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Judgment of the General Court (Ninth Chamber) of 21 December 2021.#Zoi Apostolopoulou and Anastasia Apostolopoulou-Chrysanthaki v European Commission.#Non-contractual liability – Grant agreements concluded in the context of various EU programmes – Breach of contractual terms by the beneficiary company – Eligible costs – OLAF investigation – Liquidation of the company – Recovery from the partners in the company – Enforcement – Allegations made by the representatives of the Commission before the national courts – Identification of the defendant – Disregard of formal requirements – Partial inadmissibility – Sufficiently serious breach of a rule of law conferring rights on individuals.#Joined Cases T-721/18 and T-81/19.

ECLI:EU:T:2021:933

62018TJ0721

December 21, 2021

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Valentina R., lawyer

21 December 2021 (*1)

(Non-contractual liability – Grant agreements concluded in the context of various EU programmes – Breach of contractual terms by the beneficiary company – Eligible costs – OLAF investigation – Liquidation of the company – Recovery from the partners in the company – Enforcement – Allegations made by the representatives of the Commission before the national courts – Identification of the defendant – Disregard of formal requirements – Partial inadmissibility – Sufficiently serious breach of a rule of law conferring rights on individuals)

In Joined Cases T‑721/18 and T‑81/19,

Zoï Apostolopoulou, residing in Athens (Greece),

Anastasia Apostolopoulou-Chrysanthaki, residing in Athens,

represented by D. Gkouskos, lawyer,

applicants,

European Commission, represented by J. Estrada de Solà and T. Adamopoulos, acting as Agents,

defendant,

APPLICATIONS pursuant to Article 268 TFEU seeking, in essence, compensation for the damage which the applicants allegedly suffered as a result of the allegations made by the representatives of the Commission in the procedure for objecting to enforcement against them of the judgments of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679), and of 4 February 2016, Isotis v Commission (T‑562/13, not published, EU:T:2016:63) against the applicants, before the Protodikeio Athinon (Court of First Instance, Athens, Greece) and the Efeteio Athinon (Court of Appeal, Athens, Greece),

THE GENERAL COURT (Ninth Chamber),

composed of M.J. Costeira, President, M. Kancheva (Rapporteur) and T. Perišin, Judges,

Registrar: I. Pollalis, Administrator,

having regard to the written part of the procedure and further to the hearing on 20 May 2021,

gives the following

Background to the dispute

The first applicant in Cases T‑721/18 and T‑81/19, Ms Zoï Apostolopoulou, is a lawyer registered at the Athens Bar (Greece). The second applicant in those cases, Anastasia Apostolopoulou-Chrysanthaki, who is also the mother of the first applicant, is a former civil servant who has now retired.

The applicants are the only two partners in Koinonia Tis Pliroforias Anoichti Stis Eidikes Anagkes – Isotis (‘Isotis’), a civil non-profit company under Article 741 of the Greek Civil Code, which was incorporated on 7 January 2004.

3.3

Civil companies, referred to in Articles 741 to 743 of the Greek Civil Code, are primarily conceived as a form of partnership without legal personality. Such civil companies may, however, acquire a legal personality, in accordance with Article 784 of the Greek Civil Code, when they pursue an economic activity, which may not be profit-making, and when they have met the publicity requirements laid down for general partnerships, namely that they have drawn up and published articles of association. Undertakings are economic entities when the fulfilment of their purpose has the necessary or potential consequence of giving rise to contractual liability or liability in tort, or may involve the provision of services which, as is common practice in transactions, are generally remunerated. If the conditions laid down in Article 784 of the Greek Civil Code are not met, and therefore in the absence of legal personality, each partner in the civil company is liable for the obligations which have arisen vis-à-vis third parties as a result of the management or representation of the company in proportion to their share of the company, in accordance with Article 759 of the Greek Civil Code.

4.4

However, at the time of Isotis’ incorporation, since the conditions laid down in Article 784 of the Greek Civil Code were met and the civil company therefore had a legal personality, its creditors could seek payment of their claim from the partners only after the winding-up and liquidation of the company, and on condition that the company’s assets were not sufficient to satisfy them.

5.5

11 April 2012 was the date of entry into force of Nómos 4072/2012 – Veltíosi epicheirimatikoú perivállontos (Law 4072/2012 on the improvement of the business environment) (FEK A’ 86/11.4.2012), Article 249(1) and Article 270(1) of which provide that partners in a civil company with legal personality have parallel, unlimited and joint and several liability in respect of the company’s debts.

6.6

Under Article 2 of its articles of association, published in the commercial register of the Protodikeio Athinon (Court of First Instance, Athens, Greece), Isotis’ purpose is to promote the equal treatment and integration of individuals with specific needs into the information society by means of providing information and disseminating recognised and relevant international rules and guidelines on accessibility, and providing advice and assistance when the relevant legislation is drafted and applied.

According to Article 5 of Isotis’ articles of association, the first applicant acts alone in managing all the company’s affairs, represents the company before all authorities and binds it by means of her signature under the name and stamp of the company.

Under Article 8 of those articles of association, Isotis, as a non-profit legal person, is solely liable, including with its assets, for the obligations entered into and for its debts. The partners are not liable for the company’s debts or other obligations vis-à-vis third parties beyond the contribution which they have made and which forms part of the company’s assets.

Isotis had concluded several contracts with the European Community, represented by the Commission of the European Communities, for the implementation of certain projects. Those contracts had been concluded between, on the one hand, the Community, represented by the Commission, and, on the other, a coordinator and the members of a consortium, which included Isotis.

10.10

Nine of those contracts were the subject of a financial audit carried out by the Commission from 8 to 12 February 2010. In the final audit report, adopted by the Commission and sent to Isotis on 22 December 2010, it was stated that:

for several successive years, Isotis had failed to record, in particular, its precise receipts in its accounts and its records, contrary to the relevant provisions of Greek law; its accounting records were not therefore reliable, and a direct comparison could not be made between the costs and the receipts relating to the implementation of the programmes and its overall statement of accounts;

a significant percentage of personnel time sheets systematically included handwritten corrections which had been made a posteriori by the programme director without the consent of the member of personnel; this had significant consequences for the declared working hours and raised doubts over the recording of working hours;

the programme director’s time sheets showed an overstated number of hours worked, which overlapped with hours spent on other professional activities;

Isotis had falsely declared that the programme director had not participated in the performance of another financing contract concluded with the Commission (ETSI STF 333);

the justification of travel costs did not give a reliable, objective picture of the conditions and the activities carried out in connection with that travel in so far as the majority of trips were not directly connected with the programmes in question.

11.11

The final audit report concluded that all the costs incurred by Isotis in the course of the performance of the contracts covered by the audit of February 2010 should be considered non-eligible, and that all relevant amounts paid to Isotis were to be recovered.

12.12

The audit report also recommended, in view of the seriousness of the infringements found, that all current contracts concluded by Isotis with the Commission should be terminated.

13.13

In its letter of 22 December 2010, the Commission indicated the sum to be reimbursed for each of the contracts covered by the audit of February 2010, stating that the adjustments necessitated by the payment of non-eligible sums to Isotis could affect future payments in respect of those contracts or take the form of a recovery order. The Commission also informed Isotis that, in addition to making these adjustments, its departments would be able to calculate the amount of liquidated damages due to the European Union under Article II.30 of the general conditions for the contracts covered by the audit of February 2010 and, if necessary, issue a recovery order in respect of those damages.

14.14

Under an agreement concluded on 28 December 2010 and published in the companies bulletin of the Protodikeio Athinon (Court of First Instance, Athens) on 17 January 2011, Isotis was put into liquidation. At that time, A, who is also the spouse of the first applicant and who up to that date was in charge of European programmes for Isotis, was appointed as the representative for the liquidation of Isotis.

15.15

On 31 January 2011, Isotis brought an action on the basis of Article 272 TFEU, registered at the Registry of the General Court as Case T‑59/11, seeking a declaration from the General Court that it was not required to reimburse the expenses incurred in connection with the contracts covered by the audit of February 2010, since those expenses were eligible costs, and that the Commission was required to pay it the final instalment of the grant provided for in some of those contracts, plus default interest.

16.16

On 29 April 2011, the Commission issued nine debit notes indicating the amount to be reimbursed in respect of each of the contracts covered by the audit of February 2010, and setting a time limit of 45 days for Isotis to reimburse the sums due, which would expire on 14 June 2011 and at the end of which those sums would bear default interest as provided for in those contracts at the European Central Bank (ECB) rate plus 3.5 percentage points.

17.17

On 20 June 2011, the Commission issued six debit notes in respect of the contracts covered by the audit of February 2010, fixing the total amount owed by Isotis by way of liquidated damages under Article II.30 of the general conditions for those contracts at EUR 70 471.47.

