Case T-336/06: Action brought on 27 November 2006 — 2K-Teint and Others v EIB and Commission
Date: 2007-01-27
Institutions: Court of First Instance
Subjects: EC action to establish liability, European Commission, European Investment Bank, financial institution, loan, short-term credit

27.1.2007

EN

Official Journal of the European Union

C 20/15

COURT OF FIRST INSTANCE

Action brought on 27 November 2006 — 2K-Teint and
Others v EIB and Commission

(Case T-336/06)

(2007/C 20/22)

Language of the case: French

— order the EIB and/or the European Community jointly and
severally to pay, as an amount additional to the costs, the
provisional sum of EUR 12 500 which the applicants have
had to pay to ensure their defence and representation at the
hearing and which it is inequitable that they should bear;

— order the EIB and/or the European Community to pay all

the expenses and costs of the action;

— reserve to the applicants all rights and claims.

Parties

SARL, Mohamed Kermoudi, Khalid
Applicants: 2K-Teint
Kermoudi, Laila Kermoudi, Mounia Kermoudi, Salma Kermoudi
and Rabia Kermoudi (Casablanca, Morocco) (represented by: P.
Thomas, lawyer)

Defendants: European Investment Bank (Luxembourg, Grand
Duchy of Luxembourg) and Commission of
the European
Communities (Brussels, Belgium)

Form of order sought

— admit the application and declare the applicants' action well

founded;

— order the EIB to release its entire file concerning the equity
loan to the capital of 2K-Teint,
including all documents
exchanged in that regard with the BNDE, failing which to
pay a late-payment fine of EUR 10 000 per day;

— rule that the EIB is liable to the applicants in quasi-delict by
reason of the errors, failures, negligence and omissions of
the EIB with regard to the applicants;

— rule that the applicants suffered a loss quantified [as set out

in the application];

— order an expert to report on the extent and validity of the

losses described;

— order the EIB and/or the European Community jointly and
severally to pay the applicants amounts in respect of the
causes of action set out above, converted to Euros [on the
basis of the following indications] with statutory interest as
from the first court summons issued to the applicants, that
is to say the summons to appear before the Tribunal d'ar-
rondissement, Luxembourg (District Court), dated 17 June
2003 and until payment in full;

— rule that the judgment to be delivered will be provisionally
enforceable notwithstanding any remedies and without a
guarantee;

Pleas in law and main arguments

(Global Loan Financial Sector

By a financing contract signed in Luxembourg on 28 April
1994, the EIB, acting in the name and on behalf of the Euro-
pean Community on the basis of a mandate granted by the
European Commission, granted the Kingdom of Morocco, as
assistance with risk capital, a conditional
loan intended to
finance productive projects in the industrial sector, in particular
in association with European Union undertakings (natural and
legal persons)
II Project).
According to the terms of the contract, the product of the EIB's
loan to Morocco was to be on-loaned with a view to financing
projects pursuant to agreements in the form of
loans from
banks in Morocco, subsequently acting as financial intermedi-
aries. Those loans used for on-lending were intended to ensure
the financing by the financial intermediaries of loans or invest-
ments in the capital of Moroccan operators, the final benefici-
aries. The grant of each loan to the operators was to be the
subject of a contract concluded between the bank and the
operator concerned by the investment in question. The inter-
mediary was obliged to submit every application with a view to
financing investment or a loan to the EIB for approval together
with the Moroccan State. The EIB was required to notify the
Moroccan State of its agreement with a copy thereof sent simul-
taneously to the financial intermediary.

le Développement Economique

On 12 October 1994, an on-lending agreement was signed
between the Kingdom of Morocco and the Banque Nationale
pour
(BNDE) which then
became one of the financial intermediaries within the meaning
of the contract concluded between the EIB and the Kingdom of
Morocco. On 29 November 1995, a loan agreement in the
context of the IInd EIB Line was concluded between the BNDE
and the applicants, subject to the EIB's agreement and receipt of
the funds by the BNDE. The contract concerned the partial
financing of investment in the company 2K-Teint. By letter of
14 October 1994, the EIB gave its agreement to the 2K-Teint
project's receiving that financing.

