Advocate General’s Opinion - 21 July 2016, Commission / Total et Elf Aquitaine, Case C-351/15 P, Advocate General: Wahl

OPINION OF ADVOCATE GENERAL
WAHL
delivered on 21 July 2016 (1)
Case C-351/15 P
European Commission
v
Total SA,
Elf Aquitaine SA
(Appeal — Competition — Agreements, decisions and concerted practices — Methacrylates market — Fines — Joint and several liability of parent companies and their subsidiary for the latter’s unlawful conduct — Immediate payment of the fine in full by the subsidiary — Reduction of the subsidiary’s fine following a judgment of the General Court of the European Union — Letters from the European Commission’s accounting officer demanding payment by the parent companies of the amount repaid by the Commission to the subsidiary, together with default interest — Actions for annulment — Challengeable acts — Effective judicial protection)




1. By this appeal the European Commission seeks the annulment of the judgment of 29 April 2015 in Total and Elf Aquitaine v Commission, (2) by which the General Court of the European Union partially annulled the Commission’s letters (3) relating to payment by Total SA and Elf Aquitaine (‘the respondents’) of the fine and default interest payable as a result of Commission Decision C(2006) 2098 final. (4)
2. In this case the Court must in particular determine whether — and, if necessary, to what extent — letters from the Commission’s accounting officer demanding from parent companies payment, with default interest, of fines which had been imposed on them jointly and severally with their subsidiary for infringement of the rules on competition, following the reduction and partial repayment of those fines in respect of the subsidiary which had initially paid them, constitute challengeable acts. The question arises, more specifically, whether such letters adversely affect those undertakings in that they brought about a change in their legal position compared with the Commission’s original decision, because they seemingly impose an additional charge on them compared with that decision. The Court must thus clarify, in the light of the principle of effective judicial protection, the division of jurisdiction conferred on the European Union courts and on the national court respectively in reviewing measures for recovery of fines.
I - Background to the proceedings
3. The background to the proceedings was set out by the General Court in paragraphs 2 to 28 of the judgment under appeal as follows:
‘2 By [the Methacrylates decision], the Commission of the European Communities imposed a fine of EUR 219 131 250 on Arkema SA and its subsidiaries Altuglas International SA and Altumax Europe SAS (taken together, “Arkema”) jointly and severally for participating in a cartel (“the original fine”).
3 The [respondents], which, during the period of the infringement found in the Methacrylates decision, were the parent companies of Arkema, were found liable jointly and severally for payment of the original fine to the extent of EUR 181 350 000 and EUR 140 400 000 respectively.
4 On 7 September 2006 Arkema paid the original fine in full and subsequently brought an action against the Methacrylates decision (“Methacrylates judicial proceedings”), as did the [respondents], simultaneously and independently.
Methacrylates judicial proceedings before the General Court
5 On 4 and 10 August 2006 respectively the [respondents] and Arkema brought an action for the annulment of the Methacrylates decision.
6 In Case T-206/06 the [respondents] claimed primarily that the Methacrylates decision should be annulled.
7 Alternatively they also claimed that the original fine imposed jointly and severally on Arkema and themselves should be reduced.
8 On 24 July 2008 the Commission wrote a letter to Arkema asking it to confirm that its payment of 7 September 2006 had been made “on behalf of all the debtors jointly and severally liable”, adding that, first, “without such confirmation and if the [Methacrylates] decision is annulled in relation to the undertaking on whose behalf the payment was made”, it, the Commission, would “repay the sum of EUR 219 131 250 with interest” and, secondly, that “if all or part of the fine is upheld by the Court of Justice in relation to any of the other joint and several debtors” it “[would] demand from that debtor any sum remaining due plus default interest at the rate of 6.09%”.
9 By letter of 25 September 2008, Arkema informed the Commission that it had paid the sum of EUR 219 131 250 “in its capacity as joint and several debtor and that, since that payment, the Commission [had] received full satisfaction as against Arkema and as against all the other joint and several debtors”. To that extent Arkema “regretted that it [was] unable to authorise the Commission to retain any sum whatever should its action before the Community court [be] crowned with success”.
10 On 24 November 2008 the Commission wrote to the [respondents] to inform them of Arkema’s letter of 25 September 2008 and of the fact that Arkema had refused to complete the common payment declaration submitted by the Commission.
11 The [respondents’] action was dismissed by judgment of 7 June 2011, Total and Elf Aquitaine v Commission (T-206/06, EU:T:2011:250).
12 On the other hand, the action brought separately by Arkema against the Methacrylates decision was partly upheld by the judgment of 7 June 2011, Arkema France and Others v Commission (T-217/06, EU:T:2011:251), in so far as the fine imposed on Arkema was reduced to EUR 113 343 750.
13 In the judgment [of 7 June 2011, Arkema France and Others v Commission (T-217/06, EU:T:2011:251)], the Court found that, in the exercise of its unlimited jurisdiction, the increase in the fine applied to Arkema as a deterrent should be reduced in order to take account of the fact that, on the day on which the fine was imposed, Arkema was no longer controlled by the [respondents] (judgment [of 7 June 2011, Arkema France and Others v Commission (T-217/06, EU:T:2011:251], paragraphs 338 and 339)).
14 No appeal was lodged against the judgment [of 7 June 2011, Arkema France and Others v Commission (T-217/06, EU:T:2011:251)], so that it has acquired the binding authority of a judgment which has become final.
