CELEX: 62009TO0335
Language: en
Date: 2011-10-21 00:00:00
Title: Order of the General Court (Fourth Chamber) of 21 October 2011. # Groupement Adriano, Jaime Ribeiro, Conduril - Construção, ACE v European Commission. # Community trade mark - Opposition proceedings - Application for figurative Community mark Walzer Traum - Earlier national word mark Walzertraum - Lack of genuine use of the earlier mark - Article 42(2) and (3) of Regulation (EC) No 207/2009 - Equal treatment. # Case T-335/09.

Case T-335/09
      Groupement Adriano, Jaime Ribeiro, Conduril – Construção, ACE
      v
      European Commission
      (Action for annulment – MEDA I programme – Specific financing agreement – Authority given to the European Union to recover debts owed by a third party to the Kingdom of Morocco – Debit note – Reminder letter – Measures inseparable from the contract – Measure not subject to review – Inadmissibility)
      Summary of the Order
      Actions for annulment – Action relating in reality to a contractual dispute – Exercise of contractual rights by an institution
            in the name of and on behalf of one of the contractual parties – Lack of jurisdiction of the Community judicature – Inadmissibility
      (Arts 230 EC and 249 EC)
      Under Article 230 EC, the Community Courts review the legality of acts of the institutions intended to produce legal effects
         vis-à-vis third parties by bringing about a distinct change in their legal position. That jurisdiction concerns only the acts
         referred to by Article 249 EC, which the institutions must adopt under the conditions laid down by the Treaty.
      
      By contrast, measures adopted by the institutions in a purely contractual context from which they are inseparable are, by
         their very nature, not among the measures covered by Article 249 EC, annulment of which may be sought before the Community
         judicature pursuant to Article 230 EC.
      
      However, the measure adopted by an institution in a contractual context must be considered as being severable from the latter
         where, first, the measure was adopted by that institution in the exercise of its own powers, and, second, it produces, by
         itself, obligatory legal effects capable of affecting the interests of its recipient against which, therefore, an action for
         annulment may be brought. Accordingly, an action for annulment brought by the addressee of the measure must be considered
         to be admissible. In that context, the ‘own powers of an institution’ must be understood as those deriving from the Treaties
         or secondary law which are part of its public power prerogatives and accordingly allow it to create or amend, unilaterally,
         rights and obligations for a third party. On the other hand, the exercise of contractual rights by an institution, if the
         Union has received authority to act in the name of and on behalf of one of the contractual parties, does not constitute exercise
         of its own powers.
      
      (see paras 24-26, 32-33)
ORDER OF THE GENERAL COURT (Fourth Chamber)
      21 October 2011(*)
      
      (Action for annulment – MEDA I programme – Specific financing agreement – Authority given to the European Union to recover debts owed by a third party to the Kingdom of Morocco – Debit note – Reminder letter – Measures inseparable from the contract – Measure not subject to review – Inadmissibility)
      In Case T‑335/09,
      Groupement Adriano, Jaime Ribeiro, Conduril – Construção, ACE, established in Porto (Portugal), represented by A. Pinto Cardoso and L. Fuzeta da Ponte, lawyers,
      
      applicant,
      v
      European Commission, represented by A.-M. Rouchaud-Joët and S. Delaude, acting as Agents, and by R. Faria da Cunha, lawyer,
      
      defendant,
      APPLICATION for annulment of, first, debit note No 3230905272 issued by the Commission on 12 June 2009 and, second, the letter
         dated 3 August 2009 by which the Commission ordered payment of the sum claimed by means of the debit note and related default
         interest,
      
      THE GENERAL COURT (Fourth Chamber),
      composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and M. van der Woude, Judges,
      Registrar: E. Coulon,
      makes the following
      Order
       Background to the dispute
      1        On 22 September 2000, the European Community, represented by the Commission of the European Communities, and the Kingdom of
         Morocco concluded a specific financing agreement in the context of the MEDA I programme. That programme is founded on Council
         Regulation (EC) No 1488/96 of 23 July 1996 on financial and technical measures to accompany (MEDA) the reform of economic
         and social structures in the framework of the Euro-Mediterranean partnership (OJ 1996 L 189, p. 1). The specific financing
         agreement is for part of the Rocade méditerranéenne (Mediterranean ring road) – road infrastructure – connecting El Jebha
         and Ajdir in Morocco. It provides for the methods for implementing and financing the construction project of this part of
         the road.
      
