JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
18 February 2016 (*)
(Arbitration clause — Programme to supply agricultural products to Russia — Supply of beef — Non-performance of the contract by the intervention agency — Applicable law — Limitation — Late release of certain supply securities — Partial payment of a transport invoice — Underpayment in foreign currency of certain invoices — Default interest)
In Case T‑164/14,
Calberson GE, established in Villeneuve-Garenne (France), represented by T. Gallois and E. Dereviankine, lawyers,
applicant,
v
European Commission, represented by D. Bianchi and I. Galindo Martín, acting as Agents,
defendant,
supported by
French Republic, represented by D. Colas and C. Candat, acting as Agents,
intervener,
APPLICATION under Article 272 TFEU for an order requiring the Commission to compensate the applicant for the loss which it claims to have suffered following acts of misconduct allegedly committed by the intervention agency in the performance of a contract relating to the transport of beef to Russia in accordance with Commission Regulation (EC) No 111/1999 of 18 January 1999 laying down general rules for the application of Council Regulation (EC) No 2802/98 on a programme to supply agricultural products to the Russian Federation (OJ 1999 L 14, p. 3), and Commission Regulation (EC) No 1799/1999 of 16 August 1999 on the supply of beef to Russia (OJ 1999 L 217, p. 20),
THE GENERAL COURT (Seventh Chamber),
composed of M. van der Woude, President, I. Wiszniewska-Białecka and I. Ulloa Rubio (Rapporteur), Judges,
Registrar: S. Bukšek Tomac, Administrator,
having regard to the written part of the procedure and further to the hearing on 16 July 2015,
gives the following
Judgment
Background to the dispute
1 Under Article 1(1) of Council Regulation (EC) No 2802/98 of 17 December 1998 on a programme to supply agricultural products to the Russian Federation (OJ 1998 L 349, p. 12), free supply was made to the Russian Federation of certain agricultural products on the terms set out in the regulation. Under Article 4(1) of that regulation, the Commission of the European Communities was to be responsible for execution of the operation and under Article 2(3), supply costs, including transport to ports or frontier points, unloading excluded, and where appropriate, processing in the Community, were to be determined by public tendering procedure.
2 On 14 September 1999, under a public tendering procedure pursuant to Commission Regulation (EC) No 1799/1999 of 16 August 1999 on the supply of beef to Russia (OJ 1999 L 217, p. 20), the applicant, Calberson GE, submitted to the Office national interprofessionel des viandes, de l’élevage et de l’aviculture (Ofival), later the Établissement national des produits de l’agriculture et de la mer (FranceAgriMer) (‘the intervention agency’) a tender for the cost of transporting 5 000 tonnes of beef carcases, being Lot No 8 described in Annex II to that regulation.
3 By a decision dated 24 September 1999, the Commission awarded Lot No 8 described in Annex II to Regulation No 1799/1999 to the applicant.
4 Under Commission Regulation (EC) No 111/1999 of 18 January 1999 laying down general rules for the application of Regulation No 2802/98 (OJ 1999 L 14, p. 3), and Regulation No 1799/1999, the practical implementation of the Commission’s obligations under that contract was conferred on the intervention agency. More specifically, the intervention agency was to be responsible for performing the contractual obligations relating to payment and release of financial security.
5 On completion of the supply of the beef carcases, as referred to in Lot No 8 described in Annex II to Regulation No 1799/1999, the applicant applied to the intervention agency for the release of the supply security which it had been required to lodge pursuant to the regulation and for payment of the transport costs.
6 On 10 July 2000, the applicant, being of the view that its claims had not been settled in full, brought an action before the Tribunal de grande instance de Paris (Regional Court, Paris, France) seeking compensation for the damage which it claimed to have suffered due to the intervention agency’s delay in settling its claims. More specifically, the applicant claimed first that the intervention agency had paid certain invoices and released certain securities late and, secondly, that it had paid in French francs (FRF) invoices that were payable in United States dollars (USD) on the basis of an inapplicable exchange rate. By a decision of 19 December 2001, the Tribunal de grande instance de Paris (Regional Court, Paris) held that it did not have jurisdiction to hear the action, which should be dealt with by the administrative courts. An action was brought on 22 January 2002 before the Tribunal administratif de Paris (Administrative Court, Paris, France) which, by a judgment of 30 July 2007, dismissed the applicant’s claim relating to the same allegations. An appeal was brought on 28 September 2007 before the Cour administrative d’appel de Paris (Administrative Court of Appeal, Paris, France) which, by a judgment of 6 April 2010, dismissed the applicant’s claim relating to the same allegations.
