Case T-91/16: Action brought on 29 February 2016 — Italy v Commission
Date: 2016-02-29
Institutions: General Court
Subjects: European Social Fund, Sicily, audit, employment policy, expenditure, operational programme, principle of proportionality, right to justice, terms for aid








C_2016136EN.01004201.xml










18.4.2016   


EN


Official Journal of the European Union


C 136/42





Action brought on 29 February 2016 — Italy v Commission
(Case T-91/16)
(2016/C 136/58)
Language of the case: Italian

Parties


Applicant: Italian Republic (represented by: G. Palmieri, acting as Agent, and P. Gentili, avvocato dello Stato)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should annul, pursuant to Article 264 TFEU, Commission Decision C(2015)9413 of 17 December 2015, notified on 18 December 2015, concerning the reduction of the contribution from the European Social Fund for the Sicily Operational Programme (Programma Operativo Sicilia) which forms part of the Community Support Framework for Community structural assistance in the regions falling under Objective 1 in Italy (POR Sicilia 2000-2006), and, consequently, find that the final request for payment presented by the Italian authorities should be upheld in its entirety by the Commission. It also asks that the Commission be ordered to pay the costs of the present proceedings.

Pleas in law and main arguments

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






1.


The decision was adopted as a result of an unlawful duplication of the controls made pursuant to Article 30 of Council Regulation (EC) No 1260/99 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1), which were re-opened and repeated in the audit of 2008 despite those controls having been undertaken and concluded, at least in so far as all of the expenditure certified on 31 December 2006 is concerned, in the audits of 2005 and 2006.










2.


The contested decision is vitiated by an infringement of the principle of proper administration because the Commission communicated the results of the 2008 audit with a delay of 18 months after the task had been completed.










3.


The contested decision misrepresents the facts because it ignores the fact that, in the period following the audits of 2005 and 2006, the error rate literally collapsed from 53,13 % to 3,05 % in 2007, and to 1,45 % in 2008 and 2009.










4.


The contested decision infringes the principle of proportionality because it fails to take account of the fact that the certified expenditure for the three years 2007 to 2009, affected by a minimal error rate, was equal to approximately half the total value of the programme covered by the ESF.










5.


The contested decision is unfounded in fact and in law, because it extends to the following three years the finding of systematic deficiencies which arose and were resolved in the period up to 31 December 2006, without undertaking any specific verification in that regard.










6.


The contested decision is also vitiated by a defective statement of reasons. According to the applicant, that decision applies the extrapolation technique, which consists in extending to non-controlled expenditure the error rate found for controlled expenditure, even though that technique is allowed only by regulations relating to the 2007-2013 programme; in any event, for the years 2007-2009, it assumed an error rate of 8,39 %, even though the Italian authorities had explained that the sample referred to in Article 10 of Commission Regulation (EC) No 438/2001 of 2 March 2001 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the management and control systems for assistance granted under the Structural Funds (OJ 2001 L 63, p. 21) lacked balance because it had not been compiled randomly, like a genuine statistical sample, but focussed intentionally on projects that presented risk factors.