BIB.ORDER
T-183/97 R61997B01830005.000114761150429TORDER OF 26. 9. 1997 — CASE T-183/97 R
MICHELI AND OTHERS v COMMISSION
Carla Micheli, Andrea Peirano, Carlo Nike Bianchi and Marinella Abbate, researchers with the Ente per le Tecnologie, l'Energia e l'Ambiente (ENEA, Centre for Research into New Technologies, Energy and the Environment), a public institution governed by Italian law having its headquarters in Rome, represented by Wilma Viscardini Dona, Mariano Paolin and Simonetta Dona, of the Padua Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 39 Rue Mathias Hardt,
applicants,Commission of the European Communities, represented by Eugenio de March, of its Legal Service, acting as Agent, assisted by Alberto Dal Ferro, of the Vicenze Bar, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
defendant,APPLICATION for suspension in whole or in part of the operation of the Commission's decision of 26 March 1997 adopting the principal list and the reserve list of proposals for actions eligible for a Community contribution under the MAST III programme and, accordingly, suspension of the operation of the decision excluding the Posible proposal,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
Facts and procedure
1By Decision 94/804/EC of 23 November 1994 the Council adopted a specific programme of research and technological development including demonstration (hereinafter ‘RTD’) in the field of marine science and technology (1994 to 1998), also designated ‘MAST III’ (OJ 1994 L 334, p. 59). That specific programme forms part of the fourth framework programme of the European Community for RTD activities for the period 1994 to 1998 adopted by Decision 1110/94/EC of the European Parliament and of the Council of 26 April 1994 (OJ 1994 L 126, p. 1), as amended by Decision 616/96/EC of the European Parliament and of the Council of 25 March 1996 following the accession of new Member States to the European Union (OJ 1996 L 86, p. 69).
2Article 2 of Decision 94/804 determines the ‘amount deemed necessary’ for carrying out the specific programme for 1994 to 1998 as ECU 228 million. That amount was increased to ECU 243 million by Decision 616/96. Annex II to Decision 94/804 sets out an ‘indicative breakdown’ of that amount between four areas of research. Area A covers marine science, Area B strategic marine research, Area C marine technology and Area D supporting initiatives. That breakdown does not exclude the possibility that a project could relate to several areas. An indicative amount of ECU 91 million is envisaged for Area A.
3According to Articles 4 to 6 of Decision 94/804, the Commission of the European Communities is responsible for the implementation of the MAST III programme, within the limit of the credits determined for each year by the budgetary authority. In 1994, pursuant to Article 5 of Decision 94/804, the Commission adopted a work programme, in accordance with the objectives set out in Annex I and the indicative financial breakdown set out in Annex II to that decision. That programme, which is submitted to the Court, sets out in detail, inter alia, the scientific and technological objectives and research tasks to be carried out, and the implementation schedule, including dates for calls for proposals. It provides that the Commission is to issue a first call for proposals for 1995 and 1996 and a second for 1997 and 1998. As regards the second call for proposals, the probable starting date of the contracts is, according to the work programme, between June 1997 and June 1998. An updated version of the work programme, dated 16 April 1996, also submitted to the Court, which was drawn up concomitantly with the publication on 16 April 1996 of the second call for proposals for RTD actions under the specific RTD programme in the field of marine science and technology (1994-1998) (Areas A, B, C) (96/C 110/10, OJ 1996 C 110, p. 15) defined, indicatively, a necessary estimated amount of ECU 25 million for Area A (marine science).
4Following the second call for proposals under the MAST III programme, 214 proposals for actions were submitted. They included, in Area A (marine science), the proposal entitled ‘Stability and recovery of W. Mediterranean Posidonia oceanica beds: a large scale assessment’, also called ‘Posible’, submitted by the Ente per le Tecnologie, l'Energia e l'Ambiente (ENEA, Centre for Research into New Technologies, Energy and the Environment), as coordinating body, with the participation of three other European bodies: the Consejo Superior de Investigaciones Cientificas (CSIC, Madrid), the Netherlands Institute of Ecology, Centre for Estuarine and Coastal Ecology (Nioo-Cemo, Yerseke, The Netherlands) and the University of Nice-Sophia Antipolis (France).
5For the Posible proposal, Dr Carla Micheli, a researcher with ENEA, was named in the proposal submitted by that body (Annex II to the application for interim measures) as the ‘contact person within the coordinating body’. It appears from the documents before the Court that Dr Micheli is the initiator and scientist in charge of the Posible proposal. It is common ground that before the Posible proposal was submitted Dr Micheli received copies, as provided for in point 6 of the second call for proposals, of, inter alia, the work programme, the booklet containing information on the procedure followed during the evaluation of proposals, dated 16 April 1996, known as the ‘White Booklet’, and the guide, known as the ‘Blue Guide’, published in January 1994 to provide participants with an insight into, in particular, the handling of project proposals submitted in the context of Community research and development programmes.
