GABO:mi v Commission (Appeal - Arbitration claus - Horizon 2020 - Judgment) [2023] EUECJ C-696/21P (16 March 2023)

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(Appeal – Arbitration clause – Sixth and seventh framework programmes for research, technological development and demonstration activities (2002-2006 and 2007-2013) – ‘Horizon 2020’ Framework Programme for Research and Innovation (2014-2020) – Eligible costs – Set-off of claims – Claim for reimbursement – Admissibility of the application – Article 76(d) of the Rules of Procedure of the General Court of the European Union – Requirement of clarity and precision)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 November 2021,

GABO:mi Gesellschaft für Ablauforganisation:milliarium mbH & Co. KG, established in Munich (Germany), represented by C. Mayer, Rechtsanwalt,

European Commission, represented by L. André, M. Ilkova and L. Mantl, acting as Agents,

composed of M.L. Arastey Sahún (Rapporteur), President of the Chamber, F. Biltgen and J. Passer, Judges,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 By its appeal, GABO:mi Gesellschaft für Ablauforganisation:milliarium mbH & Co. KG (‘GABO’) seeks to have set aside the order of the General Court of the European Union of 9 September 2021, GABO:mi v Commission (T‑881/19, not published, EU:T:2021:564; ‘the order under appeal’), by which the General Court dismissed as manifestly inadmissible its action for, inter alia, reimbursement of the eligible costs incurred by the appellant in the period from 1 August 2015 to 30 June 2016 under the grant agreements concluded in the context of the sixth and seventh framework programmes for research, technological development and demonstration activities and the ‘Horizon 2020’ Framework Programme for Research and Innovation.

2 The background to the dispute was set out by the General Court in paragraphs 1 to 12 of the order under appeal and may, for the purposes of the present proceedings, be summarised as follows.

3 GABO participated in a number of research projects financed by the EU budget under grant agreements concluded, inter alia, with the European Commission in the context of the following framework programmes:

– the framework programme established by Decision No 1513/2002/EC of the European Parliament and of the Council of 27 June 2002 concerning the sixth framework programme of the European Community for research, technological development and demonstration activities, contributing to the creation of the European Research Area and to innovation (2002 to 2006) (OJ 2002 L 232, p. 1);

– the framework programme established by Decision No 1982/2006/EC of the European Parliament and of the Council of 18 December 2006 concerning the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007-2013) (OJ 2006 L 412, p. 1);

– the framework programme established by Regulation (EU) No 1291/2013 of the European Parliament and of the Council of 11 December 2013 establishing Horizon 2020 – the Framework Programme for Research and Innovation (2014-2020) and repealing Decision No 1982/2006 (OJ 2013 L 347, p. 104).

4 The appellant thus received payments for the purposes of pre-financing the costs relating to the performance of its tasks in the context of those projects.

5 Following two audits concerning the costs declared by the appellant and an exchange of documents, in particular the Commission’s email of 29 July 2015 by which the appellant was informed of the suspension of all payments by the Commission to the appellant, and an email of 6 August 2015, by which the appellant objected to that measure, the Commission issued a debit note on 2 December 2015 (‘the debit note’) requesting the appellant to pay the total sum of EUR 1 770 417.29 in repayment of the claim arising as a result of those audits. Subsequently, the Commission proceeded to recover the claim by offsetting and sent the appellant a series of seven set-off letters, by which it deducted from the amount of the claim referred to in the debit note the amounts of the suspended payments and, in so doing, reduced the amount of the claim from EUR 1 770 417.29 to EUR 587 774.81.

6 On 14 January 2016, the appellant brought an action before the General Court based in particular on Article 272 TFEU, concerning, in essence, the alleged unlawfulness of the Commission’s recovery of the claim by offsetting.

7 After that action had been brought, the Commission pursued the recovery by offsetting of the debt referred to in the debit note, sending the appellant two further set-off letters to that end. It thus reduced the amount of the claim from EUR 1 770 417.29 to EUR 402 211.51. Those two set-off letters incorporated the subject matter of the dispute in that action.

