British Airways plc v European Commission.
Date: 2017-11-14
51


It should be noted, as observed by the Advocate General in point 54 of his Opinion, that that provision encapsulates the basic principle applying to appeals, namely that an appeal must be directed against the operative part of the General Court’s decision and may not merely seek the amendment of some of the grounds of that decision (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).
54


In the third place, as regards the objection of inadmissibility raised by the Commission to the effect that the appeal does not comply with the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union or with Article 170(1) of the Court’s Rules of Procedure, it should be observed that the examination of that objection requires on the part of the Court an assessment of the scope of the terms ‘submissions’ and ‘form of order sought’ at first instance and ‘subject matter of the proceedings’ before the General Court, within the meaning of those provisions.
81


It should be noted at the outset that, as the Court has held on many occasions, since the court reviewing the legality of an act cannot rule ultra petita, it cannot grant an annulment which goes beyond that sought by the applicant (see judgments 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, and of 14 September 1999, Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 52).
82


Moreover, although the authority of res judicata exerted by an annulling judgment of a court of the EU judicature attaches to both the operative part and the reasoning that constitutes the ratio decidendi of the judgment, it cannot entail annulment of an act not challenged before the EU judicature but alleged to be vitiated by the same illegality (judgment of 14 September 1999, Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 54).
83


The Court has also consistently held that a decision which has not been challenged by the addressee within the time limits laid down by the sixth paragraph of Article 263 TFEU becomes definitive as against him (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).
84


That line of case-law is based in particular on the consideration that the purpose of having time limits for bringing legal proceedings is to ensure legal certainty by preventing EU measures which produce legal effects from being called into question indefinitely, as well as on the requirements of good administration of justice and procedural economy (judgment of 14 September 1999, Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 61).
85


It follows from the above, as the Advocate General observed, in essence, in points 94 and 97 of his Opinion, that an act, or the parts of an act, concerning a person, which is not challenged before the courts of the EU judicature cannot be annulled by those courts and thus becomes final as regards that person.
86


It should also be noted that, in accordance with the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, Article 120(c) and (d) of the Court’s Rules of Procedure and Article 44(1)(c) and (d) of the Rules of Procedure of the General Court of 2 May 1991, in direct actions before the EU courts, the application by which the action is brought must state, inter alia, the subject matter of the proceedings, a summary of the pleas in law relied on and the form of order sought by the applicant.
87


It follows, as the Advocate General observed in point 84 of his Opinion, that, under the system governing judicial review proceedings before the EU courts, it is the parties that take the initiative in pursuing the case and delimiting its subject matter, inter alia by identifying in the form of order sought the act, or part of the act, which they intend to submit to judicial review.
88


It is true that the Court has consistently held that the EU courts must raise of their own motion pleas involving matters of public policy (see, to that effect, inter alia, judgment of 2 December 2009, Commission v Ireland and Others, (C‑89/08 P, EU:C:2009:742, paragraph 34 and the case-law cited).
90


As a consequence, while, as the Court has previously held, by raising of their own motion a plea involving matters of public policy which, a priori, has not been put forward by the parties, the EU courts do not go beyond the scope of the dispute that has been brought before them, or in any way infringe the rules of procedure relating to the presentation in the application of the subject matter of the dispute and the pleas in law (judgment of 2 December 2009, Commission v Ireland and Others, (C‑89/08 P, EU:C:2009:742, paragraph 35), the position would be different if, following their substantive examination of the contested measure, those courts, on the basis of a plea raised of their own motion, were to annul a measure to an extent that went beyond the annulment sought in the form of order they were duly requested to make, on the ground that such an annulment was necessary to remedy the unlawfulness established of their own motion in carrying out their substantive analysis.
103


However, as the Court has previously held, the fact that the General Court declined to review of its own motion the whole of the contested decision does not contravene the principle of effective judicial protection (see, to that effect, judgment of 8 December 2011, Chalkor v Commission (C‑386/10 P, EU:C:2011:815, paragraph 66).
104


Indeed, according to the Court’s case-law, the judicial review provided for under Article 263 TFEU, together with the unlimited jurisdiction in respect of the amount of the fine provided for under Article 31 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1), involves review by the EU courts of both the law and the facts, and means that they have the power to assess the evidence, to annul the contested decision and to alter the amount of a fine (see, to that effect, judgment of 8 December 2011, Chalkor v Commission (C‑386/10 P, EU:C:2011:815, paragraph 67).