Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

9 February 2022 (*)

(Competition – Agreements, decisions and concerted practices – European markets in tin stabilisers and in ESBO/esters heat stabilisers – Decision establishing an infringement of Article 81 EC – Decision amending the initial decision annulled – Decision rejecting a request for repayment of the fine – Action for annulment – Actionable measure – Interest in bringing proceedings – Admissibility – Article 266(1) TFEU)

In Case T‑195/19,

GEA Group AG, established in Düsseldorf (Germany), represented by I. du Mont, R. van der Hout and C. Wagner, lawyers,

applicant,

v

European Commission, represented by P. Rossi, V. Bottka and T. Baumé, acting as Agents,

defendant,

APPLICATION pursuant to Article 263 TFEU seeking the annulment of Commission Decision Ares(2019) 283284 final of 24 January 2019 dismissing the request of the applicant seeking repayment of the fine paid under Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/38.589 – Heat stabilisers),

THE GENERAL COURT (Ninth Chamber),

composed of M.J. Costeira, President, M. Kancheva and T. Perišin (Rapporteur), Judges,

Registrar: E. Coulon,

gives the following

Judgment

 Background to the dispute

1        The applicant, GEA Group AG, was created by the merger, in 2005, of Metallgesellschaft AG (‘MG’) and another company. MG was the ultimate parent company which held, before 2000, directly or through subsidiaries, the companies Chemson Gesellschaft für Polymer-Additive mbH (‘OCG’) and Polymer Additive Produktions- und Vertriebs GmbH (‘OCA’).

2        On 17 May 2000, MG sold OCG, which had been renamed Aachener Chemische Werke Gesellschaft für glastechnische Produkte und Verfahren mbH (‘ACW’).

3        Following its dissolution in May 2000, the business of OCA was absorbed, from 30 August 2000, by Chemson Polymer-Additive AG (‘CPA’), which no longer belongs to that group, in respect of which the applicant was the ultimate parent company.

 Case T‑45/10

4        By Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38589 – Heat stabilisers) (‘the 2009 decision’), the European Commission found that a number of undertakings had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating in two sets of agreements and anticompetitive arrangements or concerted practices covering the territory of the EEA and concerning, first, the tin stabiliser sector and, second, the epoxidised soybean oil and esters sector (‘the ESBO/esters sector’).

5        Under Article 1(2)(k) of the 2009 decision, the applicant was held liable for infringements committed in the ESBO/esters sector from 11 September 1991 to 17 May 2000. GEA was held liable for the entire period of infringement, as the successor of MG, for the infringements committed from 11 September 1991 to 17 May 2000 by OCG, and from 13 March 1997 to 17 May 2000 by OCA.

6        In addition, as the successor of OCG, ACW was penalised, first, for the infringement committed by OCG throughout the period of infringement, namely from 11 September 1991 to 17 May 2000, and, second, for the infringement committed by OCA from 30 September 1999 to 17 May 2000, when the latter’s shares were wholly owned by OCG.

7        As the successor of OCA, CPA was penalised, first, for the infringement committed by OCA from 13 March 1997 to 17 May 2000 and, second, for the infringement committed by OCG from 30 September 1995 to 30 September 1999, when the latter’s shares were wholly owned by OCA.

8        As set out in the second paragraph of Article 2 of the 2009 decision:

‘For the infringement(s) in the [ESBO/esters sector] the following fines are imposed:

…

31)      [the applicant], [ACW] and [CPA] are jointly and severally liable for: EUR 1 913 971;

32)      [the applicant] and [ACW] are jointly and severally liable for: EUR 1 432 229;

…’

9        On 28 January 2010, the applicant brought an action requesting the Court to annul the 2009 decision and, in the alternative, to vary the amount of the fine imposed on it.

10      By judgment of 15 July 2015, GEA Group v Commission (T‑45/10, not published, EU:T:2015:507), the Court dismissed the action brought by the applicant. No appeal has been brought against that judgment.