6The procedure for evaluating proposals is regulated as follows. Article 7 of Decision 94/804 provides that the assessment of the proposed activities and any adjustment to the indicative breakdown of the amount deemed necessary — in the case of activities where the estimated amount of the Community contribution is equal to or more than ECU 0.35 million, or which include participation by legal entities from nonmember countries or international organizations — is to be subject to the committee procedure set out in Article 6 of that decision. It is apparent from the ‘White Booklet’ and the ‘Blue Guide’ that the procedure for selecting proposals for activities to be funded consists, in practice, of two main consecutive parts. In the first part each proposal is examined in two stages by independent experts. The proposals are then classified by the Commission in four categories, on the basis of the points awarded by the external evaluators. In the second part of the procedure the Commission first selects proposals on the basis of that classification and draws up a draft list of proposals to be funded. The draft list is then submitted to the Programme Committee, composed of representatives of the Member States under the chairmanship of the representative of the Commission. Finally, the Commission adopts the list of proposals to be funded, where it has been approved by the committee.
7In the context of the first part of the selection procedure, the White Booklet and the Blue Guide state that the examination of the proposals for actions by the independent evaluators is divided into two consecutive stages and entrusted to panels of at least three experts. In stage 1 each proposal is examined by a panel of experts responsible for evaluating its scientific and technical quality. That stage is eliminatory. The White Booklet states that proposals obtaining less than 70 points in stage 1 will be excluded. In stage 2 a larger panel of evaluators, including specialists in scientific policy, industrial sectors and management, or persons with experience relevant to the economic, social or environmental aspects of the proposal, evaluates its strategic, economic and policy aspects. Each stage begins with an individual examination of the proposals by each expert, followed by group discussions aimed at reaching agreement on a common evaluation. Following each of the stages the evaluators draw up an evaluation report, or ‘consensus report’, on the proposal examined. That report, according to the White Booklet (paragraphs 28 and 30), contains, for each individual criterion, the average of the points awarded by each evaluator following discussion and the overall average obtained, together with the evaluators' observations in writing on the proposal for action, which will allow the Commission, where it informs the candidates of the decision adopted in regard to their proposals, to indicate which are the strong points and the weak points of their proposals and in what way they might be improved. The consensus report drawn up at the end of stage 1 also includes a common opinion of the evaluators for or against admission to stage 2 of the examination by independent experts. That report is communicated to the panel of experts responsible for evaluating the proposal in stage 2.
8The consensus report relating to the Posible proposal (Annex IV to the application for interim measures) states that it obtained 73 points in stage 1 and 26 points in stage 2, a total of 99 points. Another proposal, entitled ‘The Arctic Ocean System in the Global Environment’ (hereinafter the ‘AOSGE’ proposal), obtained only 63 points in stage 1 and therefore was not recommended for admission to stage 2 in the consensus report signed on 20 November 1996 (Annex V to the Commission's observations).
9It is common ground, however, that in stage 1 of the evaluation procedure scientific and technical merits of 18 of the 214 proposals submitted to the Commission were evaluated twice, by two separate panels of experts, on the basis of a statement in the Blue Guide that ‘[t]o verify the standards and the soundness of the evaluation, the Commission staff may request that between five and ten per cent of proposals are reevaluated by a second panel of experts. In cases where this second evaluation highlights a large difference of opinion, a third evaluation is possible’. According to the document of 18 February 1997 relating to these control evaluations, which has been produced by the Commission, the proposals which were to be evaluated twice were selected by the Commission in this instance before the examination had commenced, by picking each 15th proposal in alphabetical order. The Commission stated at the hearing of the parties, in answer to a question put by the President of the Court, that two proposals, including the AOSGE proposal, were also evaluated twice because of their scope and complexity. According to the document of 18 February 1997 referred to above, the Commission had determined at the outset, in the case of each proposal, which of the two panels of experts would carry out the examination provided for in the White Booklet, on which the Commission would base its evaluation of the proposal, and which would carry out the second control evaluation as provided for in the Blue Guide. Although they were informed of that dual evaluation procedure, however, the panels of experts did not know which proposals would be evaluated twice and examined the proposals before them independently.
10In the present case the panel of experts responsible for the control evaluation of the AOSGE proposal awarded it 82 points in stage 1 and recommended admission to stage 2 in the consensus report signed on 14 November 1996 (Annex 5 to the Commission's observations).
11Because of the significant difference between the evaluations in the consensus reports of 14 and 20 November 1996 relating to the AOSGE proposal, the Commission decided that the proposal should undergo a third stage 1 evaluation. The Commission stated at the hearing of the parties that the third evaluation was entrusted to the panel of independent experts responsible for evaluating the strategic, economic and political aspects of the AOSGE proposal in stage 2 of the first part of the examination. According to the explanation given by the Commission, which is supported by the documents before the Court, that panel of experts carried out the third evaluation by examining the first two consensus reports relating to the AOSGE project.-It took the average of the marks in the first two reports relating to stage 1 and awarded 23 points to the proposal in stage 2. More precisely, according to the table representing the evaluation of proposals by external evaluators, which the Commission sent to the members of the Programme Committee on 21 January 1997 and which is before the Court, the AOSGE proposal obtained 73 points in stage 1 and therefore received a total of 96 points in the first part of the evaluation procedure.
12In the second part of the evaluation procedure, the Commission selected the proposals for action to be funded, on the basis not only of their classification after the first part into four categories (Al, A2, B and C) following the points awarded by the independent experts but also of other criteria referred to in the White Booklet, such as the funds available, the need for a balance between objectives and the need to avoid duplication. The Commission submitted a draft principal list and reserve Ust to the Programme Committee. According to the documents before the Court, the draft principal list included, in Area A (marine science), all the proposals classified on the basis of the points awarded in category A2 and a number of proposals classified in category B. The draft reserve list contained, in Area A, ten proposals, all classified in category B. Among these, the AOSGE proposal was in second position and the Posible proposal in seventh position on the Ust.
