Judgment_paragraph 207 · ADR Center SpA v European Commission (T-644/14)

207In so far as the judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562) concerns the examination of a debit note and the question as to which remedy is available to challenge such a measure, and not the examination of an enforceable decision, as is the case in the present case with the contested decision, or the question as to the powers of the author of such a decision, it follows that that judgment is not relevant in the present case and therefore does not support the applicant’s proposition regarding the lack of competence on the part of the Commission to adopt the contested decision. Unlike the debit note, which, in a contractual relationship, constitutes a measure not open to an action for annulment, the contested decision indisputably constitutes such a measure in so far as it aims to produce binding legal effects falling outside of the contractual relationship between the parties and which involve the exercise of the prerogatives of a public authority conferred on the Commission acting in its capacity as an administrative authority (see, to that effect, judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 20, and order of 29 September 2016, Investigación y Desarrollo en Soluciones y Servicios IT v Commission, C‑102/14 P, not published, EU:C:2016:737, paragraphs 55 and 58). It should indeed be clarified that, notwithstanding the fact that the grant agreements make explicit reference, in Article II.19.5, to the possibility for the Commission to adopt an enforceable decision, as is the case in the present case with the contested decision, its legal nature is defined not by those agreements or the law applicable to them, but by Article 299 TFEU and Article 79(2) of the financial regulation (see, to that effect, judgments of 13 June 2012, Insula v Commission, T‑246/09, not published, EU:T:2012:287, paragraphs 94 to 96, and of 27 September 2012, Applied Microengineering v Commission, T‑387/09, EU:T:2012:501, paragraph 39).