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Corte di giustizia UEsentenza

Corte di giustizia UE n. 1720/2018

ECLI:EU:T:2018:360
Testo integrale del provvedimento

Testo integrale del provvedimento

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

20 June 2018 ( * ) ([OSCURATO:PERSONA] agreements concluded in the context of the [OSCURATO:PERSONA] (2007-2013) — ‘[OSCURATO:PERSONA] is [OSCURATO:PERSONA]’ and ‘LadybizIT: Woman entrepreneurship on the verge of ICT’ projects — Ineligible costs — Action for annulment — Lack of jurisdiction of the [OSCURATO:PERSONA])

[OSCURATO:PERSONA] T‑104/15,

KV, represented by S. Pappas, lawyer, applicant, v

[OSCURATO:PERSONA],

represented initially by C. Gheorghiu and K. Skelly, and subsequently by C. Gheorghiu,

I. Rubene and J. King, acting as Agents, defendant, supported by [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (EACEA) , represented initially by H. Monet and D. Homann, and subsequently by H. Monet, acting as Agents, intervener, APPLICATION based on [OSCURATO:PERSONA] 263 TFEU and seeking the annulment of [OSCURATO:PERSONA] C(2014) 9706 final of 16 December 2014, which dismissed as unfounded the appeal brought by the applicant against the decision of the EACEA of 23 September 2014 declaring certain staff costs to be ineligible in the light of the grant agreements concluded on 30 September 2010 and 9 September 2011 between the applicant and the EACEA for the implementation of the [OSCURATO:PERSONA] projects ‘[OSCURATO:PERSONA] is [OSCURATO:PERSONA]’ and ‘LadybizIT: Woman entrepreneurship on the Verge of ICT’,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]),

composed of

I. [OSCURATO:PERSONA], [OSCURATO:PERSONA],

V. Valančius (Rapporteur) and U. [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: E. Coulon, gives the following [OSCURATO:PERSONA] to the dispute 1 The applicant, KV was, before 31 July 2013, a limited partnership governed by Greek law, specialising in particular in providing training, education, advice and expertise. 2 In 2010 and 2011, the applicant took part in several [OSCURATO:PERSONA] projects as part of the [OSCURATO:PERSONA] established by [OSCURATO:PERSONA] 1720/2006/EC of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 15 November 2006 establishing an action programme in the field of lifelong learning (OJ 2006 L 327, p. 45) and implemented by the [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (EACEA).

The applicant concluded grant agreements with the EACEA in the light of its participation in two projects. 3 In the course of the implementation of those [OSCURATO:PERSONA] projects, the EACEA acted under the control of the [OSCURATO:PERSONA] and had to comply with [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). 4 In that regard, [OSCURATO:PERSONA] 22 of [OSCURATO:PERSONA] 58/2003 provided: ‘(1) Any act of an executive agency [injuring] a third party [could] be referred to the [OSCURATO:PERSONA] by any person directly or individually concerned or by a [OSCURATO:PERSONA] for a review of its legality.

Administrative proceedings [were to] be referred to the [OSCURATO:PERSONA] within one month of the day on which the interested party or [OSCURATO:PERSONA] concerned learnt of the act challenged.

After hearing the arguments adduced by the interested party or by the [OSCURATO:PERSONA] concerned and those of the executive agency, the [OSCURATO:PERSONA] [was to] take a decision on the administrative proceedings within two months of the date on which proceedings were instituted.

Without prejudice to the [OSCURATO:PERSONA]’s obligation to reply in writing giving grounds for its decision, the failure by the [OSCURATO:PERSONA] to reply within that deadline [was to] be taken as implicit rejection of the proceedings. … (5) An action for annulment of the [OSCURATO:PERSONA]’s explicit or implicit decision to reject the administrative appeal [was to] be brought before the [OSCURATO:PERSONA] of Justice ...’ 5 The applicant took part in a first project entitled ‘[OSCURATO:PERSONA] is [OSCURATO:PERSONA]’ (‘[OSCURATO:PERSONA] “[OSCURATO:PERSONA]”’) which aimed to improve the quality of training systems through the development of innovative methods and procedures in the field of [OSCURATO:PERSONA] and Training (VET).

The grant agreement for that project was signed on 30 September 2010 by the applicant and by the EACEA for total EU funding in an amount of EUR 286

143.46. 6 The applicant participated in a second project, the ‘LadybizIT: Woman entrepreneurship on the Verge of ICT’ (‘the “Ladybiz” project’), whose purpose was to support actions aimed at encouraging female entrepreneurship.

The grant agreement for that project was signed on 9 September 2011 by the applicant and by the EACEA for total EU funding in an amount of EUR 147

930. 7 The grant agreements relating to the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects are governed by general terms and conditions comprising two parts, of which Part B, in [OSCURATO:PERSONA] II.14.2 thereof, defines ‘eligible costs’ as follows: ‘The eligible direct costs are those costs which ... are identifiable as specific costs directly linked to the performance of the action and which can therefore be booked to it direct.

In particular, the following direct costs are eligible provided that they satisfy the criteria set out in the previous paragraph: – the cost of staff assigned to the action, comprising actual salaries plus social security charges and other statutory costs included in the remuneration, provided that this does not exceed the average rates corresponding to the beneficiary’s usual policy on remuneration. ...’ 8 [OSCURATO:PERSONA] II.14.4 of Part B of the grant agreements lists those costs which are considered as ineligible, which include ‘return on capital’. 9 In addition, the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’) further describes eligible costs in point 2.3.1 thereof, which provides: ‘Costs relating to the following categories of staff are considered: – statutory staff, having either a permanent or a temporary employment contract with the partner; – temporary staff, recruited through a specialised external [OSCURATO:PERSONA].’ 10 With regard to the grant agreements relating to the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects, the EACEA adopted, on 11 and 15 April 2013, two decisions.

