ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber)
12 December 2007 (*)
(Enforcement of a judgment of the Court of First Instance – Repayment of the costs of bank guarantees provided in order to defer payment of a fine imposed by the Commission and subsequently annulled by the Court of First Instance – Action for annulment and damages – Non-contractual liability of the Community – No direct causal link between the allegedly unlawful conduct of the institution and the damage claimed)
In Case T‑113/04,
Atlantic Container Line AB, established in Göteborg (Sweden),
Transportación Marítima Mexicana SA de CV, established in Mexico (Mexico),
Hanjin Shipping Co. Ltd, established in Seoul (South Korea),
Hyundai Merchant Marine Co. Ltd, established in Seoul,
Mediterranean Shipping Co. SA, established in Geneva (Switzerland),
Neptune Orient Lines Ltd, established in Singapore (Singapore),
Orient Overseas Container Line (UK) Ltd, established in Suffolk (United Kingdom),
P & O Nedlloyd Container Line Ltd, established in London (United Kingdom),
Sea-Land Service, Inc., established in Jacksonville, Florida (United States),
represented initially by J. Pheasant, M. Levitt and K. Nicholson, and subsequently by M. Levitt and K. Nicholson, solicitors,
applicants,
v
Commission of the European Communities, represented by P. Oliver, acting as Agent,
defendant,
APPLICATION, first, for annulment of the Commission letter of 6 January 2004 refusing to repay the costs of the bank guarantees which the applicants entered into following the imposition of fines by Commission Decision 1999/243/EC of 16 September 1998 relating to a proceeding pursuant to Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC) (Case No IV/35.134 – Trans‑Atlantic Conference Agreement) (OJ 1999 L 95, p. 1), annulled by judgment of the Court of First Instance of 30 September 2003 in Joined Cases T‑191/98 and T‑212/98 to T‑214/98 Atlantic Container Line and Others v Commission [2003] ECR II‑3275, and, secondly, for damages seeking repayment of those costs,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of M. Jaeger, J. Azizi and E. Cremona, Judges,
Registrar: E. Coulon,
makes the following
Order
Factual background to the dispute
1 The applicants were all parties to a liner conference (an agreement on conditions for transport by sea) called the Trans-Atlantic Conference Agreement.
2 On 16 September 1998, the Commission adopted Decision 1999/243/EC relating to a proceeding pursuant to Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC) (Case No IV/35.134 – Trans-Atlantic Conference Agreement) (OJ 1999 L 95, p. 1) (‘the TACA decision’). Pursuant to Article 8 of the TACA decision, fines were imposed on each of the addressees of that decision, including the applicants, by reason of infringements of Articles 81 EC and 82 EC.
3 In accordance with Article 10 of the TACA decision, the fines provided for by Article 8 of that decision were to be paid within three months of the date of notification thereof. However, in the covering letter, the Commission granted each of those applicants who intended to contest the fines the option of deferring immediate payment, while their case was pending before the Court, on provision of a bank guarantee covering both the amount of the fine and interest.
4 That covering letter reads as follows:
‘[I]f you institute proceedings before the Court of First Instance or the Court of Justice … no enforcement measure will be taken as long as the case is pending before the Court, provided that the following two conditions are satisfied before the date of expiry of the period for payment:
– interest is paid on the sum due from that date, to be calculated on the basis of the … combined rate of 5.50%;
– a bank guarantee acceptable to the Commission and in accordance with the enclosed model, covering both the principal and the interest or increased amount of the debt, is provided by that date by registered letter to … the Commission ...’.
5 All the applicants chose to provide bank guarantees to the Commission in lieu of immediate payment of the fines imposed on them by the TACA decision.
6 In addition, all the addressees of the TACA decision, including the applicants, lodged applications before the Court of First Instance for the annulment of that decision.
7 By judgment of 30 September 2003 in Joined Cases T‑191/98 and T‑212/98 to T‑214/98 Atlantic Container Line and Others v Commission [2003] ECR II‑3275 (‘the judgment in TACA’), the Court annulled Article 8 of the TACA decision, which had imposed the fines, including those imposed on the applicants.
8 In response to the judgment in TACA, cited at paragraph 7 above, the Commission returned the bank guarantees to the banks which had issued them. However, it did not repay the applicants or any other addressees of the TACA decision the costs of providing those guarantees.
9 By letter of 12 December 2003, the applicants requested that the Commission pay them, pursuant to Article 233 EC and the second paragraph of Article 288 EC, the costs incurred by them in providing the bank guarantees at issue.
10 By letter received by the applicants on 9 January 2004, the Commission dismissed that request on the ground that such costs were recoverable neither under the Rules of Procedure of the Court of First Instance nor by virtue of Articles 233 EC and 288 EC (‘the contested decision’). In that regard the Commission submitted the following:
‘Undertakings have a choice between two alternatives: they may choose to pay the fine immediately or to lodge a bank guarantee. Consequently, the costs of lodging such a guarantee are not the direct result of the Commission’s action, but flow from the undertaking’s own decision to opt for the second alternative.’
Procedure and forms of order sought
11 By application lodged at the Registry of the Court of First Instance on 19 March 2004, the applicants brought the present action.
12 By order of 14 July 2006, the President of the Third Chamber of the Court of First Instance stayed proceedings, pursuant to Article 77(c) of the Rules of Procedure, pending the outcome of Case C‑282/05 P Holcim (Deutschland) v Commission.
13 Judgment in that case having been delivered on 19 April 2007, the proceedings resumed the same day. The parties submitted their observations on the relevance of the judgment for the resolution of this dispute within the prescribed time limits.
14 The applicants claim that the Court should:
– order the Commission to pay the applicants the sums set out in Annex A.1 to their application;
– order the Commission to pay the applicants interest at the capital refinancing operations rate of the European Central Bank (ECB) plus 2%, or at such other rate as the Court may consider appropriate in view of all the circumstances of the case, payable in relation to the period from the date on which each individual applicant’s respective liability for costs in respect of its bank guarantee ceased until the date of the Court’s judgment in this case;
– order the Commission to pay to the applicants interest at such rate as the Court may consider appropriate in view of all the circumstances of the case, on all amounts sought hereinabove which the Court may order to be paid, from the date of the Court’s judgment in this case until payment thereof;
– annul the contested decision;
– order the Commission to pay the costs.
15 The Commission contends that the Court should:
– dismiss the action as being partly inadmissible and, in any event, unfounded;
– order the applicants to pay the costs.
Law
16 Under Article 111 of the Rules of Procedure, where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, by reasoned order and without taking further steps in the proceedings, give a decision on the action. In the present case, the Court considers that it has sufficient information from the documents in the file and has decided to take no further steps in the proceedings.
17 It is necessary to state, first, that the claims submitted by the applicants fall into two different categories of action, one seeking an order against the Commission ordering it to pay a sum of money equal to the costs which the applicants incurred in providing their bank guarantees and the other seeking annulment of the contested decision. The applicants state that the two claims are independent in that the success of one does not depend on the success of the other.
18 Next, it should be noted that the different heads of claim submitted in the application are based on Articles 220 EC, 230 EC, 231 EC, 233 EC and 288 EC. Thus, the applicants seek, first, ‘an order, pursuant to Articles 220 EC and/or 288 EC, requiring the Commission to take the “necessary measures” required by Article 233 EC to comply with the judgment in TACA … , by paying each … the amounts … being the costs incurred … in the provision of [their] bank guarantee, together with the appropriate interest’ (‘the action for payment’). Second, they seek, ‘[p]ursuant to Articles 230 EC, 231 EC and 233 EC’, ‘an order for the annulment of the [contested] decision’.
19 In the circumstances of this case, it is appropriate to consider the action for payment before considering the action for annulment.
The action for payment
20 The applicants submit that the action for payment has alternative bases, namely, the inherent jurisdiction of the Court pursuant to Article 220 EC and Article 288 EC.
The action for payment based on Article 220 EC
21 The applicants submit that Article 220 EC confers on the Community judicature a general power to review the legality of the conduct of the Community institutions and to order them to comply with the EC Treaty. In the present case, the Commission failed to take the necessary measures required by Article 233 EC to comply with the judgment in TACA, cited at paragraph 7 above, by refusing to pay to each of the applicants a sum equal to the costs of providing the bank guarantees and, by so doing, failed to restore in full the status quo ante.
