European Court Procedure: A Practical Guide 9781841130538, 9781782257769, 9781509900916

The General Court’s Rules of Procedure of 2015, as well as the re-establishment of a two-tier EU judiciary in 2016, are

211 10 9MB

English Pages [779] Year 2020

Table of contents :
Foreword
About the Authors
Abbreviations
Outline Contents
Detailed Contents
Table of Treaties, Conventions and EU Legislation
Part 1. Enforcement of EU Law and Judicial Organisation of the EU
1.1. Introduction – Enforcement of EU Law and Judicial Avenues (Luszcz)
1.2. The Court of Justice of the European Union (Luszcz)
Part 2. Enforcement of EU Law against Member States and Private Parties
2.1. Infringement Actions (Kristof)
2.2. Preliminary Rulings on Interpretation (Geulette)
Part 3. Protection against Acts of the EU
3.1. Action for Annulment (Luszcz)
3.2. Action for Failure to Act (Bottka)
3.3. Action for Damages (Farley)
3.4. Staff Cases (Bottka)
3.5. Intellectual Property Cases (Luszcz)
3.6. Appeals (Bottka)
3.7. Plea of Illegality (Luszcz)
3.8. Preliminary Rulings on Validity of EU Measures (Geulette)
3.9. Opinions on International Agreements to be Concluded by the EU (Bottka)
Part 4. Procedure before the EU Courts
4.1. Common Rules on Procedure (Luszcz)
4.2. Procedure in Direct Actions (Luszcz)
4.3. Procedure in Intellectual Property Cases (Luszcz)
4.4. Procedure in Appeals (Bottka)
4.5. Procedure in Preliminary Rulings (Geulette)
4.6. Procedure in Opinions on International Agreements to be Concluded by the EU (Bottka)
Part 5. Incidental and Ancillary Procedural Issues
5.1. Evidence and Confidential Information (Luszcz)
5.2. Interim Measures (Terrien)
5.3. Expedition (Terrien)
5.4. Interventions (Luszcz)
5.5. Joinder of Cases (Bottka)
5.6. Stay of Proceedings (Bottka)
5.7. Inadmissibility and No Need to Adjudicate (Bottka)
5.8. Discontinuance, Withdrawal, Settlement (Bottka)
5.9. Judgment by Default (Bottka)
5.10. Costs and Legal Aid (Farley)
5.11. Applications Relating to Judgments and Orders (Bottka)
5.12. Requirements as to Enforcement (Bottka)
Index

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EUROPEAN COURT PROCEDURE The General Court’s Rules of Procedure of 2015, as well as the re-establishment of a two-tier EU judiciary in 2016, are the last bricks in the post-Lisbon legal structure governing litigation before the EU Courts. This work covers the already sizeable case-law developed since the completion of these reforms and explains their effect on the Courts’ practice. Written by référendaires of the EU Courts and lawyers of the European Commission with a combined e xperience of 70 years, it gives a detailed and practice-oriented overview of the whole spectrum of litigation procedure before the EU judiciary. It also presents the entire system of judicial avenues that enables litigants to enforce their rights under EU law against European institutions, Member States or private parties. European Court Procedure is thus a comprehensive reference tool for practising lawyers, helping them to present their cases effectively while offering valuable guidance to national judges dealing with cases relating to points of EU law. Built around a structure that facilitates its use as a teaching material, the book provides valuable insights into the reasoning process of the EU Courts.

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European Court Procedure A Practical Guide

Viktor Luszcz

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2020 Copyright © Viktor Luszcz, 2020 Viktor Luszcz has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2020. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Luszcz, Viktor, author. Title: European court procedure : a practical guide / Viktor Luszcz. Description: Oxford, UK ; New York, NY : Hart Publishing, an imprint of Bloomsbury Publishing, 2020. | Includes bibliographical references and index. Identifiers: LCCN 2020026635 (print) | LCCN 2020026636 (ebook) | ISBN 9781841130538 (hardback) | ISBN 9781509900916 (ePDF) | ISBN 9781782252658 (Epub) Subjects: LCSH: Courts—European Union countries. | Law—European Union countries. | Justice, Administration of—European Union countries. | International and municipal law—European Union countries. Classification: LCC KJE3666 .L87 2020 (print) | LCC KJE3666 (ebook) | DDC 341.242/228—dc23 LC record available at https://lccn.loc.gov/2020026635 LC ebook record available at https://lccn.loc.gov/2020026636 ISBN: HB: 978-1-84113-053-8 ePDF: 978-1-50990-091-6 ePub: 978-1-78225-265-8 Typeset by Compuscript Ltd, Shannon

To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

FOREWORD What a long way the EU courts have come since their creation! The latest steps, consisting of the introduction of new rules of procedure for the Court of Justice (in 2012) and the General Court (in 2015) and the implementation of the reform of the judicial structure (beginning in 2016), are not the least significant of these. Indeed, they have allowed both a simplification of the jurisdictional architecture of the institution by the re-establishment of a two-tier judiciary system and an improvement in the public administration of justice by the development of procedural tools suited to the increasing demand of litigants for speed and efficiency, together with a strengthening of their safeguards. The fact is that the EU courts now play a greater role in ensuring the rights and freedoms that are at the very foundation of the European project. Thus, while they are traditionally, together with national courts, as ordinary courts, in charge of the application and uniform interpretation of EU law, reviewing the legality of acts adopted by the institutions, verifying compliance by Member States with their obligations and interpreting its provisions, they fulfil this task with greater resources and a wider range of powers. It is within this context that litigants have benefited from a better organisation of justice, which is, together with judicial independence, one of the requirements of effective judicial protection. One can highlight, among others, the developments in interim proceedings, e specially as regards public procurement procedures, the introduction of new conditions governing admissibility of actions and access to the courts, the promotion of the principle that decisions must be made within a reasonable period of time, as well as improvements in handling confidentiality and protecting personal data. In addition, the increasing role played by digital tools, for instance the e-curia application, which enables parties’ representatives to lodge procedural documents with the Registries by exclusively electronic means, provides opportunities to change the scope of judicial powers and obligations by promoting transparency and keeping better pace with changes in society. Nevertheless, these developments in the functioning of the courts, together with legal rules, would be insufficiently productive without the decisive contribution to the improvement in the quality of justice made by practitioners, litigants and citizens themselves. They are the ones who make use of the services provided by the courts and bring their competences and their role to life. It is therefore essential that they have in-depth knowledge of judicial remedies and opportunities to exercise their rights. Who could be better placed than the skilled members of judges’ chambers at the Court of Justice or the General Court and of the European Commission Legal Service to make a detailed and relevant analysis of these issues? This is the reason why the contribution made by this publication, which is the result of extensive work carried out by experienced professionals, is so valuable. Its authors have brought to it their knowledge and experience, with the objective of providing a reference guide for judges, practising lawyers or litigants and for everyone who wishes to understand how the EU courts work and how their procedures are applied. They have

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Foreword

conducted a near-unrivalled work of research, based on the raw material of EU procedures that is the case-law, by analysing thousands of decisions, with a particular focus on those adopted since the new structure governing litigation before the EU courts was adopted. More than just another new theoretical study, this book really is a practical and useful tool that I sincerely recommend. Marc van der Woude President of the General Court of the European Union

ABOUT THE AUTHORS Viktor Luszcz is an attorney at law, and partner at Danubia Legal – Luszcz Law Firm. He specialises in European and Hungarian competition and intellectual property law and is a Member of the Budapest Bar. Previously, he worked for eleven years as a legal secretary (référendaire) at the General Court of the EU (Luxembourg), where he dealt with several major intellectual property, competition, State aid and antidumping cases. For two years, he was the President of the Hungarian Intellectual Property Office. His past experience also includes working for the European Commission’s DG Competition (Brussels), where he handled antitrust and merger cases. Viktor holds Master’s degrees (LL.M) in EU Law from the College of Europe, Bruges, and the University of Rennes I (France). He regularly publishes on EU law and is the editor of courtprocedure.eu. Viktor speaks Hungarian, English, German, French and Polish. Alexandre Geulette has been a legal secretary (référendaire) at the Court of Justice of the EU (Luxembourg) since 2014. Prior to that, Alexandre worked for six years in the same capacity at the General Court of the EU (Luxembourg), where his practice focused on EU competition law. Before joining the Court of Justice, he was a member of the Brussels bar and practiced EU and Belgian competition law as well as Belgian business law at a leading independent law firm based in Brussels. Alexandre graduated in law from Saint-Louis University (Belgium) and the Catholic University of Louvain (Belgium) and holds a Master’s degree (LL.M) from Cambridge University (UK). He regularly publishes on various aspects of EU law. Alexandre speaks French, English and Dutch. Viktor Bottka has been a member of the European Commission Legal Service (Brussels) for the past 15 years. He has represented the European Commission in numerous cases before the EU Courts and national courts, in particular in State aid, financial services and antitrust matters. Previously, he worked in private practice and for the European Commission’s DG Competition. He also regularly publishes and speaks on EU competition law matters. Viktor holds Hungarian university degrees in law and economics and a Master’s degree (LL.M) in EU Law from the College of Europe, Bruges. He speaks Hungarian, English, French, German, Bulgarian and Swedish. Martin Farley is a member of the European Commission Legal Service (Brussels), specialising in European competition law and merger control. He is a qualified solicitor in England and Wales, as well as Ireland. Martin is a Fellow of the Centre of European Law of King’s College London, and part of the editorial team of the Journal of European Competition Law and Practice. Previously, he worked for six years at an international law firm, during which time he specialised in competition law, merger control, State aid law and public procurement. Martin graduated from the College of Europe, Bruges, and King’s College London (UK). He speaks English, French and German. Milan Kristof has been a legal secretary (référendaire) at the Court of Justice of the EU (Luxembourg) since 2006, where he has dealt with many major competition law, merger, State aid, intellectual property, regulatory, internet, trade and international law cases. Prior to that, Milan

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About the Authors

worked for the European Commission’s DG Competition (Brussels) and at Willkie Farr & Gallagher (Brussels). He is a contributor to Bellamy & Child: EU Law of Competition and to Oxford Competition Law, and speaks regularly on EU law, intellectual property and competition law (New York, Washington DC, Chicago, London, etc.). Since 2009 he gives annual courses and workshops at the École nationale de la magistrature in Bordeaux and at the Instituto de estudios bursatiles in Madrid. Milan has also given training to national judges e.g. in Belgium, Germany, Bulgaria and Serbia. He studied law and economics at the Universities of Bratislava and Košice (Slovakia) and the Erasmus Universiteit Rotterdam (the Netherlands). Milan speaks English, German, French, Slovak, Spanish and Dutch. Vivien Terrien is a legal secretary (référendaire) at the General Court of the EU (Luxembourg) and was part of the President’s chambers for ten years. Before joining the General Court in 2009, Vivien practiced as a competition lawyer in Paris at Linklaters and later in Brussels at WilmerHale. He has also acted as International Competition Network (ICN) representative for the Competition Council of Luxembourg since 2019. In addition to writing articles on EU litigation, antitrust and institutional law topics and lecturing at the Paris II Panthéon Assas, Lorraine Universities and Catholic University of Paris, Vivien regularly intervenes as a speaker on EU and competition law matters in international fora and before various national authorities. He has organised and participated in several workshops and training sessions for national judges. Vivien is a qualified attorney-at-law at the Paris and New York bars. Vivien holds law degrees from Harvard Law School, the College of Europe, Bruges, and the Universities of Paris II Panthéon Assas and Nantes. Vivien speaks English and French.

ABBREVIATIONS INTERNATIONAL ORGANISATIONS AND THEIR CONTRACTING STATES EU, Union – The European Union EEA – European Economic Area EFTA – European Free Trade Association Member State – Member State of the EU EEA EFTA States – EFTA Member States that are parties to the EEA Agreement WTO – World Trade Organization INSTITUTIONS, BODIES, OFFICES, AGENCIES OF THE EU EU institution – Institution of the European Union listed in Article 13(1) TEU Institution or body – EU institution, body, office, or agency, within the meaning of Articles 263(1) and 265(1) TFEU Court of Justice of the European Union – Institution of the EU, consisting of the Court of Justice and the General Court Court of Justice – the upper-tier EU Court General Court – the lower-tier EU Court, named Court of First Instance prior to 1 December 2009 EU Courts, Courts, Court – The Court of Justice and/or the General Court Commission – The European Commission, institution of the EU Council – The Council of the EU, institution of the EU ECB – The European Central Bank, institution of the EU Parliament – The European Parliament, institution of the EU CPVO – The Community Plant Variety Office ECHA – The European Chemicals Agency EUIPO – The European Union Intellectual Property Office OHIM – Office for Harmonisation in the Internal Market, predecessor of the European Union Intellectual Property Office

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Abbreviations

SOURCES OF LAW TEU – Treaty on European Union TFEU – Treaty on the Functioning of the European Union Euratom Treaty – Treaty establishing the European Atomic Energy Community Treaties – The TEU, TFEU, and Euratom Treaties Charter of Fundamental Rights – Charter of Fundamental Rights of the European Union ECHR – European Convention on Human Rights, signed at Rome on 4 November 1950 Statute – The Statute of the Court of Justice of the European Union, Protocol (No 3) annexed to the Treaties, last amended by Regulation (EU, Euratom) 2019/629 of the European Parliament and of the Council of 17 April 2019 amending the Statute (OJ 2019 L 111, p. 1) CJ RoP – Rules of Procedure of the Court of Justice of 25 September 2012 (OJ 2012 L 265, p. 1), last amended on 6 December 2019 (OJ 2019 L 316, p. 103) GC RoP – Rules of Procedure of the General Court of 4 March 2015 (OJ 2015 L 105, p. 1), last amended on 11 July 2018 (OJ 2018 L 240, p. 68) Rules of Procedure – The CJ RoP and the GC RoP taken together, unless specified otherwise CJ PD – Practice directions to parties concerning cases brought before the Court [of Justice] of 10 December 2019 (OJ 2020 L 42, p. 1) GC PR – Practice rules for the implementation of the Rules of Procedure of the General Court of 20 May 2015 (OJ 2015 L 152, p. 1), last amended on 17 October 2018 (OJ 2018 L 294, p. 23) CJ e-Curia decision – Decision of the Court of Justice of 16 October 2018 on the lodging and service of procedural documents by means of e-Curia (OJ 2018 L 293, p. 36) GC e-Curia decision – Decision of the General Court of 11 July 2018 on the lodging and service of procedural documents by means of e-Curia (OJ 2018 L 240, p. 72)

Law stated as it stands on 1 September 2020 Updates available at: www.courtprocedure.eu

OUTLINE CONTENTS Foreword�� v About the Authors�� vii Abbreviations�� ix Detailed Contents�� xiii Table of Treaties, Conventions and EU Legislation�� xxix Part 1. Enforcement of EU Law and Judicial Organisation of the EU�� 1 1.1. Introduction – Enforcement of EU Law and Judicial Avenues (Luszcz)�� 3 1.2. The Court of Justice of the European Union (Luszcz)�� 8 Part 2. Enforcement of EU Law against Member States and Private Parties�� 27 2.1. Infringement Actions (Kristof)�� 29 2.2. Preliminary Rulings on Interpretation (Geulette)�� 52 Part 3. Protection against Acts of the EU�� 107 3.1. Action for Annulment (Luszcz)�� 109 3.2. Action for Failure to Act (Bottka)�� 246 3.3. Action for Damages (Farley)�� 265 3.4. Staff Cases (Bottka)�� 289 3.5. Intellectual Property Cases (Luszcz)�� 305 3.6. Appeals (Bottka)�� 326 3.7. Plea of Illegality (Luszcz)�� 347 3.8. Preliminary Rulings on Validity of EU Measures (Geulette)�� 363 3.9. Opinions on International Agreements to be Concluded by the EU (Bottka)�� 376 Part 4. Procedure before the EU Courts�� 385 4.1. Common Rules on Procedure (Luszcz)�� 387 4.2. Procedure in Direct Actions (Luszcz)�� 418 4.3. Procedure in Intellectual Property Cases (Luszcz)�� 498 4.4. Procedure in Appeals (Bottka)�� 507 4.5. Procedure in Preliminary Rulings (Geulette)�� 523 4.6. Procedure in Opinions on International Agreements to be Concluded by the EU (Bottka)�� 537 Part 5. Incidental and Ancillary Procedural Issues�� 541 5.1. Evidence and Confidential Information (Luszcz)�� 543 5.2. Interim Measures (Terrien)�� 571 5.3. Expedition (Terrien)�� 609 5.4. Interventions (Luszcz)�� 625

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Outline Contents 5.5. 5.6. 5.7. 5.8. 5.9. 5.10. 5.11. 5.12.

Joinder of Cases (Bottka)�� 652 Stay of Proceedings (Bottka)�� 655 Inadmissibility and No Need to Adjudicate (Bottka)�� 658 Discontinuance, Withdrawal, Settlement (Bottka)�� 667 Judgment by Default (Bottka)�� 669 Costs and Legal Aid (Farley)�� 671 Applications Relating to Judgments and Orders (Bottka)�� 700 Requirements as to Enforcement (Bottka)�� 703

Index�� 705

DETAILED CONTENTS Foreword�� v About the Authors�� vii Abbreviations�� ix Outline Contents�� xi Table of Treaties, Conventions and EU Legislation�� xxix Part 1. Enforcement of EU Law and Judicial Organisation of the EU�� 1 1.1. Introduction – Enforcement of EU Law and Judicial Avenues (Luszcz)�� 3 1.1.1. Overview – Structure of the Book�� 3 1.1.2. Core Principles – How to Assert Rights Derived from Union Law?�� 4 1.1.2.1. Where EU Law is Breached by a Member State or a Private Party�� 4 1.1.2.2. Where Union Law is Breached by an EU Institution or Body�� 6 1.2. The Court of Justice of the European Union (Luszcz)�� 8 1.2.1. The Institution and its Powers�� 8 1.2.1.1. Status and History�� 8 1.2.1.2. The Reform of the General Court and the Absorption of the Civil Service Tribunal�� 9 1.2.1.3. Division of Competences between the EU Courts�� 10 1.2.2. Structure of the Court of Justice of the European Union�� 15 1.2.2.1. The Court of Justice�� 15 (i) Composition�� 15 (ii) Structure and Organisation�� 17 1.2.2.2. The General Court�� 22 (i) Composition�� 22 (ii) Structure and Organisation�� 23 Part 2. Enforcement of EU Law against Member States and Private Parties�� 27 2.1. Infringement Actions (Kristof)�� 29 2.1.1. Overview�� 29 2.1.2. Defendants�� 31 2.1.3. Applicants�� 34 2.1.4. The Subject Matter of Infringement Proceedings�� 35 2.1.4.1. What was Infringed?�� 35 2.1.4.2. Failure�� 37 2.1.4.3. Defences Invoked by Member States and the Court’s Receptiveness to them�� 39 2.1.5. Pre-litigation Phase�� 40 2.1.5.1. Difference between Proceedings Initiated by the Commission and those Initiated by a Member State�� 41

xiv Detailed Contents 2.1.5.2. Administrative Stage�� 41 (i) Letter of Formal Notice�� 41 (ii) Reasoned Opinion�� 42 2.1.6. Time Limits�� 43 2.1.7. Litigation Phase�� 44 2.1.7.1. Formal and Substantive Requirements as to the Application�� 44 2.1.7.2. Connection with the Pre-litigation Phase�� 44 2.1.7.3. Evidence�� 46 2.1.8. Result of the Proceedings�� 47 2.1.8.1. Legal Force of the Judgment Declaring the Infringement�� 47 2.1.8.2. Limitation of Temporal Effects�� 47 2.1.8.3. State Liability�� 48 2.1.9. Sanctions�� 48 2.1.9.1. Article 260(2) TFEU�� 48 2.1.9.2. Article 260(3) TFEU�� 49 2.1.9.3. Decision to Impose a Lump Sum and a Penalty Payment (When ‘Or’ Means ‘And’)�� 50 2.2. Preliminary Rulings on Interpretation (Geulette)�� 52 2.2.1. Overview�� 52 2.2.2. Decision to Request a Preliminary Ruling�� 57 2.2.2.1. Discretion of the National Court to Refer�� 57 2.2.2.2. Obligation of Courts of Last Instance to Refer�� 61 2.2.2.3. Exceptions to the Duty to Refer�� 63 2.2.2.4. Consequences for not Complying with an Obligation to Refer�� 66 2.2.3. Jurisdiction of the Court of Justice – Subject Matter of the Question Referred�� 67 2.2.3.1. Interpretation of the Treaties�� 67 2.2.3.2. Interpretation of the Acts of Institutions, Bodies, Offices or Agencies of the Union�� 68 2.2.3.3. Acts not Falling within the Interpretative Jurisdiction of the Court of Justice�� 71 2.2.4. Admissibility of the Reference�� 75 2.2.4.1. Admissibility of the Reference – Features of the Referring Body�� 75 (i) The Notion of ‘Court or Tribunal’ for the Purposes of Article 267 TFEU�� 75 (ii) The Notion of Court or Tribunal ‘of a Member State’ for the Purposes of Article 267 TFEU�� 83 2.2.4.2. Admissibility of the Reference – Proceedings before the Referring Body�� 85 (i) A Question of Interpretation of EU Law must be Raised before the Referring Court�� 85 (ii) The Preliminary Ruling must be Necessary to Give Judgment�� 87 (iii) Purely Internal Situations�� 90 (iv) Inapplicability of EU Law Rationae Temporis �� 93 (v) Contrived Disputes�� 94 2.2.4.3. Admissibility of the Reference – Issues Related to the Form of the Order for Reference�� 96

Detailed Contents xv 2.2.5. The Preliminary Ruling and its Effects�� 99 2.2.5.1. Formulation and Reformulation of the Questions Referred�� 99 2.2.5.2. Effect – Binding Nature�� 101 2.2.5.3. Effect – Retroactive Effect�� 102 Part 3. Protection against Acts of the EU�� 107 3.1. Action for Annulment (Luszcz)�� 109 3.1.1. Overview�� 109 3.1.2. Reviewable Acts�� 110 3.1.2.1. Binding Act�� 112 (i) Notion of the Binding Act�� 112 (ii) Legitimate Legal Basis�� 112 (iii) Legal Effect�� 113 (iv) Substance Rather than Form is Examined�� 117 (v) Preparatory, Preliminary, Intermediary Acts�� 122 (vi) Confirmatory Acts�� 125 3.1.2.2. Illustrations – Reviewable and Non-reviewable Acts�� 127 (i) Informative or Interpretative Acts�� 127 (ii) Declaration of Intent�� 128 (iii) Internal Rules, Instructions and Guidelines�� 128 (iv) Refusal to Initiate Infringement Proceedings against Member States under Article 258 TFEU�� 129 (v) Decision to Initiate Court Proceedings�� 130 (vi) Decision to Conclude an International Agreement�� 130 (vii) OLAF Reports�� 130 3.1.2.3. Alternative Judicial Remedies against Acts not Amenable to Review�� 131 3.1.2.4. Existent Act�� 131 (i) Non-existent Acts�� 131 (ii) Withdrawn Acts and Replaced Acts�� 133 (iii) Expired Acts�� 134 3.1.3. Defendants�� 134 3.1.3.1. EU Institutions, Bodies, Offices and Agencies�� 134 3.1.3.2. Act Imputable to the Institution or Body�� 138 3.1.3.3. Member States as Defendants?�� 139 3.1.4. Applicants and Standing�� 140 3.1.4.1. Member States, Parliament, Council, Commission�� 140 3.1.4.2. Court of Auditors, ECB, Committee of the Regions�� 142 3.1.4.3. Individual Applicants – General Conditions of Admissibility Related to the Applicant�� 144 (i) Capacity to Bring Proceedings – Legal Personality�� 144 (ii) Legal Interest in Bringing Proceedings�� 145 3.1.4.4. Individual Applicants – Overview of Standing�� 154 3.1.4.5. Individual Applicants Challenging Acts Addressed to them – The First Variant�� 155

xvi

Detailed Contents 3.1.4.6. Individual Applicants Challenging Acts not Addressed to them which are of Direct and Individual Concern – The Second Variant�� 156 (i) General�� 156 (ii) Direct Concern�� 157 (iii) Individual Concern�� 165 3.1.4.7. Individual Applicants Challenging Regulatory Acts not Entailing Implementing Measures – The Third Variant�� 175 (i) General�� 175 (ii) Regulatory Acts�� 177 (iii) Not Entailing Implementing Measures�� 183 (iv) Direct Concern and ‘Not Entailing Implementing Measures’�� 187 3.1.4.8. The Standing of Associations�� 188 (i) Standing Derived from that of Members�� 189 (ii) Association’s Standing Based on an Interest of its Own�� 190 3.1.4.9. The Standing of Trade Unions and Consortia�� 191 3.1.4.10. Partial Interest to Act, Partial Standing, Partial Annulment�� 192 3.1.4.11. Alternative Judicial Remedies in the Case of Lack of Standing�� 194 3.1.5. Formal Requirements�� 195 3.1.6. Time Limits�� 195 3.1.6.1. Overview�� 195 3.1.6.2. Publication�� 196 3.1.6.3. Notification�� 199 3.1.6.4. Becoming Aware of the Contested Act�� 200 3.1.6.5. Particular Situations�� 201 3.1.6.6. Not Bringing an Action for Annulment in Good Time Precludes the Use of Other Judicial Avenues�� 201 3.1.7. Grounds for Review�� 202 3.1.7.1. General�� 202 3.1.7.2. Lack of Competence�� 203 (i) Where the EU Lacks Competence�� 204 (ii) Institution Arrogating the Power of Another Institution�� 205 3.1.7.3. Infringement of an Essential Procedural Requirement�� 207 (i) General Rules�� 207 (ii) Insufficient Reasoning�� 208 (iii) Rights of the Defence�� 213 (iv) Other Essential Procedural Requirements�� 215 3.1.7.4. Infringement of EU Law�� 216 (i) The Treaties and the Charter of Fundamental Rights�� 217 (ii) General Principles of EU Law�� 217 (iii) International Agreements�� 221 (iv) Secondary Legislation�� 224 (v) Guidelines and Notices�� 225 (vi) Administrative Practice�� 226 (vii) Reference to Judgments Handed Down after the Adoption of the Contested Decision�� 226 (viii) Errors of Fact or Assessment�� 226 (ix) National Law�� 227

Detailed Contents xvii 3.1.7.5. Misuse of Powers�� 227 3.1.7.6. Scope of the Review�� 229 (i) Main Principles�� 229 (ii) The Role of Pleadings in the Review�� 230 (iii) Full Review and Marginal Review�� 231 (iv) Antitrust: Review of Legality and Full Jurisdiction�� 234 (v) Does the Illegality Justify Annulment?�� 236 3.1.7.7. Severability and Partial Annulment�� 237 3.1.8. Consequences of Annulment�� 237 3.1.8.1. Temporal Aspects�� 238 3.1.8.2. Erga Omnes Effect, but the Act is Often Annulled Only in Respect of the Successful Applicant�� 239 3.1.8.3. Duties of the Institution or Body�� 240 3.1.8.4. Res Judicata�� 244 3.2. Action for Failure to Act (Bottka)�� 246 3.2.1. Overview�� 246 3.2.2. Pre-litigation Phase – Invitation to Act�� 248 3.2.3. Time Limit to Bring the Court Action�� 250 3.2.4. Failure to Act�� 251 3.2.4.1. Duty to Act�� 251 3.2.4.2. Definition of a Position�� 253 3.2.4.3. Link with Legal Effects�� 255 3.2.4.4. Practice�� 257 3.2.5. Defendants�� 258 3.2.6. Applicants and Standing�� 259 3.2.6.1. Privileged Applicants�� 259 3.2.6.2. Non-privileged Applicants�� 260 3.2.7. Formal Requirements and Procedural Aspects�� 262 3.2.8. Grounds for Review�� 262 3.2.9. Result of the Proceedings�� 263 3.3. Action for Damages (Farley)�� 265 3.3.1. Overview�� 265 3.3.2. The Non-contractual Liability of the EU�� 266 3.3.2.1. Action for Damages only Concerns Non-contractual Liability�� 266 (i) Contractual Liability of the EU�� 267 (ii) Non-contractual Liability of the EU�� 268 3.3.2.2. Concurrent Liability where EU Acts are Implemented by National Authorities�� 268 3.3.2.3. Actions for Damages are an Independent Form of Action�� 270 3.3.3. Defendants�� 271 3.3.4. Applicants�� 272 3.3.5. Formal Requirements�� 273 3.3.6. Limitation Period�� 273 3.3.7. Substantive Requirements for Liability�� 274 3.3.7.1. Unlawful Act or Conduct�� 275 (i) General�� 275 (ii) Breach of a Rule of Union Law�� 276 (iii) Rules Conferring Rights on Individuals�� 276

xviii

Detailed Contents (iv) Sufficiently Serious Breach – Notion�� 278 (v) Sufficiently Serious Breach – Manifest and Grave Disregard for the Limits of Discretion�� 278 (vi) Sufficiently Serious Breach – Other Elements Affecting the Seriousness of the Breach�� 280 (vii) Liability for Lawful Acts?�� 282 (viii) The Justification for High Thresholds to the Award of Damages�� 283 3.3.7.2. Causation�� 284 3.3.7.3. Existence of Damage�� 285 3.3.8. Compensation for Damage�� 287 3.3.8.1. General�� 287 3.3.8.2. Quantifying the Damage�� 287 3.4. Staff Cases (Bottka)�� 289 3.4.1. Overview�� 289 3.4.2. Legal Basis for Bringing Actions�� 290 3.4.3. Parties�� 292 3.4.4. Pre-litigation Phase�� 294 3.4.5. Time Limits and Formal Requirements�� 296 3.4.6. Subject Matter of Staff Litigation�� 297 3.4.6.1. General�� 297 3.4.6.2. Claim for Annulment�� 297 (i) Act with Adverse Effect�� 298 (ii) Adversely Affecting the Applicant�� 299 (iii) Grounds for Review�� 301 3.4.6.3. Claim for Damages�� 301 3.4.7. The Rule of Correspondence�� 302 3.4.8. Result of the Proceedings�� 303 3.4.8.1. Claim for Annulment�� 303 3.4.8.2. Claim for Damages�� 304 3.5. Intellectual Property Cases (Luszcz)�� 305 3.5.1. Overview�� 305 3.5.2. Legal Basis for Bringing Actions�� 308 3.5.3. Parties�� 309 3.5.3.1. The Defendant Offices�� 309 3.5.3.2. Applicants�� 310 3.5.3.3. The Other Party to the Proceedings before the Board of Appeal�� 311 3.5.4. Pre-litigation Phase�� 313 3.5.5. Time Limits and Formal Requirements�� 315 3.5.6. Subject Matter of Intellectual Property Litigation�� 316 3.5.6.1. Annulment or Alteration of the Contested Decision�� 316 3.5.6.2. Inadmissible Heads of Claim�� 317 3.5.6.3. Costs�� 318 3.5.6.4. Cross-claims�� 318 3.5.7. Connection with the Pre-litigation Phase�� 319 3.5.8. Grounds for Review�� 320 3.5.8.1. The Scope of Review�� 320 3.5.8.2. The Alteration Power�� 321 3.5.9. Result of the Proceedings�� 324

Detailed Contents xix 3.6. Appeals (Bottka)�� 326 3.6.1. Overview�� 326 3.6.2. Appealable Decisions�� 329 3.6.3. Parties�� 332 3.6.3.1. Appellants�� 332 (i) Categories of Appellants�� 332 (ii) Conditions of Admissibility for Non-Privileged Appellants�� 334 3.6.3.2. Respondents�� 335 3.6.3.3. Interveners�� 336 3.6.4. Formal Requirements and Procedural Aspects�� 336 3.6.5. Time Limits�� 337 3.6.6. Grounds for Review�� 337 3.6.6.1. General�� 337 3.6.6.2. Identifying an Error of Law�� 338 3.6.6.3. Fact-Related Issues�� 341 (i) General�� 341 (ii) Distortion of Evidence�� 342 3.6.7. Result of the Proceedings�� 344 3.6.8. Cross-Appeals�� 345 3.7. Plea of Illegality (Luszcz)�� 347 3.7.1. Overview�� 347 3.7.2. Acts against Which a Plea of Illegality can be Raised�� 349 3.7.2.1. Acts of General Application�� 349 3.7.2.2. Link with the Subject Matter of the Case�� 350 3.7.3. Parties�� 352 3.7.3.1. Natural or Legal Persons�� 352 3.7.3.2. Member States�� 354 3.7.3.3. EU Institutions�� 355 3.7.4. Formal Requirements�� 356 3.7.5. No Time Limit�� 358 3.7.6. Grounds for Review�� 359 3.7.7. Effects of Inapplicability�� 361 3.8. Preliminary Rulings on Validity of EU Measures (Geulette)�� 363 3.8.1. Overview�� 363 3.8.2. Decision to Request a Preliminary Ruling on Validity�� 364 3.8.3. Subject Matter of the Question Referred�� 366 3.8.4. Assessment of Validity�� 367 3.8.5. Relationship with Article 263 TFEU�� 369 3.8.6. Consequences of the Ruling�� 372 3.8.6.1. Effects for National Authorities and Courts�� 372 3.8.6.2. Effects for EU Institutions and Bodies�� 374 3.9. Opinions on International Agreements to be Concluded by the EU (Bottka)�� 376 3.9.1. Overview�� 376 3.9.2. Parties�� 379 3.9.3. Subject Matter of the Opinion Proceedings�� 379 3.9.4. Time Limits and Formal Requirements�� 380 3.9.5. Assessment of Compatibility�� 381 3.9.6. Consequences of the Opinion�� 382

xx

Detailed Contents

Part 4. Procedure before the EU Courts�� 385 4.1. Common Rules on Procedure (Luszcz)�� 387 4.1.1. Overview�� 387 4.1.2. The Rules Governing Procedure�� 387 4.1.2.1. The Statute�� 388 4.1.2.2. The Rules of Procedure of the Court of Justice�� 388 4.1.2.3. The Rules of Procedure of the General Court of 2015�� 389 4.1.2.4. The Practice Directions and the Practice Rules�� 391 4.1.2.5. The e-Curia Decisions�� 392 4.1.3. Types of Proceedings�� 392 4.1.4. Language of the Case�� 396 4.1.4.1. Determining the Language of the Case�� 396 4.1.4.2. Use of the Language of the Case in the Proceedings�� 398 4.1.4.3. Exceptions and Derogations from the Exclusive Use of the Language of the Case�� 400 (i) States�� 400 (ii) Requests for the Authorisation to Use Another Language�� 400 4.1.5. Representation of the Parties�� 401 4.1.5.1. The Obligation to be Represented�� 401 (i) Direct Actions�� 401 (ii) Preliminary Rulings�� 404 4.1.5.2. Rights and Obligations of Representatives�� 404 4.1.6. Lodging, Service and Removal of Procedural Documents�� 405 4.1.6.1. Lodging Documents�� 405 (i) e-Curia�� 406 (ii) Lodging Documents with the Court of Justice by Post or in Person�� 406 4.1.6.2. Service of Documents�� 408 (i) e-Curia�� 408 (ii) Post, Fax, Personal Delivery�� 408 4.1.6.3. Removal from the File�� 408 4.1.7. Time Limits�� 409 4.1.7.1. Types of Time Limits�� 409 4.1.7.2. Calculation of Time Limits�� 410 (i) Step One: Starting Day�� 411 (ii) Step Two: Duration of the Period�� 412 (iii) Step Three: Extension on Account of Distance�� 412 (iv) Step Four: The Day on Which the Time Limit Expires�� 412 (v) Step Five: In the Case of Forward Copies, the Original has to Arrive at the Registry within 10 Days�� 413 4.1.7.3. Requesting the Extension of Time Limits�� 414 4.1.7.4. Documents Filed Out of Time�� 414 4.1.7.5. Justifications – Unforeseeable Circumstances and Force Majeure�� 414 4.1.7.6. Procedure Regarding Actions Filed Out of Time�� 416 4.2. Procedure in Direct Actions (Luszcz)�� 418 4.2.1. Overview�� 418

Detailed Contents xxi 4.2.2. Application�� 420 4.2.2.1. Formal Requirements�� 420 (i) Identification of the Applicant�� 421 (ii) Identification of the Defendant�� 422 (iii) Identification of the Subject Matter of the Case, Forms of Order Sought�� 424 (iv) Pleas in Law and Summary of the Pleas in Law�� 425 (v) Information Relating to Service�� 426 (vi) Length of the Application�� 426 (vii) Mandatory Annexes�� 427 (viii) Other Formal Requirements�� 428 4.2.2.2. Clear and Precise Definition of the Subject Matter of the Application�� 428 (i) Infringement Actions�� 428 (ii) Where Annulment is Sought�� 429 (iii) Where Compensation of Damages is Sought�� 429 (iv) Actions for Failure to Act�� 431 4.2.2.3. Forms of Order Sought (Heads of Claim)�� 431 (i) Notion and Types of Forms of Order Sought�� 431 (ii) The Forms of Order Sought must be Clear and Precise�� 435 (iii) No New Head of Claim After the Application�� 435 (iv) Adaptation of the Application When the Contested Act was Replaced or Amended�� 436 (v) Request to Annul the Contested Act in Part or Only in Respect of the Applicant�� 438 (vi) Inadmissible Forms of Order Sought�� 439 (vii) Costs�� 439 4.2.2.4. Pleas in Law and Arguments�� 440 (i) General�� 440 (ii) The Pleas in Law must be Clear and Precise�� 442 (iii) How to Construct Pleas in Law?�� 443 4.2.2.5. Submitting, Offering, Requesting Evidence�� 448 4.2.2.6. Actions by the EU Courts after Receiving the Application�� 449 (i) Examination of the Application by the Registry�� 449 (ii) Service of the Application on the Defendant�� 449 (iii) Publishing the Notice of the Application in the Official Journal�� 449 (iv) Designation of the Judge-Rapporteur�� 449 4.2.3. Defence�� 450 4.2.3.1. Formal Requirements�� 450 4.2.3.2. Substantive Requirements�� 452 4.2.3.3. Forms of Order Sought�� 452 4.2.3.4. Pleas in Law and Arguments�� 453 4.2.3.5. Actions by the EU Courts after Receiving the Defence�� 454 4.2.4. Reply�� 454 4.2.4.1. General�� 454

xxii Detailed Contents 4.2.4.2. New Pleas in Law in the Reply or Later�� 456 (i) New Matters of Fact�� 457 (ii) New Matters of Law�� 458 (iii) Expounding Pleas in Law or Expressing them in Different Terms�� 458 (iv) New Pleas May be Raised if they are a Matter of Public Policy�� 460 4.2.4.3. New Evidence in the Reply or Later�� 461 4.2.4.4. Actions by the EU Courts after Receiving the Reply�� 463 4.2.5. Rejoinder�� 463 4.2.5.1. General�� 463 4.2.5.2. New Pleas in Law and New Evidence in the Rejoinder�� 463 4.2.5.3. Actions Taken by the EU Courts upon Receiving the Rejoinder�� 464 4.2.6. Preliminary Report�� 464 4.2.6.1. Timing�� 465 4.2.6.2. Content�� 465 4.2.6.3. The Report for the Hearing�� 466 4.2.6.4. Actions by the EU Courts�� 467 4.2.7. Measures of Organisation of Procedure and of Inquiry�� 467 4.2.7.1. Common Rules�� 467 4.2.7.2. Measures of Organisation of Procedure�� 470 4.2.7.3. Measures of Inquiry�� 472 (i) Personal Appearance of the Parties�� 473 (ii) Request for Information or Materials�� 473 (iii) Request for Documents to Which Access has been Denied by an Institution�� 476 (iv) Oral Testimony by Witnesses�� 477 (v) Expert’s Report�� 477 4.2.7.4. Handling Incidents that May Occur at the Stage of Responses to Written Questions and Requests for Materials�� 478 (i) Unsolicited Documents�� 478 (ii) New Pleas in Law�� 479 4.2.8. Hearing�� 479 4.2.8.1. Overview�� 479 4.2.8.2. Is There a Hearing?�� 481 (i) The Court of Justice�� 481 (ii) The General Court�� 482 4.2.8.3. Preparation for the Hearing�� 483 4.2.8.4. Course of the Hearing�� 484 (i) The Oral Argument (the Oral Pleading Proper)�� 486 (ii) Questions by the Court�� 488 (iii) Replies�� 489 4.2.8.5. Actions Taken by the EU Courts after the Hearing�� 489 (i) General�� 489 (ii) Minutes and Recording of the Hearing�� 490 (iii) Keeping the Oral Procedure Open after the Hearing�� 490 (iv) Reopening the Oral Part of the Procedure�� 491 4.2.9. Opinion of the Advocate General�� 492

Detailed Contents xxiii 4.2.10. Deliberations�� 493 4.2.11. Judgments and Orders Ending the Case�� 493 4.2.11.1. Judgment or Order?�� 493 (i) Judgments on the Substance of the Case�� 493 (ii) Final Orders of the General Court on the Substance of the Case�� 494 (iii) Final Orders without Decision on the Substance of the Case�� 495 (iv) Inadmissibility Stated in a Judgment�� 495 4.2.11.2. Closure of the Case�� 496 4.3. Procedure in Intellectual Property Cases (Luszcz)�� 498 4.3.1. Overview�� 498 4.3.2. General Rules�� 498 4.3.3. Written Part of the Procedure�� 500 4.3.3.1. Application�� 500 (i) Formal Requirements�� 500 (ii) Clear and Precise Definition of the Subject Matter of the Action�� 501 (iii) Service of the Application and Transfer of the Case File�� 502 4.3.3.2. Response�� 502 4.3.3.3. Cross-claims�� 504 4.3.3.4. Actions by the General Court�� 505 4.3.4. Oral Part of the Procedure�� 505 4.3.5. Closure of the Case�� 506 4.4. Procedure in Appeals (Bottka)�� 507 4.4.1. Overview�� 507 4.4.2. Considerations on Whether and How to Appeal�� 508 4.4.3. Written Part of the Procedure�� 511 4.4.3.1. The Appeal�� 511 (i) Formal Requirements�� 511 (ii) Clear and Precise Definition of the Subject Matter of the Appeal�� 513 (iii) Actions by the Court of Justice upon Receiving the Appeal�� 514 4.4.3.2. Response and Possible Cross-Appeal�� 515 4.4.3.3. Reply and Rejoinder�� 516 4.4.3.4. The Preliminary Report and the Assignment of the Case�� 517 4.4.3.5. Measures of Organisation of Procedure and of Inquiry�� 518 4.4.4. Oral Part of the Procedure�� 518 4.4.5. Closure of the Case�� 518 4.4.5.1. Closure of the Case by a Judgment�� 518 4.4.5.2. Closure of the Case by a Reasoned Order�� 519 (i) Final Orders on the Substance of the Case�� 519 (ii) Final Orders without Decision on the Substance of the Case�� 519 4.4.6. Procedure in Cases Referred Back to the General Court�� 520 4.5. Procedure in Preliminary Rulings (Geulette)�� 523 4.5.1. Overview�� 523 4.5.2. Lodging the Request for a Preliminary Ruling�� 524

xxiv

Detailed Contents 4.5.3. Registration, Translation and Service of the Order for Reference�� 526 4.5.4. Participation in Preliminary Ruling Proceedings�� 527 4.5.5. Written Part of the Procedure�� 529 4.5.5.1. Written Observations�� 529 4.5.5.2. The Preliminary Report�� 530 4.5.5.3. Measures of Organization of Procedure and Measures of Inquiry�� 530 4.5.6. Oral Part of the Procedure�� 531 4.5.7. Ruling of the Court of Justice�� 531 4.5.7.1. Closure of the Case by Judgment�� 531 4.5.7.2. Closure of the Case by Reasoned Order in a Simplified Procedure�� 532 4.5.8. Expedited Procedure, Urgent Procedure, Priority Treatment�� 532 4.5.8.1. Expedited Preliminary Ruling Procedure�� 532 4.5.8.2. Urgent Preliminary Ruling Procedure�� 535 4.5.8.3. Priority Treatment�� 536 4.6. Procedure in Opinions on International Agreements to be Concluded by the EU (Bottka)�� 537 4.6.1. Overview�� 537 4.6.2. General Rules�� 537 4.6.3. Written Part of the Procedure�� 538 4.6.4. Oral Part of the Procedure�� 539 4.6.5. The Opinion Delivered�� 539

Part 5. Incidental and Ancillary Procedural Issues�� 541 5.1. Evidence and Confidential Information (Luszcz)�� 543 5.1.1. Overview�� 543 5.1.2. Access to Documents Held by EU Institutions or Bodies�� 543 5.1.2.1. Access to Documents in the Administrative Procedure�� 544 (i) Rules Governing Particular Procedures�� 544 (ii) General Principles – THe Rights of the Defence and the Right to be Heard�� 545 5.1.2.2. Public Access to Documents under Regulation 1049/2001 or its Equivalents�� 547 (i) General�� 547 (ii) Main Features of Regulation 1049/2001�� 548 (iii) Regulation 1049/2001 and Litigation before the EU Courts�� 550 5.1.2.3. National Courts Requesting EU Documents�� 552 5.1.2.4. Obtaining Documents in the Procedure before the General Court�� 555 (i) Legal Basis�� 555 (ii) Applying for Access to Documents�� 556 (iii) Outcome of the Application for Access to Documents�� 561 5.1.3. Treatment of Confidential and Sensitive Evidence by the General Court�� 562 5.1.3.1. Treatment of Confidential Evidence under Article 103 of the GC RoP�� 564 5.1.3.2. Treatment of Sensitive Evidence under Article 105 of the GC RoP�� 566

Detailed Contents xxv 5.1.4. Anonymity and Confidential Treatment of Information vis-à-vis the Public�� 569 5.2. Interim Measures (Terrien)�� 571 5.2.1. Overview�� 571 5.2.2. The Parties to the Interim Relief Proceedings�� 573 5.2.2.1. Applicants�� 573 5.2.2.2. Defendants�� 574 5.2.2.3. Third Parties to the Main Proceedings�� 574 5.2.2.4. Interveners�� 575 5.2.3. Time Limits and Formal Requirements�� 576 5.2.4. Procedure�� 578 5.2.4.1. Competence�� 578 5.2.4.2. Ancillary Nature of the Interim Relief Procedure and Admissibility�� 578 5.2.4.3. Interim Measures Adopted Inaudita Altera Parte�� 580 5.2.4.4. Observations by the Parties�� 582 5.2.4.5. Standard of Proof�� 584 5.2.5. Substantive Requirements�� 585 5.2.5.1. Fumus Boni Juris�� 586 5.2.5.2. Urgency�� 590 (i) General Characteristics of the Damage�� 590 (ii) Serious Harm�� 591 (iii) Irreparable Harm�� 593 5.2.5.3. Balancing Interests�� 595 5.2.6. The Order Closing the Interim Proceedings�� 596 5.2.6.1. Main Features of the Order Closing the Interim Proceedings�� 596 5.2.6.2. Effect of a Closing Order Rejecting the Application for Interim Relief�� 597 5.2.6.3. Effect of a Closing Order Granting Interim Relief�� 598 5.2.6.4. Costs�� 600 5.2.7. Appeal�� 600 5.2.7.1. Appealing the Interim Relief Order�� 601 (i) Appealable Interim Measures Orders�� 601 (ii) Appeal against an Order of the General Court Closing the Interim Proceedings�� 601 5.2.7.2. Requesting Interim Measures within the Appeal Procedure�� 604 (i) General�� 604 (ii) Requesting Interim Relief in Appeals Where Interim Relief was Obtained at First Instance�� 605 (iii) Requesting Interim Relief in Appeals Where no Interim Relief was Sought or Obtained at First Instance�� 606 5.3. Expedition (Terrien)�� 609 5.3.1. Overview�� 609 5.3.2. Expedited Procedure�� 610 5.3.2.1. General�� 610 5.3.2.2. Formal Requirements and Procedural Aspects�� 611 (i) The Request for Expedited Procedure�� 611 (ii) Procedural Implications for the other Main Party�� 613

xxvi

Detailed Contents 5.3.2.3. Substantive Requirements as to Granting the Request for Expedited Procedure�� 614 (i) Court of Justice�� 614 (ii) General Court�� 617 5.3.2.4. The Decision on Expedited Procedure�� 617 (i) Competence to take the Decision�� 617 (ii) Expedited Procedure Applied by the EU Courts of their Own Motion�� 618 (iii) Reasoning�� 618 5.3.2.5. Effects of Expedited Procedure�� 618 5.3.3. Priority Treatment�� 621 5.4. Interventions (Luszcz)�� 625 5.4.1. Overview�� 625 5.4.2. Cases in Which Intervention is Possible�� 626 5.4.3. Who Can Intervene?�� 628 5.4.3.1. Privileged Interveners�� 628 5.4.3.2. Non-privileged Applicants to Intervene�� 628 (i) Legal personality not required�� 629 (ii) Direct and existing interest in the result of the case�� 629 (iii) Associations and Non-Governmental Organisations�� 632 5.4.3.3. Interveners in Intellectual Property Cases�� 634 5.4.3.4. Interveners at First Instance become Respondents in Appeals�� 634 5.4.4. Time Limits, Formal Requirements, Procedure�� 635 5.4.4.1. Time Limits�� 635 5.4.4.2. Content and Formal Requirements for Applications to Intervene�� 636 5.4.4.3. Procedure for Granting Leave to Intervene�� 637 5.4.5. Confidentiality Issues�� 637 5.4.5.1. Confidentiality Issues before the General Court�� 638 5.4.5.2. Confidentiality Issues before the Court of Justice�� 641 5.4.6. Rights of the Intervener�� 642 5.4.6.1. Procedural Rights: Receiving Procedural Documents, Submission of Statements�� 643 5.4.6.2. Cannot Alter or Distort the Framework of the Dispute�� 644 (i) Admissibility and No Need to Adjudicate�� 645 (ii) No New Pleas in Law and Limited Right to Raise Substantive Arguments�� 646 5.4.6.3. Restricted Right to Appeal�� 648 5.4.6.4. Extended Rights in Intellectual Property Cases�� 648 5.4.7. Costs in Interventions�� 649 5.4.7.1. Decision on Costs in the Order on Intervention�� 649 5.4.7.2. Intervener’s Withdrawal�� 649 5.4.7.3. Order on Costs in the Final Judgment or Order Closing the Case�� 649 (i) Allocation of Costs�� 649 (ii) Taxation of Costs�� 651

Detailed Contents xxvii 5.5. Joinder of Cases (Bottka)�� 652 5.6. Stay of Proceedings (Bottka)�� 655 5.7. Inadmissibility and No Need to Adjudicate (Bottka)�� 658 5.7.1. Inadmissibility�� 658 5.7.1.1. Inadmissibility of Direct Actions, Intellectual Property Cases, Appeals�� 658 (i) Inadmissibility Raised by the Courts of their Own Motion�� 659 (ii) Inadmissibility Raised by a Party�� 661 (iii) Typical Grounds for Finding Inadmissibility�� 662 5.7.1.2. Inadmissibility of Preliminary References�� 664 5.7.2. No Need to Adjudicate�� 664 5.8. Discontinuance, Withdrawal, Settlement (Bottka)�� 667 5.9. Judgment by Default (Bottka)�� 669 5.10. Costs and Legal Aid (Farley)�� 671 5.10.1. Overview�� 671 5.10.2. Cost of Court Proceedings�� 672 5.10.3. Allocation of Costs in Direct Actions and in Intellectual Property Cases�� 673 5.10.3.1. Allocation of Costs in Final Judgments or Orders Deciding the Merits of the Case�� 673 (i) General Rule: The Unsuccessful Party Pays�� 673 (ii) Exceptions�� 675 (iii) Unreasonable or Vexatious Litigation�� 676 (iv) Interventions�� 678 5.10.3.2. Allocation of Costs in Orders Not Deciding the Merits of the Case�� 679 (i) Inadmissibility of the Action�� 679 (ii) No Need to Adjudicate�� 680 (iii) Discontinuance and Withdrawal�� 681 (iv) Amicable Settlement�� 682 (v) Interim Measures�� 682 (vi) Applications to Intervene�� 683 5.10.4. Allocation of Costs in Appeals�� 684 5.10.5. Disputes Concerning the Costs to Be Recovered�� 685 5.10.5.1. Procedure�� 686 (i) Time Limits�� 686 (ii) Structure of Proceedings�� 687 5.10.5.2. Additional Costs for the Taxation Procedure and Interest�� 688 5.10.6. Recoverable Costs�� 689 5.10.6.1. Sums Payable to Witnesses and Experts�� 689 5.10.6.2. Expenses Necessarily Incurred for the Purposes of Proceedings�� 690 (i) Agents, Advisers and Lawyers�� 691 (ii) Travel and Subsistence Expenses�� 694 (iii) Miscellaneous Expenses�� 695

xxviii

Detailed Contents 5.10.7. Costs in Preliminary Rulings�� 696 5.10.8. Legal Aid�� 696 5.10.8.1. Substantive Rules Applicable to the Granting of Legal Aid�� 697 5.10.8.2. Procedure Relating to Applications for Legal Aid�� 698 5.11. Applications Relating to Judgments and Orders (Bottka)�� 700 5.12. Requirements as to Enforcement (Bottka)�� 703

Index�� 705

TABLE OF TREATIES, CONVENTIONS AND EU LEGISLATION Primary EU Law Treaty on European Union (TEU) General�� 1.10, 2.20, 3.276, 4.03, 4.04 Art 1(3)�� 2.95 Art 2�� 3.96, 4.21 Art 4(3)�� 2.52, 5.24, 5.26, 5.27 Art 5��3.246, 3.247 Art 5(2)�� 1.14 Art 6�� 2.20, 3.276 Art 6(1)��2.68, 2.95, 2.106 Art 6(3)�� 2.96 Art 7��1.19, 3.96, 4.21 Art 13�� 1.13, 2.97 Art 13(1)��2.68, 3.344, 3.381, 3.417, 4.100, 5.01, 5.242 Art 13(2)�� 3.249 Art 17�� 2.15 Art 17(1)�� 1.06, 2.52 Art 19�� 1.04, 1.13, 1.15, 3.432 Art 19(1)�� 2.96 Art 19(2)�� 1.26 Art 19(3)��4.14, 4.18 Art 19(3)(a)�� 4.15, 4.17 Art 19(3)(b)��2.65, 3.691, 4.19 Art 19(3)(c)�� 4.20 Art 20�� 3.302 Art 24�� 2.68, 3.155, 3.184, 3.726 Art 26��3.155, 3.184 Art 35�� 4.21 Art 40��2.20, 2.68, 3.726 Art 48(6)�� 3.701 Art 51�� 2.95, 3.276 Art 52�� 2.123

Treaty on the Functioning of the European Union (TFEU) General�� 1.10, 3.276, 4.03, 4.04, 4.171, 5.438 Title V of Part Three�� 4.490 Art 1(2)�� 2.95 Art 15(3)�� 5.10, 5.11 Art 36�� 2.27 Art 66�� 3.101 Art 100�� 3.101 Art 101�� 3.07, 3.205, 3.267, 3.277, 3.285, 3.314, 3.445, 4.177, 4.193, 5.251 Art 102�� 3.07, 3.267, 3.277, 3.285, 3.299, 3.314, 4.181, 5.251 Art 106�� 3.298 Art 106(2)�� 3.162 Art 106(3)�� 3.34, 3.59 Art 107�� 3.298, 3.299, 5.253 Art 108�� 1.21 Art 114�� 3.248 Art 118(2)�� 3.302 Art 126�� 2.20 Art 127�� 3.101 Art 148�� 3.101 Art 153�� 3.101 Art 168�� 3.248 Art 194�� 3.250 Art 207�� 1.21 Art 207(3)�� 3.736 Art 216(2)�� 2.22, 3.290 Art 218�� 3.249 Art 218(11)��Chapter 3.9. 1.19, 3.289, 3.722, 4.06, 4.20

xxx

Table of Treaties, Conventions and EU Legislation

Art 228(2)�� 1.34 Art 245(2)�� 1.34 Art 247�� 1.34 Art 251�� 1.26, 1.31, 1.45, 1.54 Art 252�� 4.357 Art 253�� 1.27, 4.05 Art 254(2)�� 1.49 Art 254(5)�� 4.08 Art 255�� 1.27, 1.49 Art 256��18, 1.21, 2.126, 3.581, 5.158 Art 256(1)�� Section 3.6.6. 1.19, 3.618 Art 256(2)�� 3.583 Art 256(3)�� 2.67 Art 257��1.15, 1.16, 1.18 Arts 258–260��Chapter 2.1. 4.171 Art 258��1.06, 1.19, 2.02, 2.69, 2.90, 2.93, 3.34, 3.59, 3.237, 3.364, 4.15, 4.100, 4.149, 5.337 Art 259�� 2.03, 2.69, 4.24, 4.35 Art 260��1.21, 2.04 Art 260(1)�� 4.150 Art 260(2)�� Subsection 2.1.9.1. 2.61, 2.62, 4.150 Art 260(3)�� Subsection 2.1.9.2. 2.30, 2.62 Art 261�� 3.263, 3.315, 4.214 Art 262��1.20, 3.82, 3.519, 3.529, 3.530, 3.531, 4.17 Art 263��Chapter 3.1. Section 3.8.5. 1.19, 1.20, 3.04, 3.369, 3.370, 3.383, 3.412, 3.425, 3.436, 3.449, 3.507, 3.514, 3.515, 3.533, 3.646, 3.648, 3.692, 3.694, 4.15, 4.16, 4.100, 4.118, 4.122, 4.140, 4.151, 4.152, 4.155, 4.163, 4.195, 4.239, 4.430, 5.01, 5.18, 5.32, 5.260, 5.337, 5.392 Art 263(1)�� Section 3.1.3. 3.13, 3.75, 3.373, 4.100 Art 263(2)�� Subsection 3.1.4.1. Section 3.1.7. 3.668, 3.676, 4.181 Art 263(3)��Subsection 3.1.4.2. 3.668 Art 263(4)�� Subsections 3.1.4.3–3.1.4.7. 3.23, 3.95, 3.663, 3.664, 3.707, 3.709, 5.250 Art 263(6)��Section 3.1.6. 3.664, 3.708, 3.710, 3.711, 3.717, 4.75 Art 264��Section 3.1.7. 3.720 Art 264(2)�� 3.717

Art 265��Chapter 3.2. 1.19, 1.20, 2.70, 3.336, 3.345, 3.412, 3.425, 4.15, 4.100, 4.153, 4.171, 5.01, 5.337, 5.392 Art 265(1)��Section 3.2.5. 4.100 Art 265(2)�� Section 3.2.2. 4.75 Art 265(3)�� 3.373 Art 266�� 3.330, 3.366, 3.387, 3.390, 3.391, 3.718, 4.147, 4.172 Art 267��Chapter 2.2. Chapter 3.8. 1.19, 2.18, 2.54, 3.191, 3.291, 3.531, 3.648, 4.456, 4.480, 5.23, 5.26, 5.201, 5.337 Art 267(2)�� 2.109, 2.131, 5.346 Art 267(3)�� Subsection 2.2.2.2. Art 268��Chapter 3.3. 1.20, 3.64, 3.215, 3.334, 3.397, 3.494, 3.510, 3.518, 4.15, 4.100, 4.142, 4.154, 4.155, 5.130, 5.337 Art 269��1.19, 3.96, 4.21 Art 270�� Chapter 3.4. 1.17, 1.20, 3.85, 3.405, 3.476, 4.10, 4.11, 4.15, 4.16, 4.100, 4.122, 4.129, 4.140, 4.142, 4.156, 4.206, 5.32, 5.337, 5.356 Art 271��2.01, 2.17, 3.81 Art 272�� 1.20, 3.20, 3.65, 3.402, 4.15, 4.100, 4.142, 4.157 Art 274��3.402, 3.403 Art 275�� 2.20, 2.66, 3.84, 3.726 Art 276�� 2.20 Art 277��Chapter 3.7. 1.11, 3.191, 3.692, 5.337 Art 278��Subsection 5.2.7.1. 3.07, 3.324, 3.602, 5.68, 5.69, 5.70, 5.85, 5.93, 5.95, 5.118, 5.136, 5.468 Art 279�� Subsection 5.2.7.1. 2.53, 3.324, 3.602, 5.69, 5.79, 5.85, 5.93, 5.95 Art 280��3.323, 5.466 Art 281�� 1.18, 4.04 Art 283(1)�� 3.92 Art 286(6)�� 1.34 Art 287�� 3.101 Art 288��2.100, 3.13, 3.25, 3.32, 3.185 Art 289�� 1.10 Art 289(1)�� 3.181 Art 289(3)�� 3.181

Table of Treaties, Conventions and EU Legislation xxxi Art 289(4)�� 3.101 Art 290��1.10, 3.160, 3.251, 3.258, 3.295 Art 290(1)�� 3.183 Art 291�� 1.10, 3.142, 3.155, 3.160, 3.184, 3.258, 3.295 Art 291(1)��3.151, 3.184 Art 291(2)�� 1.21, 3.251 Art 291(4)�� 3.184 Art 294�� 3.181 Art 296�� 3.256, 3.264, 3.277, 3.434 Art 297��3.222, 3.272 Art 297(2)�� 3.182, 3.184, 3.230 Art 299�� 3.323, 3.602, 5.466 Art 299(4)�� 5.469 Art 331(1)�� 1.21 Art 337�� 3.250 Art 340��Chapter 3.3. 1.20, 2.70, 3.64, 3.215, 3.398, 3.494, 3.510, 3.518, 4.15, 4.16, 4.87, 4.100, 4.142, 4.154, 4.155, 5.130, 5.337 Art 340(2)�� Sections 3.3.7.–3.3.8. Art 352��3.246, 3.250 Art 355�� 2.123 Euratom Treaty General��1.10, 3.276, 4.03, 4.04, 5.438 Art 18(2)�� 4.21 Art 103�� 3.723, 4.21 Arts 104–105�� 3.723, 4.21 Art 106a�� 2.95 Art 148�� 3.383 Art 157��3.602, 5.68, 5.69 Art 164�� 3.602 Treaty of Lisbon (2007) Changes brought by the Lisbon Treaty �� 2.05, 2.23, 2.68, 2.98, 3.76, 3.130, 3.131, 3.158, 3.174, 3.344, 3.647, 3.726, 4.04, 4.21 Charter of Fundamental Rights of the European Union General�� 1.04, 1.10, 2.20, 2.68, 2.95, 2.106, 3.252, 3.275, 3.435, 3.681, 4.177, 4.195, 4.485

Arts 20–21�� 3.282 Art 41�� 3.266, 5.27 Art 41(2)c�� 3.256 Art 41(3)�� 3.395 Art 42�� 5.10 Art 47�� 1.16, 3.175, 3.284, 3.620, 3.642, 4.09, 4.316, 5.27, 5.43, 5.137, 5.201, 5.445 Art 48�� 3.285 Art 49(1)�� 3.286 Art 51�� 5.27 Art 51(1)�� 2.106 Art 52�� 5.10 Protocol No 2 Protocol No 2 of the Treaties on the Application of the principles of subsidiarity and proportionality Art 5�� 3.258 EEC Treaty (TEEC) Treaty establishing the European Economic Community (no longer in force) Art 173�� 3.76 Art 175�� 3.383 Art 184�� 3.663 EC Treaty (TEC) Treaty establishing the European Community (consolidated version of 2002) (no longer in force) Art 10�� 2.20 Art 12�� 3.683 Art 95�� 3.248 Art 152�� 3.248 Art 202�� 3.251 Art 225�� 3.581 Art 230��3.83, 3.129, 3.132, 3.158, 3.175, 3.176, 3.188 Art 232�� 3.344 Art 233�� 3.390 Art 234�� 2.98 Art 235�� 3.397 Art 236�� 3.476 Art 241�� 3.646, 3.667, 3.668

xxxii Table of Treaties, Conventions and EU Legislation Art 251�� 3.181 Art 253�� 3.256 Art 280�� 3.684 Art 293�� 2.23 Art 300�� 3.249 Art 300(6)��3.722, 3.726 Art 308�� 3.250 Treaty of Maastricht (1992) General�� 2.68, 3.76, 3.100, 3.278 Treaty of Nice (2001) General��1.15, 1.16, 1.21, 2.67, 3.95, 3.100, 3.101 Procedural rules of the EU Courts Statute Statute of the Court of Justice of the European Union, Protocol (No 3) annexed to the Treaties, last amended by Regulation (EU, Euratom) 2019/629 of the European Parliament and of the Council of 17 April 2019 amending the Statute (OJ 2019 L 111, p. 1) General��Subsection 4.1.2.1. 4.03, 4.06, 4.08, 4.12, 4.74, 4.80, 4.94, 4.198, 4.271, 5.181, 5.237, 5.244, 5.316, 5.317 Art 2�� 1.28 Art 3�� 1.28 Art 4�� 1.28 Art 8�� 1.28 Art 9�� 1.27, 1.29, 1.49 Art 9a�� 1.29 Art 10�� 1.30 Art 16�� 1.54, 4.437 Art 16(1)�� 1.32 Art 16(2)–(3)�� 1.33 Art 16(4)�� 1.34 Art 17(2)�� 1.32 Art 17(3)�� 1.33 Art 18�� 1.35 Art 19�� Subsection 4.1.5.1. 3.599, 5.343 Art 19(1)�� 5.427

Art 20�� 4.305, 4.316, 4.357 Art 20(4)�� 5.182 Art 20(5)�� 1.45, 4.315 Art 21�� 3.738, 4.48, 4.108, 4.131, 4.138, 4.159, 4.166, 4.178, 4.244, 4.382, 4.425, 4.500 Art 21(1)�� 3.217, 3.386, 3.422, 3.493 Art 21(2)��3.217, 3.350, 3.549, 4.414 Art 23��Section 4.2.8. Chapter 4.5., 2.75, 2.144, 3.698, 4.19, 4.40, 4.278, 4.369, 4.371, 5.182, 5.345 Art 23(2)�� 5.238 Art 23(4)�� 4.36 Art 23a��5.181, 5.182 Art 23bis�� 4.488 Art 24�� 4.269, 4.272, 4.275, 4.291, 4.438, 4.461, 5.28, 5.30 Art 24(1)�� 5.29 Art 24(2)��3.698, 5.29, 5.37, 5.235 Arts 24–25�� 5.31 Arts 28–29�� 4.289 Art 31�� 4.310 Art 33�� 4.347 Arts 36–38�� 4.369 Art 38�� 5.359 Art 39�� 1.43, 4.427, 5.143, 5.145, 5.148, 5.159, 5.165, 5.167 Art 40�� 3.613, 4.463, 5.84, 5.85, 5.233, 5.237, 5.266 Art 40(1)�� 3.613, 3.669, 5.239 Art 40(2)��1.24, 5.239, 5.242, 5.243, 5.253 Art 40(3)�� 5.383 Art 40(4)��5.292, 5.297 Art 41��4.208, 5.357 Art 42��5.234, 5.461 Art 43�� 5.463 Art 44��3.598, 5.464 Art 44(3)�� 4.78, 5.464 Art 45�� 3.548, 4.95 Art 45(2)�� 4.430, 4.467, 5.342 Art 46��3.423, 3.425 Art 46(1)�� 4.78 Art 47�� 1.49 Art 50a��1.17, 1.18, 2.126 Art 51�� 1.19, 1.20, 1.21, 2.126 Art 52�� 1.69 Art 53��3.537, 4.374 Art 54�� 1.22, 1.23, 1.24, 4.366

Table of Treaties, Conventions and EU Legislation xxxiii Art 54(3)�� 3.708, 5.316 Art 56�� Chapter 3.6. 3.483, 3.582, 3.592, 3.595, 3.602, 3.603, 3.604, 3.608, 3.617, 4.413, 5.154, 5.335, 5.337 Art 56(1)�� 4.75 Art 56(2)��3.605, 5.301 Art 56(3)�� 3.605 Art 57�� 1.43, 3.593, 3.602, 3.606, 3.617, 4.427, 5.154 Art 57(1)�� 5.270 Art 57(2)��5.155, 5.157 Art 57(3)��4.427, 5.159 Art 58��Section 3.6.6. 1.43, 3.582, 3.590, 3.597, 4.411, 4.421, 5.35, 5.158 Art 58a��3.594, 4.417 Art 60�� 3.323, 3.324, 3.585, 3.587, 4.408, 5.160, 5.162, 5.469 Art 60(1)�� 5.165 Art 60(2)�� 3.586, 5.179, 5.180 Art 61�� 3.580, 3.640, 4.447 Art 61(1)�� 4.447, 5.159, 5.160 Art 62a�� 5.181 CJ RoP Rules of Procedure of the Court of Justice of 25 September 2012 (OJ 2012 L 265, p. 1), last amended on 6 December 2019 (OJ 2019 L 316, p. 103) General�� Subsection 4.1.2.2. Section 4.1.2. Chapter 4.2. 4.15, 4.74, 4.94, 4.440, 4.499, 4.500, 5.182, 5.224, 5.237, 5.315, 5.368, 5.384, 5.395 Title II / Chapter 7�� 4.269, 4.438, 4.472, 5.03 Title III�� 4.453 Title III / Chapter 4�� 5.443 Title IV�� 4.445, 5.71 Title IV / Chapter 4�� 5.233 Title IV / Chapter 5�� 5.181, 5.183, 5.186 Title IV / Chapter 6�� 5.402 Title IV / Chapter 10�� 5.166 Title V / Chapter 7�� 5.443 Title VII��4.495, 5.359 Title VIII�� 4.21 Art 7�� 5.91 Art 8�� 1.29

Art 9�� 1.42 Art 10(3)�� 5.91 Art 11(1)�� 1.32 Art 11(2)�� 1.32 Art 11(4)��1.32, 1.36 Art 12�� 1.32 Art 13�� 5.91 Art 14�� 1.29 Art 15�� 1.35, 1.44, 4.201, 4.422, 4.462 Art 16��1.31, 1.35, 4.462 Art 16(1)�� 1.45 Art 18�� 1.30 Art 20�� 1.47 Art 20(1)�� 4.55 Art 20(3)�� 4.55 Art 21(4)��4.126, 4.200, 5.67, 5.262, 5.263 Art 21(5)�� 4.460 Art 24(6)�� 4.81 Art 25�� 1.41 Art 27�� 1.33 Art 27(4)�� 1.39 Art 28�� 1.35 Art 28(2)–(3)�� 1.39 Art 32�� 1.37, 4.360 Art 33�� 1.38 Art 34�� 1.39 Art 35�� 1.39 Art 36�� 4.22, 4.496 Art 37(1)�� 4.23 Art 37(1)(a)�� 4.24 Art 37(1)(b)�� 4.38 Art 37(1)(c)�� 4.39 Art 37(2)(a)–(b)�� 4.26 Art 37(2)(c)�� 4.26, 5.411 Art 37(3)��4.27, 4.36, 4.40, 4.453, 4.457 Art 37(4)�� 4.38, 4.41 Art 38(1)�� 4.32 Art 38(1)–(3)��4.29, 4.31 Art 38(4)��4.35, 4.36, 4.37, 5.268, 5.291 Art 38(5)�� 4.36 Art 38(6)�� 4.36 Art 38(7)�� 4.32 Art 38(8)�� 4.32, 4.33 Art 41�� 4.34 Arts 43–45�� 4.53 Art 46(1)–(2)�� 4.54 Art 47(2)�� 4.453 Art 48�� 4.487

xxxiv

Table of Treaties, Conventions and EU Legislation

Art 48(1)�� 4.69, 4.301 Art 48(2)�� 4.69 Art 48(3)�� 4.69 Art 48(4)�� 4.13 Art 49�� 4.80 Art 49(1)(b)�� 3.223, 4.84 Art 49(2)�� 4.89 Art 50�� 3.223 Art 51�� 3.219, 3.358, 3.423, 3.617, 4.75, 4.87, 4.467 Art 52�� 4.93 Art 53(2)�� 3.220, 4.266, 4.314, 4.366, 4.480, 5.322, 5.327, 5.329, 5.345 Art 53(3)��4.259, 4.494, 4.499, 5.221, 5.225 Art 53(4)�� 5.186 Art 53(5)�� 5.181 Art 54��4.309, 5.311 Art 55(1)(a)�� 5.315 Art 55(1)(b)��5.315, 5.317 Art 55(2)�� 5.320 Art 55(5)�� 5.319 Art 55(6)�� 5.320 Art 57��4.56, 4.57, 4,487 Art 57(1)�� 4.67, 4.453 Art 57(1)–(2)�� 4.64 Art 57(4)–(5)�� 4.65 Art 57(6)�� 4.61, 4.66 Art 57(7)�� 4.58, 4.66, 4.67, 4.90, 4.91 Art 57(8)�� 4.13, 4.58 Art 58�� 4.470 Art 59��1.41, 4.436, 4.471 Art 59(1)�� 4.258, 4.259 Art 59(2)�� 4.258, 4.261, 4.264, 4.266 Art 60��4.261, 4.437, 5.91 Art 61�� 4.472 Art 61(1)��3.123, 4.308 Art 61(2)�� 3.123, 4.308, 4.333 Art 61(2)(a)�� 4.289 Arts 61–62�� 4.270, 4.277, 4.278, 4.333, 4.439, 4.474, 5.103 Art 63��4.285, 4.286 Art 64�� 4.270, 4.285, 5.103 Art 64(1)��4.285, 4.286 Art 64(2)(b)�� 4.291 Art 64(3)�� 4.285 Art 66��4.285, 4.297 Art 67��4.285, 4.297

