JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

17 February 2000 (1)

(Action for annulment - Community policy for research and technologicaldevelopment - MAST III Programme - Decision adopting the list of projectproposals eligible for a Community contribution - Exclusion of a proposal forCommunity financing - Interest in bringing an action - No need to adjudicate)

In Case T-183/97,

Carla Micheli, Andrea Peirano, Carlo Nike Bianchi and Marinella Abbate,researchers with the Ente per le Tecnologie, l'Energia e l'Ambiente (ENEA,Centre for Research into New Technologies, Energy and the Environment), apublic institution governed by Italian law having its headquarters in Rome,represented by Wilma Viscardini Donà, Mariano Paolin and Simonetta Donà, ofthe Padua Bar, with an address for service in Luxembourg at the Chambers ofErnest Arendt, 39 Rue Mathias Hardt,

applicants,

v

Commission of the European Communities, represented by Eugenio de March, ofits Legal Service, acting as Agent, assisted by Alberto Dal Ferro, of the VicenzaBar, with an address for service in Luxembourg at the office of Carlos Gómez dela Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of the Commission's decision establishing thelist of project proposals eligible for a Community contribution under the specificprogramme of research and technological development, including demonstration,in the field of marine science and technology (1994 to 1998), in so far as it excludesthe Posible project coordinated by Carla Micheli, which decision was notified by theCommission's letter of 26 March 1997, received by fax on 17 April 1997 and bypost on 20 May 1997,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fourth Chamber),

composed of: R.M. Moura Ramos, President, V. Tiili and P. Mengozzi, Judges,

Registrar: J. Palacio González, Administrator,

having regard to the written procedure and further to the hearing on 9 September1999,

gives the following

Judgment

    Legal and factual background of the dispute

1.

    By Decision 94/804/EC of 23 November 1994, the Council adopted a specificprogramme of research and technological development including demonstration(hereinafter 'RTD‘) in the field of marine science and technology (1994 to 1998)(OJ 1994 L 334, p. 59) also designated under the acronym 'MAST III‘. Thatprogramme forms part of the fourth framework programme of the EuropeanCommunity for RTD activities for the period 1994 to 1998 adopted by Decision1110/94/EC of the European Parliament and the Council of 26 April 1994 (OJ 1994L 126, p. 1), as amended by Decision 616/96/EC of the European Parliament andthe Council of 25 March 1996 following the accession of new Member States to theEuropean Union (OJ 1996 L 86, p. 69). Pursuant to Annex III to Decision 94/804,the programme is to be executed through indirect action, whereby RTD activitiesare primarily proposed and led by third parties, to which the Commission makesa financial contribution.

2.

    Article 2 of Decision 94/804 determines the 'amount deemed necessary‘ forcarrying out the specific programme for 1994 to 1998 as ECU 228 million. Thatamount was increased to ECU 243 million by Decision 616/96. Annex II toDecision 94/804 sets out an 'indicative breakdown‘ of that amount between fourareas of research. Area A covers marine science, Area B strategic marine research,Area C marine technology and Area D supporting initiatives.

3.

    According to Articles 4 to 6 of Decision 94/804, the Commission is responsible forthe implementation of the MAST III Programme, within the limit of the creditsdetermined for each year by the budgetary authority. In 1994, pursuant to Article5 of Decision 94/804, the Commission adopted a work programme, in accordancewith the objectives set out in Annex I and the indicative financial breakdown setout in Annex II to that decision. That programme set out in detail, inter alia, thescientific and technological objectives and research tasks to be carried out, and theimplementation schedule. The latter provided for the issue of a first call forproposals for 1995 and 1996 and a second for 1997 and 1998. A third call forproposals, concerning operational forecasting of the seas and oceans was publishedsubsequently (OJ 1997 C 183, p. 26).

4.

    Following the second call for proposals under the MAST III Programme, 214project proposals were submitted. They included, in Area A (marine science), theproposal entitled 'Stability and recovery of W. Mediterranean Posidonia oceanicabeds: a large scale assessment‘, also called 'Posible‘, submitted by the Ente perle Nuove Tecnologie, l'Energia e l'Ambiente (ENEA, Centre for Research intoNew Technologies, Energy and the Environment), as coordinating body, with theparticipation of three other European bodies.

