61997C0172(01)

I - Introduction

1. This case concerns the recovery of funds advanced by the Commission to the Syndicat intercommunal à vocation unique du plan d'eau de la Vallée du Lot (SIVU) and Hydro-Réalisations SARL (Hydro). The project for which the funds had been advanced, the construction of a small hydro-electric power station, was discontinued, which is why the Commission is seeking to recover the amount advanced together with interest.

II - Facts and procedure

A - The contract between the parties

2. On 6 December 1990 the European Economic Community, represented by the Commission, entered into Contract no HY 84/89 FR with SIVU and Hydro, acting jointly. The aim of the contract was to provide financial support for the project Water level on the river Lot - Incorporation in the barrage weir of a small low-head hydro-electric power station. The funds were advanced pursuant to Council Regulation (EEC) No 3640/85 of 20 December 1985 on the promotion, by financial support, of demonstration projects and industrial pilot projects in the energy field.

3. The following clauses in the contract are relevant for the purposes of the assessment of this application.

4. Under Clause 4.3 of the contract, SIVU and Hydro are required to provide the Commission regularly with progress reports and statements of expenditure incurred.

5. Clause 9 governs the conditions under which the contract may be terminated. Under Clause 9.1 each party may terminate the contract where continuance of the work programme set out in Annex I to the contract has been deprived of its purpose, in particular owing to technical or economic problems or if the estimated cost of the project is exceeded by an unreasonable amount.

6. Under Clause 9.3 SIVU and Hydro are required to immediately repay any excess amount in the event that the funds advanced by the Commission prove to have been overpaid. The amount due is subject to interest from the date of the completion or cessation of the work which is the subject-matter of the contract.

7. The interest rate agreed upon in Clause 9.4 is that of the European Monetary Cooperation Fund for its transactions in ecus as published on the first working day of each month.

8. The contract stipulates that the Court of Justice has jurisdiction to hear all claims between the parties (Clause 13). It is subject to French law (Clause 14).

9. On 31 December 1990 the Commission paid an advance under the contract of EUR 83 928, which was remitted to SIVU on 17 January 1991. On 23 May and 13 August 1991 SIVU submitted its first technical progress report and a first financial statement to the Commission. Despite numerous requests, the Commission did not receive any further reports for the second half of 1991. It therefore sent a reminder on 7 October 1992 demanding the reports and giving a time-limit of one month for SIVU to comply, at the same time threatening to terminate the contract in the event of non-compliance.

10. According to statements made by the Commission in its application, the reports submitted by SIVU in fulfilment of its contractual obligations reveal that work on the project continued until 31 May 1991.

11. By letter of 6 November 1992 SIVU informed the Commission that the project had been modified in order to take into consideration misgivings expressed by environmental protection groups. The construction of a small hydro-electricity power station had been abandoned in favour of the construction of a spill-weir. SIVU therefore declined the financial support and offered to reimburse the advance.

12. By letter of 18 November 1992 the Commission terminated the contract under Clause 9 and demanded that SIVU repay EUR 83 928, together with interest from the date of receipt of the advance, 17 January 1991.

13. Liquidation proceedings were initiated against Hydro on 13 February 1992.

B - The judgment by default

14. Despite further notices requesting payment of the amount owed, made on 8 December 1992, 27 February 1994, 1 June 1994, 31 October 1994 and 12 October 1995, SIVU at first failed to respond. The Commission therefore lodged an application at the Court of Justice initiating proceedings against SIVU and Hydro on 2 May 1997, requesting that the defendants be ordered to pay EUR 83 928 together with contractual interest as from 17 January 1991, the day on which the advance was paid, and statutory default interest as from 28 February 1993, the deadline stipulated in the first demand for payment.

15. Neither defendant lodged a defence within the time-limit. The Commission applied for judgment by default pursuant to Article 94(1) of the Rules of Procedure of the Court of Justice.

16. On 10 June 1999 the Court of Justice gave judgment by default, the operative part of which read as follows:

[The Court]

...

1. orders SIVU du plan d'eau de la Vallée du Lot, otherwise known as SIVU du pays d'accueil de la Vallée du Lot, and Hydro-Réalisations SARL jointly and severally to pay to the Commission of the European Communities the sum of EUR 83 928, together with contractual interest with effect from 31 May 1991 until discharge of the debt in full;

2. dismisses the remainder of the application;

3. orders SIVU du plan d'eau de la Vallée du Lot, otherwise known as SIVU du pays d'accueil de la Vallée du Lot, and Hydro-Réalisations SARL jointly and severally to pay the costs.

