ORDER OF THE GENERAL COURT (Fourth Chamber)
13 September 2012 (*)
(Action for damages – Instrument for Pre-Accession Assistance – Third country – National public procurement – Decentralised management – Inadmissibility – Lack of jurisdiction)
In Case T‑369/11,
Diadikasia Symbouloi Epicheiriseon AE, established in Chalandri (Greece), represented by A. Krystallidis, lawyer,
applicant,
v
European Commission, represented by F. Erlbacher and P. van Nuffel, acting as Agents,
EU Delegation to Turkey,
and
Central Finance & Contracts Unit (CFCU), established in Ankara (Turkey),
defendants,
APPLICATION for compensation in respect of the damage arising from the CFCU’s decision of 5 April 2011, and any subsequent decision, annulling the award of the contract ‘Enlargement of the European Turkish Business Centres Network to Sivas, Antakya, Batman and Van – EuropeAid/128621/D/SER/TR’ to the consortium Diadikasia Business Consultants SA (GR) – Wyg International Ltd (UK) – Deleeuw International Ltd (TR) – Cyberpark (TR), on the ground of allegedly false declarations,
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and M. van der Woude, Judges,
Registrar: E. Coulon,
makes the following
Order
Legal context
1 Under Article 162 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) (‘the Financial Regulation’), as amended, the provisions of Parts One and Three of that regulation are to apply to external actions financed by the budget, subject to the derogations provided for under Title IV, entitled ‘External Actions’, of Part Two, entitled ‘Special Provisions’ of that regulation.
2 Paragraphs 1 and 2 of Article 53c of the Financial Regulation, which appear in Part One of that regulation, provide:
‘1. Where the Commission implements the budget by decentralised management, implementation tasks shall be delegated to third countries in accordance with Article 56 and Title IV of Part Two, without prejudice to delegation of residual tasks to bodies referred to in Article 54(2).
2. In order to ensure that the funds are used in accordance with the applicable rules, the Commission shall apply clearance-of-accounts procedures or financial correction mechanisms which enable it to assume final responsibility for the implementation of the budget.’
3 Under Article 1 of Council Regulation (EC) No 1085/2006 of 17 July 2006 establishing an Instrument for Pre-Accession Assistance (IPA) (OJ 2006 L 210, p. 82), the European Union is to assist the countries listed in Annexes I and II, which include the Republic of Turkey, in their progressive alignment with the standards and policies of the European Union, including, where appropriate, the acquis communautaire, with a view to membership.
4 Article 2 of Regulation No 1085/2006 provides that assistance is to be programmed and implemented in accordance with five components, one of which concerns regional development.
5 Paragraph 1 of Article 10 of Commission Regulation (EC) No 718/2007 of 12 June 2007 implementing Regulation No 1085/2006 (OJ 2006 L 170, p. 1), entitled ‘General principles for implementation of assistance’, provides:
‘Unless otherwise provided for in paragraph 2, 3 and 4, decentralised management, where the Commission confers the management of certain actions on the beneficiary country, while retaining overall final responsibility for general budget execution in accordance with Article 53c of [the Financial] Regulation … and the relevant provisions of the EC Treaties, shall apply to the implementation of assistance under … Regulation [No 1085/2006].
For the purposes of assistance under … Regulation [No 1085/2006], decentralised management shall cover at least tendering, contracting and payments.
In the event of decentralised management, operations shall be implemented in accordance with the provisions laid down in Article 53c of [the Financial] Regulation.’
6 Article 21(1)(f) of Regulation No 718/2007 reads as follows:
‘The beneficiary country shall designate the following different bodies and authorities:
…
(f) an operating structure by IPA component or programme’.
7 In accordance with Article 28(1) and (2)(f) of Regulation No 718/2007:
‘1. For each IPA component or programme, an operating structure shall be established to deal with the management and implementation of assistance under … Regulation [No 1085/2006].
