62021TJ0310
JUDGMENT OF THE GENERAL COURT (Ninth Chamber, sitting with five Judges)
25 March 2026 (
*1
)
(Non-contractual liability – Competition – Agreements, decisions and concerted practices – Market for airfreight – Reduction of the fine by the General Court – Refusal of the Commission to pay interest on the overpayment – Limitation period – Starting point of the limitation period – Interruption – Admissibility – Concept of ‘interest’ – Rate applicable)
In Case T‑310/21,
Air Canada, established in Saint-Laurent, Quebec (Canada), represented by T. Soames, I.-Z. Prodromou-Stamoudi, lawyers, and T. Johnston, Barrister-at-Law,
applicant,
v
European Commission, represented by P. Rossi, M. Domecq, T. Isacu de Groot and L. Wildpanner, acting as Agents,
defendant,
THE GENERAL COURT (Ninth Chamber, sitting with five Judges),
composed, at the time of the deliberations, of S. Papasavvas, President, L. Truchot, H. Kanninen (Rapporteur), M. Sampol Pucurull and T. Perišin, Judges,
Registrar: M. Zwozdziak-Carbonne, Administrator,
having regard to the written part of the procedure, in particular:
–
the order of 5 July 2022 reserving the decision on the plea of inadmissibility raised by the Commission until the Court’s ruling on the substance of the case,
–
the decision of 10 August 2023, taken pursuant to Article 69(d) of the Rules of Procedure of the General Court and after hearing the parties, to stay the proceedings pending the decision closing the proceedings in the case which gave rise to the judgment of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488),
–
the observations of the parties lodged at the Registry of the General Court on 25 and 29 July 2024 regarding the inferences to be drawn from the judgment of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488), with respect to the present case,
further to the hearing on 5 June 2025,
gives the following
Judgment
1
By its action, the applicant, Air Canada, seeks, principally, on the basis of Article 268 and the second paragraph of Article 340 TFEU, compensation for the damage which it allegedly sustained on account of the European Commission’s refusal to pay it interest due under the first paragraph of Article 266 TFEU in compliance with the judgment of 16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994), or, in the alternative, on the basis of Article 263 TFEU, annulment of the decision of the Commission of 25 March 2021 refusing to pay interest at the statutory rate.
I. Background to the dispute
2
The applicant is an airline operating in the airfreight market.
3
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’).
4
The decision of 9 November 2010 was addressed to 21 entities, including the applicant. In its grounds, that decision described 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 grounds, the addressees of that decision had coordinated their behaviour as regards the pricing of freight services in the EEA and in Switzerland.
5
Articles 1 to 4 of the decision of 9 November 2010 attribute to the addressees of that decision the conduct constituting that single and continuous infringement.
6
Article 5 of the decision of 9 November 2010 relates to fines. In so far as it concerns the present dispute, that article reads as follows:
‘For the infringements referred to in Articles 1 to 4 [of the decision of 9 November 2010], the following fines are imposed:
(a)
Air Canada: EUR 21037500;
…
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 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.’
7
On 6 January 2011, the applicant brought an action for annulment of the decision of 9 November 2010.
8
On 10 February 2011, the applicant made a provisional payment of the total amount of the fine imposed on it by Article 5 of the decision of 9 November 2010.
9
By judgment of 16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994), the Court annulled the decision of 9 November 2010 in so far as it concerned the applicant.
10
On 5 February 2016, the Commission informed the applicant of its decision to repay to it an amount corresponding to the fine which the applicant had provisionally paid (EUR 21037500), plus a guaranteed return (EUR 468 540.80) (‘the decision of 5 February 2016’). It stated that that amount of EUR 21506 040.80 would ‘leave our account today’.
11
The applicant received that amount on 8 February 2016.
12
On 4 February 2021, the applicant sent the Commission a letter in which it applied for payment of the following amounts:
–
the difference between the sum that was owed to the applicant in respect of ‘default’ interest at the rate of 4.5% (interest rate applied by the European Central Bank (ECB) to its refinancing operations, increased by 3.5 percentage points), calculated for the period from 10 February 2011 to 8 February 2016, and the guaranteed return paid on 8 February 2016, namely EUR 468 540.80;
–
compound interest calculated on the amount still owed in respect of default interest for the period from the date on which the Commission made the repayment, namely 8 February 2016, to the date of actual payment of the amount referred to in the preceding indent, at the ECB interest rate for its refinancing operations on 1 November 2010, that is to say, 1% increased by 3.5 percentage points.
13
On 25 March 2021, the Commission notified the applicant of its decision not to grant the application outlined in paragraph 12 above (‘the letter of 25 March 2021’), on the ground that that application was barred under Article 46 of the Statute of the Court of Justice of the European Union.
II. Forms of order sought
14
The applicant claims that the Court should:
–
reject the plea of inadmissibility raised by the Commission;
–
order the European Union, represented by the Commission, to redress the damage sustained because of the failure to pay the default interest and compound interest owing pursuant to the first paragraph of Article 266 TFEU, in order to give effect to the judgment of 16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994), and therefore to pay the following amounts, pursuant to the second paragraph of Article 340 TFEU, Article 268 TFEU and the first paragraph of Article 266 TFEU:
–
an amount equal to the default interest owing, that is to say, interest on the sum of EUR 21037500 at the ECB interest rate for its refinancing operations on 1 November 2010, namely 1%, increased by 3.5 percentage points, for the period between 10 February 2011 and 8 February 2016, less the guaranteed return already paid in the amount of EUR 468 540.80, resulting in an amount of EUR 4264 896.70, or, failing that, at the interest rate which the Court considers appropriate;
–
an amount equal to the interest owing on the sum of EUR 4264 896.70, for the period between 9 February 2016 and 4 February 2021, the date of the application for payment of interest, at the ECB interest rate for its refinancing operations on 1 November 2010, namely 1%, increased by 3.5 percentage points, resulting in an amount of EUR 958 550.14, or, failing that, at the interest rate and for the time period which the Court considers appropriate; and
–
an amount equal to the compound interest owing on the amount corresponding to unpaid interest on the sum owing as at the date of the application for payment of interest (EUR 5223 446.84) or any other amount which the Court considers appropriate for the period between 5 February 2021 and the date on which the Commission reimburses the amounts of interest owing, at the ECB interest rate for its refinancing operations on 1 November 2010, namely 1%, increased by 3.5 percentage points, or, failing that, at the interest rate and for the time period which the Court considers appropriate;
–
in the alternative, annul the letter of 25 March 2021;
–
order the Commission to pay the costs.
15
The Commission contends that the Court should:
–
dismiss the action as inadmissible;
–
in the alternative, dismiss the action as unfounded;
–
order the applicant to pay the costs.
III. Law
16
Since the applicant’s principal claim is for damages, it is appropriate to examine that claim first.
A. Claim for damages
1.
