Corte di giustizia UE/2016

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 21 April 2016 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] — Intra-ACP programme (African, Caribbean and [OSCURATO:PERSONA]) of the [OSCURATO:PERSONA] (GCCA) — [OSCURATO:PERSONA] request to terminate the mission of an expert chosen by the other contracting party — Action for annulment — Right to an effective judicial remedy) [OSCURATO:PERSONA] C‑279/15 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 8 June 2015, [OSCURATO:PERSONA], residing in Paris (France), [OSCURATO:SOCIETA], established in Paris, represented by A. Herzberg, Rechtsanwalt, appellants, the other party to the proceedings being: [OSCURATO:PERSONA], represented by S. Bartelt and F. Moro, acting as Agents, with an address for service in Luxembourg, defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of C. Toader (Rapporteur), President of the [OSCURATO:PERSONA], and A. Rosas and E. Jarašiūnas, [OSCURATO:PERSONA], [OSCURATO:PERSONA]: J. Kokott, Registrar: A. [OSCURATO:PERSONA], having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order, in accordance with [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA], makes the following [OSCURATO:PERSONA] 1 By their appeal, [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] seek to have set aside the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 25 March 2015 in [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] v [OSCURATO:PERSONA] (T‑314/14, unpublished, EU:T:2015:197) (‘the order under appeal’) in which the [OSCURATO:PERSONA] dismissed their action for annulment of the [OSCURATO:PERSONA] requests of 19 and 20 February 2014 to terminate [OSCURATO:PERSONA] assignment as an expert involved in the performance of framework contract EuropeAid/127054/C/SER/Multi (‘the framework contract’), concerning a mission for the evaluation of the Intra-ACP programme of the GCCA (‘the requests at issue’). Background to the dispute 2 The relevant background to the dispute, as set out in the order under appeal, may be summarised as follows. 3 On 8 October 2009, the [OSCURATO:PERSONA] concluded a framework contract, in the context of its EuropeAid programme and of its multiple framework contract entitled ‘Beneficiaries 2009’, with a consortium led by [OSCURATO:PERSONA] EEIG (‘the other contracting party’), whose members include [OSCURATO:PERSONA] (‘NCG’). The subject-matter of the framework contract was the short-term recruitment of experts in the environment sector for projects in the field of external aid in the exclusive interest of third countries benefiting from that aid. 4 The framework contract first of all comprises special conditions and a set of annexes, which include Annex I, containing the general conditions governing the contract, and Annex II, containing the global terms of reference. [OSCURATO:PERSONA] 11 of the special conditions confers exclusive jurisdiction on the courts of Brussels (Belgium) for settling disputes arising out of or relating to the framework contract or a specific contract concluded by the [OSCURATO:PERSONA] in the context of the framework contract. 5 Secondly, the general conditions of the framework contract, in [OSCURATO:PERSONA] 17.2 thereof, provide that ‘in the course of performance, and on the basis of a written and justified request, to which the [other contracting party] shall provide [its] own and the staff member’s observations, the [OSCURATO:PERSONA] can ask for a replacement if it considers that a member of staff is inefficient or does not perform [his] duties under the contract.’ 6 Lastly, point 3.2 of the global terms of reference provides that the other contracting party is responsible for all administrative aspects of the assignment entrusted to it by a specific contract, such as, in particular, establishing a contract with the experts. 7 Pursuant to the framework contract, on 20 and 27 December 2013 the [OSCURATO:PERSONA] concluded two specific contracts with the other contracting party, bearing reference 2013/336038 and 2013/331334, respectively. The terms of those contracts foresaw the use of two experts for evaluation assignments in respect of two [OSCURATO:PERSONA] programmes: the final evaluation of the GCCA programme and the mid-term evaluation of the GCCA programme in the context of the intra-ACP programme under the 10th [OSCURATO:PERSONA]. 