Provisional text

4 September 2024 (*)

( Non-contractual liability – EU Financial Regulations – Implementation of the EU budget under indirect management by an international organisation – Decision refusing to recognise a legal person as an international organisation – Sufficiently serious breach of a rule of law conferring rights on individuals – Duty of diligence – Material damage – Loss of opportunity to conclude indirect management agreements with the Commission as an international organisation and to receive the corresponding administrative costs – Causal link – Requirement of a direct and certain causal link – Unlawful act found has no bearing on the status of international organisation necessary for compensation – Occurrence of an event subsequent to the unlawful act which may be taken into account by the EU Courts – Retroactive decision finding that the status of international organisation necessary for compensation had not been achieved during the period in question )

In Case T‑381/15 RENV II,

International Management Group (IMG),

applicant,

European Commission,

defendant,

THE GENERAL COURT (Ninth Chamber, Extended Composition),

composed of L. Truchot (Rapporteur), President, H. Kanninen, R. Frendo, M. Sampol Pucurull and T. Perišin, Judges,

Registrar: L. Ramette, Administrator,

having regard to the judgment of 22 September 2022, IMG v Commission (C‑619/20 P and C‑620/20 P, EU:C:2022:722),

having regard to the written part of the procedure,

further to the hearing on 22 November 2023,

gives the following

1By its action based on Article 268 TFEU, the applicant, International Management Group (IMG), seeks compensation for the financial damage it claims to have suffered as a result of the European Commission’s decision of 8 May 2015 to no longer enter into new delegation agreements with it using the indirect management method provided for by the EU Financial Regulations for the benefit of international organisations until its legal status has been definitively clarified (‘the decision of 8 May 2015’).

Background to the dispute

Administrative background

2The applicant, initially named International Management Group – Infrastructure for Bosnia and Herzegovina (IMG-IBH), the headquarters of which are now in Belgrade (Serbia), was created on 25 November 1994 to provide the States and international organisations participating in the reconstruction of Bosnia and Herzegovina with an entity specifically created for that purpose. Since then, it has gradually extended its activities into the fields of reconstruction and development.

3On 7 November 2013, the Commission adopted Implementing Decision C(2013) 7682 final on the Annual Action Programme 2013 in favour of Myanmar/Burma to be financed from the general budget of the European Union, on the basis of Article 84 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1). That decision provided, inter alia, for a programme for trade development the cost of which, estimated at EUR 10 million, was to be financed by the European Union and implemented by joint management with the applicant.

4On 17 February 2014, the European Anti-Fraud Office (OLAF) informed the Commission that it had opened an investigation into the applicant’s status.

5On 15 December 2014, the Commission received the report drawn up by OLAF following its investigation, together with a number of recommendations. In that report, OLAF stated, in essence, that the applicant was not an international organisation within the meaning of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) and Regulation No 966/2012. In addition, OLAF recommended that the Commission impose penalties on the applicant and recover the sums paid to the applicant in that capacity.

6On 16 December 2014, the Commission decided to entrust the implementation, by indirect management, of the trade development programme provided for in Implementing Decision C(2013) 7682 final, referred to in paragraph 3 above, to an organisation other than the applicant (‘the decision of 16 December 2014’).

7Lastly, the Commission adopted the decision of 8 May 2015 by which it decided that, until there was absolute certainty regarding the applicant’s status as an international organisation, its department would no longer enter into any new delegation agreement with it using the indirect management method provided for in Regulation No 966/2012.

Legal background

8By a first application lodged at the Registry of the General Court on 21 January 2015 and registered under number T‑29/15, and then by a second application lodged on 14 July 2015 and registered under number T‑381/15, the applicant brought actions seeking, first, annulment of the decision of 16 December 2014 and, secondly, annulment of the decision of 8 May 2015 and for compensation for the damage caused by that decision.

9By judgments of 2 February 2017, International Management Group v Commission (T‑29/15, not published, EU:T:2017:56), and of 2 February 2017, IMG v Commission (T‑381/15, not published, EU:T:2017:57), the General Court dismissed the applicant’s actions against the decisions of 16 December 2014 and 8 May 2015.

10By two appeals lodged on 11 April 2017 and registered under numbers C‑183/17 P and C‑184/17 P, the applicant sought to have the two judgments referred to in paragraph 9 above set aside.

