GABO:mi Gesellschaft für Ablauforganisation:milliarium mbH & Co. KG v European Commission.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2023:217
• Docket Number: C-696/21
• Celex Number: 62021CJ0696
• Date: 16 March 2023

JUDGMENT OF THE COURT (Seventh Chamber)

16 March 2023 (*)

(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)

In Case C‑696/21 P,

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,

appellant,

the other party to the proceedings being:

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

defendant at first instance,

THE COURT (Seventh Chamber),

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

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

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

gives the following

Judgment

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.

Background to the dispute

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.

The proceedings before the General Court and the order under appeal

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.

Forms of order sought

16 By its appeal, the appellant claims that the Court should:

– 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

– order the Commission to pay the costs.

17 The Commission contends that the Court should:

– dismiss the appeal; and

– order the appellant to pay the costs.

The appeal

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.

The first ground of appeal

Arguments of the parties

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...