C - Repayment

17. Without referring to the Commission's application, SIVU informed it on 11 June 1997 that construction of the weir had been completed in 1994. After the environmental protection groups had abandoned their opposition, a feasibility study had been commissioned on the power station as originally envisaged. It was only when the results of this study were available that it was possible to take a decision, on 11 June 1997, finally acknowledging that the small hydro-electricity power station could not be constructed. According to SIVU, that was why the advance had not yet been repaid. SIVU announced that it would repay the EUR 83 928 immediately and requested that the Commission refrain from imposing penalties (sans pénalisation) for late reimbursement.

18. On 8 October 1998 SIVU transferred funds to the Commission in the amount of FRF 587 496 without any indication as to how this amount was to be apportioned between the principal (the advance) and the ancillary debt (the interest owed). According to the Commission's statement, the bank drew up two credit advice notes: one on 23 October 1998 in the amount of FRF 554 889.97 (the equivalent of EUR 83 928) and another on 30 October 1998 in the amount of FRF 32 606.03 (equivalent to EUR 4 973.81).

19. By letter of 9 June 1999, the day before judgment by default was given, SIVU's legal representative informed the Commission and the Court of Justice of the payment of 8 October 1998.

20. By letter of 9 July 1999, received at the Court Registry on 12 July 1999, SIVU lodged an application to have the judgment by default served on it on 15 June 1999 set aside.

III - Arguments and forms of order sought

21. As regards the principal, SIVU claims that the debt was repaid by means of the sum transferred on 8 October 1998.

22. As regards the contractual interest, it claims that work on the project was not discontinued until 11 June 1997. It was only then that the results of the feasibility study had become available, which SIVU had commissioned after environmental protection groups had abandoned their opposition. SIVU claims that the Commission had been informed of this by letter of 11 June 1997. Contractual interest is therefore owed only from 11 June 1997 to 8 October 1998, the date on which the principal was repaid.

23. In the alternative, SIVU argues that contractual interest is owed from 31 May 1991, the day on which work was discontinued within the meaning of Clause 9 of the contract.

24. In application of Article 1153 of the Code Civil statutory default interest is not owed, SIVU maintains, as that provision prohibits the cumulation of contractual and statutory interest.

25. SIVU requests that the Court

(1) declare its application to have the judgment by default set aside admissible and well founded and therefore:

- set aside the judgment by default of 10 June 1999;

- dismiss the Commission's application of 2 May 1997;

- find that the amount of FRF 587 496 was repaid on 8 October 1998;

(2) as regards the interest,

- find that interest is owed solely from 11 June 1997 to 8 October 1998;

- in the alternative: find that interest is owed only from 31 May 1991 to 8 October 1998;

(3) order the Commission to pay the costs.

26. The Commission requests that the Court:

(1) dismiss the application to have the judgment by default set aside;

(2) order SIVU to pay the costs.

27. As grounds, the Commission alleges that SIVU was too late in informing the Commission and the Court that it had effected the payments, as it did so only on the day before judgment by default was given.

28. In addition, SIVU's payments have no bearing on the substance of the judgment: their only significance lies in regard to its enforcement. The amount remitted by SIVU did not suffice to repay both the principal and the interest owed. Following repayment of the principal (EUR 83 928), the Commission had on 23 October 1998 an outstanding claim to EUR 40 347.64, corresponding to contractual interest accruing from 1 June 1991 to 22 October 1998. The EUR 4 973.81 remitted by SIVU on 30 October 1998 covered only part of the amount owed.

29. As regards the contractual interest, the Commission considers that it was due as from 31 May 1991. SIVU relied on the date on which work was definitively discontinued, which it maintains was 11 June 1997. The contract stipulates, however, that the date is to be that on which, using only objective criteria, work can be said to have been completed or discontinued. The Commission maintains that that was 31 May 1991.

30. The Commission considers SIVU's view that interest is owed solely from 11 June 1997 to be incompatible with the wording of Clause 9 of the contract. The contract draws a distinction between the time when the contract was terminated due to a contracting party establishing that the contract had become deprived of its purpose, and the time when work was discontinued. To equiparate the time of the contract's termination or the definitive abandonment of the project with the time at which work was discontinued would be incompatible with the aim and purpose of this clause.

