# C_2021310EN.01001501.xml

| 2.8.2021 | EN | Official Journal of the European Union | C 310/15 |
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2.8.2021

EN

Official Journal of the European Union

C 310/15

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Appeal brought on 14 June 2021 by SGI Studio Galli Ingegneria Srl against the judgment of the General Court (Ninth Chamber) delivered on 14 April 2021 in Case T-285/19, SGI Studio Galli Ingegneria v Commission

(Case C-371/21 P)

(2021/C 310/19)

Language of the case: Italian

Parties

Appellant: SGI Studio Galli Ingegneria Srl (represented by: F.S. Marini, V. Catenacci and R. Viglietta, avvocati)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

set aside the judgment of the General Court (Ninth Chamber), published on 14 April 2021 and notified on the same date, in Case T-285/19, SGI Studio Galli Ingegneria v Commission, and, consequently, grant the forms of order sought by S.G.I. before the General Court, as outlined therein, and, accordingly:

| — | Find and declare that the appellant is not required to pay the sums claimed by the European Commission in Debit Note No 3241902288 received on 22 February 2019 and, most recently, in the note (Ref. Ares(2019)2858540) received on 29 April 2019, which are claimed in respect of recovery of aid and liquidated damages for Studio Galli Ingegneria’s alleged failure to fulfil obligations under Grant Agreement No 619120 concerning the funding of the ‘MARSOL’ project. |
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Find and declare that the appellant is not required to pay the sums claimed by the European Commission in Debit Note No 3241902288 received on 22 February 2019 and, most recently, in the note (Ref. Ares(2019)2858540) received on 29 April 2019, which are claimed in respect of recovery of aid and liquidated damages for Studio Galli Ingegneria’s alleged failure to fulfil obligations under Grant Agreement No 619120 concerning the funding of the ‘MARSOL’ project.

| — | Find and declare that the shortcomings alleged by the Commission are non-existent. |
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Find and declare that the shortcomings alleged by the Commission are non-existent.

| — | Find and declare that the pre-information letter of 19 December 2018, the OLAF investigation report, the debit note of 22 February 2019, the subsequent reminder of 2 April 2019 and the final note (Ref. Ares(2019)2858540) of 29 April 2019 re-determining the amount claimed and rejecting SGI’s further requests are unlawful, invalid, and in any event unfounded. |
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Find and declare that the pre-information letter of 19 December 2018, the OLAF investigation report, the debit note of 22 February 2019, the subsequent reminder of 2 April 2019 and the final note (Ref. Ares(2019)2858540) of 29 April 2019 re-determining the amount claimed and rejecting SGI’s further requests are unlawful, invalid, and in any event unfounded.

| — | Find and declare that the debt claimed by the Commission is non-existent. |
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Find and declare that the debt claimed by the Commission is non-existent.

| — | Find and declare that the appellant is entitled to the aid that was paid by the Commission in accordance with Grant Agreement No 619120 concerning the ‘MARSOL’ project. |
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Find and declare that the appellant is entitled to the aid that was paid by the Commission in accordance with Grant Agreement No 619120 concerning the ‘MARSOL’ project.

| — | In the alternative, find and declare that the amount to be recovered by the Commission may not exceed EUR 100 044,99, as set out in the third plea in law. |
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In the alternative, find and declare that the amount to be recovered by the Commission may not exceed EUR 100 044,99, as set out in the third plea in law.

| — | In the further alternative, order the Commission to pay SGI the costs it incurred in executing the ‘MARSOL’ project, in accordance with the provisions on unjust enrichment. |
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In the further alternative, order the Commission to pay SGI the costs it incurred in executing the ‘MARSOL’ project, in accordance with the provisions on unjust enrichment.

Grounds of appeal and main arguments

| 1. | First ground of appeal. Unlawful nature of the judgment in so far as it rejected the first plea in law. Infringement/misapplication of Articles 41, 42 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Infringement of the principle of contractual good faith also under Article 1134 of the Belgian Civil Code.

  The appellant challenges the judgment of the General Court in so far as it declares that the Commission did not infringe the rights under Articles 41, 42 and 47 of the Charter and the principle of contractual good faith by failing to take account of the appellant’s request for a stay of proceedings and for access to OLAF’s investigation file. It claims, on the contrary, that since the company was not in a position to comment on OLAF’s final report on account of continuing internal problems, the effectiveness of those rights were impaired, both during the administrative procedure and, consequently, before the General Court. |
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1.

First ground of appeal. Unlawful nature of the judgment in so far as it rejected the first plea in law. Infringement/misapplication of Articles 41, 42 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Infringement of the principle of contractual good faith also under Article 1134 of the Belgian Civil Code.

The appellant challenges the judgment of the General Court in so far as it declares that the Commission did not infringe the rights under Articles 41, 42 and 47 of the Charter and the principle of contractual good faith by failing to take account of the appellant’s request for a stay of proceedings and for access to OLAF’s investigation file. It claims, on the contrary, that since the company was not in a position to comment on OLAF’s final report on account of continuing internal problems, the effectiveness of those rights were impaired, both during the administrative procedure and, consequently, before the General Court.

| 2. | Second ground of appeal. Unlawful nature of the judgment in so far as it rejected the second plea in law. Infringement/misapplication of Article 317 TFEU, Article 172a(1) of Regulation No 2342/2002, (1)
  Article 31(3)(a) and (c) of Regulation No 1906/2006, (2)
  Articles II.5 and II.14 of the general conditions of the grant agreement. Failure to observe the principles of the presumption of innocence, the burden of proof, and fairness as set out in Regulation (EU, Euratom) No 883/2013 (3)
  of the European Parliament and of the Council of 11 September 2013. Error of assessment as regards the evidence in breach of Article 1315 of the Belgian Civil Code.

