JUDGMENT OF THE GENERAL COURT (Third Chamber, Extended Composition)
17 February 2017 (*)
(Non-contractual liability — Precision of the application — Limitation of actions — Admissibility — Article 47 of the Charter of Fundamental Rights — Obligation to adjudicate within a reasonable time — Material damage — Interest on the amount of the outstanding fine — Bank guarantee charges — Causal link)
In Case T‑40/15,
Plásticos Españoles, SA (ASPLA), established in Torrelavega (Spain),
Armando Álvarez, SA, established in Madrid (Spain),
represented initially by M. Troncoso Ferrer, C. Ruixó Claramunt and S. Moya Izquierdo, and subsequently by Troncoso Ferrer and Moya Izquierdo, lawyers,
applicants,
v
European Union, represented by the Court of Justice of the European Union, represented initially by A. Placco, and subsequently by J. Inghelram, Á. Almendros Manzano and P. Giusta, acting as Agents,
defendant,
supported by
European Commission, represented by P. van Nuffel, F. Castilla Contreras and C. Urraca Caviedes, acting as Agents,
intervener,
APPLICATION pursuant to Article 268 TFEU for compensation for the damage allegedly suffered by the applicants as a result of the length of the proceedings before the General Court in the cases which gave rise to the judgments of 16 November 2011, ASPLA v Commission (T‑76/06, not published, EU:T:2011:672), and of 16 November 2011, Álvarez v Commission (T‑78/06, not published, EU:T:2011:673),
THE GENERAL COURT (Third Chamber, Extended Composition),
composed of S. Papasavvas, President, I. Labucka, E. Bieliūnas (Rapporteur), V. Kreuschitz and I. S. Forrester, Judges,
Registrar: J. Palacio González, Principal Administrator,
having regard to the written stage of the procedure and further to the hearing on 24 November 2016,
gives the following
Judgment
Background to the dispute
1 By applications lodged at the General Court Registry on 24 February 2006, the applicants, Plásticos Españoles, SA, (ASPLA), on the one hand, and Armando Álvarez, SA, on the other hand, each brought an action against Commission Decision C(2005) 4634 of 30 November 2005 relating to a proceeding pursuant to Article [101 TFEU] (Case COMP/F/38.354 — Industrial bags) (‘Decision C(2005) 4634’). In their applications, they claimed, in essence, that the General Court should annul that decision in so far as it applied to them or, in the alternative, reduce the amount of the fine which had been imposed on them.
2 By judgments of 16 November 2011, ASPLA v Commission (T‑76/06, not published, EU:T:2011:672), and of 16 November 2011, Álvarez v Commission (T‑78/06, not published, EU:T:2011:673), the General Court dismissed those actions.
3 By applications lodged on 24 January 2012, the applicants brought appeals against the judgments of 16 November 2011, ASPLA v Commission (T‑76/06, not published, EU:T:2011:672), and of 16 November 2011, Álvarez v Commission (T‑78/06, not published, EU:T:2011:673).
4 By judgments of 22 May 2014, ASPLA v Commission (C‑35/12 P, EU:C:2014:348), and of 22 May 2014, Armando Álvarez v Commission (C‑36/12 P, EU:C:2014:349), the Court of Justice dismissed those appeals.
Procedure and forms of order sought
5 By application lodged at the General Court Registry on 27 January 2015, the applicants brought the present action against the European Union, represented by the Court of Justice of the European Union or by the European Commission.
6 By separate documents, lodged at the General Court Registry on 9 and 21 April 2015 respectively, the Court of Justice of the European Union and the Commission each raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the General Court of 2 May 1991.
7 By order of 27 April 2015, the President of the Third Chamber, at the request of the Commission, suspended the proceedings in the present case pending the final decision of the Court of Justice in Case C‑71/15 P, Court of Justice v Kendrion.
8 By order of 18 December 2015, Court of Justice v Kendrion (C‑71/15 P, not published, EU:C:2015:857), the case was removed from the register of the Court of Justice.
9 Following the resumption of the proceedings in the present case, the General Court, on 17 February 2016, assigned the present case to the Third Chamber (Extended Composition).
10 By order of 4 March 2016, ASPLA and Armando Álvarez v European Union (T‑40/15, not published, EU:T:2016:133), the Commission was removed from the present case as a representative of the European Union, following the applicants’ partial withdrawal from the proceedings.
11 On 11 March 2016, the Commission, by document lodged at the General Court Registry, applied for leave to intervene in support of the form of order sought by the Court of Justice of the European Union.
12 On 14 March 2016, the Court of Justice of the European Union lodged its defence.
13 On 4 April 2016, the General Court decided that a second exchange of pleadings was unnecessary. Furthermore, by way of a measure of organisation of procedure as provided for in Article 89 of the Rules of Procedure, the General Court asked the Court of Justice of the European Union to indicate whether it had requested and obtained permission from the applicants and the Commission in order to be able to produce certain documents in the annexes to the defence that related to the case which had given rise to the judgment of 16 November 2011, ASPLA v Commission (T‑76/06, not published, EU:T:2011:672) (‘Case T‑76/06’), and the case which had given rise to the judgment of 16 November 2011, Álvarez v Commission (T‑78/06, not published, EU:T:2011:673) (‘Case T‑78/06’).
14 On 19 April 2016, the Court of Justice of the European Union answered the question referred to in paragraph 13 above. It contended that the General Court should take the view, principally, that the Court of Justice of the European Union was under no duty to seek and obtain permission from the applicants and the Commission in order to be able to produce the documents relating to Cases T‑76/06 and T‑78/06 and, in the alternative, that the applicants and the Commission had given that permission implicitly. In the further alternative, the Court of Justice of the European Union requested that its response be treated as an application for a measure of organisation of procedure aimed at seeking from the General Court, in the present action, an order requiring the production of the documents constituting the case-files in Cases T‑76/06 and T‑78/06 and, in particular, the documents annexed to the defence.
15 On 25 April 2016, the President of the Third Chamber (Extended Composition) of the General Court decided, first, to remove from the file the documents in the annexes to the defence lodged in the present case that related to Cases T‑76/06 and T‑78/06. That decision was justified by the fact, on the one hand, that the Court of Justice of the European Union had neither sought nor obtained permission from the parties in Cases T‑76/06 and T‑78/06 in order to be able to produce the documents in question and, on the other hand, that it had not requested access to the files in those cases pursuant to Article 38(2) of the Rules of Procedure. Secondly, the President of the Third Chamber (Extended Composition) decided, pursuant to Article 88(3) of the Rules of Procedure, to invite the applicants to comment on the application for a measure of organisation of procedure which had been made in the further alternative by the Court of Justice of the European Union in its reply of 19 April 2016, referred to in paragraph 14 above.
16 By order of 28 April 2016, ASPLA and Armando Álvarez v European Union (T‑40/15, not published), the President of the Third Chamber (Extended Composition) of the General Court granted the Commission’s application for leave to intervene in support of the form of order sought by the Court of Justice of the European Union and stated that the rights enjoyed by the Commission would be those provided for in Article 116(6) of the Rules of Procedure of 2 May 1991.
17 On 2 May 2016, the General Court allowed the applicants to lodge a reply, following their submission of a duly reasoned application.
18 On 10 May, the applicants expressed their views on the application for a measure of organisation of procedure referred to in paragraph 15 above. In that regard, they submitted that they did not object to the General Court’s adopting that measure of organisation of procedure should it consider it appropriate to do so.
19 On 31 May 2016, the General Court held that the preparation and settlement of the present case made it necessary, in the light of its subject matter, for the files in Cases T‑76/06 and T‑78/06 to be made available to it. Thus, by way of a measure of organisation of procedure as provided for in Article 89 of the Rules of Procedure, the General Court decided to enter in the file in the present case the files in Cases T‑76/06 and T‑78/06.
20 On 13 June 2016, the applicants lodged their reply.
21 On 17 June 2016, the Court of Justice of the European Union requested service of the files in Cases T‑76/06 and T‑78/06.
22 On 25 July 2016, the Court of Justice of the European Union lodged its rejoinder.
23 On 23 September 2016, the General Court sent a question to the applicants and asked them to produce certain documents. The applicants complied with those requests by letter of 10 October 2016.
24 The parties presented oral argument and answered the questions put to them by the General Court at the hearing on 24 November 2016.
25 By letter lodged at the General Court Registry on 6 December 2016, the applicants’ counsel informed the General Court that, in one of its answers to an oral question, it had made an error which had been recorded in the minutes of the hearing.
26 By order of 16 December 2016, the oral part of the procedure was reopened. On 19 December 2016, the applicants’ letter referred to in paragraph 25 above was entered in the case-file.
27 On 21 December 2016, the Court of Justice of the European Union lodged its observations on the letter referred to in paragraph 25 above.
28 On 9 January 2017, the oral part of the procedure was closed.
29 The applicants claim that the General Court should:
– order the Court of Justice of the European Union to make good the damage caused to them as a result of the infringement of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, by paying compensation of EUR 3 495 038.66, plus compensatory and default interest at the rate applied by the European Central Bank (ECB) to its main refinancing operations, increased by two percentage points, starting from the date when the application was lodged;
– order the Court of Justice of the European Union to pay the costs.
30 The Court of Justice of the European Union, supported by the Commission, contends that the General Court should:
– principally, declare the action inadmissible or, failing that, declare it partially inadmissible so far as concerns the damage alleged to have occurred before 27 January 2010.
– in the alternative, dismiss the claim for compensation for the alleged material damage as unfounded;
– order the applicants to pay the costs.
Law
Admissibility
31 The Court of Justice of the European Union raises two pleas of inadmissibility, the first alleging that the application lacks clarity and precision, and the second alleging that the claim for compensation for material damage is time-barred.
The principal plea of inadmissibility, alleging that the application lacks clarity and precision
32 The Court of Justice of the European Union submits that the action must be declared inadmissible in its entirety, on the ground that the application lacks clarity and precision with respect to the damage suffered individually by ASPLA and Armando Álvarez.
33 In that regard, it should be recalled that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, read with the first paragraph of Article 53 thereof, and Article 44(1)(c) of the Rules of Procedure of 2 May 1991, an application must set out the subject matter of the proceedings and a summary of the pleas in law on which it is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without any further information. In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for a plea to be admissible, that the essential matters of law and fact relied on are stated, at least in summary form, coherently and intelligibly in the application itself. More specifically, in order to satisfy those requirements, an application for compensation for damage said to have been caused by an EU institution must indicate the evidence from which the conduct which the applicant alleges against the institution can be identified, the reasons why the applicant considers that there is a causal link between the conduct and the damage which it claims to have sustained, and the nature and extent of that damage (see judgment of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 53 and the case-law cited).
34 In the present case, in the first place, it is true that, as the Court of Justice of the European Union notes, the relief sought in the application includes a claim for compensation for damage assessed comprehensively.
35 However, it is apparent from the presentation of the application and the documents accompanying it that the action was brought by both ASPLA and Armando Álvarez. Furthermore, the claims set out in the application, read in the light of the content of the latter, seek an order awarding compensation for the material damage allegedly suffered by the applicants as a result of an alleged breach of the requirements associated with the obligation to adjudicate within a reasonable time (‘obligation to adjudicate within a reasonable time’) in Cases T‑76/06 and T‑78/06, concerning ASPLA and Armando Álvarez respectively.
36 Moreover, as regards the identification of the damage suffered by each of the applicants, it is important to point out that that question calls for an examination of the evidence which they have adduced and for that reason falls to be considered as part of the assessment of the merits of the present action. In any event, it is apparent from the case-file that the applicants supplied the information necessary to identify the damage suffered by each of them.
37 In the second place, it is true that the applicants submit that the length of the proceedings in Cases T‑76/06 and T‑78/06 exceeded by 24 months and by 28 months respectively the reasonable time for adjudication, on the ground that, in each of those cases, they were notified of the date of the hearing on 14 January 2011, not two years after the Commission had lodged its rejoinder, that is to say on 12 February 2009 and 6 October 2008 respectively.
38 The applicants further contend that the reasonable time for adjudicating in Cases T‑76/06 and T‑78/06 was exceeded, on average, by 25 and a half months, and they assess the damage caused to them by means of a simple pro rata calculation based on the total of the sums they paid over the course of the proceedings in Cases T‑76/06 and T‑78/06 and in the cases which gave rise to the judgments of 22 May 2014, ASPLA v Commission (C‑35/12 P, EU:C:2014:348), and of 22 May 2014, Armando Álvarez v Commission (C‑36/12 P, EU:C:2014:349).
39 However, it must be noted that, in its defence, the Court of Justice of the European Union raises an objection of inadmissibility alleging that the action is time-barred. Moreover, it disputes the existence of the alleged breach of the obligation to adjudicate within a reasonable time as well as the extent of any such breach. It also disputes the existence of the alleged damage and its extent. It further contends that there is no causal link. Finally, at the hearing, the Court of Justice of the European Union had the opportunity to comment on the applicants’ reply to a written question put by the General Court, in which the applicants indicated the date on which they had begun to suffer damage in Cases T‑76/06 and T‑78/06 respectively.
40 It follows that the applicants have provided the information necessary to identify the damage they each suffered and that the Court of Justice of the European Union has had an opportunity to present its arguments in defence, not least at the hearing. That information also enables the General Court to give a ruling.
41 The first plea of inadmissibility must therefore be dismissed.
The plea of inadmissibility raised in the alternative, alleging that the claim for compensation for the material damage claimed is time-barred
42 The Court of Justice of the European Union submits that the action is inadmissible in that it seeks compensation for damage suffered more than five years before the present action was brought, that is to say prior to 27 January 2010.
43 In that regard, it should be recalled that Article 46 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court pursuant to the first paragraph of Article 53 of that same Statute, provides as follows:
‘Proceedings against the Union in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto. The period of limitation shall be interrupted if proceedings are instituted before the Court of Justice or if prior to such proceedings an application is made by the aggrieved party to the relevant institution of the Union …’
44 It follows from case-law that the function of the limitation period is to reconcile protection of the rights of the aggrieved person and the principle of legal certainty. The length of the limitation period was determined by taking into account, in particular, the time that the party which has allegedly suffered harm needs to gather the appropriate information for the purpose of a possible action and to verify the facts likely to provide the basis of that action (judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 33; see also, to that effect, order of 18 July 2002, Autosalone Ispra dei Fratelli Rossi v Commission, C‑136/01 P, EU:C:2002:458, paragraph 28).
45 In accordance with settled case-law, the limitation period begins to run once the requirements governing the obligation to provide compensation for damage are satisfied (see judgment of 8 November, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 34 and the case-law cited).
46 It is, admittedly, appropriate to interpret Article 46 of the Statute of the Court of Justice of the European Union as meaning that limitation cannot constitute a valid defence to a claim by a person who has suffered damage in the case where that person only belatedly became aware of the event giving rise to it and thus could not have had a reasonable time in which to submit his application before the expiry of the limitation period. However, the conditions to which the obligation to pay compensation for damage referred to in the second paragraph of Article 340 TFEU is subject and, therefore, the rules on limitation periods which govern actions relating to that compensation for such damage may be based only on strictly objective criteria (see judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraphs 35 and 36 and the case-law cited).
47 Furthermore, in accordance with settled case-law, the subjective appraisal of the reality of the damage by the victim cannot be taken into consideration for the purpose of determining the moment at which the limitation period begins to run in proceedings brought against the European Union for non-contractual liability (see judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 37 and the case-law cited; judgment of 28 February 2013, Inalca and Cremonini v Commission, C‑460/09 P, EU:C:2013:111, paragraph 70).
48 In the present case, it is important to note that ‘the event giving rise’ to the present ‘proceedings against the European Union’ is a procedural irregularity in the form of an alleged failure to comply with the obligation to adjudicate within a reasonable time that is incumbent on an EU court. That fact must therefore be taken into account when it comes to determining the starting point of the five-year limitation period provided for in Article 46 of the Statute of the Court of Justice of the European Union. In particular, the limitation period cannot start to run from a date on which the event giving rise to the proceedings is still ongoing and the starting point for that period must be set as a date on which the event giving rise to the proceedings has fully materialised.
49 Thus, in the specific case of an action for damages aimed at securing compensation for damage allegedly suffered as a result of a possible failure to adjudicate within a reasonable time, the starting point for the five-year limitation period referred to in Article 46 of the Statute of the Court of Justice of the European Union must, where the period taken to adjudicate has been brought to an end by a decision, be determined as being the date on which that decision was adopted. This, after all, is a definite date determined on the basis of objective criteria. It guarantees compliance with the principle of legal certainty and serves to protect the rights of the applicants.
50 In the present case, the applicants seek compensation for the damage they claim to have suffered as a result of the time taken to adjudicate in Cases T‑76/06 and T‑78/06. Those cases were closed by judgments of 16 November 2011, ASPLA v Commission (T‑76/06, not published, EU:T:2011:672), and of 16 November 2011, Álvarez v Commission (T‑78/06, not published, EU:T:2011:673). The limitation period therefore started to run on 16 November 2011.
51 Furthermore, the applicants brought their action in the present case and thus interrupted the limitation period on 27 January 2015, that is to say before the expiry of the five-year period provided for in Article 46 of the Statute of the Court of Justice of the European Union. The present action is therefore not time-barred.
52 In the light of the foregoing, the second plea of inadmissibility must be dismissed.
Substance
53 Under the second paragraph of Article 340 TFEU, in the case of non-contractual liability, the Union must, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.
54 It is settled case-law that the second paragraph of Article 340 TFEU is to be interpreted as meaning that the non-contractual liability of the European Union and the exercise of the right to compensation for damage suffered depend on the satisfaction of a number of conditions, namely the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between that conduct and the damage complained of (judgments of 29 September 1982, Oleifici Mediterranei v EEC, 26/81, EU:C:1982:318, paragraph 16, and of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 106).
55 If any one of those conditions is not satisfied, the entire action must be dismissed and it is unnecessary to consider the other conditions for non-contractual liability on the part of the European Union (judgment of 14 October 1999, Atlanta v European Community, C‑104/97 P, EU:C:1999:498, paragraph 65; see also, to that effect, judgment of 15 September 1994, KYDEP v Council and Commission, C‑146/91, EU:C:1994:329, paragraph 81). Moreover, the EU judicature is not required to examine those conditions in any particular order (judgment of 18 March 2010, Trubowest Handel and Makarov v Council and Commission, C‑419/08 P, EU:C:2010:147, paragraph 42; see also, to that effect, judgment of 9 September 1999, Lucaccioni v Commission, C‑257/98 P, EU:C:1999:402, paragraph 13).
56 In the present case, first, the applicants submit that the length of the proceedings in Cases T‑76/06 and T‑78/06 was in breach of the obligation to adjudicate within a reasonable time. Secondly, they claim that that breach caused them material damage for which they must be compensated.
The alleged breach of the obligation to adjudicate within a reasonable time in Cases T‑76/06 and T‑78/06
57 The applicants claim that the length of the proceedings in Cases T‑76/06 and T‑78/06 was in breach of the obligation to adjudicate within a reasonable time, which constitutes a sufficiently serious infringement of a rule of EU law intended to confer rights upon individuals. In particular, they submit that that breach is established by the judgments of 26 November 2013, Kendrion v Commission (C‑50/12 P, EU:C:2013:771), and of 26 November 2013, Groupe Gascogne v Commission (C‑58/12 P, EU:C:2013:770). They go on to say that Cases T‑76/06 and T‑78/06, on the one hand, and the cases which gave rise to the judgments of 16 November 2011, Kendrion v Commission (T‑54/06, not published, EU:T:2011:667), of 16 November 2011, Groupe Gascogne v Commission (T‑72/06, not published, EU:T:2011:671), and of 16 November 2011, Sachsa Verpackung v Commission (T‑79/06, not published, EU:T:2011:674), on the other hand, had the same subject matter (the same Commission decision), were characterised by comparable facts and a comparable cause of action (the same cartel) and exhibited identical or similar procedural circumstances.
58 They submit that the oral part of the procedure in Cases T‑76/06 and T‑78/06 should have been opened two years after the Commission’s rejoinder was lodged, that is to say on 12 February 2009 and 6 October 2008 respectively. They were informed of the date for the hearing on 14 January 2011, however. They infer from this that the proceedings in Cases T‑76/06 and T‑78/06 exceeded the reasonable time for adjudication by 24 months and 28 months respectively.
59 The Court of Justice of the European Union disputes those allegations. First, it contends, the General Court alone has jurisdiction to hear and determine the present action and the conclusions drawn by the Court of Justice in the judgments of 26 November 2013, Kendrion v Commission (C‑50/12 P, EU:C:2013:771), and of 26 November 2013, Gascogne v Commission (C‑58/12 P, EU:C:2013:770) cannot be transposed to Cases T‑76/06 and T‑78/06. Secondly, the time that elapsed between the end of the written part of the procedure and the opening of the oral part of the procedure in Cases T‑76/06 and T‑78/06 exceeded by only 17 months and 21 months respectively the average length of that stage of the procedure in cases relating to the application of competition law that were heard by the General Court between 2007 and 2010. Moreover, the total length of the proceedings in Cases T‑76/06 and T‑78/06 exceeded by only 15 months the average length of proceedings in cases relating to the application of competition law that were heard by the General Court between 2006 and 2015. Thirdly, Cases T‑76/06 and T‑78/06 should be classified as complex. Fourthly, account should be taken of the fact that the Court of Justice of the European Union operates in a multilingual environment which is unparalleled in Europe and indeed the world. Furthermore, the 15 cases relating to actions brought against Decision C(2005) 4634 involved six different languages. Fifthly, account should be taken of the limited term of office of the judges and the long period of sickness of one of the members of the chamber to which the two cases at issue had been allocated. Sixthly, the applicants’ conduct is not entirely divorced from the build-up of a delay in Cases T‑76/06 and T‑78/06.
60 In that regard, it should be noted that the second paragraph of Article 47 of the Charter of Fundamental Rights provides in particular that ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law’.
61 Such a right, the existence of which had been affirmed before the entry into force of the Charter of Fundamental Rights as a general principle of EU law, was held to be applicable in the context of proceedings brought against a Commission decision (see judgment of 16 July 2009, Der Grüne Punkt — Duales System Deutschland v Commission, C‑385/07 P, EU:C:2009:456, paragraph 178 and the case-law cited).
62 In the present case, it must be pointed out that, in Cases T‑76/06 and T‑78/06, the proceedings began on 24 February 2006 with the lodging of an application by each of the applicants at the General Court Registry and ended with the delivery of the judgments of 16 November 2011, ASPLA v Commission (T‑76/06, not published, EU:T:2011:672), and of 16 November 2011, Álvarez v Commission (T‑78/06, not published, EU:T:2011:673). Thus, the length of the proceedings in each of those cases was approximately five years and nine months.
63 It follows from a detailed examination of the files in Cases T‑76/06 and T‑78/06 respectively that the length of the proceedings in each case cannot be justified by any of the specific circumstances of those cases.
64 In the first place, it is important to observe that Cases T‑76/06 and T‑78/06 concerned disputes relating to the existence of an infringement of the competition rules and that, in accordance with case-law, the fundamental requirement of legal certainty on which economic operators must be able to rely and the aim of ensuring that competition is not distorted in the internal market are of considerable importance not only for an applicant himself and his competitors but also for third parties, in view of the large number of persons concerned and the financial interests involved (judgment of 16 July 2009, Der Grüne Punkt — Duales System Deutschland v Commission, C‑385/07 P, EU:C:2009:456, paragraph 186).
65 In the second place, it should be noted that, in Case T‑76/06, a period of some three years and 10 months, that is to say 46 months, elapsed between the end of the written part of the procedure as marked by the lodgement of the Commission’s rejoinder on 16 February 2007, on the one hand, and the opening of the oral part of the procedure on 23 November 2010, on the other. Furthermore, in Case T‑78/06, a period of some four years and two months, that is to say 50 months, elapsed between the end of the written part of the procedure on 9 October 2006 and the opening of the oral part of the procedure on 23 November 2010.
66 The steps taken during that period include summarising the arguments of the parties, preparing the cases, analysing the facts and law of the disputes and preparing the oral part of the procedure. The length of that period depends, in particular, on the complexity of the dispute, the conduct of the parties and the occurrence of any procedural incidents.
67 As regards the complexity of the dispute, it should be recalled first that Cases T‑76/06 and T‑78/06 concerned actions brought against a Commission decision relating to a proceeding under Article 101 TFEU.
68 As is apparent from the file in Cases T‑76/06 and T‑78/06, actions concerning the application of competition law by the Commission exhibit a greater degree of complexity than other types of case, given, in particular, the length of the contested decision, the size of the case-file and the need to carry out a detailed assessment of many complex facts which are often spread over long periods and distances.
69 Thus, a period of 15 months between the end of the written part of the procedure and the opening of the oral part of the procedure is, in principle, an appropriate length of time for dealing with cases concerning the application of competition law such as Cases T‑76/06 and T‑78/06.
70 Next, account must be taken of the fact that several actions had been brought against Decision C(2005) 4634.
71 Actions brought against a single decision adopted by the Commission pursuant to EU competition law need, in principle, to be dealt with in parallel, including where those actions are not joined. The parallel processing of such actions is justified in particular by the connection between them and the need to ensure consistency in their analysis and in the response to be given to them.
72 Thus, the parallel processing of connected cases may be a justification for extending by a period of one month for each additional connected case the interval between the end of the written part of the procedure and the opening of the oral part of that procedure.
73 In the present case, 15 actions had been brought against Decision C(2005) 4634. However, one applicant had withdrawn its action against that decision (order of 6 July 2006, Cofira-Sac v Commission, T‑43/06, not published, EU:T:2006:192), and two actions brought against Decision C(2005) 4634 had culminated in the delivery of the judgments of 13 September 2010, Trioplast Wittenheim v Commission (T‑26/06, not published, EU:T:2010:387) and of 13 September 2010, Trioplast Industrier v Commission (T‑40/06, EU:T:2010:388).
74 In those circumstances, the need to deal with the other 12 cases relating to actions brought against Decision C(2005) 4634 justified an extension of the proceedings by 11 months in Case T‑76/06 and Case T‑78/06.
75 Consequently, a period of 26 months (15 months plus 11 months) between the end of the written part of the procedure and the opening of the oral part of the procedure was, in principle, an appropriate length of time for dealing with Cases T‑76/06 and T‑78/06.
76 The conduct of the parties and the occurrence of procedural incidents in Cases T‑76/06 and T‑78/06 had no impact on the time that elapsed between the end of the written part of the procedure and the opening of the oral part of the procedure in each of those cases.
77 Lastly, account must be taken of the fact that, in Decision C(2005) 4634, the Commission imposed a fine on the applicants jointly and severally, on the ground that Armando Álvarez held 98.6% of ASPLA’s capital and was therefore presumed to have exercised a decisive influence over the latter. So it was that, in the action it brought in Case T‑78/06, Armando Álvarez sought to have Decision C(2005) 4634 annulled in so far as that decision had found it to be liable for the infringement which it had found.
78 It follows that there was an extremely close connection between Cases T‑76/06 and T‑78/06 and that connection justified dealing with Case T‑78/06 in tandem with and at the same pace as Case T‑76/06. Although the written part of the procedure in Case T‑78/06 was closed four months earlier than the written part of the procedure in Case T‑76/06, the oral part of the procedure in Case T‑78/06 could not therefore be opened any sooner than the date of the opening of the oral part of the procedure in Case T‑76/06.
79 Moreover, as is apparent from the case-files in Cases T‑76/06 and T‑78/06, the Chamber responsible for those cases indicated, on 23 November 2010, that it was in favour of those cases being joined for the purposes of the oral part of the procedure, without prejudice to the observations of the parties in each of those cases. In their observations on the possible joinder of Cases T‑76/06 and T‑78/06, both applicants explained that they saw no reason why the two cases should not be joined if the General Court considered that this might make for greater procedural efficiency. The Commission, however, opposed the joinder, which the General Court did not ultimately order.
80 The extremely close connection between Case T‑76/06 and Case T‑78/06 therefore justified an extension by an additional four months of the period between the end of the written part of the procedure and the opening of the oral part of the procedure in Case T‑78/06.
81 Consequently, in the light of the particular circumstances of Cases T‑76/06 and T‑78/06, the fact that 46 months elapsed between the end of the written part of the procedure and the opening of the oral part of the procedure in Case T‑76/06 and that 50 months elapsed between the end of the written part of the procedure and the opening of the oral part of the procedure in Case T‑78/06 shows that there was a period of unjustified inactivity of 20 months in each of those cases.
82 In the third place, an examination of the files in Cases T‑76/06 and T‑78/06 respectively has not revealed anything that would support the conclusion that there was a period of unjustified inactivity between the date of lodging the applications and the date of lodging the rejoinders, or between the opening of the oral part of the procedure and the delivery of the judgments of 16 November 2011, ASPLA v Commission (T‑76/06, not published, EU:T:2011:672), and of 16 November 2011, Álvarez v Commission (T‑78/06, not published, EU:T:2011:673).
83 It follows that the procedure followed in Cases T‑76/06 and T‑78/06, which culminated in the delivery of the judgments of 16 November 2011, ASPLA v Commission (T‑76/06, not published, EU:T:2011:672), and of 16 November 2011, Álvarez v Commission (T‑78/06, not published, EU:T:2011:673), infringed the second paragraph of Article 47 of the Charter of Fundamental Rights in that it exceeded by 20 months the reasonable time for adjudicating in those cases, which constitutes a sufficiently serious breach of a rule of EU law intended to confer rights on individuals.
The material damage alleged and the purported causal link
84 It is settled case-law that the damage for which compensation is sought in an action to establish non-contractual liability on the part of the European Union must be actual and certain, which it is for the applicant to prove (see judgment of 9 November 2006, Agraz and Others v Commission, C‑243/05 P, EU:C:2006:708, paragraph 27 and the case-law cited). It falls to the applicant to adduce conclusive proof both of the existence and of the extent of the damage he alleges (see judgment of 16 September 1997, Blackspur DIY and Others v Council and Commission, C‑362/95 P, EU:C:1997:401, paragraph 31 and the case-law cited).
85 It is also settled case-law that the condition under the second paragraph of Article 340 TFEU relating to a causal link concerns a sufficiently direct causal nexus between the conduct of the institutions and the damage (judgments of 18 March 2010, Trubowest Handel and Makarov v Council and Commission, C‑419/08 P, EU:C:2010:147, paragraph 53, and of 14 December 2005, Beamglow v Parliament and Others, T‑383/00, EU:T:2005:453, paragraph 193; see also, to that effect, judgment of 4 October 1979, Dumortier and Others v Council, 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79, EU:C:1979:223, paragraph 21). It is for the applicant to adduce proof of the existence of a causal link between the conduct complained of and the damage alleged (see judgment of 30 September 1998, Coldiretti and Others v Council and Commission, T‑149/96, EU:T:1998:228, paragraph 101 and the case-law cited).
86 In the present case, first, the applicants submit in their application that they suffered material damage in the form of a loss sustained because, during the average overrun of the proceedings of 25 and a half months, they paid interest on the amount of the fine which had been imposed on them by Decision C(2005) 4634 (‘the interest on the amount of the fine’), and because, during that overrun, they paid charges for the bank guarantees which they had provided so as not to have to effect immediate settlement of the amount of the fine (‘the bank guarantee charges’). That damage should be assessed by means of a simple pro rata calculation based on the bank guarantee charges paid between 20 February 2006 and 1 August 2014 as well as on the interest on the amount of the fine that was paid between 15 March 2006 and 22 July 2014.
87 Secondly, the applicants maintain that there is a clear causal link between the damage alleged and the purported failure to adjudicate within a reasonable time. After all, if there had not been a failure to adjudicate within a reasonable time in Cases T‑76/06 and T‑78/06, the applicants would not have had to pay interest on the amount of the fine and the bank guarantee charges for 25 and a half months.
88 The Court of Justice of the European Union first disputes the applicants’ allegations relating to the material damage they claim to have suffered.
89 Principally, it contends that the interest on the amount of the fine and the bank guarantee charges cannot be classified as damage. The interest on the amount of the fine serves to make up for the fact that the Commission had no access to a sum of money to which it was entitled and the applicants would be unjustly enriched if granted compensation in an amount equal to that interest. Moreover, the bank guarantee charges are a cost which the applicants voluntarily accepted in return for the option given to them of not having to effect immediate settlement of the fine. Thus, in so far as that cost came with an advantage, there is nothing to support the view that it constitutes damage stricto sensu.
90 In the alternative, the Court of Justice of the European Union submits that the method used by the applicants to calculate the material damage allegedly caused to them is incorrect and does not provide a means of quantifying the damage. In its contention, a pro rata calculation such as that carried out by the applicants does not make it possible to calculate the proportion of costs attributable to the period of unjustified delay. Moreover, the criteria used by the applicants to quantify the damage caused to them is not such as to enable them to calculate the hypothetical damage arising from the alleged delay in the proceedings in Cases T‑76/06 and T‑78/06. For, in order to assess the existence of any hypothetical damage they may have suffered as a result of the unjustified delay in the proceedings, the costs which they actually had to bear in order to pay the fine must be compared with the hypothetical costs they would have incurred if the proceedings had not been delayed and they had paid the fine earlier. It may well be that, in certain circumstances, it is more advantageous for an undertaking to defer payment of the fine, even if it thereby incurs the obligation to pay additional interest at a fixed rate such as the 3.56% rate set by the Commission. In its rejoinder, the Court of Justice of the European Union also says that deferred payment, by definition, procures an advantage and that advantage is present in this case.
91 In the second place, the Court of Justice of the European Union submits that there is no sufficiently direct causal link between the alleged material damage relating to the payment of bank guarantee charges and the payment of interest on the amount of the fine, on the one hand, and the alleged breach of the obligation to adjudicate within a reasonable time, on the other hand. That material damage is the consequence of the applicants’ own decision not to discharge their obligation to pay the fine within the time limit laid down in Decision C(2005) 4634, even though that decision was enforceable. The applicants’ decision was in place at the time when the applicants opted to provide a bank guarantee and throughout the period during which they maintained that guarantee.
– Preliminary observations
92 It should be noted that Article 2 of Decision C(2005) 4634 provided that the fines imposed by that decision had to be paid within three months of the date of its notification. Pursuant to Article 86 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1), Article 2 of that decision stated that, after expiry of that three-month period, interest was to be automatically payable at the interest rate applied by the ECB to its main refinancing operations on the first day of the month in which the decision was adopted, plus 3.5 percentage points, namely 5.56%.
93 In accordance with the first paragraph of Article 299 TFEU, Decision C(2005) 4634 was enforceable, since Article 2 thereof imposed a pecuniary obligation on the applicants. Furthermore, the fact that an action for annulment was brought against that decision, pursuant to Article 263 TFEU, did not call into question the enforceability of that decision, in so far as, under Article 278 TFEU, actions brought before the Court of Justice of the European Union are not to have suspensory effect.
94 When the Commission notified Decision C(2005) 4634 to the applicants, it informed them that, if they instituted proceedings before the General Court or the Court of Justice, no recovery measures would be taken as long as the case was pending, provided that two conditions were satisfied before the date of expiry of the time for payment. Pursuant to Article 86(5) of Regulation No 2342/2002, those two conditions were, first, that the amount receivable by the Commission was to produce interest from the date of expiry of the time for payment at a rate of 3.56%, and, secondly, that a bank guarantee acceptable to the Commission, covering both the debt and the interest on or increased amount of the debt, had to be provided before the payment deadline.
95 In the pleadings lodged by them in the present case, the applicants explain that they decided not to effect immediate payment of the amount which had been imposed on them and to provide a bank guarantee, in accordance with the option made available to them by the Commission in return for the payment of interest at a rate of 3.56%.
96 The material damage alleged and the purported causal link between that damage and the breach of the obligation to adjudicate within a reasonable time in Cases T‑76/06 and T‑78/06 must be examined in the light of those observations.
– Payment of interest on the amount of the fine
97 In the first place, it follows from the documents produced by the applicants and the explanations provided orally by their counsel, of which formal note was taken in the minutes of the hearing, that the interest on the amount of the fine which fell due during the proceedings in Cases T‑76/06 and T‑78/06 was paid in full by Armando Álvarez on 22 July 2014.
98 It follows that ASPLA clearly did not suffer personal damage in the form of the payment of interest on the amount of the fine during the period by which the reasonable time for adjudicating in Cases T‑76/06 and T‑78/06 was exceeded.
99 In the second place, so far as concerns the damage allegedly suffered by Armando Álvarez, it is important to note that, as a result of the combined application of the first paragraph of Article 299 and Article 278 TFEU, referred to in paragraph 93 above, the amount of the fine imposed by Decision C(2005) 4634 was owed to the Commission despite the fact that an action for annulment had been brought against that decision. Thus, the interest on the amount of the fine, the rate of which was 3.56%, must be classified as default interest.
100 Moreover, it should be pointed out that, during the proceedings in Cases T‑76/06 and T‑78/06, Armando Álvarez paid neither the amount of the fine nor the default interest. Thus, during the proceedings in those cases, Armando Álvarez was in possession of the sum corresponding to the amount of that fine plus default interest.
101 The applicants have adduced no evidence to show that, during the period by which the reasonable time for adjudicating in Cases T‑76/06 and T‑78/06 was exceeded, the amount of the default interest that was later paid to the Commission by Armando Álvarez was greater than the advantage conferred on that company by possession of the sum equal to the amount of the fine plus default interest. In other words, the applicants have not demonstrated that the interest on the amount of the fine that accrued during the period by which the reasonable time for adjudication was exceeded was greater than the advantage conferred on Armando Álvarez by not paying the fine plus the interest due on the date on which the breach of the obligation to adjudicate within a reasonable time was committed and the interest that fell due while that breach was ongoing.
102 It follows that the applicants have not demonstrated that, during the period by which the reasonable time for adjudicating in Cases T‑76/06 and T‑78/06 was exceeded, Armando Álvarez suffered actual and certain damage as a result of paying default interest on the amount of the fine imposed by Decision C(2005) 4634.
103 The claim for compensation for the alleged damage consisting in the payment by the applicants of additional interest on the amount of the fine must therefore be dismissed, there being no need to assess the existence of the causal link alleged.
– Payment of the bank guarantee charges
104 In the first place, as regards the damage, it is apparent from the documents before the Court both that ASPLA provided a bank guarantee in an amount of EUR 10 731 000 plus interest and that Armando Álvarez provided several bank guarantees, from four different banks, amounting in total to EUR 31 269 000 plus interest. Moreover, the documents before the Court show that each applicant paid bank guarantee charges, in the form of quarterly commissions, during the proceedings in Cases T‑76/06 and T‑78/06.
105 Thus, in the light of the documents before the Court, it must be found that both applicants have demonstrated that they personally suffered actual and certain damage consisting in a loss sustained as a result of paying bank guarantee charges during the period by which the reasonable time for adjudicating in Cases T‑76/06 and T‑78/06 was exceeded.
106 In the second place, as regards the causal link, it should be noted that, if the length of the proceedings in Cases T‑76/06 and T‑78/06 had not exceeded the reasonable time for adjudication, the applicants would not have had to pay any bank guarantee charges during that excess period.
107 Thus, there is a causal link between the breach of the obligation to adjudicate within a reasonable time in Cases T‑76/06 and T‑78/06 and the occurrence of the damage suffered by the applicants in the form of a loss sustained as a result of their having both paid bank guarantee charges during the period by which the reasonable time for adjudication was exceeded.
108 It should also be noted that the conduct complained of must, it is true, be the determining cause of the damage (order of 31 March 2011, Mauerhofer v Commission, C‑433/10 P, not published, EU:C:2011:204, paragraph 127, and judgment of 10 May 2006, Galileo International Technology and Others v Commission, T‑279/03, EU:T:2006:121, paragraph 130; see also, to that effect, judgment of 18 March 2010, Trubowest Handel and Makarov v Council and Commission, C‑419/08 P, EU:C:2010:147, paragraph 61). In other words, even in the case of a possible contribution by the institutions to the damage for which compensation is sought, that contribution might be too remote because of some responsibility resting on others, possibly the applicant (judgment of 18 March 2010, Trubowest Handel and Makarov v Council and Commission, C‑419/08 P, EU:C:2010:147, paragraph 59, and order of 31 March 2011, Mauerhofer v Commission, C‑433/10 P, not published, EU:C:2011:204, paragraph 132).
109 Furthermore, it has already been held that alleged damage consisting in bank guarantee charges incurred by a company penalised by a Commission decision later annulled by the General Court was not the direct consequence of the unlawfulness of that decision, on the ground that that damage was the consequence of that company’s own decision to provide a bank guarantee so as not to comply with the obligation to pay the fine within the period stipulated in the contested decision (see, to that effect, judgment of 21 April 2005, Holcim (Deutschland) v Commission, T‑28/03, EU:T:2005:139, paragraph 123, and order of 12 December 2007, Atlantic Container Line and Others v Commission, T‑113/04, not published, EU:T:2007:377, paragraph 38).
110 In the present case, however, it should be noted, first, that, in February 2006, that is to say at the time when the applicants brought their actions and each provided one or more bank guarantees, the breach of the obligation to adjudicate within a reasonable time was unforeseeable. Furthermore, the applicants could legitimately expect their respective actions to be dealt with within a reasonable time.
111 Secondly, the reasonable time for adjudicating in Cases T‑76/06 and T‑78/06 was exceeded after the applicants’ initial decision to provide bank guarantees.
112 Thus, the facts of the present case differ substantially from those established in the judgment of 21 April 2005, Holcim (Deutschland) v Commission (T‑28/03, EU:T:2005:139), and the order of 12 December 2007, Atlantic Container Line and Others v Commission (T‑113/04, not published, EU:T:2007:377), referred to in paragraph 109 above. The link between the fact that the reasonable time for adjudicating in Cases T‑76/06 and T‑78/06 was exceeded and the payment of bank guarantee charges during that excess period cannot, therefore, contrary to the claim made by the Court of Justice of the European Union, have been severed by the applicants’ initial decision not to effect immediate payment of the fine imposed by Decision C(2005) 4634 and to provide a bank guarantee.
113 It follows that there is a sufficiently direct causal link between the breach of the obligation to adjudicate within a reasonable time in Cases T‑76/06 and T‑78/06 and the loss sustained by the applicants as a result of paying bank guarantee charges during the period by which that time was exceeded.
114 In the third place, it is important, first, to recall that the applicants allege a breach of the obligation to adjudicate within a reasonable time only in Cases T‑76/06 and T‑78/06. They do not therefore allege a breach of the obligation to adjudicate within a reasonable time as a result of the total length of the proceedings, in Case T‑76/06 inasmuch as that case gave rise to the judgment of 22 May 2014, ASPLA v Commission (C‑35/12 P, EU:C:2014:348), and in Case T‑78/06 inasmuch as that case gave rise to the judgment of 22 May 2014, Armando Álvarez v Commission (C‑36/12 P, EU:C:2014:349).
115 Thus, in the present case, it has been established only that the proceedings in Cases T‑76/06 and T‑78/06 breached the obligation to adjudicate within a reasonable time (see paragraph 83 above).
116 Next, the breach of the obligation to adjudicate within a reasonable time in Cases T‑76/06 and T‑78/06 came to an end with the delivery of the judgments of 16 November 2011, ASPLA v Commission (T‑76/06, not published, EU:T:2011:672), and of 16 November 2011, Álvarez v Commission (T‑78/06, not published, EU:T:2011:673).
117 Thus, from 16 November 2011 onwards, the applicants were in a position to assess both the existence of a breach of the obligation to adjudicate within a reasonable time in Cases T‑76/06 and T‑78/06 and the damage which they had suffered as a result of paying bank guarantee charges during the period by which that time was exceeded.
118 Lastly, Decision C(2005) 4634, which imposed a fine on the applicants, did not become final until 22 May 2014 and the option given by the Commission of providing a bank guarantee expired on that date because the applicants decided to appeal against the judgments of 16 November 2011, ASPLA v Commission (T‑76/06, not published, EU:T:2011:672), and of 16 November 2011, Álvarez v Commission (T‑78/06, not published, EU:T:2011:673).
119 It follows that payment of the bank guarantee charges after the delivery of the judgments of 16 November 2011, ASPLA v Commission (T‑76/06, not published, EU:T:2011:672), and of 16 November 2011, Álvarez v Commission (T‑78/06, not published, EU:T:2011:673), which brought to an end the breach of the obligation to adjudicate within a reasonable time in Cases T‑76/06 and T‑78/06, does not exhibit a sufficiently direct causal link with that breach, since the payment of such charges is the consequence of the personal and independent decision which the applicants took, after that breach, not to pay the fine, not to request suspension of the operation of Decision C(2005) 4634 and to appeal against the aforementioned judgments.
120 It follows from all of the foregoing that there is a sufficiently direct causal link between the breach of the obligation to adjudicate within a reasonable time in Cases T‑76/06 and T‑78/06, on the one hand, and the damage suffered by the applicants before the delivery of the judgments of 16 November 2011, ASPLA v Commission (T‑76/06, not published, EU:T:2011:672), and of 16 November 2011, Álvarez v Commission (T‑78/06, not published, EU:T:2011:673), consisting in the payment of bank guarantee charges during the period by which that reasonable time was exceeded, on the other hand.
– Assessment of the material damage suffered
121 In the first place, it is important to recall that the length of the proceedings in Cases T‑76/06 and T‑78/06 exceeded by 20 months the reasonable time for adjudicating in each of those cases (see paragraph 83 above).
122 In the second place, it has been established, in paragraphs 116 to 120 above, that the breach of the obligation to adjudicate within a reasonable time in Cases T‑76/06 and T‑78/06 had come to an end on 16 November 2011 and that there was a sufficiently direct causal link between the breach of the obligation to adjudicate within a reasonable time in Cases T‑76/06 and T‑78/06, on the one hand, and the damage which had been suffered by the applicants ‘before’ delivery of the judgments of 16 November 2011, ASPLA v Commission (T‑76/06, not published, EU:T:2011:672), and of 16 November 2011, Álvarez v Commission (T‑78/06, not published, EU:T:2011:673), on the other.
123 Thus, the reasonable time for adjudicating in Cases T‑76/06 and T‑78/06 was exceeded 20 months before delivery of the judgments of 16 November 2011, ASPLA v Commission (T‑76/06, not published, EU:T:2011:672), and of 16 November 2011, Álvarez v Commission (T‑78/06, not published, EU:T:2011:673), that is to say on 16 March 2010, and it was from that date that the applicants suffered material damage.
124 In response to a written question put by the Court, the applicants, by letter of 10 October 2016, explained that they had begun suffering damage two years after the Commission lodged its rejoinder, that is to say on 6 October 2008 in Case T‑78/06, and on 12 February 2009 in Case T‑76/06.
125 Moreover, although not asked this question by the Court, the applicants went on to say, in their response of 10 October 2016, that the damage caused to them had come to an end when they were notified of the date of the hearing in Cases T‑76/06 and T‑78/06.
126 Lastly, it is apparent from the files in Cases T‑76/06 and T‑78/06 respectively that the date of the hearing in each of those cases was notified to the applicants on 14 January 2011.
127 It follows from the rules governing the procedure before the Courts of the European Union, in particular Article 21 of the Statute of the Court of Justice of the European Union and Article 44(1) of the Rules of Procedure of 2 May 1991, that the dispute is in principle determined and circumscribed by the parties and that the Courts of the European Union may not rule ultra petita (judgments of 10 December 2013, Commission v Ireland and Others, C‑272/12 P, EU:C:2013:812, paragraph 27, and of 3 July 2014, Electrabel v Commission, C‑84/13 P, not published, EU:C:2014:2040, paragraph 49).
128 Thus, the Court cannot deviate from the applicants’ claim and decide of its own motion to make good damage suffered by them after 14 January 2011, that is to say during a period chronologically different from that during which they claim to have suffered damage.
129 In the present case, therefore, the compensable damage corresponds to the bank guarantee charges paid by the applicants between 16 March 2010 and 14 January 2011.
130 In the third place, it is apparent from the documents produced by the applicants that they paid bank guarantee charges on a quarterly basis.
131 The documents before the Court show that, between 16 March 2010 and 14 January 2011, ASPLA paid the following quarterly bank guarantee charges:
Quarter | Quarterly amount | Months | Charge (EUR) |
20.2.2010-19.5.2010 | 12 259.43 | 2 | 8 172.95 |
20.5.2010-19.8.2010 | 12 259.43 | 3 | 12 259.43 |
20.8.2010-19.11.2010 | 12 259.43 | 3 | 12 259.43 |
20.11.2010-19.2.2011 | 12 259.43 | 3 | 12 259.43 |
|
| Total | 44 951.24 |
132 Thus, the bank guarantee charges paid by ASPLA in the period from 16 March 2010 to 14 January 2011 amounted to EUR 44 951.24.
133 Furthermore, the documents before the Court show that, in the period from 16 March 2010 to 14 January 2011, Armando Álvarez paid the following quarterly bank guarantee charges:
| Quarter | Quarterly amount | Months | Charge (EUR) |
| 21.2.2010-20.5.2010 | 6 109.09 | 2 | 4 072.73 |
Bank A | 21.5.2010-20.8.2010 | 6 156.34 | 3 | 6 156.34 |
| 21.8.2010-28.11.2010 | 6 203.59 | 3 | 6 203.59 |
| 29.11.2010-20.2.2011 | 6 290.57 | 3 | 6 290.57 |
|
|
|
| 22 723.23 |
|
|
|
|
|
| 22.2.2010-21.5.2010 | 6 000.00 | 2 | 4 000.00 |
Bank B | 22.5.2010-21.8.2010 | 6 000.00 | 3 | 6 000.00 |
| 22.8.2010-21.11.2010 | 6 000.00 | 3 | 6 000.00 |
| 22.11.2010-21.2.2011 | 6 000.00 | 3 | 6 000.00 |
|
|
|
| 22,000.00 |
|
|
|
|
|
| 22.2.2010-21.5.2010 | 5 839.91 | 2 | 3 893.27 |
Bank C | 21.5.2010-23.8.2010 | 5 839.91 | 3 | 5 839.91 |
| 23.8.2010-22.11.2010 | 5 839.91 | 3 | 5 839.91 |
| 22.11.2010-21.2.2011 | 5 839.91 | 3 | 5 839.91 |
|
|
|
| 21,413.00 |
|
|
|
|
|
| 16.2.2010-15.5.2010 | 12 075.34 | 2 | 8 050.23 |
Bank D | 16.5.2010-15.8.2010 | 12 180.34 | 3 | 12 180.34 |
| 16.8.2010-15.11.2010 | 12 285.34 | 3 | 12 285.34 |
| 16.11.2010-15.2.2011 | 12 390.34 | 3 | 12 390.34 |
|
|
|
| 44 906.25 |
|
|
|
|
|
|
|
| Total | 111 042.48 |
134 Thus, the bank guarantee charges paid by Armando Álvarez in the period from 16 March 2010 to 14 January 2011 amounted to EUR 111 042.48.
135 In the light of the foregoing, it is appropriate to award compensation in the amount of EUR 44 951.24 to ASPLA and compensation in the amount of EUR 111 042.48 to Armando Álvarez by way of reparation for the material damage, consisting in the payment of additional bank guarantee charges, caused to them by the breach of the obligation to adjudicate within a reasonable time in Cases T‑76/06 and T‑78/06 respectively.
– Interest
136 As is clear from their first head of claim, the applicants have asked the Court to order that any amount of compensation that it may award to them bear compensatory and default interest at the rate applied by the ECB to its main refinancing operations, increased by two percentage points, starting from the date when the application was lodged.
137 In that regard, a distinction must be drawn between compensatory interest and default interest (judgment of 27 January 2000, Mulder and Others v Council and Commission, C‑104/89 and C‑37/90, EU:C:2000:38, paragraph 55).
138 In the first place, as regards compensatory interest, it should be recalled that the adverse consequences of a lapse of time between the occurrence of the actionable event and the assessment of the compensation cannot be disregarded, inasmuch as the effects of inflation must be taken into account (see, to that effect, judgments of 3 February 1994, Grifoni v Commission, C‑308/87, EU:C:1994:38, paragraph 40, and of 13 July 2005, Camar v Council and Commission, T‑260/97, EU:T:2005:283, paragraph 138). Compensatory interest is designed to compensate for the time that passes before the judicial assessment of the amount of damage, irrespective of any delay attributable to the debtor (judgment of 12 February 2015, Commission v IPK International, C‑336/13 P, EU:C:2015:83, paragraph 37).
139 The end of the period for which such monetary revaluation is available must, in principle, coincide with the date of delivery of the judgment establishing the obligation to make good the damage suffered by the applicant (see, to that effect, judgments of 19 May 1992, Mulder and Others v Council and Commission, C‑104/89 and C‑37/90, EU:C:1992:217, paragraph 35; of 13 July 2005, Camar v Council and Commission, T‑260/97, EU:T:2005:283, paragraphs 142 and 143; and of 26 November 2008, Agraz and Others v Commission, T‑285/03, not published, EU:T:2008:526, paragraphs 54 and 55).