The grounds of inadmissibility put forward by the Commission
17
In its observations regarding the inferences to be drawn, with respect to the present case, from the judgment of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488), the Commission stated that it was maintaining the two grounds of inadmissibility put forward in the plea of inadmissibility, alleging, first, that the claim for damages is time-barred under Article 46 of the Statute of the Court of Justice of the European Union and, second, that an action for damages is inappropriate for the purpose of challenging compliance with the judgment of 16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994).
18
It is appropriate to begin by examining the second ground of inadmissibility.
(a)
The second ground of inadmissibility, alleging that an action for damages is inappropriate for the purpose of challenging compliance with the judgment of 16 December 2015, Air Canada v Commission (T‑9/11)
19
The Commission contends, in essence, that the applicant has used an inappropriate legal remedy in order to challenge compliance with the judgment of 16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994). The applicant should have brought an action for annulment against the decision by which the Commission set the amount to be repaid to the applicant, namely the principal amount of the fine unduly paid, plus the return generated, rather than bringing an action for damages.
20
The Commission adds that the claim for damages constitutes a circumvention of the period laid down in Article 263 TFEU for challenging the repayment decision. That decision dates from February 2016, whereas the present action for damages was not brought until June 2021.
21
The applicant disputes the Commission’s arguments.
22
It should be recalled that, where the applicant seeks, as in the present case, the payment of interest owing on the basis of the first paragraph of Article 266 TFEU following a judgment annulling a measure, the alleged damage results from the Commission’s wrongful failure to take a measure necessary to comply with the annulling judgment, in disregard of its obligations under that provision (order of 4 May 2005, Holcim (France) v Commission, T‑86/03, EU:T:2005:157, paragraph 51).
23
Under the first paragraph of Article 266 TFEU, the institution whose act has been declared void must take the necessary measures to comply with the judgment in question with ex tunc effect. That entails, inter alia, the repayment of sums unduly collected on the basis of that act and the payment of interest (see judgment of 11 June 2024, Commission v Deutsche Telekom, C‑221/22 P, EU:C:2024:488, paragraph 51 and the case-law cited).
24
Article 266 TFEU does not establish a particular means of ensuring compliance with the judgments of the Courts of the European Union. If a person considers that the act adopted to replace the annulled act is not consistent with the grounds and the operative part of the judgment, he or she may bring a new action for annulment under Article 263 TFEU. By contrast, the action for failure to act provided for by Article 265 TFEU is the appropriate means for obtaining a declaration that the failure by an institution to take the necessary measures to comply with a judgment is unlawful (see, to that effect, judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 71 and the case-law cited). As regards the action for damages provided for under Article 268 and the second paragraph of Article 340 TFEU, its purpose is to obtain compensation for damage caused by an unlawful act committed in the process of complying with a decision of a Court of the European Union.
25
Furthermore, it should be borne in mind that, according to settled case-law, an action for damages was introduced as an autonomous form of action, with a particular purpose to fulfil within the system of legal remedies and subject to conditions of use defined in the light of its specific purpose (see, to that effect, order of 21 June 1993, Van Parijs and Others v Council and Commission, C‑257/93, EU:C:1993:249, paragraph 14 and the case-law cited; judgment of 23 March 2004, Ombudsman v Lamberts, C‑234/02 P, EU:C:2004:174, paragraph 59; and order of 3 February 2025, Kerkosand v Commission, T‑216/24, not published, EU:T:2025:142, paragraph 32 and the case-law cited).
26
However, although a party may take action by means of a claim for compensation without being obliged by any provision of law to seek the annulment of the illegal measure which causes him or her damage, the party may not in that way circumvent the inadmissibility of an application which concerns the same instance of illegality and which has the same financial end in view (see judgment of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 50 and the case-law cited).
27
Thus, an action for damages must be declared inadmissible where it is actually aimed at securing withdrawal of an individual decision which has become final and it would, if upheld, have the effect of nullifying the legal effects of that decision. That is the case if the applicant seeks, by means of a claim for damages, to obtain the same result as he or she would have obtained had that applicant been successful in an action for annulment which he or she failed to commence in due time (see judgment of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 51 and the case-law cited).
28
It must therefore be determined whether, as the Commission contends, a finding that the claim for damages in the present case is admissible would amount to circumventing, as prohibited by the case-law set out in paragraphs 24 to 27 above, the applicant’s failure to challenge the decision of 5 February 2016 by means of an action for annulment brought within the period for bringing an action laid down in Article 263 TFEU.
29
In that regard, it is apparent from the case-law that mere silence on the part of an institution cannot, in principle, be placed on the same footing as an implied refusal, except where that result is expressly provided for by a provision of EU law. While not excluding that, in certain particular circumstances, that principle may not be applicable, so that an institution’s silence or inaction may exceptionally be considered to constitute an implied refusal, the Court of Justice has inferred that the act by which the Commission repays to an undertaking only the principal amount of the fine unduly paid without explicitly taking a position on the payment of interest does not constitute an implied refusal to pay such interest that is capable of being challenged by means of an action for annulment (see, to that effect, judgment of 9 December 2004, Commission v Greencore, C‑123/03 P, EU:C:2004:783, paragraph 45).
30
First, no provision of EU law provides that silence on the part of the Commission gives rise to an implied refusal in the context of compliance with a judgment under the first paragraph of Article 266 TFEU. Second, it does not appear that the Commission’s silence could be placed on the same footing as an implied refusal in circumstances such as those in the present case. Indeed, in the decision of 5 February 2016 addressed to the applicant, the Commission simply indicated the amount which it intended to pay. It did state that it would repay not only the fine provisionally paid, but also that that amount would be increased by a guaranteed return. It is apparent from the decision of 5 February 2016 and from the exchange of emails between the applicant and the Commission between 23 December 2015 and 17 February 2016 concerning the repayment that the Commission never explicitly took a position on the payment of interest such as that for which the applicant applied in the present case. In the context of the present proceedings, the Commission has not relied on any particular circumstance that would justify that decision being exceptionally considered to constitute an implied refusal to pay interest and, moreover, there is nothing in the file to suggest that any such circumstance exists.
31
In such conditions, it is the act, like the letter of 25 March 2021 in the present case, by which the application for payment of interest is expressly refused which constitutes the act against which an action for annulment may be brought (see, to that effect, judgment of 9 December 2004, Commission v Greencore, C‑123/03 P, EU:C:2004:783, paragraph 47, and order of 4 May 2005, Holcim (France) v Commission, T‑86/03, EU:T:2005:157, paragraph 43).
32
Consequently, it must be held that the decision of 5 February 2016 did not take a position on the payment of interest and, therefore, could not have been regarded as a refusal to pay interest that was capable of being challenged by means of an action for annulment. The Commission is therefore incorrect in claiming that the bringing of an action for damages constitutes a circumvention of the applicant’s failure to proceed by means of an action for annulment of that decision.
33
Accordingly, the second ground of inadmissibility must be rejected.
(b)
The first ground of inadmissibility, alleging that the claim for damages is time-barred
34
The Commission contends that the claim for damages is time-barred under Article 46 of the Statute of the Court of Justice of the European Union.