31. By letter of 19 July 1999 the Commission demanded that SIVU pay the outstanding amount of EUR 48 748.56 (EUR 136 845.78 minus payments already made in the amount of EUR 88 901.81, equal to EUR 47 943.97, together with contractual interest accruing from 30 October 1998 to 1 July 1999).

32. As regards the statutory default interest which it had initially claimed, the Commission merely refers to the statements in paragraph 30 of the judgment by default.

33. In response to a request made by the Court, the Commission explained further that the payments made by SIVU were first applied to the debt resulting from the interest and then to that representing the principal. Following SIVU's payment, the Commission had on 23 October 1998 an outstanding principal claim in the amount of EUR 40 347.64, which, according to the second credit advice, was reduced on 30 October 1998 to EUR 35 373.83. The Commission maintains that because the principal had not been fully repaid interest continued to accrue after this date.

34. The reference rate of interest used by the Commission in order to calculate the interest owed is, according to statements made by it, that published in the Official Journal on the first working day of every month. Until 1993 this was the rate used by the European Monetary Cooperation Fund for its transactions in ecus; thereafter, to May 1998, it was the rate used by the European Monetary Institute and subsequently it was that used by the European Central Bank for its transactions in ecus. Since the introduction of the euro on 1 January 1999 the interest rate has been that of the European Central Bank, at first that for its pension-fund operations and from April 2000 the rate used for its major refinancing transactions.

IV - Opinion

A - Admissibility

35. As can be seen from the case-file, the judgment by default was served on SIVU on 15 June 1999. The application to set it aside which was received at the Court on 12 July 1999 was therefore lodged in due time. Since the remaining procedural requirements have been met, the application is admissible.

B - Merits

(1) Repayment of the advance

36. SIVU and Hydro decided not to carry out the project. The Commission therefore correctly concluded that to continue the work programme was pointless and thus lawfully terminated the contract. Under Clause 9.3 of the contract the Commission is thus entitled in principle to reimbursement of the sum advanced in the amount of EUR 83 928 together with interest. Further details are to be found in my Opinion of 28 January 1999 in this case.

37. However, the issue raised by SIVU's application to have the judgment by default set aside is to what extent the Commission's claim to reimbursement has been satisfied by the payment made on 8 October 1998.

38. SIVU paid the Commission FRF 587 496. According to information provided by the Commission, that sum was credited to it in two steps: on 23 October 1998 in the amount of EUR 83 928, and on 30 October 1998 in the amount of EUR 4 973.81. SIVU considers that this payment satisfied the Commission's claim to reimbursement. The Commission disagrees because it considers that the amount transferred is insufficient to cover both the principal and the interest.

39. The Commission's claim to reimbursement, as established in the judgment by default, can be considered to be satisfied if SIVU has completely repaid the debt accruing from both the advance and the interest. The advance amounted to EUR 83 928. In order to establish whether the payment of 8 October 1998 satisfied the Commission's claim, it is thus necessary to calculate the interest due at the time the Commission received the payment.

(2) Calculation of the interest

(a) Date on which interest became payable

40. Under Clause 9.3 of the contract, interest begins to accrue on the amount owed as soon as work is completed or discontinued (date de fin ou d'arrêt des travaux). SIVU holds the view that work was discontinued on 11 June 1997, once the results of the study became available. In its application, the Commission initially considered 17 January 1991 to be the relevant date. However, in its observations on the application to have the judgment by default set aside it follows the judgment and accepts that work was discontinued on 31 May 1991.

41. Article 1156 of the Code Civil provides that when interpreting contracts the intention of the contracting parties must be determined. However, one cannot assume that the parties intended to have the question of when work was discontinued, which is essential for calculating the interest, determined on the basis of criteria that neither party was or could be aware of. Consequently, in determining the point in time at which work was completed or discontinued, the view of one party cannot be decisive. The relevant point in time must be determined rather on the basis of objective criteria and factors which were or could have been known to both parties.