13It is apparent from the draft minutes of the meeting of the Programme Committee of 24 and 25 February 1997, which are before the Court, that the committee approved the draft principal list submitted by the Commission. The draft reserve list was also approved — according to the draft minutes referred to above and to Annex II thereto — after it had been amended by the Commission, which, taking into consideration the committee's desire to strike a better balance in the proposals for action on the reserve list between the principal areas A, B, C and D of the MAST III programme, struck out the last five proposals in Area A and added one proposal in Area C.
14On 26 March 1997, in agreement with the committee's opinion, the Commission adopted the decision ‘concerning the evaluation of 73 proposals for RTD actions eligible for allocation of Community funding by virtue of the specific programme of RTD in the field of marine science and technology (1994-1998)’. 58 of those proposals are included in the principal Ust of proposals accepted for Community assistance. The remaining 15 appear on a reserve list.
15According to Article 2 of that decision, the proposals for action on the reserve list will receive Community funding ‘in so far as budget appropriations would remain available after the exhaustion of the commitment appropriations used for the actions appearing in the principal lists, in particular in the event of withdrawal of actions appearing in this list, in the event of negotiation of contracts to amounts lower than those provided for in this decision, in the event of non-observation of their obligations by contract participants if additional funds would be allocated by the budgetary Authority or in the event of adjustments of the budgetary appropriations within the same post. Recourse to the [reserve] list ... will be made according to the priorities fixed therein and according to the aims of the specific programme, as well as according to the progress made in contract negotiations, and to the amounts made available’.
16In a letter dated 26 March 1997 to Dr Micheli, which she received on 20 May 1997, the Director of Directorate D ‘RTD actions: marine science and technology’ in the Commission's Directorate-General for Science, Research and Development (DG XII) informed ENEA that, following an evaluation by independent experts and consultation with the MAST III Programme Committee, the Posible proposal had not been selected for financial contribution under that programme (Annex 3 to the application for interim measures). The Commission explained in its letter that it had been obliged to select a small number of proposals for actions to be funded owing to the limited budget appropriations available.
17In response to a request for further information from Dr Micheli, the Italian Ministry for Universities and Scientific and Technological Research stated in a letter of 22 April 1997 (Annex 5 to the application for interim measures) that the management committee for the MAST III programme had approved the reserve list following the removal, in Area A, of five proposals for action on the basis of ‘the criterion of the comparability of the proposals submitted in the three areas concerned’. The proposals excluded were the last five proposals relating to Area A on the list submitted to the committee and included, in particular, the Posible proposal. One of the five proposals thus excluded had obtained 100 points, three others 99 points and the last 98 points when examined by independent experts (Annex 5 to the application for interim measures).
18By application lodged at the Registry of the Court of First Instance on 19 June 1997, Dr C. Micheli, Dr A. Peirano, Dr C. N. Bianchi and Dr M. Abbate, all researchers with ENEA, sought the annulment of the Commission's decision of 26 March 1997 adopting the list of proposals for actions to be funded under the MAST III programme and, accordingly, the annulment of its decision to exclude the Posible proposal from such funding, which had been communicated to them by letter also dated 26 March 1997 from the Commission to Dr Micheli.
19By a separate document lodged at the Registry on the same date, the applicants also sought suspension, pursuant to Article 185 of the Treaty, of the application of the Commission's decision of 26 March 1997 adopting the principal list and the reserve list of actions to be funded under the MAST III programme and, accordingly, of the measure excluding the Posible proposal from such funding. In the alternative, they seek partial suspension of the Commission's decision of 26 March 1997, in so far as it adopts the reserve list.
20The Commission submitted its written observations in a document registered at the Court on 23 July 1997. At the request of the President of the Court, it produced a number of documents. The parties presented oral argument on 4 September 1997.
Law
21Under Article 185 of the EC Treaty, taken together with Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93/350/Euratom, ECSC, EEC of 8 June 1983 (OJ 1993 L 144, p. 21) and Council Decision 94/149/ECSC, EC of 7 March 1994 (OJ 1994 L 66, p. 29), the Court of First Instance may, if it considers that circumstances so require, order that application of the contested act be suspended in cases before it.
22The first subparagraph of Article 104(1) of the Rules of Procedure provides that an application to suspend the operation of any measure adopted by an institution, made pursuant to Article 185 of the Treaty, is to be admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance. Article 104(2) provides that such applications are to state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. The measures sought must be provisional in that they must not prejudge the decision on the substance (see the order of the President of the Court of First Instance in Case T-179/97 R Government of the Dutch Antilles v Council [1997] ECR II-1297).
A dmissibility
Arguments of the parties
23The applicants consider that their main action cannot be regarded as manifestly inadmissible. They have maintained in their main application and at the hearing of the parties that although the Posible proposal was submitted by ENEA they are directly and individually concerned by the Commission's decision excluding the proposal from funding under the MAST III programme. The Posible proposal was drawn up and submitted to ENEA's management by Dr Micheli. Dr Micheli is not only the initiator but also the scientist in charge and coordinator of the project, by decision of the other participants in the project. ENEA adopted the proposal to submit an application for Community financial assistance under the MAST III programme. The other applicants, Dr Peirano, Dr Bianchi and Dr Abbate, are aH contributors to the implementation of the project.
