Case T-271/04: Action brought on 5 July 2004 by Citymo S.A. against the Commission of the European Communities
Date: 2004-10-23
Institutions: Court of First Instance
Subjects: EC action to establish liability, European Commission, contract, contractual liability, lease, property leasing

23.10.2004

EN

Official Journal of the European Union

C 262/31

In support of its claims, the applicant submits that:

— there was a breach of Article 4(1) of the abovementioned
Regulation No 2988/74 which does not permit execution
of a decision imposing a fine after a period of five years has
elapsed.
the limitation
in that regard,
period in question was neither interrupted nor suspended;

It considers,

that

it

to pay to the applicant

— declare that the defendant is at fault and contractually liable
sum of
and order
EUR 27 330 577.77,
its loss,
together with interest at the legal rate applicable in Belgium
(currently 7 %) from the date of the application to the date
of actual payment, the amount being subject to adjustment
during the proceedings;

the
the estimated amount of

— there was a manifest error of assessment regarding the func-
tioning of the bank guarantee payable on first demand. The
applicant contends, in that regard, on one hand, that the
provision of such a guarantee does not constitute payment
of the fine and that the mere holding of it does not, of
itself, entail an obligation to make payment and, in addi-
tion, that the putting into effect of the bank guarantee
requires an enforcement measure in accordance with Regu-
lation No 2988/74. In accordance with the wording of the
guarantee in question, that enforcement measure should
consist of an express demand made by the Commission to
Deutsche Bank, together with a certified copy of the judg-
ment of the Court of Justice, sent by recorded delivery
letter.

Furthermore, the applicant submits that there was a breach of
the principle of protection of legitimate expectations and, in
the alternative, a breach of the general principle that measures
should be taken within a reasonable time.

— declare, alternatively, that the Community, represented by
the Commission, is liable and order the Commission to pay
the sum of EUR 20 589 332.22 as compensation for the
loss suffered together with default interest on that sum
from the date of judgment until the date of actual payment,
at the rate of 6 %, the amount being subject to adjustment
during the proceedings;

— order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant affirms that it concluded a contract for a lease
with the Commission of a building in Brussels comprising
16 954 m2. The Commission even agreed that
the lessor
should place an order for the interior fitting-out required to be
done.

(1) Case C-279/98 Tipp-Ex v Commission [1990] ECR I-261.
(2) Regulation (EEC) No 2988/74 of the Council of 26 November 1974
concerning limitation periods in proceedings and the enforcement
of sanctions under the rules of the European Economic Community
relating to transport and competition (OJ L 319, 29.11.1974, p. 1).

the Commission informed the

lessor before
However,
1 November 2003, the date on which the lease became effec-
tive, that it intended neither to take the property on lease nor
to indemnify the applicant for the work already arranged.

In support of its claims, the applicant submits that:

— Although the lease contract had not been formally signed
by the Commission, it bound the parties, since the contract
is concluded under Belgian law by simple consent of the
parties without formalities;

Action brought on 5 July 2004 by Citymo S.A. against the
Commission of the European Communities

— The Commission is liable by reason of its repudiation of the

contract.

(Case T-271/04)

(2004/C 262/60)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 5 July 2004 by Citymo S.A, estab-
lished in Brussels, represented by Pierre Van Ommeslaghe and
Isabelle Heenen, lawyers.

The applicant claims that the Court should:

The applicant seeks the setting aside of the contract due to the
Commission's fault pursuant to Article 1.184 of the Belgian
Civil Code and an order that it compensate the applicant for
the loss it suffers as a result thereof.

issue was concluded,

the applicant considers that

In the alternative, should the Court not accept that the contract
at
the
Commission committed an act of non-contractual negligence
by breaking off the negotiations. It claims in that regard that
the defendant acted in bad faith by disappointing Citymo's
legitimate expectations acquired during the contract negotia-
tions and by leading it to believe that the contract would be
concluded, but then withdrawing from it and failing to act in
good faith by informing the applicant of its changed intentions.