T-104/15: Division of competencies between Commission and Agencies; the review of legality exercised by the Commission applies only to acts of the executive agencies which injure a third party and not to the acts of the executive agencies in their relations with their contractual partners.

Law

“38      According to well-established case-law, the lack of competenceof the institution which adopted the contested measure constitutes a ground for annulment for reasons of public policy which must be raised by the EU judicature of its own motion, even though none of the parties has asked it to do so (see, to that effect, judgments of 17 December 1959, Société des fonderies de Pont-à-Moussonv High Authority, 14/59, EU:C:1959:31, p. 473, and of 10 May 1960, Germanyv High Authority, 19/58, EU:C:1960:19, p. 488). According to the case-law of the Court, the question as to the competence of the authority which adopted the measure must be raised by the Court of its own motion even though none of the parties has asked it to do so (see, to that effect, judgments of 30 September 1982, Amylumv Council, 108/81, EU:C:1982:322, paragraph 28, and of 13 July 2000, Salzgitter vCommission, C‑210/98 P, EU:C:2000:397, paragraph 56 and the case‑law cited).

39      In the present case, the question relating to the existence of a legal basis granting the Commission the power to take the contested decision arises.

40      In that respect, it should be noted that Regulation No 58/2003 empowers the Commission to set up executive agencies. Under Article 6(1) and (2) of Regulation No 58/2003, the Commission may entrust those agencies with the implementation of one or more Union programmes. Although the Commission continues to perform tasks requiring discretionary powers in translating political choices into action, the agency may be entrusted with managing the phases of the project, adopting the instruments of budget implementation and, on the basis of the power delegated by the Commission, carrying out the activities required to implement a Community programme, and in particular activities linked to the awarding of contracts and grants(see judgment of 11 December 2013, EMA vCommission, T‑116/11, EU:T:2013:634, paragraph 292).

41      In addition, Article 4(2) of Regulation No 58/2003 provides that an executive agency is to have legal personality, and it is apparent from Article 20 of that regulation that the implementation of the Communityprogrammes entrusted to executive agencies shall be supervisedby the Commissionand that such scrutiny shall be exercised in accordance with the procedures laid down in Article 6(3).

42      In that regard, Article 6(3) of Regulation No 58/2003 states that the details of the checks to be performed by the Commission departments responsible for Community programmes in whose management the executive agency is involved, are defined by the Commission in the instrument of delegation.

43      Pursuant to Regulation No 58/2003, the Commission established, by Decision 2009/336/EC of 20 April 2009, an executive agency, the EACEA,for the management of Community action in the fields of education, audiovisual and culture (OJ 2009 L 101, p. 26). That decision was repealed by Implementing Decision 2013/776.

44      Article 1 of Decision 2009/336 and of Implementing Decision 2013/776 provides that the statute of the EACEA is to be governed by Regulation No 58/2003.

45      Furthermore, it follows from Article 4(1) of Decision 2009/336 and Article 3(2) of Implementing Decision 2013/776 that the EACEA’s duties include in particular the management of certain strands of Community programmes, among which is the action programme in the field of lifelong learning (2007-2013), approved by Decision No 1720/2006.It is also entrusted with adopting the instruments of budget implementation for revenue and expenditure and carrying out the operations necessary for the management of the programmein question (judgment of 21 October 2010, Agapiou Joséphidèsv Commission and EACEA, T‑439/08, not published, EU:T:2010:442, paragraph 35).

46      In the present case, it is apparent from the documents in the file that the grant agreements relating to the ‘Go Green’ and ‘Ladybiz’ projects were concluded between the applicant and the EACEA, in its own name and not on behalf of the Commission. In addition, in response to proceedings brought by the applicant on 6 November 2013 and on 23 October 2014 against the decisions of the EACEA declaring certain staff costs corresponding to the remuneration paid to the partners to be ineligible, the Commission adopted two decisions: in the first, dated 3 January 2014, it upheld the applicant’s appeal and asked the EACEA to verify whether there was an employment relationshipbetween the applicant and the partners and, in the second, dated 16 December 2014, which is the contested decision, it rejected the applicant’s request and upheld the EACEA’s decision of 23 September 2014. It is not disputed, moreover, that those decisions were taken by the Commission on the basis of Article 22 of Regulation No 58/2003.

47      It is clear from the very wording of Article 22 of Regulation No 58/2003 that the review of legality exercised by the Commission applies only to acts of the executive agencies which injure a third party and not to the acts of the executive agencies in their relations with their contractual partners.

48      In that regard, it should be recalled that, while Article 20 of Regulation No 58/2003 provides that the implementation of the Community programs entrusted to the executive agencies is supervised by the Commission, it states that that supervision is to follow the procedures adopted in accordance with Article 6(3). Those provisions state in particular that the details of the checks to be performed by the Commission departments responsible for Community programmes, in whose management the executive agency is involved, are defined by the Commission in the instrument of delegation.

49      However, it must be noted that neither Implementing Decision 2013/776 nor Commission Decision C(2013) 9189final of 18 December 2013 delegating powers to the EACEA with a view to performance of tasks linked to the implementation of Union programmes in the field of education, audiovisual and culture, comprising, in particular, implementation of appropriations entered in the general budget of the Union and of the EDF allocations, in particular in Articles 4, 5, 21 and 22 thereof,empower the Commission to take decisions of the kind contested in the present case.

50      It follows that the Commission was not competent to adopt, on the basis of Article 22 of Regulation No 58/2003, the contested decision rejecting the applicant’s appeal against the decision of 23 September 2014 declaring certain staff costs relating to the grant agreements concerning the ‘Go Green’ and ‘Ladybiz’ projects concluded between the applicant and the EACEA to be ineligible.

51      As regards the second head of claim seeking a declaration that certain staff costs were eligible in the light of the provisions of the grant agreements relating to the ‘Go Green’ and ‘Ladybiz’ projects, it should be noted, as the applicant and the Commission acknowledged in their comments in response to the questions put by the Court, that the nature of the dispute is contractual, that the grant agreements at issue were concluded between the applicant and the EACEA and not between the applicant and the Commission, which did not act as a contracting party in adopting the contested decision.

52      It follows that if the present action for annulment were to be reclassified as a contractual claim under Article 272 TFEU, the action would be inadmissible in so far as it is directed against the Commission instead of the EACEA, since the grant agreements were concluded between the applicant and the EACEA.

53      In the light of all of the foregoing, it is necessary to annul the contested decision and to dismiss the remainder of the action as inadmissible”.