62003CC0123_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. In this case the Commission is appealing against an order of the Court of First Instance (2) dismissing its objection of inadmissibility in an action brought by Greencore Group plc (‘Greencore’) seeking annulment of an alleged Commission decision.
Background
2. In 1997, the Commission imposed a fine on Irish Sugar plc, a subsidiary of Greencore, under Article 86 of the EC Treaty (now Article 82 EC). (3)  In 1999 the Court of First Instance on application by Irish Sugar reduced the fine by EUR 916 674. (4)
3. In October 1999, shortly after the judgment of the Court of First Instance, Greencore faxed the Commission details of the Irish Sugar bank account into which that sum was to be repaid.  The fax concluded:
‘Please also confirm that you will pay interest on the sum refunded for the period from its payment to you by Irish Sugar plc until the date of refund.  Please advise the amount of interest.’
4. On 4 January 2000 the Commission transferred the principal sum due to the account but did not pay any interest.
5. In October 2001 the Court of First Instance gave judgment in Corus (5) in which it held that, in the case of a judgment annulling or reducing the fine imposed on an undertaking for infringement of the Treaty competition rules, the Commission was obliged under Article 34 of the ECSC Treaty (6) to repay not only the principal amount of the fine overpaid but also default interest on that amount. (7)
6. In November 2001 Greencore, referring to the Corus
judgment, requested the Commission to pay Irish Sugar EUR 154 892 by way of interest on the amount of the fine overpaid.
7. By letter of 11 February 2002 the Commission responded as follows:
‘The payment of the principal sum without interest on 4 January 2000 meant that the Commission refused to pay any interest.  You have not attacked this decision not to pay interest within the two months laid down in Article 230 EC Treaty (former Article 173).  Instead you chose to await the outcome of the Corus
judgment before you came back on this issue.
…
You are therefore precluded from taking advantage of the Corus
judgment after having originally accepted the payment of the principal sum without interest.’
8. In April 2002 Greencore sought annulment of that alleged decision pursuant to Article 230 EC.  The Commission raised an objection of inadmissibility on the basis that the letter did not in any way change Greencore’s legal position but simply informed Greencore that the Commission considered that it had failed to attack the Commission’s decision of 4 January 2000 and was therefore time-barred;  since the letter was a simple information letter it was not liable to annulment under Article 230.  Greencore submitted in response that there had never been a prior decision on interest and that therefore the letter could not be purely informative.
9. In its order of 7 January 2003 the Court of First Instance dismissed the Commission’s objection of inadmissibility, stating:
‘Far from merely imparting information, the Commission’s letter of 11 February 2002, as is apparent from the very terms in which it is couched …, expresses clearly the refusal of that institution to pay the default interest requested by the applicant in favour of its subsidiary.  The reason given for that refusal is that the applicant forfeited its right to request the payment of interest since it did not raise the matter when the principal sum paid by way of fine was refunded on 4 January 2000.
The Court of Justice held in Case 44/81 Germany and Others v Commission
[1982] ECR 1855, at paragraph 6, that where an institution, by refusing to make a payment, disputes a prior commitment or denies its existence, it commits an act which in view of its legal effects may give rise to an action for annulment under Article 230 EC.  If the action leads to the annulment of the refusal to make the payment, the applicant’s right is established and it will be for the institution concerned, pursuant to Article 233 EC, to ensure that the payment which has been unlawfully refused is made.  Moreover, if an institution fails to reply to a request for payment, the same result may be obtained by means of Article 232 EC.
That case-law is also applicable in a case such as the present one, where the institution, by refusing to make a payment, denies the existence of an obligation owed by it under a provision of the Treaty.’ (8)
10. The Commission has appealed against the order of the Court of First Instance.  It submits that that court committed an error in law in rejecting its objection of inadmissibility and in particular that it infringed Article 230 EC by declaring admissible an action for annulment against an act that is not challengeable since it does not bring about a distinct change in the applicant’s legal position.
11. Greencore submits, first, that the Court of First Instance found as a fact that the letter ‘expresses clearly the refusal to pay the default interest’ and that there had been no prior refusal and, second, that that court was correct in ruling that the letter was a challengeable act because it withheld from Greencore the benefits of Article 233 EC as interpreted in Corus .
