Opinion of the Advocate General — ECLI:EU:C:2019:431
Date: 2019-05-16
Language of the case: English

summary of the principles applicable in relation to default interest, my Opinion in Commission v IPK International (C‑336/13 P, EU:C:2014:2170, points 75 and 77 to 79). 21 See judgment of 12 February 2015, Commission v IPK International (C‑336/13 P, EU:C:2015:83, paragraphs 29 and 30). 22 C‑580/12 P, EU:C:2014:2363. 23 The Court of Justice of the European Union cites, among other authorities, the judgments of 4 October 1979, Ireks-Arkady v EEC (238/78, EU:C:1979:226, paragraph 5), and of 9 November 1989, Briantex and Di Domenico v EEC and Commission (353/88, EU:C:1989:415, paragraph 16). 24 238/78, EU:C:1979:226. 25 Guardian Europe states that it is a wholly-owned subsidiary of Guardian Industries, with responsibility for the European market. 26 The pleas of inadmissibility put forward by the Commission are examined in points 18 and 20 and in footnote 16 of this Opinion. 27 In that regard, the Commission relies on the judgment of 27 April 2017, Akzo Nobel and Others v Commission (C‑516/15 P, EU:C:2017:314, paragraphs 50 and 57). 28 C‑580/12 P, EU:C:2014:2363. 29 See also on this point, as regards the bank guarantee costs, my comments on the second ground of appeal regarding paragraphs 158 and 159 of the judgment under appeal and footnote 9 of this Opinion. 30 See, in particular, judgment of 18 July 2013, Schindler Holding and Others v Commission (C‑501/11 P, EU:C:2013:522, paragraph 102). 31 See judgment of 27 April 2017, Akzo Nobel and Others v Commission (C‑516/15 P, EU:C:2017:314, paragraph 47 and the case-law cited). 32 See judgments of 18 July 2013, Schindler Holding and Others v Commission, (C‑501/11 P, EU:C:2013:522, paragraphs 101 and 102), and of 27 April 2017, Akzo Nobel and Others v Commission (C‑516/15 P, EU:C:2017:314, paragraph 46). 33 Judgment of 18 July 2013, Schindler Holding and Others v Commission (C‑501/11 P, EU:C:2013:522, paragraph 103 and the case-law cited). See also judgment of 27 April 2017, Akzo Nobel and Others v Commission (C‑516/15 P, EU:C:2017:314, paragraph 48). 34 See, for references in the literature, Blumann, C., and Dubouis, L., Droit institutionnel de l’Union européenne, 6th ed., LexisNexis, ‘Manuels’ collection, Paris, 2016, paragraph 954, p. 741, and Van Raepenbusch, S., Le contrôle juridictionnel dans l’Union européenne, 3rd ed., Éditions de l’Université de Bruxelles, ‘Commentaire J. Mégret’ collection, Brussels, 2018, paragraph 330, p. 286. 35 See judgment of 9 November 1989, Briantex and Di Domenico v EEC and Commission (353/88, EU:C:1989:415, paragraph 6), and orders of 1 December 2008, Işçi Partisi v Commission (T‑219/08, not published, EU:T:2008:538, paragraph 7), and of 17 December 2009, Işçi Partisi v Commission (T‑223/09, not published, EU:T:2009:524, paragraphs 12 and 13). 36 See judgment of 30 June 2009, CPEM v Commission (T‑444/07, EU:T:2009:227, paragraphs 39 and 40), and order of 12 May 2010, CPEM v Commission (C‑350/09 P, not published, EU:C:2010:267, paragraph 61). 37 See judgment of 30 September 1998, Coldiretti and Others v Council and Commission (T‑149/96, EU:T:1998:228, paragraphs 57 and 59 and the case-law cited). See also, in that regard, judgment of 18 March 1975, Union syndicale-Service public européen and Others v Council (72/74, EU:C:1975:43, paragraph 21). 38 See judgment of 4 October 1979, Ireks-Arkady v EEC (238/78, EU:C:1979:226, paragraph 5). 39 See, in particular, among the decisions cited above, order of 17 December 2009, Işçi Partisi v Commission (T‑223/09, not published, EU:T:2009:524, paragraph 12 and the case-law cited). 40 See, in particular, among the decisions cited above, order of 17 December 2009, Işçi Partisi v Commission (T‑223/09, not published, EU:T:2009:524, paragraph 13 and the case-law cited). 41 See Bonichot, J.‑C., ‘La réparation du délai excessif de jugement devant les juridictions de l’Union européenne’, Actualité juridique: droit administratif, Dalloz, Paris, 2014, No 12, pp. 683-687, in particular p. 686. 42 See paragraphs 106 and 159 of the judgment under appeal. They are criticised by the second part of the second main ground of appeal. Guardian Europe raises a complaint that the internal memorandum of 13 November 2015 which it produced was distorted, which in my view should be rejected, since that evidence was the subject of an assessment by the General Court which is not manifestly incorrect. 