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OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 30 May 2017 1

Case C-122/16 P

British Airways plc

v

European Commission

(Appeal — Competition — Agreements, decisions and concerted practices —

Admissibility of appeal before the Court — Second paragraph of Article 21 and

second paragraph of Article 56 of the Statute of the Court of Justice of the

European Union — Definition of ‘unsuccessful’ — Article 169(1) and

Article 170(1) of the Rules of Procedure of the Court — Principle of ne ultra

petita — Public policy issue raised of the EU judicature’s own motion —

Defective statement of reasons– Limits on the EU Courts’ power of annulment —

Principle of effective judicial protection)

1 Original language: French.

EN

BRITISH AIRWAYS v COMMISSION

1

1. When the EU judicature raises an issue of public policy of its own motion,

is its power of annulment limited by the principle of ne ultra petita? Alternatively,

in such a case, is the EU judicature able, or even required, as an exception to that

principle, to draw all the appropriate legal conclusions flowing from giving effect

to the plea raising the issue of public policy thus, potentially, going beyond the

forms of order sought by the parties?

2. That is, in essence, the basic question to be addressed in this case, which

concerns an appeal by which British Airways plc (‘BA’) seeks to have set aside

the judgment of the General Court of the European Union of 16 December 2015,

British Airways v Commission 2 (‘the judgment under appeal’).

3. The background to this case is somewhat unusual. BA brought an action

before the General Court seeking the annulment in part of Commission Decision

C(2010) 7694 final of 9 November 2010 penalising its participation in an

anticompetitive agreement in the airfreight sector (‘the contested decision’). 3

However, the General Court did not examine any of the pleas in law put forward

by BA in its action. Instead, it raised of its own motion a plea alleging defective

reasoning vitiating the contested decision in its entirety. Nonetheless, since it

considered itself to be constrained by the principle of ne ultra petita, the General

Court annulled the decision with respect to BA only within the limits of the

latter’s application for partial annulment. BA challenges that approach in its

appeal and claims that the General Court should have annulled the contested

decision in its entirety.

4. This case affords the Court the opportunity to clarify the extent of the

powers of the EU judicature, particularly where, in proceedings for judicial

review, it has raised an issue of public policy of its own motion.

5. The case exposes the tensions between the fundamental — and

occasionally conflicting — requirements that each legal order must meet, that is,

on the one hand, the requirement of legality, which underpins the power/duty of

the EU judicature to raise public policy issues of its own motion and, on the other,

the requirement of stability in legal relations, considered in the specific context of

this case, in connection with the delimitation of judicial powers stemming from

the principle that the subject matter of an action is defined by the parties, of which

the principle of ne ultra petita is a corollary.

6. In order to address the fundamental question arising in this case, a question

which is, moreover, preceded by questions that are not self-evident concerning the

admissibility of BA’s appeal, the Court will have to strike a fair balance between

those requirements, by weighing up the different competing principles in question.

2 T-48/11, not published, EU:T:2015:988.

3 Decision relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement

and Article 8 of the Agreement between the European Community and the Swiss Confederation

on Air Transport (Case COMP/39258 — Airfreight).

OPINION OF MR MENGOZZI — CASE C-122/16 P

2

I. Background to the dispute and the contested decision

7. In response to an application for immunity 4 submitted in 2005 by

companies belonging to the Deutsche Lufthansa group, the European Commission

initiated an investigation into the existence of anticompetitive conduct in the

airfreight market.

8. The investigation concluded with the adoption, on 9 November 2010, of the

contested decision, which the Commission addressed to 21 carriers, including BA.

9. In that decision, the Commission found that, by participating in the

coordination of certain elements of the price to be charged for airfreight services, 5

BA and other airlines had infringed Article 101 TFEU, Article 53 of the

Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3)

and Article 8 of the Agreement between the European Community and the Swiss

Confederation on Air Transport, signed on 21 June 1999 in Luxembourg,

approved on behalf of the Community by Decision 2002/309/EC, Euratom, of the

Council and of the Commission as regards the Agreement on Scientific and

Technological Cooperation of 4 April 2002 on the conclusion of seven

Agreements with the Swiss Confederation (OJ 2002 L 114, p. 1). On that basis,

the Commission ordered BA to pay a fine of EUR 104 040 000.

II. The procedure before the General Court and the judgment under

appeal

10. On 24 January 2011, BA brought an action before the General Court

seeking the annulment in part of the contested decision. 6 In support of its action,

BA put forward seven pleas in law. All addressees of the contested decision,

except the airline Qantas Airways Ltd., also challenged the contested decision

before the General Court.

11. By way of measure of organisation of procedure, the General Court asked

the parties to submit observations on whether there was any contradiction between

the grounds of the contested decision and the first four articles of its operative

part.

4 The application for immunity was submitted under the Commission notice on immunity from

fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).

5 The conduct penalised involved anticompetitive contact concerning a ‘fuel surcharge’, a

‘security surcharge’ and the payment of commission on the surcharges (see paragraph 5 of the

judgment under appeal).

6 Specifically, in its action before the General Court, BA sought the annulment of the contested

decision in so far as it (i) found that BA had participated in the refusal to pay commission; (ii)

found that BA had participated in the infringement of the competition rules between 22 January

2001 and 1 October 2001; (iii) found that the infringement concerned Hong Kong, Japan, India,

Thailand, Singapore, South Korea and Brazil; and (iv) imposed a fine on BA.


3

12. The General Court delivered the judgment under appeal on 16 December

2015. 7

13. In that judgment, the General Court noted, first of all, that it has

consistently been held that an absence of or inadequate statement of reasons

constitutes an infringement of essential procedural requirements for the purposes

of Article 263 TFEU and is a ground involving a matter of public policy which

may, and even must, be raised by the EU judicature of its own motion. 8

14. Next, without examining any of the seven pleas in law put forward by BA,

the General Court found that there was a contradiction between the grounds and

the operative part of the contested decision, 9 as well as significant internal

inconsistencies within the grounds themselves. 10

15. Lastly, the General Court observed that the internal inconsistencies in the

contested decision had infringed BA’s rights of defence, in that they had not made

it possible for it to understand the nature and scope of the infringement or

infringements found and had prevented the General Court from exercising its

power of review. 11

16. Following that analysis, the General Court concluded that the contested

decision was vitiated by a defective statement of reasons.

17. However, the General Court held that, since the EU judicature may not rule

ultra petita and any judgment it delivers annulling a decision cannot go further

than the annulment sought by the applicant, the finding that the statement of

reasons was defective could not lead, in that instance, to the annulment of the

contested decision in its entirety in so far as it concerns BA. 12

18. In paragraph 90 of the judgment under appeal, the General Court stated

that, during the hearing, BA had indeed claimed that the Court could annul the

7 On the same day, the General Court delivered judgment in the actions brought by the other

carriers concerned which also sought to challenge the contested decision. In each of those

judgments, the General Court annulled the decision in its entirety with respect to the airline that

had brought the action in question (see, among others, judgment of 16 December 2015, Air

Canada v Commission, T-9/11, not published, EU:T:2015:994).

8 Paragraph 29 of the judgment under appeal.

9 See paragraphs 41 to 70 of the judgment under appeal. In particular, the General Court pointed

out that, although the grounds of the contested decision described a single and continuous

infringement in relation to all of the routes covered by the cartel and in which all of the carriers

concerned allegedly participated, the operative part of that decision could be interpreted in two

different ways (see, specifically, paragraph 61 of the judgment under appeal).

10 Paragraphs 71 to 74 of the judgment under appeal.

11 Paragraphs 76 to 85 of the judgment under appeal.

12 Paragraphs 87 and 88 of the judgment under appeal.


4

contested decision in its entirety, on the ground that the operative part did not

reflect the statement of reasons for that decision. However, the General Court

found that even if it were possible to consider that BA had implicitly expressed an

intention to amend the form of order it was seeking and to seek, at the hearing, the

complete annulment of the contested decision in so far as it concerned BA: (i) an

amendment of the form of order sought is subject to the strictest requirements as

regards its precision and content, and must be done formally; and (ii) the failure to

state reasons vitiating the contested decision was apparent from an actual reading

of that decision and could not be considered to be a matter of law or of fact which

came to light in the course of the written procedure.

19. In those circumstances, the General Court annulled the contested decision

within the limits defined by the form of order set out in the application lodged by

BA. 13

20. On 17 March 2017, the Commission adopted a fresh decision on the

anticompetitive agreement covered by the contested decision. As regards BA, the

decision reinstated the parts of the contested decision that had been annulled in the

judgment under appeal.

III. Forms of order sought by the parties

21. By its appeal, BA asks the Court, first, to set aside the judgment under

appeal in so far as that judgment limits the scope of the annulment of the

contested decision to the form of order sought by it in its action at first instance;

secondly, to set aside paragraph 1 of the operative part of the judgment under

appeal; thirdly, to annul the contested decision in its entirety; and, fourthly, to

order the Commission to pay the costs of the appeal.

