Provisional text
OPINION OF ADVOCATE GENERAL
COLLINS
delivered on 23 November 2023(1)
Case C‑221/22 P
European Commission
v
Deutsche Telekom AG
(Appeal – Competition – Abuse of a dominant position – Judgment annulling a decision in part and reducing the amount of the fine – Obligation on the Commission to pay interest – Default interest – Articles 266 and 340 TFEU – Article 90 of Delegated Regulation (EU) No 1268/2012)
I. Introduction
1. An EU institution adopts a decision on foot of which an undertaking pays a sum of money to it on a provisional basis. The Court of Justice subsequently declares part, or all, of that decision, void. The undertaking seeks a refund of that sum from the EU institution, together with what it describes as ‘default interest’ calculated on the sum declared to have been paid unduly, to run from the date upon which it paid that sum until the delivery of the Court’s judgment. Does EU law require the EU institution to accede to that demand? That is, in a nutshell, the question the Commission asks the Court to determine in this appeal.
2. The answer to that question engages the first paragraph of Article 266 TFEU. Do the necessary measures that an EU institution may be required to take in order to comply with a judgment of the Court include payment of the ‘default interest’ sought in this action? That assessment is to be made in the context of case-law that uses the term ‘default interest’ to describe distinct legal concepts that serve a variety of objectives. The discussion at times brings to mind the famous exchange between Humpty Dumpty and Alice in Lewis Carroll’s Through the Looking-Glass. (2)
II. Facts and procedure
A. Background to the appeal
3. On 15 October 2014, the European Commission adopted Decision C(2014) 7465 final relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39523 – Slovak Telekom) (‘the 2014 decision’). The 2014 decision concluded that Deutsche Telekom AG and Slovak Telekom a.s. had breached Article 102 TFEU and Article 54 of the Agreement on the European Economic Area (EEA). It imposed a fine of EUR 38 838 000 on Deutsche Telekom and Slovak Telekom jointly and severally, and a separate fine of EUR 31 070 000 on Deutsche Telekom.
4. On 24 December 2014, Deutsche Telekom brought an action to annul the 2014 decision.
5. On 16 January 2015, Deutsche Telekom provisionally paid EUR 31 070 000 to the Commission.
6. By judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930; ‘the 2018 judgment’), the General Court reduced by EUR 12 039 019 the amount of the fine for which Deutsche Telekom had been held to be solely liable. On 19 February 2019, the Commission refunded that sum to Deutsche Telekom.
7. On 21 February 2019, Deutsche Telekom brought an appeal against the 2018 judgment.
8. On 12 March 2019, Deutsche Telekom requested that the Commission pay default interest on EUR 12 039 019, to run from 16 January 2015 until 19 February 2019. In support of its request, Deutsche Telekom relied on the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81).
9. By letter of 28 June 2019 (‘the contested decision’), the Commission refused to pay default interest to Deutsche Telekom, stating that the 2018 judgment required reimbursement of the nominal value of the reduction of the fine. Applying Article 90 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 (‘Delegated Regulation No 1268/2012’), (3) the Commission repaid the nominal value without interest since that amount had yielded a negative return during the relevant period. The Commission added that it had lodged an appeal against the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81).
10. The Court dismissed the Commission’s appeal by judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39; ‘the judgment in Printeos’).
11. By judgment of 25 March 2021, Deutsche Telekom v Commission (C‑152/19 P, EU:C:2021:238), the Court dismissed Deutsche Telekom’s appeal against the 2018 judgment, by virtue of which the reduction of the fine imposed became final.
B. The judgment under appeal
12. On 9 September 2019, Deutsche Telekom lodged an action before the General Court seeking to annul the contested decision. It also sought an order requiring the Commission to compensate it for the loss sustained due to the unavailability of the sum it had unduly paid. In the alternative, it sought an order that the General Court require the Commission to pay default interest on the amount unduly paid, from the date of the provisional payment of the fine until the date of its reimbursement. That default interest was to be calculated on the basis of the rate applied by the European Central Bank (ECB) to its principal refinancing operations, increased by three and a half percentage points or, alternatively, by reference to a rate that the General Court considered appropriate. It also sought an order that the General Court require the Commission to pay default interest on the amount owed from the delivery of the judgment to be given in the proceedings before that court until the Commission repaid that amount.
13. In its judgment of 19 January 2022, Deutsche Telekom v Commission (T‑610/19, EU:T:2022:15; ‘the judgment under appeal’), the General Court rejected the head of claim seeking compensation for the loss sustained due to the unavailability of the sum it had unduly paid. Deutsche Telekom had not shown that it had suffered loss of profit due to any inability to invest that sum in its business or that its unavailability had caused it to abandon any specific projects.
14. As for the head of claim for compensation due to the Commission’s refusal to pay default interest on the amount unduly paid from the date it had been paid until its reimbursement, the General Court concluded that the 2014 decision constituted a sufficiently serious breach of the first paragraph of Article 266 TFEU, as a consequence of which Deutsche Telekom had suffered loss. The General Court held that the first paragraph of Article 266 TFEU is a rule of law intended to confer rights on individuals. The annulment of a measure by the EU judicature operates ex tunc, thus eliminating it with retroactive effect. Where a sum of money has been unduly paid to an EU institution, a right to the repayment of that sum, together with default interest, arises. The purpose of default interest is to compensate at a standard rate for the loss of enjoyment of money owed and to encourage a debtor to comply with a judgment as soon as possible. Payment of default interest is thus an essential component of the Commission’s obligation under the first paragraph of Article 266 TFEU to restore the applicant to its original position following the annulment of a fine. The obligation to pay default interest provides compensation at a standard rate for an objective delay which arises from, first, the duration of legal proceedings; second, the entitlement to restitution of an undertaking which has provisionally paid a fine that is subsequently cancelled or reduced; and, third, the ex tunc effect of orders of the EU Courts. The General Court accepted that the obligation to pay ‘default interest’ cannot encourage the Commission, prior to the delivery of a judgment annulling a fine in whole or in part, to repay the amount that it had unduly received.
15. The General Court rejected the Commission’s argument that, by virtue of Article 90(4) of Delegated Regulation No 1268/2012, it was obliged to repay only the ‘interest yielded’ by the amount that it had received unduly. (4) The obligation to pay ‘default interest’ exists notwithstanding payment of any sums yielded by the operation of Article 90(4) of Delegated Regulation No 1268/2012. The General Court accordingly held that there was no need to rule on the plea Deutsche Telekom had raised as to the illegality of Article 90(4) of Delegated Regulation No 1268/2012.
16. The General Court concluded that the Commission’s obligation to pay default interest calculated from the date of provisional payment arose from the obligation, under the first paragraph of Article 266 TFEU, to comply with the 2018 judgment. The maximum amount of a claim for restitution as a consequence of the provisional payment of a fine was certain or could be determined at the date of that payment by reference to objective factors. The interest payable is default interest and no question of compensatory interest arose. It held that the refusal to pay default interest met the conditions laid down in the second paragraph of Article 266 TFEU, read in conjunction with the second paragraph of Article 340 thereof, for invoking the non-contractual liability of the European Union.
