Case T‑164/14

Calberson GE

v

European Commission

(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)

Summary — Judgment of the General Court (Seventh Chamber), 18 February 2016

1.      Judicial proceedings — General Court seised under an arbitration clause — Contract for the carriage of goods — Law applicable

(Rome Convention of 19 June 1980; European Parliament and Council Regulation No 593/2008, Arts 3 and 5; Commission Regulations No 111/1999 and No 1799/1999)

2.      Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — General reference to documents annexed to the application — Inadmissibility

(Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court (1991), Art. 44(1)(c))

3.      Judicial proceedings — General Court seised under an arbitration clause — Claim for payment of default interest — Admissibility — Conditions

(Commission Regulations No 111/1999, Art. 10(2), and No 1799/1999)

1.      The law applicable to a contract concluded by an EU institution 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. 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 Regulation No 593/2008 (Rome I).

In that regard, concerning a contract for the carriage of goods concluded between the Commission and the successful tenderer in the procedure under Regulation No 1799/1999 on the supply of beef to Russia, in accordance with Regulation No 111/1999 laying down general rules for the application of Regulation No 2802/98, where the carrier has his place of residence in France and it is clear from Annex II to Regulation No 1799/1999 that the place of delivery of the beef destined for Russia took place in France, a dispute concerning that contract must be resolved on the basis of its 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.

(see paras 23, 25-28)

2.      See the text of the decision.

(see para. 61)

3.      In the matter of the payment of default interest in the context of a public contract, a delay in payment can be pleaded only from the time when the debtor is given formal notice where the contract does not provide that formal notice is automatically given merely by virtue of payment being due.

Moreover, in the case of a contract concluded between the Commission and the successful tenderer in the procedure under Regulation No 1799/1999 on the supply of beef to Russia, in accordance with Regulation No 111/1999 laying down general rules for the application of Regulation No 2802/98, Article 10(2) of Regulation No 111/1999 provides that applications for payment are to be accompanied by various supporting documents, in the absence of which no payment is to be made. Accordingly, the mere drawing-up of an invoice does not give rise to a right to payment.

(see paras 74, 77)