15 The Commission repaid Arkema, with value date of 5 July 2011, a total of EUR 119 247 033.72 (principal amount of EUR 105 787 500 plus interest of EUR 13 459 533.72).
Letters [at issue]
Letter of 24 June 2011
16 In the letter of 24 June 2011, the Commission informed the [respondents] that, “in compliance with the judgment [of 7 June 2011, Arkema France and Others v Commission (T-217/06, EU:T:2011:251), it] would repay Arkema the amount of the reduction in the fine decided upon by the Court”.
17 In the same letter of 24 June 2011, the Commission also asked the [respondents] “at the same time, should an appeal be lodged before the Court of Justice against the judgment [of 7 June 2011, Total and Elf Aquitaine v Commission (T-206/06, EU:T:2011:250)], for payment of the amount outstanding, together with default interest at the rate of 6.09% from 8 September 2006”, that is to say, EUR 68 006 250, for the payment of which Total was held “jointly and severally” liable as to EUR 27 056 250 plus default interest, that is to say, a total of EUR 88 135 466.52.
18 By letter of 29 June 2011 to the Commission, the [respondents] contended, in substance, that the Commission had “received full satisfaction” since 7 September 2006 and they put various questions to the Commission for clarification of several points in the letter of 24 June 2011.
Letter of 8 July 2011
19 By the letter of 8 July 2011, the Commission replied in particular, that, “contrary to the [respondents’] understanding, [the Commission] would certainly not waive recovery of the amounts due if [the respondents] refrained from lodging an appeal before the Court of Justice”, adding that “[the respondents’] liability was not extinguished by the retention/deduction of the sums mentioned by the judgment [of 7 June 2011, Arkema France and Others v Commission (T-217/06, EU:T:2011:251)], and paid by Arkema”.
20 In the same letter the Commission admitted that it had been mistaken as to the amount which it intended to claim and added that the amount due from Elf Aquitaine, pursuant to the Methacrylates decision and also [the judgments of 7 June 2011, Total and Elf Aquitaine v Commission (T-206/06, EU:T:2011:250), and of 7 June 2011, Arkema France and Others v Commission (T-217/06, EU:T:2011:251)], was EUR 137 099 614.58, including default interest of EUR 31 312 114.58 (“default interest”), for which Total was jointly and severally liable as to EUR 84 028 796.03.
21 In the letter of 8 July 2011 the Commission added that, if the [respondents] were to appeal against judgment [of 7 June 2011, Total and Elf Aquitaine v Commission (T-206/06, EU:T:2011:250)], it would be open to them to provide a bank guarantee rather than to pay the fine.
22 On 18 July 2011 the [respondents] paid the Commission the sum demanded in the letter of 8 July 2011, that is to say, EUR 137 099 614.58.
Methacrylates judicial proceedings before the Court of Justice on appeal
23 On 10 August 2011 the [respondents] lodged an appeal against the judgment [of 7 June 2011, Total and Elf Aquitaine v Commission (T-206/06, EU:T:2011:250)].
25 The appeal was dismissed by order of 7 February 2012, Total and Elf Aquitaine v Commission (C-421/11 P, [not published], EU:C:2012:60), the Court of Justice having dismissed all the [respondents’] claims.
28 On the alternative claims seeking exemption from the payment of default interest, the Court of Justice found as follows:
“89 This claim must be dismissed as manifestly inadmissible in that it is directed, not … against the judgment [of 7 June 2011, Total and Elf Aquitaine v Commission (T-206/06, EU:T:2011:250)], but against the … letter [of 8 July 2011] which is, furthermore, the subject of an action of the [respondents] before the General Court, lodged at the registry of that Court under number T-470/11”.’
II - Procedure before the General Court and the judgment under appeal
4. By application lodged at the Registry of the General Court on 1 September 2011, the respondents brought an action for the annulment of the letters at issue before the General Court, claiming, alternatively, that the Court should reduce the sums demanded therein and, in the further alternative, annul the interest demanded therein.
5. By separate document lodged at the Registry of the General Court on 17 November 2011, the Commission raised an objection of inadmissibility under Article 114 of the Rules of Procedure of the General Court. It claimed in particular that the letters at issue were unchallengeable acts in so far as they had no binding legal effect likely to affect the respondents and that the respondents’ payment obligation arose from the Methacrylates decision alone.
6. In the judgment under appeal, the General Court first examined that objection of inadmissibility in paragraphs 72 to 101.
7. The General Court held, in particular, that so far as the principal amount demanded from the respondents in the letters at issue was concerned, the letters had not affected the respondents’ interests by bringing about a distinct change in their legal position within the meaning of Article 263 TFEU following the Methacrylates decision.
8. On the other hand, with regard to the obligation to pay default interest, the General Court considered that that obligation did not arise at all from that decision, or from the judgments of 7 June 2011 in Total and Elf Aquitaine v Commission (T-206/06, EU:T:2011:250) and 7 June 2011 in Arkema France and Others v Commission (T-217/06, EU:T:2011:251), because Arkema had paid the whole of the original fine immediately after the decision, so that the disputed act did alter their legal position by increasing the amount due from the respondents under the Methacrylates decision.
9. The General Court therefore found the action to be admissible in that it was directed against the default interest demanded from the respondents in the letters at issue.