The operating structure shall be a body or a collection of bodies within the administration of the beneficiary country.
2. The operating structure shall be responsible for managing and implementing the programme or programmes concerned in accordance with the principle of sound financial management. For those purposes, it shall carry out a number of functions that include:
…
(f) arranging for tendering procedures, grant award procedures, the ensuing contracting, and making payments to, and recovery from, the final beneficiary;
…’
8 On 29 November 2007, the Commission of the European Communities adopted Decision C(2007)5729 on the Multi-annual Operational Programme ‘Regional Competitiveness’ for European Union assistance in the context of the ‘Regional Development’ component of the IPA in Turkey (‘the multi-annual Programme’).
9 On 11 July 2008, the Commission concluded a Framework Agreement with the Republic of Turkey which generally defines the rules for cooperation concerning IPA assistance (‘the Framework Agreement’). Article 6, entitled ‘Establishment and designation of structures and authorities for decentralised management’, of Section II, entitled ‘Management Structures and Authorities’, provided in paragraph (1)(f) that it was for the Republic of Turkey, in the event of decentralised management of the programme, to designate operation structures. Section III of the Framework Agreement lays down the conditions for delegating European Union powers to the Republic of Turkey in the event of decentralised management.
10 Paragraph 6(a) and (b), and the sixth indent thereof, of Annex A to the Framework Agreement reads as follows:
‘(a) An operating structure shall be established for each IPA component or programme to deal with the management and implementation of assistance under IPA. The operating structure shall be a body or a collection of bodies within the administration of the [Republic of Turkey].
(b) The operating structure shall be responsible for managing and implementing the IPA programme or programmes concerned in accordance with the principle of sound financial management. For those purposes, the operating structure shall carry out a number of functions that include:
…
– arranging for tendering procedures, grant award procedures, the ensuing contracting, and making payments to, and recovery from, the final Beneficiary.’
11 On 24 July 2009, the Commission concluded a Financing Agreement with the Republic of Turkey concerning a multi-annual operating programme (‘the Financing Agreement’).
12 In accordance with Article 14(1) and (2) of the Financing Agreement, first, the implementation of the multi-annual Programme by the Republic of Turkey is ensured on the basis of decentralised management and, second, the conditions for delegating management powers are those set out in Section III of the Framework Agreement.
13 Under Article 26(1) of the Financing Agreement, in accordance with Paragraph 6(a) of Annex A to the Framework Agreement, the bodies constituting the operating structure of the multi-annual Programme are, first, the ‘Ministry of Labour and Social Security, IPA Management Department (EU Coordination Department)’ and, second, the Central Finance and Contracts Unit (CFCU). Under Article 26(2) of the Financing Agreement, the functions and responsibilities of the operating structure are, in accordance with Article 8 of the Framework Agreement, those set out in paragraph 6(b) of Annex A to that Framework Agreement.
Background to the dispute
14 The applicant, Diadikasia Symbouloi Epicheiriseon AE, is a limited company under Greek law which provides specialised services to undertakings and entities in the private and public sectors.
15 On 21 January 2010, on the basis of Regulation No 1085/2006, a contract notice for a service contract in Turkey with the reference 2010/S 14‑017006 and the publication reference EuropeAid/128621/D/SER/TR, headed ‘TR‑Ankara: IAP – Enlargement of the European Turkish Business Centres Network to Sivas, Antakya, Batman and Van’ was published in the Supplement to the Official Journal of the European Union (OJ S 14) (‘the contract notice’). The contract in question had the objective of reinforcing the competitiveness of small and medium-sized enterprises in Turkey. The project provided for the establishment of four business centres (two small ones and two medium-sized ones) in Turkish provinces selected under the multi-annual operational programme for regional competitiveness. The contracting authority designated in that contract notice was the CFCU.
