Judgment — ECLI:EU:T:2012:435
Date: 2012-09-19
Language of the case: French
Court formation: Third Chamber
Subject matter: Economic, social and territorial cohesion
Procedure: Action for damages - successful;Action for damages - unfounded;Arbitration clause - unfounded;Arbitration clause - successful
Origin: France

summary form, coherently and intelligibly in the application itself. 100 In the present case, the Commission merely claimed the sum of EUR 5 000, without establishing in what respect it corresponds to the sum of the different heads of damage which it claims. It is therefore necessary to reject that claim as based on insufficiently precise argument. c) Conclusion on the Commission’s application 101 It is therefore necessary to uphold the Commission’s claims against SEMEA for reimbursement of the capital sum of EUR 41 012 and to order SEMEA to pay late-payment interest at the annual statutory rate applied in France from 27 April 1993 until that capital sum has been paid in full. Moreover, it must be ordered that the late-payment interest itself shall produce interest both at 15 April 2010 and on each annual due date thereafter. 102 The Commission’s action must be dismissed as to the remainder. 2. SEMEA’s counterclaim 103 In case the Court upholds the Commission’s claim for reimbursement, SEMEA has lodged a counterclaim. That counterclaim is based on Article 340 TFEU and Article 41(3) of the Charter of Fundamental Rights of the European Union (OJ 2007, C 303, p. 1). It is therefore a claim based on the Union’s non-contractual liability. 104 SEMEA considers that the Commission infringed its duty of sound administration and the principle of legal certainty by waiting 12 years after its claim for reimbursement of 27 April 1993 before approaching SEMEA again on 18 November 2005. Consequently, SEMEA argues, the Commission is required to pay compensation in the amount which the Court has ordered SEMEA to pay. 105 The Court considers that it is necessary to examine, first of all, the substance of that counterclaim (Case C‑23/00 P Council v Boehringer [2002] ECR I‑1873, paragraphs 51 and 52, and Case C‑233/02 France v Commission [2004] ECR I‑2759, paragraph 26). 106 According to settled case-law, in order for the Union to incur non-contractual liability, a number of requirements must be satisfied, namely that the alleged conduct of the institutions is unlawful, that the damage is actual and certain and that there is a direct causal link between the conduct of the institution concerned and the damage relied upon (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16, and Case T‑231/97 New Europe Consulting and Brown v Commission [1999] ECR II‑2403, paragraph 29). 107 Where any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions for non-contractual liability (Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraph 81, and Case T‑195/08 Antwerpse Bouwwerken v Commission [2009] ECR II‑4439, paragraph 91). 108 In the present case, it need only be stated that there is no direct causal link between the conduct of the Commission and the damage relied upon. 109 As regards the principal sum of EUR 41 012 which SEMEA has to repay to the Commission, suffice it to say that it is a debt based on the refund of an overpayment and that, since that debt is not time-barred, SEMEA would have had to pay it in any event, even if the Commission had not waited 12 years to approach SEMEA again. 110 As regards the payment of late-payment interest, it should be pointed out that the accumulation of interest is a direct consequence of the conduct of SEMEA, which did not respond to the Commission’s request for reimbursement. There is therefore no direct causal link between the Commission’s conduct and that damage. 111 SEMEA’s counterclaim must therefore be dismissed, without the need to examine its admissibility. B – Case T‑572/10 112 The subject-matter of Case T‑572/10 is the Commission’s application against the Commune de Millau and the Commune de Millau’s counterclaim. 1. The Commission’s application 113 The Commission lodged its application against the Commune de Millau after learning that the Commune had decided to take over all SEMEA’s assets and liabilities. a) The competence of the General Court 114 The Commission considers that the Commune de Millau is subject to an arbitration clause within the meaning of Article 272 TFEU. On the other hand, without formally raising a plea of lack of competence by separate document pursuant to Article 114 of the Rules of Procedure, the Commune de Millau claims that the Commission’s application must be dismissed for having been brought before a court which does not have jurisdiction to hear it. It considers that the Commission cannot set up against it an arbitration clause within the meaning of Article 272 TFEU. 115 In that regard, it should be pointed out, first of all, that the Court does not have jurisdiction to adjudicate, at first instance, on contractual cases brought before it, except in accordance with an arbitration clause. To do so would be to extend its jurisdiction beyond the limits exhaustively placed by Article 272 TFEU on the disputes of which it may take cognisance (see, to that effect, the orders in Case T‑186/96 Mutual Aid Administration Services v Commission [1997] ECR II‑1633, paragraph 47, and Case T‑360/05 Natexis Banques Populaires v Robobat [2005] ECR II‑0000, paragraph 12). 