Corte di giustizia UE n. 2004/2018

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 8 February 2018 ( * ) (Law governing the institutions — [OSCURATO:PERSONA] — Decision awarding a grant to a political foundation for the financial year 2017 and providing for pre-financing at a rate of 33% of the maximum grant amount and the obligation to provide a pre-financing bank guarantee — Action for annulment — Challengeable act — Admissibility — Obligation of impartiality — [OSCURATO:PERSONA] of the defence — [OSCURATO:PERSONA] regulation — Rules of application of the [OSCURATO:PERSONA] — [OSCURATO:PERSONA] (EC) No 2004/2003 — Proportionality) [OSCURATO:PERSONA] T‑118/17, Institute for [OSCURATO:PERSONA] in Europe ASBL (IDDE), established in Brussels (Belgium), represented by E. Plasschaert and É. Montens, lawyers, applicant, v [OSCURATO:PERSONA], represented by C. Burgos and S. Alves, acting as Agents, defendant, APPLICATION pursuant to [OSCURATO:PERSONA] 263 TFEU seeking the annulment of [OSCURATO:PERSONA] decision FINS-2017-28 of 12 December 2016 concerning the award of a grant to the applicant insofar as that decision suspends the payment of that grant for the financial year 2017 and limits the pre-financing to 33% of the maximum grant amount subject to a bank guarantee being provided, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of A.M. [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA], R. [OSCURATO:PERSONA] and J. [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: E. Coulon, gives the following [OSCURATO:PERSONA] to the dispute 1 The applicant, the Institute for [OSCURATO:PERSONA] in Europe ASBL (IDDE) is a political foundation at [OSCURATO:PERSONA] level within the meaning of [OSCURATO:PERSONA] 2(4) of [OSCURATO:PERSONA] (EC) No 2004/2003 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 4 November 2003 on the regulations governing political parties at [OSCURATO:PERSONA] level and the rules regarding their funding (OJ 2003 L 297, p. 1). 2 The applicant is affiliated to the Alliance for [OSCURATO:PERSONA] in Europe (ADDE), a political party at [OSCURATO:PERSONA] level within the meaning of [OSCURATO:PERSONA] 2(3) of [OSCURATO:PERSONA] 2004/2003. 3 In the context of the financial year 2015, the applicant presented for the first time an application for funding from the general EU budget. It obtained a maximum grant of EUR 730 053. 4 The applicant also submitted an application for funding for the financial year 2016, which it obtained and which is unrelated to the present dispute. 5 On 30 September 2016 the applicant submitted an application for funding for the financial year 2017. 6 At its meeting of 21 November 2016, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] examined the final report submitted by the applicant following the closure of the financial year 2015. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] declared ineligible an amount of EUR 33 863.50 and determined the final grant awarded to the applicant at EUR 672 966.98. The applicant does not contest that decision. 7 According to information published by the press on 24 November 2016, the applicant had put in place a system in order to receive donations in exchange for awarding contracts for higher amounts to the donors. 8 By letter of 30 November 2016, the [OSCURATO:PERSONA] for Finance of the [OSCURATO:PERSONA] informed the applicant that, in response to that information, its services had re-examined the accounts for the financial year 2015. They allegedly identified several cases in which a company or individual had made a donation and that same company or a company linked to the donor was awarded contracts for sums exceeding the amount of the relevant donation. Those donations were supposedly used to reach the minimum threshold of 15% own resources necessary to receive the grant from the [OSCURATO:PERSONA]. For those reasons, the [OSCURATO:PERSONA] for Finance stated that a proposed decision to suspend the payment of the final balance of the grant for the financial year 2015 would be included in the agenda of the meeting of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] scheduled for 12 December 2016. The applicant was invited to submit its observations on or before 6 December 2016. 9 By letter of 2 December 2016, the [OSCURATO:PERSONA] for Finance of the [OSCURATO:PERSONA], referring to his letter of 30 November 2016 and to the allegations set out therein, informed the applicant that the case would be brought to the attention of the [OSCURATO:PERSONA][OSCURATO:PERSONA] (OLAF). In addition, he pointed out to the applicant that, taking into account the serious allegations regarding the establishment of a system whereby donations were received in exchange for the award of contracts, they planned to suspend the payment of the grant for the financial year 2017. That issue was to be considered by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] during its meeting of 12 December 2016. The applicant was invited to submit its observations on or before 8 December 2016. 