8 Following the conclusion of the specific contracts between the [OSCURATO:PERSONA] and the other contracting party, NCG concluded four agreements with [OSCURATO:PERSONA] covering his services as an expert with regard to the evaluation of the GCCA programme. 9 Each of those four expert service agreements stipulate in their clause 15.3 that any disagreement between [OSCURATO:PERSONA] and NCG in consequence of or connected to the agreement, and which cannot be settled amicably, is to be settled by arbitration under Belgian law. 10 [OSCURATO:PERSONA] assignment as expert for the evaluation of the GCCA programme started on 30 December 2013 and was to end within a period of 25 weeks with the submission of the final report. In the context of the evaluation of the GCCA programme, it was envisaged that his first mission would be in Fiji. That mission took place from 17 to 21 February 2014. 11 On the basis of feedback received from the EU [OSCURATO:PERSONA], [OSCURATO:PERSONA] staff expressed their concerns to NCG about [OSCURATO:PERSONA] lack of professionalism — which, in their view, risked jeopardising the success of the whole evaluation — in two e-mails sent on 19 and 20 February 2014, and asked for him to be replaced. 12 NCG replied that it shared those concerns and proposed that [OSCURATO:PERSONA] complete his work with respect to the mission in Fiji, but that a replacement would be sought for the subsequent missions. 13 By the requests at issue, the [OSCURATO:PERSONA] expressed doubts to NCG as regards [OSCURATO:PERSONA] ability to achieve the objectives he had been set and, in order to avoid the risk of the quality of the evaluation being jeopardised, proposed that the expert’s mission be terminated and the search for a replacement initiated. NCG immediately contacted [OSCURATO:PERSONA] in order to inform him of the [OSCURATO:PERSONA] request. 14 On 26 February 2014, NCG e-mailed the [OSCURATO:PERSONA] remarks concerning his mission in Fiji, in which he disputed the facts which had led the [OSCURATO:PERSONA] to request the termination of his mission. 15 On 27 February 2014, that institution acknowledged receipt of [OSCURATO:PERSONA] remarks by e-mail addressed to NCG. It also noted that, since he was unsuitable for carrying out the mission entrusted to him, it had requested that he be replaced under the provisions of the framework contract. 16 Subsequently, on a proposal by the other contracting party dated 2 March 2014, the [OSCURATO:PERSONA] accepted a new junior expert without it being necessary to modify the specific contracts with the other contracting party under the terms of [OSCURATO:PERSONA] 20.1 of the general conditions of the framework contract. In line with point 5.4.3 of the guidelines of that contract, it was sufficient to introduce into the [OSCURATO:PERSONA] internal system a rider to the specific contracts concerning the replacement of [OSCURATO:PERSONA] by another junior expert, which was done on 21 March 2014 and subsequently notified to the other contracting party. The proceedings before the [OSCURATO:PERSONA] and the order under appeal 17 By application lodged at the Registry of the [OSCURATO:PERSONA] on 29 April 2014, [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] brought an action for annulment of the requests at issue. 18 By separate document lodged at the Registry of the [OSCURATO:PERSONA] on 27 August 2014, the [OSCURATO:PERSONA] raised a plea of inadmissibility, pursuant to [OSCURATO:PERSONA] 114(1) of the Rules of Procedure of the [OSCURATO:PERSONA]. 19 On 14 October 2014, [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] lodged their observations concerning that plea and requested that the [OSCURATO:PERSONA] reject it. 20 By the order under appeal, adopted pursuant to [OSCURATO:PERSONA] 114 of those Rules, the [OSCURATO:PERSONA], without opening the oral procedure, upheld the plea of inadmissibility and dismissed the action. Forms of order sought 21 In their appeal, [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] claim that the [OSCURATO:PERSONA] should: –        set aside the order under appeal; –        declare the action admissible; –        primarily, give final judgment on the substance of the action and annul the requests at issue or, in the alternative, refer the case back to the [OSCURATO:PERSONA] for that court to rule on the substance or, in the further alternative, refer the case back to the [OSCURATO:PERSONA] for that court to examine the admissibility and merits of the action together, and –        order the [OSCURATO:PERSONA] to pay the costs. 