21.8.2017

EN

Official Journal of the European Union

C 277/57

(Case T-425/17)

(2017/C 277/82)

Language of the case: Italian

Parties

Applicant: Capo d’Anzio SpA (Anzio, Italy) (represented by: S. Carloni, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—annul, on the basis of Article 263 TFEU, Commission Decision C(2017) 2953 final of 28 April 2017 on the recovery of EUR 193 120 (plus interest for late payment) initially granted to the applicant by way of pre-financing in the context of the grant agreement LIFE10 ENV/IT/000369 — LCA4PORTS.

Pleas in law and main arguments

In support of its action, the applicant submits that:

1.On 14 October 2011 the company Capo d’Anzio signed the grant agreement LIFE10 ENV/IT/000369, by which the European Commission awarded that company a grant (for an amount equal to 45,94 % of the total, up to a maximum amount of EUR 485 300) in the context of a project studying the environmental sustainability of the planned development of the Port of Anzio pursuant to the construction, renovation and extension project approved by the competent public authorities.

2.While the activities envisaged by the project were being carried out, and the contractual and statutory rules had initially been complied with in full, the Commission identified a failure to comply with certain formal obligations, leading to that institution suspending the project and later requiring, by way of the contested decision, repayment of the amounts of money granted.

3.The infringement invoked by the applicant is infringement of the rules set out in Article 11 et seq. of the common provisions regulating the procedures to be implemented in the event of suspension of the project and subsequent termination of the grant contract and taking of action to recover the pre-financing.

4.In this case, the Commission acknowledges that it received communications from Capo d’Anzio bearing witness to the temporary nature of its economic and financial difficulties and expressly stating that those difficulties had been brought about by unlawful acts and matters outwith the control of that company.

5.Capo d’Anzio consistently and conscientiously reported those difficulties, which could not be attributed to it, finally requesting, by memorandum of 2 November 2015 and subsequent memorandum of 7 December 2015, that account be taken of those difficulties when decisions relating to the contract were being taken, requesting a meeting to enable it to explain its reasoning and expressly undertaking, in any event, to repay the pre-financing in the event of being permanently unable to furnish a report on the project as requested.

6.Instead of taking account of the justification provided and requesting further details in order to enable the applicant to exercise its rights of defence as requested, the Commission applied the common provisions, equating Capo d’Anzio’s conduct with a culpable failure to fulfil obligations.

7.Capo d’Anzio was entitled to have the requested meeting with the Commission in order to demonstrate that there had been no culpable failure on its part to fulfil its obligations and thus to exercise its right not to be adversely affected by a situation which could not be attributed to it.

8.The Commission’s conduct therefore amounted to a restriction of Capo d’Anzio’s rights and an infringement of the general principles of law which make the termination of contracts conditional on the existence of a culpable failure to fulfil obligations.

9.That infringement of the procedural and substantive rules resulted in the unfair contested decision by which the partially-awarded funding was revoked, notwithstanding the fact that Capo d’Anzio had, in essence, properly used the sums received from the Commission to pay the professionals responsible for implementing the project, as that decision focused primarily on the purely formal fact that Capo d’Anzio had failed timeously to provide a report on the activities carried out.