22 In that regard, it should be noted that the powers of the Community judicature are limited to those specifically conferred upon it (Case C‑376/98 Germany v Parliament and Council [2000] ECR I‑8419, paragraph 83, and the order in Case T‑338/02 Segi and Others v Council [2004] ECR II‑1647, paragraph 38). Thus, suffice it to note, as the Commission rightly does, that the first paragraph of Article 220 EC – pursuant to which the Court of Justice and the Court of First Instance are to ensure, each within their respective jurisdictions, that the law is observed in the interpretation and application of the EC Treaty – does not create an autonomous remedy, outside the categories exhaustively listed in the Treaty, for claims for payment of the kind brought in the present case (see, concerning Article 233 EC, Case T‑28/03 Holcim (Deutschland) v Commission [2005] ECR II‑1357, ‘Holcim’, paragraphs 31 and 32 and the case‑law cited, confirmed on appeal by the judgment in Case C‑282/05 P Holcim (Deutschland) v Commission [2007] ECR I‑0000.
23 In Case 44/81 Germany v Commission [1982] ECR 1855, paragraphs 6 and 7, the Court held that an action for payment of amounts due pursuant to Community legislation were extraneous to the system of remedies established by the Treaty (see, to that effect, also, Joined Cases 261/78 and 262/78 Interquell Stärke-Chemie v Council and Commission [1979] ECR 3045, paragraph 6). By so doing, the Court rejected the applicants’ argument based on the effective protection of their rights, guaranteed by Article 164 of the EEC Treaty (now Article 220 EC), stating that such effective protection was sufficiently guaranteed by the opportunity of bringing an action for annulment against the decision to refuse the payment or an action for failure to act, on the basis of Articles 230 EC or 232 EC respectively (see, also, concerning Article 233 EC, paragraph 33 of Holcim, cited at paragraph 22 above). It follows that the general jurisdiction under Articles 220 EC and 233 EC cannot replace the various legal remedies for which the EC Treaty provides and serve as an independent legal basis for an action brought before the Community judicature.
24 That conclusion is not contradicted by the order in Case C‑2/88 Imm. Zwartveld and Others [1990] ECR I‑3365, paragraphs 23 and 24), upon which the applicants rely. Far from having the effect of increasing the number of legal remedies established by the Treaty, that order limits itself to assuring, in the specific field of judicial assistance, review of compliance with the duty to cooperate in good faith incumbent on the Commission, which is unable to release itself from that obligation by relying on the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965 (JO 1967 152, p. 13), when a case is brought before it by a national judicial authority.
25 Consequently, the action for payment, in so far as it is based on Article 220 EC, is extraneous to the system of remedies established by the Treaty and, accordingly, must be rejected as manifestly inadmissible.
The action for payment based on the second paragraph of Article 288 EC
– Arguments of the parties
26 According to the applicants, the Commission committed a sufficiently serious breach of Community law by imposing on them, by the TACA decision, fines which the judgment in TACA, cited at paragraph 7 above, found to be unlawful. As a direct result of the Commission’s unlawful decision the applicants suffered considerable pecuniary loss in the form of the costs they incurred in providing bank guarantees and maintaining them in force until the date of the cancellation of their debt following the delivery of the judgment in TACA. It is possible to return the applicants to the legal position they were in before the judgment in TACA only if those expenses are repaid to them.
27 In so far as the Commission denies the existence of a causal link between its own act and the loss suffered by the applicants, arguing that the applicants had a choice as to whether or not to provide the bank guarantees, the applicants state that the Commission obliged them either to pay the fines or to provide the guarantees. Consequently, the provision of the bank guarantees in lieu of immediate payment of fines was a direct consequence of the obligation to pay the fines unlawfully imposed upon them by the Commission in the TACA decision
28 The Commission is of the opinion that the action for damages is both inadmissible, because time‑barred pursuant to Article 46 of the Statute of the Court of Justice, and unfounded. First, the unlawful act relied on being the TACA decision of 16 September 1998, the action brought on 19 March 2004 is time‑barred. Secondly, in view of the legal and factual complexity and the novel nature of the questions with which the Commission was faced, the unlawfulness affecting the TACA decision does not constitute a sufficiently serious breach of Community law. Moreover, the requisite causal link between that breach and the alleged loss is lacking. The Commission merely granted the applicants an option: namely to provide a bank guarantee instead of paying the fine immediately. The applicants knowingly made a free choice to exercise the option thus offered, breaking the causal link between the unlawful act and the loss alleged.
