8.8.2022

EN

Official Journal of the European Union

C 303/52

(Case T-355/22)

(2022/C 303/67)

Language of the case: Spanish

Parties

Applicant: Aitana Actividades de Construcción y Servicios, SL (Alicante, Spain) (represented by: A. Martí Martín, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Form of order sought

The applicant claims that the General Court should:

—uphold the application of the rules governing the contract (Royal Decree-Law 3/2022). (<span class="oj-super">1</span>)

—uphold the right of Aitana Actividades de Construcción y Servicios, SL (Aitana ACS, SL) to a review of the prices set out in the contract, pursuant to the doctrine of Rebus Sic Stantibus (unforeseeable risk).

—uphold the right of Aitana ACS, SL to a review of the prices set out in the contract, pursuant to the principle of legitimate expectations.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

1.First plea in law, based on the supplementary application of Spanish law, as the law governing the contract.

—In that regard, the applicant submits that Clause I.10.1 of the contract declares Spanish law to be applicable on a supplementary basis. Royal Decree-Law 3/2022 of 1 March is of supplementary application. It is appropriate to uphold the right to a review of the prices set out in the contract, pursuant to the provisions of Royal Decree-Law 3/2022.

2.Second plea in law, alleging that the contract prices should be updated, pursuant to the Principles and Rules of the European Union

—In that regard, it is argued that unforeseeable risk, which produces excessive hardship for one party, should lead to a renegotiation of the contract. The situation of the Sars Cov 2 pandemic, and the war between the Ukrainian and Russian nations are clearly an unforeseeable risk. Such situations have produced an extraordinary increase in the prices of materials, which Aitana ACS, SL should not bear exclusively.

3.Third plea in law, alleging that the recognition of the right to a price review does not constitute breach of contract, nor does the principle of transparency and free competition.

—In that regard, the applicant submits that the clause restricting price review does not include force majeure or unforeseeable risk. The extension of contractual liability to cases of unforeseeable circumstances requires express acceptance, which has not been given. The principles of transparency and free competition are not infringed by a price update, within the terms of Article 172 of Regulation 2018/1046. (<span class="oj-super">2</span>)

4.Fourth plea in law, alleging that the right to an update of the contract prices should be recognised, pursuant to the principle of legitimate expectations.

—In that regard, the applicant points out that the European Patent and Trade Mark Office recognised the appropriateness of the review of the prices set out in the contract. By virtue of that recognition, performance of the contractual obligations was maintained. The principle of legitimate expectations requires EUIPO to recognise the right to a price review.

(1) Royal Decree Law 3/2022 of 1 March on measures to improve the sustainability of road freight transport and the functioning of the logistics chain, and transposing Directive (EU) 2020/1057 of 15 July 2020 laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector, and exceptional measures concerning the review of prices set out in public works contracts (BOE 2022, No 52, p. 24298).

(2) Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).