Contents
Judgment of the General Court (Seventh Chamber)26 July 2023note(Arbitration clause — Horizon 2020 Framework Programme for Research and Innovation (2014-2020) — aDvanced sOcial enGineering And vulNerability Assessment Framework (Dogana) project — Grant agreement — Action for annulment — Final audit report — Debit note — Acts not open to challenge — Acts forming part of a purely contractual context from which they are not separable — Inadmissibility — Identification of the defendant — Lack of jurisdiction — Personnel costs — Bonuses calculated on the basis of commercial targets — Ineligibility — Legitimate expectations)In Case T‑222/22,Engineering – Ingegneria Informatica SpA, established in Rome (Italy), represented by S. Villata, L. Montevecchi and C. Oncia, lawyers,vEuropean Commission, represented by M. Ilkova and S. Romoli, acting as Agents,andEuropean Research Executive Agency (REA), represented by S. Payan-Lagrou and V. Canetti, acting as Agents, and by D. Gullo, lawyer,THE GENERAL COURT (Seventh Chamber),composed of K. Kowalik-Bańczyk (Rapporteur), President, E. Buttigieg and B. Ricziová, Judges,registrar: V. Di Bucci,having regard to the written part of the procedure, in particular:– the plea of inadmissibility raised under Article 130 of the Rules of Procedure of the General Court by the Commission, by separate document lodged at the General Court Registry on 6 July 2022,– the observations on that plea lodged by the applicant at the Court Registry on 22 August 2022,having regard to the fact that no request for a hearing was submitted by the applicant or by the REA within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure,gives the following
Judgment
1By its action based on Articles 263 and 272 TFEU, the applicant, Engineering – Ingegneria Informatica SpA, seeks, in essence, first, the annulment of a number of acts of the European Commission and of the European Research Executive Agency (REA) concerning the implementation of grant agreement 653618 (‘the grant agreement’), relating to the project entitled ‘aDvanced sOcial enGineering And vulNerability Assessment Framework (Dogana)’ (‘the project’) and, second, a declaration that certain costs are eligible for financing under that agreement and, accordingly, that the Commission and the REA are not entitled to seek reimbursement of the sums corresponding to those costs.
Background to the dispute
2The applicant is a company which carries out research and development activities in the technology sector.
3The REA is an executive agency established to manage EU action in the research field. Pursuant to Article 4(2) of Council 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), it has legal personality, enjoys in any Member State the most extensive legal capacity and may, in particular, be a party to legal proceedings.
Grant agreement
4In the context of the ‘Horizon 2020’ framework programme for research and innovation (2014-2020) (‘the Horizon 2020 framework programme’), Engineering International Belgium SA, acting in the capacity of coordinator, and other beneficiaries, on the one hand, and the REA, on the other hand, entered into the grant agreement on 28 April 2015. By virtue of two amendments signed in December 2017 and March 2018, the applicant became a beneficiary from 5 July 2017 and replaced Engineering International Belgium as coordinator from 15 December 2017.
5Article 2 of the grant agreement provides for a grant for the project (‘the grant’). In accordance with Article 3 of that agreement, implementation of the project was to begin on 1 September 2015 and last 36 months.
6By virtue of Article 5.2 of the grant agreement, the grant covers, in particular, reimbursement of 70 % of the eligible costs of beneficiaries which are legal entities established for profit. Those eligible costs include, in particular, first, ‘direct staff costs’ and, second, ‘indirect costs’ calculated on a lump-sum basis. The ‘direct personnel costs’ are themselves subdivided into two categories, namely, first, ‘actually incurred costs’ or ‘actual costs’ and, second, ‘unit costs’, determined on the basis of an amount per unit calculated in accordance with the beneficiary’s usual cost accounting practices.
7By virtue of Article 6.1(a)(iv) of the grant agreement, actual costs are eligible provided, in particular, that they are ‘incurred in connection with the [project] and necessary for its implementation’.
8Under Article 6.2(A.1) of the grant agreement, ‘personnel costs are eligible, if they are related to personnel working for the beneficiary under an employment contract (or equivalent appointing act) and assigned to the [project]’. That same article stipulates that personnel costs ‘must be limited to salaries …, social security contributions, taxes and other costs included in the remuneration, if they arise from national law or the employment contract (or equivalent appointing act)’.
9Article 6.5 of the grant agreement defines and lists the ineligible costs. That article refers, inter alia, in paragraph (a), to ‘costs that do not comply with the conditions set out [in] Articles 6.1 to 6.4 [of the grant agreement]’ and, in particular, in paragraph (a)(i), to ‘costs related to return on capital’.
10Article 6.6 of the grant agreement provides that declared costs that are ineligible will be rejected.
11By virtue of Article 22.1.3 of the grant agreement, the REA or the Commission may carry out audits on the proper implementation of the project and compliance with the obligations under that agreement. A draft audit report and then an audit report will then be drawn up and notified to the coordinator or the beneficiary concerned.
12Article 22.5.1 of the grant agreement provides that findings made in the course of audits may lead, inter alia, to the rejection of ineligible costs. Under that same article, audits that find systemic or recurrent errors may also lead to consequences in other grants awarded under similar conditions, by extension to those grants of the findings made in respect of the grant in question.
13Article 42.1 of the grant agreement provides that the REA will reject any costs which are ineligible, in particular following audits.
14Article 44.1 of the grant agreement provides that the REA will claim back any amount that was paid but is not due under that agreement. Article 44.1.3 of that agreement, which concerns recovery of amounts after payment of the balance, provides, in essence, that the REA will send the beneficiary a pre-information letter, and then a confirmation letter and a debit note. In the absence of payment, the REA may offset the amount, take legal action or adopt an enforceable decision under Article 299 TFEU.
15Article 57.1 of the grant agreement provides that that agreement is governed by the applicable EU law, supplemented if necessary by the law of Belgium.
16Article 57.2 of the grant agreement provides that the General Court – or, on appeal, the Court of Justice – has sole jurisdiction in disputes concerning the interpretation, application or validity of that agreement, in accordance with Article 272 TFEU.
17In the course of implementation of the grant agreement, the applicant received from the REA a grant in the amount of EUR 240 171.21, on the basis of declared eligible costs in the amount of EUR 343 101.72 and a reimbursement rate of 70 %.
Audit procedure
18In 2021, the Commission carried out an audit of the implementation of three grant agreements entered into by the applicant in the context of the Horizon 2020 framework programme, including the grant agreement at issue in the present case. In relation to the latter agreement, the audit covered the period from 1 September 2015 to 31 August 2018.
19On 30 June 2021, the Commission sent the applicant a draft audit report.
20By letter of 21 December 2021 (‘the closure letter’) and by a final audit report of the same date, the Commission informed the applicant of the definitive outcome of the audit.
21In the course of the audit, the Commission made a number of adjustments to the costs that were eligible under the grant agreement.
22In particular, the Commission considered that certain bonuses or commissions (‘the bonuses at issue’), paid to two employees of the applicant (‘the two employees concerned’) and declared by the applicant as personnel costs, related to the pursuit of various objectives of a commercial nature. On that basis, it concluded that the costs corresponding to those bonuses had not been incurred in connection with the project and were not necessary for its implementation, such that they did not fulfil the eligibility conditions set out in Article 6.1(a)(iv) of the grant agreement and explicated by the annotated model grant agreement for the Horizon 2020 framework programme (‘the annotated model grant agreement’). It therefore determined that the bonuses at issue, amounting to EUR 14 758.03, were not eligible and accordingly made an adjustment.
23Consequently, taking account of the various adjustments made in favour either of the REA or of the applicant, the Commission reduced the total amount of costs that were eligible under the grant agreement by EUR 12 927.34.
24Furthermore, the Commission considered that certain errors identified in the course of the audit were potentially of a systematic or recurrent nature. Consequently, it opened a procedure to extend the audit findings to other grants, in accordance with Article 22.5.1 of the grant agreement.
25However, by letter of 21 February 2022 (‘the clarification letter’), the Commission informed the applicant that it had extended the audit findings only to open grants, and not to all the non-audited periods or grant agreements. It stated that this limitation of the extension of the audit findings had been allowed exceptionally because previous audits had not identified the ineligibility of the bonuses at issue, which were based on commercial targets.
Recovery procedure
26By letter of 17 January 2022, headed ‘pre-information letter’, the REA informed the applicant that, by way of implementation of the audit carried out by the Commission and having regard to the reimbursement rate of 70%, it intended to recover the sum of EUR 9 049.14.
27By letter of 23 February 2022 to the applicant (‘the confirmation letter’), the REA confirmed that the sum of EUR 9 049.14 was to be recovered. Enclosed with that letter was a debit note in the same amount, issued by the REA on the same day (‘the debit note’).
Forms of order sought
28The applicant claims that the Court should:– declare the acts adopted by the Commission and the REA, and in particular the closure letter, the final audit report, the confirmation letter and the debit note, to be ‘null, illegitimate, annulled and devoid of effect’;– declare that the sums excluded from the eligible costs are eligible, that the applicant is entitled to have those sums taken into account in the calculation of the amount of the grant and that the Commission is not entitled to recover those sums;– order the Commission and the REA to pay the costs.
29The Commission contends that the Court should:– reject the application as inadmissible in so far as it concerns the Commission;– order the applicant to pay the costs.
30The REA contends that the Court should:– dismiss the action as being inadmissible in whole or in part or, failing that, as being entirely unfounded in so far as it concerns the REA;– order the applicant to pay the costs.
Law
Subject matter and scope of the action
31It is apparent from the wording and content of the applicant’s pleadings, considered in their entirety, and in particular from the heading to the application and the further detail given in the reply, as well as from the fact that the Commission is responsible for the audit procedure while the REA is responsible for the recovery procedure, that the applicant asks the General Court, in essence:– first, by its first head of claim, based on Article 263 TFEU, to annul the acts adopted in relation to the applicant by the Commission and by the REA, in particular the closure letter, the final audit report, the confirmation letter and the debit note, in so far as those acts relate to the implementation of the grant agreement;– second, by its second head of claim, based on Article 272 TFEU, to declare that the bonuses at issue are eligible and accordingly that the Commission – and consequently the REA – are not entitled to seek reimbursement of the sums corresponding to those bonuses.
The jurisdiction of the General Court and the admissibility of the action
As regards the claims made on the basis of Article 263 TFEU
32The Commission raises a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court, arguing in particular that the applicant’s claims for annulment are inadmissible. It submits, in essence, first, that those claims are directed against acts which form part of a contractual context and do not produce binding legal effects or involve the exercise of the prerogatives of a public authority. Furthermore, some of those acts, more specifically the confirmation letter and the debit note, were acts of the REA, and the Commission thus has no passive legitimation in relation to them. Second, the Commission submits that the application does not satisfy the requirements of Article 76(d) and (e) of the Rules of Procedure in that it does not clearly set out the legal basis of the action or the factual and legal arguments relied on in support of the claim for a declaration that the contested acts are ‘null, illegitimate, annulled and devoid of effect’.