      2        On 21 May 2004, the Kingdom of Morocco and the applicant, Groupement Adriano, Jaime Ribeiro, Conduril – Construção, ACE, concluded
         contract AH 04/2004 (‘the Contract’), in the context of the project relating to the section of the Rocade méditerranéenne
         financed by the Community. The contract concerns in particular the construction of the part of the road between Beni Boufra
         (Morocco) and Ajdir.
      
      3        Under Article 2(1) of the specific conditions of the Contract, the law applicable to the Contract is Moroccan law.
      
      4        By letter dated 31 July 2006, the Kingdom of Morocco noted significant delays in the execution of the work which was to be
         completed under the Contract, and gave the applicant notice to rectify that situation.
      
      5        By letter dated 16 November 2006, the Kingdom of Morocco notified the applicant that an extension to the period for executing
         the work was granted to it.
      
      6        By letter dated 12 August 2008, the Kingdom of Morocco informed the applicant that the Contract had been terminated as from
         1 August 2008, under Article 61 of Section 2 of the Contract entitled ‘General Conditions’ (‘the General Conditions of the
         Contract’) and under Article 61 of Section 3 of the Contract entitled ‘Special Conditions’ (‘the Special Conditions of the
         Contract’).
      
      7        On 28 October 2008, the Kingdom of Morocco drew up the provisional statement No 41 of the work undertaken and of the costs
         (‘Provisional Statement No 41’), from which, inter alia, it is apparent that penalties for delay amounting to EUR 3 745 444.76
         are chargeable to the applicant under Article 34 of the Special Conditions of the Contract. That document states that the
         total amount of the sums to be paid by the applicant to the Kingdom of Morocco amount to EUR 3 948 424.99.
      
      8        By letter dated 22 January 2009, the Commission, declaring to act on behalf of the Kingdom of Morocco, informed the applicant
         of its intention to recover the sum of EUR 3 948 424.99 on the basis of Provisional Statement No 41 and under Article 34 of
         the Special Conditions of the Contract and Article 43.5 of the General Provisions of the Contract. In that letter the Commission
         indicated to the applicant that it had a period of 30 days to submit observations, otherwise a debit note would be sent to
         it in which the payment of that amount would be claimed against it.
      
      9        By letter dated 23 March 2009, the applicant indicated to the Commission that it disputed Provisional Statement No 41 and
         that it wished to proceed with an amicable settlement of the differences between the parties to the contract.
      
      10      By service order of 23 April 2009, the Kingdom of Morocco informed the applicant that recovery of an amount of EUR 3 825 324.11
         would be made in the statement of the work undertaken and of expenses which were established following Provisional Statement
         No 40.
      
      11      By letter dated 12 June 2009, the Commission sent debit note No 3230905272 (‘the debit note’) to the applicant in which an
         amount of EUR 3 949 869.02 is demanded from the applicant, corresponding to the application of penalties for delay, of EUR 3 745 444.76,
         and recovery of the ‘amount of the advance which had not been recovered until Provisional Statement No 40 inclusive’, of EUR 204 424.26.
      
      12      On 22 June 2009, by letter addressed to the Commission, the applicant requested annulment of the debit note.
      
      13      By letter dated 1 July 2009, the Commission informed the applicant that it could not give a positive response to its letter
         of 22 June 2009. In addition, in that letter the Commission stated that the amount mentioned in the service order of 23 April
         2009, namely EUR 3 825 324.11, corresponded to the ‘amount of the advance which had not been recovered until Provisional Statement
         No 40 inclusive’, that is EUR 3 745 444.76, with a deduction of an amount of EUR 124 544.91 approved by Provisional Statement
         No 40.
      
      14      On 3 August 2009, the Commission sent a reminder letter to the applicant (‘the reminder letter’) stating that the payment
         relating to the debit note had not been made and requesting it to make that payment, plus default interest, within a period
         of 15 days from receipt of the letter.
      