 Case T‑189/10

11      On 15 December 2009, ACW drew the Commission’s attention to the fact that the fine imposed on it pursuant to the 2009 decision exceeded the ceiling of 10% of its total turnover laid down in Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1).

12      On 8 February 2010, the Commission adopted Decision C(2010) 727 final, amending the 2009 decision (‘the 2010 decision’).

13      In that decision, the Commission found that the fine for which ACW has been found to be jointly and severally liable with, on the one hand, the applicant and CPA and, on the other, the applicant, exceeded the ceiling of 10% of its total turnover, with the result that it was necessary to amend the 2009 decision.

14      The Commission also stated that the amount of the fine imposed on the applicant and CPA remained unchanged, but that the amount of the fine imposed on ACW should be reduced and that the 2010 decision would have no consequences for the other addressees of the 2009 decision.

15      Article 1 of the 2010 decision amended the second paragraph of Article 2 of the 2009 decision as follows:

‘Article 2[, point 31,] is replaced by the following text:

“31)      a) [the applicant], [ACW] and [CPA] are jointly and severally liable for EUR 1 086 129;

31)      b) [the applicant] and [CPA] are jointly and severally liable for EUR 827 842”

Article 2[, point 32,] is replaced by the following text:

“32)      [the applicant] is liable for: EUR 1 432 229”’.

16      On 20 April 2010, the applicant brought an action by which it requested the Court to annul the 2010 decision and, in the alternative, to vary the amount of the fine imposed on it.

17      By judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), the Court set aside the 2010 decision, in so far as it concerned the applicant. The Court held that the Commission had infringed the applicant’s rights of defence by adopting the 2010 decision without having first heard the applicant. No appeal has been brought against that judgment.

 Case T‑640/16

18      By letter of 5 February 2016, the Commission informed the applicant of its intention to adopt a new decision and invited ACW, CPA and the applicant to submit written observations.

19      On 24 March 2016, the applicant submitted its observations to the Commission, which responded by letter of 2 May 2016.

20      On 29 June 2016, the Commission adopted Decision C(2016) 3920 final, amending the 2009 decision (‘the 2016 decision’). Article 1 of that decision reproduced identically the terms of Article 1 of the 2010 decision, set out in paragraph 15 above, which amended the second paragraph of Article 2 of the 2009 decision. Article 2 of the 2016 decision set the date by which the fines were due at 10 May 2010.

21      On 22 July 2016, the applicant paid the amount of the fine outstanding after the amounts paid by ACW and CPA, including interest.

22      On 8 September 2016, the applicant brought an action against the 2016 decision. As its principal argument, the applicant requested the Court to annul that decision and, in the alternative, requested the Court to reduce the amount of the fine imposed on it and to set a new date for payment of that fine and for the setting of the starting point for the default interest.

23      By judgment of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700), the Court set aside the 2016 decision in its entirety. First, it held that, by applying the reduction of the amount of the fine granted to ACW only to the fine jointly and severally imposed on the applicant, CPA and ACW, the Commission infringed the principle of equal treatment, without any objective justification. Second, it found that Article 2 of the 2016 decision, which set the date by which the fines were due at 10 May 2010, was vitiated by misuse of power.

 The contested decision

24      On 31 October 2018, the applicant requested the Commission to repay to it the amount of the fine which it had paid on a provisional basis, including interest. In that regard, it noted that the 2016 decision, which is the legal basis for the amounts paid, had been set aside by the Court in its judgment of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700).

25      By letter of 24 January 2019, with the reference Ares (2019) 283284 (‘the contested decision’), the Commission rejected the request for repayment. In the contested decision, the Commission explained, inter alia, that the 2016 decision was not the legal basis for the amounts paid by the applicant. Since that legal basis was the 2009 decision, which was not set aside by the Court, there was no need, according to the Commission, to make such a repayment.

 Case C‑823/18 P

26      On 27 December 2018, the Commission lodged an appeal against the judgment of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700).

