Corte di giustizia UE/2026

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 15 July 2026( * ) ( Action for annulment – Arbitration clause – [OSCURATO:PERSONA] – [OSCURATO:PERSONA] agreement – [OSCURATO:PERSONA] guarantee – Identification of the defendant – Partial inadmissibility ) [OSCURATO:PERSONA] T‑836/25, [OSCURATO:PERSONA] I [OSCURATO:PERSONA] HoldCo, SL, established in Madrid (Spain), represented by P. Callol, lawyer, applicant, v [OSCURATO:PERSONA], represented by G. Wils and A. Koričić, acting as Agents, and [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (CINEA), represented by A. Turlan, N. Kopietz and V. Bard, acting as Agents, and M. [OSCURATO:PERSONA] and L. Lence de Frutos, lawyers, defendants, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of G. [OSCURATO:PERSONA], [OSCURATO:PERSONA], J. Svenningsen (Rapporteur) and C. [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: V. [OSCURATO:PERSONA], having regard to the written part of the procedure, in particular: –        the application lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 4 December 2025; –        the plea of inadmissibility raised by the [OSCURATO:PERSONA] lodged at the [OSCURATO:PERSONA] on 3 March 2026; –        the applicant’s observations on the plea of inadmissibility lodged at the [OSCURATO:PERSONA] on 14 April 2026, makes the following [OSCURATO:PERSONA] 1 By application under [OSCURATO:PERSONA] 263 TFEU, the applicant, [OSCURATO:PERSONA] I [OSCURATO:PERSONA] HoldCo, SL, a Spanish company, seeks the annulment of the Closing letter in response to the applicant’s letter dated 30 September 2025 titled Opposition to the call of the [OSCURATO:PERSONA] constituted by [OSCURATO:PERSONA] 101179454 (“[OSCURATO:PERSONA]”) following the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] – [OSCURATO:PERSONA]. AMD-101179454-2, issued by the [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (CINEA) on 19 November 2025 (‘the contested act’). In addition, under [OSCURATO:PERSONA] 272 TFEU, the applicant seeks a declaration that the termination was justified or, in the alternative, that CINEA may execute the completion guarantee only partially or that CINEA must pay back to the applicant a part of the completion guarantee. Background to the dispute 2 On 23 November 2023, the [OSCURATO:PERSONA] launched an auction for renewable fuel of non-biological origin (RFNBO) hydrogen (INNOVFUND-2023-AUC-RFNBO-Hydrogen). 3 [OSCURATO:PERSONA], an EU funding programme, provides grants for projects for the commercial deployment of innovative low-carbon technologies with the objective of bringing to market industrial solutions to decarbonise the [OSCURATO:PERSONA] and supporting its transition to climate neutrality. 4 The auction was managed by CINEA. The call document established the legal and financial framework governing eligibility for grants, award conditions, grant implementation and enforcement mechanisms. 5 Section 10 of the call document indicated that ‘entry into operation must be reached within five years after grant signature’. It also required bidders to provide a completion guarantee amounting to 4% of the maximum grant amount and stipulated that CINEA, the granting authority, could execute that guarantee if, inter alia, the grant was terminated before entry into operation of the relevant installation and provided there was no force majeure within the meaning of [OSCURATO:PERSONA] 35 of the grant agreement. 6 On 8 February 2024, the applicant submitted its initial bid, which was subsequently updated. The applicant provided a completion guarantee dated 17 June 2024, consisting in an unconditional first-demand guarantee for the required amount. The grant agreement concluded between CINEA and the applicant was signed by their representatives on 24 September 2024. 7 From 21 February 2025, the applicant engaged in discussions with CINEA regarding, in particular, the possibility of extending the entry into operation deadline. By letter of 14 April 2025, the applicant requested the amendment and the irrevocable termination of the grant agreement. 8 On 18 June 2025, the applicant and CINEA signed a termination amendment of the grant agreement. 