ORDER OF THE GENERAL COURT (First Chamber)
22 December 2022
(*)
(Action for annulment and for damages – Competition – Agreements, decisions and concerted practices – Market for airfreight – Decision finding an infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport – Annulment by the General Court – Refusal of the Commission to pay default interest – Remedies – Limitation period – Time limit for bringing proceedings – Out of time – Act confirming a previous measure – Inadmissibility)
In Case T‑480/21,
British Airways plc, established in Harmondsworth (United Kingdom), represented by A. Lyle-Smythe and R. O’Donoghue, lawyers,
applicant,
v
European Commission, represented by N. Khan, P. Rossi and L. Wildpanner, acting as Agents,
defendant,
THE GENERAL COURT (First Chamber),
composed, at the time of the deliberations, of H. Kanninen (Rapporteur), President, N. Półtorak and O. Porchia, Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
makes the following
Order
1        By its action, which it states is based on Article 263 TFEU, the first paragraph of Article 266 TFEU, Article 268 TFEU and the second paragraph of Article 340 TFEU, the applicant, British Airways plc, requests the Court, first, to order the European Commission to pay it the amount of default interest and compound interest allegedly due and, second, to annul the letter of 30 April 2021 (‘the letter of 30 April 2021’) and the letter of 2 July 2021 (‘the letter of 2 July 2021’), by which the Commission refused to pay it the said interest.
Background to the dispute
2        On 9 November 2010, the Commission adopted Decision C(2010) 7694 final relating to a proceeding under Article 101
[TFEU], Article 53 of the [EEA Agreement] and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39258 – Airfreight) (‘the decision of 9 November 2010’). That decision had 21 addressees – the applicant among them – and described, in its reasons, a single and continuous infringement of Article 101 TFEU, Article 53 of the Agreement on the European Economic Area (EEA) and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport. According to those reasons, those addressees had coordinated their pricing behaviour for the provision of freight services within the EEA and in Switzerland.
3        Articles 1 to 4 of the decision of 9 November 2010 concerned the apportionment between the addressees of the said decision of the liability for the conduct at issue that took place. In those same provisions, the Commission held the applicant liable for that conduct in its entirety.
4        Article 5 of the decision of 9 November 2010 concerned fines. It read as follows in so far as it concerned the applicant:
‘For the infringements referred to in Articles 1 to 4 [of the decision of 9 November 2010], the following fines are imposed:
…
(e)      British Airways plc: EUR 104 040 000;
…
The fines shall be paid in euro, within three months of the date of the notification of
this
decision …
After the expiry of that period, interest shall automatically be payable at the interest rate applied by the European Central Bank [(ECB)] to its main refinancing operations on the first day of the month in which [the decision of 9 November 2010] is adopted, plus 3.5 percentage points.
Where an undertaking referred to in Article 1 [of the decision of 9 November 2010] lodges an appeal, that undertaking shall cover the fine by the due date by either providing an acceptable bank guarantee or making a provisional payment of the fine in accordance with Article 85a(1) of Commission Regulation (EC, Euratom) No 2342/2002 [of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002 (OJ 2002 L 357, p. 1)].’
5        On 24 January 2011, the applicant brought an action for annulment against the decision of 9 November 2010.
6        On 14 February 2011, the applicant paid, provisionally, the full amount of the fine imposed on it in Article 5 of the decision of 9 November 2010.
7        By judgment of 16 December 2015, British Airways v Commission (T‑48/11, not published, EU:T:2015:988), the Court annulled in its entirety Article 5 of the decision of 9 November 2010, in so far as it concerned the applicant. By contrast, the Court annulled only in part Articles 1 to 4 of that decision, in so far as they concerned the applicant, in accordance with the form of order sought by the applicant, which had not requested that they be annulled in their entirety.
8        By judgment of 14 November 2017, British Airways v Commission (C‑122/16 P, EU:C:2017:861), the Court of Justice dismissed the appeal that the applicant had lodged against the judgment referred to in paragraph 7 above.