8 Upon the appellant’s request for the initiation of insolvency proceedings, the Amtsgericht München (Local Court, Munich, Germany) appointed a preliminary insolvency administrator by decision of 27 April 2016. The appellant nevertheless continued to provide services under the grant agreements at issue until 30 June 2016.

9 In the judgment of 25 September 2018, GABO:mi v Commission (T‑10/16, not published, EU:T:2018:600), delivered following the action referred to in paragraph 6 of the present judgment, the General Court declared the Commission’s claim against the appellant, referred to in the debit note, to be unfounded as regards the declared expenses relating to the ‘central travel/meeting budget’ and the liquidated damages relating thereto, and dismissed the action as to the remainder.

10 Following that judgment, the appellant requested the Commission, by letter of 29 July 2019, to pay it the sum of EUR 1 680 681.81, together with interest calculated in accordance with Paragraph 247 of the Bürgerliches Gesetzbuch (German Civil Code). In that request for payment, the appellant claimed that, under German insolvency law, the set-offs made by the Commission were ineffective.

11 Following correspondence with the appellant, the Commission acknowledged that, in accordance with the judgment of 25 September 2018, GABO:mi v Commission (T‑10/16, not published, EU:T:2018:600), the appellant was entitled to payment of EUR 274 248.27, together with default interest, which is not disputed by the appellant.

12 By letter of 3 December 2019, the Commission informed the appellant that, since the appellant remained liable to pay EUR 1 927 495.27 because of the excess pre-financing paid in connection with various projects, the Commission would recover by means of set-off an amount corresponding to the sum of EUR 274 248.27.

13 By application lodged at the General Court Registry on 31 December 2019, the appellant brought an action for an order by the General Court requiring the Commission to pay it the sum of EUR 1 680 681.82, together with interest of EUR 76 552.60, under 38 grant agreements concluded in the context of the framework programmes mentioned in paragraph 3 of the present judgment.

14 By the order under appeal, the General Court dismissed that action as manifestly inadmissible.

15 In particular, in paragraphs 39 to 50 of that order, the General Court held that the application did not meet the requirements of the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the proceedings before the General Court in accordance with the first paragraph of Article 53 of the Statute, or of Article 76(d) of the Rules of Procedure of the General Court, on the ground that, first, the action lacked consistency and, second, the essential elements of fact and law on which the action was based were not apparent from either the application or the reply.

– set aside the order under appeal, save as regards the grant agreements that were not signed by the Commission, that is, the CANCER-ID, DIACAT, EU-AIMS, EUC²LID, EUROFORGEN, ONCOTRACK and RADAR-CNS agreements;

– order the Commission to pay EUR 1 304 465.36, together with interest of EUR 74 024.01, to Mr Ivo-Meinert Willrodt as insolvency administrator for the appellant; in the alternative, declare the action brought before the General Court admissible and refer the case back to the General Court for a judgment on the merits; in the further alternative, refer the case back to the General Court; and

18 The appellant raises two grounds of appeal, the first, alleging breach of the right to a fair trial enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and the second, alleging infringement of Article 76(d) of the Rules of Procedure of the General Court.

19 By its first ground of appeal the appellant submits, in essence, that, by dismissing its action as inadmissible without first having informed it of the supposed lack of precision of the subject matter of the proceedings, the General Court infringed the appellant’s right to a fair trial enshrined in Article 47 of the Charter.

20 According to the appellant, that right entails a duty of care for the parties to the proceedings that is concretised here as a duty on the part of the General Court explicitly to inform the parties of its legal opinion before a decision is made and to invite them to comment or, if necessary, to provide further clarification. Such a duty must apply especially where, as in the present case, there are apparently misunderstandings about the extent of the documents available to the appellant and where, according to the findings of the General Court, the appellant’s claims were not sufficiently substantiated.

21 According to the appellant, that interpretation is supported by the judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB (C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 146), in which the Court held that a request by the Courts of the European Union for the parties to produce data capable of justifying calculations the accuracy of which has been challenged before them serves to fulfil the requirements of Article 47 of the Charter.

22 The appellant submits that the General Court’s decision concerns the rules relating to the burden of proof, which must, in accordance with Article 47 of the Charter, be applied fairly. However, the General Court avoided the question of the extent to which the appellant and the Commission, which holds all the relevant information, were obliged to provide evidence.

