62024CJ0790

1

By its appeal, International Management Group (IMG) seeks to have set aside the judgment of the General Court of the European Union of 4 September 2024, IMG v Commission (T‑509/21, the judgment under appeal, EU:T:2024:590), by which the General Court dismissed its action seeking, first, annulment of the decision of 8 June 2021 by which the European Commission refused to accord it, with retroactive effect from 16 December 2014, the status of an international organisation provided for by the EU Financial Regulations for the implementation of EU funds using the indirect management method (‘the decision at issue’) and, second, compensation for the material and non-material damage which it claims to have sustained.

2

Article 2(1) of the Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations Treaty Series, Vol. 1155, p. 331; ‘the Vienna Convention’) provides:

‘For the purposes of the present Convention:

…

3

Article 5 of that convention states that it ‘applies to any treaty which is the constituent instrument of an international organisation without prejudice to any relevant rules of the organisation’.

4

Under Article 31 of the Vienna Convention, entitled ‘General rule of interpretation’:

‘1.   A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2.   The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

3.   There shall be taken into account, together with the context:

…

4.   A special meaning shall be given to a term if it is established that the parties so intended.’

5

Article 32 of that convention, entitled ‘Supplementary means of interpretation’, is worded as follows:

‘Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31:

6

Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1), as amended by Council Regulation (EC, Euratom) No 1995/2006 of 13 December 2006 (OJ 2006 L 390, p. 1) (‘the 2002 Financial Regulation’), was repealed with effect from 1 January 2013 by Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1) (‘the 2012 Financial Regulation’). However, Article 212(a) of the 2012 Financial Regulation provided, inter alia, that Article 53 and Article 53d of the 2002 Financial Regulation were to continue to apply to all commitments made up to 31 December 2013.

7

Article 53 of the 2002 Financial Regulation provided:

‘The Commission shall implement the budget in accordance with the provisions set out in Articles 53a to 53d in any of the following ways:

8

Article 53d of that regulation provided:

‘1.   Where the Commission implements the budget by joint management, certain implementation tasks shall be delegated to international organisations …

…

2.   Individual agreements concluded with international organisations for the award of financing shall contain detailed provisions for the implementation of the tasks entrusted to such international organisations.

…’

9

Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1), as amended by Commission Regulation (EC, Euratom) No 478/2007 of 23 April 2007 (OJ 2007 L 111, p. 13) (‘the 2002 Financial Implementing Regulation’), was repealed, with effect from 1 January 2013, by Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1) (‘the 2012 Delegated Financial Regulation’).

10

Article 43 of the 2002 Financial Implementing Regulation, entitled ‘Joint management’, provided, in paragraph 2 thereof:

‘The international organisations referred to in Article 53d of [the 2002 Financial] Regulation shall be:

…’

11

The 2012 Financial Regulation entered into force on 27 October 2012, in accordance with the first paragraph of Article 214 thereof. It was applicable from 1 January 2013 by virtue of the second paragraph of that article, without prejudice to the specific dates of application provided for in that paragraph for certain provisions of that regulation.

12

Among those provisions was Article 58 of that regulation, entitled ‘Methods of implementation of the budget’, which was applicable only to commitments made as from 1 January 2014. Paragraph 1 of that article was worded as follows:

‘The Commission shall implement the budget in the following ways:

…

…’

13

Article 43 of the 2012 Delegated Financial Regulation, entitled ‘Specific provisions for indirect management with international organisations’, stated, in paragraph 1 thereof:

‘The international organisations referred to in point (ii) of Article 58(1)(c) of the [2012 Financial] Regulation shall be:

…’

14

The background to the dispute, as set out in paragraphs 2 to 24 of the judgment under appeal, may, for the purposes of the present case, be summarised as follows.

15

The appellant, which was initially named International Management Group – Infrastructure for Bosnia and Herzegovina (IMG-IBH), was created on 25 November 1994 to provide the States and international organisations participating in the reconstruction of Bosnia and Herzegovina with an entity specifically created for that purpose. Since then, it has gradually extended its activities into the fields of reconstruction and development.

16

On 7 November 2013, the Commission adopted Implementing Decision C(2013) 7682 final on the Annual Action Programme 2013 in favour of Myanmar/Burma to be financed from the general budget of the European Union. That decision provided, inter alia, for a programme for trade development the cost of which, estimated at EUR 10 million, was to be financed by the European Union and implemented by joint management with the appellant.

17

On 17 February 2014, the European Anti-Fraud Office (OLAF) informed the Commission that it had opened an investigation into the appellant’s status. On 15 December 2014, the Commission received the report drawn up by OLAF at the end of its investigation, in which OLAF considered, in essence, that the appellant was not an international organisation within the meaning of the 2002 Financial Regulation and the 2012 Financial Regulation.

18

On 16 December 2014, the Commission decided to entrust the implementation, using the indirect management method, of the trade development programme provided for in Implementing Decision C(2013) 7682 final, referred to in paragraph 16 of the present judgment, to an organisation other than the appellant (‘the decision of 16 December 2014’).

19

On 8 May 2015, the Commission sent a letter to the appellant informing it that it had decided, inter alia, that, until there was absolute certainty regarding the appellant’s status as an international organisation, it would not enter into any new delegation agreement with it using the indirect management method provided for by the 2012 Financial Regulation (‘the decision of 8 May 2015’).

20

By a first application lodged at the Registry of the General Court on 21 January 2015 and registered under case number T‑29/15, and then by a second application lodged at the same registry on 14 July 2015 and registered under case number T‑381/15, the appellant brought actions seeking, first, annulment of the decision of 16 December 2014 and, second, annulment of the decision of 8 May 2015 and for compensation for the damage caused to it by that decision. Those actions were dismissed by the judgments of 2 February 2017, International Management Group v Commission (T‑29/15, EU:T:2017:56), and of 2 February 2017, IMG v Commission (T‑381/15, EU:T:2017:57). By two appeals lodged on 11 April 2017 and registered, respectively, under case numbers C‑183/17 P and C‑184/17 P, the appellant sought to have those two judgments set aside.

21

By judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, ‘the judgment of 31 January 2019’, EU:C:2019:78), the Court of Justice set aside the judgments of the General Court referred to in the preceding paragraph, itself ruled on the actions for annulment of the decisions of 16 December 2014 and 8 May 2015, annulled those decisions and referred Case T‑381/15 back to the General Court for it to rule on the action in that case, in so far as that action sought compensation for the damage allegedly sustained by the appellant as a result of the adoption of the decision of 8 May 2015.

22

By letter of 6 May 2019, the Commission requested that the appellant, in the context of compliance with the judgment of 31 January 2019, produce certain documents in order for it to demonstrate that it did in fact fulfil the requirements to be able to work with the Commission using the indirect management method. When the appellant did not produce the documents requested, the Commission, by letter of 18 July 2019, repeated its request for the production of documents, stating that, in the event of a refusal on the appellant’s part, it would turn directly to the States which the appellant considered to be its members.

23

On 26 November 2019, the Commission asked the States which the appellant considered to be its members whether they considered the appellant to be an international organisation, whether they were members of that organisation, and whether they had signed an international or intergovernmental agreement establishing the appellant as an international organisation. Should their answer be in the affirmative, they were requested to send the Commission a certified copy of that agreement and proof that its signatories had full powers to sign it, or a copy of the instrument of ratification of that agreement. The Commission repeated that request to some of those States on 27 January, 11 March, 25 May and 14 October 2020.

24

After informing the appellant, by letter of 19 February 2021, that it intended to adopt a decision refusing to accord it the status of an international organisation, the Commission invited it to submit observations, which the appellant did on 5 and 30 March 2021.

25

On 8 June 2021, the Commission adopted the decision at issue.

26

By application lodged at the Registry of the General Court on 18 August 2021, the appellant brought an action seeking, in the first place, annulment of the decision at issue and, in the second place, an order that the Commission pay it, first, compensation in the amount of EUR 20000 for the damage which it claims to have sustained as a result of the unreasonable length of time involved in the procedure for the adoption of the decision at issue and, second, compensation in the amount of EUR 23651903 for the financial and non-material damage which it claims to have sustained as a result of the unlawful acts vitiating the decision at issue, which replaced the decisions of 16 December 2014 and 8 May 2015.

27

As a preliminary point, the General Court ruled, inter alia, on the admissibility of Annexes A.24 to the application and C.1 to the reply, which it declared inadmissible.

28

More specifically, as regards Annex A.24 to the application, the admissibility of which had been disputed by the Commission, the General Court found, in paragraphs 45 and 46 of the judgment under appeal, that that annex consisted of an opinion of the Commission’s Legal Service, the disclosure of which had not been authorised by that institution and which did not relate to a legislative procedure in respect of which greater openness was required. The General Court added that the appellant had not indicated any interest other than that of being able to rely on that legal opinion in the context of the dispute, and therefore its production did not appear to be guided by an overriding public interest.

