10 September 2020 (*)

(Action for annulment – Grant contracts relating to the projects ‘Your Environment is Your Life’ and ‘Social Safety Net for Poor and Vulnerable Households in Northern Regions of Somalia/Somaliland Phase II’ – Non-eligible costs – Debit notes – Confirmation letter – Challengeable act – Contractual nature of the dispute – Act not open to challenge – Act forming part of a purely contractual framework from which it is inseparable – Inadmissibility)

In Case T‑529/19,

African Development Solutions (ADESO),

established in Nairobi (Kenya), represented by R. Martens, lawyer,

applicant,

European Commission,

represented by J. Estrada de Solà, M. Ilkova and A. Katsimerou, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for annulment of a Commission decision allegedly contained in a letter dated 10 May 2019 concerning the recovery of certain sums paid under grant contracts relating to the projects ‘Your Environment is Your Life’ (FED/2013/313-770) and ‘Social Safety Net for Poor and Vulnerable Households in Northern Regions of Somalia/Somaliland Phase II’ (FED/2013/316-291),

THE GENERAL COURT (First Chamber),

composed of H. Kanninen, President, M. Jaeger (Rapporteur) and M. Stancu, Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

The applicant, African Development Solutions (ADESO), is a non-governmental organisation registered in Nairobi (Kenya) established to participate in humanitarian aid programmes in Africa.

On 13 February 2013, the applicant and the European Commission signed the grant contract FED/2013/313-770 for the implementation of the project ‘Your Environment is Your Life’. On 28 May 2013, the same parties signed the grant contract FED/2013/316-291 for the implementation of the project ‘Social Safety Net for Poor and Vulnerable Households in Northern Regions of Somalia/Somaliland Phase II’.

In accordance with Article 16 of the General Conditions governing those two grant contracts (‘the General Conditions’), a financial audit was requested by the Commission and started on 18 September 2017. A series of meetings between the auditors and the applicant took place until 19 December 2017, followed by email exchanges, in which the applicant requested a meeting to clarify matters, while the auditors proposed a meeting to close the audit procedure.

On 17 May 2018, the applicant received, for comments, the draft audit report in which it was stated that certain sums had to be recovered, either on the ground that the sums were not justified and had to be disallowed, or on the ground that the pre-financing paid was in excess of the costs finally declared. Exchanges between the applicant and the Commission then followed, during which the applicant expressed its objections and its wish for a meeting to be held between the parties, while the Commission took note of its comments but upheld the conclusions contained in the draft audit report.

On 4 December 2018, the Commission communicated the final audit report to the applicant for comments. On 17 December 2018, the applicant raised objections to the conclusions of the audit report.

On 21 December 2018, the Commission informed the applicant that it did not share its objections and sent the applicant two debit notes requesting payment of EUR 3 293 335 for the project ‘Your Environment is Your Life’ and EUR 11 900 for the project ‘Social Safety Net for Poor and Vulnerable Households in Northern Regions of Somalia/Somaliland Phase II’.

On 1 February 2019, the applicant contested the sums claimed and the justifications for claiming such sums and requested a meeting with the Commission.

On 6 February 2019, the applicant received two reminders concerning the recovery of the sums claimed under the two projects, which the applicant contested by letter dated 7 February 2019.

By letter dated 10 May 2019, the Commission replied to the applicant’s objections and confirmed its intention to recover the sums established in the debit notes (‘the contested decision’). It also stated that the audit and recovery procedures had been conducted in a transparent manner and with due respect for the rights of the defence and that the amicable settlement procedure provided for in Article 13(2) of the General Conditions had failed.

In that respect, Article 13(4) of the General Conditions stipulates that ‘in the event of failure of the [amicable settlement procedure], each party to this Contract may submit the dispute … to the Brussels courts where the Contracting Authority is the [Commission]’.

Procedure and forms of order sought

By application lodged at the Court Registry on 22 July 2019, the applicant brought the present action.

By separate document lodged at the Court Registry on 22 October 2019, the Commission raised a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court. The applicant lodged its observations on that plea on 25 February 2020.

The applicant claims, in essence, that the Court should:

–reject the plea of inadmissibility;

–annul the contested decision;

–declare that the claims for reimbursement of the sums claimed under the two projects are unfounded;

–order the Commission to pay the costs.

The Commission contends that the Court should:

–dismiss the action as manifestly inadmissible;

–order the applicant to pay the costs of the present action.