– Findings of the Court
29 It is settled case-law that in order for the Community to incur non‑contractual liability under the second paragraph of Article 288 EC for the unlawful conduct of its institutions a number of conditions must be satisfied: the institution’s conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage pleaded (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16, and Case T‑383/00 Beamglow v Parliament and Others [2005] ECR II‑5459, paragraph 95).
30 If any one of the three conditions for Community non‑contractual liability is not satisfied, the claims for damages must be dismissed in their entirety without any need arising to consider whether the other conditions are satisfied (Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraph 81, and Case T‑170/00 Förde-Reederei v Council and Commission [2002] ECR II‑515, paragraph 37). In addition, the Community judicature is not required to examine those conditions in a particular order (Case C‑257/98 P Lucaccioni v Commission [1999] ECR I‑5251, paragraphs 13 to 15).
31 As regards more particularly the causal link required between the conduct complained of and the alleged harm, it is settled case‑law that that damage must be a sufficiently direct consequence of the act, constituting the immediate cause of the damage suffered, whilst there is no obligation to make good every harmful consequence, even a remote one, of an unlawful situation (Joined Cases 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79 Dumortier frères and Others v Council [1979] ECR 3091, paragraph 21, and Case T‑279/03 Galileo International Technology and Others v Commission [2006] ECR II‑1291, paragraph 130 and the case‑law cited, confirmed on appeal by order in Case C‑325/06 P Galileo International Technology and Others v Commission [2007] ECR I‑0000).
32 It has also been held that, during the examination of the causal link which must exist between the conduct of the Community institution which is complained of and the harm alleged by the person adversely affected, it is necessary to verify whether, at the risk of having to bear the damage himself, he showed reasonable diligence in avoiding or limiting the extent of the damage which he claims to have suffered (see, to that effect, Case 169/73 Compagnie Continentale France v Council [1975] ECR 117, paragraphs 22 and 23; Joined Cases C‑104/89 and C‑37/90 Mulder and Others v Council and Commission [1992] ECR I‑3061, paragraph 33; and Case T‑178/98 Fresh Marine v Commission [2000] ECR II‑3331, paragraph 121).
33 Consequently, even if the conduct alleged against the Community institution contributed to bringing about the harm alleged, that causal link may be broken by negligence on the part of the person adversely affected, where that negligence proves to be the immediate cause of the damage.
34 Finally, the burden of proving the causal link between the conduct complained of and the harm alleged falls on the applicant (see Case T‑149/96 Coldiretti and Others v Council and Commission [1998] ECR II‑3841, point 101 and the case‑law cited).
35 As regards the present case, it should be pointed out that, under Article 8 of the TACA decision, the applicants had fines imposed on them which, under the first paragraph of Article 10 of that decision, were to be paid within three months of the date of notification of the decision. Moreover, under the second paragraph of that article, the fines were automatically to attract interest upon expiry of that period.
36 In accordance with the first paragraph of Article 192 of the EC Treaty (now Article 256 EC), the TACA decision constitutes, in that regard, an order for enforcement, since it includes a financial obligation which falls on persons other than Member States, notwithstanding the introduction of an action for annulment against that decision on the basis of Article 173 of the EC Treaty (now, as amended, Article 230 EC). Under the first sentence of Article 185 of the EC Treaty (now Article 242 EC), an action brought before the Community judicature does not have suspensory effect (see Holcim, cited at paragraph 22 above, paragraph 121 and the case‑law cited).
37 It is not contested that the applicants, in derogation from those provisions, have not paid the fines which were imposed on them by Article 8 of the TACA decision, but, instead, provided bank guarantees covering the payment of the fines until delivery of the judgment in TACA, cited at paragraph 7 above.
38 In those circumstances, as the Court of First Instance held in Holcim, cited at paragraph 22 above (paragraph 123 et seq.), the applicants cannot validly maintain that the bank guarantee costs which they incurred in the present case are the direct consequence of the unlawfulness of the TACA decision. The damage which they allege in that regard is, on the contrary, the consequence of their own decisions not to comply with the obligation to pay the fines, in derogation from the rules laid down in the first sentence of Article 242 EC and the first paragraph of Article 256 EC, within the period prescribed by the TACA decision, but rather to provide bank guarantees in accordance with the option offered by the Commission. The applicants were quite unfettered in the making of that decision (see, to that effect, Case T‑275/94 CB v Commission [1995] ECR II‑2169, paragraphs 54 and 55), which was not therefore obligatory under the TACA decision. If the applicants had chosen to pay the fines immediately, there would have been no need for them to pay the costs of providing the bank guarantees (see, with regard to default interest, CB v Commission, paragraph 83).
