International Management Group v Commission (Development cooperation - EU budget implementation by indirect management - Judgment) [2019] EUECJ C-183/17P (31 January 2019)

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(Appeal — Development cooperation — EU budget implementation by indirect management — Action for annulment — Admissibility — Challengeable acts — Decision to entrust a budget implementation task to an entity other than the entity initially chosen — Decision not to entrust any new budget implementation tasks to the entity initially chosen — Regulation (EC, Euratom) No 2342/2002 — Article 43 — Delegated Regulation (EU) No 1268/2012 — Article 43 — Definition of ‘international organisation’ — Conditions — Claim for damages)

TWO APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, lodged on 11 April 2017, by

International Management Group, established in Brussels (Belgium), represented by L. Levi and J.-Y. de Cara, avocats,

European Commission, represented by F. Castillo de la Torre and J. Baquero Cruz, acting as Agents,

composed of M. Vilaras, President of the Fourth Chamber, acting as President of the Third Chamber, J. Malenovský (Rapporteur), L. Bay Larsen, M. Safjan and D. Šváby, Judges,

having regard to the written procedure and further to the hearing on 13 June 2018,

after hearing the Opinion of the Advocate General at the sitting on 27 September 2018,

1 By its appeals, International Management Group (‘IMG’) seeks to have set aside the judgments of the General Court of the European Union of 2 February 2017, International Management Group v Commission (T‑29/15, not published, ‘the judgment under appeal in Case T‑29/15’, EU:T:2017:56), and of 2 February 2017, International Management Group v Commission (T‑381/15, not published, ‘the judgment under appeal in Case T‑381/15’, EU:T:2017:57) (together, ‘the judgments under appeal’), by which that court dismissed its actions seeking (i) in Case T‑29/15, annulment of Commission Implementing Decision C(2014) 9787 final of 16 December 2014, amending Implementing Decision C(2013) 7682 on the Annual Action Programme 2013 in favour of Myanmar/Burma to be financed from the general budget of the European Union (‘the decision of 16 December 2014’), and (ii) in Case T‑381/15, annulment of the decision of the European Commission contained in its letter to IMG of 8 May 2015 (‘the decision of 8 May 2015’, and, together with the decision of 16 December 2014, ‘the decisions at issue’) and compensation for the damage caused by the decision of 8 May 2015.

2 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), as amended by Council Regulation (EC, Euratom) No 1995/2006 of 13 December 2006 (OJ 2006 L 390, p. 1) (‘Regulation No 1605/2002’), was repealed with effect from 1 January 2013 by 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 Regulation No 1605/2002 (OJ 2012 L 298, p. 1). However, Article 212(a) of Regulation No 966/2012 provided, inter alia, that Articles 53 and 53d of Regulation No 1605/2012 would continue to apply to all commitments made up to 31 December 2013.

‘The Commission shall implement the budget in accordance with the provisions set out in Articles 53a to 53d in any of the following ways:

‘1. Where the Commission implements the budget by joint management, certain implementation tasks shall be delegated to international organisations ...

2. Individual agreements concluded with international organisations for the award of financing shall contain detailed provisions for the implementation of the tasks entrusted to such international organisations.

5 Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002 (OJ 2002 L 357, p. 1), as amended by Commission Regulation (EC, Euratom) No 478/2007 of 23 April 2007 (OJ 2007 L 111, p. 13) (‘Regulation No 2342/2002’, and, together with Regulation No 1605/2002, ‘the 2002 Financial Regulation’), was repealed with effect from 1 January 2013 by Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation No 966/2012 (OJ 2012 L 362, p. 1) (together with Regulation No 966/2012, ‘the 2012 Financial Regulation’).

6 Article 43 of Regulation No 2342/2002, entitled ‘Joint management’, provided, in paragraph 2 thereof, as follows:

‘The international organisations referred to in Article 53d of [Regulation No 1605/2002] shall be:

(a) international public sector organisations set up by intergovernmental agreements, and specialised agencies set up by such organisations;

7 In accordance with the first paragraph of Article 214 of Regulation No 966/2012, that regulation entered into force on 27 October 2012. It has been applicable since 1 January 2013, in accordance with the second paragraph of that article, without prejudice to the dates of specific application provided in respect of other articles of that regulation.

8 Those other articles include Article 58, entitled ‘Methods of implementation of the budget’, which is applicable only to commitments made as from 1 January 2014. The first paragraph of that article is worded as follows:

9 For their part, Articles 84 to 86 of Regulation No 966/2012 have been applicable since 1 January 2013.

10 Pursuant to Article 84 of that regulation, entitled ‘Financing decisions’:

‘1. Every item of expenditure shall be committed, validated, authorised and paid.

2. Except in the case of appropriations which can be implemented without a basic act ... the commitment of the expenditure shall be preceded by a financing decision adopted by the institution or the authorities to which powers have been delegated 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.

‘A budgetary commitment is the operation by which the appropriation necessary to cover subsequent payments to honour legal commitments is reserved.

A legal commitment is the act whereby the authorising officer enters into or establishes an obligation which results in a charge.

