delivered on 23 January 2018 (1)

Case C‑635/16 P

Spliethoff’s Bevrachtingskantoor BV

(Appeal — Action for annulment — Admissibility — Determination of the subject matter of the action — Innovation and Networks Executive Agency (INEA) — EU programme for the Connecting Europe Facility (CEF) — Being informed of a decision rejecting a proposal submitted in response to the call for proposals for the CEF — Effective judicial protection )

1.The present case is a prime example of the problems that can beset those seeking judicial protection when the European Commission uses an agency — in the present case, the Innovation and Networks Executive Agency (‘INEA’) — to perform its tasks.

2.This is true in particular where, as in the present case, there is a lack of communication: between the INEA and the Commission and the party concerned, and probably between the Commission and INEA too.

3.Following the appellant’s submission of a comprehensive application for financial assistance in the order of EUR 20 million, neither the Commission nor INEA informed the appellant separately of the decision implicitly rejecting that application. That Commission decision, establishing the list of selected proposals, was adopted on 31 July 2015 but was not posted online until three months later.

4.Instead, on 17 July 2015, that is to say two weeks before the date of the Commission decision, INEA sent the appellant an email informing it that its proposal had not been included in the provisional list of projects for which financial assistance would be awarded and setting out the reasons for this. INEA included in that message, as the Commission itself acknowledges with regret, a misleading note on available remedies which gave the impression that the Commission had already adopted its decision and that the time limit for challenging that decision had started to run.

5.That email clearly prompted the appellant to bring an action and also gave rise to some confusion on its part, inasmuch as the claims in the application are directed against ‘the decision of the Commission of 17 July 2015’ (that is to say, the date of the email) and the identification of the contested act is not consistent in the application. The Commission raised an objection of inadmissibility against that action. By order of 11 October 2016, (2) the General Court, without detailed consideration of the subject matter of the action, held the action to be directed against the email and upheld the Commission’s objection of inadmissibility; holding that the Commission was not the author of the contested act and the contested act was only provisional in nature.

6.The present appeal is directed against that order of the General Court. It gives the Court of Justice the opportunity to underline the importance of a useful interpretation of the claims made in the application in order to ensure effective legal protection. This is true not least in the light of the fact that, in the present case, it was precisely a lack of communication that ‘put [the appellant] on the wrong track’.

7.It should also be noted that the appellant has since brought before the General Court a further action reformulating its claims. In that action, it seeks the annulment of the ‘Commission Implementing Decision … of 31 July 2015 establishing the list of proposals selected …’. (3) In those proceedings too, the Commission has raised an objection of inadmissibility, this time on the ground that the action had not been brought in good time. Even if this proves not to be a factor relevant to the assessment of the present appeal, it nonetheless further highlights the importance of a useful interpretation of the claims made in the application in order to ensure effective legal protection. That would in the present case have made further legal action unnecessary and would have served to prevent the occurrence of a situation in which, despite the fact that two actions have been brought, the substantive legality of the Commission’s acts may not be subject to judicial review at all.

II. Legal framework

8.Council Regulation (EC) No 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (4) provides the legal framework for the setting-up and mode of operation of executive agencies. Article 3(1) of that regulation enables the Commission to set up an executive agency with a view to entrusting it with certain tasks relating to the management of one or more Community programmes. Under Article 4(2), executive agencies are to have legal personality. Article 6 sets out the tasks which the Commission may entrust to executive agencies. Those requiring discretionary powers in translating political choices into action are excluded. The details relating to the performance of the tasks so entrusted are to be defined in an instrument of delegation.

9.On the basis of Regulation (EC) No 58/2003, INEA was set up by Commission Implementing Decision 2013/801/EU of 23 December 2013. (5) As successor to the Trans-European Transport Network Executive Agency, INEA took over responsibility, in particular, for managing certain strands of the EU programme for the Connecting Europe Facility (‘CEF’).

