ORDER OF THE COURT (Second Chamber)
30 June 2015 (*)
(Appeal — Arbitration clause — Contract relating to European Union financial support for a project in the context of the ‘eContent’ programme — Termination of the contract by the European Commission — Payment of amounts not paid and compensation for loss allegedly suffered by the applicant — Distortion of evidence in the file — Appeal manifestly inadmissible in part and manifestly unfounded as to the remainder — Application to amend the decision of the General Court of the European Union on costs — Manifest inadmissibility)
In Case C‑575/14 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 11 December 2014,
Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by M. Sfyri and I. Ampazis, dikigoroi,
applicant,
the other party to the proceedings being:
European Commission, represented by L. Cappelletti and S. Delaude, acting as Agents, with an address for service in Luxembourg,
defendant at first instance,
THE COURT (Second Chamber),
composed of R. Silva de Lapuerta, President of the Chamber, K. Lenaerts (Rapporteur), Vice-President of the Court, and J.-C. Bonichot, A. Arabadjiev and J.L. da Cruz Vilaça, Judges,
Advocate General: N. Jääskinen,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court,
makes the following
Order
1 By its appeal, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (‘Evropaïki Dynamiki’) asks the Court to set aside the judgment of the General Court of the European Union in Evropaïki Dynamiki v Commission (T‑340/07 RENV, EU:T:2014:847) (‘the judgment under appeal’), in so far as, by that judgment, the General Court dismissed its action for an order that the European Commission make good damage suffered as a result of its failure to comply with contractual obligations in the performance of the EDC‑53007 EEBO/27873 contract relating to the ‘e-Content Exposure and Business Opportunities’ project.
2 The judgment under appeal was delivered by the General Court following the judgment of the Court in Evropaïki Dynamiki v Commission (C‑200/10 P, EU:C:2011:281), by which the latter set aside in part the judgment of the General Court in Evropaïki Dynamiki v Commission (T‑340/07, EU:T:2010:33).
3 As regards the legal framework of the case, the facts of the dispute and procedure before the General Court and the Court, reference should be made to paragraphs 1 to 50 of the judgment in Evropaïki Dynamiki v Commission (T‑340/07, EU:T:2010:33), to paragraphs 1 to 11 of the judgment in Evropaïki Dynamiki v Commission (C‑200/10 P, EU:C:2011:281) and to paragraphs 1 to 22 of the judgment under appeal.
4 For the purposes of supplementing that information, it should be noted that Article 4 of the general conditions of the EDC‑53007 EEBO/27873 contract (‘the general conditions’) describes Evropaïki Dynamiki’s obligations relating to the reports and supporting evidence it is required to submit to the Commission. Article 4(2) of that contract makes provision, more specifically, for Evropaïki Dynamiki’s obligations relating to the cost statements that it is required to provide to the Commission.
Forms of order sought by the parties
5 Evropaïki Dynamiki claims that the Court should:
– set aside the judgment under appeal;
– order the Commission to pay it the amount of EUR 172 588.62, corresponding to the eligible costs it incurred, as compensation for the loss suffered as a result of the Commission’s failure to comply with its contractual obligations in the context of the EDC‑53007 EEBO/27873 contract;
– in the alternative, order the Commission to pay it at least the amount of EUR 127 016.48 representing all the expenses incurred or engaged by it before 16 May 2003, and the amount of EUR 35 503.60 in respect of certain costs incurred after 16 May 2003, and
– order the Commission to pay the costs relating to the proceedings at first instance, even on the assumption that the appeal is dismissed, and to pay the costs of the appeal if it is upheld.
6 The Commission contends that the Court should:
– dismiss the appeal and
– order Evropaïki Dynamiki to pay the costs incurred in the appeal and leave undisturbed the order as to costs of the General Court.
