27 October 2023 (*1)

(Appeal – Action for annulment and for damages – Competition – Agreements, decisions and concerted practices – Market for airfreight – Decision relating to proceedings under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport – Annulment by the General Court – Repayment by the European Commission of the principal amount of the fine without interest – Claim by the appellant for interest and compound interest – Remedies – Article 266 TFEU – Failure of the Commission to take a measure necessary to comply with a judgment annulling one of its decisions – Action for damages – Second paragraph of Article 340 TFEU – Limitation period – Article 263 TFEU – Time limit for bringing proceedings – Act confirming a previous measure – Inadmissibility – Article 181 of the Rules of Procedure of the Court of Justice – Appeal in part manifestly inadmissible and in part manifestly unfounded)

In Case C‑138/23 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 6 March 2023,

British Airways plc, established in Harmondsworth (United Kingdom), represented by R. O’Donoghue, A. Lyle-Smythe, advocaten, and C. Thomas, Barrister-at-Law,

appellant,

the other party to the proceedings being:

European Commission,

defendant at first instance,

THE COURT (Tenth Chamber),

composed of Z. Csehi (Rapporteur), President of the Chamber, M. Ilešič and D. Gratsias, Judges,

Advocate General: L. Medina,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

1By its appeal, British Airways plc seeks to have set aside the order of the General Court of the European Union of 22 December 2022, British Airways v Commission (T‑480/21, EU:T:2022:863; ‘the order under appeal’), by which the General Court dismissed as inadmissible its action seeking, first, an order that the European Commission pay to it the amount of default interest and compound interest allegedly due and, secondly, annulment of the letter of 30 April 2021 (‘the letter of 30 April 2021’) and the letter of 2 July 2021 (‘the letter of 2 July 2021’), by which the Commission refused to pay it that interest.

Background to the dispute, the action before the General Court and the order under appeal

2On 9 November 2010, the Commission adopted Decision C(2010) 7694 final relating to a proceeding under Article 101 [TFEU], Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39258 – Airfreight) (‘the decision of 9 November 2010’). According to the Commission, the 21 addressees of that decision, including the appellant, had coordinated their pricing behaviour for the provision of freight services within the European Economic Area (EEA) and in Switzerland.

3Pursuant to Article 5 of the decision of 9 November 2010, a fine of EUR 104 040 000 was imposed on the appellant.

4On 24 January 2011, the appellant brought an action for annulment against the decision of 9 November 2010.

5On 14 February 2011, the appellant paid, provisionally, the full amount of the fine imposed on it in Article 5 of the decision of 9 November 2010.

6By judgment of 16 December 2015, British Airways v Commission (T‑48/11, EU:T:2015:988; ‘the annulling judgment’), the General Court annulled in its entirety Article 5 of the decision of 9 November 2010, in so far as it concerns the appellant. By contrast, the General Court annulled only in part Articles 1 to 4 of that decision, in so far as they concern the appellant, in accordance with the form of order sought by the appellant, which had not requested that Articles 1 to 4 be annulled in their entirety.

7By judgment of 14 November 2017, British Airways v Commission (C‑122/16 P, EU:C:2017:861), the Court of Justice dismissed the appeal lodged by the appellant against the annulling judgment.

8On 8 February 2016, the appellant received from the Commission an amount corresponding to the fine it had paid provisionally, plus a ‘guaranteed return’ of EUR 2 270 409.48, calculated on the basis of the performance of a specific benchmark (‘the guaranteed return’).

9By letter of 13 April 2021 (‘the letter of 13 April 2021’), the appellant requested, in essence, payment from the Commission of sums corresponding to:

– interest that it classifies as default interest within the meaning of the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39, paragraph 68), in the sum of EUR 21 074 456.27, calculated on the amounts it paid to the Commission provisionally in February 2011 at the interest rate applied by the European Central Bank (ECB) to its refinancing operations on 1 November 2010, plus 3.5 percentage points, for the period between the date on which it had paid that amount and the date on which the Commission made its repayment, plus the guaranteed return; and

– interest that it classifies as compound interest, calculated on the amount due by way of default interest, for the period between the date on which the Commission had repaid the amount of the fine provisionally paid by the applicant and the date on which the Commission paid the amount claimed by way of that default interest, at the ECB rate of interest for its refinancing operations on 1 November 2010, plus 3.5%.

