Spliethoff's Bevrachtingskantoor BV v European Commission (C-635/16 P)

Contents

Judgment of the Court (Tenth Chamber)28 June 2018^note(Appeal — Actions for annulment — Admissibility — Determination of the subject-matter of the proceedings — Financial assistance in the field of Connecting Europe Facility (CEF) — Transport sector for the period 2014-2020 — Call for proposals — Innovation and Networks Executive Agency (INEA) — Email informing the appellant of the rejection of its proposal — Subsequent decision of the European Commission establishing the list of selected proposals — Effective judicial protection)In Case C–635/16 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 8 December 2016,Spliethoff’s Bevrachtingskantoor BV, established in Amsterdam (Netherlands), represented by Y. de Vries, advocaat,the other party to the proceedings being:European Commission, represented by J. Samnadda and J. Hottiaux, acting as Agents,THE COURT (Tenth Chamber),composed of E. Levits, President of the Chamber, A. Borg Barthet and F. Biltgen (Rapporteur), Judges,Advocate General: Kokott,Registrar: A. Calot Escobar,having regard to the written procedure,after hearing the Opinion of the Advocate General at the sitting on 23 January 2018,gives the following

Judgment

1By its appeal, Spliethoff’s Bevrachtingskantoor BV (‘Spliethoff’) seeks to have set aside the order of the General Court of the European Union of 11 October 2016, Spliethoff’s Bevrachtingskantoor v Commission (T–564/15, not published, EU:T:2016:611) (‘the order under appeal’), by which it dismissed its appeal seeking the annulment of the decision allegedly contained in the email of the Innovation and Networks Executive Agency (INEA) of 17 July 2015.

Legal context

Regulation (EC) No 58/2003

2Council Regulation (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) provides the legal framework for the setting-up and mode of operation of executive agencies.

3Paragraph 1 of Article 3 of that Regulation, entitled ‘Setting-up and winding-up of executive agencies’, provides:‘The Commission may decide, after a prior cost-benefit analysis, to set up an executive agency with a view to entrusting it with certain tasks relating to the management of one or more Community programmes. It shall determine the lifetime of the executive agency.... ’

4Article 6 of that regulation, entitled ‘Tasks’, provides, in paragraphs 1 and 3:1. To attain the objective set out in Article 3(1), the Commission may entrust an executive agency with any tasks required to implement a Community programme, with the exception of tasks requiring discretionary powers in translating political choices into action....3. The terms, criteria, parameters and procedures with which an executive agency must comply when performing the tasks referred to in paragraph 2 and the details of the checks to be performed by the Commission departments responsible for Community programmes in the management of which an agency is involved shall be defined by the Commission in the instrument of delegation.’

Regulation (EU) No 1316/2013

5Regulation (EU) No 1316/2013 of the European Parliament and of the Council of 11 December 2013 establishing the Connecting Europe Facility, amending Regulation (EU) No 913/2010 and repealing Regulations (EC) No 680/2007 and (EC) No 67/2010 (OJ 2013 L 348, p. 129) establishes, according to Article 1 thereof, the Connecting Europe Facility (‘CEF’), which determines the conditions, methods and procedures for providing EU financial assistance to trans-European networks in order to support projects of common interest in the sectors of transport, telecommunications and energy infrastructures and to exploit potential synergies between those sectors. It also establishes the breakdown of the resources to be made available under the multiannual financial framework for the years 2014-2020.

6Article 18 of that regulation, entitled ‘Granting of Union financial assistance’, provides:1. Following every call for proposals ..., the Commission, acting in accordance with the examination procedure referred to in Article 25, shall decide on the amount of financial assistance to be granted to the projects selected or to parts thereof. The Commission shall specify the conditions and methods for their implementation.2. The beneficiaries and the Member States concerned shall be informed by the Commission of any financial assistance to be granted.’

7Article 25 of that regulation, entitled ‘Committee procedure’, provides:1. The Commission shall be assisted by the CEF Coordination Committee. That Committee shall be a committee within the meaning of [Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13)].2. Where reference is made to this paragraph, Article 5 of [Regulation No 182/2011] shall apply.3. The committee shall ensure a horizontal overview of the work programmes ... to ensure that they are consistent and that synergies are identified, exploited and assessed between the transport, telecommunications and energy sectors. It shall seek, in particular, to coordinate those work programmes with a view to allowing multi-sectoral calls for proposals.’