17. To determine the rate of default interest, the General Court applied, by analogy, Article 83 of Delegated Regulation No 1268/2012, entitled ‘Default interest’. The Commission was obliged to pay the rate applied by the ECB to its principal refinancing obligations, increased by three and a half percentage points, namely 3.55%, in the period between 16 January 2015 and 19 February 2019, which amounted to EUR 1 750 522.83.
18. Lastly, the General Court added that, from the delivery of the judgment under appeal until payment in full by the Commission, the amount owed was to be increased by default interest, calculated at the rate applied by the ECB to its principal refinancing operations, increased by three and a half percentage points.
C. The appeal
19. The Commission brought the present appeal on 28 March 2022. It requested its assignment to the Grand Chamber to allow the Court to re-examine the approach that it had taken in the judgment in Printeos. (5)
20. The Commission raises two grounds of appeal. By its first ground it argues that the judgment under appeal erred in law where it held that Article 266 TFEU imposes an unconditional obligation on the Commission to pay default interest for the period from the date of the provisional payment of the fine and the date of the reimbursement of any sum unduly paid. By its second ground it contends that the judgment under appeal erred in law by holding, by analogy with Article 83(2)(b) of Delegated Regulation No 1268/2012, that the Commission was obliged to pay default interest at the rate applied by the ECB to its principal refinancing operations, increased by three and a half percentage points.
21. Deutsche Telekom submits that the Court should dismiss the appeal as inadmissible and, in any event, as unfounded.
22. At the hearing on 12 July 2023, the parties presented oral argument and answered questions put by the Court.
III. Assessment
A. Admissibility
23. According to Deutsche Telekom, the entire appeal should be rejected as inadmissible since it is in reality directed against the judgment in Printeos, which has become final. The General Court faithfully applied that case-law and therefore could not have committed any error of law. In its view, the line of argument that the Commission relies upon in order to criticise the judgment in Printeos is also inadmissible since it had not been raised before the General Court.
24. Deutsche Telekom further submits that the first ground of appeal is inadmissible because the Commission failed to identify a single passage of the judgment under appeal that held that the Commission’s obligation to pay default interest is in the nature of a penalty. The award of default interest is not a penalty but is rather compensation, at a standard rate, for depriving an undertaking of the use of its funds. Deutsche Telekom also submits that the first part of the first ground of appeal and the second ground of appeal merely repeat the arguments put forward before the General Court and are therefore inadmissible. The second, third, fourth, fifth and sixth parts of the first ground of appeal are inadmissible because the present appeal introduces those arguments in these proceedings for the first time.
25. The Commission responds that the appeal is directed against the judgment under appeal, not the judgment in Printeos. A number of the considerations set out in the judgment under appeal do not appear in the judgment in Printeos. As far as concerns the first ground of appeal, the Commission disputes the finding that it is obliged to pay default interest, as the judgment under appeal determined. The Commission further asserts that even if the first part of the first ground of appeal and the second ground of appeal repeat arguments it raised before the General Court, it is entitled to do so in the context of a challenge to the General Court’s interpretation and application of EU law. The second, third, fourth, fifth and sixth parts of the first ground of appeal develop arguments put forward before the General Court and contest various findings made in the judgment under appeal.
26. Pursuant to the first paragraph of Article 170 of the Rules of Procedure of the Court of Justice, an appeal may not change the subject matter of the proceedings before the General Court. A challenge to the General Court’s interpretation or application of EU law on appeal may result in a re-examination of points of law decided at first instance. (6) If an appellant could not base an appeal on pleas and arguments that it had relied on at first instance, that appeal would be deprived of part of its purpose. (7) To prevent an appellant from so doing also undermines the well-established rule that the Court’s jurisdiction on appeal is confined to findings of law made in respect of the pleas argued at first instance. (8) The Court has repeatedly held that an appellant is entitled to lodge an appeal on grounds that arise from the judgment under appeal and to seek to criticise its correctness as a matter of law. (9) The interpretation and the application of the case-law of the EU Courts, including the judgment in Printeos, in the judgment under appeal, raises points of law that are capable of being so challenged. I therefore propose that the Court reject Deutsche Telekom’s objections to the admissibility of the entire appeal.
27. The first ground of appeal contends that, by its failure to consider the punitive nature of default interest, the General Court erred in law by directing the Commission to pay that interest. The Commission’s allegation is not that the General Court had made a positive error in its assessment, but rather that its legal analysis failed to take a relevant consideration into account. It is thus hardly surprising that the Commission has not identified any paragraphs in the judgment under appeal in which default interest is held to be punitive in nature. The point the Commission makes is clearly of a legal nature. I therefore advise the Court to reject Deutsche Telekom’s objection to the admissibility of the first ground of appeal.
28. These observations are, in my view, sufficient to answer Deutsche Telekom’s objections (i) to the admissibility of the first part of the first ground of appeal and the second ground of appeal on the basis that they repeat arguments raised before the General Court, and (ii) to the admissibility of the second, third, fourth, fifth and sixth parts of the first ground of appeal on the basis that they are raised for the first time on appeal. For the avoidance of doubt, I consider that the various arguments under the rubric of the second, third, fourth, fifth and sixth parts of the first ground of appeal are points of law arising from the judgment under appeal which the Commission is entitled to raise before the Court of Justice.
29. Accordingly, I advise the Court to reject Deutsche Telekom’s objection to the admissibility of the appeal and to admit it in full.
B. Substance
1. Errors of law in establishing an obligation to pay default interest from the date of the provisional collection of the fine
– Arguments of the parties
30. The first ground of appeal has six parts. In the first part it is argued that the judgment under appeal is vitiated by an error of law in so far as it ordered the Commission to pay default interest on EUR 12 039 019 from the date of the provisional collection of the fine until the date of delivery of the 2018 judgment. The Commission reimbursed the principal sum owed to Deutsche Telekom as a consequence of the 2018 judgment. The application of Article 90(4) of Delegated Regulation No 1268/2012, the lawfulness of which the General Court did not rule upon, to the amount of the fine provisionally collected yielded negative interest. The Commission did not pass on that loss to Deutsche Telekom.
31. By the second part of the first ground of appeal, the Commission submits that the judgment under appeal contradicts the case-law that predated the judgment in Printeos. The case-law governing unduly collected charges, (10) the recovery of unlawful State aid (11) and the reimbursement of anti-dumping duties (12) indicates that, in circumstances comparable to those under consideration in the present appeal, the Commission is required to pay compensatory, not default, interest in order to avoid unjust enrichment. Case-law governing the repayment of fines imposed for breaches of competition law comes to the same conclusion. (13) While the judgment in Guardian Europe (14) refers to ‘default interest’, the Commission repaid that fine, together with interest accrued, under Article 90 of Delegated Regulation No 1268/2012, such that no issue of default interest arose. The Court’s judgment in IPK International (15) involved the payment of default interest from the date of a General Court judgment that had annulled a decision to cancel a grant of financial assistance, thus reviving the decision to pay that assistance. That case did not concern the payment of default interest from the provisional collection of a fine until delivery of a ruling setting aside all or part of the decision to impose it.
