European Commission v Deutsche Telekom AG.

• Jurisdiction: European Union
• Celex Number: 62022CJ0221
• ECLI: ECLI:EU:C:2024:488
• Date: 11 June 2024
• Docket Number: C-221/22
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

11 June 2024 (*)

(Appeal – Competition – Articles 266 and 340 TFEU – Judgment reducing the amount of a fine imposed by the European Commission – Repayment by the Commission of the amount unduly collected – Obligation to pay interest – Characterisation – Compensation at a standard rate for loss of enjoyment of the unduly paid amount of the fine – Rate applicable)

In Case C‑221/22 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 28 March 2022,

European Commission, represented by D. Calleja Crespo, N. Khan, B. Martenczuk, P. Rossi and L. Wildpanner, acting as Agents,

appellant,

the other party to the proceedings being:

Deutsche Telekom AG, established in Bonn (Germany), represented by C. von Köckritz, P. Lohs and U. Soltész, Rechtsanwälte,

applicant at first instance,

JUDGMENT OF THE COURT (Grand Chamber)

composed of K. Lenaerts, President, L. Bay Larsen, Vice-President, A. Arabadjiev, C. Lycourgos, E. Regan, F. Biltgen, N. Piçarra and Z. Csehi (Rapporteur), Presidents of Chambers, P.G. Xuereb, L.S. Rossi, N. Jääskinen, N. Wahl, I. Ziemele, J. Passer and D. Gratsias, Judges,

Advocate General: A.M. Collins,

Registrar: D. Dittert, Head of Unit,

having regard to the written procedure and further to the hearing on 12 July 2023,

after hearing the Opinion of the Advocate General at the sitting on 23 November 2023,

gives the following

Judgment

1 By its appeal, the European Commission seeks to have set aside in part the judgment of the General Court of the European Union of 19 January 2022, Deutsche Telekom v Commission (T‑610/19, ‘the judgment under appeal’, EU:T:2022:15), by which the General Court ordered the Commission to pay damages in the amount of EUR 1 750 522.83 to Deutsche Telekom AG by way of compensation for the harm suffered, annulled the Commission’s decision of 28 June 2019 refusing to pay default interest to Deutsche Telekom (‘the decision at issue’) and dismissed Deutsche Telekom’s action as to the remainder.

Legal context

European Union law

The 2012 Financial Regulation

2 Under the heading ‘Establishment of amounts receivable’, Article 78 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1; ‘the 2012 Financial Regulation’) provided the following in paragraph 4:

‘The Commission shall be empowered to adopt delegated acts in accordance with Article 210 concerning detailed rules on the establishment of amounts receivable, including procedures and supporting documents, and of default interest.’

Delegated Regulation (EU) No 1268/2012

3 Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of the 2012 Financial Regulation (OJ 2012 L 362, p. 1) was adopted by the Commission on the basis, inter alia, of Article 78(4) of the 2012 Financial Regulation.

4 Under Article 83 of Delegated Regulation No 1268/2012, entitled ‘Default interest’:

‘1. Without prejudice to any specific provisions deriving from the application of sector-specific regulations, any amount receivable not repaid on the deadline referred to in Article 80(3)(b) shall bear interest in accordance with paragraphs 2 and 3 of this Article.

2. The interest rate for amounts receivable not repaid on the deadline referred to in Article 80(3)(b) shall be the rate applied by the European Central Bank [(ECB)] to its principal refinancing operations, as published in the C series of the Official Journal of the European Union [(‘the ECB refinancing rate’)], in force on the first calendar day of the month in which the deadline falls, increased by:

(a) eight percentage points where the obligating event is a public supply and service contract referred to in Title V;

(b) three and a half percentage points in all other cases.

3. Interest shall be calculated from the calendar day following the deadline referred to in Article 80(3)(b) and specified in the debit note up to the calendar day on which the debt is repaid in full.

The recovery order corresponding to the amount of the default interest shall be issued when this interest is actually received.

4. In the case of fines, where the debtor provides a financial guarantee which is accepted by the accounting officer instead of payment, the interest rate applicable from the deadline referred to in Article 80(3)(b) shall be the rate referred to in paragraph 2 of this Article as in force on the first day of the month in which the decision imposing a fine has been adopted and increased only by one and a half percentage points.’