29

It is apparent from paragraphs 58, 59, 92 and 190 of the judgment under appeal that, before the General Court, the appellant had put forward four pleas in law in support of its claim for annulment. According to the General Court, the first plea was divided into three parts, alleging, first, infringement of Article 266 TFEU and of the force of res judicata attaching to the judgment of 31 January 2019, second, infringement of the EU Financial Regulations and the Commission Guidelines of 7 January 2015 on the assessment of the status of international organisations and the possibility to assimilate non-profit organisations to international organisations, several errors of law, and breaches of various principles including, in particular, the principle of non-retroactivity and, third, breach of the principle of equal treatment. The second plea was also divided into three parts, alleging infringement of the obligation to state reasons, breach of the duty of diligence and breach of the obligation of impartiality. The third plea alleged breach of the principle of legal certainty. Last, the fourth plea was divided into three parts, alleging manifest errors of assessment and errors in law resulting from, in respect of the first part, the fact that the Commission did not correctly identify the appellant’s members, in respect of the second part, the fact that it refused to classify the act establishing the appellant as an international agreement establishing an international organisation and, in respect of the third part, the fact that it refused to recognise the appellant’s status as an international organisation notwithstanding the subsequent practice of its members and the recognition of that status by the European Union and some third countries.

30

The General Court examined, first, the first part of the second plea, then the first to fourth pleas and, last, the second and third parts of the second plea. It considered that those pleas, like the appellant’s claim for annulment, had to be rejected.

31

In particular, the fourth plea was examined in paragraphs 190 to 370 of the judgment under appeal. In that regard, the General Court, in the first place, set out, in paragraphs 190 to 213 of the judgment under appeal, certain preliminary considerations concerning the definition of the concept of ‘international organisation’ provided for by the EU Financial Regulations. It follows, in essence, that the General Court considered that the concepts of ‘international organisation’ and ‘international agreement’ referred to in the EU Financial Regulations had to be interpreted in the light of the relevant rules of international law, while being interpreted narrowly, in order to protect the financial interests of the European Union.

32

In the second place, in paragraphs 215 to 232 of the judgment under appeal, the General Court examined the first complaint in the first part of the fourth plea, alleging that the Commission made a manifest error of assessment in that it drew an artificial distinction between the appellant’s founding States, the contributing States and the States participating in the appellant’s bodies, namely the steering committee and the Government Support Group (‘GSG’). In that regard, in paragraphs 216 and 217 of the judgment under appeal, the General Court noted that it was not apparent from the statement of reasons for the decision at issue that the Commission had formally drawn such a distinction.

33

Nevertheless, in paragraphs 218 to 231 of that judgment, the General Court examined the scenario in which the decision at issue could be interpreted as drawing a distinction such as that alleged by the appellant. Following an analysis of the wording of the document of 25 November 1994 concerning the establishment of IMG-IBH (‘the resolution of 25 November 1994’), and of the appellant’s statute, the General Court found, in paragraph 230 of that judgment, that only those States and international organisations which had applied for admission to the appellant’s steering committee or standing committee, whose application had not given rise to objections from the members of that decision-making body, and which continued to sit on the committee on 16 December 2014 and, where appropriate, beyond that date, were to be regarded as being members of the appellant on the date on which the decision at issue took effect. On the basis of that finding, the General Court held, in paragraphs 231 and 232 of the judgment under appeal, that the appellant was not justified in criticising the Commission for not having considered certain States and certain international organisations to be its members if those States or organisations had not sat on its steering committee or standing committee since 16 December 2014 and that, therefore, the first complaint in the first part of the fourth plea had to be dismissed as unfounded.

34

In the third place, in paragraphs 233 to 248 of the judgment under appeal, the General Court examined the second complaint in the first part of the fourth plea, alleging a manifest error of assessment on the part of the Commission, vitiating the interpretation of the positions adopted by the Belgian and Austrian authorities.

35

First, as regards the Austrian authorities’ reply, it is apparent from paragraphs 235 to 239 of the judgment under appeal that the General Court found, in essence, that the Commission had not committed a manifest error of assessment in respect of that reply, since it had faithfully reproduced it in the decision at issue, while taking the view that it did not call into question the conclusion reached in that decision.

36

Second, as regards the Belgian authorities’ reply, it is apparent from paragraphs 241 and 242 of the judgment under appeal that the General Court considered that the Commission faithfully reproduced, in the decision at issue, the content of that reply. In addition, the General Court rejected the appellant’s argument that the Kingdom of Belgium had to be regarded as one of its members. Therefore, in paragraph 248 of the judgment under appeal, the General Court dismissed the second complaint in the first part of the fourth plea.

37

In the fourth place, in paragraphs 249 to 257 of the judgment under appeal, the General Court examined the third complaint in the first part of the fourth plea, alleging errors of law and a manifest error of assessment on the part of the Commission in refusing to recognise that the European Union had become a member of the appellant. The General Court rejected that complaint, first, on the ground, as is apparent from paragraphs 253 and 254 of the judgment under appeal, that the Commission had no longer sat on the appellant’s steering committee with effect from 20 May 2003 and that, consequently, the European Union could not be regarded as a member of the appellant during the effective period of the decision at issue. Second, in paragraph 255 of the judgment under appeal, the General Court found that the appellant had neither established nor even claimed that, on the date on which the decision at issue took effect, its members included another international organisation. Since all the complaints put forward in support of the first part of the appellant’s fourth plea had been dismissed, the General Court considered that that part had to be dismissed in its entirety.

38

In the fifth place, in paragraphs 260 to 303 of the judgment under appeal, the General Court examined the first complaint in the second part of the fourth plea, alleging errors of law in that the Commission refused to classify the resolution of 25 November 1994 as an international agreement.

39

In that regard, the General Court found, in paragraphs 273 and 274 of the judgment under appeal, that that resolution did contain at least one legally binding commitment for its signatories and that the Commission had vitiated the decision at issue by an error of law in adopting the position of the Republic of Austria and the Republic of Finland, according to which that resolution constituted a political declaration which was not legally binding.

40

In addition, in paragraph 289 of the judgment under appeal, the General Court held that the Commission had vitiated the decision at issue by an error of law in refusing to classify the resolution of 25 November 1994 as an international agreement on account of the absence of full powers of the participants in the meeting of the same day at which that resolution was adopted, since the signature of that resolution was subsequently confirmed by at least two States.

41

Furthermore, in paragraphs 295 and 299 of the judgment under appeal, the General Court found, in essence, that the Commission had not erred in law in asking the appellant’s Member States to specify whether they had signed the resolution of 25 November 1994 and, if necessary, to produce any instruments of signature or ratification of that resolution.

42

At the end of its examination of the first complaint in the second part of the fourth plea, the General Court held, in essence, in paragraphs 302 and 303 of the judgment under appeal, that the Commission’s errors of law referred to in paragraphs 39 and 40 of the present judgment were not, by themselves, such as to entail the annulment of the decision at issue. According to the General Court, it would still be necessary to determine whether the appellant had been founded by an international agreement the purpose of which was to establish it as an international organisation.

43

In the sixth place, in paragraphs 304 to 319 of the judgment under appeal, the General Court examined the second complaint in the second part of the fourth plea, alleging an error of interpretation as to the intention of the signatories to the resolution of 25 November 1994 to grant the appellant the status of an international organisation. Following an analysis of the wording, purpose and context of that resolution, the General Court concluded, in paragraph 319 of that judgment, that the Commission had not erred in finding that that resolution had neither the object nor the effect of conferring on the appellant the status of an international organisation. Accordingly, the General Court held that the second complaint in the second part of the appellant’s fourth plea had to be rejected as unfounded, as did, consequently, that part in its entirety.

44

In the seventh place, in paragraphs 321 to 347 of the judgment under appeal, the General Court examined the first complaint in the third part of the appellant’s fourth plea, alleging an error of law as regards the subsequent practice of the signatories to the resolution of 25 November 1994 demonstrating a sufficiently wide and clear recognition of the appellant’s status as an international organisation.

45

In that regard, the General Court held, in paragraph 329 of the judgment under appeal, that, in accordance with the judgment of the International Court of Justice of 31 March 2014, Whaling in the Antarctic (Australia v. Japan; New Zealand intervening), I.C.J. Reports 2014, p. 226), demonstrating that subsequent agreements or a subsequent practice of the signatories to the resolution of 25 November 1994 have altered the interpretation of the provisions of that resolution in order to confer on the appellant the status of an international organisation was subject to the condition that all the signatories to that resolution or, at least, all of the appellant’s members had approved such an amendment.

46

The General Court found, in paragraph 330 of the judgment under appeal, first, that the appellant’s statute adopted on 10 March 1995 (‘the initial statute’) conferred legal personality on it and provided that some of its staff would benefit from immunities and, second, that Article 1 of the appellant’s statute adopted in 2012 (‘the 2012 statute’) classified it as an international organisation. Nevertheless, in paragraph 331 of the judgment under appeal, the General Court found that the appellant had not established that those two statutes reflected the intention of all the signatories to the resolution of 25 November 1994 or, at least, of its members, to confer on it the status of an international organisation. The General Court set out the grounds for that finding in paragraphs 332 to 345 of the judgment under appeal. It therefore concluded, in paragraphs 346 and 347 of that judgment, that the Commission had not erred in law in finding that the practice subsequent to the adoption of the resolution of 25 November 1994, and then to the adoption of the appellant’s initial statute and 2012 statute, did not demonstrate a sufficiently wide and clear recognition of the appellant’s status as an international organisation and that, consequently, the first complaint in the third part of the fourth plea had to be dismissed as unfounded.