23 Lastly, the order under appeal is, according to the appellant, also vitiated by a breach of procedure in that if the General Court had informed the appellant that the subject matter of the proceedings lacked precision, the appellant would have been able to explain why further information was not necessary.

25 It must be noted that, as is apparent from paragraphs 17 and 50 of the order under appeal, the General Court dismissed the action brought by the appellant as manifestly inadmissible, in reliance on Article 126 of the Rules of Procedure of the General Court according to which, where it is clear that the General Court has no jurisdiction to hear and determine an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the General Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

26 Accordingly, like Article 181 of the Rules of Procedure of the Court of Justice, which applies to appeals brought before that court, Article 126 of the Rules of Procedure of the General Court offers the General Court the possibility of using a simplified procedure that enables it, at any time, to determine certain actions swiftly, including those vitiated by manifest inadmissibility, without even serving the application on the defendant.

27 Consequently, the appellant cannot reasonably complain that the General Court infringed its right to a fair trial, enshrined in Article 47 of the Charter, on the ground that the General Court had failed to inform the parties of the decision dismissing the action which it intended to adopt because of the manifestly inadmissible nature of the action owing to the lack of precision of the subject matter of the proceedings, and had failed to invite the parties to submit observations in that regard.

28 In addition, it is apparent from paragraph 19 of the order under appeal that the Commission had contended that the action was inadmissible, relying on four pleas of inadmissibility to that effect, one of which concerned in particular the lack of precision of the subject matter of the dispute.

29 Therefore, in any event, the appellant was in a position to challenge that plea of inadmissibility before the General Court, as it did, moreover, in the reply which it submitted to that court.

31 By its second ground of appeal the appellant submits, in essence, that the General Court applied Article 76(d) of the Rules of Procedure of the General Court incorrectly when it found that the application did not meet the requirements of that provision.

32 In the first place, the appellant claims that, contrary to the findings of the General Court, the application did contain the essential elements enabling the Commission adequately to prepare its defence and the General Court to give its ruling.

33 First of all, according to the appellant, the fact that an adequate defence was possible is already shown by the detailed statements of the Commission in the defence and the rejoinder submitted to the General Court, in which the Commission dealt with the material aspects of the action for payment, maintaining, in particular, that the amounts claimed had already been repaid. Furthermore, in the letter of 25 October 2019 in Annex A.19 to the application submitted to the General Court, the Commission had recognised the appellant’s claims in relation to the period from 1 August 2015 to 30 April 2016 in the amount of EUR 1 400 205.75. The Commission was, moreover, in possession of all the relevant information, since it was a contracting party to all the grant agreements at issue in the present case, whereas the appellant did not have all that information, since it was only the insolvency administrator of a company which, as a general rule, does not communicate directly with the Commission.

34 In that context, the appellant argues that, having regard to the principle of effective judicial protection, which includes the principle of equality of arms, the requirements for justifying the claim in question should not be excessively strict. In particular, in a situation in which the defendant has access to more information, it is sufficient that the applicant explains, to the best of its knowledge, the basis of the claim, the amount claimed and the reasons why the claim has not ceased to exist, as the appellant maintains it did in paragraphs 20, 24, 47, 56 and 75 of its application. It was, therefore, for the Commission to make its documents available to the Court in order to enable a comparison to be made with those produced by the appellant.

35 Next, and contrary to the General Court’s findings in, in particular, paragraphs 40, 42 and 48 of the order under appeal, the degree of precision with which the appellant mentioned the provisions of the agreements is irrelevant, not least because the appellant had set out and detailed in paragraph 47 et seq. and in paragraph 56 et seq. of the application the contractual basis of the costs incurred. The procedures to be followed in order to recover the costs incurred under the grant agreements were also irrelevant in the present case as the Commission had already accepted the appellant’s claim and had attempted to offset it. In addition, it is apparent from the judgment of 25 September 2018, GABO:mi v Commission (T‑10/16, not published, EU:T:2018:600), that the General Court had already implicitly acknowledged that claim in the amount of EUR 274 248.27.