116 As the jurisdiction of the General Court under Article 272 TFEU derogates from ordinary law, it must be given a restrictive interpretation (Case 426/85 Commission v Zoubek [1986] ECR 4057, paragraph 11). Accordingly, the Court cannot adjudicate on a contractual dispute unless it is the express intention of the parties to confer that jurisdiction upon it (order in Mutual Aid Administration Services v Commission, paragraph 115 above, paragraph 46, and judgment in Case T‑259/09 Commission v Arci Nuova associazione comitato di Cagliari and Gessa [2010] ECR II‑0000, paragraph 39). Only the parties to an arbitration clause may therefore be parties to an action brought on the basis of Article 272 TFEU (Case 23/76 Pellegrini v Commission and Flexon-Italia [1976] ECR 1807, paragraph 31, and Commission v Arci Nuova associazione comitato di Cagliari and Gessa, cited above, paragraph 40). 117 Secondly, as for the law under which it is necessary to verify whether a valid arbitration clause has been concluded between the parties to the dispute, it should be pointed out that the Court’s jurisdiction to hear the case concerning a contract pursuant to an arbitration clause is determined, as a general rule, solely with regard to the provisions of Article 272 TFEU and the stipulations of the arbitration clause itself. 118 That approach is consistent with the generally recognised principle that each court applies its own procedural rules, including rules on jurisdiction. The procedural law of the General Court includes Article 272 TFEU, but not the corresponding procedural provisions in the national legal codes. Besides, Article 272 TFEU should be regarded in the same way by all courts as a specific provision taking precedence over divergent national law (opinion of Advocate General Lenz in Case C‑209/90 Commission v Feilhauer [1992] ECR I‑2613, I‑2622, paragraph 18). 119 That rule applies even if the Court is called upon to apply the national law governing the contract in an examination of the substance of the case (see, to that effect, the judgments in Commission v Zoubek, paragraph 116 above, paragraph 10, and Commission v Feilhauer, paragraph 118 above, paragraph 13, and the order in Case T‑449/04 Commission v Trends [2006] ECR II‑0000, paragraph 29). 120 It is in the light of the aforementioned case-law that it is necessary to examine whether the jurisdiction of the General Court to hear the Commission’s application against the Commune de Millau may be founded on an arbitration clause within the meaning of Article 272 TFEU. The ancillary principle 121 The Commission considers that the Commune de Millau is bound by the arbitration clause laid down in Article 10 of the General Terms of the contract because it has taken over SEMEA’s debt and, under French law, the arbitration clause was automatically transferred as ancillary to the debt. On the other hand the Commune de Millau argues that the arbitration clause is not an indissociable ancillary to the Commission’s claim. Moreover, there were no proceedings pending when the debt was taken over. 122 Since the Commission’s arguments are based on an application of French law, it is necessary to determine, first of all, the applicable law. 123 As has been stated, the Court’s jurisdiction to hear a case concerning a contract pursuant to an arbitration clause is determined, as a general rule, solely with regard to the provisions of Article 272 TFEU and the stipulations of the arbitration clause itself (see paragraph 117 above). 124 However, in that regard, it is necessary to bear in mind the case-law of the Court of Justice concerning jurisdiction clauses within the meaning of Article 17 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972, L 299, p. 32), as amended by the successive conventions relating to the accession of new Member States to that convention (‘the Brussels Convention’), which also applies to jurisdiction clauses within the meaning of Article 23 of Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001, L 12, p. 1). It is apparent from that case-law that, although the validity of a jurisdiction clause is governed exclusively by Union law, that is to say by Article 23 of Regulation No 44/2001, the question of whether a jurisdiction clause agreed between a carrier and a shipper, incorporated in a bill of lading, produces effects vis-à-vis a third party holding the bill of lading who, by acquiring the bill of lading, has succeeded to the shipper’s rights and obligations, is determined in accordance with the law applicable to the contract (Case 71/83 Russ [1984] ECR 2417, paragraph 24; Case C‑159/97 Castelletti [1999] ECR I‑1597, paragraph 41; and Case C‑387/98 Coreck [2000] ECR I‑9337, paragraphs 22 to 27). 