ORDER OF THE GENERAL COURT (Eighth Chamber)
19 November 2013 (*)
(Action for annulment – Competition – Agreements, decisions and concerted practices – Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom – Fines – Late-payment interest – Act not amenable to review – Inadmissibility)
In Case T‑42/13,
1. garantovaná a.s., established in Bratislava (Slovakia), represented initially by M. Powell, Solicitor, G. Forwood, Barrister, M. Staroň and P. Hodál, lawyers, and subsequently by K. Lasok QC, J. Holmes, B. Hartnett, Barristers, and O. Geiss, lawyer,
applicant,
v
European Commission, represented by V. Bottka, F. Dintilhac and N. von Lingen, acting as Agents,
defendant,
APPLICATION for annulment of the decision allegedly contained in the Commission’s letter of 21 December 2012 (Case COMP/39.396 − Calcium carbide and magnesium based reagents for the steel and gas industries), whereby the Commission asked the applicant to pay the outstanding amount of the fine imposed by Commission decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement, together with late-payment interest, or to provide the Commission with a bank guarantee covering that amount,
THE GENERAL COURT (Eighth Chamber),
composed of D. Gratsias (Rapporteur), President, M. Kancheva and C. Wetter, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 By Commission decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 − Calcium carbide and magnesium based reagents for the steel and gas industries) (‘the decision of 22 July 2009’), the Commission of the European Communities found, inter alia, that the applicant, 1. garantovaná a.s., had participated in an infringement of Article 81(1) EC and Article 53 of the Agreement on the European Economic Area (EEA) in the markets of calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom, and imposed a fine of EUR 19.6 million on the applicant.
2 It was indicated in Article 2 of the decision of 22 July 2009 that that fine was to be paid within three months of the date of notification of that decision. That article went on to provide:
‘After the expiry of that period, interest shall 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.’
3 On 2 October 2009, the applicant brought an action seeking the annulment of the decision of 22 July 2009 in so far as it concerned the applicant, or, in the alternative, the reduction of the fine which had been imposed on it.
4 In addition, by separate document lodged at the Court Registry on 13 October 2009, the applicant filed an application for the suspension of the operation of that decision.
5 By order of 20 October 2009 in Case T‑392/09 R 1. garantovaná v Commission, not published in the ECR, the President of the Court ordered, on the basis of Article 105(2) of the Rules of Procedure of the Court, the suspension of the operation of Article 2 of the decision of 22 July 2009 in so far as it concerned the applicant, until the order terminating the proceedings for interim relief was made.
6 By order of 2 March 2011 in Case T‑392/09 R 1. garantovaná v Commission, not published in the ECR, the President of the Court suspended the obligation on the applicant to provide the Commission with a bank guarantee in order to avoid immediate recovery of the fine imposed on it by Article 2 of the decision of 22 July 2009, until the earlier of the following two events occurred:
– the maturing, on 11 July 2012, of certain long-term loans made by a subsidiary of the applicant to three other companies;
– the delivery of the judgment bringing the main proceedings to an end;
provided, inter alia, that the applicant pay to the Commission the sum of EUR 2.1 million.
7 On 21 March 2011, the applicant paid to the Commission the abovementioned sum of EUR 2.1 million.
8 On 12 July 2012, the applicant informed the Commission that the long-term loans referred to in the order of 2 March 2011 in Case T‑392/09 R 1. garantovaná v Commission, cited in paragraph 6 above, had not been repaid and that, therefore, it was not in a position to pay the outstanding amount of the fine imposed on it. In addition, it asked the Commission to waive recovery of that fine, pursuant to Article 87(1)(c) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002, laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1, ‘the implementing rules’). The Commission has not yet given a definitive response to that request.
9 By its judgement of 12 December 2012 in Case T‑392/09 1. garantovaná v Commission, not published in the ECR, the Court dismissed the applicant’s action. The latter has brought an appeal against that judgment (Case C‑90/13 P), on which the Court of Justice has not yet adjudicated.
10 By letter of 21 December 2012 (Case COMP/39.396 − Calcium carbide and magnesium based reagents for the steel and gas industries), the Commission asked the applicant to pay the sum of EUR 20 293 586.60, at the latest by 25 January 2013, in order to settle the outstanding amount of the fine imposed on it by the decision of 22 July 2009, together with late-payment interest, or to provide the Commission with a bank guarantee covering the same amount, in the absence of which the Commission would enforce that decision.
