Case T‑577/14
Gascogne Sack Deutschland GmbH
and
Gascogne
v
European Union, represented by the Court of Justice of the European Union
(Non-contractual liability - Precision of the application - Limitation of actions - Admissibility - Article 47 of the Charter of Fundamental Rights - Obligation to adjudicate within a reasonable time - Material damage - Losses incurred - Interest on the amount of the outstanding fine - Bank guarantee charges - Loss of opportunity - Non-material damage - Causal link)
Summary — Judgment of the General Court (Third Chamber, Extended Composition), 10 January 2017
Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Application for compensation for damage allegedly caused by an EU institution
(Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court, Art. 44(1)(c))
Actions for damages — Limitation period — Point from which time starts to run — Liability through infringement of the duty of the EU judicature to adjudicate within a reasonable time — Date on which the judgment in question delivered
(Art. 340, second para., TFEU; Statute of the Court of Justice, Arts 46 and 53, first para.)
Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — Cumulative conditions — One of the conditions not satisfied — Claim for compensation dismissed in its entirety
(Art. 340, second para., TFEU)
Non-contractual liability — Conditions — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Rule of law intended to confer rights on individuals — Concept — Infringement by the EU judicature of the duty to adjudicate within a reasonable time — Inclusion — Criteria for assessment
(Art. 340, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 47, second para.)
Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — Burden of proof
(Art. 340, second para., TFEU)
Competition — Administrative procedure — Commission decision finding an infringement and imposing a fine — Enforceability — Challenge to the decision before the EU judicature — Enforceability not called into question
(Arts 101 TFEU, 263 TFEU, 278 TFEU and 299, first para., TFEU)
Non-contractual liability — Conditions — Causal link — Interruption by reason of the blameworthy conduct of the applicant or others
(Art. 340, second para., TFEU)
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 — Existence of a causal link — Conditions
(Art. 340, second para., TFEU)
Actions for damages — Jurisdiction of the EU judicature — Limits — Prohibition on ruling ultra petita — Obligation to comply with the framework of the dispute defined by the parties — No possibility of the EU judicature deciding of its own motion to compensate for damage suffered during a period different from that indicated in the application
(Art. 268 TFEU; Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1))
Actions for damages — Subject-matter — Compensation for damage allegedly suffered by executives and employees of the applicant undertaking — Undertaking not authorised to take legal action on behalf of those executives and employees — Inadmissibility
(Art. 268 TFEU)
Non-contractual liability — Conditions — Actual and certain damage — Burden of proof
(Art. 340, second para., TFEU)
Non-contractual liability — Damage — Damage for which compensation available — Non-material damage caused by keeping the applicant in a state of prolonged uncertainty by reason of non-compliance with the duty to adjudicate within a reasonable time — Inclusion
(Art. 340, second para., TFEU)
Judicial proceedings — Duration of the proceedings before the General Court — Reasonable time — Dispute concerning whether there has been an infringement of the competition rules — Failure to act within a reasonable time — Consequences
(Charter of Fundamental Rights of the European Union, Art. 47, second para.)
Non-contractual liability — Damage — Compensation — Account taken of inflation — Compensatory interest and interest for delay — Rules for calculation
(Art. 340, second para., TFEU; Commission Regulation No 1268/2012, Arts 83(2)(b), and 111(4)(a))
See the text of the decision.
(see para. 25)
The limitation period begins to run once the requirements governing the obligation to provide compensation for damage referred to in the second paragraph of Article 340 TFEU are satisfied. Those conditions and, therefore, the rules on limitation periods which govern actions relating to that compensation for such damage may be based only on strictly objective criteria. Therefore, the subjective appraisal of the reality of the damage by the victim cannot be taken into consideration for the purpose of determining the moment at which the limitation period begins to run in proceedings brought against the European Union for non-contractual liability.