16 Under the pre-selection procedure, several tenders, including that of a consortium of which the applicant was a leading member (the ‘consortium’), were submitted. Following submission of the consortium’s tender, the CFCU requested specific clarifications concerning it, in particular as regards a key expert who was proposed. In response to those requests, the applicant, inter alia by letter of 18 October 2010 to the CFCU, supplied the information concerning that key expert.
17 By letter dated 11 January 2011, the CFCU informed the applicant that the contract would be awarded to the consortium, subject to the presentation, within 15 days, of acceptable evidence as to the exclusion situations and/or the selection criteria of the tendering procedure at issue. That letter also stated that those documents concerned in particular the financial, economic, technical and professional capacity of the consortium.
18 In response to the letter of 11 January 2011, the applicant submitted evidence in support of its tender by letter dated 25 January 2011.
19 By letter dated 10 March 2011, the CFCU indicated to the applicant that, as the contracting authority responsible for preparing the contract, it had identified inconsistencies between the curriculum vitae of the key expert and the evidence presented in respect of that key expert. Consequently, the CFCU requested the applicant to provide it with explanations as to those inconsistencies.
20 By letter dated 11 March 2011, the applicant submitted to the CFCU documentary evidence and information concerning the key expert.
21 By letter dated 5 April 2011, the CFCU informed the applicant that, following the letters of 11 January, 10 March and 11 March 2011, and in the light of information communicated by the EU Delegation to Turkey, concerning in particular the key expert, the evaluation of its offer was vitiated by a false declaration. For that reason, the CFCU, in its capacity as the contracting authority, indicated that the contract would not be awarded to the consortium.
22 By letter dated 12 April 2011, the applicant disputed the substance of the allegations of false declaration made by the CFCU in the letter of 5 April 2011, submitted additional information on that matter and requested the CFCU to re-examine its decision not to award the contract to the consortium.
23 By letter dated 20 April 2011, the CFCU replied that it was not in a position to re-examine the decision not to award the contract to the consortium. In that regard, it stated, first, that ‘the EU Delegation to Turkey is the Contracting Authority of this project subject to claim (Development of European Turkish Business Centres)’ and, second, that it was not in a position to approve the signature of the contract with the consortium for the project at issue.
24 By letters of 3 and 4 May 2011, addressed respectively to the CFCU and to the EU Delegation to Turkey, the applicant again challenged the substance of the decision not to award the contract to the consortium and requested a copy of the decision of that EU delegation communicated to the CFCU in order to ascertain its reasoning.
25 By letter of 13 May 2011, the CFCU replied, inter alia, to the applicant’s letter of 3 May 2011 and, in this respect, stated, first, that, as the contracting authority and in the light of the obligation to respect confidentiality, it could not disclose the correspondence relating to tenders, and, second, that the grounds for refusing to approve the contract could be requested directly from the EU Delegation to Turkey.
26 By letter dated 3 June 2011, the EU Delegation to Turkey replied to the applicant’s letter of 4 May 2011 and, in that regard, pointed out that, in the context of the present decentralised procedure, the CFCU was the contracting authority and that it had carried out only an ex-ante control itself. It added that, in that context, the decision of the CFCU had been taken after consideration of the results of that control carried out by the EU delegation.
Procedure and forms of order sought by the parties
27 By application lodged at the Registry of the General Court on 5 July 2011, the applicant brought the present action for compensation in respect of the damage allegedly suffered following adoption of the decision of 5 April 2011.
28 By a separate document, lodged at the Court Registry on 21 November 2011, the Commission raised an objection of inadmissibility on the basis of Article 114(1) of the Rules of Procedure of the General Court. The applicant submitted its observations on that objection on 18 January 2012.
29 Having received notification of the application, the EU Delegation to Turkey did not respond to the application in the proper form within the time prescribed.
