# C_2019213EN.01007601.xml

| 24.6.2019 | EN | Official Journal of the European Union | C 213/76 |
| --- | --- | --- | --- |

24.6.2019

EN

Official Journal of the European Union

C 213/76

---

Action brought on 2 May 2019 — SGI Studio Galli Ingegneria v Commission

(Case T-285/19)

(2019/C 213/73)

Language of the case: Italian

Parties

Applicant: SGI Studio Galli Ingegneria Srl (Rome, Italy) (represented by: F. Marini, V. Catenacci and R. Viglietta, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Find and declare that the applicant 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 ‘MARSOL’ project. |
| --- | --- |

—

Find and declare that the applicant 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 ‘MARSOL’ project.

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

—

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. |
| --- | --- |

—

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. |
| --- | --- |

—

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

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

—

Find and declare that the applicant 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. |
| --- | --- |

—

In the alternative, find and declare that the amount to be recovered by the Commission may not exceed EUR 100 044.99.

| — | 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. |
| --- | --- |

—

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.

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 (i) failure to observe the principle of contractual good faith, (ii) infringement of the rights of defence during the phase following the close of the investigation, (iii) infringement of the right to an effective remedy within the meaning of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), (iv) infringement of the right to good administration within the meaning of Article 41 of the Charter, (v) infringement of the right of access to documents within the meaning of Article 42 of the Charter, (vi) infringement of Article II.22 of the Grant Agreement and (vii) infringement of Article 1134 of the Belgian Civil Code.






  — | The applicant claims in this regard that the Commission did not take account of its request for a stay of proceedings and for access to OLAF’s investigation file, but instead issued the [initial] debit note and subsequent reminders, despite the fact that the company was not in a position to comment on OLAF’s final report on account of continuing internal problems. Accordingly, the Commission failed to observe the principle of contractual good faith and infringed the [applicant’s] right to an effective defence both during the administrative procedure and before the General Court. |
| --- | --- | --- |

1.

First plea in law, alleging (i) failure to observe the principle of contractual good faith, (ii) infringement of the rights of defence during the phase following the close of the investigation, (iii) infringement of the right to an effective remedy within the meaning of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), (iv) infringement of the right to good administration within the meaning of Article 41 of the Charter, (v) infringement of the right of access to documents within the meaning of Article 42 of the Charter, (vi) infringement of Article II.22 of the Grant Agreement and (vii) infringement of Article 1134 of the Belgian Civil Code.

—

The applicant claims in this regard that the Commission did not take account of its request for a stay of proceedings and for access to OLAF’s investigation file, but instead issued the [initial] debit note and subsequent reminders, despite the fact that the company was not in a position to comment on OLAF’s final report on account of continuing internal problems. Accordingly, the Commission failed to observe the principle of contractual good faith and infringed the [applicant’s] right to an effective defence both during the administrative procedure and before the General Court.

| 2. | Second plea in law, alleging (i) non-existence of the alleged failure to fulfil obligations, (ii) non-existence of the debt claimed by the Commission, (iii) the unlawful and unfounded nature of OLAF’s investigation report and, consequently, of the Commission’s pre-information letter and debit notes, (iv) 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 of the European Parliament and of the Council of 11 September 2013, and (v) an error of assessment as regards the evidence and infringement of Article 1315 of the Belgian Civil Code.






  — | The applicant claims in this regard that all the shortcomings on the basis of which the Commission made the request for recovery are unfounded, as per the documentation presented to the Court. Working time and personnel costs were properly accounted for as regards all the resources assigned to the project and correspond to what was requested of the Commission. There are no overlaps between resources and other funded projects. None of the other alleged shortcomings exist. OLAF’s criticisms on which the Commission bases its request for recovery always refer to other projects. As a result the burden of proof has not been met. |
| --- | --- | --- |

2.

Second plea in law, alleging (i) non-existence of the alleged failure to fulfil obligations, (ii) non-existence of the debt claimed by the Commission, (iii) the unlawful and unfounded nature of OLAF’s investigation report and, consequently, of the Commission’s pre-information letter and debit notes, (iv) 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 of the European Parliament and of the Council of 11 September 2013, and (v) an error of assessment as regards the evidence and infringement of Article 1315 of the Belgian Civil Code.

—

The applicant claims in this regard that all the shortcomings on the basis of which the Commission made the request for recovery are unfounded, as per the documentation presented to the Court. Working time and personnel costs were properly accounted for as regards all the resources assigned to the project and correspond to what was requested of the Commission. There are no overlaps between resources and other funded projects. None of the other alleged shortcomings exist. OLAF’s criticisms on which the Commission bases its request for recovery always refer to other projects. As a result the burden of proof has not been met.

| 3. | Third plea in law, alleging failure to observe the principles of proportionality, fairness and contractual good faith, and infringement of Article II.22 of the Grant Agreement.






  — | The applicant claims in this regard that the Commission failed to observe the principle of proportionality by claiming all of the aid granted to the applicant, despite the fact that the investigation procedure had identified inconsistencies concerning only two professionals assigned to the project. The Commission also claimed all further direct costs other than personnel costs, as well as all indirect costs. |
| --- | --- | --- |

3.

Third plea in law, alleging failure to observe the principles of proportionality, fairness and contractual good faith, and infringement of Article II.22 of the Grant Agreement.

—

The applicant claims in this regard that the Commission failed to observe the principle of proportionality by claiming all of the aid granted to the applicant, despite the fact that the investigation procedure had identified inconsistencies concerning only two professionals assigned to the project. The Commission also claimed all further direct costs other than personnel costs, as well as all indirect costs.

| 4. | Fourth plea in law, alleging, in the alternative, the right to compensation for the unjust enrichment of the European Commission.






  — | According to the applicant, 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. |
| --- | --- | --- |

4.

Fourth plea in law, alleging, in the alternative, the right to compensation for the unjust enrichment of the European Commission.

—

According to the applicant, 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.

---