1. Actions for annulment – Judgment annulling act – Effects – Judgment annulling the fine imposed on an undertaking for infringement of the competition rules or reducing the amount of the fine – Obligation to adopt measures to comply with the judgment – Scope – Repayment of the sum unduly paid and payment of default interest
(Art. 233 EC)
2. Actions for annulment – Judgment annulling act – Judgment annulling the fine imposed on an undertaking for infringement of the competition rules or reducing the amount of the fine – Disregard of the obligation to adopt measures to comply with the judgment – Legal remedies available
(Arts 232 EC, 233 EC, 235 EC and 288, second para., EC)
3. Actions for damages – Time-limits for bringing actions – Limitation period of five years – Application for damages addressed to the institutions and not followed by an action for annulment or for failure to act – No bearing
(Arts 230 EC and 232 EC; Statute of the Court of Justice, Art. 46)
1. The Commission’s obligations pursuant to Article 233 EC, regarding compliance with a judgment annulling the fine imposed on an undertaking for infringement of the competition rules or reducing the amount of that fine, include, primarily, the Commission’s obligation to repay all or part of the fine paid by the undertaking in question, in so far as that payment must be considered as a sum unduly paid following the decision to annul. That obligation applies not only to the principal amount of the fine overpaid, but also to default interest on that amount.
It follows that, in not paying any default interest on the principal amount of the fine repaid following such a judgment, the Commission has failed to take a step necessary to comply with that judgment and has disregarded, in so doing, its obligations under Article 233 EC.
(see paras 30-31)
2. The legal remedies available to the party concerned in the case of alleged disregard of the obligations imposed on the Commission by Article 233 EC, in complying with a judgment annulling a fine imposed on an undertaking for infringement of the competition rules or reducing the amount of that fine, are, according to its choice, either an action for failure to act under Article 232 EC or an action for damages under Article 235 EC and the second paragraph of Article 288 EC.
(see para. 33)
3. Article 46 of the Statute of the Court of Justice relating to the limitation periods laid down in respect of actions in matters arising from the non-contractual liability of the institutions cannot be interpreted as meaning that a person who makes a prior application to the relevant institution within the five-year time-limit which it lays down must be considered as barred if he does not bring an action for damages either within the two-month time-limit laid down in Article 230 EC where a decision rejecting the application is notified to him, or within the two-month time-limit laid down by the second paragraph of Article 232 EC where the relevant institution has not adopted a position within two months of that application.
It follows from the actual wording of the second and third sentences of Article 46 of the Statute of the Court of Justice that the intention of this provision is not to shorten the limitation period of five years, but that it is intended to protect those concerned by preventing certain periods from being taken into account in the calculation of that period. Consequently, the aim of the third sentence of Article 46 of the Statute of the Court is merely to postpone the expiration of the period of five years when proceedings instituted or a prior application made within this period cause time to start running in respect of the periods provided for in Articles 230 EC and 232 EC. In no case can the application of these provisions have the effect of cutting-down the five-year period of limitation laid down by the first sentence of Article 46 of the Statute.
(see paras 38-39)