42. The first such objective factor requiring consideration is SIVU's letter of 6 November 1992 (see point 11 above), in which it informed the Commission that the power station, the construction of which was the object of the contract, would not be built, and offered to repay the advance. It was at this point that the Commission could no longer assume that work would continue. In particular, there is no indication in the documents presented to the Court that between then and the date of its letter, 11 June 1997 (see point 17 above), SIVU informed the Commission that work on the project was none the less being continued. It would run contrary to Article 1134(3) of the Code Civil, which provides that contractual obligations are to be fulfilled in good faith, if one were to allow SIVU to rely on its letter of 11 June 1997. In order to obtain reimbursement of the advance, the Commission sent SIVU notices requesting payment on 8 December 1992, 27 February 1994, 1 June 1994, 31 October 1994 and 12 October 1995, referring to SIVU's letter of 6 November 1992 and the Commission's notice of termination of 18 November 1992. As a result, the Commission clearly assumed that the work agreed upon in the contract had, in accordance with the communication of 6 November 1992, been definitively discontinued. This assumption was never challenged by SIVU. It would run contrary to the principle of good faith if one were now to rely on the communication of 11 June 1997.

43. However, the Commission itself mentioned an earlier date in its application, namely 31 May 1991. It stated that up to that date - after evaluation of the reports submitted by SIVU in fulfilment of its contractual obligations - work was being carried out on the project. That was confirmed in the Commission's observations on the present application to have the judgment by default set aside. One may therefore assume that both parties were in a position to recognise that work had been discontinued on 31 May 1991. Hence it is from that date that contractual interest became payable.

(b) Applicable interest rate

44. The contract stipulates the interest rate by referring to the rate used by the European Monetary Cooperation Fund for its transactions in ecus, published on the first working day of every month. However the Fund no longer exists and the reference interest rate contractually agreed is no longer published. The question is therefore which interest rate is applicable as regards the debt to be repaid.

45. The Commission holds the view that it is the one it publishes in the Official Journal on the first working day of every month. Up to 1993, this was the rate used by the European Monetary Cooperation Fund for its transactions in ecus. Thereafter and to May 1998 it was that of the European Monetary Institute, and subsequently it was the rate the European Central Bank used for its operations in ecus. Since the introduction of the euro on 1 January 1999 the applicable rate of interest, according to the Commission, is that used by the European Central Bank for its pension-fund operations and thereafter the rate used for its major refinancing transactions. The Commission nevertheless admits that there is no particular legal basis governing the replacement of the applicable reference interest rates.

46. The rate of interest initially agreed upon no longer exists and the contract itself does not stipulate what rate of interest should be applicable in its place. As I have already stated, Article 1156 of the Code Civil provides that, when interpreting agreements, the common intention of both parties at the time of the contract's conclusion must be determined. From the rule in Clause 9.4 of the contract, one can at least infer that it was the will of the parties to agree upon a rate of interest which was applicable for transactions carried out in ecus. It may also be inferred that the rate was not to be one established by a private lending institution, but was an interest rate established within the framework of monetary policy cooperation between Member States. Finally, one can infer from the agreement that the applicable interest rate should be one that is published.

47. The interpretation put forward by the Commission satisfies these requirements. The different interest rates were and are those applied to transactions carried out in ecus and - since its replacement by the euro - to those transactions carried out in euros. They were and are, in any event, established by the institution responsible for carrying out monetary policy in the Community. The different interest rates were and are published in the Official Journal of the European Communities on the first working day of every month.

48. Also of importance is Article 1160 of the Code Civil, which provides that, where necessary, contracts may be supplemented by clauses which reflect standard business practice, even if they are not explicitly mentioned in the agreement. The Commission has specified interest rates which are those it normally uses when entering into agreements. This fact also speaks in favour of using the interest rate relied on by the Commission for the period since the contractually agreed reference rate had ceased to exist.

49. SIVU did not object to the manner in which the Commission proceeded. The institutions named by the Commission all represent entities separate from the Commission and the latter has no influence on the determination of the applicable interest rate. Furthermore, it is not apparent that SIVU has suffered any disadvantage from having the applicable reference rate changed. The way the Commission proceeded therefore seems to give no grounds for complaint. Hence the applicable rate of interest is until 1993 that used by the European Monetary Cooperation Fund for its transactions in ecus. Thereafter, to May 1998, it is the rate used by the European Monetary Institute and subsequently it is that used by the European Central Bank for its transactions in ecus. Since the introduction of the euro on 1 January 1999, the interest rate is that used by the European Central Bank, at first that used for its pension-fund operations and then that used for its major refinancing transactions.

