Opinion of Advocate General Collins delivered on 23 November 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:906
• Date: 23 November 2023
• Celex Number: 62022CC0221
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 23 November 2023(1)

Case C‑221/22 P

European Commission

v

Deutsche Telekom AG

(Appeal – Competition – Abuse of a dominant position – Judgment annulling a decision in part and reducing the amount of the fine – Obligation on the Commission to pay interest – Default interest – Articles 266 and 340 TFEU – Article 90 of Delegated Regulation (EU) No 1268/2012)

I. Introduction

1. An EU institution adopts a decision on foot of which an undertaking pays a sum of money to it on a provisional basis. The Court of Justice subsequently declares part, or all, of that decision, void. The undertaking seeks a refund of that sum from the EU institution, together with what it describes as ‘default interest’ calculated on the sum declared to have been paid unduly, to run from the date upon which it paid that sum until the delivery of the Court’s judgment. Does EU law require the EU institution to accede to that demand? That is, in a nutshell, the question the Commission asks the Court to determine in this appeal.

2. The answer to that question engages the first paragraph of Article 266 TFEU. Do the necessary measures that an EU institution may be required to take in order to comply with a judgment of the Court include payment of the ‘default interest’ sought in this action? That assessment is to be made in the context of case-law that uses the term ‘default interest’ to describe distinct legal concepts that serve a variety of objectives. The discussion at times brings to mind the famous exchange between Humpty Dumpty and Alice in Lewis Carroll’s Through the Looking-Glass. (2)

II. Facts and procedure

A. Background to the appeal

3. On 15 October 2014, the European 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) (‘the 2014 decision’). The 2014 decision concluded that Deutsche Telekom AG and Slovak Telekom a.s. had breached Article 102 TFEU and Article 54 of the Agreement on the European Economic Area (EEA). It imposed a fine of EUR 38 838 000 on Deutsche Telekom and Slovak Telekom jointly and severally, and a separate fine of EUR 31 070 000 on Deutsche Telekom.

4. On 24 December 2014, Deutsche Telekom brought an action to annul the 2014 decision.

5. On 16 January 2015, Deutsche Telekom provisionally paid EUR 31 070 000 to the Commission.

6. By judgment of 13 December 2018, Deutsche Telekom v Commission (T‑827/14, EU:T:2018:930; ‘the 2018 judgment’), the General Court reduced by EUR 12 039 019 the amount of the fine for which Deutsche Telekom had been held to be solely liable. On 19 February 2019, the Commission refunded that sum to Deutsche Telekom.

7. On 21 February 2019, Deutsche Telekom brought an appeal against the 2018 judgment.

8. On 12 March 2019, Deutsche Telekom requested that the Commission pay default interest on EUR 12 039 019, to run from 16 January 2015 until 19 February 2019. In support of its request, Deutsche Telekom relied on the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81).

9. By letter of 28 June 2019 (‘the contested decision’), the Commission refused to pay default interest to Deutsche Telekom, stating that the 2018 judgment required reimbursement of the nominal value of the reduction of the fine. Applying Article 90 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 (‘Delegated Regulation No 1268/2012’), (3) the Commission repaid the nominal value without interest since that amount had yielded a negative return during the relevant period. The Commission added that it had lodged an appeal against the judgment of 12 February 2019, Printeos v Commission (T‑201/17, EU:T:2019:81).

10. The Court dismissed the Commission’s appeal by judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39; ‘the judgment in Printeos’).

11. By judgment of 25 March 2021, Deutsche Telekom v Commission (C‑152/19 P, EU:C:2021:238), the Court dismissed Deutsche Telekom’s appeal against the 2018 judgment, by virtue of which the reduction of the fine imposed became final.

B. The judgment under appeal

12. On 9 September 2019, Deutsche Telekom lodged an action before the General Court seeking to annul the contested decision. It also sought an order requiring the Commission to compensate it for the loss sustained due to the unavailability of the sum it had unduly paid. In the alternative, it sought an order that the General Court require the Commission to pay default interest on the amount unduly paid, from the date of the provisional payment of the fine until the date of its reimbursement. That default interest was to be calculated on the basis of the rate applied by the European Central Bank (ECB) to its principal refinancing operations, increased by three and a half percentage points or, alternatively, by reference to a rate that the General Court considered appropriate. It also sought an order that the General Court require the Commission to pay default interest on the amount owed from the delivery of the judgment to be given in the proceedings before that court until the Commission repaid that amount.

