Guardian Europe v European Union (Non-contractual liability - Representation of the European Union - Barring of actions : Judgment) [2017] EUECJ T-673/15 (07 June 2017)

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(Non-contractual liability - Representation of the European Union - Barring of actions - Nullification of the legal effects of a decision which has become final - Precision of the application - Admissibility - Article 47 of the Charter of Fundamental Rights - Obligation to adjudicate within a reasonable time - Equal treatment - Material damage - Losses sustained - Loss of profit - Non-material damage - Causal link)

Guardian Europe Sàrl, established in Bertrange (Luxembourg), represented by F. Louis, lawyer, and C. O’Daly, Solicitor,

(1) European Commission, represented by N. Khan, A. Dawes and P. van Nuffel, acting as Agents,

(2) Court of Justice of the European Union, represented by J. Inghelram and K. Sawyer, acting as Agents,

APPLICATION on the basis of Article 268 TFEU seeking compensation for the damage allegedly sustained by the applicant because of, first, the length of the proceedings in the case giving rise to the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494), and, secondly, the infringement of the principle of equal treatment in Commission Decision C(2007) 5791 final of 28 November 2007 relating to a proceeding under Article [101 TFEU] and Article 53 of the EEA Agreement (Case COMP/39165 - Flat glass) and in the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494),

composed of S. Papasavvas, President, I. Labucka, E. Bieliūnas (Rapporteur), V. Kreuschitz and I.S. Forrester, Judges,

having regard to the written part of the procedure and further to the hearing on 11 January 2017,

1 By application lodged at the General Court Registry on 12 February 2008, Guardian Industries Corp. and the applicant, Guardian Europe Sàrl, brought an action against Commission Decision C(2007) 5791 final of 28 November 2007 relating to a proceeding under Article [101 TFEU] and Article 53 of the EEA Agreement (Case COMP/39165 - Flat glass) (‘Decision C(2007) 5791’). In the application, they essentially claimed that the General Court should annul that decision in part in so far as it concerned them and reduce the amount of the fine imposed on them by that decision.

2 By judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494), the General Court dismissed the action.

3 By application lodged on 10 December 2012, Guardian Industries and the applicant lodged an appeal against the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494).

4 By judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363), the Court of Justice, first, set aside the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494) in so far as that judgment had rejected the plea in law alleging infringement of the principle of non-discrimination regarding the calculation of the amount of the fine imposed jointly and severally on Guardian Industries and the applicant and had ordered those parties to pay the costs. Secondly, the Court of Justice annulled Article 2 of Decision C(2007) 5791 in so far as it set the amount of the fine imposed jointly and severally on Guardian Industries and the applicant at EUR 148 000 000. Thirdly, the Court of Justice set the amount of the fine imposed jointly and severally on Guardian Industries and the applicant on account of the infringement established in Article 1 of Decision C(2007) 5791 at EUR 103 600 000. Fourthly, the Court of Justice dismissed the appeal as to the remainder. Fifthly, it apportioned the costs.

5 By application lodged at the General Court Registry on 19 November 2015, the applicant brought the present action against the European Union, represented by the European Commission and the Court of Justice of the European Union.

6 On 17 February 2016, the General Court assigned the present case to the Third Chamber (Extended Composition).

7 The Commission and the Court of Justice of the European Union lodged a defence on 16 February 2016 and 18 February 2016, respectively.

8 On 22 April 2016, the applicant lodged a reply. The Court of Justice of the European Union and the Commission lodged a rejoinder on 25 May 2016 and 7 June 2016, respectively.

9 On 12 September 2016, the General Court determined that, in view of the subject matter of the case, in order to prepare for the hearing and to adjudicate, it had to have access to the file in the case giving rise to the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494) (‘Case T-82/08’). Thus, by way of a measure of organisation of procedure as provided for in Article 89 of the Rules of Procedure, the Court decided to place the file in Case T-82/08 in the file in the present case.

10 On 14 December 2016, the General Court requested the applicant to produce certain documents and to reply to a question. The applicant complied with those requests within the prescribed period.

11 On 16 December 2016, the Court of Justice of the European Union requested service of the file in Case T-82/08.

12 The parties presented oral argument and replied to the General Court’s oral questions at the hearing on 11 January 2017.

- order the European Union, represented by the Commission and by the Court of Justice of the European Union, to pay compensation for the damage the applicant sustained because of the General Court’s infringement of the requirements linked to the obligation to adjudicate within a reasonable time, by paying the applicant the following amounts together with interest as from 12 February 2010, at the average rate applied by the European Central Bank (ECB) at the relevant time to its main refinancing operations, increased by two percentage points:

- order the European Union, represented by the Commission and by the Court of Justice of the European Union, to pay compensation for the damage the applicant sustained because of the infringement, by the Commission and the General Court, of the principle of equal treatment, by paying the applicant the following amounts together with interest calculated at the average rate applied by the ECB at the relevant time to its main refinancing operations, increased by two percentage points:

15 The Court of Justice of the European Union contends that the General Court should:

- dismiss the claim for damages as inadmissible in so far as it concerns damage which occurred before 19 November 2010 as well as in so far as it relates to material damage for opportunity costs/loss of profit;

- dismiss, in any event, as unfounded the claim for damages in respect of both material and non-material damage;

- in the alternative, dismiss as unfounded the claim for damages in respect of material damage and award compensation for non-material damage ex aequo et bono in the maximum amount of EUR 5 000;

16 The Commission and the Court of Justice of the European Union raise several pleas of inadmissibility.

1. Admissibility of the claim for compensation based on an alleged failure to adjudicate within a reasonable time in so far as that claim is directed against the European Union, represented by the Commission

17 The Commission submits that the claim for compensation for damage sustained because of an alleged infringement of the requirements linked to the obligation to adjudicate within a reasonable time (‘the obligation to adjudicate within a reasonable time’) is inadmissible in so far as it is directed against the European Union, represented by the Commission, because in that claim the applicant makes no complaint against the Commission.

18 In that regard, it is sufficient to note that the European Union is represented by the Court of Justice of the European Union in the context of an action for damages seeking compensation for damage allegedly sustained because of a possible infringement of the requirements linked to the obligation of an EU court to adjudicate within a reasonable time (see orders of 6 January 2015, Kendrion v European Union, T-479/14, not published, EU:T:2015:2, paragraphs 14 to 19 and the case-law cited, and of 2 February 2015, Gascogne Sack Deutschland and Gascogne v European Union, T-577/14, not published, EU:T:2015:80, paragraphs 22 to 29 and the case-law cited).

19 Accordingly, the claim for compensation for the damage allegedly sustained by the applicant because of a failure to comply with the obligation to adjudicate within a reasonable time in Case T-82/08 must be dismissed as inadmissible in so far as that claim is directed against the European Union, represented by the Commission.

20 The Commission argues that the claim for compensation for damage sustained because of an alleged sufficiently serious infringement of the principle of equal treatment is inadmissible in so far as it is directed against the European Union, represented by the Commission. Under Article 46 of the Statute of the Court of Justice of the European Union, that claim is admissible only in so far as it seeks compensation for damage caused less than five years before the action in the present case was brought, that is to say, for damage caused after 19 November 2010. In so far as the applicant criticises the General Court for failing to annul, by 12 February 2010 at the latest, Decision C(2007) 5791 on the ground that that decision infringed the principle of equal treatment, it follows that, according to the applicant’s own assumptions, any alleged damage occurring after 12 February 2010 would be attributable in its entirety to the Court of Justice of the European Union.

21 The Court of Justice of the European Union contends that both claims for compensation for the alleged damage are barred in so far as they concern damage occurring before 19 November 2010. Thus, the claims for damages are inadmissible as regards periods before that date.

