JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
12 May 2016 (*)
(Competition — Agreements, decisions and concerted practices — Market in industrial plastic bags — Action for annulment — Challengeable act — Admissibility — Action for damages — Default interest — Concept of a debt which is certain, of a fixed amount and due — Proportionality — Legal certainty — Principle that penalties must be specific to the individual and to the offence — Lack of legal basis — Article 266 TFEU — Causal link)
In Case T‑669/14,
Trioplast Industrier AB, established in Smålandsstenar (Sweden), represented by T. Pettersson and A. Johansson, lawyers,
applicant,
v
European Commission, represented by V. Bottka, L. Parpala and P. Rossi, acting as Agents,
defendant,
APPLICATION, first, for annulment of the decision allegedly contained in the letter of the Commission of 3 July 2014 in case COMP/38.354 (Industrial bags — Trioplast Industrier AB) and, secondly, for damages under the second paragraph of Article 340 TFEU,
THE GENERAL COURT (Seventh Chamber),
composed of M. van der Woude (Rapporteur), President, I. Wiszniewska-Białecka and I. Ulloa Rubio, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written part of the procedure and further to the hearing on 19 November 2015,
gives the following
Judgment
Background to the dispute
1        In 1999, the applicant, Trioplast Industrier AB, acquired Silvallac SA, through its subsidiary Trioplanex France SA, from Nyborg Plast International A/S, a company incorporated under Danish law, subsequently renamed FLS Plast A/S. The latter is a subsidiary of the group controlled by FLSmidth & Co. A/S (‘FLSmidth’).
2        The transfer took place on 19 January 1999, with retroactive effect from 1 January 1999. In July 1999, Silvallac was renamed Trioplast Wittenheim SA by the applicant.
3        On 30 November 2005 the Commission of the European Communities adopted Decision C(2005) 4634 final, as amended on 7 December 2005, in case COMP/38.354 — Industrial bags (‘the 2005 decision’), in which it found that several undertakings in the industrial plastic bag sector had, in breach of Article 81 EC, participated in agreements or concerted practices of an anti-competitive nature extending to Belgium, Germany, Spain, France, Luxembourg and the Netherlands, from January 1982 to June 2002.
4        Among the addressees of the 2005 decision was Trioplast Wittenheim, which the Commission regarded as having been directly involved in the infringement from 6 January 1982 to 26 June 2002. The applicant was also identified, with Trioplast Wittenheim, as belonging to the same economic entity responsible for the infringement from 1999 to 2002. FLS Plast and FLSmidth were also addressees of that decision, having formed an economic unit with Trioplast Wittenheim from 1990 to 1999.
5        Article 2, first paragraph, point (f), of the operative part of the decision of 2005 imposed the following fines:
‘[Trioplast Wittenheim]: EUR 17.85 million. Of this amount, [FLSmidth] and [FLS Plast] shall be jointly and severally liable for the sum of EUR 15.30 million and [the applicant] shall be jointly and severally liable for the sum of EUR 7.73 million.’
6        It was also stated in the third and fourth paragraphs of Article 2 of the 2005 decision that:
‘The fines shall be paid in euros, within three months of the date of the notification of this Decision, to the following account: ... After expiry of that period, interest shall automatically be payable at the interest rate applied by the European Central Bank to its main refinancing operations on the first day of the month in which this Decision is adopted, plus 3.5 percentage points, namely 5.56%.’
7        The 2005 decision was notified to the applicant by letter dated 13 December 2005 and was received on 14 December 2005.
8        By application lodged at the Court Registry on 9 February 2006, the applicant brought an action against the 2005 decision. That case was registered as Case T‑40/06.
9        At the same time, FLSmidth and FLS Plast lodged at the Court Registry on 24 February 2006 two actions seeking annulment of the 2005 decision. Those actions were lodged under the case numbers T‑64/06 and T‑65/06.
10      After having concluded an agreement with FLSmidth and FLS Plast, the applicant provided a bank guarantee on 30 March 2006 in the sum of EUR 4.87 million.
11      By its judgment of 13 September 2010 in Trioplast Industrier v Commission (T‑40/06, ECR, ‘the 2010 judgment’, EU:T:2010:388), the Court found that the 2005 decision had to be annulled ‘in so far as the starting amount of the fine imposed on the applicant was based on the market share achieved by Trioplast Wittenheim in the reference year 1996’.
12      Furthermore, in the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), the Court accepted the applicant’s arguments that because the combined value of the sums for which the applicant, on the one hand, and FLSmidth and FLS Plast, on the other, were held to be jointly and severally liable in respect of the fine imposed on Trioplast Wittenheim was greater than the amount of that fine, the contested decision failed to define the precise amount of the fine which Trioplast Wittenheim would ultimately have to pay. In those circumstances, the Court held that, in linking the amount actually recovered from the applicant to the amounts recovered from FLSmidth and FLS Plast, and vice versa, the Commission had imposed de facto joint and several liability on the applicant, on the one hand, and on FLSmidth and FLS Plast, on the other, even though those undertakings had never together formed a joint economic unit.
