2

The background to the dispute is set out by the General Court in paragraphs 2 to 28 of the judgment under appeal as follows: ‘2 By the [Methacrylates decision], the Commission … imposed a fine of EUR 219131250 on Arkema SA and its subsidiaries Altuglas International SA and Altumax Europe SAS (taken together, ‘Arkema’) jointly and severally for participating in a cartel (‘the original fine’). 3. The [respondents], Total SA and Elf Aquitaine SA, which, during the period of the infringement found in the Methacrylates decision, were the parent companies of Arkema, were found liable jointly and severally for payment of the original fine to the extent of EUR 181350000 and EUR 140400000 respectively. 4. On 7 September 2006 Arkema paid the original fine in full and subsequently brought an action against the Methacrylates decision (‘Methacrylates judicial proceedings’), as did the [respondents], simultaneously and independently. Methacrylates judicial proceedings before the General Court 5. On 4 and 10 August 2006 respectively the [respondents] and Arkema brought an action for the annulment of the Methacrylates decision. 6. In Case T‑206/06 the [respondents] claimed primarily that the Methacrylates decision should be annulled. 7. Alternatively they also claimed that the original fine imposed jointly and severally on Arkema and themselves should be reduced. 8 On 24 July 2008 the Commission wrote a letter to Arkema asking it to confirm that its payment of 7 September 2006 had been made “on behalf of all the debtors jointly and severally liable”, adding that, first, “without such confirmation and if the [Methacrylates decision was] annulled in relation to the undertaking on whose behalf the payment was made”, it, the Commission, would “repay the sum of EUR 219131250 with interest” and, secondly, that “if all or part of the fine [was] upheld by the Court of Justice in relation to any of the other joint and several debtors” it “[would] demand from that debtor any sum remaining due plus default interest at the rate of 6.09%”. 9. By letter of 25 September 2008 Arkema informed the Commission that it had paid the sum of EUR 219131250“in its capacity as joint and several debtor and that, since that payment, the Commission [had] received full satisfaction as against Arkema and as against all the other joint and several debtors”. To that extent, Arkema “regretted that it [was] unable to authorise the Commission to retain any sum whatever should its action before the Community court [be] crowned with success”. 10 On 24 November 2008 the Commission wrote to the [respondents] to inform them of Arkema’s letter of 25 September 2008 and of the fact that Arkema had refused to complete the common payment declaration submitted by the Commission. 11 The [respondents’] action was dismissed by judgment of 7 June 2011, Total and Elf Aquitaine v Commission (T‑206/06, … EU:T:2011:250). 12. On the other hand, the action brought separately by Arkema against the Methacrylates decision was partly upheld by the judgment of 7 June 2011, Arkema France and Others v Commission (T‑217/06, … EU:T:2011:251), in so far as the fine imposed on Arkema was reduced to EUR 113343750. 13. In the [judgment of 7 June 2011, Arkema France and Others v Commission (T‑217/06, EU:T:2011:251)], the Court found that, in the exercise of its unlimited jurisdiction, the increase in the fine applied to Arkema as a deterrent should be reduced in order to take account of the fact that, on the day on which the fine was imposed, Arkema was no longer controlled by the [respondents] (judgment [of 7 June 2011, Arkema France and Others v Commission, T‑217/06, EU:T:2011:251], paragraphs 338 and 339). 14. No appeal was lodged against the judgment [of 7 June 2011, Arkema France and Others v Commission (T‑217/06, EU:T:2011:251)], so that it has acquired the binding authority of a judgment which has become final. 15. The Commission repaid Arkema, with value date of 5 July 2011, a total of EUR 119247033.72 (principal amount of EUR 105787500 plus interest of EUR 13459533.72). The [contested] letters Letter of 24 June 2011 16. In the letter of 24 June 2011 the Commission informed the [respondents] that, “in compliance with the judgment [of 7 June 2011, Arkema France and Others v Commission (T‑217/06, EU:T:2011:251)], [it] would repay Arkema the amount of the reduction in the fine decided upon by the Court”. 17. In the same letter of 24 June 2011, the Commission also asked the [respondents] “at the same time, should an appeal be lodged before the Court of Justice against the judgment [of 7 June 2011, Total and Elf Aquitaine v Commission (T‑206/06, EU:T:2011:250)], for payment of the amount outstanding, together with default interest at the rate of 6.09% from 8 September 2006”, that is to say, EUR 68006250, for the payment of which Total was held “jointly and severally” liable as to EUR 27056250 plus default interest, that is to say, a total of EUR 88135466.52. 18 By letter of 29 June 2011 to the Commission, the [respondents] contended, in substance, that the Commission had “received full satisfaction” since 7 September 2006 and they put various questions to the Commission for clarification of several points in the letter of 24 June 2011. Letter of 8 July 2011 19 By the letter of 8 July 2011, the Commission replied in particular, that, “contrary to the [respondents’] understanding, [the Commission] would certainly not waive recovery of the amounts due if [the respondents] refrained from lodging an appeal before the Court of Justice”, adding that “the [respondents’] liability was not extinguished by the retention/deduction of the sums mentioned by the judgment [of 7 June 2011, Arkema France and Others v Commission (T‑217/06, EU:T:2011:251)] and paid by Arkema”. 20 In the same letter the Commission admitted that it had been mistaken as to the amount which it intended to claim and added that the amount due from Elf Aquitaine, pursuant to the Methacrylates decision and also the judgment of [7 June 2011, Total and Elf Aquitaine v Commission (T‑206/06, EU:T:2011:250), and of 7 June 2011, Arkema France and Others v Commission (T‑217/06, EU:T:2011:251)], was EUR 137099614.58, including default interest of EUR 31312114.58 …, for which Total was jointly and severally liable as to EUR 84028796.03. 21 In the letter of 8 July 2011 the Commission added that, if the [respondents] were to appeal against the judgment [of 7 June 2011, Total and Elf Aquitaine v Commission (T‑206/06, EU:T:2011:250)], it would be open to them to provide a bank guarantee rather than to pay the fine. 22. On 18 July 2011 the [respondents] paid the Commission the sum demanded in the letter of 8 July 2011, that is to say, EUR 137099614.58. Methacrylates judicial proceedings before the Court of Justice on appeal 23. On 10 August 2011 the [respondents] lodged an appeal against the judgment [of 7 June 2011, Total and Elf Aquitaine v Commission (T‑206/06, EU:T:2011:250)]. … 25. The appeal was dismissed by order of 7 February 2012, Total and Elf Aquitaine v Commission (C‑421/11 P, [not published] … EU:C:2012:60), the Court of Justice having dismissed all the [respondents’] claims. … 28 On the alternative claims seeking exemption from the payment of default interest, the Court of Justice found as follows: “89 This claim must be dismissed as manifestly inadmissible in that it is directed, not … against the judgment [of 7 June 2011, Total and Elf Aquitaine v Commission (T‑206/06, EU:T:2011:250)], but against the Commission’s letter [of 8 July 2011] which is, furthermore, the subject of an action of the [respondents] before the General Court, lodged at the registry of that Court under number T‑470/11.”’