22 December 2022 (*)

(Action for annulment and for damages – Competition – Agreements, decisions and concerted practices – Market for airfreight – Decision finding an infringement of 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 – Refusal of the Commission to pay default interest – Remedies – Limitation period – Time limit for bringing proceedings – Out of time – Act confirming a previous measure – Inadmissibility)

In Case T‑480/21,

British Airways plc, established in Harmondsworth (United Kingdom), represented by A. Lyle-Smythe and R. O’Donoghue, lawyers,

applicant,

European Commission, represented by N. Khan, P. Rossi and L. Wildpanner, acting as Agents,

defendant,

THE GENERAL COURT (First Chamber),

composed, at the time of the deliberations, of H. Kanninen (Rapporteur), President, N. Półtorak and O. Porchia, Judges,

Registrar: E. Coulon,

having regard to the written part of the procedure,

makes the following

By its action, which it states is based on Article 263 TFEU, the first paragraph of Article 266 TFEU, Article 268 TFEU and the second paragraph of Article 340 TFEU, the applicant, British Airways plc, requests the Court, first, to order the European Commission to pay it the amount of default interest and compound interest allegedly due and, second, to annul 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 the said interest.

Background to the dispute

On 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’). That decision had 21 addressees – the applicant among them – and described, in its reasons, a single and continuous infringement of Article 101 TFEU, Article 53 of the Agreement on the European Economic Area (EEA) and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport. According to those reasons, those addressees had coordinated their pricing behaviour for the provision of freight services within the EEA and in Switzerland.

Articles 1 to 4 of the decision of 9 November 2010 concerned the apportionment between the addressees of the said decision of the liability for the conduct at issue that took place. In those same provisions, the Commission held the applicant liable for that conduct in its entirety.

Article 5 of the decision of 9 November 2010 concerned fines. It read as follows in so far as it concerned the applicant:

‘For the infringements referred to in Articles 1 to 4 [of the decision of 9 November 2010], the following fines are imposed:

…

(e) British Airways plc: EUR 104 040 000;

…

The fines shall be paid in euro, within three months of the date of the notification of this decision …

After the expiry of that period, interest shall automatically be payable at the interest rate applied by the European Central Bank [(ECB)] to its main refinancing operations on the first day of the month in which [the decision of 9 November 2010] is adopted, plus 3.5 percentage points.

Where an undertaking referred to in Article 1 [of the decision of 9 November 2010] lodges an appeal, that undertaking shall cover the fine by the due date by either providing an acceptable bank guarantee or making a provisional payment of the fine in accordance with Article 85a(1) of Commission Regulation (EC, Euratom) No 2342/2002 [of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002 (OJ 2002 L 357, p. 1)].’

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

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

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

By judgment of 14 November 2017, British Airways v Commission (C‑122/16 P, EU:C:2017:861), the Court of Justice dismissed the appeal that the applicant had lodged against the judgment referred to in paragraph 7 above.

On 8 February 2016, the applicant received 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.

On 13 April 2021, the applicant sent the Commission a letter in which it requested, in essence, payment of amounts corresponding to:

–default interest 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 their repayment, plus the guaranteed return;

–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 amounts provisionally paid by the applicant and the date on which the Commission paid the amount claimed by way of default interest, at the ECB rate of interest for its refinancing operations on 1 November 2010, plus 3.5%.

On 30 April 2021, the Commission sent the applicant the letter in which it stated that it was rejecting the request of 13 April 2021, on the ground that it was time-barred.

On 11 June 2021, the applicant sent a further letter to the Commission in which it reiterated its request of 13 April 2021 and explained why it was incorrect to consider that it was time-barred.

On 2 July 2021, the Commission sent the applicant the letter in which it replied to its letter of 11 June 2021. In that document, the Commission informed the applicant that it had taken note of its arguments, but confirmed the position expressed in the letter of 30 April 2021.

Forms of order sought

The applicant claims, in essence, that the Court should:

–order the Commission to pay a sum of EUR 21 074 456.27, corresponding to default interest calculated on the principal amount of the fine unduly paid, at the rate of interest applied by the ECB to its refinancing operations on 1 November 2010, plus 3.5 percentage points, for the period between the date of provisional payment of the fine and the date on which the Commission made its repayment, or, alternatively, at such rate as the Court sees fit;

–order the Commission to pay compound interest (or, alternatively, default interest) calculated on the amount due by way of default interest or on any other amount that the Court orders the Commission to pay in accordance with the previous head of claim, for the period between the date on which the Commission reimbursed the amounts unduly paid and the date of actual payment of the amount claimed under that same head of claim, at the ECB interest rate for its refinancing operations on 1 November 2010, plus 3.5%, or, alternatively, at such rate as the Court sees fit;

–in the alternative, annul the letter of 30 April 2021 and the letter of 2 July 2021 (together referred to as ‘the contested acts’);

–order the Commission to pay the costs incurred by it.

The Commission contends that the Court should:

–dismiss the action as inadmissible;

–order the applicant to pay the costs.

In its observations on the plea of inadmissibility, the applicant claims that the Court should dismiss that plea.

