Contents
Judgment of the General Court (Third Chamber)19 September 2012note(Arbitration clause — Grant contract concerning a local development action consisting in the performance of work for the preparation and launching of a European Local Enterprise Centre in Millau (France) — Recovery of part of the sums paid — Admissibility of an action against a French company removed from the Commercial and Companies Register — Application of French law — Administrative contract — Recovery of undue payments — Limitation period — Enforceability of an arbitration clause — Take-over of debt — Ancillary principle — Stipulation for third parties)In Cases T-168/10 and T-572/10,European Commission, represented by S. Petrova, acting as Agent, assisted by E. Bouttier, lawyer,vSociété d’économie mixte d’équipement de l’Aveyron (SEMEA), established in Millau (France), represented by L. Hincker and F. Bleykasten, lawyers,Commune de Millau (France), represented by L. Hincker and F. Bleykasten, lawyers,THE GENERAL COURT (Third Chamber),composed of O. Czúcz (Rapporteur), President, I. Labucka and D. Gratsias, Judges,Registrar: C. Kristensen, Administrator,having regard to the written procedure and further to the hearings on 29 February 2012,gives the following
Judgment
Background to the dispute
1On 6 July 1990, the European Economic Community, represented by the Commission of the European Communities, concluded a grant contract with the Société d’économie mixte d’équipement de l’Aveyron (the Aveyron semi-public installations company) (SEMEA), which was 50% owned by the Commune de Millau (Municipality of Millau) (France).
2That contract concerned a local development action consisting in the performance of work for the preparation and launching of a Centre européen d’entreprise locale (European Local Enterprise Centre) in Millau (‘the contract’).
3Article 2 of the contract stipulated:‘The work is to be carried out during a period of 18 months from the date of signature of this contract.’
4Under Article 4 of the contract, SEMEA undertook to perform various services and to account for them to the Commission by submitting periodical reports, the Commission for its part undertaking to contribute financially to the performance of those works up to a maximum of ECU 135000, not exceeding 50% of the justified costs of the works.
5Article 6 of the contract provided:‘This contract is subject to French law.’
6Article 10 of the contract was worded as follows:‘In the event that credit facilities are unavailable or are insufficient for the performance of this contract, the Commission reserves the right to cancel this contract without any legal procedure or to adapt the contract to the new credit availability.’
7Article 9(1) of the General Terms of the contract stipulated:‘In the event of non-fulfilment by the contractor of one of the obligations arising under the contract and irrespective of the consequences provided by the law applicable to the contract, the contract may be automatically rescinded or cancelled by the Commission without the need to carry out any legal procedure, after the contractor has been sent a letter of formal notice, by registered post, and has failed to fulfil the obligation within a period of one month.’
8Article 10 of the General Terms of the contract provided:‘In the absence of an amicable settlement, the Court of Justice of the European Communities has exclusive jurisdiction to rule on any dispute concerning the contract and arising between the contracting parties.’
9By letter of 16 May 1991, SEMEA requested of the Commission that the contract be performed by another structure, the Centre européen d’entreprise et d’innovation (European Centre for Enterprise and Innovation) (‘CEI 12’), which the Commission accepted by letter of 2 July 1991, specifying that that agreement did not exempt SEMEA from its obligations. By letter of 22 October 1991, SEMEA confirmed that it would guarantee the proper performance of the services stipulated in the contract.
10During the months of June and July 1992, the Commission’s services carried out a check on the state of progress of the works, following which it was found that the total eligible expenditure was ECU 187977 and thus that the Commission’s contribution was to be set at 50% of that amount, that is, at ECU 93988.
11Since SEMEA had already received ECU 135000 in respect of the contract, the Commission claimed recovery from it of ECU 41012 (‘the disputed debt’) by letter of 27 April 1993. SEMEA did not respond to that request.
12On 17 February 1997, the Extraordinary General Meeting of Shareholders of SEMEA decided to put SEMEA into voluntary liquidation from 31 March 1997 and to appoint a liquidator.
13By registered letter with acknowledgment of receipt of 18 November 2005, the Commission again asked SEMEA for payment of the disputed debt.
14On 11 January 2006, the Commission sent a debit note for EUR 41 012 to SEMEA.
15Replying by letter of 31 January 2006, SEMEA’s liquidator stated that his accounts did not allow for payment of such a sum, that he was required to file the winding-up balance and that the disputed debt had to be regarded as time-barred under French law, which did not allow recovery of sums which had not been claimed within the last 4 years, and the Commission’s last claim dated from 27 April 1993, over 12 years previously.
16By registered letter with acknowledgment of receipt of 16 February 2006, the Commission formally applied for the disputed debt to be taken into account in the liquidation operations and to be accepted as a liability.
17By letter of 20 September 2006, SEMEA informed the Commission that the Extraordinary General Meeting of the company had decided to postpone submitting the winding-up balance and referred to a CEI 12 report indicating that the Commission had finally abandoned its claim for payment of the disputed debt.
18By letter of 29 November 2006, the Commission sent, through its lawyer, a letter of formal notice to SEMEA to reimburse the disputed debt. In that letter, the Commission stated that it had never intended to waive that debt.
19By letter of 30 January 2007, the Commission’s lawyer sent a further letter of formal notice to pay the disputed debt and inferred from SEMEA’s failure to act that it was in a state of insolvency.
20By letter of 5 February 2007, SEMEA stated that it was not in a state of insolvency.
21By letter of 12 February 2007, SEMEA sent the copy of the CEI 12 memorandum stating that the Commission had abandoned its claim for payment of the disputed debt.
22On 26 October 2007, the Commission sent, by process-server, a formal demand for payment to the address for service of SEMEA’s liquidator.
23On 10 December 2007, the Commission sent a formal demand for payment to the registered office of SEMEA’s liquidator, by process-server.
24By letter of 14 December 2007, addressed to the process-server who had delivered the formal demand for payment, SEMEA’s liquidator repeated his request for information concerning the Commission’s decision to waive payment of the disputed debt. In his letter, he claimed that the new shareholders and the liquidator were unaware of the undertakings between SEMEA and CEI 12.
25By letter of 7 January 2008, the Commission’s lawyer contested the claims made by SEMEA’s liquidator, again called on him to settle the disputed debt and sent a copy of that letter to the procureur de la République (Public Prosecutor) in order that the conduct of SEMEA’s liquidator might be assessed, having regard inter alia to the offence of fraud.
26In response to that letter of formal notice, SEMEA’s liquidator suggested that the disputed debt might be time-barred. In that letter, he pointed out that, at the beginning of 2007, he had undertaken, during a discussion with the Commission’s lawyer, to pay the disputed debt as soon as he had received answers to the questions concerning its admissibility.
27By letter of 21 February 2008, the Commission’s lawyer sent a final letter of formal notice to SEMEA to pay the disputed debt.
28On 21 November 2008, the Extraordinary General Meeting of SEMEA took formal note of the decision of the Commune de Millau, its main shareholder, to take over its assets and liabilities and decided to pay the sum of EUR 82 719,76, representing SEMEA’s available liquidity, to the Commune de Millau. According to the liquidation report submitted by the liquidator, who referred to the disputed debt, all the mandated operations were regarded as settled.
29On 9 December 2008, SEMEA’s liquidator concluded the liquidation process and had SEMEA removed from the Commercial and Companies Register.