10 On 6 December 2016, the applicant submitted its observations on the suspension of the payment of the final balance of the grant for the financial year 2015, in which it rejected the allegations in question and contested the planned decision. Furthermore, it requested to be heard during the meeting of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] scheduled for 12 December 2016. 11 On 8 December 2016, the applicant submitted its observations on the suspension of the grant for the financial year 2017, in which it rejected the allegations in question and contested the planned suspension. 12 During its meeting of 12 December 2016, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] decided to adopt decision FINS-2017-28, awarding the applicant a maximum grant of EUR 670 654.76 for the financial year 2017, but suspending its payment until the irregularities allegedly committed by the applicant had been investigated (‘the contested decision’). [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] added that, if those irregularities were not subsequently established, the grant would be paid, but that the pre-financing would be limited to 33% of the maximum amount of the grant, and its payment would be conditional upon the presentation of a first demand bank guarantee. That decision was signed and sent to the applicant on 15 December 2016. 13 At the same meeting of 12 December 2016, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] decided to suspend the payment of the final balance of the grant for the financial year 2015 until the necessary investigation was concluded. That decision is not challenged in the present dispute. 14 On 20 December 2016, the [OSCURATO:PERSONA] referred the matter in question to OLAF. Procedure and forms of order sought 15 By application lodged at the [OSCURATO:PERSONA] on 24 February 2017, the applicant brought the present action. 16 By separate document lodged at the [OSCURATO:PERSONA] on the same date, the applicant made an application for interim measures. 17 That application for interim measures was dismissed by the order of 4 July 2017, IDDE v [OSCURATO:PERSONA] (T‑118/17 R, not published, EU:T:2017:465), and the costs at that instance were reserved. 18 The applicant claims that the [OSCURATO:PERSONA] should: –        declare the action admissible; –        annul the contested decision insofar as it suspends the payment of that grant for the financial year 2017 and limits the pre-financing to 33% of the maximum amount of the grant subject to a bank guarantee being provided; –        order the [OSCURATO:PERSONA] to pay the costs. 19 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        dismiss the action as inadmissible in part; –        dismiss the remainder of the action as unfounded; –        order the applicant to pay the costs. 20 [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) decided, in application of [OSCURATO:PERSONA] 106(3) of the Rules of Procedure, to rule on the action without an oral part of the procedure. Law 21 The applicant asks that the contested decision be annulled, first, insofar as it suspends the payment of that grant for the financial year 2017 and, second, limits the pre-financing to 33% of the maximum amount of the grant subject to a bank guarantee being provided. Decision to suspend the payment of the grant for the financial year 2017 22 In support of its application for annulment of the decision to suspend the payment of the grant for the financial year 2017, including the suspension of the pre-financing, the applicant relies upon three pleas in law, alleging, first, breach of the principle of good administration and the rights of the defence, second, infringement of [OSCURATO:PERSONA] 135 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’), [OSCURATO:PERSONA] 208(1) of [OSCURATO:PERSONA] (EU) No 1268/2012 of 29 October 2012 on the rules of application of [OSCURATO:PERSONA] 966/2012 (OJ 2012 L 362, p. 1)(‘ rules of application of the financial regulation’), the first paragraph of [OSCURATO:PERSONA] 8, sub-paragraph (a), of the Decision of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 29 March 2004 laying down the procedures for implementing [OSCURATO:PERSONA] 2004/2003, as amended (OJ 2014 C 63, p. 1)(‘the decision of the [OSCURATO:PERSONA] of 29 March 2004’) and [OSCURATO:PERSONA] II.13.2 of the contested decision, and, third, breach of the principle of proportionality. Breach of the principle of good administration and of the rights of the defence 23 The first plea is divided into two parts. By its first part, the applicant submits that the [OSCURATO:PERSONA] infringed the principle