13      In paragraph 170 of the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), the Court held, inter alia, that:
‘Article 2, first paragraph, point (f), of the contested decision fails to indicate the share which falls to the applicant, whilst at the same time allowing the Commission full discretion in calling on the respective joint and several liabilities of the successive parent companies which never together formed an economic unit. That provision is therefore inconsistent with the obligation which rests upon the Commission, in accordance with the principle of legal certainty, to enable the applicant to know for certain the exact amount of the fine which it must pay in respect of the period for which it is held jointly and severally liable with Trioplast Wittenheim for the infringement. The contested decision thus breaches both the principle of legal certainty and the principle that penalties should be specific to the offender and to the offence.’
14      In paragraph 174, the Court held as follows:
‘Given that the other elements which are necessary to calculate the share falling to the applicant, … including in particular the amount ascribed to the other parent companies of Trioplast Wittenheim, have not become final and cannot be established in the present proceedings, it will fall to the Commission, pursuant to its duty under Article 266 TFEU to take the necessary measures to comply with the present judgment, to determine the share falling to the applicant by reference to the necessary elements, once they are final.’
15      Consequently, the Court, on the one hand, annulled Article 2, first paragraph, point (f), of the 2005 decision, ‘in so far as it relates to [the applicant]’, and on the other, in the exercise of its unlimited jurisdiction, set at ‘EUR 2.73 million the amount ascribed to [the applicant], on the basis of which its share of the joint and several liabilities of the successive parent companies for payment of the fine imposed on Trioplast Wittenheim SA must be determined’.
16      The Court dismissed the remainder of the action.
17      By its letter of 25 February 2011, the Commission informed the applicant of the two options available to it following the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388).
18      First, the Commission proposed that the applicant maintain the bank guarantee, reducing it to EUR 2.73 million plus interest. That guarantee could also be replaced by a new guarantee for the same amount issued by another AA-rated bank with its registered office within the European Union. Depending on the judgments in Cases T‑64/06 and T‑65/06, the Commission undertook to adjust the joint and several liability of all the undertakings concerned.
19      Secondly, the Commission gave the applicant the option of making a provisional payment of the amount set by the Court in the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), plus default interest. If applicable, any overpayment, including bank interest, would be refunded to the applicant.
20      By two separate letters of 18 and 30 March 2011, the applicant requested the Commission, inter alia, to accept the withdrawal of the bank guarantee in the light of the annulment by the Court of the 2005 decision in so far as it related to the applicant.
21      By its letter of 9 June 2011, the Commission maintained that the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), had not completely annulled the 2005 decision in so far as it related to the applicant. The Commission enclosed with its letter of 9 June 2011 a copy of the letter addressed to the guarantor confirming the reduction of the bank guarantee to an amount of EUR 2.73 million plus interest from 17 March 2006.
22      By its letter of 5 July 2011, the applicant repeated its line of argument that the Court had annulled in its entirety the 2005 decision in so far as it related to the applicant.
23      In its judgments of 6 March 2012 in FLS Plast v Commission (T‑64/06, EU:T:2012:102) and in FLSmidth v Commission (T‑65/06, EU:T:2012:103) (‘the judgments of the Court in the FLS cases’), the Court, inter alia, reduced to EUR 14.45 million the amount of the fine imposed on Trioplast Wittenheim for which FLS Plast and FLSmidth were held to be jointly and severally liable pursuant to Article 2, first paragraph, point (f), of the 2005 decision.
24      By its letter of 30 March 2012, the Commission informed the applicant that it took the view that ‘the fine imposed on [the applicant] has become definitive’ and requested it to pay the amount of EUR 3 322 979.93, that is to say, the amount of EUR 2.73 million plus default interest at a rate of 3.56% from 17 March 2006 to the value date of 20 April 2012.
25      By its letter of 11 April 2012, the applicant claimed, inter alia, that default interest could not continue to accrue since the 2005 decision had been annulled by the Court in so far as it related to the applicant.
26      On 16 May 2012, FLSmidth and FLS Plast lodged appeals against the judgments of the Court in the FLS cases. Those appeals were lodged under case numbers C‑238/12 P and C‑243/12 P.
27      By its letter of 4 June 2012, the Commission contended that the 2005 decision had not been annulled in its entirety. According to the Commission, in the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), the Court had upheld the joint and several liability of the applicant for the payment of Trioplast Wittenheim’s fine. It submits that the Court did not annul that decision in respect of the finding of an infringement for which the applicant was held to be jointly and severally liable and of the interest due in the event of late payment.
28      By its letter of 29 June 2012, the applicant maintained that the 2005 decision had been annulled in its entirety in so far as that decision related to it and that the imposition of default interest was not justified.
29      By its letter of 19 July 2012, the Commission confirmed that it still had a claim against the applicant in the amount of EUR 2.73 million plus default interest and that it required the bank guarantee to be maintained. It further stated that it would contact the applicant again following the judgments of the Court of Justice in Cases C‑238/12 P and C‑243/12 P.
30      By its letter of 17 August 2012, the applicant expressed its wish to make a provisional payment in the amount of EUR 2.73 million but not the default interest. It thus sought to terminate the bank guarantee and put an end to the charges related thereto. The applicant also indicated that it reserved the right to reclaim from the Commission any amount overpaid as a result of the judgments to be delivered by the Court of Justice in Cases C‑238/12 P and C‑243/12 P.