22 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        dismiss the action as in part inadmissible and in part unfounded and –        order [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] to pay the costs. The appeal 23 [OSCURATO:PERSONA] 181 of its Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss that appeal in whole or in part. 24 It is appropriate to apply that provision to the present case. 25 In support of their appeal, [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] put forward six grounds of appeal. The first of those grounds alleges that the [OSCURATO:PERSONA] distorted the clear sense of the evidence. By their second to fifth grounds, [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] claim that the [OSCURATO:PERSONA] erred in law in the application of the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU. Thus, by their second ground, they argue that the [OSCURATO:PERSONA] incorrectly held that challengeable acts were restricted to acts defined under [OSCURATO:PERSONA] 288 TFEU. The third ground alleges that the [OSCURATO:PERSONA] erred and should have found that the requests at issue constituted a decision within the meaning of [OSCURATO:PERSONA] 288 TFEU. By their fourth ground, [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] claim that the [OSCURATO:PERSONA] incorrectly held to be decisive the fact that those requests are inseparable from the contractual framework. The fifth ground concerns the application, with regard to a triangular relationship, of criteria developed in the [OSCURATO:PERSONA] case-law concerning bilateral relationships. By their sixth and final ground, [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] submit that the [OSCURATO:PERSONA] infringed their right to an effective judicial remedy. The first ground of appeal –       Arguments of the parties 26 By their first ground, [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] claim that the [OSCURATO:PERSONA] statement of the facts is ‘inaccurate and distorted ..., disregarding the appellants’ right to be heard’. 27 [OSCURATO:PERSONA] contends that the first ground is, primarily, inadmissible and, on a subsidiary basis, ineffective. –       Findings of the [OSCURATO:PERSONA] 28 Pursuant to consistent case-law of the [OSCURATO:PERSONA] of Justice, it is apparent from Articles 256(1) TFEU and the first paragraph of [OSCURATO:PERSONA] 58 of the Statute of the [OSCURATO:PERSONA] of Justice that an appeal lies on points of law only and thus that the [OSCURATO:PERSONA] has exclusive jurisdiction to establish and assess the relevant facts and evidence. The establishment of those facts and the assessment of that evidence thus do not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject as such to review by the [OSCURATO:PERSONA] of Justice on appeal (see order of 10 July 2012 in [OSCURATO:PERSONA] v OHIM , C‑582/11 P, unpublished, EU:C:2012:434, paragraph 46 and the case-law cited therein). 29 Where an appellant alleges distortion of the evidence by the [OSCURATO:PERSONA], he must, pursuant to [OSCURATO:PERSONA] 256 EC, the first paragraph of [OSCURATO:PERSONA] 58 of the Statute of the [OSCURATO:PERSONA] of Justice and [OSCURATO:PERSONA] 168(1)(d) of its Rules of Procedure, indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which, in his view, led to such distortion. Moreover, it is the [OSCURATO:PERSONA] settled case-law that distortion must be obvious from the documents in the [OSCURATO:PERSONA] file, without any need to carry out a new assessment of the facts and the evidence (judgments of 17 June 2010 in in Lafarge v [OSCURATO:PERSONA] , C‑413/08 P, EU:C:2010:346, paragraph 16 and the case-law cited therein, and 27 October 2011 in Austria v Scheucher — Fleisch and Others , C‑47/10 P, EU:C:2011:698, paragraph 59 and the case-law cited therein). 30 In the present case, the [OSCURATO:PERSONA] found, in paragraphs 4 and 5 of the order under appeal, that [OSCURATO:PERSONA] 17.2 of the general conditions of the framework contract allowed the [OSCURATO:PERSONA], in the course of performance of the contract, to ask for a replacement of a person if it considered that he was inefficient or did not perform his duties under the contract. The contractual provisions also provided that the other contracting party was to be responsible for all administrative aspects of the assignment entrusted to it. 31 In paragraph 31 of the order under appeal, the [OSCURATO:PERSONA] inferred from those facts that the requests at issue fell within the context of the framework contract between the [OSCURATO:PERSONA] and the other contracting party, in that they concerned the replacement of an expert, that replacement having its basis in the provisions of that contract. 