7 The applicant then lodged an appeal in cassation before the Conseil d’État (Council of State, France), which referred a question to the Court of Justice for a preliminary ruling relating to the interpretation of Article 16 of Regulation No 111/1999. This question, in essence, asks whether Article 16 is to be interpreted as conferring on the Court of Justice jurisdiction to rule on all disputes relating to a public tender, such as that at issue in the main proceedings, in particular on actions seeking compensation for damage suffered as a result of misconduct by the intervention agency in making the payment owed to the successful tenderer and in releasing the supply security lodged by the tenderer in favour of the intervention agency.
8 By a judgment of 17 January 2013 in Geodis Calberson GE (C‑623/11, ECR, EU:C:2013:22), the Court of Justice held that Article 16 of Regulation No 111/1999, as amended by Commission Regulation (EC) No 1125/1999 of 28 May 1999, must be interpreted as conferring on the Court of Justice jurisdiction to rule on disputes relating to the conditions under which the intervention agency designated to receive the tenders submitted during a tendering procedure for the free supply of agricultural products to the Russian Federation makes the payment owed to the successful tenderer and releases the supply security lodged by that tenderer in favour of that agency, in particular actions for compensation in respect of damage suffered as a result of misconduct by the intervention agency while carrying out those transactions.
9 By a judgment of 11 March 2013, the Conseil d’État (Council of State) annulled the decision of the Tribunal administratif de Paris (Administrative Court, Paris) of 30 July 2007 and the judgment of the Cour administrative d’appel de Paris (Administrative Court of Appeal, Paris) of 6 April 2010 and held that those courts did not have jurisdiction to rule on the compensation claim made by the applicant.
Procedure and forms of order sought
10 By application lodged at the Court Registry on 7 March 2014 the applicant brought this action.
11 On 9 June 2014, the Commission lodged its defence.
12 The reply and the rejoinder were lodged on 22 September and 17 December 2014 respectively.
13 By a document lodged at the Court Registry on 11 July 2014, the French Republic sought leave to intervene in the present proceedings in support of the Commission.
14 By order of 2 September 2014, the President of the Seventh Chamber of the Court granted leave to intervene. The French Republic lodged its statement in intervention on 15 October 2014. The applicant and the Commission lodged their observations on that statement within the period prescribed.
15 By a letter of 11 June 2015, the Court, by way of measures of organisation of procedure provided for under Article 64 of its Rules of Procedure of 2 May 1991, put a question to the parties. The parties complied with that request within the time allowed.
16 The applicant, the Commission and the French Republic submitted oral argument and answered the questions put by the Court at the hearing on 16 July 2015.
17 The applicant claims that the Court should:
– order the Commission to pay it the sum of EUR 7 691.60 including tax by way of financial costs generated by the late release of security supplies;
– order the Commission to pay it the sums of EUR 81 817.25 excluding tax and USD 6 344.17 by way of default interest to run from the due date of the transport invoices to the time of their effective payment;
– order the Commission to pay it ‘default interest on default interest’ equal to 2% per month of late payment of the aforementioned default interest (EUR 81 817.25 excluding tax and USD 6 344.17);
– order the Commission to pay it the sum of EUR 17 400 including tax in respect of the balance of one transport invoice;
– order the Commission to pay it the sum of EUR 30 580.41 including tax in respect of the differential of one rate of exchange;
– order the Commission to pay the costs.
18 The Commission contends that the Court should:
– dismiss the action as inadmissible;
– in the alternative, dismiss the application as unfounded;
– order the applicant to pay the costs.
19 The French Republic contends that the Court should dismiss the action as unfounded.
Law
Applicable law
20 The applicant submits that, since the parties did not expressly designate a law applicable to the contract, one must be determined pursuant to Article 5 of Regulation No 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6, ‘the Rome I Regulation’). Based on the principles set out in that regulation, the law applicable to the contract in question would be French law.
21 The Commission does not dispute the fact that, under the Rome I Regulation, the law applicable to the contract in question would be French law. However, the Commission points out that, in the judgments dated 9 October 2002 in Hans Fusch v Commission (T‑134/01, ECR, EU:T:2002:246), and 10 February 2004 in Calberson GE v Commission (T‑215/01, T‑220/01 and T‑221/01, ECR, EU:T:2004:38), which both related to public supply contracts entered into pursuant to Regulation No 111/1999, the Court did not find it necessary to determine an applicable law and interpreted the regulation without reference to domestic law. In those cases, even though the Court found that there was a contractual relationship between the Commission and each successful tenderer, it also took into account the fact that the rules forming the subject matter of the ‘contract’ appeared in EU regulations, which must be interpreted in the same way in all Member States.
22 The French Republic submits that the dispute must be resolved primarily on the basis of the contractual clauses that can essentially be found in Regulation No 111/1999 and Regulation No 1799/1999, and that those regulations must be interpreted in context in order to address any potential gaps. Failing this, the French Republic’s view is that, should it be necessary to designate a law applicable to the contract in question, that would be French law.