Implementing Decision 2013/801/EU

8On the basis of Regulation (EC) No 58/2003, INEA was set up by Commission Implementing Decision 2013/801/EU of 23 December 2013 (OJ 2013 L 352, p. 65).

9Article 3 of that decision, entitled ‘Objectives and tasks’, provides, inter alia:1.[INEA] is hereby entrusted with the implementation of parts of the following Union programmes:(a) [CEF];...3.[INEA] shall be responsible for the following tasks related to the implementation of the parts of the Union programmes referred to in paragraphs 1 and 2:(a) managing some stages of programme implementation and some phases in the lifetime of specific projects on the basis of the relevant work programmes adopted by the Commission, where the Commission has empowered the Agency to do so in the instrument of delegation;(b) adopting the instruments of budget execution for revenue and expenditure and carrying out all the operations necessary for the management of the programme, where the Commission has empowered it to do so in the instrument of delegation;(c) providing support in programme implementation where the Commission has empowered it to do so in the instrument of delegation.’

Decision C(2013) 9235 final

10Commission Decision C(2013) 9235 final of 23 December 2013 delegating powers to the Innovation and Networks Executive Agency with a view to the performance of tasks linked to the implementation of Union programmes in the field of transport, energy and telecommunications infrastructure and in the field of transport and energy research and innovation comprising, in particular, implementation of appropriations entered in the general budget of the Union defines INEA’s tasks in detail and lays down the framework for their implementation and for the relationship between the Commission and INEA.

11Article 2 of that decision, entitled ‘Parent Directorates-General’, provides:‘The following Directorates-General shall be the parent Directorates-General of [INEA]:– Directorate-General for Mobility and Transport;...In that capacity, they shall handle relations between the Commission and [INEA] and shall be responsible for monitoring and supervising [INEA] ... .’

12Paragraph 1 of Article 4 of the decision, entitled ‘Tasks delegated to [INEA]’, provides:(1) [INEA] is hereby entrusted with the implementation of the following parts of programmes and tasks:– For [CEF] — transport, energy and telecommunications, the parts and tasks set out in Annex I.... ’

13Article 5 of the same decision, entitled ‘Tasks reserved to the Commission’, provides:(1) [INEA] shall perform only the tasks attributed to it in accordance with Article 4.(2) [INEA] shall not perform any tasks involving a large measure of discretion implying political choices. In particular it shall not:...(e) adopt grant decisions under the [CEF] and any amendments to such decisions;... ’

14Annex I, part B, of Decision C(2013) 9235 final provides:‘On the basis of the powers delegated by the Commission and within the framework of the relevant annual work programme adopted by the Commission, [INEA] shall, in coordination and in agreement with the responsible parent Directorate-General, manage some or all of the phases of programme implementation and stages in the lifetime of projects under the parts of the CEF which are delegated to [INEA].In this connection, [INEA] shall be responsible for monitoring the projects of common interest benefiting from CEF funding, for making the necessary checks ... and for assisting the Commission in certain programme- and project-related tasks which are reserved for the Commission under this Decision, as appropriate, and in particular:(a) manage the operations and procedures leading to the adoption of Commission award decisions and Commission grant decisions and to the conclusion of grant agreements and manage the ensuing decisions and agreements:...– inform rejected and successful applicants of Commission award Decisions ...;...– perform routine ex post publicity and dissemination of results;... ’

The implementing decision of 31 July 2015

15Commission Implementing Decision C(2015) 5274 final of 31 July 2015 establishing the list of proposals selected for receiving EU financial assistance in the field of Connecting Europe Facility (CEF) — Transport sector following the calls for proposals launched on 11 September 2014 based on the multiannual work programme (‘the Implementing Decision of 31 July 2015’) was published on the website of the Commission Directorate General (DG) for Mobility and Transport and on INEA’s website on 12 and 14 October 2015 respectively.

16That decision stated, in recitals 4 and 6:(4) Following the calls for proposals based on the multiannual work programme 2014 and the evaluation and selection process, the Commission, acting in accordance with the procedure referred to in Article 25(2) of [Regulation No 1316/2013], should decide on the selected projects of common interest and on the amount of financial assistance to be granted to the projects or parts of projects selected....(6) The list of projects of common interest selected by this Decision is in accordance with the opinion of the Committee set up under Article 25(1) of [Regulation No 1316/2013].’

17The sole article of that decision provides:‘The list of projects of common interest in the field of [CEF] 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, as laid down in the Annex, are approved.’

Background to the dispute

18Spliethoff is a company established in Amsterdam (Netherlands), which manages a fleet of 50 multipurpose vessels.