Arts 68–69��4.285, 4.297 Art 70��4.285, 4.299 Arts 71–73�� 4.285, 4.297, 4.299 Art 73��5.418, 5.419 Art 73(2)–(3)�� 5.420 Art 75��4.267, 4.321 Art 75(1)�� 4.305 Art 76�� 4.305, 4.311, 4.403 Art 76(2)�� 4.473 Art 77�� 4.309 Art 78�� 4.329 Art 79(1)�� 4.310 Art 80�� 4.338 Art 82�� 4.305 Art 82(1)�� 4.357 Art 82(2)�� 4.359 Art 83��4.354 Art 84(1)�� 4.347 Art 84(2)�� 4.347 Art 85�� 4.350 Art 87��4.369 Art 88�� 3.640, 4.368, 4.476 Art 88(2)�� 4.368 Art 89��4.371 Art 90�� 4.370 Art 91��3.640, 4.370 Art 91(1)�� 4.368 Art 92��4.368, 4.370 Art 94�� 2.106, 2.119, 2.138, 2.146, 2.147, 4.456 Art 95�� 4.465, 5.66 Art 96(1)�� 4.467 Art 96(2)�� 4.470 Art 97(2)��4.453, 4.464 Art 97(3)�� 4.52, 4.453 Art 98(1)�� 4.36, 4.461 Art 98(2)�� 4.36, 4.461 Art 99��2.80, 2.89, 2.151, 4.05, 4.481 Art 100(1)��2.133, 4.459 Art 100(2)�� 2.133 Art 101��2.148, 4.472 Art 101(1)��2.102, 2.130 Art 102�� 4.453, 5.359, 5.440 Art 103�� 4.478 Art 104�� 4.477 Art 104(2)�� 2.101 Art 105�� 4.483, 4.484, 5.181 Art 105(1)�� 4.485

Table of Treaties, Conventions and EU Legislation xxxv Art 105(2)�� 4.486 Art 105(3)�� 4.486 Art 105(4)�� 4.486 Art 105(5)�� 4.486 Art 106�� 4.483, 4.487, 5.181 Art 107�� 1.32 Art 107(1)�� 4.489 Art 107(2)�� 4.489 Art 109(1)�� 4.491 Art 109(2)�� 4.491 Art 109(3)�� 4.491 Art 109(4)�� 4.491 Art 109(5)�� 4.491 Art 111�� 4.491 Art 112�� 4.491 Art 113�� 4.491 Art 114�� 4.492 Art 115(1)�� 5.451 Art 115(2)�� 5.444 Art 115(3)�� 5.444 Art 116(1)–(2)�� 5.456 Art 116(3)�� 5.456 Art 116(4)�� 5.457 Art 117�� 5.447 Art 118�� 5.450 Art 119�� 3.643, 4.414, 5.267, 5.343 Art 119(1)�� 4.42 Art 119(2)–(4)�� 4.50 Art 120��2.46, 3.217, 3.386, 4.108, 4.109, 4.112, 4.120, 5.344, 5.412 Art 120(c)�� 4.124, 4.138, 4.174, 4.175, 4.178, 4.191, 4.235 Art 120(d)�� 4.160 Art 120(e)�� 4.196, 4.244 Art 121��4.414, 5.412 Art 121(1)–(2)�� 4.127 Art 122��5.267, 5.412 Art 122(1)�� 4.414 Art 122(3)�� 4.135 Art 123�� 4.199 Art 124(1)�� 4.205, 4.207, 4.210, 4.214 Art 124(2)�� 4.205 Art 124(3)�� 4.207 Art 125�� 3.669 Art 126�� 4.251 Art 126(2)��4.221, 4.226 Art 127�� 4.227, 4.235 Art 127(1)�� 3.672, 4.334

Art 127(2)�� 4.253 Art 128�� 4.244, 4.337 Art 129(1)�� 3.613, 4.312, 5.284, 5.289 Art 129(2)�� 5.293 Art 129(3)��5.292, 5.297 Art 129(4)�� 5.262, 5.263, 5.290 Art 130�� 3.613, 5.263, 5.266, 5.286 Art 130(1)��4.75, 4.200, 5.262 Art 130(3)�� 4.42, 5.267 Art 130(4)��5.267, 5.269 Art 131��5.269, 5.282 Art 131(2)–(4)�� 5.241, 5.271, 5.285 Art 132(1)�� 5.286 Art 132(2)��5.287, 5.296 Art 132(2)(a)�� 3.613 Art 132(3)�� 5.288 Art 133�� 5.203 Art 133(1)�� 5.191, 5.195, 5.196, 5.208 Art 133(2)��5.192, 5.193 Art 133(3)��5.208, 5.210 Art 134�� 5.214 Art 134(2)�� 5.216 Art 135(1)�� 5.215 Art 135(2)�� 5.215 Art 137�� 5.303, 5.359, 5.366 Art 138�� 4.173, 4.213, 4.420, 5.367 Art 138(1)�� 5.287, 5.303, 5.306, 5.367, 5.386 Art 138(2)�� 5.369 Art 138(3)��5.370, 5.372 Art 139�� 5.371, 5.377, 5.402 Art 140��5.382, 5.402 Art 140(1)–(2)�� 5.305, 5.383, 5.403 Art 140(3)��5.307, 5.384 Art 141�� 5.354, 5.389, 5.392, 5.402 Art 141(1)��5.304, 5.389 Art 141(2)�� 5.391 Art 141(3)�� 5.390 Art 141(4)�� 5.389 Art 142�� 5.347, 5.387, 5.402 Art 143��5.361, 5.402 Art 143(a)�� 5.362 Art 143(b)�� 5.364 Art 144�� 5.418, 5.419, 5.422, 5.429 Art 145�� 5.412 Art 145(1)�� 5.405, 5.407, 5.413, 5.414 Art 145(3)��5.288, 5.417 Art 147��5.351, 5.355

xxxvi

Table of Treaties, Conventions and EU Legislation

Art 147(1)��5.390, 5.392 Art 147(2)��5.390, 5.392 Art 148�� 5.351, 5.352, 5.389 Art 149�� 3.109, 3.123, 4.366, 4.446, 5.347, 5.387 Art 150�� 3.123, 3.139, 4.220, 4.366, 4.445, 5.296, 5.322, 5.324, 5.326 Art 151��4.431, 5.335 Art 151(1)�� 3.124, 4.212, 4.217, 5.330 Art 151(2)�� 5.330 Art 151(3)�� 5.331 Art 151(5)�� 5.335 Art 152��4.442, 5.357 Art 152(2)�� 5.357 Art 152(4)�� 5.357 Art 153�� 5.458 Art 154��4.498, 5.459 Art 156�� 4.208 Art 157�� 5.461 Art 157(1)(c)��5.234, 5.462 Art 158��4.498, 5.463 Art 158(1)�� 5.463 Art 159��4.498, 5.464 Art 159a�� 5.465 Art 160�� 1.43 Art 160(1)�� 5.78, 5.85, 5.93, 5.95 Art 160(2)�� 5.93 Art 160(3)��5.89, 5.108, 5.111, 5.121, 5.166 Art 160(4)�� 5.88, 5.161 Art 160(5)�� 4.427, 5.101 Art 160(6)�� 5.103 Art 160(7)��5.87, 5.96, 5.97, 5.99, 5.146, 5.148, 5.161 Art 161(1)�� 5.91 Art 162�� 5.156 Art 162(1)�� 5.142 Art 162(2)�� 5.151 Art 162(3)��5.149, 5.150 Art 162(4)�� 5.143 Art 163�� 5.148 Art 164�� 5.145 Art 167��4.411, 4.412 Art 168��3.614, 4.411 Art 168(1)�� 4.403, 4.413 Art 168(1)(b)��4.414, 4.418 Art 168(2)�� 4.414 Art 168(3)�� 4.413

Art 168(4)�� 4.415 Art 169��3.643, 4.411, 4.419, 4.420 Art 169(1)��3.596, 4.404 Art 169(2)�� 3.614, 3.623, 3.624, 4.404, 4.418 Art 170�� 4.411, 4.419, 4.420 Art 170(1)�� 3.625 Art 170(2)��4.403, 4.441 Art 170a��1.43, 3.594, 4.417 Art 170b�� 1.43, 3.594 Art 171(1)�� 5.283 Art 172�� 3.612, 3.613, 3.643, 4.403, 4.427, 4.428, 4.430, 5.261, 5.283 Art 173��4.425 Art 174�� 4.403 Art 175��4.404, 5.332 Art 176��3.643, 4.428 Art 176(2)�� 3.643, 4.403, 4.424 Art 177��4.425 Art 178(2)�� 3.599, 3.643, 4.431 Art 179�� 3.612, 4.403, 4.429, 4.430 Art 180�� 4.404 Art 180(1)�� 4.434 Art 181�� 3.617, 4.98, 4.443, 4.445, 5.327 Art 182�� 4.05, 4.365, 4.403, 4.444 Art 183�� 3.643, 5.328, 5.348, 5.352 Art 184�� 4.404, 4.420, 5.359 Art 184(1)�� 5.402 Art 184(2)�� 5.400 Art 184(3)�� 5.403 Art 184(4)�� 5.404 Art 185(1)�� 5.451 Art 185(2)�� 5.444 Art 186(1)�� 5.451 Art 186(2)�� 5.451 Art 186(3)��4.403, 5.453 Art 187(1)��5.446, 5.456 Art 187(2)�� 5.456 Art 187(3)�� 5.457 Art 188(1)�� 5.447 Art 188(2)��5.449 Art 189�� 5.450 Art 190��4.445, 5.181 Art 190(1)�� 5.71, 5.166, 5.183, 5.186, 5.233, 5.237, 5.322, 5.324 Art 190(2)�� 3.613, 5.233, 5.263, 5.286 Art 190a(1)�� 5.64

Table of Treaties, Conventions and EU Legislation xxxvii Art 190a(2)�� 5.64 Art 196(2)��3.733, 3.739 Art 196(3)��4.20, 4.501, 4.503 Art 197��4.502, 4.506 Art 198�� 4.20, 4.505 Art 201�� 4.21 Art 202�� 4.21 Art 203�� 4.21 Art 204�� 4.21 Art 205�� 4.21 Art 206�� 4.21 Changes brought by the CJ RoP of 2012 General��4.05, 4.309, 4.403, 4.404, 5.187, 5.196 Art 38(4)�� 4.35 Art 76�� 4.403 Art 120(c)�� 4.124 Art 126(2)�� 4.221 Art 168(1)�� 4.403 Art 169(1)�� 4.404 Art 169(2)�� 4.404 Art 170(2)�� 4.403 Art 172�� 4.403 Art 174�� 4.403 Art 175�� 4.404 Art 180�� 4.404 Art 182�� 4.403 Art 184�� 4.404 Art 186(3)�� 4.403 Supplementary Rules of the Court of Justice Supplementary rules of the Court of Justice of 1 February 2014 (OJ 2014 L 32, p. 37) General�� 4.07, 4.11 Arts 4–5�� 4.466 CJ PD Practice Directions to parties concerning cases brought before the Court [of Justice] of 10 December 2019 (OJ 2020 L 42, p. 1) General��4.03, 4.12, 4.298, 4.313, 4.465, 5.282 para 7�� 4.465, 5.66

para 8�� 5.66 para 9��4.465, 5.66, 5.67 para 10�� 4.18, 4.19 para 12�� 4.468 para 13�� 4.104, 4.109, 4.129, 4.500 para 14�� 4.126 para 15��4.204, 4.207 para 16�� 4.206, 4.215, 4.216 para 17�� 4.223, 4.224, 4.226, 4.251 para 18�� Section 5.3.2. para 20�� 4.414 para 21�� 4.410, 4.411, 4.416 para 22�� 4.411 para 23��4.411, 4.417 para 24��4.411, 4.417 para 25��4.411, 4.417 para 26��4.426, 4.431 para 27�� 4.424, 4.426, 4.428 para 28�� 4.426 para 29�� 4.433 para 30�� 4.435 para 31��4.427 para 32�� 5.283 para 34��5.286, 5.287 para 35�� 5.288 para 37�� 5.216 para 38�� 5.237 para 39�� 4.136 para 40��4.136, 4.416 para 41�� 4.136 para 42�� 4.136 para 43�� 4.136 para 44��4.136, 4.418 para 45�� 4.136 para 46��4.58, 4.70, 4.301 para 47�� 4.58 para 48�� 4.58, 4.66 para 49�� 4.58, 4.66 para 50�� 4.58 paras 51–69�� 4.325 para 51�� 4.305 para 52�� 4.313 para 53��4.307, 4.312 para 54�� 4.321 para 57�� 4.327 para 60��4.323, 5.290 para 61�� 4.329 para 64�� 4.440

xxxviii

Table of Treaties, Conventions and EU Legislation

para 65�� 4.338 para 66�� 4.343 GC RoP Rules of Procedure of the General Court of 4 March 2015 (OJ 2015 L 105, p. 1), last amended on 11 July 2018 (OJ 2018 L 240, p. 68) General��Subsection 4.1.2.3. Chapters 4.1–4.2. Chapter 5.1., 5.181, 5.182, 5.224, 5.315, 5.384, 5.443 Title III��4.374, 4.447 Title III / Chapter 6��4.269, 4.285, 5.03 Title III / Chapter 14�� 5.233 Title III / Chapter 15�� 5.443 Title III / Chapter 16��5.71, 5.181, 5.186 Title IV�� 4.17, 4.374, 4.447, 5.260 Title V�� 4.10 Art 1(2)(a)�� 5.209 Art 1(2)(b)�� 1.55, 1.61, 5.222 Art 1(2)(d)�� 4.317 Art 1(2)(i)��3.519, 4.15, 4.16, 4.100, 4.374, 5.260 Art 2(b)�� 4.130 Art 3(1)–(2)�� 1.49 Art 3(3)�� 4.10 Art 5�� 1.51 Art 8�� 5.92 Art 9�� 1.52 Art 10�� 1.65 Art 10(2)�� 5.222 Art 11�� 5.92 Art 12�� 5.92 Art 13�� 1.55 Art 15�� 1.56 Art 18(1)–(4)�� 1.55 Art 21��4.360 Arts 21–22�� 1.62 Art 23(1)�� 1.56 Art 24�� 1.63 Art 24(1)�� 1.55 Art 25�� 4.201 Art 25(1)�� 4.09 Art 26�� 4.201 Art 26(1)–(2)�� 1.67 Art 26(2)�� 1.58 Art 27�� 4.201

Art 27(2)–(3)�� 1.59, 4.09 Art 28(1)�� 1.56 Art 28(2)�� 4.10 Art 29�� 1.54 Art 29(1)�� 1.57 Art 29(2)�� 1.57 Art 29(3)�� 1.57 Art 30�� 1.50 Art 31�� 1.50 Art 32�� 1.53 Art 35�� 1.68 Art 35(1)�� 4.55 Art 43�� 1.64 Art 43(1)�� 4.347 Art 44�� 4.22 Art 45(1)�� 4.23, 4.25 Art 45(1)(b)�� 4.38 Art 45(1)(c)�� 4.39 Art 45(2)�� 4.38, 4.41 Art 45(3)(b)�� 5.411 Art 45(4)�� 4.375, 4.384 Art 45(4)(a)�� 4.28 Art 45(4)(b)(c)�� 4.28 Art 46(1)�� 4.32 Art 46(1)–(3)�� 4.29, 4.31 Art 46(4)–(5)��4.37, 5.268, 5.291 Art 46(6)�� 4.32 Art 46(7)�� 4.32, 4.33 Art 49�� 4.34 Art 51��5.267, 5.343 Art 51(1)�� 4.42 Art 51(2)��4.50, 4.133, 4.381 Art 51(3)��4.50, 4.134, 4.381 Art 51(4)�� 4.50 Arts 52–54�� 4.53 Art 55�� 3.485, 5.50 Art 55(1)–(2)�� 4.54 Art 56a��1.64, 4.13, 4.128 Art 56a(1)�� 4.58, 4.68 Art 57�� 4.68 Art 57(2)�� 4.69 Art 58�� 4.80 Art 58(1)(b)�� 3.223, 4.84 Art 58(2)�� 4.86, 4.89 Art 58(3)�� 3.223, 4.81 Art 59��3.223, 3.228 Art 60�� 3.219, 3.358, 3.423, 3.492, 3.538, 3.548, 4.75, 4.87, 4.387, 4.396

Table of Treaties, Conventions and EU Legislation xxxix Art 61�� 4.77, 4.93 Art 62�� 4.94 Art 64��4.15, 4.276, 4.292, 4.296, 5.28, 5.30, 5.39, 5.43, 5.49, 5.56, 5.63 Arts 64–65�� 5.22, 5.36, 5.38, 5.47 Art 65�� 5.46 Art 65(1)��4.276, 4.301, 5.20, 5.30, 5.39 Art 66�� 4.200, 5.66 Art 67(1)�� 4.259, 5.217, 5.221, 5.229 Art 67(2)�� 4.09, 4.259, 5.222, 5.225 Art 68�� 4.309 Art 68(1)–(2)��3.218, 5.311 Art 68(3)�� 5.311 Art 68(4)�� 5.30, 5.39, 5.312, 5.314 Art 69(b)��5.316 Art 69(c)�� 5.318 Art 69(d)�� 5.317 Art 70(2)�� 5.320 Art 71(1)�� 5.315 Art 71(2)�� 5.319 Art 71(3)�� 5.320 Art 72�� 4.56, 4.57 Art 72(4)�� 4.58, 4.62 Art 76�� 3.217, 3.386, 4.104, 4.108, 4.109, 4.120, 4.166, 4.379, 5.344, 5.412 Art 76(b)�� 4.48 Art 76(d)�� 3.208, 3.422, 3.493, 4.124, 4.138, 4.144, 4.145, 4.146, 4.174, 4.175, 4.178, 4.191, 4.193, 4.235 Art 76(e)��4.159, 4.160 Art 76(f)��4.243, 4.255 Art 77�� 5.412 Art 78�� 5.412 Art 78(2)�� 4.131 Art 78(3)�� 4.131 Art 78(4)�� 4.112, 4.132, 5.267 Art 78(6)�� 4.135 Art 79��4.126, 4.200, 4.310, 5.67, 5.264 Art 80�� 4.199 Art 81(1)�� 4.76, 4.205, 4.207, 4.210, 4.214, 5.195 Art 81(3)�� 4.76, 4.207, 4.430, 5.195 Art 82�� 3.669 Art 83�� 4.251 Art 83(1)�� 4.219

Art 83(3)��4.221, 4.226 Art 84�� 4.175, 4.227, 4.235, 4.304, 4.352, 4.449, 5.41 Art 84(1)��3.672, 4.203, 4.334, 4.400 Art 84(2)�� 4.228 Art 84(3)�� 4.253 Art 85��4.203, 4.243, 4.245, 4.248, 4.255, 4.335, 4.337, 4.352 Art 85(1)�� 4.196, 4.243, 4.255, 5.33 Art 85(2)–(3)�� 3.126 Art 85(3)�� 4.246 Art 86�� 4.161, 4.163, 4.175 Art 86(1)–(2)��4.163 Art 86(2)�� 4.165 Art 86(4)�� 4.166 Art 86(5)�� 4.166 Art 86(6)–(7)�� 4.167 Art 87(1)��4.258, 4.259 Art 87(2)�� 4.258, 4.261, 4.264, 4.266 Art 87(3)�� 4.282 Art 88��4.197, 4.272, 4.273, 5.32, 5.214 Art 88(1)�� 4.271, 5.32, 5.35 Art 88(2)�� 5.33, 5.34 Art 88(3)�� 5.37 Art 89�� 4.277, 5.103, 5.214 Art 89(2)–(3)�� 5.30 Art 89(3)�� 3.123, 4.270, 4.275 Art 89(3)(a)�� 4.308 Art 89(3)(c)�� 5.50 Art 89(4)��4.308, 4.333 Art 90��4.279, 5.214 Art 91�� 4.270, 4.275, 5.31, 5.103 Art 91(a)�� 4.289 Art 91(b)�� 4.291, 5.37, 5.46, 5.48 Art 91(b)–(c)��4.271, 4.296, 5.22 Art 91(3)(e)�� 5.50, 5.51 Art 92(1)�� 4.285, 5.31 Art 92(2)�� 4.273 Art 92(3)��4.271, 4.292, 4.293, 5.38, 5.44, 5.46 Art 92(7)�� 4.248, 4.254, 4.285 Art 93�� 4.297 Art 94�� 4.297 Art 95�� 4.297 Art 96�� 4.299 Arts 97–100��4.297, 4.299 Art 100��5.418, 5.419 Art 100(2)–(3)�� 5.420

xl

Table of Treaties, Conventions and EU Legislation

Art 103��Subsection 5.1.3.1. 4.276, 4.295, 5.30, 5.37, 5.38, 5.39, 5.40, 5.42, 5.57 Art 103(1)�� 4.295 Art 103(4)�� 5.42 Art 104�� 4.276, 4.295, 4.296, 5.22, 5.30, 5.39 Art 105��Subsection 5.1.3.2. 5.65, 4.09, 4.276, 4.295, 5.30, 5.40, 5.42 Art 105(1)�� 4.58 Art 105(8)��4.09, 4.276, 5.30, 5.39, 5.40, 5.44 Art 106�� 4.09, 4.266, 4.316, 4.317, 4.399 Art 106(1)�� 4.282 Art 107�� 4.321 Art 107(2)�� 4.321 Art 108(1)�� 4.321 Art 110(1)�� 4.329 Art 110(2)�� 4.329 Art 110(3)�� 4.338 Art 110(4)�� 4.329 Art 111��4.271, 4.344 Art 112�� 1.50, 4.357 Art 113�� 4.271, 4.355 Art 114(1)�� 4.347 Art 114(2)�� 4.347 Art 115�� 4.350 Art 117��4.369 Art 118�� 4.368 Art 118(2)�� 4.368 Art 119�� 4.371 Art 120�� 4.370 Art 121�� 4.370 Art 121(1)�� 4.368 Art 122��4.368, 4.370 Art 123�� 5.357 Art 123(2)�� 5.357 Art 123(3)�� 5.357 Art 123(4)�� 5.357 Art 124��5.351, 5.391 Art 124(1)�� 5.355, 5.390, 5.392 Art 124(2)�� 5.355, 5.390, 5.392 Art 125�� 5.351, 5.352, 5.389 Arts 125a–125d��4.10, 4.16, 5.356 Art 125b(3)�� 5.392 Art 126�� 3.220, 4.48, 4.98, 4.364, 4.366, 5.296, 5.322, 5.327, 5.329

Art 127�� 4.366 Art 128�� 4.366 Art 129�� 3.123, 3.139, 4.48, 4.98, 4.220, 4.366, 5.296, 5.322, 5.324, 5.326 Art 130�� 4.98, 5.335 Art 130(1)�� 3.124, 4.212, 4.217, 5.294, 5.330, 5.358 Art 130(2)�� 5.347 Art 130(3)�� 5.330 Art 130(4)��4.249, 5.331 Art 130(6)�� 4.48 Art 131��3.109, 3.123, 4.366, 5.347, 5.387 Art 131(2)�� 5.348 Art 132�� 4.365, 5.317 Art 133�� 5.303, 5.359, 5.366, 5.393 Art 134�� 4.213, 5.303, 5.367, 5.396 Art 134(1)�� 3.559, 4.173, 5.287, 5.306, 5.367, 5.386 Art 134(2)�� 5.369 Art 134(3)�� 5.370 Art 135��5.371, 5.396 Art 135(1)�� 5.372, 5.378 Art 135(2)�� 5.377, 5.378, 5.379 Art 136�� 5.354, 5.389, 5.392, 5.397 Art 136(1)��5.304, 5.389 Art 136(3)�� 5.390 Art 136(4)�� 5.389 Art 138�� 5.382, 5.392, 5.397 Art 138(1)–(2)�� 5.383 Art 138(2)�� 5.305 Art 138(3)��5.307, 5.384 Art 139�� 5.361 Art 139(a)�� 3.485, 3.597, 5.362, 5.363 Art 139(b)�� 5.364 Art 139(c)��5.365 Art 140�� Section 5.10.6. Art 142(1)�� 3.539, 4.317, 5.284, 5.289 Art 142(2)�� 5.293 Art 142(3)��5.292, 5.297 Art 143�� 5.266 Art 143(1)��4.75, 4.200, 5.264 Art 143(2)��5.266 Art 143(3)�� 4.42, 5.267 Art 143(4)�� 5.267 Art 144�� 5.269, 5.333, 5.396 Art 144(2)�� 5.272 Art 144(3)�� 5.294 Art 144(4)��5.241, 5.267

Table of Treaties, Conventions and EU Legislation xli Art 144(5)��5.241, 5.272 Art 144(6)��5.270, 5.396 Art 144(7)��5.30, 5.39, 5.271, 5.272, 5.285 Art 144(8)�� 5.397 Art 144(9)�� 5.397 Art 144(10)�� 5.398 Art 145(1)�� 5.286 Art 145(2)��5.287, 5.296 Art 145(3)�� 5.288 Art 146(1)�� 5.451 Art 146(2)��5.328, 5.446 Art 147(1)�� 5.451 Art 147(2)��5.451, 5.452 Art 147(3)�� 5.444 Art 147(4)�� 5.451 Art 147(5)–(6)�� 5.451 Art 147(6)�� 4.58 Art 147(7)�� 5.453 Art 148�� 3.595 Art 148(1)–(2)�� 5.454 Art 148(3)�� 5.457 Art 148(4)–(6)�� 5.455 Art 148(7)�� 5.448 Art 148(8)�� 5.457 Art 149�� 3.595 Art 149(1)�� 5.447 Art 149(2)��5.449, 5.457 Art 149(3)�� 5.449 Art 149(5)�� 5.449 Art 150��3.595, 5.450 Art 150(2)�� 5.457 Art 151�� 5.191, 5.193, 5.219 Art 151(1)�� 5.195, 5.206, 5.209, 5.220 Art 151(2)��4.09, 5.209, 5.211 Art 151(3)��5.193, 5.214 Art 151(4)�� 5.214 Art 151(8)�� 5.335 Art 152�� 5.192, 5.193, 5.220 Art 152(1)�� 5.193 Art 152(2)�� 5.193 Art 153��5.217, 5.229 Art 154(1)�� 5.195 Art 154(2)�� 5.195 Art 154(3)��5.214, 5.216 Art 154(4)�� 5.195, 5.214, 5.216 Art 155(1)�� 5.215 Art 155(2)�� 5.215 Art 156�� 1.65

Art 156(1)�� 5.78, 5.85, 5.93, 5.95, 5.394 Art 156(2)�� 5.85, 5.93 Art 156(4)��5.89, 5.105, 5.108, 5.111, 5.121 Art 156(5)�� 5.88, 5.107 Art 157�� 5.92 Art 157(1)�� 5.101 Art 157(2)��5.87, 5.96, 5.98, 5.99, 5.146, 5.148, 5.154 Art 157(3)�� 5.103 Art 157(4)�� 5.92 Art 158(1)��5.142, 5.155 Art 158(2)�� 5.151 Art 158(3)��5.149, 5.150 Art 158(4)�� 5.143 Art 158(5)�� 5.152, 5.393, 5.394 Art 159��5.148, 5.164 Art 160�� 5.145 Art 162��5.414, 5.458 Art 163�� 5.316 Art 164�� 5.459 Art 166�� 4.208 Art 167�� 5.461 Art 167(1)(c)��5.234, 5.462 Art 168�� 5.463 Art 168(1)�� 5.463 Art 169�� 5.464 Art 170��3.595, 5.412 Art 170(1)��5.405, 5.407 Art 170(2)�� 5.413 Art 170(3)�� 5.405, 5.413, 5.415 Art 170(4)�� 5.417 Art 172�� 3.532 Art 173�� 4.17, 5.233 Art 173(1)��3.538, 5.260 Art 173(2)�� 3.538 Art 173(3)�� 3.539, 5.260, 5.302 Art 173(6)�� 3.539, 4.390, 5.302, 5.357 Art 174��3.536 Art 175�� 3.536 Art 175(1)�� 3.542 Art 176�� 3.536 Art 177�� 3.549, 4.378 Art 177(1)�� 4.379 Art 177(1)(d)�� 4.382 Art 177(3)�� 4.381 Art 177(4)�� 4.381 Art 177(5)�� 4.381 Art 177(6)�� 4.381

xlii

Table of Treaties, Conventions and EU Legislation

Art 178(1)�� 3.538, 4.380, 4.384 Art 178(2)��4.380, 4.384 Art 178(3)��4.384, 5.265 Art 178(5)�� 4.385 Art 179��3.538, 4.386, 4.387, 5.233, 5.265 Art 180(1)��4.388 Art 180(2)�� 4.388 Art 181��4.391, 4.397 Art 182��3.540, 5.233 Art 182(1)��4.393, 4.394 Art 183–184�� 4.395, 5.233, 5.302 Art 184(1)��3.540, 3.560 Art 185��4.396, 5.233 Art 186�� 4.397 Art 187�� 3.561 Art 188��3.562, 4.379 Art 190�� 5.359 Art 190(1)�� 3.559 Art 190(2)��3.558, 5.423 Art 190a(1)�� 5.64 Art 190a(2)�� 5.64 Art 191�� 4.374, 5.71, 5.181, 5.186, 5.322, 5.324, 5.327, 5.357 Art 215��3.640, 4.447 Art 216�� 3.640 Art 217�� 3.640, 4.447, 4.448 Art 217(1)��4.448, 4.450 Art 217(2)��4.450, 5.316 Art 218�� 3.640 Art 219��3.640, 5.401 Art 223�� 5.401 Changes brought by the GC RoP of 2015 General�� 4.08, 4.09, 4.11, 4.28, 4.162, 4.228, 4.231, 4.263, 4.265, 4.273, 4.352, 4.375, 4.397, 5.43, 5.44, 5.187, 5.224 Art 27�� 4.201 Art 45(4)�� 4.375 Art 51(3)�� 4.50 Art 62�� 4.94 Art 79�� 5.264 Art 83(3)�� 4.221 Art 84��4.227, 4.228, 4.304, 4.335, 4.352 Art 85�� 4.352 Art 86��4.161, 4.163 Art 88��4.272, 4.273

Art 91(c)�� 4.296 Art 92(3)�� 4.292–293, 5.38, 5.44 Art 103��4.276, 5.42, 5.44 Art 105�� 5.44 Art 106��4.316, 4.399 Art 132�� 4.365 Art 139(a)�� 5.363 Art 143(1)�� 5.264 Art 144(3)�� 5.294 Art 160�� 5.145 GC PR Practice rules for the implementation of the Rules of Procedure of the General Court of 20 May 2015 (OJ 2015 L 152, p. 1), last amended on 17 October 2018 (OJ 2018 L 294, p. 23) General��4.03, 4.12, 4.130, 4.298, 4.383, 5.314, 5.365 Annexes 1–3�� 4.110, 4.137, 4.199 paras 3–5�� 4.55 para 41�� 4.326 para 50�� 4.12 para 66��4.86, 4.89 para 69�� 4.93 paras 74–76�� 5.66 para 76�� 5.67 para 86��4.255 para 88�� 4.58 para 89�� 4.58 para 90�� 4.58, 4.62 para 91�� 4.58 para 92�� 4.31, 4.70, 4.301 para 94�� 4.301 para 99�� 4.31 para 105�� 4.129, 4.186, 4.206, 4.224, 5.287, 5.288 para 107�� 4.377 paras 109–111�� 4.130 para 112�� 4.136 para 113�� 4.136 para 114��4.136, 4.148 para 115�� 4.136 para 116�� 4.136 para 117�� 4.136 para 118��4.126, 4.136 para 119�� 4.136

Table of Treaties, Conventions and EU Legislation xliii paras 120–121�� 5.451 para 124�� 4.211 para 126�� 4.215 paras 129–130��4.221, 4.251 para 141�� 4.399 para 142�� 4.307, 4.319, 4.399 para 143��4.318, 4.399 para 144�� 4.321 paras 144–172�� 4.325 para 145�� 4.321 para 146�� 4.321 paras 147–150�� 4.322 para 153�� 4.327 para 161�� 4.329, 4.342 paras 162–163��4.323, 5.290 para 164�� 4.329 paras 168–171�� 4.324 para 172�� 4.348 paras 173–174�� 5.39 para 176��5.312, 5.314 para 177�� 5.272 paras 177–184�� 5.271 para 178�� 5.272 paras 179–180��5.273, 5.314 paras 179–187�� 5.312 paras 181–183��5.274, 5.314 para 184��5.275, 5.314 paras 185–186�� 5.314 para 188�� 5.38, 5.46 para 189�� 5.37 paras 189–190�� 5.48 para 191�� 5.50 para 192�� 5.51 para 193�� 5.52 paras 198–207�� 5.451 para 208��5.192, 5.193 para 209�� 5.193 para 210�� 5.193 para 213�� 5.193 para 215��5.193, 5.214 para 216�� 5.195 para 217�� 5.195 para 218�� 5.195 para 220�� 5.195 para 221��5.214, 5.215 para 222�� 5.216 para 224�� 5.96 para 225�� 5.89

para 226�� 5.89 para 227�� 5.88 CJ e-Curia Decision Decision of the Court of Justice of 16 October 2018 on the lodging and service of procedural documents by means of e-Curia (OJ 2018 L 293, p. 36) General�� 4.03, 4.13, 4.59, 4.68 Art 3�� 4.60 Art 5�� 4.61 Art 6�� 4.68 Art 6(2)�� 4.199 Art 7�� 4.68, 4.83 GC e-Curia Decision Decision of the General Court of 11 July 2018 on the lodging and service of procedural documents by means of e-Curia (OJ 2018 L 240, p. 72) General�� 4.03, 4.13, 4.59, 4.68 Art 3�� 4.60 Art 5�� 4.61 Art 6�� 4.68, 4.83 Art 6(2)�� 4.199 EU legislation Staff Regulations (1962) Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (OJ 1962 P 45, p. 1385), as amended General��Section 3.4.2. 3.398, 3.405, 3.472, 3.475, 3.481, 3.482, 3.486, 3.507, 3.682 Arts 1a–1b��3.477, 3.481 Article 12bis�� 3.507 Art 24�� 3.481, 3.500, 3.507 Arts 29–31�� 3.85 Art 90��3.487

xliv Table of Treaties, Conventions and EU Legislation Art 90(1)�� 3.488 Art 90(2)�� 3.489, 3.496, 3.506, 4.131 Art 91�� 3.477, 3.480, 3.496 Art 91(1)��3.498, 3.504 Art 91(2)��3.487 Art 91(3)��3.492 Community Plant Variety Regulation 2100/94 Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1) General�� 3.519 Art 29�� 3.530 Art 73�� 3.522, 3.530, 4.17, 4.374 Art 73(1)�� 3.550 Art 73(2)��3.551, 3.566 Art 73(3)�� 3.533 Art 73(4)�� 3.548 Art 73(5)��3.555, 3.577 Art 74�� 3.530 Art 100(2)�� 3.530 Basic Anti-Dumping Regulation 384/96 Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1) (no longer in force) General�� 3.293 Directive 98/44 Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions (OJ 1998 L 213, p. 13) General�� 3.294 State Aid Procedural Regulation 659/1999 Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 88 of the EC Treaty (OJ 1999 L 83, p. 1) (no longer in force) General��3.671, 3.673

Art 10(1)�� 3.362 Art 10(3)�� 3.32, 3.171 Regulation 1150/2000 Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/ EC, Euratom on the system of the Communities’ own resources (OJ 2000 L 130, p. 1) (no longer in force) Art 17(2)�� 2.13 Rules of Procedure of the Commission of 2000 (OJ 2000 L 308, p. 26) Arts 13–14�� 3.90, 3.272 Art 18�� 3.272 Regulation 1049/2001 Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) General��Subsection 5.1.2.2. Subsection 5.1.2.4. 3.33, 4.296, 4.372, 5.03, 5.25, 5.300 Recitals 2–3�� 5.09 Art 4(1)�� 5.14 Art 4(2)–(3)�� 5.15 Art 6�� 5.16 Art 6(1)�� 5.19 Arts 7–8�� 5.16 Art 8(3)�� 3.37 Community Design Regulation 6/2002 Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1) General�� 3.519 Art 1(3)�� 3.520 Art 60(3)��3.525, 3.587 Art 61�� 3.530 Art 61(1)�� 3.550 Art 61(2)��3.551, 3.566

Table of Treaties, Conventions and EU Legislation xlv Art 61(3)�� 3.569 Art 61(4)�� 3.533 Art 61(5)�� 3.548 Art 61(6)��3.555, 3.577 Art 62�� 4.17, 4.374 Framework Directive 2002/21 Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33) Art 7�� 3.17 Regulation 1/2003 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1) General�� 3.267, 3.315, 3.631 Art 23(3)�� 3.315 Art 25(6)�� 5.319 Art 27(1)–(2)�� 3.267 Art 27(2)�� 5.05 Art 31�� 3.263, 3.315, 4.214 Regulation 773/2004 Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ 2004 L 123, p. 18) Art 7(1)�� 3.372 Merger Regulation 139/2004 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1) Art 10(6)�� 3.37 Art 18(3)–(4)�� 3.267 Art 21�� 3.59

Fine Setting Guidelines of 2006 Guidelines on the method of setting fines imposed pursuant to Article 23(2)a of Regulation No 1/2003 (OJ 2006 C 210, p. 2) General��3.296, 3.689 para 35�� 5.469 REACH Regulation 1907/2006 Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency (OJ 2006 L 396, p. 1) General��3.166, 3.183, 5.11 Art 57�� 3.24, 3.186 Art 59�� 3.24 Art 59(10)�� 3.228 Biocides Regulation 528/2012 Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products (OJ 2012 L 167, p. 1) Article 5(3)�� 3.363, 3.367, 4.153 Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty of 2014 (OJ 2014 C 249, p. 1) General�� 3.58, 3.296 State Aid Procedural Regulation 2015/1589 Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9) General�� 3.362 Art 4(6)�� 3.37 Art 6(2)�� 3.267

xlvi

Table of Treaties, Conventions and EU Legislation

Basic Anti-Dumping Regulation 2016/1036

European Convention on Human Rights (1950)

Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21) General�� 3.295 Art 9(4)�� 3.184 Art 20�� 3.267, 5.05

Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), signed at Rome on 4 November 1950 General�� 3.681 Art 6��2.91, 3.175, 3.284, 3.285, 3.286, 4.316, 5.25, 5.27 Art 13��3.175, 3.284, 5.27

EU Trade Mark Regulation 2017/1001

Nice Agreement (1957)

Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1) General��1.14, 3.519, 3.521, 3.530, 3.658 Art 1(2)�� 3.520 Art 6�� 3.521 Art 7�� 3.545, 3.564, 3.575 Art 8(1)(b)�� 3.546 Art 8(5)�� 3.576 Art 41�� 3.546 Art 42��3.545, 3.546 Art 46(1)�� 3.546 Arts 58–60�� 3.547 Art 68(1)�� 3.544 Art 71(1)�� 3.544 Art 71(3)��3.525, 3.587 Art 72�� 3.530, 4.17, 4.374 Art 72(1)�� 3.550 Art 72(2)��3.551, 3.566 Art 72(3)�� 3.569 Art 72(4)�� 3.533 Art 72(5)�� 3.548 Art 72(6)��3.555, 3.577 Art 161�� 3.546 Arts 159–164�� 3.544

Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, signed at Nice on 15 June 1957 General��3.543, 3.575 European Patent Convention (1973) European Patent Convention (EPC), Convention on the Grant of European Patents, signed at Munich on 5 October 1973 General�� 2.124, 3.291, 3.301, 3.523 Art 2(1)(c)�� 3.531 Art 121a�� 3.531 Marpol Convention (1973) International Convention for the Prevention of Pollution from Ships (Marpol), signed at London on 2 November 1973 General�� 3.291 UNCLOS Convention (1982)

International Agreements

The United Nations Convention on the Law of the Sea (UNCLOS), signed at Montego Bay on 10 December 1982 General�� 3.292

GATT Agreement (1947)

CBD Agreement (1992)

General Agreement on Tariffs and Trade (GATT), signed at Geneva on 30 October 1947 General��3.291, 3.292

Convention on Biological Diversity (CBD), signed at Rio de Janeiro on 5 June 1992 General�� 3.294

Table of Treaties, Conventions and EU Legislation xlvii WTO Agreement (1994)

TRIPS Agreement (1994)

Agreement establishing the World Trade Organization, signed at Marrakesh on 15 April 1994 General�� 3.292, 3.293, 3.294, 3.703, 4.505

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), forming Annex 1C to the Agreement establishing the World Trade Organization General�� 1.09, 3.292

TBT Agreement (1994)

Aarhus Convention (1998)

Agreement on Technical Barriers to Trade (TBT), contained in Annex 1A to the Agreement establishing the World Trade Organization General�� 3.292

Aarhus Convention on Access to information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, signed in Aarhus on 25 June 1998 (OJ 2006 L 264, p. 13) Art 9(3)�� 3.685

WTO Anti-Dumping Code (1994) Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103), contained in Annex 1A to the Agreement establishing the World Trade Organization General�� 3.293

Unified Patent Court Agreement (2013) Agreement on a Unified Patent Court, signed at Brussels on 19 February 2013 (OJ 2013 C 175, p. 1) General�� 1.16, 2.124 Art 21��2.124, 3.531 Art 32�� 3.531

xlviii

part 1 Enforcement of EU Law and Judicial Organisation of the EU

2

1.1. Introduction – Enforcement of EU Law and Judicial Avenues [written by Viktor Luszcz1]

1.1.1. Overview – Structure of the Book Subject. This book presents the judicial avenues through which rights derived from EU law may be asserted against Member States, private parties and EU institutions or bodies,2 in case they breach EU law, as well as the procedural issues which are crucial from the point of view of the effective presentation or defence of a case.

1.01

Parts 2 and 3: judicial avenues. While the concepts of primacy of EU law, effective judicial protection and the complete system of judicial remedies are well known, prospective litigants must carefully choose the right party against whom they bring the case, the judicial forum they turn to and the form of proceedings which they initiate, in order to have the opportunity to obtain a remedy based on Union law. Part 2 – Enforcement of EU Law against Member States and private parties concerns the scenario where EU law is allegedly breached by a national authority or a private party. The European Commission has the power to initiate infringement proceedings against a Member State that fails to fulfil its obligations under Union law in order to enforce the latter (Chapter 2.1). In addition, litigants may also assert their rights derived from EU law before national courts, by arguing that the conduct of a national authority or a private party, which might comply with national legislation, was not in line with Union law provisions. National judges have the duty to apply EU law, and where its content needs to be established or where the compatibility of national rules with EU provisions is questionable, they may or must make a preliminary reference to the Court of Justice on the interpretation of Union law (Chapter 2.2). In turn, Part 3 – Protection against Acts of the EU presents the types of actions which may be brought in cases where illegalities have been committed by EU institutions or bodies. Most proceedings of this category must be initiated before the EU Courts (the Court of Justice and the General Court) directly against the EU institution or body as the defendant (Chapter 3.1. Action for Annulment; Chapter 3.2. Action for Failure to Act; Chapter 3.3. Action for Damages; Chapter 3.4. Staff Cases; Chapter 3.5. Intellectual Property Cases; Chapter 3.6. Appeals; Chapter 3.7. Plea of Illegality). However, where the illegality of an EU act (which cannot be challenged directly before the EU Courts by the applicant) affects the legal relationship between two private parties or the conduct of a Member State authority that applies or implements that illegal EU act, the available judicial avenue is to bring a case before a national court, which may then make a preliminary reference to the Court of Justice on the validity of the EU measure (Chapter 3.8). Finally, the primacy of the

1.02

1 Partner, Danubia Legal – Luszcz Law Firm. Attorney at law specialising in European and Hungarian competition and intellectual property law, member of the Budapest Bar. Previously worked 11 years as a référendaire at the General Court of the EU. 2 Throughout this book, the term ‘institution or body’ denotes any institution, body, office or agency of the Union within the meaning of Arts 263(1) and 265(1) TFEU, while the term ‘EU institution’ is reserved for institutions of the Union listed in Art 13(1) TEU.

4 Introduction – Enforcement of EU Law and Judicial Avenues Treaties must also be asserted when the EU intends to conclude international agreements. To that effect, Member States and some of the EU institutions may request the Court of Justice to issue an opinion on the compatibility of a draft international agreement with the Treaties (Chapter 3.9). 1.03

Parts 4 and 5: procedural issues. Once the case reaches the EU Courts, whether as a direct action, a preliminary reference made by a national court or a request for an opinion, the Rules of Procedure of the Court of Justice3 and those of the General Court4 apply, along with other procedural rules (eg the Statute5) and the detailed case law relating to procedural matters. Part 4 – Procedure before the EU Courts deals with the most common issues and provides a streamlined presentation of the stages of procedure. Part 5 – Incidental and Ancillary Procedural Issues explains those procedural issues which emerge in a smaller number of the proceedings, such as interventions, interim measures and inadmissibility, as well as the rules on costs, which, albeit not going to the substance of the case, are very important from the point of view of practitioners.

1.1.2. Core Principles – How to Assert Rights Derived from Union Law? 1.04

Effective judicial protection and complete system of judicial avenues. The preamble to the Charter of Fundamental Rights states that the EU is based on the principle of rule of law. Its Article 47 provides that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal. The significance of this principle is further underscored by the Treaty on the EU, which foresees that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’.6 These norms are now placed at the pinnacle of the EU legal system in the Charter of Fundamental Rights and the TEU; however, their precursor was a Court case, the seminal judgment in Les Verts. In that ruling, the Court of Justice held that the European Economic Community [now the European Union] is a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty.7

1.1.2.1. Where EU Law is Breached by a Member State or a Private Party 1.05

Primacy of EU law. The Treaties and the law adopted by the EU institutions on the basis of the Treaties have primacy over the law of Member States.8 The legality of domestic legislation and practices is thus measured against the entirety of Union law, in proceedings which are either initiated by the European Commission (public enforcement of EU law) or brought by private parties against other private parties or Member State authorities before national courts (private enforcement of Union law). 3 Rules of Procedure of the Court of Justice of 25 September 2012 (OJ 2012 L 265, p. 1), as amended. 4 Rules of Procedure of the General Court of 4 March 2015 (OJ 2015 L 105, p. 1), as amended. 5 The Statute of the Court of Justice of the European Union, Protocol (No 3) annexed to the Treaties, last amended by Regulation (EU, Euratom) 2019/629 of the European Parliament and of the Council of 25 April 2019 (OJ 2019 L 111, p. 1). 6 Art 19 TEU. 7 Case C-294/83 Les Verts v Parliament [EU:C:1986:166] para 23. 8 Declaration 17 concerning primacy [of EU law], annexed to the final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007.

Core Principles 5 Public enforcement by the Commission. As the guardian of the Treaties, the Commission has the task of ensuring and overseeing the application of EU law under the control of the Court of Justice.9 In order to enforce Union law against Member States which breach EU norms, the Commission may initiate infringement proceedings (Article 258 TFEU) of its own motion as well as in response to a complaint lodged by a private party (cf Chapter 2.1). The Member State concerned may reach an amicable resolution of the dispute with the Commission and change its rules and practices. If there is no agreement, the Commission may take the case before the Court of Justice and the resulting judgment compels the Member State to remove the norms infringing EU law from its legal order, to adopt an act required by EU law or to abstain from illegal practices.

1.06

Private enforcement – the role of national courts. The primacy of EU law means that the national courts must apply provisions of EU law by giving them full effect and, where domestic law is contrary to EU law provisions, they must ensure that EU law prevails over conflicting national provisions. First, if necessary, national courts must refuse of their own motion to apply any conflicting provision of national law, and without requesting or awaiting the prior setting aside of that provision of national law by legislative or other constitutional means.10 That duty to disapply national legislation that is contrary to EU law binds not only national courts, but also all organs of the State, including administrative authorities, called upon, within the exercise of their respective powers, to apply EU law.11 Secondly, national courts have the obligation of harmonious interpretation (or consistent interpretation), that is, they have to ‘to apply national rules as far as possible in the light of the wording and purpose’ of EU norms.12 Thirdly, in accordance with the Francovich principle, national courts also have the power to give full effect to EU law provisions by holding a Member State liable for loss and damage caused to individuals as a result of breaches of Union law, for which the State can be held responsible.13 The Court of Justice and the national courts pursue a judicial dialogue within the framework of the preliminary ruling procedure. Through this, the national courts make preliminary references to the Court of Justice where they perceive that the interpretation of Union law is necessary in order to solve the case before them. The Court of Justice ensures uniform application of EU law in all Member States in its rulings by providing authoritative interpretation in response to the preliminary references (cf Chapter 2.2). In the rulings, the Court of Justice may make it evident that a national provision is incompatible with EU law, thus preliminary rulings may convince Member States to remove conflicting provisions from their legal order.14 Where domestic provisions are not manifestly contrary to EU law, a softer effect of preliminary rulings is that national courts will choose, from several interpretation options, the one that is compatible with Union law.

1.07

Direct effect. The concept of direct effect ensures that private parties have a legal avenue before national courts to assert their rights. EU law provisions having direct effect confer rights on individuals, which must be recognised and protected by national courts. Individual applicants may

1.08

9 Art 17(1) TEU. 10 See Case 106/77 Simmenthal [EU:C:1978:49] paras 17, 21 and 24; Joined Cases C-52/16 and C-113/16 SEGRO and Horváth [EU:C:2018:157] para 46. 11 Case C-378/17 Minister for Justice and Equality and Commissioner of the Garda Síochána (‘Boyle’) [EU:C:2018:979] para 38 and case law cited. 12 Case C-106/89 Marleasing [EU:C:1990:395] paras 18–19. 13 Case C-6/90 Francovich and Bonifaci [EU:C:1991:428] paras 32–35. 14 P Craig and G de Búrca, EU Law: Text, Cases and Materials (Sixth Edition, Oxford University Press, Oxford, 2015) 436.

6 Introduction – Enforcement of EU Law and Judicial Avenues thus enforce those provisions immediately in national courts.15 Treaty articles, regulations, decisions and, in some circumstances, directives have direct effect.16 A general condition for direct effect is that the provision relied on must be sufficiently certain, precise and unconditional.17 1.09

Right to invoke EU law. Furthermore, even in situations where there is no direct effect in the narrow sense of the term (for instance, where a directive concerns the horizontal legal relationship between two private parties or where the direct effect of an international agreement is excluded), directives and international agreements that have become an integral part of the EU legal order18 may be relied on before national courts by private applicants in actions brought against other private parties (as well as against national authorities). The national courts have the obligation of harmonious interpretation; they must make every effort to interpret domestic law consistently with the directive or the international agreement invoked.19

1.1.2.2. Where Union Law is Breached by an EU Institution or Body 1.10

Hierarchy of norms and norm of reference. The EU judiciary must offer appropriate protection to private parties and to Member States against unlawful conduct of EU institutions or bodies. Where the legality of an EU measure is challenged, its lawfulness must be assessed against an EU norm which is superior to it in the hierarchy of norms (the norm of reference). The constituent Treaties (that is, the TEU and the TFEU) and the Charter of Fundamental Rights are at the top of that hierarchy. The second category is formed by general principles of law, which may be used to interpret Treaty articles20 and can also serve as a norm of reference on a stand-alone basis. The third tier of the hierarchy of norms is constituted by legislative acts (Article 289 TFEU), which are illegal if found contrary to primary EU law and general principles of law. The next category is delegated acts adopted by the Commission in order to amend or supplement legislative acts on non-essential points (Article 290 TFEU), followed by implementing acts (Article 291 TFEU), which are acts of general application (as they must ensure uniform conditions for implementing binding Union acts). At the bottom of the hierarchy of norms are decisions of individual scope adopted by the institutions or bodies. The international agreements that may be relied on for the review of legality of an EU measure are placed, in the hierarchy of norms, between general principles of law and legislative acts.

1.11

Direct review and incidental review of legality. Litigants may seek direct review of the legality of an EU measure by bringing an action for annulment before the EU Courts (cf Chapter 3.1). In the case of individual applicants, however, there are limitations as regards standing. For instance,

15 P Craig and G de Búrca, EU Law: Text, Cases and Materials (Sixth Edition, Oxford University Press, Oxford, 2015) 189. 16 For a detailed analysis of the issues related to direct effect of directives, see P Craig and G de Búrca, EU Law: Text, Cases and Materials (Sixth Edition, Oxford University Press, Oxford, 2015) 185–223. Directives may have a vertical direct effect, which concerns the legal relationship between a private party and a Member State authority. However, they do not have a horizontal direct effect, which concerns the legal relationship between two private parties. 17 The origin of the case law being Case C-26/62 Van Gend en Loos [EU:C:1963:1]. For its application, see eg Case C-18/08 Foselev Sud-Ouest [EU:C:2008:647] para 11. 18 In the context of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), see Joined Cases C-300/98 and C-392/98 Parfums Christian Dior [EU:C:2000:688]. 19 In the context of a directive lacking horizontal direct effect, see Case C-106/89 Marleasing [EU:C:1990:395] paras 18–19; in the context of the TRIPS agreement not having direct effect, see Joined Cases C-300/98 and C-392/98 Parfums Christian Dior [EU:C:2000:688] para 49. 20 P Craig and G de Búrca, EU Law: Text, Cases and Materials (Sixth Edition, Oxford University Press, Oxford, 2015) 111.

Core Principles 7 if they are not individually concerned, they are not entitled to bring actions for annulment against legislative acts or acts of general application which entail further implementing measures. Because of these restrictions on admissibility, the complete system of legal remedies and procedures, as defined in the Les Verts judgment (cf 1.04), cannot be achieved through actions for annulment alone, but only with the addition of the avenues of incidental review of legality of EU measures.21 The essence of incidental review is that the applicant does not bring an action directly against the purportedly unlawful EU act (as he has no standing), but against its implementing act, which is ‘contaminated’ by the illegality of the basic act. The plea of illegality and preliminary references on validity of EU acts together form the system of incidental review in the EU judicial system.22 Where responsibility for the implementation of an EU act lies with the institutions or bodies, natural or legal persons are entitled to bring an action for annulment against the ‘contaminated’ implementing measures and to plead in support of that action, pursuant to Article 277 TFEU, the illegality of the act on which those measures were based (cf Chapter 3.7. Plea of Illegality). Where that implementation is a matter for the Member States, those persons may plead the invalidity of the basic act at issue before the national courts in cases concerning the national implementing measures and cause those courts to request a preliminary ruling from the Court of Justice on the validity of the Union act from which the alleged illegality of the measures stems (cf Chapter 3.8. Preliminary Rulings on Validity).23 There must be a judicial avenue to obtain review of legality – but only one. One of the most important practical issues in the EU system of judicial remedies is that the clearly existing right to bring an action for annulment against an EU act (the right to seek direct review of legality) precludes the possibility to seek incidental review of that act through challenging national implementing measures and asking for a preliminary ruling on validity. As it is clearly demonstrated by the TWD Textilwerke Deggendorf and Nachi cases, if an action for annulment was not brought in good time, natural or legal persons may not seek incidental review later on.24

21 Case C-294/83 Les Verts v Parliament [EU:C:1986:166] para 23. 22 See also P Iannuccelli, ‘Articolo 277 TFUE’ (in: Codice dell’Unione Europea operativo ed. by C C Gialdino, Simone, Napoli, 2012) 2005. 23 Case C-274/12 P Telefónica v Commission [EU:C:2013:852] para 29. 24 Case C-188/92 TWD Textilwerke Deggendorf [EU:C:1994:90] para 26; Case C-239/99 Nachi Europe [EU:C:2001:101] para 37.

1.12

1.2. The Court of Justice of the European Union [written by Viktor Luszcz1]

1.2.1. The Institution and its Powers 1.2.1.1. Status and History 1.13

TEU. The Court of Justice of the European Union is listed in Article 13 TEU as one of the seven institutions of the EU. As an institution, it consists of the Court of Justice, the upper-tier EU Court, and the General Court, the lower-tier EU Court. Article 19 TEU lays down the core rules relating to the EU Courts as follows: 1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed. Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. 2. The Court of Justice shall consist of one judge from each Member State. It shall be assisted by Advocates-General. The General Court shall include at least one judge per Member State. The Judges and the Advocates-General of the Court of Justice and the Judges of the General Court shall be chosen from persons whose independence is beyond doubt and who satisfy the conditions set out in Articles 253 and 254 of the Treaty on the Functioning of the European Union. They shall be appointed by common accord of the governments of the Member States for six years. Retiring Judges and Advocates-General may be reappointed.

1.14

Allocation of powers. In accordance with the principle of conferral, the Court of Justice of the European Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.2 It follows that the Court of Justice of the European Union has no general power to rule on cases brought before it, and may only act if its power to rule on a case is explicitly foreseen in a Treaty provision. The competences are laid down in the TFEU;3 their division between the Court of Justice and the General Court is set out in Subsection 1.2.1.3. below.

1.15

History. The Court of Justice of the European Union was the first to be set up among the EU institutions. It was established in 1952 as the Court of Justice of the European Coal and 1 Partner, Danubia Legal – Luszcz Law Firm. Attorney at law specialising in European and Hungarian competition and intellectual property law, member of the Budapest Bar. Previously worked 11 years as a référendaire at the General Court of the EU. 2 Art 5(2) TEU. 3 Arts 108, 218, 258, 263, 265, 267, 268, 270, 272 TFEU. In addition, Art 262 TFEU empowers the Council to grant jurisdiction to the EU Courts in regulations in the field of intellectual property rights. The General Court’s competence in this respect is thus based on Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1); Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1); and Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1) (cf para 3.529 et seq).

The Institution and its Powers 9 Steel Community. After the signing of the Rome Treaty in 1957, its name became Court of Justice of the European Communities. Due to the increased workload, in 1989, the Court of First Instance was created to deal mainly with cases brought by natural or legal persons (non-privileged applicants) against Community (now EU) institutions. The institution thus became a two-tier judiciary, both EU Courts consisting of one judge from each Member State. The next change took place after the entry into force of the Treaty of Nice (2003), which introduced new rules regarding the creation of judicial panels in certain specific areas.4 Further to this Treaty amendment, in 2004, the Council adopted a decision establishing the European Civil Service Tribunal.5 The Civil Service Tribunal was set up on 2 December 2005, whereby the levels of the EU judiciary increased from two to three. It was composed of seven judges and had the power to hear staff cases at first instance. Its decisions were subject to a right of appeal before the Court of First Instance on points of law only, which meant that the Court of First Instance was no longer the first instance court but the appeal court in staff cases. That situation was one of the reasons why the name of the Court of First Instance was changed to General Court on 1 December 2009, with the entry into force of the Treaty of Lisbon.

1.2.1.2. The Reform of the General Court and the Absorption of the Civil Service Tribunal Context. Although the main reason behind the creation of the Civil Service Tribunal was to alleviate the burden resting on the General Court, between 2000 and 2010 the number of new cases brought before the General Court more than doubled.6 It became apparent that the number of actions filed with the General Court kept growing, and that further reforms were needed to cope with the caseload.7 The Treaty of Nice allowed the creation of new ‘judicial panels’8 within the Court of Justice of the European Union, while the Treaty of Lisbon used a more explicit term, and foresaw the establishment of ‘specialised courts’ in Article 257 TFEU. A reference to those specialised courts was also made in Article 19 TEU. Another aspect was that, in 2011, the redrafting of the Agreement on a Unified Patent Court was underway following Opinion 1/09 of the Court of Justice.9 It was envisaged that EU Member States participating in the enhanced cooperation regarding the Unified Patent System would establish a separate court for patent litigation. In light of these developments, one of the proposals regarding the reform of the EU judiciary, with the aim of alleviating the workload of the General Court, was the creation of a specialised trade mark tribunal, which would have had the same status as the Civil Service Tribunal. The General Court could have devolved to that trade mark tribunal the power to hear actions brought against decisions of the EU Intellectual Property Office (EUIPO).10 The other option was to increase the number of the Judges at the General Court.11 The Council chose the second option, following a 4 Art 257 TFEU (ex Art 225a TEC). 5 Council Decision 2004/752 (EC, Euratom) of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7). 6 Report of the House of Lords, ‘Workload of the Court of Justice of the European Union: Follow-Up Report’ European Union Committee, 16th Report of Session 2012–13, para 53. 7 In 2009, the Court of Justice handed down its judgment in Case C-385/07 P Der Grüne Punkt – Duales System Deutschland v Commission [EU:C:2009:456], in which it considered that the duration of the proceedings before the General Court (5 years and 10 months) was excessive and the General Court breached the requirement that the case be dealt with within a reasonable time (Art 47 of the Charter of Fundamental Rights). 8 Art 225a TEC. 9 Opinion 1/09 Creation of a unified patent litigation system [EU:C:2011:123]. 10 Draft amendments to the Statute of the Court of Justice of the European Union and to Annex I thereto, submitted by the President of the Court of Justice of the EU to the President of the Council of the EU, p. 6 (https://curia.europa.eu/ jcms/upload/docs/application/pdf/2011-04/projet_en.pdf). 11 ibid, pp. 6–7.

1.16

10 The Court of Justice of the European Union proposal of the Court of Justice of the European Union. Reference was made to the advantage of flexibility in case management that could be attained with the enlargement of the General Court as a judicial body. Another reason was safeguarding the consistency of the case law relating to intellectual property, in respect of which it was argued that appeals against first instance judgments in trade mark cases should be heard by the same Court as the preliminary references on the interpretation of the trade mark directive.12 As regards the enlargement of the General Court, in its first proposal, the Court of Justice of the European Union recommended raising the number of Judges at the General Court by 12, from 27 to 39, by preserving the Civil Service Tribunal as a distinct entity.13 However, increasing the number of Judges by this amount seemed to be problematic from the outset, given that there would have been two Judges from some Member States, but only one from others. Given that Judges are appointed by the Council of the EU by common accord, there was a risk that keeping the right geographical balance in the General Court would cause delays in the selection and appointment procedure of Judges. 1.17

The reform. The final decision consisted in the doubling of the number of the Judges at the General Court, the absorption of the Civil Service Tribunal by the General Court and the reassignment of its Judges to the latter. This took place via the adoption and implementation of two regulations. First, Regulation 2016/119214 inserted a new Article 50a in the Statute, which provides that ‘The General Court shall exercise at first instance jurisdiction in disputes between the Union and its servants as referred to in Article 270 of the [TFEU]’ and thus retransferred this competence from the Civil Service Tribunal to the General Court. Secondly, Regulation 2015/2422 amending the Statute15 provided that the number of the Judges at the General Court be fixed at 56 at the end of a three-stage process. The latter regulation prescribes (i) the addition of 12 new posts of Judges to the General Court on 25 December 2015; (ii) the transfer of the posts of the seven Judges of the Civil Service Tribunal to the General Court on 1 September 2016; and (iii) the addition of nine new posts of Judges to the General Court on 1 September 2019. In the implementation of these regulations, the Civil Service Tribunal ceased to exist on 1 September 2016. The number of judicial posts reached 56 on 1 September 2019 and was subsequently reduced to 54 on 1 February 2020, as a result of the termination of the UK’s EU membership.

1.2.1.3. Division of Competences between the EU Courts 1.18

Article 256 TFEU offers a flexible framework for dividing competences. Article 256 TFEU (ex Article 225 TEC) contains the following provisions: 1. The General Court shall have jurisdiction to hear and determine at first instance actions or proceedings referred to in Articles 263, 265, 268, 270 and 272, with the exception of those assigned to a specialised court set up under Article 257 and those reserved in the Statute for the Court of Justice. The Statute may provide for the General Court to have jurisdiction for other classes of action or proceeding.

12 ibid, p. 8. See Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to a pproximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25), replaced by Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States r elating to trade marks (OJ 2015 L 336, p. 1). 13 Draft amendments to the Statute of the Court of Justice of the European Union and to Annex I thereto, submitted by the President of the Court of Justice of the EU to the President of the Council of the EU, p. 6 (https://curia.europa.eu/ jcms/upload/docs/application/pdf/2011-04/projet_en.pdf) pp. 9 and 13. 14 Regulation (EU, Euratom) 2016/1192 of the Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the EU and its servants (OJ 2016 L 200, p. 137). 15 Regulation (EU, Euratom) 2015/2422 of the Parliament and the Council of 16 December 2015 amending Protocol No 3 on the Statute of the Court of Justice of the European Union (OJ 2015 L 341, p. 14).

The Institution and its Powers 11 Decisions given by the General Court under this paragraph may be subject to a right of appeal to the Court of Justice on points of law only, under the conditions and within the limits laid down by the Statute. 2. The General Court shall have jurisdiction to hear and determine actions or proceedings brought against decisions of the specialised courts … 3. The General Court shall have jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267, in specific areas laid down by the Statute.

The above provisions offer a flexible framework for the allocation of competences within the Court of Justice of the European Union. Indeed, no change in the text of the Treaties is required when the Court of Justice perceives the need to reattribute jurisdiction within the institution, as such changes can be put in place by amendments of the Statute within the limits set by the TFEU.16 A major transfer of competences from the Court of Justice to the Court of First Instance (now General Court) took place in 2004 when the latter received jurisdiction over actions for annulment and actions for failure to act brought by Member States against virtually all Commission measures or omissions and some Council acts which pertain to its implementing powers.17 More recently, the incorporation of the Civil Service Tribunal into the General Court and the transfer of the jurisdiction to hear and determine staff cases at first instance to the latter also took place through amendments of the Statute (cf para 1.17 above).18 At present, there is no specialised court referred to in Articles 256(1) and 257 TFEU. Competences of the Court of Justice. Based on the provisions of the TFEU and of the Statute, the Court of Justice has the jurisdiction in the following types of actions and proceedings: –– –– –– ––

Preliminary rulings (Article 267 TFEU); Infringement actions (Article 258 TFEU); Appeals brought against decisions of the General Court (Article 256(1) TFEU); Actions for annulment (Article 263 TFEU) brought –– by EU institutions, –– by Member States in the cases specified in Article 51 of the Statute; –– Actions for failure to act (Article 265 TFEU) brought –– by EU institutions, –– by Member States in the cases specified in Article 51 of the Statute; –– Opinions on draft international agreements (Article 218(11) TFEU); –– Other special proceedings.19 16 Under Article 281 TFEU, the Statute may be amended in accordance with the ordinary legislative procedure at the request of the Court of Justice of the European Union or, if such an amendment is proposed by the Commission, after consultation of the Court. In contrast, any change in the text of the Treaties would require an intergovernmental conference, a new Treaty, and subsequent ratifications by the Member States. 17 Council Decision 2004/407/EC, Euratom of 26 April 2004 amending Articles 51 and 54 of the Protocol on the Statute of the Court of Justice (OJ 2004 L 132, p. 5). 18 Regulation (EU, Euratom) 2015/2422 of the Parliament and the Council of 16 December 2015 amending Protocol No 3 on the Statute of the Court of Justice of the European Union (OJ 2015 L 341, p. 14); Regulation (EU, Euratom) 2016/1192 of the Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the EU and its servants (OJ 2016 L 200, p. 137). See, in particular, Art 50a of the Statute inserted by the latter regulation, which provides that ‘The General Court shall exercise at first instance jurisdiction in disputes between the Union and its servants as referred to in Article 270 of the [TFEU]’. 19 See CJ RoP, Arts 201–206. These provisions also include the procedure under Art 269 TFEU, by virtue of which the Court of Justice has jurisdiction to decide on the legality of an act adopted by the European Council or by the Council pursuant to Art 7 TEU (respect of fundamental values of the EU by a Member State).

1.19

12 The Court of Justice of the European Union Cases before the Court of Justice thus belong to several types: preliminary rulings; direct actions (mostly infringement cases brought by the Commission against a Member State and actions for annulment brought by an EU institution against another); appeals; and opinions on draft international agreements (cf Section 4.1.2. Types of Proceedings). As a rule, the Court of Justice establishes the facts only where direct actions are brought before it.20 Cases brought before the Court of Justice are given a serial number preceded by C- and followed by the year. ‘C’ stands for ‘Cour de Justice’, the French name of the Court of Justice. The letter ‘P’ after the case number denotes ‘pourvoi’, meaning that the case is an appeal brought against a decision of the General Court. 1.20

Competences of the General Court. The General Court has jurisdiction to hear and determine, at first instance, the following actions: –– Actions for annulment (Article 263 TFEU) brought –– by natural or legal persons, –– by Member States in the cases specified in Article 51 of the Statute; –– Actions for failure to act (Article 265 TFEU) brought –– by natural or legal persons, –– by Member States in the cases specified in Article 51 of the Statute; –– Actions for damages brought under Articles 268 and 340 TFEU; –– Staff cases foreseen in Article 270 TFEU; –– Disputes where the jurisdiction is provided for in an arbitration clause under Article 272 TFEU; –– Intellectual property cases, that is, actions brought against decisions of EUIPO and the Community Plant Variety Office (CPVO).21 It follows that all the cases heard by the General Court are direct actions (cf para 4.15) and intellectual property cases, which are very similar to direct actions (cf para 4.374). In all types of actions falling within its jurisdiction, the General Court has to establish the facts of the case. As of September 2016, the General Court receives no more appeals (cf para 1.17). Cases brought before the General Court are given a serial number preceded by T- and followed by the year.22 ‘T’ stands for ‘Tribunal’, the French name of the General Court.

1.21

Article 51 of the Statute delineates the Courts’ respective competences regarding actions for annulment and failure to act. Article 256 TFEU makes it possible to divide the respective competences of the Courts regarding direct actions, by reserving some classes of actions for the jurisdiction of the Court of Justice ruling at first and last instance. The dividing line has shifted in the past. After its creation, the jurisdiction of the Court of First Instance (now General Court) was limited to actions brought by natural or legal persons, while all the direct actions brought by privileged applicants (Member States and EU institutions) fell within the jurisdiction of the Court of Justice. After the Treaty of Nice, in 2004, Council Decision 2004/40723 amended the Statute

20 The Court of Justice, exceptionally, establishes the facts in an appeal case when the General Court has distorted the evidence. 21 The competence of the General Court was created in regulations adopted on the basis of Art 262 TFEU. 22 GC PR, para 15. 23 Council Decision 2004/407/EC, Euratom of 26 April 2004 amending Articles 51 and 54 of the Protocol on the Statute of the Court of Justice (OJ 2004 L 132, p. 5).

