27 November 2020 (*)

(Application for interim measures – Grant agreement concluded in the framework of the Seventh Framework Programme for research, technological development and demonstration activities (2007-2013) – Recovery of sums paid – Application for suspension of operation of a measure – No urgency)

In Case T‑475/20 R,

LE, represented by M. Straus, lawyer,

applicant,

European Commission, represented by J. Estrada de Solà, acting as Agent,

defendant,

APPLICATION under Article 299 TFEU for suspension of operation of Commission Decision C(2020) 3988 final of 9 June 2020 establishing an enforceable financial obligation against the applicant,

makes the following

Facts, procedure and forms of order sought

The applicant, LE, is a company which offers clean and sustainable products and processes using technology based on carbon dioxide (CO2).

In the context of the Seventh Framework Programme for research, technological development and demonstration activities (2007-2013), adopted by Decision No 1982/2006/EC of the European Parliament and of the Council of 18 December 2006 (OJ 2006 L 412, p. 1), the European Commission concluded, on 28 June 2011, a grant agreement ENER/FP7/268208/ALL-GAS (‘the grant agreement’) with Aqualia Gestion Integral del Agua SA, acting as coordinator of the implementation of the project entitled ‘Industrial scale demonstration of sustainable algae cultures for biofuel production (ALL-GAS)’ (‘the project’).

The applicant, which joined the project as a contractor, was entitled to invoice the eligible costs of its subsidiary, which remained a third party to the agreement, thus making the applicant alone liable to the European Union.

On 27 July 2011, the Commission granted pre-financing of EUR 2 487 338 to the coordinator.

On 8 September 2011 and 28 June 2012, two payments were made to the applicant, from the abovementioned amount, totalling EUR 514 552.91.

On 12 February 2013, the Commission made an interim payment in the amount of EUR 270 187.90 to the applicant.

On 8 August 2013, the Commission suspended the grant agreement for non-compliance with contractual obligations, on account of the ‘significant level of distrust amongst the consortium partners which [had an impact on] the implementation of the project’.

By letter of 14 August 2013, the coordinator informed the Commission of its complaints concerning the applicant’s conduct.

By letter of 26 September 2013, having regard in particular to the complaints set out in the letter of 14 August 2013, the members of the project notified the applicant of their decision to request an amendment to the grant agreement in order to have the participation of the applicant and its subsidiary under that agreement terminated.

On 21 December 2013, the applicant informed the Commission of its position regarding the possible termination of its participation under the grant agreement.

On 20 June 2014, an amendment to the grant agreement was agreed in order to note the applicant’s withdrawal from participation, as a beneficiary under that agreement, with effect from 26 July 2013. The amendment to the grant agreement also noted the withdrawal of third parties connected with the applicant, with effect from 26 July 2013.

On 5 November 2014, the Commission sent a payment letter to the coordinator for the second interim period of the project, in which it indicated that an amount of EUR 487 669.65 was to be recovered from the applicant.

By letter of 19 November 2014, the members of the project requested the applicant to reimburse the amount of EUR 487 669.65.

On 8 January 2016, following a series of letters concerning the recovery of the abovementioned payment, a meeting took place between the applicant and the Commission.

From 11 to 15 April 2016, the applicant’s subsidiary was audited in connection with the costs declared for the first and second reference periods of the grant agreement.

On 14 October 2016, the draft audit report was sent to the applicant’s subsidiary.

On 11 November 2016, the applicant’s subsidiary sent its observations on the draft audit report.

On 16 December 2016, the Commission sent the letter of its findings with the final audit report to the applicant’s subsidiary.

On 26 October 2017, the Commission sent the applicant a pre-information letter informing it of the Commission’s intention to recover from it the sums of EUR 10 910.01 and EUR 963.80, in the context of the implementation of the audit report of the applicant’s subsidiary.

Also on 26 October 2017, the Commission sent the applicant a pre-information letter informing it of its intention to recover the sum of EUR 346 627.56 from it.

On 23 November 2017, the applicant replied to the Commission’s pre-information letter informing it of the Commission’s intention to recover from it the sum of EUR 346 627.56.

On 19 February 2018, further, inter alia, to the applicant’s observations of 23 November 2017, the Commission accepted an additional eligible EU contribution of EUR 82 586.25.

On 21 March 2018, the Commission sent debit note No 3241801992 to the applicant, relating to the sum of EUR 264 041.31 corresponding to the difference between the amount of EUR 346 627.56 initially sought and the additional eligible EU contribution, in the amount of EUR 82 586.25.

Also on 21 March 2018, the Commission sent debit notes No 3241803343 and No 3241803362 to the applicant, relating respectively to the sums of EUR 10 910.01 and EUR 963.80 due from the applicant on behalf of its subsidiary.

