Case T-184/06: Action brought on 14 July 2006 — Commission v Internet Commerce Network and Dane-Elec Memory
Date: 2006-09-02
Institutions: Court of First Instance
Subjects: European Commission, advance payment, appeal to the Court (EU), arbitration clause, contract terms, information technology, project management

C 212/36

EN

Official Journal of the European Union

2.9.2006

Action brought on 11 July 2006 — Portuguese Republic v
Commission

Action brought on 14 July 2006 — Commission v Internet
Commerce Network and Dane-Elec Memory

(Case T-183/06)

(2006/C 212/64)

Language of the case: Portuguese

(Case T-184/06)

(2006/C 212/65)

Language of the case: French

Parties

Applicant: Portuguese Republic (Lisbon, Portugal) (represented
by: L.Fernandes, Agent, C.Botelho Moniz, advogado, and E.Maia
Cadete, advogado)

Defendant: Commission

Form of order sought

— Annul the Decision of 28 April 2006 of the Commission of
the European Communities entitled ‘Commission Decision
28/IV/2006 excluding from Community financing certain
expenditure incurred by the Member States under the Guar-
antee Section of the European Agricultural Guidance and
Guarantee Fund (EAGGF)’ in so far as it applies in the case
of Portugal a financial correction of 100 % in the flax
sector, amounting to EUR 3 135 348,71;

— Order the Commission of the European Communities to

pay the costs.

Pleas in law and main arguments

The subject-matter of the action is the decision of the Commis-
sion of the European Communities of 28 April 2006 entitled
‘Commission Decision 28/IV/2006 excluding from Community
financing certain expenditure incurred by the Member States
under the Guarantee Section of the European Guidance and
Guarantee Fund (EAGGF)’ in so far as it applies in the case of
Portugal a financial correction of 100 % in the flax sector,
amounting to EUR 3 135 348,71, in the context of the scheme
introduced by Commission Regulation (EEC) No 1164/89 of
28 April 1989 laying down detailed rules concerning the aid
for fibre flax and hemp (1).

(1) OJ L 121, 29.4.1989, p.4

Parties

Applicant: Commission of the European Communities (Brussels,
Belgium)
(represented by: L. Ström, Agent, assisted by P.
Elvinger, lawyer)

Defendants:
Memory

Internet Commerce Network

and Dane-Elec

Form of order sought by the applicant

The applicant claims that the court should:

— summon the parties and mediate between them; if not

— accept that this application is in due form and declare it

admissible; and

— primarily, order the company Dane-Elec Memory to pay the
Commission the sum of EUR 55 878 with interest for late
payment,
in pursuance of the ‘upon first demand’ guar-
antee;

— in the alternative, order the company ICN to repay the
advance of EUR 55 878 made by the Commission with
interest for late payment, on the ground of non-fulfilment
its contractual undertakings in connection with the
of
Crossemarc project;

— order the unsuccessful party, under Article 69 (2) of the
Rules of Procedure, to pay the costs and expenses of the
proceedings;

— order the interim execution of the judgement to be given,

notwithstanding appeal and without security;

— reserve to the applicant all other rights, pleas in law and
actions, and, in particular, the right to add to its claim for
payment.

Pleas in law and main arguments

The European Community,
represented by the European
Commission, concluded on 28 February 2001 with, among
the company Internet Commerce Network (ICN),
others,
Contract
IST-2000-25366 covering the carrying-out of a
project ‘Cross-lingual Multi Agent Retail Comparison — Crosse-
marc’ in the framework of a programme for research, technolo-
gical development and demonstration technologies of Informa-
tion Society Technologies (IST) 1998-2002 (1). By letter of
guarantee signed on 1 September 2000 Dane-Elec Memory,
ICN's parent company, guaranteed ICN's contractual commit-
ments to the Commission under Contract IST-2005-25366.