32 It must be stated that [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] have not proven that the [OSCURATO:PERSONA] findings are based on a clear distortion of the evidence submitted before it and which is obvious from the documents in the file before the [OSCURATO:PERSONA] of Justice. 33 It follows that the first ground of appeal must be rejected as manifestly unfounded. The fourth and fifth grounds of appeal –       Arguments of the parties 34 By their fourth and fifth grounds, which should be examined together and second, the appellants claim that the [OSCURATO:PERSONA] erred in law in so far as it held to be decisive the fact that the requests at issue were inseparable from the contractual framework and also in so far as it applied, with regard to a triangular relationship, criteria developed concerning bilateral relationships. 35 [OSCURATO:PERSONA] contends that those grounds of appeal are unfounded. –       Findings of the [OSCURATO:PERSONA] 36 By those two grounds, the appellants are essentially seeking to show that the [OSCURATO:PERSONA] erred in law in finding that the requests at issue did not have, in relation to the appellants, the characteristics of a challengeable act for the purposes of [OSCURATO:PERSONA] 263 TFEU. 37 It is the [OSCURATO:PERSONA] settled case-law that only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in its legal position are acts or decisions which may be the subject of an action for annulment (see, inter alia, order of 14 May 2012 in [OSCURATO:PERSONA] (Ireland) v [OSCURATO:PERSONA] , C‑477/11 P, unpublished, EU:C:2012:292, paragraph 51 and the case-law cited therein). 38 Thus, an action for annulment is available against all acts adopted by the institutions, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position (see, inter alia, order of 31 March 2011 in Mauerhofer v [OSCURATO:PERSONA] , C‑433/10 P, unpublished, EU:C:2011:204, paragraph 57 and the case-law cited therein). 39 However, the interpretation and application of the FEU Treaty in compliance with the law, which may be ensured in practice by means of actions for annulment, does not apply where the applicant’s legal position falls within the contractual relationships whose legal status is governed by the national law agreed to by the contracting parties. Were the EU judicature to hold that it had jurisdiction to adjudicate on the annulment of acts falling within purely contractual relationships, not only would it risk rendering [OSCURATO:PERSONA] 272 TFEU — which grants the Courts of the [OSCURATO:PERSONA] jurisdiction pursuant to an arbitration clause — meaningless, but would also risk, where the contract does not contain such a clause, extending its jurisdiction beyond the limits laid down by [OSCURATO:PERSONA] 274 TFEU, which specifically gives national courts or tribunals ordinary jurisdiction over disputes to which the [OSCURATO:PERSONA] is a party (see, to that effect, judgment of 9 September 2015 in [OSCURATO:PERSONA] kai [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑506/13 P, EU:C:2015:562, paragraphs 18 and 19 and the case-law cited therein). 40 [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] have not demonstrated how the [OSCURATO:PERSONA] failed to apply correctly the principles developed in the case-law cited in paragraphs 37 to 39 above. 41 [OSCURATO:PERSONA] observed in paragraph 26 of the order under appeal that, having regard to the absence of any contractual link between [OSCURATO:PERSONA] and [OSCURATO:SOCIETA], on the one hand, and the [OSCURATO:PERSONA], on the other, it was open to the former parties to bring an action for annulment against the requests at issue provided those measures constituted challengeable acts with respect to them. 42 In paragraphs 31 to 33 of the order under appeal, the [OSCURATO:PERSONA] examined the requests at issue in this connection. From that examination, it concluded that all of the effects of the requests were produced and exhausted within the framework of the contractual relationship between the [OSCURATO:PERSONA] and the other contracting party, in relation to which [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] were third parties. 