12 Article 86 of that regulation, entitled ‘Rules applicable to commitments’, provides, in paragraph 1 thereof:

‘In respect of any measure which may give rise to expenditure chargeable to the budget, the authorising officer responsible shall make a budgetary commitment before entering into a legal commitment with third parties ...’

13 Article 43 of Delegated Regulation No 1268/2012, entitled ‘Specific provisions for indirect management with international organisations’, provides, in paragraph 1 thereof:

‘The international organisations referred to in point (ii) of Article 58(1)(c) of [Regulation No 966/2012] shall be:

(a) international public sector organisations set up by intergovernmental agreements, and specialised agencies set up by such organisations;

14 Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (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), entered into force on 1 October 2013.

15 Article 7 of that regulation, entitled ‘Investigations procedure’, provides, in paragraph 6 thereof:

‘Where investigations show that it might be appropriate to take precautionary administrative measures to protect the financial interests of the Union, [OLAF] shall without delay inform the institution, body, office or agency concerned of the investigation in progress. The information supplied shall include the following:

The institution, body, office or agency concerned may at any time decide to take, in close cooperation with [OLAF], any appropriate precautionary measures, including measures for the safeguarding of evidence, and shall inform [OLAF] without delay of such decision.’

16 According to its statute, as included in the Court’s case file, IMG was established on 25 November 1994 as an international organisation named ‘International Management Group — Infrastructure for Bosnia and Herzegovina’, with its headquarters in Belgrade (Serbia), in order to provide the States participating in the reconstruction of Bosnia and Herzegovina with an entity specifically created for that purpose. Since then, IMG has gradually broadened the scope of its activities and, on 13 June 2012, concluded an agreement concerning the seat of the organisation with the Kingdom of Belgium.

17 On 7 November 2013, the 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 initial decision’) on the basis of Article 84 of Regulation No 966/2012.

18 Article 1 of that decision provides that the Annual Action Programme 2013 in favour of Myanmar/Burma, as set out in Annexes 1 and 2 to the decision, is approved.

19 Article 3 of the decision provides that budget tasks implemented by joint management may be entrusted to the entities referred to in Annexes 1 and 2 to the decision, subject to the conclusion of a delegation agreement.

20 Annex 2 to the decision describes the second action constituting the Action Programme 2013 in favour of Myanmar/Burma. Sections 5 and 8 of that annex state, in essence, that the action is to take the form of a programme for trade development the cost of which, estimated at EUR 10 million, will be financed by the European Union and implemented by joint management with IMG. Point 8.3.1 of the annex states that IMG is an international organisation already established in Myanmar/Burma and associated with the implementation of projects financed by the European Union in that State.

21 On 17 February 2014, OLAF informed the Commission that it had opened an investigation relating to IMG’s status.

22 On 24 February 2014, the Secretary-General of the Commission forwarded that information to the Director-General for International Cooperation and Development of that institution, drawing his attention to the possibility of adopting precautionary measures on the basis of Article 7(6) of Regulation No 883/2013.

23 On 26 February 2014, that Director-General adopted precautionary measures on the basis of that provision, on the ground that OLAF’s initial analysis had given rise to uncertainty regarding IMG’s status (‘the precautionary measures of 26 February 2014’). Those measures consisted, in essence, of a temporary prohibition on (i) concluding any new delegation agreement with IMG for indirect management of the EU budget on the basis of Regulation No 966/2012 and (ii) extending any delegation agreement previously concluded with IMG for joint management of the EU budget on the basis of Regulation No 1605/2002.

24 On 25 April 2014, that Director-General sent a letter to IMG (‘the letter of 25 April 2014’), in which he informed it of three new items of information in the Commission’s file, relating to the fact that (i) five Member States presented by IMG as being its members did not consider themselves to be members, (ii) the Secretary-General of the United Nations (UN) had stated that IMG was not a specialist UN agency, and (iii) there was some doubt regarding the powers of the persons who had represented certain States when the act establishing IMG was signed. The Commission’s Director-General for International Cooperation and Development also indicated that, in the light of the doubts raised by those factors regarding IMG’s status, he had instructed his departments to suspend on a temporary basis, as far as IMG was concerned, recourse to procedures by which budgetary tasks are implemented by international organisations.

25 On 15 December 2014, the Commission received the report drawn up by OLAF following its investigation (‘the OLAF report’), together with a number of recommendations. In that report, OLAF stated, in essence, that IMG was not an international organisation for the purposes of the 2002 and 2012 Financial Regulations, and recommended that the Commission impose sanctions on IMG and recover the amounts paid to IMG in that capacity.

26 On the following day, the Commission adopted the decision of 16 December 2014, on the basis of Article 84 of Regulation No 966/2012. Pursuant to Article 1 of that decision, Annex 2 to the initial decision was replaced by a new annex, Sections 1 and 4.3 of which state, in essence, that the trade development programme provided for by the initial decision would be implemented by indirect management, no longer by IMG, but by Deutsche Gesellschaft für Internationale Zusammenarbeit GmbH (‘GIZ’).

