Challenge before the EU Courts

Obligation to pay within the time limit set by the decision and exceptions: Challenge before the EU Courts

If the addressee of the decision decides to challenge the decision, it has to opt between a provisional payment or a bank guarantee complying with certain minimum requirements, both to be deposited before the due date (see Article 85a of the Implementing Rules). The addressee is informed of that possibility in the cover letter of notification of the decision imposing a fine sent by the Secretariat-General.

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The discussions between the Commission and the addressee of the decision with regard to the provisional payment or bank guarantee are of the competence of DG Budget (as Accounting Officer). If the company opts for a bank guarantee (and which is accepted by DG Budget, as Accounting Officer), the payment of the fine (and default interest as the case may be 1 ) will be deferred until the judgment; depending on the outcome of the Court case, the guarantee will be enforced or released.

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Note however that the addressee of the decision can decide to ask the Court to suspend its payment obligation (interim measures) without even the constitution of a bank guarantee. This is however only exceptionally granted by the Court, often under conditions. 2

Resources

See Also

References

• Information about Challenge before the EU Courts in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes

[Note 1] The default interest in case of a bank guarantee is lower than the default interest applicable to a company that simply does not pay (rate applied by the ECB to its principal refinancing operations in force on the first calendar day of the month in which the decision is adopted plus 1.5 percentage points in case of a bank guarantee, instead of 3.5 percentage points in other cases) (see article 86 of the Implementing Rules).
[Note 2] See, for recent examples, the orders of the President of the General Court of 7.7.2006 in Case T-11/06 R Romana Tabacchi SpA v Commission; of 2.3.2011 in Case T-392/09 R 1. garantovaná a.s. v Commission; and of 13.4.2011 in Case T-393/10 R Westfälische Drahtindustrie GmbH v Commission.

Further Reading

• Information about Challenge before the EU Courts in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)