Case T-481/08

Alisei

v

European Commission

(Actions for annulment – External actions and EDF – Closure of an audit and adoption of the final report – Measures adopted by the institutions in a purely contractual context – Lack of jurisdiction – Applicant not affected directly – Inadmissibility – Actions for damages – Manifest inadmissibility)

Summary of the Order

1.      Actions for annulment – Action relating in reality to a contractual dispute – Lack of jurisdiction of the Community judicature

(Arts 230 EC and 238 EC)

2.      European Communities public contracts – Projects financed by the European Development Fund in ACP countries

(Art. 230 EC)

3.      Actions for annulment – Actionable measures – Concept – Measures producing binding legal effects

(Art. 230 EC)

4.      Non-contractual liability – Conditions – Unlawfulness – Breach of the principles of sound administration and transparency – Invocation in the context of purely contractual relations

1.      Even if a letter on the repayment of a part of the advances paid to a non-profit-making association in the context of certain development cooperation and humanitarian aid projects must be understood as terminating the audit procedure in regard to the grant contracts connected with these projects and validating the external auditor’s conclusions by adopting the final report, it is not severable from the contractual context of those contracts. Indeed, the audit carried out by the external auditor chosen by the Commission is part of the latter’s exercise of its rights under those contracts and thereby comes within the contractual framework defined by them. The application for annulment of the decision allegedly contained in that letter, insofar as it concerns those contracts, is therefore inadmissible.

(see paras 54-55)

2.      Concerning public contracts receiving financial support from the European Development Fund (EDF), measures adopted by the Commission’s representatives, whether approvals or refusals to approve, endorsements or refusals to endorse, are intended solely to establish whether or not the conditions for financing have been met, and are not intended to interfere with the principle that the contracts in question remain national contracts which the beneficiary States alone are responsible for preparing, negotiating and concluding, and they cannot have that effect. The undertakings which submit tenders for or are awarded the contracts in question have legal relations only with the beneficiary State which is responsible for the contract and the measures adopted by representatives of the Commission cannot substitute, in relation to them, a decision of that institution for the decision of the ACP State which has the sole power to conclude and sign that contract. Those considerations also apply to the grant contracts concluded by an ACP State financed by the EDF.

However, those considerations are not, in themselves, sufficient to conclude that an action for annulment brought against a measure adopted by the Commission in the exercise of its own powers, by an individual concerned by that measure and to whom it is formally addressed, is inadmissible even if that measure formed part of a contractual procedure. An action for annulment may be brought before the Court against a measure under such conditions, insofar as it actually contains a decision of the Commission.

(see paras 60-64)

3.      Debts owed to the European Development Fund (EDF) as a result of an audit carried out by the Commission or at its request do not arise from the audit itself but from a breach of contractual obligations on the part of a party to a contract financed by the EDF. The audit report merely takes note of the existence of possible pre-existing irregularities and the debts which arise from them. It thus does not modify the legal position of the debtor. Moreover, the latter can contest the findings and conclusions of the audit report before the competent court in any proceeding dealing with the debts in question.

The finding in an audit report dealing with contracts financed by the EDF that there is a debt due to the EDF can thus lead to a recovery order being drawn up in respect of it and, where appropriate, to a debit note being sent to the debtor, measures which incidentally do not in themselves produce binding legal effects that are capable of affecting the interests of the debtor.

Moreover, it is not at all certain that an audit report which found debts to the EDF to exist will give rise to an act which produces binding legal effects that are capable of affecting the interests of the debtor. Even supposing that an audit report dealing with contracts financed by the EDF gave rise to a subsequent act producing binding legal effects in regard to one of the contracting parties, that audit report would merely constitute a preparatory measure in regard to the subsequent act in question and only the latter would adversely affect the person concerned. Therefore, an action for annulment cannot be brought before the Court against a Commission decision terminating the audit and validating the external auditor’s conclusions by adopting the final report.

(see paras 67, 71-75)

4.      In a contractual dispute, the mere mention of legal rules which do not arise from a contract but which are binding on the parties does not alter the contractual nature of the dispute and, as a consequence, permit the party which relies on them to evade the jurisdiction of the competent court. If it were otherwise, the nature of the dispute and, consequently, the court having jurisdiction, would change according to the rules relied on by the parties, something which would run counter to the rules of the various courts governing jurisdiction ratione materiae.

Furthermore, the Community institutions are subject to obligations flowing from the general principle of sound administration in regard to the public only in the exercise of their administrative responsibilities. On the other hand, when the relationship between the Commission and the applicant is clearly contractual, the latter can complain, in regard to the Commission, only of breaches of the terms of the contract or of the law applicable to it. Under such circumstances the applicant cannot merely invoke the non-contractual liability of the Community and the alleged breach by the Commission of the principles of sound administration and transparency in the application, but must specify the source, contractual or non-contractual, of the obligations which that institution has infringed.

(see paras 94-96)