Action brought on 14 July 2006 - Commission v Internet Commerce Network and Dane-Elec Memory
(Case T-184/06)
Language of the case: French
Parties
Applicant: Commission of the European Communities (Brussels, Belgium) (represented by: L. Ström, Agent, assisted by P. Elvinger, lawyer)
Defendants: Internet Commerce Network and Dane-Elec Memory
Form of order sought by the applicant
The applicant claims that the court should:
summon the parties and mediate between them; if not
accept that this application is in due form and declare it admissible; and
primarily, order the company Dane-Elec Memory to pay the Commission the sum of EUR 55 878 with interest for late payment, in pursuance of the 'upon first demand' guarantee;
in the alternative, order the company ICN to repay the advance of EUR 55 878 made by the Commission with interest for late payment, on the ground of non-fulfilment of its contractual undertakings in connection with the Crossemarc project;
order the unsuccessful party, under Article 69 (2) of the Rules of Procedure, to pay the costs and expenses of the proceedings;
order the interim execution of the judgement to be given, notwithstanding appeal and without security;
reserve to the applicant all other rights, pleas in law and actions, and, in particular, the right to add to its claim for payment.
Pleas in law and main arguments
The European Community, represented by the European Commission, concluded on 28 February 2001 with, among others, the company Internet Commerce Network (ICN), Contract IST-2000-25366 covering the carrying-out of a project 'Cross-lingual Multi Agent Retail Comparison - Crossemarc' in the framework of a programme for research, technological development and demonstration technologies of Information Society Technologies (IST) 1998-2002.
1 By letter of guarantee signed on 1 September 2000 Dane-Elec Memory, ICN's parent company, guaranteed ICN's contractual commitments to the Commission under Contract IST-2005-25366.
An advance of payment was made by the Commission to the parties associated in the project, including ICN, through a coordinator, NCSR 'Demokritos'. Subsequently, the coordinator requested ICN's contribution in accordance with the tasks defined in the project. Since that contribution was not made and ICN's representative informed the coordinator of financial difficulties encountered by ICN, the coordinator contacted the company Dane-Elec Memory, the guarantor of ICN's obligations. The director of Dane-Elec Memory informed the coordinator that ICN was going to withdraw from the project and repay the advances. Having received no confirmation in writing of that withdrawal or the commitment to repay, the coordinator of the project and the Commission sent ICN a demand for repayment of the advances made. Since that demand received no reply, a request to honour the financial guarantee in accordance with its commitments in the letter of guarantee was sent to Dane-Elec Memory. It refused to honour that guarantee on the ground that the contractual default was not proven by the Commission. That refusal was repeated in spite of the fact that the Commission gave reasons for its demand.
On the basis of the arbitration clauses contained in Contract IST-2000-25366 between ICN and the Commission and in the letter of guarantee issued by Dane-Elec Memory in favour of the Commission, the Commission brought this action seeking an order that Dane-Elec Memory pay the Commission the amount of the advances paid to ICN plus interest for late payment, in pursuance of the 'upon first demand' guarantee. In the alternative, the applicant seeks an order that ICN repay the advance made by the Commission plus interest for late payment, for non-fulfilment of its contractual obligations in connection with the 'Crossmarc project'.
____________1 - Call for expression of interest published in OJ 1999 C 12, p. 5.