of good administration and [OSCURATO:PERSONA] 41 of the Charter of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], insofar as the contested decision is allegedly neither fair nor impartial owing to the composition of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. In particular, the applicant argues that the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], composed of the [OSCURATO:PERSONA] and the 14 Vice-Presidents of the [OSCURATO:PERSONA], does not include a single representative of the ‘eurosceptic’ parties. Therefore, taking into account its composition, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] is not capable of ensuring impartial and objective control of the funds allocated to the [OSCURATO:PERSONA] political parties and to the political foundations linked to them. Further, this is allegedly confirmed by the creation of an independent authority for those purposes pursuant to [OSCURATO:PERSONA] 6 of [OSCURATO:PERSONA] (EU, Euratom) No 1141/2014 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 22 October 2014 on the statute and funding of [OSCURATO:PERSONA] political parties and [OSCURATO:PERSONA] political foundations (OJ 2014 L 317, p. 1). 24 [OSCURATO:PERSONA] disputes the applicant’s arguments. 25 [OSCURATO:PERSONA] 41(1) of the Charter of [OSCURATO:PERSONA], headed ‘Right to good administration’, every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the [OSCURATO:PERSONA]. 26 According to case-law, the principle of good administration entails an obligation for the competent institution to examine with care and impartiality all the relevant elements of the case at hand (see, to that effect, judgment of 8 June 2017, Schniga v CPVO , C‑625/15 P, EU:C:2017:435, paragraph 47). 27 Further, the requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the institution concerned (see judgment of 11 July 2013, Ziegler v [OSCURATO:PERSONA] , C‑439/11 P, EU:C:2013:513, paragraph 155). It follows from case-law that subjective impartiality is presumed until proof to the contrary is adduced (judgments of 1 July 2008, Chronopost and [OSCURATO:PERSONA] v UFEX and Others , C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 54, and of 19 February 2009, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑308/07 P, EU:C:2009:103, paragraph 46). 28 In that regard, it must be noted that the applicant has put forward no argument challenging the personal impartiality of the members of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] that adopted the contested decision. In reality, the applicant is of the opinion that, by its very nature, the composition of the [OSCURATO:PERSONA] is sufficient in itself to undermine the objective impartiality of that body. 29 That argument cannot be upheld for three reasons. 30 First, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] is a collegiate body, composed of the [OSCURATO:PERSONA] and the 14 Vice-Presidents of the [OSCURATO:PERSONA], who are all elected by the Members of [OSCURATO:PERSONA] under Articles 16 and 17 of the Rules of Procedure of the [OSCURATO:PERSONA] in force at the time. Therefore, the composition of that body is intended to reflect the plurality of the [OSCURATO:PERSONA] itself. 31 Second, it is irrelevant that [OSCURATO:PERSONA] 1141/2014 created an independent authority to exercise certain functions relating to political foundations at [OSCURATO:PERSONA] level, given that that regulation does not apply to the facts giving rise to the present dispute. According to [OSCURATO:PERSONA] 41 thereof, that regulation only became applicable from 1 January 2017. In any case, according to [OSCURATO:PERSONA] 18(4) of [OSCURATO:PERSONA] 1141/2014 read in conjunction with [OSCURATO:PERSONA] 5(1) of the Decision of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 June 2017 laying down the procedures for implementing [OSCURATO:PERSONA] 1141/2014 (OJ 2017 C 205, p. 2), competence in taking decisions on funding application still rests with the [OSCURATO:PERSONA]. 32 Third, as the [OSCURATO:PERSONA] correctly indicates, it has to be found that the applicant has raised no plea of illegality under [OSCURATO:PERSONA] 277 TFEU against the provisions governing the composition of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] and its competence to take decisions on the funding of political foundations at [OSCURATO:PERSONA] level, such as Articles 24 and 25 of the Rules of Procedure of the [OSCURATO:PERSONA] in force at the time and [OSCURATO:PERSONA] 4 of the decision of the [OSCURATO:PERSONA] of 29 March 2004. 33 The first part of the first plea in law must therefore be rejected. 