10. Second, in paragraphs 107 to 118 of the judgment under appeal, the General Court examined the substance of the action in so far as it was directed against the default interest demanded from the respondents and upheld the action to that extent.
11. Consequently, the General Court annulled the letters at issue in that the Commission demanded default interest from the respondents and dismissed the remainder of the action.
III - Forms of order sought and procedure before the Court of Justice
12. The Commission claims that the Court should:
- set aside the judgment under appeal;
- declare the action brought before the General Court inadmissible, and
- order the respondents to pay all the costs, including those pertaining to the proceedings before the General Court.
13. The respondents contend that the Court should:
- dismiss the appeal, and
- order the Commission to pay the costs.
14. By decision of the President of the Court of Justice of 17 February 2016, the EFTA Surveillance Authority was granted leave to intervene in support of the form of order sought by the Commission. However, because the application to intervene was not made until after the period prescribed in Article 190(2) of the Rules of Procedure of the Court of Justice had expired, that party was allowed, pursuant to Article 129(4) of the Rules of Procedure, to submit its observations only during the hearing which was held on 9 June 2016.
IV - Analysis of the appeal
15. In support of its appeal, the Commission raised three grounds of appeal, alleging respectively, first, that the General Court erred in law in taking the view that the letters at issue produced binding legal effects, second, a breach of the principles of lis pendens and res judicata and, third, contradictory reasoning.
A - The first ground of appeal, alleging that the General Court erred in law in taking the view that the letters at issue produced binding legal effects
1. Arguments of the parties
16. The Commission claims that the General Court erred in law in concluding that the letters at issue produced binding legal effects likely to affect the interests of the respondents. It refers specifically to the statements made in paragraphs 81 to 87 of the judgment under appeal.
17. The ground of appeal can be broken down into three parts.
18. In the first part, the Commission asserts that the letters at issue are mere requests for payment in implementation of the Methacrylates decision, paving the way for the potential enforcement of that decision following the judgments of 7 June 2011 in Total and Elf Aquitaine v Commission (T-206/06, EU:T:2011:250) (upholding the fines imposed on the respondents) and of 7 June 2011 in Arkema France and Others v Commission (T-217/06, EU:T:2011:251) (reducing the fines imposed on Arkema). However, those letters do not yet constitute an ‘enforcement measure’ and therefore do not set out a final position of the Commission.
19. By the second part of the first ground of appeal, the Commission argues that the content of the letters at issue shows that they do not produce binding legal effects. Those letters express the opinion of the accounting officer’s services regarding the recovery of the fine imposed by the Methacrylates decision and merely set out the terms for payment or ‘coverage of the fine to date’, which is clearly a measure taken in the context of the enforcement of that decision.
20. By the third part of the first ground of appeal, the Commission claims that the letters at issue did not add anything to the content of the Methacrylates decision. The respondents’ obligation to pay the fine and accessory interest is — and can only be — the result of the Methacrylates decision, read in the light of the judgments of 7 June 2011 in Total and Elf Aquitaine v Commission (T-206/06, EU:T:2011:250) and 7 June 2011 in Arkema France and Others v Commission (T-217/06, EU:T:2011:251 and of the order of 7 February 2012 in Total and Elf Aquitaine v Commission (C-421/11 P, not published, EU:C:2012:60). The Commission emphasises that it has no discretion in this regard, for the fixing of default interest flows from the relevant provisions of Regulation (EU, Euratom) No 966/2012 (5) and its rules of application, Delegated Regulation (EU) No 1268/2012. (6) In other words, the letters at issue merely reflect the Commission’s intention to enforce the Methacrylates decision and do not produce any legal effects other than those of that decision. Those acts cannot be separated from the decision for whose implementation they prepare.
21. The respondents assert that the first ground of appeal should be rejected as inadmissible in part and unfounded in part.
22. The respondents submit that the second and third parts of the ground of appeal essentially reproduce arguments that have already been made before the General Court — to which a response was given in paragraphs 82 to 87 of the judgment under appeal — and that they do not seek to show that the General Court erred in law in its assessments. Those parts should therefore be rejected as being manifestly inadmissible in the present appeal.
23. The first part of the first ground of appeal should, in the view of the respondents, be rejected as unfounded.
24. In this case, it follows from the relevant provisions of the Financial Regulation (see in particular Article 78(4)) and its rules of application, Delegated Regulation No 1268/2012 (see Articles 80 and 83), and from the Court’s case-law that the ratio legis of fixing default interest where a fine is imposed for infringement of Articles 101 and 102 TFEU is to ensure that the effectiveness of the provisions of the FEU Treaty is not frustrated by practices unilaterally employed by undertakings late in paying the fine imposed on them and that those undertakings are not placed at an advantage compared with those that have paid their fines within the prescribed period.
25. In these circumstances, and as the Commission has acknowledged, moreover, the respondents had clearly paid the fine which had been imposed on them before the period prescribed had expired. Therefore, on the date of the letters at issue, after the judgments of 7 June 2011 in Total and Elf Aquitaine v Commission (T-206/06, EU:T:2011:250) and 7 June 2011 in Arkema France and Others v Commission (T-217/06, EU:T:2011:251), but before the appeal to the Court of Justice, there was no legal basis for demanding the sum of EUR 31 312 114.58 in default interest from the respondents.