22. The Commission contends that the Court should dismiss the appeal and

order BA to pay the costs.

IV. Assessment

23. BA puts forward two pleas in law in support of its appeal. By its first plea,

it claims that the General Court erred in law in considering itself restricted by the

principle of ne ultra petita. According to BA, since the General Court raised a

public policy issue of its own motion and found there to be a defect vitiating the

contested decision in its entirety, it should have annulled the decision completely.

The second plea, raised in the alternative, alleges infringement of the right to

effective judicial protection provided for in Article 47 of the Charter of

Fundamental Rights of the European Union (‘the Charter’).

13

Paragraph 92 of the judgment under appeal and paragraph 1 of the operative part.


5

24. The Commission raises, as a preliminary issue, objections that the appeal is

inadmissible, which must be addressed first.

A. Admissibility of the appeal

1. Infringement of the requirement to attach the judgment under appeal to

the appeal

25. In the first place, the Commission contends that the appeal is inadmissible

because BA failed to append the judgment under appeal to the application, which

constitutes an infringement of Article 168(2) of the Rules of Procedure of the

Court. 14

26. It should be noted that the previous Rules of Procedure expressly stated that

‘the decision of the General Court appealed against shall be attached to the

appeal’. 15 The Rules of Procedure which entered into force on 1 November 2012

no longer contain that express requirement. The most recent rules only require that

the appeal contain ‘a reference to the decision of the General Court appealed

against’, so that the Court can clearly identify the decision in question

(Article 168(1)(b)).

27. Article 168(2) of the Court’s Rules of Procedure refers to Article 122(1) of

those rules, which in turn refers to the second paragraph of Article 21 of the

Statute of the Court of Justice of the European Union. It is apparent from the latter

two provisions that the application must be accompanied by the measure the

annulment of which is sought ‘where appropriate’. In my view, the words ‘where

appropriate’ must be interpreted as meaning that it is not necessary to append the

contested measure to the application where the Court has easy access to that

measure, which, in the light of technological developments, is now always the

case with judgments and orders of the General Court.

28. Accordingly, Article 168(2) of the Rules of Procedure of the Court does not

require the judgment under appeal to be appended to the appeal, with the result

that the Commission’s first plea of admissibility must be dismissed.

14

Article 168(2) of the Rules of Procedure of the Court provides, in particular, that Article 122(1)

of those rules applies to appeals. Under Article 122(1), ‘the application shall be accompanied,

where appropriate, by the documents specified in the second paragraph of Article 21 of the

Statute [of the Court of Justice of the European Union]’. The second paragraph of Article 21 of

the Statute states that the application ‘shall be accompanied, where appropriate, by the measure

the annulment of which is sought’.

15 See Article 112(2) of the Rules of Procedure of the Court of 19 June 1991, in force until

31 October 2012.


6

2. Infringement of Article 56 of the Statute of the Court of Justice of the

European Union and Articles 169 and 170 of the Rules of Procedure of the

Court

29. In the second place, the Commission claims that the appeal is inadmissible

because it does not meet the requirements laid down in Article 56 of the Statute of

the Court of Justice of the European Union and Articles 169 and 170 of the Rules

of Procedure of the Court. Before considering those objections, however, it is

necessary to examine the Commission’s plea that the reply, which BA was given

leave to lodge in order to respond to the objections, is inadmissible in its entirety.

(a) Admissibility of the reply

30. The Commission submits that the arguments put forward by BA in its reply

to the objections of inadmissibility raised by the former amount to a new plea

introduced in the course of the proceedings and, as those arguments must be

classified as such, the reply is inadmissible in its entirety. 16 According to the

Commission, while, in its appeal, BA asserts that the General Court erred in law

by failing to draw all the necessary legal conclusions flowing from giving effect to

the plea of public policy raised of its own motion, BA challenges, for the first time

in its reply, the refusal of its request, made at the hearing before the General

Court, to have the contested decision annulled in its entirety.

31. It should be observed in that regard that, during the proceedings, in

fulfilment of the requirement that the parties be heard on the issue it intended to

raise of its own motion, the General Court asked the parties to state their views on

that issue.

32. It is apparent from paragraph 90 of the judgment under appeal that, at the

hearing, in its submissions concerning that issue, BA expressly claimed that the

General Court could annul the contested decision in its entirety.

33. In the same paragraph of the judgment under appeal, the General Court

expressly rejected BA’s request, thereby treating it, in essence, as an ‘implicit’

(according to the wording used by the General Court) request to amend the form

of order it was seeking. The General Court thereafter annulled the contested

decision in part, within the limits of the form of order sought by BA in its

application.

34. In its appeal, BA submits that the General Court erred in law in considering

itself, in that instance, restricted by the principle of ne ultra petita. It argues that

when the EU judicature raises an issue of public policy of its own motion, it must

have the power to draw all the appropriate legal conclusions flowing from giving

effect to the plea rising that issue, namely, in the present case, the complete

annulment of the contested decision. According to BA, the EU judicature is free to

16

Article 190(1) and Article 127(1) of the Rules of Procedure of the Court.


7

exercise that power irrespective of the forms of order sought by the parties, so

that, in the present case, the submission of a request to amend the form of order

was not even necessary to enable the General Court to annul the contested

decision in its entirety. 17

35. The logical outcome of that argument is that, from BA’s perspective, since

the General Court — by upholding the plea raised of its own motion — should

have in any event annulled the contested decision in its entirety, the reasoning set

out in paragraph 90 of the judgment under appeal, in which the General Court

refused BA’s request for the complete annulment of the contested decision, is

incorrect.

36. In those circumstances, the Commission cannot reasonably claim that, by

stating in its reply that the appeal concerns the refusal of that request, BA raises a

new plea, as compared with the plea raised in the appeal, alleging an error of law

in the application of the principle of ne ultra petita. In my view, the plea of

inadmissibility raised against the reply must therefore be dismissed.

(b) Whether the appeal complies with the second paragraph of Article 56 of

the Statute of the Court of Justice of the European Union

37. The Commission submits, first of all, that the appeal does not comply with

the second paragraph of Article 56 of the Statute of the Court of Justice of the

European Union because BA was not unsuccessful in its submissions for the

purposes of that provision. Since the General Court upheld BA’s submissions as

defined in its application, BA was wholly successful at first instance.

38. BA contends that it was unsuccessful in its submissions. At the hearing, it

submitted, in the course of its arguments relating to the issue raised by the General

Court of its own motion, that the contested decision should be annulled in its

entirety and, in the judgment under appeal, the General Court refused that request.

The Commission’s suggested interpretation of the procedural rules would deprive

a party affected by a judgment delivered by the General Court on the basis of a

plea raised by the Court of its own motion of the possibility of obtaining effective

judicial protection from the Court of Justice.

39. As a preliminary point, I note that, under the second paragraph of

Article 56 of the Statute of the Court of Justice of the European Union, ‘an appeal

may be brought [before the Court of Justice] by any party which has been

unsuccessful, in whole or in part, in its submissions. …’.

40. However, there is a linguistic divergence between the French version of the

second paragraph of Article 56 of that statute and its counterpart in English, the

language of the present case. According to the French version, in order for a party

to be able to bring an appeal, that party must have ‘succombé en ses conclusions’,

17

See points 72 to 75 of this Opinion.


8

while the English version states that the party must have been ‘unsuccessful … in

its submissions’. The French version therefore uses the word ‘conclusions’ (form

of order sought), which corresponds to that used in Article 168(1)(d),

Article 169(1) and Article 170(1) of the Rules of Procedure of the Court, while the

English version uses, in contrast, the word ‘submissions’, which does not

correspond to the expression ‘form of order’ used in those provisions and may

cover not only the form of order sought (the petitum), but also the legal arguments

raised before the General Court. Differences are also to be found in other language

versions of the second paragraph of Article 56 of the Statute of the Court of

Justice of the European Union, some of which do not refer to the concept

corresponding to the French word ‘conclusions’ used in the Rules of Procedure of

the Court. 18

41. In those circumstances, since none of those language versions can be said

to take precedence over the others, the second paragraph of Article 56 of the

Statute of the Court of Justice of the European Union must be interpreted by

reference to the purpose and general scheme of the provisions concerning

appeals. 19

42. In particular, it is necessary to ascertain whether, as the Commission

contends, the concept of being ‘unsuccessful … in its submissions’ within the

meaning of that provision may be construed only as referring to the form of order

sought in the original application or, at the very least, in a formal request to amend

the form of order sought.