2.9.2006

EN

Official Journal of the European Union

C 212/37

An advance of payment was made by the Commission to the
parties associated in the project, including ICN, through a coor-
dinator, NCSR ‘Demokritos’. Subsequently,
the coordinator
requested ICN's contribution in accordance with the tasks
defined in the project. Since that contribution was not made
and ICN's representative informed the coordinator of financial
difficulties encountered by ICN, the coordinator contacted the
company Dane-Elec Memory, the guarantor of ICN's obliga-
tions. The director of Dane-Elec Memory informed the coordi-
nator that ICN was going to withdraw from the project and
repay the advances. Having received no confirmation in writing
of that withdrawal or the commitment to repay, the coordi-
nator of the project and the Commission sent ICN a demand
for repayment of
the advances made. Since that demand
received no reply, a request to honour the financial guarantee
in accordance with its commitments in the letter of guarantee
was sent to Dane-Elec Memory. It refused to honour that guar-
the contractual default was not
antee on the ground that
proven by the Commission. That refusal was repeated in spite
of the fact that the Commission gave reasons for its demand.

On the basis of the arbitration clauses contained in Contract
IST-2000-25366 between ICN and the Commission and in the
letter of guarantee issued by Dane-Elec Memory in favour of
the Commission, the Commission brought this action seeking
an order that Dane-Elec Memory pay the Commission the
amount of the advances paid to ICN plus interest for late
payment, in pursuance of the ‘upon first demand’ guarantee. In
the alternative, the applicant seeks an order that ICN repay the
advance made by the Commission plus
late
payment, for non-fulfilment of its contractual obligations in
connection with the ‘Crossmarc project’.

interest

for

(1) Call for expression of interest published in OJ 1999 C 12, p. 5.

Action brought on 17 July 2006 — L'Air Liquide v
Commission

(Case T-185/06)

(2006/C 212/66)

Language of the case: French

Parties

Applicant: L'Air Liquide SA (Paris, France) (represented by: R.
Saint Esteben and M. Pittie, lawyers)

Defendant: Commission of the European Communities

Form of order sought by the applicant

The applicant claims that the Court should:

— declare the action admissible;

— annul Article 1(i) of Commission Decision C (2006) 1766
final of 3 May 2006 relating to a proceeding pursuant to
Article 81 EC and Article 53 of the EEA Agreement (Case
COMP/F/38.620 — Hydrogen peroxide and perborate) in
so far as it decided that L'Air Liquide infringed Article 81
EC and Article 53 EEA between 12 May 1995 and 31
December 1997;

— consequently, annul Articles 2(f) and 4 of Commission
Decision C (2006) 1766 final of 3 May 2006, as regards
L'Air Liquide;

— order the Commission to pay all the costs incurred by the

applicant in connection with this action.

Pleas in law and main arguments

By this action, the applicant seeks the partial annulment of
Commission Decision C (2006) 1766 final of 3 May 2006 in
Case COMP/F/38.620 — Hydrogen peroxide and perborate, by
which the Commission found that the undertakings to which
the decision was addressed, including the applicant, infringed
Article 81(1) EC and Article 53 of the EEA Agreement by parti-
cipating in a number of agreements and concerted practices
consisting in exchanges of information between competitors
and agreements on prices and production capacities as well as
monitoring the implementation of those agreements in the
hydrogen peroxide and sodium perborate sector.

In support of its claims, the applicant relies on four pleas in
law.

By its first plea in law, the applicant claims that the Commis-
sion made a manifest error of assessment in deciding that the
matters which it put forward in order to presume L'Air Liquide
its
jointly and severally liable because of
subsidiary were sufficient having regard to the criteria estab-
lished by the case-law and that
the Commission therefore
misapplied the rules governing the attribution to a parent
company of the conduct of its subsidiary and thus infringed
Article 81 EC.

the conduct of

By its second plea in law, the applicant claims that by wrongly
invoking the presumption of attribution with regard to L'Air
Liquide, the Commission also improperly reversed the burden
of proof and thus infringed the applicant's right
to a fair
hearing.

By its third plea in law, the applicant argues that, even if the
Court of First Instance considers that the Commission was justi-
fied in presuming the attribution to L'Air Liquide of
the
conduct of its subsidiary Chemoxal, the Commission failed to
fulfil its obligation to state its reasons in that it did not discuss
any of the evidence put forward by L'Air Liquide to demon-
strate Chemoxal's
reversed that
presumption of joint and several liability, which is only a rebut-
table presumption.

independence

and thus