In Case T-149/00 R,
Innova, Centro Euromediterraneo per lo Sviluppo Sostenibile, established in Calatafimi, Italy, represented by D. Fosselard, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Arendt and Medernach, 8-10 Rue Mathias Hardt,
applicant,
v
Commission of the European Communities, represented by M.-J. Jonczy, Legal Adviser, and E. Paasivirta, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
defendant,
APPLICATION for the suspension of the operation of the Commission's decision to terminate the contract relating to the Dionysos project concluded with the applicant in so far as it requires the applicant to repay all the sums received under the said contract, and, in so far as necessary, of the debit note communicated pursuant to that decision,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order
Facts and procedure
1 Innova, Centro Euromediterraneo per lo Sviluppo Sostenibile is a non-profit-making association incorporated under Italian law whose object is to contribute to long-term development in the Mediterranean countries.
2 On 5 August 1998 the Commission concluded with the applicant a contract (hereinafter the contract) financed in the context of a programme based 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), by which the applicant undertook to carry out a project described in Schedule A of the contract and entitled Dionysos - Network of ancient sites where spectacles were held, in consideration for a financial contribution from the Commission in the amount of ECU 891 188.
3 Clause 15.3 of the contract provides:
If the beneficiary fails to comply with an obligation under this contract and does not promptly take steps to rectify the matter, the Commission reserves the right to suspend or cease financing for the project or the payments required under the contract and, if necessary, to terminate the contract. In the event of termination, the Commission reserves the right to reimbursement of all payments already made.
4 Clause 15.6 provides:
If payments are not reimbursed within the required time, the amount owed by the beneficiary will bear interest at the rate applicable by the European Monetary Institute (EMI) to its operations in [ecus], published in the Official Journal, C Series, and in force at the end of the period prescribed for reimbursement to be made.
The beneficiary agrees that the order for recovery duly drawn up by the Commission for the said reimbursement is enforceable within the meaning of Article 192 of the [EC] Treaty in every country in which the beneficiary has a registered office. (Article 192 of the EC Treaty is now Article 256 EC.)
5 Clause 17 of the contract stipulates that [a]ny dispute between the Commission and the beneficiary which arises out of the performance of the ... contract and which cannot be settled amicably between the parties will be subject to the jurisdiction of the Brussels courts. Clause 18 states that the ... contract is governed by Belgian law.
6 In performance of the contract, the applicant received EUR 404 273 from the Commission.
7 By letter of 23 March 2000 Mr Laurent, Head of Unit at the Commission's Directorate-General for External Relations, informed the applicant that he had decided to terminate the contract in accordance with Clause 15.3. In the letter he states that [t]his decision to terminate the contract is accompanied, of course, by the claim for reimbursement of all or part of the payments already made and that the Commission reserves the right to activate the bank guarantee provided by Innova for that purpose.
8 As justification for the decision, the author of the letter states: I find that, since the contract came into effect, there has been chronic failure to comply with Innova's contractual obligations in the implementation and management of the Dionysos project, and also that your organisation has been unable promptly to take the necessary measures to rectify the matter.
9 By letter of 6 June 2000 enclosing a debit note dated 29 May 2000, which the applicant received on 22 June, the Commission requested that the applicant repay the sum of EUR 404 273 within fifteen days of receipt of the letter, failing which proceedings would be taken to recover the amount in question plus interest.
10 By application lodged at the Court Registry on 2 June 2000, the applicant brought an action under the fourth paragraph of Article 230 EC for the annulment of the Commission's decision to terminate the contract.
11 By a separate document lodged at the Court Registry on 6 July 2000, it also made an application under Article 242 EC for suspension of the Commission's decision to terminate the contract in so far as it requires the applicant to repay all the sums already received from the institution under the said contract, and, in so far as necessary, of the debit note communicated pursuant to that decision. The applicant also sought application of Article 105(2) of the Rules of Procedure of the Court of First Instance on the grounds that any measure to enforce the contested decision would cause it serious and irreparable damage.
