Case T-397/05: Action brought on  3 November 2005  — ARCHI.M.E.D.-E.S v Commission
Date: 2006-03-25
Institutions: Court of First Instance
Subjects: EU financing, European Commission, appeal, contract, improvement of housing, payment, redemption, solar architecture, termination of a contract

C 74/20

EN

Official Journal of the European Union

25.3.2006

Operative part of the Order

1. The action is dismissed as inadmissible;

2. The Republic of Finland is ordered to pay the costs.

(1) OJ C 153 of 25.6.2005.

Action brought on 2 November 2005 — ARCHI.M.E.D.-
E.S v Commission

(Case T-396/05)

(2006/C 74/40)

Language of the case: French

Parties

Applicant: Architecture, Microclimat, Energies Douces —
Europe et Sud SARL (ARCHI.M.E.D.-E.S)
(Ganges, France)
(represented by: P.-P. van Gehuchten, J. Sambon, P. Reyniers,
lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul the Commission's set-off decision contained in the
letter of 5 October 2005, notified to the applicant on 10
October 2005;

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

— order the Commission to pay all the costs.

Pleas in law and main arguments

The applicant is party to Contract BU 209-95 concluded with
the Commission in consequence of the invitation to tender
made in connection with the specific programme for research
and technological development
in the field of non-nuclear
energy (1) and covering the execution of a project of renovation
of a building in Lyon by using solar and bio-climatic architec-
ture methods. In execution of its contractual obligations, the
applicant, on 12 December 2001, sent the Commission the
final report on the project. The Commission did not accept
that report and, on 5 July 2002, sent the applicant a decision
to recover certain payments made by refusing to accept certain
costs declared by it in that report. Neither exchanges of cor-
respondence between the parties, nor the meetings held nor the
intervention of a mediator could bring about an amicable
settlement of the dispute.

another

By registered letter of 30 August 2005, the Commission sent
the applicant a final recovery decision preceded by a debit note
of 23 August 2005. By
registered letter of
5 October 2005, the Commission also communicated to the
applicant a decision imposing a set-off of
their reciprocal
claims: certain claims of the Commission against the applicant
in connection with the contract in question, on the one hand
and, on the other hand, certain claims of the applicant against
the Commission to which it is entitled in connection with
another contract. Those are the decisions challenged.

The applicant challenges the decisions relying on two main
pleas in law.

it claims that, by the contested decisions,

the
First of all,
Commission is in breach of
the ordinary rules of set-off
between reciprocal claims. The applicant maintains that such
set-off is not available when the claims are governed by two
different legal systems. According to the applicant, its claims
against the Commission are based on Community law, while
the Commission's claims against the applicant are governed by
French law. In addition, the applicant claims that the Commis-
sion has no legal basis enabling it to impose the set-off on the
applicant, while the claims concerned are as yet uncertain,
which is substantiated by numerous challenges on the part of
the applicant itself and the process before the mediator which
has not yet been completed.

the applicant submits that

the
By its second plea in law,
recovery decision should be annulled for
failure to state
reasons. It avers that the Commission has never furnished satis-
factory explanations, in particular with regard to the arguments
raised by the applicant over the manner in which it established
the amount of its claim.

(1) Programme put in place by Council Decision 94/806/EC of 23

November 1994 (OJ L 334 of 22 December 1994, p. 87).

Action brought on 3 November 2005 — ARCHI.M.E.D.-
E.S v Commission

(Case T-397/05)

(2006/C 74/41)

Language of the case: French

Parties

Applicant: Architecture, Microclimat, Energies Douces —
Europe et Sud SARL (ARCHI.M.E.D.-E.S)
(Ganges, France)
(represented by: P.-P. van Gehuchten, J. Sambon, P. Reyniers,
lawyers)

Defendant: Commission of the European Communities

25.3.2006

EN

Official Journal of the European Union

C 74/21

Form of order sought

The applicant claims that the Court should:

Action brought on 25 November 2005 — Olympic
Airways Services S.A. v Commission of the European
Communities

— declare that

the Commission could not

terminate the

contract of 30 August 2005;

— order

the European Commission to pay the sum of
interest since 12

EUR 125 906, plus statutory default
February 2002;

(Case T-423/05)

(2006/C 74/42)

Language of the case: Greek

— order the Commission to pay all the costs of the proceed-

ings.