30On 18 December 2008, the municipal council of the Commune de Millau took over SEMEA’s assets and liabilities. The dispute with the European Commission was expressly stated as a liability.
31On 12 February 2010, at the Commission’s request, the Rodez Commercial Court appointed an ad hoc agent to represent SEMEA.
Procedure before the General Court and forms of order sought by the parties
A –In Case T-168/10
32By application lodged at the Court Registry on 15 April 2010, the Commission claimed that the Court should:— order SEMEA, in the person of its ad hoc agent, to pay the applicant the principal sum of EUR 41 012, plus interest at the annual statutory rate applied in France from 10 March 1992 or, in the alternative, from 27 April 1993;— order the capitalisation of interest;— order SEMEA to pay the sum of EUR 5 000 in respect of wrongful obstruction of legal process;— order SEMEA to pay the costs.
33That application was directed at SEMEA ‘in the person of its ad hoc agent’, Mr C.G. As he was not the ad hoc agent, but since the President of the Rodez Commercial Court had appointed the ad hoc agent, on 4 May 2010 the Registry notified the Commission of the failure to serve the application on SEMEA and set a time limit for communication of a new address for service. The Commission responded to that request by indicating the name and address of SEMEA’s ad hoc agent. The application was served at that address.
34In its plea of inadmissibility lodged at the Court Registry on 26 July 2010, SEMEA requested that the Court:— declare the application inadmissible;— order the Commission to pay the costs.
35In its observations on the plea of inadmissibility lodged at the Court Registry on 30 August 2010, the Commission requested that the Court:— reject the grounds of inadmissibility put forward by SEMEA and declare the application admissible;— order the suspension of the proceedings pending the initiation of proceedings against the Commune de Millau;— order SEMEA to pay the costs.
36In connection with the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of the General Court, the Commission and SEMEA replied, by letters lodged at the Court Registry on 8 and 9 November 2010 respectively, to questions put by the Court and to its request for production of documents.
37By order of the President of the Third Chamber of the General Court of 29 November 2010, the proceedings in Case T-168/10 were suspended until 31 January 2011.
38By order of the General Court (Third Chamber) of 24 May 2011, the decision on the plea of inadmissibility was reserved for final judgment.
39In its defence, lodged at the Court Registry on 8 July 2011, SEMEA claimed, in essence, that the Court should:— dismiss the Commission’s application;— in the alternative, if the Court allows the Commission’s claim for reimbursement:— — order the Commission to pay SEMEA the sum of EUR 41 012 plus an amount corresponding to the amount of interest and incidentals which the Court grants the Commission in its judgment;— dismiss the Commission’s application as regards the interest and its capitalisation for the period prior to 18 November 2005;— dismiss all other claims of the Commission;— in any event, order the Commission to bear the costs.
40Acting upon a report of the Judge-Rapporteur, the General Court (Third Chamber) decided to open the oral procedure. The parties presented oral argument and replied to the Court’s oral questions at the hearing on 29 February 2012.
B –In Case T-572/10
41Having learnt during the proceedings in Case T-168/10 that the Commune de Millau had decided to take over all SEMEA’s assets and liabilities, the Commission brought an action against the Commune de Millau by application lodged at the Court Registry on 21 December 2010.
42The Commission claimed, in essence, that the Court should:— order the Commune de Millau to pay to the applicant, jointly and severally with SEMEA, the principal sum of EUR 41 012, plus interest outstanding since 10 March 1992 or, in the alternative, from 27 April 1993;— order the capitalisation of interest;— order the Commune de Millau to pay, jointly and severally with SEMEA, the sum of EUR 5 000 in respect of SEMEA’s wrongful obstruction of legal process;— Order the Commune de Millau to pay the costs jointly and severally with SEMEA;— order the joining of Cases T-168/10 and T-572/10.
43For its part, the Commune de Millau claimed that the Court should:— declare that it does not have jurisdiction and refer the Commission to the competent French courts;— in the alternative, dismiss the Commission’s application as unfounded;— If the Court allows the Commission’s claim for reimbursement:— — order the Commission to pay to the Commune the sum of EUR 41 012 plus an amount corresponding to the amount of interest and incidentals which the Court grants the Commission in its judgment;— dismiss the Commission’s application as regards the interest and its capitalisation for the period prior to 18 November 2005;— dismiss all other claims of the Commission;— in any event, order the Commission to bear the costs.
44Acting upon a report of the Judge-Rapporteur, the General Court (Third Chamber) decided to open the oral procedure. The parties presented oral argument and replied to the Court’s oral questions at the hearing on 29 February 2012.
Law
45The parties having been heard, Cases T-168/10 and T-572/10 are joined for the purposes of this judgment, on account of the connection between them.
A –Case T-168/10
46The subject-matter of Case T-168/10 is the Commission’s application against SEMEA and SEMEA’s counterclaim.
1.The Commission’s application
a)Admissibility of the application
47Under the combined provisions of Articles 272 and the first subparagraph of Article 256(1) TFEU, the General Court has jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the European Union, whether that contract be governed by public or private law.
48According to Article 10 of the General Terms of the contract, the Court of Justice of the European Union has exclusive jurisdiction to rule on any dispute concerning the contract and arising between the contracting parties.
49Under Article 272 TFEU, the first subparagraph of Article 256(1) TFEU and Article 10 of the General Terms of the contract, the General Court is therefore competent to rule on the Commission’s application. Article 10 of the General Terms is sufficiently broad to cover all the Commission’s claims concerning the contract, both those based directly on the stipulations of the contract and those based on subsidiary provisions of the applicable law concerning the contract, such as the provisions governing the recovery of sums overpaid.
50In connection with its plea of inadmissibility, SEMEA has put forward two grounds, relating to the removal of SEMEA from the Commercial and Companies Register and to the representation of SEMEA. Only the first ground will be examined in this judgment since SEMEA withdrew the second ground at the hearing.
51SEMEA’s representative considers that its legal personality was extinguished following the clearance of its accounts on 21 November 2008 and its removal from the Commercial and Companies Register on 9 December 2008. Accordingly, the Commission’s action is inadmissible.
52According to the case-law of the Court of Justice, an action against a company is inadmissible if, when the action is brought, that company had neither legal capacity nor standing to be a party to legal proceedings. The applicable law in that connection is that governing the incorporation of the company in question (Case C-294/02 Commission v AMI Semiconductor Belgium and Others [2005] ECR I-2175, paragraph 60).
53In the present case, it should be pointed out that SEMEA was constituted in the form of a local semi-public company governed by French law, and more specifically by Article L 1522-1 of the Code général des collectivités territoriales (Local and Regional Collectivity Code), which provides that local semi-public companies have the legal form of public limited companies, which are governed by Book II of the Commercial Code. It is therefore in the light of that law that it is necessary to examine whether SEMEA, when the action was brought, had legal capacity and standing to be a party to legal proceedings.
54In French law, although Article L 237-2(2) of the Commercial Code, which is applicable to commercial companies such as SEMEA, provides that the legal personality of a company continues to exist only for the purposes of the liquidation and only until that is terminated, French case-law has recognised, under certain conditions, that it is possible for legal personality to continue to exist even after termination of the liquidation process or the publication of the notice of termination.
