Action brought on 24 September 2021 — KPMG Advisory v Commission

(Case T-614/21)

(2021/C 481/49)

Language of the case: Italian

Parties

Applicant: KPMG Advisory SpA (Milan, Italy) (represented by: G. Roberti, I. Perego and R. Fragale, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

– (i) pursuant to the fourth paragraph of Article 263, annul, in whole or in part, the decision of 13th July 2021 on the exclusion of KPMG Advisory S.p.A. from participating in award procedures governed by Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council or from being selected for implementing Union funds [Ref. Ares(2021)4544873], notified on 14 July 2021 (‘the contested decision’);

– (ii) in the alternative, pursuant to Article 261 TFEU and Article 143(9) of the 2018 Financial Regulation, annul or reduce the exclusion penalty and/or annul the publication penalty imposed by the contested decision;

– (iii) if need be, declare, pursuant to Article 277 TFEU, that Article 73(3) of Regulation 2018/1046 (1) and/or Article 146(6) of Regulation 2018/1046 is unlawful, and

– (iv) in any event, order the Commission to pay the costs.

Pleas in law and main arguments

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

1. First plea in law, alleging infringement of essential procedural requirements and of the principle of collective responsibility. — The applicant claims in that regard that the decision is vitiated by an infringement of essential procedural requirements and of the principle of collective responsibility in so far as it was not adopted by the Commission but by the Director-General contrary to the requirements relating to delegation laid down in Articles 1 and 14 of the Rules of Procedure of the Commission. — The applicant also raises a plea of illegality in respect of Article 73(3) of Regulation 2018/1046.

2. Second plea in law, alleging infringement of the rights of the defence and of the fundamental right to good administration. — The applicant claims in that regard that the decision is flawed in so far as the applicant was not given the opportunity to exercise fully its right to be heard, before the authorising officer responsible for the adoption of the decision in particular. — The applicant claims, in addition, that the obligation to undertake an impartial and diligent examination, enshrined in Article 41 of the Charter, was infringed. — The applicant also raises a plea of illegality in respect of Article 136(6) of Regulation 2018/1046.

3. Third plea in law, alleging infringement of Article 106(1) of the 2015 Financial Regulation (2) and Article 136(2) of Regulation 2018/1046 — errors of assessment and failure to state reasons. — The applicant claims in that regard that the decision is flawed in so far as the authorising officer should have, in the decision, verified, assessed and given reasons relating to the existence of grave professional misconduct, in the light of all the relevant factors.

4. Fourth plea in law, alleging infringement of Article 136(6) and (7) of Regulation 2018/1046 — errors of assessment and failure to state reasons. — The applicant claims in that regard that the contested decision is flawed in so far as the authorising officer, as a result of a failure to undertake an investigation and of errors of assessment, found that the remedial measures adopted by the applicant for the purposes of Article 136(6) and (7) of Regulation 2018/1046 were unsuitable.

5. Fifth plea in law, alleging that the power to exclude an economic operator for the purposes of Article 136 of Regulation 2018/1046 is time-barred and infringement of the principle of proportionality. — The applicant claims in that regard that the power of the authorising officer to exclude the applicant and order the publication of the exclusion is time-barred. — The imposition of the exclusion and its publication infringe the principle of proportionality.

(1) Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).

(2) Regulation (EU, Euratom) 2015/1929 of the European Parliament and of the Council of 28 October 2015 amending Regulation (EU, Euratom) No 966/2012 on the financial rules applicable to the general budget of the Union (OJ 2015, L 286, p. 1).