43 In the light of all those factors, it must be held that the [OSCURATO:PERSONA] was fully entitled to hold, in paragraph 35 of the order under appeal, that the requests at issue could not be the subject of an action for annulment under [OSCURATO:PERSONA] 263 TFEU (see, by analogy, order of 31 March 2011 in Mauerhofer v [OSCURATO:PERSONA] , C‑433/10 P, unpublished, EU:C:2011:204, paragraph 63). 44 It is also necessary to reject the argument submitted by [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] in support of their fifth ground of appeal, according to which the [OSCURATO:PERSONA] incorrectly applied, with regard to a triangular relationship, criteria developed in the [OSCURATO:PERSONA] of Justice’s case-law concerning bilateral relationships. 45 The factual circumstances which gave rise to the order of 31 March 2011 in Mauerhofer v [OSCURATO:PERSONA] (C‑433/10 P, unpublished, EU:C:2011:204) called into question contracts concluded between the [OSCURATO:PERSONA] and a consortium, and between that consortium and experts. Therefore, the inferences drawn from that order are also applicable in respect of multilateral relationships. 46 The fourth and fifth grounds must therefore be rejected as manifestly unfounded. The second and third grounds of appeal –        Arguments of the parties 47 By their second and third grounds, the appellants claim, first, that the [OSCURATO:PERSONA] incorrectly restricted challengeable acts to acts defined under [OSCURATO:PERSONA] 288 TFEU whereas it should have found that the requests at issue constituted acts for the purposes of that latter provision. 48 [OSCURATO:PERSONA] contends that those grounds are unfounded. –        Findings of the [OSCURATO:PERSONA] 49 The second and third grounds are based on the premise that the requests at issue constitute acts against which an action for annulment may be brought in accordance with [OSCURATO:PERSONA] 263 TFEU. 50 As is apparent from paragraph 43 of the present order, the Tribunal was fully entitled to hold that the requests at issue did not constitute such acts. Both those grounds are therefore ineffective. 51 Therefore, the grounds in question must be dismissed as manifestly unfounded. The sixth ground of appeal –       Arguments of the parties 52 By their sixth ground, the appellants submit that the [OSCURATO:PERSONA] infringed their right to an effective judicial remedy. 53 [OSCURATO:PERSONA] contends that that ground is unfounded. –       Findings of the [OSCURATO:PERSONA] 54 Although the conditions of admissibility laid down in the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, such an interpretation nevertheless cannot have the effect of setting aside those conditions (judgment of 21 January 2016 in SACBO v [OSCURATO:PERSONA] and INEA , C‑281/14 P, EU:C:2016:46, paragraph 46 and the case-law cited therein). 55 The appellants’ right to an effective judicial remedy in order to obtain compensation for the harm which they claim to have suffered is ensured by the possibility, first, of referring the matter to an arbitrator under Belgian law, in accordance with the provisions of the contract concluded between NCG and [OSCURATO:PERSONA], and, secondly, of bringing an action for damages as provided for under [OSCURATO:PERSONA] 268 TFEU, which is an autonomous form of action and whose exercise is subject to conditions imposed in view of its specific objective, which are therefore different to those for an action for annulment (see, to that effect, judgment of 21 January 2016 in SACBO v [OSCURATO:PERSONA] and INEA , C‑281/14 P, EU:C:2016:46, paragraph 47 and the case-law cited therein). 56 Consequently, the sixth ground must be rejected as manifestly unfounded. 57 Accordingly, the appeal in its entirety must be dismissed as manifestly unfounded. Costs 58 [OSCURATO:PERSONA] 184(2) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, where the appeal is unfounded, the [OSCURATO:PERSONA] is to make a decision as to costs. [OSCURATO:PERSONA] 138(1) of those rules, which apply to the procedure on appeal by virtue of [OSCURATO:PERSONA] 184(1) of those rules, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the [OSCURATO:PERSONA] has applied for costs against [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] and the latter have been unsuccessful in their grounds of appeal, they must be ordered, jointly and severally, to pay the costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] shall pay the costs jointly and severally. [Signatures] * Language of the case: English.