JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
8 March 2023 (*)
(Non-contractual liability – Competition – Agreements, decisions and concerted practices – Market for car battery recycling – Decision finding an infringement of Article 101 TFEU – Judgment partially annulling the decision and reducing the amount of the fine imposed – Refusal of the Commission to pay default interest – Article 266 TFEU – Article 90(4) of Delegated Regulation (EU) No 1268/2012 – Sufficiently serious breach of a rule of law conferring rights on individuals – Rate of default interest)
In Case T‑94/20,
Campine, established in Beerse (Belgium),
Campine Recycling, established in Beerse,
represented by C. Verdonck and B. Gielen, lawyers,
applicants,
v
European Commission, represented by P. Rossi, G. Wilms and L. Wildpanner, acting as Agents,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed, at the time of the deliberations, of S. Gervasoni, President, P. Nihoul (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,
Registrar: I. Kurme, Administrator,
having regard to the written part of the procedure,
further to the hearing on 18 November 2022,
gives the following
Judgment
1 By their action, the applicants, Campine and Campine Recycling, request, principally, on the basis of Article 268 TFEU and the second paragraph of Article 340 TFEU, read in conjunction with the second paragraph of Article 266 TFEU, first, compensation for the damage which they claim to have suffered as a result of the failure of the European Commission to pay the default interest that was due following the judgment of 7 November 2019, Campine and Campine Recycling v Commission (T‑240/17, not published, EU:T:2019:778), and, second, payment of default interest on that compensation and, in the alternative, on the basis of the fourth paragraph of Article 263 TFEU, annulment of the decision contained in the Commission’s letter of 13 January 2020, or, in the further alternative, in its email of 10 December 2019 refusing to pay the said default interest and an order that the Commission pay compensation under Article 340 TFEU or adopt appropriate measures in order to comply fully with the said judgment, in accordance with the requirements provided for in the first paragraph of Article 266 TFEU.
Background to the dispute
2 On 8 February 2017, the Commission adopted Decision C(2017) 900 final relating to a proceeding under Article 101 TFEU (AT.40018 – Car battery recycling) (‘the 2017 decision’).
3 In Article 1 of the 2017 decision, the Commission found that there had been an infringement of Article 101 TFEU in the sector for the purchase of scrap lead-acid car batteries used for the production of recycled lead, in which, inter alia, the applicants had participated during the period from 23 September 2009 to 26 September 2012. In its view, it was a single and continuous infringement, in the form of agreements or concerted practices in Belgium, Germany, France and the Netherlands.
4 In Article 2(1)(a) of the 2017 decision, in view of the infringement found, the Commission imposed on the applicants, ‘jointly and severally’, a fine of EUR 8 158 000.
5 Under Article 2(2) of the 2017 decision, the fine had to be paid within a period of three months from its notification. Paragraph 3 of that article added:
‘After the expiry of that period, interest will automatically be payable at the interest rate applied by the European Central Bank to its main refinancing operations on the first day of the month in which this Decision is adopted, plus 3.5 percentage points.’
6 Last, Article 2(4) of the 2017 decision provided:
‘Where an undertaking referred to in Article 1 lodges an appeal, that undertaking must cover the fine by the due date, either by providing an acceptable financial guarantee or by making a provisional payment of the fine in accordance with Article 90 of Commission Delegated Regulation (EU) No 1268/2012 …’
7 On 20 April 2017, the applicants brought an action before the Court against the 2017 decision, registered as Case T‑240/17, seeking, principally, annulment of that decision or, in the alternative, cancellation or reduction of the fine imposed.
8 On 11 May, 9 June, 8 and 11 September, 27 October and 17 November 2017, the applicants paid the fine imposed by the 2017 decision in several instalments after the due date. They thus paid the Commission an amount of EUR 8 213 102.90, namely the amount of the fine equivalent to EUR 8 158 000 and the default interest due on account of the fine’s staggered payment. It is apparent from an email of the Commission of 13 November 2017 that that default interest was calculated for each payment at the rate applied by the European Central Bank (ECB) to its principal refinancing operations (‘the ECB refinancing rate’), increased by 3.5 percentage points, in accordance with Article 83(2)(b) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1), and with Article 2(3) of the said decision.
9 By judgment of 7 November 2019, Campine and Campine Recycling v Commission (T‑240/17, not published, EU:T:2019:778), the General Court held that the Commission had erred in finding that the applicants had participated uninterruptedly in the infringement concerned between 23 September 2009 and 26 September 2012, and that the duration of the single and repeated infringement attributable to them was only 14 months, with the result that the multiplier to be applied for the duration of the infringement had to be set at 1.17 (paragraphs 312, 400, 401, 424 and 425 of that judgment). In addition, the Court found that the Commission had erred in granting the applicants, on account of mitigating circumstances connected with their ancillary or minor and peripheral role in the infringement, a reduction of 5% of the basic amount of the fine. Exercising its unlimited jurisdiction, it granted them an 8% reduction of that basic amount (paragraphs 396, 402, 413, 417, 424 and 425 of the said judgment).
10 Consequently, first, the Court annulled Article 1 of the 2017 decision to the extent that it concerned the applicants, in so far as it referred to the period from 10 February 2010 to 10 January 2011 and the period from 4 April 2011 to 7 March 2012.
