Appeals — Actions for damages — Second paragraph of Article 340 TFEU — Excessive length of the proceedings in a case before the General Court of the European Union — Compensation for the damage allegedly sustained by the applicant — Concept of a ‘single undertaking’ not applied — Material damage — Bank guarantee costs — Causal link –– Loss of profit — Non-pecuniary damage — Liability of the European Union for damage caused by infringements of EU law arising from a decision of the General Court –– No incurring of liability.
Date: 2019-09-05
32


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 (judgment of 13 December 2018, European Union v Kendrion, C‑150/17 P, EU:C:2018:1014, paragraph 52 and the case-law cited).
34


In that regard, it must be observed that, in an action for damages brought against the Commission, seeking, in particular, reimbursement of the guarantee fees incurred by the applicants in order to obtain the suspension of the decisions to recover the refunds at issue, decisions which were subsequently withdrawn, the Court held that, when a decision requiring the payment of a fine is coupled with the option of lodging a security intended to ensure that payment along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 relevant party’s own choice to lodge a security rather than to fulfil its repayment obligation immediately. In those circumstances, the Court established that there was no direct causal link between the conduct of which the Commission was accused 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).
37


However, those two circumstances cannot be relevant for finding that the causal link between the infringement of the obligation to adjudicate within a reasonable time, in Case T‑82/08, and the damage suffered by Guardian Europe as a result of paying bank guarantee costs during the period by which that time was exceeded cannot have been severed by the decision of that undertaking to provide the bank guarantee (see judgment of 13 December 2018, European Union v Kendrion, C‑150/17 P, EU:C:2018:1014, paragraph 57).
38


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 the fine and put an end to the bank guarantee that it had provided (judgment of 13 December 2018, European Union v Kendrion, C‑150/17 P, EU:C:2018:1014, paragraph 58 and the case-law cited).
39


As the Court has previously held, 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 of 13 December 2018, European Union v Kendrion, C‑150/17 P, EU:C:2018:1014, paragraph 59 and the case-law cited).
41


In those circumstances, the infringement of the obligation to adjudicate within a reasonable time in Case T‑82/08 cannot be the determining cause of the damage sustained by Guardian Europe as a result of paying bank guarantee costs during the period by which that time was exceeded. Such damage is the consequence of Guardian Europe’s own decision to maintain the bank guarantee throughout the proceedings in that case, despite the financial consequences which that entailed (see judgment of 13 December 2018, European Union v Kendrion, C‑150/17 P, EU:C:2018:1014, paragraph 61).
47


That being so, the General Court should have applied the principle — resulting from the Court’s case-law, in particular the judgments of 15 December 1966, Schreckenberg v Commission (59/65, EU:C:1966:60), and of 14 February 1989, Bossi v Commission (346/87, EU:C:1989:59, paragraphs 31 to 35), and the order of 4 October 2010, Ivanov v Commission (C‑532/09 P, not published, EU:C:2010:577, paragraphs 23 to 25) — that a definitive decision cannot be challenged through an action for damages which has the same object and effect as an action for annulment would have had, and should, accordingly, have dismissed Guardian Europe’s claim for compensation concerning an alleged loss of profit as inadmissible.
49


According to settled case-law, the action for damages under the second paragraph of Article 340 TFEU was introduced as an autonomous form of action, with a particular purpose to fulfil within the system of actions and subject to conditions on its use dictated by its specific purpose, and hence a declaration of inadmissibility of the application for annulment does not automatically render the action for damages inadmissible (order of 21 June 1993, Van Parijs and Others v Council and Commission, C‑257/93, EU:C:1993:249, paragraph 14 and the case-law cited).
50


However, although a party may take action by means of a claim for compensation without being obliged by any provision of law to seek the annulment of the illegal measure which causes him damage, he may not in that way circumvent the inadmissibility of an application which concerns the same instance of illegality and which has the same financial end in view (order of the President of the Court of 26 October 1995, Pevasa and Inpesca v Commission, C‑199/94 P and C‑200/94 P, EU:C:1995:360, paragraph 27 and the case-law cited).
51


Thus, an action for damages must be declared inadmissible where it is actually aimed at securing withdrawal of an individual decision which has become final and it would, if upheld, have the effect of nullifying the legal effects of that decision. That is the case if the applicant seeks, by means of a claim for damages, to obtain the same result as he would have obtained had he been successful in an action for annulment which he failed to commence in due time (see, to that effect, order of 4 October 2010, Ivanov v Commission, C‑532/09 P, not published, EU:C:2010:577, paragraphs 23 and 24 and the case-law cited).
55


As regards that decision, it should be recalled that, as the Court has previously stated, under the first paragraph of Article 266 TFEU the institution whose act has been declared void must take the necessary measures to comply with the judgment in question. That entails, inter alia, the payment of sums due, the recovery of amounts paid but not owed and the payment of default interest. In that context, the Court has explained that payment of such 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 (see judgment of 12 February 2015, Commission v IPK International, C‑336/13 P, EU:C:2015:83, paragraphs 29 and 30).
64


