Action brought on 11 October 2006 — CESD-Communautaire v Commission

(Case T-289/06)

(2006/C 310/41)

Language of the case: French

Parties

Applicant: Centre Européen pour la Statistique et le Développement ASBL — CESD-Communautaire ASBL (Luxembourg, Grand Duchy of Luxembourg) (represented by: D. Grisay and D. Piccininno, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Pleas in law and main arguments

By its decision of 11 August 2006, the Commission found the applicant, under Article 93(1)(f) of the Financial Regulation (1), to be in serious breach of three contracts concluded with Eurostat relating to technical cooperation in the sphere of statistics (PHARE programme), which was the result of its refusal to make available to the Commission information allowing an audit of the performance of the contracts in issue. Furthermore, the contested decision states that the Commission reserves the right to seek the enforcement of the contractual provisions which have not been applied, by all appropriate means, including by way of legal proceedings, and, if necessary, to recover the sums which are established as being payable.

In support of its application for the annulment of the contested decision, the applicant puts forward three pleas in law.

The first plea relates to an alleged misuse of powers, analysed from the perspective of a misuse of procedure, to the extent that the contested decision is not subject to the particular procedures for dispute resolution laid down by each contract concluded by the applicant with the Commission and based on the application of Article 57 of Financial Regulation No 1605/2002, and substitutes for those procedures the unilateral method of a decision based on Article 93(1)(f) of that regulation. The applicant maintains that the Commission misuses the procedure laid down in Article 93(1)(f) given the article's primary objective which is, according to the applicant, to exclude tenderers who are declared to be in serious breach of contract in an earlier procurement procedure from participating in a later procedure, and terminates contracts which each lay down different methods of dispute resolution by determining the competent courts and the law which applies to those contracts.

The second plea relied on by the applicant is based on defects in reasoning. The applicant claims that the reasons for the contested decision are not properly stated either in law, in that the decision contains inadequate reasoning to the extent that it applies, in the contractual domain, a provision relating to the sound management of Community public procurement, or in fact, in that the criticisms of the applicant made by the Commission are without foundation, the applicant having shown a willingness to cooperate with the audit services of the Commission.

In its third plea, the applicant claims that the Commission made a manifest error of assessment to the extent that the contested decision states the facts alleged against the applicant without first characterising them as a serious breach of contract by following the contractual procedures under Article 57(2) of Regulation No 1605/2002.

(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).