11 Second, the Court annulled Article 2 of the 2017 decision in so far as it set the amount of the fine imposed on the applicants at EUR 8 158 000.
12 Third, the Court set the amount of the fine imposed on the applicants at EUR 4 275 648, thereby reducing it by EUR 3 882 352.
13 By email of 10 December 2019, the Commission informed the applicants of the reimbursement of the part of the amount of the fine which the General Court had deemed unjustified, namely EUR 3 882 352, together with default interest paid by the applicants in 2017 on that amount, namely EUR 51 584.67. Thus, on 11 December 2019, it reimbursed the applicants a total amount of EUR 3 933 936.67.
14 By email of 18 December 2019, the applicants, relying on the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), requested the Commission to pay them default interest for the period between the provisional payment of the fine and the reimbursement of part of it, on 11 December 2019, that default interest having to be calculated at the ECB refinancing rate increased by 3.5 percentage points.
15 By letter of 13 January 2020, the Commission rejected the applicants’ request, stating that the amount paid on 11 December 2019, calculated in accordance with Article 90(4) of Delegated Regulation No 1268/2012, could not in the case at hand be increased by the interest yielded by the amount of the fine on the bank account into which it had been paid (‘the interest yielded’), since the return on that account during the period in question had been negative. In addition, it stated that the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), against which it had brought an appeal before the Court of Justice, did not constitute an appropriate legal basis to justify the payment of the default interest claimed and had not superseded the obligations arising from the abovementioned provision.
Procedure and forms of order sought
16 By application lodged at the Court Registry on 19 February 2020, the applicants brought the present action.
17 By letter of 4 March 2020, the Commission requested that the proceedings be stayed pending delivery of the final judgment of the Court of Justice in Case C‑301/19 P, Commission v Printeos. By decision of 8 April 2020, the President of the Third Chamber of the General Court, on the basis of Article 69(d) of the Rules of Procedure of the General Court, granted that application. By judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), the Court of Justice dismissed the Commission’s appeal. The proceedings were resumed and the General Court notified the Commission of the time limit within which it had to lodge the defence. The defence, the reply and the rejoinder were lodged on 13 April, 31 May and 13 July 2021, respectively.
18 By letter of 16 February 2022, the parties were requested to submit their observations on the consequences to be drawn from the judgment of 19 January 2022, Deutsche Telekom v Commission (T‑610/19, under appeal, EU:T:2022:15), for the purposes of the resolution of the present dispute and on a possible stay of proceedings until the Court of Justice had delivered final judgment in the appeal, in the event that the Commission intended to bring an appeal against the said judgment.
19 By letters of 10 and 11 March 2022, the parties replied to that request. In those replies, the Commission requested the General Court to stay the proceedings, in accordance with Article 69(b) of the Rules of Procedure, until the Court of Justice had ruled on the appeal that it intended to bring against the judgment of 19 January 2022, Deutsche Telekom v Commission (T‑610/19, under appeal, EU:T:2022:15), whereas the applicants objected to the stay.
20 On 28 March 2022, the Commission brought an appeal against the judgment of 19 January 2022, Deutsche Telekom v Commission (T‑610/19, under appeal, EU:T:2022:15), registered as Case C‑221/22 P. It requested the Court of Justice, inter alia, to give the appeal priority treatment. The Court of Justice did not grant that request. It moreover referred the appeal to the Grand Chamber, the Commission having requested that on the basis of Article 16 of the Statute of the Court of Justice of the European Union.
21 On 26 April 2022, pursuant to Article 27(1) of the Rules of Procedure, the President of the General Court, since the Judge-Rapporteur was prevented from acting, reallocated the present case to another Judge-Rapporteur sitting in the Fourth Chamber of the General Court.
22 On 19 July 2022, the President of the Fourth Chamber of the General Court decided not to stay the proceedings once again, the applicable rules having been clarified by the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), and the Court of Justice not having given priority treatment to the appeal registered as Case C‑221/22 P.
23 The parties presented oral argument and replied to the General Court’s questions at the hearing on 17 November 2022.
24 The applicants claim that the Court should:
– principally, in accordance with Article 268 TFEU and the second paragraph of Article 340 TFEU, read in conjunction with the second paragraph of Article 266 TFEU, order the Commission to pay them compensation corresponding to:
– the default interest due in compliance with the judgment of 7 November 2019, Campine and Campine Recycling v Commission (T‑240/17, not published, EU:T:2019:778), for the period between the date of provisional payment of the fine and the date of its reimbursement, on 11 December 2019, calculated at the applicable ECB refinancing rate, increased by 3.5 percentage points, that is to say, an amount of EUR 300 637.32, or, in the alternative, at a rate of interest that the Court deems appropriate,
– default interest on the compensation referred to in the preceding indent, calculated at the applicable ECB refinancing rate, increased by 3.5 percentage points, that is to say, EUR 28.83 per day, or, in the alternative, at a rate of interest that the Court deems appropriate, that interest having to be calculated from the date of reimbursement, on 11 December 2019, or, in the alternative, from the date of delivery of the Court’s judgment bringing the present proceedings to an end or, in the further alternative, from the date that the Court deems appropriate;
– in the alternative, on the basis of the fourth paragraph of Article 263 TFEU, annul the decision contained in the Commission’s letter of 13 January 2020, or, in the further alternative, its email of 10 December 2019, in which it refused to pay the default interest due in compliance with the judgment of 7 November 2019, Campine and Campine Recycling v Commission (T‑240/17, not published, EU:T:2019:778), and order the Commission to pay damages pursuant to Article 340 TFEU or to adopt appropriate measures to comply with that judgment in accordance with the requirements of the first paragraph of Article 266 TFEU;
– order the Commission to pay the costs.
