62019TJ0610
JUDGMENT OF THE GENERAL COURT (Seventh Chamber, Extended Composition)
19 January 2022 (
*1
)
(Action for annulment and for damages – Competition – Abuse of dominant position – Slovak market for broadband telecommunications services – Decision finding an infringement of Article 102 TFEU and Article 54 of the EEA Agreement – Judgment annulling the decision in part and reducing the amount of the fine imposed – Refusal of the Commission to pay default interest – Article 266 TFEU – Article 90(4)(a) of Delegated Regulation (EU) No 1268/2012 – Sufficiently serious breach of a rule of law conferring rights on individuals – Loss of use of the amount of the fine that had been unduly paid – Loss of profits – Default interest – Rate – Harm)
In Case T‑610/19,
Deutsche Telekom AG, established in Bonn (Germany), represented by P. Linsmeier, U. Soltész, C. von Köckritz and P. Lohs, lawyers,
applicant,
v
European Commission, represented by P. Rossi and L. Wildpanner, acting as Agents,
defendant,
APPLICATION, first, pursuant to Article 263 TFEU, for the annulment of the Commission decision of 28 June 2019 refusing to pay to the applicant default interest on the principal amount of the portion of the fine repaid following the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930), and, secondly, pursuant to Article 268 TFEU, seeking compensation for loss of profit as a result of the loss of use of that principal amount or, in the alternative, for the harm resulting from the Commission’s refusal to pay default interest on that amount,
THE GENERAL COURT (Seventh Chamber, Extended Composition),
composed of R. da Silva Passos (Rapporteur), President, V. Valančius, I. Reine, L. Truchot and M. Sampol Pucurull, Judges,
Registrar: S. Jund, Administrator,
having regard to the written part of the procedure and further to the hearing on 30 June 2021,
gives the following
Judgment
Background to the dispute
1
On 15 October 2014, the European Commission adopted Decision C(2014) 7465 final relating to proceedings under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39523 – Slovak Telekom), rectified by Commission Decision C(2014) 10119 final of 16 December 2014, and also by Commission Decision C(2015) 2484 final of 17 April 2015 (‘the 2014 Decision’). Articles 1 and 2 of the 2014 Decision read as follows:
‘Article 1
1.   The undertaking consisting of Deutsche Telekom AG and Slovak Telekom a.s. has committed a single and continuous infringement of Article 102 of the Treaty and Article 54 of the EEA Agreement.
2.   The infringement lasted from 12 August 2005 until 31 December 2010 and consisted of the following practices:
(a)
withholding from alternative operators network information necessary for the unbundling of local loops;
(b)
reducing the scope of its obligations regarding unbundled local loops;
(c)
setting unfair terms and conditions in its Reference Unbundling Offer regarding collocation, qualification, forecasting, repairs and bank guarantees;
(d)
applying unfair tariffs which do not allow an equally efficient competitor relying on wholesale access to the unbundled local loops of Slovak Telekom a.s. to replicate the retail broadband services offered by Slovak Telekom a.s. without incurring a loss.
Article 2
For the infringement referred to in Article 1, the following fines are imposed:
(a)
a fine of EUR 38838000 on Deutsche Telekom AG and Slovak Telekom a.s., jointly and severally;
(b)
a fine of EUR 31070000 on Deutsche Telekom AG.
The fines shall be paid in euro within three months of the date of notification of this Decision to the following account held in the name of the European Commission:
…
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 this Decision is adopted, plus 3.5 percentage points.
Where an undertaking referred to in Article 1 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 90 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)].’
2
The applicant, Deutsche Telekom AG, brought an action against the 2014 Decision on 24 December 2014. That action was registered under number T‑827/14.
3
On 16 January 2015, the applicant paid the fine of EUR 31070000 for which it was the sole debtor.
4
By judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930), the Court held that, in the 2014 Decision, the Commission had failed to show that Slovak Telekom’s pricing practice, referred to in Article 1(2)(d) of that decision, had had exclusionary effects before 1 January 2006. Furthermore, the Court found that the applicant’s turnover was not capable of reflecting its individual conduct in committing the infringement in question and that that turnover could not therefore serve as a basis for calculating an additional fine imposed solely on the applicant for the purposes of deterrence.
5
Thus, in the first place, the Court annulled Article 1(2)(d) of the 2014 Decision in so far as that provision stated that, during the period between 12 August and 31 December 2005, the applicant had applied unfair tariffs which did not allow an equally efficient competitor relying on wholesale access to Slovak Telekom’s unbundled local loops to replicate the retail services offered by Slovak Telekom without incurring a loss.
6
In the second place, the Court annulled Article 2 of the 2014 Decision in so far as it set the amount of the fine for which Slovak Telekom and the applicant were held jointly and severally liable at EUR 38838000 and in so far as it set the amount of the fine for which the applicant was solely liable at EUR 31070000.
7
In the third place, first, the Court reduced the amount of the fine for which Slovak Telekom and the applicant were held jointly and severally liable by EUR 776037 and set that amount at EUR 38061963. Secondly, the Court reduced the amount of the fine for which the applicant was solely liable by EUR 12039019 and set that amount at EUR 19030981.
8
In the fourth place, the Court dismissed the remainder of the action and divided the costs.
9
Following an exchange of letters which began on 13 December 2018, the Commission refunded EUR 12039019 to the applicant on 19 February 2019.
10
On 12 March 2019, the applicant requested the Commission to pay it default interest for the period from 16 January 2015, the date on which it had paid the fine for which it was the sole debtor (see paragraph 23 above), to 19 February 2019, the date on which the Commission had refunded the portion of the fine that had been held not to be payable in the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930) (see paragraph 9 above). The default interest claimed by the applicant amounted to EUR 1750 522.83 and corresponded to the application of a rate of 3.55% to the sum of EUR 12039019 which had been refunded by the Commission. The rate of 3.55% represented the rate applied by the European Central Bank (ECB) to its principal refinancing operations in January 2015, namely 0.05%, increased by three and a half percentage points.
11
By letter of 28 June 2019 (‘the contested decision’), the Commission refused to pay default interest to the applicant.
12
First, in the contested decision, the Commission stated that, on 19 February 2019, it had repaid the nominal amount of the excess fine, that is to say, the difference between the amount of the fine initially imposed on the applicant in the 2014 Decision and the amount of the fine actually payable following the reduction applied by the Court in the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930). The Commission clarified that the nominal amount of the excess fine was not accompanied by interest on the ground that the return yielded by that amount had been negative.
13
In the contested decision, the Commission referred to Article 90 of Delegated Regulation No 1268/2012.
14
In that regard, the Commission explained that, where fines were paid provisionally pending the exhaustion of legal remedies, it had to secure provisionally cashed amounts by ‘having them invested in financial assets thus ensuring the security and liquidity of the monies while also aiming at yielding a positive return’. Those explanations correspond, in essence, to the provisions of Article 90(2) of Delegated Regulation No 1268/2012.
15
The Commission also referred to the provisions of Article 90(4)(a) of Delegated Regulation No 1268/2012, namely that ‘where the fine … has been cancelled or reduced, … the amounts unduly collected together with the interest yielded shall be repaid … [and if] the overall return yielded for the relevant period has been negative, the nominal value of the amounts unduly collected shall be repaid’.
16
Secondly, in the contested decision, the Commission examined the applicant’s argument that it was entitled, in accordance with the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), to receive default interest at the rate applied by the ECB to its principal refinancing operations plus three and a half percentage points. In response to that argument, the Commission explained that that judgment did not constitute a legal basis for paying the default interest claimed by the applicant. In addition, it argued that that judgment had not revoked its obligations under Article 90(4)(a) of Delegated Regulation No 1268/2012. Lastly, it stated that it had lodged an appeal against that judgment, which was therefore not final.