33Without raising a formal objection of inadmissibility under Article 130(1) of the Rules of Procedure, the REA also submits that the claims for annulment are inadmissible, for reasons similar to those advanced by the Commission. In particular, it submits, in essence, first, that the applicant is seeking annulment of acts which are contractual – and not administrative – in nature, and second, that, since the application does not set out the pleas in law relied on in support of the claim for annulment, it does not satisfy the requirements of Article 76(d) of the Rules of Procedure.
34The applicant disputes the Commission’s arguments and those of the REA, submitting that its claims for annulment are admissible.
35It must be observed that, according to settled case-law, an action for annulment under Article 263 TFEU is generally available against all measures adopted by the EU institutions, bodies, offices and agencies, 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 or her legal position (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; see also, judgment of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 62 and the case-law cited).
36In that regard, it is in principle only those measures which definitively determine the position of an EU institution, body, office or agency upon the conclusion of an administrative procedure and which are intended to have legal effects, which are open to challenge and not, inter alia, intermediate measures whose purpose is to prepare for the final decision and which do not have those effects (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 10, and of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 42).
37Furthermore, where there is a contract between the applicant and one of the institutions or one of the bodies, offices or agencies of the European Union, an action may be brought before the Courts of the European Union on the basis of Article 263 TFEU only where the contested measure 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 contracting institution, body, office or agency acting in its capacity as an administrative authority (judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 20; of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 50; and of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 65).
38In the present case, first, it should be observed that the various contested acts all form part of the context of the grant agreement, from which they are not separable.
39On the one hand, the acts adopted by the Commission, in particular the closure letter and the final audit report, are based on the stipulations in Articles 22.1.3 and 22.5.1 of the grant agreement, under which that institution may carry out audits which may lead to the rejection of ineligible costs (see paragraphs 11 and 12 above).
40On the other hand, the acts adopted by the REA, in particular the confirmation letter and the debit note, are based on Articles 42.1 and 44 of the grant agreement, under which, following an audit, the REA will reject costs which are not eligible and reclaim from the beneficiary any amount paid but not due (see paragraphs 13 and 14 above).
41Second, there is nothing in the file that could lead to the conclusion that the Commission and the REA acted in the exercise of their prerogatives as public authorities.
42On the one hand, the acts adopted by the Commission, in particular the closure letter and the final audit report, do not require or even request the applicant to reimburse any sum of money and thus do not alter its legal position.
43Furthermore, contrary to the applicant’s submissions, it is not apparent either from the acts adopted by the Commission or from their context that that institution intended to require the REA to proceed in accordance with the findings of the final audit report or to prohibit it from departing from those findings. Thus, the final audit report states that its objective is to express an ‘independent opinion’ as to whether the costs have been properly incurred and are eligible costs. As regards the closure letter, it states that it merely informs the applicant of the outcome of the audit and that it does not express a final position on the financial impact of the audit, with the REA still to analyse the impact and inform the applicant accordingly.
44It follows that the acts adopted by the Commission, in particular the closure letter and the final audit report, are preparatory acts and do not, in themselves, produce any binding legal effects in relation to the applicant or the REA (see, by analogy, orders of 8 February 2010, Alisei v Commission, T‑481/08, EU:T:2010:32, paragraphs 67 and 75, and of 9 June 2016, IREPA v Commission and Court of Auditors, T‑825/14, not published, EU:T:2016:345, paragraph 30). A fortiori, the adoption of those acts does not involve the exercise of the prerogatives of a public authority.
45On the other hand, the acts adopted by the REA, in particular the confirmation letter and the debit note, merely request payment from the applicant of the sum of EUR 9 049.14 and inform it that, in the event of non-payment, the REA will proceed to recover that sum, for example by setting it off or adopting an enforceable decision pursuant to Article 299 TFEU.
46The Court of Justice has held that a debit note or demand for payment, stating the due date and payment terms of a contractual debt, cannot be equated to an enforcement order as such, even though it refers to enforcement pursuant to Article 299 TFEU as a possible recovery option, among others, in the event that the debtor fails to pay by the due date. Accordingly, a debit note or demand for payment is not intended to produce legal effects which derive from the exercise of the prerogatives of a public authority (see, to that effect, judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraphs 23 and 24; of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 52 and of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 66).
47It follows that the acts adopted by the REA, in particular the confirmation letter and the debit note, equally do not involve the exercise of the prerogatives of a public authority.
48That being so, the contested acts cannot be challenged by way of an action for annulment based on Article 263 TFEU.
49Accordingly, the applicant’s claims for annulment must be dismissed as inadmissible, in accordance with the Commission’s plea of inadmissibility and the REA’s submissions that those claims are subject to an absolute bar. In those circumstances, it is unnecessary to examine the submissions of the Commission and the REA that those claims also fail to satisfy the requirements of Article 76(d) and (e) of the Rules of Procedure.
As regards the claims made against the Commission on the basis of Article 272 TFEU
50In the objection it raises pursuant to Article 130 of the Rules of Procedure, the Commission submits that the claims brought against it on the basis of Article 272 TFEU are ‘inadmissible’. Given that it is not party to the grant agreement, it has no passive legitimation.
51The applicant disputes the Commission’s arguments and contends that the Commission can be sued on the basis of Article 272 TFEU.
52It is settled case-law that only the parties to a contract containing an arbitration clause can be parties to an action brought pursuant to Article 272 TFEU (see, to that effect, judgment of 7 December 1976, Pellegrini v Commission and Flexon-Italia, 23/76, EU:C:1976:174, paragraph 31, and order of 16 June 2021, Green Power Technologies v ECSEL Joint Undertaking, T‑533/20, not published, EU:T:2021:375, paragraph 43 and the case-law cited).
