International Management Group v Commission (Judgment) [2017] EUECJ T-29/15 (02 February 2017)

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(Development cooperation — Annual Action Programme in favour of Myanmar/Burma to be financed from the general budget of the European Union — Budget implementing decision — Modification — Action for annulment — Challengeable act — Admissibility — Obligation to state reasons — Principle of sound financial management — Principle of good administration — Transparency — Remedy — Legitimate expectations)

International Management Group, established in Brussels (Belgium), represented by M. Burgstaller, C. Farrell, Solicitors, and E. Wright, Barrister,

European Commission, represented by J. Baquero Cruz and S. Bartelt, acting as Agents,

ACTION on the basis of Article 263 TFEU seeking the annulment of Commission Implementing Decision C(2014) 9787 final of 16 December 2014, amending Implementing Decision C(2013) 7682 final on the Annual Action Programme 2013 in favour of Myanmar/Burma to be financed from the general budget of the European Union,

composed, at the time of deliberation, of A. Dittrich, President, J. Schwarcz and V. Tomljenović (Rapporteur), Judges,

1 On 7 November 2013, the European Commission adopted Implementing Decision C(2013) 7682 final on the Annual Action Programme 2013 in favour of Myanmar/Burma to be financed from the general budget of the European Union (‘the original implementing decision’).

2 Article 1 of the original implementing decision states that the Annual Action Programme 2013 in favour of Myanmar/Burma, constituted by two actions, is approved. The first action, which is described in Annex 1 to that decision, concerns support to peace, reconciliation and development. The second action, which is described in Annex 2 to that decision, consists in a trade development programme.

3 Article 2 of the original implementing decision provides for a budget of EUR 35 million for the implementation of the two actions mentioned in paragraph 2 above.

4 Article 3 of the original implementing decision provides that the budget-implementation tasks under joint management may be entrusted to the entity identified in Annexes 1 and 2 to that decision, ‘subject to the conclusion of the relevant [delegation] agreement’.

5 Annex 2 to the original implementing decision provides, for the single project covered by the second action (‘the project at issue’), for a total cost of EUR 10 million, entirely financed by an EU contribution, which is to be implemented through joint management with an international organisation. The entity designated in point 8.3.1 of that annex is the applicant, International Management Group. It is indicated, inter alia, in that point that that choice is justified because the applicant is already established in Myanmar/Burma and has developed a strong working relationship with many of the beneficiaries of the project at issue and because the project at issue was elaborated jointly between the applicant and the Commission.

6 On 17 February 2014, the European Anti-Fraud Office (OLAF) informed the Commission that it had opened an investigation relating to the legal nature of the applicant as an international organisation (OF/2011/1002) and referred to the possibility of adopting precautionary measures pursuant to Article 7(6) of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by OLAF and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013 L 248, p. 1) (‘the OLAF regulation’).

7 On 26 February 2014, the Director General of the Commission’s Directorate-General for International Cooperation and Development (‘the Director General’) adopted precautionary measures in relation to the recognition of the legal status of the applicant (‘the precautionary measures’) as an international organisation within the meaning 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 Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1) (‘the 2012 Financial Regulation’).

8 On 25 April 2014, the Director General sent a letter to the applicant. In that letter, he stated, first of all, that, following questions raised by the European Parliament in the context of the annual discharge of the 2012 budget concerning the applicant’s status as an international organisation, the Commission had exchanged a number of letters with the applicant, from 16 December 2013 to 4 April 2014. Those exchanges were intended to allow the applicant to establish that it constituted an international organisation. Next, the Director General indicated that several EU Member States had disputed the applicant’s assertion that they were members, or establishing members, of the international organisation which the applicant claims to be. In addition, the Secretariat General of the United Nations (UN) had stated that the applicant was not a specialised agency. Furthermore, there were doubts regarding the powers of the persons who represented their countries at the time when the applicant was established. The Director General also indicated that, in the light of the abovementioned new factors, he had adopted, as the responsible authorising officer, precautionary measures intended to suspend the contractual procedures involving the applicant, as long as its legal status had not been clarified. However, those measures concerned only the projects that might be granted to the applicant as an international organisation, and not the other projects that might be awarded to it further to a tendering procedure or a call for proposals. Lastly, the Commission noted that, under the original implementing decision, it enjoyed a discretion to conclude an agreement with the applicant and that that decision did not produce legal effects vis-à-vis the applicant.

9 By letter of 17 June 2014, OLAF informed the applicant that an investigation had been opened in which it was considered to be a person concerned. According to OLAF, that investigation related to possible irregularities in the attribution of EU funds to the applicant linked to its legal nature (‘the OLAF investigation’).

10 By letter of 11 July 2014, the Director General replied to the letters of 15 May 2014 and 10 June 2014, in which the applicant had requested clarification of the new elements relating to its legal status contained in the letter of 25 April 2014. In that letter of 11 July 2014, the Director General informed the applicant that it was a person concerned in the OLAF investigation and that OLAF would remain, on behalf of the Commission, the applicant’s sole interlocutor for questions relating to the latter’s legal status.

11 On 23 October 2014, the applicant sent a letter to the Commission in which it suggested, inter alia, that the Commission directly engage the applicant under a grant procedure for the implementation of the budget for the project at issue.

12 On 15 December 2014, the Commission received the final report of the OLAF investigation along with a number of administrative and financial recommendations.

13 On 16 December 2014, the Commission adopted Implementing Decision C(2014) 9787 final amending the original implementing decision (‘the contested decision’). The contested decision contains a single article, in which the Commission states that Annex 2 to the original implementing decision is replaced by the annex which is attached to the contested decision (‘the new annex’).

14 In points 1 and 4.3 of the new annex, the Commission states that the budget for the project at issue would be implemented under indirect management with Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH (‘GIZ’).

15 Also on 16 December 2014, the Commission informed the applicant, in reply to a letter that the latter had sent to it on 11 December 2014, that ‘since the qualification of your Organisation is currently being questioned, our Director General informed you of his decision to put on hold the use of contractual procedures applicable to international organisations with regards to [your organisation], until more certainty is available on your legal status’. The Commission also indicated that, ‘while this decision does not affect the possibility of considering the conclusion of a grant contract, this modality falls under another management mode which is not the one corresponding to [the project at issue]’.

