C-334/97
ECLI:EU:C:1999:53
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OPINION OF MR FENNELLY — CASE C-334/97
OPINION OF ADVOCATE GENERAL FENNELLY delivered on 4 February 1999 *
1. In the present proceedings, in which the signed by the acting mayor of Montorio Court's jurisdiction is founded on an arbi- on 25 July 1986 and by the Commission on tration clause in accordance with Arti- 28 July 1986. cle 181 of the Treaty establishing the European Community, the Commission asks the Court to order an Italian municipal authority to repay certain sums advanced under two contracts which the Commission claims to have terminated, as well as to pay compensation for the damage it claims to have suffered as a result of the behaviour of (a) Contract 147 the defendant.
3. C o n t r a c t N o W E - 1 4 7 - 8 5 ('con- tract 147') concerned the construction of a 225 kW wind turbine/diesel electricity generating plant. The work, phase 1 of I — Factual and legal background which had begun on 8 April 1986, was to be completed by 30 November 1988. Under Article 3 of the contract, the Com- mission undertook to contribute 40% of the actual cost of the project, up to a 2. Article 1 of Council Regulation (EEC) No 1972/83 of 11 July 1983 provides that maximum of ITL 820 000 000. Article 4.1 'the Community may grant financial sup- provided that Montorio bore the technical port for demonstration projects relating to and financial responsibility for the work set the exploitation of alternative energy out in Annex I to the contract and would sources and to energy saving and the make the necessary arrangements for insur- substitution of hydrocarbons'. 1 On ance. Under the conditions laid down in 8 November 1985, the Commission deci- Article 4.2, Montorio was entitled to sub- ded to support the demonstration projects contract part of the work to third parties. which formed the subject-matter of two contracts it concluded with the Comune di Montorio al Vomano (hereinafter 'Moli- torio' or the 'defendant'). These were
4. Article 4.3 laid down a number of * Original language: English. reporting requirements for Montorio. Of 1 — OJ 1983 L 195, p. 6. these, Article 4.3.2 reads as follows:
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'Within nine months reckoned from the 5. Article 8, which is of central importance date of signature of the contract and before to the present proceedings, reads as fol- the expiry of each six-month period there- lows: after, the Contractor shall submit to the Commission, in separate documents:
'The present contract may be terminated as of right by the Commission in the event of non-fulfilment by the contractor of any of its obligations under the present contract, in particular failure to observe the time- limits for submitting the reports provided for in Article 4.3, where the contractor has — a detailed intermediate report 2on the been formally called on to comply by state of advancement of the works, on means of a registered letter with a certifi- the results obtained and on any deposit cate of receipt and has failed to do so of a patent application; within a period of one month thereafter.
The contract may also be terminated in the event of the contractor having, in order to obtain the financial contribution, made false statements, provided that they are imputable to the contractor. — a summary of the expenses incurred in the previous period, accompanied by the appropriate supporting documents; In any such case the contractor must immediately reimburse to the Commission the amounts paid to it by way of financial contribution, together with interest as from the date of receipt of those amounts. The rate of interest shall be that applied by the European Investment Bank on the date of the Commission decision concerning award of the contract for the project to which the — a short publishable report on the state financial contribution relates'. of advancement of the works and on the results obtained.'