Moreover, at the Commission’s request, the European Anti-Fraud Office (OLAF) carried out an investigation into potential fraud affecting the European Union’s financial interests by Isotis, the first applicant and A. Following that investigation, in a report of 15 November 2011, OLAF recommended the adoption of appropriate measures and the provision of information to the Greek judicial authorities on account of suspicions concerning the existence of fraud affecting the financial interests of the European Union. The Commission forwarded OLAF’s final investigation report to the Eisangelia Plimmeleiodikon Athinon (Office of the Public Prosecutor at the Criminal Court, Athens, Greece).

By judgment of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679), the General Court dismissed Isotis’ claims and upheld the Commission’s counterclaim, ordering Isotis to reimburse to the Commission the sum of EUR 999 213.45 plus default interest at the ECB rate increased by 3.5 points, calculated as from 15 June 2011, corresponding to the reimbursement of financial contributions which it received under the contracts covered by the audit of February 2010, and the sum of EUR 70 471.47 plus interest at the ECB rate increased by 3.5 points, calculated as from 5 August 2011, corresponding to the liquidated damages due in respect of six of those contracts.

On 25 September 2014, Isotis brought an appeal against the judgment of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679), registered at the Registry of the Court of Justice as Case C‑450/14 P. The Court of Justice dismissed that appeal by order of 31 May 2016, Isotis v Commission (C‑450/14 P, not published, EU:C:2016:477).

Alongside the contracts covered by the audit of February 2010, the Community had also concluded contract No 238940 ‘REsponding to All Citizens needing Help (REACH112)’ with Intelligence for Environment and Security – IES Solutions Srl and 21 other contracting parties established in various EU Member States, including Isotis. The purpose of that contract was the implementation of the REACH112 project, which was part of the implementation of the ICT Policy Support Programme under the CIP Framework Programme. The aim of that project was to offer accessible alternatives to traditional voice telephony.

22.22

On 13 September 2013, the Commission issued debit note No 3241310346 for recovery of an amount of EUR 47 197.93 on account of the termination of Isotis’ participation in the REACH112 project with effect from 1 July 2010. It was stated in the debit note that that amount corresponded to the pre-financing received by Isotis from the coordinator of that project and that the costs accepted by the Commission following the audit of February 2010 amounted to EUR 0.

On 24 October 2013, Isotis brought a new action before the General Court on the basis of Article 272 TFEU, seeking a declaration from the General Court that it was not required to reimburse to the Commission the abovementioned sum of EUR 47 197.93 and that, in any event, the Commission’s claim for reimbursement as regards the expenses declared for the first reference period of the REACH112 project, in the amount of EUR 13 821.12, was unfounded. In its defence, the Commission asked the General Court, by way of counterclaim, to order the applicant to pay it EUR 47 197.93, plus default interest.

By judgment of 4 February 2016, Isotis v Commission (T‑562/13, not published, EU:T:2016:63), the General Court upheld Isotis’ action as regards the costs which it had declared for the first reference period of the REACH112 project and dismissed it as to the remainder. Consequently, the General Court dismissed the Commission’s counterclaim as regards the costs declared by Isotis for the first reference period of the REACH112 project and ordered Isotis to pay the Commission EUR 33 376.81, plus default interest at the rate of 4% per annum as of 29 October 2013 and until full payment of that amount.

On 23 May 2016, taking the view that there was no evidence that the first applicant or A were guilty of fraud affecting the European Union’s financial interests, the Public Prosecutor at the Athens Criminal Court decided to close the investigation into them and take no further action. It was stated in that report that there was nothing in the file to support the conclusion that the first applicant was substantially involved in any activity carried out by her husband in connection with the financing of the contracts at issue, which was expressly confirmed by OLAF report.

On 7 September 2017, the Commission notified the applicants of enforcement orders No 692/2016 and No 693/2016, issued by the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens, Greece) on the basis, respectively, of the order of 31 May 2016, Isotis v Commission (C‑450/14 P, not published, EU:C:2016:477), and the judgment of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679), as well as a demand of 20 July 2017 for payment of the total sum of EUR 1 090 055.42 by 22 February 2017, plus interest for each day of delay until full repayment of that sum.

On the same day, the Commission also notified the applicants of enforcement order No 553/2016, issued by the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) on the basis of the judgment of 4 February 2016, Isotis v Commission (T‑562/13, not published, EU:T:2016:63), and a demand of 20 July 2017 for payment of the sum of EUR 33 376.81, plus default interest at the rate of 4% per annum as of 29 October 2013 until full payment of that sum.

On 11 September 2017, the applicants lodged an objection to enforcement and applied for suspension of enforcement before the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens).

On 1 November 2017, the applicants lodged another application with the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) for suspension of enforcement, and for the protection of their character, until the delivery of a final decision on the objection.

On 12 December 2017, the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) heard, in open court, the representatives of the Commission and the applicants concerning the application for suspension of enforcement and the application for the protection of their character lodged by the latter. At that hearing, an OLAF official gave evidence in support of the Commission.

On 14 December 2017, the Commission lodged two ‘notes for deliberation’ with the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) concerning, respectively, the application for suspension of enforcement and the application for interim measures.

The application for suspension of enforcement and the application for the protection of the applicants’ character were dismissed by decisions of the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) on 11 January 2018 and 18 January 2018 respectively.

On 17 April 2018, the representatives of the Commission lodged their written submissions concerning the objection to enforcement which the applicants had submitted to the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) on 11 September 2017.

On 20 April 2018, the representatives of the Commission lodged a supplementary statement with the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens).

On 4 July 2018, the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) partially upheld the applicants’ objection to the Commission’s application for enforcement and annulled the demand for payment of 20 July 2017 at the bottom of the copies of enforcement orders No 692/2016 and 693/2016, issued following the order of 31 May 2016, Isotis v Commission (C‑450/14 P, not published, EU:C:2016:477) and the judgment of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679). The objection was dismissed as to the remainder.

On 12 September 2018, the applicants brought an appeal against the decision of the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) before the Efeteio Athinon (Court of Appeal, Athens, Greece).

On 20 September 2018, pursuant to the provisions of the relevant Greek Code of Civil Procedure, the Commission applied for two attachment orders in respect of the funds held by the applicants at five Greek banking institutions in the amount of EUR 1 222 233.91. Those banking institutions stated that the applicants did not hold a bank account or that the existing accounts either did not contain deposits or, as was the case with one of the accounts, contained a deposit that could not be subject to attachment. Following an investigation, the Commission also found that the applicants did not own any property in their own name.

Facts subsequent to the initiation of the action in Case T‑721/18

On 12 December 2018, the representatives of the Commission lodged with the Efeteio Athinon (Court of Appeal, Athens) their submissions on the applicants’ appeal against the judgment of the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) of 4 July 2018.

On 18 December 2018, the representatives of the Commission lodged a supplementary statement with the Efeteio Athinon (Court of Appeal, Athens).

By judgment of 31 July 2019, the Efeteio Athinon (Court of Appeal, Athens) set aside the judgment of the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) of 4 July 2018 and upheld the applicants’ objection to the Commission’s application for enforcement. In essence, the decision of the Efeteio Athinon (Court of Appeal, Athens) was based on the fact that it was not permissible, under the applicable Greek law, to proceed to enforcement of the order of 31 May 2016, Isotis v Commission (C‑450/14 P, not published, EU:C:2016:477), and of the judgments of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679) and of 4 February 2016, Isotis v Commission (T‑562/13, not published, EU:T:2016:63), against the applicants because such enforcement could be sought only against Isotis as a legal person, even though the applicants were the only two partners in Isotis and that company was in liquidation when the application for enforcement was lodged. By that same judgment, the Efeteio Athinon (Court of Appeal, Athens) annulled the demand for payment of 20 July 2017 on the enforcement order issued following the order of 31 May 2016, Isotis v Commission (C‑450/14 P, not published, EU:C:2016:477) and the judgment of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679), and the demand for payment, dated the same day, on the enforcement order issued following the judgment of 4 February 2016, Isotis v Commission (T‑562/13, not published, EU:T:2016:63).

On 6 August 2019, the Commission notified the banks concerned of the lifting of the attachment orders of 20 September 2018.

Procedure and forms of order sought

By application lodged at the Registry of the General Court on 7 December 2018, the applicants brought an action seeking, inter alia, compensation for the damage which they allegedly suffered as a result of their reputation and dignity being adversely affected by the representatives of the Commission and an OLAF official in the procedure for objecting to the enforcement of the order of 31 May 2016, Isotis v Commission (C‑450/14 P, not published, EU:C:2016:477), and of the judgments of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679) and of 4 February 2016, Isotis v Commission (T‑562/13, EU:T:2016:63), before the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens). That action was registered as Case T‑721/18.