19On 11 September 2014, INEA called for proposals in the context of the CEF under the framework of Commission Implementing Decision C(2014) 1921 final of 26 March 2014, establishing a multiannual work programme 2014 for financial assistance in the field of Connecting Europe Facility (CEF) — Transport sector for the period 2014-2020.

20Spliethoff responded to that call by submitting, on 25 February 2015, a proposal for financial support.

21On 17 July 2015, Spliethoff received an email, signed by the INEA team responsible for evaluation (‘the email of 17 July 2015’), the content of which, drafted in English, was as follows:‘Dear Sir/Madam,Following the calls for proposals published on 11 September 2014 under the Connecting Europe Facility (CEF) in the field of transport, the evaluation of the eligible proposals has taken place and the Commission has drawn up a list of proposals selected for receiving [European] Union financial assistance. On 10 July 2015, the CEF Coordination Committee of Member States’ representatives 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 European Commission of a decision on the selection and award of grants for actions contributing to projects of common interest under the [CEF] in the field of trans-European transport infrastructure is 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 and any reply from us, or from the Commission, 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 Commission’s decision notified by this message, which must be done within two months of notification of this message. The court responsible for hearing annulment procedures is the General Court of the European Union:...INEA Evaluation Team.’

22The Commission adopted the Implementing Decision of 31 July 2015 following the call for proposals to which Spliethoff had responded. Spliethoff’s project did not appear on that list.

The proceedings before the General Court and the order under appeal

23By application lodged with the Registry of the General Court on 25 September 2015, Spliethoff lodged an action against the Commission seeking the annulment of the decision allegedly contained in the email of 17 July 2015.

24By separate document lodged at the Registry of the General Court on 18 December 2015, the Commission raised an objection of inadmissibility under Article 130 of the Rules of Procedure of the General Court.

25In support of its objection of inadmissibility, the Commission put forward two absolute bars to proceedings alleging, first, that the email of 17 July 2015 was a preparatory act which was therefore not open to judicial challenge and, second, the action could not validly be directed against the Commission who was not the author of the email of 17 July 2015.

26In its observations on the plea of inadmissibility, Spliethoff submitted that even if the email of 17 July 2015 was sent by INEA its purpose was to notify it of the Commission’s decision rejecting its proposal and, at the very least, it could interpret it in that way since it was not aware of the existence of the Implementing Decision of 31 July 2015, and was therefore misled by the wording of the email of 17 July 2015. Spliethoff also requested that, in the event that the Implementing Decision of 31 July 2015 is held to be the Commission decision rejecting its proposal, the General Court decides that its action is directed against that decision.

27In paragraphs 17 to 25 of the order under appeal, the General Court examined, in the first place, the merits of the second plea of an absolute bar to proceeding based on the fact that the Commission was not the author of the email of 17 July 2015.

28In that regard, the General Court recalled, in paragraph 19 of the order under appeal, that while, in principle, actions must be directed against the author of the contested measure, in certain cases measures adopted pursuant to delegated powers were ascribable to the delegating institution, in particular where the author of the measure exercises a merely advisory competence or the measure annulment of which is sought was conditional upon the prior agreement of the delegating institution.

29After listing, in paragraphs 20 and 21 of the order under appeal, the powers delegated by the Commission to INEA pursuant to Regulation No 58/2003, the General Court held, in paragraph 22 of that order that INEA was the author of the measure contested before it, namely the email of 17 July 2015, which was adopted by virtue of the powers delegated by the Commission pursuant to Regulation No 58/2003, without it having been established that that institution was associated with the email.

30As to the Spliethoff’s argument that it interpreted the email of 17 July 2015 as being from INEA and notifying it of a grant decision of the Commission, the General Court held, in paragraph 23 of the order under appeal, that INEA is entrusted with notifying Commission decisions and does not itself have the power to adopt grant decisions under CEF. The General Court added that it was apparent from the examination of the first absolute bar to proceeding that, on the date of that email, the procedure for the Commission to adopt a decision on the selection and award of grants was already under way.

31The General Court concluded from that, in paragraph 24 of the order under appeal, that the action brought by Spliethoff had to be dismissed as inadmissible given that it was directed against the Commission who was not the author of the email of 17 July 2015.

32It is clear from paragraph 25 of the order under appeal that the General Court nevertheless considered it helpful also to rule of the first absolute bar to proceeding, alleging that the email of 17 July 2015 was a preparatory act and therefore not open to judicial challenge.