2 — If the period between the date of forwarding laid down in the last intermediate report and the end of the work 6. In accordance with Article 13, the Court programme is less than six months, the contractor shall set out the results and the conclusions for that period in the of Justice is competent to rule on any final report. disputes regarding the validity, the inter-
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pretation and the application of the con- cing for the modified project, and of the tract. Article 14 provides that the contract authorisation to connect the planned tur- is governed by Italian law. bine to the electricity grid. The letter indicated that, failing transmission of the documents by 31 January 1992, the con- tract would be terminated in accordance with Article 8. Montorio sent a reply on 7. On 20 August 1986, the Commission 8 January 1992. paid over some ITL 246 000 000 to Mon- torio. On two occasions in January and September 1987, the Commission wrote to Montorio to remind it of its obligations to comply with the reporting requirements under Article 4.3 of the contract. By letter 9. Following a site inspection in March of 3 November 1987, the Commission 1992, the Commission requested Mon- acceded to Montorio's request for a six- torio, by registered letter of 25 August month extension for completion of the 1992, to provide the following documents: work, and on three dates in 1987 and 1988 paid over further sums totalling ITL 209 200 000. On two further occa- sions in November 1988 and March 1989, the Commission was obliged to remind — the written agreement of the Abruzzo Montorio of its obligations under Arti- Region indicating the amount and cle 4.3. Up to this point, the Commission timing of its contribution to the new did not operate the provisions of Article 8 project; of the contract.
8. By registered letter of 5 March 1990, the — Montorio's written resolution concern- Commission did, however, threaten to ing the repayment of the monies terminate the contract if Montorio did not granted under contract 149 (see provide the final technical and financial below); reports. It appears from this letter that the Commission thought then that the work had been completed by 31 May 1989, as agreed; further correspondence revealed that this was not so. By letter of 18 Sep- — an analysis of the financing for the tember 1991 Montorio notified the Com- total cost of the project; and mission that it wished to modify the original project and requested, in effect, a further extension of the deadline for com- pletion to 31 December 1992. By a second registered letter, of 20 December 1991, the Commission requested a copy of the formal — a new work programme which would decision of the competent authority of the show how the project would be carried Comune di Montorio to allocate the finan- out.
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All of the documents were to be presented the work was to be completed by the end of by 30 September 1992, failing which the May 1988. Montorio was permitted, in Commission indicated that it would apply accordance with Article 4.2.1, to sub-con- Article 8 of the contract. tract the carrying out of part of the work, and had, in April 1986, concluded such a contract with TECNO srl. The Commis- sion paid over ITL 158 400 000 to Mon- torio on 8 August 1986.
10. Montorio informed the Commission by letter of 13 October 1992 that the building work would start on 3 November. By two respective letters dated 29 October 1992, Montorio sent the Commission a new work programme and informed it that the remis- sion of the remainder of the funding from the Abruzzo Region was subject to con- siderable delays. In its reply of 30 Novem- 12. On two occasions in 1987, the Com- ber 1992, the Commission stated that mission requested Montorio to provide the Montorio's letter of 13 October had been first report required under Article 4.3.1 of sent after the deadline and did not contain the contract. On 27 October 1987, any of the information requested, and TECNO suspended work on the installa- informed Montorio that it had therefore tion. On 8 January 1988, the Commission decided to apply Article 8 of the contract. sent Montorio a letter of formal notice in The relevant service of DG XIX of the accordance with Article 8, threatening ter- Commission unsuccessfully requested mination of the contract if the financial and repayment of ITL 455 200 000 by letters technical reports required under Arti- of 19 December 1995 and 24 January cle 4.3.1 were not provided within one 1996. month of receipt of the letter. By letter of 16 March 1988, the Commission con- firmed that it was terminating the contract. According to the Commission, the work which was the subject-matter of con- tract 149 was never even commenced.
(b) Contract 149
1 1 . C o n t r a c t No HY-149-85 ('con- tract 149') concerned the construction of a 300 kW hydroelectric plant integrated with a wind-diesel system for generating 13. A final letter requesting reimbursement and water pumping (by back to back). The of the sums paid out under contracts 147 reporting and termination clauses were and 149 was sent on 20 September 1996; essentially similar to those of contract 147; Montorio did not reply.
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(c) The proceedings before the Court 15. As regards contract 149, the Commis- sion cites Montorio's failure to respect Article 4.3, 4.4 and 4.5 of the contract, concerning the provision to the Commis- 14. The Commission initiated the present sion of periodic reports, and of information proceedings on 24 September 1997. As on any events which might jeopardise the regards contract 147, the Commission fulfilment of the contract, and of informa- complains of Montorio's failure to respect tion on the progress of the work. It there- the following clauses: fore claims that the contract was termi- nated in accordance with Article 8 as a result of the letter of formal notice of 8 January 1988, and that Montorio was notified of the termination by registered letter of 16 March 1988. — Article 2 (timetable for the completion of the work)
— Article 4.3 (provision of periodic 16. Relying on Article 1453 of the Italian reports) Civil Code, the Commission is also claim- ing compensation for damage suffered as a result of Montorio's failure to respect the contracts. It estimates the time spent super- vising Montorio's activities at 150 man- hours; at ITL 125 000 per hour, it is — Article 4.4 (provision of information claiming ITL 11 875 000 under this head. on delays) To this, the Commission adds the damage to its credibility vis-à-vis the other institu- tions and the Member States, as well as third parties which may wish to conclude contracts with the Community. The Com- — Article 4.5 (provision of information mission estimates the total damage at on the progress of the work). ITL 50 000 000, without prejudice to any other amount the Court may decide to award in equity.
The Commission claims that the contract was terminated in accordance with Arti- cle 8, citing the letter of 25 August 1992 as the letter of formal notice required by 'Article 4.3'. It states that Montorio was 17. In its defence, Montorio argues that the notified of the termination by registered completion date of 30 November 1988 was letter of 30 November 1992. only indicative, as evidenced by the fact
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that the Commission3 took no action for is only due from the moment of the nearly a decade to sanction the failure to termination of the contract, not from that comply with it; as the Commission did not of the receipt of the sums at issue. put the municipal administration on notice to comply with its obligations and fix a final deadline to this end, the request for termination for non-performance based on Article 1453 of the Italian Civil Code is inadmissible. The Commission's behaviour had led Montorio to believe that it was prepared to wait until the legal proceedings 20. In its rejoinder, Montorio claims that a against TECNO for non-performance had party may waive or suspend an express been concluded, and the Abruzzo Region termination clause, where that party post- had decided once again to finance the pones the date fixed for the carrying out of work. the contract. The Commission's letter of notice of 25 August 1992 only concerned technical and financial reports; these were however supplied on 29 October 1992. Montorio also claims that it never received the letter of the Commission dated 18. On the merits, Montorio argues that 16 March 1988 by which it informed the Commission had 'after mature reflec- Montorio that contract 149 was dissolved. tion', by the letter of 25 August 1992, fixed As regards the rate of interest, it submits the period for communication of the docu- that, in accordance with the principles of ments as expiring on 30 September 1992. contract law in force, the dominant party In its view, the Commission has ignored the must provide the other party with all the fact that Montorio had, by letter of necessary information including, in casu, 29 October 1992, provided the Commis- the contractual interest rate. sion with the work programme it had requested on 25 August 1992; as the letter of 30 November 1992 is based on a false factual premiss, Article 8 of the contract is therefore inapplicable.
I I— Analysis 19. Montorio also claims that the clause concerning the contractual rate of interest is null and void, as, in accepting Article 8, the mayor had only accepted the conditions under which the contract could be termi- nated, not the rate of interest. It finally 21. In the present proceedings, the proper argues that Article 8 provides that interest consideration of Montorio's defence has been hampered somewhat by its incoherent presentation, and in particular Montorio's 3 — Montorio refers both to 'the European Community' and to 'the Commission'; for the sake of clarity, I will refer to 'the persistent failure to indicate which of the Commission' throughout. contracts its arguments refer to. None the
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less, in the spirit of the general principles (b) The termination of contract 147 governing the duty of the Court, I have attempted, where possible, to interpret these arguments in the manner which is consistent with the defendant's conclusions, to wit, that the Commission's claim should 23. Montorio's first claim, which may only be rejected because Montorio has fulfilled be interpreted as concerning contract 147, its contractual obligations and, in the is that the deadline fixed for completion of alternative, that interest is due at the legal the work was merely indicative in charac rate reckoned from the date of the initia ter, as demonstrated by the fact that the tion of the present legal proceedings, or at Commission waited almost a decade after least that of the letter declaring the contract the expiry of the deadline before initiating terminated. the present proceedings. In these circum stances, the Commission's action for termi nation of the contract for non-performance in accordance with Article 1453 of the Italian Civil Code is inadmissible.
(a) Partial inadmissibility of Montorio's defence 24. While it is true that the Commission refers to the breach of a number of Montorio's obligations under contract 147 other than Article 4.3, it is clear that the Commission is relying on the termination 22. In its rejoinder, Montorio argues that in 1992 of that contract in accordance with the contractual provision fixing a higher Article 8, rather than requesting termina rate of interest than the legal rate is illegal tion for non-performance in accordance because the actual rate was not indicated with Article 1453 of the Italian Civil Code. and that the predominant contractor is Montorio's plea of inadmissibility is there obliged to communicate all the relevant fore misconceived. The same is true of its elements to the other party. It also argues argument contesting the serious character that it had never received the Commission's of the breach, which does not arise where a registered letter of 16 March 1988, and party relies on an express termination hence that contract 149 had never been clause; as the Corte di Cassazione (Court terminated. These pleas are clearly inad of Cassation) held in its judgment of missible under Article 42(2) of the Rules of 28 January 1993, in concluding such a Procedure of the Court of Justice, which clause the parties have already agreed that prohibits the introduction in the course of the failure to comply with the specified proceedings of any new plea in law, 'unless obligation is such as to justify the termina it is based on matters of law or fact which tion of the entire contract. 4 come to light in the course of the proce dure'. Montorio has not sought to argue, nor, in my view, could it, that either of these 4 — Corte di Cassazione, judgment of 28 January 1993, no. 1029, Soc. Pierre Balmain ν Soc. ¡ntermoda, 1993 II pleas is so based. Foro Italiano 1470, 1475-1476.
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25. Montorio's second claim is that Arti- 26. I would reject the first branch of this cle 8 of the contract, which must also, in claim as simply untrue. The Commission the light of the dates mentioned, and has produced copies of the certificate of despite certain inconsistencies, be treated receipt for each of the registered letters of as referring to contract 147, is inapplicable formal notice it sent to Montorio concern- because: ing contract 147 on 5 March 1990, 20 December 1991 and 25 August 1992. Moreover, Montorio replied to each of these, by letters of 19 April 1990, 8 Janu- ary 1992 and 13 October 1992, and cannot claim not to have received them.
— the letter of formal notice was not sent by registered post;
— the Commission continued to request 27. The second and third branches of reports after the expiry of the deadline, Montorio's argument seem to me to raise so that it must be considered as having the same legal point, to wit, whether the waived the termination clause; Commission's behaviour after the expiry of the deadline should be interpreted as indi- cating a waiver of the termination, in line with the relevant case-law of the Corte di Cassazione. 5 Montorio's argument con- cerning the alleged contradictory attitude of the Commission in seeking to terminate in 1992 a contract which it had already — the Commission's attitude is contra- terminated in 1988 is based on a confusion dictory, in that it had stated in its letter between contracts 147 and 149, and should of 20 September 1996 that the contract be rejected. had been terminated in 1988, while it is clear from its letter of 30 November 1992 that the contract was not resolved. Thus, having declared that it wished to terminate the contract, the Commission adopted a course of beha- viour demonstrating that it had waived the clause, even agreeing on a new deadline for completion. In response to the Commission's letter of 25 August 28. In order to deal with this point satis- 1992 setting a deadline of 30 Septem- factorily, it becomes necessary to determine ber 1992, Montorio sent the docu- ments on 29 October 1992; the legal conditions governing termination as of 5 — See, for example, judgment of 16 February 1988, no. 1661, right were therefore not fulfilled. Giur. it., 1989, I 1, p. 141.
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exactly if and when contract 147 was contract. On the other hand, the Commis- properly terminated. The reliance on an sion's intention, as expressed in its letter of express termination clause is regulated by 30 November 1992, to terminate con- Article 1456 of the Italian Civil Code tract 147 following Montorio's failure to which provides that: comply with its letter of 25 August 1992 is clear and unequivocal.
'The contracting parties can expressly agree that the contract will be terminated if a specified obligation is not performed in the designated manner. 30. Montorio has accepted that the Com- mission could, in principle, rely on Arti- cle 8, combined with Article 4.3, of the contract, though arguing that Article 8 was inapplicable in the circumstances because of the two letters it had sent the Commis- In this case, the termination takes place by sion on 29 October 1992. In particular, it operation of law when the interested party has not challenged the Commission's view declares to the other that he intends to avail that the registered letter of 25 August 1992 himself of the termination clause'. constituted a proper call for compliance within the meaning of Article 8.
29. In the present case, the Commission first sent a letter of formal notice calling on Montorio to comply with Article 4.3 of the contract on 5 March 1990. Though Mon- torio's failure, for obvious reasons, to 31. In order for the Commission properly supply the reports requested would have to terminate contract 147, it is of course entitled the Commission to terminate the obliged to comply strictly with the proce- contract at least from the date indicated in dural requirements of Italian law and of that letter (31 May 1990), it did not do so Article 8. That said, the reference in its either then, or following Montorio's failure application to 'Article 4.3' is clearly inten- to comply with the deadline laid down by ded to refer to the first paragraph of the registered letter of 20 December 1991. Article 8, which, in fact, provides for the In neither case could the termination take sending of a letter of formal notice should place 'by operation of law', as the Com- the reports required under Article 4.3 not mission had not notified Montorio of its be provided within the deadline set. Arti- intention to avail of the option to termi- cle 4.3, on the other hand, does not refer at nate, as required by both Article 1456 of any point to the sending of such a letter. As the Italian Civil Code and Article 8 of the I have had to go to some lengths to
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interpret the defendant's pleadings in the requested by the Commission in this letter present case, it seems only equitable that corresponded closely to information on the what is clearly a typographical error in the carrying out of the work and the financial Commission's pleadings should not be management thereof which the reports given undue importance. were intended to provide. This interpreta- tion of Article 4.3 of the contract also appears to me to best reflect the common intention of the parties, which is the guiding principle for the interpretation of contracts laid down by Article 1362 of the Italian Civil Code.
32. The Commission was obliged, under Article 8 of contract 147, to call upon the defendant to comply with Article 4.3; in 33. A party may only rely on an express the present case, however, where Montorio termination clause where the responsibility had egregiously failed to comply with most for the non-performance of the specified of its obligations under the contract, and obligation is imputable to the defaulting where, by the time of the Commission's party, in accordance with Article 1218 of letter of 25 August 1992, almost no work the Italian Civil Code. 6 It is clear from the had been carried out, the Commission facts of the present case, and in particular could hardly have been expected to call the assumption by Montorio of the entirety for reports 'on the state of progress of the of the technical and financial responsibility work', or the supporting financial docu- for the execution of the work envisaged, in ments. In these circumstances, it would accordance with Article 4.1 of con- appear to me to be excessively formalistic tract 147, that responsibility for its failures to require the Commission in its letter of under the contract may not be imputed to formal notice to call upon Montório to any other party or cause. Indeed, Montorio comply with the deadlines for the provision has not sought to deny its responsibility in of the reports due under Article 4.3 of the this respect. contract, when both parties knew that compliance with that obligation was no longer possible. Had the contractual rela- tionship not evolved, the Commission would have had no alternative but to bring it to an end much earlier, which is exactly 34. The only point outstanding is therefore what Montorio had sought to avoid. More- one of fact: whether Montorio had, before over, Montorio has not disputed the fact the termination of the contract had become that it was under an obligation to provide operative (on notification by the Commis- the documents listed in the letter of sion, by letter of 30 November 1992), 25 August 1992, failure to comply with provided the Commission with the docu- which would allow the Commission to ments specified in its letter of 25 August terminate the contract under this provision, and has expressly argued that by providing the work programme it had complied with 6 — Opinion of Advocate General La Pergola of 15 October 1998 in Case C-69/97 Commission v S.N.U.Α., para Article 8. Furthermore, the material graph 14 (judgment pending).
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1992. The first of the documents requested plied within the period indicated by the was the written agreement of the Abruzzo Commission in its letter of 25 August Region indicating the amount and timing of 1992, i.e. before 30 September 1992. its contribution to the new project. Con- trary to its affirmations, the letter of 29 October 1992 on which Montorio relies does not comply with this request; on the contrary, the relevant letter indicates that funding from the Region had suffered considerable delays, and that the sum 37. In these circumstances, taking the would be available before the end of Commission's letter of 25 August 1992 as January 1993. There is however nothing a call for compliance in accordance with in the case-file to indicate that this funding Article 8 of contract 147, this contract had been allocated by the date indicated, or was, in my view, validly terminated by the even before the commencement of the Commission by letter of 30 November present proceedings. 1992.
35. The Commission had also requested a 38. While the Commission may have drag- written resolution from the Comune di ged its heels somewhat in seeking to Montorio concerning the repayment of the recover repayment of the amounts monies granted under contract 149. There advanced under the two contracts, Mon- is nothing to indicate that this was forth- torio has provided no evidence of any coming either, then or now; on the con- Commission behaviour which could sup- trary, while it failed to present any sub- port the view that it no longer wished to stantive argument on the point, Montorio rely on the termination of the contract has in the course of the present proceedings under Article 8 after this date. The only expressly contested any liability to reim- communications it received from the Com- burse these sums. mission in relation to contract 147 after the letter of 25 August 1992 were the letter of 30 November 1992, noting that this con- tract (and contract 149) had been termi- nated, and the requests for repayment from the Commission's services by letters of 12 December 1995, 24 January 1996 and 20 September 1996. In particular, I would 36. Thirdly, the Commission had requested reject as wholly unsubstantiated Montor- an analysis of the financing for the total io's claim that the Commission led it to cost of the project. Neither of Montorio's believe that the Commission was prepared letters of 29 October 1992 make any to await the outcome of legal proceedings reference to such an analysis, nor has which were apparently pending against Montorio shown that the Commission TECNO. Nor do I consider it remotely received the information requested. In any possible to construct the request by the event, none of the information was sup- Commission in its letter of 25 August 1992
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for a copy of the written agreement of the sible and well founded. I therefore propose Abruzzo Region regarding the financing of that the Commission's claim be upheld in the project as indicating an intention to this regard. wait for that financing before terminating the contract, especially as Montorio was unable to comply with this request. In any case, this argument is inconsistent with Article 4.1 of the contract, as noted above, which expressly provided that Montorio assumed the entire technical and financial responsibility for the project.
