Provisional text
OPINION OF ADVOCATE GENERAL
RANTOS
delivered on 1 February 2024 (1)
Case C‑70/23 P
Westfälische Drahtindustrie GmbH,
Westfälische Drahtindustrie Verwaltungsgesellschaft mbH & Co. KG,
Pampus Industriebeteiligungen GmbH & Co. KG
v
European Commission
(Appeal – Competition – Agreements, decisions and concerted practices – European market for prestressing steel – Case COMP/38.344 – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Judgment annulling the decision in part and setting a fine in an amount identical to the amount of the fine originally imposed – Decision of the Commission on the outstanding balance of the fine – Due date for payment of a fine, the amount of which has been set by the EU judicature, in the exercise of its unlimited jurisdiction)
I. Introduction
1. By their appeal, Westfälische Drahtindustrie GmbH (‘WDI’), Westfälische Drahtindustrie Verwaltungsgesellschaft mbH & Co. KG (‘WDV’) and Pampus Industriebeteiligungen GmbH & Co. KG (‘Pampus’) (and, together, the ‘applicants’) seek the annulment of the judgment of the General Court of the European Union of 23 November 2022 in Westfälische Drahtindustrie and Others v Commission (T‑275/20, the ‘judgment under appeal’, EU:T:2022:723), by which it dismissed their action seeking, principally, first, annulment, on the basis of Article 263 TFEU, of the European Commission’s letter of 2 March 2020 by which the latter gave them formal notice to pay it the sum of EUR 12 236 931.69 corresponding, in its view, to the outstanding balance of the fine imposed on them on 30 September 2010; secondly, a declaration that the fine had been paid in full on 17 October 2019 by the payment of EUR 18 149 636.24 and, thirdly, an order that the Commission pay WDI the sum of EUR 1 633 085.17, plus interest from the latter date, on account of the Commission’s unjust enrichment. The applicants seek, in the alternative, on the basis of Article 268 TFEU, an order that the Commission pay them the sum of EUR 12 236 931.69, claimed by the Commission from WDI, and a sum equivalent to the overpayment made to that institution, in the amount of EUR 1 633 085.17, plus interest from 17 October 2019 until reimbursement in full of the amount due.
2. This dispute originates from the judgment of 15 July 2015, Westfälische Drahtindustrie and Others v Commission (T‑393/10, the ‘judgment of 15 July 2015’, EU:T:2015:515) in which the General Court, first, annulled in part, inter alia, a Commission decision finding the existence of an infringement of Article 101 TFEU in so far as it imposed a fine on the applicants, on the ground that the Commission had erred in assessing their ability to pay, and, secondly, exercising its unlimited jurisdiction, ordered the applicants to pay a fine identical in amount to the fine imposed on them in that decision. Following the delivery of that judgment, differences of opinion arose as to the date from which interest on that fine should accrue. The applicants maintained that interest should begin to run from the date of delivery of the judgment of 15 July 2015, by which the General Court annulled ex tunc the fine imposed by the Commission and fixed a new separate fine, whereas the Commission argued that interest was payable from the date set out in that Commission decision, namely almost 5 years before the delivery of that judgment.
3. As requested by the Court of Justice, this Opinion will concentrate on the analysis of the first ground of appeal, which essentially revolves around the question of whether, in a case such as the present one, namely where the General Court first annulled a Commission decision in so far as it fixed the amount of the fine imposed and, subsequently, in the exercise of its unlimited jurisdiction, set the amount of that fine at the same level, the exercise by the General Court of that jurisdiction gives rise to a fine which must be characterised as being new and legally distinct from the fine imposed by the Commission, such that it becomes payable on the date of delivery of the General Court’s judgment setting the amount of the fine.
4. The present case therefore provides the Court of Justice with the opportunity, first, to clarify the legal nature of the exercise of the EU Courts’ unlimited jurisdiction under Article 31 of Council Regulation (EC) No 1/2003 (2) and, secondly, to specify the legal consequences of an annulment or variation of a fine imposed by the Commission under Article 23(2) of that regulation, where the EU Courts exercise such jurisdiction, inter alia, in determining the date from which that fine and, secondarily, the default interest, become payable.
II. Legal framework
5. Article 23 of Council Regulation (EC) No 1/2003, entitled ‘Fines’, in paragraphs 2 and 3 thereof, provides:
‘2. The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:
(a) they infringe Article [101] or Article [102 TFEU] …
…
3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’
6. Article 31 of that regulation, entitled ‘Review by the Court of Justice’, provides:
‘The Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment. It may cancel, reduce or increase the fine or periodic penalty payment imposed.’
7. Point 35 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003, (3) entitled ‘Ability to pay’, provides:
‘In exceptional cases, the Commission may, upon request, take account of the undertaking’s inability to pay in a specific social and economic context. It will not base any reduction granted for this reason in the fine on the mere finding of an adverse or loss-making financial situation. A reduction could be granted solely on the basis of objective evidence that imposition of the fine as provided for in these Guidelines would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value.’
III. Background to the dispute
8. The background to the dispute and the content of the contested decision are set out in paragraphs 2 to 26 of the judgment under appeal. For the purposes of the present appeal, it can be summarised as follows.