C 20/16

EN

Official Journal of the European Union

27.1.2007

By the present action in respect of non-contractual liability on
the part of the Community, the applicants seek compensation
for the loss which they claim to have suffered by reason of the
allegedly wrongful conduct of the EIB in the exercise of its
responsibilities as agent of the Community in the context of the
management of the loan in question. Inter alia, they allege that
the clearing of the loan was extremely slow and it was released
only in July 1997, which led them to arrange a short-term loan
with the BNDE. The applicants' failure to perform their financial
obligations led the BNDE to initiate recovery proceedings before
the national courts. By a judgment of a Moroccan national
court, the company 2K-Teint was ordered to sell its business.

the

allege

applicants

a number of

irregularities
Firstly,
committed by the BNDE in the management of the Community
funds, of which they informed the EIB, seeking its response. The
applicants claim that the EIB did not react to the information
sent to it. They argue that the EIB was required to act since the
BNDE acted if not on instruction as its agent, at least as its
apparent agent, the EIB retaining an important role in the deci-
sions on the loans in question.

Furthermore, the applicants claim that the EIB should accept
liability not only for the errors of the BNDE arising in connec-
tion with the legal relationship between them, but also the
consequences of its own deficiencies and failures. They allege
that the EIB did not efficiently monitor or check the use of the
funds from the time of their receipt by the Moroccan bodies,
which consequently meant that the allegedly fraudulent conduct
of the BNDE was encouraged or even supported. They submit
that the EIB was guilty of failures, negligence and omissions, to
a serious extent, in its duties of prudence, diligence and care in
the management of Community funds.

The applicants submit that the losses which they claim to have
suffered are directly related to the omissions and failures of the
EIB. They therefore seek an order that it compensate them for
those losses.

Kingdom), Shell Nederland Verkoopmaatschappij BV (Capelle
aan den IJssel, The Netherlands) (represented by: O.W. Brouwer,
W. Knibbeler, S. Verschuur, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Shell Petroleum NV and The Shell Transport and Trading
Company Ltd request the Court:

— To annul, in full, Commission's Decision of 13 September
2006 relating to a proceeding under Article 81 EC (Case
COMP/F/38.456 — Bitumen — NL, hereinafter,
'the deci-
sion') insofar as it is addressed to Shell Petroleum NV and
The Shell Transport and Trading Company Ltd; or in the
alternative

— to annul, in part, the decision, insofar as it finds that Shell
Petroleum NV and The Shell Transport
and Trading
Company Ltd infringed Article 81 EC between 1 April 1994
and 19 February 1996 and to reduce the fine imposed upon
them; and

— in any event, to reduce the fine imposed on Shell Petroleum
NV and The Shell Transport and Trading Company Ltd
pursuant to the decision;

— to order the defendant to pay the costs of the proceedings,
including costs incurred by Shell Petroleum NV and The
Shell Transport and Trading Company Ltd associated with
payment in whole or in part of the fine or constituting a
bank guarantee;

— take any other measures that the Court considers to be

appropriate.

Action brought on 1 December 2006 — Shell Petroleum
and Others v Commission

Shell Nederland Verkoopmaatschappij BV requests the Court:

(Case T-343/06)

(2007/C 20/23)

— to annul, in part, the decision insofar as it finds that Shell
Nederland Verkoopmaatschappij BV infringed Article 81 EC
between 1 April 1994 and 19 February 1996 and to reduce
the fine imposed upon it; and

Language of the case: English

— in any event, to reduce the fine imposed on Shell Nederland

Verkoopmaatschappij BV pursuant to the decision;

Parties

— to order the defendant to pay the costs of the proceedings,
including costs incurred by Shell Verkoopmaatschappij BV
associated with payment in whole or in part of the fine or
constituting a bank guarantee;

Applicants: Shell Petroleum NV (The Hague, The Netherlands),
The Shell Transport and Trading Company Ltd (London, United

— take any other measures that the Court considers to be

appropriate.