5.

    A general survey of the method of handling and evaluating project proposalssubmitted in the context of Community research and development programmes iscontained in two documents known as the Blue Guide and the White Booklet, thelatter of which was sent to the participants for information purposes.

6.

    The procedure for assessing proposals is regulated as follows. Article 7 of Decision94/804 provides that the assessment of the proposed activities and any adjustmentto the indicative breakdown of the amount deemed necessary - in the case ofactivities where the estimated amount of the Community contribution is ECU 0.35million or more, or which include participation by legal entities from non-membercountries or international organisations - is to be subject to the committeeprocedure set out in Article 6 of that decision. It is apparent from the WhiteBooklet and the Blue Guide that the procedure for selecting project proposals tobe funded consists, in practice, of two main stages. In the first stage, each proposalis examined in two phases by independent experts. The proposals are thenclassified by the Commission in four categories, on the basis of the points awardedby the external assessors. In the second stage, the Commission makes a selectionon the basis of that classification and draws up a draft list of proposals to befunded by the Community. The draft list is then submitted to the ProgrammeCommittee, established by Article 6 of Decision 94/804, which is composed ofrepresentatives of the Member States and chaired by the representative of theCommission (hereinafter 'the MAST Committee‘), for its opinion. Finally, theCommission adopts the list of proposals to be funded, where it has been approvedby the committee.

7.

    In the first stage, the White Booklet and the Blue Guide state that the examinationof the project proposals by independent assessors is divided into two phases. In thefirst, each proposal is examined by a panel of experts responsible for assessing itsscientific and technical quality. That phase eliminates proposals obtaining less than70 points. In the second phase, a larger panel of assessors, including specialists inscientific policy, industry and management, or persons with experience relevant tothe economic, social or environmental aspects of the proposal, assesses its strategic,economic and policy aspects. Those two phases begin with an individualexamination of the proposals by each expert, followed by group discussions aimedat reaching agreement on a common assessment. After each of those phases, theassessors draw up an assessment report, or 'consensus report‘, on the proposalexamined.

8.

    The consensus report relating to the Posible proposal states that it obtained 73points in the first phase and 26 points in the second, thus totalling 99 points. Another proposal, entitled 'The Arctic Ocean System in the Global Environment‘(hereinafter 'the AOSGE proposal‘), obtained only 63 points in the first phase andwas therefore not recommended in the consensus report signed on 20 November1996 for admission to the second phase.

9.

    It is common ground, however, that, in the first phase, 18 of the 214 projectproposals submitted to the Commission were assessed twice as to their scientificand technical quality, by separate panels of experts, on the basis of a statement inthe Blue Guide that '[t]o verify the standards and the soundness of the evaluation,the Commission staff may request that between five and ten per cent of proposalsare re-evaluated by a second panel of experts. In cases where this secondevaluation highlights a large difference of opinion, a third evaluation is possible‘. The Commission states that, in this case, before the examination of the proposalscommenced, it selected those which were to be assessed twice by picking each 15thproposal in alphabetical order. At the hearing on the application for interimmeasures, the Commission stated, in answer to a question from the President of theCourt of First Instance, that two proposals, including the AOSGE proposal, werealso assessed twice because of their scope and complexity.

10.

    In the present case, the panel of experts responsible for the control assessment ofthe AOSGE proposal awarded it 82 points in the first phase and recommended inthe consensus report signed on 14 November 1996 that it be admitted to thesecond.

11.

    Because of the significant difference between the assessments in the consensusreports of 14 and 20 November 1996 relating to the AOSGE proposal, theCommission decided that it should undergo a third assessment under the firstphase. That third assessment was entrusted to the panel of experts responsible forassessing the strategic, economic and political aspects of the AOSGE proposal atthe second phase of the examination. The documents before the Court show thatthat panel of experts carried out the third assessment by examining the first twoconsensus reports relating to the AOSGE proposal. It took the average of themarks in the first two reports relating to the first phase and awarded 23 points tothe AOSGE proposal in the second phase. The AOSGE proposal thus obtained73 points in the first phase and therefore received a total of 96 points in the firststage of the assessment.