11By judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), the Court of Justice, first, set aside the two judgments referred to in paragraph 9 above, second, annulled the decisions of 16 December 2014 and 8 May 2015, and third, referred Case T‑381/15 back to the General Court for a ruling on the claim for damages submitted by the applicant in respect of the harm allegedly caused by the decision of 8 May 2015.

12By application lodged at the Registry of the Court of Justice on 10 January 2020, the applicant asked the Court to interpret points 1 to 3 of the operative part of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78). By order of 9 June 2020, International Management Group v Commission (C‑183/17 P-INT, EU:C:2020:507), the Court dismissed that application for interpretation as being manifestly inadmissible.

Administrative actions following the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P)

13By letter of 6 May 2019, the Commission requested that the applicant, in the context of compliance with the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), produce certain documents, in order to demonstrate that the applicant did in fact fulfil the requirements to be able to work with the Commission using the indirect management method.

14By letter of 25 June 2019, the applicant, in essence, asked the Commission to cease challenging its status as an international organisation.

15By letter of 18 July 2019 (‘the letter of 18 July 2019’), the Commission submitted that implementation of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), did not require ‘automatic recognition of [the applicant] as an international organisation, but rather the reassessment of its legal status in the light of available information and the applicable financial rules’. Accordingly, the Commission repeated its request to the applicant to produce the documents referred to in the letter of 6 May 2019, to which reference is made in paragraph 13 above, and stated that, in the event of a refusal on its part, it would turn directly to the States which the applicant considered to be its members.

16On 26 November 2019, the Commission asked Belgium, Denmark, Germany, Greece, Spain, France, Italy, the Netherlands, Austria, Portugal, Finland, Sweden, the United Kingdom, Canada, Norway, Russia, Switzerland and Türkiye whether they considered the applicant to be an international organisation, whether they were members of that organisation, and whether they had signed an international or intergovernmental agreement establishing the applicant as an international organisation. If so, the Commission asked those States to send it a certified copy of that agreement and proof that its signatories had full powers to sign it or a copy of the instrument of ratification of that agreement.

17By letter of 19 February 2021, the Commission informed the applicant that it intended to adopt a decision refusing to accord it the status of an international organisation and invited it to submit observations.

18On 5 and 30 March 2021, the applicant submitted written observations in response to the Commission’s letter of 19 February 2021 referred to in paragraph 17 above.

19On 8 June 2021 the Commission adopted a decision refusing to accord the applicant, with retroactive effect from 16 December 2014, the status of an international organisation provided for by the EU Financial Regulations for the implementation of EU funds using the indirect management method (‘the decision of 8 June 2021’).

Judicial actions following the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P)

20By application lodged at the Registry of the General Court on 26 September 2019 and registered under number T‑645/19, the applicant brought an action seeking, first, annulment of the letter of 18 July 2019 and, second, compensation for the material and non-material harm allegedly caused by that letter.

21By order of 9 September 2020, IMG v Commission (T‑645/19, not published, EU:T:2020:388), the General Court dismissed that action as inadmissible.

22In addition, by judgment of 9 September 2020, IMG v Commission (T‑381/15 RENV; ‘the initial judgment’, EU:T:2020:406), the General Court rejected the applicant’s claim for compensation for the harm allegedly caused by the decision of 8 May 2015.

23On 19 November 2020, the applicant brought two appeals, registered under numbers C‑619/20 P and C‑620/20 P, seeking to have the order referred to in paragraph 21 above and the initial judgment set aside.

24By judgment of 22 September 2022, IMG v Commission (C‑619/20 P and C‑620/20 P; ‘the judgment on appeal’, EU:C:2022:722), the Court of Justice, first, dismissed the appeal in Case C‑619/20 P, second, set aside the initial judgment in part and, third, referred Case T‑381/15 RENV back to the General Court for a ruling on the applicant’s claim for damages for the material harm allegedly caused by the decision of 8 May 2015.

Forms of order sought following referral

25The applicant claims that the Court should:

–order the Commission to pay it damages of EUR 4.8 million, together with default interest at the European Central Bank (ECB) rate plus three percentage points, as compensation for the financial damage allegedly caused by the decision of 8 May 2015;

–order the Commission to pay the costs.

