CELEX: 62019TN0384
Language: en
Date: 2019-06-20 00:00:00
Title: Case T-384/19: Action brought on 20 June 2019 — Parliament v AXA Assurances Luxembourg and Others

26.8.2019   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 288/53
            
         
      Action brought on 20 June 2019 — Parliament v AXA Assurances Luxembourg and Others
      (Case T-384/19)
      (2019/C 288/67)
      Language of the case: French
      
         Parties
      
      
         Applicant: European Parliament (represented by: E. Paladini and B. Schäfer, acting as Agents, and C. Point and P. Hédouin, lawyers)
      
         Defendants: AXA Assurances Luxembourg SA (Luxembourg, Luxembourg), Bâloise Assurances Luxembourg SA (Bertrange, Luxembourg), La Luxembourgeoise SA (Leudelange, Luxembourg), Delta Lloyd Schadenverzekering NV (Amsterdam, Netherlands)
      
         Form of order sought
      
      The applicant claims that the General Court should:
      
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                  Find that the water damage caused at the ‘Konrad Adenauer’ East site when heavy rainfall occurred, on 27 and 30 May 2016, comes within the scope of the ‘construction all-risk’ insurance policy taken out with the defendants;
               
            
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                  Accordingly, order the defendants to reimburse the expenses claimed to the European Parliament, in the amount of EUR 779 902,87 and in particular:
                  
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                              Order AXA Assurance Luxembourg SA to reimburse 50 % of the abovementioned amount, i.e. EUR 389 951,44;
                           
                        
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                              Order Bâloise Assurances Luxembourg SA to reimburse 20 % of the abovementioned amount, i.e. EUR 155 980,57;
                           
                        
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                              Order La Luxembourgeoise SA to reimburse 20 % of the abovementioned amount, i.e. EUR 155 980,57;
                           
                        
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                              Order Delta Lloyd Schadenverzekering NV to reimburse 10 % of the abovementioned amount, i.e. EUR 155 980,57;
                           
                        
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                              plus statutory interest for late payment, from 22 December 2017, the rate of which is equal to the sum of the interest rate applied by the European Central Bank to its most recent main refinancing operations plus eight percentage points;
                           
                        
            
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                  In the alternative, should the requests relating to the first and second heads of claim not be upheld, order the defendants jointly and severally to pay for the damage caused by the failure to fulfil obligations under Article I.13.2 of the ‘construction all-risk’ insurance policy, in the amount of EUR 779 902,87;
               
            
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                  Order the defendants to reimburse the European Parliament in respect of survey fees, in the amount of EUR 16 636,00, and in particular:
                  
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                              Order AXA Assurance Luxembourg SA to reimburse 50 % of the abovementioned amount, i.e. EUR 8 318,00;
                           
                        
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                              Order Bâloise Assurances Luxembourg SA to reimburse 20 % of the abovementioned amount, i.e. EUR 3 327,20;
                           
                        
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                              Order La Luxembourgeoise SA to reimburse 20 % of the abovementioned amount, i.e. EUR 3 327,20;
                           
                        
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                              Order Delta Lloyd Schadenverzekering NV to reimburse 10 % of the abovementioned amount, i.e. EUR 1 663,60;
                           
                        
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                              plus statutory interest for late payment, from 22 December 2017, the rate of which is equal to the sum of the interest rate applied by the European Central Bank to its most recent main refinancing operations plus eight percentage points;
                           
                        
            
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                  Order the defendants to pay the costs.
               
            
         Pleas in law and main arguments
      
      In support of the action, the applicant relies on a single plea in law, based on its right to insurance cover in respect of the claim which arose in May 2016. In support of that plea, it submits that the insurance cover exclusion clauses invoked by the defendants are ineffective. In that connection, the applicant relies on the following arguments:
      
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                  The insurance cover exclusion clause relating to flooding was misinterpreted by the defendants. It is clear from the context and provisions of the contract that the word ‘flooding’ refers to natural disasters, and not water ingress on premises that are usually dry,
               
            
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                  The insurance cover exclusion clause relating to any natural disaster is inapplicable. Natural disasters are exhaustively listed by the contract and heavy rainfall, such as that in May 2016, does not come within the scope of that definition.
               
            
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                  The insurance cover exclusion clause relating to inadequate sewer provision was misinterpreted by the defendants. The provisions of the contract refer to inadequate sewer provision in the sense of the insufficient capacity of the public sewage network.
               
            
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                  The insurance cover exclusion clause relating to normally foreseeable or unavoidable damage, or damage caused by a failure to follow best practice is invalid or, in any event, inapplicable in the present case.
               
            
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                  The exclusion clause relied upon by the defendants fails to satisfy the condition, laid down by Luxembourg law, whereby cases of gross negligence which are excluded from insurance cover must be expressly and exhaustively determined by the contract.
               
            
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                  The facts which allegedly support the applicability of such a clause are not sufficient to establish either the inevitability of the damage or the failure on the part of the insured to follow best practice.
               
            In support of its request in the alternative, the applicant relies on a single plea in law, alleging infringement of the procedural obligations set out in the contract, on account of the interruption ante tempore of survey operations.