Action brought on 29 December 2010 - Interspeed v Commission

(Case T-587/10)

Language of the case: Slovene

Parties

Applicant: Interspeed Holding Kompanija, A.D. (Belgrade, Republic of Serbia) (represented by: Dr Marko Bošnjak)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

order the defendant to pay the applicant damages for loss of profits, loss of income and reduction of the value of assets in the total amount of EUR 131 879 601, and additional sums comprising default interest on the damages claimed from the day this action was brought to the date of actual payment, and

order the defendant to pay the costs.

Pleas in law and main arguments

By this action, brought pursuant to Articles 256 and 258 of the Treaty on the Functioning of the European Union, the applicant claims that the Court should order the defendant to pay the applicant damages for loss of profits, loss of income and reduction of the value of assets in the total amount of EUR 131 879 601, and additional sums comprising default interest on the damages claimed from the day the action was brought to the date of actual payment, calculated at the rate of interest applied by the European Central Bank at the relevant period to major financing transactions, increased by two percentage points, and also the lawyers' fees and other legal costs incurred by the applicant in connection with these proceedings.

If the Court should not uphold the action brought by the applicant, the latter claims that, as regards the costs of the proceedings, in accordance with Article 87(3) of the Rules of Procedure, the Court should order each party to bear its own costs.

In support of its action the applicant puts forward the following pleas in law.

In the first place, the applicant maintains that the European Agency for Reconstruction ('the EAR') has acted unlawfully, in that:

on 19 December 2006 it issued a call for tenders;

on 22 December 2006 it published a notice for the selection of an undertaking to carry out work on the border crossing at Preševo;

on 10 May 2007 it concluded contract No 04SERO 1105004 for the execution of the works on the border crossing at Preševo;

it paid for the design of the reconstruction of the border crossing at Preševo;

it selected and paid Putevi Užice A.D. to carry out the works;

it selected and appointed E GIS BCEOM International s.a. as the inspecting body in respect of the reconstruction works and paid the sum of EUR 180 850 for the inspection service, in performance of contract No 06SERO 1102/008 1713 81 concluded on 16 December 2008 and contract No 04SERO 1105/00 1 162-954 concluded on 24 September 2004, for a total contractual amount of EUR 606 276.39;

it bought the equipment necessary for the border crossing (containers, barriers and so on);

it took part in the reconstruction as an investor, directly coordinated and monitored its investment through its office in Belgrade.

In addition, the applicant maintains that, by those actions, the EAR unlawfully frustrated the applicant's legitimate expectations and infringed the lawful and judicially protected rights that the applicant could exercise until December 2007 (so far as concerns the retail outlet) or until 7 May 2009 (so far as concerns rights relating to the goods-customs terminal). Those expectations and rights are the expression of the right to protection of property, which is, inter alia, one of the fundamental rights guaranteed by Article 1 of Protocol No 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Moreover, the applicant maintains that those actions of the EAR amount to a clear and serious breach of general legal principles which, in the circumstances of the case, are in essence: the principle of protection of legitimate expectations, the right to protection of property, the principle of proportionality and the principle of transparency. The obviously serious nature of the breach is demonstrated, inter alia, by the amount of the loss sustained by the applicant.

In the second place, the applicant maintains that the EAR's conduct caused the financial loss to be incurred, as a result of:

loss of profits, because it was impossible for the applicant to receive income from the goods-customs terminal, a loss which amounts to EUR 56 838 141;

loss of profits, because it was impossible for the applicant to receive income from the sales outlet in the Preševo border crossing area, a loss amounting to EUR 46 800 000;

loss of income, because it was impossible for the applicant to receive rents for and other revenue from the shopping centre in the immediate vicinity of the Preševo border crossing, a loss amounting to EUR 42 681 600.

In the third place, the applicant maintains that the loss sustained was unarguably caused by the 'reconstruction' activity in the Preševo border crossing area, planned and executed by the EAR.

The applicant further argues that the EAR was fully aware of the fact that the applicant possessed the abovementioned rights in the Preševo border crossing area and that the EAR therefore deliberately breached the applicant's rights.

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