Case T-162/04: Action brought on 30 April 2004 on by Eugénio Branco Lda against the Commission of the European Communities
Date: 2004-08-28
Institutions: Court of First Instance
Subjects: European Commission, European Social Fund, action for annulment (EU), vocational training

C 217/20

EN

Official Journal of the European Union

28.8.2004

By decision of 31 July 2003, notified on 1 August 2003 by
fax, the Opposition Division upheld the opposition. By letter of
1 October 2003, received by the Office on 7 October 2003,
the applicant appealed against that decision. By letter of 23
October 2003 the clerks' office of
the Board of Appeal
informed the applicant that the appeal had not been lodged
within the time limit and requested the applicant to submit his
observations on that point. The applicant subsequently lodged
an application for restitutio in integrum.

— Annul the Commission decision of 8 August 2004 which
failed to approve the claim for payment of the balance due
under the European Social Fund (ESF) financing procedure,
did not allow certain expenses submitted by the applicant,
thereby reducing the ESF
training
approved by the Commission decision, and called on the
applicant to repay the sum of EUR 39 899.07, which it had
received as advances from the ESF, and the national public
contribution from the Portuguese State;

contributions

for

By a decision of 3 March 2004 the Second Board of Appeal of
the Office rejected that application and the applicant's appeal.

— Order the Commission to pay the costs.

The applicant submits that the appeal was signed by the appli-
cant's representative on the last day before expiry of the time
limit and placed on the pile of post to be sent out by fax.
the
However, by error, after payment of
employee responsible for the post did not replace the item with
the others to be sent by fax but with those to be sent by
recorded mail.

the appeal

fee,

The applicant claims that, in reaching the contested decision,
the Office failed to apply correctly the rules in Regulation No
40/94 governing restitutio in integrum. Had they been
correctly applied,
the Office would have been obliged to
conclude that the requirements for restitutio in integrum were
fulfilled in the present case, since there was no organisational
fault which would prevent restitution in integrum and the rules
on late payment of fees in the fees regulations would have been
applicable by analogy.

The applicant submits that objectively this is a case of a minor
oversight that could not be prevented by reasonable commer-
cial methods of organisation. It should also be borne in mind
that the other party in the appeal proceedings suffered no
procedural disadvantage.

Action brought on 30 April 2004 on by Eugénio Branco
Lda against the Commission of the European Communities

(Case T-162/04)

(2004/C 217/37)

(Language of the case: Portuguese)

An action was brought before the Court of First Instance of the
European Communities on 30 April 2004 against Commission
of the European Communities by Eugénio Branco Lda, repre-
sented by Bolota Belchior, lawyer, with an address for service
in Luxembourg.

The applicant claims that the Court of First Instance should:

Pleas and principal arguments adduced in support

On 29 June 1986, the applicant submitted to the Departa-
mento para os Assuntos do Fundo Social Europeu (Department
of European Social Fund Affairs – DAFSE) of the Portuguese
State an application for financing to be granted by the ESF for
vocational training for the period from 2 January 1987 to 31
December 1987, which was approved by Commission decision.
The applicant requested payment of
the balance from the
DAFSE, there being a balance in favour of the applicant. The
DAFSE analysed the accounts and documents relating to the
applicant and documents relating to the training actions and,
by decision of 13 March 1989, approved the request
for
payment of the balance. Similarly, the Commission approved
the request for payment of the balance. On 8 August 2004, the
Commission adopted the decision against which these proceed-
ings are brought.

According to the applicant,
the decision infringes Council
Regulation (EEC) No 2950/83 of 17 October 1983, giving
effect to Council Decision 83/516/EEC of 17 October 1983 on
the tasks of the European Social Fund, since the applicant rigor-
ously complied with all the relevant laws, regulations, direc-
tives, criteria, requirements and conditions when its application
to the ESF was approved, thereby acquiring subjective vested
rights. The contested decision thus infringes vested rights.

The decision at issue also breaches the principles of the protec-
tion of legitimate expectations and of legal certainty, since the
approval decision gave the applicant the right and the legally
significant expectation that it would receive the contributions if
it carried out the training in accordance with the agreed condi-
tions. According to the applicant, the Commission could have
taken the action which it has now purported to take at the
start of 1989, and by not doing so breached the principle of
the protection of legitimate expectations and legal certainty.

Finally, the contested decision represents a serious breach of
the principle of proportionality, since the applicant incurred
the expenditure on the basis that the Commission would fulfil
its commitment and its agreement to contribute.