  The appellant challenges the judgment in so far as, by rejecting the second plea in law, the General Court concluded that the appellant did not demonstrate the eligibility of the direct and indirect personnel costs, either before OLAF and the Commission, or before the General Court. The appellant claims, on the contrary, that the General Court failed to take into account the fact that OLAF’s allegations were not related to the project at issue but to other funded projects, and thus it misapplied the principles of innocence and the burden of proof. In addition, the timesheets produced before the General Court should have been regarded as sufficient evidence, given the absence of other allegations and the confirmed conclusion of the project, to affirm the eligibility of the costs incurred and claimed from the Commission. |
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2.

Second ground of appeal. Unlawful nature of the judgment in so far as it rejected the second plea in law. Infringement/misapplication of Article 317 TFEU, Article 172a(1) of Regulation No 2342/2002, (1)
  Article 31(3)(a) and (c) of Regulation No 1906/2006, (2)
  Articles II.5 and II.14 of the general conditions of the grant agreement. Failure to observe the principles of the presumption of innocence, the burden of proof, and fairness as set out in Regulation (EU, Euratom) No 883/2013 (3)
  of the European Parliament and of the Council of 11 September 2013. Error of assessment as regards the evidence in breach of Article 1315 of the Belgian Civil Code.

The appellant challenges the judgment in so far as, by rejecting the second plea in law, the General Court concluded that the appellant did not demonstrate the eligibility of the direct and indirect personnel costs, either before OLAF and the Commission, or before the General Court. The appellant claims, on the contrary, that the General Court failed to take into account the fact that OLAF’s allegations were not related to the project at issue but to other funded projects, and thus it misapplied the principles of innocence and the burden of proof. In addition, the timesheets produced before the General Court should have been regarded as sufficient evidence, given the absence of other allegations and the confirmed conclusion of the project, to affirm the eligibility of the costs incurred and claimed from the Commission.

| 3. | Third ground of appeal. Unlawful nature of the judgment under appeal in so far as it rejected the third plea in law. Failure to observe the principles of proportionality, fairness and contractual good faith. Infringement of Article 5(4) TFEU. Infringement of Article II.22 of the Grant Agreement.

  The appellant challenges the judgment in so far as, by rejecting the third plea in law, the General Court held that the Commission did not fail to observe the principle of proportionality by claiming all of the direct and indirect personnel costs. The appellant claims, on the contrary, that since the investigation procedure had identified inconsistencies concerning only two professionals assigned to the project, solely the costs relating to those two professionals should have been claimed. This is also the case in view of the confirmed completion of the project and the verification of the costs by an external expert, which was accepted by the Commission. Accordingly, again pursuant to the principle of proportionality, the General Court should have accepted the request in the alternative on the determination of the sum to be recovered. |
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3.

Third ground of appeal. Unlawful nature of the judgment under appeal in so far as it rejected the third plea in law. Failure to observe the principles of proportionality, fairness and contractual good faith. Infringement of Article 5(4) TFEU. Infringement of Article II.22 of the Grant Agreement.

The appellant challenges the judgment in so far as, by rejecting the third plea in law, the General Court held that the Commission did not fail to observe the principle of proportionality by claiming all of the direct and indirect personnel costs. The appellant claims, on the contrary, that since the investigation procedure had identified inconsistencies concerning only two professionals assigned to the project, solely the costs relating to those two professionals should have been claimed. This is also the case in view of the confirmed completion of the project and the verification of the costs by an external expert, which was accepted by the Commission. Accordingly, again pursuant to the principle of proportionality, the General Court should have accepted the request in the alternative on the determination of the sum to be recovered.

| 4. | Fourth ground of appeal. Unlawful nature of the judgment in so far as it rejected the fourth plea in law. Infringement and/or misapplication of Article 2(b) of Council Regulation No 58/2003 (4)
  of 19 December 2002 and of the Grant Agreement. Failure to state reasons and contradictory nature of the judgment in so far as it conflicts with the earlier case-law of the General Court and the Court of Justice relating to unjust enrichment.

  The appellant challenges the judgment in so far as, by rejecting the fourth plea in law, the General Court denied the appellant its right to deduct the aid granted in respect of direct and indirect personnel costs, which resulted in unjust enrichment of the Commission. Since the conditions for bringing a claim — namely the enrichment of one of the parties to the contract and the impoverishment of the other, and a causal link between that enrichment and impoverishment — are satisfied in the present case, the finding of the General Court is unlawful. |
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4.

Fourth ground of appeal. Unlawful nature of the judgment in so far as it rejected the fourth plea in law. Infringement and/or misapplication of Article 2(b) of Council Regulation No 58/2003 (4)
  of 19 December 2002 and of the Grant Agreement. Failure to state reasons and contradictory nature of the judgment in so far as it conflicts with the earlier case-law of the General Court and the Court of Justice relating to unjust enrichment.

The appellant challenges the judgment in so far as, by rejecting the fourth plea in law, the General Court denied the appellant its right to deduct the aid granted in respect of direct and indirect personnel costs, which resulted in unjust enrichment of the Commission. Since the conditions for bringing a claim — namely the enrichment of one of the parties to the contract and the impoverishment of the other, and a causal link between that enrichment and impoverishment — are satisfied in the present case, the finding of the General Court is unlawful.

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(1)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1).

(2)  Regulation (EC) No 1906/2006 of the European Parliament and of the Council of 18 December 2006 laying down the rules for the participation of undertakings, research centres and universities in actions under the Seventh Framework Programme and for the dissemination of research results (2007-2013) (OJ 2006 L 391, p. 1).

(3)  Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013 L 248, p. 1).

(4)  Council Regulation (EC) No 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (OJ 2003 L 11, p. 1).

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