Action brought on 2 November 2005 — ARCHI.M.E.D.-E.S v Commission

(Case T-396/05)

(2006/C 74/40)

Language of the case: French

Parties

Applicant: Architecture, Microclimat, Energies Douces — Europe et Sud SARL (ARCHI.M.E.D.-E.S) (Ganges, France) (represented by: P.-P. van Gehuchten, J. Sambon, P. Reyniers, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

The applicant is party to Contract BU 209-95 concluded with the Commission in consequence of the invitation to tender made in connection with the specific programme for research and technological development in the field of non-nuclear energy (1) and covering the execution of a project of renovation of a building in Lyon by using solar and bio-climatic architecture methods. In execution of its contractual obligations, the applicant, on 12 December 2001, sent the Commission the final report on the project. The Commission did not accept that report and, on 5 July 2002, sent the applicant a decision to recover certain payments made by refusing to accept certain costs declared by it in that report. Neither exchanges of correspondence between the parties, nor the meetings held nor the intervention of a mediator could bring about an amicable settlement of the dispute.

By registered letter of 30 August 2005, the Commission sent the applicant a final recovery decision preceded by a debit note of 23 August 2005. By another registered letter of 5 October 2005, the Commission also communicated to the applicant a decision imposing a set-off of their reciprocal claims: certain claims of the Commission against the applicant in connection with the contract in question, on the one hand and, on the other hand, certain claims of the applicant against the Commission to which it is entitled in connection with another contract. Those are the decisions challenged.

The applicant challenges the decisions relying on two main pleas in law.

First of all, it claims that, by the contested decisions, the Commission is in breach of the ordinary rules of set-off between reciprocal claims. The applicant maintains that such set-off is not available when the claims are governed by two different legal systems. According to the applicant, its claims against the Commission are based on Community law, while the Commission's claims against the applicant are governed by French law. In addition, the applicant claims that the Commission has no legal basis enabling it to impose the set-off on the applicant, while the claims concerned are as yet uncertain, which is substantiated by numerous challenges on the part of the applicant itself and the process before the mediator which has not yet been completed.

By its second plea in law, the applicant submits that the recovery decision should be annulled for failure to state reasons. It avers that the Commission has never furnished satisfactory explanations, in particular with regard to the arguments raised by the applicant over the manner in which it established the amount of its claim.

(1)  Programme put in place by Council Decision 94/806/EC of 23 November 1994 (OJ L 334 of 22 December 1994, p. 87).