Action brought on 17 December 2008 - Commission v Domótica

(Case T-552/08)

Language of the case: Portuguese

Parties

Applicant: Commission (represented by A.M. Rochaud-Jöet and S. Petrova, Agents, assisted by G. Anastácio and A.R. Andrade, lawyers)

Defendant: Domótica, Estudo e Projecto de Edifícios Inteligentes, Lda (Lisbon, Portugal)

Form of order sought

An order that the defendant should pay the applicant the sum of EUR 124 319.22, being the repayment of an advance paid by the applicant in performance of contract No BU/466/94 PO/ES, concluded in connection with the Thermie programme and terminated on grounds of the failure of the defendant and other cocontractors to perform their contractual obligations, with an increase of EUR 48 000 by way of default interest accrued until 30 September 2008 and interest still to fall due until full and final payment;

An order that the defendant should pay the costs.

Pleas in law and main arguments

On 17 January 1995 the Commission of the European Communities concluded Thermie contract No BU/466/94 PO/ES with the defendant, with the teaching hospitals of Coimbra and with the company Técnicas Reunidas S.S., pursuant to Regulation (EEC) No 2008/90. ¹

The defendant was appointed to be project co-ordinator and took on responsibility for submitting to the Commission the necessary documents, and to act as link between the contractors and the Commission. The liability of the cocontractors was joint and several.

On 10 February 1995, in accordance with what had been agreed, the Commission paid the advance of 30%, that is to say, EUR 176 693.

On 24 May 2000 the Commission rescinded the contract for just cause (having put the defendant on notice), putting forward the following failures to perform contractual obligations:

delays in performance not communicated timeously to the Commission;

Domótica's inability to begin to perform the contract (admitted by the defendant);

failure to send to the Commission financial and technical reports in good time and due form;

failure to conclude work implementing the project within the original period, or within the extension subsequently granted (31 August 2000).

As a result of the wrongful conduct of the cocontractors, the latter failed to fulfil their contractual obligations.

The contract provided that it was possible for the Commission to demand repayment, in whole or in part, of its financial assistance, together with interest in the case of non-performance by the cocontractors.

The Commission is entitled to repayment of EUR 172 499.22, equivalent to the value of the original amount advanced, together with interest accrued, as from 10 February 1995, the costs of part performance incurred by the defendant and accepted by the Commission having been deducted, to which sum must be added interest not yet fallen due.

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¹ - Council Regulation (EEC) No 2008/90 of 29 June 1990 concerning the promotion of energy technology in Europe (thermie programme) (OJ 1990 L 185, p 1).