16 The applicant brought the present action by application lodged at the Court Registry on 21 January 2015. By means of a separate document lodged on the same day, the applicant requested that the action be decided under an expedited procedure, in accordance with Article 76a of the Rules of Procedure of the General Court of 2 May 1991.

17 By decision of 17 February 2015, the Court (Fifth Chamber) rejected the application for an expedited procedure.

18 By document lodged at the Court Registry on 24 March 2015, the Commission raised an objection of inadmissibility in accordance with Article 114(1) of the Rules of Procedure of 2 May 1991. The applicant submitted its observations on that objection on 7 May 2015.

19 By order of the Court of 30 June 2015, the decision on that objection and the decision on costs were reserved for the final judgment.

22 On 13 January 2016, the applicant lodged an offer of further evidence with the Court Registry, in accordance with Article 85(3) of the Rules of Procedure, containing an application for a measure of inquiry requesting the Court to order the Commission to produce certain documents. The Commission submitted its observations on that request on 23 February 2016.

23 On 14 March 2016, the Court Registry notified the parties of the close of the written part of the procedure. The parties did not submit a request for a hearing within the time limit laid down in Article 106 of the Rules of Procedure.

26 In support of its action, the applicant raises seven pleas in law. The first plea in law alleges, in essence, that the Commission infringed Article 53d(1) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) (‘the 2002 Financial Regulation’), and Article 60(2) of the 2012 Financial Regulation, inasmuch as it wrongly took the view that the applicant was not an international organisation. The second plea in law alleges, in essence, that the Commission also infringed those provisions, inasmuch as the applicant satisfies the conditions under which the entities implementing the budget under indirect management must operate. The third plea in law alleges infringement of the principles of sound financial management and good administration. The fourth plea in law alleges infringement of the principle of transparency. The fifth plea in law alleges breach of Article 97 of the 2012 Financial Regulation, inasmuch as the Commission failed to indicate to the applicant the existence of a means of redress. The sixth plea in law alleges a failure to state reasons in the contested decision. The seventh plea in law alleges infringement of the principle of the protection of legitimate expectations.

27 As a preliminary point, the Court considers it appropriate to point out that, in the seven pleas in law which it raises, the applicant alleges infringement of provisions of both the 2002 Financial Regulation and the 2012 Financial Regulation. It must be noted, in this respect, that, as can be seen from the third citation in the contested decision, that decision was concluded in accordance with the 2012 Financial Regulation. Under Article 214(1) of the 2012 Financial Regulation, that regulation applies from 1 January 2013, with the exception of, inter alia, Articles 58 to 63, which apply only to commitments made as of 1 January 2014.

28 The Commission submits that the action is inadmissible. It raises two pleas of inadmissibility in that respect.

29 By the first plea of inadmissibility, the Commission submits, in essence, that the action is inadmissible on the ground that the contested decision does not constitute a challengeable act for the purpose of Article 263 TFEU. In its view, the contested decision does not produce legal effects vis-à-vis the applicant. It is a purely internal and procedural measure, which does not definitively lay down the Commission’s position.

30 Since the original implementing decision does not create rights in relation to the applicant, the contested decision could not have deprived it of any rights and did not change its legal position. The contested decision, the Commission argues, has only purely factual consequences for the applicant.

31 In addition, since the allocation of the budget for the project at issue was subject to the conclusion of a delegation agreement with the applicant, only the conclusion of such an agreement would have been capable of changing the applicant’s legal situation.

33 The Commission submits that the contested decision is a purely internal and procedural decision. It follows from Article 84 of the 2012 Financial Regulation that a financing decision, such as the contested decision, precedes any commitment of expenditure, which would materialise in the present case by the conclusion of an agreement with the authorising officer. The authorising officer enjoys a certain measure of discretion to decide to commit the expenditure or not.

35 According to the case-law, any measure the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position is an act or a decision which may be the subject of an action for annulment under Article 263 TFEU (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9). 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, a measure will be open to review for the purpose of Article 263 TFEU only if it is a measure definitively laying down the position of the Commission upon conclusion of that procedure, and not a provisional measure intended to pave the way for that final decision (see, to that effect, judgment of 17 April 2008, Cestas v Commission, T‑260/04, EU:T:2008:115, paragraph 69 and the case-law cited). It is only in the case of measures immediately and irreversibly affecting the legal position of the undertakings concerned that an action for annulment could justifiably be held to be admissible before the administrative procedure is completed (order of 14 March 1996, Dysan Magnetics and Review Magnetics v Commission, T‑134/95, EU:T:1996:38, paragraph 21).

36 It is therefore necessary to verify whether, in the present case, it follows from the contested decision that the Commission, in that decision, definitively laid down its position, thus immediately and irreversibly affecting the legal position of the applicant, or whether that decision is a provisional measure intended to pave the way for the final decision.

37 In the first place, two preliminary points must be made regarding the nature of the contested decision.

38 First, it is undisputed that, by the contested decision, the Commission amended the original implementing decision by replacing the applicant with GIZ as the entity chosen to implement the budget for the project at issue under indirect management, in the event that a delegation agreement would be concluded. As noted in paragraph 13 above, Article 1 of the contested decision indicates that Annex 2 to the original implementing decision, which refers to the applicant, is replaced by the new annex, which refers to GIZ.

39 Secondly, it is also undisputed that the contested decision constitutes, in the same way as the original implementing decision, a Commission decision identifying GIZ as being, should the case arise, the entity responsible for implementing the budget for the project at issue. That decision precedes the potential conclusion, or non-conclusion, by the authorising officer of a delegation agreement with GIZ.

40 Those conclusions on the nature of the contested decision follow, as the parties agree, from Articles 58 and 84 of the 2012 Financial Regulation.

(c) indirectly (“indirect management”), where this is provided for in the basic act or in the cases referred to in points (a) to (d) of the first subparagraph of Article 54(2) [of the 2012 Financial Regulation], by entrusting budget implementation tasks to:

2. ... the commitment of expenditure shall be preceded by a financing decision adopted by the institution ...

3. The financing decision referred to in paragraph 2 shall specify the objective pursued, the expected results, the method of implementation and its total amount. It shall also contain a description of the actions to be financed and an indication of the amount allocated to each action, and an indicative implementation timetable.

In the case of indirect management, the financing decision shall also specify the entity or person entrusted pursuant to point (c) of Article 58(1), the criteria used to select the entity or person and the tasks entrusted to that entity or person.’