55More specifically, the Court of Cassation has held that the legal personality of a French company continues to exist for as long as the company rights and obligations remain unsettled (Cass. com., 12 April 1983, No 81-14055, Bull. com., No 113; Cass. 3e civ., 31 May 2000, No 98-19435, Bull. 2000, III, No 120, p. 80). Therefore, the personality of a company which has been dissolved continues to exist, if it was still a party in ongoing proceedings (Cass. Com., 26 January 1993, No 91-11285, Bull. civ. 1193, IV, No 33) or where a third party claims from the company a debt originating in the business activity (Cass. Com., 2 May 1985, No 83-17409, Bull. civ. 1985, IV, No 139). It is therefore for the creditor who considers that he has been wronged and who seeks to have the liquidation reopened to request the court to appoint an ad hoc agent to represent the company in the action brought against it.
56In the present case, it must be stated that, by letters of 27 April 1993, 18 November 2005, 16 February 2006, 29 November 2006, 30 January 2007, 26 October 2007, 10 December 2007, 7 January 2008 and 21 February 2008, the Commission asked SEMEA to pay the disputed debts (see paragraphs 11 to 27 above). Consequently, the Commission approached SEMEA repeatedly during the liquidation process, and even before it. However, on 9 December 2008, the liquidation was terminated and SEMEA was removed from the Commercial and Companies Register, without a favourable outcome to the requests for reimbursement made by the Commission and therefore without the dispute with the Commission being settled. Therefore, SEMEA’s rights and obligations cannot be regarded as settled.
57Consequently, SEMEA’s legal personality continues to exist for the purposes of these proceedings. The plea of inadmissibility relating to its removal from the Commercial and Companies Register must therefore be rejected.
58The Commission’s action against SEMEA is therefore admissible.
b)The substance of the action
59By its action, the Commission is asking the Court to order SEMEA to reimburse the principal sum of EUR 41 012, and to pay interest and also the sum of EUR 5 000 as compensation for the damage suffered.
The claim for reimbursement of the principal sum
60In its first head of claim, the Commission asks, first, that SEMEA be ordered to reimburse the sum of EUR 41 012. It considers that that sum is owed to it.
–The applicable legal system
61The system applicable should first be determined.
62It is apparent from Article 6 of the contract that the contract is subject to French law. French law provides different legal systems for contracts governed by civil law, on the one hand and contracts governed by administrative law, on the other. Since Articles 272 TFEU and 340 TFEU do not preclude a contract with the Union being subject to a public law system (see, to that effect, Case C-167/99 Parliament v SERS and Ville de Strasbourg [2003] ECR I-3269, paragraph 113), it is necessary, first, to determine whether the contract at issue is private or administrative, in order to determine the legal regime applicable in this case.
63The case-law of the Tribunal des conflits (Court of Arbitration) and of the French Conseil d’État makes the administrative nature of a contract conditional, as a general rule, on the fulfilment of two conditions, one organic and the other substantive. Without prejudice to the allocation of legal competences, a contract is administrative if at least one of the parties is a public body and if it either contains clauses overriding ordinary law (Conseil d’État, 31 July 1912, No 30701, Rec. p. 909; Tribunal des conflits, 21 May 2011, No 3228), or concerns the actual performance of the public service (Conseil d’État, 20 April 1956, No 98637, Rec. p. 167, and 20 April 1956, No 33961, Rec. p. 168; Tribunal des conflits, 29 December 2004, No 3437), or links the co-contractor or the administration to that performance.
64An overriding clause is one which confers rights on the public body and imposes obligations on the co-contractor which are unrelated, owing to their nature, to those which may be agreed by anyone within the framework of civil and commercial law (Conseil d’État, 20 October 1950, Rec. p. 505; Tribunal des conflits, 15 November 1999, No 03144). On that basis, clauses are overriding if they cannot be included in private law contracts, because they reveal the exercise of public authority powers.
65In the present case, the contract at issue was concluded between the Community, which constitutes, according to the case-law of the Court of Justice, a person governed by public law within the meaning of French law (see, to that effect, Parliament v SERS and Ville de Strasbourg, paragraph 62 above, paragraphs 2 and 113), and SEMEA, a person governed by French private law.
66Furthermore, under French administrative law, any act aimed at executing the actual substance of a public policy, and particularly a Union policy such as regional policy, is considered to fall within the scope of public service. It is apparent from Article 1 of the contract that the contract concerns the financial contribution to be paid by the Community under its regional policy for the performance of work for the preparation and launching of a European Local Enterprise Centre in Millau. Therefore, that contract concerns the actual performance of the public service constituted by the Community’s regional policy.
67Moreover, Article 10 of the contract provides that the contract may be unilaterally cancelled in the event that credit facilities are unavailable or insufficient. In that regard, it should be pointed out that, admittedly, a unilateral power of cancellation does not necessarily characterise the existence of a clause overriding ordinary law (Tribunal des conflits, 20 February 2008, No 3623). It all depends on the characteristics and purpose of the contract (see, to that effect, the opinion of the reporting judge Mr Da Costa in Conseil d’État, 19 November 2010, No 331837). In the present case, having regard to the purpose of the contract, mentioned in the previous paragraph, such a clause appears to be a clause overriding ordinary law in that it confers on the Commission the right to put an end to contractual relations simply for reasons of a financial nature.
68It follows that the contract is administrative in nature.
–The Union’s claim against SEMEA
69Next, it is necessary, to determine the legal basis on which the Commission may found its claim for reimbursement.
70In that context, it must be stated that, under Article 4 of the contract, the Commission’s contribution must not exceed 50% of the justified costs of the works. That article therefore governs the amount payable by the Commission. However, the contract contains no stipulation concerning the reimbursement of sums overpaid. It is therefore necessary to apply the rules on the recovery of sums overpaid.
71The provisions of Article 1376 of the Civil Code have general scope and apply both to public and private persons (Conseil d’État, 1 December 1961, Rec. p. 675). Under that rule, a person who receives in error or knowingly what is not owing to him by the administration is required to return it.
72Those conditions are satisfied in the present case. The Commission had paid a total amount of ECU 135000 to SEMEA. As is apparent from Article 4 of the contract, the Union’s contribution could not exceed 50% of the justified costs of the works. Following a check carried out in June and July 1992, the Commission had found that the total eligible expenditure was only ECU 187977. Since that finding was not contested by SEMEA, the Union’s payments to SEMEA were therefore justified only up to ECU 93988.
73Finally, under Article 2 of Council Regulation (EC) No 1103/97 of 17 June 1997 on certain provisions relating to the introduction of the euro (OJ 1997 L 162, p. 1), references to the ecu must be replaced by references to the euro at a rate of one euro to one ecu.
74SEMEA was therefore required to repay to the Union the sum overpaid of EUR 41 012.
–The objections raised by SEMEA
75SEMEA does not deny that the disputed debt has arisen, but claims that the Union can no longer invoke it. First of all, it considers that the disputed debt was extinguished owing to a waiver or cancellation on the part of the Commission. Moreover, the defendant was released from its debt when it was taken over by the Commune de Millau. Furthermore, the disputed debt is time-barred. In any event, SEMEA cannot be bound by the disputed debt because it has been removed from the Commercial and Companies Register.
76Those objections are unfounded.