Law

Under Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of admissibility without considering the merits of the case. In the present case, as the Commission has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.

The Commission submits that the contested decision does not constitute a challengeable act under Article 263 TFEU in so far as it falls within the contractual framework.

The applicant seeks the annulment of the contested decision, pursuant to Article 263 TFEU. It unequivocally states in the introduction to its application that the action is based on that provision. This is also apparent from its entire argument in support of the dismissal of the plea of inadmissibility raised by the Commission and, in particular, from paragraphs 16, 20 and 31 of its observations. In addition, in those observations, it calls on the Court to rule ‘more specifically, on the reasoning subsequent to which and on the criteria on the basis of which the [Court] could find to be non-actionable, on the basis of Article 263 TFEU, acts exhibiting the characteristics and having the content of the contested debit note’.

A preliminary point to note is that, according to settled case-law, an action for annulment for the purposes of Article 263 TFEU must be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position (see judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 16 and the case-law cited; of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 31 and the case-law cited; and of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 47).

The objective of an action for annulment is to ensure observance of the law in the interpretation and application of the TFEU and it would therefore be inconsistent with that objective to interpret the conditions under which the action is admissible so restrictively as to limit the availability of this procedure merely to the categories of measures referred to by Article 288 TFEU (see judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 17 and the case-law cited).

Nevertheless, in the context of an action for annulment, that power of interpretation and application of the provisions of the FEU Treaty by the EU judicature does not apply where the applicant’s legal position falls within the contractual relationships whose legal status is governed by the national law agreed to by the contracting parties (judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 18; order of 21 April 2016, Borde and Carbonium v Commission, C‑279/15 P, not published, EU:C:2016:297, paragraph 39; and judgment of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 48).

Were the EU judicature to hold that it had jurisdiction to adjudicate on the annulment of acts falling within purely contractual relationships, not only would it risk rendering Article 272 TFEU – which grants the Courts of the European Union jurisdiction pursuant to an arbitration clause – meaningless, but it would also risk, where the contract does not contain such a clause, extending its jurisdiction beyond the limits laid down by Article 274 TFEU, which specifically gives national courts or tribunals ordinary jurisdiction over disputes to which the European Union is a party (judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 19, and of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 49).

It follows from that case-law that, where there is a contract between the applicant and one of the European Union institutions, an action may be brought before the European Union judicature on the basis of 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 (judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 20, and of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 50).

In that regard, it should be noted that, in the event that an institution, specifically the Commission, chooses to allocate financial contributions by means of a contract, it is bound to stay within that framework. Accordingly, the institution is obliged, in particular, to ensure that it does not use, in the context of relationships with its counterparties, ambiguous formulations which might be understood by the parties to the contract as constituting unilateral decision-making powers going beyond the contractual provisions (judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 21).

It is in the light of those principles that the admissibility of this case should be assessed.

In the present case, the Commission claims, in essence, that the contested decision falls within the contractual framework, in so far as its purpose is to confirm the recovery of a claim based on the provisions of the grant contracts concerned. The applicant submits, in essence, that the contested decision constitutes a challengeable act under Article 263 TFEU, given that, first, it clearly produces binding legal effects vis-à-vis the applicant and, second, the Commission has clearly exercised its prerogatives as a public authority in this case.

In the present case, the decision contested by the applicant is the Commission’s letter dated 10 May 2019 by which the Commission, first, confirms the sums claimed by the debit notes and, consequently, the validity of the audit findings and, second, adopts a position on the legality of the audit and recovery procedures.

Therefore, it is necessary to examine whether, first, the confirmation of recovery of the sums indicated in the debit notes and, second, the Commission’s position on the validity of the audit and recovery procedures constitute a challengeable act under Article 263 TFEU.

The Commission’s confirmation of recovery of the sums claimed by the debit notes

It is appropriate to examine, first, the nature of the legal effects of the contested decision in so far as it confirms recovery of the sums claimed by the debit notes, in order to determine whether it produces binding legal effects outside of the contractual relationship between the parties.

In the present case, it follows mainly from Article 18 of the General Conditions that the Commission is authorised to be reimbursed the sums unduly paid to the beneficiary of the grant contracts and, to that end, to issue recovery orders.