9 On 8 July 2025, CINEA informed the applicant of its intention to execute the completion guarantee as, in its view, the grant agreement had been terminated before entry into operation. By letter of 9 July 2025, the applicant expressed its opposition to that course of action essentially on grounds of force majeure . On 26 September 2025, CINEA stated that it considered that no force majeure had arisen and confirmed its intention to execute the completion guarantee. By letter of 30 September 2025, the applicant again expressed its opposition to CINEA’s intention to execute the completion guarantee. In the contested act, CINEA reiterated its intention to do so. Forms of order sought 10 In the application, the applicant claims that the [OSCURATO:PERSONA] should: –        pursuant to [OSCURATO:PERSONA] 272 TFEU, declare that the termination of the grant agreement was justified or that the applicant correctly understood from CINEA’s declarations that the termination was considered justified, so that CINEA cannot lawfully execute the completion guarantee; –        in the alternative, also pursuant to [OSCURATO:PERSONA] 272 TFEU, declare that CINEA may execute the completion guarantee only partially, to the extent required to compensate for the costs caused by termination of the grant agreement, or, in the event that the completion guarantee is entirely executed, declare that CINEA must pay back to the applicant that part of the completion guarantee that exceeds the costs incurred by CINEA as a result of the termination of the grant agreement; –        in the further alternative, in the event that the action under [OSCURATO:PERSONA] 272 TFEU is declared inadmissible, annul the contested act pursuant to [OSCURATO:PERSONA] 263 TFEU; and –        order CINEA to pay the costs or, in the alternative, award costs on an equitable basis due to the complexity of the matter. 11 The applicant’s third head of claim, which is the only head of claim that is relevant in the present proceedings, is directed against the [OSCURATO:PERSONA] and CINEA. The other heads of claim are directed against CINEA only. 12 In its plea of inadmissibility submitted pursuant to [OSCURATO:PERSONA] 130(1) of the Rules of Procedure of the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        dismiss the action as manifestly inadmissible in its entirety or, in any event, in so far as it is directed against the [OSCURATO:PERSONA]; and –        order the applicant to pay the costs. 13 In its observations on the [OSCURATO:PERSONA]’s plea of inadmissibility, the applicant requests the [OSCURATO:PERSONA] to reserve its decision on admissibility until judgment and then to dismiss it. Law 14 [OSCURATO:PERSONA] 130(1) of the Rules of Procedure, on application by the defendant, the [OSCURATO:PERSONA] may decide on inadmissibility or lack of competence without going to the substance of the case. 15 In the present case, the [OSCURATO:PERSONA] considers that it is in the interests of justice to rule on the [OSCURATO:PERSONA]’s application as soon as possible since it is not necessary to hear argument on the merits in order to assess it (see, to that effect, judgment of 13 July 2023, [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] , C‑73/22 P and C‑77/22 P, EU:C:2023:570, paragraphs 75 and 76 and the case-law cited). 16 [OSCURATO:PERSONA] contends, in particular, that the present action is inadmissible in so far as it is directed against it. 17 First, the [OSCURATO:PERSONA] submits that, under [OSCURATO:PERSONA] 272 TFEU, the jurisdiction of the [OSCURATO:PERSONA] extends only to disputes between the contracting parties and that the [OSCURATO:PERSONA] is not a party to the grant agreement. 18 [OSCURATO:PERSONA], the [OSCURATO:PERSONA] states that, under [OSCURATO:PERSONA] 263 TFEU, actions must be brought against the author of the contested act and that the [OSCURATO:PERSONA] is neither the author of the contested act nor was CINEA exercising an advisory power or acting pursuant to a prior approval of the [OSCURATO:PERSONA] as a delegating institution when it adopted that act. Moreover, the applicant’s arguments relating to the [OSCURATO:PERSONA]’s role under the last paragraph of [OSCURATO:PERSONA] 43.2 of the grant agreement confuse two distinct legal mechanisms, namely the execution of a completion guarantee and enforced recovery under [OSCURATO:PERSONA] 299 TFEU. 19 The applicant contests the [OSCURATO:PERSONA]’s plea of inadmissibility only on the basis of clauses in the grant agreement which, in the applicant’s view, suggest that the contested act is a decision within the meaning of the last paragraph of [OSCURATO:PERSONA] 43.2 of that agreement, according to which actions against offsetting or enforceable decisions must be brought against the [OSCURATO:PERSONA], which adopts such decisions pursuant to [OSCURATO:PERSONA] 22.4 thereof. As the [OSCURATO:PERSONA] notes in its plea of inadmissibility, those clauses of the grant agreement reflect [OSCURATO:PERSONA] 5(2)(f) of the [OSCURATO:PERSONA] of 12 February 2021 delegating powers to [CINEA] with a view to the performance of tasks linked to the implementation of [EU] programmes in the field of transport and energy infrastructure; climate, energy and