Corte di giustizia UE/2015

62014CO0575_EN [OSCURATO:PERSONA] part [OSCURATO:PERSONA] C‑575/14 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 11 December 2014, [OSCURATO:PERSONA] — [OSCURATO:PERSONA] kai Tilematikis AE, established in Athens (Greece), represented by M. Sfyri and I. Ampazis, dikigoroi, applicant, the other party to the proceedings being: [OSCURATO:PERSONA], represented by L. Cappelletti and S. Delaude, acting as Agents, with an address for service in Luxembourg, defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of R. Silva de Lapuerta, President of the [OSCURATO:PERSONA], K. Lenaerts (Rapporteur), Vice-President of the [OSCURATO:PERSONA], and J.-C. Bonichot, A. Arabadjiev and J.L. da [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: N. Jääskinen, Registrar: A. [OSCURATO:PERSONA], having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order, in accordance with [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA], makes the following [OSCURATO:PERSONA] 1. By its appeal, [OSCURATO:PERSONA] — [OSCURATO:PERSONA] kai Tilematikis AE (‘[OSCURATO:PERSONA]’) asks the [OSCURATO:PERSONA] to set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑340/07 RENV, EU:T:2014:847) (‘the judgment under appeal’), in so far as, by that judgment, the [OSCURATO:PERSONA] dismissed its action for an order that the [OSCURATO:PERSONA] 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-[OSCURATO:PERSONA] and [OSCURATO:PERSONA]’ project. 2. The judgment under appeal was delivered by the [OSCURATO:PERSONA] following the judgment of the [OSCURATO:PERSONA] in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (C‑200/10 P, EU:C:2011:281), by which the latter set aside in part the judgment of the [OSCURATO:PERSONA] in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (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 [OSCURATO:PERSONA] and the [OSCURATO:PERSONA], reference should be made to paragraphs 1 to 50 of the judgment in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑340/07, EU:T:2010:33), to paragraphs 1 to 11 of the judgment in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (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 [OSCURATO:PERSONA] 4 of the general conditions of the EDC‑53007 EEBO/27873 contract (‘the general conditions’) describes [OSCURATO:PERSONA] obligations relating to the reports and supporting evidence it is required to submit to the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] 4(2) of that contract makes provision, more specifically, for [OSCURATO:PERSONA] obligations relating to the cost statements that it is required to provide to the [OSCURATO:PERSONA]. Forms of order sought by the parties 5. [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] should: – set aside the judgment under appeal; – order the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA]’s failure to comply with its contractual obligations in the context of the EDC‑53007 EEBO/27873 contract; – in the alternative, order the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 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. [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: – dismiss the appeal and – order [OSCURATO:PERSONA] to pay the costs incurred in the appeal and leave undisturbed the order as to costs of the [OSCURATO:PERSONA]. The appeal 7. [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, where the appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a report from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], dismiss the appeal in whole or in part by reasoned order. Arguments of the parties 8. In its single plea, [OSCURATO:PERSONA] complains that the [OSCURATO:PERSONA] distorted the evidence in the file. More specifically, the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] erred in holding, in paragraphs 50, 52, 53 and 55 of that judgment, that [OSCURATO:PERSONA] 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, [OSCURATO:PERSONA] claims first that the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] should have taken into consideration [OSCURATO:PERSONA] 4 thereof. It follows from the general conditions, taken as a whole, that the documents described in [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] in order to justify the costs incurred are the cost statements referred to in [OSCURATO:PERSONA] 4 of the general conditions. 10. [OSCURATO:PERSONA] claims, moreover, that, in the letters it sent to it, and in particularly in a letter of 6 October 2004, the [OSCURATO:PERSONA] never contested the use of those cost statements as evidence and never requested the production of the time sheets provided for in [OSCURATO:PERSONA] 14 of the general conditions. As the [OSCURATO:PERSONA] itself noted in paragraph 36 of the judgment under appeal, certain costs were, moreover, accepted by the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 4 of the general conditions and the time sheets provided for in [OSCURATO:PERSONA] 14(1) of those conditions. That distortion of the general conditions led the [OSCURATO:PERSONA] to apply incorrectly the requirements and formalities laid down under those conditions concerning those different statements, and therefore wrongly to reject [OSCURATO:PERSONA] arguments relating to the reimbursement of personnel costs and overheads, in paragraphs 52 and 55 of the judgment under appeal. 12. [OSCURATO:PERSONA], [OSCURATO:PERSONA] 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. [OSCURATO:PERSONA] should have exercised its discretion to request the production of additional evidence, by way of a measure of organisation of procedure under [OSCURATO:PERSONA] 64 of its Rules of Procedure. 13. [OSCURATO:PERSONA] considers that the single plea is inadmissible in part and manifestly unfounded in its entirety in any event. Findings of the [OSCURATO:PERSONA] 14. It should first of all be noted that although the cost statements provided for in [OSCURATO:PERSONA] 4 of the general conditions are indeed the only evidence relating to costs which the co-contractor is required systematically to produce to the [OSCURATO:PERSONA] within specified time limits, that fact, emphasised by [OSCURATO:PERSONA], 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 [OSCURATO:PERSONA] 13 of the general conditions. 15. Therefore, contrary to [OSCURATO:PERSONA] arguments, the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 13 of the general conditions were satisfied in the present case. 16. The fact that the [OSCURATO:PERSONA] ‘already accepted’ certain costs on the basis of the cost statements considered, noted by the [OSCURATO:PERSONA] in paragraph 36 of the judgment under appeal, does not rebut the finding made in the previous paragraph, since the [OSCURATO:PERSONA] remains free to request its co-contractor to prove that the conditions laid down in [OSCURATO:PERSONA] 13 of the general conditions are satisfied with respect to other costs which it has not definitively accepted. Likewise, the fact, relied upon by [OSCURATO:PERSONA], that the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] held, in paragraph 36 of the judgment under appeal, that the documents produced by [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] fails to identify any specific evidence that the [OSCURATO:PERSONA] distorted in reaching that conclusion. 18. Moreover, concerning the third cost statement referred to in paragraph 27 of the judgment under appeal, [OSCURATO:PERSONA] has not shown any distortion of the evidence in the file concerning the application made by the [OSCURATO:PERSONA], in paragraphs 46 to 49 of the judgment under appeal, of the general conditions. In particular, the [OSCURATO:PERSONA] was correct to point out, in paragraphs 48 and 49 of the judgment under appeal, that [OSCURATO:PERSONA] had to prove that it certified the time sheets at least once a month, in accordance with [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 13(1) of those conditions. 19. It follows from the above that [OSCURATO:PERSONA] has not established, in the present case, a distortion of the evidence in the file capable of calling into question the rejection by the [OSCURATO:PERSONA], 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 [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] distorted the evidence establishing the veracity of the costs declared by it, that the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] held, in paragraph 50 of the judgment under appeal, that the other documents provided by [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 14(1) of the general conditions. According to the settled case-law of the [OSCURATO:PERSONA] of Justice, complaints directed against grounds included in a judgment of the [OSCURATO:PERSONA] purely for the sake of completeness cannot lead to the judgment being set aside and are therefore ineffective (judgment in [OSCURATO:PERSONA] v IPK International , C‑336/13 P, EU:C:2015:83, paragraph 33 and the case-law cited). 21. [OSCURATO:PERSONA], regarding [OSCURATO:PERSONA] argument that the [OSCURATO:PERSONA] should have adopted a measure of organisation of procedure seeking the production of documents held by [OSCURATO:PERSONA] itself, it should be noted that it is for the latter to produce before the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] contends, that argument constitutes, in essence, an offer of evidence submitted for the first time before the [OSCURATO:PERSONA] of Justice. Such an offer of evidence, which [OSCURATO:PERSONA] could have presented before the [OSCURATO:PERSONA], 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. [OSCURATO:PERSONA] 184(2) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice provides that, where the appeal is unfounded, the [OSCURATO:PERSONA] is to make a decision as to costs. [OSCURATO:PERSONA] 138(1) of those rules, applicable to the procedure on appeal by virtue of [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] has applied for costs and [OSCURATO:PERSONA] has been unsuccessful, [OSCURATO:PERSONA] must be ordered to pay the costs in the present appeal proceedings. 25. [OSCURATO:PERSONA] also asks the [OSCURATO:PERSONA] to order the [OSCURATO:PERSONA] to pay the costs incurred at first instance, in accordance with the second subparagraph of [OSCURATO:PERSONA] 87(3) of the Rules of Procedure of the [OSCURATO:PERSONA], although the [OSCURATO:PERSONA] dismissed it s action and even assuming that its appeal is dismissed. [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] on costs must be rejected as inadmissible by virtue of the second paragraph of [OSCURATO:PERSONA] 58 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], 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 [OSCURATO:PERSONA] has been rejected in the present case, its application concerning the apportionment of costs at first instance is manifestly inadmissible. [OSCURATO:PERSONA] part On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the appeal. 2. [OSCURATO:PERSONA] — [OSCURATO:PERSONA] kai Tilematikis AE to pay the costs.