10.The objective of the EU’s CEF programme is to accelerate investment in trans-European networks. The funds available for that programme in the field of transport amount to EUR 22 billion for the period 2014-2020. (6)

11.Article 18 of Regulation (EU) No 1316/2013 of the European Parliament and of the Council of 11 December 2013 establishing the Connecting Europe Facility, amending Regulation (EU) No 913/2010 and repealing Regulations (EC) No 680/2007 and (EC) No 67/2010 (7) provides as follows:

‘Granting of Union financial assistance

12.Article 25(1) of Regulation (EU) No 1316/2013 provides that the Commission is to be assisted by a CEF Coordination Committee.

13.With regard to the examination procedure, Article 25(2) of Regulation (EU) No 1316/2013 refers to Article 5 of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, (8) which provides:

‘1. Where the examination procedure applies, the committee shall deliver its opinion …

14.Recital 11 of Regulation (EU) No 182/2011 emphasises that the examination procedure is intended to ensure ‘that implementing acts cannot be adopted by the Commission if they are not in accordance with the opinion of the committee, except in very exceptional circumstances …’.

15.Commission Decision C(2013) 9235 final of 23 December 2013 delegating powers to the Innovation and Networks Executive Agency with a view to the performance of tasks linked to the implementation of Union programmes in the field of transport, energy and telecommunications infrastructure and in the field of transport and energy research and innovation comprising, in particular, implementation of appropriations entered in the general budget of the Union sets out the tasks of the Commission and INEA respectively.

16.Article 5 of that decision, headed ‘Tasks reserved to the Commission’, provides in paragraph 2 that INEA is not to perform, in particular, the following tasks:

‘… adopt grant decisions under the Connecting Europe Facility and any amendments to such decisions …’.

Annex I(B) to that decision provides that the following tasks are to be delegated to INEA:

…

Manage the operations and procedures leading to the adoption of Commission award decisions and Commission grant decisions and to the conclusion of grant agreements and manage the ensuing decisions and agreements: —

…

inform rejected and successful applicants of Commission award Decisions …’.

III. Background to the appeal proceedings

17.The appellant, Spliethoff’s Bevrachtingskantoor BV (‘the appellant’), is an undertaking established in the Netherlands which operates a fleet of 50 cargo ships.

18.On 11 September 2014, INEA called for proposals in the context of the CEF in the field of transport. Proposals were to prioritise the promotion of environmentally-friendly measures for the development of ‘motorways of the sea’. (9)

19.On 25 February 2015, the appellant submitted a proposal. This consisted, in particular, in fitting 25 of its ships operating on the motorways of the sea in the North Sea and the Baltic Sea with emission control systems.

20.Proposals were selected in a two-stage procedure comprising, as the first stage, external selection by independent experts and, as the second stage, internal selection under the direction of the competent Commission Directorate-General. The list of proposals selected under that procedure was then presented to the CEF Coordination Committee provided for in Article 25 of Regulation (EU) No 1316/2013, which delivered a positive opinion.

21.On 17 July 2015, the appellant received from INEA an email (‘the email of 17 July 2015’) worded as follows:

‘… the evaluation of the eligible proposals has taken place and the Commission has drawn up a list of proposals selected for receiving Union financial assistance. On 10 July 2015, the CEF Coordination Committee of Member States’ representatives gave a positive opinion on this draft list.

We regret to inform you that your application has not been successful in the above procedure, as explained below:

[a list of reasons follows]

Procedural steps for the adoption by the European Commission of a decision on the selection and award of grants … [are] currently ongoing. In the unlikely case that the adoption of this decision results in changes in relation to your proposal, you will be informed separately by e-mail.

…

Any [request, answer or complaint] will have neither the purpose nor the effect of extending the time limit for lodging an action for annulment of the Commission’s decision notified by this message, which must be done within two months of notification of this message. [This is followed by a note to the effect that such actions fall within the jurisdiction of the General Court of the European Union, the address for which is provided]. …’

22.On 31 July 2015, the Commission adopted Commission Implementing Decision C(2015) 5274 final establishing the list of proposals selected for receiving EU financial assistance in the field of Connecting Europe Facility (CEF)-Transport sector following the calls for proposals launched on 11 September 2014 based on the Multi-Annual Work Programme (‘the implementing decision of 31 July 2015’). The sole article of that decision provides:

‘The list of projects of common interest in the field of Connecting Europe Facility (CEF) selected for receiving EU financial assistance, the estimated total eligible costs of the actions, the percentage of the financial assistance out of the estimated total eligible costs and the respective maximum amounts of the financial assistance, as laid down in the Annex, are approved.’