39 By submitting that the requisite causal link exists in the present case on the sole basis that, if the Commission had not adopted the TACA decision in their regard, they need not have provided the bank guarantees, the applicants in fact put forward a definition of causal link different from that which prevails in Community law. Such an argument is based on a definition to the effect that, for such a link to exist, it is enough if the unlawful conduct constituted a necessary condition (a sine qua non) for the damage, in the sense that it would not have occurred without such conduct.
40 However, such a broad definition of the causal link is not supported by the Community case‑law on the second paragraph of Article 288 EC. As noted at paragraph 31 above, that provision limits Community liability to damage flowing directly, or sufficiently directly, from the conduct of the institution concerned which is complained of, which, in particular, precludes that liability from covering damage which arises only as a remote consequence of that conduct.
41 The Court notes, moreover, that the applicants have not alleged, still less established, that they were compelled to provide the bank guarantees because the financial situation in which they found themselves did not allow them to contemplate paying the fines imposed by the TACA decision immediately. Nor did they bring applications for interim measures, relying on the financial impossibility of complying with Article 8 and the first paragraph of Article 10 of that decision. It follows that their preference for providing a bank guarantee rather than paying the fines immediately was the result of a free economic and commercial choice which they made on the basis of their financial interests, whilst awaiting the conclusion of the action seeking annulment of the TACA decision.
42 The applicants also rely on the judgment in Case T‑171/99 Corus UK v Commission [2001] ECR II‑2967, paragraph 54 and following), in support of the argument that the obligation imposed on the Commission, after their fines were annulled, to restore them to exactly the same legal position as they were in before the fines were imposed necessarily implies that the Commission should repay them the costs borne by them in providing and maintaining bank guarantees until full settlement of their debts.
43 In that regard, it should be noted that, in the judgment in Corus UK v Commission, cited at paragraph 42 above, the Court of First Instance confined itself to finding that, in the case of a judgment annulling or reducing the fine imposed on an undertaking, the Commission is under an obligation to repay not only the principal amount of the fine which has been unduly paid, but also the default interest on that amount. However, those considerations are not applicable where the undertaking concerned has provided a bank guarantee, the two situations being substantially different (see, to that effect, Holcim, cited at paragraph 22 above, paragraph 127).
44 Where the undertaking concerned proceeds to the immediate payment of the fine imposed, it does no more than comply with the operative part of a decision which is enforceable in accordance with the normal system laid down by the Treaty (see paragraphs 36 and 38 above and Holcim, cited at paragraph 22 above, paragraph 126), whereas replacing that payment with a stay of payment and a bank guarantee constitutes a derogation from that normal system. Whilst it is true that the Commission made the option of that derogation available, where a decision imposing a fine is annulled, the fact remains that the consequences will be different depending upon whether the undertaking has chosen immediate payment of the fine or a stay of payment coupled with the provision of a bank guarantee.
45 With regard to those consequences, of which the applicants as diligent and experienced traders must have been aware, it is clear that, where a stay of payment has been granted, the Commission is not required to repay a fine unduly paid, since, by definition, that fine was not paid. The undertaking concerned has therefore suffered no loss of value, since the sum corresponding to the amount of the fine which it would otherwise have been required to pay the Commission immediately, in light of the enforceable nature of the contested decision and the absence of suspensory effect of actions brought before the Court of First Instance (see paragraphs 36 and 38 above), was not paid out. The only financial damage that may have been sustained by the undertaking concerned is the consequence of its own decision to provide a bank guarantee in order to take advantage of the stay of payment (Holcim, cited at paragraph 22 above, paragraph 129).
46 As regards the cost of the bank guarantee, it was paid not to the Community but to a third party, namely the bank chosen by the undertaking concerned. If the Commission were to assume responsibility for those charges, it would be penalised, since it would be required to repay to the undertaking sums which it had never received (Holcim, cited at paragraph 22 above, paragraph 130).