36 Lastly, so far as concerns the General Court’s findings in paragraph 44 et seq. of the order under appeal, according to which the application is vague and unspecific as regards the amounts claimed by the appellant, first, the appellant maintains that the amount claimed is clearly quantified in the application.

37 Second, the fact, as noted by the General Court in paragraph 46 of the order under appeal, that the appellant’s request for repayment covered claims relating to the costs incurred during certain specific periods which did not correspond to the reporting periods laid down in the grant agreements is accounted for by the fact that, in accordance with German insolvency legislation, all set-offs made in the period during which the Commission was aware of the impending insolvency proceedings, that is to say, the period between 1 August 2015 and 30 April 2016, are ineffective, and all set-offs made in the period corresponding to the preliminary insolvency proceedings, that is to say, between 1 May 2016 and 30 June 2016, are void.

38 Third, even if the General Court and the Commission were unable to reconcile certain elements of the amount claimed with the amounts communicated to and accepted by the Commission, that should not have resulted in the inadmissibility of the claims relating to projects whose costs were fully covered by payment letters issued by the Commission in the period from 1 August 2015 to 30 June 2016. In that regard, the appellant makes clear that the fact that those payment letters are dated after 30 June 2016 is irrelevant since, from 1 July 2016 onwards, it was impossible for the appellant to incur additional costs because of the initiation of the insolvency proceedings.

39 Fourth, as regards the General Court’s finding in paragraph 45 of the order under appeal, the appellant reiterates that it was for the Commission, which alone is in possession of the complete documentation, to explain the differences between the amounts communicated to and accepted by the Commission and those claimed by the appellant. The Commission had the ‘Forms C’ that are submitted to it by all members of the consortium concerned via the consortium leader and in which the invoice amounts are declared, and the ‘payment letters’ which the Commission sent to the project coordinators and in which it acknowledges the accepted amounts for each consortium member. Those payment letters are uploaded to an online platform but the appellant’s access to that platform was restricted following initiation of the insolvency proceedings. The Commission had, moreover, failed to comply with the appellant’s request to be provided with those letters.

40 The appellant also states that the risk, referred to in paragraph 38 of the order under appeal, of the General Court having to ‘reconstruct’ the pleas which the appellant invoked in its application by giving them a scope which they did not have in the mind of the appellant does not exist in the present case, since the appellant only and unambiguously requested that the Commission be ordered to pay a sum fixed at EUR 1 680 681.82, together with interest of EUR 76 552.60, and further specified the particular amounts claimed for certain defined periods.

41 In the second place, the appellant claims that, contrary to what the General Court held in paragraph 39 of the order under appeal, the application is not vitiated by any inconsistency between the legal basis relied on and the arguments put forward.

42 In that regard, the appellant refers to paragraphs 33 to 40 of the reply which it submitted to the General Court and in which it set out in detail the reasons why the set-off decisions contained in the set-off letters referred to in paragraphs 5 and 7 of the present judgment (‘the set-off decisions’) could not be the subject of an action for annulment. Therefore, there was consistency in bringing the case before the General Court on the basis of the arbitration clause. Only the grant agreements, not the set-offs, formed the basis of the payment claim.

43 In the appellant’s submission it is apparent, moreover, from those paragraphs of the reply that the application of German insolvency legislation does not affect the ‘legality’ of the set-offs, within the meaning of the first paragraph of Article 263 TFEU. That insolvency legislation provides that those set-offs are deemed to be ineffective until the insolvency proceedings have concluded. Thus, such set-offs would continue to produce all their other effects and would cease to be ineffective at the end of the insolvency proceedings.

44 The arguments which the appellant put forward before the General Court thus challenge the case-law of the General Court according to which the set-off decisions may be the subject of an action for annulment.

46 In order to determine the merits of the second ground of appeal, it is necessary to recall, as the General Court noted in paragraph 35 of the order under appeal, that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of the Statute, and Article 76(d) of the Rules of Procedure of the General Court, the application must contain the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law.

47 On that last point, it must also be recalled that, according to the settled case-law of the Court of Justice, the ‘summary of the pleas in law’ which must be stated in any application, as provided for by the articles referred to in the preceding paragraph, means that the application must specify the nature of the grounds on which the application is based (judgment of 3 March 2022, WV v EEAS, C‑162/20 P, EU:C:2022:153, paragraph 67 and the case-law cited).