43 See paragraph 99 of the judgment under appeal. 44 Paragraph 104 of the judgment under appeal. 45 As regards the economic and organisational links between a parent company and a subsidiary, they are of the same type as those used for the purpose of imputing the unlawful conduct of a subsidiary to the parent company (see, in particular, judgment of 27 April 2017, Akzo Nobel and Others v Commission (C‑516/15 P, EU:C:2017:314, paragraphs 52 and 54)). 46 See paragraph 12 of the appeal. 47 Concerning the sufficiently serious breach of the principle of equal treatment made in the judgment of the General Court of 27 September 2012, see points 84 and 122 of this Opinion. 48 C‑224/01, EU:C:2003:513. 49 C‑69/14, EU:C:2015:662. 50 See point 92 of this Opinion. 51 C‑224/01, EU:C:2003:513. 52 C‑69/14, EU:C:2015:662. 53 C‑3/16, EU:C:2017:209. 54 C‑580/12 P, EU:C:2014:2363, paragraph 66. 55 See judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363, paragraph 65 and in particular the reference to paragraphs 61 and 62), to be compared with the Opinion of Advocate General Wathelet in Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:272, points 38 and 65), who had emphasised the novel nature of the Commission decision at issue by comparison with its normal practice and the Court’s case-law. 56 See judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363, paragraph 66). 57 The question had only been raised in the judgment of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513). See the observation of the Republic of Austria and the sixth argument supported by the Government of the United Kingdom set out in that judgment, in paragraphs 21 and 28 respectively, on which the Court did not consider it necessary to adjudicate. See, on that point, the commentary on that judgment by Rostane, M., ‘Chronique de jurisprudence du Tribunal et de la Cour de justice des Communautés européennes, Institutions et ordre juridique communautaire, Primauté du droit communautaire’, Journal du droit international (Clunet), LexisNexis, Paris, April 2004, No 2, pp. 552-559, and Adida-Canac, H., ‘L’erreur du juge: entre réparation, indemnisation et responsabilité’, Recueil Dalloz, Dalloz, Paris, 2009, No 19, pp. 1288-1297, in particular p. 1295 and footnote 72. 58 Judgment of 26 November 2013, Groupe Gascogne v Commission (C‑58/12 P, EU:C:2013:770, paragraph 82). 59 See Bonichot, J.‑C., op. cit., in particular p. 686. 60 See, especially, the judgments cited in points 101, 106, 107 of this Opinion and judgment of 9 September 2015, Ferreira da Silva e Brito and Others (C‑160/14, EU:C:2015:565, paragraph 46 et seq.). 61 C‑168/15, EU:C:2016:602. 62 See judgment of 28 July 2016, Tomášová (C‑168/15, EU:C:2016:602, paragraphs 11, 15(2) and 16). 63 See judgment of 28 July 2016, Tomášová (C‑168/15, EU:C:2016:602, paragraphs 18 to 20 and the case-law cited). 64 See judgment of 28 July 2016, Tomášová (C‑168/15, EU:C:2016:602, paragraph 21). 65 Judgment of 28 July 2016, Tomášová (C‑168/15, EU:C:2016:602, point 1 of paragraph 42), emphasis added. 66 C‑168/15, EU:C:2016:602. 67 C‑224/01, EU:C:2003:513. See, to that effect, Simon, D., ‘La responsabilité des États membres en cas de violation du droit communautaire par une juridiction suprême (à propos de l’arrêt Köbler, CJCE, 30 sept. 2003, aff. C‑224/01)’, Revue Europe, LexisNexis, Paris, 2003, No 11, pp. 3-6, in particular p. 4, who observes that ‘the grounds [of the judgment] do not separate two proofs that might have been distinct: … on the one hand, … establishing the principle of liability by reason of a judicial decision and, on the other hand, … showing that that liability also attaches to judgments of the supreme courts. The second consideration seems in the eyes of the Court to be imposed by a fortiori reasoning’. See also the questions raised by Huglo, J.‑G., ‘La responsabilité des États membres du fait des violations du droit communautaire commises par les juridictions nationales: un autre regard’, Gazette du Palais, Lextenso Éditions, Issy-les-Moulineaux, 2004, No 164, pp. 34-40, and Beutler, B., ‘State Liability for Breaches of Community Law by National Courts: Is the Requirement of a Manifest Infringement of the Applicable Law an Insurmountable Obstacle?’, Common Market Law Review, Kluwer Law International, Alphen-sur-le-Rhin, 2009, vol. 46, No 3, pp. 773-804, in particular p. 789, cited by Advocate General Wahl in his Opinion in Tomášová (C‑168/15, EU:C:2016:260, footnote 15). 