Appeal brought on 18 December 2018 by Terna SpA against the judgment of the General Court (Fifth Chamber) delivered on 18 October 2018 in Case T-387/16 Terna v Commission

(Case C-812/18 P)

(2019/C 72/14)

Language of the case: Italian

Parties

Appellant: Terna SpA (represented by: F. Covone, A. Police, L. Di Via, D. Carria, F. Degni, avvocati)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside and/or vary the judgment of the General Court of the European Union (Fifth Chamber) of 18 October 2018 delivered in Case T-387/16 and, consequently, principally, annul the decision of the European Commission reference ENER/SRD.3/JCM/cID (2016)2952913 of 23 May 2016, which merely confirms the previous measure Move.srd.3.dir(2015)2669621 of 6 July 2015, together with the measure of the European Commission reference SRD.3/JCM/cl/D(2016)4477388 of 14 June 2016 communicating Debit Note No 3241608548 ordering payment of EUR 494 871.39 by 28 July 2016, and consequently annulling the decision of the European Commission reference Move.srd3.dir(2015)2669621 of 6 July 2015, in so far as that decision does not allow reimbursement of the costs incurred by Terna in connection with Project No 2009-E255/09-ENER/09-TEN-E-S 12.564583 and Project No 2007-E221/07/2007-TREN/07TEN-E-S 07.91403 and imposes an obligation to repay the sums granted in connection with those projects in the amounts set out in the table appended to the contested measure;

— in the alternative, annul the decision of the European Commission reference ENER/SRD.3/JCM/cID (2016)2952913 of 23 May 2016, together with the decision of the European Commission reference Move.srd3.dir(2015)2669621 of 6 July 2015, in so far as that decision does not provide for a reduction in the reimbursement of the costs incurred by Terna in connection with Project No 2009-E255/09-ENER/09-TEN-E-S 12.564583 and Project No 2007-E221/07/2007-TREN/07/TEN-E-S 07.91.403 commensurate with the profits made by CESI S.p.A;

— order the European Commission to pay the costs.

Grounds of appeal and main arguments

First ground of appeal: the judgment under appeal is incorrect in so far as the General Court ruled that there was no error in the classification of the relationship between the tasks and framework agreements entered into by Terna and CESI. — Misapplication of Articles 14 and 37 of Directive 2004/17/EC (1) in connection with the subcontracting of services — Failure to conduct inquiries and absence of adequate reasons in the contested measure. — Misapplication of Article III.7, paragraphs 1, 4 and 6, of Annex III to Decision D/207630 of 2008 and misapplication of Article III.3.7, paragraphs 1, 4 and 6, of Annex III to Decision D/7181 of 2010 resulting from the unjustifiable reduction in reimbursement for projects on the ground of an alleged failure on the part of Terna properly to apply formal procurement procedures. — Failure to conduct inquiries and absence of adequate reasons.

Second ground of appeal: the judgment under appeal is incorrect in so far as the General Court ruled that there were no technical reasons justifying the award of contracts to a particular operator without prior publication of a contract notice. — Misapplication of Article 40(3)(c) of Directive 2004/17/EC.

Third ground of appeal: the judgment under appeal is incorrect in so far as the General Court ruled that the principle of legitimate expectations had not been infringed. — Misapplication of Directive 2004/17/EC and failure to have regard for Terna’s legitimate expectations by reason of the fact that the claims for reimbursement relating to the contracts forming part of the framework agreement were disallowed as ineligible, notwithstanding the publication of the contract award notice in the Official Journal of the European Union and the irrelevance of some of the amounts for the purposes of the application of European procedures.

Fourth ground of appeal: the judgment under appeal is incorrect in that it infringes the principles of reasonableness and proportionality by reason of the decision to disallow the claims for reimbursement in their entirety, rather than reducing them on a proportionate basis.

(1) Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1).