24Accordingly, all the applicants, and a fortiori Dr Micheli, have a direct and individual interest in obtaining the funding requested, without which the project cannot be carried out. Moreover, the fact that the project was excluded from both the principal list and the reserve list entails a loss of scientific prestige for the applicants.
25The Commission takes the view that the main action is manifestly inadmissible on the ground that the applicants are not directly concerned by the contested decision. The application for suspension of application of the decision must therefore be declared inadmissible. The Commission argues that the Posible project was submitted by ENEA as coordinator and by three other research institutions from various Member States, namely CSIC (Spain), Nioo-Cemo (The Netherlands) and the University of Nice (France), but not by the applicants. The applicants cannot therefore be regarded as the persons to whom the contested decision was directly addressed.
Findings of the President
26Article 104(1) of the Rules of Procedure provides that an application to suspend the operation of a measure is admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance. According to settled case-law, the issue of the admissibility of the main action should not, in principle, be examined in proceedings relating to an application for interim measures. It should be reserved for the examination of the main application, unless it is apparent at first sight that the main action is manifestly inadmissible, so as not to prejudge the Court's decision on the substance of the case (see, most recently, the order in Government of the Netherlands Antilles v Council, cited above, paragraph 17).
27Here it is not apparent at first sight that the main action is manifestly inadmissible. Since it is alleged to be impossible to implement the Posible programme without a Community contribution under the MAST III programme, it cannot immediately be ruled out that the applicants, and Dr Micheli in particular in her capacity as promoter and scientist in charge of the Posible project, are, contrary to what the Commission alleges, directly concerned by the contested decision not to accept their project for funding. The question whether the contested decision is of direct concern to them within the meaning of the fourth paragraph of Article 173 of the Treaty, in so far as it affects their research projects, must be the subject of a more detailed examination which cannot be carried out at this stage.
28It follows that the application for interim measures must be declared admissible.
Prima facie case
Arguments of the parties
29The applicants raise, in essence, four pleas in law. First, they allege, the Commission failed to follow the procedure for assessing proposals for actions set out in the White Booklet. The White Booklet is not merely an internal document. It was brought to the knowledge of the persons concerned before they submitted their proposal to the Commission. In the present case, contrary to its requirements, the AOSGE proposal was allowed to proceed to stage 2 of the examination by independent experts although it had not obtained the requisite minimum of 70 points in stage 1 of the examination. It was because, unlike the other proposals for actions, it was evaluated twice at stage 1 (see paragraphs 9 to 11 above) that it was not excluded at that point from funding under the MAST III programme. By thus departing from the applicable procedure the Commission infringed the principles of transparency and proper administration, which require the establishment and application of a detailed procedure which is brought to the knowledge of the participants. The Commission also infringed the principle of nondiscrimination and misused its powers.
30Moreover, the applicants dispute the extent of the discretion which the Commission took it upon itself to exercise in departing from the classification at the end of the first part of the procedure, based on the points awarded by the independent evaluators. They complain, in particular, that the Posible proposal, which had obtained 99 points, was excluded from the reserve list, while the AOSGE proposal, which had only 96 points, was included.
31The Commission rejects those arguments in their entirety. It claims that the dual evaluation of the AOSGE proposal is consistent with the procedure set out in the Blue Guide. Furthermore, the fact that that proposal was placed in second position on the reserve list although it had obtained fewer points than the Posible proposal, is the consequence of the final evaluation which the Commission is required to carry out in any event. Although based on the classification of the proposals according to the number of points awarded by the experts, that final evaluation consists of an overall examination of the projects, in the light of the strategic priorities set out in paragraph 33 of the White Booklet, which refers to the objectives of the work programme. In the present case only the AOSGE project related to research into the ice-covered seas of the northern hemisphere, which is among the objectives of the work programme. Accordingly, the Commission was not guilty of discrimination or misuse of power in choosing that project.
32Secondly, the applicants maintain that the contested decision infringes the principle of transparency and contains no statement of reasons in relation to the dual evaluation of the AOSGE proposal or the Commission's selection, in so far as it departs from the classification of the proposals according to the number of points obtained. Furthermore, the draft decision submitted to the Commission (Annex VI to the application) mentions neither the number of points obtained by the various proposals for actions nor their overall assessment by the evaluators. Nor did the Commission give its reasons for using the funds available for Area A to fund proposals for actions relating to other areas. In that regard, the applicants have stated in their main application and confirmed at the hearing of the parties that if all the furids available for Area A had been used and if the AOSGE project had been excluded from the reserve list, all the projects now in the reserve list which obtained between 100 and 105 points would have been included on the principal list and the Posible project would have been first on the reserve list.
33The Commission contends, however, that the evaluation procedure complied with the principle of transparency and the obligation to state reasons. The reason for excluding the Posible project was that there were insufficient budget resources for the large number of projects submitted, as is clear from the Commission's letter to Dr Micheli of 26 March 1997, referred to above. The Commission deemed it appropriate to present a principal list whose funding corresponded to the amounts provided for indicatively and a relatively limited reserve list from which all the projects below fifth place were automatically excluded.