In the case of a compensation action seeking reparation for loss allegedly suffered by reason of failure to deliver judgment within a reasonable time, the event giving rise to the action is a procedural irregularity in the form of an alleged failure to comply with the obligation to adjudicate within a reasonable time that is incumbent on an EU court. That fact must therefore be taken into account when it comes to determining the starting point of the five-year limitation period provided for in Article 46 of the Statute of the Court of Justice of the European Union. In particular, the limitation period cannot start to run from a date on which the event giving rise to the proceedings is still ongoing and the starting point for that period must be set as a date on which the event giving rise to the proceedings has fully materialised. Thus, in the specific case of an action for damages aimed at securing compensation for damage allegedly suffered as a result of a possible failure to adjudicate within a reasonable time, the starting point for the five-year limitation period referred to in Article 46 of the Statute of the Court of Justice of the European Union must, in the event that the contested time taken to adjudicate has been brought to an end by a decision, be determined as being the date on which that decision was adopted. Such a date constitutes a definite date determined on the basis of objective criteria. It guarantees compliance with the principle of legal certainty and serves to protect the rights of the applicants.
(see paras 43-47)
See the text of the decision.
(see paras 52, 53)
For a procedure in two competition matters before the General Court to last nearly 5 years and 9 months without justification by any of the specific circumstances of those cases, which constitutes a sufficiently serious breach of a rule of EU law intended to confer rights on individuals, infringes the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union for exceeding the length of time reasonably required to give judgment.
During the period between the end of the written phase of the procedure, marked by the lodging of the rejoinder, and the opening of the oral phase of the procedure, the steps to be taken include summarising the arguments of the parties, preparing the cases, analysing the facts and law of the disputes and preparing the oral part of the procedure. Thus, the length of that period depends, in particular, on the complexity of the dispute, the conduct of the parties and supervening procedural matters.
Concerning, first, the complexity of the dispute, actions concerning the application of competition law by the Commission exhibit a greater degree of complexity than other types of case, given, in particular, the length of the contested decision, the size of the case file and the need to carry out a detailed assessment of many complex facts, which often arise over extended periods and in various places. Thus, 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. Actions brought against a single decision adopted by the Commission pursuant to EU competition law need, in principle, to be dealt with in parallel, including where those actions are not joined. The parallel processing of such actions is justified in particular by the connection between them and the need to ensure consistency in their analysis and in the response to be given to them. Thus, 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. Finally, the degree of factual, legal and procedural complexity in the case is no justification for longer proceedings in particular where, between the end of the written part of the procedure and the opening of the oral part of the procedure, the procedure has been neither interrupted nor delayed by the Court’s adoption of any measure in respect of its organisation.
Concerning the conduct of the parties and the supervening of procedural matters, the fact that the applicants requested the reopening of the oral part of the procedure cannot justify the period of 3 years and 8 months which had already elapsed since the lodging of the rejoinder.
Consequently, the fact that 46 months elapsed between the end of the written part of the procedure and the opening of the oral part of the procedure shows that there was a period of unjustified inactivity of 20 months in each of those cases.
(see paras 61, 64, 66, 67, 69, 70, 74-76, 78)
See the text of the decision.
(see paras 79, 80)
In accordance with the first paragraph of Article 299 TFEU, a decision of the Commission concerning a procedure for applying Article 101 TFEU is enforceable, since it imposes a pecuniary obligation on the addressees. Moreover, the fact that an action for annulment has been brought against that decision, pursuant to Article 263 TFEU, does not call into question the enforceability of that decision, in so far as, under Article 278 TFEU, actions brought before the Court of Justice of the European Union are not to have suspensory effect.
(see para. 102)
The condition concerning the causal link laid down by Article 340 TFEU requires that the conduct complained of be the determining cause of the damage. In other words, even in the case of a possible contribution by the institutions to the damage for which compensation is sought, that contribution might be too remote because of some responsibility resting on others, possibly the applicant.