125 In principle, it is therefore necessary to examine whether that case-law, according to which the law applicable to the contract governs matters of succession to rights and obligations, may be applied in the present case. That requires an application which is similar on two counts. First, the question arises whether it may be applied not only to a third party holding a bill of lading, but also to a third party who, having taken over a debt, succeeds the original debtor and automatically takes over the accessories of that debt. Second, the question arises whether that case-law concerning jurisdiction clauses within the meaning of Article 17 of the Brussels Convention and Article 23 of Regulation No 44/2001 is also applicable to an arbitration clause within the meaning of Article 272 TFEU. 126 However, for the purposes of the present case, it is not necessary to reply to those questions. It must be stated that, even if French law were applicable, the arbitration clause concluded between SEMEA and the Commission was not transferred to the Commune de Millau as an ancillary part of SEMEA’s debt. 127 Indeed, as has been stated (see paragraph 78 above), without the consent of the Commission, any take-over of SEMEA’s debt by the Commune de Millau would not have had the effect of releasing SEMEA from its debt to the Union and of making the Commune de Millau succeed it as debtor. Since the take-over of the debt by the Commune de Millau has given rise to a debt owed by the Commune to the Union, this can only be a stipulation for the benefit of a third party. Such a stipulation gives rise to a new obligation of the Commune de Millau which is legally separate from the obligation by which SEMEA is bound. Consequently, since there has been no transfer of SEMEA’s debt to the Commune de Millau, the arbitration clause binding SEMEA cannot have been transferred as ancillary to SEMEA’s debt. 128 Admittedly, French law does not, in principle, preclude the Commune de Millau as promissor and SEMEA as stipulator of a stipulation for the benefit of a third party, from modelling the content and regime of a debt owed by the Commune de Millau to the Union on those of SEMEA’s debt to the Union. However, in that case, the take-over of the arbitration clause is not the consequence of the succession to rights and obligations within the meaning of the aforementioned case-law, but is the result of the intention of the parties. Therefore, this matter is governed not by French law, but directly by Article 272 TFEU (see paragraphs 117 and 118 above). The conclusion of an arbitration clause 129 Next, it is necessary to examine the Commission’s argument that, by taking over SEMEA’s debt, the Commune de Millau accepted an arbitration clause as laid down in Article 10 of the General Terms of the contract. 130 First of all, it must be stated that Commune de Millau and the Commission have not concluded any contract and, therefore, any arbitration clause. 131 Secondly, it must be stated that, in accordance with the aforementioned case-law (see paragraphs 115 to 119 above), the mere fact that, under the French law applicable to the contract, SEMEA and the Commune de Millau may be jointly and severally liable for the debt does not provide a legal basis for the jurisdiction of the General Court under Article 272 TFEU (Case T‑44/06 Commission v Hellenic Ventures and Others [2010] ECR II‑0000, paragraph 54). 132 However, in the light of the circumstances of this case, the question arises as to whether, by means of a stipulation for the benefit of a third party between SEMEA and the Commune de Millau, the latter is subject to an arbitration clause in favour of the Union. 133 Admittedly, the wording of Article 272 TFEU provides only for the possibility of incorporating an arbitration clause in the contract concluded by the Union. It therefore does not expressly provide that such a clause may be stipulated for the benefit of another. Moreover, the jurisdiction of the General Court deriving from Article 272 TFEU must be interpreted restrictively (see paragraph 116 above). 134 However, since an arbitration clause is of a contractual nature, there is nothing to prevent the existence of such a clause being examined in the light of the general principles of contract law deriving from the legal orders of the Member States. Indeed, even if one of those principles states that a contract is binding only on the parties, that principle does not preclude those two parties conferring a right on a third party by means of a stipulation for the benefit of a third party. 