9        On 8 February 2016, the applicant received an amount corresponding to the fine it had paid provisionally, plus a guaranteed return of EUR 2 270 409.48, calculated on the basis of the performance of a specific benchmark.
10      On 13 April 2021, the applicant sent the Commission a letter in which it requested, in essence, payment of amounts corresponding to:
–        default interest of EUR 21 074 456.27, calculated on the amounts it paid to the Commission provisionally in February 2011 at the interest rate applied by the European Central Bank (ECB) to its refinancing operations on 1 November 2010, plus 3.5 percentage points, for the period between the date on which it had paid that amount and the date on which the Commission made their repayment, plus the guaranteed return;
–        compound interest, calculated on the amount due by way of default interest, for the period between the date on which the Commission had repaid the amounts provisionally paid by the applicant and the date on which the Commission paid the amount claimed by way of default interest, at the ECB rate of interest for its refinancing operations on 1 November 2010, plus 3.5%.
11      On 30 April 2021, the Commission sent the applicant the letter in which it stated that it was rejecting the request of 13 April 2021, on the ground that it was time-barred.
12      On 11 June 2021, the applicant sent a further letter to the Commission in which it reiterated its request of 13 April
2021 and explained why it was incorrect to consider that it was time-barred.
13      On 2 July 2021, the Commission sent the applicant the letter in which it replied to its letter of 11 June 2021. In that document, the Commission informed the applicant that it had taken note of its arguments, but confirmed the position expressed in the letter of 30 April 2021.
Forms of order sought
14      The applicant claims, in essence, that the Court should:
–        order the Commission to pay a sum of EUR 21 074 456.27, corresponding to default interest calculated on the principal amount of the fine unduly paid, at the rate of interest applied by the ECB to its refinancing operations on 1 November 2010, plus 3.5 percentage points, for the period between the date of provisional payment of the fine and the date on which the Commission made its repayment, or, alternatively, at such rate as the Court sees fit;
–        order the Commission to pay compound interest (or, alternatively, default interest) calculated on the amount due by way of default interest or on any other amount that the Court orders the Commission to pay in accordance with the previous head of claim, for the period between the date on which the Commission reimbursed the amounts unduly paid and the date of actual payment of the amount claimed under that same head of claim, at the ECB interest rate for its refinancing operations on 1 November 2010, plus 3.5%, or, alternatively, at such rate as the Court sees fit;
–        in the alternative, annul the letter of 30 April 2021 and the letter of 2 July 2021 (together referred to as ‘the contested acts’);
–        order the Commission to pay the costs incurred by it.
15      The Commission contends that the Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.
16      In its observations on the plea of inadmissibility, the applicant claims that the Court should dismiss that plea.
Law
17      Under Article 130(1) and (7) of the Rules of Procedure of the General Court, the Court may give a decision on inadmissibility without going to the substance of the case, if a defendant makes an application asking it to do so.
18      In the present case, as the Commission has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the file, has decided to rule on that application without taking further steps in the proceedings, even though the applicant has requested that a hearing be held.
19      The applicant states that it bases its action, primarily, on the first paragraph of Article 266 TFEU, in the alternative, on Article 268 and the second paragraph of Article 340 TFEU and, in the further alternative, on Article 263 TFEU.
20      The Commission pleads that the action is inadmissible to the extent that it is based on each of those provisions.
Admissibility of the action to the extent that it is based on the first paragraph of Article 266 TFEU
21      The applicant claims, in essence, that the appropriate legal remedy for enforcing the Commission’s obligation to pay default interest following the annulment of the decision of 9 December 2010 is an independent direct action, based on the first paragraph of Article 266 TFEU, and not an action for non-contractual liability of the European Union, based on Article 268 and the second paragraph of Article 340 TFEU. In its view, an undertaking’s right to recover such interest cannot depend upon its ability to establish that the requirements of such liability have been satisfied.
22      The Commission’s obligation to pay default interest following the annulment of the decision of 9 December 2010 stems from its duty to comply with the judgments of the EU Courts. It is apparent from Article 266 TFEU itself that that duty does not fall within the non-contractual liability of the European Union referred to in Article 340 TFEU.
