Corte di giustizia UE/2019

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 30 January 2019 ( * ) (Action for annulment — Financial assistance in the field of [OSCURATO:PERSONA] — Transport sector for the period 2014-2020 — Lis pendens — Inadmissibility) [OSCURATO:PERSONA] T‑149/16 [OSCURATO:PERSONA] BV, established in Amsterdam (the Netherlands), represented initially by P. Glazener, then by Y. de Vries and D. Coumans and finally by Y. de Vries and J. de Kok, lawyers, applicant, v [OSCURATO:PERSONA], represented by J. Hottiaux and J. Samnadda, acting as Agents, defendant, APPLICATION under [OSCURATO:PERSONA] 263 TFEU for annulment of [OSCURATO:PERSONA] C(2015) 5274 final of 31 July 2015 establishing the list of proposals selected for receiving EU financial assistance in the field of [OSCURATO:PERSONA] (CEF) — Transport sector following the calls for proposals launched on 11 September 2014 based on the Multi-[OSCURATO:PERSONA], [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of H. [OSCURATO:PERSONA], [OSCURATO:PERSONA], J. Schwarcz and C. Iliopoulos ([OSCURATO:PERSONA]), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: E. Coulon, makes the following [OSCURATO:PERSONA] to the dispute 1 The applicant, [OSCURATO:PERSONA] BV, is a company established in Amsterdam (Netherlands). It operates a fleet of multi-purpose vessels. 2 On 11 September 2014, the Innovation and [OSCURATO:PERSONA] (INEA), set up in 2014 by [OSCURATO:PERSONA] 2013/801/EU of 23 December 2013 establishing the INEA and repealing [OSCURATO:PERSONA] 2007/60/EC as amended by [OSCURATO:PERSONA] 2008/593/EC (OJ 2013 L 352, p. 65), launched a call for proposals under the [OSCURATO:PERSONA] (‘CEF’) — Transport sector, on the basis of the Multi-[OSCURATO:PERSONA] adopted in 2014. 3 On 25 February 2015 the applicant submitted a proposal for financial support in response to the abovementioned call for proposals. 4 On 17 July 2015, INEA sent an email to the applicant, signed by the INEA team responsible for the evaluation (‘the email of 17 July 2015’). The text of that email was as follows: ‘... Following the calls for proposals published on 11 September 2014 under the … (CEF) in the field of transport, the evaluation of the eligible proposals has taken place and the [OSCURATO:PERSONA] has drawn up a list of proposals selected for receiving [OSCURATO:PERSONA] financial assistance. On 10 July 2015, the CEF [OSCURATO:PERSONA] … gave a positive opinion on this draft list. We regret to inform you that your application has not been successful in the above procedure, as explained below: ... Procedural steps for the adoption by the … [OSCURATO:PERSONA] of a decision on the selection and award of grants ... [are] currently ongoing. In the unlikely case that the adoption of this decision results in changes in relation to your proposal, you will be informed separately by email. ... Any request you may make … or any complaint for maladministration, will have neither the purpose nor the effect of suspending the time limit for lodging an action for annulment of the [OSCURATO:PERSONA] decision notified by this message, which must be done within two months of notification of this message ...’ 5 On 31 July 2015, the [OSCURATO:PERSONA] adopted [OSCURATO:PERSONA] C(2015) 5274 final establishing the list of proposals selected for receiving EU financial assistance in the field of CEF — Transport sector following the calls for proposals launched on 11 September 2014 based on the Multi-[OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA] decision of 31 July 2015’). That decision approved the list of projects of common interest in the field of CEF which had been selected for receiving EU financial assistance, the estimated total eligible costs of the actions, the percentage of the financial assistance out of the estimated total eligible costs and the respective maximum amounts of the financial assistance. 6 [OSCURATO:PERSONA] decision of 31 July 2015 was not communicated to the applicant, who, according to the [OSCURATO:PERSONA], did not receive any other information with the exception of the email of 17 July 2015. That decision was placed on the [OSCURATO:PERSONA] website on 12 October 2015 and, separately, on INEA’s website on 14 October 2015. 