Article 43 - European Ombudsman
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Arbitration clause — Sixth and Seventh Framework Programmes for research, technological development and demonstration activities — Decision to recover by offsetting claims of the European Union arising from the performance of a contract — Effective judicial protection — Right to refer to the Ombudsman — Financial regulation — Debts which are certain — Legitimate expectations — Principle of non-discrimination — Principle of sound administration — Misuse of powers — Contractual liability — Audit report — Eligible costs
Outcome of the case:
On those grounds, the General Court (Seventh Chamber) hereby:
147) In support of its application for annulment of the contested decision, the applicant relies on seven pleas in law, alleging (i) infringement of Articles 43 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’); (ii) infringement of contractual provisions and of Belgian law; (iii) infringement of Article 80(1) and Article 135(4) of the Financial Regulation; (iv) infringement of the principle of the protection of legitimate expectations; (v) infringement of the principle of non-discrimination; (vi) infringement of the right to be heard and the obligation to state reasons; and (vii) misuse of powers.
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152) The applicant alleges infringement of Articles 43 and 47 of the Charter. First, it claims that the choice by the Commission to proceed with recovery by offsetting restricts the procedural rights available to it under Article 272 TFEU by making the legal protection that the applicant enjoys on that basis subject to an additional condition, or even creating a potentially permanent obstacle to that protection. It adds that, where a final offsetting decision has the effect of extinguishing the claim that was offset, the adoption of such a decision renders inevitable the initiation of legal action by the holder of the claim in order to challenge that decision. Secondly, the applicant submits that it was required, on account of the adoption of the contested decision, to initiate legal proceedings. As a consequence, the ongoing review of its complaint to the Ombudsman, of which the Commission was aware, was stopped, which resulted, inter alia, in it losing the opportunity to settle the dispute by means of mediation.
153) The Commission contends that that plea in law is unfounded.
154) In the first place, it should be noted that the principle of effective judicial protection is a general principle of EU law to which expression is now given by Article 47 of the Charter (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 52). That principle comprises various elements, in particular, the rights of the defence, the principle of equality of arms, the right of access to a tribunal and the right to be advised, defended and represented (judgment of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraph 48).
155) With regard, in particular, to the right of access to a tribunal, it must be made clear that, for a ‘tribunal’ to be able to determine a dispute concerning rights and obligations arising under EU law in accordance with Article 47 of the Charter, it must have power to consider all the questions of fact and law that are relevant to the case before it (judgment of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraph 49).
157) In that regard, it must be stated that, in the present action, the Court is required to examine both the legality of the contested decision and the merits of the Commission’s alleged contractual claims against the applicant, which underlie the adoption of that decision. To the extent that all the questions of fact and law that are relevant to the dispute at issue are being examined by the Court, it must be concluded that the present action constitutes an effective remedy within the meaning of Article 47 of the Charter.
158) In the second place, as regards the alleged infringement of the right to refer the matter to the Ombudsman, it must be noted that, recourse to the Ombudsman, in instances of alleged maladministration in the activities of the institutions, bodies, offices or agencies of the European Union, constitutes a right that is, inter alia, conferred on any legal person having its registered office in a Member State, as enshrined in Article 43 of the Charter.
162) It is apparent from all those provisions that the applicant cannot claim a right to obtain a decision from the Ombudsman on the merits of the complaint brought before him. Thus, the fact that the adoption of the contested decision obliged the applicant to bring the present action, which led to the closure of the Ombudsman’s investigation, follows from the general conditions governing the performance of the Ombudsman’s duties and does not constitute an infringement of the right guaranteed by Article 43 of the Charter.
164) It follows that the plea alleging infringement of Articles 43 and 47 of the Charter must be rejected as unfounded.