31      By its letter of 30 August 2012, the Commission noted that proposal, stating, however, that it was only a partial provisional payment since no payment of default interest had been made.
32      By its letter of 20 September 2012, addressed to the guarantor bank, the Commission ordered the reduction of the amount of the bank guarantee to EUR 632 920.21 plus default interest accruing on that sum.
33      By its letter of 28 September 2012, the applicant requested an amendment to the wording of the bank guarantee in order to reflect its concerns as to the lawfulness of the Commission’s request for payment of default interest.
34      By its letter of 10 October 2012, the Commission refused to make any amendment to the wording of the bank guarantee.
35      By its letter of 11 October 2012, the applicant notified its acceptance of the latest wording of the bank guarantee but maintained its position as to the provisional nature of the payment of the sum of EUR 2.73 million and the lack of justification for the request for payment of default interest.
36      On 7 August 2013, Trioplast Wittenheim was liquidated.
37      By its judgments of 30 April 2014 in FLSmidth v Commission (C‑238/12 P, ECR, EU:C:2014:284) and of 19 June 2014 in FLS Plast v Commission (C‑243/12 P, ECR, EU:C:2014:2006) (‘the judgments of the Court of Justice in the FLS cases’), the Court of Justice dismissed the appeals brought by FLSmidth and FLS Plast.
38      By its letter of 3 July 2014 (‘the contested letter’), the Commission put the applicant on notice to pay interest amounting to EUR 674 033.32 with the value date of 15 July 2014. That interest was calculated on the basis of the amount of EUR 2.73 million to which default interest had been added at the rate of 3.56% from 17 March 2006 until 17 September 2012, and of the amount of EUR 632 920.21 to which default interest had been added at a rate of 3.56% from 18 September 2012 until 15 July 2014.
39      The applicant paid the contested amount on 14 July 2014, while expressing reservations as to the existence of an obligation to pay.
40      By its letter of 23 July 2014, the Commission confirmed to the guarantor that the payment had been made and, consequently, that the latter was released from its obligations under the bank guarantee.
Procedure and forms of order sought
41      By application lodged at the Court Registry on 15 September 2014, the applicant brought the present action.
42      On 12 December 2014, the Commission lodged a single written pleading with the double heading ‘Objection to admissibility as regards the action for annulment and defence on the action for damages’.
43      The applicant claims that the Court should:
–        first, principally,
–        annul the contested letter;
–        cancel or reduce the interest of EUR 674 033.32;
–        order the Commission to reimburse the expenses of EUR 4 686.64 incurred in providing security for payment of the default interest;
–        secondly, in the alternative, pursuant to the second paragraph of Article 340 TFEU:
–        order the Commission to pay damages in the amount, or part of the amount, of the default interest of EUR 674 033.32;
–        order the Commission to pay damages in the amount of the charges of EUR 4 686.64 incurred in order to guarantee the interest payment;
–        thirdly, order the Commission to pay damages, pursuant to the second paragraph of Article 340 TFEU, in the amount of all or part of the charges of EUR 22 783.90 incurred in providing a bank guarantee following the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388);
–        fourthly, order the Commission to pay interest on such sums as are found to be due;
–        fifthly, order the Commission to pay the costs.
44      The Commission contends that the Court should:
–        declare the application for annulment inadmissible;
–        dismiss the claim for damages;
–        order the applicant to pay the costs.
Law
45      In the present action, the applicant seeks, in essence, the annulment of the contested letter and, in the alternative, damages in the amount, or part of the amount, of the default interest, namely the interest that it paid as a result of having provided a bank guarantee instead of paying the fine immediately. It also seeks, by way of damages, the refund of the bank charges incurred in providing that guarantee. By its fourth head of claim, the applicant asks the Court to order the Commission to pay interest on all of those amounts.
46      The Commission submits that the application for annulment is inadmissible and must, in any event, be dismissed as unfounded, in the same way as the application for damages.
Admissibility of the claim for annulment
47      The Commission submits, first, that the contested letter does not constitute a challengeable act because it does not contain any new element on the basis of which an action may be brought. According to the Commission, that letter merely requested payment of the default interest accruing on a fine which had become final following the judgments of the Court of Justice in the FLS cases. The accrual of default interest, it submits, flows automatically from the procedure under 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) (‘the implementing regulation’), and Article 2 of the 2005 decision. The Commission stresses that the principal purpose of that letter was to offer the applicant an alternative in respect of the final choice of the form in which it preferred the Commission to collect the default interest, namely, by way of a payment or by enforcement of the guarantee, which, in its view, did not affect the applicant’s position.
48      Secondly, the Commission also contends that the applicant did not present its case before the correct judicial forum and that, in accordance with the provisions of the fourth paragraph of Article 299 TFEU, it should have brought proceedings before the national court with jurisdiction to review the regularity of the measures of enforcement.
49      Thirdly, the Commission submits that the applicant was, in any event, time-barred from challenging the rate of interest laid down in Article 2 of the 2005 decision and the rate of default interest set out in the letter of 13 December 2005.
