Opinion of Mr Advocate General Tesauro
Mr President,
Members of the Court,
1. The present case, which was brought under Article 153 of the Euratom Treaty, concerns a dispute between Mr Grifoni's undertaking and the Commission relating to work carried out by the former for the Joint Research Centre at Ispra (to which I shall hereinafter refer as the Centre).
2. The following elements of the contractual relationship between the parties are of particular interest in the present case:
3. Relations between Mr Grifoni and the Commission continued on the basis of the abovementioned contractual clauses until May 1987. During that period the Commission entrusted Mr Grifoni with the performance of diverse tasks by placing various orders; each of those orders contained, in addition to the relevant technical specifications, the most important clauses of the outline agreement; in particular it was confirmed that the General Terms and Conditions formed an integral part of the order, and a clause was reproduced which was identical in content to the abovementioned clause 6.
4. In the application, Mr Grifoni, after referring to the agreements governing his relations with the Commission, in particular the clause according to which any work carried out was to be entered in the accounts on a cost-reimbursement basis (that is to say on the basis of the services actually supplied, even if they are quantitatively different from those specified in the order), merely stated that owing also to the particular payment mechanism used by the Centre (page 2 of the application) he had not been paid by the agreed method. Such a statement would suggest that Mr Grifoni's claims arose because of the incorrect entry in the accounts of the work he had carried out, particularly since the balances of account, which are to be found in an annex to the application, specified for each order, broken down by individual item, the amounts which he considered still owing to him.
5. However, in the reply and at the hearing Mr Grifoni changed the presentation of his claims appreciably, alleging that what was agreed in the written orders corresponded only in part to the actual content of the agreements concluded between the parties orally and that therefore the written agreements are in fact fictitious agreements and in any event a partial and expedient formalization of the oral agreements. In brief, the essence of the claim is that the value of the work carried out by Mr Grifoni was much greater than the written orders would suggest and, consequently, much more than the Centre paid.
6. At the hearing, in view of Mr Grifoni's submissions regarding the legal basis of his claims as contained in the reply, the question of the competence of the Court arose.
7. That having been said, it appears appropriate to determine first of all whether the Commission's objection based on Article 42(2) of the Rules of Procedure is well founded and, more generally, to define the subject-matter of the application. That determination, it need hardly be said, is to be made on the basis of the provisions governing the procedure before the Court, the applicability of Italian law obviously being limited to substantive law.
8. I therefore consider that the change in the amount of the claim cannot be permitted. It is clear that the size of the total sum which Mr Grifoni considers that he is still owed could have been determined accurately in the application since it relates to work which had already been completed for some time and which was to be paid for in accordance with a known price list. The item Demolition of roofs, for which there was no price fixed in the list of prices, could perhaps be considered to be the only exception. However, in my view, between the time the work was completed and the time the application was lodged, Mr Grifoni had sufficient time and opportunity to determine the price of the item in question by obtaining an expert opinion or information from the Chamber of Commerce.
9. Coming now to consideration of the question whether the claims are well founded, I would point out that three distinct situations can be identified from the comprehensive reconstruction by Mr Grifoni of his relations with the Commission, although based on the general premise that all the work was always agreed orally, and from examination of the various orders in respect of which Mr Grifoni claims that he is entitled to further payment:
10. Even leaving aside the procedural problems which could strictly speaking arise, since at the reply stage not only was there a change in what was claimed but also in the legal basis of the claims, I am of the opinion that there are substantive reasons why the claims corresponding to the last two arguments must be rejected.
11. Moreover, under Italian law, whose substantive provisions govern the rules of evidence, there are limited possibilities for proving the existence of oral agreements differing from the content of a document. In particular, with regard to additional or differing agreements made prior to the document, they may not be proved by the testimony of witnesses (Article 2722 of the Civil Code). The Court may allow evidence to support agreements concluded subsequently, on the basis of an assessment of likelihood, having regard to the status of the parties and to the nature of the contract (Article 2723 of the Civil Code). However, when, as in the present case, the parties have agreed on the written form, the evidence of witnesses is accepted only in the event of the loss of the document (Article 2725 of the Civil Code).
12. In the light of the rules set out above, and in particular the exclusions as regards evidence laid down by Italian law, I consider that Mr Grifoni's claims based on the existence of oral agreements and oral orders which are different from the content of the written agreements and orders must be dismissed.
13. However, there remains to be considered the claim corresponding to the case mentioned at (a) above, based on the assumption that the work carried out in accordance with particular written orders was not paid for as agreed.
14. On the basis of all the above considerations, I therefore propose that the Court should:
1 Original language: Italian.
2 Judgment in Case 191/84 Raralla v Commission [1986] ECR 1541. Similarly, see the judgments in Case 232/78 Commission v Frame [1979] ECR 2729, Case 152/78 GEMA v Commission [1979] 3173 and Case 124/81 Commissioni United Kingdom [1983] ECR 203.
3 Judgment in Joined Cases 56-60/74 Kampffmeyer v Commission and Council [1976] ECR 711.
4 OJ L 356, p. 1.
5 Law No 2248 of 20 March 1865, Annex F.
6 Article 1659(1) and (2) provides that the successful tenderer may not change the arrangements agreed for the work without authorization from the orderer. Such authorization shall be evidenced in writing
7 Article 2722 reads as follows: The testimony of witnesses shall not be admitted as evidence if it concerns additional agreements or agreements that conflict with the content of a document, and which are alleged to have been concluded earlier or contemporaneously.
8 Under Article 2723, When it is alleged that, after the creation of a document, an additional agreement or one that conflicts with the content of the document was concluded, the court may allow evidence to be given by witnesses only if, having regard to the status of the parties, to the nature of the contract and to any other circumstance, it appears likely that oral additions or amendments were made.
9 Article 2725 provides that When, by law or in accordance with the wishes of the parties, a contract must be evidenced in writing, the evidence of witnesses is accepted only in the case stipulated by paragraph 3 of the preceding article. The same rule applies in cases in which the written form is required on penalty of nullify. Under the aforementioned Article 2724(3), The evidence of witnesses is accepted in any case: ... 3) when the contracting party has at no fault of his own lost the document which served him as evidence
10 In this regard, see the judgment in Case 318/81 Commission v CO.DE.MI. [1985] ECR 3706, in particular 3713, and the Opinion of Mr Advocate General Slynn, ibid., p. 3693, in particular p. 3698 et seq.
11 Article 54 of Royal Decree No 350 of 25 May 1895.