Case T-290/18: Action brought on 4 May 2018 — Agmin Italy v Commission

Action brought on 4 May 2018 — Agmin Italy v Commission

(Case T-290/18)

Parties

Applicant: Agmin Italy SpA (Verona, Italy) (represented by: F. Guardascione, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— As a preliminary matter, find and declare the nullity and/or the invalidity and/or the lack of effect and/or the non-existence of (i) the contested decision on the grounds of unlawfulness, infringement of the principle of separation of investigative powers and decision-making powers, infringement of the rights of the defence, abuse of power in the form of distortion and erroneous assessment of the facts, manifest illogicality and inconsistency, and on the grounds of failure to conduct a proper investigation and unequal treatment, and (ii) for all the reasons set out above, any other earlier or subsequent act which is in any way related and/or connected to the act referred to above, with all the legal consequences thus arising;

— In any event, annul Decision DG NEAR of 7 March 2018 (ARES — 2018 — 1288022) notified on 9 March 2018, in so far as it is contested in the present case and, consequently, annul the related penalties;

— In the alternative, order the setting aside or reduction of the penalty imposed on Agmin on the ground that it is excessive and disproportionate to Agmin’s actual conduct;

— In the further alternative, find that the facts described are such as to allow the rehabilitation of Agmin pursuant to Article 106(9) of Regulation No 966/2012;

— Order the defendant to pay the costs.

Pleas in law and main arguments

The present action is brought against the European Commission’s Decision of 7 March 2018 (ARES — 2018 — 1288022), excluding the applicant from participating in procurement and grant award procedures financed by the general budget of the European Union and by the European Development Fund for the maximum period of three years laid down in Article 106(14)(c) of Regulation No 966/2012 ( 1 ) and ordering publication [of information relating to that exclusion] on the Commission’s website, following a failure to deliver the goods ordered (Lots 9 and 11) within the timeframes laid down in Supply Contract ENPI/2014/351-804, and a failure to replace the guarantee (pre-financing guarantee of EUR 89430,71) submitted by Agmin to the Contracting Authority on 19 November 2014. That guarantee was issued by a body which, according to information received from the Bank of Italy, was authorised to issue guarantees in favour of banks and financial institutions authorised to issue credit, but not in favour of other bodies or entities, such as the Contracting Authority.

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

1. First plea in law, alleging abuse of power, in particular in the form of infringement of the principle of separation of investigative powers and decision-making powers, infringement of the rights of the defence, manifest illogicality, and a failure to state reasons.

2. Second plea in law, alleging infringement and/or misapplication of the ‘Principles of European Contract Law 2002’, applicable under Article 41 of the General Conditions of the Contract; and

3. Third plea in law, alleging infringement of the principle that the penalty should be proportionate pursuant to Article 5 TEU, in that the European Commission decided to impose on Agmin the maximum penalty of three years.

The applicant claims in particular that the contested decision infringes its rights in that the Commission, in making that decision, did not give proper consideration to the fact that the Contracting Authority was principally, or in the alternative, jointly responsible for the failed delivery because that authority, arbitrarily and unjustifiably, refused to replace the supplier of the goods with another producer that had indicated its availability to supply goods of an equivalent or higher quality to that indicated in the technical specifications set out in the contract notice.

( 1 ) Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1).