Judgment of the General Court (Fourth Chamber) of 25 January 2017 —

ANKO v Commission

(Case T‑768/14)

(Arbitration clause — Grant agreement concluded under the Seventh Framework Programme for research, technological development and demonstration activities (2007-2013) — Pocemon project — Eligible costs — Counterclaim — Repayment of amounts paid — Default interest)

1. Judicial proceedings—General Court seised under an arbitration clause—Contract subject to national law—Applicability of national substantive law—Inapplicability of national rules on jurisdiction—National rules on evidence falling under substantive law (Art. 272 TFEU) (see paras 41, 42)

2. EU budget—EU financial assistance—Obligation on the beneficiary to comply with the conditions for grant of the assistance—Establishment of an audit report by the Commission—Audit report not constituting a document preparatory to a measure adversely affecting the applicant—Inapplicability of the audi alteram partem principle and the right to be heard (Arts 288 TFEU and 299 TFEU) (see paras 47-49)

3. EU budget—EU financial assistance—Obligation on the beneficiary to comply with the conditions for grant of the assistance—Financing covering only expenses actually incurred—Demonstration that the expenses actually incurred—Burden of proof (Art. 317 TFEU) (see paras 57-59, 133, 134)

4. EU budget—EU financial assistance—Obligation on the beneficiary to comply with the conditions for grant of the assistance—Financing covering only expenses actually incurred—Demonstration that the expenses actually incurred—Staff costs—Non-compliance with obligation to produce reliable time-sheets in order to justify the staff costs declared by way of implementation of the agreements—Ineligible expenses (see paras 77-97)

5. EU budget—EU financial assistance—Obligation on the beneficiary to comply with the conditions for grant of the assistance—Financing covering only expenses actually incurred—Demonstration that the expenses actually incurred—Financial audit drawn up by the Commission—Refusal to grant access to the information requested by the auditors—Infringement of the conditions for granting assistance (see paras 115-124)

6. EU budget—EU financial assistance—Obligation on the beneficiary to comply with the conditions for grant of the assistance—Financing covering only expenses actually incurred—Proceedings brought by the Commission for recovery of advances made in the context of the assistance—Demand for recovery arising from stipulations of the agreements—No breach of principle of proportionality (see para. 140)

7. EU budget—EU financial assistance—Obligation on the beneficiary to comply with the conditions for grant of the assistance—Financing covering only expenses actually incurred—Proceedings brought by the Commission for recovery of advances made in the context of the assistance—Account taken of the conclusions of a final audit report (see para. 148)

Re:

First, application based on Article 272 TFEU and seeking a declaration that the Commission’s demand for reimbursement of an amount paid to the applicant under agreement No 216088 to fund the project entitled ‘Point Of CarE MONitoring and Diagnostics for Autoimmune Diseases’, concluded under the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007-2013) is unfounded, and, secondly, a counterclaim seeking an order against the applicant for repayment of an amount wrongfully paid under that agreement.

Operative part

The Court:

1. Dismisses the action brought by ANKO AE Antiprosopeion, Emporiou kai Viomichanias;

2. Orders ANKO AE Antiprosopeion, Emporiou kai Viomichanias to pay to the European Commission the amount of EUR 377 733.93, plus default interest from 3 May 2014 and until full payment of that amount, at the rate of 3.75%;