43. It should be noted, first of all, that it is apparent from the case-law of the

Court that the forms of order sought by the parties are characterised by a stringent

requirement for clarity 20 and, in principle, by their unalterability. 21 This

18

Thus, by way of example, which cannot be claimed to be exhaustive, some language versions,

like the French, use the same terminology in the second paragraph of Article 56 of the Statute of

the Court of Justice of the European Union as in the relevant provisions of the Rules of

Procedure of the Court. Thus, all of those provisions use the same word, namely ‘Anträgen’ in

German, ‘conclusioni’ in Italian, ‘pretensiones’ in Spanish, ‘nõue’ in Estonian and ‘prasījumi’

in Latvian. Other language versions, however, do not use the same terms and the wording of the

second paragraph of Article 56 of that statute does not contain any express reference equivalent

to the French word ‘conclusions’ used in the Rules of Procedure. Consequently, in order to

convey the concept of ‘unsuccessful’, the Dutch version of the second paragraph of Article 56

does not refer to ‘conclusies’, the Danish version does not refer to ‘påstande’, the Greek version

does not refer to ‘αιτήματα’, the Swedish version does not refer to ‘yrkanden’ and the

Portuguese version does not refer to ‘pedidos’.

19 See, to that effect, inter alia, judgment of 25 March 2010, Helmut Müller (C-451/08,

EU:C:2010:168, paragraph 38 and the case-law cited).

20 The Court has consistently held that the forms of order sought in the application initiating

proceedings must be set out unambiguously so that the EU judicature does not rule ultra petita

or indeed fail to rule on a complaint. See, in particular, judgment of 26 January 2017, Mamoli

Robinetteria v Commission (C-619/13 P, EU:C:2017:50, paragraph 31 and the case-law cited).

21 Thus, it is apparent from settled case-law that, in principle, it is not permissible for a party to

alter the very subject matter of the case during the proceedings and that the merits of the action


9

fundamental unalterability is closely related to compliance with the time limits for

bringing legal proceedings. 22

44. However, the unalterability of the form of order is not absolute. There are

some exceptions, which are nonetheless extremely restricted.

45. Accordingly, the Court has occasionally allowed an amendment of the form

of order sought in the application in the course of the proceedings where the

amendment is based on matters of law or of fact which came to light during the

written procedure. 23 Furthermore, an amendment of the form of order is now

possible, under Article 86 of the new Rules of Procedure of the General Court,

which codified existing case-law, 24 where the measure the annulment of which is

sought is replaced or amended by another measure with the same subject matter.

The Court has also accepted, in some specific cases, that the form of order sought

may be clarified during the proceedings. 25 Amendment of the form of order

sought is, however, subject to the strictest requirements as regards precision and

content and must be done formally, 26 all of which is nonetheless possible at the

hearing. 27

46. Where an applicant submits an application to amend the form of order

sought and the General Court expressly refuses the application in its judgment, the

applicant cannot be deprived of the possibility of challenging the legality of the

must be examined solely in the light of the claims contained in the application initiating the

proceedings. See, in particular, judgment of 11 November 2010, Commission v Portugal

(C-543/08, EU:C:2010:669, paragraph 20 and the case-law cited). Also see, to that effect,

judgment of 18 October 1979, GEMA v Commission (125/78, EU:C:1979:237, paragraph 26).

22 In that regard, see point 98 of this Opinion.

23 See judgments of 3 March 1982, Alpha Steel v Commission (14/81, EU:C:1982:76,

paragraph 8); of 8 July 1965, Krawczynski v Commission (83/63, EU:C:1965:70 paragraph 2);

and of 14 July 1988, Stahlwerke Peine-Salzgitter v Commission (103/85, EU:C:1988:398,

paragraph 11). The delivery of a judgment of the Court of Justice may constitute such a new

factor (see judgment of 12 November 2014, Guardian Industries and Guardian Europe v

Commission, C-580/12 P, EU:C:2014:2363, paragraphs 15 to 20).

24 According to the case-law, a measure adopted after an action had been lodged and having the

same subject matter as the contested measure is to be regarded as a new factor allowing the

applicant to amend his pleadings (see judgments of 3 March 1982, Alpha Steel v Commission,

14/81, EU:C:1982:76, paragraph 8, and of 14 July 1988, Stahlwerke Peine-Salzgitter v

Commission, 103/85, EU:C:1988:398, paragraph 11).

25 Thus, in the judgment of 2 June 1976, Kampffmeyer and Others v EEC (56/74 to 60/74,

EU:C:1976:78, paragraphs 6 to 9), the Court allowed later claims to be submitted in order to

determine the extent of the damage suffered.

26 See judgments of 14 December 1962, Compagnie des hauts fourneaux de Chasse v High

Authority (33/59, EU:C:1962:43, p. 388), and of 14 December 1962, Meroni v High Authority

(46/59 and 47/59, EU:C:1962:44, p. 420). Also see paragraph 90 of the judgment under appeal.

27 See, for example, judgment of 12 November 2014, Guardian Industries and Guardian Europe v

Commission (C-580/12 P, EU:C:2014:2363, paragraphs 15 to 20).


10

refusal for the simple reason that he was successful in the original form of order

sought, as set out in the application.

47. It is clear that such an applicant was unsuccessful in his application to

amend the form of order sought. If the Court were to find that the General Court

was incorrect to refuse that application, the applicant might obtain more than he

did as a result of the original form of order sought being granted. Such an

applicant must therefore be given an opportunity to challenge the legality of the

refusal of his application to amend the form of order sought.

48. Moreover, the question whether or not the General Court was fully entitled

to refuse the application to amend the form of order sought by a party goes to the

substance of the case, irrespective of whether the General Court refused the

application on ground of breach of essential procedural requirements.

49. It follows, in my view, that contrary to the Commission’s assertions, the

concept of ‘unsuccessful’ within the meaning of the second paragraph of

Article 56 of the Statute of the Court of Justice of the European Union cannot be

strictly limited to the form of order sought in the original application or to the

form of order sought that has been amended in compliance with formal

requirements. That concept must, by contrast, cover being unsuccessful in any

application made to the General Court during the proceedings on which that Court

has ruled in the judgment under appeal.

50. Moreover, that interpretation of the second paragraph of Article 56 appears

to be consistent with the various language versions of that provision, all of which

refer to the concept of being ‘unsuccessful’ but do not link that concept

necessarily to the form of order formally sought in the original application. 28

51. It follows that, in the present case, since the General Court ruled, in

paragraph 90 of the judgment under appeal, on BA’s ‘implicit’ request to annul

the contested decision in its entirety, refusing that request, BA must be regarded

as having been unsuccessful on that point within the meaning of the second

paragraph of Article 56 of the Statute of the Court of Justice of the European

Union. Its appeal must therefore be considered to be admissible in that respect.

(c) Whether the appeal complies with Article 169(1) of the Rules of

Procedure of the Court

52. Next, the Commission argues that the appeal does not comply with

Article 169(1) of the Rules of Procedure of the Court because it does not seek to

have the operative part of the judgment under appeal set aside. Instead, it seeks to

have the operative part supplemented, by extending the partial annulment

requested at first instance by BA and granted by the General Court to full

annulment.

28

See point 40 and footnote 18 of this Opinion.


11

53. Under Article 169(1) of the Rules of Procedure of the Court, ‘an appeal

shall seek to have set aside, in whole or in part, the decision of the General Court

as set out in the operative part of that decision’.

54. That provision concerns the form of order sought in the appeal relating to

the appeal (while Article 170 of the Rules of Procedure concerns the form of order

sought in the event that the appeal is allowed). In particular, it encapsulates the

basic principle applying to appeals, namely that an appeal must be directed against

the operative part of the General Court’s decision and may not merely seek the

amendment of some of the grounds of that decision. 29

55. In the present case, as is apparent from point 21 of this Opinion, so far as

concerns the form of order sought relating to the appeal, BA submitted two heads

of claim; first, it seeks to have the judgment under appeal set aside ‘in so far as it

limits the scope of the annulment of the [contested] decision to the form of order

sought by BA in its original application for annulment’; and, secondly, it seeks to

have paragraph 1 of the operative part of the judgment under appeal set aside.

56. Under the first head of claim, BA therefore asks the Court to set aside the

grounds of the judgment under appeal serving as the basis for paragraph 1 of the

operative part, in so far as it annuls the contested decision only in part. What is

specifically in issue here is the General Court’s decision that it was restricted in

the present case by the principle of ne ultra petita and its decision to refuse the

‘implicit’ application to amend the form of order which BA claims it made at the

hearing. 30 It should be observed that, according to the case-law of the Court, the

grounds of the judgment under appeal, which constitute the necessary support for

its operative part, are inseparable from it 31 and the operative part of a judgment

must be understood in the light of those grounds. 32

29

See, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-

Aqsa (C-539/10 P and C-550/10 P, EU:C:2012:711, paragraphs 43 to 45).

