Action brought on 2 October 2013 – Inclusion Alliance for Europe v Commission

(Case T-539/13)

Language of the case: Italian

Parties

Applicant: Inclusion Alliance for Europe GEIE (Bucharest, Romania) (represented by: S. Famiani, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

annul the Commission’s decision of 17 July 2013 requesting overall payment in the amount of EUR 212 411.89 in respect of the following projects: Project No 224482, known as MARE (EUR 80 352.07), Project No 216820, known as SENIOR (EUR 53 138.40) and Project No 225010, known as ECRN (EUR 78 231.42); and

order the Commission to pay compensation for the financial loss and non-material damage suffered in the amount of EUR 3 000 000 or an amount to be determined in the course of the proceedings, as well as the costs of the proceedings, together with interest and monetary indexation of the sum payable.

Pleas in law and main arguments

The applicant in the present proceedings, which participated in three projects approved under the seventh framework programme of the European Community for research, technological development and demonstration activities (2007-2013), contests the Commission’s decision seeking partial restitution of the aid granted.

In support of its action, the applicant puts forward eight pleas in law:

First plea: the Financial Guide 2010 is inapplicable and lacks retroactive effect in relation to the MARE and SENIOR projects.

The applicant argues in that regard that the Financial Guide 2010 did not apply retroactively and that, in consequence, the Financial Guide 2007 should have applied, since it was in force at the time when the contracts were signed.

Second plea: the Commission and the company responsible for the audit failed to respect the applicant’s right to be heard.

The applicant argues in that regard that the Commission ignored the rules in Annex II to the contract, both in respect of the right to a fair hearing and in relation to respecting the terms for the submission of the reports.

Third plea: the Commission acted in breach of the principle of cooperation and of mutual trust vis-à-vis the applicant, particularly as regards suspected maladministration and injurious behaviour.

4.    Fourth plea: uncertainty of the rules applicable to SMEs for the purposes of the recognition of the project costs.

–    The applicant argues in that regard that the Commission does not draw attention to the risks linked to the failure mechanisms of the accounting system which may result in all of a project’s costs being rejected.

Fifth plea: the rules of the International Audit Federation and the European legislation in force governing the audit of SMEs were disapplied.

Sixth plea: concerning the permissibility of the project costs and the assessment gaps in the audit.

Seventh plea: the company responsible for the audit based its conclusion that the costs should be rejected mainly on the exclusive use of timesheets.

–    The applicant argues in that regard that the auditors rejected certain travel expenses because they were not included in the initial planning document (Dow); even though the work plan of the projects is normally set out in detail on an annual basis.

Eighth plea: (i) the applicant has a legitimate right to be paid for activities correctly carried out and (ii) unjust enrichment of the Commission.

–    The applicant argues in that regard that the results of the MARE, SENIOR and ECNR projects were delivered to the Commission within the time allowed, they results were considered excellent, and were fully accepted by the Commission and approved and signed by the European Commissioner responsible for the sector; the ENCR project was extended for an additional six months in recognition of the work carried out. Rejecting the overall costs of the projects would therefore be at variance with the principle of the right to be remunerated for work carried out, resulting in the Commission being unjustly enriched.