77First, as regards SEMEA’s objection relating to a waiver or cancellation on the part of the Commission, it must be stated that the evidence in the file does not prove the existence of such an act. The mere fact that CEI 12’s report of February 1995 states that the Commission has finally abandoned its claim for payment of its debt is not enough to establish the existence of a waiver or cancellation on the part of the Commission. On the contrary, it is apparent from the established facts that it did not cease to request payment of the disputed debt (see inter alia paragraphs 11, 13, 14, 16, 18, 19, 22, 23, 25 and 27 above).
78Secondly, it is necessary to reject SEMEA’s argument that the fact that its debt was taken over by the Commune de Millau released SEMEA from the debt. It should be pointed out that, under Article 1165 of the Civil Code, agreements take effect only between the contracting parties and that they are in no way prejudicial to third parties and benefit them only as provided in Article 1121 of the Civil Code. Accordingly, a debtor cannot be released from his debt by an agreement concluded with a third party without the consent of the creditor (see Cass. 1re civ., 2 June 1992, No 90-17499, Bull. 1992, I, no 168, p. 115; Cass. 1re civ., 30 April 2009, No 08-11093, Bull. 2009, I, No 82). It is established that the Commission did not consent to the take-over of SEMEA’s debt by the Commune de Millau.
79Moreover, SEMEA cannot rely on Article 1844-5(3) of the Civil Code, according to which ‘[i]n the case of dissolution, this involves the universal transfer of the assets of the company to the sole partner, without there being occasion for liquidation’, since the conditions imposed by that provision are not satisfied in the present case. Indeed, it is clear from the minutes of the Extraordinary General Meeting of SEMEA of 21 November 2008 that the Commune of Millau was not the sole partner in SEMEA.
80Finally, Article L 2131-1 of the code général des collectivités territoriales, read in conjunction with Article L 2132-2 of the same code, provides that certain measures taken by the municipal authorities, which are exhaustively listed, are enforceable without further formality as soon as they have been published, displayed or notified to the persons concerned and transmitted to the State representative in the départment or to his delegate in the arrondissement. The Commune de Millau submitted for a review of legality the resolution of 18 December 2008 by which it, ‘took formal note of the liquidation of SEMEA’ and ‘took over the assets and liabilities of that company’. However, it cannot thereby have released SEMEA from its debt to the Community. Merely submitting one of its measures to a review of legality cannot authorise a local and regional collectivity to derogate from the legislative provisions referred to in paragraph 78 above, according to which, if the creditor does not consent, the take-over of the debt by a third party does not release the debtor vis-à-vis the creditor.
81Third, SEMEA claims that the disputed debt is time-barred. It is subject to the 10-year prescription under Article L 100-4 of the Commercial Code, in its version prior to the entry into force of Law No 2008-561 of 17 June 2008 amending the time bar in civil matters (JORF of 18 June 2008, p. 9856), which came into force on 19 June 2008 (‘the Law of 17 June 2008’). The Commission, on the other hand, considers that the disputed debt is subject to a 30-year prescription and therefore is not time-barred.
82In that respect, it is necessary, first of all, to examine whether the disputed debt is not subject to the 10-year prescription laid down in Article L 110-4 of the Commercial Code in its version prior to the entry into force of the Law of 17 June 2008. Under that provision, obligations deriving from trade between traders or between traders and non-traders shall be prescribed after 10 years unless they are subject to special shorter limitation periods.
83It must be recalled that the contract related to the payment of a grant, by the Commission, for the actual performance of the public service constituted by the Union’s regional policy. Therefore, the obligations deriving from it, including the disputed debt, cannot be regarded as having arisen between the Commission and SEMEA during trade. It follows that the 10-year prescription period laid down by Article L 110-4 of the Commercial Code in its version prior to the entry into force of the Law of 17 June 2008 cannot affect the disputed debt (Conseil d’État, 31 July 1992, No 69661, RTD 1993, p. 87).
84It must therefore be held that the disputed debt, which is not subject to a special period of prescription either, is not time-barred.
85At the time it became payable, at the earliest in June 1992, the month in which the Commission’s services carried out a check on the performance of the services provided for under the contract, the disputed debt was subject to the 30-year prescription period in accordance with the principles which formed the basis for Article 2262 of the Civil Code in force at that time (Conseil d’État, 8 July 2005, No 247976, Rec. Dalloz 2005, p. 3075). That 30-year period had not expired when the action was brought.
86It is true, admittedly, that the Law of 17 June 2008 repealed the provisions of the aforementioned Article 2262 of the Civil Code and introduced the new Article 2224, according to which obligations are prescribed, as a general rule, after five years from the date on which the holder of a right knew or ought to have known the facts which permitted him to exercise it.
87However, even if that five-year prescription period were applicable to the disputed debt, it should be pointed out that, under Article 2222(2) of the Civil Code, in its version subsequent to the entry into force of the Law of 17 June 2008, that new period runs from the date of entry into force of the Law of 17 June 2008, namely 19 June 2008, so that, on the date on which the action was brought, the prescription period had not expired.
88The disputed debt is therefore not time-barred.
89Fourth, it is necessary to dismiss SEMEA’s objection that the completion of its liquidation and its removal from the Commercial and Companies Register had the effect of extinguishing the disputed debt. As has been stated (see paragraph 55 above), SEMEA’s legal personality continues to exist even after its removal in so far as the disputed debt has not been settled.
90SEMEA must therefore be ordered to repay EUR 41 012.
The claim for payment of interest on overdue payments
91In its first head of claim, the Commission requests, secondly, that SEMEA be ordered to pay late-payment interest at the annual statutory rate applicable in France. It claims that the Court should order SEMEA to pay interest from 10 March 1992, in accordance with Article 1378 of the Civil Code and, in the alternative, from 27 April 1993 in accordance with Article 1153 of the Civil Code. In its second head of claim, the Commission claims that the Court should order that the interest should itself bear interest in accordance with Article 1154 of the Civil Code.
92As regards the claim for interest from 10 March 1992, that is to say, from the date of the Commission’s last payment, it should be pointed out that it is only when there is bad faith on the part of the person who has received the overpayments that the interest runs from the date of those payments. In that case, it is appropriate to take as a basis Article 1378 of the Civil Code, according to which ‘[w]here there has been bad faith on the part of the person who has received [the payment], he is required to make restitution, of the capital as well as of interest thereon or fruits thereof, from the day of payment’. In the absence of bad faith, it is the general rule stated in Article 1153 of that code which applies (Conseil d’État, 4 February 2000, No 202981, Rec. p. 31).
93In the present case, the Commission does not present evidence on which to base a finding that SEMEA acted in bad faith before the Commission’s claim for reimbursement. It is therefore necessary to reject the Commission’s principal claim that SEMEA be ordered to pay late-payment interest from 10 March 1992.
94As for the claim for interest from 27 April 1993, it is necessary to recall the words of Article 1153 of the Civil Code: ‘In obligations which are restricted to the payment of a certain sum, the damages resulting from delay in performance shall consist only in awarding interest at the statutory rate, ...’. Where it has been claimed, and whatever the date of that claim, late-payment interest owing under Article 1153 of the Civil Code runs from the day on which the claim for payment of the capital sum reaches the debtor or, if such a claim is not made before the case is referred to court, from the day of that referral (Conseil d’État, 13 December 2002, No 203429, Rec. p. 460).
95In the present case, the Commission requested payment of the disputed debt for the first time on 27 April 1993. SEMEA must therefore be ordered to pay late-payment interest at the annual statutory rate applied in France from that date.