26The Commission contends that the Court should:

–dismiss the action;

–order the applicant to pay the costs.

27As a preliminary point, it should be recalled that, when a decision of the General Court has been set aside by the Court of Justice and the case has been referred back to the General Court, the General Court is seised of the case by the judgment of the Court of Justice, in application of Article 215 of the Rules of Procedure of the General Court, and must rule on all the claims submitted by the applicant, apart from those reflected in the elements of the operative part of the initial decision of the General Court that were not set aside by the Court of Justice and the grounds constituting the necessary basis of those findings, which have acquired the authority of res judicata (see, to that effect, judgment of 15 December 2021, Czech Republic v Commission, T‑627/16 RENV, not published, EU:T:2021:894, paragraph 105 and the case-law cited).

28The second paragraph of Article 61 of the Statute of the Court of Justice of the European Union provides that, where a case is referred back to the General Court, the General Court is to be bound by the decision of the Court of Justice on points of law (see judgment of 1 October 2020, CC v Parliament, C‑612/19 P, not published, EU:C:2020:776, paragraph 24 and the case-law cited).

29In the present case, the applicant claims that, in the judgment on appeal, the Court of Justice found that there had been a sufficiently serious breach of the Commission’s duty of diligence when it adopted the decision of 8 May 2015 and that, as a consequence, it is for the General Court to resume the examination of its claim for compensation in so far as it relates to the financial harm it suffered.

30In that context, the applicant submits that the decision of 8 May 2015 caused it harm consisting of a loss of opportunity to be entrusted by the Commission with budget implementation tasks between 8 May 2015 and 8 June 2021 and, accordingly, to receive ‘indirect costs envelopes’ which are charged to the budgets of delegation agreements for indirect management and which enabled it to finance its overheads.

31First, the applicant alleges a financial loss corresponding to the indirect costs envelopes that it would have received if its volume of business with the Commission had remained constant after the adoption of the decision of 8 May 2015. In that regard, it states that its volume of business related to EU financing fell from EUR 10 million per year on average to EUR 5 million in 2015, to EUR 0.5 million in 2016 and in 2017, and then to 0 from 2018.

32Second, the applicant considers that the decision of 8 May 2015 resulted in a loss of opportunity to increase the volume of business linked to EU financing at the same rate as in the period between 2010 and 2014.

33The applicant submits that the loss of opportunity to benefit from a volume of business greater than that of the period between 2010 and 2014 or, at the very least, equivalent to that period, was very serious, as demonstrated by, on the one hand, the increase in its volume of business linked to EU financing of EUR 4.5 million between 2010 and 2014 and, on the other, the fact that the Commission did not call into question the quality of its services and its positioning as a ‘trusted partner’.

Thus, the applicant submits that the legal defects as to the substance vitiating the decision of 8 May 2015 affected its chances of being awarded budget implementation tasks as an international organisation after the adoption of that decision.

35Furthermore, it submits that the adoption of the decision of 8 June 2021 has no bearing on the direct causal link between the legal defects vitiating the decision of 8 May 2015 and the subsequent loss of opportunity to receive new EU financing under the indirect management method. In that regard, it relies on paragraph 89 of the judgment on appeal.

36The Commission disputes the merits of the applicant’s claims.

37As a preliminary point, it should be recalled that, according to settled case-law, the European Union may incur non-contractual liability only if a number of conditions are fulfilled, namely the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals, the fact of damage and the existence of a causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties (see judgment of 27 April 2023, Fondazione Cassa di Risparmio di Pesaro and Others v Commission, C‑549/21 P, not published, EU:C:2023:340, paragraph 113 and the case-law cited).

38In the first place, as regards the condition relating to the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals, it must be observed that the Commission enjoys a broad discretion when exercising its responsibility for implementing the EU budget using the indirect management method, which allows that institution to entrust budget implementation tasks to international organisations, in accordance with Article 58(1)(c) of Regulation No 966/2012 and Article 62 of Financial Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1) (see, to that effect, judgment on appeal, paragraph 148).

39Moreover, it must also be observed that the duty of diligence, which is inherent in the principle of good administration, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, and which applies generally to the action of the EU administration in its relations with the public, requires the EU institutions to act with care and caution by examining all the relevant aspects of the individual case (see, to that effect, judgment on appeal, paragraph 168 and the case-law cited).