12.

    In the second stage of the assessment, the Commission selected the proposals foraction to be funded and drew up a draft decision containing a principal list and areserve list. The selection of the proposals and the organisation of the two listswere based on the scores awarded to the proposals by the independent experts atthe conclusion of the first stage. In that respect, the only exception concerned theAOSGE proposal, which, in view of its strategic importance in an area where noother proposal had been financed, had been placed on the reserve list higher thanother proposals in the same area, even though the latter proposals had obtaineda higher number of marks.

13.

    The MAST Committee approved the draft principal list submitted by theCommission. As to the draft reserve list, the documents before the Court showthat it was approved after it had been amended by the Commission, which, takinginto consideration the committee's desire to strike a better balance in the projectproposals on the reserve list between the principal areas A, B, C and D of theMAST III Programme, struck out the last five proposals in Area A (including thePosible proposal) and added one proposal in Area C.

14.

    Subsequently, the Commission adopted its decision drawing up the list of projectproposals eligible for a Community contribution under the specific RTDprogramme in the field of marine science and technology (1994 to 1998) ('thecontested decision‘). Amongst those proposals, 58 were included in the principallist of proposals accepted for Community assistance and 15 others were placed ona reserve list.

15.

    According to Article 2 of the contested decision, the project proposals on thereserve list will receive Community funding 'in so far as budget appropriationswould remain available after the exhaustion of the commitment appropriations usedfor the actions appearing in the principal lists, in particular in the event ofwithdrawal of actions appearing in this list, in the event of negotiation of contractsto amounts lower than those provided for in this decision, in the event of non-observation of their obligations by contract participants if additional funds wouldbe allocated by the budgetary authority or in the event of adjustments of thebudgetary appropriations within the same post. Recourse to the [reserve] list ... willbe made according to the priorities fixed therein and according to the aims of thespecific programme, as well as according to the progress made in contractnegotiations, and to the amounts made available‘.

16.

    In a letter dated 26 March 1997 to Dr Micheli, which she received on 20 May 1997,the Director of Directorate D 'RTD actions: marine science and technology‘ in theCommission's Directorate-General for Science, Research and Development (DGXII) informed ENEA that, following an assessment by independent experts andconsultation with the MAST Committee, the Posible proposal had not beenselected for financial contribution under that programme. The Commissionexplained that it had been obliged to select a small number of project proposals tobe funded owing to the limited budget appropriations available.

Procedure and forms of order sought by the parties

17.

    By application lodged at the Registry of the Court of First Instance on 19 June1997, C. Micheli, A. Peirano, C.N. Bianchi and M. Abbate, all researchers withENEA, brought the present action.

18.

    By a separate document lodged at the Registry on the same date, the applicantsalso sought suspension, pursuant to Article 185 of the EC Treaty (now Article 242EC), of the application of the contested decision adopting the principal list and thereserve list of project proposals to be funded under the MAST III Programme and,accordingly, of the measure excluding the Posible proposal from such funding. Inthe alternative, they sought partial suspension of the contested decision in so faras it adopted the reserve list. By order of 26 September 1997, the President of theCourt of First Instance dismissed the application for interim measures.

19.

    By a separate document lodged at the Registry on 4 August 1997, the Commissionraised an objection of inadmissibility pursuant to Article 114(1) of the Rules ofProcedure of the Court of First Instance. The applicants submitted their writtenobservations by a document lodged at the Registry on 6 October 1997. By orderof 13 January 1998, the First Chamber of the Court of First Instance decided tojoin examination of the objection of inadmissibility to the substance of the case andasked the Commission to submit its defence.

20.

    Upon hearing the report of the Judge-Rapporteur, the Court of First Instance(Fourth Chamber) decided to open the oral procedure. In the context of measuresof organisation of procedure, the parties were asked to reply in writing to certainquestions before the hearing.

