Gérard Buono and Others v European Commission.
Date: 2014-10-14
26. In that regard, it must be recalled that, under Article 83 of the Rules of Procedure, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court or the case must be decided on the basis of an argument which has not been debated between the parties or the persons referred to in Article 23 of the Statute of the Court of Justice of the European Union (see judgments in Pohotovosť , C‑470/12, EU:C:2014:101, paragraph 21, and Emerging Markets Series of the DFA Investment Trust Company , C‑190/12, EU:C:2014:249, paragraph 20).
27. In addition, pursuant to the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgment in Commission and Others v Kadi , C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 57 and the case-law cited).
46. As regards the appellants’ third and fourth grounds of appeal in Case C‑13/13 P, the General Court, in paragraphs 77 to 87 of the judgment under appeal, examined the supposed unusual and special nature of the harm alleged, for the sake of completeness in the event of the principle of EU liability for a lawful act being recognised in EU law (see, to that effect, judgment in Dorsch Consult  v Council and Commission , C‑237/98 P, EU:C:2000:321, paragraphs 18 and 19).
47. It is settled case-law that, in the context of an appeal, where one of the grounds adopted by the General Court is sufficient to sustain the operative part of its judgment, any defects that might vitiate other grounds of the judgment concerned cannot influence that operative part and, accordingly, a plea relying on such defects is ineffective and must be dismissed (judgment in Commission  v CAS Succhi di Frutta , C‑496/99 P, EU:C:2004:236, paragraph 68).
52. In the first place, as regards the admissibility of the second ground of appeal raised by the appellants in Case C‑13/13 P, the Court has already held that, where the General Court has joined two cases and given a single judgment which answers all the pleas submitted by the parties to the proceedings before the General Court, each of those parties may criticise the reasoning concerning pleas which, before the General Court, were raised only by the applicant in the other joined case (judgment in ISD Polska and Others  v Commission , C‑369/09 P, EU:C:2011:175, paragraph 85 and the case-law cited).
58. In that regard, with respect to the admissibility of that plea in law, in paragraphs 53 and 54 of the judgment under appeal, the General Court held that the judgment in AJD Tuna  (EU:C:2011:153), delivered by the Court of Justice on a date after that when the action was brought, had to be considered to be a factor allowing a new plea in law to be raised, since that judgment has changed the legal situation which existed at the time that the application was lodged. Indeed, the General Court found that, following the judgment in AJD Tuna  (EU:C:2011:153), Regulation No 530/2008 has been invalidated in its entirety and ceased to produce legal effects under the application of the presumption of legality.
59. It should be noted that, in the present case, the General Court’s reasoning derives from a misreading of the judgment in AJD Tuna  (EU:C:2011:153). In particular, it is clear from paragraphs 105 to 108 of that judgment that, by postponing until 23 June 2008 the entry into force of the measures prohibiting fishing only for purse seiners flying the flag of Spain, without that extra period being objectively justified, the Commission infringed the principle of non-discrimination. Accordingly, it follows from that finding by the Court that, by rejecting all other grounds of appeal seeking to establish the invalidity of Regulation No 530/2008, the judgment in AJD Tuna  (EU:C:2011:153) declared that regulation to be invalid only to the extent that the purse seiners flying the flag of Spain were given an extra week of fishing, but maintained the validity of the date of the prohibition set for the remaining fishing vessels, that is 16 June 2008.
60. It follows that, contrary to the assessment of the General Court, Regulation No 530/2008 having been declared invalid only to the extent that it granted more favourable treatment to purse seiners flying the flag of Spain, the adoption of the judgment in AJD Tuna  (EU:C:2011:153) did not constitute a new element of law which arose during the proceedings before the General Court. In fact, since the prohibition on fishing enacted for purse seiners flying the flag of Greece, France, Italy, Cyprus and Malta remained valid, that judgment has only confirmed a legal situation of which the applicants at first instance, appellants in Case C‑12/13 P, were aware when they brought their action.
62. However, it must be borne in mind that, if the grounds of a judgment of the General Court disclose an infringement of EU law but the operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about the setting aside of that judgment (see, to that effect, judgments in FIAMM and Others  v Council and Commission , EU:C:2008:476, paragraph 187, and Diputación Foral de Vizcaya  v Commission , C‑465/09 P to C‑470/09 P, EU:C:2011:372, paragraph 171).
64. In view of the foregoing, the second ground of appeal raised by the appellants in Case C‑13/13 P, while being well founded, must be rejected as being ineffective (see, to that effect, Ojha  v Commission , C‑294/95 P, EU:C:1996:434, paragraph 52, and FIAMM and Others  v Council and Commission , EU:C:2008:476, paragraph 189).
The first and second grounds of appeal raised in Case C‑12/13 P
Arguments of the parties