25 The Commission contends that the Court should:
– dismiss the action as unfounded;
– order the applicants to pay the costs.
Law
The principal claims
The first principal claim
– The applicants’ arguments
26 The applicants seek compensation for the damage which they claim to have suffered as a result of the Commission’s refusal to pay them, following the judgment of 7 November 2019, Campine and Campine Recycling v Commission (T‑240/17, not published, EU:T:2019:778), default interest for the period between the provisional payment of the fine and its partial reimbursement, on 11 December 2019, calculated on the basis of the ECB refinancing rate increased by 3.5 percentage points.
27 Relying on the judgments of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), and of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81) (together, ‘the Printeos case-law’), the applicants submit that the conditions for the incurrence of non-contractual liability by the European Union are fulfilled.
28 First, the Commission’s refusal to pay the applicants default interest on the amount of the part of the fine deemed undue constitutes a sufficiently serious breach of the first paragraph of Article 266 TFEU, which they maintain is a rule of law intended to confer rights on individuals. According to the applicants, that provision leaves the Commission no discretion and establishes an absolute and unconditional obligation for it to pay default interest in compliance with the judgment of 7 November 2019, Campine and Campine Recycling v Commission (T‑240/17, not published, EU:T:2019:778), in order to provide compensation at a standard rate for the loss of enjoyment of the sum corresponding to the amount of the part of the fine deemed undue between the provisional payment of the fine and its partial reimbursement.
29 Second, that sufficiently serious breach of the first paragraph of Article 266 TFEU is the direct cause of the damage suffered by the applicants, which consists in the loss of default interest on the part of the fine deemed undue during the period between the provisional payment of the fine and its partial reimbursement.
30 The applicants also emphasise that the rate of default interest the application of which they are requesting principally, namely the ECB refinancing rate increased by 3.5 percentage points, corresponds to that provided for in Article 2(3) of the 2017 decision in the event of late payment of the fine, which was applied to them at the time of the provisional payment of the fine on account of its having been paid in instalments, and to the rate mentioned in Article 83(2)(b) of Delegated Regulation No 1268/2012 for default interest.
31 With regard to Article 90(4) of Delegated Regulation No 1268/2012, according to which, in a case such as the present one, the Commission is liable only for the interest yielded, it is not clear and should be interpreted in the light of the first paragraph of Article 266 TFEU, which requires the Commission to pay default interest over the relevant period.
32 The applicants thus assess the default interest due to them in compliance with the judgment of 7 November 2019, Campine and Campine Recycling v Commission (T‑240/17, not published, EU:T:2019:778), for the period between the provisional payment of the fine and its reimbursement, at EUR 300 637.32. In the alternative, in the event that the Court rejects that principal claim, they request that default interest be paid to them at a rate of interest that the Court deems appropriate.
33 The Commission disputes those arguments for the reasons that will be set out and examined in paragraphs 54 to 98 below.
– The application of the rules on the non-contractual liability of the European Union to the present case
34 It should be recalled that the second paragraph of Article 340 TFEU provides that, in the case of non-contractual liability, the European Union is, in accordance with the general principles common to the laws of the Member States, to make good any damage caused by its institutions or by its servants in the performance of their duties.
35 According to settled case-law, the European Union may incur non-contractual liability only if a number of conditions are fulfilled, namely the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals, the fact of damage and the existence of a causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties (see judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 32 and the case-law cited).
36 As regards the first condition, the Court of Justice has held that, where amounts are received in breach of EU law, a right of restitution with interest arises under the first paragraph of Article 266 TFEU. That is the case, in particular, where the amounts were received pursuant to an EU measure declared invalid or annulled by the EU judicature (see judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraphs 66 and 67 and the case-law cited).
37 As particularly regards the annulment, by the EU judicature, of an EU measure involving payment of an amount to the European Union, the Court of Justice has held that the payment of default interest constituted a measure giving effect to a judgment annulling a measure, for the purposes of the first paragraph of Article 266 TFEU, in that it was 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 (judgments of 12 February 2015, Commission v IPK International, C‑336/13 P, EU:C:2015:83, paragraph 30, and of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraph 68).
38 It follows that, in not awarding default interest on the principal amount of the fine reimbursed following a judgment annulling or reducing the amount of a fine imposed on an undertaking for infringement of the competition rules, the Commission has disregarded its obligations under Article 266 TFEU.
39 The first paragraph of Article 266 TFEU is a rule of law intended to confer rights on individuals. It establishes an absolute, unconditional obligation on the part of the institution which adopted the annulled act to take, in the interests of the successful applicant, the measures necessary to ensure compliance with the annulling judgment, to which the applicant’s right to full compliance with that obligation corresponds (judgment of 12 February 2019, Printeos v Commission, T‑201/17, EU:T:2019:81, paragraph 55).