The appeal
7 Under Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, dismiss the appeal in whole or in part by reasoned order.
Arguments of the parties
8 In its single plea, Evropaïki Dynamiki complains that the General Court distorted the evidence in the file. More specifically, the General Court distorted that evidence by ruling, first, in paragraphs 36 and 37 of the judgment under appeal, concerning the first and second cost statements referred to in paragraph 27 of that judgment, that the documents produced by the applicant were not sufficient to prove that the costs stated had actually been incurred for the purpose of the implementation of the project. Secondly, concerning the third cost statement, also referred to in paragraph 27 of the judgment under appeal, the General Court erred in holding, in paragraphs 50, 52, 53 and 55 of that judgment, that Evropaïki Dynamiki had not supplied the supporting evidence which it was required to produce and that, consequently, all the personnel costs and overheads incurred should be disregarded.
9 In support of those arguments, Evropaïki Dynamiki claims first that the General Court distorted the meaning of the general conditions and consequently did not carry out a correct assessment of the probative value of the cost statements produced. Instead of referring solely to Articles 13 and 14 of those conditions, the General Court should have taken into consideration Article 4 thereof. It follows from the general conditions, taken as a whole, that the documents described in Article 14 thereof must be certified only by the co-contractor and that the only obligation of the latter is to maintain them at its premises. The only documents to be sent to the Commission in order to justify the costs incurred are the cost statements referred to in Article 4 of the general conditions.
10 Evropaïki Dynamiki claims, moreover, that, in the letters it sent to it, and in particularly in a letter of 6 October 2004, the Commission never contested the use of those cost statements as evidence and never requested the production of the time sheets provided for in Article 14 of the general conditions. As the General Court itself noted in paragraph 36 of the judgment under appeal, certain costs were, moreover, accepted by the Commission solely on the basis of the cost statements.
11 Next, paragraphs 46 to 55 of the judgment under appeal are vitiated by a distortion due to a confusion between the cost statements provided for in Article 4 of the general conditions and the time sheets provided for in Article 14(1) of those conditions. That distortion of the general conditions led the General Court to apply incorrectly the requirements and formalities laid down under those conditions concerning those different statements, and therefore wrongly to reject Evropaïki Dynamiki’s arguments relating to the reimbursement of personnel costs and overheads, in paragraphs 52 and 55 of the judgment under appeal.
12 Finally, Evropaïki Dynamiki claims that it could produce the time sheets that always remain available in its premises for audit, in accordance with the requirements of the general conditions. The General Court should have exercised its discretion to request the production of additional evidence, by way of a measure of organisation of procedure under Article 64 of its Rules of Procedure.
13 The Commission considers that the single plea is inadmissible in part and manifestly unfounded in its entirety in any event.
Findings of the Court
14 It should first of all be noted that although the cost statements provided for in Article 4 of the general conditions are indeed the only evidence relating to costs which the co-contractor is required systematically to produce to the Commission within specified time limits, that fact, emphasised by Evropaïki Dynamiki, nevertheless does not mean that the cost statements presented by a co-contractor are sufficient, in themselves, to establish that the costs stated therein are genuine, that they were in fact necessary and that they were incurred in order to perform the contract during its duration, in accordance with Article 13 of the general conditions.
15 Therefore, contrary to Evropaïki Dynamiki’s arguments, the General Court did not distort the evidence in the file by holding, in paragraphs 35 and 36 of the judgment under appeal, that the first and second cost statements referred to in paragraph 27 of the judgment under appeal do not, in themselves, allow it to be established that the conditions laid down in Article 13 of the general conditions were satisfied in the present case.
16 The fact that the Commission ‘already accepted’ certain costs on the basis of the cost statements considered, noted by the General Court in paragraph 36 of the judgment under appeal, does not rebut the finding made in the previous paragraph, since the Commission remains free to request its co-contractor to prove that the conditions laid down in Article 13 of the general conditions are satisfied with respect to other costs which it has not definitively accepted. Likewise, the fact, relied upon by Evropaïki Dynamiki, that the Commission never raised, in its correspondence with it, the question of the adequacy of those statements as evidence is also irrelevant in that regard.
17 In so far as the General Court held, in paragraph 36 of the judgment under appeal, that the documents produced by Evropaïki Dynamiki do not suffice to show that the costs stated therein were in fact incurred in the performance of the project, it suffices to note that Evropaïki Dynamiki fails to identify any specific evidence that the General Court distorted in reaching that conclusion.