34Thirdly, the applicants claim that there has been a breach of Article 7 of Decision 94/804, which provides that any adjustment to the indicative breakdown of the amount deemed necessary in Annex II to that decision is to be adopted according to the management committee procedure set out in Article 6 of that decision. In the present case, contrary to that procedure, funds were transferred from Area A to other areas.
35The Commission contends that it did not transfer funds from Area A to other areas, as the applicants claim. It points out that in Areas A, B and C the limits indicatively set out in the work programme had already been reached.
36Fourthly, the contested decision is alleged to have infringed the principles of objectivity and independence, since two representatives of the Member States on the management committee were researchers with other institutions which had submitted proposals under the MAST III programme.
37The Commission replies that at the meeting of the committee of 24 February 1997 its representative, who chairs the committee, asked those with an interest in the projects under discussion to declare that interest and not to vote on those projects.
Findings of the President
38As regards the first two pleas, alleging infringement of the procedure for evaluating proposals for actions and failure to provide an adequate statement of reasons for the contested decision, the President of the Court of First Instance considers it appropriate to begin by examining the complaints relating more specifically to the selection made by the Commission in the second stage of the evaluation of the proposals.
39In that regard, the applicants criticize the Commission, first, for having departed, in the reserve list, from the classification of the proposals according to the number of points awarded by the independent evaluators during the first part of their assessment.
40It is not prima facie apparent, however, that in the procedure for evaluating proposals for actions established by Decision 94/804 adopting the MAST III programme, and described in particular in the White Booklet, the Commission, when selecting the proposals eligible for Community assistance, can in principle be denied a discretion to depart, where appropriate, from the classification established following the expert evaluation.
41The Commission is responsible for the implementation of the MAST III programme, pursuant to Articles 4 to 6 of Decision 94/804, within the limits of the amount deemed necessary, which is defined indicatively in the work programme (see paragraph 3 above), and of the credits determined for each year by the budgetary authority.
42In particular, Decision 94/804 provides in Articles 6 and 7 that the evaluation of the proposed action is to be effected by the Commission according to the management committee procedure set out in Article 6. It was within that legal framework that the Commission defined the procedure for the selection of the proposals which appear on the draft list of activities eligible for Community funding which is submitted to the Programme Committee set up by Article 6 (see paragraph 6 above). That procedure is described precisely and in detail in the White Booklet, dated 16 April 1996, containing information on the procedure for the evaluation of proposed activities, supplemented by the Blue Guide on European Community funded research and technological development, published in 1994 to provide, as its subtitle indicates, ‘an insight into the handling of proposals’ and ‘an introduction to contract negotiation’. In accordance with settled law (see, in particular, Case T-52/90 Volger v Parliament [1992] ECR II-121, paragraphs 26 to 29), the Commission is prima facie bound by the procedures for examining proposals which it defined in those two documents, which, moreover, are made available to participants, pursuant to Article 6 of the second call for proposals published by the Commission on 16 April 1996.
43It follows from those two documents that the Commission is assisted, during an initial part of the procedure devoted to the individual evaluation of each of the actions proposed, by panels of independent experts responsible for examining the proposals according to a precise procedure set out in the White Booklet (see paragraph 7 above) and for drawing up, for each proposal, two ‘consensus reports’ relating, first, to the scientific and technical quality of the action evaluated and, secondly, to its strategic, economic and policy aspects. Those outside experts evaluate and assess the proposed actions on the basis of the criteria set in out in Annex II to the fourth RTD framework programme, referred to above, and Article 4(3) of Council Decision 94/763/EC of 21 November 1994 concerning the rules for the participation of undertakings, research centres and universities in research, technological development and demonstration activities of the European Community (OJ 1994 L 306, p. 8). Annexes I and II to the White Booklet set out those various criteria in detail, indicating weightings and minimum numbers of points required. That first part of the selection procedure ends with the proposals being classified and divided into four categories by the Commission, according to the points awarded and the observations recorded by the independent evaluators.
44In the second part of the selection procedure the Commission first draws up a draft list of actions to be funded, which will be submitted to the Programme Committee. According to the White Booklet and the Blue Guide, that list is drawn up on the basis of three principal criteria, namely the classification of the proposals according to the points awarded, the balance to be maintained between objectives and the amount of credits available. In that regard, the Blue Guide states, essentially, that unless there are ‘very good policy, practical or administrative reasons’ the actions are proposed in the order in which they are classified. In practice, according to the Blue Guide, actions with a high ranking are only passed over in favour of those with a lower ranking where there is a serious imbalance between the areas covered by the best projects and the objectives of the research, technical development and demonstration programme.
45When drawing up the draft Ust of actions to be funded, the Commission must thus, according to the procedure set out in the White Booklet and the Blue Guide, take account of two factors which could not, prima facie, be taken into consideration by the independent experts responsible for the individual evaluation of the proposals in the first part of the procedure, namely the division of the proposed actions into the various RTD areas covered by the programme and the funds available.