23.The appellant’s project is not included in the list of those selected.

24.The implementing decision of 31 July 2015 was published on the website of the Commission’s DG MOVE on 12 October 2015 and on INEA’s website on 14 October 2015.

25.On 25 September 2015, the appellant brought an action before the General Court seeking the annulment of the ‘decision of the Commission of 17 July 2015 on the rejection of [its] proposal’. That action was entered in the Registry of the General Court as Case T‑564/15.

26.The appellant relied on two pleas in law. First, it alleged that the Commission had made a manifest error of assessment in the consideration of its proposal. Secondly, it claimed that the Commission had infringed the principle of equal treatment because, although it did not select the appellant’s proposal, it selected other, similar proposals without any reason for that difference in treatment being apparent.

27.On 18 December 2015, the Commission, by separate document, raised an objection of inadmissibility. That document was served on the appellant on 12 February 2016.

28.The Commission based its objection of inadmissibility on two arguments. First, the contested email of 17 July 2015 was a preparatory measure and not therefore a challengeable act. Secondly, the action could not be directed against the Commission, since the author of the contested measure was not the Commission but INEA.

29.In its observations of 21 March 2016 on the objection of inadmissibility, the appellant argued that the email of 17 July 2015 had informed it of the Commission’s final decision, to reject its proposal, or could at least have been so interpreted by it. The email of 17 July 2015, although sent by INEA, had served only to inform it of a Commission decision, that decision being challenged by the appellant by means of its action. Moreover, its action was in any event to be construed as also including the implementing decision of 31 July 2015. The appellant therefore contended that the Commission’s objection of inadmissibility should be rejected.

30.In the order it made in the course of the written procedure, the General Court upheld the Commission’s objection of inadmissibility and accordingly dismissed the action as being inadmissible (‘the order under appeal’). (10)

31.In paragraph 9 of the order under appeal, the General Court describes the appellant’s claims as being directed against the ‘e-mail of 17 July 2015’. On the basis of that understanding of the claims made in the application, the General Court concludes that the action directed against the Commission is inadmissible because the email of 17 July 2015 originated not from the Commission but from INEA. The General Court held that the action was inadmissible for the further reason that it was not directed against a final decision, there being no such decision until the implementing decision of 31 July 2015. Neither, the General Court concluded, could the action be retrospectively extended so as to include the implementing decision of 31 July 2015.

By document of 8 December 2016, the appellant lodged an appeal against the order under appeal and claims that the Court should:

set aside the order under appeal;

refer the case back to the General Court; and

order the Commission to pay the costs of the proceedings, including the costs before the General Court.

By its document of 16 February 2017, the Commission contends that the Court should:

–dismiss the appeal; and

–order the appellant to pay the costs of the proceedings.

The appeal was examined before the Court of Justice on the basis of the written submissions.

The appellant relies on three grounds of appeal in support of its appeal. First, the General Court committed an error of law in finding the action to be inadmissible because it was directed against the Commission, which was not the author of the contested act. Secondly, the General Court committed a further error of law in finding the action to be inadmissible because the contested act did not constitute a final decision. Thirdly, the General Court committed an error of law in refusing to construe the action for annulment as including the decision of 31 July 2015.

I propose to assess the first and third grounds of appeal together and to conclude that the action was directed not against INEA’s email but against the Commission’s implementing decision of 31 July 2015. On that basis, the order under appeal must be set aside. The second ground of appeal is, therefore, no longer relevant. I shall look first, however, at the Commission’s objections to the admissibility of the appeal.

The Commission submits that the appeal is inadmissible in its entirety. The appeal reiterates the arguments put forward at first instance, introduces new elements of fact and seeks a new assessment by the Court of Justice.

I am not convinced by that argument.

According to settled case-law, it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the decision of the General Court under appeal and the legal arguments specifically advanced in support of the appeal. An appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly rejected by the General Court, does not satisfy the requirement to state reasons under those provisions.

However, provided that the appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be argued again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose.

Contrary to what the Commission contends, it cannot be concluded in the present case that the appellant generally confines itself to simply repeating the arguments already put forward at first instance, without directing arguments against a substantial part of the reasoning set out in the order under appeal.

In so far as the Commission argues that the appellant introduces new facts or arguments, or that doubts with respect to the admissibility of the appellant’s submissions should exist for other reasons, I shall return to these points, where appropriate, when examining the individual grounds of appeal.

In the first part of the first ground of appeal, the appellant claims, in essence, that the General Court erred in considering INEA to be the author of the contested decision. For that reason, the General Court considered the action, which was directed against the Commission, to have been directed against the wrong defendant. In the second part of that ground of appeal, the appellant sets out reasons why, even if INEA is to be regarded as the author of the contested act, that act is in any event attributable to the Commission and the action is therefore directed against the Commission and, as such, admissible. By its third ground of appeal, the appellant submits that the General Court was wrong to refuse to construe its action as (also) being directed against the implementing decision of 31 July 2015.

The Commission takes issue with the foregoing. It contends that the General Court was right to dismiss the action directed against the Commission as being inadmissible. Moreover, the General Court was right to refuse to extend the subject matter of the action so as to include the Commission implementing decision of 31 July 2015. The Commission further contends that the appellant’s line of argument, in so far as it pleads excusable error, is new and therefore inadmissible. Equally inadmissible is the appellant’s reference in its appeal to a meeting with the Commission on 20 October 2015, which it did not mention at first instance.

The purport of the first and third grounds of appeal is, in essence, on the one hand, that the General Court was wrong to assume that the action was directed against INEA and, on the other hand, that the General Court was wrong to consider the action not to be directed against the implementing decision of 31 July 2015.

I can see nothing which might specifically support the inadmissibility of the first and third grounds of appeal. In particular, the grounds of inadmissibility cited by the Commission are unconvincing. Whether it is permissible for the appellant, on appeal, to rely on a meeting with the Commission or an excusable error is irrelevant, since the grounds of appeal must be upheld in any case.

The crucial point, after all, is that in its Order the General Court misconstrued the claims made in the application. It wrongly assumed that the act contested by the appellant was the email of 17 July 2015.

On that basis, the General Court wrongly concluded that the action was inadmissible because it was directed against the Commission and not against INEA as the author of the email of 17 July 2015. For that reason, the General Court also wrongly assumed that the subject matter of the action would have to be modified in order to include the implementing decision of 31 July 2015, such a modification being impermissible in the present case, pursuant to Article 86 of the Rules of Procedure of the General Court.

On the basis of its own case-law to the effect that the contested measure can be identified by implication from the statements and the whole argument set out in the application, however, the General Court should have recognised that the subject matter of the action, which was expressly directed against the Commission, was not the email of 17 July 2015 as such, but the Commission decision of 31 July 2015, by which the appellant’s proposal was rejected in the course of the selection procedure.

It is true that the appellant is not always consistent in its description of the contested act in its application. It thus defines the contested act first as the ‘decision of the Commission of 17 July 2015 on the rejection of [its] proposal … (the Decision)’. The application later states, however, that the Commission sent the appellant an email on 17 July 2015, the appellant defining that ‘e-mail of 17 July 2015’ as the ‘Decision’. In the grounds of its application too, the appellant mentions the ‘Decision’ and challenges the reasons on which it is based with reference to the text of the email of 17 July 2015. In setting out the claims made in its application, the appellant refers simply to the ‘Decision’ that is to be annulled, including for ‘lack of or inadequate reasoning’.

51.In its rebuttal of the Commission’s objection of inadmissibility, however, the appellant made it clear that, in its view, INEA’s email of 17 July 2015 was to be construed simply as the communication of an adverse Commission decision and that its action was expressly directed not against INEA but against the Commission as author of the adverse decision.

52.Against that background, defined by the fact that, although the appellant refers to the contested act in different ways, it gives clear and precise expression to its understanding of the subject matter of the action in its written observations on the objection of inadmissibility, the General Court could not assume without further consideration that the subject matter of the action was the email of 17 July 2015.