35
It maintains that, assuming that the limitation period began to run at the latest on 8 February 2016, which was the date of repayment, the limitation period of five years laid down in Article 46 of the Statute of the Court of Justice of the European Union expired at the latest on 8 February 2021. Furthermore, even if the limitation period had not yet expired and the letter of 25 March 2021 had the effect of interrupting that period, it extended that period only until 25 May 2021, in accordance with Article 46 of the Statute of the Court of Justice of the European Union. It argues that that provision refers only to the period of two months provided for in Article 263 TFEU and not also to the extension on account of distance by a single period of 10 days provided for in Article 60 of the Rules of Procedure of the General Court. Article 60 of those rules applies only to procedural time limits. The Commission maintains that the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union provides for a limitation period and not a procedural time limit. In support of its line of argument, the Commission relies on the judgment of 8 November 2012, Evropaïki Dynamiki v Commission (C‑469/11 P, EU:C:2012:705, paragraphs 52, 54 and 56).
36
The applicant disputes the Commission’s arguments and submits that the period of two months provided for in Article 263 TFEU, to which Article 46 of the Statute of the Court of Justice of the European Union refers for the purpose of instituting proceedings against the response to the prior application, should be extended on account of distance by the single period of 10 days provided for in Article 60 of the Rules of Procedure. It argues that its action for damages was therefore brought within the prescribed periods.
(1) The starting point of the limitation period relating to the claim for damages
37
The first paragraph of Article 46 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court pursuant to the first paragraph of Article 53 of that statute, is worded as follows:
‘Proceedings against the [European] Union in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto. The period of limitation shall be interrupted if proceedings are instituted before the Court of Justice or if prior to such proceedings an application is made by the aggrieved party to the relevant institution of the [European] Union. In the latter event the proceedings must be instituted within the period of two months provided for in Article 263 [TFEU]; the provisions of the second paragraph of Article 265 [TFEU] shall apply where appropriate.’
38
In accordance with settled case‑law, the limitation 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).
39
In a situation such as that in the present case, which concerns compensation for damage corresponding to the amount of interest owing on the principal amount of a fine unduly paid, it is the Commission’s alleged failure to pay interest to the person concerned, on the basis of the first paragraph of Article 266 TFEU, which is the cause of the alleged damage. Accordingly, 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, which triggers the limitation period of five years (see, to that effect, orders of 27 October 2023, British Airways v Commission, C‑138/23 P, not published, EU:C:2023:821, paragraph 57, and of 4 May 2005, Holcim (France) v Commission, T‑86/03, EU:T:2005:157, paragraphs 40 and 51).
40
In the present case, the Commission’s alleged failure to take the necessary measures to comply with the judgment of 16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994), materialised on 8 February 2016 with the actual repayment of the principal amount of the fine unduly paid, which was increased by the guaranteed return, but was not accompanied by the interest referred to in paragraph 23 above.
41
It must therefore be held that the limitation period began to run on 8 February 2016, a point on which, moreover, the parties agree.
(2) The expiry of the limitation period relating to the claim for damages
42
Under Article 46 of the Statute of the Court of Justice of the European Union, the period of limitation is to be interrupted in matters arising from non-contractual liability if proceedings are instituted before the Court of Justice of the European Union or if, prior to such proceedings, an application is made by the aggrieved party to the relevant institution of the European Union.
43
As regards the second situation, in which the person concerned makes an application to the relevant institution of the European Union, seeking compensation for the alleged damage, there are two possible scenarios. The first is where the person concerned institutes proceedings before the Courts of the European Union without waiting for the relevant institution to take a decision on his or her application and before the expiry of the time limit laid down in the second paragraph of Article 265 TFEU. The second is where the relevant institution rejects the prior application or does not respond to it within the time limit laid down in the second paragraph of Article 265 TFEU, in which case the period is to be interrupted only if that application is followed by proceedings instituted within the time limits laid down by Articles 263 and 265 TFEU, depending on the case (see, to that effect, judgment of 14 July 1967, Kampffmeyer and Others v Commission, 5/66, 7/66, 13/66 to 16/66 and 18/66 to 24/66, not published, EU:C:1967:31, p. 260, and order of 4 August 1999, Fratelli Murri v Commission, T‑106/98, EU:T:1999:163, paragraph 29). In both of those scenarios, it is on the date of receipt of the prior application by the relevant institution that the limitation period is deemed to have been interrupted (see, to that effect, judgment of 27 September 2007, Pelle and Konrad v Council and Commission, T‑8/95 and T‑9/95, EU:T:2007:298, paragraph 80 and the case-law cited).
44
The first paragraph of Article 46 of the Statute of the Court of Justice of the European Union thus refers to a number of time limits. First, it sets the limitation period at five years. Second, in the case of a prior application to the relevant institution, it refers to the period provided for in Article 263 TFEU, while specifying that, where appropriate, the provisions of the second paragraph of Article 265 TFEU are to apply.
45
As stated in paragraph 41 above, the limitation period began to run on 8 February 2016. The applicant made its prior application on 4 February 2021, that is to say, before 8 February 2021, the date on which the limitation period expired. The Commission rejected its application on 25 March 2021.
46
The applicant brought the present action on 2 June 2021, that is to say, two months and eight days after the Commission rejected its prior application on 25 March 2021.
47
The parties disagree on the application of the extension on account of distance by a single period of 10 days, provided for in Article 60 of the Rules of Procedure, to the period of two months indicated in the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union by reference to Article 263 TFEU.
48
Article 60 of the Rules of Procedure provides that the procedural time limits are to be extended on account of distance by a single period of 10 days. That period was introduced in order to take account of the difficulties faced by parties owing to the fact that they may be a fairly long way away from the seat of the Court of Justice (see, to that effect, judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 48).
49
It must first be observed that the limitation period of five years provided for in the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union is not a procedural time limit. It is inherently different from such a time limit (judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 49). It follows that the single 10-day extension on account of distance does not apply to that limitation period (judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 59).
50
As regards the period of two months indicated in the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union by reference to Article 263 TFEU, this is a period other than a limitation period. It refers to a procedural step which the person concerned must take in order for his or her action for damages to be admissible following the interruption of the limitation period.
51
It follows from the case-law that the reference, in the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union, to the period of two months provided for in Article 263 TFEU has the effect of rendering applicable, as far as interruption of the limitation period is concerned, the rules for calculating the applicable time limits under Article 263 TFEU (see, to that effect, judgment of 7 February 2002, Schulte v Council and Commission, T‑261/94, EU:T:2002:27, paragraph 63 and the case-law cited), which includes the extension on account of distance provided for in Article 60 of the Rules of Procedure (see, to that effect, order of 19 September 2001, Jestädt v Council and Commission, T‑332/99, EU:T:2001:218, paragraph 53).