18 Moreover, concerning the third cost statement referred to in paragraph 27 of the judgment under appeal, Evropaïki Dynamiki has not shown any distortion of the evidence in the file concerning the application made by the General Court, in paragraphs 46 to 49 of the judgment under appeal, of the general conditions. In particular, the General Court was correct to point out, in paragraphs 48 and 49 of the judgment under appeal, that Evropaïki Dynamiki had to prove that it certified the time sheets at least once a month, in accordance with Article 14(1) of the general conditions, and that, since that requirement had not been fulfilled, the personnel costs declared were not eligible costs within the meaning of Article 13(1) of those conditions.
19 It follows from the above that Evropaïki Dynamiki has not established, in the present case, a distortion of the evidence in the file capable of calling into question the rejection by the General Court, in paragraphs 52 and 55 of the judgment under appeal, of the personnel costs and overheads considered.
20 It should be added, in so far as Evropaïki Dynamiki claims that the General Court distorted the evidence establishing the veracity of the costs declared by it, that the General Court held, in paragraph 49 of the judgment under appeal, that ‘it [was] sufficient to note’ — in order to hold that the personnel costs charged to the EDC‑53007 EEBO/27873 contract were not eligible costs — that Evropaïki Dynamiki had not certified at least once a month the working hours at issue. It is thus ‘in any event’ and, therefore, for the sake of completeness, that the General Court held, in paragraph 50 of the judgment under appeal, that the other documents provided by Evropaïki Dynamiki do not establish that the hours stated were ‘actually [worked] by the persons directly carrying out the scientific and technical work under the project’, in accordance with Article 14(1) of the general conditions. According to the settled case-law of the Court of Justice, complaints directed against grounds included in a judgment of the General Court purely for the sake of completeness cannot lead to the judgment being set aside and are therefore ineffective (judgment in Commission v IPK International, C‑336/13 P, EU:C:2015:83, paragraph 33 and the case-law cited).
21 Finally, regarding Evropaïki Dynamiki’s argument that the General Court should have adopted a measure of organisation of procedure seeking the production of documents held by Evropaïki Dynamiki itself, it should be noted that it is for the latter to produce before the General Court the evidence it has at its disposal establishing, as the case may be, that the costs presented in its cost statements were genuine and eligible, in accordance with the requirements of the general conditions.
22 Therefore, as the Commission contends, that argument constitutes, in essence, an offer of evidence submitted for the first time before the Court of Justice. Such an offer of evidence, which Evropaïki Dynamiki could have presented before the General Court, must be regarded as being out of time and, therefore, manifestly inadmissible, at the stage of the appeal.
23 In the light of all the foregoing, the single plea is manifestly inadmissible, in part, and manifestly unfounded as to the remainder.
Costs
24 Article 184(2) of the Rules of Procedure of the Court of Justice provides that, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, applicable to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and Evropaïki Dynamiki has been unsuccessful, Evropaïki Dynamiki must be ordered to pay the costs in the present appeal proceedings.
25 Evropaïki Dynamiki also asks the Court to order the Commission to pay the costs incurred at first instance, in accordance with the second subparagraph of Article 87(3) of the Rules of Procedure of the General Court, although the General Court dismissed its action and even assuming that its appeal is dismissed. The General Court did not rule on its request put forward before it in that way.
26 In that regard, it is settled case-law that, where all the other pleas put forward in an appeal have been rejected, any plea challenging the decision of the General Court on costs must be rejected as inadmissible by virtue of the second paragraph of Article 58 of the Statute of the Court of Justice of the European Union, which provides that no appeal is to lie regarding only the amount of the costs or the party ordered to pay them (judgment in Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 78 and the case-law cited).
27 Since the single plea put forward by Evropaïki Dynamiki has been rejected in the present case, its application concerning the apportionment of costs at first instance is manifestly inadmissible.
On those grounds, the Court (Second Chamber) hereby:
1. Dismisses the appeal.
2. Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.
[Signatures]
*Language of the case: English.
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