CELEX: 62019CC0093
Language: en
Date: 2020-04-23 00:00:00
Title: Opinion of Advocate General Kokott delivered on 23 April 2020.

OPINION OF ADVOCATE GENERAL
   KOKOTT
   delivered on 23 April 2020 (
         1
      )
   
      Case C‑93/19 P
   
   European External Action Service (EEAS)
   v
   Chantal Hebberecht
   (Appeal – Action for annulment – Civil service law – European External Action Service – Assignment of staff – Post of Head of Delegation of the European Union to Ethiopia – Principle of rotation – Application for assignment to be extended – Refusal – Equality in practice between men and women – Obligation to consider gender-specific interests – Annulment of discretionary decision adopted by the administration – Failure to consider interests that should have informed the discretionary decision – Interests that must be considered)
   
      I. Introduction
   
   
            1.
         
         
            In deciding whether to extend the assignment of an official of the European Union, that is, her remaining in a particular post, may her employer disregard gender-specific considerations from the outset?
         
      
            2.
         
         
            This question has arisen in a dispute between the European External Action Service (‘the EEAS’) and one of its officials seeking an extension to her assignment to a managerial post as Head of Delegation of the European Union to Ethiopia. In refusing that application, the EEAS took the view that consideration should be given to the interests of the service only and that gender could not play a part in that decision.
         
      
            3.
         
         
            However, by its judgment of 27 November 2018 in Hebberecht v EEAS (T‑315/17, EU:T:2018:842) (‘the judgment under appeal’), the General Court held that equality in practice between men and women is an essential element to be considered in all decisions adopted on the basis of the Staff Regulations and, for that reason, it annulled the contested decision.
         
      
            4.
         
         
            At a time when the term ‘gender mainstreaming’ (
                  2
               ) is on everybody’s lips, the Court therefore has to decide for the first time on the legal dimension of equality in practice between men and women in staffing decisions by the European Union and what, if any, consequences, should follow from it.
         
      
            5.
         
         
            The EEAS is of the opinion that a duty to consider gender-specific interests in this specific case would in fact be tantamount to imposing an obligation on it to extend the assignment of the official concerned. There is, however, no directly applicable legal basis for any such ‘positive discrimination’. In any event, according to the EEAS, the General Court should not have annulled the decision merely by reason of the fact that the EEAS failed to consider gender-related elements.
         
      
      II. Legal context
   
   
            6.
         
         
            The Staff Regulations of Officials of the European Union were established by Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission. (
                  3
               )
         
      
            7.
         
         
            Recital 7 of Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (
                  4
               ) reads as follows:
            ‘Compliance should be observed with the principle of non-discrimination as enshrined in the EC Treaty, which thus necessitates the further development of a staff policy ensuring equal opportunities for all, regardless of sex, physical capacity, age, racial or ethnic identity, sexual orientation and marital status.’
         
      
            8.
         
         
            According to Article 1b of the Staff Regulations of Officials of the European Union, as amended by Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 (
                  5
               ) (‘the Staff Regulations’), this applies to officials of the EEAS.
         
      
            9.
         
         
            Article 1d of the Staff Regulations provides:
            ‘1.   In the application of these Staff Regulations, any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation shall be prohibited.
            …
            2.   With a view to ensuring ensure full equality in practice between men and women in working life, which shall be an essential element to be considered in the implementation of all aspects of these Staff Regulations, the principle of equal treatment shall not prevent the institutions of the European Union from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
            3.   The appointing authorities of the institutions shall determine, by agreement, after consulting the Staff Regulations Committee, measures and actions to promote equal opportunities for men and women in the areas covered by these Staff Regulations, and shall adopt the appropriate provisions notably to redress such de facto inequalities as hamper opportunities for women in these areas.
            …
            6.   While respecting the principle of non-discrimination and the principle of proportionality, any limitation of their application must be justified on objective and reasonable grounds and must be aimed at legitimate objectives in the general interest in the framework of staff policy. …’
         
      
      III. Background to the dispute and procedure before the General Court
   
   
            10.
         
         
            The background to the dispute and the procedure before the General Court can be summarised as follows for the purpose of these appeal proceedings.
         
      
            11.
         
         
            The respondent is an official of the EEAS. On 1 September 2013, she was appointed as Head of Delegation of the European Union to Ethiopia for a period of four years.
         
      
            12.
         