43 In the second place, in the light of the findings set out in paragraphs 38 to 42 above, it is necessary to examine whether a decision such as the contested decision constitutes a definitive act or, on the contrary, an intermediate act preceding a decision consisting in the conclusion of the agreement with GIZ, which would be the only challangeable act.

44 First, it must be held that, although the contested decision precedes a decision consisting in the potential conclusion of an agreement with an entity other than the applicant, it is, in any event, a definitive decision of the Commission, since it excludes all possibility of the applicant being chosen by the authorising officer with a view to concluding an agreement for the implementation of the budget for the project at issue, given that GIZ alone could be selected by that officer.

45 The effect of the contested decision is to select GIZ as the entity with which the authorising officer could conclude an agreement and, accordingly, to exclude any possibility of an agreement being concluded with the applicant for the project at issue.

46 Secondly, as the applicant submits, the contested decision is the last act adopted in the procedure, which immediately and irreversibly affects the applicant.

47 The applicant, which had initially been chosen, pursuant to the provisions of Article 84 of the 2012 Financial Regulation, therefore has the right to contest the only decision which gives substance to the fact that it will be unable to conclude the delegation agreement.

48 In the light of the considerations set out in paragraphs 43 to 47 above, it is necessary to conclude that the contested decision constitutes a definitive act.

49 The Commission’s argument that the contested decision is purely internal, since the authorising officer has a certain measure of discretion to conclude the delegation agreement with GIZ, does not alter that conclusion.

50 First of all, the fact that it is not certain that the authorising officer will conclude a delegation agreement with GIZ has no bearing on the fact that that agreement could, in all events, be concluded only with GIZ, and not with the applicant.

51 Furthermore, as can be seen from the conclusion set out in paragraph 48 above, the contested decision lays down the Commission’s position definitively, and not provisionally, since — in view of the contested decision — the Commission could not conclude any delegation agreement with the applicant for the implementation of the budget for the project at issue.

52 It follows from the foregoing that the contested decision therefore does not constitute an act which is purely provisional and internal to the Commission, as the latter wrongly submits.

53 The first complaint made in the context of the first plea of inadmissibility raised by the Commission must therefore be rejected as unfounded.

– The second complaint, relating to the legal effects of the contested decision

54 First, the Commission submits that, since the original implementing decision did not create any rights in relation to the applicant, the contested decision could not deprive it of any rights and did not change its legal position. The contested decision, it argues, had only purely factual consequences for the applicant. Secondly, since the allocation of the project at issue was subject to the conclusion of an agreement with the applicant, only the conclusion of such an agreement would have been capable of altering its legal situation.

56 It must be noted, first of all, that, according to the case-law, only measures whose legal effects are binding on the applicant and are capable of affecting his interests are acts or decisions which may be the subject of an action for annulment under Article 263 TFEU (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 22 April 1997, Geotronics v Commission, C‑395/95 P, EU:C:1997:210, paragraph 10).

57 In the present case, suffice it to point out that, as noted, in essence, in paragraph 46 above, as a result of the contested decision, the applicant definitively could not conclude the delegation agreement, should the case arise, with the result that its interests must be regarded as having been affected by that decision.

58 The arguments which the Commission puts forward in that regard are not capable of rebutting that conclusion.

59 First, it is necessary to reject as unfounded the Commission’s argument that the legal position of the applicant was not altered, since it would have been entrusted with the implementation of the budget for the project at issue only if, as indicated in the original implementing decision, an agreement had been concluded with it. The fact that the original implementing decision provided that the applicant could implement the budget for the project at issue only if an agreement were subsequently concluded does not alter the conclusion that the contested decision has the effect of definitively preventing the applicant from concluding the delegation agreement, even though it had initially been chosen for that purpose, in accordance with Article 84(3) of the 2012 Financial Regulation.

60 Secondly, the Commission’s argument that a change in the entity to which such tasks could be entrusted would bring about a change in the applicant’s factual situation, but not in its legal position, must be rejected as unfounded. Since the applicant was selected in the original implementing decision and was replaced by GIZ in the contested decision, it could no longer, in any event, conclude that agreement if, as had been provided in the original implementing decision, the authorising officer had decided to commit the expenditure.

61 The reference made by the Commission to the order of 8 January 2014, Stichting Sona and Nao v Commission (T‑505/13 R, EU:T:2014:1), adopted by the Court in the context of proceedings for interim relief, cannot undermine the conclusion that the contested decision altered the applicant’s legal position. In the case that gave rise to that order, the applicants, Stichting Sona and Nao NV, had asked the Court to annul a Commission decision which had allegedly excluded, for the benefit of International Management Group, the possibility of the applicants’ implementing the 10th European Development Fund for the former Netherlands Antilles.

62 First, in that respect, it must be held that, unlike in the present case, the President of the Court first noted, in paragraph 29 of the order of 8 January 2014, Stichting Sona and Nao v Commission (T‑505/13 R, EU:T:2014:1), that, although there were documents showing that International Management Group was expected to replace the applicants in that case, no decision had been taken appointing International Management Group as the delegate entity. In the present case, however, the Commission had initially appointed the applicant before appointing GIZ.

63 Secondly, inasmuch as, in paragraph 51 of the order of 8 January 2014, Stichting Sona and Nao v Commission (T‑505/13 R, EU:T:2014:1), the President of the Court expressed doubts as to whether a decision rejecting an undertaking could be challangeable, since it merely altered a purely factual situation, the scope of those doubts must be minimised in the present case. Unlike the case that gave rise to the adoption of that order, the Commission, in the contested decision, definitively deprived the applicant of the right to conclude, should the case arise, the delegation agreement, even though it had previously been selected as the delegate entity.

64 In the light of the considerations set out in paragraphs 56 to 63 above, it must be concluded that the contested decision alters the applicant’s legal position.

65 Accordingly, the second complaint put forward in the context of the first plea of inadmissibility and, consequently, the first plea of inadmissibility in its entirety must be rejected as unfounded.

66 In its defence, the Commission submits that the applicant has lost the right to challenge the contested decision, since the effects of that decision are merely the direct and necessary consequence of the precautionary measures. According to the Commission, it was already clear from the precautionary measures, which the applicant did not challenge, that the Commission would not conclude the delegation agreement with the applicant so long as the latter’s legal situation had not been clarified.