53In the present case, it is common ground that the grant agreement contains an arbitration clause assigning jurisdiction to the General Court (see Article 57.2 of that agreement, referred to in paragraph 16 above).
54However, the grant agreement was signed only by the applicant and the REA, which has separate legal personality from the European Union (see paragraph 3 above). Accordingly, the REA is the applicant’s sole co-contractor and the Commission cannot be regarded as a party to that agreement.
55That conclusion is not called into question by the fact that the acts adopted by the REA, in particular the confirmation letter and the debit note, originated from those adopted by the Commission, in particular the closure letter and the final audit report. The clauses of the grant agreement providing that the Commission may carry out an audit (see Article 22.1.3 of the grant agreement, referred to in paragraph 11 above) and that the REA may then give effect to that audit, particularly by rejecting ineligible costs (see Articles 22.5.1 and 42.1 of the grant agreement, referred to in paragraphs 12 and 13 above), are standard clauses which often appear in grant agreements and do not have the object or effect of making the Commission party to the grant agreement (see, to that effect, order of 16 June 2021, Green Power Technologies v ECSEL Joint Undertaking, T‑533/20, not published, EU:T:2021:375, paragraphs 44 and 45).
56It follows that, since the Commission is not party to the grant agreement, the General Court has no jurisdiction to rule on the claims brought by the applicant pursuant to Article 272 TFEU and directed against that institution (see, to that effect, judgment of 7 December 1976, Pellegrini v Commission and Flexon-Italia, 23/76, EU:C:1976:174, paragraph 31, and order of 16 June 2021, Green Power Technologies v ECSEL Joint Undertaking, T‑533/20, not published, EU:T:2021:375, paragraph 47 and the case-law cited).
57Accordingly, the claims brought by the applicant against the Commission pursuant to Article 272 TFEU must be rejected as having been brought before a court which has no jurisdiction to hear them.
58It follows from the foregoing that the action can only be substantively examined in so far as it is brought pursuant to Article 272 TFEU and directed against the REA.
Whether the claims brought against the REA under Article 272 TFEU are well founded
59In support of the claims it has brought against the REA pursuant to Article 272 TFEU, the applicant formally raises three pleas in law, the first alleging that the bonuses at issue were not commercial in nature, the second alleging a breach of the principle of the protection of legitimate expectations, and the third alleging an erroneous interpretation of the grant agreement.
60Having regard to the content of those three pleas, it is appropriate to begin by examining, together, the first and third pleas, both of which are based, in essence, on breach of the grant agreement, before turning to the second plea, which is based on breach of the principle of the protection of legitimate expectations.
The first and third pleas, based on breach of the grant agreement
61By its first and third pleas, the applicant maintains, essentially, that the bonuses at issue were paid in connection with the project and that they were necessary for its implementation, such that they met the eligibility conditions set out in Article 6.1(a)(iv) of the grant agreement, interpreted in the light of the annotated model grant agreement.
62The REA disputes the applicant’s submissions.
–General considerations
63In the first place, it is apparent from the combined provisions of Article 6.1(a)(iv) and Article 6.2(A.1) of the grant agreement, referred to in paragraphs 7 and 8 above, that the actual and indirect personnel costs are eligible on condition, inter alia, that they were incurred ‘in connection with the [project]’ and were ‘necessary for its implementation’.
64In the second place, the applicant and the REA also refer to the explanations given in the annotated model grant agreement as regards the conditions for eligibility of personnel costs. In the version of 30 March 2015, which is applicable to the facts of the present case (see page 46 of that model agreement), that document, which provides commentary on Article 6 of the general model grant agreement drawn up by the Commission (‘the general model grant agreement’), states as follows:‘… Payments of dividends to employees (profit distribution) are ineligible under Article 6.5(a)(i) [of the general model grant agreement]. (However, complements [of remuneration] based on the overall financial performance of the organisation (e.g. profitability or surplus) may be accepted as variable complements, if they fulfil the conditions set out below.)Examples (acceptable)If the profit of the company at the end of the year is more [than EUR X] (or more than X %), each employee will receive a complement of z % of his/her basic remuneration (or a fixed complement of [EUR x] more as part of the gross salary).Examples (not acceptable)If the profit of the company at the end of the year is more [than EUR X] (or more than X %), z % of that profit will be distributed to employees [through] extra remuneration.Any part of the remuneration which is calculated with reference to commercial targets (e.g. [EUR x] for reaching a sales target, x % on sales) or fund raising targets (e.g. [EUR x] premium per externally funded project gained, x % of the external funding gained) is ineligible. The reason is that [such costs] are neither incurred in connection with [the project concerned] nor necessary for its implementation.Example (not eligible because linked to fund raising target): A premium paid as a reward for having obtained a specific grant is not eligible …’
65It must be observed that, as stated in the introductory note, the annotated model grant agreement aims to explain the general model grant agreement and help users understand and interpret grant agreements drawn up on the basis of that model. Although not binding, that document, which is published and available to all contracting parties, forms part of the context in which the grant agreement was concluded and must, therefore, be taken into account by the Court in interpreting that agreement (see, to that effect and by analogy, judgments of 14 November 2017, Alfamicro v Commission, T‑831/14, not published, EU:T:2017:804, paragraphs 68 and 104, and of 13 July 2022, VeriGraft v Eismea, T‑457/20, EU:T:2022:457, paragraph 109).