34 By the second part of the first plea in law, the applicant alleges infringement of the rights of the defence. First, the [OSCURATO:PERSONA] granted it an excessively short period, namely, four working days, to respond to the allegations set out in paragraph 9 above. Second, in spite of its request to that effect, the applicant was not invited to be heard by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] during the meeting in which the contested decision was adopted. 35 [OSCURATO:PERSONA] disputes the applicant’s arguments. 36 It must be noted that, under [OSCURATO:PERSONA] 41(2)(a) of the Charter of [OSCURATO:PERSONA], the right to good administration includes, inter alia, the right of every person to be heard, before any individual measure which would affect him or her adversely is taken. 37 Furthermore, observance of the rights of the defence is a general principle of EU law which applies when the authorities are minded to adopt in respect of a person a measure which will adversely affect him. In accordance with that principle, the addressees of decisions that significantly affect their interests must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision. They must be given a sufficient period of time to do so (judgment of 18 December 2008, Sopropé , C‑349/07, EU:C:2008:746, paragraphs 36 and 37). 38 In the present case, it must be noted that, as follows from paragraph 9 above, on 2 December 2016, the [OSCURATO:PERSONA] invited the applicant to submit its observations on or before 8 December 2016, which is a period of six days. Although the period was indeed short, it nevertheless does not mean that the [OSCURATO:PERSONA] infringed the applicant’s rights of the defence in the present case. 39 It must be found that the period that the [OSCURATO:PERSONA] must grant a political foundation at [OSCURATO:PERSONA] level in order for it to provide its observations in response to a letter, such as the one in the present case, must take into account the complexity and the volume of the allegations and factual elements raised. 40 In the present case, the [OSCURATO:PERSONA] informed the applicant of the allegations relating, in essence, to the establishment of a system whereby donations were received in exchange for the award of contracts and mentioned eight specific cases in support of its accusation. Thus, despite the serious nature of the accusation, it must be held that the [OSCURATO:PERSONA]’s letter did not raise particularly complex or numerous allegations or factual elements. 41 Moreover, as follows from paragraph 8 above, the [OSCURATO:PERSONA] had already informed the applicant of the allegations at issue in its letter of 30 November 2016, to which it makes reference in its subsequent letter, which gave the applicant two additional days to prepare its observations. 42 In addition, even if such a finding cannot in itself justify an infringement of the rights of the defence, it must be held that, according to the first paragraph of [OSCURATO:PERSONA] 4(2) of the decision of the [OSCURATO:PERSONA] of 29 March 2004, in principle the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] had to take its decision concerning the list of beneficiaries and the amounts of the grants awarded before 1 January 2017. As the last meeting of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] for the year 2016 was scheduled for 12 December 2016, that fact explains the context in which the applicant was given a short period in which to deliver its observations. 43 Finally, it must be noted that the [OSCURATO:PERSONA] acted diligently by sending its letters to the applicant on 30 November and 2 December 2016, that is to say, only a few days after the publication by the press of the first pieces of information relating to the allegations at issue on 24 November 2016, after having internally re-examined the applicant’s accounts for the financial year 2015. 44 Taking into account all of those considerations, the plea alleging an excessively short period to answer the allegations against the applicant must be rejected. 45 As regards the refusal of the applicant’s request to be heard, specifically in the context of a hearing at the meeting of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] that led to the adoption of the contested decision, it is sufficient to state that neither the specific legislation in question nor the general principle of observance of the rights of the defence gives the applicant the right to a formal hearing, the opportunity to submit its observations in writing being sufficient to ensure observance of the right to be heard (see, by analogy, judgments of 27 September 2005, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑134/03 and T‑135/03, EU:T:2005:339, paragraph 108, and of 6 September 2013, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑35/10 and T‑7/11, EU:T:2013:397, paragraph 105). 