Case T‑479/14
Kendrion NV
v
European Union, represented by the Court of Justice of the European Union
(Non-contractual liability — Precision of the application — Admissibility — Article 47 of the Charter of Fundamental Rights — Reasonable time for adjudication — Material damage — Interest on the amount of the outstanding fine — Bank guarantee charges — Non-material damage — Causal link)
Summary — Judgment of the General Court (Third Chamber, Extended Composition), 1 February 2017
1. Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Application for compensation for damage allegedly caused by an EU institution
(Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court, Art. 44(1)(c))
2. Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — Cumulative conditions — One of the conditions not satisfied — Claim for compensation dismissed in its entirety
(Art. 340, second para., TFEU)
3. Non-contractual liability — Conditions — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Rule of law intended to confer rights on individuals — Concept — Infringement by the EU judicature of the duty to adjudicate within a reasonable time — Inclusion — Criteria for assessment
(Art. 340, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 47, second para.)
4. Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — Burden of proof
(Art. 340, second para., TFEU)
5. Competition — Administrative procedure — Commission decision finding an infringement and imposing a fine — Enforceability — Challenge to the decision before the EU judicature — Enforceability not called into question
(Arts 101 TFEU, 263 TFEU, 278 TFEU and 299, first para., TFEU)
6. Non-contractual liability — Conditions — Causal link — Interruption by reason of the blameworthy conduct of the applicant or others
(Art. 340, second para., TFEU)
7. Non-contractual liability — Conditions — Causal link — Concept — Bank guarantee charges arising from the choice of an undertaking not to pay the fine imposed by the Commission — Infringement by the EU judicature of the duty to adjudicate within a reasonable time on the occasion of the action by that undertaking — Existence of a causal link — Conditions
(Art. 340, second para., TFEU)
8. Actions for damages — Jurisdiction of the EU judicature — Limits — Prohibition on ruling ultra petita — Obligation to comply with the framework of the dispute defined by the parties — No possibility of the EU judicature deciding of its own motion to compensate for damage suffered during a period different from that indicated in the application
(Art. 268 TFEU; Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1))
9. Actions for damages — Subject-matter — Compensation for damage allegedly suffered by executives and employees of the applicant undertaking — Undertaking not authorised to take legal action on behalf of those executives and employees — Inadmissibility
(Art. 268 TFEU)
10. Non-contractual liability — Conditions — Actual and certain damage — Burden of proof
(Art. 340, second para., TFEU)
11. Non-contractual liability — Damage — Damage for which compensation available — Non-material damage caused by keeping the applicant in a state of prolonged uncertainty by reason of non-compliance with the duty to adjudicate within a reasonable time — Inclusion
(Art. 340, second para., TFEU)
12. Judicial proceedings — Duration of the proceedings before the General Court — Reasonable time — Dispute concerning whether there has been an infringement of the competition rules — Failure to act within a reasonable time — Consequences
(Charter of Fundamental Rights of the European Union, Art. 47, second para.)
13. Non-contractual liability — Damage — Compensation — Account taken of inflation — Default interest — Rules for calculation
(Art. 340, second para., TFEU; Commission Regulation No 1268/2012, Arts 83(2)(b), and 111(4)(a))
1. See the text of the decision.
(see para. 26)
2. See the text of the decision.
(see paras 35, 36)
3. For a procedure in competition matters before the General Court to exceed by 20 months the time reasonably necessary for adjudicating in such cases, which constitutes a sufficiently serious breach of a rule of EU law intended to confer rights on individuals, constitutes an infringement of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union.
During the period between the end of the written phase of the procedure, marked by the lodging of the rejoinder, and the opening of the oral phase of the procedure, the steps to be taken 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. Thus, the length of that period depends, in particular, on the complexity of the dispute, the conduct of the parties and supervening procedural matters.
Concerning, first, the complexity of the dispute, 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 often arise over extended periods and in various places. 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. 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. 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. Finally, the degree of factual, legal and procedural complexity in the case is no justification for longer proceedings in particular where, between the end of the written part of the procedure and the opening of the oral part of the procedure, the procedure has been neither interrupted nor delayed by the Court’s adoption of any measure in respect of its organisation.