Assessment
12. The essential issue in the present appeal is whether the Court of First Instance correctly analysed the Commission’s letter as a challengeable act.
13. I do not accept Greencore’s submission that that court’s classification of the letter as such is a finding of fact and consequently immune from review on appeal.  Although in general the Court of Justice cannot re-assess facts found by the Court of First Instance, it is settled case-law that the Court of Justice has jurisdiction to review the legal classification of those facts by the Court of First Instance and the legal conclusions it has drawn from them. (9)  In the present case the legal classification by the Court of First Instance of the letter and the legal conclusion it drew from that classification were central to its ruling.
14. The Court of First Instance based its classification of the letter on its perception that that letter ‘expresses clearly the refusal of that institution to pay the default interest requested’.  The only part of the letter which could be used to support such a conclusion is the sentence which states:
‘The payment of the principal sum without interest on 4 January 2000 meant that the Commission refused to pay any interest.’
15. Even accepting that that statement does contain a refusal to pay the interest, its legal status and consequences depend upon the correct classification of the Commission’s payment of the principal without interest on 4 January 2000.  If the letter is merely a confirmation of the refusal to pay interest which had already taken the form of a time-barred actionable act, it will manifestly not itself be actionable.  The Court of First Instance, however, failed to address that issue at all.
16. In my view, the Court of First Instance should have done so.  That court found as a fact that, although the Commission transferred the principal sum to Greencore’s account, ‘it did not grant the request concerning interest’. (10)  Since the Commission did not grant the request, it must in my view be regarded as having refused it.  The Court of First Instance should therefore have found that the Commission’s payment of principal without interest was correctly to be analysed as an implied refusal to pay the interest requested.  Although in general mere silence on the part of an institution cannot constitute an implied refusal, (11) the position is clearly different where a request is met with an action which does not accede to it. (12)  An implied decision may in principle be challenged under Article 230 EC. (13)
17. Article 230 confers a right to seek judicial review of an institution’s conduct.  If the conduct does not amount to a decision actionable under that article, Article 232 EC provides that the institution may be called upon to act.  Each article imposes a strict time-limit on the exercise of the right it confers.  It is clear that that system of remedies would be undermined if a party who considered himself prejudiced by an institution’s conduct and yet exercised neither right within the relevant time-limit were none the less able to challenge the conduct thereafter.
18. If as I suggest the Commission’s refusal to pay interest is correctly analysed as a decision not to do so, the letter cannot in my view be a decision open to challenge under Article 230 EC, since it merely confirmed that earlier decision.  It is settled case-law that an action for annulment brought against a decision which merely confirms an earlier decision which has not been challenged in good time is inadmissible and that a decision is a mere confirmation of an earlier decision where it contains no new factors as compared with the earlier measure and is not preceded by any re-examination of the situation of the addressee of the earlier measure.  (14)  In particular, a fax in which the Commission refuses to reconsider an earlier decision does not amount to a new decision. (15)  In contrast a meeting between the addressee of the earlier measure and the institution which has refused payment of a sum allegedly due at which that refusal to pay is discussed should be regarded as a re-examination within the meaning of that case-law. (16)
19.  In Germany v Commission, the only authority relied on by the Court of First Instance on the point at issue, Germany sought payment of aid of which the Commission had previously approved the grant.  In July 1980 the Commission informed Germany that it was unable to grant the request since it was out of time.  In August 1980 Germany replied, challenging the Commission’s position and asking it to explain its view.  That request was formally accepted by the Commission and a meeting took place at which the Commission agreed to reconsider Germany’s view.  In October and December 1980 Germany wrote again to the Commission with a view to obtaining payment;  in December 1980 the Commission confirmed the refusal.  The fact that the Commission agreed to, and did, reconsider the matter in that way after its initial refusal to pay the sum allegedly due is to my mind sufficient to demonstrate that Germany v Commission
is clearly distinguishable from the present case. (17)
20. The Court of First Instance in Corus
established the principle of a right to interest on fines which had been paid and subsequently annulled or reduced.  Greencore correctly submits that that interpretation by the Community judicature of a rule of Community law ‘clarifies and defines the meaning and scope of that rule as it ought to have been understood and applied from its coming into force’. (18)  I do not however see how that proposition is relevant to the admissibility of Greencore’s action, or how it can absolve Greencore from the requirement in Article 230 EC that it bring proceedings within two months of the Commission’s implied decision refusing payment of the interest when first requested.  It is plain that a later Court decision does not reopen the period for taking proceedings where that period has already expired.
21. It may be noted that, if the Court were to dismiss the appeal in the present case, the effect would be that the time-limit prescribed in Article 230 EC could not be raised by the Commission against any undertaking which had at any time in the past been the subject of a fine imposed by the Commission and subsequently reduced or annulled by the Community judicature.  It is settled case-law that that time-limit is based in particular on the consideration that the periods within which legal proceedings must be brought are intended to ensure legal certainty by preventing Community measures which produce legal effects from being called in question indefinitely. (19)  That consideration would manifestly not be served by the result described above.
22. Finally, I would add that if, when it received payment of the principal from the Commission, Greencore considered that the non-payment of interest was not an act challengeable under Article 230 EC, the proper course would have been for it to call on the Commission to act in accordance with the second paragraph of Article 232 EC.  The fact that, according to its application to the Court of First Instance, Greencore ‘chose not to make use of that remedy’ cannot have any bearing on the admissibility of the action which it subsequently chose to bring under Article 230 EC.
23. In the light of the foregoing, the contested order of the Court of First Instance should be set aside and, having regard to the first paragraph of Article 61 of the Statute of the Court of Justice, the application for annulment of the alleged decision must be declared to be inadmissible.
Conclusion
24. I accordingly conclude that the Court should:
(1) set aside the order of the Court of First Instance of 7 January 2003 in Case T-135/02 Greencore Group v Commission ;
(2) declare the application by Greencore for annulment of the Commission’s alleged decision of 11 February 2002 to be inadmissible;
(3) order Greencore to pay the costs of the proceedings before the Court of Justice and the Court of First Instance.
(1) .
(2)
–	Order of 7 January 2003 in Case T-135/02 Greencore Group v Commission .
(3)
–	Commission Decision 97/624/EC of 14 May 1997 relating to a proceeding pursuant to Article 86 of the EC Treaty, OJ 1997 L 258, p. 1.
(4)
–	Case T-228/97 Irish Sugar
v Commission [1999] ECR II-2969.
(5)
–	Case T-171/99 Corus UK v Commission [2001] ECR II-2967.
(6)
–	To be applied in the same way as Article 176 of the EC Treaty, now Article 233 EC (see paragraph 51 of the judgment), which requires an institution whose act has been declared void by the Community judicature to take the necessary measures to comply with the judgment.
(7)
–	Paragraphs 52 and 53 of the judgment.
(8)
– Paragraphs 14 to 16.
(9)
–	Case C-136/92 P Commission
v Brazzelli Lualdi and Others
[1994] ECR I-1981, paragraphs 48 and 49 of the judgment.
(10)
–	Paragraph 5 of the order.
(11)
–	Joined Cases T-190/95 and T-45/96 Sodima v Commission [1999] ECR II-3617, paragraph 32 of the judgment.
(12)
–	See also Case T-271/94 Branco
v Commission [1996] ECR II-749, paragraph 48 of the judgment.
(13)
–	See for an example Case C-359/98 P Ca’ Pasta
v Commission [2000] ECR I-3977, paragraph 32 of the judgment.
(14)
–	Joined Cases T-83/99, T-84/99 and T-85/99 Ripa di Meana
v Commission [2000] ECR II-3493, paragraph 33 of the judgment and case-law there cited.
(15)
–	Joined Cases T-121/96 and T-151/96 Mutual Aid Administration Services
v Commission [1997] ECR II-1355, paragraph 48 of the judgment.
(16)
–	Case T-331/94 IPK-München v Commission [1997] ECR II-1665, paragraphs 25 and 26 of the judgment.
(17)
–	See also Case C-304/89 Oliveira
v Commission
[1991] ECR I-2283 where Advocate General Darmon described Germany
v Commission as refusing to recognise that the adoption of a position which a Community institution undertakes to re-examine constitutes a decision:  paragraph 12 of the Opinion.
(18)
–	Paragraph 26 of Greencore’s response.
(19)
–	See for a recent example Case C-241/01 National Farmers’ Union [2002] ECR I-9079, paragraph 34 of the judgment, and the cases there cited.