Trioplast Industrier AB v European Commission.
Date: 2017-12-20
As regards, first of all, the admissibility of that ground of appeal, it should be recalled that it follows, inter alia, from Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal. An appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly rejected by the General Court, does not satisfy the requirement to state reasons under those provisions (see judgment of 17 May 2017, Portugal v Commission, C‑339/16 P, EU:C:2017:384, paragraph 19 and the case-law cited).
However, provided that the appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be argued again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (judgments of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 51, and of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 47).
As regards the merits of the first ground of appeal, first of all, it is apparent from settled case-law concerning the admissibility of actions for annulment that, in order to ascertain whether an act may be the subject of such an action, it is necessary to look to the substance of that act, the form in which it was adopted being in principle irrelevant in that regard (see, to that effect, in particular, judgments of 22 June 2000, Netherlands v Commission, C‑147/96, EU:C:2000:335, paragraph 27, and of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraphs 42 and 43).
In that regard, it is also apparent from settled case-law that only measures or decisions which seek to produce legal effects which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position may be the subject of an action for annulment (see, in particular, judgments of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 29; of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 51; and of 9 December 2014, Schönberger v Parliament, C‑261/13 P, EU:C:2014:2423, paragraph 13).
Thus, an action for annulment is, in principle, only available against a measure by which the institution concerned definitively determines its position upon the conclusion of an administrative procedure. On the other hand, intermediate measures whose purpose is to prepare for the definitive decision, or measures which are mere confirmation of an earlier measure or purely implementing measures, cannot be treated as ‘acts open to challenge’, in that such acts are not intended to produce autonomous binding legal effects compared with those of the act of the EU institution which is prepared, confirmed or enforced (judgment of 19 January 2017, Commission v Total and Elf Aquitaine, C‑351/15 P, EU:C:2017:27, paragraph 37 and the case-law cited).
In that judgment, the Court first of all recalled, citing the judgment of 6 December 2007, Commission v Ferriere Nord (C‑516/06 P, EU:C:2007:763, paragraph 29) that such letters only constitute, as a general rule, an enforcement notice, not entailing autonomous legal consequences compared with the original decision of the Commission imposing a fine and, as the case may be, default interest. The Court, however, stated, next, that that was not the case of the letters in question in the case giving rise to the judgment of 19 January 2017, Commission v Total and Elf Aquitaine (C‑351/15 P, EU:C:2017:27), in that they demanded that the undertakings concerned pay default interest in spite of the payment in full of the original amount of the fine and, therefore, were, in fact, a modification of the pecuniary obligation for which those undertakings were liable (judgment of 19 January 2017, Commission v Total and Elf Aquitaine, C‑351/15 P, EU:C:2017:27, paragraph 48).