47

In the eighth place, in paragraphs 348 to 365 of the judgment under appeal, the General Court examined and rejected the second complaint in the third part of the appellant’s fourth plea, alleging errors of law in that the Commission failed to take account of the recognition of the appellant’s status as an international organisation by the European Union and certain States.

48

In that regard, the General Court, first, in paragraphs 349 to 359 of the judgment under appeal, examined and rejected the appellant’s argument that the conclusion of agreements between itself and the Commission under joint or indirect management necessarily entailed an obligation on the part of that institution to recognise its status as an international organisation.

49

Second, in paragraphs 360 to 365 of the judgment under appeal, the General Court examined and rejected the appellant’s argument alleging an error of law in that the Commission did not take into account the headquarters agreements concluded by the appellant. As is apparent from paragraph 364 of the judgment under appeal, the General Court considered that the fact that States which have not acceded to the agreement forming an organisation and which are not, or are no longer, members of it consider it to be an international organisation does not entail any obligation on the Commission to recognise that organisation as having the status of an international organisation.

50

In the ninth place, in paragraphs 366 to 370 of the judgment under appeal, the General Court examined and rejected the third complaint in the third part of the appellant’s fourth plea, alleging an error of law in that the Commission had failed to take account of the fact that the appellant’s members had not dissolved it and the fact that it complied with the principle of speciality. The General Court acknowledged, in paragraph 367 of that judgment, that the signatories to the resolution of 25 November 1994 which became members of the appellant intended, when the appellant’s 2008 statute and 2012 statute were adopted, to provide it with a degree of stability and to entrust it with specialised tasks in the field of reconstruction and development beyond the territory of Bosnia and Herzegovina. It nevertheless held, in paragraphs 368 and 369 of that judgment, that, in so far as neither the signatories to the resolution of 25 November 1994 nor the appellant’s members had demonstrated an intention unanimously or, at least by majority, to confer on it the status of an international organisation, the fact that the appellant had not been dissolved had no bearing on the lawfulness of the decision at issue. The General Court therefore dismissed the third complaint in the third part of the fourth plea and, consequently, that part and that plea in their entirety.

51

The appellant’s claim for compensation was examined in paragraphs 418 to 447 of the judgment under appeal. In that regard, the General Court found, in paragraph 418 of that judgment, that the appellant put forward two heads of damage in respect of which it claimed, respectively, compensation in the amount of EUR 20000 on account of the allegedly unreasonable length of time involved in the procedure for the adoption of the decision at issue and compensation in the amount of EUR 23651903 for the financial and non-material damage which it attributed to the unlawful acts vitiating the decision at issue, which had replaced the decisions of 16 December 2014 and 8 May 2015.

52

The first head of damage, which was examined in paragraphs 429 to 442 of the judgment under appeal, was rejected on the grounds, as set out in paragraphs 440 to 442 of that judgment, that the time taken by the Commission to prepare and adopt the decision at issue was not unreasonable and that the appellant had not established the existence of material or non-material damage resulting from the infringement alleged.

53

The second head of damage, which was examined in paragraphs 443 to 447 of the judgment under appeal, was rejected on the grounds, as set out in paragraphs 444 and 446 of that judgment, that the claims seeking annulment of the decision at issue had been dismissed, and therefore the condition for the European Union to incur non-contractual liability, relating to the existence of a breach of a rule of law intended to confer rights on individuals, had not been satisfied and that, moreover, the appellant had not relied, in support of that second head of damage, on heads of unlawfulness which differed from those which it set out in support of its claims for annulment.

54

Consequently, the General Court dismissed the appellant’s action in its entirety.

55

The appellant claims that the Court should set aside the judgment under appeal, rule itself on its action, uphold that action and order the Commission to pay the costs of both the proceedings before the General Court and those before the Court of Justice.

56

The Commission contends that the Court should dismiss the appeal and order the appellant to pay the costs.

57

The appellant relies on seven grounds in support of its appeal. The first ground of appeal alleges infringement of Article 266 TFEU and of the General Court’s obligation to state reasons for its judgments, breach of the prohibition on ruling ultra petita and of the principle of non-retroactivity and distortion of the evidence in the file. The second ground of appeal alleges breach of the principle of res judicata and of the obligation to state reasons. The third ground of appeal alleges breach of the principle of equal treatment and of the rights of the defence. The fourth ground of appeal alleges breach of the principle of legal certainty and of the obligation to state reasons. The fifth ground of appeal alleges an error of law in that the General Court rejected the fourth plea in the appellant’s action. The sixth ground of appeal alleges breach of the principle of good administration and of the duty of diligence, and infringement of Article 41 of the Charter of Fundamental Rights of the European Union. Last, the seventh ground of appeal alleges breach of the principle audi alteram partem and of the principle of equality of arms.

58

By the seventh ground of appeal, which it is appropriate to examine first, the appellant challenges the grounds that were set out in paragraphs 38 to 47 of the judgment under appeal to justify the General Court’s decision to declare Annex A.24 to the application lodged before the General Court inadmissible.

59

In the first place, the appellant claims that it was the General Court itself which, at the hearing before it, took the initiative to ask the Commission whether it objected to that annex being retained in the case file. In so doing, the General Court altered the subject matter of the dispute and ruled ultra petita.

60

In the second place, the appellant submits that the circumstances of the present case are different from those of the case which gave rise to the judgment of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraphs 54 to 56), on which the General Court relied. The appellant submits that the opinion of the Commission’s Legal Service in Annex A.24 to the application before the General Court is in the public domain following a leak in the press. It follows, according to the appellant, that that opinion, having regard to its nature and the conditions of its disclosure, did not undermine either confidentiality or an overriding public interest. Moreover, that opinion is a decisive document, relating exclusively to the case before the General Court.

61

In the third place, the appellant relies on ‘the principle of equality of arms in a fair trial’, which means, in its view, that each party must be afforded a reasonable opportunity to present its case, including evidence, under conditions that do not place it at a ‘substantial disadvantage’ vis-à-vis its opponent. The appellant therefore claims that the General Court should have retained Annex A.24 to the application in the case file and erred in law in declaring it inadmissible.

62

The Commission contends that the seventh ground of appeal must be rejected.

63

In the first place, as regards the appellant’s argument that the General Court ruled ultra petita in deciding to remove Annex A.24 to the application from the file, it is apparent from paragraph 38 of the judgment under appeal that, at the hearing before the General Court, the Commission had raised the inadmissibility of that annex, in that it included an opinion of its Legal Service.

64

It follows that the General Court decided to remove that annex from the case file at the request of the Commission and, accordingly, it cannot, in any event, be criticised for ruling ultra petita. It is irrelevant, in that regard, that the Commission raised the inadmissibility of that annex in response to a question from the General Court.

65

In the second place, contrary to what is, in essence, claimed by the appellant, the General Court, in paragraphs 45 and 46 of the judgment under appeal, correctly applied the case-law stemming from the judgment of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraphs 54 to 56), which the General Court itself referred to in paragraphs 42 to 44 of the judgment under appeal.

66

As the Court has pointed out, in principle, to allow an applicant to put before the Court a legal opinion from an institution the disclosure of which has not been authorised by that institution would be contrary to the requirements of a fair hearing and would be tantamount to circumventing the procedure for requesting access to such a document introduced by Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) (see, to that effect, judgment of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 54 and the case-law cited).

67

It is true that the Court has accepted that account should be taken of the principle of openness, laid down in the second paragraph of Article 1 and Article 10(3) TEU and Article 15(1) and Article 298(1) TFEU, which guarantees, inter alia, that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. By allowing divergences between various points of view to be openly debated, it also contributes to increasing those citizens’ confidence in those institutions (judgment of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 55 and the case-law cited).

68

However, the Court has held that it is only exceptionally that the principle of openness will be capable of justifying, in judicial proceedings, the disclosure of a document of an institution that has not been released to the public and which contains a legal opinion. Thus, the retention, in the file of a particular case, of a document containing a legal opinion from an institution is not justified by any overriding public interest where, first, that legal opinion does not relate to a legislative procedure in respect of which increased openness is required and, second, the interest in the document’s retention consists, for the party which produced it, only in the ability to rely on that legal opinion in the context of a dispute. In such circumstances, the production of such a legal opinion appears to be guided by the applicant’s own interest in supporting its arguments and not by any overriding public interest, such as the interest in making public the procedure which resulted in the contested measure (see, to that effect, judgment of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 56 and the case-law cited).