By application lodged at the Registry of the General Court on 12 February 2019, the applicants brought an action seeking, inter alia, compensation for the damage which they allegedly suffered as a result of their reputation and dignity being adversely affected by the representatives of the Commission in the appeal proceedings before the Efeteio Athinon (Court of Appeal, Athens) against the judgment of the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) of 4 July 2018, which had partially upheld their objection to the enforcement of the order of 31 May 2016, Isotis v Commission (C‑450/14 P, not published, EU:C:2016:477), and of the judgments of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679).

(Case T‑59/11, EU:T:2014:679) and of 4 February 2016, Isotis v Commission (T‑562/13, EU:T:2016:63). That action was registered as Case T‑81/19. In their application, the applicants requested that that case be joined with Case T‑721/18 on the basis of Article 68 of the Rules of Procedure of the General Court.

On 1 August 2019, by way of a measure of organisation of procedure adopted on the basis of Article 89(3)(b) of the Rules of Procedure, the General Court invited the parties to submit their observations on the situation of lis pendens which could arise from the bringing of the action in Case T‑81/19 in view of the action already brought in Case T‑721/18. The Commission and the applicants complied with the measure of organisation of procedure on 30 August 2019 and 3 September 2019, respectively.

Following a change in the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the Ninth Chamber, to which the present cases were accordingly allocated.

In Case T‑721/18, none of the parties submitted a request for a hearing within three weeks of the notification of the close of the written part of the procedure. In Case T‑81/19, the applicants requested, on 20 February 2020, that a hearing be held in accordance with Article 106 of the Rules of Procedure.

On 11 May 2020, by way of measures of organisation of procedure, the Court put questions to the applicants in Case T‑721/18 and to both the applicants and the Commission in Case T‑81/19. The Commission and the applicants replied to the Court’s questions on 8 June 2020 and 15 June 2020 respectively.

By decision of the President of the Ninth Chamber of the General Court of 26 June 2020, Cases T‑721/18 and T‑81/19 were joined for the purposes of the written and oral parts of the procedure and of the decision closing the proceedings, in accordance with Article 68 of the Rules of Procedure.

On a proposal from the Judge-Rapporteur, the General Court (Ninth Chamber) decided to open the oral part of the procedure in Joined Cases T‑721/18 and T‑81/19. On 28 September 2020, on the basis of Article 107(2) of the Rules of Procedure, the applicants requested, on account of the health situation caused by the COVID-19 crisis, the adjournment of the hearing initially scheduled for 9 October 2020, to which they had been duly invited. On 18 November 2020, the applicants requested, for the same reasons, the adjournment of the hearing scheduled for 4 December 2020. Again, for the same reasons, on 28 January 2021, the applicants requested a further adjournment of the hearing, which had been scheduled for 4 February 2021. The applicants also stated that they did not wish to make use of the possibility of attending the hearing by video conference. On 4 February 2021, the Registry of the General Court informed the parties that the hearing would be held on 20 May 2021.

By letters of 29 April 2021, the applicants requested, first, that the Judge-Rapporteur not take part in the disposal of the present cases, on the basis of Article 18 of the Statute of the Court of Justice of the European Union and Article 16 of the Rules of Procedure and, second, a further adjournment of the hearing pending the designation of a new Judge-Rapporteur.

By decision of 12 May 2021, after hearing the Judge-Rapporteur, the President of the General Court decided to dismiss the applicants’ request for her not to take part in the disposal of the present cases.

The parties presented oral argument and answered the questions put to them by the General Court at the hearing on 20 May 2021.

In Case T‑721/18, the applicants claim that the Court should:

–order the Commission to pay, jointly and severally with the European Union, the sum of EUR 500000 to each of the applicants for each of the following heads of damage:

–EUR 100000 for the attack on the character of each applicant in the Commission’s ‘note’ lodged on 14 December 2017 with the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens), following the hearing, on 12 December 2017, of the applicants’ application of 11 September 2017 for suspension of the enforcement proceedings against them,

–EUR 100000 for the attack on the character of each applicant in the Commission’s ‘note’ lodged on 14 December 2017 with the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens), following the hearing, on 12 December 2017, of the applicants’ application of 1 November 2017 for suspension of enforcement and for the protection of their character,

–EUR 100000 for the attack on the character of each applicant, at the hearing on 12 December 2017, in the evidence of the witness, which was given and examined at the hearing before the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens), in the interim proceedings relating to the applicants’ application of 11 September for suspension of enforcement, and to their application of 1 November 2017 for suspension of enforcement and for the protection of their character,

–EUR 100000 for the attack on the character of each applicant in the submissions of 17 April 2018 lodged by the Commission with the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens), during the hearing in connection with the objection of 11 September 2017 lodged by the applicants before the abovementioned court,

–EUR 100000 for the attack on the character of each applicant in the supplementary statement of 20 April 2018, lodged by Commission with the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens), following the hearing in connection with the objection of 11 September 2017 lodged by the applicants before that court;

–order the Commission and the European Union to refrain in future from any attack on the applicants’ character;

–order the Commission to restore their honour and reputation by means of a declaration before the Efeteio Athinon (Court of Appeal, Athens), before which the procedure for objecting to enforcement is pending;

–order the Commission and the European Union to pay the costs.

The Commission contends that the Court should:

–dismiss the action as inadmissible;

–in the alternative, dismiss the action as unfounded;

–order the applicants to pay the costs.

In Case T‑81/19, the applicants claim that the Court should:

–order the European Commission and the European Union, jointly and severally, to pay EUR 1100000 to each of them by way of compensation for the non-material damage which they suffered because of the attack on their character based on the false allegations made by the Commission in its submissions and supplementary statement – defence which it lodged with the Efeteio Athinon (Court of Appeal, Athens), namely inter alia:

–EUR 50000 for stating that ‘the only means of recovering European funds is to implement an enforcement measure in respect of the assets of the defendants (who were also the natural persons behind [Isotis] – the partners therein)’, in so far as that statement clearly and directly implies that the applicants managed the European programmes alone, that the way in which they were operating lacked transparency, that they appropriated the European funds and that Isotis was – according to those insinuations – a fictitious legal person,

–EUR 50000 for stating that ‘the defendants are seeking, totally illegally and unfairly, to evade any responsibility and to distance themselves from a business that they have been monitoring and directly managing themselves for ten years through the intermediary of a close family member’,

–EUR 50000 for stating that ‘it has also been proved in law that the latter had allegedly suffered significant damage which was the direct consequence of the acts and omissions committed over many years by the senior executives of the civil company (the opposing party)’,

–EUR 50000 for stating that the debt ‘was not incurred by a legal entity unrelated to them, but by their civil non-profit company, behind which the defendants were operating exclusively from the outset, together with a close family member’, in so far as that statement clearly and directly implies that the applicants managed the European programmes alone, that the way in which they were operating lacked transparency, that they appropriated the European funds and that Isotis was – according to those insinuations – a fictitious legal person,

–EUR 50000 for stating that ‘the defendants remained the only partners in the civil company and were, from the beginning to the end, aware of the management, which was under their control, of the European public funds received by their company’,

–EUR 50000 for stating that ‘that being so, [they] have now realised that they can no longer escape their responsibilities indefinitely and hide behind what they see as the “autonomy” of their civil company as a legal person’, in so far as that statement clearly and directly implies that the applicants managed the European programmes alone, that the way in which they were operating lacked transparency, that they appropriated the European funds and that Isotis was – according to those insinuations – a fictitious legal person,

–EUR 50000 for stating that ‘by means of that claim, the defendants are seeking once again to escape liability, by hiding behind the alleged “legal personality” of their civil non-profit company’, in so far as that statement clearly and directly implies that the applicants managed the European programmes alone, that the way in which they were operating lacked transparency, that they appropriated the European funds and that Isotis was – according to those insinuations – a fictitious legal person,

–EUR 50000 for stating that ‘we categorically state, rejecting the opposing parties’ arguments in this regard, that the European Commission has never recognised “Koinonia Tis Pliroforias Anoichti Stis Eidikes Anagkes – Isotis” as an autonomous legal person’,

–EUR 50000 for stating that ‘it was, in other words, a civil company which had a charitable purpose and aimed to extend social and humanitarian solidarity towards persons with specific needs, in respect of whom it undertook to promote equal treatment in the field of the information society[;] it did not pursue an economic aim[; its] articles of association themselves expressly provide that “[i]n any event, the company acts as a non-profit legal person” (last paragraph of Article 2)’,

