15 February 2022 (*)

(Action for annulment – Financial provisions – EU programme on promoting safer use of the internet – Failure to comply with procedural requirements – Inadmissibility)

In Case T‑295/21,

eSlovensko,

established in Lučenec (Slovakia), represented by B. Fridrich, lawyer,

applicant,

European Commission,

represented by J. Estrada de Solà and S. Romoli, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU seeking annulment of Commission Decision Ares(2021) 1955613 of 18 March 2021 concerning a recovery order for project SI‑2010‑SIC‑1231002 (‘Safer Internet SK SIC’),

THE GENERAL COURT (Fifth Chamber),

composed of D. Spielmann, President, U. Öberg (Rapporteur) and I. Gâlea, Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

The applicant, eSlovensko, is a Slovak association. On 12 September 2011, the applicant and the European Commission signed grant agreement SI‑2010‑SIC‑1231002 (‘the grant agreement’) for the implementation of the project ‘Safer Internet SK SIC’ (‘the project at issue’), for a period of 20 months.

On 23 July 2012 and 10 August 2015, respectively, the Commission launched two audits concerning three projects in which the applicant participated, including the project at issue. The first audit in respect of that project covered the period from 1 May 2011 to 30 April 2012 and the second, in respect of that same project, covered the period from 1 May to 31 December 2012. According to the Commission, the audits made it possible to disallow personnel and subcontracting costs and to identify adjustments for travel and subsistence costs and other specific costs in each of the projects. On the basis of both audit findings, the Commission decided, in connection with the project at issue, to recover a total amount of EUR 154 863.79, including EUR 26 247.84 in the context of the second audit (‘the second recovery order’).

By Decision Ares(2017) 3107844 of 21 June 2017, the Commission notified the applicant of its registration and of that of its chief executive officer, Mr Miroslav Drobny, in the early detection and exclusion system database established under Article 108 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 [European] Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1) and of its exclusion from participation in EU procurement procedures and grant award procedures for a period of two years starting from the date of notification. That decision was the subject of an action, which was dismissed as inadmissible by order of 18 September 2018, eSlovensko v Commission (T‑664/17, not published, EU:T:2018:559).

After a number of exchanges, the Commission issued, in connection with the project at issue, several debit notes, of an amount of EUR 128 515.95 in the context of the first audit 12‑INFS‑02 and an amount of EUR 26 247.84 in the context of the second audit 15‑NR01‑044. Regarding the second recovery order, the Commission, by letter Ares(2021) 1955613 of 18 March 2021 (‘the contested decision’), notified the applicant of debit note No 3242103518 (‘the debit note of 18 March 2021’) concerning the project at issue, for an amount of EUR 26 247.84.

Procedure and forms of order sought

By application lodged at the Court Registry on 18 May 2021, the applicant brought the present action.

In the application, the applicant claims that the Court should:

–annul the contested decision;

–suspend the operation of the contested decision;

–refer the case back to the Commission for a decision on the financial implications and the eligibility of the expenditure at issue;

–order the Commission to pay the costs.

By separate document lodged at the Court Registry on 17 September 2021, the Commission raised a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court. It contends that the Court should:

–dismiss the action as inadmissible;

–order the applicant to pay the costs.

The applicant lodged its observations on the plea of inadmissibility on 8 November 2021. In those observations, it claims, in essence, that the Court should:

–dismiss the plea of inadmissibility;

–order the opening of the oral part of the procedure and concentrate on the substance.

Law

Under Article 130(1) and (7) of the Rules of Procedure, if the defendant so requests, the Court may give a ruling on inadmissibility without going to the substance of the case.

In this case, as the Commission has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the file, has decided to rule on that application without taking further steps in the proceedings.

The Commission argues, with regard to the head of claim seeking annulment of the contested decision, that the application has shortcomings and lacks precision with regard to the subject matter of the dispute, the pleas in law and arguments relied on and the form of order sought by the applicant. That lack of precision with regard to the subject matter of the dispute prevents the Commission from preparing its defence and the Court from ruling on the action and exercising its power of review. Therefore, by virtue of the requirements of Article 76(d) and (e) of the Rules of Procedure, the application is inadmissible. In addition, in so far as the action concerns the second recovery order and the debit note of 18 March 2021, such an action under Article 263 TFEU is, in the Commission’s view, inadmissible.

The plea of inadmissibility under Article 76(d) and (e) of the Rules of Procedure

In support of the application for annulment of the contested decision, on the one hand, the applicant appears to raise, in essence, three pleas in law, under the heading ‘III. FORM OF ORDER SOUGHT’. First, it submits that the contested decision should be annulled for infringement of essential procedural requirements and, more specifically, infringement of the rights of the defence and of the right to good administration. Second, it invokes ‘infringement of the Treaty provisions’ by its failure to observe the principles of proportionality and legal certainty. Third, it claims that the contested decision is vitiated by a misuse of powers by the Commission.