11 In annex to that letter was, inter alia, a table indicating how the total amount demanded by the Commission had been calculated. More practically, it can be seen from that table that, for the period from 28 October 2009 to 21 March 2011, the Commission had increased the initial amount of the fine by late-payment interest, calculated at a rate of 4.5%, amounting to EUR 1 232 383.56. It had subsequently deducted the payment of EUR 2.1 million (paragraph 7 above), first from that interest, and then from the initial amount. Thus, the outstanding amount of the fine was reduced to EUR 18 732 383.56. Lastly, it had calculated, at the abovementioned rate, late-payment interest for the period from 22 March 2011 to 25 January 2013 in respect of the outstanding amount of the fine. The sum of that interest amounted to EUR 1 561 203.04. By adding that amount to the outstanding amount of the fine, the Commission arrived at the sum of EUR 20 293 586.60 indicated in its letter.
Procedure and forms of order sought
12 By application lodged at the Court Registry on 28 January 2013, the applicant brought the present action, in which it claims that the Court should:
– annul the Commission’s letter of 21 December 2012 in so far as it applies an interest rate of 4.5% to the periods during which the President of the Court had suspended the operation of the decision of 22 July 2009, sets the outstanding balance at EUR 20 293 586.60 and gives formal notice that the applicant should, at the latest by 25 January 2013, either pay that sum or deposit a bank guarantee covering it;
– order the Commission to pay the costs.
13 By separate document lodged at the Court Registry on 19 April 2013 the Commission raised an objection of inadmissibility under Article 114 of the Rules of Procedure. It claims that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
14 The applicant submitted its observations on the plea of inadmissibility on 17 June 2013.
Law
15 Pursuant to Article 114(1) of the Rules of Procedure, the Court may, if a party so requests, rule on the question of admissibility without considering the substance of the case. In accordance with Article 114(3), unless the Court otherwise decides, the remainder of the proceedings is to be oral. Under Article 114(4), the Court is to decide on the application or reserve its decision for the final judgment.
16 In the present case the Court considers that it has sufficient information from the documents before it and that there is no need to open the oral procedure.
17 By its action, the applicant seeks the annulment of the decision contained, in its view, in the Commission’s letter of 21 December 2012, on the ground that the Commission lacked any legal basis to apply late-payment interest in respect of the period during which the President of the Court had suspended the operation of the decision of 22 July 2009 and that the application of that interest deprived that interim measure of its effectiveness. In addition, it claims that the Commission infringed the principles of the protection of legitimate expectations and of proportionality.
18 The Commission submits that the action is inadmissible, on the ground that the letter of 21 December 2012 did not produce binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position and, accordingly, is not an act against which an action for annulment may be brought, for the purpose of Article 263 TFEU.
19 In that respect, it must be pointed out that not every letter sent by an institution of the European Union constitutes a decision for the purpose of Article 263(4) TFEU of the Treaty and thereby enable the addressee to bring an action for annulment (order in Case C‑25/92 Miethke v Parliament [1993] ECR I‑473, paragraph 10, and order in Case T‑22/98 Scottish Soft Fruit Growers v Commission [1998] ECR II‑4219, paragraph 34). According to the settled case-law of the Court of Justice, an action for annulment must be available in the case of all measures adopted by the institutions of the European Union, whatever their nature or form, which are intended to have legal effects (see Case C‑443/97 Spain v Commission [2000] ECR I‑2415, paragraph 27 and the case-law cited).
20 Therefore, it is only if it were shown that the letter of 21 December 2012 produced binding legal effects such as to affect the interests of the applicant by bringing about a distinct change in his legal position that the applicant would be entitled to bring an action for annulment against it (see, to that effect, Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9, and Case T‑351/02 Deutsche Bahn v Commission [2006] ECR II‑1047, paragraph 35).
21 In that respect, it must be recalled that, under Article 23(2)(a) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), the Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently, they infringe Article 81 EC or Article 82 EC.
22 Moreover, Article 71(4) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1; ‘the financial regulation’), provides that the conditions in which interest on late payment is due to the European Union are to be laid down in the implementing rules, adopted under Article 183 of that regulation.
23 In that respect, Article 86(2) to (5) of the implementing rules, as amended by Commission Regulation (EC, Euratom) No 1248/2006 of 7 August 2006, amending the implementing rules (OJ 2006 L 227, p. 3), provides as follows:
‘2. The interest rate for amounts receivable not repaid on the deadline … shall be the rate applied by the European Central Bank to its principal refinancing operations, as published in the C series of the Official Journal of the European Union, in force on the first calendar day of the month in which the deadline falls, increased by:
(a) seven percentage points where the obligating event is a public supply and service contract referred to in Title V;
(b) three and a half percentage points in all other cases.
3. Interest shall be calculated from the calendar day following the deadline … up to the calendar day on which the debt is repaid in full.
4. Any partial payments shall first cover the interest determined in accordance with paragraphs 2 and 3.
5. In the case of fines, where the debtor provides a financial guarantee which is accepted by the accounting officer in lieu of a provisional payment, the interest rate applicable from the deadline … shall be the rate referred to in paragraph 2 of this Article increased by only one and a half percentage points.’
