Joined Cases C‑174/17 P and C‑222/17

European Union

v

Plásticos Españoles SA (ASPLA) and Armando Álvarez SA

(Appeal — Actions for damages — Second paragraph of Article 340 TFEU — Excessive duration of the proceedings in two cases before the General Court of the European Union — Compensation for damage allegedly suffered by the applicants — Material damage — Bank guarantee charges — Causal link — Default interest)

Summary — Judgment of the Court (First Chamber), 13 December 2018

1. Non-contractual liability — Conditions — Causal link — Burden of proof

   (Art. 340, second para., TFEU)

2. Non-contractual liability — Conditions — Causal link — Concept — Bank guarantee charges arising from the choice of an undertaking not to pay the fine imposed by the Commission — Infringement by the EU judicature of the duty to adjudicate within a reasonable time on the occasion of the action by that undertaking — No direct causal link

   (Art. 340, second para., TFEU)

3. Non-contractual liability — Conditions — Real and certain damage caused by an illegal measure — Concept — Damage resulting from the payment of default interest on account of breach by the EU judicature of a reasonable time for adjudicating — Included — Conditions

   (Art. 340, second para., TFEU)

4. Non-contractual liability — Conditions — Actual and certain damage — Burden of proof

   (Art. 340, second para., TFEU)

5. Appeal — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility

   (Statute of the Court of Justice, Art. 58)

6. Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — One of the conditions not satisfied — Claim for compensation dismissed in its entirety

   (Art. 340, second para., TFEU)

1.  See the text of the decision.

   (see para. 23)

2.  The circumstance that the EU judicature may have committed a breach of the obligation to adjudicate within a reasonable time in cases relating to the lawfulness of a fine imposed by the Commission cannot be the determining cause of the damage suffered by the undertaking which brought the action as a result of paying bank guarantee charges during the period by which that time was exceeded. 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.

   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 EU judicature 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.

   (see paras 29, 30, 32)

3.  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. In that context, since an act or omission of an EU institution may give rise to certain costs for an undertaking but, at the same time, it may result in certain gains for that undertaking, it can be considered that there is damage, within the meaning of Article 340 TFEU, only where the net difference between costs and gains stemming from the conduct alleged against that institution is negative.

   Thus, in an action for damages by which compensation is claimed for the damage resulting from payment of default interest on the amount of a fine on account of the breach by the General Court of a reasonable time for adjudicating in a case concerning the Commission’s decision imposing that fine, it is only, in fact, if the interest which has accrued during the period by which the reasonable time for adjudicating was exceeded is greater than the advantage conferred on the appellant by possession, during that period, of the sum equal to the amount of the fine plus default interest that it may be considered that there is actual and certain damage.

   (see paras 40-42)

4.  See the text of the decision.

   (see para. 43)

5.  See the text of the decision.

   (see para. 48)

6.  See the text of the decision.

   (see paras 63, 64)