27 On 16 January 2015, the Legal Service of the Commission drew up a note entitled ‘Legal analysis of the [OLAF report] [in the] investigation [...] concerning [IMG]’ (‘the Legal Service note’).

28 On 8 May 2015, the Commission sent a letter to IMG informing it of how it intended to follow up on the OLAF report, in which it stated that, although it would not act on the majority of the recommendations made by OLAF, it had decided, inter alia, that, until there was absolute certainty regarding IMG’s status as an international organisation, its department would not enter into any new delegation agreement with IMG based on the indirect management with an international organisation model provided for by Regulation No 966/2012. It is that part of the letter that constitutes the decision of 8 May 2015 referred to in paragraph 1 above.

29 By application lodged at the General Court Registry on 21 January 2015 and registered as Case T‑29/15, IMG brought an action for annulment of the decision of 16 December 2014.

30 By document lodged at the General Court Registry on 24 March 2015, the Commission raised a plea that the action was inadmissible, claiming that the decision of 16 December 2014 did not constitute an act open to challenge, on account of the fact that it produced no binding legal effects and merely confirmed the letter of 25 April 2014, which had informed IMG of the existence of the precautionary measures of 26 February 2014.

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

32 On 2 February 2017, the General Court delivered the judgment under appeal in Case T‑29/15, by which it dismissed IMG’s action and ordered it to pay the costs. In that context, it considered, in the first place, in paragraphs 28 to 78 of the judgment, that the objection of inadmissibility raised by the Commission was unfounded, as the decision of 16 December 2014 had produced binding legal effects, in that, first, it had definitively deprived IMG of the possibility of concluding a delegation agreement and, second, that decision did not merely confirm the letter of 25 April 2014, with the result that the action brought by IMG against that decision had to be declared admissible. In the second place, in paragraphs 79 to 169 and 174 of the judgment, the General Court considered that none of the seven pleas raised by IMG could succeed and its action therefore had to be dismissed as unfounded.

33 By application lodged at the General Court Registry on 14 July 2015 and registered as Case T‑381/15, IMG brought an action seeking annulment of the decision of 8 May 2015 and compensation for the damage caused by that decision.

34 By document lodged at the General Court Registry on 25 September 2015, the Commission raised plea that the action was inadmissible, claiming that the decision of 8 May 2015 did not constitute an act open to challenge, on account, inter alia, of the fact that it produced no binding legal effects.

35 By order of the General Court of 29 January 2016, the decision on that plea and the decision on costs were reserved for the final judgment.

36 On 2 February 2017, the General Court delivered the judgment under appeal in Case T‑381/15, by which it found that there was no need to adjudicate on part of IMG’s action, dismissed the action as to the remainder and ordered IMG to pay the costs. In that context, it considered, first of all, in paragraphs 41 to 53 and 75 of that judgment, that the decision of 8 May 2015 had produced binding legal effects, as it had deprived IMG of the possibility of being entrusted with new budget implementation tasks based on the indirect management with an international organisation model laid down in Article 58(1) of Regulation No 966/2012, and that IMG’s action for annulment was therefore admissible. Next, in paragraphs 76 to 160 of the judgment, the General Court considered that none of the eight pleas raised by IMG could succeed and its action therefore had to be dismissed as unfounded. Lastly, in paragraphs 170 to 173 of the judgment, the General Court rejected IMG’s claim for damages as unfounded.

37 Moreover, in paragraphs 174 to 184 of the judgment under appeal in Case T‑381/15, the General Court ruled on a request by the Commission that two documents produced by IMG, namely the OLAF report and the Legal Service note, be removed from the case file. It rejected the request as regards the first document in question and granted it as regards the second.

– set aside the judgment under appeal in Case T‑29/15 in so far as it dismissed its action for annulment as unfounded;

– give final judgment in the proceedings by annulling the decision of 16 December 2014; and

– order the Commission to pay the costs incurred both at first instance and at the appeal stage.

– set aside the judgment under appeal in Case T‑381/15 in so far as it dismissed its action for annulment as unfounded;

– give final judgment in the proceedings by annulling the decision of 8 May 2015 and ordering the European Union to pay compensation for the damage caused by that decision; and

– order the Commission to pay the costs incurred both at first instance and at the appeal stage.

40 The Commission contends that the Court should dismiss both appeals and order IMG to pay the corresponding costs.

41 Moreover, the Commission brought two cross-appeals, by which it claims that the Court should:

– in both cases, set aside the judgments under appeal in so far as they rejected its objections of inadmissibility, give final judgment in the proceedings by dismissing the actions as inadmissible and order IMG to pay the costs;

– in Case C‑184/17 P, order, in addition, that the OLAF report be removed from the case file.

42 IMG contends that the Court should dismiss the cross-appeals and order the Commission to pay the costs of the cross-appeals.

43 By letter of 8 February 2018, the parties were requested to submit their observations on the potential joinder of the cases for the purpose of the oral part of the procedure and the Court’s decision. IMG responded by stating that it had no objections to the joinder. The Commission did not respond within the prescribed period.