The Institution and its Powers 13 and transferred jurisdiction from the Court of Justice to the Court of First Instance (now General Court) over actions for annulment and actions for failure to act brought by Member States against the Commission, the ECB24 and, in some cases, the Council.25 This division of competences mainly aimed at reserving for the jurisdiction of the Court of Justice inter-institutional disputes and actions brought by Member States which concern legislative activity. To date, no case has been brought by a Member State against the Council before the General Court. In contrast, Member States often challenge acts of the Commission before the General Court, especially in the fields of State aid, EU funding and the common agricultural policy. On 1 May 2019, with the amendment of the Statute,26 the division of competences was further nuanced. The Court of Justice obtained the competence, previously held by the General Court, to rule on actions for annulment brought by Member States against acts of the Commission adopted under Article 260(2)–(3) TFEU relating to the failure to comply with a judgment of the Court of Justice delivered in an infringement case. The simplified scheme27 of the division of competences under Article 51 of the Statute is thus the following: –– the Court of Justice has jurisdiction over actions for annulment and failure to act brought –– by an EU institution; –– by a Member State against acts of or omissions by EU institutions other than the Commission and the ECB, except: –– actions brought against acts of the Council in the fields of State aid, trade protection, implementing acts as specified in Article 51 of the Statute;28 –– by a Member State against acts of or omissions by the Commission adopted or committed in the context of Article 331(1) TFEU (enhanced cooperation); –– by a Member State against Commission acts adopted in the context of Article 260(2)–(3) TFEU relating to the failure to comply with judgments of the Court delivered in infringement cases. –– the General Court hears and determines actions for annulment and failure to act brought –– by a natural or legal person; –– by a Member State against acts of or omissions by the Commission, except: –– actions brought by a Member State against acts of or omissions by the Commission adopted or committed in the context of Article 331(1) TFEU (enhanced cooperation); –– actions for annulment brought against Commission acts adopted in the context of Article 260(2)–(3) TFEU relating to the failure to comply with judgments of the Court delivered in infringement cases; –– by a Member State against acts of the Council specified in Article 51 of the Statute (State aid, trade protection, implementing acts).

24 See eg Case T-496/11 United Kingdom v ECB [EU:T:2015:133]. 25 See Statute, Art 51(a)i). 26 Regulation (EU, Euratom) 2019/629 of the European Parliament and of the Council of 17 April 2019 amending the Statute (OJ 2019 L 111, p. 1). 27 Account taken of the cases effectively received until the time of writing. 28 Under Statute, Art 51, actions for annulment brought by Member States against three types of Council acts fall within the jurisdiction of the General Court: (i) State aid decisions taken under Art 108(2)3) TFEU; (ii) acts adopted to protect trade under Art 207 TFEU; and (iii) implementing acts adopted under Art 291(2) TFEU.

14 The Court of Justice of the European Union 1.22

Applications and documents filed with the wrong Court are transmitted. If one of the EU Courts has jurisdiction over a given case, lodging applications or other documents with the Registry of the other Court by mistake does not have any grave consequences, since such documents and applications will be immediately transmitted to the Registry of the competent Court.29

1.23

Referral to the competent Court. If the lack of jurisdiction is not detected immediately by the Registry, the Court which finds that it has no jurisdiction over the case has to refer it to the competent Court.30 The General Court may not decline jurisdiction when a case is referred to it by the Court of Justice. Such a referral does not necessarily imply a mistake by the party initiating the proceedings; cases may also be referred where jurisdiction was transferred by an amendment of the Statute after the filing of the application.31

1.24

Cases with similar object before both EU Courts. Article 54(3)–(4) of the Statute contains the following provisions: Where the Court of Justice and the General Court are seised of cases in which the same relief is sought, the same issue of interpretation is raised or the validity of the same act is called in question, the General Court may, after hearing the parties, stay the proceedings before it until such time as the Court of Justice has delivered judgment or, where the action is one brought pursuant to Article 263 [TFEU], may decline jurisdiction so as to allow the Court of Justice to rule on such actions. In the same circumstances, the Court of Justice may also decide to stay the proceedings before it; in that event, the proceedings before the General Court shall continue. Where a Member State and an institution of the Union are challenging the same act, the General Court shall decline jurisdiction so that the Court of Justice may rule on those applications.

The above provisions may be applied in practice in at least three distinct situations. First, the General Court may stay the procedure in order to await an authoritative interpretation of an EU law provision by the Court of Justice. In Ryanair, the applicant brought actions for annulment against Commission decisions refusing access to documents relating to a State aid procedure. Since the actions for annulment raised a question of interpretation identical to that raised in the Commission v Technische Glaswerke Ilmenau appeal case,32 which was at the time pending before the Court of Justice, the General Court decided to stay the procedure until the delivery of the judgment of the Court of Justice.33 Secondly, it is possible that an action for annulment is brought before the General Court against an act whose validity is also examined by the Court of Justice following a preliminary reference made by a national court, as was the case in Rosneft v Council. Rosneft was negatively affected by the restrictive measures adopted by the Council in the field of common foreign and security policy. It brought two actions for annulment against those measures before the General Court.34 The validity of the same measures was also the subject matter of a preliminary reference made by the High Court of Justice of England & Wales in a litigation between Rosneft and, inter alia, the British Treasury.35 In application of Article 54(3) of

29 Statute, Art 54(1). 30 Statute, Art 54(2). 31 Case C-418/06 P Belgium v Commission (EAGGF) [EU:C:2008:247] para 22. The action for annulment was filed by Belgium with the Court of Justice on 13 April 2004. The jurisdiction to hear and determine actions for annulment brought by Member States against the Commission was transferred to the Court of First Instance (now General Court) on 1 June 2004. The case was referred to the latter by order of the Court of Justice of 8 June 2004. 32 Case C-139/07 P Commission v Technische Glaswerke Ilmenau [EU:C:2010:376]. 33 Joined Cases T-494/08 to T-500/08 and T-509/08 Ryanair v Commission [EU:T:2010:511] para 18. 34 Case T-715/14 Rosneft and Others v Council [EU:T:2018:544]; Order of 16 July 2015 in Case T-69/15 Rosneft and Others v Council [EU:T:2015:565]. 35 C-72/15 Rosneft [EU:C:2017:236].

Structure of the Court of Justice of the European Union 15 the Statute, the General Court decided to stay the procedure until the delivery of the preliminary ruling by the Court of Justice.36 Thirdly, Article 54(3)–(4) may be applied where actions for annulment against the same act are brought in parallel before the two EU Courts. In Donnici v Parliament, Mr Donnici challenged before the General Court a decision of the European Parliament declaring his mandate as member invalid, while Italy challenged the same before the Court of Justice. The Court of Justice did not stay the case brought by Italy. Therefore, the General Court had the choice between staying the procedure until the delivery of the judgment of the Court of Justice or declining jurisdiction. After receiving the parties’ observations, it decided to decline jurisdiction in the interests of the proper administration of justice and safeguarding the rights of the defence of the applicant: Mr Donnici could not intervene in the case brought by Italy, since Article 40(2) of the Statute excludes the intervention of natural or legal persons in disputes opposing Member States and EU institutions. Therefore, as the General Court held, the only possibility to allow Mr Donnici to raise pleas in law and arguments before the Court of Justice against the decision of the Parliament was to decline jurisdiction in favour of the latter and to enable it to rule on the case.37 Upon the order of the General Court, the action brought by Mr Donnici was registered by the Court of Justice and joined with the action brought by Italy.38 There are, however, also examples where in similar situations the General Court did not decline jurisdiction but stayed the procedure before it until the delivery of the judgment of the Court of Justice. In the CELF (Coopérative d’Exportation du Livre Français) case, in the field of State aid, France and SIDE (Société internationale de diffusion et d’édition) brought parallel actions for annulment against the same Commission decision before the two Courts. The General Court stayed the procedure before it until the Court of Justice delivered its judgment, which dismissed the application of France.39 The General Court then resumed the procedure before it and annulled the decision, on the basis of pleas in law not raised by France in the parallel case.40

1.2.2. Structure of the Court of Justice of the European Union General. The Court of Justice of the European Union, as an institution, consists of the Court of Justice (the upper-tier EU Court) and the General Court (the lower-tier EU Court). The composition, structure and organisation of these two judicial bodies (the EU Courts) are examined below.

1.25

1.2.2.1. The Court of Justice (i) Composition Members: Judges and Advocates General. The Court of Justice consists of one Judge from each Member State.41 Article 251 TFEU provides that the Court of Justice is assisted by eight Advocates

36 Order of 16 July 2015 in Case T-69/15 Rosneft and Others v Council [EU:T:2015:565] para 13. 37 Order of 13 December 2007 in Case T-215/07 Donnici v Parliament [EU:T:2007:393], in particular paras 9–10. See also Order of 16 November 1998 in Case T-41/97 Antillean Rice Mills v Council [EU:T:1998:259] para 6; Order of 16 May 2003 in Case T-140/03 Forum 187 v Commission [EU:T:2003:145] para 7. 38 Joined Cases C-393/07 and C-9/08 Italy and Donnici v Parliament [EU:C:2009:275] paras 24–27. The applicants were successful and the Court of Justice annulled the contested decision. 39 Case C-332/98 France v Commission (CELF) [EU:C:2000:338]. 40 Case T-155/98 SIDE v Commission [EU:T:2002:53]. On the independent jurisdiction of the General Court, see also Case T-354/99 Kuwait Petroleum (Nederland) v Commission [EU:T:2006:137] paras 37–39. 41 Art 19(2) TEU.

1.26

16 The Court of Justice of the European Union General; however, should the Court of Justice so request, the Council, acting unanimously, may increase their number. At present, 11 Advocates General are Members of the Court of Justice, in accordance with Council Decision 2013/336/EU,42 which increased the number of Advocates General to that number with effect from 7 October 2015. 1.27

Appointment of Members. The Judges and Advocates General of the Court of Justice shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence. They are appointed by common accord of the governments of the Member States for a term of six years. Retiring Judges and Advocates General may be reappointed.43 The Treaty of Lisbon introduced new provisions regarding the appointment procedure of Members. Under Article 255 TFEU, the appointment may only take place after the delivery of an opinion on the candidates’ suitability to perform the duties of Judge and Advocate General of the Court of Justice. The opinion is drawn up by a panel set up in accordance with Article 255 TFEU.44 Furthermore, the Statute provides that half of the Judges are replaced (or reappointed) every three years,45 which means that the other half of the Judges remains in office at every partial renewal of the Court. This is an important rule from the point of view of the continued functioning of the Court and of the case management, since only those Judges who were present at the oral hearing held in a given case may participate in the deliberations and sign the judgment handed down in that case. The same rule on partial renewal applies to Advocates General as well, with them being partially replaced (or reappointed) every three years. As currently there are 11 Advocates General, the term of five and six Advocates General expires alternately every three years.46

1.28

Oath, immunity, restrictions to hold other positions. Before taking up their duties, each Judge and Advocate General shall take an oath before the Court of Justice sitting in open court to perform their duties impartially and conscientiously, and to preserve the secrecy of the deliberations of the Court.47 The Judges and Advocates General are immune from legal proceedings. After they have ceased to hold office, they continue to enjoy immunity in respect of acts performed by them in their official capacity, including words spoken or written. The Court of Justice, sitting as a full Court, may waive the immunity.48 The Members of the Court of Justice may not hold any political or administrative office. They may not engage in any other occupation, whether gainful or not, unless exemption is exceptionally granted by the Council, acting by a simple majority.49

1.29

Election of the President, the Vice-President and the First Advocate General. Immediately after the partial replacement of the Members at the Court of Justice (cf para 1.27),50 the 42 Council Decision 2013/336/EU of 25 June 2013 increasing the number of Advocates-General of the Court of Justice of the European Union (OJ 2013 L 179, p. 92). 43 Art 253 TFEU; see also Art 19(2) TEU. 44 Under Art 255 TFEU, ‘The panel shall comprise seven persons chosen from among former members of the Court of Justice and the General Court, members of national supreme courts and lawyers of recognised competence, one of whom shall be proposed by the European Parliament. The Council shall adopt a decision establishing the panel’s operating rules and a decision appointing its members. It shall act on the initiative of the President of the Court of Justice.’ The Activity Report of the Panel is available at https://curia.europa.eu/jcms/upload/docs/application/pdf/ 2018-05/5eme_rapport_dactivite_du_c255_-_en_final_-_public.pdf. 45 Statute, Art 9. 46 In accordance with Statute, Art 9. 47 Statute, Arts 2 and 8. 48 Statute, Arts 3 and 8. 49 Statute, Arts 4 and 8. 50 Statute, Art 9.

Structure of the Court of Justice of the European Union 17 Judges elect one of their number as President of the Court of Justice for a term of three years. Subsequently, they elect the Vice-President for the same term. The names of the President and Vice-President are published in the Official Journal.51 They may be re-elected for further terms of three years52 after each partial renewal of the Court. Likewise, immediately after the said partial replacement of the Members, the Advocates General elect one of their number as First Advocate General for a term of three years. The name of the First Advocate General is also published in the Official Journal.53 Registrar. The Court appoints the Registrar based on an open competition; all the Judges and Advocates General take part in the vote on candidates. The Registrar is appointed for a term of six years.54 The Registrar takes an oath before the Court of Justice to perform his duties impartially and conscientiously, and to preserve the secrecy of the deliberations of the Court of Justice.55 He may be reappointed, and the Court may decide to renew the term of office of the incumbent Registrar without launching another selection procedure.56

1.30

(ii) Structure and Organisation Formations (Chambers). The Treaty and the Statute provide that the Court of Justice shall sit in Chambers, in a Grand Chamber or as a full Court.57

1.31

Chambers of five and three Judges. The CJ RoP prescribes that the Court shall set up C hambers of five and three Judges and decide which Judges are attached to them.58 Immediately after the election of the President and Vice-President of the Court, the Judges elect the Presidents of the Chambers of five Judges for a term of three years (they may be re-elected once) and then elect the Presidents of the Chambers of three Judges for a term of one year.59 In respect of cases assigned to a Chamber of five or three Judges, the powers of the President of the Court are exercised by the President of the Chamber.60 One of the Chambers of five Judges is designated to deal with urgent preliminary ruling procedures.61 As regards the quorum, decisions of the chambers consisting of either three or five Judges are valid only if they are taken by (at least) three Judges.62 The Chamber of five Judges is the most frequent formation: in each year between 2012 and 2016, 283 to 366 judgments, orders and opinions of the Court were delivered by this type of formation. The corresponding figures for decisions handed down by Chambers of three Judges were 180 to 282 in each year during the same period.63

1.32

Grand Chamber. The Grand Chamber consists of 15 Judges. It is presided over by the President of the Court. The Vice-President of the Court and three of the Presidents of the Chambers of five Judges and other Judges shall also form part of the Grand Chamber. The President and the

1.33

51 Statute,

Art 9a; CJ RoP, Art 8. Art 9a. 53 CJ RoP, Art 14(1)–(3), introduced by the Amendments of the CJ RoP of 6 December 2019 (OJ 2019 L 316, p. 103). 54 CJ RoP, Art 18. 55 Statute, Art 10. 56 CJ RoP, Art 18. 57 Art 251 TFEU; Statute, Art 16. 58 CJ RoP, Art 11(1). 59 Statute, Art 16(1); CJ RoP, Art 12(1)–(2). 60 CJ RoP, Art 11(4). 61 CJ RoP, Arts 11(2) and 107. 62 Statute, Art 17(2). 63 2016 Annual Report of the Court of Justice of the European Union, p. 93. 52 Statute,

18 The Court of Justice of the European Union Vice-President are the only permanent members of the Grand Chamber, the other members are assigned to the Grand Chamber on a rotating basis in respect of each case.64 The Court sits in this formation when a Member State or an EU institution that is party to the proceedings so requests,65 or where it decides in other situations for this formation (usually on the proposal of the Judge-Rapporteur) by reason of the case’s importance. The quorum needed for a valid decision is 11 out of the 15 Judges.66 On average, some 40–60 judgments, orders and opinions are handed down by the Grand Chamber each year.67 1.34

Full Court. The Court sits as a full Court where it considers that a case before it is of exceptional importance and in other specific situations foreseen in the Statute.68 The quorum is 17 Judges. It is a rare formation; between 2012 and 2016, on average, less than one ruling was delivered in a year in full Court.69

1.35

Assignment of the case. As soon as possible after the document initiating proceedings has been lodged, the President of the Court designates a Judge to act as rapporteur in the case.70 Reassignment is possible if a Judge-Rapporteur is prevented from acting or if it is otherwise justified from the point of view of case management. The First Advocate General assigns each case to an Advocate General.71 Since Judges are attached to fixed Chambers of three and five Judges (cf para 1.32),72 the assignment of the case to a Judge-Rapporteur also determines which Chamber would hear the case. The Court may decide that the case be referred to the Grand Chamber, a proposal in this regard may be included in the preliminary report prepared by the Judge-Rapporteur (cf para 1.44). No Judge or Advocate General may take part in the disposal of any case in which he or she has previously taken part in any capacity. If, for some reason, a Judge or Advocate General considers that he should not take part in the judgment or examination of a particular case, he shall so inform the President of the Court. A party may not apply for a change in the formation that hears the case on the grounds that a Judge of a particular nationality sits or does not sit with the Chamber.73

1.36

Devolution of powers of the President of the Court to Presidents of Chambers. Under Article 11(4) of the CJ RoP, in respect of cases assigned to a Chamber of five or three Judges, the powers of the President of the Court of Justice are exercised by the President of the Chamber. In the other formations, that is, Grand Chamber or full Court, the President of the Court of Justice is also the President of the Chamber. Therefore, the two functions coincide.

1.37

Deliberations. The deliberations of the Court are secret. When a hearing has taken place, only those Judges who participated in that hearing may take part in the deliberations. Every Judge participating in the deliberations must state his opinion and the reasons for it. The conclusions reached by the majority of the Judges after final discussion determine the decision of the Court.74 64 CJ RoP, Art 27. 65 Statute, Art 16(2)–(3). 66 Statute, Art 17(3). 67 2016 Annual Report of the Court of Justice of the European Union, p. 93. 68 Statute, Art 16(4) lists these situations, which relate to decisions of the Court of Justice which affect the office or the pension rights and other benefits of the Ombudsman of the EU [TFEU, Art 228(2)], of a Member of the Commission [TFEU, Arts 245(2) and 247] or of a Member of the Court of Auditors [TFEU, Art 286(6)]. 69 2016 Annual Report of the Court of Justice of the European Union, p. 93. 70 CJ RoP, Art 15. 71 CJ RoP, Art 16. 72 CJ RoP, Art 28. 73 Statute, Art 18. 74 CJ RoP, Art 32.

Structure of the Court of Justice of the European Union 19 In practice, however, the Judges strive to reach consensus regarding the content of the upcoming decision; therefore, exchanges of memoranda on text proposals among the Judges are quite common, even if, at the deliberations, the draft decision has already obtained the support of the majority of the Judges. Judges participating in deliberations. The number of Judges taking part in deliberations must be uneven. Where, by reason of a Judge being prevented from acting (for instance, where his term expired), there is an even number of Judges, the most junior Judge must abstain from taking part in the deliberations unless he is the Judge-Rapporteur. In that case, the Judge immediately senior to him abstains from taking part in the deliberations.75 When the total number of Judges at the Court of Justice is even, the above rule also applies to the full Court formation.76

1.38

Designation of Judges to the Chamber where a quorum is not attained. If the quorum – three Judges in the case of Chambers of three and five Judges, 11 Judges in the case of the Grand Chamber and 17 in the case of the full Court – is not attained, the President of the Court designates one or more other Judges to the Chamber according to the list drawn up in accordance with the CJ RoP.77 If a hearing has taken place before that designation, the Court must rehear oral argument from the parties and the Opinion of the Advocate General.78 Arranging for a new hearing is, clearly, an undesirable delay from the point of view of both the parties and the Court. Therefore, the Court takes the appropriate measures as regards allocation of cases ahead of the partial replacement of the Judges that takes place every three years, and governments of Member States are also required to indicate in advance whether they propose to renew the incumbent Judge’s mandate. Importantly, in the case of the formation of five Judges, no new hearing is necessary if at least three Judges remain in office after the partial renewal of the Court, since the quorum is set at three.

1.39

Collegiate decisions. The judgments and orders issued by the Court of Justice contain the collegiate decision adopted by the Chamber that heard the case. There are no dissenting opinions, and those Judges who did not agree with its final content also sign the decision.79 This circumstance is one of the reasons why, at the deliberations phase, the Judges strive to reach consensus by amending the draft judgment or order even where it has already received the support of the majority of the Judges (cf para 1.37).

1.40

General meeting. All the Judges and Advocates General participate and have a vote at the general meeting of the Court of Justice, which usually takes place once every week. The preliminary reports prepared by the Judge-Rapporteurs are submitted to the general meeting, which decides on the proposals contained in them (for instance, regarding the measures of organisation of procedure or measures of inquiry to be adopted). The general meeting also takes decisions concerning administrative issues.80

1.41

The role of the President of the Court of Justice. The President of the Court of Justice represents both the Court of Justice as the upper-tier EU Court and the Court of Justice of the European

1.42

75 CJ

RoP, Art 33. also K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, Oxford, 2014) 17. 77 CJ RoP, Arts 27(4) and 28(2)–(3). 78 CJ RoP, Arts 34–35. 79 See also K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, Oxford, 2014) 22. 80 CJ RoP, Arts 25 and 59. 76 See

20 The Court of Justice of the European Union Union as an institution. He is entitled to state the position of the EU Courts vis-à-vis the other EU institutions and Member States in institutional matters. The President presides over the general meetings of the Members of the Court of Justice. He also conducts the oral hearings where the case is assigned to the Grand Chamber or to the full Court and presides over the deliberations of these Chambers. Moreover, the President ensures the proper functioning of the services of the Court.81 1.43

The role of the Vice-President of the Court of Justice. The Vice-President assists the President of the Court of Justice in the performance of his duties and takes the President’s place when the latter is prevented from acting. The Court adopted a formal decision as regards the powers of the President that are delegated to the Vice-President.82 Under this decision, the Vice-President takes the place of the President as regards the examination of and decision on applications to suspend the operation of any measure adopted by an EU institution and for other interim measures.83 He also rules on appeals against orders of the General Court dismissing applications for leave to intervene.84 Furthermore, the Vice-President presides over the special Chamber that decides on whether appeals filed against a judgment or order of the General Court concerning a decision of an independent Board of Appeal of the European Union Intellectual Property Office (EUIPO), the Community Plant Variety Office (CPVO), the European Chemicals Agency (ECHA) or the European Union Aviation Safety Agency (EASA) are allowed to proceed (cf 3.594).85

1.44

The role of the Judge-Rapporteur. Each case is assigned to a Judge-Rapporteur by the President of the Court of Justice as soon as possible after the document initiating proceedings has been lodged (cf para 1.35).86 The Judge-Rapporteur plays a central role in the examination of the case and the preparation of the final decision. During the written part of the procedure, the JudgeRapporteur follows the case closely and examines incidental issues, such as inadmissibility or interventions, and prepares the orders where appropriate. When the written part of the procedure is closed, the Judge-Rapporteur draws up the preliminary report (cf para 4.258 et seq), in which he sums up the facts of the case and submits observations as to its possible solution. These observations may be more detailed where the Judge-Rapporteur considers that the case raises no new legal issues and proposes to dispose of the case without an Opinion of the Advocate General. In the preliminary report, the Judge-Rapporteur also makes proposals on whether a hearing should be held, on the formation that should hear the case (a Chamber of three or five Judges, the Grand Chamber or a full Court), and on measures of organisation of procedure and measures of inquiry. The preliminary report is carefully studied by the Judges sitting with the Chamber before the hearing and is taken into account in the deliberations (cf paras 4.360–4.361). Furthermore, at the oral hearing, it is often the Judge-Rapporteur who asks the largest number of questions to the parties in order to clarify the outstanding issues. Finally, it is his responsibility to draft the final judgment or order closing the case and revise the text to accommodate the proposals of other Judges that are made during the deliberations phase.

1.45

The role of the Advocate General. Under the Treaty provisions, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned 81 CJ RoP, Art 9. 82 Decision 2012/671/EU of the Court of Justice of 23 October 2012 concerning the judicial functions of the Vice-President of the Court (OJ 2012 L 300, p. 47), adopted under CJ RoP, Art 10(3). 83 Statute, Art 39; CJ RoP, Arts 160–166. 84 Statute, Art 57. 85 Statute, Art 58; CJ RoP, Arts 170a–170b. 86 CJ RoP, Art 15.

Structure of the Court of Justice of the European Union 21 submissions on cases which require his involvement.87 These submissions are called Opinions of the Advocate General (AG Opinions). The Advocates General are not public prosecutors, nor are they subject to any authority. They are not entrusted with the defence of any particular interest in the exercise of their duties.88 The case is assigned to an Advocate General by the First Advocate General.89 Where the case raises no new point of law, the Court may decide, after hearing the Advocate General, that the case be determined without an Opinion.90 In 2018, 305 AG Opinions were delivered, while the Court of Justice completed 760 cases.91 While the main responsibility of the Advocate General is to deliver the Opinion, his involvement in the case starts at an earlier stage, as he may suggest measures of organisation of procedure and measures of inquiry. In practice, the Advocates General often make proposals as to the written and oral questions to be asked to the parties. The Advocate General in charge of the case submits the reasoned Opinion shortly after the hearing, usually within 10 weeks. Nature of the AG Opinions. The Opinion of the Advocate General brings the oral procedure to an end. It does not form part of the proceedings between the parties; rather, it opens the stage of deliberation by the Court. It is not, therefore, an opinion addressed to the Judges or to the parties which stems from an authority outside the Court; rather, it constitutes the individual reasoned opinion of a Member of the Court of Justice itself. It is thus not possible for the parties to submit observations on the Opinion of the Advocate General.92 Exceptionally, however, parties may ask for the reopening of the oral proceedings if the Opinion raises new issues on which the parties could not take a position, or if it distorts the facts or misrepresents the position of the parties. The Opinion contains a detailed analysis of the relevant factual and legal issues and a proposal for how the case should be decided by the Court. The Opinion is not binding on the Court; the latter may follow the solution proposed by the Advocate General or decide on a different outcome. In its final decision, the Court may use the entirety or some parts of the reasoning provided by the Advocate General; however, it may also base its decision on an entirely different legal analysis. In practice, the Opinion of the Advocate General is followed in a large majority of cases as to the proposed solution, and in a significant part as to the legal analysis. The AG Opinions are an important legal source from the point of view of the development of the case law,93 since there is more room in these AG Opinions for the examination of several alternative options, for revealing inconsistencies among precedents and for advocating for new solutions (including legislative ones) than in judgments, which must point towards a single decision with a streamlined reasoning. Furthermore, AG Opinions handed down in previous cases are widely relied on by the parties in their written and oral pleadings, and the Courts may well be inspired by the reasoning provided by the Advocates General in earlier AG Opinions in the cases they examine. However, AG Opinions are not precedents, so later judgments and orders do not need to be in line with earlier AG Opinions. As the General Court expressly stated in Philips, ‘the General Court, like the Court of Justice, is not bound either by the conclusions reached by the Advocates General or by the reasoning which led to those conclusions’.94

87 TFEU, Art 251. 88 Order of 4 February 2000 in Case C-17/98 Emesa Sugar [EU:C:2000:69] para 12. 89 CJ RoP, Art 16(1). 90 Statute, Art 20(5). 91 Source: InfoCuria – Case-law of the Court of Justice; 2018 Annual Report of the Court of Justice of the European Union, p. 43. 92 Order of 4 February 2000 in Case C-17/98 Emesa Sugar [EU:C:2000:69] paras 14–15 and 20. 93 K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, Oxford, 2014) 23. 94 Case T-92/13 Philips v Commission [EU:T:2015:605] para 80.

1.46

22 The Court of Justice of the European Union 1.47

The role of the Registrar. The Registrar is responsible for keeping the Registry of the Court of Justice under the authority of the President of the Court, that is, for the acceptance, transmission and custody of all documents, and for effecting service as provided for by the CJ RoP.95 The Registry is the sole point of contact between the parties and the Court until the oral hearing. The Registrar is also responsible for directing the services of the Court under the authority of the President of the Court.96

1.48

Staff. Each Judge and Advocate General of the Court has a cabinet which includes three or four legal secretaries (référendaires), who draft preliminary reports, judgments and orders (in the case of Advocates General, Opinions) under the guidance of the Member to whom the case has been assigned and (in the case of cabinets of Judges) the Chamber that hears the case. The Court of Justice of the European Union also includes several departments which assist both the Court of Justice and the General Court, such as the translation service, the research and documentation department (which is also in charge of research in national law of the Member States), as well as personnel and infrastructure departments.

1.2.2.2. The General Court (i) Composition 1.49

Members: two Judges from each Member State. Every Member of the General Court performs, as a rule, the duties of a Judge. Members of the General Court are therefore called ‘Judges’.97 As part of the reform of the General Court, the number of Judges was increased from one Judge from each Member State to two, in three stages, between 2015 and 2019 (cf para 1.17). As of 1 February 2020, the number of judicial posts at the General Court is 54. The Members of the General Court are chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to high judicial office. They are appointed by common accord of the governments of the Member States for a term of six years. Retiring Members are eligible for reappointment.98 The appointment procedure also includes the submission of an opinion on each candidate prepared by the panel provided for in Article 255 TFEU (cf para 1.27). As in the case of the Court of Justice, the membership is partially renewed every three years, the renewal affecting one half of the Judges on each occasion.99

1.50

No permanent Advocates General at the General Court. In contrast to the Court of Justice, no Advocates General are attached to the General Court. While the GC RoP make it possible to appoint a Judge not included in the formation to take the role of an Advocate General,100 this provision has not been applied in practice since 1992.101

1.51

Oath, immunity and restrictions to hold other positions. The Judges at the General Court must take an oath before assuming their duties.102 They enjoy the same immunity as Members of

95 CJ RoP, Art 20(1). 96 CJ RoP, Art 20(4). 97 GC RoP, Art 3(1)–(2). 98 Art 254(2) TFEU. 99 Statute, Arts 9 and 47. 100 GC RoP, Arts 30, 31 and 112. 101 The General Court – named Court of First Instance at the time – issued four AG Opinions, all between 1990 and 1992, the last being AG Opinion in Case T-24/90 Automec v Commission [EU:T:1992:39]. 102 GC RoP, Art 5.

Structure of the Court of Justice of the European Union 23 the Court of Justice and are subject to the same restrictions as regards taking up other posts and engaging in other professional activities (cf para 1.28). Election of the President and the Vice-President of the General Court. Immediately after the partial replacement of the General Court, which occurs every three years (cf para 1.49), the Judges elect one of their number as President of the General Court for a term of three years. The Judges then elect one of their number as Vice-President of the General Court for a term of three years. Both the President and the Vice-President may be re-elected.103

1.52

Registrar. The General Court appoints the Registrar for a term of six years after a procedure that is identical to the election of the Registrar of the Court of Justice (cf para 1.30). The term of office of Registrar of the General Court may also be renewed without a new selection procedure.104

1.53

(ii) Structure and Organisation Formations (Chambers). The General Court sits in Chambers of three or five Judges, or in a Grand Chamber.105 The case may also be heard and determined by a single Judge.106

1.54

Chambers of three and five Judges. The General Court sets up Chambers sitting with three and five Judges. It decides, on a proposal from the President of the General Court, which Judges shall be attached to the Chambers.107 Immediately after the election of the President and the Vice-President of the General Court (that is, after the partial renewal of the General Court, which occurs every three years), the Judges elect from among their number the Presidents of the Chambers sitting with three and five Judges. The Presidents of Chambers sitting with five Judges are elected for a term of three years and may be re-elected once. The Presidents of Chambers of three Judges are elected for a defined term.108 The Presidents of Chambers of three and five Judges are usually the same Members. As a practical arrangement, the basic nuclei of the General Court may be the Chambers of three Judges, to which two other Members are added from another Chamber of three Judges to form a Chamber of five Judges, or the Chambers of five Judges, in which case the President is common to two formations, composed, in addition to the President, of two pairs of the remaining four Judges. The term ‘President’ in the text of the GC RoP denotes the President of the Chamber after the assignment of a case to a Chamber109 (cf para 1.61), thus the powers of the President of the General Court relating to decisions in particular cases are exercised by the President of the Chamber after that moment, unless otherwise specified in the GC RoP. The quorum is the same as in the case of the Court of Justice, and decisions of the Chambers of three or five Judges are only valid if (at least) three Judges are sitting.110 At the General Court, the most frequent bench is the Chamber of three Judges: in the period from 2012 to 2016, between 592 and 886 judgments and orders were delivered by this formation each year. The corresponding figures for Chambers of the five Judges were 8–16 decisions each year.111

1.55

103 GC RoP, Art 9. 104 GC RoP, Art 32. 105 Art 251 TFEU; Statute, Art 16. 106 GC RoP, Art 29. 107 GC RoP, Art 13. 108 GC RoP, Art 18(1)–(4). 109 GC RoP, Art 1(2)(b). 110 GC RoP, Art 24(1). 111 2016 Annual Report of the Court of Justice of the European Union, p. 212. For a recent example, see Case T-111/15 Ryanair and Airport Marketing Services v Commission [EU:T:2018:954].

24 The Court of Justice of the European Union 1.56

Grand Chamber. The largest formation of the General Court is the Grand Chamber, which is composed of 15 Judges. The General Court decides how to designate the Judges in a decision which is published in the Official Journal.112 The President of the General Court, the Vice-President and the Presidents of Chamber are Members of the Grand Chamber, additional Judges are designated from the Chamber which started handling the case. A case may be referred to the Grand Chamber whenever the legal difficulty or the importance of the case or special circumstances so justify.113 The quorum is set at 11 Judges.114 The Grand Chamber is a rare formation: between 2012 and 2016, no judgments or orders of the General Court were handed down by this formation.115

1.57

Single Judge. Cases assigned to a Chamber sitting with three Judges may be heard and determined by the Judge-Rapporteur sitting as a single Judge where, having regard to the lack of difficulty of the questions of law or fact raised, to the limited importance of those cases and to the absence of other special circumstances, they are suitable for being so heard.116 The decision on delegation is taken by the Chamber of three Judges to which the case has been assigned.117 The GC RoP contain detailed rules on which groups of cases may not be referred to a single Judge (for instance, competition, State aid and anti-dumping cases, or actions in which the validity of an act of general application must be determined).118 Between 2012 and 2016, less than 10 orders or judgments per year were delivered by a single Judge, and they were mainly related to EU trade marks.119

1.58

Assignment of the case. As soon as possible after the action has been lodged, the President of the General Court assigns the case to a Chamber of three Judges, in accordance with the method laid down in the decision taken by the plenum in this regard.120 Under that decision, the cases are allocated to the Chambers in turn (‘tour de table’), following four separate rotas: (i) actions relating to competition, State aid or trade protection measures; (ii) intellectual property cases; (iii) staff cases; and (iv) all other cases. The President of the General Court may derogate from these rotas in order to take account of a connection between cases (for instance, when several actions for annulment are brought against the same cartel decision of the Commission) or with a view to ensuring an even spread of the workload.121 After the allocation of the case to a Chamber, the President of the Chamber proposes to the President of the General Court, in respect of each case assigned to the Chamber, the designation of a Judge to act as rapporteur. The President of the General Court decides on the proposal.122

1.59

Reassignment of the case. The GC RoP of 2015 introduced important new provisions regarding the reattribution of a case to a new Judge-Rapporteur, with the aim of facilitating case m anagement 112 GC RoP, Art 15. 113 GC RoP, Art 28(1). 114 GC RoP, Art 23(1). 115 2016 Annual Report of the Court of Justice of the European Union, p. 212. Previous examples of judgments delivered by the Grand Chamber of the Court of First Instance include Case T-69/00 FIAMM and FIAMM Technologies v Council and Commission [EU:T:2005:449] and Case T-201/04 Microsoft v Commission [EU:T:2007:289]. 116 GC RoP, Art 29(1). 117 GC RoP, Art 29(3). 118 GC RoP, Art 29(2). 119 See, eg Case T-654/14 Revolution v EUIPO (REVOLUTION) [EU:T:2016:334]; Case T-34/15 Wolf Oil v EUIPO – SCT Lubricants (CHEMPIOIL) [EU:T:2016:330]. 120 Decision of the General Court of 11 May 2016 on the Criteria for the assignment of cases to Chambers (OJ 2016 C 296, p. 4). 121 ibid, para 2. 122 GC RoP, Art 26(2).

Structure of the Court of Justice of the European Union 25 and to avoid delays in the delivery of judgments. First, the President of the General Court may reassign a case to another Judge-Rapporteur if a connection (including similarity of the subject matter) is discovered, after the initial assignment of the cases, with another case that the latter Judge is already examining. Secondly, the President of the General Court may, exceptionally, also reassign a case to a new Judge-Rapporteur in the interests of the proper administration of justice (for instance, in order to reduce the workload of a Judge-Rapporteur who is dealing with several large cases at the same time). In both situations, the reassignment takes place by a reasoned decision123 and after consulting the Judges concerned.124 Referral of a case to a larger formation. At the General Court, a case is always initially assigned to a Chamber of three Judges.125 If the legal difficulty or the importance of the case or special circumstances so justify, a case may be referred to a Chamber sitting with five Judges (also known as ‘extended composition’) or to the Grand Chamber. When a Chamber of three Judges is seised of a case, the Vice-President or the President of the General Court may, at any stage in the proceedings, either of its or his own motion or at the request of a main party, propose to the plenum that the case be referred to a larger formation, further to which the plenum decides on the referral. In practice, proposals regarding the referral of the case to a Chamber sitting with five Judges are included in the preliminary report prepared by the Judge-Rapporteur. Referral to the Grand Chamber is extremely rare.

1.60

The meaning of the term ‘President’ in the GC RoP. Under Article 1(2)(b) of the GC RoP, the term ‘President’ may refer to the following Members of the General Court: (i) in cases not yet assigned to a formation of the General Court, the President of the General Court; (ii) in cases assigned to Chambers, the President of the Chamber to which the case is assigned; (iii) in cases delegated or assigned to a single Judge, that Judge.

1.61

Deliberations. The rules on deliberations126 are the same as in the proceedings before the Court of Justice (cf paras 1.36–1.37).

1.62

Designation of Judges to the Chamber where a quorum is not attained. If, as a result of a Judge being prevented from acting, a quorum has not been attained in a Chamber sitting with three or with five Judges, the President of that Chamber designates another Judge of the same Chamber as a replacement. Since the General Court hears most cases in formations of three Judges, this rule means, in practice, that another Judge from the Chamber of five Judges takes the place of the Judge who is prevented from acting. A new hearing must be organised if the replacement happens after the hearing and a main party so requests, or if more than one Judge who took part in the original hearing must be replaced.127 The rules on replacement are most relevant around the time of the partial renewal of the General Court, since a quorum must also be attained where the term of one or several Judges in the Chamber expires.

1.63

Plenum. The plenum is a decision-making body of the General Court where all Judges are present and have a vote.128 It corresponds to the general meeting of the Court of Justice.

1.64

123 In practice, a reference is made to the reassignment in the final judgment or order closing the case, see eg Case T-132/15 IR v EUIPO – Pirelly Tyre (popchrono) [EU:T:2017:162] introductory part. 124 GC RoP, Art 27(2)–(3). See also K Andova and E von Bardeleben, ‘La refonte du règlement de procedure du Tribunal de l’Union européenne: pour une efficacité juridictionnelle renforcée’ (2015/7) Europe, étude 6, para 15. 125 Decision of the General Court of 11 May 2016 on the Criteria for the assignment of cases to Chambers (OJ 2016 C 296, p. 4) para 2. 126 GC RoP, Arts 21–22. 127 GC RoP, Art 24. 128 GC RoP, Art 43.

26 The Court of Justice of the European Union The President of the General Court, the Vice-President and the Presidents of Chamber are elected by the plenum. It decides, on the proposal of the President of the General Court, on the composition of the Chambers. It also adopts the decision regarding the criteria for the assignment of the cases (cf para 1.58)129 and decides on the referral of a case to a larger formation (cf para 1.60). Furthermore, the plenum adopts administrative decisions, and is the general forum where the Judges can discuss the development of case law and issues regarding case management on a regular basis. 1.65

Role of the President of the General Court. The President represents the General Court, and directs its judicial business and administration. He presides at the plenum and over the Grand Chamber. In cases not yet assigned to a formation of the Court, the President of the General Court may adopt the measures of organisation of procedure. The President plays a crucial role in the assignment of cases to Chambers and Judge-Rapporteurs.130 At the General Court, the power to rule on interim measures131 is exercised by the President of the General Court. He delivers the relevant orders, which numbered 38–47 in each year during the period between 2012 and 2016.132

1.66

Role of the Vice-President. The Vice-President of the General Court assists the President of the General Court in the performance of his duties and takes the President’s place when the latter is prevented from acting. The General Court may, by decision published in the Official Journal, specify the conditions under which the Vice-President takes the place of the President in the performance of his judicial duties.

1.67

Role of the Judge-Rapporteur. After being allocated to a Chamber of three Judges, the case is further assigned to a Judge-Rapporteur by the President of the General Court on proposal of the President of the Chamber.133 The Judge-Rapporteur performs the same key tasks in the examination of the case and the preparation of the final decision as in the case of proceedings before the Court of Justice (cf para 1.43). His role is even more emphasised at the General Court, since the drafting of the final decision is not preceded by an Opinion of the Advocate General. Therefore, the preliminary report (cf para 4.258 et seq), drawn up by the Judge-Rapporteur, is the sole precursor to the final decision.

1.68

Role of the Registrar. The Registrar of the General Court is responsible for the maintenance of the register of the General Court and the files of pending cases, for the acceptance, transmission, service and custody of documents, and for correspondence with the parties. He is also responsible, under the authority of the President of the General Court, for the administration of the General Court, its financial management and its accounts, and is assisted in this by the departments of the Court of Justice of the European Union.134

1.69

Staff. While the departments of the Court of Justice of the European Union work under the direction of the Registrar of the Court of Justice, they also render the same services to the General Court. In the case of the référendaires and other personnel in the cabinets of the Judges at the General Court, the appointing authority is the Registrar of the General Court.135

129 As well as other formal decisions published in the Official Journal, see GC RoP, Art 56a on the adoption of the decision regarding the conditions of use of e-Curia. 130 GC RoP, Art 10. 131 GC RoP, Art 156. 132 2016 Annual Report of the Court of Justice of the European Union, p. 212. 133 GC RoP, Art 26(1)–(2). 134 GC RoP, Art 35. 135 See Statute, Art 52.

part 2 Enforcement of EU Law against Member States and Private Parties

28

2.1. Infringement Actions [written by Milan Kristof1]

2.1.1. Overview General. The centralised enforcement provisions are the method by which the Commission provides overall supervision, or guardianship (as the ‘guardian of the Treaties’), over the EU Treaties and the rule of law in the Union. Articles of the TFEU discussed here ensure post hoc adherence to policies agreed at the political and institutional levels of the EU.2 As the Court of Justice made clear, this action (so-called ‘infringement proceedings’) is for the purpose of obtaining a declaration that the conduct of a Member State infringes Union law and of terminating that conduct; the Commission remains at liberty, if the Member State has put an end to the alleged failure, to discontinue the proceedings but such discontinuance does not constitute recognition that the contested conduct is lawful.3

The legal basis of infringement actions is essentially contained in Articles 258–260 TFEU4 (ex Articles 226–228 TEC). While preliminary rulings on interpretation may reveal that national legal provisions are inconsistent with EU law (cf para 2.69), the infringement proceedings are, in principle, the only procedure which allows the Court of Justice to measure the conduct of a Member State directly against EU law.5 The Court of Justice has the competence to hear and determine infringement actions, whereas the General Court has no power in this respect (cf paras 1.19–1.20). From a procedural point of view, at the litigation stage, infringement proceedings belong to the category of direct actions. The practical aspects of the procedure are presented and explained in Chapter 4.2. Procedure in Direct Actions, which thus complements the present chapter.

1 Référendaire, European Court of Justice. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the Court of Justice. 2 M Smith, ‘The evolution of infringement and sanction procedures’ (in: The Oxford Handbook of EU Law ed. by A Arnull and D Chalmers, Oxford University Press, Oxford, 2015) 350, 351 (to imagine these provisions simply as blunt legal instruments designed to force compliance is to underestimate the administrative and political complexity that characterise the infringement and sanction processes and the extent to which resort to these instruments is avoided wherever possible). This chapter cannot and does not seek to be exhaustive on the subject of infringement proceedings. For a detailed discussion see stand-alone publications on the subject, such as T Materne, La procédure en manquement d’Etat (Larcier, Brussels, 2012) or L Prete, Infringement Proceedings in EU Law (Wolters Kluwer, Alphen aan den Rijn, 2017). 3 Joined Cases C-15/76 and C-16/76 France v Commission (skimmed milk powder) [EU:C:1979:29] para 27. 4 There is, however, also Art 271(d) TFEU, according to which actions may be brought in the Court of Justice by the Governing Council of the ECB against national central banks. Likewise, under Art 271(a) TFEU, actions may be brought by the Board of Directors of the European Investment Bank against Member States concerning the fulfilment of their obligations under that bank’s Statute (in this connection, see Case T-361/99 Meyer v Commission and EIB [EU:T:2000:107] para 12). 5 As pointed out by K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, Oxford, 2014) 161. Aside from some special legal procedures to obtain a declaration that a Member State has failed to fulfil its obligations under EU law since Case C-26/62 Van Gend en Loos [EU:C:1963:1] paras 10–13, the Court of Justice has ruled that the preliminary ruling procedure on interpretation may also appraise a Member State’s conduct indirectly against EU law.

2.01

30 Infringement Actions 2.02

Article 258 TFEU. The main provision on infringement proceedings is clearly Article 258 TFEU, which allows the Commission to take a Member State to the Court of Justice and to obtain a ruling that it has failed to fulfil its obligations under EU law. It reads as follows: If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.

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Article 259 TFEU. While the task of bringing infringement actions lies primarily with the Commission, Member States also have the power to initiate such proceedings. In this regard, Article 259 TFEU provides as follows: A Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice of the European Union. Before a Member State brings an action against another Member State for an alleged infringement of an obligation under the Treaties, it shall bring the matter before the Commission. The Commission shall deliver a reasoned opinion after each of the States concerned has been given the opportunity to submit its own case and its observations on the other party’s case both orally and in writing. If the Commission has not delivered an opinion within three months of the date on which the matter was brought before it, the absence of such opinion shall not prevent the matter from being brought before the Court.

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Article 260 TFEU. The consequences of a successful infringement action are set out in Article 260 TFEU, which reads as follows: 1. If the Court of Justice of the European Union finds that a Member State has failed to fulfil an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of the Court. 2. If the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court after giving that State the opportunity to submit its observations. It shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Court finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it. This procedure shall be without prejudice to Article 259. 3. When the Commission brings a case before the Court pursuant to Article 258 on the grounds that the Member State concerned has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Court finds that there is an infringement it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specified by the Commission. The payment obligation shall take effect on the date set by the Court in its judgment.

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Changes brought by the Treaty of Lisbon. The wording of Articles 258 and 259 TFEU basically reproduces that of Articles 226 and 227 TEC.6 However, the Lisbon Treaty substantially amended 6 Any changes are cosmetic and relate merely to the amendments the Lisbon Treaty made to the Treaty framework as well as the allocation of jurisdiction among the EU Courts.

Defendants 31 the prescriptions of Article 228 TEC. First, it introduced important provisions on financial sanctions to motivate Member States to transpose directives adopted under a legislative procedure into their national legal order in timely fashion. This novelty is contained in Article 260(3) TFEU: where a Member State has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure, the Commission may bring an action under Article 258 TFEU and ‘may, when it deems appropriate, [directly] specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances’. Secondly, the Lisbon Treaty also simplified the pre-litigation procedure in cases where the Member State has not complied with a judgment of the Court, which established an infringement committed by that State. Under Article 260(2) TFEU, ‘If the Commission considers that the Member State … has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court after giving that State the opportunity to submit its observations’. It follows that, as compared to Article 228(2) TEC, a reasoned opinion in the pre-litigation stage of the second action is no longer necessary, the Commission merely being required to give the State an opportunity to submit observations. More generally, it must be recalled that the Lisbon Treaty abolished the pillar system: the Police and Judicial Cooperation in Criminal Matters (PJCCM) and the Common Foreign and Security Policy (CFSP) are now part of EU law in the same way as the policy areas belonging to the former Community pillar. While the Court of Justice is now competent for acts adopted in the area of PJCCM and it is possible for the Commission to launch infringement proceedings in that area, this is not the case as far as CFSP is concerned, and the competence of the Court of Justice therein is limited (cf para 2.20). Examination based on objective factors. The Court does not accept subjective factors which may be raised in a Member State’s defence, and it always reiterates that this procedure ‘affords a means of determining the exact nature of the obligations of the Member States in case of differences of interpretation’7 and is ‘based on the objective finding that a Member State has failed to fulfil its obligations under the Treaty or secondary legislation’.8

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2.1.2. Defendants Defendants – notion of the Member State. As Articles 258–259 TFEU make clear, infringement proceedings may only be brought against an individual ‘Member State’, ie an entity under international law which acceded to the Treaties governing the EU (so EEA EFTA States are not concerned by this procedure).9 The Court’s definition here is very broad: conduct of any State organ (whether federal, regional10 or local11) is, in principle, attributable to the State. Indeed, an organ includes any person or entity which has that status in accordance with the national law of the State in question. The fact that, by its conduct, such a person or entity, empowered to exercise elements of

7 Case C-7/71 Commission v France (supply agency) [EU:C:1971:121] para 49. 8 See, inter alia, Case C-71/97 Commission v Spain (nitrates water pollution) [EU:C:1998:455] para 14. It is not for the Court to consider what objectives are pursued in an action brought under Art 258 TFEU. Its role is to decide whether or not the Member State in question has failed to fulfil its obligation as alleged – see Case C-416/85 Commission v UK (VAT zero-rating) [EU:C:1988:321] para 9. 9 Which does not mean that their infringement of EEA goes unchecked: the EFTA Surveillance Authority is empowered to bring similar proceedings before the EFTA Court. 10 Case C-239/85 Commission v Belgium (toxic and dangerous waste) [EU:C:1986:457] para 13. 11 Case C-199/85 Commission v Italy (public works contracts) [EU:C:1987:115] (in relation to a commune).

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32 Infringement Actions governmental authority and acting in that capacity, infringes legal provisions, exceeds competences or contravenes instructions of his superiors does not invalidate that conclusion.12

A Member State’s failure to fulfil obligations may, in principle, be established ‘whatever the agency of that State whose action or inaction is the cause of the failure to fulfil its obligations, even in the case of a constitutionally independent institution.13 In contrast, the scope of national laws, regulations or administrative provisions must be assessed ‘in the light of the interpretation given to them by national courts’.14 2.08

Devolution of power irrelevant. The fact that a Member State has conferred on its regions the responsibility for giving effect to directives cannot have any bearing on the application of Article 258 TFEU. The Court has consistently held that a Member State cannot plead conditions existing within its own legal system in order to justify its failure to comply with obligations and time limits resulting from EU directives. While each Member State may freely allocate internal legislative powers as it sees fit, the fact remains that it alone is responsible towards the [EU] under [Article 258 TFEU] for compliance with obligations arising under [EU] law.15

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Origin of the infringement. It is not relevant whether the infringement is a result of the Member State’s choice, its negligence or technical difficulties with which it was faced.16

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All branches of State power are responsible. It is clear from the above that acts or omissions of the legislature,17 the executive, and the judiciary18 of a Member State may amount to a failure to fulfil obligations (however, an ordinary judicial error is not sufficient19).

12 Case C-334/08 Commission v Italy (EC’s own resources) [EU:C:2010:414] para 39. 13 Case C-77/69 Commission v Belgium (flat-rate transference duty on wood) [EU:C:1970:34] para 15. 14 Case C-382/92 Commission v UK (employees’ rights in transfers of undertakings) [EU:C:1994:233] para 36. 15 Case C-87/02 Commission v Italy (effects of projects on environment) [EU:C:2004:363] para 38. See also Case C-400/08 Commission v Spain (restrictions on establishment) [EU:C:2011:172], Case C-435/09 Commission v Belgium (effects of projects on environment) [EU:C:2011:176] and Case C-508/09 Commission v Italy (conservation of birds) [EU:C:2011:115]. 16 Case C-269/02 Commission v France (health and safety of workers) [EU:C:2004:387] para 14; Case C-392/06 Commission v Spain (working time of persons in transport) [EU:C:2007:376] para 8. 17 See, eg Case C-309/84 Commission v Italy (premiums for vines) [EU:C:1986:73] para 9. 18 See Case C-129/00 Commission v Italy (recovery of sums paid though not due) [EU:C:2003:656] paras 29–41. The Court held that the Italian administrative practice and judicial doctrine relating to the reimbursement of taxes imposed in violation of EU law infringed Italy’s obligations under the EC treaty. The national provision in question was in itself neutral vis-à-vis EU law. However, it was interpreted by a substantial part of the Italian judiciary (including the Supreme Court) in a way which was incompatible with EU law. Italy was thus required to modify the provision in its legislation because it had been interpreted in such a way as to make it excessively difficult for the taxpayer to exercise his right to reimbursement. In Case C-224/01 Köbler [EU:C:2003:513] and Case C-173/03 Traghetti [EU:C:2006:391], the Court of Justice ruled that a Member State is liable for the damage caused to an individual by an infringement of EU law attributable to a supreme court if the infringement is manifest (in Case C-379/10 Commission v Italy (liability of courts) [EU:C:2011:775] the Court ruled that, whilst implementing Traghetti, the Italian statute governing the civil liability of judges for causing damage to individuals by acting in breach of EU law was itself contrary to EU law: the exclusion of State liability, or the limitation of State liability to cases of intentional fault or gross negligence, was contrary to the general principle that Member States are liable for an infringement of EU law by a court whose decision is not open to appeal). In this connection, see Opinion of the Court 1/09 [EU:C:2011:123] para 87; Case C-154/08 Commission v Spain (land registrars) [EU:C:2009:695]. See the recent Case C-416/17 Commission v France (advance payment) [EU:C:2018:811], where the Court of Justice ruled that the French Conseil d’État should have referred a question to the Court for a preliminary ruling concerning the interpretation of EU law, in order to determine whether it was necessary to refuse to take into account the tax incurred by a non-resident subsidiary on the profits underlying dividends redistributed by a non-resident company. Thus, by disregarding the mechanism for the avoidance of economic double taxation, France failed to fulfil its obligations under EU law. 19 Case C-129/00 Commission v Italy (recovery of sums paid though not due) [EU:C:2003:656] para 33: where national legislation has been the subject of different relevant judicial constructions, some leading to the application of that legislation in compliance with EU law, others leading to the opposite application, it must be held that, at the very least,

Defendants 33 Example – Buy Irish. In Commission v Ireland (Buy Irish),20 the Court ruled that by organising a campaign to promote the sale and purchase of Irish products within its territory (‘Buy Irish’), Ireland had failed to fulfil its obligations under the Treaty. The decisive role in that campaign was played by the Irish Goods Council, a company limited by guarantee and not having a share capital. However, since the Irish Government appointed the members of the management committee of that council, granted it public subsidies which covered the greater part of its expenses, and defined the aims and broad outline of the campaign conducted by that institution to promote the sale and purchase of Irish products, the Irish Government could not rely on the fact that the campaign was conducted by a private company in order to escape the liability it may have under the Treaty. It is worth noting that what was at issue was neither a legislative act nor a regulatory act having mandatory legal effects.21

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Example – Volkswagen. In Commission v Germany (Volkswagen),22 in relation to legislative provisions concerning the public limited company Volkswagen (VW), the Court of Justice ruled that the ‘Volkswagen Law’ restricted the free movement of capital. In particular, by maintaining in force the provisions of the Volkswagen Law concerning the capping of voting rights at 20 per cent and the fixing of the blocking minority at 20 per cent, and the right of the federal State and the Land of Lower Saxony each to appoint two representatives to the supervisory board, the Federal Republic of Germany failed to fulfil its obligations. The Court held that

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even if, as [Germany] submits, the VW Law does no more than reproduce an agreement which should be classified as a private law contract, it must be stated that the fact that this agreement has become the subject of a Law suffices for it to be considered as a national measure for the purposes of the free movement of capital … The exercise of legislative power by the national authorities duly authorised to that end is a manifestation par excellence of State power [and] in addition … the provisions of the Law at issue can no longer be amended solely at the will of the parties to the initial agreement, since any modification requires that a new Law be voted in in accordance with the constitutional law procedures of [Germany].23

Example – custom duties of Apulia. In Commission v Italy (custom duties of Apulia),24 in its defence, Italy argued that the failure to recover the own resources results not from administrative errors attributable to the national authorities but from the fraudulent behaviour of the customs officials who acted in concert with the employees of the company involved. The inevitable consequence of such conduct is that it breaks the causal link between the administration and the harmful act, thereby making it possible to acknowledge the existence of force majeure, within the meaning of Article 17(2) of Regulation No 1150/2000.

The Court rejected that argument insofar as when they issued the illegal authorisations, the customs officials were acting in the exercise of their duties and so those acts had to be regarded

such legislation is not sufficiently clear to ensure its application in compliance with EU law. In Case C-156/04 Commission v Greece (temporary import of vehicles) [EU:C:2007:316] para 52, the Court pointed out that ‘the Commission alleges that the Greek courts lend authority to the administrative authorities’ practice, but it does not put forward any conclusive evidence in that regard. If the Commission intends to prove a failure to fulfil obligations on account of a judicial practice, the criteria established by the case law of the Court and set out in paragraph 50 of this judgment apply all the more and with particular stringency.’ 20 Case C-249/81 Commission v Ireland (Buy Irish) [EU:C:1982:402]. 21 See also Case C-325/00 Commission v Germany (quality label for produce made in Germany) [EU:C:2002:633]. 22 Case C-112/05 Commission v Germany (Volkswagen) [EU:C:2007:623]. 23 Case C-112/05 Commission v Germany (Volkswagen) [EU:C:2007:623] para 26. 24 Case C-334/08 Commission v Italy (custom duties of Apulia) [EU:C:2010:414] para 37 et seq.

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34 Infringement Actions as acts of the administration itself (illegal or not, the conduct of the national authorities had to be attributed to the Italian Republic). 2.14

Example – Coillte Teoranta. Finally, in the field of public procurement, Member States may not escape liability for the actions of contracting authorities. In Commission v Ireland (Coillte Teoranta),25 the Court pointed out that As regards the question whether Ireland may be held liable for the actions of Coillte Teoranta [Irish Forestry Board] as contracting authority, it is sufficient to state that the directives on public contract awards would be deprived of their effectiveness if the actions of a contracting authority were not imputable to the Member State concerned.26

2.1.3. Applicants 2.15

The Commission. Under Article 17 TEU, the Commission ‘shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of [EU law]. It shall oversee the application of Union law under the control of the Court.’ Therefore, it is logical that under Article 258 TFEU it should be the Commission which brings infringement proceedings against a Member State. It is solely for the Commission to determine whether it is expedient to take action against a Member State and what provisions the Member State has infringed, and to choose the time at which it will bring an action for failure to fulfil obligations; the considerations which determine that choice cannot affect the admissibility of the action.27 The Commission does not have to show that there is a specific interest in bringing an action: its function is to ensure, of its own motion and in the general interest, that the Member States give effect to EU law and to obtain a declaration of any failure to fulfil the obligations deriving therefrom with a view to bringing it to an end.28 Indeed, private individuals (or other Member States) are not entitled to bring proceedings against a refusal by the Commission to institute proceedings against a Member State for failure to fulfil its obligations29 (cf para 3.59).

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The Member States. Article 259 TFEU makes clear (cf para 2.03) that a Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court. However, first it must bring the matter before the Commission (which delivers a reasoned opinion after each of the States concerned has been given the opportunity to submit its own case and its observations on the other party’s case both orally and

25 Case C-353/96 Commission v Ireland (Coillte Teoranta) [EU:C:1998:611]. 26 Case C-353/96 Commission v Ireland (Coillte Teoranta) [EU:C:1998:611] para 23. The Court also noted that ‘it is the State which set up Coillte Teoranta [CT] and entrusted specific tasks to it, consisting principally of managing the national forests and woodland industries, but also of providing various facilities in the public interest. It is also the State which has power to appoint the principal officers of [CT] [and] the Minister’s power to give instructions to [CT], in particular requiring it to comply with State policy on forestry or to provide specified services or facilities, and the powers conferred on that Minister and the Minister for Finance in financial matters give the State the possibility of controlling [CT]’s economic activity’ (paras 37 and 38). 27 Case C-317/92 Commission v Germany (packaging of medicinal products) [EU:C:1994:212] para 4; Case C-35/96 Commission v Italy (tariffs for customs agents) [EU:C:1998:303] para 27; Case C-333/99 Commission v France (fishing quotas) [EU:C:2001:73] para 24. 28 Case C-33/04 Commission v Luxembourg (interconnection in telecommunications) [EU:C:2005:750] para 65. 29 Case C-48/65 Lütticke v Commission [EU:C:1966:8]; Case C-247/87 Star Fruit v Commission [EU:C:1989:58]; Case C-87/89 Sonito and Others v Commission [EU:C:1990:213]; Case C-29/92 Asia Motor France v Commission [EU:C:1992:264] para 21.

The Subject Matter of Infringement Proceedings 35 in writing). If the Commission has not delivered a reasoned opinion within three months of the date on which the matter was brought before it, the absence of such opinion shall not prevent the matter from being brought before the Court. It should be pointed out that this procedure is very rare with only a few cases having resulted in a judgment.30 The European Central Bank (ECB) and the European Investment Bank (EIB). Under Articles 271(a) and 271(d) TFEU, the Board of Directors of the EIB and the Governing Council of the ECB may also bring an action for failure to fulfil obligations (the former against Member States, the latter against national central banks). The Court of Auditors, however, does not enjoy such powers and must bring the matter to the Commission.31

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Individuals? As the Court has pointed out, there is no provision in the Treaties which would allow an individual to bring an action against a Member State for failure to fulfil obligations,32 be that before the Court of Justice or the General Court. What individuals must do is lodge a complaint before the Commission and/or invoke EU law before a national judge, who can follow the procedure provided for in Article 267 TFEU (preliminary rulings) (cf para 1.07, cf para 2.69).

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2.1.4. The Subject Matter of Infringement Proceedings 2.1.4.1. What was Infringed? Obligation under the Treaties. Both Articles 258 and 259 TFEU provide that the subject matter of infringement proceedings is the failure to fulfil an ‘obligation under the Treaties’. Case law shows that those terms must be interpreted broadly insofar as they cover primary and secondary EU law, all rules of non-CFSP EU law, general principles, external agreements concluded by the EU33 (including mixed agreements34), conventions between Member States and non-compliance with Court judgments.

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All rules of non-CFSP EU law. Any obligation under non-CFSP35 EU law which is binding on Member States may form the basis of a finding that a Member State failed to fulfil its ‘obligation

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30 Cases C-141/78 France v UK (fishing nets) [EU:C:1979:225]; C-388/95 Belgium v Spain (designations of origin of wines) [EU:C:2000:244]; C-145/04 Spain v UK (voting rights of Gibraltar residents) [EU:C:2006:543]; C-364/10 Hungary v Slovak Republic (President of Hungary) [EU:C:2012:630]. All but the first case were rejected by the Court. In two cases the initiating Member State withdrew the action (Cases C-58/77 Ireland v France and C-349/92 Spain v UK). In Case C-591/17 Austria v Germany (infrastructure charge for the use of motorways) [EU:C:2019:504], the Court stated an infringement of EU law. It did not follow the AG and ruled that the German vignette for the use by passenger vehicles in federal roads is contrary to EU law – it is discriminatory since the economic burden of the charge falls, de facto, solely on the drivers of vehicles registered in other Member States (see also the Opinion of AG Wahl; inter alia in relation to the Commission not intervening as amicus curia in such a case). See also Case C-457/18 Slovenia v Croatia (border arbitration ruling) [EU:C:2020:65]. 31 See C-539/09 Commission v Germany (powers of the Court of Auditors) [EU:C:2011:733] para 24 (and the Opinion of AG Trstenjak in that case [EU:C:2011:345] para 2). 32 C-49/08 Raulin v France [EU:C:2008:286] paras 9 and 10. 33 However, see C-132/09 Commission v Belgium (European Schools) [EU:C:2010:562]. The Court of Justice held that it did not have jurisdiction to rule on the action of the Commission, brought on the basis of Art 226 TEC, on the ground that Belgium had failed to fulfil its obligations under the Establishment Agreement concluded on 12 October 1962 between the Board of Governors of the European School and the Belgium Government, read in conjunction with Art 10 TEC. 34 eg Case C-239/03 Commission v France (protection of the Mediterranean Sea) [EU:C:2004:598] paras 24–31. 35 Art 275 TFEU provides that the Court of Justice shall not have jurisdiction with respect to the provisions relating to the CFSP, nor with respect to acts adopted on the basis of those provisions. However, it shall have jurisdiction to monitor compliance with Art 40 TEU and to rule on proceedings brought in accordance with the conditions laid down in Art 263(4) TFEU, reviewing the legality of decisions providing for restrictive measures against natural or legal persons

36 Infringement Actions under the Treaties’. That covers primary EU law (including protocols annexed to the Treaties36) and secondary EU law, accession treaties of new Member States37 and the Charter of Fundamental Rights38 (which, since the entry into force of TFEU, shall have ‘the same legal value as the Treaties’ under Article 6 TEU). Some exceptions that are not related to CFSP are also expressly indicated in the Treaty: Article 126(10) TFEU provides that the rights to bring actions provided for in Articles 258 and 259 TFEU may not be exercised within the framework of paragraphs 1–9 of that article.39 2.21

General principles. The breach, by Members States, of general principles of EU law amounts to an infringement of an ‘obligation under the Treaties’. First, the Court of Justice ensures observance of the principle of the protection of fundamental rights. Reasons of public interest may be invoked to justify a national measure, which is likely to obstruct the exercise of the fundamental freedoms guaranteed by the Treaty, only if the measure in question takes account of such rights.40 The Court has also held that the duty of genuine cooperation is one of general application, and does not depend either on whether the EU competence concerned is exclusive or on any right of the Member States to enter into obligations towards non-member countries.41 As for the principle of proportionality, when examining whether, for instance, a restriction on freedom of establishment is justified by overriding reasons of public interest, the Court requires the competent national authorities to show, first, that their legislation is necessary in order to attain the objective pursued, and secondly, that the legislation is in conformity with the principle of proportionality.42

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Mixed agreements. Contravening international agreements to which the EU is party may also constitute a breach of the ‘obligation under the Treaties’. In Commission v Ireland (Berne

adopted by the Council on the basis of ch 2 of Title V of TEU. Art 276 TFEU provides that, in exercising its powers regarding the provisions of chs 4 and 5 of Title V of Part Three relating to the area of freedom, security and justice, the Court of Justice of the European Union shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State, or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security. See Case C-455/14 P H v Council and Commission [EU:C:2016:569]. 36 Case C-85/85 Commission v Belgium (tax on secondary residences of EU officials) [EU:C:1986:129]; Case C-437/04 Commission v Belgium (buildings leased by the Communities) [EU:C:2007:178]. 37 See Case C-231/78 Commission v UK (restrictions on potato import) [EU:C:1979:101] (the UK failed to fulfil an obligation under the Treaty, in particular Art 30 thereof, together with the Act of Accession, by not repealing or amending before the end of 1977 the provisions of its national law which had the effect of restricting imports of potatoes); Case C-546/07 Commission v Germany (posting of workers) [EU:C:2010:25] (Germany infringed EU law by restricting to its own undertakings alone the possibility of entering into contracts with Polish undertakings in respect of work to be carried out within its territory; such a restriction was discriminatory and could not be justified). 38 See Case C-235/17 Commission v Hungary (usufruct over agricultural land) [EU:C:2019:432] (see also the Opinion of AG Saugmandsgaard Øe): the Court ruled that in cancelling the rights of usufruct over agricultural land in its territory that are held, directly or indirectly, by nationals of other Member States, Hungary failed to fulfil its obligations arising from the principle of the free movement of capital and the right to property guaranteed by the Charter. A Member State seeking to justify a restriction of a fundamental freedom under the TFEU must also ensure compliance with the fundamental rights guaranteed by the Charter. 39 Transitional provisions, which were applicable to acts adopted in the field of the PJCCM prior to the entry into force of TFEU, ceased to apply on 1 December 2014. 40 Case C-260/89 ERT [EU:C:1991:254] para 43; Case C-368/95 Familiapress [EU:C:1997:325] para 24; Case C-60/00 Carpenter [EU:C:2002:434] para 40; Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri [EU:C:2004:262] para 97; Case C-441/02 Commission v Germany (expulsion orders against EU citizens) [EU:C:2006:253] para 108. 41 Case C-266/03 Commission v Luxembourg (transport by inland waterway) [EU:C:2005:341] para 58; Case C-433/03 Commission v Germany (transport by inland waterway) [EU:C:2005:462] para 64. 42 Case C-54/05 Commission v Finland (import of vehicles) [EU:C:2007:168] para 39; Case C-297/05 Commission v Netherlands (import of vehicles – roadworthiness test) [EU:C:2007:531] para 76; Case C-438/08 Commission v Portugal (restrictions on vehicle inspection bodies) [EU:C:2009:651] para 46 et seq.

The Subject Matter of Infringement Proceedings 37 onvention), the Court of Justice ruled that by failing to obtain its adherence before 1 January C 1995 to the Berne Convention for the Protection of Literary and Artistic Works, Ireland had failed to fulfil its obligations under Article 300(7) TEC (now Article 216(2) TFEU) in conjunction with Article 5 of Protocol 28 to the EEA Agreement. The Berne Convention is a mixed agreement, insofar as it was concluded by the EU, its Member States, as well as non-member countries, and relates to an area covered in large measure by the Treaties. Ireland’s non-adherence thus amounted to a breach of Article 258 TFEU.43 Conventions between Member States. In principle, a Member State could be brought before the Court of Justice for infringing a convention concluded under the former Article 293 TEC. This has not happened so far and, since the Lisbon Treaty, the Treaties no longer mention conventions between Member States as a policy instrument of the Union; moreover, Article 293 TEC has been repealed.44

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2.1.4.2. Failure General. Under Article 258 TFEU, the Commission may initiate infringement proceedings if it considers that a Member State ‘has failed’ to fulfil an obligation under the Treaties. If the Commission’s action lodged before the Court is successful, the latter declares that the defendant Member State ‘has failed’ to fulfil the obligation. A Member State is guilty of a failure to fulfil its obligations under the Treaty regardless of the frequency or the scale of the circumstances complained of.45 The Court of Justice developed substantial case law regarding the concept of ‘failure’, an overview of which is presented below.

2.24

Failure stemming from instruments (eg laws, decrees or administrative decisions). The most obvious infringement action is the one brought by the Commission in relation to a Member State’s instruments which are contrary to EU law. The scope of national laws, regulations or administrative provisions must be assessed in the light of the interpretation given to them by national courts.46

2.25

Failure stemming from facts (eg administrative practices, general and persistent infringements, judicial practice). Infringement actions arise also in situations where a Member State’s laws are not infringing EU law per se, but where the problem lies in the interpretation given to them by the administration or by the courts.47 The case law makes clear that so far as the p ossibility

2.26

43 Case C-13/00 Commission v Ireland (Berne Convention) [EU:C:2002:184]. See also Case C-465/01 Commission v Austria (election to workers’ chambers) [EU:C:2004:530]. 44 As pointed out by K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, Oxford, 2014) 164, this does not prevent existing conventions from keeping their legal force, so the question of whether a Member State may be brought before the Court of Justice in this respect may eventually arise. See Case C-132/09 Commission v Belgium (European Schools) [EU:C:2010:562] paras 42–53 (conventions concluded by the Member States outside of what used to be Art 293 TEC cannot be enforced under Arts 258 and 259 TFEU, even if they do contribute to the attainment of the objectives of the Treaties). 45 Case C-209/89 Commission v Italy (costs of customs formalities) [EU:C:1991:139] para 19. 46 Case C-300/95 Commission v UK (liability for defective products) [EU:C:1997:255] para 37. See also C-441/17 Commission v Poland (Białowieża forest) [EU:C:2018:255]; Case C-235/17 Commission v Hungary (usufruct over agricultural land) [EU:C:2019:432]; Case C-619/18 Commission v Poland (independence of the Supreme Court) [EU:C:2019:531] (the Court ruled that the Polish legislation concerning the lowering of the retirement age of judges of the Supreme Court was contrary to EU law insofar as the measures at issue breached the principles of the irremovability of judges and judicial independence). 47 Case C-342/05 Commission v Finland (wolf hunting) [EU:C:2007:341].