68 As a preliminary point, it must be noted that, by its second plea of inadmissibility, the Commission essentially argues that the action is inadmissible since the contested decision merely confirms the precautionary measures. In its view, the contested decision does not give rise to legal effects other than those generated by the precautionary measures, namely that the applicant would be replaced by another entity in the procedure in question, with a view to the potential conclusion of the delegation agreement.

69 According to settled case-law, an action for the annulment of a measure which merely confirms a previous decision that has become final is inadmissible. A measure is regarded as merely confirmatory of a previous decision if it contains no new factor as compared with the previous decision and was not preceded by a re-examination of the circumstances of the person to whom that decision was addressed (see judgment of 22 May 2012, Sviluppo Globale v Commission, T‑6/10, not published, EU:T:2012:245, paragraph 22 and the case-law cited).

70 In the present case, first, it must be held that the contested decision contains a new factor as compared with the precautionary measures.

71 It follows from the substance of the precautionary measures that they effectively suspended, temporarily, the possibility of the applicant concluding, should the case arise, the delegation agreement until its legal status had been clarified.

72 By contrast, as noted in paragraph 59 above, the legal effect of the contested decision was to exclude definitively the possibility of the applicant concluding, where appropriate, the delegation agreement with the Commission, since it was replaced by GIZ in the contested decision.

73 It follows that the contested decision contains a new factor, within the meaning of the case-law cited in paragraph 69 above, as compared with the precautionary measures which indicated that it was only on a provisional basis that the Commission had decided that the applicant could not conclude the delegation agreement.

74 Secondly, and in any event, it must be observed that the precautionary measures and the contested decision were adopted at the conclusion of different administrative procedures and that they have different legal bases.

75 As mentioned in paragraphs 6 and 7 above, the Commission adopted the precautionary measures in the context of the OLAF investigation concerning the applicant’s status as an international organisation and on the basis of provisions of the OLAF regulation relating to the conduct of investigations. The contested decision, by contrast, was adopted in the context of the Annual Action Programme 2013 in favour of Myanmar/Burma to be financed from the general budget of the European Union and on the basis of the provisions of the 2012 Financial Regulation.

76 In those circumstances, contrary to what is claimed, in essence, by the Commission, the fact that the applicant did not bring an action against the precautionary measures cannot have the effect of depriving it of its right to bring an action against the contested decision. Since only an action seeking annulment of the contested decision enables the applicant to contest the legality of measures relating not to the investigation, but to the grant of funds in the context of the Annual Action Programme 2013 in favour of Myanmar/Burma, in view of provisions of the 2012 Financial Regulation, and not those of the OLAF regulation relating to the conduct of investigations, the contested decision contains a new factor, within the meaning of the case-law cited in paragraph 69 above, that the applicant could not in any event have contested by bringing an action for annulment of the precautionary measures.

77 In those circumstances, the second plea of inadmissibility must be rejected as unfounded.

78 It follows from all of the foregoing that the pleas of inadmissibility raised by the Commission must be rejected as unfounded and, accordingly, that the present action is admissible.

79 As regards the seven pleas in law raised by the applicant, and set out in paragraph 26 above, it must be recalled, as a preliminary point, that by its first and second pleas in law the applicant essentially argues that the Commission failed to demonstrate that the applicant did not fulfil the conditions set out in Article 53d(1) of the 2002 Financial Regulation and in Article 60(2) of the 2012 Financial Regulation. For that reason, it is appropriate to examine those two pleas in law together.

80 In addition, the Court considers it appropriate to examine first the sixth plea in law, alleging a failure to state reasons for the contested decision.

81 The applicant submits, in essence, first of all, that the Commission failed to comply with its duty to state reasons. It argues that no element of fact or law in either the correspondence between the Commission and the applicant or the contested decision provides a valid statement of reasons.

83 It is settled case-law that the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of concern, for the purpose of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 63 and the case-law cited).

84 In the present case, it must be noted that, while it is true that the contested decision does not indicate the reasons which led the Commission to replace the applicant with GIZ in the new annex, it is nevertheless the case that those reasons are clear from the context in which the contested decision was adopted and of which the applicant was aware.

85 In the first place, it must be noted that, by letter of 25 April 2014, the Commission, as mentioned in paragraph 8 above, while protecting the confidentiality of the OLAF investigation, informed the applicant of the facts that had led to its status as an international organisation being called into question. First, in that letter, the Commission stated that ‘new elements in the file ... indicate that several countries (Spain, Portugal, Norway, Italy and Belgium), which [were] reported by [the applicant] as its members or establishing members, do not consider themselves [either] members [or] establishing members’ of the applicant. Secondly, the Commission indicated that ‘the UN Secretariat General [had] stated that [the applicant, which indicates that it was created further to a working meeting of the United Nations High Commissioner for Refugees] was not a specialised agency’. Thirdly, the Commission stated that ‘there [were] doubts regarding the powers of the persons who represented their countries at the time of the establishment act [of the applicant]’ and that it was not possible that the budget for the project at issue be granted to the applicant under indirect management before the issue of its legal status had been clarified.

86 In the second place, it must be noted that, by letter of 17 June 2014, OLAF notified the applicant of the opening of an investigation, and informed it that the investigation related to potential irregularities in the allocation of EU funds concerning the applicant, linked to its legal status as regards Article 53(1)(c) of the 2002 Financial Regulation. Furthermore, it can be seen from the file before the Court that, by letter of 14 August 2014, OLAF invited the applicant to an interview.

87 In the third place, it must be noted that, by letter of 11 July 2014, the Commission confirmed to the applicant, in essence, that the doubts concerning its legal status, indicated in the letter of 25 April 2014, were supported by the elements in the file resulting from the OLAF investigation, of which the Commission was aware.

88 In the fourth place, it must be noted that, by letter of 16 December 2014, bearing the same date as the contested decision, the Commission notified the applicant that the question of its legal status had still not been clarified and informed it that, consequently, and in view of the deadline laid down by the Financial Regulation for the signature of the delegation agreement, the Commission had decided to adopt the contested decision and to entrust the implementation of the budget for the project at issue to GIZ.

89 It can therefore be seen from the letters referred to in paragraphs 85 to 88 above, that, contrary to the applicant’s assertions, it was aware of the fact that the Commission had doubts as to whether it could be regarded as an international organisation within the meaning of the 2012 Financial Regulation, for the reasons set out in paragraph 85 above, and that the Commission considered that it had not received clarifications allowing it to reject those doubts. That finding is, moreover, supported by the fact that the applicant submits, in essence, in the context of the first plea in law, that, contrary to what the Commission considered, it is an international organisation (see, in particular, paragraph 102 below).