50      The applicant argues that the admissibility of the application for annulment cannot be challenged.
51      First of all, the applicant considers that the contested letter is ‘of a final character’ because that letter put it on notice for the first time to pay a fine the amount of which was exact and definite following the appeals lodged against the judgments of the Court in the FLS cases. Furthermore, that letter states, for the first time, that the Commission would call in the bank guarantee if payment was not made before 15 July 2014.
52      Secondly, the applicant submits that the Commission did not have a ‘valid’ claim against it until it decided in the contested letter to set out the exact amount of the fine imposed on its subsidiary for which it was held jointly and severally liable. Since the 2005 decision, in its view, did not impose such an amount, it was not enforceable and could not serve as a basis for default interest. According to the applicant, the 2005 decision was annulled in full by the Court in the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), in so far as the decision related to the applicant. The contested letter therefore constituted the first act in which the Commission notified the applicant of a request for payment stating the amount that it had to pay and could not, therefore, be regarded as a mere application of the implementing regulation.
53      Thirdly, the applicant contends that, in the absence of a ‘valid’ decision, the Commission did not have a ‘valid’ claim, that is to say, one that was certain and of a fixed amount within the meaning of the implementing regulation. In those circumstances, the Commission’s agent did not have power to adopt the contested letter.
54      Fourthly, the applicant submits that the fact that the Commission had previously notified it of estimates is without relevance since those estimates were only provisional and the Commission itself agreed that it was necessary to await the outcome of the appeals against the judgments of the Court in the FLS cases.
55      Fifthly, the applicant notes that the national courts never have jurisdiction either to annul acts adopted by the Commission or to order the Commission to pay damages and interest.
56      As a preliminary point, it should be noted at the outset that the applicant’s reasoning rests, in large part, on the argument that, in the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), the Court annulled the 2005 decision in full in so far as it related to the applicant (see, in particular, paragraphs 52 and 53 above). In those circumstances, first, the applicant submits, the Commission does not have a claim which is certain and of a fixed amount in respect of the applicant and, secondly, it must adopt a new decision, something which it failed to do before the adoption of the contested letter.
57      In that regard, it should be noted that it is apparent from the wording of Article 31 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1), that the unlimited jurisdiction conferred on the EU judicature in the application of the rules on competition, which allows it to cancel, reduce or increase fines imposed by the Commission, relates to, and is limited to, the fine originally imposed by the Commission (judgment of 14 July 1995 in CB v Commission, T‑275/94, ECR, EU:T:1995:141, paragraph 58).
58      It should further be noted that, in matters of competition law, the EU judicature does not have power to impose a fine; it has unlimited jurisdiction solely to rule on fines set by Commission decisions (judgment in CB v Commission, cited in paragraph 57 above, EU:T:1995:141, paragraph 59).
59      It must therefore be held that the EU judicature is not competent, when exercising the powers conferred on it by Article 261 TFEU and Article 31 of Regulation No 1/2003, to replace the fine imposed by the Commission by a new, legally distinct fine (judgment in CB v Commission, cited in paragraph 57 above, EU:T:1995:141, paragraph 60).
60      In the present case, it is unequivocally clear from paragraph 172 of the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), that the Court took the view that, inasmuch as the Commission had made a manifest error of assessment in taking, with regard to the applicant, 1996 as the reference year for the determination of the gravity of the infringement, it was incumbent upon it, in the exercise of its unlimited jurisdiction, to determine a new starting amount on which to base the calculation of the limit up to which the applicant had been held jointly and severally liable for payment of the fine imposed on its subsidiary. That amount, thus set by the Court in the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), is therefore not a new fine that is legally distinct from that which the Commission imposed in the 2005 decision.
61      Admittedly, it is apparent from paragraph 2 of the operative part of the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), that the Court established a maximum amount on the basis of which the applicant’s share of the joint and several liabilities of the successive parent companies for payment of the fine imposed on its subsidiary was to be determined. However, that judgment and the judgments of the Court in the FLS cases left the Commission no discretion in determining the final amount on which to base the calculation of the final amount up to which the applicant was to be held jointly and severally liable for payment of the fine imposed on its subsidiary. In those circumstances, there is no doubt that the Commission was able to make a finding of a claim which was ‘certain’ and ‘of a fixed amount’ following the judgments of the Court in the FLS cases. It should also be stated, with respect to the argument that the Commission itself acknowledged that it was necessary to await the outcome of the appeals lodged against the judgments of the Court in the FLS cases, that it is apparent from Article 278 TFEU that the lodging of an appeal does not have suspensory effect.
62      The applicant’s argument that, in the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), the Court annulled in full the 2005 decision in so far as it related to the applicant must therefore be rejected.
63      First of all, in order to rule on the Commission’s objection to admissibility, it should be recalled that, according to settled case-law, only measures which produce binding legal effects and are capable of affecting the interests of the applicant by bringing about a distinct change in its legal position constitute measures that are challengeable by an action for annulment under Article 263 TFEU (judgments of 11 November 1981 in IBM v Commission, 60/81, ECR, EU:C:1981:264, paragraph 9, and of 6 December 2007 in Commission v Ferriere Nord, C‑516/06 P, ECR, EU:C:2007:763, paragraph 27).
