Case T-126/23: Action brought on 9 March 2023 — VC v EU-OSHA
Date: 2023-03-09
Institutions: General Court
Subjects: European Development Fund, award of contract, distribution of EU funding, general budget (EU), principle of proportionality, public procurement, rights of the defence, sanction (EU), tendering








C_2023155EN.01006901.xml










2.5.2023   


EN


Official Journal of the European Union


C 155/69






Action brought on 9 March 2023 — VC v EU-OSHA
(Case T-126/23)
(2023/C 155/86)
Language of the case: Spanish

Parties


Applicant: VC (represented by: J. Rodríguez Cárcamo and S. Centeno Huerta, lawyers)

Defendant: European Agency for Safety and Health at Work (EU-OSHA)

Form of order sought

The applicant claims that the Court should:






—


in accordance with 263 TFEU, annul, in its entirety, Decision 2023/01 of 18 January 2023 of the interim Executive Director of EU-OSHA on exclusion of the applicant from participation in procedures for public procurement, grants, prizes, awards and financial instruments covered by the general budget of the European Union and from participation in award procedures covered by the European Development Fund (EDF) on the basis of Council Regulation (EU) 2018/1877; (1)











—


in the alternative, in accordance with Article 261 TFEU and Article 143(9) of Regulation 2018/1046 (2) (‘the Financial Regulation’), replace the exclusion measure with a financial penalty and/or annul Article 4 of the contested decision relating to the publication measure;










—


order EU-OSHA to pay the costs of the present proceedings.





Pleas in law and main arguments

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






1.


First plea in law, alleging infringement of Article 106(2) of Regulation 966/2012, (3) as amended by Regulation 2015/1929 (4) (‘the Financial Regulation applicable from January 2016), the right to effective judicial protection guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, the rule of law declared in Article 19(1) TEU, the principle of sincere cooperation established in Article 4(3) TEU, and infringement of Article 325(1) TFEU. The applicant alleges that the contested decision did not respect the suspension decision adopted by the competent national judicial authority.










2.


Second plea in law, alleging infringement of Article 106(7)(a) of the Financial Regulation applicable from January 2016 (equivalent to Article 136(6)(a) of the Financial Regulation), and serious errors of assessment. The applicant alleges that the competent authorising officer, as a result of serious errors of assessment, found that the corrective actions taken by the applicant were insufficient not to apply the exclusion measure.










3.


Third plea in law, alleging infringement of Article 106(3) and (7)(a) and (d) of the Financial Regulation applicable from January 2016, and of the principle of proportionality, on the ground that the competent authorising officer made manifest errors of assessment.










4.


Fourth plea in law, alleging infringement of Article 140(1) of the Financial Regulation (equivalent to Article 106(16) of the Financial Regulation applicable from January 2016), of Article 140(2)(b) of the Financial Regulation (equivalent to Article 106(17)(b) of the Financial Regulation applicable from January 2016) and of Article 136(3) of the Financial Regulation, on the ground that there is a lack of reasons for the publication decision.










5.


Fifth plea in law, alleging infringement of Article 106(13)(a) of the Financial Regulation applicable from January 2016. The applicant alleges that the competent authorising officer did not consider the application of a financial penalty as an alternative to the exclusion decision, therefore the decision must be annulled on the ground that it lacks reasoning. In any event, the applicant requests the Court, in the event that the latter decides not to annul the contested decision in its entirety, to replace the exclusion measure with a penalty that is reasonable in the light of the circumstances of the case, in accordance with Article 261 TFEU and Article 143(9) of the Financial Regulation.






(1)  Council Regulation (EU) 2018/1877 of 26 November 2018 on the financial regulation applicable to the 11th European Development Fund, and repealing Regulation (EU) 2015/323 (OJ 2018 L 307, p. 1).

(2)  Regulation (EU, Euratom) 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).

(3)  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).

(4)  Regulation (EU, Euratom) 2015/1929 of the European Parliament and of the Council of 28 October 2015 amending Regulation (EU, Euratom) No 966/2012 on the financial rules applicable to the general budget of the Union (OJ 2015 L 286, p. 1).