Reimbursement of the costs of a bank guarantee provided in lieu of payment of a fine imposed by the

By Decision 94/815/EC of 30 November 1994 the Commission ordered Alsen Breitenburg Zement- und Kalkwerke GmbH and Nordcement AG (in 1997 these companies merged to become Alsen AG, now Holcim (Deutschland) AG) (hereinafter the "Applicant" or "Applicants") to pay total fines of EUR 3.841 million for infringement of Article 85 of the EC Treaty. The Applicants brought actions to annul this decision at the Court of First Instance (hereinafter "CFI").

Since filing a claim at the CFI does not operate to postpone the effect of a fine imposed in proceedings before the Commission, this means that the obligation to pay any fine already imposed within the specified time limit remains, irrespective of the proceedings before the CFI. Both Applicants decided to use the opportunity - offered by the Commission – of providing bank guarantees to avoid having to pay these fines immediately. The Applicants paid charges in total of approximately 139,000 EUR for provision of the bank guarantees. In a decision of 15 April 2000 (Cementeries CBR and Others v Commission - "Cement") the CFI annulled the Cement decision insofar as the Applicants were concerned and ordered the Commission to pay costs. Pursuant to the CFI decision, the Applicants made repeated demands for payment of legal fees and reimbursement of the costs incurred in providing the bank guarantees. Upon the Commission's refusal to pay these costs, the Applicants (under their current joint name of Holcim (Deutschland) AG) lodged a claim at the CFI for compensation, seeking reimbursement for the costs of the bank guarantees incurred by them as a consequence of the fines imposed under the Commission's Decision subsequently annulled by the CFI.

The CFI rejected the Applicant's claim as inadmissible, insofar as it was based on Article 233 of the EC Treaty, since on the basis of the exhaustive list of procedural instruments governed by the EC Treaty (in the light of applicable case law), Article 233 of the EC Treaty cannot constitute a specific remedy. Similarly, the CFI rejected as inadmissible the alternative plea to the court to interpret the action, insofar as it is based on Article 233 of the EC Treaty, as being an action for annulment or for failure to act, on the grounds that the sole purpose of the claim was to obtain compensation for damage. Furthermore, the CFI rejected as inadmissible the Applicant's plea for compensation for damage incurred by the Applicants as a result of obtaining the bank guarantees before 31 January 1998, on the grounds that a claim for compensation for damage arising more than five (5) years before the date on which the claim was filed is time-barred.

In the matter itself, the CFI held that in the event of provision of a bank guarantee in lieu of payment of a fine, the Commission had no obligation to repay the fine in the absence of any legal reason for such repayment, given that the fine was never paid to the Commission. The Applicant suffered no loss as a result of the Commission Decision as regards the amount of fine. On this basis, the only pecuniary loss that could have arisen was the loss flowing from the actual decision by the Applicant to provide the bank guarantee. The CFI held that in contrast to the repayment of the fine paid pursuant to the nullified Commission Decision, which would have to be repaid together with all interest incurred, the Commission had no obligation to repay bank guarantee charges on the grounds that this form of "payment" did not entail any undue enrichment of the Community because the bank guarantee charges were not paid to the Community but to a third party. The court held that any assumption of responsibility by the Commission for the costs of providing a bank guarantee would penalise the Commission, since it would be required to reimburse sums of which it never had the benefit.