Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych v European Commission.
Date: 2020-04-30
38


In that regard, it should be recalled that, according to settled case-law, the subject matter of the dispute, like the interest in bringing proceedings, must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (judgment of 4 September 2018ClientEarth v Commission, C‑57/16 P, EU:T:2018:660, paragraph 43 and the case-law cited).
39


An applicant may, in certain cases, retain an interest in seeking annulment of the contested act in order to induce the author of that act to make suitable amendments in the future, and thereby avoid the risk that the unlawfulness alleged in respect of that act will be repeated (judgments of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 63 and the case-law cited, and of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 48).
40


The continuation of that interest presupposes that that unlawfulness is liable to recur in the future, irrespective of the particular circumstances of the case in question (judgments of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 52, and of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 48).
41


It also follows from the case-law of the Court of Justice that the continuation of an applicant’s interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained (judgment of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 65).
45


However, the Court of Justice has already recognised that documents relating to pre-litigation stage infringement proceedings, including documents exchanged between the Commission and the Member State concerned in the context of an EU Pilot procedure, enjoy a general presumption of confidentiality (see, to that effect, judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 81 and the case-law cited).
56


In the second place, the reasoning followed by the General Court is plainly inconsistent with the case-law of the Court of Justice set out in paragraphs 78 and 79 of its judgment of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331), according to which the interest in pursuing the action after a contested act ceased to produce legal effects may be justified by the fact that recognition of the alleged illegality might procure an advantage for the applicant.
62


Furthermore, since Igpour, by that ground, claims in essence that, by the order under appeal, the General Court deprived it of any effective judicial protection, in breach of Article 47 of the Charter of Fundamental Rights, it should be borne in mind that, in accordance with settled case-law of the Court of Justice, that provision is not intended to change the system of judicial review laid down by the Treaties, particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union (judgments of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 97, and of 25 October 2017, Romania v Commission, C‑599/15 P, EU:C:2017:801, paragraph 68 and the case-law cited) and, therefore, it similarly does not change the conditions for assessing the interest in bringing proceedings.
72


In that regard, it should be recalled that it is for the applicant to prove its interest in bringing proceedings, which is an essential and fundamental prerequisite for any legal proceedings (judgment of 7 November 2018, BPC Lux 2 and Others v Commission, C‑544/17 P, EU:C:2018:880, paragraph 33).
73


Although it is apparent from the case-law of the Court of Justice that the possibility of an action for compensation suffices to justify an interest in bringing proceedings, that is nevertheless conditional on that action not being hypothetical (see, to that effect, judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 69 and 79 and the case-law cited, and of 7 November 2018, BPC Lux 2 and Others v Commission, C‑544/17 P, EU:C:2018:880, paragraph 43). In that respect, as was observed in paragraph 41 above, the continuation of such an interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained.
82


It should be borne in mind that, under Article 170(1) of the Rules of Procedure of the Court of Justice, the subject matter of the proceedings before the General Court may not be changed in the appeal. Thus, the jurisdiction of the Court of Justice in an appeal is confined to a review of the findings of law on the pleas argued before the General Court. Accordingly, a party cannot put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court since that would effectively allow that party to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court (see, to that effect, judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 35 and the case-law cited).