40In the present case, it follows from paragraphs 189 to 194 of the judgment on appeal that the Court found that there had been a sufficiently serious breach of the Commission’s duty of diligence when adopting the decision of 8 May 2015.

41More specifically, in paragraph 192 of the judgment on appeal, the Court found that the Commission had shown a manifest lack of diligence in the examination which it was called upon to carry out with regard to the applicant’s situation, by failing to address the questions which were at the heart of that examination or by drawing conclusions from that examination which were clearly inappropriate, deficient, unreasonable or unsubstantiated.

42In addition, in paragraph 193 of the judgment on appeal, the Court held that the decision of 8 May 2015 was manifestly lacking legal and factual justification since it did not contain any legal analysis of the concept of ‘international organisation’ within the meaning of the EU Financial Regulations and the evidence relied on to support it was incapable of casting doubt on the applicant’s status as an international organisation, as the Court had definitively found in its judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78).

43Consequently, in accordance with the principles set out in paragraphs 27 and 28 above, it must be held that, by adopting the decision of 8 May 2015, the Commission failed to comply with its duty of diligence, and, in so doing, committed a sufficiently serious breach of EU law such as to render it liable.

44In the second place, in accordance with settled case-law, any damage for which compensation is sought in an action for non-contractual liability of the European Union under the second paragraph of Article 340 TFEU must be actual and certain. Moreover, in order for the non-contractual liability of the European Union to be capable of being established, the damage must flow sufficiently directly from the unlawful conduct of the institutions (see judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 61 and the case-law cited).

45In any event, it is for the party seeking to establish the European Union’s non-contractual liability to adduce conclusive proof as to the existence and extent of the damage it alleges and as to the existence of a sufficiently direct causal nexus between the conduct of the institution concerned and the damage alleged (see judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 62 and the case-law cited).

46Furthermore, the existence of actual and certain damage cannot be considered in the abstract by the EU Courts but must be assessed in relation to the specific facts characterising each particular case in point (see judgment of 18 November 2021, Mahmoudian v Council, C‑681/19 P, not published, EU:C:2021:933, paragraph 32 and the case-law cited).

47In particular. it must be held that, where the Commission unlawfully refuses to conclude a delegation agreement using the indirect management method with an international organisation, it is possible that the organisation concerned may thereby suffer damage corresponding to the lost opportunity to obtain that delegation.

48The total exclusion, in respect of the damage for which compensation may be granted, of the loss of opportunity to conclude a delegation agreement using the indirect management method, cannot be accepted in the event of an infringement of EU law since, especially in the case of economic disputes, such total exclusion of that loss of opportunity would be such as to make it practically impossible to make good the damage suffered (see, by analogy, judgments of 5 March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 87; of 13 July 2006, Manfredi and Others, C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 96 and the case-law cited; and of 17 April 2007, AGM‑COS.MET, C‑470/03, EU:C:2007:213, paragraph 95).

49In the present case, it must be recalled that Article 14.4 of the document entitled ‘General conditions applicable to European Union contribution agreements with international organisations’ states that a fixed percentage of eligible direct costs, not exceeding 7%, may be claimed as indirect costs by the international organisation concerned to cover the general expenses involved in implementing a project under the indirect management method and that the reimbursement of those indirect costs is made without there being any need for that organisation to produce accounting documents.

50Thus, it follows from paragraphs 47 and 48 above that, in circumstances such as those of the present case, where the Commission unlawfully refuses to conclude a delegation agreement using the indirect management method with an international organisation, the organisation concerned may seek compensation for harm corresponding not to financial compensation for the indirect costs which the implementation of such an agreement would have entailed, but to the loss of the opportunity to obtain such compensation.

51As regards, more specifically, the circumstances of the present case, it is apparent from the information provided by the applicant, which was not disputed by the Commission, that the Commission no longer entered into delegation agreements with it using the indirect management method after the adoption of the decision of 8 May 2015, with the result that the share of EU financing in the applicant’s volume of business fell from EUR 13.5 million in 2014 to EUR 5.3 million in 2015 and then to 0 in 2018.

