1

By their respective appeals, the European Union, on the one hand, and Plásticos Españoles SA (ASPLA) (‘ASPLA’) and Armando Álvarez SA, on the other hand, seek annulment of the judgment of the General Court of the European Union of 17 February 2017, ASPLA and Armando Álvarez v European Union (T‑40/15, the judgment under appeal, EU:T:2017:105), by which the General Court ordered the European Union to pay ASPLA compensation in the amount of EUR 44 951.24 and pay Armando Álvarez compensation in the amount of EUR 111 042.48 for the material damage suffered by each of those companies as a result of the breach of the obligation to adjudicate within a reasonable time in the cases which gave rise to the judgments of 16 November 2011, ASPLA v Commission (T‑76/06, not published, EU:T:2011:672), and of 16 November 2011, Álvarez v Commission (T‑78/06, not published, EU:T:2011:673) (‘Cases T‑76/06 and T‑78/06’), and dismissed the action as to the remainder.

2

By applications lodged at the Registry of the General Court on 24 February 2006, on the one hand, ASPLA, and, on the other hand, Armando Álvarez, each brought an action against Commission Decision C(2005) 4634 of 30 November 2005 relating to a proceeding pursuant to Article [101 TFEU] (Case COMP/F/38.354 — Industrial bags) (‘Decision C(2005) 4634’). In their applications, they claimed, in essence, that the General Court should annul that decision in so far as it applied to them or, in the alternative, reduce the amount of the fine which had been imposed on them.

3

By judgments of 16 November 2011, ASPLA v Commission (T‑76/06, not published, EU:T:2011:672), and of 16 November 2011, Álvarez v Commission (T‑78/06, not published, EU:T:2011:673), the General Court dismissed those actions.

4

By applications lodged on 24 January 2012, ASPLA and Armando Álvarez brought appeals against the judgments of 16 November 2011, ASPLA v Commission (T‑76/06, not published, EU:T:2011:672), and Álvarez v Commission (T‑78/06, not published, EU:T:2011:673).

5

By its judgments of 22 May 2014, ASPLA v Commission (C‑35/12 P, EU:C:2014:348), and Armando Álvarez v Commission (C‑36/12 P, EU:C:2014:349), the Court of Justice dismissed those appeals.

6

By application lodged at the Registry of the General Court on 27 January 2015, ASPLA and Armando Álvarez brought an action under Article 268 TFEU against the European Union, represented by the Court of Justice of the European Union or by the European Commission, for compensation for the damage that those companies claim to have suffered as a result of the excessive duration of the proceedings, before the General Court, in Cases T‑76/06 and T‑78/06.

7

By order of 4 March 2016, ASPLA and Armando Álvarez v European Union (T‑40/15, not published, EU:T:2016:133), the Commission was removed from the present case as a representative of the European Union, following the applicants’ partial withdrawal from the proceedings.

8

By the judgment under appeal, the General Court:

9

By its appeal in Case C‑174/17 P, the European Union claims that the Court should:

10

ASPLA and Armando Álvarez contend that the Court should:

11

The Commission contends that the Court should uphold the appeal in its entirety.

12

By their appeal in Case C‑222/17 P, ASPLA and Armando Álvarez claim that the Court should:

13

The European Union contends that the Court of Justice should:

14

By decision of the President of the First Chamber of 17 April 2018, Cases C‑174/17 P and C‑222/17 P were joined for the purposes of the Opinion and the judgment.

15

In support of its appeal in Case C‑174/17 P, the European Union raises two grounds of appeal.

16

In support of their appeal in Case C‑222/17 P, ASPLA and Armando Álvarez put forward five grounds of appeal.

17

By its first ground of appeal, the European Union submits that, by finding that there is a sufficiently direct causal link between the breach of the obligation to adjudicate within a reasonable time in Cases T‑76/06 and T‑78/06 and the loss sustained by ASPLA and Armando Álvarez as a result of paying bank guarantee charges during the period by which that time was exceeded, the General Court erred in law by misinterpreting the notion of ‘causal link’.