48 Thus, for an action before the General Court to be admissible, it is necessary, in particular, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may certainly be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the provisions recalled in paragraph 46 of the present judgment, must appear in the application (judgment of 3 March 2022, WV v EEAS, C‑162/20 P, EU:C:2022:153, paragraph 68 and the case-law cited).

49 It follows that an applicant is required to set out in a sufficiently systematic manner the arguments relating to each plea which it puts forward, and the General Court cannot be obliged, due to the lack of structure in the application or lack of rigour on the part of the applicant, to reconstruct the legal structure intended to support a plea by bringing together various diffuse elements of the application, at the risk of reconstructing that plea by giving it a scope which it did not have in the mind of that party (see, to that effect, judgment of 12 November 2020, Fleig v EEAS, C‑446/19 P, not published, EU:C:2020:918, paragraph 61).

50 It should, lastly, be recalled that the requirements laid down in Article 76(d) of the Rules of Procedure of the General Court are intended to enable, on the one hand, the defendant to prepare its defence and, on the other, the General Court to exercise its power of review, and, in that context, to ensure that the General Court does not rule ultra petita or fail to rule on a claim (order of 30 September 2021, González Calvet v SRB, C‑27/21 P, not published, EU:C:2021:789, paragraph 30).

51 Having recalled, in paragraphs 35 to 38 of the order under appeal, its established case-law concerning the requirements referred to in Article 76(d) of its Rules of Procedure, such case-law merely reflecting the legal principles derived from the case-law of the Court of Justice stated in paragraphs 47 to 50 of the present judgment, the General Court set out, in paragraphs 39 to 48 of that order, the reasons for its finding in paragraph 49 of the order, first, that the action was vitiated by a lack of consistency and, second, that the essential elements of fact and law on which the action was based were not apparent from either the application or the reply, leading it to conclude, therefore, that the application manifestly did not satisfy those requirements.

52 The appellant challenges the reasons set out in paragraphs 39 to 48 of the order under appeal and the findings of the General Court, as well as the conclusion drawn by the General Court in paragraph 49 of that order.

– The General Court’s findings concerning the absence of essential elements of fact and law in the application

53 It is apparent from the application that the action which the appellant brought before the General Court was based on Article 272 TFEU and sought an order that the Commission be required to pay, first, the sum of EUR 1 418 644.60 in respect of eligible costs incurred by the appellant in the period from 1 August 2015 to 30 April 2016 in the context of the execution of 37 projects financed under grant agreements concluded in particular by the Commission, together with default interest, and, second, the sum of EUR 262 037.22 in respect of eligible costs incurred by the appellant in the period from 1 May 2016 to 30 June 2016 in the context of the execution of 38 projects financed under grant agreements concluded in particular by the Commission, together with default interest.

54 All of those costs were, according to the appellant, accepted by the Commission, which set off the claims corresponding to those costs against the appellant’s debt of EUR 1 770 417.29 to the Commission stemming from the debit note. However, in the appellant’s opinion, those set-offs are void under German insolvency law, which, according to the appellant, is applicable in this case by virtue of Article 4(2) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1), read in conjunction with Article 6(2) of that regulation.

55 That said, it should be noted, in the first place, that although the appellant’s claim for payment was based on Article 272 TFEU, as the General Court found in paragraphs 40 to 43 of the order under appeal, it did not identify the clauses of the relevant grant agreements that constituted the legal basis of its alleged right to payment of the sum claimed.

56 In particular, in so far as the sums claimed corresponded to the eligible costs incurred by the appellant in two specific periods, the first, the period between 1 August 2015 and 30 April 2016, and the second, the period from 1 May 2016 to 30 June 2016 (‘the periods at issue’), in the context of 38 different projects, the appellant should have identified, in respect of each project, the clauses relating to the procedures for claiming payment of those costs from the Commission.

57 The appellant, however, merely stated in general terms, in paragraphs 48 and 57 of the application, that all of the costs claimed fulfilled the eligibility criteria mentioned in the agreements entered into by the parties, referring to Annexes 6 to 10 to the application, and, in paragraphs 45, 48 and 57 of the application, it referred to ‘Article II.14.1 of the grant agreements’, in which eligible costs are defined.