46 In view of the foregoing, the second part of the first plea in law must be rejected. Accordingly, the first plea in law must be rejected as unfounded. Infringement of the financial regulation, the rules of application of the financial regulation, the decision of the [OSCURATO:PERSONA] of 29 March 2004 and the provisions of the contested decision 47 By its second plea in law, the applicant submits that the [OSCURATO:PERSONA] infringed [OSCURATO:PERSONA] 135 of the financial regulation, [OSCURATO:PERSONA] 208(1) of the rules of application of the financial regulation, the first paragraph of [OSCURATO:PERSONA] 8, sub-paragraph (a), of the decision of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 29 March 2004 and [OSCURATO:PERSONA] II.13.2 of the contested decision, since none of those provisions allows the grant for the financial year 2017 to be suspended because of irregularities allegedly committed in the financial year 2015. 48 [OSCURATO:PERSONA] disputes the applicant’s arguments. 49 First, it is appropriate to examine the applicant’s plea in law according to which [OSCURATO:PERSONA] 135 of the financial regulation and [OSCURATO:PERSONA] 208(1) of the rules of application of the financial regulation do not allow the grant for the financial year 2017 to be suspended because of irregularities allegedly committed in the financial year 2015. 50 According to [OSCURATO:PERSONA] 135(2) of the financial regulation, where the award procedure proves to have been subject to substantial errors, irregularities or fraud, the authorising officer responsible is to suspend the procedure and may take whatever measures that are necessary, including cancelling of the procedure. The authorising officer responsible is to inform OLAF immediately of suspected cases of fraud. 51 [OSCURATO:PERSONA] 208(1) of the rules of application of the financial regulation, the implementation of the grant agreement or decision, the participation of a beneficiary in its implementation or payments may be suspended in order to verify whether presumed substantial errors or irregularities or fraud or breach of obligations have occurred. If they are not confirmed, implementation is to resume as soon as possible. 52 Contrary to what the applicant maintains, the wording of those provisions does not prevent the institutions of the [OSCURATO:PERSONA] from suspending the implementation of a grant for a given financial year because of suspected irregularities concerning another financial year. 53 Furthermore, it must be noted that, under [OSCURATO:PERSONA] 135(5) of the financial regulation, where controls or audits demonstrate systemic or recurrent errors, irregularities, fraud or breach of obligations attributable to the beneficiary and having a material impact on a number of grants awarded to that beneficiary under similar conditions, the authorising officer responsible may suspend implementation of all the grants concerned or, where appropriate, terminate the concerned grant agreements or decisions with that beneficiary, in proportion to the seriousness of the errors, irregularities, fraud or breach of obligations, provided that the beneficiary has been given the opportunity to make observations. 54 It follows from the provision above that systematic or recurrent irregularities that have an impact on several grants that have been awarded in similar conditions may be taken into account in order to suspend or even terminate all relevant grants. 55 In the present case, the alleged irregularities that led to the decision to suspend and to the [OSCURATO:PERSONA] referring the matter to OLAF were both serious and systematic, since they involved the establishment of a mechanism whereby donations were received in exchange for the award of contracts. Therefore, it would be illogical, and even contrary to the requirement of protection of the financial interests of the [OSCURATO:PERSONA], that the institutions should be obliged to continue to pay funds during an appropriate ongoing investigation into beneficiaries suspected of having committed serious irregularities, even if those irregularities relate to an earlier financial year, and particularly if those irregularities, were they to be established, would be liable to lead to subsequent grants being terminated. The applicant’s first head of claim must therefore be rejected. 56 Second, the applicant alleges infringement of the first paragraph of [OSCURATO:PERSONA] 8, sub-paragraph (a), of the decision of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 29 March 2004, which, according to the applicant, allows suspension only in the event that the grant has been confirmed as having been used for unauthorised expenditure. In the present case, the irregularities invoked have allegedly not been confirmed. 