50. On the basis of these reference rates the Commission calculated, until SIVU's payment, a debt of interest in the amount of EUR 40 347.64. SIVU has also failed to object to this calculation. Consequently one may assume that prior to the payment of 23 October 1998, a debt of interest in the amount of EUR 40 347.64 had accrued.

51. Contrary to the view held by SIVU, the decisive date for calculating the amount paid is that when it was credited to the Commission, that is, 23 October 1998 and not 8 October 1998. SIVU claimed that it had transferred the amount owed and submitted, as proof, an internal payment order which had been issued on 8 October 1998. Pursuant to Article 1238 of the Code Civil as it has come to be interpreted by the French courts, a money transfer as payment takes effect only when the amount has been credited to the beneficiary. In accordance with the uncontested statement of the Commission, the sum of FRF 587 496 transferred was partially credited on 23 October 1998 in the amount of EUR 83 928 and then partially credited again on 30 October 1998 in the amount of EUR 4 973.81. Therefore it is these dates that are to be taken as the point in time at which SIVU's payment occurred and consequently it is these dates which are decisive in calculating the interest accumulated.

(3) Statutory interest

52. As regards statutory interest, the judgment by default found that Article 1153 of the Code Civil does not allow statutory interest to be charged together with contractual interest. The Commission has never contested this. Nor are any other circumstances apparent which would justify coming to a different conclusion. Thus in so far as the Commission requested payment of statutory interest together with contractual interest, the judgment by default must be upheld.

(4) Aggregate amount of debt at the time of payment

53. We can therefore establish at this stage that on 23 October 1998 EUR 83 928 was owed as a result of the advance and EUR 40 347.64 was owed due to interest. Hence the debt amounted to EUR 124 275.64.

(5) Legal consequences of the payment

54. Towards the debt of EUR 124 275.64 SIVU has paid a total of EUR 88 901.81. This sum was therefore not enough to completely discharge its debt. Hence the amount to which the Commission's claim has been satisfied depends on which of the two debts SIVU made payment for.

55. The payment order which SIVU submitted with its application to have the judgment set aside contains only a general reference to reimbursement of the EEC subsidy (remboursement subvention CEE). A breakdown of the sum was not supplied.

56. In SIVU's letter of 11 June 1997 announcing its intention to repay the advance the amount of EUR 83 928 was mentioned. That might indicate that SIVU intended to make payment in respect of the principal in October 1998. Furthermore, in the same letter SIVU requested that the Commission refrain from imposing penalties (sans pénalisation). This could also be considered as an indication that SIVU intended to make payment, at least primarily, towards the principal, since penalties such as interest are precisely what SIVU had hoped to avoid.

57. Nevertheless, such an interpretation of SIVU's payment must comply with the requirements of Article 1254 of the Code Civil, which states that a payment must, as a rule, be deducted first from the debt of interest and then from the principal owed, unless the creditor agrees otherwise. The question thus remains as to whether the Commission consented to have SIVU's payment applied towards the principal.

58. One might infer explicit consent from the Commission's written observations of 24 November 1999, in which it stated that on 23 October 1998, after taking into consideration SIVU's repayment of the principal (EUR 83 928), it had an outstanding claim against SIVU of EUR 40 347.64, corresponding to the total interest accrued between 1 June 1991 and 22 October 1998. The amount of EUR 4 973.81 transferred represented merely part of the contractual interest which the Commission was owed at the time.

59. However, this statement contradicts the assertions made in the earlier written observations submitted on 13 October 1999, as well as the Commission's letter of 19 July 1999, referred to in paragraph 15 of those written observations. In that letter the Commission calculated an outstanding sum of EUR 47 943.97, which has since been corrected to EUR 40 347.64, but on which further interest is demanded for the period from 30 October 1998 to 1 July 1999. However, pursuant to Article 1154 of the Code Civil interest can, as a rule, only be levied on the principal and not on interest, in so far as no other contractual arrangement has been agreed upon or a court has not ruled otherwise. Those exceptional circumstances not being present here the Commission, if it wishes to demand additional interest, must first apply SIVU's payment to the interest due and only then may it apply to the principal.

60. In its answer of 18 July 2000 to the Court's question regarding that inconsistency, the Commission reiterated its original position that the payment had first been applied to the debt of interest and only then to the principal. It explained the inconsistency as being due to a wrong entry on the part of the Commission's accountant.