17
On the basis of those explanations, the Commission concluded that it was unable to grant the applicant’s request that it pay default interest on the portion of the amount of the fine which had been held by the Court not to be payable in the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930).
Procedure and forms of order sought
18
By application lodged at the Registry of the General Court on 9 September 2019, the applicant brought the present action.
19
On 2 October 2019, the Commission requested that the proceedings be stayed pursuant to Article 69(a) of the Rules of Procedure of the General Court, pending the final decision in the case giving rise to the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39). On 10 October 2019, the applicant opposed that request. On 22 October 2019, the President of the Ninth Chamber of the General Court decided not to stay the proceedings.
20
The written part of the procedure was closed on 8 May 2020.
21
On 25 February 2021, the parties were invited, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, to submit their observations on the conclusions which they drew, in the context of the present case, from the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39). The parties complied with that invitation within the prescribed period.
22
Acting on a proposal from the Seventh Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the case to a Chamber sitting in extended composition.
23
Acting on a proposal from the Judge-Rapporteur, the Court (Seventh Chamber, Extended Composition) decided to open the oral part of the procedure and requested the parties to reply to several written questions. The Commission was also requested to produce a document. The parties complied with those requests within the prescribed period.
24
The parties presented oral argument and answered the questions put to them by the Court at the hearing on 30 June 2021.
25
The applicant claims that the Court should:
–
annul the contested decision;
–
order the European Union, represented by the Commission, to pay the applicant financial compensation of EUR 2580 374.07 for the harm sustained by the applicant because, for the period from 16 January 2015 to 19 February 2019, it was unable to use the amount unduly paid with the result that it was unable to generate the revenue which that amount would usually allow it to generate or to reduce its capital costs accordingly;
–
in the alternative, should the Court dismiss the second head of claim, pay the applicant financial compensation of EUR 1750 522.83 for the harm sustained by the applicant because the Commission refused to pay it, for the period from 16 January 2015 to 19 February 2019, default interest on the amount of EUR 12039019, calculated on the basis of the rate applied by the ECB to its principal refinancing operations, increased by three and a half percentage points;
–
in the further alternative, pay the applicant compensation in the amount of another sum deemed appropriate by the Court, calculated on the basis of a rate of default interest deemed appropriate by the Court;
–
declare that the amount to be paid by the Commission in accordance with the second, third or fourth heads of claim shall, for the period from the date of delivery of the judgment in the present case and until payment in full by the Commission, bear interest at the rate applied by the ECB to its principal refinancing operations, increased by three and a half percentage points, or, in the alternative, at another rate of default interest deemed appropriate by the Court;
–
order the Commission and the European Union to pay the costs.
26
The Commission contends that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs.
Law
27
In its first head of claim, the applicant seeks annulment of the contested decision. In its second to fourth heads of claim, it primarily seeks compensation for loss of profit resulting from the loss of use of the principal amount of the portion of the fine that it paid unduly and, in the alternative, compensation for the harm resulting from the Commission’s refusal to pay default interest on that amount. In its fifth head of claim, the applicant requests that the Commission be ordered to pay default interest – starting from the date of delivery of the judgment to be given and continuing until full payment – on the amount to be paid by the Commission in accordance with the second, third or fourth heads of claim.
28
In the circumstances of the present case, the Court considers it appropriate to examine, in the first instance, the claims for damages and the claim for default interest to be paid from the date of delivery of the present judgment. The claim for annulment must be examined second.
The claims for damages
29
In its second head of claim, the applicant seeks, principally, compensation for loss of profit resulting from loss of use, in the period from 15 January 2015 to 19 February 2019, of the amount of the fine which it unduly paid. In its third head of claim, the applicant seeks, in the alternative, compensation for the harm which it claims to have sustained during the same period owing to the Commission’s refusal, contrary to the first paragraph of Article 266 TFEU, to pay it default interest calculated on the basis of the rate applied by the ECB to its principal refinancing operations, increased by three and a half percentage points. In its fourth head of claim, it seeks, in the further alternative, compensation for the harm which it claims to have sustained owing to unpaid default interest calculated on the basis of a rate of default interest that the Court considers appropriate. In its fifth head of claim, it asks that the Commission be ordered to pay default interest starting from the date of delivery of the judgment to be given.
30
The second paragraph of Article 340 TFEU provides that, in the case of non-contractual liability, the European Union must, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.
31
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).
32
If any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions for non-contractual liability on the part of the European Union. Nor is the EU judicature required to examine those conditions in any particular order (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 148 and the case-law cited).
33
It is in the light of those considerations that the applicant’s claims must be examined.
The principal claim for damages, seeking compensation for loss of profit on account of loss of the use of the unduly paid amount of the fine
34
Principally, the applicant seeks compensation for loss of profit in the amount of EUR 2580 374.07 which corresponds, in essence, to the annual return on its capital employed (‘RCE’) or to the weighted average cost of its capital (‘WACC’) between 2015 and 2018. The applicant submits that that harm was caused by a sufficiently serious breach of the first paragraph of Article 266 TFEU and of Article 23(2) and (3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1).
35
More specifically, the applicant alleges a loss of profit on the ground that, if it had been able to continue to manage the sum of which it was unlawfully deprived, it could have generated revenue. It explains that it could have carried out economic activities and financed investments with the sum corresponding to the unduly paid amount. In that case, the applicant would have raised less external capital (and thus saved capital costs) or been able to finance additional investments with the unduly paid amount of the fine and to achieve a higher return.
36
In that regard, the applicant first details its RCE between 2015 and 2018. It explains that the application of that return to the sum of EUR 12039019, that is, the unduly paid amount of the fine, enables its loss to be evaluated at EUR 2580 374.07. It states that, between 2015 and 2018, it pursued numerous investment opportunities such as developing fibre-optic networks, constructing new mobile telephone network antennas and expanding storage services in the context of cloud computing. It thereby infers that, if it had had access to the amount unduly paid to the Commission, it could have likewise used that amount for those investment activities.
37
Secondly, the applicant explains that a very similar picture emerges if it bases the evaluation of its loss on its WACC after tax during the same period. It states that, in the telecommunications sector, the WACC is a recognised benchmark for performing an economic assessment of investments and is decisive for an undertaking’s return objectives. On that point, the applicant refers to paragraph 2 of the Communication from the Commission on the calculation of the cost of capital for legacy infrastructure in the context of the Commission’s review of national notifications in the EU electronic communications sector (OJ 2019 C 375, p. 1). According to the applicant, the fact that the WACC values constitute accurate individual data as far as it is concerned is shown by the values determined annually by the Bundesnetzagentur (Federal Network Agency, Germany), which are higher than the average WACC on which the applicant bases its entitlement to compensation. It also adduces an estimate of regulatory WACCs in the Member States carried out by a consultancy firm.
38
The Commission disputes the applicant’s claims.
39
According to settled case-law that 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 falls to the applicant to adduce conclusive proof both of the existence and of 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).
40
First, it must be observed that the applicant does not show that it would necessarily have invested the sum of which it was deprived in its business. The sum which was held by the Court not to be payable and which had initially been overpaid by the applicant could have been used for a number of other purposes.
41
Secondly, the applicant does not show that the loss of use of the amount of the fine unduly paid to the Commission led it to abandon specific projects which were likely to earn it an amount equivalent to the RCE or WACC.
42
As regards the RCE quoted by the applicant, it must be observed that that figure corresponds to the average profitability of all the applicant’s investments with all the forms of capital (equity and long-term debt) which it used.
43
It is true that, in the reply, the applicant refers to a number of investments with regard to the RCE, namely investments of approximately EUR 1.7 thousand million in the acquisition of new mobile telephony licences, investments of approximately EUR 108.1 million in research and development and investments of approximately EUR 101.3 million in intangible fixed assets to be capitalised that it itself created.