135 Moreover, the insertion, in the contract between the Commune de Millau and SEMEA, of an arbitration clause allowing the Union to submit a dispute between itself and the Commune de Millau to the General Court is not contrary to the requirement in Article 272 TFEU that such a clause be contained in the contract concluded by the Union or on its behalf. A provision in favour of a third party may be regarded as a provision made on behalf of the Union. On the other hand, that requirement in Article 272 TFEU must be interpreted as precluding the jurisdiction of the General Court over disputes concerning a contract being founded against the wishes of the Union. An arbitration clause stipulated solely in favour of the Union cannot be enforced against its will. 136 Finally, the procedural nature of an arbitration clause does not preclude such a clause being stipulated in favour of the third party. In so far as concerns jurisdiction clauses within the meaning of Article 17 of the Brussels Convention and Article 23 of Regulation No 44/2001, the Court has already accepted such a clause (Case 201/82 Gerling Konzern Speziale Kreditversicherung and Others [1983] ECR 2503, paragraphs 10 to 20). 137 In the present case, it is therefore necessary to examine whether SEMEA and the Commune de Millau agreed that the latter was to be subject to an arbitration clause within the meaning of Article 272 TFEU, stipulated in favour of the Union. 138 It is apparent from the general principles of contract law that the existence of a provision in favour of a third party may result from an express agreement between the stipulator and the promissor seeking to confer a right on a third party. The existence of such a provision in favour of a third-party may also arise from the purpose of the contract or the circumstances of the case. 139 In the present case, it is apparent from the circumstances of the case, particularly from the elements of fact and law established by the minutes of the municipal council of the Commune de Millau of 18 December 2010, that the Commune de Millau and SEMEA concluded an agreement according to which the Commune de Millau was to take over SEMEA’s liabilities and receive its assets in consideration. It is clear from those minutes that the Commune de Millau had been informed of SEMEA’s dispute with the Union and was to take over SEMEA’s debt ‘with full knowledge of the facts’. It is also clear from those minutes that, in consideration, SEMEA was to transfer the sum of EUR 82 719,76, which corresponded to its assets, to the Commune de Millau in order to enable it to cover the risk of proceedings arising from the take-over of its debt. 140 It is true that an agreement relating to the payment of the debt of one party by another party does not necessarily have the effect of creating a new right in favour of the creditor. It may be a purely internal take-over or a payment instruction. However, in the present case, it is apparent from the purpose of the agreement between SEMEA and the Commune de Millau and from the circumstances of the case that those two parties wished to create a debt owed to the Union by the Commune de Millau. First, it must be stated that the objective pursued by SEMEA and the Commune de Millau was to pass on actual or potential creditors of SEMEA to the Commune de Millau. Second, it should be pointed out that, in consideration for the take-over of its debt by the Commune de Millau, SEMEA transferred all its assets to the Commune de Millau, namely EUR 82 719,76. As is apparent from the aforementioned minutes, the payment of that sum was to enable the Commune de Millau to cover the risk of proceedings arising out of the take-over of the debt, which also pleads in favour of the creation of a debt owed by the Commune de Millau to the Union. Finally, it cannot be presumed that the Commune de Millau, which is bound by the duty of cooperation in good faith between the Union and the Member States, intended to take over all SEMEA’s assets, thus allowing SEMEA to become a completely impoverished debtor, without itself giving an undertaking to the Union to pay SEMEA’s debt. 141 As for the take-over of the arbitration clause, the Commune de Millau claims that it only agreed to take over SEMEA’s debt, not the arbitration clause. It is apparent from the purpose of the agreement between SEMEA and the Commune de Millau and the circumstances of the case that, at the time of the take-over, the Commune de Millau intended to submit itself to an arbitration clause such as that contained in Article 10 of the General Terms of the contract. As has been stated above, the Commune de Millau took over SEMEA’s debt to the Union in full knowledge of the facts, and therefore with knowledge of the dispute between SEMEA and the Union concerning the disputed debt. It therefore undertook to pay a debt the content and regime of which were modelled on those of SEMEA’s debt. Since the latter was bound by the arbitration clause laid down in Article 10 of the General Terms of the contract for all disputes concerning the contract, the Commune de Millau is therefore also subject to such a clause. Moreover, it must be said that neither the Commune de Millau nor SEMEA have adduced evidence to show that they expressed a reservation with regard to the take-over of the arbitration clause by the Commune de Millau before the Commission’s application against SEMEA was lodged. Furthermore, an argument in favour of the Commune de Millau being subject to the arbitration clause is the fact that SEMEA and the Commune de Millau could not reasonably expect actual or potential creditors of SEMEA to agree to seek recourse against the Commune de Millau if the content or regime of their claim against the Commune de Millau were less favourable than their claim against SEMEA. 