30 Decisions set out, respectively, in paragraphs 87 and 88 and in paragraphs 90 and 91 of the

judgment under appeal. It is indisputable that, in so far as the measure containing the defective

statement of reasons found to exist invalidated the entire contested decision (evidenced by the

fact that, with respect to the other airlines which challenged the contested decision, the General

Court ordered that the decision be annulled in its entirety, on the basis of the same defective

statement of reasons found to exist as regards BA), if the General Court had not considered

itself restricted by the principle of ne ultra petita and had not refused BA’s application to amend

the form of order sought, it would have annulled the decision in its entirety, which would have

affected paragraph 1 of the operative part of the judgment under appeal.

31 See judgments of 1 June 2006, P & O European Ferries (Vizcaya) and Diputación Foral de

Vizcaya v Commission (C-442/03 P and C-471/03 P, EU:C:2006:356, paragraph 44), and of

15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa (C-539/10 P and C-550/10 P,


32 See, to that effect, judgments of 16 March 1978, Bosch (135/77, EU:C:1978:75, paragraph 4),

and of 26 April 1988, Asteris and Others v Commission (97/86, 99/86, 193/86 and 215/86,

EU:C:1988:199, paragraph 27).


12

57. On the basis of that premiss, under its second head of claim, BA seeks to

have paragraph 1 of the operative part of the judgment under appeal set aside.

58. In that connection, it should also be added that the Court has previously

held that, although it has jurisdiction to review the findings of law on the pleas

argued before the General Court, it must, if the appeals procedure is not to be

rendered largely meaningless, also have jurisdiction to review the legal

conclusions drawn by the General Court from those findings, which also

constitute a point of law. 33

59. In its appeal, BA challenges the extent of the annulment ordered by the

General Court as a consequence of giving effect to the plea it raised of its own

motion. BA therefore challenges the legal conclusions drawn by the General Court

as a result of giving effect to that plea.

60. It follows from all of the foregoing that, in the present case, the

Commission cannot reasonably claim that BA’s appeal does not seek to have the

operative part of the judgment under appeal set aside, as required by

Article 169(1) of the Rules of Procedure of the Court.

(d) Whether the appeal complies with Article 170(1) of the Rules of

Procedure of the Court

61. Lastly, the Commission argues that the appeal does not comply with

Article 170(1) of the Rules of Procedure of the Court. That article does not permit

an appellant to seek a form of order on appeal that goes beyond the form of order

sought at first instance or to request a broader form of relief than that sought

before the General Court. The request made by BA at the hearing before the

General Court concerning the extent of the annulment (paragraph 90 of the

judgment under appeal) cannot be regarded as forming part of the subject matter

of the proceedings before the General Court.

62. Article 170(1) of the Rules of Procedure of the Court provides that ‘an

appeal shall seek, in the event that it is declared well founded, the same form of

order, in whole or in part, as that sought at first instance and shall not seek a

different form of order’ and that ‘the subject matter of the proceedings before the

General Court may not be changed in the appeal’.

63. The introduction of a specific article dealing with the form of order sought

in the event that the appeal is allowed is one of the new features ushered in by the

Rules of Procedure of the Court which came into force on 1 November 2012. That

provision concerns the conclusions that the Court should draw if the appeal is

considered well founded. It follows logically after Article 169(1) of those rules

33

Judgment of 11 December 2008, Commission v Département du Loiret (C-295/07 P,

EU:C:2008:707, paragraphs 97 and 98).


13

and seeks to prevent appellants from being able to submit to the Court claims

which they had not lodged before the General Court. 34

64. In the present case, the form of order sought in the event of BA’s appeal

being allowed are set out in its third head of claim, by which it asks the Court to

annul the contested decision in its entirety.

65. It is necessary to determine whether that claim should be treated as a

‘different form of order’ and whether it is capable of changing the subject matter

of the proceedings for the purposes of Article 170(1) of the Rules of Procedure of

the Court.

66. In that connection, it should be observed, first, that the request in the third

head of claim is exactly the same as the ‘implicit’ request to amend the form of

order which the General Court refused in paragraph 90 of the judgment under

appeal. Moreover, it concerns a question — that of the possible complete

annulment of the contested decision as a result of the General Court giving effect

to the plea raised by it of its own motion — which, as paragraph 90 of the

judgment under appeal shows, was debated before the General Court during the

discussions on that plea.

67. Secondly, if, as is apparent from the considerations set out in points 58 and

59 of this Opinion, an appellant is entitled to challenge on appeal the legal

conclusions drawn by the General Court as a result of upholding a plea (in the

present case, the plea raised of its own motion), that appellant must logically be

entitled to ask the Court, in the event that its appeal is allowed, itself to give due

effect to the consequences that follow as a matter of law from the upholding of

that plea.

68. There is no doubt that if the Court were to grant BA’s appeal, taking the

view that the General Court committed the error of law alleged by BA, it would

necessarily follow that the contested decision must be annulled in its entirety. 35

69. Accordingly, in this instance, the complete annulment of the contested

decision is simply the necessary legal consequence of the form of order sought by

BA in its appeal (mentioned in points 21 and 55 of this Opinion) being granted

and, thus, of the judgment under appeal being set aside.

70. That being so, in the very special circumstances characterising this case, I

do not believe that the effect of Article 170(1) of the Rules of Procedure of the

Court is that the appeal must be dismissed as inadmissible.

34

Such as a fresh claim for damages (see, for example, judgment of 18 March 1993, Parliament v

Frederiksen, C-35/92 P, EU:C:1993:104, paragraphs 34 to 36) or an application for annulment

directed against measures other than the contested measure (see, for example, judgment of

6 March 2001, Connolly v Commission, C-273/99 P, EU:C:2001:126, paragraphs 18 to 20).

35 See footnote 30 of this Opinion.


14

71. It follows that BA’s appeal is, in my view, admissible.

B. First plea in law alleging an error of law as a result of the

misapplication of the principle of ne ultra petita

1. Brief summary of the arguments of the parties

72. By its first plea, BA argues that the General Court erred in law in

considering itself restricted by the principle of ne ultra petita when it found, of its

own motion, that there were fundamental public policy defects vitiating the

contested decision in its entirety.

73. According to BA, where the EU judicature raises an issue of public policy

of its own motion, the inter partes limitations of the principle of ne ultra petita no

longer apply. In those circumstances, the EU judicature must have jurisdiction to

formulate the operative part of the judgment in the manner it sees fit and must not

be constrained in the exercise of that jurisdiction by the form of order sought by

one of the parties.

74. BA submits that if, in cases involving issues of public policy, the EU

judicature is free to depart from the pleas relied on by the parties, it must, by

extension, equally be free to depart from the forms of order they seek. Only then

will it be able to formulate an appropriate operative part of its judgment and

rectify effectively the breaches of public policy it has identified.

75. The consequences of the General Court raising issues of public policy of its

own motion cannot be subjugated to the individual interests of the parties to the

dispute. Nor can they depend on any amendment made by the parties to the forms

of order they seek during the proceedings. That approach would also be

tantamount to placing public policy issues in the hands of the parties.

76. Furthermore, in its consideration in the judgment under appeal of

subsequent national proceedings for damages, the General Court drew an arbitrary

distinction between the position of BA (which benefited only from partial

annulment of the contested decision) and that of the other airlines that also

challenged the decision (which benefited from its annulment in full), even though

all the applicants were in the same position in relation to the fundamental defect in

the statement of reasons identified by the General Court of its own motion.

77. Lastly, BA claims that the General Court’s approach raises concerns as

regards the administration of justice as it encourages applicants routinely to frame

the forms of order they seek in unjustifiably broad terms in an effort to secure a

more wide-reaching annulment in the event that the EU judicature should raise an

issue of public policy of its own motion.

78. The Commission disputes BA’s arguments. In particular, it contends that

BA’s submissions amount to a repudiation of the principles laid down in the line


15

of authority devolving from the judgment in Commission v AssiDomän Kraft

Products and Others (‘AssiDomän’). 36 The difference between AssiDomän and

the present case is simply one of degree. While, in AssiDomän, some addressees

of a Commission decision did not challenge that decision at all, in this case, BA

challenged only some aspects of the contested decision before the General Court.

2. Analysis

79. Did the General Court err in law in considering itself restricted by the

principle of ne ultra petita in this case? Was the General Court entitled, or even

required, by drawing all the appropriate legal conclusions flowing from the fact —

raised of its own motion — that the statement of reasons was defective on grounds

of public policy, thus vitiating the contested decision in its entirety, to annul that

decision completely, notwithstanding the fact that BA sought only partial

annulment of that decision?

80. As indicated in points 5 and 6 of this Opinion, those questions expose the

tensions between different — and occasionally conflicting — legal requirements.

The answers to be given to the questions thus depend on the relationship between

those requirements and the weighing-up of the principles underpinning them.