32. The Commission accepts that the first paragraph of Article 266 TFEU obliges it to repay the fine provisionally collected together with any interest yielded by the application of Article 90(4) of Delegated Regulation No 1268/2012, in order to prevent the European Union’s unjust enrichment. The judgment under appeal confuses default interest, which is punitive in nature, with compensatory interest. An obligation on the Commission to pay default interest on fines provisionally collected in the present economic climate would lead to unjust enrichment of the undertakings concerned.
33. By the third part of the first ground of appeal the Commission contends that the judgment under appeal does not take account of Article 90(4) of Delegated Regulation No 1268/2012. For it not to have applied that provision, the General Court was required to decide that it was contrary to Article 266 TFEU. The effect of the General Court’s judgment is to render Article 90(4) of Delegated Regulation No 1268/2012 devoid of purpose since the amount of interest that its application might yield would never, in practice, exceed that generated by the application of a default interest rate.
34. According to the fourth part of the first ground of appeal the facts of the present case do not satisfy the conditions for invoking the non-contractual liability of the European Union. Since the provisional payment of the fine was lawful, the Commission was under no obligation to pay default interest at the time it received that sum. It therefore could not have committed a sufficiently serious breach of a rule of law. Since the duration of the legal proceedings caused some delay, and the Commission had no control over that factor, it could not be held liable for any sufficiently serious breach of a rule of law. The Commission further pleads that Deutsche Telekom has not demonstrated that it suffered loss quantifiable as equivalent to the rate of interest applied by the ECB to its principal refinancing obligations, increased by three and a half percentage points.
35. By the fifth part of the first ground of appeal the Commission submits that the judgment under appeal erred in law by holding that the ex tunc effects of the 2018 judgment required it to pay default interest from the date of the provisional collection of the fine. According to well-established case-law, Commission decisions are presumed lawful until declared otherwise. (16) Since actions brought before the EU Courts do not have suspensory effect, the 2014 decision was enforceable until its annulment by the General Court. An obligation to repay the fine could not therefore have arisen before the delivery of the 2018 judgment. In addition, prior to that judgment, any sum the Commission might have owed to Deutsche Telekom was neither certain nor ascertainable by reference to objective factors. That the maximum amount of any sum owed could have been ascertained is irrelevant.
36. Contrary to what Deutsche Telekom claims, where an undertaking does not provide a bank guarantee pursuant to Article 78 et seq. of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (‘the Financial Regulation’), (17) the Commission is required to enforce the decision by provisionally collecting the fine. Should it fail to do so, the Commission runs the risk of being unable to collect the fine after all legal remedies have been exhausted, for instance in a case where an undertaking goes bankrupt in the meantime, thereby failing to protect the Union’s financial interests.
37. The Commission points out that undertakings have the choice either to provide a bank guarantee and to keep the sums owed during the course of the litigation or to pay the fine on a provisional basis. In the latter case, the undertaking receives whatever interest is yielded by the application of Article 90(4) of Delegated Regulation No 1268/2012, payment of which is designed to provide adequate compensation for the unavailability of the amount unduly paid and any depreciation in its value. An undertaking that claims it suffered additional harm as a consequence of having made an undue payment can also bring an action for damages pursuant to Article 340 TFEU.
38. The Commission argues that the judgment under appeal leads to absurd results. First, in the exercise of their unlimited jurisdiction to set the amount of a fine, the EU Courts substitute the Commission’s appraisal for their own. Since it is impossible to know in advance whether the EU Courts will exercise that jurisdiction and, if so, the amount they will fix by way of a fine, the Commission cannot be required to pay default interest in respect of periods prior to the exercise of that jurisdiction. Second, where the Commission adopts a new decision to impose an identical fine after the EU Courts annulled the initial decision due to errors in its calculation, an obligation on the Commission to pay default interest amounts to a reduction of that fine. Third, cases in which the General Court and the Court of Justice reach different conclusions about the legality of fines create considerable uncertainty as to their quantification. (18) These considerations show that, prior to the delivery of the final judgment, it is impossible to ascertain the amount which the Commission might ultimately be required to refund to an undertaking that has provisionally paid a fine.
39. In the sixth part of the first ground of appeal, the Commission submits that requiring it to pay default interest from the date of a provisional collection of a fine undermines its deterrent effect. When it fixes fines, the Commission is in no position to anticipate either the duration or the outcome of litigation. The application of the principle resulting from the judgment in Printeos and the judgment under appeal can therefore have disproportionate and undesirable consequences, as the Intel case illustrates. (19)
40. Deutsche Telekom asks the Court to dismiss the first ground of appeal.
41. As regards the first part of the first ground of appeal, Deutsche Telekom submits that the case-law does not require that any delay in honouring an existing debt be established in order to require an EU institution to pay default interest. The Commission refused to pay interest when it reimbursed the part of the fine that had been annulled.
42. Deutsche Telekom considers that the case-law cited in support of the second part of the first ground of appeal concerns situations different from those under consideration in the instant case and that there is therefore no contradiction between that case-law and the judgment in Printeos. The case-law does not support the Commission’s position that it can refrain from paying interest where a fine provisionally collected yields no interest.
43. The third part of the first ground of appeal should be dismissed because Article 90(4) of Delegated Regulation No 1268/2012 does not affect the obligation to pay default interest under the first paragraph of Article 266 TFEU. Deutsche Telekom suggests that the Commission is obliged to pay default interest or the interest yielded by the application of Article 90(4) of Delegated Regulation No 1268/2012, whichever is greater. In the event that the Court were to interpret that provision as excluding an obligation to pay interest under the first paragraph of Article 266 TFEU, Deutsche Telekom relies on the plea of illegality that it had raised at first instance.
44. By way of response to the fourth part of the first ground of appeal, Deutsche Telekom submits that the refusal to pay any interest constituted a sufficiently serious breach of the first paragraph of Article 266 TFEU that caused it to suffer harm. Deutsche Telekom was accordingly obliged to bring an action for damages pursuant to the second paragraph of Article 266 and Article 340 TFEU if it sought to obtain compensation for that harm.
45. The fifth part of the first ground of appeal should be dismissed because, although its decisions enjoy a presumption of validity and are enforceable, the Commission is not required to collect fines on a provisional basis. The Financial Regulation’s requirement that the Commission recover claims does not apply to fines. Nor should undertakings have to bear exclusively the risks of litigation in the field of competition law. From an examination of the pleas in law in an action for annulment of a decision to impose a fine, it is possible to ascertain the maximum amount that the Commission might be liable to pay. The judgment under appeal thus correctly held that the effects ex tunc of the partial annulment required the Commission to pay default interest on the amount unduly paid from the date of the provisional collection of the fine.
