# C_2019399EN.01008401.xml

| 25.11.2019 | EN | Official Journal of the European Union | C 399/84 |
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25.11.2019

EN

Official Journal of the European Union

C 399/84

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Action brought on 26 September 2019 — Elevolution — Engenharia v Commission

(Case T-652/19)

(2019/C 399/103)

Language of the case: Portuguese

Parties

Applicant: Elevolution — Engenharia SA (Amadora, Portugal) (represented by: M. Marques Mendes, R. Campos, A. Dias Henriques, M. Troncoso Ferrer and C. García Fernández, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | uphold the action and annul the decision in its entirety; |
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uphold the action and annul the decision in its entirety;

| — | order the Commission to pay the costs of the present proceedings. |
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order the Commission to pay the costs of the present proceedings.

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 an error in the European Commission’s decision of 12 July 2019, taken by the current Director of the Directorate-General for International Cooperation and Development (DEVCO), document Ares(2019)4611765 — 16/07/2019, which excludes the applicant, for a period of three years, from public procurement and from grant award procedures financed by the European Development Found (EDF) under Council Regulation (EU) 2015/323, and ordering the publication of the factual circumstances of that exclusion information on the Commission’s website: | The applicant submits that the Commission erred in its decision as regards the factual circumstances, specifically as regards the delays in the execution of the work, which cannot be attributed to the applicant. The conciliation procedure provided for under the contract should be concluded, and the applicant cannot be criticised for the failure to set up an arbitration tribunal. |
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1.

First plea in law, alleging an error in the European Commission’s decision of 12 July 2019, taken by the current Director of the Directorate-General for International Cooperation and Development (DEVCO), document Ares(2019)4611765 — 16/07/2019, which excludes the applicant, for a period of three years, from public procurement and from grant award procedures financed by the European Development Found (EDF) under Council Regulation (EU) 2015/323, and ordering the publication of the factual circumstances of that exclusion information on the Commission’s website:

The applicant submits that the Commission erred in its decision as regards the factual circumstances, specifically as regards the delays in the execution of the work, which cannot be attributed to the applicant. The conciliation procedure provided for under the contract should be concluded, and the applicant cannot be criticised for the failure to set up an arbitration tribunal.

| 2. | Second plea in law, alleging a failure to provide adequate reasoning and infringement of the law, specifically Article 143(5) of Regulation (EU, Euratom) 2018/1046 and Article 41 of the Charter of Fundamental Rights of the European Union and the right to good administration: | The decision is vitiated by a failure to provide adequate reasoning because it does not enable the applicant to ascertain the analysis and conclusions of the compulsory prior adversarial procedure conducted by the panel under the Financial Regulation. In disregarding the prior adversarial procedure by not making any mention of its outcome, the decision also infringes the law by undermining and infringing Article 143 of the Financial Regulation, in particular paragraph 5, and it undermines the right to good administration provided for in Article 41 of the Charter of Fundamental Rights of the European Union. |
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2.

Second plea in law, alleging a failure to provide adequate reasoning and infringement of the law, specifically Article 143(5) of Regulation (EU, Euratom) 2018/1046 and Article 41 of the Charter of Fundamental Rights of the European Union and the right to good administration:

The decision is vitiated by a failure to provide adequate reasoning because it does not enable the applicant to ascertain the analysis and conclusions of the compulsory prior adversarial procedure conducted by the panel under the Financial Regulation. In disregarding the prior adversarial procedure by not making any mention of its outcome, the decision also infringes the law by undermining and infringing Article 143 of the Financial Regulation, in particular paragraph 5, and it undermines the right to good administration provided for in Article 41 of the Charter of Fundamental Rights of the European Union.

| 3. | Third plea in law, alleging infringement of Article 109(1)(b) (up to 1 January 2016) and Article 106(1)(e) (as of 1 January 2016), and subsequently of Article 47 of the Charter of Fundamental Rights: | For the purposes of the decision whether or not to exclude the applicant from the public procurement and grants procedures governed by Council Regulation (EU) 2018/1877, the Commission is simultaneously judge and prosecutor. In a situation where the issue whether there is a breach of contract is yet to be determined, taking into consideration only the assertions of the Commission and/or the main contractor, and excluding those of the applicant, results in an infringement of Article 47 of the Charter of Fundamental Rights, because it infringes the principle of equality of arms. |
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3.

Third plea in law, alleging infringement of Article 109(1)(b) (up to 1 January 2016) and Article 106(1)(e) (as of 1 January 2016), and subsequently of Article 47 of the Charter of Fundamental Rights:

For the purposes of the decision whether or not to exclude the applicant from the public procurement and grants procedures governed by Council Regulation (EU) 2018/1877, the Commission is simultaneously judge and prosecutor. In a situation where the issue whether there is a breach of contract is yet to be determined, taking into consideration only the assertions of the Commission and/or the main contractor, and excluding those of the applicant, results in an infringement of Article 47 of the Charter of Fundamental Rights, because it infringes the principle of equality of arms.

| 4. | Fourth plea in law, alleging infringement of Article 136(3) of the Finance Regulation and the principle of proportionality as laid down in Article 49 of the Charter of Fundamental Rights: | The Commission imposed the heaviest penalty provided for in Article 106(14)(c) of Regulation No 966/2012, as amended by Regulation 2015/1929, which is also the heaviest penalty provided for in Article 139 of the Financial Regulation. Bearing in mind all the matters of fact, and bearing in mind that the issue whether the applicant was in serious breach of the contract is an issue which is yet to be determined by a court, the imposition of the heaviest penalty provided for under Article 106(14)(c) of Regulation No 966/2012 implies an infringement of the principle of proportionality laid down in Article 49(3) of the Charter of Fundamental Rights. |
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4.

Fourth plea in law, alleging infringement of Article 136(3) of the Finance Regulation and the principle of proportionality as laid down in Article 49 of the Charter of Fundamental Rights:

The Commission imposed the heaviest penalty provided for in Article 106(14)(c) of Regulation No 966/2012, as amended by Regulation 2015/1929, which is also the heaviest penalty provided for in Article 139 of the Financial Regulation. Bearing in mind all the matters of fact, and bearing in mind that the issue whether the applicant was in serious breach of the contract is an issue which is yet to be determined by a court, the imposition of the heaviest penalty provided for under Article 106(14)(c) of Regulation No 966/2012 implies an infringement of the principle of proportionality laid down in Article 49(3) of the Charter of Fundamental Rights.

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