66In the third place, the allocation of the burden of proof with regard to the eligibility of the costs incurred by the applicant is governed by the substantive law applicable to the grant agreement, which is EU law, supplemented if necessary by the law of Belgium (see paragraph 15 above). In the absence of any provision of EU law governing the performance of contracts, it is Article 1315 of the former Belgian Civil Code – applicable ratione temporis to the facts of the present case – which must be applied. That article provides that a person who claims the performance of an obligation must prove it and that, reciprocally, a person who claims to be released must prove payment or the fact which has extinguished his or her obligation. It follows that it is for the applicant, which declared costs with a view to receiving a financial contribution from the European Union, to prove that those costs meet the eligibility conditions contained in the grant agreement (see, to that effect, judgments of 16 July 2014, Isotis v Commission, T‑59/11, EU:T:2014:679, paragraph 83 and the case-law cited, and of 27 April 2022, Sieć Badawcza Łukasiewicz – Port Polski Ośrodek Rozwoju Technologii v Commission, T‑4/20, EU:T:2022:242, paragraphs 113 and 114 and the case-law cited).
–Description of the bonus scheme put in place by the applicant
67The applicant put in place a scheme under which bonuses were paid to its employees.
68It is apparent from the applicant’s internal documentation that, in general, the amount of those bonuses takes account of various objectives or targets, such as (i) the job order margin, (ii) the contribution margin, (iii) order acquisition, (iv) average collection time, (v)effort time on job order, (vi) invoices to be issued, (vii) revenues on job order and (viii) the earnings before interest, taxes, depreciation and amortisation (‘the EBITDA’) (‘objective (i)’, ‘objective (ii)’, ‘objective (iii)’, ‘objective (iv)’, ‘objective (v)’, ‘objective (vi)’, ‘objective (vii)’ and ‘objective (viii)’).
69In practice, those objectives relate either to a specific order (objectives (i), (v) and (vii)), or to the activity of an organisational unit of the applicant for a reference zone during the year (objectives (ii) to (iv) and (vi)), or to the overall financial performance of the applicant or its group (objective (viii)). They are considered to have been achieved when a threshold value (which may be a minimum or a maximum) is reached.
70The principle and the amount of the bonuses are determined according to rules of award and calculation contained in individual incentive plans negotiated between the applicant and its employees. Those incentive plans generally provide for a bonus to be awarded where one of objectives (i) to (vii) is achieved and for the gross amount of that bonus to be calculated as a function of the results achieved in respect of the objective concerned. Where applicable, bonuses relating to the different objectives taken into account are added together to produce an overall bonus. In the event of a ‘late resolution of non-conformity’, a penalty is applied. Lastly, a multiplier relating to objective (viii) is applied to adjust the overall bonus and calculate the bonus due to the employee, which nonetheless cannot exceed a maximum amount.
71In particular, in relation to the project covered by the grant agreement, the incentive plans agreed by the two employees concerned were added to the file. It is apparent from those incentive plans that the amount of the bonuses paid to those two employees is calculated as a function, first, of the margin on a specific order (objective (i), for one of the two employees only), second, of the contribution margin (objective (ii)), and, third, of the EBITDA (objective (viii)). Furthermore, the bonuses paid to those two employees are subject, respectively, to ceilings of EUR 9450 and EUR 20250 per year.
–Whether the bonuses at issue are eligible or ineligible
72In the course of the audit and recovery procedures, the Commission and the REA took the view, in essence, that the bonuses at issue related to the attainment of targets of a commercial nature and that, for that reason, they did not constitute eligible costs (see paragraph 22 above).
73Before the Court, the REA clarified its position and explained, in particular, that the objectives set out in paragraph 68 above, especially those relating to the margin on a specific order (objective (i)) and the contribution margin (objective (ii)), relate to the carrying out of activities which are evidently commercial in nature. It also observes that the amount of the bonuses at issue is set in direct proportion to the commercial targets. Thus, for example, the bonuses relating to the margins achieved are awarded where a reference margin is exceeded and by applying a multiplier to the margins achieved. Relying on the explanations given in the annotated model grant agreement, the REA submits that it follows that, having regard to their characteristics, the bonuses at issue are of a commercial nature and, accordingly, do not relate to costs incurred in connection with the project and are not necessary for its implementation, such that they do not fulfil the eligibility conditions set out in Article 6.1(a)(iv) of the grant agreement.
74The applicant acknowledges that, in accordance with the explanations given in the annotated model grant agreement, any remuneration which is calculated on the basis of commercial targets is ineligible. Equally, it does not dispute the REA’s observation that the bonuses at issue are conditional on and proportional to the attainment of certain objectives (see paragraph 73 above).
75Nonetheless, the applicant disputes that the bonuses at issue are commercial in nature. It maintains, in essence, that, notwithstanding the fact that they are erroneously described as ‘commissions’, the bonuses at issue relate to the attainment of overall, collective economic targets which are defined at the level of the undertaking, or at least at the level of a division of the undertaking, and not to the attainment of individual commercial targets (and in particular sales targets) defined at the level of each employee. Accordingly, it submits, those bonuses constitute ‘complements based on the overall financial performance of the organisation’, and are accordingly eligible in accordance with the explanations given in the annotated model grant agreement.
76The applicant also submits that the amount of the bonuses at issue is subject to a ceiling, such that those bonuses cannot be regarded as ineligible ‘dividends’ within the meaning of the annotated model grant agreement.
77Before examining specifically whether the bonuses at issue were eligible and examining the applicant’s submissions, it is necessary to interpret Article 6.1(a)(iv) of the grant agreement, having regard to the explanations given in the annotated model grant agreement.
78It should be observed at the outset that the extract from the annotated model grant agreement relied on by the parties and reproduced in paragraph 64 above excludes, as ineligible, two distinct categories of costs, namely, first, dividends and profits distributed to employees and, second, complements of remuneration calculated on the basis of commercial objectives or fundraising objectives. Those two categories of costs cannot be regarded as ‘costs incurred in connection with [the project in question] and necessary for its implementation’ within the meaning of Article 6.1(a)(iv) of the general model grant agreement.