10By letter of 30 April 2021, the Commission informed the appellant that it was refusing the request made in the letter of 13 April 2021, on the ground that that request was time-barred.

11By letter of 11 June 2021 (‘the letter of 11 June 2021’), the appellant repeated that request and explained why it was incorrect to consider that that request was time-barred.

12By letter of 2 July 2021, the Commission replied to the letter of 11 June 2021, informing the appellant that it took note of its arguments, but that it confirmed the position it had expressed in the letter of 30 April 2021.

13By application lodged at the Registry of the General Court on 9 August 2021, the appellant brought an action seeking, primarily, an order that the Commission pay default interest and compound interest ‘(or, alternatively, default interest)’ as claimed in the letter of 13 April 2021 and referred to in paragraph 9 above, and, in the alternative, annulment of the letters of 30 April 2021 and 2 July 2021.

14The appellant stated that it based its action, primarily, on the first paragraph of Article 266 TFEU, in the alternative, on Article 268 TFEU and the second paragraph of Article 340 TFEU and, in the further alternative, on Article 263 TFEU.

15In the first place, in paragraphs 27 to 41 of the order under appeal, the General Court set out the reasons why Article 266 TFEU could not independently form the basis of an action seeking payment of interest allegedly due as a result of the Commission’s wrongful failure to take a measure necessary to comply with a judgment annulling a measure adopted by the Commission, including in the light of Article 41(3) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

16In the second place, as regards the admissibility of the action in so far as it was based on Article 268 TFEU and the second paragraph of Article 340 TFEU, the General Court recalled, in paragraph 51 of the order under appeal, that the five-year limitation period provided for in the first sentence of the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union begins to run once the requirements governing the obligation to provide compensation for damage are satisfied and, in particular, once the damage to be made good has materialised.

17The General Court noted, in that regard, in paragraph 55 of that order, that the Commission’s alleged failure to take the necessary measures to comply with the annulling judgment materialised on 8 February 2016, when that institution repaid the applicant the principal amount of the fine, plus the guaranteed return, but without paying it the default interest allegedly due.

18Thus, the General Court held, in paragraphs 56 and 57 of that order, that the limitation period had begun to run on 8 February 2016 and that, in the absence of any act interrupting the limitation period alleged by the appellant, that period expired on 8 February 2021, that is to say, more than two months before the appellant submitted a prior request to the Commission, on 13 April 2021. The General Court concluded, in paragraph 58 of that order, that the appellant’s claim for compensation corresponding to the default interest allegedly due was time-barred to the extent that it was based on Article 268 TFEU and the second paragraph of Article 340 TFEU.

19As regards compound interest, the General Court held, in paragraph 61 of the order under appeal, that the request relating to that interest had to be classified as purely ancillary to the request relating to default interest. According to the General Court, since the latter request had been refused as inadmissible, the request relating to the compound interest also had to be refused.

20In the third place, as regards, first of all, the admissibility of the action in so far as it was based on Article 263 TFEU, the General Court recalled, in paragraph 69 of the order under appeal, that the sixth paragraph of Article 263 TFEU provided for a 2-month limitation period, which must be extended on account of distance by the single period of 10 days provided for in Article 60 of its Rules of Procedure.

21Next, the General Court noted, in paragraph 71 of that order, that it was by the letter of 30 April 2021 that the Commission had rejected the appellant’s request for repayment of interest allegedly owed to it pursuant to the annulling judgment. It found, in paragraph 72 of that order, that the application, by which the appellant had sought annulment of that letter, had been lodged at the Court Registry on 9 August 2021, that is to say, approximately one month after the expiry of the time limit for bringing proceedings.

22Last, as regards the letter of 2 July 2021, the General Court held, in paragraph 81 of that order, that that letter was a purely confirmatory act and noted that it could neither ‘start’ the time limit for bringing an action against the letter of 30 April 2021 which the applicant had let expire nor itself be the subject of an action for annulment.

23The General Court therefore dismissed the action before it as inadmissible.

Form of order sought by the appellant

24By its appeal, the appellant claims that the Court should:

– declare that the grounds of appeal are, in full or in part, admissible and that those grounds should be considered on the substance; in the alternative, refer the case back to the General Court for ‘reconsideration’ in full or in part;

– grant, in full or in part, the appeal brought against the order under appeal and set aside, in full or in part, that order; and

– order the Commission to pay the costs of the appeal proceedings and the proceedings before the General Court.