33In that regard, the General Court noted, in paragraph 32 of the order under appeal, that even if the wording of that email, which gives information on the possible recourses available to the Spliethoff and the applicable time frames, gives the impression that it is notifying a final decision of the Commission, that email makes several express references to a procedure pending before the Commission and informs Spliethoff that, at that stage of the ongoing procedure, its application had not been selected.

34After recalling, in paragraph 33 of the order under appeal, that the email of 17 July 2015 stated that the procedure for the adoption of the Commission decision on the selection of projects and the award of grants was under way and that it was possible — but highly unlikely — that the adoption of the decision would lead to changes concerning Spliethoff’s proposal, the General Court, in paragraphs 34 and 35 of the order under appeal, held that it was apparent from the email of 17 July 2015 that the Commission had not yet made a final assessment in that procedure and that its final position was only fixed by the adoption of the Commission’s decision of 31 July 2015.

35Consequently, the General Court, in paragraph 37 of the order under appeal, also upheld the first absolute bar to proceeding.

36As regards Spliethoff’s request that, in the event that the General Court held that the decision rejecting its proposal was the Implementing Decision of 31 July 2015, its application be regarded as directed against that decision, the General Court stated in paragraph 38 of the order under appeal, that its rules of Procedure and the case-law did not allow it to extend the subject matter of the proceedings to an application for the annulment of the Implementing Decision of 31 July 2015.

37In that regard, the General Court recalled, in paragraph 39 of the order under appeal, that Article 86(1) of the Rules of Procedure provides that where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may modify the application to take account of that new factor. However, the General Court specified that that provision did not cover a situation in which the subject matter of the proceedings is not a definitive act. The General Court also stated that, before Article 86 was introduced into its Rules of Procedure, the extension of the subject matter of the proceedings allowed by the case-law concerned cases of measures whose nature and essential subject matter were identical to those referred to in the application.

38In paragraph 40 of the order under appeal, the General Court held that the email of 17 July 2015 was merely provisional in nature and was not therefore a definitive act and, consequently, has not produced legal effects that were liable to be replaced or extended by a subsequent decision such as the Implementing Decision of 31 July 2015. The General Court also recalled that a subsequent act, adopted in the course of the procedure, could not be regarded as a new factor, in relation to which the applicant could amend its forms of order sought without thereby amending the very subject matter of the dispute.

39The General Court therefore rejected, in paragraph 41 of the order under appeal, Spliethoff’s request to amend its forms of order sought.

40Having regard to the foregoing, the General Court, in paragraph 42 of the order under appeal, declared the application lodged by Spliethoff inadmissible.

Forms of order sought by the parties before the Court of Justice

41Spliethoff asks the Court to:– set aside the order under appeal;– remit the case to the General Court; and– order the Commission to pay the costs of the proceedings, including the costs before the General Court.

42The Commission contends that the Court should:– declare the appeal, in its entirety or in part, to be inadmissible, or, in the alternative, dismiss it as unfounded; and– order Spliethoff to pay the costs.

The appeal

43In support of its appeal, Spliethoff relies on three grounds alleging errors of law committed by the General Court in declaring the application inadmissible, namely that the application was directed against the Commission, the email of 17 July 2015 was merely provisional and Spliethoff’s request that its application be regarded as being directed against the Implementing Decision of 31 July 2015 could not be allowed.

44Having regard to the connection between them, it is appropriate to examine the first and the third grounds together.

Arguments of the parties

45By its first ground of appeal, Spliethoff complains that the General Court committed an error of law in holding that INEA was the author of the email of 17 July 2015 and in declaring that its application was inadmissible because it was directed against the Commission.

46In that regard, Spliethoff submits that the act contested before the General Court is the decision of the Commission to reject its proposal. While INEA is the author of the email of 17 July 2015 which notifies that decision to Spliethoff, it is not the author of the decision itself. This is clearly apparent from the text of the email itself which refers to, ‘the Commission’s decision notified by this message’.

47Spliethoff concludes therefrom that this case differs from the cases that gave rise to the judgments cited in paragraphs 19 to 21 of the order under appeal because, in those cases, the agency concerned was in fact the author of the decision at issue and the Commission had not participated in the adoption of the decision. Consequently, the finding by the General Court in paragraph 22 of the order under appeal, that ‘INEA is the author of the contested act, being the email of 17 July 2015, which was adopted by virtue of the powers delegated by the Commission ....[and] it has not been established that the Commission was associated with the email’ is wrong.