23      The Court of Justice confirmed that distinction in the judgment of 20 January 2021, Commission v Printeos (C‑301/19, EU:C:2021:39), recognising that it was necessary to distinguish between the obligation to pay default interest, based on the first paragraph of Article 266 TFEU, and the obligation to pay compensatory interest, based on Article 340 TFEU. According to the applicant, the judgment of 10 October 2001, Corus UK v Commission (T‑171/99, EU:T:2001:249), supports its analysis.
24      Moreover, according to the applicant, depriving it of the possibility of requiring compliance with the judgment of 16 December 2015, British Airways v Commission (T‑48/11, not published, EU:T:2015:988), would be a breach of the Charter of Fundamental Rights of the European Union (‘the Charter’). First, in view of the fundamental right to an effective judicial remedy enshrined in Article 47 of the Charter, its right to full compliance with the obligation on EU institutions to pay default interest would be meaningless if it could not be enforced directly.
25      Second, according to the applicant, it is contrary to the ‘restitutionary principle’ arising from Article 41(3) of the Charter that it has no remedy enabling it to be put in the position in which it would have been had the Commission not imposed an unlawful fine on it.
26      The Commission replies that the allegedly inadequate implementation of the judgment of 16 December 2015, British Airways v Commission (T‑48/11, not published, EU:T:2015:988), does not provide an obvious basis for bringing an action under, inter alia, Article 266 TFEU. It adds that the action is time-barred and therefore inadmissible, even if it could be based on the first paragraph of Article 266 TFEU.
27      In that regard, it should be recalled that the Treaties provide, restrictively, the remedies which are available to persons to rely on their rights (judgment of 21 April 2005, Holcim (Deutschland) v Commission, T‑28/03, EU:T:2005:139, paragraph 31).
28      In accordance with Article 256 TFEU, those are the remedies provided for in Articles 263, 265, 268, 270 and 272 TFEU. By contrast, Article 266 TFEU, which does not confer on the Court any power that would go beyond the jurisdiction expressly laid down in the Treaties (see, to that effect, judgment of 4 April 2019, ClientEarth v Commission, T‑108/17, EU:T:2019:215, paragraph 30), does not establish a remedy (see, to that effect, judgment of 15 October 2008, Camar v Commission, T‑457/04 and T‑223/05, not published, EU:T:2008:439, paragraph 49).
29      Article 266 TFEU cannot therefore autonomously found an action which, like the action brought by the applicant before the Court in the present case, seeks the payment of interest allegedly due as a result of the Commission’s wrongful failure to take a measure necessary to comply with an annulling judgment (see, to that effect, judgment of 21 April 2005, Holcim (Deutschland) v Commission, T‑28/03, EU:T:2005:139, paragraph 32; order of 12 December 2007, Atlantic Container Line and Others v Commission, T‑113/04, not published, EU:T:2007:377, paragraph 22; and judgment of 5 September 2014, Éditions Odile Jacob v Commission;
T‑471/11, EU:T:2014:739, paragraph 71).
30      Contrary to what the applicant claims, the judgment of 10 October 2001, Corus UK v Commission (T‑171/99, EU:T:2001:249), does not support a different conclusion. It is true that, in that case, the Court accepted that Article 34 CS could autonomously found an action seeking compensation for the harm resulting from the Commission’s refusal to pay interest on the sum repaid pursuant to a judgment of the Court reducing the level of a fine.
31      It is worth noting, however, that the wording of Article 34 CS corresponds only in part to that of Article 266 TFEU. Unlike that provision, the second paragraph of Article 34 CS provided for a specific legal remedy, distinct from that provided for by the general rule of Community liability under Article 40 CS, and which could be used only where the damage alleged arose from a Commission decision annulled by the EU judicature (judgment of 10 October 2001, Corus UK v Commission, T‑171/99, EU:T:2001:249, paragraphs 39 and 40; see also, to that effect, judgment of 21 April 2005, Holcim (Deutschland) v Commission, T‑28/03, EU:T:2005:139, paragraphs 38 and 39).