44 By decision of 20 March 2018, after hearing the Judge-Rapporteur and the Advocate General, the cases were joined for the purpose of the oral part of the procedure and the Court’s decision.

45 The Commission submits, in the first place, that the General Court was incorrect to consider, in paragraphs 57 to 63 of the judgment under appeal in Case T‑29/15 and paragraphs 44 to 48 of the judgment under appeal in Case T‑381/15, that the decisions at issue had produced binding legal effects in so far as they had deprived IMG of the possibility of concluding any new delegation agreements for the indirect management of projects financed by the EU budget. Admittedly, the decision of 16 December 2014 amended the initial decision by replacing IMG with GIZ as the designated entity with a view to concluding a specific delegation agreement, and the decision of 8 May 2015 indicated that the Commission intended not to conclude any new delegation agreements with IMG. The fact remains that, according to the Commission, IMG did not have any right to have such agreements concluded with it, from which it should be inferred that the decisions at issue had, at most, factual effects vis-à-vis IMG.

46 In the second place, the Commission submits that, contrary to the General Court’s findings in paragraphs 49 to 52 of the judgment under appeal in Case T‑29/15, a financing decision, such as the decision of 16 December 2014, must be regarded as a purely internal act which does not produce any binding legal effect vis-à-vis third parties.

47 In the third and final place, the Commission alleges that the Court was wrong to find that the decision of 16 December 2014 was not a measure which merely confirms the letter of 25 April 2014 by which IMG had been informed of the adoption of the precautionary measures of 26 February 2014. That decision contained no new factual or legal elements, contrary to the General Court’s finding in paragraphs 70 to 73 of the judgment under appeal in Case T‑29/15. In addition, although those precautionary measures and that decision have different legal bases and were adopted in different procedures, as stated by the General Court in paragraphs 74 to 76 of that judgment, the fact remains that the decision was the direct and automatic consequence of the measures.

48 Moreover, in its cross-appeal in Case C‑184/17 P, the Commission claims that IMG should not have been granted access to the OLAF report.

49 Consequently, it requests the Court to remove that report from the case file.

51 As regards, in the first place, the Commission’s arguments referred to in paragraph 45 above based on its claim that the decisions at issue do not have binding legal effects, it is settled case-law that any provision or measure adopted by EU institutions, bodies, offices and agencies, whatever form they might take, the legal effects of which are binding on, and capable of affecting the interests of, a natural or legal person by bringing about a distinct change in their legal position may be the subject of an action for annulment (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 54; and of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 37).

52 In the present case, as regards the decision of 16 December 2014, the General Court first of all noted, in paragraphs 37 to 42 of the judgment under appeal in Case T‑29/15, which are not disputed by the Commission, that that decision was a financing decision adopted by that institution on the basis of Article 84 of Regulation No 966/2012 and that not only the legal effect but also the purpose of that decision was to amend the initial decision by designating GIZ, instead of IMG, as the entity entrusted with implementing the trade development action provided for in the 2013 action programme for Myanmar/Burma.

53 In carrying out that analysis, the General Court noted, inter alia, in paragraph 38 of that judgment, that it was common ground between the parties that the initial decision designated IMG as the entity entrusted ‘subject to the conclusion of a delegation agreement’.

54 Taking those various factors into account, the General Court went on to find, in paragraphs 44 to 48 and 57 to 63 of that judgment, that the decision of 16 December 2014 produced a binding legal effect capable of affecting IMG’s interests by depriving it of any possibility of concluding such a delegation agreement.

55 In that regard, it should be noted that Article 84(2) of Regulation No 966/2012, on the basis of which both the initial decision and the decision of 16 December 2014 were adopted, provides that the commitment of expenditure must be preceded by such decisions. As for that commitment, it is, as is apparent from Article 85(1) and Article 86(1) of that regulation, the operation by which the authorising officer first makes a budgetary expenditure commitment before entering into a legal commitment with the third party who will receive the payments implementing that expenditure. Consequently, the Commission is correct in claiming that no legal commitment had been entered into with IMG when the decision of 16 December 2014 was adopted and, therefore, IMG did not have any right to have a delegation agreement concluded with it.

56 Nevertheless, as stated by the General Court in paragraphs 42 and 59 of the judgment under appeal in Case T‑29/15, the fact remains that a decision to commit expenditure, in accordance with Article 84(3) of Regulation No 966/2012, must ‘specify the entity or person entrusted ..., the criteria used to select the entity or person and the tasks entrusted to that entity or person’. The initial decision had thus selected IMG as the entity entrusted with one of the actions stipulated in the 2013 action programme for Myanmar/Burma.

57 In addition, it follows from Article 53d(2) of Regulation No 1605/2002, which was applicable when the initial decision was adopted, that the purpose of a delegation agreement, such as that referred to in that decision, is to set out detailed arrangements for the implementation of the budgetary tasks previously entrusted in a given case to an international organisation. The conclusion of that agreement must therefore necessarily be preceded by the adoption of a financing decision entrusting that organisation with such tasks and can be concluded with that organisation alone. By the same token, if an entity entrusted with the tasks in question loses that status, the automatic consequence is the loss of the possibility of concluding the corresponding delegation agreement. As it is, the specific purpose and legal effect of the decision of 16 December 2014 was to designate GIZ as the entity entrusted in order to enable the Commission to conclude a delegation agreement with that entity instead of with IMG.