46. Although Deutsche Telekom recognises that the deterrent effect of fines for breach of the competition rules is a legitimate goal, as far as the sixth part of the first ground of appeal is concerned, it reiterates that the Commission is under no obligation to collect fines provisionally. The obligation to pay default interest from the date of the provisional collection of the fine is a consequence of the Commission’s decision to collect the fine before all legal remedies are exhausted. If the Commission were to postpone the collection of the fine until that time, the deterrent effect of the fine would be preserved in so far as the undertaking concerned would need to maintain sufficient financial reserves for the duration of any proceedings it had initiated. Lastly, the consequences for Intel of the principles set in out in the judgment under appeal are irrelevant.
– Legal analysis
47. The first paragraph of Article 266 TFEU requires an EU institution, an act of which has been declared void, to take all necessary measures to comply with that judgment. I have three observations to make on that provision. My first is that the obligation to take such measures is conditional upon the existence of a judgment. It is vital to distinguish the existence of a judgment from its effects. In law and in fact a judgment declaring the annulment of an act comes into existence as of and from the moment it is delivered. From that moment, the judgment causes that act to disappear from the EU legal order with effect from the date upon which that measure had entered into force. (20) It is obvious that it is impossible to comply with a judgment before it has been delivered. An EU institution cannot, moreover, begin to comprehend the measures that it may be required to take by way of compliance until it knows with what it must comply. The 2014 decision was lawful at the time of its adoption. Soon thereafter, and in compliance therewith, Deutsche Telekom provisionally paid the entire fine to the Commission. Upon delivery of the 2018 judgment, it transpired that Deutsche Telekom had unduly paid a portion of that sum, the amount of which could not have been estimated before that event occurred.
48. If the existence of a judgment is a prerequisite for any requirement to take the measures necessary to comply therewith, it follows that the Commission could not have acted contrary to the first paragraph of Article 266 TFEU prior to delivery of the 2018 judgment. The finding in paragraph 111 of the judgment under appeal, to the effect that the Commission had been in breach of the first paragraph of Article 266 TFEU prior to delivery of the 2018 judgment, by reason of which it was required to pay Deutsche Telekom default interest, is thus unfounded as a matter of law and logic.
49. My second observation is that the first paragraph of Article 266 TFEU does not define the measures necessary to effect compliance with a judgment, which in the first instance is a matter for the institution concerned to identify and, in the event of dispute, a matter for the EU Courts to determine. (21) That obligation may be satisfied in a variety of ways, including the adoption of a new measure, abstention from the adoption of a measure or, as in this case, the payment or repayment of money. (22) Where, prior to its annulment in whole or in part, a measure has been executed, even on a provisional basis, the necessary measures envisaged by the first paragraph of Article 266 TFEU include an obligation to restore, in so far as possible, the applicant to the position it was in prior to the adoption of the measure declared void. (23) Such measures must logically include an obligation on the part of the Commission to ensure that a party that has paid money unduly receives the same monetary value upon its return. That duty exists independently of any claim for compensation for losses, the existence of which the second paragraph of Article 266 TFEU acknowledges expressly. The duty under the first paragraph of Article 266 TFEU is also distinct from any obligation that might arise to repay any unjust enrichment that might accrue to an EU institution as a result of it holding sums unduly paid to it. I therefore agree with Deutsche Telekom’s contention that the duty to make full restitution is independent of, and does not depend upon, the application of the mechanism contained in Article 90(4) of Delegated Regulation No 1268/2012, which, moreover, appears to have been designed to account for any unjust enrichment of the EU institutions. (24)
50. My third observation is that the first paragraph of Article 266 TFEU imposes a straightforward obligation on the EU institutions to give full effect to the judgments of the EU Courts. It does not aim to penalise them. The first paragraph of Article 266 TFEU does not provide a legal basis for measures that would require an EU institution to pay excessive or punitive rates of interest. The second paragraph of Article 266 TFEU supports that observation since it expressly preserves an undertaking’s right to invoke the European Union’s non-contractual liability, irrespective of the extent of an EU institution’s compliance with the first paragraph thereof. The Treaties thus make a clear distinction between a right to require the EU institutions to take the measures necessary to comply with a judgment of the EU Courts and an entitlement to compensation for harm caused by the unlawful conduct of those institutions. (25)
51. The General Court dismissed Deutsche Telekom’s action for compensation for the loss that it had allegedly sustained due to being deprived of the use of the monies it had provisionally paid. There is no cross-appeal against that finding. For both that reason and those contained in points 47 and 48 of the present Opinion, in the absence of a breach of the first paragraph of Article 266 TFEU by the Commission prior to delivery of the 2018 judgment, no issue of compensation under the second paragraph of Article 266 TFEU, read in conjunction with the second paragraph of Article 340 thereof arises.
52. The question remains as to whether the first paragraph of Article 266 TFEU may require the Commission to pay default interest on an amount unduly paid from the time of that payment until the delivery of a judgment which has the effect of removing the legal justification that served as the basis for the payment of that sum.
53. The Treaties do not mention default interest. In so far as EU legislation refers to the concept in the title of Article 83 of Delegated Regulation No 1268/2012, the term ‘default interest’ in the English-language text is rendered as ‘Intérêts moratoires’ in the French-language version, ‘Intereses moratorios’ in the translation into Spanish, ‘Juros de mora’ in the Portuguese-language version and ‘Interessi di mora’ in the Italian rendition. Those expressions derive from the Latin word mora, which means ‘delay’. Under Roman law, the mora debitoris applied where a debtor did not comply with a clearly established obligation within a defined time period: in other words it was designed to act as an incentive to meet obligations on time and thus as a penalty for non-compliance with a demand for payment of a sum of money that was ascertainable at the time that demand was made.
54. Article 83 of Delegated Regulation No 1268/2012 reflects those origins. Article 83(1) thereof provides that ‘… any amount receivable not repaid on the deadline referred to in Article 80(3)(b) shall bear interest in accordance with paragraphs 2 and 3 of this Article’. Under Article 80(3) of Delegated Regulation No 1268/2012, a debit note is to inform a debtor that the Union has established an amount receivable and that no default interest will be due if payment of that debt is made before a specified deadline. The debit note further informs the debtor that failing reimbursement by the deadline set, the debt will bear interest at the rate to which Article 83 of Delegated Regulation No 1268/2012 refers, namely that which is applied by the ECB to its principal refinancing operations, increased by three and a half percentage points. It follows that default interest is payable where an EU institution has provided a debtor with a deadline to pay an amount owed to it and that debtor fails to pay by that deadline. Payment of a sum indicated in a debit note before the expiry of that deadline does not incur default interest.
55. Those provisions are consistent with a literal interpretation of the term ‘default interest’, whereby such interest is due where a debtor defaults on an obligation to pay a sum by a specific deadline. Since the Commission did not default on an obligation to refund the unduly paid sum to Deutsche Telekom, the payment of such interest does not appear to be a necessary measure to comply with a judgment of the EU Courts for the purposes of the first paragraph of Article 266 TFEU.