47 Conversely, if the undertaking concerned chooses to pay the fine immediately, whilst bringing an action seeking annulment of the same, it is entitled to expect that the Commission, if the fine imposed is annulled, will repay it not only the principal amount of the fine unduly paid, but also the default interest on that amount (Corus UK v Commission, cited at paragraph 42 above, paragraph 54 et seq.; Case T‑48/00 Corus UK v Commission [2004] ECR II‑2325, paragraph 223; and the order in Case T‑86/03 Holcim (France) v Commission [2005] ECR II‑1539, paragraph 30). Moreover, it is in the Commission’s own interests, in the light of the possibility of annulment, to place the amount of the fine paid by the undertaking concerned into an interest‑bearing bank account, so as to be, if necessary, in a position to repay the undertaking concerned in full, without incurring additional costs.
48 Thus, where the undertaking concerned has sufficient capital available to enable it to pay the fine, the damage consisting of being unable to enjoy that capital will normally be covered by the payment, by the Commission, of default interest on the amount of the fine. The provision of a bank guarantee is, therefore, necessarily and in any event, not such as to prevent greater damage than that resulting from the immediate payment of the fine.
49 In any event, the applicants have not, in this case, adduced any evidence at all to establish that paying their fines immediately, instead of accepting the benefit of the stay of payment, would have resulted in losses for them which would not have been covered by the repayment, by the Commission, of the principal amount of the fine unduly paid plus default interest on that amount. The applicants have, in particular, failed to establish or even to allege that they were obliged, because of the weak financial situation in which they found themselves in respect of their own capital, to take out loans to pay the fines at higher interest rates than the default interest which would have been paid by the Commission.
50 In those circumstances, the general and unsubstantiated reference by the applicants to point 112 et seq. of Advocate General Mengozzi’s Opinion in Holcim (Deutschland) v Commission, cited at paragraph 22 above (not yet published, see paragraphs 12 and 13 above) – which envisages a situation in which the Community is unjustly enriched by a reduction in the amount of claimable damage suffered by the undertaking which is unlawfully penalised and the consequent reduction of the indebtedness of the Community in that respect, when the provision of a bank guarantee would lead to lower costs than those resulting from the immediate payment of the fine unlawfully imposed – is devoid of relevance.
51 In view of the foregoing, the causal link which exists between the conduct alleged against the Commission, namely, the imposition by the TACA decision of unlawful fines and the harm alleged, namely payment of the costs of the bank guarantee which the Commission required as a condition for staying payment of those fines, cannot, in this case, be considered sufficiently direct.
52 Therefore, the claim for damages based on the second paragraph of Article 288 EC must be rejected as manifestly unfounded in law without any need to examine whether the alleged defects in the TACA decision constitute a sufficiently serious breach of Community law or whether the alleged damage actually occurred or any need to determine whether that claim might be time‑barred, pursuant to Article 46 of the Statute of the Court of Justice (see, on this last point, Holcim, cited at paragraph 22 above, paragraphs 59 to 74).
53 Consequently, the action for payment must be dismissed in its entirety.
The action for annulment based on the fourth paragraph of Article 230 EC
54 The applicants submit that the contested decision must be annulled inasmuch as the Commission failed to comply with the requirement, to which it is subject pursuant to Article 233 EC, to take all ‘necessary measures’ to remedy the unlawfulness in the TACA decision found in the judgment in TACA, cited at paragraph 7 above. An annulling judgment, such as that cited above, delivered pursuant to Articles 230 EC and 231 EC, has the effect of rendering void the contested act (in this case, the TACA decision). Article 233 EC then requires the author of the act which has been declared void to restore the original position, inter alia by paying damages. The retroactive effect of annulment implies the reconstitution of the situation prevailing before the adoption of the annulled act, by placing the undertaking concerned in the position in which it would have been, before the annulled fines were imposed.
55 In that regard, the Court points out that, although the claim for annulment put forward by the applicants pursues, ultimately, the same end as the action for payment which has just been dismissed, namely, repayment of the bank guarantee costs which they incurred, it is settled case‑law that those two categories of action constitute independent forms of action (see Fresh Marine v Commission, cited at paragraph 32 above, paragraph 45 and the case‑law cited). The head of claim seeking annulment of the contested decision, which clearly states the Commission’s refusal to act in accordance with the applicants’ request by letter of 12 December 2003 (see paragraph 9 above) must, therefore, be declared admissible.
