Order of the Court (Third Chamber) of 14 July 1998. – Glasoltherm SARL, in liquidation v Commission of the European Communities, Electricité de France and HLM "Colomiers Habitat SA".

BIB.ORDER

C-399/9761997O03990013.00014522145298CJ

ORDER OF 14. 7. 1998 — CASE C-399/97

GLASOLTHERM v COMMISSION AND OTHERS

Order of the Court (Third Chamber)

14 July 1998^(*)

In Case C-399/97,

Glasoltherm SARL, in liquidation, established in Orsay, France, represented by Pascal Penciolelli, of the Évry Bar, of 18 Avenue de la Libération, 91 130, Ris-Orangis, France,

applicant,

Commission of the European Communities, represented by Richard B. Wainwright, Principal Legal Adviser, and Olivier C ouvert-C astera, a national civil servant seconded to its Legal Service, acting as Agents, assisted by Nicole Coutrelis, of the Brussels Bar, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

Électricité de France, established in Paris,

and

HLM ‘Colomiers Habitat SA’, established in Colomiers, France,

defendants,

THE COURT (Third Chamber),

composed of: C. Gulmann (Rapporteur), President of the Chamber, J. C. Moitinho de Almeida and J.-P. Puissochet, Judges,

Advocate General: J. Mischo,

Registrar: R. Grass,

after hearing the Opinion of the Advocate General,

makes the following

Order

1By application lodged at the Court Registry on 19 November 1997, Glasoltherm SARL, in liquidation (hereinafter ‘Glasoltherm’), brought an action against the Commission of the European Communities, Électricité de France (hereinafter ‘EDF’) and HLM ‘Colomiers Habitat SA’. In its application it requests the Court:

—
to declare the application admissible on the basis of Article 38(5) of the Rules of Procedure of the Court of Justice;
—
to order that Case C-388/96 be joined to this case;
—
to declare that Mr Chapelle faultlessly discharged his duties as project manager when he was manager of Glasoltherm;
—
to quash the judgments of the French Cour de Cassation (Court of Cassation);
—
to order EDF, on the basis of Articles 1382, 1383 and 1384 of the Civil Code:
- —
  to settle Glasoltherm's debts the amount of which is specified by Mr Souchon, court-appointed liquidator, who will then open an account in the name of Glasoltherm at the Orsay branch of the BNP, an operation which will, moreover, bring about the reinstatement of Mr Chapelle in his capacity as manager of that company,
- —
  to deposit a cheque in the amount of FF 2 million at the account referred to above;
—
to appoint an expert at EDF's cost to determine the amount of commercial loss;
—
to draw up heads of agreement;
- A —for the creation of a property management company with a share capital of FF 50000 to be paid by Mr Chapelle, which shall be responsible for constructing two buildings for rent in Orsay with 15 F4 apartments of 80 m², each equipped with a Glasoltherm thermoelectrical microgenerator enabling two types of Glasoltherm heat pump which have been in operation for 10 years in a showroom at the Z. A. I., Courtaboeuf Les Ulis, to be tested, that company to obtain bank finance for the construction of the two buildings and to receive an EDF subsidy for the balance such that the annual loan repayments are compatible with current rent levels in Orsay,
- B —making EDF liable for paying as monitored expenditure a research team recruited by Glasoltherm of 10 engineers and five technicians (mechanics, refrigeration specialists, information technology experts), with responsibility for constructing, rendering operational and monitoring the operation of the two microgenerators for 10 years,
- C —making EDF liable for the cost of mathematical modelling to be carried out by Armines (École des Mines de Paris) under the supervision of Glasoltherm,
- D —making EDF liable for the extra costs resulting from the construction of 15 offices of 16 m² and a showroom of 100 m² in one of the two buildings to be constructed, including the cost of office equipment, testing equipment of any kind, computers etc.;
—
to take formal notice that Glasoltherm will submit further claims under Article 130r of the EC Treaty in due course;
—
to order the Commission to support in every way, including financially, for 10 years from the time when the two demonstrations referred to above are put into industrial operation, the actions of a commercial company created by Glasoltherm with responsibility for marketing within the Community ‘Glasoltherm thermoelectric microgenerator’ technology;
—
to order the Commission to pay all the costs.

2By a document lodged on 11 February 1998, the Commission, which considers that the Court manifestly lacks jurisdiction to give judgment on the action, raised a plea of lack of jurisdiction under Article 91 of the Rules of Procedure of the Court of Justice and requested that Glasoltherm by ordered to pay the costs.