81. Against that background, I will begin by examining the scope and rationale

of the principles and requirements in issue, before suggesting possible answers to

the above questions.

(a) The principle of ne ultra petita, corollary of the principle that the subject

matter of an action is delimited by the parties

82. It is necessary, first of all, to define the principle of ne ultra petita relied on

by the General Court as the limit, in this case, on its power of annulment.

83. The principle of ne ultra petita stems from the adage ‘ne eat iudex ultra

petita partium’ and prohibits a court required to rule on an action for annulment

from going beyond the forms of order sought by the parties. 37 According to

settled case-law, since it would be ultra vires for the EU judicature to rule ultra

petita, the scope of the annulment granted may not go further than that sought by

the applicant. 38

36

Judgment of 14 September 1999, Commission v AssiDomän Kraft Products and Others

(C-310/97 P, EU:C:1999:407).

37 See Opinion of Advocate General Jääskinen in Galp Energía España and Others v Commission

(C-603/13 P, EU:C:2015:482, point 35).

38 See, ex multis, judgment of 19 January 2006, Comunità montana della Valnerina v Commission

(C-240/03 P, EU:C:2006:44, paragraph 43 and the case-law cited).


16

84. The principle of ne ultra petita is a corollary of the principle that the

subject matter of an action is delimited by the parties, which is a guiding principle

of judicial review proceedings before the EU Courts. Under that principle, it is the

parties that take the initiative in pursuing and delimiting the subject matter of the

case and, in consequence, the court may go no further than that subject matter

(and thus may not rule ultra petita). 39

85. In general terms, the principle that the subject matter of an action is

delimited by the parties and its corollary, the principle of ne ultra petita, are

considered to be an expression of individual autonomy. The question whether and

to what extent an individual asserts his rights before the courts ultimately depends

on that individual’s intent. That notion is, however, applicable primarily in civil

proceedings. 40

86. In public law proceedings, however, the principle that the subject matter of

an action is delimited by the parties and the ne ultra petita rule − and the resulting

limits on judicial powers − have a different scope. 41 Specifically, those principles

must be viewed in the context of the decision to frame judicial review proceedings

under EU law as proceedings dependent on the lodging of an action.

87. Thus, it is apparent from the second to fourth paragraphs of Article 263

TFEU that the EU judicature has jurisdiction to review the legality of measures

adopted by the institutions, bodies, offices and agencies of the European Union

only if — and in so far as — it is seised of an action brought by a person

empowered to do so under those provisions.

39

See, in that regard, the Opinions of Advocate General Kokott in Commission v Alrosa

(C-441/07 P, EU:C:2009:555, point 146) and of Advocate General Wahl in Total v Commission

(C-597/13 P, EU:C:2015:207, points 58 and 59). The principle that the subject matter of an

action is delimited by the parties is embodied in the various rules governing procedure before

the EU Courts, particularly Article 21 of the Statute of the Court of Justice of the European

Union, Article 120(c) of the Rules of Procedure of the Court and Article 76(d) of the Rules of

Procedure of the General Court, under which cases are to be brought before the EU Courts by a

written application which must contain, inter alia, the subject matter of the dispute, the form of

order sought and a brief statement of the pleas in law on which the application is based.

40 See, in that regard, the Opinion of Advocate General Ruiz-Jarabo Colomer in Vedial v OHIM

(C-106/03 P, EU:C:2004:457, point 28). See also judgment of 14 December 1995, van Schijndel

and van Veen (C-430/93 and C-431/93, EU:C:1995:441, paragraphs 20 and 21). It has also been

found that the principle that the subject matter of an action is delimited by the parties aims to

safeguard the rights of the defence and to ensure the proper conduct of proceedings by, in

particular, protecting those proceedings from the delays inherent in the examination of new

pleas (see the Opinion of Advocate General Kokott in Duarte Hueros, C-32/12, EU:C:2013:128,

point 32 and the case-law cited).

41 It has already been observed that the scope of the principle that the subject matter of an action is

delimited by the parties and the ne ultra petita rule may be different in civil law proceedings

compared with public law proceedings. See, in that regard, the Opinion of Advocate General

Jääskinen in Galp Energía España and Others v Commission (C-603/13 P, EU:C:2015:482,

point 36).


17

88. In the absence of such an action, the EU Courts have no jurisdiction

whatsoever to review of their own motion the lawfulness of measures adopted by

the institutions, bodies, offices and agencies of the European Union. 42

89. In other words, the power of the EU judicature to review the lawfulness of

the EU institutions’ activities is subject to the existence and scope of an action for

annulment brought by one of the persons referred to in Article 263 TFEU. If the

EU Courts have not been seised of such an action, they cannot, by interfering in

the areas of activity of the other institutions, bodies, offices and agencies of the

European Union, question the lawfulness of measures adopted by them. 43

90. From that point of view, the limits on judicial powers flowing from the

principle of ne ultra petita, as an expression of the principle that the subject matter

of an action is delimited by the parties, concern not only individual autonomy but

also the principle of the separation of powers, which is a hallmark of the

functioning of the rule of law and which, in the context of the European Union, is

reflected in the principle of institutional balance, a principle which requires that

each of the institutions exercise its powers with due regard for the powers of the

other institutions. 44

91. The principle of ne ultra petita, as its name suggests (ne ultra petita),

relates to the petitum and, therefore, to the claims of the parties as set out in the

forms of order sought. Nonetheless, the Court occasionally refers to that principle

also in connection with the pleas raised by the parties in support of their claims. It

does so, in particular, in the light of the fact that the EU judicature is prohibited

from considering pleas that have not been raised by the parties, with the

exception — specifically — of pleas that it may, or even must, raise of its own

motion. 45

92. From that point of view, the situation whereby the EU Courts raise a plea

of public policy of their own motion may be regarded as an exception to the

principle of ne ultra petita in the broad sense (that is, as referring not only to the

petitum, but also to the pleas put forward to support it). However, the existence of

42

The EU judicature may also review the lawfulness of an EU measure within the context of a

reference for a preliminary ruling on validity or a plea of illegality. Those proceedings are not

among the proceedings which the EU Courts may initiate of their own motion.

43 In line with that approach, the case-law acknowledges that EU measures are in principle

presumed to be lawful and, accordingly, produce legal effects, even if they are vitiated by

irregularities, until such time as they are annulled in an action for annulment or withdrawn or

declared invalid following a reference for a preliminary ruling or a plea of illegality. See, in

particular, judgment of 6 October 2015, Schrems (C-362/14, EU:C:2015:650, paragraph 52 and

the case-law cited).

44 See Article 13(2) TEU. See also judgment of 28 July 2016, Council v Commission (C-660/13,


45 See judgment of 10 December 2013, Commission v Ireland and Others (C-272/12 P,

EU:C:2013:812, paragraphs 27 and 28 and the case-law cited).


18

the EU Courts’ power to raise such pleas of their own motion does not necessarily

mean that, where they exercise that power, they are able to deliver decisions going

beyond the forms of order sought by the parties. These two issues are quite

separate. 46

(b) Compliance with the time limit for bringing legal proceedings as a

requirement of public policy

93. The possibility for the persons referred to in Article 263 TFEU to bring an

action before the EU Courts for review of the legality of an EU measure is subject

to a temporal limitation: the action must be lodged within the time limit laid down

in paragraph six of that article.

94. It is apparent from the case-law of the Court that a decision which has not

been challenged by the addressee within the time limit laid down in that provision

becomes definitive as against that person. 47

95. The Court has also stated that that time limit and the consequences of its

expiry, namely the conferral of finality, are aimed at protecting public interests

and that, as a result, the time limit is a matter of public policy and therefore not

within the discretion of the parties or indeed that of the court, and the EU Courts

are required to consider of their own motion whether time limits have been

complied with. 48

96. That case-law is based, in particular, on the consideration that the purpose

of time limits for bringing legal proceedings is to ensure legal certainty by

preventing EU measures which produce legal effects from being called in question

indefinitely, as well as on the requirements of sound administration of justice and

procedural economy. 49

97. The principles laid down in those decisions apply not only to actions

seeking the complete annulment of a measure, but also to actions seeking partial

annulment. Thus, where an action has been brought seeking the annulment in part

of a measure, the severable provisions 50 of that measure which were not

46

See, in that regard, the Opinion of Advocate General Jacobs in Salzgitter v Commission

(C-210/98 P, EU:C:2000:172, point 150).

47 Judgment of 14 September 1999, Commission v AssiDomän Kraft Products and Others

(C-310/97 P, EU:C:1999:407, paragraph 57 and the case-law cited).

48 See, ex multis, judgment of 8 November 2012, Evropaïki Dynamiki v Commission (C-469/11 P,


49 Judgment of 14 September 1999, Commission v AssiDomän Kraft Products and Others

(C-310/97 P, EU:C:1999:407, paragraph 61).