96Finally, under Article 1154 of the Civil Code, ‘[i]nterest due on capital may produce interest, either by a judicial claim, or by a special agreement, provided that, either in the claim, or in the agreement, the interest concerned is owed at least for one whole year’. For the application of the aforementioned provisions, the capitalisation of the interest may be requested at any time before the court adjudicating on the substance. However, that request takes effect at the earliest on the date on which it is lodged and provided that, at that date, interest is owed at least for one whole year. If necessary, capitalisation is carried out again at the expiry of each subsequent annual due date without the need for a further request (Conseil d’État, 13 December 2002, paragraph 94 above).
97In the present case, the Commission requested the capitalisation of the interest in its application lodged at the Court Registry on 15 April 2010. At that date, interest was owed at least for one whole year. It is therefore necessary to order that the interest itself bear interest both at that date and at each annual due date thereafter.
The claim for compensation
98In its third head of claim, the Commission requests the Court to order SEMEA to pay the sum of EUR 5 000 as compensation for the damage suffered. It considers that, under Article 1147 of the Civil Code, that sum is owed to it for the damage suffered on account of SEMEA’s wrongful obstruction of legal process. In that regard, the Commission states that it was compelled to mobilise a large number of people to send numerous letters, letters of formal notice and other measures in order to convince SEMEA that its claims were well-founded. In contrast, SEMEA kept on putting forward unfounded and irrelevant arguments so as to escape from its commitments or to delay fulfilling them.
99In that regard, it should be pointed out that, under the first paragraph of Article 21 of the Statute of the Court of Justice — applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that Statute and Article 44(1)(c) of the Rules of Procedure of the General Court — the application must contain the subject-matter of the proceedings and a brief statement of the grounds relied on. Those details must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, for an action to be admissible, that the essential matters of law and fact relied on are stated, at least in summary form, coherently and intelligibly in the application itself.
100In the present case, the Commission merely claimed the sum of EUR 5 000, without establishing in what respect it corresponds to the sum of the different heads of damage which it claims. It is therefore necessary to reject that claim as based on insufficiently precise argument.
c)Conclusion on the Commission’s application
101It is therefore necessary to uphold the Commission’s claims against SEMEA for reimbursement of the capital sum of EUR 41 012 and to order SEMEA to pay late-payment interest at the annual statutory rate applied in France from 27 April 1993 until that capital sum has been paid in full. Moreover, it must be ordered that the late-payment interest itself shall produce interest both at 15 April 2010 and on each annual due date thereafter.
102The Commission’s action must be dismissed as to the remainder.
2.SEMEA’s counterclaim
103In case the Court upholds the Commission’s claim for reimbursement, SEMEA has lodged a counterclaim. That counterclaim is based on Article 340 TFEU and Article 41(3) of the Charter of Fundamental Rights of the European Union (OJ 2007, C 303, p. 1). It is therefore a claim based on the Union’s non-contractual liability.
104SEMEA considers that the Commission infringed its duty of sound administration and the principle of legal certainty by waiting 12 years after its claim for reimbursement of 27 April 1993 before approaching SEMEA again on 18 November 2005. Consequently, SEMEA argues, the Commission is required to pay compensation in the amount which the Court has ordered SEMEA to pay.
106According to settled case-law, in order for the Union to incur non-contractual liability, a number of requirements must be satisfied, namely that the alleged conduct of the institutions is unlawful, that the damage is actual and certain and that there is a direct causal link between the conduct of the institution concerned and the damage relied upon (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16, and Case T-231/97 New Europe Consulting and Brown v Commission [1999] ECR II-2403, paragraph 29).
107Where any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions for non-contractual liability (Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph 81, and Case T-195/08 Antwerpse Bouwwerken v Commission [2009] ECR II-4439, paragraph 91).
108In the present case, it need only be stated that there is no direct causal link between the conduct of the Commission and the damage relied upon.
109As regards the principal sum of EUR 41 012 which SEMEA has to repay to the Commission, suffice it to say that it is a debt based on the refund of an overpayment and that, since that debt is not time-barred, SEMEA would have had to pay it in any event, even if the Commission had not waited 12 years to approach SEMEA again.
110As regards the payment of late-payment interest, it should be pointed out that the accumulation of interest is a direct consequence of the conduct of SEMEA, which did not respond to the Commission’s request for reimbursement. There is therefore no direct causal link between the Commission’s conduct and that damage.
111SEMEA’s counterclaim must therefore be dismissed, without the need to examine its admissibility.
B –Case T-572/10
112The subject-matter of Case T-572/10 is the Commission’s application against the Commune de Millau and the Commune de Millau’s counterclaim.
1.The Commission’s application
113The Commission lodged its application against the Commune de Millau after learning that the Commune had decided to take over all SEMEA’s assets and liabilities.
a)The competence of the General Court
114The Commission considers that the Commune de Millau is subject to an arbitration clause within the meaning of Article 272 TFEU. On the other hand, without formally raising a plea of lack of competence by separate document pursuant to Article 114 of the Rules of Procedure, the Commune de Millau claims that the Commission’s application must be dismissed for having been brought before a court which does not have jurisdiction to hear it. It considers that the Commission cannot set up against it an arbitration clause within the meaning of Article 272 TFEU.
115In that regard, it should be pointed out, first of all, that the Court does not have jurisdiction to adjudicate, at first instance, on contractual cases brought before it, except in accordance with an arbitration clause. To do so would be to extend its jurisdiction beyond the limits exhaustively placed by Article 272 TFEU on the disputes of which it may take cognisance (see, to that effect, the orders in Case T-186/96 Mutual Aid Administration Services v Commission [1997] ECR II-1633, paragraph 47, and Case T-360/05 Natexis Banques Populaires v Robobat [2005] ECR II-0000, paragraph 12).
116As the jurisdiction of the General Court under Article 272 TFEU derogates from ordinary law, it must be given a restrictive interpretation (Case 426/85 Commission v Zoubek [1986] ECR 4057, paragraph 11). Accordingly, the Court cannot adjudicate on a contractual dispute unless it is the express intention of the parties to confer that jurisdiction upon it (order in Mutual Aid Administration Services v Commission, paragraph 115 above, paragraph 46, and judgment in Case T-259/09 Commission v Arci Nuova associazione comitato di Cagliari and Gessa [2010] ECR II-0000, paragraph 39). Only the parties to an arbitration clause may therefore be parties to an action brought on the basis of Article 272 TFEU (Case 23/76 Pellegrini v Commission and Flexon-Italia [1976] ECR 1807, paragraph 31, and Commission v Arci Nuova associazione comitato di Cagliari and Gessa, cited above, paragraph 40).
117Secondly, as for the law under which it is necessary to verify whether a valid arbitration clause has been concluded between the parties to the dispute, it should be pointed out that the Court’s jurisdiction to hear the case concerning a contract pursuant to an arbitration clause is determined, as a general rule, solely with regard to the provisions of Article 272 TFEU and the stipulations of the arbitration clause itself.
118That approach is consistent with the generally recognised principle that each court applies its own procedural rules, including rules on jurisdiction. The procedural law of the General Court includes Article 272 TFEU, but not the corresponding procedural provisions in the national legal codes. Besides, Article 272 TFEU should be regarded in the same way by all courts as a specific provision taking precedence over divergent national law (opinion of Advocate General Lenz in Case C-209/90 Commission v Feilhauer [1992] ECR I-2613, I-2622, paragraph 18).
119That rule applies even if the Court is called upon to apply the national law governing the contract in an examination of the substance of the case (see, to that effect, the judgments in Commission v Zoubek, paragraph 116 above, paragraph 10, and Commission v Feilhauer, paragraph 118 above, paragraph 13, and the order in Case T-449/04 Commission v Trends [2006] ECR II-0000, paragraph 29).
120It is in the light of the aforementioned case-law that it is necessary to examine whether the jurisdiction of the General Court to hear the Commission’s application against the Commune de Millau may be founded on an arbitration clause within the meaning of Article 272 TFEU.
The ancillary principle
121The Commission considers that the Commune de Millau is bound by the arbitration clause laid down in Article 10 of the General Terms of the contract because it has taken over SEMEA’s debt and, under French law, the arbitration clause was automatically transferred as ancillary to the debt. On the other hand the Commune de Millau argues that the arbitration clause is not an indissociable ancillary to the Commission’s claim. Moreover, there were no proceedings pending when the debt was taken over.
122Since the Commission’s arguments are based on an application of French law, it is necessary to determine, first of all, the applicable law.
123As has been stated, the Court’s jurisdiction to hear a case concerning a contract pursuant to an arbitration clause is determined, as a general rule, solely with regard to the provisions of Article 272 TFEU and the stipulations of the arbitration clause itself (see paragraph 117 above).
124However, in that regard, it is necessary to bear in mind the case-law of the Court of Justice concerning jurisdiction clauses within the meaning of Article 17 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972, L 299, p. 32), as amended by the successive conventions relating to the accession of new Member States to that convention (‘the Brussels Convention’), which also applies to jurisdiction clauses within the meaning of Article 23 of Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001, L 12, p. 1). It is apparent from that case-law that, although the validity of a jurisdiction clause is governed exclusively by Union law, that is to say by Article 23 of Regulation No 44/2001, the question of whether a jurisdiction clause agreed between a carrier and a shipper, incorporated in a bill of lading, produces effects vis-à-vis a third party holding the bill of lading who, by acquiring the bill of lading, has succeeded to the shipper’s rights and obligations, is determined in accordance with the law applicable to the contract (Case 71/83 Russ [1984] ECR 2417, paragraph 24; Case C-159/97 Castelletti [1999] ECR I-1597, paragraph 41; and Case C-387/98 Coreck [2000] ECR I-9337, paragraphs 22 to 27).
125In principle, it is therefore necessary to examine whether that case-law, according to which the law applicable to the contract governs matters of succession to rights and obligations, may be applied in the present case. That requires an application which is similar on two counts. First, the question arises whether it may be applied not only to a third party holding a bill of lading, but also to a third party who, having taken over a debt, succeeds the original debtor and automatically takes over the accessories of that debt. Second, the question arises whether that case-law concerning jurisdiction clauses within the meaning of Article 17 of the Brussels Convention and Article 23 of Regulation No 44/2001 is also applicable to an arbitration clause within the meaning of Article 272 TFEU.
126However, for the purposes of the present case, it is not necessary to reply to those questions. It must be stated that, even if French law were applicable, the arbitration clause concluded between SEMEA and the Commission was not transferred to the Commune de Millau as an ancillary part of SEMEA’s debt.
127Indeed, as has been stated (see paragraph 78 above), without the consent of the Commission, any take-over of SEMEA’s debt by the Commune de Millau would not have had the effect of releasing SEMEA from its debt to the Union and of making the Commune de Millau succeed it as debtor. Since the take-over of the debt by the Commune de Millau has given rise to a debt owed by the Commune to the Union, this can only be a stipulation for the benefit of a third party. Such a stipulation gives rise to a new obligation of the Commune de Millau which is legally separate from the obligation by which SEMEA is bound. Consequently, since there has been no transfer of SEMEA’s debt to the Commune de Millau, the arbitration clause binding SEMEA cannot have been transferred as ancillary to SEMEA’s debt.
128Admittedly, French law does not, in principle, preclude the Commune de Millau as promissor and SEMEA as stipulator of a stipulation for the benefit of a third party, from modelling the content and regime of a debt owed by the Commune de Millau to the Union on those of SEMEA’s debt to the Union. However, in that case, the take-over of the arbitration clause is not the consequence of the succession to rights and obligations within the meaning of the aforementioned case-law, but is the result of the intention of the parties. Therefore, this matter is governed not by French law, but directly by Article 272 TFEU (see paragraphs 117 and 118 above).
The conclusion of an arbitration clause
129Next, it is necessary to examine the Commission’s argument that, by taking over SEMEA’s debt, the Commune de Millau accepted an arbitration clause as laid down in Article 10 of the General Terms of the contract.
130First of all, it must be stated that Commune de Millau and the Commission have not concluded any contract and, therefore, any arbitration clause.
131Secondly, it must be stated that, in accordance with the aforementioned case-law (see paragraphs 115 to 119 above), the mere fact that, under the French law applicable to the contract, SEMEA and the Commune de Millau may be jointly and severally liable for the debt does not provide a legal basis for the jurisdiction of the General Court under Article 272 TFEU (Case T-44/06 Commission v Hellenic Ventures and Others [2010] ECR II-0000, paragraph 54).
132However, in the light of the circumstances of this case, the question arises as to whether, by means of a stipulation for the benefit of a third party between SEMEA and the Commune de Millau, the latter is subject to an arbitration clause in favour of the Union.
133Admittedly, the wording of Article 272 TFEU provides only for the possibility of incorporating an arbitration clause in the contract concluded by the Union. It therefore does not expressly provide that such a clause may be stipulated for the benefit of another. Moreover, the jurisdiction of the General Court deriving from Article 272 TFEU must be interpreted restrictively (see paragraph 116 above).
134However, since an arbitration clause is of a contractual nature, there is nothing to prevent the existence of such a clause being examined in the light of the general principles of contract law deriving from the legal orders of the Member States. Indeed, even if one of those principles states that a contract is binding only on the parties, that principle does not preclude those two parties conferring a right on a third party by means of a stipulation for the benefit of a third party.
135Moreover, the insertion, in the contract between the Commune de Millau and SEMEA, of an arbitration clause allowing the Union to submit a dispute between itself and the Commune de Millau to the General Court is not contrary to the requirement in Article 272 TFEU that such a clause be contained in the contract concluded by the Union or on its behalf. A provision in favour of a third party may be regarded as a provision made on behalf of the Union. On the other hand, that requirement in Article 272 TFEU must be interpreted as precluding the jurisdiction of the General Court over disputes concerning a contract being founded against the wishes of the Union. An arbitration clause stipulated solely in favour of the Union cannot be enforced against its will.
136Finally, the procedural nature of an arbitration clause does not preclude such a clause being stipulated in favour of the third party. In so far as concerns jurisdiction clauses within the meaning of Article 17 of the Brussels Convention and Article 23 of Regulation No 44/2001, the Court has already accepted such a clause (Case 201/82 Gerling Konzern Speziale Kreditversicherung and Others [1983] ECR 2503, paragraphs 10 to 20).
137In the present case, it is therefore necessary to examine whether SEMEA and the Commune de Millau agreed that the latter was to be subject to an arbitration clause within the meaning of Article 272 TFEU, stipulated in favour of the Union.
138It is apparent from the general principles of contract law that the existence of a provision in favour of a third party may result from an express agreement between the stipulator and the promissor seeking to confer a right on a third party. The existence of such a provision in favour of a third-party may also arise from the purpose of the contract or the circumstances of the case.
139In the present case, it is apparent from the circumstances of the case, particularly from the elements of fact and law established by the minutes of the municipal council of the Commune de Millau of 18 December 2010, that the Commune de Millau and SEMEA concluded an agreement according to which the Commune de Millau was to take over SEMEA’s liabilities and receive its assets in consideration. It is clear from those minutes that the Commune de Millau had been informed of SEMEA’s dispute with the Union and was to take over SEMEA’s debt ‘with full knowledge of the facts’. It is also clear from those minutes that, in consideration, SEMEA was to transfer the sum of EUR 82 719,76, which corresponded to its assets, to the Commune de Millau in order to enable it to cover the risk of proceedings arising from the take-over of its debt.
140It is true that an agreement relating to the payment of the debt of one party by another party does not necessarily have the effect of creating a new right in favour of the creditor. It may be a purely internal take-over or a payment instruction. However, in the present case, it is apparent from the purpose of the agreement between SEMEA and the Commune de Millau and from the circumstances of the case that those two parties wished to create a debt owed to the Union by the Commune de Millau. First, it must be stated that the objective pursued by SEMEA and the Commune de Millau was to pass on actual or potential creditors of SEMEA to the Commune de Millau. Second, it should be pointed out that, in consideration for the take-over of its debt by the Commune de Millau, SEMEA transferred all its assets to the Commune de Millau, namely EUR 82 719,76. As is apparent from the aforementioned minutes, the payment of that sum was to enable the Commune de Millau to cover the risk of proceedings arising out of the take-over of the debt, which also pleads in favour of the creation of a debt owed by the Commune de Millau to the Union. Finally, it cannot be presumed that the Commune de Millau, which is bound by the duty of cooperation in good faith between the Union and the Member States, intended to take over all SEMEA’s assets, thus allowing SEMEA to become a completely impoverished debtor, without itself giving an undertaking to the Union to pay SEMEA’s debt.
141As for the take-over of the arbitration clause, the Commune de Millau claims that it only agreed to take over SEMEA’s debt, not the arbitration clause. It is apparent from the purpose of the agreement between SEMEA and the Commune de Millau and the circumstances of the case that, at the time of the take-over, the Commune de Millau intended to submit itself to an arbitration clause such as that contained in Article 10 of the General Terms of the contract. As has been stated above, the Commune de Millau took over SEMEA’s debt to the Union in full knowledge of the facts, and therefore with knowledge of the dispute between SEMEA and the Union concerning the disputed debt. It therefore undertook to pay a debt the content and regime of which were modelled on those of SEMEA’s debt. Since the latter was bound by the arbitration clause laid down in Article 10 of the General Terms of the contract for all disputes concerning the contract, the Commune de Millau is therefore also subject to such a clause. Moreover, it must be said that neither the Commune de Millau nor SEMEA have adduced evidence to show that they expressed a reservation with regard to the take-over of the arbitration clause by the Commune de Millau before the Commission’s application against SEMEA was lodged. Furthermore, an argument in favour of the Commune de Millau being subject to the arbitration clause is the fact that SEMEA and the Commune de Millau could not reasonably expect actual or potential creditors of SEMEA to agree to seek recourse against the Commune de Millau if the content or regime of their claim against the Commune de Millau were less favourable than their claim against SEMEA.
142Finally, this interpretation of the intentions of the Commune de Millau and SEMEA cannot be countered by the argument that they intended to transfer SEMEA’s debt to the Commune de Millau with the effect of releasing SEMEA and that, in the absence of such an effect, the Commune de Millau refused to agree to be subject to the arbitration clause. Such an error would be inexcusable because, for obvious reasons of creditor protection, such a debt transfer could not have taken place without the Union’s consent.
143Consequently, it must be held that the Commune de Millau and SEMEA agreed, for the benefit of the Union, that it could rely on an arbitration clause as provided in Article 10 of the General Terms of the contract as regards the Commune de Millau.
144The existence of such an arbitration clause is unaffected by the fact that the Commune de Millau disputed its existence after the Commission’s application had been lodged. Whilst the stipulator and the promissor of a provision in favour of a third party may, in certain circumstances, delete or amend the clause conferring the right in question, under the general principles of contract law that is no longer possible after the third party has notified the promissor or stipulator that he wishes to exercise his right.
145As for the formal requirements for an arbitration clause within the meaning of Article 272 TFEU, it should be pointed out that that provision does not impose any special formal requirements. However, Article 44(5a) of the Rules of Procedure provides that an application submitted under Article 272 TFEU must be accompanied by a copy of the clause conferring jurisdiction on the Union courts. It is apparent from that provision that the arbitration clause must, as a rule, be stipulated in writing.
146It should be pointed out that that article of the Rules of Procedure has an evidential purpose and the formal requirement which it imposes must therefore be deemed to have been fulfilled where the documents produced by the applicant provide the General Court with sufficient information on the agreement between the parties to the action to remove the dispute between them from the purview of the national courts and to submit it to the Union courts (Case T-271/04 Citymo v Commission [2007] ECR II-1375, paragraph 56).
147In the present case, the Commission annexed to its application the minutes of 18 December 2008, which show that the Commune de Millau and SEMEA had decided that the Commune de Millau was to take over SEMEA’s liabilities, and the contract, which shows the content of the arbitration clause concluded between the Union and SEMEA. It therefore fulfilled the procedural requirement imposed by Article 44(5a) of the Rules of Procedure.
148Finally, as for the argument put forward by the Commune de Millau, that Article 2060 of the Civil Code and Article 48 of the Code of Civil Procedure preclude the Commune being subject to an arbitration clause under Article 272 TFEU, it need only be pointed out that, even if those rules were conflicting, Article 272 TFEU should be regarded in the same way by all courts as a specific provision taking precedence over divergent national law (see paragraphs 117 and 118 above).
149In the light of the foregoing observations, it must be concluded that the Commission may invoke an arbitration clause against the Commune de Millau and that the General Court therefore has jurisdiction to adjudicate on the Commission’s application against the Commune de Millau in accordance with Article 272 TFEU and the first subparagraph of Article 256(1) TFEU.
b)Substance of the application
150By its application, the Commission requests the Court to order the Commune de Millau to reimburse the principal sum of EUR 41 012, and to pay interest and also the sum of EUR 5 000 as compensation for the damage suffered.
The claim for reimbursement of the principal sum
151In its first head of claim, the Commission requests, first, that the Commune de Millau be ordered to pay EUR 41 012.
152Since the same claim is founded against SEMEA (paragraphs 60 to 89 above), the question only arises as to whether, under French law, the Commune de Millau is also liable for SEMEA’s debt.
153In the absence of Union consent to the take-over of SEMEA’s debt by the Commune de Millau, it is necessary to examine whether the Commune de Millau promised the Union to pay SEMEA’s debt, by means of a provision in favour of a third party.
