Case T-175/21: Action brought on 2 April 2021 — RH v Commission
Date: 2021-04-02
Institutions: General Court
Subjects: European Anti-fraud Office, European Development Fund, Internet site, abuse of power, award of contract, confidentiality, principle of proportionality, public procurement, rights of the defence








C_2021206EN.01003501.xml










31.5.2021   


EN


Official Journal of the European Union


C 206/35






Action brought on 2 April 2021 — RH v Commission
(Case T-175/21)
(2021/C 206/43)
Language of the case: English

Parties


Applicant: RH (represented by: L. Levi and M. Vandenbussche, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:






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annul the decision of the Commission of 18 February 2021 to exclude the applicant from participating in award procedures for public procurement and grants governed by the EU budget and by the 11th European Development Fund or from being selected for implementing Union funds under Regulation (EU, Euratom) No 2018/1046 and for implementing funds under the European Development Fund governed by Regulation (EU) No 2018/1877 for a duration of 18 months and to publish the exclusion on the Commission’s website;










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compensate the applicant for the prejudice amounting to EUR 17 385 832;










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order the defendant to pay the entire costs.





Pleas in law and main arguments

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






1.


First plea in law, alleging an error of law in the legal characterisation of the grave professional misconduct.






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The applicant argues that the defendant’s whole case is based on a mere hypothetical assumption that the applicant could potentially have had access to confidential information when meeting with beneficiaries. By doing so, the defendant has committed an error of law in the legal characterisation of grave professional misconduct within the meaning of Article 93(1) of Council Regulation (EC, Euratom) No 1605/2002, (1) Article 106(1)(c) of Regulation (EU, Euratom) No 966/2012 (2) and Article 136(1)(c)(v) of Regulation (EU, Euratom) No 2018/1046. (3)















2.


Second plea in law, alleging violation of the presumption of innocence and reversal of the burden of proof.






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In addition to the fact that the contested decision does not correctly characterise the existence of ‘grave professional misconduct’, it is argued that the onus is on the defendant to prove its allegations, as the applicant remains innocent until proven guilty.














3.


Third plea in law, alleging error of assessment of the facts and of the evident absence of grave professional misconduct, in particular as referred to in Article 136(1) (c)(v) of Regulation (EU, Euratom) No 2018/1046 (which is in any case a manifest error), and also alleging illegality of the OLAF report and of the contested decision.






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The applicant firmly contests the Commission’s allegations and the conclusion of professional misconduct and maintains that it did not attempt to obtain and did not obtain confidential information in relation to one of its projects. Both OLAF and DG NEAR have grossly misrepresented the facts, distorted the evidence presented by the applicant and drawn erroneous legal findings in relation to such facts and evidence.














4.


Fourth plea in law, alleging the violation of the duty of diligence and good administration as reflected in Article 41 of the Charter of Fundamental Rights of the EU.






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It is argued that the defendant has failed to act diligently both in the conduct of the OLAF investigation and in relation to DG NEAR’s decision.














5.


Fifth plea in law, alleging violation of the right of defence.






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At the time of the on-the-spot visit of OLAF at the applicant’s premises, the applicant argues that it was not clearly spelled out that the applicant was perceived/qualified as a person concerned. The applicant only realised for the first time that it was considered as a person concerned by virtue of the notification of the summary of facts. As OLAF had considered the applicant as a person concerned, it is also even less understandable that the applicant’s management was not interviewed/questioned during the investigation leading up to the summary of facts.














6.


Sixth plea in law, alleging violation of the duty to state reasons.






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In the present case, the defendant accuses the applicant of attempting to obtain confidential information but does not identify the information concerned or the concrete circumstances which justify the legal characterisation of ‘grave professional misconduct’. The applicant is therefore not in a position to understand the contested decision and fully review its legality as it cannot ascertain if the information was indeed confidential and bring evidence to confirm that it was indeed publicly available to all of the potential competitors.










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The defendant also fails to explain, in the applicant’s view, why the alleged misconduct, if proven (quod non), would be considered as serious in the light of the circumstances of the case. The sanction of publication is also, it is alleged, not properly motivated.














7.


Seventh plea in law, alleging violation of the principle of proportionality regarding the sanction of exclusion and its publication.






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It is argued that the defendant committed an error of law consisting of a violation of the principle of proportionality in its assessment of the criteria justifying an exclusion measure. It is also argued, on a subsidiary basis, that, should the retained facts qualify as grave professional misconduct (quod non), a sanction of exclusion for 18 months and the publication of this sanction are disproportionate in light of a concrete assessment of the criteria established in Article 136(3) of Regulation (EU, Euratom) No 2018/1046.










(1)  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).

(2)  Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1).

(3)  Regulation (EU, Euratom) No 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).