1 By its appeal, the European Commission seeks to have set aside in part the judgment of the General Court of the European Union of 19 January 2022, Deutsche Telekom v Commission (T‑610/19, ‘the judgment under appeal’, EU:T:2022:15), by which the General Court ordered the Commission to pay damages in the amount of EUR 1 750 522.83 to Deutsche Telekom AG by way of compensation for the harm suffered, annulled the Commission’s decision of 28 June 2019 refusing to pay default interest to Deutsche Telekom (‘the decision at issue’) and dismissed Deutsche Telekom’s action as to the remainder. Legal context European Union law The 2012 Financial Regulation
2 Under the heading ‘Establishment of amounts receivable’, Article 78 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1; ‘the 2012 Financial Regulation’) provided the following in paragraph 4: ‘The Commission shall be empowered to adopt delegated acts in accordance with Article 210 concerning detailed rules on the establishment of amounts receivable, including procedures and supporting documents, and of default interest.’ Delegated Regulation (EU) No 1268/2012
3 Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of the 2012 Financial Regulation (OJ 2012 L 362, p. 1) was adopted by the Commission on the basis, inter alia, of Article 78(4) of the 2012 Financial Regulation.
4 Under Article 83 of Delegated Regulation No 1268/2012, entitled ‘Default interest’: ‘1. Without prejudice to any specific provisions deriving from the application of sector-specific regulations, any amount receivable not repaid on the deadline referred to in Article 80(3)(b) shall bear interest in accordance with paragraphs 2 and 3 of this Article. 2. The interest rate for amounts receivable not repaid on the deadline referred to in Article 80(3)(b) shall be the rate applied by the European Central Bank [(ECB)] to its principal refinancing operations, as published in the C series of the Official Journal of the European Union [(‘the ECB refinancing rate’)], in force on the first calendar day of the month in which the deadline falls, increased by: (a) eight percentage points where the obligating event is a public supply and service contract referred to in Title V; (b) three and a half percentage points in all other cases. 3. Interest shall be calculated from the calendar day following the deadline referred to in Article 80(3)(b) and specified in the debit note up to the calendar day on which the debt is repaid in full. The recovery order corresponding to the amount of the default interest shall be issued when this interest is actually received. 4. In the case of fines, where the debtor provides a financial guarantee which is accepted by the accounting officer instead of payment, the interest rate applicable from the deadline referred to in Article 80(3)(b) shall be the rate referred to in paragraph 2 of this Article as in force on the first day of the month in which the decision imposing a fine has been adopted and increased only by one and a half percentage points.’
5 Article 90 of that regulation, entitled ‘Recovery of fines or other penalties’, provided: ‘1. Where an action is brought before the Court of Justice of the European Union against a Commission decision imposing a fine or other penalties under the [FEU Treaty] or Euratom Treaty and until such time as all legal remedies have been exhausted, the debtor shall either provisionally pay the amounts concerned on the bank account designated by the accounting officer or provide a financial guarantee acceptable to the accounting officer. The guarantee shall be independent of the obligation to pay the fine or penalty payment or other penalties and shall be enforceable upon first call. It shall cover the claim as to principal and the interest due as specified in Article 83(4). 2. The Commission shall secure the provisionally cashed amounts by having them invested in financial assets thus ensuring the security and liquidity of the monies whilst also aiming at yielding a positive return. … 4. After all legal remedies have been exhausted and where the fine or penalty has been cancelled or reduced any of the following measures shall be taken: (a) the amounts unduly collected together with the interest yielded shall be repaid to the third party concerned. In cases where the overall return yielded for the relevant period has been negative, the nominal value of the amounts unduly collected shall be repaid; (b) where a financial guarantee has been lodged, the latter shall be released accordingly.’ Background to the dispute
6 On 15 October 2014, the Commission adopted Decision C(2014) 7465 final relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39523 - Slovak Telekom), rectified by Commission Decision C(2014) 10119 final of 16 December 2014, and also by Commission Decision C(2015) 2484 final of 17 April 2015.
7 By that decision, the Commission imposed on Deutsche Telekom a fine of EUR 31 070 000 for abuse of its dominant position on the Slovak market for broadband telecommunications services, in breach of Article 102 TFEU and Article 54 of the EEA Agreement.
8 Deutsche Telekom brought an action for annulment of that decision while provisionally paying the fine on 16 January 2015. By its judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930; ‘the 2018 judgment in Deutsche Telekom ’), the Court upheld Deutsche Telekom’s action in part and, in the exercise of its unlimited jurisdiction, reduced that fine by EUR 12 039 019. On 19 February 2019, the Commission repaid that amount to Deutsche Telekom.
9 On 12 March 2019, Deutsche Telekom asked the Commission to pay it default interest corresponding to the amount unduly collected for the period from the date of payment of the fine to the date of repayment of that amount (‘the relevant period’).
10 By the decision at issue, the Commission refused that request. It argued that, under Article 90(4)(a) of Delegated Regulation No 1268/2012, default interest should not be added to the nominal amount of the fine unduly collected, because the overall return on the investment of that amount in financial assets, which it had made pursuant to Article 90(2), had been negative.
11 In that decision, the Commission also examined Deutsche Telekom’s argument that that company was entitled, in accordance with the judgment of the General Court of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), to receive default interest at the ECB refinancing rate, increased by 3.5 percentage points. In response to that argument, the Commission explained that that judgment did not constitute a legal basis for paying the default interest claimed by Deutsche Telekom. In addition, it argued that that judgment had to be without prejudice to the application of Article 90(4)(a) of Delegated Regulation No 1268/2012. Lastly, it stated that it had lodged an appeal against that judgment, which was therefore not final. The action before the General Court and the judgment under appeal
12 By application lodged at the Registry of the General Court on 9 September 2019, Deutsche Telecom brought an action before the General Court seeking annulment of the decision at issue and an order directing the Commission to pay compensation arising from lost revenue as a result of the loss of enjoyment, during the relevant period, of the amount of the fine unduly collected or, in the alternative, compensation for the harm suffered as a result of the Commission’s refusal to pay default interest on that amount.
13 The General Court upheld those claims in part.
14 In the first place, the General Court rejected Deutsche Telekom’s claim for compensation based on the non-contractual liability of the European Union for the alleged loss of revenue arising from the loss of enjoyment during the relevant period of the amount of the fine that had been unduly collected and which corresponds to the annual return on its invested capital or to the weighted average cost of its capital.
15 According to the General Court, Deutsche Telekom had failed to adduce conclusive proof of the actual and certain nature of the harm alleged. More specifically, Deutsche Telekom has not demonstrated that it would necessarily have invested in its business the amount of the fine that had been unduly collected, or that the loss of enjoyment of that amount led it to abandon specific concrete projects, or that it did not have an alternative source of financing.
16 In the second place, the Court examined Deutsche Telekom’s claim, put forward in the alternative, for compensation for infringement of the first paragraph of Article 266 TFEU, which requires institutions whose act has been declared void by a judgment of a Court of the European Union to take all necessary measures to comply with that judgment.
17 Relying on the case-law of the Court of Justice arising from the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39; ‘the judgment in Printeos ’), the General Court recalled in paragraph 72 of the judgment under appeal that, where amounts are received in breach of EU law, a right of restitution with interest arises under EU law and that that is the case, in particular, where the amounts were received pursuant to an EU measure declared invalid or annulled by a Court of the European Union.
18 In paragraph 75 of the judgment under appeal, the General Court stated that the payment of default interest on the amount unduly collected would seem to be an essential component of the Commission’s obligation to restore the applicant to his or her original position following a judgment of annulment, or a judgment exercising the Court’s unlimited jurisdiction.
19 More particularly, as regards the award of such interest from the date of provisional payment of the fine at issue, the General Court found, in paragraph 88 of the judgment under appeal, that that award is intended to compensate at a standard rate the undertaking which paid that fine for the loss of enjoyment of its funds during the period from the date of provisional payment of that fine to the date of its repayment.
20 Consequently, the General Court held in paragraph 113 of the judgment under appeal that the Commission’s refusal to pay that interest to Deutsche Telekom constitutes a sufficiently serious breach of the first paragraph of Article 266 TFEU, which may render the European Union non-contractually liable. Given the direct causal link between that infringement and the harm consisting in the loss, during the relevant period, of default interest on the amount of the fine that had been unduly collected, the Court awarded Deutsche Telekom compensation in the amount of EUR 1 750 522.38, calculated by application, by analogy, of the rate provided for in Article 83(2)(b) of Delegated Regulation No 1268/2012, namely the ECB refinancing rate in force in January 2015, that being 0.05%, increased by 3.5 percentage points.
21 In the third place, as regards the application for annulment of the decision at issue, the General Court granted that application for the same reasons as those which led it to consider, when examining the claim for damages, that the Commission had infringed the first paragraph of Article 266 TFEU by refusing to pay default interest to Deutsche Telekom on the amount of the fine unduly collected for the relevant period. Forms of order sought by the parties before the Court of Justice
22 The Commission claims that the Court should: - set aside the judgment under appeal, in so far as it upholds Deutsche Telekom’s action; - give a ruling itself on the outstanding issues of the dispute; - in the alternative, in so far as it has not yet been resolved, refer the case back to the General Court for reconsideration; and - order Deutsche Telekom to pay all the costs relating to the present proceedings and to the proceedings before the General Court.