32      As for the judgments of 12 February 2015, Commission v IPK International (C‑336/13 P, EU:C:2015:83); of 20 January 2021, Commission v Printeos (C‑301/19, EU:C:2021:39); and of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), they do not support the applicant’s line of argument, either.
33      It cannot be concluded from the judgments cited in paragraph 32 above that the first paragraph of Article 266 TFEU establishes an autonomous legal remedy which is not mentioned in Article 256 TFEU, since this would conflate the rights on which the applicant relies and the legal remedies which should be used to ensure that they are observed.
34      Nor, contrary to what the applicant claims, can the existence of an autonomous legal remedy based on the first paragraph of Article 266 TFEU be inferred from Article 41(3) and Article 47 of the Charter.
35      The right to an effective remedy enshrined in Article 47 of the Charter includes, for the person who holds that right, access to a court or tribunal with the power to ensure respect for the rights guaranteed to that person by EU law (see judgment of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters), C‑245/19 and C‑246/19, EU:C:2020:795, paragraph 66 and the case-law cited).
36      Article 47 of the Charter is not, however, intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Court (see judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 97 and the case-law cited; judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 43).
37      In the system of judicial review provided for by the Treaties, however, the obligation arising under the first paragraph of Article 266 TFEU can be implemented by means of the action for annulment referred to in Article 263 TFEU or by means of the action for failure to act referred to in Article 265 TFEU (see, to that effect, judgment of 21 April 2005, Holcim (Deutschland) v Commission, T‑28/03, EU:T:2005:139, paragraph 33 and the case-law cited, and order of 12 December 2007, Atlantic Container Line and Others v Commission, T‑113/04, not published, EU:T:2007:377, paragraph 23), the individual
also being able to bring before the EU Courts an action for non-contractual liability under Article 268 and the second paragraph of Article 340 TFEU.
38      It cannot therefore be held that Article 47 of the Charter requires the first paragraph of Article 266 TFEU to be interpreted as establishing an independent remedy.
39      As for the argument based on Article 41(3) of the Charter, it is founded explicitly on the premiss that the applicant ‘has no remedy’ to implement the Commission’s obligation to pay it default interest following the annulment of the decision of 9 December 2010. It is apparent from paragraph 37 above, however, that that premiss is incorrect.
40      It follows that the argument based on Article 41(3) of the Charter must also be rejected.
41      It must therefore be concluded that the present action is inadmissible to the extent that it is based on the first paragraph of Article 266 TFEU.
Admissibility of the action to the extent that it is based on Article 268 and the second paragraph of Article 340 TFEU
42      The Commission submits that the action is time-barred to the extent that it is based on Article 268 and the second paragraph of Article 340 TFEU, the five-year limitation period referred to in the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union having begun to run on 14 February 2011.
43      The Commission adds that, even accepting the applicant’s argument regarding the starting date of the limitation period, that period expired on 8 February 2021, that is to say, well before the date on which a prior request was sent to the Commission, namely 13 April 2021. The same applies to the compound interest, the question of its payment being strictly dependent on that of payment of the default interest itself.
44      The applicant replies that the Commission’s obligation to pay default interest following the annulment of the decision of 9 December 2010 did not disappear due to the effluxion of time nor did it cease because the Commission failed to pay it the sum claimed. In reality, the first paragraph of Article 266 TFEU places the institution concerned under an obligation – which is ongoing – to take the measures necessary to reverse the effects of the annulled act and to restore the person concerned to the position in which that person was beforehand. By failing to pay it the default interest allegedly owed, the Commission continues to refrain from taking a step that is necessary to comply with the judgment of 16 December 2015, British Airways v Commission (T‑48/11, not published, EU:T:2015:988).
45      The applicant also claims that the Commission’s line of argument disregards one of the two objectives of the payment of default interest, which is to provide the institution concerned with an incentive to pay particular attention when adopting a decision, which may entail an obligation for an individual to pay considerable sums immediately.
46      The applicant adds that it is entitled to receive compound interest, at least for the five-year period preceding the lodging of the present application. The damage resulting from the Commission’s refusal to grant it such interest should be regarded as continuing.
Default interest
–       Preliminary observations
47      As a preliminary point, it should be borne in mind that the applicant claims that the Commission’s obligation to pay it default interest following the annulment of the decision of 9 December 2010 continues until that interest has actually been paid. That argument stems from a confusion between the obligation to comply with the judgment of 16 December 2015, British Airways v Commission (T‑48/11, not published, EU:T:2015:988), and the action for non-contractual liability of the European Union that can be brought in order to implement it. Yet it is that action which is time-barred after five years from the occurrence of the event giving rise to it, in accordance with the first sentence of the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court under the first paragraph of Article 53 of the same statute.
48      It follows that the alleged continuance of the obligation on the Commission to pay the applicant default interest following the annulment of the decision of 9 December 2010 is irrelevant for the purposes of assessing whether the action for non-contractual liability of the European Union under Article 46 of the Statute of the Court of Justice of the European Union is time-barred.
49      To accept otherwise would, moreover, render meaningless the first sentence of the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union. Actions to establish non-contractual liability on the part of the European Union would then never be time-barred, even if the alleged aggrieved party never brought proceedings (see, by analogy, order of 4 August 1999, Fratelli Murri v Commission, T‑106/98, EU:T:1999:163, paragraph 28).
50      It is therefore appropriate to reject the present argument and to examine whether the Commission is right to rely on the expiry of the five-year limitation period provided for in the first sentence of the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union.
51      According to the case-law, that period begins to run once the requirements governing the obligation to provide compensation for damage are satisfied and, in particular, once the damage to be made good has materialised (see judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 34 and the case-law cited).
52      Contrary to what the Commission contends, it is not the infringement decision by which it unlawfully imposes a fine on the undertaking in question which is the cause of the alleged damage in a situation such as that in the present case. Such a decision is that in the separate situation in which that undertaking seeks compensation corresponding to the amount of bank guarantee costs that it has incurred to cover the amount of such a fine. In that situation, any infringement of EU law exists as soon as that decision is adopted and produces effects vis-à-vis that undertaking as soon as it is notified to it (see, to that effect, judgment of 21 April 2005, Holcim (Deutschland) v Commission, T‑28/03, EU:T:2005:139, paragraph 65).
53      Conversely, the payment of default interest constitutes a measure giving effect to a judgment annulling a measure, for the purposes of the first paragraph of Article 266 TFEU (see judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraph 68 and the case-law cited).
54      In a situation such as that in the present case, the object of which is compensation for damage corresponding to the amount of default interest due on the principal amount of a fine unduly paid, it is therefore the Commission’s alleged failure to pay to the person concerned default interest, under the first paragraph of Article 266 TFEU, which is the cause of the alleged damage. It follows that it is that failure which constitutes the ‘event’ within the meaning of the first sentence of the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union (see, to that effect, order of 4 May 2005, Holcim (France) v Commission, T‑86/03, EU:T:2005:157, paragraphs 40 and 51).
55      In the present case, the Commission’s alleged failure to take the necessary measures to comply with the judgment of 16 December 2015, British Airways v Commission (T‑48/11, not published, EU:T:2015:988), materialised on 8 February 2016, when it repaid the applicant the principal amount of the fine, plus the guaranteed return, but without granting it the default interest allegedly due.
56      It must therefore be held that the limitation period began to run on 8 February 2016.
57      In the absence of any act interrupting the limitation period alleged by the applicant, it follows that that period expired on 8 February 2021, that is to say, more than two months before the applicant submitted a prior request to the Commission, on 13 April 2021.
58      It follows that the applicant’s claim for compensation corresponding to the default interest allegedly due is time-barred to the extent that it is based on Article 268 and the second paragraph of Article 340 TFEU.
