San Marco Impex Italiana Srl v Commission of the European Communities.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:1996:331
• Court: Court of Justice (European Union)
• Docket Number: C-19/95
• Date: 17 September 1996
• Celex Number: 61995CO0019
• Procedure Type: Recurso por responsabilidad

Avis juridique important

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61995O0019

Order of the Court (First Chamber) of 17 September 1996. - San Marco Impex Italiana Srl v Commission of the European Communities. - Appeal - Public works contract - Article 178 and the second paragraph of Article 215 of the Treaty. - Case C-19/95 P.

European Court reports 1996 Page I-04435

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

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1. Appeals ° Pleas in law ° Mere repetition of pleas and arguments put forward before the Court of First Instance ° Incorrect appraisal of the facts ° Inadmissible ° Rejected

(EC Treaty, Art. 168a; EC Statute of the Court of Justice, Art. 51; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

2. Appeals ° Pleas in law ° Incorrect appraisal of evidence properly adduced ° Inadmissible ° Rejected

(EC Statute of the Court of Justice, Art. 51)

3. Appeals ° Pleas in law ° Plea put forward for the first time in the appeal proceedings ° Inadmissible

(EC Statute of the Court of Justice, Art. 51)

Summary

1. It follows from Article 168a of the Treaty, Article 51 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal.

That requirement is not satisfied by an appeal which confines itself to repeating or reproducing word for word the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that court. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake.

An appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. The Court of First Instance has exclusive jurisdiction, first, to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, secondly, to assess those facts. The Court of Justice has jurisdiction under Article 168a of the Treaty to review the legal characterization of those facts by the Court of First Instance and the legal conclusions it has drawn from them.

2. It follows from Article 113(2) of the Rules of Procedure of the Court of Justice and Article 48(2) of the Rules of Procedure of the Court of First Instance that, in appeal proceedings, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence submitted to it.

3. A plea in law put forward for the first time in an appeal to the Court of Justice must be rejected as inadmissible. Were a party to be allowed to put forward before the Court of Justice a plea in law which it had not raised before the Court of First Instance, that would enable it to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the Court' s jurisdiction is confined to review of the assessment made by the Court of First Instance of the pleas argued before it.

Parties

In Case C-19/95 P,

San Marco Impex Italiana Srl, a company governed by Italian law, whose registered office is in Modena, Italy, represented by Lucette Defalque, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Alex Schmitt, 62 Avenue Guillaume,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Fifth Chamber) of 16 November 1994 in Case T-451/93 San Marco v Commission [1994] ECR II-1061, seeking to have that judgment set aside and claiming compensation for the damage allegedly suffered by the appellant in relation to a public works contract concluded by it with the Government of the Somali Democratic Republic,

the other party to the proceedings being:

Commission of the European Communities, represented by Hans Peter Hartvig, Legal Adviser, and Claire Bury, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of the Commission' s Legal Service, Wagner Centre, Kirchberg,

THE COURT (First Chamber)

composed of: D.A.O. Edward (Rapporteur), (President of Chamber), P. Jann and L. Sevón, Judges,

Advocate General: N. Fennelly,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

Grounds

1 By application lodged at the Registry of the Court of Justice on 26 January 1995, San Marco Impex Italiana (hereinafter "San Marco") brought an appeal under Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance (Fifth Chamber) of 16 November 1994 in Case T-451/93 San Marco v Commission [1994] ECR II-1061, which dismissed its action under Article 178 and the second paragraph of Article 215 of the EEC Treaty for compensation for the damage allegedly suffered by it in connection with a public works contract which it concluded with the Government of the Somali Democratic Republic.

2 It is appropriate first to summarize briefly the background to the dispute as set out in the contested judgment.

3 On 3 March 1987 the Commission, acting on behalf of the European Economic Community, concluded an agreement with the Somali Democratic Republic by which it agreed to finance a project submitted by the Somali Government for the design and construction of five bridges across the River Shebelli and one bridge across the River Juba, together with the construction of associated access roads. That agreement was concluded under the second ACP-EEC Convention, signed at Lomé on 31 October 1979 (OJ 1980 L 347, p. 2, hereinafter "the Second Lomé Convention"), and the corresponding funds were made available from the Fifth European Development Fund ("the EDF") (paragraph 1).

4 Following the issue of a call for tenders, a contract was concluded on 22 February 1988 between San Marco and the Somali Minister for Foreign Affairs as National Authorizing Officer, on behalf of the Somali Ministry for Public Works and Housing. The contract was endorsed by the delegate of the Commission in Somalia ("the delegate") and by Consulint International (hereinafter "Consulint"), consulting engineers, hired by the Somali Government to supervise the construction works (paragraph 2).

5 The works commenced in May 1988 (paragraph 5).

6 Two problems then arose. The first concerned replacement, at the suggestion of Consulint, of one of the sub-base materials for the access roads because it was not available sufficiently close to the work sites. That change entailed an increase in the unit cost of the materials. The second problem arose from the refusal of the delegate to endorse two invoices incorporating price revisions for certain materials (cement, steel, diesel fuel and labour) on the ground that the revisions were based only on invoices and not ° for the materials concerned ° on proof of an increase in market prices (paragraphs 6 to 8).

7 On 23 August 1989, a request for additional funding of ECU 750 000 was submitted by the National Authorizing Officer through the Commission delegate in order to resolve, in particular, those two problems. In anticipation that such funding would be forthcoming, Addendum No 1 to the contract, drafted by Consulint and signed by the appellant, the National Authorizing Officer and the Somali Ministry of Public Works and Housing, was sent to the delegate on 28 August 1989 for endorsement (paragraphs 13 and 14).

8 On 21 December 1989 the Commission, through its delegate, informed the National Authorizing Officer of its decision to provide additional funding of ECU 750 000. By letter of 25 December 1989, the Somali Department of Highways informed Consulint that "Addendum No 1 (supplementary fund) has been approved". Consulint sent a copy of that letter to the appellant on 27 December 1989, stating that the additional funding of ECU 750 000 had been approved "as per Addendum No 1"...