91 First, in so far as the applicant submits, in the introduction to the application and in the reply, that, in the contested decision, ‘there is no mention of any kind ... of the legal basis on which the European Commission relied to
justify [the] amendment to the original implementing decision’, that argument must be rejected as unfounded. It suffices to note, in that regard, that, as can be seen from the very wording of the citations in the contested decision, that decision was adopted on the basis of, inter alia, Article 2(1) of Regulation (EU) No 236/2014 of the European Parliament and of the Council of 11 March 2014 laying down common rules and procedures for the implementation of the Union’s instruments for financing external action (OJ 2014 L 77, p. 95), and of Article 84(2) of the 2012 Financial Regulation.

92 Secondly, it is necessary to reject as unfounded the applicant’s argument that the Commission did not inform the applicant of the ‘new elements in the file’, that it did not provide those elements to the applicant and that it should have provided those elements to the applicant in order to allow it to understand the reasoning for the contested decision. First, as is clear from the Commission’s letter of 25 April 2014, and as the Commission confirms in its written pleadings, referring to the existence of ‘new elements in the file’, it merely indicated that its doubts concerning the applicant’s status as an international organisation, resulting from the factors set out in paragraph 85 above, were supported by the new pieces of information or evidence resulting from the investigation. Moreover, it must be noted that the applicant does not dispute that, as the Commission points out, it was required, under Article 10 of the OLAF Regulation, to ensure the confidentiality of the OLAF investigation, with the result that it could not disclose to the applicant the details of new information or evidence resulting from the investigation.

93 In the light of all of the foregoing considerations, it must be concluded that, in accordance with the case-law cited in paragraph 83 above, the applicant was in a position to challenge the contested decision and the Court was able to examine the legality of that decision, with the result that the Commission did not breach its duty to state reasons.

The first and second pleas in law, alleging infringement of Article 53d(1) of the 2002 Financial Regulation and of Article 60(2) of the 2012 Financial Regulation

95 The applicant submits, in essence, that the Commission failed to demonstrate that it did not comply, or no longer complied, with the requirements laid down in Article 53d(l) of the 2002 Financial Regulation and in Article 60(2) of the 2012 Financial Regulation.

97 First of all, it must be recalled that, as set out in paragraph 41 above, Article 58(1)(c) of the 2012 Financial Regulation provides that the Commission may implement the budget through indirect management by entrusting budget implementation tasks to international organisations and their agencies.

98 Furthermore, Article 43(1)(a) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of the 2012 Financial Regulation (OJ 2012 L 362, p. 1; ‘the Delegated Financial Regulation’) provides that the international organisations referred to in Article 58(1)(c)(ii) of the 2012 Financial Regulation are international public-sector organisations set up by intergovernmental agreements, and specialised agencies set up by such organisations.

99 Lastly, it must be noted that Article 60(2) of the 2012 Financial Regulation, which essentially reiterates, in a more detailed manner, the relevant provisions of Article 53d of the 2002 Financial Regulation, is worded as follows:

‘In order to protect the financial interests of the Union, the entities and persons entrusted pursuant to point (c) of Article 58(1) shall, in accordance with the principle of proportionality:

(a) set up and ensure the functioning of an effective and efficient internal control system;

(b) use an accounting system that provides accurate, complete and reliable information in a timely manner;

(c) be subject to an independent external audit, performed in accordance with internationally accepted auditing standards by an audit service functionally independent of the entity or person concerned;

(d) apply appropriate rules and procedures for providing financing from Union funds through grants, procurement and financial instruments;

(e) ensure, in accordance with Article 35(2), the ex post publication of information on recipients;

(f) ensure a reasonable protection of personal data, as laid down in Directive 95/46/EC and Regulation (EC) No 45/2001.

100 It follows from the provisions cited in paragraphs 97 to 99 above that Article 58(1)(c) of the 2012 Financial Regulation, read in conjunction with Article 43(1) of the Delegated Financial Regulation, provides that the tasks of budget implementation under indirect management may be entrusted solely to those entities which may properly be described as ‘international organisations’. In addition, Article 60(2) of the 2012 Financial Regulation provides that international organisations entrusted with tasks of budget implementation under indirect management must satisfy certain conditions intended, in particular and in essence, to ensure the proper implementation of the budget entrusted to them, so as to protect the financial interests of the European Union.

101 The applicant puts forward three main complaints in support of its line of argument that the Commission failed to demonstrate that it did not satisfy, or no longer satisfied, the conditions laid down in Article 53d of the 2002 Financial Regulation and Article 60(2) of the 2012 Financial Regulation.

102 In the first place, the applicant submits, essentially in its first plea in law, that it is an international organisation within the meaning of the 2002 Financial Regulation and the 2012 Financial Regulation. According to the applicant, the Commission has, in the past, expressly recognised that the applicant is an international organisation and has cooperated with the applicant on numerous other projects. The Commission therefore erred in taking the view that the applicant did not satisfy, or no longer satisfied, the conditions to be entrusted with the implementation of the budget for the project at issue or in taking the view that the issue of the applicant’s status was not relevant.

103 In that respect, first, it must be noted that, as the Commission rightly submits, and as is quite clear from the context in which the contested decision was adopted (see paragraph 89 above), the Commission took the view that there were doubts concerning the applicant’s status as an international organisation which had not been dispelled, and that, consequently, it was necessary to replace the applicant with GIZ for the implementation of the budget for the project at issue.

104 Secondly, contrary to the applicant’s assertions, the factors that it put forward, namely the fact that its status as an international organisation is stipulated in its statute, that it was established by an intergovernmental agreement, and that the Commission recognised its status as an international organisation on several occasions, are not capable of establishing that the Commission erred in expressing doubts as to its status as an international organisation.

105 Those factors do not make it possible to dispel the doubts concerning the applicant’s legal status, given that (i) several States which, according to the applicant, were among its members or its establishing members have disputed this, (ii) the Secretariat General of the UN took the view that the applicant — which states that it was established following a working meeting of the Humanitarian Issues Working Group of the United Nations High Commissioner for Refugees — was not a specialised agency of the UN and (iii) there were doubts as to the powers of delegation of the persons representing their countries at the time of the act establishing the applicant. In that respect, it must be emphasised that the applicant has not put forward any argument or evidence before the Court capable of dispelling the doubts concerning its status as an international organisation resulting from those last three factors. Furthermore, the fact that, as the applicant submits, the Commission cooperated with the applicant in the past or that it had not previously expressed any doubts as to the applicant’s status does not affect the finding that the abovementioned factors were such as to give rise to doubts, on the part of the Commission, concerning the applicant’s status as an international organisation.

