JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
6 April 2017 (*)
(Arbitration clause — Grant agreement concluded in the framework of the Seventh Framework Programme for research, technological development and demonstration activities (2007-2013) — Non-performance of the contract — Repayment of the sums advanced — Default interest — Procedure by default)
In Case T‑238/16,
Clean Sky 2 Joint Undertaking, established in Brussels (Belgium), represented by B. Mastantuono, acting as Agent, assisted by M. Velardo, avocat,
applicant,
v
Scouring Environment SARL, established in Tauriac (France),
defendant,
ACTION brought on the basis of Article 272 TFEU for an order that Scouring Environment repay the sum advanced under Grant Agreement No 287071, together with default interest,
THE GENERAL COURT (Ninth Chamber),
composed of S. Gervasoni (Rapporteur), President, L. Madise and R. da Silva Passos, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1 Article 2(1) of Council Regulation (EC) No 71/2008 of 20 December 2007 setting up the Clean Sky Joint Undertaking (OJ 2008 L 30, p. 1) provides that this undertaking contributes to the implementation of the Seventh Framework Programme of the European Union. Under Article 1(2) of Council Regulation (EU) No 558/2014 of 6 May 2014 establishing the Clean Sky 2 Joint Undertaking (OJ 2014 L 169, p. 77), Clean Sky 2 replaced and succeeded the Clean Sky Joint Undertaking.
2 The Clean Sky Joint Undertaking concluded grant agreement No 287071 on 2 August 2011 with a company under French law, Scouring Environment SARL, concerning the project titled ‘Bicarbonate media blasting for paint-varnish removal and dry surface treatment’ (‘the grant agreement’).
3 Scouring Environment is designated in the grant agreement as the beneficiary acting as coordinator of the consortium of all the beneficiaries.
4 Pursuant to Article 6 of the grant agreement, the Clean Sky Joint Undertaking paid Scouring Environment an advance of EUR 60 000 to be distributed among the beneficiaries.
5 Articles 3 and 4 of the grant agreement state that the duration of the project which is the subject of the grant agreement is to be 30 months divided into three reporting periods, the first two of 12 months and the third of 6 months.
6 Point II.4.1 of Annex II to the grant agreement states that the consortium is to submit a periodic report for each of the periods specified in point 5 above within 60 days of the end of each respective period. The report is to comprise an overview of the progress of work, an explanation of the use of resources, and a financial statement by each beneficiary, together with a summary financial report.
7 The first reporting period of the project came to an end on 31 August 2012.
8 By letter dated 22 July 2013, the Clean Sky Joint Undertaking informed Scouring Environment that it had not received the ‘periodic and financial reports’ for the first reporting period of the project within the period specified at point II.4.1 of Annex II to the grant agreement. It requested Scouring Environment to meet its obligations within 30 days following receipt of the letter.
9 Having received no reply from Scouring Environment, the Clean Sky Joint Undertaking informed the latter by letter dated 14 November 2013 of the termination of the grant agreement pursuant to point II.38 of Annex II to that agreement.
10 Several other letters having gone unanswered, the Clean Sky Joint Undertaking issued a debit note for the amount of EUR 60 000 with a due date of 11 September 2014. The letter attached to the note informed Scouring Environment that, if the payment had not been made by the due date, then interest would be payable on the sum to be repaid.
11 Point II.21.2 of Annex II to the grant agreement states on this point that, if the obligation to repay is not honoured by the date set by the Clean Sky Joint Undertaking, then the sum due will bear interest for late payment, calculated at a rate specified in point II.5.5 of Annex II to the grant agreement, i.e. the interest rate applied by the European Central Bank (ECB) for its main refinancing operations on the first day of the month during which the time limit set by Clean Sky Joint Undertaking for repayment is reached, plus three and a half points. This last point also specifies that the interest for late repayment covers the period between the final date for repayment, exclusive, and the date of final payment, inclusive.
12 It is apparent from the Official Journal of the European Union (OJ 2014 C 295, p. 2) that the rate applied by the ECB for its main refinancing operations was fixed, on 1 December 2006, at 0.15%.
Procedure and forms of order sought
13 By application lodged at the Court Registry on 17 May 2016, the applicant, the Clean Sky 2 Joint Undertaking, brought the present action.
14 The application was served on Scouring Environment on 28 May 2016 by registered post with a form for acknowledgement of receipt.
15 The defendant having lodged no defence within the period prescribed, the applicant, on 15 September 2016, applied to the Court for judgment by default, in accordance with Article 123(1) of the Court’s Rules of Procedure.
16 The Registry served this application on Scouring Environment, which submitted no comments.
17 The applicant claims that the Court should:
– order Scouring Environment to pay the sum of EUR 60 000 corresponding to the amount of the advance paid to it;
– order Scouring Environment to pay it the sum of EUR 3 600 by way of default interest calculated at a rate of 3.65% for the period from 12 September 2014 to 3 May 2016;
– order Scouring Environment to pay the sum of six euro per day by way of default interest from 4 May 2016 and until the amount due is repaid;
– order Scouring Environment to pay the costs.
Law
18 In accordance with Article 123(3) of the Rules of Procedure, the General Court is to 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.
19 In the present case, first, the General Court clearly does have jurisdiction to hear the action, in the light, in particular, of the arbitration clause within the meaning of Article 272 TFEU, in Article 9(2) of the grant agreement, and in the light of the provisions of Article 10(1)(b) of Regulation No 71/2008, reproduced in essence in Article 10(1)(a) of Regulation No 558/2014, according to which the Court of Justice of the European Union has jurisdiction pursuant to any arbitration clause contained in agreements or contracts concluded by the Clean Sky Joint Undertaking.
20 Secondly, the action is not manifestly inadmissible.
21 Third, in the light of the background to the dispute in points 3 to 12 above, corresponding to the description of the facts submitted by the applicant in the application and substantiated by the documents in the file, the action is not manifestly lacking any foundation in law.
22 Consequently, the applicant’s form of order sought should be granted (see, to that effect, judgment of 25 May 2016, Commission v McCarron Poultry, T‑226/14, EU:T:2016:313, paragraphs 39 to 41).
23 Accordingly, Scouring Environment must be ordered to repay the applicant the sum of EUR 60 000, together with default interest calculated at 3.65% per annum — that is, 0.15% plus three and a half points, rates corresponding to default interest of six euro per day — from 12 September 2014 and until the date of full payment of the amount due.
Costs
24 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Scouring Environment has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1. Orders Scouring Environment SARL to repay the Clean Sky 2 Joint Undertaking the sum of EUR 60 000, together with accrued default interest calculated at the rate of 3.65% per annum from 12 September 2014 until the date of full payment of the amount due;
2. Orders Scouring Environment to pay the costs.
Gervasoni
Madise
Da Silva Passos
Delivered in open court in Luxembourg on 6 April 2017.
E. Coulon
G. Berardis
Registrar
President
* Language of the case: English.