27      By judgment of 25 November 2020, Commission v GEA Group (C‑823/18 P, EU:C:2020:955), the Court of Justice set aside the judgment of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700), and referred the case back to the General Court. First, the Court of Justice held that the General Court had erred in law when it held that the Commission had not complied with its obligations under the principle of equal treatment. Second, the Court of Justice held that the General Court had erred in law in holding that the time limit for payment of the fines could be determined only from the date of receipt of notification of the 2016 decision.

 Procedure and forms of order sought

28      By application lodged at the Registry of the General Court on 3 April 2019, the applicant brought the present action.

29      On 19 June 2019, the Commission filed its defence.

30      By decision of 11 July 2019, adopted on the basis of Article 69(d) of the Rules of Procedure of the General Court, the President of the Fifth Chamber of the General Court, having received the observations of the parties, decided to stay the proceedings pending the judgment in Case C‑823 P, Commission v GEA Group.

31      By decision of 17 October 2019, the President of the General Court, in accordance with Article 27(3) of the Rules of Procedure, reassigned the case to a new Judge-Rapporteur, attached to the Ninth Chamber.

32      The stay of proceedings ended with the delivery, on 25 November 2020, of the judgment in Commission v GEA Group (C‑823/18 P, EU:C:2020:955).

33      On 2 December 2020, the parties were requested to submit any observations they might have on the consequences, for the present action, of the judgment of 25 November 2020, Commission v GEA Group (C‑823/18 P, EU:C:2020:955). The parties complied with that measure of organisation of procedure within the prescribed period. In its observations, the applicant requested the General Court to stay the proceedings pending the judgment in Case T‑640/16 RENV, GEA Group v Commission.

34      On 13 January 2021, the President of the Ninth Chamber of the General Court, having received the Commission’s observations, decided not to stay the proceedings.

35      By decision of the President of the Ninth Chamber of 12 August 2021, following the death of Judge Berke on 1 August 2021, a new judge was appointed to complete the panel of judges.

36      The General Court (Ninth Chamber) decided, in accordance with Article 106(3) of the Rules of Procedure, to rule on the action without an oral part of the procedure.

37      The applicant claims that the Court should:

–        annul the contested decision;

–        order the Commission to pay the costs.

38      The Commission contends that the Court should:

–        dismiss the action as inadmissible or, in the alternative, as unfounded;

–        order the applicant to pay the costs.

 Law

 The pleas of inadmissibility raised by the Commission

39      Without formally raising a plea of inadmissibility, the Commission maintains that the action is inadmissible.

40      First, the Commission maintains that the contested decision does not constitute a challengeable act. In that regard, it states that, in adopting the contested decision, it produced no additional or autonomous effect as compared with the effects following from the 2009 decision, nor did it affect the applicant’s interests by bringing about a distinct change in its legal position as provided for in Article 263 TFEU. The present action is therefore, in the view of the Commission, inadmissible in so far as the contested decision is a mere confirmatory act of the 2009 decision. The applicant has already challenged the 2009 decision in the case which gave rise to the judgment of 15 July 2015, GEA Group v Commission (T‑45/10, not published, EU:T:2015:507), which has acquired the force of res judicata. According to the Commission, if the General Court were to consider the action admissible, that would amount to disregarding the applicable time limits and infringing the principle of legal certainty.

41      Second, the Commission submits, in essence, that the applicant no longer has an interest in bringing proceedings against the contested decision, given that the judgment of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700), was set aside on appeal and imposes no obligation on the Commission, since its effects were removed ex tunc from the legal order by the judgment of 25 November 2020, Commission v GEA Group (C‑823/18 P, EU:C:2020:955).

42      The applicant disputes the Commission’s arguments.

43      In those circumstances, it is necessary to examine the pleas of inadmissibility raised by the Commission.

44      In the first place, as regards whether the contested decision is a challengeable act, it should be recalled that, according to established case-law, any provisions adopted by the institutions, whatever their form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in its legal position are regarded as ‘challengeable acts’ for the purposes of Article 263 TFEU (see judgment of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 31 and the case-law cited).