106 In those circumstances, it must be noted that, in taking the view that there were doubts as to the applicant’s status as an international organisation, the Commission did not infringe the conditions laid down in Article 53d(1) of the 2002 Financial Regulation and in Article 60(2) of the 2012 Financial Regulation.

107 In the second place, the applicant submits, in essence, in the second plea in law, that it satisfies, and that it never ceased to satisfy, the conditions laid down in Article 53d(1) of the 2002 Financial Regulation and in Article 60(2) of the 2012 Financial Regulation, set out in paragraph 99 above, intended, in essence, to ensure that the financial interests of the European Union are protected.

108 In that respect, suffice it to hold that Article 53d(1) of the 2002 Financial Regulation and Article 60(2) of the 2012 Financial Regulation, and, consequently, compliance with the conditions which they lay down, presuppose, in any event, that the entity concerned is an international organisation. As can be seen from those provisions, they apply only to ‘entities and persons entrusted with budget implementation tasks pursuant to point (c) of Article 58(1) [of the 2012 Financial Regulation]’. That regulation refers to the Delegated Financial Regulation, Article 43(1) of which provides that ‘the international organisations referred to in point (ii) of Article 58(1)(c) of the [2012] Financial Regulation shall be (a) international public-sector organisations set up by intergovernmental agreements, and specialised agencies set up by such organisations’.

109 In those circumstances, it must be held that, since there were doubts concerning the applicant’s status as an international organisation, the Commission could not entrust the implementation of the budget under indirect management to the applicant, even if it satisfied the other conditions laid down in Article 53d(1) of the 2002 Financial Regulation and in Article 60(2) of the 2012 Financial Regulation, which are set out in paragraph 99 above.

110 The Commission therefore did not infringe Article 53d(1) of the 2002 Financial Regulation and Article 60(2) of the 2012 Financial Regulation by removing the applicant from the implementation of the budget for the project at issue, on the ground that doubts existed as to its status as an international organisation.

111 In the third place, the applicant submits, in the first two pleas in law, (i) that the Commission should have communicated with it before it adopted the contested decision, (ii) that a prudent approach would have consisted in waiting until the OLAF investigation had been completed before removing the applicant and (iii) that the Commission could have changed the method of managing the budget for the project at issue and engaged the applicant directly under a grant procedure.

112 It must be noted, in this respect, that the applicant’s three arguments set out in paragraph 111 above relate to the arguments raised in its third plea in law (see paragraphs 114 to 144 below). They should therefore be examined in the context of the third plea in law.

113 It follows from all the foregoing that all of the complaints raised by the applicant and, accordingly, the first and second pleas in law in their entirety, must be rejected, subject to the arguments mentioned in paragraph 111 above, which will be examined in the third plea in law.

The third plea in law, alleging infringement of the principles of sound financial management and of good administration

114 By its third plea in law, the applicant submits that the Commission infringed the principles of sound financial management and of good administration. This plea in law is divided into two parts.

– The first part of the third plea in law, alleging infringement of the principle of sound financial management

115 The applicant submits, in essence, that, by refusing to entrust the budget for the project at issue to it, even though it had all the necessary experience and skills, the Commission did not implement the budget in the most effective way possible, in accordance with the principle of sound financial management, as laid down in Article 310 TFEU, in Article 27 of the 2002 Financial Regulation and in Articles 6 and 30 of the 2012 Financial Regulation.

117 Under Article 310(5) TFEU, the budget is to be implemented in accordance with the principle of sound financial management.

118 Under Article 30 of the 2012 Financial Regulation, appropriations are to be used in accordance with the principle of sound financial management, namely in accordance with the principles of economy, efficiency and effectiveness.

119 In accordance with Article 60(1) of the 2012 Financial Regulation, the entities and persons entrusted with budget implementation tasks pursuant to point (c) of Article 58(1), namely international organisations, are required to respect the principles of sound financial management, transparency and non-discrimination and are required to ensure the visibility of European Union action when they manage European Union funds. They are required to guarantee a level of protection of the financial interests of the European Union equivalent to that required under that regulation when they manage European Union funds.

120 Under Article 61(2) of the 2012 Financial Regulation, the Commission is to select an international organisation taking due account of the nature of the tasks to be entrusted to that entity, as well as the experience and the operational and financial capacity of the entities concerned.

121 It follows from the provisions set out in paragraphs 117 to 120 above that, in accordance with the principle of sound financial management and in order to protect the financial interests of the European Union, the Commission is required to satisfy itself as to the financial capacity of international organisations to which it entrusts the implementation of the budget under indirect management.

122 In the present case, first, it must be noted that, as the Commission submits, since there were doubts concerning the applicant’s status as an international organisation, that gave rive to doubts as to whether it had the financial support of the States that were allegedly its members. The applicant’s argument that no regulatory provision requires international organisations to dispose of guarantees from the contracting parties that established it must be rejected as unfounded. As the Commission argues, in essence, the mere fact that there were doubts as to the applicant’s status as an international organisation was sufficient to call into question its financial capacity.

123 Moreover, and in any event, it must be noted that, since there were doubts as to whether the applicant satisfied the requirements laid down in Article 58(1)(c) of the 2012 Financial Regulation, the Commission was entitled to consider that, pending clarification of those doubts, the financial interests of the European Union would be better protected if an entity in respect of which no such doubts existed were entrusted with the budget for the project at issue.

124 In those circumstances, the Commission did not infringe the principle of sound financial management by choosing an entity other than the applicant to implement the budget for the project at issue.

125 The other arguments put forward by the applicant do not invalidate that conclusion.

126 First, it is necessary to reject as unfounded the applicant’s arguments that the Commission had demonstrated its confidence in the applicant, in view of the numerous contracts previously concluded between the parties and the fact that the Commission had acknowledged that the applicant was one of the very few organisations with a memorandum of understanding with Myanmar, and that it had incurred substantial costs associated with the implementation of that project. None of those circumstances supports the conclusion that, given the doubts the Commission could have had concerning the applicant’s status as an international organisation, the financial interests of the European Union would have been better protected by choosing the applicant.

