Substance
60In support of the action, the applicant relies on two pleas in law, alleging, first, infringement of Article266 TFEU on account of the Commission’s refusal to repay the fine paid by the applicant and, second, infringement of Article266 TFEU on account of applying the 2009 decision to the applicant and the 2010 decision to ACW and CPA.
61Before examining the pleas raised by the applicant, it is necessary to analyse the consequences for the action of the judgment of 25November 2020, Commission v GEA Group (C‑823/18P, EU:C:2020:955).
Preliminary observations on the consequences of the judgment of 25November 2020, Commission v GEA Group (C‑823/18P)
62The Commission maintains that, following the Court of Justice setting aside the judgment of 18October 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 Article126 of the Rules of Procedure.
63In 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 24January 2019, on account of the setting aside of the 2016 decision by the judgment of 18October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700). That date precedes the judgment of 25November 2020, Commission v GEA Group (C‑823/18P, EU:C:2020:955), by more than 22months. 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.
64In 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 18October 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 15July 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 25November 2020, Commission v GEA Group (C‑823/18P, EU:C:2020:955).
65It 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 18October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700).
The first plea in law: infringement of Article266 TFEU on account of the refusal to repay the fine paid by the applicant
66By its first plea, the applicant maintains, in essence, that the contested decision infringes Article266 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.
67The 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.
68According to the applicant, it is clear that it paid the fine in question in execution of the 2016 decision. In an email of 19July 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.
69The Commission confirmed to the applicant that it had understood the provisional nature of the payment. In its email of 20July 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.
70The applicant argues that the obligation incumbent on the Commission to implement the judgment of 18October 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 Article60 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.
71According 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.
72The 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.
73The Commission disputes those arguments.
74As set out in Article266 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.
75According 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 20June 2018, České dráhy v Commission, T‑621/16, not published, EU:T:2018:367, paragraph38 and the case-law cited).
76In 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 15July 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.
77In that regard, it must be stated that, in Article2 of the 2009 decision, the Commission imposed fines on the undertakings concerned, including the applicant. More specifically, in points31 and 32 of the second paragraph of Article2 of that decision, the Commission imposed a fine of EUR3346200, 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 Article2 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.
78That finding is upheld by the Court of Justice in the judgment of 25November 2020, Commission v GEA Group (C‑823/18P, EU:C:2020:955). In paragraph110 of that judgment, the Court of Justice held that the amendment made to points31 and 32 of the second paragraph of Article2 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 paragraph126 of the judgment of 18October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700), it is Article2 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 Article1 of the 2016 decision.
79In 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 25November 2020, Commission v GEA Group, C‑823/18P, EU:C:2020:955, paragraphs70 and 72).
80In 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.
81The 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.
82Moreover, 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.
83Furthermore, the applicant’s argument that the appeal brought by the Commission against the judgment of 18October 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.
84In 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.
85In 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.
86In 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 16July 2020, ADR Center v Commission, C‑584/17P, EU:C:2020:576, paragraph75 and the case-law cited).
87In the present case, it must be stated that, in an email of 19July 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.
88In response to that email, the Commission replied, in an email of 20July 2016, that the fines could be paid on a provisional basis and that the bank details were those specified in Article2 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 ‘fine31a’, ‘fine31b’, ‘fine32’ respectively. As the Commission acknowledges, those are references to points31(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 points31 and 32.
89However, that reference by the Commission to points31(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.
90In addition, it must be stated that, in earlier letters dated 18December 2015, 20January 2016, 5February 2016 and 23February 2016 respectively, the Commission had stated clearly that the 2009 decision was the legal basis for the fine to be paid by the applicant.
91In 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.
92In the light of the foregoing, the first plea in law must be rejected.
The second plea in law: infringement of Article266 TFEU on account of applying the 2009 decision to the applicant and the 2010 decision to ACW and CPA
93By its second plea, the applicant maintains, in essence, that the Commission infringed Article266 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.
94According 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 15July 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.
95In 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.
96If 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 15July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), and of 18October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700).
97The Commission disputes those arguments and contends that the second plea should be rejected.
98In 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.
99Consequently, in so far as the second plea relates to the fines imposed on ACW and CPA, it must be rejected as ineffective.
100In 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.
101Furthermore, 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.
102Furthermore, contrary to the applicant’s assertion, the contested decision complies with the judgment of 18October 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.
103In the contested decision, the Commission also had due regard to the judgment of 15July 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.
104In those circumstances, the second plea must be rejected and, consequently, the action must be dismissed in its entirety.