Appeals — Actions for damages — Second paragraph of Article 340 TFEU — Excessive length of the proceedings in a case before the General Court of the European Union — Compensation for the damage allegedly sustained by the applicant — Concept of a ‘single undertaking’ not applied — Material damage — Bank guarantee costs — Causal link –– Loss of profit — Non-pecuniary damage — Liability of the European Union for damage caused by infringements of EU law arising from a decision of the General Court –– No incurring of liability.

• Jurisdiction: European Union
• Celex Number: 62017CJ0447
• ECLI: ECLI:EU:C:2019:672
• Docket Number: C-479/17,C-447/17
• Date: 05 September 2019
• Court: Court of Justice (European Union)
• Procedure Type: Recurso de casación - sobreseimiento

JUDGMENT OF THE COURT (First Chamber)

5 September 2019 ( *1 )

(Appeals — Actions for damages — Second paragraph of Article 340 TFEU — Excessive length of the proceedings in a case before the General Court of the European Union — Compensation for the damage allegedly sustained by the applicant — Concept of a ‘single undertaking’ not applied — Material damage — Bank guarantee costs — Causal link — Loss of profit — Non-pecuniary damage — Liability of the European Union for damage caused by infringements of EU law arising from a decision of the General Court — No incurring of liability)

In Joined Cases C‑447/17 P and C‑479/17 P,

TWO APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, brought, respectively, on 25 July 2017 and 8 August 2017,

European Union, represented by the Court of Justice of the European Union, represented initially by J. Inghelram and K. Sawyer, and subsequently by J. Inghelram, acting as Agents,

appellant,

the other parties to the proceedings being:

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

applicant at first instance,

European Union, represented by the European Commission, represented by N. Khan, A. Dawes and C. Urraca Caviedes, acting as Agents,

defendant at first instance (C‑447/17 P),

and

Guardian Europe Sàrl, established in Bertrange, represented by C. O’Daly, Solicitor, and F. Louis, avocat,

appellant,

the other parties to the proceedings being:

European Union, represented by the Court of Justice of the European Union, represented initially by J. Inghelram and K. Sawyer, and subsequently by J. Inghelram, acting as Agents,

European Union, represented by the European Commission, represented by N. Khan, A. Dawes and C. Urraca Caviedes, acting as Agents,

defendants at first instance (C‑479/17 P),

THE COURT (First Chamber),

composed of R. Silva de Lapuerta (Rapporteur), Vice-President of the Court, acting as President of the First Chamber, J.‑C. Bonichot, E. Regan, C.G. Fernlund and S. Rodin, Judges,

Advocate General: Y. Bot,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 16 May 2019,

gives the following

Judgment

1 By their respective appeals, the European Union, represented by the Court of Justice of the European Union (C‑447/17 P), and Guardian Europe Sàrl (C‑479/17 P) ask the Court to set aside in part the judgment of the General Court of the European Union of 7 June 2017, Guardian Europe v European Union (T‑673/15, EU:T:2017:377; ‘the judgment under appeal’), by which the General Court, first, ordered the European Union, represented by the Court of Justice of the European Union, to pay compensation in the sum of EUR 654 523.43 to Guardian Europe 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; ‘Case T‑82/08’), and secondly, dismissed the action as to the remainder.

Legal context

Statute of the Court of Justice of the European Union

2 Article 56 of the Statute of the Court of Justice of the European Union provides: ‘An appeal may be brought before the Court of Justice, within two months of the notification of the decision appealed against, against final decisions of the General Court and decisions of that Court disposing of the substantive issues in part only or disposing of a procedural issue concerning a plea of lack of competence or inadmissibility. Such an appeal may be brought by any party which has been unsuccessful, in whole or in part, in its submissions. …’

Rules of Procedure of the Court of Justice

3 As provided in Article 174 of the Rules of Procedure of the Court of Justice, ‘a response shall seek to have the appeal allowed or dismissed, in whole or in part’.

4 Article 176 of the Rules of Procedure is worded as follows: ‘1. The parties referred to in Article 172 of these Rules may submit a cross-appeal within the same time limit as that prescribed for the submission of a response. 2. A cross-appeal must be introduced by a document separate from the response.’

5 Article 178 of the Rules of Procedure states: ‘1. A cross-appeal shall seek to have set aside, in whole or in part, the decision of the General Court. 2. It may also seek to have set aside an express or implied decision relating to the admissibility of the action before the General Court. …’

Background to the dispute

6 By application lodged at the Registry of the General Court on 12 February 2008, Guardian Industries Corp. and Guardian Europe 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) (‘the decision at issue’). In their application, they essentially claimed that the General Court should annul the decision at issue in part in so far as it concerned them and reduce the amount of the fine imposed on them by that decision.

7 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.

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

9 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 as regards the calculation of the amount of the fine imposed jointly and severally on Guardian Industries and Guardian Europe and had ordered those parties to pay the costs. Secondly, the Court annulled Article 2 of the decision at issue in so far as it set the amount of the fine imposed jointly and severally on Guardian Industries and Guardian Europe at EUR 148000000. Thirdly, the Court set the amount of the fine imposed jointly and severally on Guardian Industries and Guardian Europe by reason of the infringement established in Article 1 of the decision at issue at EUR 103600000. Fourthly, the Court dismissed the appeal as to the remainder. Fifthly, the Court apportioned the costs.

Procedure before the General Court and the judgment under appeal

10 By application lodged at the Registry of the General Court on 19 November 2015, Guardian Europe brought an action on the basis of Article 268 TFEU and the second paragraph of Article 340 TFEU against the European Union, represented by the European Commission and by the Court of Justice of the European Union, seeking compensation for the damage which it considered that it had sustained as a result of, first, the excessive length of the proceedings before the General Court in Case T‑82/08 and, secondly, an infringement of the principle of equal treatment committed in the decision at issue and in the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T‑82/08, EU:T:2012:494).

11 By the judgment under appeal, the General Court: ‘1. [Ordered] the European Union, represented by the Court of Justice of the European Union, to pay compensation of EUR 654 523.43 to Guardian Europe … for the material damage sustained by that company because of the infringement of the obligation to adjudicate within a reasonable time in [Case T‑82/08]. That compensation [was] to be adjusted by applying compensatory interest, starting from 27 July 2010 and continuing up to the date of delivery of the [judgment under appeal], 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 [was] established; 2. [Ordered that] the compensation referred to in point 1 … be increased by default interest, starting from the date of delivery of the [judgment under appeal] until full payment, at the rate set by the European Central Bank (ECB) for its main refinancing operations, increased by two percentage points; 3. [Dismissed] the action as to the remainder; 4. [Ordered] Guardian Europe to bear the costs incurred by the European Union, represented by the European Commission; 5. [Ordered] 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.

Forms of order sought

12 By its appeal in Case C‑447/17 P, the European Union, represented by the Court of Justice of the European Union, claims that the Court should: – set aside paragraph 1 of the operative part of the judgment under appeal; – dismiss as unfounded Guardian Europe’s claim, made at first instance, seeking to obtain a sum of EUR 936000 in respect of bank guarantee costs in compensation for damage that it allegedly suffered because of infringement of the obligation to adjudicate within a reasonable time in Case T‑82/08, or, and purely in the alternative, reduce that compensation to an amount of EUR 299 251.64, together with compensatory interest calculated having regard to the fact that that amount...