68 See paragraph 59 of that judgment. 69 C‑224/01, EU:C:2003:513. 70 C‑173/03, EU:C:2006:391, paragraphs 30 to 32. 71 Paragraph 36 is worded as follows: ‘As the Advocate General observed in point 52 of his Opinion, to exclude all State liability in such circumstances on the ground that the infringement of Community law arises from an interpretation of provisions of law made by a court would be tantamount to rendering meaningless the principle laid down by the Court in [the judgment of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513)]. That remark is even more apposite in the case of courts adjudicating at last instance, which are responsible, at national level, for ensuring that rules of law are given a uniform interpretation.’ Emphasis added. 72 See judgment of 13 June 2006, Traghetti del Mediterraneo (C‑173/03, EU:C:2006:391, paragraph 24), to be compared with the Opinion of Advocate General Léger in Traghetti del Mediterraneo (C‑173/03, EU:C:2005:602, point 39). 73 C‑168/15, EU:C:2016:602. 74 See judgment of 28 July 2016, Tomášová (C‑168/15, EU:C:2016:602, paragraph 20 and the case-law cited, in particular, judgment of 13 June 2006, Traghetti del Mediterraneo (C‑173/03, EU:C:2006:391, paragraph 31)). 75 See judgment of 13 June 2006, Traghetti del Mediterraneo (C‑173/03, EU:C:2006:391, paragraph 32). 76 See, to that effect, footnote 19 of the Opinion of Advocate General Léger in Traghetti del Mediterraneo (C‑173/03, EU:C:2005:602): ‘As I pointed out in my Opinion in Köbler [(C‑224/01, EU:C:2003:207, point 38)], although where there is no possibility of an appeal against a decision of a supreme court, an action for damages alone serves — in the final analysis — to ensure that the right infringed is restored and, finally, to ensure that the effective judicial protection of the rights which individuals derive from Community law is of an appropriate level, the same does not apply as regards decisions delivered by ordinary courts since a domestic appeal may be brought against them.’. 77 The word is taken, in particular, from the judgment of 24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, paragraph 58). 78 On the different forms of compensation, see the Opinion of Advocate General Wahl in the joined cases European Union v Gascogne Sack Deutschland and Gascogne (C‑138/17 P and C‑146/17 P, EU:C:2018:620, point 84). 79 See Opinion 2/13 of 18 December 2014 (EU:C:2014:2454, paragraph 174), and judgment of 24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, paragraph 39). 80 It should be emphasised that, since the entry into force of the Treaty of Nice, which effected a significant reform of the judicial system, the powers of the General Court have been significantly widened. Under Article 256(1) TFEU, the General Court is to have jurisdiction to hear and determine virtually all actions, with the exception, mainly, of infringement proceedings. According to Van Raepenbusch, S., op. cit., paragraph 4, p. 14 and paragraph 62, p. 72, that reform transformed the General Court ‘into a veritable general administrative court’. 81 See Article 256 TFEU (ex-Article 225 TEC, having as its origin the amendment by the Treaty of Maastricht or the former Article 168A EEC) and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, which states that ‘an appeal to the Court of Justice shall be limited to points of law. It shall lie on the grounds of lack of competence of the General Court, a breach of procedure before it which adversely affects in interests of the appellant as well as the infringement of Union law by the General Court’. 82 See, as regards the national courts, Van Raepenbusch, S., op. cit., paragraph 2, p. 12. 83 See judgment of 13 June 2006, Traghetti del Mediterraneo (C‑173/03, EU:C:2006:391, paragraph 32), to be compared with the Opinion of Advocate General Léger in Traghetti del Mediterraneo (C‑173/03, EU:C:2005:602, points 70 to 75), and judgments of 15 March 2017, Aquino (C‑3/16, EU:C:2017:209, paragraphs 31 to 34), and of 4 October 2018, Commission v France (Advance payment of tax) (C‑416/17, EU:C:2018:811, paragraphs 108 and 109). 84 See Opinion 2/13 of 18 December 2014 (EU:C:2014:2454, paragraph 176), and judgment of 24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, paragraph 41). 85 See, in that regard, Opinion of Advocate General Léger in Köbler (C‑224/01, EU:C:2003:207, point 94). 