45      In the present case, it is apparent from the clear and unambiguous wording of the contested decision that the Commission refused to repay the fine paid by the applicant while also stating that the applicant had no right to such repayment. It follows that that decision can have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in its legal position. Furthermore, it is common ground that the contested decision expresses the Commission’s definitive position, as the Commission confirmed expressly in a letter of 29 March 2019.

46      The above finding cannot be called into question by the Commission’s argument that the contested decision is a measure which merely confirms the 2009 decision.

47      According to settled case-law, a measure is regarded as merely confirmatory of a previous measure if the measure at issue contains no new factor as compared with the previous measure and was not preceded by a re-examination of the circumstances of the person to whom that measure was addressed (see judgment of 13 November 2014, Spain v Commission, T‑481/11, EU:T:2014:945, paragraph 28 and the case-law cited).

48      Clearly, the issue of whether a measure is confirmatory measure does not even arise in cases where the content of the subsequent measure differs from that of the earlier measure (judgment of 13 November 2014, Spain v Commission, T‑481/11, EU:T:2014:945, paragraph 30).

49      In the present case, it should be noted that the content of the contested decision is not the same as that of the 2009 decision. In the 2009 decision, the Commission observed that a number of undertakings, including the applicant, had infringed Article 81 EC and Article 53 of the EEA Agreement, and imposed fines on the undertakings concerned in respect of the infringements found. By contrast, in the contested decision, the Commission did not make an infringement finding nor did it impose a fine. That decision constitutes a response to the applicant’s letter of 31 October 2018 in which it had requested repayment of the fine which it had already paid in view of the judgment of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700). The contested decision therefore expresses the Commission’s position on the question whether it was obliged to repay the fine paid, a position which did not appear at all in the 2009 decision.

50      In so far as the contested decision is not a measure which merely confirms the 2009 decision, the fact of declaring the action admissible in the present case does not amount, contrary to the Commission’s assertion, to disregarding the applicable time limits for bringing proceedings. In that regard, it must be recalled, that it is apparent from the very wording of Article 263 TFEU, as from its purpose which is to guarantee legal certainty, that a measure which has not been challenged within the time limit for bringing proceedings becomes definitive. That definitive nature concerns not only the measure itself, but also any later measure which is merely confirmatory (judgment of 13 November 2014, Spain v Commission, T‑481/11, EU:T:2014:945, paragraph 27).

51      Since the contested decision is not a measure which merely confirms the 2009 decision, the time limits for bringing proceedings applicable in the present case are not affected by the time limits for bringing an action against the latter decision. The fact that the 2009 decision has acquired the force of res judicata does not therefore affect the question whether the appeal in the present case complies with the applicable time limits for bringing proceedings. Furthermore, it is not disputed that the action in the present case was brought within two months of the notification of the contested decision to the applicant, as provided for in the final paragraph of Article 263 TFEU.

52      In the second place, as regards the applicant’s interest in bringing proceedings, it must be borne in mind that, according to settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (see judgment of 20 December 2017, Binca Seafoods v Commission, C‑268/16 P, EU:C:2017:1001, paragraph 44 and the case-law cited).

53      That interest in bringing proceedings must be vested and present and is evaluated as at the date on which the action is brought. It must however continue until the final decision, failing which there will be no need to adjudicate (see, to that effect, judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 42).

54      In the present case, it must be stated that setting aside the contested decision is capable of procuring an advantage for the applicant. In the contested decision, the Commission refused to repay the fine paid by the applicant. Consequently, setting aside that decision could have the consequence of obliging the Commission to repay that fine, which would procure an advantage for the applicant.

55      In addition, contrary to the Commission’s assertion, the applicant’s interest in bringing proceedings continues to exist following the delivery of the judgment of 25 November 2020, Commission v GEA Group (C‑823/18 P, EU:C:2020:955).

56      First, it is common ground that the contested decision was not the subject of the matter which gave rise to the judgment of 25 November 2020, Commission v GEA Group (C‑823/18 P, EU:C:2020:955), and was not, therefore, set aside by that judgment. It follows that the action has retained its purpose.