142 Finally, this interpretation of the intentions of the Commune de Millau and SEMEA cannot be countered by the argument that they intended to transfer SEMEA’s debt to the Commune de Millau with the effect of releasing SEMEA and that, in the absence of such an effect, the Commune de Millau refused to agree to be subject to the arbitration clause. Such an error would be inexcusable because, for obvious reasons of creditor protection, such a debt transfer could not have taken place without the Union’s consent. 143 Consequently, it must be held that the Commune de Millau and SEMEA agreed, for the benefit of the Union, that it could rely on an arbitration clause as provided in Article 10 of the General Terms of the contract as regards the Commune de Millau. 144 The existence of such an arbitration clause is unaffected by the fact that the Commune de Millau disputed its existence after the Commission’s application had been lodged. Whilst the stipulator and the promissor of a provision in favour of a third party may, in certain circumstances, delete or amend the clause conferring the right in question, under the general principles of contract law that is no longer possible after the third party has notified the promissor or stipulator that he wishes to exercise his right. 145 As for the formal requirements for an arbitration clause within the meaning of Article 272 TFEU, it should be pointed out that that provision does not impose any special formal requirements. However, Article 44(5a) of the Rules of Procedure provides that an application submitted under Article 272 TFEU must be accompanied by a copy of the clause conferring jurisdiction on the Union courts. It is apparent from that provision that the arbitration clause must, as a rule, be stipulated in writing. 146 It should be pointed out that that article of the Rules of Procedure has an evidential purpose and the formal requirement which it imposes must therefore be deemed to have been fulfilled where the documents produced by the applicant provide the General Court with sufficient information on the agreement between the parties to the action to remove the dispute between them from the purview of the national courts and to submit it to the Union courts (Case T‑271/04 Citymo v Commission [2007] ECR II‑1375, paragraph 56). 147 In the present case, the Commission annexed to its application the minutes of 18 December 2008, which show that the Commune de Millau and SEMEA had decided that the Commune de Millau was to take over SEMEA’s liabilities, and the contract, which shows the content of the arbitration clause concluded between the Union and SEMEA. It therefore fulfilled the procedural requirement imposed by Article 44(5a) of the Rules of Procedure. 148 Finally, as for the argument put forward by the Commune de Millau, that Article 2060 of the Civil Code and Article 48 of the Code of Civil Procedure preclude the Commune being subject to an arbitration clause under Article 272 TFEU, it need only be pointed out that, even if those rules were conflicting, Article 272 TFEU should be regarded in the same way by all courts as a specific provision taking precedence over divergent national law (see paragraphs 117 and 118 above). 149 In the light of the foregoing observations, it must be concluded that the Commission may invoke an arbitration clause against the Commune de Millau and that the General Court therefore has jurisdiction to adjudicate on the Commission’s application against the Commune de Millau in accordance with Article 272 TFEU and the first subparagraph of Article 256(1) TFEU. b) Substance of the application 150 By its application, the Commission requests the Court to order the Commune de Millau to reimburse the principal sum of EUR 41 012, and to pay interest and also the sum of EUR 5 000 as compensation for the damage suffered. The claim for reimbursement of the principal sum 151 In its first head of claim, the Commission requests, first, that the Commune de Millau be ordered to pay EUR 41 012. 152 Since the same claim is founded against SEMEA (paragraphs 60 to 89 above), the question only arises as to whether, under French law, the Commune de Millau is also liable for SEMEA’s debt. 153 In the absence of Union consent to the take-over of SEMEA’s debt by the Commune de Millau, it is necessary to examine whether the Commune de Millau promised the Union to pay SEMEA’s debt, by means of a provision in favour of a third party. 