154Article 1165 of the Civil Code does indeed provide that agreements take effect only between the contracting parties. However, it is also apparent from that article that agreements may benefit a third party in the case of a stipulation for the benefit of a third party as laid down by Article 1121 of the Civil Code (Conseil d’État, 20 December 1989, No 50815; Conseil d’État, 20 January 1992, No 46624; Conseil d’État, 19 July 2010, No 318126, and Cour administrative d’appel de Marseille (Marseille Administrative Court of Appeal), 21 October 2011, No 09MA00782).
155In that regard, it should be pointed out, first, that it is apparent from paragraphs 139 and 140 above that the Commune de Millau and SEMEA agreed to create a new debt owed to the Union by the Commune de Millau.
156It must also be stated that the further conditions laid down by Article 1121 of the Civil Code for the conclusion of a stipulation for the benefit of a third party are satisfied. In so far as the stipulator is still required to have a direct and immediate interest, a simple, even non-material interest, suffices (Cass. 1re civ., 26 February 1962, Bull. civ. I, No 124, p. 119; Cass. com., Cass. 1re civ., 5 June 1984, Bull. civ. I No 182). In the present case, that interest lies in the fact that SEMEA may ask the Commune de Millau to pay its debt to the Union.
157Moreover, the validity of the debt take-over by the Commune de Millau cannot be contested on the ground that it has no legal basis since that take-over does not have the effect of releasing SEMEA. A lack of legal basis constitutes only relative invalidity and the Commune de Millau has not claimed that the take-over of SEMEA’s debt is invalid. Moreover, that debt take-over has its legal basis in the fact that all SEMEA’s assets were also transferred to the Commune de Millau.
158It must therefore be stated that, pursuant to Article 1121 of the Civil Code, the Commune de Millau promised to pay SEMEA’s debt. The Union’s claim against the Commune de Millau for the reimbursement of EUR 41 012 is therefore well founded.
The claim for interest
159In its first head of claim, the Commission requests, secondly, that the Commune de Millau be ordered to pay late-payment interest at the annual statutory rate applicable in France. It claims that the Court should order the Commune de Millau to pay interest from 10 March 1992, in accordance with Article 1378 of the Civil Code and, in the alternative, from 27 April 1993 in accordance with Article 1153 of the Civil Code. In its second head of claim, the Commission claims that the Court should order that the interest should itself bear interest in accordance with Article 1154 of the Civil Code.
160For the aforementioned reasons (see paragraphs 152 to 158 and 92 to 95 above), it is necessary to reject the claim for late-payment interest from 10 March 1992 and to order the Commune de Millau to pay it from 27 April 1993.
161As for the request for capitalisation of the interest pursuant to Article 1154 of the Civil Code, it is necessary to refer, first of all, to paragraph 97 above. Next, it must be stated that, with regard to the Commune de Millau, the request for the Court to order the capitalisation of the interest was made only in the Commission’s application lodged with the Court Registry on 21 December 2010. At that date, interest had been owed for at least one whole year. On that legal basis, the Commission can therefore request capitalisation of the interest only from 21 December 2010.
162Owing to the take-over of SEMEA’s debt by the Commune de Millau, the Commission may request capitalisation of the interest from the date on which the Commission’s application against SEMEA was lodged, that is to say, from 15 April 2010. It is apparent from the purpose of the agreement concluded between the Commune de Millau and SEMEA and from the circumstances of the case that the Commune de Millau is required to pay all the interest owed by SEMEA. First, the Commune de Millau has promised the Union to pay SEMEA’s debt. Second, since all SEMEA’s assets have been transferred to the Commune de Millau, SEMEA is no longer able to respond to the Commission’s claim. In the light of those circumstances, it must therefore be held for the aforementioned reasons (paragraphs 139 and 140 above) that it is clear from the shared intention of SEMEA and the Commune de Millau that the latter was to be required to pay all the interest owed by SEMEA and therefore also the capitalisation of the interest from the time the Commission’s application against SEMEA was lodged.
163It is therefore appropriate to order that the interest shall itself bear interest both at the date on which the Commission’s application against SEMEA was lodged, namely 15 April 2010, and on each annual due date thereafter.
The claim for compensation
164In its third head of claim, the Commission requests the Court to order the Commune de Millau to pay the sum of EUR 5 000 as compensation for the damage suffered in respect of SEMEA’s wrongful obstruction of legal process.
165This claim must be rejected for the reasons stated in paragraphs 98 to 100 above.
c)Conclusion on the Commission’s application
166It is therefore necessary to uphold the Commission’s claims against the Commune de Millau for reimbursement of the principal sum of EUR 41 012 and to order it to pay late-payment interest at the annual statutory rate applied in France from 27 April 1993 until that principal sum has been paid in full. Moreover, it must be ordered that the late-payment interest shall itself bear interest both at 15 April 2010 and on each annual due date thereafter.
167The Commission’s action must be dismissed as to the remainder.
2.The counterclaim of the Commune de Millau
168In case the Court upholds the Commission’s claim for reimbursement, SEMEA has lodged a counterclaim. That counterclaim is based on Article 340 TFEU and Article 41(3) of the Charter of Fundamental Rights of the European Union. It is therefore a claim based on the Union’s non-contractual liability.
169The Commune de Millau considers that the Commission infringed its duty of sound administration and the principle of legal certainty by waiting 12 years after its claim for reimbursement of 27 April 1993 before approaching SEMEA again on 18 November 2005. Consequently, the Commission is required to pay compensation in the amount which the Court has ordered the Commune de Millau to pay.
170The Court considers that it is first necessary to examine the substance of this counterclaim (Council v Boehringer, paragraph 105 above, paragraphs 51 and 52, and France v Commission, paragraph 105 above, paragraph 26).
171For the same reasons as those set out in paragraphs 106 to 110 above, the counterclaim of the Commune de Millau is unfounded.
172The counterclaim of the Commune de Millau must therefore be dismissed.
C –Joint and several liability
173Since SEMEA and the Commune de Millau are both required to repay the principal sum plus late-payment interest and since the Commission is entitled to only one payment, SEMEA and the Commune de Millau must be ordered to make the payment jointly and severally, as the Commission requests.
Costs
174Under Article 87(2) and (3) 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 and where there are several unsuccessful parties the General Court may decide how the costs are to be shared. Since SEMEA and the Commune de Millau have been unsuccessful in their main submissions and the Commission has applied for costs, SEMEA and the Commune de Millau must be ordered to pay the costs.
Operative part
On those grounds,THE GENERAL COURT (Third Chamber)hereby:
1.Joins Cases T-168/10 and T-572/10 for the purposes of the judgment;
2.Orders the Société d’économie mixte d’équipement de l’Aveyron (SEMEA) and the Commune de Millau (France) jointly and severally to pay the principal sum of EUR 41 012 to the European Commission, plus late-payment interest at the annual statutory rate applied in France from 27 April 1993 until that sum has been paid in full. The interest outstanding on 15 April 2010, and on each annual due date thereafter, shall be capitalised in order itself to bear interest;
3.Dismisses the Commission’s applications in Cases T-168/10 and T-572/10 as to the remainder;
4.Dismisses SEMEA’s counterclaim in Case T-168/10 and the counterclaim of the Commune de Millau in Case T-572/10;
5.Orders SEMEA to pay its own costs and also the Commission’s costs in Case T-168/10;
6.Orders the Commune de Millau to pay its own costs and also the Commission’s costs in Case T-572/10.
Delivered in open court in Luxembourg on 19 September 2012.
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