69

In the present case, first, in paragraph 45 of the judgment under appeal, the General Court found, without being contradicted by the appellant, that the legal opinion in Annex A.24 to the application did not relate to a legislative procedure in respect of which increased openness is required.

70

Second, in paragraph 46 of that judgment, the General Court noted that the appellant had not indicated any interest other than that of being able to rely on the legal opinion in the context of the dispute before the General Court, and therefore its production did not appear to be guided by an overriding public interest but by the appellant’s own interests.

71

Those circumstances, as found by the General Court, were not such as to justify, in accordance with the case-law cited in paragraphs 66 to 68 of the present judgment, the retention of Annex A.24 to the application in the case file.

72

In the third place, as regards the alleged breach of the principle of equality of arms, it should be noted that the appellant has not specified how the General Court breached that principle, especially since it is not apparent from the judgment under appeal – and it is not alleged by the appellant – that the General Court allowed the Commission to rely on confidential documents which should have been removed from the case file.

73

In those circumstances, it must be held that the General Court did not err in law in so far as it declared Annex A.24 to the application inadmissible, and therefore the seventh ground of appeal must be rejected as unfounded.

74

By the fifth ground of appeal, which it is appropriate to examine second, the appellant challenges the grounds that were set out in paragraphs 197 to 370 of the judgment under appeal to justify the rejection of the fourth plea in its action. That ground of appeal is made up of four parts.

75

By the first part of the fifth ground of appeal, the appellant claims that the definition of the concept of ‘international organisation’ on which the General Court relied is incorrect. It submits that the case-law of the International Court of Justice, cited in paragraphs 206 and 208 of the judgment under appeal, is not relevant and that, in any event, the General Court misread it.

76

By the second part of the fifth ground of appeal, the appellant challenges paragraphs 218 to 232 and 235 to 248 of the judgment under appeal.

77

As regards paragraphs 218 to 232 of that judgment, the appellant submits that the General Court did not correctly grasp the scope of the first complaint in the first part of the fourth plea in its action, alleging that the decision at issue did not draw a clear distinction between the appellant’s founding States and its contributing States. It submits, in that regard, that the States which signed the resolution of 25 November 1994 are its members and constitute, according to the initial statute, the GSG. Accordingly, the General Court erred in rejecting, in paragraph 222 of the judgment under appeal, the argument that the mere fact that a State or an international organisation was a member of the GSG and, by signing the resolution of 25 November 1994, participated in the appellant’s foundation makes that State or that organisation one of the appellant’s members.

78

As regards paragraphs 235 to 248 of the judgment under appeal, the appellant submits, first, that they relate to a complaint put forward in the context not of the fourth plea but of the second plea in its action, alleging breach of the principle of good administration and of the duty of diligence.

79

Second, it complains that the General Court endorsed, in paragraphs 235 to 239 of the judgment under appeal, the Commission’s assessment of the Austrian authorities’ reply, without taking account of the fact that the resolution of 25 November 1994 constituted an international agreement, which the General Court itself acknowledged.

80

Third, the appellant submits that the General Court erred in law, in so far as it held, in paragraph 246 of the judgment under appeal, that the Kingdom of Belgium’s participation in the creation of the appellant and in the meetings of its bodies until 2013 was irrelevant, since that State’s status as a member of the appellant could be assessed only as of 16 December 2014. According to the appellant, the objective criteria to be taken into consideration in classifying an entity as an ‘international organisation’ do not include the fact that a State considers itself to be a member of that organisation. The appellant adds that the Kingdom of Belgium itself classified the appellant as an international organisation established by an international agreement.

81

By the third part, the appellant submits, in the first place, that the General Court erred in law in that it assessed separately, in paragraphs 258, 260 and 321 to 347 of the judgment under appeal, the resolution of 25 November 1994 and the initial statute, even though they constitute a ‘whole treaty system’. The appellant adds that the 2012 statute is also relevant, as evidence of subsequent practice on the part of the signatories to the resolution of 25 November 1994 attesting to a sufficiently wide and clear recognition of its status as an international organisation, contrary to what the General Court held in paragraphs 322 to 346 of the judgment under appeal.

82

It follows, according to the appellant, that the grounds of the judgment under appeal are vitiated by an error of law, in so far as the General Court held, first, that all the parties to an international agreement must have contributed to a subsequent practice in order for that practice to be taken into account for the purpose of interpreting that agreement, second, that all of the appellant’s members should have approved an amendment to the interpretation of the provisions of the resolution of 25 November 1994 as a result of a subsequent practice demonstrating a sufficiently wide and clear recognition of the appellant’s status as an international organisation and, third, that the appellant had to establish that the initial statute or the 2012 statute reflected the intention of all the signatories to that resolution.

83

In the second place, the appellant submits that the grounds set out in paragraphs 285 and 286 of the judgment under appeal, relating to the resolution of 25 November 1994, are the result of an incorrect assessment of the circumstances in which that resolution was adopted. As is apparent from the documents produced before the General Court, that resolution was approved and signed by the representatives of the States which participated in the meeting of the same day and the representatives of the Commission.

84

In the third place, the appellant submits that paragraphs 291 to 300 of the judgment under appeal are vitiated by an error of law, in that the General Court failed to take account of the fact that, in accordance with the Vienna Convention, States may express their intention to be bound by an international agreement in various ways. According to the appellant, the resolution of 25 November 1994 was an ‘agreement in a simplified form’, which is a form of agreement recognised in international law.

85

In the fourth place, the appellant submits that the grounds set out in paragraphs 306 to 319 of the judgment under appeal are vitiated by an error of law, in that the General Court, taking an excessively formalistic approach, held that the resolution of 25 November 1994 did not establish the appellant as an international organisation.

86

The appellant observes, in that regard, that it is apparent from the minutes of the meeting at which that resolution was adopted that it is an ‘independent entity’. In addition, Article 19 of the initial statute provides that the appellant could enjoy immunities in the performance of its activities, whereas the 2012 statute expressly recognised the appellant’s status as an international organisation.

87

Furthermore, as is apparent from paragraph 310 of the judgment under appeal, the resolution of 25 November 1994 provides, in point 3 thereof, that the appellant’s steering committee was to review every six months the need to continue the appellant’s tasks, which contradicts the finding that the signatories to the resolution of 25 November 1994 had not endowed the appellant with the best possible guarantees of effectiveness for the performance of its tasks. That resolution also attributed to the appellant ‘functional powers’, under the control of its members, which means that the appellant complied with the principle of speciality, as the General Court itself acknowledged in paragraph 369 of the judgment under appeal.

88

By the fourth part, the appellant challenges paragraphs 321 to 370 of the judgment under appeal. In the first place, it submits that, contrary to what the General Court held in paragraph 328 of the judgment under appeal, it is justified in relying on Article 32 of the Vienna Convention, since the Commission recognised it for years as an international organisation and made use of its services, before suddenly considering that it was no longer such an organisation.

89

In the second place, it complains that the General Court distorted the evidence in the file, in so far as it stated, in paragraph 335 of the judgment under appeal, that, at the hearing before the General Court, the appellant had maintained that the 2012 statute had been signed by the French Republic, the Italian Republic, the Republic of Finland, the Kingdom of Sweden and the Kingdom of Norway. The appellant claims that it cannot possibly have made such a statement, since it is clear from the case file before the Court that the 2012 statute had been signed by the Chairman of the appellant’s steering committee and unanimously approved by all the participants in the meeting of that committee on 27 November 2012.

90

In the third place, the appellant submits that, in paragraphs 338 to 341 of the judgment under appeal, the General Court referred to documents relating to the report drawn up by OLAF which the Commission had expressly decided to disregard for the purpose of adopting the decision at issue. The General Court thus erred in law by relying on grounds which were not set out in the decision at issue.

91

In the fourth place, the appellant claims that the General Court distorted the Kingdom of Sweden’s letter of 2 July 2020 by stating, in paragraph 339 of the judgment under appeal, that that State considered that the appellant was not an international organisation. According to the appellant, it is apparent from that letter that the Kingdom of Sweden had relied on the fact that it had not ratified the resolution of 25 November 1994, whereas such ratification is not necessary for the establishment of an international organisation.

92

In the fifth place, the appellant submits that the General Court also breached the obligation to state reasons by failing to explain, in paragraph 340 of the judgment under appeal, why the material in the case file on which it had relied, relating to the Italian Republic and the Kingdom of Norway, was not useful.

93

In the sixth place, the appellant complains that the General Court erred in law in paragraph 351 of the judgment under appeal in so far as it held that the appellant could not rely on Articles 27 and 46 of the Vienna Convention, the provisions of which are not directly applicable to the European Union. According to the appellant, that convention is applicable to treaties constituting international organisations and those articles reflect international custom and practice.

94

It adds that the fact that the Commission had not sat on the appellant’s steering committee since 20 May 2003 is irrelevant, since that institution did not formally express its intention not to be a member of the appellant and, moreover, continued to cooperate with it under the EU Financial Regulations. Accordingly, the General Court erred in law in holding, in paragraph 356 of the judgment under appeal, that the Commission was, on the date on which the decision at issue took effect, relieved of any obligation to recognise the appellant’s status as an international organisation.