In the present case, the evidence in the case file shows that the purpose of the debit notes is the recovery of debts which the Commission considers to be owed to it, consisting of sums paid to the applicant, which either correspond to costs which the Commission considered to be ineligible under the grant contracts and which it therefore did not accept, or which were higher than the costs finally declared (see paragraph 4 of the present order). Consequently, those notes fall within the framework of the grant contracts between the Commission and the applicant.

In that regard, it is important to note that the contested decision merely confirms the total amount of the sums indicated in the debit notes and the Commission’s intention to recover it.

In the light of that information, it must be held that the Commission remained within the contractual framework and relied, in particular, on Article 18 of the General Conditions. Consequently, it must be inferred that the contested decision does not, as regards the sums claimed, produce binding effects vis-à-vis the applicant which go beyond the contractual relationship between the parties.

Second, it should be emphasised that there is no evidence that, in confirming the recovery of the sums claimed by the debit notes, the Commission acted in exercise of its prerogatives as a public authority.

First of all, as is clear from paragraphs 29 and 30 of the present order, the debit notes fall within the framework of the grant contracts between the Commission and the applicant, in so far as they are concerned with the recovery of a debt based on the provisions of the grant contracts and their purpose is to enforce the rights that the Commission derives from the provisions of those contracts. By contrast, they do not aim to produce legal effects vis-à-vis the applicant which have their origin in the exercise, by the Commission, of the prerogatives of a public authority held by that institution in accordance with EU law. Those debit notes must therefore be regarded as inseparable from the contractual relationships existing between the Commission and the applicant (see, to that effect, order of 20 April 2016, Mezhdunaroden tsentar za izsledvane na maltsinstvata i kulturnite vzaimodeystvia v Commission, T‑819/14, EU:T:2016:256, paragraph 42).

That assessment cannot be called into question by the applicant’s argument that the Commission, by indicating in the debit notes at issue that recovery could be effected by means of an enforceable decision taken on the basis of Article 299 TFEU, acted as an administrative authority exercising its prerogatives as a public authority.

In that regard, it is sufficient to note that it follows from the case-law that information on the interest which will accrue on the debt established as receivable if it is not paid by the final date for payment, the possible recovery by offsetting or by calling in any previously provided guarantee, as well as the possibility of enforcement and inclusion in a database accessible to the authorising officers of the EU budget, even if it is drafted in a way which could give the impression that it is a definitive act of the Commission, could, in any event and by its very nature, only be information provided in preparation for an act of the Commission related to the enforcement of the debt established as receivable, since in the debit note the Commission does not adopt a position as to the means which it intends to employ in order to recover that debt, increased by default interest accruing from the final date for payment fixed in the debit note (see, to that effect, judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 23; of 17 April 2008, Cestas v Commission, T‑260/04, EU:T:2008:115, paragraphs 74 to 76; and order of 20 April 2016, Mezhdunaroden tsentar za izsledvane na maltsinstvata i kulturnite vzaimodeystvia v Commission, T‑819/14, EU:T:2016:256, paragraphs 45 to 47).

In the present case, it must be stated that the information on the possible means of recovery, as set out in the debit notes, does not show that the Commission has adopted a definitive position, but merely refers to a possible recourse to the recovery of its claims by means of an enforcement action. Similar considerations apply, moreover, to the letters of 6 February 2019, which are merely reminders of the amounts due and the terms of payment (see paragraph 8 of the present order).

Furthermore, in support of its arguments, the applicant cites the Opinion of Advocate General Cruz Villalón in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:110, points 66 and 67), in which he considered, first, that, by addressing to the applicant a debit note purporting to be enforceable, the Commission behaved not as a co-contracting party but rather as an administrative authority exercising its powers as a public authority for the purposes of obtaining payment of sums which it was seeking to recover, and, second, the fact that the adoption of such an enforceable decision is specifically provided for in the general conditions governing the contract at issue cannot call into question the conclusion that the contested debit note must be regarded as a challengeable act.

In that regard, it is sufficient to observe that, in its judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562), the Court did not follow that opinion on that point. The Court expressly stated, first, in paragraph 23 of that judgment, that the debit note must be understood as a formal demand for payment setting out the maturity date and also the payment terms and it cannot be equated to an enforcement order, even though it refers to enforcement pursuant to Article 299 TFEU as a possible option among others open to the Commission where a party fails to perform an obligation by the delivery date laid down and, second, in paragraph 25, that, therefore, an action could not be validly brought before the General Court on the basis of Article 263 TFEU.