         
            On 15 April 2016, she applied for her assignment to be extended by one year to 1 September 2018, giving as her reason that she wished to spend a fifth year adding to her experience in Ethiopia before retiring on 1 September 2018.
         
      
            13.
         
         
            By decision adopted on 30 June 2016 (‘the contested decision’), the appointing authority of the EEAS rejected her application. It noted that ‘a clear policy of mobility after a maximum of four years in the posting is applied in order to ensure regular rotation of heads of delegations’.
         
      
            14.
         
         
            The respondent initially lodged a complaint against that decision in accordance with Article 90(2) of the Staff Regulations and, when that was rejected, she brought an action before the General Court.
         
      
            15.
         
         
            In support of her action, the respondent claimed in particular that it is in the interests of the service to extend her assignment and that her departure would cause a break in continuity in the service at management level within the EEAS. She also argues that extending her assignment as a grade AD 14 female head of delegation would be exemplary positive discrimination.
         
      
            16.
         
         
            The EEAS, on the other hand, contended both in the complaint procedure and before the General Court that an extension is not in the interests of the service and that, furthermore, the fact that the employee is a woman cannot be considered, due to the absence of any such obligation when examining an extension applied for, as the extension has to be justified by the interests of the service only.
         
      
            17.
         
         
            By the judgment under appeal, the General Court admitted the action brought by the applicant at first instance and respondent to the appeal inasmuch as she requested that the contested decision be annulled.
         
      
            18.
         
         
            Although the General Court held that the respondent had not shown that the EEAS’s evaluation of the interests of the service was manifestly wrong (
                  6
               ) and, moreover, that the EEAS could have assumed without any manifest error of assessment that continuity in the service could also be assured by the deputy head of delegation remaining in place, (
                  7
               ) it found that, in disregarding equality in practice between men and women in its decision on the applicant’s application for an extension, even though the legislature considered that to be an essential element of the Staff Regulations, the EEAS had infringed Article 1d(2) and (3) of the Staff Regulations. (
                  8
               ) The General Court noted in that context that the EEAS had emphasised, both in the written procedure and in the hearing before the General Court, that the policy of equality in practice between men and women and the policy on mobility are unrelated and that applications for extensions are processed without regard to whether the applicant is a man or a woman. (
                  9
               )
         
      
            19.
         
         
            As the operative part of the contested decision might have been worded differently had equality in practice between men and women not been excluded from the EEAS’s assessment from the outset, the General Court annulled the contested decision. (
                  10
               )
         
      
      IV. Proceedings before the Court of Justice
   
   
            20.
         
         
            By its appeal of 6 February 2019, received by the Court on 8 February 2019, the EEAS claims that the Court should:
            
                     –
                  
                  
                     set aside the judgment of the General Court of 27 November 2018 in Hebberecht v EEAS (T‑315/17, EU:T:2018:842);
                  
               
                     –
                  
                  
                     dismiss the action brought before the General Court; and
                  
               
                     –
                  
                  
                     order the [respondent] to pay the costs.
                  
               
      
            21.
         
         
            The respondent failed to appear at the appeal proceedings.
         
      
      V. Legal assessment
   
   
            22.
         
         
            The fact that the respondent failed to appear does not harm her case. That is because, in terms of subject matter, the appeal proceedings only concern the question of whether the errors in law complained of justify annulment of the judgment under appeal. This question has to be answered objectively and independently of the opposing party’s claims.
         
      
            23.
         
         
            By its only ground of appeal, the EEAS argues that the General Court erred in law in basing its judgment on an infringement of Article 1d(2) of the Staff Regulations.
         
      
            24.
         
         
            In the opinion of the EEAS, the General Court ‘obviously assumes’ that Article 1d(2) of the Staff Regulations contains a directly applicable principle (the promotion of women) that obliges the EEAS to adopt a decision in the applicant’s favour (paragraphs 93 and 94 of the judgment under appeal), which assumption is vitiated by an error in law, as the appointing authority is only obliged to take certain ‘positive discrimination’ measures if it has adopted appropriate provisions on such measures within the meaning of Article 1d(3) of the Staff Regulations.
         
      
            25.
         
         
            It follows from the wording of the ground of appeal that it is based on a particular interpretation of the judgment by the EEAS. For that reason, it is necessary to consider the precise wording of the material passages of the judgment under appeal.
         
      
            26.
         
