7.11.2022

EN

Official Journal of the European Union

C 424/46

(Case T-582/22)

(2022/C 424/59)

Language of the case: English

Parties

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

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—order the Commission to pay forthwith the default interest amount, corresponding to default interest in the amount of EUR 3 382 129,97 at the ECB refinancing rate plus 3,5 % for the period from 19 June 2017 to 25 May 2022 or, alternatively, at such a rate and over such a period the Court sees fit (under the applicant’s first and/or second pleas in law);

—order the Commission to pay forthwith compound interest on the default interest amount of EUR 3 382 129,97 (or such other amount as the Court determines is owing to the applicant), corresponding to the ECB refinancing rate plus 3,5 % for the period from 25 May 2022 to the date of payment of such a default interest amount or, alternatively, at such a rate and over such a period the Court sees fit;

—further or in the alternative, annul the Commission’s refusal decision dated 7 July 2022, in consequence of which the Commission must pay to the applicant default interest and compound interest thereon with immediate effect; or in the further alternative, declare that the Commission’s failure to act by not paying default interest and compound interest thereon (or any interest) is unlawful; and

—order the Commission to pay the applicant’s legal and other expenses in respect of these proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

1.First plea in law, alleging that the applicant is entitled to recover the default interest amount of EUR 3 382 129,97, or alternatively interest calculated for such period and at such rate as the Court shall think fit, by an action under the first paragraph of Article 266 TFEU, on the basis that the Commission was obliged to pay such interest in order to comply with the judgment of the General Court in Case T-341/17. In this regard, the applicant relies in the alternative on Article 277 TFEU, in the event that the Commission seeks to rely on secondary legislation and such legislation is interpreted in a manner that is inconsistent with the applicant’s Treaty rights.

2.Second plea in law, alleging that the applicant is entitled, further and/or in the alternative, to recover such default interest by an action under the second paragraph of Article 266, Article 268 and Article 340 TFEU and under Article 41(3) of the Charter, on the basis of the non-contractual liability of the European Union owing to the Commission’s failure to pay such interest in compliance with the judgment of the General Court in Case T-341/17. In this regard, the applicant again relies in the alternative on Article 277 TFEU, in the event that the Commission seeks to rely on secondary legislation and such legislation is interpreted in a manner that is inconsistent with the applicant’s Treaty rights.

3.Third plea in law, alleging that the applicant is entitled to the payment of compound interest in respect of the Commission’s failure to pay such default interest, by actions brought pursuant to the first paragraph of Article 266 or, alternatively, the second paragraph thereof, Article 268 and Article 340 TFEU and under Article 41(3) of the Charter. In this regard, the applicant again relies in the alternative on Article 277 TFEU, in the event that the Commission seeks to rely on secondary legislation and such legislation is interpreted in a manner that is inconsistent with BA’s Treaty rights.

4.Further, and to the extent necessary, by relying on the forth plea in law the applicant seeks — pursuant to Article 263(4) TFEU — an annulment of the Commission’s decision of 7 July 2022 to refuse to pay default interest and compound interest thereon, based on an infringement of Article 266 TFEU and/or the general principle of EU law that EU institutions must give restitution following a judgment annulling a measure.

5.In the alternative to the fourth plea in law, by relying on the fifth plea in law the applicant seeks a declaration under Article 265 TFEU that the Commission has acted unlawfully by failing to pay to the applicant default interest and compound interest thereon after the applicant’s request for this of 8 June 2022, contrary to Article 266 TFEU and/or the general principle of EU law that EU institutions must give restitution following a judgment annulling a measure.