On 22 May 2018, and in the absence of payment of the abovementioned sums, the Commission sent three reminders to the applicant by registered mail with acknowledgement of receipt.

On 27 June 2018, and in the absence of payment of the abovementioned sums, the Commission sent three letters of formal notice to the applicant by registered mail with acknowledgement of receipt.

On 9 June 2020, the Commission adopted Decision C(2020) 3988 final for the purpose of recovery of the abovementioned sums in the principal amount of EUR 275 915.12, together with default interest amounting to EUR 19 464.83, due from the applicant under debit notes Nos 3241801992, 3241803343 and 3241803362 (‘the contested decision’). The contested decision was adopted on the basis of Article 299 TFEU, Article 4 of which states that, under that provision, that decision is enforceable.

By application lodged at the General Court Registry on 9 August 2020, the applicant brought an action seeking, inter alia, the annulment of the contested decision.

By a separate document, lodged at the Court Registry on 28 July 2020, the applicant brought the present application for interim measures, in which it claims, in essence, that the President of the General Court should:

–suspend the operation of the contested decision and the related debit decisions and notes and the implementation of that decision by the European Commission and by any national bodies authorised under Article 299 TFEU;

–suspend the operation of the applicant’s obligation to pay any amount resulting from the contested decision and the related debit decisions and notes;

–in the alternative, order such other measures as the Court may deem just and appropriate;

–order the Commission to pay the costs, including those of the present proceedings.

In its observations on the application for interim measures, which were lodged at the Court Registry on 14 September 2020, the Commission contends that the President of the General Court should:

–dismiss the application for suspension of operation as unfounded;

–order the applicant to pay the costs.

Law

General considerations

In accordance with Article 161(1) of the Rules of Procedure of the General Court, an application for suspension of the enforcement of a Commission measure, made under Article 299 TFEU, is to be governed by the provisions of Section 2 of that regulation, entitled ‘Suspension of operation or enforcement and other interim measures’.

It is apparent from a combined reading of Articles 278 and 279 TFEU, on the one hand, and Article 256(1) TFEU, on the other, that the judge hearing the application for interim measures may, if he or she considers that the circumstances so require, order a suspension of operation of an act contested before the General Court or prescribe any necessary interim measures, in accordance with Article 156 of the Rules of Procedure. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).

Article 156(4) of the Rules of Procedure requires applications for interim measures to state ‘the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.

The judge hearing an application for interim measures may order suspension of operation of an act and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. Where appropriate, the judge hearing such an application must also weigh the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑612/15 P‑R, EU:C:2016:142, paragraph 21 and the case-law cited).

In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).

Having regard to the documents in the case file, the President of the Court considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.

In the circumstances of the present case and without it being necessary to rule on the admissibility of the present application for interim measures, lodged on the basis of Article 299 TFEU, it is necessary first to examine whether the condition relating to urgency is satisfied.

The condition relating to urgency

In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim measures is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU Courts (order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P‑R, EU:C:2016:21, paragraph 27).

For the purpose of attaining that objective, urgency must generally be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim measures. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P‑R, EU:C:2016:21, paragraph 27 and the case-law cited).

In addition, according to well-established case-law, there is urgency only if the serious and irreparable damage feared by the party seeking the interim measures is so imminent that its occurrence can be foreseen with a sufficient degree of probability. That party continues, in any event, to be required to prove the facts that form the basis of its claim that such damage is likely, it being clear that purely hypothetical damage, based on future and uncertain events, cannot justify the granting of interim measures (see order of 11 March 2020, Aceto Agricultural Chemicals v Commission, T‑612/19 R, not published, EU:T:2020:102, paragraph 31 and the case-law cited).

Moreover, in accordance with the second sentence of Article 156(4) of the Rules of Procedure, an application for interim measures ‘shall contain all the evidence and offers of evidence available to justify the grant of interim measures’.

Thus, an application for interim measures must, of itself, enable the defendant to prepare its observations and the judge hearing the application to rule on it, if necessary, without any supporting information, since the essential elements of fact and law on which the application is based must be found in the actual text of that application (see order of 6 September 2016, Inclusion Alliance for Europe v Commission, C‑378/16 P‑R, not published, EU:C:2016:668, paragraph 17 and the case-law cited).

It is also settled case-law that, in order to determine whether all the conditions referred to in paragraphs 39, 40 and 42 above are fulfilled, the judge hearing the application for interim measures must have concrete and precise indications, supported by detailed, certified documentary evidence, which shows the situation in which the party seeking the interim measures finds itself and enables the probable consequences, should the measures sought not be granted, to be assessed. It follows that that party, in particular when it relies on the occurrence of financial damage, must produce, with supporting documentation, an accurate overall picture of its financial situation (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, not published, EU:T:2018:407, paragraph 27 and the case-law cited).