40 Moreover, the breach of the first paragraph of Article 266 TFEU is sufficiently serious.
41 In that regard, it must be borne in mind that, according to the settled case-law of the Court of Justice, where an EU institution has only considerably reduced, or even no, discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach of EU law capable of giving rise to the European Union’s non-contractual liability (see judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraph 103 and the case-law cited).
42 In the present case, it is apparent from paragraphs 36 and 37 above that, following the annulment of the 2017 decision, the Commission was required to reimburse the applicants the part deemed undue of the amount of the fine provisionally paid, together with default interest, and had no discretion as to whether to pay such interest. That obligation was all the more necessary since, on 10 December 2019, when the Commission informed the applicants of the reimbursement of the part of the amount of the fine which the Court had deemed unjustified and of the default interest paid by the applicants in 2017 on that amount, it had to be aware of the clarifications provided by the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81). The fact that the Commission had brought an appeal against that judgment was irrelevant in that regard, since, by virtue of Article 60 of the Statute of the Court of Justice of the European Union, the appeal had no suspensory effect.
43 It must therefore be held that the first condition for the incurrence of non-contractual liability by the European Union, mentioned in paragraph 35 above, is fulfilled.
44 As regards the second and third conditions for such liability, it should be recalled that the alleged harm must, first, be actual and certain and, second, flow directly from the unlawful conduct of the institutions (judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 61).
45 In the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39, paragraph 105), the Court of Justice held that, in so far as the Commission had not paid default interest to the undertaking concerned, it was clear that that undertaking had suffered damage equal to the amount of the interest not received.
46 The breach of the obligation to pay default interest under the first paragraph of Article 266 TFEU therefore has a sufficiently direct causal link with the harm consisting in the loss, during the period between the provisional payment of the fine and its partial reimbursement, on 11 December 2019, of default interest on the amount of which the applicants were unduly deprived (see, to that effect, judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraph 105).
47 As regards the determination of the amount of default interest payable by the Commission to an undertaking which has paid a fine annulled by the EU judicature, contrary to what the applicants claim, in paragraph 81 of the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), the Court of Justice clearly decided that the rate to be applied was that provided for in Article 83(2)(a) of Delegated Regulation No 1268/2012, namely the ECB refinancing rate increased by 3.5 percentage points.
48 Indeed, in paragraph 81 of the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), the Court of Justice referred ‘to Article 83 [of Delegated Regulation No 1268/2012], which sets the interest rate for amounts receivable not repaid on the deadline’.
49 Paragraph 2 of that provision, however, sets two rates for the amounts receivable thus described, namely the ECB refinancing rate increased by 8 percentage points where the obligating event is a public supply and service contract referred to in Title V of the same regulation, and the ECB refinancing rate increased by 3.5 percentage points in all other cases.
50 As the case that gave rise to the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), does not concern a supply or service contract, it is clear that it is at the ECB refinancing rate increased by 3.5 percentage points that the Court intended to refer to paragraph 81 of that judgment.
51 Although, ultimately, in the case that gave rise to the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), it was the ECB refinancing rate increased by 2 percentage points that was applied, that was, as follows from paragraph 74 of the said judgment, due to the fact that the applicant had limited its claim to that rate and to the implementation of the non ultra petita rule which prohibited the EU judicature from going beyond that claim.
52 It follows that, in the present case, the Commission is obliged to pay the applicants default interest on the part of the fine deemed undue at the ECB refinancing rate increased by 3.5 percentage points for the period between the provisional payment of the fine and its partial reimbursement, on 11 December 2019.
53 That conclusion cannot be called into question by the Commission’s arguments.
– The Commission’s arguments
54 In the first place, the Commission criticises the relevance to the outcome of the present dispute of the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), on the ground that it relied on paragraph 30 of the judgment of 12 February 2015, Commission v IPK International (C‑336/13 P, EU:C:2015:83), which concerns a case different from the one at issue in the present case.
55 In that regard, it should be recalled that the case which gave rise to the judgment of 12 February 2015, Commission v IPK International (C‑336/13 P, EU:C:2015:83), concerned compliance, pursuant to Article 266 TFEU, with the judgment of 15 April 2011, IPK International v Commission (T‑297/05, EU:T:2011:185), which had annulled a decision by which the Commission had itself annulled, in 2005, a decision taken by it in 1992 to grant financial assistance to the applicant. Therefore, in 2007, the applicant had repaid that assistance to the Commission, together with the default interest that had accrued from 1992 to 2005. The latter judgment having annulled the Commission’s 2005 decision on the ground that the limitation periods had not been complied with, the Commission repaid the applicant the principal amount of the subsidy together with the default interest unduly claimed in 2005. The question then arose as to the rate of interest to be paid by the Commission on that sum in compliance with the said judgment for the period between the recovery of the monies in 2007 and their repayment in 2011.
56 In the judgment of 12 February 2005, Commission v IPK International (C‑336/13 P, EU:C:2015:83), the Court of Justice categorised that interest as default interest and pointed out, in paragraph 30, that payment of such interest constituted a measure giving effect to the judgment of 15 April 2011, IPK International v Commission (T‑297/05, EU:T:2011:185), for the purposes of the first paragraph of Article 266 TFEU, in that it was 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.