38 Infringement Actions of finding that there has been a failure to fulfil obligations on the basis of the administrative practice followed in a Member State is concerned, the failure can be established only by means of sufficiently documented and detailed proof of the alleged practice. In addition, that administrative practice must be, to some degree, of a consistent and general nature. In order to find that there has been a general and consistent practice, the Commission may not rely on any presumption.48 2.27

Failure as a consequence of positive behaviour (actions). The most typical example is the adoption of national legislation which is contrary to EU law.49 Another example is when a Member State concludes an agreement with a third State with conditions which are incompatible with EU law.50

2.28

Failure as a consequence of negative behaviour (omissions). Like a positive act, a failure to act may also constitute a ‘failure’ on the part of a Member State to fulfil an obligation.51 Such inaction may reside in a failure to transpose a directive,52 to notify measures or to achieve a result imposed by an EU act. It may also consist in the existence of a factual situation which is imputable to the inaction of the Member State concerned (eg when it failed to prohibit fishing in spite of the fact that the EU-imposed quota was exhausted53). The failures to transpose a directive (cf para 2.29) and to notify measures (cf para 2.30) are examined below in more detail.

2.29

Failure to transpose a directive. The Commission contests here either the fact that a directive has not been transposed (at all) in the Member State’s legal system or the manner in which this has been done (ie the Commission considers that the transposition is not correct). Whilst legislative action on the part of each Member State is not necessarily required in order to implement a directive, it is essential for national law to guarantee that the national authorities will effectively apply the directive in full, that the legal position under national law should be sufficiently precise and clear, and that individuals are made fully aware of their rights and, where appropriate, may rely on them before the national courts.54

2.30

Failure to notify measures. An important distinction must be drawn between the failure to transpose a directive and the failure to notify measures transposing it. As explained above (cf para 2.05), after the Lisbon Treaty, under Article 260(3) TFEU, where a Member State has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative 48 Case C-441/02 Commission v Germany (expulsion orders against EU citizens) [EU:C:2006:253] paras 49, 50 and 99, and the case law cited. See also Case C-156/04 Commission v Greece (temporary import of vehicles) [EU:C:2007:316] para 50; Case C-399/17 Commission v Czech Republic (shipment of waste) [EU:C:2019:200] paras 51–54. 49 Case C-184/96 Commission v France (foie gras) [EU:C:1998:49] – a Member State which adopts legislation relating to preparations with foie gras as a base, reserving certain trade descriptions to products possessing particular qualities and without including a mutual recognition clause for products coming from other Member States and complying with the rules enacted by those States, fails to fulfil its obligations under Art 30 TEC (now Art 36 TFEU). 50 Case C-170/98 Commission v Belgium (maritime transport to Congo) [EU:C:1999:411] (the bilateral agreement with the Democratic Republic of the Congo was not adjusted so as to provide for fair, free and non-discriminatory access by EU nationals to the cargo shares due to Belgium or the agreement was not denounced by it). See also Cases C-468/98 Commission v Sweden (open skies agreement with the US) [EU:C:2002:626]. 51 Case C-31/69 Commission v Italy (refunds to exporters) [EU:C:1970:10] para 9. 52 eg Case C-512/09 Commission v Greece (batteries and accumulators) [EU:C:2010:442]. 53 Joined Cases C-418/00 and C-419/00 Commission v France (fishery resources) [EU:C:2002:263] para 61: by not provisionally prohibiting fishing by vessels flying the French flag or registered in French territory when the catches landed were deemed to have exhausted the corresponding quota, and by finally prohibiting fishing only when the quota had been considerably exceeded, the French Republic has failed to fulfil its obligations under Regulations Nos 2241/87 and 2847/93. 54 Case C-144/99 Commission v Netherlands (unfair terms in consumer contracts) [EU:C:2001:257] para 17. In this context, transposing a directive into national law does not necessarily require its provisions to be reproduced verbatim in a specific express legal rule; a general legal context may be sufficient (C-410/03 Commission v Italy [EU:C:2005:25] para 60).

The Subject Matter of Infringement Proceedings 39 procedure, the Commission may bring an action under Article 258 TFEU and ‘may [directly] specify the amount of the lump sum or penalty payment to be paid by the Member State … which it considers appropriate in the circumstances’. Once the Court finds that there is an infringement, it may impose a lump sum or penalty payment ‘not exceeding the amount specified by the Commission’. The payment obligation takes effect on the date set by the Court in its judgment. In 2011,55 the Commission announced that, in infringement cases concerning failure to transpose a legislative directive, it would usually request the Court to impose only a penalty payment. However, in 2017,56 the Commission announced that, in the light of its experience, it would adjust its practice under Article 260(3) TFEU, just as it had done in cases referred to the Court under Article 260(2) TFEU, by systematically asking the Court to impose a lump sum as well as a periodic penalty payment. Failure assessed as at the time of the end of the administrative stage. The existence of an infringement must be assessed in the light of the EU legislation in force at the close of the period prescribed by the Commission for the Member State concerned to comply with its reasoned opinion57 (cf paras 2.42–2.43). Moreover, in reply to the Member State’s argument that the contested national legislation ceased to be applied, the Court ruled that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion and that, consequently, the Court could not take account of any subsequent changes.58

2.31

2.1.4.3. Defences Invoked by Member States and the Court’s Receptiveness to them General. It is useful to point out in this section how the Court’s case law has dealt with some of the arguments commonly invoked by the Member States in defence of their laws and practices considered by the Commission to be breaching obligations under the Treaties. Some examples are provided below.59

2.32

Arguments relating to the Commission’s conduct and to the EU legal order. Member States often rely on the allegedly illegal conduct of the Commission in the administrative stage (cf para 2.35 et seq) of the infringement proceedings. They have invoked, for instance: (i) misuse of powers;60 (ii) abuse of process;61 (iii) breach of the principle of sincere cooperation;62 (iv) breach of the principle of protection of legitimate expectations;63 (v) breach of the principle of legal certainty64 by the Commission; and (vi) the lack of interest on the part of the Commission in bringing an action.65 Furthermore, Member States have also invoked more general arguments

2.33

55 See Commission Communication on the implementation of Article 260(3) of the [TFEU] (OJ 2011 C 12, p. 1). 56 See Commission Communication ‘EU law: Better results through better application’ (OJ 2017 C 18, p. 10). 57 Case C-365/97 Commission v Italy (management of waste) [EU:C:1999:544] para 32. 58 Case C-200/88 Commission v Greece [EU:C:1990:422]; Case C-105/91 Commission v Greece [EU:C:1992:441] para 21. 59 This section draws, inter alia, on the list of cases compiled by T Materne, La procédure en manquement d’Etat (Larcier, Brussels, 2012) 239 et seq (see Materne for more examples). See also S Van Raepenbusch, Droit institutionnel de l’Union européenne (Larcier, Brussels, 2016) 647 et seq. 60 eg Case C-562/07 Commission v Spain (taxation of capital gains) [EU:C:2009:614] para 25. 61 eg Case C-1/00 Commission v France (ban on British beef) [EU:C:2001:687] para 71. 62 eg Case C-407/09 Commission v Greece (sanctions – compensation to crime victims) [EU:C:2011:196] para 16. 63 eg Case C-562/07 Commission v Spain (taxation of capital gains) [EU:C:2009:614] para 19. 64 eg Case C-562/07 Commission v Spain (taxation of capital gains) [EU:C:2009:614] paras 23–24. 65 eg Joined Cases C-20/01 and C-28/01 Commission v Germany (public service contracts) [EU:C:2003:220] para 29.

40 Infringement Actions based on the EU legal order in defence of the legality of the national measures or the lack of transposition of directives criticised by the Commission, such as: (vii) the short deadline for the transposition of a directive and the directive’s imprecision;66 (viii) the direct effect and primacy of EU law;67 and (ix) the unlawfulness of the EU law68 they were allegedly breaching. These objections were as a rule unsuccessful. 2.34

Arguments relating to the Member States’ situation. Member States also seek to rely on arguments based on the situation prevailing in the Member State at issue or in other Member States. These arguments concerned: (i) a similar situation existing in another Member State;69 (ii) e xceptio non adimpleti contractus (exception of a non-performed contract);70 (iii) force majeure;71 (iv) internal and practical difficulties hindering compliance with EU law;72 (v) the de minimis character of the infringement;73 (vi) administrative fulfilment of EU law obligations in spite of non-transposition of a directive;74 (vii) lack of harmful consequences of the infringement;75 (viii) justifications based on international conventions;76 (ix) the non-application (in practice) of national law contrary to EU law;77 (x) the inexistence in a Member State of an activity covered by a directive;78 (xi) the existence of a national legal remedy;79 (xii) the absence of geographical scope of a directive;80 and (xiii) religious and ethical arguments.81

2.1.5. Pre-litigation Phase 2.35

General. The importance of the administrative stage (pre-litigation phase) must not be underestimated insofar as most infringement cases get resolved through the bilateral exchanges of letters and negotiations (which are confidential in nature) between the Commission and the Member State. Indeed, this stage serves to allow the Member State to remedy the infringement before the Commission takes it to the Court as well as for the Member State to present its defence to the complaint(s).82 Moreover, the scope of the dispute is defined in the pre-litigation procedure: in the contentious proceedings, the Court may only judge the merits of the pleas in law put forward by the Commission in the pre-litigation procedure.83

66 eg Case C-364/00 Commission v Netherlands (safety regime for fishing vessels) [EU:C:2002:282] para 7. 67 eg Case C-253/95 Commission v Germany (public service contracts) [EU:C:1996:188] para 13. 68 eg Case C-261/99 Commission v France (failure to recover illegal State aid) [EU:C:2001:179] paras 18–19. 69 eg Case C-1/00 Commission v France (ban on British beef) [EU:C:2001:687] para 75. 70 eg Case C-11/95 Commission v Belgium (television broadcasting) [EU:C:1996:316] paras 36 and 37. 71 eg Case C-70/86 Commission v Greece (delay in the payment of financial contributions) [EU:C:1987:374] para 8. 72 eg Case C-87/02 Commission v Italy (effects of projects on environment) [EU:C:2004:363] para 38. 73 eg Case C-456/05 Commission v Germany (psychotherapists admitted to practise) [EU:C:2007:755] para 22. 74 eg Case C-366/89 Commission v Italy (disposal of waste oils) [EU:C:1993:330] paras 17–18. 75 eg Case C-233/00 Commission v France (access to information on the environment) [EU:C:2003:371] para 62. 76 Case C-147/03 Commission v Austria (discriminatory access to university education) [EU:C:2005:427] paras 71 et seq. 77 Case C-522/04 Commission v Belgium (taxation and contributions to pension schemes) [EU:C:2007:405] para 70. 78 Case C-343/08 Commission v Czech Republic (retirement pension system) [EU:C:2010:14] para 39 et seq. 79 Case C-508/03 Commission v UK (effects of projects on environment) [EU:C:2006:287] para 71. 80 Case C-441/00 Commission v UK (trans-European high-speed rail system) [EU:C:2002:318] para 15. 81 Case C-165/08 Commission v Poland (prohibition of marketing GMO seeds) [EU:C:2009:473] para 57 et seq. 82 Case C-1/00 Commission v France (ban on British beef) [EU:C:2001:687] para 53; Case C-362/01 Commission v Ireland (practice of lawyers) [EU:C:2002:739] para 18. 83 Case C-158/94 Commission v Italy (monopoly on electricity import and export) [EU:C:1997:500] paras 59–60.

Pre-litigation Phase 41

2.1.5.1. Difference between Proceedings Initiated by the Commission and those Initiated by a Member State Bringing the matter before the Commission. Under Article 258 TFEU, the Commission initiates the infringement proceedings, while under Article 259 TFEU, a ‘Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice’ (cf paras 2.02–2.03). However, there is an obligatory pre-litigation administrative procedure also in the latter situation: before a Member State brings an action against another Member State for an alleged infringement of an obligation under the Treaties, it must bring the matter before the Commission. The Commission will deliver a reasoned opinion after each of the States has been given the opportunity to submit its own case and its observations on the other party’s case both orally and in writing. If the Commission has not delivered an opinion within three months, the absence of such opinion shall not prevent the matter from being brought before the Court.

2.36

2.1.5.2. Administrative Stage Informal stage – EU Pilot. In practice, before the infringement proceedings are formally opened, there is often an informal stage: its aim is for the Commission to start the investigation and obtain the information necessary for the sending of the ‘letter of formal notice’.84 In the past, the informal stage consisted essentially in a letter sent by the Commission services to the Member State, but that has been replaced in principle by the EU Pilot system.85 Even though that system is often used, the infringement proceedings may also start directly with the letter of formal notice.

2.37

(i) Letter of Formal Notice Start of the formal procedure. The infringement proceedings only properly start when the Commission sends the letter of formal notice to the Member State in question.86 The Member State’s ‘observations’ mentioned in Article 258 TFEU are submitted in reply to the letter of formal notice. This stage is important since it is a precondition for the proper conduct of the infringement proceedings.

2.38

Functions of the letter of formal notice. The purpose of the letter of formal notice is, first, to delimit the subject matter of the dispute and to indicate to the Member State, which is invited to submit observations, the factors enabling it to prepare its defence, and secondly, to enable the Member State to comply before proceedings are brought before the Court.87 In order for a letter of formal notice to be issued, a prior failure by the Member State concerned to fulfil an obligation

2.39

84 Case C-293/05 Commission v Italy (waste-water treatment) [EU:C:2006:750] para 22. 85 ‘EU Pilot’ is a scheme designed to resolve compliance problems without having to resort to infringement proceedings: the Commission and national governments use an online database and communication tool to share information on the details of particular cases. This then gives governments a chance to remedy any breaches voluntarily, by responding relatively quickly to the Commission’s concerns. The idea behind EU Pilot is to speed up the infringement proceedings. See http://ec.europa.eu/internal_market/scoreboard/performance_by_governance_tool/eu_pilot/index_en.htm. Note that the EU Pilot scheme covers not only single market legislation, but also other areas. At the same time, some single market instruments and sectors are covered by comparable systems that had already been established before the launch of EU Pilot. 86 Case C-293/05 Commission v Italy (waste-water treatment) [EU:C:2006:750] para 23. 87 Order of 13 September 2000 in Case C-341/97 Commission v Netherlands (dinoflagellates) [EU:C:2000:434] para 17.

42 Infringement Actions owed by it must be alleged,88 for instance, a national measure which only exists in a draft form at the moment of the issuance of the letter of formal notice cannot substantiate the Commission’s claim that there is an infringement of an obligation under the Treaties. The opportunity for the Member State concerned to submit its observations to the letter of formal notice, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the FEU Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations.89 The Commission may send supplementary letters of formal notice (for instance, in order to add new complaints or modify pre-existing ones90). (ii) Reasoned Opinion 2.40

Functions of the reasoned opinion. If the Member State has not replied to the letter of formal notice, or once the Commission has analysed that State’s observations submitted in response to the letter of formal notice but the dispute is not resolved at this preliminary stage, the Commission may issue a reasoned opinion. The latter prescribes the time within which the Member State must put an end to the infringement. The reasoned opinion defines the subject matter of the proceedings and it cannot subsequently be extended. The possibility for the State concerned to present its observations is an essential guarantee envisaged by the Treaty, and is an essential procedural requirement for the proper conduct of the procedure for a finding that a Member State has failed to fulfil its obligations.91

2.41

Connection between the letter of formal notice and the reasoned opinion. The letter of formal notice might consist in an initial brief summary of the complaints, set out in general terms. This is because the reasoned opinion which follows should state those complaints with greater precision by means of a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question had failed to fulfil its obligations under EU law.92 That said, the complaints contained in the reasoned opinion must remain in the framework of those set out in the letter of formal notice, since raising entirely new complaints at the stage of the reasoned opinion would deprive the Member State of the possibility to submit its observations on them before the issue of the reasoned opinion. In Commission v Italy (conservation of wild birds), in its supplementary reasoned opinion, the Commission formulated a new complaint against Italy which was not formulated in its letter of formal notice. That amendment of the complaints, despite the generality of terms which is admissible for a letter of formal notice, went beyond a mere clarification of the first initial brief summary of complaints. Therefore, the Court of Justice ruled that the second complaint could not be examined in the infringement proceedings at issue.93

2.42

Time limit open for the Member State to comply. Under Article 258 TFEU, ‘If the State concerned does not comply with the [reasoned] opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice’. In order to determine whether the

88 Order of 13 September 2000 in Case C-341/97 Commission v Netherlands (dinoflagellates) [EU:C:2000:434] para 18. In that case, the Court ruled that, at the time when a detailed opinion under Directive 83/189 was delivered, the Member State to which it was addressed could not have infringed EU law, since the national measure existed only in draft form (para 19). The infringement action brought by the Commission was thus dismissed as inadmissible. 89 Case C-211/81 Commission v Denmark (energy meters) [EU:C:1982:437] para 9. 90 See also Case C-458/10 Commission v Luxembourg (water for human consumption) [EU:C:2011:385] para 14. 91 Case C-152/89 Commission v Luxembourg (excise duty on beer) [EU:C:1991:272] para 9. 92 Case C-159/99 Commission v Italy (conservation of wild birds) [EU:C:2001:278] para 50. 93 Case C-159/99 Commission v Italy (conservation of wild birds) [EU:C:2001:278] para 54.

Time Limits 43 period allowed for the State is reasonable, account must be taken of all the circumstances of the case. Thus, very short periods may be justified in particular circumstances, especially where there is an urgent need to remedy a breach or where the Member State concerned is fully aware of the Commission’s views long before the procedure starts.94 The Commission’s Secretariat-General normally does not give a prolongation of the deadline to respond to the reasoned opinion, except in a few situations.95 Only the Commission can do so, and the Court may not give a new deadline that is different to the one established by the Commission. The end of the period laid down in the reasoned opinion as the reference period for assessing the existence of an infringement. The question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes.96 The expiry of that period marks the end of the administrative stage of the infringement proceedings, and the Commission may then decide whether to bring an action before the Court of Justice.

2.43

2.1.6. Time Limits No specific time limit to bring an action, but the pre-litigation phase cannot be excessively long. Once the deadline defined in the reasoned opinion expires, the Commission may bring an infringement action before the Court of Justice. Under the settled case law, the rules of Article 258 TFEU must be applied without any obligation on the Commission to act within a specific period, and it is for the Commission to choose when it will bring an action for failure to fulfil obligations before the Court; the considerations which determine its choice of time cannot affect the admissibility of the action.97 The Commission is not obliged to act within a specified period. While it is true that the excessive duration of the pre-litigation procedure is capable of constituting a defect rendering the action inadmissible, it is clear from the case law that such a conclusion is inevitable only where the conduct of the Commission has made it difficult to refute its arguments, thus infringing the Member State’s rights of defence. It is for the latter to provide evidence of such a difficulty.98 Irrespective of the time of lodging the application, the reference date for assessing whether there has been a failure to fulfil obligations under Article 258 TFEU is the date of expiry of the period prescribed in the reasoned opinion issued under that provision (cf paras 2.42–2.43).99

94 Case C-328/96 Commission v Austria (public works contracts) [EU:C:1999:526] para 51. 95 See the situations compiled by T Materne, La procédure en manquement d’Etat (Larcier, Brussels, 2012) 105. See also p. 106 in relation to situations where the Member State replies belatedly. 96 Case C-186/09 Commission v UK (equal treatment between men and women) [EU:C:2010:60] para 10. 97 Case C-350/08 Commission v Lithuania (biosimilar medicines) [EU:C:2010:642] paras 33–38. The Court held that a period of 11 months that elapsed between the expiry of the deadline set in the reasoned opinion and the lodging of the action before the Court was not excessive in the circumstances of that case and the Commission did not breach the principle of sound administration in this regard. 98 Case C-96/89 Commission v Netherlands (reduced levy for manioc from Thailand) [EU:C:1991:213] paras 15–16 (the Court considered that the 5 years that had lapsed between the first letter of the Commission and the lodging of the action was not excessive in the circumstances of the case at issue); Case C-207/97 Commission v Belgium (water pollution) [EU:C:1999:17] paras 24–25; Case C-546/07 Commission v Germany (posting of workers) [EU:C:2010:25] para 22. 99 Case C-119/04 Commission v Italy (sanctions – foreign-language assistants) [EU:C:2006:489] para 27.

2.44

44 Infringement Actions

2.1.7. Litigation Phase 2.45

Lodging the application. The procedure before the Court of Justice starts with the lodging of an action by the Commission under Article 258 TFEU, or by a Member State under Article 259 TFEU. Infringement actions belong to the category of direct actions (cf Chapter 4.2. Procedure in Direct Actions).

2.1.7.1. Formal and Substantive Requirements as to the Application 2.46

General. Under Article 120 of the CJ RoP and the related case law, an application must state the subject matter of the proceedings and a summary of the pleas in law on which the application is based (including, where appropriate, information on the nature of any evidence offered in support), and that statement must be sufficiently clear and precise to enable the defendant to prepare a defence and the Court to rule on the application. It follows that the essential points of law and fact on which an action is based must be indicated coherently and intelligibly in the application itself and that the heads of claim must be set out unambiguously so that the Court does not rule ultra petita or, indeed, fail to rule on a complaint.100 (These requirements are examined in detail in the context of all direct actions in Section 4.2.2. Application.)

2.47

Unclear or imprecise action or heads of claim. Where the heads of claim as formulated in the application are ambiguous and do not enable the Court to identify clearly and precisely the misconduct which the Commission imputes to the Member State, the action is bound to be inadmissible.101 In this context, the Court may of its own motion examine whether the action as a whole satisfies the conditions laid down in Article 258 TFEU for bringing an action for failure to fulfil obligations.102

2.1.7.2. Connection with the Pre-litigation Phase 2.48

Admissibility. The subject matter of an application under Article 258 TFEU is circumscribed by the pre-litigation procedure (administrative procedure) provided for by that article, and the Commission’s reasoned opinion and the application to the Court must therefore be based on the same objections.103 However, this requirement cannot go so far as to mean that in every case the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject matter of the proceedings has not been extended or altered, but simply limited. In other words, the Commission may not extend its complaint to new provisions of a directive or the Treaties: where the Commission did not mention at all those provisions as being the object of an infringement alleged by the Commission at the stage of the pre-litigation procedure, the complaint alleging an infringement of those provisions before the Court is inadmissible.104 Conversely, it is clearly possible for the Commission to limit the subject matter of the proceedings at the stage of the action before the Court.105 The correspondence

100 Case

C-475/07 Commission v Poland (electricity tax) [EU:C:2009:86] para 43 and the case law cited. C-195/04 Commission v Finland (public supply contract for catering equipment) [EU:C:2007:248] para 25 et seq. 102 Case C-524/10 Commission v Portugal (VAT – common flat-rate scheme for farmers) [EU:C:2012:129] para 64. 103 Case C-490/04 Commission v Germany (contribution to the national paid leave fund) [EU:C:2007:430] para 36. 104 Case C-160/08 Commission v Germany (public emergency services) [EU:C:2010:230] paras 45–48. 105 Case C-134/10 Commission v Belgium (criteria for awarding ‘must-carry’ status) [EU:C:2011:117] paras 23–24. 101 Case

Litigation Phase 45 between the letter of formal notice and the reasoned opinion is also relevant. Where the Commission formulates new complaints in the (supplementary) reasoned opinion not contained in the letter of formal notice, the Court may not examine the substance of those new complaints (cf para 2.41). Where national legislation changes. While the Commission’s reasoned opinion and its action must be based on identical grounds for complaint, that requirement cannot go so far as to make it necessary that in every event the national provisions mentioned in the reasoned opinion and in the application should be completely identical. In particular, where national legislation is altered during the pre-litigation procedure, the action may relate to provisions of national law which are not the same as those referred to in the reasoned opinion.106 Where a change in the legislation occurred between those two phases in the procedure, it is sufficient that the system established by the legislation contested in the pre-litigation procedure has as a whole been maintained by the new measures which were adopted by the Member State after the issue of the reasoned opinion and have been challenged in the application.107 This rule ensures that Member States are not able to thwart the objectives of the infringement proceedings by replacing, during those proceedings, the contested rules with measures having identical effects.108 Another issue is the expiry of national measures. In reply to the Member States’ argument that the contested legislation ceased to be applied (after the end of the period laid down in the reasoned opinion), the Court ruled that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of that period (cf para 2.43) and that, consequently, the Court cannot take account of any subsequent changes.109 On the other hand, if, by reason of changes in the national legislation, the contested national rules cease to have any legal effect before the expiry of the period laid down in the reasoned opinion (cf para 2.43), the action will be dismissed as inadmissible.110 In this regard, the Court may examine of its own motion whether the conditions imposed by Article 258 TFEU for the bringing of an action for failure to fulfil obligations are satisfied.111

2.49

Where EU legislation changes. The existence of a failure to fulfil obligations must be assessed in the light of the EU legislation in force at the close of the period prescribed by the Commission for the Member State concerned to comply with its reasoned opinion (cf para 2.43).112 However, although the claims as stated in the application cannot as a rule be extended beyond the infringements alleged in the operative part of the reasoned opinion and in the letter of formal notice, the fact nevertheless remains that the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the original version of an EU measure, subsequently amended or repealed, and which were maintained in force under the provisions of a new EU measure. Conversely, the subject matter of the dispute cannot be extended to obligations

2.50

106 Case C-203/03 Commission v Austria (employment of women in mining) [EU:C:2005:76] paras 29–31. See also Case C-85/11 Commission v Ireland (single taxable person for VAT) [EU:C:2013:217] para 17. For examples of the application of those rules see Case C-199/04 Commission v UK (effects of projects on environment) [EU:C:2007:72] paras 20 et seq; Opinion of AG Wathelet in Case C-503/14 Commission v Portugal (taxation on capital gains) [EU:C:2016:335] point 30 et seq. 107 Case C-417/02 Commission v Greece (architects’ diplomas) [EU:C:2004:503] para 17. 108 See Case C-203/03 Commission v Austria (employment of women in mining) [EU:C:2005:76] para 31. 109 Case C-200/88 Commission v Greece (fishery information) [EU:C:1990:422]; Case C-105/91 Commission v Greece (taxation of private cars) [EU:C:1992:441] para 21. 110 Case C-362/90 Commission v Italy (public supply contracts) [EU:C:1992:158] para 8; Case C-525/03 Commission v Italy (aerial forest firefighting) [EU:C:2005:648] para 15. 111 Case C-525/03 Commission v Italy (aerial forest firefighting) [EU:C:2005:648] para 8. 112 Case C-61/94 Commission v Germany (International Dairy Arrangement) [EU:C:1996:313] para 42; Case C-416/07 Commission v Greece (protection of animals) [EU:C:2009:528] para 27.

46 Infringement Actions arising under new provisions which do not correspond to those arising under the original version of the measure concerned, for otherwise it would constitute a breach of the essential procedural requirements of infringement proceedings.113

2.1.7.3. Evidence 2.51

Burden of proof. As for the burden of proof, the principle is that it is incumbent upon the Commission to prove the infringement alleged by providing the Court with the evidence necessary to enable it to establish that the obligation has not been fulfilled, without being able to rely on any presumption (of law) for those purposes.114 In this context, the scope of national laws, regulations or administrative provisions must be assessed in the light of the interpretation given to them by national courts.115 It is only once the Commission has produced sufficient evidence of the failure to fulfil obligations that the State has to adduce its counter-arguments.116 Moreover, the burden of proof borne by the Commission in an action for failure to fulfil obligations must be determined according to the types of obligations which directives impose on the Member States and therefore in the results which must be achieved by them.117 A finding that there has been a failure to fulfil obligations on the basis of the administrative practice followed in a Member State involves production by the Commission of sufficiently documented and detailed proof of the alleged practice: it must be apparent from such proof that the administrative practice is, to some degree, of a consistent and general nature, and the Commission may not rely on any presumption for that purpose.118 If a Member State seeks to rely on the existence of exceptional circumstances justifying a derogation (allowed by EU law), the burden of proving their actual existence lies on the State seeking to rely on those circumstances.119

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Member States must assist the Commission in gathering information. In this connection, the Member States are under a duty, by virtue of Article 4(3) TEU,120 to facilitate the achievement of the Commission’s tasks, which consist in particular, in accordance with Article 17(1) TEU, in ensuring that the measures taken by the institutions pursuant to the Treaty are applied.121 Thus, the Member States are required to cooperate in good faith with the inquiries of the Commission pursuant to Articles 258–260 TFEU and to provide the Commission with all the information requested for that purpose.122

113 Case C-365/97 Commission v Italy (management of waste) [EU:C:1999:544] para 36; Case C-363/00 Commission v Italy (EC’s own resources) [EU:C:2003:335] para 22; Case C-416/07 Commission v Greece (protection of animals) [EU:C:2009:528] para 28. 114 Case C-297/08 Commission v Italy (waste management) [EU:C:2010:115] para 101 et seq. 115 Case C-300/95 Commission v UK (liability for defective products) [EU:C:1997:255] para 37. 116 Case C-272/86 Commission v Greece (restrictions on trade in olive oil) [EU:C:1988:433] para 21. 117 See Case C-60/01 Commission v France (air pollution) [EU:C:2002:383] para 25. 118 Case C-489/06 Commission v Greece (hospital supplies) [EU:C:2009:165] para 48. 119 Case C-157/06 Commission v Italy (award of public contracts without publication) [EU:C:2008:530] para 23. 120 On infringement proceedings brought in relation to that provision as a kind of liability action against Member States, see Opinion of AG Bobek in Case C-391/17 Commission v UK (importations from OCTs) [EU:C:2019:97]; Opinion of AG Bobek in Case C-395/17 Commission v the Netherlands (importations from OCTs) [EU:C:2019:98]. In relation to this provision and the issue of ‘past infringements’, see also Case C-620/16 Commission v Germany (vote by Germany against the EU position in the OTIF) [EU:C:2019:256] (and the Opinion of AG Szpunar). The Court ruled that Germany, by having, at a session of the Intergovernmental Organisation for International Carriage by Rail (OTIF) Revision Committee, voted against the EU position laid down in a Council Decision as regards certain amendments to the Convention Concerning International Carriage by Rail, and having publicly opposed that position and the arrangements for the exercise of voting rights provided for therein, failed to fulfil its obligations under that decision and Art 4(3) TEU. 121 Case C-494/01 Commission v Ireland (waste management) [EU:C:2005:250] para 197. 122 Case C-65/91 Commission v Greece (restrictions on imports from non-member countries) [EU:C:1992:388] para 14.

Result of the Proceedings 47

2.1.8. Result of the Proceedings 2.1.8.1. Legal Force of the Judgment Declaring the Infringement The duty of the Member State to comply. According to Article 260(1) TFEU, if the Court finds that a Member State has failed to fulfil an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment. Therefore, the judgment is purely declaratory: the Court cannot order the Member State to take specific measures (eg it cannot, in the context of infringement proceedings, rule on pleas which seek an order that the Member State pay default interest).123 However, the effect of EU law, declared as res judicata in respect of the Member State at issue, is a prohibition having the full force of law on the competent national authorities against applying a national rule recognised as incompatible with the Treaty and, if the circumstances so require, an obligation on them to take all appropriate measures to enable EU law to be fully applied. Moreover, the Court may give indications to the Member State how best to conform to EU law, notably by suggesting less restrictive measures in accordance with the principle of proportionality. Next, Article 260 TFEU does not confer any power on the Court to grant a period of time for compliance with its judgments.124 However, under Article 279 TFEU, the Court may prescribe any necessary interim measures and order125 the Member State to suspend the measure(s) at issue for the duration of the infringement proceedings.126

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2.1.8.2. Limitation of Temporal Effects General. Exceptionally, under the general principle of legal certainty, the Court may be moved to restrict, for any person concerned, the opportunity of relying upon a provision which it has interpreted, with a view to calling into question legal relations established in good faith.127 However, it has taken such a step only in certain specific circumstances.128 The Court made clear that, to the extent that judgments delivered under Article 258 TFEU may have the same effects as preliminary rulings delivered under Article 267 TFEU, considerations of legal certainty might, exceptionally, make it necessary to limit their temporal effects.129

123 Case C-104/02 Commission v Germany (procedures for collecting import duties) [EU:C:2005:219] para 48 et seq. 124 Case C-473/93 Commission v Luxembourg (employment in the public service) [EU:C:1996:263] para 52. 125 It is generally accepted that, in this interlocutory stage, the Court may issue an order requiring a Member State to do something, whereas that is not possible in the main action (judgment being merely declaratory). See, eg K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, Oxford, 2014) 571. 126 See Order of 17 December 2018 in Case C-619/18 R Commission v Poland (independence of the Supreme Court) [EU:C:2018:1021], ruling that Poland must immediately suspend the application of the provisions of national legislation relating to the lowering of the retirement age for Supreme Court judges – the order applying with retroactive effect, to the judges of the Supreme Court concerned by those provisions (see n 46 above for the main case). See also Order of 27 July 2017 in Case C-441/17 R Commission v Poland (Białowieża forest) [EU:C:2017:877], ruling that Poland must immediately cease its active forest management operations in the Białowieża Forest, except in exceptional cases where they are strictly necessary to ensure public safety – if Poland is found to have infringed this order, the Court will order it to pay to the Commission a penalty payment of at least €100 000 per day. Poland was also ordered to send to the Commission, no later than 15 days after notification of the order, details of all measures that it has adopted in order to comply fully, detailing, with reasons, the active forest management operations that it intends to continue because they are necessary to ensure public safety. See literature on the lack of means of enforcement for interim measures as a gap in the Treaties: C W A Timmermans, ‘La sanction des infractions au droit communautaire – Rapport communautaire’ (in: FIDE Report 1992, p. 26); L Prete, Infringement Proceedings in EU Law (Kluwer, Alphen aan den Rijn, 2017) 396–397. 127 Case C-104/98 Buchner and Others [EU:C:2000:276] para 39. 128 Case C-359/97 Commission v UK (access to roads on payment of a toll) [EU:C:2000:426] para 91. 129 In Case C-387/05 Commission v Italy (duty-free import of dual-use material) [EU:C:2009:781] para 59 (in casu the Court ruled this was not justified).

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48 Infringement Actions

2.1.8.3. State Liability 2.55

Compliance after deadline – liability for damages subsists. The subject matter of infringement proceedings under Article 258 TFEU is determined in the Commission’s reasoned opinion and, even where the default has been remedied after the time limit prescribed in the reasoned opinion for the Member State to comply (cf para 2.43), there is still an interest in pursuing the action. That interest may, in particular, be to establish the basis of liability which a Member State may incur, as a result of its default, vis-à-vis other Member States, the EU or private parties to whom the infringement caused damage.130 This may, however, only happen in the case of a sufficiently serious breach of EU law (cf para 3.438).

2.1.9. Sanctions 2.1.9.1. Article 260(2) TFEU 2.56

Lump sum or penalty payment where the Member State fails to comply with the judgment. Under Article 260(2) TFEU, if the Commission considers that the Member State concerned has not taken the necessary measures to comply with a judgment in which the Court established an infringement under Article 258 TFEU, it may bring the case before the Court after giving that State the opportunity to submit its observations. The Commission must specify the amount of the lump sum or penalty payment to be paid by the Member State which it considers appropriate in the circumstances. In this regard, the Court held that the question of whether or not the Member State concerned has complied with a previous judgment of the Court is subjected to a judicial procedure in which political considerations are irrelevant. It is in performance of its judicial function that the Court assesses the extent to which the situation prevailing in the Member State in question complies with the initial judgment and, where appropriate, assesses the seriousness of a persisting breach of obligations. It follows … the appropriateness of imposing a financial penalty and the choice of the penalty most suited to the circumstances of the case can be appraised only in the light of the findings made by the Court in the judgment to be delivered under Article 260(2) TFEU and therefore fall outside the political sphere.131

2.57

Objectives pursued. The procedure laid down in Article 260(2) TFEU (cf para 2.04) has the objective of inducing a defaulting Member State to comply with a judgment establishing a breach of obligations and thereby of ensuring that EU law is in fact applied. The measures provided for by that provision, namely a lump sum and a penalty payment, are both intended to achieve this objective. Application of each of those measures depends on their respective ability to meet the objective pursued according to the circumstances of the case. On the one hand, the imposition of a periodic penalty payment (with recurring obligation to pay for each new period until the Member State complies with the judgment) seems particularly suited to inducing a Member State to put an end as soon as possible to a breach of obligations which, in the absence of such a measure, would tend to persist. On the other hand, the imposition of a lump sum (the payment of a single amount) is based more on an assessment of the effects on public and private

130 Case C-249/88 Commission v Belgium (price of pharmaceutical products) [EU:C:1991:121] para 41 and the case law cited. 131 Case C-304/02 Commission v France (sanctions – conservation of fishery resources) [EU:C:2005:444] paras 88 and 90.

Sanctions 49 interests of the failure of the Member State concerned to comply with its obligations, in particular where the breach has persisted for a long period since the judgment which initially established it. Recourse to both types of penalty provided for in Article 260(2) TFEU is possible (cf para 2.61), in particular where the breach of obligations both has continued for a long period and is inclined to persist.132 The procedure has been modified by the Lisbon Treaty (cf para 2.05). Article 260(2) versus Article 258 TFEU. Under Article 260(2) TFEU, the lump sum or penalty is set in a second judgment concerning the same infringement,133 on the grounds that the Member State has not complied with the first judgment in which the infringement was established. The procedure laid down in Article 260(2) TFEU, similarly to the one under Article 258 TFEU, is based on the objective finding that a Member State has failed to fulfil its obligations.134 The Commission must provide the Court with the information necessary to determine the extent to which the Member State had complied with the judgment establishing the failure to fulfil obligations.135

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2.1.9.2. Article 260(3) TFEU No notification of transposition of directives – sanctions may be requested in the first infringement action. Since the Lisbon Treaty, under Article 260(3) TFEU,136 when the Commission brings a case before the Court pursuant to Article 258 on the grounds that the Member State concerned has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure, it may, when it deems it appropriate, specify the amount of the financial penalty (lump sum or penalty payment) to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Court finds that there is an infringement, it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specified by the Commission. The payment obligation shall take effect on the date set by the Court in its judgment. It is important to note that, through this mechanism, the Court of Justice may directly impose sanctions already in the first case brought under Article 258 TFEU concerning a given infringement by the Member State. Conversely, where it applies Article 260(2) TFEU, the sanctions may only be imposed in a second case, once the Court has already stated in a first case that the Member State committed a given infringement of EU law.

2.59

Lack of transposition of legislative directives. In spite of its ambiguous wording, the proceedings foreseen in Article 260(3) TFEU should not be limited to the absence of notification per se, but should also apply to the absence of transposition.137 The Commission adopted a communication on the application of Article 260(3) TFEU:138 in exercising this discretionary power, the

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132 Case C-304/02 Commission v France (sanctions – conservation of fishery resources) [EU:C:2005:444] para 80 et seq. 133 See, eg Case C-119/04 Commission v Italy (sanctions – foreign-language assistants) [EU:C:2006:489]. 134 Case C-304/02 Commission v France (sanctions – conservation of fishery resources) [EU:C:2005:444] para 44. 135 Case C-457/07 Commission v Portugal (sanctions – approval procedure for construction products) [EU:C:2009:531] para 97. See also paras 66–68. 136 At the time of writing there was no judgment of the Court on the interpretation of this provision yet, since the numerous cases brought by the Commission were resolved between it and the Member State before judgment could be delivered, but see the different approaches and the discussion in the AG Opinions: AG Wathelet (C-320/13 Commission v Poland [EU:C:2014:2441], case withdrawn after the Opinion), AG Tanchev (C-569/17 Commission v Spain [EU:C:2019:271], the Commission withdrew the case after the Opinion, considering that Spain passed a law that allowed Spain to fulfil its obligations). 137 This is clear from the Travaux préparatoires, as explained in M Wathelet and J Wildemeersch, Contentieux européen (Larcier, Brussels, 2014) 180. 138 Communication from the Commission – Implementation of Article 260(3) [TFEU] (OJ 2011 C 12, p. 1).

50 Infringement Actions Commission considers that the Article 260(3) instrument should be used as a matter of principle in all cases of failure to fulfil an obligation covered by this provision, which concerns the transposition of directives adopted under a legislative procedure. The Commission has decided that Article 260(3) cannot be used when non-legislative directives are not transposed. The penalty payment which the Commission will propose pursuant to Article 260(3) will be calculated by means of the same method used for referrals to the Court in line with Article 260(2), as set out in points 14–18 of the 2005 Communication.139

2.1.9.3. Decision to Impose a Lump Sum and a Penalty Payment (When ‘Or’ Means ‘And’) 2.61

Cumulative imposition of a lump sum and a periodic penalty payment. As pointed out in para 2.30 above, the Commission now systematically asks the Court to impose a lump sum as well as a periodic penalty payment.140 The Court imposed both sanctions cumulatively for the first time in the 2005 judgment in Commission v France (sanctions – conservation of fishery resources) (whereas the Commission was not seeking the imposition of the penalty payment).141 First, the Court pointed out in that judgment that, while the imposition of a periodic penalty payment seems particularly suited to inducing a Member State to put an end as soon as possible to a breach of obligations which, in the absence of such a measure, would tend to persist, the imposition of a lump sum is based more on an assessment of the effects on public and private interests of the failure of the Member State concerned to comply with its obligations, in particular where the breach has persisted for a long period since the judgment which initially established it. Thus, the Court held that its interpretation (that recourse to both types of penalty is possible) cannot be countered by reference to the use in Article 228(2) EC [now Article 260(2) TFEU] of the conjunction ‘or’ to link the financial penalties capable of being imposed … that conjunction may, linguistically, have an alternative or a cumulative sense and must therefore be read in the context in which it is used. In light of the objective pursued by Article 228 EC, the conjunction ‘or’ in Article 228(2) EC must be understood as being used in a cumulative sense.142

The wording of this sentence, which is now in Article 260(2) TFEU, has not been modified by the Lisbon Treaty. 2.62

The Court’s discretion in quantifying the sanction. Moreover, while it is clear that a penalty payment is likely to encourage the defaulting Member State to put an end as soon as possible to the breach that has been established, it should be remembered that, in the context of Article 260(2) TFEU, the Commission’s suggestions cannot bind the Court and are only a useful point of reference. In exercising its discretion, it is for the Court to set the penalty payment or the lump sum so that it is appropriate to the circumstances and proportionate both to the breach that has

139 Commission communication on the application of Article 228 [EC] (SEC(2005) 1658). 140 Commission Communication ‘EU Law: Better Results through Better Application’ (OJ 2017 C 18, p. 10). See also criticism by AG Mazak in his Opinion in Case C-121/07 Commission v France (sanctions – GMOs) [EU:C:2008:320] point 74 and by AG Bot in his Opinion in Case C-369/07 Commission v Greece (sanctions – Olympic Airways) [EU:C:2009:51] point 85. 141 Case C-304/02 Commission v France (sanctions – conservation of fishery resources) [EU:C:2005:444]. See also Case C-109/08 Commission v Greece (sanctions – national rules applicable to computer games) [EU:C:2009:346]; Case C-369/07 Commission v Greece (sanctions – Olympic Airways) [EU:C:2009:428]; C-496/09 Commission v Italy (sanctions – aid to promote employment) [EU:C:2011:740]; Case C-610/10 Commission v Spain (sanctions – aid to Magefesa) [EU:C:2012:781]. 142 Case C-304/02 Commission v France (sanctions – conservation of fishery resources) [EU:C:2005:444] para 80 et seq.

Sanctions 51 been established and to the ability to pay of the Member State concerned.143 In C ommission v France (sanctions – conservation of fishery resources), the Court of Justice, first, changed the frequency of the periodic penalty payment (raising it from one day to six months) but kept the amount requested by the Commission, and secondly, added a lump sum, which had not at all been requested by the Commission in its heads of claim.144 In the context of Article 260(3), where the Court of Justice may impose a lump sum or a penalty payment already in the first judgment establishing the infringement, the amount of the sanctions cannot exceed that requested by the Commission (cf para 2.04).

143 Case C-304/02 Commission v France (sanctions – conservation of fishery resources) [EU:C:2005:444] para 103 and the case law cited. 144 Case C-304/02 Commission v France (sanctions – conservation of fishery resources) [EU:C:2005:444] paras 103–116.

2.2. Preliminary Rulings on Interpretation [written by Alexandre Geulette1]

2.2.1. Overview 2.63

Notion. Differences between courts of the Member States as to the interpretation of EU law could put in jeopardy the unity of the EU legal order and undermine the requirement of legal certainty. Thus, when a national court, in a case it has to decide, entertains doubts as to the interpretation of the applicable EU law, it may stay its proceedings and seek guidance from the Court of Justice, by means of a procedure which allows the said national court to request a preliminary ruling on interpretation of EU law. To that effect, Article 267 TFEU, which has been qualified by the Court of Justice in plenum as ‘the keystone of the judicial system established by the Treaties’,2 institutes direct cooperation between the former and national courts, which is based on a dialogue initiated by the national court where it considers that a preliminary reference is appropriate and necessary. When giving its preliminary ruling, the Court of Justice does not rule on the outcome of the case; the latter has to be decided by the national court that hears the case. In particular, the Court of Justice does not apply EU law to the facts of a case, nor does it interpret national law. Instead, it merely provides mandatory guidance on the interpretation of EU law. The interpretative ruling is always given by the Court of Justice provided that it has jurisdiction to hear the request and that the latter is admissible. Such a ruling has an erga omnes and, in principle, ex tunc effect. It is worth noting that the preliminary ruling mechanism has been essential to the shaping of the EU legal order, and it was in response to requests for interpretation that the Court of Justice has established a number of fundamental principles of EU law, such as direct effect and primacy,3 as well as the principle of State liability for the infringement of EU law.4 From a statistical point of view, references for preliminary rulings currently represent the main activity of the Court of Justice. Thus, of the 849 cases brought before the Court in 2018, the number of requests for preliminary rulings amounted to 568, the urgent preliminary proceeding having been granted for 12 such requests.5 The rules of procedure adopted by the Court of Justice in 20126 reflect this state of affairs, by giving a central place to the procedural provisions governing such references.7

1 Référendaire, European Court of Justice. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the Court of Justice. 2 Opinion 2/13 of 18 December 2014 [EU:C:2014:2454] para 198; Case C-614/14 Ognyanov [EU:C:2016:514] para 15; Case C-284/16 Achmea [EU:C:2018:15] para 37. 3 See, in particular, Case C-26/62 van Gend & Loos [EU:C:1963:1]; Case C-6/64 Costa [EU:C:1964:66]; Case C-106/77 Simmenthal [EU:C:1978:49]. 4 Joined Cases C-6/90 and C-9/90 Francovich and Others [EU:C:1991:428]; Joined Cases C-46/93 and C-48/93 Brasserie du pêcheur and Factortame [EU:C:1996:79]. 5 See the 2018 Annual Report of the Court of Justice of the European Union, p. 138. It should be noted that this figure comprises both requests for preliminary rulings on interpretation and the much less frequent requests for preliminary rulings on the validity of EU law (cf Chapter 3.8. Preliminary Rulings on Validity). 6 Rules of Procedure of the Court of Justice of 25 September 2012 (OJ 2012 L 265, p. 1), as amended (CJ RoP). 7 CJ RoP, Title III (Arts 93–118).

Overview 53 Purpose. The purpose of the jurisdiction of the Court of Justice to provide preliminary rulings on interpretation is twofold. On the one hand, it is designed to ensure the uniform interpretation and application of EU law by the national courts. Given the decentralised application of EU law by national bodies, it appeared necessary to ensure that EU law is applied uniformly throughout the Union. In order to achieve this aim of uniformity and to give EU law its full effect within the framework of the judicial systems of the Member States, Article 267 TFEU gives national courts the power, and, in certain circumstances, foresees an obligation for them, to make a reference to the Court of Justice once they consider, of their own motion or at the request of the parties, that the substance of the dispute before them involves a question of interpretation of EU law. In response to the reference, in its preliminary ruling, the Court of Justice provides mandatory guidance on such interpretation, bearing in mind the aim pursued by the author of the act as well as the legal traditions of Member States. On the other hand, the preliminary ruling mechanism serves as a means of indirect control of the fulfilment by Member States of their obligations under EU law. Thus, where a court or tribunal of a Member State faces an issue of compatibility of national provisions with EU law, it may also seek guidance from the Court of Justice. In providing such guidance, the latter, while never declaring a national law incompatible with EU law, takes account of the features of the national provisions applicable to the case at hand and qualifies those features as compatible or not compatible with EU law. It is then for the national court to draw the consequences from the ruling of the Court of Justice and, if necessary, to refuse to apply the rule of national law which is contrary to EU law (cf para 1.07).

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Article 19(3)(b) TEU and Article 267 TFEU. Under Article 19(3)(b) TEU and Article 267 TFEU, the Court of Justice has jurisdiction to give preliminary rulings on the interpretation of EU law and on the validity of acts adopted by the institutions, bodies, offices or agencies of the EU. While Article 19(3)(b) merely states that the Court of Justice shall ‘give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions’, Article 267 TFEU, which confers on the Court of Justice a general jurisdiction in that regard, reads as follows:

2.65

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.

Other Treaty provisions. The vast majority of requests for preliminary rulings are based on Article 267 TFEU. Other provisions (Treaty-based or contained in conventions and protocols concluded outside the framework of the Treaties) have also conferred jurisdiction to the Court of Justice in specific areas. These include Article 41 of the Treaty establishing the European Coal and

2.66

54 Preliminary Rulings on Interpretation Steel Community (ECSC), which expired on 23 July 2002,8 as well as a number of conventions entered into by Member States and specifically giving the Court of Justice jurisdiction to provide preliminary rulings on the interpretation of their provisions.9 On the other hand, some Treaty provisions also limit the jurisdiction of the Court of Justice to provide preliminary rulings. Thus, Article 275 TFEU and Article 10 of Protocol (No 36) on Transitional Provisions of the Treaty of Lisbon lay down exceptions to or temporary restrictions on the jurisdiction of the Court of Justice.10 2.67

The General Court has not yet been given jurisdiction to give preliminary rulings. While Article 256(3) TFEU provides that the General Court has jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267 TFEU in specific areas laid down by the Statute, the Statute does not in fact specify any such areas. Thus, although instituted by the Nice Treaty,11 no such jurisdiction has yet been conferred upon the General Court.12

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Changes brought by the Lisbon Treaty. The Lisbon Treaty has brought significant changes to the preliminary ruling procedure.13 First, the jurisdiction of the Court of Justice to give preliminary rulings has been extended to the whole of EU law, unless provided otherwise by the Treaties.14 On the one hand, with the disappearance of the pillar structure introduced by the Treaty of Maastricht, the Court of Justice has acquired jurisdiction to give preliminary rulings in the areas of freedom, security and justice.15 With respect to visas, asylum, immigration and other policies 8 Art 41 of the ECSC Treaty provided that the Court of Justice had exclusive jurisdiction to rule on the validity of acts of the High Authority or the Council. Even though this provision did not refer to rulings on interpretation, the Court of Justice held, in Case C-284/82 Acciaierie e Ferriere Busseni v Commission [EU:C:1984:47] para 14, that ‘the appraisal of the validity of a measure necessarily presupposes its interpretation’ and that it would be contrary to the objectives and the coherence of the Treaties if the Court of Justice were to have no power to ensure that the rules deriving from the ECSC Treaty were given a uniform interpretation. 9 These include the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters – Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1975 L 204, p. 28), supplanted in the EU by Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), which itself has been repealed by Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (OJ 2012 L 351, p. 1); the Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980 (OJ 1980 L 266. p. 1), replaced by Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177. p. 6); and the 1992 Agreement between the Community, its Members States and the EFTA States on a European Economic Area (EEA) (OJ 1994 L 1, p. 3). For a list of those conventions and protocols, see K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, Oxford, 2014) 715–716. 10 Art 35 of the EU Treaty, which remained in force for five years after the entry into force of the Lisbon Treaty (ie until 1 December 2014) pursuant to Art 10(1) of Protocol 36 to the Treaty of Lisbon on transitional provisions, conferred jurisdiction to the Court of Justice, subject to certain limitations, to give preliminary rulings in police and judicial cooperation in criminal matters. Under Art 275 TFEU, the Court of Justice has no jurisdiction with respect to the provisions relating to the common foreign and security policy, nor with respect to acts adopted on the basis of those provisions. 11 Art 225(3) of the Nice Treaty. 12 For an application, see Order of 15 May 2017 in Case T-899/16 Double ‘W’ Enterprises v Spain [EU:T:2017:356]. 13 In that regard, see P Van Nuffel, ‘Prejudiciële vragen aan het Hof van Justitie van de Europese Unie: leidraad voor de rechstpraktijk na het Verdrag van Lissabo’ (2009–2010) Rechtskundig Weekblad 1154–1177; R Barents, ‘The Court of Justice after the Treaty of Lisbon’ (2010) Common Market Law Review 709. 14 In this regard, Art 19(3)(b) TEU. Arts 35 and 46 of the pre-Lisbon EU Treaty and Art 68 TEC, which limited said jurisdiction, have been repealed. Thus, since 1 December 2009, the Court of Justice has jurisdiction to hear and determine a reference for a preliminary ruling from a court against whose decisions there is a judicial remedy under national law even where the reference was lodged prior to that date (Order of 24 March 2011 in Case C-344/09 Bengtsson [EU:C:2011:174] paras 27–33). 15 Before the Lisbon Treaty, Art 35 of the EU Treaty contained provisions limiting the jurisdiction on the Court of Justice to give preliminary rulings within the framework of Title VI (police and judicial cooperation in criminal matters). Under Art 68(1) of the EC Treaty, Art 234 thereof was only applicable where a question on the interpretation of Title IV (visas, asylum, immigration and other policies related to free movement of persons) or of acts of the institutions based on

Overview 55 related to free movement of persons, any court or tribunal (and no longer only those against whose decisions there is no judicial remedy) may refer a question to the Court of Justice. In respect of acts of the EU in the field of police cooperation and judicial cooperation in criminal matters, the jurisdiction of the Court of Justice has become binding (following a five-year transitional period expired on 1 December 201416) and is no longer subject to a declaration by each Member State recognising such jurisdiction. On the other hand, pursuant to Article 24 TEU, the common foreign and security policy area still falls outside the jurisdiction of the Court of Justice, with the exception, as far as preliminary rulings are concerned, relating to the enforcement of the prohibition contained in Article 40 TEU.17 Secondly, Article 267 TFEU extends the jurisdiction of the Court of Justice to the TEU.18 Such jurisdiction has also been extended to acts of the European Council, which has acquired the status of EU institution,19 as well as to acts of all EU bodies, offices and agencies. Thirdly, the jurisdiction of the Court of Justice has been extended to the Charter of Fundamental Rights of the European Union, which has the same legal value as the Treaties.20 Fourthly, Article 267 TFEU now explicitly provides that if a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court shall act with the minimum of delay.21 Public and private enforcement of Union law – relationship between preliminary rulings on interpretation and infringement actions. The circumstance that Articles 258 and 259 TFEU (infringement actions) allow the Commission or a Member State to bring proceedings against another Member State for failing to fulfil its obligations under the Treaties does not prevent private individuals from taking action against a Member State for the same breach before national courts. On the contrary, in van Gend & Loos,22 and several times since,23 the Court of Justice stressed that the vigilance of individuals concerned to protect their rights amounts to an effective

this title was raised in a case pending before a court or a tribunal of a Member State against whose decisions there is no judicial remedy under national law. Art 68(2) TEC provided that the Court of Justice did not have jurisdiction to rule on any measure or decision taken pursuant to Art 62(1) TEC (border checks) relating to the maintenance of law and order and the safeguarding of internal security. Under Art 68(3) TEC, the Council, the Commission or a Member State could request the Court of Justice to give a ruling on a question of interpretation of Title IV or of acts of the institutions based on this title. It should, however, be noted that Protocol 21 on the Position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice provides that no decision of the Court of Justice interpreting provisions of Title V of Part Three of the TFEU shall be binding upon or applicable in the UK or Ireland. The European Council, at its meeting of 29–30 October 2009, agreed to extend Protocol 21 to the Czech Republic in the next accession treaty (Doc 15265/09 CONCL 3). 16 Art 10(1) of Protocol 36 on transitional provisions (cf para 2.65). 17 According to Art 40 TEU, the implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences in other areas, providing for a safeguard against the temptation to substitute the legislative and other procedures with intergovernmental decision-making. See R Barents, ‘The Court of Justice after the Treaty of Lisbon’ (2010) Common Market Law Review 718. 18 Art 234 TEC established jurisdiction for the Court of Justice to interpret ‘this Treaty’, ie the EC Treaty, whereas the FEU Treaty gives jurisdiction to the Court of Justice to interpret ‘the Treaties’ (cf para 2.94). 19 Art 13(1) TEU. 20 Art 6(1) TEU (cf para 2.94). 21 This change in the wording of Art 234 of the EC Treaty implicitly refers to the urgent preliminary procedure, in effect since 1 March 2008 (Decision 2008/79/EC, Euratom, OJ 2008 L 24, p. 42), which applies to the area of freedom, security and justice. According to the 2018 Annual Report of the Court of Justice of the European Union (p. 134), while the average duration of a preliminary ruling procedure in 2018 was 16 months, urgent preliminary procedures were treated, on average, in 3.1 months. 22 Case C-26/62 van Gend & Loos [EU:C:1963:1]. 23 Joined Cases C-142/80 and C-143/80 Essevi and Salengo [EU:C:1981:121] para 17; Case C-172/82 Syndicat national des fabricants raffineurs d’huile de graissage and Others [EU:C:1983:69] para 8; Case C-393/98 Gomes Valente [EU:C:2001:109] paras 18–19; Case C-445/06 Danske Slagterier [EU:C:2009:178] para 67.

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56 Preliminary Rulings on Interpretation supervision in addition to the supervision entrusted by Articles 258 and 259 TFEU to the diligence of the Commission and of the Member States (cf paras 1.06–1.07 on public and private enforcement of Union law). 2.70

Relationship between preliminary rulings on interpretation, actions for failure to act and actions for damages. The Treaty makes no provision for a request for a preliminary ruling by which a national court asks the Court of Justice to rule that an institution has failed to act. Consequently, judicial review of an alleged failure to act can be exercised only by the EU Courts, pursuant to Article 265 TFEU.24 Furthermore, the determination of the EU’s liability under Article 340 TFEU (action for damages) falls within the jurisdiction of the Court of Justice and lies outside that of any national court.25

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Structure of this chapter. The structure of this chapter follows the progress of a hypothetical case from a national court to the Court of Justice, and starts with the decision (discretionary or, if it is a court of last instance, mandatory) of said national court to submit a request for a preliminary ruling on interpretation to the Court of Justice (Section 2.2.2. Decision to Request a Preliminary Ruling). The jurisdiction of the Court of Justice to provide a response to the referring court is then examined. Indeed, pursuant to Article 267 TFEU, the Court of Justice only has jurisdiction to give preliminary rulings on the interpretation of the Treaties and on the interpretation of acts of the institutions, bodies, offices or agencies of the Union. Therefore, as a matter of principle, the Court of Justice does not have jurisdiction to provide interpretative rulings on national law or international law (unless the latter has become an integral part of the EU legal order). Furthermore, the Court of Justice does not have jurisdiction to give a binding ruling on the facts of the case to be decided by a national court (Section 2.2.3. Jurisdiction of the Court of Justice – Subject Matter of the Question Referred). Once the Court of Justice has ascertained that it has jurisdiction to hear a case, it will verify whether the request for a preliminary ruling is admissible. Indeed, there may be a number of grounds, which have been gradually defined by the Court of Justice in its case law,26 which prevent the Court from examining the request which has been submitted to it. A first set of inadmissibility grounds, which is derived from the wording of Article 267 TFEU, concerns the features of the referring body, which, for the reference to be admissible, must qualify as a ‘court or tribunal of a Member State’, within the meaning of Article 267(2) TFEU. A second set of inadmissibility grounds relates to the substance of the main proceedings before the referring body, a reference only being admissible if a decision is necessary to enable the national court or tribunal to give judgment. In this context, the Court of Justice notably ascertains whether a case is actually pending before the referring court or tribunal and whether EU law is indeed applicable in the case at hand. A third set of inadmissibility grounds derives from the content of the order for reference, which, if it is deficient, can make it impossible for the Court of Justice to provide a ruling which is useful for deciding the case (Section 2.2.4. Admissibility of the Reference). Finally, a number of features of the ruling issued by the Court of Justice are examined (Section 2.2.5. The Preliminary Ruling and Its Effects).

24 Case C-68/95 T. Port [EU:C:1996:452] para 53. 25 Case C-101/78 Granaria [EU:C:1979:38] para 16. 26 See C Barnard and E Sharpston, ‘The changing face of Article 177 references’ (1997) Common Market Law Review 1113; D O’Keeffe, ‘Is the spirit of Article 177 under attack? Preliminary references and admissibility’ (1998) European Law Review 509; N Wahl and L Prete, ‘The gatekeepers of Article 267 TFEU: on jurisdiction and admissibility of references for preliminary rulings’ (2018) Common Market Law Review 511.

Decision to Request a Preliminary Ruling 57

2.2.2. Decision to Request a Preliminary Ruling When to make a request for a preliminary ruling? There are no provisions of EU law which would define the time at which a national court or tribunal should (as opposed to can or must) make a request for a preliminary ruling. As a general rule, such a court or tribunal has the widest discretion in this regard, provided that it considers that an interpretative ruling from the Court of Justice is necessary for it to be able to decide a case actually pending before it, and such a discretion belongs to the court or tribunal concerned, and not to the parties to the dispute. It can be exercised in any type of proceedings and at any stage thereof (cf Subsection 2.2.2.1. Discretion of the National Court to Refer). Furthermore, where a question of interpretation of EU law is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal has an obligation to request a preliminary ruling from the Court of Justice (cf Subsection 2.2.2.2. Obligation of Courts of Last Instance to Refer),27 subject to a few exceptions where: (i) the question raised is not relevant to decide the case; (ii) the question raised is materially identical to a question which has already been the subject of a preliminary ruling in a similar case (‘acte éclairé’); and (iii) the wording of a provision of EU law is so obvious as to leave no room for doubt as to its interpretation (‘acte clair’) (cf Subsection 2.2.2.3. Exceptions to the Duty to Refer). Both the discretion and the obligation to refer are inherent parts of the system of cooperation established by Article 267 TFEU between the national courts, in their capacity as courts responsible for the application of EU law, and the Court of Justice, and may not be restricted in any way by national law.28

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2.2.2.1. Discretion of the National Court to Refer National courts may always refer a question of interpretation of EU law to the Court of Justice. National courts and tribunals have the widest discretion in referring matters to the Court of Justice if they consider that a pending case raises questions involving the interpretation of provisions of EU law, which must be settled before deciding said case (cf paras 2.131–2.135).29 Such courts and tribunals may therefore submit a request whenever they find that an interpretative ruling from the Court of Justice is necessary to enable them to give judgment. In this regard, Advocate General Jacobs expressed the view, in his Opinion in Wiener SI,30 that A reference will be most appropriate where the question is one of general importance and where the ruling is likely to promote the uniform application of the law throughout the [EU]. A reference will be least appropriate where there is an established body of case law which could readily be transposed to the facts of the instant case; or where the question turns on a narrow point considered in the light of a very specific set of facts and the ruling is unlikely to have any application beyond the instant case. Between those two extremes there is of course a wide spectrum of possibilities.

27 The same obligation is imposed on any court that wishes to hold an EU act invalid (cf Chapter 3.8. Preliminary Rulings on Validity). 28 Case C-106/77 Simmenthal [EU:C:1978:49] paras 20–22; Case C-348/89 Mecanarte [EU:C:1991:278] para 45; Case C-689/13 PFE [EU:C:2016:199] paras 33–34. 29 Case C-234/17 XC and Others [EU:C:2018:853] para 42. 30 Opinion of AG Jacobs in Case C-338/95 Wiener SI [EU:C:1997:352] para 20.

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58 Preliminary Rulings on Interpretation Despite having been specifically asked to do so,31 the Court of Justice has never laid down a test or threshold which the national court must apply when deciding whether to refer questions to the Court of Justice. 2.74

The national court, not the parties, decides whether to make a reference to the Court of Justice. It is the national court or tribunal that decides whether to make a preliminary reference to the Court of Justice. In this context, it should be borne in mind that the preliminary ruling procedure is not restricted to cases where a party to the main proceedings has raised a point in his pleadings concerning the interpretation of EU law, but also extends to cases where a question of this kind is raised by the national court or tribunal itself.32 In this context, the Court of Justice has consistently held that Article 267 TFEU does not constitute a means of redress available to the parties to a case pending before a national court or tribunal. Therefore the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of EU law does not mean that the court or tribunal concerned is compelled to consider that a question has been ‘raised’ within the meaning of Article 267 TFEU (cf para 2.127).33 In this respect, the referring court or tribunal is free to disregard the wishes of the parties, even if those wishes are unanimous.

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It is for the referring court alone to determine and formulate the questions. The right to determine the questions to be put to the Court of Justice devolves on the national court or tribunal alone. The Court of Justice thus held that to answer requests by the parties to amend the questions would be incompatible with Article 267 TFEU. Moreover, it would be incompatible with the duty of the Court of Justice to ensure that the governments of the Member States and the parties concerned are given the opportunity to submit observations in accordance with Article 23 of the Statute, bearing in mind that, under that provision, only the order of the referring court is notified to the interested parties.34 The Court of Justice therefore cannot take into account the arguments by which the parties submit that questions not referred to in the order for reference have to be decided by the Court of Justice. Even if this were to be the case, it would be for the referring court or tribunal to make a fresh request to the Court of Justice, even at a later stage of its proceedings, if it considers that it is necessary to obtain a further ruling from the Court of Justice for the purpose of giving its judgment.35

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A preliminary reference may be made in any type of national judicial proceedings. A reference may be made in any type of judicial proceedings, regardless of the nature and objective of the decision which the national court is called upon to give.36 References may therefore be made in ordinary proceedings, in summary and urgent proceedings,37 in declaratory proceedings38 or

31 Case C-344/04 IATA and ELFAA [EU:C:2006:10]. 32 Case C-126/80 Salonia [EU:C:1981:136] para 7; Case C-251/11 Huet [EU:C:2012:133] para 23; Case C-26/11 Belgische Petroleum Unie and Others [EU:C:2013:44] para 23; Case C-561/11 Fédération Cynologique Internationale [EU:C:2013:91] paras 26 and 30. 33 Case C-283/81 Cilfit and Others [EU:C:1982:335] para 9; Order of 14 November 2013 in Case C-257/13 Mlamali [EU:C:2013:763] para 23; Order of 3 July 2014 in Case C-19/14 Talasca [EU:C:2014:2049] para 22; Order of 16 July 2015 in Case C-299/15 Striani and Others [EU:C:2015:519] para 33. 34 Case C-508/14 T-Mobile Czech Republic and Vodafone Czech Republic [EU:C:2015:657] paras 28–29. 35 Case C-381/89 Syndesmos Melon Tis Eleftheras Evangelikis Ekklisias and Others [EU:C:1992:142] para 19. 36 Case C-244/80 Foglia [EU:C:1981:302] para 33. 37 Case C-107/76 Hoffmann-Laroche [EU:C:1977:89] para 4; Case C-338/85 Pardini [EU:C:1988:194] para 14. 38 Case C-412/93 Leclerc-Siplec [EU:C:1995:26] para 14; Case C-415/93 Bosman [EU:C:1995:463] paras 64–65; Case C-621/18 Wightman and Others [EU:C:2018:999] para 31.

Decision to Request a Preliminary Ruling 59 in ex parte proceedings.39 The Court of Justice has also stressed that Article 267 TFEU draws no distinction according to the nature of the national proceedings within the framework of which the preliminary questions are formulated. References for preliminary rulings can therefore be made in any matters, such as civil, administrative, criminal40 or constitutional law.41 A preliminary reference may be made at any stage of the national proceedings. The referring court or tribunal is in the best position to decide at what stage of the proceedings a request for a preliminary ruling should be made. The Court of Justice has thus consistently held that, in order to ensure the primacy of EU law, the national court or tribunal is free to refer to the Court of Justice for a preliminary ruling any question that it considers necessary, at whatever stage of the proceedings it considers appropriate42 or necessary in the light of domestic procedural rules.43 Such a decision must be dictated by considerations of procedural economy and efficiency to be weighed only by the national court and not by the Court of Justice.44 In this regard, a premature request for a preliminary ruling might not achieve the purpose of the preliminary ruling mechanism and, as such, might be considered as a request to deliver an advisory opinion on a general or hypothetical question (cf para 2.132). A reference should therefore be submitted only after the national court finds, in the case that it has to decide, that a ruling on the interpretation of EU law is necessary to enable it to give judgment. In this context, it may be appropriate to establish the facts of the case and settle questions of purely national law at the time the reference is made to the Court of Justice so that the latter has knowledge of all the factual and legal elements which may be relevant to the interpretation of EU law which it is called upon to give.45 In the interests of the proper administration of justice, it is also desirable for the reference to be made only after both sides have been heard, though a reference will not be held inadmissible because the parties have not been heard.46 A reference can therefore be made at the non-contentious stage of examining the admissibility of the application before the referring court, which is intended, if it is admissible, to result in a judicial decision,47 or before deciding whether to grant an interlocutory injunction.48 Finally, where the outcome of a number of cases pending before the referring court or tribunal depends on the reply to be given by the Court of Justice to the questions submitted by that court or tribunal, it is appropriate for that court or tribunal to join those cases before submitting to the Court its request for a preliminary ruling in order to enable the Court to reply to the questions referred notwithstanding the possible withdrawal of one or more cases, for instance, following a settlement between the parties.49

39 Case C-70/77 Simmenthal [EU:C:1978:139] paras 10–11; Case C-199/82 San Giorgio [EU:C:1983:318] para 8; Joined Cases C-277/91, C-318/91 and C-319/91 Ligur Carni and Others [EU:C:1993:927] paras 15–16. 40 Case C-82/71 SAIL [EU:C:1972:20] para 5; Case C-238/84 Röser [EU:C:1986:88] para 15. 41 Case C-399/11 Melloni [EU:C:2013:107]. 42 Joined Cases C-188/10 and C-189/10 Melki and Abdeli [EU:C:2010:363] para 52; Order of 1 March 2011 in Case C-457/09 Chartry [EU:C:2011:101] para 19; Case C-173/09 Elchinov [EU:C:2010:581] para 26; Case C-180/11 Bericap Záródástechnikai [EU:C:2012:717] para 53. 43 Case C-52/09 TeliaSonera [EU:C:2011:83] para 10. 44 Case C-14/86 X [EU:C:1987:275] para 11. 45 Joined Cases C-36/80 and C-71/80 Irish Creamery Milk Suppliers Association and Others [EU:C:1981:62] para 6; Case C-343/90 Lourenço Dias [EU:C:1992:327] para 19; Case C-66/96 Høj Pedersen and Others [EU:C:1998:549] para 45. 46 Case C-561/11 Fédération Cynologique Internationale [EU:C:2013:91] paras 25–31. 47 Case C-546/14 Degano Trasporti [EU:C:2016:206] paras 16–17. 48 See, eg R v Secretary of State for Transport, ex parte Factortame Ltd [1990] 2 AC 85 (HL); Case C-213/89 Factortame [EU:C:1990:257]. 49 Recommendations to national courts and tribunals, in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1) para 27.

