C-167/99

B — The supplementary contract of 14 January 1999 I - 3276

III — Procedure and forms of order sought the parties I - 3277

IV — Appraisal I - 3280

A — Preliminary remarks I - 3280

B — Questions relating to admissibility I - 3281

(a)The objection of inadmissibility I-3281

D — Application of Clauses 3.2, 3.3, 5.1, 5.2, 5.3 and 6.3 of the framework

contract to the facts of the case I - 3293

1. Factual context I - 3293

2. Assessment I - 3296

(a) Preliminary remarks I - 3296

(b) Force majeure I - 3298

3. For various reasons the construction process was delayed with the result that the building was not completed until 2. Earlier, on 5 October 1992, the City of a l m o s t o n e y e a r after t h e d a t e of Strasbourg had decided to provide a site for 31 December 1997 laid down in the the buildings. The construction and oper- contract. SERS took the view that these ation of the building was awarded to SERS reasons justified a date later than that set by contract of 31 August 1993. SERS is a out in the contract. The Parliament took company known as a 'société d'économie the view that this was not the case. Initially mixte' and was established by the City of the disagreement centred primarily on the Strasbourg to develop and implement prop- interpretation of the provisions of the erty projects on behalf of the city. The framework contract relating to the date framework c o n t r a c t concluded on for completion, the penalties for late com- 31 March 1994 and the annexes thereto pletion, and the liability to interim interest govern mutual relations between the parties for the period between the contractual date during construction, when the new building for completion and the actual date of is completed and accepted, and following completion (15 December 1998).

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4. In order to settle their disagreements pean Parliament would enter into force over the actual date of the completion and from that date, subject to the con- acceptance of the building, and on the ditions laid down in that contract. contractual date for completion, the Par- liament and the City of Strasbourg con- cluded, on 14 January 1999, three agree- ments which were subsequently also signed by SERS on 19 January 1999. 5. On 22 March 1999 the committee of conciliators issued the opinion requested from it. The European Parliament, which did not agree with certain parts of this opinion, appealed against it by an action, There were: lodged at the Registry of the Court of First Instance, pursuant to Clause 1(2) of the addendum to the framework contract referred to at point 4 above.

'Work on the superstructure of the building is expected to start on 1 October 1994. —· strike affecting the site; SERS shall have an estimated period of 36 months to complete the building starting from that date.

— administrative or judicial decision or order ordering work to stop;

The period for completion within the meaning of this subclause shall, however, be extended appropriately in the event of delay duly justified by SERS. This shall — vandalism, bad weather, natural dis- apply inter alia in the event of: aster, war, terrorism, archaeological excavations;

— additional modifying work requested by the European Parliament; — failure to reply or delay in replying on the part of the European Parliament beyond three weeks from the date of communication.'

— delays in obtaining administrative authorisations attributable to the auth- orities responsible for examining or Clause 5.1 issuing them or to third parties;

'Even if the period of 36 months referred to — consequences of the p u t t i n g into in Clause 3.3 extends beyond the date administration or judicial winding up provided for in Clause 3.2, possibly post- of one (or more) of the parties con- poned under Clause 5.2, SERS shall be tracting with the main contractor; liable as from the date referred to in Clause

— force majeure or accidental occurrence duly confirmed; Clause 5.3

— decisions of an administrative or judi- 'The date provided for in Clause 3.2 does cial body ordering work to stop; not take account of additional or modifying

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OPINION OF MR GEELHOED — CASE C-167/99

works requested or accepted by the Euro- Clause 25 pean Parliament.

'The general timetable (Annex 6 to the contract) shall be observed and SERS shall ...' transmit, with its monthly progress report, the timetables for the construction work. Any delays must be stated and explained. In such an event SERS shall inform the European Parliament of adequate remedial measures which SERS intends to imple- ment, without prejudice to the application of Clause 5.' Clause 6.3

and solely to resolve the dispute on the of 21 April 1999. In that letter he pointed differences of interpretation and appli- out that the Court of First Instance did not cation of Clauses 3, 5, 6 and 25 of the have jurisdiction, by virtue of an arbi- framework contract as regards fixing tration clause, to give judgment pursuant to the contractual date of completion, a Article 181 of the Treaty (now Article 238 committee of conciliators shall be con- EC) on an action brought by an institution stituted in accordance with the pro- and subsequently informed the Parliament cedures laid down in the "Conciliation of his intention to transmit the action to the Protocol" attached as Annex I to this Registrar of the Court of Justice in accord- supplementary contract. ance with the first paragraph of Article 47 of the Protocol on the Statute of the Court of Justice, unless the Parliament stated by 3 May 1999 that it was in fact its intention to bring the case before the Court of First Instance. 2. The committee of conciliators shall issue an opinion on the abovemen- tioned dispute which, pursuant to the framework contract, shall be limited solely to questions of law. 9. On 28 April 1999 the Parliament con- firmed that it had no objection to its application being transmitted to the Regis- trar of the Court of Justice. Thereupon the application was finally lodged at the Regis- Both parties are bound to comply with try of the Court of Justice on 4 May 1999 this opinion without prejudice to their where it was registered the following day. right to appeal against this decision, within 30 calender days of its notifi- cation, before the court referred to in Clause 29 of the framework contract.'

13. On 24 January 2002 the parties were heard at the hearing. — order SERS to pay penalties for late completion from 9 January 1998, the contractual date for completion of the IPE IV building, until 14 December 1998 inclusive, the day before that 14. As regards the plea of inadmissibility, building was declared to be completed, the Parliament claimed that the Court or, in the alternative, order SERS to should: pay penalties for late completion from such contractual date for completion as the Court may decide;

— dismiss as unfounded the plea of inad- missibility;

— declare the delays after 9 January 1998, the contractual date for completion of — dismiss the application by the appli- the IPE IV building, unjustified, and, cants pleading inadmissibility for pay- accordingly, declare that the European ment of a procedural indemnity of EUR Parliament is not liable to interim 20 000; interest from that contractual date for completion of the IPE IV building until 14 December 1998 inclusive, or, in the alternative, declare that the European Parliament is not liable to interim — order the applicants pleading inadmis- interest from such contractual date for sibility to pay the costs; completion as the Court may decide;

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— annui the opinion of the committee of Parliament pursuant to Article 91 et conciliators; seq. of the Rules of Procedure of the Court of Justice;

17. As to the substance, SERS and the City — hold that the Court can rule only on of Strasbourg claim that the Court should: the principles of law applicable to the dispute, to the exclusion of any analysis of the facts and, a fortiori, that the Court cannot order or fix the date for completion since the case concerns questions of fact unconnected with — allow SERS and the City of Strasbourg the conciliation and outside the com- to bring a counterclaim against the petence of the Court, which is giving opinion of the conciliators, in so far as judgment on the basis of the devolutive the conciliators have taken the view effect of the Parliament's application; that the date for completion was 31 December 1997 and that this can be deferred solely on the grounds set out in Clause 5.2 of the standard contract; — confirm the opinion of the conciliators on points other than those which form the s u b j e c t - m a t t e r of the a c t i o n brought by SERS and the City of Strasbourg;

— rule that the time-limit of 31 December 1997 is merely a provisional time-limit which can be extended on any of the — order the European Parliament to pay grounds justified under any of the the costs of the proceedings and a provisions of Clause 3 which form an procedural indemnity of FRF 300 000. indivisible whole;

IV — Appraisal Furthermore, with regard to the application made by the European Parliament:

A ·— Preliminary remarks

— dismiss that application; 18. Three sets of questions have to be assessed in this case:

— hold that the Court has no other or no more power than the conciliators; — questions relating to admissibility;

(a) The objection of inadmissibility

(a) The formal objection of inadmissibility raised pursuant to Article 91(1) of the 21. The two pleas which SERS and the City Rules of Procedure by SERS and the of Strasbourg put forward in support of the City of Strasbourg against the action inadmissibility of the action brought by the brought by the European Parliament. Parliament can be summarised in brief.

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2 3 . Secondly, the Registrar of the Court of ment took account of the fact that this First Instance could not have transmitted application might have been addressed the file to the Registrar of the Court of incorrectly. Having regard to this possibil- Justice by an informal letter. This simple ity, the Parliament asked the Registrar of procedure, for which provision is made in the Court of First Instance to transmit the the first paragraph of Article 47 of the application to the Registrar of the Court of Statute of the Court of Justice (hereinafter Justice. If the Court of Justice takes the 'the Statute'), can be applied only in cases view that the transmission was not effected in which an application addressed to the properly in the present case, the Parliament Court of Justice is lodged by mistake with claims, in the alternative, that it should the Registrar of the Court of First Instance remit the case to the Court of First Instance

24. The Parliament's defence against the from the Court of First Instance to the first plea centres on the view that the way Court of Justice, the case has been duly in which the Court of First Instance and the brought before the second court, even if, on Court of Justice correct, between them- the date on which the order to refer the case selves, the actions brought before them has is adopted, the time-limit for bringing the no effect on the time-limit for bringing action has elapsed. I therefore conclude

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27. Furthermore, this interpretation is con- at the wrong registry but also cases in firmed by Article 3(6) of the Instructions to which an application is addressed by mis- the Registrar of the Court of First Instance take to the wrong registry when it is evident which states that where the Registrar of the prima facie that it should have been sent to Court of Justice transmits an application to the other registry. The procedure set out in the Registrar of the Court of First Instance, the first paragraph of Article 47 of the the date of lodging which must be entered Statute is by far the most appropriate in the register is the date on which the procedure for rectifying such 'technical' application was lodged with the Registrar mistakes. Thus, it is also employed in of the Court of Justice. Although there are practice by the Registrars of the Court of no specific instructions for the Registrar of First Instance and the Court of Justice. the Court of Justice in this respect, he follows the same procedure based on the second paragraph of Article 47 of the Statute. 31. The more rigorous procedure set out in the second paragraph of Article 47 of the Statute was intended for cases in which it is not evident at first sight that the appli- cation has been addressed incorrectly. In 28. Therefore, the first plea contesting the such cases it must, following a prior admissibility of the action brought by the examination, be declared by an order that Parliament is unfounded. the Court of First Instance (or, where applicable, the Court of Justice) docs not have jurisdiction to hear and determine the action.

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clause under Article 238 EC where an appeals against such a ruling with the action is brought by a Community institu- associated possibility that the final outcome tion. His intention in that respect to trans- will prove to be even less favourable to the mit the application to the Registrar of the party which initially acquiesced therein, it Court of Justice, in accordance with the follows from the principle of equality of first paragraph of Article 47 of the Statute, opportunity for the parties to proceedings was the logical consequence thereof. that the latter party must also be granted an opportunity to raise objections to the binding opinion contested in the appeal.

33. Therefore, the second plea contesting the admissibility of the action raised by the Parliament is also unsuccessful.

36. In this connection I also refer to the second indent of Article 116(1) of the Rules of Procedure which in appeal proceedings (b) Admissibility of the counterclaim grants defendants a similar p o w e r to brought by SERS and the City of Stras- counterclaim. 3The case-law of the Court bourg confirms that such a counterclaim is poss- ible even if the initial time-limit for an appeal has lapsed. 4I therefore conclude that the counterclaim brought by SERS and the City of Strasbourg, which, moreover, is 34. I consider untenable the plea raised by consistent with the pleas raised before the the Parliament alleging that the counter- College of conciliators, is admissible. claim brought by SERS and the City of Strasbourg against the opinion of the com- mittee of conciliators is inadmissible on the ground that it is belated in that it was not lodged at the Registry until 8 March 2000.

39. Under the first paragraph of Clause 1.1 of the supplementary contract the parties agreed to refer to a committee of concili- ators questions of law on which they disagreed regarding the interpretation and 42. Moreover, the questions of law relating application of Clauses 3, 5, 6 and 25 in to the interpretation and application of the relation to fixing the contractual date for framework contract which were submitted completion. Under the second paragraph of to the committee of conciliators are, in Clause 1.2, they are bound by the opinion terms of substance, very closely linked to the form of order sought by the Parliament in which it claims that the Court should 5 — The question whether the Court has jurisdiction to hear and give judgment on the date on which the determine a counterclaim and to consider whether it is admissible must he assessed solely in the light of Article 238 new building should have been completed EC and the Rules of Procedure. See, to that effect. Case 426/85 Commission v Zoubek 11986| ECR 4057, paragraph under the framework contract and the 10. As regards French law, see A. de Laubadère, F. Moderne and P. Dclvolvé, Traité des Contrats Administratifs, Volume associated legal consequences arising from 2, 2nd ed., Paris 1984, p. 1027. Clauses 5.1 and 6.3 thereof.

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43. I therefore take the view that in these 45. As regards the first question, there was proceedings the Court may, without restric- a fundamental difference of interpretation tion, examine and rule on the substantive between the Parliament and SERS which claims raised by Parliament. was summed up in section V.2 of the opinion of the committee.

PARLIAMENT v SERS AND VILLE DE STRASBOURG

the construction process and the additional — secondly, the contract sets out grounds period which had been granted to SERS on for extension which differ in them- condition that it was duly justified by one selves as regards the extension of the of the grounds for extension, open to broad provisional time-limit and the defer- interpretation, set out in Clause 3.3. ment of the date for completion;

— thirdly, the contract consistently links 47. In the view of SERS, the provisions of the date for completion fixed in Clause Clauses 3.3 and 5.2 must be applied 3.2 to the grounds for deferment cumulatively to fix the contractual date thereof set out in Clause 5.2. This is for completion. It takes the view that the the case inter alia in Clauses 5.2, 6.3, date for completion is in reality specified in and 7.2; Clause 5.1 since it refers to 'the 36-month period referred to in Clause 3.3'. This interpretation is effectively that the con- tractual date for completion must be fixed on the basis of the 36-month period from 1 October 1994, supplemented by a fixed — and fourthly, Clause 5.1 provides that: period of three months, all of which may possibly be extended on the grounds for extension listed in Clauses 3.3 and 5.2.

'même au cas 6où le délai de 36 mois visé à l'article 3.3 dépasserait la date prévue à l'article 3.2 éventuellement prorogé[e] 7 en vertu de l'article 5.2, la 48. In this regard, the committee held in SERS sera redevable, à partir de la date section V.3 of its opinion that the relevant visée à l'article 3.2 éventuellement parts of the contract had to be interpreted prorogé[e] 8 en vertu de l'article 5.2, in a manner which avoided certain terms de plein droit et sans formalité, d'une being rendered meaningless or regarded as pénalité...' redundant. This led to the committee finding as follows:

fere with the interpretation of this provi- the exemption from liability to interim sion but which the parties agree is a interest is subject to a two-fold condition: mistake, this provision could have no meaning other than the following: any completion of the building [after] the time- limit laid down in Clause 3.2, possibly extended on the grounds for extension set — one, that the actual date of the com- out in Clause 5.2, give rises to payment of pletion of the building must be later penalties for delay provided for in the than the contractual date for comple- contract even if the provisional time-limit tion; laid down in Clause 3.3 has been exceeded on the legitimate grounds for extension set out in Clause 3.3 but not reproduced in Clause 5.2. Consequently, the provisions of Clause 5.1, in conjunction with the provi- — two, that the discrepancy must be sions which associate Clause 3.2 (date for attributed to fault on the part of SERS completion) with Clause 5.2 (grounds for or result from a delay which is not deferment of the date for completion), accepted as justified by the court require that a distinction be drawn between referred to in Clause 29. the provisional date set out in Clause 3.3 and the date for completion. On the basis thereof the committee of conciliators con- siders that the contractual date for com- pletion is that of 31 December 1997, The committee of conciliators takes the possibly deferred on the sole grounds for view that a 'fault' on the part of SERS must deferment set out in Clause 5.2. The be understood as meaning a personal fault penalties for delay are due as from that on the part of that organisation with the date. exception of those attributable to its co- contractors or sub-contractors. As regards use of the phrase 'delays which are not regarded as justified by the court referred to Clause 29', the committee considers that the parties must seek a connection with the grounds for deferment listed in Clause 3.3, in so far as they are broader than those set out in Clause 5.2.

of the contractual date for completion abovementioned time-limit for completion under Clauses 3.2 and 5.1 of the frame- of the building. Taking 31 December 1997 work contract. as the starting date for the application of Clause 5.1, read in conjunction with Clause 5.2, leads to the paradoxical result that SERS can complete the building after that date under the framework contract and 51. They maintain their view, which they nevertheless owe penalties for delay. had also set out previously before the committee of conciliators, that the contrac- tual date for completion should be deter- mined from the 36-month construction period referred to in Clause 3.3, increased by the fixed three-month period which could subsequently be extended on the grounds for delay listed in Clauses 3.3 54. The Parliament, which concurs with and 5.2. This view is essentially based on the opinion of the committee of concili- their interpretation of Clauses 3.2 and 3.3, ators in section V.3 of the opinion, con- in accordance with which the consistent use tends that it is clear from Clause 5.l that of the term 'prévu' (expected to) indicates the date of 31 December 1997 is hard and that the date of 31 December 1997 is only a fast. This follows from the automatic 'date prévisionelle' (provisional date) application of the penalty provided for by which, consequently, is incapable of con- this clause where this date is exceeded. The stituting a binding and irrevocable date for fact that this date can be deferred under completion. Clauses 5.2 and 5.3 does not alter the unconditional nature thereof. That is because even the extensions to the date for completion made possible by these p r o v i s i o n s are calculated from 31 December 1997. 52. They contend, moreover, that this interpretation is confirmed by the list of legitimate grounds for extending the pro- visional 36-month construction period which, in view the use of the term 'not- amment' (in particular) in the opening paragraph, is not exhaustive. 55. The Parliament points out that the committee of conciliators has stated few reasons for the interpretation it placed on Clause 6.3 of the framework contract. 5 3 . A c c o r d i n g to this i n t e r p r e t a t i o n , Under the final paragraph of Clause 6.3, according to which the date for completion no liability to interim interest exists in the of 31 December 1997, which is described event of delay — that is to say completion as 'prévisionelle', can be deferred on the after the contractual date for comple- grounds set out in Clause 3.3, Clause 5.1 tion — which is either a result of a fault can be interpreted as meaning that the on the part of SERS or a delay which is not- penalties for delay are due only where no accepted as justified by the court referred to legitimate ground exists for extending the in Clause 29.

— SERS notified the Parliament of any possible ground for delay recognised in 59. SERS and the City of Strasbourg con- Clause 5.2, and did so as soon as it tend that there is no a u t o m a t i c link arose, and thereby sought to reach between the penalties for delay and exemp- agreement on a specific period by tion from payment of interim interest which the contractual date for com- referred to in Clause 6.3 of the framework pletion is deferred; contract. They claim that such exemption is applicable only where fault on the part of SERS can be proven and where the court having jurisdiction does not deem justified the grounds for delay. With regard to the first condition, the committee of concili- ators correctly took the view that the Parliament must prove the existence of — this specific period was fixed by mutual fault on the part of SERS and that the fault consent; must be attributable to SERS itself. More-

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62. Clause 3.2 stipulates 31 December 9 — Italics added. 10 — In this connection see also, for example, Clause 5.1: 'la 1997 as the final date for completion of date prévue à l'article 3.2'. the building. The fact that this is not a 11 — I therefore concur with the committee of conciliators that the word 'prorogé' refers to 'la date prévue' and must provisional date but a 'hard and fast' therefore be read as prorogée.

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65. If this date were only conditional in 68. Therefore, I conclude that the counter- nature, and could be deferred on any of the claim brought by SERS and the City of grounds referred to in Clause 3.3, as the Strasbourg against section V.3 of the defendants contend, the penalty clause opinion of the committee of conciliators is would have, from the outset, been rendered unsuccessful. meaningless as a sanction for exceeding the contractual date. However, the wording of Clauses 5.1 and 3.3 provides no grounds at all for such an interpretation contrary to the purpose of the clause. 69. The Parliament's arguments against section VIII of the opinion of the above- mentioned committee are likewise uncon- vincing.

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or D — Application of Clauses 3.2, 3.3, 5.1, 5.2, 5.3 and 6.3 of the framework contract to the facts of the case

— it must be deemed unjustified by the court referred to in Clause 29.

1. Factual context

73. I do not agree with the Parliament that only the grounds listed in Clause 5.2 should be deemed 'justified' and that it must therefore be concluded a contario that 77. The file shows that a number of inci- other grounds must be deemed to be dents occurred after the signing of the unjustified. framework contract which affected the progress of the construction work. Accord- ing to the file, some of these incidents formed the subject-matter of an exchange of correspondence which was sometimes 74. On the contrary, the possible grounds followed by closer consultation between for or causes of delay in completion follow- the Parliament and SERS. In other cases ing the contractual date for completion this was not so. This is evident primarily must be assessed separately in order to from the documents exchanged before the establish whether or not they disclose fault committee of conciliators. on the part of SERS or are otherwise justified.

79. However, in its statement of 2 March 1999 to the committee of conciliators, SERS stated however that the final call for tenders had not taken place until 2 February 1995 and that the actual work 82. The Parliament responded to this cor- on the construction site commenced on respondence by letters of 18 March, 3 April, that is to say with a delay of more 25 March, 21 June, 10 July and 18 July than six months. As a result, it requested an 1996. In each of these letters it stated that extension of the construction period of 128 extension of these time-limits was not working days. automatic but required mutual consent. Furthermore, any delay as a result of weather conditions had to be duly justified. In these letters SERS was invited to state in which respect and to what extent the weather conditions had affected the work and what the effects thereof had been on 80. In the same document SERS states that the general progress of construction. one of the undertakings to which a pro- portion of the work had been awarded, namely DRE-Lefort-Francheteau, decided after the award not to content itself with the agreed price and, on the pretext that no valid agreement had been entered into, decided to cease work on the construction 83. A much later letter from the Parliament site on 6 September 1995. The need to issue to SERS dated 10 December 1997 shows a fresh call for tenders resulted in a delay of that it was agreed in December 1997 that 53 working days. The other documents in talks would be held to establish whether a the file do not show that the Parliament compromise could be reached on extending was informed of this incident in good time. the time-limits. As far as can be ascer- tained, these talks did not produce any result.

86. In the statement which SERS presented to the committee of conciliators it also mentioned specific delays due to: 87. Two reports by the engineering firm Bovis, which advised the Parliament during the construction process, are also relevant to the factual context. The first report of 20 August 1997 states that the number of personnel on the construction site was far too inadequate to enable the work to be — default by subcontractors: 106 work- completed by the then provisional date for ing days; completion of mid-April 1998. This gave the Parliament cause to express its concern in this regard to SERS and the City of Strasbourg by letters of 16 September 1997 and to urge that the necessary steps be taken to ensure that the exceeding of the time-limit remained limited. — strike action: 4 working days;

8 8 . T h e s e c o n d B o v i s r e p o r t of 19 November 1997 found that the delay — consequences of bad weather and road in the work schedule had increased and closures due to frost: 16 working days: that, at the present work rate, even the date

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91. Even though it must be conceded that 89. In the meantime the Parliament had these facts and circumstances constitute pointed out to SERS, by the letter of legitimate grounds for applying either 10 December 1997 referred to at point 83 Clause 3.3 or Clause 5.2, it is not possible above, that the contractual period for to determine, on the basis of the factual completion would expire on 31 December information contained in the file, the extent 1997. In this letter the Parliament also to which they actually affected the progress observed that SERS' letters giving notice of of work on the construction site. adverse weather conditions could not alter this fact because no or insufficient reasons for the delays had been stated therein. Furthermore, in the absence of an agree- ment in that respect between SERS and the 92. The foregoing also applies to delays Parliament, as referred to in Clause 5.2 of connected with adverse weather conditions. the framework contract, the date of Although the file contains extensive cor- 1 January 1998 had to remain the con- respondence in this regard, the documents tractual date for completion. submitted with it provide insufficient infor- I - 3296

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mation to be able to establish whether, and the undermanning on the construction site if so to what extent, these events and and the delays which could be expected as a circumstances actually delayed the con- consequence. struction work. I shall return to this matter below.

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3. natural disaster, war, terrorism, (b) Force majeure archaeological excavations;

98. In French academic writing on adminis- trative law the concept of force majeure is characterised by three elements:

4. bad weather recognised by the Caisse des congés payés du bâtiment de Stras- bourg;

— extériorité, meaning that the event is beyond the control of the party by whom it is pleaded;

99. The first event invoked by SERS which 102. Although by its letter of 20 December can be regarded as force majeure is the 1994 SERS informed the Parliament that it- failure of the first call for tenders which it would meet the time-limits laid down in the claims gave rise to a delay of 128 working framework contract despite the delays days. which had occurred, the committee docs not regard this letter as decisive. It takes the view that the factors which are decisive in a case of force majeure are objective in nature. Therefore, they must be assessed per se, irrespective of the, possibly incor- rect, appraisal thereof by one of the parties to the contract at a time when all the 100. In that respect the committee of con- consequences of this event may not yet be ciliators observed in its opinion that this clear. event had been beyond the control of SERS. Moreover, this event had been unforeseen because SERS, as the contracting authority, could not have reasonably expected that potential tenderers would commit an offence by entering into a price-fixing agreements. 103. On the basis of this reasoning, the committee takes the view that the parlies must agree subsequently to make a joint assessment of the effects on the progress of the construction process of the failure of the first call for tenders. On the basis of this assessment they will then have to determine whether, and to what extent, this event can 101. As far as the committee of conciliators serve as a ground for deferment of the is concerned, the principal difficulty has to contractual date for completion (point do with the avoidability of the con- VII.1A.2(a) of the opinion). sequences of the failure of the call for tenders. It notes that this resulted in the commencement of the work being delayed for approximately six months and that such delay is difficult to make up in an overall construction period of 36 months. In that connection it points to the statement by the 104. The Parliament disputes this view of Parliament's representative that the failure the committee, putting forward the follow- of the first call for tenders could possibly ing arguments: have given the Parliament grounds to defer the contractual date for the commencement of work and thus to defer accordingly the contractual date for completion if SERS had requested that it do so. The committee also points to the fact that the fresh call for — SERS' request for 128 working clays to tenders was beneficial for the Parliament be taken into account to defer the because it enabled the building costs to be contractual date for completion was reduced considerably. belated. It was not until after the

conciliators were appointed, that is to 106. It is evident from the documents in the say long after the actual event had case file that the failure of the first call for occurred, that the Parliament was tenders for the basic structure was notified informed thereof; to the Parliament and that that event resulted in consultations between the parties. In its letter of 6 October 1994 the Parliament expressed its concern at the situation which arose from the failure of the first call for tenders. In that letter the Parliament stressed the need to observe the time-limits laid down in the framework — the fact that SERS itself conceded in its contract, otherwise the contractual pen- letter of 20 December 1994 that, des- alties for delay would apply. pite the failure of the first call for tenders, the time available to it to complete the building was entirely adequate for it to fulfil its contractual obligations concerning the date for completion. Furthermore, the delay which is now being invoked is nowhere 107. SERS's response thereto in its letter of to be found in the monthly reports on 20 December 1994 sought to dispel the the work timetable. For example, it is Parliament's concern. In that connection, evident from monthly report N o 34 of the express statement was made that 'the 6 February 1997 — that is to say less deferment resulting from the resumption of than 11 months prior to the contrac- consultations should remain well within the t u a l d a t e for c o m p l e t i o n — t h a t time-limits laid down in the framework according to the work schedule of contract'. It reveals no reference to any 31 October 1996 no case of the time- delay justified under Clause 5.2. limits being substantially exceeded was foreseen even though delays other than that in question had already arisen by that time. In the light thereof it cannot be maintained, as the committee does, t h a t SERS gave, in its letter of 20 December 1994, an incorrect assess- 108. Furthermore, the general timetable of ment of the effects of the failed call for 1 January 1995 submitted by the Parlia- tenders. ment shows that at that time, that is to say over six months after the failure of the first call for tenders, the plan still provided for completion of the works for the month of October 1997 at the latest.

112. Even if it were assumed that force majeure was invoked in good lime, I consider incorrect the committee of con- 110. In this respect I should first note that, ciliators' view that in the given circum- according to established case-law of the stances the effects of the failed call for French Conseil d'État, the contractual tenders were such that SERS could not have clauses concerning force majeure must be dealt with them adequately in its letter of complied with strictly. W h e r e force 20 December 1994. This letter was written majeure is not invoked in good time, the over six months after the event had party concerned can no longer invoke it in occurred and at a time when preparations relation to the other contracting parties. 14 for the second call for lenders were already so advanced that the consequences, in terms of time, for the construction process could easily have been assessed. The gen- eral work schedule referred to at point 108 above confirms that fact. In the light thereof it cannot be argued that the effects of the failure of the first call for tenders prevented SERS from meeting the contrac- 111. Although SERS informed the Parlia- tual date for completion in an unavoidable ment of the failure of the first call for and insuperable manner. tenders in good time, there is nothing in the documents to show that it invoked in any respect force majeure at that time. On the contrary, it can be concluded that, irre- spective of the effects thereof, this event gave it no cause to do so. Under these 113. In the light of the foregoing, I consider circumstances, the invocation of force that SERS' invocation of force majeure on majeure before the committee over four account of the failure of the first call for years later can be regarded as nothing other tenders for the basic structure is belated, than belated. That is because, under Clause inadmissible and, in the a l t e r n a t i v e , 5.2 of the framework contract, any events unfounded. on account of which the grounds set out in this provision are invoked to defer the contractual date for completion must be notified immediately. Although the events

116. However, the committee makes an exception in the case of the group DRE- Lefort-Francheteau on account of the par- 119. The Parliament disputes this section ticular circumstances in which it arose. In of the opinion in so far as it relates to the this case an undertaking refused to sign the group DRE-Lefort-Francheteau. It puts relevant contract after it had been awarded forward two arguments in this respect. the work. As the contracting authority Firstly, it follows from Clause 24 of the SERS cannot have foreseen such an occur- framework contract that the contracts rence. Therefore, it can be regarded as force concluded by SERS are a direct result of majeure if the parties concerned regard as the call for tenders which it carried out. insuperable the substantial delay which Consequently, the refusal by an undertak- results from it. They must come to an ing to sign the contract for which its tender agreement in this respect. had been accepted by the contracting authority amounted to a form of default which did not differ in any way from other forms of default. In such a situation SERS should, as in any other case in which an undertaking leaves the construction site, have ensured that the undertaking con- 117. However, if the parties do conclude cerned was replaced, subject to the con- that a case of force majeure has arisen in ditions laid d o w n in the framework this case, the committee takes the view that contract.

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120. Secondly, the Parliament notes that and therefore can be foreseen by the con- SERS brought an action for compensation tracting authority (maître de l'ouvrage), against the abovementioned group. It is and which it can consequently take into therefore evident that this case relates not account when entering into obligations to to force majeure but to wrongful conduct achieve a result in respect of the date for on the part of third parties. completion, the occurrence of such an eventuality cannot, irrespective of the par- ticular circumstances, provide grounds for invoking force majeure.

122. As to the substance, I take the view that this case cannot be regarded as con- 125. As regards the other two cases in stituting force majeure. Although it is which SERS invoked force majeure, that is rather unusual for an undertaking to fail to say strike action and road closures due to to fulfil the obligations stemming from a frost, I can be brief. In this regard the completed tendering procedure in the way committee of conciliators stated at points that the group DRE-Lefort-Francheteau VII.A.2(b) and (c) that this could be has, it does not differ fundamentally from accepted only in exceptional circumstances. the way in which undertakings involved in Furthermore, the file does not show that a construction project otherwise default. Since default by undertakings can, as such, occur frequently in the course of large 15 — See A. De Laubadère, F. Moderne andP.Devolvé,loc. cit. p. 733; idem F . Llorens, loc. cit. p. 510 to 512 (cited construction projects for whatever reason, in footnote 12).

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SERS informed the Parliament thereof in de Strasbourg. The committee goes on to good time with a view to invoking Clause state that it is an implicit condition for the 5.2 or that any consultations on the matter application of Clause 5.2 that the events were held between the parties. referred to therein must genuinely affect the actual progress of the work.

126. In any event, as SERS did not present to the committee or the Court any par- ticular circumstances which could provide grounds for these invocations of force majeure, I take the view that they are in any event unfounded. 129. Therefore, the parties should agree to examine what the actual effects of the bad weather recognised by the Caisse des congés payés du bâtiment de Strasbourg were on the progress of the construction project.

131. The Parliament contends that SERS' lesser extent. It is also the case that, as view is also substantively incorrect. Not construction progresses, the vulnerability every situation in which bad weather of the project to bad weather decreases. occurs results in the work as a whole Normally, a building will first be made having to be suspended. Therefore, con- rain-proof, then wind-proof, and finally sultations between the parties must deter- frost-proof. In this respect it should be mine what the actual effect has been on the noted that the construction process per sc progress of the work. can be made more or less vulnerable to bad weather, depending on precautionary measures taken. Finally, the effect of delay on account of bad weather must be assessed on the basis of the extent of the delay in relation to the overall work on the con- struction site and the impact thereof on the 132. It is a generally recognised fact that critical timetable of the project. construction work in the open air is vulner- able to bad weather such as frost and snow, heavy rainfall and strong winds. Clauses governing the effects of bad weather are therefore part and parcel of construction contracts. In this regard Clause 5.2 of the framework contract is not unusual. 135. In the light of the foregoing, a through analysis of each case of delay on account of bad weather which occurs is necessary in order to be able to assess whether and, if so, to what extent there are grounds for 133. I concur with the committee of con- invoking it in order to obtain deferment of ciliators that Clause 5.2 contains the impli- the contractual date for completion. The cit condition that the mere occurrence of provision in Clause 5.2 of the basic- delay on account of bad weather per se contract under which the parties must agree does not automatically provide grounds for on this matter is effective and necessary in extending the contractual period for com- this respect. pletion. Only the actual effects of the bad weather on the building process are of relevance.

