On February 12, 2019, the General Court ordered the Commission to pay Printeos €0.18 million in interest on a previously paid cartel fine that was subsequently repealed by the General Court.[1]

On December 11, 2014, the Commission imposed a €4.7 million fine on Printeos for participation in the paper envelope cartel.[2] Printeos appealed the Commission’s decision and decided to provisionally pay the imposed fine instead of providing a bank guarantee. As required under EU law, the Commission invested this amount into financial assets, to ensure the security and liquidity of the money, while aiming at yielding a positive return.[3] In December 2016, the General Court upheld Printeos’ appeal.[4] The Commission repaid the €4.7 million fine on February 1, 2017, but refused to pay any interest because its investment of the money did not return any profit. Printeos brought an action for damages claiming financial compensation equivalent to two percentage points over the European Central Bank’s (“ECB”) rate (which equated to an effective annual interest rate of approximately 0.00–0.05%) for the 23-month period between the provisional payment of the fine on March 9, 2015, and its reimbursement on February 1, 2017.

The General Court ruled that the Commission should have paid default interest and that the Commission’s refusal breached Article 266(1) TFEU, which stipulates that the EU institutions should take the necessary measures to comply with the judgments of the EU courts.[5] The General Court found that the Commission had an unconditional and absolute obligation to pay a default interest, without any margin of discretion in this regard. According to the General Court, such a breach was sufficiently serious to incur the EU’s non-contractual liability under Article 266 TFEU, read in conjunction with Article 340 TFEU.[6] The General Court ordered the Commission to pay approximately €180,000 in damages, equivalent to the default interest amount claimed by Printeos.

The Printeos judgment illustrates the General Court’s willingness to award non-contractual damages caused by the EU institutions. This question is of particular relevance in the two currently pending actions for damages brought against the Commission following the annulment of the UPS/TNT Express[7] merger prohibition decision. As further explained in our November 2018 newsletter, UPS[8] and ASL[9] are seeking €1.7 billion and €263.6 million in damages (plus interest), respectively, for losses generated as a result of the Commission’s 2013 decision to prohibit the proposed acquisition of TNT Express NV by UPS.

The Printeos judgment comes only two months after the ECJ judgment European Union v. Gascogne.[10] This judgment established a high bar for awarding non-contractual damages related to additional costs incurred as a result of choosing the bank guarantee instead of provisional fine payment. These two rulings should thus be factored in by companies when choosing between posting a bank guarantee or provisionally paying a fine.

[1]      Printeos v. Commission (Case T-201/17) EU:T:2019:81.

[2]      Envelopes (Case COMP/AT.39780), Commission decision of December 10, 2014.

[3]      Article 90 (2) of Commission Delegated Regulation No. 1268/2012 of 29 October 2012, repealed by Regulation (EU, Euratom) 2018/1046 of 18 July 2018, OJ L 193/30.

[4]      Printeos and Others v Commission (Case T-95/15) EU:T:2016:722.

[5]      Article 266(1) TFEU stipulates “[t]he institution whose act has been declared void or whose failure to act has been declared contrary to the Treaties shall be required to take the necessary measures to comply with the judgment of the Court of Justice of the European Union.”

[6]      Article 340(2) TFEU stipulates that “[i]n the case of non-contractual liability, the Union shall, 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.”

[7]      UPS/TNT Express (Case COMP/M.6570) Commission decision of January 30, 2013.

[8]      United Parcel Service v Commission (Case T-834/17), appeal pending.

[9]      ASL Aviation Holdings and ASL Airlines v. Commission (Case T-540/18), appeal pending.

[10]    European Union v. Gascogne Sack Deutschland and Gascogne (Joined Cases C-138/17 P and C-146 17 P) EU:C:2018:1013. For more details on this judgments see our December 2018 Newsletter.