ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber)
10 September 2002 (1) (Article 238 EC - Arbitration Clause - Thermie programme - Unilateral termination of the contract by the Commission - Application for a decision that there is no need to adjudicate)
In Case T-287/01,
Bioelettrica SpA, established in Pisa (Italy), represented by O. Fabe Dal Negro, lawyer,
applicant,
v
Commission of the European Communities, represented by H. Støvlbaek and R. Amorosi, acting as Agents, assisted by M. Moretto, lawyer, with an address for service in Luxembourg,
defendant,
APPLICATION for a declaration that the termination, notified by the Commission to the applicant on 6 September 2001, of Contract BM/1007/94 IT/DE/UK/PO, signed on 12 December 1994, relating to the implementation of the project entitled Energy Farm: an IGCC plant for the production of electricity and heat through gasification of SRF biomass (Phase I) is void and illegal, and for an order that the Commission make good the harm allegedly sustained by the applicant as a result of the Commission's conduct,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of: M. Jaeger, President, K. Lenaerts and J. Azizi, Judges,
Registrar: H. Jung,
makes the following
Order
Facts
1.
Pursuant to Council Regulation (EEC) No 2008/90 of 29 June 1990 concerning the promotion of energy technology in Europe (Thermie programme) (OJ 1990 L 185, p. 1), now repealed, on 20 December 1994 the Commission concluded with seven companies - Enel SpA (Enel), Lurgi Energie und Umwelt GmbH, Lurgi Italiana SpA, Cooperative Agricola Le Rene (Le Rene), South Western Power Ltd (SWP), European GasTurbines Ltd (EGT) and EDP Electricidade de Portugal SA (EDP) - Contract BM 1007/94 IT/DE/UK/PO (the contract) relating to the implementation of the project entitled Energy Farm: an IGCC plant for the production of electricity and heat through gasification of SRF biomass (Phase I), (the project). Lurgi Energie und Umwelt GmbH and Lurgi Italiana SpA - now Lurgi SpA - are part of the Lurgi group, which also included, during the period concerned, Lurgi Envirotherm GmbH, MG Engineering Lurgi and Lurgi AG. The various companies in that group involved in the events which gave rise to this case will hereinafter be referred to, without distinction, as Lurgi.
2.
Initially, the term of the project was set at 48 months, from 1 January 1995 to 31 December 1998 (Article 2(1) of the contract). The total cost of the project was estimated at ECU 36 698 720 (Article 3(1) of the contract). The Commission's financial contribution was originally limited to a maximum of ECU 10 197 229 (Article 3(2) of the contract).
3.
Article 9 makes Italian law the law of the contract.
4.
Under Article 8(2)(f) of the General Conditions set out in Annex II to the contract, the Commission may terminate the contract if a contractor does not start work on the date stated therein and if it considers any other date suggested to be unacceptable. The last sentence of Article 8(2) of the General Conditions provides that, in that event, the contractors must be given one month's notice of the termination of the contract, in writing, by means of a document accompanied by a form for acknowledgment of receipt or by registered letter. Under Article 8(4), if the contract is terminated on the basis of Article 8(2)(f), the Commission may claim reimbursement of all or part of the financial contribution, together with interest calculated from the date of receipt of the relevant payment at the rate applied by the European Monetary Fund to its ECU transactions, plus two points.
5.
Under Article 12 of the General Conditions, the Court of Justice of the European Communities has exclusive jurisdiction to deal with any dispute relating to the performance of the contract.
6.
On 18 July 1995, Bioelettrica SpA (Bioelettrica) was constituted by CISE Spa (99% owned by Enel), Lurgi, South Western Power Investments Ltd (100% owned by SWP), Energia Verde SpA (62% owned by Le Rene) and EDP. In accordance with Article 5 of its articles of association, its object is to construct and operate a thermal power station in Italy, fuelled by plant based biomass based on a fluidised bed air gasifier on a combined cycle (IGCC).
7.
Under supplementary agreement No 1 to the contract, signed by the parties in January 1996, Bioelettrica became a party to the contract and took on the role of project coordinator, performed until then by Enel. By the same agreement, EGT withdrew from the contract although it retained the status of associate contractor. Under supplementary agreement No 2 to the contract, signed by the parties between October 1996 and December 1998, SWP withdrew from the contract and its rights and obligations were taken over by the other parties to the contract. In accordance with supplementary agreement No 3 to the contract, signed by the parties between March and June 1997, Bioelettrica, as project coordinator, became responsible for administering the payments made by the Commission, including the advance paid under Article 4(1) of the contract.
8.
On 30 May 1997, a contract for an amount of ITL 35 000 million was concluded between Bioelettrica, as principal, and Lurgi, as contractor, for Lurgi to carry out work on the design, construction, installation and testing of a gasification plant for the thermal power station referred to in paragraph 6 above (the contract of 30 May 1977). Under point 1.1 of the Special Conditions annexed to that contract, the work was to be carried out within 30 months.
9.
By supplementary agreement No 4 to the contract, signed by the parties between January and December 1998, the Commission's maximum financial contribution was raised to ECU 10 897 229. It was subsequently raised to ECU 11 897 229 by supplementary agreement No 5 to the contract, signed by the parties in December 1998.
10.
By fax of 7 April 1999, Lurgi informed Bioelettrica that it considered that the technical specifications contained in the contract of 30 May 1997 should be amended in order to improve the efficiency of the gasification plant. It added that those amendments, which were detailed in the fax, would inevitably involve an increase in the project costs.
11.
Following an exchange of letters between Lurgi and Bioelettrica intended to enable Bioelettrica to appreciate the need for the suggested technical amendments, on 16 September 1999 Bioelettrica and Lurgi signed a memorandum of understanding laying down the essential variations to be made to the gasification plant project and providing that the remuneration payable to Lurgi for completing the project would be raised to ITL 46 300 000 000.
12.
By letter of 23 December 1999, Bioelettrica, on the basis of the terms of the memorandum of understanding referred to in the previous paragraph, informed Lurgi that the time-limits laid down therein for completion of the agreed actions, in particular for conclusion of an agreement amending the terms of the contract of 30 May 1997 and for delivery by Lurgi of bank documents relating to the increase in the cost of the works, had expired without any of those actions being undertaken. It suggested that the parties should agree urgently the terms of the amendments to be made to the aforementioned contract and that Lurgi should supply the abovementioned bank documents.
13.
On 5 January 2000, the Commission sent a letter to Bioelettrica informing it that it would extend the time-limit for completing the project to 31 December 2003.
14.
In response to a request made by Bioelettrica on 21 April 2000 for information to enable it to reassess Lurgi's recommendations for technical amendments, Lurgi stated, in a letter to Bioelettrica dated 5 May 2000, that it considered the technology which had been envisaged in the contract of 30 May 1997 to be obsolete. It also stated that, pending clarification on that point, it had decided to suspend work.
15.
In a letter...