56. It has been authoritatively observed that the legal systems of the Member States do not recognise any general principle whereby default interest is calculated from the date of the loss. (26) Do the laws of the Member States require payment of default interest in circumstances where, as a consequence of a court order, part or all of a sum is held to have been unduly paid to a national administration? It is my understanding that, in circumstances analogous to those that arise in the present appeal, that issue does not arise under German, Irish, Austrian and Finnish law since fines for breaches of competition law do not apply until all legal remedies are exhausted. Eleven Member States (27) appear to impose an obligation on the administration to pay, from the date of collection, interest on monies lawfully collected but subsequently held to have been unduly paid. That obligation seeks to compensate for the unavailability of those funds and/or to prevent unjust enrichment. It does not refer to any delay in making a refund. (28) Such interest is not, accordingly, default interest as that term is usually understood. In the event that a public authority delays reimbursing sums unduly paid, four Member States appear to impose a specific obligation to pay default interest. (29)
57. I will now examine the Court’s case-law on this issue.
58. Early case-law distinguished between interest linked to a delay in the settlement of a debt, later designated as default interest, which required notice to be given of the date on which a debt fell due, and compensatory interest payable, as a consequence of damage resulting from an unlawful act, which did not require such notice to be given. (30) Subsequent case-law confirmed that default interest was payable solely by reason of a delay in the performance of an obligation to pay or repay an amount of money. (31) Default interest thus ran from the date of a judgment that established that an EU institution owed a debt. (32) Where the Commission repaid monies that were subsequently found to have been unduly paid, the Court of First Instance held that the interest rate applied by the Commission pursued a different objective from that of default interest, the first being aimed at preventing the Community’s unjust enrichment, whilst the second sought to limit any improper delay in returning those amounts. (33)
59. The judgment in Corus marked a departure from this case-law in form but not, it is submitted, in substance. The Commission refused to pay any interest on a sum it had reimbursed to Corus due to the partial annulment of a fine for a breach of competition law. (34) Corus brought an action for damages before the Court of First Instance seeking, inter alia, interest by way of compensation for loss of use of the money it had provisionally paid to the Commission. (35) Describing that claim as one for ‘default interest’, the Court of First Instance allowed it by reason of the need to compensate for the depreciation of money and to avoid the Union’s unjust enrichment. (36) The Court of First Instance awarded Corus a sum equivalent to the interest which the Commission assessed the amount of the unduly paid fine would have earned between the date of its provisional collection and that of its reimbursement. (37) The use of the term ‘default interest’ thus obscured the fact that the Court of First Instance awarded interest by relying upon concepts of restitution and unjust enrichment, which are relevant to measures taken to comply with a judgment of the EU Courts. Under a different head of claim, the Court of First Instance awarded what was in fact default interest calculated from the date the Commission had repaid the principal amount of the fine until the date it delivered judgment in Corus. (38)
60. IPK International arose out of a successful challenge to a Commission decision to cancel certain financial assistance that it had initially granted to IPK. On the annulment of that decision, the Commission paid the applicant both the sums that it had recovered from it and those that it had not disbursed to it, together with compensatory interest. (39) IPK brought a fresh action to annul the Commission’s decision refusing to pay default interest. The General Court concluded that, ‘regardless of the precise name used to describe that interest,’ interest ought to be calculated as if it were default interest, namely by reference to the rate that the ECB applied to its main refinancing operations, increased by two percentage points. (40) The General Court ordered the Commission to pay default interest from the date of the judgment annulling the refusal to pay that interest. (41) As in the judgment in Corus, when it came to directing the payment of interest with respect to sums awarded in its judgment, the General Court distinguished between the interest it had not put a name to and default interest as the Court’s case-law had hitherto described that term.
61. The Commission appealed against the General Court’s judgment. In his Opinion, Advocate General Bot distinguished between compensatory interest and default interest in the context of actions for damages and accepted that an obligation to pay default interest could not arise before delivery of a judgment that established the obligation to make good the damage. He did not apply that approach to claims for the repayment of money unduly paid. (42) In so doing, he read the judgment in Corus (43) as if the Court of First Instance had ordered the payment of default interest when, as point 59 of the present Opinion explains, it had in fact ordered the payment of what was, on any objective assessment, interest for the purpose of making restitution and avoiding unjust enrichment. Under the heading ‘Lessons drawn from the case-law’, Advocate General Bot held that compensatory and default interest ‘play the same role in functional terms, that is, to make up for the loss suffered by the creditor, who has been deprived of the benefit of the amount owed’. (44) He added that ‘compensatory interest … compensates for the passing of time until the judicial assessment of the amount of damage, irrespective of any delay attributable to the debtor, whereas default interest offers a standard rate of compensation for the consequences of the delay in payment of the receivable by permitting the creditor to receive roughly what he [or she] would have obtained if he [or she] had invested the funds’. (45) Advocate General Bot considered that the right to such default interest stemmed from the first paragraph of Article 266 TFEU. (46) He nevertheless inferred from the case-law that, in the case of an annulment, the main concern of the EU Courts ‘must be to apply as strictly as possible the principle restitutio in integrum, entailing a return to the status quo ante and ensuring that each party is restored to its original position without loss or gain’. (47) It is that last observation that grounds the obligations, under the first paragraph of Article 266 TFEU, upon the concept of restitution, rather than the need swiftly to comply with financial obligations. Advocate General Bot went so far as to criticise that judgment for having distinguished between compensatory interest and default interest. (48)
62. The Court of Justice adopted a more succinct reasoning in its judgment in IPK International. (49) It ruled that ‘the payment of default interest constitutes a measure giving effect to a judgment annulling a measure … that is designed to compensate at a standard rate for the loss of enjoyment of the monies owed and to encourage the debtor to comply with that judgment as soon as possible’. (50) It held that the General Court had accordingly erred in law in finding that the Commission owed compensatory interest when compliance with a judgment in accordance with the first paragraph of Article 266 TFEU required an award of default interest. (51)
63. To the best of my knowledge, the Court’s judgment in IPK International was the first time the Court had held that default interest is designed to compensate at a standard rate for the loss of enjoyment of monies owed. The judgment contains neither authority nor an explanation for arriving at that conclusion. Its origin may be traced to point 77 of the Opinion of Advocate General Bot, which likewise neither refers to any authority nor provides any justification in support of that conclusion. Although the Court added that default interest also seeks to encourage the debtor to comply with the annulment judgment as soon as possible, it ruled for the first time that interest may be payable in respect of a period prior to the delivery of the judgment to be enforced. It is not immediately obvious how the legitimate goal of encouraging compliance with demands for payment is achieved by creating an obligation to pay default interest for a period that precedes the delivery of a judgment, as opposed to an obligation to pay default interest from the date of a judgment. (52) As points 48 and 49 of the present Opinion observe, there is nothing in Article 266 TFEU to support that conclusion.