46At first sight, therefore, the Commission enjoys a discretion where it has to decide between projects whose scientific and technical quality and conformity with the objectives of the programme have been examined by external experts, in so far as it is responsible for ensuring the balanced implementation of all the objectives of the MAST III programme defined in Annex I to Decision 94/804 and set out in detail in the work programme drawn up by the Commission. To that end, it must carry out a comparative examination of the proposals which takes account not only of their intrinsic value and the extent to which they meet the objectives of the programme, expressed by their classification, but also of the way in which they relate to the various areas and the strategic priorities defined in terms of the objectives pursued.
47It thus appears at this stage of the examination, that, contrary to what the applicants argue, the Commission was not necessarily bound by the classification of the proposals for actions according to the points awarded when it adopted the list of actions accepted or acceptable for Community assistance.
48However, the applicants claim, secondly, that the contested decision contains no statement of reasons as regards the Commission's comparative examination of the proposals for actions. They complain, in particular, that the draft decision submitted to the Commission for the purposes of the written procedure gives no indication of the points awarded to, or overall evaluation of, the proposed actions by the independent experts.
49In that regard, it must be borne in mind, ‘where the Community institutions have such a power of appraisal, respect for the rights guaranteed by the Community legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institutions to examine carefully and impartially all the relevant aspects of the individual case, the right of the person concerned to make his views known and to have an adequately reasoned decision. Only in this way can [the Community judicature] verify whether the factual and legal elements on which the exercise of the power of appraisal depends were present’ (Case C-269/90 Hauptzollamt München-Mitte v Technische Universität München [1991] ECR I-5469, paragraph 14).
50In the light of those principles, it is immediately clear that the Commission is under a particular obligation to state its reasons where it intends to depart from the order in which the proposals for actions have been classified on the basis of the points awarded by independent experts in the two-part evaluation procedure described in the White Booklet and the Blue Guide. In that regard, moreover, the Blue Guide appears to require a particularly strong justification, related for example to the need for a balance between the various objectives pursued by the MAST III programme (see paragraph 44 above).
51In the present case, the Posible proposal, which had obtained a total of 99 points in the first part of the examination of the proposals, as is clear from the consensus report of 20 May 1997 (Annex III to the application for interim measures), was finally excluded from funding, whereas the AOSGE proposal is in second position on the reserve Ust, although it obtained fewer points. That proposal was awarded a total of 95 points according to the unsigned version of the consensus report drawn up on 13 December 1996 following stage 2 of its evaluation by external evaluators, which is among the documents before the Court, and 96 points according to the table representing the evaluation of the proposals by those evaluators which the Commission sent to the members of the Programme Committee on 21 January 1997, also among the documents before the Court.
52In its written observations, which were confirmed at the hearing of the parties, the Commission explained that the AOSGE proposal had been accepted for strategic reasons, in the light of the need to ensure, in accordance with the procedure described in the White Booklet, a balance between the objectives pursued by the MAST III programme. According to the Commission, the AOSGE proposal was the only one relating to a research activity concerning the ‘ice-covered seas of the northern hemisphere’, which is one of the objectives set out in the work programme.
53That explanation, however, was not communicated to the applicants before they made the present application for interim measures. It is therefore necessary to ascertain whether, at first sight, the statement of reasons for the contested decision which was brought to the applicants' knowledge was sufficient, having regard to its context, to allow them to determine whether it was well founded and whether to bring proceedings before the Court, and to enable the Court to review its legality (see, in particular, Volger v Parliament, cited above, paragraph 40).
54In the present case the Commission sent Dr Micheli a ‘consensus report’ relating to the Posible proposal, dated 20 May 1997, with its letter of 26 March 1997 (see paragraph 16 above). The report referred to the points awarded to the proposal in question and its evaluation in respect of each group of criteria in the two consecutive stages of its examination by independent experts, together with the total number of points obtained following that first part of the selection procedure, which was devoted to an individual evaluation of the proposed actions.
55As regards the comparative examination of the proposals during the second part of the selection procedure, the reason which the Commission gave in its letter of 26 March 1997, referred to above, for excluding the Posible proposal from Community assistance under the MAST III programme was the need to select a small number of proposals for action owing to the limited budgetary appropriations (see paragraph 16 above). That statement of reasons was, prima facie, supplemented by the letter of 22 April 1997 from the Italian Ministry of the University and Scientific Research (see paragraph 17 above), in which it is stated that the Posible proposal was excluded from the reserve list, with four other proposals also coming within Area A (marine sciences), following a comparative examination of the proposals submitted in the three areas concerned. It should also be noted that the Commission decision of 26 March 1997 adopting the principal list and the reserve Ust of proposals for actions eligible for a Community contribution states, in Annexes IA and II, setting out the proposals for actions included in those lists, the area to which each of those actions relates.
56In order to assess whether that statement of reasons relating to the comparative examination carried out by the Commission may, at first sight, be regarded as sufficient, it should first be borne in mind that, as has consistently been held, ‘[i]he principle that there must be a sufficiently precise statement of reasons, enshrined in Article 190 of the Treaty, is one of the fundamental principles of Community law’ (Case T-61/89 Dansk Pelsdyravlerforening v Commission [1992] ECR II-1931, paragraphs 129 and 131; see also Technische Universität München, cited above). However, the Court of Justice has held in that regard that the extent of the obligation to state reasons depends on the nature of the act in question and the gravity of its consequences for those to whom it is addressed. It is sufficient for it to reveal clearly and unequivocally the reasoning of the institution. For the persons concerned to be able to know the reasons for the measure and for the Community judicature to exercise its power of review, it is not necessary for the measure to specify the relevant elements of fact and of law (see, in particular, Case C-l81/90 Consorgan v Commission [1992] ECR I-3557, Case C-466/93 Atlanta Fruchthandelsgesellschaft and Others v Bundesamt für Ernährung und Forstwirtschaft [1995] ECR I-3799 and Case T-85/94 Branco v Commission [1995] ECR II-45).
