European Commission v IPK International - World Tourism Marketing Consultants GmbH.
Date: 2015-02-12
19. The Commission submits that the General Court erred in law in failing to have regard to the case-law of the Court of Justice relating to compensatory interest. Accordingly, the General Court did not comply with the case-law of the Court of Justice, devolving, inter alia, from the judgment in Mulder and Others  v Council and Commission (C‑104/89 and C‑37/90, EU:C:2000:38, paragraph 214), or with that of the General Court, devolving, inter alia, from the judgment in Agraz and Others  v Commission (T‑285/03, EU:T:2008:526, paragraph 50), according to which compensatory interest is intended to compensate for the inflation recorded in the Member State where the creditor is based, by making up for the losses resulting from the fall in the value of money.
29. Furthermore, under the first paragraph of Article 266 TFEU, the institution whose act has been declared void must take the necessary measures to comply with that judgment. That entails, inter alia, the payment of sums due, the recovery of amounts paid but not owed and the payment of default interest.
30. In that regard, it must be pointed out 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.
31. It follows that the basis for the Commission’s obligation to pay the principal debt together with interest is not its duty to implement the contested decision but its duty to comply with the judgment of 15 April 2011 in IPK International  v Commission  (EU:T:2011:185) pursuant to Article 266 TFEU.
33. However, complaints directed against grounds included in a judgment of the General Court purely for the sake of completeness cannot lead to the judgment being set aside and are therefore ineffective ab initio (see, to that effect, judgments in France  v People’s Mojahedin Organization of Iran , C‑27/09 P, EU:C:2011:853, paragraph 79 and Hungary  v Commission , C‑31/13 P, EU:C:2014:70, paragraph 82).
37. In addition, as the Advocate General noted in point 93 of his Opinion, the grant of compensatory interest does not fall within the legal framework of the measure adopted to comply with the judgment, for the purposes of the first paragraph of Article 266 TFEU, but comes under the second paragraph of Article 266 TFEU, which refers to Article 340 TFEU, that is to say, to the general law on the non-contractual liability of the European Union (see, to that effect, judgment in Commission  v Brazzelli Lualdi and Others , C‑136/92 P, EU:C:1994:211, paragraph 42). That category of interest is designed to compensate for the time that passes before the judicial assessment of the amount of damage, irrespective of any delay attributable to the debtor.
47. The jurisdiction of the Court of Justice in an appeal is confined to review of the findings of law on the pleas argued before the General Court. Accordingly, a party cannot in principle put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court, because that would amount to allowing the Court of Justice to review the legality of the findings of the General Court in the light of pleas which the latter did not have occasion to hear and determine (see, to that effect, judgment in Germany  v Commission , C‑544/09 P, EU:C:2011:584, paragraph 63). It follows that a part of a plea raised for the first time in that context must be considered to be inadmissible (see, to that effect, judgment in FENIN  v Commission , C‑205/03 P, EU:C:2006:453, paragraph 22).
53. Admittedly, if the grounds of a judgment of the General Court disclose an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about the annulment of that judgment, and a substitution of grounds must be made (see, to that effect, judgment in Comitato ‘Venezia vuole vivere’ and Othe rs v Commission , C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 118 and the case-law cited).
54. However, as the Advocate General observed in point 120 of his Opinion, there is no specific justification, in the present case, for the capitalisation of the default interest payable to IPK.
64. Nevertheless, the errors of law made by the General Court cannot invalidate the judgment under appeal, if its operative part is well founded on other legal grounds (see, to the effect, judgments in Commission  v Sytraval and Brink’s France , C‑367/95 P, EU:C:1998:154, paragraph 47, and Biret et Cie  v Council , C‑94/02 P, EU:C:2003:518, paragraph 63).
66. Consequently, it is appropriate to reject as ineffective ab initio the argument alleging that the judgment under appeal is vitiated by a contradictory statement of reasons in relation to the calculation of the default interest.
71. It is clear from paragraphs 29 to 31 above that the Commission’s obligation to pay default interest arises from the first paragraph of Article 266 TFEU. Accordingly, the Commission cannot reasonably argue that the implementation of that obligation would entail the unjust enrichment of IPK.
76. As was pointed out in paragraph 54 above, it is not appropriate to grant the request for capitalisation of the default interest payable to IPK. Consequently, the default interest payable by the Commission to IPK must be calculated solely on the basis of the principal debt at issue and remain payable until such time as the judgment of 15 April 2011 in IPK  v Commssion (EU:T:2011:185) is fully complied with.
Costs