154 Article 1165 of the Civil Code does indeed provide that agreements take effect only between the contracting parties. However, it is also apparent from that article that agreements may benefit a third party in the case of a stipulation for the benefit of a third party as laid down by Article 1121 of the Civil Code (Conseil d’État, 20 December 1989, No 50815; Conseil d’État, 20 January 1992, No 46624; Conseil d’État, 19 July 2010, No 318126, and Cour administrative d’appel de Marseille (Marseille Administrative Court of Appeal), 21 October 2011, No 09MA00782). 155 In that regard, it should be pointed out, first, that it is apparent from paragraphs 139 and 140 above that the Commune de Millau and SEMEA agreed to create a new debt owed to the Union by the Commune de Millau. 156 It must also be stated that the further conditions laid down by Article 1121 of the Civil Code for the conclusion of a stipulation for the benefit of a third party are satisfied. In so far as the stipulator is still required to have a direct and immediate interest, a simple, even non-material interest, suffices (Cass. 1re civ., 26 February 1962, Bull. civ. I, No 124, p. 119; Cass. com., Cass. 1re civ., 5 June 1984, Bull. civ. I No 182). In the present case, that interest lies in the fact that SEMEA may ask the Commune de Millau to pay its debt to the Union. 157 Moreover, the validity of the debt take-over by the Commune de Millau cannot be contested on the ground that it has no legal basis since that take-over does not have the effect of releasing SEMEA. A lack of legal basis constitutes only relative invalidity and the Commune de Millau has not claimed that the take-over of SEMEA’s debt is invalid. Moreover, that debt take-over has its legal basis in the fact that all SEMEA’s assets were also transferred to the Commune de Millau. 158 It must therefore be stated that, pursuant to Article 1121 of the Civil Code, the Commune de Millau promised to pay SEMEA’s debt. The Union’s claim against the Commune de Millau for the reimbursement of EUR 41 012 is therefore well founded. The claim for interest 159 In its first head of claim, the Commission requests, secondly, that the Commune de Millau be ordered to pay late-payment interest at the annual statutory rate applicable in France. It claims that the Court should order the Commune de Millau to pay interest from 10 March 1992, in accordance with Article 1378 of the Civil Code and, in the alternative, from 27 April 1993 in accordance with Article 1153 of the Civil Code. In its second head of claim, the Commission claims that the Court should order that the interest should itself bear interest in accordance with Article 1154 of the Civil Code. 160 For the aforementioned reasons (see paragraphs 152 to 158 and 92 to 95 above), it is necessary to reject the claim for late-payment interest from 10 March 1992 and to order the Commune de Millau to pay it from 27 April 1993. 161 As for the request for capitalisation of the interest pursuant to Article 1154 of the Civil Code, it is necessary to refer, first of all, to paragraph 97 above. Next, it must be stated that, with regard to the Commune de Millau, the request for the Court to order the capitalisation of the interest was made only in the Commission’s application lodged with the Court Registry on 21 December 2010. At that date, interest had been owed for at least one whole year. On that legal basis, the Commission can therefore request capitalisation of the interest only from 21 December 2010. 162 Owing to the take-over of SEMEA’s debt by the Commune de Millau, the Commission may request capitalisation of the interest from the date on which the Commission’s application against SEMEA was lodged, that is to say, from 15 April 2010. It is apparent from the purpose of the agreement concluded between the Commune de Millau and SEMEA and from the circumstances of the case that the Commune de Millau is required to pay all the interest owed by SEMEA. First, the Commune de Millau has promised the Union to pay SEMEA’s debt. Second, since all SEMEA’s assets have been transferred to the Commune de Millau, SEMEA is no longer able to respond to the Commission’s claim. In the light of those circumstances, it must therefore be held for the aforementioned reasons (paragraphs 139 and 140 above) that it is clear from the shared intention of SEMEA and the Commune de Millau that the latter was to be required to pay all the interest owed by SEMEA and therefore also the capitalisation of the interest from the time the Commission’s application against SEMEA was lodged. 