79Furthermore, the following observations should be made.
80First, as regards dividends and profits distributed to employees, the annotated model grant agreement states that variable or fixed complements of remuneration which are based on the overall financial performance of the organisation may nevertheless be eligible, if they fulfil certain conditions.
81In that regard, a first condition relates to the method used to calculate the complement of remuneration. It is apparent from the examples given in the annotated model grant agreement that the complement of remuneration may take the form of a lump sum or of a certain percentage of the basic remuneration. On the other hand, the complement may not take the form of a certain percentage of company profits, as in that case it would amount to a distribution of dividends.
82A second condition relates to the exclusion of complements of remuneration which are calculated on the basis of commercial or fundraising targets (see paragraph 83 below). It follows that, as the REA essentially – and correctly – observes, a complement of remuneration based on the overall financial performance of the organisation is ineligible if it is also based, inextricably, on commercial or fundraising targets.
83Second, as regards complements of remuneration calculated on the basis of commercial or fundraising targets, the annotated model grant agreement states, in essence, that fixed or variable bonuses which are granted in consideration of such targets being achieved are ineligible. That applies, in particular, to bonuses taking the form of a lump sum which is conditional on a sales or fundraising target being achieved or on a certain percentage of sales being achieved or a certain percentage of funds raised.
84In that regard, it does not appear from the annotated model grant agreement that only objectives which are set at employee level can be regarded as commercial or fundraising targets, such that objectives which are set at the level of the whole organisation, or at the level of a division of that organisation, cannot, by definition, constitute commercial or fundraising targets. It follows that, contrary to what the applicant suggests, complements of remuneration based on objectives fixed at the level of the whole organisation (or, a fortiori, at the level of a division of the organisation) are not necessarily eligible. Thus, the eligible complements of remuneration envisaged in the annotated model grant agreement must, first, be set at the level of the whole organisation, second, be based on the overall financial performance of that organisation and, last, not refer to commercial or fundraising targets.
85Those considerations must be borne in mind in interpreting the provisions of the grant agreement and determining whether the bonuses at issue were eligible or ineligible.
86In that regard, it should be observed that the bonus scheme put in place by the applicant is based on two types of objectives.
87In the first place, the first seven objectives listed in paragraph 68 above are defined in relation either to a specific order, or to the activity of a division of the applicant during the year. That applies, in particular, to the margin on a specific order (objective (i)) and the contribution margin (objective (ii)), referred to in the incentive plans of the two employees concerned, the first of those margins relating to a specific order and the second to the activity of a division of the applicant during the year (see paragraph 69 above). It is thus apparent that those different objectives are commercial in nature and do not relate to the overall financial performance of the applicant.
88In addition, the bonuses paid in respect of the first seven objectives are conditional on and proportional to the attainment of those objectives. In particular, the bonuses relating to the job order margin and the contribution margin, which are referred to in the incentive plans of the two employees concerned, are directly proportional to the margins achieved (see paragraphs 73 and 74 above).
89It follows that the bonuses paid in respect of the first seven objectives are commercial in nature by reason both of their purpose and of the method by which they are calculated.
90In the second place, the eighth and last objective referred to in paragraph 68 above, namely the EBITDA, which is also expressly referred to in the incentive plans of the two employees concerned, is, it is true, connected with the overall financial performance of the applicant and the other companies in its group.
91However, even leaving aside the issue of whether it is permissible to take account of the financial performance of other companies in the applicant’s group, it must be observed that the EBITDA is not taken into account in order to calculate a free standing bonus, taking the form of a lump sum or a certain percentage of the basic remuneration, in accordance with the annotated model grant agreement. That objective is used solely to adjust the amount of the bonuses paid in respect of the first seven objectives (see paragraph 70 above). The principle and amount of those objectives depends on commercial targets being achieved (see paragraph 89 above).
92In those circumstances, it is apparent that the bonuses paid by the applicant to its employees are essentially based on commercial targets and that, consequently, the costs corresponding to those bonuses are neither incurred in connection with the project nor necessary for the implementation of that project. Accordingly, such bonuses do not satisfy the conditions contained in Article 6.1(a)(iv) of the grant agreement.
93That conclusion is not called into question by the arguments raised by the applicant as summarised in paragraphs 75 and 76 above.
94First, the applicant relies on the fact that the objectives listed in paragraph 68 above do not relate to the individual activity of the employee, but to collective results achieved by the undertaking or one of its divisions.
95In that regard, even supposing that the objectives listed in paragraph 68 above do not relate to the individual activity of the employee, it is nevertheless apparent from the principles set out in paragraph 84 above that objectives which are set at the level of an organisation or a division of an organisation may be commercial in nature. That is the case in relation to the first seven objectives (see paragraph 87 above).
96Second, the applicant submits that, given that they do not involve the ‘sale’ of goods or services, the objectives listed in paragraph 68 above are not ‘commercial’ but ‘economic’ objectives.
97However, the applicant has not provided any convincing explanation which would enable the concept of ‘commercial objective’ to be limited to activities of ‘sale’, a distinct concept of ‘economic objective’ to be defined, and bonuses based on ‘economic objectives’ not related to the overall financial performance of the organisation to be accepted as eligible. In particular, it must be observed that the annotated model grant agreement does not refer to any such ‘economic objectives’. That document refers only (i) to a category of bonuses which are eligible, subject to certain conditions, namely bonuses based on the overall financial performance of the organisation, and (ii) to two categories of bonuses which are always ineligible, namely bonuses calculated on the basis of commercial targets and bonuses calculated on the basis of fundraising targets.