23 Under Article 340 TFEU, ‘the contractual liability of the Union shall be governed by the law applicable to the contract in question’. The law applicable to the contract is that expressly provided for in the contract and the contractual provisions expressing the common intention of the parties must take precedence over any other criterion which might be used only where the contract is silent on a particular point (judgment of 26 November 1985 in Commission v CO.DE.MI., 318/81, ECR, EU:C:1985:467, paragraphs 20 to 22).
24 In the present case, as the Court of Justice noted in the judgment in Geodis Calberson GE, cited in paragraph 8 above (EU:C:2013:22, paragraphs 26 to 28), a contractual relationship exists between the Commission, as awarding authority, and the applicant. With the exception of the price, which the parties agreed between them, the respective rights and obligations of the parties are defined by the provisions of Regulation No 111/1999 and Regulation No 1799/1999. Neither of those regulations determines which law applies to the contract at issue in relation to any matter not governed by the regulations.
25 In the event that the contract is silent, the EU courts must determine which law is applicable, guided by the principles that are generally accepted in the Member States and using the rules of private international law, in particular those found in the Rome Convention of 19 June 1980 on the law applicable to contractual obligations, replaced by the Rome I Regulation (see, to that effect, judgments of 11 October 2001 in Commission v Oder-Plan Architektur and Others, C‑77/99, ECR, EU:C:2001:531, paragraph 28, and 17 March 2005 in Commission v AMI Semiconductor Belgium and Others, C‑294/02, ECR, EU:C:2005:172, paragraph 60).
26 According to Articles 3 and 5 of the Rome I Regulation, ‘a contract shall be governed by the law chosen by the parties’ and, ‘to the extent that the law applicable to a contract for the carriage of goods has not been chosen in accordance with Article 3, the law applicable shall be the law of the country of habitual residence of the carrier, provided that the place of receipt or the place of delivery or the habitual residence of the consignor is also situated in that country’. If those requirements are not met, ‘the law of the country where the place of delivery as agreed by the parties is situated shall apply’.
27 In the present case, it is undisputed that the carrier’s place of residence is in France and it is clear from Annex II to Regulation No 1799/1999 that the place of loading of the beef destined for Russia took place in France.
28 Consequently, this dispute must be resolved on the basis of the relevant contractual clauses, that is to say, with regard to the provisions of Regulation No 111/1999 and Regulation No 1799/1999 and, for any matter not covered by those regulations, with regard to French law.
Admissibility
Limitation
29 The Commission observes that, when assessing the admissibility of the action, it must be borne in mind that the jurisdiction of the EU courts to rule on disputes relating to public tenders regarding food aid for the Russian Federation is a matter already dealt with by the General Court in the judgment in Hans Fusch v Commission, cited in paragraph 21 above (EU:T:2002:246) and the answer provided was subsequently confirmed in the judgment in Calberson GE v Commission, cited in paragraph 21 above (EU:T:2004:38), to which the applicant was a party. The applicant did not lodge the present action until March 2014, that is to say, 10 and 12 years respectively following those judgments, and 14 years after the facts. Therefore the action is time-barred and the action must be found inadmissible.
30 The applicant submits that the contract entered into with the Commission is a public law contract to the extent that the Commission is acting within the context of a service mission organising food aid and that, because of the tasks assigned to it, it is participating in a public service mission. The applicant states that, under French law, limitation in matters concerning the contractual liability of public bodies is governed by Law No 68-1250 of 31 December 1968 on the limitation periods applying to claims made against the State, the départements, the communes and public bodies (‘Law No 68-1250’). On the basis of that law, the applicant’s right to compensation is not time-barred.
31 It should be noted, first, that neither Regulation No 111/1999 nor Regulation No 1799/1999 specifies which rules apply to the contract at issue in relation to limitation. Therefore, as established in paragraph 28 above, French law applies. Secondly, under French law, the provisions of the Civil Code apply in the absence of lex specialis.