95

In addition, the appellant complains that the General Court based its reasoning, in paragraphs 362 to 365 of the judgment under appeal, on a misunderstanding of the concept of ‘recognition’ in international law and confused it with the concept of ‘creation’ of an international organisation. The latter is the result of a convergence of intent of the States. By contrast, recognition makes the existence of a subject of law, in the present case an international organisation, enforceable against its author. Accordingly, the appellant submits that the fact that the Commission had concluded several contracts with it constituted an act of recognition, by that institution, of its status as an international organisation.

96

The appellant considers, therefore, that an objective analysis of the entity created by the resolution of 25 November 1994 and by the initial statute which supplemented it shows that an international organisation had been established and that that organisation could be dissolved only by a decision adopted by its own bodies or by the members which created it.

97

In response to the first part, the Commission contends that the General Court did not err in law with regard to the definition of the concept of ‘international organisation’. The case-law cited in paragraphs 206 and 208 of the judgment under appeal is relevant in order to be able to distinguish between, on the one hand, a non-binding international instrument and, on the other, an international agreement, within the meaning of the Vienna Convention, and between, on the one hand, an international organisation and, on the other, another organisation.

98

As regards the second part, the Commission submits, first, that the grounds set out in paragraphs 215 to 217 of the judgment under appeal are sufficient to justify the rejection of the first complaint in the first part of the fourth plea and are not vitiated by any error of law, so that the appellant’s line of argument directed against paragraphs 218 to 232 of the judgment under appeal must be rejected as ineffective.

99

Second, as regards the appellant’s arguments concerning paragraphs 235 to 239 of the judgment under appeal, the Commission submits that the General Court merely acknowledged, in paragraph 238 of the judgment under appeal, that the decision at issue faithfully reproduced the Republic of Austria’s reply to the questions sent to it by the Commission.

100

Third, as regards the criticisms set out by the appellant with regard to the General Court’s assessment of the reply issued by the Kingdom of Belgium to the questions sent by the Commission, the Commission states that it does not consider that the signing of the resolution of 25 November 1994 was sufficient to transform a State into a permanent member of the appellant, since that resolution did not entail any obligation to contribute to the appellant’s budget or operations. Accordingly, the Kingdom of Belgium could legitimately regard itself as no longer being a member of the appellant. It follows, according to the Commission, that paragraph 246 of the judgment under appeal is not vitiated by any error of law.

101

As regards the third part, the Commission responds to the appellant that the General Court examined whether the appellant’s statutes conferred on it the status of an international organisation, on the basis of relevant case-law. As regards the appellant’s argument concerning paragraphs 285 and 286 of the judgment under appeal, the Commission observes that the General Court confined itself, in those paragraphs, to finding that the representatives of the States concerned did not benefit from a waiver of full powers for the purpose of expressing the consent of their State to the adoption of the resolution of 25 November 1994. Despite that finding, the General Court held that that resolution constitutes an international agreement, so that the appellant’s argument is ineffective. The Commission adds that, although it did not lodge a cross-appeal against the judgment under appeal in order to challenge that assessment by the General Court, it remains ‘sceptical’ as to the reasons underlying it, as set out in paragraphs 276 to 289 of the judgment under appeal.

102

As regards the appellant’s criticisms of the grounds set out in paragraphs 291 to 300 of the judgment under appeal, the Commission observes that the appellant does not specify which procedural or substantive rule was infringed by the General Court. The Commission recalls that the General Court correctly considered that it was entitled to question the States which were allegedly members of the appellant as to whether they had signed the resolution of25 November 1994 and to invite them to produce any instruments of signature or ratification. In any event, the General Court considered that that resolution constitutes an international agreement, and therefore the appellant’s arguments directed against that part of the judgment under appeal are ineffective.

103

Last, as regards the appellant’s line of argument relating to paragraphs 306 to 319 of the judgment under appeal, the Commission states that the condition for recognition of an entity as an international organisation, relating to the provision of all the resources necessary for its operation and of the best guarantees of stability, continuity and effectiveness for the performance of its tasks, is indeed apparent from the case-law cited in paragraph 212 of the judgment under appeal. The Commission adds that it is clear from the wording of the resolution of 25 November 1994, in particular from points 4 and 5 thereof, that participation in the appellant was optional and that it was initially a temporary mechanism, to be renewed every six months.

104

In response to the fourth part, the Commission states, in the first place, that, in paragraph 335 of the judgment under appeal, the General Court examined whether the initial statute had been adopted by all the parties which adopted the resolution of 25 November 1994 or, at least, by all of the appellant’s members.

105

In the second place, the Commission submits that paragraphs 338 to 341 of the judgment under appeal consider the hypothetical scenario in which the appellant had only five members, which adopted the 2012 statute. The appellant itself contradicts that scenario in its appeal. The Commission adds that, in the light of the replies of various States, summarised in paragraph 340 of the judgment under appeal, the General Court was correct to hold, in paragraph 341 of that judgment, that it is not apparent from the documents before it that the clause in the 2012 statute, according to which the appellant is an international organisation, reflects the clear and unequivocal intention of those States to confer such status on the appellant.

106

In the third place, as regards the appellant’s arguments concerning paragraphs 339, 340 and 351 of the judgment under appeal, the Commission submits that the General Court set out to the requisite legal standard the reasons why it rejected the appellant’s arguments and that it did not err in law.

107

In the fourth and last place, as regards the appellant’s criticisms of paragraphs 362 to 365 of the judgment under appeal, the Commission submits that it cannot be accepted that, where the parties to an international agreement did not intend to establish an international organisation through that agreement, recognition of the status of the entity created by that agreement as an international organisation may result from the fact that it has been recognised as such an organisation by third parties. The Commission therefore maintains that the General Court did not err in law in rejecting the appellant’s arguments based on its alleged recognition as an international organisation.

108

It is appropriate to examine together the parts of the fifth ground of appeal which relate to paragraphs 190 to 370 of the judgment under appeal. In those paragraphs, the General Court examined and rejected the appellant’s fourth plea, alleging errors of law and manifest errors of assessment, in that the Commission had not correctly identified the appellant’s members, had refused to classify the act establishing the appellant as an international agreement establishing an international organisation, and had not taken into account the subsequent practice of the appellant’s members and the recognition of the appellant as an international organisation by the European Union and by certain third States.

109

As the Court of Justice noted in paragraph 92 of the judgment of 31 January 2019, the concept of ‘international organisation’, referred to in Articles 53 and 53d of the 2002 Financial Regulation and Article 58 of the 2012 Financial Regulation, has been defined, in the same terms, in Article 43(2) of the 2002 Financial Implementing Regulation, and then in Article 43(1) of the 2012 Delegated Financial Regulation. Under the two latter provisions, that concept includes, inter alia, ‘international public-sector organisations set up by intergovernmental agreements, and specialised agencies set up by such organisations’.

110

It is in the light of that definition that the General Court was required to review the legality of the decision at issue (see, to that effect, judgment of 31 January 2019, paragraph 93).

111

It is apparent from paragraphs 197 to 199 of the judgment under appeal that the General Court was aware that it was required to rely on that definition in order to determine whether the Commission had been correct to find, in the decision at issue, that the appellant was not an international organisation.

112

Nevertheless, it must be held, in the first place, that the General Court erred in law in holding, in paragraph 200 of the judgment under appeal, that the concept of ‘international organisation’ must be interpreted narrowly, for the purpose of applying the EU Financial Regulations.

113

As the Advocate General observed, in essence, in point 72 of his Opinion, the concept of ‘international organisation’ must be interpreted in the same way irrespective of the context in which it is used. To accept otherwise would give rise to legal uncertainty, in so far as the same entity might, depending on the context, be recognised as an international organisation in some cases and denied that status in others.

114

In the second place, it is apparent from paragraphs 274, 289 and 301 of the judgment under appeal that the General Court considered that the resolution of 25 November 1994 constituted an international agreement and that, by finding, in the decision at issue, that that was not the case, the Commission had vitiated that decision by an error of law. Although the Commission states that it is ‘sceptical’ of that finding of the General Court, it has not put forward any specific argument capable of calling it into question, nor has it lodged a cross-appeal to challenge that part of the judgment under appeal.

115

In those circumstances, the appellant’s arguments directed against paragraphs 259 to 300 of the judgment under appeal must be rejected as ineffective. The reasoning set out in that part of the judgment under appeal led the General Court to find, in paragraphs 274, 289 and 301 of that judgment, that, as the appellant claimed, the decision at issue was vitiated by an error of law, in that the Commission had considered that the resolution of 25 November 1994 was not an international agreement. Therefore, the errors of law relied on by the appellant, which allegedly vitiate that part of the judgment under appeal, even if they were established, did not prevent the General Court from reaching an outcome favourable to the appellant.