23 Deutsche Telekom claims that the Court should: - dismiss the appeal; and - order the Commission to bear its own costs and to pay the costs incurred by Deutsche Telekom in the proceedings before the General Court and the Court of Justice. The appeal
24 In support of its appeal, the Commission relies on two grounds, alleging, first, that the General Court erred in law in finding that Article 266 TFEU imposes on the Commission an absolute and unconditional obligation to pay retroactively ‘punitive default interest’ from the date of provisional payment of the fine and, second, that the General Court erred in law in finding that the rate of default interest which the Commission is required to pay corresponds, by analogy, to that laid down in Article 83(2)(b) of Delegated Regulation No 1268/2012, at the ECB refinancing rate increased by 3.5 percentage points. Admissibility of the appeal
25 Deutsche Telekom submits that the appeal is inadmissible in its entirety in that it is, in actual fact, directed not against the judgment under appeal, but against the judgment in Printeos , which has become final. In addition, Deutsche Telekom submits that the various parts of the first ground of appeal and the second ground of appeal are inadmissible in so far as they merely repeat the arguments put forward before the General Court, or in so far as they were raised for the first time at the appeal stage. As regards, more specifically, the first ground of appeal, the inadmissibility of that ground of appeal also stems from the fact that the Commission, in breach of the requirement laid down in Article 169(2) of the Rules of Procedure of the Court of Justice, failed to identify the paragraphs of the grounds of the judgment under appeal from which it is apparent that the obligation to pay interest is in the nature of a penalty.
26 The Commission submits that its appeal is admissible in its entirety.
27 In that regard, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169 of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. According to settled case-law, that requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the General Court’s judgment, merely reproduces the pleas in law and arguments which have previously been submitted to that Court. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (judgment of 15 July 2021, DK v EEAS , C‑851/19 P, EU:C:2021:607, paragraph 32 and the case-law cited).
28 However, provided that an appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. If an appellant could not thus base his or her appeal on pleas and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (judgment of 15 July 2021, DK v EEAS , C‑851/19 P, EU:C:2021:607, paragraph 33 and the case-law cited).
29 Furthermore, the Court of Justice has repeatedly held that an appellant is entitled to lodge an appeal relying on grounds which arise from the judgment under appeal and seek to criticise, in law, its correctness (judgment of 26 February 2020, EEAS v Alba Aguilera and Others , C‑427/18 P, EU:C:2020:109, paragraph 54 and the case-law cited).
30 Finally, the Commission, like any other party to an appeal, must retain the opportunity to call into question the legal principles which the General Court applied in the judgment under appeal, even if those principles were developed in judgments that cannot or can no longer be the subject of an appeal.
31 In the present case, the appeal seeks, as the Commission observed in the introduction to the appeal, to invite the Court to reconsider its case-law arising from the judgment in Printeos , on which the judgment under appeal is based to a large extent, and which fails to have regard to the case-law prior to that judgment. The arguments put forward by the Commission identify with sufficient precision the contested elements of the judgment under appeal and the grounds on which that judgment is, in its view, vitiated by errors of law, and is therefore not limited, contrary to what Deutsche Telekom claims, to a mere repetition or reproduction of the arguments put forward by that institution before the General Court.
32 Accordingly, Deutsche Telekom’s plea of inadmissibility must be rejected. The first ground of appeal Arguments of the parties
33 By its first ground of appeal, the Commission submits that the General Court erred in law in holding that Article 266 TFEU imposes on the Commission an absolute, unconditional obligation to pay retroactively ‘punitive default interest’ from the date of provisional payment of the fine.
34 That ground of appeal is divided into six parts.
35 By the first part of the first plea, the Commission denies having committed a sufficiently serious breach of the first paragraph of Article 266 TFEU by failing to pay default interest in the amount claimed by Deutsche Telekom.
36 According to the Commission, the concept of default interest, of the kind claimed by Deutsche Telekom and granted by the General Court, presupposes that a debtor is, at the very least negligently, late in making payment. Moreover, the General Court defined default interest, in the judgment of 8 June 1995, Siemens v Commission (T‑459/93, EU:T:1995:100, paragraph 101), as interest ‘payable by reason of the delay in the performance of the obligation to repay’. However, in the present case, following the 2018 judgment in Deutsche Telekom , the Commission immediately repaid the amount of the fine unduly collected and there was therefore never a ‘delay’ in payment. The default interest which it is required to pay pursuant to the judgment in Printeos and the judgment under appeal thus constitutes an unjustified penalty for the Commission.
37 By the second part of that ground of appeal, the Commission asserts that the judgment under appeal contradicts the case-law that predated the judgment in Printeos .
38 According to the Commission, the interest to which the repayment of sums of money unduly collected must be subject is not ‘punitive default interest’, which must be paid retroactively, but compensatory interest intended to prevent the unjust enrichment of the debtor, as is apparent, inter alia, from the 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). The Commission notes that although, in that judgment, the Court classified the interest to be paid as ‘default interest’, it nevertheless stated that that interest was governed by the provisions of Delegated Regulation No 1268/2012. It is therefore, in reality, compensatory interest corresponding to the interest generated by the investments made by the Commission on the basis of Article 90 of that delegated regulation. It cannot therefore be inferred from that judgment, to which paragraph 73 of the judgment under appeal refers, that the Commission should pay Deutsche Telekom the default interest that it claimed and which the General Court granted to it by the judgment under appeal.
