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Reports of Cases Report s of C ases JUDGMENT OF THE GENERAL COURT (Second Chamber) 24 October 2014 * (Arbitration clause — Programme of Community action in the field of public health — Contract for the funding of a project — Action for annulment — Debit note — Contractual nature of the dispute — Act not amenable to review — Inadmissibility — Reclassification of the action — Eligible costs) In Case T-29/11, Technische Universität Dresden, established in Dresden (Germany), represented by G. Brüggen, lawyer, applicant, v European Commission, represented initially by W. Bogensberger and D. Calciu, and subsequently by W. Bogensberger and F. Moro, acting as Agents, assisted by R. Van der Hout and A. Köhler, lawyers, defendant, APPLICATION for annulment of debit note No 3241011712, issued by the Commission on 4 November 2010, for the reimbursement of the sum of EUR 55 377.62 paid to the applicant in the context of financial assistance in support of a project conducted under the programme of Community action in the field of public health (2003-2008), THE GENERAL COURT (Second Chamber), composed of M.E. Martins Ribeiro, President, S. Gervasoni (Rapporteur) and L. Madise, Judges, Registrar: J. Weychert, Administrator, having regard to the written procedure and further to the hearing on 24 June 2014, gives the following Judgment Background to the dispute 1 The applicant, Technische Universität Dresden, is a higher education institution governed by public law. * Language of the case: German. EN ECLI:EU:T:2014:912 1 JUDGMENTOF 24. 10. 2014 — CASE T-29/11 TECHNISCHE UNIVERSITÄT DRESDEN v COMMISSION 2 On 21 April 2004, the applicant entered into an agreement, reference number 2003114 (SI2.377438) (‘the grant agreement’) with the Commission of the European Communities, acting on behalf of the European Community, for the financing of a project named ‘Collection of European Data on Lifestyle Health Determinants — Coordinating Party (LiS)’ (‘the project’) carried out under the programme of Community action in the field of public health (2003-2008). The duration of the project was 24 months, from 15 April 2004 to 15 April 2006. 3 The grant agreement provided for the applicant to be awarded grants of 60% of the estimated total eligible cost of the project, up to a ceiling of EUR 327 150. 4 Under the first paragraph of Article I.8 of the grant agreement, the grant was to be governed by the terms of the agreement, the Community rules applicable and, on a subsidiary basis, by the law of Belgium relating to grants. In addition, under the second paragraph of Article I.8 of the grant agreement, beneficiaries had the ability to bring legal proceedings before the General Court and, in the event of appeal, to the Court of Justice, regarding decisions by the Commission concerning the application of the provisions of the said agreement and the arrangements for implementing it. 5 Between 14 May 2004 and 13 December 2006, the Commission made three payments in favour of the applicant totalling EUR 326 555.84. This amount was equal to 60% of the total declared cost of the project, being EUR 544 259.73. 6 On 16 and 17 July 2007, the applicant underwent a financial audit. 7 The Commission sent the audit report to the applicant in a letter of 11 January 2008. That report referred to ineligible costs amounting to EUR 90 829.47. That figure was the sum of personnel costs (EUR 46 125.66), miscellaneous costs (EUR 12 918.45), administration costs (EUR 3 030.83) and reserve for unexpected costs (EUR 24 341.17), to which were added indirect costs also considered ineligible (EUR 4 413.36). It did not include travel expenses, although the explanations in the report commented that some travel expenses connected with a meeting organised in Cyprus in September 2005, amounting to EUR 638.04, were ineligible. 8 Following the audit report recommendations, the Commission asked the applicant, in its letter of 11 January 2008, to repay the sum of EUR 54 497.68, which corresponded to the difference between the financial assistance paid on the basis of the total cost declared by the applicant, and the maximum financial contribution which, following the audit, was fixed at EUR 272 058.16. The Commission invited the applicant to present its observations on those findings. 9 By a letter of 20 February 2008, the applicant agreed to pay back EUR 24 763.13, disputed certain findings in the audit report and supplied certain documents to the Commission intended to show that some of the costs considered ineligible in the said report were in fact eligible. 