Action brought on 28 January 2013 - 1. garantovaná v Commission
(Case T-42/13)
Language of the case: English
Parties
Applicant: 1. garantovaná a.s. (Bratislava, Slovakia) (represented by: M. Powell, Solicitor, G. Forwood, Barrister, M. Staroň and P. Hodál, lawyers)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
Annul the Commission's letter of 21 December 2012, in Case COMP/39.396 - Calcium Carbide, in so far as it:
Applies an interest rate of 4.5% to the periods during which the Court had i) suspended the operation of Article 2 of the Commission Decision C(2009) 5791 final of 22 July 2009 in Case COMP/39.396 − Calcium carbide and magnesium based reagents for the steel and gas industries, as regards the applicant, and ii) suspended the obligation on the applicant to provide a bank guarantee in order to avoid the immediate recovery of the fine imposed by Article 2 of that decision;
Sets the balance outstanding at 25 January 2013, covering the fine and late payment interest, at EUR 20,293,586.60;
Gives formal notice that the applicant should, at the latest by 25 January 2013, either make a provisional payment of EUR 20,293,586.60 or deposit an acceptable financial guarantee covering this amount.
Order the defendant to pay the costs of these proceedings.
Pleas in law and main arguments
In support of the action, the applicant relies on four pleas in law.
First plea in law, alleging that the Commission lacked any legal basis to impose interest in respect of the period covered by the Ex Parte Interim Measures Order, as the Ex Parte Interim Measures Order of 20 October 2009 suspended the operation of Article 2 of Decision C(2009) 5791 in so far as it concerned the applicant. As such, the fine did not become "due" within the meaning of Article 79(c) of the Implementing Rules. In accordance with the principle of accessorium sequitur principale, interest relating to the fine can only begin to accrue from the date on which the fine is due.
Second plea in law, alleging that, as regards the period covered by the Interim Measures Order, the application of the penalty interest rate of 4.5% breached the applicant's legitimate expectations, as the Interim Measures Order of 2 March 2011 suspended the obligation on the applicant to provide a bank guarantee in order to avoid the immediate recovery of the fine imposed on it by Article 2 of Decision C(2009) 5791. This put the applicant in the same position it would have been in, had it provided the bank guarantee. The applicant was therefore entitled to rely on a legitimate expectation, created by the Commission's letter of 24 July 2009 notifying Decision C(2009) 5791, that interest on the fine would be payable at the rate set down in Article 86(5) of the Implementing Rules.
Third plea in law, alleging that the application of the penalty interest rate of 4.5% to the periods covered by the interim measures orders deprives the interim measures orders of their practical effect, as the rationale for the two interest rates contained in Articles 86(2)(b) and 86(5) of the Implementing Rules is to incentivise undertakings to provide a bank guarantee, and, conversely, to penalise those that refuse to pay the fine when it becomes due, or to provide an appropriate bank guarantee. The applicant should not be penalised by the imposition of a punitive rate of interest for not providing a bank guarantee, in circumstances when i) the Court has suspended the operation of the fine, and ii) has held that it was objectively impossible for the applicant to provide a bank guarantee.
Fourth plea in law, alleging that that the application of the penalty interest rate of 4.5% to the periods covered by the interim measures orders violates the principle of proportionality. It would be disproportionate to penalise the applicant through the application of interest at the rate provided for in Article 86(2)(b) of the Implementing Rules, in circumstances where i) the fine is not enforceable, and ii) the EU judicature has established that it cannot pay the fine or provide a suitable bank guarantee.
____________1 - 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), as amended.