39 On the basis of that case-law, the Commission accepts that, pursuant to the first paragraph of Article 266 TFEU, it is under an obligation, where the fines it imposed have subsequently been annulled or reduced by a Court of the European Union, to repay the amount of the fines unduly collected together with the interest yielded, in accordance with Article 90 of Delegated Regulation No 1268/2012. The prohibition of unjust enrichment, laid down in the case-law in such cases, prohibits it from retaining the interest yielded by those fines. Nevertheless, the Commission submits that it is Article 90(4) of that delegated regulation which should apply and which requires it to repay to the undertakings concerned, following a judgment annulling or reducing the fine provisionally collected, ‘the amounts unduly collected together with the interest yielded’. On the other hand, where the overall return on investment of the amounts corresponding to that fine has been negative, it is required to repay only ‘the nominal value of the amounts unduly collected’.
40 Application of the principles set out in the judgment under appeal would lead, in the current economic context, to unjust enrichment of the undertakings concerned, as a result of the recognition of an absolute and unconditional right to payment of interest at a rate corresponding to the ECB refinancing rate increased by 3.5 percentage points.
41 By the third part of the first plea, the Commission submits that Article 90 of Delegated Regulation No 1268/2012 governs the interest payable in order to comply with judgments of the EU Courts.
42 It questions, in particular, the merits of paragraph 97 of the judgment under appeal, in which the General Court held that, where the amount of interest yielded, within the meaning of Article 90(4) of Delegated Regulation No 1268/2012, is lower than the amount of default interest, the Commission is required to pay the difference between those two amounts. The consequence of that interpretation by the General Court is that that provision would de facto never be applicable. The interest yielded by a safe investment can never exceed default interest, the rate of which corresponds to the ECB refinancing rate increased by 3.5 percentage points.
43 By the fourth part of the first ground of appeal, the Commission submits that the conditions for the European Union to incur non-contractual liability, within the meaning of Article 340 TFEU, are not satisfied.
44 First of all, by requiring the Commission to pay default interest retroactively from the provisional payment of the fine, the General Court wrongly equated the mere setting of a fine, the amount of which is subsequently reduced by a Court of the European Union, with a sufficiently serious breach of a rule of law. Next, before the General Court, Deutsche Telekom had not proved that it had suffered any harm. In that regard, the Commission’s refusal to pay interest at the ECB refinancing rate increased by 3.5 percentage points cannot be regarded as a loss for Deutsche Telekom. Finally, it is contradictory to complain that the Commission committed a serious breach of the law on account of factors such as the duration of the court proceedings, which are beyond its control.
45 By the fifth part of the first ground of appeal, the Commission claims that the ex tunc effect of the EU Courts’ judgments does not entail the obligation to pay default interest from the date of provisional payment of the fine.
46 The Commission submits in that regard that, although the annulment of a measure by a Court of the European Union has the effect of retroactively eliminating that measure from the legal order of the European Union, the fact remains that, before the 2018 judgment in Deutsche Telekom , it was under no obligation to repay the fine, especially since its decisions enjoy a presumption of validity. The Commission highlights that the ex tunc effect of a judgment annulling or reducing a fine cannot oblige it to pay interest as from the provisional payment of that fine, when, on the date of that payment, it was neither required nor in a position to repay that fine.
47 The Commission adds that, contrary to what the General Court held, the principal claim, that is to say, the amount of the fine unduly collected, was not, on that date, in any event ‘certain [nor could it] at least be ascertained on the basis of established objective factors’, within the meaning of the judgment in Printeos (paragraph 55).
48 By the sixth part of the first ground of appeal, the Commission claims that the payment of default interest imposed by the judgment under appeal undermines the deterrent effect of fines.
49 The Commission submits that that effect must be taken into account when setting the amount of a fine. It observes, in that regard, that, since it is unable to determine in advance the outcome of any actions brought against its decisions imposing a fine or the duration of the corresponding court proceedings, it is not in a position, when setting the amount of a fine, to weigh that deterrent effect against the amount of default interest which it might be required to pay. Furthermore, the disproportionate nature of that interest, which, according to the Commission, could amount to more than half of the amount of the fines, would compromise their deterrent effect.
50 Deutsche Telekom disputes the Commission’s overall line of argument and contends that the first ground of appeal must be dismissed. Assessment of the Court
51 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 with ex tunc effect. That entails, inter alia, the payment of sums unduly collected on the basis of that act and the payment of interest (see, to that effect, judgments of 12 February 2015, Commission v IPK International , C‑336/13 P, EU:C:2015:83, paragraph 29, and 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 55).