52Thus, according to the table in Annex S.1 provided by the applicant, the share of EU financing in its volume of business rose from 40% in 2010 and in 2011 to 50% in 2014, fell to 32% in 2015 and has been 0 since 2018.

53Moreover, it is apparent from that table that, although the applicant’s net income was already in deficit in 2012 and in 2014, that deficit increased between 2015 and 2018, in the absence of EU financing for its benefit since the adoption of the decision of 8 May 2015.

54Furthermore, it is not apparent from the documents in the file that the applicant was able to maintain its volume of business thanks to a funder with a financial capacity equivalent to that of the European Union.

55Therefore, it cannot be disputed that, since the adoption of the decision of 8 May 2015, and the failure to conclude delegation agreements for indirect management between the Commission and the applicant, the applicant has seen its volume of business decrease substantially and that the failure to collect the sums intended to compensate for the indirect costs referred to in paragraph 49 above could only have worsened its financial situation.

56Nevertheless, the mere fall in the applicant’s turnover following the decision of 8 May 2015 is not sufficient to establish the existence of financial harm corresponding to the loss of opportunity of being awarded a delegation agreement using the indirect management method and the fact that such harm was caused by the legal defects vitiating that decision.

57Thus, in accordance with paragraphs 44 and 45 above, it is for the General Court to examine, first, whether the applicant’s financial situation as from 8 May 2015 is the direct and certain result of the unlawfulness of the decision of 8 May 2015 and, second, whether the applicant shows that, on that date, it had, as it claims, a serious chance of continuing the implementation of the EU budget using the indirect management method and, therefore, of receiving the sums set out in paragraph 49 above by way of compensation for indirect costs.

58First, as regards the question of whether there is a sufficiently direct causal link between the legal defect vitiating the decision of 8 May 2015 and the loss of opportunity relied on by the applicant, it should be borne in mind that the legal defect consists of the breach of the duty of diligence incumbent on the Commission in the exercise of its discretion.

59The unlawfulness resulting, when a decision is adopted by an EU institution, from a breach of the duty of diligence does not necessarily affect the merits of the decision concerned.

60That is true of the legal defect affecting the decision of 8 May 2015.

61It follows from paragraphs 92 to 96 and 104 of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), that, by that judgment, the Court of Justice found that the decision of 8 May 2015 was unlawful in so far as the factors relied on by the Commission in support of that decision were not such as to call into question the applicant’s status as an international organisation within the meaning of the EU Financial Regulations.

62In so doing, the Court merely held that the doubts expressed by the Commission, on the basis of a series of factors, regarding the applicant’s status as an international organisation, were incorrect in law. However, it did not in any way settle the question of whether, on the basis of an analysis not vitiated by any errors of law and of all the relevant factors, it should be found that the applicant had such a status on the date on which the decision of 8 May 2015 was adopted (see, to that effect, order of 9 June 2020, International Management Group v Commission, C‑183/17 P-INT, EU:C:2020:507, paragraph 23).

63Thus, it follows from paragraph 113 of the judgment on appeal that, following the delivery of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), the Commission was not obliged to recognise, with retroactive effect, the status of international organisation claimed by the applicant, but could meet its obligation to comply with the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), by adopting procedural measures designed to enable it to remedy the irregularity found by the Court and, potentially, to adopt a new act, intended to replace the decisions annulled by the Court, after having obtained the information which it considered necessary to substantiate that new act in law and in fact.

64In particular, the Court held, in paragraph 156 of the judgment on appeal, that, although the decision of 8 May 2015 was set aside because it was not legally and factually justified, in the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), it did not in any event rule on the question, which was unrelated to the disputes before it, of whether, on the basis of an analysis which was not vitiated by an error of law and taking account of all the relevant elements of fact and law, it had to be considered or, on the contrary, ruled out, that the applicant had the status of an international organisation.

65It follows from the foregoing that the finding that the decision of 8 May 2015 was unlawful did not entail any obligation for the Commission to recognise the applicant’s status as an international organisation, which it claimed, even though such recognition was, under the EU Financial Regulations and in the applicant’s case, a mandatory condition for it to be able to continue to implement the EU budget using the indirect management method and, therefore, for the General Court to be in a position to find, in the context of the present action for damages, that it justifies a loss of opportunity to conclude new management agreements under that method with the Commission.