52
Thus, since the period laid down by Article 263 TFEU is a procedural time limit, it follows from Article 60 of the Rules of Procedure that any application of that period must be extended on account of distance by a single period of 10 days. Therefore, in so far as Article 46 of the Statute of the Court of Justice of the European Union makes express reference to the period laid down by Article 263 TFEU and Article 46 of that statute does not contain any provision precluding the application of Article 60 of the Rules of Procedure, the mere absence of any reference to Article 60 of those rules cannot, contrary to what the Commission contends, preclude the application of Article 60 to the present case.
53
In conclusion, it must be held that the limitation period was interrupted by the prior application made by the applicant on 4 February 2021, before the expiry of the five-year period. Subsequently, the applicant brought its action within two months and 10 days of the Commission’s response to its application on 25 March 2021. The claim for damages made in the context of the present action is therefore not time-barred.
54
Accordingly, the first ground of inadmissibility must be rejected.
55
Consequently, the plea of inadmissibility raised by the Commission must be rejected in its entirety and the merits of the claim for damages must be examined.
2.
Substance
56
The applicant seeks, in essence, (i) compensation for the damage resulting from the Commission’s incomplete compliance with the judgment of 16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994), on account of the alleged failure to pay, on 8 February 2016, all the interest owing in connection with the repayment of the amount of the fine unduly collected, and (ii) payment of default interest calculated on the amount of that compensation for the period following that date until compliance with the present judgment.
57
The second paragraph of Article 340 TFEU provides that, in the case of non-contractual liability, the European Union is, in accordance with the general principles common to the laws of the Member States, to make good any damage caused by its institutions or by its servants in the performance of their duties.
58
According to settled case-law, the European Union may incur non-contractual liability only if a number of conditions are fulfilled, namely the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals, the fact of damage and the existence of a causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties (see judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 32 and the case-law cited).
(a)
The claim for compensation on account of incomplete compliance with the judgment of 16 December 2015, Air Canada v Commission (T‑9/11)
(1) The existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals
59
The applicant submits that the Commission infringed the first paragraph of Article 266 TFEU by refusing to pay it the interest designed to provide compensation at a standard rate for the loss of enjoyment of the sum provisionally paid because of the fine imposed (‘interest at a standard rate’). It maintains that it is apparent from the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), that such a refusal of payment constitutes a sufficiently serious breach of that article. The right to full restitution is satisfied by the payment of such interest at the ECB refinancing rate plus 3.5 percentage points, namely, in the present case, 4.5%. It argues that that rate results from the application of Article 86 of 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). It therefore requests that the Commission be ordered to pay the difference between the interest which it received and the interest which it should have received as interest at a standard rate. In its observations regarding the judgment of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488), the applicant submits that that judgment confirms its position.
60
In the defence and in the rejoinder, the Commission contends that it did not infringe Article 266 TFEU, let alone commit a sufficiently serious breach of that provision. In that regard, it points out that it repaid to the applicant the amount of the fine provisionally paid, plus the interest yielded, in accordance with Article 85a(2) of Regulation No 2342/2002 in order to eliminate any unjust enrichment.
61
In its observations regarding the judgment of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488), the Commission acknowledges that that judgment resolves in the applicant’s favour the general question of its entitlement to interest at a standard rate, and that the rate of such interest might be identified by reference, inter alia, to Article 83(2)(b) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1), for the period between the provisional payment of the fine and the repayment decision.
62
The Commission contends, however, that, even if the judgments of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), and of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), provide a correct statement of the law, a failure to comply with those judgments in February 2016 does not constitute a sufficiently serious breach of a rule of EU law. The objective requirements of EU law were not clearly defined at the time when the decision of 5 February 2016 was adopted, therefore demonstrating that there were difficulties of application or interpretation. The Commission maintains that the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), created an entirely novel right to reimbursement. However, it argues that, in the judgment of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488), that question did not arise since the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), was delivered before the Commission made the repayment to Deutsche Telekom on 19 February 2019.
63
In the present case, the sufficiently serious breach alleged against the Commission is that of Article 266 TFEU, on the ground that the Commission did not fully comply with the judgment of 16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994).
64
As regards the condition relating to the unlawful conduct alleged against the EU institution or body concerned, it has been recalled, in paragraph 58 above, that it is necessary to establish a sufficiently serious breach of a rule of law intended to confer rights on individuals.
65
The first paragraph of Article 266 TFEU is a rule of law intended to confer rights on individuals. That provision establishes an absolute, unconditional obligation on the part of the institution which adopted the annulled act to take, in the interests of the successful applicant, the necessary measures to comply with the judgment declaring that act void with ex tunc effect, to which the applicant’s right to full compliance with that obligation corresponds (see, to that effect, judgment of 12 February 2019, Printeos v Commission, T‑201/17, EU:T:2019:81, paragraph 55). That entails, inter alia, the repayment of sums unduly collected on the basis of that act and the payment of interest (see, to that effect, judgment of 11 June 2024, Commission v Deutsche Telekom, C‑221/22 P, EU:C:2024:488, paragraph 57).
66
It is apparent from settled case-law that the payment of interest constitutes a measure giving effect to a judgment annulling a measure, for the purposes of the first paragraph of Article 266 TFEU, in that it is designed to compensate at a standard rate for the loss of enjoyment of the monies owed and, moreover, after delivery of that annulling judgment, to encourage the debtor to comply with that judgment as soon as possible (see judgment of 11 June 2024, Commission v Deutsche Telekom, C‑221/22 P, EU:C:2024:488, paragraph 52 and the case-law cited).
67
It thus follows from the first paragraph of Article 266 TFEU that, in the event of annulment or reduction with ex tunc effect by a Court of the European Union of a fine imposed by a Commission decision for infringement of the competition rules, that institution is required to repay all or part of the fine provisionally paid, together with interest for the period from the date of provisional payment of that fine to the date of its repayment (judgment of 11 June 2024, Commission v Deutsche Telekom, C‑221/22 P, EU:C:2024:488, paragraph 53).
68
In the present case, the Commission was therefore required not only to repay the fine provisionally paid, but also to pay interest, which it does not dispute. Indeed, it did pay interest, namely the interest yielded.
69
However, in so far as the interest to be paid is of a standard nature, the Commission is required, under the first paragraph of Article 266 TFEU, to pay to the person concerned any difference between the amount of interest yielded and the interest at a standard rate (see, to that effect, judgment of 11 June 2024, Commission v Deutsche Telekom, C‑221/22 P, EU:C:2024:488, paragraph 64 and the case-law cited).
70
The applicant submits that the interest yielded which it received is lower than the interest at a standard rate owed to it.
71
The Commission nevertheless contends that it did not commit a serious breach by paying the applicant only the interest yielded.
72
The Commission maintains that, at the time when the interest was paid in the present case, namely in 2016, it was simply applying the case-law in force at that time. In its submission, the obligation to pay interest at a standard rate arises only from the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), which was delivered on 12 February 2019.
73
The Commission contends that the legality of its conduct must be assessed on the basis of the law and the facts as they stood at the time when that conduct was adopted. Thus, in the event of a significant change in the case-law subsequent to the act which is alleged to be the cause of the damage, that act does not constitute a sufficiently serious breach of EU law capable of giving rise to non-contractual liability for the purposes of Articles 268 and 340 TFEU. It argues that its conduct cannot be assessed by reference to the subsequent developments in the law arising from the judgments of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), and of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488).