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60 Preliminary Rulings on Interpretation 2.78

The discretion of the national courts cannot be limited by national law. The discretion of national courts in deciding to make a reference to the Court of Justice cannot be limited by national procedural rules50 or by judicial practice.51 The Court of Justice thus held that a rule which would provide that only the Supreme Court is entitled to make references for preliminary rulings to the Court of Justice must be disregarded.52 Also, Article 267 TFEU precludes Member State legislation which establishes an interlocutory procedure for the review of the constitutionality of national laws, insofar as the priority nature of that procedure prevents all the other national courts or tribunals from exercising their right or fulfilling their obligation to refer questions to the Court of Justice for a preliminary ruling.53 Furthermore, a rule of national law, pursuant to which legal rulings of a higher court bind another national court, cannot take away from the latter court the discretion to refer to the Court of Justice questions of interpretation of the points of EU law concerned by such legal rulings. That court must be free, if it considers that a higher court’s legal ruling, including a constitutional court, could lead it to deliver a judgment contrary to EU law, to refer to the Court of Justice questions which concern it.54

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The discretion cannot be limited by an agreement between the parties. The discretion of national courts to refer preliminary questions to the Court of Justice cannot be limited by agreements between private persons, whether they may wish to restrict this discretion or, on the contrary, whether they tend to compel national courts to request a preliminary ruling, thereby depriving them of the independent exercise of the discretion which they are given by Article 267 TFEU.55

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The discretion is not limited by the existence of settled case law, pending cases or an earlier reference made in the same national court case. Whilst the existence of settled case law on a point of EU law raised in the preliminary reference may prompt the Court of Justice to issue an order under the simplified procedure56 (cf para 4.481), it cannot in any way affect the admissibility of the reference if a national court decides, in the exercise of its discretion, to bring the matter before the Court under Article 267 TFEU.57 Furthermore, the existence of cases pending before the Court of Justice which have a similar object has no bearing on the discretion of the referring court or tribunal to submit a request for a preliminary ruling, though the Court of Justice may decide, formally or informally, to suspend the procedure.58 In addition, even if the national court or tribunal has already made a request for a preliminary ruling in the same proceedings, said 50 Case C-166/73 Rheinmühlen-Düsseldorf [EU:C:1974:3] paras 2–3; Case C-312/93 Peterbroeck [EU:C:1995:437] para 13; Joined Cases C-430/93 and C-431/93 van Schijndel and van Veen [EU:C:1995:441] para 18; Case C-210/06 Cartesio [EU:C:2008:723] paras 93, 94 and 98; Case C-173/09 Elchinov [EU:C:2010:581] para 27; Case C-180/11 Bericap Záródástechnikai [EU:C:2012:717] para 54; Case C-136/12 Consiglio Nazionale dei Geologi and Autorità garante della concorrenza e del mercato [EU:C:2013:489] para 32; Case C-689/13 PFE [EU:C:2016:199] para 32. 51 Case C-617/10 Åkerberg Fransson [EU:C:2013:105] para 48. 52 Case C-180/11 Bericap Záródástechnikai [EU:C:2012:717] paras 52–54. 53 Joined Cases C-188/10 and C-189/10 Melki and Abdeli [EU:C:2010:363] para 57; Order of 1 March 2011 in Case C-457/09 Chartry [EU:C:2011:101] para 20. 54 Case C-11/70 Internationale Handelsgesellschaft [EU:C:1970:114] para 3; Case C-409/06 Winner Wetten [EU:C: 2010:503] para 61; Case C-378/08 ERG and Others [EU:C:2010:126] para 32; Case C-173/09 Elchinov [EU:C:2010:581] para 27; Joined Cases C-188/10 and C-189/10 Melki and Abdeli [EU:C:2010:363] paras 41–45; Case C-416/10 Križan and Others [EU:C:2013:8] paras 68–71; Case C-322/16 Global Starnet [EU:C:2017:985] para 26; Joined Cases C-52/16 and C-113/16 SEGRO and Horváth [EU:C:2018:157] para 48. 55 Case C-93/78 Mattheus [EU:C:1978:206] para 5. 56 CJ RoP, Art 99. 57 Case C-503/10 Evroetil [EU:C:2011:872] para 36; Case C-528/11 Halaf [EU:C:2013:342] para 30; Joined Cases C-22/13, C-61/13, C-63/13 and C-418/13 Mascolo and Others [EU:C:2014:2401] para 49; Case C-300/13 Consejería de Infraestructuras y Transporte de la Generalitat Valenciana and Iberdrola Distribución Eléctrica [EU:C:2014:188]; Order of 4 April 2017 in Case C-555/16 D’Andria [EU:C:2017:261]. 58 CJ RoP, Art 54.

Decision to Request a Preliminary Ruling 61 court is entitled to make a further reference to the Court of Justice if it considers it necessary in order to give judgment in the main proceedings, in particular when it has difficulties in understanding or applying the judgment, when it refers a fresh question of law to the Court of Justice or when it submits new considerations which might lead the Court of Justice to give a different answer to a question submitted earlier.59

2.2.2.2. Obligation of Courts of Last Instance to Refer Courts of last instance have an obligation to refer. If a court or tribunal of last instance considers that recourse to EU law is necessary to enable it to decide a case, Article 267 TFEU imposes, in principle, an obligation on it to refer to the Court of Justice any question of interpretation which may arise.60 Article 267 TFEU thus makes a distinction between appealable decisions, regarding which courts and tribunals of Member States enjoy discretion to refer a preliminary question to the Court of Justice, and those against which there is no judicial remedy under national law, regarding which there is no such discretion and the question must be referred.

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This obligation to refer derives from the purpose of the preliminary ruling mechanism. The obligation to refer imposed on national courts of last instance must be understood in the light of the purpose of the preliminary ruling procedure, which is to ensure the proper application and the uniform interpretation of EU law in all Member States, and in particular to prevent the creation, in any Member State, of a body of national case law inconsistent with EU law61 and to prevent rights conferred on individuals by EU law from being infringed.62 Lower courts being obliged to follow the decisions of the higher courts, this objective is secured when only courts of last instance are bound by that obligation to refer, which at the same time avoids overloading the docket of the Court of Justice with unnecessary requests for preliminary rulings, which would impair the ability of the Court of Justice to deal efficiently with such requests.

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Court or tribunal ‘against whose decisions there is no judicial remedy under national law’. The notion of a court or tribunal ‘against whose decisions there is no judicial remedy under national law’ not only encompasses the supreme courts of the Member States,63 but also any national court or tribunal whose decisions cannot be appealed.64 Lower courts may therefore

2.83

59 Order of 5 March 1986 in Case C-69/85 Wünsche [EU:C:1986:104] para 15; Case C-14/86 X [EU:C:1987:275] para 12; Case C-466/00 Kaba [EU:C:2003:127] para 39. 60 Case C-283/81 Cilfit and Others [EU:C:1982:335] paras 11–20; Case C-136/12 Consiglio Nazionale dei Geologi and Autorità garante della concorrenza e del mercato [EU:C:2013:489] para 27; Case C-234/17 XC and Others [EU:C:2018:853] para 43. 61 Case C-107/76 Hoffmann-Laroche [EU:C:1977:89] para 5; Case C-283/81 Cilfit and Others [EU:C:1982:335] para 7; Joined Cases C-35/82 and C-36/82 Morson and Jhanjan [EU:C:1982:368] para 8; Case C-337/95 Parfums Christian Dior [EU:C:1997:517] para 25; Case C-393/98 Gomes Valente [EU:C:2001:109] para 17; Case C-99/00 Lyckeskog [EU:C:2002:329] para 14; Case C-495/03 Intermodal Transports [EU:C:2005:552] para 29; Case C-260/07 Pedro IV Servicios [EU:C:2009:215] para 32; Case C-416/17 Commission v France (advance payment) [EU:C:2018:811] para 109. 62 Case C-224/01 Köbler [EU:C:2003:513] para 35. 63 See, eg Case C-458/06 Gourmet Classic [EU:C:2008:338] para 31. In Case C-416/10 Križan and Others [EU:C:2013:8] para 72, the Court of Justice confirmed that the Supreme Court of the Slovak Republic had to be considered as a court of last instance for the purposes of Art 267 TFEU, even though there exists, under national law, a possibility of bringing, before the constitutional court of the same Member State, an action against the decisions of the said national court, limited to an examination of a potential infringement of the rights and freedoms guaranteed by the national constitution or by an international agreement. 64 Joined Cases C-28/62 to C-30/62 Da Costa and Others [EU:C:1963:6]; Case C-337/95 Parfums Christian Dior [EU:C:1997:517] para 26; Case C-99/00 Lyckeskog [EU:C:2002:329] para 15; Case C-495/03 Intermodal Transports [EU:C:2005:552] para 30; Case C-458/06 Gourmet Classic [EU:C:2008:338] para 31; Case C-136/12 Consiglio Nazionale dei Geologi and Autorità garante della concorrenza e del mercato [EU:C:2013:489] para 25.

62 Preliminary Rulings on Interpretation qualify as courts of last instance for the purposes of Article 267(3) TFEU, and are under a duty to refer where there is no judicial remedy under national law against their decisions. Thus, in Da Silva, the Dutch Tariefcommissie was under a duty to refer, since it was an administrative tribunal having final jurisdiction in revenue cases.65 Likewise, in Costa, the Milan magistrates’ court was considered to be a court of last instance, in respect of a decision which could not be appealed before a higher court due to the small amount of money at issue.66 On the other hand, if a right of appeal can be effectively exercised, the court or tribunal concerned remains free to request a preliminary ruling from the Court of Justice, though it will not be under an obligation to do so (cf para 2.72).67 2.84

Leave to appeal. The question arises as to whether a national court or tribunal whose decisions will be examined by a national supreme court, before which they are challenged, must be considered as a court of last instance for the purposes of Article 267(3) TFEU where such a supreme court must, as a preliminary step, declare the appeal to be admissible. The crucial test in that regard is whether the losing party has a right to a legal review of the decision, thereby ensuring the possibility of a reference for a preliminary ruling.68 In that context, the Court of Justice has held that decisions of a national appellate court which can be challenged by the parties before a supreme court are not decisions of a court of last instance within the meaning of Article 267(3) TFEU. The fact that examination of the merits of such appeals is subject to a prior declaration of admissibility by the supreme court does not have the effect of depriving the parties of a judicial remedy, since if a question arises as to the interpretation or validity of a rule of EU law, the supreme court hearing the case will be under an obligation, pursuant to Article 267(3) TFEU, to refer a question to the Court of Justice for a preliminary ruling either at the stage of the examination of admissibility or at a later stage.69 The same conclusion must be drawn where a procedural system merely imposes restrictions with regard to the nature of the pleas which may be raised before such a supreme court, which must allege a breach of law.70

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Interlocutory proceedings. A court or tribunal of a Member State is not required to make a reference when a question of EU law is raised in interlocutory proceedings, even where there is no judicial remedy against the interlocutory order, provided that the parties are entitled to raise the question again in the context of substantive proceedings.71 In this context, there is no obligation to make a preliminary reference in summary or urgent proceedings relating to interim measures where an ordinary main action, permitting the re-examination of any question of law provisionally decided in the summary proceedings, must be instituted, either in all circumstances or when the unsuccessful party so requires.72 In these circumstances, the specific objective underlying Article 267(3) TFEU is preserved since the obligation to refer preliminary questions to the Court of Justice applies within the context of the main action.

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There can be more than one court of last instance in a given case. In Parfums Christian Dior, the question arose, in proceedings relating to Benelux trade marks, whether the highest national

65 Joined Cases C-28/62 to C-30/62 Da Costa and Others [EU:C:1963:6]. 66 Case C-6/64 Costa [EU:C:1964:66]. 67 Case C-210/06 Cartesio [EU:C:2008:723] para 78. 68 M Broberg and N Fenger, Preliminary References to the European Court of Justice (Second Edition, Oxford University Press, Oxford, 2014) 227. 69 Case C-99/00 Lyckeskog [EU:C:2002:329] paras 10–19. 70 Case C-210/06 Cartesio [EU:C:2008:723] para 77. 71 Case C-107/76 Hoffmann-Laroche [EU:C:1977:89] para 6. 72 Joined Cases C-35/82 and C-36/82 Morson and Jhanjan [EU:C:1982:368] para 8.

Decision to Request a Preliminary Ruling 63 court or, alternatively, the Benelux Court (that provides preliminary rulings on interpretation of the Benelux uniform trade mark law) had to be regarded as the court or tribunal against whose decisions there was no remedy under national law. The Court of Justice held that both courts were obliged to make a reference to the Court of Justice if a question regarding the interpretation of EU law was raised in the proceedings before them. However, it added that the obligation to refer lost its purpose and was thus emptied of its substance when the question raised was substantially the same as a question which had already been the subject of a preliminary ruling in the same national proceedings.73 Furthermore, a national supreme court is considered as a court of last instance even if there is a possibility of bringing, before the constitutional court of the Member State concerned, an action against its decisions, limited to an examination of a potential infringement of the rights and freedoms guaranteed by the national constitution or by an international agreement.74

2.2.2.3. Exceptions to the Duty to Refer Notion. The obligation to refer imposed on courts of last instance is waived in a number of situations where there is no genuine risk of creation of an inconsistent body of national case law. This is the case, first, where the question raised regarding the interpretation of EU law is not relevant to decide the case (cf para 2.88); secondly, where it is materially identical with a question which has already been the subject of a preliminary ruling in a similar case (‘acte éclairé’) (cf para 2.89); and thirdly, where the wording of a provision of EU law is so obvious as to leave no room for doubt as to its interpretation (‘acte clair’) (cf para 2.90).

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The question on interpretation of EU law is not relevant to decide the case. A court of last instance is not obliged to refer to the Court of Justice questions concerning the interpretation of EU law raised before it if the questions are not relevant, ie if the answer to those questions, regardless of what they may be, cannot affect the outcome of the case. This relevance is to be assessed exclusively by the national court or tribunal hearing the case.75 In that regard, the Court of Justice has consistently held that it follows from the relationship between Article 267(2) and Article 267(3) TFEU that national courts of last instance enjoy the same discretion as any other national court or tribunal to ascertain whether a decision on a question of EU law is necessary to decide the case before them.76

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The question is materially identical to a question which has already been the subject of a preliminary ruling in a similar case (‘acte éclairé’). Where a question raised before a court of last instance is ‘materially identical to a question which has already been the subject of a preliminary ruling in a similar case’, the national court is under no obligation to refer. The Court of Justice held so in Da Costa,77 in which the Dutch tribunal Tariefcommissie (cf para 2.83) referred questions related to questions it had already referred a month earlier. The Court of Justice stated that

2.89

Although [Article 267(3) TFEU] unreservedly requires courts or tribunals of a Member State against whose decisions there is no judicial remedy under national law … to refer to the Court every question

73 Case C-337/95 Parfums Christian Dior [EU:C:1997:517] paras 24–31. 74 Case C-416/10 Križan and Others [EU:C:2013:8] para 72. 75 Case C-452/14 Doc Generici [EU:C:2015:644] para 44. 76 Case C-283/81 Cilfit and Others [EU:C:1982:335] para 10; Case C-136/12 Consiglio Nazionale dei Geologi and Autorità garante della concorrenza e del mercato [EU:C:2013:489] para 26. 77 Joined Cases C-28/62 to C-30/62 Da Costa and Others [EU:C:1963:6].

64 Preliminary Rulings on Interpretation of interpretation raised before them, the authority of an interpretation under Article [267] already given by the Court may deprive the obligation of its purpose and thus empty it of its substance. Such is the case especially when the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case.

This formulation was repeated in CILFIT, in which the Court of Justice held that a court falling within Article 267(3) TFEU will be exempt from the obligation to refer ‘where previous decisions of the Court have already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decisions, even though the questions at issue are not strictly identical’.78 While there is no obligation to refer in such cases, the national court or tribunal of last instance remains at liberty to refer a question to the Court of Justice. In such a case, the Court of Justice may give its decision by reasoned order.79 It is important to note that this doctrine, called ‘acte éclairé’, does not absolve national courts from the obligation to refer questions concerning the validity of EU acts (cf Chapter 3.8).80 2.90

The wording of a provision of EU law is so obvious as to leave no room for doubt as to its interpretation (‘acte clair’). There are situations in which it may not appear necessary to seek guidance from the Court of Justice regarding the true content of an EU law provision because the wording of the latter leaves no room for doubt as to its interpretation. In other words, there is no need for a court of last instance to refer a case to the Court of Justice where there is no risk of improper interpretation of EU law by Member States’ courts.81 The Court of Justice defined what is conventionally known as the ‘acte clair’ doctrine in CILFIT,82 in which it noted that ‘the correct application of [EU] law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved’.83 The Court of Justice then spelled out the conditions which must be met in order to allow a court of last instance to reach such a conclusion. In this regard, the national court, bearing in mind the risk of divergences in judicial decisions within the EU, must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice. Only if those conditions are satisfied, may the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it.

In coming to this conclusion, the national judge must have in mind ‘the characteristic features of EU law and the particular difficulties to which its interpretation gives rise’, including the need to compare the different language versions of EU legislation, each of which is equally authentic; the use of terminology which is peculiar to EU law, or which has a different meaning in EU law from its meaning in the law of the various Member States; and the need to place every provision of EU law in its context and to interpret it in the light of the provisions of EU law as a whole, regard being had to the objectives of EU law and to its state of evolution at the date on which the provision in question is to be applied.84 Despite the criticism of the CILFIT case law by a number

78 Case C-283/81 Cilfit and Others [EU:C:1982:335] para 14. 79 CJ RoP, Art 99. 80 Case C-314/85 Foto-Frost [EU:C:1987:452] paras 15–18; Case C-461/03 Gaston Schul Douane-expediteur [EU:C:2005:742] paras 19–25. 81 Opinion of AG Lagrange in Joined Cases C-28/62 to C-30/62 Da Costa and Others [EU:C:1963:2] p. 45. 82 Case C-283/81 Cilfit and Others [EU:C:1982:335]. 83 Case C-283/81 Cilfit and Others [EU:C:1982:335] para 16. 84 Case C-283/81 Cilfit and Others [EU:C:1982:335] paras 17–20.

Decision to Request a Preliminary Ruling 65 of authors and Advocates General alike,85 it has been reaffirmed and further elaborated on in the subsequent case law of the Court of Justice, though not including a specific requirement to have regard to different linguistic versions of EU law.86 In Ferreira da Silva e Brito,87 rendered the same day as the judgment in X,88 the Court of Justice appears to have somehow relaxed the criteria set out in CILFIT. For the first time, the Court of Justice stated that a supreme court had breached its duty to make a preliminary reference under Article 267(3) TFEU. The Court of Justice drew a distinction between, on the one hand, a disagreement between lower courts and a court of last instance of the same Member State, which does not preclude the application of the ‘acte clair’ doctrine, and, on the other hand, a greater degree of uncertainty on the part of ‘many national courts and tribunals which, as a consequence, have found it necessary to make a reference to the Court of Justice’, where the ‘acte clair’ doctrine cannot be applied. According to the Court of Justice, that uncertainty shows not only that there are difficulties of interpretation, but also that there is a risk of divergences in judicial decisions within the EU. In the case at hand, which was characterised both by conflicting lines of case law at national level regarding an EU concept and by the fact that that concept frequently gives rise to difficulties of interpretation in the various Member States, a national court or tribunal against whose decisions there is no judicial remedy under national law had to comply with its obligation to make a reference to the Court in order to avert the risk of an incorrect interpretation of EU law.89 The breach of the duty to make a preliminary reference may also be the subject matter of an infringement action brought by the Commission under Article 258 TFEU against the Member State whose court failed to refer, as was the case in Commission v France (advance payment)90 (cf para 2.10). The Court of Justice held that the absence of a reference for a preliminary ruling on the part of the French Conseil d’État (Council of State) in two cases that the latter had previously decided led the Conseil d’État to adopt, in those cases, a solution based on an interpretation of EU law that differed from the interpretation given by the Court of Justice in the same Commission v France (advance payment) infringement judgment and in an earlier preliminary ruling that concerned the same EU law provisions.91 This implied that the absence of a preliminary reference by the Conseil d’État could not be justified by the acte clair doctrine, since the existence of reasonable doubt regarding the interpretation of the EU law provisions at issue could not be ruled out.92 The Court thus found that the French Republic had failed to fulfil its obligations under Article 267(3) TFEU. A court of last instance must reason its decision not to refer. A national court against whose decisions there is no judicial remedy under national law is in principle required to make a reference to the Court of Justice for a preliminary ruling. It has, however, occurred that national courts of last instance have declined to make such a reference, despite being in principle bound to do so. There are examples where individual applicants had taken the matter to the European Court of Human

85 See the legal literature cited in F Ferraro, ‘The consequences of the breach of the duty to make a reference to the ECJ for a preliminary ruling’ (2015) Il Diritto dell’Unione Europea 594; see also Opinion of AG Jacobs in Case C-338/95 Wiener SI [EU:C:1997:352]; Opinion of AG Tizzano in Case C-99/00 Lyckeskog [EU:C:2002:108] para 64; Opinion of AG Colomer in Case C-461/03 Gaston Schul Douane-expediteur [EU:C:2005:415]; Opinion of AG Stix-Hackl in Case C-495/03 I ntermodal Transports [EU:C:2005:215]. 86 Case C-495/03 Intermodal Transports [EU:C:2005:552] para 35. 87 Case C-160/14 Ferreira da Silva e Brito and Others [EU:C:2015:565]. 88 Joined Cases C-72/14 and C-197/14 X and van Dijk [EU:C:2015:564]. 89 Case C-160/14 Ferreira da Silva e Brito and Others [EU:C:2015:565] paras 42–44. 90 Case C-416/17 Commission v France (advance payment) [EU:C:2018:811] paras 100–101. 91 Case C-35/11 Test Claimants in the FII GroupLitigation [EU:C:2012:707]. 92 Case C-416/17 Commission v France (advance payment) [EU:C:2018:811] paras 111–114.

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66 Preliminary Rulings on Interpretation Rights, which found a violation of Article 6 of the ECHR based on the failure by the national court to provide a statement of reasons explaining the refusal to make a reference to the Court of Justice.93 This obligation was explicitly reaffirmed by the Court of Justice, which held that a national court is relieved of the obligation to refer only when it is convinced, which it must establish in detail, that no reasonable doubt exists as to the interpretation and application of EU law.94

2.2.2.4. Consequences for not Complying with an Obligation to Refer 2.92

Notion. Although Article 267(3) TFEU imposes an obligation on certain courts to make references to the Court of Justice, neither this article nor other Treaty provision imposes any remedies available to individuals for a breach of that obligation. In the system of legal remedies provided for by the EU Treaties, an infringement of EU law by the national authorities, including an infringement of Article 267 TFEU, may be brought before the EU courts by the Commission or by another Member State (see Chapter 2.1. Infringement Actions), or may be brought before the competent national courts by any natural or legal person. In the latter case, it is for the national courts to ensure that rules of EU law are protected and thus that the effectiveness of judicial protection is not undermined in any way.

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Infringement proceedings against the Member State concerned. Member States must ensure that their courts and tribunals comply with EU law. In the absence of compliance by said courts and tribunals with their obligation deriving from Article 267(3) TFEU, the Commission may initiate infringements proceedings against the Member State concerned pursuant to Article 258 TFEU.95 A Member State may be liable under Article 258 TFEU for a breach of EU law committed by a constitutionally independent institution, including a court.96

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Action for damages against the Member State. A Member State can be held liable for damage caused to individuals as a result of breaches of EU law for which it is responsible.97 That principle applies to any case in which a Member State breaches EU law, whichever of its authorities is responsible for the act or omission contrary to EU law.98 The Court of Justice held in that regard that a national court adjudicating at last instance is by definition the last judicial body before which individuals may assert the rights conferred on them by EU law. Since an infringement of those rights by a final decision of such a court cannot thereafter normally be corrected, individuals cannot be deprived of the possibility of rendering the State liable in order to obtain legal protection of their rights.99 The injured parties must, in that connection, demonstrate that: (i) the rule of law infringed is intended to confer rights on individuals;100 (ii) the breach is sufficiently serious, ie the national court has manifestly infringed the applicable law, taking account of all the

93 ECoHR Case Dhabby v Italy (17120/09) 8 April 2014; ECoHR Case Schipani v Italy (38369/09) 21 July 2015. 94 Case C-379/15 Association France Nature Environnement [EU:C:2016:603] para 53. 95 Case C-416/17 Commission v France (advance payment) [EU:C:2018:811]. 96 Case C-129/00 Commission v Italy (recovery of sums paid though not due) [EU:C:2003:656]; Case C-416/17 Commission v France (advance payment) [EU:C:2018:811] para 107. 97 Joined Cases C-6/90 and C-9/90 Francovich and Others [EU:C:1991:428] para 35; Joined Cases C-46/93 and C-48/93 Brasserie du pêcheur and Factortame [EU:C:1996:79] para 31; Case C-224/01 Köbler [EU:C:2003:513] para 30; Case C-244/13 Ogieriakhi [EU:C:2014:2068] para 49. 98 Joined Cases C-46/93 and C-48/93 Brasserie du pêcheur and Factortame [EU:C:1996:79] para 32; Case C-302/97 Konle [EU:C:1999:271] para 62; Case C-224/01 Köbler [EU:C:2003:513] para 31; Case C-173/03 Traghetti del Mediterraneo [EU:C:2006:391] para 30. See also Case C-453/00 Kühne & Heitz [EU:C:2004:17] para 20. 99 Case C-224/01 Köbler [EU:C:2003:513] para 34. 100 It is not clear whether Art 267 TFEU constitutes such a provision.

Jurisdiction of the Court of Justice 67 factors which characterise the situation put before it, such as the degree of clarity and precision of the rule infringed, whether the infringement was intentional, whether the error of law was excusable or not, the position taken, where applicable, by an EU institution as well as the noncompliance by said court with its obligation to make a reference for a preliminary ruling under Article 267(3) TFEU; and (iii) there is a direct causal link between the breach of the obligation incumbent on the State and the loss or damage sustained by the injured parties.101 In this context, it is worth noting that an infringement of EU law will be sufficiently serious where the decision concerned was made in manifest breach of the case law of the Court of Justice in the matter.102 (For the substantive rules, see Chapter 3.3. Action for Damages, in particular para 3.410 on the equivalence of the conditions under which Member States and EU institutions or bodies may be held liable in damages for a breach of EU law.)

2.2.3. Jurisdiction of the Court of Justice – Subject Matter of the Question Referred 2.2.3.1. Interpretation of the Treaties Notion of ‘Treaties’. According to Article 267 TFEU, the Court of Justice has jurisdiction to give preliminary rulings on the interpretation of the ‘Treaties’. Article 1(3) TEU and Article 1(2) TFEU define the ‘Treaties’ as the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The jurisdiction of the Court of Justice to issue preliminary rulings extends to all measures adopted within the framework of those Treaties, provided that their provisions do not limit the jurisdiction of the Court of Justice in specific areas (cf paras 2.66 and 2.68). The notion of ‘Treaties’, for the purposes of Article 267 TFEU, encompasses the founding Treaties and any amendments thereto, as well as their Annexes and Protocols, which form an integral part thereof.103 In addition, the Court of Justice has jurisdiction to interpret the Merger Treaty,104 the Euratom Treaty105 and Accession Treaties by which States become members of the EU, as well as their Protocols.106 The jurisdiction of the Court of Justice also encompasses

101 Case C-224/01 Köbler [EU:C:2003:513] paras 51–52; Case C-379/10 Commission v Italy [EU:C:2011:775] paras 40–41; Case C-244/13 Ogieriakhi [EU:C:2014:2068] para 50. 102 Case C-224/01 Köbler [EU:C:2003:513] paras 53–56; Case C-173/03 Traghetti del Mediterraneo [EU:C:2006:391] para 32. See also Case C-244/13 Ogieriakhi [EU:C:2014:2068] para 51. The Court of Justice has also held that although it remains possible for national law to define the criteria relating to the nature or degree of the infringement which must be met before State liability can be incurred for an infringement of Union law attributable to a national court adjudicating at last instance, under no circumstances may such criteria impose requirements stricter than that of a manifest infringement of the applicable law (Case C-173/03 Traghetti del Mediterraneo [EU:C:2006:391] para 44; Case C-379/10 Commission v Italy [EU:C:2011:775] para 42). Also, EU law precludes a provision of national law which requires, as a precondition, the setting aside of the decision given by the court or tribunal which caused the loss or damage when such setting aside is, in practice, impossible (Case C-160/14 Ferreira da Silva e Brito and Others [EU:C:2015:565] para 60). 103 Art 51 TEU. See, eg Case C-32/67 van Leeuwen [EU:C:1968:8]; Case C-62/11 Feyerbacher [EU:C:2012:486]; Case C-349/14 Pazdziej [EU:C:2015:338]. 104 Art 30 of the Treaty establishing a single Council and a single Commission of the European Communities (67/443/CEE) (67/27/Euratom) (OJ 1967 L 152, p. 2). 105 Art 106a of the Euratom Treaty, as amended by Protocol No 2 to the Treaty of Lisbon. See C Naomé, Le renvoi préjudiciel en droit européen – Guide pratique (Larcier, Brussels, 2010) 73–74. 106 See, eg Case C-44/84 Hurd [EU:C:1986:2] para 15; Case C-179/00 Weidacher [EU:C:2002:18]; Case C-293/02 Jersey Produce Marketing Organisation [EU:C:2005:664]; Case C-410/09 Polska Telefonia Cyfrowa [EU:C:2011:294]; Case C-15/11 Sommer [EU:C:2012:371]; Case C-262/11 Kremikovtzi [EU:C:2012:760]; Case C-539/13 Merck Canada and Merck Sharp & Dohme; Case C-586/13 Martin Meat [EU:C:2015:405].

2.95

68 Preliminary Rulings on Interpretation the interpretation of Treaties which are no longer in force, such as the ECSC Treaty and the measures adopted under that Treaty, even if those questions are referred to it after the expiry of the ECSC Treaty, since specific rules contained therein may continue to produce effects even after said expiry.107 Declarations annexed to the Treaties do not form part thereof and do not fall under the jurisdiction of the Court of Justice. Nonetheless, they have to be taken into consideration for interpretation purposes.108 With the entry into force of the Lisbon Treaty, the jurisdiction of the Court of Justice has been extended to the Charter of Fundamental Rights, which has the same legal value as the Treaties,109 provided that the legal situation comes within the scope of EU law, since the provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction.110 Indeed, the fundamental rights guaranteed in the legal order of the EU are applicable in all situations governed by EU law, but not outside such situations.111 2.96

General principles of EU law. The general principles of law, which may be written or unwritten, are principles that supplement the Treaties and guide their interpretation. They serve to define and limit the scope of the competences of EU institutions or bodies, and to limit the margin of discretion of Member States when they implement EU law. Though the Treaties do not refer specifically to the general principles of EU law,112 they form part of EU primary law and must be observed in the interpretation and application of the Treaties.113 Where national rules fall within the scope of EU law, and reference is made to the Court of Justice for a preliminary ruling, the Court of Justice must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with such general principles.114

2.2.3.2. Interpretation of the Acts of Institutions, Bodies, Offices or Agencies of the Union 2.97

Notion of ‘EU institutions’. Article 13 TEU provides that the EU institutions are the European Parliament, the European Council, the Council, the European Commission, the Court of Justice, the European Central Bank (ECB) and the Court of Auditors.115 107 Case C-221/88 Busseni [EU:C:1990:84] para 16; Case C-119/05 Lucchini [EU:C:2007:434] para 41. 108 The Court of Justice has so ruled with respect to the Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Lisbon Treaty (Case C-135/08 Rottmann [EU:C:2010:104] para 40). 109 Art 6(1) TEU. Pursuant to Art 1 of Protocol 30 on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, the Charter does not extend the ability of the Court to find that the laws, regulations or administrative provisions, practices or action of Poland or of the UK are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. 110 Case C-617/10 Åkerberg Fransson [EU:C:2013:105] para 22; Order of 12 July 2012 in Case C-466/11 Currà and Others [EU:C:2012:465] para 26; Order of 23 February 2016 in Case C-380/15 Garzón Ramos and Ramos Martín [EU:C:2016:112]; Order of 18 February 2016 in Case C-407/15 Rîpanu [EU:C:2016:167]; Order of 23 February 2016 in Case C-520/15 Aiudapds [EU:C:2016:124]; Order of 26 October 2017 in Case C-333/17 Caixa Economica Montepio Geral [EU:C:2017:810] para 16; Order of 23 November 2017 in Case C-131/17 Cunha Martins [EU:C:2017:902] paras 17–19. On the applicability of the Charter, see A Rosas, ‘The applicability of the EU Charter of Fundamental Rights at national level’ (in: European Yearbook on Human Rights 2013 ed. by W Benedek, F Benoît-Rohmer, W Karl, M Kettemann and M Nowak, Neuer Wissenschaftlicher Verlag, Vienna, 2013) 97; M Safjan, D Düsterhaus and A Guérin, ‘La Charte des droits fondamentaux de l’Union européenne et les ordres juridiques nationaux, de la mise en œuvre à la mise en balance’ (2016) Revue trimestrielle de droit européen 249. 111 Case C-617/10 Åkerberg Fransson [EU:C:2013:105] para 19. 112 With the notable exception of Art 6(3) TEU, stating that fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, constitute part of the Union’s law as general principles, and Art 340 TFEU, governing the non-contractual liability of the Union. 113 Art 19(1) TEU. 114 Case C-144/04 Mangold [EU:C:2005:709] para 75; Order of 18 November 2011 in Case C-519/10 Colapietro [EU:C:2011:758] para 26. 115 The European Council and the ECB have acquired the status of EU institutions with the entry into force of the Lisbon Treaty (cf paragraph 2.67). Prior to said entry into force, the Court of Justice already had jurisdiction to give

Jurisdiction of the Court of Justice 69 Notion of ‘bodies, offices and agencies’. Prior to the Lisbon Treaty, Article 234(1)(b)–(c) TEC provided that the jurisdiction of the Court of Justice to give preliminary rulings on interpretation extended to the acts ‘of the institutions of the Community and of the [ECB]’, as well as to ‘the statutes of bodies established by an act of the Council, where those statutes so provide’. The Court of Justice had already interpreted this provision broadly, and had considered that an act of an EU institution is in essence any act in the conclusion of which an institution or agency has taken part.116 The Lisbon Treaty, which has given the Court of Justice jurisdiction over the acts of ‘bodies, offices and agencies’ of the EU, has not provided a definition of those terms.117 It has been suggested that the terms are intended to cover all EU legal measures regardless of the actual entity adopting the specific measure so as to ensure effective judicial protection of an individual’s rights under EU law.118

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Notion of bodies, offices and agencies ‘of the Union’. As provided for by Article 267 TFEU, the bodies, offices and agencies must be ‘of the Union’. The Court of Justice has nonetheless considered that it has jurisdiction to interpret acts which, while indeed adopted by bodies which cannot be described as ‘institutions, bodies, offices or agencies of the Union’, are by their nature measures implementing or applying an act of EU law, such as those adopted by the European Committee for Standardisation (CEN) and the European Committee for Electrotechnical Standardisation (Cenelec), and therefore form part of EU law, since it is by reference to the provisions of such a standard that it is established whether or not a presumption laid down in a directive applies to a given product.119 On the contrary, the Court of Justice declined to interpret acts of a monitoring committee in the context of an operational programme under EU regulations to promote European territorial cooperation between two Member States.120

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Notion of ‘acts’. Pursuant to Article 267 TFEU, the Court of Justice has jurisdiction to interpret the ‘acts’ of EU institutions, bodies, offices or agencies (‘institutions or bodies’). Unlike A rticle 263 TFEU, which defines the acts the legality of which can be reviewed by the Court of Justice (cf para 3.13), Article 267 TFEU does not set such a limitation on the jurisdiction of the Court of Justice in preliminary proceedings. In this regard, the Court of Justice has held that it has jurisdiction to give preliminary rulings on the validity and interpretation of ‘all acts of the institutions of the European Union without exception’,121 regardless of whether they are directly applicable122 or whether they are binding,123 since this may prove to be necessary in order to ensure the uniform

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reliminary rulings on the interpretation of the acts of the ECB pursuant to Art 234(1)(b) TEC. For an example of a p request for a preliminary ruling on the validity of an act of the European Council, see Case C-370/12 Pringle [EU:C:2012:756] paras 30–37. 116 Case C-152/83 Demouche and Others [EU:C:1987:421] para 19. 117 Throughout this book, the term ‘institution or body’ denotes any institution, body, office or agency of the Union within the meaning of Arts 263(1) and 265(1) TFEU, while the term ‘EU institution’ is reserved for institutions of the Union listed in Art 13(1) TEU. 118 M Broberg and N Fenger, Preliminary references to the European Court of Justice (Second Edition, Oxford University Press, Oxford, 2014) 115. 119 Case C-192/89 Sevince [EU:C:1990:322] para 10; Case C-188/91 Deutsche Shell [EU:C:1993:24] para 17; Case C-613/14 James Elliott Construction [EU:C:2016:821] para 34; Case C-630/16 Anstar [EU:C:2017:971] para 32. 120 Case C-562/12 Liivimaa Lihaveis [EU:C:2014:2229] paras 53–56. 121 Case C-322/88 Grimaldi [EU:C:1989:646] para 8; Case C-11/05 Friesland Coberco Dairy Foods [EU:C:2006:312] paras 35–36; Case C-137/08 VB Pénzügyi Lízing [EU:C:2010:659] para 38. 122 Case C-32/74 Haaga [EU:C:1974:116]; Case C-111/75 Mazzalai [EU:C:1976:68]; Case C-331/92 Gestión Hotelera Internacional [EU:C:1994:155] paras 11–14; Case C-373/95 Maso and Others [EU:C:1997:353] para 28; Case C-370/12 Pringle [EU:C:2012:756] para 89; Case C-416/10 Križan and Others [EU:C:2013:8] para 56. 123 Case C-188/91 Deutsche Shell [EU:C:1993:24] para 18; Case C-613/14 James Elliott Construction [EU:C:2016:821] para 35.

70 Preliminary Rulings on Interpretation application and interpretation of EU law. These thus comprise regulations, directives and decisions, as well as recommendations, opinions and other acts which do not produce legal effects124 (in contrast, actions for annulment may only be brought against acts which produce binding legal effects, cf Subsection 3.1.2.1. Binding Act). Acts which have been drafted but have not yet been formally adopted by the EU institutions or bodies do not qualify as ‘acts’ under Article 267 TFEU and therefore cannot be the subject matter of a request for a preliminary ruling.125 Conversely, an act which has been annulled by the Court of Justice can, in certain circumstances, be the subject matter of such a request. In particular, the Court of Justice has held that it had jurisdiction to interpret a provision of a directive, which it had previously annulled for breach of essential procedural requirements, whose effects had been retained until the Council had adopted a new directive, the latter having not yet been adopted.126 2.101

Examples. The following acts have been interpreted by the Court of Justice under Article 267 TFEU: regulations;127 directives,128 even though the implementation period had not yet expired;129 decisions;130 recommendations;131 communications;132 framework decisions;133 a framework agreement;134 the Statute of the Court of Justice of the European Union and the CJ RoP;135 the Rules of Procedure of the European Parliament;136 judgments of the Court of Justice,137 provided that their validity is not contested;138 international agreements concluded by the EU, since they form an integral part of the EU legal order from the date on which they enter into force;139 international agreements concluded by the EU and Member States by virtue of a joint competence;140 international agreements concluded by the Member States, where they 124 Art 288 TFEU. See Case C-113/75 Frecassetti [EU:C:1976:89]; Case C-90/76 Ufficio van Ameyde [EU:C:1977:101]; Case C-322/88 Grimaldi [EU:C:1989:646] para 9; Case C-188/91 Deutsche Shell [EU:C:1993:24] paras 16–19. 125 Case C-93/78 Mattheus [EU:C:1978:206] para 8; Case C-343/90 Lourenço Dias [EU:C:1992:327] para 18. 126 Case C-193/98 Pfennigmann [EU:C:1999:536] para 7. 127 Case C-324/09 L’Oréal and Others [EU:C:2011:474]; Joined Cases C-509/09 and C-161/10 eDate Advertising and Others [EU:C:2011:685]. 128 eg Joined Cases C-340/14 and C-341/14 Trijber and Harmsen [EU:C:2015:641]; Case C-168/14 Grupo Itevelesa and Others [EU:C:2015:685]. 129 Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [EU:C:2002:741] para 33. 130 Case C-461/15 E.ON Kraftwerke [EU:C:2016:648]. 131 Case C-322/88 Grimaldi [EU:C:1989:646]. 132 Case C-526/14 Kotnik and Others [EU:C:2016:570]. 133 Joined Cases C-404/15 and C-659/15 PPU Aranyosi [EU:C:2016:198]. 134 Case C-149/10 Chatzi [EU:C:2010:534] para 25. 135 Case C-62/72 Bollmann [EU:C:1973:24] para 2; Case C-472/99 Clean Car Autoservice [EU:C:2001:663]; Case C-137/08 VB Pénzügyi Lízing [EU:C:2010:659] paras 26–35. 136 Joined Cases C-200/07 and C-201/07 Marra [EU:C:2008:579]. 137 Case C-132/93 Steen [EU:C:1994:254]; Case C-466/00 Kaba [EU:C:2003:127]; Joined Cases C-581/10 and C-629/10 Nelson and Others [EU:C:2012:657]; Case C-35/11 Test Claimants in the FII Group Litigation [EU:C:2012:707]; Case C-42/17 M.A.S. and M.B. [EU:C:2017:936]; see also CJ RoP, Art 104(2). 138 It is not permissible to use the right to refer further questions to the Court of Justice as a means of contesting the validity of the judgment delivered previously, as this would call into question the allocation of jurisdiction as between national courts and the Court of Justice under Art 267 of the Treaty (order of 5 March 1986 in Case C-69/85 Wünsche [EU:C:1986:104] para 15). 139 Case C-181/73 Haegeman [EU:C:1974:41] paras 4–6; Case C-12/86 Demirel [EU:C:1987:400] para 7; Case C-344/04 IATA and ELFAA [EU:C:2006:10] para 36; Case C-533/08 TNT Express Nederland [EU:C:2010:243] para 60; Case C-63/09 Walz [EU:C:2010:251] para 20; Case C-180/11 Bericap [EU:C:2012:717] para 67; Case C-583/12 Sintax Trading [EU:C:2014:244] para 48; Joined Cases C-464/13 and C-465/13 Oberto and O’Leary [EU:C:2015:163] para 30; Case C-429/14 Air Baltic Corporation [EU:C:2016:88] para 23. 140 eg Case C-240/09 Lesoochranárske zoskupenie [EU:C:2011:125]; Case C-414/11 Daiichi Sankyo and Sanofi-Aventis Deutschland [EU:C:2013:520]. This may be necessary in order to define the obligations assumed by the EU (Joined Cases C-300/98 and C-392/98 Dior and Others [EU:C:2000:688] para 33), to ascertain whether it is contrary to EU law for a provision of such an international agreement to be given direct effect (Case C-431/05 Merck Genéricos – Produtos Farmacêuticos [EU:C:2007:496] paras 31–38) or to ensure that EU law is interpreted, as far as possible, in the light of the wording and purpose of that international agreement (Case C-245/02 Anheuser-Busch [EU:C:2004:717] paras 41–42).

Jurisdiction of the Court of Justice 71 acted in the interest and on behalf of the EU;141 international agreements initially concluded by Member States in relation to which the EU has assumed the Member States’ commitments in their entirety;142 the provisions of international agreements to which EU law specifically refers;143 the acts of bodies created by international agreements concluded by the EU;144 and a Memorandum of Understanding between the EU and one Member State on the granting of financial assistance.145 The Court of Justice, on the other hand, has declined to interpret national law (cf para 2.102);146 international agreements which bind Member States outside of the framework of EU law (cf para 2.105);147 international agreements concluded between Member States;148 international agreements concluded between Member States and third countries,149 unless the EU has assumed the powers previously exercised by the Member States in the field to which an international convention not concluded by the EU applies;150 the EEA agreement as regards its application in the EFTA States;151 and Treaties concluded by Member States prior to their accession to the EU which concern areas covered by EU law.152

2.2.3.3. Acts not Falling within the Interpretative Jurisdiction of the Court of Justice The Court of Justice does not interpret national law. In preliminary ruling proceedings, it is the national court which is responsible for defining the legal context in which arise the questions referred, and it is solely for the national court to rule on the interpretation of national law, even if the provisions of national law implement EU law.153 This bears a number of consequences.

141 Case C-439/01 Cipra and Kvasnicka [EU:C:2003:31] paras 23–24. 142 eg Joined Cases C-267 to C-269/81 SPI and SAMI [EU:C:1983:78] paras 12–20; Joined Cases C-290/81 and C-291/81 Singer and Geigy [EU:C:1983:79] para 7. 143 Case C-481/13 Qurbani [EU:C:2014:2101] para 28. See, however, Case C-44/84 Hurd [EU:C:1986:2] para 21. 144 Case C-30/88 Greece v Commission [EU:C:1989:422] para 13; Case C-192/89 Sevince [EU:C:1990:322] para 15; Case C-262/96 Sürül [EU:C:1999:228]; Case C-188/91 Deutsche Shell [EU:C:1993:24] paras 16–19; Case C-364/92 SAT Fluggesellschaft [EU:C:1994:7]. 145 Case C-258/14 Florescu and Others [EU:C:2017:448]. 146 eg Case C-24/64 Dingemans [EU:C:1964:86]; Case C-7/11 Caronna [EU:C:2012:396] para 54; Case C-463/11 L [EU:C:2013:247] para 29; Order of 7 May 2015 in Case C-608/14 Pondiche [EU:C:2015:313] para 25. 147 eg Case C-130/73 Vandeweghe and Others [EU:C:1973:131] para 2; Order of 10 May 2012 in Case C-134/12 Corpul Naţional al Poliţiştilor [EU:C:2012:288]; Order of 5 February 2015 in Case C-451/14 Petrus [EU:C:2015:71]; Order of 25 February 2016 in Case C-520/15 Aiudapds [EU:C:2016:124] para 22. 148 eg Case C-28/68 Torrekens [EU:C:1969:17] para 6. The mere fact that such agreements are linked to the EU and to the functioning of its institutions or bodies does not mean that they must be regarded as an integral part of EU law (Case C-44/84 Hurd [EU:C:1986:2] para 20; Case C-216/01 Budějovický Budvar [EU:C:2003:618] para 47). It is only the fact that the provisions of such agreements are adopted jointly by Member States that distinguishes them from other legislation which Member States may enact individually and the interpretation of which falls outside the Court’s jurisdiction to give preliminary rulings (Order in Case C-162/98 Hartmann [EU:C:1998:539] paras 9–14). 149 Case C-481/13 Qurbani [EU:C:2014:2101] para 22. 150 Joined Cases C-21/72 to C-24/72 International Fruit Company and Others [EU:C:1972:115] para 18; Case C-130/73 Vandeweghe and Others [EU:C:1973:131] para 2; Case C-533/08 TNT Express Nederland [EU:C:2010:243] paras 61–62; Order of 12 November 1998 in Case C-162/98 Hartmann [EU:C:1998:539] para 9; Case C-308/06 The International Association of Independent Tanker Owners and Others [EU:C:2008:312] para 48; Case C-301/08 Bogiatzi [EU:C:2009:649] paras 24–25. 151 Case 300/01 Salzmann [EU:C:2003:283] para 66. 152 eg Case C-13/93 Minne [EU:C:1994:39] paras 17–18. 153 Case C-416/10 Križan and Others [EU:C:2013:8] para 58; Order of 7 October 2013 in Case C-82/13 Società cooperativa Madonna dei miracoli [EU:C:2013:655] para 15; Order of 7 May 2015 in Case C-608/14 Pondiche [EU:C:2015:313] para 26; Case C-332/15 Astone [EU:C:2016:614] para 24; Case C-619/17 Diego Porras [EU:C:2018:936] para 80.

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72 Preliminary Rulings on Interpretation First, the Court of Justice will not investigate the national court’s own jurisdiction under national law to conduct the proceedings in issue or make a reference, as long as the EU law requirements are prima facie met.154 Secondly, when hearing a reference for a preliminary ruling from a national court, the Court of Justice must base its reasoning on the interpretation of national law as described to it by that court.155 Since the Court of Justice interprets EU law exclusively, any changes in national legislation after the order making the reference cannot influence the interpretation of EU law provided by it.156 Thirdly, the Court of Justice does not question or verify the accuracy of the interpretation of national law provided in the order for reference.157 That said, the Court of Justice must, in order for its ruling to be useful to the referring body, have a correct understanding of the applicable national legal framework. It follows that, when it entertains doubts with regard to the correct interpretation of national law which is provided in the order for reference, in particular in view of the submissions of interested parties, the Court of Justice sometimes requests clarification from the referring court or tribunal.158 The Court of Justice may also, prior to its actual reasoning, provide an account of the diverging interpretations which have been set before it, while always leaving it for the referring court to determine, in the case before it, what the correct interpretation of national law is.159 2.103

The Court of Justice does not ascertain the extent to which the relevant national provision is likely to apply to the main proceedings. In preliminary ruling proceedings, it is not for the Court of Justice to specify the relevant provisions of national law applicable to the main proceedings. That is the prerogative of the court making the reference.160 It is also solely for the national court to ascertain the extent to which the national provisions contained in the order for reference are likely to apply to the main proceedings.161 Where a party submits, in the course of the proceedings, that the description of national law contained in the order for reference is incorrect, incomplete or not up-to-date, the Court of Justice will invariably decline to rule on matters relating to the applicability of national law.162

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The Court of Justice does not rule on the compatibility of national law with EU law. Unlike in infringement proceedings brought under Article 258 TFEU (cf Chapter 2.1), in preliminary ruling cases the Court of Justice does not rule upon the compatibility of provisions of national law with EU law.163 That competence belongs to the national courts, if necessary, after obtaining from the Court of Justice, by way of a reference for a preliminary ruling, such clarification as may

154 Case C-65/81 Reina [EU:C:1982:6] para 7; Case C-10/92 Balocchi [EU:C:1993:846] para 16; Case C-39/94 SFEI and Others [EU:C:1996:285] para 24; Case C-143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke [EU:C:2001:598] para 19; Case C-621/18 Wightman and Others [EU:C:2018:999] para 30. 155 Case C-409/06 Winner Wetten [EU:C:2010:503] para 35; Case C-467/08 Padawan [EU:C:2010:620] para 22; Case C-212/10 Logstor ROR Polska [EU:C:2011:404] para 30. 156 Case C-83/92 Pierrel and Others [EU:C:1993:915] para 32. 157 Joined Cases C-204/12 to C-208/12 Essent Belgium [EU:C:2014:2192] para 53. 158 CJ RoP, Art 101(1). See, eg Joined Cases C-436/08 and C-437/08 Haribo [EU:C:2011:61] para 19; Case C-565/11 Irimie [EU:C:2013:250] para 13; Case C-347/12 Wiering [EU:C:2014:300] para 14; Case C-514/12 Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken Betriebs [EU:C:2013:799] para 20; Case C-588/12 Lyreco Belgium [EU:C:2014:99] para 26; Case C-168/14 Grupo Itevelesa and Others [EU:C:2015:685] para 59. 159 Joined Cases C-188/10 and C-189/10 Melki and Abdeli [EU:C:2010:363] para 49. 160 Case C-284/06 Burda [EU:C:2008:365] para 39. 161 Case C-24/64 Dingemans [EU:C:1964:86]; Case C-7/11 Caronna [EU:C:2012:396] para 54; Case C-463/11 L [EU:C:2013:247] paras 28–29; Order of 7 May 2015 in Case C-608/14 Pondiche [EU:C:2015:313] para 25; Case C-416/10 Križan and Others [EU:C:2013:8] para 54. 162 Case C-153/02 Neri [EU:C:2003:614] paras 33–34. 163 Case C-100/63 van der Veen [EU:C:1964:65]; Case C-151/02 Jaeger [EU:C:2003:437] para 43; Case C-237/04 Enirisorse [EU:C:2006:197] para 24.

Jurisdiction of the Court of Justice 73 be necessary on the scope and interpretation of EU law.164 The Court of Justice has, however, repeatedly held that it is competent to give the national court full guidance on the interpretation of EU law in order to enable it to determine the issue of compatibility for the purposes of the case before it.165 In practice, national courts frequently request the Court of Justice to provide a ruling on the compatibility of a national provision with EU law, for which it has no jurisdiction. Bearing in mind the spirit of cooperation between the Court of Justice and national courts, the Court of Justice, in such an instance, rather than issuing a decision stating that it has no jurisdiction to provide a ruling on interpretation, will reformulate the questions referred and limit its analysis to the provisions of EU law, and provide an interpretation of them which will be of use to the national court, which has the task of determining the compatibility of the provisions of national law with EU law for the purposes of deciding the dispute before it (cf para 2.154).166 The Court of Justice does not interpret international law outside the framework of EU law. The Court of Justice has consistently held that it has no jurisdiction to give a ruling on the interpretation of provisions of international law which bind Member States outside the framework of EU law.167 It is only where and insofar as the EU has assumed the powers previously exercised by the Member States in the field to which an international convention not concluded by the EU applies that the Court has jurisdiction to interpret such a convention (cf para 2.101).168 The Court of Justice has therefore, for instance, declined to interpret the ECHR or the protocols thereto,169 provisions of the Geneva Convention Relating to the Status of Refugees, in the absence of any referral thereto by EU law provisions,170 and Geneva Convention No 158, concerning the termination of employment at the initiative of the employer or the European Social Charter.171

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The Court of Justice may not interpret the Charter of Fundamental Rights in isolation. According to Article 6(1) TEU, the provisions of the Charter of Fundamental Rights are not to extend in any way the competences of the EU as defined in the Treaties. Furthermore, pursuant to Article 51(1) of the Charter, its provisions are addressed to the Member States only when they are implementing EU law. In this regard, the concept of ‘implementing EU law’, as referred to in this provision, requires a certain degree of connection above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other.172 It is necessary to determine, inter alia, whether that national legislation is intended to implement a provision of EU law; the nature of the legislation at issue and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and whether there are

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164 Case C-347/87 Triveneta Zuccheri and Others v Commission [EU:C:1990:129] para 16; Case C-467/08 Padawan [EU:C:2010:620] para 62. 165 Case C-292/92 Hünermund and Others [EU:C:1993:932] para 8; Case C-237/04 Enirisorse [EU:C:2006:197] para 24; Case C-419/13 Art & Allposters International [EU:C:2015:27] paras 22–23; Case C-567/13 Baczó and Vizsnyiczai [EU:C:2015:88]; Case C-416/14 Fratelli De Pra and SAIV [EU:C:2015:617] para 27. 166 Case C-380/05 Centro Europa 7 [EU:C:2008:59] paras 48–51. 167 Case C-130/73 Vandeweghe and Others [EU:C:1973:131] para 2; Case C-533/08 TNT Express Nederland [EU:C:2010:243] para 22; Order of 25 February 2016 in Case C-520/15 Aiudapds [EU:C:2016:124] para 22. 168 Case C-533/08 TNT Express Nederland [EU:C:2010:243] para 62. 169 Joined Cases C-60/84 and C-61/84 Cinéthèque and Others [EU:C:1985:329] para 26; Order of 10 May 2012 in Case C-134/12 Corpul Naţional al Poliţiştilor [EU:C:2012:288] para 14; Case C-523/12 Dirextra Alta Formazione [EU:C:2013:831] para 20; Order of 5 February 2015 in Case C-451/14 Petrus [EU:C:2015:71] para 15; Order of 25 February 2016 in Case C-520/15 Aiudapds [EU:C:2016:124] para 22. 170 Case C-481/13 Qurbani [EU:C:2014:2101] para 28. 171 Case C-117/14 Nisttahuz Poclava [EU:C:2015:60] para 43. 172 Case C-206/13 Siragusa [EU:C:2014:126] para 24.

74 Preliminary Rulings on Interpretation specific rules of EU law on the matter or rules which are capable of affecting it.173 Where a legal situation does not come within the scope of EU law, the Court of Justice does not have jurisdiction to rule on it, and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction.174 Where the request for a preliminary ruling does not contain any concrete information indicating the reasons why the interpretation sought concerns any other EU provision other than those of the Charter, the reference will be declared inadmissible (cf para 2.151).175 2.107

The Court of Justice does not establish facts. The Court of Justice has jurisdiction to rule on the interpretation of EU law provisions only on the basis of the facts which the national court puts before it. The parties to a case cannot therefore call into question the factual context of the case in the main proceedings, as it appears in the order for reference. It is for the national court alone, and not to the Court of Justice, to ascertain the facts which have given rise to the dispute176 and to establish the consequences they have for the judgment which it is required to deliver.177 The Court of Justice does not verify whether such facts are correct178 and it cannot settle a disagreement relating to the appreciation of the facts. Indeed, in the context of proceedings under Article 267 TFEU, which is based on a clear separation of functions between the national courts and the Court of Justice, such an appreciation, like any other assessment of the facts involved, is within the province of the national court.179 The Court of Justice therefore cannot modify the factual basis in the light of the parties’ submissions before the Court of Justice,180 though it is entitled to take into account such submissions in order to clarify or complete factual matters which are not fully dealt with in the order for reference. In such a case, the Court of Justice usually declines to provide statements on said parties’ submissions. Furthermore, any allegedly incorrect factual findings made by the national court have no bearing on the admissibility of the reference for a ruling.181 It must be noted, however, that the qualification under EU law of facts established by a national court involves the interpretation of EU law for which the Court of Justice has jurisdiction.182

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The Court of Justice does not apply EU law to a particular case. One of the essential characteristics of the system instituted by Article 267 TFEU is that the Court of Justice replies in rather abstract and general terms to a question on the interpretation of EU law referred to it, while it is for the referring court to give a ruling in the dispute before it, taking into account the Court’s reply.183 When it gives an interpretation of EU law in a pending case before a national court, the

173 Case C-198/13 Julián Hernández and Others [EU:C:2014:2055] para 37. 174 Case C-617/10 Åkerberg Fransson [EU:C:2013:105] paras 22–23; C-265/13 Torralbo Marcos [EU:C:2014:187] para 30; Case C-483/12 Pelckmans Turnhout [EU:C:2014:304] para 17; Order of 25 February 2016 in Case C-520/15 Aiudapds [EU:C:2016:124] paras 19–20. 175 CJ RoP, Art 94; Order of 11 December 2014 in Case C-282/14 Stylinart [EU:C:2014:2486] para 20. 176 Case C-17/81 Pabst & Richarz [EU:C:1982:129] para 12; Case C-318/98 Fornasar and Others [EU:C:2000:337] paras 25–33; Case C-419/04 Conseil général de la Vienne [EU:C:2006:419] para 19; Order of 7 October 2013 in Case C-82/13 Società cooperativa Madonna dei miracoli [EU:C:2013:655] paras 13–14. 177 Case C-30/93 AC-ATEL Electronics Vertriebs [EU:C:1994:224] para 17; Case C-107/98 Teckal [EU:C:1999:562] para 30. 178 Case C-104/77 Oehlschläger [EU:C:1978:69] para 4. 179 Case C-104/77 Oehlschläger [EU:C:1978:69] para 4; Case C-235/95 Dumon and Froment [EU:C:1998:365] para 25; Case C-4/15 Argos Supply Trading [EU:C:2016:580] paras 29–30. 180 Case C-30/93 AC-ATEL Electronics Vertriebs [EU:C:1994:224] para 16. 181 Case C-364/92 SAT Fluggesellschaft [EU:C:1994:7] para 13. 182 Case C-312/14 Banif Plus Bank [EU:C:2015:794] para 51–52; Case C-434/15 Asociación Profesional Elite Taxi [EU:C:2017:981] para 20. 183 Case C-162/06 International Mail Spain [EU:C:2007:68124] para 24; Case C-14/09 Genc [EU:C:2010:57] para 31; Case C-413/17 Roche Lietuva [EU:C:2018:865] para 43. See also Recommendations to national courts and tribunals, in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1) para 11.

Admissibility of the Reference 75 Court of Justice limits itself to the interpretation of EU rules, while it is for the national court to apply in the particular case the rules which are thus interpreted. It may nonetheless, on the basis of the material presented to it, provide the national court with an interpretation of EU law which is useful to it in assessing the effects of that provision. Thus, while the Court of Justice gives rulings formulated in abstract terms, it must take account of the factual circumstances of the case in order to provide a ruling which is useful to the referring body. In an attempt to provide as specific and tailor-made a guidance to the national court as possible, the Court of Justice has sometimes made specific findings regarding the application of EU law to particular cases, especially where it has sufficient elements before it to carry out such a determination. Such findings are nonetheless always made subject to verification by the referring court.184

2.2.4. Admissibility of the Reference 2.2.4.1 Admissibility of the Reference – Features of the Referring Body Overview. The mere fact that a question of interpretation of EU law is raised before a national body does not necessarily empower the latter to request a preliminary ruling from the Court of Justice. Indeed, it follows from the wording of Article 267(2) TFEU that the body making a preliminary reference must be a ‘court or tribunal of a Member State’. Neither Article 267 TFEU nor the other provisions of the Treaties define what constitutes such a court or tribunal. Nor has the Court of Justice provided in its case law a formal definition of what constitutes a court or tribunal for the purposes of applying Article 267 TFEU. Instead, it has laid down a series of criteria that it takes into account in order to determine whether the referring body fulfils this requirement. The approach of the Court of Justice has been pragmatic, seeking to preserve uniformity in the application of EU law. Such an approach has drawn criticism, the case law of the Court of Justice having been considered to be ‘too flexible and not sufficiently consistent, with the lack of legal certainty which that entails’, as well as ‘casuistic, very elastic and not very scientific’.185 It has nonetheless been reaffirmed many times since.

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(i) The Notion of ‘Court or Tribunal’ for the Purposes of Article 267 TFEU The qualification as a ‘court or tribunal’ is determined on the basis of EU law. The Court of Justice has consistently held that the question of whether the referring body constitutes a court or tribunal within the meaning of Article 267 TFEU is a question governed exclusively by EU law.186 Consequently, the fact that the referring body may be regarded as a court or tribunal under national law or, on the contrary, is regarded as an administrative body is not, in itself, conclusive for the purpose of the Court of Justice’s assessment.187 The Court of Justice determines the status of the referring body on the basis of criteria relating to both its constitution and its function, taking care to consider the particular legal context in which the body seeks a ruling from the

184 See, eg Case 75/15 Viiniverla [EU:C:2016:35] para 40; Case C-375/14 Laezza [EU:C:2016:60] para 44; Case C-438/14 Bogendorff von Wolffersdorff [EU:C:2016:401] para 84. 185 Opinion of AG Colomer in Case C-17/00 François de Coster [EU:C:2001:651] paras 14 and 58. 186 As initially stated in Case C-61/65 Vaassen-Göbbels [EU:C:1966:39] at p. 273, the expression ‘court or tribunal’, contained in this provision, may therefore include bodies other than ordinary courts of law. 187 Case C-203/14 Consorci Sanitari del Maresme [EU:C:2015:664] para 17.

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76 Preliminary Rulings on Interpretation Court.188 Needless to say, the qualification of the referring body under national law is also taken into account by the Court of Justice when it makes its assessment as to the admissibility of the reference.189 2.111

The qualification as a ‘court or tribunal of a Member State’ can be made ex officio. It is for the Court of Justice to consider, with a view to confirming its own jurisdiction, whether the request for a preliminary ruling is brought before it by a court or tribunal of a Member State.190 In practice, however, the Court of Justice does not, of its own motion, systematically address the issue of whether the referring body is a court or tribunal of a Member State for the purposes of Article 267 TFEU. In many instances, such a verification does not appear necessary. This may be the case where it is manifest that the referring body qualifies as such a court or tribunal because it forms part of the judicial organisation of a Member State and is acting in a judicial capacity. However, it may occur that the Court of Justice entertains doubts in that respect, either in view of the legal framework addressed in the order for reference191 or following written submissions by the parties questioning the admissibility of the reference.192 In such a case, it may seek clarifications from the referring body, or address questions to the government of the Member State concerned.193

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The Court of Justice has provided a non-exhaustive list of criteria for this assessment. In order to determine whether the body making a reference is a court or tribunal for the purposes of Article 267 TFUE, the Court of Justice takes account, according to the formula it used in its seminal Dorsch Consult judgment, of a cluster of different factors ‘such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent’.194 As appears from the expression ‘as such’ used by the Court of Justice, the criteria listed above are not limitative. Other factors which have been taken into consideration by the Court of Justice in its assessment include the necessity to ensure the effectiveness of the preliminary ruling mechanism195 and the absence of any alternative judicial means of resolving the dispute in question;196 or, on the contrary, the circumstance that the decision is itself subject to judicial appeals before a higher court, which ensures the effectiveness of the preliminary ruling mechanism and the uniform interpretation of EU law,197 the fact that the Court of Justice has in the past confirmed the status as a ‘court or tribunal’ of other national bodies that are in essence comparable to the referring body198 or the non-binding character of the decisions rendered by the referring body.199 188 Case C-394/11 Belov [EU:C:2013:48] para 40. See also Opinion of AG Bot in Case C-222/13 TDC [EU:C:2014:1979] para 24. 189 For example, in Case C-377/13 Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta [EU:C:2014:1754] para 24, the Court of Justice took into account that arbitration tribunals were included in the list of national courts provided in the Portuguese Constitution. 190 Case C-65/81 Reina [EU:C:1982:6] para 7. 191 See, eg Order of 17 July 2014 in Case C-427/13 Emmeci [EU:C:2014:2121] paras 23–24. 192 See, eg Order 14 November 2013 in Case C-49/13 MF 7 [EU:C:2013:767] para 24. 193 See, eg Case C-222/13 TDC [EU:C:2014:2265] para 33. 194 Case C-54/96 Dorsch Consult [EU:C:1997:413] para 23; Case C-53/03 Syfait and Others [EU:C:2005:333] para 29; Cases C-58/13 and C-59/13 Torresi [EU:C:2014:2088] para 17; Case C-396/14 MT Højgaard and Züblin [EU:C:2016:347] para 23. This test is also formulated in the Court of Justice’s Recommendations to national courts and tribunals, in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1) para 4. 195 Case C-246/80 Broekmeulen [EU:C:1981:218] paras 16–17; Case C-394/11 Belov [EU:C:2013:48] para 52. 196 Indeed, the lack of an appeal at national level may lead the referring body to have to settle an EU law issue: see Case C-61/65 Vaassen-Göbbels [EU:C:1966:39]. 197 Case C-394/11 Belov [EU:C:2013:48] para 52. 198 Case C-203/14 Consorci Sanitari del Maresme [EU:C:2015:664] para 26; Case C-283/11 Sky Österreich [EU:C:2013:28] para 28; Case C-292/15 Hörmann Reisen [EU:C:2016:817] paras 28–29. 199 Order of 17 July 2014 in Case C-427/13 Emmeci [EU:C:2014:2121] para 30.

Admissibility of the Reference 77 The referring body has a legal origin. In order to determine whether a referring body is a court or tribunal for the purposes of Article 267 TFEU, the Court of Justice takes account of the circumstance that said body has been established by law and that its jurisdiction stems directly from legal provisions. According to the case law of the Court of Justice, the jurisdiction of the referring body should not be subject to the prior expression of the parties’ will,200 which appears to exclude dispute resolution bodies put in place by private parties. This criterion is not absolute. Thus, in Broekmeulen v Huisarts Registratie Commissie,201 the referring body was an Appeals Committee, whose composition, function and procedure all derived from the statutes and internal rules of a private association. Nevertheless, the Court of Justice, taking account of the existence of government supervision over the composition, function and procedure of the Appeals Committee, considered that the reference was admissible, since it found it imperative, in order to ensure the proper functioning of EU law, that the Court of Justice should have an opportunity of ruling on issues of interpretation and validity arising out of such proceedings.

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The referring body is permanent. The referring body must have a permanent existence.202 This criterion, which appears to be of particular significance with regard to arbitration tribunals, was specifically addressed in Merck Canada.203 In that case, the referring body was a Portuguese arbitration tribunal that could vary in form, composition and rules of procedure according to the choice of the parties. Moreover, it was dissolved after making its decision, which cast doubts as to its permanence. However, the Court of Justice, taking account of the fact that such a tribunal was established on a legislative basis and had permanent compulsory jurisdiction, and that national legislation defined and framed the applicable procedural rules, found that the requirement of permanence was also met. In Ascendi,204 which also concerned an arbitration tribunal, the Court of Justice held that even though the composition of the trial formations of a tax arbitration tribunal was ephemeral and their activity ended once they had made their ruling, the fact remained that, as a whole, the said tax arbitration tribunal was permanent in nature.

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The jurisdiction of the referring body is compulsory. The Court of Justice takes account of the circumstance that the jurisdiction of the referring body is compulsory, ie either party must be allowed to bring a case before the referring body irrespective of the objections of the other.205 This element is generally lacking in contractual arbitration, since the contracting parties are generally under no obligation to refer their disputes to arbitration and may bring proceedings before the competent judicial authorities.206 The jurisdiction of the Court of Justice thus depends on the nature of the arbitration in question.207 In Emmeci,208 the Court of Justice considered that where the parties do not legally have an obligation to submit their dispute to the referring body and where the applicant is free to act directly before the competent judicial authorities, the jurisdiction of the referring body is facultative, rendering the reference inadmissible.

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200 Case C-377/13 Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta [EU:C:2014:1754] paras 27–29. 201 Case C-246/80 Broekmeulen [EU:C:1981:218] paras 16–17; Case C-102/81 Nordsee [EU:C:1982:107] paras 11–12. 202 Case C-54/96 Dorsch Consult [EU:C:1997:413] para 26. 203 Order of 13 February 2014 in Case C-555/13 Merck Canada [EU:C:2014:92] para 24. 204 Case C-377/13 Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta [EU:C:2014:1754] para 26. 205 To that effect, see Opinion of AG Jacobs in Case C-195/98 Österreichischer Gewerkschaftsbund [EU:C:2000:50] para 39. 206 Case C-125/04 Denuit and Cordenier [EU:C:2005:69] para 13; Order of 13 February 2014 in Case C-555/13 Merck Canada [EU:C:2014:92] para 17; Case C-337/13 Almos Agrárkülkereskedelmi [EU:C:2014:328] para 27. 207 Case C-102/81 Nordsee [EU:C:1982:107] para 9. 208 Order of 17 July 2014 in Case C-427/13 Emmeci [EU:C:2014:2121] paras 27–29.

78 Preliminary Rulings on Interpretation In Merck Canada,209 the Court of Justice held admissible preliminary questions referred to it by an arbitration tribunal, where that tribunal had been established by law, its decisions were binding on the parties and its jurisdiction did not depend on their agreement. In Ascendi,210 the Court of Justice also held that a tax arbitration tribunal, whose decisions were binding on the parties, had to be distinguished from an arbitration tribunal in the strict sense, in particular because its jurisdiction stemmed directly from legal provisions and, as a result, was not subject to the prior expression of the parties’ will to submit their dispute to arbitration. The question as to whether the jurisdiction of the referring body is compulsory also specifically arises where two separate ways can be followed by a party in order to resolve a dispute, ie refer the matter at issue to the referring body or directly before courts of the judiciary.211 In Consorci Sanitari del Maresme,212 the Court of Justice considered that, even where the referring body’s jurisdiction is optional (in the case at issue, a person bringing proceedings in a public procurement case was entitled to choose between a special appeal to the referring body and an administrative-law action), the criterion of compulsory jurisdiction is satisfied where the decisions of the referring body, whose jurisdiction does not depend on the parties’ agreement, are binding on the parties and that primary responsibility for ensuring that EU public procurement law is observed lies with the referring body. In MT Højgaard and Züblin, Advocate General Mengozzi also observed that the fact that the referring body has exclusive jurisdiction only during a ‘standstill’ period and that, at the end of that period, its jurisdiction becomes alternative to that of the courts did not appear to cast doubt on its status as a court or tribunal. This was because it was clear from the case law that the existence of an alternative remedy to court proceedings does not necessarily mean that the body offering that alternative remedy cannot be regarded as a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU, provided that the decision of the referring body is binding and that the body in question is established by law and its jurisdiction is independent of the wishes of the parties.213 In its judgment, the Court of Justice did not specifically address the issue, simply stating that there was ‘no indication in the file submitted to the Court that the referring body does not meet the criteria relating to whether the [body’s jurisdiction] is compulsory’.214 In Holunga, the Court of Justice held that an institutional arbitration tribunal did not fulfil the criterion relating to its compulsory jurisdiction since said jurisdiction expressly depended on the will of the parties.215 2.116

The procedure before the referring body is adversarial or ‘inter partes’. The Court of Justice takes into account that the referring body takes its decision following adversarial proceedings, in which the opposing parties may assert their legally protected rights and interests.216

209 Order of 13 February 2014 in Case C-555/13 Merck Canada [EU:C:2014:92] para 18; Case C-337/13 Almos Agrárkülkereskedelmi [EU:C:2014:328] para 28. 210 Case C-377/13 Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta [EU:C:2014:1754] paras 27–29. See also Case C-125/04 Denuit and Cordenier [EU:C:2005:69] para 13; Order of 13 February 2014 in C-555/13 Merck Canada [EU:C:2014:92] para 17. 211 See, eg Case C-222/13 TDC [EU:C:2014:2265] para 19, where the Commission expressed doubts regarding the qualification of the Danish Teleklagenævnet as a court or tribunal, since the latter heard appeals against the decisions of the Danish Business Authority, which could also be heard by ordinary courts. The Court of Justice did not address this issue specifically, since the Teleklagenævnet did not satisfy the criterion relating to independence. 212 Case C-43/71 Politi [EU:C:1971:122] para 5; Order of 18 June 1980 in Case C-138/80 Borker [EU:C:1980:162] para 4; Case C-246/80 Broekmeulen [EU:C:1981:218] para 17; Case C-203/14 Consorci Sanitari del Maresme [EU:C:2015:664] paras 22–25. 213 Opinion of AG Mengozzi in Case C-396/14 MT Højgaard and Züblin [EU:C:2015:774] paras 32–33. 214 Case C-396/14 MT Højgaard and Züblin [EU:C:2016:347] para 24. 215 Order of 13 December 2018 in Case C-370/18 Holunga [EU:C:2018:1011] para 19. 216 Opinion of AG Colomer in Case C-17/00 De Coster [EU:C:2001:366] para 29.

