4.

The solution of the dispute before the Court does not in my view depend on the classification of the instruments in question under one or other of the five headings specified in Clause 1 (1) of the contract. It is necessary in the first place to ascertain whether a specific agreement has been concluded between the parties which provides for the reimbursement of 75% of the leasing costs. Professor Schwandt's initial proposal, as has moreover been confirmed at the hearing, did not contain any indication either of the need for such instruments or of the methods of procuring them. Professor Schwandt's letter of 25 August 1982 requesting an adjustment in the apportionment of total expenditure between the items initially stipulated (Annex K 13) and the Commission's acceptance of that request dated 18 October 1982 (Annex K 14) are both silent in that respect. Accordingly, in the absence of a specific agreement reflecting the will of the parties, the only course of action is to refer to the contract itself. The agreement concluded between the parties seems to be based on the following reasoning: the parties agree that such research contracts must be entrusted to bodies which already possess the necessary basic apparatus and that such contracts cannot have as their purpose to provide those bodies with such apparatus. Those are the circumstances in which the contract confers on the applicant the possibility of acquiring additional specific materials which are essential in order to bring the research to a successful conclusion. Those materials are of two kinds: Nondurable materials which are incapable of being used for any other purpose on completion of the research: the Commission contributes up to 75% of the cost of such materials, not exceeding the sum stipulated in the contract (Clause 1 (1), points 1 and 3 of the contract and Annex I, Financial provisions, V, Guidelines, point 3); Durable materials which, on completion of the research project, retain their value as assets for the party contracting with the Commission: the Commission's contribution is limited to 20%, not exceeding the aforesaid maximum contribution towards the cost of such apparatus (Clause 5 (3) of the contract and Annex I, IV). The contract provides that additional apparatus of that kind may be obtained only by purchase. Consequently, even though its choice may have been determined by a technical requirement, the applicant cannot, in the absence of an express agreement in that regard, rely on the aforesaid provisions in order to obtain a contribution higher than that which the Commission is prepared to make. Any other solution would enable the contracting party concerned to escape the application of the rule embodied in Clause 5 (3). The materials acquired under a leasing contract are presumed to have a useful life which is longer than the period for which they are leased. Moreover, leasing costs are higher than ordinary rental costs and may, as in this case, be only slightly less than the purchase price. Accordingly, to order the Commission, as a result of the applicant's unilateral choice of a leasing contract, to reimburse 75% of the expenditure involved, towards which the Commission would have made a much smaller contribution in the event of purchase, would be tantamount to constraining the Commission to give its agreement. The parties are and must continue to be governed by the contract.