30 The CFCU, having received notification of the application, lodged a statement in defence with the Court Registry on 11 November 2011. Having established that the CFCU was not represented or assisted in accordance with the provisions of Article 19 of the Protocol on the Statute of the Court of Justice of the European Union, the Registrar of the General Court returned the abovementioned statement in defence to the CFCU. The CFCU did not subsequently respond to the application in the proper form within the time prescribed.
31 Following a request for information from the Court, concerning, in particular, the legal status of the CFCU, the Commission and the applicant replied on 8 and 10 May 2012 respectively. Following a fresh request for information from the Court to the Commission concerning the Financing Agreement, the Commission replied to that request on 6 June 2012.
32 The applicant claims that the Court should:
– award compensation for the damage which it has suffered as a result of the decision of 5 April 2011;
– order the Commission to pay the costs.
33 The Commission contends that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
Law
34 Under Article 114(1) of the Rules of Procedure, if a party so requests, the Court may make a decision on admissibility without going into the substance of the case. Pursuant to Article 114(3) of those rules, unless the Court otherwise decides, the remainder of the proceedings are to be oral.
35 Moreover, under Article 111 of the Rules of Procedure, where an action is manifestly inadmissible, the General Court may, without taking further steps in the proceedings, give a decision by way of reasoned order.
36 In the present case the Court considers that it has sufficient information from the documents before it and that there is no need to open the oral procedure.
Findings of the Court
37 Pursuant to Article 268 TFEU and the second paragraph of Article 340 TFEU, ‘[i]n the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties’.
38 In the present case, the action for compensation is directed jointly against the CFCU, the Commission and the EU Delegation to Turkey.
39 As a preliminary point, although the Commission did not expressly raise a head of inadmissibility in this regard, the Court takes the view that it is necessary for it to assess of its own motion the admissibility of the action in so far as it is directed against the EU Delegation to Turkey.
40 First, it is necessary to note that, under Article 18(4) TEU, ‘[t]he High Representative [of the European Union for Foreign Affairs and Security Policy] shall be one of the Vice-Presidents of the Commission. He shall ensure the consistency of the Union’s external action. He shall be responsible within the Commission for responsibilities incumbent on it in external relations and for coordinating other aspects of the Union’s external action. In exercising these responsibilities …, and only for these responsibilities, the High Representative shall be bound by Commission procedures to the extent that this is consistent with paragraphs 2 and 3.’
41 Under Article 27(3) TEU, ‘[i]n fulfilling his mandate, the High Representative shall be assisted by a European External Action Service …’.
42 Article 221 TFEU provides as follows:
‘1. Union delegations in third countries and at international organisations shall represent the Union.
2. Union delegations shall be placed under the authority of the High Representative …’
43 Next, as is apparent from the provisions of Regulation No 1085/2006, in particular Article 3(2) thereof, the Commission is responsible for ensuring coordination and coherence between assistance granted under different components of Pre-Accession Assistance.
44 Finally, under the second subparagraph of Article 5(3) of Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the European External Action Service (OJ 2010 L 201, p. 30), ‘[i]n areas where the Commission exercises the powers conferred upon it by the Treaties, the Commission may, in accordance with Article 221(2) TFEU, … issue instructions to delegations, which shall be executed under the overall responsibility of the Head of Delegation’.
45 To the extent to which EU delegations do not have legal personality, and inasmuch as the present action concerns the implementation, by the EU Delegation to Turkey, of assistance under the IPA, in respect of which the Commission is responsible for ensuring coordination and coherence, the Commission is responsible for the actions and omissions liable to be attributed to that EU delegation in that regard. Consequently, the present action must be dismissed as being manifestly inadmissible in so far as it is directed against the EU Delegation to Turkey.
46 Primarily, the two pleas of inadmissibility raised by the Commission require examination.
47 As regards the first plea of inadmissibility, alleging that the action should be declared inadmissible in so far as it is brought against the CFCU, it is sufficient to point out that, according to case-law, the term ‘institution’ employed in the second paragraph of Article 340 TFEU must not be understood as referring only to the institutions of the European Union listed in Article 13(1) TEU, but as also covering, with regard to the system of non-contractual liability established by the FEU Treaty, European Union bodies (Case C‑370/89 SGEEM and Etroy v EIB [1992] ECR I‑6211, paragraph 16).
