# C_2020010EN.01005301.xml

| 13.1.2020 | EN | Official Journal of the European Union | C 10/53 |
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13.1.2020

EN

Official Journal of the European Union

C 10/53

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Action brought on 19 November 2019 — HB v Commission

(Case T–795/19)

(2020/C 10/64)

Language of the case: French

Parties

Applicant: HB (represented by: M. Vandenbussche and L. Levi, 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;

consequently:

| — | annul Commission Decision of 15 October 2019 ordering the reduction of the amount of the contract CARDS/2008/166-429 from EUR 1 199 125 to EUR 0 (zero) and the recovery of all payments, amounting to EUR 1 197 055,86, made under that contract; |
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annul Commission Decision of 15 October 2019 ordering the reduction of the amount of the contract CARDS/2008/166-429 from EUR 1 199 125 to EUR 0 (zero) and the recovery of all payments, amounting to EUR 1 197 055,86, made under that contract;

| — | order the reimbursement of all amounts recovered by the Commission on the basis of that decision, together with late-payment interest at the rate applied by the European Central Bank plus seven points; |
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order the reimbursement of all amounts recovered by the Commission on the basis of that decision, together with late-payment interest at the rate applied by the European Central Bank plus seven points;

| — | order the payment of the last invoice issued by the applicant, in the amount of EUR 437 649,39, together with late-payment interest at the rate applied by the European Central Bank plus seven points, and the release of the bank guarantee in the amount of and compensation for the material harm suffered on account of its late release; |
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order the payment of the last invoice issued by the applicant, in the amount of EUR 437 649,39, together with late-payment interest at the rate applied by the European Central Bank plus seven points, and the release of the bank guarantee in the amount of and compensation for the material harm suffered on account of its late release;

| — | order the symbolic payment of one euro by way of damages, subject to increase; |
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order the symbolic payment of one euro by way of damages, subject to increase;

| — | 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 nine pleas in law.

| 1. | First plea in law, alleging a lack of jurisdiction on the part of the Commission to adopt the contested decision, the absence of a legal basis for that decision and failure to observe the principle of legitimate expectations. The applicant claims in this regard that the Commission did not have jurisdiction to adopt the contested decision, forming a writ of execution for the recovery of the amount allegedly due to it from the applicant, in the absence of an arbitration clause conferring on the EU Courts jurisdiction for contractual disputes between them. |
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1.

First plea in law, alleging a lack of jurisdiction on the part of the Commission to adopt the contested decision, the absence of a legal basis for that decision and failure to observe the principle of legitimate expectations. The applicant claims in this regard that the Commission did not have jurisdiction to adopt the contested decision, forming a writ of execution for the recovery of the amount allegedly due to it from the applicant, in the absence of an arbitration clause conferring on the EU Courts jurisdiction for contractual disputes between them.

| 2. | Second plea in law, alleging that the claim is time-barred and, in any event, infringement of the ‘reasonable period’ rule, of 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) (‘the 2002 Financial Regulation’), of the right to sound administration as enshrined in Article 41 of the Charter of Fundamental Rights of the European Union and of Article 6 of the Charter of Fundamental Rights of the EU (‘the ECHR’). According to the applicant, the Commission’s claim against the applicant is time-barred since the five-year time limit, provided for in Article 73a of the 2002 Financial Regulation, has expired. Article 85b(4) of 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) (‘the 2002 Implementing Regulation’), which concerns grounds for interruption of the limitation period, is also ineffective. In any event, and even if interruption of the limitation period were lawful, the time taken in adopting the contested decision and the debit note accompanying it is manifestly unreasonable and infringes Article 41 of the Charter of Fundamental Rights and Article 6(1) of the ECHR (in so far as it sets out 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’ rule, of 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) (‘the 2002 Financial Regulation’), of the right to sound administration as enshrined in Article 41 of the Charter of Fundamental Rights of the European Union and of Article 6 of the Charter of Fundamental Rights of the EU (‘the ECHR’). According to the applicant, the Commission’s claim against the applicant is time-barred since the five-year time limit, provided for in Article 73a of the 2002 Financial Regulation, has expired. Article 85b(4) of 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) (‘the 2002 Implementing Regulation’), which concerns grounds for interruption of the limitation period, is also ineffective. In any event, and even if interruption of the limitation period were lawful, the time taken in adopting the contested decision and the debit note accompanying it is manifestly unreasonable and infringes Article 41 of the Charter of Fundamental Rights and Article 6(1) of the ECHR (in so far as it sets out a fundamental right which is also a general principle of law).

| 3. | Third plea in law, alleging failure to comply with the judgment of the tribunal de première instance de Bruxelles (Court of First Instance of Brussels, Belgium) of 5 October 2017 and with the adage that ‘criminal law has precedence over administrative law’. The applicant claims that the Commission is bound by the judgment of 5 October 2017, delivered by the Belgian criminal court, which declared the proceedings to be inadmissible for lack of evidence liable to prove the alleged offence. The Commission, who had joined the proceedings before the criminal court as a civil party, having decided to wait for the outcome of the proceedings in Belgium before adopting the recovery decision, is bound by that outcome and the findings of the national court, even if that judgment did not have the force of res judicata as regards the Commission. |
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3.