64. In the judgment in Wortmann, the Court refrained from endorsing an argument to the effect that, following the annulment of a regulation by the EU Courts, national authorities are liable to pay default interest on anti-dumping duties that they had unduly collected under that regulation. (53) It held instead that ‘the amount of those duties reimbursed to the undertaking concerned by the competent national authority must be increased by the corresponding interest’. (54) Advocate General Campos Sánchez-Bordona has also opined that the judgment in IPK International is to be read in the light of the specific features of that dispute, such that it cannot be inferred that the Court intended to reverse its case-law on the definition of default interest. (55) He went on to state that whilst case-law has established a principle of EU law pursuant to which sums unduly paid in breach of EU law must be repaid with interest from the date of that undue payment, it does not follow that default interest is due from that date. (56)
65. The judgment under appeal also refers to the Court’s judgment in Guardian Europe. In November 2014, Guardian Europe succeeded in its action to reduce a fine that the Commission had imposed on it in 2007. (57) In December 2014, the Commission repaid that part of the fine which had been annulled, together with interest on that sum in the amount of EUR 988 620 pursuant to the application of Article 90(4) of Delegated Regulation No 1268/2012. (58) Guardian Europe then commenced proceedings against the European Union seeking compensation for damages allegedly sustained due to the length of the legal proceedings. That action for damages was held to be admissible because it did not challenge the December 2014 decision, which had become final. (59) The General Court awarded compensation for material damage in the sum of EUR 654 523.43, increased by what it described as ‘compensatory interest’ at the annual rate of inflation in Guardian Europe’s Member State of establishment, until the date of delivery of its judgment. It also awarded default interest on that amount from the date of the delivery of that judgment until receipt of payment. (60)
66. On appeal, the European Union argued that the General Court had erred in law by dismissing its plea that the action was inadmissible. Whilst it upheld the General Court’s finding on that point, (61) the Court of Justice appears to have misread the General Court’s judgment in so far as it stated that the sum of EUR 988 620 was ‘default interest’ (62) when in fact it corresponded to the ‘interest yielded’ paid by the Commission in accordance with Article 90(4) of Delegated Regulation No 1268/2012. (63) The Court of Justice ultimately concluded that the General Court had erred in law by its award of compensation to Guardian Europe and dismissed the action for damages. (64)
67. The judgment in Printeos, upon which the judgment under appeal relies, appears to be the latest significant iteration of the case-law. The Commission imposed a fine on Printeos for a breach of the competition rules, which that undertaking paid provisionally. (65) Following the annulment of that decision, the Commission repaid the full amount of the fine without interest because the fund in which it had invested the fine (66) had yielded a negative return. (67) Printeos brought an action for damages pursuant to the second paragraph of Article 266 TFEU, in conjunction with the second paragraph of Article 340 thereof. (68) At the hearing, Printeos submitted that its application for payment of compensatory interest was to be understood as an application for default interest. Notwithstanding a further indication that it did not wish to maintain that a breach of the first paragraph of Article 266 TFEU was the principal legal basis of its claim for compensation, (69) the General Court based its analysis on that provision. (70) Relying on the judgment of the Court of Justice and the Opinion of Advocate General Bot in IPK International, (71) the General Court concluded that the first paragraph of Article 266 TFEU obliged the Commission to repay the principal amount of the fine, together with default interest as compensation at a standard rate for the loss of use of that amount from the date of the provisional collection of the fine until the date of repayment of the principal. (72)
68. The judgment in Printeos found that, in accordance with the principle iura novit curia, the General Court was entitled to characterise the interest claimed as default interest, rather than compensatory interest as per the applicant’s initial claim. (73) As for the substance, the Court of Justice distinguished between default interest and compensatory interest. Default interest is designed to compensate at a standard rate for the loss of enjoyment of monies owed and to encourage the debtor to pay as soon as possible, (74) whilst compensatory interest is designed to compensate for the time that passes before the judicial assessment of the amount of the loss sustained, irrespective of any delay attributable to the debtor. (75) The Court of Justice thus concluded that the General Court had not erred in law when it ordered the Commission to pay default interest. (76) Since the case concerned the repayment of a fixed amount, namely the fine imposed on Printeos that had been annulled, the question of compensatory interest did not arise. (77)
69. I have the following four observations to make on the judgment in Printeos.
70. First, the Court’s conceptualisation of compensatory interest by reference to the second paragraph of Article 266 TFEU, in conjunction with the second paragraph of Article 340 thereof, as limited to compensation for the loss of money due to the passage of time, is excessively narrow. There are a variety of reasons that can justify an award of compensation due to an undue payment, including the loss of a specific business opportunity due to the unavailability of those funds, which argument Deutsche Telekom did not succeed in proving on the facts put before the General Court. (78)
71. Second, the Court referred to the judgment in IPK International (79) to support the proposition that default interest is designed to compensate at a standard rate for the loss of enjoyment of the monies owed. As point 63 of the present Opinion observes, that statement appears to originate from the Opinion of Advocate General Bot in that case, (80) which neither referred to any authority nor gave any explanations in support of it. Commentators have criticised that case-law as blurring the distinction between default interest and compensatory interest by altering the definition of default interest. (81) In a similar vein, it has also been opined that that case-law confuses the distinction between default interest and compensatory interest. (82) While default interest provides an incentive to settle a debt rapidly and is calculated from the date of the judgment fixing the amount of compensation until payment, compensatory interest takes account of the period before the date of the judgment since its purpose is to compensate for loss caused by the deprivation of the use of money. (83) In my view, these observations provide a convincing explanation for the existence of a distinction between default and compensatory interest, which is completely absent from the case-law targeted by these criticisms.
72. Third, in response to the criticism that the obligation to pay default interest is not an incentive to comply with a judgment since that interest is calculated from the date of the provisional payment of the fine, the Court stated that that incentive is only one of the two objectives the payment of default interest pursues, the other being the provision of compensation at a standard rate for the loss of enjoyment of funds. (84) That response again simply conflates the concepts of compensatory and default interest without providing any authority or explanations for so doing. (85) The objective of compensatory interest is to provide compensation. The objective of default interest is to ensure the expeditious payment of debts that have fallen due. It is not possible to wish away the difference that exists between these two concepts.
73. Fourth, the Court added that the obligation to pay default interest from the date of the provisional payment of the fine ‘is an incentive for the institution concerned to pay particular attention when adopting such decisions’. (86) That response ignores the criticism that the obligation to pay default interest for a period preceding the delivery of a judgment is incapable of being an incentive to comply therewith as soon as possible, that being the essential feature of default interest. The Court suggests that exposure to the risk of being obliged to pay default interest ought to lead the Commission to be particularly attentive in order to avoid acting unlawfully when it imposes fines. The EU institutions, including the Court, are under a general duty not to commit illegalities. When that happens, the Treaties provide that the appropriate remedies are restitution, pursuant to the application of the first paragraph of Article 266 TFEU, and compensation for any harm suffered pursuant to the second paragraph of Article 266 TFEU, in conjunction with the second paragraph of Article 340 thereof.