57 In paragraph 68 of the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), the Court of Justice deemed it necessary to cite paragraph 30 of the judgment of 12 February 2015, Commission v IPK International (C‑336/13 P, EU:C:2015:83), in so far as, like in the case before it, that judgment concerned the annulment, by the EU judicature, of an EU measure involving payment of an amount of money.
58 It must therefore be held that, in so far as they concern the annulment by the EU judicature of an EU measure involving payment of an amount of money, the cases which gave rise to the judgments of 12 February 2015, Commission v IPK International (C‑336/13 P, EU:C:2015:83), and of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), are identical.
59 Consequently, the compensation claimed in the case at hand by the applicants cannot be refused to them on the ground that, in the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), the Court of Justice relied on paragraph 30 of the judgment of 12 February 2015, Commission v IPK International (C‑336/13 P, EU:C:2015:83), which did not concern an identical case.
60 In the second place, the Commission submits that the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), does not constitute a relevant precedent for the present case because the factual and legal circumstances surrounding that case are different from those of the present case.
61 First, in the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), the General Court annulled the fine imposed in its entirety on the ground of a failure to state reasons, which constitutes a grave procedural illegality and should therefore lead to an annulment ex tunc, that fine then being deemed never to have existed. By contrast, in the present case, following a full examination of the relevant matters of fact and law, the General Court annulled the 2017 decision only in part and merely reduced the fine imposed, which, therefore, was not completely removed from the legal order as though it had never existed.
62 Second, the Commission submits that, in the present case, the General Court, in the exercise of the unlimited jurisdiction conferred on it by Article 261 TFEU read in conjunction with Article 31 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1), substituted it in order to reduce the fine imposed. The reduction of the fine is therefore the result of the General Court’s own assessment of the appropriate amount of the fine, instead of the Commission, with the result that the new fine took effect only on the date of the judgment of 7 November 2019, Campine and Campine Recycling v Commission (T‑240/17, not published, EU:T:2019:778), which can produce only ex nunc effects.
63 According to the Commission, the setting of a new amount of the fine by the General Court in the exercise of its unlimited jurisdiction should give rise not to the award of default interest for late payment from the date of the provisional payment of the fine, but only to the award of interest intended to compensate for the time value of money loss of the part of the fine deemed undue between its provisional payment and its partial reimbursement, pursuant to Article 90(4) of Delegated Regulation No 1268/2012.
64 The Commission further states that, if default interest were applied ex tunc, where, as in the present case, the General Court exercises its unlimited jurisdiction by reducing the fine, the same should apply to the undertaking concerned when the General Court increases the fine decided by the Commission. In that case, that undertaking, too, would have to pay the Commission default interest from the date of the decision imposing the fine, which would not be reasonable.
65 In that regard, it should be pointed out, first of all, that the case-law on which paragraphs 34 to 52 above are based does not draw a distinction according to whether the EU judicature has completely annulled the fine imposed on the applicant or has merely reduced it.
66 Next, it should be noted that although, in the judgment of 7 November 2019, Campine and Campine Recycling v Commission (T‑240/17, not published, EU:T:2019:778), the Court reduced the amount of the fine in the exercise of its unlimited jurisdiction, it partially annulled the provision which found the practice referred to in Article 1 of the 2017 decision to be material in so far as it concerned the applicants (see paragraph 10 above). In addition, the Court annulled Article 2 of that decision in so far as it set the amount of the fine imposed on the applicants at EUR 8 158 000 (see paragraph 11 above).
67 According to the case-law, however, the annulment of a measure by the EU judicature operates ex tunc and thus has the effect of retroactively eliminating the annulled measure from the legal system (see, to that effect, judgments of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraph 30; of 13 December 1995, Exporteurs in Levende Varkens and Others v Commission, T‑481/93 and T‑484/93, EU:T:1995:209, paragraph 46; and of 10 October 2001, Corus UK v Commission, T‑171/99, EU:T:2001:249, paragraph 50).
68 Moreover, it is worth noting that, where the EU judicature substitutes its own assessment for that of the Commission and reduces the amount of a fine in the exercise of its unlimited jurisdiction, it replaces, in the Commission’s decision, the amount initially set in that decision with the amount resulting from its own assessment. That reduction retroactively alters the Commission’s decision. A fine reduced following a fresh assessment by the EU judicature is deemed to have always been that imposed by the Commission. As regards such a reduction, the Commission’s decision is therefore deemed, on account of the substitution effect of a judgment delivered by the EU judicature, to have always been the decision that results from the EU judicature’s assessment (see, to that effect, judgment of 14 July 1995, CB v Commission, T‑275/94, EU:T:1995:141, paragraphs 60 to 65).
69 There is therefore no need to distinguish between the situation referred to in the Printeos case-law, in which the EU judicature completely annulled the fine imposed by the Commission on the ground of insufficient reasoning, and the present case, in which the General Court, exercising its unlimited jurisdiction, reduced the amount of the said fine for reasons relating to the substance of the dispute.
70 Furthermore, it is appropriate to reject the Commission’s argument that, if it were accepted that it must pay default interest from the provisional payment of the fine, including in cases where the General Court reduces the amount of the fine in the exercise of its unlimited jurisdiction, the same should apply to the undertaking whose fine has been increased. According to the case-law, in such a situation, the amount of the increase in the fine is itself payable only from the date on which the judgment is delivered, with the result that the interest which relates thereto can, in accordance with the principle of accessorium sequitur principale, begin to accrue only from that date (judgment of 14 July 1995, CB v Commission, T‑275/94, EU:T:1995:141, paragraph 59). The undertaking whose fine has been increased would therefore not have to pay default interest for the period prior to that increase, meaning that the Commission’s argument is not relevant.
