European Commission v Printeos, SA.
Date: 2021-01-20
In that context, referring, in particular, to the judgment of 12 February 2015, Commission v IPK International (C‑336/13 P, EU:C:2015:83, paragraphs 29 and 30), the General Court stated, in paragraph 56 of the judgment under appeal, that, in the event of the annulment of a decision imposing a fine or of a decision ordering repayment of sums unduly received, the case-law has recognised the right of the party concerned to be restored to the situation which it was in before that decision, which involves, inter alia, repayment of the principal sum that was unduly paid because of the annulled decision and the payment of default interest, since 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 provide compensation at a standard rate for the loss of use of the monies owed and to encourage the debtor to comply with that judgment as soon as possible.
However, as is apparent from paragraph 32 of the judgment under appeal, in response to an oral question from the General Court at the hearing, Printeos confirmed that the term ‘compensatory interest’, used in its action, must be understood as referring to ‘default interest’ within the meaning of the judgment of 12 February 2015, Commission v IPK International (C‑336/13 P, EU:C:2015:83, paragraph 30).
According to the Commission, which relies in that regard, in particular, on the judgment of 7 June 2018, Ori Martin v Court of Justice of the European Union (C‑463/17 P, EU:C:2018:411, paragraph 18), by admitting Printeos’s recharacterisation of the interest which it claimed, the General Court endorsed an unlawful change in the nature of the dispute, in breach of the Commission’s rights of defence, and therefore ruled ultra petita.
In that regard, it is clear from the case-law of the Court of Justice that the obligation to pay default interest is designed to compensate at a standard rate for the loss of enjoyment of the monies owed and to encourage the debtor to pay monies owed as soon as possible (see, to that effect, judgment of 12 February 2015, Commission v IPK International, C‑336/13 P, EU:C:2015:83, paragraph 30). Such an obligation 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.
As far as compensatory interest is concerned, 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. It therefore belongs to the general law on the non-contractual liability of the European Union for the purposes of the second paragraph of Article 266 TFEU and Article 340 TFEU (judgment of 12 February 2015, Commission v IPK International, C‑336/13 P, EU:C:2015:83, paragraph 37).
Although the EU judicature must rule only on the heads of claim put forward by the parties, whose role it is to define the framework of the dispute, it cannot confine itself to the arguments put forward by the parties in support of their claims, or it might be forced, in some circumstances, to base its decisions on erroneous legal considerations (judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 65 and the case-law cited).
The facts of the present case are thus different from those of the case which gave rise to the judgment of 7 June 2018, Ori Martin v Court of Justice of the European Union (C‑463/17 P, EU:C:2018:411), cited by the Commission. As is apparent from paragraph 23 of that judgment, in that case the General Court examined the question whether the defendant had committed an irregularity other from that alleged by the applicant in its application.
The Commission considers that it would have been under an obligation to pay default interest to Printeos only in the event of late repayment of the fine paid by Printeos after the annulment of the 2014 Decision. It submits that the General Court therefore failed to have regard, in paragraph 67 of the judgment under appeal, to the nature and purpose of default interest, which is to encourage the debtor to perform its payment obligation promptly. It asserts that the General Court confused default interest and compensatory interest, as is apparent from paragraph 56 of the judgment under appeal, and, in paragraph 32 of that judgment, misread paragraph 30 of the judgment of 12 February 2015, Commission v IPK International (C‑336/13 P, EU:C:2015:83). In that regard, the Commission emphasises that it was required to pay compensatory interest only in the event of inflation between the date of payment of that fine and the date of its repayment. In the present case, there was no such inflation.
It is apparent from the case-law of the Court of Justice that, where amounts are received in breach of EU law, a right of restitution arises under EU law (see, to that effect, judgment of 19 July 2012, Littlewoods Retail and Others, C‑591/10, EU:C:2012:478, paragraph 26).
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, to that effect, judgment of 18 January 2017, Wortmann, C‑365/15, EU:C:2017:19, paragraph 37 and the case-law cited).
As particularly regards the annulment, by the EU judicature, of an EU measure involving payment of an amount to the European Union, the Court of Justice held that the 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 (judgment of 12 February 2015, Commission v IPK International, C‑336/13 P, EU:C:2015:83, paragraph 30).
The Court of Justice was called upon only to determine whether that failure to challenge prevented the undertaking from bringing an action for damages in order to obtain compensation for the harm which results from loss of enjoyment of a sum wrongly paid and is not covered by the amount corresponding to the default interest to be paid by the Commission, which the Court answered in the negative (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 64).
In that regard, it must be borne in mind that, according to settled case-law of the Court, where an EU institution has only considerably reduced, or even no, discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach of EU law capable of giving rise to the European Union’s non-contractual liability (judgments of 4 July 2000, Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraph 44, and of 19 April 2007, Holcim (Deutschland) v Commission, C‑282/05 P, EU:C:2007:226, paragraph 47).
According to the Commission, the interest claimed by Printeos under its second head of claim before the General Court is interest on interest. It maintains that, according to the judgment of 12 February 2015, Commission v IPK International (C‑336/13 P, EU:C:2015:83, paragraphs 54 and 76), compounding interest is not justified.
In the present case, it should be noted, first, that the Commission’s obligation to include default interest on the repayment of the amount of the fine provisionally paid by Printeos follows from Article 266 TFEU and the case-law of the Court of Justice interpreting that provision, in particular the judgment of 12 February 2015, Commission v IPK International (C‑336/13 P, EU:C:2015:83, paragraphs 31 and 71).