61. The Commission's statement indicates that SIVU's payment was at least de facto applied to the principal and only the remaining funds were applied to the debt of interest. However this seems to reflect internal problems at the Commission rather than representing an expression of intent. Furthermore, one must consider that the sole explicit expression of intent on which one could rely here was made for the first time in the written observations submitted on 24 November 1999, more than a year after the entry had been made. Consequently this expression of intent cannot be the basis of the entry. Nor can one identify an unambiguous intention on the part of the Commission to apply the payment to the principal, due to its conflicting statements. As a result, the statutory rule of Article 1254 is applicable, pursuant to which partial payments must, as a rule, first be applied to the debt of interest.

62. It is possible to construe the accountant's entry as implicitly representing an act of consent, however. In favour of such an interpretation is the fact that the sums were identical. The amount of EUR 83 928 credited by the bank on 23 October 1998 and entered by the accountant corresponds exactly to the amount of the advance made.

63. Against that interpretation of the Commission's behaviour, however, is the fact that the entry was made because, according to the Commission, at that time only one notice requesting payment in the amount of [EUR] 83 928 + interest existed and the amount of the debt of interest had not yet been specified. When one considers that all notices requesting payment issued by the Commission since 1992 included the clause + interest and that both Article 1254 of the Code Civil and Article 96 of Regulation No 3418/93, to which the Commission's accountant is subject, require that payment first be applied to the interest and thereafter to the principal, it is difficult to assume that the entry constituted an implicit act of consent to apply payment to the principal.

64. On the basis of these considerations, one must assume that the Commission did not consent, either explicitly or implicitly, to SIVU's payment first being applied to the principal. The payment made in the amount of FRF 587 496 was therefore to be applied first to the interest and thereafter to the principal. Hence the Commission's claim to reimbursement is satisfied only to the extent that the funds transferred exceeded the amount of interest owed.

65. As a result, the payment of EUR 83 928 first served to repay the interest on the debt of EUR 124 275.64 as it stood on 23 October 1998. An outstanding principal debt therefore remains in the amount of EUR 40 347.64 on which, under Clause 9 of the contract, interest will continue to accrue.

66. On 30 October 1998 a second credit advice was issued in the amount of EUR 4 973.81. In accordance with the above, this amount was also to be applied first to the interest and thereafter to the principal. At the rate provided by the Commission, which has not been challenged by SIVU, the interest levied on the debt as it stood in October 1998 was 4%. Consequently on 30 October 1998 the debt of interest was in the amount of EUR 31.38. As a result of the payment, the principal was reduced to EUR 35 405.21. Hence, following both payments, a debt of EUR 35 405.21 remained outstanding.

(6) Summary

67. To summarise, following the payment of FRF 587 496, an outstanding debt remains of EUR 35 405.21. It is in this amount that the Commission's claim to reimbursement remains unsatisfied. Under Clause 9 of the contract, the amount owed is subject to interest until it is repaid in full.

68. In accordance with the contract, SIVU and Hydro are jointly and severally liable for fulfilling the contractual obligations. As a result, they are jointly and severally to be ordered to repay the outstanding debt.

V - Costs

69. Pursuant to Article 69(3) of the Rules of Procedure the Court of Justice may, where each party succeeds on some and fails on other heads, order that the parties are to pay their own costs. SIVU's application to set aside the judgment by default is to be dismissed to the extent that an outstanding debt still remains. The Commission also has been unsuccessful in its request that the application be dismissed. Both parties have thus succeeded on some and failed on other heads. In consideration of the fact that the applicant only informed the Court immediately before the judgment by default was announced that it had effected payment nine months before, as well as the fact that the Commission failed entirely to inform the Court that it had received the funds, one may conclude that both parties are responsible for the present proceedings. It would thus be appropriate to let each party pay its own costs.

VI - Conclusion

70. On those grounds, I propose that the Court:

(1) order SIVU du plan d'eau de la Vallée du Lot, formerly SIVU du pays d'accueil de la Vallée du Lot, and Hydro-Réalisations SARL jointly and severally to pay the Commission of the European Communities the sum of EUR 35 405.21, together with contractual interest with effect from 30 October 1998 until discharge of the debt in full;

(2) dismiss the remainder of the application;

(3) order each party to pay its own costs.