57      Second, in the judgment of 25 November 2020, Commission v GEA Group (C‑823/18 P, EU:C:2020:955), the Court of Justice did not give a ruling on whether, on the date on which the contested decision was adopted, the Commission was entitled to refuse repayment of the fine paid by the applicant in the light of the judgment of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700).

58      Third, it is apparent from the case-law that an applicant may retain an interest in claiming the annulment of an act of an EU institution to prevent its alleged unlawfulness recurring in the future (judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 50). In the present case, it cannot be ruled out that the General Court will set aside the 2016 decision in Case T‑640/16 RENV, GEA Group v Commission, and that the unlawfulness which, according to the applicant, vitiates the contested decision on account of the setting aside of the 2016 decision will recur in the future. The applicant therefore retains an interest in challenging the legality of the contested decision in the light of the 2016 decision having been set aside, which is justified by the objective of preventing the unlawfulness of which it forms part from recurring in the future.

59      In those circumstances, the plea of inadmissibility raised by the Commission must be rejected.

 Substance

60      In support of the action, the applicant relies on two pleas in law, alleging, first, infringement of Article 266 TFEU on account of the Commission’s refusal to repay the fine paid by the applicant and, second, infringement of Article 266 TFEU on account of applying the 2009 decision to the applicant and the 2010 decision to ACW and CPA.

61      Before examining the pleas raised by the applicant, it is necessary to analyse the consequences for the action of the judgment of 25 November 2020, Commission v GEA Group (C‑823/18 P, EU:C:2020:955).

 Preliminary observations on the consequences of the judgment of 25 November 2020, Commission v GEA Group (C‑823/18 P)

62      The Commission maintains that, following the Court of Justice setting aside the judgment of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700), upon which the action is solely and uniquely based, the action ought to be dismissed as manifestly lacking any foundation in law, on the basis of Article 126 of the Rules of Procedure.

63      In that regard, it must be stated that the applicant maintains that the contested decision was unlawful on the date on which it was adopted, namely 24 January 2019, on account of the setting aside of the 2016 decision by the judgment of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700). That date precedes the judgment of 25 November 2020, Commission v GEA Group (C‑823/18 P, EU:C:2020:955), by more than 22 months. The adoption of the latter judgment does not therefore automatically make redundant the question whether, at the time when the contested decision was adopted, the Commission could reasonably refuse to repay the fine paid by the applicant. It follows that the arguments concerning the alleged unlawfulness of that decision during the period preceding the adoption of that judgment have not manifestly become without legal basis following its delivery.

64      In addition, it should be noted that the Commission is not entitled to claim that action in the present case is based solely and uniquely on the judgment of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700). It must be stated that, in its second plea in law, the applicant also claims that the Commission failed to comply with another judgment of the General Court, namely the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504). That judgment was not set aside by the Court of Justice. It follows that the action as a whole has not manifestly become without legal basis following the delivery of the judgment of 25 November 2020, Commission v GEA Group (C‑823/18 P, EU:C:2020:955).

65      It is therefore necessary to reject the Commission’s arguments seeking to demonstrate that the action is manifestly lacking any foundation in law following the Court of Justice setting aside the judgment of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700).

 The first plea in law: infringement of Article 266 TFEU on account of the refusal to repay the fine paid by the applicant

66      By its first plea, the applicant maintains, in essence, that the contested decision infringes Article 266 TFEU in that the Commission refused to repay to it the fine which it had paid following the General Court setting aside the 2016 decision.

67      The applicant submits that, since it paid the relevant amounts in execution of the 2016 decision and since that decision was set aside in its entirety by the General Court, the Commission is obliged to repay the fine, together with interest on it.

