# C_2007082EN.01002002.xml

| 14.4.2007 | EN | Official Journal of the European Union | C 82/20 |
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14.4.2007

EN

Official Journal of the European Union

C 82/20

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Appeal brought on 2 February 2007 by Masdar (UK) Ltd against the judgment of the Court of First Instance (Fifth Chamber) delivered on 16 November 2006 in Case T-333/03: Masdar (UK) Ltd v The Commission of the European Communities

(Case C-47/07 P)

(2007/C 82/37)

Language of the case: English

Parties

Appellant: Masdar (UK) Ltd (represented by: A. Bentley and P. Green, Barristers)

Appellant:

Other party to the proceedings: Commission of the European Communities

Other party to the proceedings:

Form of order sought

The applicant claims that the Court should:

| — | set aside in its entirety the judgment of the Court of First Instance of 16 November 2006 in Case T-333/03, MASDAR (U.K) Ltd. v Commission of the European Communities. |
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set aside in its entirety the judgment of the Court of First Instance of 16 November 2006 in Case T-333/03, MASDAR (U.K) Ltd. v Commission of the European Communities.

| — | order the Commission to pay to the Applicant:






  (i) | The sum of EUR 448,947.78 claimed by the Appellant in Case T-333/03, or failing this, the sum of EUR 249,314.35 or such other sum as the Court considers appropriate; and |
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order the Commission to pay to the Applicant:

(i)

The sum of EUR 448,947.78 claimed by the Appellant in Case T-333/03, or failing this, the sum of EUR 249,314.35 or such other sum as the Court considers appropriate; and

| (ii) | Interest on the amount in (i); |
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(ii)

Interest on the amount in (i);

| — | order the Commission to pay the costs of the present proceedings and of the proceedings before the Court of First Instance. |
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order the Commission to pay the costs of the present proceedings and of the proceedings before the Court of First Instance.

Pleas in law and main arguments

The Appellant submits that the judgment of the Court of First Instance (‘CFI’) should be set aside on the following grounds:

| 1. | The CFI erred in law when it characterised the Appellant as merely having acted pursuant to its contractual obligations towards Helmico, as a result of which the CFI dismissed the Appellant's claims founded on unjust enrichment and negotiorum gestio. In doing so, the CFI failed to have regard to the Appellant's entitlement to terminate the sub-contracts as at 2 October 1998. |
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1.

The CFI erred in law when it characterised the Appellant as merely having acted pursuant to its contractual obligations towards Helmico, as a result of which the CFI dismissed the Appellant's claims founded on unjust enrichment and negotiorum gestio. In doing so, the CFI failed to have regard to the Appellant's entitlement to terminate the sub-contracts as at 2 October 1998.

negotiorum gestio

| 2. | Irrespective of whether the Appellant acted pursuant to a contractual obligation towards Helmico or not, the CFI erred in law by failing to take into consideration (i) the fact that the Commission was not in the position of an ordinary contractor, but had powers of recovery which it could exercise pursuant to the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (1) and (ii) how such powers were exercised by the Commission. |
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2.

Irrespective of whether the Appellant acted pursuant to a contractual obligation towards Helmico or not, the CFI erred in law by failing to take into consideration (i) the fact that the Commission was not in the position of an ordinary contractor, but had powers of recovery which it could exercise pursuant to the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (1) and (ii) how such powers were exercised by the Commission.

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| 3. | The CFI erred in law in holding that (i) the Appellant cannot be said to have acted benevolently, (ii) the Commission was able to manage the project itself, and (iii) there is a requirement that a person claiming under the principle of negotiorum gestio must necessarily act without the knowledge of the principal. |
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3.

The CFI erred in law in holding that (i) the Appellant cannot be said to have acted benevolently, (ii) the Commission was able to manage the project itself, and (iii) there is a requirement that a person claiming under the principle of negotiorum gestio must necessarily act without the knowledge of the principal.

negotiorum gestio

| 4. | The CFI's findings on the pleas of unjust enrichment and negotiorum gestio on the one hand, and the plea of legitimate expectations on the other hand, are inconsistent. |
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4.

The CFI's findings on the pleas of unjust enrichment and negotiorum gestio on the one hand, and the plea of legitimate expectations on the other hand, are inconsistent.

negotiorum gestio

| 5. | In rejecting the Appellant's claim based on negligence or fault liability, the CFI erred in considering that insufficient argument had been adduced by the Appellant, given that the matter speaks for itself on the facts of this case in the particular circumstances where the Commission exercises powers of recovery under the Financial Regulation. |
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5.

In rejecting the Appellant's claim based on negligence or fault liability, the CFI erred in considering that insufficient argument had been adduced by the Appellant, given that the matter speaks for itself on the facts of this case in the particular circumstances where the Commission exercises powers of recovery under the Financial Regulation.

| 6. | The CFI erred in holding (i) that there was no evidence before the Court to prove that the assurances relied upon by the Appellant were communicated at the meeting of 2 October 1998 and (ii) that it was highly unlikely that such assurances were communicated. |
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6.

The CFI erred in holding (i) that there was no evidence before the Court to prove that the assurances relied upon by the Appellant were communicated at the meeting of 2 October 1998 and (ii) that it was highly unlikely that such assurances were communicated.

| 7. | The CFI erred in law in holding that the Commission's failure to make a note of the meeting of 2 October 1998 established the informality of that meeting and, from this error, it erroneously discounted the possibility of the Commission having communicated such assurances by one means or another. Further, the CFI wrongly took into account the manner by which the assurances were conveyed, and erroneously failed to take into account the proper context, namely a context in which the Commission had committed itself to do no more than pay for work done pursuant to a properly constituted contractual specification, and for which the Commission already had a budget. |
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7.

The CFI erred in law in holding that the Commission's failure to make a note of the meeting of 2 October 1998 established the informality of that meeting and, from this error, it erroneously discounted the possibility of the Commission having communicated such assurances by one means or another. Further, the CFI wrongly took into account the manner by which the assurances were conveyed, and erroneously failed to take into account the proper context, namely a context in which the Commission had committed itself to do no more than pay for work done pursuant to a properly constituted contractual specification, and for which the Commission already had a budget.

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(1)  OJ L 356, p. 1.

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