Action brought on 9 November 2006 - Commission v Premium

(Case T-316/06)

Language of the case: French

Parties

Applicant: Commission of the European Communities (Brussels, Belgium) (represented by: E. Montaguti, Agent, assisted by J.-L. Fagnart and F. Longfils, lawyers)

Defendant: Premium SA

Form of order sought

declare the application to be admissible and well founded,

and, in consequence:

order Premium SA to pay a principal amount of EUR 88 594.493, representing EUR 57 605.74 in respect of the contract ISAR A 2052 and EUR 30 988.74 in respect of the contract KAVAS-2 A2019;

order Premium SA to pay the default interest due on the amount of EUR 57 605.74 for the ISAR contract (at the rate specified in the provisions of French law applicable to the contract);

order Premium SA to pay the default interest due on the principal amount of EUR 30 988.74 for the KAVAS-2 contract (at the rate specified in the provisions of Danish law applicable to the contract);

order Premium SA to pay the costs.

Pleas in law and main arguments

The European Community, represented by the European Commission, entered into two contracts with a consortium on 11 March 1992 and 29 December 1993, respectively. One of the members of that consortium was a company for which the defendant was an associated contractor. Those contracts concerned, respectively, the KAVAS-2 A2019 project ("Knowledge acquisition visualisation and assessment system") and the ISAR-AIM A2052 project ("Integration System Architecture"), carried out under a specific research and technological development programme in the field of information technologies (1990 to 1994) adopted by Council Decision 91/394/EC¹.

The contracts set out the amounts of the eligible costs for the projects on the basis of which the Community financial contribution was calculated. In accordance with the provisions of those contracts, all payments made by the Commission were to be regarded as advance payments pending approval in the final report. If the total financial contribution to be paid by the Commission were to prove lower than the payments already made, the contracting parties undertook to repay the difference to the Commission without delay. The contracts also provided that the contracting parties were jointly and severally liable for any failure to meet contractual obligations, except where one of them failed to submit financial information or provided financial information that was false or incomplete. In those cases, the party concerned was to incur full liability.

Under the contracts, the consortium was required to submit regular statements of expenditure, as well as regular reports on the progress of the works.

The financial audit carried out by the Commission in 1996 disclosed several items of non-eligible expenditure invoiced by Premium SA. In its comments on the audit report, the defendant stated that it considered the report's rejection of a number of costs to be unacceptable. Following an exchange of correspondence with the defendant, the Commission issued debit notes to Premium SA, which contested them. In so far as certain advance payments taken into consideration by the Commission in its first debit notes had not been transferred to Premium SA by the coordinator, the Commission issued new debit notes itemising the amounts actually overpaid, while maintaining its position vis-à-vis the findings of the audit report regarding the non-eligible expenditure invoiced by the defendant. The new notes were also contested by Premium SA.

Several times the Commission presented requests for payment again where earlier requests had elicited no reaction from the defendant. As a consequence, on the basis of the arbitration clauses contained in the contracts, the Commission has brought the present proceedings claiming that the Court should order Premium SA to reimburse part of the advance payment made by the Community, together with default interest, on the ground that the defendant has failed to substantiate by relevant argument its refusal to accept the Commission's position regarding the expenditure that the audit report found to be non-eligible.

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¹ - OJ 1991 L 218, p. 22.