Notice for the OJ
Action brought on 20 November 2001 by Bioelettrica S.p.A. against the Commission of the European Communities
(Case T-287/01)
(Language of the case: Italian)
An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 20 November 2001 by Bioelettrica S.p.A., represented by Ombretta Fabe Dal Negro,
The applicant claims that the Court should:
-find that, by terminating by letter of 6 September 2001 the Thermie contract of 12 December 1994 with Bioelettrica S.p.A., the Commission has acted unlawfully, and consequently
-declare the contract valid and effective; and
-order the Commission to pay to the applicant any amount which the Court may deem appropriate by way of compensation for the damage which the applicant has suffered;
-order the Commission to pay the costs.
Pleas in law and main arguments
The present application seeks a declaration that, by terminating the Thermie contract, signed on 22 December 1994 bearing number BM 1007/1994 IT/DE/UL/PO, for the construction of a thermal power station in Italy, fuelled by plant-based biomass based on a fluidised bed air gasifier on a combined cycle, the Commission acted unlawfully. 40% of the cost of the contract was originally financed by Community contributions. The applicant company, which was coordinating the project, consisted of five of the seven original parties to the contract in question.
The decision to terminate was adopted after a number of problems regarding performance of the contract, in particular with regard to the failure of Lurgi Energie, one of the contractors, to contribute technological support which led the defendant to the conclusion that it would be impossible to complete the programme of work of the project within the agreed time limit.
In support of its application the applicant puts forward the following pleas in law:
(failure to give one month's notice by registered letter;
(failure to notify the termination to all the Contractors;
(infringement of Clause 8(8).2(f) of Annex II to the General Terms and Conditions of the Contract, inasmuch as that provision provides for the Commission to be able to terminate the contract where the other contracting party has not commenced work by the date laid down in the contract, bearing in mind that the contract was entered into in December 1994 and that Clause 2.1 of the Contract lays down 1 January 1995 as the date for the commencement of work. According to the applicant, it is unbelievable that the Commission should have taken six years to complain about the failure to commence work;
(breach of the general principle of legal certainty with regard to legal relationships with a contractor who may not under any circumstances be subject to unforeseeable or unspecified consequences either as regards the conditions which the parties have imposed on themselves or, even less, the applicable legislation. The applicant points out that this is particularly the case inasmuch as the unforeseen effect arises from the exercise of an arbitrary power, which is not provided for either under the law or under the contract, to extinguish the existing contractual relationship by withdrawing on the basis of an improper and moreover unfounded ground;
(failure by the Commission to take into account the fact that the applicant has fulfilled its obligations under the contract, whereas Clause 2(c) of the General Terms and Conditions of the Contract expressly provides that a contractor is not to be liable for a contractor which does not fulfil its obligations if it can show that it has not contributed to such failure to fulfil obligations. In that regard, the defendant had overrated the obligations attaching to the project coordinator;
(the defendant disregarded in the present case the duties enshrined in Article 1375 of the Italian Civil Code so far as concerns the principle of good faith and the protection of legitimate expectations.
More generally, the applicant states that the object of the contract in question is not for the supply of a piece of equipment or merely white goods, but of a thermal power station whose technological characteristics should have proved to be something new and truly innovative. The applicant therefore claims that the Commission's conduct in the performance of the contract should have been quite different to that adopted, since the defendant was not in actual fact a party to a synallagmatic contract, but a partner in the full sense of the word, sharing the contracting parties' interest in developing technology within the Member States.
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