64      It is also settled case-law that, in order to ascertain whether a measure the annulment of which is sought is open to challenge, it is necessary to look to its substance, as the form in which it is cast is, in principle, immaterial (judgments in IBM v Commission, cited in paragraph 63 above, EU:C:1981:264, paragraph 9; of 24 March 1994 in Air France v Commission, T‑3/93, ECR, EU:T:1994:36, paragraph 57; and of 17 April 2008 in Cestas v Commission, T‑260/04, ECR, EU:T:2008:115, paragraph 68).
65      It is therefore appropriate to establish whether, in the present case, the Commission, by the contested letter, adopted an act producing binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in its legal position for the purposes of Article 263 TFEU.
66      By the contested letter, following the judgments of the Court of Justice in the FLS cases, the Commission gave the applicant notice to pay, on the one hand, EUR 632 920.21 in respect of default interest from 17 March 2006 to 17 September 2012, the date on which the applicant paid the principal amount of the fine, namely EUR 2.73 million, and, on the other, default interest for the amount remaining due from that date. Since no payment had been made on 15 July 2014, the Commission informed the applicant that it would call in the bank guarantee in a total amount of EUR 674 033.32. It is apparent from the attached table that the interest rate used for the calculation of the default interest was 3.56%.
67      It is therefore necessary to establish whether, by claiming, in the contested letter, the payment of default interest at the rate of 3.56% from 17 March 2006 on the amount of the fine set out in the 2005 decision, as subsequently amended by the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), and the judgments of the Court in the FLS cases, confirmed on appeal, the Commission introduced a new element capable of producing binding legal effects affecting the interests of the applicant by bringing about a distinct change in its legal position.
68      In that regard, first of all, it should be noted that the 2005 decision, as subsequently amended by the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), and the judgments of the Court in the FLS cases, set at EUR 2.73 million the amount of the fine imposed on the applicant. Moreover, Article 2 of the 2005 decision stated clearly that the fine was to be paid in euros within three months following the notification thereof, and that default interest, at a rate of 5.56%, would be payable upon expiry of that three-month period in the event of non-payment of the fine.
69      Secondly, it should be noted that, by its letter of 13 December 2005 notifying the 2005 decision, the Commission informed the applicant that it would not enforce the 2005 decision in the event that an action was brought against that decision, as long as the applicant provided an acceptable bank guarantee. In that case, a rate of interest of 3.56% would be applied to the amount of the fine as set out in the 2005 decision.
70      Thirdly, by its letter of 25 February 2011 following the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), the Commission invited the applicant either to reduce the bank guarantee which it had provided on 30 March 2006 to the new amount established by the Court in the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), namely EUR 2.73 million, or to make a provisional payment of EUR 3 215 940, including default interest. It is quite evident from that letter that the default interest relating to the provision of a bank guarantee was calculated on the basis of an interest rate of 3.56%, applied to the new amount defined by the Court in the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), for the period from 17 March 2006 to 15 March 2011. The Commission also stated clearly that it would redefine, where applicable, the amounts of the fine to be imposed jointly and severally on the applicant and on FLS Plast and FLSmidth following the judgments of the Court in the FLS cases.
71      Fourthly, by its letter of 30 March 2012, the Commission informed the applicant that, following the judgments of the Court in the FLS cases, there was no need to redefine the amounts of the fine imposed jointly and severally on the applicant and on FLS Plast and FLSmidth. In those circumstances, it asked the applicant to make a payment in a total amount of EUR 3 322 979.93, including EUR 592 979.93 by way of default interest for the period from 17 March 2006 to 20 April 2012.
72      It must therefore be stated that the Commission, by the contested letter, merely confirmed the situation resulting from, on the one hand, the 2005 decision, as subsequently amended by the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), and the judgments of the Court in the FLS cases, and, on the other, the letters of 13 December 2005, of 25 February 2011 and of 30 March 2012. The contested letter merely confirms the conditions to which the Commission made the suspension of payment of the fine subject during the legal proceedings, without setting out any new information or disclosing a position taken by the Commission that, on the one hand, the 2005 decision, as subsequently amended by the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), as well as by the judgments of the Court in the FLS cases, and, on the other, the letters of 13 December 2005, 25 February 2011 and 30 March 2012 had not already expressly made clear.
73      That finding cannot be called into question by the applicant’s arguments. The only elements capable of leading to a decision which the applicant challenges are, first, the fact that the contested letter places the applicant on notice to pay the fine, secondly, the fact that it sets a deadline for payment and, thirdly, the fact that it established for the first time the final amount to be paid.
74      First of all, with respect to the arguments that the fact that the contested letter, for the first time, on the one hand, placed the applicant on notice to pay and, on the other, imposed a deadline for proceeding with the payment, is capable of rendering the action admissible, it should be noted that, as has been set out in paragraphs 57 to 62 above, the amount of the fine imposed on the applicant was established in the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), and the judgments of the Court in the FLS cases, without the Commission having any further discretion in that regard. The 2005 decision, as amended, was therefore, in any event, enforceable following the judgments of the Court in the FLS cases, contrary to what the applicant avers. The fact that appeals were then lodged does not call into question that finding, since actions before the EU judicature do not have suspensory effect.
