Action brought on 4 November 2009 - Centre national de la recherche scientifique v Commission

(Case T-448/09)

Language of the case: French

Parties

Applicant: Centre national de la recherche scientifique (Paris, France) (represented by: N. Lenoir, lawyer)

Defendant: Commission of the European Communities

Form of order sought

Declare the action admissible and well founded;

order the Commission to refund the amount allegedly receivable of EUR 110 102.26, together with interest on late payment at the statutory rate in accordance with Belgian law governing the contract, claimed by the Commission under the contract by its debit note of 29 June 2009 (Ref No 3230906067) and which gave rise to a set-off measure dated 17 August 2009 (Ref BUDG/C3 D(2009) 10.5 - 1232);

order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, the Centre national de la recherche scientifique (CNRS) requests the Court to order the Commission to refund the amount receivable (EUR 110 102.26) referred to in debit note No 3230906067 of 29 June 2009, which is allegedly payable by the applicant under the EURO-THYMAIDE contract relating to a project under the Sixth Framework Programme for Research and Development, and which gave rise to a set-off measure dated 17 August 2009, together with interest on late payment.

The applicant puts forward three pleas in law in support of its application, alleging:

failure to comply with the contractual criteria for justification of costs, in that the Commission failed to apply Article II.19.1 of the General Conditions of the EURO-THYMAIDE contract relating to eligible costs; and, in the alternative, with the obligation of good faith laid down by Article 1134 of the Belgian Civil Code - by dismissing evidence of the direct costs of staff involved in the project, the evidential value of which was nevertheless obvious. This approach caused the Commission erroneously to reject certain direct personnel costs and to make adjustments which resulted in the disputed claim;

the erroneous assessment of the Provision pour Perte d'Emploi (loss of employment provision; 'PPE') in the light of the criteria laid down by Articles II.19.1, II.19.2.c and II.20 of the General Conditions of the EURO-THYMAIDE contract, in so far as, contrary to its misleading name, PPE is a personnel cost associated with unemployment insurance that is indissociable from eligible personnel costs. By refusing to allow eligible costs to include amounts corresponding to the PPE levied against the pay of temporary CNRS staff involved in the project, the Commission infringed the requirements referred to above;

the manifestly erroneous assessment of sick pay in the light of the eligibility criteria provided for under the contract, in that, contrary to Article II.19 of the General Conditions of the EURO-THYMAIDE contract, the Commission included in the costs deemed ineligible salaries paid during periods of sick leave to CNRS staff involved in the project.

____________