27.6.2022

Official Journal of the European Union

C 244/15

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(Case C-161/22 P)

(2022/C 244/18)

Language of the case: French

Parties

Appellant: European Commission (represented by: J. Baquero Cruz, J. Estrada de Solà and B. Araujo Arce, acting as Agents)

Other party to the proceedings: HB

Form of order sought

The appellant claims that the Court of Justice should:

—Set aside the judgment delivered by the General Court on 21 December 2021 (T-796/19), in so far as it dismisses as inadmissible the action for annulment against Commission Decision C(2019) 7318 final of 15 October 2019 (point 1 of the operative part), and orders the Commission to pay the costs, including those relating to the interim proceedings (point 3 of the operative part);

—Refer the case back to the General Court for a decision on the substance;

—Order HB to pay the costs.

Grounds of appeal and main arguments

In support of its appeal, the Commission puts forward three grounds of appeal.

The first ground of appeal alleges an error of legal characterisation, in that the General Court overlooked and rendered ineffective the provisions of the Decision adopted by the Commission using its public powers within a contractual framework, by characterising those measures as contractual and subject to adjudication by the courts with jurisdiction to hear contractual disputes. That incorrect legal characterisation concerns paragraphs 62 to 87 of the judgment under appeal.

The second ground of appeal alleges an incorrect legal characterisation of Article 1 of the Decision (paragraphs 62 to 73 of the judgment) and a distortion of the facts. In its characterisation of Article 1 of the Decision, which establishes HB’s liability for an irregularity in the contract award procedure, the General Court distorted the facts and incorrectly characterised Article 1 as contractual in nature.

The third ground of appeal alleges an incorrect legal characterisation of Articles 2 and 3 of the Decision (paragraphs 74 to 83 of the judgment). In applying the reduction of the price of the contract to EUR 0 and recovering the amounts already paid, the Commission did not act within a contractual framework, but exercised its public powers. The General Court erred in treating those provisions in the same way as if they were the consequences of a contractual annulment on grounds of fraud or vitiated consent.

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