74
In that regard, it should be noted that, first, a sufficiently serious breach of a rule of law intended to confer rights on individuals is established where the breach is one that implies that the institution concerned manifestly and gravely disregarded the limits set on its discretion (see judgment of 11 January 2024, Dyson and Others v Commission, C‑122/22 P, EU:C:2024:11, paragraph 48 and the case-law cited).
75
Second, where an EU institution 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 capable of giving rise to the European Union’s non-contractual liability (see judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraph 103 and the case-law cited).
76
Furthermore, non-contractual liability of the European Union can arise only if an irregularity is found that would not have been committed in similar circumstances by an administrative authority exercising ordinary care and diligence (see judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 43 and the case-law cited).
77
It must be recalled that illegality of an act or of conduct that may give rise to non-contractual liability of the European Union must be assessed on the basis of the facts and the law as they stood at the time when the act or conduct was adopted (judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 39).
78
‘Sufficiently serious breach’ is a static concept, fixed at the time when the unlawful act or conduct was adopted (judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 55). Accordingly, inasmuch as the degree of seriousness, required by the case-law, of the breach of a rule of EU law committed by the institution at issue is intrinsically linked to that breach, it cannot be assessed by reference to a time different from the time when the breach was committed (judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 45).
79
In the judgment of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488, paragraphs 52 to 57), the Court of Justice emphasised, on the basis of settled case-law (judgment of 12 February 2015, Commission v IPK International, C‑336/13 P, EU:C:2015:83, paragraph 30; see, also, judgment of 10 October 2001, Corus UK v Commission, T‑171/99, EU:T:2001:249, paragraphs 53 and 54 and the case-law cited), that the payment of interest constitutes a measure giving effect to a judgment annulling a measure, for the purposes of the first paragraph of Article 266 TFEU, in that it is designed to compensate at a standard rate for the loss of enjoyment of the monies owed and to encourage the debtor to comply with that judgment as soon as possible.
80
According to the same case-law, the payment of interest on the amount unduly paid would seem to be an essential component of the Commission’s obligation to restore the person concerned to his or her original position following a judgment annulling a measure, or a judgment exercising the Court’s unlimited jurisdiction. The purpose of such interest is to restore the person concerned to the position in which he or she legally should have been had the annulled measure not been adopted, taking into account the fact that such restoration occurred only after an appreciable lapse of time during which that person was deprived of the use of the sums he or she had unduly paid (see, to that effect, judgment of 10 October 2001, Corus UK v Commission, T‑171/99, EU:T:2001:249, paragraph 54).
81
Moreover, that case-law also states that interest must be calculated on the basis of a standard rate, calculated by reference to the statutory rate of interest, without compounding, for the period between the date of provisional payment of the fine imposed and the date on which the Commission repaid the sum unduly paid (see, to that effect, judgment of 10 October 2001, Corus UK v Commission, T‑171/99, EU:T:2001:249, paragraphs 60 and 61).
82
Therefore, the Commission could not have been unaware of the consequences deriving from the application of the first paragraph of Article 266 TFEU at the time when it repaid the fine to the applicant, namely in February 2016. In so far as it follows from case-law prior to compliance with the judgment of 16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994), that the payment of interest is designed to compensate at a standard rate for the loss of enjoyment of the sum unduly paid, the Commission should have known that the mere payment of the interest yielded, together with the repayment of the sum unduly paid in respect of the fine, did not necessarily constitute full compliance with that judgment.
83
The Commission further contends, however, that any error it might have made should, in any event, be regarded as excusable due to the difficulties in the application or interpretation of its obligation to comply with a judgment annulling or varying the fine provisionally paid, in accordance with the first paragraph of Article 266 TFEU. That argument amounts to a denial that the illegality was sufficiently serious for the same reasons as those set out in paragraphs 60 to 62 above.
84
Accordingly, in the light of the refusal to pay interest at a standard rate for the loss of enjoyment of the sum unduly paid by the applicant in respect of the fine on the sole ground that the Commission had repaid the interest yielded, without ensuring that that amount was at least equal to that of the interest at a standard rate owed, it must be held that there has been a sufficiently serious breach of the first paragraph of Article 266 TFEU capable of giving rise to the European Union’s non-contractual liability for the purposes of Article 268 TFEU, read in conjunction with the second paragraph of Article 340 TFEU.
(2) Damage
85
According to settled case-law, the damage for which compensation is sought in an action to establish non-contractual liability on the part of the European Union must be actual and certain, which it is for the applicant to prove (see judgment of 9 November 2006, Agraz and Others v Commission, C‑243/05 P, EU:C:2006:708, paragraph 27 and the case-law cited). It is for the applicant to adduce conclusive proof as to both the existence and the extent of the damage he or she alleges (see judgment of 16 September 1997, Blackspur DIY and Others v Council and Commission, C‑362/95 P, EU:C:1997:401, paragraph 31 and the case-law cited).
86
However, since the interest in question is at a standard rate, the applicant is not required to prove the existence of damage beyond the mere failure to pay that interest in full (see, to that effect, judgments of 11 June 2024, Commission v Deutsche Telekom, C‑221/22 P, EU:C:2024:488, paragraph 62, and of 10 October 2001, Corus UK v Commission, T‑171/99, EU:T:2001:249, paragraph 56).
87
Since the Commission has paid to the applicant, in addition to the amount unduly collected in respect of the fine, the interest yielded, the existence of damage and, as the case may be, its extent depend on the difference between the interest at a standard rate which the Commission should have paid and the interest yielded.
88
The applicant submits that the interest rate should be determined on the basis of the rate laid down in Article 86(2)(b) of Regulation No 2342/2002, namely the ECB refinancing rate, increased by 3.5 percentage points. It maintains that the judgment of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488), confirms its position regarding the interest rate to be applied.
89
The applicant claims compensation in the amount of EUR 4264 896.70 corresponding to the interest at a standard rate calculated on the principal amount unduly paid in respect of the fine (EUR 21037500), at a rate of 4.5% for the period from 10 February 2011 to 8 February 2016, less the amount of EUR 468 540.80 corresponding to the interest yielded that has already been paid by the Commission.
90
In its observations regarding the judgment of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488), the Commission states that the Court of Justice held that the General Court had not erred in law in applying, ‘by analogy’, an interest rate equal to the ECB refinancing rate, increased by 3.5 percentage points.
91
The Commission maintains that, however, there are reasons, not addressed in the judgment of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488), why a lower rate than that claimed by the applicant is sufficient to compensate for the loss of enjoyment of the funds provisionally paid. It adds that, although the interest rate claimed by the applicant was accepted in paragraph 84 of that judgment inasmuch as it ‘does not appear unreasonable or disproportionate’, the terms in which this was expressed by that judgment suggest that it is not the only interest rate that might be accepted. At the hearing, the Commission contended that Regulation No 2342/2002 was applicable in the present case.