7 Prior to that placing on the website, on 25 September 2015, that is, within the deadline set by the email of 17 July 2015, the applicant lodged an action for annulment before the [OSCURATO:PERSONA], registered under number T‑564/15, against the [OSCURATO:PERSONA], in which it contends that the [OSCURATO:PERSONA] should annul the email of 17 July 2015 on the basis of the same pleas as those developed in the present action. 8 On 18 December 2015, the [OSCURATO:PERSONA], in response to the action of 25 September 2015, registered under number T‑564/15, raised an objection of inadmissibility in support of which it put forward two pleas of inadmissibility, namely, first, that the email of 17 July 2015 is not an act open to challenge and, second, that the fact that the [OSCURATO:PERSONA] was not the institution which adopted that act and that, consequently, the action cannot be directed against it. Events subsequent to the bringing of the action 9 By order of 11 October 2016, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑564/15, not published, ‘the order of the [OSCURATO:PERSONA]’, EU:T:2016:611), the [OSCURATO:PERSONA] dismissed as inadmissible the action of 25 September 2015, registered under number T‑564/15. In support of that decision, the [OSCURATO:PERSONA] upheld the two pleas of inadmissibility raised by the [OSCURATO:PERSONA] in support of the objection of inadmissibility. 10 By application lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of Justice on 8 December 2016, the applicant brought an appeal against the order of the [OSCURATO:PERSONA], pursuant to [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA]. 11 By judgment of 28 June 2018, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (C‑635/16 P, EU:C:2018:510, ‘the judgment on the appeal’), the [OSCURATO:PERSONA] of Justice set aside the judgment of the [OSCURATO:PERSONA], referred the case back to the [OSCURATO:PERSONA] and reserved the costs. [OSCURATO:PERSONA] held that the [OSCURATO:PERSONA] had erred in law in that it had dismissed as inadmissible the action brought by the applicant on the ground that the act challenged was the email of 17 July 2015 and rejected the applicant’s request that its action be regarded as being directed against the [OSCURATO:PERSONA] of 31 July 2015 (judgment on the appeal, paragraph 73). Procedure and forms of order sought 12 By application lodged at the [OSCURATO:PERSONA] on 11 April 2016, the applicant brought the present action. 13 By letter of 6 October 2016, the parties were informed of the change in the composition of the Chambers of the [OSCURATO:PERSONA] pursuant to [OSCURATO:PERSONA] 27(5) of the Rules of Procedure of the [OSCURATO:PERSONA] and the assignment of the [OSCURATO:PERSONA] to the [OSCURATO:PERSONA], to which the present case was therefore assigned. 14 By separate document lodged at the [OSCURATO:PERSONA] on 10 October 2016, the [OSCURATO:PERSONA] raised an objection of inadmissibility under [OSCURATO:PERSONA] 130 of the Rules of Procedure. On 28 November 2016, the applicant submitted its observations on the objection of inadmissibility. By order of 7 April 2017, consideration of the objection of inadmissibility was reserved for the final judgment. 15 By letter lodged at the [OSCURATO:PERSONA] on 6 October 2017, the applicant requested a hearing. 16 By document lodged at the [OSCURATO:PERSONA] on 29 June 2018, the applicant requested that the present case be joined to [OSCURATO:PERSONA] T‑564/15. 17 By measure of organisation of procedure of 24 July 2018, the [OSCURATO:PERSONA] invited the parties to submit their observations on a possible lis pendens which the appeal in the present case could face having regard to [OSCURATO:PERSONA] T‑564/15, account being taken of the interpretation of the subject matter of the action in the latter case which had been accepted by the [OSCURATO:PERSONA] in paragraph 71 of the judgment on the appeal. 18 The applicant and the [OSCURATO:PERSONA] complied with that request on 31 July and 3 August 2018 respectively. 19 The applicant stated in its observations of 31 July 2018 that the [OSCURATO:PERSONA]’s considerations in the judgment on the appeal left little doubt that the action in [OSCURATO:PERSONA] T‑564/15 and in the present case concerned the same subject matter and involved the same parties, which created a situation of lis pendens. [OSCURATO:PERSONA] maintained, in its observations of 3 August 2018, that the conditions of lis pendens with regard to the action in [OSCURATO:PERSONA] T‑564/15 were fulfilled and that the action in the present case was therefore inadmissible. 20 On 21 August 2018, the [OSCURATO:PERSONA] lodged its observations on the joinder request. By decision of 18 September 2018, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] decided not to join the two cases at that stage of the procedure. 21 In its application, the applicant claims that the [OSCURATO:PERSONA] should: –        annul the [OSCURATO:PERSONA] decision of 31 July 2015; –        order the [OSCURATO:PERSONA] to take a new decision with respect to the applicant’s proposal, taking account of the judgment of the [OSCURATO:PERSONA], within three months from the date of judgment in the present case; –        order the [OSCURATO:PERSONA] to pay the costs. 22 In support of its objection of inadmissibility, the [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        dismiss the action as inadmissible; –        order the applicant to pay the costs. 23 In its observations on the objection of inadmissibility, the applicant claims that the [OSCURATO:PERSONA] should: –        dismiss the objection of inadmissibility; –        order the [OSCURATO:PERSONA] to pay the costs. 24 In its defence, the [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        dismiss the action as unfounded; –        order the applicant to pay the costs. 25 In its rejoinder, the [OSCURATO:PERSONA] states that its heads of claim are unchanged. 26 In its observations of 3 August 2018, the [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        dismiss the action as inadmissible due to lis pendens. Law 27 [OSCURATO:PERSONA] 129 of its Rules of Procedure, the [OSCURATO:PERSONA] may at any time, of its own motion, after hearing the main parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case, including the conditions governing the admissibility of an action (see order of 15 March 2016, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑576/14, not published, EU:T:2016:169, paragraph 13 and the case-law cited). 28 According to settled case-law, an action which is between the same parties and has the same purpose, on the basis of the same submissions, as an action brought previously must be dismissed as inadmissible (see orders of 21 June 2012, Hamas v Council , T‑531/11, not published, EU:T:2012:317, paragraph 15 and the case-law cited, and of 7 January 2015, Cham and [OSCURATO:PERSONA] v Council , T‑607/14, not published, EU:T:2015:12, paragraph 17 and the case-law cited). 29 In the present case, first, it should be noted that, in accordance with the judgment on the appeal, the action in [OSCURATO:PERSONA] T‑564/15 should be interpreted as seeking annulment of the [OSCURATO:PERSONA] decision of 31 July 2015. 30 Second, the action brought in the present case and the action brought in [OSCURATO:PERSONA] T‑564/15 are based on the same pleas. 31 Third, the present action and the action in [OSCURATO:PERSONA] T‑564/15 have been brought by the same applicant and concern the same defendant. 32 The present action therefore involves the same parties in opposition and serves the same purpose, on the basis of the same pleas, as the action in [OSCURATO:PERSONA] T‑564/15. 33 It follows that the present action, which was lodged after that in [OSCURATO:PERSONA] T‑564/15, must be dismissed as inadmissible. Costs 34 [OSCURATO:PERSONA] 134 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. However, under [OSCURATO:PERSONA] 135(1) of those rules, if equity so requires, the [OSCURATO:PERSONA] may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own, or even that he is not to be ordered to pay any. 35 In that regard, the applicant requests that the [OSCURATO:PERSONA] be ordered to pay the costs which result from the unfounded objection of inadmissibility raised in [OSCURATO:PERSONA] T‑564/15. 36 In the present case, account being taken of the circumstances which gave rise to the situation of lis pendens, [OSCURATO:PERSONA] 135(1) of the Rules of Procedure will be applied by ordering each party to bear its own costs. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) Hereby orders: 1. The action is dismissed as being inadmissible. 2. [OSCURATO:PERSONA] BV and the [OSCURATO:PERSONA] shall bear their own costs. Luxembourg, 30 January 2019. E. Coulon H. [OSCURATO:PERSONA] * Language of the case: English.