# C_2021401EN.01001101.xml

| 4.10.2021 | EN | Official Journal of the European Union | C 401/11 |
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4.10.2021

EN

Official Journal of the European Union

C 401/11

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Action brought on 10 July 2021 — Ferriere Nord v Commission

(Case T-414/21)

(2021/C 401/13)

Language of the case: Italian

Parties

Applicant: Ferriere Nord SpA (Osoppo, Italy) (represented by: W. Viscardini, G. Donà and B. Comparini, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| (1) | (a) | order (under the second paragraph of Article 266, Article 268 and the second paragraph of Article 340 TFEU) the European Union, represented by the Commission, to pay EUR 1 096 814,68 (or, in the alternative, a different sum to be determined by the Court by applying, where appropriate, a different rate from the one indicated below) — that amount being the result of applying the (1 %) refinancing rate of the European Central Bank (ECB) in force on 9 March 2010, increased by three and a half percentage points, for the period from 9 March 2010 until 25 October 2017 (less EUR 129 847,10 already paid as ‘yielded’ interest) — in compensation for the damage caused to Ferriere Nord SpA due to the failure to pay (contrary to the first paragraph of Article 266 TFEU) the default interest payable in respect of the fine (imposed by European Commission Decisions C(2009) 7492 final of 30 September 2009 and C(2009) 9912 final of 8 December 2009) provisionally paid by it on 9 March 2010 and repaid to it by the European Commission on 25 October 2017 following the judgment of the Court of Justice of 21 September 2017 in Case C-88/15 P;
  and, consequently, |
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(1)

(a)

order (under the second paragraph of Article 266, Article 268 and the second paragraph of Article 340 TFEU) the European Union, represented by the Commission, to pay EUR 1 096 814,68 (or, in the alternative, a different sum to be determined by the Court by applying, where appropriate, a different rate from the one indicated below) — that amount being the result of applying the (1 %) refinancing rate of the European Central Bank (ECB) in force on 9 March 2010, increased by three and a half percentage points, for the period from 9 March 2010 until 25 October 2017 (less EUR 129 847,10 already paid as ‘yielded’ interest) — in compensation for the damage caused to Ferriere Nord SpA due to the failure to pay (contrary to the first paragraph of Article 266 TFEU) the default interest payable in respect of the fine (imposed by European Commission Decisions C(2009) 7492 final of 30 September 2009 and C(2009) 9912 final of 8 December 2009) provisionally paid by it on 9 March 2010 and repaid to it by the European Commission on 25 October 2017 following the judgment of the Court of Justice of 21 September 2017 in Case C-88/15 P;

and, consequently,

| (b) | order the European Union, represented by the European Commission, to pay an additional amount as capitalisation of the compensation amount referred to in point (a) above, as from 25 October 2017 (or, in the alternative, from another date to be determined by the Court) until the date on which final payment is actually made, with that payment to be calculated according to the rate set by the European Central Bank for its principal refinancing operations, increased by three and a half percentage points (or, in the alternative, at another rate to be determined by the Court); |
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(b)

order the European Union, represented by the European Commission, to pay an additional amount as capitalisation of the compensation amount referred to in point (a) above, as from 25 October 2017 (or, in the alternative, from another date to be determined by the Court) until the date on which final payment is actually made, with that payment to be calculated according to the rate set by the European Central Bank for its principal refinancing operations, increased by three and a half percentage points (or, in the alternative, at another rate to be determined by the Court);

| (2) | annul (under Article 263 TFEU) the letter of the European Commission (Directorate-General for Budget) Ares (2021)2904048 of 30 April 2021; |
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(2)

annul (under Article 263 TFEU) the letter of the European Commission (Directorate-General for Budget) Ares (2021)2904048 of 30 April 2021;

| (3) | in any event, order the Commission to pay the costs in the case. |
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(3)

in any event, order the Commission to pay the costs in the case.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law, one of which relates to compensation (1) and the other of which concerns the annulment of the contested letter (2).

| 1. | First plea in law, alleging that the Commission acted unlawfully by infringing the first paragraph of Article 266 TFEU (as well as Article 83 of Regulation No 1268/2012 (1) and/or, in so far as necessary, Article 86 of Regulation No 2342/2002 (2))






  — | In this regard, the applicant claims that, in order fully to comply (within the meaning of the first paragraph of Article 266 TFEU) with the judgment of the Court of Justice of 21 September 2017, Ferriere Nord v Commission (C-88/15 P, EU:C:2017:716) (which had annulled a 2009 assessment decision under Article 101 TFEU), the Commission should have repaid to Ferriere Nord not only the fine paid provisionally in 2010, but also default interest on that fine to be calculated according to the rate determined in accordance with Article 83(2)(b) of Regulation No 1268/2012, which is the rate applied by the European Central Bank to its principal refinancing operations in force on the first calendar day of the month in which the deadline falls, increased by three and a half percentage points. Instead, on 25 October 2017, the Commission paid, as interest, only the interest ‘yielded’ within the meaning of Article 90(4)of Regulation No 1268/2012, which was the return obtained from the bank account into which the amount of the fine had provisionally been paid. The failure to pay default interest constitutes an infringement of primary EU law (first paragraph of Article 266 TFEU), which gives rise to non-contractual liability on the part of the Commission. The amount of compensation payable for the reasons set out above will have to be capitalised from the date on which ‘yielded’ interest alone was paid until the date on which payment is actually made. |
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1.

First plea in law, alleging that the Commission acted unlawfully by infringing the first paragraph of Article 266 TFEU (as well as Article 83 of Regulation No 1268/2012 (1) and/or, in so far as necessary, Article 86 of Regulation No 2342/2002 (2))

—

In this regard, the applicant claims that, in order fully to comply (within the meaning of the first paragraph of Article 266 TFEU) with the judgment of the Court of Justice of 21 September 2017, Ferriere Nord v Commission (C-88/15 P, EU:C:2017:716) (which had annulled a 2009 assessment decision under Article 101 TFEU), the Commission should have repaid to Ferriere Nord not only the fine paid provisionally in 2010, but also default interest on that fine to be calculated according to the rate determined in accordance with Article 83(2)(b) of Regulation No 1268/2012, which is the rate applied by the European Central Bank to its principal refinancing operations in force on the first calendar day of the month in which the deadline falls, increased by three and a half percentage points. Instead, on 25 October 2017, the Commission paid, as interest, only the interest ‘yielded’ within the meaning of Article 90(4)of Regulation No 1268/2012, which was the return obtained from the bank account into which the amount of the fine had provisionally been paid. The failure to pay default interest constitutes an infringement of primary EU law (first paragraph of Article 266 TFEU), which gives rise to non-contractual liability on the part of the Commission. The amount of compensation payable for the reasons set out above will have to be capitalised from the date on which ‘yielded’ interest alone was paid until the date on which payment is actually made.

| 2. | Second plea in law, alleging infringement of Article 46 of the Statute of the Court of Justice and, consequently, of the first paragraph of Article 266 TFEU (as well as Article 83 of Regulation No 1268/2012 and/or, in so far as necessary, Article 86 of Regulation No 2342/2002)






  — | In this regard, the applicant claims that, by its letter of 30 April 2021, the Commission declared that it was not able and/or did not wish to grant Ferriere Nord’s pre-litigation application for compensation under Article 46 of the Statute of the Court of Justice because the limitation period of five years set out therein had elapsed, given that — in the view of that institution — the event that gave rise to its non-contractual liability (and therefore the moment from which the limitation period began to run) was the provisional payment of the fine in 2010. By contrast, Ferriere Nord infers that the event which gave rise to liability is the fact that on 25 October 2017 — when the fine was repaid in execution of the 2017 judgment — the Commission did not pay the default interest provided for in Article 83 of Regulation No 1268/2012 and paid only the interest ‘yielded’ as provided for under Article 90 of that regulation. It is that infringement of the first paragraph of Article 266 TFEU which constitutes the unlawful conduct of the Commission and gives rise to its non-contractual liability; consequently, it is the moment of that infringement which triggers the five-year limitation period provided for under Article 46 of the Statute. |
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2.

Second plea in law, alleging infringement of Article 46 of the Statute of the Court of Justice and, consequently, of the first paragraph of Article 266 TFEU (as well as Article 83 of Regulation No 1268/2012 and/or, in so far as necessary, Article 86 of Regulation No 2342/2002)

—

In this regard, the applicant claims that, by its letter of 30 April 2021, the Commission declared that it was not able and/or did not wish to grant Ferriere Nord’s pre-litigation application for compensation under Article 46 of the Statute of the Court of Justice because the limitation period of five years set out therein had elapsed, given that — in the view of that institution — the event that gave rise to its non-contractual liability (and therefore the moment from which the limitation period began to run) was the provisional payment of the fine in 2010. By contrast, Ferriere Nord infers that the event which gave rise to liability is the fact that on 25 October 2017 — when the fine was repaid in execution of the 2017 judgment — the Commission did not pay the default interest provided for in Article 83 of Regulation No 1268/2012 and paid only the interest ‘yielded’ as provided for under Article 90 of that regulation. It is that infringement of the first paragraph of Article 266 TFEU which constitutes the unlawful conduct of the Commission and gives rise to its non-contractual liability; consequently, it is the moment of that infringement which triggers the five-year limitation period provided for under Article 46 of the Statute.

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(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).

(2)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1).

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