44
However, the applicant merely claims that it could have financed additional investments with the sum of which it was deprived, without providing further details. It does not therefore specifically identify a specific project in which it could have invested but abandoned. On the contrary, it states that it took advantage of numerous investment opportunities between 2015 and 2018. Moreover, it does not provide the return on each of the projects it mentions.
45
As regards the WACC, it is defined as the weighted average of the cost of all the undertaking’s sources of financing. More specifically, it is the weighted average of the cost of equity (the risk-free rate added to a market risk premium tailored to the undertaking’s characteristics by using a beta coefficient) and the cost of debt. The cost of equity and the cost of debt are projected, not historic, costs. The WACC reflects investors’ ex ante expectation in return for taking a risk.
46
However, in support of its claims, the applicant quotes an annual WACC, that is to say an average rate for all its projects and not the rate applicable to a particular project. As in its claim based on the RCE, it has not identified any specific project to which it would have allocated the sum of which it was deprived, nor does it identify the rate of return which it would have obtained if the specific project in question had actually been carried out, which was again confirmed at the hearing in response to a question from the Court.
47
Thirdly, the applicant does not demonstrate that it did not have the funds necessary to pursue an investment opportunity relating to a specific investment or, more generally, that it did not have an alternative source of finance. In that regard, it is true that, in the reply, the applicant explains that it has a significant level of debt and that it is stretched to its financial limits. However, it should be noted that the sum of which it was deprived is modest in relation to its balance sheet, equity and debt, which amount to several tens of thousands of millions of euro. As the Commission points out, the evidence produced by the applicant in the reply shows that the applicant had equity capital of EUR 45.6 thousand million in the third quarter of 2019. Furthermore, the evidence produced by the applicant shows that it also had substantial cash and cash equivalents for the period between 2015 and 2019, amounting on average to EUR 5.4 thousand million. The unduly paid amount of the fine corresponds to approximately 0.22% of the applicant’s average cash and cash equivalents.
48
Thus, the applicant has not shown that it was prevented from making an investment which would have yielded a return corresponding to the RCE or WACC that it relies on.
49
That finding is not challenged by the applicant’s argument that, in the telecommunications sector, the WACC is a recognised benchmark for performing an economic assessment of investments and is decisive for an undertaking’s return objectives.
50
First, in paragraph 2 of the Communication on the calculation of the cost of capital for legacy infrastructure in the context of [its] review of national notifications in the EU electronic communications sector, the Commission explains that the cost of capital is the opportunity cost of making a ‘specific investment’ instead of a different investment with equal risk. It adds that the cost of capital is thus the rate of return required by a company to make a ‘given investment’. Secondly, the automatic application of the applicant’s WACC to any loss of a sum of money that it sustained would be tantamount to finding that the applicant was definitely denied the opportunity to invest in a given project that would have generated a return equivalent to that WACC. Such an approach would be incompatible with the fact that the WACC incorporates a risk premium. Nor would it be compatible with the applicant’s obligation to demonstrate that it has sustained actual and certain damage.
51
In those circumstances, the applicant has not demonstrated that it sustained an actual and certain loss of profit which could be based either on the RCE or the WACC.
52
It follows that the principal claim seeking compensation for loss of profit equivalent to the applicant’s RCE or WACC on account of the loss of use of the unduly paid amount of the fine must be dismissed on the ground that the condition relating to proof of the reality and certainty of the damage is not met, without it being necessary to examine, first, whether the Commission committed sufficiently serious breaches of a rule of law conferring rights on individuals and, secondly, whether there was a causal link between those sufficiently serious breaches and the alleged loss of profit (see paragraph 32 above).
The alternative claim for compensation for the harm resulting from the Commission’s refusal to pay default interest
53
First, the applicant submits that the Commission’s refusal to pay it default interest constitutes not only a breach of the law vitiating the contested decision but also a sufficiently serious breach of the first paragraph of Article 266 TFEU. Secondly, it submits that that sufficiently serious breach is the direct cause of the harm sustained, which consists in the loss of default interest.
– The existence of a sufficiently serious breach of the first paragraph of Article 266 TFEU
54
The applicant submits first of all that, where the Courts of the European Union find that the amount of a fine has been unduly paid, the first paragraph of Article 266 TFEU requires the Commission to pay default interest when repaying that amount. Thus, a total refusal to pay default interest constitutes a sufficiently serious breach of that provision.
55
Next, the applicant argues that the entitlement to payment of default interest is not affected by Article 90(4)(a) of Delegated Regulation No 1268/2012. Assuming that that provision may be interpreted as governing entitlement to the payment of default interest, the applicant pleads that it is unlawful under Article 277 TFEU.
56
Lastly, the applicant submits that the obligation to pay default interest arises as soon as the resources are no longer available to the party concerned, that is to say, in the present case, on the date on which the applicant paid the fine.
57
The Commission replies, on the basis of the arguments put forward in response to the claim for annulment, that it did not infringe Article 266(1) TFEU and that such a breach, were it to be accepted, would not be sufficiently serious.
58
First, the Commission submits that it follows from the first paragraph of Article 266 TFEU that it is only required to make repayment based on the principle of unjust enrichment. In other words, that provision does not require it to add default interest to repayment of an unduly received fine. The Commission adds that the Courts of the European Union distinguish between different types of interest, namely default interest, which is paid at a standard rate and penalises late payment; compensatory interest, which is payable for damage caused unlawfully; and interest yielded, which is to be reimbursed in the event of repayment.
59
Secondly, the Commission submits that the payment it made to the applicant takes account of the interest yielded in accordance with the combined provisions of Article 90 of Delegated Regulation No 1268/2012 and Article 83 of 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) (‘the Financial Regulation’). According to the Commission, payment of the interest yielded is intended to compensate the applicant for the Commission’s unjust enrichment owing to the excess fine. It explains that, in the present case, it invested the amount of the fine which the applicant had paid, but the return on that investment was negative. Thus, its ‘enrichment’ on account of the excess fine paid by the applicant was negative or equal to zero. In addition, the Commission asserts that, following delivery of the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930), it took into account, without delay, the interest yielded in order to reimburse the applicant for the unjust enrichment resulting from the unduly received amount of the fine.
60
Thirdly, the Commission maintains that it was not required to pay default interest.
61
To begin with, the Commission explains that the purpose of default interest cannot be to encourage it to repay, before delivery of the judgment reducing the amount of the fine, the sum which it unduly received. It adds that that interest should not be calculated from the date of payment of the fine, that is, in the present case, 16 January 2015. It submits that it cannot be late in paying before the Court has even found it to be under an obligation to pay, that is, in the present case, before the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930).
62
Next, the Commission submits that it is required to pay default interest only where it refuses to repay a fine and the interest yielded following a judgment delivered by an EU Court reducing or cancelling the amount of that fine. In that case, the starting date for the obligation to pay default interest is set after the delivery of the judgment in question.
63
Lastly, the Commission argues that the plea of illegality raised against Article 90(4)(a) of Delegated Regulation No 1268/2012 is unfounded.
64
Fourthly, the Commission argues that the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), introduces an obligation for it to pay a new type of interest which the Court of Justice also describes as ‘default interest’. It interprets that judgment as meaning that it should pay such interest even if it is not late in paying, that is to say, without it being in the position of a debtor who has not paid a due and determined sum within the prescribed period. In its view, such interest is, on the contrary, compensatory.
