Case C-123/03 P

Commission of the European Communities

v

Greencore Group plc

(Application for annulment of a letter of the Commission – Refusal to pay interest on a sum refunded – Concept of act confirming an earlier act – Payment of the principal sum without interest – No earlier decision to refuse)

Summary of the Judgment

1. Appeals – Grounds – Incorrect assessment of the facts – Inadmissibility – Dismissal –Definition of the legal nature of the facts – Admissibility

(Art. 225 EC)

2. Actions for annulment – Measures against which actions may be brought – Concept – Measures producing binding legal effects – Institution’s silence or inaction – Refunding of a sum overpaid in relation to a fine with no decision taken as to the request for payment of interest presented by the undertaking making the claim – Excluded

(Art. 230 EC)

1. Although the Court of Justice has no jurisdiction to review the assessment of the facts made by the Court of First Instance, it does have jurisdiction pursuant to Article 225 EC to review the definition of the legal nature of those facts and the determination of the legal consequences made by the Court of First Instance.

(see para. 36)

2. Any measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action under Article 230 EC for a declaration that it is void. As a rule, mere silence on the part of an institution cannot be placed on the same footing as an implied refusal, except where that result is expressly provided for by a provision of Community law. While not excluding that in certain particular circumstances that principle may not be applicable, so that an institution’s silence or inaction may exceptionally be considered to constitute an implied refusal, it is to be considered that, in the case of a judgment of the Court of First Instance reducing the amount of a fine, followed by a letter addressed by the appellant to the Commission, asking the latter to refund the overpaid part of the fine together with interest, the Commission’s paying of the principal sum only without explicitly taking a position on the request for payment of interest does not amount to an implied decision rejecting that request.

(see paras 44-45)

JUDGMENT OF THE COURT (Second Chamber) 9 December 2004 (1)

(Application for annulment of a letter of the Commission – Refusal to pay interest on a sum refunded – Concept of act confirming an earlier act – Payment of the principal sum without interest – No earlier decision to refuse)

In Case C-123/03 P,APPEAL under Article 56 of the Statute of the Court of Justice, lodged at the Court on 19 March 2003,

appellant,

the other party to the proceedings being:

THE COURT (Second Chamber),,

composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur), J.-P. Puissochet, N. Colneric and J.N. Cunha Rodrigues, Judges,

Advocate General: F.G. Jacobs,

having regard to the written procedure and further to the hearing on 1 April 2004,

after hearing the Opinion of the Advocate General at the sitting on 6 May 2004,

gives the following

On those grounds, the Court (Second Chamber) hereby:

Signatures.