Analysis: “Commission v Printeos (C-301/19 P): A statement of EU law on the interest owed by the Commission when a fining decision is annulled” by Jokin Beltrán de Lubiano
In the latest installment of the Printeos saga (C-301/19 P), the Court of Justice has provided a full statement of the law regarding the interest owed by the European Commission when the Court annuls a fining decision.
In 2014, the Commission found that Printeos and other companies had participated in an envelope cartel in breach of Article 101 TFEU, and imposed a fine of 4.7 million euros on the undertaking. Printeos appealed the decision and provisionally paid the fine amount into an EC-managed fund (the BUFI fund) while the appeal was pending.
In 2016, the General Court found in favour of Printeos and annulled the Commission Decision on procedural grounds; see Printeos and Other v Commission (T-95/15). Printeos sought the return of the amounts paid into the BUFI fund for the main amount of the fine (which the Commission promptly granted) and the interest accrued since then (which the Commission refused). The judgment of the Court of Justice handed down on 20 January 2021 resolves this dispute.
The judgment deals with two separate interest claims by Printeos. The main claim refers to the period between the payment of the fine by Printeos (9 March 2015) and the return thereof by the Commission (1 February 2017), accrued on the 4.7 million-euro fine (the main interest claim). A second, derivative claim refers to the period between the lodging of the appeal (31 March 2017) and the final payment date, accrued on the main interest claim (the compounded interest claim).
The main interest claim
The Commission had refused to grant any interest on the grounds that the BUFI fund, which invests the amounts provisionally paid by fined undertakings, had not made a positive return on the investment in the relevant period. In particular, under Article 90(4) of Delegated Regulation 1268/2012, the Commission must return the fine and the interest yielded by the BUFI fund or, if the return is negative, simply the fine.
The Court first distinguishes between default interest and compensatory interest. Default interest accrues from debts which are certain or ascertainable, and pursues two objectives: compensating the creditor and incentivising compliance by the debtor. Compensatory interest has as its goal simply to compensate the passage of time related to the judicial process (a delay not attributable to the debtor).
The Court confirms that the main interest claim is a claim for default interest, and that Printeos was entitled to such amounts on the basis of Article 266 TFEU. Further, since Article 90(4) of Delegated Regulation 1268/2012 is a secondary legislation instrument, it must be construed on the basis of Article 266 TFEU; it therefore cannot exempt the general obligation to pay default claims under this Treaty provision.
The compounded interest claim
In respect of this derivative claim for the interests accrued on the main interest claim during the appeals before the General Court and the Court of Justice, the latter Court also finds in favour of Printeos. In particular, the Court holds that the particular circumstances of the case justify compounding interest. This is because the Commission unlawfully refused to pay interest, and in so doing it prevented Printeos from the enjoyment of such amounts. Therefore, to fully compensate Printeos, the Commission is also ordered to pay compounded interests.
This Judgment makes an important contribution by finding in Article 266 TFEU a general obligation to grant default interests when a party becomes a creditor of an EU institution as a result of a Court judgment, a rule that would be applicable in principle to all cases beyond competition fines. In so doing, the Court has reduced the ability of the institutions to introduce secondary legislation to manage these risks, and incentivises the resort to judicial review of EU acts by ensuring that there is an economic upside to direct appeals.
Jokin Beltrán de Lubiano is an EU & Competition law Associate at an international law firm.