26. Consequently, those letters do not simply confirm the measures taken by the Commission in respect of default interest in Article 23 of the Methacrylates decision. The letters contain a new element, namely the imposition of interest on the respondents in the absence of any serious delay, or even any allegation of such a delay.
2. Assessment
a) The admissibility of the ground of appeal
27. As the respondents have formally challenged the admissibility of the second and third parts of the first ground of appeal, it must be ascertained whether, as they claim, the arguments expounded by the Commission in those parts simply reiterate arguments already put forward before the General Court, which may not be re-examined in the present appeal.
28. It cannot be denied that in connection with its first ground of appeal the Commission has actually reproduced a number of arguments made in the objection of inadmissibility it raised before the General Court in the proceedings giving rise to the judgment under appeal.
29. Nevertheless, the Commission seeks precisely to call into question the legal reasoning which led the General Court to conclude that the letters at issue were capable of producing binding legal effects such as to bring about a change in the position of the undertakings in question.
30. It is well established that the points of law examined at first instance may be argued again in the course of an appeal if an appellant challenges the interpretation or application of EU law by the General Court. If an appellant could not thus base his appeal on pleas in law and arguments already put forward before the General Court, the appeal would be deprived of part of its purpose. (7)
31. Furthermore, I consider that the Commission has identified sufficiently, in accordance with Article 169(2) of the Court’s Rules of Procedure, the points in the grounds of the judgment under appeal that are, in its view, vitiated by errors in law.
32. In my view, the grounds of inadmissibility advanced by the respondents in the present appeal must therefore be rejected.
b) The substance of the grounds of appeal
33. The first ground of appeal, which is central to the present appeal, asks the Court to establish whether the General Court was fully entitled to hold that the letters at issue, in so far as the Commission had demanded default interest in them, constituted challengeable acts for the purposes of Article 263 TFEU.
34. In the present case there are two differing viewpoints.
35. On the one hand, the Commission, supported by the EFTA Surveillance Authority, claims in essence that as the obligation to pay default interest arose from the Methacrylates decision alone and from the relevant regulatory provisions, the letters at issue are merely in preparation for the subsequent enforcement decision and are not such as to bring about a change in the legal position of the undertakings in question.
36. On the other hand, the respondents assert in essence that those letters cannot be considered as confirmation of an earlier decision. Noting that on 7 September 2006 Arkema had paid the whole of the original fine totalling EUR 219 131 250, which is not disputed by the Commission, and submitting that that payment had to be considered to have been made on behalf of the respondents, they maintain that at no time was there a question of a delay in payment and that they were not therefore required to pay the default interest demanded in the letters at issue.
37. It should be recalled that, according to settled case-law, only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position are acts which may be the subject of an action for annulment within the meaning of Article 263 TFEU. (8)
38. It is also settled case-law that it is necessary to look to the substance of the measure whose annulment is sought in order to determine whether it may be the subject of an action for annulment, the form in which it was adopted being in principle irrelevant in this regard. (9)
39. In the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, in principle (10) an act is open to review only if it is a measure definitively laying down the position of the institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision. (11) Intermediate measures whose purpose is to prepare for the definitive decision or measures which are mere confirmation of an earlier measure which was not challenged within the prescribed period cannot therefore be considered to be open to challenge. (12)
40. What about notices to pay drafted by the Commission’s accounts department following decisions concerning infringements of rules on competition adopted by the Commission pursuant to Article 23(2)(a) (13) of Regulation (EC) No 1/2003, (14) such as the Methacrylates decision at issue in the present case?
41. I propose that this question, which is straightforward a priori, be given a nuanced answer.
42. Although, as I will explain in the first place, and in accordance with the principles identified, inter alia, by the Court in the judgment of 6 December 2007 in Commission v Ferriere Nord, (15) those letters should not in principle have autonomous legal consequences compared with the original decision of the Commission establishing an infringement of competition law and accordingly imposing a fine, on account of the specific features of the present case I will argue — for reasons I will explain in the second place — that the appeal should be dismissed. Because those letters include a new element capable of adversely affecting the undertakings in question, the requirements of effective judicial protection may lead the European Union Courts to consider them to constitute acts which may be the subject of an action for annulment in accordance with Article 263 TFEU.
i) Letters from the Commission’s accounts department demanding that the addressees of a decision taken pursuant to Article 23(2)(a) of Regulation No 1/2003 pay a fine, if necessary together with default interest, are not in principle intended to produce binding effects capable of affecting the interests of the undertakings concerned
43. Letters from the Commission’s accounts department are, as a rule, mere notices to pay to enforce an earlier decision. In the context of decisions taken pursuant to Article 23(2)(a) of Regulation No 1/2003, those letters are both confirmation of a decision establishing an infringement — and, at the same time, imposing a fine — and pave the way for potential enforcement actions.
44. If we now look to their substance, which is the only truly determining factor in deciding whether an act is open to review before the European Union Courts, those notices to pay merely set out, in principle, the possible terms for payment and the outstanding amount, according to the Commission’s accounting officer, owed by the addressee undertakings. As the Commission’s accounts department is not authorised to adopt legally binding acts, the letters which it sends to the undertakings concerned may not include decision-making elements, other than those which follow from the original decision of the Commission, as varied by the European Union Courts as appropriate, which are capable of adversely affecting those undertakings.
45. This holds both for the fine imposed by the Commission under the decision adopted pursuant to Article 23(2)(a) of Regulation No 1/2003 and for default interest where no finding has been made regarding the length of the delay.
46. With regard to fixing the amount of default interest, the Commission is required, as it did in the Methacrylates decision, to apply the implementing rules for the Financial Regulation in force.
47. Article 71(4) of the Financial Regulation provides that the conditions on which default interest is due to the European Union are to be laid down in the implementing rules, adopted under Article 183 of the Financial Regulation. In that respect, Article 86(2) to (5) of the Financial Regulation, as amended by Regulation (EC, Euratom) No 1248/2006, (16) specifies the rates that will be applied, if necessary, in the case of a delay in payment of fines imposed for infringement of EU law.
48. As the Court made clear in the judgment of 6 December 2007 in Commission v Ferriere Nord, (17) with regard to a letter demanding payment of the balance of a fine, payment of which the Commission could no longer demand by reason of the time-barring of the action for enforcement of the decision imposing the fine, such a notice to pay cannot be considered to produce binding legal effects.
49. The Court ruled in that judgment that the contested acts, namely letters from the Commission concerning the outstanding balance of the fine which had been imposed on Ferriere Nord SpA under Decision 89/515/EEC, (18) whether they occur before or after any time-bar, in reality merely constitute acts purely preparatory to enforcement. (19) It should be noted that in that case the Court took care to state that, by the contested acts, the Commission had not notified Ferriere Nord of a decision ‘varying the original amount of the fine, penalty or periodic penalty payment’ within the meaning of Article 5(1)(a) of Regulation (EEC) No 2988/74. (20)
50. It should be noted that the General Court recently opted for a similar solution where it found that by the contested letter, namely the formal notice to pay a fine together with default interest, the Commission merely confirmed the situation resulting from its original decision imposing a fine, as amended by judgments of the General Court and subsequent letters from the Commission. (21)
51. Similarly, the General Court declared inadmissible an action for annulment of a letter indicating the exact sum that an undertaking, which was previously ordered to pay a fine in respect of its participation in an anticompetitive cartel, should pay to settle the outstanding amount of the fine and the late-payment interest added to that amount. As the General Court held that the total amount of the interest ultimately resulted from the implementing rules for the Financial Regulation in force, that letter lacked the nature of a decision in respect of the appropriate interpretation and application, in the present case, of the relevant provisions. (22)
52. Those statements are, it would seem, similar to the principles laid down in the recent judgment of 9 September 2015 in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, (23) in which the Court held, in the context of a contractual relationship, that a debit note ‘must be understood as a formal demand for payment setting out the maturity date and also the payment terms and it cannot be equated to an enforcement order, even though it refers to enforcement pursuant to Article 299 TFEU as a possible option among others open to the Commission where a party fails to perform an obligation by the delivery date laid down’.
53. It should be borne in mind in this regard that under Article 256 EC (now Article 299 TFEU), (24) the courts of the country concerned must ensure that enforcement of a decision of the Commission which imposes a pecuniary obligation is being carried out in a regular manner. The Court has stated in this regard that, although the requirement as to legal effects which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in its legal position must be interpreted in the light of the principle of effective judicial protection, such an interpretation cannot have the effect of setting aside that condition without going beyond the jurisdiction conferred by the Treaties on the EU Courts. (25)
54. This division of jurisdiction conferred on the European Union Courts and the national court respectively is based on the idea that, once the pecuniary obligation for which an individual is liable under a Commission decision has been defined, it is for the national court, in its capacity as a European Union Court exercising general jurisdiction, to review the lawfulness of the measures to enforce that precisely defined obligation.
55. This does not, it would seem, mean that an act, although it takes the form of an act enforcing a decision previously taken by the Commission, cannot be challengeable for the purposes of Article 263 TFEU in so far as it includes a new element capable of producing binding legal effects such as to affect the persons concerned. In such a case, the view must be taken that it is not the enforcement of the Commission decision imposing a pecuniary obligation that is at issue, but the definition of pecuniary obligation itself.
56. It cannot therefore be ruled out, precisely on account of the need for the Court to ensure the effectiveness of judicial protection, that an act taking the form of a notice to pay a fine and, if necessary, default interest may, in some circumstances, like those in the dispute in the present case, produce binding legal effects capable of affecting the interests of the legal persons in question.
57. I propose to examine this point hereinafter.
ii) The very specific circumstances of the present case should lead the Court to confirm the judgment under appeal
58. The factual and procedural situation underlying the present appeal, the main features of which should be explained, is relatively complex and unusual.
59. By the Methacrylates decision, the respondents, in their sole capacity as parent companies of Arkema, on which a fine of EUR 219 131 250 had been imposed, were found ‘jointly and severally’ liable for payment of the fine amounting to EUR 140.4 million and EUR 181.35 million respectively.
60. By the judgment of 7 June 2011 in Arkema France and Others v Commission (T-217/06, EU:T:2011:251), the fine imposed on Arkema was reduced to EUR 113 343 750. On the other hand, the fine imposed as such on the respondents remained unchanged following the judgment of 7 June 2011 in Total and Elf Aquitaine v Commission (T-206/06, EU:T:2011:250), which was, moreover, confirmed by the order of 7 February 2012 in Total and Elf Aquitaine v Commission (C-421/11 P, not published, EU:C:2012:60).