48Spliethoff adds that the act challenged before the General Court cannot be attributed to INEA since only the Commission has the competence to adopt a refusal decision in the context of the procedure for selecting proposals eligible for a CEF grant.

49By its third ground of appeal, Spliethoff complains that the General Court, in paragraphs 39 to 41 of the order under appeal, committed an error of law in refusing to regard its application as being directed against the Implementing Decision of 31 July 2015.

50Spliethoff submits that it acted in good faith since it, in accordance with the indications set out in the email of 17 July 2015, lodged an application for annulment against that email before the General Court, within the prescribed time limit. It only became aware of the existence of the Implementing Decision of 31 July 2015 when it received the Commission’s observations regarding the plea of inadmissibility in which that institution alleged that Spliethoff should have challenged the latter decision.

51According to Spliethoff, the Commission decisively contributed to the confusion caused by the email of 17 July 2015 by failing to inform it of the existence and nature of the Implementing Decision of 31 July 2015. However, by contrast with the email of 17 July 2015, that decision did not indicate the means of recourse available, did not contain any reference to the subject of Spliethoff or the other unsuccessful candidates and referred only to the proposals selected by the Commission with the result that, even if Spliethoff had been aware of that decision in good time, it would not have been in a position to conclude that it was relevant in its own regard.

52Spliethoff submits that in such circumstances the General Court should, in order to protect its right to effective judicial protection, have held that there was an excusable error on its part and therefore upheld its request that its application be regarded as being directed against the Implementing Decision of 31 July 2015.

53The Commission submits that the arguments advanced by Spliethoff in its first ground of appeal are inadmissible in so far as they are identical to the pleas and arguments already submitted before the General Court and they seek to obtain a reexamination of a finding of fact and the legal classification of the email of 17 July 2015, which falls outside the Court’s jurisdiction on appeal. In any event, those arguments are based on a misreading of the order under appeal and the case-law referred to.

54As to the third ground of appeal, the Commission considers that the argument based on the idea of an excusable error is a new argument and is therefore inadmissible. In any event, the exceptional circumstances relied on by Spliethoff are not capable of calling into question the fact that Article 86(1) of the Rules of Procedure are not applicable in this case.

Findings of the Court

–Admissibility

55According to settled case-law, it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the decision of the General Court under appeal and the legal arguments specifically advanced in support of the appeal. An appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly rejected by the General Court, does not satisfy the requirement to state reasons under those provisions (judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 46 and the case-law cited).

56However, provided that the appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be argued again in the course of an appeal. If an appellant could not thus base his appeal on pleas in law and arguments already put forward before the General Court, the appeal would be deprived of part of its purpose. The appeal seeks precisely to challenge the General Court’s legal analysis of the arguments relied on at first instance (judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 47 and the case-law cited).

57In the present case, it must be held that, by its first ground of appeal, Spliethoff does not merely repeat the arguments already advanced at first instance but indicates clearly the parts of the order under appeal that it regards as vitiated by an error of law and the legal arguments relied on in support of its application to set aside the order under appeal.

58In addition, in the first ground of appeal Spliethoff criticises the General Court’s legal classification of the email of 17 July 2015.

59Consequently, the first ground of appeal must be regarded as admissible.

60As regards the third ground of appeal, it suffices to state that Spliethoff’s argument based on the theory of an excusable error was, as is clear from paragraph 28 of this judgment, already relied on before the General Court, in particular in Spliethoff’s observations on the plea of inadmissibility raised by the Commission. Therefore, it does not constitute a new argument.

61It follows that the third ground of appeal is admissible.

–Substance

62By its first and third grounds of appeal, Spliethoff complains, in essence, that the General Court upheld the plea of inadmissibility raised by the Commission and declared its action to be inadmissible by ruling, wrongly, that the act challenged was the email of 17 July 2015 and refusing to uphold its request that its application be regarded as directed against the Implementing Decision of 31 July 2015.

63As recalled in paragraph 26 of this judgment, the plea of inadmissibility raised by the Commission was based on two absolute bars to proceeding, alleging that, first, the email of 17 July 2015 was a preparatory act and was not therefore open to judicial challenge and, second, the action brought by Spliethoff could not be directed against the Commission who was not the author of that email.

64The argument submitted by Spliethoff in that regard consisted, as is clear from paragraphs 18 and 27 of the order under appeal, in submitting that the email of 17 July 2015 must be understood as the notification of the definitive decision by which the Commission rejected its proposal and its action was therefore directed against the Commission as the author of the refusal decision. According to Spliethoff, the subject matter of the proceedings was in fact the definitive decision by which the Commission rejected its proposal.