75      Furthermore, it should be borne in mind that a decision which imposes a pecuniary obligation, even though not final, is enforceable and must therefore, in principle, be complied with immediately. Where, as in the present case, the essential condition for suspension of the payment of the fine disappears, namely the existence of appeals against the judgments of the Court in the FLS cases pending before the Court of Justice, the decision becomes binding and final on the addressee and the fine must be paid immediately (order of 12 March 2012 in Universal v Commission, T‑42/11, EU:T:2012:122, paragraph 35).
76      Secondly, the fact that the Commission’s various letters set out only provisional amounts, while the contested letter established the specific amount of the interest actually demanded of the applicant following the proceedings, is likewise not capable of rendering admissible the present application for annulment. The contested letter is not itself decision-making in character with regard, in particular, to the setting of the rate of default interest and to the determination of the fine imposed on its subsidiary for which the applicant is held to be jointly and severally liable. The mere calculation of the specific amount of interest liable to be actually claimed from the applicant flows from a purely arithmetic calculation and does not require a decision (see, to that effect, order of 20 June 2005 in Cementir — Cementerie del Tirreno v Commission, T‑138/04, EU:T:2005:245, paragraphs 55 and 56).
77      It is not appropriate, moreover, to accept the applicant’s argument that the refusal to accept that the contested letter could form the subject matter of an action under Article 263 TFEU would preclude the judicial review of the final amount of the fine. On the one hand, it should be noted that the enforcement of a Commission decision containing a pecuniary obligation is governed by Article 299 TFEU, which, in its fourth paragraph, provides for effective national judicial protection, without prejudice to the possibility of submitting requests for a preliminary ruling to the Court of Justice under Article 267 TFEU. On the other hand, an action for damages, under the second paragraph of Article 340 TFEU, could be brought in the event of a wrongful act by the institution or its agents.
78      In the light of the foregoing, it must be held that the contested letter does not constitute an act capable of being the subject of an action for annulment within the meaning of Article 263 TFEU. The action for annulment must therefore be dismissed as being inadmissible.
The action for damages
79      With respect to the issue of the Commission’s purportedly unlawful conduct, the applicant refers to the five pleas in law put forward in the context of the application for annulment.
80      By its first plea, alleging a lack of legal basis, the applicant submits in particular that the Commission, in having refrained from adopting a new decision in respect of the exact amount of the fine imposed on its subsidiary for which it was held to be jointly and severally liable, had no legal basis allowing it to place the applicant on notice to pay the default interest. It notes that, even if the Court were to find that the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), had not annulled in full the 2005 decision in so far as it related to the applicant, that decision cannot make it possible to calculate interest in accordance with the conditions set out in the implementing regulation.
81      By the second plea, alleging breach of essential procedural requirements and lack of competence, the applicant submits that the Commission, through its authorising officer or accounting officer, was not entitled to place it on notice to pay the default interest without the College of Commissioners having first taken a final decision as to the exact amount of the fine imposed on its subsidiary for which it was held to be jointly and severally liable. It notes, in that regard, that the contested letter cannot be considered to be a mere administrative or management measure, as was the position in the case which gave rise to the judgment in CB v Commission, cited in paragraph 57 above (EU:T:1995:141, paragraph 60), since neither the 2005 decision nor the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), established the exact amount of that fine.
82      By its third plea, alleging infringement of the principle of legal certainty and of the principle that penalties must be specific, the applicant claims to have been encouraged to provide a bank guarantee. According to the applicant, the infringement of the principle of legal certainty and of the principle that penalties must be specific rendered the 2005 decision invalid, in that it created a de facto joint and several liability between Trioplast Wittenheim’s successive parent companies, and thus dissuaded it from immediately paying the amount of the fine imposed upon its subsidiary for which it was held to be jointly and severally liable.
83      By the fourth plea in law, alleging infringement of Article 266 TFEU, first of all, the applicant submits that the Commission did not draw the correct conclusions from the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388). In so far as the Court held that the 2005 decision infringed the principle of legal certainty and the principle that penalties should be specific to the offender and the offence, the Commission ought, it contends, to have released the bank guarantee and adopted a new decision. In the second place, the failure to reduce the bank guarantee to the maximum amount laid down by the Court in its 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), before June 2011, was not based on any valid reason.
84      By its fifth plea in law, the applicant claims that the Commission infringed the principle of proportionality by ordering it to pay interest on an amount which was never clearly established and which relates to a fine that had been annulled in its entirety.
85      Inasmuch as the contested letter confirmed a number of earlier irregularities, the applicant is asking the Court to assess, as part of the application for damages, the entirety of the Commission’s conduct and acts since the 2005 decision. It also puts forward in that context, in support of its fourth plea, a specific argument by which, essentially, it repeats its assertion that Article 266 TFEU was infringed, inasmuch as the Commission unlawfully refused to release the bank guarantee following the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388). In the alternative, the applicant submits that, in any event, the Commission ought to have released the bank guarantee following the provisional payment of the amount of EUR 2.73 million made in August 2012.
