Case T-46/03: Action brought on 11 February 2003 by Leali S.p.A. against Commission of the European Communities
Date: 2003-04-05
Institutions: Court of First Instance
Subjects: European Commission, action for failure to act, building industry, fine, restriction on competition

5.4.2003

EN

Official Journal of the European Union

C 83/27

On 30 May 1997 a contract was concluded between one of
the applicants, Lurgi SpA, and the coordinator of the project,
Bioelettrica, relating to the construction of a plant for the
atmospheric gasification of biomass. During the engineering
works, the applicant identified certain technical difficulties.
These difficulties were brought to the attention of the Com-
mission and the other contractors.

On 6 September 2001, the Commission notified Bioelettrica
that it was terminating the contract because of the failure to
commence the works under the THERMIE contract. Bioelettrica
contested this termination of the contract before the Court of
First Instance in Case T-287/01, Bioelettrica/Commission.

the Commission sent a further notice
On 23 July 2002,
indicating that it would terminate the contract due to non-
performance by the contractors unless they performed their
obligations within 30 days. The Commission mainly criticised
the delays of the project. In a letter dated 26 November
2002, the Commission stated that it considered the contract
terminated. This termination of the contract is being contested
in the present case.

In support of their application, the applicants invoke an
infringement of the formal requirements in the decision
making procedure of
the Commission. According to the
applicants, all acts of the Commission have to be taken under
the principle of collegiality as set forth in Article 219 of the
EC Treaty and Article 1 of
the procedural rules of the
Commission (1). The applicants submit that the decision termi-
nating the contract had a substantial
impact for
the contractors and involves a difficult technical and legal
assessment of the contract and its purpose. Therefore, the
applicants claim that the decision to terminate the contract
could not be considered as an execution of an act at an
administrative or management level and that the decision had
to be taken by the College of Commissioners.

financial

Furthermore, the applicants invoke the wrongful application
of the THERMIE contract. The applicants submit in this respect
that there is no justification for a termination of the contract
for non-performance by the contractors. According to the
applicants, this provision is not applicable when there are
reasonable technical or economic grounds for non-perform-
ance. In the present case, there was a need to make modifi-
cations to the original technology causing serious economic
risks.

the applicants submit

that the behaviour of the
Finally,
Commission prevents the Commission from invoking non-
performance as a ground for termination of the contract. In
this respect, the applicants invoke Article 1460 of the Italian
Civil Code and the principle inadimplenti non est adim-
plentum.

Action brought on 11 February 2003 by Leali S.p.A.
against Commission of the European Communities

(Case T-46/03)

(2003/C 83/57)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 11 February 2003 by Leali S.p.A.,
represented by Giovanni Vezzoli and Gianluca Belotti, lawyers.

The applicant claims that the Court should:

— principally, annul the contested decision;

— or, alternatively, reduce the fine imposed,

— order the defendant to pay the costs.

Pleas in law and main arguments

This action is directed against the same decision as that
contested in Case T-27/03 S.P. v Commission. The pleas
in law and main arguments are similar to those in the
abovementioned case.

Removal from the register of Case T-187/94 (1)

(2003/C 83/58)

(Language of the Case: German)

By order of 11 December 2002 the President of the First
Chamber of the Court of First Instance of the European
Communities ordered the removal from the register of Case
T-187/94: Theresia Rudolf v Council of the European Union
and Commission of the European Communities.

( 1) Rules of Procedure of the Commission [C(2000) 3614] (OJ L 308

of 8 December 2000, p. 26).

(1) OJ C 174 of 25.6.1994.