Action brought on 2 October 2020 – Egis Bâtiments International and InCA v Parliament
(Case T-610/10)
Language of the case: French
Parties
Applicants: Egis Bâtiments International (Montreuil, France) and InCA – Ingénieurs Conseils Associés Sàrl (Niederanven, Luxembourg) (represented by: A. Rodesch and R. Jazbinsek, lawyers)
Defendant: European Parliament
Form of order sought
The applicants claim that the Court should:
declare the application formally admissible;
declare the three pleas in law well founded;
accordingly, declare that the European Parliament was not able make the following declarations, intended for publication, to the press, without infringing Article 8 of the settlement agreement of 9 April 2019 entered into by the parties or, otherwise, without breaching its duty of good faith in the performance of agreements:
[confidential] 1
declare that those statements reproduced in published press articles amount to infringements of the confidentiality clause in Article 8 of the settlement agreement of 9 June 2019 entered into by the parties or, otherwise, declare that those statements to the press amount to a failure to perform, in good faith, the settlement agreement pursuant to Article 1134 of the Luxembourg Civil Code;
accordingly, principally, order the European Union represented by the European Parliament to pay the sum of EUR 100 000 corresponding to the agreed contractual damages or, otherwise, in the alternative, to pay any other sum to be fixed ex aequo et bono representing compensation for the damage suffered as a result of the publications complained of and, in particular, of the infringement of the two applicant companies’ right to their image; that sum is to be paid jointly and severally to the simplified joint-stock company (‘société par actions simplifiée’), EGIS Bâtiment International SAS, and to the limited liability company, INCA Ingénieurs Conseils Associés SARL, since both applicants are members of the consortium EGIS Bâtiment International – Inca Ingénieurs Conseils Associés, represented by the two applicants, together with the contractual interest or, otherwise, the statutory interest in force as from 27 June 2019, date of the publication of the articles or, otherwise, as from 16 July 2019, date of the first letter before action or, otherwise, as from the present application;
owing to the European Parliament’s refusal to accept its error, the applicants had to bring proceedings and appoint a legal representative;
in the light of the current Luxembourg case-law, a litigant is entitled to the reimbursement of the costs of legal representation on the basis of the right to full compensation for the damage suffered;
accordingly, the Luxembourg Cour d’appel (Court of Appeal) has accepted that ‘it is an unchallengeable legal principle that damage resulting from any fault, whatever that fault may be, must be made good by the author of the fault and full compensation must be provided. The costs of the defence clearly constitute reparable damage and the victim will not have received full compensation should he or she have to bear those costs of defence or should the individual have to incur costs to have his or her right recognised. The right to full compensation for the damage suffered justifies the repeatability of the costs of the defence, including the costs of legal representation’ (Cour d’ appel (Court of Appeal), 4 January 2012, Pas.35, p.848);
the Luxembourg Cour de cassation (Court of Cassation) has moreover enshrined in its judgment of 9 February 2012 the principle of accumulation of the costs of the proceedings originating in strict liability and of the full reimbursement of the costs of legal representation as damages, stemming from a fault (Cour de cassation (Court of Cassation), 9 February 2012, No 5/12 J.T.L. 2012, p. 54);
accordingly, on the basis of full compensation for the damage suffered, order the European Union to pay the sum of EUR 5000 in respect of the costs of legal representation to the consortium EGIS Bâtiment International – Inca Ingénieurs Conseils Associés composed of the two applicants, together with the contractual interest or, otherwise, the statutory interest in force as from 27 June 2019, date of the publication of the articles or, otherwise, as from 16 July 2019, date of the first letter before action or, otherwise, as from the present application;
reserve to the applicants all other rights, remedies, pleas and actions to be raised;
order the defendant to pay the costs of the proceedings pursuant to Article 134(1) of the Rules of Procedure.
Pleas in law and main arguments
In support of the action, the applicant relies on three pleas in law.
First plea in law, based on the combined application of Article 8 of the settlement agreement and Article 2044 of the Luxembourg Civil Code, alleging that the European Parliament made statements in the press which infringe the principle of confidentiality which was, however, agreed between the parties in the settlement agreement relating to the termination of the contract which had bound them.
Second plea in law, based on the combined application of the settlement agreement of 9 April 2019 and Article 1134 of the Luxembourg Civil Code, in that the declarations made by the Parliament to the press breached the duty of good faith inherent to the performance of any agreement. The Parliament complained in the press that the applicants were incompetent in the performance of their task as project-manager for the monitoring of the works and the takeover and finalisation of the studies for the project to extend and modernise the Konrad Adenauer (KAD) building of the Parliament in Luxembourg, holding them responsible for the additional costs and delays to the KAD project. The applicants claim that that conduct is wrongful in a context where, first, those errors have been disputed and, second, compensation has been received in respect of an unjustified termination of the contract.
Third plea in law, based on Article 134(1) of the Rules of Procedure, in that the unsuccessful party is to be ordered to pay the costs. Reimbursement of the costs of legal representation incurred is also requested in the context of the right to full compensation for the damage suffered.
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1 Confidential data omitted.