68      According to the applicant, it is clear that it paid the fine in question in execution of the 2016 decision. In an email of 19 July 2016, it stated expressly that it intended to pay it pursuant to the operative part of the 2016 decision and stated that it wished to pay it on a provisional basis while the action for annulment of the 2016 decision was pending. The applicant even indicated its understanding that the amounts would be repaid to it, including interest accrued, depending on the outcome of the proceedings before the General Court.

69      The Commission confirmed to the applicant that it had understood the provisional nature of the payment. In its email of 20 July 2016, the Commission made a clear reference to the 2016 decision and suggested splitting the payment in accordance with the different amounts imposed by the 2016 decision. The applicant’s view is that, in so doing, the Commission created a legitimate expectation that the fine would be repaid if the General Court were to set aside the 2016 decision.

70      The applicant argues that the obligation incumbent on the Commission to implement the judgment of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700), was not suspended by it being the subject of an appeal because, in accordance with Article 60 of the Statute of the Court of Justice of the European Union, the appeal does not have suspensory effect. The Commission does not explain why it made reference in the contested decision to the fact that it had lodged an appeal against that judgment nor how that appeal could have influenced the applicant’s right to claim repayment.

71      According to the applicant, the 2009 decision is not a legal basis which permits the Commission to retain the amount of the fine in question. The Commission erred in finding in the contested decision that the payment made by the applicant was made in execution of the 2009 decision.

72      The applicant also observes that the Commission cannot retain the amount of the fine paid by the applicant by way of offset. As the 2009 decision is not a legal basis for claiming the payment of that fine, the Commission would not be in a position to offset the applicant’s claim, namely for repayment of the fine paid in execution of the 2016 decision, against its own claims based on the 2009 decision. In addition, the Commission has never informed the applicant of its intention to offset the applicant’s claim against its own claims.

73      The Commission disputes those arguments.

74      As set out in Article 266 TFEU, the institution, body, office or entity whose act has been declared void is required to take the necessary measures to comply with the judgment setting aside the measure.

75      According to settled case-law, the annulment of a measure by the General Court has the effect of retroactively eliminating that measure from the legal system (see judgment of 20 June 2018, České dráhy v Commission, T‑621/16, not published, EU:T:2018:367, paragraph 38 and the case-law cited).

76      In the present case, it should be noted in the first place that the applicant errs in submitting that the 2016 decision is the legal basis for the payments which it made. That basis is, by contrast, the 2009 decision, which has become definitive, since the General Court dismissed the action brought against that decision by the applicant in the judgment of 15 July 2015, GEA Group v Commission (T‑45/10, not published, EU:T:2015:507), and the applicant did not bring an appeal against that judgment.

77      In that regard, it must be stated that, in Article 2 of the 2009 decision, the Commission imposed fines on the undertakings concerned, including the applicant. More specifically, in points 31 and 32 of the second paragraph of Article 2 of that decision, the Commission imposed a fine of EUR 3 346 200, for which the applicant was in part jointly and severally liable with ACW and CPA and in part jointly and severally liable with ACW. That decision was not repealed or replaced by the 2016 decision, which was merely an amending decision, which did no more than make a number of amendments to Article 2 of the 2009 decision. In that regard, it must be stated that those amendments do not concern the amount of the fine to be paid by the applicant, an amount which was definitively fixed by the Commission in the 2009 decision, but rather the determination of the joint and several liability.

78      That finding is upheld by the Court of Justice in the judgment of 25 November 2020, Commission v GEA Group (C‑823/18 P, EU:C:2020:955). In paragraph 110 of that judgment, the Court of Justice held that the amendment made to points 31 and 32 of the second paragraph of Article 2 of the 2009 decision, first by the 2010 decision, which has since been annulled, and then by the 2016 decision, concerned only the amount of the fine imposed on ACW and the reapportionment of joint and several liability, but did not affect the imposition of the fine as such or the total amount of that fine. It concluded that, contrary to what the General Court had held in paragraph 126 of the judgment of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700), it is Article 2 of the 2009 decision which is the legal basis for the obligation to pay the fine which is incumbent on the applicant, ACW and CPA, and not Article 1 of the 2016 decision.