The appeal

25Under Article 181 of its Rules of Procedure, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court of Justice may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss it in whole or in part.

26It is necessary to apply that provision in the present case.

27In support of the appeal, the appellant raises four grounds of appeal, alleging, first, an error of law in that the General Court held that Article 266 TFEU did not establish an independent remedy; secondly, an error of law in that the General Court found that the action was time-barred to the extent that it was based on Article 268 TFEU and the second paragraph of Article 340 TFEU; thirdly, an error of law in that the General Court held that the application for annulment under Article 263 TFEU was inadmissible; and, fourthly, infringement of Article 41(2)(a) and Article 47 of the Charter in so far as the General Court did not hold a hearing.

The first ground of appeal, alleging an error of law in that the General Court held that Article 266 TFEU did not establish an independent remedy

The appellant’s arguments

28The appellant submits that the General Court erred in law in finding that there was no independent remedy under Article 266 TFEU for the purpose of claiming interest that it classifies as default interest within the meaning of the judgment of 20 January 2021, Commission v Printeos

(C‑301/19 P, EU:C:2021:39, paragraph 68). Furthermore, the General Court did not examine its alternative claim for ‘compound’ interest under Article 266 TFEU, in so far as it confined itself to ruling, in paragraph 43 of the order under appeal, on its alternative claim for payment of that interest, in so far as it was based on Article 268 TFEU and the second paragraph of Article 340 TFEU. The appellant also submits that it is entitled to payment of compound interest under the first paragraph of Article 266 TFEU.

29In the first place, the appellant submits that the General Court was wrong to state that Article 266 TFEU does not establish an independent remedy on the ground that the Treaties refer, restrictively, to the articles that provide the remedies which are available to persons and that Article 266 TFEU is not one of those articles. The appellant submits that the case-law cited in paragraph 29 of the order under appeal has evolved since the judgment of 21 April 2005, Holcim (Deutschland) v Commission (T‑28/03, EU:T:2005:139), in so far as it now recognises an independent action to enforce rights under Article 266 TFEU. The appellant cites, inter alia, the judgments of 12 February 2015, Commission v IPK International (C‑336/13 P, EU:C:2015:83, paragraph 29); of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39, paragraphs 66 to 68); and of 19 January 2022, Deutsche Telekom v Commission (T‑610/19, EU:T:2022:15). Such an argument is borne out by an interpretation of Article 266 TFEU that is consistent with the principles of fairness and legal certainty.

30In the second place, the appellant submits that the General Court was wrong to hold that neither the case-law nor Article 47 of the Charter altered its conclusion, whereas the independent remedy provided for in Article 266 TFEU is necessary in order to guarantee the right to an effective remedy.

31In the third place, the General Court erred in law in paragraphs 30 and 31 of the order under appeal by drawing a distinction between Article 266 TFEU (formerly Article 233 EC) and Article 34 CS, the latter being at issue in the case that gave rise to the judgment of 10 October 2001, Corus UK v Commission (T‑171/99, EU:T:2001:249). The relationship between Articles 34 CS and 40 CS is identical to that between Articles 266 TFEU and 340 TFEU, which confirms the idea that Article 266 TFEU constitutes a legal remedy distinct from that provided for in Article 340 TFEU. That is, moreover, confirmed by the wording of the second paragraph of Article 266 TFEU.

In the fourth place, the appellant submits that it is ‘artificial, and wrong’ to ask it to act on the basis of Article 340 TFEU, which amounts to requiring it to demonstrate that the Commission committed the ‘separate wrong’ of incorrectly implementing the annulling judgment in an area in which it has a discretion. In the present case, the Commission had no discretion in implementing that judgment. Lastly, the appellant maintains that the effectiveness of Article 266 TFEU and the rule of law would be ‘undermine[d]’ if the Commission could, entirely deliberately, choose not to comply with the mandatory consequences of the judgments of the EU Courts and force applicants that have been successful before them to identify a ‘separate wrong’ committed by that institution.

Findings of the Court

33Under the first paragraph of Article 266 TFEU, the institution whose act has been declared void is to be required to take the necessary measures to comply with the judgment declaring that act void.