61. First, it is established that on 7 September 2006 Arkema paid the whole of the original fine totalling EUR 219 131 250 also on behalf of the respondent companies. Although, in its third ground of appeal — to which I will return below — the Commission has called into question the interpretation of the letter of 25 September 2008 in paragraph 113 of the judgment under appeal, to the effect that Arkema had completed a common payment declaration and had therefore paid the entire original fine also on behalf of the respondents, it has not stated, or even claimed, that that assessment is based on a distortion of the facts or an error made in the legal characterisation of the facts.
62. In view of this situation, two points should be made. The first concerns the position taken by the Court in Case C-421/11 P regarding payment of default interest. The second concerns, more generally, the question whether, having regard to the principles developed in case-law, a delay in payment could actually be imputed to the respondents.
63. The first point is that, by its order of 7 February 2012 in Total and Elf Aquitaine v Commission (C-421/11 P, not published, EU:C:2012:60, paragraph 89), the Court implicitly but necessarily confirmed the specificity and the substance of the distinction between the action brought against the letters at issue imposing default interest, wrongly in the view of the respondents, and the action brought against the Methacrylates decision. By ruling that the claim, made alternatively, seeking exemption from the payment of default interest had to be dismissed as being manifestly inadmissible in that it was directed ‘not … against the judgment [of 7 June 2011, Total and Elf Aquitaine v Commission (T-206/06, EU:T:2011:250)], but against the letter [of 8 July 2011] which is, furthermore, the subject of an action of the [respondents] before the General Court, lodged at the registry of that Court under number T-470/11’, the Court of Justice seems to have recognised that the letters at issue were not confirmation of the Methacrylates decision, as varied by the General Court.
64. The second point is that there is still legal uncertainty as to the specific conclusions to be drawn by the Commission in respect of recovery of fines imposed ‘jointly and severally’ on subsidiaries and their parent companies for anticompetitive conduct by those subsidiaries alone. More precisely, and although the Court was able to hold that in such a case the liability of parent company or companies was ‘purely derivative’ (26) of that of their subsidiaries, it did not, however, give clear guidance on the consequences to be drawn where those subsidiaries pay the whole of the fine imposed on them jointly and severally with their parent companies.
65. In such a case of payment in full by a subsidiary of the fine imposed ‘jointly and severally’, and irrespective of whether or not the subsidiary intended to make a ‘common payment’, is the Commission entitled to consider that the parent company failed, in whole or in part, to fulfil its payment obligation?
66. I do not think so.
67. In my view, the joint and several character of the liability of the respondent parent companies and their subsidiaries during the period of the infringement for anticompetitive conduct by those subsidiaries alone confirms, quite regardless of the existence of a ‘common payment declaration’, that the original payment of the fine by Arkema was made in its own name, but also on behalf of the other joint and several debtors. Where the liability of a parent company is wholly derived from that of its subsidiary, which alone infringed the prohibition of cartels laid down in Article 101(1) TFEU, and where, moreover, those two companies have been held jointly liable for the payment of a fine, the Commission may not order the parent company to pay a fine which is greater than that for which the subsidiary is ultimately liable. (27)
68. The Court has held in this regard that in a situation where the liability of a parent company is purely derivative of that of its subsidiary and in which no other factor individually reflects the conduct for which the parent company is held liable, the liability of that parent company cannot exceed that of its subsidiary. (28) The Court thus held that, where certain procedural requirements were satisfied, a parent company whose liability is entirely derivative from that of its subsidiary must, in principle, benefit from any reduction in the liability of its subsidiary which had been imputed to it. (29) Similarly, it has held that, as the objective of joint and several liability for payment of fines for infringement of EU competition law is, inter alia, to strengthen the effectiveness of the action taken for the recovery of those fines, with regard to any contentious issue that might exist in the context of the external relationship between joint and several debtors, ‘in principle, the Commission no longer has any interest in the matter, where the fine has been paid in full by one or more of those held liable’. (30)
69. Nevertheless, in Case C-421/11 P the Court held that the reduction of the fine imposed on a subsidiary should not automatically benefit its parent company whose liability is purely derivative. In the case of the respondents, the Court held that the multiplier applying to them and to Arkema is different and the mere fact that those companies had to pay a fine for which they are jointly and severally liable cannot justify extending the force of res judicata to be attributed to the judgment of 7 June 2011 in Arkema France and Others v Commission (T-217/06, EU:T:2011:251). (31) The Court did not therefore, strictly speaking, state that in the case of the payment of the whole of the fine by one of the other joint and several debtors, the Commission could no longer consider in practice that one of the other joint debtors was still liable for part of the fine.
70. For my part, and even if there is no need to rule directly on this question in the present case, I take the view that in these circumstances and if we are not to deny the very essence of the solidarity rule, there is reason to doubt that any delay in payment of the fine imposed under the Methacrylates decision can be imputed to the respondents. In so far as the letters at issue demand payment of default interest, which has no foundation either in that decision, as varied by the General Court in the judgment of 7 June 2011 in Arkema France and Others v Commission (T-217/06, EU:T:2011:251), or in the implementing rules for the Financial Regulation, they cannot therefore be considered to be mere confirmation of earlier acts.
71. Those letters undeniably contain a new element in that they order the respondents to pay part of the fine which had been imposed on them jointly and severally with Arkema, together with default interest, despite the fact that the whole of the fine had been paid immediately by Arkema. In these circumstances, it is not therefore an act enforcing a Commission decision that is at issue, judicial review of which falls to the national court, but an act calling into question the very definition of the pecuniary obligation imposed on an undertaking.