56 As to substance, this is a question of examining whether the Commission, by its refusal to repay the bank guarantee costs incurred by the applicants, breached the obligations imposed on it by Article 233 EC in enforcing the judgment in TACA, cited at paragraph 7 above.
57 As regards the obligations flowing from Article 233 EC, it is settled case‑law that the institution concerned is required to take necessary measures to reverse the effects of the unlawfulness found in the judgment of annulment and, in the case of a measure that has already been executed, this may take the form of restoring the applicant to the position in which he found himself before that measure (see Case T‑271/99 Corus UK v Commission, cited at paragraph 42 above, paragraph 50 and the case-law cited), since the institution concerned is required to take such decisions as will provide due compensation for the damage which the applicant has suffered as a result of the annulled decision (see, to that effect, Case 76/79 Könecke v Commission [1980] ECR 665, paragraph 15, Case 144/82 Detti v Court of Justice [1983] ECR 2421, paragraph 33; and Case T‑84/91 Meskens v Parliament [1992] ECR II‑2335, paragraph 80).
58 As regards more particularly the enforcement of a judgment annulling a fine, such as the judgment in TACA, cited at paragraph 7 above, those measures include, in particular, the Commission’s obligation to repay the amount of the fine paid by the undertaking in question, in so far as that payment is to be considered a sum unduly paid following the decision to annul. That obligation applies not only to the principal amount of the fine overpaid, but also to default interest on that amount (see the order in Holcim (France) v Commission, cited at paragraph 47 above, paragraph 30 and the case-law cited).
59 The payment of default interest on the amount unduly paid would seem to be an essential component of the Commission’s obligation to restore the applicants to their original position following a judgment of annulment, since full repayment of the fine unduly paid cannot leave out of account the fact that the undertaking concerned was unlawfully deprived of the enjoyment of its capital between the date on which it paid the fine and that on which it was repaid (see, to that effect, Case T‑271/99 Corus UK v Commission, cited at paragraph 42 above, paragraph 54).
60 By contrast, the provision of the bank guarantees at issue results neither from the TACA decision nor from the judgment in TACA, cited at paragraph 7 above. The possible repayment of the costs incurred on that occasion cannot therefore be connected to the repayment of the sums paid in respect of the annulled fines, nor can it be considered, by analogy with payment of default interest on that amount, to be an indispensable part of the obligation to restore the applicants’ position.
61 The costs incurred by the applicants in respect of the bank guarantees at issue must, therefore, be considered to be additional damage.
62 As the Court of Justice found in its judgment in Case C‑412/92 P Parliament v Meskens [1994] ECR I‑3757, paragraph 24), Article 233 EC requires the administration to make good further damage which may be caused by the unlawful act annulled only if the conditions laid down in the second paragraph of Article 288 EC are satisfied.
63 However, it has been held (see paragraphs 51 and 52 above) that the preconditions for bringing an action for damages pursuant to that provision are manifestly not satisfied in the circumstances of this case. Consequently, the contested decision, inasmuch as it refused to compensate for further damage, was not adopted in breach of Article 233 EC.
64 In any event, it is clear that, in the circumstances of this case, the principle of equity does not require the Commission to repay the bank guarantee costs incurred by the applicants.
65 As already stated (see paragraph 49 above), the applicants have failed to establish that the immediate payment of their fines in lieu of providing the bank guarantees at issue required in order to obtain the stay of payment would have resulted in losses for them which would not have been covered by the repayment, by the Commission, of the principal amount of the fine which was unduly paid and default interest on that amount. In those circumstances, it would be inequitable for the Commission to assume responsibility for the costs of the bank guarantees, since, first, those costs were paid not to the Community, but to banks, and the Commission never had the benefit of the amounts at issue (see paragraph 46 above) and, secondly, the applicants have not sought to establish that their decision to provide the bank guarantees was necessary.
66 Accordingly, the claim for annulment must also be rejected as manifestly unfounded in law.
67 In view of all the foregoing, the action must be dismissed in part as manifestly inadmissible and in part as manifestly unfounded in law.
Costs
68 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Commission has applied for costs against the appellants and the latter have been unsuccessful, they must be ordered to pay the costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
hereby orders:
1. The action is dismissed.
2. The applicants are ordered to pay the costs.
Luxembourg, 12 December 2007