Therefore, the General Court was correct in holding, in paragraph 64 of the judgment under appeal, that Guardian Europe’s claim for compensation as regards an alleged loss of profit has neither the same object nor the same effect as an action for annulment brought against the decision of December 2014 and cannot, therefore, be held inadmissible by virtue of abuse of process.
74


In order to assess the merits of Guardian Europe’s complaint with regard to paragraph 122 of the judgment under appeal, it should be recalled that, in the context of the principle of liability on the part of a Member State for damage caused to individuals as a result of infringements of EU law for which the Member State can be held responsible, the Court has held that that principle is also applicable where the alleged infringement stems from a decision of a court of the Member State adjudicating at last instance (see judgment of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 50).
75


In so determining, the Court relied, in particular, on the essential role played by the judiciary in the protection of the rights derived by individuals from EU rules and on the fact that a court adjudicating at last instance is by definition the last judicial body before which individuals may assert the rights conferred on them by EU law. In the latter regard, the Court pointed out that, since an infringement of those rights by a final decision of such a court cannot thereafter normally be corrected, individuals cannot be deprived of the possibility of rendering the State liable in order in that way to obtain legal protection of their rights (see, to that effect, judgment of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraphs 33 and 34).
76


Contrary to Guardian Europe’s assertions, it is clear from the Court’s case-law that the principle referred to in paragraph 74 of the present judgment is not applicable where the infringement of EU law is committed by a court of a Member State not adjudicating at last instance (see, to that effect, judgment of 28 July 2016, Tomášová, C‑168/15, EU:C:2016:602, paragraph 36).
99


As regards the plea of inadmissibility alleging that the aforesaid claim was time-barred, it should be recalled that the Court has already held that limitation constitutes an objection to admissibility which, unlike procedural time limits, is not absolute, but extinguishes the action for damages solely at the request of the defendant (judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 54) and that compliance with a limitation period may not be raised by a Court of the European Union of its own motion but must be raised by the party affected (judgment of 14 June 2016, Marchiani v Parliament, C‑566/14 P, EU:C:2016:437, paragraph 94 and the case-law cited).
102


Thirdly, so far as concerns Guardian Europe’s line of argument that the General Court, in paragraphs 103 and 153 of the judgment under appeal, failed to apply the concept of an ‘undertaking’, within the meaning of EU law, it should be recalled that the Court of Justice has already held that the authors of the Treaties chose to use the concept of an ‘undertaking’ to designate the perpetrator of an infringement of competition law, who is liable to be punished pursuant to Article 101 or 102 TFEU, and not the concept of a ‘company or firm’ or of a ‘legal person’, used in Article 54 TFEU (judgment of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 102).
103


It is apparent from the Court’s case-law that EU competition law refers to the activities of undertakings and that the concept of an ‘undertaking’ covers any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed (judgment of 27 April 2017, Akzo Nobel and Others v Commission, C‑516/15 P, EU:C:2017:314, paragraph 47 and the case-law cited).
104


The Court has also stated that, in the same context, the term ‘undertaking’ must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (judgment of 27 April 2017, Akzo Nobel and Others v Commission, C‑516/15 P, EU:C:2017:314, paragraph 48 and the case-law cited).
130


The Commission, relying, in particular, on the judgment of 28 February 2013, Inalca and Cremonini v Commission (C‑460/09 P, EU:C:2013:111, paragraph 99), submits that the claim for compensation on account of alleged damage to Guardian Europe’s reputation stemming from the decision at issue is time-barred, as such damage is not recurrent in nature and arose wholly on the date of adoption of that decision.
135


As regards, in the first place, the grounds referred to in paragraphs 113 and 145 of the judgment under appeal, it should be recalled that, in accordance with the Court’s settled case-law, first, any damage for which compensation is sought in an action to establish non-contractual liability of the European Union under the second paragraph of Article 340 TFEU must be actual and certain. Secondly, in order for the non-contractual liability of the European Union to be capable of being incurred, the damage must flow sufficiently directly from the unlawful conduct of the institutions. In any event, 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, and as to the existence of a sufficiently direct causal nexus between the conduct of the institution concerned and the damage alleged (judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraphs 61 and 62 and the case-law cited).
137


Furthermore, it should be recalled that, in accordance with settled case-law, the General Court has exclusive jurisdiction to find and assess the facts and, in principle, to examine the evidence that it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. That assessment does not, therefore, constitute, save where the clear sense of that evidence has been distorted, a point of law which is subject, as such, to review by the Court of Justice. Moreover, such a distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and evidence (judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 23 and the case-law cited).
143


In accordance with the Court’s case-law, where one of the grounds adopted by the General Court is sufficient to sustain the operative part of its judgment, any defects that might vitiate other grounds given in the judgment concerned have, in any event, no bearing on that operative part and, accordingly, a plea relying on such defects is ineffective and must be dismissed (judgment of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 68 and the case-law cited).
147


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).
148


As the Court has previously held, 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). Nor is the EU judicature 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).