18

In particular, the European Union submits that the General Court relied on the erroneous premiss that the decision to provide a bank guarantee is made at a single point in time, namely at the time of the ‘initial decision’ to provide that guarantee. However, since the obligation to pay the fine existed throughout the proceedings before the Courts of the European Union, and even beyond that period, since the fine was not annulled, the applicants at first instance had the possibility of paying the fine and thus complying with their obligation in this regard. Since the applicants at first instance had the possibility of paying the fine at any time, their own decision to replace that payment by a bank guarantee is a continuous decision, which they have maintained throughout the proceedings. Accordingly, the determining cause of the payment of the bank guarantee charges lies in their own decision not to pay the fine and to replace that payment by a bank guarantee, and not in the breach of the obligation to adjudicate within a reasonable time.

19

The Commission supports the arguments put forward by the European Union.

20

ASPLA and Armando Álvarez contend that the General Court did not err in law in paragraphs 110 to 119 of the judgment under appeal, and maintain that the determining cause of the payment of the bank guarantee charges lies not in their ‘own decision’, as the European Union, represented by the Court of Justice of the European Union appears to claim, but is the consequence of the implementation of Article 85 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1).

21

In that regard, the respondents observe, first, that the language of that provision does not imply that the possibility of guaranteeing payment is designed as an exception to the general rule, but that, in order to request additional time for payment, two conditions must necessarily be fulfilled, namely (i) guarantee payment and (ii) pay interest. Second, the options of paying immediately or providing a bank guarantee are equally available to applicants, with the result that choosing the second option cannot consequently imply that the causal link between the damage and the illegality has been broken. Third, the choices arising from a provision of EU law offering the individual an alternative by expressly providing for it cannot break the causal link.

22

ASPLA and Armando Álvarez thus contend that this ground of appeal should be rejected.

23

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 (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).

24

It is therefore necessary to ascertain whether the breach of the obligation to adjudicate within a reasonable time in Cases T‑76/06 and T‑78/06 is the determining cause of the damage resulting from the payment of bank guarantee charges during the period by which that time was exceeded in order to establish the existence of a direct relationship of cause and effect between the conduct alleged against the Court of Justice of the European Union and the damage complained of.

25

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).

26

However, the General Court found, in paragraph 112 of the judgment under appeal, that the facts in question differ substantially from those established in that case-law, with the result that the link between the fact that the reasonable time for adjudicating in Cases T‑76/06 and T‑78/06 was exceeded and the payment of bank guarantee charges during that excess period cannot have been severed by ASPLA’s and Armando Álvarez’s initial decision not to effect immediate payment of the fine imposed by Decision C(2005) 4634 and to provide a bank guarantee.

27

In particular, as is apparent from paragraphs 110 and 111 of the judgment under appeal, the two circumstances on which the General Court relied in reaching the conclusion set out in in paragraph 112 of that judgment are (i) that at the time when ASPLA and Armando Álvarez provided a bank guarantee, the breach of the obligation to adjudicate within a reasonable time was unforeseeable and that those companies could legitimately expect those actions to be dealt with within a reasonable time, and (ii) that the reasonable time for adjudicating was exceeded after ASPLA’s and Armando Álvarez’s initial decision to provide that guarantee.

28

However, the two circumstances referred to by the General Court in paragraphs 110 and 111 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 Cases T‑76/06 and T‑78/06, and the damage suffered by ASPLA and Armando Álvarez 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 those undertakings to provide that guarantee.

29

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).

30

As the Advocate General noted in points 37, 50 and 51 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).

31

In this case, given that (i) the opening of the oral part of the proceedings in Cases T‑76/06 and T‑78/06 was on 23 November 2010, as is apparent from the findings made by the General Court in paragraph 65 of the judgment under appeal, and that (ii), as is apparent from their application at first instance, ASPLA and Armando Álvarez took the view that the opening of the oral proceedings should have taken place at the latest by February 2009 as regards Case T‑76/06, and by October 2008 as regards Case T‑78/06, it must be held that, from those times onwards, ASPLA and Armando Álvarez could not have been unaware that the duration of the proceedings in those cases would considerably exceed that which they had initially envisaged, and that those companies could have reconsidered the appropriateness of maintaining the bank guarantee, having regard to the extra costs that maintaining that guarantee might entail.

