Case T-65/15: Action brought on 6 February 2015 — Talanton v Commission
Date: 2015-02-06
Institutions: General Court
Subjects: EU control, audit, costing, expert's report ordered by a court








C_2015138EN.01005501.xml










27.4.2015   


EN


Official Journal of the European Union


C 138/55





Action brought on 6 February 2015 — Talanton v Commission
(Case T-65/15)
(2015/C 138/72)
Language of the case: Greek

Parties


Applicant: Talanton AE — Simvouleftiki — Ekpaideftiki Etairia Dianomon, Parochis Ipiresion Marketigk kai Dioikisis Epicheiriseon (Talanton SA Business Consulting and Marketing Services) (Palaio Faliro, Greece) (represented by: K Damis, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:






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instruct an expert report, in order that there should be examined the reported finding in the audit report of the external auditor, which was wrongly 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 represent the greater part of the eligible costs and incorporate all the indirect costs;·










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declare, first, that the debit note No 3241414916 which was sent to the applicant on 10/12/2014 and in which the Commission requested the return of two hundred and seventy three thousand, five hundred and thirty five euros and 38 cents (EUR 2 73  535,38) for the agreement for the FP-7216088 POCEMON project on the basis of the erroneous and inaccurate audit report 11-ΒΑ135-006 is in breach of the Commission’s contractual obligations, and, second, that the costs which the applicant submitted within the framework of the agreement concerned are eligible costs and consequently the Commission is obliged to issue a credit note for one hundred and twenty nine thousand, seven hundred and sixty four euros and 38 cents (EUR 1 29  764,38).





Pleas in law and main arguments

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






1.


The first plea is based on the arbitration clause:






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The applicant maintains that from its detailed reasoning in this action it is apparent that there is a causal link between the facts which are reported in the audit report and the conclusions of the external auditor which were groundlessly accepted by the Commission notwithstanding all the reasoned objections (of the applicant) which were not examined. That detailed reasoning rebuts all the positions of the external auditor and consequently the Commission should revise its conclusions and accept the applicant’s costs.














2.


The second plea is based on the performance of a contract in good faith and the prohibition on the abusive application of contractual terms:






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first, the applicant maintains that it was not granted the legal right to submit directly to the auditor appointed by the Commission its objections and to clarify the unsupported arguments of the author of the draft audit report. This is particularly important, given that the partiality of the external auditor against the applicant and the errors of the external auditor are at issue.










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second, the applicant maintains that the external auditor’s draft audit report was accepted by the Commission without any examination and rejection by argument of the lawful and detailed claims of the applicant, and of the supplementary material which was submitted. The draft audit report was reproduced in the Audit Report 11-BA135-006/22.1.2013 in the POCEMON project agreement No FP7-216088, which incorrectly reports that there was a lack of alternative evidence in relation to the claimed personnel costs. The assessment of the external auditor is arbitrary and unjustified, given that there was produced as evidence a large quantity of alternative evidence and a large number of sworn statements of all those working on the project, and accordingly the Commission decision at issue which groundlessly accepted the assessment of the external auditor is in error.