52 It is also apparent from settled case-law that the payment of 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, moreover, after delivery of that annulling judgment, to encourage the debtor to comply with that judgment as soon as possible (see, to that effect, judgments of 12 February 2015, Commission v IPK International , C‑336/13 P, EU:C:2015:83, paragraph 30, and of 10 October 2001, Corus UK v Commission , T‑171/99, EU:T:2001:249, paragraphs 53 and 54 and the case-law cited).
53 It thus follows from the first paragraph of Article 266 TFEU that, in the event of annulment or reduction with ex tunc effect by a Court of the European Union of a fine imposed by a Commission decision for infringement of the competition rules, that institution is required to repay all or part of the fine provisionally paid, together with interest for the period from the date of provisional payment of that fine to the date of its repayment.
54 Moreover, the obligation to return sums of money unduly collected with interest applies not only to the institutions, bodies, offices and agencies of the European Union, but also to the authorities of the Member States.
55 In that regard, according to settled case-law, any person on whom a national authority has imposed the payment of a tax, duty, charge or other levy in breach of EU law has the right, under EU law, to obtain from that authority not only the repayment of the sum of money levied though not due, but also the payment of interest intended to compensate for the unavailability of that sum (see, to that effect, judgments of 9 November 1983, San Giorgio , 199/82, EU:C:1983:318, paragraph 12; of 8 March 2001, Metallgesellschaft and Others , C‑397/98 and C‑410/98, EU:C:2001:134, paragraph 84; of 19 July 2012, Littlewoods Retail and Others , C‑591/10, EU:C:2012:478, paragraphs 24 to 26; of 9 September 2021, Hauptzollamt B (Optional tax reduction) , C‑100/20, EU:C:2021:716, paragraphs 26 and 27; and of 28 April 2022, Gräfendorfer Geflügel- und Tiefkühlfeinkost Produktions and Others , C‑415/20, C‑419/20 and C‑427/20, EU:C:2022:306, paragraphs 51 and 52).
56 Consequently, where sums of money have been received in breach of EU law, whether by a national authority or an institution, body, office or agency of the European Union, those sums of money must be repaid and that refund must bear interest covering the entire period from the date of payment of those sums of money to the date of their repayment, which constitutes the expression of a general principle of recovery of sums paid but not due (see, to that effect, judgment of 28 April 2022, Gräfendorfer Geflügel- und Tiefkühlfeinkost Produktions and Others , C‑415/20, C‑419/20 and C‑427/20, EU:C:2022:306, paragraph 53 and the case-law cited).
57 By holding, in paragraph 111 of the judgment under appeal, following reasoning supporting, inter alia, the judgment in Printeos , that the Commission had infringed the first paragraph of Article 266 TFEU by refusing to pay interest to Deutsche Telekom on the amount of the fine unduly collected in respect of the relevant period, the General Court did not therefore err in law. It merely reaffirmed, as did the judgment in Printeos , the principles, recalled in paragraphs 51 to 56 above, stemming from settled case-law, to which there is no need to return.
58 It should be noted in that context that, contrary to what the Commission maintains, the compensation which the General Court ordered it to pay to Deutsche Telekom in the judgment under appeal does not constitute ‘punitive default interest’. Before the date of delivery of the 2018 judgment in Deutsche Telekom , the Commission was in no way obliged to repay the amount of the fine to Deutsche Telekom, whether in whole or in part, having regard, first, to the enforceability of Commission decisions which impose a pecuniary obligation on persons other than Member States, next, to the absence of suspensory effect, under Article 278 TFEU, of actions brought before a Court of the European Union and, finally, to the presumption of validity enjoyed by Commission decisions until such time as they are annulled or withdrawn (see, to that effect, judgment of 17 June 2010, Lafarge v Commission , C‑413/08 P, EU:C:2010:346, paragraph 81 and the case-law cited). Accordingly, it was only from that date that the Commission bore an obligation to repay and, in the absence of immediate repayment of the amount of the fine unduly collected, could have been regarded as being late in fulfilling that obligation. In the present case, however, it is common ground between the parties that, after the delivery of the 2018 judgment in Deutsche Telekom , the Commission repaid Deutsche Telekom the amount of the fine unduly collected.
59 It is true that, like the case-law on which it relied, the General Court, in the judgment under appeal, described on a number of occasions the interest payable by the Commission in the present case as ‘default interest’, a concept which refers to the existence of a delay in payment by a debtor and to an intention to penalise that debtor.
60 However, such a description, although questionable having regard to the purpose of the interest concerned, is not such as to call into question the validity, in the light of the principles referred to in paragraphs 51 to 56 above, of the reasoning on the basis of which the General Court held that the Commission was required to pay interest upon repayment of the amount unduly collected, with a view to compensating the undertaking in question at a standard rate for the loss of enjoyment of that amount.