65
In addition, the Commission explains that the obligation to pay default interest pursues two objectives, namely to compensate the creditor and to penalise the debtor’s unlawful conduct resulting from the late payment of its debt. However, it submits that there is a contradiction between those two objectives. A fine which it imposes cannot, during the same period and simultaneously, both be payable pursuant to a valid and enforceable decision on the basis of Article 299 TFEU and have to be repaid by it. It is only in the exceptional case where the Commission’s decision is deemed to be non-existent that the obligation to pay the fine contained in that decision is deprived of a legal basis ex tunc. Thus, the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), should be understood as meaning that the obligation to pay default interest is not intended to penalise a delay in the repayment of the fine. The obligation to repay the fine has existed from the date of the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930), as follows from the first paragraph of Article 266 TFEU.
66
Fifthly, the Commission considers that the principles laid down in the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), are not applicable in the present case.
67
In that regard, the Commission explains that, in the case giving rise to the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), the Court had previously annulled in its entirety the part of its decision imposing a fine on Printeos SA on account of an inadequate statement of reasons. Thus, following the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), the Commission could resume the procedure at the stage where a breach was found and again exercise its power to impose fines.
68
By contrast, in the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930), the Court reduced and therefore altered the amount of the fine in the exercise of its unlimited jurisdiction on the basis of Article 261 TFEU and Article 31 of Council Regulation No 1/2003.
69
In the case that gave rise to the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930), the power to impose penalties was transferred to the EU Courts, and the Court substituted itself for the Commission in reassessing the amount of the fine. The exercise of that power by the Court can only have effects ex nunc. The reduction in the amount of the fine results from the Court’s own assessment, which replaced that of the Commission. The Court itself assessed the factual situation and exercised the power to impose penalties. That reduction in the amount of the fine was determined for the first time on the date of the judgment delivered by the Court. No debt was previously owed by the Commission, still less a specific amount.
70
The Commission infers from this that, where the EU Courts exercise their unlimited jurisdiction, an application ex tunc of default interest is not possible.
71
It must be observed at the outset that 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 measures necessary to ensure compliance with the annulling judgment, to which the applicant’s right to full compliance with that obligation corresponds.
72
As regards the existence of a sufficiently serious breach of the first paragraph of Article 266 TFEU, it must be borne in mind that where amounts are received in breach of EU law, a right of restitution with interest arises under EU law. That is the case, in particular, where the amounts were received pursuant to an EU measure declared invalid or annulled by the EU judicature (see judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraphs 66 and 67 and the case-law cited).
73
In particular, where an EU Court annuls an EU measure involving payment of an amount to the European Union, payment of default interest constitutes a measure giving effect to a judgment annulling a measure, for the purposes of the first paragraph of Article 266 TFEU, 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 (judgments of 12 February 2015, Commission v IPK International, C‑336/13 P, EU:C:2015:83, paragraph 30, and of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraph 68; see also, to that effect, 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 55).
74
As regards the determination of the Commission’s obligations under Article 266 TFEU to comply with a judgment cancelling and reducing the amount of a fine imposed on an undertaking for infringing the competition rules, foremost amongst those is the Commission’s obligation to repay all or part of the fine paid by the undertaking in question in so far as that payment must be described as a sum unduly paid following the judgment. That obligation applies not only to the principal amount of the fine overpaid, but also to default interest on that amount (see, to that effect, judgments of 10 October 2001, Corus UK v Commission, T‑171/99, EU:T:2001:249, paragraphs 52 and 53; and of 8 July 2004, Corus UK v Commission, T‑48/00, EU:T:2004:219, paragraph 223; and order of 4 May 2005, Holcim (France) v Commission, T‑86/03, EU:T:2005:157, paragraph 30).
75
The payment of default interest on the amount overpaid would seem to be an essential component of the Commission’s obligation to restore the applicant to his or her original position following a judgment of annulment, or a judgment exercising the Court’s unlimited jurisdiction (judgment of 10 October 2001, Corus UK v Commission, T‑171/99, EU:T:2001:249, paragraph 54; see also, to that effect, judgment of 12 February 2019, Printeos v Commission, T‑201/17, EU:T:2019:81, paragraph 56).
76
It follows that, in not paying any default interest on the principal amount of the fine repaid following a judgment cancelling or reducing the amount of a fine imposed on an undertaking for infringing competition rules, the Commission has failed to take a step necessary to comply with that judgment and has disregarded, in so doing, its obligations under Article 266 TFEU (order of 4 May 2005, Holcim (France) v Commission, T‑86/03, EU:T:2005:157, paragraph 31; see also, to that effect, judgment of 8 July 2008, BPB v Commission, T‑53/03, EU:T:2008:254, paragraph 488).
77
It is true, first, that Commission decisions which impose a pecuniary obligation on persons other than Member States are enforceable under Article 299 of the Treaty. Next, under Article 278 TFEU, actions brought before the EU Courts against those types of decision do not have suspensory effect. Lastly, Commission decisions are presumed to be lawful until such time as they are annulled or withdrawn (see judgment of 17 June 2010, Lafarge v Commission, C‑413/08 P, EU:C:2010:346, paragraph 81 and the case-law cited).
78
It is also true that an obligation to pay default interest can arise only where the amount of the principal sum owed is certain or can at least be ascertained on the basis of established objective factors (judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraph 55).
79
However, in the first place, it must be observed that Article 83 of the Financial Regulation applicable in the present case provided, inter alia:
‘1.   Amounts received by way of fines, penalties and sanctions, and any accrued interest or other income generated by them shall not be recorded as budgetary revenue as long as the decisions imposing them may be overruled by the [Court of Justice].
2.   The amounts referred to in paragraph 1 shall be recorded as budgetary revenue as soon as possible and at the latest in the year following the exhaustion of all legal remedies. Amounts that are to be returned to the entity that paid them, following a judgment of the [Court of Justice], shall not be recorded as budgetary revenue.
…
4.   The Commission shall be empowered to adopt delegated acts … concerning detailed rules on the amounts received by way of fines, penalties and accrued interest.’
80
Article 90 of Delegated Regulation No 1268/2012, applicable in the present case, provided, inter alia:
‘1.   Where an action is brought before the [Court of Justice] against a Commission decision imposing a fine or other penalties under the TFEU or Euratom Treaty and until such time as all legal remedies have been exhausted, the debtor shall either provisionally pay the amounts concerned on the bank account designated by the accounting officer or provide a financial guarantee acceptable to the accounting officer. The guarantee shall be independent of the obligation to pay the fine or penalty payment or other penalties and shall be enforceable upon first call. It shall cover the claim as to principal and the interest due as specified in Article 83(4).
2.   The Commission shall secure the provisionally cashed amounts by having them invested in financial assets thus ensuring the security and liquidity of the monies whilst also aiming at yielding a positive return.
…
4.   After the exhaustion of all legal remedies and where the fine or penalty has been confirmed any of the following measures shall be taken:
(a)
the amounts unduly collected together with the interest yielded shall be repaid to the third party concerned. In cases where the overall return yielded for the relevant period has been negative, the nominal value of the amounts unduly collected shall be repaid;
(b)
where a financial guarantee has been lodged, the latter shall be released accordingly.’
81
Article 24(2) of Commission Decision C(2013) 2488 final of 2 May 2013 on the internal procedure provisions for the recovery of amounts receivable arising from direct management and the recovery of fines, lump sums and penalty payments under the Treaties, replacing Decision C(2011) 4212 final of 17 June 2011, which was amended by Commission Decision C(2014) 2786 of 30 April 2014, also shows that, where an action is brought by the debtor before an EU Court against a Commission decision imposing a fine, the accounting officer is to collect the amounts in question ‘provisionally’ from the debtor. That provision also provides that, depending on the court’s final decision, both the principal and the interest are to be definitively entered in the accounts as revenue or ‘repaid’ proportionately to the economic operators as stipulated in the decision.