116

In the third place, it is necessary to examine the complaint based on the ‘excessively formalistic’ approach in the assessment of the wording of the resolution of 25 November 1994, by which the appellant complains, in essence, that the General Court made an error of law consisting in the incorrect legal characterisation of the object and effects of that resolution.

117

In that regard, it is apparent from paragraph 305 of the judgment under appeal that the General Court held, without erring in law, that, being an international agreement, that resolution was, in accordance with the rules of customary international law reflected by Article 31 of the Vienna Convention, which, as such, are binding on the EU institutions and are part of the EU legal order (see, to that effect, judgment of 27 February 2018, Western Sahara Campaign UK, C‑266/16, EU:C:2018:118, paragraph 58 and the case-law cited), to be interpreted in good faith, in accordance with the ordinary meaning to be given to the terms of that resolution in their context and in the light of its object and purpose.

118

In paragraphs 306 to 312 of the judgment under appeal, the General Court made a series of findings concerning the terms of the resolution of 25 November 1994 which, in its view, justified the conclusion that the authors of that resolution did not intend to establish an international organisation when they created the appellant.

119

In particular, in paragraph 306 of the judgment under appeal, the General Court found that that resolution did not classify the appellant as an international organisation or define its legal status.

120

However, the mere fact that the resolution of 25 November 1994 did not classify the appellant as an international organisation is not sufficient to conclude that the authors of that resolution did not intend to create the appellant as an international organisation, especially since, as the General Court itself noted, that resolution did not, in any event, define the appellant’s legal status.

121

As the Advocate General observed, in essence, in points 101 and 102 of his Opinion, it is not essential that the constituent instrument of an international organisation expressly provides that it has been established as such.

122

For the same reasons, the fact, referred to by the General Court in paragraph 307 of the judgment under appeal, that the resolution of 25 November 1994 does not contain a clause conferring legal personality on the appellant is not sufficient to conclude that the authors of that resolution did not intend to establish the appellant as an international organisation.

123

In addition, the General Court noted, in paragraph 308 of the judgment under appeal, that the resolution of 25 November 1994 also had not provided that the appellant could enjoy immunities in the performance of its activities, ‘whereas, in accordance with the case-law cited in paragraphs 209 and 210 [of the judgment under appeal], international organisations enjoy, in the performance of their tasks, immunities which are provided for in their founding treaties’.

124

However, it is sufficient to note that it is not apparent from the case-law of international courts, cited in paragraph 209 of the judgment under appeal, or from the judgments of 3 September 2020, Supreme Site Services and Others (C‑186/19, EU:C:2020:638, paragraph 61), and of 17 December 2020, Commission v Slovenia (ECB Archives) (C‑316/19, EU:C:2020:1030, paragraph 73), cited in paragraph 210 of that judgment, that, in order for an international agreement to be regarded as establishing an international organisation, that agreement must necessarily confer immunities on the entity which it creates.

125

Furthermore, in paragraph 309 of the judgment under appeal, the General Court held that it was apparent from the wording of the resolution of 25 November 1994 that its signatories did not intend to establish ‘an organisation endowed with all the resources necessary for its operation and the best possible guarantees of stability, continuity and effectiveness for the performance of its tasks’, but an ‘optional mechanism available to the parties which each may use or not, as it pleases’.

126

In that regard, concerning, first, the stability and continuity of the appellant’s tasks, the General Court referred, in paragraph 310 of the judgment under appeal, to point 3 of the resolution of 25 November 1994, from which it is apparent that the appellant’s steering committee was to review every six months the need to continue the appellant’s tasks, whereas, in accordance with point 5 of that resolution, the States Parties to that resolution had to decide either to integrate the appellant into the overall framework for the reconstruction of Bosnia and Herzegovina or to phase out its activities.

127

However, contrary to what the General Court appears to have inferred from those points of the resolution of 25 November 1994, they instead attest to a degree of stability provided for in respect of the appellant, in the sense that, so long as the appellant’s steering committee or the States Parties to that resolution had not decided to phase out the appellant’s activities or to integrate it into another framework, the appellant would continue to exist.

128

Moreover, it should be noted that there is nothing to prevent the provisions of the constituent instrument of an international organisation from providing that that organisation will continue to exist only for a certain period or that, in certain situations, it will be dissolved, without such provisions being capable of preventing the entity concerned from being recognised as an international organisation.

129

Second, as regards the effectiveness of the tasks entrusted to the appellant, the General Court noted, in paragraph 311 of the judgment under appeal, that, although point 3 of the resolution of 25 November 1994 referred to the regular payment of contributions to the appellant by the parties to that resolution, those contributions were not compulsory but optional.

130

However, that fact cannot be taken to indicate a lack of intention on the part of the authors of that resolution to confer on the appellant the status of an international organisation, since, as the General Court itself found, it was envisaged that the contributions to the appellant, although optional, would be regular. It follows that the authors of the resolution of 25 November 1994 expected that the appellant would have at its disposal, through such optional contributions, the financial resources necessary for its operation.

131

Third and last, the General Court referred, in paragraph 312 of the judgment under appeal, to the fact that the resolution of 25 November 1994 had not provided for the transfer of mandatory powers by the States and organisations party to that resolution to the appellant and that those States and organisations remained free to accede to the appellant, to depart from it unilaterally and to put other channels of communication in its place.

132

However, first, the possibility, for the members of an entity established by an international agreement, of deciding to cease being members of that entity is not irreconcilable with the status of that entity as an international organisation.

133

Second, it is apparent from paragraph 315 of the judgment under appeal that the resolution of 25 November 1994 included an annex, entitled ‘Terms of reference of IMG-IBH’, which listed the tasks entrusted to the appellant, namely, in the territory of Bosnia and Herzegovina and in the fields of energy, public services, shelter and housing, gathering information, assessing the basic needs of the population, determining the priority sectors requiring prompt international assistance, identifying and elaborating programmes or projects which may be funded by the international community and assisting States and international institutions with a view to funding programmes or projects.

134

It is thus apparent from that document that the parties to the meeting of 25 November 1994 at which that resolution was adopted did indeed confer on the appellant certain powers, in particular those enabling it to determine the sectors requiring prompt international assistance and to elaborate programmes or projects which may be funded by the international community.

135

Moreover, the General Court failed to take into consideration the fact that, as is apparent from the summary of the terms of the resolution of 25 November 1994 set out in paragraphs 266 to 270 of the judgment under appeal, the signatories to that resolution agreed to formalise, as of that date, the establishment of the appellant, appointed its General Manager and established the appellant’s steering committee, which they empowered, inter alia, to adopt the appellant’s budget and decide on its staffing requirements.

136

The fact that it was provided that the appellant would have not only a General Manager, but also its own budget and its own staff, as well as the powers referred to in paragraph 134 of the present judgment, is liable to call into question the finding that the appellant was intended as a mere ‘optional mechanism available to the parties which each may use or not, as it pleases’, as the General Court stated in paragraph 309 of the judgment under appeal.

137

The expression ‘optional mechanism’ refers rather to a non-autonomous structure, managed by one or more States or by one or more international organisations, which provide the resources, including staff, necessary for its operation.

138

It follows from the considerations set out in paragraphs 117 to 137 of the present judgment that, in so far as it held, in paragraph 313 of the judgment under appeal, that the interpretation of the wording and purpose of the resolution of 25 November 1994 justified the conclusion that the authors of that resolution did not intend to establish an international organisation when they founded the appellant, the General Court made an incorrect legal classification of the object and effects of that resolution and, accordingly, erred in law.

139

That is not called into question by the General Court’s finding, in paragraph 313 of the judgment under appeal, that its interpretation of the wording and purpose of the resolution of 25 November 1994 is supported by the context in which that resolution had been adopted.

140

As part of the context of the resolution of 25 November 1994, the General Court took into consideration, first, the minutes of the meeting of the same day at which that resolution was adopted, from which it is apparent, according to paragraph 314 of the judgment under appeal, that a number of participants had expressed reservations about an initiative which would have led to the establishment of a new institutionalised body and had insisted on the temporary nature of the activity of the appellant, which none of them had described as an international organisation.

141

Although the General Court did not err in law in taking those minutes into consideration, it must be observed that the reservations of certain participants in that meeting as to the establishment of a new international organisation are not sufficient, in themselves, to support the conclusion that the appellant was not established as an international organisation at that meeting. It cannot be ruled out that the fact that the resolution of 25 November 1994 provided for a review every six months of the need to continue the appellant’s tasks, a review which could, as the case may be, lead to the appellant being dissolved or reintegrated into another structure, might have allayed the reservations of certain participants at that meeting and convinced those participants to consent to the establishment of the appellant as an international organisation.

142

Second, in paragraphs 315 and 316 of the judgment under appeal, the General Court considered the appellant’s terms of reference, referred to in paragraph 133 of the present judgment, observing that that document did not determine the legal status of the appellant or confer on it the power to conclude international agreements.

143

It should be noted that that document, being annexed to the resolution of 25 November 1994, formed an integral part of that resolution and was not merely part of its context. In any event, given that the purpose of that document was not to define the legal status of the appellant but to set out the tasks entrusted to it, the fact that it did not determine the legal status of the appellant is irrelevant.