61 As regards the fact, highlighted by the Commission, that the interest which the General Court ordered it to pay in the judgment under appeal relates to the period from the date of provisional payment of the fine until the date of repayment of the amount unduly collected following the judgment reducing that fine and that it thus concerns a period which largely predates that judgment, this is the consequence of the ex tunc effect of such a judgment and of the Commission’s obligation, arising from the first paragraph of Article 266 TFEU, to comply with that judgment by placing the undertaking concerned in the situation in which it would have been had it not been deprived, throughout that period, of the benefit of the sum corresponding to the amount unduly collected. In that regard, it is common ground, in view of the right of action available against any Commission decision imposing a fine, that, where the fine has been paid provisionally by the undertaking concerned, the Commission may, where appropriate, be required to take the measures to comply with a judgment annulling such a decision in whole or in part, as set out in paragraphs 51 to 53 above.
62 Similarly, the Commission’s argument that, in the present case, there was neither a sufficiently serious breach of a rule of law nor sufficient proof of harm suffered by Deutsche Telekom cannot succeed. Where it is obliged, under the first paragraph of Article 266 TFEU, to repay a given sum of money together with interest, the Commission has no discretion as to whether it is appropriate to pay that interest, so that the mere infringement of EU law, consisting in the refusal to pay that interest, is 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 (see, to that effect, the judgment in Printeos , paragraphs 103 and 104). In the present case, the Commission was required, in accordance with that provision, following the 2018 judgment in Deutsche Telekom , to repay the amount of the fine unduly collected together with interest, as the General Court correctly held in paragraph 112 of the judgment under appeal. Furthermore, since that interest is ‘at a standard rate’, as is apparent from the case-law referred to in paragraph 52 above, the Commission cannot escape that obligation on the ground that Deutsche Telekom has not sufficiently proved the existence of harm.
63 In those circumstances, the first, second, fourth and fifth parts of the first ground of appeal must be rejected.
64 Similarly, the General Court did not err in law in rejecting the Commission’s arguments based on the provisions of Article 90 of Delegated Regulation No 1268/2012. As was rightly pointed out in paragraph 98 of the judgment under appeal, when the amount of ‘interest yielded’ within the meaning of Article 90(4) of that delegated regulation is lower than that of the interest payable under the obligation to pay compensation at a standard rate, or even where no interest is yielded since the return on the capital invested was negative, the Commission is nevertheless required, under the first paragraph of Article 266 TFEU, to pay to the party concerned the difference between the amount of any ‘interest yielded’, within the meaning of Article 90(4) of that delegated regulation, and the amount of interest owed for the period from the date of payment of the amount in question to the date of its repayment (see, to that effect, the judgment in Printeos , paragraphs 75 and 76).
65 In that regard, as the Commission itself noted and as the Advocate General also highlighted in point 77 of his Opinion, that institution’s obligation arising from Article 90(4) of Delegated Regulation No 1268/2012 to pay to the undertaking concerned the ‘interest yielded’ is intended above all to avoid the unjust enrichment of the European Union. That potential obligation is, however, without prejudice to the Commission’s obligation, in any event, under the first paragraph of Article 266 TFEU, to compensate that undertaking at a standard rate for loss of enjoyment resulting from the transfer to the Commission of the sum of money corresponding to the amount of the fine unduly paid, including where the investment of the amount of the fine provisionally paid by that undertaking has not yielded a return higher than the ECB refinancing rate increased by 3.5 percentage points.
66 Furthermore, while it is true that, in accordance with Article 90(2) of Delegated Regulation No 1268/2012, the Commission must secure the provisionally cashed amounts by having them invested in financial assets, thus ensuring the security and liquidity of the monies whilst also aiming at yielding a positive return, it is also apparent from that provision that the undertaking which provisionally paid the fine imposed on it has no influence on the conditions under which the amount of that fine is invested. The Commission has failed to explain why, in such circumstances, the risks to which such investments are exposed should be borne by the undertaking which provisionally paid the fine imposed on the basis of a partially or wholly unlawful act.
67 Accordingly, the third part of the first ground of appeal must be rejected.
68 As regards the Commission’s line of argument that the requirement for it to pay interest from the date of provisional receipt of the fine undermines the deterrent effect of fines, the Court endorses the considerations set out by the General Court in paragraphs 93 and 94 of the judgment under appeal, according to which the deterrent function of fines must be reconciled with the requirements of effective judicial protection. Those requirements imply that, in the event of annulment or reduction by a judgment of a Court of the European Union of a fine provisionally paid by the undertaking in question, that undertaking is to receive, in view of both the first paragraph of Article 266 TFEU and the ex tunc effect of such a judgment, compensation at a standard rate for the loss of enjoyment of the sum corresponding to the amount unduly collected by the Commission for the period between the date of that provisional payment and the date on which that sum is repaid by that institution. In any event, the deterrent effect of the fines cannot be relied on in the context of fines that have been annulled or reduced by a Court of the European Union, since the Commission cannot rely on an act declared to be unlawful for the purposes of deterrence.
69 In those circumstances, the sixth part of the first ground of appeal must also be rejected.
70 In the light of the foregoing, the Commission’s first ground of appeal must be dismissed as unfounded. The second ground of appeal Arguments of the parties
71 By its second ground of appeal, the Commission submits that the General Court erred in law by holding in paragraphs 114 to 138 of the judgment under appeal that the rate applicable to interest which the Commission is required to pay is, by analogy with Article 83(2)(b) of Delegated Regulation No 1268/2012, at the ECB refinancing rate increased by 3.5 percentage points.
72 The Commission recalls that the Court of Justice held, in the 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 56), that, in order to determine the interest payable following the annulment of a fine, it was necessary to apply the rate set by the provisions of Delegated Regulation No 1268/2012, without, however, identifying the precise provision of that delegated regulation to which reference should be made.
73 However, the judgment in Printeos , to which paragraph 121 of the judgment under appeal refers, interpreted the 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), as meaning that the latter judgment referred to Article 83 of that delegated regulation. The General Court inferred from this, in paragraphs 133 and 134 of the judgment under appeal, that it was necessary to apply, by analogy, Article 83(2)(b) of that delegated regulation, which requires the payment of interest at the ECB refinancing rate increased by 3.5 percentage points.
74 According to the Commission, first, such an application by analogy is not justified, since Article 83 of Delegated Regulation No 1268/2012 governs the default interest payable by the Commission’s debtors in the event of late payment by laying down a specific procedure for that purpose.
75 Secondly, it cannot be inferred from the judgment in Printeos that the Court of Justice, which ruled on the calculation of compound interest, wished to apply, by analogy, the rate referred to in Article 83(2)(b) of Delegated Regulation No 1268/2012 for the calculation of default interest. Moreover, neither the General Court in its judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), nor the Court of Justice ruling on the appeal in that case in the judgment in Printeos awarded default interest at the rate laid down by that provision.
76 If, however, the Court were to find that an interest rate laid down in Article 83 of Delegated Regulation No 1268/2012 must be applied, the Commission submits that, unless another appropriate interest rate is set, it is necessary to adopt, by analogy with Article 83(4) of that delegated regulation, the ECB refinancing rate increased by 1.5 percentage points, applied by the Commission in the event that the addressee of a decision imposing a fine provides a bank guarantee instead of provisionally paying that fine. That situation is sufficiently comparable to the one in the present case because, in both cases, the interest offsets the fact that it is impossible for the Commission, in the first case, and for the undertaking concerned, in the second, to make use of the amount of the fine freely for the duration of the judicial proceedings.
77 Deutsche Telekom disputes the Commission’s arguments and contends that the second ground of appeal must be dismissed. Assessment of the Court
78 It is apparent from the case-law of the Court of Justice that, in order to determine the amount of the default interest that must be paid to an undertaking which paid a fine imposed by the Commission, following the annulment or reduction of that fine, the Commission must apply the rate set for that purpose by Delegated Regulation No 1268/2012 (see, to that effect, 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 56). The Court has also stated that it is not a reference to Article 90 of that delegated regulation, which does not mention any specific interest rate, but to Article 83 of that delegated regulation, which sets the interest rate for amounts receivable not repaid on the deadline (see, to that effect, the judgment in Printeos , paragraph 81).
79 Article 83 of Delegated Regulation No 1268/2012, which contained the rules for the application of the 2012 Financial Regulation then in force, provided for several interest rates for that purpose, all of which corresponded to the ECB refinancing rate increased by various percentage points. In accordance with Article 83(2)(a) and (b) of that delegated regulation, the increase was, respectively, 8 percentage points where the obligating event was a public supply and service contract, and 3.5 percentage points in all other cases. In addition, where the debtor had provided a financial guarantee which was accepted by the accounting officer instead of payment of a fine, Article 83(4) of that delegated regulation provided for an increase of 1.5 percentage points.
80 In the present case, the General Court applied neither of the two interest rates relating to the specific cases referred to, respectively, in Article 83(2)(a) and (4) of Delegated Regulation No 1268/2012. It adopted the rate laid down, on a supplementary basis, in Article 83(2)(b) of that delegated regulation for ‘all other cases’.
81 Thus, in paragraph 136 of the judgment under appeal, for the purposes of setting Deutsche Telekom’s compensation at a standard rate for the loss of enjoyment of its funds, the General Court, on the basis of its analysis in paragraphs 125 to 135 of that judgment, adopted as the applicable rate, by analogy, the rate laid down in Article 83(2)(b) of Delegated Regulation No 1268/2012, namely the ECB refinancing rate increased by 3.5 percentage points.