127 Secondly, the applicant submits that the Commission wrongly considered that, for reasons of prudence, it had to remove the applicant from the implementation of the project at issue. According to the applicant, the most prudent course of action for the Commission to take would have been to inform the applicant of the new elements justifying its doubts and to await the final conclusions of the OLAF investigation. In that regard, suffice it to point out that, as was noted in paragraph 105 above, the applicant has not established that the Commission erred in considering that there were doubts concerning its status as an international organisation at that stage of the procedure. In those circumstances, contrary to the applicant’s assertions, in order to protect the interest of the European Union, prudence dictated that the applicant be removed from the implementation of the budget for the project at issue for as long as the Commission’s doubts were not dispelled.

128 Thirdly, the applicant’s argument that the Commission could have changed the method of management of the project at issue from indirect management to direct management by awarding grants in favour of the applicant must be rejected as unfounded.

129 Contrary to the applicant’s assertion, no provision requires the Commission to change the method of management that it has initially chosen as being the most appropriate on the sole ground that the entity initially chosen no longer satisfies the relevant legal conditions.

130 Moreover, and in any event, the applicant has not established that it was preferable that the Commission appoint the applicant rather than GIZ despite the doubts as regards the applicant’s status. For that reason, it is not necessary to rule on the question whether the Commission should have, or could have, organised a call for tenders in order to award grants to the applicant.

131 For all of those reasons, the first part of the third plea in law must be rejected as unfounded.

– The second part of the third plea in law, alleging infringement of the principle of good administration

132 The applicant submits, in essence, that the Commission infringed the principle of good administration, since it did not consult the applicant before adopting the contested decision and did not inform the applicant of the measures that it should have taken in order to dispel the Commission’s doubts.

134 Under Article 41(2) of the Charter of Fundamental Rights of the European Union, the right to good administration includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken.

135 In the present case, first, it must be noted that, on 25 April 2014, the Director General sent a letter to the applicant in which he noted that the Commission had exchanged a number of letters with the applicant, from 16 December 2013 to 4 April 2014, in order to allow the applicant to establish that it constituted an international organisation, in view of the doubts expressed in paragraph 85 above.

136 Secondly, by letter of 17 June 2014, OLAF informed the applicant that it was opening an investigation in which the latter was regarded as being a person concerned. According to OLAF, that investigation related to possible irregularities in the attribution of EU funds to the applicant, linked to its legal status.

137 Thirdly, by letter of 11 July 2014, the Director General responded to letters of the applicant of 15 May 2014 and 10 June 2014, in which the latter requested clarification of the new elements concerning its legal status set out in the Commission’s letter of 25 April 2014. In that letter of 11 July 2014, the Director General noted, first of all, that the applicant was a person concerned in the OLAF investigation. He then indicated that OLAF would remain, on behalf of the Commission, the applicant’s sole interlocutor for questions relating to the applicant’s legal status.

138 It follows from the letters referred to in paragraphs 135 to 137 above that the Commission gave the applicant the opportunity to present its point of view on the Commission’s doubts regarding the applicant’s legal status, while seeking to protect the confidential nature of the OLAF investigation, which, moreover, the applicant does not call into question.

139 Furthermore, and in any event, it must be recalled that, according to settled case-law, it is for the Court to verify, when it considers that a procedural defence exists, whether, depending on the specific factual and legal circumstances of the case, the administrative procedure in question could have had a different outcome if the applicant had been better able to defend itself in the absence of that irregularity (see, to that effect, judgment of 8 October 2015, Secolux v Commission, T‑90/14, not published, EU:T:2015:772, paragraph 34 and the case-law cited). In the present case, however, the applicant has not put forward any argument to support the conclusion, and nor does it follow from the case file before the Court, that, if the Commission had informed the applicant of its intention to adopt the contested decision, the outcome of the procedure would have been different, in view of the doubts concerning the applicant’s status as an international organisation.

140 The arguments which the applicant puts forward in that regard cannot succeed.

141 First, the applicant’s argument that the absence of an appropriate statement of reasons allowing it to understand why it had been removed from the implementation of the budget for the project at issue constitutes a breach of the principle of good administration is based, in any event, on an erroneous premiss. As noted in the examination of the sixth plea in law (see paragraph 89 above), the applicant was aware of the reasons for which the Commission adopted the contested decision. In those circumstances, that argument must be rejected as unfounded.

142 Secondly, the applicant’s argument that the Commission never informed it of the new elements mentioned in its letter of 25 April 2014 must be rejected as unfounded. Although, in order to protect the confidentiality of the OLAF investigation, the Commission did not set out those new elements, the fact nonetheless remains that the applicant was aware of the reasons, referred to in paragraph 85 above, for which the Commission considered that there were doubts concerning its legal status.

143 Thirdly, in so far as the applicant submits that the Commission failed to inform it that the original implementing decision could be revised, first, it must be noted that the contested decision is the direct consequence of the Commission’s finding — of which it had informed the applicant — that there were doubts as to whether the applicant was an international organisation. In those circumstances, it must be held that the applicant was informed that, in the absence of clarifications, it could not be entrusted with the implementation of the budget for the project at issue. Furthermore, as indicated in paragraph 139 above, even if the Commission should have informed it of the adoption of the contested decision, it is nevertheless the case that the applicant has not put forward any argument, and nor does it appear from the case file before the Court, that, if the Commission had informed the applicant of its intention to adopt the contested decision, the outcome of the procedure would have been different. That argument must therefore be rejected as either unfounded or ineffective.

144 In the light of the foregoing, it must be concluded that the second part of the third plea in law as well as the arguments raised by the applicant in paragraph 111 above, and, consequently, the third plea in law in its entirety must be rejected as unfounded.

145 The applicant submits that the Commission infringed the principle of transparent implementation of the budget since it neither consulted, nor informed, the applicant before adopting the contested decision. It thus infringed the 2002 Financial Regulation and the 2012 Financial Regulation, the Delegated Financial Regulation and Regulation (EC) No 1905/2006 of the European Parliament and of the Council of 18 December 2006 establishing a financing instrument for development cooperation (OJ 2006 L 378, p. 41).

147 First of all, it must be pointed out that, under Article 6 and Article 34(1) of the 2012 Financial Regulation, the Commission is to establish and implement the budget transparently.