34It is apparent from the case-law of the Court that, where amounts are received in breach of EU law, a right of restitution arises under EU law. That is the case, in particular, where the amounts were received pursuant to an EU measure declared invalid or annulled by the EU judicature. As particularly regards the annulment, by the EU judicature, of an EU measure involving payment of an amount to the European Union, the Court of Justice held that the payment of default interest constitutes a measure giving effect to a judgment annulling that 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 to encourage the debtor to comply with that judgment as soon as possible (judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraphs 66 to 68 and the case-law cited).

35That said, first, it cannot be considered that, in the judgments on which the appellant relies and which are referred to in paragraph 29 above, the Court acknowledged that the first paragraph of Article 266 TFEU established an independent remedy. As the appellant itself acknowledges, none of the cases that lead to those judgments concerned actions based solely on Article 266 TFEU, since the applicants relied on infringement of that article as a plea in law in support of their action, without basing that action on that article, as an independent remedy.

36It follows from the foregoing that, as the General Court correctly found in paragraphs 32 and 33 of the order under appeal, the judgments mentioned in paragraph 29 above do not constitute a change in the case-law since the judgment of 21 April 2005, Holcim (Deutschland) v Commission (T‑28/03, EU:T:2005:139), which allows Article 266 TFEU to be regarded as establishing an independent remedy.

37Secondly, it follows from Article 168(1)(d) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment under appeal and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed as inadmissible (judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 29).

38Thus, those requirements are not satisfied by an appeal which, without even including an argument aimed specifically at identifying the error of law which allegedly vitiates the contested decision, merely repeats or reproduces verbatim the pleas and arguments put forward before the General 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 30 May 2013, Quinn Barlo and Others v Commission, C‑70/12 P, EU:C:2013:351, paragraph 26).

39In the present case, in so far as the appellant complains that the General Court erred in finding that Article 47 of the Charter did not alter its conclusion, it must be held that the appellant does not explain precisely how the General Court erred in law when it recalled, in paragraphs 35 to 38 of that order, the settled case-law to the effect that Article 47 of the Charter is not intended to change the system of judicial review laid down by the Treaties and, particularly, the rules relating to the admissibility of direct actions brought before it, and explained that, in that system of judicial review, the obligation arising from the first paragraph of Article 266 TFEU can be implemented by means of the action for annulment referred to in Article 263 TFEU or by means of the action for failure to act referred to in Article 265 TFEU, the individual also being able to bring before the EU Courts an action for non-contractual liability under Article 268 TFEU and the second paragraph of Article 340 TFEU.

40As regards the principles of legal certainty and fairness, it should be noted that, in the appeal, the appellant also does not put forward any precise arguments in support of its claim that compliance with those principles requires recognition, in the present case, of an independent remedy based solely on Article 266 TFEU.

41Consequently, those arguments must be rejected as being manifestly inadmissible.

42Thirdly, the General Court correctly pointed out, in paragraphs 30 and 31 of the order under appeal, that the judgment of 10 October 2001, Corus UK v Commission (T‑171/99, EU:T:2001:249), did not allow a different conclusion to be drawn, even if, in that judgment, the General Court had accepted that Article 34 CS could autonomously form the basis of an action seeking compensation for the harm resulting from the Commission’s refusal to pay interest on the sum repaid pursuant to a judgment of the General Court reducing the level of a fine. Thus, the General Court did not err in law in holding that the wording of Article 34 CS corresponded only in part to that of Article 266 TFEU and that, unlike the latter, the second paragraph of Article 34 CS provided for a specific legal remedy, distinct from the one provided for by the general rule of Community liability under Article 40 CS, and which could be used only where the damage arose from a Commission decision annulled by the EU judicature.

43Fourthly, the Court held, in relation to a failure to pay interest in compliance with a judgment annulling a Commission decision, that (i) where an EU institution has only a considerably reduced, or even no, discretion, the mere infringement of EU law may be 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, and (ii) the Commission, following the annulment of a decision relating to the application of Article 101 TFEU, was required under the case-law to repay the amount of the fine provisionally paid, together with interest, and had no discretion as to whether it would be appropriate to pay such interest (see, to that effect, judgment of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraphs 102 to 104). Therefore, the appellant is wrong to claim, in essence, that, by refusing to recognise an independent remedy based solely on Article 266 TFEU, the General Court placed on the appellant the burden of proving the existence of a ‘separate wrong’ under the rules on non-contractual liability laid down in Article 340 TFEU.