57In the present case, the second plea, alleging that the contested decision did not contain an adequate statement of reasons, therefore raises in particular the delicate question whether, having regard to the discretion which the Commission enjoyed at the second stage of evaluating the proposals and to the very nature of the contested decision and its impact on the applicants' position, the information provided to them in the two letters referred to above was — in the general context of the procedure initiated by the second call for proposals under the MAST III programme — sufficient to enable them to determine whether it was lawful and to allow the Court to exercise its review. In the light of the complexity of that question, it must be examined by the Court when it rules on the main action.
58Consequently, and without there being any need to consider the other pleas or arguments raised by the applicants, the President must determine whether the conditions relating to urgency are satisfied in the present case.
Urgency
Arguments of the parties
59The applicants submit that the purpose of the interim measure which they seek is to ensure the effectiveness of the Court's final decision, so that it can provide them with effective judicial protection. In this instance the contested decision authorizes the Commission to make payments by way of Community assistance in favour of the actions included on the principal list and the reserve list. The applicants point out, in particular, that Community assistance for the AOSGE proposal comes to ECU 2674000 and is five times the amount envisaged for the Posible proposal. The use of the funds to finance the actions on the two contested lists might exhaust the financial resources available under the MAST III programme and make it impossible to fund the Posible action and other actions which might be accepted on one of the two lists if the contested decision were to be annulled. The applicants and any other candidates improperly excluded from the contested lists would thus suffer serious and irreparable damage.
60Furthermore, if the contested decision were to be annulled, the Commission would be required to demand reimbursement of the amounts unlawfully paid in the meantime, in order to allocate them to other actions on the basis of the new list which it would have to adopt pursuant to the Court's judgment. The recipients of Community assistance excluded from the new list would thus suffer serious and irreparable damage.
61The Community might also be held liable for giving the recipients of funding expectations which might be transformed into an actual right.
62For all those reasons, the applicants request the Court to suspend operation of both the principal list and the reserve list, in so far as both are affected by serious and manifest irregularities. In the alternative, they ask the Court to suspend the reserve list alone, should it find that, at first sight, the alleged irregularities have an immediate and direct impact only on that list.
63The Commission disputes those arguments. It claims that the applicants have no interest in the suspension of the principal list, since they themselves acknowledge that the Posible project would not have been included on that list even if the AOSGE proposal had been excluded from the reserve list.
64As regards the reserve list, the Commission considers that the alleged damage is purely hypothetical. For budgetary reasons, financial assistance can only be granted, until March 1998, for projects on the principal list. Moreover, the Commission would be in a position to fund projects on the reserve list only if one or more projects on the principal list could not be carried out. Finally, even in that eventuality the damage sustained by the applicants would be exclusively financial and could easily be made good if the contested decision were to be annulled.
Findings of the President
65According to established case-law, the urgency of the adoption of interim measures must be considered by examining whether the implementation of the contested measure, prior to the adoption of the decision of the Court on the main issue, is such as to give rise, for the parties requesting the measures, to serious and irreparable damage which could not be made good if the contested decision were annulled or which, despite its interim nature, would be disproportionate to the defendant's interest in having the measures implemented, even when they are the subject of legal proceedings. It is for the applicants to prove that those conditions are satisfied (see, in particular, the order of the President of the Court of First Instance in Case T-191/96 R CAS Succhi di Frutta v Commission [1997] ECRII-211, paragraph 31).
66It follows that, for the purpose of demonstrating the urgency of the adoption of the interim measure which they request, the applicants may rely only on the risk of serious and irreparable damage which they personally would run in the absence of such a measure, and not on damage which might be suffered by any other candidates who may have been unjustly excluded from the principal list or the reserve list.
67As regards the damage allegedly suffered by them, the applicants stated at the hearing of the parties that the Posible proposal for action cannot be implemented without a Community contribution under the MAST III programme. That would prevent them from pursuing their research activity and would seriously damage their scientific prestige, in particular vis-à-vis other participants in that project.
68In that connection, it must immediately be pointed out that suspension of the operation of the principal list and the reserve list, which is the principal measure sought by the applicants, would not immediately and automatically provide them with access to Community funding. It would simply mean that all funding in favour of all the proposals on both lists would be frozen pending the decision of the Court in the main action. It follows that to grant the measure sought would not at first sight appear to serve any immediate purpose for the applicants.
69The applicants claim, however, that the funding, pursuant to the contested decision, of the projects on those lists prior to their possible annulment by the judgment of the Court in the main action might exhaust the available funds, to the detriment of the Posible project if it should be accepted for Community funding following that judgment.
70In that regard, it must be pointed out that if the contested decision were to be annulled it would be for the Commission to take the necessary measures to comply with the judgment of the Court and to adopt a decision approving, where appropriate, new main and reserve lists in accordance with the operative part and the grounds of the judgment.