(see para. 117)
Damage consisting in bank guarantee charges incurred by a company penalised by a Commission decision later annulled by the General Court is not the direct consequence of the unlawfulness of that decision, since that damage results from that company’s own decision to provide a bank guarantee so as not to comply with the obligation to pay the fine within the period stipulated in the contested decision. However, it is different where the procedure before the EU judicature exceeds a reasonable time for judgment, since, first, at the time the bank guarantee was provided, the breach of the obligation to adjudicate within a reasonable time was unforeseeable, the applicant being legitimately entitled to expect its action to be dealt with within a reasonable time. Secondly, the reasonable time for adjudicating was exceeded after the applicant’s initial decision to provide a bank guarantee.
It follows that there is a sufficiently strong causal link between, on the one hand, the breach by the EU judicature of the obligation to adjudicate within a reasonable time, and, on the other hand, the damage suffered by the applicant before the delivery of the judgment in question, consisting in the payment of bank guarantee charges during the period by which that reasonable time was exceeded. In that regard, payment of the bank guarantee charges after the delivery of the judgment bringing to an end the breach of the obligation to adjudicate within a reasonable time does not exhibit a sufficiently direct causal link with that breach, since the payment of such charges is the consequence of the personal and independent decision which the applicant took, after that breach, not to pay the fine, not to request suspension of the operation of the contested decision and to appeal against the aforementioned judgment.
(see paras 118-120, 130, 131)
It follows from the rules governing the procedure before the Courts of the European Union, in particular Article 21 of the Statute of the Court and Article 44(1) of the Rules of Procedure of the General Court, that the dispute is in principle determined and circumscribed by the parties and that the Courts of the European Union may not rule ultra petita. Thus, the Court cannot deviate from the applicant’s claim and decide of its own motion to make good damage suffered during a period chronologically different from that during which it claims to have suffered damage.
(see paras 136, 137)
A claim for compensation in respect of non-material damage suffered by the applicant’s executives and employees must be rejected as inadmissible where there is nothing in the documents before the Court to indicate that the applicant was authorised by its executives and employees to bring an action for damages on their behalf.
(see para. 148)
In an action for compensation, where an applicant has put forward nothing to show the existence of its non-material damage or to establish its extent, it falls to it, at the very least, to prove that the conduct of which it complains was, by reason of its gravity, such as to cause it damage of that kind.
(see para. 151)
The fact that an applicant has been put in a position of uncertainty, in particular as regards whether its action would be successful, is an inherent feature of any court proceedings. However, failure to adjudicate within a reasonable time is such as to put the applicant in a position of uncertainty greater than that normally engendered by court proceedings. That prolonged state of uncertainty inevitably has an impact on decision-making and the running of the business and therefore constitutes non-material damage.
(see paras 155-157)
Having regard to the need to ensure that the competition rules of European Union law are complied with, the Court of Justice cannot allow an appellant to reopen the question of the validity or amount of a fine, on the sole ground that there was a failure to adjudicate within a reasonable time, where all of its pleas directed against the findings concerning the amount of that fine and the conduct that it penalises have been rejected.
It follows that the failure to adjudicate within a reasonable time when examining a legal action brought against a Commission decision imposing a fine on an undertaking for infringing the competition rules of European Union law cannot lead to the annulment, in whole or in part, of the fine imposed by that decision.
(see paras 161, 162)
Where the conditions for EU non-contractual liability are fulfilled, the adverse consequences of a lapse of time between the occurrence of the actionable event and the assessment of the compensation cannot be disregarded, inasmuch as the effects of inflation must be taken into account. In that regard, compensatory interest is designed to compensate for the time that passes before the judicial assessment of the amount of damage, irrespective of any delay attributable to the debtor. The end of the period for which such monetary revaluation is available must, in principle, coincide with the date of delivery of the judgment establishing the obligation to make good the damage suffered by the applicant. Where an applicant fails to demonstrate that the adverse consequences of a lapse of time may be calculated on the basis of the rate applied by the ECB to its main refinancing operations, increased by several percentage points, the monetary depreciation linked to the passage of time is reflected by the annual rate of inflation recorded, for the period in question, by Eurostat in the Member State where the applicant is established.
(see paras 168, 169, 176)