58 First, the general reference to agreements entered into by the parties and the reference to Annexes 6 to 10 to the application are not sufficient to support a finding of compliance with the requirement that the essential elements of law on which the action is based should be included in the body of the application, particularly as those annexes contain only a very small part of the clauses contained in the grant agreements concerning, furthermore, only 5 of the 38 projects to which the appellant refers. Moreover, the two or three clauses included in those annexes relate exclusively to the applicable law, the determination of the court having jurisdiction to hear disputes between the parties, and the date of entry into force of the agreement containing those clauses. The appellant’s production of all the relevant grant agreements, comprising almost 3 000 pages, as annexes when submitting the reply to the General Court, without providing any explanation as to the relevant parts of those agreements, also fails to meet that requirement, having regard to the case-law mentioned in paragraphs 47 to 50 of the present judgment, as the General Court noted in paragraph 40 of the order under appeal.

59 Nor, second, does the reference to ‘Article II.14.1 of the grant agreements’, in which ‘eligible costs’ are defined, permit the inference that that requirement was met. As the General Court held in paragraph 42 of the order under appeal, even if it was assumed that that definition could be regarded as being uniform for all the relevant grant agreements, Article II.14.1 did not set out any rules as to how the appellant should recover the eligible costs – payment of which was being sought in the action – from the Commission.

60 In that context, the appellant’s argument in its appeal that a precise statement of the rules governing the procedures to be followed in order to pursue such claims against the Commission was irrelevant, because the Commission had already acknowledged the claims covered by the request for payment, cannot be accepted.

61 It is sufficient to note that, contrary to the appellant’s assertions, the Commission did not acknowledge either in the defence or in the rejoinder, or yet in its letter of 25 October 2019 appended as Annex A.19 to the application, as a simple reading of those documents will show, that the costs claimed by the appellant in its action before the General Court corresponded precisely to those which the appellant had submitted to the Commission for payment and which the Commission had accepted in respect of the periods at issue. Consequently, even if, as the appellant maintains, in the context of an action such as that brought by GABO, the fact that a defendant acknowledges that the applicant has actually incurred the eligible costs claimed could make up for any failure to refer in the application to the contractual clauses containing the rules mentioned in paragraph 60 of the present judgment, it must be stated that, in any event, the appellant could not reasonably rely on that argument in the present case.

62 In the second place, while the claim for payment submitted to the General Court related to the eligible costs incurred by the appellant in the context of 38 different projects during the periods at issue, which are two different, specific periods, as the General Court found in paragraph 48 of the order under appeal, the appellant did not provide any explanation as to how it had calculated the various amounts claimed in respect of each of the periods at issue covered by the action and each of the projects concerned. In that regard, neither paragraphs 24 to 27 of the application nor Annexes 14 and 15 thereto, to which those paragraphs refer, contain any information on that point. The same applies with regard to paragraph 21 of the reply submitted to the General Court, in which the appellant stated that, ‘for further clarification’, it was providing a list of certain payment letters in Annex A.24 to that pleading.

63 Examination of that annex reveals that none of the payment letters produced by the appellant covers a period coinciding precisely with the periods at issue. In the case of 12 projects, the payment letters cover periods extending beyond the periods at issue while, in the case of 12 other projects, the payment letters cover periods including only part of the periods at issue. Thus, the way in which the appellant was able to calculate the amounts claimed in its request for payment is not apparent from any of those letters.

64 Since it is common ground that the periods at issue do not correspond to the reporting periods, the details of the appellant’s calculations of the eligible costs claimed for each of the periods at issue and for each project were essential not only so that the Commission would know which method of calculation had been used by the appellant to quantify the costs claimed and, if appropriate, would be able to challenge that method, but also so that the General Court could check that the method used by the appellant to make those calculations was correct.

65 In that context, the Court of Justice cannot accept the appellant’s argument that it was for the Commission to explain the differences between the amount claimed and the amounts accepted by the Commission. Leaving aside the fact that none of the documents on the case file available to the Court shows the exact amount supposedly accepted by the Commission in respect of the eligible costs incurred by the appellant in connection with each of the projects referred to in the action, during each of the periods at issue, the onus is on the appellant, which has claimed payment of specific amounts on that basis, to indicate how it arrived at those amounts.