While the application for interim measures may be supplemented on specific points by references to documents annexed to it, those documents cannot compensate for the lack of essential information in that application. It is not for the judge hearing the application for interim measures to seek, in the stead of the party concerned, those matters contained in the annexes or in the main application lodged in the main proceedings which could support the application for interim measures. For such an obligation to be imposed on the judge hearing the application for those measures would, moreover, render ineffective Article 156(5) of the Rules of Procedure, which requires the application for interim measures to be made by a separate document (see, to that effect, order of 20 June 2014, Wilders v Parliament and Council, T‑410/14 R, not published, EU:T:2014:564, paragraph 16 and the case-law cited).

It is in the light of those criteria that it should be examined whether the applicant has managed to demonstrate urgency.

In the present case, the applicant alleges that it will face serious financial difficulties if the Commission were to decide to implement the contested decision. In addition, the applicant claims, in essence, that, in order adequately to be able to defend itself, it asked the Commission to provide it with all the documents in the file concerning it, under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), in particular the auditor’s reports in full and the information shared by the project coordinator, the Advisory Committee and the administrator.

47The Commission disputes the applicant’s arguments.

48It must be noted that the nature of the alleged damage, namely the recovery of the principal amount of the claim, together with default interest, is purely financial. Damage of a pecuniary nature cannot, save in exceptional circumstances, be regarded as irreparable or even as being reparable only with difficulty, since financial compensation for that damage can normally be obtained subsequently. In the event of such damage, the interim measure sought is justified if it appears that, without that measure, the applicant would be in a position that could imperil its existence before final decision in the main action (order of 21 January 2019, Agrochem-Maks v Commission, T‑574/18 R, EU:T:2019:25, paragraph 33 and the case-law cited).

49It is also clear from the case-law that it is for the party seeking interim measures from the Judge hearing the application for interim measures to provide essential evidence enabling the Judge to establish a true overall picture of its financial situation and that of the shareholders controlling it. That information must, on the one hand, be specific and precise and, on the other, be supported by detailed and certified documentary evidence (see, to that effect, order of 20 April 2012, Fapricela v Commission, C‑507/11 P(R), not published, EU:C:2012:231, paragraph 35 and the case-law cited).

50In the present case, the applicant merely asserts that implementation of the Commission’s decision would expose it to serious financial difficulties without adducing, in support of its claims, evidence to support the existence of serious and irreparable damage within the meaning of the case-law cited in paragraphs 39 and 40 above.

51In particular, it is not apparent either from the content of the application for interim measures or from the annexes thereto, to which, it must be noted, no reference has been made, that payment of the sums concerned would give rise to a situation which could jeopardise the applicant’s existence before the adoption of the decision closing the main proceedings.

52Moreover, a mere reference to the ‘disproportion’ between the applicant’s interest, as a ‘small company’, and that of the Commission cannot suffice for the alleged harm to be regarded as serious and irreparable.

53Accordingly, the Judge hearing the application for interim measures is not in a position to form an accurate and comprehensive picture of the applicant’s financial situation, within the meaning of the case-law cited in paragraph 48 above, such that the condition relating to urgency is not satisfied.

54That conclusion cannot be called into question by the applicant’s arguments that it was not in a position properly to defend itself before the adoption of the contested decision on the ground that it did not have the Commission’s complete file.

55In that regard, the fact, as the case may be, that the applicant has submitted an application for disclosure of ‘any document in the file’ of the Commission under Regulation No 1049/2001 does not allow the Judge hearing the application for interim measures to regard the condition relating to urgency as having been satisfied. First, neither the present application for interim measures nor the main action concerns a decision which has already been taken by the Commission for the purposes of Regulation No 1049/2001. The powers of the Judge hearing an application for interim measures are limited to reviewing administrative acts which the Commission has already adopted, but do not extend to the assessment of matters on which the Commission has not yet taken a decision (order of 16 November 2012, Akzo Nobel and Others v Commission, T‑345/12 R, EU:T:2012:605, paragraph 17). Second, the alleged infringement of the rights of the defence in the administrative procedure which led to the adoption of the contested decision cannot compensate for the lack of evidence demonstrating the existence of serious and irreparable harm which would be suffered by the applicant as a result of the implementation of the contested decision.

56Consequently, since the condition relating to urgency has not been satisfied, the application for interim measures must be rejected, without there being any need to examine the conditions of a prima facie case and the balance of interests.

57By virtue of Article 158(5) of the Rules of Procedure, it is appropriate to reserve the costs.

On those grounds,

hereby orders:

1.The application for interim measures is rejected.

2.The costs are reserved.

Luxembourg, 27 November 2020.

Registrar

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Language of the case: English.