      15      By letter dated 26 March 2010 sent to the Commission delegation to Morocco, the Kingdom of Morocco confirmed having given
         authority to act in its name and on its behalf to the Commission delegation to Morocco to recover the amounts due from the
         applicant.
      
       Procedure and forms of order sought by the parties
      16      By application lodged at the Registry of the Court on 24 August 2009, the applicant brought the present action.
      
      17      By separate document lodged at the Registry of the Court on 22 December 2009, the Commission raised a plea of inadmissibility,
         pursuant to Article 114 of the Rules of Procedure of the General Court.
      
      18      On 12 February 2010 the applicant submitted its observations on the plea of inadmissibility.
      
      19      The applicant claims that the Court should:
      
      –        annul the debit note and the reminder letter;
      –        order the Commission to pay the costs, even if the action is dismissed as being inadmissible.
      20      The Commission contends that the Court should:
      
      –        dismiss the action as clearly inadmissible;
      –        order the applicant to pay the costs.
       Law
      21      Under Article 114(1) of the Rules of Procedure, if a party so requests, the Court may make a decision on admissibility without
         considering the substance. Under Article 114(3), unless the Court otherwise decides, the remainder of the proceedings is to
         be oral. 
      
      22      In the present case, the Court considers that the documents before it provide sufficient information to enable it to rule
         upon the Commission’s plea without opening the oral procedure.
      
      23      The Commission objects that this action is inadmissible, on the grounds that, first, the Court is not competent in so far
         as the debit note has been issued in a contractual context and, second, that neither the debit note nor the reminder letter
         are measures against which an action may lie within the meaning of Article 230 EC.
      
      24      In that regard, it must be borne in mind that under Article 230 EC, the Community Courts review the legality of acts of the
         institutions intended to produce legal effects vis-à-vis third parties by bringing about a distinct change in their legal
         position (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9, and Joined Cases T‑377/00, T‑379/00, T‑380/00, T‑260/01 and T‑272/01 Philip Morris International v Commission [2003] ECR II‑1, paragraph 81).
      
      25      According to settled case-law, that jurisdiction concerns only the acts referred to by Article 249 EC, which the institutions
         must adopt under the conditions laid down by the Treaty (see order in Joined Cases T‑314/03 and T‑378/03 Musée Grévin v Commission [2004] ECR II‑1421, paragraph 63 and the case-law cited).
      
      26      By contrast, measures adopted by the institutions in a purely contractual context from which they are inseparable are, by
         their very nature, not among the measures covered by Article 249 EC, annulment of which may be sought before the Community
         judicature pursuant to Article 230 EC (order in Musée Grévin v Commission, paragraph 25 above, paragraph 64).
      
      27      In the present case, it is apparent from the documents submitted before the Court that, by the debit note and the reminder
         letter, which are intended to recover the penalties for delay due from the applicant to the Kingdom of Morocco on account
         of the failure to execute the Contract and of the balance of the advance which has not been recovered, the Commission, as
         it pointed out itself, acted in the name of and on behalf of the Kingdom of Morocco, in the context of the Contract.
      
      28      First of all, it is apparent from the letters dated 31 July 2006 and 12 August 2008, addressed to the applicant by the Kingdom
         of Morocco, that the failure to execute the Contract has been declared by the Kingdom of Morocco, in 2006, which led it, in
         2008, to terminate that Contract. By Provisional Statement No 41, dated 28 October 2008, the Kingdom of Morocco informed the
         applicant that the penalties for delay were due to it, under Article 34 of the General Conditions and under Article 34 of
         the Special Conditions of the Contract. Article 34 of the General Conditions of the Contract provides that liquidated damages
         are due to the Kingdom of Morocco in the event of delay in executing the Contract and Article 34 of the Special Conditions
         of the Contract provide the methods for calculating those liquidated damages.
      
      29      Next, it is important to note that the letter dated 22 January 2009, by which the Commission informed the applicant that a
         debit note would be sent to it, clearly shows that that debit note is based on Article 34 of the Special Conditions of the
         Contract and on Article 43.5 of the General Conditions of the Contract. Article 43.5 of the General Conditions of the Contract
         provides the obligation on the contractor to reimburse the Kingdom of Morocco for the amount paid in excess of the final amount
         due. It must also be pointed out that, first, in the letter dated 22 January 2009, the Commission declared that it was acting
         on behalf of the Kingdom of Morocco and, second, in its letter dated 26 March 2010 addressed to the Commission delegation
         to Morocco, the Kingdom of Morocco confirmed that it had given it authority to act in its name and on its behalf, to recover
         the amounts which were owed to it by the applicant.
      
      30      Finally, it is apparent from the letter dated 1 July 2009, addressed by the Commission to the applicant, that the debit note
         had been issued on the basis of Article 34.1 of the General Conditions of the Contract. In that same letter, the Commission
         explains that the debit note followed the service order of 23 April 2009, by which the Kingdom of Morocco had notified the
         applicant that recovery of EUR 3 825 324.11 would be executed, corresponding in particular to the penalties for delay and
         to the amount of the advance which had not been recovered.
      
      31      Having regard to the foregoing, the debit note issued by the Commission must be considered to be part of the context of the
         contractual relations existing between the applicant and the Kingdom of Morocco. In addition, since the reminder letter has
         the sole objective of instructing the applicant to pay the amounts set out in the debit note, that reminder letter is also
         part of the contractual context.
      
      32      However, the measure adopted by an institution in a contractual context must be considered as being severable from the latter
         where, first, the measure was adopted by that institution in the exercise of its own powers, and, second, it produces, by
         itself, obligatory legal effects capable of affecting the interests of its recipient against which, therefore, an action for
         annulment may be brought. Accordingly, an action for annulment brought by the addressee of the measure must be considered
         to be admissible (see, to that effect, and by analogy, Case C‑395/95 P Geotronics v Commission [1997] ECR I‑2271, paragraphs 14 and 15, and order in Case T‑481/08 Alisei v Commission [2010] ECR II‑117, paragraphs 63 and 64).
      
      33      In that context, the ‘own powers of an institution’ must be understood as those deriving from the Treaties or secondary law
         which are part of its public power prerogatives and accordingly allow it to create or amend, unilaterally, rights and obligations
         for a third party. On the other hand, the exercise of contractual rights by an institution, if the Union has received authority
         to act in the name of and on behalf of one of the contractual parties, does not constitute exercise of its own powers, within
         the meaning of the case-law referred to in the previous paragraph.
      
      34      However, in the present case, as was pointed out in paragraphs 27 to 31 above, both the debit note and the reminder letter
         were adopted in exercising the authority which the Kingdom of Morocco gave to the Union to recover the debts which were owed
         to it by the applicant under the General Conditions and the Special Conditions of the Contract. Accordingly, those instruments
         do not constitute the exercise of public law prerogatives by the Commission which it has under EU law.
      
      35      Consequently, the condition that the Commission is exercising its own powers is not satisfied.
      
      36      It follows, without it being necessary to examine whether the debit note and the reminder letter produce, by themselves, obligatory
         legal effects capable of affecting the applicant’s interests, that the present action must be dismissed as being inadmissible.
      
       Costs
      37      Under Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, or where the circumstances
         are exceptional, the Court may order that the costs be shared or that each party bear its own costs.
      
      38      In the present case, although the applicant has been unsuccessful, the Court takes the view that the Commission did not use
         clear and unequivocal language in drafting the debit note. Indeed, some aspects of the note, and, in particular, the reference
         to the possible adoption of a decision enforceable under Article 256 EC, could give rise to the impression, in the applicant’s
         mind, that it concerned a measure adopted in the exercise of the Commission’s own powers. In the light of that fact, the Court
         will make an equitable assessment of the facts of the present case in ruling that the Commission is to bear its own costs
         and pay those incurred by the applicant.
      
      On those grounds,
      THE GENERAL COURT (Fourth Chamber)
      hereby orders:
      1.      The action is dismissed as inadmissible.
      2.      The European Commission shall bear its own costs and shall pay those incurred by Groupement Adriano, Jaime Ribeiro, Conduril
            – Construção, ACE.
      Luxembourg, 21 October 2011.
      
               E. Coulon 
            
             
            
                     I. Pelikánová
            
         
               Registrar 
            
             
            
                     President
            
         * Language of the case: Portuguese