66 Furthermore, the explanations provided by the appellant in paragraph 25 of the reply submitted to the General Court are not capable of compensating for the lack of information concerning the differences between the amounts accepted by the Commission and those claimed by the appellant. Not only did those explanations relate to just one project – specifically, the SysmedIBD project – but, assuming they could have been deemed to apply to all the projects covered by the action, it must be noted, as is apparent from paragraph 25 of that reply, that the calculation of the eligible costs claimed was made on the basis of expenses recorded in the appellant’s accounts, in line with the declaration of costs in the ‘Form C – Financial Statement’ submitted to the Commission via the project coordinator. Understanding the calculations made would therefore require that form to be available so that the appellant’s explanations could be understood. As it is, the appellant did not provide a copy of that form. Accordingly, even if, as the appellant maintains in its appeal, the Commission was in possession of that form so that the failure to produce it did not prevent the Commission from preparing an adequate defence with regard to the amount of the eligible costs specifically claimed, the General Court would not have essential information at its disposal for the purposes of checking whether the amounts corresponding to the eligible costs claimed by the appellant correspond precisely to the costs accepted by the Commission in relation to the periods at issue in connection with each of the projects covered by the action.

67 The General Court did not, therefore, err in law when it found, in paragraph 49 of the order under appeal, that the essential elements of fact and law on which the appellant’s action was based were not apparent from either the application or the reply.

68 In addition, it should be noted, as stated in paragraph 54 of the present judgment, that it is apparent from the application that the appellant’s alleged right to payment by the Commission of the sum of EUR 1 680 681.82 corresponding to the eligible costs incurred by the appellant during the periods at issue resulted from the fact that, according to the appellant, under German insolvency law, the Commission’s set-off payments in respect of the costs claimed were void.

69 On that last point, it is apparent, in particular, from the application that, following a request made by the appellant in Germany on 26 April 2016, insolvency proceedings were opened in respect of the appellant, initially informally on 28 April 2016, and then formally on 1 July 2016.

70 According to the explanations provided in the application, under Paragraph 133(1) of the Insolvenzordnung (Insolvency Code; ‘InsO’), in the version applicable at the material time, the right of set-off is voidable where the debtor’s claim which is affected by that right arose or became recoverable at a time when the parties involved, in this case the appellant and the Commission, were aware of impending insolvency proceedings. Since, according to the appellant, the Commission had been aware of impending insolvency proceedings since 6 August 2015, all the set-offs made by the Commission in the period between 1 August 2015 and 30 April 2016 are void. Consequently, the Commission should repay all the eligible costs corresponding to that period, a sum of EUR 1 418 644.60, together with default interest.

71 Moreover, pursuant to point 2 of Paragraph 130(1) of the InsO, the right of set-off is in particular voidable where the debtor’s claim which is covered by that right arose or became recoverable no earlier than at the time when the other party became aware of the insolvency petition. Since, according to the appellant, the Commission had been informed on 28 April 2016 of the opening of preliminary insolvency proceedings, any set-off declared by the Commission in the period from 1 May 2016 to 30 June 2016 is deemed ineffective pursuant to point 3 of Paragraph 96(1) of the InsO. Consequently, the Commission should repay all the eligible costs corresponding to that period, a sum of EUR 262 037.22, together with default interest.

72 Without prejudging the question as to whether, on the one hand, an applicant may ask the General Court, pursuant to Article 272 TFEU, to order the Commission to repay, under national insolvency legislation, sums which that institution had allegedly recovered by means of set-off, and whether, on the other hand, national law governing insolvency proceedings involving a co-contractor of the Commission is capable of preventing the Commission from setting off its debts against its claims against that co-contractor or of requiring the Commission to pay that co-contractor sums allegedly recovered by means of set-off, a question that represents the substance of the action, it must be noted in the first place that, in order to satisfy the requirement to set out clearly the elements of law on which the action was based, and thus to comply with the requirements of Article 76(d) of the Rules of Procedure of the General Court, the appellant should have explained clearly the legal effects, in the light of the set-offs made by the Commission, of the application of German insolvency law as invoked by the appellant in support of its request for payment.