148 Next, in accordance with Article 35(2) of the 2012 Financial Regulation, concerning the principle of transparency, the Commission is required to make available information on the amounts and the recipients of EU funds. The objective, as can be seen from recital 16 of the 2012 Financial Regulation, is to allow citizens ‘to know where, and for what purpose, funds are spent by the Union’.

149 Article 22 of the Delegated Financial Regulation, establishing detailed specific rules relating to the publication of information on recipients, is worded as follows:

‘Where the management of Union funds is delegated to the authorities and bodies referred to in Article 58(1)(c) of the Financial Regulation, the delegation agreements shall require that information [on the recipients of the funds] is published according to a standard presentation, by those entrusted authorities and bodies on their website.

The internet site of the Union institutions shall contain a reference at least [to] the address of the website where the information can be found ....’

150 Lastly, with regard to budgetary matters, the obligation of transparency, which is the corollary of the principle of equal treatment, is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the budgetary authority (see, to that effect, judgment of 15 April 2011, IPK International v Commission, T‑297/05, EU:T:2011:185, paragraph 124).

151 In the present case, it must be noted that it does not follow from the provisions and principles set out in paragraphs 147 to 150 above that the Commission was required, pursuant to the principle of transparency, to inform the applicant or to consult it before adopting the contested decision. The obligation of transparency becomes effective only as from the conclusion of a delegation agreement, in order to allow citizens ‘to know where, and for what purpose, funds are spent by the Union’.

152 In view of the foregoing, it must be concluded that the Commission did not fail to fulfil its obligation to implement the budget transparently.

The fifth plea in law, alleging infringement of Article 97 of the 2012 Financial Regulation

154 The applicant submits that the Commission infringed Article 97 of the 2012 Financial Regulation by failing to inform it of the means of redress allowing it to challenge the contested decision. That infringement cannot be characterised as a minor procedural irregularity.

‘Where a procedural act of an Authorising Officer adversely affects the rights of an applicant or tenderer, beneficiary or contractor, it shall contain an indication of the available means of administrative and/or judicial redress for challenging this act.

In particular, the nature of the redress, the body or bodies before which it can be brought, as well as time limits for their exercise shall be indicated.’

157 In the present case, it must be noted, first of all, that, contrary to the Commission’s assertions, the contested decision, which alters the applicant’s legal situation, as noted in paragraph 64 above, adversely affects its rights within the meaning of Article 97 of the 2012 Financial Regulation.

158 Furthermore, the Commission does not dispute the fact that, in the contested decision, it did not indicate to the applicant the possible means of redress against that decision.

159 Lastly, it must be pointed out that the applicant brought the present action against the contested decision.

160 In those circumstances, it must be noted that, even though the Commission did not respect its obligation, resulting from Article 97 of the 2012 Financial Regulation, to inform the applicant of the existence of a means of redress, that failure did not deprive the applicant of the effective exercise of its right of appeal.

161 Accordingly, it must be concluded that, in line with what the Commission submits, the Commission committed a procedural irregularity which cannot, however, give rise to the annulment of the contested decision, since the applicant exercised its right of redress effectively.

The seventh plea in law, alleging infringement of the principle of the protection of legitimate expectations

163 The applicant submits, in essence, that the Commission disregarded its legitimate expectation that it would conclude the delegation agreement, in accordance with the original implementation decision.

165 According to settled case-law, the right to rely on the principle of the protection of legitimate expectations extends to any person in a situation in which an EU institution has caused him to entertain expectations which are justified. However, a person may not plead infringement of the principle unless he has been given precise assurances by the administration (judgments of 22 June 2006, Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 147, and of 14 October 2010, Nuova Agricast and Cofra v Commission, C‑67/09 P, EU:C:2010:607, paragraph 71).

166 In whatever form it is given, information which is precise, unconditional and consistent and comes from authorised and reliable sources constitutes assurances capable of giving rise to such expectations (see judgment of 14 March 2013, Agrargenossenschaft Neuzelle, C‑545/11, EU:C:2013:169, paragraph 25 and the case-law cited).

167 In the present case, it must be pointed out that, as the Commission submits, in the original implementing decision the applicant was selected to be the entity that would conclude, should the case arise, the delegation agreement with the Commission. However, that precise assurance which the applicant received that it would conclude, should the case arise, the delegation agreement was based on the premiss that it satisfied, and would continue to satisfy, the conditions laid down for the implementation of the budget for the project at issue through joint management. Since there were doubts in that respect, the applicant could no longer rely on that assurance given by the Commission. Thus, even though, as the applicant submits, the Commission, in 2013, characterised the applicant as the ‘leading organisation’ for the project at issue, and the applicant had conducted a mission to Myanmar at the request of the Commission, those factors cannot invalidate the finding, made in paragraph 110 above, according to which the Commission was entitled to consider that its doubts concerning the applicant’s status as an international organisation called into question whether it would conclude the delegation agreement with the applicant.

168 In those circumstances, it must be held that, contrary to the applicant’s assertion, the Commission did not infringe the principle of the protection of legitimate expectations.

170 The applicant asks the Court to order the Commission to produce certain documents, namely the final OLAF report and the note from the Commission’s Legal Service of 15 January 2015 accompanying that report. The applicant points out that OLAF refused to grant it access to that report, which it contested in the action that it brought in the case which gave rise to the judgment of 26 May 2016, International Management Group v Commission (T‑110/15, EU:T:2016:322). Furthermore, since that report was secretly published on the internet, the applicant argues that that publication, without the relevant note of the Legal Service, is harmful to its reputation and to its position before the Court.

172 In that respect, suffice it to note that, as the Commission submits, the contested decision was taken before the adoption of the final OLAF report and the note of the Commission’s Legal Service of 15 January 2015. Accordingly, the examination of those documents cannot call into question the legality of the contested decision, which, in the context of an action for annulment, must be assessed in the light of the factual elements available to the Commission when that decision was adopted.

173 For that reason, the applicant’s request for the production of documents must be rejected.

174 It follows from all of the foregoing considerations that the seven pleas in law raised by the applicant and its request for the production of documents must be rejected and, accordingly, the action must be dismissed in its entirety.

175 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.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> International Management Group v Commission (Judgment) [2017] EUECJ T-29/15 (02 February 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/T2915.html Cite as: EU:T:2017:56, [2017] EUECJ T-29/15, ECLI:EU:T:2017:56

Court of Justice of the European Communities (including Court of First Instance Decisions)