Action brought on 21 May 2013 – SACBO v Commission and TEN-T EA

(Case T-270/13)

Language of the case: Italian

Parties

Applicant: Società per l'aeroporto civile di Bergamo-Orio al Serio SpA (SACBO SpA) (Grassobbio (BG), Italy) (represented by: M. Muscardini, lawyer, G. Greco, lawyer)

Defendants: Trans-European Transport Network Executive Agency, European Commission

Form of order sought    

The applicant claims that the Court should:

Annul the contested decision in so far as it held that certain external costs were ineligible - thereby reducing the co-financing to which the applicant was entitled and seeking the recovery of EUR 158 517.54 - with all the legal consequences thus arising.

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The present appeal is brought against the decision of 18 March 2013 adopted by the Trans-European Transport Network Executive Agency (TEN-T EA), concerning the ‘Closure of Action nº 2009-IT-91407-S- “STUDY FOR BERGAMO-ORIO AL SERIO AIRPORT DEVELOPMENT INTERMODALITY” - Commission Decision C(2010) 4456’, in so far as it found that the costs related to activities 1, 2.1, 4, 5, 6 and 7, which had already been carried out, were not admissible, as a result, requesting that the amount of EUR 158 517.54 be paid back.

In support of its application, the applicant puts forward five pleas in law.

First plea, alleging infringement of Article 13(1) of Regulation (EC) No 680/2007 of the European Parliament and of the Council of 20 June 2007, together with Articles III.4.2.2 and III.4.2.3 of Commission Decision (2010) 4456 of 24 June 2010

It is submitted in this connection that there was a failure to start a ‘complaints’ procedure, under Article III.4.2.3 of the decision to grant the funding.

Second plea, alleging infringement of Article 17(2) and (6) of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004, of the second paragraph of Article 296 TFEU and of Article 41(2)(c) of the Charter of Fundamental Rights of the European Union, together with infringement of Article II.2.3 of Commission Decision (2010) 4456 of 24 June 2010

The applicant claims in that regard that:

the decision contained contradictory reasoning because, on the one hand, it is claimed there had been an unjustified ‘fragmentation of the contracts’, while on the other hand, it is claimed that the ‘subject-matter of the contracts’ was ‘connected to such an extent’ that those contracts must have formed part of a single awards procedure;

there was an erroneous finding as concerns the improper fragmentation of a single contract because it is contradicted by the contents of Commission Decision (2010) 4456 of 24 June 2010;

there was an absence of any ‘splitting up’ of the contracts or of any ‘subdivision of the projects’;

Directive 2004/17/EC was inapplicable to the contracts as they did meet the thresholds therein due to the absence of any cross-border interest.

Third plea, alleging infringement of Article I.3.1 of Commission Decision (2010) 4456 of 24 June 2010, of Article 41(2)(c) of the Charter of Fundamental Rights of the European Union, of Article 296 of the Treaty on the Functioning of the European Union, and of the principle of protection of legitimate expectations

The applicant claims, in that regard, that:

the decision contained contradictory reasoning as it conflicted with the recognition and approval already granted by TEN-T EA concerning the SAP (Strategic Action Plan) and the ASR (Action Status Report);

the activities undertaken by SACBO were in conformity with those activities which were the subject of co-financing.

Fourth plea, alleging infringement of Article 40(2)(b),(c) and (d) of Directive 2004/17/EC

The applicant claims in that regard:

that Directive 2004/17/EC is inapplicable to contracts which are the subject of co-financing for the purposes of ‘study’ and ‘research’;

that it was impossible to carry out an open tendering procedure due to the time limits imposed by the co-financing decision.

Fifth plea, alleging infringement of principle of proportionality

The applicant alleges that the defendant has disregarded the principle of proportionality by having subjected that alleged breach to a much stricter regime than the regime provided for in cases where co-financing is cancelled.