2

The background to the dispute was set out in paragraphs 1 to 31 of the judgment under appeal as follows: ‘1 On 6 July 1990, the European Economic Community, represented by the Commission of the European Communities, concluded a grant contract with [SEMEA], which was 50% owned by the Commune de Millau (Municipality of Millau) (France). 2 That contract concerned a local development action consisting in the performance of work for the preparation and launching of a Centre européen d’entreprise locale (European Local Enterprise Centre) in Millau (“the contract”). 3 Article 2 of the contract stipulated: “The work is to be carried out during a period of 18 months from the date of signature of this contract.” 4 Under Article 4 of the contract, SEMEA undertook to perform various services and to account for them to the Commission by submitting periodical reports, the Commission for its part undertaking to contribute financially to the performance of those works up to a maximum of ECU 135000, not exceeding 50% of the justified costs of the works. 5 Article 6 of the contract provided: “This contract is subject to French law.” 6 Article 10 of the contract was worded as follows: “In the event that credit facilities are unavailable or are insufficient for the performance of this contract, the Commission reserves the right to cancel this contract without any legal procedure or to adapt the contract to the new credit availability.” 7 Article 9(1) of the General Terms of the contract stipulated: “In the event of non-fulfilment by the contractor of one of the obligations arising under the contract and irrespective of the consequences provided by the law applicable to the contract, the contract may be automatically rescinded or cancelled by the Commission without the need to carry out any legal procedure, after the contractor has been sent a letter of formal notice, by registered post, and has failed to fulfil the obligation within a period of one month.” 8 Article 10 of the General Terms of the contract provided: “In the absence of an amicable settlement, the Court of Justice of the European Communities has exclusive jurisdiction to rule on any dispute concerning the contract and arising between the contracting parties.” 9 By letter of 16 May 1991, SEMEA requested of the Commission that the contract be performed by another structure, the Centre européen d’entreprise et d’innovation (European Centre for Enterprise and Innovation) (“CEI 12”), which the Commission accepted by letter of 2 July 1991, specifying that that agreement did not exempt SEMEA from its obligations. By letter of 22 October 1991, SEMEA confirmed that it would guarantee the proper performance of the services stipulated in the contract. 10 During the months of June and July 1992, the Commission’s services carried out a check on the state of progress of the works, following which it was found that the total eligible expenditure was ECU 187977 and thus that the Commission’s contribution was to be set at 50% of that amount, that is, at ECU 93988. 11 Since SEMEA had already received ECU 135000 in respect of the contract, the Commission claimed recovery from it of ECU 41012 (“the disputed debt”) by letter of 27 April 1993. SEMEA did not respond to that request. 12 On 17 February 1997, the Extraordinary General Meeting of Shareholders of SEMEA decided to put SEMEA into voluntary liquidation from 31 March 1997 and to appoint a liquidator. 13 By registered letter with acknowledgment of receipt of 18 November 2005, the Commission again asked SEMEA for payment of the disputed debt. 14 On 11 January 2006, the Commission sent a debit note for EUR 41 012 to SEMEA. 15 Replying by letter of 31 January 2006, SEMEA’s liquidator stated that his accounts did not allow for payment of such a sum, that he was required to file the winding-up balance and that the disputed debt had to be regarded as time-barred under French law, which did not allow recovery of sums which had not been claimed within the last 4 years, and the Commission’s last claim dated from 27 April 1993, over 12 years previously. 16 By registered letter with acknowledgment of receipt of 16 February 2006, the Commission formally applied for the disputed debt to be taken into account in the liquidation operations and to be accepted as a liability. 17 By letter of 20 September 2006, SEMEA informed the Commission that the Extraordinary General Meeting of the company had decided to postpone submitting the winding-up balance and referred to a CEI 12 report indicating that the Commission had finally abandoned its claim for payment of the disputed debt. 18 By letter of 29 November 2006, the Commission sent, through its lawyer, a letter of formal notice to SEMEA to reimburse the disputed debt. In that letter, the Commission stated that it had never intended to waive that debt. 19 By letter of 30 January 2007, the Commission’s lawyer sent a further letter of formal notice to pay the disputed debt and inferred from SEMEA’s failure to act that it was in a state of insolvency. 20 By letter of 5 February 2007, SEMEA stated that it was not in a state of insolvency. 21 By letter of 12 February 2007, SEMEA sent the copy of the CEI 12 memorandum stating that the Commission had abandoned its claim for payment of the disputed debt. 22 On 26 October 2007, the Commission sent, by process-server, a formal demand for payment to the address for service of SEMEA’s liquidator. 23 On 10 December 2007, the Commission sent a formal demand for payment to the registered office of SEMEA’s liquidator, by process-server. 24 By letter of 14 December 2007, addressed to the process-server who had delivered the formal demand for payment, SEMEA’s liquidator repeated his request for information concerning the Commission’s decision to waive payment of the disputed debt. In his letter, he claimed that the new shareholders and the liquidator were unaware of the undertakings between SEMEA and CEI 12. 25 By letter of 7 January 2008, the Commission’s lawyer contested the claims made by SEMEA’s liquidator, again called on him to settle the disputed debt and sent a copy of that letter to the procureur de la République (Public Prosecutor) in order that the conduct of SEMEA’s liquidator might be assessed, having regard inter alia to the offence of fraud. 26 In response to that letter of formal notice, SEMEA’s liquidator suggested that the disputed debt might be time-barred. In that letter, he pointed out that, at the beginning of 2007, he had undertaken, during a discussion with the Commission’s lawyer, to pay the disputed debt as soon as he had received answers to the questions concerning its admissibility. 27 By letter of 21 February 2008, the Commission’s lawyer sent a final letter of formal notice to SEMEA to pay the disputed debt. 28 On 21 November 2008, the Extraordinary General Meeting of SEMEA took formal note of the decision of the Commune de Millau, its main shareholder, to take over its assets and liabilities and decided to pay the sum of EUR 82 719.76, representing SEMEA’s available liquidity, to the Commune de Millau. According to the liquidation report submitted by the liquidator, who referred to the disputed debt, all the mandated operations were regarded as settled. 29 On 9 December 2008, SEMEA’s liquidator concluded the liquidation process and had SEMEA removed from the Commercial and Companies Register. 30 On 18 December 2008, the municipal council of the Commune de Millau took over SEMEA’s assets and liabilities. The dispute with the European Commission was expressly stated as a liability. 31 On 12 February 2010, at the Commission’s request, the Rodez Commercial Court appointed an ad hoc agent to represent SEMEA.’