48 In the present case, it is apparent from the documents in the case-file that the CFCU is an authority governed by Turkish law and attached to the Government of the Republic of Turkey. That statutory characteristic is evident from Article 26(1) of the Financing Agreement. The CFCU is expressly designated in that provision as being one of the two bodies constituting the operating structure of the multi-annual Programme. Under both Article 21(1)(f) of Regulation No 718/2007 and Paragraph 6a of Annex A to the Framework Agreement, it is for the beneficiary country – in the present case, the Republic of Turkey – to name an operating structure by IPA component or programme. Consequently, the CFCU cannot be considered to be an institution or a body of the European Union for the purposes of the second paragraph of Article 340 TFEU.
49 It follows from the foregoing that the General Court has no jurisdiction to rule on the present action for compensation in so far as it is directed against the CFCU.
50 As regards the second plea of inadmissibility alleging that the CFCU’s letter of 5 April 2011 is not an act of the European Union, it must be borne in mind that, according to settled case-law, the incurrence of non-contractual liability by the European Union, within the meaning of the second paragraph of Article 340 TFEU, is subject to the fulfilment of a set of conditions, namely the unlawfulness of the conduct alleged against its institutions, the fact of damage, and the existence of a causal link between the conduct and the damage complained of (Case T‑267/94 Oleifici Italiani v Commission [1997] ECR II‑1239, paragraph 20, and Case T‑193/04 Tillack v Commission [2006] ECR II‑3995, paragraph 116); if any one of those conditions is not satisfied, the action must be dismissed in its entirety, without its being necessary to examine the other preconditions for such liability (Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraph 81; Case T‑170/00 Förde‑Reederei v Council and Commission [2002] ECR II‑515, paragraph 37; and Tillack v Commission, paragraph 119).
51 In the present case, first, the Court also considers it appropriate to point out, of its own motion, that, in the context of the present action, the applicant seeks compensation for the damage arising not only from the CFCU’s letter of 5 April 2011, but also from any subsequent decision. As regards the damage allegedly caused by any decision subsequent to the first, it must be noted that, according to settled case-law, under Article 44(1)(c) of the Rules of Procedure of the General Court, an application must state the subject-matter of the proceedings, which means that the subject-matter of the proceedings should be sufficiently precise to enable the defendant to prepare its defence in that regard and the Court to understand the purpose of the applicant’s claims (Case T‑146/95 Bernardi v Parliament [1996] ECR II‑769, paragraphs 25 and 26, and Case T‑192/96 Lebedef v Commission [1996] ECR‑SC I‑A‑363 and II‑1047, paragraphs 33 and 34). However, it is clear that the present action, in that it seeks to obtain compensation for the damage arising from any decision subsequent to that first letter, in so far as it does not make it possible for the Court to identify any decision subsequent to that letter, does not meet the requirements of sufficient precision which stem from Article 44(1)(c) of the Court’s Rules of Procedure and must, in that regard, be declared manifestly inadmissible.
52 Second, as regards the application for compensation for the damage arising from the CFCU’s letter of 5 April 2011, it is apparent from the case-law that public contracts awarded by third countries and capable of benefiting from assistance under the IPA, subject to the principle of decentralised management, remain national contracts which only the national contracting authority responsible for following them through has the power to prepare, negotiate and conclude, the involvement of the Commission representatives in the procedure for the award of those contracts being confined solely to establishing whether or not the conditions for European Union financing are met. Moreover, the undertakings that submit tenders which are awarded the contract in question have legal relations only with the third country which is responsible for the contract and the measures adopted by representatives of the Commission cannot have the effect of substituting, in relation to them, a European Union decision for the decision of that State (see, by analogy, Case C‑257/90 Italsolar v Commission [1993] ECR I‑9, paragraph 22).