79      In addition, the Court of Justice confirmed that the Commission was entitled to conclude that the applicant, ACW and CPA formed a single undertaking at the time of the infringement at issue and that it was entitled to determine the maximum amounts of the fine for which the applicant, ACW and CPA could be held jointly and severally liable for payment of a single fine as entities forming part of one and the same undertaking to which the infringement at issue is imputable (judgment of 25 November 2020, Commission v GEA Group, C‑823/18 P, EU:C:2020:955, paragraphs 70 and 72).

80      In so far as the 2009 decision is the legal basis for the obligation on the applicant to pay the fine in question, that fine was due from the applicant independently of the amendments made by the 2016 decision, amendments which affected neither the imposition of that fine as such, nor its amount. It follows that the Commission was entitled to refuse to repay the fine paid on a provisional basis by the applicant following the General Court setting aside the 2016 decision.

81      The mere fact, if it were established, that the applicant intended to pay the fine paid on the basis of the 2016 decision and not on the basis of the 2009 decision changes nothing in that regard.

82      Moreover, as the Commission correctly states, the sums paid by the applicant corresponded to the amount remaining to be paid of the fine which was imposed on the applicant by the 2009 decision, in part jointly and severally with ACW and CPA, after the payments made by ACW and CPA.

83      Furthermore, the applicant’s argument that the appeal brought by the Commission against the judgment of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700), did not have suspensory effect must be rejected as ineffective. Since that judgment does not concern the legality of the 2009 decision, which is the legal basis for the obligation on the applicant to pay the fine in question, the effects of the appeal against that judgment, or the absence of such effects, can have no impact on that obligation.

84      In addition, the applicant’s argument that the Commission cannot retain the amount of the fine paid by way of offset must be rejected. Since the 2009 decision is the legal basis permitting the Commission to claim payment of the fines in question by the applicant and since the applicant cannot rely on any claim against the Commission, the question of possible offsetting does not arise in the present case.

85      In the second place, it is necessary to examine whether the Commission gave rise to a legitimate expectation that it would repay the fine paid on a provisional basis by the applicant if the General Court were to set aside the 2016 decision.

86      In that regard, it must be recalled that the right to rely on the principle of the protection of legitimate expectations presupposes that precise, unconditional and consistent assurances originating from authorised, reliable sources have been given to the person concerned by the competent authorities of the European Union. By contrast, a person may not plead breach of that principle unless he or she has been given those assurances (judgment of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 75 and the case-law cited).

87      In the present case, it must be stated that, in an email of 19 July 2016 sent to the Commission, the applicant stated that it had decided to make payment on a provisional basis of the total amount of the fine due and that, depending on the outcome of the legal proceedings which it had initiated against the 2016 decision, ‘the amount will be either be kept by the [Commission] or reimbursed, including interests, partly or in full, to the addressee of the decision’. It is therefore apparent from that email that, in the applicant’s understanding, the payments were made on the basis of the 2016 decision.

88      In response to that email, the Commission replied, in an email of 20 July 2016, that the fines could be paid on a provisional basis and that the bank details were those specified in Article 2 of the 2016 decision. In addition, in that email, the Commission suggested that the applicant make three corresponding payments, indicating three amounts to be paid, followed by the references ‘fine 31a’, ‘fine 31b’, ‘fine 32’ respectively. As the Commission acknowledges, those are references to points 31(a), 31(b) and 32 of the 2016 decision, since those paragraphs do not appear in the 2009 decision, which provided for only two amounts in its points 31 and 32.

89      However, that reference by the Commission to points 31(a), 31(b) and 32 of the 2016 decision was justified, given that the 2016 decision had carried out a redetermination of the joint and several liability of the fine imposed by the 2009 decision and that reference cannot be understood as a precise assurance that the 2016 decision was the legal basis for the fine paid by the applicant. Similarly, the fact that the Commission accepted payment on a provisional basis of the fine cannot constitute such a precise assurance.

