# C_2021072EN.01003001.xml

| 1.3.2021 | EN | Official Journal of the European Union | C 72/30 |
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1.3.2021

EN

Official Journal of the European Union

C 72/30

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Action brought on 24 December 2020 — PB v Commission

(Case T-775/20)

(2021/C 72/42)

Language of the case: French

Parties

Applicant: PB (represented by: L. Levi and M. Vandenbussche, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | declare the present action admissible and well founded; |
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declare the present action admissible and well founded;

and accordingly,

| — | set aside the Commission’s decision of 22 October 2020, notified on 23 October 2020, adopting an administrative measure against the applicant to withdraw the amount allegedly received unduly by [HB] under the TACIS/2006/101-510 and CARDS/2008/166-429 contracts; |
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set aside the Commission’s decision of 22 October 2020, notified on 23 October 2020, adopting an administrative measure against the applicant to withdraw the amount allegedly received unduly by [HB] under the TACIS/2006/101-510 and CARDS/2008/166-429 contracts;

| — | order the repayment of any amounts recovered by the Commission on the basis of that decision, together with default interest at the rate applied by the European Central Bank, increased by seven percentage points; |
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order the repayment of any amounts recovered by the Commission on the basis of that decision, together with default interest at the rate applied by the European Central Bank, increased by seven percentage points;

| — | order the payment of 10,000 euros by way of damages, subject to completion of the proceedings; |
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order the payment of 10,000 euros by way of damages, subject to completion of the proceedings;

| — | order the Commission to pay all the costs. |
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order the Commission to pay all the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on ten pleas in law.

| 1. | First plea in law, alleging that the findings of the OLAF reports and the irregularities found against the company of which the applicant is manager are unlawful. In that regard, the applicant considers that the irregularities of which he is accused cannot be dissociated from the irregularities found against the company of which he is the manager, and that he contested by two actions (Cases T-795/19 and T-796/19 HB v Commission) maintaining that were the General Court to confirm the unlawfulness of the OLAF reports and/or the decisions of 15 October 2019 in the context of those cases, those findings would necessarily render the contested decision in the present case unlawful; |
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1.

First plea in law, alleging that the findings of the OLAF reports and the irregularities found against the company of which the applicant is manager are unlawful. In that regard, the applicant considers that the irregularities of which he is accused cannot be dissociated from the irregularities found against the company of which he is the manager, and that he contested by two actions (Cases T-795/19 and T-796/19 HB v Commission) maintaining that were the General Court to confirm the unlawfulness of the OLAF reports and/or the decisions of 15 October 2019 in the context of those cases, those findings would necessarily render the contested decision in the present case unlawful;

| 2. | Second plea in law, alleging that the claim is time-barred and, in any event, infringement of the reasonable period prescribed by Article 73a(1) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1). 1) (‘the 2002 Financial Regulation’), the right to good administration as enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’). According to the applicant, the Commission’s claim against the applicant is time-barred since the period of five years laid down in Article 73a of the 2002 Financial Regulation has expired and, in any case, the period prescribed for adopting the contested decision and the accompanying debit note is manifestly unreasonable and infringes Article 41 of the Charter and Article 6(1) of the ECHR in so far as it lays down a fundamental right which is also a general principle of law; |
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2.

Second plea in law, alleging that the claim is time-barred and, in any event, infringement of the reasonable period prescribed by Article 73a(1) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1). 1) (‘the 2002 Financial Regulation’), the right to good administration as enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’). According to the applicant, the Commission’s claim against the applicant is time-barred since the period of five years laid down in Article 73a of the 2002 Financial Regulation has expired and, in any case, the period prescribed for adopting the contested decision and the accompanying debit note is manifestly unreasonable and infringes Article 41 of the Charter and Article 6(1) of the ECHR in so far as it lays down a fundamental right which is also a general principle of law;

| 3. | Third plea in law, alleging the lack of a proper legal basis and breach of the principle of the legality of sanctions and of the principle of the application of the most lenient criminal law. The applicant considers that, according to Article 103 of the 2002 Financial Regulation, only the contracting party, i.e. the company of which he is the manager, may be subject to recovery proceedings. In so doing, the defendant also violated the principle of the application of the most lenient ‘criminal’ law or even the principle of the legality of sanctions, enshrined in Article 49 of the Charter, by seeking to apply a stricter legal obligation than that provided for in the 2002 Financial Regulation. Furthermore, the applicant submits that he is not an economic operator, that he did not obtain any advantage from the alleged illegalities, was not the recipient of any payment from the contracting authority and certainly never received an advantage equivalent to the full value of the two contracts in question; |
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3.

Third plea in law, alleging the lack of a proper legal basis and breach of the principle of the legality of sanctions and of the principle of the application of the most lenient criminal law. The applicant considers that, according to Article 103 of the 2002 Financial Regulation, only the contracting party, i.e. the company of which he is the manager, may be subject to recovery proceedings. In so doing, the defendant also violated the principle of the application of the most lenient ‘criminal’ law or even the principle of the legality of sanctions, enshrined in Article 49 of the Charter, by seeking to apply a stricter legal obligation than that provided for in the 2002 Financial Regulation. Furthermore, the applicant submits that he is not an economic operator, that he did not obtain any advantage from the alleged illegalities, was not the recipient of any payment from the contracting authority and certainly never received an advantage equivalent to the full value of the two contracts in question;

| 4. | Fourth plea in law, alleging violation of the judgment of the Court of First Instance of Brussels (Belgium) of 5 October 2017 and of the adage that ‘criminal law takes precedence over administrative law’. The applicant maintains that the Commission is bound by the judgment of 5 October 2017 handed down by the Belgian criminal court, which declared the proceedings inadmissible in the absence of elements to prove the incriminating facts. The Commission, which joined a civil claim before the criminal court, having decided to await the outcome of the Belgian proceedings before adopting the recovery decision, would be bound by that outcome and the findings of the national court, even if the judgment of the Belgian court did not have the effect of res judicata with regard to the Commission; |
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4.