Third plea in law, alleging failure to comply with the judgment of the tribunal de première instance de Bruxelles (Court of First Instance of Brussels, Belgium) of 5 October 2017 and with the adage that ‘criminal law has precedence over administrative law’. The applicant claims that the Commission is bound by the judgment of 5 October 2017, delivered by the Belgian criminal court, which declared the proceedings to be inadmissible for lack of evidence liable to prove the alleged offence. The Commission, who had joined the proceedings before the criminal court as a civil party, having decided to wait for the outcome of the proceedings in Belgium before adopting the recovery decision, is bound by that outcome and the findings of the national court, even if that judgment did not have the force of res judicata as regards the Commission.

| 4. | Fourth plea in law, alleging that the contested decision is vitiated by manifest errors of assessment. The applicant claims in this regard that the acts complained of are manifestly not established and there are manifestly no irregularities, especially not serious ones. The contested decision is based on two OLAF reports; however the complaints made by the defendant are not established. |
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4.

Fourth plea in law, alleging that the contested decision is vitiated by manifest errors of assessment. The applicant claims in this regard that the acts complained of are manifestly not established and there are manifestly no irregularities, especially not serious ones. The contested decision is based on two OLAF reports; however the complaints made by the defendant are not established.

| 5. | Fifth plea in law, alleging breach of the instructions to tenderers and of Article 103 of the 2002 Financial Regulation. The applicant takes the view that, among the complaints made by the defendant against the applicant, none of them concern the applicant having obtained confidential information, entered into an unlawful agreement with a competitor, influenced the evaluation committee or the contracting authority in the examination, clarification, evaluation or comparison of the bids. Therefore, neither the conditions of Article 130 of the 2002 Financial Regulation nor those of Article 13(a) of the instructions for tenderers are satisfied. |
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5.

Fifth plea in law, alleging breach of the instructions to tenderers and of Article 103 of the 2002 Financial Regulation. The applicant takes the view that, among the complaints made by the defendant against the applicant, none of them concern the applicant having obtained confidential information, entered into an unlawful agreement with a competitor, influenced the evaluation committee or the contracting authority in the examination, clarification, evaluation or comparison of the bids. Therefore, neither the conditions of Article 130 of the 2002 Financial Regulation nor those of Article 13(a) of the instructions for tenderers are satisfied.

| 6. | Sixth plea in law, alleging infringement of the rights of the defence on the ground that the applicant’s right to be heard was breached. |
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6.

Sixth plea in law, alleging infringement of the rights of the defence on the ground that the applicant’s right to be heard was breached.

| 7. | Seventh plea in law, alleging failure to observe the principle of sound administration, the principle of performance of contracts in good faith and the principle of the prohibition of abuse of rights. The applicant claims in this regard that the Commission did not act with care or impartially. |
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7.

Seventh plea in law, alleging failure to observe the principle of sound administration, the principle of performance of contracts in good faith and the principle of the prohibition of abuse of rights. The applicant claims in this regard that the Commission did not act with care or impartially.

| 8. | Eighth plea in law, alleging that Article 103 of the 2002 Financial Regulation is unlawful, in so far as that article breaches the general principle of prohibition of unjust enrichment. Article 103 of the 2002 Financial Regulation enables the Commission to recover all amounts paid during the entirety of the execution of the contract even if it has been fully executed by the contractor. Under Article 103 of the 2002 Financial Regulation the Commission may thus benefit from all the services provided by the contractor without any payment being due to that contractor. Article 103 must be declared unlawful in so far as it allows the Commission to improve its assets, without justification, to the detriment to the assets of the contractor. |
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8.

Eighth plea in law, alleging that Article 103 of the 2002 Financial Regulation is unlawful, in so far as that article breaches the general principle of prohibition of unjust enrichment. Article 103 of the 2002 Financial Regulation enables the Commission to recover all amounts paid during the entirety of the execution of the contract even if it has been fully executed by the contractor. Under Article 103 of the 2002 Financial Regulation the Commission may thus benefit from all the services provided by the contractor without any payment being due to that contractor. Article 103 must be declared unlawful in so far as it allows the Commission to improve its assets, without justification, to the detriment to the assets of the contractor.

| 9. | Ninth plea in law, alleging, in the alternative, infringement of Article 103 of the 2002 Financial Regulation and failure to observe the principle of proportionality. According to the applicant, the Commission’s evaluation exercise must be carried out in accordance with Article 103 of the 2002 Financial Regulation. That means that the Commission may not apply several sanctions, since Article 103 sets out a list of sanctions which are not cumulative. In addition, that evaluation exercise must be carried out in observance of the principle of proportionality, the Commission having to ensure that the decision is proportional to the gravity of the irregularity in question. That proportionality requirement constitutes an expression of the principle of good faith which must be observed in the execution of contracts, yet was not in the present case. |
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9.

Ninth plea in law, alleging, in the alternative, infringement of Article 103 of the 2002 Financial Regulation and failure to observe the principle of proportionality. According to the applicant, the Commission’s evaluation exercise must be carried out in accordance with Article 103 of the 2002 Financial Regulation. That means that the Commission may not apply several sanctions, since Article 103 sets out a list of sanctions which are not cumulative. In addition, that evaluation exercise must be carried out in observance of the principle of proportionality, the Commission having to ensure that the decision is proportional to the gravity of the irregularity in question. That proportionality requirement constitutes an expression of the principle of good faith which must be observed in the execution of contracts, yet was not in the present case.

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