By decision of 11 April 2013, the EACEA approved the final report on the ‘[OSCURATO:PERSONA]’ project and determined the final amount of the grant to be EUR 286

143.86. It paid an amount of EUR 77 753.86, excluding the payment of staff costs in the amount of EUR 4

687.74. By a decision of 15 April 2013 the EACEA accepted the final report on the ‘Ladybiz’ project and calculated a final grant amount of EUR 79 686.20, thereby resulting, taking into account the sums already paid to the applicant, the need for the latter to repay EUR 23

864.80. 11 In those two decisions, the EACEA took the view that the remuneration paid to the partners in the applicant in return for their services could not be viewed as staff costs eligible for EU funding. 12 The applicant disputed the lawfulness of those decisions by two complaints to the EACEA of 3 June 2013. 13 By decisions of 7 October 2013, the EACEA rejected the applicant’s complaints and confirmed its decisions of 11 and 15 April 2013 relating to the ineligibility of the remuneration of the applicant’s partners as staff costs. 14 By letter of 6 November 2013, the applicant challenged before the [OSCURATO:PERSONA] the lawfulness of the decisions of the EACEA of 7 October 2013, on the basis of [OSCURATO:PERSONA] 22 of [OSCURATO:PERSONA] 58/2003.

It argued that, in the context of the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects, the partners therein, in particular its managing director, had provided ‘additional’ services under a contract of employment concluded with it.

Therefore, the EACEA incorrectly regarded the costs corresponding to the remuneration of those partners as return on capital and not as staff costs. 15 By decision of 3 January 2014, the [OSCURATO:PERSONA] upheld the applicant’s appeal.

It took the view that, in order to determine whether the costs at issue could be classified as staff costs eligible for EU funding, it was necessary to determine whether there was an employment relationship, within the meaning of [OSCURATO:PERSONA] II.14.2 of the grant agreement and point 2.3.1 of the [OSCURATO:PERSONA], between each partner concerned and the applicant, at the time that the services at issue were provided.

In that regard, it stated that, while it was not disputed that the partners had effectively provided services for which they had received remuneration, the EACEA had not established whether the second element of an employment relationship, namely the element of subordination between the partners and the applicant, was present. [OSCURATO:PERSONA] concluded that it was for the EACEA to examine all the relevant facts in order to determine the nature of the relationship between the applicant and each of the partners in respect of which the staff costs had been declared ineligible. 16 Following the decision of the [OSCURATO:PERSONA], the EACEA received from the applicant documents capable of establishing the nature of its relationship with the partners therein at the time that the services at issue were provided. 17 Having examined the documents submitted, the EACEA, on 23 September 2014, adopted a decision in which it identified and assessed the two employment relationships in question, namely that between the partners in the applicant and the managing director and between the managing director and the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ project managers.

It concluded that the applicant had not proved in law or in fact the existence of an element of subordination in those relationships.

Therefore, it confirmed the ineligibility of the staff costs at issue. 18 Concerning the possible existence of an element of subordination between the managing director and the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ project managers, the EACEA took the view that it was implausible that the managing director of the applicant had been able to work on those projects under the direction of the project managers, who were his subordinates.

It also noted that the applicant’s managing director was responsible for the organisation of the work, the person signing the grant agreement and also the person accountable to the EACEA for the implementation of the project.

In addition, it found that the managing director had appointed himself to work on the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects and had himself determined his remuneration.

Thus, the EACEA held that the element of subordination between the managing director of the undertaking and the project manager had not been established. 19 As regards the relationship between the other partners and the applicant’s managing director, the EACEA noted that, according to Articles 8, 12 and 14 of the applicant’s Articles of Association, no partner exercised any control over the other partners, since all decisions were to be taken by common agreement. 20 Finally, the EACEA took the view that the tasks and working conditions of the managing director and partners were not determined by a body over which they had no control, and that there was no evidence that the managing director or partners were accountable to the project managers. 21 On 23 October 2014, the applicant brought new proceedings before the [OSCURATO:PERSONA] in order to challenge the declaration by the EACEA, in its decision of 23 September 2014, that the remuneration paid to the partners as part of the implementation of the projects was not eligible as staff costs. 22 In support of its appeal, the applicant submitted that, as regards the existence of an element of subordination between its managing director and the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ project managers, the decision of 23 September 2014 precluded the managing director from providing ‘additional’ subordinated services to the applicant, relying, in essence, on his sole capacity as managing director.

As regards relations between the other partners and the managing director, the applicant noted that the EACEA incorrectly based its decision on Articles 8, 12 and 14 of its Articles of Association, which related to the ‘usual’ duties provided by the partners in their capacity as partners, and not the ‘additional services’ they could provide, and which went beyond the ‘usual’ duties provided.

According to the applicant, the ‘additional’ services were governed by a resolution of its general assembly of 20 December 2010.

In that resolution, the general assembly had authorised the managing director to decide that, in certain cases, partners or shareholders were entitled to provide ‘additional’ services as part of a specific project. 23 By decision of 16 December 2014 (‘the contested decision’), the [OSCURATO:PERSONA] rejected the applicant’s request for payment by the EACEA of the financial contribution which it submitted that it was entitled to, paid as compensation to the partners in the applicant as part of the implementation of the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects, and confirmed the decision of the EACEA of 23 September 2014. 24 In its decision, the [OSCURATO:PERSONA] took the view that the distinction made by the applicant between the ‘usual’ duties and ‘additional’ services provided by the partners was purely formal.

It added that, in view of the requirement set out in [OSCURATO:PERSONA] 8 of the applicant’s Articles of Association, pursuant to which the partners were to contribute with their own work to the development of the company, any claim that the services offered by the partners in a given project exceeded the limits of that obligation had to be adequately reasoned.

It found that the applicant had not substantiated its claim. 25 Moreover, as regards the relationship between the managing director of the applicant and the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ project managers, the [OSCURATO:PERSONA] held that the changes introduced by the resolution of the applicant’s general assembly were purely formal and that they could not be considered as establishing a real and genuine relationship of subordination between the managing director and the project managers. [OSCURATO:PERSONA] and forms of order sought 26 By application lodged at the [OSCURATO:PERSONA] on 25 February 2015, the applicant brought the present action. 27 By document lodged at the [OSCURATO:PERSONA] on 12 June 2015, the EACEA sought leave to intervene in support of the form of order sought by the [OSCURATO:PERSONA].

