T-358/20, Net Technologies Finland Oy v. REA: Seventh Framework Programme for research, technological development and demonstration activities (2007-2013) - The FP7 Guide is not a source of the applicable law but merely a policy instrument, which, in accordance with the principle of performing contracts in good faith, has to be taken into account - Relationship between the participants in a Consortium - Probative value of emails - Eligibility of the costs for the consultants of the subcontractor; criteria of working in the beneficiary's premises and of remuneration based on working hours; derogation by FP7 from the conditions laid down in the general conditions of the FP

Nature of FP7 Guide
“43 It is apparent from the first paragraph of Article 9 of the grant agreement that that agreement does not expressly refer to the FP7 guide as a source of the applicable law. In general, it should be noted that the FP7 guide is not referred to in either the grant agreement or the general conditions.FP7
44 It should be noted that the FP7 guide cannot be regarded as an EU act relating to the Seventh Framework Programme within the meaning of the first paragraph of Article 9 of the grant agreement. In that regard, the guide states that its purpose is to help participants understand and interpret the provisions of grant agreements and that it cannot derogate from the legal texts. It is also stated that the guide reflects the interpretation of the Commission of the provisions of grant agreements and that only the provisions of those agreements are binding.
45 It follows that the FP7 guide is merely a policy instrument for projects selected for funding, which cannot under any circumstances derogate from the conditions laid down in the general conditions and, more particularly, from the requirements stemming from the wording of Articles II.14 and II.15 thereof (see, by analogy, judgment of 21 December 2021, EKETA v Commission, T 177/17, not published, EU:T:2021:929, paragraph 139).
46 The fact remains that, although it is not binding, the FP7 guide falls within the framework in which the grant agreement was concluded, since it is intended to provide, inter alia, concrete examples and suggestions relating to good financial practice to be applied when implementing projects financed under the Seventh Framework Programme. In accordance with the principle that contracts must be performed in good faith, the information provided in the FP7 guide must therefore be taken into account (see, by analogy, judgments of 10 March 2021, Ayuntamiento de Quart de Poblet v Commission, T 539/18, not published, EU:T:2021:123, paragraph 57, and of 20 October 2021, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, T 191/16, not published, EU:T:2021:707, paragraph 90 and the case-law cited).”

Relationship between. coordinator and subcontractor
“52 … even if the applicant had not been informed by the coordinator of the consortium of the relevance of the FP7 guide, that issue would fall within the scope of the relationship between the participants in the consortium and the consortium contract concluded for that purpose, with the result that that fact is irrelevant for the purposes of the present case”.

Probative value of emails
“66 In that regard, it should be noted that sending an e-mail does not guarantee that it is actually received by the person to whom it is addressed. An e-mail may not reach that person for technical reasons. Even if the sender does not receive a ‘not- received’, ‘undelivered’ or similar type of message, that does not necessarily mean that the email actually reached the person to whom it was addressed (see, to that effect, judgment of 8 September 2008, Sogelma v EAR, T 411/06, EU:T:2008:419, paragraph 77). It is clear that, if the sender of an e-mail who does not receive any confirmation of receipt takes no further action, he or she is normally not able to prove that that e-mail was received and, when necessary, on which date (see, to that effect, judgment of 8 September 2008, Sogelma v EAR, T 411/06, EU:T:2008:419, paragraph 78).”

Derogation of FP7 Guide – Eligibility of costs
“92 According to the case-law, the FP7 guide is not limited, in establishing the requirement to work on the beneficiary’s premises, to the correct interpretation of Article II.15 of the general conditions, but formally adds an additional requirement which that provision does not lay down (see, to that effect, judgment of 17 January 2019, Aristoteleio Panepistimio Thessalonikis v ERCEA, T 348/16 OP, not published, EU:T:2019:14, paragraphs 105 and 106). As was pointed out in paragraph 45 above, the FP7 guide cannot derogate from the conditions laid down in the general conditions and, more particularly, from the requirements arising from the wording of Articles II.14 and II.15…
107 … the payments were made on the basis of services provided rather than on the basis of working hours. As the applicant rightly submits, the issuing of invoices does not constitute an abnormal practice in the case of self-employed workers who have concluded service contracts and not employment contracts. In that regard, the FP7 guide expressly provides that consultancy costs may be regarded as personnel costs even if the consultants are self-employed or employed by a third party. Therefore, it cannot be inferred from that fact alone that the two consultants were not remunerated on the basis of their working hours.
108 It follows that the REA was wrong to consider that the costs at issue could not be declared eligible on the ground that the criterion according to which the beneficiary’s remuneration must be based on working hours rather than on the delivery of specific outputs or products was not satisfied as regards those two consultants”.