58 In those circumstances, the General Court was fully entitled to hold, in paragraphs 44, 45, 57, 59, 60 and 62 of the judgment under appeal in Case T‑29/15, that the decision of 16 December 2014 led to IMG losing both its legal status as the selected entity entrusted with a budgetary task and any genuine possibility of concluding the corresponding delegation agreement.

59 The loss of such legal status clearly constitutes a binding legal effect capable of affecting IMG’s interests. As for the loss of any genuine possibility of concluding the corresponding delegation agreement, it is the automatic consequence of the loss of that legal status, as stated in paragraph 57 above, and therefore also constitutes a binding legal effect on that basis.

60 Therefore, the ground raised by the Commission in support of its cross-appeal in Case C‑183/17 P, in so far as it alleges that the decision of 16 December 2014 had no binding legal effect, must be rejected as unfounded.

61 As far as concerns the decision of 8 May 2015, it should be noted at the outset that it does not express a future intention, even though the Commission claims that such is the case, but an existing, current decision not to conclude any delegation agreement ‘until there is absolute certainty with regard to IMG’s legal status as an international organisation’. In that respect, it deprives the party concerned of any real chance of being entrusted with new budget implementation tasks and granted the corresponding funding in connection with the indirect management of the EU budget, as stated by the General Court in paragraphs 44 and 45 of the judgment under appeal in Case T‑381/15.

62 The Court has previously held that, when the effect of a decision adopted by the Commission when exercising its own powers against a specific person is, simply because that act was adopted, to cause that person to lose any chance of actually receiving EU funding, that effect should be regarded as a legally binding effect of that decision (see, to that effect, judgment of 22 April 1997, Geotronics v Commission, C‑395/95 P, EU:C:1997:210, paragraphs 14 and 15).

63 Therefore, in so far as it alleges that the decision of 8 May 2015 had no binding legal effect, the ground raised by the Commission in support of its cross-appeal in Case C‑184/17 P must also be rejected as unfounded.

64 As regards, in the second place, the Commission’s reasoning set out in paragraph 46 above, according to which a financing decision, such as that in question in the present cases, should have been regarded as an act which does not produce any binding legal effect vis-à-vis third parties, it should be borne in mind that it is settled case-law that measures that are only intended to produce legal effects within the EU institution, body, office or agency which adopted the measure may not, in principle, be the subject of an action for annulment under Article 263 TFEU (see, to that effect, judgments of 25 February 1988, Les Verts v Parliament, 190/84, EU:C:1988:94, paragraph 8, and of 6 April 2000, Spain v Commission, C‑443/97, EU:C:2000:190, paragraph 28).

65 In the present case, it is, however, sufficient to note that, since the General Court was fully entitled to consider that the decision of 16 December 2014 was intended to produce binding legal effects vis-à-vis IMG, on the grounds set out in paragraphs 57 to 59 above, it cannot be claimed that that court erred in law by rejecting as unfounded, in paragraphs 49 to 52 of the judgment under appeal in Case T‑29/15, the Commission’s argument that that decision produced effects only within the Commission.

66 In the third and final place, the Commission submits, as stated in paragraph 47 above, that the decision of 16 December 2014 should have been classified as ‘a measure which merely confirms an earlier measure’, that is, the letter of 25 April 2014 informing IMG that the precautionary measures of 26 February 2014 had been adopted.

67 In that regard, a measure is to be regarded as merely confirming an earlier measure when it contains no new factual or legal elements as compared with the earlier measure (see, to that effect, judgments of 14 April 1970, Nebe v Commission, 24/69, EU:C:1970:22, paragraph 8, and of 3 April 2014, Commission v Netherlands and ING Groep, C‑224/12 P, EU:C:2014:213, paragraph 69).

68 In the present case, the General Court considered, in paragraphs 70 to 73 of the judgment under appeal in Case T‑29/15, that, although the examination of the content of the precautionary measures of 26 February 2014 showed that their effect was to temporarily suspend the conclusion with IMG of any delegation agreement such as that referred to in the initial decision, it was apparent from the analysis of the decision of 16 December 2014 that the binding legal effect of its content was to deprive IMG, specifically and definitively, of the possibility of concluding such an agreement.

69 In so doing, the General Court highlighted the new factual and legal elements specific to the decision of 16 December 2014, as compared with the precautionary measures of 26 February 2014.

70 Therefore, in so far as it alleges that the decision of 16 December 2014 was ‘a measure which merely confirms an earlier measure’, the ground raised by the Commission in support of its cross-appeal in Case C‑183/17 P must be rejected as unfounded.

71 Since none of the grounds raised by the Commission in support of its cross-appeals have been successful, those appeals must be dismissed in their entirety.