82
Thus, it is clear from the applicable legislation referred to in paragraphs 79 to 81 above that, where a company brings an action before the EU Courts in order to challenge a decision by which the Commission has imposed a fine on it, payment of the fine by that company is provisional until the legal remedies have been exhausted. That legislation also provides, ex ante, that a company which has paid a fine that has subsequently been cancelled or reduced is entitled to repayment of the amounts unduly received and therefore has a right to claim restitution.
83
In the second place, the Commission relies on the fact that, in the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930), the Court reduced the amount of the fine in the exercise of its unlimited jurisdiction.
84
However, first, it must be noted that, in the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930), the Court, prior to exercising its unlimited jurisdiction and reducing the amount of the fine imposed on the applicant, partially annulled the provision which found that the practice referred to in Article 1(2)(d) of the 2014 Decision existed (see paragraph 5 above). Furthermore, the Court annulled Article 2 of that decision in so far as it set the amount of the fine which the applicant alone was required to pay at EUR 31070000 (see paragraph 6 above).
85
As regards the effects of the annulment of a measure by the EU judicature, it operates ex tunc and, therefore, has the effect of retroactively eliminating the annulled measure from the legal order (see, to that effect, judgments of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraph 30; of 13 December 1995, Exporteurs in Levende Varkens and Others v Commission, T‑481/93 and T‑484/93, EU:T:1995:209, paragraph 46; and of 10 October 2001, Corus UK v Commission, T‑171/99, EU:T:2001:249, paragraph 50).
86
Next, it should be noted that neither the provisions or texts mentioned in paragraphs 79 to 81 above nor the case-law referred to in paragraphs 74 to 76 above make a distinction depending on whether an EU Court has only cancelled all or part of the fine imposed on an applicant or reduced that fine after having cancelled it.
87
Lastly, where an EU Court substitutes its own assessment for that of the Commission and reduces the amount of a fine in the exercise of its unlimited jurisdiction, it replaces, in the Commission’s decision, the amount initially set in that decision with the amount resulting from its own assessment. That reduction retroactively alters the Commission’s decision. A fine reduced following a fresh assessment by an EU Court is deemed to have always been that imposed by the Commission. As regards such a reduction, the Commission’s decision is therefore deemed, on account of the substitution effect of a judgment by the EU judicature, to have always been the decision that results from the EU judicature’s assessment (see, to that effect, judgment of 14 July 1995, CB v Commission, T‑275/94, EU:T:1995:141, paragraphs 60 to 65 and 85 to 87).
88
In the third place, first, encouragement ‘to comply with the judgment annulling that fine as soon as possible’ is only one of the two objectives of paying default interest envisaged by the Court of Justice in paragraph 30 of the judgment of 12 February 2015, Commission v IPK International (C‑336/13 P, EU:C:2015:83). However, the award of default interest from the date of provisional payment of the fine at issue pursues the other objective envisaged by the Court of Justice, namely compensation at a standard rate for the undertaking which paid that fine for the loss of use of its funds during the period from the date of provisional payment of that fine to the date of its repayment. Secondly, the obligation, in the event of annulment of a decision entailing the provisional payment of an amount such as a fine imposed for infringement of competition rules, to repay the amount paid together with default interest calculated from the date of payment of that amount is an incentive for the institution concerned to pay particular attention when adopting such decisions, which may entail an obligation for an individual to pay a considerable amount immediately (see, to that effect, judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraphs 85 and 86).
89
In the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), the Court of Justice therefore held that the award of default interest from the date of provisional payment of the fine did not pursue the objective of encouraging the Commission ‘to comply with the judgment annulling that fine as soon as possible’.
90
Thus, it is true that the purpose of the obligation to pay default interest cannot be to encourage the Commission to repay, before delivery of a judgment cancelling and reducing the amount of a fine which it imposed, an amount which it unduly received. However, the obligation to pay default interest in the event of the cancellation and reduction by the EU judicature of the amount of a fine imposed by the Commission does not pursue the objective of penalising an undue delay on the Commission’s part. The obligation to pay default interest in such a situation is intended, inter alia, to provide compensation at a standard rate for an objective delay which arises, first, from the length of the proceedings before the EU Courts; secondly, from the fact that the relevant financial rules provide that a company which has provisionally paid a fine which is subsequently cancelled or reduced is entitled to claim restitution (see paragraphs 79 to 82 above); and, thirdly, from the retroactive effect of the reduction in the amount of the fine ordered by the EU Courts (see paragraphs 84 to 87 above).
91
The Commission submits that, if it were to be considered to owe default interest on a date prior to the judgment of the EU judicature cancelling or reducing the amount of a fine, that would be inconsistent with the deterrent function of fines in competition cases. In that regard, it explains, first, that there is an intrinsic link between the prohibition of anticompetitive practices under Articles 101 TFEU and 102 TFEU and the imposition of fines; next, that those articles would be ineffective if they were not accompanied by the penalties provided for in Article 103(2)(a) TFEU; and, lastly, that fines should not be mitigated by external circumstances.
92
However, in the first place, it must be recalled that ‘deterrence’ is one of the factors to be taken into account in calculating the amount of the fine (judgments of 26 September 2013, Alliance One International v Commission, C‑679/11 P, not published, EU:C:2013:606, paragraph 73, and of 4 September 2014, YKK and Others v Commission, C‑408/12 P, EU:C:2014:2153, paragraph 84). It follows that the deterrent function of fines was necessarily taken into account by the Court in the judgment of 13 December 2018, Deutsche Telekom v Commission, (T‑827/14, EU:T:2018:930), when it exercised its unlimited jurisdiction to reduce, with retroactive effect, the amount of the fine for which the applicant was liable (see paragraph 87 above).
93
In the second place, it must be observed that the deterrent function of fines must be reconciled with the principle of effective judicial protection laid down in Article 47 of the Charter of Fundamental Rights of the European Union. Compliance with that principle is ensured by means of the review of legality provided for in Article 263 TFEU, supplemented by the unlimited jurisdiction in respect of the amount of the fine, provided for in Article 31 of Regulation No 1/2003. The EU Courts have the power to perform a review of both the law and the facts, to assess the evidence, to annul the contested decision and to alter the amount of a fine (see, to that effect, judgment of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraphs 62 and 63 and the case-law cited). It has also been held that, in order to satisfy the requirements of conducting a review exercising its powers of unlimited jurisdiction for the purpose of Article 47 of the Charter of Fundamental Rights with regard to the fine, the EU judicature is bound, in the exercise of the powers conferred by Articles 261 TFEU and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement (judgments of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 200, and of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 195). Unlimited jurisdiction is an additional safeguard for undertakings (see, to that effect, judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 445; of 6 October 1994, Tetra Pak v Commission, T‑83/91, EU:T:1994:246, paragraph 235; and of 17 December 2015, Orange Polska v Commission, T‑486/11, EU:T:2015:1002, paragraph 91).
94
In the third place, the deterrent function of fines must also be reconciled with the objectives pursued by the award of default interest following the exercise by EU Courts of their powers and, in particular, of their unlimited jurisdiction, namely, first, compensation at a standard rate to the undertaking which has provisionally paid that fine for the loss of use of its monies in the period from the date of provisional payment of the fine to the date on which it is repaid and, secondly, encouragement to the institution concerned to take particular care when adopting decisions, such as decisions imposing fines, which may entail an obligation for an individual to pay a considerable amount immediately (see paragraph 88 above).
95
Consequently, in the light of the reasons given in paragraphs 79 to 94 above, it must be held, first, that the applicant’s principal claim in the present case existed and was certain as to its maximum amount or at least could be determined on the basis of established objective factors at the date of provisional payment of the fine by the applicant, namely 16 January 2015. Secondly, the Commission was bound, pursuant to the first paragraph of Article 266 TFEU, to pay default interest on the portion of the amount of the fine held by the Court not to be due in the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930), in respect of the period between the date of provisional payment of the fine and the date of repayment of the portion of the fine held not to be due.
96
That conclusion is not called into question by the Commission’s arguments based, first, on Article 90(4) of Delegated Regulation No 1268/2012 and, secondly, on the contention that the interest payable from the date of payment of the fine must be classified as compensatory interest.
97
As regards the Commission’s arguments based on Article 90 of Delegated Regulation No 1268/2012 (see paragraph 80 above), it does not follow from that article that, where the Commission is required to repay the amount of a fine provisionally collected, it is, in any event, exempted from the obligation to include default interest on that amount (judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraph 73).
98
Furthermore, when the amount of ‘interest yielded’ within the meaning of Article 90(4) of Delegated Regulation No 1268/2012 is lower than that of the default interest payable, or even where there is no interest yielded since the return on the capital invested was negative, in order to comply with its obligation under Article 266 TFEU, the Commission is required to pay to the party concerned the difference between the amount of ‘interest yielded’, within the meaning of Article 90(4) of that delegated regulation, and the amount of default interest owed for the period from the date of payment of the amount in question to the date of its repayment (see, to that effect, judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraphs 75 and 76).
99
Thus, in the present case, since it is common ground that the investment by the Commission of the amount of the fine paid by the applicant pursuant to the 2014 Decision did not yield interest, the Commission was required, following the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930), to repay to the applicant the portion of the amount held not to be due together with default interest, without that being precluded by Article 90 of Delegated Regulation No 1268/2012 (see, by analogy, judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraph 77).
100
It should be added that the Commission cannot reasonably rely on the fact that the applicant did not, in the case giving rise to the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930), challenge Article 2 of the 2014 Decision, the fourth paragraph of which was based on Article 90 of Delegated Regulation No 1268/2012. Nor can it rely on the fact that the Court annulled Article 2 of that decision in part without calling into question the reference to Article 90 thereof.
101
Admittedly, in the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930), the Court annulled Article 2 of the 2014 Decision only in so far as it set the amount of the fine which the applicant alone was required to pay at EUR 31070000. In addition, the Court set the amount of the fine which the applicant alone was required to pay at EUR 19030981.
102
However, the fourth paragraph of Article 2 of the 2014 Decision does not concern the conditions under which, in the event of the annulment of that decision and the reduction of the amount of the fine specified therein, the Commission will repay, together with interest, the amount of the fine provisionally paid by that undertaking (see, to that effect, judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraph 92).
103
Furthermore, in the event of annulment of a decision imposing a fine for the infringement of competition rules and a reduction in the amount of the fine specified in that decision, the Commission’s obligation to repay all or part of the amount of the provisionally paid fine with default interest for the period from the date of provisional payment of that fine until the date of its repayment follows directly from Article 266 TFEU (see, to that effect, judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraph 94).
104
It follows that the Commission does not have the power to adopt, in an individual decision, the conditions under which it will pay default interest in the event of the annulment of a decision imposing a fine and a reduction in the amount of the fine specified in that decision which has been provisionally paid (see, to that effect, judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraph 95).
105
The Commission’s arguments based on Article 90 of Delegated Regulation No 1268/2012 must therefore be dismissed without there being any need to rule on the applicant’s plea of illegality in respect of that provision.
106
As regards the Commission’s arguments that the interest payable from the date of payment of the fine must be classified as compensatory interest, it should be noted that that category of interest is designed to compensate for the time that passes before the judicial assessment of the amount of the loss sustained, irrespective of any delay attributable to the debtor (see judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraph 56 and the case-law cited).
107
The Commission’s obligation to pay default interest in the present case from the date of the provisional payment by the applicant stems directly from the obligation under the first paragraph of Article 266 TFEU to comply with the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930).
108
The applicant’s principal claim was a claim for restitution relating to the provisional payment of a fine. That claim existed and was certain as to its maximum amount or at least could be determined on the basis of established objective factors at the date of that payment (see paragraphs 79 to 95 above) and did not require assessment by a court.
109
The interest payable in such circumstances is default interest and there can be no question, in the present case, of paying compensatory interest (see, to that effect, judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraphs 78 and 79).
110
The Commission is therefore not justified in maintaining that the interest for which it might be liable for the period between the date of provisional payment of the fine by the applicant and the expiry of the time limit for complying with the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930), must be considered compensatory interest.
111
It follows that the Commission infringed the first paragraph of Article 266 TFEU in refusing to pay default interest to the applicant on the portion of the amount of the fine which it had unduly received, for the period between 16 January 2015, the date of payment of the fine, and 19 February 2019, the date of repayment of the portion of the fine ultimately held by the Court not to be due in the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930).
112
Lastly, it is apparent from paragraphs 71 to 95 above that, following the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930), the Commission was, according to settled case-law, required to repay the applicant the portion of the amount of the fine that had been provisionally paid unduly, together with default interest, and had no discretion as to whether it would be appropriate to pay such interest (see, to that effect, judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraph 104).
113
Accordingly, in view of the absolute, unconditional duty imposed on the Commission by the first paragraph of Article 266 TFEU to pay such default interest, with no discretion in that regard, it must be held, in the present case, that the Commission committed a sufficiently serious breach of that rule of law which may render the European Union non-contractually liable pursuant to the second paragraph of Article 266 TFEU, read in conjunction with the second paragraph of Article 340 TFEU.
– The causal link and the damage to be compensated
114
The applicant submits that the sufficiently serious breach of the first paragraph of Article 266 TFEU committed by the Commission is the direct cause of the loss it has sustained, which consists of the deprivation of default interest. It explains that, under Article 83(2)(b) and Article 111(4)(a) of Delegated Regulation No 1268/2012, the appropriate rate of default interest is the rate applied by the ECB to its principal refinancing operations, increased by three and a half percentage points. According to the applicant, the rate of default interest to be applied in the present case is the rate of 3.55%, which corresponds to the rate applied by the ECB to its principal refinancing operations, that is to say 0.05% applicable in January 2015, increased by three and a half percentage points. It submits that the application of that rate to the sum of EUR 12039019, which it unduly paid, enables its losses to be evaluated at EUR 1750 522.83.
115
The Commission replies that it refused to pay default interest only from the date of the contested decision, 28 June 2019, so compensation could in any event be claimed solely from that date. Furthermore, it asserts that the applicant did not comply with the procedure laid down in Article 111 of Delegated Regulation No 1268/2012 and cannot therefore claim default interest within the meaning of Article 111(4)(a), read in conjunction with Article 83 thereof. Lastly, it submits that, should the Court consider that the principles identified in the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), were applicable in the present case, the applicable default interest rate would have to be the rate applied by the ECB to its principal refinancing operations, increased by one and a half percentage points, by analogy with Article 83(4) of that delegated regulation.
116
In the first place, it should be borne in mind that, in order for the non-contractual liability of the European Union to be capable of being established, the damage must flow sufficiently directly from the unlawful conduct of the institutions (judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 61).
117
In the present case, it must be held that the failure by the Commission to fulfil its obligation to pay default interest under the first paragraph of Article 266 TFEU has a sufficiently direct causal link with the harm consisting of the loss, in the period between 16 January 2015 and 19 February 2019, of default interest on the amount of which the applicant was unduly deprived (see, to that effect, judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraph 105).
118
In the second place, in the light of the case-law referred to in paragraph 39 above, the applicant is justified in claiming that it sustained actual and certain damage which is equivalent to the loss, in the period between 16 January 2015 and 19 February 2019, of default interest which represents compensation at a standard rate for loss of use of the unduly paid amount of the fine in that period.
119
The Commission submits that, even if it has to pay default interest, the rate of that interest should be set at a standard rate corresponding to the loss of use during the period in question, which in turn depends, at least in part, on the circumstances of the present case. First, the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), does not make it possible to determine the default interest rate applicable in the present case. That judgment does not state what interest rate is applicable to default interest. Next, assuming that the Court intended, by analogy, to require the Commission to pay interest at the rate provided for in Article 83(2)(b) of Delegated Regulation No 1268/2012, the Commission argues that that rate is not applicable by analogy in the present case. The amount of the Commission’s debt was set solely in the context of the Court’s exercise of its unlimited jurisdiction in the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930). Lastly, paragraph 81 of the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), may be understood as meaning that the rate laid down in Article 83(4) of that delegated regulation, that is to say the rate applied by the ECB to its principal refinancing operations, increased by one and a half percentage points, may apply mutatis mutandis in the present case.
120
It must be recalled that, in order to determine the amount of the default interest that must be paid to an undertaking which paid a fine imposed by the Commission, following the cancellation of that fine, the Commission must apply the rate set for that purpose by Delegated Regulation No 1268/2012 (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 56).
121
The Court of Justice considers that it follows that the Commission must apply the rate laid down in Article 83 of Delegated Regulation No 1268/2012, which fixes the interest rate for amounts receivable not repaid on the deadline (see, to that effect, judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraph 81).
122
Article 83 of Delegated Regulation No 1268/2012 appeared in Section 3 of Chapter 5 of Title IV of that delegated regulation. That chapter concerned ‘revenue operations’, and that section related to ‘establishment of amounts receivable’. That article, which implemented Article 78 of the Financial Regulation, was entitled ‘Default interest’ and provided:
‘1.   Without prejudice to any specific provisions deriving from the application of sector-specific regulations, any amount receivable not repaid on the deadline referred to in Article 80(3)(b) shall bear interest in accordance with paragraphs 2 and 3 of this Article.
2.   The interest rate for amounts receivable not repaid on the deadline referred to in Article 80(3)(b) shall be the rate applied by the European Central Bank to its principal refinancing operations, as published in the C series of the Official Journal of the European Union, in force on the first calendar day of the month in which the deadline falls, increased by:
(a)
eight percentage points where the obligating event is a public supply and service contract referred to in Title V;
(b)
three and a half percentage points in all other cases.
…
4.   In the case of fines, where the debtor provides a financial guarantee which is accepted by the accounting officer instead of payment, the interest rate applicable from the deadline referred to in Article 80(3)(b) shall be the rate referred to in paragraph 2 of this Article as in force on the first day of the month in which the decision imposing a fine has been adopted and increased only by one and a half percentage points.’
123
Article 111 of Delegated Regulation No 1268/2012 appeared in Section 5 of Chapter 6 of Title IV of that delegated regulation. That chapter concerned ‘payment of expenditure’, and that section related to the time limits for expenditure operations. That article, which implemented Article 92 of the Financial Regulation, was entitled ‘Payment time limits and default interest’ and provided in particular:
‘1.   The time allowed for making payments shall be understood as including validation, authorisation and payment of expenditure.
It shall begin to run from the date on which a payment request is received.
A payment request shall be registered by the authorised department of the authorising officer responsible as soon as possible and is deemed to be received on the date it is registered.
The date of payment is deemed to be the date on which the institution’s account is debited.
…
4.   On expiry of the time limits laid down in Article 92(1) of the Financial Regulation, the creditor shall be entitled to interest in accordance with the following conditions:
(a)
the interest rates shall be those referred to in Article 83(2) of this Regulation;
(b)
the interest shall be payable for the period elapsing from the calendar day following expiry of the time limit for payment laid down in Article 92(1) of the Financial Regulation up to the day of payment.’
124
As a preliminary point, it must be observed that in relying on the fact that the amount of its debt was set by the Court only in the exercise of its unlimited jurisdiction in the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930), the Commission still maintains that it was not required to pay default interest to the applicant for the period between the date of payment of the fine and the date of its repayment. That line of argument must be dismissed for the reasons set out in paragraphs 71 to 95 above. It should be added that the Commission’s obligation to pay default interest to the applicant stems directly from the first paragraph of Article 266 TFEU, with the result that, contrary to the Commission’s claims, the applicant is not required to submit a payment request in accordance with the procedure laid down in Article 111 of Delegated Regulation No 1268/2012.
125
In the first place, it must be recalled that, in the event of the annulment of a decision entailing the provisional payment of a fine, the award of default interest from the date of that payment is intended, first, to compensate at a standard rate the undertaking which paid the fine for the loss of use of its monies and, secondly, to encourage the Commission to take particular care when adopting such a decision (see paragraph 88 above).
126
The same applies in the event of the cancellation and reduction of the amount of the fine by the EU Courts.
127
In the second place, with regard to the objectives pursued by the default interest payable by the Commission following a judgment cancelling and reducing the amount of a fine, the Commission is in a different factual and legal situation from that of a company to which a decision imposing a fine is addressed and which provides a bank guarantee. The Commission’s rights and obligations vis-à-vis a company which has paid the fine differ from the rights and obligations of a company which provides a bank guarantee vis-à-vis the Commission.
128
In that regard, it must be pointed out that, where the undertaking concerned proceeds to the immediate payment of the fine imposed, it does no more than comply with the operative part of a decision which is enforceable in accordance with the normal system laid down by the Treaty (order of 12 December 2007, Atlantic Container Line and Others v Commission, T‑113/04, not published, EU:T:2007:377, paragraph 44; see also, to that effect, judgment of 21 April 2005, Holcim (Deutschland) v Commission, T‑28/03, EU:T:2005:139, paragraph 126). By contrast, replacing that payment with a stay of payment and a bank guarantee constitutes a derogation from that normal system (see, to that effect, order of 12 December 2007, Atlantic Container Line and Others v Commission, T‑113/04, not published, EU:T:2007:377, paragraph 44).
129
If the undertaking concerned chooses to pay the fine immediately while bringing an action for annulment of that fine, it may expect the Commission, in the event of the annulment or reduction of the amount of that fine, to repay not only the amount corresponding to the principal amount of the fine unduly paid, but also the default interest yielded by that sum (see, to that effect, order of 12 December 2007, Atlantic Container Line and Others v Commission, T‑113/04, not published, EU:T:2007:377, paragraph 43, and the case-law cited in paragraphs 74 to 76 above).
130
Admittedly, replacement of the immediate payment of the fine with a deferment of payment and a bank guarantee is now provided for by the relevant financial regulation and is offered, subject to conditions, by the Commission (see paragraphs 80 and 122 above). However, where a decision imposing a fine is annulled or the amount of a fine is reduced, the consequences will be different depending upon whether the undertaking has chosen immediate payment of the fine or a deferment of payment coupled with the provision of a bank guarantee (see, to that effect, judgment of 14 July 1995, CB v Commission, T‑275/94, EU:T:1995:141, paragraphs 82 to 86, and order of 12 December 2007, Atlantic Container Line and Others v Commission, T‑113/04, not published, EU:T:2007:377, paragraph 44).
131
Where a deferment of payment has been granted, the Commission is not required to reimburse a fine that was unduly paid since, ex hypothesi, the fine was not paid. For the same reason, the undertaking concerned was therefore not deprived of the use of the sum corresponding to the amount of the unduly received fine. The only financial damage that may have been sustained by the undertaking concerned is the consequence of its own decision to provide a bank guarantee (see, to that effect, judgment of 21 April 2005, Holcim (Deutschland) v Commission, T‑28/03, EU:T:2005:139, paragraph 129, and order of 12 December 2007, Atlantic Container Line and Others v Commission, T‑113/04, not published, EU:T:2007:377, paragraph 45).