72. In this regard, it seems somewhat paradoxical for the Commission, on the one hand, to attach a degree of importance to the interpretation given to the letter of 25 September 2008 as to whether or not there exists a ‘common payment’ of the fine imposed jointly and severally under the Methacrylates decision and thus to the legal consequences of that letter and, on the other, to advocate the idea that that decision alone, as varied by the General Court, has the nature of a decision.
73. In the light of all these considerations, I take the view that the General Court did not err in law in classifying the letters at issue as challengeable acts under Article 263 TFEU, in so far as in those letters the Commission had demanded default interest.
B - The second ground of appeal, alleging a breach of the principles of lis pendens and res judicata resulting from the order of 7 February 2012 in Total and Elf Aquitaine v Commission (C-421/11 P, not published, EU:C:2012:60)
1. Arguments of the parties
74. By its second ground of appeal, the Commission alleges that the General Court, in essence, breached the principles of lis pendens and res judicata in so far as it detached, in particular in paragraphs 80 and 93 to 101 of the judgment under appeal, the matter of the default interest to be paid from the rest of the Methacrylates decision.
75. In this regard, the Methacrylates decision included, in Article 2, provisions on the principal fine imposed and on interest to be paid in the event of non-payment, which is accessory. At the time of the action in the case giving rise to the judgment under appeal, the appeal before the Court in Case C-421/11 P relating to that decision was still being heard. Furthermore, following the order of 7 February 2012 in Total and Elf Aquitaine v Commission (C-421/11 P, not published, EU:C:2012:60), that decision became final for the respondents in all its aspects, including in the matter of interest.
76. The respondents claim that the ground of appeal should be rejected.
2. Assessment
77. In this case I am inclined to the view that, given that the action brought before the General Court in Case T-470/11 was formally directed against an act which was seemingly different from that at issue in the case giving rise to the order of 7 February 2012 in Total and Elf Aquitaine v Commission (C-421/11 P, not published, EU:C:2012:60), the ground of appeal alleging a breach of the principles of lis pendens and res judicata must be rejected.
78. This seems to be the only approach compatible with the Court’s statement in paragraph 89 of that order regarding the specificity and the substance of the distinction between the action brought against the letters at issue imposing, perhaps wrongfully, default interest and the action brought against the Methacrylates decision.
79. I therefore take the view that the second ground of appeal cannot be upheld.
C - The third ground of appeal, alleging contradictory reasoning
1. Arguments of the parties
80. By its third ground of appeal, raised alternatively, the Commission claims that the judgment under appeal is vitiated by contradictory reasoning.
81. The General Court incorrectly found in paragraph 113 of that judgment that the Commission had received full satisfaction as against Arkema and as against all the other joint and several debtors, even though the General Court had correctly noted in paragraph 9 of that judgment that Arkema ‘regretted that it [was] unable to authorise the Commission to retain any sum whatever should its action before the Community court [be] crowned with success’.
82. According to the Commission, that statement by Arkema necessarily meant that there was no common payment declaration. In these circumstances, the General Court could not state that the Commission had received full satisfaction as against Arkema and as against all the other joint and several debtors.
83. The respondents claim that the third ground of appeal must be rejected as manifestly inadmissible and in any event as unfounded.
2. Assessment
84. The arguments put forward by the Commission in connection with the third ground of appeal are unconvincing and, in my view, must be rejected as being inadmissible.
85. First, it should be noted that paragraph 9 of the judgment under appeal does not relate, strictly speaking, to the statement of grounds but belongs to the part of the judgment under appeal on the facts, which does not, as such, contain any assessment by the General Court.
86. Second, it is apparent that, under the pretext of allegedly contradictory reasoning, the Commission is actually seeking to call into question the General Court’s interpretation of the letter dated 25 September 2008 sent by Arkema to the Commission in response to the letter of 24 July 2008.
87. Whilst the question whether the grounds of a judgment of the General Court are contradictory is a question of law that may, as such, be raised on appeal, (32) that is not the case for the assessment of the facts which, except in the case of distortion, is not amenable to review by the Court of Justice. (33)
88. Such distortion, which, moreover, has not been claimed at all, does not appear to have been established. I consider that the General Court’s interpretation in paragraph 113 of the judgment under appeal, according to which ‘the Commission cannot properly claim that Arkema did not fulfil the common payment declaration since, in the letter of 25 September 2008, Arkema clearly stated that the Commission had “received full satisfaction as against Arkema and as against all the other joint and several debtors”’, is perfectly tenable and thus not manifestly incorrect.
V - Conclusion
89. In the light of the foregoing considerations, I propose that the Court should:
1. dismiss the appeal;
2. order the European Commission to bear its own costs and to pay those incurred by Total SA and Elf Aquitaine SA;
3. order the EFTA Surveillance Authority to bear its own costs.
1 - Original language: French.
2 - T-470/11, EU:T:2015:241, ‘the judgment under appeal’.
3 - Letters BUDG/DGA/C4/BM/s746396 of 24 June 2011 (‘the letter of 24 June 2011’) and BUDG/DGA/C4/BM/s812886 of 8 July 2011 (‘the letter of 8 July 2011’ and, taken together, ‘the letters at issue’).