24 In respect of those provisions, it must be pointed out that, in the decision of 22 July 2009, the Commission found that the applicant had participated in an infringement of the competition rules, imposed on it a fine as a penalty for that infringement and determined the deadline for payment of that fine. However, it did not have to decide and did not decide anything as regards the late-payment interest which would be due in the event of the non-payment of that fine by, at the latest, the deadline determined in that decision. The applicable rate of interest and, consequently, the amount of that interest at a given date arise directly from the relevant provisions, cited in the previous paragraph, without it being necessary for the Commission to determine them and to thereby change the legal position of interested parties, such as the applicant. In the light of those considerations, it must be observed that the last sentence of Article 2 of the decision of 22 July 2009, cited in paragraph 2 above, is merely a reminder of Article 86(2)(b) of the implementing rules.
25 Nor, as regards the interest in question, does the letter of 21 December 2012 contain any decision capable of changing the applicant’s legal position. That letter merely constitutes a notice to comply with the previous decision of 22 July 2009 or, at the least, to provide a bank guarantee capable of ensuring that compliance upon request by the Commission. As the Court confirmed in Case C‑516/06 P Commission v Ferriere Nord ([2007] ECR I‑10685, paragraph 29), such an act cannot be regarded as having produced legal effects binding on, and capable of affecting the interests of, the applicant. In reality, it merely constitutes an act purely preparatory to enforcement (see, to that effect, Commission v Ferriere Nord, paragraph 29).
26 It is true that, in that same letter, the Commission indicated the exact sum that the applicant should pay to settle the outstanding amount of the fine and the late-payment interest added to that amount. Thus, it necessarily adopted a position as regards the manner in which that interest should be calculated and, in particular, as regards the periods during which the amount of the fine should be increased by late-payment interest. It is clear from the application that the applicant’s position on those issues is different. It claims, in essence, that the amount of the fine should not be increased by late-payment interest for the period during which the President of the Court had, as noted in paragraphs 5 and 6 above, suspended the operation of the decision of 22 July 2009 in so far as it concerned the applicant.
27 However, that is not sufficient to give the letter of 21 December 2012 the character of a decision. What matters is not that the Commission, by that letter, adopted a position on an issue which was the subject of a dispute between the parties. The only relevant question is whether it is for the Commission to determine the late-payment interest on the outstanding amount of the fine. For the reasons set out in paragraph 24 above, that question must be answered in the negative. The total amount of the late-payment interest ultimately results from the application of the provisions cited in paragraph 23 above and it was not for the Commission to determine that amount by an act producing binding legal effects. The letter of 21 December 2012 constitutes, in that respect, a mere statement, lacking the nature of a decision, of its position in respect of the interpretation and the appropriate application, in the present case, of the relevant provisions.
28 Moreover, it must be pointed out that the decision of 22 July 2009, as noted in the second paragraph of Article 4 thereof, is enforceable, in accordance with Article 256 EC. The dispute between the parties as to the exact amount of late-payment interest due should, therefore, be resolved in the event of the enforcement of that decision. However, it is clear from the fourth paragraph of Article 256 EC that the courts of the country concerned are to have jurisdiction over complaints that enforcement is being carried out in an irregular manner. It is therefore for those courts, and not for the General Court, to resolve that dispute if necessary, without prejudice to the possibility to refer questions to the Court of Justice for a preliminary ruling, under Article 267 TFEU.
29 It follows from the foregoing considerations that the present action, brought against an act which does not have legal effects, for the purpose of the case-law referred to in paragraph 19 above, must be rejected as inadmissible.
30 That conclusion is not called into question by the applicant’s arguments. It relies on the judgment of the Court in Case T‑275/94 CB v Commission [1995] (ECR II‑2169, paragraphs 28 to 35), claiming that, like the letter of the Commission at issue in that case, the letter of 21 December 2012 contained a new factor, in that it revealed a position taken by the Commission that neither the decision of 22 July 2009 nor the letter of notification of that decision had indicated explicitly, namely, that the amount of the fine imposed on the applicant would be increased by late-payment interest in respect of the period during which the President of the Court had suspended the operation of the decision of 22 July 2009. It follows, according to the applicant, that the letter of 21 December 2012 produced an effect comparable to that produced by the letter of the Commission at issue in CB v Commission, and may be subject to an action for annulment, with the result that the present action must be found to be admissible. The applicant claims, moreover, that the Commission’s arguments intended to prove that CB v Commission concerns a different type of situation are not persuasive.
31 That line of argument cannot be accepted. CB v Commission, cited in paragraph 30 above, must be placed in its specific legislative context, which is different from that of the present case.