Admissibility of the Reference 79 The adversarial nature of the proceedings does not, however, constitute a condition sine qua non for the admissibility of a reference for a preliminary ruling, the Court of Justice having held that this criterion is not absolute, especially where the right of the parties to be heard is safeguarded before any determination is made.217 A question may therefore be referred for a preliminary ruling even if there is no debate.218 The decisive factor, therefore, is that the body seeking the help of the Court of Justice is exercising the functions of a court or tribunal, and considers that an interpretation of EU law is essential for it to reach a decision.219 In this regard, the Court of Justice held that a reference for preliminary ruling from a national court or tribunal in the context of an appeal in cassation in the interest of the law is admissible, even though the situation between the parties to the dispute giving rise to the request for a preliminary ruling can no longer be altered as a result of that request.220 That said, in Simmenthal221 and Ligur Carni,222 the Court of Justice stated that it may prove to be in the interests of the proper administration of justice that a question should be referred for a preliminary ruling only after both sides have been heard. The referring body applies the rules of law. This criterion relates to the fact that the referring body, in its decision, applies the rules of law, rather than, for instance, principles of fairness.223 In Dorsch Consult,224 the Court of Justice noted in this regard that the fact that a referring body is governed by rules of procedure which it itself adopts, which do not take effect in relation to third parties and which are not published, is not necessarily relevant where that body is required to apply the provisions of EU law and of domestic regulations adopted to transpose EU law, and where general procedural requirements, such as the duty to hear the parties, to make determinations by an absolute majority of votes and to give reasons for them, are laid down in acts published in the official journal of the Member State. In Almelo,225 the Court of Justice had to decide whether it had jurisdiction under Article 267 TFEU to provide a ruling following a request by a national court that determined an appeal against an arbitration award if, under the arbitration agreement made between the parties, the court had to give judgment ‘according to what appears fair and reasonable’. The Court of Justice held in that regard that a national court which, in a case provided for by law, determines an appeal against an arbitration award must be regarded as a court or tribunal within the meaning of Article 267 TFEU, even if under the terms of the arbitration agreement made between the parties that court must give judgment according to what appears fair and reasonable. To support this view, the Court of Justice relied on the fact that said court must observe the rules of EU law.

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The referring body is independent. The concept of independence being inherent to the task of adjudication, the Court of Justice, when having to establish whether the referring body is a court or tribunal within the meaning of Article 267 TFEU, has paid significant attention to this criterion. In this regard, the Court has repeatedly held that the concept of independence

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217 Case C-54/96 Dorsch Consult [EU:C:1997:413] para 31; Case C-17/00 De Coster [EU:C:2001:651] para 14; Case C-579/17 Gradbeništvo Korana [EU:C:2019:162] para 34. 218 Case C-43/71 Politi [EU:C:1971:122] para 31; Case C-162/73 Birra Dreher [EU:C:1974:17] para 2. 219 Opinion of AG Colomer in Case C-17/00 De Coster [EU:C:2001:366] para 30. 220 Case C-678/18 Procureur-Generaal bij de Hoge Raad der Nederlanden [EU:C:2019:998]. 221 Case C-70/77 Simmenthal [EU:C:1978:139] para 10. 222 Joined Cases C-277/91, C-318/91 and C-319/91 Ligur Carni and Others [EU:C:1993:927] para 16. 223 See Opinion of AG Mayras in Case C-36/73 Nederlandse Spoorwegen [EU:C:1973:114] 1320; Opinion of AG Jacobs in Case C-195/98 Österreichischer Gewerkschaftsbund [EU:C:2000:50] para 39. 224 Case C-54/96 Dorsch Consult [EU:C:1997:413] paras 32–33. 225 Case C-393/92 Almelo [EU:C:1994:171] paras 21–24.

80 Preliminary Rulings on Interpretation encompasses two aspects.226 (i) The first aspect, which is external, entails that the body is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them.227 In this respect, the referring body must carry out its functions in a wholly independent manner, not occupying a hierarchical or subordinate position in relation to any other body and not taking orders or instructions from any source whatsoever.228 In Corbiau,229 the Court of Justice considered that this was not the case if the referring body has a clear organisational link with the departments which had made the disputed assessment, against which the complaint submitted to the referring body was directed. In Nidera Handelscompagnie,230 the Lithuanian Government stated that the Tax Disputes Commission formed part of the organisational structure of the Lithuanian Ministry of Finance, to which it was required to submit annual reports and with which it was obliged to cooperate. In spite of these circumstances, the Court of Justice held that said Commission did have the necessary independence for it to be regarded as a court or tribunal within the meaning of Article 267 TFEU, since the existence of such a general obligation of cooperation was not incompatible with the independence of that Commission from that Ministry. In Syfait,231 the Court of Justice declined to qualify the Greek Competition Commission as a court or tribunal within the meaning of Article 267 TFEU, in particular because that Commission, the decision-making body, was organisationally linked to its secretariat, which was responsible for fact-finding. Therefore, that Commission was not a clearly distinct third party in relation to the State body (the secretariat), which, by virtue of its role, could be akin to a party in the course of competition proceedings. (ii) The second aspect, which is internal, is linked to impartiality and seeks to ensure a level playing field for the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law.232 The Court of Justice thus held that the referring body must act as a third party in relation to the authority which adopted the decision challenged in the main proceedings.233 It should also not be involved in proceedings challenging its own decision.234 That was particularly the case in TDC,235 where the Court of Justice noted that if an appeal was made against the decision of the referring body, the latter would have the status of a defendant. The Court of Justice has also emphasised that the guarantees of independence and impartiality require rules – particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members – in order

226 Case C-222/13 TDC [EU:C:2014:2265] paras 30–32; Order of 16 November 2017 in Case C-476/16 Air Serbia and Kondić [EU:C:2017:874] para 17. 227 Case C-506/04 Wilson [EU:C:2006:587] para 51; Joined Cases C-58/13 and C-59/13 Torresi [EU:C:2014:2088] para 18. 228 Case C-203/14 Consorci Sanitari del Maresme [EU:C:2015:664] para 19. 229 Case C-24/92 Corbiau [EU:C:1993:118] paras 1 and 16. 230 Case C-385/09 Nidera Handelscompagnie [EU:C:2010:627] paras 36–39. 231 Case C-53/03 Syfait and Others [EU:C:2005:333] para 33. In his Opinion, Advocate General Jacobs had considered that the referring body was sufficiently judicial in character to qualify as a court or tribunal for the purposes of Art 267 TFEU: Opinion of AG Jacobs in Case C-53/03 Syfait and Others [EU:C:2004:673] para 32. 232 Case C-506/04 Wilson [EU:C:2006:587] para 52. 233 Case C-24/92 Corbiau [EU:C:1993:118] para 15; Case C-506/04 Wilson [EU:C:2006:587] para 49; Case C-517/09 RTL Belgium [EU:C:2010:821] para 38; Case C-363/11 Epitropos tou Elegktikou Sinedriou [EU:C:2012:825] para 20; Case C-203/14 Consorci Sanitari del Maresme [EU:C:2015:664] para 19. 234 Case C-24/92 Corbiau [EU:C:1993:118] para 16; Case C-517/09 RTL Belgium [EU:C:2010:821] para 47; Order of 28 November 2013 in Case C-167/13 Devillers [EU:C:2013:804] para 19; Case C-222/13 TDC [EU:C:2014:2265] para 37. 235 Case C-222/13 TDC [EU:C:2014:2265] para 37.

Admissibility of the Reference 81 to dissipate any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it.236 In particular, dismissals of members of the referring body should be determined by express legislative provisions.237 In TDC, the Court of Justice held that the referring body lacked the necessary independence since the conditions for the dismissal of its members was not being subject to any specific rules, other than the general rules of administrative law and employment law which apply in the event of an unlawful dismissal.238 In Consorci Sanitari del Maresme,239 the Court of Justice considered the criterion to be fulfilled since the members of the referring body were appointed on a permanent basis and ceased to hold office only in the circumstances expressly set out in the law. The decision to be given has a judicial nature (functional criterion). The referring body must be called upon to give judgment in proceedings intended to lead to a decision of a judicial nature. Where a referring body exercises some functions which are judicial in nature and some which are not, the Court of Justice will accept references made in the context of judicial proceedings,240 but not those made in the context of non-judicial ones.241 Thus, even where it is clear that the referring body is a ‘court’, such court must be called upon to give judgment in proceedings intended to lead to a decision of a judicial nature.242 The fact that the referring body may also be invested with an advisory role is devoid of consequence.243 A national body may therefore be classified as a court or tribunal within the meaning of Article 267 TFEU when it is performing judicial functions, but when exercising other functions, of an administrative nature, for example, it cannot be recognised as such.244 If said court’s acts are those of an administrative authority, it not being at the same time called upon to decide a legal dispute, it acts in a non-judicial capacity.245 It follows that, in order to establish whether a national body, entrusted by law with different categories of functions, is to be regarded as a court or tribunal within the meaning of Article 267 TFEU, it is necessary to determine in what specific capacity it is acting within the particular legal context in which it seeks a ruling from the Court.246 Factors that have in this respect been taken into consideration include the determinations made by the referring body, the acts challengeable before it and the binding legal effect of its decisions.247 In this context, if a referring body does not provide sufficient information enabling the Court to establish that the decision it is called upon

236 Case C-506/04 Wilson [EU:C:2006:587] para 53. 237 Case C-175/11 HID. and A. [EU:C:2013:45] para 97; Order of 14 May 2008 in Case C-109/07 Pilato [EU:C:2008:274] para 24; Case C-222/13 TDC [EU:C:2014:2265] paras 30–31. 238 Case C-222/13 TDC [EU:C:2014:2265] paras 32–35. 239 Case C-203/14 Consorci Sanitari del Maresme [EU:C:2015:664] para 20. 240 Case C-14/86 X [EU:C:1987:275] paras 6–7. 241 Case C-111/94 Job Centre Coop [EU:C:1995:340] para 9; Case C-96/04 Standesamt Stadt Niebüll [EU:C:2006:254] para 14; Order of 14 November 2013 in Case C-49/13 MF 7 [EU:C:2013:767] para 16. 242 Order of 18 June 1980 in Case C-138/80 Borker [EU:C:1980:162] para 4; Order of 5 March 1986 in Case C-318/85 Greis Unterweger [EU:C:1986:1064] para 4; Case C-111/94 Job Centre Coop [EU:C:1995:340] para 9; Case C-178/99 Salzmann [EU:C:2001:331] para 14; Case C-182/00 Lutz and Others [EU:C:2002:19] para 13; Case C-165/03 Längst [EU:C:2005:412] para 25; Case C-96/04 Standesamt Stadt Niebüll [EU:C:2006:254] para 13; Order of 12 January 2010 in Case C-497/08 Amiraike Berlin [EU:C:2010:5] para 17. 243 Case C-465/11 Forposta and ABC Direct Contact [EU:C:2012:801] para 18. 244 Order of 26 November 1999 in Case C-192/98 ANAS [EU:C:1999:589] para 22; Case C-394/11 Belov [EU:C:2013:48] para 40. 245 Order in Case C-497/08 Amiraike Berlin [EU:C:2010:5] para 21; Case C-96/04 Standesamt Stadt Niebüll [EU:C:2006:254]. 246 Order of 26 November 1999 in Case C-192/98 ANAS [EU:C:1999:589] para 23; Case C-394/11 Belov [EU:C:2013:48] para 41. See, eg Case C-283/09 Weryński [EU:C:2011:85] para 45; Case C-394/11 Belov [EU:C:2013:48] para 40. 247 Case C-443/09 Grillo Star Fallimento [EU:C:2012:213] para 23.

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82 Preliminary Rulings on Interpretation to give has a judicial nature, the request for a preliminary ruling may be declared inadmissible, in accordance with Article 94 of the CJ RoP.248 2.120

An order for reference emanating from a referring body which is not a ‘court or tribunal’ is inadmissible. Where a request for a preliminary ruling emanates from a body which does not qualify as a ‘court or tribunal’ within the meaning of Article 267 TFEU, it will be rejected as inadmissible. However, where the decision of such a body is challenged by way of judicial review before a body which does qualify as a court or tribunal, the latter body will be entitled to make a preliminary reference.249

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Applications – courts or tribunals. The following bodies have been considered as ‘courts or tribunals’ within the meaning of Article 267 TFEU: a medical appeals committee;250 a UK employment appeal tribunal;251 a UK VAT tribunal;252 UK income tax commissioners;253 the Benelux Trade Marks Court;254 a UK Immigration Adjudicator;255 the UK Social Security Commissioner;256 the Austrian Procurement Office of the Land of Tyrol;257 industrial tribunals;258 the Belgian Judicial Board of the Brussels-Capital region;259 the Austrian Supreme Patent and Trademark Chamber;260 the Austrian Environmental Council;261 the Lithuanian Tax Disputes Commission, which carries out examinations of complaints filed by taxpayers;262 the Austrian Appeals and Disciplinary Board, which examines applications for admission to the aptitude test for the profession of lawyer;263 an Italian insolvency judge;264 the Austrian Railway Control Commission;265 an Irish Refugees Appeal Tribunal;266 a Polish appeal chamber in public procurement matters;267 the German Supervisory authority in the field of telecommunications;268 the Portuguese Tribunal Arbitral Necessário;269 the Irish Workplace Relations Commission;270 the Portuguese Tribunal Arbitral Tributário;271 the Italian National Council of the Bar Association;272 a German appeal body in public tender procedures;273 the Catalan Public Sector Contracts Board;274 248 Order of 25 April 2018 in Case C-102/17 Secretaria Regional de Saúde dos Açores [EU:C:2018:294] para 37. 249 See, eg Case C-222/13 TDC [EU:C:2014:2265]; Case C-327/15 TDC [EU:C:2016:974]. 250 Case C-246/80 Broekmeulen [EU:C:1981:218] paras 11 and 17. 251 Case C-19/81 Burton [EU:C:1982:58]. 252 Case C-5/84 Direct Cosmetics [EU:C:1985:71]. 253 Case C-44/84 Hurd [EU:C:1986:2]. 254 Case C-337/95 Parfums Christian Dior [EU:C:1997:517]. 255 Case C-416/96 Eddline El-Yassini [EU:C:1999:107]. 256 Case C-90/97 Swaddling [EU:C:1999:96]. 257 Case C-103/97 Köllensperger and Atzwanger [EU:C:1999:52]. 258 Case C-234/98 Allen and Others [EU:C:1999:594]. 259 Case C-17/00 De Coster [EU:C:2001:651]. 260 Case 246/05 Häupl [EU:C:2007:340]. 261 Case C-205/08 Umweltanwalt von Kärnten [EU:C:2009:767]. 262 Case C-385/09 Nidera Handelscompagnie [EU:C:2010:627]. 263 Case C-118/09 Koller [EU:C:2010:805]. 264 Case C-443/09 Grillo Star Fallimento [EU:C:2012:213]. 265 Case C-136/11 Westbahn Management [EU:C:2012:740]. 266 Case C-175/11 D. and A. [EU:C:2013:45]. 267 Case C-465/11 Forposta and ABC Direct Contact [EU:C:2012:801]; Case C-324/14 Partner Apelski Dariusz [EU:C:2016:214]. 268 Case C-195/06 Österreichischer Rundfunk [EU:C:2007:613]; Case C-283/11 Sky Österreich [EU:C:2013:28]. 269 Order 13 February 2014 in Case C-555/13 Merck Canada [EU:C:2014:92]. 270 Case C-363/12 Z. [EU:C:2014:159]; Case C-378/17 The Minister for Justice and Equality and Commissioner of the Garda Síochána [EU:C:2018:979]. 271 Case C-377/13 Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta [EU:C:2014:1754]. 272 Joined Cases C-58/13 and C-59/13 Torresi [EU:C:2014:2088]. 273 Case C-549/13 Bundesdruckerei [EU:C:2014:2235]. 274 Order of 6 October 2015 in Case C-203/14 Consorci Sanitari del Maresme [EU:C:2015:279].

Admissibility of the Reference 83 the Slovenian State Public Procurement Tribunal;275 and the Administrative Board of Contract Appeals of the Autonomous Community of the Basque Country.276 Applications – other referring bodies. The following bodies, on the contrary, have not been considered as ‘courts or tribunals’ within the meaning of the same provision: the Milan Civil and Criminal District Court, when exercising an administrative function in the matter before it;277 the Italian and Greek courts of auditors;278 the Arbitration Panel of the Travel Dispute Committee;279 a German district court, when not acting in a judicial capacity;280 a Swedish Municipal Environmental and Health Committee, when it makes an administrative decision without at the same time being required to decide a legal dispute;281 a Portuguese municipal entity;282 the Licensing and Control Authority of the Broadcasting Authority of the French Community of Belgium, responsible for ensuring compliance by the media broadcasters with the broadcasting rules and for punishing any infringements;283 a Greek body called upon to assess whether public expenditure complies with the law;284 the Bulgarian Commission for the Protection against Discrimination;285 the Polish National Board of Appeals;286 the Czech Industrial Property Office;287 the Italian Authority for the Supervision of Public Contracts of works, services and supplies;288 the Danish appeal commission for telecommunications;289 a private individual;290 the Spanish Registrar of the Single-Member Court dealing with matters involving violence against women;291 and the directorate for civil aviation, telecommunications and postal services within the Croatian Ministry for maritime affairs, transports and infrastructure.292

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(ii) The Notion of Court or Tribunal ‘of a Member State’ for the Purposes of Article 267 TFEU The referring body must be ‘of a Member State’. According to Article 267 TFEU, the referring court or tribunal must be ‘of a Member State’. In most cases, such a determination will pose no difficulty, where the referring court or tribunal is located on the territory of a Member State.293 However, this is not always the case. There have been instances where the Court of Justice had to decide whether it had jurisdiction to address references from courts or tribunals which were not located on the territory of a Member State. In this context, Advocate General Jacobs suggested that the expression ‘court or tribunal of a Member State’ in Article 267 TFEU should be interpreted

275 Case C-296/15 Medisanus [EU:C:2017:431]. 276 Case C-546/16 Montte [EU:C:2018:752]. 277 Case C-111/94 Job Centre Coop [EU:C:1995:340]. 278 Order of 26 November 1999 in Case C-192/98 ANAS [EU:C:1999:589]; Order of 26 November 1999 in Case C-440/98 RAI [EU:C:1999:590]; Case C-363/11 Epitropos tou Elegktikou Sinedriou [EU:C:2012:825]. 279 Case C-125/04 Denuit and Cordenier [EU:C:2005:69]. 280 Order of 12 January 2010 in Case C-497/08 Amiraike Berlin [EU:C:2010:5]. 281 Order of 24 March 2011 in Case C-344/09 Bengtsson [EU:C:2011:174]. 282 Order of 12 February 2010 in Case C-408/09 Município de Barcelos [EU:C:2010:77]. 283 Case C-517/09 RTL Belgium [EU:C:2010:821]. 284 Case C-363/11 Epitropos tou Elegktikou Sinedriou [EU:C:2012:825]. 285 Case C-394/11 Belov [EU:C:2013:48]. 286 Case C-465/11 Forposta and ABC Direct Contact [EU:C:2012:801]. 287 Order of 14 November 2013 in Case C-49/13 MF 7 [EU:C:2013:767]. 288 Order of 17 July 2014 in Case C-427/13 Emmeci [EU:C:2014:2121]. 289 Case C-222/13 TDC [EU:C:2014:2265]. 290 Order of 6 November 2014 in Case C-243/14 Krikorian and Others [EU:C:2014:2357]. 291 Case C-503/15 Margarit Panicello [EU:C:2017:126]. 292 Order of 16 November 2017 in Case C-476/16 Air Serbia and Kondić [EU:C:2017:874]. 293 See Art 52 TEU.

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84 Preliminary Rulings on Interpretation broadly as extending to judicial bodies situated in any territory to which the Treaty applies, even if only partially.294 Otherwise, courts or tribunals in such territories which are responsible for applying EU law would be deprived of any means of seeking the guidance of the Court of Justice, which would pose a serious threat to the proper functioning of the EU legal order.295 This reasoning was followed by the Court of Justice, which accepted a reference from the Isle of Man, even though courts and tribunals of the Isle of Man do not form part of the court system of the UK,296 as well as in a subsequent case concerning a reference from the Bailiwick of Jersey, whose courts and tribunals likewise do not form part of the judicial system of the UK.297 The Court of Justice also acknowledged that a reference for a preliminary ruling could be made by the courts or tribunals of overseas countries and territories which form part of the French judicial system.298 2.124

International courts. In Parfums Christian Dior, the Court of Justice considered that there was no reason why an international court such as the Benelux Court of Justice, common to a number of Member States, should not be able to submit questions for preliminary ruling in the same way as courts or tribunals of any of those Member States. Emphasis was placed on the fact that the Benelux Court of Justice has the task of ensuring that the legal rules common to the three Benelux States are applied uniformly and on the fact that the procedure before it is a step in the proceedings before the national courts leading to definitive interpretations of common Benelux legal rules. Not only has the Benelux Court of Justice the right to ask questions, as this would serve the purpose of Article 267 TFEU, which is to ensure the uniform interpretation of EU law; it is also under an obligation to do so, insofar as no appeal lies against its decisions (cf para 2.86).299 Furthermore, pursuant to the UPC Agreement,300 the Unified Patent Court (which will, upon the entry into force of said agreement, have exclusive competence in respect of European patents with unitary effect and European patents granted under the provisions of the European Patent Convention, which has been ratified by all Member States) will, like any national court, cooperate with the Court of Justice in properly interpreting EU law by relying on the latter’s case law and by requesting preliminary rulings in accordance with Article 267 TFEU, which will be binding upon it.301 In contrast, in Miles and Others, the Court of Justice considered that the Complaints Board of the European Schools did not fall within the remit of ‘a Member State’ but of the European Schools, which constitute a sui generis system achieving, by means of an international agreement, a form of cooperation between the Member States and between those States and the EU. Therefore, unlike the situation that arose in Parfums Christian Dior, the Complaints Board is not a court common to a number of Member States, comparable to the Benelux Court of Justice, nor is it linked with the judicial systems of the Member States.302

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Foreign courts. Foreign courts cannot be considered to be courts of tribunals of Member States and, as such, are excluded from the possibility of making preliminary references to the Court of Justice. Furthermore, the answers provided by the Court of Justice would be purely advisory and

294 See Art 355 TFEU. 295 See Opinion of AG Jacobs in Case C-355/89 Barr and Montrose Holdings [EU:C:1991:5] para 18. 296 Case C-355/89 Barr and Montrose Holdings [EU:C:1991:287] paras 6–10. 297 Case C-171/96 Pereira Roque [EU:C:1998:368]. 298 Joined Cases C-100/89 and C-101/89 Kaefer and Procacci [EU:C:1990:456] paras 6–10; Case C-260/90 Leplat [EU:C:1992:66] paras 7–9. 299 Case C-337/95 Parfums Christian Dior [EU:C:1997:517] paras 21–26. 300 Agreement on a Unified Patent Court, signed at Brussels on 19 February 2013 (OJ 2013 C 175, p. 1) (UPC Agreement). 301 Art 21 of the UPC Agreement. 302 Case C-196/09 Miles and Others [EU:C:2011:388] paras 40–45.

Admissibility of the Reference 85 without any binding effects, and this would change the nature of the function of the Court of Justice as it is conceived by the Treaties, namely that of a court whose judgments are binding.303 The General Court has no jurisdiction to submit references for preliminary rulings to the Court. The jurisdiction of the General Court is laid down in Article 256 TFEU and is further specified in Articles 50a and 51 of the Statute. The provisions of the Statute do not foresee any power of the General Court to refer questions to the Court of Justice.304

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2.2.4.2. Admissibility of the Reference – Proceedings before the Referring Body (i) A Question of Interpretation of EU Law must be Raised before the Referring Court A question of interpretation of EU law must be ‘raised’ in the proceedings before the referring court. Article 267 TFEU provides that a reference for preliminary ruling may be submitted to the Court of Justice where ‘a question is raised before any court or tribunal of a Member State’. Whether one of the parties has taken the initiative of raising such a question before the referring court or whether the latter has itself raised such a question, it is the referring court that determines whether to refer the matter to the Court of Justice. It follows therefrom that the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of EU law does not imply that the court or tribunal concerned is compelled to consider that a question has been ‘raised’ within the meaning of Article 267 TFEU. National courts have the widest discretion in this regard.305 Furthermore, the Court of Justice only examines questions which are the subject of the national court’s order for reference, other questions which may be raised by the parties to the main proceedings in their written observations being inadmissible.306

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A case must be pending before the national court … A national court may refer a question to the Court of Justice only if there is a case pending before it.307 Indeed, the justification for a reference for a preliminary ruling is not to provide advisory opinions on general or hypothetical questions, but, rather, to obtain guidance that is necessary for the effective resolution of a dispute,308 it being understood that the national court must be capable of taking account of the preliminary ruling when it adopts its own decision.309 The jurisdiction of the Court of Justice thus depends solely on the existence of a request from the referring court.

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303 To that effect, see Opinion 1/91 [EU:C:1991:490]. 304 Case T-197/13 MEM v OHIM (MONACO) [EU:T:2015:16] para 38; Case T-71/17 France.com v EUIPO – France (FRANCE.com) [EU:T:2018:381] para 21. 305 Case C-166/73 Rheinmühlen-Düsseldorf [EU:C:1974:3] para 3; Case C-416/10 Križan and Others [EU:C:2013:8] para 64; Case C-180/11 Bericap Záródástechnikai [EU:C:2012:717] para 53; Case C-244/13 Ogieriakhi [EU:C:2014:2068] para 52; Joined Cases C-22/13, C-61/13, C-63/13 and C-418/13 Mascolo and Others [EU:C:2014:2401] para 48; Case C-689/13 PFE [EU:C:2016:199] para 32. 306 Case C-154/05 Kersbergen-Lap and Dams-Schipper [EU:C:2006:449] paras 21–22; Case C-89/14 A2A [EU:C:2015:537] para 44; Case C-508/14 T-Mobile Czech Republic and Vodafone Czech Republic [EU:C:2015:657] paras 29–32; Joined Cases C-412/17 and C-474/17 Touring Tours und Travel and Sociedad de Transportes [EU:C:2018:1005] para 41. 307 Order of 5 March 1986 in Case C-318/85 Greis Unterweger [EU:C:1986:1064] para 4; Case C-53/03 Syfait and Others [EU:C:2005:333] para 29; Case C-394/11 Belov [EU:C:2013:48] para 39. It is not necessary, in order for a reference to be admissible, for the ‘main action’ to be pending before the court which actually makes the reference. In particular, where the proceedings before the referring court aim to determine which local court must be assigned to hear a claim, a question may properly be referred (Opinion of AG Jacobs in Case C-96/00 Gabriel [EU:C:2001:690] para 28). 308 Case C-225/02 García Blanco [EU:C:2005:34] para 28; Order of 24 March 2009 in Case C-525/06 Nationale Loterij [EU:C:2009:179] para 10; Case C-621/18 Wightman and Others [EU:C:2018:999] para 28. 309 Case C-338/85 Pardini [EU:C:1988:194] para 11; Case C-225/02 García Blanco [EU:C:2005:34] para 27; Case C-492/11 Di Donna [EU:C:2013:428] para 26; Case C-165/14 Rendón Marín [EU:C:2016:675] para 24.

86 Preliminary Rulings on Interpretation 2.129

… and the case must remain pending during the preliminary proceedings. The Court of Justice cannot give a ruling where the procedure before the court making the reference for a preliminary ruling has already been terminated.310 This can easily be explained by the circumstance that the preliminary ruling mechanism has as its objective to assist the national court in the resolution of an actual dispute. There may be a number of instances where the procedure before the national court is terminated before the preliminary ruling is issued. Examples which can be found in the case law include the adjudication of the case by a superior court,311 the settlement of the case or the loss of purpose of the main proceedings,312 the removal of the case from the docket of the referring court,313 and the annulment of the decision which is the subject matter of the proceedings before the referring court or of its legal basis.314

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The existence of a pending case may be verified ex officio by the Court of Justice. The Court of Justice may verify the existence of a pending case of its own motion.315 If the Court of Justice finds that there is in fact no dispute pending before the referring court, so that an answer to the question would be of no use to that court for the resolution of a dispute, it must rule that there is no need to give a preliminary ruling and declare the reference inadmissible.316 As a matter of principle, it is incumbent on the referring court to inform the Court of Justice that a case is no longer pending before it, and, more generally, to inform the Court of Justice of any procedural steps that may affect the referral.317 In this context, it may occur that while no information is provided to the Court of Justice in this respect by the referring court or tribunal, the Court of Justice entertains doubts as regards the continued existence of a pending case, for instance because this issue has come forward in the written observations which have been submitted to it. If this is the case, the Court of Justice will usually request clarification from the referring court on that specific point.318 Furthermore, since the procedure provided for by Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, the indication by a national court that a case is still pending cannot, in principle, be called into question by the parties to the main proceedings.319 It is therefore not sufficient for a party to allege that a dispute is no longer pending before the referring court, for instance following a settlement, such circumstance having to be

310 Case C-338/85 Pardini [EU:C:1988:194] para 11; Case C-159/90, Society for the Protection of Unborn Children Ireland [EU:C:1991:378] para 12; Case C-343/90 Lourenço Dias [EU:C:1992:327] para 18; Case C-148/10 Express Line [EU:C:2011:654] para 29. 311 Order of 24 March 2009 in Case C-525/06 Nationale Loterij [EU:C:2009:179] para 11; Order of 4 June 2009 in Case C-129/08 Cloet and Cloet [EU:C:2009:347] para 11; Case C-189/13 Da Silva [EU:C:2014:2043] para 34. 312 Case C-314/96 Djabali [EU:C:1998:104] paras 20–21; Case C-225/02 García Blanco [EU:C:2005:34] paras 29–30; Order of 14 October 2010 in Case C-336/08 Reinke [EU:C:2010:604] paras 14–16; Order of 10 June 2011 in Case C-155/11 PPU Mohammad Imran [EU:C:2011:387] paras 16–18; Order of 22 October 2012 in Case C-252/11 Šujetová [EU:C:2012:653]; Order of 23 March 2016 in Case C-319/15 Overseas Financial and Oaktree Finance [EU:C:2016:268] paras 30–32. 313 Order of 22 October 2012 in Case C-252/11 Šujetová [EU:C:2012:653] paras 16–19; Order of 10 February 2015 in Case C-175/13 Liivimaa Lihaveis paras 16–21. 314 Case C-180/12 Stoilov i Ko [EU:C:2013:693] paras 40–46; Order of 5 June 2014 in Case C-350/13 Antonio Gramsci Shipping and Others [EU:C:2014:1516] paras 11–13. 315 Joined Cases C-428/06 to C-434/06 Unión General de Trabajadores de la Rioja [EU:C:2008:488] para 40; Case C-165/14 Rendón Marín [EU:C:2016:675] para 24. 316 Case C-143/13 Matei [EU:C:2015:127] para 38. 317 Recommendations to national courts and tribunals, in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1) para 26. 318 The Court of Justice may adopt such requests for clarification pursuant to CJ RoP, Art 101(1). See, eg Case C-180/12 Stoilov i Ko [EU:C:2013:693] para 39; Case C-492/11 Di Donna [EU:C:2013:428] para 19; Case C-165/14 Rendón Marín [EU:C:2016:675] paras 28–29; Case C-351/14 Rodríguez Sánchez [EU:C:2016:447] para 41. 319 Case C-470/12 Pohotovosť [EU:C:2014:101] para 30.

Admissibility of the Reference 87 duly proven or expressly confirmed by said court.320 However, even though it is for the referring court to decide whether it is appropriate to maintain the reference for a preliminary ruling, or to amend or withdraw it,321 the Court of Justice may in exceptional circumstances consider, if the dispute has been adjudicated, that even though the referring court has not withdrawn the reference for a preliminary ruling, there is no need to reply to that reference.322 This can be the case, for instance, in the absence of a response from the national court, or if said response is laconic.323 (ii) The Preliminary Ruling must be Necessary to Give Judgment The term ‘to give judgment’ is interpreted broadly. Under Article 267(2) TFEU,

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Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

In many cases, an interpretation of EU law by means of a request for a preliminary ruling would not be possible if the requirements imposed as to the relevance of the question to the resolution of the dispute were too stringent. The concept ‘to give judgment’, within the meaning of Article 267(2) TFEU, has therefore been interpreted broadly, and must be understood as encompassing the whole of the procedure leading up to the judgment of the referring court. That concept thus covers the entire process of creating the judgment, including all procedural provisions of EU law that the referring court is required to apply in order to give judgment,324 as well as issues relating to the responsibility for the costs of proceedings.325 The preliminary ruling must be ‘necessary’ for the national court to give judgment … A national court or tribunal is not empowered to bring a matter before the Court of Justice by way of a preliminary reference unless a case is pending before it (cf para 2.127), and a preliminary ruling from the Court of Justice is necessary for the effective resolution of a dispute.326 In this regard, the Court of Justice has explained that a question is ‘necessary’ unless it is ‘not relevant, that is to say, if the answer to that question, regardless of what it may be, can in no way affect the outcome of the case’.327 In other words, the referring court must be called upon to give a decision which is capable of taking account of the preliminary ruling.328 The Court of Justice has therefore declined to respond to hypothetical questions raised by national courts.329 It has stressed in that context that the spirit of cooperation which must prevail in the preliminary ruling procedure

320 Case C-143/13 Matei [EU:C:2015:127] paras 37–41. 321 Case C-210/06 Cartesio [EU:C:2008:723] para 96; Case C-225/02 García Blanco [EU:C:2005:34] para 28; Case C-470/12 Pohotovosť [EU:C:2014:101] paras 30–32; Case C-165/14 Rendón Marín [EU:C:2016:675] paras 30–31. 322 Order of 24 March 2009 in Case C-525/06 Nationale Loterij [EU:C:2009:179] paras 9–11. 323 Order of 2 May 2019 in Case C-524/16 Faggiano [EU:C:2019:399]. 324 Case C-226/13 Fahnenbrock and Others [EU:C:2015:383] para 30; Case C-579/17 Gradbeništvo Korana [EU:C:2019:162] para 35; Case C-678/18 Procureur-Generaal bij de Hoge Raad der Nederlanden [EU:C:2019:998]. 325 Case C-283/09 Weryński [EU:C:2011:85] paras 39–42. 326 Case C-244/80 Foglia [EU:C:1981:302] para 18; Case C-380/01 Schneider [EU:C:2004:73] para 31; Case C-314/96 Djabali [EU:C:1998:104] paras 18–19. 327 Case C-283/81 Cilfit and Others [EU:C:1982:335] para 10. 328 Case C-338/85 Pardini [EU:C:1988:194] para 11; Case C-225/02 García Blanco [EU:C:2005:34] para 27; Case C-492/11 Di Donna [EU:C:2013:428] para 26. 329 See, eg Case C-83/91 Meilicke [EU:C:1992:332]; Order of 16 December 2004 in Case C-425/03 Regio [EU:C:2004:644]; Order of 7 June 2012 in Case C-21/11 Volturno Trasporti [EU:C:2012:325]; Order of 27 March 2014 in Case C-520/13 Leśniak-Jaworska and Głuchowska-Szmulewicz [EU:C:2014:263]; Case C-238/17 Renerga [EU:C:2018:905]; Case C-64/16 Associação Sindical dos Juízes Portugueses [EU:C:2018:117] para 23.

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88 Preliminary Rulings on Interpretation requires the national court to have regard to the function entrusted to the Court of Justice by Article 267 TFEU, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions.330 If the Court of Justice considers that only part of the questions referred are hypothetical, it will not reject the entire reference as inadmissible, but only the questions concerned.331 2.133

… and a ruling from the Court of Justice must remain necessary to give judgment. A preliminary ruling from the Court of Justice must not only be necessary at the time when the referring court addresses the order for reference to the Court of Justice; it must also remain necessary throughout the proceedings before the national court. Where an interpretative ruling from the Court of Justice is no longer necessary, the referring court may withdraw its request, the case then being removed from the docket.332 Furthermore, the Court of Justice will not give a ruling where the procedure before the court making the reference for a preliminary ruling has already been terminated (cf para 2.129), but also where the interpretation of EU law that was sought by the referring court is no longer necessary. Examples which can be found in the case law include the disappearance in the relevant national legal system of the provisions applicable to the case before the referring judge;333 a change in the applicable national provisions;334 the abrogation of the applicable national law;335 the satisfaction in full of the claims of the applicant in the main proceedings, with the result that the case pending before the national court no longer has a purpose;336 a change in the EU measures contested before the national court;337 the withdrawal of certain pleas in law before the referring court;338 and the passing away and hence closure of the criminal case of one of the accused in the main proceedings.339 In such instances, the Court of Justice will usually not dismiss the reference as inadmissible, but, rather, will declare that the conditions of its jurisdiction are no longer fulfilled.340 In this context, it has been pointed out that the desire for a national court to maintain a request for a preliminary ruling, in spite of the fact that the proceedings had become devoid of purpose, cannot have the effect of expanding the Court’s jurisdiction beyond the boundaries set in Article 267 TFEU. Nor is it of any relevance that an answer from the Court might be useful for the referring court or other national courts in the context of other pending cases which raise similar issues, or of future cases which may be connected to the main proceedings. Indeed, the Court of Justice’s response to a request under

330 Case C-244/80 Foglia [EU:C:1981:302] para 18; Case C-343/90 Lourenço Dias [EU:C:1992:327] para 17; Case C-380/01 Schneider [EU:C:2004:73] para 23; Case C-144/04 Mangold [EU:C:2005:709] para 36. 331 Case C-313/12 Romeo [EU:C:2013:718] para 39; Case C-571/10 Kamberaj [EU:C:2012:233] para 46. 332 CJ RoP, Art 100(1). 333 This can occur where a judgment by the constitutional court declares those provisions incompatible with the constitution of the Member State concerned, especially if the referring body does not indicate in what way the questions referred by it remained relevant for the decision in the main proceedings. 334 Case C-492/11 Di Donna [EU:C:2013:428] paras 27–32; Case C-241/09 Fluxys [EU:C:2010:753] para 32. 335 Order of 3 March 2016 in Case C-537/15 Euro Bank [EU:C:2016:143] para 34. Conversely, in Case C-239/14 Tall [EU:C:2015:824] paras 30–37, the Court of Justice, following the entry into force, after the lodging of the order for reference, of a law the transitional provisions of which were considered by some of the parties to lead to a finding of inadmissibility of the question referred, held that it was not for it to ‘give a ruling on whether the transitional provisions of the new law must be interpreted as meaning that that law is applicable retroactively to Mr Tall’s situation’ and concluded that ‘it is not obvious that the interpretation of EU law sought by the referring court is unnecessary for the purpose of resolving the dispute in the main proceedings’. 336 Case C-314/96 Djabali [EU:C:1998:104] para 21; Case C-225/02 García Blanco [EU:C:2005:34] paras 30–32. 337 Order of 15 November 2017 in Case C-496/16 Aranyosi [ECLI:EU:C:2017:866] paras 27–28. 338 Case C-241/09 Fluxys [EU:C:2010:753] para 32. 339 Case C-612/15 Kolev and Others [EU:C:2018:392] paras 45–48. 340 CJ RoP, Art 100(2).

Admissibility of the Reference 89 Article 267 TFEU, even formulated in an abstract manner, is always anchored in the factual and legal background of the actual case before the referring court.341 The national court assesses the necessity of the questions referred. The preliminary ruling procedure being an instrument for cooperation between the Court of Justice and national courts,342 it is solely for the national court before which the dispute has been brought, which alone has direct knowledge of the facts of the case and must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions submitted.343 The Court of Justice thus gives its ruling without, in principle, having to look into the circumstances in which a national court was prompted to submit the questions and envisages applying the provision of EU law which it has asked the Court to interpret.344 Therefore, the Court of Justice will not involve itself in assessing the reasons for which the national court has considered a reference to be necessary or the relevance of the questions raised.345 According to settled case law, questions on the interpretation of EU law enjoy a presumption of relevance. Therefore, as a rule, the Court of Justice leaves it to the national court to determine in the light of the facts of each case whether the preliminary ruling is necessary in order to decide the dispute pending before it and will not interfere in that determination. There are, however, exceptional situations where the Court of Justice does examine the relevance of the questions. These include cases in which it is quite obvious that the provision of EU law which the Court of Justice is asked to interpret bears no relation to the actual facts of the main action or to its purpose,346 or is not objectively required in order to resolve that action;347 where the case clearly has no connection with EU law;348 where the interpretation of EU law sought by the referring court does not relate to the rules and principles of EU law whose interpretation is required by said court to give its ruling;349 where said provision is manifestly inapplicable in the case before the national court;350 or where the question referred is obviously irrelevant.351

341 Opinion of AG Wahl in Case C-627/15 Gavrilescu [ECLI:EU:C:2017:690] paras 38–39; Order of 10 January 2019 in Case C-169/18 Mahmood and Others [EU:C:2019:5]. See a contrario Case C-181/16 Gnandi [EU:C:2018:465] paras 30–34. 342 Case C-16/65 Schwarze [EU:C:1965:117]; Case C-343/90 Lourenço Dias [EU:C:1992:327] para 14; Case C-83/91 Meilicke [EU:C:1992:332] para 22; Case C-380/01 Schneider [EU:C:2004:73] para 20; Case C-314/01 Siemens and ARGE Telekom [EU:C:2004:159] para 33. 343 Case C-83/78 Redmond [EU:C:1978:214] para 25; Case C-247/86 Alsatel [EU:C:1988:469] para 8; Case C-343/90 Lourenço Dias [EU:C:1992:327] para 15; Case C-83/91 Meilicke [EU:C:1992:332] para 23; Case C-144/04 Mangold [EU:C:2005:709] para 34; Joined Cases C-165/09 to C-167/09 Stichting Natuur en Milieu and Others [EU:C:2011:348] para 47; Case C-177/10 Rosado Santana [EU:C:2011:557] para 32; Case C-22/13 Mascolo and Others [EU:C:2014:2401] para 47; Case C-617/10 Åkerberg Fransson [EU:C:2013:105] para 39; Case C-416/10 Križan and Others [EU:C:2013:8] para 53. 344 Joined Cases C-297/88 and C-197/89 Dzodzi [EU:C:1990:360] para 39; Case C-85/95 Reisdorf [EU:C:1996:466] para 15; Case C-64/06 Telefónica O2 Czech Republic [EU:C:2007:348] para 22. 345 Case C-56/65 LTM [EU:C:1966:38] 247; Case C-19/68 De Cicco [EU:C:1968:56] 478; Case C-111/75 Mazzalai [EU:C:1976:68] para 9; Case C-35/76 Simmenthal [EU:C:1976:180] para 4. 346 Case C-13/68 Salgoil [EU:C:1968:54] 672; Case C-126/80 Salonia [EU:C:1981:136] para 6; Case C-166/84 Thomasdünger [EU:C:1985:373] para 11; Case C-380/01 Schneider [EU:C:2004:73] paras 20–22; Case C-314/01 Siemens and ARGE Telekom [EU:C:2004:159] para 33; Case C-62/06 ZF Zefeser [EU:C:2007:811] para 16; Case C-42/13 Cartiera dell’Adda [EU:C:2014:2345] para 29; Case C-190/13 Márquez Samohano [EU:C:2014:146] para 35; Order of 30 April 2014 in Case C-600/13 Intelcom Service [EU:C:2014:609] paras 15–17. 347 Order of 26 January 1990 in Case C-286/88 Falciola [EU:C:1990:33] para 8; Order of 16 May 1994 in Case C-428/93 Monin Automobiles [EU:C:1994:192] paras 15–16; Case C-18/93 Corsica Ferries [EU:C:1994:195] para 14; Case C-96/94 Centro Servizi Spediporto [EU:C:1995:308] para 45; Case C-66/14 Finanzamt Linz [EU:C:2015:661] para 19. 348 Order of 27 June 1979 in Case C-105/79 Godard [EU:C:1979:168]; Case C-132/81 Vlaeminck [EU:C:1982:294]. 349 Order of 16 May 1994 in Case C-428/93 Monin Automobiles [EU:C:1994:192] paras 12–17. 350 Case C-56/13 Érsekcsanádi Mezőgazdasági [EU:C:2014:352] para 37. 351 Case C-83/91 Meilicke [EU:C:1992:332].

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90 Preliminary Rulings on Interpretation 2.135

If it is manifest that the interpretation sought is not necessary to give judgment, the Court of Justice declines to provide an interpretative ruling. As has been stated above (cf paras 2.133–2.134), in the context of the cooperation between the Court of Justice and the national courts, it is the national court that determines in the light of the particular circumstances of the case both the need for a preliminary ruling and the relevance of the questions submitted to the Court of Justice. Consequently, where the questions submitted by the national court concern the interpretation of EU law, the Court of Justice is, in principle, bound to give a ruling.352 However, the Court of Justice may only interpret EU law within the limits of the jurisdiction attributed to the EU.353 Therefore, the Court of Justice, as a matter of principle, refuses to answer questions referred for preliminary ruling where the subject matter of the dispute is not connected in any way with any of the situations contemplated by the Treaties354 or where it is obvious that EU law cannot be applied, either directly or indirectly, to the circumstances of the case.355 This may, subject to exceptions, be the case where the relevant provisions of EU law cannot apply in a context such as that of the main proceedings (cf paras 2.136–2.141). Also, the Court of Justice has declined to respond to questions referred to it where the procedure provided for in Article 267 TFEU is diverted from its true purpose and is used to obtain a ruling in a contrived dispute (cf para 2.142). (iii) Purely Internal Situations

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Principle. It may appear that EU law is manifestly not applicable to the case at hand where all elements of the dispute are confined within a single Member State (ie where the situation is ‘purely internal’). In such a case, the questions referred are devoid of relevance because they are not related to the reality or subject matter of the main dispute and the Court of Justice will decline to provide a preliminary ruling. It sometimes occurs, however, that, despite the fact that EU law does not apply to the dispute before the referring court, an interpretation of EU law is of considerable importance in deciding said dispute.356 On a number of occasions, the Court of Justice has therefore been willing to provide preliminary rulings on interpretation in instances where the facts of the case were confined within a single Member State. Three sets of circumstances have justified the issuing of a preliminary ruling by the Court of Justice.357 First, it is possible that a domestic legislation which is being challenged is likely to have cross-border effects (cf para 2.137); secondly, national law may require that a national of that Member State be granted the same rights as those which a national of another Member State would derive from EU law in the

352 Case C-380/01 Schneider [EU:C:2004:73] para 21; Case C-314/01 Siemens and ARGE Telekom [EU:C:2004:159] para 34; Case C-617/10 Åkerberg Fransson [EU:C:2013:105] para 39; Case C-26/11 Belgische Petroleum Unie and Others [EU:C:2013:44] para 24. 353 Order of 14 December 2011 in Case C-434/11 Corpul Naţional al Poliţiştilor [EU:C:2011:830] para 13; Case C-265/13 Torralbo Marcos [EU:C:2014:187] para 27; Order of 21 October 2014 in Case C-665/13 Sindicato Nacional dos Profissionais de Seguros e Afins [EU:C:2014:2327] para 12; Order of 18 February 2016 in Case C-407/15 Rîpanu [EU:C:2016:167] para 19; Case C-268/15 Ullens de Schooten [EU:C:2016:874] para 40. 354 Order of 6 October 2005 in Case C-328/04 Vajnai [EU:C:2005:596] para 13; Order of 14 April 2016 in Case C-328/15 Târșia [EU:C:2016:273] para 19. 355 Case C-310/10 Agafiţei and Others [EU:C:2011:467] para 28; Case C-97/16 Pérez Retamero [EU:C:2017:158] para 23. 356 It should be borne in mind that where the circumstances on the basis of which it is argued that the situation is a purely internal one relate to the substance of the questions submitted by the national courts, whilst they may be relevant for the purpose of answering those questions, they are not relevant in determining whether the Court has jurisdiction to rule on the requests for preliminary rulings (Joined Cases C-297/88 and C-197/89 Dzodzi [EU:C:1990:360] para 18). 357 See Opinion of AG Wahl in Joined Cases C-159/12 to C-161/12 Venturini [EU:C:2013:529] paras 26–63.

Admissibility of the Reference 91 same situation (prevention of ‘reverse discrimination’) (cf para 2.139); and thirdly, EU law provisions may have been made applicable by national law, which has adopted, for internal situations, the same approach as that provided for under EU law (cf para 2.140). A ruling may be necessary where it is impossible to rule out cross-border effects of national law … One set of circumstances where the Court of Justice has in the past agreed to provide interpretative rulings on EU law even though all the factual elements seemed to be confined within a single Member State concern situations where the Court of Justice considered that it was not possible to rule out the possibility of cross-border effects of the applicable national law. Preliminary ruling references have thus been held admissible where it was not inconceivable that nationals established in other Member States had been or were currently interested in making use of those freedoms for carrying on activities in the territory of the Member State that had enacted the national legislation in question and that, consequently, the legislation, applicable without distinction to nationals of that State and those of other Member States, was capable of producing effects which were not confined to that Member State. In its seminal Blanco Pérez358 judgment, which concerned the issue of licences to open new pharmacies in the Autonomous Community of Asturias, the Court of Justice noted that all aspects of the main proceedings were confined within one Member State. It went on to consider that while national law, which was indistinctly applicable, was, generally, capable of falling within the scope of the provisions relating to the fundamental freedoms established by the Treaty only to the extent that it applied to situations connected with trade between Member States, it was ‘far from inconceivable’ that nationals established in other Member States had been or were interested in operating pharmacies in said territory. It thus held that the reference was admissible. This case law was later reaffirmed on several occasions.359 In Libert,360 which concerned the compatibility with the Treaty provisions of a Flemish decree restricting the right to purchase or sell property in some Flemish municipalities, the Court of Justice seemed to take its reasoning a step further. It held that, since the referring court made a request for a preliminary ruling in proceedings for the annulment of provisions which applied not only to its own nationals, but also to those of other Member States, the decision of the referring court that would be adopted following the Court of Justice’s preliminary ruling would also have effects on nationals of other Member States. This circumstance justified the Court giving an answer to the questions referred in relation to the provisions of the Treaty on the fundamental freedoms, even though the dispute in the main proceedings was confined in all respects within a single Member State.

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… provided that EU law is effectively capable of applying. The Court of Justice will only provide a preliminary ruling if the provision of EU law referred to the Court of Justice for interpretation is capable of applying. The Court of Justice has indeed consistently held that the Treaty provisions on freedom of movement cannot be applied to activities which are confined in all respects within a single Member State.361 In this regard, in Ullens de Schooten,362 the Court of Justice made clear,

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358 Joined Cases C-570/07 and C-571/07 Blanco Pérez and Chao Gómez [EU:C:2010:300] para 40. 359 Case C-470/11 Garkalns [EU:C:2012:505] para 21; Case C-265/12 Citroën Belux [EU:C:2013:498] para 33; Joined Cases C-159/12 to C-161/12 Venturini and Others [EU:C:2013:791] paras 25–26; Case C-168/14 Grupo Itevelesa and Others [EU:C:2015:685] paras 35–36. 360 Joined Cases C-197/11 and C-203/11 Libert and Others [EU:C:2013:288] paras 34–35. 361 Case C-332/90 Steen [EU:C:1992:40] para 9; Case C-134/94 Esso Española [EU:C:1995:414] para 13; Case C-245/09 Omalet [EU:C:2010:808] para 12; Order of 4 September 2014 in Case C-204/14 Szabó [EU:C:2014:2220] para 19. 362 Case C-268/15 Ullens de Schooten [EU:C:2016:874] paras 54–55.

92 Preliminary Rulings on Interpretation in what appears to be a departure from its Blanco Perez ruling (cf para 2.137), that it would not satisfy itself with a mere statement by the referring court that the national legislation in question applies without distinction to nationals of the Member State concerned and to those of other Member States. According to the Court of Justice, the referring court is bound to indicate, in the order for reference, ‘The specific factors that allow a link to be established between the subject or circumstances of a dispute, confined in all respects within a single Member State, and Article 49, 56 or 63 TFEU’. In particular, the Court of Justice stated that in a situation such as that at issue in the main proceedings which is confined in all respects within a single Member State, it is for the referring court to indicate to the Court, in accordance with the requirements of Article 94 of the [CJ RoP], in what way the dispute pending before it, despite its purely domestic character, has a connecting factor with the provisions of EU law on the fundamental freedoms that makes the preliminary ruling on interpretation necessary for it to give judgment in that dispute.

The mere possibility that nationals of other Member States might be potentially affected by the legislation at issue is thus no longer sufficient for the Court of Justice to issue a preliminary ruling.363 2.139

A ruling may be necessary where EU law has been made applicable by national law in order to prevent reverse discrimination. A Member State may want to refer to EU law provisions to regulate purely internal situations where it seeks to avoid discrimination against its own nationals or any distortion of competition.364 The interpretation of the Treaty provisions may therefore prove to be relevant in a case confined in all respects within a single Member State where national law requires the referring court to grant the same rights to a national of its own Member State as those which a national of another Member State in the same situation would derive from EU law. For instance, in Guimont, which concerned criminal prosecution against a French national for infringing French law prohibiting the holding for sale, selling or offering of a foodstuff with deceptive labelling, the Court of Justice, despite the apparent absence of any connection to EU law, found that the question referred to it did indeed needed to be answered, since Such a reply might be useful to it if its national law were to require, in proceedings such as those in this case, that a national producer must be allowed to enjoy the same rights as those which a producer of another Member State would derive from EU law in the same situation.365

Following the judgment in Ullens de Schooten, it is now clear that the specific factors that allow a link to be established between the subject or circumstances of a dispute, confined in all respects within a single Member State, and the Treaty provisions must be apparent from the order for reference (cf para 2.138).366

363 See also Case C-111/12 Ordine degli Ingegneri di Verona e Provincia and Others [EU:C:2013:100] para 35; Order of 4 September 2014 in Case C-92/14 Tudoran [EU:C:2014:2051] para 42; Order of 27 April 2017 in Case C-595/16 Emmea and Commercial Hub [EU:C:2017:320]. 364 Case C-28/95 Leur-Bloem [EU:C:1997:369] paras 32–34; Case C-352/08 Zwijnenburg [EU:C:2010:282] paras 29–35; Case C-603/10 Pelati [EU:C:2012:639] paras 15–20; Case C-380/17 K and B [EU:C:2018:877] para 38. 365 Case C-448/98 Guimont [EU:C:2000:663] paras 23–24. See also Case C-451/03 Servizi Ausiliari Dottori Commercialisti [EU:C:2006:208] paras 28–29; Joined Cases C-94/04 and C-202/04 Cipolla and Others [EU:C:2006:758] para 30; Joined Cases C-515/99, C-519/99 to C-524/99 and C-526/99 to C-540/99 Reisch and Others [EU:C:2002:135] paras 24–26; Case C-6/01 Anomar and Others [EU:C:2003:446] paras 39–42; Case C-84/11 Susisalo and Others [EU:C:2012:374] para 20; Case C-111/12 Ordine degli Ingegneri di Verona e Provincia and Others [EU:C:2013:100] para 35. 366 For recent applications of the Ullens de Schooten case law, see Case C-343/17 Fremoluc [EU:C:2018:754] para 24; Order of 15 May 2019 in Joined Cases C-789/18 and C-790/18 AQ e.a. and ZQ [EU:C:2019:417].

Admissibility of the Reference 93 A ruling may be necessary where EU law has been rendered applicable to internal situations by national law. The Court of Justice has considered that it has jurisdiction to give preliminary rulings on questions concerning EU law in situations where the facts of the case before the referring court are outside the direct scope of EU law but where those provisions have been rendered applicable by domestic law, which adopted, for internal situations, the same approach as that provided for under EU law.367 This is the case where the provisions of EU law have been made directly and unconditionally applicable by national law to such situations368 and the interpretation provided by the Court of Justice would be binding on the national court.369 This can be explained by the fact that, in such circumstances, it is clearly in the interest of the EU that, in order to forestall future differences of interpretation, provisions or concepts taken from EU law should be interpreted uniformly, irrespective of the circumstances in which they are to apply.370 The Court of Justice held in this respect, first, that where EU law is made applicable by national provisions, it is for the national court alone to assess the precise scope of that reference to EU law. Secondly, the Court of Justice is confined to considering provisions of EU law only. Thus, in its judgment, the Court of Justice cannot take account of the general scheme of the provisions of domestic law which, while referring to EU law, define the extent of that reference. In that regard, consideration of the limits which the national legislature may have placed on the application of EU law to purely internal situations, to which it is applicable only through the operation of the national legislation, is a matter for domestic law and hence falls within the exclusive jurisdiction of the courts of the Member State.371

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(iv) Inapplicability of EU Law Rationae Temporis EU law must be applicable rationae temporis. The Court of Justice can interpret EU law only as regards its application in a new Member State with effect from the date of that Member State’s accession to the EU.372 As a consequence, the Court of Justice will decline to give a preliminary ruling where the facts in the main proceedings occurred before the accession of a new Member State to the EU, unless the subject matter of the main proceedings is not a situation which has produced all its effects before the accession of the Member State concerned to the EU.373 The fact 367 Joined Cases C-297/88 and C-197/89 Dzodzi [EU:C:1990:360] para 36; Case C-3/04 Poseidon Chartering [EU:C:2006:176] para 15; Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08 Salahadin Abdulla and Others [EU:C:2010:105]; Case C-313/12 Romeo [EU:C:2013:718] para 21. A contrario, Case C-710/17 CCC – Consorzio Cooperative Costruzioni [EU:C:2019:116] para 25. 368 Case C-346/93 Kleinwort Benson [EU:C:1995:85] para 16; Case C-482/10 Cicala [EU:C:2011:868] para 19; Case C-583/10 Nolan [EU:C:2012:638] para 47; Case C-313/12 Romeo [EU:C:2013:718] para 23. 369 Case C-313/12 Romeo [EU:C:2013:718] para 33; Order of 3 September 2015 in Case C-456/14 Orrego Arias [EU:C:2015:550] para 24. 370 Joined Cases C-297/88 and C-197/89 Dzodzi [EU:C:1990:360] para 37; Case C-28/95 Leur-Bloem [EU:C:1997:369] paras 27 and 32; Case C-1/99 Kofisa Italia [EU:C:2001:10] para 32; Case C-217/05 Confederación Española de Empresarios de Estaciones de Servicio [EU:C:2006:784] para 19; Case C-280/06 ETI and Others [EU:C:2007:775] para 21; Case C-352/08 Zwijnenburg [EU:C:2010:282] para 33; Case C-603/10 Pelati [EU:C:2012:639] para 18; Case C-32/11 Allianz Hungária Biztosító and Others [EU:C:2013:160] para 20; Case C-542/14 VM Remonts and Others [EU:C:2016:578] para 17. 371 Joined Cases C-297/88 and C-197/89 Dzodzi [EU:C:1990:360] para 42; Case C-28/95 Leur-Bloem [EU:C:1997:369] para 33. 372 Case C-321/97 Andersson and Wåkerås-Andersson [EU:C:1999:307] para 31; Case C-302/04 Ynos [EU:C:2006:9] paras 36–38; Order of 9 February 2006 in Case C-261/05 Lakép and Others [EU:C:2006:98] paras 17–21; Order of 6 March 2007 in Case C-168/06 Ceramika Paradyż [EU:C:2007:139] paras 21–25; Case C-64/06 Telefónica O2 Czech Republic [EU:C:2007:348] paras 22–23; Order of 11 May 2011 in Case C-32/10 Semerdzhiev [EU:C:2011:288] para 25; Order of 5 November 2014 in Case C-254/14 VG Vodoopskrba [EU:C:2014:2354] paras 10–11; Order of 2 June 2016 in Case C-50/16 Grodecka [EU:C:2016:406] para 14; Joined Cases C-52/16 and C-113/16 SEGRO and Horváth [EU:C:2018:157] para 39. 373 Case C-318/13 X [EU:C:2014:2133] paras 22–24; Case C-364/17 Varna Holideis [EU:C:2018:500] para 25.

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94 Preliminary Rulings on Interpretation that an administrative or judicial review is carried out after the date of accession to the EU is irrelevant in that regard.374 Furthermore, the mere existence of an element after the date of accession of the Member State in question to the Union, which relates to circumstances preceding that date and which stem from those circumstances, is not sufficient to confer jurisdiction on the Court.375 (v) Contrived Disputes 2.142

The need for a ‘genuine’ dispute – the Foglia cases. The Court of Justice has stated that it would only respond to a request for a preliminary ruling where such a response is necessary to enable the referring court to settle ‘genuine’ disputes brought before it. In the Foglia cases,376 the Court of Justice, following the Opinion of Advocate General Warner, declined to give a preliminary ruling in what it considered to be an artificial dispute.377 Indeed, there was no actual dispute between the parties on any question of EU law. In fact, the Court of Justice noted that the parties to the main action had been concerned to obtain a ruling that the French system was invalid for liqueur wines by the ‘expedient of proceedings’ between two private individuals who were in agreement as to the result to be attained, the ‘artificial nature’ of which was underscored by the facts of the case. Furthermore, the case aimed at disputing, before a court of a Member State, the compatibility with EU law of the law of another Member State. Since there was no dispute between the parties on any question of EU law, the case had ‘no chance of being adequately argued’, particularly in light of the fact that the procedure provided for in Article 267 TFEU is not intended ‘to put a Member State in the position of being the sole or main protagonist on one side or the other in a case’. The Court of Justice concluded that its duty under Article 267 TFEU is ‘to supply all courts in the [Union] with the information on the interpretation of [EU] law which is necessary to enable them to settle genuine disputes which are brought before them’. Following the Court of Justice’s ruling, the referring court addressed further questions to the Court of Justice, some of which were designed to investigate the effect and extent of the previous judgment. In that second case,378 the Court of Justice again declined to provide a preliminary ruling. In its judgment, the Court emphasised that it cannot reply to questions submitted to it ‘within the framework of procedural devices arranged by the parties in order to induce the Court to give its views on certain problems of [EU] law which do not correspond to an objective requirement inherent in the resolution of a dispute’, such a declaration by the Court of Justice making it possible to prevent the application of the preliminary ruling procedure for ‘purposes other than those appropriate for it’. Special vigilance was also called for on the part of the Court of Justice ‘when in the course of proceedings between individuals, a question is referred to it with a view to permitting the national court to decide whether the legislation of another Member State is in accordance with EU law’.

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Criticisms and subsequent case law. This jurisprudence was criticised in the legal literature.379 The Foglia cases remain the only occasions on which the Court of Justice has refused

374 Order of 11 May 2017 in Case C-286/16 Exmitiani [EU:C:2017:368]. 375 Order of 11 May 2011 in Case C-32/10 Semerdzhiev [EU:C:2011:288] para 26; Case C-364/17 Varna Holideis [EU:C:2018:500] para 30. 376 Case C-104/79 Foglia 104/79 [EU:C:1980:73]; Case C-244/80 Foglia [EU:C:1981:302]. 377 Opinion of AG Warner in Case C-104/79 Foglia [EU:C:1980:22]. 378 Case C-244/80 Foglia [EU:C:1981:302]. 379 See, eg A Barav, ‘Imbroglio préjudiciel (à propos des arrêts de la Cour de justice dans l’affaire Foglia C. Novello)’ (1982) Revue trimestrielle de droit européen 431–483.

Admissibility of the Reference 95 jurisdiction on the basis of the absence of a genuine dispute, despite the argument having been raised before the Court of Justice. Thus, in Federconsorzi,380 the Court of Justice considered that nothing prevented it from giving a preliminary ruling on the interpretation of the rules of EU law referred to in a contract, and it therefore proceeded to the examination of the question referred. In Celestini,381 which, like Foglia, concerned the sale of wine (from an Italian seller to a German buyer), the Court of Justice, following its Advocate General’s Opinion that the principle set in Foglia should be ‘applied most sparingly and with the utmost caution by the Court’,382 noted that there was nothing in the case file which clearly showed that the parties to the main proceedings had jointly fabricated a dispute as a device for obtaining a preliminary ruling.383 In Idéal Tourisme,384 the Belgian State also submitted that the questions referred had the sole purpose of achieving a result which had not yet been achieved by legislation. The Court of Justice responded that the case file contained nothing to show that the parties to the main proceedings manifestly colluded to obtain a ruling from the Court by means of an artificial dispute. In TNT Traco,385 the Court of Justice confirmed that the Foglia doctrine applied in ‘exceptional circumstances’ only. In PreussenElektra,386 the Court of Justice answered the questions referred to it even though the parties in dispute were in agreement over the desired outcome of the reference, namely a declaration by the Court of Justice that a German energy law was contrary to EU law. The Court of Justice also considered that the fact that the parties in dispute belonged to the same group of companies was not capable of depriving the dispute between them of its genuine character. In Bacardi-Martini and Cellier des Dauphins,387 even though the Court of Justice, referring to its Foglia jurisprudence, held that it must display special vigilance when, in the course of proceedings between individuals, a question is referred to it with a view to permitting the national court to decide whether the legislation of another Member State is in accordance with EU law, it declined to answer the question since the referring court had failed to inform it in sufficient detail of that court’s reasons for considering that an answer to the questions was necessary to enable it to give judgment. In Mangold,388 despite the fact that several indicia indicated that the dispute, concerning age discrimination in an employment relationship, had been specifically created for the purposes of challenging the validity of the applicable national law, the Court of Justice held the reference admissible. In a recent case where the applicant in the main proceedings expressly admitted at the hearing before the Court of Justice that the dispute in the main proceedings had been provoked solely and exclusively in order to challenge the national provisions at issue, the Court of Justice, despite noting that ‘It is likely … that the dispute before the referring court is fictitious, and its real purpose is … simply to challenge those provisions’, considered that It is for the referring court, which is the sole court to have direct knowledge of the facts in the main proceedings and which is therefore best placed to make the necessary determinations, to examine whether that is the case and, if so, to draw any inferences provided for under national law for the purposes of the decision it is called upon to deliver.389

380 Case

C-88/91 Federconsorzi [EU:C:1992:276] paras 6–9. C-105/94 Celestini [EU:C:1997:277] para 22. 382 Opinion of AG Fennelly in Case C-105/94 Celestini [EU:C:1996:350] para 24. 383 Case C-105/94 Celestini [EU:C:1997:277] para 23. 384 Case C-36/99 Idéal tourisme [EU:C:2000:405] paras 19–22. 385 Case C-340/99 TNT Traco [EU:C:2001:281] para 31. 386 Case C-379/98 PreussenElektra [EU:C:2001:160] paras 41–46. 387 Case C-318/00 Bacardi-Martini and Cellier des Dauphins [EU:C:2003:41] paras 45–46. 388 Case C-144/04 Mangold [EU:C:2005:709]. 389 Case C-432/14 O [EU:C:2015:643] paras 15–17. 381 Case

96 Preliminary Rulings on Interpretation For similar reasons, in Gauweiler,390 the Court of Justice dismissed an argument that the dispute in the main proceedings was contrived and artificial.

2.2.4.3. Admissibility of the Reference – Issues Related to the Form of the Order for Reference 2.144

Importance of the order for reference. It is the order for reference which serves as a basis for the procedure before the Court of Justice, and not the national case file which may be provided to it by the referring court or tribunal. That case file may, in some circumstances, help the Court of Justice to have a better understanding of the facts and procedure of the case before the national judge. However, that case file is neither translated nor notified to the interest parties mentioned in Article 23 of the Statute. It is therefore of utmost importance that the order for reference meets a certain number of requirements.

2.145

Requirements initially stemming from the case law. Article 267 TFEU does not set any requirements for the form and content of the order of reference which is submitted to the Court of Justice. Until the adoption of the CJ RoP of 2012, the only requirement, which was derived from Article 267 TFEU, was that the interpretation sought had to be ‘necessary to enable the [national court] to give judgment’. Nonetheless, in order to allow a constructive dialogue with the referring court, and despite the imposition of specific requirements, an order for reference had to be formulated in a comprehensive and detailed manner, in order to enable the Court of Justice to provide an answer based on a sufficient understanding of the legal questions involved. Indeed, an ill-prepared order for reference may result in a preliminary ruling devoid of real usefulness. Confronted for the first time with laconic orders for reference, the Court of Justice, in its Telemarsicabruzzo cases, pointed out that the need to provide an interpretation of EU law which is useful for the national court makes it necessary for the latter to define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based. The Court of Justice thus noted that, although it had been provided with some information by the file submitted by the national court and the written observations, that information was fragmentary and did not enable it, in the absence of adequate knowledge of the facts underlying the main proceedings, to interpret the EU rules at stake in the light of the situation at issue, as had been requested by the national judge.391 The cases were therefore dismissed as inadmissible.

2.146

Article 94 of the CJ RoP. The CJ RoP of 2012 set out the formal requirements applying to orders for reference. Article 94, entitled ‘Content of the request for a preliminary ruling’, reads as follows: In addition to the text of the questions referred to the Court for a preliminary ruling, the request for a preliminary ruling shall contain: (a) a summary of the subject matter of the dispute and the relevant findings of fact as determined by the referring court or tribunal, or, at least, an account of the facts on which the questions are based; (b) the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case law;

390 Case C-62/14 Gauweiler and Others [EU:C:2015:400] para 24. 391 Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo and Others [EU:C:1993:26]. This case law was followed in Order of 19 March 1993 in Case C-157/92 Banchero [EU:C:1993:107] para 4; Order of 7 April 1995 in Case C-167/94 Grau Gomis and Others [EU:C:1995:113] para 9.

Admissibility of the Reference 97 (c) a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of European Union law, and the relationship between those provisions and the national legislation applicable to the main proceedings. While the subparagraphs (a) and (b) concern the description of the factual and legal background of the case, the subparagraph (c) relates to the reasoning of the reference as such.

The requirements set out in Article 94 of the CJ RoP are mandatory. It follows from the wording of Article 94 of the CJ RoP that the request for a preliminary ruling ‘shall contain’ a number of requirements, which, as the Court of Justice has stated on numerous occasions, must be observed scrupulously by national courts and tribunals.392 Indeed, these are of utmost importance, since the order for reference is the only document which is translated (or, as the case may be, partly translated) (cf para 4.461) in all official languages of the EU so as to enable interested parties, in particular Members States and relevant EU institutions or bodies, to assess their own need to take part in the proceedings, that is, to submit written and/or oral observations concerning the case. Any order for reference which does not comply with the requirements set out in Article 94 of the CJ RoP will be declared inadmissible.393 However, since such an inadmissibility is based on purely formal grounds, the national court is not prevented from submitting a new request that meets the criteria laid down in this provision.