50 The annulment in part of provisions of a measure which are not severable from the rest of the

measure is impossible and, therefore, any request to that effect is inadmissible. See judgment of

24 May 2005, France v Parliament and Council (C-244/03, EU:C:2005:299, paragraphs 20 and

21).


19

challenged within the time limit for bringing legal proceedings become final,

particularly as regards the addressee.

98. Furthermore, as indicated in point 43 of this Opinion, the public policy

requirements relating to compliance with the time limit for bringing proceedings

are rooted in the fact that, in principle, the forms of order sought by the parties in

actions for annulment cannot be changed. In general terms, the expiry of that

deadline has the effect of setting the forms of order sought in stone and thus

delimiting the subject matter definitively. Permitting an applicant to broaden the

scope of the form of order sought after expiry of the time limit for bringing legal

proceedings would essentially be tantamount to permitting him to circumvent that

time limit and to seek the annulment of a different measure (or a different

provision of a measure) even though the time limit for challenging the measure on

the ground that it is unlawful has expired and the measure (or provision of the

measure) has become final in respect of the applicant. 51

99. Lastly, it should also be noted that, on account of the public policy

requirements underpinning the rules governing the time limits for bringing legal

proceedings, the Court has applied those rules very restrictively, allowing

exceptions only in quite exceptional circumstances. 52

(c) Requirement to safeguard legality underpinning the raising of issues of

public policy of the EU Courts’ own motion

100. The requirement to safeguard legality means that, in the discharge of the

fundamental duty to ensure compliance with EU law entrusted to them by

Article 19 TEU, the EU Courts must not be confined to playing an exclusively

passive role or else they may be forced to base their decisions on erroneous legal

considerations. Thus, some procedural rules and decisions acknowledge that the

EU Courts have jurisdiction to raise points of law of their own motion, described

as pleas based on public policy, allowing them to go beyond the pleas and

arguments put forward by the parties. These are cases involving questions relating

to the proceedings being conducted before them 53 as well as questions concerning

the lawfulness of the contested measure. 54

51

These principles cannot, however, call in question the admissibility, in the present case, of the

form of order sought by BA in the event that the appeal is allowed, consisting in the request to

amend the form of order, which was expressly refused by the General Court in the judgment

under appeal, and being the necessary legal consequence of the appeal being allowed (see

points 66 to 70 of this Opinion).

52 Such as unforeseeable circumstances or force majeure, in accordance with the second paragraph

of Article 45 of the Statute of the Court of Justice of the European Union. See, in that regard, ex

multis, order of 12 July 2016, Vichy Catalán v EUIPO (C-399/15 P, not published,


53 Thus, under Article 53(2) of the Rules of Procedure, the EU Courts may raise of their own

motion the fact that they clearly lack jurisdiction or that an action is manifestly inadmissible


20

101. In general terms, the onus is on the EU Courts to raise of their own motion

the failure to comply with a rule of the EU legal order which appears sufficiently

important to be classified as a matter of public policy and to justify an adverse

finding on their own initiative. Where a finding is made that such a rule has been

infringed, it is of little importance whether that measure is also vitiated by defects

referred to by the applicant in support of his claim for annulment, since defence of

the EU legal order allows, or even requires, the EU Courts, as the arbiters of

legality, to find that the measure in question is vitiated by a defect which, in any

event, calls for its annulment. 55

102. The Court has never provided a precise definition of the concept of a plea

involving question of public policy or identified in abstract terms the criteria for

determining whether or not a plea is based on public policy. Nevertheless, the

case-law provides sufficient material enabling those criteria to be identified with

reasonable precision, in the case of the EU legal order.

103. As I have already had the opportunity of pointing out on several

occasions, 56 I endorse the approach suggested by Advocate General Jacobs in his

Opinion in Salzgitter v Commission (C-210/98 P, EU:C:2000:172). 57 Thus, in my

view, a plea is based on public policy where, first, the rule infringed is designed to

serve a fundamental objective or fundamental value of the EU legal order and

plays an important role in the attainment of that objective or the upholding of that

value and, secondly, that rule was laid down in the interest of third parties or the

public in general and not merely in the interest of the persons directly concerned.

(also see Article 181 of those rules). Under Article 150 of the rules, they may raise of their own

motion an absolute bar to proceeding.

54 Thus, according to the case-law of the Court, the EU Courts may raise the following issues of

their own motion: lack of competence of the institution that adopted the measure (see judgment

of 13 July 2000, Salzgitter v Commission, C-210/98 P, EU:C:2000:397, paragraph 56);

infringement of an essential procedural requirement, namely irregularities which affect the form

of the measure or the procedure followed and which adversely affect the rights of third parties

or persons concerned by that measure or are liable to have an effect on the content of the

measure, such as the absence of due authentication (judgment of 6 April 2000, Commission v

Solvay, C-287/95 P and C-288/95 P, EU:C:2000:189, paragraph 55); failure to give notification

(judgment of 8 July 1999, Hoechst v Commission, C-227/92 P, EU:C:1999:360, paragraph 72);

and defective statement of reasons for the measure (see, ex multis, judgment of 2 December

2009, Commission v Ireland and Others, C-89/08 P, EU:C:2009:742, paragraphs 34 and 35).

55 See Opinion of Advocate General Bot in Commission v Ireland and Others (C-89/08 P,

EU:C:2009:298, paragraph 64). It should be observed, however, that in an earlier point in his

Opinion, Advocate General Bot explained that since the dispute is determined and

circumscribed by the parties, the EU judicature ‘may not grant relief beyond that sought by the

parties’ (point 59).

56 See my Opinion in Bensada Benallal (C-161/15, EU:C:2016:3, points 67 et seq. and the case-

law cited).

57 See points 141 and 142.


21

104. What I am describing is therefore a requirement of legality, which could be

described as an ‘enhanced’ requirement since it concerns the protection of ‘public

policy’, namely the protection of the fundamental values of the EU legal order in

the interest of third parties or the public in general, which justifies the power/duty

of the EU judicature to raise of its own motion pleas based on public policy, even

where they go beyond the pleas submitted by the parties in support of their claims.

(d) Scope of the EU Courts’ power of annulment where they raise an issue

of public policy of their own motion

105. Does such an ‘enhanced’ requirement of legality, linked to the protection of

public policy, which serves as the basis for the EU judicature’s power to raise a

point of law of its own motion, also justify extending its power of annulment

beyond the claims made by the applicant? Does that requirement allow the EU

judicature to call in question parts of a decision which have become final with

respect to the applicant because they were not the subject of legal proceedings?

106. The replies to be given to those questions ultimately depend on which of

the requirements in question described above is to take precedence.

107. As regards that choice, it seems to me that the Court essentially has three

options open to it, only the third of which, for reasons I will explain below, I find

convincing.

108. The first option involves accepting the proposition put forward by BA and

giving precedence to the ‘enhanced’ requirement of legality, conceding that the

EU judicature has the power to go beyond the forms of order sought by the parties

where it raises an issue of public policy. It cannot be denied that there is a certain

logic in that approach. Where the rule infringed is of such importance that it is

classified as raising an issue of public policy and may be raised by the EU Courts

of their own motion, those Courts must be placed in a position whereby,

irrespective of the forms of order sought by the parties, they are able to rectify the

illegality flowing from its infringement. That approach is consistent with the

power of the EU judicature to raise issues of public policy of its own motion,

which, as noted in points 91 and 92 of this Opinion, is an exception to the

principle of ne ultra petita in the broad sense. Although the case-law provides

some support for that approach, the relevant decisions are implicit, isolated, old

and, it would appear, limited to proceedings relating to civil service disputes. 58

58

Thus, in one judgment relating to a civil service dispute, the Court, ruling on the admissibility of

an action for partial annulment, held that ‘… if the Court were to annul the entire measure this

would constitute a ruling ultra petita since the application against the contested decision does

not concern public policy’ (judgment of 28 June 1972, Jamet v Commission, 37/71,

EU:C:1972:57, paragraph 12). On the basis of that judgment, Advocate General Tesauro, in his

Opinion of 15 May 1997 in TWD v Commission (C-355/95 P, EU:C:1996:483, point 24),

considered that if the Court, in that case, had raised of its own motion an issue of public policy

based on the defective statement of reasons for the contested decisions, it would have been able


22

109. The second possibility involves allowing the parties, when making their

submissions (essential to ensure compliance with the principle of audi alteram

partem 59) on the plea the EU judicature seeks to raise of its own motion, to amend

the scope of the forms of order sought in the light of that plea.

110. The third option, which is favoured by the General Court and supported by

the Commission, and which I am also inclined towards, involves giving

precedence to the requirements pertaining to the principle of ne ultra petita and

legal certainty (as regards compliance with the time limit for bringing legal

proceedings), by limiting the EU judicature’s power of annulment to the forms of

order sought by the parties.

111. I believe that the following considerations are relevant in that connection.

112. First, it is necessary to examine AssiDomän, the relevance of which was the

subject of debate between the parties. In the judgment in that case, which also

concerned the lawfulness of a decision on anticompetitive agreements, the Court

held that the annulment of a decision handed down in a judgment with respect to

an applicant does not affect the validity of other identical or similar decisions

vitiated by the same irregularity and addressed to persons who did not challenge

them within the time limit for bringing proceedings. 60 In support of that approach,

the Court referred to the principle of ne ultra petita and to the requirements of

legal certainty underpinning compliance with the time limits for bringing

proceedings.

113. It is true that there are a number of differences between the present case

and AssiDomän. First, in AssiDomän, the illegality vitiating the Commission’s

decision was not the result, unlike in this case, of the infringement of a rule of

public policy. 61 Secondly, AssiDomän involved a situation in which some

companies had not taken any legal action against the decision addressed to them.

They asked the Court to review that decision, after expiry of the time limit for

bringing proceedings, and sought to have the finding of illegality made by the

Court in an action brought by another addressee of the decision extended to them.

to annul the decisions even if that had meant going beyond the application for partial annulment

brought by the applicant.

59 Judgment of 2 December 2009, Commission v Ireland and Others (C-89/08 P, EU:C:2009:742,

paragraphs 50 to 62).

60 See, in particular, paragraphs 52 to 62 of the judgment of 14 September 1999, Commission v

AssiDomän Kraft Products and Others (C-310/97 P, EU:C:1999:407).

61 The annulment of the decision of the Commission at issue in AssiDomän was based on several

infringements of the rights of defence, as well as a lack of evidence of certain anticompetitive

conduct (see judgment of 31 March 1993, Ahlström Osakeyhtiö and Others v Commission

(C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85, EU:C:1993:120,

paragraphs 52, 127, 138, 147, 154 and 167). On the question of observance of the rights of

defence not being a matter of public policy, see my Opinion in Bensada Benallal (C-161/15,

EU:C:2016:3, points 60 et seq., particularly point 93).


23

By contrast, in the present case BA indeed challenged — within the prescribed

time limit for bringing proceedings —the contested decision or, to be precise,

merely a part of that decision on the ground that it is unlawful.

114. However, notwithstanding those differences, I take the view that

AssiDomän is relevant to the assessment of the present case, in so far as the Court

made a clear choice in that judgment: when weighing up the requirement to

safeguard legality and the requirement of legal certainty, it gave precedence to the

latter. 62

115. The issues involved in the present case bear some similarities to those in

AssiDomän. Here, too, there are tensions between, on the one hand, the

requirement to safeguard legality (which, in the context of the present case, is

related to public policy) and, on the other, the requirement (also a matter of public

policy) of legal certainty, as regards the parts of the contested decision which BA

did not challenge within the time limit for bringing proceedings becoming final

with respect to BA. In the instant case, and in contrast, however, to AssiDomän,

the latter requirement is in addition to the requirement concerning the limits on the

EU judicature’s power of annulment flowing from the principle of ne ultra petita,

as described in points 82 to 90 of this Opinion.

116. Secondly, in its case-law, the Court has identified one situation in which

the public policy-related requirements of legality must take precedence over the

requirements of legal certainty (as well as the requirements related to the principle

of ne ultra petita).

117. This is where a measure is vitiated by an irregularity the seriousness of

which is so obvious that it cannot be permitted by the EU legal order, with the

result that it must be treated as non-existent. In those circumstances, the Court has

accepted that the EU judicature is entitled to find that such a measure produces no

legal effects, even where the measure is challenged after the time limit for

bringing proceedings has expired. 63 Even though the Court has not yet had the

opportunity to say so expressly, the conclusion has to be drawn that in such truly

exceptional circumstances the EU judicature is entitled to find that the contested

measure is non-existent even if it means going beyond the forms of order sought

by the parties, as an exception to the principle of ne ultra petita.

62

Or, to borrow the ‘colourful’ expression used by Advocate General Ruiz-Jarabo Colomer in his

Opinion of 28 January 1999 in Commission v AssiDomän Kraft Products and Others

(C-310/97 P, EU:C:1999:36), the Court preferred ‘injustice’ to ‘disorder’ (point 1).

63 See, in that regard, judgments of 26 February 1987, Consorzio Cooperative d’Abruzzo v

Commission (15/85, EU:C:1987:111, paragraph 10), and of 15 June 1994, Commission v BASF

and Others (C-137/92 P, EU:C:1994:247, paragraph 49). For the application in concreto of

those principles, see judgment of 10 December 1969, Commission v France (6/69 and 11/69,

not published, EU:C:1969:68, paragraphs 11 to 13), in which the Court examined the possible

non-existence of the contested measure even after expiry of the time limit for bringing

proceedings.


24

118. The Court has, however, expressly stated that from the gravity of the

consequences attaching to a finding that a measure of an EU institution is non-

existent it is self-evident that, for reasons of legal certainty, such a finding is

reserved for quite extreme situations, 64 where the measure in question contains

particularly serious and manifest defects. 65

119. It is therefore only in such extreme situations that, in contrast to the

approach taken in AssiDomän, the requirement to safeguard legality may justify

allowing the EU judicature to exceed the boundaries established by the rules

delimiting its duty to review the legality of measures, boundaries imposed, in

particular, by the requirement to ensure stability in legal situations mentioned in

points 94 to 98 of this Opinion, as well as the requirement of institutional balance,

referred to in point 90.

120. The finding that a decision addressed to a person is vitiated by a defective

statement of reasons, even if that defect amounts to a serious illegality capable of

vitiating the contested measure in its entirety, does not seem to me to constitute

one of the extreme situations which, the Court has accepted, may justify

exceeding those boundaries, unless the conditions warranting a finding that the

measure is non-existent are met. 66

121. It is true that the requirement of legality, which I have termed an

‘enhanced’ requirement, as it relates to the public policy nature of the rule

infringed, justifies allowing the EU Courts to make a finding of such illegality of

their own motion. However, that requirement does not, in my view, justify

allowing the EU Courts to overstep the boundaries of their powers, as delimited in

concreto by the appeal for judicial protection made by an applicant, as set out in

the form of order sought, thereby undermining the finality, with respect to the

applicant, of the parts of the decision not subject to challenge.

122. It should be noted that it is the addressee of the decision forming the

subject matter of the action himself who determines in concreto the limits on the

court’s involvement, by specifying in his claims the extent of his need for judicial

protection.

123. From that point of view, the fact that the court may have raised an issue of

public policy of its own motion does not seem to me to be capable of justifying

64

Judgment of 15 June 1994, Commission v BASF and Others (C-137/92 P, EU:C:1994:247,

paragraph 50).

65 See, ex multis, judgment of 11 October 2016, Commission v Italy (C-601/14, EU:C:2016:759,

paragraph 33 and the case-law cited).

66 In particular, in the present case, the condition that that must evidently be the case is not met, as

demonstrated by the fact that BA neither identified that defect nor raised it in its action before

the Court. The situation would be different if the measure were completely devoid of reasons.

See, in that regard, judgment of 10 December 1957, Société des usines à tubes de la Sarre v

High Authority (1/57 and 14/57, EU:C:1957:13, pp. 112 to 113).


25

any alteration of those limits during the proceedings, either. First, it is apparent

from the case-law referred to in point 95 of this Opinion that the time limits for

bringing legal proceedings does not fall within the discretion of the EU judicature.

Secondly, a plea that could have been raised by the applicant himself does not

constitute a new factor warranting an amendment of the form of order sought. 67 It

is for those reasons that I am not convinced by the second option, mentioned in

point 109 of this Opinion.

124. In any event, as is apparent from point 45 of this Opinion and paragraph 90

of the judgment under appeal, any amendment of the form of order sought is

subject to very strict procedural requirements which, as the General Court found,

BA has not fulfilled in the present case.

125. Accordingly, my view is that the General Court did not err in law in

considering its powers to be limited by the form of order sought by BA in its

application when it drew the appropriate conclusions from its finding that the

statement of reasons for the contested decision was defective.

126. It is true that where, as in the present case, there is a conflict of

fundamental principles of the legal order and it is necessary to give precedence to

one over the other, none of the outcomes will be entirety satisfactory. Thus, in

AssiDomän, the result of the Court’s approach was that a decision that was

vitiated by illegality but had become final continued to produce legal effects.

There is a similar outcome in the present case: the part of the contested decision

not challenged before the EU Courts will continue to produce legal effects,

notwithstanding the fact that it is unlawful. However, as in AssiDomän, that

outcome will simply be the consequence of BA’s decision not to challenge that

part of the contested decision.

127. Lastly, a brief assessment is called for of the other arguments put forward

by BA, which do not affect the solution I propose.

128. First of all, I do not believe that the approach taken by the General Court

entailed an infringement of the principle of equal treatment. There is no doubt that

BA was not in the same situation as the other carriers which challenged the

contested decision and in respect of which the General Court ordered that the

decision be annulled in its entirety. Unlike BA, all of those carriers applied for the

annulment of the contested decision in its entirety in the forms of order sought.

129. Next, I do not consider that proceedings for damages before the national

courts, which the General Court mentioned in paragraphs 39 to 42 of the judgment

under appeal, are in any way capable of justifying allowing the EU Courts to rule

ultra petita. The possible triggering of liability under civil law for damage

sustained as a result of the anticompetitive conduct of an applicant is not, in

67

See point 45 of this Opinion and the case-law cited.


26

principle, relevant to the exercise of the powers conferred on the EU Courts by

Article 263 TFEU.

130. Lastly, there is no basis for BA’s argument, referred to in point 77 of this

Opinion, that possible concerns as regards the sound administration of justice

warrant an exception to the limitation on the power of the EU Courts to rule ultra

petita. If a party submits claims which are in no way supported by the pleas set

out in its application, those claims will simply be dismissed. In addition, the

petitum is defined by the scope of the claim (and, therefore, the extent of the

annulment sought), irrespective of whether or not the pleas put forward in support

of the form of order sought are well founded. Thus, even if the pleas put forward

in support of the claim for annulment are not well founded, it is perfectly feasible

for the EU Courts to annul the contested measure, within the limits of the petitum,

if they raise of their own motion an issue of public policy which will lead to the

annulment of the measure in issue.

131. In my view, BA’s first plea in law must therefore be rejected.

C. Second plea in law alleging infringement of the principle of effective

judicial protection laid down in Article 47 of the Charter

1. Brief summary of the arguments of the parties

132. By its second plea, BA argues that even if it were to be found that the

General Court did not err in law in relying on the principle of ne ultra petita, it in

any event infringed the hierarchically superior principle of effective judicial

protection laid down in Article 47 of the Charter by restricting the extent of the

annulment to the form of order sought in the application.

133. According to BA, it is apparent from the case-law of the European Court of

Human Rights 68 as well as that of the Court of Justice 69 that that principle

requires a full and unrestricted review, in law and in fact, of a Commission

decision penalising conduct contrary to the rules on competition. That review

must also include the power to annul the decision.

134. BA observes that, in the judgment under appeal, the General Court found

inconsistencies in the contested decision and acknowledged that those

inconsistencies had infringed BA’s rights of defence and had prevented that Court

from exercising its powers of review. However, the General Court failed to draw

the appropriate conclusions from those findings in the operative part of the

judgment under appeal. It thus infringed the principle of effective judicial

68

Judgment of the European Court of Human Rights of 27 September 2011, Menarini Diagnostics

Srl v. Italy, No 43509/08.

69 Judgments of 8 December 2011, Chalkor v Commission (C-386/10 P, EU:C:2011:815), and of

8 December 2011, KME Germany and Others v Commission (C-389/10 P, EU:C:2011:816).


27

protection. According to BA, those inconsistencies raise particularly acute issues

in the national proceedings for damages in respect of the findings made in the

contested decision.

135. The Commission contends that BA’s second plea is unfounded.

2. Analysis

136. The Court has held that the power of judicial review provided for by the

Treaties over decisions of the Commission penalising anticompetitive conduct − a

review comprising a review of legality provided for in Article 263 TFEU,

supplemented by the unlimited jurisdiction in respect of the amount of the fine

provided for in Article 31 of Regulation (EC) No 1/2003 70 − is not contrary to the

requirements of the principle of effective judicial protection enshrined in

Article 47 of the Charter. 71

137. The Court has, however, stated that that principle requires the EU

judicature to carry out a full and unrestricted review, in law and in fact, of the

Commission’s decision and to have the power, in particular, to annul that

decision. 72

138. Within the same context, the Court has also observed that proceedings

before the EU Courts are inter partes and that, with the exception of pleas raising

issues of public policy, which the Courts are required to raise of their own motion,

such as the failure to state the reasons for a contested decision, it is for the

applicant to raise pleas in law against such a decision and to adduce evidence in

support of those pleas. 73

139. In addition, it has been held that failure to review the whole of the

contested decision of the EU Courts’ own motion does not contravene the

principle of effective judicial protection. Compliance with that principle does not

require that the EU Courts — which are indeed obliged to respond to the pleas in

law raised and to carry out a review of both the law and the facts — should be

70

Council Regulation of 16 December 2002 on the implementation of the rules on competition

laid down in Articles [101] and [102] of the [FEU] Treaty (OJ 2003 L 1, p. 1).

71 Judgments of 8 December 2011, Chalkor v Commission (C-386/10 P, EU:C:2011:815,

paragraph 67), and of 6 November 2012, Otis and Others (C-199/11, EU:C:2012:684,

paragraph 63).


paragraph 67), and of 8 December 2011, KME Germany and Others v Commission (C-389/10 P,

EU:C:2011:816, paragraphs 133 and 136).


paragraph 64), and of 8 December 2011, KME Germany and Others v Commission (C-389/10 P,

EU:C:2011:816, paragraph 131). Also see judgment of 6 November 2012, Otis and Others

(C-199/11, EU:C:2012:684, paragraph 61).


28

required to undertake of their own motion a new and comprehensive investigation

of the file. 74

140. Lastly, the Court has also held that the right to effective judicial protection

is in no way undermined by the strict application of EU rules concerning

procedural time limits, which meet the requirement of legal certainty and the need

to avoid all discrimination or arbitrary treatment in the administration of justice. 75

Indeed, those reasons relating to legal certainty are why the time limit for bringing

proceedings constitutes an inherent limitation on the right of access to the

courts. 76

141. The case-law referred to above shows that, although the principle of

effective judicial protection guaranteed by Article 47 of the Charter requires the

EU Courts to carry out a full and unrestricted review, in law and in fact, of

Commission decisions penalising anticompetitive conduct the lawfulness of which

is in dispute before those courts, that does not mean that, if it is to be effective, the

judicial review cannot be carried out subject to certain rules of procedure which

satisfy various fundamental requirements.

142. Thus, it is apparent from the inter partes nature of proceedings before the

EU Courts, and the fact that observance of the right guaranteed by Article 47 of

the Charter does not require those Courts to conduct a review of their own motion

of the contested decision in its entirety, that a judicial review mechanism, based

on the principle that the subject matter of an action is delimited by the parties and

that the Courts may not exceed those limits, is compatible with the right in

question. Accordingly, the fact that the full and unrestricted review — which the

EU Courts are obliged to carry out and which requires them to have the power to

annul the contested decision — is limited by the claims of the parties as set out in

the forms of order sought is not contrary to the principle of effective judicial

protection.

143. Furthermore, since the right to effective judicial protection is not

undermined by the strict application of the rules governing time limits for bringing

proceedings, observance of that right by no means requires that, in order to ensure

that the judicial protection enjoyed by the parties is effective, the EU Courts

should be obliged, by way of exception to those rules, 77 to expand the scope of

the parties’ claims beyond the claims made in the form of order sought, thereby

extending the reach of its review beyond the matters submitted to it for

74

Judgment of 8 December 2011, Chalkor v Commission (C-386/10 P, EU:C:2011:815,

paragraph 66).

75 Order of 22 October 2010, Seacid v Parliament and Council (C-266/10 P, EU:C:2010:629,

paragraph 30 and the case-law cited).

76 See, to that effect, order of 12 September 2013, Ellinika Nafpigeia and 2. Hoern v Commission

(C-616/12, not published, EU:C:2013:884, paragraph 31).

77 See points 43 and 98 of this Opinion.


29

adjudication, even where the Courts have raised a public policy issue of their own

motion and/or made a finding of infringement of the rights of the defence.

144. It follows that, in the present case, compliance with the principle of

effective judicial protection did not require the General Court to go beyond the

form of order sought by BA, with the result that BA’s second plea in law must be

rejected.

145. In those circumstances, I take the view that BA’s appeal must be dismissed

in its entirety.

V. Costs

146. Under Article 184(2) of the Rules of Procedure of the Court, where the

appeal is unfounded, the Court is to make a decision as to costs. Under

Article 138(1) of those rules, which applies to the appeal procedure pursuant to

Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if

they have been applied for in the successful party’s pleadings.

147. If the Court adopts my assessment concerning BA’s appeal, BA will be the

unsuccessful party. Since the Commission has applied for costs, I propose that the

Court order BA to pay the costs of this appeal.

VI. Conclusion

148. In the light of the foregoing considerations, I propose that the Court should:

– dismiss the appeal;

– order British Airways to pay the costs.

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