144

Third, in paragraph 317 of the judgment under appeal, the General Court referred to an attestation by the coordinator of the special operation of the United Nations High Commissioner for Refugees (UNHCR) in the former Yugoslavia, who had chaired the meeting of 25 November 1994 during which that resolution was adopted. The General Court found that that attestation merely referred to the formal creation of the appellant at that meeting and did not specify whether that initiative was intended to give the appellant legal personality and, where appropriate, confer on it the status of an international organisation.

145

However, since that attestation was silent on the precise legal status of the appellant, it could not support the finding that the participants in the resolution of 25 November 1994 did not intend to establish the appellant as an international organisation.

146

Fourth and last, in paragraph 318 of the judgment under appeal, the General Court referred to the invitation to that meeting, from which it is apparent, according to the General Court, that the purpose of that meeting was to examine the restructuring of the appellant’s original entity and its future status, and not to create an international organisation.

147

It is sufficient to note, in that regard, that the fact that the purpose of that meeting was presented as being, inter alia, the appellant’s ‘future status’ in no way precludes the participants in that meeting from deciding, at that meeting, to establish the appellant as an international organisation.

148

In the light of the considerations set out in paragraphs 139 to 147 of the present judgment, it follows that, of the items of evidence to which the General Court referred regarding the context of the resolution of 25 November 1994, only one – namely the reservations expressed by certain participants in the meeting of the same day, at which that resolution was adopted, as to the prospect of creating a new international organisation – could be relied on in support of interpreting the wording of that resolution as meaning that it did not establish the appellant as an international organisation. However, for the reasons set out in paragraph 141 of the present judgment, that item of evidence could not be decisive.

149

In the fourth place, it is necessary to examine the appellant’s arguments relating to the initial statute.

150

The General Court assessed that statute in paragraphs 330 to 333 of the judgment under appeal, in the light of Article 31(3)(b) of the Vienna Convention, as an item of evidence capable of demonstrating the practice followed in the application of the resolution of 25 November 1994, by which the agreement of the authors of that resolution as to its interpretation could be established.

151

Following that assessment, the General Court noted, in paragraph 334 of the judgment under appeal, that, having regard to the positions taken by the UNHCR and the Republic of Finland when the initial statute was adopted, referred to in paragraphs 332 and 333 of that judgment, it was not clear from the circumstances in which that statute had been adopted that it reflected the intention of all the authors of the resolution of 25 November 1994, or of the members of the appellant, to confer on it the status of an international organisation.

152

It is apparent from paragraph 333 of the judgment under appeal that the initial statute was adopted not by all the States and international organisations which adopted the resolution of 25 November 1994, but by the appellant’s steering committee, by a two-thirds majority of its members, at its meeting of 10 March 1995.

153

In those circumstances, that statute cannot be considered to form part of the same international agreement as that resolution, and therefore it is not capable of being assessed together with it. The appellant’s argument that the resolution of 25 November 1994 and the initial statute constituted a ‘whole treaty system’ and had to be assessed together cannot therefore succeed. As the Advocate General observed in point 85 of his Opinion, the initial statute differs from that resolution, since, unlike that resolution, it does not constitute an international agreement, but an act adopted by a body of the appellant itself.

154

That being said, the fact remains, as is apparent from paragraphs 287, 332 and 333 of the judgment under appeal, that the initial statute was adopted immediately following the adoption of the resolution of 25 November 1994 by the appellant’s steering committee established by that resolution, on which sat at least some of the States and international organisations that had adopted that resolution.

155

The initial statute was thus part of the process of establishing the appellant, as the Advocate General observed in point 119 of his Opinion. It was adopted by some of the signatories to the resolution of 25 November 1994, namely those which sat on the appellant’s steering committee. Furthermore, it is not apparent from the judgment under appeal that the other signatories to that resolution raised any objections to the initial statute.

156

In those circumstances, it must be held that the initial statute is an instrument made by certain parties in connection with the conclusion of the international agreement consisting in the resolution of 25 November 1994, an instrument which was accepted by the other parties as being related to that international agreement, within the meaning of Article 31(2)(b) of the Vienna Convention. Therefore, in accordance with that provision, the initial statute had to be taken into consideration for the purpose of interpreting the resolution of 25 November 1994 as part of its context.

157

It follows that the General Court also vitiated the judgment under appeal by an error of law in that it held, in essence, in paragraph 334 of that judgment, that the initial statute could not be taken into consideration for the purpose of interpreting the resolution of 25 November 1994, since it did not reflect the subsequent practice followed by all the authors of that resolution.

158

It follows from all the foregoing considerations that the General Court’s assessment of the validity of the finding in the decision at issue that the appellant was not established as an international organisation is vitiated by errors of law, as is apparent from paragraphs 112, 138 and 157 of the present judgment.

159

In those circumstances, since the remainder of the grounds set out in the decision at issue are not sufficient to confirm the legality of that decision, it is appropriate, without examining the other arguments put forward by the appellant, to uphold the fifth ground of appeal and, without it being necessary to examine the first to fourth grounds of appeal or the sixth ground of appeal, to uphold the appeal and to set aside the judgment under appeal, in so far as the General Court dismissed the claim for annulment of the decision at issue and the claim that the Commission should be ordered to pay the appellant compensation in the amount of EUR 23651903 for the financial and non-material damage which it claims to have sustained as a result of the unlawful acts vitiating the decision at issue, which replaced the decisions of 16 December 2014 and 8 May 2015.

160

By contrast, since none of the grounds of appeal seeks to call into question the General Court’s rejection of the appellant’s claim that the Commission should be ordered to pay it compensation in the amount of EUR 20000 for the damage sustained as a result of the allegedly unreasonable length of time involved in the procedure for the adoption of the decision at issue, the judgment under appeal has, to that extent, become final.

161

In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, where the state of the whole or a part of the proceedings so permits, the Court of Justice may itself give final judgment on the whole of the proceedings, or, as the case may be, on the part thereof the state of which so permits, while referring, where appropriate, the part the state of which does not so permit back to the General Court.

162

In the present case, the Court of Justice will itself give final judgment on the claim for annulment of the decision at issue and on part of the claim for compensation.

163

By the second and fourth pleas in its action, the appellant complains that the Commission, in essence, vitiated the decision at issue by errors of law and manifest errors of assessment which led it to find that the appellant was not an international organisation and, therefore, was not eligible for the implementation of the EU budget under the indirect management method provided for by the EU Financial Regulations.

164

It must be borne in mind that the General Court held that the Commission had erred in law in finding, in the decision at issue, that the resolution of 25 November 1994 did not constitute an international agreement. There is no need to call that finding into question, since the Commission did not lodge a cross-appeal challenging that part of the judgment under appeal (see, to that effect, judgment of 23 November 2021, Council v Hamas, C‑833/19 P, EU:C:2021:950, paragraph 81 and the case-law cited).

165

As is apparent from paragraphs 136 and 138 of the present judgment, the wording and purpose of the resolution of 25 November 1994 do not support the finding that the authors of that resolution did not intend to establish the appellant as an international organisation, or that their intention was to establish the appellant as a mere mechanism for cooperation between them, without independent legal personality.

166

On the contrary, it is apparent from that resolution that those authors endowed the appellant with its own bodies, namely the General Manager, appointed by that resolution, and the steering committee and the GSG, with its own staff and its own budget. In addition, powers such as those referred to in paragraph 134 of the present judgment were conferred on the appellant. All of those factors show that the authors of that resolution intended the appellant to constitute a separate entity, enjoying a degree of autonomy vis-à-vis its members, which, moreover, were liable to vary, in so far as it was, in essence, provided for that each member of the appellant could, at any time, unilaterally decide to terminate its participation in the appellant.

167

In so far as those authors intended to establish the appellant as a separate entity, enjoying a degree of autonomy, it follows that those authors also intended to confer on the appellant international legal personality, since those factors entail the appellant’s capacity to exercise rights and be subject to obligations of its own in the international legal order and the capacity to act.

168

That finding is not called into question by the replies given by the States referred to on the appellant’s website – and presented there as its members – to the questions sent to them by the Commission concerning the adoption of the resolution of 25 November 1994 and the appellant’s status.

169

It must be observed in that regard that those replies are opinions that were given 25 years after the adoption of the resolution of 25 November 1994. As the Advocate General observed, in essence, in points 218 and 219 of his Opinion, such opinions are not relevant for the purpose of assessing the intention of the parties when signing the resolution of 25 November 1994.

170

As regards the fact that all the States questioned by the Commission, with the exception of the Republic of Austria, had stated that they were not members of the appellant, it should be noted that the question of whether a State is a member of an entity is distinct from the question of whether that entity constitutes an international organisation. It cannot be ruled out that certain States or international organisations which participated in the creation of the appellant through the resolution of 25 November 1994 and which, as a result, became members of the appellant, subsequently left the appellant and were no longer members of it, without that affecting the appellant’s status as an international organisation.

