Salvatore Aniello Pappalardo and Others v European Commission.
Date: 2017-09-13
13


In its judgment of 14 October 2014, Buono and Others v Commission (C‑12/13 P and C‑13/13 P, EU:C:2014:2284, paragraphs 59 and 60), the Court of Justice, hearing an appeal against the judgment of 7 November 2012, Syndicat des thoniers méditerranéens and Others v Commission (T‑574/08, not published, EU:T:2012:583), held that the General Court had, in that judgment, misinterpreted the judgment of 17 March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), in holding that, by the latter judgment, the Court of Justice had declared Regulation No 530/2008 to be invalid in its entirety. In that regard, the Court of Justice made clear that the judgment in AJD Tuna had declared Regulation No 530/2008 invalid only to the extent that it granted more favourable treatment to Spanish seiners, but had upheld the validity of the date of the prohibition of bluefin tuna fishing set in Article 1 of Regulation No 530/2008 for purse seiners flying the flag of Greece, France, Italy, Cyprus or Malta.
32


The Court has on various occasions noted the importance in the EU legal order of the principle of res judicata (judgment of 29 March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraph 123 and the case-law cited).
33


Here, as the General Court in essence observed, in paragraph 25 of the judgment under appeal, the Court of Justice held in its judgment of 17 March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), in response to a request for a preliminary ruling concerning the validity of Regulation No 530/2008, that the regulation was invalid in so far as the fishing prohibitions it laid down took effect from 23 June 2008 solely for Spanish fishermen, while purse seiners flying the flags of Greece, France, Italy, Cyprus and Malta were subject to those prohibitions from 16 June 2008, without that difference in treatment being objectively justified. As has been explained in paragraph 13 of the present judgment, the Court made clear in its judgment of 14 October 2014, Buono and Others v Commission (C‑12/13 P and C‑13/13 P, EU:C:2014:2284, paragraphs 59 and 60) –– which was given in the appeal brought against the judgment of the General Court deciding upon a claim for compensation brought by French fishermen –– that the invalidity of Regulation No 530/2008 concerned only Article 2 thereof, which related to Spanish fishermen, and that Article 1 of the regulation therefore continued to be valid in relation to purse seiners flying the flag of or registered in Greece, France, Italy, Cyprus or Malta.
35


Thus, even if it is accepted that any uncertainty there may have been as to the exact scope of the judgment of 17 March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), was finally dispelled only as a result of the clarification provided in the judgment of 14 October 2014, Buono and Others v Commission (C‑12/13 P and C‑13/13 P, EU:C:2014:2284), the fact remains that the first judgment (AJD Tuna) must be deemed to have had, from the time of its delivery, the scope as defined in the second judgment (Buono and Others v Commission) (see, by analogy, judgment of 12 February 2008, Kempter, C‑2/06, EU:C:2008:78, paragraph 35).
37


It follows from well-established case-law of the Court of Justice that the force of res judicata extends only to the matters of fact and law actually or necessarily settled by a judicial decision (judgment of 29 March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraph 123).
39


As to the appellants’ argument concerning the legitimate expectations which they claim to have derived from the order of the General Court of 14 February 2012, Italy v Commission (T‑305/08, not published, EU:T:2012:70), it should be recalled that, in accordance with settled case-law of the Court of Justice, the right to rely on the principle of the protection of legitimate expectations extends to any person whom an institution of the European Union has caused, by giving him precise assurances, to entertain justified hopes. Information which is precise, unconditional and consistent, in whatever form it is given, constitutes such assurances (judgment of 16 December 2010, Kahla Thüringen Porzellan v Commission, C‑537/08 P, EU:C:2010:769, paragraph 63 and the case-law cited). By contrast, a person may not plead breach of that principle unless he has been given those assurances (judgment of 16 December 2008, Masdar (UK) v Commission, C‑47/07 P, EU:C:2008:726, paragraph 81).
48


In paragraphs 16, 17 and 23 of the judgment under appeal, the General Court noted that it follows from settled case-law of the Court of Justice that in order for the European Union to incur non-contractual liability, a number of conditions must be satisfied, which include the condition that the conduct alleged against the institutions be unlawful on account of a sufficiently serious breach of a rule of law intended to confer rights on individuals (see, to that effect, judgment of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraphs 106, 172 and 173).
49


The General Court further explained that, in accordance with that case-law, if any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions for such liability (judgments of 19 April 2007, Holcim (Deutschland) v Commission, C‑282/05 P, EU:C:2007:226, paragraph 57, and of 30 April 2009, CAS Succhi di Frutta v Commission, C‑497/06 P, not published, EU:C:2009:273, paragraph 40).
52


However, it follows from the Court’s settled case-law that the principle of equal treatment must be reconciled with the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party (judgment of 10 November 2011, The Rank Group, C‑259/10 and C‑260/10, EU:C:2011:719, paragraph 62).
57


That said, it is settled case-law of the Court of Justice that, if the grounds of a decision of the General Court contain an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not one that should cause that decision to be set aside, and a substitution of grounds must be made (judgment of 26 January 2017, Mamoli Robinetteria v Commission, C‑619/13 P, EU:C:2017:50, paragraph 107 and the case-law cited).