A. The administrative proceedings
9. By Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (COMP/38.344 – Prestressing Steel) (the ‘PS decision’), the Commission sanctioned several undertakings, including the applicants (prestressing steel suppliers), for their participation in a cartel in the prestressing steel market. The Commission imposed a fine of EUR 56 050 000 on WDI. WDV and Pampus were held jointly and severally liable for EUR 45 600 000 and EUR 15 485 000, respectively. That penalty was imposed in Article 2, first paragraph, point 8 of the PS decision.
10. During the administrative proceedings, the applicants had applied for an exceptional reduction in the fine on the ground of inability to pay, on the basis of point 35 of the 2006 Guidelines.
11. In the PS decision, the Commission did not grant that request.
12. By application lodged at the Registry of the General Court on 14 September 2010, the applicants brought an action for annulment and variation of the PS decision. The case was registered under number T‑393/10.
13. By Decision C(2010) 6676 final of 30 September 2010 (the ‘decision of 30 September 2010’), the Commission corrected some errors in the calculation of fines (4) and amended the PS decision, in particular Article 2, first paragraph, point 8 thereof, thereby reducing the amount of the fines imposed on certain undertakings (together, the ‘contested decision’). (5) The fine imposed on WDI was thus set at EUR 46 550 000. WDV and Pampus were held jointly and severally liable for EUR 38 855 000 and EUR 15 485 000 respectively.
14. The decision of 30 September 2010 established that the fines referred to in Article 2, first paragraph, point 8 of the contested decision had to be paid within three months of the date of notification of the decision of 30 September 2010 and that, on expiry of that period, interest would automatically be payable at the rate applied by the European Central Bank (ECB) to its main refinancing operations on the first day of the month in which the decision of 30 September 2010 had been adopted, plus 3.5 percentage points. It was also established that, in the event of an appeal being lodged by an undertaking which had been fined, that undertaking could cover the fine by the due date by either providing a bank guarantee or, moreover, making a provisional payment of the fine, in accordance with Article 85a(1) of Commission Regulation (EC, Euratom) No 2342/2002. (6)
15. On 3 December 2010, the applicants lodged an application for interim measures in T‑393/10 at the Registry of the General Court seeking, in essence, the suspension of operation of the contested decision until delivery of the judgment in the main proceedings.
16. By letter of 14 February 2011, the Director-General of the Commission’s Directorate-General (DG) for Competition rejected a further request by the applicants for a reduction in the fine on account of their ability to pay (the ‘letter of 14 February 2011’).
17. By order of 13 April 2011, Westfälische Drahtindustrie and Others v Commission (T‑393/10 R, the ‘interim order’, EU:T:2011:178), the President of the General Court partially granted the applicants’ application for interim measures, ordering a stay of the obligation imposed on them to provide a bank guarantee in favour of the Commission to avoid immediate recovery of the fines, on condition that they pay to that institution, provisionally, first, the sum of EUR 2 000 000 before 30 June 2011 and, secondly, monthly instalments of EUR 300 000 on the fifteenth day of each month from 15 July 2011 onwards, until further notice, but not beyond delivery of the judgment in the main proceedings.
18. By judgment of 15 July 2015, the General Court held that the Commission had not erred when it found in the contested decision, with regard to the applicants, that there had been an infringement of Article 101 TFEU. However, the General Court annulled the contested decision in so far as it imposed a fine on the applicants and the letter of 14 February 2011, on the ground that the Commission had erred when assessing their ability to pay. In the exercise of its unlimited jurisdiction, the General Court ordered the applicants to pay a fine in an amount identical to the amount of the fine imposed on them in the contested decision, as is apparent from the operative part of the judgment of 15 July 2015. (7)
19. In compliance with the interim order, WDI had provisionally paid the Commission a total of EUR 16 400 000 during the period from 29 June 2011 to 16 June 2015.
20. After delivery of the judgment of 15 July 2015, the applicants’ lawyers contacted the Commission’s DG Budget in order to reach an amicable agreement on a payment schedule for the fines set out in paragraphs 4 to 6 of the operative part of that judgment. Differences of opinion then arose as to the date from which interest on those fines should accrue. The applicants claimed that interest should start to accrue as from the delivery of the judgment of 15 July 2015, whereas, according to DG Budget, the interest was due from the date set out in the second and third paragraphs of Article 2 of the contested decision, namely, in respect of the applicants, within three months of the notification of the decision of 30 September 2010. That position was reproduced in an email from DG Budget of 12 August 2015, in response to an email from the applicants’ representative of 5 August 2015, and was repeated at a meeting which took place on 4 September 2015 between the Commission and WDI.
21. The judgment of 15 July 2015 was the subject of an appeal brought by the applicants, who had challenged inter alia the fact that the General Court took into account, in the exercise of its unlimited jurisdiction, their ability to pay in 2015 and not in 2010. That appeal was dismissed by order of 7 July 2016, Westfälische Drahtindustrie and Pampus Industriebeteiligungen v Commission (C‑523/15 P, EU:C:2016:541; the ‘order of the Court of Justice’).
22. After their appeal was dismissed, the applicants asked the General Court to interpret the judgment of 15 July 2015 as meaning that the interest applied to the amount of the fine imposed in that judgment was due from the date of delivery of that judgment. In the alternative, the applicants asked the General Court to rectify or supplement that judgment by specifying the date from which the interest began to accrue.
23. By order of 17 May 2018, Westfälische Drahtindustrie and Others v Commission (T‑393/10 INTP, EU:T:2018:293), the General Court declared those claims inadmissible. With regard to the request for interpretation, the General Court recalled that, in order to be admissible, that request had to concern a point decided in the judgment to be interpreted. However, the question of the starting point for the default interest due in the event of deferred payment of the fines imposed on the applicants was not addressed in the judgment of 15 July 2015. According to the General Court, the applicants’ request was for an opinion on the consequences to be drawn from the judgment of 15 July 2015, which did not fall within the scope of an application for interpretation made on the basis of Article 168(1) of its Rules of Procedure. As regards the other two applications, the General Court considered that they had been submitted out of time.
24. On 16 October 2019, WDI informed the Commission, first, that it had already paid EUR 31 700 000 and, secondly, that it intended to pay the balance of the fine due, in capital and interest, which it estimated at EUR 18 149 636.24. For the purposes of that calculation, WDI took into account the interest accrued as from 15 October 2015, thus three months after the delivery of the judgment of 15 July 2015, and applied an interest rate of 3.48%.
25. On 17 October 2019, WDI paid that amount of EUR 18 149 636.24 into the Commission’s bank account, bringing the total amount of payments made since 29 June 2011, in settlement of the fine, to EUR 49 849 636.24.
26. By letter of 2 March 2020 (the ‘contested act’), the Commission expressed its disagreement with the position set out by WDI in its letter of 16 October 2019. The Commission stated that, in accordance with the criteria established in the judgment of 14 July 1995, CB v Commission (T‑275/94, ‘the judgment in CB’, EU:T:1995:141), interest had started to accrue not from the judgment of 15 July 2015, but from the date laid down in the contested decision, namely 4 January 2011, and at the rate of 4.5%. Consequently, the Commission gave WDI formal notice to pay it the sum of EUR 12 236 931.69 corresponding to the outstanding balance, taking into account the value date of 31 March 2020.
B. The procedure before the General Court
27. By application lodged at the Registry of the General Court on 11 May 2020, the applicants applied to the General Court, principally, first, seeking annulment of the contested act and, secondly, seeking a declaration that the Commission should apply the payments made by WDI during the period from 29 June 2011 to 16 June 2015, together with interest on that amount during that period, that is to say, a total amount of EUR 17 820 610, to the fine imposed by the General Court in the context of its unlimited jurisdiction in the judgment of 15 July 2015, with effect from that date, and that the fine was, as a result, fully settled by the payment made by WDI on 17 October 2019 in the amount of EUR 18 149 636.24 and, thirdly, seeking that the Commission be ordered to pay WDI the sum of EUR 1 633 085.17, together with interest accrued from 17 October 2019 until the sum due has been repaid in full, by way of unjust enrichment. In the alternative, the applicants claimed that the European Union, represented by the Commission, should be ordered, first, to pay them compensation equal to the amount claimed in the contested act, that is to say EUR 12 236 931.69, and, secondly, to pay WDI the sum equivalent to the amount of the overpayment received by that institution on 17 October 2019, in the amount of EUR 1 633 085.17, plus interest accrued from that date until full repayment of the amount due.
28. In the judgment under appeal, the General Court first examined the fourth head of claim, concerning a claim for damages based on the unlawfulness of the Commission’s conduct, on the ground that the Commission is claimed to have not correctly enforced the judgment of 15 July 2015, thereby breaching its obligations under the first paragraph of Article 266 TFEU. (8) In support of that claim for damages, the applicants put forward, in essence, four pleas in law. In that regard, the General Court held that all the unlawful conduct complained of was based on the premiss that the fine imposed in the contested decision had not been ‘upheld’ by the judgment of 15 July 2015, but had been annulled ex tunc and replaced by a new fine, which the applicants identify as a ‘court imposed fine’, payable only from the date of delivery of that judgment. (9)
29. After finding the claim for damages admissible, (10) the General Court first found that since the question of the starting point for the default interest due on the amount of the fine was not the subject of any exchange between the parties during the court proceedings and was not explicitly addressed in the judgment of 15 July 2015, either in the grounds or in the operative part of that judgment, (11) it had to be determined whether it can be inferred from that judgment that the fine set by the General Court was legally distinct from that imposed by the Commission in the contested decision. (12) In that respect, in accordance with the case-law resulting from its judgment in CB, the General Court noted that it was already clear from the wording of Article 31 of Regulation No 1/2003 that the unlimited jurisdiction conferred on the Courts of the European Union in relation to competition relates to and is limited to the fine initially imposed by the Commission. Thus, the fine set by the EU Courts does not constitute a new fine which is legally distinct from that imposed by the Commission. (13) Therefore, according to the General Court, where an EU Court 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. The Commission decision is therefore deemed, on account of the substitution effect of a judgment by the EU judicature, to have always been the decision that results from the latter’s assessment. (14)
30. Next, the General Court noted, referring to the order of the Court of Justice, that, in the present case, the Court of Justice held that, although the General Court’s exercise of its review of the legality of the contested decision had led to the annulment of that decision in so far as a fine was imposed on the applicants by the Commission, that circumstance did not in any way mean that the General Court had, for that reason, no power to exercise its unlimited jurisdiction. The Court of Justice also noted that the fact that the General Court had ultimately considered it appropriate to maintain the same amount of fine as that which had been fixed in the contested decision did not affect the propriety of the exercise of its unlimited jurisdiction. (15) The General Court inferred from this, in the present case, that the Commission was entitled to take the view that, since the fine set by the General Court was not a new fine, it had been due since 4 January 2011. (16)
31. According to the General Court, that assessment cannot be called into question by the applicants’ arguments alleging, inter alia, that the General Court had annulled the fine initially imposed before setting a new amount on the basis of matters arising subsequent to the contested decision (17) and that the President of the General Court had ordered, by his interim order, the suspension of the obligation to provide a bank guarantee. In the latter regard, the General Court observed that the adoption of the interim order did not entail suspending the debt from being due, such debt continuing to accrue default interest during the judicial proceedings. (18)
32. The General Court also points out that, where the EU Courts maintain part of or the full amount of the fine in the exercise of their unlimited jurisdiction, the obligation to pay default interest from the outset does not constitute a penalty which is in addition to the fine originally imposed by the Commission. Both the fact that a fine is not legally different when revised by the EU judicature and the principle that actions do not have a suspensory effect preclude the Commission from releasing an undertaking which has not paid that fine immediately and whose action has been upheld in part from its obligation to pay, as from the date on which the fine imposed by the Commission is due, interest on the amount of the fine set by the EU judicature. (19)
33. In the light of those considerations, the General Court held that there was no sufficiently serious breach of the Commission’s obligations under the first paragraph of Article 266 TFEU and rejected the applicants’ claim for damages. In view of the fact that the other heads of claim put forward by the applicants were, in essence, also based on the premiss of an infringement of that provision by the Commission, the General Court dismissed the action in its entirety. (20)
IV. Procedure before the Court of Justice and forms of order sought
34. By their appeal, the applicants request that the Court annul the judgment under appeal and reiterate, in essence, their arguments submitted at first instance. (21) For its part, the Commission asks the Court to dismiss the appeal and order the applicants to pay the costs.
V. Assessment
35. In support of their appeal, the applicants raise three pleas in law, alleging, first, an error of law for failure to correctly enforce the judgment of 15 July 2015 and erroneous and contradictory reasoning in the judgment under appeal, secondly, infringement of Article 266 TFEU on account of the failure to comply with the rule of law resulting from the combination of the annulment effect and the substitutive legal nature and, thirdly, infringement of the right to a fair trial. As requested by the Court of Justice, this Opinion will concentrate on the analysis of the first ground of appeal.
36. It is apparent from the description of the background to the dispute that, like the action at first instance before the General Court, the present appeal before the Court of Justice, and in particular the first ground of appeal, focuses, in essence, on whether the General Court’s exercise of its unlimited jurisdiction in the context of the judgment of 15 July 2015 gave rise to a fine which must be characterised as being ‘new’ and ‘legally distinct’ from the fine which the Commission imposed with the contested decision.
37. More specifically, in the context of this first ground of appeal, the applicants’ argument is essentially that, by the judgment of 15 July 2015, the General Court, first, annulled ex tunc the fine imposed by the Commission, with that annulment having given rise to a debt owed to them, corresponding to the sum provisionally paid by them pursuant to the interim order, plus interest, and, secondly, set a new separate fine, with effect from the date of delivery of the judgment of 15 July 2015, which they refer to as the ‘court imposed fine’, as opposed to the ‘annulled fine’ imposed by the Commission in 2010.
38. In so far as the various complaints raised by the applicants in the context of the first ground of appeal are all based on the premiss that, in essence, the General Court erred in law by holding that the fine imposed by the General Court in the judgment of 15 July 2015 does not constitute a new fine which is legally distinct from that imposed by the Commission by the contested decision, I consider it useful, in the first place, to make preliminary observations on the nature of the unlimited jurisdiction and, in particular, the consequences of its application (A) and, in the second place, to analyse the General Court’s reasoning in the judgment under appeal while examining the various complaints put forward by the applicants in the context of the first ground of appeal of their appeal (B).
A. The unlimited jurisdiction conferred on the Courts of the European Union in relation to the application of the competition rules
39. In the first place, it should be recalled that the system of judicial review of Commission decisions relating to proceedings under Articles 101 and 102 TFEU consists in a review of the legality of the acts of the institutions for which provision is made in Article 263 TFEU, which may be supplemented, pursuant to Article 261 TFEU and Article 31 of Council Regulation (EC) No 1/2003, (22) and at the request of applicants, by the General Court’s exercise of unlimited jurisdiction with regard to the penalties imposed in that regard by the Commission. (23) The unlimited jurisdiction can therefore be exercised only, in a complementary way, in the context of the review of legality provided for in Article 263 TFEU, and does not constitute an autonomous remedy within the meaning of the remedies referred to in Article 256 TFEU. (24)
40. In that regard, I would note that the scope of that judicial review extends to all the elements of Commission decisions relating to proceedings under Articles 101 and 102 TFEU, which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the applicant at first instance and taking into account all the elements submitted by the latter. However, in the context of that review, the EU Courts may in no circumstances substitute their own reasoning for that of the author of the contested act. (25)
41. By contrast, when they exercise their unlimited jurisdiction, the EU Courts are empowered, in addition to reviewing the legality of the penalty, to substitute their own assessment in relation to the determination of the amount of that penalty for that of the Commission, the author of the act in which that amount was initially fixed. Consequently, the EU Courts may vary the contested act, even without annulling it, in order to cancel, reduce or increase the amount of the fine imposed, that jurisdiction being exercised by taking into account all the factual circumstances (de novo review). (26)
42. It follows that if the scope of that unlimited jurisdiction is strictly limited, unlike the review of legality, to determining the amount of the fine, (27) the EU Courts are empowered to exercise their unlimited jurisdiction where the question of the amount of the fine is put before them, (28) and the exercise of that jurisdiction removes the final transfer to the latter of the power to impose penalties. (29)
43. From a methodological point of view, it is therefore only after the EU Court has finished reviewing the legality of the decision referred to it, in the light of the pleas in law submitted to it that, in the event that it does not annul the decision in full, it is to exercise its unlimited jurisdiction in order, first, to draw the appropriate conclusions from its findings with respect to the lawfulness of that decision and, secondly, to establish, according to the information which has been brought to its attention, whether it is appropriate, taking into account all the circumstances of the case, to substitute its own assessment for that of the Commission so that the amount of the fine is appropriate. (30)
44. In the second place, I would point out that in order to satisfy the requirements of Article 47 of the Charter of Fundamental Rights of the European Union (‘Charter’) when conducting a review in the exercise of its unlimited jurisdiction with regard to the fine, the EU judicature is bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine or alter all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement. (31) It is owing to that unlimited jurisdiction that the judicial review provided for by the treaties complies with the requirements of the principle of effective judicial protection set out in Article 47 of the Charter. (32) That exercise involves, in accordance with Article 23(3) of Regulation No 1/2003, taking into consideration, with respect to each undertaking sanctioned, the seriousness and duration of the infringement at issue, in compliance with the principles of, inter alia, adequate reasoning, proportionality, the individualisation of penalties and equal treatment, and without the EU Court being bound by the indicative rules defined by the Commission in its guidelines, even where the latter may give guidance to the EU Courts when they exercise their unlimited jurisdiction. (33)
45. In the third place, I would point out that the exercise of unlimited jurisdiction does not amount to a review of the Court’s own motion, and that proceedings before the Courts of the European Union remain inter partes. With the exception of pleas involving matters of public policy which the Courts are required to raise of their own motion, such as the failure to provide reasons for the contested decision, (34) it is for the applicant to raise pleas in law against that decision and to adduce evidence in support of those pleas. (35) The Court of Justice has held that the absence of an own-motion review of the whole of the contested decision does not contravene the principle of effective judicial protection. Compliance with that principle does not require that the General Court – which is indeed obliged to respond to the pleas in law raised and to carry out a review of both the law and the facts – should be obliged to undertake of its own motion a new and comprehensive investigation of the file. (36) Accordingly, in the exercise of its unlimited jurisdiction, the EU Court may hold that none of the arguments relied on by the parties justifies it making use of that power to reduce the amount of the fines. (37)
46. It is in the light of those general findings that the applicants’ first ground of appeal must be examined.
B. The first ground of appeal
47. By their first ground of appeal – which is divided into a series of complaints, which overlap to a large extent and refer to paragraphs 98, 99, 102, 105, 107, 111, 113, 115, 117, 118, 125 and 127 of the judgment under appeal – the applicants complain, in essence, that the General Court erred in law by failing to enforce its own judgment of 15 July 2015 and by providing an erroneous and contradictory statement of reasons in relation to that judgment, which they argue infringes the principle of res judicata.
48. In so far as all of the applicants’ arguments are based on the premiss that, by the judgment of 15 July 2015, the General Court imposed a new fine, which is legally distinct from that imposed by the Commission in the contested decision, I consider that, in the interests of clarity and the sound administration of justice, it is necessary to examine whether that premiss is correct. If that is not the case, all the complaints put forward by the applicants in the context of the first ground of appeal are therefore unfounded and should be rejected, in that there is no contradiction between the judgment of 15 July 2015 and the judgment under appeal.
1. Whether the premiss of the first ground of appeal is founded
49. At the outset, I feel that it should be noted that the General Court was right in finding, in paragraphs 96 and 97 of the judgment under appeal, that since the question of the starting point for the default interest payable on the amount of the fine was not explicitly addressed in the judgment of 15 July 2015, it was necessary to determine whether it can be inferred from that judgment that the fine set by the General Court was legally distinct from that imposed by the Commission in the contested decision. (38)
50. In that regard, I note that the starting point for the analysis of a possible contradiction between the judgment under appeal and the judgment of 15 July 2015 must necessarily be the content, and more specifically the grounds and operative part of the judgment of 15 July 2015, read also in the light of the order of the Court of Justice. In that regard, the General Court’s summary of the content of the judgment of 15 July 2015 set out in paragraphs 95 and 100 of the judgment under appeal and which forms the basis for its analysis, is also accurate and consistent with the interpretation of the Court of Justice as set out in its order. (39)
51. It should be recalled that, in support of their appeal against the contested decision, which gave rise to the judgment of 15 July 2015, the applicants had raised nine pleas in law, of which only the sixth and ninth are relevant for the purposes of the present appeal. First, the sixth ground of appeal alleged, inter alia, infringement of the principle of proportionality, in that the Commission had not taken account of their inability to pay in the contested decision. Secondly, the ninth ground of appeal alleged incorrect assessment of their ability to pay in the letter of 14 February 2011, annulment of which was also sought by the applicants.
52. By judgment of 15 July 2015, the General Court, upholding those two pleas in law, annulled the contested decision, in so far as it imposed a fine on the applicants, and the letter of 14 February 2011, on the ground that the Commission had erred when assessing their ability to pay, within the meaning of point 35 of the 2006 Guidelines. More specifically, in its review of the legality of the contested decision, the General Court held, in paragraphs 285 to 332 of the judgment of 15 July 2015, that the Commission had made errors in appraising the applicants’ ability to pay, and that those errors were of such a kind, first, to entail the annulment of the contested decision in that it imposed a fine on the applicants, and also of the letter of 14 February 2011, and, secondly, to justify the General Court’s exercise of its unlimited jurisdiction. (40)
53. In the exercise of its unlimited jurisdiction, the General Court found, however, that the applicants were not justified in claiming that they should be granted a reduction of the fine on account of their inability to pay and, accordingly, set the fine at the same amount as that imposed on them in the contested decision. More specifically, in paragraphs 333 to 358 of the judgment of 15 July 2015, the General Court, itself applying the 2006 Guidelines, held, on the basis of the evidence adduced by the applicants concerning their financial situation, as it had evolved after the adoption of the contested decision, that the applicants were not justified in claiming that they should be granted a reduction of the fine on account of their inability to pay, for reasons similar to those envisaged in point 35 of those 2006 Guidelines, and that, accordingly, the applicants should be ordered to pay a fine of an amount identical to the amount of the fine imposed in the contested decision. (41)
54. In that regard, it seems to me important to point out that although the General Court merely upheld the pleas for annulment relating to the appraisal of the applicants’ ability to pay, all the pleas relating to the legality of the infringement and the amount of the fine imposed accordingly were rejected. In other words, the General Court had found no reason to regard as inappropriate the amount of the fines imposed on the applicants as set out in the first subparagraph of Article 2(8) of the contested decision, (42) on the basis of the first four pleas in law, the examination of which had not revealed any error of such a kind as to vitiate the contested decision with illegality. It was also for that reason that the General Court set a fine of an amount identical to the amount of the fine previously imposed on the applicants by the Commission in the contested decision. Furthermore, it is recalled that the application of point 35 of the 2006 Guidelines is the last factor taken into account in determining the amount of the fines imposed for a breach of the competition rules. (43)
55. As regards the operative part of the judgment of 15 July 2015, admittedly, the General Court, in paragraph 2 thereof, first annulled Article 2, first paragraph, point 8 of the contested decision, which imposed a fine on the applicants, and, secondly, in paragraphs 4 to 6 of that operative part, set the amounts of the fine, which corresponded to those of the contested decision. However, to consider that choice as indicative of a desire of the General Court to establish a new fine that is legally distinct from that fixed by the Commission would be overly formalistic and would, in my view, be inconsistent with the fundamental rule, derived from settled case-law, according to which the operative part of a judgment must be read in the light of the reasons which led to it and which constitute its essential basis. (44) Furthermore, there are many examples in which the General Court has annulled the operative part of a Commission decision relating to the fine, while subsequently fixing the new amount in the exercise of its unlimited jurisdiction. (45) As the Commission points out, in certain cases, such as in the judgment of 15 July 2015, the General Court first annuls the article of the Commission decision fixing the fine and then determines the fine again in the operative part of that judgment.(46) In other cases, the General Court merely varies the fine without annulling the relevant article of the Commission decision. (47) Although that lack of consistency in the General Court’s practice is unfortunate and may, from a purely formal point of view, constitute a source of confusion, in reality, since the unlimited jurisdiction, in accordance with the case-law resulting from the judgment in CIB, ‘relates to and is limited to the fine initially imposed by the Commission’, (48) it would not, in principle, have any impact in terms of legal consequences. (49)
56. In the light of the foregoing, I find that the premiss of the applicants’ arguments set out in the context of the first ground of appeal, according to which, by the judgment of 15 July 2015, the General Court imposed a new fine legally distinct from that imposed by the Commission in the contested decision, is not apparent from the grounds of that judgment and is fundamentally incorrect.
57. That finding is sufficient, in my view, to dismiss all of the applicants’ arguments as unfounded, without it being necessary to examine the various complaints of the first ground of appeal in greater detail.
58. However, if the Court of Justice finds it necessary to address the various arguments put forward by the applicants, in the alternative, and for the sake of completeness, I propose that they be dismissed on the basis of the following analysis.
2. The various complaints of the first ground of appeal
59. In the first place, the applicants claim that, in paragraph 98 of the judgment under appeal, the General Court made the incorrect finding that ‘the fine set by the EU Courts does not constitute a new fine which is legally distinct from that imposed by the Commission (see, to that effect, [judgment in CB], paragraphs 58 and 60)’. They claim that finding is incorrect because it does not provide an answer to the question of the variation and substitution effect of the judgment of 15 July 2015 with regard to the fine annulled by the contested decision.
60. In support of their argument, the applicants claim that the General Court was wrong to refer to paragraphs 58 and 60 of the judgment in CB, which differs from the judgment of 15 July 2015. Contrary to the judgment in CB, in the judgment of 15 July 2015 the General Court, on the one hand, ordered payment of the ‘court imposed fine’ on the basis of ‘new facts’ and, on the other hand, first annulled the fine imposed in its entirety from the outset (ex tunc reduction) before establishing the ‘court imposed fine’ and therefore did not choose to confirm or merely (retroactively) reduce the fine imposed under the Commission’s initial decision.
61. In my view, those arguments cannot succeed.
62. First, as stated in points 52 to 56 of this Opinion, in the judgment of 15 July 2015, the EU judicature did not impose a fine instead of the fine imposed by the Commission, which, moreover, it was not in a position to do, but merely ‘varied’ the fine initially fixed in the contested decision. In other words, the fine imposed by the Commission in the contested decision and the fine fixed in the judgment of 15 July 2015 following the review carried out by the General Court are identical in fact and in law.
63. Secondly, I would point out that, in paragraphs 58 to 60 of the judgment in CB, the General Court held that the unlimited jurisdiction conferred on the EU judicature in relation to the application of the competition rules ‘relates to and is limited to the fine initially imposed by the Commission’ (paragraph 58), that that court ‘does not have power to impose a fine’, but may ‘solely […] rule on fines set by decisions of the Commission’ (paragraph 59) and that, accordingly, it is not competent to ‘replace the fine imposed by the Commission by a new, legally distinct fine’ (paragraph 60). Those general statements, which were made in 1995 by the Court of First Instance, although never endorsed by the Court, seem to me to be still valid today. (50)
64. Thirdly, as regards the argument that, in the judgment in CB, the General Court confirmed the part of the fine in question after re-evaluating the same facts as those underlying the contested decision, whereas, in the judgment of 15 July 2015, the General Court decided to confirm the same fine also on the basis of an examination of new facts, the distinction made by the applicants is legally irrelevant. As is clear from settled case-law, the Court exercising unlimited jurisdiction must, in principle and subject to examination of the evidence submitted to it by the parties, take account of the legal and factual situation that prevails on the date on which it makes its determination where it considers it proper to exercise its power to vary a decision. (51)A fortiori, this means that the Court exercising unlimited jurisdiction may take into account not only earlier elements which do not appear in the contested act, (52) but, where applicable and exceptionally, also matters arising subsequent to the adoption of the decision. As the Court held in paragraph 43 of the order of the Court of Justice, the EU Courts are entitled to take into account, in order to complete the exercise of their review as to legality, all the factual circumstances which they consider to be relevant, whether they be prior to or subsequent to the contested decision. (53)A fortiori, this applies where, as in the present case, the exercise of unlimited jurisdiction relates to the assessment of the ability to pay on the part of the undertaking concerned. As the Court has held, if the EU Courts were unable to assess that capacity by taking into account the prevailing factual situation at the time at which they give their ruling, they could be required to refuse or to grant a reduction or a cancellation of a fine owed or not owed, in such a way as to cause a disadvantage or provide an unfair competitive advantage for that undertaking. (54) Furthermore, I would like to point out that assessing the inability to pay, within the meaning of point 35 of the 2006 Guidelines, involves analysing the ‘specific social and economic context’ at the time of imposing a fine in order to assess whether that fine ‘would irretrievably jeopardise the economic viability’ of the undertaking concerned. Such a control is therefore, by its nature and by its object, prospective and may require, exceptionally, taking into account elements subsequent to the decision imposing the fine.
65. In the second place, the applicants submit that the reasoning of the judgment under appeal is contradictory as regards the substitution effect of the judgment of 15 July 2015. More specifically, in paragraph 99 of the judgment under appeal, the General Court held that ‘where an EU Court 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’. The applicants submit that, while that view might seem to be a correct starting point, the General Court should have reached the following findings: (i) in the judgment of 15 July 2015, the General Court entirely substituted its own assessment for that of the Commission; (ii) on the basis of that assessment, it reduced the amount of the annulled fine under its unlimited jurisdiction by way of annulment and explicit offsetting of the payments already made; and (iii) the General Court replaced the annulled fine with the court imposed fine thus amended. They argue that, instead of reaching those findings, the General Court considered, also in paragraph 99 of the judgment under appeal, that ‘the Commission’s decision is therefore deemed, on account of the substitution effect of a judgment by the EU judicature, to have always been the decision that results from the latter’s assessment (see, to that effect, [judgment in CB], paragraphs 60 to 65 and 85 to 87)’.
66. In that regard, it must be stated that although the General Court, by way of the judgment of 15 July 2015, initially annulled the contested cartel decision, in so far as it set the amount of the fine imposed on the applicants and, subsequently, fixed the amount of the fine at the same level, in the exercise of its unlimited jurisdiction, for the reasons set out in points 53 and 54 of this Opinion, and as the Court of Justice held in paragraphs 38 and 40 of its order, to which paragraph 101 of the judgment under appeal refers, there was no radical variation or ‘novation’ of the fine on that occasion.
67. In the third place, the applicants maintain that the amendment of the fine prevents it from being due retroactively from 4 January 2011. They therefore dispute the General Court’s statement, set out in paragraph 102 of the judgment under appeal, that ‘…, in the present case, the Commission was entitled to take the view that, since the fine set by the General Court was not a new fine, it had been due since 4 January 2011’. In their view, the complete cancellation and disappearance of the fine would have prevented it from being due retroactively, since the deferral of the payment of the court imposed fine is unequivocally evident from paragraphs 302 and 356 of the judgment of 15 July 2015. During the period between the Commission decision and the delivery of the judgment of 15 July 2015, they submit that the Commission had no corresponding claim.
68. By that argument, the applicants merely construct a line of argument which, however, also proves to be ineffective because it is based on a misinterpretation of the judgment of 15 July 2015. Accordingly, the applicants are wrong in submitting that, in the present case, the substitution effect of the fine set by the General Court in the contested judgment had an ex nunc effect and that the General Court thus exceeded its unlimited jurisdiction in relation to penalties. In that regard, it is sufficient to note that, in its order, the Court of Justice held that the fine imposed by the General Court was not a new fine. (55) Moreover, as has been pointed out in points 53 and 54 of this Opinion, the General Court did not find the amount of the fine imposed on the applicants as set out in Article 2(8) of the contested decision to be inappropriate, on the basis of the first four pleas in law, the examination of which had not revealed any error of such a kind as to vitiate the contested decision with illegality, which justified the imposition of a fine identical to that of the fine which the Commission had previously imposed on the applicants in the contested decision.
69. In the fourth place, the applicants claim that the General Court erred in its interpretation of the judgment in Trioplast (paragraphs 15 and 56 to 62) when it refers to this judgment, in paragraph 105 of the judgment under appeal, to support the finding, that: ‘… a substitution effect similar to that referred to in paragraph 99 above has already been recognised where there is a decision in which the Court had first annulled the limit up to which a parent company had been held jointly and severally liable for payment of a fine imposed by the Commission and then sets that amount again in the exercise of its unlimited jurisdiction’. They assert that that case-law is not relevant and shows that no precedent, through which the retroactive start date for the rate of interest has already been definitively clarified in the event of a combination of an annulment and a decision imposing a penalty, has been recognised by the EU Courts.
70. However, like the Commission, and in the light of the case-law cited in point 55 of this Opinion, I find that the judgment in Trioplast is relevant as regards the start date for the interest rate. In that judgment, the General Court first annulled in the operative part of the judgment the amount of the fine for which a parent company was held jointly and severally liable, in the same way as it did in the present case, before setting it once more in the exercise of its unlimited jurisdiction. The fine originally imposed by the Commission was thus clearly replaced ex tunc. Since the circumstances of the Trioplast case are therefore entirely comparable to those of the present case, the fourth complaint can also be dismissed.
71. In the fifth place, the applicants claim that the General Court incorrectly assessed the applicants’ new ability to pay, established in 2015, and its consequences for the amount of the ‘court imposed fine’. More specifically, in paragraph 107 of the judgment under appeal, the General Court confirms that ‘in its review of the lawfulness of the decision, the Court merely held that the Commission had made errors when assessing the applicants’ ability to pay, but did not hold that no fine could be imposed on them in 2010 and 2011.’, while adding, in paragraph 109 of the judgment under appeal, that ‘… the existence of some ability to pay on the part of the applicants in 2010 and 2011 was established by the Court in the judgment of 15 July 2015, contrary to the applicant’s submissions’. The applicants claim that there is nothing to indicate that, in the judgment of 15 July 2015, the General Court decided, because of some ability to pay, to maintain its initial decision on the fine and thus to confirm the inappropriate amount of the annulled fine.
72. However, contrary to the appellants’ submissions, I note that, in paragraphs 108 and 109 of the judgment under appeal, the General Court simply explains, in response to one of the arguments put forward by the applicants and referring to paragraph 346 of the judgment of 15 July 2015, that in that judgment it had found that, on the basis of the provisional payment plan set out in the interim order, the applicants had already been able to pay a sum of more than EUR 15 000 000 since 2011, which made it possible to establish the existence of ‘some ability to pay’ on the part of the applicants in 2010 and 2011.
73. In the sixth place, the applicants criticise the explanation given by the General Court in paragraph 125 of the judgment under appeal, according to which ‘the order that the Commission pay half of the costs incurred by the applicants … can be explained by the annulment of Article 2, first paragraph, point 8 of the contested decision’. The applicants submit that the adopted operative part as to the costs ‘emphasises the materially favourable decision of the General Court as regards the fine substantially amended in [their] favour by the judgment of 15 July 2015’.
74. It must be noted that that argument is based on the incorrect premiss of a link between an alleged variation of the fine initially annulled and the taxation of costs, and must therefore be rejected as ineffective.
75. In the seventh and last place, the applicants challenge the finding in paragraph 127 of the judgment under appeal that ‘the obligation to pay default interest from the outset does not constitute a penalty in addition to the fine initially imposed by the Commission, which would have a dissuasive effect on the exercise of the right to bring an action’.
76. In that regard, it should be borne in mind, first, that the obligation to pay default interest in the event of non-payment of a fine within the time limit is a direct consequence of the enforceability of Commission acts imposing a pecuniary obligation, as defined in Article 299 TFEU. Enforcement of those acts may be suspended only by a decision of the Court of Justice. The obligation to pay default interest is thus intended to ensure the effectiveness of fines imposed by the Commission in the field of competition law and to encourage those to whom they are addressed to pay them within the time limits prescribed. The obligation to pay default interest from the outset does not therefore constitute a penalty in addition to the fine initially imposed by the Commission.
77. Secondly, by its judgment of 15 July 2015, the General Court neither annulled the provisions on default interest contained in the cartel decision nor set a new deadline for payment or a new rate of default interest. On the contrary, in its order of 17 May 2018, in Westfälische Drahtindustrie and Others v Commission, (56) the General Court expressly confirmed that the judgment of 15 July 2015 had no bearing on the issue of default interest. The applicants cannot therefore validly claim that no default interest was due from the time of adoption of the Commission decision.
C. Summary
78. In the light of the foregoing considerations, and in so far as this Opinion focuses solely on the first ground of appeal, I propose that the Court reject that plea as unfounded.