Law

Under Article 130(1) and (7) of the Rules of Procedure of the General Court, the Court may give a decision on inadmissibility without going to the substance of the case, if a defendant makes an application asking it to do so.

In the present case, as the Commission has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the file, has decided to rule on that application without taking further steps in the proceedings, even though the applicant has requested that a hearing be held.

The applicant states that it bases its action, primarily, on the first paragraph of Article 266 TFEU, in the alternative, on Article 268 and the second paragraph of Article 340 TFEU and, in the further alternative, on Article 263 TFEU.

The Commission pleads that the action is inadmissible to the extent that it is based on each of those provisions.

Admissibility of the action to the extent that it is based on the first paragraph of Article 266 TFEU

The applicant claims, in essence, that the appropriate legal remedy for enforcing the Commission’s obligation to pay default interest following the annulment of the decision of 9 December 2010 is an independent direct action, based on the first paragraph of Article 266 TFEU, and not an action for non-contractual liability of the European Union, based on Article 268 and the second paragraph of Article 340 TFEU. In its view, an undertaking’s right to recover such interest cannot depend upon its ability to establish that the requirements of such liability have been satisfied.

The Commission’s obligation to pay default interest following the annulment of the decision of 9 December 2010 stems from its duty to comply with the judgments of the EU Courts. It is apparent from Article 266 TFEU itself that that duty does not fall within the non-contractual liability of the European Union referred to in Article 340 TFEU.

The Court of Justice confirmed that distinction in the judgment of 20 January 2021, Commission v Printeos (C‑301/19, EU:C:2021:39), recognising that it was necessary to distinguish between the obligation to pay default interest, based on the first paragraph of Article 266 TFEU, and the obligation to pay compensatory interest, based on Article 340 TFEU. According to the applicant, the judgment of 10 October 2001, Corus UK v Commission (T‑171/99, EU:T:2001:249), supports its analysis.

Moreover, according to the applicant, depriving it of the possibility of requiring compliance with the judgment of 16 December 2015, British Airways v Commission (T‑48/11, not published, EU:T:2015:988), would be a breach of the Charter of Fundamental Rights of the European Union (‘the Charter’). First, in view of the fundamental right to an effective judicial remedy enshrined in Article 47 of the Charter, its right to full compliance with the obligation on EU institutions to pay default interest would be meaningless if it could not be enforced directly.

Second, according to the applicant, it is contrary to the ‘restitutionary principle’ arising from Article 41(3) of the Charter that it has no remedy enabling it to be put in the position in which it would have been had the Commission not imposed an unlawful fine on it.

The Commission replies that the allegedly inadequate implementation of the judgment of 16 December 2015, British Airways v Commission (T‑48/11, not published, EU:T:2015:988), does not provide an obvious basis for bringing an action under, inter alia, Article 266 TFEU. It adds that the action is time-barred and therefore inadmissible, even if it could be based on the first paragraph of Article 266 TFEU.

In that regard, it should be recalled that the Treaties provide, restrictively, the remedies which are available to persons to rely on their rights (judgment of 21 April 2005, Holcim (Deutschland) v Commission, T‑28/03, EU:T:2005:139, paragraph 31).

In accordance with Article 256 TFEU, those are the remedies provided for in Articles 263, 265, 268, 270 and 272 TFEU. By contrast, Article 266 TFEU, which does not confer on the Court any power that would go beyond the jurisdiction expressly laid down in the Treaties (see, to that effect, judgment of 4 April 2019, ClientEarth v Commission, T‑108/17, EU:T:2019:215, paragraph 30), does not establish a remedy (see, to that effect, judgment of 15 October 2008, Camar v Commission, T‑457/04 and T‑223/05, not published, EU:T:2008:439, paragraph 49).

Article 266 TFEU cannot therefore autonomously found an action which, like the action brought by the applicant before the Court in the present case, seeks the payment of interest allegedly due as a result of the Commission’s wrongful failure to take a measure necessary to comply with an annulling judgment (see, to that effect, judgment of 21 April 2005, Holcim (Deutschland) v Commission, T‑28/03, EU:T:2005:139, paragraph 32; order of 12 December 2007, Atlantic Container Line and Others v Commission, T‑113/04, not published, EU:T:2007:377, paragraph 22; and judgment of 5 September 2014, Éditions Odile Jacob v Commission; T‑471/11, EU:T:2014:739, paragraph 71).

Contrary to what the applicant claims, the judgment of 10 October 2001, Corus UK v Commission (T‑171/99, EU:T:2001:249), does not support a different conclusion. It is true that, in that case, the Court accepted that Article 34 CS could autonomously found 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 Court reducing the level of a fine.

It is worth noting, however, that the wording of Article 34 CS corresponds only in part to that of Article 266 TFEU. Unlike that provision, the second paragraph of Article 34 CS provided for a specific legal remedy, distinct from that provided for by the general rule of Community liability under Article 40 CS, and which could be used only where the damage alleged arose from a Commission decision annulled by the EU judicature (judgment of 10 October 2001, Corus UK v Commission, T‑171/99, EU:T:2001:249, paragraphs 39 and 40; see also, to that effect, judgment of 21 April 2005, Holcim (Deutschland) v Commission, T‑28/03, EU:T:2005:139, paragraphs 38 and 39).