On 23 November 2015, by decision of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], the EACEA was granted leave to intervene in support of the [OSCURATO:PERSONA]. 28 By document lodged at the [OSCURATO:PERSONA] on 31 July 2015, the applicant submitted an application for anonymity, which was granted on 1 September 2015. 29 By decision of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], the present case was assigned to a new Judge-Rapporteur sitting in the [OSCURATO:PERSONA]. 30 Following a change in the composition of the Chambers of the [OSCURATO:PERSONA], pursuant to [OSCURATO:PERSONA] 27(5) of the Rules of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], the Judge-Rapporteur was assigned to the [OSCURATO:PERSONA], to which the present case was accordingly allocated. 31 The applicant claims that the [OSCURATO:PERSONA] should: – principally, annul the contested decision and declare costs in an amount of EUR 74 155 and EUR 72 030 corresponding to the remuneration paid under the ‘additional’ services provided by the partners as part of the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects to be eligible staff costs; – alternatively, declare as eligible under [OSCURATO:PERSONA] II.14 of the [OSCURATO:PERSONA] and Annex III thereto, only the costs corresponding to the ‘additional services’ provided by the partners in implementing the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects; – order the [OSCURATO:PERSONA] to pay the costs. 32 [OSCURATO:PERSONA] and the EACEA contend that the [OSCURATO:PERSONA] should: – dismiss the action; – order the applicant to pay the costs. 33 In response to a question put by the [OSCURATO:PERSONA], the applicant stated that, in the event that the present action for annulment based on [OSCURATO:PERSONA] 263 TFEU is reclassified as an action based on [OSCURATO:PERSONA] 272 TFEU, its heads of claim should be understood as seeking, in essence, that the [OSCURATO:PERSONA] declare as eligible the staff costs corresponding to the remuneration paid to some of its partners in the implementation of the [OSCURATO:PERSONA] projects in question and that the [OSCURATO:PERSONA] incorrectly held to be ineligible. 34 By letters from the [OSCURATO:PERSONA] of 10 November 2017, the parties were invited by the [OSCURATO:PERSONA], by way of measures of organisation of procedure, to reply to two further questions. 35 As regards the first question, the parties were asked to submit arguments to the [OSCURATO:PERSONA] on whether the [OSCURATO:PERSONA] was entitled, on the basis of [OSCURATO:PERSONA] 22 of [OSCURATO:PERSONA] 58/2003, to adopt the contested decision on the eligibility of certain staff costs having regard to the grant agreements relating to the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects concluded between the applicant and the EACEA, since neither [OSCURATO:PERSONA] 2013/776/EU of 18 December 2013 establishing the EACEA and repealing [OSCURATO:PERSONA] 2009/336/EC (OJ 2013 L 343, p. 46), nor [OSCURATO:PERSONA] C(2013) 9189 final of 18 December 2013 delegating powers to the EACEA with a view to performance of tasks linked to the implementation of Union programmes in the field of education, audiovisual and culture, comprising, in particular, implementation of appropriations entered in the general budget of the Union and of the [OSCURATO:PERSONA] (EDF) allocations, appear to give the [OSCURATO:PERSONA] the power to take that decision. 36 As regards the second question, the parties were requested to state before the [OSCURATO:PERSONA] the lessons which they drew from the case-law (order of 7 February 2017, Uniwersytet Wrocławski v [OSCURATO:PERSONA] and REA , T‑137/16, not published, EU:T:2017:70, paragraphs 23 to 25) in relation to the applicant’s heads of claim asking the [OSCURATO:PERSONA] to declare eligible certain staff costs in view of the grant agreements relating to the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects concluded between it and the EACEA. 37 By letters of 24 and 27 November 2017, the [OSCURATO:PERSONA] and the applicant submitted their observations.

Law 38 According to well-established case-law, the lack of competence of the institution which adopted the contested measure constitutes a ground for annulment for reasons of public policy which must be raised by the EU judicature of its own motion, even though none of the parties has asked it to do so (see, to that effect, judgments of 17 December 1959, Société des fonderies de Pont-à-Mousson v

[OSCURATO:PERSONA]

, 14/59, EU:C:1959:31, p. 473, and of 10 May 1960, Germany v

[OSCURATO:PERSONA]

, 19/58, EU:C:1960:19, p. 488).

According to the case-law of the [OSCURATO:PERSONA], the question as to the competence of the authority which adopted the measure must be raised by the [OSCURATO:PERSONA] of its own motion even though none of the parties has asked it to do so (see, to that effect, judgments of 30 September 1982, Amylum v

[OSCURATO:PERSONA]

, 108/81, EU:C:1982:322, paragraph 28, and of 13 July 2000, Salzgitter v

[OSCURATO:PERSONA]

, C‑210/98 P, EU:C:2000:397, paragraph 56 and the case‑law cited). 39 In the present case, the question relating to the existence of a legal basis granting the [OSCURATO:PERSONA] the power to take the contested decision arises. 40 In that respect, it should be noted that [OSCURATO:PERSONA] 58/2003 empowers the [OSCURATO:PERSONA] to set up executive agencies. [OSCURATO:PERSONA] 6(1) and (2) of [OSCURATO:PERSONA] 58/2003, the [OSCURATO:PERSONA] may entrust those agencies with the implementation of one or more Union programmes.

Although the [OSCURATO:PERSONA] continues to perform tasks requiring discretionary powers in translating political choices into action, the agency may be entrusted with managing the phases of the project, adopting the instruments of budget implementation and, on the basis of the power delegated by the [OSCURATO:PERSONA], carrying out the activities required to implement a Community programme, and in particular activities linked to the awarding of contracts and grants (see judgment of 11 December 2013, EMA v

[OSCURATO:PERSONA]

, T‑116/11, EU:T:2013:634, paragraph 292). 41 In addition, [OSCURATO:PERSONA] 4(2) of [OSCURATO:PERSONA] 58/2003 provides that an executive agency is to have legal personality, and it is apparent from [OSCURATO:PERSONA] 20 of that regulation that the implementation of the Community programmes entrusted to executive agencies shall be supervised by the [OSCURATO:PERSONA] and that such scrutiny shall be exercised in accordance with the procedures laid down in [OSCURATO:PERSONA] 6(3). 42 In that regard, [OSCURATO:PERSONA] 6(3) of [OSCURATO:PERSONA] 58/2003 states that the details of the checks to be performed by the [OSCURATO:PERSONA] departments responsible for Community programmes in whose management the executive agency is involved, are defined by the [OSCURATO:PERSONA] in the instrument of delegation. 43 Pursuant to [OSCURATO:PERSONA] 58/2003, the [OSCURATO:PERSONA] established, by [OSCURATO:PERSONA] 2009/336/EC of 20 April 2009, an executive agency, the EACEA, for the management of Community action in the fields of education, audiovisual and culture (OJ 2009 L 101, p. 26).