57 [OSCURATO:PERSONA] the first paragraph of [OSCURATO:PERSONA] 8, sub-paragraph (a), of the decision of the [OSCURATO:PERSONA] of 29 March 2004, on a proposal from the Secretary-[OSCURATO:PERSONA], the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] is to suspend payments and reduce the grant, and, if appropriate, is to revoke the grant award decision, and may request appropriate repayment in the event of the grant being used to cover expenditure not authorised by [OSCURATO:PERSONA] 2004/2003. 58 It must be found that the wording of that provision does not support the applicant’s interpretation. That provision does no more than to state that improper use of the grant for unauthorised expenses may justify the suspension, reduction and even revocation of that grant. It is logical that the reduction and revocation of the grant must therefore be justified by established circumstances. Moreover, that provision in no way excludes the possibility of suspending the grant during an appropriate ongoing investigation in order to establish whether funds have been used for unauthorised expenses. Accordingly, the applicant’s second argument must be rejected. 59 Third, the applicant alleges infringement of [OSCURATO:PERSONA] II.13.2 of the contested decision, inasmuch as that provision allows the grant to be suspended only when there are suspicions of unauthorised spending and additional checks are being carried out. It is the applicant’s submission that its accounts for the financial year 2015 have already been checked by an external auditor and by the [OSCURATO:PERSONA]’s services without the suspected irregularities having been confirmed. 60 That argument cannot be accepted. Even if it is true that the applicant’s accounts were checked by an external auditor at the time, information relating to serious irregularities that had been committed was published in the press on 24 November 2016. Following re-examination of the applicant’s accounts by the [OSCURATO:PERSONA]’s services for the financial year 2015, the [OSCURATO:PERSONA] found that there were sufficient indications for the allegations at issue to be established and decided to refer the matter to OLAF. Accordingly, the third plea in law must be rejected. 61 Finally, regarding the applicant’s argument that it has not committed the alleged irregularities, it suffices to note that the contested decision does not conclude that those irregularities exist, but does no more than to suspend the grant until OLAF’s investigation is concluded, as is stated in the letter of 2 December 2016. 62 In the light of the foregoing, the second plea in law must be rejected as unfounded. Breach of the principle of proportionality 63 By its third plea in law, the applicant alleges infringement of the principle of proportionality. According to the applicant, suspending the payment of the grant for the financial year 2017 is disproportionate, as in the present case there are merely suspicions of irregularities committed three years earlier with regard to a different grant decision that relates to an amount of only about EUR 68 000. 64 [OSCURATO:PERSONA] contests the appellant’s arguments. 65 As a preliminary point, it should be recalled that the principle of proportionality, which is one of the general principles of EU law, requires acts adopted by EU institutions not to exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous (judgment of 11 June 2009, [OSCURATO:PERSONA] , C‑33/08, EU:C:2009:367, paragraph 31). 66 As has been stated in paragraph 51 above, it follows from [OSCURATO:PERSONA] 208(1) of the rules of application of the financial regulation that the payment of a grant may be suspended in order to verify whether presumed substantial errors or irregularities or fraud have been committed. 67 It is clear therefrom that the [OSCURATO:PERSONA] has discretion to establish whether, taking into account the seriousness of the allegations, there are ‘presumed substantial errors or irregularities or fraud’. It also has discretion as to the consequences to be drawn from such a situation, as it ‘may’ suspend the payment of the grant, without being obliged to do so. 68 With regard to the present case, it must be held that the allegations in question relate to serious irregularities, which led the [OSCURATO:PERSONA] to refer the matter to OLAF. 69 Furthermore, suspending the grant appears to be an appropriate and necessary measure for achieving the legitimate goal pursued, namely, the protection of the [OSCURATO:PERSONA]’s financial interests, taking into account the risk of its being impossible subsequently to recuperate the funds if the irregularities are confirmed. 70 In addition, even though the applicant refers to the relatively modest amount of the contested sums for the financial year 2015 when compared with the amount of the suspended grant for the financial year 2017, it follows from the letter of 30 November 2016 that there was a risk that the applicant would not reach the minimum threshold of 15% of own resources that was necessary in order to receive the grant from the [OSCURATO:PERSONA]. 