Action brought on 9 February 2009 - Commission v Antiche Terre

(Case T-51/09)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: A. Dal Ferro, lawyer, V. Joris, Agent)

Defendant: Antiche Terre scarl Società Agricola Cooperativa (Arezzo, Italy)

Forms of order sought

Order the defendant to repay the principal sum of EUR 479 332.40, together with the interest accrued at the rate set out in Article 5.4.3 of the general conditions of the Contract (ECB rate + 2%) from the date of receipt of the sums (from 4 December 1997 for the sum of EUR 461 979.00, and from 18 December 1997 for the sum of EUR 17 353.40) until 1 April 2003, in addition to the interest accrued at the same rate from 4 January 2004 until the date of final settlement, less the sum of EUR 461 979 called on and paid on 25 January 2005;

In the alternative, order the defendant to repay the principal sum of EUR 479 332.40, together with the interest accrued at the Italian statutory rate from 4 January 2004 until the date of final settlement, less the sum of EUR 461 979 called on and paid on 25 January 2005;

In any event, order Antiche Terre Società Agricola Cooperativa to pay the costs.

Pleas in law and main arguments

By the present action, brought under Article 238 EC, the Commission seeks the repayment of the sums advanced to the limited liability cooperative Antiche Terre scarl Società Agricola Cooperativa ('Antiche Terre'), in the context of the THERMIE programme, for the creation of an installation producing electricity (10 MWe) through an innovative biomass combustion process. The reference contract (No BM/188/96) was drawn up between the Commission, Antiche Terre (as coordinator) and two other companies having their seats in Finland and Spain respectively.

Antiche Terre built up a number of significant delays in commencing its own task, and it requested several extensions so as to be able to complete its work, which it obtained. It also proposed a substantial change to the installation, which would have meant abandoning the innovative biomass combustion process and producing energy in substantially smaller quantities than had been estimated.

The Commission was unable to authorise such a fundamental change to the project, which would have had no chance of funding under the THERMIE programme.

Consequently, since it was found that Antiche Terre would not have completed the installation in accordance with the terms of the project originally submitted, the Commission was forced to withdraw from contract BM/188/96, making it clear moreover that the failure to complete the original project could have entailed the repayment in whole or in part of the advance paid to Antiche Terre.

The Commission therefore asked Antiche Terre on a number of occasions to repay the sums advanced, in the amount of EUR 479 332.40, but it did not receive any payment. After calling on the guarantee, and after further requests for repayment of the balance, the Commission therefore brings the present action before the Court of First Instance.

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