Parties

Pleas in law and main arguments

The applicant is party to Contract BU 209-95 concluded with
the Commission in consequence of the invitation to tender in
connection with the specific programme for research and tech-
nological development in the field of non-nuclear energy (1)
and covering the execution of a project of renovation of a
building in Lyon by using solar and bio-climatic architecture
methods. The contract contains an arbitration clause under
which the Community judicature has exclusive jurisdiction over
disputes between the contracting parties as regards the validity,
application and interpretation of the contract.

In execution of its contractual obligations, the applicant, on 12
December 2001, sent the Commission the final report on the
project. The Commission did not accept that report and on 5
July 2002 served on the applicant a decision to recover
payments made by refusing to accept certain costs declared by
it in that report. Neither exchanges of correspondence between
the parties, nor the meetings held, nor the intervention of a
mediator could bring about an amicable settlement of
the
dispute. By registered letter of 30 August 2005, the Commis-
sion served the applicant with a final
recovery decision
preceded by a debit note of 23 August 2005. That decision is
the subject of this action brought by the applicant on the basis
of the arbitration clause.

The action seeks, principally, an order that the Commission
pay 20 % of the balance of the subsidy allegedly due to the
applicant under Contract BU 209-95.

In support of its claims, the applicant argues that any disagree-
ment with the way the project was executed by the contracting
parties should have been expressed by the Commission before
the date on which the report was presumed to have been
approved (two months from the date of deposit of the final
report). In the applicant's view, the Commission is time-barred
and cannot therefore constitute itself a creditor of the applicant.
Consequently, being time-barred,
the Commission remains
indebted to the applicant for the balance of the subsidy which
it undertook to pay under the contract in question.

(1) Programme put in place by Council Decision 94/806/EC of 23

November 1994 (OJ L 334 of 22 December 1994, p. 87).

Applicant: Olympic Airways Services S.A.
(Athens, Greece)
(represented by: P. Anestis, T. Soames, D. Geradin, S. Mavro-
ghenis and S. Jordan, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul in whole or in part, in accordance with Articles 230
and 231 EC, Decision C11/2004, concerning State aid
alleged to have been granted by Greece to Olympic
Airways Services S.A.;

— order the Commission to pay the costs.

Pleas in law and main arguments

When the Greek state airline Olympic Airways was privatised,
a new company (‘NOA’) began operating, taking over the flight
operations, while the applicant (‘OA’) retained all other activ-
ities, principally ground handling, maintenance and aircraft
repair. In the contested decision, the Commission found that
Greece had granted to NOA and the applicant State aid that
was incompatible with the Treaty, inter alia by reason of:

— overvaluation of NOA's assets at the time when it was set

up,

— the making by the Greek State, as guarantor, of payments

in respect of debts of OA,

— the continuous forbearance displayed by the Greek State
towards OA with regard to tax debts and social security
contributions.

By its action, the applicant contests first of all the part of the
decision that relates to the supposed overvaluation of NOA's
assets when it was set up. The applicant pleads infringement of
Article 87(1) and (3) EC and Article 253 EC (duty to state
reasons). It submits that the ‘private investor’ test was misap-
plied since the Hellenic Republic acted as any well-advised
private businessman would act. It further contends that metho-
dology and conclusions were mistaken in relation to the calcu-
lation of the amount of the supposed benefit. It also argues
that the reasoning with regard to fulfilment of the conditions
required in order for Article 87(1) EC to apply was deficient.