65The General Court rejected that argument by ruling, in paragraphs 23 and 36 of the order under appeal, that even if INEA was responsible for notifying the Commission’s decision and did not itself have the power to adopt grant decisions under the CEF, the procedure for the adoption, by the Commission, of a decision on the selection and award of grants was, at the date of the email of 17 July 2015 still under way, with the result that that email could not be interpreted as meaning that the Commission had already taken the decision to dismiss certain proposals, including Spliethoff’s proposal.

66It must be observed, in that regard, that it is clear from the terms of the email of 17 July 2015, as set out in paragraph 21 of this judgment, that INEA expressly informed Spliethoff of the fact that its ‘application [had] not been succesful’. It is true that INEA clarified that the procedure leading to the adoption of the Commission decision on the selection of projects and the award of grants was still under way. However, it added that ‘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’. Spliethoff did not subsequently receive any other email from INEA or the Commission in that regard.

67Furthermore, the General Court itself noted in paragraph 32 of the order under appeal that the wording of the email of 17 July 2015, which in particular set out information on the possible recourses available to the applicant and the applicable time frames, ‘[gives] the impression that it is notifying a final decision of the Commission’.

68It is also important to emphasise that it is not contested that on the date on which the action was lodged, 25 September 2015, Spliethoff was not aware of the existence of the Implementing Decision of 31 July 2015. It is common ground that that decision was only published on the website of the DG for Mobility and Transport and that of INEA on 12 and 14 October 2015 respectively and that, moreover and contrary to the requirements stemming from the principle of sound administration, that decision was not, at any time, the subject of a notification to Spliethoff.

69However, as the Commission acknowledged in its written observations and as the General Court itself found in paragraph 35 of the order under appeal, it was by the Implementing Decision of 31 July 2015 that the Commission rejected Spliethoff’s proposal.

70In the light of all those considerations, it must be held that, at the date on which its action was lodged, Spliethoff was not in a position to be able to identify, in its application, the Implementing Decision of 31 July 2015 as the decision by which the Commission rejected its proposal and could, contrary to the General Court’s finding in paragraphs 23 and 36 of the order under appeal, legitimately regard the email of 17 July 2015 as constituting the notification of the rejection of its proposal by the Commission.

71It follows that, as the Advocate General noted in points 65 and 67 of her opinion and as Spliethoff also had expressly requested, the General Court — having regard to the circumstances of the case and in order to guarantee for Spliethoff the right to effective judicial protection — should have recognised that the subject matter of the action was the annulment, not of the email of 17 July 2015, to which Spliefthoff erroneously referred in its application before the General Court, but the definitive decision by which the Commission rejected Spliethoff’s proposal, namely the Implementing Decision of 31 July 2015.

72That is all the more so given that, as the Advocate General observed in points 53, 54 and 66 of her opinion, the action lodged by Spliethoff was expressly directed against the Commission and the General Court itself recognised, in paragraphs 21 and 23 of the order under appeal, that only the Commission had the power to adopt a refusal decision in the context of the procedure for selecting eligible proposals for a grant under the CEF.

73Consequently, it must be held that the General Court erred in law in declaring the action lodged by Spliethoff to be inadmissible on the ground that the act challenged was the email of 17 July 2015 and in rejecting Spliethoff’s request that its action be regarded as being directed against the Implementing Decision of 31 July 2015.

74It is therefore necessary to uphold the first and third grounds of appeal and consequently, without it being necessary to examine the second ground of appeal, to set aside the order under appeal.

The action before the General Court

75According to the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the latter may, where the decision of the General Court has been annulled, either itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

76In the present case, the General Court having declared the action inadmissible without adjudicating on the substance of the case, the Court considers that the state of the present proceedings does not permit it to give final judgment. Accordingly, the case must be referred back to the General Court.

Costs

77Since the case has been referred back to the General Court, the costs relating to the present appeal proceedings must be reserved.

Operative part

On those grounds, the Court (Tenth Chamber) hereby:

1.Sets aside the order of the General Court of 11 October 2016, Spliethoff’s Bevrachtingskantoor v Commission (T‑564/15, not published, EU:T:2016:611);

2.Refers the case back to the General Court of the European Union;

3.Reserves the costs.

Delivered in open court in Luxembourg on 28 June 2018.