Opinion of the Advocate General — ECLI:EU:C:2000:319
Date: 2000-06-15
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Research and technological development
Procedure: Arbitration clause
Origin: Italy

summary cost statement for the period 1 September 1991 to 26 May 1993. 42. Having regard to the inadequacy of the evidence adduced by the defendant, the claim for reimbursement of ECU 46 307 must be allowed. Interest 43. The Commission also claims that TVR should be ordered to pay interest at the agreed rate on the sums of ECU 165 000 and ECU 46 307 from 21 December 1991. 44. TVR has submitted no argument on that point. 45. According to the second subparagraph of Article 8(4) of Annex II to the contract, in the event of termination of the contract by the Commission, the party in breach must reimburse not only the sums advanced by the Commission but also interest at the agreed rate on those sums from the date on which payments were received. The rate of interest applicable is the rate applied by the European Monetary Cooperation Fund for its operations in ecus, published on the first working day for each month, increased by 2 percentage points. 46. As it must make reimbursement to the Commission of the total sum of ECU 211 307 representing its primary obligation, TVR must also discharge its secondary obligation by paying interest at the agreed rate on that sum from 21 December 1991, the date on which it accepts that it received the advance of ECU 230 000. Compensation for damage 47. Relying on Article 1453 of the Italian Civil Code, the Commission also claims that TVR should be ordered to pay the sum of ECU 20 000 by way of compensation for the damage which the Commission says it has sustained as a result of non-performance of the contract. 48. In that regard, it points out, first, that some of its officials spent a large number of hours monitoring the defendant's activities and requesting from it the periodic reports provided for in the contract. Second, the Commission was obliged to employ the services of a firm of auditors in order to audit TVR's work. Third, the Commissionwas unable to enjoy the advantages provided for in Article 19 of Annex II to the contract and thus profit from the knowledge acquired through the research which it had funded or from the exploitation of the patents which might have been taken out on that occasion. Fourth, by entering into a contract with a party which did not honour its commitments, the Commission suffered a loss of credibility in the eyes of all those with a potential interest in entering into a contract with it. 49. TVR contends that the Commission has failed to show that it suffered the alleged loss. 50. First of all, it should be pointed out that, under Article 11 of the contract, the contract is to be governed by Italian law. 51. Even supposing that Article 1453 of the Italian Civil Code, which provides that a contractor is entitled to demand that the defaulting party compensate it for its loss, applies only where the contract is terminated by the court, the fact remains that, under Article 1218 of that code, any party who does not properly discharge his obligations is required to make good any consequent loss unless he can show that his failure to do so was due to force majeure. 52. It is therefore necessary to ascertain whether the Commission has succeeded in establishing that it actually sustained the harm alleged. 53. As regards the costs allegedly caused by the additional work which the Commission's officials were required to perform in administering the contract, it should be pointed out that the combined provisions of Article 4(3) of the contract and Article 8(2)(d) of Annex II thereto gave the Commission the right to take the appropriate steps in due time in consequence the other party's failure to honour its contractual undertakings and to bring the contractual relationship to an end, in advance and unilaterally (see, in that regard, Case C-334/97 Commission v Montorio [1999] ECR I-3387, paragraph 53). 54. Since the Commission tolerated TVR's failure to honour its commitments over what in the event was quite a long period before terminating the contract, the additional costs of administering the contract during that period do not constitute harm attributable to TVR. 55. As regards the alleged harm represented by the auditor's fees, it is clear from the case-file that, for the period from September 1991 to August 1992, covered by the audit, the Commission was in a position, even before receiving the auditor's report, to allow virtually all the costs recorded by TVR. It is also clear from the case-file that several months before instructing Reconta Ernst & Young to carry out the audit, the Commission had told TVR that its revised cost statement for the abovementioned period appeared to be acceptable from the technical point of view. In those circumstances, the auditor's fees cannot in any event be attributed to TVR. 56. As regards the other heads of damage formulated by the Commission, it has adduced no specific and persuasive evidence to substantiate them. 57. The Commission's claim for damages must therefore be dismissed. 58. Pursuant to Article 2(1) of Council Regulation (EC) No 1103/97 of 17 June 1997 on certain provisions relating to the introduction of the euro (OJ 1997 L 162, p. 1), the reference to the ecu must be replaced by a reference to the euro at a rate of one euro to one ecu. Costs 59. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and TVR has been unsuccessful, the latter must be ordered to pay the costs On those grounds, THE COURT (Sixth Chamber) hereby: 1. Orders Tecnologie Vetroresina SpA (TVR) to pay the Commission of the European Communities the sum of EUR 211 307, together with interest at the agreed rate from 21 December 1991 until the debt is paid in full; 2. Dismisses the remainder of the application; 3. Orders Tecnologie Vetroresina SpA (TVR) to pay the costs. Gulmann Puissochet Schintgen Delivered in open court in Luxembourg on 16 January 2001. R. Grass C. Gulmann Registrar President of the Sixth Chamber 1: Language of the case: Italian.