C-330/88

OPINION OF MR TESAURO —CASE C-330/88

OPINION OF M R ADVOCATE GENERAL TESAURO delivered on 3 October 1990 *

Mr President, Joint Research Centre (February 1976, Members of the Court, doc. XIX A/50/76-I), which therefore form part of the agreement;

1. The present case, which was brought under Article 153 of the Euratom Treaty, (b) the payments for the work carried out concerns a dispute between Mr Grifoni's were determined by the price list for undertaking and the Commission relating to construction work published by the work carried out by the former for the Joint Milan Chamber of Commerce, except Research Centre at Ispra (to which I shall for items not contained in the list, which hereinafter refer as ‘the Centre’). were to be agreed upon on a case- by-case basis (clause 3); the payments were to be entered in the accounts on a cost-reimbursement basis (clause 7) ; The facts of the case are relatively simple. I shall summarize them briefly and refer to the Report for the Hearing for further (c) work which was not included in the details. order and which proved to be necessary when the order was in the process of being fulfilled had to be ‘first authorized in writing by the Directorate of Works From March 1980 onwards Mr Grifoni after submission by the undertaking of a carried out work at the Centre on a number definitive detailed costing. Any work of occasions as the successful tenderer for carried out otherwise shall not be sheet-metal and iron work. That work was acknowledged and consequently not carried out pursuant to an outline paid for’ (clause 6); agreement concluded in advance and on the basis of successive specific orders. (d) Italian law is applicable (clause 15) and, under the arbitration clause in the General Terms and Conditions, it is 2. The following elements of the expressly agreed that the Court of contractual relationship between the parties Justice is competent to settle any are of particular interest in the present case: disputes.

parties'; and that oral agreements have no actually supplied, even if they are quantitat- legal effects pursuant to clause 18, which ively different from those specified in the provides that 'changes to the contract order), merely stated that 'owing also to the (including additions and deletions) must be particular payment mechanism used by the made by an additional act subject to the Centre' (page 2 of the application) he had same conditions as the contract; oral not been paid by the agreed method. Such a agreements shall not be binding on the statement would suggest that Mr Grifoni's parties'. claims arose because of the incorrect entry in the accounts of the work he had carried out, particularly since the 'balances of account', which are to be found in an annex to the application, specified for each order, broken down by individual item, the 3. Relations between Mr Grifoni and the amounts which he considered still owing to Commission continued on the basis of the him. abovementioned contractual clauses until May 1987. During that period the Commission entrusted Mr Grifoni with the performance of diverse tasks by placing various orders; each of those orders contained, in addition to the relevant 5. However, in the reply and at the hearing technical specifications, the most important Mr Grifoni changed the presentation of his clauses of the outline agreement; in claims appreciably, alleging that what was particular it was confirmed that the General agreed in the written orders corresponded Terms and Conditions formed an integral only in part to the actual content of the part of the order, and a clause was agreements concluded between the parties reproduced which was identical in content orally and that therefore the written to the abovementioned clause 6. agreements are in fact fictitious agreements and in any event a partial and expedient formalization of the oral agreements. In brief, the essence of the claim is that the value of the work carried out by Mr Grifoni was much greater than the written orders When relations with the Commission came would suggest and, consequently, much to an end Mr Grifoni considered that he more than the Centre paid. had not been paid as agreed and he sent requests for further payments. The Commission refused those requests and Mr Grifoni brought the present action seeking payment of what he is allegedly still owed, Moreover, again in the reply the applicant which he claims is LIT 450 597 910. has asked for an amount — LIT 993 494 064 — which is more than that originally sought in the application. According to Mr Grifoni, that increase is justified by the fact that at the time he 4. In the application, Mr Grifoni, after lodged the application, in the absence of the referring to the agreements governing his relevant information from the Milan relations with the Commission, in particular Chamber of Commerce, it was not possible the clause according to which any work to quantify the amounts due under some carried out was to be entered in the headings. However, the Commission accounts on a cost-reimbursement basis considers that such a change constitutes the (that is to say on the basis of the services introduction of a new plea in law prohibited

In the present case those conditions have Secondly, it is fundamentally impossible for certainly not been met. Moreover, it is clear the Court not to be competent at least for a from the case-law of the Court of Justice part of the application, since the applicant that 'the subject-matter of the claim must be himself has confirmed, as will be seen better set out in the application, and no new claim below, that some of the services which are may be submitted in the course of the the subject-matter of the dispute also proceedings'. 1 The only exception to that correspond exactly to what was agreed in the written orders. Consequently, at least 1 — Judgment ¡n Case 191/84 Raralla v Commission [1986] ECR 1541. Similarly, see the judgments in Case 232/78 with regard to that part of the application, Commission v Frame [1979] ECR 2729, Case 152/78 GEMA v Commission [1979] 3173 and Case 124/81 and subject to the observation I shall make Commissioni United Kingdom [1983] ECR 203.