12 On 7 July 2000 the President of the Court asked the applicant to produce three documents which were necessary for an understanding of the application for interim measures, and asked the Commission to say whether it intended to take the necessary steps, as prescribed in Article 256 EC, to obtain enforcement of the decision before the order was made in the interlocutory proceedings.
13 On the same day the applicant produced the documents which had been requested and the Commission replied to the question put to it by stating expressly that Article 256 EC was not applicable since the relationship between the institution and Innova was purely contractual.
14 On 14 July 2000 the Commission submitted its observations on the application for interim measures.
15 Having regard to the documents in the case, the President of the Court considers that he has all the information necessary to give a ruling on this application for suspension of operation without the need for the parties to submit oral pleadings.
Law
16 Under the combined provisions of Articles 242 EC and 243 EC and Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93/350/Euratom, ECSC, EEC of 8 June 1993 (OJ 1993 L 144, p. 21), the Court may, if it considers that the circumstances so require, order the suspension of the operation of the contested measure or prescribe the necessary interim measures.
17 Under the first subparagraph of Article 104(1) of the Rules of Procedure, an application for suspension of the operation of a measure is admissible only if the applicant has contested that measure in an action brought before the Court. This rule is not a mere formality but presupposes that the action on the merits, to which the application for interim relief is an adjunct, may indeed be examined by the Court.
18 According to settled case-law, the issue of the admissibility of the main action may not, in principle, be examined in proceedings for interim relief, lest the case which is the subject of the main action be prejudged. However, it may become necessary, when the manifest inadmissibility of the main action to which the application for interim relief is an adjunct is raised, to show specific evidence to support the conclusion that the main action is prima facie admissible (see, in particular, Case T-1/00 R Hölzl and Others [2000] ECR II-0000, paragraph 21).
19 Article 238 EC provides that [t]he Court of Justice shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the Community, whether that contract be governed by public or private law. Under the combined provisions of that article and Decision 88/591, as amended, the Court of First Instance has jurisdiction to give judgment at first instance in disputes relating to contractual matters brought before it by natural or legal persons only pursuant to an arbitration clause.
20 In the present case, there is no clause conferring jurisdiction on the Court of First Instance to hear disputes arising out of the performance of the contract. The provision concerning the settlement of disputes which is contained in Clause 17 of the contract expressly stipulates that any dispute arising out of the performance of the contract shall be subject to the jurisdiction of the Brussels courts.
21 However, the applicant maintains that that provision in the contract concerns only disputes relating to the performance of the contract, not the Commission's decision to terminate the contract itself. In that respect, it need only be noted that the dispute between the applicant and the Commission as regards the termination of the contract and the restoration of the pre-contractual situation which that implies - which would justify the repayment of all the sums received - is directly related to the obligations set out in the contract, since termination, for which Clause 15 provides, is merely the penalty imposed on one of the two contracting parties for failing to comply with his obligations. A dispute of this nature cannot, therefore, be dissociated from a dispute concerning the performance of the contract within the meaning of Clause 17.
22 Accordingly, in the absence of an arbitration clause granting it jurisdiction, the Court of First Instance cannot adjudicate, in an action for annulment, on what is in fact a claim concerning the performance of a contract concluded by the Commission. To do so would be to extend its jurisdiction beyond the limits placed by Article 240 EC on the disputes of which it may take cognisance, since that article specifically gives national courts or tribunals ordinary jurisdiction over disputes to which the Community is a party (order in Case T-186/96 Mutual Aid Administration Services v Commission [1997] ECR II-1633, paragraph 47).
23 It follows that, since the Court does not have jurisdiction to hear the action to which the application for interim relief is an adjunct, the application must be dismissed as inadmissible (see Joined Cases 31/86 and 35/86 Laisa and CPC España v Council [1988] ECR 2285, paragraph 18, and order in Case C-399/97 Glasoltherm v Commission and Others [1998] ECR I-4521, paragraph 8).
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
