Judgment of the Court of First Instance (Third Chamber) of 30 September 2009 – Lior v Commission and Commission v Lior

(Joined Cases T-192/01 and T-245/04)

Arbitration clause – Thermie and Altener II programmes – Contracts concerning renewable energy and energy saving projects – Admissibility – Claim for payment – Justification of the costs – Claim for reimbursement of advance payments – Compensation

1.                     Procedure – Application initiating proceedings – Legal persons (Rules of Procedure of the Court of First Instance, Art. 44(5)(b); Council Regulation No 2137/85) (see paras 213-216, 229, 243)

2.                     Procedure – Referral to the Court of First Instance under an arbitration clause – Contracts granting Community financial aid for research, technological development and demonstration projects (Art. 238 EC) (see paras 353, 408, 453, 456, 481, 523-525, 642-643, 655, 664, 669-670)

Re:

Two actions under Article 238 EC brought by Lior GEIE and the Commission respectively in pursuance of seven contracts concluded between the Commission and Lior as part of the Thermie programme and a contract concluded between the Commission and Lior as part of the Altener II programme.

Operative part

The Court:

1. Orders Lior GEIE to pay the Commission:

–        EUR 6 156.75 for the Biogas contract, the Biomass contract and the Maxibrochure Bioclimatic contract, together with interest from 28 February 2002 at the interest rate in euros applied by the European Central Bank to its main refinancing operations in February 2002 increased by 1.5 percentage points until 31 December 2002 and by 3.5 percentage points from 1 January 2003 until full payment;

–        EUR 16 325.11 for the Biomass contract, together with interest from 30 June 2002 at the interest rate in euros applied by the European Central Bank to its main refinancing operations from June 2002 increased by 1.5 percentage points until 31 December 2002 and by 3.5 percentage points from 1 January 2003 until full payment;

–        EUR 3 980 for the Wind Energy contract, together with interest from 15 January 2002 at the interest rate in euros applied by the European Central Bank to its main refinancing operations in January 2002 increased by 1.5 percentage points until 31 December 2002 and by 3.5 percentage points from 1 January 2003 until full payment;

–        EUR 36 000 for the Transport contract, together with interest from 31 August 2001 at the interest rate in euros applied by the European Central Bank to its main refinancing operations in August 2001 increased by 1.5 percentage points until 31 December 2002 and by 3.5 percentage points from 1 January 2003 until full payment;

–        EUR 36 000 for the Photovoltaic contract together with interest from 31 August 2001 at the interest rate in euros applied by the European Central Bank to its main refinancing operations in August 2001 increased by 1.5 percentage points until 31 December 2002 and by 3.5 percentage points from 1 January 2003 until full payment.

2. Orders Lior to pay the Commission EUR 32 800 for the Agores contract together with interest from 28 February 2003 at the interest rate in euros applied by the European Central Bank to its main refinancing operations in February 2003 increased by 1.5 percentage points until full payment.

3. Declares that there is no need to give a ruling on the Commission’s pleading in Case T-245/04 that Lior International NV be held jointly and severally liable for the payment of the sums owed by Lior.

4. Orders Lior to pay, in addition to its own costs relating to the main proceedings in Joined Cases T-192/01 and T-245/04, one quarter of the Commission’s costs relating to those proceedings.

5. Orders Lior to bear all the costs relating to the application for interim relief in Case T-192/01 R.

6. Orders the Commission to bear three quarters of its own costs relating to the main proceedings in Case T-192/01 and three quarters of its own costs relating to the proceedings brought against Lior in Case T-245/04.

7. Orders the Commission to bear its own costs relating to the action against Lior International in Case T-245/04.

8. Orders Lior International to bear its own costs.