73 However, it is clear from reading the application that such legal effects were not clearly set out by the appellant. While the appellant describes those set-offs as ‘void’ in paragraphs 3, 4, 25, 27, 35, 45, 46, 55 and 71 of the application, it describes them as ‘ineffective’ in paragraphs 34, 50, 52, 54, 62 to 66 and 70 of the same application. The explanations given by the appellant in the reply which it submitted to the General Court and in its appeal merely add to the lack of clarity in that respect, since the appellant seems to identify different legal consequences for set-offs made in the period between 1 August 2015 and 30 April 2016, which are said to be ‘merely ineffective’ or ‘ineffective’, and set-offs made in the period from 1 May 2016 to 30 June 2016, which are said to be ‘void’.

74 In the second place, for the purposes of ruling on the merits of the action in accordance with German insolvency law, it was ‘decisive’, as the appellant itself stated in paragraph 4 of the reply lodged with the General Court, to determine whether the Commission’s set-offs during the periods at issue were ‘effective’ or ‘ineffective’ under that legislation. In that regard, it is clear from the information contained in the application, as set out in paragraphs 69 to 72 of the present judgment, that the ‘effectiveness’ or ‘ineffectiveness’ of the set-offs depended exclusively on the date on which they were made, and whether they were made before or after either the date on which the Commission became aware of the impending insolvency proceedings or the date on which those proceedings were opened.

75 Furthermore, it would appear to follow from the application of German insolvency law that those of the appellant’s claims that are covered by the Commission’s set-offs and which are ‘effective’ under German insolvency legislation must be deemed to have been paid by that institution, whereas those covered by the Commission’s set-offs which are not effective under German insolvency legislation cannot be deemed to have been paid by the Commission, and the Commission must actually pay those claims.

76 It follows that, to enable the Commission to prepare an adequate defence as regards determination of the eligible costs claimed, which, under German insolvency legislation, might be deemed to have been paid already, and to enable the General Court to exercise its power of review in that regard, the appellant should have specified the actual number of set-off decisions which, in its view, were ineffective under that legislation, the date of each of those decisions and the eligible costs, from among all the costs claimed, specifically covered by each of those decisions.

77 As it is, no details in that regard were provided either in the application or in the reply.

78 Consequently, the application lacks clarity and precision also as regards elements of fact and law that are essential for the purposes of the action other than those identified by the General Court in paragraphs 40 to 49 of the order under appeal.

– The General Court’s findings concerning the lack of consistency of the action

79 It must be noted that the grounds referred to in paragraphs 40 to 48 of the order under appeal and the resulting finding, namely that the essential elements of fact and law on which the appellant’s action was based were not apparent from either the application or the reply, are sufficient, in the light of the case-law referred to in paragraphs 47 to 50 of the present judgment, to enable the General Court to conclude that that action manifestly did not satisfy the requirements of Article 76(d) of the Rules of Procedure of the General Court, and accordingly to justify the operative part of the order under appeal.

80 The words ‘in addition to the fact’ used by the General Court in paragraph 49 of the order under appeal confirm that its finding concerning the lack of consistency vitiating the action and the reasons given for that finding in paragraph 39 thereof are included for the sake of completeness in reaching that conclusion.

81 The appellant’s arguments against those grounds are, therefore, ineffective.

82 Consequently, the second ground of appeal must be rejected as being in part ineffective and in part unfounded.

83 As neither of the appellant’s grounds of appeal is well founded, the appeal must be dismissed in its entirety.

84 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.

85 In accordance with Article 138(1) of those Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

86 Since the appellant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

2. Orders GABO:mi Gesellschaft für Ablauforganisation:milliarium mbH & Co. KG to bear its own costs and to pay those incurred by the European Commission.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> GABO:mi v Commission (Appeal - Arbitration claus - Horizon 2020 - Judgment) [2023] EUECJ C-696/21P (16 March 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/C69621P.html Cite as: [2023] EUECJ C-696/21P, EU:C:2023:217, ECLI:EU:C:2023:217

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