# C_2022389EN.01001101.xml

| 10.10.2022 | EN | Official Journal of the European Union | C 389/11 |
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10.10.2022

EN

Official Journal of the European Union

C 389/11

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Action brought on 30 June 2022 — Glonatech v REA

(Case T-409/22)

(2022/C 389/13)

Language of the case: English

Parties

Applicant: Global Nanotechnologies AE schediasmou anaptyxis paraskevis kai emporias ylikon nanotechnologies (Glonatech) (Lamía, Greece) (represented by: N. Scandamis, lawyer)

Defendant: European Research Executive Agency

Form of order sought

The applicant claims that the Court should:

| — | declare that the applicant correctly fulfilled her contractual obligations and is fully entitled to payment of claimed costs of the SANAD Project and set aside Debit Note No 3242113938 as infringing applicable laws by declaring the rejected costs as ineligible; and |
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declare that the applicant correctly fulfilled her contractual obligations and is fully entitled to payment of claimed costs of the SANAD Project and set aside Debit Note No 3242113938 as infringing applicable laws by declaring the rejected costs as ineligible; and

| — | order the REA to pay the costs of the proceedings before this Court, or, in the event that the orders sought in the present action are not granted, refrain from ordering the applicant to pay the costs in view of the complexity of the present case. |
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order the REA to pay the costs of the proceedings before this Court, or, in the event that the orders sought in the present action are not granted, refrain from ordering the applicant to pay the costs in view of the complexity of the present case.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the ‘Final Audit Report’ bearing on applicant’s secondees allowances granted for knowledge sharing and inter-sectoral mobility should be deemed as falling outside the scope of the Agreement (GA) for having been engaged by REA as exceptional in view of a flat-rate financing proper to output and results based research and thus not subject to ex-post verification but also for having been conducted as visibly inquisitorial in suspecting systematic errors which however are deemed of no systematic nature, thus drawing from terms proper to different types of procedure. |
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1.

First plea in law, alleging that the ‘Final Audit Report’ bearing on applicant’s secondees allowances granted for knowledge sharing and inter-sectoral mobility should be deemed as falling outside the scope of the Agreement (GA) for having been engaged by REA as exceptional in view of a flat-rate financing proper to output and results based research and thus not subject to ex-post verification but also for having been conducted as visibly inquisitorial in suspecting systematic errors which however are deemed of no systematic nature, thus drawing from terms proper to different types of procedure.

| 2. | Second plea in law, alleging that in the alternative, if such control were to be deemed as falling within the scope of the GA, it should have been undertaken as ex ante verification by the authorising officer as based on evidence drawn from electronic inspection mechanisms established at the hosting organisation (KU), specifically entrusted in collecting secondment data in own premises, and monitored by the Defendant. In omitting to do so, the latter infringed the terms of the GA in correctly assessing under applicable laws. |
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2.

Second plea in law, alleging that in the alternative, if such control were to be deemed as falling within the scope of the GA, it should have been undertaken as ex ante verification by the authorising officer as based on evidence drawn from electronic inspection mechanisms established at the hosting organisation (KU), specifically entrusted in collecting secondment data in own premises, and monitored by the Defendant. In omitting to do so, the latter infringed the terms of the GA in correctly assessing under applicable laws.

| 3. | Third plea in law, alleging that even if the audit were to be deemed within the scope of the contract and the burden of proof incumbent, as a matter of principle, on the applicant, the rejection of the secondment costs, during an ex post verification for systematic errors improper to such verification as referring to flat rate financing, was reached in infringement of the principle of good faith not only in applying the Financial Regulation 2018/1046 (1), in force at the time of the audit (article 181 (2)), but also in performing under contract in general: by an unlawful discretion, the auditing entity denied the sufficiency of a performance audit for flat rate financing so as to assess it upon certified and auditable historical data of the beneficiary, and, instead, she privileged types of evidence referring to generating events of the activities covered by flat rate financing. Such inversion in the order of proofs deprived the applicant of the right to interpret its contractual obligations to its benefit in a legal context of vagueness of terms as created by the then applicable Financial Regulation (966/2012) (2) as well as by the contradictory behaviour of the defendant in monitoring the implementation of the GA. |
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3.

Third plea in law, alleging that even if the audit were to be deemed within the scope of the contract and the burden of proof incumbent, as a matter of principle, on the applicant, the rejection of the secondment costs, during an ex post verification for systematic errors improper to such verification as referring to flat rate financing, was reached in infringement of the principle of good faith not only in applying the Financial Regulation 2018/1046 (1), in force at the time of the audit (article 181 (2)), but also in performing under contract in general: by an unlawful discretion, the auditing entity denied the sufficiency of a performance audit for flat rate financing so as to assess it upon certified and auditable historical data of the beneficiary, and, instead, she privileged types of evidence referring to generating events of the activities covered by flat rate financing. Such inversion in the order of proofs deprived the applicant of the right to interpret its contractual obligations to its benefit in a legal context of vagueness of terms as created by the then applicable Financial Regulation (966/2012) (2) as well as by the contradictory behaviour of the defendant in monitoring the implementation of the GA.

| 4. | Fourth plea in law, alleging that on properly considering the variety of concurring evidence, internal as external, but also the misleading orientations before and during implementation, mismatches and lacunae detected in evidence should be disregarded or, at least, brought to their appropriate dimension but not lead to full rejection for being systematic, in particular where they should be ignored as immaterial or negligible in effect according to the general principle of proportionality. |
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4.

Fourth plea in law, alleging that on properly considering the variety of concurring evidence, internal as external, but also the misleading orientations before and during implementation, mismatches and lacunae detected in evidence should be disregarded or, at least, brought to their appropriate dimension but not lead to full rejection for being systematic, in particular where they should be ignored as immaterial or negligible in effect according to the general principle of proportionality.

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(1)  Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012, OJ L 193, 2018, p. 1.

(2)  Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002, OJ L 298, 2012, p. 1.

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