Action brought on 20 September 2013 – Stichting Sona and Nao v Commission

(Case T-505/13)

Language of the case: Dutch

Parties

Applicants: Stichting Sona (Curaçao, formerly Netherlands Antilles) and Nao NV (Curaçao) (represented by: R. Martens, K. Beirnaert and A. Van Vaerenbergh, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

annul the decision of the European Commission of 28 June 2013, of which the applicants had knowledge only at the end of July 2013, not to designate Stichting SONA as delegated entity for the implementation tasks of the single programming document for the former Netherlands Antilles under the 10th European Development Fund;

annul the decision of the European Commission to grant the implementation tasks for this programming document to International Management Group (IMG).

Pleas in law and main arguments

In support of the action, the applicants rely on seven pleas in law.

First plea in law, alleging a breach of the presumption of innocence, the rights of the defence, the right to protection of personal data and the secrecy or confidentiality of investigations, as protected by Articles 8 and 48 of the Charter of Fundamental Rights of the European Union, by Articles 6 and 8 of the European Convention on Human Rights, and by Article 16 TFEU.

The applicants allege that the defendant sent letters to the Netherlands Government about a pending investigation conducted by the European Anti-Fraud Office (OLAF), in respect of which no (final) report has yet been produced, but which expressly name the applicants and which indicate, or at least very strongly suggest, that the applicants are involved in irregularities in the context of the management of the 9th European Development Fund project, and accordingly, on the basis of that allegation, decided that the implementation of the 10th European Development Fund for the projects on the former Netherlands Antilles could not be assigned to the applicants. At the same time, the applicants were never designated by OLAF as a ‘person concerned’, so they have never been aware that they had to defend themselves as a ‘person concerned’, thus making it impossible for them to defend themselves since, up to now, they have still not heard what the concrete allegations, allegedly existing against them, and against which they must defend themselves, are.

Second plea in law, alleging a breach of the principle of the protection legitimate expectations by creating a legitimate expectation on the part of the applicants that they would be responsible for the implementation of the 10th European Development Fund as regards the former Netherlands Antilles.

Third plea in law, alleging a breach of the principle of proportionality because of the Commission’s exclusion of the applicants solely due to the existence of ‘preliminary findings’ in an OLAF investigation which mention ‘potential problems’.

Fourth plea in law, alleging a breach of the right to be heard.

Fifth plea in law, alleging a breach of the principle of transparency as set out in Article 14 of Regulation (EC) No 215/2008, ¹ and the duty to give reasons.

Sixth plea in law, alleging breach of Article 18 of Regulation (EC) No 2304/2002 ² and of the single programming document for the 10th European Development Fund.

Seventh plea in law, alleging breach of Article 29 of Regulation (EC) No 215/2008 since the conditions for the implementation of the financing, in the context of assigning joint management to IMG have not been fulfilled. The second contested decision is therefore unlawful as well.

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¹ Council Regulation (EC) No 215/2008 of 18 February 2008 on the Financial Regulation applicable to the 10th European Development Fund (OJ 2008 L 78, p. 1).

² Commission Regulation (EC) No 2304/2002 of 20 December 2002 implementing Council Decision 2001/822/EC on the association of the overseas countries and territories with the European Community (Overseas Association Decision) (OJ 2002 L 348, p. 82).