T-106/98
ECLI:EU:T:1999:163
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FRATELLI MURRI V COMMISSION
ORDER OF THE COURT OF FIRST INSTANCE (First Chamber) 4 August 1999 *
In Case T-106/98,
Fratelli Murri SpA, a company incorporated under Italian law, established in Rome, represented by Karl-Gustav von Luschka, Rechtsanwalt, Dresden, with an address for service in Luxembourg at the Chambers of Claude Medernach, 8-10 Rue Mathias Hardt,
applicant,
v
Commission of the European Communities, represented by Etienne Lasnet, Legal Adviser, and Barbara Brandtner, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
defendant,
* Language of the case: German.
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APPLICATION for damages pursuant to Article 178 of the EC Treaty (now Article 235 EC) and the second paragraph of Article 215 of the EC Treaty (now the second paragraph of Article 288 EC) on account of the harm allegedly suffered by the applicant in the context of the implementation of the 'Baardaheere Agricultural Experimental Station' project, as a result of events occurring in the Somali Democratic Republic,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (First Chamber),
composed of: B. Vesterdorf, President, J. Pirrung and M. Vilaras, Judges,
Registrar: H. Jung,
makes the following
Order
Factual background to the dispute
1 The applicant is a company limited by shares, incorporated under Italian law, whose objects are the construction, acquisition, management and sale of real property, the construction of roads and ports, the management and control of Italian and foreign undertakings, companies and operations.
2 On 6 March 1989, the applicant concluded with the Ministry of Foreign Affairs of the Somali Democratic Republic a contract for the construction of the
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'Baardaheere Agricultural Experimental Station', designating the European Development Fund as the financing body.
3 During the performance of the contract, the security situation in the Somali Democratic Republic became appreciably worse. The applicant claims that, on several occasions, it told the Commission, in its capacity as manager of the European Development Fund, that the staff and equipment should be removed from the country. On each occasion, the Commission's representative urged it to continue with the performance of the contract.
4 By letter of 4 January 1991, the applicant informed the Commission that the works on site had been stopped and that it reserved the right to institute legal proceedings in respect of all the damage and/or losses caused to its'materials, plant and works. None the less, on 8 January 1991, the chairman of the board of directors of the applicant company was allegedly ordered by the Commission delegate not only to continue with the performance of the contract but also to maintain and oversee for at least two months the works which had been completed. By fax of 16 January 1991, which it allegedly also sent to the Commission, the applicant reported to the company of engineers responsible for supervising the works on their total completion, in accordance with directions. It added: '[w]e have to inform you that owing to the state of guerrilla [war] existing in the country, our worksite and particularly our Mogadishu base and our crushing plant in Baidoa have been robbed by armed gangs of motor-vehicles, lorries, truck-tanks, material and equipment that had been imported in Somalia for the project works, and that will be subject of a claim as soon as we shall be able to quantify the amount of the thefts'.
5 By letter of 1 March 1991, the Commission informed the applicant of the termination of the contract with immediate effect due to the persisting troubles in the Somali Democratic Republic.
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6 On 16 April 1991, the applicant wrote to the Commission delegate for the Somali Democratic Republic in the following terms: '... we kindly ask you to invite us to a meeting in your offices together with the Consulting Engineer, to the purpose of finalising a conclusive agreement which may avoid the opening of a dispute between our Company and the CEC [Commission]. Further to the guerrilla warfare in Somalia, prevailing at the final stadium [stage] of the project's execution, our Company has undergone a loss of equipment and plant amounting to several millions of ecu, which we asked the Consultant to certify.'
7 By letter of 25 September 1991, whose subject was a '[cjlaim for damages suffered by [the] Company, due to the impossibility of re-exporting plant, equipment, materials imported for the execution of the works in contract', the applicant stated: '[w]e make reference to our registered letter dated 4 January 1991... where we reserved the right to quantify the damages suffered for the non- reexportation in consequence of the civil war happened in the Country.' The applicant estimated the actual value of the damage allegedly suffered at USD 7 923 791. That letter was addressed to the 'Ministry of National Planning and Juba Valley Development, Mogadishu — Somalia' with a copy to the Commission.
8 By letter of 7 April 1993, the applicant informed the Commission that:
8 '[a]s advised by Mr D. Frisch, Chief Authorising Officer, in his attached letter dated 01.03.1991 dealing "inter alia" with outstanding claims in connection with the termination of contract No 166/89, please find herewith enclosed a photostatic copy of a list of plant and site installations as per inventory made by Sir A. Gibb, Africa, lost during the civil war in Somalia. According to the Engineer's estimate the residual value of the lost plant and installations amount[s] to USD 7 923 791.'
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9 By letter of 11 December 1997, the applicant's lawyer asked the Commission what it intended to do about the claim for compensation. He also referred to the applicant's letters of 4 January 1991, 25 September 1991 and 7 April 1993.
10 By letter of 12 May 1998, the Commission rejected the claim.
Procedure and forms of order sought
11 By application lodged at the Registry of the Court of First Instance on 13 July 1998, the applicant brought the present action.
12 By document filed at the Registry of the Court on 30 September 1998, the Commission, pursuant to Articles 43 and 46 of the EC Statute of the Court of Justice (hereinafter 'the Statute') and Article 114 of the Rules of Procedure of the Court of First Instance, raised an objection of inadmissibility on the ground that the application was out of time.
13 The applicant lodged its observations on the objection of inadmissibility on 3 December 1998.
14 In its application, the applicant claims that the Court should:
— order the Commission to pay the applicant the sum of USD 7 923 791 together with interest thereon at a rate of 10% as from 25 September 1991;
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— order the Commission to pay the costs.
15 In its objection of inadmissibility, the Commission contends that the Court should:
— dismiss the application on the ground that it is out of time;
— order the applicant to pay the costs of the action.
16 In its observations on the objection of inadmissibility, the applicant claims that the Court should dismiss the objection of inadmissibility.
Admissibility
17 Under Article 114 of the Rules of Procedure, the procedure subsequent to the objection of inadmissibility is to be oral, unless the Court otherwise decides. In the present case, the Court considers that it has sufficient information from the documents in the file and finds that it should, consequently, adjudicate on the application without initiating the oral procedure.
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Arguments of the parties
18 The Commission has raised an objection of inadmissibility on the ground that the applicant has failed, within the time-limit laid down in the Statute, to bring a claim for compensation on account of the damage for which the Commission's non-contractual liability is incurred.
19 According to the Commission, the limitation period begins to run when all the damage allegedly suffered by the applicant is known. Given that the applicant stated the amount of the damage by letter of 25 September 1991 and claimed interest as from that date, the damage it has allegedly suffered had 'materialised' at that date and all the damage allegedly suffered was, therefore, 'known' to the applicant. 25 September 1991 should, consequently, be regarded as the latest date as from which the limitation period began to run. The Commission contends that that period thus expired five years later, namely on 25 September 1996.
20 In this case, the limitation period has not been interrupted. Under Articles 43 and 46 of the Statute, it can be interrupted only if proceedings are initiated before the Court or if prior to such proceedings an application is made by the aggrieved party to the relevant institution of the Community. However, in the latter event the proceedings must be initiated within the period of two months provided for in Article 173 of the EC Treaty (now, after amendment, Article 230 EC), and the provisions of the second paragraph of Article 175 of the EC Treaty (now Article 232 EC) are to apply where appropriate.
21 The harm allegedly suffered by the applicant, namely the loss of material and machinery, the costs of repatriation of staff and the repair costs, was caused, according to the Commission, by a single event. The Commission adds that the applicant cannot claim that the limitation period has been interrupted by the daily loss of interest. Such an interpretation would render Articles 43 and 46 of the Statute completely meaningless.
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22 The Commission contends, therefore, that, since the limitation has not been interrupted, it expired on 25 September 1996. The action brought on 13 July - 1998 by the applicant was thus initiated almost two years too late.
23 The applicant claims that, by its letters of 4 January 1991 and 7 April 1993, the limitation period provided for in Article 43 of the Statute was interrupted. It adds that non-compliance with the time-limit for bringing an action for failure to act cannot entail either loss of the benefit of that interruption or limitation of an action for compensation.
24 The applicant adds that the application for interest is not subject to limitation by virtue of the continuing nature of the corresponding harm and, therefore, prevents the effects of limitation from applying to the main application.
Findings of the Court
25 It is apparent from the second paragraph of Article 215 of the EC Treaty (now the second paragraph of Article 288 EC) that the Community may incur non contractual liability and the right to compensation for damage suffered may arise only if a series of requirements, namely the illegality of the alleged conduct of the institution, the reality of the damage and the existence of a causal link between the conduct of the institution and the alleged damage, have first been met (Case C-257/90 Italsolar v Commission [1993] ECR I-9, paragraph 33; and Case T-199/96 Laboratoires Pharmaceutiques Bergaderm and Goupil v Commission [1998] ECR II-2805, paragraph 48). The limitation period which applies to proceedings in matters arising from the liability of the Community, provided for in Article 43 of the Statute, which is applicable to the procedure before the Court of First Instance pursuant to Article 46 of that Statute, cannot begin to run before all the requirements governing an obligation to provide compensation for damage
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are satisfied and in particular before the damage to be made good has materialised (Joined Cases 256/80, 257/80, 265/80, 267/80 and 5/81 Birra Wührer v Counil and Cominission [1982] ECR 85, paragraph 10).
26 In this case, by letter of 25 September 1991, the applicant submitted its claim for compensation for the damage allegedly suffered in an amount of USD 7 923 791. In its originating application, the applicant claimed payment of that sum together with interest thereon as from 25 September 1991. It follows that it was at that date at the latest that the requirements governing the Community's obligation to provide compensation were satisfied and that the five-year limitation period began to run.
27 The applicant alleges, first, that the application for interest is not subject to limitation by virtue of the continuing nature of the corresponding harm and that it prevents, consequently, the time-barring of the main application.
28 That argument must be rejected. Since interest is calculated on the value of the damage at the date on which it materialised, the purpose of interest is merely to ensure updated compensation for the damage suffered. It is thus not to be confused with the event, within the meaning of Article 43 of the Statute, which constitutes the moment when the limitation period began to run. Furthermore, to admit that the limitation period does not run because of the daily loss of interest on the value of the damage alleged would render Article 43 of the Statute entirely meaningless, since actions against the Community in matters arising from liability would never be time-barred, even if the allegedly aggrieved party never brought proceedings. It follows that the daily loss of interest on the value of the damage, compensation for which is claimed before the Court, does not prevent the limitation period from running.
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29 The applicant then claims that the limitation period was interrupted by its letters of 4 January 1991 and 7 April 1993. However, it must be pointed out that those letters — in particular that of 7 April 1993, which post-dated the commencement of the limitation period — were not followed by proceedings initiated before the Court within the time-limits fixed by the articles to which Article 43 of the Statute refers. In Case 11/72 Giordano v Commission [1973] ECR 417 , paragraph 6, the Court of Justice clearly held that the limitation period is to be interrupted either by the application brought before the Court, or by a preliminary request addressed to the relevant institution, it being however understood that, in the latter case, interruption only occurs if the request is followed by an application within the time-limits determined by reference to Articles 173 and 175 of the Treaty, depending on the case.
30 Since the applicant did not follow up either of its letters of 4 January 1991 and 7 April 1993, sent to the Commission, with an application within the time-limits prescribed, the limitation period was not interrupted.
31 In the light of the foregoing, the action brought on 13 July 1998, namely after the expiry of the limitation period, must be dismissed as inadmissible.
Costs
32 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
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On those grounds,
THE COURT OF FIRST INSTANCE (First Chamber) .
hereby orders:
1. The application is dismissed as inadmissible.
2. The applicant shall, in addition to bearing its own costs, pay the costs of the Commission.
Luxembourg, 4 August 1999.
H. Jung B. Vesterdorf
Registrar President
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