Corte di giustizia UE/2023

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 20 [OSCURATO:PERSONA] 2023 ( * ) (Arbitration clause – [OSCURATO:PERSONA] agreement concerning the design, construction, equipping and commissioning of certain hospitals in a third country – Non-performance of the agreement – Repayment of the sums advanced – Default interest – Procedure by default) [OSCURATO:PERSONA] T‑457/22, [OSCURATO:PERSONA] (EIB), represented by T. Gilliams, R. Stuart and F. [OSCURATO:PERSONA], acting as Agents, and by D. Arts and E. Paredis, lawyers, applicant, v [OSCURATO:PERSONA], defendant, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of L. [OSCURATO:PERSONA], [OSCURATO:PERSONA], R. [OSCURATO:PERSONA] (Rapporteur) and M. [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: V. [OSCURATO:PERSONA], having regard to the written part of the procedure, gives the following [OSCURATO:PERSONA] 1 By its action based on [OSCURATO:PERSONA] 272 TFEU, the [OSCURATO:PERSONA] (EIB) requests that the [OSCURATO:PERSONA] be ordered to pay the [OSCURATO:PERSONA], which it represents, the sums of EUR 50 880 189.61 and 2 897 002.31 [OSCURATO:PERSONA] dollars (USD), together with interest, under [OSCURATO:PERSONA] 21595 concerning the design, construction, equipping and commissioning of certain hospitals located in Syria (‘the loan agreement’), and to pay it the sums of EUR 11 416.23 and USD 760.94, which have not been called, representing the default interest on the instalment due on 10 June 2022, accrued up to 29 June 2022, the date on which the [OSCURATO:PERSONA] paid the related instalment of principal and contractual interest. Background to the dispute 2 On 15 June 2002, the EIB concluded the loan agreement with the [OSCURATO:PERSONA]. That agreement, which was amended by letter of 11 April 2006 and modified on 17 October and 29 November 2007, followed three texts, namely: –        [OSCURATO:PERSONA] (EC) No 1488/96 of 23 July 1996 on financial and technical measures to accompany (MEDA) the reform of economic and social structures in the framework of the [OSCURATO:PERSONA]-Mediterranean partnership (OJ 1996 L 189, p. 1); –        the framework agreement between the [OSCURATO:PERSONA] and the EIB of 17 May 1999 governing EIB activities in Syria; –        the framework convention of 17 May 1999 on the implementation of financial and technical cooperation under the MEDA programme as well as other EIB financing agreements in Mediterranean countries. 3 [OSCURATO:PERSONA] 1.01 to 1.04 of the loan agreement, the EIB granted the [OSCURATO:PERSONA] a loan of EUR 100 000 000 to be drawn down on request. The loan was drawn down in tranches, in dollars and in euros, between 16 January 2004 and 14 October 2009. 4 [OSCURATO:PERSONA] 4.01 of the loan agreement, the [OSCURATO:PERSONA] was to repay the loan in several instalments in accordance with the amortisation table supplied by the EIB. 5 In accordance with [OSCURATO:PERSONA] 3.01 of the loan agreement, the outstanding balance of any tranche, on a semi-annual basis, is to bear contractual interest at a rate to be determined as at the date of issue of the disbursement notice, on the basis of the standard interest rate applicable to comparable loans made by the EIB, denominated in euros and subject to the same conditions (‘contractual interest’). 6 [OSCURATO:PERSONA] 3.02 of the loan agreement, default interest is to accrue on any overdue sum in euros at the [OSCURATO:PERSONA] (Euribor) and on any overdue sum in USD at the [OSCURATO:PERSONA] (Libor), plus 2%, or at the fixed rate payable under [OSCURATO:PERSONA] 3.01 of the loan agreement, plus 0.25%, with the higher of the two rates being applied (‘default interest’). 7 Furthermore, in accordance with the guarantee agreement concluded on 24 July 2000 by the EIB and the [OSCURATO:PERSONA] concerning the loans to be granted by the EIB for investment projects carried out in the countries of central and eastern Europe, the Mediterranean countries, the countries of [OSCURATO:PERSONA] and Asia and in the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] (‘the guarantee agreement’), the [OSCURATO:PERSONA] guarantees loans granted by the EIB in the context of the [OSCURATO:PERSONA] financial commitments towards certain third countries, including the [OSCURATO:PERSONA], and is subrogated to the EIB’s rights immediately upon making each payment to the EIB under the guarantee ([OSCURATO:PERSONA] 1.01). 