European Union v Kendrion NV.
Date: 2018-12-13
32


Moreover, as regards, in particular, the breach of the obligation to adjudicate within a reasonable time, it should be recalled that the Court has repeatedly held that the sanction for a breach, by a Court of the European Union, of its obligation under the second paragraph of Article 47 of the Charter to adjudicate on the cases before it within a reasonable time must be an action for damages brought before the General Court, since such an action constitutes an effective remedy. The Court has thus specified that a claim for compensation for the damage caused by the failure on the part of the General Court to adjudicate within a reasonable time may not be made directly to the Court of Justice in the context of an appeal, but must be brought before the General Court itself (see judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 55 and the case-law cited).
37


As regards the proceedings at first instance, the Court has already specified that the General Court, which has jurisdiction under Article 256(1) TFEU, hearing a claim for damages seeking compensation for the alleged damage resulting from the failure to adjudicate within a reasonable time, must sit in a different composition from that which heard the dispute giving rise to the procedure whose duration is criticised (see judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 56 and the case-law cited).
44


In those circumstances, the appeal is admissible. That said, that conclusion is without prejudice to the examination of the admissibility of certain arguments considered individually (judgment of 4 May 2017, RFA International v Commission, C‑239/15 P, not published, EU:C:2017:337, paragraph 20 and the case-law cited).
52


It should be recalled that, as the Court has previously stated, the condition under the second paragraph of Article 340 TFEU relating to a causal link concerns a sufficiently direct causal nexus between the conduct of the EU institutions and the damage, the burden of proof of which rests on the applicant, so that the conduct complained of must be the determining cause of the damage (see order of 31 March 2011, Mauerhofer v Commission, C‑433/10 P, not published, EU:C:2011:204, paragraph 127 and the case-law cited).
54


In that regard, it must be observed that, in an action for damages brought against the Commission, for the purposes, in particular, of reimbursement of the guarantee charges incurred by the applicants in order to obtain the suspension of the decisions to recover the refunds at issue in the main proceedings, decisions which were subsequently withdrawn, the Court held that, when a decision requiring the payment of a fine is coupled with the option of lodging a security intended to ensure that payment along with interest on late payment, pending the outcome of an action brought against that decision, the loss consisting of the guarantee fees results, not from that decision, but from the interested party’s own choice to lodge a security rather than to fulfil its repayment obligation immediately. In those circumstances, the Court established that there is no direct causal link between the conduct complained of and the damage alleged (see, to that effect, judgment of 28 February 2013, Inalca and Cremonini v Commission, C‑460/09 P, EU:C:2013:111, paragraphs 118 and 120).
57


However, the two circumstances referred to by the General Court in paragraphs 87 and 88 of the judgment under appeal cannot be relevant for finding that the causal link between the breach of the obligation to adjudicate within a reasonable time, in Case T‑54/06, and the damage suffered by Kendrion as a result of paying bank guarantee charges during the period by which that time was exceeded cannot have been severed by the decision of that undertaking to provide that guarantee.
58


That would be the case only if it were compulsory to maintain the bank guarantee, so that the undertaking which brought an action against a Commission decision imposing a fine on it, and which chose to provide a bank guarantee in order not to comply immediately with that decision, was not entitled, before the date on which the judgment on that action was delivered, to pay that fine and put an end to the bank guarantee that it had provided (judgment delivered today, C‑138/17 P and C‑146/17 P, European Union v Gascogne Sack Deutschland and Gascogne, paragraph 28).
59


As the Advocate General noted in points 57, 69 and 70 of his Opinion, and as the Court of Justice has already found, like the provision of the bank guarantee, the maintenance of that guarantee is a matter for the discretion of the undertaking concerned in the light of its financial interests. Nothing prevents, as a matter of EU law, that undertaking from terminating, at any time, the bank guarantee that it has provided and paying the fine imposed, where, in view of the evolution of the circumstances in relation to those existing on the date when that guarantee was provided, that undertaking deems that option more advantageous for it. That might be the case, in particular, where the conduct of the proceedings before the General Court leads the undertaking in question to take the view that the judgment will be delivered at a date later than that which it had initially envisaged and that, consequently, the cost of the bank guarantee will be higher than the cost that it had initially envisaged when providing that guarantee (judgment delivered today, C‑138/17 P and C‑146/17 P, European Union v Gascogne Sack Deutschland and Gascogne, paragraph 29).
61


In those circumstances, the breach of the obligation to adjudicate within a reasonable time in Case T‑54/06 cannot be the determining cause of the damage suffered by Kendrion as a result of paying bank guarantee charges during the period by which that time was exceeded. As the Advocate General noted in point 80 of his Opinion, such damage is the consequence of Kendrion’s own decision to maintain the bank guarantee throughout the proceedings in that case, despite the financial consequences which that entailed.
70


In the second place, the General Court failed to provide a statement of reasons for the finding in paragraph 58 of the judgment under appeal either so far as concerns the period of 15 months or as regards the additional period of one month per case. Moreover, there is a contradiction inasmuch as that approach is based on the idea that the complexity grows with the number of cases whereas that complexity was already taken into account in the determination of the period of inactivity of 15 months which was held to be acceptable in any cartel case, and that, in the judgment of26 November 2013, Kendrion v Commission (C‑50/12 P, EU:C:2013:771, paragraph 104), the Court determined that the grounds of appeal put forward by Kendrion ‘did not present any particular difficulties’.
79


Lastly, regarding Kendrion’s argument raised in paragraph 69 of this judgment, which consists, in fact, of challenging the findings of the General Court in the light of the circumstances specific to Case T‑54/06, it should be pointed out that the appellant in the cross-appeal cannot seek to have the Court of Justice substitute its own assessment for that of the General Court. According to settled case-law, an appeal is limited to points of law. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence adduced. The appraisal of those facts and the assessment of that evidence thus does not, save where they distort the facts or evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see order of 3 September 2013, Idromacchine and Others v Commission, C‑34/12 P, not published, EU:C:2013:552, paragraph 64 and the case-law cited). However, in this case, Kendrion has not pleaded, let alone established, such a distortion, so that that argument is inadmissible.
80


As regards, in the second place, the line of argument alleging a failure to state reasons, it should be borne in mind that, according to settled case-law, the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s reasoning, so that the persons concerned can ascertain the reasons for the decision taken and the Court of Justice can exercise its power of review (judgment of 2 April 2009, France Télécom v Commission, C‑202/07 P, EU:C:2009:214, paragraph 29 and the case-law cited).
86


As a preliminary point, it should be recalled that, as the General Court noted, in paragraph 64 of the judgment under appeal, any damage for which compensation is sought in an action for non-contractual liability of the European Union under the second paragraph of Article 340 TFEU must be actual and certain (judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 61 and the case-law cited).
89


Moreover, the Court has specified that it is for the party seeking to establish the European Union’s non-contractual liability to adduce conclusive proof as to the existence and extent of the damage it alleges (judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 62 and the case‑law cited).
94


In that regard, it should be recalled that, according to the Court of Justice’s settled case-law, a distortion must be obvious from the documents in the Court’s file, without any need to carry out a new assessment of the facts and the evidence (judgment of 8 March 2016, Greece v Commission, C‑431/14 P, EU:C:2016:145, paragraph 32, and the case-law cited).
100


However, in the light (i) of paragraph 80 of the judgment under appeal, and, in particular, of the General Court’s finding that there was no actual and certain damage in respect of the payment of default interest, and (ii) of the case-law referred to in paragraphs 35 and 36 of the judgment under appeal, according to which if any one of the conditions governing non-contractual liability on the part of the European Union is not satisfied, the entire action must be dismissed and it is unnecessary to consider the other conditions for such liability (see, inter alia, judgment of 14 October 1999, Atlanta v European Community, C‑104/97 P, EU:C:1999:498, paragraph 65), it is apparent from the judgment under appeal that the General Court rejected any claim for compensation arising from payment of that interest.
106


In the first place, it should be observed, as the Advocate General notes in point 127 of his Opinion, that the case-law arising from the judgment of 17 December 1998, Baustahlgewebe v Commission (C‑185/95 P, EU:C:1998:608), on which Kendrion relies to claim that the General Court erred in law when determining the non-material damage and to support its claim for compensation of a sum corresponding to 5% of the amount of the fine, was modified by the Court (see, to that effect, judgment of 26 November 2013, Kendrion v Commission, C‑50/12 P, EU:C:2013:771, paragraphs 77 to 108, and the case-law cited), and is therefore no longer relevant for the purposes of determining compensation aimed at making good, under Article 340 TFEU, the non-material damage caused by the breach of the obligation to adjudicate within a reasonable time.
108


In the second place, it should be pointed out that, contrary to what the appellant in the cross-appeal submits, in view of the non-material damage, compensation such as that at issue may constitute appropriate compensation for the purposes of Article 340 TFEU to make good such damage (see, to that effect, judgment of 14 June 1979, V. v Commission, 18/78, EU:C:1979:154, paragraph 19), so that that appellant cannot rely on its right to an effective remedy within the meaning of Article 47 of the Charter.
110


Lastly, it should be borne in mind that, in the particular context of actions for damages, the Court has repeatedly held that, once the General Court has found the existence of damage, it alone has jurisdiction to assess, within the confines of the claim, the means and extent of compensation for the damage. However, in order for the Court of Justice to be able to review the judgments of the General Court, those judgments must be sufficiently reasoned and, as regards the assessment of the damage, indicate the criteria taken into account for the purposes of determining the amount decided upon (see judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraphs 50 and 51 and the case-law cited).
117


In that regard, it should be recalled that, in accordance with settled case-law, the European Union may incur non-contractual liability under the second paragraph of Article 340 TFEU only if a number of conditions are fulfilled, namely the unlawfulness of the conduct alleged against the EU institution, the fact of damage and the existence of a causal link between the conduct of that institution and the damage complained of (judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 64 and the case-law cited).
118


As the General Court pointed out in paragraph 36 of the judgment under appeal, if any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions for non-contractual liability on the part of the European Union (judgment of 14 October 1999, Atlanta v European Community, C‑104/97 P, EU:C:1999:498, paragraph 65 and the case‑law cited). Moreover, the EU judicature is not required to examine those conditions in any particular order (judgment of 18 March 2010, Trubowest Handel and Makarov v Council and Commission, C‑419/08 P, EU:C:2010:147, paragraph 42 and the case-law cited).