92
As set out in paragraph 87 above, it is necessary to identify the interest rate to be applied in order to determine the existence of damage sustained by the applicant and its extent.
93
As a preliminary point, it should be noted that, in the judgment of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488, paragraph 90), the Court of Justice recalled, albeit while making an observation de lege ferenda, the objectives of interest at a standard rate. According to the Court of Justice, the rate applicable to that interest cannot be limited to compensating for the depreciation in the value of money which occurred during the period in respect of which interest must be paid, without covering the compensation at a standard rate to which the undertaking that paid that fine is entitled by reason of the fact that it was deprived for a certain period of time of the use of the funds corresponding to the amount unduly collected by the Commission.
94
It is apparent from the case-law that, in order to determine the amount of the interest at a standard rate that must be paid to an undertaking which paid a fine imposed by the Commission, following the annulment or reduction of that fine, the Commission must apply the rate set for that purpose by the EU Financial Regulations in force during the period of loss of enjoyment of the amount concerned and, more specifically, by the provisions of those regulations relating to the interest rate for amounts receivable not repaid on the deadline (see, to that effect, judgment of 11 June 2024, Commission v Deutsche Telekom, C‑221/22 P, EU:C:2024:488, paragraph 78 and the case-law cited).
95
In the judgment of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488, paragraph 83), the Court of Justice observed that it was true that neither Article 83 of Delegated Regulation No 1268/2012 nor any other provision of that regulation set the rate of interest corresponding to compensation at a standard rate such as that which was at issue. In those circumstances, in paragraph 84 of that judgment, the Court of Justice did not consider that the General Court had erred in applying, by analogy, the interest rate provided for in Article 83(2)(b) of that regulation, namely the ECB refinancing rate increased by 3.5 percentage points, even though that provision covers the situation of late payment, that is to say, one in which an amount receivable is not paid on the deadline provided for. In that regard, the Court of Justice further held that that interest rate did not appear unreasonable or disproportionate in the light of the purpose of the interest which was at issue (judgment of 11 June 2024, Commission v Deutsche Telekom, C‑221/22 P, EU:C:2024:488, paragraph 84).
96
In order to determine the interest rate applicable in the present case, it must first be recalled that the applicant provisionally paid the fine on 10 February 2011, and therefore under Regulation No 2342/2002. Subsequent to that payment, Regulation No 1605/2002 and Regulation No 2342/2002 were replaced by Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), and by Delegated Regulation No 1268/2012, respectively. The latter two measures entered into force on 27 October 2012 and on 1 January 2013, respectively. The judgment of16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994), and the repayment to the applicant on 8 February 2016 of the principal amount of the fine and of the interest yielded both post-date the entry into force of that new legislation.
97
In that regard, it must be observed that the reasoning followed by the General Court in the judgment of 19 January 2022, Deutsche Telekom v Commission (T‑610/19, EU:T:2022:15), is capable of being applied to the present case. Both Article 83(2) of Delegated Regulation No 1268/2012 and Article 86(2) of Regulation No 2342/2002 concern the interest rates for amounts receivable not repaid on the deadline. Point (a) of those two paragraphs relates to cases where the obligating event is a public contract, while point (b) of those paragraphs covers all other cases and sets the interest rate at the ECB refinancing rate, increased by 3.5 percentage points.
98
Thus, in the absence of any specific provision in the Financial Regulations setting the interest rate corresponding to compensation at a standard rate for the loss of enjoyment of the sum relating to the amount of the fine unduly collected by the Commission, for the period between the date of provisional payment of that fine and the date of its repayment by that institution, an application by analogy of Article 86(2)(b) of Regulation No 2342/2002 and of Article 83(2)(b) of Delegated Regulation No 1268/2012 allows the purpose of the interest at issue in the present case to be respected.
99
The Commission nevertheless contends that there are reasons why a lower interest rate than that claimed by the applicant is sufficient to compensate for such loss of enjoyment. In its submission, that rate should be the one applied where the debtor provides a financial guarantee in lieu of payment of the fine, namely the rate provided for in Article 86(5) of Regulation No 2342/2002, which is essentially identical to Article 83(4) of Delegated Regulation No 1268/2012.
100
It must be noted that, in paragraphs 85 to 87 of the judgment of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488), the Court of Justice rejected such an argument.
101
The Commission maintains, however, that the reasons given by the Court of Justice do not address its argument that, where a fine secured by a bank guarantee is upheld by the General Court, leading to the conclusion that the monies should have been available to the Commission as from the due date for payment under the decision imposing the fine, the Commission will have been deprived of the use of that amount during the proceedings. According to the Commission, in that case, it will be able to claim only the lower interest rate set by Article 83(4) of Delegated Regulation No 1268/2012 or by Article 86(5) of Regulation No 2342/2002.
102
It must be borne in mind that Article 86(5) of Regulation No 2342/2002 and Article 83(4) of Delegated Regulation No 1268/2012 apply to fines where the debtor provides a financial guarantee which is accepted by the accounting officer in lieu of payment. Thus, it must be held that the legislature has provided for specific interest in respect of that situation (judgment of 11 June 2024, Commission v Deutsche Telekom, C‑221/22 P, EU:C:2024:488, paragraph 85).
103
In that regard, it must also be borne in mind that Article 5 of the decision of 9 November 2010 provided that, in the event of an appeal being lodged by a penalised undertaking, that undertaking could cover the fine by the due date by providing a bank guarantee or by making a provisional payment of the fine in accordance with Article 85a(1) of Regulation No 2342/2002. Thus, recourse to a financial guarantee remained an alternative to cash payment.
104
It must be stated that, in the event of recourse to a bank guarantee, the Commission is not in a situation comparable to that of the applicant which made a provisional payment of the fine. It is true that, in the context of a bank guarantee, the Commission is deprived of the enjoyment of the amount corresponding to the fine imposed. However, the choice of a bank guarantee does not result in any loss on the part of the Commission, since it deprives that institution only of the immediate benefit of additional funds. Furthermore, the provision and maintenance of the bank guarantee give rise to an additional cost borne in full by the party liable to pay the fine.
105
Conversely, the provisional payment of the fine constitutes a loss of funds which the applicant held and could freely use. This results in immediate loss equivalent to the amount of the fine imposed. Moreover, while the Commission immediately receives the amount corresponding to the fine imposed, it cannot freely use it until all legal remedies have been exhausted, as is apparent from Article 85a(2) of Regulation No 2342/2002 and Article 90(3) of Delegated Regulation No 1268/2012. Furthermore, that loss of use of the funds corresponding to the fine imposed is a consequence of the exercise of the applicant’s right to bring an action for the purpose of reviewing the legality of the decision imposing the fine.
106
It follows that, where the action against the decision imposing the fine is dismissed, the interest provided for in Article 86(5) of Regulation No 2342/2002 and in Article 83(4) of Delegated Regulation No 1268/2012 which the undertaking must pay to the Commission is not comparable to the interest at a standard rate which that institution must pay following a ruling of a Court of the European Union finding the Commission’s decision to be unlawful.