         
            The General Court found in paragraphs 93 and 94 of the judgment under appeal that ‘in Article 1d(2) of the Staff Regulations, the legislature not only announces the adoption of measures by the institutions but also states, without the declaration being accompanied by any time limit or condition, and without it being subject to the adoption of certain measures, that gender equality is an“essential” element to be considered in the implementation of “all” aspects of the Staff Regulations. It follows that, by excluding gender equality from the considerations surrounding the adoption of the decision concerning the applicant’s extension request, despite that element being regarded as essential in the eyes of the legislature, the EEAS infringed the statutory provisions relied on by the applicant’.
         
      
            27.
         
         
            The General Court found that, as a result of that error in law, the contested decision should be annulled, as the operative part of that decision ‘could have been different if considerations relating to gender equality had not, as a matter of principle, been excluded at the outset from the assessment undertaken by the EEAS, even though decisions concerning the organisation of its services must fall within the legal framework established by the Staff Regulations’. (
                  11
               )
         
      
            28.
         
         
            At first glance therefore, the appeal by the EEAS is based on an incorrect interpretation of the judgment under appeal. That is because all that follows from the contested passages is that the General Court found that, in disregarding gender-specific elements in its decision from the outset, the EEAS had infringed Article 1d(2) of the Staff Regulations. In the opinion of the General Court, that, in and of itself, justified annulment of the contested decision.
         
      
            29.
         
         
            Contrary to the contention of the EEAS, the General Court did not find that the EEAS was necessarily obliged to adopt a decision in the respondent’s favour.
         
      
            30.
         
         
            Nonetheless, there is cause, first, to investigate if the General Court erred in law in finding that it follows from Article 1d(2) of the Staff Regulations that the appointing authority must consider gender-specific interests when deciding whether or not to extend an official’s assignment (A).
         
      
            31.
         
         
            Second, I shall examine if the General Court erred in law in assuming that the decision of the EEAS might have turned out differently, had it considered those interests, and therefore had to be annulled. I shall also investigate, in that context, whether the General Court implicitly found by that assumption that the EEAS was obliged to extend the respondent’s assignment as a ‘positive discrimination’ measure (B).
         
      
      
         A.
       
         General obligation to consider gender-specific elements in staffing decisions
      
   
   
            32.
         
         
            The EEAS contends that the first clause of Article 1d(2) of the Staff Regulations, under which ‘full equality in practice between men and women in working life … shall be an essential element to be considered in the implementation of all aspects of these Staff Regulations’, does not imply any general obligation on the part of the appointing authorities to consider precisely those elements in all decisions taken. On the contrary, the first clause of that provision must necessarily be read in combination with the second clause of the provision, which states that the appointing authorities may provide for specific advantages for the under-represented sex. In other words, the first part of that provision does not have an autonomous meaning, as it refers exclusively to the powers to adopt ‘positive discrimination’ measures.
         
      
            33.
         
         
            The General Court held that Article 1d(2) of the Staff Regulations contains two regulations that have to be considered separately of each other. On this point, it found in paragraph 84 of the judgment under appeal that it follows from that provision, first, that equality in practice between men and women is an essential element in the implementation of the Staff Regulations that must be considered in ‘all’ aspects of that implementation and, second, that that provision empowers the institutions to adopt measures to compensate for the under-representation of women in particular functions.
         
      
            34.
         
         
            The history of Article 1d(2) of the Staff Regulations illustrates that the power to adopt such measures has existed since the Staff Regulations were amended by Regulation (EC, ECSC, Euratom) No 781/98 of the Council of 7 April 1998, (
                  12
               ) whereas the addendum that equality in practice between men and women in working life is ‘an essential element to be considered in the implementation of all aspects of these Staff Regulations’ was only inserted under Regulation (EC) No 723/2004. That suggests that that addendum does indeed have an autonomous meaning.
         
      
            35.
         
         
            According to recital 7 of that regulation, it follows in this context that the objective of the amendment was to safeguard the principle of non-discrimination enshrined in primary law, thereby guaranteeing in particular equal opportunities for all, regardless of sex.
         
      
            36.
         
         
            Equality and equality in practice between men and women are key objectives of the European Union that fundamentally inform all policy and work sectors. That is illustrated by the fact that they are anchored in horizontal provisions, such as Article 2 TEU, the second subparagraph of Article 3(3) TEU and Article 8 TFEU.
         