(d) The amount of interest due
39. I am therefore of the opinion that contract 147 was validly terminated by the Commission by letter of 30 November 41. In alleging the nullity of the clause 1992, and that Montorio should be ordered fixing the rate of interest at that applied by to repay the sums advanced under this the European Investment Bank at the date contract, as specified in the Commission's of the Commission decision awarding the application. contract ('the EIB rate'), Montorio is relying on Article 1341 of the Italian Civil Code. This provides, inter alia, that clauses in standard-form contracts which establish in favour of the party which has prepared them in advance a derogation from the competence of the courts, presumably here that to determine the rate of interest, are ineffective, unless specifically approved in (c) The termination of contract 149 writing. In the present case, on 25 July 1986 the acting mayor of Montorio expressly approved in writing, 'within the meaning of Articles 1341 and 1342' of the Italian Civil Code, a number of clauses of the contract, including Article 8, at page 11 40. Given the terms of Montorio's state- thereof. Paragraph 3 of this provision not ment of defence, and in particular the dates only specifies the rate of interest, but does and alleged facts relied on, I do not so in the context of the application of the consider it possible to interpret this as express termination clause. I can find no making any argument in law whatsoever merit in the defendant's argument on this concerning the Commission's claim in point, and Montorio has not contested the respect of the repayment of the sums due Commission's figure of 14.2% as being the under contract 149. It appears clearly from EIB rate. I therefore recommend that the the case-file that the Commission's applica- Court hold that the interest on the sums tion in relation to contract 149 is admis- advanced is 14.2%.
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42. Montorio's argument concerning the such contracts as part of its duties under the date from which the interest is due is EC Treaty; the causal link between the equally devoid of merit. In its view, 'it defendant's glaring failures and any loss by follows from the terms of Article 8' ('[pur] the Commission has not been shown. considerando le prescrizioni dettate dall'art. 8') that interest is due from the date of the dissolution of the contract. The terms of the third paragraph are, however, crystal clear, and require the payment of 44. Furthermore, the fact that one contrac- interest as from the date of receipt of those tor has not respected its contracts can amounts. Montorio has not contested the hardly be said to lead to a loss of credibility calculation of the interest due on each of for the Commission in its relations with the amounts advanced upon which the other potential contractors, the Commu- Commission relies in its application, and I nity institutions and the Member States; would therefore recommend that the Court any loss of credibility which could be said find in favour of the Commission in this to arise does so as a result of the Commis- regard. sion's tardiness in pursuing Montorio for three years after it was clear beyond doubt that contract 147 was not going to be carried out, or, in the case of contract 149, eight years, and from the Commission's decision not to request, in its letters of December 1995 and January 1996, Mon- (e) The Commission's claim in damages torio to pay the interest due on the sums advanced.
43. Damages for non-performance of a contractual obligation is admitted in some circumstances by Article 1218 of the Italian Civil Code. It appears from the case-law of the Corte di Cassazione that the party seeking such damages must prove the fact (f) Costs of such loss, while according to Arti- cle 1223 of the Italian Civil Code, damages are restricted to loss, or loss of earnings, sustained by the plaintiff as a direct and 45. If the Court were to follow my recom- immediate consequence of the non-perfor- mendations on the merits, the Commission mance. In the present case, the Commission would have succeeded in all of its submis- has not shown that the behaviour of the sions. In those circumstances, I would defendant was such as to cause supplemen- recommend that Montorio be ordered to tary costs above and beyond those which it pay the costs of the action, as the Commis- would have incurred in the handling of sion has requested.
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III — Conclusion
46. In view of the foregoing, I propose that the Court:
(1) Order the Comune di Montorio al Vomano to reimburse to the Commission, in respect of contract No WE-147-85:
—ITL 246 000 000, plus interest at 14.2% calculated from 1 December 1986 until the date the sum is paid to the Commission;
—ITL 49 200 000, plus interest at 14.2% calculated from 1 March 1988 until the date the sum is paid to the Commission;
—ITL 110 800 000, plus interest at 14.2% calculated from 1 June 1988 until the date the sum is paid to the Commission;
—ITL 49 200 000, plus interest at 14.2% calculated from 1 August 1988 until the date the sum is paid to the Commission.
(2) Order the Comune di Montorio al Vomano to reimburse to the Commission, in respect of contract No HY-149-85, ITL 158 400 000, plus interest at 14.2% calculated from 1 November 1986 until the date the sum is paid to the Commission.
(3) Order the Comune di Montorio al Vomano to pay the costs. I - 3401