32 The general rules on limitation are set out in the French Civil Code. These general rules were amended by Law No 2008-561 of 17 June 2008 reforming limitation in civil matters (‘Law No 2008-561’), which came into force on 19 June 2008. Prior to that reform, the general limitation period in civil matters was 30 years, on the basis of the former Article 2262 of the Civil Code. Following the reform, under Article 2224 of the Civil Code, personal or property actions lapse five years from the day the holder of a right knew or should have known the facts enabling him to exercise his right. Article 2241 of the Civil Code provides that the commencement of legal proceedings, even if for interim relief, interrupts the limitation period. This is the case even where proceedings are brought before the wrong court or where the claim document is void for a procedural defect. Under Article 2242 of the Civil Code, the interruption resulting from the commencement of proceedings continues until those proceedings are terminated. Finally, Article 2231 of the Civil Code provides that interruption erases the period of limitation acquired to date and starts a new period of the same length as the previous one. Meanwhile, Articles 1 and 2 of Law No 68-1250, the application of which is invoked by the applicant as a lex specialis, provide for a limitation period of four years from the first day of the year following that during which the rights were acquired. That period is interrupted by any proceedings commenced before a court even if that court has no jurisdiction to hear them. In such a case, a new period starts to run on the first day of the year following that during which the judgment acquired the authority of a final decision.
33 In the present case, the actions brought by the applicant before the Tribunal de grande instance de Paris (Regional Court, Paris) and the Tribunal administratif de Paris (Administrative Court, Paris) against the intervention agency were brought on 10 July 2000 and 22 January 2002 respectively (see paragraph 6 above) in compliance with the time limits referred to in paragraph 32 above. The same is true of the present action lodged on 7 March 2014, in other words, less than one year after the judgment of the Conseil d’État (Council of State) which brought an end to the case before the French administrative courts (see paragraph 9 above).
34 As a result, the applicant’s right to compensation is not time-barred either on the basis of the French Civil Code or on the hypothesis favoured by the applicant that the provisions of Law No 68-1250 should apply in relation to prescription.
35 In the light of the foregoing, the action must be held to be admissible, without there being any need to determine whether, as the applicant maintains, the contract at issue should be categorised as a public law contract or whether Law No 68-1250 is applicable as a lex specialis.
The alleged extension of the subject matter of the proceedings in the reply
36 The Commission, supported by the French Republic, submits that the applicant, in its reply, unduly extended the subject matter of the proceedings as it was defined in the application. The Commission points out that the application clearly referred to a ‘contract’ for the transport of ‘beef’ in the context of ‘Regulation No 111/1999 and Regulation No 1799/1999’ and that, in the application and as an annex thereto, the applicant referred only to its tender of 14 September 1999 (see paragraph 2 above) which related to Lot No 8 described in Annex II to Regulation No 1799/1999. However, in its reply, the applicant stated that the contract in question was the contract ‘for all lots together’ relating to the transport of ‘agricultural products’ covered by Regulation No 111/1999 and no longer referred to Regulation No 1799/1999, which is relevant only to Lot No 8. According to the Commission, the mere mention in the application of certain invoices relating to other lots is insufficient, in view of Article 44(1)(c) of the Rules of Procedure of 2 May 1991, for those lots to also be deemed part of the subject matter of the proceedings.
37 The French Republic adds that the applicant entered into as many contracts with the Community as it had tenders accepted by the Commission. In the circumstances, by seeking in its application the implementation of its contract with the Community for the single Lot No 8 described in Annex II to Regulation No 1799/1999, the applicant limited the subject matter of the proceedings to one single contract. The French Republic also observes that, pursuant to Article 44(5a) of the Rules of Procedure of 2 May 1991, an action relating to contractual liability must be accompanied by the contract containing the arbitration clause. Therefore, if the application covered other lots, the contracts entered into for those other lots should have been produced.
38 The applicant disputes all of these assertions and maintains that its action ‘extends to the whole of the contract entered into under Regulation No 111/1999, covering all of the disputed lots’. According to the applicant, the demands for payment set out in the application and the supporting documents provided, namely the invoices for which it seeks payment and which relate to various lots under various regulations implementing the said regulation, make it clear that the subject matter of the proceedings was not limited to Lot No 8 described in Annex II to Regulation No 1799/1999. The reference to the successful tender for that particular lot was made merely by way of example.
39 Under Article 44(1)(c) of the Rules of Procedure of 2 May 1991, an applicant is required to state in the application the subject matter of the proceedings and the form of order sought.
40 In the present case, it should be noted that, as the Commission and the French Republic rightly submit, the applicant clearly indicates at the beginning of its application that it was awarded ‘a contract by the Commission … relating to the transport of beef from France to Russia under a programme to supply food to Russia adopted by Regulation (EC) No 111/1999 … and Regulation No 1799/1999’ and that, ‘in the application of those regulations’, the practical implementation of the obligations falling on the Commission ‘under this contract’ had been conferred on the intervention agency. The applicant also states that, ‘during performance of the contract’, it had been faced with numerous difficulties as a result of alleged misconduct on the part of the intervention agency.
