Opinion of the Advocate General — ECLI:EU:C:2017:406
Date: 2017-05-30
Language of the case: English
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded
Origin: United Kingdom

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 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) 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. 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 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 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) 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. 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) 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. 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. 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 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 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 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 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 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 plc to pay the costs. 1 Original language: French. 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). 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. 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. 13 Paragraph 92 of the judgment under appeal and paragraph 1 of the operative part. 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. 16 Article 190(1) and Article 127(1) of the Rules of Procedure of the Court. 17 See points 72 to 75 of this Opinion. 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 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). 28 See point 40 and footnote 18 of this Opinion. 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, EU:C:2012:711, paragraph 49 and the case-law cited). 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). 33 Judgment of 11 December 2008, Commission v Département du Loiret (C‑295/07 P, EU:C:2008:707, paragraphs 97 and 98). 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. 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). 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 Españaand Others v Commission (C‑603/13 P, EU:C:2015:482, point 36). 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, EU:C:2016:616, paragraph 32 and the case-law cited). 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). 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, EU:C:2012:705, paragraph 50 and the case-law cited). 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). 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, EU:C:2016:546, paragraph 23 and the case-law cited). 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 (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. 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 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 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). 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. 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). 67 See point 45 of this Opinion and the case-law cited. 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). 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). 72 Judgments of 8 December 2011, Chalkor v Commission (C‑386/10 P, EU:C:2011:815, 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). 73 Judgments of 8 December 2011, Chalkor v Commission (C‑386/10 P, EU:C:2011:815, 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). 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.