2.147

The order for reference must contain the relevant findings of fact. The order for reference must contain a summary of the subject matter of the dispute and the relevant findings of fact as determined by the referring court or tribunal, or, at least, an account of the facts on which the questions are based. The Court of Justice has in this regard repeatedly held that the need to provide an interpretation of EU law which will be of use to the national court makes it necessary for the national court to define such a factual context.394 The purpose of this requirement is not to enable the Court of Justice to decide the case on the merits, but to assess the applicable EU rules, since the Court of Justice is empowered to rule on the interpretation of EU provisions only on the basis of the facts which the national court puts before it.395 If the factual context is not sufficiently described, the Court of Justice may not be in a position to determine whether EU law applies and, as a consequence, whether it has jurisdiction to hear the case396 or whether a question raised is necessary for the referring court to give judgment.397 Where the facts stated are insufficient, the Court of Justice may, depending on the circumstances, ask the national court for further information pursuant to Article 101 of the CJ RoP,398 leave some aspects of a question open399 or simply declare the reference inadmissible. A mere reference to facts stated in the case file or in another

2.148

392 Order of 3 July 2014 in Case C-19/14 Talasca [EU:C:2014:2049] para 21; Order of 12 May 2016 in Joined Cases C-692/15 to C-694/15 Security Service [EU:C:2016:344] para 18; Order of 18 February 2016 in Case C-325/15 Ś. and Others [EU:C:2016:107] para 29. 393 See, eg Order of 21 March 2018 in Case C-252/17 Vadillo González [EU:C:2018:202]. 394 Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo and Others [EU:C:1993:26] para 6; Order of 19 March 1993 in Case C-157/92 Banchero [EU:C:1993:107] para 4; Order of 26 April 1993 in Case C-386/92 Monin Automobiles [EU:C:1993:153] para 6; Order of 7 April 1995 in Case C-167/94 Grau Gomis and Others [EU:C:1995:113] para 8. 395 Order of 4 June 2015 in Case C-578/14 Argenta Spaarbank [EU:C:2015:372] para 14; Case C-235/14 Safe Interenvios [EU:C:2016:154] para 114; Order of 16 July 2015 in Case C-299/15 Striani and Others [EU:C:2015:519] para 26. 396 Order of 12 May 2016 in Joined Cases C-692/15 to C-694/15 Security Service [EU:C:2016:344] paras 24–29. 397 Case C-83/91 Meilicke [EU:C:1992:332] para 26; Joined Cases C-10/14, C-14/14 and C-17/14 Miljoen and Others [EU:C:2015:608] para 88. 398 Where the national court does not respond to the request of the Court of Justice, the reference is rejected as inadmissible. See Order of 22 June 2017 in Joined Cases C-556/15 and C-22/16 Fondul Proprietatea [EU:C:2017:494] para 38. 399 Case C-266/96 Corsica Ferries France [EU:C:1998:306] para 25; Case C-236/98 JämO [EU:C:2000:173] para 34.

98 Preliminary Rulings on Interpretation ruling of the Court of Justice has been considered insufficient in this regard,400 though the Court, given the spirit of collaboration which must govern a reference for a preliminary ruling, has shown some flexibility in this respect where the legal and factual context is already substantially known by reason of a previous preliminary reference made by the same court and concerning the same parties.401 2.149

The order for reference must contain the applicable national provisions. The order for reference must contain the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case law. In this regard, the national court must clearly identify the national provisions at stake, as well as the content thereof.402 It is necessary to provide precise references.403 The Court of Justice has also held that it may be convenient, in certain circumstances, for questions of purely national law to be settled at the time the reference is made (cf para 2.77). Since the preliminary ruling procedure is not concerned with the interpretation of national laws or regulations, any inaccuracies in the description of the relevant national provisions given by the national court in its judgment requesting a preliminary ruling cannot deny the Court of Justice’s jurisdiction to reply to the question referred to it by the national court.404

2.150

The order for reference must identify the EU law provisions relevant to the case. The relevant EU law provisions should be identified as accurately as possible in the order for reference. It is essential that the national court should give at the very least some explanation of the reasons for the choice of the EU law provisions of which it requests an interpretation and on the link it establishes between those provisions and the national legislation applicable to the dispute.405 Where the question asked does not specifically state which provisions of EU law are in issue, the Court of Justice may extract from all the factors provided by the national court, and in particular from the statement of grounds contained in the reference, the elements of EU law requiring an interpretation, having regard to the subject matter of the dispute. Nonetheless, where the national court does not give any indication as to the EU law provisions which it requires to be interpreted or any explanation of the link it establishes between those provisions and the dispute in the main proceedings or the subject matter of that dispute, the question is inadmissible.406

2.151

The order of reference must contain a statement of reasons justifying the reference. A request for a preliminary ruling must contain a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation of a provision of EU law, and the relationship between that provision and the national legislation applicable to the main proceedings. The national court must therefore clearly set out, in its own words, the precise reasons why it reckons that a preliminary ruling is necessary.407 It is thus incumbent on the national court to give at least some explanation of the reasons for the choice of the EU law provisions of which it requests

400 Order of 11 February 2004 in Joined Cases C-438/03, C-439/03, C-509/03 and C-2/04 Cannito and Others [EU:C:2004:85] paras 10–12; Order of 6 October 2006 in Case C-436/05 De Graaf and Daniels [EU:C:2006:656] para 16; Order of 27 October 2005 in Case C-234/05 BVBA De Backer [EU:C:2005:662] para 15. 401 Joined Cases C-133/93, C-300/93 and C-362/93 Crispoltoni and Others [EU:C:1994:364] paras 18–20. 402 Order of 18 November 2011 in Case C-519/10 Colapietro [EU:C:2011:758] para 30. 403 Recommendations to national courts and tribunals, in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1) para 16. 404 Joined Cases C-209/84 to C-213/84 Asjes and Others [EU:C:1986:188] para 12. 405 Order of 7 April 1995 in Case C-167/94 Grau Gomis and Others [EU:C:1995:113] para 9. 406 Case C-380/05 Centro Europa 7 [EU:C:2008:59] paras 55–56. 407 Case C-64/16 Associação Sindical dos Juízes Portugueses [EU:C:2018:117] para 20; Case C-378/17 The Minister for Justice and Equality and Commissioner of the Garda Síochána [EU:C:2018:979] para 28.

The Preliminary Ruling and its Effects 99 an interpretation.408 Where the order for reference contains no explanation as to the reasons that prompted the referring court to inquire about the interpretation of EU law and where it is moreover not possible to establish from the description in that order of the national factual and legislative context how that provision of EU law might be capable of having any influence on the dispute in the main proceedings, the question must be declared inadmissible insofar as it relates to the interpretation of this EU act.409 Furthermore, it is important to note that, pursuant to Article 99 of the CJ RoP, the Court of Justice may decide to rule by reasoned order, notably where a question referred is identical to a question on which the Court has already ruled or where the reply to such a question may be clearly deduced from existing case law. A referring court wishing to prompt a reversal of the existing case law should therefore specifically raise this issue in the statement of reasons justifying the reference. The order for reference must contain the text of the questions referred to the Court of Justice. The Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings specify that the questions themselves should appear in a separate and clearly identified section of the order for reference, preferably at the beginning or the end, and that it must be possible to understand them on their own terms, without referring to the statement of the grounds for the request, which will, however, provide the necessary background for a proper understanding of the implications of the case.410 Even though the absence of compliance with this requirement will not necessarily make the reference inadmissible,411 it is clear that where the order for reference does not contain specific questions addressed to the Court of Justice, allow the questions on which the national court wishes the Court of Justice to give a preliminary ruling to be discerned with any certainty or furnish sufficient information to comply with the abovementioned requirements, the order for reference will not enable the Court of Justice to give a useful interpretation of EU law and will therefore be considered manifestly inadmissible.412

2.152

2.2.5. The Preliminary Ruling and its Effects 2.2.5.1. Formulation and Reformulation of the Questions Referred The power to formulate the questions to be referred is vested in the national court. It is for the referring court or tribunal alone, and not the parties, to decide the manner in which the questions referred for preliminary ruling are to be worded. Although that court or tribunal is at liberty to request the parties to the dispute before it to suggest wording suitable for the questions to be referred, it is for it alone to decide ultimately both their form and content.413 The parties therefore cannot alter the wording of those questions414 and it is not necessary for the Court of

408 Order of 23 March 2012 in Case C-348/11 Thomson Sales Europe [EU:C:2012:169]. 409 Order of 3 May 2012 in Case C-185/12 Ciampaglia [EU:C:2012:273] para 5; Case C-370/12 Pringle [EU:C:2012:756] paras 86 and 88; Order of 17 July 2014 in Case C-505/13 Yumer [EU:C:2014:2129]; Case C-492/14 Essent Belgium [EU:C:2016:732] paras 39–42. 410 Recommendations to national courts and tribunals, in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1) para 19. 411 Case C-172/08 Pontina Ambiente [EU:C:2010:87] para 28. 412 Order of 21 December 1995 in Case C-307/95 Max Mara [EU:C:1995:465] paras 9–10. 413 Case C-104/10 Kelly [EU:C:2011:506] paras 64–65. 414 Case C-297/14 Bruyère and Others [EU:C:1996:124] para 19; Case C-466/00 Kaba [EU:C:2003:127] para 30.

2.153

100 Preliminary Rulings on Interpretation Justice to examine questions submitted to it by the parties other than those that were the subject of the national court’s order for reference.415 2.154

The Court of Justice may reformulate the questions referred … The Court of Justice is not bound by the formulation of a question for a preliminary ruling put to it by a national court or tribunal. In this context, it is noteworthy that the operative part of preliminary rulings is in principle drafted as a response to the questions referred for preliminary ruling, as reformulated by the Court of Justice. If the questions referred by the referring court or tribunal have been improperly formulated or go beyond the scope of the powers conferred upon the Court of Justice by Article 267 TFEU, the latter will usually extract from all the factors provided by the national court and, in particular, from the statement of grounds in the order for reference the elements of EU law requiring an interpretation having regard to the subject matter of the dispute. Reformulation of the national court’s questions may occur in a number of instances. First, where the questions referred aim at requesting from the Court of Justice an examination of the compatibility of national law with EU law, which lies outside the scope of its jurisdiction under Article 267 TFEU (cf para 2.104), the Court of Justice will usually provide the referring court with guidance as to the interpretation of EU law necessary to enable that court to rule itself on the compatibility of the national rules with EU law.416 Secondly, where the questions referred do not specifically mention the provisions of EU law whose interpretation is sought, or refer to provisions which may not be applicable to the case at hand, the Court of Justice has a margin of manoeuvre to extract from the order for reference all elements of EU law requiring an interpretation. Thus, even if, formally, the referring court or tribunal has limited its question to the interpretation of a particular provision, that does not prevent the Court of Justice from providing the referring court with all the elements of interpretation of EU law necessary to decide the case pending before it, whether or not the referring court has referred to them in the wording of its questions or even mentioned them in the order for reference.417 Thirdly, where the questions referred are formulated in a very complicated way, without identifying the main issues at stake, the Court of Justice may simplify the questions so as to focus on the core issues.418 Fourthly, where multiple questions are referred which concern the interpretation of a single provision of EU law, the Court of Justice may treat all questions as one. Fifthly, where the answer to one question renders the other questions devoid of purpose, the Court of Justice will refrain from responding to the questions which have become void of purpose;419 in this context, the Court of Justice can answer the questions referred in any order it sees fit.

2.155

… without altering the substance of the questions referred. Indeed, to alter the substance of questions referred for a preliminary ruling would be incompatible with the Court’s function under Article 267 TFEU and with its duty to ensure that interested parties are given the opportunity to submit observations, bearing in mind that only the order of the referring court is notified to them.420 415 Case C-154/05 Kersbergen-Lap and Dams-Schipper [EU:C:2006:449] para 21; Case C-89/14 A2A [EU:C:2015:537] para 44. 416 Case C-443/06 Hollmann [EU:C:2007:600] para 21; Case C-25/11 Varzim Sol [EU:C:2012:94] para 28; Case C-416/14 Fratelli De Pra and SAIV [EU:C:2015:617] para 27. 417 Joined Cases C-110/78 and C-111/78 van Wesemael and Others [EU:C:1979:8] para 21; Case C-304/00 Strawson and Gagg & Sons [EU:C:2002:695] paras 57–58; Case C-420/06 Jager [EU:C:2008:152] para 47; Case C-35/85 Tissier [EU:C:1986:143] para 9; Joined Cases C-544/13 and C-545/13 Abcur [EU:C:2015:481] para 34; Case C-15/15 New Valmar [EU:C:2016:464] paras 28–29; Case C-303/15 M. and S. [EU:C:2016:771] para 16. 418 Case C-347/09 Dickinger and Ömer [EU:C:2011:582] paras 29–40. 419 eg Case C-670/16 Mengesteab [ECLI:EU:C:2017:587] para 104. 420 Case C-235/95 Dumon and Froment [EU:C:1998:365] para 26.

The Preliminary Ruling and its Effects 101

2.2.5.2. Effect – Binding Nature A preliminary ruling is binding on the referring court or tribunal. A preliminary ruling conclusively determines a question of EU law, and is binding on the national court for the purposes of the decision to be given in the main proceedings if it entails the application of EU law.421 It is also binding on any higher court that may have to decide the same dispute.422 In this context, the national court or tribunal has an obligation, to the full extent of its discretion under national law, to interpret and apply domestic law in accordance with the requirements of EU law and, to the extent that such an interpretation is not possible in relation to the relevant Treaty provisions, to disapply any provision of domestic law which is contrary to those provisions.423 It must therefore, if necessary, refuse of its own motion to apply any conflicting provision of national legislation, including procedural provisions.424 It must also disregard any national case law, including that of a higher court, which it considers inconsistent with EU law.425 The Court of Justice thus ruled that any national legal provision and any legislative, administrative or judicial practice limiting the powers of the national court in that regard would impair the effectiveness of Article 267 TFEU and are incompatible with EU law.426

2.156

The referring court or tribunal may make a fresh request for a preliminary ruling to the Court of Justice. A national court or tribunal to which a preliminary ruling is addressed is nonetheless entitled to make a new reference to the Court of Justice on any question where it takes the view that it is necessary before giving judgment in the main proceedings. Such a procedure may be justified when the national court or tribunal encounters difficulties in understanding or applying the judgment, when it refers a fresh question of law to the Court of Justice, or when it submits new considerations which might lead the Court to give a different answer to a question submitted earlier.427 It is, however, not permissible to use the right to refer further questions to the Court of Justice as a means of contesting the validity of the judgment delivered previously, as this would call into question the allocation of jurisdiction as between national courts and the Court of Justice under Article 267 TFEU.428

2.157

A preliminary ruling on interpretation has an effect erga omnes. The binding effect of preliminary rulings on interpretation extends to all national authorities. These rulings establish the correct interpretation of the law even if, from a formal point of view, they are only addressed to

2.158

421 Case C-29/68 Milch-, Fett- und Eierkontor [EU:C:1969:27] para 2; Case C-52/76 Benedetti [EU:C:1977:16] para 26; Order of 5 March 1986 in Case C-69/85 Wünsche [EU:C:1986:104] para 13; Case C-446/98 Fazenda Pública [EU:C:2000:691] para 49; Case C-173/09 Elchinov [EU:C:2010:581] para 29; Case C-62/14 Gauweiler and Others [EU:C:2015:400] para 16; Case C-689/13 PFE [EU:C:2016:199] para 38. 422 K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, Oxford, 2014) 243. 423 Case C-157/86 Murphy and Others [EU:C:1988:62] para 11; Case C-208/05 ITC [EU:C:2007:16] para 70; Case C-555/07 Kücükdeveci [EU:C:2010:21] para 53. 424 Case C-106/77 Simmenthal [EU:C:1978:49] paras 21 and 24; Case C-314/08 Filipiak [EU:C:2009:719] para 81; Case C-617/10 Åkerberg Fransson [EU:C:2013:105] para 45; Joined Cases C-188/10 and C-189/10 Melki and Abdeli [EU:C:2010:363] para 43; Case C-173/09 Elchinov [EU:C:2010:581] para 31; Case C-136/12 Consiglio Nazionale dei Geologi and Autorità garante della concorrenza e del mercato [EU:C:2013:489] para 33; Case C-689/13 PFE [EU:C:2016:199] para 40. 425 Case C-173/09 Elchinov [EU:C:2010:581] para 30; Case C-416/10 Križan and Others [EU:C:2013:8] para 69; Case C-689/13 PFE [EU:C:2016:199] para 38. 426 Case C-106/77 Simmenthal [EU:C:1978:49] para 22; Case C-213/89 Factortame and Others [EU:C:1990:257] para 20; Case C-617/10 Åkerberg Fransson [EU:C:2013:105] para 46; Joined Cases C-188/10 and C-189/10 Melki and Abdeli [EU:C:2010:363] para 44; Case C-689/13 PFE [EU:C:2016:199] para 39; Case C-614/14 Ognyanov [EU:C:2016:514] para 33. 427 Order of 5 March 1986 in Case C-69/85 Wünsche [EU:C:1986:104] para 15; Case C-466/00 Kaba [EU:C:2003:127] para 39; Order of 23 March 2016 in Case C-319/15 Overseas Financial and Oaktree Finance [EU:C:2016:268] para 34; Order of 30 June 2016 in Case C-634/15 Sokoll-Seebacher and Naderhirn [EU:C:2016:510] para 19. 428 Order of 5 March 1986 in Case C-69/85 Wünsche [EU:C:1986:104] para 15.

102 Preliminary Rulings on Interpretation the referring court. They do not create or alter the law, but are purely declaratory.429 Since the main purpose of Article 267 TFEU is to ensure the uniform application of EU law, a preliminary ruling on interpretation also binds national courts other than the court which made the reference.430 Indeed, the fulfilment of the objectives of the EU requires that the rules of EU law are fully applicable at the same time and with identical effects over the whole territory of the Union.431 These rules must therefore be fully and uniformly applied in all the Member States from the date of their entry into force and for as long as they continue to be in force, and any national court must, within its own jurisdiction, protect the rights conferred upon individuals by EU law.432 Since Member States have an obligation take all appropriate measures to fulfil their obligations arising from EU law and to abstain from any measure which could jeopardise the attainment of the objectives of the EU treaties, they must comply with the judgments of the Court of Justice, these being binding on all the authorities of Member States,433 including, for matters within their jurisdiction, the courts.434 It follows that any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of EU law by withholding from the national court the power to do everything necessary at the moment of application of EU rules to set aside national legislative provisions which might prevent, even temporarily, those rules from having full force and effect are incompatible with those requirements.435

2.2.5.3. Effect – Retroactive Effect 2.159

The interpretative ruling has a retroactive effect. The interpretation which the Court of Justice gives to a rule of EU law clarifies and defines where necessary the meaning and scope of that rule as it must have been understood and applied from the time of its coming into force. It follows that the rule so interpreted must be applied by national courts even to legal relationships arising and established before the judgment ruling on the request for interpretation.436 As already stated (cf para 2.158), a preliminary ruling does not create or alter the law, but is purely declaratory, with the consequence that in principle it takes effect from the date on which the rule interpreted entered into force.437 A preliminary ruling can therefore have effects on legal relationships which arose before its delivery. It follows, in particular, that a rule of EU law so interpreted must be applied by an administrative body within the sphere of its competence even to legal relationships which arose and were formed before delivery of the Court’s judgment ruling on the question referred to it,438 provided that litigants are in a position, under their national procedural rules, to

429 Case C-2/06 Kempter [EU:C:2008:78] para 35; Joined Cases C-89/10 and C-96/10 Q-Beef and Bosschaert [EU:C:2011:555] para 48; Case C-429/12 Pohl [EU:C:2014:12] para 30. 430 Case C-66/80 International Chemical Corporation [EU:C:1981:102] paras 9–13. 431 Case C-48/71 Commission v Italy (national artistic heritage) [EU:C:1972:65] para 8. 432 Case C-106/77 Simmenthal [EU:C:1978:49] paras 14 and 16. 433 Joined Cases C-231/06 to C-233/06 Jonkman and Others [EU:C:2007:373] para 38. 434 Case C-2/97 IP [EU:C:1998:613] para 26; Case C-344/98 Masterfoods and HB [EU:C:2000:689] para 49. 435 Case C-106/77 Simmenthal [EU:C:1978:49] para 22; Case C-213/89 Factortame and Others [EU:C:1990:257] para 20; Case C-5/14 Kernkraftwerke Lippe-Ems [EU:C:2015:354] para 33. 436 Case C-61/79 Denkavit italiana [EU:C:1980:100] para 16; Case C-222/82 Apple and Pear Development Council [EU:C:1983:370] para 38; Case C-415/93 Bosman [EU:C:1995:463] para 141; Case C-262/12 Association Vent De Colère! and Others [EU:C:2013:851] para 39; Case C-453/00 Kühne & Heitz [EU:C:2004:17] para 21; Case C-110/15 Microsoft Mobile Sales International and Others [EU:C:2016:717] para 59. 437 Case C-2/06 Kempter [EU:C:2008:78] para 35; Joined Cases C-89/10 and C-96/10 Q-Beef and Bosschaert [EU:C:2011:555] para 48; Case C-429/12 Pohl [EU:C:2014:12] para 30. 438 Case C-291/03 MyTravel [EU:C:2005:591] para 17.

The Preliminary Ruling and its Effects 103 exercise the rights conferred on them by the EU provision concerned.439 Where an administrative decision is final, following the expiry of the reasonable time limits for legal remedies or by exhaustion of those remedies, EU law does not require that administrative bodies be placed under an obligation, in principle, to reopen an administrative decision which has become final. The Court of Justice has nonetheless considered that an administrative body does have an obligation to review a final administrative decision, where an application for such review is made to it, in order to take account of the interpretation of the relevant provision given in the meantime by the Court. Such obligation exists where, first, under national law, the administrative body has the power to reopen that decision; secondly, the administrative decision in question has become final as a result of a judgment of a national court ruling at final instance; thirdly, that judgment is, in the light of a decision given by the Court of Justice subsequent to it, based on a misinterpretation of EU law which was adopted without a question being referred to the Court for a preliminary ruling; and, fourthly, the person concerned complained to the administrative body immediately after becoming aware of that decision of the Court.440 Exceptionally, the Court of Justice may limit the retroactive effect of a preliminary ruling. In application of the general principle of legal certainty, and in taking account of the serious effects which its judgment might have, as regards the past, on legal relationships established in good faith, the Court of Justice may exceptionally limit the retroactive effect of a preliminary ruling. Given the necessity to apply EU law in a uniform manner, it is for the Court of Justice alone to decide whether any temporal limitation is to be placed on its ruling.441 Even where the Court of Justice provides for the temporal limitation of the effects of a preliminary ruling, persons who have taken action in good time in order to safeguard their rights will not be affected by such a limitation.442

2.160

Procedurally, a temporal limitation is allowed only in the actual judgment ruling upon the interpretation sought. A limitation can only be imposed in the first judgment in which the provision of EU law in issue is being interpreted by the Court of Justice, never in any later judgments. Indeed, there must necessarily be a unique moment of determination for the effects in time of the interpretation sought from it of a provision of EU law, in order to guarantee the equal treatment of the Member States and of other persons subject to EU law.443 This underscores the importance of Member States being, on the one hand, sufficiently informed by the contents of the order for reference of the possible scope of any judgment of the Court of Justice and, on the other hand, the need for Member States to participate actively in reference procedures, even if they originate in the jurisdictions of other Member States. It may also occur that, after a ruling in which the Court of Justice decided to limit the temporal effects, a similar legal issue is raised in a subsequent case. In such a situation, the Court of Justice will likewise restrict the effects of the judgment delivered in the subsequent case as of the date of the first judgment.444

2.161

439 Case C-231/96 Edis [EU:C:1998:401] para 19. 440 Case C-453/00 Kühne & Heitz [EU:C:2004:17] paras 24–28; Joined Cases C-392/04 and C-422/04 i-21 Germany and Arcor [EU:C:2006:586] para 52; Case C-2/06 Kempter [EU:C:2008:78] paras 38–39. 441 Case C-43/75 Defrenne [EU:C:1976:56] paras 72–75; Case C-61/79 Denkavit italiana [EU:C:1980:100] paras 17–18; Case C-415/93 Bosman [EU:C:1995:463] para 142. 442 Case C-292/88 Barber [EU:C:1990:209] para 44; Case C-163/90 Legros and Others [EU:C:1992:326] para 30; Case C-126/94 Cadi Surgelés and Others [EU:C:1996:423]. 443 Case C-61/79 Denkavit italiana [EU:C:1980:100] para 18; Case C-292/04 Meilicke and Others [EU:C:2007:132] paras 36–37; Case C-586/14 Budișan [EU:C:2016:421] para 47; Order of 3 February 2014 in Case C-97/13 Câmpean and Ciocoiu [EU:C:2014:229] para 40. 444 Joined Cases C-485/93 and C-486/93 Simitzi [EU:C:1995:281] paras 31–32; Case C-126/94 Cadi Surgelés and Others [EU:C:1996:423] para 33.

104 Preliminary Rulings on Interpretation 2.162

Substantively, a temporal limitation is only allowed if certain criteria are met. In determining whether or not to limit the temporal effect of a judgment, the Court of Justice cannot go so far as to diminish the objectivity of the law and compromise its future application on the ground of the possible repercussions which might result, as regards the past, from a judicial decision.445 Limiting the effects of a judgment giving a preliminary ruling on interpretation is therefore quite exceptional, and the Court of Justice has taken such a step only in certain specific circumstances. Two essential criteria must therefore be fulfilled before such a limitation can be imposed: first, those concerned must have acted in good faith (cf para 2.163), and secondly, there must be a risk of serious difficulties (cf para 2.164).446

2.163

Those concerned must have acted in good faith. A temporal limitation of the effects of a preliminary ruling of the Court of Justice will only be decided if those concerned have acted in good faith. The Court of Justice therefore considered it inappropriate to limit the temporal effects of a judgment: (i) where the action brought before the national court followed from a well-established interpretation of EU law, the interested parties therefore being sufficiently informed thereof;447 (ii) where the relevant government had not shown that, at the time when the contested measure was introduced, EU law could reasonably be construed as permitting it and where the prohibition is quite apparent from the wording of the relevant EU provision, the latter having also been defined by the Court of Justice and the Commission having drawn that government’s attention to the measure before its introduction;448 or (iii) where there was ‘a long-standing, copious and varied body of case law which has dispelled all doubts regarding the scope of that provision’, and the Commission has even initiated infringement proceedings with respect to that provision.449 On the contrary, the Court of Justice has agreed to limit the temporal effects of a judgment: (i) where its judgment dealt for the first time with a particular question of law or, in an area where a policy has been gradually established, where the attitude adopted by the relevant EU institution might reasonably have led the national authorities concerned to believe that a relevant legislation was in conformity with EU law;450 or (ii) where it was the first time that it had been called on to interpret the EU act at stake and its earlier case law may have created a situation of uncertainty as to the right of individuals to rely before a national court on said act.451 In any event, a national government cannot invoke good faith where the contested measure has been adopted in order to maintain a regime previously deemed to be incompatible with EU law by the Court of Justice,452 nor where that government could not have been unaware of the prohibition at issue.453

2.164

The judgment of the Court of Justice must create a risk of serious difficulties. A temporal limitation of the effects of a preliminary ruling of the Court of Justice will only be decided if said ruling creates a risk of serious difficulties for the Member State concerned. The Court of

445 Case C-24/86 Blaizot and Others [EU:C:1988:43] para 30; Case C-163/90 Legros and Others [EU:C:1992:326] para 30; Case C-209/03 Bidar [EU:C:2005:169] para 66. 446 Case C-57/93 Vroege [EU:C:1994:352] para 21; Case C-92/11 RWE Vertrieb [EU:C:2013:180] para 59; Case C-242/09 Albron Catering [EU:C:2010:625] para 38; Case C-190/12 Emerging Markets Series of DFA Investment Trust Company [EU:C:2014:249] para 109; Case C-385/17 Hein [EU:C:2018:1018] para 57. 447 Case C-61/79 Denkavit italiana [EU:C:1980:100] paras 19–21. 448 Case C-200/90 Dansk Denkavit and Poulsen Trading [EU:C:1992:152] paras 21–23. 449 Joined Cases C-367/93 to C-377/93 Roders and Others [EU:C:1995:261] para 45. 450 Case C-24/86 Blaizot and Others [EU:C:1988:43] paras 31–33; Case C-437/97 EKW and Wein & Co [EU:C:2000:110] para 58. 451 Case C-262/96 Sürül [EU:C:1999:228] paras 109–112. 452 Order of 3 February 2014 in Joined Cases C-97/13 and C-214/13 Câmpean and Ciocoiu [EU:C:2014:229] para 38. 453 Case C-262/12 Association Vent De Colère! and Others [EU:C:2013:851] para 41.

The Preliminary Ruling and its Effects 105 Justice has taken that step only in rather specific circumstances, where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that both individuals and national authorities had been led into adopting practices which did not comply with EU law by reason of objective, significant uncertainty regarding the implications of EU provisions, to which the conduct of other Member States or the Commission may even have contributed.454 This has been the case, for instance, where the reopening of the question of legal relationships which had been definitively determined before the delivery of the ruling would ‘retroactively throw the financing of the social security systems of the Member States into confusion’.455 On the contrary, administrative and practical difficulties arising from the re-examination of numerous files cannot be considered as serious difficulties.456 Also, it is settled case law that the financial consequences which might ensue for a Member State from a preliminary ruling do not in themselves justify limiting the temporal effect of the ruling.457 Such consequences which occur owing to the unlawfulness of a tax or imposition have never in themselves justified limiting the effects of a judgment of the Court of Justice, since, on the one hand, the most serious infringements would receive more lenient treatment insofar as it is those infringements that are likely to have the most significant financial implications for Member States and, on the other hand, this would considerably diminish the judicial protection of the rights which taxpayers have under EU tax legislation.458 It is for the party seeking to have a limitation of the temporal effects to put forward all relevant elements. The party wishing that the Court of Justice limits the temporal effect of a judgment must put forward factors capable of supporting its argument that the judgment could entail serious difficulties if its temporal effects were not limited459 or that EU law could reasonably be understood as authorising the national measure at issue.460 It is also for the Member State concerned to provide figures which establish that there is a risk of serious economic repercussions.

454 Case C-184/99 Grzelczyk [EU:C:2001:458] para 53; see also Joined Cases C-367/93 to C-373/93 Roders and Others [EU:C:1995:261] para 43; Joined Cases C-197/94 and C-252/94 Bautiaa and Société française maritime [EU:C:1996:47] para 48; Case C-110/15 Microsoft Mobile Sales International and Others [EU:C:2016:717] para 61. 455 Case C-262/96 Sürül [EU:C:1999:228] para 111. 456 Case C-372/98 Cooke [EU:C:2000:558] para 43. 457 Case C-184/99 Grzelczyk [EU:C:2001:458] para 52; Case C-209/03 Bidar [EU:C:2005:169] para 68; Case C-423/04 Richards [EU:C:2006:256] para 41; Case C-262/12 Association Vent De Colère! and Others [EU:C:2013:851] para 43; Case C-110/15 Microsoft Mobile Sales International and Others [EU:C:2016:717] para 58. 458 Joined Cases C-367/93 to C-377/93 Roders and Others [EU:C:1995:261] para 46; Joined Cases C-197/94 and C-252/94 Bautiaa and Société française maritime [EU:C:1996:47] para 55. 459 Case C-402/03 Skov and Bilka [EU:C:2006:6] para 53; Case C-242/09 Albron Catering [EU:C:2010:625] para 38. 460 Joined Cases C-197/94 and C-252/94 Bautiaa and Société française maritime [EU:C:1996:47] para 50.

2.165

106

part 3 Protection against Acts of the EU

108

3.1. Action for Annulment [written by Viktor Luszcz1]

3.1.1. Overview Notion. The action for annulment is the direct avenue to which EU institutions, Member States and individual applicants can resort in order to seek protection from unlawful EU acts. By this procedure, the legality of an EU act is reviewed by the Courts on the basis of superior norms. The consequence of a successful action is the declaration by the Courts that the contested act is fully or partly void, ex tunc, from the moment of its adoption. It is important to note that only a successful action for annulment has the consequence of removing an act from the EU legal order: the incidental review of legality – the plea of illegality or the preliminary ruling on validity – may only result in the inapplicability of an EU act found to be illegal (cf paras 3.686 and 3.715). Actions for annulment are direct actions (cf para 4.15), thus the procedural rules presented in Chapter 4.2. Procedure in direct actions are applicable to them.

3.01

Forum. The power to hear and determine actions for annulment is split between the Court of Justice and the General Court (cf paras 1.19–1.21). Actions for annulment constitute the largest group of cases brought before the General Court, with over 300 such cases being initiated in 2018. Furthermore, five such actions were lodged with the Court of Justice.2

3.02

Changes brought by the Lisbon Treaty. The Treaty of Lisbon brought substantial changes in the provisions relating to the action for annulment, by codifying pre-existing case law (in particular, as regards actions directed against EU bodies, offices and agencies), adjusting former provisions to other Treaty changes and also easing the conditions for individual applicants to challenge regulatory acts.

3.03

Article 263 TFEU. Article 263 TFEU (ex Article 230 TEC) reads as follows:

3.04

The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank [ECB], other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties. It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers. The Court shall have jurisdiction under the same conditions in actions brought by the Court of A uditors, by the [ECB] and by the Committee of the Regions for the purpose of protecting their prerogatives.

1 Partner, Danubia Legal – Luszcz Law Firm. Attorney at law specialising in European and Hungarian competition and intellectual property law, member of the Budapest Bar. Previously worked 11 years as a référendaire at the General Court of the EU. 2 Source: InfoCuria – case-law search, 2018 Annual Report of the Court of Justice of the European Union, p. 44.

110 Action for Annulment Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures. Acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them. The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.

Throughout this book, the term ‘institution or body’ denotes any institution, body, office or agency of the Union within the meaning of Articles 263(1) and 265(1) TFEU, while the term ‘EU institution’ is reserved for institutions of the Union listed in Article 13(1) TEU. 3.05

Admissibility. In order to be admissible, an action for annulment needs to fulfil the following main conditions: i) It has to be directed against a reviewable act (cf Section 3.1.2. Reviewable Acts); ii) The act was adopted by one or several of the institutions or bodies whose acts can be reviewed (cf Section 3.1.3. Defendants); iii) The action must be filed by a privileged applicant (Member State, Council, Parliament, Commission), semi-privileged applicant (Court of Auditors, ECB, Committee of the Regions) or a natural or legal person by fulfilling the conditions related to the capacity and legal interest to seek the annulment, as well as to standing (cf Section 3.1.4. Applicants and Standing); iv) The application must comply with the formal requirements (cf Section 3.1.5. Formal Requirements); v) The action must be brought within the time limits set by the Treaty and the Rules of Procedure (cf Section 3.1.6. Time Limits).

3.06

Substance. As to the substance, actions for annulment must be based on one or several grounds specified in the Treaty (cf Section 3.1.7. Grounds for Review). If well founded, the action brings about the total or partial annulment of the contested act (cf Section 3.1.8. Consequences of Annulment).

3.07

An action for annulment does not suspend the application of the contested act. Article 278 TFEU provides that actions brought before the Court of Justice of the European Union shall not have suspensory effect. However, applicants may ask the EU Courts to adopt an interim measure ordering the suspension of the application of the contested act (cf Chapter 5.2. Interim Measures).3

3.1.2. Reviewable Acts 3.08

General – terminology. The application by which the party requests the annulment has to identify the contested act, which must be reviewable. If that act is not identified, or not reviewable, 3 Another alleviation of the financial burden of companies is that in some cases, such as Commission decisions imposing fines for the infringement of Arts 101 and 102 TFEU, the Commission may only request a bank guarantee and not the full payment of the fine until the judicial review is finished.

Reviewable Acts 111 the action will be declared inadmissible by the EU Courts (cf Section 5.7.1. Inadmissibility). In the case law and legal literature, the synonymous expressions ‘challengeable act’, ‘act [not] open to challenge’, ‘act [not] susceptible to review/challenge’, ‘act against which an action may lie’, ‘act [not] amenable to review’ and ‘[non-]actionable measure’ are all used for the French ‘acte attaquable’ and ‘acte non susceptible de recours’. Definition. Reviewable acts are measures producing binding legal effects (Subsection 3.1.2.1.) which are legally existent (Subsection 3.1.2.4).

3.09

Targeting a reviewable act all-important – early applications and late applications are inadmissible. It is of paramount importance to be able to determine which act is challengeable in a sequence of measures or during the correspondence between the institution or body and the party. If the applicant challenges an act which, although making clear the institution’s or body’s stance, does not in itself have binding legal effects (or is a preparatory measure paving the way to the definitive act), the General Court will reject the application as inadmissible (early application). However, by the time the Court declares the inadmissibility, the legal deadline for challenging the subsequently adopted definitive measure which produces legal effects might well have lapsed. Also, in some cases, upon receiving a letter in which the institution or body expresses its views, the party might attempt to convince it to change its position by sending another letter. However, if the institution or body merely confirms its previous position in a new letter sent in reply, that act will not be amenable to review as it is a confirmatory act. Again, in the meantime, the deadline to bring an action against the first letter in which the institution or body expressed its views might have lapsed (late application). In both cases, choosing the wrong target for the action for annulment has the practical consequence that the applicant loses his right to review.

3.10

Composite procedures – separately reviewable acts. Another issue constantly present in p ractice is the differentiation between procedural decisions whose illegality can only be challenged in an action for annulment directed against the definitive decision closing the procedure, on the one hand, and separately challengeable procedural acts, on the other. If the applicant wrongly considers an intermediate measure to be a separately challengeable act and files an application against it, it might not introduce an action for annulment against the final act. In case of doubt, applicants often challenge both acts. Otherwise, by the time the General Court dismisses the application against the intermediate measure as inadmissible, an action for annulment against the final act is likely to be out of time (cf paras 3.38–3.41).

3.11

Withdrawn, replaced, expired, annulled and non-existent acts. The application for annulment must be directed against an existent act of an EU institution or body. The question of whether the action is directed against an existent act is assessed as at the moment of filing the application.4 Two particular issues might arise in practice in this respect. First, in some very specific and narrow circumstances, the EU Courts recognised that the act was vitiated by such fundamental defects that it could not be regarded as legally existent. Secondly, sometimes it is not easy to determine whether an act of an EU institution or body has been entirely withdrawn or some of its elements still produce legal effect, or whether, by reason of its application prior to the withdrawal, its (ex tunc) annulment can still benefit the applicant (cf Subsection 3.1.2.4).

3.12

4 Case

C-77/12 P Deutsche Post v Commission [EU:C:2013:695] para 65.

112 Action for Annulment

3.1.2.1. Binding Act (i) Notion of the Binding Act 3.13

Treaty provisions. Article 263(1) TFEU provides that the Courts have the power to review (i) legislative acts (ie acts jointly adopted by the Parliament and the Council under one of the legislative procedures); (ii) acts of the Council, of the Commission and of the ECB other than recommendations and opinions; (iii) acts of the Parliament, of the European Council and of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties. By virtue of Article 288 TFEU, legislative acts – regulations and directives – and decisions are binding, whereas recommendations and opinions have no binding force. Therefore, the common denominator of the three types of reviewable acts listed in Article 263(1) TFEU is the presence of a binding act, ie an act producing legal effects. As a result, the Courts have concentrated on the presence of a binding act when determining if an action for annulment is directed against a reviewable act, which is necessary for the action to be admissible.

3.14

Interpretation of the Treaty provisions by the Courts. Not only formally adopted acts such as regulations, directives and decisions may produce binding legal effects, but at times also supposedly non-binding acts, such as opinions, recommendations and communications, and even informal measures contained in letters, emails, oral statements or constituted by physical acts. Since, in the Courts’ case law, the presence of a binding act has become the de facto criterion of admissibility, such atypical or informal measures may also be challengeable if they produce binding legal effects (cf paras 3.25–3.30). Another significant development is that the capacity to produce legal effects vis-à-vis third parties is required not only in the case of acts listed in the Treaty, but actually in respect of all types of measures, since, according to the case law, acts only affecting the institution or body internally are not amenable to review (cf paras 3.24 and 3.57). Therefore, notwithstanding the differentiation in Article 263 TFEU, the Courts seem to apply in practice the same criteria to all types of measures adopted by any institution or body.

3.15

Definition of binding acts. Binding acts are measures which have a legitimate legal basis, produce legal effects and reflect the definitive position of the institution or body.5 (ii) Legitimate Legal Basis

3.16

Expressly foreseen legal basis for adopting a binding act. The requirement of having a legitimate legal basis is fulfilled if the act is adopted upon the conclusion of an internal procedure laid down by law and by exercising a power provided for by law which is intended to produce legal effects.6 However, the form in which such acts or decisions are cast is, in principle, immaterial as regards the question whether they are open to challenge (cf para 3.25).7 The power to adopt a binding act has to be expressly foreseen; it cannot be presumed in the absence of a specific provision contained in the Treaty or in binding EU acts, such as secondary legislation.8 Nor can it be derived from the contractual relations between an institution or body and a private party.9 Without a legal basis conferring the power to adopt a binding act, a position expressed by the

5 K

Lenaerts, D Arts and I Maselis, Procedural Law of the European Union (Sweet & Maxwell, London, 2006) 206. C-182/80 Gauff Ingenieure v Commission [EU:C:1982:78] para 18. 7 See Case C-60/81 IBM v Commission [EU:C:1981:264] paras 9–10. 8 Case T-113/89 Nefarma v Commission [EU:T:1990:82] para 69. 9 Case T-107/06 Inet Hellas v Commission [EU:T:2009:506] paras 65–67. 6 Case

Reviewable Acts 113 institution or body interpreting EU legislation will be considered as a non-binding opinion or recommendation, not open to challenge.10 The Courts may look at the broader legislative context (cf para 3.32) to determine if the statement of the institution’s or body’s views on a certain matter is a binding act or not. In Vodafone España, the Commission commented on a draft measure of the Spanish telecommunication regulatory authority, which, if adopted, could have influenced the applicant’s situation. The General Court highlighted that, under the relevant provisions,11 the national regulatory authorities had to take ‘utmost account’ of the Commission’s comments, and held that this wording implied that the comments were of a non-binding nature. Only the Commission’s veto12 on the national measure could have been considered a binding act; however, the veto had not been exercised in the case at hand.13 (iii) Legal Effect Substantive rights and obligations. A change in the substantive rights or obligations of the person concerned pertains to the very notion of the ‘legal effect’.14 Without affecting rights or establishing definitive, compelling obligations,15 the act is not open to challenge. The mere fact that the institution or body decides in favour of a party as to the main subject matter of the administrative proceedings does not mean that the act cannot be challenged if it entails other minor or side consequences. In Commission v Netherlands (emissions trading), the Commission classified a Dutch measure as State aid and subsequently cleared it as compatible with the common market. The action for annulment brought by the Netherlands was still held admissible, as such a measure, unlike non-aid, is subject to constant monitoring and periodic checks by the Commission, meaning that the room for manoeuvre of the notifying Member State as regards implementation is restricted.16

3.17

Procedural rights and obligations. Privation of procedural rights by the final act of the institution or body is equally relevant. In Athinaiki Techniki, the applicant challenged a letter of the Commission indicating that it intended to take no further action on the applicant’s complaint regarding an allegedly illicit State aid, sent during the preliminary stage of the examination. The Court of Justice considered that the measure implied that the Commission would not start the formal investigation, thus it deprived the applicant of his procedural rights foreseen in the formal investigation and, as a consequence, had a binding legal effect.17 As regards decisions adopted at various stages of the procedure conducted by the institution or body, the EU Courts examine if they include decisions which do not merely establish the conditions for the subsequent conduct of that procedure but produce effects which go beyond the procedural framework

3.18

10 Order of 17 May 1989 in Case C-151/88 Italy v Commission (soya beans) [EU:C:1989:201] paras 22–23. 11 See Art 7(3) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33). 12 Art 7(4) of the Framework Directive. 13 Order of 12 December 2007 in Case T-109/06 Vodafone España and Vodafone Group v Commission [EU:T:2007:384] paras 92–97 and 105–106. For an example of a binding Commission act adopted in reply to a notification by a national authority of a measure envisaged in the broadcasting sector, see Case T-33/01 Infront WM v Commission [EU:T:2005:461]. 14 Joined Cases C-1/57 and C-14/57 Société des usines à tubes de la Sarre v High Authority [EU:C:1957:13] para 14; Joined Cases C-8/66 to C-11/66 Cimenteries C.B.R. Cementsbedrijven and Others v Commission [EU:C:1967:7] para 90. 15 Case C-60/81 IBM v Commission [EU:C:1981:264] para 19; Case C-131/03 P Reynolds Tobacco and Others v Commission [EU:C:2006:541] para 58. 16 Case C-279/08 P Commission v Netherlands (emissions trading) [EU:C:2011:551] paras 41–42. 17 Case C-521/06 P Athinaïki Techniki v Commission [EU:C:2008:422].

114 Action for Annulment and substantively alter the rights and obligations of the parties concerned. If this is the case, the procedural decision is separately challengeable.18 For instance, the General Court held in Österreichische Postsparkasse that the decision of the hearing officer to transmit to an Austrian political party the non-confidential versions of the statements of objections relating to the Austrian Banks cartel was separately challengeable.19 In other cases, where the institution’s or body’s conduct or measures during the proceedings before it prejudice the procedural rights of the party, without going beyond the procedural framework, they may constitute procedural irregularities whose presence is a ground for annulment if put forward in an action against the final decision closing the procedure (cf Section 3.1.7. Grounds for Review). 3.19

Act laying down specific or new obligations. In order to have a binding legal effect, the act must lay down specific or new obligations and not merely provide a more accurate articulation of pre-existing ones (cf para 3.44 on confirmatory acts). In Germany v Commission (public procurement), the applicant argued that the Commission established new obligations as regards Member States when prescribing, in an interpretative communication on public procurement rules, that all future public contracts be advertised before being awarded. The General Court, however, held that such an obligation did not go beyond what was required by the fundamental principles of the TFEU as interpreted by the case law, so that, in the absence of any new obligation imposed on Member States, the communication did not have a binding legal effect.20 In contrast, in France v Commission (communication on public undertakings), the Court of Justice held that a Commission communication established new obligations when it required Member States to supply information systematically on financial relations in the manufacturing sector, whereas the directive it was intended to explain only prescribed that the Member States keep that information at the Commission’s disposal and submit it on request. Therefore, the contested communication was held to be a reviewable act.21 In Commune de Champagne, the General Court ruled that since earlier EU law provisions had already reserved the name ‘champagne’ for alcoholic beverages from the French region of Champagne and therefore had had the effect of preventing wine producers from the Swiss Champagne region to market their products in the EU under the designation ‘champagne’, the Council and Commission decision to conclude an international agreement with Switzerland containing similar restrictions did not affect the situation of the applicants.22

3.20

Legal effect based on public power – contractual basis irrelevant. Another criterion of a binding act is that its legal effect must be exerted through public power. This means that only acts adopted in the institution’s or body’s administrative capacity may be challenged, whereas contractual acts are not reviewable in an action for annulment.23 Therefore, for instance, an institution’s letter calling upon the other party to the contract to reimburse a part of the EU funding because of the improper execution of an EU-financed project was not considered to be a reviewable act under Article 263 TFEU.24 In Mauerhofer, the Commission adopted ‘administrative orders’ r egulating

18 Joined Cases T-377/00, T-379/00, T-380/00, T-260/01 and T-272/01 Philip Morris and Others v Commission [EU:T:2003:6] para 96. 19 Joined Cases T-213/01 and T-214/01 Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v Commission [EU:T:2006:151]. 20 Case T-258/06 Germany v Commission (communication on public procurement) [EU:T:2010:214] paras 31, 81 and 162. 21 Case C-325/91 France v Commission (communication on public undertakings) [EU:C:1993:245] paras 13–22. 22 Order of 3 July 2007 in Case T-212/02 Commune de Champagne and Others v Council and Commission [EU:T:2007:194] para 204. 23 Order of 6 January 2015 in Case T-36/14 St’art and Others v Commission [EU:T:2015:13] para 29. 24 Order of 10 May 2004 in Joined Cases T-314/03 and T-378/03 Musée Grévin v Commission [EU:T:2004:139] paras 81–85; Joined Cases T-396/05 and T-397/05 ArchiMEDES v Commission [EU:T:2009:184] para 56.

Reviewable Acts 115 the execution of a framework contract, which allegedly adversely affected the applicant, a third party with whom the Commission had no contractual relations. The General Court adopted the same approach and held that the ‘administrative orders’ were acts producing and exhausting all their effects in the contractual relationship between the institution and its contractual partner, thus rejected Mauerhofer’s application as inadmissible.25 Where the institution or body acts in its capacity of a party to a contract and not in the exercise of its public powers, the judicial avenue open for the other party to the contract is to bring an action under Article 272 TFEU26 before the General Court if the contract contains an arbitration clause. If – mistakenly – an action for annulment was brought, provided that certain conditions are fulfilled, the General Court may requalify the action for annulment as an action brought under Article 272 TFEU27 (cf para 3.65). In the absence of an arbitration clause, cases regarding contractual terms might be brought before the competent national court (cf para 3.403). Exerting legal effects through national measures. Acts of institutions or bodies exerting their legal effects through binding acts of Member States are also reviewable if other conditions such as the direct and individual concern of the applicant are fulfilled. In Enviro Tech, where the classification of a substance as dangerous in an EU directive entailed national sanctions against its producers, the General Court held that the directive – even if it had lapsed in the meantime – still produced binding legal effects through those national measures, meaning that it was a reviewable act. The application was nonetheless rejected as inadmissible as the applicant was not individually concerned.28 On the other hand, if the institution’s or body’s act is in itself non-binding and cannot automatically lead to the opening of administrative or legal proceedings at national level, no action for annulment may lie against it (cf para 3.62).29

3.21

Compliance by a Member State with the institution’s or body’s opinion does not change its non-binding nature. Where the institution or body has no power to adopt a binding act under the applicable EU legislation, its view expressed to a Member State is merely an opinion bereft of legal effects. The non-binding nature of a position taken by the institution or body cannot be challenged on the ground that the national authority to which the act was addressed complied with it.30 However, as an alternative judicial remedy, the applicant may challenge the national measure before a national court.

3.22

Whose legal position needs to be affected by the act? In the case of privileged applicants, the answer is quite simple: anyone’s.31 This is because privileged applicants do not need to demonstrate any interest to the annulment, meaning that a Member State or an institution is entitled

3.23

25 Order of 29 June 2010 in Case T-515/08 Mauerhofer v Commission [EU:T:2010:260] para 61, confirmed by Order of 31 March 2011 in Case C-433/10 P Mauerhofer v Commission [EU:C:2011:204] para 63. 26 Under Art 272 TFEU, ‘The Court of Justice of the European Union shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the Union, whether that contract be governed by public or private law’. 27 Order of 6 January 2015 in Case T-36/14 St’art and Others v Commission [EU:T:2015:13] paras 32–50. 28 Case T-291/04 Enviro Tech Europe and Enviro Tech International v Commission [EU:T:2011:760] paras 84–89. Due to the lack of individual concern, the application for annulment was nonetheless rejected as inadmissible. 29 Order of 13 July 2004 in Case T-29/03 Comunidad Autónoma de Andalucía v Commission [EU:T:2004:235] paras 31–39. The General Court qualified OLAF reports as opinions or recommendations. See also Case T-193/04 Tillack v Commission [EU:T:2006:292] paras 69–70. 30 Case C-133/79 Sucrimex v Commission [EU:C:1980:104] paras 16 and 22; Case T-113/89 Nefarma v Commission [EU:T:1990:82] paras 78–79; Case T-160/98 Van Parys and Pacific Fruit v Commission [EU:T:2002:18] paras 64–65; Order of 3 December 2008 in Case T-210/07 RSA Security Ireland v Commission [EU:T:2008:548] para 56. 31 Joined Cases T-415/05, T-416/05 and T-423/05 Greece and Others (State aid in aviation sector) [EU:T:2010:386] paras 56–59.

116 Action for Annulment to bring an action even if it only affects other Members States, institutions or private parties.32 In contrast, in the case of natural and legal persons, the test depends on which situation listed in Article 263(4) TFEU is present. First, if the act is addressed to the applicant, the action is only admissible if the act affects the interests of the applicant by bringing about a distinct change in his legal position,33 so that he has interest in bringing proceedings (cf para 3.109 et seq). Secondly, as the Court of Justice ruled in Deutsche Post, where an action for annulment is brought by a non-privileged applicant against a measure that has not been addressed to it, the requirement that ‘the binding legal effects of the measure must be capable of affecting the interests of the applicant by bringing about a distinct change in his legal position’ overlaps with the conditions laid down in Article 263(4) TFEU,34 namely with the test related to the assessment of direct concern (cf para 3.140 et seq). 3.24

Legal effects vis-à-vis third parties. Article 263 TFEU provides that only those acts of the Parliament, of the European Council and of bodies, offices or agencies of the Union which are intended to produce legal effects vis-à-vis third parties are reviewable. This rule appeared first in the Treaties in the context of the Parliament, thus most of the related case law concerns internal acts of that institution.35 Even though the FEU Treaty does not foresee similar restrictions as regards Commission or Council acts, the Courts did not hesitate to consider that internal instructions or guidelines of these institutions, which do not affect the legal position of third parties, are not reviewable (cf para 3.13 and 3.57). The condition of producing legal effects vis-à-vis third parties therefore seems to be applicable, in practice, to acts of every institution and body. As a rule, the Courts assess whether the legal effect towards third parties was already present at the time of filing the application, since a measure which only internally obliges an institution or body to adopt a certain act is not challengeable. Such was the case in SNF, where the applicant brought an action against a decision of the European Chemicals Agency (ECHA) which qualified acrylamide, produced by the applicant, as a substance of very high concern. The applicant, alerted by an ECHA press release, filed its application at a time when the Member State Committee36 had already given its unanimous agreement on that qualification, obliging the ECHA to include acrylamide in the updated list of substances of very high concern. The ECHA decision was duly adopted; however, at the time of filing of the application, it had not yet entered into force. The General Court held that the unanimous agreement of the Member State Committee only had legal effects towards the ECHA but not to third parties, whereas the ECHA decision was not yet in force and therefore had no legal effect, hence the application was dismissed as inadmissible. Subsequently, in Rütgers, the applicants sought the annulment of the ECHA decision to include anthracene oil in the list of substances of very high concern. The General Court made it clear that by referring not only to the agreement of the Member State Committee, but also to the version of that list as published on the ECHA website, and by even mentioning the code of the decision

32 Case C-45/86 Commission v Council [EU:C:1987:163] para 3; Case C-370/07 Commission v Council [EU:C:2009:590] para 16; Joined Cases C-463/10 P and C-475/10 P Deutsche Post and Germany v Commission [EU:C:2011:656] para 36. 33 Case C-60/81 IBM v Commission [EU:C:1981:264] para 9; Case C-521/06 P Athinaïki Techniki [EU:C:2008:422] para 29; Case C-322/09 P NDSHT v Commission [EU:C:2010:701] para 45. 34 Joined Cases C-463/10 P and C-475/10 P Deutsche Post and Germany v Commission [EU:C:2011:656] para 38. 35 Order of 4 June 1986 in Case C-78/85 Group of the European Right v Parliament [EU:C:1986:227]; Joined Cases C-358/85 and C-51/86 France v Parliament [EU:C:1988:431]. See also A Türk, Judicial review in EU law (Edward Elgar Publishing, Cheltenham, 2010) 24–25. 36 See Arts 57 and 59 of Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency (OJ 2006 L 396, p. 1).

Reviewable Acts 117 of the ECHA’s Executive Director on that inclusion, the applicants unequivocally identified the subject matter of the dispute and the binding decision of the ECHA. Therefore, the action was admissible.37 (iv) Substance Rather than Form is Examined Form of the act is irrelevant; substance of the act is determined on the basis of the act’s content, factual context and the applicable legislative framework. The principle that an action for annulment may lie not only against formal acts listed in the Treaty (currently in Article 288 TFEU under the title ‘Legal acts of the Union’) but against all measures adopted by institutions or bodies producing legal effects, whatever their nature or form, dates back to the ERTA judgment.38 The Courts have since held on many occasions that any measures adopted by the institutions or bodies, whatever their form, which are intended to have binding legal effects are regarded as ‘challengeable acts’ for the purposes of Article 263 TFEU.39 In order to determine whether the contested act produces binding legal effects, it is necessary to examine the substance of that act and to assess those effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the (factual and legislative) context in which it was adopted and the powers of the institution or body which adopted the act,40 whereas the form in which an act or decision is adopted is in principle irrelevant.41 It should be noted that in the case law there is virtually no analysis regarding the intention of the act’s authors – possibly because reliance on this criterion by the Courts would allow the institutions or bodies to argue systematically in any non-clear-cut case, in order to evade judicial review, that its personnel had no intention of adopting a binding act. Thus, in essence, the Courts determine the substance of a measure and its capacity to produce binding legal effects on the basis of (i) its content, (ii) the factual context of its adoption and (iii) the applicable legislative framework.

3.25

Non-respect of formal or procedural requirements is immaterial. The Courts also held that it is in principle irrelevant for the classification of the contested act whether or not it satisfies certain formal requirements, namely, that it is duly named by its author; that it is sufficiently reasoned; and that it mentions the provisions providing the legal basis for it.42 Nor is it relevant for the qualification of the act if it was adopted in breach of procedural requirements, for instance, if notification or publishing43 required by EU legislation was omitted, as such an error is not capable of altering the substance of the act. In Athinaiki Techniki and subsequently in EWRIA, the Courts linked this rule with the principle that procedural rules should be interpreted

3.26

37 Case T-96/10 Rütgers Germany and Others v ECHA [EU:T:2013:109] para 33. 38 Case C-22/70 Commission v Council (ERTA) [EU:C:1971:32] para 42. 39 Case C-60/81 IBM v Commission [EU:C:1981:264] paras 9–10; Case C-147/96 Netherlands v Commission (Netherlands Antilles) [EU:C:2000:335] paras 26–27; Case C-521/06 P Athinaïki Techniki v Commission [EU:C:2008:422] para 42; Case C-599/15 P Romania v Commission (EU’s own resources) [EU:C:2017:801] para 47; Case C-16/16 P Belgium v Commission (online gambling services) [EU:C:2018:79] para 31. 40 Joined Cases C-593/15 P and C-594/15 P Slovakia v Commission (EU’s own resources) [EU:C:2017:800] para 47; Case C-16/16 P Belgium v Commission (online gambling services) [EU:C:2018:79] para 32. See also Case C-362/08 P Internationaler Hilfsfonds v Commission [EU:C:2010:40] para 58; Case T-369/08 EWRIA v Commission [EU:T:2010:549] para 34. 41 See, eg Case C-208/03 P Le Pen v Parliament [EU:C:2005:429] para 46. 42 Case C-521/06 P Athinaïki Techniki v Commission [EU:C:2008:422] para 44. As to the requirement of being sufficiently reasoned, see Case C-39/93 P SFEI and Others v Commission [EU:C:1994:253] para 31. 43 Case C-57/95 France v Commission (communication on pension funds) [EU:C:1997:164] para 2; Case C-521/06 P Athinaïki Techniki v Commission [EU:C:2008:422] para 44.

118 Action for Annulment in such a way as to ensure effective judicial protection of individuals against measures adopted by Union institutions or bodies.44 They considered that if the non-respect of essential formal and procedural requirements could change the qualification of an act, thereby entailing the inadmissibility of the action for annulment, the institutions or bodies could avoid judicial review by simply failing to adhere to those requirements.45 3.27

Oral statements. The above principles (paras 3.25–3.26) imply that even acts taking rather unusual forms can be reviewable if they have a binding content. In Kohler, the Court of Justice held that the oral decision not to appoint the applicant to a post, communicated at a professional interview, was a reviewable act.46 In Air France, an oral statement by the spokesman for the Commissioner responsible for competition matters, indicating that a proposed merger had no Community dimension, was qualified as a reviewable act. It was ‘considered to have been adopted by the Commissioner himself and thus publicly committed the Commission as a whole, particularly since it has been shown that the Commission intended to abide by its terms’.47

3.28

Physical acts. Even physical acts carried out by institutions or bodies can constitute separate reviewable acts. In Akzo Nobel and Akcros, the Commission seized, during a cartel investigation, documents in respect of which legal professional privilege48 was claimed and subsequently placed it on the investigation file without putting it in a sealed envelope and without having taken a formal rejection decision as regards the request for privilege. The Courts held that that physical act necessarily entailed a tacit decision by the Commission to reject the protection by legal privilege claimed by the applicant.49

3.29

Letters. Letters are the typical form of communication between the institution or body and other parties, therefore the bulk of the cases where no formal decision was adopted require that the Courts examine the content of letters.50 For that reason, most of the case law examined in the present section does in fact concern ‘letters’. A few important remarks are nonetheless worth being mentioned separately. First, under settled case law, the mere fact that a letter is sent by an institution or body to its addressee in response to a request made by the latter is not enough for it to be treated as a decision against which an action may lie. To be actionable, binding content must be shown.51 In Pitsiorlas, the General Court drew a distinction between a letter merely informing the party of the applicable legal framework, which was considered not to include any reviewable act, and a letter containing the ECB’s decision to refuse access to its archives, which the General Court qualified as an actionable decision.52 Secondly, institutions or bodies often put forward 44 Case C-50/00 P Unión de Pequeños Agricultores v Council [EU:C:2002:462] paras 38–39; Case C-229/05 P PKK and KNK v Council [EU:C:2007:32] para 109. 45 Case C-521/06 P Athinaïki Techniki v Commission [EU:C:2008:422] para 45; Case T-369/08 EWRIA v Commission [EU:T:2010:549] para 33. 46 Joined Cases C-316/82 and C-40/83 Kohler v Court of Auditors [EU:C:1984:49] paras 9 et seq. 47 Case T-3/93 Air France v Commission [EU:T:1994:36] paras 8 and 49. 48 Protection of confidentiality of communications between lawyers and their clients. 49 Joined Cases T-125/03 and T-253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [EU:T:2007:287] para 49. Confirmed on appeal in Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission [EU:C:2010:512]. 50 See, eg Order of 15 February 2016 in Case T-82/15 InAccess Networks Integrated Systems v Commission [EU:T:2016:90]. 51 Case T-277/94 AITEC v Commission [EU:T:1996:66] para 50; Order of 5 November 2003 in Case T-130/02 Kronoply v Commission [EU:T:2003:293] para 42; Order of 14 December 2005 in Case T-369/03 Arizona Chemical and Others v Commission [EU:T:2005:458] para 56; Order of 9 December 2009 in Case T-107/06 Inet Hellas v Commission [EU:T:2009:506] para 55. 52 Joined Cases T-3/00 and T-337/04 Pitsiorlas v Council and ECB [EU:T:2007:357] paras 60 and 65. See also Order of 9 December 2009 in Case T-107/06 Inet Hellas v Commission [EU:T:2009:506] para 56: a letter containing an interpretation of the applicable legal framework is not actionable.

Reviewable Acts 119 that a letter cannot be considered to be the contested decision, since the decision was taken earlier by them. The Courts, however, tend to regard the first letter informing the applicant of an earlier decision’s content as a document which embodies that decision and to consider that the action brought against the letter is in fact directed against the decision itself 53 (cf para 4.141). Thirdly, letters challenged before the General Court are often part of a longer correspondence between the institution or body and a private party, and it is sometimes genuinely difficult to identify, in the course of the correspondence, the letter fixing the definitive position of the institution or body, in particular because the party cannot predict the content of the next letter. If, by sending another letter, the party attempts to convince the institution or body to modify its position, and the latter merely confirms its previous findings in a letter sent more than two months and 10 days after its previous letter, the party has actually lost his right to review: the last letter from the institution or body will be considered a confirmatory act, whereas the previous letter is no longer actionable because the time limit for filing an action for annulment has lapsed (cf para 3.38 et seq on preparatory acts and cf 3.44 et seq on confirmatory acts). Fourthly, it is important to recall that the nature of a letter sent by an institution or body in reply to a request is determined in the light of the nature of the request (cf para 3.34). Emails. As the General Court held in RSA Security, the case law applicable for determining if a letter is a reviewable act also applies to emails.54

3.30

Communications. Commission communications intended to interpret secondary EU legislation or provide guidance for its application are also challengeable if they establish more specific obligations than what resulted from the legislation concerned and other existing Union law provisions (cf para 3.19).55 The fact that these communications are published in the C series of the Official Journal, which normally indicates non-binding content, is irrelevant from the point of view of the qualification of the act.56

3.31

Form may matter if hinting towards binding nature. The principle of the irrelevance of the form only applies systematically in the case of informal acts, such as letters, emails or oral statements, so that, consistently with the principle of ensuring effective judicial protection, the institutions or bodies are prevented from evading judicial review by choosing informal communication of legally binding content. On the other hand, the binding form prescribed by EU legislation for a certain type of act may be taken into account in order to determine the nature of the act. In Deutsche Post, the Court of Justice examined if a formal injunction57 addressed to Germany to submit information on the supposed State aid granted to Deutsche Post was a reviewable act. It considered that since the EU legislation provided that the said injunction should take the form of a decision, which, in accordance with Article 288 TFEU, is ‘binding in its entirety’, the legislator intended to confer a binding character on such a measure. As a consequence, the Court considered that the information injunction was a separate reviewable act, as it produced legal effects independently from the outcome of the main proceedings (decision on the lawfulness of the aid)58 (cf para 3.41).

3.32

53 Joined Cases T-3/00 and T-337/04 Pitsiorlas v Council and ECB [EU:T:2007:357] paras 62–65. 54 Order of 3 December 2008 in Case T-210/07 RSA Security Ireland v Commission [EU:T:2008:548] para 51 et seq. 55 Case T-258/06 Germany v Commission (communication on public procurement) [EU:T:2010:214] paras 31, 81 and 162; Case C-325/91 France v Commission (communication on public undertakings) [EU:C:1993:245] paras 13–22. 56 Case C-325/91 France v Commission (communication on public undertakings) [EU:C:1993:245] para 10 et seq. 57 Under Art 10(3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 88 of the EC Treaty (OJ 1999 L 83, p. 1). 58 Joined Cases C-463/10 P and C-475/10 P Deutsche Post and Germany v Commission [EU:C:2011:656] para 44 et seq.

120 Action for Annulment 3.33

Context of the adoption. The legislative and factual context in which the contested act was adopted is sometimes also taken into account in order to determine the nature of that act. In Sunzest, the Court of Justice examined the legislative context and concluded that only national bodies were competent to apply a directive, meaning that the Commission’s letter concerning the application of the directive in a concrete case could merely express its opinion and was incapable of producing legal effects.59 In Vodafone España, the General Court held that if the relevant legislative provision only foresees that a national authority has to take ‘utmost account’ of the Commission’s position on a notified national measure, that wording implies the non-binding nature of the Commission’s position, all the more since another provision of the same piece of legislation confers a power of veto upon the Commission as regards the notified measure if the latter decides to initiate a particular procedure60 (cf para 3.16). In Internationaler Hilfsfonds, the Court of Justice highlighted the importance of the factual context preceding the adoption of the contested act. Regulation 1049/200161 foresees a two-step procedure for institutions to handle requests for access to institution documents, culminating in an initial reply and later a confirmatory reply from the institution. According to settled case law, the initial decision is a non-actionable preparatory measure and only the confirmatory reply is challengeable. The applicant’s request had been rejected in the initial and subsequently the confirmatory decision, further to which it lodged a complaint with the Ombudsman, who later established an instance of maladministration. The applicant subsequently filed a fresh application for access to documents, in reply to which, in a second initial decision, the Commission merely confirmed the refusal. The Court of Justice held that, with account being taken of the previous stance of the Commission, the second initial decision was, in spite of its form and the relevant legislative provisions, a measure laying down the definitive position of the Commission.62 Case law is less clear as to whether the institution’s or body’s behaviour following the adoption of a measure may be relevant. In any event, in Air France, the General Court found that the ‘Commission intended to abide by the terms’ of an oral statement (which was relevant for the finding that the oral statement produced binding legal effects) by referring, to a large extent, to facts that occurred after that statement.63

3.34

Substance of the institution’s or body’s reply to be assessed in light of the request. If the institution or body indicates – typically by sending a letter – that it does not comply with a party’s request, the nature of the reply must be appraised in the light of the nature of the request.64 In particular, the refusal by an EU institution or body to withdraw or amend an act is not reviewable if the original act itself was not open to review.65 Nor is the action for annulment brought against the refusal admissible if the applicant had requested a measure which the institution or body had no power to adopt.66 There is, however, no general rule for situations where the 59 C-50/90 Sunzest v Commission [EU:C:1991:253] para 13. 60 Order of 12 December 2007 in Case T-109/06 Vodafone España and Vodafone Group v Commission [EU:T:2007:384] paras 92–97 and 105–106. For an example of a binding Commission act adopted in reply to a notification by a national authority of a measure envisaged in the broadcasting sector, see Case T-33/01 Infront WM v Commission [EU:T:2005:461]. 61 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). 62 Case C-362/08 P Internationaler Hiflsfonds v Commission [EU:C:2010:40] paras 57–60. 63 Case T-3/93 Air France v Commission [EU:T:1994:36] paras 9 et seq and 49. 64 Case C-42/71 Nordgetreide v Commission [EU:C:1972:16] para 5; Joined Cases C-15/91 and C-108/91 Buckl and Others v Commission [EU:C:1992:454] para 22; Order of 13 July 2004 in Case T-29/03 Comunidad Autónoma de Andalucía v Commission [EU:T:2004:235] para 30. 65 Case T-330/94 Salt Union v Commission [EU:T:1996:154] para 32; Order of 18 April 2002 in Case T-238/00 IPSO and USE v BCE [EU:T:2002:102] para 45; Order of 13 July 2004 in Case T-29/03 Comunidad Autónoma de Andalucía v Commission [EU:T:2004:235] para 30. 66 Order of 27 January 1993 in Case C-25/92 Miethke v Parliament [EU:C:1993:32].

Reviewable Acts 121 applicant requests a measure in respect of which the institution or body enjoys wide discretionary power. It is settled case law that the decision of the Commission not to initiate infringement proceedings (Article 258 TFEU) against a Member State, turning down the request of a private party, is not a challengeable act (cf para 3.59). The same goes for refusals to initiate measures against a Member State under Article 106(3) TFEU.67 Operative part, recitals and obiter dicta. In the case of formal decisions consisting of an operative part (ie enacting terms) and of its grounds set out in recitals, the substance of the act must be determined primarily on the basis of the operative part. If, however, the act needs to be interpreted, account must be taken of the reasons set out in the recitals, to which the operative part is inextricably linked.68 The Courts also held that only the operative part of a decision is capable of producing legal effects. The assessments made in the grounds of an act are not in themselves actionable and can be subject to judicial review only to the extent that they constitute the essential basis for the operative part of that act69 or if, at the very least, those grounds are likely to alter the substance of what was decided in the operative part.70 Energie Baden-Württemberg provides a good illustration of the application of these principles. Germany notified to the Commission its national allocation plan (NAP) for the allocation of greenhouse gas emission allowances,71 which contained a so-called transfer rule. According to the applicant, that transfer rule was detrimental to the applicant and breached the Treaty provisions on State aid. In the recitals of its decision on the NAP, the Commission held that the transfer rule did not infringe provisions on State aid. Nonetheless, it rejected the NAP on other grounds. The applicant challenged that decision by essentially seeking the annulment of what it considered to be the approval of the transfer rule by the Commission. The General Court, however, ruled that the comments by the Commission on the transfer rule set out in the recitals of the contested decision had no connection with the operative part and they could not change its substantive content either. The said comments were therefore qualified as an obiter dictum, unable to produce binding legal effects and to be challenged under Article 263 TFEU.72

3.35

Publication. The main rule is that publication in the Official Journal alone cannot change the legal nature of an act. As it was held in Germany v Commission (communication on public procurement), if the act lays down specific or new obligations, the action must be held to be admissible, without any need to determine if the act had been published, whereas publication alone is not enough to support the conclusion that the act is actionable73 (cf para 3.19). On the other hand, if the publication of a measure is an indication of the accomplishment of a procedure, or specific provisions attach legal effects to the publication (in the Official Journal, on a website, etc), it does need to be taken into account when the Courts assess whether the act has a legally binding nature.74 Where the act acquires its binding legal effects before the publication, it may become

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67 Case C-141/02 P Commission v max.mobil [EU:C:2005:98]; see also A H Türk, Judicial Review in EU Law (Edward Elgar Publishing, Cheltenham, 2009) 14–15. 68 Joined Cases T-346/02 and T-347/02 Cableuropa and Others v Commission [EU:T:2003:256] para 211; Case T-387/04 EnBW Energie Baden-Württemberg v Commission [EU:T:2007:117] para 127. 69 Case C-164/02 Netherlands v Commission (aid for the processing of dredging silt) [EU:C:2004:54] para 21. 70 Case T-251/00 Lagardère and Canal+ v Commission [EU:T:2002:278] para 68; Case T-387/04 EnBW Energie Baden-Württemberg v Commission [EU:T:2007:117] para 127. 71 In accordance with Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32). 72 Case T-387/04 EnBW Energie Baden-Württemberg v Commission [EU:T:2007:117] paras 128–129. See also Joined Cases T-81/07, T-82/07 and T-83/07 KG Holding v Commission [EU:T:2009:237] para 46. 73 Case T-258/06 Germany v Commission (communication on public procurement) [EU:T:2010:214] para 31. 74 Case T-33/01 Infront WM v Commission [EU:T:2005:461] paras 87, 89, 92, 95, 103 and 111.

