Report for the Hearing in Case C-338/92
I — Facts and written procedure
1. On 23 November 1987, the European Parliament, in its capacity as contracting authority, issued an invitation to tender for the fitting-out of three conference rooms in the Van Maerlan office building which the Belgian State had had built in Brussels for the European Parliament.
2. The tender for and the performance of the works are governed by Belgian law, specifically by the Civil Code, the Royal Decree of 22 April 1977 concerning public works, supply and service contracts (Moniteur of 26 July 1977, p. 9552, hereinafter the Royal Decree) and the Ministerial Decree of 10 August 1977 laying down the general conditions governing public works, supply and service contracts (Moniteur of 8 September 1977, p. 10931, hereinafter the general conditions), and by special conditions.
3. Article 38(1) of the general conditions provides that:
4. Article 16 of the general conditions, concerning complaints and applications, provides that
5. Article 42 of the general conditions governs alterations to the work to be carried out and the variation of the unit price. That provision requires, in particular, a written order by the contracting authority and sets up a special procedure for price variation.
6. Under Article B 13.1 of the special conditions, the validity of the tender is 600 calendar days from the lodging of the tender and any price variation is excluded prior to the expiry of that period.
7. Compagnie d'Entreprise CFE, (CFE), which had been given the contract by the owner, the Belgian State buildings authority, for building the carcass and installing the finishings in the Van Maerlant building and coordinating all the operators, lodged, with other tenderers, a tender for a contract to fit out three conference rooms.
8. Tenders were opened on 28 January 1988. On 21 June 1988, the European Parliament informed CFE that its tender had been chosen and pointed out that the time-limits stipulated were essential.
9. On 18 July 1988, the contract was signed by the European Parliament and sent to CFE; CFE signed the contractual documents on 8 August 1988, pointing out that
10. The work to be carried out is specified in the special conditions and the architect's detailed plans.
11. The installation of plaster boards on partitions is governed by Article 5.1.5 of the special conditions, paragraphs 2 and 3 of which provide that
12. By letters of 18 August, 28 November and 14 December 1989, CFE drew the European Parliament's attention to the fact that because of the delay in placing the order CFE had had to place its orders with suppliers and subcontractors during the period from August to October 1988, instead of March to May 1988, at rates which took account of the significant increase in construction prices since June 1988. CFE repeated that in its view an equitable settlement of the problem required the application to the invoices for the work in question of a technical formula for price variation used in Belgium, leading to a price increase of BFR 1689055.
13. In the course of the work a problem arose regarding the installation of plaster boards; the requirement by the European Parliament's architect that they be installed on the whole elevation of the partitions was considered by CFE to be an order for additional work not referred to in the special conditions, amounting to BFR 393600.
14. A final issue concerns the installation and reinstallation of wall panelling. Since the material chosen by CFE did not meet the safety requirements, the painting of the panelling was given to another undertaking. The panelling was removed for painting and then reinstalled by CFE, which claims BFR 306344 for additional work in that regard; the European Parliament rejects that claim.
15. Article 2.4 of the contract concluded between CFE and the European Parliament introduced a procedure for the amicable settlement of disputes by reference to one or two experts; where that procedure fails, the issue is to be submitted to the Court of Justice under Article 42 of the ECSC Treaty, Article 181 of the EEC Treaty and Article 153 of the EAEC Treaty.
16. Since no amicable settlement could be reached, CFE brought this action.
II — Written procedure and forms of order sought
1. The application was lodged at the Court Registry on 11 August 1992.
2. The written procedure followed the normal course. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. By decision of 22 March 1993, the Court decided to refer the case to the Second Chamber.
3. Compagnie d'Entreprise CFE, the applicant, claims that the Court should:
4. The European Parliament, the defendant, contends that the Court should:
III — Pleas in law and arguments of the parties
A — The daim for an updating of the price
1. CFE states at the outset that its claim does not concern price variation during the performance of work but updating the tender price; in this regard, the applicant seeks in the application an updating of the price to the time of the order and, in the reply, an update to the day when it was able to place orders with its subcontractors at higher prices, namely between August and the end of October 1988. Applying the technical formula for price variation for the period between March and October 1988, which is the best method of updating the price, this results in an increase of about 4%.
2. The European Parliament replies, principally, that Article B 13.1 of the special conditions prohibits any price variation. The applicant cannot circumvent that prohibition by requiring in its application an update of the price to the time of the order, or, in its reply, an update to the day when it was able to place orders with its subcontractors.
B — The claim for payment for the installation of plaster boards
1. CFE claims to have performed the initial work in accordance with the special conditions and the detailed plans. Additional work was performed by special order of the contracting authority's architect and were immediately reported to the European Parliament.
2. The European Parlament replies that the architect simply pointed out that, under Article 5.1.5 of the Special Conditions, plaster boards are to be installed on the whole elevation of the partitions. If the applicant considered that it had been given additional work, it should have reported the matter immediately to the contracting authority. The special conditions and the architect's detailed plans are complementary and therefore the successful tenderer should comply with the document which provides for the broadest service. Even if it were accepted that the work was not mentioned in the plans, it would be ancillary work, generally accepted as a normal supplement for the completion of first-rate work as provided for in Article A 5.2 of the special conditions.
C — The claim for payment for the installation and reinstallation of wall panelling
1. CFE points out that the initial order implied that the removal of the panels for painting was its responsibility. Since the painting was given to another undertaking, the installation and reinstallation of the wall panelling constituted an additional service not included in the remainder of its work and, in accordance with Article 42 of the general conditions, it is entitled to an additional payment.
2. The European Parliament points out that Article 42 gives a right to payment for the additional works ordered by the contracting authority only if there has been a written order and the special procedure for price variation has been complied with. Likewise, Article A 5.1 of the special conditions states that the successful tenderer may not carry out any work giving rise to additional expense without a prior estimate and written permission from the European Parliament and authorized agents. In any event, the work in issue remained in the applicant's sphere of competence even after responsibility for the painting work had been given to another undertaking.
1 Language of the case: French.