21.

    The parties presented oral argument and answered the questions put to them bythe Court at the hearing on 9 September 1999.

22.

    The applicants claim that the Court should:

-    hold the action admissible;

-    annul the decision concerning the approval of the proposals eligible forCommunity funding or held admissible under the MAST III Programme,and therefore annul the decision excluding the Posible proposal;

-    order the Commission to pay the costs.

23.

    The Commission contends that the Court should:

-    dismiss the action as inadmissible and unfounded;

-    order the applicants to pay the costs.

Law

Arguments of the parties

24.

    The Commission challenges the admissibility of the action, maintaining that theapplicants are not the addressees of the contested decision and that it does notconcern them directly. It recalls that the Posible proposal was submitted by ENEA,in its capacity as coordinator, and by three other participants. In the event of theproposal being approved and entered on the principal list, those bodies would havebeen the recipients of the sums paid by the Commission. The applicants could not,as such, be regarded as direct addressees of the decision to exclude the Posibleproposal from possible Community financing.

25.

    In the Commission's view, the applicants' position is essentially identical to that ofan employee of an undertaking, or of any other person who works with anundertaking, who claims to have an interest of his own distinct from that of theundertaking in question. To hold this action admissible would amount torecognition that all persons who, in varying degrees, depend upon or cooperatewith a body that has submitted a proposal with a view to obtaining Communityfinancing are directly concerned by the decision to refuse such financing.

26.

    The applicants argue that the contested decision is of direct and individual concernto them even though they are not its addressees. The Posible proposal wasconceived and developed by Carla Micheli in collaboration with other Italian andforeign researchers. The applicants were all mentioned expressly and by name inthe proposal, and the qualifications and professional experience of each of theresearchers who worked together in drawing up the proposal had a direct impacton the assessment of its scientific value. They therefore had an interest distinctfrom that of ENEA in the implementation of the proposal.

27.

    The applicants' position was not identical to that of an employee of an undertaking,since salaried researchers of ENEA had a direct and immediate interest in theCommunity financing of the proposals in which they were involved. Thedevelopment of their career, the allocation of productivity premiums and otheradvantages, together with the acquisition of professional prestige and of fame in thescientific field, were directly affected by the grant of financing for the proposalspromoted by them.

28.

    On the substance of the case, the applicants raise four pleas in law in support oftheir claims. First, they maintain that the procedure followed by the Commissionis vitiated by a misuse of powers and an infringement of the principle of non-discrimination in that the AOSGE proposal, having obtained 96 points, was enteredon the reserve list, whereas the Posible proposal was excluded from it, even thoughit had obtained a higher number of points (99) on the experts' assessment.

29.

    In their second plea, they argue that there has been an infringement of the duty tostate reasons and of the principle of transparency. They claim that the Commissionhas not explained the reasons justifying the re-examination of the AOSGE proposalin the first phase of the first stage, and that it should have specifically given reasonsas to why that proposal was entered on the reserve list.

30.

    In the third plea, the applicants challenge the assertion that no funds were availableto finance the proposals on the reserve list, arguing that the Commission made atransfer of funds from Area A to other areas of the programme. They argue thatthere has been an infringement of the principle of transparency and of Article 7 ofCouncil Decision 94/804, which provides that any adjustment to the indicativebreakdown of the amount deemed necessary as set out in Annex II to that decisionis to be adopted in accordance with the management committee procedureestablished by Article 6 of the decision.

31.

    The fourth plea alleges infringement of the principle of objectivity andindependence, on the ground that two representatives of the Member States wereadmitted to the MAST Committee, and that those persons were, moreover,researchers with research institutes which had submitted project proposals underthe MAST III Programme.

32.

    The Commission contends that the applicants' pleas are unfounded, and that theaction should be dismissed.

Findings of the Court

33.