86      With regard to damages and causation, first of all, the applicant again submits that the absence of a penalty specific to the offender and the offence rendered it highly risky for the applicant to make any provisional payment after the 2005 decision. According to the applicant, even if it had made a provisional payment in the amount of EUR 2.55 million, namely the minimum amount of the range set out in that decision, the risk remained that it might pay more than was necessary in the event that the Court should reduce Trioplast Wittenheim’s fine. Secondly, it submits that the Commission’s refusal to release the bank guarantee following the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), directly caused the charges subsequently incurred as a result of the provision of that guarantee.
87      First of all, the Commission contends in particular that it correctly fulfilled the obligations stemming from the relevant judgments. It notes that the part of the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), amending the amount of the fine imposed on its subsidiary for which it was held to be jointly and severally liable became final automatically after the judgments of the Court of Justice in the FLS cases had been delivered, without the Commission ever subsequently having been in a position to alter it. The Commission also submits that, as is apparent from the judgment in CB v Commission, cited in paragraph 57 above (EU:T:1995:141), following a reduction in the amount of the fine, it is entitled to claim interest on the part of the fine which has been upheld by the Court.
88      Secondly, the Commission notes that the provisions of the implementing regulation relating to the certainty of a debt do not preclude the imposition of default interest in the event that an action is brought, since those proceedings have no suspensory effect pursuant to Article 278 TFEU. Nor is the possibility of imposing default interest affected where there is a judgment ordering the Commission to give due effect to future judgments. In essence, paragraph 2 of the operative part of the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), created a situation similar to that of an appeal during which the amount of the fine must provisionally be covered.
89      Thirdly, the Commission submits that it was entitled to claim the amount of the fine imposed on the applicant’s subsidiary for which the applicant was held to be jointly and severally liable and the interest payable on that amount from the due date specified in the 2005 decision after the judgments of the Court in the FLS cases had been delivered. Although no appeal was brought against the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), the Commission was ordered to await the outcome of the judgments of the Court in the FLS cases in order to draw the appropriate conclusions. Those judgments automatically had the effect of maintaining the fine imposed on the applicant at EUR 2.73 million, without the Commission being able subsequently to alter that amount.
90      Fourthly, the Commission considers that there is no causal link between its acts and the damage alleged. If the applicant had made a provisional payment earlier, the charges incurred as a result of the bank guarantee could have been lower or even avoided. There is thus no fundamental difference with the case which gave rise to the judgment of 21 April 2005 in Holcim (Deutschland) v Commission (T‑28/03, ECR, EU:C:2005:139), since the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), merely reduced the amount of the fine, which continued to exist.
91      Fifthly, the Commission submits that, even if the applicant had been encouraged to provide a bank guarantee instead of making an immediate payment of the amount of the fine imposed upon its subsidiary for which it was held to be jointly and severally liable, the damage flowing from that situation cannot validly be relied upon because it never materialised, since the combined total of the amount of the fine for which the parent companies of Trioplast Wittenheim were held to be jointly and severally liable was less than the amount of the fine imposed on that subsidiary following the judgments of the Court of Justice in the FLS cases. Furthermore, even if such damage had materialised, the applicant would have been in a position to remedy it by litigation between the parent companies at national level.
92      In that regard, it should be recalled that, according to settled case-law, in order for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct of its institutions, a number of conditions must be satisfied: the conduct alleged against the institution must be unlawful; actual damage must have been suffered; and there must be a causal link between the alleged conduct and the damage pleaded (judgments of 29 September 1982 in Oleifici Mediterranei v EEC, 26/81, ECR, EU:C:1982:318, paragraph 16, and of 14 December 2005 in Beamglow v Parliament and Others, T‑383/00, ECR, EU:T:2005:453, paragraph 95).
93      Where the unlawfulness of a legal measure is relied on as a basis for an action for damages, that measure, in order to be such as to cause the European Union to incur non-contractual liability, must constitute a sufficiently serious breach of a rule of law intended to confer rights on individuals.
94      The decisive criterion in that regard is whether the EU institution concerned manifestly and gravely disregarded the limits of its discretion (judgment of 19 April 2007 in Holcim (Deutschland) v Commission, C‑282/05 P, ECR, EU:C:2007:226, paragraph 47).
95      The system of rules which the Court of Justice has worked out in relation to the non-contractual liability of the European Union takes into account, inter alia, the complexity of the situations to be regulated, difficulties in the application or interpretation of the legislation and, more particularly, the margin of discretion available to the author of the act in question (judgment in Holcim (Deutschland) v Commission, cited in paragraph 94 above, EU:C:2007:226, paragraph 50).
96      Where the institution criticised has only considerably reduced, or even no, discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach of EU law (Holcim (Deutschland) v Commission, cited in paragraph 94 above, EU:C:2007:226, paragraph 47).
97      Furthermore, it is for the party seeking to establish the European Union’s liability to provide conclusive evidence as to the existence or extent of the damage alleged and to establish a sufficiently direct causal link between that damage and the conduct complained of on the part of the institution concerned (judgment of 24 October 2000 in Fresh Marine v Commission, T‑178/98, ECR, EU:T:2000:240, paragraph 118, confirmed on appeal by the judgment of 10 July 2003 in Commission v Fresh Marine, C‑472/00 P, ECR, EU:C:2003:399).