Fourth plea in law, alleging violation of the judgment of the Court of First Instance of Brussels (Belgium) of 5 October 2017 and of the adage that ‘criminal law takes precedence over administrative law’. The applicant maintains that the Commission is bound by the judgment of 5 October 2017 handed down by the Belgian criminal court, which declared the proceedings inadmissible in the absence of elements to prove the incriminating facts. The Commission, which joined a civil claim before the criminal court, having decided to await the outcome of the Belgian proceedings before adopting the recovery decision, would be bound by that outcome and the findings of the national court, even if the judgment of the Belgian court did not have the effect of res judicata with regard to the Commission;

| 5. | Fifth plea in law, alleging manifest errors of assessment vitiating the contested decision. The applicant considers in that regard that the facts complained of are manifestly not established and that there are manifestly no irregularities, a fortiori serious ones. He maintains that the contested decision is based on two OLAF reports, even though the complaints made have not been established and are, in all cases, manifestly erroneous; |
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5.

Fifth plea in law, alleging manifest errors of assessment vitiating the contested decision. The applicant considers in that regard that the facts complained of are manifestly not established and that there are manifestly no irregularities, a fortiori serious ones. He maintains that the contested decision is based on two OLAF reports, even though the complaints made have not been established and are, in all cases, manifestly erroneous;

| 6. | Sixth plea in law, alleging that the applicant cannot be held liable for the alleged illegalities under Belgian company law. In that respect, he submits that the company of which he is manager is a private limited liability company under Belgian law, distinguishable in that the manager(s) is (are) not personally liable for the commitments given in the name of the company and his (their) assets cannot be used to pay off the debts of the company; |
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6.

Sixth plea in law, alleging that the applicant cannot be held liable for the alleged illegalities under Belgian company law. In that respect, he submits that the company of which he is manager is a private limited liability company under Belgian law, distinguishable in that the manager(s) is (are) not personally liable for the commitments given in the name of the company and his (their) assets cannot be used to pay off the debts of the company;

| 7. | Seventh plea in law, alleging infringement of the rights of the defence on the ground that the OLAF reports attached to the pre-information letters were blacked out to such an extent that they were unintelligible and that the applicant could not understand them and then make useful observations; |
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7.

Seventh plea in law, alleging infringement of the rights of the defence on the ground that the OLAF reports attached to the pre-information letters were blacked out to such an extent that they were unintelligible and that the applicant could not understand them and then make useful observations;

| 8. | Eighth plea in law, alleging breach of the principle of sound administration, the principle of performance of contracts in good faith and the principle of the prohibition of ‘abuse of rights’ in that the Commission acted neither carefully nor impartially; |
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8.

Eighth plea in law, alleging breach of the principle of sound administration, the principle of performance of contracts in good faith and the principle of the prohibition of ‘abuse of rights’ in that the Commission acted neither carefully nor impartially;

| 9. | Ninth plea in law, alleging a plea of illegality raised in respect of Article 103 of the 2002 Financial Regulation, in that it infringes the general principle of the prohibition of unjust enrichment. The applicant considers that that provision provides for the possibility for the institution to recover all the amounts paid throughout the period of performance of the contract even if it was entirely performed by the contractor, which would mean that the institution may thus benefit from all the services provided by the contractor without owing any payment to it. That provision should therefore be declared unlawful in that it allows the institution to improve its assets to the detriment of the assets of the contractor without justification; |
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9.

Ninth plea in law, alleging a plea of illegality raised in respect of Article 103 of the 2002 Financial Regulation, in that it infringes the general principle of the prohibition of unjust enrichment. The applicant considers that that provision provides for the possibility for the institution to recover all the amounts paid throughout the period of performance of the contract even if it was entirely performed by the contractor, which would mean that the institution may thus benefit from all the services provided by the contractor without owing any payment to it. That provision should therefore be declared unlawful in that it allows the institution to improve its assets to the detriment of the assets of the contractor without justification;

| 10. | Tenth plea in law, in the alternative, alleging infringement of Article 103 of the 2002 Financial Regulation and of the principle of proportionality. According to the applicant, the institution’s assessment must be carried out in accordance with Article 103 of the 2002 Financial Regulation, which means that the Commission may not apply more than one sanction, since that Article sets out a non-cumulative list of sanctions. Furthermore, the institution must ensure that its decision is proportionate to the seriousness of the irregularity in question by carrying out that assessment, in accordance with the principle of proportionality, which is an expression of the principle of good faith in the performance of contracts, which was not observed in the present case. |
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10.

Tenth plea in law, in the alternative, alleging infringement of Article 103 of the 2002 Financial Regulation and of the principle of proportionality. According to the applicant, the institution’s assessment must be carried out in accordance with Article 103 of the 2002 Financial Regulation, which means that the Commission may not apply more than one sanction, since that Article sets out a non-cumulative list of sanctions. Furthermore, the institution must ensure that its decision is proportionate to the seriousness of the irregularity in question by carrying out that assessment, in accordance with the principle of proportionality, which is an expression of the principle of good faith in the performance of contracts, which was not observed in the present case.

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