22 The applicant submits, as regards its claim for compensation for damage sustained because of an alleged sufficiently serious infringement of the principle of equal treatment, that its application for the annulment in part of Decision C(2007) 5791 interrupted the limitation period laid down in Article 46 of the Statute of the Court of Justice of the European Union. In addition, as regards its claim for compensation for damage sustained because of an alleged infringement of the obligation to adjudicate within a reasonable time, the applicant disputes the claims of the Court of Justice of the European Union.

23 In that regard, the General Court points out that Article 46 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court pursuant to the first paragraph of Article 53 of that statute, provides as follows:

‘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. 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 …’

24 In the present case, the applicant seeks compensation for the damage it allegedly sustained as a result of, first, the length of the proceedings in Case T-82/08 and, secondly, the infringement of the principle of equal treatment in Commission Decision C(2007) 5791 final and in the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494). The material damage allegedly sustained because of those infringements consists, first, in the payment of bank guarantee costs on the amount of the fine not paid immediately (‘the bank guarantee costs’) and, secondly, a loss of profits linked to the difference between, on the one hand, the interest repaid by the Commission on the part of the fine which the Court of Justice ultimately held not be due in the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363), and, on the other, the income the applicant might have earned if, instead of paying the Commission the sum ultimately held not to be due by the Court, it had invested that sum in its business (‘loss of profit’). In addition, the applicant seeks compensation for non-material damage consisting in damage to its reputation.

25 The General Court will examine, first, the barring of the action for compensation for the alleged damage caused by an infringement of the obligation to adjudicate within a reasonable time and, secondly, the barring of the actions for compensation for the alleged damage caused by sufficiently serious infringements of the principle of equal treatment.

(a) The barring of the action for compensation based on an alleged infringement of the obligation to adjudicate within a reasonable time

26 In the specific case of an action for damages aimed at securing compensation for damage allegedly sustained because of a 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 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. This, after all, is a definite date determined on the basis of objective criteria. It guarantees compliance with the principle of legal certainty and serves to protect the applicant’s rights (judgment of 10 January 2017, Gascogne Sack Deutschland and Gascogne v European Union, T-577/14, EU:T:2017:1, paragraph 47).

27 In the present case, the applicant seeks, by its first head of claim, compensation for the alleged damage caused by an infringement of the obligation to adjudicate within a reasonable time in Case T-82/08. That case was closed by the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494). The limitation period therefore started to run on 27 September 2012.

28 Furthermore, the applicant brought its action in the present case and therefore interrupted the limitation period on 19 November 2015, that is, before the expiry of the five-year period laid down in Article 46 of the Statute of the Court of Justice of the European Union.

29 The action brought in the present case is not, therefore, barred in so far as it claims compensation for alleged damage caused by an infringement of the obligation to adjudicate within a reasonable time in Case T-82/08.

30 In the light of all the foregoing, the General Court must dismiss the plea of inadmissibility raised by the Court of Justice of the European Union, alleging that the claim for compensation for the damage allegedly sustained as a result of an infringement of the obligation to adjudicate within a reasonable time in Case T-82/08 is barred.

(b) The barring of the actions for compensation based on alleged sufficiently serious infringements of the principle of equal treatment

31 A distinction must be drawn between the barring of the action based on an allegedly sufficiently serious infringement of the principle of equal treatment in Decision C(2007) 5791 and the barring of the action based on an allegedly sufficiently serious infringement of the principle of equal treatment in the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494).

(1) The barring of the action based on an alleged sufficiently serious infringement in Decision C(2007) 5791

32 It is apparent from the case-law that, where the liability of the European Union has its origin in a decision affecting an individual, the limitation period begins as soon as the decision has produced its effects vis-à-vis the person concerned by it. A different solution would call into question the principle of autonomy of actions, by making the procedure for an action for damages depend on the completion of an action for annulment (judgment of 19 April 2007, Holcim (Deutschland) v Commission, C-282/05 P, EU:C:2007:226, paragraph 30; see also, to that effect, judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C-469/11 P, EU:C:2012:705, paragraph 38).

33 First of all, it must be found that, as regards the material damage pleaded, the alleged damaging effects of Decision C(2007) 5791 necessarily arose vis-à-vis the applicant as soon as that decision, which imposed a fine on it, was adopted. In addition, contrary to the applicant’s submissions, the limitation period cannot have been interrupted by its application for the annulment in part of Decision C(2007) 5791. It is in fact irrelevant, as regards the starting point of the period of limitation, that the European Union’s unlawful conduct was established by a Court ruling (see, to that effect, judgment of 19 April 2007, Holcim (Deutschland) v Commission, C-282/05 P, EU:C:2007:226, paragraph 31).

34 Consequently, the applicant could have brought an action to establish the European Union’s non-contractual liability because of the Commission’s alleged infringement of the principle of equal treatment in Decision C(2007) 5791 as soon as the cause of the alleged damage became certain, that is, in the present case, as soon as the bank guarantee was provided in respect of part of the fine and as soon as the other part of the fine was paid (see, to that effect, judgment of 19 April 2007, Holcim (Deutschland) v Commission, C-282/05 P, EU:C:2007:226, paragraph 32).

35 Moreover, the limitation period started to run from when the alleged material damage in fact materialised, that is, from when in the present case the bank guarantee costs began to run and the loss of profit materialised (see, to that effect, judgment of 19 April 2007, Holcim (Deutschland) v Commission, C-282/05 P, EU:C:2007:226, paragraph 33, and of 17 July 2008, Commission v Cantina sociale di Dolianova and Others, C-51/05 P, EU:C:2008:409, paragraph 63).

36 Consequently, even if established, the material damage alleged by the applicant, consisting in the payment of bank guarantee costs and loss of profit because of an alleged sufficiently serious infringement of the principle of equal treatment by the Commission in Decision C(2007) 5791, materialised when the first bank guarantee costs were paid and when the loss of profit relied on began to arise, that is more than five years before the present action was brought.

37 Next, the material damage alleged by the applicant comprises, first, the sums it was allegedly required to pay to a bank for the grant of a guarantee and, secondly, the loss of profit mentioned in paragraph 24 above. As is apparent from the documents before the Court, the amount of the material damage alleged increased in proportion to the number of days elapsed.

38 It follows that the material damage alleged by the applicant is continuing damage.

39 Lastly, it must be borne in mind that, in the case of continuing damage, the limitation period referred to in Article 46 of the Statute of the Court of Justice of the European Union applies, with the date of the event which interrupted the limitation period as reference point, to the period preceding that date by more than five years and does not affect rights which arose during subsequent periods (judgment of 21 April 2005, Holcim (Deutschland) v Commission, T-28/03, EU:T:2005:139, paragraph 70; see, also, judgment of 16 December 2015, Chart v EEAS, T-138/14, EU:T:2015:981, paragraph 58 and the case-law cited).

40 Consequently, since the applicant brought its action in the present case and thereby interrupted the limitation period on 19 November 2015, the claim for compensation for the material damage allegedly sustained because of a sufficiently serious infringement of the principle of equal treatment in Decision C(2007) 5791 is barred in so far as it concerns material damage sustained before 19 November 2010.

41 In the second place, as regards the non-material damage alleged, which consists in damage to the applicant’s reputation, it must be pointed out that, in the application, the applicant submits that that damage arose at the date on which Decision C(2007) 5791 was adopted, that is on 28 November 2007.

42 In addition, it must be noted that although it may take different forms, damage to reputation is in general damage which recurs on a daily basis and continues as long as the alleged cause of such damage has not been brought to an end. That is the case, in particular, when the alleged damage to reputation is said to derive from a Commission decision which is initially adopted and made public by means of a press release and is subsequently published in the Official Journal of the European Union in the form of a summary.