140 In the present case, as regards the compensation due to each of the applicants as reparation for the material damage which they have each suffered, it follows from the case-law cited in paragraph 138 above that the applicants would be entitled to request that that compensation bear compensatory interest from 16 March 2010.
141 However, by their first head of claim, the applicants ask, as they made clear by letter of 6 December 2016, that the amount of compensation to which they are entitled bear compensatory interest ‘from the date when the application was lodged’ in the present case, that is to say from 27 January 2015.
142 Consequently, the compensatory interest to be borne by the compensation due to each of the applicants as reparation for the material damage which they each suffered, runs from 27 January 2015, in accordance with the applicants’ claim.
143 Furthermore, the applicants claim to have sustained a loss but do not supply any evidence to show that the bank guarantee charges paid by ASPLA between 16 March 2010 and 14 January 2011 and the bank guarantee charges paid by Armando Álvarez between 16 March 2010 and 14 January 2011 could have produced interest at the rate applied by the ECB to its main refinancing operations, increased by two percentage points (see, to that effect, judgments of 27 January 2000, Mulder and Others v Council and Commission, C‑104/89 and C‑37/90, EU:C:2000:38, paragraph 219, and of 26 November 2008, Agraz and Others v Commission, T‑285/03, not published, EU:T:2008:526, paragraph 49).
144 Thus, the applicants cannot seek the application of compensatory interest calculated on the basis of the rate applied by the ECB to its main refinancing operations, increased by two percentage points.
145 The monetary depreciation linked to the passage of time, on the other hand, is reflected by the annual rate of inflation recorded, for the period in question, by Eurostat (the European Union’s statistical office) in the Member State where the applicants are established (see, to that effect, judgments of 27 January 2000, Mulder and Others v Council and Commission, C‑104/89 and C‑37/90, EU:C:2000:38, paragraphs 220 and 221, of 13 July 2005, Camar v Council and Commission, T‑260/97, EU:T:2005:283, paragraph 139, and of 26 November 2008, Agraz and Others v Commission, T‑285/03, not published, EU:T:2008:526, paragraph 50).
146 Consequently, the rate of compensatory interest to be borne by the compensation due to each applicant as reparation for the material damage which they each suffered corresponds to the annual rate of inflation recorded by Eurostat in the Member State where those companies are established. That compensatory interest will apply, up to a value not exceeding that claimed by the applicants, to the period between 27 January 2015 and the date of delivery of the present judgment in relation to each applicant.
147 In the second place, as regards the default interest, it follows from case-law that the obligation to pay such interest arises, in principle, on the date of the judgment establishing the obligation to make good the damage (see, to that effect, judgment of 26 June 1990, Sofrimport v Commission, C‑152/88, EU:C:1990:259, paragraph 32 and the case-law cited).
148 For the purposes of determining the default interest rate, it is appropriate to take into account Article 83(2)(b) and Article 111(4)(a) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1). Pursuant to those provisions, the interest rate for amounts receivable not repaid within the periods stipulated is to be the rate applied by the ECB to its principal refinancing operations, as published in the C series of the Official Journal of the European Union, in force on the first calendar day of the month in which the deadline falls, increased by three and a half percentage points.
149 In the present case, it must be held that the compensation referred to in paragraph 135 above, including the compensatory interest borne by the compensation due as reparation for the material damage suffered by each of the applicants, must be increased by default interest, starting from the date of delivery of the present judgment and continuing until full payment.
150 Moreover, the rate of that increase must not exceed that claimed by the applicants (see, to that effect, judgments of 19 May 1992, Mulder and Others v Council and Commission, C‑104/89 and C‑37/90, EU:C:1992:217, paragraph 35, and 8 May 2007, Citymo v Commission, T‑271/04, EU:T:2007:128, paragraph 184).
151 The rate of the default interest will therefore be that set by the ECB for its main refinancing operations, increased by two percentage points, in accordance with the applicants’ claim.
– Conclusion with respect to the amount of compensation and the interest
152 In the light of all of the foregoing, the present action must be partially upheld in so far as it seeks compensation for the material damage suffered by the applicants as a result of the breach of the obligation to adjudicate within a reasonable time in Cases T‑76/06 and T‑78/06.
153 The compensation due to ASPLA as reparation for the material damage which it suffered as a result of paying additional bank guarantee charges amounts to EUR 44 951.24, increased by compensatory interest, starting from 27 January 2015 and continuing until delivery of the present judgment, at the annual rate of inflation determined by Eurostat in the Member State where that company is established.
154 The compensation due to Armando Álvarez as reparation for the material damage which it suffered as a result of paying additional bank guarantee charges amounts to EUR 111 042.48, increased by compensatory interest, starting from 27 January 2015 and continuing until delivery of the present judgment, at the annual rate of inflation determined by Eurostat in the Member State where that company is established.
155 The amount of the compensation referred to in paragraphs 153 and 154 above, including the compensatory interest borne by the compensation due to each of the applicants as reparation for the material damage which they have each suffered will be increased by default interest in the manner defined in paragraphs 149 and 151 above.
156 The action is dismissed as to the remainder.
Costs
157 Under Article 134(3) of the Rules of Procedure, the parties are to bear their own costs where each party succeeds on some and fails on other heads. However, if it appears justified in the circumstances of the case, the General Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.
158 In the present case, the applicants have been successful in their heads of claim on the substance of the case. However, they have largely failed in their claim for compensation. For that reason, and taking into account all of the circumstances of the case, it is appropriate to decide that each party is to bear its own costs.
159 In accordance with Article 138(1) of the Rules of Procedure, Member States and institutions which have intervened in the proceedings are to bear their own costs. It is appropriate to decide that the Commission must bear its own costs.
On those grounds,
THE GENERAL COURT (Third Chamber, Extended Composition)
hereby:
1. Orders the European Union, represented by the Court of Justice of the European Union, to pay compensation of EUR 44 951.24 to Plásticos Españoles, SA (ASPLA) and compensation of EUR 111 042.48 to Armando Álvarez, SA for the material damage suffered by each of those companies as a result of the breach of the obligation to adjudicate within a reasonable time in the cases giving rise to the judgments of 16 November 2011, ASPLA v Commission (T‑76/06, not published, EU:T:2011:672), and of 16 November 2011, Álvarez v Commission (T‑78/06, not published, EU:T:2011:673). Each of those compensatory sums is to be reassessed by applying compensatory interest, starting from 27 January 2015 and continuing up to the date of delivery of the present judgment, at the annual rate of inflation recorded, for the period at issue, by Eurostat (the European Union’s statistical office) in the Member State where those companies are established;
2. Orders that each of the compensatory sums referred to in point (1) above is to bear default interest, starting from the date of delivery of the present judgment and continuing until full payment, at the rate set by the ECB for its principal refinancing operations, increased by two percentage points;
3. Dismisses the action as to the remainder;
4. Orders ASPLA and Armando Álvarez, on the one hand, and the European Union, represented by the Court of Justice of the European Union, on the other hand, to bear their own costs;
5. Orders the European Commission to bear its own costs.
Papasavvas | Labucka | Bieliūnas |
Delivered in open court in Luxembourg on 17 February 2017.
Table of contents
Background to the dispute
Procedure and forms of order sought
Law
Admissibility
The principal plea of inadmissibility, alleging that the application lacks clarity and precision
The plea of inadmissibility raised in the alternative, alleging that the claim for compensation for the material damage claimed is time-barred
Substance
The alleged breach of the obligation to adjudicate within a reasonable time in Cases T‑76/06 and T‑78/06
The material damage alleged and the purported causal link
– Preliminary observations
– Payment of interest on the amount of the fine
– Payment of the bank guarantee charges
– Assessment of the material damage suffered
– Interest
– Conclusion with respect to the amount of compensation and the interest
Costs