Background to the dispute
1The 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’).
2On 17May 2000, MG sold OCG, which had been renamed Aachener Chemische Werke Gesellschaft für glastechnische Produkte und Verfahren mbH (‘ACW’).
3Following its dissolution in May 2000, the business of OCA was absorbed, from 30August 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
4By Decision C(2009)8682 final of 11November 2009 relating to a proceeding under Article81 [EC] and Article53 of the EEA Agreement (Case COMP/38589– Heat stabilisers) (‘the 2009 decision’), the European Commission found that a number of undertakings had infringed Article81 EC and Article53 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’).
5Under Article1(2)(k) of the 2009 decision, the applicant was held liable for infringements committed in the ESBO/esters sector from 11September 1991 to 17May 2000. GEA was held liable for the entire period of infringement, as the successor of MG, for the infringements committed from 11September 1991 to 17May 2000 by OCG, and from 13March 1997 to 17May 2000 by OCA.
6In addition, as the successor of OCG, ACW was penalised, first, for the infringement committed by OCG throughout the period of infringement, namely from 11September 1991 to 17May 2000, and, second, for the infringement committed by OCA from 30September 1999 to 17May 2000, when the latter’s shares were wholly owned by OCG.
7As the successor of OCA, CPA was penalised, first, for the infringement committed by OCA from 13March 1997 to 17May 2000 and, second, for the infringement committed by OCG from 30September 1995 to 30September 1999, when the latter’s shares were wholly owned by OCA.
8As set out in the second paragraph of Article2 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: EUR1913971;
32)[the applicant] and [ACW] are jointly and severally liable for: EUR1432229;
…’
9On 28January 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.
10By judgment of 15July 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
11On 15December 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 Article23(2) of Council Regulation (EC) No1/2003 of 16December 2002 on the implementation of the rules on competition laid down in Articles81 [EC] and 82 [EC] (OJ 2003 L1, p.1).
12On 8February 2010, the Commission adopted Decision C(2010)727 final, amending the 2009 decision (‘the 2010 decision’).
13In 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.
14The 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.
15Article1 of the 2010 decision amended the second paragraph of Article2 of the 2009 decision as follows:
‘Article2[, point31,] is replaced by the following text:
“31)a) [the applicant], [ACW] and [CPA] are jointly and severally liable for EUR1086129;
31)b) [the applicant] and [CPA] are jointly and severally liable for EUR827842”
Article2[, point32,] is replaced by the following text:
“32)[the applicant] is liable for: EUR1432229”’.
16On 20April 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.
17By judgment of 15July 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
18By letter of 5February 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.
19On 24March 2016, the applicant submitted its observations to the Commission, which responded by letter of 2May 2016.
20On 29June 2016, the Commission adopted Decision C(2016)3920 final, amending the 2009 decision (‘the 2016 decision’). Article1 of that decision reproduced identically the terms of Article1 of the 2010 decision, set out in paragraph15 above, which amended the second paragraph of Article2 of the 2009 decision. Article2 of the 2016 decision set the date by which the fines were due at 10May 2010.
21On 22July 2016, the applicant paid the amount of the fine outstanding after the amounts paid by ACW and CPA, including interest.
22On 8September 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.
23By judgment of 18October 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 Article2 of the 2016 decision, which set the date by which the fines were due at 10May 2010, was vitiated by misuse of power.
The contested decision
24On 31October 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 18October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700).
25By letter of 24January 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‑823/18P
26On 27December 2018, the Commission lodged an appeal against the judgment of 18October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700).
27By judgment of 25November 2020, Commission v GEA Group (C‑823/18P, EU:C:2020:955), the Court of Justice set aside the judgment of 18October 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.