43 It follows that the non-material damage in the form of damage to reputation which is relied on by the applicant, and stems from an alleged sufficiently serious infringement of the principle of equal treatment by the Commission in Decision C(2007) 5791, is continuing in nature.

44 Consequently, in accordance with the case-law mentioned in paragraph 39 above, the action for compensation is barred in so far as it seeks compensation for damage to reputation before 19 November 2010.

45 In the third place, the General Court must reject the Commission’s argument that, according to the applicant’s own assumptions, the alleged damage after 12 February 2010 may be imputed entirely to the Court of Justice of the European Union. First, that argument is based on a misinterpretation of the contents of the applicant’s pleadings. Secondly, before 27 September 2012, the General Court had not ruled on the legality of Decision C(2007) 5791 in the light of the principle of equal treatment.

46 Having regard to the foregoing, the action for compensation for the material and non-material damage allegedly sustained by the applicant because of a sufficiently serious infringement of the principle of equal treatment by the Commission in Decision C(2007) 5791 is barred in so far as that action concerns damage sustained before 19 November 2010.

(2) The barring of the action based an alleged sufficiently serious infringement in the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08)

47 It must be pointed out that the alleged damage caused by a sufficiently serious infringement of the principle of equal treatment in the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494), is damage necessarily occurring after the date on which that judgment was delivered.

48 Thus, since the present action for damages was brought on 19 November 2015, that action, brought less than five years after the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494), is not barred as referred to in Article 46 of the Statute of the Court of Justice of the European Union.

49 It follows that the action for compensation for the alleged damage caused by a sufficiently serious infringement of the principle of equal treatment in the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494), is not barred.

3. Pleas of inadmissibility alleging that the compensation for the loss of profits alleged would nullify the legal effects of a decision that has become final

50 The Commission and the Court of Justice of the European Union contend that the General Court should dismiss as inadmissible the applicant’s claims seeking compensation for the loss of profit mentioned in paragraph 24 above. Following the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363), the European Union has already paid the applicant interest in the amount of EUR 988 620. If the applicant considered that amount to be insufficient, it should have brought an action for annulment of the Commission’s decision of December 2014 determining the amount of interest, which it did not do.

51 The Commission also states that following the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363), it paid the applicant interest in accordance with Article 90(4) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1). That provision limits the amount of repayment to the amount of the fine not due increased by interest earned in accordance with Article 90(2) of Delegated Regulation No 1268/2012, which requires such monies to be invested prudently and thus at a relatively modest yield. However, the applicant did not challenge Article 90(4) of Delegated Regulation No 1268/2012 by means of a plea of illegality on the basis of Article 277 TFEU.

53 It must be borne in mind that, according to settled case-law, the action for damages relating to the European Union’s non-contractual liability for actions or omissions on the part of its institutions was established as an independent form of judicial remedy, having its own particular place in the system of means of redress and subject to conditions for its use formulated in the light of its specific purpose (judgments of 28 April 1971, Lütticke v Commission, 4/69, EU:C:1971:40, paragraph 6; of 12 April 1984, Unifrex v Commission and Council, 281/82, EU:C:1984:165, paragraph 11; and of 10 July 2014, Nikolaou v Court of Auditors, C-220/13 P, EU:C:2014:2057, paragraph 54).

54 In the present case, it must be stated that, in December 2014, the Commission repaid the part of the fine paid by the applicant which was definitively held not to be due by the Court of Justice in the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363). In addition, the Commission paid interest on that sum in the amount of EUR 988 620.

55 Thus, when the Commission repaid, in December 2014, the part of the fine held not to be due by the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363), together with interest, it complied with that judgment in accordance with Article 90(4) of Delegated Regulation No 1268/2012, which provides in particular that, after all legal remedies have been exhausted and where the fine or penalty has been cancelled or reduced, the amounts unduly collected together with any interest yielded must be repaid to the third party concerned.

56 However, the second paragraph of Article 266 TFEU provides, in essence, that the obligation on an institution whose act has been declared void to take the necessary measures to comply with a judgment ordering annulment must not affect any obligation which may result from the application of the second paragraph of Article 340 TFEU.

57 In addition, the General Court has found that Article 266 TFEU requires the administration to make good any further damage caused by the unlawful act annulled only if the conditions laid down in the second paragraph of Article 340 TFEU are satisfied (order of 12 December 2007, Atlantic Container Line and Others v Commission, T-113/04, not published, EU:T:2007:377, paragraph 62).

58 In the present case, the applicant, which relies, inter alia, on an alleged sufficiently serious infringement of the principle of equal treatment in Decision C(2007) 5791, argues precisely that the conditions laid down in the second paragraph of Article 340 TFEU are satisfied and that the present action is concerned with ascertaining whether this is the case.

59 In that regard, it must be pointed out that, in the first place, the applicant does not plead the illegality of the measure taken by the Commission in December 2014 by which it paid the applicant interest.

60 In the second place, the action for damages in the present case does not seek to put the applicant financially in the position it would have been in but for the measure taken by the Commission in December 2014. In other words, the present action does not seek the same result as an action for annulment brought against the December 2014 measure.

61 First, the applicant seeks compensation for the loss of profit mentioned in paragraph 24 above. It seeks, therefore, neither the repayment of the part of the fine held not to be due in the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363), nor the payment of the interest produced by that sum when it was in the Commission’s possession.

62 Secondly, annulment of the December 2014 measure could not give rise to the payment, in the applicant’s favour, of a sum equal to the loss of profit alleged and, therefore, to a sum greater than the amount of the interest repaid by the Commission.

63 Thus, it must be held that, in the present case, the applicant seeks compensation for damage which, first, is different from that stemming from a failure to comply with the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363), and which, secondly, is additional to the sums repaid by the Commission in December 2014.

64 The applicant’s claim for compensation as regards an alleged loss of profit has, consequently, neither the same object nor effect as an action for annulment brought against the measure taken by the Commission in December 2014 and cannot, therefore, be held inadmissible by virtue of misuse of powers.

65 The pleas of inadmissibility alleging that the compensation for the loss of profit alleged would nullify the effects of a decision that has become final must, therefore, be rejected.

4. The plea of inadmissibility alleging a lack of clarity and precision in the application as regards the claim for compensation for the non-material damage alleged

66 The Commission contends that the claim for compensation for the alleged non-material damage is manifestly inadmissible because the application contains only vague and unsubstantiated assertions that the fine imposed on the applicant unfairly stigmatised the latter by creating a grossly misleading impression about its involvement in the infringement of the competition rules.

67 However, the application states that the alleged stigmatisation is due to the fact that the fine imposed on the applicant by Decision C(2007) 5791 was the highest, although it was the smallest flat glass producer and its participation in the cartel was the shortest. The applicant infers from this that, between the date of adoption of Decision C(2007) 5791 and the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363) which reduced the fine imposed on it, third parties inferred that the applicant had a particular responsibility for the flat glass cartel.

68 Consequently, the application provides sufficiently clear and precise information as regards the non-material damage allegedly sustained by the applicant. That information enabled the Commission, first, to understand the applicant’s arguments and, secondly, to prepare its defence. In addition, that information also enables the General Court to rule on the action.

69 The plea of inadmissibility raised by the Commission, alleging a lack of clarity and precision in the application, as regards the claim for compensation for the non-material damage alleged, must, therefore, be rejected.

70 First, the action for compensation for the damage allegedly caused by an infringement of the obligation to adjudicate within a reasonable time in Case T-82/08 is inadmissible in so far as that action is directed against the European Union, represented by the Commission.

71 Secondly, the action for compensation for damage allegedly caused by a sufficiently serious infringement of the principle of equal treatment by the Commission in Decision C(2007) 5791 is barred in so far as it concerns the material and non-material damage allegedly sustained before 19 November 2010.