      
            37.
         
         
            The ban on all forms of discrimination based on sex is just one aspect of the EU policy of equality. With regard to work and employment, Article 119 of the EEC Treaty already prohibited the Member States from discriminating in the matter of pay. This is now anchored in Article 157 TFEU. The Treaty of Amsterdam added a fourth paragraph to what is now Article 157 TFEU, further empowering the Member States to adopt ‘positive discrimination’ measures.
         
      
            38.
         
         
            Aside from simply prohibiting discrimination, on the one hand, and providing for the adoption of certain advantages, on the other, a comprehensive guarantee of equal opportunities and equal treatment between men and women also depends on the inclusion of gender-specific perspectives in all EU policies and measures. (
                  13
               ) That obligation takes account of equality in practice between men and women as a horizontal task of the European Union.
         
      
            39.
         
         
            That a comprehensive guarantee of equality of rights between men and women includes that latter aspect is also illustrated by the provisions of the Charter of Fundamental Rights of the European Union (‘the Charter’), which, as is apparent from its Article 51(1), are addressed to all the institutions, bodies, offices and agencies of the Union.
         
      
            40.
         
         
            In addition to the ban on discrimination based on sex enacted in Article 21 of the Charter, the second paragraph of Article 23 of the Charter allows ‘positive discrimination’ measures to be adopted. Furthermore, the first paragraph of Article 23 of the Charter states that equality between women and men must be ensured in all areas, including employment, work and pay. (
                  14
               ) It follows from the explanations relating to the Charter that this rule is based on Article 8 TFEU, which requires the Union to eliminate inequalities and to promote equality in practice between men and women in all its activities.
         
      
            41.
         
         
            Although the Union may have adopted decisions that do not require any discussion of those objectives, as the EU institutions are not obliged to consider in their decisions aspects which are manifestly irrelevant or insignificant or plainly of secondary importance to the decision, (
                  15
               ) it cannot be assumed that gender-specific elements in connection with staff management decisions are meaningless, as equality in practice between men and women plays a key role in work and employment.
         
      
            42.
         
         
            Consequently, Article 1d of the Staff Regulations simply codifies the rules that specifically follow from Articles 21 and 23 of the Charter for the decision-making practice of the appointing authorities. First, Article 1d(1) of the Staff Regulations prohibits discrimination based on sex. Then, the first part of Article 1d(2) enacts the obligation to consider equality in practice between men and women in the implementation of all aspects of the Staff Regulations and, lastly, the second part of that paragraph allows special advantages to be granted to the under-represented sex.
         
      
            43.
         
         
            As the General Court rightly found in paragraph 93 of the judgment under appeal, the obligation to consider equality in practice between men and women in Article 1d(2) of the Staff Regulations is not subject to any temporal limitation or condition. Nor, given the comprehensive wording of that provision, can it be assumed that certain staff management decisions, such as extending an assignment, should be exempt from it.
         
      
            44.
         
         
            This is in keeping with the character of Article 23(1) of the Charter as subjective law. ‘Ensuring’ equality between men and women in all areas does not require any implementation measures other than the introduction of the specific advantages referred to in Article 23(2) of the Charter. For that reason, it is not to be regarded simply as a principle within the meaning of Article 52(5) of the Charter that initially required implementation. It has to be noted in this context that the Court recognised equal treatment of men and women as an actionable fundamental right very early on. (
                  16
               )
         
      
            45.
         
         
            Thus, the argument of the EEAS, that the appointing authorities are not obliged, when adopting individual decisions such as that contested in this case, to consider gender-specific interests, (
                  17
               ) would appear to be untenable in light of the aforesaid findings and the clear wording of Article 1d(2) of the Staff Regulations.
         
      
      
         B.
       
         Legal consequences of disregarding gender-specific interests in this case
      
   
   
            46.
         
         
            However, the ground of appeal argued by the EEAS goes further. It argues that the General Court did not in reality confine itself to finding that the appointing authorities have to consider gender-specific interests when deciding whether to extend an official’s assignment; on the contrary, it implicitly found that the EEAS was obliged by Article 1d(2) of the Staff Regulations to extend the respondent’s assignment as a measure of ‘positive discrimination’. In any event, according to the EEAS, disregard of the obligation to consider gender-specific interests was no reason to annul the contested decision, as the interests of the service in rotation outweighed them. Moreover, the General Court had not contested the assessment of the interests of the service by the EEAS.
         