72 Moreover, there is no need to adjudicate on the Commission’s request that the OLAF report be removed from the case file, as that request has become devoid of purpose, as the Commission informed the Court at the hearing that it had disclosed the report to IMG on its own initiative.

73 In support of its appeals seeking to have set aside the judgments under appeal in so far as those judgments dismissed its actions for annulment as unfounded, IMG raises four grounds in Case C‑183/17 P and five grounds in Case C‑184/17 P, respectively. It also raises various complaints concerning the General Court’s ruling on certain procedural documents in the case files.

74 Moreover, in support of its appeal seeking to have set aside the judgment under appeal in Case T‑381/15 in so far as it dismissed its claim for damages as unfounded, IMG raises a sixth ground of appeal in Case C‑184/17 P.

75 It is appropriate to begin by examining the second ground of appeal raised by IMG in each of the joined cases.

76 IMG submits, in the first place, that the General Court erred in law by finding that the Commission had not erred in law or made a manifest error of assessment by adopting the decisions at issue on the grounds of the institution’s doubts regarding IMG’s status as an international organisation within the meaning of the 2002 and 2012 Financial Regulations. The factors put forward by the Commission to justify its doubts concern only part of IMG’s 16 members, not the status of the entity as an international organisation within the meaning of those regulations as such.

77 In the second place, it claims that the General Court distorted the clear sense of the evidence by summarily rejecting IMG’s arguments challenging the merits of the decisions at issue, instead of examining the large amount of evidence produced by IMG in the annexes to its pleadings (statute, memorandum of association, agreement concerning the seat of the organisation with the Kingdom of Belgium, statements made by ambassadors, etc.) in order to prove its status as an international organisation. That evidence, which IMG claims was available to the Commission when it adopted the decisions at issue, show that IMG is an international public sector organisation, established in 1994 on the basis of an intergovernmental agreement concluded by 16 States and the European Community Humanitarian Office (ECHO), following a meeting of a working group of the United Nations High Commissioner for Refugees, in order to provide the States participating in the reconstruction of Bosnia and Herzegovina with an entity specifically created for that purpose.

78 In response to that argument, the Commission contends that the question to be answered in order to review the legality of the judgments under appeal is not whether IMG is an international organisation within the meaning of the 2002 and 2012 Financial Regulations, but rather whether, in the light of the doubts it had in that regard, the institution was entitled to decide no longer to entrust it with budget implementation tasks on the basis that it enjoyed such status. In that connection, according to the Commission, IMG’s arguments set out in paragraph 76 above merely dispute the General Court’s assessment of the facts and evidence and should, as such, be rejected as inadmissible, because they fall outside the Court’s powers of review on appeal. In addition, the argument that the evidence relied on by the Commission in order to justify the doubts it expressed in the decisions at issue concern only part of IMG’s 16 members was not raised at first instance and should therefore be rejected as inadmissible at the appeal stage, on account of the fact that it is new. In any event, according to the Commission, the General Court did not err in law or distort the clear sense of the evidence produced by IMG by considering that the doubts it had regarding IMG’s status as an international organisation justified the decisions at issue.

79 In its reply, IMG adds that its arguments call into question the legal merits of the General Court’s reasoning in the judgments under appeal regarding the legality of the decisions at issue in the light of the 2002 and 2012 Financial Regulations and they are therefore admissible.

80 Since the Commission disputes the admissibility of part of the complaints raised by IMG in support of the second ground of each of its appeals, it should be borne in mind at the outset that an appellant is entitled to challenge before the Court of Justice the interpretation and application of EU law by the General Court at first instance (see, to that effect, judgments of 13 July 2000, Salzgitter v Commission, C‑210/98 P, EU:C:2000:397, paragraph 43, and of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 51) and, in that connection, it is entitled to raise grounds of appeal which seek to criticise the legal merits of the assessments made by that court in the judgment under appeal (see, to that effect, judgments of 9 June 2011, Diputación Foral de Vizcaya and Others v Commission, C‑465/09 P to C‑470/09 P, not published, EU:C:2011:372, paragraph 146, and of 4 September 2014, Spain v Commission, C‑197/13 P, EU:C:2014:2157, paragraph 49 and the case-law cited).

81 In the present case, by the complaints referred to in paragraph 76 above, IMG claims that the General Court erred in applying the 2002 and 2012 Financial Regulations in paragraphs 102 to 106 and 113 of the judgment under appeal in Case T‑29/15 and in paragraphs 98 to 103 and 108 to 109 of the judgment under appeal in Case T‑381/15 in response to the pleas by which IMG challenged the legality of the decisions at issue in the light of those regulations.

82 In addition, it should be noted that the argument that the factors relied on by the Commission in order to justify the doubts expressed in those decisions concern only part of IMG’s 16 members takes issue with the legal merits of the General Court’s assessment in, first, paragraph 103 of the judgment under appeal in Case T‑29/15, referring to paragraph 89 of that judgment, itself referring to paragraph 85 of the judgment, and, second, paragraph 98 of the judgment under appeal in Case T‑381/15, referring to paragraph 85 of that judgment, that, given the context in which those decisions were made, they must be considered to be justified, inter alia, by those factors. On that basis, that complaint cannot, in the light of the case-law cited in paragraph 80 above, be rejected as inadmissible at the appeal stage on the ground that it was not raised at first instance.