66Consequently, the breach of the duty of diligence vitiating the decision of 8 May 2015 cannot be regarded as the direct and certain cause of the financial harm which it alleges, namely the loss of the opportunity to conclude, after that date, as an international organisation, new delegation agreements for the management of the EU budget using the indirect management method and to receive the sums referred to in paragraph 49 above.

67Second, as regards the question whether the harm alleged by the applicant is actual and certain, it follows from the decision of 8 June 2021, the lawfulness of which the General Court has confirmed by a judgment delivered today, IMG v Commission (T‑509/21), by dismissing as unfounded the action brought by the applicant against that decision, that the applicant cannot claim the status of an international organisation since 16 December 2014.

68Thus, since, in accordance with the decision of 8 June 2021, the applicant did not satisfy, on the date of adoption of the decision of 8 May 2015 and subsequently, the condition of holding the status of an international organisation provided for by the EU Financial Regulations, it did not have the slightest chance of continuing to implement the EU budget using the indirect management method and of receiving, as a result, the sums referred to in paragraph 49 above by way of compensation for indirect costs.

69In the light of the foregoing considerations, the present action for damages, which is based on the premiss that the applicant constituted an international organisation within the meaning of the EU Financial Regulations and, to that end, had a serious chance of continuing to implement the EU budget using the indirect management method, cannot succeed.

70Third, the objections raised by the applicant are not such as to call into question the finding referred to in paragraph 69 above.

71First of all, the applicant relies on paragraph 89 of the judgment on appeal, in which the Court of Justice held that the question whether the decision of 8 May 2015 may have caused harm of a non-material and material nature in respect of which the applicant had an interest in seeking compensation could not be affected by the fact that the Commission, in the decision of 8 June 2021, which was adopted six years later and based on a different legal and factual assessment, came to the conclusion that the applicant could not be regarded as an international organisation.

72In so doing, the Court ruled on a plea of inadmissibility raised by the Commission alleging that the applicant no longer had an interest in bringing proceedings in the appeal brought against the initial judgment and that that appeal was devoid of purpose.

73Thus, the Court did not rule on the separate question of the impact of the decision of 8 June 2021 on the merits of the applicant’s claims for compensation, in particular, on the existence of a direct and certain causal link between the decision of 8 May 2015 and the financial harm it alleged, or on the actual and certain nature of that harm, namely an alleged loss of a serious opportunity to continue to implement the EU budget using the indirect management method.

74Furthermore, the reference, in paragraph 89 of the judgment on appeal, to paragraph 39 of the judgment of 10 September 2019, HTTS v Council

(C‑123/18 P, EU:C:2019:694), does not support the applicant’s argument either since, by that reference, the Court of Justice merely stated that unlawfulness of an act or of conduct that may give rise to non-contractual liability of the European Union must be assessed by the General Court on the basis of the facts and the law as they stood at the time when the act or conduct was adopted.

Thus, the case-law cited in paragraph 89 of the judgment on appeal sets out the factors that the EU Courts must take into consideration when assessing whether there has been a sufficiently serious breach of EU law on the part of the institution concerned (see, to that effect, judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraphs 37 to 39).

By contrast, the case-law cited in paragraph 89 of the judgment on appeal does not specify the factors which the EU Courts must take into consideration in order to assess the existence of damage and the causal link between the unlawfulness found and the harm alleged and, therefore, does not preclude them from taking account of matters of fact or of law subsequent to the adoption of the unlawful act or conduct for the purposes of such an assessment.

On the contrary, having regard to the fact that the damage, which necessarily postdates the event giving rise to it, may evolve over time, the party which considers that it has suffered damage on account of action on the part of an institution must be able to rely on matters which postdate the event giving rise to it in order to attest to the existence of such damage (see, to that effect, Opinion of Advocate General Pitruzzella in HTTS v Council, C‑123/18 P, EU:C:2019:173, point 26).

Thus, according to the principle of equality of arms, the defendant must also be able to rely on matters of fact or of law which occurred after the adoption of the unlawful act, which are alleged to be the determining cause of the damage, in order to mitigate that damage, or even to contest any right to compensation on the ground that those factors lead to the exclusion of any direct causal link between the unlawfulness of that act and the damage alleged.