98Third, the applicant relies on the fact that the amount of the bonus paid to an employee is subject to a ceiling.
99However, as the REA rightly points out, that ceiling is not relevant to the eligibility of the bonus. A complement of remuneration which is calculated on the basis of commercial targets is, by definition, ineligible, irrespective of how it is calculated, whether it is fixed or variable or whether or not it is subject to a ceiling.
100Fourth, the applicant submits that the bonuses at issue cannot be regarded as dividends through which employees receive the profits of the organisation.
101This argument is ineffective. A complement of remuneration which is calculated on the basis of commercial targets, such as that paid by the applicant to its employees, is, by definition, ineligible, even if it does not also have the characteristics of a dividend.
102Fifth, the applicant refers to a note issued by an independent audit firm which concludes that the bonuses paid by the applicant to its employees are eligible.
103However, that note cannot be regarded as a neutral and independent expert report, given that it was produced at the request of the applicant. It follows that it does not possess indisputable probative value (see, by analogy, judgment of 3 March 2011, Siemens v Commission, T‑110/07, EU:T:2011:68, paragraph 137). Furthermore, the note merely contains a brief analysis of the bonus scheme put in place by the applicant and does not set out any matter of law or fact beyond those already analysed in the present judgment.
104In those circumstances, the applicant has not established that the bonuses at issue are eligible.
105Consequently, the first and third pleas must be dismissed as unfounded.
106In those circumstances, it is unnecessary to examine the REA’s arguments that the action is subject to an absolute bar, which are raised on the grounds, first, that the application does not meet the requirements of Article 76(d) of the Rules of Procedure as regards the third plea, and, second, that the applicant’s argument summarised in paragraph 96 above contains a new plea raised for the first time at the reply stage.
The second plea, based on breach of the principle of the protection of legitimate expectations
107By its second plea, the applicant maintains, in essence, that the challenge to the eligibility of the bonuses in question levelled by the Commission and the REA constitutes a breach of the principle of the protection of legitimate expectations. It submits that the Commission repeatedly acknowledged the validity of the method used to determine eligible costs and accepted the treatment of the bonuses at issue as eligible costs.
108The REA disputes the applicant’s submissions.
109As a preliminary remark, it should be borne in mind that, when institutions, bodies, offices or agencies of the European Union perform a contract, they remain subject to their obligations under the Charter of Fundamental Rights of the European Union and the general principles of EU law (see, to that effect, judgment of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 86). Thus, if the parties decide, in their contract, by means of an arbitration clause, to confer jurisdiction on the Courts of the European Union to hear disputes relating to that contract, those Courts will have jurisdiction, independently of the applicable law stipulated in that contract, to examine possible infringements of the Charter of Fundamental Rights and of the general principles of EU law (judgment of 16 July 2020, Inclusion Alliance for Europe v Commission, C‑378/16 P, EU:C:2020:575, paragraph 81).
110It follows that by invoking, in support of its claims based on Article 272 TFEU, the breach of the principle of the protection of legitimate expectations, the applicant is invoking a rule which the EU administration is required to respect in a contractual framework.
111Furthermore, in Belgian law, which is applicable to the present case on a subsidiary basis (see paragraphs 15 and 66 above), a form of legitimate expectation may be relied on in contract law to the extent that it contributes to respect for the obligation on the parties to a contract to perform it in good faith (see, to that effect, judgments of 18 November 2015, Synergy Hellas v Commission, T‑106/13, EU:T:2015:860, paragraphs 72 and 73, and of 4 May 2017, Meta Group v Commission, T‑744/14, not published, EU:T:2017:304, paragraphs 193 and 194).
112It should be observed that, according to settled case-law, the right to rely on the principle of the protection of legitimate expectations presupposes that precise, unconditional and consistent assurances, originating from authorised and reliable sources, have been given to the person concerned by the competent authorities of the European Union. However, a person may not plead breach of that principle unless he has been given precise assurances (see judgments of 17 March 2011, AJD Tuna, C‑221/09, EU:C:2011:153, paragraph 72 and the case-law cited, and of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 75 and the case-law cited).
113In the present case, in seeking to establish a breach of the principle of the protection of legitimate expectations, the applicant relies on three indications by the Commission of its position, which it is appropriate to consider in chronological order.
114In the first place, the applicant explains that, in the context of the seventh framework programme for research, technological development and demonstration activities (2007-2013) (‘the seventh framework programme’), the Commission approved the methodology used to calculate its personnel costs and asked the applicant to notify it of any change to that methodology.
115In that regard, it is common ground that, on 17 March 2011, the applicant submitted to the Commission a certification form describing the methodology used to calculate its personnel costs (‘the methodology certificate’). That document set out a system of variable bonuses awarded by means of ‘incentive letters’ and determined on the basis, first, of the individual performance of the employee and, second, of the performance of the undertaking and of the division of the undertaking to which that employee was assigned.
116By letter of 1 July 2011, the Commission approved the methodology certificate (‘the letter approving the methodology certificate’). That letter stated in particular that, in the event of the certified methodology being changed, the applicant would have to declare the changes to the Commission and submit a new methodology certificate.
117However, in the same vein as the REA, first, it must be observed that the certificate of methodology concerns the seventh framework agreement. Although there are elements of similarity and continuity, the seventh framework agreement is distinct from the Horizon 2020 framework programme which replaced it and to which the project belongs. Furthermore, the letter approving the methodology certificate states that that certificate is valid for the duration of the seventh framework programme and does not envisage any extension of its validity to a subsequent framework programme. In addition, the annotated model grant agreement (see page 155 of that model agreement) expressly states that a methodology certificate approved in connection with the seventh framework programme is not valid for the Horizon 2020 framework programme.