107
It also follows that the Commission is not in the same situation depending on whether, pending the court ruling, the party liable to pay a fine has recourse to a financial guarantee or whether that party makes a provisional payment of the fine. Thus, that difference in the Commission’s situation depending on the choice made by the party liable to pay the fine cannot, in the present case, justify the application of the interest rate relied on by the Commission.
108
Accordingly, the Commission’s argument as to the existence of an adequate interest rate lower than that referred to in paragraph 101 above must be rejected.
109
Consequently, the interest rate applicable in the present case must be set by applying, by analogy, the rate provided for in Article 86(2)(b) of Regulation No 2342/2002 and in Article 83(2)(b) of Delegated Regulation No 1268/2012, namely the interest rate applied by the ECB to its principal refinancing operations in February 2011, that is to say, 1% increased by 3.5 percentage points, which is 4.5%.
110
It follows from the foregoing that the amount of interest at a standard rate, applying an interest rate of 4.5% on the amount of EUR 21037500 for the period from 10 February 2011 to 8 February 2016, comes to EUR 4733 437.50. The damage sustained by the applicant therefore corresponds to the difference between that amount and the interest yielded (EUR 468 540.80), namely EUR 4264 896.70.
(3) Causal link
111
The applicant claims that the damage which it has suffered follows directly from the Commission’s failure to fulfil its obligations under the first paragraph of Article 266 TFEU. First, it submits that it had the right to choose between providing a bank guarantee, in respect of which the Commission has failed to demonstrate that it would have been less costly, and provisional payment of the fine. Second, it maintains that it is entitled to bring a claim for payment of interest at a standard rate at any time provided that such a claim is made prior to the action for damages becoming time-barred.
112
The Commission contends that the amount of interest at a standard rate should be refused or reduced because the applicant failed to mitigate its losses contrary to the fundamental principle in that regard. It maintains that the applicant has not demonstrated that the interest at a standard rate claimed is less than the loss which it would have suffered if it had provided a bank guarantee instead of making a provisional payment. In so far as it had the choice between those two approaches to paying the fine, it should have opted, at the time of provisional payment of the fine, for the course of action which would have caused it the least loss in the event of the fine being annulled.
113
It should be recalled that the condition under the second paragraph of Article 340 TFEU relating to a causal link concerns a sufficiently direct causal nexus between the conduct of the EU institutions and the damage, the burden of proof of which rests on the applicant, so that the conduct complained of must be the determining cause of the damage (see judgment of 13 December 2018, European Union v Kendrion, C‑150/17 P, EU:C:2018:1014, paragraph 52 and the case-law cited).
114
In other words, even in the case of a possible contribution by the institutions to the damage for which compensation is sought, that contribution might be too remote because of some responsibility resting on others, possibly the applicant (see judgment of 10 January 2017, Gascogne Sack Deutschland and Gascogne v European Union, T‑577/14, EU:T:2017:1, paragraph 117 and the case-law cited).
115
In that regard, it has also been held that, in the examination of the causal link between the alleged conduct of the EU institution and the damage alleged by the person adversely affected, it must be ascertained whether, at the risk of having to bear the damage himself or herself, that person demonstrated, as a prudent person, reasonable diligence in avoiding the damage or limiting its extent. That causal link may be broken by negligence on the part of the person adversely affected, where that negligence proves to be the determinant cause of the damage (see order of 4 June 2012, Azienda Agricola Bracesco v Commission, T‑440/09, not published, EU:T:2012:269, paragraphs 39 and 40 and the case-law cited).
116
As is apparent from paragraphs 65 to 84 above, following the judgment of 16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994), the Commission was required to repay to the applicant the amount of the fine provisionally paid, together with interest at a standard rate.
117
In the present case, the Commission paid only the amount of interest yielded and thereby failed to fulfil its obligation to pay interest at a standard rate pursuant to the first paragraph of Article 266 TFEU. Therefore, that failure has a sufficiently direct causal link with the damage sustained by the applicant (see paragraphs 92 to 110 above).
118
In that regard, the Commission cannot criticise the applicant for having freely chosen to make a provisional payment of the fine instead of providing a bank guarantee. The applicant’s choice to make a provisional payment of its fine is in accordance with the decision of 9 November 2010, in particular Article 5(4) thereof, and cannot break the causal link between the illegality found and the damage sustained.
119
Consequently, there is a sufficiently direct causal link between the sufficiently serious breach of EU law and the damage sustained by the applicant.
(b)
Default interest
120
First, as part of its claim for default interest in the context of its claim for damages, the applicant seeks simple interest on arrears on the sum of EUR 4264 896.70 corresponding to the interest at a standard rate sought for the period from 9 February 2016 to 4 February 2021, at the same rate of interest as that referred to in paragraph 88 above, namely an amount of EUR 958 550.14.
121
Second, the applicant seeks payment of compound interest, at the interest rate referred to in paragraph 88 above, on the sum owing on 4 February 2021, namely the sum of EUR 5223 446.84 (EUR 4264 896.70 + EUR 958 550.14), until full payment by the Commission.
122
As regards the interest referred to in paragraph 120 above, the Commission contends that the applicant inordinately delayed making its prior application under Article 46 of the Statute of the Court of Justice of the European Union, such that the amount of its principal claim of EUR 4264 896.70, representing the interest claimed for the period from provisional payment of the fine to the repayment decision, is increased by EUR 958550, that is to say, an increase of over 20%. It argues that that increase is not attributable to any fault on the part of the Commission cognisable under Article 340 TFEU, but is entirely due to inertia on the part of the applicant. According to the Commission, the applicant did not show reasonable diligence in limiting the extent of its loss on account of the lateness of its prior application under Article 46 of the Statute of the Court of Justice of the European Union. The limitation period laid down in that article cannot justify the applicant’s wrongful failure to take action in respect of the period following the repayment of the fine by the Commission. In its observations regarding the judgment of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488), the Commission points out that that issue did not arise in that judgment.
123
It should be recalled that, as regards a claim based on the European Union’s non-contractual liability under the second paragraph of Article 340 TFEU, it follows from the case-law that, in the absence of special circumstances, the obligation to pay default interest arises on the date of the judgment establishing the obligation to make good the damage (see judgments of 10 January 2017, Gascogne Sack Deutschland and Gascogne v European Union, T‑577/14, EU:T:2017:1, paragraph 178 and the case-law cited, and of 19 January 2022, Deutsche Telekom v Commission, T‑610/19, EU:T:2022:15, paragraph 141 and the case-law cited).
124
Thus, as is also apparent from the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39, paragraphs 122 to 124 and 129), the award of default interest in respect of a period prior to the delivery of the judgment is possible in particular circumstances.