13. In its judgment of 19 January 2022, Deutsche Telekom v Commission (T‑610/19, EU:T:2022:15; ‘the judgment under appeal’), the General Court rejected the head of claim seeking compensation for the loss sustained due to the unavailability of the sum it had unduly paid. Deutsche Telekom had not shown that it had suffered loss of profit due to any inability to invest that sum in its business or that its unavailability had caused it to abandon any specific projects.

14. As for the head of claim for compensation due to the Commission’s refusal to pay default interest on the amount unduly paid from the date it had been paid until its reimbursement, the General Court concluded that the 2014 decision constituted a sufficiently serious breach of the first paragraph of Article 266 TFEU, as a consequence of which Deutsche Telekom had suffered loss. The General Court held that the first paragraph of Article 266 TFEU is a rule of law intended to confer rights on individuals. The annulment of a measure by the EU judicature operates ex tunc, thus eliminating it with retroactive effect. Where a sum of money has been unduly paid to an EU institution, a right to the repayment of that sum, together with default interest, arises. The purpose of default interest is to compensate at a standard rate for the loss of enjoyment of money owed and to encourage a debtor to comply with a judgment as soon as possible. Payment of default interest is thus an essential component of the Commission’s obligation under the first paragraph of Article 266 TFEU to restore the applicant to its original position following the annulment of a fine. The obligation to pay default interest provides compensation at a standard rate for an objective delay which arises from, first, the duration of legal proceedings; second, the entitlement to restitution of an undertaking which has provisionally paid a fine that is subsequently cancelled or reduced; and, third, the ex tunc effect of orders of the EU Courts. The General Court accepted that the obligation to pay ‘default interest’ cannot encourage the Commission, prior to the delivery of a judgment annulling a fine in whole or in part, to repay the amount that it had unduly received.

15. The General Court rejected the Commission’s argument that, by virtue of Article 90(4) of Delegated Regulation No 1268/2012, it was obliged to repay only the ‘interest yielded’ by the amount that it had received unduly. (4) The obligation to pay ‘default interest’ exists notwithstanding payment of any sums yielded by the operation of Article 90(4) of Delegated Regulation No 1268/2012. The General Court accordingly held that there was no need to rule on the plea Deutsche Telekom had raised as to the illegality of Article 90(4) of Delegated Regulation No 1268/2012.

16. The General Court concluded that the Commission’s obligation to pay default interest calculated from the date of provisional payment arose from the obligation, under the first paragraph of Article 266 TFEU, to comply with the 2018 judgment. The maximum amount of a claim for restitution as a consequence of the provisional payment of a fine was certain or could be determined at the date of that payment by reference to objective factors. The interest payable is default interest and no question of compensatory interest arose. It held that the refusal to pay default interest met the conditions laid down in the second paragraph of Article 266 TFEU, read in conjunction with the second paragraph of Article 340 thereof, for invoking the non-contractual liability of the European Union.

17. To determine the rate of default interest, the General Court applied, by analogy, Article 83 of Delegated Regulation No 1268/2012, entitled ‘Default interest’. The Commission was obliged to pay the rate applied by the ECB to its principal refinancing obligations, increased by three and a half percentage points, namely 3.55%, in the period between 16 January 2015 and 19 February 2019, which amounted to EUR 1 750 522.83.

18. Lastly, the General Court added that, from the delivery of the judgment under appeal until payment in full by the Commission, the amount owed was to be increased by default interest, calculated at the rate applied by the ECB to its principal refinancing operations, increased by three and a half percentage points.

C. The appeal

19. The Commission brought the present appeal on 28 March 2022. It requested its assignment to the Grand Chamber to allow the Court to re-examine the approach that it had taken in the judgment in Printe...