ORDER OF THE COURT (Seventh Chamber)
1 July 2021 (*)
(Article 155 of the Rules of Procedure of the Court of Justice – Failure to adjudicate – None – Article 158 of the Rules of Procedure – Interpretation of a judgment – Inadmissibility)
In Case C‑607/18 P‑OST,
APPLICATION under Article 155 of the Rules of Procedure of the Court of Justice, together with an application under Article 158 of those rules, brought on 26 June 2020,
NKT Verwaltungs GmbH, formerly nkt cables GmbH, established in Cologne (Germany),
NKT A/S, formerly NKT Holding A/S, established in Brøndby (Denmark),
represented by B. Creve and M. Kofmann, advokater,
applicants,
the other party to the proceedings being:
European Commission, represented by H. Van Vliet, S. Baches Opi and T. Franchoo, acting as Agents,
THE COURT (Seventh Chamber),
composed of A. Kumin, President of the Chamber, T. von Danwitz and P.G. Xuereb (Rapporteur), Judges,
Advocate General: J. Kokott,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after hearing the Advocate General,
makes the following
Order
1        By their application, NKT Verwaltungs GmbH, formerly nkt cables GmbH, and NKT A/S, formerly NKT Holding A/S, have applied for the Court to remedy its failures to adjudicate in the judgment of 14 May 2020, NKT Verwaltung and NKT v Commission (C‑607/18 P, not published, EU:C:2020:385), and, in the alternative, for interpretation of that judgment.
2        By that judgment, the Court of Justice set aside in part the judgment of the General Court of the European Union of 12 July 2018, NKT Verwaltungs and NKT v Commission (T‑447/14, not published, EU:T:2018:443), by which the General Court had dismissed the applicants’ action for, primarily, annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 – Power Cables), in so far as it concerned them, and, in the alternative, a reduction in the amount of the fine imposed on them by that decision. In that decision, the Commission had found that the applicants and 24 other companies
had participated in a cartel (‘the cartel’), constituting a single and continuous infringement of Article 101 TFEU and of Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) in the (extra) high voltage underground and/or submarine power cables sector (‘the infringement at issue’).
3        In the judgment of 14 May 2020, NKT Verwaltung and NKT v Commission (C‑607/18 P, not published, EU:C:2020:385), the Court of Justice, first, upheld in part the second subsection of the third part of the second ground of appeal, by which the applicants had, inter alia, challenged the General Court’s finding that they had participated in the allocation of underground power cable projects in the European Economic Area (EEA) and in the exchange of information concerning such projects during the period from 3 July 2002 to 17 February 2006, in respect of the period from 3 July 2002 to 21 November 2002. Second, the Court of Justice upheld the first part of the first ground of appeal and the third subsection of the second part of the second ground of appeal, which are not relevant to the present proceedings.
4        By contrast, in that judgment, the Court of Justice dismissed the appeal as to the remainder, rejecting, inter alia:
–        the fourth subsection of the second part of the second ground of appeal, by which the applicants took issue with the General Court’s conclusion that the Commission had not erred in finding that they had been aware, or at least should have been aware, of the existence of agreements on price, and of the existence of cover bids;
–        the fifth subsection of the second part of the second ground of appeal, by which the applicants claimed that the General Court had erred in law in rejecting their argument that they had not been aware
that the cartel covered projects involving underground power cables with voltages of 110 kV;
–        the second subsection of the third part of the second ground of appeal, by which the applicants challenged, inter alia, the General Court’s finding that they had participated in the allocation of underground power cable projects in the EEA and in the exchange of information concerning such projects during the period from 3 July 2002 to 17 February 2006, as regards the period from 22 November 2002 to 17 February 2006; and
–        the third subsection of the third part of the second ground of appeal, by which the applicants challenged the General Court’s rejection of their argument that they had not participated in, and had not been aware of, the monitoring of the implementation of price and allocation arrangements in respect of the projects in question.
5        In support of their application based on Article 155 of the Rules of Procedure of the Court of Justice, the applicants claim, as regards the fourth subsection of the second part of the second ground of appeal, referred to in the first indent of the preceding paragraph, that the Court of Justice failed to adjudicate on the head of claim relating to their liability for other producers’ agreements on price and cover bids, first, by failing to adjudicate on what they call the head of claim relating to the temporal scope of their awareness of those practices. According to the applicants, since the Court of Justice had rejected some of the considerations on which the General Court had relied in that regard, it should also have assessed whether and to what extent
that rejection affected the temporal scope of their liability for that aspect of the infringement at issue, that is to say, the duration of their awareness of the practices in question. Since the only evidence relied on by the Court of Justice dates from 10 February 2004, the applicants argue that they cannot be held liable in that regard before that date. Second, the applicants
claim that the Court of Justice failed to adjudicate on what they call the head of claim relating to their awareness of the separate arrangements in Spain, France and Italy, according to which the General Court had erred in law by failing to reply, stating adequate reasons, to the question whether and to what extent
they could have been aware of those separate arrangements
for underground power cable projects, which included agreements on price.
