C-318/81

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser. Gianluigi Campogrande, acting as Agent, assisted by Pietro Ziccardi, with an address for service in Luxembourg at the office of Oreste Montalto, Jean Monnet Building, Kirchberg,

applicant. v

CO.DE.MI. SPA , whose registered office is in Milan, represented and assisted by Mario Savanco, of the Milan Bar, and Ernest Arendt, of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of the latter in Centre Louvigny, Rue Philippe-II,

defendant

; THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMIATI ! F

makes the following 1 — Language of the Case: Italian

I — Background to the proceed­ expert. The other party shall be required ings to signify within 15 working days whether or not it accepts the proposed expert, and in the event of non- 1. By letters of 14 and 20 December acceptance shall make a counter­ 1979, the Commission of the European proposal to which a reply shall be given Communities placed an order with the within 15 working days of notification company established under Italian law thereof. styled CO.DE.MI. SpA, whose registered office is in Milan, for the construction at the Ispra Joint Research Centre of two Such correspondence shall be conducted buildings, one called IP (Ingresso Prin­ by registered letter with advice of cipale [Main Entrance Building]) and the delivery. other MB (Management Building), for the price of LIT 1 068 351 682 (IP) and If the two parties do not succeed in LIT 1 370 000 000 (MB). reaching agreement, the required expert shall be appointed, at the request of the party which first makes application, by 2. Those letters expressly stipulate that the President of the Court of Justice of the General Terms and Conditions the European Communities." Applicable to Contracts Awarded by the Joint Research Centre — February 1976 — hereinafter referred to as "the 4. Article 16 of the conditions contains Conditions" are to form an integral part a clause regarding jurisdiction: "Failing of the orders. They also state that in the an amicable settlement, the Court of case of the IP building the works must Justice of the European Communities be handed over within 420 days and in shall have exclusive competence in any the case of the MB building within 450 disputes relating to the performance or days following the date of the the interpretation of the contracts memorandum recording the start of the governed by these general terms and works. The works started on 11 conditions. Jurisdiction is thus expressly February' 1980 (MB) and 20 March 1980 vested in the said Court of Justice (IP). pursuant to Article 153 of the Treaty establishing the European Atomic Energy Community and Article 181 of the 3. According to Article 15 of the Treaty establishing the European Conditions: "In the event of a dispute Economic Community. No other court arising where verification of the facts or whatsoever shall have such competence." technical examinations are required, either party may obtain an expert's report before bringing any legal 5. The execution of the orders in proceedings. question gave rise to disagreements between the parties as a resuit of which, To this end, either party shall inform the in May 1981, CO.DE.MI. suspended the other in writing of the subject of the works then in progress. By registered dispute and shall propose the name of an letter of 1 July 1981, the Commission

terminated both contracts, reminding 1. Declare that the contracts in question CO.DE.MI. that the Court of Justice are automatically terminated as from had jurisdiction to resolve any disputes 18 July 1981 as a result of the letter and suggesting Mr C , an engineer of of cancellation dated 1 July 1981; Milan, as the expert chosen by it to carry out the checks relating to the state of progress of the works, taking into 2. Declare that CO.DE.MI. was account the specifications issued by the required as from 18 July 1981, to party which commissioned them, in vacate the sites and order it to do so accordance with Article 15 of the without delay; Conditions. CO.DE.MI. did not signify its acceptance of that proposal and the parties were unable to reach agreement. 3. Order CO.DE.MI. to refund part of the price and to compensate the Commission for the damage caused to 6. In fact, when it suspended the works, the defendant had already sought it; and obtained on 12 May 1981 from the President of the Tribunale di Varese, by 4. Order that various preparatory an ex parte application, the appointment inquiries be carried out so as to give of an expert in order to carry out the Court information regarding the a "precautionary technical check" in­ causes, the nature and the volving a description of state of the consequences of the failure to works and ascertainment "of the complete the works. decisions taken by the principal", that is to say the Commission in its capacity of awarding authority. The Commission opposed enforcement of that order, 8. In its defence, CO.DE.MI. contends alleging lack of jurisdiction on the part that the Commission's claim should be of the Tribunale di Varese, by virtue of rejected. It asserts that the delay in the the provisions of the contracts between execution of the works is attributable to the parties. In view of that opposition, the awarding authority and requests, by the President of the Tribunale di Varese, way of counter-claim, that the Court by a second order of 20 July 1981, declare the contracts to be terminated by applied to the Court of Justice for reason of default on the part of the enforcement bv that court of his order of awarding authority, that it determine the 12 May 1981'. By order of 1 February amounts due to CO.DE.MI. and order 1982 the Court of Justice declared that the Commission to pay compensation for application to be inadmissible. the damage caused. Furthermore, it proposes that certain inquiries be carried out in order to prove that its claims are well founded. II — Written procedure

"in order to determine the present expert also to identify any changes quantitative and qualitative state of the evident in the said works in relation to operations, works and equipment on the the original plans and also the decisions site occupied by the undertaking taken by the contracting authority and CO.DE.MI. at the Ispra Centre for the project manager up to the end of construction of the IP (Main Entrance 1981 with regard to the carcass work to Building) and MB (Management be completed and the technical instal­ Building), and to determine any defects lations (electricity, air conditioning and and deficiencies in the works. In the heating and sanitary installations) to be discharge of the duties entrusted to him, carried out." the expert will be required to take into account the fact that on completion of the checks which he is instructed to carry III — Submissions and argu­ out the condition of the works and the ments of the parties site on which they are located must be such as to enable them to be handed 11. The applicant claims that it is back by the contractor to the awarding necessary and urgent, pending such authority." decision as the Court may pronounce on the substance of the case, to determine 10. In its observations regarding that the state of the works, particularly with a application for the adoption of an view to making it possible for interim measure, CO.DE.MI. claims that CO.DE.MI. to vacate the site. the Court should: "Primarily: 12. The defendant, whilst adhering to its view that the checks now requested by Define the task to be entrusted to the the Commission coincide with those expert in the following terms: 'To which the Tribunale di Varese ordered identify and describe the works carried to be carried out and could therefore out by CO.DE.MI. on the sites on which already have been completed, declares the IP and MB buildings are being that in essence, and subject to certain constructed at the Ispra Centre, their clarifications it approves the measures state of advancement and also the requested. materials on site.' In the alternative : 13. Both parties were requested by the And, only if the President of the Court President to put forward the names of considers it appropriate to extend the experts who might be appointed and expert's terms of reference, order the both complied with that respect.

On those grounds,

THE PRESIDENT,

by way of interim measure,

hereby orders as follows:

1. Mr C , of Milan, Libero Professionista Consulente del Tribunale [professional consultant to the court], is hereby appointed as a technical expert and, after inviting the parties to be present, attending on site and obtaining such information as he may consider relevant, which shall forthwith be disclosed or furnished to him by the parties to the main proceedings, shall:

(a) describe the works executed by CO.DE.MI. on the sites where the buildings at the Ispra Centre, referred to as IP and MB in the Commission's letters of 14 and 20 December 1979 commissioning those works, are under construction and determine how far they have progressed;

Luxembourg, 28 April 1982.

J. A. Pompe J. Mertens de Wilmars Deputy Registrar President