Case T‑59/11

Koinonia Tis Pliroforias Anoichti Stis Eidikes Anagkes — Isotis

v

European Commission

‛Arbitration clause — Sixth framework programme for research, technological development and demonstration activities, contributing to the creation of the European Research Area and to innovation (2002 to 2006) — Access-eGOV, EU4ALL, eABILITIES, Emerge, Enable, Ask-It contracts — eTEN programme relating to trans-European telecommunications networks — NavigAbile and Euridice contracts — Competitiveness and Innovation Framework Programme — T-Seniority contract — Payment of the final balance — Counterclaim — Reimbursement of sums advanced — Liquidated damages’

Summary — Judgment of the General Court (First Chamber), 16 July 2014

Judicial proceedings — Referral to the General Court under an arbitration clause — Contract granting EU assistance for a project in the area of research, technological development and demonstration — Application for a declaration that certain costs and the payment of certain amounts eligible — Counterclaim accompanied by claim for default interest formulated in the defence — Admissibility

Judicial proceedings — Referral to the General Court under an arbitration clause — Contract granting EU assistance for a project in the area of research, technological development and demonstration — Language for communication in the documents — Determination by the law applicable to the contract

Judicial proceedings — Referral to the General Court under an arbitration clause — Contract granting EU assistance for a project in the area of research, technological development and demonstration — Serious failure of the aid beneficiary to fulfil his professional obligations — Exclusion from subsidy-granting procedures

Judicial proceedings — Referral to the General Court under an arbitration clause — Contract granting EU assistance for a project in the area of research, technological development and demonstration — Non-compliance with obligations under the contract — Commission’s right to repayment of the sums held ineligible, plus default interest — Compliance with the principles of proportionality and the execution of contracts in good faith

Judicial proceedings — Referral to the General Court under an arbitration clause — Jurisdiction of the Court defined exclusively by Article 272 TFEU and the arbitration clause — Application of national provisions on jurisdiction — Not included

See the text of the decision. (see paras 73, 83)

See the text of the decision. (see paras 78, 264)

Expenses submitted to the Commission by an EU aid beneficiary pursuant to various contracts concluded between that beneficiary and the Commission in the context of the Sixth framework programme for research, technological development and demonstration activities, contributing to the creation of the European Research Area and to innovation must be regarded as ineligible where contractual terms are breached. That is the case where the Commission finds irregularities in the applicant’s accounts and time recording system and a clearly excessive number of days worked declared by the director of the programmes. (see paras 85-89, 94-102, 108, 110, 112, 115, 123, 126-130, 137-143, 146-149, 164, 240, 241, 296, operative part 2, 3)

Where the Commission has informed an applicant that, in the light of the conclusions of a provisional audit, it intends, first, to exclude the applicant from an ongoing grant award procedure in connection with the seventh framework programme of the European Community for research, technological development and demonstration activities (2007-2013) on grounds of grave professional misconduct and, second, to impose on it an administrative penalty in the form of exclusion from contracts and grants financed by the Union budget, for a maximum period of five years, on account of serious breach of its contractual obligations, the applicant’s final registration in the central exclusion database is objectively justified and has its origins in the applicant’s own conduct. In that regard, it is irrelevant that the provisional registration of that applicant in the central exclusion database, initially motivated by the cases of exclusion referred to in Article 93(1)(c) and Article 96(2)(a) of Regulation No 1605/2002, was justified by other circumstances. (see paras 213, 214, 218)

The audit report is a document drafted by the Commission pursuant to the provisions of the contracts at issue. The question of the language in which that document was to be communicated to the applicant therefore falls within the scope of the law applicable to those contracts. (see para. 226)

See the text of the decision. (see paras 264, 265, 269)

The Rules of Procedure do not contain any particular requirements relating to the conditions in which such a claim may be made after an action has been brought pursuant to an arbitration clause. There is therefore nothing, a priori, to prevent the defendant in a contractual dispute from being able to make a counterclaim in the defence. Consequently, that fact cannot, in itself, give rise to the inadmissibility of the counterclaim. Moreover, in the light of the current organisation of the written procedure in the Rules of Procedure, once the possibility is available to the initial defendant to make a counterclaim, it necessarily follows that the initial applicant will be able only once to submit written comments on that claim in the reply. However, it may respond at the hearing to the arguments put forward by the Commission in the rejoinder regarding the counterclaims. (see paras 269, 270, 273, 274)