98      Where one of the three cumulative conditions governing the non-contractual liability of the European Union is not met, the claim for compensation must be dismissed, without it being necessary to consider whether the other two conditions are met (judgments of 15 September 1994 in KYDEP v Council and Commission, C‑146/91, ECR, EU:C:1994:329, paragraph 81, and of 20 February 2002 in Förde-Reederei v Council and Commission, T‑170/00, ECR, EU:T:2002:34, paragraph 37), the EU judicature not being required, moreover, to examine the conditions in a particular order (judgment of 9 September 1999 in Lucaccioni v Commission, C‑257/98 P, ECR, EU:C:1999:402, paragraph 13).
99      In the present case, with regard to the causal link between the Commission’s purportedly unlawful conduct and the damage alleged, it should be noted that, under Article 2, first paragraph, point (f), of the 2005 decision, the applicant was held jointly and severally liable for the payment of a certain amount of the fine imposed upon Trioplast Wittenheim which, under the second paragraph of that article, was payable within a period of three months from the date of notification of the decision. Under the fourth paragraph of that article, moreover, that amount automatically attracted interest upon expiry of that period.
100    As has already been noted, in accordance with the first paragraph of Article 299 TFEU, the 2005 decision was, in that regard, enforceable, since it imposed a pecuniary obligation on persons other than States, notwithstanding the action for annulment of that decision brought on the basis of Article 263 TFEU. Under Article 278 TFEU an action before the EU judicature does not have suspensory effect.
101    In those circumstances, the applicant cannot validly claim that the default interest and the bank guarantee charges which it incurred in the present case flow directly from the unlawfulness of the 2005 decision or from the purportedly non-enforceable nature of that decision following the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388). The damage it alleges in that regard flows, on the contrary, from its own choice not to comply with the obligation to pay the amount of the fine for which it was held to be jointly and severally liable by derogating from the arrangement provided for by Articles 278 TFEU and 299 TFEU, first paragraph, but to provide a bank guarantee pursuant to the possibility left open by the Commission. That choice was left to the applicant’s discretion following, on the one hand, the 2005 decision and the Commission’s letter of 13 December 2005 and, on the other, the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), and the Commission’s letter of 25 February 2011 and was therefore not compulsory in nature following the 2005 decision. If the applicant had chosen to pay immediately the amount of the fine for which it was held to be jointly and severally liable, it would not have had to pay the default interest and the bank guarantee charges (see, to that effect, order of 12 December 2007 in Atlantic Container Line and Others v Commission, T‑113/04, EU:T:2007:377, paragraph 38 and the case-law cited).
102    In that regard, it must also be pointed out that the applicant cannot validly claim that the infringements of the principle of legal certainty and of the principle that penalties must be specific, vitiating the 2005 decision, required it to provide a bank guarantee instead of immediately paying the amount of the fine imposed on its subsidiary for which it was held to be jointly and severally liable. If that amount had been paid immediately, it would have been up to the Commission, contrary to what it maintained at the hearing, to return to the applicant, following the judgments of the Court, not just the amount corresponding to the principal but also the default interest produced by that amount (see, to that effect, judgment of 10 October 2001 in Corus UK v Commission, T‑171/99, ECR, EU:T:2001:249, paragraph 53 et seq.). By its letter of 25 February 2011, the Commission had, furthermore, undertaken to adjust the joint and several liability of all the undertakings concerned in the light of the judgments of the Court in the FLS cases.
103    Moreover, with respect to the argument that the Commission unduly delayed reducing the amount of the bank guarantee following the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), it should once more be pointed out that the applicant could, at any moment, have paid the amount of the fine imposed on its subsidiary for which it was held to be jointly and severally liable and the default interest. In any event, the failure to reduce the amount of the bank guarantee does not, in the circumstances of the case, constitute a sufficiently serious breach of EU law, within the meaning of the case-law cited in paragraph 93 above. On the one hand, following the 2010 judgment, cited in paragraph 11 above (EU:T:2010:388), the applicant did not make contact with the Commission’s staff until 9 February 2011, even though the applicant itself chose to provide the bank guarantee. Moreover, it should be noted that many letters were sent by the applicant in which it claimed that the Court had entirely annulled the 2005 decision in so far as it related to it (see paragraphs 20 to 22 above). Those letters, however, in no way touched on the question of the reduction of the bank guarantee. While it is admittedly regrettable that the Commission waited four months, between February and June 2011, in order to reduce the amount of the bank guarantee, the fact remains that it is the applicant who allowed doubt to linger as to its precise position.
104    In the light of all of the foregoing, the application for damages must be dismissed, without it being necessary to give a ruling on the admissibility of the applicant’s request for an order requiring the Commission to pay damages, in the amount, or part of the amount, of the default interest of EUR 674 033.32.
Costs
105    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
106    Since 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 (Seventh Chamber),
hereby:
1.      Dismisses the action;
2.      Orders Trioplast Industrier AB to pay the costs.
Van der Woude
Wiszniewska-Białecka
Ulloa Rubio
Delivered in open court in Luxembourg on 12 May 2016.
[Signatures]
* Language of the case: English.