That decision was repealed by [OSCURATO:PERSONA] 2013/776. 44 [OSCURATO:PERSONA] 1 of [OSCURATO:PERSONA] 2009/336 and of [OSCURATO:PERSONA] 2013/776 provides that the statute of the EACEA is to be governed by [OSCURATO:PERSONA] 58/2003. 45 Furthermore, it follows from [OSCURATO:PERSONA] 4(1) of [OSCURATO:PERSONA] 2009/336 and [OSCURATO:PERSONA] 3(2) of [OSCURATO:PERSONA] 2013/776 that the EACEA’s duties include in particular the management of certain strands of Community programmes, among which is the action programme in the field of lifelong learning (2007-2013), approved by [OSCURATO:PERSONA] 1720/2006.

It is also entrusted with adopting the instruments of budget implementation for revenue and expenditure and carrying out the operations necessary for the management of the programme in question (judgment of 21 October 2010,

[OSCURATO:PERSONA]

v [OSCURATO:PERSONA] and EACEA , T‑439/08, not published, EU:T:2010:442, paragraph 35). 46 In the present case, it is apparent from the documents in the file that the grant agreements relating to the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects were concluded between the applicant and the EACEA, in its own name and not on behalf of the [OSCURATO:PERSONA].

In addition, in response to proceedings brought by the applicant on 6 November 2013 and on 23 October 2014 against the decisions of the EACEA declaring certain staff costs corresponding to the remuneration paid to the partners to be ineligible, the [OSCURATO:PERSONA] adopted two decisions: in the first, dated 3 January 2014, it upheld the applicant’s appeal and asked the EACEA to verify whether there was an employment relationship between the applicant and the partners and, in the second, dated 16 December 2014, which is the contested decision, it rejected the applicant’s request and upheld the EACEA’s decision of 23 September 2014.

It is not disputed, moreover, that those decisions were taken by the [OSCURATO:PERSONA] on the basis of [OSCURATO:PERSONA] 22 of [OSCURATO:PERSONA] 58/2003. 47 It is clear from the very wording of [OSCURATO:PERSONA] 22 of [OSCURATO:PERSONA] 58/2003 that the review of legality exercised by the [OSCURATO:PERSONA] applies only to acts of the executive agencies which injure a third party and not to the acts of the executive agencies in their relations with their contractual partners. 48 In that regard, it should be recalled that, while [OSCURATO:PERSONA] 20 of [OSCURATO:PERSONA] 58/2003 provides that the implementation of the Community programs entrusted to the executive agencies is supervised by the [OSCURATO:PERSONA], it states that that supervision is to follow the procedures adopted in accordance with [OSCURATO:PERSONA] 6(3).

Those provisions state in particular that the details of the checks to be performed by the [OSCURATO:PERSONA] departments responsible for Community programmes, in whose management the executive agency is involved, are defined by the [OSCURATO:PERSONA] in the instrument of delegation. 49 However, it must be noted that neither [OSCURATO:PERSONA] 2013/776 nor [OSCURATO:PERSONA] C(2013) 9189 final of 18 December 2013 delegating powers to the EACEA with a view to performance of tasks linked to the implementation of Union programmes in the field of education, audiovisual and culture, comprising, in particular, implementation of appropriations entered in the general budget of the Union and of the EDF allocations, in particular in Articles 4, 5, 21 and 22 thereof, empower the [OSCURATO:PERSONA] to take decisions of the kind contested in the present case. 50 It follows that the [OSCURATO:PERSONA] was not competent to adopt, on the basis of [OSCURATO:PERSONA] 22 of [OSCURATO:PERSONA] 58/2003, the contested decision rejecting the applicant’s appeal against the decision of 23 September 2014 declaring certain staff costs relating to the grant agreements concerning the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects concluded between the applicant and the EACEA to be ineligible. 51 As regards the second head of claim seeking a declaration that certain staff costs were eligible in the light of the provisions of the grant agreements relating to the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects, it should be noted, as the applicant and the [OSCURATO:PERSONA] acknowledged in their comments in response to the questions put by the [OSCURATO:PERSONA], that the nature of the dispute is contractual, that the grant agreements at issue were concluded between the applicant and the EACEA and not between the applicant and the [OSCURATO:PERSONA], which did not act as a contracting party in adopting the contested decision. 52 It follows that if the present action for annulment were to be reclassified as a contractual claim under [OSCURATO:PERSONA] 272 TFEU, the action would be inadmissible in so far as it is directed against the [OSCURATO:PERSONA] instead of the EACEA, since the grant agreements were concluded between the applicant and the EACEA. 53 In the light of all of the foregoing, it is necessary to annul the contested decision and to dismiss the remainder of the action as inadmissible.

Costs 54 [OSCURATO:PERSONA] 134(1) of the Rules of [OSCURATO:PERSONA], the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 55 Since the [OSCURATO:PERSONA] has been largely unsuccessful, it must, in accordance with the forms of order sought by the applicant, be ordered to pay, in addition to its own costs, the costs incurred by the applicant. 56 In accordance with [OSCURATO:PERSONA] 138(1) of the Rules of [OSCURATO:PERSONA], [OSCURATO:PERSONA] and institutions which have intervened in the proceedings are to bear their own costs. 57 The EACEA is to bear its own costs.

On those grounds,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

hereby:

1. [OSCURATO:PERSONA] C(2014) 9706 final of 16 December 2014;

2. Dismisses the remainder of the action as inadmissible;

3. Orders the [OSCURATO:PERSONA] to bear its own costs and to pay those incurred by KV;

4. Orders the [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (EACEA) to bear its own costs.

[OSCURATO:PERSONA]

Valančius [OSCURATO:PERSONA] in open court in Luxembourg on 20 June 2018. E. Coulon

G. [OSCURATO:PERSONA]

* Language of the case: English.