    As a preliminary matter, it is necessary to define the subject-matter of this action. In that respect, the applicants limit themselves to challenging the outcome of thePosible proposal and the special treatment which they claim was accorded to theAOSGE proposal. They do not challenge the assessment procedure as a whole andits effect on the other proposals, particularly in regard to the drawing up of theprincipal list. Nor do they challenge the consensus reports on the Posible proposalor, in particular, the final mark of 99 points attained by that project. In this case,therefore, the applicants challenge the contested decision only in so far as it entailsthe exclusion of the Posible proposal from the reserve list.

34.

    The Court considers that the first point to be examined is whether the applicantshave an interest in bringing an action, since, if they have no such interest, it is notnecessary to examine whether the contested decision is of direct and individualconcern to them within the meaning of Article 173 of the EC Treaty (now Article230 EC).

35.

    The applicants claim to have two types of interest in bringing an action in this case:the interest in the implementation of the Posible proposal - arising from the factthat the Community contribution is essential for its implementation - and theinterest in defending their scientific prestige - arising from the entry of thatproposal on the reserve list, as the list of projects deemed by the Community to beworthy of financial support.

36.

    As regards the applicants' interest in defending their scientific prestige, it shouldbe borne in mind that the selection of projects to be financed is made inaccordance with a two-stage procedure (see paragraphs 6 and 7 above).

37.

    In the first stage, the White Booklet and the Blue Guide state that each proposal isto be examined in two phases by independent experts. In the first phase, which iseliminatory, the experts examine the scientific and technical quality of eachproposal. In the second phase, a wider group of examiners assesses its strategic,economic and political aspects.

38.

    In the second stage, the Commission makes a selection among the proposals anddraws up a draft list of the proposals eligible for financing, which is submitted tothe MAST Committee for its opinion. That selection is made, in particular, on thebasis of the marks awarded by the experts at the first stage. However, thatselection is also made by applying other criteria, such as those concerning thedivision of budgetary funds between the areas of the programme, the balancebetween the various objectives of the RTD programme, and the need to avoidduplication. Those criteria are mentioned on page 10 of the White Booklet, whichwas provided to all persons concerned, including the applicants.

39.

    It follows that the choice of the proposals eligible for financing is not madeexclusively on the basis of criteria relating to their scientific value. Moreover, sincethis is a call for proposals that forms part of a programme approved by aninstitution, which pursues specific Community interests and not the award of anacademic prize, it is normal for the scientific standing of the persons submitting aproposal to be unquestioned inasmuch as the selection of proposals mustnecessarily take account of the extent to which the proposals correspond to theaims of the programme, in addition to their scientific quality.

40.

    In this case, therefore, it must be held that the applicants do not have an interestin bringing an action concerning the defence of their scientific prestige, given that,in the context of the procedure for choosing the projects eligible for financing, theirown scientific ability was not taken into consideration either directly or indirectlywhen their proposal was excluded from the reserve list (see paragraph 13 above). Moreover, in the first phase of the first stage, concerning the examination of thescientific and technical aspects of the proposals, the Posible proposal itself receiveda positive assessment, having scored more marks than necessary in order to moveon to the following phase. To that extent, therefore, the scientific value of thePosible proposal was not in question.

41.

    As regards the applicants' interest in the implementation of the Posible proposal,it should be borne in mind that, in their first plea, they challenge the validity of thecontested decision in so far as it entails the exclusion of the Posible proposal. Theyalso challenge the favourable treatment accorded to the AOSGE proposal, whichwas entered on that list despite having received a lower mark than the Posibleproposal.

42.

    It therefore needs to be determined, as a preliminary issue, to what extent entry ofthe Posible proposal on the reserve list would have allowed it to be financed underthe MAST III Programme and thus implemented.

43.

    It should be emphasised in that regard that, even if the applicants were not awareof it at the time they brought the action, the information provided by theCommission in reply to a question from the Court shows that all the proposals onthe principal list adopted following the second call for proposals were financed, andthat it was not possible to consider the financing of any proposal on the reserve list. Financing of proposals on the reserve list was, in principle, provided for only incases where proposals on the principal list were not implemented and fundsallocated pursuant to the second call for proposals accordingly became available(see paragraph 15 above).

