Action brought on 10 July 2021 – Feralpi v Commission
(Case T-413/21)
Language of the case: Italian
Parties
Applicant: Feralpi Holding SpA (Brescia, Italy) (represented by: G. Roberti and I. Perego, lawyers)
Defendant: European Commission
Form of order sought
The applicant claims that the General Court should:
(i) in accordance with and for the purposes of the second paragraph of Article 266 TFEU, Article 268 TFEU and the second paragraph of Article 340 TFEU, order the European Union, represented by the Commission, to pay compensation for the damage suffered by the applicant as a result of the Commission’s failure to pay the default interest on the amount of the fine, which it was required to do in order to comply, in accordance with Article 266 TFEU, with the judgment of the Court of Justice of 21 September 2017 annulling a measure, Feralpi v Commission (C-85/15 P, EU:C:2017:709), to be calculated as follows:
(a) an amount constituting the default interest payable on the amount of the fine paid provisionally by the applicant in respect of the period between 4 March 2010 and 26 October 2017, which is EUR 10 250 000.00, calculated using the rate set by the European Central Bank (ECB) for its principal refinancing operations which was in force on 1 March 2010 (namely one per cent), increased by three and a half percentage points, less the bank interest already paid, amounting to EUR 3 204 301.82, or, in the alternative, calculated using the interest rate that the General Court considers appropriate;
(b) an amount constituting the default interest on the sum referred to in point (a) above in respect of the period between 26 October 2017 and the date on which that sum is actually paid or, in the alternative, between 16 March 2021 and the date on which that sum is actually paid, calculated using the interest rate referred to in point (a) above or, in the alternative, using another interest rate that the General Court considers appropriate;
(ii) in accordance with the fourth paragraph of Article 263 TFEU, annul the decision set out in the letter from the Commission’s Directorate-General for Budget of 30 April 2021 (Ref. Ares(2021)2904279) rejecting the request for payment of that default interest submitted by Feralpi Holding SpA on 16 March 2021;
(iii) order the Commission to pay the costs.
Pleas in law and main arguments
In support of the action for compensation, the applicant relies on a single plea in law, in which it claims that the Commission is obliged, on the basis of its non-contractual liability under the second paragraph of Article 266 TFEU, Article 268 TFEU and the second paragraph of Article 340 TFEU, to pay the applicant compensation equal to the amount of default interest payable on the fine, the amount of the fine itself having been repaid to the applicant by that institution in order to comply, in accordance with Article 266 TFEU, with the judgment of the Court of Justice of 21 September 2017 annulling a measure, Feralpi v Commission (C-85/15 P, EU:C:2017:709), plus the default interest payable on that sum.
In support of the action for annulment, the applicant relies on three pleas in law.
First plea in law, alleging a failure to state reasons.
In this regard, the applicant claims that the statement of reasons in the communication from the Commission’s Directorate-General for Budget does not make clear the reasons which led it to find that the applicant’s action was time-barred.
Second plea in law, alleging infringement of Article 266 TFEU and of Article 46 of the Statute of the Court of Justice.
In this regard, the applicant claims that the Directorate-General for Budget’s identification of the date from which the limitation period starts to run is based on a misinterpretation of Article 266 TFEU and of Article 46 of the Statute of the Court of Justice.
Third plea in law, alleging infringement and misapplication of Article 266 TFEU, Regulation No 966/2012 1 and [Delegated] Regulation No 1268/2012. 2
In this regard, the applicant claims that the Directorate-General for Budget referred to a provision which is no longer in force and that the relevant provisions of Regulation No 966/2012 and [Delegated] Regulation No 1268/2012 must, in any case, be applied in a manner consistent with Article 266 TFEU and do not relieve the Commission of the obligation resulting from that provision.
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1 Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1).
1 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).