Anonimizzato ex art. 52 D.Lgs. 196/2003
[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 20 June 2018 ( * ) ([OSCURATO:PERSONA] agreements concluded in the context of the [OSCURATO:PERSONA] (2007-2013) — ‘[OSCURATO:PERSONA] is [OSCURATO:PERSONA]’ and ‘LadybizIT: Woman entrepreneurship on the verge of ICT’ projects — Ineligible costs — Action for annulment — Lack of jurisdiction of the [OSCURATO:PERSONA]) [OSCURATO:PERSONA] T‑104/15, KV, represented by S. Pappas, lawyer, applicant, v [OSCURATO:PERSONA], represented initially by C. Gheorghiu and K. Skelly, and subsequently by C. Gheorghiu, I. Rubene and J. King, acting as Agents, defendant, supported by [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (EACEA) , represented initially by H. Monet and D. Homann, and subsequently by H. Monet, acting as Agents, intervener, APPLICATION based on [OSCURATO:PERSONA] 263 TFEU and seeking the annulment of [OSCURATO:PERSONA] C(2014) 9706 final of 16 December 2014, which dismissed as unfounded the appeal brought by the applicant against the decision of the EACEA of 23 September 2014 declaring certain staff costs to be ineligible in the light of the grant agreements concluded on 30 September 2010 and 9 September 2011 between the applicant and the EACEA for the implementation of the [OSCURATO:PERSONA] projects ‘[OSCURATO:PERSONA] is [OSCURATO:PERSONA]’ and ‘LadybizIT: Woman entrepreneurship on the Verge of ICT’, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of I. [OSCURATO:PERSONA], [OSCURATO:PERSONA], V. Valančius (Rapporteur) and U. [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: E. Coulon, gives the following [OSCURATO:PERSONA] to the dispute 1 The applicant, KV was, before 31 July 2013, a limited partnership governed by Greek law, specialising in particular in providing training, education, advice and expertise. 2 In 2010 and 2011, the applicant took part in several [OSCURATO:PERSONA] projects as part of the [OSCURATO:PERSONA] established by [OSCURATO:PERSONA] 1720/2006/EC of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 15 November 2006 establishing an action programme in the field of lifelong learning (OJ 2006 L 327, p. 45) and implemented by the [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (EACEA). The applicant concluded grant agreements with the EACEA in the light of its participation in two projects. 3 In the course of the implementation of those [OSCURATO:PERSONA] projects, the EACEA acted under the control of the [OSCURATO:PERSONA] and had to comply with [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). 4 In that regard, [OSCURATO:PERSONA] 22 of [OSCURATO:PERSONA] 58/2003 provided: ‘(1) Any act of an executive agency [injuring] a third party [could] be referred to the [OSCURATO:PERSONA] by any person directly or individually concerned or by a [OSCURATO:PERSONA] for a review of its legality. Administrative proceedings [were to] be referred to the [OSCURATO:PERSONA] within one month of the day on which the interested party or [OSCURATO:PERSONA] concerned learnt of the act challenged. After hearing the arguments adduced by the interested party or by the [OSCURATO:PERSONA] concerned and those of the executive agency, the [OSCURATO:PERSONA] [was to] take a decision on the administrative proceedings within two months of the date on which proceedings were instituted. Without prejudice to the [OSCURATO:PERSONA]’s obligation to reply in writing giving grounds for its decision, the failure by the [OSCURATO:PERSONA] to reply within that deadline [was to] be taken as implicit rejection of the proceedings. … (5) An action for annulment of the [OSCURATO:PERSONA]’s explicit or implicit decision to reject the administrative appeal [was to] be brought before the [OSCURATO:PERSONA] of Justice ...’ 5 The applicant took part in a first project entitled ‘[OSCURATO:PERSONA] is [OSCURATO:PERSONA]’ (‘[OSCURATO:PERSONA] “[OSCURATO:PERSONA]”’) which aimed to improve the quality of training systems through the development of innovative methods and procedures in the field of [OSCURATO:PERSONA] and Training (VET). The grant agreement for that project was signed on 30 September 2010 by the applicant and by the EACEA for total EU funding in an amount of EUR 286 143.46. 6 The applicant participated in a second project, the ‘LadybizIT: Woman entrepreneurship on the Verge of ICT’ (‘the “Ladybiz” project’), whose purpose was to support actions aimed at encouraging female entrepreneurship. The grant agreement for that project was signed on 9 September 2011 by the applicant and by the EACEA for total EU funding in an amount of EUR 147 930. 7 The grant agreements relating to the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects are governed by general terms and conditions comprising two parts, of which Part B, in [OSCURATO:PERSONA] II.14.2 thereof, defines ‘eligible costs’ as follows: ‘The eligible direct costs are those costs which ... are identifiable as specific costs directly linked to the performance of the action and which can therefore be booked to it direct. In particular, the following direct costs are eligible provided that they satisfy the criteria set out in the previous paragraph: –        the cost of staff assigned to the action, comprising actual salaries plus social security charges and other statutory costs included in the remuneration, provided that this does not exceed the average rates corresponding to the beneficiary’s usual policy on remuneration. ...’ 8 [OSCURATO:PERSONA] II.14.4 of Part B of the grant agreements lists those costs which are considered as ineligible, which include ‘return on capital’. 9 In addition, the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’) further describes eligible costs in point 2.3.1 thereof, which provides: ‘Costs relating to the following categories of staff are considered: –        statutory staff, having either a permanent or a temporary employment contract with the partner; –        temporary staff, recruited through a specialised external [OSCURATO:PERSONA].’ 10 With regard to the grant agreements relating to the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects, the EACEA adopted, on 11 and 15 April 2013, two decisions. By decision of 11 April 2013, the EACEA approved the final report on the ‘[OSCURATO:PERSONA]’ project and determined the final amount of the grant to be EUR 286 143.86. It paid an amount of EUR 77 753.86, excluding the payment of staff costs in the amount of EUR 4 687.74. By a decision of 15 April 2013 the EACEA accepted the final report on the ‘Ladybiz’ project and calculated a final grant amount of EUR 79 686.20, thereby resulting, taking into account the sums already paid to the applicant, the need for the latter to repay EUR 23 864.80. 11 In those two decisions, the EACEA took the view that the remuneration paid to the partners in the applicant in return for their services could not be viewed as staff costs eligible for EU funding. 12 The applicant disputed the lawfulness of those decisions by two complaints to the EACEA of 3 June 2013. 