Case C-350/09 P: Appeal brought on 2 September 2009 by Centre de Promotion de l’Emploi par la Micro-Entreprise (CPEM) against the judgment delivered on 30 June 2009 in Case T-444/07 Centre de Promotion de l’Emploi par la Micro-Entreprise (CPEM) v Commission of the European Communities
Date: 2009-09-02
Institutions: Court of Justice
Subjects: European Anti-fraud Office, European Social Fund, France, action for annulment (EU), judicial investigation, judicial proceedings








C_2009312EN.01001102.xml










19.12.2009   


EN


Official Journal of the European Union


C 312/11





Appeal brought on 2 September 2009 by Centre de Promotion de l’Emploi par la Micro-Entreprise (CPEM) against the judgment delivered on 30 June 2009 in Case T-444/07 Centre de Promotion de l’Emploi par la Micro-Entreprise (CPEM) v Commission of the European Communities
(Case C-350/09 P)
2009/C 312/19
Language of the case: French

Parties


Appellant: Centre de Promotion de l’Emploi par la Micro-Entreprise (CPEM) (represented by C. Bonnefoi, avocate)

Other party to the proceedings: Commission of the European Communities

Form of order sought







—


set aside the judgment of the Court of First Instance;










—


grant, in whole or in part, the form of order sought at first instance;










—


order the Commission to pay the costs.





Pleas in law and main arguments

The appellant puts forward thirteen grounds of appeal relating to the dismissal by the Court of First Instance of its action for annulment of the Commission’s decision of 4 October 2007 cancelling the assistance granted by the European Social Fund (ESF) by Decision C(1999) 2645 of 17 August 1999.
By its first ground of appeal, CPEM submits that the Court of First Instance breached the principle of equal treatment in that it did not comply with the requirements of a fair balance between the arguments of the parties. By confining itself to stating, on several occasions, that the Commission rejected or rebutted CPEM’s arguments, the Court of First Instance did not specify the Commission’s arguments or the way in which they rejected or rebutted those of CPEM, which created an imbalance in the presentation of the arguments and consequently in their treatment in the judgment.
By its second ground of appeal, CPEM submits that the Court of First Instance erred in law by refusing to acknowledge the ‘co-responsibility’ of the Commission, in that the Commission was aware of the acts complained of but took no steps, in its periodic checks on the implementation of the subsidised project, to block the payments of the advances and the balance of the subsidy. The obligation on CPEM to repay the whole of the financial assistance granted is therefore unfounded, having regard to the arguments put forward by CEPM, which establish at the very least the co-responsibility of the Commission in the detrimental situation created.
By its third ground of appeal, CPEM submits that the Court of First Instance wrongly failed to examine its arguments concerning the choice of the legal bases of the check, which is vitiated by unlawfulness in that it was performed on the basis of a different regulation from that on the basis of which the check is officially carried out.
By its fourth ground of appeal, CPEM states that the Court of First Instance erred in law in declaring inadmissible the form of order sought in respect of obtaining compensation for public damage to its reputation. Information was given to the local press by OLAF even though CEPM had not yet been notified of the adjustment decision. In such circumstances, to make that information public causes serious damage to the reputation of an organisation which acts in the public interest, does not have its own resources or customers, and derives its funding solely from public and private contributors.
By its fifth ground of appeal, CPEM submits that the Court of First Instance erred in law and disregarded the principle of proportionality by dismissing the application for symbolic compensation for its staff on the ground of lack of specific authority conferred on the lawyer, whereas the errors pointed out by CPEM as regards the authority given to the OLAF investigators and the Commission staff were not examined by the Court of First Instance.
By its sixth ground of appeal, CPEM criticises the Court of First Instance for erring in law by reducing the scope of the complaint and the examination of the first plea in law to the sole question of respect of the rights of the defence, even though it referred expressly to the fundamental rights of the defence and the general principles of law.
By its seventh ground of appeal, CPEM submits that the Court of First Instance further erred in law by reducing the scope of respect of the rights of the defence solely to the possibility for the addressees of a decision substantially affecting their interests to be placed in a position in which they can effectively put forward their point of view. Respect of the rights of the defence is much wider in scope. Moreover, the ‘effectiveness’ of the discussion with OLAF and the Commission and the ‘careful and impartial’ examination of all the elements of the case are highly debatable in the present case, as is the failure of OLAF to communicate the subject of the complaints made against CPEM.
By its eighth ground of appeal, CPEM criticises the Court of First Instance more particularly for erring in law in that it considered that informing the press of the content of an administrative decision imposing a penalty even before the recipient has been notified of it does not constitute an infringement of the rights of the defence.
By its ninth ground of appeal, CPEM complains that the Court of First Instance wrongly rejected its plea in law concerning the failure by the Commission, in the procedure leading to the adoption of the contested decision, to respect the rights of the defence and the principles of the presumption of innocence, legal certainty, balance and the neutrality of checks. Respect for those general principles of law should be guaranteed not only in administrative procedures liable to lead to the imposition penalties but also in preliminary investigation procedures.
By its tenth ground of appeal, CPEM submits that the Court of First Instance erred in law in disregarding the French concept of a non-profit-making organisation and the relations such an organisation may and must have with the various local authorities. It thus repeated the original mistake by the Commission and OLAF, which regarded the links between CPEM and local authorities, including the city of Marseille, as a serious irregularity.
By its eleventh ground of appeal, CPEM complains that the Court of First Instance erred in law in stating that CPEM considered the ‘promoter’s guide’ as not capable of being relied on and dismissing its arguments in this respect, when in fact it did not regard the guide as incapable of being relied on but merely complained of the existence of several different versions leading to judicial uncertainty and failure to respect the right to an inter partes hearing.
By its twelfth ground of appeal, CPEM submits that the Court of First Instance wrongly interpreted the concept of ‘valorisation’ by adopting a legally incorrect argument of the Commission, namely that that technique of allocating expenditure was authorised in ‘classic’ projects covered by the ESF but prohibited in pilot projects under Article 6(1)(a) of Regulation No 4255/88. (1)

By its thirteenth and last ground of appeal, CPEM complains, finally, of the failure of the Court of First Instance to observe the principle of legal certainty, in that it failed to address the plea concerning the non-applicability of Regulation No 1605/2002, (2) on which the decision of OLAF and the Commission was based, although at the material time it was the Financial Regulation of 21 December 1977 (3) which was in force. In addition, CPEM requests, pursuant to the second and third subparagraphs of Article 47(1) of the Rules of Procedure of the Court of Justice, that the facts be ascertained by calling witnesses.


(1)  Council Regulation (EEC) No 4255/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards the European Social Fund, OJ 1988 L 374, p. 21.

(2)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ 2002 L 248, p. 1.

(3)  Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (OJ 1977 L 356, p. 1), as amended by Council Regulation (EC, ECSC, Euratom) No 2779/98 of 17 December 1998 amending the Financial Regulation of 21 December 1977, OJ 1998 L 347, p. 3.