Case T‑201/17
Printeos, SA
v
European Commission
Judgment of the General Court (Third Chamber, Extended Composition), 12 February 2019
(Non-contractual liability — Competition — Agreements, decisions and concerted practices — Decision finding an infringement of Article 101 TFEU — Fines — Judgment partially annulling the decision — Reimbursement of the principal amount of the fine — Default interest — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Causal link — Damage — Article 266 TFEU — Second sentence of Article 90(4)(a) of Delegated Regulation (EU) No 1268/2012)
1. Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — Cumulative conditions
(Art. 340, second para., TFEU)
(see paragraph 49)
2. Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of a rule of law conferring rights on individuals — Discretion of the institution when adopting the measure
(Art. 340, second para., TFEU)
(see paragraphs 50, 51)
3. Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of a rule of law conferring rights on individuals — Rule of law conferring rights on individuals — Definition — Failure to comply with a judgment annulling a measure — Failure of the Commission to meet its obligation to pay default interest on the reimbursed amount of a cancelled fine — Loss of use of the monies owed — Included
(Art. 266, first para., and Art. 340, second para., TFEU)
(see paragraphs 55-59)
4. EU law — Interpretation — Methods — Interpretation of a measure of secondary law — Interpretation contrary to its wording — Not permissible
(Art. 266, first para., TFEU; Commission Delegated Regulation (EU) No 1268/2012, Art. 90(4))
(see paragraph 61)
5. Non-contractual liability — Conditions — Unlawfulness — Failure of the Commission to meet its obligation to pay default interest on the reimbursed amount of a cancelled fine — Breach of Article 266 TFEU — Sufficiently serious breach of a rule of law conferring rights on individuals
(Art. 266, first para., and Art. 340, second para., TFEU)
(see paragraphs 64-69)
6. Non-contractual liability — Conditions — Causal link — Definition — Failure of the Commission to meet its obligation to pay default interest on the reimbursed amount of a cancelled fine — Breach of Article 266 TFEU — Damage arising from the loss of use of monies owed — Existence of a direct causal link
(Art. 266, first para., and Art. 340, second para., TFEU)
(see paragraphs 70, 71)
Résumé
In the judgment Printeos v Commission (T‑201/17), delivered on 12 February 2019, the General Court, in an action for non-contractual liability under Article 268 TFEU, upheld the applicant’s claim, seeking, primarily, compensation for the damage sustained because of the European Commission’s refusal, following the annulment of a decision ordering the applicant to pay a fine for infringement of Article 101 TFEU, to pay to the applicant default interest on the principal amount of the reimbursed fine.
By its Decision C(2014) 9295 final of 10 December 2014 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (AT.39780 — Envelopes) (‘the decision of 10 December 2014), the European Commission found that the applicant, Printeos, had infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA) by participating in an agreement concluded and implemented on the European stock/catalogue and special printed envelopes market. The Commission accordingly imposed on the applicant, jointly and severally with certain of its subsidiaries, a fine of EUR 4 729 000.
By application lodged at the Registry of the General Court on 20 February 2015, the applicant brought an action pursuant to Article 263 TFEU seeking, as its main claim, partial annulment of the decision of 10 December 2014. On 9 March 2015, the applicant made provisional payment of the fine imposed on it. By judgment of 13 December 2016, Printeos and Others v Commission, (1) the General Court granted the application for partial annulment of the decision of 10 December 2014. The Commission accordingly repaid to the applicant the principal amount of the fine provisionally paid, but refused, however, pursuant to the second sentence of Article 90(4)(a) of Commission Delegated Regulation (EU) No 1268/2012 (2) (‘the contested provision’), to accede to the applicant’s request for payment of the interest on the amount of the fine provisionally paid, since the overall return on the Commission’s investment in financial assets had been negative. The contested provision provides that, where a fine is cancelled or reduced, the amounts unduly collected must, after all legal remedies have been exhausted, be repaid to the third party concerned, together with the interest yielded, it being specified that, if the overall return on the amount of a fine provisionally paid, having been invested in financial assets, has been negative for the relevant period, only the nominal value of the amount unduly collected must be repaid.
After setting out the conditions under which the European Union incurs non-contractual liability, the General Court observes that the applicant alleges, inter alia, a breach of Article 266 TFEU, and accordingly it is seeking to ascertain whether there has been a sufficiently serious breach of that provision. It considers that, in the present case, Article 266 TFEU constitutes a rule of law intended to confer rights on individuals, in so far as it establishes an absolute, unconditional obligation on the part of the institution whose act has been declared void to take, in the interests of the successful applicant, the measures necessary to ensure compliance with the annulling judgment, to which the applicant’s right to full compliance with that obligation corresponds. In the event of the annulment of a decision imposing a fine, case-law has recognised the applicant’s right to be restored to the situation which it was in prior to that decision, which involves, inter alia, reimbursement of the principal sum that was unduly paid because of the annulled decision and the payment of default interest. Unlike the payment of compensatory interest, the payment of default interest constitutes a measure giving effect to a judgment cancelling a fine, for the purpose of the first paragraph of Article 266 TFEU, in that it is designed to provide compensation at a standard rate for the loss of use of monies owed and to encourage the debtor to comply with that judgment as soon as possible (judgment of 12 February 2015, Commission v IPK International, C‑336/13 P, EU:C:2015:83, paragraphs 29 and 30; order of 21 March 2006, Holcim (France) v Commission, T‑86/03, not published, EU:T:2006:90, paragraphs 30 and 31; judgment of 10 October 2001, Corus UK v Commission, T‑171/99, EU:T:2001:249, paragraphs 50, 52 and 53).
Pointing out, next, that the contested provision, given its regulatory context, its clear wording and its express reference to legal remedies and to the annulment of a decision imposing a fine, is intended to give effect to the requirements set out in the first paragraph of Article 266 TFEU, and that it must therefore be interpreted in the light of that provision, the General Court observes, in particular, that Commission Delegated Regulation No 1268/2012 does not define the terms ‘together with the interest yielded’, nor qualify that interest as ‘default’ or late-payment. Therefore, pointing out that the obligation which derives directly from the first paragraph of Article 266 TFEU is designed to provide compensation at a standard rate for the loss of use of monies owed in order to satisfy the principle of restitutio in integrum, the General Court states that, because of the annulment of the decision of 10 December 2014 with retroactive effect, the Commission was necessarily late in reimbursing the principal amount of the fine since the provisional payment thereof.
The General Court concludes that the Commission was required, pursuant to the first paragraph of Article 266 TFEU, in terms of measures to comply with the judgment in Case T‑95/15, not only to reimburse the principal amount of the fine but also to pay default interest in order to provide compensation at a standard rate for the loss of use of that amount during the reference period, and that the Commission enjoyed no discretion in that regard, the infringement of that absolute and unconditional obligation being a sufficiently serious breach of that provision which is capable of rendering the European Union non-contractually liable.
The General Court considers, moreover, that the Commission’s failure to meet its obligation to pay default interest under the first paragraph of Article 266 TFEU has a sufficiently direct causal link with the damage sustained by the applicant, that being equivalent to the loss of that default interest during the reference period, that interest representing compensation at a standard rate for loss of use of the principal amount of the fine during that same period and corresponding to the applicable European Central Bank (ECB) refinancing rate plus 2 percentage points, as claimed by the applicant.
The General Court consequently orders the European Union, represented by the Commission, to redress the damage sustained by the applicant by reason of the failure to pay the sum of EUR 184 592.95 which was due to the applicant as default interest for the period from 9 March 2015 to 1 February 2017, plus default interest, starting from the date of delivery of the present judgment and continuing until full payment, at the rate fixed by the ECB for its main refinancing operations, plus 3.5 percentage points.