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GRIFONI v EAEC

rule is to be found in cases relating to in laying gutters and flashing, while the non-contractual liability where, although assistance in mounting industrial roofs had damage is imminent and foreseeable, the already been calculated and included in the amount of the damage cannot be precisely total amount sought in the application. assessed. In such cases the Court has held that changing the amount cannot be regarded as amending the application or introducing new pleas in law. 2

Moreover, a comparison of the two statements of account in question shows clearly that it was only at the reply stage that Mr Grifoni took into consideration and Accordingly, in my opinion, the abovemen- therefore calculated the balances owed to tioned exception is at best applicable only in him in respect of a number of orders which so far as, at the time Mr Grifoni lodged his do not appear in the annexes to the application, it was impossible for him to application among the orders in respect of quantify precisely the amounts which, which Mr Grifoni claimed to be entitled to according to him, he is stilled owed. further payments.

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OPINION OF MR TESAURO —CASE C-330/88

determine the price of the item in question without any correspondence between by obtaining an expert opinion or infor- what was actually agreed and what was mation from the Chamber of Commerce. carried out (on the basis of the oral agreement) and what is to be found in the written order;

Nor could the fundamental objection on the part of the Commission to Mr Grifoni's claims be considered to be an unexpected and unforeseeable procedural position, since (c) work carried out on the basis of exclu- Mr Grifoni had repeatedly requested, in sively oral orders but formalized in vain, payment of the alleged credits out of writing. court.

I therefore propose that the Court should declare the application admissible with Common to all three situations is the fact regard only to the smaller amount referred alleged by Grifoni (in the reply) that the to in the application; the remainder agreements relating to the individual jobs constitutes a change in the claim which is were always agreed orally, something which unjustified and consequently not permitted. the Commission disputes, in view of the provisions governing the contractual relationship in question.

9. Coming now to consideration of the question whether the claims are well founded, I would point out that three distinct situations can be identified from the 10. Even leaving aside the procedural comprehensive reconstruction by Mr problems which could strictly speaking Grifoni of his relations with the arise, since at the reply stage not only was Commission, although based on the general there a change in what was claimed but also premise that all the work was always agreed in the legal basis of the claims, I am of the orally, and from examination of the various opinion that there are substantive reasons orders in respect of which Mr Grifoni why the claims corresponding to the last claims that he is entitled to further payment: two arguments must be rejected.

It should also be noted that Article 50 of 11. Moreover, under Italian law, whose the Financial Regulation 3 provides that substantive provisions govern the rules of contracts concluded by the Community evidence, there are limited possibilities for following adjudication must be in writing. proving the existence of oral agreements As I have already mentioned, there is a differing from the content of a document. similar provision in Article 3.1 of the In particular, with regard to additional or General Terms and Conditions, which the differing agreements made prior to the parties expressly accepted as an integral part document, they may not be proved by the of the outline agreement. Article 18 of the testimony of witnesses (Article 2722 of the General Terms and Conditions provides, in Civil Code). 6 The Court may allow addition, that any changes to the contract evidence to support agreements concluded must be made in a supplementary document, subsequently, on the basis of an assessment subject to the same conditions as the of likelihood, having regard to the status of contract, and confirms that oral agreements the parties and to the nature of the contract are invalid and may not be relied on. (Article 2723 of the Civil Code). 7 However, when, as in the present case, the parties have agreed on the written form, the evidence of witnesses is accepted only in the event of the loss of the document (Article 2725 of the Civil Code). 8

Article 6 of the outline agreement provides that any changes or additions to the work ordered will not be recognized or paid for unless authorized in writing. A similar provision is to be found in Article 342 of the Law on public works in force in Italy 4 12. In the light of the rules set out above, and in Article 1659 of the Civil Code, and in particular the exclusions as regards which is applicable to changes which have evidence laid down by Italian law, I been agreed. 5 consider that Mr Grifoni's claims based on the existence of oral agreements and oral orders which are different from the content of the written agreements and orders must be dismissed.

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OPINION OF MR TESAURO — CASE C-330/88

13. However, there remains to be documents; he simply denies that they effect considered the claim corresponding to the a full discharge, claiming that the case mentioned at (a) above, based on the documents are not regular invoices but assumption that the work carried out in provisional documents. accordance with particular written orders was not paid for as agreed.

Mr Grifoni's argument cannot be accepted Not only is that claim not supported by any in so far as the documents in question, evidence or by the beginnings of evidence regardless of whether or not they can be that might reasonably open the way to described as invoices, certainly effect full possible measures of inquiry, it is also discharge for the Centre, precisely because contradicted by the documents before the they evidence payment of the sum asked Court. for, and therefore owed, and hence the extinguishment of the claim against the orderer, in the absence of any evidence to suggest that Mr Grifoni, from whom the documents come, regarded them as only The documents entitled 'balance of partial or provisional. That is particularly so account', annexed by Mr Grifoni to his since in none of those documents is it stated application, cannot be regarded as evidence. that they relate to a payment on account, or In those documents, drawn up by Mr similar, and in most of them it is in fact Grifoni, he merely specifies, by item and by stated that they constitute payment 'in order, the grounds which, taken as a whole, settlement' (orders 136/85, 695/85, 378/85, give rise to the claim for payment; thus they 631/85, 709/85, 106/85, 628/85, 637/80). merely specify the claim contained in the very concise application.

14. On the basis of all the above considerations, I therefore propose that the Court should:

(1) Declare the application inadmissible with regard to the modification of the claim after the application was lodged;

(2) Dismiss the remainder of the application;

(3) Order the applicant to pay the costs.

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