44Last, as regards the complaint alleging a failure to state reasons in the order under appeal in so far as the General Court should have examined the appellant’s alternative claim for the payment of compound interest in respect of its action based on Article 266 TFEU alone, it must be held that that complaint must be rejected as manifestly unfounded, inasmuch as the General Court rightly held that Article 266 TFEU did not provide for an independent remedy.

45Consequently, the first ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.

The second ground of appeal, alleging an error of law in that the General Court held that the action, in so far as it was based on Article 268 TFEU and the second paragraph of Article 340 TFEU, was time-barred

The appellant’s arguments

46The appellant submits that the General Court erred in law by finding that its claims for payment of default and compound interest, on the basis of Article 268 TFEU and the second paragraph of Article 340 TFEU, were time-barred.

47In the first place, the appellant maintains that the Commission is in ongoing breach of its obligations, owing to its failure to pay the default interest amount and compound interest on that amount, such that the Commission’s failure to act continues to this day and is an ‘ongoing wrong’. Accordingly, the appellant maintains that it is entitled to claim the amount of that interest without being time-barred.

48Furthermore, according to the appellant, the Commission’s ongoing failure to fulfil its obligations continues to inflict additional harm on the appellant in the form of loss of use of the interest on the principal amount of the fine. The appellant is therefore entitled to receive compound interest calculated as from the date from which the Commission refused to pay the amount of that interest, that is to say 8 February 2016, until the payment of that interest, or, in the alternative, in respect of a period limited by the five-year limitation period laid down in Article 46 of the Statute of the Court of Justice of the European Union, that is to say the period of five years prior to the filing of its application before the General Court, on 9 August 2021, or, in the further alternative, in respect of the period from the date on which the claim for payment of compound interest that the appellant sent to the Commission was lodged, that is to say 13 April 2021, until the payment of that interest.

49As regards paragraph 49 of the order under appeal, the appellant submits that to allow the Commission to refuse to comply with a judgment of the EU Courts would be tantamount to that institution disregarding an ‘absolute and unconditional … obligation’.

50In the second place and in the alternative, in so far as it is considered that the five-year limitation period laid down in Article 46 of the Statute of the Court of Justice of the European Union applies to the present case, the appellant submits that the General Court erred in finding, in paragraph 56 of the order under appeal, that the limitation period began to run on 8 February 2016, that is, the day on which the Commission had repaid to it the amount of the fine paid provisionally, plus the guaranteed return. The appellant submits that since EU legislation does not set a maximum period for the Commission to fulfil its obligation to comply with the judgments of the EU Courts, a reasonable period must be taken into account, in accordance with the case-law. Accordingly, it submits that the date of 8 February 2016 is arbitrary, and that the starting point of that limitation period should be set at the date after which it is no longer reasonable for the Commission to refrain from paying the interest due. In the present case, a delay of six months, that is to say until 16 June 2016, or even eight months, that is to say until 16 August 2016, as appropriate, would not, in its view, constitute an unreasonable period. It follows that that limitation period began to run, according to the appellant, from 16 August 2016 or from 16 June 2016 and expired on 16 August 2021. In any event, the same limitation period would have been interrupted by the lodging of the application by the appellant or by the letter of 11 June 2021, which had been sent to the Commission with a view to the payment of interest.

Findings of the Court

51According to its settled case-law, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of the facts by the General Court and the legal conclusions it has drawn from them (see, inter alia, judgments of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 23, and of 20 January 2011, General Química and Others v Commission

C‑90/09 P, EU:C:2011:21, paragraph 71 and the case-law cited).

52In the present case, it is necessary to examine whether the General Court erred in law in finding that the action for damages brought by the appellant was time-barred.

53It follows from case-law of the Court of Justice that the function of the limitation period is to reconcile protection of the rights of the aggrieved person and the principle of legal certainty. The length of the limitation period was determined by taking into account, in particular, the time that the party which has allegedly suffered harm needs to gather the appropriate information for the purpose of a possible action and to verify the facts likely to provide the basis of that action (judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 33; see also, to that effect, order of 18 July 2002, Autosalone Ispra dei Fratelli Rossi v Commission, C‑136/01 P, EU:C:2002:458, paragraph 28).