32

In those circumstances, the breach of the obligation to adjudicate within a reasonable time in Cases T‑76/06 and T‑78/06 cannot be the determining cause of the damage suffered by ASPLA and Armando Álvarez as a result of paying bank guarantee charges during the period by which that time was exceeded. As the Advocate General noted in point 58 of his Opinion, such damage is the consequence of ASPLA’s and Armando Álvarez’s own decision to maintain the bank guarantee throughout the proceedings in those cases, despite the financial consequences which that entailed.

33

It follows from the foregoing considerations that, by finding that there is a sufficiently direct causal link between the breach of the obligation to adjudicate within a reasonable time in Cases T‑76/06 and T‑78/06 and the loss sustained by ASPLA and Armando Álvarez as a result of paying bank guarantee charges during the period by which that time was exceeded, the General Court erred in law by misinterpreting the notion of ‘causal link’.

34

Consequently, since this ground of appeal must be upheld, point 1 of the operative part of the judgment under appeal must be set aside, without there being any need to rule on the second ground of appeal put forward by the European Union in support of its appeal in Case C‑174/17 P.

35

The third to fifth grounds of appeal allege, respectively, an error of law in the application of the principle of the prohibition of ruling ultra petita, breach of ASPLA’s and Armando Álvarez’s rights of defence, as well as contradictory reasoning so far as concerns the compensation period.

36

Since those grounds of appeal relate to the amount of compensation awarded by the General Court for the material damage suffered as a result of ASPLA’s and Armando Álvarez’s paying bank guarantee charges during the period by which the reasonable time for adjudicating was exceeded, and, as is apparent from paragraph 34 of this judgment, point 1 of the operative part of the judgment under appeal has been set aside, it is no longer necessary to examine those grounds of appeal.

37

By its second ground of appeal, which it is appropriate to examine before the first ground of appeal, ASPLA and Armando Álvarez submit that, by rejecting their claim for compensation for the material damage suffered as a result of paying additional default interest on the amount of the fine imposed, on the ground that they had not adduced any evidence to show that, during the period by which the reasonable time for adjudicating was exceeded, the amount of the default interest had been greater than the advantage conferred on them by possession, during that period, of the amount of the fine plus default interest, and that, accordingly, they had failed to prove that they had suffered actual and certain damage as a result of paying that interest, the General Court erred in law in the determination of the material damage suffered.

38

According to ASPLA and Armando Álvarez, that proof is not necessary to establish the existence of actual damage. The additional amount related to the fine corresponding to default interest is, in the same way as commission arising from the grant of bank guarantees, a financial cost actually borne which would not have existed without the General Court’s unlawful conduct. In that context, it would be inconsistent to classify such commission as ‘damage for which compensation may be awarded’, without requiring any proof as referred to in paragraph 37 of this judgment, and not to apply, by contrast, that classification so far as concerns the financial cost corresponding to the default interest.

39

Like the appellants, the European Union acknowledges that the judgment under appeal is inconsistent so far as concerns (i) the alleged damage stemming from payment of interest on the amount of the fine and (ii) the alleged damage stemming from the bank guarantee charges. However, unlike the appellants, the European Union takes the view that the judgment under appeal is vitiated by an error of law only in the treatment of that latter damage.

40

As a preliminary point, it should be recalled that, as the General Court noted, in paragraph 84 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).

41

In that context, it should be pointed out, as the Advocate General observes in point 65 of his Opinion, that, 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.

42

Thus, as regards the alleged damage resulting from payment of default interest on the amount of the fine during the period by which the reasonable time for adjudicating was exceeded, it is only, in fact, if the interest which has accrued during that period is greater than the advantage conferred on the appellants by possession 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 (judgment delivered today, C‑150/17 P, European Union v Kendrion, paragraph 88).