On the other hand, the applicant has, under the heading ‘IV. PLEAS IN LAW AND MAIN ARGUMENTS, put forward three ‘pleas in law’, the first of which concerns the application for annulment. That first ‘plea in law’ nevertheless consists largely in a summary of the content of Article 263 TFEU and of judgments of the Court of Justice in that regard.

Furthermore, a significant part of the application seeks to demonstrate, in a dispersed manner, that the findings of the audit were incorrect and to maintain that the Commission failed to take account of its observations.

As regards the requirements under Article 76(d) and (e) of the Rules of Procedure, it should be borne in mind that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the proceedings before the General Court in accordance with the first paragraph of Article 53 of that statute and Article 76(d) and (e) of the Rules of Procedure, an application must state, inter alia, the subject matter of the proceedings, a summary of the pleas in law and arguments relied on and the form of order sought by the applicant.

It is apparent from the case-law that that summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to exercise its review. It follows that it is necessary that the basic legal and factual particulars, on which the action is based, be indicated coherently and intelligibly in the application itself. The application must, accordingly, specify the nature of the ground on which the action is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (see orders of 27 March 2017, Frank v Commission, T‑603/15, not published, EU:T:2017:228, paragraph 38 and the case-law cited, and of 18 September 2018, eSlovensko v Commission, T‑664/17, not published, EU:T:2018:559, paragraph 29 and the case-law cited).

Thus, the applicant is required to set out in a sufficiently systematic manner the arguments relating to each plea in law on which it relies, and the General Court is not obliged, because of the lack of structure of the application or lack of rigour on the part of the applicant, to reconstruct the legal structure intended to support a plea by bringing together various diffuse elements of the application. The risk would be to reconstruct that plea by giving it a scope which it did not have in the mind of that party. To decide otherwise would be contrary both to the principle of the sound administration of justice and the principle that the subject matter of an action is delimited by the parties and to the defendant’s rights of defence (see order of 6 September 2009, Romańska v Frontex, T‑212/18, not published, EU:T:2019:581, paragraph 42).

In the present case, it must be held that those requirements have not been met.

As regards the requirement of clarity of the pleas in law and arguments relied on, the applicant, in the part of the application devoted to the arguments in that regard, under the heading ‘IV. PLEAS IN LAW AND MAIN ARGUMENTS’, merely cites excerpts from Article 263 TFEU and certain judgments delivered by the Court of Justice concerning inter alia the scope of the review carried out by the General Court pursuant to that article. Those case-law citations are in no way related to the facts at issue or to the contested decision.

Those references to alleged infringements, made without any justification related to the contested decision, do not suffice to satisfy the requirements of clarity and precision of the pleas in law put forward, such as those laid down in Article 76(d) of the Rules of Procedure.

Even if it were possible, on the basis of the line of argument set out in the part headed ‘III. FORM OF ORDER SOUGHT’, to understand vaguely that the applicant is claiming that the Commission was not entitled to carry out the second audit, that it had not taken account of the evidence which it had provided and that the contested decision was insufficiently reasoned, it must be held that that part of the application does not meet the requirements of clarity and precision laid down in Article 76(d) and (e) of the Rules of Procedure.

That party’s arguments, presented in a dispersed manner and unrelated to the subtitles used or to the judgments of the Court of Justice and the General Court relied on, lack structure and rigour to such a degree that it is impossible for the Commission to reconstruct the legal structure intended to support them. For instance, the factual assertions set out in paragraphs 14 to 18 of the application concerning the alleged infringement of the principle of non-retroactivity by the Commission and in paragraphs 19 and 20 as regards the alleged misuse of powers are not linked to the relevant legal rules prescribed for their legal assessment and that of the alleged infringements. In particular, as regards the complaint based on the principle of non-retroactivity, the applicant does not explain clearly and precisely how ‘the [Commission’s] retroactive approach in the whole audit’ infringed that principle. The same conclusion applies as regards the complaint alleging misuse of powers, since the applicant’s arguments that ‘there is visible continuation in behaviour and action’ on the part of the Commission are confused and lack clarity. In short, the arguments put forward by the applicant do not enable the Commission to prepare its defence or the Court to exercise its review.

Nor, therefore, do the arguments put forward in that part of the application suffice to meet the requirements of clarity and precision of the pleas in law put forward, such as are laid down in Article 76(d) and (e) of the Rules of Procedure.

As regards the subject matter of the action, it should be borne in mind that the applicant, under the heading ‘Subject matter’, has sought the annulment of the decision ‘Recovery Order in the project SI‑2010‑SIC‑l231002 Safer Internet SK SIC …, Commission decision and Recovery Order … ARES(2017) 3107844‑21/06/2017 … delivered … on 18 March 2021’ (emphasis added in the application).

However, that reference number relates to the Commission decision of 21 June 2017 concerning the registration in the early detection and exclusion system database referred to in paragraph 3 above, a decision which the applicant does not mention in the remainder of the application and which was also the subject of the order of 18 September 2018, eSlovensko v Commission (T‑664/17, not published, EU:T:2018:559). Furthermore, in so far as the action concerns that registration and exclusion decision and is based on Article 263 TFEU, it is sufficient to find that it is inadmissible on account of the expiry of the time limit for bringing an action against it.

In addition, the applicant, under the heading ‘III. FORMS OF ORDER SOUGHT’, has sought the annulment of ‘Commission Decision Ares(2021) 1955613’, the reference number of which corresponds to the debit note of 18 March 2021, for an amount of EUR 26 247.84.

The plea of inadmissibility under Article 263 TFEU

In the event that the action under Article 263 TFEU relates to the second recovery order and the debit note of 18 March 2021, it must be held that it is settled case-law that such an action is inadmissible.

According to the case-law, where there is a contract between the applicant and one of the EU institutions, an action may be brought before the EU judicature under Article 263 TFEU only where the contested measure aims to produce binding legal effects falling outside of the contractual relationship between the parties and which involve the exercise of the prerogatives of a public authority conferred on the contracting institution acting in its capacity as an administrative authority (see judgment of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 65 and the case-law cited).

Furthermore, the Court of Justice has stated that a debit note, the purpose of which is the recovery of a debt under the provisions of the grant agreement concerned, must be understood as a formal demand for payment setting out the maturity date and also the payment terms and cannot be equated to an enforcement order for the purposes of Article 299 TFEU (see, to that effect, judgments of 24 October 2014, Technische Universität Dresden v Commission, T‑29/11, EU:T:2014:912, paragraphs 37 and 38; of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 23; and of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 66).

Accordingly, the second recovery order and the debit note of 18 March 2021 cannot be regarded as producing binding legal effects arising from the exercise of the prerogatives of a public authority, but must, on the contrary, be regarded as inseparable from the contractual relations between the applicant and the Commission.

In any event, the present action, brought under Article 263 TFEU, cannot be reclassified as an action brought under Article 272 TFEU. According to the case-law, when an action for annulment or an action for damages is brought before the Court, although the dispute is, in fact, contractual in nature, the Court may, in the interest of procedural economy, reclassify the action if the conditions for such reclassification are met. It follows that the reclassification of the action is possible as long as the express intention of the applicant does not preclude it and at least one plea alleging infringement of the rules governing the contractual relationship in question is put forward in the application in accordance with the provisions of Article 76 of the Rules of Procedure. Those two conditions are cumulative (judgment of 10 October 2019, Help – Hilfe zur Selbsthilfe v Commission

, T‑335/17, not published, EU:T:2019:736, paragraphs 78 and 80, and order of 24 October 2019 United Kingdom v Commission, T‑188/19, not published, EU:T:2019:772, paragraphs 28 and 30). In the present case, however, the applicant has not put forward any plea or argument alleging infringement of the grant agreement. Furthermore, it expressly argues that the contested decision was adopted by the Commission in the exercise of its prerogatives as a public authority. Accordingly, the present action cannot be reclassified as an action brought under Article 272 TFEU.

The head of claim seeking to suspend the operation of the contested decision and to refer the case back to the Commission

In the application, the applicant requests the suspension of the operation of the contested decision on the ground that the immediate enforceability of the sum claimed by the Commission could compromise the survival of the organisation.

The Commission contends that that claim is inadmissible on the ground that it was not made by separate document.

It should be noted that, according to Article 156(5) of the Rules of Procedure, an application to suspend the operation of a measure must be made by separate document.

In the present case, the request was made in the application.

It follows that it is inadmissible.

Last, the applicant requests that the case be referred back to the Commission for a decision on the financial implications and the eligibility of the expenditure at issue.

The Commission contends that that request is inadmissible.

It should be noted that, by that request, the applicant requests, in essence, the Court to issue a direction to the Commission.

In accordance with settled case-law, however, in an action for annulment, the jurisdiction of the Courts of the European Union is limited to reviewing the legality of the contested measure and the Court may not, in the exercise of its jurisdiction, issue directions to institutions of the European Union (see order of 26 October 1995, Pevasa and Inpesca v Commission, C‑199/94 P and C‑200/94 P, EU:C:1995:360, paragraph 24 and the case-law cited, and judgment of 17 June 2010, CEVA v Commission, T‑428/07 and T‑455/07, EU:T:2010:240, paragraph 56 and the case-law cited). It is for the institution concerned to take, under Article 266 TFEU, the measures necessary to comply with any judgment ordering annulment (see order of 12 March 2014, PAN Europe v Commission, T‑192/12, not published, EU:T:2014:152, paragraph 15 and the case-law cited).

Accordingly, that claim is inadmissible.

It follows from all the foregoing that the action must be dismissed as inadmissible.

Costs

Under Article 134(1) 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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

hereby orders:

1.The action is dismissed as inadmissible.

2.eSlovensko shall bear its own costs and pay those incurred by the European Commission.

Luxembourg, 15 February 2022.

Registrar

President

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Language of the case: English.