Key facts of the case:
Appeal — Arbitration clause — Grant agreements concluded in the context of the Specific Programme ‘Civil Justice’ for the period 2007-2013 — Audit reports questioning the eligibility of certain costs — European Commission decision to recover unduly paid sums — Article 299 TFEU — Power of the Commission to adopt an enforceable decision within contractual relationships — Jurisdiction of the EU judicature — Effective judicial protection.
Outcome of the case:
On the basis of the above considerations, I propose that the Court should:
90) In a further line of argument, ADR maintains that the General Court erred in law when it found that the adoption of enforcement decisions in respect of debts arising under a contract does not infringe the right to an effective remedy enshrined in Article 47 of the Charter, as such decisions allow the Commission to set itself up as judge in its own case vis-à-vis its co-contractors and to render access to the court having jurisdiction to adjudicate on the contract entirely ineffective.
137) As the General Court rightly stated in paragraph 211 of the judgment under appeal, according to the case-law of the Court of Justice, the right of access to a tribunal under Article 47 of the Charter is guaranteed only if that tribunal has power to consider all the questions of fact and law that are relevant to the case before it. ( 100 )
139) As has already been shown, however, it is entirely wrong to assume that contracts concluded by the EU institutions are subject only to the terms of the contract and the provisions of the national law declared applicable by the parties. ( 102 ) Similarly, the General Court’s assumption that the EU institutions are subject to EU fundamental rights and other obligations imposed on them as public authorities by EU law only in the adoption of unilateral acts but not in connection with contracts ( 103 ) is unfounded. There is no question that the EU institutions are bound by these obligations, irrespective of whether they employ unilateral or contractual instruments to exercise their responsibilities. According to Article 51 of the Charter, the provisions of the Charter are addressed broadly to the institutions, bodies, offices and agencies of the European Union, without making any differentiation according to the chosen instrument. Anything else would effectively enable the EU institutions to evade the obligations imposed on them by the fundamental rights by ‘taking refuge in private law’. ( 104 )