Furthermore, contrary to what the applicant claims, that approach has, since then, been followed by the General Court (see, to that effect, order of 20 April 2016, Mezhdunaroden tsentar za izsledvane na maltsinstvata i kulturnite vzaimodeystvia v Commission, T‑819/14, EU:T:2016:256, paragraph 45) and has even been reaffirmed by the Court of Justice (see, to that effect, judgment of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 52).

It follows from the foregoing that the information in the debit notes as to the possibility of recovering the sums claimed does not indicate the expression of an exercise by the Commission of its prerogatives as a public authority.

Second, although the contested decision mentions the total amount of the sums claimed, it is, nevertheless, silent as to the means by which that amount is to be recovered. By the contested decision, the Commission merely confirms the findings of the audit report as to the sums to be reimbursed and reiterates its intention to recover them. Consequently, the applicant has failed to provide evidence specifically related to the substance of the contested decision demonstrating the use of prerogatives as a public authority by the Commission.

In any event and in that regard, it follows from the case-law that a mere confirmation of the findings of a report following a financial audit carried out by a company instructed by the Commission is inseparable from the implementation of the grant contracts and is in no way a use of prerogatives as a public authority (see, to that effect, order of 24 October 2019, United Kingdom v Commission, T‑188/19, not published, EU:T:2019:772, paragraphs 23 and 24).

Furthermore, as noted in paragraph 42 of the present order, by merely reiterating the Commission’s intention to recover the sums claimed in the debit notes and in its letters of 6 February 2019, the contested decision does not constitute a final decision as to the means of recovery.

Given the confirmatory and preparatory nature of the contested decision, the conclusion set out in paragraph 41 of the present order in relation to the debit notes applies in all respects to the contested decision.

Thus, it can be concluded that, in so far as it relates to the claim for the sums indicated in the debit notes, the contested decision does not produce binding effects vis-à-vis the applicant going beyond the purely contractual framework and involving the use of prerogatives as a public authority conferred on the Commission in its capacity as an administrative authority. Consequently, the present action cannot be validly brought before the General Court on the basis of Article 263 TFEU in that regard.

The Commission’s position on the lawfulness of the audit and recovery procedures

By the contested decision, the Commission informed the applicant that it did not agree with the applicant’s objections to the conduct of the audit and recovery procedures and explained the reasons for its contentions before concluding that the principles of transparency and the rights of the defence in those procedures had been observed.

It is appropriate to examine, first, the nature of the legal effects of the contested decision in so far as it addresses the lawfulness of the audit and recovery procedures in order to determine whether it produces binding legal effects outside of or within the contractual relationship between the parties.

First of all, it must be noted that, in the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, it follows from the case-law cited in paragraph 18 of the present order that, in principle, an act is open to review only if it is a measure definitively laying down the position of the Commission at the conclusion of that procedure, and not a provisional measure intended to pave the way for that final decision (judgment of 17 April 2008, Cestas v Commission, T‑260/04, EU:T:2008:115, paragraph 69, and order of 13 September 2011, CEVA v Commission, T‑224/09, not published, EU:T:2011:462, paragraph 56). It would be otherwise only if acts or decisions adopted in the course of the preparatory proceedings not only bore all the legal characteristics referred to above but in addition were themselves the culmination of a special procedure distinct from that intended to permit the Commission to take a decision on the substance of the case (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraphs 10 and 11).

First, the financial audit requested by the Commission was provided for in the grant contracts at issue (see paragraph 3 of the present order). It follows, in essence, from Articles 8 and 16 of their general conditions that the Commission is authorised to carry out or commission financial audits in order to protect the financial interests of the European Union against fraud and other irregularities.

Furthermore, that audit is a procedure usually provided for in that type of contract. Audits pursue the objective of ensuring that the beneficiary of a grant receives a payment only in respect of costs that are eligible under the agreement allocating them, so as to ensure responsible management and use of EU funding (see, to that effect, judgment of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 55).

Second, as stated in paragraph 29 of the present order, the recovery procedure is carried out within the framework of the provisions of the general conditions governing the grant contracts.