43

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).

44

In this case, the General Court stated, first of all, in paragraph 97 of the judgment under appeal, that it was Armando Álvarez which paid in full the amount of the default interest which fell due during the proceedings in Cases T‑76/06 and T‑78/06.

45

Next, in paragraph 100 of the judgment under appeal, the General Court found that, during the proceedings in Cases T‑76/06 and T‑78/06, Armando Álvarez paid neither the amount of the fine nor the default interest, with the result that, during those proceedings, Armando Álvarez was in possession of the sum corresponding to the amount of that fine plus default interest.

46

Lastly, in paragraph 101 of the judgment under appeal, the General Court held that the applicants had adduced no evidence to show that, during the period by which the reasonable time for adjudicating in Cases T‑76/06 and T‑78/06 was exceeded, the amount of the default interest that was later paid to the Commission by Armando Álvarez was greater than the advantage conferred on that company by possession of the sum equal to the amount of the fine plus default interest.

47

In those circumstances, as is apparent from 40 to 43 of this judgment, the General Court was right (i) to hold, in paragraph 102 of the judgment under appeal, that it had not been demonstrated by the appellants that, during the period by which the reasonable time for adjudicating in Cases T‑76/06 and T‑78/06 was exceeded, Armando Álvarez had suffered actual and certain damage arising from the payment of default interest on the amount of the outstanding fine, and (ii) to conclude, therefore, in paragraph 103 of the judgment under appeal, that the claim for compensation for alleged damage suffered in that respect should be rejected.

48

As to the remainder, inasmuch as the appellants claim, at the state of their appeal, that they suffered certain material damage equivalent at least to the difference between (i) the cost of deferring payment of the fine and of the payment of the corresponding default interest and (ii) the cost arising from a scenario of immediate payment of the fine possible because of financing on the credit market, their line of argument must be rejected as inadmissible, since it entails the examination of a new plea in law in the course of proceedings. According to settled case-law, to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court would in effect allow that party to bring before the Court a wider case than that heard by the General Court. In an appeal, the jurisdiction of the Court of Justice is thus confined to a review of the assessment of the General Court of the pleas and arguments debated before it (judgment of 3 July 2014, Electrabel v Commission, C‑84/13 P, not published, EU:C:2014:2040, paragraph 35 and the case-law cited).

49

Consequently, the second ground of appeal must be rejected as in part inadmissible and in part unfounded.

50

The first ground of appeal is divided into two parts.

51

By the first part of their first ground of appeal, ASPLA and Armando Álvarez complain that the General Court committed a twofold failure to state reasons when it concluded, in paragraphs 69 and 72 of the judgment under appeal, (i) that a period of 15 months between the end of the written part of the procedure and the opening of the oral part of the procedure is, in principle, an appropriate length of time for dealing with cases concerning the application of competition law and, (ii) that the parallel processing of connected cases may be a justification for extending by a period of one month for each additional connected case the interval between the end of the written part of the procedure and the opening of the oral part of that procedure, without, however, providing any justification or specific data to substantiate those conclusions.

52

By the second part of the first ground of appeal, ASPLA and Armando Álvarez complain, in the first place, that the General Court gave contradictory reasoning by holding, first of all, in paragraph 72 of the judgment under appeal, that the connection between two cases is a justification for a one-month extension, and then concluding, in paragraph 80 of the judgment under appeal, that ‘[t]he extremely close connection between Case T‑76/06 and Case T‑78/06 … justified an extension by an additional four months of the period between the end of the written part of the procedure and the opening of the oral part of the procedure in Case T‑78/06’.

53

The European Union disputes the appellants’ arguments.

54

It should be pointed out that, in their application at first instance, ASPLA and Armando Álvarez claimed, in essence, that the General Court should order the Court of Justice of the European Union to pay compensation in the amount of EUR 3495 038.66, namely EUR 355 118.67, in respect of bank guarantee charges, and EUR 3139 919.99, in respect of default interest, in order to make good the damage caused to them as a result of the breach of the obligation to adjudicate within a reasonable time, in Cases T‑76/06 and T‑78/06.

55

In point 1 of the operative part of the judgment under appeal, the General Court ordered the European Union, represented by the Court of Justice of the European Union, to pay ASPLA compensation in the amount of EUR 44 951.24, and to pay Armando Álvarez compensation in the amount of EUR 111 042.48, for the material damage suffered by each of those companies as a result of that breach. It is apparent from paragraphs 129 to 134 of the judgment under appeal that that compensation corresponds, specifically, to the bank guarantee charges incurred by those companies during the period from 16 March 2010 to 14 January 2011.

56

That said, as was stated in paragraph 34 of this judgment, the first ground of appeal in Case C‑174/17 P was upheld, with the result that point 1 of the operative part of the judgment under appeal was set aside.

57

Moreover, the second ground of appeal, in Case C‑222/17 P, which concerns the alleged material damage resulting from the payment of default interest during the period by which the reasonable time for adjudicating was exceeded in Cases T‑76/06 and T‑78/06 was rejected as unfounded in paragraph 49 of this judgment.

58

In those circumstances, as the Advocate General noted, in points 83 and 84 of his Opinion, even if the two parts of the first ground of appeal were well founded and, therefore, the General Court erred in law when determining the period by which the reasonable time for adjudicating was exceeded, that would not lead to the setting aside of the judgment under appeal or the award of higher compensation for the material damage allegedly sustained by ASPLA and Armando Álvarez, since those appellants have not alleged any damage other than that resulting from the bank guarantee charges and the interest paid on the amount of the fine.

59

Consequently, the first ground of appeal must be rejected in its entirety as unfounded.

60

It follows from all the foregoing considerations that the appeal in Case C‑222/17 P must be dismissed in its entirety.

61

In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court of Justice is to quash the decision of the General Court. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

62

In the present case, the Court considers that it should give final judgment on the action for damages brought by ASPLA and Armando Álvarez before the General Court inasmuch as it is intended to obtain compensation for the damage allegedly suffered as a result of paying bank guarantee charges beyond a reasonable time for adjudicating in Cases T‑76/06 and T‑78/06.

63

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 the 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).

64

As the General Court pointed out in paragraph 55 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).

65

For the reasons set out in paragraphs 23 to 33 of this judgment, the action for damages brought by ASPLA and Armando Álvarez, inasmuch as it is intended to obtain compensation in the amount of EUR 3495 038.66 for the material damage suffered on account of the fact that the reasonable time for adjudicating in Cases T‑76/06 and T‑78/06 was exceeded, must be rejected.

66

Under Article 184(2) of the Rules of Procedure of the Court of Justice, where an appeal is well founded and the Court of Justice itself gives final judgment in the case, it is to make a decision as to costs.

67

Under Article 138(1) of those rules, applicable to appeal proceedings by virtue 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.

68

Since the European Union has applied for costs against ASPLA and Armando Álvarez and the latter have been unsuccessful, both in the appeal in Case C‑174/17 P and in that in Case C‑222/17 P, those companies must be ordered to bear their own costs and to pay all the costs incurred by the European Union in those appeals.

69

Under Article 138(3) of the Rules of Procedure, on the one hand, the European Union, and, on the other hand, ASPLA and Armando Álvarez must be ordered to bear their own costs in relation to the proceedings at first instance.

70

Article 140(1) of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1) thereof, provides that the Member States and institutions which intervene in the proceedings are to bear their own costs. Moreover, in accordance with Article 184(4) of the Rules of Procedure, where, without having brought the appeal itself, an intervener at first instance has participated in the written or oral part of the proceedings before the Court of Justice, the latter may decide that he is to bear his own costs.

71

The Commission, which was an intervener at first instance and which participated in the written part of the proceedings of the appeal in Case C‑174/17 P, is to bear its own costs both at first instance and in the appeal in Case C‑174/17 P.

On those grounds, the Court (First Chamber) hereby: