79) The application of the case-law of the General Court, which makes a distinction as to whether the pleas raised in the context of an action must be regarded by the EU judicature adjudicating on that action as relating to one of the infringements or cases referred to in the second paragraph of Article 263 TFEU or, on the contrary, as alleging failure to perform the clauses of the contract concerned or infringement of the provisions of national law applicable to that contract, would have required that the applicant bring its action on the basis of Article 272 TFEU as well. As such, that case-law would not ensure that all the questions of fact and law that are relevant to the dispute are examined in order to ensure effective judicial protection under Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

80) For a court to be able to determine a dispute concerning rights and obligations arising under EU law in accordance with Article 47 of the Charter, that court must have jurisdiction to consider all the questions of fact and law that are relevant to the dispute before it (see, to that effect, judgments of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraph 49, and of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 84). Thus, where the EU judicature adjudicates, under Article 263 TFEU, on an action for annulment in the context of a dispute concerning a decision taken on the basis of the performance of a contract, such as in the context of the adoption of an enforceable decision formally establishing a contractual claim, it is for that judicature to hear and determine both the pleas calling into question that decision on the ground that the institution exercised its prerogatives of a public authority and those calling into question the contractual obligations that led to the adoption of that decision (see, to that effect, judgment of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 88).

81) Furthermore, if the parties decide, in their contract, to confer on the EU judicature, by means of an arbitration clause, jurisdiction over disputes relating to that contract, that judicature will have jurisdiction, independently of the applicable law stipulated in that contract, to examine any infringement of the Charter or of the general principles of EU law. 82 In that regard, it should be pointed out that, where the Commission performs a contract, it remains subject to its obligations under the Charter and the general principles of EU law. Thus, the fact that the law applicable to the contract concerned does not guarantee the same rights as those guaranteed by the Charter and the general principles of EU law does not exempt the Commission from ensuring that the rights guaranteed by the latter are respected in relation to its contracting parties (see, to that effect, judgment of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 86).