53 It follows that the actual decision to award the contract falls within the powers reserved by the Financing Agreement to the third country, the role of the Commission representative in that regard being limited, with a view to ensuring the financial propriety of the transaction, to approving the proposal for the award of the contract made by the representative of the third country concerned (see, by analogy, Italsolar v Commission, cited in paragraph 52 above, paragraph 23).
54 In the present case, it is not a matter of dispute between the parties that, as arises in particular from Article 10 of Regulation No 718/2007, the principle of decentralised management applies to the implementation of the regional development component of the assistance under the IPA at issue and that this competence of the third country, namely the Republic of Turkey, which arises from that, is confirmed by the contract notice, which designated the CFCU as the contracting authority.
55 First, as has been stated in paragraph 48 above, the CFCU was one of the two implementing structures of the multi-annual Programme, created under Turkish law and attached exclusively to the Government of the Republic of Turkey. Consequently, in accordance with Article 28 of Regulation No 718/2007, it was responsible for the implementation of assistance under the IPA for the regional development component in Turkey, and, more precisely, as also arises from the sixth point of Paragraph 6(b) of Annex A to the Framework Agreement, for arranging for tendering procedures, grant award procedures, the ensuing contracting, and for making payments to, and ensuring recovery from, the final beneficiary.
56 Next, the CFCU’s letter of 5 April 2011 was addressed solely by it, in its capacity as the contracting authority, a capacity, moreover, which had been expressly pointed out by it at the stage of concluding that letter when it informed the applicant of the decision not to award it the contract.
57 Finally, that consideration cannot be called into question in the light of the terms of the CFCU’s letter of 20 April 2011, in which it indicated to the applicant that ‘the EU Delegation to Turkey [was] the Contracting Authority of the project subject to claim (Development of European Turkish Business Centres)’. Such an indication by the CFCU is manifestly incorrect. As appears expressly from the legal and contractual provisions referred to above and applicable to the present case, and as the CFCU, in its letter of 13 May 2011, and the EU Delegation, in the letter dated 3 June 2011, expressly pointed out, in the present case, the CFCU alone had the status of contracting authority, and, therefore, was alone competent, on behalf of the Republic of Turkey, under the method of decentralised management maintained under the implementation of the ‘regional development’ component of the IPA, to adopt the decision to award the contract at issue, the Commission being competent solely to verify whether the conditions governing the financing of the project by the European Union had been satisfied.
58 Third, it is also necessary to reject the applicant’s argument based on the reference to the case-law of the Court of Justice of the European Union concerning acts against which an action for annulment may be brought, as provided for in Article 263 TFEU, in order to identify the measures covered by the second paragraph of Article 340 TFEU. As has been pointed out in paragraph 50 above, in order for the European Union to incur non-contractual liability, within the meaning of the second paragraph of Article 340 TFEU, there must be fulfilment of a set of conditions which are independent of the conditions governing the admissibility of an action for annulment.
59 Fourth, contrary to the applicant’s contention, the provisions of the PRAG (Practical Guide to contract procedures for EU external actions) do not support its argument that the decision not to accept the consortium’s tender was taken by the EU Delegation to Turkey. In that regard, as is expressly stated at point 2.9.2 of the PRAG, in the context of decentralised management, the ex-ante checks carried out by the EU delegation at the stage of signing the original contracts are aimed at endorsing the contract in order to confirm that the European Union will finance the project concerned. This principle appears with equal clarity from the terms of point 2.2 of the PRAG, which details the different management modes. As regards decentralised management, it is evident, as is indicated in the box entitled ‘[s]ome clarifications with regard to decentralised management’, that, in the context of that management mode, ‘[t]he intervention of the Commission’s representatives within the decentralised procedures for the conclusion or implementation of the contracts financed in the context of external actions are limited to verifying whether or not the conditions for the EU financing are met’.
60 Fifth, it must be noted that, in its reply of 10 May 2012 to the Court’s requests for information, the applicant provided the Court with a copy of the ‘Memorandum of Understanding on the establishment of a [CFCU] between the Government of Turkey and the European Commission’, signed on 14 February 2002, as well as a copy of a page from the CFCU internet site explaining the main areas of the decentralised management system in Turkey. It is clear that those two documents expressly reproduce the terms and provisions set out in particular in the Framework Agreement and the Financing Agreement and from which it is apparent that, first, the decentralised management involved a transfer of powers relating to the award of contracts in favour of the CFCU and, second, that the Commission’s competence was solely to establish whether or not the conditions for European Union financing had been met.
61 Consequently, as is apparent from the findings set out in paragraphs 51 to 60 above, in so far as the Commission’s powers were limited to establishing whether or not the conditions for European Union financing had been met, it was not for the Commission to adopt any decision awarding the contract at issue to one of the tenderers (see, by analogy, Italsolar v Commission, cited in paragraph 52 above, paragraph 34).
62 It follows from all of the foregoing considerations that, first, the present action, in that it is directed against the Commission, is inadmissible, inasmuch as the Commission is not the author of the letter of 5 April 2011, and, second, as the CFCU’s letter of 5 April 2011 was adopted by an authority governed by Turkish law, attached exclusively to the Republic of Turkey and responsible, as the contracting authority, for conducting the entire procedure for awarding the public contract at issue in the present case, the General Court does not have jurisdiction, having regard to the provisions of the FEU Treaty, to rule on compensation for the damage which that measure might allegedly have caused to the applicant. Such damage which may have been caused by national institutions is capable of giving rise to liability only on the part of those institutions and the national courts, that is to say, in the present case, the Turkish courts, alone retain jurisdiction to order compensation (see, to that effect, Case 175/84 Krohn Import-Export v Commission [1986] ECR 753, paragraph 19, and Joined Cases 89/86 and 91/86 L’Étoile commerciale and CNTA v Commission [1987] ECR 3005, paragraph 17).
63 That conclusion cannot be called into question by the applicant’s argument that, since the Commission finances the projects and initiatives which further its priorities in respect of external relations policy with third countries, each project financed by the European Union gives rise to legal consequences that are attributable to the Commission. That argument is not supported and, consequently, must be declared manifestly inadmissible in the light of Article 44(1)(c) of the Rules of Procedure of the General Court.
64 Likewise, as regards the comment made by the applicant as to the fact that, in its observations made following the complaint which it had lodged with the European Ombudsman, the Commission had not raised any inadmissibility, such as the heads of inadmissibility which it had raised in the present case, suffice it to note that the action for compensation constitutes an independent means of obtaining redress provided for by the FEU Treaty and that the assessment of the admissibility of such an action by the General Court concerns exclusively the matters of fact and law specific to that action, without the need in any way to take account of any arguments which may have been raised by one of the parties in other proceedings, a fortiori following a complaint lodged with the European Ombudsman, which constitutes a non-contentious means of obtaining redress.
65 It follows from all of the foregoing that the present action for compensation must be dismissed, first, as being manifestly inadmissible in that it is directed against the EU Delegation to Turkey, and in so far as it is based on any decision subsequent to the letter of 5 April 2011, second, as being inadmissible in that it is directed against the Commission, and, third, on grounds of lack of jurisdiction, in that it is directed against the CFCU and is based on the CFCU’s letter of 5 April 2011.
Costs
66 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay its own costs as well as the costs incurred by the Commission, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1. The action is dismissed.
2. Diadikasia Symbouloi Epicheiriseon AE shall bear its own costs and pay those incurred by the European Commission.
Luxembourg, 13 September 2012.