54In that regard, it should be recalled that Article 46 of the Statute of the Court of Justice of the European Union, applicable to the proceedings before the General Court by virtue of the first paragraph of Article 53 thereof, provides that ‘proceedings against the Union in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto’ and that ‘the period of limitation shall be interrupted if proceedings are instituted before the Court of Justice or if prior to such proceedings an application is made by the aggrieved party to the relevant institution of the Union’. In accordance with settled case‑law, the limitation period begins to run once the requirements governing the obligation to provide compensation for damage are satisfied and, in particular, once the damage to be made good has materialised (see judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 34 and the case-law cited).

55The Court of Justice has also held, as particularly regards the annulment, by the EU judicature, of an EU measure involving payment of an amount to the European Union, that the payment of default interest constitutes a measure giving effect to a judgment annulling that 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 to encourage the debtor to comply with that judgment as soon as possible (judgments of 12 February 2015, Commission v IPK International, C‑336/13 P, EU:C:2015:83, paragraph 30, and of 20 January 2021, Commission v Printeos, C‑301/19 P, EU:C:2021:39, paragraph 68).

56In the present case, the claim for compensation brought by the appellant was based on the failure to pay the interest which was to accompany the payment of a claim which was certain as to its amount, namely the repayment of the fine imposed on the applicant by the decision of 9 November 2010, paid provisionally on 14 February 2011, which was due following the annulling judgment.

57The General Court therefore did not err in law in holding, in paragraphs 54 and 55 of the order under appeal, that the ‘event’ within the meaning of the first sentence of the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union, which gave rise to the appellant’s action for damages, consisted of the Commission’s alleged failure to pay interest under the first paragraph of Article 266 TFEU, such failure being the cause of the alleged damage that materialised on 8 February 2016, the date on which the Commission repaid to the appellant the amount of the fine, plus the guaranteed return, but without paying interest. Therefore, the General Court was fully entitled to find that, in the absence of any act stopping time from running relied on by the appellant, that limitation period had expired on 8 February 2021, that is to say, more than two months before the letter of 13 April 2021, by which the appellant made a prior request to the Commission.

58The appellant’s claim that the date on which the Commission chose to repay the amount of the fine without paying interest was arbitrary is irrelevant in that regard, since that date is objectively the date of the event giving rise to the alleged damage. However, the conditions to which the obligation to pay compensation for damage referred to in the second paragraph of Article 340 TFEU is subject and, therefore, the rules on limitation periods which govern actions relating to that compensation for that damage may be based only on strictly objective criteria (see judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 36 and the case-law cited). Furthermore, according to settled case-law, 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 (see judgments of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 37 and the case-law cited, and of 28 February 2013, Inalca and Cremonini v Commission, C‑460/09 P, EU:C:2013:111, paragraph 70).

59As regards the argument that the Commission’s obligation to pay interest to the appellant following the annulment of the decision of 9 December 2010 continues until that interest is actually paid, it must be stated that it is merely a repetition of the arguments put forward before the General Court, to which it duly responded, in paragraphs 47 to 49 of the order under appeal, explaining that that line of argument was the result of confusion between the obligation to comply with the annulling judgment, on the one hand, and the action for non-contractual liability of the European Union that can be brought in order to implement it, on the other hand, and to accept otherwise would render meaningless the first sentence of the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union, on the ground that actions to establish non-contractual liability on the part of the European Union would then never be time-barred, even if the alleged aggrieved party never brought proceedings. The appellant does not show in the appeal how the General Court erred in law in that regard. Accordingly, that argument must be dismissed as manifestly inadmissible, in accordance with the case-law referred to in paragraphs 37 and 38 above.

60In so far as the appellant’s argument seeks to challenge the analogy made by the General Court in paragraph 49 of the order under appeal with the case that gave rise to the order of 4 August 1999, Fratelli Murri v Commission (T‑106/98, EU:T:1999:163, paragraph 28), it must be rejected as manifestly unfounded. The General Court was right, in paragraph 49 of the order under appeal, in conjunction with paragraph 48 thereof, to refer to its case-law in order to point out, in essence, that the first sentence of the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union would be rendered meaningless if the alleged continuance of the obligation of the Commission to pay the appellant default interest were relevant for the purposes of assessing whether an action for damages is time-barred, with the result that actions to establish non-contractual liability on the part of the European Union would then never be time-barred, even if the alleged aggrieved party never brought proceedings.