71 In the third place, the Commission considers that, in the absence of a demonstration by the applicants of the existence of any greater financial damage caused by the loss of enjoyment of the monies corresponding to the part of the fine deemed undue, the principles set out in the Printeos case-law do not dictate that it must pay any higher interest than the interest yielded in accordance with Article 90(4) of Delegated Regulation No 1268/2012.
72 In that regard, it should be recalled that, in the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39, paragraphs 70, 75 and 76), the Court of Justice held that a provision of secondary legislation – Article 90(4) of Delegated Regulation No 1268/2012 – had to be interpreted in accordance with Article 266 TFEU and that, where the interest yielded within the meaning of that provision was lower than that of the default interest, or even where there was no interest yielded, the return on the capital invested having been negative, the Commission was required, in order to comply with its obligation under Article 266 TFEU, to pay to the party concerned the difference between the amount of interest yielded and the amount of default interest for the period from the date of payment of the amount in question to the date of its repayment. Contrary to what the Commission claims, the Court of Justice did not make the application of that rule subject to the condition that the applicants demonstrate the existence of any greater financial damage caused by the loss of enjoyment of the monies.
73 Consequently, it must be held that, in the present case, Article 90(4) of Delegated Regulation No 1268/2012 did not relieve the Commission of its obligation, under Article 266 TFEU, to pay the default interest claimed by the applicants.
74 In the fourth place, the Commission submits that the Printeos case-law runs counter to the principles established by the case-law as regards the reimbursement of sums levied in breach of EU law, according to which the interest to be paid at the time of that reimbursement has a compensatory function, intended to compensate for the losses resulting from the unavailability of the sums paid between the time when they were paid by the individual and the time when they were reimbursed. At the hearing, the Commission referred to the judgments of 27 September 2012, Zuckerfabrik Jülich and Others (C‑113/10, C‑147/10 and C‑234/10, EU:C:2012:591); of 18 January 2017, Wortmann (C‑365/15, EU:C:2017:19); and of 28 April 2022, Gräfendorfer Geflügel- und Tiefkühlfeinkost Produktions and Others (C‑415/20, C‑419/20 and C‑427/20, EU:C:2022:306). More specifically, the Printeos case-law contradicts the judgment of 10 October 2001, Corus UK v Commission (T‑171/99, EU:T:2001:249), the order of 4 May 2005, Holcim (France) v Commission (T‑86/03, EU:T:2005:157), and the judgment of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union (C‑447/17 P and C‑479/17 P, EU:C:2019:672), from which it follows that the interest yielded is the only default interest payable in a case such as the present one.
75 In that regard, it should be noted that the Printeos case-law has set out specific rules for the reimbursement of a fine following its annulment by the EU judicature, such that reference must be made only to the case-law that concerns that situation.
76 As far as that case-law is concerned, it should be pointed out that the judgment of 10 October 2001, Corus UK v Commission (T‑171/99, EU:T:2001:249, paragraph 53), the order of 4 May 2005, Holcim (France) v Commission (T‑86/03, EU:T:2005:157, paragraph 30), and the judgment of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union (C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 55), all lay down the rule that, in the case of a judgment annulling or reducing the fine imposed on an undertaking for infringement of the EU competition rules, the Commission is under an obligation, pursuant to Article 266 TFEU or an equivalent provision, not only to repay all or part of the fine paid by the undertaking in question, but also to pay, for the period between the provisional payment of the fine and its reimbursement, default interest.
77 In the judgment of 10 October 2001, Corus UK v Commission (T‑171/99, EU:T:2001:249, paragraphs 52, 53, 60 and 62), while the General Court indicated, relying on the principle of unjust enrichment, that the default interest on the amount repaid had to be calculated by reference to the statutory and judicial rate of interest, the Commission was ordered to pay the applicant the yield from investing the part of the fine deemed undue at an average rate.
78 In the order of 4 May 2005, Holcim (France) v Commission (T‑86/03, EU:T:2005:157), the rate of default interest was not discussed.
79 So far as concerns the amount of interest in the judgment of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union (C‑447/17 P and C‑479/17 P, EU:C:2019:672), the Court of Justice stated, in paragraph 81 of the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), that the reference made in paragraph 56 of the judgment of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union (C‑447/17 P and C‑479/17 P, EU:C:2019:672), referred not to Article 90 of Delegated Regulation No 1268/2012, which does not mention any interest rate, but to Article 83 of that regulation, which sets the interest rate for amounts receivable not repaid on the deadline.
80 In any event, the Printeos case-law is recent and clear in setting out the principles that must be applied in the present case, meaning that there is no need to refer to earlier case-law.
81 In the fifth place, the Commission submits that paying default interest for the period preceding the judgment of 7 November 2019, Campine and Campine Recycling v Commission (T‑240/17, not published, EU:T:2019:778), is illogical, since, in paragraph 55 of the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), the Court of Justice held that an obligation to pay default interest for late payment could arise only where the amount of the principal sum owed was certain or could at least be ascertained on the basis of established objective factors. In the present case, in view of the fact that the reduced amount of the fine could be ascertained only at the point in time when the General Court delivered the judgment of 7 November 2019, Campine and Campine Recycling v Commission (T‑240/17, not published, EU:T:2019:778), the payment of default interest would not be justified for the period preceding that judgment.
82 In the same vein, the Commission maintained at the hearing that it could not be treated on an equal footing with an undertaking which did not pay the fine imposed on it within the period prescribed. Unlike such an undertaking, the Commission is not late in paying.
83 In that regard, it should be noted that, in the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39, paragraphs 78 and 79), the Court of Justice held that, in so far as the applicants’ principal claim, consisting of a claim for restitution linked to the payment of a fine on a provisional basis, was certain and did not require assessment by a court, the interest to be paid by the Commission had to be default interest.
84 Consequently, the applicants’ claim cannot be rejected on the ground that, during the period preceding the judgment of 7 November 2019, Campine and Campine Recycling v Commission (T‑240/17, not published, EU:T:2019:778), the applicants’ claim was not certain.
85 In the sixth place, the Commission submits that the case-law distinguishes between two different types of default interest: default interest of a compensatory nature, intended solely to compensate for the loss of enjoyment of monies on the basis of the principle of unjust enrichment, and punitive default interest, which is intended to penalise late payment of the amounts due. The Commission considers that, where, following a decision of the EU judicature, it must repay a fine with default interest for the period between the provisional payment of that fine and its reimbursement, that interest is in fact compensatory in nature, meaning that that institution must only pay compensation equivalent to the interest yielded.
86 In that regard, it should be noted that, in the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39, paragraphs 55 and 56), the Court of Justice clearly distinguished between default interest, which is designed to compensate at a standard rate for the loss of enjoyment of the monies owed and to encourage the debtor to pay monies owed as soon as possible, and compensatory interest, which 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, and which belongs to general law on the non-contractual liability of the European Union for the purposes of the second paragraph of Article 266 TFEU and Article 340 TFEU.
87 In addition, in paragraphs 78 and 79 of that judgment, the Court of Justice held that, in the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), the General Court had not confused the two types of interest.
88 According to the Court of Justice, in so far as the interest concerned was required on the payment of a fixed amount receivable, namely that of the fine imposed on the applicant by the Commission decision which had been paid on a provisional basis and was to be repaid to it following the annulment of that decision, that interest had to be characterised as default interest. In addition, the Court considered that, in so far as the principal to be repaid to the applicant was certain and did not require assessment by a court, the interest to be paid by the Commission could not be compensatory.
89 In the seventh place, the Commission submits that, if the reduction of the amount of the fine decided upon by the General Court in the exercise of its unlimited jurisdiction were to entail the payment of default interest, greater than the time value of money loss suffered by the amount unduly paid by the applicants, the value of the remaining fine would be eroded, which would impair the effectiveness of the penalty which it imposed, as amended by the General Court, thereby compromising the EU competition rules which it is responsible for enforcing.
90 In that regard, it should be noted that the deterrent effect must apply only to the amounts of fines lawfully imposed. Furthermore, the deterrent function of fines must be reconciled with the principle of effective judicial protection laid down in Article 47 of the Charter of Fundamental Rights of the European Union, compliance with which is ensured by means of the review of legality provided for under Article 263 TFEU, supplemented by the unlimited jurisdiction in respect of the amount of the fine, provided for in Article 31 of Regulation No 1/2003. The EU Courts have the power to perform a review of both the law and the facts, to assess the evidence, to annul the contested decision and to alter the amount of a fine (see, to that effect, judgment of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraphs 62 and 63 and the case-law cited).
91 The deterrent function of fines must also be reconciled with the objectives pursued by the allocation of default interest following the exercise by EU Courts of their powers and, in particular, of their unlimited jurisdiction. According to paragraphs 85 and 86 of the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), those objectives are, first, compensation at a standard rate to the undertaking which has provisionally paid that fine for the loss of use of its monies in the period from the date of provisional payment of the fine to the date on which it is repaid and, second, encouragement to the institution concerned to take particular care when adopting decisions, such as decisions imposing fines, which may entail an obligation for an individual to pay a considerable amount immediately.
92 Consequently, the deterrent function which the fines decided on by the Commission must ensure cannot, in the present case, prevent it from paying the default interest defined in paragraph 52 above.
93 Accordingly, the seventh argument put forward by the Commission must be rejected.
94 Last, in the alternative, should the Court consider that the payment of interest yielded within the meaning of Article 90(4) of Delegated Regulation No 1268/2012 is insufficient to compensate for the loss of enjoyment of monies corresponding to the part of the fine deemed undue and that greater compensation is required, the Commission requests the application by analogy of Article 83(4) of that regulation, namely the ECB refinancing rate increased by 1.5 percentage points. The application of that reduced rate in the case at hand is justified further by the fact that the Commission is an international governmental organisation with a triple A rating and that the provisional payment of the fine is secured during the period in which it is in its possession.
95 In that regard, it should be noted that the rate provided for in Article 83(4) of Delegated Regulation No 1268/2012 concerns the case where the undertaking penalised by the Commission which brings an action against the Commission’s decision does not pay the fine provisionally, but provides a financial guarantee, as is authorised by Article 90(1) of the same regulation. If the action brought by the undertaking concerned is subsequently dismissed, the rate applicable to the fine to be deferred is the ECB refinancing rate increased by 1.5 percentage points.
96 That rate, provided for in Article 83(4) of Delegated Regulation No 1268/2012, cannot, however, be applied to the default interest that must be paid in the present case by the Commission without contravening paragraph 81 of the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), in which the Court of Justice made clear reference, albeit indirectly, to Article 83(2) of Delegated Regulation No 1268/2012 (see paragraphs 47 to 50 above).
97 In any event, in a case such as the present one, the Commission is in a different factual and legal situation from that of an undertaking which, following a Commission decision imposing a fine on it, provides a financial guarantee under Article 83(4) of Delegated Regulation No 1268/2012. Although, in both cases, the payment of interest is justified by the deferred payment of a sum of money, the Commission, when reimbursing a fine annulled by the EU judicature, does not have to bear the significant costs involved in providing a financial guarantee. In those circumstances, a reduction in the rate applicable to the default interest to be paid by the Commission is not justified.
98 The line of argument put forward by the Commission in the alternative must therefore be rejected.
– Conclusion
99 In the light of the foregoing considerations, it is necessary to uphold the applicants’ first principal claim and to order the Commission to pay them compensation in the amount of EUR 300 637.32, an amount which is not contested by the Commission, by way of compensation for the damage caused to them by the sufficiently serious breach of the first paragraph of Article 266 TFEU and which consists in the loss of default interest calculated at the ECB refinancing rate increased by 3.5 percentage points on the part of the fine unduly paid for the period between its provisional payment and its reimbursement, on 11 December 2019.
The second principal claim
100 The applicants seek an increase in the compensation which is the subject of the first principal claim for default interest until full payment (‘capitalised interest’). This second claim constitutes an application of the principle of restitutio in integrum, which is a general principle of law common to the Member States within the meaning of the second paragraph of Article 340 TFEU.
101 That interest is claimed, principally, from 11 December 2019, the date on which the part of the fine deemed undue was reimbursed, in the alternative, from the date of delivery of the General Court’s judgment in the present case and, in the further alternative, from the date that the Court considers appropriate.
102 The applicants request that that increase be calculated, principally, at the ECB refinancing rate increased by 3.5 percentage points and, in the alternative, at another rate that the Court deems appropriate. The rate claimed principally is that which was applied in the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), that which was applied by the Commission when it paid the fine provisionally and that which results from the application by analogy of Article 83(2) of Delegated Regulation No 1268/2012. Calculated in this manner, that interest amounts to EUR 28.83 per day.
103 The Commission contends that that claim should be rejected since the applicants are not entitled to the compensation claimed under the first principal claim. In any event, it considers that that interest is payable only from the date of delivery of the judgment in the present case.
104 In the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39, paragraph 129), the Court of Justice held that capitalised interest was payable from the date on which the application was lodged with the General Court, which corresponded to the claim made by the applicant in the cross-appeal.
105 In the present case, the applicants claim, principally, that that interest should be awarded to them from the date on which the fine was reimbursed, that is to say, 11 December 2019.
106 In so far as the Commission’s obligation to include default interest on the repayment of the fine provisionally paid by the applicants flows directly from Article 266 TFEU and in so far as the lack of enjoyment of the sum corresponding to the default interest between the date of repayment and the date of actual payment of that interest started at the time of the said reimbursement, the applicants must be awarded capitalised interest from that date, that is to say, 11 December 2019.
107 In accordance with Article 99(2)(b) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1), applicable at the time of the reimbursement in the present case by virtue of Article 281(2) and Article 282(1) and (2) of the same regulation, the capitalised default interest awarded to the applicants must be calculated at the ECB refinancing rate increased by 3.5 percentage points.
108 It is therefore necessary to uphold the applicants’ second principal claim and to consider that the compensation referred to in paragraph 99 above must be increased by default interest, starting from the partial reimbursement of the fine, that is to say, on 11 December 2019, and continuing until full payment. The rate of default interest shall be the ECB refinancing rate increased by 3.5 percentage points.
The claim for annulment
109 In the alternative, the applicants seek, on the basis of the fourth paragraph of Article 263 TFEU, annulment of the decision contained in the Commission’s letter of 13 January 2020 or, in the further alternative, in its email of 10 December 2019 for infringement of the first paragraph of Article 266 TFEU and of the second paragraph of Article 296 TFEU.
110 Since the application for annulment is subsidiary to the two principal claims examined above and the General Court has upheld them, there is no need to examine the claim for annulment.
Costs
111 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
112 Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicants.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Orders the European Commission to pay Campine and Campine Recycling compensation in the amount of EUR 300 637.32 for the damage suffered;
2. Increases the compensation referred to in point 1 by default interest, starting from 11 December 2019 and continuing until full payment, at the rate set by the European Central Bank (ECB) for its principal refinancing operations, increased by 3.5 percentage points;
3. Orders the Commission to bear its own costs and to pay the costs incurred by Campine and Campine Recycling.
Gervasoni | Nihoul | Martín y Pérez de Nanclares |
Delivered in open court in Luxembourg on 8 March 2023.
E. Coulon | | M. van der Woude |