118Second, the letter approving the methodology certificate is limited in scope, even within the confines of the seventh framework programme. That letter merely states that it releases the applicant from the obligation to submit intermediate certificates on the financial statements for claims to interim payments. Furthermore, the annotated model grant agreement states that the approval concerns the normal cost accounting practices and that, if approval is given, the Commission will not challenge the declared unit costs. It is apparent from Article 5.2 of the grant agreement, which is summarised in paragraph 6 above, that the ‘unit costs’ constitute a category of personnel costs which is distinct from the ‘actual costs’ of which the bonuses at issue form part. Furthermore, it is the ‘actual costs’ and not the ‘unit costs’ which are subject to the condition set out in Article 6.1(a)(i) of that agreement.
119Third, contrary to the applicant’s submissions, the letter approving the methodology certificate did not oblige it to leave its cost structure unchanged in order to ensure their eligibility. It is apparent both from the terms of that letter and from the explanations given in the annotated model grant agreement that that letter merely required the applicant to declare to the Commission any changes to its methodology and, where applicable, to submit a new methodology certificate.
120Accordingly, the letter approving the methodology certificate did not contain any precise and unconditional assurance to the effect that bonuses paid by the applicant to its employees, such as the bonuses at issue, would be eligible in the context of the Horizon 2020 framework programme and, in particular, under the grant agreement.
121In the second place, the applicant submits that, in the course of a previous audit relating to the Festival, PATHway and WeLive projects (‘the FPW audit’), the Commission accepted that bonuses paid to the applicant’s employees were to be accounted for as eligible costs.
122In that regard, it is true that, in the final audit report concluding the FPW audit (‘the FPW audit report’), dated 18 March 2018, the Commission stated, first, that the bonuses provided for by the applicant’s employee incentive plans ‘[were] based on the overall financial performance of the organisation[, reflected] the usual remuneration practices for national projects and [were] thus eligible as basic remuneration’, that it ‘[had been] able to validate the accuracy, objectiveness and existence of the variable complement’ and, lastly, that ‘there [was] sufficient evidence to validate the eligibility of the costs [corresponding to the variable complement]’.
123However, first, it should be observed that, as the REA has pointed out, the FPW audit did not relate to the project covered by the grant agreement but to other projects.
124Second, it is not apparent from the file that, in the course of the FPW audit, the Commission carried out a detailed and exhaustive analysis of the bonus scheme put in place by the applicant having regard to all the eligibility conditions contained in the grant agreement applicable to the projects concerned. On the contrary, the FPW audit report merely confirms, in very general terms, the eligibility of the bonuses then at issue and expresses regret that the incentive plans negotiated between the applicant and its employees had not been signed by those employees.
125Third, in the FPW audit report, the Commission expressly stated that it was a ‘report by exception’ and that, ‘as such, it cannot normally create legitimate expectations on the conformity of the costs declared or the methods of calculation used’. It also explained that ‘any audit is, by its very nature, a verification which is not exhaustive and is based on representative elements and samples’, that a ‘certain risk of non-detection is … inherent to all audits’ and that, as a consequence, ‘audit reports cannot create expectations on the conformity of the costs declared and of the calculation methods used’. Such caveats on the scope of the FPW audit report are sufficient to introduce uncertainty precluding the creation of any legitimate expectation based on the content of that report (see, by analogy, judgment of 27 April 2022, Sieć Badawcza Łukasiewicz – Port Polski Ośrodek Rozwoju Technologii v Commission, T‑4/20, EU:T:2022:242, paragraph 141).
126Accordingly, the FPW audit report did not contain any precise and unconditional assurance as to the eligibility of bonuses paid by the applicant to its employees, such as the bonuses at issue.
127In the third place, the applicant observes that, in the clarification letter, the Commission declined to extend the audit findings to all the grant agreements, on the ground that previous audits had not identified that the bonuses at issue, which were based on commercial targets, were ineligible (see paragraph 25 above). According to the applicant, that limitation on the extension of the audit findings, first, is insufficient, and, second, demonstrates that the Commission was aware that it was causing manifest harm to its interests and legitimate expectations.
128In that regard, first, it must be observed that the applicant’s argument based on the alleged insufficiency of the limitation on the extension of the audit findings has no bearing on the present dispute. The ineligibility of the bonuses at issue was identified in the course of the audit itself, not when the findings of that audit were extended.
129Second, the REA rightly observes that in deciding, in the applicant’s favour, to limit the extension of the audit findings, the Commission was exercising its discretion under Article 22.5.1 of the grant agreement, and consequently that that decision can have no consequences as regards the present plea in law. It should be added that, as it post-dates the project implementation period, the clarification letter cannot, in any event, constitute an assurance given at a relevant time that the bonuses at issue were eligible.
130In those circumstances, the applicant has not demonstrated that the Commission gave it precise, unconditional and consistent assurances as to the eligibility of the bonuses at issue. Consequently, in accordance with the case-law cited in paragraph 112 above, the applicant cannot rely on the principle of the protection of legitimate expectations.
131The second plea must therefore be dismissed.
132It follows that the claims brought by the applicant against the REA on the basis of Article 272 TFEU must be rejected as unfounded.
133It follows from all of the foregoing that the action must be dismissed in its entirety.
Costs
134Under Article 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.
135Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission and the REA, in accordance with the forms of order sought by those parties.
Operative part
On those grounds,THE GENERAL COURT (Seventh Chamber)hereby:
1.Dismisses the action;
2.Orders Engineering – Ingegneria Informatica SpA to pay the costs.
Delivered in open court in Luxembourg on 26 July 2023.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.