71 Finally, it must be noted that the applicant proposes no alternative measure less restrictive for it that would ensure the protection of the financial interests of the [OSCURATO:PERSONA] in the same way. 72 The third plea must therefore be rejected as unfounded. Decision to limit pre-financing to 33% of the maximum grant amount subject to a bank guarantee being provided 73 In support of its application for the annulment of the contested decision, in that it limits the pre-financing to 33% of the maximum grant amount subject to a bank guarantee being provided, the applicant submits three pleas in law, alleging, first, breach of the principle of good administration and the rights of the defence, second, infringement of the obligation to provide a statement of reasons, of [OSCURATO:PERSONA] 134 of the financial regulation and of [OSCURATO:PERSONA] 206 of the rules of application of the financial regulation and, third, breach of the principles of equal treatment and of proportionality. 74 Without formally raising a plea of inadmissibility under [OSCURATO:PERSONA] 130 of the Rules of Procedure, the [OSCURATO:PERSONA] takes the view that that part of the action is inadmissible for lack of a challengeable act. 75 In order to issue a judgment on the merits of the arguments relating to the partial inadmissibility of the action, it is necessary to examine the substance of the contested act rather than the form it takes. According to case-law, measures which produce binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position may be the subject of an action for annulment under [OSCURATO:PERSONA] 263 TFEU (see, to that effect, judgment of 11 November 1981, IBM v [OSCURATO:PERSONA] , 60/81, EU:C:1981:264, paragraph 9). 76 Acts that do no more than to show the intention of an institution or of its services of pursuing a certain course of action in the future are not capable of having legal effect and are therefore not challengeable acts (see, to that effect, judgment of 27 September 1988, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , 114/86, EU:C:1988:449, paragraph 13, and order of 8 March 1991, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑66/91 and C‑66/91 R, EU:C:1991:110, paragraph 28). 77 In the present case, the contested decision states as follows: ‘A pre-financing payment of EUR [221 316.07], representing 33% of the maximum amount established in [OSCURATO:PERSONA] I.3.2, shall be accorded to the Beneficiary, if the presumed irregularities are not confirmed on the basis of a new decision of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. Following such [OSCURATO:PERSONA] [of the [OSCURATO:PERSONA]] Decision, the beneficiary shall seek a mandatory pre-financing first demand guarantee (template in Annex III) for the pre-financing amount.’ 78 It follows from the wording of the contested decision that it does not produce the legal effects pleaded by the applicant, namely, limiting the pre-financing amount to 33% and requiring a bank guarantee. Those effects are conditional on the adoption of a new decision by the [OSCURATO:PERSONA], as the contested decision expressly states. Therefore, it is only if, in a future decision, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] should find that the irregularities have not been confirmed that that same decision would lift the suspension and could possibly make the payment of the pre-financing subject to the provision of a first demand bank guarantee and limit that pre-financing to 33%. However, at this stage, those passages of the contested decision can only be considered to be the expression of the future intention of the [OSCURATO:PERSONA]. 79 It is against that future decision that the applicant could, if appropriate, bring an action for annulment against any limitation of the pre-financing and the obligation to provide a bank guarantee. 80 In the light of the above, the application for annulment of the contested decision in that it limits the pre-financing to 33% of the maximum grant amount subject to a bank guarantee being provided is rejected as inadmissible. 81 The action must therefore be dismissed in its entirety. Costs 82 [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. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those of the [OSCURATO:PERSONA], including those relating to the application for interim measures, in accordance with the form of order sought by the [OSCURATO:PERSONA]. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the action; 2. Orders the Institute for [OSCURATO:PERSONA] in Europe ASBL (IDDE) to bear its own costs and to pay those incurred by the [OSCURATO:PERSONA], including those relating to the application for interim measures. [OSCURATO:PERSONA] in open court in Luxembourg on 8 February 2018. E. Coulon A. M. [OSCURATO:PERSONA] * Language of the case: English.