82 The General Court therefore awarded Deutsche Telekom, in paragraph 137 of that judgment, by way of compensation for the harm caused to it by the sufficiently serious breach of the first paragraph of Article 266 TFEU, compensation in the amount of EUR 1 750 522.83 corresponding to the loss of interest at the rate of 3.55%, during the relevant period, on the amount of the fine unduly collected.
83 It is true, as the Commission has argued, that Article 83(2)(b) of Delegated Regulation No 1268/2012 does not set the rate of interest corresponding to compensation at a standard rate such as that at issue in the present case. That provision covers the situation, unrelated to the present case, of late payment, that is to say, one in which an amount receivable is not repaid on the deadline provided for. It is precisely the fact that neither Article 83 nor any other provision of that delegated regulation set that rate which led the General Court, in the exercise of its discretion, to apply ‘by analogy’ Article 83(2)(b) of that delegated regulation.
84 It does not, however, follow that, by applying the rate set by that provision, which, moreover, does not appear unreasonable or disproportionate in the light of the purpose of the interest at issue, the General Court erred in law in the exercise of the jurisdiction conferred on it in proceedings seeking to establish the non-contractual liability of the European Union.
85 In that regard, it must be pointed out that, where the amount of the fine which the Commission had imposed on Deutsche Telekom, and which that undertaking had provisionally paid to it, was reduced by the General Court, the Commission cannot be placed in a more favourable position than that in which Deutsche Telekom would have found itself if its action had been dismissed after having chosen, rather than making such a provisional payment, to provide a bank guarantee pending the outcome of the legal proceedings initiated by its action. In the latter situation, Deutsche Telekom would have been exposed to interest calculated at the rate of 1.55%, in accordance with Article 83(4) of Delegated Regulation No 1268/2012, in addition to the costs of providing that bank guarantee.
86 For those reasons, the Court of Justice cannot accept the Commission’s argument, in the alternative, that the amount of interest payable to Deutsche Telekom should be capped at that rate of 1.55%.
87 In addition, as the General Court correctly stated in paragraphs 127 and 131 of the judgment under appeal, the situation of an undertaking which, while having brought an action against the Commission’s decision to impose a fine on it, paid that fine on a provisional basis differs from that of an undertaking providing a bank guarantee pending the exhaustion of legal remedies. Where an undertaking has provided a bank guarantee and has consequently benefited from a suspension of payment, it has not, unlike an undertaking which provisionally paid the fine, transferred to the Commission the sum of money corresponding to the amount of the fine imposed, so that the Commission may not be required to repay to it an amount unduly collected. The only financial loss that may have been sustained by the undertaking concerned is the consequence of its own decision to provide a bank guarantee.
88 Lastly, while it is true that, as the Commission stated, the Court of Justice did not, in the judgment in Printeos , award interest at the ECB refinancing rate increased by 3.5 percentage points on the amount of the fine to be repaid, that was because the applicant at first instance, in the case giving rise to that judgment, sought, in relation to such an amount, only the application of the ECB refinancing rate increased by 2 percentage points.
89 It should also be highlighted that, if the Commission were to consider that the current regulatory provisions do not adequately take into account a situation such as that giving rise to the present case, it would be for the Commission or, as the case may be, the EU legislature to make the necessary adjustments in the interests of legal certainty and the predictability of the Commission’s action.
90 That being so, having regard to the fact that the Commission’s obligation to repay a fine annulled in whole or in part by a Court of the European Union together with interest stems from the first paragraph of Article 266 TFEU, any new method or mechanism for calculating that interest must comply with the objectives pursued by such interest. Consequently, the rate applicable to that interest cannot be limited to compensating for the depreciation in the value of money which occurred during the period in respect of which interest must be paid, without covering the compensation at a standard rate to which the undertaking that paid that fine is entitled by reason of the fact that it was deprived for a certain period of time of the use of the funds corresponding to the amount unduly collected by the Commission.
91 In the light of the foregoing, it must be held that the General Court did not err in law when it set the compensation, at a standard rate, for Deutsche Telekom by applying, by analogy, in view of the purpose of the interest at issue and the obligation imposed on it to make good the harm suffered by Deutsche Telekom, the interest rate laid down in Article 83(2)(b) of Delegated Regulation No 1268/2012. Accordingly, the second ground of appeal must also be rejected.
92 Since none of the grounds of appeal relied upon by the Commission in support of its appeal has been upheld, the appeal must be dismissed in its entirety. Costs
93 In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs.
94 Under Article 138(1) of those rules, applicable to the procedure on appeal by reason of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
95 Since the Commission has been unsuccessful and Deutsche Telekom has applied for an order for costs, the Commission must be ordered to pay the costs. On those grounds, the Court (Grand Chamber) hereby: 1. Dismisses the appeal; 2. Orders the European Commission to pay the costs. [Signatures] * Language of the case: German.