59      As regards the circumstance that the applicant may be deprived of a remedy as a result of the expiry of the limitation period, it is sufficient to recall that the right to bring an action for non-contractual liability of the European Union before the EU Courts can be exercised only under the conditions laid down in that regard by the provisions governing that action, including the limitation rules specific to it (see, to that effect, order of 18 July 2002, Autosalone Ispra dei Fratelli Rossi v Commission, C‑136/01 P, EU:C:2002:458, paragraph 26).
Compound interest
60      As the Commission notes, it is clear from the case-law that the capitalisation of default interest is strictly dependent upon the right to recover the default interest itself (see, to that effect, judgment of 10 October 2001, Corus UK v Commission, T‑171/99, EU:T:2001:249, paragraph 56).
61      The present request relates to compound interest, that is to say, the capitalisation of the default interest allegedly due. As such, it must be classified as purely ancillary to the request relating to the default interest itself. Since the latter has been rejected as inadmissible, the request relating to the compound interest must also be rejected.
62      That also applies to the default interest which the applicant requests in the alternative for the period from 8 February 2016 to the date on which the present application was lodged. After all, it is the default interest ‘that has accrued on the default interest amount’ allegedly due.
63      It follows from all the foregoing that the action, to the extent that it is based on Article 268 and the second paragraph of Article 340 TFEU, is inadmissible.
Admissibility of the action to the extent that it is based on Article 263 TFEU
64      The Commission contends, in essence, that the application for annulment under Article 263 TFEU against the contested acts is inadmissible. On the one hand, as the action is inadmissible to the extent that it is based on the first paragraph of Article 266 TFEU and on Article 268 and the second paragraph of Article 340 TFEU, the applicant has no legal interest in seeking the annulment of those acts.
65      On the other hand, the applicant is precluded from seeking annulment of the letter of 30 April 2021, since its action was brought after the expiry of the time limit for bringing proceedings. As for the letter of 2 July 2021, it is a purely confirmatory act and is therefore not actionable under Article 263 TFEU.
66      The applicant disputes the Commission’s line of argument. First, it claims that it will benefit from the annulment of the contested acts. That annulment would eliminate the adverse financial repercussions of the Commission’s refusal to grant it the interest owed to it.
67      Second, according to the applicant, the ground of inadmissibility based on the time-barring of the application for annulment under Article 263 TFEU ignores the fact that it challenges the letter of 30 April 2021 and the letter of 2 July 2021 taken together. It objects to the Commission’s decision and to the reasoning set out in both of those documents, the latter cross-referring to the conclusion reached in the former. The author of the letter of 2 July 2021 expressly stated that she had ‘taken note’ of the arguments contained in the applicant’s letter of 11 June 2021. However, those were new arguments, which responded to the points raised in the letter of 30 April 2021.
68      Moreover, according to the applicant, it cannot be regarded as time-barred merely because it reasonably engaged in two sets of correspondence with the Commission services and before that institution had confirmed its final position. Indeed, on 11 June 2021, its representatives replied to the letter of 30 April 2021 in order to persuade the Commission that the assessment in that document was incorrect.
69      The sixth paragraph of Article 263 TFEU provides for a two-month limitation period, which must be extended on account of distance by the single period of 10 days provided for in Article 60 of the Rules of Procedure.
70      That time limit for bringing proceedings is a matter of public policy, since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice (judgment of 23 January 1997, Coen, C‑246/95, EU:C:1997:33, paragraph 21, and order of 21 March 2018, Eco-Bat Technologies and Others v Commission, T‑361/17, not published, EU:T:2018:173, paragraph 31).
71      In the present case, it was by the letter of 30 April 2021 that the Commission rejected the applicant’s request for repayment of interest allegedly owed to it pursuant to the judgment of 16 December 2015, British Airways v Commission (T‑48/11, not published, EU:T:2015:988).
72      The present application, by which the applicant has sought annulment of the letter of 30 April 2021, was lodged at the Court Registry on 9 August 2021, that is to say, approximately one month after the expiry of the time limit for bringing proceedings.
