Action brought on 9 August 2021 – British Airways v Commission

(Case T-480/21)

Language of the case: English

Parties

Applicant: British Airways plc (Harmondsworth, United Kingdom) (represented by: A. Lyle-Smythe and R. O’Donoghue, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

order the Commission to pay forthwith the Default Interest Amount, corresponding to default interest on the amount of EUR 104,040,000 at the ECB refinancing rate plus 3.5% for the period from 14 February 2011 to 8 February 2016 (less the amount already paid by way of “guaranteed return”) or, alternatively, at such rate as the Court sees fit.

order the Commission to pay compound interest (or, alternatively, default interest) on the Default Interest Amount (or such other amount as the Court orders the Commission to pay in accordance with subparagraph above) at the rate of the ECB refinancing rate plus 3.5%, or such other rate as the Court sees fit.

annul the decision of the Commission refusing to pay the abovementioned sums in its letters dated 30 April and 2 July 2021, and to declare it as void and of no effect ex tunc.

order the Commission to pay the applicant’s legal and other expenses.

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 British Airways is entitled to recover the Default Interest Amount by an action under the first paragraph of Article 266 TFEU, since the Commission was obliged to pay that amount in order to comply with the judgment of the General Court in Case T-48/11.

Second plea in law, alleging that British Airways is entitled, in the alternative, to recover the Default Interest Amount by an action for non-contractual liability under the second paragraph of Article 266, Article 268 and Article 340 TFEU.

Third plea in law, alleging that British Airways is in any event entitled to payment of the compound interest pursuant to the first paragraph of Article 266 or, alternatively, the second paragraph thereof, Article 268 and Article 340 TFEU, on the sum that should have been paid to it on 8 February 2016.

Fourth plea in law, alleging that the Commission’s refusal to pay the Default Interest Amount and compound interest, recorded in its letters of 30 April 2021¹ and 2 July 2021² , is based on an infringement of the Treaties (i.e. Article 266 TFEU) and/or the general principle of EU law, that EU institutions must give restitution following a judgment annulling a measure. The applicant thus alleges that the decision shall be annulled pursuant to Article 263 TFEU.

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¹ Letter from the Commission of 30 April 2021 addressed to the applicant

² Letter from the Commission of 2 July 2021 addressed to the applicant, Ref. ARES(2021)4317994