–EUR 50000 for stating that ‘a company with such an object does not have legal personality, since the services provided by a civil non-profit company which are of an “ideological”, “moral” nature … cannot be regarded as being of an economic nature[; m]oreover, it is on account of that object that the company was funded by the Commission[; c]onsequently, under Article 759 of the Greek Civil Code, the obligations of the civil company vis-à-vis the European Commission are incumbent on the two defendants who are the partners in that company’,

–EUR 50000 for stating that ‘specifically, [the first applicant] was one of two partners in the civil company Isotis, as well as being the sole director, legal representative and treasurer, while [the second applicant] was the other partner in the civil company’,

–EUR 50000 for stating that ‘it was a civil company and a personal company, whose registered office was the defendants’ domicile’,

–EUR 50000 for stating that ‘the defendants (even with the contribution of other persons, such as the husband of the first [applicant], [A]), by definition, were the only persons competent to make all the decisions for their company, to manage all the company’s affairs, to negotiate and conclude contracts with third parties[; o]nly those two partners … could make independent decisions[; t]he existence of their company was purely formal’,

–EUR 50000 for stating that ‘all of the foregoing reasonably leads to the conclusion that the liquidation over a long period of the civil non-profit company [Isotis] is being carried out improperly, with the clear aim of evading legal consequences concerning the liability of the company and its partners to the company’s creditors’,

–EUR 50000 for stating that ‘[Isotis] is a small civil non-profit company which does not pursue an economic aim and has no staff’,

–EUR 50000 for stating that Isotis is a company ‘which has not carried out transactions with numerous third parties’,

–EUR 50000 for stating that Isotis is a company ‘which had no obligation to comply with accounting standards and keep detailed business accounts’,

–EUR 50000 for stating that ‘there is no complexity in the operation and organisation of the civil company in question which would, if present, lead to delays in liquidation that are usually encountered in large commercial companies with daily and varied activities[; o]nly then would the lengthy liquidation proceedings which followed the winding-up of the company in question be justified’,

–EUR 50000 for stating that ‘moreover, Isotis had a specific charitable purpose’,

–EUR 50000 for stating that ‘its work had been fully completed by the time it was wound up’,

–EUR 50000 for stating that the applicants ‘are, of course, liable, since, as the only partners in a civil non-profit company without legal personality, they are, ex lege, substantially involved in the management and operation of their civil company’, and that they ‘are, of course, liable, since, as the only partners in a civil non-profit company without legal personality, they are, by law, substantially involved in the management and operation of their civil company’,

–EUR 50000 for stating that ‘since the applicants are partners in the civil non-profit company [Isotis], it is presumed that they, and not any third party, are also in charge of managing the company’;

–order the Commission and the European Union to refrain in future from any attack on their character;

–order the Commission to restore their honour and reputation by means of a declaration;

–order the Commission to pay the costs.

The Commission contends that the Court should:

–dismiss the action as inadmissible and, in any event, unfounded;

–order the applicants to pay the costs.

In Case T‑81/19, the applicants claim that the Court should:

–EUR 50000 for stating that ‘it was a civil company and a personal company, whose registered office was the defendants’ domicile’,

It must also be observed that the application contains numerous references to the procedure brought by the applicants for objecting to the enforcement of the abovementioned decisions initiated by the Commission before the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) and before the Efeteio Athinon (Court of Appeal, Athens). However, contrary to the Commission’s submissions it is sufficiently clear from the application that the present action does not seek to call into question the force of <span class="coj-italic">res judicata</span> of the Court of Justice’s order of 31 May 2016, Isotis v Commission (C‑450/14 P, not published, EU:C:2016:477), or the General Court’s judgments of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679) and of 4 February 2016, Isotis v Commission (T‑562/13, not published, EU:T:2016:63), or to challenge the decisions taken by the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) in the procedure for the enforcement of those decisions.

It is thus apparent from the application that that action seeks compensation for the non-material damage allegedly caused to each of the applicants by the action of the lawyers representing the Commission in the appeal proceedings against the judgment of the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) of 4 July 2018, concerning the possibility for the Commission to enforce against the applicants the order of 31 May 2016, Isotis v Commission (C‑450/14 P, not published, EU:C:2016:477), and the judgments of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679) and of 4 February 2016, Isotis v Commission (T‑562/13, not published, EU:T:2016:63).

As regards the facts alleged against the Commission concerning the proceedings before the Efeteio Athinon (Court of Appeal, Athens), it must be observed that those facts are set out in sufficient detail in paragraphs 34 to 62 of the application, in which the applicants criticise the Commission’s lawyers not only for having repeated in their written pleadings lodged with the Efeteio Athinon (Court of Appeal, Athens) the false allegations made in the written pleadings lodged with the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens), which are the subject of the action in Case T‑721/18, but also for having deliberately made a large number of new false allegations with a view to misleading the Efeteio Athinon (Court of Appeal, Athens) on a number of facts so that it would be possible for the applicants to be held personally liable for Isotis’ debts to the Commission.

Similarly, the applicants set out with sufficient precision, in paragraphs 63 to 92 of the application, the reasons why they consider that the acts allegedly committed by the Commission’s lawyers constitute unlawful conduct. It is thus apparent from the application that the applicants submit that the conduct alleged against the Commission is unlawful in that it infringed, first, the requirement of truth and equity in proceedings, breached the fundamental general principle of the fair administration of justice and the right to a fair trial, second, breached the right to human dignity and the principle of good administration and, third, breached the principles of legality, good faith and protection of legitimate expectations.

Moreover, it must be observed that the application is sufficiently clear as to how the applicants calculated the amount of non-material damage for which they seek compensation. Irrespective of the question whether the applicants’ claim for compensation is well-founded and whether the General Court should assess it <span class="coj-italic">ex aequo et bono</span>, it must be observed that the first head of claim in the application sufficiently specifies how the applicants calculated the amount of EUR 1100000 of damage for each of them.

In the light of the foregoing considerations, it must be held that the content of the applications initiating proceedings did not make it impossible, or even excessively difficult, for the Commission to exercise its rights of defence and, consequently, satisfies the requirement of clarity imposed by Article 76(d) of the Rules of Procedure, for the purposes of the case-law cited in paragraph 62 above.

The plea of inadmissibility raised by the Commission, alleging that the applications are imprecise as regards the subject matter of the dispute and the arguments put forward by the applicants in the present cases, must therefore be dismissed.

– The identity of defendants

The Commission contends that the actions are inadmissible in that it is not clear from the applications who the defendants in those actions are.

The applicants dispute the Commission’s arguments. In their reply to the measures of organisation of procedure of 11 May 2020, they state that the actions in Cases T‑721/18 and T‑81/19 are brought against the Commission as an institution with its own legal personality and against the Commission in so far as it legally represents the European Union. The applicants also state in the reply that the sentence used in the applications, according to which the actions are directed against ‘the European Union, legally represented’, must be regarded as meaning that the actions are brought not only against the Commission as an institution, but also against the European Union legally represented by the Commission.

It must be observed that, in accordance with Article 76(c) of the Rules of Procedure, the application must state the name of the main party against whom the action is brought.

In the present case, it is apparent from the applications in Cases T‑721/18 and T‑81/19 and from the applicants’ replies to the measures of organisation of procedure of 11 May 2020 that the present actions are both based on Article 268 TFEU and the second paragraph of Article 340 TFEU and directed, first, against the European Union ‘legally represented’ by the Commission and, second, against the Commission ‘as a separate legal person’.

As stated in paragraphs 63 and 68 above, it is also apparent from the applications in the present cases that, by their actions, the applicants seek compensation for damage which they claim to have suffered as a result of the alleged conduct of the Commission’s legal representatives and of an OLAF official.

In that regard, it must be observed that, under the second paragraph of Article 340 TFEU, ‘in 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’.

It should also be borne in mind that Article 47 TEU confers legal personality on the European Union and not on the Commission.

Thus, in accordance with the case-law of the Court of Justice and the General Court, an applicant in an action for damages based on Article 268 TFEU and the second paragraph of Article 340 TFEU is justified in bringing his action against the European Union, which has legal personality (see order of 2 February 2015, Gascogne Sack Deutschlandand Gascogne v European Union, T‑577/14, not published, EU:T:2015:80, paragraph 16 and the case-law cited).

However, it is also apparent from the settled case-law, both of the Court of Justice and of the General Court, that, where the liability of the European Union is incurred by the act of one of its institutions, it is represented before the General Court by the institution or institutions accused of the act giving rise to liability (see order of 2 February 2015, Gascogne Sack Deutschlandand Gascogne v European Union, T‑577/14, not published, EU:T:2015:80, paragraph 23 and the case-law cited).

It follows that the present actions are inadmissible in so far as they are directed against the Commission ‘as a separate legal personality’.