4 - Decision of 31 May 2006 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the Agreement on the European Economic Area (EEA) (Case COMP/F/38.645 — Methacrylates) (‘the Methacrylates decision’).
5 - Regulation 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 Financial Regulation’).
6 - Commission Regulation of 29 October 2012 on the rules of application of Regulation No 966/2012 (OJ 2012 L 362, p. 1).
7 - See, to that effect, judgments of 3 October 2013 in Inuit Tapiriit Kanatami and Others v Parliament and Council, C-583/11 P, EU:C:2013:625, paragraphs 46 and 47; 4 September 2014 in Spain v Commission, C-197/13 P, EU:C:2014:2157, paragraphs 44 and 45 and the case-law cited; and 14 June 2016 in Marchiani v Parliament, C-566/14 P, EU:C:2016:437, paragraph 37 and the case-law cited.
8 - See judgments of 11 November 1981 in IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; 12 September 2006 in Reynolds Tobacco and Others v Commission, C-131/03 P, EU:C:2006:541, paragraph 54; and 6 December 2007 in Commission v Ferriere Nord, C-516/06 P, EU:C:2007:763, paragraph 27.
9 - See judgments of 11 November 1981 in IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and 17 July 2008 in Athinaïki Techniki v Commission, C-521/06 P, EU:C:2008:422, paragraphs 42 and 43.
10 - The Court’s case-law states in this regard that in a procedure involving several stages, the institutions may adopt separable acts which are open to review in so far as they produce their own legal effects, in particular because they are the culmination of a distinct special procedure (see, inter alia, judgment of 11 November 1981 in IBM v Commission, 60/81, EU:C:1981:264, paragraph 11).
11 - See judgments of 11 November 1981 in IBM v Commission, 60/81, EU:C:1981:264, paragraph 10; 22 June 2000 in Netherlands v Commission, C-147/96, EU:C:2000:335, paragraph 26; and 17 July 2008 in Athinaïki Techniki v Commission, C-521/06 P, EU:C:2008:422, paragraphs 42 and 43.
12 - See judgment of 26 January 2010 in Internationaler Hilfsfonds v Commission, C-362/08 P, EU:C:2010:40, paragraph 52 and the case-law cited.
13 - Under that provision, the Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently, they infringe Articles 81 and 82 EC (now Articles 101 and 102 TFEU).
14 - Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles [81 and 82 EC] (OJ 2003 L 1, p. 1).
15 - C-516/06 P, EU:C:2007:763.
16 - Commission Regulation of 7 August 2006 (OJ 2006 L 227, p. 3).
17 - C-516/06 P, EU:C:2007:763, paragraph 27.
18 - Commission Decision of 2 August 1989 relating to a proceeding under Article 85 of the EEC Treaty (IV/31.553 — Welded steel mesh) (OJ 1989 L 260, p. 1).
19 - Judgment of 6 December 2007 in Commission v Ferriere Nord, C-516/06 P, EU:C:2007:763, paragraph 29.
20 - Regulation of the Council of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ 1974 L 319, p. 1).
21 - See judgment of 12 May 2016 in Trioplast Industrier v Commission, T-669/14, not published, EU:T:2016:285, paragraphs 65 to 78.
22 - See order of 19 November 2013 in 1. garantovaná v Commission, T-42/13, not published, EU:T:2013:621, paragraphs 26 and 27. See also, to that effect, orders of 10 June 1998 in Cementir v Commission, T-116/95, EU:T:1998:120, paragraphs 20 to 24, and 12 March 2012 in Universal v Commission, T-42/11, not published, EU:T:2012:122, paragraphs 20 to 32.
23 - C-506/13 P, EU:C:2015:562, paragraph 23.
24 - Article 4 of the Methacrylates decision states that that decision is enforceable pursuant to Article 256 EC.
25 - See, to that effect, judgment of 6 December 2007 in Commission v Ferriere Nord, C-516/06 P, EU:C:2007:763, paragraphs 32 and 33.
26 - See judgment of 17 September 2015 in Total v Commission, C-597/13 P, EU:C:2015:613, paragraphs 38 and 41 and the case-law cited.
27 - See my Opinion in Total v Commission, C-597/13 P, EU:C:2015:207, points 31 to 46.
28 - See judgments of 22 January 2013 in Commission v Tomkins, C-286/11 P, EU:C:2013:29, paragraphs 37, 39, 43 and 49, and 17 September 2015 in Total v Commission, C-597/13 P, EU:C:2015:613, paragraph 38.
29 - See judgment of 17 September 2015 in Total v Commission, C-597/13 P, EU:C:2015:613, paragraph 41.
30 - See judgment of 10 April 2014 in Commission and Others v Siemens Österreich and Others, C-231/11 P to C-233/11 P, EU:C:2014:256, paragraphs 59 and 60.
31 - See order of 7 February 2012 in Total and Elf Aquitaine v Commission, C-421/11 P, not published, EU:C:2012:60, paragraph 83.
32 - See, inter alia, judgments of 13 December 2001 in Cubero Vermurie v Commission, C-446/00 P, EU:C:2001:703, paragraph 20 and the case-law cited, and 8 February 2007 in Groupe Danone v Commission, C-3/06 P, EU:C:2007:88, paragraph 45 and the case-law cited.
33 - See judgment of 11 September 2014 in CB v Commission, C-67/13 P, EU:C:2014:2204, paragraph 41 and the case-law cited.
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