74. By reference to the Court’s case-law as it stands subsequent to the judgment in Printeos, it appears that what is described as ‘default interest’, charged from the date of an undue payment until its reimbursement, is designed simultaneously (a) to compensate at a standard rate for the loss of enjoyment of monies owed; (b) to provide an incentive to comply with a judgment; and (c) to act as an incentive to EU institutions to pay particular attention when taking decisions. The present Opinion points out that ‘default interest’ is neither the restitutionary interest payable under the first paragraph of Article 266 TFEU, nor is it the compensatory interest that the second paragraph of Article 266 TFEU makes available. (87) The Treaties contain no legal basis for requiring payment of the interest that the judgment in Printeos seems to contemplate. With the exception of where it is charged in respect of a period after delivery of a judgment, such ‘default interest’ cannot constitute an incentive to comply with a judgment before that judgment has been delivered, which is, moreover, a condition for the application of the first paragraph of Article 266 TFEU. The assertion that such ‘default interest’ provides an incentive to comply with the law not only introduces the peculiar concept of the Court exercising some kind of disciplinary function in order to remind EU institutions to comply with their duties, but also introduces a punitive element for which the first paragraph of Article 266 TFEU does not provide any legal basis. Lastly, the Treaties do not contain an obligation to pay interest at a standard rate. Any requirement to pay interest falls to be assessed by reference to one or more, depending upon the circumstances, of the four legal obligations that a party may invoke for that purpose: to make restitution, to pay compensation, to make good any unjust enrichment and to pay any such amounts promptly.
75. In a recent judgment in Gräfendorfer, the Court found that any person on whom a national authority imposes the payment of a tax, charge or other levy in breach of EU law has the right, under EU law, to obtain repayment from the Member State concerned of the corresponding sum of money, together with interest to compensate for the unavailability of that sum. (88) It follows from that judgment that losses resulting from the unavailability of sums unduly paid may be recouped by reference to the requirement to make restitution and/or pay compensation. Nothing in that judgment supports the idea that EU law requires national authorities to pay default interest on money paid in breach of EU law calculated by reference to the date when it was paid. As a consequence of the Court’s approach in its judgment in Gräfendorfer, we appear to have the rather unusual situation whereby an EU institution that is found to have received money unduly must pay default interest calculated from the date of its receipt until that of its return, whereas a national authority that received monies in similar circumstances is simply required to compensate for the unavailability of the sums unduly paid. No rationale has been given for this difference in treatment and it is far from clear how it could be justified.
76. The existence of legitimate differences of opinion over the interpretation and application of EU law is a commonplace feature of the appeal procedure before the Court. (89) Imposing an obligation on the Commission to pay default interest in the absence of any delay in its compliance with a judgment appears to be particularly inappropriate where the litigation before the EU Courts can continue for a considerable period of time, over which the Commission has no control. (90) For the sake of completeness, I would add that, contrary to what Deutsche Telekom argues, under the existing law, the Commission cannot postpone the collection of the fine until the conclusion of any litigation before the EU Courts. (91) Under Article 78(2) of the Financial Regulation, the own resources made available to the Commission and any amount receivable ‘shall’ be established by a recovery order. Article 90(1) of Delegated Regulation No 1268/2012 further provides that, where an action is brought before the Court against a Commission decision imposing a fine, the debtor must either provisionally pay the amount concerned or provide a bank guarantee. Nothing in these provisions authorises the Commission to postpone the collection of a fine pending the outcome of litigation.
77. To summarise, where an undertaking is found to have made an undue payment to an EU institution, the amount that that institution is required by law to refund to that undertaking must be calculated having regard to the following four requirements:
– ensure the undertaking receives precisely the same value in monetary terms as the sum that it paid over (restitutio in integrum), in compliance with the first paragraph of Article 266 TFEU;
– pay compensation to the undertaking for any losses it suffered as a consequence of its money being unavailable, further to the second paragraph of Article 266 TFEU, in conjunction with the second paragraph of Article 340 thereof;
– make good any unjust enrichment which an EU institution may have received, pursuant to Article 90(4) of Delegated Regulation No 1268/2012;
– once those sums are ascertained, refund them without delay in order to avoid any default on its obligations under the first paragraph of Article 266 TFEU.
78. In the light of these conclusions I will assess the first ground of appeal.
– Assessment of the appeal
79. The purpose of default interest is to provide an incentive for the debtor to comply promptly with a judgment of the EU Courts. In February 2019, the Commission complied with the 2018 judgment by refunding that part of the fine that had been annulled. It follows that the only default interest that the Commission might be liable to pay relates to the period as between those two dates. In so far as the General Court, in the judgment under appeal, established an obligation to pay default interest in respect of a period prior to the date of the delivery of the 2018 judgment, it erred in law. That conclusion is without prejudice to the Commission’s obligation to comply with the principle restitutio in integrum, which includes an obligation to repay a sum that takes into account the depreciation of money, (92) to Deutsche Telekom’s entitlement to seek compensation for any harm that it might have sustained as a consequence of the provisional collection of the fine (which right it exercised) or to any argument that might be based on the unjust enrichment of the Commission. I therefore advise the Court that the first part of the first ground of appeal is well founded.
80. As far as the argument that the judgment under appeal is contrary to the case-law delivered prior to the judgment in Printeos is concerned, I observe that the early case-law clearly distinguished default interest from compensatory interest. The judgment in Corus began a process whereby at first the term ‘default interest’ was used to describe something that it was not, before the judgment in IPK International blurred the distinction between default interest and compensatory interest to the point that it evaporated. It may be added, as the Commission correctly observes, that the Court’s judgment in Guardian Europe does not support the proposition that the Commission is obliged to pay default interest because in that case it had paid interest in accordance with Article 90(4) of Delegated Regulation No 1268/2012, for which act the Court did not criticise the Commission. I thus advise the Court that the second part of the first ground of appeal is well founded.
81. The Commission submits that the judgment under appeal ought to have examined the plea of illegality Deutsche Telekom raised with regard to Article 90(4) of Delegated Regulation No 1268/2012 since that provision is designed to meet the circumstances of the present case. (93) Article 90(4) of Delegated Regulation No 1268/2012 does not affect the obligations that the first paragraph of Article 266 TFEU imposes upon the Commission since that provision is not designed to ensure compliance with that Treaty provision and may not, in fact, do so. I therefore advise the Court to reject the third part of the first ground of appeal.
82. For the reasons set out in points 47 to 50 and 69 to 74 of the present Opinion, the Commission’s receipt of the provisional payment of the fine did not constitute a breach of the law, whether sufficiently serious in character or otherwise, that was capable of being ascertained prior to the delivery of the 2018 judgment. It therefore incurred no liability to pay default interest to Deutsche Telekom in respect of the period prior to the occurrence of that event. On that basis alone, and without the need to examine the other arguments put forward by the Commission, I advise the Court that the fourth part of the first ground of appeal is well founded.
83. By the fifth part of the first ground of appeal it is claimed that the effects ex tunc of the 2018 judgment do not require the Commission to pay default interest from the date of the provisional collection of the fine. Under Article 299 TFEU, Commission decisions to impose a pecuniary obligation on undertakings are immediately enforceable. The effects ex tunc of the 2018 judgment to reduce the amount of the fine required the Commission to reimburse Deutsche Telekom the amount that it was held to have unlawfully collected. In effecting that reimbursement, the first paragraph of Article 266 TFEU required the Commission to take into account any depreciation in the value of money due to the passage of time between the date of provisional collection and the date of delivery of the 2018 judgment. That obligation did not extend to requiring the Commission to pay Deutsche Telekom default interest calculated from the date of provisional payment until the date of delivery of the 2018 judgment. Accordingly, I advise the Court to allow the fifth part of the first ground of appeal.