83 Consequently, it must be held that the complaints raised by IMG in support of its second ground of appeal in each of the joined cases and, therefore, the grounds of appeal themselves, are admissible.

84 As regards the substance, it should be noted that the second ground of the main appeals refers to paragraphs 102 to 106 and 113 of the judgment under appeal in Case T‑29/15 and paragraphs 98 to 103, 108 and 109 of the judgment under appeal in Case T‑381/15, respectively.

85 In that regard, IMG challenged the legality of the decision of 16 December 2014 in the light of the 2002 and 2012 Financial Regulations and the legality of the decision of 8 May 2015 in the light of the 2012 Financial Regulation before the General Court. In that context, it submitted, inter alia, as noted by the General Court in paragraphs 102 and 104 of the judgment under appeal in Case T‑29/15 and in paragraph 96 of the judgment under appeal in Case T‑381/15, that it is an international public sector organisation established by an intergovernmental agreement within the meaning of those regulations, as is apparent from the evidence provided to the Commission and the General Court.

86 In rejecting those arguments, the General Court first stated, in paragraphs 103 and 105 of the judgment under appeal in Case T‑29/15 and paragraph 98 of the judgment under appeal in Case T‑381/15, that the Commission had expressed doubts in the decisions at issue regarding IMG’s status as an international organisation, relying on the factors set out in the letter of 25 April 2014, as indicated in paragraph 24 above.

87 Next, the General Court considered, in paragraphs 104 to 105 of the judgment under appeal in Case T‑29/15 and in paragraph 102 of the judgment under appeal in Case T‑381/15, that the arguments and evidence put forward by IMG were not such as to establish that the doubts expressed by the Commission in the decisions at issue were unfounded, on the basis of the factors in question.

88 In that regard, it must be noted that, according to Articles 53 and 53d(1) of Regulation No 1605/2002 and Article 58(1) of Regulation No 966/2012, which repealed and replaced Regulation No 1605/2002, the Commission may implement the EU budget by, inter alia, entrusting budget implementation tasks to international organisations.

89 It follows from these provisions that, when the Commission plans to adopt a decision entrusting budget implementation tasks to a given entity on that basis, it has a duty to satisfy itself that that entity has international organisation status.

90 In addition, when, after a decision entrusting budget implementation tasks to a given entity which has international organisation status has been adopted, the Commission adopts decisions such as the decisions at issue, on the basis of factors that are, in its view, such as to call that status into question, those decisions must be justified in law and in fact.

91 In that regard, the term ‘international organisation’, referred to in Articles 53 and 53d of Regulation No 1605/2002 and Article 58 of Regulation No 966/2012, has been defined in the same terms in Article 43(2) of Regulation No 2342/2002, and then in Article 43(1) of Regulation No 1268/2012, which repealed and replaced Regulation No 2342/2002. Under the two latter provisions, it includes ‘international public sector organisations set up by intergovernmental agreements, and specialised agencies set up by such organisations’.

92 In the present case, it is clear that the General Court did not review the legality of the decisions at issue in the light of that definition, but merely asserted that the arguments and evidence put forward by IMG did not call into question the Commission’s doubts as to IMG’s status as an international organisation.

93 That assertion is vitiated by an error of law, as none of the considerations put forward by the General Court concluding that the Commission’s doubts were founded, as recalled in paragraph 86 above, can justify those doubts in law.

94 Regarding the first of those considerations, concerning whether several Member States presented by IMG as being members of the organisation are in fact members, it is apparent from the General Court’s own findings that the Commission’s doubts in that respect concerned only ‘some’ of IMG’s members — more specifically, 5 out of a total of 16. However, the consequence in international law of such doubts, even if they were in fact well founded, would not be to deprive the entity of which those States are not — or no longer — members of its status as an ‘international organisation’, all the less so when, as in the present case, the States concerned form only a small part of the entity in question.

95 In respect of the second consideration, connected to the existence of doubts concerning the powers of the persons who represented certain States when IMG was established, it should, similarly, be noted that those doubts could, potentially, call into question the validity of the signature, by those States in particular, of the act establishing IMG, but not the validity of the actual creation of that entity, given that any irregularities in representation referred to concerned only a small number of participating States.

96 As for the third consideration that the UN Secretary indicated to OLAF that IMG was not a specialist UN agency, it is sufficient to state that it is irrelevant in law. As follows from paragraph 91 above, the 2002 and 2012 Financial Regulations do not require a given entity to be a UN agency in order for it to be classified as an ‘international organisation’. Furthermore, in the present case, it is not disputed that IMG has never held itself out to be such an agency, but maintains that it is an ‘international public sector organisation established by an intergovernmental agreement’, as is clear from the General Court’s observations referred to in paragraph 85 above.