41 The sole reference in the application to certain invoices which, in essence, relate to lots other than Lot No 8 is insufficient with regard to Article 44(1)(c) of the Rules of Procedure of 2 May 1991 for the subject matter of the proceedings to be considered to relate equally, as stated in the reply, to the contracts awarded to the applicant on the basis of Commission Regulation (EC) No 556/1999 of 12 March 1999 on the supply of beef to Russia (OJ 1999 L 68, p. 19) (Lots Nos 1, 2 and 3), Commission Regulation (EC) No 712/1999 of 31 March 1999 on the transport of pigmeat to Russia (OJ 1999 L 89, p. 54 (Lot No 6) and Commission Regulation (EC) No 1133/1999 of 28 May 1999 on the supply of beef to Russia (OJ 1999 L 135, p. 64) (Lots Nos 1 and 2).
42 The fact that the regulations referred to in paragraph 41 above, which were invoked for the first time in the reply, are all regulations implementing Regulation No 111/1999 is irrelevant, since each regulation implementing that regulation provides for a new tender leading to the award of a new contract. In addition, under Article 5(1)(c) of Regulation No 111/1999, tenders are admissible only where they cover one single lot. Therefore, the applicant did not have the ability to tender for several lots or to make its tender for one lot conditional on the Commission accepting other tenders submitted for other lots under that regulation or other regulations.
43 It is true that Regulation No 111/1999 lays down the general rules for the application of the programme to supply agricultural products to the Russian Federation and that those general rules are common and applicable to the various regulations referred to by the applicant in the reply. However, Articles 1 and 2 of Regulation No 111/1999 provide that opening an invitation to tender for the award of contracts for individual supplies is effected by specific regulations, such as Regulation No 1799/1999, Regulation No 556/1999, Regulation No 712/1999 and Regulation No 1133/1999. Therefore, it cannot be held that the award of contracts for individual supplies effected in the context of those specific regulations constitutes the execution of a sole contract covering an agreement consisting of seven different lots.
44 In addition, Article 5(1)(a) and (c) of Regulation No 111/1999 clearly set out that tenders submitted to the intervention agency must contain a reference to the regulation announcing the invitation to tender for each lot and that each tender must cover one single, entire lot. The tender annexed to the application relates to Lot No 8 described in Annex II to Regulation No 1799/1999 which cannot be taken as an example illustrating the extent of the obligations that the applicant undertook in the context of the programme to supply agricultural products to the Russian Federation, since each tender was different and was submitted in the context of a different invitation to tender.
45 Therefore, the reference in the reply to lots other than Lot No 8 under Regulation No 1799/1999 constitutes an extension of the subject matter of the proceedings which must be dismissed as inadmissible.
Substance
46 In support of this action, the applicant essentially puts forward four claims. The first claim alleges the late release of certain supply securities. The second claim alleges the late payment of certain transport invoices. The third claim alleges the partial payment of a transport invoice. The fourth claim alleges the underpayment of certain invoices in a currency other than that stipulated in the contract.
47 The Court considers it appropriate to analyse the first, third and fourth claims before the second claim.
First claim, alleging the late release of certain supply securities
48 The applicant submits that three supply securities that it provided were released late without any explanation being given by the intervention agency to justify the late release, and claims compensation for the costs arising from the said delay. The applicant claims that the unjustified refusal to release the securities is an act of misconduct rendering the administration liable and points out that, under Article 12(2) of Regulation No 111/1999, the supply security is to be released when the successful tenderer provides proof of execution of the supply.
49 The Commission comments that, in the absence of essential information in the application, such as a reference to the specific supply operations, the claim should be declared inadmissible on the basis of Article 44(1)(c) of the Rules of Procedure of 2 May 1991. In any event, the Commission considers that the applicant has not provided evidence of the costs it claims to have suffered due to the delay and points out that bank security charges were included in the price given in the tender submitted by the applicant. In addition, according to the Commission, even though Regulation No 111/1999 does not specify a time limit for the release of securities, that does not mean that the release needs to happen the same day that the intervention agency receives the proof. The Commission comments that the intervention agency has to examine the proof before it releases the security and makes payment in order to avoid having to pursue the tenderer if, on checking the situation, it turns out that the supply terms have not been met. In the present case, the delays referred to by the applicant, namely 18 days and 30 days, cannot be deemed at all unreasonable.
50 The French Republic submits that the invoices produced by the applicant in support of its claim predated the contract for Lot No 8 described in Annex II to Regulation No 1799/1999 and, therefore, can have no connection to that contract.
51 It must be held, as the French Republic has argued, that the invoices numbered BRU 9132021 and BRU 9132022, produced by the applicant in support of its allegation, were dated 3 August and 9 August 1999, that is to say, prior to 14 September 1999 when the applicant submitted its tender to the intervention agency and prior to 24 September 1999 when the Commission made its decision to award Lot No 8 described in Annex II to Regulation No 1799/1999 to the applicant. Therefore, those invoices can have no connection to the contract for that lot.