Concerning the conduct of the parties and the supervening of procedural matters in the case at issue, the conduct of the parties and supervening procedural matters have had no impact on the amount of time that elapsed between the end of the written part of the procedure and the opening of the oral part of the procedure.
Consequently, 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 shows that there was a period of unjustified inactivity of 20 months in this case.
(see paras 48, 49, 51, 52, 54, 55, 59-61, 63)
4. See the text of the decision.
(see paras 64, 65)
5. In accordance with the first paragraph of Article 299 TFEU, a decision of the Commission concerning a procedure for applying Article 101 TFEU is enforceable, since it imposes a pecuniary obligation on the addressees. Moreover, the fact that an action for annulment has been brought against that decision, pursuant to Article 263 TFEU, does 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.
(see para. 71)
6. The condition concerning the causal link laid down by Article 340 TFEU requires that the conduct complained of be the determining cause of the damage. 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.
(see para. 85)
7. Damage consisting in bank guarantee charges incurred by a company penalised by a Commission decision later annulled by the General Court is not the direct consequence of the unlawfulness of that decision, since that damage results from 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. However, it is different where the procedure before the EU judicature exceeds a reasonable time for judgment, since, first, at the time the bank guarantee was provided, the breach of the obligation to adjudicate within a reasonable time was unforeseeable, the applicant being legitimately entitled to expect its action to be dealt with within a reasonable time. Secondly, the reasonable time for adjudicating was exceeded after the applicant’s initial decision to provide a bank guarantee.
It follows that there is a sufficiently strong causal link between, on the one hand, the breach by the EU judicature of the obligation to adjudicate within a reasonable time, and, on the other hand, the damage suffered by the applicant before the delivery of the judgment in question, consisting in the payment of bank guarantee charges during the period by which that reasonable time was exceeded. In that regard, payment of the bank guarantee charges after the delivery of the judgment bringing to an end the breach of the obligation to adjudicate within a reasonable time 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 applicant took, after that breach, not to pay the fine, not to request suspension of the operation of the contested decision and to appeal against the aforementioned judgment.
(see paras 86-88, 98, 99)
8. 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 and Article 44(1) of the Rules of Procedure of the General Court, 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. Thus, the Court cannot deviate from the applicant’s claim and decide of its own motion to make good damage suffered during a period chronologically different from that during which it claims to have suffered damage.
(see paras 103, 104)
9. A claim for compensation in respect of non-material damage suffered by the applicant’s executives and employees must be rejected as inadmissible where there is nothing in the documents before the Court to indicate that the applicant was authorised by its executives and employees to bring an action for damages on their behalf.
(see para. 118)
10. In an action for compensation, where an applicant has put forward nothing to show the existence of its non-material damage or to establish its extent, it falls to it, at the very least, to prove that the conduct of which it complains was, by reason of its gravity, such as to cause it damage of that kind.
(see para. 121)
11. The fact that an applicant has been put in a position of uncertainty, in particular as regards whether its action would be successful, is an inherent feature of any court proceedings. However, failure to adjudicate within a reasonable time is such as to put the applicant in a position of uncertainty greater than that normally engendered by court proceedings. That prolonged state of uncertainty inevitably has an impact on decision-making and the running of the business and therefore constitutes non-material damage.
(see paras 126, 128)
12. Having regard to the need to ensure that the competition rules of European Union law are complied with, the Court of Justice cannot allow an appellant to reopen the question of the validity or amount of a fine, on the sole ground that there was a failure to adjudicate within a reasonable time, where all of its pleas directed against the findings concerning the amount of that fine and the conduct that it penalises have been rejected.
It follows that the failure to adjudicate within a reasonable time when examining a legal action brought against a Commission decision imposing a fine on an undertaking for infringing the competition rules of European Union law cannot lead to the annulment, in whole or in part, of the fine imposed by that decision.
(see paras 131, 132)
13. The obligation to pay default interest arises, in principle, on the date of the judgment establishing the obligation to make good the damage. 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 Regulation No 1268/2012, on the rules of application of Regulation No 966/2012, on the financial rules applicable to the general budget of the Union. 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.
(see paras 137, 138)