OPINION OF ADVOCATE GENERAL

BOT

delivered on 16 May 2019 ( )

Case C‑479/17 P

Guardian Europe Sàrl

v

European Union, represented by the Court of Justice of the European Union,

European Union, represented by the European Commission

(Appeal — Action for damages — Failure to adjudicate within a reasonable time — Infringement of the principle of equal treatment — Conditions of admissibility — Right to bring an action — Concept of ‘single undertaking’ — Compensation for the damage alleged to have been sustained by the applicant — Non-contractual liability of the European Union for a decision delivered by the General Court of the European Union)





I. Introduction

1. By their respective appeals, the European Union ( ) and Guardian Europe Sàrl ( ) seek to have set aside in part the judgment of the General Court of the European Union of 7 June 2017, Guardian Europe v European Union ( ), whereby the General Court ordered the European Union to pay compensation of EUR 654 523.43 to Guardian Europe for the pecuniary damage sustained by that company as a result of the failure to adjudicate within a reasonable time in the case that gave rise to the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission, ( ) and dismissed the action for the remainder.

2. Following its partial waiver of 7 January 2019, in the case of European Union v Guardian Europe (C‑447/17 P), the European Union, represented by the Court of Justice of the European Union, no longer maintains the second ground of appeal, claiming that the judgment under appeal, in paragraph 160, misinterpreted the concept of ‘causal link’, by considering, in paragraph 161 of that judgment, that there is a sufficiently direct link between the infringement of the obligation to adjudicate within a reasonable time in the case that gave rise to the judgment of the General Court of 27 September 2012 and the loss sustained by Guardian Europe as a result of paying additional bank guarantee during the period by which that reasonable time was exceeded.

3. That second ground of appeal, similar to the ground of appeal raised by the European Union in European Union v Gascogne Sack Deutschland and Gascogne, ( )European Union v Kendrion, ( ) and European Union v ASPLA and Armando Álvarez, ( ) was upheld by the Court by judgments of 13 December 2018.

4. In those circumstances, my examination of the appeals, in that they raise new points of law, will be limited to the appeal brought by Guardian Europe in Guardian Europe v European Union (C‑479/17 P), and will focus on the first and fourth grounds of appeal put forward by Guardian Europe, relating to the concept of ‘single undertaking’, ( ) and on the sixth ground of appeal, concerning the liability of the European Union for a decision delivered by the General Court. However, I shall briefly explain why in my view the pleas in defence submitted in response to the fourth ground of appeal should be rejected, since they also affect the examination of the sixth ground of appeal.

5. Thus, I shall state the grounds on which I consider that only the first and fourth grounds of appeal are well founded, save insofar as they take issue with the reasoning of the judgment under appeal relating to the representation of Guardian Industries Corp. by Guardian Europe and that, in consequence, the judgment under appeal must be set aside in part.

II. The facts giving rise to the dispute

6. By application lodged at the Registry of the General Court on 12 February 2008, Guardian Industries and Guardian Europe brought an action against Commission Decision C(2007) 5791 final of 28 November 2007 relating to a proceeding under Article [101 TFEU] and Article 53 of the EEA Agreement (Case COMP/39165 — Flat glass). ( ) In their application, they claimed, in essence, that that decision should be annulled in part insofar as it concerned them and that the amount of the fine which had been imposed on them by that decision should be reduced.

7. The General Court dismissed that action by the judgment of the General Court of 27 September 2012 and Guardian Industries and Guardian Europe lodged an appeal against that decision, by application lodged at the Court Registry on 10 December 2012.

8. By judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, ( ) the Court essentially, first, set aside the judgment of the General Court of 27 September 2012 insofar as that judgment had rejected the plea in law alleging infringement of the principle of non-discrimination as regards the calculation of the amount of the fine imposed jointly and severally on Guardian Industries and Guardian Europe and had ordered them to pay the costs. Second, the Court annulled Article 2 of Decision C(2007) 5791 insofar as it set the amount of the fine imposed jointly and severally on Guardian Industries and Guardian Europe at EUR 148 000 000. Third, the Court set the amount of the fine imposed jointly and severally on Guardian Industries and Guardian Europe by reason of the infringement established in Article 1 of Decision C(2007) 5791 at EUR 103 600 000. Fourth, the Court dismissed the appeal as to the remainder.

III. The procedure before the General Court and the judgment under appeal

9. By application lodged at the Registry of the General Court on 19 November 2015, Guardian Europe brought an action on the basis of Article 268 and the second paragraph of Article 340 TFEU against the European Union, represented by the Commission and by the Court of Justice of the European Union, seeking compensation for the damage which it claimed to have sustained as a result of, first, the excessive length of the proceedings before the General Court in the case that gave rise to the judgment of the General Court of 27 September 2012 and, second, the infringement of the principle of equal treatment committed by the Commission in Decision C(2007) 5791 and by the General Court in that judgment.

10. By the judgment under appeal, the General Court:

‘1. Order[ed] the European Union, represented by the Court of Justice of the European Union, to pay compensation of EUR 654 523.43 to [Guardian Europe] for the material damage sustained by that company because of the infringement of the obligation to adjudicate within a reasonable time in the case giving rise to the judgment [of the General Court of 27 September 2012]. That compensation [was] to be adjusted by applying compensatory interest, starting from 27 July 2010 and continuing up to the date of delivery of the present judgment, at the annual rate of inflation determined, for the period in question, by Eurostat (the statistical office of the European Union) in the Member State where that company [was] established;

2. The compensation referred to in point 1 [was to] be increased by default interest, starting from the date of delivery of the present judgment until full payment, at the rate set by the European Central Bank (ECB) for its main refinancing operations, increased by two percentage points;

3. Dismisse[d] the action as to the remainder;

4) Order[ed] Guardian Europe to [pay] the costs incurred by the European Union, represented by the [Commission];

5) Order[ed] Guardian Europe, on the one hand, and the European Union, represented by the Court of Justice of the European Union, on the other, to bear their own costs.’

