# C_2016222EN.01000901.xml

| 20.6.2016 | EN | Official Journal of the European Union | C 222/9 |
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20.6.2016

EN

Official Journal of the European Union

C 222/9

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Appeal brought on 2 May 2016 by Ludwig-Bölkow-Systemtechnik GmbH against the judgment of the General Court (Fourth Chamber) of 19 February 2016 in Case T-53/14 Ludwig-Bölkow-Systemtechnik v Commission

(Case C-250/16 P)

(2016/C 222/11)

Language of the case: German

Parties

Appellant: Ludwig-Bölkow-Systemtechnik GmbH (represented by: M. Núñez Müller, Rechtsanwalt)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

| — | set aside point 3 of the operative part of the judgment under appeal, in which the action in Case T-53/14 was dismissed as to the remainder, and the decision on costs in that regard in point 4; |
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set aside point 3 of the operative part of the judgment under appeal, in which the action in Case T-53/14 was dismissed as to the remainder, and the decision on costs in that regard in point 4;

| — | amend point 2 of the operative part of the judgment under appeal, in which the amounts owed as liquidated damages by Ludwig-Bölkow-Systemtechnik GmbH were reduced to 10 % of the advances to be reimbursed, to the effect that Ludwig-Bölkow-Systemtechnik GmbH does not owe any amount as liquidated damages; |
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amend point 2 of the operative part of the judgment under appeal, in which the amounts owed as liquidated damages by Ludwig-Bölkow-Systemtechnik GmbH were reduced to 10 % of the advances to be reimbursed, to the effect that Ludwig-Bölkow-Systemtechnik GmbH does not owe any amount as liquidated damages;

| — | order the Commission to pay the costs incurred both in the appeal and — as an addition to point 4 of the operative part of the judgment under appeal — at first instance in Case T-53/14. |
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order the Commission to pay the costs incurred both in the appeal and — as an addition to point 4 of the operative part of the judgment under appeal — at first instance in Case T-53/14.

Grounds of appeal and main arguments

By the appeal, the appellant does not contest point 1 of the operative part of the judgment of the General Court in Case T-53/14 in which the General Court held that there was no longer any need to adjudicate on the second and third heads of claim. Nor does the appellant contest point 2 of the operative part of the judgment of the General Court in Case T-53/14 in so far as the General Court reduced the amounts owed as liquidated damages to 10 % of the advances to be reimbursed for the HyWays, HyApproval and HarmonHy projects; point 2 of the operative part of the judgment is contested only in so far as it did not, as sought in the application, reduce the amounts payable as liquidated damages to zero. Point 3 of the operative part of the judgment is contested in so far as the General Court dismissed the first and (in part) the fourth heads of claim. Point 4 of the operative part of the judgment is contested in so far as the success of the action must lead to a different ruling on costs and in so far as the General Court did not, as applied for by the appellant, order the Commission to pay the costs relating to the heads of claim on which it was found that there was no need to adjudicate.

The appellant submits that the judgment under appeal infringes the obligation to state reasons under Article 36 and Article 53(1) of the Statute of the Court of Justice, the principle of good faith, the prohibition on distortion of the evidence and the applicable Belgian law.

The judgment under appeal infringes the obligation to state reasons since the General Court erred in law in proceeding from the premiss without any substantive justification that the method used by the appellant for calculating the hourly rate capable of being reimbursed as costs led to the Commission participating in covering global costs independently of the projects.

Furthermore, the judgment under appeal infringes the general legal principle of good faith, since the lack of clarity in the general terms and conditions of the contracts at issue should have been interpreted against the Commission and in favour of the appellant, rather than transferring the risk in their application to the appellant.

The judgment under appeal also infringes the prohibition of distortion of the evidence, since the assessment of the appellant’s presentation of the facts at first instance is manifestly incorrect.

The judgment under appeal equally infringes mandatory rules of the applicable Belgian law and the principle of the right to effective judicial protection, since it wrongly upholds an ‘unambiguous’ interpretation of the general terms and conditions and thereby excludes the application of Belgian law.

Lastly, the judgment under appeal also infringes the obligation to state reasons and the applicable law, since it recognises, in connection with the liability to pay liquidated damages, that Article II.30 of the general terms and conditions infringes mandatory rules of Belgian law, yet does not conclude that Article II.30 of the general terms and conditions is inapplicable but errs in law in making a reduction in damages which preserves that article’s validity.

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