132
In the third place, the Commission does not show, with incontrovertible evidence, that the application to claims for repayment of default interest at the rate applied by the ECB to its principal refinancing operations, increased by three and a half percentage points, provided for in Article 83(2)(b) of Delegated Regulation No 1268/2012, is disproportionate in the light of the objectives pursued by such default interest. Nor does it explain that the calculation of default interest on that basis would have a negative impact on the obligation incumbent on an undertaking to which a decision imposing a fine is addressed, to pay that fine immediately.
133
In the fourth place, it is true that, in paragraph 81 of the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), the Court of Justice did not state the precise provisions of Article 83 of Delegated Regulation No 1268/2012 to which it referred.
134
However, it must be observed that, in the same judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), the Court of Justice gave final judgment on the matter after setting aside point 2 of the operative part of the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), on the ground that the General Court had erred in law in rejecting Printeos’s request for payment of default interest for the period beginning on 31 March 2017. Thus, in paragraph 129 of the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), the Court of Justice held that it was appropriate to award default interest to Printeos at the rate applied by the ECB to its principal refinancing operations, plus three and a half percentage points, by analogy with Article 83(2)(b) of Delegated Regulation No 1268/2012.
135
In the fifth place, the applicant rightly states that if it had not paid the unduly set amount of the fine, it would also have had to pay default interest at the rate applied by the ECB to its principal refinancing operations, increased by three and a half percentage points, as provided for in Article 83(2)(b) of Delegated Regulation No 1268/2012. The applicant rightly infers that, after the cancellation and reduction of the fine, the Commission must be required to pay default interest on the basis of the same rate for the period during which it unduly collected the overpaid amount.
136
In the light of the foregoing, the compensation to the applicant at a standard rate for loss of use of its monies may be determined by applying, by analogy, the rate laid down in Article 83(2)(b) of Delegated Regulation No 1268/2012, namely the rate applied by the ECB to its principal refinancing operations in January 2015, that is to say 0.05%, increased by three and a half percentage points.
137
It is therefore appropriate to grant the claim made in the alternative in the third head of claim and to award damages in the amount of EUR 1750 522.83 to the applicant by way of compensation for the harm caused to it by the sufficiently serious breach of the first paragraph of Article 266 TFEU consisting of the loss of default interest at the rate of 3.55% in the period between 16 January 2015 and 19 February 2019 on the amount of the fine which it unduly paid.
138
Consequently, there is no need to rule on the claim put forward in the further alternative by the applicant in its fourth head of claim.
Interest on the compensation granted by the Court to the applicant
139
The applicant claims that the Court should increase the amount of compensation which may be awarded to it by default interest starting from the date of delivery of the judgment and continuing until full payment. That increase should be based on the rate applied by the ECB to its principal refinancing operations, increased by three and a half percentage points or, in the alternative, on a different rate of default interest that the Court considers appropriate.
140
The Commission contends that that claim should be rejected on the ground that the applicant is not entitled to compensation.
141
As regards a claim based on the EU’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, to that effect, judgment of 26 June 1990, Sofrimport v Commission, C‑152/88, EU:C:1990:259, paragraph 32 and the case-law cited).
142
In setting the default interest rate, it is appropriate to take into account 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). Under that provision, the interest rate applicable is to be calculated on the basis of the rate applied by the ECB to its principal refinancing operations as published in the C series of the Official Journal of the European Union in force on the first calendar day of the month in which the deadline falls, increased by three and a half percentage points (see, by analogy, orders of 14 January 2016, Commission v Marcuccio, C‑617/11 P‑DEP, not published, EU:C:2016:17, paragraph 12, and of 7 October 2020, Argus Security Projects v Commission and EUBAM Libya, T‑206/17 DEP, not published, EU:T:2020:476, paragraph 61).
143
In the present case, the compensation referred to in paragraph 137 above must be increased by default interest, starting from the date of delivery of the present judgment and continuing until full payment. The default interest rate will be that applied by the ECB to its principal refinancing operations on the date of the present judgment, increased by three and a half percentage points.
The claim for annulment
144
The applicant puts forward two pleas in law in connection with its claim for annulment. The first plea alleges infringement of the first paragraph of Article 266 TFEU in that, in the contested decision, the Commission refused to pay it default interest. The second plea alleges infringement of the second paragraph of Article 296 TFEU in that the contested decision is vitiated by a failure to state reasons or an inadequate statement of reasons.
145
As regards the second plea, alleging infringement of the second paragraph of Article 296 TFEU, it must be pointed out that, in the light of the wording of the contested decision (see paragraphs 12 to 17 above), the context in which it was adopted (see paragraphs 1 to 10 above) and all the legal rules governing the matter in question, the applicant was able to understand that the Commission had refused to pay it default interest on the grounds, first, that Article 266 TFEU required it only to pay the ‘return yielded’ referred to in Article 90(4)(a) of Delegated Regulation No 1268/2012 and, secondly, that the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), did not require the Commission to pay default interest to the applicant in the present case. The applicant’s understanding of the contested decision is, moreover, borne out by the arguments it raises in its action. Furthermore, it is apparent from paragraphs 72 to 111 above that the Court was able to assess, on the merits, the lawfulness of the Commission’s refusal to pay default interest to the applicant.
146
The second plea is therefore dismissed.
147
As regards the first plea, alleging infringement of the first paragraph of Article 266 TFEU on account of the Commission’s refusal to pay default interest, it is apparent from paragraphs 72 to 111 above that the Commission infringed that provision when, in the contested decision, it refused to pay default interest to the applicant on the portion of the fine which it had unduly received, for the period between 16 January 2015, the date of payment of the fine, and 19 February 2019, the date of repayment of the portion of the fine ultimately held by the Court not to be due in the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930).
148
The first plea must therefore be upheld and the contested decision annulled.
Costs
149
Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.
150
In the present case, the applicant has failed on its second head of claim. However, its first, third and fifth heads of claim have been upheld. Furthermore, the Commission is ordered to pay a large part of the compensation which the applicant has claimed for the harm it has sustained. Lastly, the documents before the Court do not show that, after the delivery of the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), the Commission decided to pay default interest to the applicant for the period between 16 January 2015 and 19 February 2019. In those circumstances, the Commission should bear its own costs pay half of the applicant’s costs. The applicant is to bear half of its own costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber, Extended Composition)
hereby:
1.
Orders the European Commission to pay Deutsche Telekom AG compensation in the amount of EUR 1 750 522.83 for the harm suffered;
2.
The compensation referred to in point 1 shall be increased by default interest, starting from the date of delivery of the present judgment and continuing until full payment, at the rate set by the European Central Bank (ECB) for its main refinancing operations, increased by three and a half percentage points;
3.
Annuls the Commission’s decision of 28 June 2019 refusing to pay default interest to Deutsche Telekom for the period from 16 January 2015 to 19 February 2019 on the principal amount of the fine repaid following the judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930);
4.
Dismisses the action as to the remainder;
5.
Orders the Commission to bear its own costs and to pay half of the costs incurred by Deutsche Telekom;
6.
Orders Deutsche Telekom to pay half of its own costs.
da Silva Passos
Valančius
Reine
Truchot
Sampol Pucurull
Delivered in open court in Luxembourg on 19 January 2022.
[Signatures]
Table of contents
Background to the dispute
Procedure and forms of order sought
Law
The claims for damages
The principal claim for damages, seeking compensation for loss of profit on account of loss of the use of the unduly paid amount of the fine
The alternative claim for compensation for the harm resulting from the Commission’s refusal to pay default interest
– The existence of a sufficiently serious breach of the first paragraph of Article 266 TFEU
– The causal link and the damage to be compensated
Interest on the compensation granted by the Court to the applicant
The claim for annulment
Costs
(
*1
)	Language of the case: German.