Third, the contested decision informs the applicant of the Commission’s assessment, at the time of drafting of that decision, as to the lawfulness of the procedure in the light of the objections made – a factor which is taken into account in the process leading up to the preparation of its final decision as to the recovery of the sums claimed. The contested decision explicitly states that, if it so wished, the applicant could still meet with the Commission to discuss its objections. The fact that the Commission indicated that such a meeting would not put an end to the recovery procedure has no bearing on the assessment of whether the decision is definitive, in so far as that position is based on the additional information sent by the applicant and analysed by the Commission, without prejudice to any other evidence which the applicant might, possibly, put forward. It follows from the foregoing that, despite certain formulations which may appear to set out a position on the part of the Commission, the fact remains that, first, that position is based on the additional information provided by the applicant and, second, the possibility of a change in that position cannot be entirely ruled out, since the Commission remains willing to meet with the applicant. Therefore, until an enforceable decision has been adopted, the Commission’s position cannot be regarded as having binding effects within the meaning of the case-law on the nature of a challengeable act under Article 263 TFEU.

Consequently, the Commission’s position on the lawfulness of the audit and recovery procedures falls within the framework of the contractual provisions and, in accordance with the case-law referred to in paragraph 49 of the present order, is part of, in the same way as the debit notes, the preparation of the final decision, which – as explained in paragraph 37 above – has not yet been adopted. In fact, only the enforceable recovery decision will set in stone the Commission’s assessments and give concrete expression to its position as to the lawfulness of the contested procedures, thereby giving rise to binding effects vis-à-vis the applicant. The nature of any action admissible against that decision will then depend on the nature of that decision.

Second, it is necessary to examine whether the positions taken by the Commission can nevertheless be dissociated from their contractual framework because there is evidence that the Commission, in adopting such positions, has made use of its prerogatives as a public authority.

In that respect, the applicant does not appear to put forward any specific argument other than those already examined in the context of the assessment of the nature of the confirmation in the contested decision of the Commission’s intention to recover the sums claimed by the debit notes, namely the threat of enforcement within the meaning of Article 299 TFEU.

If, however, the applicant’s pleadings were to be understood as arguing that the Commission’s use of its prerogatives as a public authority consisted in leaving it no room for negotiation, then it should be pointed out that, at this stage of the procedure, it is apparent from the documents before the Court that the Commission’s conduct in responding to the applicant’s various observations contesting the lawfulness of the audit and recovery procedures forms part of a dialogue between the applicant and the Commission (see, in that regard, paragraphs 4 to 9 and 53 of the present order), is based on the contractual provisions binding on them and is not indicative of any decision adopted on the basis of the use by the Commission of prerogatives as a public authority (see, to that effect, judgment of 19 September 2019, BTC v Commission, T‑786/17, not published, EU:T:2019:630, paragraphs 30 to 33).

It follows from the foregoing that, in accordance with the case-law referred to in paragraph 22 of the present order, the contested decision, in so far as it defines the position of the Commission as to the lawfulness of the audit and recovery procedures, does not produce binding effects vis-à-vis the applicant going beyond the purely contractual framework and involving the use of prerogatives of a public authority conferred on the Commission acting in its capacity as an administrative authority. Consequently, the present action cannot be validly brought before the General Court on the basis of Article 263 TFEU in that regard.

Therefore, having examined the content of the contested decision, it must be concluded that the action is inseparably linked to a purely contractual framework and that, therefore, the contested decision does not constitute a challengeable act under Article 263 TFEU.

It follows that the action for annulment must be dismissed as inadmissible in its entirety.

For all intents and purposes, it may be stated, first, that, as regards the argument relied on by the applicant concerning the redefinition by the Commission of the concept of a challengeable act within the meaning of Article 263 TFEU, it must be found that it is not set out with sufficient clarity and is not accompanied by the details necessary for the General Court to understand its scope.

Second, as it was noted by the Commission without its being refuted by the applicant, in the absence of an arbitration clause for the benefit of the EU Courts, there is no need to examine the possibility of reclassifying the present action as an action brought under Article 272 TFEU. In that regard, it must be stated, first, that, although Article 13(4) of the General Conditions provides for a jurisdiction clause, that clause is in favour of the Brussels courts where the amicable settlement procedure provided for in paragraph 2 of that provision has failed. Second, even if it were to prove true, as the applicant submits, that the amicable settlement procedure did not fail, it does not follow from that provision that, in those circumstances, the General Court would have jurisdiction.

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.African Development Solutions (ADESO) shall pay the costs.

Luxembourg, 10 September 2020.

Registrar

President

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Language of the case: English.