Action brought on 21 December 2023 – Rimorchiatori Riuniti Panfido & C. v CINEA
(Case T-1193/23)
Language of the case: Italian
Parties
Applicant: Rimorchiatori Riuniti Panfido & C. Srl (Venice, Italy) (represented by: M. Solveni, lawyer)
Defendant: European Climate, Infrastructure and Environment Executive Agency
Form of order sought
The applicant claims that the Court should:
primarily, in accordance with Article 272 TFEU and pursuant to the arbitration clause contained in grant agreement INEA/CEF/TRAN/M2014/1038206 (‘the grant agreement’), declare that the applicant carried out exactly what was within its remit under the grant agreement, Activity No 15 of the ‘Poseidon Med II’ project in particular, and, consequently, declare that CINEA is required to make a total payment to the applicant of EUR 9 872 799.02, in respect of eligible costs of EUR 19 745 598.03 submitted and accepted under the grant agreement, and, as a result, order CINEA to pay EUR 3 308 761.60 (equal to the difference between the amount due to the applicant under the grant agreement and the payments already received), in addition to interest and damages from currency devaluation, or a lower sum deemed payable should the Court assess that Activity No 15 under the grant agreement was carried out only in part before 31 December 2021;
in the alternative, under Article 26[3] TFEU, annul the decision taken by CINEA on 9 October 2023 and communicated to the applicant on 11 October 2023 in so far as it excludes the applicant from the subsidy;
by measure of organisation of procedure, where the facts set out in the application are disputed, admit witnesses to prove such facts;
order the defendant to pay the costs.
Pleas in law and main arguments
In support of the action, the applicant relies on two pleas in law.
First plea in law, alleging breach of the grant agreement by CINEA.
More specifically, the applicant submits that (i) it submitted evidence of having performed the activities within its remit under the grant agreement; (ii) it has formally undertaken also to complete the executive design of the vessel and its commissioning; (iii) it showed that it carried out the preparatory activities for the full use thereof; and (iv) the delays are attributable to facts extraneous to its own legal position. It argues that, despite this, CINEA assessed the applicant’s contribution to the project as being non-existent and therefore in breach of Article 1147 (which requires the fault of the defaulting party to be attributable), Article 1162 (which provides that the text of the contract is to be interpreted contra proferentem) and of Article 1315 (which, for reciprocal obligations, in view of the proof of performance of one party, requires proof of the event that has brought about the extinction of its obligation in order for the other party to be released) of the Belgian Civil Code, of the grant agreement and of the instructions provided by CINEA to the beneficiaries of grant agreements for CEF projects. 1
Second plea in law, (i) seeking annulment under Article 263 TFEU of the decision taken by CINEA on 9 October 2023, wherein the agency set out expressly that an action for annulment was necessary, as it is the only means of challenge that prevents the action from becoming time-barred, and (ii) pointing out that the contested decision was issued in breach of the CEF Regulation, 1 of the Financial Regulation, 2 of Commission Implementing Decision C(201[4])1921, of the Guidelines for the assessment of actions by beneficiaries of a grant agreement, and also of the law of the Kingdom of Belgium in relation to the grant agreement. The grounds for invalidity are the same as those relating to the first plea in law.
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1 ‘Connecting Europe Facility’.
1 Regulation (EU) No 1316/2013 of the European Parliament and of the Council, of 11 December 2013, establishing the Connecting Europe Facility, amending Regulation (EU) No 913/2010 and repealing Regulations (EC) No 680/2007 and (EC) No 67/2010 (Text with EEA relevance) (OJ 2014 L 348, p. 129).
1 Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p.1).