73      It is true that the applicant submits that it raised new arguments in response to the letter of 30 April 2021 and challenges it together with the letter of 2 July 2021.
74      It is, however, settled case-law that, where an applicant lets expire the time limit for bringing an action against a decision unequivocally laying down a measure with legal effects affecting its interests and binding on it, it cannot start time running again by asking the institution concerned to reconsider its decision and bringing an action against the refusal confirming the decision previously taken (see judgment of 15 March 1995, Cobrecaf and Others v Commission, T‑514/93, EU:T:1995:49, paragraph 44 and the case-law cited; see also, to that effect, judgment of 6 July 1971, Germany v Commission, 2/71, EU:C:1971:78, paragraph 7).
75      It is also settled case-law that an action brought against an act purely confirming a previous measure which was not challenged within the prescribed period is inadmissible (see, to that effect, judgment of 9 December 2004, Commission v Greencore, C‑123/03 P, EU:C:2004:783, paragraph 39 and the case-law cited).
76      A measure is regarded as purely confirmatory if it contains no new factors as compared with a previous measure and was not preceded by a re-examination of the circumstances of the person to whom that measure was addressed (judgment of 31 May 2017, DEI v Commission, C‑228/16 P, EU:C:2017:409, paragraph 33; see also, to that effect, judgment of 10 December 1980, Grasselli v Commission, 23/80, EU:C:1980:284, paragraph 18). A measure responding to a request inviting the authority to re-examine the previous measure must be regarded as purely confirmatory where the request is not based on substantial new facts and the authority does not take a decision on such facts (judgment of 15 September 2011, CMB and Christof v Commission, T‑407/07, not published, EU:T:2011:477, paragraph 91).
77      Facts are to be classified as substantial new facts where, first, neither the applicant nor the administration was aware of, or in a position to be aware of, the fact in question when the earlier decision was adopted and, second, they are capable of substantially altering the applicant’s situation compared with that which gave rise to the earlier decision which has become definitive (judgment of 14 February 2019, RE v Commission, T‑903/16, EU:T:2019:96, paragraph 53).
78      In its letter of 11 June 2021, the applicant maintains that the assessment in the letter of 30 April 2021 is ‘clearly incorrect’. It is true that the applicant indicates that it put forward new arguments in that letter. However, it does not claim that the letter contains substantial new facts. An examination of that letter does not, moreover, reveal the existence of such facts. On the contrary, in the said letter, the applicant focuses on the following three points:
–        the starting date of the limitation period referred to in the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union, relying on case-law and facts known to the Commission;
–        its right to the payment of compound interest, which had already been invoked in the letter of 13 April 2021;
–        the possibility of basing an action on Article 266 TFEU alone, such an action not being subject to the limitation period referred to in the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union.
79      Nor does the letter of 2 July 2021, in which the Commission reiterated its refusal to pay the applicant the interest claimed, take a position on any substantial new fact. That document consists of two sentences:
‘Thank you for your letter of 11 June 2021. I have taken note of your arguments but confirm my position as expressed in [the letter of 30 April 2021], Ares(2021)2904003’.
80      The applicant itself states in the application that the letter of 2 July 2021 was written by the Commission ‘confirming its position as set out in [the letter of 30 April 2021]’.
81      It follows that the letter of 2 July 2021 must be regarded as a purely confirmatory act, which could neither start the time limit for bringing an action against the letter of 30 April
2021 which the applicant had let expire nor itself be the subject of an action for annulment.
82      A fortiori, the applicant cannot circumvent the time limit for bringing proceedings under the sixth paragraph of Article 263 TFEU by arguing that it contests the letter of 30 April 2021 and the letter of 2 July 2021 taken together.
83      It must therefore be concluded that the application for annulment under Article 263 TFEU is inadmissible.
84      The present action must therefore be dismissed in its entirety.
Costs
85      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1.      The action is dismissed.
2.      British Airways plc shall pay the costs.
Luxembourg, 22 December 2022.
E. Coulon
H. Kanninen
Registrar
President
*      Language of the case: English.