6        As regards the fifth subsection of the second part of the second ground of appeal, referred to in the second indent of paragraph 4 above, the applicants submit that the Court failed to adjudicate on the head of claim relating to their liability for other producers’ conduct with regard to projects involving underground power cables with voltages of 110 kV, in that it misunderstood and misrepresented their pleadings. In particular, they claim that the Court incorrectly held, in paragraph 193 of its judgment, that the applicants had not put forward any argument to suggest that, in the context of the cartel at issue, projects involving underground power cables with voltages of 110 kV differed from projects involving underground power cables with voltages above 110 kV.
7        As regards the second subsection of the third part of the second ground of appeal, referred to in the third indent of paragraph 4 above, the applicants claim that the Court failed to adjudicate on the head of claim relating to their participation in the allocation of underground power cable projects during the period from 22 November 2002 to 22 April 2003, in that it misunderstood and misrepresented their pleadings.
8        As regards, lastly, the third subsection of the third part of the second ground of appeal, referred to in the fourth indent of paragraph 4 above, the applicants submit that the Court failed to adjudicate on the head of claim relating to their awareness of other producers’ monitoring arrangements, by failing to adjudicate on what they call the head of claim relating to the temporal scope of that awareness. According to the applicants, given that the Court had held that the notes of a meeting which took place on 10 February 2004 constituted sufficient proof that they had, or could have, been aware of that aspect of the infringement at issue, it should also have assessed whether and to what extent
that conclusion affected the temporal scope of their liability for that aspect of the infringement. Since the only evidence relied on by the Court dates from 10 February 2004, the applicants argue that they cannot be held liable in that regard before that date.
9        In support of their application based on Article 158 of the Rules of Procedure, the applicants claim that the Court should provide an interpretation of its judgment in respect of the answers which it gave to the fourth subsection of the second part and the third subsection of the third part of the second ground of appeal, referred to in the first and fourth indents of paragraph 4 above respectively, as regards the temporal scope of the applicants’ awareness of the practices in question and their liability for those aspects of the cartel.
10      The Commission, in its written observations submitted in accordance with Article 155(2) and Article 158(5) of the Rules of Procedure, considers that both the application based on Article 155 of the Rules of Procedure and the application based on Article 158 of those rules are inadmissible and, in the alternative, unfounded. It also contends that
the Court should
order the applicants to pay the costs.
The application based on Article 155 of the Rules of Procedure
11      It should be borne in mind that Article 155(3) of the Rules of Procedure provides that, after the submission of observations by the other party regarding
an application made on the basis of paragraph 1 of that article, the Court, after hearing the Advocate General, is to decide both on the admissibility and on the substance of that
application.
12      Under Article 155(1) of the Rules of Procedure, if the Court has failed to adjudicate on a specific head of claim or on costs, any party wishing to rely on that may, within a month after service of the decision, apply to the Court to supplement its decision.
13      It is apparent from that provision that a failure to adjudicate results from the infringement by the Court of its obligation to rule on all the heads of claim submitted to it by the parties, including that relating to costs (order of 11 July 2019, Shindler and Others v Council, C‑755/18 OST, not published, EU:C:2019:618, paragraph 7).
14      In the present case, the Court did adjudicate
on all the heads of claim submitted to it by the applicants, including those referred to in the present application based on
Article 155 of the Rules of Procedure, which concern the heads of claim covered by the four subsections referred to in paragraph 4 above.
15      In the first place, it should be noted that the Court of Justice rejected, in point 3 of the operative part of its judgment, read in conjunction with paragraph 185 of the grounds thereof, the fourth subsection of the second part of the second ground of appeal, by which the applicants had objected to the General Court’s conclusion that the Commission had not erred in finding that they had been aware, or at least should have been aware, of the existence of agreements on price and of the existence of cover bids. Since the applicants did not argue, in their appeal, that they had been aware, or should be regarded as having been aware, of this only for a period shorter than that found by the Commission, namely the period from 3 July 2002 to 17 February 2006, it was not for the Court of Justice to rule on whether such a finding, assuming it to be established, was capable of calling into question the conclusions reached by the General Court as regards that aspect of the infringement at issue. In addition, the question whether the applicants had been
aware, or should have been aware, of the alleged separate arrangements
in Spain, France and Italy was of no importance in that regard, since the applicants had failed to establish that the General Court had erred in confirming the Commission’s assessment that the infringement at issue extended to those Member States.
16      In the second place, it must be noted that the Court of Justice rejected, in point 3 of the operative part of its judgment, read in conjunction with paragraph 195 of the grounds
thereof, the fifth subsection of the second part of the second ground of appeal, by which the applicants had claimed that the General Court had erred in law in rejecting their argument that they had not been aware that the cartel covered projects involving underground power cables with voltages of 110 kV. Thus, under the guise of claiming a failure to adjudicate, the applicants seek, in fact, to call into question the conclusion reached by the Court of Justice in that regard, which clearly is not the purpose of Article 155 of the Rules of Procedure.
