Brussels, 22/04/2015 (Agence Europe) - For want of a legal basis, the Commission did not have the power to put in place an early warning system (EWS) with regard to third parties which could represent a threat to the financial interests of the EU, ruled the General Court on Wednesday 22 April (case T-320/09).
The Court thus allowed the action for annulment lodged by Planet AE, a Greek company providing advisory services, which, having been entered on the EWS without having been informed of the grounds or having been able to provide explanations, found itself required, by decision of the Commission, to open a blocked bank account to be able to receive an EU grant for an EU-financed project.
The EWS put in place by a 2008 Commission decision seeks to ensure the circulation within the Commission and its executive agencies of information concerning third parties which could represent a threat to the EU's financial interests and reputation. Warnings allowing the identification of the level of risk associated with an entity according to categories ranging from W1, corresponding to the lowest level of risk, to W5, corresponding to the highest level of risk.
OLAF, the European Anti-Fraud Office, may request the registration of W1a or W1b warnings where its investigations give sufficient reason to believe that final findings of serious administrative errors or fraud are likely to be recorded in the EWS in connection with third parties, particularly where those third parties are benefiting or have benefited from funds financed by the EU. W1 warnings have the consequence only of reinforced monitoring measures and not the exclusion of the entity from the project in question. Planet AE, which had been the subject of such warnings, asked the Court to annul the decisions of the Commission and OLAF to enter it in the EWS.
The Court found in its favour. It took the view, firstly, that the Commission, without a legal basis, did not have the power to adopt the 2008 decision putting in place the EWS. Indeed, it does not follow either from the provisions of the Treaties or those of the Financial Regulation that the Commission has the express power to adopt such a decision. Those texts do not make reference to a system such as the EWS (that is to say, a database concerning the natural or legal persons suspected of constituting a risk to the financial interests of the EU), but provide only for the institution of a central database relating to mandatory exclusions from public contracts. The Court observes that most ESW warnings are W1, that they relate to natural or legal persons whose guilt has not been established and that they do not exclude the entity from public contracts.
With regard to its ruling on the Planet AE case, the Court points to a failure to state reasons and infringement of the rights of the defence, Planet AE not having been notified of the decisions of OLAF and the Commission so that it did not have the opportunity of defending itself. (Francesco Gariazzo)