Official Journal of the European Union

Series C

C/2023/47

9.10.2023

(Case T-356/23)

(C/2023/47)

Language of the case: English

Parties

Applicants: Axima Concept (Courbevoie, France), Ineo Nucléaire (Lyon), Exyte France (Aix-en-Provence) (represented by: S. Saif, P. Partsch and P. Paschalidis, lawyers)

Defendant: European Joint Undertaking for ITER and the Development of Fusion Energy

Form of order sought

The applicants claim that the Court should:

—declare that the claim for compensation under notices of claim 48 and 72 due to the delay incurred to the Project, the claim for additional compensation for work carried out due to Ordre de Service 36, and the claim for compensation due to partial termination, by the European Joint Undertaking for ITER and the Development of Fusion Energy (‘F4E’), of contract no. F4E-OPE-30 through Ordre de Service 118 are admissible;

—declare that pursuant to contract no. F4E-OPE-30, F4E is liable to compensate Omega Consortium for loss suffered as a result of delays in the performance of works caused by F4E;

—declare that pursuant to contract no. F4E-OPE-30, F4E is liable to compensate Omega Consortium for the execution of additional work performed in compliance with F4E's instruction Ordre de Service 36;

—declare that Ordre de Service 118 constitutes an unlawful partial termination of the contract no. F4E-OPE-30;

—order F4E to pay to Omega Consortium EUR 15 732 201,65 in compensation for the costs incurred as a result of delays in the Project due to F4E's conduct, together with interest on such amount in accordance with Article 1231-6 of the French Civil Code, calculated from the dates set out below until payment has been made in full:

–interest on EUR 4 678 821 from 11 December 2020;

–interest on EUR 5 176 778 from 11 May 2021; and

–interest on EUR 5 876 602,65 from 5 May 2022;

—order F4E to pay to Omega Consortium EUR 1 931 452,11 in compensation for the additional costs incurred due to the implementation of Ordre de Service 36, together with interest on such amount in accordance with Article 1231-6 of the French Civil Code, calculated from 11 May 2021 until payment has been made in full;

—order F4E to pay to Omega Consortium EUR 3 639 284,85 in compensation for the costs incurred due to Ordre de Service 118, together with interest on such amount in accordance with Article 1231-6 of the French Civil Code, calculated from 30 July 2021 until payment has been made in full; and

—order F4E to bear its own costs and the costs of Omega Consortium relating to the dispute.

Pleas in law and main arguments

In support of the action, the applicants rely on three pleas in law.

1.First plea in law, alleging multiple breaches of contract no. F4E-OPE-30 by F4E during the period from 31 December 2017 to 11 July 2021, resulting in delays in the performance of Omega Consortium's works:

—the ITER Project is a deeply troubled project, beset by delays and budget overruns, with F4E being known for a culture of overwork, stress and abusive management. Labor unions on the ITER Project have described F4E (in a letter to the European Commission) as an organization suffering from ‘enormous workload and pressure on staff, the disproportionate use of external resources undermining the long term sustainability of the organization, the lack of trust in the Director and the Senior Management, the dysfunctional and non-transparent internal decision-making, and the overall weak management practices’;

—the situation has impacted numerous individuals and companies working on the ITER Project, including Omega Consortium. Insofar as these issues concern contract no. F4E-OPE-30, they are to a large extent attributable to the experimental nature of the ITER Project and F4E's mismanagement of that contract, originally conceived as a fast-track, design-and-build construction contract, allowing for minimal design interference from F4E. Instead, F4E has instructed an extreme number of changes and has (contrary to the nature of contract no. F4E-OPE-30) taken an active role in the design of Omega Consortium's works, enabled by its assumption of the role of the engineer under contract no. F4E-OPE-30, which should have been an independent third party. This has led to continuous design revisions in parallel with construction, causing Omega Consortium to suffer substantial delays in the execution of its works and incur costs, for which Omega Consortium is entitled to compensation. Despite this, for almost five years, F4E has misused its position as ‘independent’ engineer to withhold such compensation from Omega Consortium.

2.Second plea in law, alleging that a compensation should be paid to the applicant for additional work performed in execution of F4E’s instruction Ordre de Service 36. Omega Consortium has executed the works and incurred additional costs. Accordingly, Omega Consortium is contractually entitled to compensation.

3.Third plea in law, alleging that the partial termination of contract no. F4E-OPE-30 through F4E's instruction Ordre de Service 118 is unlawful. In July 2021, F4E terminated the scope of works being carried out by Omega Consortium's member Exyte in order to have the works carried out by other contractors, in complete disregard of the abovementioned contract. As a result, Omega Consortium is entitled to compensation for the costs incurred as a result of the termination, in addition to a termination fee under the said contract.

ELI: http://data.europa.eu/eli/C/2023/47/oj

ISSN 1977-091X (electronic edition)