53.That is all the more so given that, in paragraphs 18 and 23 [of the order under appeal], the General Court expressly makes the point that the applicant understands its action to be directed not against an act of INEA but against an act of the Commission, the former merely giving notice of the latter. In that context, it must also be noted that, in paragraphs 32 to 36 of the order under appeal, the General Court expressly examines the email of 17 July 2015 and concludes that the Commission decision referred to in it was not yet final. The General Court thus contradicts its interpretation of the subject matter of the action.

54.Finally, the action was expressly directed against the Commission, a fact which, according to the General Court’s own findings, was logical, to the extent that the Commission alone, but not INEA, was authorised to make an award decision in the course of the selection procedure. To this extent, the General Court adopts an interpretation of the subject matter of the action the inevitable effect of which, according to its own findings, is that it is impossible for that action to succeed.

55.Moreover, if the General Court had properly interpreted the claims made in the application, it would have had to recognise that the implementing decision of 31 July 2015 formed part of the subject matter of the action.

56.As is clear from what is stated in point 49, the purpose of the action was to annul the Commission decision rejecting the appellant’s proposal during the selection procedure.

57.Following the prescribed examination procedure, the Commission, acting in accordance with Articles 18 and 25 of Regulation (EU) No 1316/2013, adopted the implementing decision of 31 July 2015, which specifies the projects selected and the amount of financial assistance granted. The appellant’s proposal was not one of the projects selected and was therefore by implication rejected.

58.The fact, in this context, that the appellant referred in its application to a Commission decision of 17 July 2015 — that is to say the date of the email — is immaterial. This does not preclude the implementing decision of 31 July 2015 from being regarded as forming part of the subject matter of the action.

59.It should be recalled here that, at the time when the appellant lodged its application at the General Court, that is to say on 25 September 2015, the appellant was in possession only of the email of 17 July 2015. As the General Court itself acknowledges, the content of that email was however unclear. The appellant had construed that email of 17 July 2015 as informing it of the Commission’s adverse decision.

60.At the time when the action was brought, however, the Commission had long since adopted the implementing decision of 31 July 2015.

61.Contrary to the relevant provisions, that decision had nevertheless not been separately notified to the appellant. In this regard, it is clear from Commission Decision C(2013) 9235 final of 23 December 2013 delegating powers to INEA that the division of tasks between the Commission and INEA is such that the Commission adopts the relevant decision and INEA ensures that that decision is separately notified to the person concerned.

62.Moreover, it is common ground that the implementing decision of 31 July 2015 was not published on the website of the Commission’s DG MOVE until 12 October 2015 or on INEA’s website until 14 October 2015, that is to say not until a few weeks after the action was brought.

63.To this extent, the reference to a Commission decision of 17 July 2015 is simply a misnomer on the part of the appellant which can be fully explained by the circumstances of the case and is not such as to warrant any serious doubt as to the identity of the subject matter challenged by the appellant in its action.

64.For that reason, moreover, an interpretation of the action as including the implementing decision of 31 July 2015 does not adversely affect the Commission’s rights of defence. This is all the more so given that, in its written response to the Commission’s objection of inadmissibility, the appellant expressly stated that the General Court should consider its application to be directed against the implementing decision of 31 July 2015.

65.Finally, the General Court should have recognised that the interpretation of the subject matter of the action expressly requested by the appellant was also the only useful interpretation.

66.As noted not least in point 54 above, the General Court’s own findings show that an action seeking the annulment of the ‘e-mail of 17 July 2015’ could not succeed. Moreover, it follows at least implicitly from paragraph 35 of the order under appeal that the General Court took the view that an action for annulment could be directed only against the implementing decision of 31 July 2015. Here too, it is apparent that the General Court adopts an interpretation of the claims made in the application which, by its own estimation, will necessarily lead to the action’s being dismissed as inadmissible.

67.An interpretation of the application as including the implementing decision of 31 July 2015 is also necessary in order to ensure effective judicial protection.

68.In the light of the foregoing, it must be concluded that, inasmuch as it considered the application to be directed against the email of 17 July 2015 and not against the implementing decision of 31 July 2015, the General Court misconstrued the claims made in the application and erred in dismissing the action as being inadmissible.

69.On that basis, the order under appeal must be set aside, there being no need for an examination of the second part of the first ground of appeal or of the second ground of appeal.

VI. Consequences

ECLI:EU:C:2025:140