3By a document dated 12 February 1998, lodged pursuant to Article 42 of the Rules of Procedure and purporting to constitute clarification of the form of order sought in its application, Glasoltherm sought production of a letter mentioning its inability to pay Transvalor SARL the amount claimed in an invoice of 30 January 1998 for the annual fees relating to French patent No 84-15949 of 18 October 1984 for 1995, 1996 and 1997, which is jointly owned by Armines and Glasoltherm and managed under the terms of a contract between Transvalor and Glasoltherm. In that document, Glasoltherm furthermore indicates that, if the Court delivers an initial judgment reinstating Mr Chapelle as manager of Glasoltherm, the management would immediately appoint the director proposed by Transvalor under that contract. That director would be remunerated by EDF and have responsibility for certain actions described in the document.

4In a document lodged on 26 February 1998, Glasoltherm contested the plea of lack of jurisdiction raised by the Commission and requested the Court

—
to annul the termination of Contract No EE 252/84, wrongfully terminated by the Commission on the basis of Article 8 of the contract, since Mr Chapelle, the project manager, did not commit any fault recognised by the Court;
—
to declare admissible, on the basis of Article 43 of the Rules of Procedure of the Court of Justice, requests which may be made by Glasoltherm on the basis of points F to Q, referring to Article 130r of the Treaty, in the event that the Court, in an initial judgment, responds favourably to Glasolt herm's requests;
—
to issue a direction to:
- —
  EDF, in the person of its acting local representatives,
- —
  HLM ‘Colomiers Habitat SA’, in the persons of its acting legal representatives, to respond to the form of order sought in the application;
—
to remit the case for a decision on the merits;
—
to order the Commission to pay all the costs.

5Under Article 92(1) of the Rules of Procedure, where it is clear that the Court has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible, the Court may, by reasoned order, after hearing the Advocate General and without taking further steps in the proceedings, give a decision on the action.

6In that connection, it must be observed that under Articles 3b and 4 of the EC Treaty, the Court, like other institutions of the European Community, has jurisdiction to act only within the limits of the powers conferred on it by the Treaty.

7The Court does not have jurisdiction to take cognisance of actions brought by legal or natural persons against other legal or natural persons such as EDF and HLM ‘Colomiers Habitat SA’.

8The action must therefore be declared inadmissible for lack of jurisdiction to the extent that it is directed against EDF and HLM ‘Colomiers Habitat SA’.

9Similarly, the Court does not have jurisdiction to take cognisance of actions for annulment of purely national decisions (see order in Case 142/83 Nevas ν Caisse des Juristes à Athènes [1983] ECR 2969). The action is therefore inadmissible to the extent that it seeks annulment of the judgments delivered by the French Cour de Cassation.

10In relation to the form of order sought against the Commission, the applicant refers to Contract No EE 252/84 signed on 28 October 1986 between itself and the Commission relating to financial assistance from the Commission for the installation of a thermoelectrical microgenerator for a block of 10 apartments with a solar panel and notes that an arbitration clause conferring jurisdiction on the Court to hear and determine any dispute relating to the contract was inserted in that contract.

11Without there being any need to decide the question whether the Court's jurisdiction can be based on the arbitration clause in the contract between Glasoltherm and the Commission, which was terminated by the Commission by letter of 6 February 1989, it should be observed that the substance of the form of order sought against the Commission — and in particular the claim for an order that the Commission support, for 10 years from the time when the two demonstrations are put into operation, the actions of a commercial company founded by Glasoltherm — presupposes that the form of order sought against EDF, and in particular the claim for it to be made liable for settling the expenses arising from recruitment of the team with responsibility for constructing the two thermoelectric microgenerators and monitoring their operation, is granted.

12However, as the Court does not have jurisdiction to rule on the form of order sought against EDF, it serves no useful purpose for the form of order sought against the Commission to be examined.

13In view of the foregoing, the action should be declared manifestly inadmissible pursuant to Article 92(1) of the Court's Rules of Procedure.

14The application for legal aid made by Glasoltherm under Article 76 of the Rules of Procedure should also be dismissed.

15Pursuant to Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the applicant has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT (Third Chamber)

hereby orders:

1.The action is inadmissible.
2.The application for legal aid is dismissed.
3.Glasoltherm SARL, in liquidation, is ordered to pay the costs.