      
            47.
         
         
            First, it again has to be noted in this context that it follows from paragraphs 93 and 94 of the judgment under appeal (
                  18
               ) that, in the opinion of the General Court, the infringement of Article 1d(2) of the Staff Regulations follows solely from the complete disregard for gender-specific elements in the decision. At no point did the General Court find that Article 1d(2) of the Staff Regulations had been infringed because the EEAS had failed to adopt specific measures in the respondent’s favour.
         
      
            48.
         
         
            However, the EEAS appears to have drawn broader conclusions from paragraph 97 of the judgment under appeal. The General Court found in that paragraph that the decision might have turned out differently, had the EEAS not excluded equality in practice between men and women from its assessment from the outset. (
                  19
               ) The EEAS has interpreted that paragraph as meaning that the General Court found that, had those interests been considered, the decision would necessarily have turned out differently, and that, therefore, it had ultimately imposed the obligation on it to adopt a particular measure, that is, to extend the respondent’s assignment, even though no obligation to do so followed from Article 1d(2) of the Staff Regulations.
         
      
            49.
         
         
            In this context, the EEAS also engages in extensive argument in its appeal as to why the decision in this case would not in fact have turned out differently even if gender-specific interests had been considered. In the opinion of the EEAS, this proves that the General Court wrongly held in paragraph 97 of the judgment under appeal that the decision might have turned out differently and wrongly annulled the contested decision based on that error in law.
         
      
            50.
         
         
            However, that line of argument overlooks the nature and function of the review of the legality of discretionary decisions of the administration by the Union courts.
         
      
            51.
         
         
            The administration is granted powers of discretion, including in cases such as this, in which the decision requires various interests to be assessed and weighed. (
                  20
               ) Where the administration has such discretion in its decisions, the Union courts restrict their review, as the General Court rightly found in paragraph 28 of the judgment under appeal, to whether the exercise of that discretion by the administration contains a manifest error or whether the administration clearly exceeded the bounds of its discretion. (
                  21
               ) In particular, the Union courts review whether the administration examined, carefully and impartially, all the relevant facts of the individual case. (
                  22
               )
         
      
            52.
         
         
            The reason for limited review of such decisions is the separation of powers and the principle of institutional balance, which prevents the General Court from substituting its decision for that of the authority. (
                  23
               )
         
      
            53.
         
         
            However, if the General Court finds in the course of its review that the administration erred, that error cannot, as a rule, but result in annulment of the decision of the administration if, as the General Court rightly found in paragraph 96 of the judgment under appeal, it may have affected the content of the decision. (
                  24
               )
         
      
            54.
         
         
            The question of whether an error may have affected the content of a decision is a legal question. The criteria by which that question must be examined are the type of error made and whether the decision fell within the ambit of any circumscribed powers or was a discretionary decision.
         
      
            55.
         
         
            It is logically impossible, for example, for certain formal and procedural errors to affect the content of the decision, such as where the decision is adopted on precisely the same legal basis with and without the error. (
                  25
               )
         
      
            56.
         
         
            The same applies in principle to a decision that falls within the ambit of any circumscribed powers; it is impossible for additional elements to bring about a different outcome, as the authority must adopt the prescribed decision anyway if the requirements for it are fulfilled. (
                  26
               )
         
      
            57.
         
         
            With discretionary decisions, on the other hand, for which the authority must assess and weigh various interests, there is, as a rule, always the possibility that the decision would have turned out differently had an element relevant to the decision, which the authority excluded from the outset, been considered. (
                  27
               ) That is because, otherwise, the General Court would substitute its decision on the facts for that of the authority, which is precluded under case-law. (
                  28
               )
         
      
            58.
         
         
            Contrary to the assumption of the EEAS, it does not follow from this that a new decision by the authority would necessarily turn out differently. (
                  29
               ) That is because the decision on merits rests solely with the administration. Therefore, the EEAS’s discretionary decision in this case should have been informed both by the interests of the service, which, in the opinion of the General Court, it assessed without any manifest error of assessment, (
                  30
               ) and by the relevant gender-specific elements.
         
      
            59.
         
         
            Thus, it may very well be that the respondent ultimately receives an identical decision following review of her application. However, the only criterion for annulment of the decision is that, given the nature of the decision or the type of error, the possibility that the error affected the content of the decision cannot be discounted. (
                  31
               )
         
      
            60.
         
         
            Moreover, an identical decision may be adopted in cases in which the contested decision is annulled on the ground of infringement of an essential formal requirement. That simply confirms the fact that the recipients of decisions by the administration have a claim within certain limits to lawful administrative action per se, including to a decision not vitiated by an error of assessment.
         
      
            61.
         
         
            It follows from these considerations that, in a case such as this, in which the appointing authority of the EEAS should have weighed and considered various interests, the General Court cannot but find that the decision may have turned out differently had all relevant elements been considered. Based on the above findings, they include gender-specific elements. (
                  32
               )
         
      
            62.
         
         
            Indeed, had the General Court found that the decision could not have turned out differently, it would invariably have substituted itself for the appointing authority of the EEAS. That is because, in order to make that finding, the General Court would have had to assess the gender-specific interests itself and balanced them against the interests of the service. However, the General Court is not allowed to act in lieu of the authority. (
                  33
               )
         
      
            63.
         
         
            It therefore follows that, in finding, based on the fact that the EEAS failed to consider a relevant element in its discretionary decision, that the decision might have turned out differently had that element been considered, the General Court did not commit an error in law. Consequently, it was right to annul the contested decision.
         
      
      VI. Conclusion
   
   
            64.
         
         
            In conclusion, I suggest that the Court rule as follows:
            
                     1.
                  
                  
                     The appeal brought by the European External Action Service against the judgment of the General Court of 27 November 2018, Hebberecht v EEAS (T‑315/17, EU:T:2018:842), is dismissed.
                  
               
                     2.
                  
                  
                     The European External Action Service is ordered to pay the costs of the appeal proceedings.
                  
               
      (
         1
      )	Original language: German.
   (
         2
      )	See, with regard to that term, Communication from the Commission of 21 February 1996, ‘Incorporating equal opportunities for women and men into all Community Policies and Activities’, COM(96) 67 final, p. 2.
   (
         3
      )	OJ 1968 L 56, p. 1.
   (
         4
      )	OJ 2004 L 124, p. 1.
   (
         5
      )	OJ 2013 L 287, p. 15.
   (
         6
      )	Paragraphs 28 to 36 of the judgment under appeal.
   (
         7
      )	Paragraphs 42 to 44 of the judgment under appeal.
   (
         8
      )	Paragraph 93 of the judgment under appeal.
   (
         9
      )	Paragraphs 86 to 88 of the judgment under appeal.
   (
         10
      )	Paragraph 97 of the judgment under appeal.
   (
         11
      )	Paragraph 97 of the judgment under appeal.
   (
         12
      )	OJ 1998 L 113, p. 4.
   (
         13
      )	See, in that regard, Communication from the Commission of 21 February 1996, ‘Incorporating equal opportunities for women and men into all Community Policies and Activities’, COM(96) 67 final, p. 2.
   (
         14
      )	The Court has already expressly highlighted the difference between the ban on discrimination contained in Article 21 of the Charter and the obligation to ensure equality between men and women contained in the first paragraph of Article 23 of the Charter; see judgment of 1 March 2011, Association belge des Consommateurs Test-Achats and Others (C‑236/09, EU:C:2011:100, paragraph 17).
   (
         15
      )	Judgments of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 167), and of 6 November 2012, Éditions Odile Jacob v Commission (C‑551/10 P, EU:C:2012:681, paragraph 48).
   (
         16
      )	See, in that regard, judgments of 15 June 1978, Defrenne (149/77, EU:C:1978:130, paragraphs 26 and 29); of 30 April 1996, P. v S. (C‑13/94, EU:C:1996:170, paragraph 19); and of 27 April 2006, Richards (C‑423/04, EU:C:2006:256, paragraph 23).
   (
         17
      )	See paragraphs 85 to 88 of the judgment under appeal.
   (
         18
      )	Reproduced in point 26 of this Opinion.
   (
         19
      )	Reproduced in point 27 of this Opinion.
   (
         20
      )	Judgment of 29 April 2004, Italy v Commission (C‑372/97, EU:C:2004:234, paragraph 83); of 26 May 2005, Tralli v ECB (C‑301/02 P, EU:C:2005:306, paragraph 58); and of 14 July 2005, Rica Foods v Commission (C‑40/03 P, EU:C:2005:455, paragraph 55). See also, in that regard, Prek, M. and Lefèvre, S., ‘“Administrative discretion”, “Power of appraisal” and “Margin of appraisal” in judicial review proceedings before the General Court’, Common Market Law Review, vol. 56, 2019, p. 339, in particular pp. 350-351.
   (
         21
      )	Judgment of 14 July 2005, Rica Foods v Commission (C‑40/03 P, EU:C:2005:455, paragraph 54).
   (
         22
      )	Judgment of 18 July 2007, Industrias Químicas del Vallés v Commission (C‑326/05 P, EU:C:2007:443, paragraph 77).
   (
         23
      )	See, to that effect, judgments of 8 February 2000, Emesa Sugar (C‑17/98, EU:C:2000:70, paragraph 53), and of 14 July 2005, Rica Foods v Commission (C‑40/03 P, EU:C:2005:455, paragraph 55). See also Prek, M. and Lefèvre, S., ‘“Administrative discretion”, “Power of appraisal” and “Margin of appraisal” in judicial review proceedings before the General Court’, Common Market Law Review, vol. 56, 2019, p. 339, in particular p. 362. See, in that regard, my earlier Opinion in FruconaKošice v Commission (C‑73/11 P, EU:C:2012:535, point 92).
   (
         24
      )	See judgments of 10 July 1980, Distillers Company v Commission (30/78, EU:C:1980:186, paragraph 27); of 16 June 2016, SKW Stahl-Metallurgie and SKW Stahl-Metallurgie Holding v Commission (C‑154/14 P, EU:C:2016:445, paragraph 69); and of 4 April 2019, OZ v EIB (C‑558/17 P, EU:C:2019:289, paragraph 76).
   (
         25
      )	See, to that effect, judgments of 21 March 1990, Belgium v Commission (C‑142/87, EU:C:1990:125, paragraph 48), and of 16 June 2016, SKW Stahl-Metallurgie and SKW Stahl-Metallurgie Holding v Commission (C‑154/14 P, EU:C:2016:445, paragraph 70).
   (
         26
      )	See judgment of 6 July 1983, Geist v Commission (117/81, EU:C:1983:191, paragraph 7), and, to that effect, judgments of 15 September 2005, BioID v OHIM (C‑37/03 P, EU:C:2005:547, paragraph 47), and of 26 April 2007, Alcon v OHIM (C‑412/05 P, EU:C:2007:252, paragraph 65).
   (
         27
      )	This would only not apply in special circumstances that reduce discretion to zero. However, no such argument was made either at first instance or in these appeal proceedings.
   (
         28
      )	See, to that effect, judgments of 8 July 1965, Fonzi v Commission (27/64 and 30/64, EU:C:1965:73); of 27 January 2000, DIR International Film and Others v Commission (C‑164/98 P, EU:C:2000:48, paragraph 38); 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 60); of 22 December 2008, British Aggregates v Commission (C‑487/06 P, EU:C:2008:757, paragraph 141); and of 26 March 2019, Commission v Italy (C‑621/16 P, EU:C:2019:251, paragraphs 88 and 103).
   (
         29
      )	According to settled case-law, the General Court would have no jurisdiction whatsoever to impose any such obligation; see judgments of 27 April 1989, Turner v Commission (192/88, EU:C:1989:181, paragraphs 14 and 15); of 23 April 2002, Campogrande v Commission (C‑62/01 P, EU:C:2002:248, paragraph 43); and of 2 October 2014, Strack v Commission (C‑127/13 P, EU:C:2014:2250, paragraph 146).
   (
         30
      )	See paragraphs 28 to 36 of the judgment under appeal.
   (
         31
      )	Whereas, according to the case-law of the General Court, there is no legitimate interest in securing the annulment of a decision by the administration where, if the action for annulment is successful, the administration is bound to adopt a decision which is identical in content; see judgment of 31 January 2008, Federación de Cooperativas Agrarias de la Comunidad Valenciana v OCVV – Nador Cott Protection (Nadorcott) (T‑95/06, EU:T:2008:25, paragraph 126 and the case-law cited). See also judgment of 6 July 1983, Geist v Commission (117/81, EU:C:1983:191, paragraph 7).
   (
         32
      )	See points 34 to 45 of this Opinion.
   (
         33
      )	See points 52 and 57 of this Opinion.