125
In the present case, first, the Commission’s obligation to include interest at a standard rate on the repayment of the fine provisionally paid by the applicant follows directly from Article 266 TFEU and the lack of enjoyment of the sum corresponding to that interest started at the time of the abovementioned repayment (see, to that effect, judgments of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraphs 122 to 124 and 129, and of 8 March 2023, Campine and Campine Recycling v Commission, T‑94/20, not published, EU:T:2023:110, paragraphs 105 to 108).
126
Second, in its letter addressed to the Commission on 4 February 2021, the applicant clearly reminded the Commission of its obligations under Article 266 TFEU and the case-law, and requested compound interest until full payment by the Commission (see paragraph 12 above).
127
Thus, since the special circumstances described in paragraphs 125 and 126 above obtained on the date of the applicant’s prior application, made in the letter of 4 February 2021 addressed to the Commission, it is appropriate to award default interest on the amount of EUR 4264 896.70 from 5 February 2021 until payment in full by the Commission. By contrast, there are no special circumstances justifying the award of default interest in respect of the period between the date of repayment of the fine, namely 8 February 2016, and the date of the prior application, namely 4 February 2021, since the delay in making that prior application was attributable solely to the applicant’s conduct.
128
As regards the applicable interest rate, it is appropriate to apply Article 99(2)(b) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation No 966/2012 (OJ 2018 L 193, p. 1), which was applicable at the time of the prior application for the purposes of Article 46 of the Statute of the Court of Justice of the European Union in the present case. Pursuant to that provision, the default interest awarded to the applicant must be calculated on the basis of the rate applied by the ECB to its principal refinancing operations on 4 February 2021, namely 0% increased by 3.5 percentage points, that is to say, in the present case, 3.5%.
129
Consequently, it is appropriate to award the applicant default interest on the amount of EUR 4264 896.70, at an interest rate of 3.5% from 5 February 2021 until payment in full by the Commission.
(c)
Conclusion regarding the claim for damages
130
In the light of the foregoing considerations, the Commission must be ordered to pay the applicant compensation in order to make good the damage caused to it by the sufficiently serious breach of the first paragraph of Article 266 TFEU, consisting of the fact that the applicant did not receive standard-rate interest at the rate of 4.5% on the amount of the fine unduly paid, for the period between the provisional payment of the fine on 10 February 2011 and the repayment of the fine unduly paid on 8 February 2016, less the amount of interest already paid by the Commission when the fine was repaid. The amount of that compensation is EUR 4264 896.70. It is also appropriate to award the applicant default interest on that amount of EUR 4264 896.70, at an interest rate of 3.5% from 5 February 2021 until payment in full by the Commission.
131
The claim for damages is dismissed as to the remainder, with the result that it is appropriate also to examine the claim for annulment put forward in the alternative.
B. Claim for annulment
132
The applicant seeks, in the alternative, annulment of the letter of 25 March 2021 by which the Commission rejected its application for payment of the amounts corresponding to interest at a standard rate and default interest. The applicant’s single plea alleges that the Commission erred in considering that the application for payment of interest was time-barred.
133
The Commission contends that the applicant’s application for annulment is inadmissible on the ground that the applicant has no legal interest in bringing proceedings and, in the alternative, that the letter of 25 March 2021 is confirmatory in nature.
134
The Commission maintains that the applicant has no legal interest in seeking the annulment of the letter of 25 March 2021. It argues that the applicant fails to explain how the action for annulment would procure a benefit for it. It contends that the application for annulment is ineffective even if the applicant were correct in claiming that the limitation period began to run on the date of the Commission’s allegedly unlawful failure to pay it interest at a standard rate. Moreover, annulment of the letter of 25 March 2021 on the basis of Article 263 TFEU could not give rise to any obligation on the part of the Commission to pay the applicant the interest which it claims.
135
The applicant submits that it retains a legal interest in the annulment of the letter of 25 March 2021. A finding of illegality with respect to the applicant could be the basis for a possible action for damages aimed at making good the damage caused by that letter. It maintains that it also has an interest in challenging that letter in order to prevent future repetition of the alleged illegality. In addition, annulment of that letter would mean that the Commission would be required to reconsider its response regarding compliance with the annulling judgment under Article 266 TFEU and therefore to apply EU law correctly by paying the applicant the interest owed to it.
136
It is settled case-law that an action for annulment brought by a natural or legal person is admissible only in so far as the applicant has an interest in the annulment of the contested measure. That interest must be vested and present and is evaluated as at the date on which the action is brought. It must also continue until the final decision (see judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 42 and the case-law cited).
137
Such an interest presupposes that annulment of that measure must of itself be capable of having legal consequences or, in other words, that the action must be liable, if successful, to procure an advantage for the party that brought it (see order of 25 November 2014, Global Steel Wire v Commission, T‑429/10 and T‑578/10, not published, EU:T:2014:1008, paragraph 18 and the case-law cited).
138
Submissions seeking annulment of the refusal of an EU institution, body, office or agency to recognise a right to compensation which an applicant also claims under Articles 268 and 340 TFEU must be dismissed as inadmissible, since the applicant does not, in principle, demonstrate any interest in submitting such a claim in addition to his or her claim for compensation (see, to that effect, judgments of 13 June 1972, Compagnie d’approvisionnement, de transport et de crédit and Grands moulins de Paris v Commission, 9/71 and 11/71, EU:C:1972:52, paragraphs 9 to 11, and of 17 July 2024, Montanari v EUCAP Sahel Niger, T‑371/22, EU:T:2024:494, paragraph 63 and the case-law cited).
139
It must be observed that, in the letter of 25 March 2021, the Commission takes a position on the starting point of the limitation period for an action for damages provided for in Article 46 of the Statute of the Court of Justice of the European Union, namely the date of provisional payment of the fine by the applicant. The Commission then considered that that action was time-barred and therefore rejected the applicant’s application on that ground.
140
It must be held that, by its application for annulment, the applicant in fact seeks to obtain the same financial result as it seeks by its claim for damages. Therefore, the applicant has not demonstrated an interest in obtaining the annulment of the letter of 25 March 2021 in addition to the satisfaction of its claim for damages, as is also apparent from the subsidiary nature of the present application for annulment.
141
Accordingly, the claim for annulment must be rejected as inadmissible, without there being any need to rule on the plea of inadmissibility raised in the alternative.
IV. Costs
142
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. According to Article 134(3) of those rules, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.
143
In the present case, since each party has been unsuccessful in part, they must be ordered each to bear their own costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber, sitting with five Judges)
hereby:
1.
Orders the European Commission to pay Air Canada compensation in the amount of EUR 4264 896.70 for the damage sustained;
2.
Orders that the compensation referred to in point 1 be increased by default interest for the period from 5 February 2021 until payment of that compensation in full at a rate of 3.5%;
3.
Dismisses the action as to the remainder;
4.
Orders Air Canada and the Commission each to bear their own costs.
Papasavvas
Truchot
Kanninen
Sampol Pucurull
Perišin
Delivered in open court in Luxembourg on 25 March 2026.
V. Di Bucci
Registrar
M. van der Woude
President
(
*1
)	Language of the case: English.