# C_2020414EN.01003701.xml

| 30.11.2020 | EN | Official Journal of the European Union | C 414/37 |
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30.11.2020

EN

Official Journal of the European Union

C 414/37

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Action brought on 21 September 2020 — Genekam Biotechnology v Commission

(Case T-579/20)

(2020/C 414/58)

Language of the case: German

Parties

Applicant: Genekam Biotechnology AG (Duisburg, Germany) (represented by: S. Hertwig, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the defendant’s Decision C(2020) 5548 final of 7 August 2020 in so far as it claims more than EUR 39 827,83 plus default interest; |
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annul the defendant’s Decision C(2020) 5548 final of 7 August 2020 in so far as it claims more than EUR 39 827,83 plus default interest;

| — | order the defendant to pay the costs of the proceedings. |
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order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

This action seeks the annulment of Commission Decision C(2020) 5548 final of 7 August 2020 on the recovery of the amount of EUR 119 659,55 owed by Genekam Biotechnology AG.

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

| 1. | First plea in law, alleging infringement of the Treaties under the second paragraph of Article 263 TFEU on the ground that the European Commission lacked standing.






  — | The European Commission has no standing. As is apparent from Commission Enforcement Decision C(2020) 5548 final of 7 August 2020, as well as Annex II, Part B, Section 2, II.19.3 of the Grant Agreement, it is acting on behalf of the Participant Guarantee Fund and/or as its ‘executive agent’. Thus, the European Commission is not itself entitled to enforce the claim and therefore also not entitled to request a payment in itself. |
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1.

First plea in law, alleging infringement of the Treaties under the second paragraph of Article 263 TFEU on the ground that the European Commission lacked standing.

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The European Commission has no standing. As is apparent from Commission Enforcement Decision C(2020) 5548 final of 7 August 2020, as well as Annex II, Part B, Section 2, II.19.3 of the Grant Agreement, it is acting on behalf of the Participant Guarantee Fund and/or as its ‘executive agent’. Thus, the European Commission is not itself entitled to enforce the claim and therefore also not entitled to request a payment in itself.

| 2. | Second plea in law, alleging infringement of the Treaties under the second paragraph of Article 263 TFEU on the ground of breach of the principle of legality.






  — | The Guarantee Fund cannot avail itself of any basis to adopt the enforcement decision in dispute. That is because Article 299 TFEU at most authorises the Commission, but not the Guarantee Fund to act by means of an enforceable decision. The applicant further alleges that Article 299 TFEU, taken separately, is not a sufficient basis for the adoption of enforceable decisions. That is because the authority of the institutions concerned to adopt such an act must be derived from other provisions. |
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2.

Second plea in law, alleging infringement of the Treaties under the second paragraph of Article 263 TFEU on the ground of breach of the principle of legality.

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The Guarantee Fund cannot avail itself of any basis to adopt the enforcement decision in dispute. That is because Article 299 TFEU at most authorises the Commission, but not the Guarantee Fund to act by means of an enforceable decision. The applicant further alleges that Article 299 TFEU, taken separately, is not a sufficient basis for the adoption of enforceable decisions. That is because the authority of the institutions concerned to adopt such an act must be derived from other provisions.

| 3. | Third plea in law, alleging infringement of the Treaties under the second paragraph of Article 263 TFEU on the ground that there was no claim for repayment under Annex II, Part B, Section 2, II.20 of the Grant Agreement.






  — | According to the provisions of the Grant Agreement, the defendant is not entitled to recover the expenditure notified by the applicant, incurred in the first year of the project. That is because the costs are eligible and must therefore be recognised. |
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3.

Third plea in law, alleging infringement of the Treaties under the second paragraph of Article 263 TFEU on the ground that there was no claim for repayment under Annex II, Part B, Section 2, II.20 of the Grant Agreement.

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According to the provisions of the Grant Agreement, the defendant is not entitled to recover the expenditure notified by the applicant, incurred in the first year of the project. That is because the costs are eligible and must therefore be recognised.

| — | Nor can it be argued that the applicant, after leaving the FIBROGELNET-project, was not entitled to reimbursement of costs since, on account of numerous breaches of procedure concerning a beneficiary’s leaving the consortium under Annex II, Part B, Section 2, II.35 and seq., the applicant’s participation in the FIBROGELNET-project was not terminated effectively and the coordinator had repeatedly confirmed to the applicant, prior to it allegedly leaving the project, that the costs are eligible expenditure in accordance with Annex II, Part B, Section 2, II.14 of the Grant Agreement. The applicant may therefore lawfully rely on receiving the costs. |
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Nor can it be argued that the applicant, after leaving the FIBROGELNET-project, was not entitled to reimbursement of costs since, on account of numerous breaches of procedure concerning a beneficiary’s leaving the consortium under Annex II, Part B, Section 2, II.35 and seq., the applicant’s participation in the FIBROGELNET-project was not terminated effectively and the coordinator had repeatedly confirmed to the applicant, prior to it allegedly leaving the project, that the costs are eligible expenditure in accordance with Annex II, Part B, Section 2, II.14 of the Grant Agreement. The applicant may therefore lawfully rely on receiving the costs.

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