52 Consequently, the first claim must, in any event, be dismissed without there being any need to rule on the plea of inadmissibility submitted by the Commission on the basis of Article 44(1)(c) of the Rules of Procedure of 2 May 1991.
Third claim, alleging the partial payment of a transport invoice
53 The applicant claims that, even though it had completed all the transport supplies required by the contract and had supplied the relevant documents to the intervention agency proving this, the intervention agency failed to pay the whole of the invoice numbered BRU 9131606, without giving any reason. The applicant therefore claims that the Commission should be ordered to pay EUR 17 400, being the outstanding balance of that invoice.
54 The Commission contends that this claim does not comply with Article 44(1)(c) of the Rules of Procedure of 2 May 1991, since the applicant merely states that the sum of EUR 17 400 remains unpaid without explaining to what this sum relates, what information was provided to the intervention agency in support of that payment request or why the sum was due. In any event, the Commission submits that the loading operation is the responsibility of the tenderer, as was determined in the judgment in Calberson GE v Commission, cited in paragraph 21 above (EU:T:2004:38, paragraphs 147 to 149) and that the applicant’s tender did in fact state the costs of the handling and loading operations. The Commission therefore considers that it should be not be responsible for the delays that the applicant claims to have suffered at the time of loading the goods.
55 The French Republic observes that the invoice produced by the applicant in support of its claim predates the contract relating to Lot No 8 described in Annex II to Regulation No 1799/1999.
56 It must be held, as the French Republic has argued, that the invoice of 6 July 1999, produced by the applicant in support of its claim, predates the contract relating to Lot No 8 described in Annex II to Regulation No 1799/1999, which was entered into on 24 September 1999. Therefore, that invoice can have no connection to that contract.
57 Consequently, the third claim must, in any event, be dismissed without there being any need to rule on the plea of inadmissibility submitted by the Commission on the basis of Article 44(1)(c) of the Rules of Procedure of 2 May 1991.
Fourth claim, alleging the underpayment of certain invoices in a currency other than that stipulated in the contract
58 The applicant submits in the application that, under French law, a debt denominated in a foreign currency may be paid in national currency provided that the conversion takes place on the day of payment. In the present case, it is alleged that ‘one of the lots’ awarded to the applicant was payable in United States dollars but paid in French francs. The applicant maintains that ‘four’ invoices at issue, amounting to a total of USD 402 281, were paid ‘via an amount in francs equivalent to EUR 390 334.62’ whereas, if the exchange rate used had been that in force on the date of payment (‘1.0463/0.9557’), the payment should have equated to EUR 420 915.03. The applicant therefore claims that the Commission should be ordered to pay it the difference, being EUR 30 580.41.
59 The Commission contends that, owing to certain contradictions and a lack of clarity, the claim does not meet the requirements of Article 44(1)(c) of the Rules of Procedure of 2 May 1991. In any event, the Cour administrative d’appel de Paris (Administrative Court of Appeal, Paris) had already held in its judgment of 6 April 2000 that the applicant’s invoices were denominated in both United States dollars and French francs.
60 The French Republic observes that the applicant has not identified the contractual stipulation underlying the alleged obligation for payment to be made in United States dollars on which it relies. On the contrary, Article 5(1)(d) of Regulation No 111/1999 requires the various amounts quoted to be expressed in euros in order for a tender to be admissible. The applicant’s tender for the supply of Lot No 8 described in Annex II to Regulation No 1799/1999 was actually expressed in euros and not in United States dollars. In any event, on an application of the principle of French law relied on by the applicant, the difference would be EUR 6 705.45.
61 It should be borne in mind that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the General Court under the first paragraph of Article 53 of that statute, and Article 44(1)(c) of the Rules of Procedure of 2 May 1991, an application initiating proceedings must contain a brief statement of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without any further information. The application must therefore specify the nature of the grounds on which it is based, so that a mere abstract statement of grounds does not satisfy the requirements of the Statute of the Court of Justice of the European Union or of the Rules of Procedure (see, by analogy, judgments of 12 January 1995 in Viho v Commission, T‑102/92, ECR, EU:T:1995:3, paragraph 68, and 27 November 1997 in Tremblay and Others v Commission, T‑224/95, ECR, EU:T:1997:187, paragraph 79). Furthermore, it is not for the Court to seek and identify, in the annexes, the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see, by analogy, judgment of 2 February 2012 in Greece v Commission, T‑469/09, EU:T:2012:50, paragraph 46 and the case-law cited).
62 In the present case, with regard to the alleged debt forming part of the claim, it should be noted, as the Commission has argued, that the applicant maintains in its application that ‘one of the lots’ which it had been awarded had been stipulated in United States dollars, without specifying which one. The applicant then mentions ‘four invoices’ amounting to a total of USD 402 281 said to relate to that lot, but without annexing those invoices or providing any other information about them.