71In their main action the applicants maintain, in essence, that if the procedure had been conducted properly (that is, according to the applicants, if all the credits available for Area A (marine science) had been used instead of part of those credits being transferred to Areas B and C and if the AOSGE project had been excluded from the reserve list) all the projects now on the reserve list with between 100 and 105 points would have been included on the principal list and the Posible project would have been in first place on the reserve list. At the hearing of the parties in these interlocutory proceedings the applicants confirmed their view that if all the funds available for Area A had been used to fund projects relating to that area the reserve list would have been shorter and the Posible project, which in that case would have been in first place on the reserve list, would have had a more realistic prospect of obtaining funding. Although they also seek suspension of operation of the principal list on the ground that the entire procedure was void, they have expressly acknowledged that suspension of the reserve list would be a ‘sufficient measure’.
72In that regard, it is not at first sight apparent from the evidence adduced by the parties or the documents before the Court that funds from Area A were unlawfully transferred to other areas or that the credits available for Area A would have made it possible to fund, in addition to the projects on the principal Ust, the projects on the reserve list which had obtained between 100 and 105 points and thus to include them on the principal list.
73It should further be observed that the applicants stated at the hearing of the parties that suspension of the reserve list would be sufficient to protect their rights (see paragraph 71 above).
74In those circumstances, the applicants do not at first sight have any interest in seeking suspension of the operation of the principal list. It follows, in accordance with established case-law, that the conditions on which the grant of that interim measure depends are not satisfied in this case (see, in particular, the order of the President of the Court of First Instance in Case T-164/96 R Moccio. Irme v Commission [1996] ECR II-2261, paragraph 26).
75In any event, when the opposing interests are weighed up there is a clear argument against granting the principal application for suspension of operation of the principal list and the reserve list. To grant the measure requested would seriously damage the rights of the third parties whose projects are on the principal list by freezing the negotiation of contracts and the payment of Community assistance to which they are entitled under the contested decision. Furthermore, it would, while the main action is pending, hinder implementation of the MAST III programme following the second call for proposals. By considerably delaying implementation of the MAST III programme in that way, suspension of the operation of the contested decision would hinder the action of the Community in that sphere, whereas the thirteenth recital in the preamble to Decision 94/804, adopting the MAST III programme, refers to the need to promote the implementation of that programme by simplifying and accelerating the application and selection procedures and making them more transparent. Having regard to the seriously damaging consequences for the third parties referred to above and for the Community 5 the operation of the principal list were to be suspended, such an interim measure can in no way be an appropriate solution in the present case.
76It is therefore necessary to consider the applicants' alternative application for suspension of the operation of the reserve list alone. In that regard, it must be determined whether, if the reserve list were to remain in force pending the judgment in the main action, the Posible project might be deprived of the possibility of receiving a Community contribution if the contested decision should be annulled.
77To justify suspending the operation of the contested decision in so far as it adopts the reserve list, the damage alleged by the applicants must, according to consistent case-law, be imminent and real (see the order of the President of the Court of Justice in Case C-225/91 R Matra v Commission [1991] ECR I-5823, paragraphs 22 to 23, and the order of the President of the Court of First Instance in Case T-24/93 R CMBTv Commission [1993] ECR II-543, paragraph 34).
78However, it is clear from Article 2 of the contested decision that it is only where budget appropriations remain available after the commitment appropriations used for actions on the principal list have been exhausted that Community assistance may be granted to actions on the reserve list (see paragraph 15 above). In practice actions on the reserve list can only be funded if actions on the principal list are withdrawn or contracts are negotiated to amounts lower than those provided for in the decision, if participants fail to fulfil their contractual obligations, if additional funds are allocated by the budgetary authority or if budgetary appropriations within the same post are adjusted, as stated in Article 2.
79In the present case it is apparent from the information provided by the Commission in its written observations and at the hearing of the parties that only actions on the principal list will be able to receive Community funding, until March 1998, since, according to the Commission's estimates, the resources necessary to implement the principal list will exceed by ECU 26.7 million the budget appropriations available under the budget for 1997. Furthermore, even after that period it is only if some projects on the principal list fail, if the budgetary appropriations are adjusted or if additional funds are allocated that projects on the reserve list may be able to receive Community assistance, as stated in the preceding paragraph.
80It is therefore apparent that the alleged risk that the available appropriations will be exhausted by the funding of the projects in the allegedly unlawful reserve list is remote, uncertain and aleatory. It cannot materialize before the principal list has been exhausted and is, moreover, linked to the occurrence of events which are difficult to foresee at this stage, such as those referred to above.
81Such a purely potential risk of damage cannot justify suspending the operation of the reserve list. Should the risk materialize, the applicants would be able to raise the matter before the Court at that stage.
82The nonmaterial damage associated with the loss of scientific prestige which the applicants claim to have sustained owing to the exclusion of the Posible project from the reserve list could be made good by the annulment, if decided by the Court, of the contested decision in so far as it adopts the reserve list.
83For all those reasons, the conditions justifying suspension of operation of the reserve list are not satisfied in the present case.
84Accordingly, the application for interim measures must be dismissed in its entirety.
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
- 1.The application for interim measures is dismissed.
- 2.Costs are reserved.