171

In any event, once established, an international organisation does not simply cease to exist if some of its members decide to leave it. As the case may be, it is for the remaining members to decide whether or not to dissolve the organisation concerned, while at the same time taking the necessary steps to settle the legal relationships entered into by that organisation during its existence. It is not apparent from the decision at issue that, during the approximately 27 years that have passed since the resolution of 25 November 1994 was adopted, the decision was taken to dissolve the appellant.

172

On the basis of all the foregoing considerations, it must be held that the decision at issue is vitiated by illegality, in so far as the Commission found, in breach of Article 43(1) of the 2012 Delegated Financial Regulation and Article 31 of the Vienna Convention, which reflects customary international law, that the resolution of 25 November 1994 did not constitute an international agreement that had the effect of establishing the appellant as an international organisation. Accordingly, the decision at issue must be annulled.

173

The appellant claims that the Commission should be ordered to pay it compensation in the amount of EUR 8651903 for the material damage and in the amount of EUR 15 million for the non-material damage which it claims to have sustained as a result of the unlawful acts vitiating the decision at issue, which replaced the decisions of 16 December 2014 and 8 May 2015.

174

In the first place, as regards the claim for compensation for the non-material damage, the appellant recalls that, in a previous case before the General Court, it had sought compensation in the amount of EUR 10 million for the non-material damage which it claimed to have sustained as a result of the adoption of the decision of 8 May 2015. It claims that that non-material damage ‘has increased by EUR 5 million’ as a result of the adoption of the decision at issue.

175

It should be noted in that regard that, by the judgment of 22 September 2022, IMG v Commission (C‑619/20 P and C‑620/20 P, EU:C:2022:722), the Court of Justice set aside the judgment of 9 September 2020, IMG v Commission (T‑381/15 RENV, EU:T:2020:406), in so far as the General Court had rejected as unfounded, inter alia, an earlier claim for compensation made by the appellant for the non-material damage which it claimed to have sustained as a result of the adoption of the decision of 8 May 2015.

176

Ruling, after disposing of the case, on the substance of that claim, the Court of Justice noted that the sufficiently serious breach by the Commission, when it adopted the decision of 8 May 2015, of its duty of diligence had indeed been established and that that breach had caused the appellant non-material damage in the form of damage to its reputation. However, the Court recalled that it had found that that decision was unlawful and had annulled it by the judgment of 31 January 2019. The Court therefore held that the clear terms in which the finding that that decision was unlawful was worded were such as to ensure appropriate and sufficient compensation for the non-material damage sustained by the appellant, having regard to the context in which they were made, and, accordingly, the appellant’s claim for damages had to be dismissed as unfounded in so far as it related to the non-material damage resulting from the unlawfulness of the decision of 8 May 2015 (judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraphs 194 and 198 to 200).

177

The Court thus applied settled case-law, according to which non-material damage or non-pecuniary damage may, in certain situations, be regarded as being remedied appropriately and sufficiently by the annulment of the unlawful act which caused it (judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 197 and the case-law cited).

178

In accordance with that case-law and for reasons similar to those given by the Court with regard to the non-material damage sustained by the appellant as a result of the adoption of the decision of 8 May 2015, it must be held that the finding, in paragraph 172 of the present judgment, that the decision at issue is unlawful, expressed in clear terms, and the annulment of the decision at issue that flows from that finding are such as to ensure appropriate and sufficient compensation for the non-material damage sustained by the appellant as a result of the adoption of that decision.

179

In those circumstances, the claim for compensation must be rejected as unfounded, in so far as it seeks compensation for that non-material damage.

180

In the second place, as regards the claim for compensation for the material damage which the appellant claims to have sustained as a result of the unlawful acts vitiating the decision at issue, it should be noted that, admittedly, the concept of ‘international organisation’ may give rise to difficulties of interpretation in the absence, in particular, of case-law on that subject (judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 191).

181

However, in the present case, in adopting the decision at issue, the Commission relied almost exclusively on the replies of the States which it had questioned. The Commission thus largely ignored the terms of the resolution of 25 November 1994 and its context, in particular the initial statute, which expressly provided that the appellant had legal personality. Without a decision to establish the appellant as a legal person in accordance with the rules of a State or an international organisation, it could not acquire legal personality unless it had been established as an international organisation.

182

In addition, the Commission confined itself to interpreting at its discretion the replies of the States it had questioned, without engaging in a dialogue with those States to determine whether, and how, those replies could be reconciled with the factors referred to in the preceding paragraph.

183

In those circumstances, the possible difficulties in interpreting and applying the concept of ‘international organisation’ cannot justify the conclusion that the errors, resulting from a manifest lack of diligence, made by the Commission when adopting the decision at issue are excusable. Accordingly, the illegality vitiating that decision must be regarded as sufficiently serious and, therefore, capable of giving rise to the non-contractual liability of the European Union (see, by analogy, judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraphs 193 and 194).

184

That being so, it must be observed that any material damage sustained by the appellant would result from the Commission’s decision no longer to enter into delegation agreements with it using the indirect management method provided for by the EU Financial Regulations. Thus, as the appellant itself points out in its action, that damage stems from the decision of 8 May 2015. By its application in the present case, the appellant claims to be ‘updating’ the damage sustained.

185

It should be recalled in that regard that, by its action before the General Court, registered as Case T‑381/15, the appellant also brought a claim for compensation for the material damage which it claimed to have sustained as a result of the adoption of the decision of 8 May 2015, which was dismissed by the judgment of 2 February 2017, IMG v Commission (T‑381/15, EU:T:2017:57).

186

As stated in paragraph 21 of the present judgment, by the judgment of 31 January 2019, the Court of Justice, inter alia, set aside the judgment of 2 February 2017, IMG v Commission (T‑381/15, EU:T:2017:57), and referred the case back to the General Court for a ruling on the action in that case, in so far as it sought compensation for the damage which the appellant claims to have sustained as a result of the adoption of the decision of 8 May 2015. By the judgment of9 September 2020, IMG v Commission (T‑381/15 RENV EU:T:2020:406), the General Court rejected the appellant’s claim for compensation for the damage allegedly caused by the decision of 8 May 2015.

187

By judgment of 22 September 2022, IMG v Commission (C‑619/20 P and C‑620/20 P, EU:C:2022:722), the Court of Justice set aside the judgment of 9 September 2020, IMG v Commission (T‑381/15 RENV, EU:T:2020:406), in so far as it dismissed as unfounded the appellant’s claim for compensation in respect of the damage allegedly caused to it by the decision of 8 May 2015, and referred the case back to the General Court for a ruling on that claim, in so far as it relates to the material damage alleged by the appellant.

188

By the judgment of 4 September 2024, IMG v Commission (T‑381/15 RENV II, EU:T:2024:589), the General Court dismissed that claim as unfounded.

189

However, by today’s judgment in Case C‑789/24 P, the Court of Justice (i) set aside that judgment of the General Court, (ii) recalled that it had already held, in the judgment of 22 September 2022, IMG v Commission (C‑619/20 P and C‑620/20 P, EU:C:2022:722), that there had been a sufficiently serious breach of the Commission’s duty of diligence in adopting the decision of 8 May 2015, (iii) found that there was a causal link between that breach and the material damage alleged by the appellant as a result of the Commission no longer entering into delegation agreements with it, and (iv) referred the case back to the General Court for it to rule on the existence and extent of any damage sustained by the appellant as a result of the loss of opportunity to be entrusted by the Commission with budget implementation tasks as an international organisation.

190

It is therefore necessary to determine whether, and to what extent, the claim for compensation for material damage in the present case seeks compensation for damage of the same nature and the same amount as those of the damage for which compensation is sought by the claim for compensation in Case T‑381/15, which is still pending, since, if that were the case, the claim for compensation for material damage in the present case would, to that extent, have to be declared inadmissible on the ground of lis pendens (see, to that effect, judgment of 19 September 1985, Hoogovens Groep v Commission, 172/83 and 226/83, EU:C:1985:355, paragraph 9).

191

Furthermore, in so far as the claim for compensation for the material damage relied on by the appellant concerns damage of a different nature to that of the damage concerned by the claim for compensation for material damage in Case T‑381/15, or an amount exceeding the amount sought by the latter claim, it must be observed that, admittedly, in paragraph 183 of the present judgment, the Court found that the condition for the European Union to incur non-contractual liability, relating to the sufficiently serious nature of the unlawful act committed, was, in the present case, satisfied.

192

However, as the file currently stands, the Court does not have before it all the information necessary to rule on the existence and extent of any damage, such as that referred to in the preceding paragraph, sustained by the appellant and, as the case may be, on the existence of a causal link between such damage and the unlawful act committed by the Commission.

193

Accordingly, the state of the proceedings does not permit final judgment to be given and the case must be referred back to the General Court, so that it may rule on the matters set out in paragraphs 190 to 192 of the present judgment.

194

Since the case has been referred back to the General Court, the costs relating to the present appeal must be reserved.

On those grounds, the Court (Fifth Chamber) hereby: