Opinion of Advocate General Emiliou delivered on 18 January 2024.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2024:63
• Date: 18 January 2024
• Celex Number: 62021CC0766
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 18 January 2024(1)

Case C‑766/21 P

European Parliament

v

Axa Assurances Luxembourg SA,

Bâloise Assurances Luxembourg SA,

La Luxembourgeoise SA,

Nationale-Nederlanden Schadeverzekering Maatschappij NV

(Appeal – Article 272 TFEU – Arbitration clause contained in a contract concluded by the European Union – Article 123 of the Rules of Procedure of the General Court – Defendant in default – Judgment by default – Application to set aside a judgment by default – Article 56 of the Statute of the Court of Justice of the European Union – Articles 172 and 176 of the Rules of Procedure of the Court of Justice – Response to an appeal – Cross-appeal – Error of interpretation – Inadequate and contradictory statement of reasons)

I. Introduction

1. The texts governing procedure before the Courts of the European Union are akin to a railway system. Each track represents a procedural route, while the trains operating on those tracks symbolise the cases that are brought before this judicial institution. As the progression of a case unfolds, the rules of procedure serve as the railway signalling, ensuring that the case stays on the appropriate track towards its final destination.

2. Nevertheless, like a train journey, the legal journey of a case may encounter junctions. Appeals, cross-appeals and other mechanisms may prompt a shift in direction of a case, offering an alternate route to its destination, all the while adhering to the established procedural rules. In that regard, just as a train relies on a smooth-functioning railway network, legal cases depend on precisely defined procedural rules to ensure their fair and proper resolution.

3. The present case encompasses those considerations.

4. By its appeal, the European Parliament requests the Court of Justice to set aside, in part, the judgment of the General Court in Parliament v Axa Assurances Luxembourg and Others, (2) by which that court dismissed, for the most part, its action seeking the reimbursement of costs incurred as a consequence of water damage to the Konrad Adenauer building (‘the KAD’) in Luxembourg City (Luxembourg) in May 2016.

5. At the same time, the present case involves a cross-appeal, lodged by Nationale-Nederlanden Schadeverzekering Maatschappij NV (‘NN’), one of the defendants at first instance, seeking the annulment of (other parts of) the judgment under appeal, to the extent that the General Court ordered it, by default, to reimburse the Parliament a portion of the costs claimed, together with statutory interest for late payment.

6. At the request of the Court of Justice, this Opinion will focus on the cross-appeal brought by NN. However, the particulars of this case provide the Court of Justice with a chance to impart greater clarity on certain features of default procedures, which is all the more important in the present case because the General Court has, in my view, erred in law in applying the relevant rules in that regard. Accordingly, this Opinion will also delve into those issues.

II. Legal framework

A. The Statute of the Court of Justice of the European Union

7. Article 41 of the Statute of the Court of Justice of the European Union (‘the Statute’) reads as follows:

‘Where the defending party, after having been duly summoned, fails to file written submissions in defence, judgment shall be given against that party by default. An objection may be lodged against the judgment within one month of it being notified. …’

8. In accordance with Article 56 of the Statute:

‘An appeal may be brought before the Court of Justice, within two months of the notification of the decision appealed against …

Such an appeal may be brought by any party, which has been unsuccessful, in whole or in part, in its submissions. …’

B. The Rules of Procedure of the Court of Justice

9. Article 172 of the Rules of Procedure of the Court of Justice (‘the RPCJ’), entitled ‘Parties authorised to lodge a response’, provides that ‘any party to the relevant case before the General Court having an interest in the appeal being allowed or dismissed may submit a response within two months after service on him of the appeal. …’

10. Article 176 of the RPCJ concerns cross-appeals. Pursuant to its first paragraph, ‘the parties referred to in Article 172 of [the RPCJ] may submit a cross-appeal within the same time limit as that prescribed for the submission of a response’. In that regard, in accordance with Article 178(1) of the RPCJ, a cross-appeal shall seek to have set aside, in whole or in part, the decision of the General Court.

C. The Rules of Procedure of the General Court

11. In accordance with Article 123 of the of the Rules of Procedure of the General Court (‘the RPGC’), entitled ‘Judgments by default’:

‘1. Where the General Court finds that a defendant on whom an application initiating proceedings has been duly served has failed to respond to the application in the proper form or within the time limit prescribed … the applicant may, within a time limit prescribed by the President, apply to the General Court for judgment by default.

2. A defendant in default shall not intervene in the default procedure and, with the exception of the decision, which closes the proceedings, no procedural document shall be served on him.

3. The General Court shall give judgment in favour of the applicant in the judgment by default, unless it is clear that the General Court has no jurisdiction to hear and determine the action or that the action is manifestly inadmissible or manifestly lacking any foundation in law.

…’

12. Under Article 166 of the RPGC, a defendant in default may, pursuant to Article 41 of the Statute, submit an application to set aside a judgment by default.

III. Background to the dispute, the procedure before the General Court and the judgment under appeal

A. Background to the dispute

13. The background to the dispute is set out in detail in the judgment under appeal. (3) The factual circumstances that are relevant to this Opinion may be summarised as follows.

14. In 2011, the Parliament initiated a tender procedure to secure a tous risques chantier (an ‘all construction site risks’) insurance policy for the major renovations and construction work forming part of the KAD extension project in Luxembourg City. The proposal presented by AXA Assurances Luxembourg SA (‘AXA’), Bâloise Assurances Luxembourg SA, La Luxembourgeoise SA, and Delta Lloyd Schadeverzekering NV was selected. On 12 December 2018, that latter company was absorbed by NN (collectively, ‘the defendants at first instance’).

15. On 3 April 2012, the European Union, represented by the Parliament, concluded the all construction site risks contract (‘the CAR contract’), referred to in the tender, with the defendants at first instance. The contract designated AXA as the lead insurer. (4)

16. Following substantial rainfall on 27 and 30 May 2016, rainwater from the KAD construction site seeped into the basement of the building. That accumulation of water could not be drained, creating a humid environment in areas in which technical equipment had already been installed. As a result, that equipment was damaged.

17. On 30 May 2016, the company overseeing the major works on that construction site filed an insurance claim in view of the circumstances. By letter of 15 July 2016, AXA, acting as the lead insurer, informed the Parliament that, on the basis of the information examined by its experts, the abovementioned circumstances were not covered by the CAR contract, and, thus, denied any liability.

18. Despite an exchange of written correspondence and a meeting, the disagreement between AXA and the Parliament persisted. The latter sent a letter of formal notice to the defendants at first instance, based on a provisional damage estimation.

19. Following that first letter, the Parliament renewed that notice on 28 November 2018, stating that the damage suffered amounted to EUR 800 624.33, excluding value added tax.

B. The procedure before the General Court and the judgment under appeal

20. On 20 June 2019, the Parliament brought an action pursuant to Article 272 TFEU before the General Court, requesting that the defendants at first instance be ordered to reimburse the costs related to the water damage caused to the KAD equipment in May 2016. In support of its action, the Parliament relied on six pleas in law.

21. On 10 September 2019, AXA, Bâloise Assurances Luxembourg and La Luxembourgeoise submitted their defence to the General Court.

22. Having been informed that Delta Lloyd Schadeverzekering had been absorbed by NN, by letter of 13 January 2020, the Registry of the General Court notified the latter that an application had been lodged, and set the time limit for it to submit its defence.

23. NN did not submit a statement of defence within the prescribed period.

24. By letter of 29 June 2020, the Registry of the General Court informed NN that, in accordance with Article 123 of the RPGC, which concerns judgments by default, and at the request of the Parliament, it would no longer participate in the default proceedings and would only be served with the decision bringing those proceedings to a close.

25. On 29 September 2021, by points 2 and 4 of the operative part of the judgment under appeal, the General Court dismissed the action in so far as it concerned the defendants at first instance, with the exception of NN. In points 1 and 3 of the operative part of that judgment, that court ordered NN to reimburse the sum of EUR 79 653.89 to the Parliament (which corresponds to the amount the Parliament claimed against NN in its forms of order), together with statutory interest for late payment, as well as to bear the costs of the default proceedings to the extent that those proceedings concerned it.

26. On 18 November 2021, in accordance with Article 41 of the Statute and Article 166 of the RPGC, NN lodged an...