72 By contrast, the actions for compensation for damage allegedly caused by a sufficiently serious infringement of the principle of equal treatment in the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494), and by an alleged infringement of the obligation to adjudicate within a reasonable time in Case T-82/08 are not barred.

73 Thirdly, the pleas of inadmissibility alleging that the compensation for the loss of profit alleged would nullify the legal effects of a decision that has become final, and the plea of inadmissibility alleging a lack of clarity and precision in the application as regards the claim for compensation for the non-material damage alleged, must be rejected.

74 The second paragraph of Article 340 TFEU provides that, in the case of non-contractual liability, the European Union must, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.

75 According to settled case-law, it is apparent from the second paragraph of Article 340 TFEU that the non-contractual liability of the European Union and the exercise of the right to compensation for damage suffered depend on the satisfaction of a number of conditions, namely unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between that conduct and the damage complained of (judgments of 29 September 1982, Oleifici Mediterranei v EEC, 26/81, EU:C:1982:318, paragraph 16, and of 9 September 2008, FIAMM and Others v Council and Commission, C-120/06 P and C-121/06 P, EU:C:2008:476, paragraph 106).

76 If any one of those conditions is not satisfied, the entire action must be dismissed and it is unnecessary to consider the other conditions for non-contractual liability on the part of the European Union (judgment of 14 October 1999, Atlanta v European Community, C-104/97 P, EU:C:1999:498, paragraph 65; see also, to that effect, judgment of 15 September 1994, KYDEP v Council and Commission, C-146/91, EU:C:1994:329, paragraph 81). Moreover, the EU judicature is not required to examine those conditions in any particular order (judgment of 18 March 2010, Trubowest Handel and Makarov v Council and Commission, C-419/08 P, EU:C:2010:147, paragraph 42; see also, to that effect, judgment of 9 September 1999, Lucaccioni v Commission, C-257/98 P, EU:C:1999:402, paragraph 13).

77 In the present case, the applicant seeks compensation for the damage which it allegedly sustained, first, because of sufficiently serious infringements of the principle of equal treatment in Decision C(2007) 5791 and in the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494) and, secondly, because of an infringement of the obligation to adjudicate within a reasonable time in Case T-82/08.

1. The claims for compensation for damage allegedly sustained by the applicant because of sufficiently serious infringements of the principle of equal treatment in Decision C(2007) 5791 and in the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08)

78 First, the applicant notes that, in Decision C(2007) 5791, the Commission excluded internal sales of vertically integrated flat glass producers when calculating the fines imposed on those producers. In addition, the applicant states that, in the judgment of 12 November 2014 in Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363), the Court of Justice annulled Decision C(2007) 5791 for infringement of the principle of equal treatment. In those circumstances, the applicant seeks compensation for damage allegedly sustained by it as a result of a sufficiently serious infringement of the principle of equal treatment in Decision C(2007) 5791.

79 Secondly, the applicant notes that the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494) dismissed the applicant’s action brought against Decision C(2007) 5791 even though in that action it sought a reduction of the fine imposed on it owing to the discrimination resulting from the exclusion of internal sales when calculating the fine imposed on vertically integrated flat glass producers. In addition, the applicant states that, in the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363), the Court of Justice set aside the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494), for infringement of the principle of equal treatment. In those circumstances, the applicant seeks compensation for damage it allegedly sustained because of a sufficiently serious infringement of the principle of equal treatment in the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494).

(a) The claim for compensation for damage allegedly sustained because of a sufficiently serious infringement of the principle of equal treatment in Decision C(2007) 5791

80 The applicant submits that the alleged sufficiently serious infringement of the principle of equal treatment by the Commission in Decision C(2007) 5791 caused it material and non-material damage which must be compensated.

81 In that regard, it must be borne in mind that, according to settled case-law, the damage for which compensation is sought in an action to establish non-contractual liability on the part of the European Union must be actual and certain, which it is for the applicant to prove (see judgment of 9 November 2006, Agraz and Others v Commission, C-243/05 P, EU:C:2006:708, paragraph 27 and the case-law cited). It is for the latter to adduce conclusive proof as to both the existence and the extent of the damage he alleges (see judgment of 16 September 1997, Blackspur DIY and Others v Council and Commission, C-362/95 P, EU:C:1997:401, paragraph 31 and the case-law cited).

82 It is also settled case-law that the condition under the second paragraph of Article 340 TFEU relating to a causal link concerns a sufficiently direct causal nexus between the conduct of the institutions and the damage (judgments of 18 March 2010, Trubowest Handel and Makarov v Council and Commission, C-419/08 P, EU:C:2010:147, paragraph 53, and of 14 December 2005, Beamglow v Parliament and Others, T-383/00, EU:T:2005:453, paragraph 193; see also, to that effect, judgment of 4 October 1979, Dumortier and Others v Council, 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79, EU:C:1979:223, paragraph 21). It is for the applicant to prove the existence of a causal link between the conduct complained of and the injury pleaded (see judgment of 30 September 1998, Coldiretti and Others v Council and Commission, T-149/96, EU:T:1998:228, paragraph 101 and the case-law cited).

83 The merits of the applicant’s application must be examined in the light of those principles.

84 The applicant submits that the alleged sufficiently serious infringement of the principle of equal treatment in Decision C(2007) 5791 caused it two types of material damage, namely, first, damage corresponding to the payment of bank guarantee costs and, secondly, damage corresponding to the loss of profit mentioned in paragraph 24 above.

85 When the Commission served its decision C(2007) 5791 on the applicant, it informed it that if the applicant brought proceedings before the General Court or the Court of Justice, no measure for the recovery of the fine imposed in that decision would be adopted while the case was pending, provided that two conditions were met before the date on which the time limit for payment expired. In accordance with Article 86(5) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1), those two conditions were as follows: first, the debt owed to the Commission had to produce interest as from the date on which the time limit for payment expired, at the rate of 5.64%, and, secondly, a bank guarantee acceptable to the Commission covering both the debt and interest or increases in the debt had to be provided before the time limit for payment.

86 In the application it lodged in the present case, the applicant explains that Decision C(2007) 5791 ordered it to pay a fine of EUR 148 000 000. It submits that, first of all, it immediately paid the sum of EUR 111 000 000 and provided a bank guarantee to cover the balance of EUR 37 000 000. It states that, secondly, it cancelled the bank guarantee with effect from 2 August 2013 and paid the Commission the sum of EUR 37 000 000 plus default interest at the rate of 5.64%, that is, EUR 48 263 003. The applicant states that, thirdly, following the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363), which reduced the fine by EUR 44 400 000, it became apparent that the adjusted fine of EUR 103 600 000 was covered, from the outset, by payment of the sum of EUR 111 000 000. In consequence, the Commission repaid the applicant the sum of EUR 55 663 003 together with interest of EUR 988 620. The sum of EUR 55 663 003 was calculated by adding together, first, the amount paid to the Commission after cancellation of the guarantee, being EUR 48 263 003 and, secondly, the sum of EUR 7 400 000. The latter sum corresponds to the EUR 111 000 000 paid immediately, less the amount of the fine ultimately due, namely EUR 103 600 000.

87 The applicant submits that between 4 March 2008, when the bank guarantee took effect, and 2 August 2013, when the cancellation of the guarantee took effect, it paid bank guarantee costs in the total amount of EUR 1 547 000. Those costs were caused by the infringement of the principle of equal treatment. If the Commission had at the outset fixed the fine at EUR 103 600 000 in Decision C(2007) 5791, the bank guarantee would never have been necessary. Moreover, if the General Court were not to follow that line of reasoning, the applicant would in any case have to be awarded damages of EUR 1 268 935, corresponding to the bank guarantee costs paid during the period between 12 February 2010, the date on which the General Court ought to have delivered judgment in Case T-82/08, and 2 August 2013, the date on which the cancellation of the bank guarantee took effect.

89 In the present case, it must be pointed out that the applicant, which had brought an action against Decision C(2007) 5791, had the following choice: (i) to pay the fine on its becoming payable, together with default interest, should any such interest have accrued, at the rate set by the Commission in Decision C(2007) 5791, (ii) to apply for suspension of operation of the decision pursuant to Article 242 EC and Article 104 et seq. of the Rules of Procedure of the General Court of 2 May 1991, or (iii) to provide a bank guarantee as security for payment of the fine and default interest, in accordance with the conditions laid down by the Commission (see, to that effect, judgments of 14 July 1995, CB v Commission, T-275/94, EU:T:1995:141, paragraph 54, and of 21 April 2005, Holcim (Deutschland) v Commission, T-28/03, EU:T:2005:139, paragraph 122).

90 The choice of providing a bank guarantee for part of the fine imposed by Decision C(2007) 5791 and to pay the other part of that fine was left to the applicant’s discretion and was in no way obligatory. In other words, there was nothing to prevent the applicant from paying the fine in full at the expiry of the period laid down in Decision C(2007) 5791 despite having brought an action against that decision before the General Court (see, to that effect, judgment of 8 July 2008, Knauf Gips v Commission, T-52/03, not published, EU:T:2008:253, paragraph 498).

91 As is apparent from the application, the applicant decided, after Decision C(2007) 5791 was adopted, not to comply in full with its obligation to pay the fine immediately, but to provide a bank guarantee for part of the fine, in accordance with the option offered by the Commission.

92 The applicant cannot, therefore, validly maintain that the bank guarantee costs which it paid are the direct consequence of the unlawfulness of Decision C(2007) 5791. The damage which it alleges is the direct and conclusive consequence of its own decision, after Decision C(2007) 5791 had been adopted, not to comply with its obligation to pay the fine in full. If the applicant had chosen to pay the fine immediately in full, it would have avoided having to pay the bank guarantee costs on the unpaid amount of the fine (see, to that effect, judgment of 21 April 2005, Holcim (Deutschland) v Commission, T-28/03, EU:T:2005:139, paragraphs 123 and 124; orders of 12 December 2007, Atlantic Container Line and Others v Commission, T-113/04, not published, EU:T:2007:377, paragraph 38, and of 4 September 2009, Inalca and Cremonini v Commission, T-174/06, not published, EU:T:2009:306, paragraphs 91 and 92).

93 Accordingly, the existence of a sufficiently direct causal link between the alleged sufficiently serious infringement of the principle of equal treatment in Decision C(2007) 5791 and the payment of bank guarantee costs must be rejected, and there is no need to adjudicate on the Commission’s argument alleging that the applicant had contributed to its loss.

94 Consequently, the claim for compensation for the alleged material damage consisting in the payment of bank guarantee costs because of an alleged sufficiently serious infringement of the principle of equal treatment in Decision C(2007) 5791 must be rejected.

95 First of all, the applicant explains that the interest repaid by the Commission on the part of the fine ultimately held not to be due by the judgment of 12 November 2014 in Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363) amounted to EUR 988 620 for the entire period between March 2008 and November 2014.

96 Next, the applicant submits that the amount of that interest is much lower than the income it might have earned if, instead of paying the Commission the sum ultimately held not to be due by the Court of Justice, it had invested that sum in its business. In support of that contention, the applicant produces the report by an audit and consultancy firm which calculated the weighted average cost of its capital. Use of the weighted average cost of capital is based on the fact that a company must earn at least the cost of its capital, which is the minimum return that investors would require in order for them to invest in that company rather than elsewhere. Applying the average of the ranges of the applicant’s weighted average cost of capital thus defined as the sum of EUR 7 400 000 between 4 March 2008 and 27 July 2013, then as the sum of EUR 48 263 003 between 27 July 2013 and 12 November 2014, the applicant would have earned at least EUR 10 281 000. Since the interest paid by the Commission in December 2014 amounted to approximately EUR 989 000, the applicant therefore sustained a loss of profit of EUR 9 292 000.

97 Lastly, it is undeniable that if the principle of equal treatment had not been infringed in Decision C(2007) 5791, this loss of profit would have been avoided.

99 In that regard, it must be pointed out that, in the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, the General Court requested the applicant to provide documentary evidence to show that it had paid the Commission the sum of EUR 111 000 000 in March 2008 and the sum of EUR 48 263 003 in July 2013, as it claimed in the application.

100 First, it is apparent from the documents produced by the applicant in response to that request that Guardian Industries, not the applicant, paid the Commission EUR 20 000 000 in March 2008.

101 Secondly, the documents produced by the applicant show that in March 2008 it did indeed pay the Commission the sum of EUR 91 000 000. However, before that payment, that is as from January 2008, the applicant had entered into an agreement with each of its seven operating subsidiaries to provide that each of those subsidiaries would bear, as from 31 December 2007, from both an accounting and financial point of view, a part of the amount of the fine imposed by Decision C(2007) 5791. In addition, by agreements entered into in December 2008 between the applicant and its subsidiaries, the final allocation was made, between each of those subsidiaries, of the sum of EUR 91 000 000 euros paid by the applicant.

102 Thirdly, the documents produced by the applicant show that, in July 2013, the applicant’s seven operating subsidiaries each paid directly to the Commission a part of the sum of EUR 48 263 003.

103 It follows that the applicant did not itself incur the burden linked to the payment of the fine imposed by Decision C(2007) 5791. The applicant clearly cannot, therefore, claim that it sustained actual and certain damage consisting in the difference between, on the one hand, the interest repaid by the Commission on the part of the fine ultimately held not to be due by the Court of Justice in the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363), and, on the other, the income which it could have earned if, instead of paying the sum at issue to the Commission, it had invested it in its business.

104 That conclusion is not called in question by the applicant’s argument, first, that Guardian was regarded as a single undertaking by Decision C(2007) 5791 and, secondly, that all the sums were paid by entities belonging to the Guardian undertaking.

105 First, the applicant has not produced any document which would authorise it to represent, in the context of the present action, its seven operating subsidiaries which each bore the payment of a part of the fine imposed by Decision C(2007) 5791.

106 Secondly, the applicant has not produced a document which would authorise it to represent Guardian Industries in the context of the present action. In that regard, the applicant cannot rely on an internal memorandum dated 15 November 2015, allegedly addressed to it by Guardian Industries. That memorandum is not signed by Guardian Industries’ legal representatives. Nor does it provide for any express authorisation to the applicant to represent Guardian Industries in the context of the present proceedings. The memorandum simply provides that, if the applicant recovered any bank guarantee costs, it would pay Guardian Industries 18% of the amount recovered. Lastly, it must be added that the agreement on the allocation of liability entered into between Guardian Industries and the applicant in March 2008 is of no relevance to the present case, since it related to the payment of the fine imposed by the Commission, not the present action for damages.

107 Consequently, the claim for compensation for the loss of profit allegedly sustained by the applicant because of a sufficiently serious infringement of the principle of equal treatment in Decision C(2007) 5791 must be dismissed.

108 The applicant submits that between 28 November 2007, when Decision C(2007) 5791 was adopted, and 12 November 2014, the date of the judgment in Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363), the infringement of the principle of equal treatment in that decision created a misleading impression as to the applicant’s role in the infringement. That damage to reputation should be compensated for by an award of damages corresponding to 10% of the fine imposed on the applicant.

110 In that regard, it must be pointed out that the damage to reputation alleged is not linked to the misleading impression that the applicant participated in an infringement of the competition rules. Indeed, the action brought before the General Court in Case T-82/08 sought only the annulment of Decision C(2007) 5791 in part. In addition, in the context of the appeal brought in the case giving rise to the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363), the applicant did not dispute the assessments of the General Court by which it dismissed that application for annulment in part.

111 Thus, the damage to reputation alleged consists solely in Decision C(2007) 5791 creating a misleading impression as to the applicant’s role in the infringement in which it did indeed participate. That misleading impression stems from the fact that the fine which had been imposed on the applicant was greater than that imposed on the other participants in the infringement (see paragraph 67 above).

112 However, first, the applicant’s arguments are not substantiated by evidence which proves that, by its gravity, the alleged sufficiently serious infringement of the principle of equal treatment in Decision C(2007) 5791 was likely to have an effect on the applicant’s reputation beyond the effect linked to its participation in the cartel.

113 In those circumstances, the applicant has not proven that the alleged sufficiently serious infringement of the principle of equal treatment in Decision C(2007) 5791 was such as to damage its reputation.

114 Secondly, even if the alleged sufficiently serious infringement of the principle of equal treatment in Decision C(2007) 5791 as regards the calculation of the amount of the fine imposed on the applicant damaged the latter’s reputation, it would have to be found that, having regard to the nature and gravity of that infringement, the non-material damage sustained by the applicant would have been sufficiently made good by the annulment of that decision and by the reduction of the amount of the fine by the Court of Justice in the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363). That is true all the more so, since, first, the applicant was able to rely on the fact that it brought an action against Decision C(2007) 5791 and, secondly, the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363), was the subject of a press release on the day on which it was delivered, which stated that the EU judicature had ultimately reduced the amount of the fine imposed on the applicant for its role in the flat glass cartel from EUR 148 000 000 to EUR 103 600 000.

115 The claim for compensation for the non-material damage allegedly caused to the applicant by a sufficiently serious infringement of the principle of equal treatment in Decision C(2007) 5791 must, therefore, be dismissed.

116 Consequently, in accordance with the case-law mentioned in paragraph 76 above, the claim for compensation for the alleged damage caused by a sufficiently serious infringement of the principle of equal treatment in Decision C(2007) 5791 must be dismissed in its entirety.

(b) The claim for compensation for the damage allegedly sustained as a result of a sufficiently serious infringement of the principle of equal treatment in the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08)

117 The applicant argues that the error committed in the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494), amounts to a serious infringement of the principle of equal treatment and that that infringement caused it damage.

118 First of all, the applicant submits that it is undeniable that a General Court judgment can give rise to non-contractual liability for the European Union. First, the Court of Justice has recognised that applicants have the right to receive damages in cases in which there has been a failure to comply with the obligation to adjudicate within a reasonable time. Secondly, that liability is the corollary of the case-law of the Court of Justice according to which the courts of a Member State can render that State liable where they deprive an applicant of a right under EU law (judgment of 30 September 2003, Köbler, C-224/01, EU:C:2003:513).

119 Next, the General Court had no discretion, nor could it uphold, as it did, the exclusion of internal sales in Decision C(2007) 5791 if that penalised the one non-vertically integrated addressee of that decision, namely the applicant.

120 Lastly, the applicant submits that it is undeniable, in the light of settled case-law concerning the obligation to take account of internal sales, that the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494), manifestly infringed the principle of equal treatment.

122 In that regard, it must be pointed out that the European Union cannot incur liability for the content of a judicial decision that has not been delivered by an EU court adjudicating at last instance and could, therefore, be subject to an appeal.

123 Indeed, in the present case, the error in the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494), was rectified by the Court of Justice in the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363), following the applicant’s recourse to an appeal.

124 It must, however, be pointed out that the observation in paragraph 122 above is without prejudice to the possibility for the applicant to seek, in exceptional cases, a finding that the European Union is liable on account of serious failures in the functioning of the judicial process, in particular of a procedural or administrative nature, affecting the activity of an EU court. However, such failures are not alleged by the applicant in the context of the present claim, which relates to the content of a judicial decision.

125 Consequently, the claim for compensation for the alleged damage caused by a sufficiently serious infringement of the principle of equal treatment in the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494), must be dismissed.

126 Having regard to all the foregoing, the claims for compensation for the damage allegedly sustained by the applicant because of, first, a sufficiently serious infringement of the principle of equal treatment in Decision C(2007) 5791 and, secondly, a sufficiently serious infringement of the principle of equal treatment in the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494), must be dismissed.

2. The claim for compensation for the damage allegedly suffered because of an infringement of the obligation to adjudicate within a reasonable time in Case T-82/08

127 First, the applicant submits that the length of the proceedings in Case T-82/08 infringed the obligation to adjudicate within a reasonable time. Secondly, it claims that that infringement caused it damage for which it must be compensated.

(a) The alleged infringement of the obligation to adjudicate within a reasonable time in Case T-82/08

128 The applicant submits that the length of the proceedings in Case T-82/08 was in breach of the obligation to adjudicate within a reasonable time, which constitutes a sufficiently serious breach of a rule of EU law intended to confer rights upon individuals.

129 The Court of Justice of the European Union disputes those claims. First, the judgment of 12 November 2014 in Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363) cannot be regarded as having definitively answered the question of whether the requirement of giving judgment within a reasonable period was infringed. Secondly, the applicant’s contention that the reasonable period for delivering judgment in Case T-82/08 was two years is wholly unrealistic in the light of the average duration of proceedings before the General Court between 2006 and 2010 in cases involving the application of competition law. Thirdly, the reasonableness of the period for delivering judgment cannot be assessed on the basis of a fixed amount of time and should be appraised having regard to the circumstances specific to each case and, in particular, to the existence of any unusually long periods of inactivity. Fourthly, as regards the period that elapsed between the closure of the written procedure and the opening of the oral procedure, any period of unexplained inactivity in dealing with Case T-82/08 is far shorter than the applicant claims. The period of three years and five months which elapsed between the closure of the written procedure and the opening of the oral procedure in Case T-82/08 exceeded by only 11 months the average duration of that stage of the proceedings as recorded for the period between 2008 and 2011 in cases involving the application of competition law. Account should also be taken of the complexity of competition cases, the multilingual environment in which the Court of Justice of the European Union operates and the limited terms of office of the judges.

130 The General Court points out that the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union provides in particular that ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law’.

131 In the present case, it follows from a detailed examination of the file in Case T-82/08 that, as the Court of Justice rightly pointed out in the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363), the length of the proceedings in Case T-82/08, which ran to almost four years and seven months, cannot be justified by any of the specific circumstances of that case.

132 First, it must be borne in mind that Case T-82/08 related to proceedings concerning infringement of competition rules and that, according to the case-law, the fundamental requirement of legal certainty on which economic operators must be able to rely and the aim of ensuring that competition is not distorted in the internal market are of considerable importance not only for an applicant himself and his competitors but also for third parties, in view of the large number of persons concerned and the financial interests involved (judgment of 16 July 2009, Der Grüne Punkt - Duales System Deutschland v Commission, C-385/07 P, EU:C:2009:456, paragraph 186).

133 Secondly, it should be noted that, in Case T-82/08, a period of some three years and five months, that is to say 41 months, elapsed between, on the one hand, the end of the written part of the procedure as marked by the lodgement on 3 July 2008 of a letter in which the applicant informed the General Court that is was foregoing lodging a reply and, on the other, the opening of the oral part of the procedure on 13 December 2011.

134 Whether the length of that period is reasonable depends, in particular, on the complexity of the dispute, the conduct of the parties and supervening procedural matters.

135 As regards the complexity of the dispute, first, 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 such as Case T-82/08. Next, the parallel processing of connected cases cannot justify, in the present case, extending the interval between the end of the written part of the procedure and the opening of the oral part of that procedure. Lastly, the degree of factual, legal and procedural complexity in Case T-82/08 is no justification for longer proceedings in this instance. In that regard, it should be noted in particular that, between the end of the written part of the procedure and the opening of the oral part of the procedure, the procedure was neither interrupted nor delayed by the Court’s adoption of any measure of organisation of procedure (see, to that effect, judgment of 10 January 2017, Gascogne Sack Deutschland and Gascogne v European Union, T-577/14, EU:T:2017:1, paragraphs 65 to 74).

136 The conduct of the parties and supervening procedural matters had no impact on the amount of time that elapsed between the end of the written part of the procedure and the opening of the oral part of the procedure in Case T-82/08.

137 Consequently, in the light of the circumstances of Case T-82/08, the fact that 41 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 26 months.

138 Thirdly, an examination of the file in Case T-82/08 has not revealed anything to support the conclusion that there was a period of unjustified inactivity between the date of lodging the application and the end of the written part of the procedure, or between the opening of the oral part of the procedure and the delivery of the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494).

139 It follows that the procedure followed in Case T-82/08, which culminated in the delivery of the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494), infringed the second paragraph of Article 47 of the Charter of Fundamental Rights in that it exceeded by 26 months the reasonable time for adjudicating in that case, which constitutes a sufficiently serious breach of a rule of EU law intended to confer rights on individuals.

140 The applicant submits that the infringement of the obligation to adjudicate within a reasonable time in Case T-82/08 caused it material and non-material damage between 12 February 2010, the date on which the General Court’s judgment ought to have been delivered, and 27 September 2012, that date on which it was actually delivered.

141 The merits of those claims must be assessed in the light of the case-law mentioned in paragraphs 81 and 82 above.

142 First, the applicant argues that it sustained damage to its reputation in the amount of EUR 14 800 000 because, between 12 February 2010 and 27 September 2012, it was wrongly perceived as having a heightened responsibility for the infringement penalised in Decision C(2007) 5791 (see paragraph 67 above). Secondly, the infringement of the principle of equal treatment by the Commission in Decision C(2007) 5791 was exacerbated between 12 February 2010 and 27 September 2012, the period during which the proceedings in Case T-82/08 infringed the obligation to adjudicate within a reasonable time. Thirdly, according to the case-law of the European Court of Human Rights, there is a strong but rebuttable presumption that excessively long proceedings will occasion non-pecuniary damage. Fourthly, the damage sustained by the applicant should be assessed at 10% of the amount of the fine initially imposed on it by Decision C(2007) 5791. The award of damages should be based on the amount of the fine that was imposed on it during the infringement of the obligation to adjudicate within a reasonable time. In addition, the 5% applied by the General Court in some cases concerning infringement by the Commission of the obligation to act within a reasonable time is too low.

143 The Court of Justice of the European Union disputes those claims. In the alternative, it contends that the reparable non-material damage should be quantified at no more than EUR 5 000.

144 In the present case, first, even if by its argument the applicant submits that it was perceived for a longer period as having a particular responsibility in the infringement because of the failure to adjudicate within a reasonable time in Case T-82/08, that argument is not substantiated by evidence which proves that, by its gravity, the failure to adjudicate within a reasonable time was likely to have an effect on the applicant’s reputation beyond the effect caused by Decision C(2007) 5791.

145 In those circumstances, the applicant has not proven that the infringement of the obligation to adjudicate within a reasonable time in Case T-82/08 was such as to damage its reputation.

146 Secondly, in any event, the finding in paragraph 139 above that there has been an infringement of the obligation to adjudicate within a reasonable time would, in the light of the subject matter and the gravity of that infringement, be sufficient to make good the damage to reputation alleged by the applicant.

147 In the light of the foregoing, the applicant has not proven that the infringement of the obligation to adjudicate within a reasonable time in Case T-82/08 was such as to damage its reputation and, in any event, the finding in paragraph 139 above that there has been an infringement of the obligation to adjudicate within a reasonable time would, in the light of the subject matter and the gravity of that infringement, be sufficient to make good the damage to reputation alleged by the applicant.

148 The claim for compensation for an alleged damage to reputation sustained by the applicant must, therefore, be dismissed.

149 The applicant submits that the failure to adjudicate within a reasonable time caused it two types of material damage between 12 February 2010 and 27 September 2012, namely, first, damage corresponding to the payment of additional bank guarantee costs and, secondly, damage corresponding to the loss of profit mentioned in paragraph 24 above.

150 The Court must examine the material damage alleged by the applicant and the alleged causal link between that damage and the failure to adjudicate within a reasonable time in Case T-82/08, in the light of the preliminary observations set out in paragraphs 85 and 86 above.

151 First of all, the applicant explains that the interest repaid by the Commission following the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363) amounted to EUR 224 000 for the period between 12 February 2010 and 27 September 2012. Next, applying the average of the ranges of the applicant’s weighted average cost of capital defined in paragraph 96 above as the sum of EUR 7 400 000, the applicant submits that it would have earned at least EUR 1 895 000 between 12 February 2010 and 27 September 2012. Consequently, since the interest paid by the Commission amounted to EUR 224 000, the applicant sustained a loss of profit of EUR 1 671 000. Lastly, the failure to adjudicate within a reasonable time is the sufficiently direct and conclusive cause of the loss of profit alleged by the applicant. If the obligation to adjudicate within a reasonable time had not been infringed in Case T-82/08, the sums that the Court of Justice ultimately held not to be due in the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363) would have been available to the applicant earlier.

153 In that regard, it is apparent from paragraphs 99 to 103 above that the applicant did not itself incur the burden linked to the payment of the fine imposed by Decision C(2007) 5791. The applicant clearly cannot, therefore, claim that, between 12 February 2010 and 27 September 2012, it sustained actual and certain damage consisting in the difference between, on the one hand, the interest repaid by the Commission on the part of the fine ultimately held not to be due by the Court of Justice in the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363) and, on the other, the income which it might have earned if, instead of paying the sum at issue to the Commission, it had invested that sum in its business.

154 Consequently, in accordance with the case-law mentioned in paragraph 76 above, the claim for compensation for the loss of profit alleged by the applicant must be dismissed and there is no need to assess whether the alleged causal link exists.

155 The applicant seeks compensation for damage sustained because of paying additional bank guarantee costs between 12 February 2010 and 27 September 2012.

156 The Court of Justice of the European Union contends that the applicant has failed to prove the existence of a sufficiently direct causal link between the bank guarantee costs paid between 12 February 2010 and 27 September 2012 and the alleged failure to adjudicate within a reasonable time. First of all, this material damage is a result of the applicant’s own choice not immediately to fulfil its obligation to pay the fine in full. Next, in the light of the definition of causal link under EU law, the existence of a causal link cannot be established on the basis of the sole finding that, if there had been no failure to adjudicate within a reasonable time, the applicant would not have been compelled to pay bank guarantee costs for the period exceeding what was reasonable. Lastly, even if the applicant’s proposed definition of causal link had to be applied, the fact that the applicant cancelled the guarantee on 2 August 2013, that is 10 months after delivery of the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494) and 16 months before delivery of the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363), confirms that there was no direct link between the duration of the period during which the applicant provided a bank guarantee and any delay in dealing with Case T-82/08.

157 In that regard, first, it must be pointed out that, in its application, the applicant submits that, between 12 February 2010 and 27 September 2012, it paid bank guarantee costs in the amount of EUR 936 000. In support of its claim, it produces a bank document containing details of the quarterly payments made to a bank throughout the course of the proceedings in Case T-82/08.

158 However, in response to a request from the General Court in the context of measures of organisation of procedure under Article 89 of the Rules of Procedure, the applicant clarified that 82% of the bank guarantee costs mentioned in the application had been invoiced to it and 18% of the bank guarantee costs to Guardian Industries.

159 It follows that the applicant has shown only that it sustained actual and certain damage consisting in the payment of 82% of the bank guarantee costs paid during the period by which the reasonable time for adjudicating in Case T-82/08 was exceeded. In addition, as is apparent from paragraph 106 above, the applicant has not shown that it is authorised to represent Guardian Industries in the context of the present proceedings.

160 Secondly, there is a causal link between the infringement of the obligation to adjudicate within a reasonable time in Case T-82/08 and the occurrence of the damage sustained by the applicant as a result of its having paid bank guarantee costs during the period by which the reasonable time for adjudication was exceeded. In addition, in the present case, it should be noted, first, that, at the time when the applicant brought its action in Case T-82/08, on 12 February 2008, and at the time when the applicant provided a bank guarantee, in February 2008, with effect from 4 March 2008, the infringement of the obligation to adjudicate within a reasonable time was not foreseeable. Furthermore, the applicant could legitimately expect its action to be dealt with within a reasonable time. Secondly, the reasonable time for adjudicating in Case T-82/08 was exceeded after the applicant’s initial decision to provide a bank guarantee. Consequently, the link between the fact that the reasonable time for adjudicating in Case T-82/08 was exceeded and the payment of bank guarantee costs during that excess period cannot have been severed by the applicant’s initial decision not to effect immediate payment in part of the fine imposed by Decision C(2007) 5791 and to provide a bank guarantee (see, to that effect, judgment of 10 January 2017, Gascogne Sack Deutschland and Gascogne v European Union, T-577/14, EU:T:2017:1, paragraphs 115 to 121).

161 It follows that there is a sufficiently direct causal link between the infringement of the obligation to adjudicate within a reasonable time in Case T-82/08 and the loss sustained by the applicant because of paying additional bank guarantee costs during the period by which that reasonable time was exceeded.

162 First, it must be borne in mind that the duration of the proceedings exceeded by 26 months the reasonable time for adjudicating in Case T-82/08 (see paragraphs 134 to 139 above).

163 Secondly, it is apparent from the documents produced by the applicant that, in the course of the 26 months preceding the delivery of the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494), the applicant itself paid the following quarterly bank guarantee costs:

164 It follows that, in the course of the 26 months preceding the delivery of the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494), the bank guarantee costs paid by the applicant amounted to EUR 654 523.43.

165 In the light of the foregoing, it is appropriate to award the applicant compensation in the amount of EUR 654 523.43 by way of reparation for the material damage caused to it by the infringement of the obligation to adjudicate within a reasonable time in Case T-82/08, consisting in the payment of additional bank guarantee costs.

166 The applicant has asked the Court to order that any amount of compensation awarded to it bear interest starting from 12 February 2010, at the rate applied by the ECB at the relevant time to its main refinancing operations, increased by two percentage points.

167 In that regard, a distinction must be drawn between compensatory interest and default interest (judgment of 27 January 2000, Mulder and Others v Council and Commission, C-104/89 and C-37/90, EU:C:2000:38, paragraph 55).

168 First, as regards compensatory interest, the compensation due to the applicant as reparation for its material damage may bear such interest for the period between 27 July 2010, that is 26 months before the delivery of the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494), and the date of delivery of the present judgment. In addition, since the applicant has not supplied any evidence to show that the bank guarantee costs it paid between 27 July 2010 and 27 September 2012 could have produced interest at the rate applied by the ECB to its main refinancing operations, increased by two percentage points, it must be found that the monetary depreciation linked to the passage of time is reflected by the annual rate of inflation determined, for the period in question, by Eurostat (the European Union’s statistical office) in the Member State where the applicant is established, up to a value not exceeding that claimed by it (see, to that effect, judgment of 10 January 2017, Gascogne Sack Deutschland and Gascogne v European Union, T-577/14, EU:T:2017:1, paragraphs 168 to 177 and the case-law cited).

169 Secondly, as regards default interest, the compensation referred to in paragraph 165 above, including the compensatory interest borne by that compensation, must be increased by default interest, starting from the date of delivery of the present judgment until payment in full. In addition, the rate of the default interest will be that set by the ECB for its main refinancing operations, increased by two percentage points, in accordance with the applicant’s claim (see, to that effect, judgment of 10 January 2017, Gascogne Sack Deutschland and Gascogne v European Union, T-577/14, EU:T:2017:1, paragraphs 178 to 182 and the case-law cited).

170 In the light of all of the foregoing, the present action must be upheld in part in so far as it seeks compensation for the damage sustained by the applicant because of the infringement of the obligation to adjudicate within a reasonable time in Case T-82/08.

171 The compensation due to the applicant as reparation for the damage which it sustained because of paying additional bank guarantee costs amounts to EUR 654 523.43, increased by compensatory interest, starting from 27 July 2010 until delivery of the present judgment, at the annual rate of inflation determined by Eurostat in the Member State where that company is established.

172 The amount of the compensation referred to in paragraph 171 above, including the compensatory interest borne by the compensation, will be increased by default interest in the manner defined in paragraph 169 above.

174 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

175 In the present case, the applicant has been unsuccessful in its claims for compensation against the European Union, represented by the Commission. The applicant must, therefore, be ordered to bear the costs incurred by the European Union, represented by the Commission.

176 Under Article 134(3) of those Rules, where each party succeeds on some and fails on other heads, the parties must bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.

177 In the present case, the applicant has been successful in part in its claims against the European Union, represented by the Court of Justice of the European Union. However, it has largely failed in its claim for compensation. For that reason, and taking into account all of the circumstances of the case, it is appropriate to decide that the applicant, on the one hand, and the European Union, represented by the Court of Justice of the European Union, on the other, must bear their own costs.

1. Orders the European Union, represented by the Court of Justice of the European Union, to pay compensation of EUR 654 523.43 to Guardian Europe Sàrl for the material damage sustained by that company because of the infringement of the obligation to adjudicate within a reasonable time in the case giving rise to the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494). That compensation is to be adjusted by applying compensatory interest, starting from 27 July 2010 and continuing up to the date of delivery of the present judgment, at the annual rate of inflation determined, for the period in question, by Eurostat (the statistical office of the European Union) in the Member State where that company is established;

2. The compensation referred to in point 1 shall be increased by default interest, starting from the date of delivery of the present judgment until full payment, at the rate set by the European Central Bank (ECB) for its main refinancing operations, increased by two percentage points;

4. Orders Guardian Europe to bear the costs incurred by the European Union, represented by the European Commission;

5. Orders Guardian Europe, on the one hand, and the European Union, represented by the Court of Justice of the European Union, on the other, to bear their own costs.

Quarter	Bank guarantee costs paid (EUR)	Duration for which compensation may be paid (in months)	Compensatable damage (EUR)
3/2010	72 523.66	2	48 349.11
4/2010	72 523.66	3	72 523.66
1/2011	48 874.64 +23 137.15	3	72 011.79
2/2011	75 195.73	3	75 195.73
3/2011	76 022.06	3	76 022.06
4/2011	76 022.06	3	76 022.06
1/2012	52 884.91 +23 337.53	3	76 222.44
2/2012	78 656.11	3	78 656.11
3/2012	79 520.47	3	79 520.47

		Total	654 523.43

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Guardian Europe v European Union (Non-contractual liability - Representation of the European Union - Barring of actions : Judgment) [2017] EUECJ T-673/15 (07 June 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/T67315.html Cite as: [2017] EUECJ T-673/15, ECLI:EU:T:2017:377, EU:T:2017:377

Court of Justice of the European Communities (including Court of First Instance Decisions)