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Action brought on 18 August 2009 - Commission v Irish Electricity Generating

(Case T-323/09)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: A.- M. Rouchaud-Joët, F. Mirza, agents)

Defendant: Irish Electricity Generating Co. Ltd (Waterford, Ireland)

Form of order sought

order the defendant to pay the Commission of the European Communities the sum due of EUR 237,384.31 being the principal amount of EUR 180,664.70 together with EUR 56,719.61 as late payment interest calculated at the European Central Bank rate +3.50% (5.56%) for the period between 25 August 2003 and 15 April 2009;

order the defendant to pay EUR 27.52 per day by way of interest from 16 April 2009 until the date on which the debt is repaid in full; and

order the defendant to pay the costs of the present proceedings.

Pleas in law and main arguments

Under the European Community's Fourth Research Framework Programme, the Council adopted Decision No 94/806/EC of 23 November 1994¹ to set up a specific programme for research and technological development, including demonstration, in the field of non-nuclear energy. Article 5 of the decision charged the Commission with the responsibility for drawing up a work programme covering the objectives and contents specified in Annex 1 of the Decision, and for issuing for calls and proposals for projects on the basis on the work programme.

On 2 March 1998, following a tender procedure, the contract No WE/178/97/IEGB (hereinafter: "the contact") for the construction of two wind turbines was attributed to the defendant. In accordance with the contract terms, the Commission agreed, from the total estimated eligible costs of the project amounting to ECU 1,531.697, to grant a financial support of 40% of the approved eligible costs of the project up to a maximum of ECU 612,679.

However, the applicant argues, that despite the fact that it advanced to the defendant, between 6 April 1998 and 30 April 2001 the sum of EUR 225,083.79, the defendant did not implement the contract. Moreover, the applicant claims that despite the fact it took the procedural steps required under the contract and the Community Budget Rules² to establish the amount of the debt and to notify it to the defendant, the latter did not react. Hence, by letter of 13 December 2002, the Commission terminated the contract pursuant to Article 5.3 a) i) of Annex II to the contract.

Accordingly, the Commission brought the present application, pursuant to Article 238 EC in order to seek reimbursement of the amount allegedly overpaid to the defendant, which is EUR 180,664.70, plus interest calculated at the rate of 5,56% from the date on which the debt fell due, i.e. 24 August 2003.

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¹ - Décision du Conseil, du 23 novembre 1994, arrêtant un programme spécifique de recherche, dedéveloppement technologique, y compris de démonstration, dans le domaine de l'énergie non nucléaire (1994-1998) (JO L 334 du 22.12.1994, p. 87)

² - Article 71 of Council Regulation No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248 p. 1) and Article 78 of its implementing Regulation, Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1)