84. Case-law has established that the Commission may adopt a policy to ensure that the penalties it imposes for breaches of EU competition law have a deterrent effect. (94) Such a policy is incapable of having any bearing on any obligation on the Commission to pay default interest in cases where it fails to comply with a judgment promptly. I therefore advise the Court to reject the sixth part of the first ground of appeal.
85. I advise the Court to allow the first, second, fourth and fifth parts of the first ground of appeal and to reject the remainder of that ground.
2. Error of law in determining the rate of the default interest payable
– Arguments of the parties
86. The Commission puts forward four arguments in support of its second ground of appeal to the effect that the judgment under appeal is vitiated by an error of law in so far as the General Court applied Article 83(2)(b) of Delegated Regulation No 1268/2012 by analogy when it ruled that the default interest payable must be calculated by reference to the rate applied by the ECB to its principal refinancing obligations, increased by three and a half percentage points.
87. First, Article 83(2)(b) of Delegated Regulation No 1268/2012 governs the payment of default interest by debtors where they are late in making payment to the Commission on foot of a debit note that must contain certain information. The nature of default interest is such that it cannot be charged until the obligation to pay the principal sum exists.
88. Second, the reference in the Court’s judgment in Guardian Europe (95) to default interest was incorrect since that case involved payment of ‘interest yielded’ calculated in accordance with Article 90 of Delegated Regulation No 1268/2012, which procedure the Court validated.
89. Third, the judgment under appeal misinterprets the judgment in Printeos, where at Printeos’ request the Court awarded interest at the rate applied by the ECB to its principal refinancing obligations, increased by two percentage points. Neither the General Court nor the Court of Justice awarded default interest at the rate established in Article 83(2)(b) of Delegated Regulation No 1268/2012 from the date of the provisional collection of the fine.
90. Fourth, paragraph 135 of the judgment under appeal erred in law by drawing an analogy between the situation Deutsche Telekom would have been in had it failed to pay the fine and that the Commission found itself in following delivery of the 2018 judgment. Those situations are not comparable. While Deutsche Telekom was required to pay a fine by virtue of the 2014 decision, which was presumed valid until its partial annulment by the 2018 judgment, the Commission was under no obligation to reimburse part of the fine provisionally collected before the delivery of that judgment.
91. In the event that the Court were to reject those arguments, the Commission submits that default interest should be calculated by reference to the rate applied by the ECB to its principal refinancing obligations, increased by one and a half percentage points, pursuant to Article 83(4) of Delegated Regulation No 1268/2012, which applies where a debtor fails to provide a bank guarantee by the relevant deadline. In the further alternative, the Commission asks the Court to determine the appropriate interest rate, to be fixed below the default interest rate, since the second is punitive in nature.
92. Deutsche Telekom submits that the second ground of appeal should be dismissed in so far as the judgment in Printeos establishes unequivocally that the Commission must pay default interest at the rate applied by the ECB to its principal refinancing obligations, increased by three and a half percentage points, in accordance with Article 83(2)(b) of Delegated Regulation No 1268/2012. The General Court thus enjoyed no margin of discretion when it delivered the judgment under appeal. The Court’s judgment in Guardian Europe refers to ‘default interest’ and not to ‘interest yielded’ in the application of Article 90 of Delegated Regulation No 1268/2012.
93. Deutsche Telekom also submits that the rate of default interest for which Article 83(4) of Delegated Regulation No 1268/2012 provides cannot apply by analogy since a failure to provide a bank guarantee is not comparable to liability to pay default interest on money that has been paid unduly. That is because an undertaking that provides a bank guarantee instead of provisionally paying the fine bears significant related costs that it cannot recover from the Commission, even where the EU Courts subsequently annul or reduce a fine.
– Assessment
94. If the Court allows the first ground of appeal, I advise that the second ground of appeal must also be declared well founded because default interest cannot apply in the present case for the reasons set out in points 47 to 50 and 69 to 74 of the present Opinion. In any event, while Article 83(2)(b) of Delegated Regulation No 1268/2012 provides for a rate of default interest, it is designed to apply in a set of circumstances that are not present in the instant case. It is clear from Article 83(1) of Delegated Regulation No 1268/2012, read in combination with Article 80(3)(b) and (c) thereof, that default interest is payable only upon the expiry of a deadline that the Commission fixes for the payment of a debt. That cannot apply by analogy to the calculation of interest on amounts owing prior to a judgment of the EU Courts that established both the existence and the amount of a debt. The rate of default interest set out in Article 83(2)(b) of Delegated Regulation No 1268/2012 is thus irrelevant to the rate of interest that might be charged on such an amount.
95. I advise the Court to allow the second ground of appeal and, consequently, to set aside the judgment under appeal.
IV. The action before the General Court
96. In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the decision of the General Court is set aside, the Court of Justice may itself give the final judgment in the matter, where the state of the proceedings so permits.
97. In the light of the considerations set out in points 79 to 85 and 94 and 95 of the present Opinion, I propose that the Court dismiss the application in the judgment under appeal for the annulment of the contested decision and for the award of damages in the form of default interest on the amount of the fine subsequently annulled, calculated from the date of the provisional collection.
V. Costs
98. Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court gives final judgment in the case, the Court is to decide on the costs.
99. Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
100. According to Article 138(3) of the Rules of Procedure, where each party succeeds on some heads of appeal and fails on others, the parties shall bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.
101. The issues the Commission raises in this appeal are live in a number of actions pending before both the General Court (96) and the Court of Justice (97) and the judgment that the Court will deliver in this appeal is likely to be dispositive of them. It is thus fortuitous that Deutsche Telekom came to take on the role of legitimus contradictor, a task in which its representatives have acquitted themselves well. In these circumstances, I consider that it would be disproportionate to fix a single undertaking with responsibility for the entirety of the costs incurred in what may well turn out to be a test case. Given that the current state of the law appears to have made the issues that arise for determination in these satellite proceedings unnecessarily complex, I am of the view that it was reasonable for Deutsche Telekom to have commenced proceedings to annul the contested decision and for the Commission to have appealed against the General Court’s judgment to allow that application to the Court of Justice. I accordingly advise that the Court order each party to bear its own costs in the entire proceedings.
VI. Conclusion
102. In the light of the foregoing, I advise the Court to:
(1) Set aside the judgment of the General Court of the European Union of 19 January 2022, Deutsche Telekom v Commission (T‑610/19, EU:T:2022:15);
(2) Dismiss Case T‑610/19, Deutsche Telekom v Commission;
(3) Order Deutsche Telekom AG and the European Commission to bear their own costs in Case T‑610/19, Deutsche Telekom v Commission and in Case C‑221/22 P, Commission v Deutsche Telekom.