5 Article 90 of that regulation, entitled ‘Recovery of fines or other penalties’, provided:

‘1. Where an action is brought before the Court of Justice of the European Union against a Commission decision imposing a fine or other penalties under the [FEU Treaty] or Euratom Treaty and until such time as all legal remedies have been exhausted, the debtor shall either provisionally pay the amounts concerned on the bank account designated by the accounting officer or provide a financial guarantee acceptable to the accounting officer. The guarantee shall be independent of the obligation to pay the fine or penalty payment or other penalties and shall be enforceable upon first call. It shall cover the claim as to principal and the interest due as specified in Article 83(4).

2. The Commission shall secure the provisionally cashed amounts by having them invested in financial assets thus ensuring the security and liquidity of the monies whilst also aiming at yielding a positive return.

…

4. After all legal remedies have been exhausted and where the fine or penalty has been cancelled or reduced any of the following measures shall be taken:

(a) the amounts unduly collected together with the interest yielded shall be repaid to the third party concerned. In cases where the overall return yielded for the relevant period has been negative, the nominal value of the amounts unduly collected shall be repaid;

(b) where a financial guarantee has been lodged, the latter shall be released accordingly.’

Background to the dispute

6 On 15 October 2014, the Commission adopted Decision C(2014) 7465 final relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39523 – Slovak Telekom), rectified by Commission Decision C(2014) 10119 final of 16 December 2014, and also by Commission Decision C(2015) 2484 final of 17 April 2015.

7 By that decision, the Commission imposed on Deutsche Telekom a fine of EUR 31 070 000 for abuse of its dominant position on the Slovak market for broadband telecommunications services, in breach of Article 102 TFEU and Article 54 of the EEA Agreement.

8 Deutsche Telekom brought an action for annulment of that decision while provisionally paying the fine on 16 January 2015. By its judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930; ‘the 2018 judgment in Deutsche Telekom’), the Court upheld Deutsche Telekom’s action in part and, in the exercise of its unlimited jurisdiction, reduced that fine by EUR 12 039 019. On 19 February 2019, the Commission repaid that amount to Deutsche Telekom.

9 On 12 March 2019, Deutsche Telekom asked the Commission to pay it default interest corresponding to the amount unduly collected for the period from the date of payment of the fine to the date of repayment of that amount (‘the relevant period’).

10 By the decision at issue, the Commission refused that request. It argued that, under Article 90(4)(a) of Delegated Regulation No 1268/2012, default interest should not be added to the nominal amount of the fine unduly collected, because the overall return on the investment of that amount in financial assets, which it had made pursuant to Article 90(2), had been negative.

11 In that decision, the Commission also examined Deutsche Telekom’s argument that that company was entitled, in accordance with the judgment of the General Court of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81), to receive default interest at the ECB refinancing rate, increased by 3.5 percentage points. In response to that argument, the Commission explained that that judgment did not constitute a legal basis for paying the default interest claimed by Deutsche Telekom. In addition, it argued that that judgment had to be without prejudice to the application of Article 90(4)(a) of Delegated Regulation No 1268/2012. Lastly, it stated that it had lodged an appeal against that judgment, which was therefore not final.

The action before the General Court and the judgment under appeal

12 By application lodged at the Registry of the General Court on 9 September 2019, Deutsche Telecom brought an action before the General Court seeking annulment of the decision at issue and an order directing the Commission to pay compensation arising from lost revenue as a result of the loss of enjoyment, during the relevant period, of the amount of the fine unduly collected or, in the alternative, compensation for the harm suffered as a result of the Commission’s refusal to pay default interest on that amount.

13 The General Court upheld those claims in part.

14 In the first place, the General Court rejected Deutsche Telekom’s claim for compensation based on the non-contractual liability of the European Union for the alleged loss of revenue arising from the loss of enjoyment during the relevant period of the amount of the fine that had been unduly collected and which corresponds to the annual return on its invested capital or to the weighted average cost of its capital.

15 According to the General Court, Deutsche Telekom had failed to adduce conclusive proof of the actual and certain nature of the harm alleged. More specifically, Deutsche Telekom has not demonstrated that...