86 See judgment of 13 June 2006, Traghetti del Mediterraneo (C‑173/03, EU:C:2006:391, paragraph 34). 87 See, as an illustration of the causes of errors that might be made in the exercise of a court’s interpretative activity, judgment of 13 June 2006, Traghetti del Mediterraneo (C‑173/03, EU:C:2006:391, paragraph 35). 88 See, as regards the finding of the absence of an acquired right to consistent case-law, ECtHR, 18 December 2008, Unédic v. France (CE:ECHR:2008:1218JUD002015304, § 74), referred to in the order of 13 July 2010, Allen and Others v Commission (F‑103/09, EU:F:2010:88, paragraph 49). See also Guide on Article 6 of the European Convention on Human Rights, Right to a fair trial (civil limb), updated on 31 December 2018, available at the following internet address: https://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf (point 279). 89 See, for an overview of the legislation and the case-law of certain Member States, Guinchard, S., ‘Responsabilités encourues pour fonctionnement défectueux du service public de la justice’, Répertoire de procédure civile, Encyclopédie juridique Dalloz, Dalloz, Paris, January 2018, paragraph 34, to be compared with the explanation given in the Opinion of Advocate General Léger in Köbler (C‑224/01, EU:C:2003:207, point 77 et seq.). As regards the Italian legislation, see also judgment of 24 November 2011, Commission v Italy (C‑379/10, not published, EU:C:2011:775). As regards French positive law, I would note that Article L 141-1 of the Code of Judicial Organisation provides that State liability is to be incurred only in the case of a serious error or a denial of justice. Since 2001, the Cour de cassation (Court of Cassation, France) has given priority to an objective concept of error, namely that ‘a serious fault consists of any failure characterised by a fact or a series of facts reflecting the inability of the public service of justice to carry out the task entrusted to it’ (23 February 2001, Ass. Plén., No 99-16.165 (Bulletin 2001, Ass. Plén., No 5, p. 10)). In addition, according to the settled case-law of the Cour de cassation (Court of Cassation, France), ‘the inability of the public service of justice to carry out the task entrusted to it can be assessed only insofar as the exercise of remedies did not enable the alleged failure to be made good’ (judgments of 6 May 2003, 1st Civil Chamber, No 01-02.543 (Bulletin 2003, I, No 105, p. 82), of 4 November 2010, 1st Civil Chamber, No 09-15.869 (Bulletin 2010, I, No 223), and of 5 September 2018, 1st Civil Chamber, No 17-21.206 (FR:CCASS:2018:C100793)). As regards administrative justice, the Conseil d’État (Council of State, France) has established quite similar rules on liability on account of the judicial justice provided for by law. Liability is incurred only in the event of serious error which must not result from the content of a judicial decision which has become final (judgment of 29 December 1978, Darmont, No 96004, published in the Recueil). Special rules have been established, under which the State may incur liability for unjustified delay by the administrative courts in adjudicating, for which serious error is no longer a requirement (judgment of 28 June 2002, ass., Garde des sceaux, ministre de la Justice v. Magiera, No 239575, published in the Recueil). 90 In the interest of completeness, it may be stated that the exercise of such a remedy has already been examined by the Court, when it adjudicated on an appeal brought against the order of 23 January 2018, Campailla v European Union (T‑759/16, not published, EU:T:2018:26), although it was not required to rule on the point of law relating to the conditions in which the Union would incur liability for a decision delivered by the Court (see paragraph 33 et seq. of that order). In fact, the Court confirmed that the action for damages was inadmissible and observed that the grounds at issue, which were criticised in the appeal, had been included for the sake of completeness, in its order of 7 August 2018, Campailla v European Union (C‑256/18 P, not published, EU:C:2018:655, paragraphs 43, 46 and 47). 91 See, especially in this instance, judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363, paragraph 20). 92 By way of example, the irregularity in question may consist of a breach of the rights of the defence, failure to observe the inter partes principle, failure to state reasons or reasoning reflecting the bias of the court.