Judgment of the Court of First Instance (Fifth Chamber) of 10 June 2009 — ArchiMEDES v Commission

(Joined Cases T-396/05 and T-397/05)

‛Arbitration clause — Contract concerning a project for renovating an urban property complex — Reimbursement of part of the sums advanced — Claim that the Commission be ordered to pay the balance — Counterclaim by the Commission — Action for annulment — Recovery decision — Debit note — Measures of a contractual nature — Inadmissibility — Set-off of claims’

1. Actions for annulment — Action relating in reality to a contractual dispute — Lack of jurisdiction of the Community judicature — Inadmissibility (Arts 230 EC, 238 EC, 240 EC and 249 EC) (see paras 54, 55)

2. Procedure — Compulsory intervention — Application based on principles common to the laws of procedure of the Member States — No failure to fulfil the requirements of the Rules of Procedure of the Court of First Instance as regards the procedural status of third parties — Inadmissibility (Rules of Procedure of the Court of First Instance, Arts 115 and 123) (see paras 70-72)

3. Procedure — Referral to the Court of First Instance under an arbitration clause — Contract granting Community financial assistance for carrying out a project for renovating an urban property complex — Unilateral termination of the contract by the Commission (Art. 238 EC) (see paras 80-82, 90-99, 103-109, 113-122)

4. Procedure — Referral to the Court of First Instance under an arbitration clause — Contract granting Community financial assistance for carrying out a project for renovating an urban property complex — Unilateral termination of the contract by the Commission (Art. 238 EC) (see paras 125-134, 137-139)

5. Actions for annulment — Interest in bringing proceedings — Plea alleging infringement of essential procedural requirements — Annulment capable only of giving rise to an identical new decision on the substance — No interest (Art. 230 EC) (see para. 140)

Re:

— In Case T-396/05, application for annulment based on Article 230 EC, first, of the Commission decision to recover the advances paid under its contract with the applicant and, secondly, of the Commission decision to impose a set-off of claims on the applicant;

— In Case T-397/05, application based on contractual liability under Article 238 EC, seeking an order that the Commission pay the balance of the subsidy provided for by that contract.

Operative part

The Court:

1. In Case T-396/05, dismisses the action as inadmissible in so far as it is directed against debit note No 3240705638 and the recovery decision contained in the letter of the Commission of the European Communities of 30 August 2005;

2. In Case T-396/05, no longer finds any need to adjudicate on the application for annulment of the Commission decision contained in its letter of 5 October 2005 to impose upon Architecture, microclimat, énergies douces — Europe et Sud SARL (ArchiMEDES) a set-off of their mutual claims;

3. In Case T-397/05, dismisses the action;

4. In Case T-397/05, orders ArchiMEDES to pay to the Commission the sum of EUR 148256.86 together with default interest at the rate prescribed by French law, without that rate exceeding 5.5% per annum, until the debt is discharged in full;

5. In Case T-396/05, orders ArchiMEDES to pay, in addition to its own costs, half of the costs incurred by the Commission, including those relating to the interlocutory proceedings in Case T-396/05 R;