Moreover, an interpretation to the effect that the applicant’s right to compensation should prevent the General Court from taking into account, in the present action, the retroactive effect of the decision of 8 June 2021, would be inconsistent with the reasoning set out in paragraph 113 of the judgment on appeal which illustrates the principle that the institution which has issued a decision which has been annulled may adopt a new decision having retroactive effect in order to preserve the force of res judicata attaching to the annulling judgment.

Thus, the annulment of a decision by the EU Courts does not imply a right to compensation for the financial harm alleged by the addressee of that decision if, after the annulling judgment, the institution concerned adopts a retroactive decision the operative part of which is identical and the EU Courts consider that the operative part of that new decision is lawful (see, to that effect, judgments of 6 June 2019, Barnett v EESC, C‑503/18 P, not published, EU:C:2019:474, paragraph 78, and of 14 October 2021, KF v EESC, C‑464/20 P, not published, EU:C:2021:848, paragraphs 38 to 40).

Furthermore, the applicant submits that the reasoning that account must be taken of the decision of 8 June 2021 with regard to the present action for damages has the effect of depriving it of any right to compensation.

That objection is unfounded in so far as, in the present proceedings, the claim brought before the General Court seeks only compensation for financial harm corresponding to the applicant’s loss of opportunity to conclude new delegation agreements with the Commission under the indirect management method after the adoption of the decision of 8 May 2015 and, therefore, to receive the sums referred to in paragraph 49 above by way of compensation for indirect costs.

Thus, the adoption of the decision of 8 June 2021 has no bearing on the possibility for the applicant to submit a claim for compensation for non-material damage resulting from the unlawfulness of the decision of 8 May 2015, a claim in respect of which the Court of Justice has, moreover, given a final ruling in paragraphs 197 to 200 of the judgment on appeal.

It follows from the foregoing that applicant’s claims for compensation must be dismissed as unfounded.

In accordance with Article 219 of the Rules of Procedure, it is for the General Court, when it rules after the Court of Justice has set the judgment aside and referred the case back to the General Court, to decide on the costs relating, first, to the proceedings instituted before it and, second, to the proceedings on the appeal before the Court of Justice. Moreover, in accordance with Article 134(1) and (3) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings, and the parties are to bear their own costs where each party succeeds on some and fails on other heads. Lastly, in accordance with Article 135(1) of the Rules of Procedure, if equity so requires, the General Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing its own, or even that it is not to be ordered to pay any.

In the present case, it must be recalled that, in point 6 of the operative part of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), the Court of Justice ordered the Commission to pay the costs in Cases C‑183/17 P, C‑184/17 P and in Case T‑29/15, whereas, in point 7 of the operative part of that judgment, it reserved the costs in Case T‑381/15.

In addition, in points 7 and 8 of the operative part of the judgment on appeal, the Court of Justice, respectively, ordered the applicant to pay the costs in Case C‑619/20 P and reserved the costs in Cases C‑620/20 P and T‑381/15 RENV.

Consequently, it is for the General Court, in the present proceedings, to rule on the costs relating to Cases T‑381/15 and T‑381/15 /RENV, Case C‑620/20 P and the present proceedings after referral.

As regards the costs incurred in Cases T‑381/15, T‑381/15 RENV and C‑620/20 P, it should be noted that, at the end of those proceedings, the Commission was essentially unsuccessful.

Moreover, as regards the costs incurred in the present proceedings, although the applicant has been unsuccessful, it has been found, however, that the Commission vitiated the decision of 8 May 2015 with legal defects and, in so doing, committed a sufficiently serious breach of EU law which may have encouraged the applicant to persist in its claims for compensation.

In those circumstances, the General Court considers it equitable, for Cases T‑381/15, T‑381/15 RENV and C‑620/20 P and for the present proceedings, to order the Commission to bear its own costs and a sum corresponding to half of the applicant’s costs.

On those grounds,

hereby:

1.Dismisses the action;

2.Orders the Commission, in Cases T‑381/15, T‑381/15 RENV, C‑620/20 P and T‑381/15 RENV II, to bear its own costs and half of the costs incurred by International Management Group (IMG).

Truchot

Kanninen

Frendo

Sampol Pucurull

Perišin

Delivered in open court in Luxembourg on 4 September 2024.

[Signatures]

—

Language of the case: French.