IV. Forms of order sought

11. By its appeal in Guardian Europe v European Union (C‑479/17 P), Guardian Europe claims that the Court should:

– set aside the judgment under appeal insofar as point 3 of the operative part rejected part of Guardian Europe’s claim for damages based on Article 268 and the second paragraph of Article 340 TFEU;

– order the European Union to compensate Guardian Europe for the damage caused as a result of the General Court’s failure to rule within a reasonable time by paying it the following amounts, together with, first, compensatory interest starting from 27 July 2010 up to the date of the judgment delivered in the present appeal, at the annual rate of inflation determined, for the period in question, by Eurostat in the country where Guardian Europe is established and, second, default interest starting from the date of the judgment delivered in the present appeal, at the rate set by the ECB for its main refinancing operations, increased by two percentage points:

– EUR 1 388 000 for opportunity costs or loss of profit;

– EUR 143 675.78 for bank guarantee costs; and

– a determined amount in the form of an appropriate percentage of the fine imposed on Guardian Europe in Decision C(2007) 5791 for non-pecuniary loss;

– order the European Union to compensate Guardian Europe for damage caused because of the Commission’s and the General Court’s infringement of the principle of equal treatment, by paying to it the following amounts together with, first, compensatory interest starting from 19 November 2010 up to the date of the judgment delivered in the present appeal at the annual rate of inflation determined, for the period in question, by Eurostat in the Member State where Guardian Europe is established and, second, default interest from the date of the judgment delivered in the present appeal, at the rate set by the ECB for its main refinancing operations, plus two percentage points:

– EUR 7 712 000 for opportunity costs or loss of profit; and

– a determined amount in the form of an appropriate percentage of the fine imposed on Guardian Europe in Decision C(2007) 5791 for non-pecuniary loss;

– in the alternative, refer the case back to the General Court for a determination of the foregoing claims, and

– order the Commission and the Court of Justice of the European Union to pay the costs.

12. The European Union, represented by the Court of Justice of the European Union, contends that the Court should:

– dismiss the appeal; and

– order Guardian Europe to pay the costs.

13. The European Union, represented by Commission, contends that the Court should:

– dismiss the appeal insofar as it is directed against the Commission; and

– order Guardian Europe to bear its own costs and to pay those incurred by the Commission.

14. The European Union, represented by the Court of Justice of the European Union, has lodged a cross-appeal and claims that the Court should:

– set aside the decision rejecting the plea of inadmissibility of the claim for loss of profit;

– declare that Guardian Europe’s claim for loss of profit is inadmissible, and

– order Guardian Europe to pay the costs.

15. Guardian Europe contends that the Court should:

– dismiss the cross-appeal; and

– order the European Union to pay the costs.

V. The first, fourth and sixth grounds of the main appeal and the single ground of the cross-appeal

A. Preliminary observations

16. It should be stated, first, that, because of their subject matter, namely the concept of ‘single undertaking’, the first and fourth grounds of appeal should, at the outset, be examined together, since they concern Guardian Europe’s right to act both on behalf of Guardian Industries and on account of the damage on which Guardian Europe relies. ( )

17. It should be made clear, second, that the analysis of the question raised by the sixth ground of appeal in the main appeal, relating to the conditions on which the European Union incurs liability ( ) for a decision delivered by the General Court, depends on the rejection of the grounds of the judgment under appeal relating to other pleas of inadmissibility.

18. In fact, the Commission put forward an argument alleging that the Court was required to raise of its own motion a plea alleging that Guardian Europe’s claim for damages based on breach of the principle of equal treatment in Decision C(2007) 5791 ( ) was time-barred. The Court of Justice of the European Union, by an admissible cross-appeal, ( ) maintained that the General Court had erred in the legal classification of the facts before it, in paragraph 64 of the judgment under appeal, and had thus wrongly rejected, in paragraph 65 of that judgment, the plea of inadmissibility alleging that the compensation for the loss of profit alleged would nullify the legal effects of a decision that had become final. ( )

19. Since the subject matter of those grounds of appeal does not justify presenting detailed observations in this Opinion, I shall set out, briefly, the grounds on which the judgment under appeal, in that it rejected those pleas of inadmissibility, must not be set aside by the Court.

20. As regards the Commission’s argument that Guardian Europe’s claim is time-barred, it should be observed that the Commission has not lodged a cross-appeal against the judgment under appeal rejecting that plea of inadmissibility which it had raised. That, to my mind, is sufficient reason not to respond to it, in the light of Articles 174, 176 and 178 of the Court’s Rules of Procedure. Furthermore, it should be borne in mind that, according to settled case-law, the Court does not raise of its own motion a plea alleging that an action is time-barred, since it is not a matter of public policy. ( )

21. As regards the ground of appeal alleging that compensation for the loss of profit would nullify the legal effects of a decision that has become final, the Court of Justice of the European Union maintains that Guardian Europe’s claim would have the same effect and the same object as an action for annulment that Guardian Europe ought to have brought in order to challenge the amount of the reimbursement of the part of the fine which it had wrongly paid, together with interest, in order to comply with the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission. ( ) The Court of Justice maintains, in effect, that that claim seeks, in reality, to obtain compensation for the loss of enjoyment of that sum at a higher rate than that used by the Commission.

22. It is common ground that Guardian Europe’s claim seeks to obtain compensation for the loss of profit associated with the difference between, on the one hand, the interest repaid by the Commission on the part of the fine repaid to it and, on the other hand, the income which it might have earned if, instead of paying the Commission the sum which the Court ultimately held not to be due, Guardian Europe had invested it in its business. ( )

23. In my view, because of its object, that claim, as the General Court correctly observed, is different from the claim seeking compensation for the damage caused by the period of time during which the sum repaid was not available, ( ) which is already satisfied by the payment of default interest.

24. In fact, such a distinction must be drawn, since, first, the Court has already held that 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. ( )

25. Second, the second paragraph of Article 266 TFEU provides that the obligation of the institution whose act has been declared void to take the necessary measures to comply with the judgment itself, which include payment of default interest, is not to affect any obligation which may result from the application of Article 340 TFEU.

26. The second paragraph of Article 266 TFEU thus reflects the principle that default interest is not intended to make good all the damage that may have been sustained as a result of having been deprived of the enjoyment of a sum paid but not due.

27. In those circumstances, I consider that the action for damages based on Article 340 TFEU brought by Guardian Europe is admissible and that the cross-appeal must therefore be dismissed.

B. The first and fourth grounds of appeal in the main appeal brought by Guardian Europe

1. Arguments of the parties

(a) The first ground of appeal

28. By its first ground of appeal, Guardian Europe maintains that the General Court made an error of law in interpreting the concept of ‘single undertaking’ in EU law and in concluding, in paragraphs 153 and 154 of the judgment under appeal, that the applicant had not suffered any loss of profit as a result of the General Court’s failure to adjudicate within a reasonable time.

29. Specifically, Guardian Europe criticises the General Court’s findings, in paragraphs 103 and 153 of the judgment under appeal, that, by not personally incurring the burden linked with payment of the fine, Guardian Europe had not sustained actual and certain damage, between 12 February 2010 and 27 September 2012, consisting in the difference between, on the one hand, the interest repaid by the Commission on the part of the fine ultimately held not to be due by the Court in the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, ( ) and, on the other hand, the income which it might have earned if, instead of paying the sum at issue to the Commission, it had invested that sum in its business.

30. Guardian Europe claims, first of all, that, in the context of the administrative procedure that led to Decision C(2007) 5791, the Guardian group had been treated as a ‘single undertaking’ for the purposes of EU law. Thus, the fine imposed on Guardian was calculated on the basis of the value of Guardian’s sales as an entire ‘undertaking’ and not on the value of the sales of Guardian Industries or Guardian Europe, the latter’s sales not being relevant for the period under consideration.

31. Guardian Europe infers that, when assessing the consequences of the infringement of Article 47 of the Charter of Fundamental Rights of the European Union in the earlier action for annulment, the General Court should also have regarded Guardian as a ‘single undertaking’ for the purposes of EU law in the action to establish non-contractual liability.

32. Guardian Europe next maintains, in the first place, that that concept of ‘single undertaking’ is widely recognised in EU law, applicable, in particular, in the fields of data protection, public procurement and taxation.

33. In the second place, after stating that it held all the shares of the operating subsidiaries concerned, Guardian Europe submits that the loss sustained by one company in an economic group necessarily has an impact on the profits of the entire group and on the investment decisions that can be taken within the group. In the case of the Guardian group, Guardian Europe was the main addressee of Decision C(2007) 5791, against which it brought an action jointly with its parent company, Guardian Industries. As Guardian Europe had felt the effects of the diminished investment resources in Europe as a result of the fine imposed by the Commission, it claimed damages on its own behalf and on behalf of the group.

34. Guardian Europe asks, last, that — should the judgment under appeal be set aside — the Court itself decide on the amount of compensation claimed.

35. In its response, the Court of Justice of the European Union contends that the General Court was correct to find, in paragraphs 153 and 154 of the judgment under appeal, that Guardian Europe had not suffered any actual and certain damage as a result of a loss of profit.

36. The Court of Justice of the European Union claims, first of all, that the concept of ‘single undertaking’ applied in competition law for the purposes of determining the amount of a fine is not applicable in a claim for damages based on the second paragraph of Article 340 TFEU.

37. The Court of Justice of the European Union states, next, that a natural or legal person has the right to bring an action for damages against the European Union only where that person is able to assert in law either a particular interest of his or its own, or a right to compensation assigned by other persons. As the appellant has not established that it had any interest in bringing proceedings, the action for damages must fail. ( )

38. Last, the Court of Justice of the European Union observes that Guardian Europe is a separate legal person from each of its subsidiaries and also from its parent company, Guardian Industries. It infers that Guardian Europe could bring an action for compensation only for the damage it had actually sustained, as no rights to compensation had been assigned to it by the parent company or the seven subsidiaries.

39. In its reply, Guardian Europe claims that the case-law cited by the Court of Justice of the European Union in support of its arguments does not permit the assertion that the fact of belonging to the same economic group is not sufficient to show an interest in bringing proceedings in an action for damages on the basis of the second paragraph of Article 340 TFEU.

40. The appellant claims, in that regard, that it does not follow from the judgment of 4 October 1979, Ireks-Arkady v EEC, ( ) which concerned the assignment of a claim for damages following a group reorganisation, that proof of that assignment, which might have been informal or implicit, was required. Nor did the Court state in that judgment that such assignment was necessary in the context of an economic group.

41. Guardian Europe also disputes the Court of Justice of the European Union’s argument that the only person that sustained damage is the legal person that paid the fine imposed in Decision C(2007) 5791. In that regard, the appellant claims that it sustained damage, first, because it was the main addressee of that decision and, second, because the Guardian group was required to divert a significant part of its European resources to paying the fine, which affected its capacity to invest in order to sustain and develop its European business. ( )

42. In its rejoinder, the Court of Justice of the European Union again submits that the case-law which it cited confirms that only a person, whether a natural person or a legal person, with a personal interest in the claim has standing to bring an action for damages. While it is possible to assign the cause of its action, in which case the assignee may bring proceedings on its behalf, there are no other circumstances in which the Court has recognised that an individual is entitled to bring an action in respect of damage sustained by another individual. As Guardian Industries, Guardian Europe and its subsidiaries are all separate companies, none of them has the right to bring an action for damages on behalf of one of the other companies in respect of the damage sustained by that company, in the absence of the assignment of such a right.

43. The Court of Justice of the European Union further submits that, according to that case-law, the fact that a company belongs to an economic group does not automatically give a legal person a personal interest in acting in an action in which another legal person belonging to the same group has a personal interest.

44. As regards Guardian Europe’s argument that the Court of Justice of the European Union asserts, in paragraph 10 of its response, that the person who has sustained damage is the legal person who paid the fine imposed in Decision C(2007) 5791, that respondent points out that the General Court held, in paragraphs 103 and 153 of the judgment under appeal, that because Guardian Europe did not itself incur the burden linked to payment of the fine, it could not claim to have sustained actual and certain damage in the form of loss of profit. The Court of Justice of the European Union contends that Guardian Europe does not demonstrate that that finding of the General Court is incorrect in law.

(b) The fourth ground of appeal

45. By its fourth ground of appeal, Guardian Europe takes issue with the judgment under appeal for having failed to have regard, in paragraphs 99 to 107, to the concept of ‘single undertaking’ in EU law, by holding that the infringement of the principle of equal treatment in Decision C(2007) 5791 and in the judgment of the General Court of 27 September 2012 did not entail a loss of profit for Guardian Europe.

46. Guardian Europe has made clear that the arguments put forward in support of this ground of appeal are the same as those put forward in support of the first ground of appeal.

47. The appellant has observed that its action for damages followed the judgment in which the Court found that the Commission had erred in calculating the fines in Decision C(2007) 5791 and that the error had persisted as a result of the judgment of the General Court of 27 September 2012.

48. Guardian Europe maintains that, in paragraph 103 of the judgment under appeal, the General Court was wrong to decide that Guardian Europe ‘[had] not itself incur[red] the burden linked to the payment of the fine imposed by Decision C(2007) 5791’ and ‘[could not], therefore, claim that it [had] sustained actual and certain damage’. Since the breach of the principle of equal treatment by Decision C(2007) 5791 and by the judgment of the General Court of 27 September 2012 resulted in payment of a higher fine than the appellant ought to have paid, which prevented it from having access to the overpaid amounts earlier, Guardian Europe evaluates the damage sustained at EUR 7 712 000 and asks that the Court itself adjudicate on the amount of compensation payable to it, taking into consideration the amount awarded under the first ground of appeal.

49. In its response, the Court of Justice of the European Union claims that this ground of appeal must be rejected for the same reasons as the first ground of appeal.

50. In its response, the Commission contends, primarily, that Guardian Europe’s claim is inadmissible, for two reasons: one main reason and one subsidiary reason. ( )

51. In the alternative, the Commission requests, first of all, in the event that Guardian Europe’s claims should be declared admissible, confirmation of the Court’s rejection decision based on the fact that the applicant sustained no damage as a result of the provisional payment of the fine. The Commission claims that the appellant, Guardian Europe, had not been treated as a single undertaking within the meaning of EU law in Decision C(2007) 5791 for the purposes of the determination of the fine, since only entities with legal personality can be held personally liable for infringements. ( )

52. Next, if it should nonetheless be accepted that Guardian Europe can claim that it sustained damage, the Commission asks the Court to uphold the General Court’s decision in paragraph 107 of the judgment under appeal that the loss of profit claimed by Guardian Europe as a result of what it alleged to be a sufficiently serious infringement of the principle of equal treatment in Decision C(2007) 5791 was not established. The Commission maintains that, since Guardian Europe had not made any captive sales, the application of a method of calculating fines that included captive sales would not have altered the amount of its fine. That calculation method would in reality have resulted only in an increase in the fines imposed on the other addressees. The Commission’s error therefore enabled the appellant to obtain a reduction of its fine which it could not have received otherwise.

53. Last, if Guardian Europe’s ground of appeal were to be upheld, the Commission claims that the conditions that would enable the Court to assess the amount of the compensation payable to the appellant are not satisfied.

54. In the reply, Guardian Europe submits, in response to the Commission’s argument that Guardian Europe was not treated as a single undertaking within the meaning of EU law in Decision C(2007) 5791 for the purposes of determining the fine, that the identification of the legal person liable for the infringement is made before the fine is set. Thus, when the Commission sets the fine, it takes the turnover of the entire economic group into account. In this instance, it took the value of the Guardian group’s sales into account.

55. In response to the Commission’s argument concerning the reality of the damage, Guardian Europe maintains that the Commission incorrectly describes the outcome of the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, ( ) and the reasoning in that judgment. However, Guardian Europe cannot revisit arguments examined in the annulment action. It observes, more specifically, that the argument based on the calculation method was rejected by the Court in paragraphs 70 and 71 of that judgment.

56. In response to the Commission’s argument concerning the need for an assessment of the evidence which it adduced, Guardian Europe observes that the Commission cannot claim for the first time before the Court that the evidence adduced is insufficiently probative.

2. My assessment

(a) The partial inadmissibility of the fourth plea raised on my own initiative

57. Guardian Europe takes issue with the General Court for having misapplied, in paragraphs 99 to 107 of the judgment under appeal, the concept of ‘single undertaking’ in EU law, by holding that the breach of the principle of equal treatment in Decision C(2007) 5791 and in the judgment of the General Court of 27 September 2012 did not entail a loss of profit for Guardian Europe.

58. However, the claim for compensation for the damage alleged to have been sustained by Guardian Europe, including the loss of profit, because of the breach of that principle in that judgment, was rejected in paragraphs 122 to 125 of the judgment under appeal, on different grounds, which are challenged in the sixth ground of appeal.

59. Consequently, this ground of appeal is admissible only insofar as it relates to Decision C(2007) 5791.

(b) Substance

60. By the first ground of appeal and the partly admissible fourth ground of appeal, Guardian Europe, in essence, asks the Court to rule on its standing and its interest in bringing proceedings, which are linked in the context of the action for damages based on Article 340 TFEU brought by Guardian Europe. ( )

61. It is common ground that, following the fine imposed jointly and several on Guardian Industries and Guardian Europe, various sums were paid directly to the Commission. In March 2008, the sums of EUR 20 000 000 and EUR 91 000 000 were paid by Guardian Industries and Guardian Europe, respectively. In July 2013, each of Guardian Europe’s seven operating subsidiaries paid part of the sum of EUR 48 263 003, corresponding to the remaining amount payable to the Commission, the subject of the bank guarantee provided by Guardian Europe, together with default interest.

62. It is therefore appropriate to distinguish the question of admissibility in that it relates to Guardian Europe’s claim either in respect of the part of the indemnity paid directly to the Commission by Guardian Europe itself and its subsidiaries, or in respect of the part paid by Guardian Industries. Although those questions result from the General Court’s substantive examination of the claim and although they are closely linked to it as regards the action to establish non-contractual liability, it seems to me to be appropriate, in that they concern Guardian Europe’s right to bring proceedings, to deal with them first, in order to set the limits of the dispute.

63. Guardian Europe relies on the fact that the action for damages which it brought is a continuation of proceedings for infringement of competition law employing the concept of ‘single undertaking’.

64. The difficulty lies in the fact that that concept serves to designate the perpetrator of the infringement, ( ) irrespective of the legal status of that entity and the way in which it is financed. ( )

65. The question therefore arises as to which legal person has the standing and interest in bringing proceedings on behalf of the legal entity which was penalised and has paid the fine seeking compensation for the damage caused by the failure to adjudicate within a reasonable time.

66. In the first place, it should be borne in mind that the Court has underlined the specific nature of that concept of ‘single undertaking’ in the context of competition law ( ) by expressly distinguishing it from the civil-law concept of ‘company’ or ‘legal person’.

67. Thus, the Court has held that ‘the concept of an undertaking has been defined by the European Union judicature and designates an economic unit even if in law that economic unit consists of several natural or legal persons’. ( )

68. In the second place, in the context of actions for damages based on the second paragraph of Article 340 TFEU, no exception has thus far been made to the principle that the applicant must establish an interest in bringing proceedings, namely that he has suffered injury. ( )

69. Admittedly, this Court and the General Court have adjudicated in circumstances different from those of the action at issue. As regards the judgments cited by Court of Justice of the European Union in support of its contention that Guardian Europe lacks an interest in bringing proceedings, it must be emphasised that they were delivered in cases in which the applicant was seeking compensation for damage which it had not directly sustained ( ) or in the absence of authority to bring proceedings ( ) or on behalf of a professional association ( ) or again following an assignment of rights. ( )

70. It follows, nonetheless, that, according to the Court’s settled case-law, first, a person has the right to bring legal proceedings under Article 340 TFEU only if he is able to assert in law either a particular interest of his own or a right to compensation which has been assigned to him by third parties.

71. Second, it must therefore be ascertained that the damage for which the applicant is seeking compensation was caused to him personally. ( )

72. Third, if the applicant must be able to assert a right to compensation which has been assigned to him by others, that requirement involves producing a specific legal act of assignment between the person having suffered the alleged damage and the applicant (which means that the former has transferred his right to the latter) or an express legal mandate to bring proceedings that has been explicitly extended by the person having suffered the damage. ( )

73. Those principles result directly from the conditions in which an action for compensation, which is an ordinary action, ( ) governed by general procedural rules, subject, in this instance, to the principles derived from company law, independent of the principles that determine liability in anti-trust law, may be exercised.

74. In the present case, the action for damages brought by Guardian Europe is based in part on the fine imposed on Guardian Industries. As the absence of an assignment of the latter’s right or of an explicit mandate to bring proceedings, produced by Guardian Europe, was established by the General Court, ( ) Guardian Europe’s claim is inadmissible in part.

75. As regards Guardian Europe’s claim in respect of the sums paid to the Commission by it and its subsidiaries, it should be borne in mind that those sums were paid in order to implement a fine imposed on Guardian Industries and Guardian Europe, which only they could dispute. Accordingly, only they could seek compensation for damage sustained owing to the failure to adjudicate within a reasonable time or the infringement of the principle of equal treatment.

76. In those circumstances, there can be no doubt that payment of the sums owed to the Commission by Guardian Europe constitutes a particular interest in the compensation sought, within the meaning of the Court’s case-law to which I have just referred.

77. That analysis does not seem to me to be capable of being called into question by the finding that Guardian Europe’s subsidiaries contributed to the payment of the fine by Guardian Europe indirectly or directly to the Commission.

78. In fact, the General Court stated, in paragraph 101 of the judgment under appeal, on the basis of the documentary evidence which it had requested, ( ) that that contribution by the subsidiaries in March 2008 was the result of financing agreements entered into with Guardian Europe, their parent company. In paragraph 102 of that judgment, the General Court observed that the sums had been paid directly to the Commission by Guardian Europe’s seven subsidiaries.

79. However, first, it is necessary not to confuse the debt and payment of the debt. Second, although the General Court observed that Guardian Europe maintained that ‘all the sums [had been] paid by entities belonging to the Guardian undertaking’ ( ) within the meaning of Decision C(2007) 5791, it did not draw the legal conclusions from its findings in respect of the agreements entered into between Guardian Europe and its subsidiaries. Furthermore, although Guardian Europe had relied on the concept of ‘single undertaking’, it had also claimed that it exercised full control over those subsidiaries. That circumstance renders any investigation of the contribution to the debt even less effective, since the impoverishment of the subsidiaries is a financial risk borne by the company on which they are wholly dependent. ( )

80. In other words, the recognition that the subsidiaries who directly paid a part of the fine to the Commission have a particular interest in bringing proceedings assumes that that penalty was imposed on them jointly and severally and, a fortiori, that they did not make that payment at the parent company’s request.

81. Nonetheless, in the context of the pending proceedings, the fact that the subsidiaries made a contribution to payment of part of the fine is not wholly irrelevant. I am of the view that it must be taken into consideration at the stage of the substantive examination of the claim for compensation for the damage relied on by Guardian Europe, since Guardian Europe must establish the reality of the damage and the extent of the consequences of the alleged failure to profit in relation to its subsidiaries’ business. In that regard, I consider that the weighted average cost of capital submitted by Guardian Europe for the General Court’s appraisal ( ) is not satisfactory by reference to those evidential requirements. In fact, owing to the nature of the damage alleged by Guardian Europe, although that calculation of the weighted average cost of capital constitutes a reference value for investors, it does not in my view serve to justify a failure to profit linked with the undertaking’s economic and financial prospects.

82. Having regard to all of the foregoing considerations, I conclude, first, that, in observing that the appellant did not personally incur the burden linked with payment of the fine, the General Court made an error of law that must lead to the judgment under appeal being set aside on that point.

83. Second, in the absence of sufficient evidence, the Court will have to refer that part of the case back to the General Court for an assessment of both the actual nature of the damage and the causal link between that damage and the alleged infringements. ( )

C. The sixth ground of appeal

1. Arguments of the parties

84. By its sixth ground of appeal, Guardian Europe maintains that the General Court made an error of law, in paragraphs 122 to 125 of the judgment under appeal, in response to its claim for compensation for the damage sustained as a result of an alleged sufficiently serious breach of the principle of equal treatment in the judgment of the General Court of 27 September 2012, by reference to settled case-law on the obligation to take captive sales into account. The General Court was wrong to consider that only a judgment delivered by a court adjudicating at last instance can incur the non-contractual liability of the European Union as a result of an infringement of EU law.

85. Guardian Europe claims, in the first place, that the Court’s case-law does not expressly exclude the possibility that a lower court’s decision could give rise to an action for damages for infringement of EU law. It relies, in that regard, on the judgment of 30 September 2003, Köbler, ( ) and maintains that the judgment of 6 October 2015, Târşia, ( ) cited by the Court of Justice of the European Union, ( ) cannot substantiate the opinion to the contrary which it expresses.

86. In the second place, in the alternative, Guardian Europe claims that, if only a decision delivered at last instance could render the European Union liable for an infringement of EU law, the fact that the General Court is a specialist court in EU law should justify special rules on liability.

87. In the third place, Guardian Europe submits that, as the Court cannot by definition infringe EU law in a judgment, paragraph 122 of the judgment under appeal would have the consequence that the Courts of the European Union would never be held liable for an infringement of EU law.

88. In addition, Guardian Europe takes issue with the General Court for having considered in paragraph 124 of the judgment under appeal that Guardian Europe had not alleged serious judicial failures, in particular of a procedural or administrative nature.

89. The appellant disputes that assertion, on the ground that it referred in its pleadings before the General Court not only to the errors made by that Court but also, as an example of failure, to the fact that the General Court had failed to examine the existing established case-law requiring that captive sales should be taken into account in the calculation of the fines of the other cartel participants, as otherwise an unfair advantage would be given to vertically-integrated producers.

90. Guardian Europe asks the Court, if it should set the judgment under appeal aside on those points, to rule that the liability of the European Union is incurred by the judgment of the General Court of 27 September 2012.

91. In its response, the Court of Justice of the European Union contends that the General Court was correct to consider, in paragraph 122 of the judgment under appeal, that the European Union cannot incur liability for the content of a judicial decision that has not been delivered by a Court of the European Union adjudicating at last instance and could therefore be subject to an appeal.

92. The Court of Justice of the European Union emphasises that it follows from the judgments of 30 September 2003, Köbler, ( ) and of 6 October 2015, Târşia, ( ) and also from the judgment of 15 March 2017, Aquino, ( ) that the non-contractual liability of a Member State can be incurred only by a decision delivered by a court adjudicating at last instance. Accordingly, no claim for non-contractual liability can lie against the institution of the Court of Justice of the European Union for a judgment not delivered at last instance, since a remedy was available in the form of an appeal.

93. The Court of Justice of the European Union also disputes the appellant’s assertion that its claim arose as a result of serious judicial failures. The infringement of which the appellant complains concerned the content of the judgment, which was corrected at the stage of the appeal to this Court.

2. My assessment

94. It should be made clear at the outset, first, that Guardian Europe’s claim for compensation is based on the grounds of the judgment of the General Court of 27 September 2012, set out in paragraphs 104 to 106 on the Commission’s breach of the principle of non-discrimination. That reasoning was criticised by Guardian Industries and Guardian Europe in their appeal of 10 December 2012 by a ground of appeal that was upheld by this Court in the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission. ( )

95. Second, it follows from the reasoning on which that judgment was based that the Court set the General Court’s decision aside on that point on the ground that the General Court had failed to have regard to settled principles of case-law. ( ) Consequently, the Court considered that there was no need to adjudicate on the complaint put forward by Guardian Europe alleging failure to state reasons. ( )

96. It is in that context that, by its sixth ground of appeal, Guardian Europe takes issue with the judgment under appeal for having held, in paragraphs 122 and 123, that the liability of the European Union could not be incurred as a result of the error made by the General Court, since it was rectified by the Court of Justice on appeal.

97. Thus, the Court is requested, in essence, to rule on the conditions governing the implementation of the principle that the European Union is to make good any damage caused by one of its institutions, provided for in Article 340 TFEU, in the exercise of judicial functions. Guardian Europe’s claim is unprecedented in that it relates not to the conditions in which those functions were exercised by one of the Courts of the European Union, but to their outcome, namely the content of a decision delivered by that Court. ( )

98. In fact, as regards the conditions in which the judicial activity is exercised, in particular where a reasonable time for adjudicating has been exceeded, the Court has held that an action for damages is ‘an effective remedy of general application for asserting … such a breach’. ( ) The rules on liability applied are based on objective liability resulting from the finding that the time taken to adjudicate is excessive in the light of the characteristics of a case. ( )

99. As regards the role of the courts, although the case of liability incurred because of an infringement of EU law by a court has been examined by the Court, it concerned only national courts. ( ) Thus, this appeal means that the Court must now define the conditions in which the liability of the European Union may be incurred when such an infringement is the result of a judgment of the General Court.

100. In paragraph 123 of the judgment under appeal, the General Court observed that the exercise of the remedy available to the applicant, namely the appeal, had enabled the error in the judgment of the General Court of 27 September 2012 to be rectified. As is apparent from paragraphs 122 and 124 of the judgment under appeal, the General Court applied a principle of liability based not on the assessment of the origin of the failure of the judicial act, but on the assessment of the proper functioning of the judicial system, the organisation of which is specifically designed to correct errors made in first-instance judgments.

101. To my mind, such a concept of the way in which the liability of the European Union may be incurred as a result of judicial activity, which entails ascertaining whether the remedies were exercised and whether they allowed effective judicial protection of the rights which individuals derive from EU law to be ensured, can be clearly inferred from the judgment of 28 July 2016, Tomášová. ( )

102. Specifically, in that judgment, the Court answers the question as to the conditions in which the liability of the Member State concerned may be sought because of an infringement of EU law as a result of a court ruling delivered by a court which is not a supreme court. ( )

103. The Court first of all recalled that the principle of State liability for loss or damage caused to individuals for breaches of EU law for which the State can be held responsible, applicable to any case in which there is a breach and irrespective of the public authority responsible for the breach, is also applicable, subject to certain conditions, where the breach at issue stems from a decision of a national court adjudicating at last instance. ( )

104. Next, the Court requested the referring court to establish whether the decisions at issue delivered by the Okresný súd Prešov (District Court, Prešov, Slovakia) had been delivered at last instance. ( )

105. Last, the Court ruled that ‘Member State liability for damage caused to individuals as a result of a breach of EU law by a decision of a national court may be incurred only where that decision is made by a court of that Member State adjudicating at last instance …’. ( )

106. Thus, in my view, the judgment of 28 July 2016, Tomášová, ( ) removes the uncertainty as to the scope of the judgments cited by the parties which concerned only decisions delivered by supreme courts, especially the judgment of 30 September 2003, Köbler, ( ) which stated that ‘the principle that Member States are obliged to make good damage caused to individuals by infringements of Community law for which they are responsible is also applicable where the alleged infringement stems from a decision of a court adjudicating at last instance where the rule of Community law infringed is intended to confer rights on individuals, the breach is sufficiently serious and there is a direct causal link between that breach and the loss or damage sustained by the injured parties. In order to determine whether the infringement is sufficiently serious when the infringement at issue stems from such a decision, the competent national court, taking into account the specific nature of the judicial function, must determine whether that infringement is manifest’. ( )

107. Although the scope of the judgment of 30 September 2003, Köbler, ( ) was clarified in the judgment of 13 June 2006, Traghetti del Mediterraneo, ( ) the wording of paragraph 36 of the latter judgment could still give rise to doubt, ( ) especially owing to the Court’s rewording of the question for a preliminary ruling that related to the liability of courts in respect of their judicial function, whether or not adjudicating at last instance. ( )

108. The principle of the prior exhaustion of remedies which the judgment of 28 July 2016, Tomášová, ( ) specifies, with the consequence that a Member State incurs liability only where it was for the court adjudicating at last instance to ensure the application of EU law and, where appropriate, to request a preliminary ruling from the Court of Justice of the European Union in the case of doubt, in application of Article 267 TFEU, is derived from the assertion of the ‘essential role played by the judiciary in the protection of the rights derived by individuals from rules of EU law and [from] the fact that a court adjudicating at last instance constitutes, by definition, the last instance before which those individuals can enforce the rights conferred on them by those rules’. ( )

109. That principle, based on the existence of remedies, is also adapted to the specific nature of the judicial activity and to the legitimate requirements of legal certainty, which serve to determine the limits within which liability may be incurred on account of the content of a judicial decision. ( )

110. Consequently, provided that the organisation of the remedies is designed to protect the rights which individuals derive from the rules of law, in particular those of the European Union, the exercise of the judicial remedy is the appropriate means of seeking compensation for the error made by a court of first instance. ( ) In other words, it is necessary to distinguish the removal of the error, which any party bringing proceedings may seek, from compensation for a breach of the rights derived from EU law that can no longer be ‘corrected’, ( ) owing to the failure to exercise remedies, which alone is capable of founding an action for damages. ( )

111. Must that principle be reserved solely for the liability incurred by the Member States where they infringe EU law? In other words, do the specialisation of the General Court and the structure of the EU legal order, defined in Article 19(1) TEU, according to which the General Court, together with the Court of Justice, is to ensure that in the interpretation and application of the Treaties the law is observed, justify an exception to that principle?