61In the light of the considerations set out in paragraphs 56 to 60 above, it is also necessary to reject the line of argument relating to the continuous nature of the Commission’s failure to fulfil obligations as regards compound interest, that is to say, the capitalisation of the default interest allegedly due, in so far as, as the General Court noted in paragraphs 60 to 62 of the order under appeal, that compound interest is purely ancillary to the default interest.

62Consequently, the second ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.

The third ground of appeal, alleging an error of law in that the General Court held that the application for annulment under Article 263 TFEU was inadmissible

The appellant’s arguments

63The appellant submits that the General Court erred in law in treating the letter of 30 April 2021 as containing the Commission’s final decision. The General Court should have taken the letter of 30 April 2021 and the letter of 2 July 2021 into consideration together and found that the limitation period expired 2 months and 10 days after the latter date. It recalls that it sent the letter of 13 April 2021 to the Commission in the light of the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39). It states that, by the letter of 30 April 2021, the Commission replied that its application was time-barred because of the expiry of the five-year limitation period laid down in Article 46 of the Statute of the Court of Justice of the European Union, which, according to the Commission, had begun to run on 14 February 2011, the date of provisional payment of the fine by the appellant. The appellant explains that it wished to respond in good faith to the Commission’s arguments in its letter of 11 June 2021. It claims that it expected the Commission to re-examine its position.

64The appellant maintains that the General Court’s approach with regard to the time limit for bringing an action has a potential to operate contrary to public policy and to give rise to unfairness. The pre-action phase is important in order to ensure that there is cooperation and dialogue between the parties, in order to avoid, or at least narrow, disputes before the Courts of the European Union. It would be contrary to the public policy if the Commission could ‘“game” the process of pre-action cooperation’ by simply ignoring the responses given to it and thereby ‘engineer’ a confirmatory decision. The appellant submits that, when it sent its reply to the Commission, it could not predict how the Commission would react and that it would not be consistent with public policy to require potential applicants to lodge a ‘protective’ appeal pending the Commission’s response. The appellant was therefore right to treat the letter of 2 July 2021 as containing the Commission’s final decision, after asking the Commission to re-examine its previous stance in the light of the explanations provided by the appellant in the letter of 11 June 2021. It was only in the letter of 2 July 2021 that the Commission firmly and finally confirmed its position.

65In the alternative, the appellant asserts that it was pardonably confused about the proper approach to follow and that it rightly sought to dissuade the Commission from taking an incorrect course, rather than launch ‘precipitous’ annulment proceedings.

Findings of the Court

66It must be observed that, in its arguments, the appellant challenges the confirmatory nature of the letter of 2 July 2021.

67It must be borne in mind that deciding whether the contested decision was merely confirmatory of an initial decision was a determination of legal characterisation of the facts, which the Court of Justice has jurisdiction to review in an appeal. Indeed, according to the settled case-law of the Court of Justice, where the General Court has determined or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review their legal characterisation and the legal conclusions which were drawn from them (judgment of 14 October 2021, NRW. Bank v SRB, C‑662/19 P, EU:C:2021:846, paragraph 35 and the case-law cited).

68In that regard, it is settled case-law that actions for annulment, provided for under Article 263 TFEU, are available in the case of all measures adopted by the institutions of the European Union, whatever their nature or form, which are intended to have binding legal effects (judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 44 and the case-law cited). By contrast, since confirmatory and purely implementing measures do not produce such legal effects, they fall outside the scope of that article (judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 45 and the case-law cited).

69In that regard, it is important to recall that a measure is to be regarded as purely confirmatory of a previous measure if it contains no new factors as compared with the previous measure (judgments of 3 April 2014, Commission v Netherlands and ING Groep, C‑224/12 P, EU:C:2014:213, paragraph 69 and the case-law cited, and of 13 January 2022, Dragnea v Commission, C‑351/20 P, EU:C:2022:8, paragraph 49).

70In the present case, in paragraph 78 of the order under appeal, the General Court held that the appellant indicated that it put forward new arguments in the letter of 11 June 2021, without however claiming that that letter contained substantial new facts, which the General Court subsequently verified and confirmed. In paragraph 79 of that order, the General Court held that, in the letter of 2 July 2021, by which the Commission replied to the letter of 11 June 2021 and reiterated its refusal to pay the appellant the interest claimed, nor did that institution take a position on any substantial new fact, the letter of 2 July 2021 being summarised in two sentences worded as follows:

‘Thank you for [the] letter of 11 June 2021. I have taken note of your arguments but confirm my position as expressed in [the letter of 30 April 2021].’