32 It must be noted, in that respect, that the Commission’s decision imposing a fine on the applicant in CB v Commission, cited in paragraph 30 above, had been made under the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (OJ 1977 L 356, p. 1), which was repealed by the financial regulation. The financial regulation of 21 December 1977 did not contain any provision analogous to Article 71(4) of the financial regulation (paragraph 22 above). Thus, in contrast to the circumstances of the present case, there were no provisions to the effect that debts resulting from the imposition of a fine were to be increased by late-payment interest and determining the applicable rate.
33 However, in its judgment in Case 107/82 AEG-Telefunken v Commission ([1983] ECR 3151, paragraph 141), the Court of Justice held that there may be a considerable advantage for an undertaking in delaying the payment of a fine as long as possible and that if the view were to be taken that measures designed to offset that advantage were not permissible, that would amount to encouraging manifestly unfounded actions with the sole object of delaying payment of the fine. According to the Court of Justice, it is impossible to imagine that such an effect was intended when the provisions concerning legal remedies against measures adopted by the institutions were drafted.
34 The General Court therefore has held, in the same context, that the power conferred on the Commission, to impose fines on undertakings which infringe the competition rules, covers the power to determine, inter alia, the date on which default interest begins to accrue and the power to set the rate of such interest (CB v Commission, cited in paragraph 30 above, paragraph 47).
35 In other words, in the legislative context of CB v Commission, cited in paragraph 30 above, the rate of late-payment interest by which the fine was to be increased in the event of non-payment by the prescribed deadline was decided by the Commission itself and did not arise automatically, as in the present case, from the application of the relevant provisions. The Court therefore found in CB v Commission, cited in paragraph 30 above (paragraph 32), that the letters referred to in the action for annulment in that case did not merely confirm the measures adopted by the Commission concerning late-payment interest in the decision imposing the fine and in the letter notifying that decision, but also contained a new element in so far as they clearly and explicitly revealed the position taken by the Commission on an issue which arose subsequently, that is to say, whether the provisions concerning late-payment interest adopted in respect of the fine imposed by the Commission decision also applied to the reduced fine fixed by the Court following an action brought by the interested party against the Commission decision (CB v Commission, cited in paragraph 30 above, paragraphs 29 to 33).
36 The issue which arose in CB v Commission, cited in paragraph 30 above, namely whether or not the acts against which the action was brought confirmed an earlier decision, does not arise in the present case, since, as pointed out in paragraph 24 above, there is no earlier Commission decision fixing the method of calculation of the late-payment interest which is, if necessary, to be added to the amount of the fine imposed on the applicant by the decision of 22 July 2009. It is therefore unnecessary to examine whether or not the letter of 21 December 2012 confirms an earlier decision, which does not exist.
37 In any event, it must be noted that CB v Commission, cited in paragraph 30 above, cannot be interpreted in such a way as to call into question the conclusions of the Court of Justice in Commission v Ferriere Nord, cited in paragraph 25 above, which is, moreover, the more recent of the two cases.
38 The applicant also claims that, in the circumstances of the present case, it would be contrary to the interests of the proper administration of justice to hold that the action is inadmissible. In its view, in such a situation, its only means of challenging the Commission’s position in the event of an attempt to enforce the decision of 22 July 2009 would be to bring an action before the competent national court, which would, most likely, make a request for a preliminary ruling to the Court of Justice under Article 267 TFEU. It is therefore, according to the applicant, in the interest of the proper administration of justice to resolve the substance of the dispute between it and the Commission at the present juncture.
39 That argument cannot succeed. It should be noted that the jurisdiction of the General Court is specified in Article 256 TFEU, as further refined in Article 51 of the Statute of the Court of Justice. Pursuant to those provisions, the Court has jurisdiction to rule on an action for annulment only under the conditions laid down in Article 263 TFEU and the related case-law, including the condition concerning the existence of an act intended to produce legal effects. To do otherwise would be to extend its jurisdiction beyond the limits placed on the disputes of which it may take cognizance and encroach on the jurisdiction of the national courts or tribunals over the disputes referred to in Article 299(4) TFEU (see, by analogy, order in Case T‑186/96 Mutual Aid Administration Services v Commission [1997] ECR II‑1633, paragraph 47, and order of 12 December 2005 in Case T‑360/05 Natexis Banques Populaires v Robobat [2005], not published in the ECR, paragraph 12).
40 Accordingly, it must be concluded that the present action is inadmissible and must be dismissed for that reason.
Costs
41 Under the first subparagraph to Article 87(2) 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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby orders:
1. The action is dismissed.
2. 1. garantovaná a.s. shall bear its own costs and pay those incurred by the European Commission.
Luxembourg, 19 November 2013.