10.1.2009

EN

Official Journal of the European Union

C 6/32

(Case T-424/08)

(2009/C 6/67)

Language of the case: English

Parties

Applicant(s): Nexus Europe (Ireland) Ltd (Dublin, Ireland) (represented by: M. Noonan, Barrister

Defendant(s): Commission of the European Communities

Form of order sought

—Order the Commission to pay damages in the sum of EUR 95 418,99;

—Order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

On the 31 October 2001 the applicant and the Commission entered into a ‘shared-cost and research development’ type of contract, as set out in Annex IV (‘Rules for financial participation by the Community’) to the European Parliament and Council Decision No 182/1999/EC of 22 December 1998 concerning the fifth framework programme of the European Community for RDT activities (1998-2002)(1), whereby the applicant, together with other contractors forming a consortium, undertook to implement the project MUTEIS IST-2000-30117, aimed at explaining and understanding the functional and spatial diversity in Europe's digital economy from a macro and local/urban perspective. The applicant proposed to the Commission to participate in the project on the basis of the ‘Additional costs’ model of reimbursement for the project's eligible costs. Further to an exchange of correspondence between the parties, the Commission informed the applicant that it had to temporarily reject personnel and overhead costs presented by the latter and suggested that the applicant should reconsider its participation on the basis of total eligible costs participation or full participation with the lump sum option in respect of overheads. An amended contract was signed by the applicant, according to such terms, on the 30 April 2004.

On the basis of its application for damages, the applicant claims that the Commission acted without or in excess of its powers by purporting to amend the contract and to invoke Article 3(2) of Annex II of the contract. The applicant submits that whilst the Commission could have declined to accept the cost model proposed to it by the applicant at the time the contract was signed, there is no provision in the contract allowing the Commission to change the cost model in the course of a project. Moreover, in the absence of any reasonable grounds of suspected fraud or financial irregularity on the part of the applicant, the applicant submits that the Commission was not entitled to invoke Article 3(2) of Annex II of the contract in order to justify the alteration of the contact's terms.

Further, the applicant contends that the Commission breached its contractual obligations, thereby infringing Article 1134, first paragraph, of the Belgian Civil Code, according to which agreements legally entered into operate as law for those who engaged in them. According to the applicant, it is the cost model agreed by the parties when signing the contract that should prevail for its duration and the Commission therefore breached the contract in requiring the applicant to change the cost model as agreed by the parties.

In addition, the applicant submits that the Commission breached the principle of legitimate expectations and the principle of sound administration.

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(1) OJ 1999 L 26, p. 1.