# C_2019363EN.01003101.xml

| 28.10.2019 | EN | Official Journal of the European Union | C 363/31 |
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28.10.2019

EN

Official Journal of the European Union

C 363/31

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Action brought on 9 September 2019 — Deutsche Telekom v Commission

(Case T-610/19)

(2019/C 363/40)

Language of the case: German

Parties

Applicant: Deutsche Telekom AG (Bonn, Germany) (represented by: P. Linsmeier, U. Soltész, C. von Köckritz and P. Lohs, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul, pursuant to the fourth paragraph of Article 263 TFEU, the Commission’s decision of 28 June 2019 rejecting the application for payment of default interest; |
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Annul, pursuant to the fourth paragraph of Article 263 TFEU, the Commission’s decision of 28 June 2019 rejecting the application for payment of default interest;

| — | order the European Union, represented by the Commission, to pay the applicant financial compensation of EUR 2 580 374,07 for the loss incurred by the applicant because, for the period from 16 January 2015 to 19 February 2019, it was unable to use the amount wrongly paid with the result that it was unable to generate the income that it usually generates with that amount or reduce its capital costs accordingly, or |
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order the European Union, represented by the Commission, to pay the applicant financial compensation of EUR 2 580 374,07 for the loss incurred by the applicant because, for the period from 16 January 2015 to 19 February 2019, it was unable to use the amount wrongly paid with the result that it was unable to generate the income that it usually generates with that amount or reduce its capital costs accordingly, or

| — | in the alternative, should the Court dismiss the second head of claim, pay the applicant financial compensation of EUR 1 750 522,83 for the loss incurred by the applicant because the Commission refused to pay it, for the period from 16 January 2015 to 19 February 2019, default interest on the amount of EUR 12 039 019, calculated on the basis of the rate applied by the European Central Bank to its principal refinancing operations, increased by 3.5 percentage points, for the period from 16 January 2015 to 19 February 2019, or — in the further alternative — compensation in the amount of another sum deemed appropriate by the Court, calculated on the basis of a rate of default interest deemed appropriate by the Court; |
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in the alternative, should the Court dismiss the second head of claim, pay the applicant financial compensation of EUR 1 750 522,83 for the loss incurred by the applicant because the Commission refused to pay it, for the period from 16 January 2015 to 19 February 2019, default interest on the amount of EUR 12 039 019, calculated on the basis of the rate applied by the European Central Bank to its principal refinancing operations, increased by 3.5 percentage points, for the period from 16 January 2015 to 19 February 2019, or — in the further alternative — compensation in the amount of another sum deemed appropriate by the Court, calculated on the basis of a rate of default interest deemed appropriate by the Court;

| — | declare that the amount to be paid by the Commission in accordance with the second and third heads of claim shall, for the period from the delivery of the judgment in the present case until payment in full by the Commission, also bear interest at the rate applied by the European Central Bank to its principal refinancing operations, increased by 3.5 percentage points, or in the alternative at another rate of default interest deemed appropriate by the Court; and |
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declare that the amount to be paid by the Commission in accordance with the second and third heads of claim shall, for the period from the delivery of the judgment in the present case until payment in full by the Commission, also bear interest at the rate applied by the European Central Bank to its principal refinancing operations, increased by 3.5 percentage points, or in the alternative at another rate of default interest deemed appropriate by the Court; and

| — | order the Commission and the European Union to pay the applicant’s costs. |
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order the Commission and the European Union to pay the applicant’s costs.

Pleas in law and main arguments

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

| 1. | First plea in law (application for annulment): By refusing to pay default interest to the applicant, the Commission has infringed its duty to comply with the judgment of 13 December 2018, Deutsche Telekom v Commission (T-827/14, EU:T:2018:930), a duty which was confirmed by the judgment of 5 September 2019, European Union v Guardian Europe (C-447/17 P, EU:C:2019:672), thus infringing the first paragraph of Article 266 TFEU. |
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1.

First plea in law (application for annulment): By refusing to pay default interest to the applicant, the Commission has infringed its duty to comply with the judgment of 13 December 2018, Deutsche Telekom v Commission (T-827/14, EU:T:2018:930), a duty which was confirmed by the judgment of 5 September 2019, European Union v Guardian Europe (C-447/17 P, EU:C:2019:672), thus infringing the first paragraph of Article 266 TFEU.

| 2. | Second plea in law (application for annulment): Infringement of the obligation to state reasons pursuant to the second paragraph of Article 296 TFEU
  The applicant submits in that regard that the reasons for the decision rejecting the application for payment of default interest are insufficient since that decision fails to explain sufficiently clearly the reason for the rejection of the application. It remains unclear whether the Commission assumes that Article 90 of Commission Delegated Regulation (EU) No 1268/2012 (1) also definitively regulates the entitlement to default interest under the first paragraph of Article 266 TFEU and how such an interpretation is compatible with the settled case-law relating to the Commission’s obligation to pay default interest under the first paragraph of Article 266 TFEU. |
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2.

Second plea in law (application for annulment): Infringement of the obligation to state reasons pursuant to the second paragraph of Article 296 TFEU

The applicant submits in that regard that the reasons for the decision rejecting the application for payment of default interest are insufficient since that decision fails to explain sufficiently clearly the reason for the rejection of the application. It remains unclear whether the Commission assumes that Article 90 of Commission Delegated Regulation (EU) No 1268/2012 (1) also definitively regulates the entitlement to default interest under the first paragraph of Article 266 TFEU and how such an interpretation is compatible with the settled case-law relating to the Commission’s obligation to pay default interest under the first paragraph of Article 266 TFEU.

| 3. | Third plea in law (claim for compensation): Loss incurred by the applicant due to it not having been able to use the overpaid amount of the unlawful fine, pursuant to the second paragraph of Article 266, Article 268 and the second paragraph of Article 340 TFEU, and, in the alternative, due to the Commission’s refusal to pay default interest |
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Third plea in law (claim for compensation): Loss incurred by the applicant due to it not having been able to use the overpaid amount of the unlawful fine, pursuant to the second paragraph of Article 266, Article 268 and the second paragraph of Article 340 TFEU, and, in the alternative, due to the Commission’s refusal to pay default interest

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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).

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