112. I do not think so. Although, in the judicial system established by the Treaties, which is intended to ensure consistency and uniformity in the interpretation of EU law, ( ) the General Court plays a part in the full application of EU law and in the judicial protection which individuals derive from EU law, ( ) the very existence of the ability to lodge an appeal before the Court of Justice to have the decisions of the General Court set aside where they infringe EU law is sufficient for that Court to be treated in the same way as any other court of a Member State that does not adjudicate at last instance. ( )

113. In fact, like the national courts, the General Court adjudicates ‘in the front line’, ( ) since its task entails addressing new points of EU law, which are submitted to it first, or adapting the solutions established by the Court of Justice to different situations.

114. The main difference resulting from the comparison with the national systems, however, is that the General Court does not have a mechanism equivalent to the preliminary ruling procedure when it is faced with unforeseen problems or with uncertainty as to the scope of the Court’s case-law. That element was decisive in the concept of the rules governing the liability of courts adjudicating at last instance, which are obliged to seek a preliminary ruling. ( ) The Court has even described that preliminary ruling procedure as the ‘keystone’ of the judicial system of the European Union. ( ) Thus, that specific procedure justifies, in part, the fact that the rules applicable to the liability of the Member States and those applicable to the European Union are not entirely aligned. ( )

115. That circumstance also makes it necessary to emphasise the difficulty in assessing an infringement of EU law by the General Court that occurred in spite of the existence of settled case-law on the matter. In fact, the failure to apply settled case-law may result from the finding of different factual circumstances or differences in assessing the facts or from the need to propose a development in that settled case-law, even though that does not emerge explicitly from the decision that has been set aside.

116. That freedom of assessment, which constitutes the very function of the courts ( ) and the dynamic of the case-law, is restricted by the obligation to state reasons, which is even more pressing where it is proposed to depart from previous case-law, irrespective of the degree of jurisdiction at which the court adjudicates. It constitutes a fundamental reason for not changing the conditions on which liability may be incurred because of the exercise of judicial functions by a court that does not adjudicate at last instance, even where the higher court will subsequently have set aside the decision on the ground of an error of law. ( )

117. To call that approach into question would amount to establishing an acquired right to consistent case-law, which would be contrary to the principle stated, in particular, by the European Court of Human Rights. ( )

118. Consequently, as in the case of many national rules governing liability for the judicial activity, ( ) there is no reason to depart from the logic derived from the existence of remedies, closely linked to compliance with the requirement to adjudicate within a reasonable time. In that regard, I consider that it is specifically the period within which the decision that was set aside was delivered and, where appropriate, the infringement of EU law corrected, and not the error of law, that constitutes the event giving rise to liability.

119. In those circumstances, and because of the subject matter of the appeal, I consider that the argument put forward by Guardian Europe — the consequence of which would be that the rules governing EU liability for the decisions of the General Court must depend on the determination of the conditions in which those rules would or would not be applicable to the Court of Justice, which has jurisdiction to review the decisions of the General Court where the outcome of the remedies was not favourable to the party that exercised them — is ineffective. ( )

120. As regards Guardian Europe’s last complaint, relating to paragraph 124 of the judgment under appeal, I consider that the General Court was correct to hold that it is appropriate to reserve the cases in which it is established that the protection of the rights which individuals derive from the rules of EU law was ultimately provided in conditions that caused it damage. That may be the position, as I have already observed, where the length of the proceedings was excessive ( ) or where any other failure of the judicial organisation hindered, for example, the exercise of remedies. The failure in question must necessarily be an objective one, since, in the case of a decision amenable to appeal, serious failures in the function of the court, which create an unknown factor that the individual cannot reasonably expect, constitute grounds for setting aside the decision vitiated by irregularity. ( )

121. In the present case, Guardian Europe relied, in support of its claim for damages, solely on the manifest failure to have regard to the Court’s case-law, which, for the reasons set out above, does not suffice to characterise a failure. Consequently, Guardian Europe’s criticism of the decision of the General Court in paragraph 124 of the judgment under appeal cannot be upheld.

122. It follows from the foregoing that the sixth ground of appeal must be rejected.

VI. Costs

123. As the case must be referred back to the General Court, the costs pertaining to the present proceedings on appeal should be reserved.

VII. Conclusion

124. Having regard to the foregoing considerations, I propose that the Court should:

1) Set aside in part the judgment of the General Court of the European Union of 7 June 2017, Guardian Europe v European Union (T‑673/15, EU:T:2017:377), in so far as the General Court dismissed Guardian Europe Sàrl’s action on the ground that it had not sustained any loss of profit owing to the General Court’s breach of the obligation to adjudicate within a reasonable time and the principle of equal treatment in Commission Decision C(2007) 5791 final of 28 November 2007 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/39165 — Flat glass);

2) Dismiss the appeal as to the remainder;

3) Dismiss the cross-appeal;

4) Refer the case back to the General Court of the European Union;

5) Reserve the decision as to costs.