mobility research and innovation; environment, nature and biodiversity; transition to low-carbon technologies; and maritime and fisheries; comprising, in particular, implementation of appropriations entered in the general budget of the [[OSCURATO:PERSONA]] [OSCURATO:PERSONA] and those stemming from external assigned revenue (C(2021) 947 final) (‘[OSCURATO:PERSONA] C(2021) 947’), which provides, in particular, that CINEA is not to take enforceable recovery decisions within the meaning of [OSCURATO:PERSONA] 299 TFEU. 20 As regards the [OSCURATO:PERSONA]’s argument relating to the action under [OSCURATO:PERSONA] 272 TFEU, it must be held that it is irrelevant since the heads of claim based on that Treaty provision are not directed against the [OSCURATO:PERSONA]. 21 As regards the [OSCURATO:PERSONA]’s first argument relating to the action for annulment under [OSCURATO:PERSONA] 263 TFEU, such an action is generally available against all measures adopted by the EU institutions, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in its legal position (see judgment of 16 July 2020, ADR Center v [OSCURATO:PERSONA] , C‑584/17 P, EU:C:2020:576, paragraph 62 and the case-law cited). Such an action must be brought against the author of the contested act (see order of 19 August 2025, Inescop v [OSCURATO:PERSONA] , T‑681/24, not published, EU:T:2025:797, paragraph 51 and the case-law cited). 22 The applicant has in fact directed the head of claim seeking annulment of the contested act against CINEA and does not contest that that agency is the sole author of that decision. Neither does the applicant argue that CINEA exercised only advisory powers, or that the adoption of the contested act was subject to the prior approval of the [OSCURATO:PERSONA] as delegating institution (see, to that effect, order of 23 October 2019, [OSCURATO:PERSONA]Landau v [OSCURATO:PERSONA] and EACEA , T‑108/18, not published, EU:T:2019:768, paragraph 20 and the case-cited). 23 Moreover, it cannot be deduced either from the file, including the grant agreement, or from the legal framework summarised in paragraphs 24 and 25 below that the contested act was subject to prior approval of the [OSCURATO:PERSONA]. 24 First, under [OSCURATO:PERSONA] 3 of [OSCURATO:PERSONA] (EC) No 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (OJ 2003 L 11, p. 1), the [OSCURATO:PERSONA] may entrust certain tasks relating to the management of EU programmes to executive agencies. Pursuant to that provision, CINEA was established by [OSCURATO:PERSONA] (EU) 2021/173 of 12 February 2021 establishing the [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA], the [OSCURATO:PERSONA] and [OSCURATO:PERSONA], the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] and SMEs [OSCURATO:PERSONA], the [OSCURATO:PERSONA], and the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] and repealing [OSCURATO:PERSONA] 2013/801/EU, 2013/771/EU, 2013/778/EU, 2013/779/EU, 2013/776/EU and 2013/770/EU (OJ 2021 L 50, p. 9) to implement certain EU programmes in the 2021-2027 multiannual financial framework. That implementing decision delegates programme implementation tasks to CINEA, including in respect of the [OSCURATO:PERSONA], subject to the [OSCURATO:PERSONA]’s supervision. 25 [OSCURATO:PERSONA], [OSCURATO:PERSONA] C(2021) 947 provides in [OSCURATO:PERSONA] 4(5) that CINEA is to act in its own name when implementing delegated tasks. Moreover, the first sentence of [OSCURATO:PERSONA] 5(2) of that decision prohibits CINEA from performing any tasks involving a large measure of discretion implying political choices. 26 Furthermore, although [OSCURATO:PERSONA] 58/2003, [OSCURATO:PERSONA] 2021/173 and [OSCURATO:PERSONA] 25 of the grant agreement provide for oversight by the [OSCURATO:PERSONA], those control mechanisms cannot be equated to mechanisms for prior approval of the contested act (see, to that effect and by analogy, order of 6 February 2023, Indetec v [OSCURATO:PERSONA] and Others , T‑250/22, not published, EU:T:2023:61, paragraphs 25 to 27 and the case-law cited). 27 As regards the [OSCURATO:PERSONA]’s second argument relating to the action for annulment under [OSCURATO:PERSONA] 263 TFEU, it must be recalled that an action may be brought before the EU judicature on the basis of [OSCURATO:PERSONA] 263 TFEU only where the contested measure aims to produce binding legal effects falling outside of the contractual relationship between the parties and which involve the exercise of the prerogatives of a public authority conferred on the contracting institution acting in its capacity as an administrative authority (see judgment of 16 July 2020, ADR Center v [OSCURATO:PERSONA] , C‑584/17 P, EU:C:2020:576, paragraph 65 and the case-law cited). 28 Where the [OSCURATO:PERSONA] adopts an enforceable recovery order within the meaning of [OSCURATO:PERSONA] 299 TFEU, the effects and binding force of such a unilateral decision cannot derive from the contractual clauses but derive from that article of the TFEU and the applicable financial regulation. Such an order may be challenged by means of an action for annulment brought before the EU judicature on the basis of [OSCURATO:PERSONA] 263 TFEU (see, to that effect, judgment of 16 July 2020, ADR Center v [OSCURATO:PERSONA] , C‑584/17 P, EU:C:2020:576, paragraphs 69 and 72). 29 It is correct that the fourth paragraph of [OSCURATO:PERSONA] 43.2 of the grant agreement stipulates that if a dispute concerns administrative sanctions, offsetting or an enforceable decision under [OSCURATO:PERSONA] 299 TFEU, the beneficiaries must bring an action before the [OSCURATO:PERSONA] under [OSCURATO:PERSONA] 263 TFEU. [OSCURATO:PERSONA] the last paragraph of [OSCURATO:PERSONA] 43.2 of that agreement, for grants where the granting authority is an EU executive agency, actions against offsetting and enforceable decisions must be brought against the [OSCURATO:PERSONA] rather than the granting authority. 30 However, it has not been established that the contested act is an enforceable decision within the meaning of [OSCURATO:PERSONA] 299 TFEU and [OSCURATO:PERSONA] 43.2 of the grant agreement. 31 First, although [OSCURATO:PERSONA] 22.4(b) of the grant agreement, entitled ‘enforced recovery’, stipulates that where payment is not made by the date specified in a debit note, the amount due will be recovered by drawing on any financial guarantee, it has not been argued that a debit note has been issued to the applicant which has remained unpaid, so that it would be appropriate to recover the outstanding amount by adopting an enforceable decision under [OSCURATO:PERSONA] 299 TFEU. 32 [OSCURATO:PERSONA], the applicant’s reliance on paragraph 58 of the judgment of 16 July 2020, ADR Center v [OSCURATO:PERSONA] (C‑584/17 P, EU:C:2020:576), is misplaced since the finding in that paragraph relates to the [OSCURATO:PERSONA]’s jurisdiction to adopt a decision on the basis of [OSCURATO:PERSONA] 299 TFEU and [OSCURATO:PERSONA] 79(2) of [OSCURATO:PERSONA] (EU, Euratom) No 966/2012 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 25 October 2012 on the financial rules applicable to the general budget of the [OSCURATO:PERSONA] and repealing [OSCURATO:PERSONA] (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), the financial regulation then in force, with a view to recovering debts arising under a contract containing an arbitration clause. It cannot be inferred from that paragraph, or from that judgment generally, that the contested act is such a decision, not only because the contested act was taken by CINEA, but also because the applicant was contractually obliged to provide the completion guarantee, execution of which did not require enforcement by the [OSCURATO:PERSONA] based on [OSCURATO:PERSONA] 299 TFEU. 33 Third, the applicant has not established any relevant analogy between the circumstances of the present case and those in the judgment of 4 October 2012, ED and F [OSCURATO:PERSONA] (C‑669/11, not published, EU:C:2012:618). While it is true that that judgment recognises that the execution of a guarantee may be characterised as having a punitive nature, that characterisation must be understood by reference to the particular legal framework applicable in that case, where the forfeiture of the guarantee was expressly provided for as the legal consequence, as laid down in [OSCURATO:PERSONA] 5(5) of [OSCURATO:PERSONA] (EC) No 360/95 of 22 February 1995 opening individual sales by invitation to tender for the export of vinous alcohol held by intervention agencies (OJ 1995 L 41, p. 14), of a failure to comply with an EU obligation. 34 The applicant’s arguments must therefore be dismissed. 35 It follows from the considerations set out in paragraphs 20 to 34 above that the present action is inadmissible in so far as it is brought against the [OSCURATO:PERSONA]. Costs 36 [OSCURATO:PERSONA] 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 37 Since the applicant has been unsuccessful, it must be ordered, in accordance with the form of order sought by the [OSCURATO:PERSONA], to bear its own costs and to pay those incurred by the [OSCURATO:PERSONA]. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The action is dismissed as inadmissible in so far as it is brought against the [OSCURATO:PERSONA]. 2. [OSCURATO:PERSONA] I [OSCURATO:PERSONA] HoldCo, SL shall pay the costs. Luxembourg, 15 July 2026. V. [OSCURATO:PERSONA] G. [OSCURATO:PERSONA] * Language of the case: English.