13 By decisions of 7 October 2013, the EACEA rejected the applicant’s complaints and confirmed its decisions of 11 and 15 April 2013 relating to the ineligibility of the remuneration of the applicant’s partners as staff costs. 14 By letter of 6 November 2013, the applicant challenged before the [OSCURATO:PERSONA] the lawfulness of the decisions of the EACEA of 7 October 2013, on the basis of [OSCURATO:PERSONA] 22 of [OSCURATO:PERSONA] 58/2003. It argued that, in the context of the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects, the partners therein, in particular its managing director, had provided ‘additional’ services under a contract of employment concluded with it. Therefore, the EACEA incorrectly regarded the costs corresponding to the remuneration of those partners as return on capital and not as staff costs. 15 By decision of 3 January 2014, the [OSCURATO:PERSONA] upheld the applicant’s appeal. It took the view that, in order to determine whether the costs at issue could be classified as staff costs eligible for EU funding, it was necessary to determine whether there was an employment relationship, within the meaning of [OSCURATO:PERSONA] II.14.2 of the grant agreement and point 2.3.1 of the [OSCURATO:PERSONA], between each partner concerned and the applicant, at the time that the services at issue were provided. In that regard, it stated that, while it was not disputed that the partners had effectively provided services for which they had received remuneration, the EACEA had not established whether the second element of an employment relationship, namely the element of subordination between the partners and the applicant, was present. [OSCURATO:PERSONA] concluded that it was for the EACEA to examine all the relevant facts in order to determine the nature of the relationship between the applicant and each of the partners in respect of which the staff costs had been declared ineligible. 16 Following the decision of the [OSCURATO:PERSONA], the EACEA received from the applicant documents capable of establishing the nature of its relationship with the partners therein at the time that the services at issue were provided. 17 Having examined the documents submitted, the EACEA, on 23 September 2014, adopted a decision in which it identified and assessed the two employment relationships in question, namely that between the partners in the applicant and the managing director and between the managing director and the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ project managers. It concluded that the applicant had not proved in law or in fact the existence of an element of subordination in those relationships. Therefore, it confirmed the ineligibility of the staff costs at issue. 18 Concerning the possible existence of an element of subordination between the managing director and the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ project managers, the EACEA took the view that it was implausible that the managing director of the applicant had been able to work on those projects under the direction of the project managers, who were his subordinates. It also noted that the applicant’s managing director was responsible for the organisation of the work, the person signing the grant agreement and also the person accountable to the EACEA for the implementation of the project. In addition, it found that the managing director had appointed himself to work on the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects and had himself determined his remuneration. Thus, the EACEA held that the element of subordination between the managing director of the undertaking and the project manager had not been established. 19 As regards the relationship between the other partners and the applicant’s managing director, the EACEA noted that, according to Articles 8, 12 and 14 of the applicant’s Articles of Association, no partner exercised any control over the other partners, since all decisions were to be taken by common agreement. 20 Finally, the EACEA took the view that the tasks and working conditions of the managing director and partners were not determined by a body over which they had no control, and that there was no evidence that the managing director or partners were accountable to the project managers. 21 On 23 October 2014, the applicant brought new proceedings before the [OSCURATO:PERSONA] in order to challenge the declaration by the EACEA, in its decision of 23 September 2014, that the remuneration paid to the partners as part of the implementation of the projects was not eligible as staff costs. 22 In support of its appeal, the applicant submitted that, as regards the existence of an element of subordination between its managing director and the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ project managers, the decision of 23 September 2014 precluded the managing director from providing ‘additional’ subordinated services to the applicant, relying, in essence, on his sole capacity as managing director. As regards relations between the other partners and the managing director, the applicant noted that the EACEA incorrectly based its decision on Articles 8, 12 and 14 of its Articles of Association, which related to the ‘usual’ duties provided by the partners in their capacity as partners, and not the ‘additional services’ they could provide, and which went beyond the ‘usual’ duties provided. According to the applicant, the ‘additional’ services were governed by a resolution of its general assembly of 20 December 2010. In that resolution, the general assembly had authorised the managing director to decide that, in certain cases, partners or shareholders were entitled to provide ‘additional’ services as part of a specific project. 23 By decision of 16 December 2014 (‘the contested decision’), the [OSCURATO:PERSONA] rejected the applicant’s request for payment by the EACEA of the financial contribution which it submitted that it was entitled to, paid as compensation to the partners in the applicant as part of the implementation of the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects, and confirmed the decision of the EACEA of 23 September 2014. 24 In its decision, the [OSCURATO:PERSONA] took the view that the distinction made by the applicant between the ‘usual’ duties and ‘additional’ services provided by the partners was purely formal. It added that, in view of the requirement set out in [OSCURATO:PERSONA] 8 of the applicant’s Articles of Association, pursuant to which the partners were to contribute with their own work to the development of the company, any claim that the services offered by the partners in a given project exceeded the limits of that obligation had to be adequately reasoned. It found that the applicant had not substantiated its claim. 