44.

    The argument underlying the applicants' first plea is therefore inoperative in so faras it envisages the implementation of the Posible proposal, since, even if theapplicants' arguments were accepted, and that proposal were entered on thereserve list and placed higher than the AOSGE proposal, the funds allocated to thesecond call were in any event exhausted. To that extent, the applicants have nofurther interest in seeking the annulment of the contested decision in so far as itexcludes the Posible proposal, since the possibility of obtaining financing for thatproposal no longer exists.

45.

    Since, however, the applicants have argued that the exhaustion of the fundsavailable under the second call to finance the reserve list is the result of aninfringement of the rules applicable, it is still necessary to ascertain whether theapplicants have an interest in bringing an action.

46.

    It is true that the implementation of the proposals approved for Communityfinancing in the context of the second call for proposals did not exhaust all thefunds of the MAST III Programme and that, subsequent to that call, theCommission published a third call (see paragraph 3 above). In thosecircumstances, if it were accepted that the Posible proposal should have beenentered on the reserve list, as the applicants argue, they could claim to have aninterest in bringing an action provided sufficient funds remain available after theallocation made pursuant to the first and second calls.

47.

    It therefore needs to be determined whether or not the absence of funds to financethe reserve list of the second call (after the implementation of the proposalsincluded in the principal list) was the result of an infringement of the relevant rulesby the Commission.

48.

    In that respect, in their third plea, the applicants essentially argue that theCommission misdirected the funds available to finance valid proposals submittedin response to the second call and assigned them to projects submitted followingthe third call, which should not have been published.

49.

    In that respect, they claim that there has been an infringement of Article 7 ofDecision 94/804 establishing the MAST III Programme. That article provides thatany adjustment to the distribution of funds between the various areas, set out byway of indication in Annex II to that decision, should be adopted in accordancewith the MAST Committee procedure, established by Article 6 of the decision. They also challenge the validity of the third call for proposals and hence the useof available funds for that call.

50.

    The applicants' arguments on this point cannot be accepted either. It is sufficientto note that the Commission's decisions which lie at the root of the lack of fundsto finance the reserve list of the second call, and in particular the decision openingthe third call (see paragraph 3 above), are well founded in law.

51.

    In the first place, the third call for proposals concerned operational forecasting forthe seas and oceans, an area regarded as a priority in the work programme. Inthat area, there were not yet sufficient proposals which had obtained financingunder the first and second calls. Moreover, the Commission decided to make thethird call for proposals at the request of the MAST Committee, in accordance witha procedure identical to that necessary for adjusting the indicative breakdown offunds.

52.

    Since the third call for proposals therefore fell within the priority objectives of thework programme and its approval was decided upon in accordance with theappropriate procedure, it must be held that the resulting allocation of funds wasmade in compliance with the rules applicable, and that the corresponding lack offunds to finance the reserve list of the second call is not invalid.

53.

    In those circumstances, as regards the applicants' interest in the implementation ofthe Posible proposal, given that there are no more funds available to finance thereserve list of the second call and that that lack of funds is not the result of aninfringement of the rules applicable, it must be concluded that the applicants donot have any further interest in the annulment of the contested decision in so faras it entails the exclusion of that proposal from the reserve list.

54.

    It follows from all the foregoing considerations that, without there being any needfor the Court to rule on the other pleas raised by the parties, there is no furtherneed for it, in the absence of an interest on the part of the applicants in bringingproceedings against the contested decision, to adjudicate on this action.

Costs

55.

    Under Article 87(6) of the Rules of Procedure, where a case does not proceed tojudgment, the costs shall be in the discretion of the Court of First Instance. In thiscase, the Court considers that an order that the parties should bear their own costswould constitute a fair reflection of the circumstances involved.

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber),

hereby rules:

1.    There is no further need to adjudicate on this case.

2.    The parties are ordered to bear their own costs.

Moura RamosTiili Mengozzi

Delivered in open court in Luxembourg on 17 February 2000.

H. Jung

V. Tiili

Registrar

President

1: Language of the case: Italian.