90      In addition, it must be stated that, in earlier letters dated 18 December 2015, 20 January 2016, 5 February 2016 and 23 February 2016 respectively, the Commission had stated clearly that the 2009 decision was the legal basis for the fine to be paid by the applicant.

91      In those circumstances, in the light of the absence of precise, unconditional and consistent assurances given by the Commission, the applicant cannot plead infringement of the principle of the protection of legitimate expectations.

92      In the light of the foregoing, the first plea in law must be rejected.

 The second plea in law: infringement of Article 266 TFEU on account of applying the 2009 decision to the applicant and the 2010 decision to ACW and CPA

93      By its second plea, the applicant maintains, in essence, that the Commission infringed Article 266 TFEU in so far as, by applying the 2009 decision solely to the applicant and not to ACW and CPA, the Commission is in fact perpetuating the liability provided for by the 2010 and 2016 decisions even though they had been set aside by the General Court at the time the contested decision was adopted.

94      According to the applicant, the Commission cannot apply the 2009 decision to ACW and CPA, since the 2010 decision became final in relation to them because the General Court, in its judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), set aside the 2010 decision only in so far as it concerned the applicant. In addition, applying the 2009 and 2010 decisions to ACW and CPA would run counter to the principle ne bis in idem.

95      In the applicant’s view, the Commission acknowledged in its 2016 decision that there were compelling reasons for not applying the 2009 decision to the applicant and those overriding reasons continue to be valid. However, the Commission ignores those reasons by applying the 2009 decision to the applicant without giving valid legal reasons for doing so.

96      If the Commission applied the 2009 decision only to the applicant and not to ACW, it would follow that the applicant would be exclusively liable for that fine. The applicant would thus be liable to pay the fines as if the Commission applied the 2010 decision to it. By making the applicant subject to the same conditions as those in the 2010 decision and the 2016 decision as regards the liability for the fines, in the applicant’s view, the Commission undermines the judgments of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), and of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700).

97      The Commission disputes those arguments and contends that the second plea should be rejected.

98      In the first place, it must be stated that the contested decision concerns only the repayment of the fine paid by the applicant and not those imposed on ACW and CPA. The fines imposed on ACW and CPA stem from the 2009 decision, as amended by the 2010 decision, and do not form the subject matter of the contested decision.

99      Consequently, in so far as the second plea relates to the fines imposed on ACW and CPA, it must be rejected as ineffective.

100    In the second place, it follows from the examination of the first plea that, in the contested decision, the Commission relied on the 2009 decision and not on the 2010 and 2016 decisions. Since the 2009 decision is the legal basis for the fine imposed on the applicant, the Commission could reasonably refuse to repay that fine, irrespective of the amendments made to that decision by the 2010 and 2016 decisions.

101    Furthermore, contrary to the applicant’s assertions, the Commission did not acknowledge in the 2016 decision that there were compelling reasons for not applying the 2009 decision to it. By contrast, in the 2016 decision, the Commission confirmed expressly that the 2009 decision was the legal basis for the fine imposed on the applicant.

102    Furthermore, contrary to the applicant’s assertion, the contested decision complies with the judgment of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700), in which the General Court set aside the 2016 decision. In the contested decision, the Commission did not rely on the 2016 decision. By contrast, in that decision, the Commission, after expressly acknowledging that the 2016 decision had been set aside by the General Court, was entitled to find that the 2009 decision was the legal basis for the fine paid by the applicant, as is apparent from the examination of the first plea.

103    In the contested decision, the Commission also had due regard to the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), by which the General Court set aside the 2010 decision in so far as it concerned the applicant. In that regard, it is sufficient to note that the Commission did not argue, in the contested decision, that it could apply the 2010 decision to the applicant, a decision which it did not even mention in the contested decision.

104    In those circumstances, the second plea must be rejected and, consequently, the action must be dismissed in its entirety.

 Costs

105    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders GEA Group AG to bear its own costs and to pay those incurred by the European Commission.

Delivered in open court in Luxembourg on 9 February 2022.

*      Language of the case: English.

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