Action brought on 31 October 2023 – UH v Commission
(Case T-1052/23)
Language of the case: English
Parties
Applicant: UH (represented by: A. Van der Hauwaert, lawyer)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
annul, pursuant to Article 263 TFEU, the decision of the European Commission of 1 September 2023 [Ref. Ares2023)5982056], notified to the applicant on 4 September 2023;
in the alternative, pursuant to Article 261 TFEU and Article 143(9) of the 2018 Financial Regulation, 1 annul the publication and registration penalty imposed by the contested decision; and
in any event, order the European Commission to pay the applicant’s costs.
Pleas in law and main arguments
In support of the action, the applicant relies on nine pleas in law.
First plea in law, alleging that the Authorising Officer’s failure to take into account the applicant’s pleadings before the Brussels Court of Appeal violated the applicant’s right to a proper and full defence.
It is argued that the Authorising Officer denied the applicant’s right to a proper and full defence when he refused to take into account the applicant’s appeal submissions filed in the proceedings before the Brussels Court of Appeal.
Second plea in law, alleging error in fact regarding the alleged grave professional misconduct.
The applicant asserts that the Authorising Officer erred in fact when concluding that (i) no consortium existed and (ii) the applicant has requested the other consortium members to sign a backdated consortium agreement.
Third plea in law, alleging error in law regarding the alleged grave professional misconduct.
The argument is made here that the Authorising Officer failed to demonstrate that the alleged facts qualify as grave professional misconduct.
Fourth plea in law, alleging that the period to exclude the applicant for the alleged grave professional misconduct lapsed (limitation).
The Authorising Officer is said to have erred in law when he decided to exclude the applicant on the basis of alleged acts which occurred far enough in the past that the imposition of sanctions for those acts is time-barred.
Fifth plea in law, alleging error in fact and in law regarding the decision to register.
The applicant maintains that there is no factual or legal basis to impose a registration penalty.
Sixth plea in law, alleging error in fact regarding the alleged breach of main obligations.
It is claimed that the Authorising Officer erred in fact when alleging that the applicant would have committed a breach of its main obligations.
Seventh plea in law, alleging that the period to exclude the applicant for the alleged breach of main obligations lapsed (limitation).
The Authorising Officer, it is said, erred in law when he decided to exclude the applicant on the basis of alleged breaches of main obligations which occurred far enough in the past that the imposition of sanctions for those acts is time-barred.
Eighth plea in law, alleging failure to apply the principle of proportionality in respect of the publication.
It is argued that the Authorising Officer failed to apply the principle of proportionality, as provided for in Article 109(3) of Regulation 966/2012 1 and Article 106(16) of Regulation 966/2012 as amended, in respect of the decision to publish the exclusion.
Ninth plea in law, alleging failure to apply Article 106(16), paragraph 2, of Regulation 966/2012 as amended in respect of the publication.
The Authorising Officer failed to apply Article 106(16) Regulation 966/2012 as amended, as he omitted to include a statement in the intended publication that there has been no final judgment.
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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).
1 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).