8 [OSCURATO:PERSONA] the recovery agreement between the [OSCURATO:PERSONA] and the EIB, signed in Brussels on 3 October 2018, governing modalities and procedures for recovery of payments made by the [OSCURATO:PERSONA] under the guarantees granted by it to the EIB against losses under financing operations supporting investment projects outside the [OSCURATO:PERSONA], as amended on 10 August 2021, whenever the [OSCURATO:PERSONA] has made a payment under the guarantee agreement and is subrogated to the rights and remedies of the EIB under and pursuant to, inter alia, a loan agreement, the EIB is to initiate recovery proceedings without undue delay on behalf and in the name of the [OSCURATO:PERSONA] ([OSCURATO:PERSONA] 3.1). 9 [OSCURATO:PERSONA] 2011, the [OSCURATO:PERSONA] has failed to pay the instalments due under the loan agreement. 10 By judgment of 6 June 2019, EIB v Syria (T‑543/17, not published, EU:T:2019:385), the [OSCURATO:PERSONA] was ordered to repay the [OSCURATO:PERSONA], represented by the EIB, first, the sums of EUR 62 646 209.04 and USD 3 582 381.15 in respect of the instalments that had not been paid by the [OSCURATO:PERSONA] on the due dates between 12 [OSCURATO:PERSONA] 2011 and 12 June 2017 and the contractual and default interest for the period from 12 [OSCURATO:PERSONA] 2011 to 9 August 2017, and, secondly, default interest calculated in accordance with the method laid down in [OSCURATO:PERSONA] 3.02 of the loan agreement from 9 August 2017 until the date that payment is made. 11 Between 9 August 2017 and 30 June 2022, 10 instalments under the loan agreement fell due and, since the [OSCURATO:PERSONA] failed to make the payments due, the EIB issued a payment reminder on each occasion as follows: Due date Principal amount Contractual interest Reminder 11 [OSCURATO:PERSONA] 2017 EUR 3 682 306.14 EUR 908 265.31 12 [OSCURATO:PERSONA] 2017 USD 196 829.79 USD 59 713.64 11 June 2018 EUR 3 764 333.49 EUR 826 237.96 19 June 2018 USD 202 114.67 USD 54 428.76 10 [OSCURATO:PERSONA] 2018 EUR 3 848 200.87 EUR 742 370.59 11 [OSCURATO:PERSONA] 2018 USD 207 541.45 USD 49 001.98 10 June 2019 EUR 3 933 949.84 EUR 656 621.61 12 June 2019 USD 213 113.94 USD 43 429.49 10 [OSCURATO:PERSONA] 2019 EUR 4 021 622.89 EUR 568 948.56 11 [OSCURATO:PERSONA] 2019 USD 218 836.05 USD 37 707.38 10 June 2020 EUR 4 111 263.48 EUR 479 307.97 11 June 2020 USD 224 711.79 USD 31 831.64 10 [OSCURATO:PERSONA] 2020 EUR 4 202 916.07 EUR 387 655.38 11 [OSCURATO:PERSONA] 2020 USD 230 745.30 USD 25 798.13 10 June 2021 EUR 4 296 626.16 EUR 293 945.29 11 June 2021 USD 236 940.82 USD 19 602.61 10 [OSCURATO:PERSONA] 2021 EUR 4 392 440.19 EUR 198 131.26 13 [OSCURATO:PERSONA] 2021 USD 243 302.68 USD 13 240.75 10 June 2022 EUR 4 490 405.73 EUR 100 165.71 16 June 2022 USD 249 835.35 USD 6 708.08 12 Nonetheless, the [OSCURATO:PERSONA] remained in default of payment. 13 In accordance with the guarantee agreement, by 10 letters sent to the [OSCURATO:PERSONA] between 12 [OSCURATO:PERSONA] 2017 and 16 June 2022, the EIB requested that the guarantee in question be activated in respect of the principal amounts and the contractual interest concerning the instalments relating to the due dates referred to in paragraph 11 above, plus default interest in respect of each instalment, with the exception of the instalment due on 10 June 2022. [OSCURATO:PERSONA] complied with those requests by making the payments of the amounts at issue (‘the amounts disbursed by the [OSCURATO:PERSONA]’). 14 On the date on which the amounts claimed in the present application were calculated, the EIB had not yet called on the EU guarantee in respect of the default interest on the instalment due on 10 June 2022. Therefore, subrogation has not been implemented in respect of amounts of EUR 11 416.23 and USD 760.94 corresponding to the default interest due on 30 June 2022, which has not been called by the EIB (‘the uncalled amounts’). Procedure and form of order sought by the EIB 15 By application lodged at the [OSCURATO:PERSONA] on 22 July 2022, the EIB, acting on its own behalf and on behalf of the [OSCURATO:PERSONA], brought the present action. 16 Two attempts to serve the application on the [OSCURATO:PERSONA], made by registered letters with acknowledgement of receipt of 1 August and 18 November 2022, were unsuccessful. 17 [OSCURATO:PERSONA] made a further attempt to serve the application on the defendant by express courier with acknowledgement of receipt of 15 June 2023. That letter was received on 6 July 2023. Thus, the application, which is addressed, in accordance with [OSCURATO:PERSONA] 10.03 of the loan agreement, to the ambassador of the [OSCURATO:PERSONA] to the [OSCURATO:PERSONA] in Brussels (Belgium), was duly served on the [OSCURATO:PERSONA]. 