– The scope of the second and third heads of claim

The Commission contends that the second head of claim in each of the applications in Cases T‑721/18 and T‑81/19 is inadmissible on the ground that it manifestly goes beyond the subject matter of the dispute in those two cases. The third head of claim in each of the applications in Cases T‑721/18 and T‑81/19 is also inadmissible because it is imprecise, since the applicants have not indicated the type of declaration the Commission could make or the procedure for making it.

The applicants dispute the Commission’s arguments.

First, as regards the second head of claim in each of the applications in Cases T‑721/18 and T‑81/19, by which the applicants ask the Court, in essence, to order the Commission to refrain in future from any attack on their character, it must be observed that that head of claim must be regarded as an application for a prohibitory injunction.

In that regard, it is clear that Article 268 TFEU and the second paragraph of Article 340 TFEU, relating to the non-contractual liability of the European Union, that compensation in kind may, where appropriate, be granted by the EU judicature, in accordance with the general principles of non-contractual liability common to the laws of the Member States, and that such compensation may take the form of a mandatory injunction or a prohibitory injunction, which may lead the Commission to engage in a particular course of conduct (see, to that effect, orders of 3 September 2013, Idromacchine and Others v Commission, C‑34/12 P, not published, EU:C:2013:552, paragraph 29 and of 20 December 2019, Dragomir v Commission, T‑297/19, not published, EU:T:2019:902, paragraph 66).

In that regard, it must be observed that, although, in accordance with the case-law cited in paragraph 87 above, it cannot be ruled out that compensation in kind may take the form of a mandatory injunction imposed on the Commission by the EU judicature, the application for an injunction must still meet the requirements of clarity and precision laid down in Article 76(d) of the Rules of Procedure.

However, in the present case, it is clear that the applicants failed to specify in their applications either the form the declaration to restore their reputation should take or how it was to be made. It should also be noted that the explanations provided by the applicants in their replies to the measures of organisation of procedure of 11 May 2020 as to the exact scope of their third heads of claim are not sufficient in that regard. It is true that the applicants specified the form that declaration should take, stating that it was to be an extra-judicial declaration addressed to each of them, by which the Commission had to declare clearly and unconditionally that neither of the applicants had been involved in funding granted by the European Union and that they had not participated in the actual management of the projects funded, as was acknowledged by the OLAF. However, the applicants also stated that that declaration was to be sent not only to them, but also to each authority, bank and natural person which had, directly or indirectly, become aware of the false and defamatory allegations made by the Commission and its representatives, as described in the present actions. It is clear that such an application is, in itself, too imprecise to be regarded as meeting the requirements of precision and clarity laid down in Article 76(d) of the Rules of Procedure.

It follows that the third head of claim in each of the applications in Cases T‑721/18 and T‑81/19 must be dismissed as inadmissible.

– Lis pendens

The Commission contends that the claims made by the applicants in Case T‑81/19 are identical to those made in Case T‑721/18 and that, in so far as those claims relate to the procedure for objecting to enforcement and to the arguments put forward by the Commission in that procedure before the action in Case T‑721/18 was brought, the bringing of a second action was not justified.

Having been asked by the Court to take a view on the possibility of lis pendens with regard to Case T‑721/18, the Commission states in its reply to the measure of organisation of procedure of 1 August 2019 that the conditions for a finding of lis pendens have been met. The Commission notes, in that regard that, in both cases, the applicants seek compensation for the same damage, namely the alleged harm to their character, which occurred as a result of the same harmful event consisting of the allegations made by the Commission in its pleadings at first instance and at second instance before the Greek courts in the same dispute. The Commission states that, in paragraphs 15 to 33 of the application in Case T‑81/19, the applicants set out arguments relating to the allegations made by the Commission in the proceedings for interim measures and the proceedings at first instance, which they had already challenged in the action in Case T‑721/18. The Commission also states that it confined itself to repeating, at the appeal stage, the allegations already made in the proceedings for interim measures and the proceedings at first instance because it is not permissible to introduce new allegations at the appeal stage. The repetition of those allegations does not constitute a separate practice capable of causing the applicants harm distinct from that allegedly caused when the same allegations were made at first instance. The same applies to the alleged unlawfulness of its conduct, since the applicants in Case T‑81/19 allege infringement of the principles of legality, good faith, the protection of legitimate expectations, human dignity and good administration, which they had already alleged in the application in Case T‑721/18. Lastly, the Commission notes that the forms of order sought are also identical, since the applicants claim, in both cases, that the Commission should pay them compensation for non-material damage and be ordered to refrain in future from any attack on their character, and to restore their honour and reputation by means of a declaration. Moreover, the sum of the individual fixed sums claimed by the applicants in the two cases amounts, approximately, to the same amount as their debt. Consequently, the Commission considers that the action in Case T‑81/19 must be dismissed as inadmissible on the ground of lis pendens with regard to the action brought in Case T‑721/18.

The applicants submit that the two actions do not relate to the same facts. They submit that, while the action in Case T‑721/18 seeks compensation for the non-material damage caused to them by the ‘false and defamatory’ allegations made by the Commission in the proceedings for interim measures and the proceedings at first instance, the action in Case T‑81/19, on the other hand, seeks compensation for the non-material damage caused to them by the repetition of those allegations and by the addition of new ‘false and defamatory’ allegations in the pleadings which, on 13 and 18 December 2018, the Commission’s lawyers lodged with the Efeteio Athinon (Court of Appeal, Athens), before which the applicants had brought an appeal against the judgment of the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) of 4 July 2018.

The applicants also submit that the two actions were not brought on the same legal basis. The applicants observe, in that regard, that in the application in Case T‑721/18, they submit that the conduct alleged against the Commission is unlawful, in particular, in that it infringes their right to an effective remedy and to a fair trial and constitutes an abuse of rights, whereas those pleas of unlawfulness were not raised in the application in Case T‑81/19. Similarly, the applicants observe that the application in Case T‑81/19 contains a plea of unlawfulness, namely a plea alleging infringement of the requirement of truth and equity in proceedings, which is not raised in the application in Case T‑721/18. Furthermore, the applicants state that the pleas of unlawfulness which are common to both actions do not support the same heads of claim. The applicants further submit that the Commission’s argument that the compensation for the non-material damage alleged in Case T‑721/18 could not be sought again in Case T‑81/19 relates not to situations of lis pendens, but to situations in which an applicant seeks to call into question the force of res judicata, which is not the case here.

In that regard, it must be recalled that, in accordance with settled case-law, an action which is between the same parties, has the same purpose and is brought on the basis of the same pleas in law as an action brought previously, must be dismissed as inadmissible (order of 14 June 2007, Landtag Schleswig-Holstein v Commission, T‑68/07, not published, EU:T:2007:180, paragraph 16; see also, to that effect, judgments of 19 September 1985, Hoogovens Groep v Commission, 172/83 and 226/83, EU:C:1985:355, paragraph 9, and of 22 September 1988, France v Parliament, 358/85 and 51/86, EU:C:1988:431, paragraph 12).

In the present case, the actions in Cases T‑721/18 and T‑81/19 were both brought on the basis of Article 268 TFEU and the second paragraph of Article 340 TFEU and are between the same parties.

However, the fact remains that, although the two actions seek compensation for non-material damage allegedly caused to each of the applicants by the Commission, the damage for which compensation is sought is not the same in each case, in so far as it arises from different facts.

First, it is conceivable, a priori, that the repetition of allegedly false and defamatory allegations could, in itself, give rise to damage distinct from that initially caused solely on the basis that repetition took place in the appeal proceedings.

Second, contrary to the Commission’s contention, the Commission did not confine itself, on appeal, to repeating the allegations already made in the proceedings for interim measures and at first instance. The applicants have thus identified 17 new allegations in paragraphs 40 to 56 of the application. In that regard, the Commission merely argues that it did not make new allegations in the appeal proceedings. However, it is noteworthy that it does not explain where the allegations identified as new by the applicants had already been made in the proceedings for interim measures or the objection procedure at first instance.

Therefore, it is possible that those new allegations, if harmful, could give rise to non-material damage distinct from that alleged by the applicants in Case T‑721/18.

Furthermore, the plea alleging breach of the duty of truth and equity in proceedings, relied on by the applicants in Case T‑81/19, was not raised as such in the application in Case T‑721/18.

Since the subject matter of the two actions is not strictly identical, for the purposes of the case-law referred to in paragraph 98 above, it is not possible to conclude that there is lis pendens. Consequently, the action in Case T‑81/19 must be regarded as admissible as regards the claim for compensation for the non-material damage allegedly caused to each of the applicants by the allegations contained in the written pleadings lodged by the Commission’s lawyers with the Efeteio Athinon (Court of Appeal, Athens).