138. I am unable to assess how complete the file is. However, it is clear that, as it has been presented to the Court, it does not enable it to give a well-founded, even approximate, judgment on the factual questions to be answered before it can address the question of the extent to which the adverse weather conditions cited by The parties will have to provide the expert SERS provide grounds for application of with all information he needs to form his Clause 5.2 of the framework contract. opinion.

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(e) Additional work and modifications (Clause 5.3 of the framework contract) 145. The Parliament disputes this view, contending that the relevant fiche provides no indication as regards the resultant delay. Furthermore, in the view of the Parliament, 142. Under Clause 5.3, additional work or the work to carry out the modifications modifications requested or accepted by the requested did not in fact give rise to any Parliament are to be regarded as separate delay. grounds for deferring the date for com- pletion. In respect of any such modifica- tions the additional time-limits for the contractual completion of the building are to be laid down in accordance with the procedure laid down in the protocol attached as Annex 5 to the framework contract. 146. I consider that the Parliament's view is untenable. On reading the relevant fiche modificative PEU 008, a copy of which the Parliament submitted as Annex XVIII to its application, it can be seen, under the heading 'anticipated delay', that the delay 143. Under that protocol, SERS must resulting from this work will, as regards the inform the Parliament of the effects which critical timetable, be the same as the period

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which expired between 31 August 1995 (f) Application of Clause 6.3 of the frame- and the date on which the fiche approved work contract by the Parliament was returned to SERS. The Parliament's Director-General for A d m i n i s t r a t i o n signed this fiche on 26 September 1995. It was returned to SERS on 28 September 1995. The Parlia- ment expresses no reservation in the fiche 149. As I concluded at point 71 above, it itself or on any attachment to it. follows from the final paragraph of the framework contract that the Parliament is exempt from the liability to interim interest from the contractual date for completion as ultimately fixed by the combined appli- cation of Clauses 3.2 and 5.1 read in combination with Clauses 5.2. and 5.3.

155. Since there are no manifest and con- sequential grounds for a further deferment of the date for completion as fixed pursuant to Clauses 5.2 and 5.3, I consider that the Parliament is exempt from its liability to interim interest from that dale which must- be determined more precisely. 153. I am likewise unable to find in the file any bases for concluding that, when it became clear that the building would be completed — far — beyond the date of 31 December 1997, SERS took the initi- ative to start consultations with the Parlia- ment on the difficulties it was having finishing the building. It merely invoked the grounds for deferment listed in Clause 5.2 without consulting the Parliament further. (g) Costs

154. In that connection I consider particu- larly relevant the letters of 16 September 156. In their objection of inadmissibility 1997, 6 April and 5 May 1998 in which the SERS and the City of Strasbourg claimed Parliament expressed, apparently with that the Court should order the Parliament good reason, its concern over the effects to pay the costs and a procedural indemnity that this might have on the scheduled and of EUR 20 000. In their applications as to increasingly deferred date for completion. the substance they claimed that the Court They went unanswered or at least did not should order the Parliament to pay the result in a noticeable response in SERS' costs and a procedural indemnity of FRF actions as the contracting authority. Mean- 300 000.

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157. The Parliament contended that the ated their applications with facts and Court should order SERS and the City of arguments and the course of the proceed- Strasbourg to pay the costs. ings provides no grounds for any complaint against the Parliament, these applications must be dismissed.

PARLIAMENT v SERS AND VILLE DE STRASBOURG

(b) The counterclaim by SERS and the City of Strasbourg against the opinion of the committee of conciliators is admissible.

(c) The action by the Parliament is also admissible in so far as it goes beyond the appeal against the opinion of the committee of conciliators.

2. Substance

(a) The contractual date for completion of the IPE IV building is that of 31 December 1997, as possibly deferred on the grounds set out in Clauses 5.2 and 5.3 of the framework contract between the European Parliament, on the one hand, and SERS and the City of Strasbourg, on the other. Therefore, the counterclaim brought by SERS and the City of Strasbourg against point V.3 of the opinion of the committee of conciliators is unfounded.

(b) Under the final paragraph of Clause 6.3 of the framework contract, the period during which the Parliament is exempt from its liability to interim interest commences on the contractual date for completion as fixed pursuant I-3311

—the failure of the first call for tenders for the basic structure of the IPE IV building;

—default by the undertakings involved in the construction, including by the group DRE-Lefort-Rocheteau;

—strike action;

—road closures due to frost. I-3312

PARLIAMENT v SERS AND VILLE DE STRASBOURG

(d) SERS and the City of Strasbourg may invoke bad weather as referred to in Clause 5.2 of the framework contract. The Court should, by way of interim judgment, appoint an expert to advise it on the following questions: