Judgments nº T-673/15 of Tribunal General de la Unión Europea, June 07, 2017

• Resolution Date: June 07, 2017
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-673/15

In Case T-673/15,

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

applicant,

v

European Union, represented by:

(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,

defendant,

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),

THE GENERAL COURT (Third Chamber, Extended Composition),

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

Registrar: C. Heeren, Administrator,

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

gives the following

Judgment

1. Background to the dispute

   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.

2. Procedure and forms of order sought

   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.

   13 The applicant claims that the General Court should:

   - 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:

   - guarantee costs of EUR 936 000;

   - opportunity costs/loss of profit of EUR 1 671 000;

   - non-material damage of EUR 14 800 000;

   - 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:

   - guarantee costs of EUR 1 547 000;

   - opportunity costs/loss of profit of EUR 9 292 000;

   - non-material damage of EUR 14 800 000;

   - order the defendants to pay the costs.

   14 The Commission contends that the General Court should:

   - dismiss the action in so far as it is directed against it; and

   - order the applicant to pay the costs.

   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;

   - order the applicant to pay the costs.

3. Law

   1. Admissibility

      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.

      2. Pleas of inadmissibility based on the limitation of actions

         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...