# C_2016059EN.01002301.xml

| 15.2.2016 | EN | Official Journal of the European Union | C 59/23 |
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15.2.2016

EN

Official Journal of the European Union

C 59/23

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Action brought on 19 November 2015 — Guardian Europe v European Union

(Case T-673/15)

(2016/C 059/26)

Language of the case: English

Parties

Parties

Applicant: Guardian Europe Sàrl (Bertrange, Luxembourg) (represented by: F. Louis, lawyer, and C. O’Daly, Solicitor)

Applicant:

Defendants: European Union represented by the European Commission and the Court of Justice of the European

Defendants:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | (1) order that the applicant be compensated for the following damages caused as a result of the General Court’s failure to rule within a reasonable time: (a) guarantee costs of EUR 936 000; (b) opportunity costs/loss of profit of EUR 1 671 000; and (c) non-pecuniary losses of EUR 14,8 million; |
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(1) order that the applicant be compensated for the following damages caused as a result of the General Court’s failure to rule within a reasonable time: (a) guarantee costs of EUR 936 000; (b) opportunity costs/loss of profit of EUR 1 671 000; and (c) non-pecuniary losses of EUR 14,8 million;

| — | (2) award interest on the amounts sought under (1) above, in so far as relevant, at the average rate applied by the European Central Bank at the relevant time to its main refinancing operations, increased by two percentage points; |
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(2) award interest on the amounts sought under (1) above, in so far as relevant, at the average rate applied by the European Central Bank at the relevant time to its main refinancing operations, increased by two percentage points;

| — | (3) order that the applicant be compensated for damages caused as a result of the Commission and the General Court’s infringement of the principle of equal treatment namely the following amounts: (a) guarantee costs of EUR 1 547 000; (b) opportunity costs/loss of profit of EUR 9 292 000; and (c) non-pecuniary losses of EUR 14,8 million; |
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(3) order that the applicant be compensated for damages caused as a result of the Commission and the General Court’s infringement of the principle of equal treatment namely the following amounts: (a) guarantee costs of EUR 1 547 000; (b) opportunity costs/loss of profit of EUR 9 292 000; and (c) non-pecuniary losses of EUR 14,8 million;

| — | (4) award interest on the amounts sought under (3) above, in so far as relevant, at the average rate applied by the European Central Bank at the relevant time to its main refinancing operations, increased by two percentage points; and |
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(4) award interest on the amounts sought under (3) above, in so far as relevant, at the average rate applied by the European Central Bank at the relevant time to its main refinancing operations, increased by two percentage points; and

| — | (5) order the defendants to pay the applicant’s costs relating to its application. |
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(5) order the defendants to pay the applicant’s costs relating to its application.

Pleas in law and main arguments

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law.

| 1. | First plea in law, alleging that the applicant has a right to damages against the European Union under Article 268 and Article 340 second paragraph of the TFEU due to the General Court’s infringement of its rights under Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms to a judgment within a reasonable time. The failure to rule within a reasonable time period caused the applicant three types of loss between 12 February 2010 and 27 September 2012: (1) increased costs related to a bank guarantee for the amount of the fine that the applicant did not immediately pay to the Commission following the adoption of decision No C(2007)5791 final of 28 November 2007 in Case COMP/39165 — Flat glass; (2) opportunity costs because the low rate of interest on the amount of the fine belatedly returned to the applicant following the Court of Justice’s judgment in 2014 was much lower than the potential return that the applicant could have achieved if, instead of paying this money to the Commission in 2008, it had invested it in its business; and (3) non-pecuniary damages due to the decision wrongly having imposed the highest fine on the applicant in November 2007 and, due to the General Court’s failure to adjudicate within a reasonable time, this only being belatedly remedied by the Court of Justice in November 2014. |
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1.

First plea in law, alleging that the applicant has a right to damages against the European Union under Article 268 and Article 340 second paragraph of the TFEU due to the General Court’s infringement of its rights under Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms to a judgment within a reasonable time. The failure to rule within a reasonable time period caused the applicant three types of loss between 12 February 2010 and 27 September 2012: (1) increased costs related to a bank guarantee for the amount of the fine that the applicant did not immediately pay to the Commission following the adoption of decision No C(2007)5791 final of 28 November 2007 in Case COMP/39165 — Flat glass; (2) opportunity costs because the low rate of interest on the amount of the fine belatedly returned to the applicant following the Court of Justice’s judgment in 2014 was much lower than the potential return that the applicant could have achieved if, instead of paying this money to the Commission in 2008, it had invested it in its business; and (3) non-pecuniary damages due to the decision wrongly having imposed the highest fine on the applicant in November 2007 and, due to the General Court’s failure to adjudicate within a reasonable time, this only being belatedly remedied by the Court of Justice in November 2014.

| 2. | Second plea in law, alleging that the applicant has a right to damages against the European Union under Article 268 and Article 340 second paragraph of the TFEU because the European Commission and the General Court both manifestly breached the principle of equal treatment and discriminated against the applicant. Decision No C(2007)5791 final of 28 November 2007 in Case COMP/39165 — Flat glass, wrongly excluded captive sales when calculating the fines imposed on the decision’s other addressees and failed to rectify the ensuing discrimination against the applicant, which as a non-integrated producer did not have any captive sales. The General Court compounded the Commission’s mistake by upholding the decision’s exclusion of these captive sales. This error was only corrected by the Court of Justice in November 2014 when it reduced the decision’s fine by EUR 44,4 million. However, this reduction did not compensate for the damage to the applicant from November 2007 to November 2014, which was caused by it wrongfully having received an inflated fine, which suggested that it bore a particular responsibility for the flat glass cartel and also resulted in additional financial costs. The Commission’s and General Court’s unlawful act caused the applicant the same three types of loss as those outlined under the first plea in law but over the longer period from November 2007 to November 2014. |
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2.

Second plea in law, alleging that the applicant has a right to damages against the European Union under Article 268 and Article 340 second paragraph of the TFEU because the European Commission and the General Court both manifestly breached the principle of equal treatment and discriminated against the applicant. Decision No C(2007)5791 final of 28 November 2007 in Case COMP/39165 — Flat glass, wrongly excluded captive sales when calculating the fines imposed on the decision’s other addressees and failed to rectify the ensuing discrimination against the applicant, which as a non-integrated producer did not have any captive sales. The General Court compounded the Commission’s mistake by upholding the decision’s exclusion of these captive sales. This error was only corrected by the Court of Justice in November 2014 when it reduced the decision’s fine by EUR 44,4 million. However, this reduction did not compensate for the damage to the applicant from November 2007 to November 2014, which was caused by it wrongfully having received an inflated fine, which suggested that it bore a particular responsibility for the flat glass cartel and also resulted in additional financial costs. The Commission’s and General Court’s unlawful act caused the applicant the same three types of loss as those outlined under the first plea in law but over the longer period from November 2007 to November 2014.

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