18 [OSCURATO:PERSONA] the [OSCURATO:PERSONA] did not lodge a defence within the period prescribed in [OSCURATO:PERSONA] 81 of the Rules of Procedure of the [OSCURATO:PERSONA], the EIB, by document lodged on 2 October 2023, applied to the [OSCURATO:PERSONA] for judgment by default, in accordance with [OSCURATO:PERSONA] 123(1) of those rules. 19 The EIB claims, in essence, that the [OSCURATO:PERSONA] should: –        declare that the [OSCURATO:PERSONA] failed to fulfil its contractual obligations under the loan agreement in so far as concerns payment of the principal amounts, contractual interest and default interest on each of the instalments due and unpaid between 11 [OSCURATO:PERSONA] 2017 and 10 June 2022, and, consequently, order the [OSCURATO:PERSONA] to pay the [OSCURATO:PERSONA], which it represents, first, the sums of EUR 50 880 189.61 and USD 2 897 002.31 by way of the amounts disbursed by the [OSCURATO:PERSONA] and default interest for the period from 9 August 2017 to 30 June 2022, excluding the default interest on the instalment due on 10 June 2022, and, secondly, additional default interest at a rate equal to the Euribor rate in respect of the disbursements in euros and at a rate equal to the Libor rate in respect of the disbursements in USD, plus 2%, or at the fixed rate indicated in [OSCURATO:PERSONA] 3.01 of the loan agreement, plus 0.25%, per annum, with the higher of the two rates being applied (for any successive period of one month), from 30 June 2022 up to the time that payment is made; –        declare that default interest amounting to sums of EUR 11 416.23 and USD 760.94 in respect of the instalment due on 10 June 2022, accrued up to 29 June 2022, has not yet been called by the EIB under the guarantee, and, consequently, order the [OSCURATO:PERSONA] to pay it the uncalled amounts; –        order the [OSCURATO:PERSONA] to pay the costs. Law 20 [OSCURATO:PERSONA] 123(1) of the Rules of Procedure, where the [OSCURATO:PERSONA] finds that a defendant on whom an application initiating proceedings has been duly served has failed to respond to the application within the prescribed time limit, the applicant may apply to the [OSCURATO:PERSONA] for judgment by default. 21 In the present case, it must be noted that the application, which, in accordance with [OSCURATO:PERSONA] 10.03 of the loan agreement, was to be addressed to the ambassador of the [OSCURATO:PERSONA] to the [OSCURATO:PERSONA] in Brussels, was duly served at the address of the embassy, where the premises of the mission of that State are located. 22 However, as is apparent from paragraph 18 above, although the EIB’s application was duly served on the [OSCURATO:PERSONA], the latter did not lodge a defence within the time limit prescribed in [OSCURATO:PERSONA] 81 of the Rules of Procedure. 23 [OSCURATO:PERSONA] the applicant has applied to the [OSCURATO:PERSONA] for judgment by default, it is appropriate to apply [OSCURATO:PERSONA] 123(3) of the Rules of Procedure, under which the [OSCURATO:PERSONA] is to give judgment in favour of the applicant, unless it is clear that the [OSCURATO:PERSONA] has no jurisdiction to hear and determine the action or that the action is manifestly inadmissible or manifestly lacking any foundation in law. The jurisdiction of the [OSCURATO:PERSONA] 24 In accordance with [OSCURATO:PERSONA] 272 TFEU, the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA] is to have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the [OSCURATO:PERSONA], whether that contract be governed by public or private law. 25 It should be noted that it is apparent from the preliminary provisions of the loan agreement that that agreement was concluded, inter alia, following [OSCURATO:PERSONA] 1488/96, with the result that it must be regarded as having been concluded on behalf of the [OSCURATO:PERSONA]. 26 [OSCURATO:PERSONA] 10.02 of the loan agreement contains an arbitration clause under which any disputes concerning that agreement are to be submitted to the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA]. 27 In accordance with [OSCURATO:PERSONA] 256(1) TFEU, the [OSCURATO:PERSONA] is to have jurisdiction to hear and determine at first instance actions brought on the basis of an arbitration clause, as referred to in [OSCURATO:PERSONA] 272 TFEU. 28 In the light of the foregoing, it must be held that the [OSCURATO:PERSONA] does not manifestly lack jurisdiction to hear and determine the present action. Admissibility of the action 29 As regards the first head of claim, it is apparent from paragraph 13 above that, following the failure of the [OSCURATO:PERSONA] to fulfil its contractual obligations under the loan agreement, the EIB recovered the amounts paid by the [OSCURATO:PERSONA] under the guarantee agreement. 