71The General Court was therefore right to hold, in paragraph 81 of the order under appeal, that the letter of 2 July 2021 was a purely confirmatory act, which could neither ‘start’ the time limit for bringing an action against the letter of 30 April 2021 which the appellant had let expire nor itself be the subject of an action for annulment. The appellant’s explanation that it had already replied to the letter of 30 April 2021 because it hoped that the Commission would re-examine its stance already set out in the letter of 30 April 2021 cannot call those considerations into question.

72The appellant submits, in the alternative and in essence, that, in any event, that situation created confusion such as to make its error an excusable error, within the meaning of the case-law of the Court.

It must be noted that full knowledge of the finality of a decision and of the time limit for bringing an action under Article 263 TFEU does not, in itself, prevent an individual from pleading excusable error to justify his or her application being out of time since, according to settled case-law, such an error may occur, in particular, when the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally well-informed person (order of 8 November 2007, Belgium v Commission, C‑242/07 P, EU:C:2007:672, paragraph 29 and the case-law cited).

It is apparent from the arguments relied on that the appellant had understood that the Commission’s first letter was of a decision-making nature and produced binding legal effects on it such as to affect its interests. Accordingly, the fact that the appellant sought to persuade the Commission that it had committed a legal error and that that institution should amend its decision is not, in itself, such as to render the error thus made excusable, since, in the present case, that error corresponds precisely to a lack of diligence on the appellant’s part.

In the light of the foregoing considerations, the third ground of appeal must be rejected as manifestly unfounded.

The fourth ground of appeal, alleging infringement of Article 41(2)(a) and Article 47 of the Charter in so far as the General Court did not hold a hearing

The appellant’s arguments

The appellant submits, in essence, that its right to good administration, pursuant to Article 41(2)(a) of the Charter, and its right to a fair and public hearing under Article 47 of the Charter, were infringed, on the ground that the General Court dismissed its action as inadmissible without holding a hearing. In particular, the General Court based its findings on various judgments to which the appellant did not have the opportunity to respond, for example, in paragraphs 28 and 36 of the order under appeal. It follows that its fundamental right to be heard was not respected.

Findings of the Court

Under Article 130(1) of the Rules of Procedure of the General Court, a defendant applying to the General Court for a decision on inadmissibility or lack of competence without going to the substance of the case is to submit the application by a separate document within the time limit referred to in Article 81 thereof.

Article 130(7) of those rules provides that the General Court ‘shall decide on the application as soon as possible or, where special circumstances so justify, reserve its decision until it rules on the substance of the case’. It is apparent from the clear and unambiguous words of that provision that the General Court is under no duty to hold a hearing and that it has exclusive jurisdiction to decide whether to rule immediately on the objection of inadmissibility or to reserve its decision for the final judgment if special circumstances so require. The General Court has, in that regard, a wide discretion (order of 19 July 2017, Lysoform Dr. Hans Rosemann and Ecolab Deutschland v ECHA, C‑663/16 P, EU:C:2017:568, paragraph 36 and the case-law cited).

It follows that in deciding in the present case to give its decision on the single plea of inadmissibility raised by the Commission, without reserving that decision until it ruled on the substance of the case, on the ground that it had sufficient information from the documents before it, the General Court correctly applied Article 130(7) of its Rules of Procedure.

Therefore, no infringement of the appellant’s rights under Article 41(2)(a) or Article 47 of the Charter can be established.

In those circumstances, the fourth ground of appeal must be rejected as being manifestly unfounded.

It follows from all of the foregoing that the appeal must be dismissed as in part clearly inadmissible and in part manifestly unfounded.

Costs

Under Article 137 of the Rules of Procedure of the Court of Justice, applicable to proceedings on appeal pursuant to Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings. Here, since the present order was adopted before the appeal was served on the defendant at first instance and, therefore, before it could have incurred costs, it is appropriate to decide that British Airways is to bear its own costs.

On those grounds, the Court (Tenth Chamber) hereby orders:

The appeal is dismissed as being in part manifestly inadmissible and in part manifestly unfounded.

British Airways plc shall bear its own costs.

Luxembourg, 27 October 2023.

Z. Csehi

Registrar

President of the Chamber

Language of the case: English.