– Substance

Under the second paragraph of Article 340 TFEU, in the case of non-contractual liability, the European Union must, 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.

It is settled case-law that, in order for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct of its institutions, a number of cumulative conditions must be satisfied: the institution’s conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the alleged conduct and the damage pleaded (see, to that effect, judgments of 29 September 1982, Oleifici Mediterranei v EEC, 26/81, EU:C:1982:318, paragraph 16, and of 14 December 2005, Beamglow v Parliament and Others, T‑383/00, EU:T:2005:453, paragraph 95).

If any one of the three conditions governing the non-contractual liability of the European Union is not satisfied, the claims for damages must be rejected, without it being necessary to examine whether the other two conditions are satisfied (see, to that effect, judgments of 15 September 1994, KYDEP v Council and Commission, C‑146/91, EU:C:1994:329, paragraph 81, and of 20 February 2002, Förde-Reederei v Council and Commission, T‑170/00, EU:T:2002:34, paragraph 37). Furthermore, the EU judicature is not obliged to examine those conditions in any particular order (judgment of 9 September 1999, Lucaccioni v Commission, C‑257/98 P, EU:C:1999:402, paragraph 13).

The conduct alleged against the Commission

In Case T‑721/18, the applicants complain that, in the procedure for objecting to the enforcement of the order of 31 May 2016, Isotis v Commission (C‑450/14 P, not published, EU:C:2016:477), and the judgments of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679) and of 4 February 2016, Isotis v Commission (T‑562/13, not published, EU:T:2016:63), before the Monomeles Protodikeio Athinon (Court of First Instance (single judge), the Commission, through allegations made in its pleadings and the testimony of an OLAF official which the Commission knew to be false, portrayed the applicants as persons who had been directly involved in the management of the EU funds which Isotis had been ordered to reimburse to the Commission by those judgments. The Commission thus portrayed an image of the applicants, in the eyes of third parties, as insolvent and unreliable persons engaging in fraudulent acts, which seriously damaged their reputation. That serious harm to their reputation caused non-material damage amounting to EUR 500000 for each of them.

In Case T‑81/19, the applicants complain that the representatives of the Commission made allegations before the Efeteio Athinon (Court of Appeal, Athens) which the Commission knew to be false, some of which had already been made at first instance by those same representatives, and which sought, in essence, to mislead that court as to the first applicant’s involvement in Isotis’ management of European programmes and the fictitious nature of Isotis’ legal personality. The purpose of that conduct was, according to the applicants, to convince the Efeteio Athinon (Court of Appeal, Athens) that it was appropriate to disapply the provisions of national law which precluded the applicants from being held personally liable, in their capacity as partners, for Isotis’ debts to the Commission, which justified the enforcement of the judgments against the applicants.

The Commission denies the conduct alleged against it, stating that it did not portray the applicants as fraudsters before the Greek courts, but merely put forward some factual arguments to show that the conditions laid down in Greek law for enforcing the order of 31 May 2016 Isotis v Commission (C‑450/14 P, not published, EU:C:2016:477), and the judgments of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679) and of 4 February 2016, Isotis v Commission (T‑562/13, not published, EU:T:2016:63) against the applicants were met in this case.

In that regard, first, as regards the conduct alleged against the Commission in Case T‑721/18, it should be noted that the applicants refer to specific passages from the notes for deliberation of 14 December 2017, the submissions of 17 April 2018 and the supplementary statement of 20 April 2018, lodged by the Commission’s lawyers before the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens), and to the testimony of an OLAF official before that court, of 12 December 2017, reproduced in one of the notes for deliberation of 14 December 2017.

It must be observed that the note for deliberation of 14 December 2017, lodged in response to the applicants’ application for suspension of enforcement of 11 September 2017, contained the following statement:

‘In the two actions, the defendants are seeking, totally illegally and unfairly, to evade any responsibility and to distance themselves from a business that they have been monitoring and directly managing themselves for ten years through the intermediary of a close family member.’

That note for deliberation also contained the following statement:

‘… the first defendant was appointed as an administrator, legal representative and treasurer of the company and she alone managed all the company’s affairs under Article 748 et seq. of the Civil Code.’

The note in question also stated, on the subject of Isotis’ debt, established in the judgments of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679) and of 4 February 2016, Isotis v Commission (T‑562/13, not published, EU:T:2016:63), that ‘this [was] a debt which [had not been] incurred by a legal entity [which was] unrelated to them, but under the contract of a company with legal personality behind which the defendants were operating, together with a close family member’.

The Commission’s lawyers also stated in that note that ‘… it [had] also been proved in law that [the Commission] had allegedly suffered significant damage which was the direct consequence of the acts and omissions committed over many years by the senior executives of the civil company (the opposing party)’.

Furthermore, also in that note, the Commission’s lawyers reported the statements made by the OLAF official at the hearing on 12 December 2017 in the following terms:

‘… the only means of recovering European funds is to implement an enforcement measure in respect of the assets of the defendants (who were also the natural persons behind e-Isotis). … In particular, the first defendant was in charge of e-Isotis, organised it and managed it (with the assistance of her husband).’

It must be observed that the passages cited in paragraphs 113 to 117 above were reproduced in the second note for deliberation of 14 December 2017 lodged by the Commission’s lawyers, concerning the applicants’ application of 1 November 2017 for suspension of enforcement and for the protection of their character, and in the submissions of 17 April lodged by those lawyers.

It should also be noted that the supplementary statement which the Commission’s lawyers lodged with the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) on 20 April 2018 contained the following statement:

‘… the defendants remained the only partners in the civil company and, contrary to the claims made by their witnesses, were, from the beginning to the end, aware of the management, which was under their control, of the European public funds received by their company.’

It is apparent from the findings made by OLAF and by the Greek Public Prosecutor that the first applicant did not play a decisive role in the management of the EU funding received by Isotis.

It must therefore be held that the Commission’s description before the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) of the active role allegedly played by the applicants in managing Isotis is contradicted, as regards the first applicant, by the findings contained in the OLAF report of 15 September 2011 and by the Athens Public Prosecutor’s report of 23 May 2016.

However, it cannot be inferred from that finding alone that the Commission knowingly, and wrongly, portrayed the applicants as persons who had committed fraud affecting the financial interests of the European Union before the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens).

In the written pleadings lodged with the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens), the representatives of the Commission complained not that the applicants were guilty of fraudulent acts, but that they played an active role in the management of Isotis and, therefore, in Isotis’ failure to meet its contractual obligations to the Commission, which led the General Court to order Isotis to reimburse all the pre-financing received under nine grant agreements, plus default interest and liquidated damages, by judgment of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679), and to reimburse some of the pre-financing received under a tenth grant agreement, plus default interest, by judgment of 4 February 2016, Isotis v Commission (T‑562/13, not published, EU:T:2016:63).

Furthermore, in his report of 23 May 2016, the Athens Public Prosecutor took the view that there was no evidence that A, who was directly responsible for the management of the European programmes in which Isotis participated, including those covered by the grant agreements covered by the audit of February 2010, had committed fraud affecting the financial interests of the European Union. In those circumstances, the mere assertion that the applicants had played an active role in the management of Isotis, including as regards the management of EU financing, cannot be regarded as an accusation of fraud against them.

Second, as regards the conduct alleged against the Commission in Case T‑81/19, the applicants refer to specific passages of the submissions and the supplementary statement which the Commission’s representatives lodged with the Efeteio Athinon (Court of Appeal, Athens), set out in paragraph 55 above, which, as regards one of the parties, reproduce the allegations already made at first instance regarding the active role played by the applicants in the management of Isotis and, as regards the other party, call into question the reality of Isotis’ activity and, therefore the existence of its legal personality.

In that regard, it must be observed that the considerations set out in paragraphs 126 and 127 above concerning the conduct alleged against the Commission in Case T‑721/18 apply, mutatis mutandis, to the conduct alleged against it in Case T‑81/19.

Furthermore, irrespective of whether they are well-founded, the allegations made in the written pleadings which the Commission’s representatives lodged with the Efeteio Athinon (Court of Appeal, Athens), seeking to call into question the reality of Isotis’ activity and, therefore, the existence of its legal personality, do not in themselves imply an accusation of fraud affecting the financial interests of the European Union against the applicants.

In those circumstances, it is necessary to ascertain whether the fact that the representatives of the Commission maintained, wrongly, that the applicants had played an active role in the management of Isotis and made a number of factual claims seeking to call into question the reality of Isotis’ activity and, therefore, the existence of its legal personality, before the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) or before the Efeteio Athinon (Court of Appeal, Athens), constitutes unlawful conduct capable of giving rise to non-contractual liability on the part of the European Union.

– The unlawfulness of the conduct alleged against the Commission

It must be recalled, as regards the condition relating to the unlawful conduct alleged against the institution or body concerned referred to in paragraph 107 above, the case-law requires that a sufficiently serious breach of a rule of EU law intended to confer rights on individuals has been established (see, to that effect, judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 36). Such a breach is established where it is one that implies that the institution concerned manifestly and gravely disregarded the limits set on its discretion, the factors to be taken into consideration in that connection being, inter alia, the complexity of the situations to be regulated, the degree of clarity and precision of the rule breached and the measure of discretion left by that rule to the EU institution (see judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 33 and the case-law cited).

In the present case, in Case T‑721/18, the applicants submit that the conduct alleged against the Commission before the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) constituted a serious and manifest breach of rules intended to confer rights on individuals. Accordingly, the applicants claimed in their application that the Commission had infringed their right to human dignity, enshrined in Article 1 of the Charter of Fundamental Rights, Article 2 TEU, the preamble to the Universal Declaration of Human Rights and the case-law of the European Court of Human Rights. They also claimed that that conduct was contrary to the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights, the Code of Good Administrative Behaviour for Staff of the European Commission in their relations with the public (OJ 2000 L 267, p. 63) and Articles 4, 7 and 11 of the European Code of Good Administrative Behaviour.

It is important to point out that, in their application, the applicants also submitted that, by having sought to obtain the enforcement of the order of 31 May 2016 Isotis v Commission (C‑450/14 P, not published, EU:C:2016:477), and of the judgments of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679) and of 4 February 2016, Isotis v Commission (T‑562/13, not published, EU:T:2016:63) against them, the Commission had breached the principle of legality, which included the principle of pacta sunt servanda, enshrined in Article 216(2) TFEU, the principle of good faith, the principle of protection of legitimate expectations, their right to effective judicial protection, as well as their right to be heard and their right to a fair trial, enshrined in Article 47 of the Charter of Fundamental Rights. Furthermore, the applicants submitted, ‘in the alternative’, that, even if the Commission had been entitled to seek enforcement against them, it had done so in an unfair and illegal manner.

Accordingly, in the first place, with regard to the breach of the principle of good faith and the principle of the protection of legitimate expectations by the Commission’s conduct, the applicants observed, first, that the Commission was obliged, in accordance with the provisions of Regulation (EC) No 2321/2002 of the European Parliament and of the Council of 16 December 2002 concerning the rules for the participation of undertakings, research centres and universities in, and for the dissemination of research results for, the implementation of the European Community Sixth Framework Programme (2002-2006) (OJ 2002 L 355, p. 23), to ascertain whether the bodies with which it intended to conclude a financing contract under the Sixth Framework Programme had legal personality and, secondly, that the conclusion of the financing contracts between the Commission and Isotis had been preceded, in respect of each of those contracts, by the Commission’s acceptance of Isotis’ articles of association, which explicitly excluded the liability of its members beyond their capital contribution in the event of Isotis’ failure to fulfil its contractual obligations. The applicants also stated that the Commission was aware of Article 784 of the Greek Civil Code, which excluded the liability of the partners in a civil company such as Isotis in respect of the civil company’s failure to fulfil contractual obligations, and that until the commencement of enforcement proceedings, the Commission had never brought proceedings against the applicants requiring them to pay the amounts claimed from Isotis, nor had it alluded to doing so at any stage of the proceedings before the General Court, and then before the Court of Justice in the context of the dispute between it and Isotis.

The applicants submitted that, in those circumstances, by concluding several financing contracts with Isotis under the Sixth Framework Programme and subsequently participating in their implementation, the Commission had repeatedly and consistently given them the precise and unconditional confirmation, each time, that it recognised Isotis as having legal personality. Consequently, by stating in the written pleadings lodged by its lawyers before the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) that Isotis’ legal personality was disputed, that Isotis was not pursuing an economic aim and that, therefore, the conditions for the application of Article 784 of the Greek Civil Code were not met, the Commission breached the principle of the protection of legitimate expectations and the principle of good faith in the performance of agreements.

In the second place, as regards the Commission’s breach of the principle of legality, the applicants submitted that the Commission had commenced enforcement proceedings against them without observing the pre-litigation procedure provided for in Article 80 of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1). The applicants also submitted that the Commission had breached the principle of legality by attempting to recover a debt for which, in the absence of a debit note having been notified to them, the limitation period had expired in 2016, in accordance with Article 93(1) of Delegated Regulation No 1268/2012 and Article 252 of the Greek Civil Code.

In the third place, as regards the infringement of the right to effective judicial protection, the right to be heard and the right to a fair trial, enshrined in Article 47 of the Charter of Fundamental Rights, the applicants stated that, given the exclusive nature of the arbitration clauses contained in the grant agreements which were the subject of the audit of 10 February 2010, they had not had the opportunity to claim before the Court of Justice or the General Court, in the cases which gave rise to the order of 31 May 2016, Isotis v Commission (C‑450/14 P, not published, EU:C:2016:477) and to the judgments of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679) and of 4 February 2016, Isotis v Commission (T‑562/13, not published, EU:T:2016:63), or before a national court, that they could not be held personally liable, as partners, for the debts of Isotis.

Lastly, in the fourth place, as regards the argument that there was an abuse of rights, the applicants submitted that, in essence, the Commission had benefited from the results of the projects for which it had provided co-financing and which it used for its own purposes, that it had made savings on the co-financing of the ASK-IT and EU4ALL projects, which had never been paid to Isotis, that it had benefited from the applicants’ personal assets in the amount of EUR 200600, which the applicants had made available for the implementation of the projects, that it knew that more than 85% of the co-financing which it had paid to Isotis had subsequently been repaid in the form of tax to the Greek State, social security contributions and salaries to Isotis employees, and that it had not attempted to limit its claim by withholding from the funds of the consortium responsible for the projects the sums which it considered to be owed to it by Isotis, as it was entitled to do. In those circumstances, the applicants considered that, by asking them to repay all the sums which it had paid to Isotis, together with the corresponding interest, the Commission was seeking to obtain an excessive, unfair and, therefore, unlawful benefit.

In Case T‑81/19, the applicants claim that the conduct alleged against the Commission infringed their right to human dignity and the principle of good administration as well as the principles of legality, good faith and protection of legitimate expectations, in terms identical to those used in Case T‑721/18.

The applicants also claim that the conduct alleged against the Commission in Case T‑81/19 breached the requirement of truth and equity in proceedings and the fundamental general principle of the fair administration of justice.

The applicants submit in that regard that the Commission’s conduct flagrantly breached the requirement of truth and equity which it was obliged to observe during the proceedings against them, in accordance with Articles 116 and 261 of the Greek Code of Civil Procedure, as well as the fundamental general principle that lawyers acting on behalf of the Commission as its legal representatives, under the Greek code of conduct for lawyers, must contribute to the fair administration of justice by respecting the requirement of truth and equity, applicable to the procedure for objecting to enforcement under Article 299 TFEU. According to the applicants, those principles are set out in the Charter of core principles of the European legal profession, adopted at the plenary session of the Council of Bars and Law Societies of Europe (CCBE) in Brussels (Belgium) on 24 November 2006, which contains principles of law governing the legal profession common to the Member States.

The Commission disputes the admissibility of the applicants’ arguments, since they relate to issues which have already been definitively assessed by the Greek court, whose jurisdiction in that regard is derived from Article 299 TFEU.

Furthermore, the Commission contends that its conduct during the procedure for objecting to enforcement before the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) and before the Efeteio Athinon (Court of Appeal, Athens) is not vitiated by any illegality capable of giving rise to liability on the part of the European Union.

In that regard, in the first place, it should be noted that the applicants’ arguments set out in paragraphs 135 to 139 above do not relate to the allegations made in the written pleadings which the Commission’s representatives lodged with the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens), in the procedure for objecting to the enforcement of the order of 31 May 2016, Isotis v Commission (C‑450/14 P, not published, EU:C:2016:477), and the judgments of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679) and of 4 February 2016, Isotis v Commission (T‑562/13, not published, EU:T:2016:63), or to the testimony of an OLAF official in that procedure, by which the applicants’ reputation was allegedly damaged, but to the very fact that the Commission initiated proceedings against the applicants for the enforcement of those decisions.

It is also important to note that, in response to a question from the General Court, the applicants stated at the hearing that their claims for compensation sought only to obtain compensation for the damage caused to them by the allegations contained in the written pleadings lodged by the Commission’s representatives and the testimony of an OLAF official before the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens), and then before the Efeteio Athinon (Court of Appeal, Athens), in the procedure for objecting to the enforcement of the order of 31 May 2016, Isotis v Commission (C‑450/14 P, not published, EU:C:2016:477), and the judgments of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679) and of 4 February 2016, Isotis v Commission (T‑562/13, not published, EU:T:2016:63). The applicants stated that they criticised the Commission not for having sought to enforce those decisions against them, but for having knowingly made, for that purpose, false allegations before the Greek courts in order to call into question Isotis’ legal personality.

Furthermore, the applicants also stated at the hearing that their claims for damages were not based on the infringement of the principle of pacta sunt servanda, and that they considered that their right to a fair trial had been respected by the Greek courts in the procedure for objecting to the enforcement of the order of 31 May 2016, Isotis v Commission (C‑450/14 P, not published, EU:C:2016:477), and of the judgments of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679) and of 4 February 2016, Isotis v Commission (T‑562/13, not published, EU:T:2016:63), and that they were no longer claiming an infringement of their right to a fair trial in the present proceedings.

Therefore, it must be held that the applicants’ arguments alleging breach of the principle of good faith, the principle of protection of legitimate expectations, the principle of legality, the right to a fair hearing, the principle of pacta sunt servanda, the right to effective judicial protection and the right to be heard, as well as an abuse of rights, set out in paragraphs 135 to 139 above, must be dismissed as ineffective in that, by the applicants’ own admission, they do not support those claims for damages.

—

In the second place, as regards the alleged breach of the principle of good administration, enshrined in the EU legal order by Article 41 of the Charter of Fundamental Rights, the applicants merely assert, in very general terms, that the conduct alleged against the Commission in Case T‑721/18 and in Case T‑81/19 breached the principle of good administration, without in any way substantiating their arguments. It must therefore be held that that line of argument must be rejected as inadmissible, since the mere invocation of the principle of EU law which is alleged to have been infringed, without indicating the matters of fact and of law on which that allegation is based, does not satisfy the requirements of Article 76(d) of the Rules of Procedure (see, to that effect, judgment of 24 October 2018, Deza v Commission, T‑400/17, not published, EU:T:2018:712, paragraph 102).

In the third place, as regards the applicants’ argument alleging infringement of the right to human dignity, it should be observed that Article 1 of the Charter of Fundamental Rights, which provides that human dignity is inviolable and must be respected and protected, constitutes a rule of EU law intended to confer rights on individuals (see, to that effect, judgment of 3 May 2017, Sotiropoulou and Others v Council, T‑531/14, not published, EU:T:2017:297, paragraphs 75 and 76). It is therefore necessary to ascertain whether such an infringement is, in the present case, capable of giving rise to liability on the part of the European Union.

The applicants stated at the hearing that the Commission had offended their dignity by portraying them before the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) and before the Efeteio Athinon (Court of Appeal, Athens) as having defrauded the Commission and the European Union.

In that regard, it must be observed that, as stated in paragraphs 126 and 127 above, the applicants’ line of argument is based on the incorrect premiss that the Commission portrayed them as persons who had committed fraud affecting the financial interests of the European Union.

In any event, it should be borne in mind that the ability to assert one’s rights through the courts and the judicial control which that entails constitute the expression of a general principle of law which underlies the constitutional traditions common to the Member States, and which is also enshrined in Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (judgments of 15 May 1986, Johnston, 222/84, EU:C:1986:206, paragraphs 17 and 18 and of 17 July 1998, ITT Promedia v Commission, T‑111/96, EU:T:1998:183, paragraph 60), and in Article 47 of the Charter of Fundamental Rights (judgment of 4 April 2019, Rodriguez Prieto v Commission, T‑61/18, EU:T:2019:217, paragraph 75).

The applicants’ line of argument implies that any assertion by the Commission of fraudulent conduct on their part, in the procedure for objecting to the enforcement of the order of 31 May 2016, Isotis v Commission (C‑450/14 P, not published, EU:C:2016:477), and of the judgments of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679) and of 4 February 2016, Isotis v Commission (T‑562/13, EU:T:2016:63), necessarily entails an infringement of their right to dignity capable of giving rise to non-contractual liability on the part of the European Union, in so far as the assertion in question has been rejected by the Greek courts.

It follows that, if that line of argument were to be accepted, it would be tantamount to restricting the Commission’s right to bring proceedings before the national courts in order to obtain, on the basis of Article 299 TFEU, enforcement of a judgment of the General Court recognising its claim, in accordance with its obligations under Article 317 TFEU to ensure the sound management of EU resources and Article 325 TFEU to combat fraud and any other unlawful activities affecting the financial interests of the European Union.

The applicants’ arguments alleging infringement of their right to human dignity must therefore be dismissed.

In the fourth place, as regards the argument put forward by the applicants in Case T‑81/19 that the Commission, in the present case, infringed the principle of procedural fairness, the applicants do not allege infringement of a rule of EU law intended to confer rights on individuals, which is one of the conditions governing the non-contractual liability of the European Union laid down in the case-law referred to in paragraph 132 above, but infringement of Article 116(1) and Article 261 of the Greek Code of Civil Procedure and of the provisions of the Greek code of conduct for lawyers. It should also be noted that, in so far as the principle of procedural fairness may be regarded as a principle common to the laws of several Member States, such a principle has not yet been enshrined in EU law.

Moreover, it should be observed that, first, as provided in the second paragraph of Article 299 TFEU, ‘enforcement shall be governed by the rules of civil procedure in force in the State in the territory of which it is carried out’ and, second, in accordance with the fourth paragraph of Article 299 TFEU, the national courts have jurisdiction over complaints that enforcement is being carried out in an irregular manner.

It must be observed, in that regard, that the jurisdiction of national courts to review the lawfulness of enforcement measures extends not only to disputes connected with the enforcement of acts of the Council of the European Union, of the Commission or of the ECB, which impose an enforceable pecuniary obligation on persons other than States, but also to disputes connected with the enforcement of judgments of the General Court, in accordance with Article 280 TFEU and Article 60 of the Statute of the Court of Justice of the European Union.

Consequently, as the Commission rightly argues, it must be held that it was for the Efeteio Athinon (Court of Appeal, Athens), in the present case, to ensure that the conduct of the Commission’s representatives in the procedure for objecting to the enforcement of the order of 31 May 2016, Isotis v Commission (C‑450/14 P, not published, EU:C:2016:477), and of the judgments of 16 July 2014, Isotis v Commission (T‑59/11, EU:T:2014:679) and of 4 February 2016, Isotis v Commission (T‑562/13, EU:T:2016:63) was compliant with the principle of procedural fairness and, in particular, with Article 116(1) and Article 261 of the Greek Code of Civil Procedure, and with the provisions of the Greek code of conduct for lawyers.

That finding cannot be called into question by the argument put forward by the applicants at the hearing that it is for the General Court to assess whether the Commission breached the principle of procedural fairness before the Efeteio Athinon (Court of Appeal, Athens), since, in the present case, the General Court has exclusive jurisdiction to hear actions to establish non-contractual liability of the European Union or its servants.

It is true that the General Court has jurisdiction, in accordance with Article 268 TFEU, to hear and determine disputes relating to compensation for damage provided for in the second paragraph of Article 340 TFEU, which provides that ‘in 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’.

However, the General Court cannot rule, in an action brought on the basis of Article 268 TFEU and the second paragraph of Article 340 TFEU, on the alleged infringement by the Commission of a rule of national procedural law, in the context of a dispute concerning the enforcement of a judgment of the General Court before a national court, without undermining the prerogatives expressly reserved to the latter by Article 299 TFEU and, therefore, the division of powers between the EU judicature and the national courts established by the TFEU.

It follows that the applicants’ argument that the conduct alleged against the Commission in the present case is unlawful in that it breached the principle of procedural fairness must be dismissed as unfounded.

In the light of the foregoing considerations, it must be held that the applicants have not succeeded in demonstrating that the conduct alleged against the Commission in Case T‑721/18 and Case T‑81/19 constituted a sufficiently serious breach of a rule of law intended to confer rights on individuals, within the meaning of the case-law cited in paragraph 132 above.

In those circumstances, in accordance with the case-law cited in paragraph 108 above, the first head of claim for compensation and the second head of claim for compensation submitted by the applicants in both Cases T‑721/18 and T‑81/19 must be dismissed, without it being necessary to examine the other conditions governing the non-contractual liability of the European Union.

It follows that the actions must be dismissed as in part inadmissible and in part unfounded.

Under Article 134(1) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Ninth Chamber),

hereby:

1.Dismisses the actions;

2.Orders Ms Zoï Apostolopoulou and Ms Anastasia Apostolopoulou-Chrysanthaki to pay the costs.

Costeira

Kancheva

Perišin

Delivered in open court in Luxembourg on 21 December 2021.

[Signatures]

*1 Language of the case: Greek.

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