EN Official Journal of the European Union C 267/36

Appeal brought on 10 August 2009 by ArchiMEDES against the judgment of the Court of First Instance (Fifth Chamber) delivered on 10 June 2009 in Joined Cases T-396/05 and T-397/05 ArchiMEDES v Commission

(Case C-317/09 P)

2009/C 267/67

Language of the case: French

Parties

Appellant: Architecture, Microclimat, Énergies Douces Europe et Sud, sarl (ArchiMEDES) (represented by: P.-P. Van Gehuchten, avocat)

Other party to the proceedings: Commission of the European Communities

Form of order sought

ArchiMEDES requests the Court of Justice of the European Communities to set aside the judgment delivered on 10 June 2009 by the Court of First Instance of the European Communities in Joined Cases T-396/05 and T-397/05 and grant the appellant's actions by which it sought:

— annulment of the Commission's decision contained in a letter of 5 October 2005, notified to the applicant on 10 October 2005, to impose a set-off of their reciprocal claims, and

— annulment of the recovery decision contained in the letters of 30 August 2005 and debit note No 3240705638 of 23 August 2005, notified to the applicant on 2 September 2005,

— annulment of the Commission's decision to terminate the contract of 30 August 2005,

— an order for the Commission to pay the sum of EUR 125 906, plus statutory default interest since 12 February 2002,

— in the alternative, an order for the Commission to pay the sum of EUR 103 551,90, plus statutory default interest since 12 February 2002,

and an order for the Commission to pay all the costs of the proceedings.

Pleas in law and main arguments

ArchiMEDES raises four grounds in support of its appeal.

By its first ground of appeal, concerning its application for annulment of the decision to set-off their claims contained in the letter of 5 October 2005, the appellant alleges the infringement, by the Court of First Instance, of Article 230 EC, Article 1291 of the French Civil Code and an erroneous or a lack of reasoning of the judgment under appeal. In its view, the set-off decision is an act which may be challenged under Article 230 EC and the decision adopted by the Commission in the present case was taken without complying with the conditions set out in Article 1291 of the French Civil Code governing the contract entered into by ArchiMEDES and the Commission, according to which, if a claim is disputed, that claim only becomes certain from the point in time at which a judgment is delivered ordering the debtor to pay the creditor the sum claimed. Therefore, the Court of First Instance misconstrued those provisions in finding that the appellant was no longer able to seek annulment of the decision of 5 October 2005 since the latter constituted an unlawful unilateral act.

By its second ground of appeal, the appellant alleges an infringement of Article 6 of the European Convention for the Protection of Human Rights, Article 64 of the Rules of Procedure of the Court of First Instance, the general principle of litis denuntiatio, the rights of the defence and the right to a fair hearing in that, without giving any reasons, the Court of First Instance refused to grant the appellant's claim seeking that a comparison be made with the other parties to the contract and that the judgment be the same for all of them. In effect, that refusal means that the multiple parties to a contract with the Commission are no longer placed on a level playing field since the Commission could, where appropriate, bring its action against all its co-contractors whereas that possibility does not exist in the case where the action is brought against only one of the contracting parties.

By its third ground of appeal, which is divided into two parts, the appellant claims that the Court of First Instance infringed Article 1134 and 1165 of the Civil Code, the principle that documents must be construed in accordance with their actual terms, Articles 1.1 and 10 of contract BU/209/95, Articles 2.1, 2.2, 21.1 and 21.4 of Annex II to the contract and the erroneous or lack of reasoning of the judgment under appeal. The appellant submits that the Court of First Instance infringed the above cited provisions, first, by dissociating the rights and duties of the various contractors even though they are jointly and severally responsible for performing contract BU/209/95 and, second, by assessing the applicant as a third party to the contract because of its status as a subcontractor, even though it is definitely a contracting party.

By its fourth ground of appeal, the appellant claims that the Court of First Instance infringed Articles 1134 and 1184 of the Civil Code, the principle that documents must be construed in accordance with their actual terms, and Article 5 of Annex II to contract BU/209/95. Also it claims that there was a lack of reasoning and a contradiction in the judgment under appeal in that the Court of First Instance granted the Commission the right to terminate the contract of 30 August 2005 unilaterally although it stated that the final report was tacitly approved by the Commission more than three years earlier.