Action brought on 21 December 2020 — Green Power Technologies v Commission

(Case T-753/20)

(2021/C 53/76)

Language of the case: Spanish

Parties

Applicant: Green Power Technologies, SL (Bollullos de la Mitación, Spain) (represented by: A. León González and A. Martínez Solís, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— declare and hold that OLAF, by its report of 9 July 2018, and the Commission, by its decision to ratify and validate that report in the context of the recovery proceedings initiated, infringed the EU acquis and, consequently, annul that report and the proceedings initiated by the Commission;

— declare and hold that the applicant correctly fulfilled its contractual obligations under the POWAIR project (project number: 256759) and consequently declare the expenses, the recovery of which was requested through debit notes No 3242010798 and No 3242010800 issued by the Commission, to be eligible;

— on that basis, declare that the Commission’s claim for the sum of EUR 175 426,24 is unlawful and unfounded and consequently annul debit notes No 3242010798 and No 3242010800 issued by the Commission and the pre-information letter of 24 May 2019 (Ares (2019)3414531) that gave rise to that claim and the measures subsequent to it;

— in the alternative, in the event that the debit note is not held to be invalid, declare that the Commission is liable for unjust enrichment;

— order the Commission to pay the costs or, in the event that the forms of order sought in the present action are not granted, refrain from ordering the applicant to pay the costs, in view of the complexity of the present case, and the issues of fact and law that it presents.

Pleas in law and main arguments

The present action seeks, first, that the Court declare and hold that OLAF has infringed the EU acquis and, following that finding, that it annul the abovementioned report (ref. B.4(2017)4393 Case No OF/2015/0759/B4).

By this action, the applicant also requests, on the basis of Article 272 TFEU, that it be declared and held that it has correctly fulfilled its contractual obligations under the contract concluded in the context of the 7th Research Framework Programme Grant Agreement (‘FP7’), as a participant in the POWAIR project (Project No 256759) and consequently that it be held that there is no need to order the repayment of the sums claimed and the payment of the damages set out in debit notes No 3242010798 and No 3242010800 issued by the Commission.

In support of the action, the applicant relies on five pleas in law.

1. First plea in law, alleging infringement of fundamental rights of the European Union. — The applicant submits in that regard that in the present case there has been a manifest infringement of the fundamental rights guaranteed by the Treaties and of the EU acquis. In support of this, not only are all the expenses the recovery of which is sought eligible, since all the projects were fully implemented, but in addition flagrant defects arose in the course of the proceedings which infringe the EU acquis.

2. Second plea in law, based on the eligibility of the expenses the recovery of which is sought. — The applicant submits in that regard that OLAF and the Commission make claims based on points which are both irrelevant and incorrect. — The applicant also maintains that neither OLAF nor the Commission have managed to understand correctly the applicant undertaking’s technology-based business model, despite its arguments during the investigation phase undertaken by OLAF. Consequently, from the wording of some observations which appear in the final report and which are taken to be accurate by the Commission in the adversarial proceedings initiated, it can be inferred that evidence was obtained as the result of an incorrect and biased assessment of the reality of the applicant’s subsidised activity. — In any event, it must be considered that OLAF’s conclusion that GPTech did not have a system in place allowing it to know the cost of implementing each subsidised project is incorrect.

3. Third plea in law, based on the eligibility of the expenses claimed. — In that regard, the applicant categorically denies having failed to comply with its contractual obligations. — The applicant states that it had to dedicate a large part of its resources to participation in the project. The work carried out had a marked impact on the undertaking’s workers and contributed to the development of the technology plan. In other words, in short, what R & D subsidies are intended to achieve is not only an economic impact on the undertaking but also a technological impact which, in the present case, was clearly achieved. — The applicant states that OLAF simplistically and indiscriminately uses, as a quantative measure of the degree of participation in the project, subjective estimates of time dedicated to specific activities, by seeking to use, as a measure of that degree of participation, the percentages of participation in tasks, although there was no commitment in any technical annex concerning such a degree of participation.

4. Fourth plea in law, based on infringement of the right to sound administration (Article 41 of the Charter) and the rights of the defence (Articles 47 and 48 of the Charter). — As regards Annex 16 to OLAF’s final report and the Commission’s observations, the applicant emphasises the failure to state reasons which vitiates the present recovery procedure. — The applicant also highlights the fact that the conclusions reached by both OLAF and the Commission are based on documents which do not reflect the totality and the true nature of the project, either because they relate to only some of the activities that comprise the POWAIR project; or because they are based on initial documentation which cannot be used to assess the final implementation of the project; or because they designate the authors of documents by using metadata from Word files which do not reflect the true situation.