10 By a pre-information letter of 18 February 2009 (‘the pre-information letter’), the Commission, having assessed the observations and documents supplied by the applicant, increased the ineligible total to EUR 92 296.04. In the annex to that letter, the Commission specified that that amount consisted of personnel costs (EUR 44 156.76), travel and subsistence costs (EUR 3 083.65) and miscellaneous costs (EUR 13 270.27), bringing the total repayable to EUR 55 377.62. 11 By letters of 13 and 31 March 2009, the applicant disputed those findings and supplied additional documents. It agreed to repay only EUR 27 309.29. 12 By a debit note No 3241011712 of 4 November 2010 (‘the debit note’), communicated to the applicant by mail dated 11 November 2010, the Commission claimed repayment from the applicant of EUR 55 377.62, to be paid before 20 December 2010. The applicant received this communication on 15 November 2010. 2 ECLI:EU:T:2014:912 JUDGMENTOF 24. 10. 2014 — CASE T-29/11 TECHNISCHE UNIVERSITÄT DRESDEN v COMMISSION Procedure and forms of order sought 13 By application lodged at the Registry of the General Court on 14 January 2011, the applicant brought the present action. 14 By separate document lodged at the Registry of the General Court on 31 March 2011, the Commission raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the General Court. The applicant submitted its observations on the objection of inadmissibility within the prescribed time-limit. 15 Following the partial renewal of the General Court, the case was allocated to a new Judge-Rapporteur. That Judge-RapportEUR was subsequently assigned to the Second Chamber, to which this case was accordingly allocated. 16 By order of the General Court of 20 November 2013, consideration of the objection of inadmissibility was reserved for the final judgment and the costs were reserved. 17 Pursuant to Article 47(1) of its Rules of Procedure, the General Court decided that a second exchange of pleadings was unnecessary because the documents before the court were sufficiently comprehensive to enable the parties to elaborate their pleas and arguments in the course of the oral procedure. 18 On hearing the report of the Judge-Rapporteur, the General Court (Second Chamber) decided to open the oral procedure in the present case and, by way of measures of organisation of procedure pursuant to Article 64 of its Rules of Procedure, requested the parties to produce certain documents. The parties complied with that request within the prescribed period. 19 The parties presented oral argument and answered the questions put by the General Court at the hearing on 24 June 2014. 20 The applicant claims that the Court should: — annul the debit note; — dismiss the objection of inadmissibility raised by the Commission and, in the alternative, reclassify this action as a contractual action under Article 272 TFEU; — order the Commission to pay the costs. 21 The Commission contends that the Court should: — dismiss the action as inadmissible; — in the alternative, dismiss the action as unfounded; — order the applicant to pay the costs. 22 At the hearing, in response to a question raised by the General Court, the applicant specified that in the event of the action being reclassified as an action based on Article 272 TFEU, its claim should be interpreted, in essence, as an application for the General Court to declare as eligible EUR 48 971.84 of the costs wrongly held by the Commission to be ineligible, so that the Commission’s claim in relation to those costs would be unfounded. ECLI:EU:T:2014:912 3 JUDGMENTOF 24. 10. 2014 — CASE T-29/11 TECHNISCHE UNIVERSITÄT DRESDEN v COMMISSION Law Jurisdiction of the General Court and admissibility of the action 23 The Commission pleads inadmissibility of the action for annulment on the grounds that, in essence, the debit note does not constitute a challengeable act for the purposes of Article 263 TFEU. It contends that the debit note firstly forms part of a purely contractual relationship, from which it is inseparable, and, secondly, constitutes an act preparatory to a potential enforcement procedure and the adoption of a decision for the purposes of Article 299 TFEU. 24 By way of preliminary observation, it should be noted that it is for the applicant to choose the legal basis of its action and not for the European Union judicature itself to choose the most appropriate legal basis (judgment of 15 March in Spain v Eurojust, C-160/03, EU:C:2005:168, paragraph 35, and order of 12 October 2011 in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, T-353/10, ECR, EU:T:2011:589, paragraph 18). 25 In the present case, the applicant brought its claim for annulment on the basis of Article 263 TFEU. First, the applicant expressly seeks the annulment of the debit note. Secondly, Article 263 TFEU is referred to several times in both the application initiating proceedings and in the applicant’s observations on the objection of inadmissibility raised by the Commission.
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