163 It is therefore appropriate to order that the interest shall itself bear interest both at the date on which the Commission’s application against SEMEA was lodged, namely 15 April 2010, and on each annual due date thereafter. The claim for compensation 164 In its third head of claim, the Commission requests the Court to order the Commune de Millau to pay the sum of EUR 5 000 as compensation for the damage suffered in respect of SEMEA’s wrongful obstruction of legal process. 165 This claim must be rejected for the reasons stated in paragraphs 98 to 100 above. c) Conclusion on the Commission’s application 166 It is therefore necessary to uphold the Commission’s claims against the Commune de Millau for reimbursement of the principal sum of EUR 41 012 and to order it to pay late-payment interest at the annual statutory rate applied in France from 27 April 1993 until that principal sum has been paid in full. Moreover, it must be ordered that the late-payment interest shall itself bear interest both at 15 April 2010 and on each annual due date thereafter. 167 The Commission’s action must be dismissed as to the remainder. 2. The counterclaim of the Commune de Millau 168 In case the Court upholds the Commission’s claim for reimbursement, SEMEA has lodged a counterclaim. That counterclaim is based on Article 340 TFEU and Article 41(3) of the Charter of Fundamental Rights of the European Union. It is therefore a claim based on the Union’s non-contractual liability. 169 The Commune de Millau considers that the Commission infringed its duty of sound administration and the principle of legal certainty by waiting 12 years after its claim for reimbursement of 27 April 1993 before approaching SEMEA again on 18 November 2005. Consequently, the Commission is required to pay compensation in the amount which the Court has ordered the Commune de Millau to pay. 170 The Court considers that it is first necessary to examine the substance of this counterclaim (Council v Boehringer, paragraph 105 above, paragraphs 51 and 52, and France v Commission, paragraph 105 above, paragraph 26). 171 For the same reasons as those set out in paragraphs 106 to 110 above, the counterclaim of the Commune de Millau is unfounded. 172 The counterclaim of the Commune de Millau must therefore be dismissed. C – Joint and several liability 173 Since SEMEA and the Commune de Millau are both required to repay the principal sum plus late-payment interest and since the Commission is entitled to only one payment, SEMEA and the Commune de Millau must be ordered to make the payment jointly and severally, as the Commission requests. Costs 174 Under Article 87(2) and (3) 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 and where there are several unsuccessful parties the General Court may decide how the costs are to be shared. Since SEMEA and the Commune de Millau have been unsuccessful in their main submissions and the Commission has applied for costs, SEMEA and the Commune de Millau must be ordered to pay the costs. On those grounds, THE GENERAL COURT (Third Chamber) hereby: 1. Joins Cases T‑168/10 and T‑572/10 for the purposes of the judgment; 2. Orders the Société d’économie mixte d’équipement de l’Aveyron (SEMEA) and the Commune de Millau (France) jointly and severally to pay the principal sum of EUR 41 012 to the European Commission, plus late-payment interest at the annual statutory rate applied in France from 27 April 1993 until that sum has been paid in full. The interest outstanding on 15 April 2010, and on each annual due date thereafter, shall be capitalised in order itself to bear interest; 3. Dismisses the Commission’s applications in Cases T‑168/10 and T‑572/10 as to the remainder; 4. Dismisses SEMEA’s counterclaim in Case T‑168/10 and the counterclaim of the Commune de Millau in Case T‑572/10; 5. Orders SEMEA to pay its own costs and also the Commission’s costs in Case T‑168/10; 6. Orders the Commune de Millau to pay its own costs and also the Commission’s costs in Case T‑572/10. Czúcz Labucka Gratsias Delivered in open court in Luxembourg on 19 September 2012. [Signatures] Table of contents Background to the dispute Procedure before the General Court and forms of order sought by the parties A – In Case T‑168/10 B – In Case T‑572/10 Law A – Case T‑168/10 1. The Commission’s application a) Admissibility of the application b) The substance of the action The claim for reimbursement of the principal sum – The applicable legal system – The Union’s claim against SEMEA – The objections raised by SEMEA The claim for payment of interest on overdue payments The claim for compensation c) Conclusion on the Commission’s application 2. SEMEA’s counterclaim B – Case T‑572/10 1. The Commission’s application a) The competence of the General Court The ancillary principle The conclusion of an arbitration clause b) Substance of the application The claim for reimbursement of the principal sum The claim for interest The claim for compensation c) Conclusion on the Commission’s application 2. The counterclaim of the Commune de Millau C – Joint and several liability Costs * Language of the case: French.