97 Having regard to all the foregoing considerations, the Court finds that the second ground raised by IMG in support of each of its appeals in Cases C‑183/17 P and C‑184/17 P, alleging that the General Court erred in holding, in the judgments under appeal, that the Commission had not erred in law or made a manifest error of assessment by justifying the adoption of the decisions at issue by the doubts it had regarding IMG’s status as an ‘international organisation’ within the meaning of the 2002 and 2012 Financial Regulations, is well founded. Therefore, the Court accepts the present grounds of appeal, without it being necessary to examine whether the General Court’s decision is, in addition, vitiated by distortion of the clear sense of the evidence.

98 Regarding the consequences of the error of law identified in the previous paragraph, it must be stated in the first place that the rejection of IMG’s pleas alleging that the Commission erred in law in justifying the decisions at issue by the doubts it had regarding IMG’s status as an international organisation constitutes the ratio decidendi of the operative part of the judgments under appeal in so far as those judgments dismissed that entity’s actions for annulment.

99 Consequently, the Court sets aside the judgments under appeal in so far as they dismissed IMG’s actions for annulment as unfounded, without it being necessary to examine the other grounds and complaints raised by IMG in support of its appeals.

100 In the second place, as indicated in paragraph 33 above, IMG also submitted, in Case T‑381/15, a claim for damages for the harm allegedly caused to it by the decision of 8 May 2015, in that the Commission stated in that decision that it will not conclude any new delegation agreements for indirect management of the EU budget with IMG.

101 It was also on the basis of the incorrect legal assessment referred to in paragraph 97 above that the General Court, as a consequence, rejected that claim for damages, as is apparent from paragraphs 170 and 172 of the judgment under appeal in Case T‑381/15.

102 Therefore, the Court also sets aside the judgment under appeal in Case T‑381/15 in so far as that judgment rejected that claim for damages as unfounded.

103 Where the state of part of the proceedings so permits, the Court may, under the first paragraph of Article 61 of the Statute of the Court of Justice of European Union, itself give final judgment on that part of the dispute and refer the rest of the case back to the General Court for judgment.

104 In the present case, it is appropriate that the Court give final judgment on the two actions for annulment, since the state of the proceedings so permits. It follows from paragraphs 92 to 96 above that the decisions at issue are unlawful in so far as the factors relied on by the Commission in support of those decisions are not such as to call into question IMG’s status as an international organisation within the meaning of the 2002 and 2012 Financial Regulations. Consequently, the Court sets aside those decisions in their entirety.

105 Regarding the claim for damages submitted in Case T‑381/15, it should be borne in mind that, as indicated in paragraph 101 above, the General Court rejected that claim by relying solely on its assessment that the Commission had not erred in law or made a manifest error of assessment by justifying the adoption of the decision of 8 May 2015 by the doubts it had regarding IMG’s status as an international organisation. However, although it follows from the previous paragraphs above that that assessment is vitiated by an error of law, it is nonetheless necessary to examine the parties’ other arguments concerning the claim for damages, in particular those relating to the existence and extent of the harm allegedly suffered by IMG, which have, moreover, not been aired before the Court.

106 Having regard to those considerations, the Court finds that final judgment cannot be given on that part of the proceedings and that the case must consequently, to that extent, be referred back to the General Court.

107 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where an appeal is well founded and the Court itself gives final judgment in the case, it is to make a decision as to costs.

108 Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

109 In the present case, as the Commission has been unsuccessful in Cases C‑183/17 P, C‑184/17 P and T‑29/15, it must be ordered to pay the costs of those three sets of proceedings, as applied for by IMG.

110 However, regarding Case T‑381/15, although the Commission has been unsuccessful in respect of IMG’s action for annulment, the Court cannot give a final judgment on the claim for damages brought together with that action for annulment and that claim must be referred back to the General Court.

111 Consequently, the costs in that case must be reserved, in accordance with Article 137 of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) of those rules.

1. sets aside the judgments of the General Court of the European Union of 2 February 2017, International Management Group v Commission (T‑29/15, not published, EU:T:2017:56), and of 2 February 2017, International Management Group v Commission (T‑381/15, not published, EU:T:2017:57);

2. annuls Commission Implementing Decision C(2014) 9787 final of 16 December 2014 amending Implementing Decision C(2013) 7682 on the Annual Action Programme 2013 in favour of Myanmar/Burma to be financed from the general budget of the European Union;

3. annuls the decision of the European Commission not to conclude any new delegation agreements for indirect management with International Management Group, contained in its letter of 8 May 2015;

4. refers Case T‑381/15 back to the General Court of the European Union for a ruling on the claim for damages submitted by International Management Group in respect of the harm allegedly caused to that entity by the decision of the Commission referred to in paragraph 3 of the operative part of this judgment;

6. orders the Commission to pay the costs in Cases C‑183/17 P, C‑184/17 P and T‑29/15, and

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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 (Development cooperation - EU budget implementation by indirect management - Judgment) [2019] EUECJ C-183/17P (31 January 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C18317P.html Cite as: ECLI:EU:C:2019:78, [2019] EUECJ C-183/17P, EU:C:2019:78

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