63 However, it is not clear from the application whether the applicant is contesting the fact that the invoices in question were paid in French francs rather than in United States dollars or whether it is merely objecting to the exchange rate that was used. The applicant comments that ‘it is a principle of French law that a debt denominated in a foreign currency may be paid in national currency provided that the conversion take place on the day of payment’, which implies that the applicant is merely objecting to the exchange rate between French francs and United States dollars. In addition, rather than indicating what that exchange rate was, the applicant refers to the exchange rate between United States dollars and euros, without specifying in the application the exact date that it is using as a reference.
64 In the circumstances, this claim does not comply with Article 44(1)(c) of the Rules of Procedure of 2 May 1991 and must be dismissed as inadmissible.
65 In any event, it should be noted that, of the four invoices annexed to the reply, only the invoice numbered BRU 0135699 refers to the supply of Lot No 8 described in Annex II to Regulation No 1799/1999 and is therefore capable of being connected with the contract relating to that lot.
66 It must be stated, first, that the invoice in question is denominated both in United States dollars (USD 108 173.76) and in French francs (FRF 717 289.39) and that the applicant has not supplied any evidence that the invoice should have been paid in United States dollars. It must be noted that, even though Article 5 of Regulation No 111/1999 requires a tender to be expressed in euros in order to be admissible, the regulation is silent on the manner of payment of invoices. Regulation No 111/1999 does not provide that payment for supplies is made in any particular currency. In addition, it should be recalled that the currency existing at the time the contract was entered into, being 24 September 1999, was the French franc.
67 It must be stated, secondly, that the applicant does not allege that the amount paid in French francs by the intervention agency was any different from the sum of FRF 717 289.39 indicated in the invoice.
68 On that basis, the fourth claim, to the extent that it can be understood by the Court, must in any event be dismissed as unfounded.
Second claim, alleging non-payment of interest for late payment
69 The applicant maintains that, even though it had completed all of the transport supplies required under the contract relating to Lot No 8 described in Annex II to Regulation No 1799/1999 and provided the intervention agency with the supporting documents, the intervention agency delayed in paying the contested invoices without any justification. It therefore claims that the Commission should be ordered to pay it interest for late payment, together with default interest on that interest. The applicant also submits that Regulation No 111/1999 does not provide any time limits for payment for transport supplies or the relevant rates of interest for late payment. Therefore, the applicant considers it appropriate to refer to the principles of French administrative law governing such matters. Pursuant to those principles, the applicant states that payment should have been made on presentation of the invoice at the time of collection or of delivery of the goods, or, when not made at the time of collection or delivery, on receipt of the invoice, and that late payment automatically causes interest to run without the need for any other formality.
70 The Commission, supported by the French Republic, considers, in essence, that this claim should be dismissed in respect of all of the invoices, whether this is because they should not have been paid, or because the intervention agency paid them before the applicant had served a formal notice on it, or because they were not connected with the subject matter of the proceedings, or because the evidence required for the payment of invoices had not been provided. In addition, in the absence of a set time limit for payment in Regulation No 111/1999 and Regulation No 1799/1999, those invoices cannot be deemed to be payable in cash. The intervention agency must be allowed a reasonable time to verify claims sent to it. The French Republic adds that the French Civil Code also provides that interest for late payment does not run automatically, but only after a formal notice to pay has been served on the debtor.
71 In the first place, as the Commission and the French Republic have argued, the claim for payment of default interest must be dismissed in respect of those invoices predating the contract relating to Lot No 8 described in Annex II to Regulation No 1799/1999, that is, 24 September 1999, since those invoices can have no connection to the subject matter of the proceedings as defined in the application. Consequently, the present claim must be dismissed in respect of the invoices numbered BRU 9131230, BRU 9131356, BRU 9131823, BRU 9131824, BRU 9132738, BRU 9132739, BRU 9132764, BRU 9132021, BRU 9132022, BRU 9131606, BRU 9132744 and BRU 9132743.
72 In the second place, the applicant does not dispute that the invoices numbered BRU 9132954, BRU 9133012, BRU 9133148, BRU 9133149, BRU 9133152, BRU 9133153, BRU 9133286, BRU 9134237, BRU 9133287, BRU 9133917, BRU 0135094, BRU 0135699 and BRU 0136077 were paid before it served formal notices to pay on the intervention agency on 3 April 2000. However, it still maintains that, on the basis of French administrative law, a formal notice is unnecessary for interest for late payment to start to run.
73 As stated in paragraph 28 above, French law is applicable to the contract relating to Lot No 8 described in Annex II to Regulation No 1799/1999 only where Regulation No 111/1999 and Regulation No 1799/1999, as interpreted by the case-law, do not provide any guidance as to the practical application of the terms of the contract.
74 In the present case, as the Commission points out, the Court has already established, in the context of the performance of a transport supply contract also awarded by the Commission to the applicant on the basis of Regulation No 111/1999, that delay in payment can be pleaded only from the time when the debtor is given formal notice and the supply contract does not provide that formal notice is automatically given merely by virtue of payment being due (see, to that effect, judgment in Calberson GE v Commission, cited in paragraph 21 above, EU:T:2004:38, paragraph 144 and the case-law cited). Thus, the Court did not refer to a provision of national law but to a previous case which also interpreted Regulation No 111/1999 (judgment in Hans Fusch v Commission, cited in paragraph 21 above, EU:T:2002:246, paragraph 78). Given the specific nature of the contract relating to Lot No 8 described in Annex II to Regulation No 1799/1999, the respective rights and obligations of the parties being defined by the provisions of Regulation No 111/1999 and Regulation No 1799/1999, a uniform interpretation of contracts resulting from those regulations needs to be ensured as soon as possible. Consequently, despite the applicant’s arguments to the contrary, the question of default interest cannot be governed by French law, which applies only where the contract is silent.
75 Accordingly, since the applicant did not serve formal notice to pay until 3 April 2000, being the date of the applicant’s first formal notice, its claim for interest for late payment of the invoices which were paid prior to that date, namely the invoices numbered BRU 9132954, BRU 9133012, BRU 9133148, BRU 9133149, BRU 9133152, BRU 9133153, BRU 9133286, BRU 9134237, BRU 9133287, BRU 9133917, BRU 0135094, BRU 0135699 and BRU 0136077, must be dismissed.
76 In the third place, with reference to the invoice numbered BRU 0137658, dated 18 May 2000, there is nothing on the file to indicate that a formal notice relating to this invoice was served. It should be noted that the formal notice of 29 May 2000, which appears on the file, makes no reference to that invoice but rather to another invoice, dated 2 February 2000. Consequently, given the lack of a formal notice, the applicant’s claim must also be dismissed in respect of the invoice numbered BRU 0137658.
77 In the fourth place, with reference to the invoice numbered BRU 0135473, it should be recalled that Article 10(2) of Regulation No 111/1999 provides that applications for payment are to be accompanied by various supporting documents (a copy of the transport documents, the take-over certificate, a copy of the export licence, etc.), and that in the absence of these no payment is to be made. Accordingly, the mere drawing-up of an invoice does not give rise to a right to payment.
78 In the present case, it is apparent from the application that the invoice numbered BRU 0135473, dated 2 February 2000, was paid in two instalments, on 23 May and 13 June 2000 respectively. As observed by the Commission, it appears from the annexes to the application that payment could not be made sooner because the intervention agency had not received all of the required documents. The documents were requested from the applicant in a letter from the intervention agency on 18 May 2000. According to Annex 14 to the application, the applicant sent some of the documents with a letter of 22 May 2000 but failed to provide at least one of the documents requested, namely the transport document (CMR) corresponding to customs declaration EX1 294905. In the absence of evidence that the applicant provided all the documents necessary for payment, prior to 13 June 2000, its claim must be dismissed in respect of that invoice. In the absence of an outstanding debt, interest for late payment could not begin to run.
79 Finally, regarding the invoices numbered BRU 0135095, BRU 0136486 and BRU 9133916, these relate to additional parking fees in Russia. It is clear from the annexes to the application that the intervention agency indicated that those invoices could only be paid following approval from the Commission services and that the applicant accepted this. Therefore, the applicant cannot maintain that those invoices should have been paid eight days after they were sent to the intervention agency. The applicant has not shown that payment of those invoices, which took place on 13 June 2000, was made later than the date on which the Commission services agreed to their being paid. Consequently, the applicant’s claim for default interest must also be dismissed in so far as it relates to those invoices, since the applicant has not established the date on which they fell due for payment.
80 It follows that the second claim must be dismissed in its entirety.
81 In the light of all the foregoing, all of the applicant’s claims, in so far as the Court can understand them, must be dismissed as unfounded.
82 Accordingly, the action must be dismissed in its entirety.
Costs
83 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
84 Article 138(1) of the Rules of Procedure provides that Member States which intervene in the proceedings are to bear their own costs. It follows that the French Republic must bear its own costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Dismisses the action;
2. Orders Calberson GE to pay the costs;
3. Orders the French Republic to bear its own costs.
Van der Woude | Wiszniewska-Białecka | Ulloa Rubio |
Delivered in open court in Luxembourg on 18 February 2016.
[Signatures]