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Action brought on 22 October 2009 - GL2006 Europe v Commission and OLAF

(Case T-435/09)

Language of the case: English

Parties

Applicant: GL2006 Europe Ltd (Birmingham, United Kingdom) (represented by: M. Gardenal and E. Belinguier-Raiz, lawyers)

Defendants: Commission of the European Communities and European Anti-Fraud Office (OLAF)

Form of order sought

declare that the on-the-spot check carried out by the Commission in December 2008, the draft audit report and the final audit report issued respectively on 19 December 2008 and 25 March 2009 by the Commission, as well as the final decision of the Commission contained in the letter of 10 July 2009, which foresees the termination of two projects in which GL2006 Europe Ltd was involved, and the debit notes of 7 August 2009 which provide that GL2006 Europe Ltd has to repay a total sum of EUR 2 258 456, 31 to the Commission are unlawful, null and void;

in the alternative and/or in addition, establish that the Commission's substantive allegations are not justified;

declare that the Commission on-the-spot check, audit reports and final decision cannot affect the validity of the EC contracts in which GL2006 Europe Ltd was involved;

declare that these contracts are valid;

order the Commission to pay all the costs.

Pleas in law and main arguments

By the present application based on the arbitration clause, the applicant contests the lawfulness of the Commission decision of 10 July 2009 terminating, following the OLAF's audit report, two contracts concluded with the applicant in the framework of the community programmes for research and technological development. The applicant contests as well the lawfulness of the debit notes issued by the Commission on 6 August 2009, following the same OLAF's audit report, recovering the advance payments made by the Commission for twelve projects in which the applicant was involved and submitted to investigation.

The applicant puts forward the following arguments in support of its claims.

First, it claims that the on-the-spot check carried out by the Commission was irregular for the following reasons: there was no prior notification; its duration was insufficient with the respect to the seriousness of the final decision; the consideration of the essential elements was not sufficient; the Commission infringed the privacy of the applicant; there was an error regarding the legal basis as the written record of the check mentioned a no longer in force regulation.

Second, the applicant contends that the audit report present serious irregularities such as lack of appropriate motivation since it was taken on the grounds of an incomplete on-the-spot check, or lack of relation between the analysis and the conclusions reached by the final report which led to violation of the applicant's fundamental rights such as presumption of the innocence.

Third, the applicant claims that the Commission's final decision lacks of clarity regarding the sanction since it foresees the termination of two contracts while the relative debit notes are related to twelve contracts. It also submits that this final decision was not regularly notified to the applicant.

Furthermore, the applicant submits the claims regarding the substantial arguments given by the Commission in order to terminate the contracts and to claim the reimbursement of the sums conferred to the applicant. The applicant contends that this arguments put forward by the Commission in its decision are groundless and they reach the opposite conclusions to the ones issued by the audit report for 2007.

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