25 Moreover, as regards the relationship between the managing director of the applicant and the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ project managers, the [OSCURATO:PERSONA] held that the changes introduced by the resolution of the applicant’s general assembly were purely formal and that they could not be considered as establishing a real and genuine relationship of subordination between the managing director and the project managers. [OSCURATO:PERSONA] and forms of order sought 26 By application lodged at the [OSCURATO:PERSONA] on 25 February 2015, the applicant brought the present action. 27 By document lodged at the [OSCURATO:PERSONA] on 12 June 2015, the EACEA sought leave to intervene in support of the form of order sought by the [OSCURATO:PERSONA]. On 23 November 2015, by decision of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], the EACEA was granted leave to intervene in support of the [OSCURATO:PERSONA]. 28 By document lodged at the [OSCURATO:PERSONA] on 31 July 2015, the applicant submitted an application for anonymity, which was granted on 1 September 2015. 29 By decision of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], the present case was assigned to a new Judge-Rapporteur sitting in the [OSCURATO:PERSONA]. 30 Following a change in the composition of the Chambers of the [OSCURATO:PERSONA], pursuant to [OSCURATO:PERSONA] 27(5) of the Rules of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], the Judge-Rapporteur was assigned to the [OSCURATO:PERSONA], to which the present case was accordingly allocated. 31 The applicant claims that the [OSCURATO:PERSONA] should: –        principally, annul the contested decision and declare costs in an amount of EUR 74 155 and EUR 72 030 corresponding to the remuneration paid under the ‘additional’ services provided by the partners as part of the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects to be eligible staff costs; –        alternatively, declare as eligible under [OSCURATO:PERSONA] II.14 of the [OSCURATO:PERSONA] and Annex III thereto, only the costs corresponding to the ‘additional services’ provided by the partners in implementing the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects; –        order the [OSCURATO:PERSONA] to pay the costs. 32 [OSCURATO:PERSONA] and the EACEA contend that the [OSCURATO:PERSONA] should: –        dismiss the action; –        order the applicant to pay the costs. 33 In response to a question put by the [OSCURATO:PERSONA], the applicant stated that, in the event that the present action for annulment based on [OSCURATO:PERSONA] 263 TFEU is reclassified as an action based on [OSCURATO:PERSONA] 272 TFEU, its heads of claim should be understood as seeking, in essence, that the [OSCURATO:PERSONA] declare as eligible the staff costs corresponding to the remuneration paid to some of its partners in the implementation of the [OSCURATO:PERSONA] projects in question and that the [OSCURATO:PERSONA] incorrectly held to be ineligible. 34 By letters from the [OSCURATO:PERSONA] of 10 November 2017, the parties were invited by the [OSCURATO:PERSONA], by way of measures of organisation of procedure, to reply to two further questions. 35 As regards the first question, the parties were asked to submit arguments to the [OSCURATO:PERSONA] on whether the [OSCURATO:PERSONA] was entitled, on the basis of [OSCURATO:PERSONA] 22 of [OSCURATO:PERSONA] 58/2003, to adopt the contested decision on the eligibility of certain staff costs having regard to the grant agreements relating to the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects concluded between the applicant and the EACEA, since neither [OSCURATO:PERSONA] 2013/776/EU of 18 December 2013 establishing the EACEA and repealing [OSCURATO:PERSONA] 2009/336/EC (OJ 2013 L 343, p. 46), nor [OSCURATO:PERSONA] C(2013) 9189 final of 18 December 2013 delegating powers to the EACEA with a view to performance of tasks linked to the implementation of Union programmes in the field of education, audiovisual and culture, comprising, in particular, implementation of appropriations entered in the general budget of the Union and of the [OSCURATO:PERSONA] (EDF) allocations, appear to give the [OSCURATO:PERSONA] the power to take that decision. 36 As regards the second question, the parties were requested to state before the [OSCURATO:PERSONA] the lessons which they drew from the case-law (order of 7 February 2017, Uniwersytet Wrocławski v [OSCURATO:PERSONA] and REA , T‑137/16, not published, EU:T:2017:70, paragraphs 23 to 25) in relation to the applicant’s heads of claim asking the [OSCURATO:PERSONA] to declare eligible certain staff costs in view of the grant agreements relating to the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects concluded between it and the EACEA. 37 By letters of 24 and 27 November 2017, the [OSCURATO:PERSONA] and the applicant submitted their observations. Law 38 According to well-established case-law, the lack of competence of the institution which adopted the contested measure constitutes a ground for annulment for reasons of public policy which must be raised by the EU judicature of its own motion, even though none of the parties has asked it to do so (see, to that effect, judgments of 17 December 1959, Société des fonderies de Pont-à-Mousson v [OSCURATO:PERSONA] , 14/59, EU:C:1959:31, p. 473, and of 10 May 1960, Germany v [OSCURATO:PERSONA] , 19/58, EU:C:1960:19, p. 488). According to the case-law of the [OSCURATO:PERSONA], the question as to the competence of the authority which adopted the measure must be raised by the [OSCURATO:PERSONA] of its own motion even though none of the parties has asked it to do so (see, to that effect, judgments of 30 September 1982, Amylum v [OSCURATO:PERSONA] , 108/81, EU:C:1982:322, paragraph 28, and of 13 July 2000, Salzgitter v [OSCURATO:PERSONA] , C‑210/98 P, EU:C:2000:397, paragraph 56 and the case‑law cited). 39 In the present case, the question relating to the existence of a legal basis granting the [OSCURATO:PERSONA] the power to take the contested decision arises. 40 In that respect, it should be noted that [OSCURATO:PERSONA] 58/2003 empowers the [OSCURATO:PERSONA] to set up executive agencies. [OSCURATO:PERSONA] 6(1) and (2) of [OSCURATO:PERSONA] 58/2003, the [OSCURATO:PERSONA] may entrust those agencies with the implementation of one or more Union programmes. Although the [OSCURATO:PERSONA] continues to perform tasks requiring discretionary powers in translating political choices into action, the agency may be entrusted with managing the phases of the project, adopting the instruments of budget implementation and, on the basis of the power delegated by the [OSCURATO:PERSONA], carrying out the activities required to implement a Community programme, and in particular activities linked to the awarding of contracts and grants (see judgment of 11 December 2013, EMA v [OSCURATO:PERSONA] , T‑116/11, EU:T:2013:634, paragraph 292). 41 In addition, [OSCURATO:PERSONA] 4(2) of [OSCURATO:PERSONA] 58/2003 provides that an executive agency is to have legal personality, and it is apparent from [OSCURATO:PERSONA] 20 of that regulation that the implementation of the Community programmes entrusted to executive agencies shall be supervised by the [OSCURATO:PERSONA] and that such scrutiny shall be exercised in accordance with the procedures laid down in [OSCURATO:PERSONA] 6(3). 42 In that regard, [OSCURATO:PERSONA] 6(3) of [OSCURATO:PERSONA] 58/2003 states that the details of the checks to be performed by the [OSCURATO:PERSONA] departments responsible for Community programmes in whose management the executive agency is involved, are defined by the [OSCURATO:PERSONA] in the instrument of delegation. 43 Pursuant to [OSCURATO:PERSONA] 58/2003, the [OSCURATO:PERSONA] established, by [OSCURATO:PERSONA] 2009/336/EC of 20 April 2009, an executive agency, the EACEA, for the management of Community action in the fields of education, audiovisual and culture (OJ 2009 L 101, p. 26). That decision was repealed by [OSCURATO:PERSONA] 2013/776. 44 [OSCURATO:PERSONA] 1 of [OSCURATO:PERSONA] 2009/336 and of [OSCURATO:PERSONA] 2013/776 provides that the statute of the EACEA is to be governed by [OSCURATO:PERSONA] 58/2003. 45 Furthermore, it follows from [OSCURATO:PERSONA] 4(1) of [OSCURATO:PERSONA] 2009/336 and [OSCURATO:PERSONA] 3(2) of [OSCURATO:PERSONA] 2013/776 that the EACEA’s duties include in particular the management of certain strands of Community programmes, among which is the action programme in the field of lifelong learning (2007-2013), approved by [OSCURATO:PERSONA] 1720/2006. It is also entrusted with adopting the instruments of budget implementation for revenue and expenditure and carrying out the operations necessary for the management of the programme in question (judgment of 21 October 2010, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and EACEA , T‑439/08, not published, EU:T:2010:442, paragraph 35). 46 In the present case, it is apparent from the documents in the file that the grant agreements relating to the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects were concluded between the applicant and the EACEA, in its own name and not on behalf of the [OSCURATO:PERSONA]. In addition, in response to proceedings brought by the applicant on 6 November 2013 and on 23 October 2014 against the decisions of the EACEA declaring certain staff costs corresponding to the remuneration paid to the partners to be ineligible, the [OSCURATO:PERSONA] adopted two decisions: in the first, dated 3 January 2014, it upheld the applicant’s appeal and asked the EACEA to verify whether there was an employment relationship between the applicant and the partners and, in the second, dated 16 December 2014, which is the contested decision, it rejected the applicant’s request and upheld the EACEA’s decision of 23 September 2014. It is not disputed, moreover, that those decisions were taken by the [OSCURATO:PERSONA] on the basis of [OSCURATO:PERSONA] 22 of [OSCURATO:PERSONA] 58/2003. 47 It is clear from the very wording of [OSCURATO:PERSONA] 22 of [OSCURATO:PERSONA] 58/2003 that the review of legality exercised by the [OSCURATO:PERSONA] applies only to acts of the executive agencies which injure a third party and not to the acts of the executive agencies in their relations with their contractual partners. 48 In that regard, it should be recalled that, while [OSCURATO:PERSONA] 20 of [OSCURATO:PERSONA] 58/2003 provides that the implementation of the Community programs entrusted to the executive agencies is supervised by the [OSCURATO:PERSONA], it states that that supervision is to follow the procedures adopted in accordance with [OSCURATO:PERSONA] 6(3). Those provisions state in particular that the details of the checks to be performed by the [OSCURATO:PERSONA] departments responsible for Community programmes, in whose management the executive agency is involved, are defined by the [OSCURATO:PERSONA] in the instrument of delegation. 49 However, it must be noted that neither [OSCURATO:PERSONA] 2013/776 nor [OSCURATO:PERSONA] C(2013) 9189 final of 18 December 2013 delegating powers to the EACEA with a view to performance of tasks linked to the implementation of Union programmes in the field of education, audiovisual and culture, comprising, in particular, implementation of appropriations entered in the general budget of the Union and of the EDF allocations, in particular in Articles 4, 5, 21 and 22 thereof, empower the [OSCURATO:PERSONA] to take decisions of the kind contested in the present case. 50 It follows that the [OSCURATO:PERSONA] was not competent to adopt, on the basis of [OSCURATO:PERSONA] 22 of [OSCURATO:PERSONA] 58/2003, the contested decision rejecting the applicant’s appeal against the decision of 23 September 2014 declaring certain staff costs relating to the grant agreements concerning the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects concluded between the applicant and the EACEA to be ineligible. 51 As regards the second head of claim seeking a declaration that certain staff costs were eligible in the light of the provisions of the grant agreements relating to the ‘[OSCURATO:PERSONA]’ and ‘Ladybiz’ projects, it should be noted, as the applicant and the [OSCURATO:PERSONA] acknowledged in their comments in response to the questions put by the [OSCURATO:PERSONA], that the nature of the dispute is contractual, that the grant agreements at issue were concluded between the applicant and the EACEA and not between the applicant and the [OSCURATO:PERSONA], which did not act as a contracting party in adopting the contested decision. 52 It follows that if the present action for annulment were to be reclassified as a contractual claim under [OSCURATO:PERSONA] 272 TFEU, the action would be inadmissible in so far as it is directed against the [OSCURATO:PERSONA] instead of the EACEA, since the grant agreements were concluded between the applicant and the EACEA. 53 In the light of all of the foregoing, it is necessary to annul the contested decision and to dismiss the remainder of the action as inadmissible. Costs 54 [OSCURATO:PERSONA] 134(1) of the Rules of [OSCURATO:PERSONA], the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 55 Since the [OSCURATO:PERSONA] has been largely unsuccessful, it must, in accordance with the forms of order sought by the applicant, be ordered to pay, in addition to its own costs, the costs incurred by the applicant. 56 In accordance with [OSCURATO:PERSONA] 138(1) of the Rules of [OSCURATO:PERSONA], [OSCURATO:PERSONA] and institutions which have intervened in the proceedings are to bear their own costs. 57 The EACEA is to bear its own costs. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. [OSCURATO:PERSONA] C(2014) 9706 final of 16 December 2014; 2. Dismisses the remainder of the action as inadmissible; 3. Orders the [OSCURATO:PERSONA] to bear its own costs and to pay those incurred by KV; 4. Orders the [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (EACEA) to bear its own costs. [OSCURATO:PERSONA] Valančius [OSCURATO:PERSONA] in open court in Luxembourg on 20 June 2018. E. Coulon G. [OSCURATO:PERSONA] * Language of the case: English.