30 It follows that, in accordance with [OSCURATO:PERSONA] 4.01 of the guarantee agreement, the [OSCURATO:PERSONA] is subrogated to the rights that the EIB has against the borrower under the loan agreement as regards the sums referred to in the first head of claim. 31 It must be noted that the effects of that subrogation with regard to the [OSCURATO:PERSONA] are not governed by the loan agreement and that the guarantee agreement, under which subrogation took place, does not contain any provisions regarding the applicable law. 32 In that regard, first of all, it should be borne in mind that [OSCURATO:PERSONA] 13(1) of the Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980 (OJ 1980 L 266, p. 1) provides as follows: ‘Where a person (“the creditor”) has a contractual claim upon another (“the debtor”), and a third person has a duty to satisfy the creditor, or has in fact satisfied the creditor in discharge of that duty, the law which governs the third person’s duty to satisfy the creditor shall determine whether the third person is entitled to exercise against the debtor the rights which the creditor had against the debtor under the law governing their relationship and, if so, whether he may do so in full or only to a limited extent.’ 33 In the present case, since the guarantee agreement was concluded by the [OSCURATO:PERSONA] and the EIB, it is appropriate to refer to the national provisions governing subrogation as set out in the civil codes of the [OSCURATO:PERSONA] in which the guarantee agreement was signed, respectively, by the [OSCURATO:PERSONA], on behalf of the [OSCURATO:PERSONA], and the EIB, namely the Belgian and [OSCURATO:PERSONA]. 34 [OSCURATO:PERSONA] those national laws, which do not require the debtor to have consented to subrogation, subrogation may be effective against third parties provided that the party performing the obligation to repay a loan that is due, which has a legitimate interest in the performance, is subrogated to the rights of the creditor. As a consequence of subrogation, the contractual right of the EIB to reimbursement of the sums due under the loan agreement is transferred to the [OSCURATO:PERSONA], which is accordingly entitled to make a contractual claim against the [OSCURATO:PERSONA] (judgment of 6 June 2019, EIB v Syria , T‑542/17, not published, EU:T:2019:394, paragraph 23). 35 Next, it should be noted that, under [OSCURATO:PERSONA] 4.03 of the guarantee agreement, after subrogating the [OSCURATO:PERSONA] to its rights and actions, the EIB, at the request of the [OSCURATO:PERSONA], must agree on the arrangements for administering and servicing the loan. 36 In that regard, it is apparent from [OSCURATO:PERSONA] 3.1 of the recovery agreement referred to in paragraph 8 above that, whenever the [OSCURATO:PERSONA] makes a payment under a guarantee agreement and is subrogated to the rights and remedies of the EIB under and pursuant to, inter alia, a loan agreement, the EIB is to initiate recovery proceedings without undue delay on behalf and in the name of the [OSCURATO:PERSONA]. 37 In those circumstances, it should be held that the first head of claim, brought by the EIB on behalf of the [OSCURATO:PERSONA], is not manifestly inadmissible. 38 By its second head of claim, the EIB seeks a declaration that the sums of EUR 11 416.23 and USD 760.94 representing the default interest on the instalment due on 10 June 2022, accrued up to 29 June 2022, have not yet been called under the guarantee agreement, and, consequently, an order that the [OSCURATO:PERSONA] pay it the uncalled amounts. 39 In that regard, it should be borne in mind that, in order to ensure the proper administration of justice, any person bringing legal proceedings must have a vested and current interest in doing so (judgment of 30 September 2009, Lior v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v Lior , T‑192/01 and T‑245/04, not published, EU:T:2009:365, paragraph 247). That interest is evaluated as at the date on which the action is brought (see judgment of 20 September 2007, Salvat père & fils and Others v [OSCURATO:PERSONA] , T‑136/05, EU:T:2007:295, paragraph 34 and the case-law cited) and must continue until the final decision, which presupposes that the action must be capable, having regard to its purpose and if it is successful, of procuring an advantage for the party bringing it (see judgment of 13 November 2014, Jaber v [OSCURATO:PERSONA] , T‑653/11, EU:T:2014:948, paragraph 55 and the case-law cited). 40 In the present case, it is apparent from the information provided by the EIB that, on 30 June 2022, the date on which the amounts claimed in the present action were calculated, it had not yet called on the [OSCURATO:PERSONA] to pay the default interest on the instalment due on 10 June 2022, and no such call is apparent from the documents before the [OSCURATO:PERSONA]. 41 Thus, the uncalled amounts remained, at the time the action was brought, a debt owed to the EIB and it is not apparent from the documents before the [OSCURATO:PERSONA] that the situation has changed in the meantime. 42 It follows that the second head of claim put forward by the EIB on its own behalf is also not manifestly inadmissible. 43 Furthermore, the present action does not raise any other difficulties which would be such as to give reason to consider it manifestly inadmissible. 44 Consequently, it must be held that the present action is not manifestly inadmissible. Substance of the action 45 In the first place, it is apparent from the documents before the [OSCURATO:PERSONA] that, on the basis of the loan agreement, the EIB granted the [OSCURATO:PERSONA] a loan repayable on the due dates referred to in paragraph 11 above. 46 In addition, it is apparent from the information provided by the EIB that the [OSCURATO:PERSONA] failed to make repayments on those due dates, in breach of [OSCURATO:PERSONA] 4.01 of the loan agreement. 47 Consequently, the claims that the [OSCURATO:PERSONA] be ordered to repay, first, the [OSCURATO:PERSONA] the sums of EUR 40 744 064.86 and USD 2 223 971.84 in respect of the principal amounts that were borrowed by the [OSCURATO:PERSONA] and that should have been repaid between 11 [OSCURATO:PERSONA] 2017 and 10 June 2022, and, secondly, the EIB the sums of EUR 11 416.23 and USD 760.94 representing the uncalled amounts owed to it are not manifestly lacking any foundation in law. 48 In the second place, it is apparent from [OSCURATO:PERSONA] 3.02 of the loan agreement that default interest is to accrue on any overdue sum in euros at the Euribor rate and on any overdue sum in USD at the Libor rate, plus 2%, or at the fixed rate payable under [OSCURATO:PERSONA] 3.01 of that agreement, plus 0.25%, with the higher of the two rates being applied. 49 Consequently, the claims that the [OSCURATO:PERSONA] be ordered to pay, first, the sums of EUR 10 136 124.75 and USD 673 030.47 in respect of the contractual and default interest for the period from 9 August 2017 to 30 June 2022, and, secondly, the default interest due on the sums of EUR 40 744 064.86 and USD 2 223 971.84 from 30 June 2022 until the date that payment is made, are also not manifestly lacking any foundation in law. Default interest is to be calculated in accordance with the method laid down in [OSCURATO:PERSONA] 3.02 of the loan agreement. 50 Accordingly, it is necessary to uphold the form of order sought by the EIB, and to give a judgment by default against the [OSCURATO:PERSONA], in accordance with [OSCURATO:PERSONA] 123 of the Rules of Procedure. Costs 51 [OSCURATO:PERSONA] 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. [OSCURATO:PERSONA] the [OSCURATO:PERSONA] has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the EIB. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Orders the [OSCURATO:PERSONA] to repay the [OSCURATO:PERSONA], represented by the [OSCURATO:PERSONA] (EIB), the sums of EUR 50 880 189.61 and 2 897 002.31 [OSCURATO:PERSONA] dollars (USD) representing the principal amounts and the contractual and default interest due on 30 June 2022 and the EIB the sums of EUR 11 416.23 and USD 760.94 representing the default interest on the instalment due on 10 June 2022, accrued up to 29 June 2022, which has not been called by the EIB; 2. Declares that the sums of EUR 40 744 064.86 and USD 2 223 971.84 comprising the principal amounts are to bear default interest, in accordance with the method laid down in [OSCURATO:PERSONA] 3.02 of [OSCURATO:PERSONA] 21595 concerning the design, construction, equipping and commissioning of certain hospitals located in Syria, entered into by the EIB and the [OSCURATO:PERSONA] on 15 June 2002, as amended by letter of 11 April 2006 and as modified on 17 October and 29 November 2007, from 30 June 2022 until the date that payment is made; 3. Orders the [OSCURATO:PERSONA] to pay the costs. [OSCURATO:PERSONA] in open court in [OSCURATO:PERSONA] on 20 [OSCURATO:PERSONA] 2023. V. [OSCURATO:PERSONA] M. van der [OSCURATO:PERSONA] * Language of the case: English.