17      In the third place, it is clear from point 3 of the operative part of the judgment of the Court, read in conjunction with paragraphs 227 to 243 of the grounds thereof, that the Court rejected the applicants’ head of claim relating to their participation in the allocation of underground power cable projects in the EEA and in the exchange of information concerning such projects during the period from 22 November 2002 to 22 April 2003. Thus, under the guise of claiming a failure to adjudicate, the applicants seek, in fact, to call into question the conclusion reached by the Court in that regard, which clearly is not the purpose of Article 155 of the Rules of Procedure, as has been pointed out in paragraph 16
above.
18      In the fourth place, it should be recalled that, as is apparent from point 3 of the operative part of its
judgment, read in conjunction with paragraphs 248 to 252 of the grounds thereof, the Court of Justice rejected the third subsection of the third part of the second ground of appeal, by which the applicants had challenged the General Court’s rejection of their argument that they had not participated in, and had not been aware of, the monitoring of the implementation of the price and allocation arrangements in respect of the projects in question. Since the applicants did not argue, in their appeal, that they had been aware, or should be regarded as having been aware, of this
only for a period shorter than that found by the Commission, namely the period from 3 July 2002 to 17 February 2006, it was not for the Court of Justice to rule on whether such a finding, assuming it to be established, was capable of calling into question the conclusions reached by the General Court as regards that aspect of the infringement at issue.
19      It follows from the foregoing that, contrary to the applicants’
assertions, the Court did not fail, in the judgment of 14 May 2020, NKT Verwaltung and NKT v Commission (C‑607/18 P, not published, EU:C:2020:385), to adjudicate on any head of claim submitted by them in their appeal.
20      It follows that the applicants’ application for the Court to remedy its failures to adjudicate in that judgment must be dismissed.
The application based on Article 158 of the Rules of Procedure
21      Article 158(1) of the Rules of Procedure provides that, in accordance with Article 43 of the Statute of the Court of Justice of the European Union, if the meaning or scope of a judgment or order is in doubt, the Court is to construe it on application by any party or any institution of the European Union establishing an interest therein.
22      It should be noted that, according to the Court’s case-law, an application for interpretation must, in order to be admissible, concern the operative part of the judgment or order in question, and the essential grounds thereof, and seek to resolve an obscurity or ambiguity that may affect the meaning or scope of that judgment or that order, in so far as it was required to decide the particular case before it (order of 13 December 2018, Hochmann Marketing GmbH v EUIPO, C‑118/18 P‑INT, not published, EU:C:2018:1007, paragraph 8).
23      In this case, it must be held that the present application
for interpretation does not meet those requirements.
24      In that regard, it is clear from point 3 of the operative part of the judgment in respect of which interpretation is sought, read in conjunction with paragraphs 175 to 185 of the grounds thereof, that the Court of Justice rejected, in its entirety, the fourth subsection of the second part of the second ground of appeal, relating to the General Court’s conclusion that the Commission had not erred in finding that the applicants had been aware, or at least should have been aware, of the existence of agreements on price, and of the existence of cover bids.
25      It is also clear from point 3 of the operative part of that judgment, read in conjunction with paragraphs 248 to 252 of the grounds thereof, that the Court rejected, in its entirety, the third subsection of the third part of the second ground of appeal, relating to the applicants’ participation in the monitoring of the implementation of price and allocation arrangements in respect of the projects in question and their awareness of those practices.
26      It was for the applicants to specify, in their application for interpretation, why the operative part of the judgment in respect of which interpretation is sought, and the essential grounds of that judgment, contains an ambiguity affecting its meaning and scope in so far as it decided the particular case before it.
27      In the present case, the applicants in no way explain how the judgment of the Court in respect of which interpretation is sought by them is, as regards the paragraphs referred to in their application, as set out in paragraph 9 above, vitiated by an ambiguity affecting its meaning and scope. In fact, by their application, the applicants ask the Court to rule on arguments which they had
not put forward in their appeal, as has been
noted in paragraphs 15 and 18 above. Such a request cannot come within the scope either of Article 43 of the Statute of the Court of Justice of the European Union or of Article 158(1) of the Rules of Procedure.
28      It follows that the application for interpretation must be dismissed as being inadmissible.
Costs
29      Under Article 138(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. Since the Commission has applied for costs and the applicants have been unsuccessful, they must be ordered to pay the costs.
On those grounds, the Court (Seventh Chamber) hereby orders:
1.      The application under Article 155(1) of the Rules of Procedure of the Court of Justice, together with the application for interpretation under Article 158 of those rules, brought by NKT Verwaltungs GmbH and NKT A/S on 26 June 2020, are dismissed.
2.      NKT Verwaltungs GmbH and NKT A/S shall pay the costs.
Luxembourg, 1 July 2021.
A. Calot Escobar
A. Kumin
Registrar
President of the Seventh Chamber
*      Language of the case: English.