Case T-703/14: Action brought on 2 October 2014  — Diktyo Amyntikon Viomichanion Net v Commission
Date: 2014-10-02
Institutions: General Court
Subjects: arbitration, audit, expenditure, expert's report ordered by a court, indemnification, misuse of a right, principle of proportionality, proof, white-collar worker








C_2014448EN.01003001.xml










15.12.2014   


EN


Official Journal of the European Union


C 448/30





Action brought on 2 October 2014 — Diktyo Amyntikon Viomichanion Net v Commission
(Case T-703/14)
(2014/C 448/39)
Language of the case: Greek

Parties


Applicant: Diktyo Amyntikon Viomichanion Net (DABNET) AEBE (Kaisariani, Greece) (represented by: K. Damis, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:






—


instruct an expert report, in order that there should be examined the reported finding in the audit report of KPMG Certified Auditors AG, which was wrongly and unlawfully accepted by the European Commission, that there is a ‘lack of alternative evidence to confirm the requested personnel costs’. That factor is of crucial importance to the outcome of the case, since the personnel costs incorporate all the indirect costs. The applicant emphasises that the audit report of KPMG AG, in respect of which DABNET AEBE submitted written comments and a request for a re-examination with full supporting evidence, was accepted by the European Commission without a sufficient statement of reasons or any response to the evidence, and










—


declare, first, that the debit note No 3241409008, which was sent to the applicant on 31/07/2014 and which requested repayment of EUR 64  574 ,73, in respect of the agreement relating to the FP7-SME-2007-222303 ‘FIREROB’ project on the basis of the audit 12-ΒΑ176-003, is contrary to the contractual obligations of the Commission and is unfounded, second, that the costs which the applicant submitted within the framework of the agreement at issue are eligible costs and, consequently, that the Commission is obliged to issue a credit note for EUR 64  574 ,73.





Pleas in law and main arguments

In support of the action the applicant relies on four pleas in law.






1.


The first plea is based on the arbitration clause. The applicant maintains, first, that the evidence submitted fully proves the engagement of the applicant’s staff on the ‘FIREROB’ project, second, that at no point in the audit report is it stated that the applicant’s personnel did not perform the work carried out within the framework of the ‘FIREROB’ agreement or that false information was produced by the applicant, and, third, that the applicant undertook to provide personnel for 12,2 person-months and that the applicant provided in total 21,92 person-months without seeking an amendment to the agreed budget.










2.


The second plea is based on a claimed abuse of rights. The applicant maintains that the Commission’s request for repayment of the sum of EUR 64  574 ,73, in other word a sum which is almost five times greater than the applicant’s direct subsidy (EUR 13  474 ,00) for work which was optimally performed by the applicant, is disproportionate and contrary to the principle of performance of contracts in good faith.










3.


The third plea is based on a claimed infringement of the principle of protection of legitimate expectations. The applicant maintains that the lawful right was not given to the applicant to submit its lawful objections directly to the auditor appointed by the European Commission and to clarify the unsupported arguments of the author of the draft audit report.










4.


The fourth plea is based on the principle of proportionality. The applicant maintains that Article ΙΙ.24.1 of Annex II to the ‘FIREROB’ agreement gave to the Commission the discretion not to request the payment of damages, given that the applicant produced work which was assessed very positively and in which, according to the European Commission’s Technical Report, scientific results of a very high level were achieved.