122 Action for Annulment open to challenge, without any need for the applicant to wait until the publication in order to bring an action for annulment.75 3.37

Is silence an implied decision? The absence of any reaction on behalf of the institution or body in reply to a notification, request or other submission by a party may be considered as a legally binding act only if the applicable legislation attaches such an effect to the institution’s or body’s silence. For instance, the relevant legislative framework provides expressly that non-exercise by the Commission of its powers within a certain period counted from the notification of a concentration76 or a State aid measure77 amounts to an implied authorisation decision adopted by the Commission. Another example is Regulation 1049/2001 on public access to documents, which provides that the lack of response by the EU institution to the confirmatory request for access within the applicable time limit is deemed to be an implicit refusal.78 However, in the absence of any provision of Union law prescribing a period on the expiry of which an implied decision is deemed to arise and establishing the content of that decision, silence cannot be regarded as an act open to challenge.79 In Greencore, although the General Court conceded in abstracto that in certain particular circumstances that principle may not be applicable, so that silence or inaction may exceptionally constitute an implied refusal even if there is no explicit Union law provision foreseeing such qualification, it nonetheless rejected the claim that such particular circumstances were present.80 It is also noteworthy that this exception was not mentioned in the more recent Vodafone España order.81 (v) Preparatory, Preliminary, Intermediary Acts

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Preparatory, preliminary, intermediary acts in principle not actionable. In the case of acts adopted by a procedure involving several stages of an internal procedure, in principle (cf para 3.41 for exceptions) an act is open to review only if it is a measure which definitively lays down the position of the institution or body on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision.82 This is because an intermediate stage or a preparatory act adopted during the proceedings before the institution or body do not have binding legal effects.83 Besides, as the Court of Justice already explained in IBM, such acts express a provisional opinion of the institution or body,84 therefore an action for annulment against such 75 Case C-626/11 P PPG and SNF v ECHA [EU:C:2013:595] paras 30–42. 76 Art 10(6) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1). 77 Art 4(6) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9). 78 Art 8(3) of Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). 79 Case C-27/04 Commission v Council [EU:C:2004:436] paras 32 and 34; Order of 12 December 2007 in Case T-109/06 Vodafone España and Vodafone Group v Commission [EU:T:2007:384] para 107. 80 Case C-123/03 P Commission v Greencore [EU:C:2004:783] para 45. 81 Order of 12 December 2007 in Case T-109/06 Vodafone España and Vodafone Group v Commission [EU:T:2007:384]. 82 Case C-60/81 IBM v Commission [EU:C:1981:264] para 10; Case T-95/99 Satellimages TV5 v Commission [EU:T:2002:62] para 32; Case T-260/04 CESTAS v Commission [EU:T:2008:115] para 69; Order of 27 November 2017 in Case T-902/16 HeidelbergCement v Commission [EU:T:2017:846] para 15. 83 Order of 14 December 2005 in Case T-369/03 Arizona Chemical and Others v Commission [EU:T:2005:458] paras 55 et seq; Order of 7 September 2010 in Case T-532/08 Norilsk Nickel Harjavalta and Umicore v Commission [EU:T:2010:353] para 93. 84 See Case C-60/81 IBM v Commission [EU:C:1981:264] para 20; Joined Cases C-133/87 and C-150/87 Nashua Corporation and Others v Commission and Council [EU:C:1990:115] paras 8–10; Case C-282/95 P Guérin Automobiles v Commission [EU:C:1997:159] para 34; Case C-147/96 Netherlands v Commission (Netherlands Antilles) [EU:C:2000:335] para 35.

Reviewable Acts 123 measures might make it necessary for the EU judicature to decide on questions on which the institution or body has not yet had an opportunity to state its position. As a result, a judicial review at this stage would anticipate the arguments on the substance of the case, confusing different procedural stages both administrative and judicial.85 Remedy to the unlawfulness of a preparatory act. According to settled case law, any unlawful features vitiating a preparatory act can only be relied on in an action directed against the definitive act for which it represents a preparatory step. This means that the lawfulness of a preparatory act may, as a rule (cf para 3.41 for exceptions), only be challenged indirectly, in support of an action directed against the final act.86

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Criteria for the assessment of preparatory nature. When determining whether the contested act is preparatory or it fixes the definitive position of the institution or body, the Courts examine the content of the measure, the factual context of its adoption and the applicable procedural rules. In Pietro Chiesa, the General Court found it relevant that in the contested letter, the Commission merely informed the applicant of the state of progress of the examination of its complaint and indicated that it was not yet able to adopt a final position on it as it still awaited the response of national authorities to its request for information. The letter was therefore qualified as a nonactionable provisional measure.87 In contrast, in Athinaiki Techniki, the Court of Justice held that a letter in which the Commission informed the applicant that ‘in the absence of additional information to justify continuing the investigation [regarding alleged State aid], it had closed the file’ was a definitive act, even if the submission of further information by the applicant could have resulted in the continuation of the procedure. It highlighted that the letter could not be followed, in the context of the administrative procedure which has been initiated, and on the basis of the information already submitted, by any other actionable decision.88 As regards the weight of the different criteria, in Cestas, the General Court gave absolute priority to the legislative context of the measure’s adoption over its content. It held that although the debit note in question was deliberately drafted in such a way as to give the impression of a definitive and enforceable measure, it still had to be qualified a preparatory act, as the relevant procedural rules foresaw several options for the Commission after the issuance of the debit note, such as enforcement, waiver of payment or making a set-off.89

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Intermediate procedural decisions with independent legal effects are separately challengeable acts. If an intermediate measure adopted during a procedure split into several stages produces legal effects which are independent from the ones brought about by the final act – irrespective of whether that measure expresses a provisional opinion of the institution or body concerned – it may be challenged in a separate action for annulment. Independent legal effects are present if the measure does not merely establish the conditions for the subsequent conduct of that procedure, but produce effects which go beyond the procedural framework and substantively alter

3.41

85 Case C-60/81 IBM v Commission [EU:C:1981:264] para 20; Joined Cases C-463/10 P and C-475/10 P Deutsche Post and Germany v Commission [EU:C:2011:656] paras 50–51. 86 Case C-60/81 IBM v Commission [EU:C:1981:264] para 12; Case T-498/07 P Krcova v Court of Justice [EU:T:2009:178] paras 55–56; Order of 7 September 2010 in Case T-532/08 Norilsk Nickel Harjavalta and Umicore v Commission [EU:T:2010:353] para 94; Order of 27 November 2017 in Case T-902/16 HeidelbergCement v Commission [EU:T:2017:846] para 17. 87 Order of 20 March 2001 in Case T-59/00 Compagnia Portuale Pietro Chiesa v Commission [EU:T:2001:98] paras 42–48. 88 Case C-521/06 P Athinaïki Techniki [EU:C:2008:422] paras 54–58; see also Case T-369/08 EWRIA v Commission [EU:T:2010:549] para 38 et seq. 89 Case T-260/04 CESTAS v Commission [EU:T:2008:115] paras 71–76.

124 Action for Annulment the rights and obligations of the parties concerned;90 if the act is the culmination of a special procedure distinct from the main procedure laying down the Commission’s definitive position on the substance of the case;91 and/or if the action brought against the decision terminating the procedure does not provide sufficient judicial protection against the irreversible impact of that measure.92 The Courts may also take into account in this respect whether the judicial review of the intermediate measure can involve a risk of confusion of the various stages of the administrative and judicial procedures.93 Examples for separately actionable intermediate measures include Akzo Chemie, where the Commission adopted a decision under which the information submitted by the applicant in an antitrust procedure did not qualify for confidential treatment and could therefore be communicated to the complainant.94 Likewise, in Österreichische Postsparkasse, the General Court ruled that the decision of the hearing officer to transmit to an Austrian political party the non-confidential versions of the statements of objections relating to the Austrian Banks cartel was separately reviewable.95 In Deutsche Post, the Court of Justice overruled the analysis of the General Court and held that an injunction, addressed to a Member State, to provide information in a procedure for reviewing State aid was separately challengeable.96 3.42

Act expressing the final position of the institution or body but preparatory to a Member State act not reviewable. In complex procedures where the institutions or bodies provide an input to an act to be ultimately adopted by a Member State, even measures expressing their definitive position may be qualified as mere preparatory acts. If, under the relevant procedural rules, only Member States have the power to adopt a binding act, the position expressed by the institution or body is not amenable to review (cf para 3.22). Such was the case in Van Parys, where the Commission produced worksheets in order to assist Member States in determining the quantities of bananas that each importer was allowed to bring into the common market. The Court of Justice held that the Commission’s input was no more than an intermediary measure forming part of the preparatory work leading to determination by the national authorities of the said quantities, since, under the applicable legislation, only the Member States had the power to adopt binding legal acts, so the position expressed by the Commission was necessarily merely an opinion.97 In Vodafone España, the General Court also highlighted that, under the relevant procedural rules, the Commission had an advisory role, so that its letter of comments constituted a preparatory act in the context of a procedure which leads to the adoption of a national measure.98

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Position expressed by committees, councils, bodies assisting the institution or body in the decision-making. The same principle applies as regards the definitive positions taken by the

90 Joined Cases T-377/00, T-379/00, T-380/00, T-260/01 and T-272/01 Philip Morris and Others v Commission [EU:T:2003:6] paras 96–97. 91 Joined Cases T-213/01 and T-214/01 Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v Commission [EU:T:2006:151] para 71. 92 Case C-53/85 Akzo Chemie v Commission [EU:C:1986:256] para 20; Case C-170/89 BEUC v Commission [EU:C:1991:450] paras 9–11; Case C-39/93 P SFEI and Others v Commission [EU:C:1994:253] para 28; Case C-400/99 Italy v Commission [EU:C:2005:275] paras 57–68; Joined Cases C-463/10 P and C-475/10 P Deutsche Post and Germany v Commission [EU:C:2011:656] paras 54–56. 93 Joined Cases C-463/10 P and C-475/10 P Deutsche Post and Germany v Commission [EU:C:2011:656] para 52. 94 Case C-53/85 Akzo Chemie v Commission [EU:C:1986:256] paras 17–21. 95 Joined Cases T-213/01 and T-214/01 Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v Commission [EU:T:2006:151]. 96 Joined Cases C-463/10 P and C-475/10 P Deutsche Post and Germany v Commission [EU:C:2011:656] para 52. 97 Case T-160/98 Van Parys and Pacific Fruit v Commission [EU:T:2002:18] paras 64–65. 98 Order of 12 December 2007 in Case T-109/06 Vodafone España and Vodafone Group v Commission [EU:T:2007:384] para 97.

Reviewable Acts 125 various panels or other entities which assist the institutions or bodies during the procedures. If, under the relevant procedural rules, only the final act of the institution or body adopted at the end of the procedure has binding legal effects, documents expressing definitive positions of these entities are considered to be preparatory measures and not amenable to review, unless, for some particular reasons, they produce independent legal effects from the ones generated by the final act.99 (vi) Confirmatory Acts Confirmatory acts not actionable. A measure which is purely confirmatory of an earlier definitive measure is not open to legal challenge.100 A measure which contains no new factor as compared with a previous measure constitutes a purely confirmatory measure.101 Such an act does not produce any new legal effect. Besides, this rule is based on concerns regarding legal certainty, namely that the time limits for bringing an action should not be allowed to recommence once they have expired. As the General Court explained in Cobrecaf,

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where an applicant lets the time limit for bringing an action against a decision unequivocally laying down a measure with legal effects affecting his interests and binding on him expire, he cannot start time running again by asking the institution [or body] to reconsider its decision and bringing an action against the refusal confirming the decision previously taken.102

However, an action against a confirmatory act which is filed within the legal deadline for challenging the previous definitive measure does not harm legal certainty. In such cases, the applicant has the choice whether to challenge the original or the confirmatory act, or both.103 Criteria for the assessment of confirmatory nature. In general, the substance of a measure has to be determined on the basis of (i) its content, (ii) the factual context of its adoption and (iii) the applicable legislative framework (cf paras 3.25 and 3.33). Therefore, a second measure concerning the same subject matter may not be confirmatory if that measure itself contains new factors (cf para 3.46),104 if the addressee provided in its request for reconsideration substantial new facts, or if the institution or body re-examined his situation anyway.105 The legislative framework matters in particular in procedures consisting of subsequent stages which culminate in separate decisions (cf para 3.50).

3.45

Presence of a new factor – SolarWorld. The SolarWorld case provides an illustration for the situation where a subsequent EU measure has a similar subject matter to an earlier one, yet it

3.46

99 Case T-380/06 Vischim v Commission [EU:T:2009:392] paras 249–250. 100 Case C-26/76 Metro v Commission [EU:C:1977:167] para 4; Case C-23/80 Grasselli v Commission [EU:C:1980:284] para 18; Case C-480/93 P Zunis Holding v Commission [EU:C:1996:1] para 14; Case C-123/03 P Commission v Greencore [EU:C:2004:783] para 39. 101 Case C-417/05 P Commission v Fernández Gómez [EU:C:2006:582] para 46; Order of 10 March 2016 in Case C-142/15 P SolarWorld v Commission [EU:C:2016:163] paras 30–31. 102 Case T-514/93 Cobrecaf and Others v Commission [EU:T:1995:49] para 44. See also Joined Cases C-166/86 and C-220/86 Irish Cement v Commission [EU:C:1988:549] para 16; Case C-199/91 Foyer Culturel du Sart-Tilman v Commission [EU:C:1993:205] paras 23–24; Order of 24 October 2012 in Case T-442/11 Evropaïki Dynamiki v Commmission [EU:T:2012:566] para 66. 103 Case C-54/77 Herpels v Commission [EU:C:1978:45] para 14; Case T-188/95 Waterleiding Maatschappij ‘Noord-West Brabant’ v Commission [EU:T:1998:217] para 108; Case C-135/06 P Weißenfels v Parliament [EU:C:2007:812] para 54. 104 Case T-4/90 Lestelle v Commission [EU:T:1990:73] paras 24–27; Order of 4 May 1998 in Case T-84/97 BEUC v Commission [EU:T:1998:81] para 52; Order of 10 March 2016 in Case C-142/15 P SolarWorld v Commission [EU:C:2016:163] paras 30–31. 105 Case T-186/98 Inpesca v Commission [EU:T:2001:42] para 46.

126 Action for Annulment contains new factors, which implies that it is not a confirmatory act. SolarWorld brought an action for annulment against Commission Decision 2013/423/EU accepting an undertaking offered in connection with the anti-dumping proceedings concerning imports of Chinese photovoltaic cells and wafers. In the undertaking, certain Chinese producers agreed to respect a minimum price and a maximum quantity regarding their exports to the EU. Later, the Commission adopted Regulation 748/2013 to take account of the decision at issue. That Regulation 748/2013 inserted, inter alia, a new article in the provisional anti-dumping regulation, which provides that imports by companies covered by the said undertaking are to be exempted from the provisional antidumping duty. On appeal, SolarWorld put forward that Regulation 748/2013 was a confirmatory act having the same legal effects as Decision 2013/423/EU. The Court of Justice dismissed that argument. It held that the decision and Regulation 748/2013 were two measures of a fundamentally different nature. Decision 2013/423/EU concerns companies that offered an undertaking and is intended to accept such an offer. By contrast, Regulation 748/2013 is a measure of general application which is intended to amend the provisional regulation in order to exempt imports by companies covered by the undertaking. Regulation 748/2013 cannot therefore be regarded as containing no new factor as compared with the decision at issue.106 3.47

Extended reasoning is not a new factor – BEUC. The issue of identifying the original, challengeable act and the subsequent confirmatory acts often arises where a party makes repeated requests to an institution having essentially the same subject matter. In BEUC, the General Court held that, once the institution had communicated to the applicant its position taken on his request, the mere fact that in a more recent letter the institution set out in greater detail the grounds for its position is not a new factor which would render the more recent letter challengeable.107

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Substantial new fact in the repeated request. A substantial new fact relied on in the repeated request is a new factor even if the institution or body does not refer to it in the later measure, since the later measure has thus been adopted on the basis of a different set of facts.108 A fact is considered to be ‘new’ if neither the applicant nor the administration was aware or could be aware of it at the time of the previous measure’s adoption. A fortiori, a fact is ‘new’ if it emerged after the adoption of the previous decision.109 A fact is ‘substantial’ if it is capable of substantially altering the applicant’s situation as compared to the set of facts on which the previous decision was based.110 In Inpesca, in the context of EU-funded projects, the General Court ruled that neither the publication of a new proposal for regulation nor new judgments handed down in the relevant field111 could be considered substantial new facts. It also ruled that the appearance of new EU resources which in the applicant’s view could help finance its project was not a new fact substantially altering its position, as those resources could not be transferred to the section of EU funds from which it could have benefited.112

106 Order of 10 March 2016 in Case C-142/15 P SolarWorld v Commission [EU:C:2016:163] paras 7 and 30–31. 107 Order of 4 May 1998 in Case T-84/97 BEUC v Commission [EU:T:1998:81] paras 53–54. 108 Joined Cases C-42/59 and C-49/59 Snupat v High Authority [EU:C:1961:5]; Case T-58/89 Williams v Court of Auditors [EU:T:1991:9] para 24; Order of 13 April 2010 in Joined Cases T-529/08 and T-531/08 Territorio Histórico de Álava – Diputación Foral de Álava and Others v Commission [EU:T:2010:139] para 30. 109 Case T-186/98 Inpesca v Commission [EU:T:2001:42] para 50. 110 Case C-232/85 Becker v Commission [EU:C:1986:428] para 11; Case T-186/98 Inpesca v Commission [EU:T:2001:42] para 51; Order of 17 February 2011 in Case T-330/09 RapidEye v Commission [EU:T:2011:48] paras 29–30. 111 See also Case C-403/85 REV Ferrandi v Commission [EU:C:1991:119] para 13. 112 Case T-186/98 Inpesca v Commission [EU:T:2001:42] paras 58–70.

Reviewable Acts 127 Where the original measure was not notified to the applicant. In the case of measures not notified to the applicant and of which the Official Journal only contains a summary, the full text sent to the applicant upon his request is not considered to be a confirmatory measure.113

3.49

Appearance of separately challengeable preparatory or intermediate measures in the final decision. As an exception, some intermediate measures adopted during a procedure split into several stages produce legal effects independently from the final act, and therefore may be challenged in a separate action for annulment (cf para 3.41). However, even if the effect of these intermediate measures reappears in the final act, the latter does not become a confirmatory act in this respect. As the General Court held in Regione Siciliana, the right to challenge such intermediate measures cannot have the consequence of diminishing the procedural rights of interested parties by preventing them from challenging the final decision and from relying on defects at previous stages of the procedure.114

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Change in legislative context. Where a provision in a piece of legislation is amended, a fresh right of action arises not only against that provision alone, but also against all the provisions which, even if not amended, form a whole with it.115 In Poland v Commission (transitional measures for agricultural products), in the context of the common organisation of agricultural markets, the General Court ruled that, since a new regulation made additional products subject to the same measures as an earlier regulation, the measures were challengeable in respect of the additional products even if the measures had already been present in the previous regulation and the new regulation merely confirmed them.116

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Explicit measure adopted after silence is not a confirmatory act. According to settled case law, the mere silence on the part of an institution or body cannot be placed on the same footing as an implied refusal, except where that result is expressly provided for by a provision of Union law (cf para 3.37). Therefore, as was held in Greencore, the institution may not validly claim that by its explicit measure it merely confirmed its previous implicit reply resulting from its silence.117

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3.1.2.2. Illustrations – Reviewable and Non-reviewable Acts General. In the present subsection, some illustrations are provided for reviewable and non-reviewable acts.118

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(i) Informative or Interpretative Acts Institution or body has no power to adopt binding measure. Acts are necessarily regarded as purely informative or interpretative if the institution or body from which the act emanates has no power to take a binding measure in the relevant field.119 In RSA Security Ireland, the

113 Case T-188/95 Waterleiding Maatschappij ‘Noord-West Brabant’ v Commission [EU:T:1998:217] para 111. 114 Case T-190/00 Regione Siciliana v Commission [EU:T:2003:316] paras 45–47 and 49. 115 Case C-299/05 Commission v Parliament and Council (social security schemes) [EU:C:2007:608] paras 29–30. 116 Case T-257/04 Poland v Commission (transitional measures for agricultural products) [EU:T:2009:182] paras 70–73. 117 Case C-123/03 P Commission v Greencore [EU:C:2004:783] para 47. 118 The EU Courts have developed extensive case law in respect of actionable measures in the field of State aid, mergers and antitrust. Further guidance in this respect is provided on the companion website of this book, courtprocedure.eu. 119 Case C-151/88 Italy v Commission [EU:C:1989:201] para 22; Order of 25 January 2007 in Case T-55/05 Rijn Schelde Mondia France v Commission [EU:T:2007:17] para 48.

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128 Action for Annulment General Court held that an opinion expressed by a Commission official on the classification of security keys for the purposes of customs proceedings could not be regarded as a reviewable act, as EU legislation gave no power to the Commission to adopt the relevant measures, the competence belonging to the Member States.120 The mere fact that the national authority to which the opinion was addressed voluntarily complied with it does not change its non-binding nature (cf para 3.22).121 3.55

Mere interpretation of legislation. The content of the measure and the context of its adoption may also reveal that it merely interprets the relevant legislation, without producing binding legal effects.122 Such was the case in Regione Toscana, where the Commission informed the applicant by letter of the legal deadline for requesting final payment from EU funds, computed in accordance with the relevant legislation. The General Court highlighted that this did not amount to the application of that legislation, as the Commission’s letter simply drew attention to the relevant provisions, and, in any event, the letter predated the Region of Tuscany’s request for final payment, so it could not be regarded as a binding response.123 However, if, in spite of the declared aim, the institution’s or body’s communication not only clarifies and interprets the relevant legislation but also establishes new obligations, it is a binding act (cf para 3.19).124 (ii) Declaration of Intent

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Expression of future line of conduct is not a reviewable act. If the institution’s or body’s act merely reflects its intention to follow a particular line of conduct in the future, that act does not produce binding legal effects, meaning that an action for annulment against it is rejected as inadmissible.125 In Netherlands v Council (public access to documents), the Court of Justice considered the action against the ‘code of conduct’ concerning access to EU institution documents inadmissible, even if the contested act was the result of multilateral negotiations among EU institutions and expressed an agreement between them. It held that the ‘code of conduct’ only set out the principles governing access to the documents, while inviting the EU institutions to implement those principles by means of specific regulations.126 (iii) Internal Rules, Instructions and Guidelines

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Internal rules or instructions are only challengeable if possessing external legal effect. In principle, internal instructions of the institutions or bodies have effects only within the administration itself, do not affect the legal position of third parties and, therefore, are not amenable to review (cf para 3.24).127 Likewise, no action may lie against measures setting up only the internal organisation of an institution or body, such as the creation of committees of inquiry

120 Order of 3 December 2008 in Case T-210/07 RSA Security Ireland v Commission [EU:T:2008:548] paras 51–54. 121 Order of 5 September 2006 in Case T-148/05 Comunidad autónoma de Madrid and Mintra v Commission [EU:T:2006:234] para 43. 122 Case C-133/79 Sucrimex and Westzucker v Commission [EU:C:1980:104]; Case C-114/86 United Kingdom v Commission [EU:C:1988:449]. 123 Case T-81/97 Regione Toscana v Commission [EU:T:1998:180] paras 21–25. 124 Case C-325/91 France v Commission (communication on public undertakings) [EU:C:1993:245] paras 13–22. 125 Case C-114/86 UK v Commission (candidates for service contracts) [EU:C:1988:449] para 13; Case C-180/96 UK v Commission (‘mad cow disease’) [EU:C:1998:192] paras 27–28. 126 Case C-58/94 Netherlands v Council (public access to documents) [EU:C:1996:171] paras 25–26. 127 Case C-190/84 Les Verts v Parliament [EU:C:1988:94] para 8; Case C-366/88 France v Commission (instructions for managing EAGGF) [EU:C:1990:348] para 9.

Reviewable Acts 129 within the European Parliament.128 However, if those internal rules or instructions result in the creation of rights or obligations for third parties, they can be challenged. For instance, in France v Commission (instructions for managing EAGGF), the Court of Justice considered that the internal instructions given to Commission officials as regards sampling and analysis of products for the purposes of the management and control of the European Agricultural Guidance and Guarantee Fund (EAGGF) also defined the position taken by the Commission as to the extent of the supervisory powers of its officials, which, in addition, had previously been contested by several Member States. Therefore, it qualified the internal instructions as reviewable.129 Guidelines bind the Commission but not the Courts. In some fields, especially in areas where the Commission has a large margin of discretion, such as State aid, antitrust and mergers, it adopted guidelines in which, for the sake of transparency and in respect of superior norms, it indicates the basis of its decisional practice.130 The Commission is bound to its guidelines, and departing from them in individual cases might lead to the annulment of the decision131 unless the Commission gives reasons compatible with the principle of equal treatment.132 However, the Commission cannot rely on an individual decision’s compatibility with its own guidelines if the Courts find the decision contrary to superior norms.133 If the guidelines themselves appear to be contrary to those superior norms, nothing prevents the applicant from raising a plea of illegality against particular points of those guidelines.134

3.58

(iv) Refusal to Initiate Infringement Proceedings against Member States under Article 258 TFEU Commission decision not to start infringement proceedings is not reviewable. According to settled case law, the Commission has a discretionary power in deciding whether to bring an action for failure to fulfil Treaty obligations under Article 258 TFEU135 (cf para 2.15). Therefore, neither the complainant who informs the Commission of a purportedly illegal conduct of a State nor other interested parties are entitled to challenge the Commission’s decision to close the case definitively without issuing a formal notice or a reasoned opinion to the Member State.136 Likewise, no action may lie against the decision of the Commission not to initiate proceedings before the Court of Justice against the Member State concerned under Article 258(2) TFEU.137 This case 128 Order of 4 June 1986 in Case C-78/85 Group of the European Right v Parliament [EU:C:1986:227] para 11; Case C-190/84 Les Verts v Parliament [EU:C:1988:94]; Order of 22 May 1990 in Case C-68/90 Blot and Front National v Parliament [EU:C:1990:222] para 12. 129 Case C-366/88 France v Commission (instructions for managing EAGGF) [EU:C:1990:348] paras 8–9. 130 See, eg Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty (OJ 2014 C 249, p. 1); Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2). 131 Case T-35/99 Keller and Keller Meccanica v Commission [EU:T:2002:19] para 77; Joined Cases T-115/09 and T-116/09 Electrolux and Whirlpool Europe v Commission [EU:T:2012:76] paras 38–41. 132 Case C-386/10 P Chalkor v Commission (copper plumbing tubes cartel) [EU:C:2011:815] para 60. 133 Case C-389/10 P KME Germany and Others v Commission (copper plumbing tubes cartel) [EU:C:2011:816] para 129. 134 Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [EU:C:2005:408] para 212; see also Case T-106/10 Spain v Commission (EAGGF) [EU:T:2011:740]. 135 Case C-247/87 Star Fruit v Commission [EU:C:1989:58] para 11; Case C-87/89 Sonito and Others v Commission [EU:C:1990:213] para 6; Order of 10 July 2007 in Case C-461/06 P AEPI v Commission [EU:C:2007:425] para 24. 136 Order of 12 June 1992 in Case C-29/92 Asia Motor France v Commission [EU:C:1992:264] para 21; Order of 19 September 2005 in Case T-247/04 Aseprofar and Edifa v Commission [EU:T:2005:327] paras 40 and 45. 137 Order of 15 March 2004 in Case T-139/02 Institouto N. Avgerinopoulou and Others v Commission [EU:T:2004:75] para 76; Order of 7 September 2009 in Case T-186/08 LPN v Commission [EU:T:2009:309] paras 49–51. Nor can a party bring an action for damages against the Commission: see Order of 14 January 2004 T-202/02 Makedoniko Metro and Michaniki v Commission [EU:T:2004:5] para 43.

3.59

130 Action for Annulment law was extended to Article 106(3) TFEU.138 In Schemaventotto, the General Court examined a situation where the Commission originally started proceedings against Italy under the Merger Regulation,139 as the Commission found some national measures impeding the implementation of an approved merger to be illegal. The General Court held that since, after the abandonment of the merger, that procedure was transformed into an infringement procedure under Article 258 TFEU, the interested parties were not entitled to challenge the decision of the Commission not to initiate proceedings before the Court of Justice under Article 258 TFEU.140 (v) Decision to Initiate Court Proceedings 3.60

Decision to start EU, national or third country court proceedings not reviewable. In Philip Morris and Reynolds Tobacco, the Courts made clear that the commencement of court proceedings by an institution does not per se alter the legal position of the parties, regardless of whether the proceedings are brought before the EU judicature, a court in a Member State or even a third country such as the United States, as binding effects may only result from the judgment of the court. Therefore, no action for annulment may lie against such an act.141 (vi) Decision to Conclude an International Agreement

3.61

Decision to conclude an international agreement actionable. According to the case law, any act of the Council concluding an international agreement is in itself a reviewable act.142 In France v Commission (agreement on competition law with the USA), the Court of Justice rather leniently interpreted the applicant’s head of claim requesting the annulment of an international agreement between the Commission and the Federal Trade Commission of the United States as being directed against the act whereby the Commission sought to conclude the Agreement, and found the application admissible.143 (vii) OLAF Reports

3.62

OLAF reports bereft of binding legal effect and not amenable to review. The General Court repeatedly held in the context of OLAF reports that since the national authorities were free to decide what action, if any, they would take on the report, they were the only authorities having the power to take decisions capable of affecting the applicant’s legal position, that is, to adopt binding acts.144 Therefore, OLAF reports are not reviewable acts (cf para 3.21), although the applicant may obtain a reimbursement of damage caused by a flawed report (cf para 3.64).

138 Case C-141/02 P Commission v max-mobil [EU:C:2005:98] para 69. 139 Art 21 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1). 140 Order of 2 September 2010 in Case T-58/09 Schemaventotto v Commission [EU:T:2010:342] para 125. 141 Joined Cases T-377/00, T-379/00, T-380/00, T-260/01 and T-272/01 Philip Morris and Others v Commission [EU:T:2003:6] paras 91 et seq; Case C-131/03 P Reynolds Tobacco and Others v Commission [EU:C:2006:541] paras 58–61. 142 Case C-327/91 France v Commission [EU:C:1994:305] para 16; Opinion of the Court 3/94 [EU:C:1995:436] para 22; Case T-212/02 Commune de Champagne and Others v Council and Commission [EU:T:2007:194] para 71. 143 Case C-327/91 France v Commission (agreement on competition law with the USA) [EU:C:1994:305] paras 16–17. 144 Order of 13 July 2004 in Case T-29/03 Comunidad Autónoma de Andalucía v Commission [EU:T:2004:235] paras 31–39: the General Court qualified OLAF reports as opinions or recommendations; Case T-309/03 Camós Grau v Commission [EU:T:2006:110] paras 47–51; Case T-193/04 Tillack v Commission [EU:T:2006:292] paras 69–70.

Reviewable Acts 131

3.1.2.3. Alternative Judicial Remedies against Acts not Amenable to Review Action before national courts. Where the institution or body has no power to adopt a legally binding act, but merely provides an input for national proceedings or an opinion which is taken into account by national authorities, the applicant may challenge the national measure before national courts. The latter may, if need be, refer questions to the Court of Justice for a preliminary ruling as regards the lawfulness of the institution’s or body’s input or opinion, as such questions may also relate to non-binding Union acts.145

3.63

Inadmissibility of action for annulment does not preclude a successful action for damages. It is settled case law that even if a conduct or a measure of an institution or body does not qualify as a reviewable act, nothing prevents the applicant from bringing an action for non-contractual liability under Articles 268 and 340(2) TFEU, where the conduct or measure is of such a nature as to entail liability for the Union.146

3.64

Reclassification as an arbitration clause case. An action for annulment brought against an act of EU institutions or bodies which has a purely contractual legal basis is inadmissible (cf para 3.20). However, the applicant may request the requalification of the application as an action brought under an arbitration clause pursuant to Article 272 TFEU. The General Court reclassifies the action if the conditions for such reclassification are met: if the express intention of the applicant does not preclude it and if at least one ground alleging infringement of the rules governing the contractual relationship in question (contractual provisions or national rules) is relied on in the application. Those two criteria are cumulative.147

3.65

3.1.2.4. Existent Act (i) Non-existent Acts Fundamental defects. The acts of the institutions or bodies of the Union are presumed to be lawful, which means that those acts produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling or a plea of illegality.148 However, in some very specific and narrow circumstances, the EU Courts recognised that the act was vitiated by such fundamental defects that it could not be regarded as legally existent, that is, as capable of producing legal effects.149

3.66

Action against non-existent act inadmissible. Actions of annulment directed against non-existent acts will be declared inadmissible by the Courts. However, in such a case, the applicant obtains the same practical result as if the act had been annulled – the Courts declare that the contested act or measure is non-existent, implying that it cannot produce any legal effect.

3.67

145 Order of 12 December 2007 in Case T-109/06 Vodafone España and Vodafone Group v Commission [EU:T:2007:384] para 102; See also Case C-322/88 Grimaldi [EU:C:1989:646] para 8; Case C-94/91 Wagner [EU:C:1992:181] paras 16–17. 146 Joined Cases T-377/00, T-379/00, T-380/00, T-260/01 and T-272/01 Philip Morris and Others v Commission [EU:T:2003:6] para 123; Case T-309/03 Camós Grau v Commission [EU:T:2006:110] para 78. 147 Order of 15 February 2016 in Case T-82/15 InAccess Networks v Commission [EU:T:2016:90] paras 52–54 and the case law cited. 148 See, inter alia, Case C-199/06 CELF and Ministre de la Culture et de la Communication [EU:C:2008:79] para 60 and the case law cited. In contrast, if a measure is declared unlawful as a consequence of a successful action for damages, this fact does not remove it from the EU legal order (Case T-178/98 Fresh Marine v Commission [EU:T:2000:240] para 45). 149 Case C-31/76 Macevicius v Parliament [EU:C:1977:79]; Case T-36/09 dm-drogerie markt v OHIM – Distribuciones Mylar (dm) [EU:T:2011:449].

132 Action for Annulment Therefore, rejecting the application by reason of the non-existence of the contested act is arguably the only case where inadmissibility plays in favour of the applicant. Accordingly, the defendant institution or body will be ordered to bear the costs. 3.68

Balancing between legality and legal certainty. The non-existence of an act can be stated by the Courts – if need be, ex officio – even if the two-month deadline for challenging acts of institutions or bodies foreseen in Article 263 of the TFEU has already lapsed. Therefore, the Courts need to balance between legal certainty and the respect of legality which requires the removal of acts which are tainted by such an obvious irregularity that they cannot be tolerated by the EU legal order.150

3.69

The applicant must show serious and manifest defects going beyond normal irregularity sufficient for annulment. As a result, the Courts displayed considerable reluctance to declare an act non-existent. In Consorzio Cooperative d’Abruzzo, the Court held that the error of the Commission consisting in the adoption of a draft other than the one having passed through the preparatory procedure did not entail the non-existence of the measure adopted, even if it breached the internal rules of the Commission and its content differed from what was approved by a body whose consent was required.151 In BASF, the Commission failed to observe its rules of procedure, could not produce an authenticated copy of the contested decision and also the published version of the decision differed from the one attached to the minutes of the Commission meeting at which it was adopted.152 However, the Court of Justice still found that the Commission had adopted the operative part of a decision as set out in the minutes taken at its meeting and, consequently, that the irregularities during the procedure of adoption did not justify the qualification of the decision as legally non-existent.153 In Valverde Mordt, the Court made clear that the irregularity implying non-existence must be so gross and so obvious that it goes far beyond a normal irregularity resulting from an erroneous assessment of the facts or from a breach of the law which would still constitute sufficient grounds for annulment.154

3.70

Examples. In view of these extremely strict conditions, there are very few examples where the Courts have established non-existence. In Hebrant, the Court of Justice held that a periodic report which was definitively adopted by the administration more than 15 months after the period in respect of which it was drawn up, but where there were no special circumstances justifying such a delay, was legally non-existent.155 In Commission v France (rediscount rate for export claims), the Court made clear, in the context of an infringement action against a Member State, that it may state the non-existence of a provision of secondary legislation if it lacked all legal basis in the Union legal system even if no proceedings for annulment of that provision had been brought within the period prescribed and it had therefore become definitive.156

150 Joined Cases C-7/56 and C-3/57 to C-7/57 Algera and Others v Common Assembly [EU:C:1957:7] paras 60–61; Case C-31/76 Macevicius v Parliament [EU:C:1977:79] para 23; Case C-15/85 Consorzio Cooperative d’Abruzzo v Commission [EU:C:1987:111] paras 10–11; Case C-137/92 P Commission v BASF and Others [EU:C:1994:247] paras 48–50; Case T-36/09 dm-drogerie markt v OHIM – Distribuciones Mylar (dm) [EU:T:2011:449] para 83. 151 Case C-15/85 Consorzio Cooperative d’Abruzzo v Commission [EU:C:1987:111] paras 8–11. 152 Joined Cases T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, T-102/89 and T-104/89 BASF and Others v Commission [EU:T:1992:26] paras 90–94. 153 Case C-137/92 P Commission v BASF and Others [EU:C:1994:247] paras 51–52. 154 Case T-156/89 Valverde Mordt v Court of Justice [EU:T:1991:33] para 84. 155 Case C-31/76 Macevicius v Parliament [EU:C:1977:79] paras 22–26. 156 Joined Cases C-6/69 and C-11/69 Commission v France (rediscount rate for export claims) [EU:C:1969:68] paras 11–13.

Reviewable Acts 133 (ii) Withdrawn Acts and Replaced Acts Does the withdrawn act still have legal consequences? The mere fact that the contested act is withdrawn or is no longer in force does not affect its qualification as a reviewable act. The Courts need to examine if the annulment of the withdrawn act may in itself have legal consequences.157 In the case of private applicants, those legal consequences have to affect the applicant so that he retains an interest in the annulment. If the applicant had no interest in bringing proceedings at the time of filing the application, the application will be rejected as inadmissible. If the interest disappears during the proceedings before the Courts, the latter will declare that there is no need to adjudicate158 (cf para 3.109 et seq, in particular 3.117 and Section 5.7.2. No Need to Adjudicate). The withdrawal of acts which only exert legal effects in the future – for instance, the withdrawal, during the Court proceedings, of a Commission decision authorising individual State aid, where the State aid has not yet been granted – renders the action for annulment devoid of purpose and implies that there is no need to adjudicate.159

3.71

Past and future impact of a withdrawn decision. In IMS Health, the General Court examined both the past and future impact of a withdrawn decision on the legal position of the applicant. The contested decision – by which the Commission ordered IMS to grant compulsory licences of its intellectual property rights to other economic operators – had been withdrawn with an ex nunc effect. The General Court found that there could be no impact on the legal position of the applicant before the withdrawal as the effects of the decision had already been suspended long before its withdrawal. As regards the alleged impact after the withdrawal, the General Court added that the mere fact that the applicant’s competitors or other interested operators could refer, before the national courts, to the existence in the past of the contested decision in order to obtain a licence or compensation had no effect in itself on the legal position of the applicant. Consequently, it found that there was no need to adjudicate.160

3.72

Act replaced with another act having the same content. When an act of an institution or body is replaced, during the Court proceedings, by another measure with the same subject matter, the applicant does not need to file a fresh application for annulment, as it can also adapt its claims and pleas in law to challenge the replacement act (cf paras 4.161–4.165). As the General Court repeatedly held in the context of fund-freezing measures, it would be contrary to the principle of due administration of justice and to the requirements of procedural economy to oblige the applicant to make a fresh application. Moreover, it would be inequitable to allow the institution to substitute another measure to the contested act and forbid, at the same time, the other party to extend his original pleadings to the later measure or submit supplementary pleadings directed against it161 (cf para 3.218). However, where the applicant introduced separate applications for annulment against both the initial and the replacing measure, and the legal effect of the latter included that of the first one, the Courts ruled that the action introduced against the initial measure had become devoid of purpose.162

3.73

157 Order of 14 March 1997 in Case T-25/96 Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission [EU:T:1997:34] para 16. 158 Case C-53/85 Akzo Chemie v Commission [EU:C:1986:256] para 21; Case C-362/05 P Wunenburger v Commission [EU:C:2007:322] para 42. 159 Case T-239/94 EISA v Commission [EU:T:1997:158] para 35. 160 Order of 10 March 2005 in Case T-184/01 IMS Health v Commission [EU:T:2005:95] paras 47–49. 161 Case T-229/02 PKK v Council [EU:T:2008:87] para 49; Case T-256/07 People’s Mojahedin Organization of Iran v Council [EU:T:2008:461] para 46. 162 Joined Cases C-305/86 and C-160/87 Neotype Techmashexport v Commission and Council [EU:C:1990:295] paras 11–14.

134 Action for Annulment (iii) Expired Acts 3.74

Does the annulment of the expired act benefit the applicant? The possible expiry of a measure in the course of proceedings seeking its annulment does not in itself mean that the Courts must declare that there is no need to adjudicate for lack of purpose or for lack of interest in bringing proceedings. The relevant question the Courts need to examine is if the annulment of the act is liable to procure an advantage for the applicant so that he retains an interest to act (cf para 3.117).163

3.1.3. Defendants 3.1.3.1. EU Institutions, Bodies, Offices and Agencies 3.75

Treaty provisions. Under Article 263(1) TFEU, the Court of Justice of the European Union has the power to review the legality of acts adopted by most EU institutions, ie the Parliament, the European Council, the Council, the Commission, and the ECB, as well as acts of bodies, offices or agencies of the EU. Throughout this book, the term ‘institution or body’ denotes any institution, body, office or agency of the Union within the meaning of Articles 263(1) and 265(1) TFEU. Actions for annulment are brought against one or several of these institutions or bodies, which are the defendants in these cases.

3.76

Historical development and impact of the Lisbon Treaty. Under the previous versions of the Treaties, not all the EU institutions currently listed in Article 263(1) TFEU could stand as defendants. Moreover, bodies, offices and agencies were not mentioned at all before the Treaty of Lisbon. Gradual extension of the circle of institutions and bodies whose acts were subject to review was brought not only by Treaty amendments (such as the Treaty of Maastricht creating the ECB and inserting it among the list of EU institutions whose acts are reviewable), but also by judgments of the Court of Justice. The arguably most remarkable change came with the seminal Les Verts judgment. The applicant requested the annulment of two decisions of the Bureau of the European Parliament related to the financing of political groupings. At the time of the application, in 1983, Article 173 of the Treaty on action for annulment (now Article 263 TFEU) did not include acts of the European Parliament among reviewable acts. Yet, the Court of Justice considered that the EU (then the European Economic Community (EEC)) was a community based on the rule of law and therefore the Treaty had established a complete system of legal remedies designed to permit the Court of Justice to review the legality of measures adopted by the institutions. This system of remedies could not be complete if acts of institutions which do not require national implementing measures to take effect could not be challenged before the Court of Justice, since no proceedings could be instituted as regards the effect of such acts before national courts either. It therefore ruled that an action for annulment could be brought against measures of the European Parliament intended to have legal effects vis-à-vis third parties, even in the absence of an explicit mention of Parliament acts in Article 173 of the EEC Treaty (now Article 263 TFEU).164 The idea was taken further in Sogelma v European Agency of Reconstruction (EAR) to also cover acts of

163 Case C-362/05 P Wunenburger v Commission [EU:C:2007:322] para 47; Case T-299/05 Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council [EU:T:2009:72] para 43; Case T-291/04 Enviro Tech Europe and Enviro Tech International v Commission [EU:T:2011:760] paras 84–89. 164 Case C-294/83 Les Verts v Parliament [EU:C:1986:166] paras 23–24.

Defendants 135 any EU body, even if neither the Treaty nor the piece of secondary legislation creating the EAR foresaw, at the material time, that the latter’s acts might be amenable to review.165 This case law was later also applied to the European Maritime Security Agency (EMSA)166 and the European Environment Agency (EEA).167 The current ‘catch-all’ formula of Article 263(1) TFEU codifies this case law and marks the possible end of a progressive extension of the circle of defendants, as all bodies, offices and agencies are now included and the only EU institutions – deliberately – not listed in Article 263(1) TFEU are the Court of Justice of the European Union and the Court of Auditors (cf para 3.77). EU institutions. Under Article 263(1) TFEU, actions for annulment may be brought against the Parliament, the Council, the European Council, the Commission and the ECB.

3.77

The Court of Justice of the European Union and the Court of Auditors may be defendants in public procurement cases. The Court of Justice of the European Union and the Court of Auditors, as supreme organs controlling respectively the legality of the EU’s acts and its proper finances, are deliberately left out from the list of EU institutions whose acts are reviewable under Article 263(1) TFEU. The field of public procurement is an exception – the legality of acts adopted by these EU institutions that adversely affect third parties (participants to the public procurement procedure) may be reviewed by the General Court, as follows from Evropaïki Dynamiki v Court of Justice of the European Union.168 The General Court did not examine the admissibility when annulling a decision of the Court of Justice of the European Union rejecting the applicant’s offer in a public tender. No plea of inadmissibility was raised by the defendant. The result can nonetheless be viewed as an implicit extension of the principle, laid down in Les Verts,169 that a complete system of judicial protection must be ensured (cf para 3.76), in a way that even acts of the Court of Justice of the European Union cannot escape review in situations where it adopts acts which do not pertain to its judicial competences foreseen in the Treaty. It is worth mentioning that an action for annulment brought against the Court of Auditors in the field of public procurement was also admissible.170

3.78

EU bodies, offices and agencies. The reference to EU bodies, offices and agencies in Article 263(1) TFEU is a novelty introduced by the Treaty of Lisbon. EU bodies include the European Investment Bank, the Economic and Social Committee and the Committee of the Regions, expressly foreseen in the Treaties.171 Offices172 and agencies173 are bodies distinct from the EU institutions

3.79

165 Case T-411/06 Sogelma v EAR [EU:T:2008:419]. 166 Case T-70/05 Evropaïki Dynamiki v EMSA [EU:T:2010:55] paras 64 et seq. 167 Case T-331/06 Evropaïki Dynamiki v EEA [EU:T:2010:292]. 168 Case T-272/06 Evropaïki Dynamiki v Court of Justice [EU:T:2008:334]. 169 Case C-294/83 Les Verts v Parliament [EU:C:1986:166] paras 23–24. 170 Case T-87/11 GRP Security v Court of Auditors [EU:T:2013:161]. 171 Union bodies: Committee of the Regions, European Data Protection Supervisor, European Economic and Social Committee, European External Action Service (EEAS), European Investment Bank, European Investment Fund, European Ombudsman, European Personnel Selection Office (EPSO), European School of Administration, Publications Office of the European Union. 172 Offices include the European Personnel Selection Office (EPSO), which is also a body. The following offices are also agencies: Community Plant Variety Office (CPVO), European Asylum Support Office (EASO), European Police Office (Europol), European Union Intellectual Property Office (EUIPO). 173 EU agencies: Agency for the Cooperation of Energy Regulators (ACER), Body of European Regulators for Electronic Communications (BEREC), Clean Sky 2 Joint Undertaking (Clean Sky 2 Joint Undertaking), Community Plant Variety Office (CPVO), Consumers, Health, Agriculture and Food Executive Agency (CHAFEA), Education, Audiovisual and Culture Executive Agency (EACEA), European Insurance and Occupational Pensions Authority (EIOPA), EURATOM Supply Agency (ESA), European Agency for Safety and Health at Work (EU-OSHA), European Agency

136 Action for Annulment and have their own legal personality. They are set up by an act of secondary legislation in order to accomplish a specific technical, scientific or managerial task. They may be grouped into policy agencies (cf para 3.82), agencies active in the domain of police and judicial cooperation in criminal matters (cf para 3.83), and common security and defence policy agencies (cf para 3.84). 3.80

The Economic and Social Committee and the Committee of the Regions. The Economic and Social Committee and the Committee of the Regions operate in an advisory capacity, meaning that their acts produce, in principle, no legal effects vis-à-vis third parties. As a rule, their acts are therefore not reviewable, except for decisions adopted in public procurement procedures.

3.81

The European Investment Bank. Article 271(a)–(c) TFEU attributes specific competences to the Courts as regards the review of acts of the European Investment Bank (EIB). It is, however, unclear if the draftsmen of the Lisbon Treaty intended to restrict the review of legality by the Courts to those acts listed. In fact, under Article 263(1) TFEU, all acts having an effect vis-à-vis third parties adopted by EU bodies are reviewable, and the EIB is one of those bodies. In any event, acts of the EIB adopted in public procurement cases174 are reviewable.

3.82

Policy agencies. ‘Policy agencies’ exert their activities in the domains which belonged to the Community pillar of the EU prior to the entry into force of the Treaty of Lisbon. They include the European Chemicals Agency (ECHA)175 and the European Union Intellectual Property Office (EUIPO), responsible for the examination and registration of EU trade marks and designs. It is important to mention that actions brought against the decisions of the EUIPO adopted in exerting its competences regarding the registration or grant of intellectual property rights are not actions for annulment. These actions have their separate legal basis in the IP Regulations (cf para 3.530), which were adopted pursuant to Article 262 TFEU (cf Chapter 3.5. Intellectual Property Cases). However, other administrative decisions of the EUIPO (eg related to public procurement) may be challenged by bringing an action for annulment.176

3.83

Police and judicial cooperation in criminal matters agencies. Police and judicial cooperation in criminal matters (PJCCM) corresponds to the former third pillar of the pre-Lisbon structure, which used to be governed by the provisions of Title VI of the old EU Treaty. Agencies for the Management of Operational Cooperation at the External Borders (Frontex), European Asylum Support Office (EASO), European Aviation Safety Agency (EASA), European Banking Authority (EBA), European Centre for Disease Prevention and Control (ECDC), European Centre for the Development of Vocational Training (Cedefop), European Chemicals Agency (ECHA), European Defence Agency (EDA), European Environment Agency (EEA), European Fisheries Control Agency (EFCA), European Food Safety Authority (EFSA), European Foundation for the Improvement of Living and Working Conditions (Eurofound), European GNSS Agency (GSA), European Institute for Gender Equality (EIGE), European Institute of Innovation and Technology (EIT), European Maritime Safety Agency (EMSA), European Medicines Agency (EMA), European Monitoring Centre for Drugs and Addiction (EMCDDA), European Union Agency for Law Enforcement Training (CEPOL), European Police Office (Europol), European Railway Agency (ERA), European Research Council Executive Agency (ERCEA), European Securities and Markets Authority (ESMA), European Training Foundation (ETF), European Union Agency for Fundamental Rights (FRA), European Union Agency for Large-Scale IT Systems in the area of freedom, security and justice (eu-LISA), European Union Agency for Network and Information Security (ENISA), European Union Institute for Security Studies (EUISS), European Union Intellectual Property Office (EUIPO), European Union Satellite Centre (Satcen), Executive Agency for Small and Medium-Sized Enterprises (EASME), IMI 2 Joint Undertaking (IMI 2 Joint Undertaking), Innovation & Networks Executive Agency (INEA), Research Executive Agency (REA), SESAR Joint Undertaking (SESAR Joint Undertaking), The European Union’s Judicial Cooperation Unit (Eurojust), The Single Resolution Board (SRB), Translation Centre for the Bodies of the European Union (CdT). See http://europa.eu/contact/institutions-bodies/index_en.htm. 174 Case T-461/08 Evropaïki Dynamiki v European Investment Bank [EU:T:2011:494]. 175 Order of 21 September 2011 in Case T-346/10 Borax Europe v ECHA [EU:T:2011:510]. 176 Case T-556/11 European Dynamics Luxembourg and Others v EUIPO [EU:T:2016:248].

Defendants 137 having tasks in this domain include the European Union Agency for Law Enforcement Training (CEPOL), the European Union Agency for Law Enforcement Cooperation (Europol) and the European Union’s Judicial Cooperation Unit (Eurojust). Prior to the entry into force of the Lisbon Treaty, the jurisdiction of the Court of Justice was restricted in third pillar matters. In particular, Article 230 TEC on action for annulment (now Article 263 TFEU) was not applicable to acts adopted in this domain. In Spain v Eurojust, the Court of Justice ruled that for this reason no action for annulment could lie against calls for applications for the recruitment of temporary staff issued by Eurojust.177 It is important to note that the Treaty of Lisbon integrated all the former third pillar matters into the single structure of the TFEU,178 which implies that the EU Courts now have full competence in this domain and renders the ruling in Spain v Eurojust obsolete in this respect. After the entry into force of the Treaty of Lisbon, acts adopted by the police and judicial cooperation in criminal matters agencies are reviewable by virtue of Article 263 TFEU under the same conditions as those of ‘policy agencies’ or acts of the European Investment Bank or the Parliament, that is, if they produce legal effects towards third parties.179 Common security and defence policy agencies. Common security and defence policy corresponds to the former second pillar of the EU in the pre-Lisbon structure. There are several agencies active in this field, eg the European Defence Agency (EDA), the European Union Institute for Security Studies (EUISS) and the European Union Satellite Centre (EUSC). In contrast to police and judicial cooperation in criminal matters, in respect of which former limitations on the jurisdiction of the EU Courts were lifted by the Treaty of Lisbon (cf para 3.83), acts adopted under the Treaty provisions relating to the common foreign and security policy (which includes common security and defence policy) are entirely exempted from the jurisdiction of the EU Courts by virtue of Article 275 TFEU.

3.84

European Communities Personnel Selection Office (EPSO). The recruitment of officials of the European Union is governed, in particular, by Articles 29–31 of the Staff Regulations.180 Therefore, the Courts deal with actions seeking the annulment of EPSO measures filed by candidates participating in open competitions as staff cases brought under Article 270 TFEU181 (cf Chapter 3.4. Staff Cases). In Italy v Commission (notice of competition), Italy brought an action for annulment against both the Commission and EPSO. The latter was the author of the contested act, a notice of competition concerning the recruitment of EU officials. Further to a written question asked by the General Court, Italy agreed that the action was brought only against the Commission.182 It appears, therefore, that acts of EPSO are imputable to the Commission and can be challenged through actions for annulment brought against the latter.

3.85

The European Anti-fraud Office (OLAF). OLAF is an internal department of the Commission, with purely functional independence limited to its investigation activities and without a separate legal personality. It is therefore represented by the Commission, and an action calling into question the legality of OLAF measures must be considered to be directed against

3.86

177 Case C-160/03 Spain v Eurojust [EU:C:2005:168] paras 38–40. 178 On the creation of a single institutional framework including former third pillar matters, see R Barents, ‘The Court of Justice after the Treaty if Lisbon’ (2010) Common Market Law Review 709, 719. 179 See, eg Order of 27 September 2017 in Case T-366/16 Gaki v Europol [EU:T:2017:670] paras 38 et seq, in which the General Court examined the merits of the application. 180 Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (OJ 1962 P 45, p. 1385), as amended. 181 Order of 6 September 2011 in Case T-282/11 Alionescu v EPSO [EU:T:2011:425] paras 8–9. 182 Case T-248/10 Italy v Commission (notice of competition) [EU:T:2013:534] paras 9 and 26–27.

138 Action for Annulment the Commission.183 It is noteworthy that OLAF investigation reports are not reviewable acts as they produce no legal effect (cf para 3.62). 3.87

Union delegations to third countries. The legal status of Union delegations is characterised by a twofold organic and functional dependence with respect to the European External Action Service and the Commission, meaning that they cannot be considered a body under Article 263 TFEU. Therefore, they do not have the capacity to be defendants. Decisions by the heads of delegation as regards public procurement are attributable to the Commission.184

3.1.3.2. Act Imputable to the Institution or Body 3.88

Conditions. In order to be attributed to an institution or body, an act has to fulfil two conditions. First, it must be the outcome of the latter’s decision-making power.185 This is a logical c orollary of the rule that only acts having binding legal effects may be amenable to review and that such effects may only be produced by acts which the institution or body had the power to adopt (cf para 3.16 et seq). Secondly, as the Court of Justice ruled in Nefarma, it must transpire from the text of the act that its author intended to state the institution’s position, and not merely a personal opinion.186

3.89

Acts of Member State authorities underlying measures of institutions or bodies cannot be challenged via Article 263 TFEU. As follows from the seminal Oleificio Borelli judgment, if a procedure leading up to the adoption of an act of an institution or body requires opinions or other measures from Member States, which qualify as preparatory measures, the validity of those Member State measures cannot be reviewed in an action for annulment under Article 263 TFEU, even if they determine the outcome of that procedure. Member States must ensure effective legal remedies against such acts of their authorities.187

3.90

The Commission’s services. Although, formally, the College of Commissioners wields the Commission’s powers, the latter’s Rules of Procedure188 provide that a particular Commissioner may be empowered to adopt certain measures and that this power may be delegated or sub-delegated to other officials (empowerment and delegation procedures).189 The internal rules of the Directorates-General normally specify what sort of act is to be signed at which level, ie by directors general, directors or heads of unit. Nonetheless, written or even oral statements made by other staff may also be considered to be reviewable acts (or interpreted as statements in which a reviewable act appears), provided that they have a legally binding content (cf para 3.25 et seq). As the Courts repeatedly held in the context of Commission decisions, the nature of an act cannot be called into question solely on the ground that it emanates from the Commission’s services and not from the Commission itself.190 183 Case T-309/03 Camós Grau v Commission [EU:T:2006:110] para 66; Order of 15 March 2010 in Case T-435/09 GL2006 Europe v Commission and OLAF [EU:T:2013:439] para 16. 184 Order of 4 June 2012 in Case T-395/11 Elti v Delegation of the European Union to Montenegro [EU:T:2012:274] paras 46 and 64. See also Order of 4 June 2013 in Case T-213/12 Elitaliana v Eulex Kosovo [EU:T:2013:292] para 35. 185 K Lenaerts, D Arts and I Maselis, Procedural Law of the European Union (Sweet & Maxwell, London, 2006) 241. 186 Case T-113/89 Nefarma v Commission [EU:T:1990:82] para 81. 187 Case C-97/91 Oleificio Borelli v Commission [EU:C:1992:491] paras 9–14. 188 Arts 13–14 of the Rules of procedure of the Commission (OJ 2000 L 308, p. 26). 189 The system of power delegation has been recognised as valid in Case C-5/85 AKZO v Commission [EU:C:1986:328] para 2614. 190 Case T-37/92 BEUC and NCC v Commission [EU:T:1994:54] para 38; Case T-369/08 EWRIA v Commission [EU:T:2010:549] para 42.

Defendants 139

3.1.3.3. Member States as Defendants? Member States’ acts cannot be challenged via actions for annulment. The action for annulment, as foreseen in Article 263 TFEU, serves for the direct review of the legality of acts adopted by EU institutions or bodies. The General Court only has the competence to hear and determine such actions if they are brought against institutions or bodies of the EU, as specified in Article 263(1) TFEU. Therefore, actions for annulment brought against acts of the Member States are dismissed as inadmissible, on grounds of manifest lack of jurisdiction.191

3.91

Where a national measure was annulled – Rimšēvičs. Albeit not under Article 263 TFEU, the Court of Justice found, in its recent judgment in Rimšēvičs and ECB v Latvia,192 that it had jurisdiction to annul a national measure. The Governor of the Central Bank of Latvia, Mr Rimšēvičs, together with the ECB, contested the decision of the Latvian Anti-Corruption Office, which had temporarily prohibited Mr Rimšēvičs from performing his duties. It is important to note that, under Article 283(1) TFEU, the Governing Council of the ECB comprises the governors of the national central banks of the Member States whose currency is the euro, among them Latvia. Moreover, under Article 14.2 of the Statute of the ESCB (European System of Central Banks) and of the ECB, the (national) decision to relieve a governor may be referred to the Court of Justice by the governor concerned or the Governing Council on grounds of infringement of the Treaties or of any rule of law relating to their application. The Court of Justice received two parallel actions, one from Mr Rimšēvičs, the governor concerned, and one from the ECB, on behalf of the Governing Council, challenging the legality of the Latvian Anti-Corruption Office’s measure. While both applicants requested a declaratory judgment, the Court of Justice classified the applications brought under Article 14.2 of the Statute of the ESCB and the ECB as actions seeking the annulment of the measure concerned. The Court of Justice referred to the features of the action brought under Article 14.2 Statute of the ESCB and the ECB, ie the two-month time limit and the grounds for review, which were the same as in the case of actions for annulment brought under Article 263 TFEU.193 It went on to consider that

3.92

69 … Article 14.2 of the Statute of the ESCB and of the ECB derogates from the general distribution of powers between the national courts and the courts of the European Union as provided for by the Treaties and in particular by Article 263 TFEU, as an action under that article may concern only acts of EU law … However, that derogation can be explained by the particular institutional context of the ESCB within which it operates. The ESCB represents a novel legal construct in EU law which brings together national institutions, namely the national central banks, and an EU institution, namely the ECB, and causes them to cooperate closely with each other, and within which a different structure and a less marked distinction between the EU legal order and national legal orders prevails. 70 … It is because of this hybrid status and … in order to guarantee the functional independence of the governors of the national central banks within the ESCB that, by way of exception, a decision taken by a national authority relieving one of those governors from office may be referred to the Court. 71 Article 14.2 of the Statute [of the ESCB and of the ECB] thus adds a legal remedy to the system of legal remedies laid down by the Treaties which is very specific, as is apparent from the very small number of persons to whom it is available, the unique subject matter of the decisions against which it may be used and the exceptional circumstances in which it may be exercised.194

191 Order of 13 December 2018 in Case T-512/18 Brzyszcz v Poland [EU:T:2018:1027] paras 6–7. See also Order of 8 March 2017 in Case T-380/16 Popescu v Romania [EU:T:2017:159]. 192 Joined Cases C-202/18 and C-238/18 Rimšēvičs and ECB v Latvia [EU:C:2019:139]. 193 Joined Cases C-202/18 and C-238/18 Rimšēvičs and ECB v Latvia [EU:C:2019:139] para 67. 194 Joined Cases C-202/18 and C-238/18 Rimšēvičs and ECB v Latvia [EU:C:2019:139] paras 69–71.

140 Action for Annulment It transpires from the above that the Court of Justice justified the solution to consider Rimšēvičs as an action concerning the annulment of a national measure with the peculiar circumstances of the case. The Court emphasised that the legal basis for bringing the actions was not Article 263 TFEU, but Article 14.2 of the Statute of the ESCB and of the ECB. Therefore, the Rimšēvičs judgment, in itself, does not entail that actions under Article 263 TFEU could be brought against Member States.

3.1.4. Applicants and Standing 3.93

Overview – conditions of admissibility related to the applicant. Article 263 TFEU groups applicants into three categories based on the conditions they have to fulfil in order to bring an action for annulment before the EU Courts. First, privileged applicants are Members States, the Parliament, the Council and the Commission. They may bring such an action without any restriction (cf Subsection 3.1.4.1). Secondly, semi-privileged applicants are the Court of Auditors, the ECB and the Committee of the Regions. They have the standing to bring an action for annulment insofar as it is for the purpose of protecting their prerogatives (cf Subsection 3.1.4.2). The third category, individual applicants, is a rather heterogeneous group consisting of all natural or legal persons not covered by the first two categories, that is, essentially, natural persons, companies, and regional entities of Member States or third countries. Since Article 263 TFEU does not mention bodies, offices and agencies of the EU separately as privileged or semi-privileged applicants, they also appear to be included in this third category. Individual applicants must show their capacity to bring proceedings and their legal interest in bringing proceedings (cf Subsection 3.1.4.3). Furthermore, as regards standing, they may only bring an action for annulment (i) against an act addressed to them (cf Subsection 3.1.4.5.), (ii) against an act not addressed to them but which is nonetheless of direct and individual concern to them (cf Subsection 3.1.4.6.) or (iii) against a regulatory act which is of direct concern to them and does not entail implementing measures (cf Subsection 3.1.4.7).

3.1.4.1. Member States, Parliament, Council, Commission 3.94

Privileged applicants. Member States, the Parliament, the Council and the Commission form the group of privileged applicants, meaning that they have unlimited standing and do not need to show any interest in the outcome of the case when bringing an action for annulment.195 For instance, a Member State may bring an action for annulment against a Council regulation it voted in favour of in the Council196 or against a decision addressed to a company owned by another Member State.197 As Member States have created the EU structure by transferring a part of their sovereign powers, while the Parliament, the Council and the Commission are responsible for implementing the EU objectives through legislation and its execution, their interest in verifying the legality of all EU measures is presumed. Nonetheless, other general conditions necessary for the admissibility of an action for annulment have to be fulfilled even in the case of privileged applicants. Applications may only be directed against reviewable acts, that is, against definitive 195 Art 263(2) TFEU; Case C-45/86 Commission v Council (generalized tariff preferences) [EU:C:1987:163] para 3; Case C-370/07 Commission v Council (common Community position in CITES) [EU:C:2009:590] para 16; Joined Cases C-463/10 P and C-475/10 P Deutsche Post and Germany v Commission [EU:C:2011:656] para 36. 196 Case C-166/78 Italy v Council (potato starch) [EU:C:1979:195]. 197 Case C-41/83 Italy v Commission (British Telecom) [EU:C:1985:120].

Applicants and Standing 141 acts having a binding legal effect198 (cf Section 3.1.2. Reviewable Acts), although privileged applicants do not need to show that the legal effect of the contested act affects their position.199 Besides, the time limits (cf Section 3.1.6. Time Limits) and the formal requirements (cf Section 3.1.5. Formal Requirements) are also applicable to actions filed by privileged applicants. Only the central government is a privileged applicant, regions are individual applicants. Regions, provinces, federate states or other territorial subdivisions of EU Member States are not privileged applicants.200 It is constant case law that the term Member State, in the context of Article 263 TFEU, refers only to the central government authorities of the Member States. That term cannot include the governments of regions or other local authorities, irrespective of the powers they may have, without undermining the institutional balance provided for by the Treaty.201 In Região autónoma dos Açores v Council, the Azores region of Portugal argued that a Council regulation in the domain of fishery caused harmful effects on its specific marine environment and encroached upon its legislative powers. It suggested that the Courts apply, by analogy, the solution developed in the Chernobyl case,202 in which the Court of Justice ruled that the Parliament had the standing to bring an action for annulment for the purpose of defending its prerogatives even if, at the time, Article 173 of the EEC Treaty (now Article 263 TFEU) did not list the Parliament.203 However, the Courts rejected this argument, making clear that regions cannot be considered as semi-privileged applicants, which are allowed to bring an action in defence of their prerogatives. Regions are therefore consistently treated as individual applicants, whose standing is governed by Article 263(4) TFEU.204

3.95

Action against Article 7 TEU determinations reserved to the affected Member State. Article 7 TEU foresees measures adopted by the Council or the European Council against Member States risking or found to breach the EU’s fundamental values listed in Article 2 TEU. Article 269 TFEU provides that only the Member State concerned may bring an action against such a measure, creating an exception from the universal standing of privileged applicants.

3.96

Lack of severability can be an obstacle to admissibility when partial annulment is sought. Partial annulment of a Union act is possible only if the elements whose annulment is sought may be severed from the remainder of the act. The requirement of severability is not met where partial annulment of a measure would have the effect of changing its substance.205 Therefore,

3.97

198 Case C-22/70 Commission v Council (‘ERTA’) [EU:C:1971:32] para 42; Case C-316/91 Parliament v C ouncil (Lomé Convention) [EU:C:1994:76] para 8; Joined Cases C-138/03, C-324/03 and C-431/03 Italy v Commission (structural assistance) [EU:C:2005:714] para 32; Case C-370/07 Commission v Council (common Community position in CITES) [EU:C:2009:590] para 42; Joined Cases C-463/10 P and C-475/10 P Deutsche Post and Germany v Commission [EU:C:2011:656] para 36. 199 Case T-233/04 Netherlands v Commission (emissions trading) [EU:T:2008:102] paras 37 et seq. 200 See also K Lenaerts and N Cambien, ‘Regions and the European Court: giving shape to the regional dimension of the Member States’ (2010) European Law Review 609. 201 Order of 1 October 1997 in Case C-180/97 Regione Toscana v Commission [EU:C:1997:451] paras 6 and 8; Case C-452/98 Nederlandse Antillen v Council [EU:C:2001:623] para 50; Case C-417/04 P Regione Siciliana v Commission [EU:C:2006:282] para 21; Order of 6 March 2012 in Case T-453/10 Northern Ireland Department of Agriculture and Rural Development v Commission [EU:T:2012:106] paras 34–38. 202 Case C-70/88 Parliament v Council (Chernobyl) [EU:C:1990:217]. 203 NB: as the Parliament is recognised as a privileged applicant since the Nice Treaty, all case law relating to the Parliament’s standing is outdated. It does, however, keep its relevance as regards semi-privileged applicants (cf para 3.1.4.2), which are in the same situation now as the Parliament was before the Nice Treaty. 204 Order of 26 November 2009 in Case C-444/08 P Região autónoma dos Açores v Council [EU:C:2009:733] paras 28–32. 205 Case C-29/99 Commission v Council (Convention on Nuclear Safety) [EU:C:2002:734] paras 45–46; Case C-239/01 Germany v Commission (EAGGF) [EU:C:2003:514] paras 33–34; Case C-540/03 Parliament v Council (family reunification) [EU:C:2006:429] paras 27–28 and 108.

142 Action for Annulment although privileged applicants have no restriction as regards standing, their application may still be rejected as inadmissible if the partial annulment they seek is impossible because of lack of severability (cf para 3.211). 3.98

Third countries? In Switzerland v Commission, the applicant brought an action for annulment against a Commission decision relating to the application of an international agreement between Switzerland and the EU and of a Council regulation.206 The decision was addressed to Germany. An intervener argued that Switzerland was not a privileged applicant and it was not directly and individually concerned by the decision. The General Court did not examine the standing of Switzerland by applying the Boehringer case law, under which admissibility issues do not need to be decided where the action is anyway dismissed on the substance.207 On appeal, the Court of Justice did not examine Switzerland’s standing either, and it upheld the General Court’s judgment on the substance.208

3.1.4.2. Court of Auditors, ECB, Committee of the Regions 3.99

Semi-privileged applicants. The Court of Auditors, the ECB and the Committee of the Regions are listed in Article 263(3) TFEU as semi-privileged applicants, the Committee of the Regions being added by the Lisbon Treaty. These are applicants who may only bring an action for annulment for the purpose of defending their respective prerogatives.

3.100

Historical case law relating to the Parliament. The initial rules on action for annulment (Article 173 of the EEC Treaty) did not feature semi-privileged applicants. In addition, only Member States, the Commission and the Council were recognised as privileged applicants, and the Parliament, lacking legal personality, could not bring an action for annulment as an individual applicant either. In the Chernobyl case, the Court of Justice held that the Parliament’s prerogatives belonged to the elements of the institutional balance created by the Treaties, thus the Parliament had to have an effective judicial remedy to protect them. Therefore, the Court ruled that the Parliament had the standing to institute an action for annulment insofar as that action sought only to safeguard its prerogatives.209 This judge-made law was inserted into the Treaty with the Maastricht amendment. Later, the Nice Treaty granted the Parliament the status of a privileged applicant, therefore it no longer needs to indicate a prerogative to defend when bringing an action for annulment.

3.101

Defence of prerogatives. An action for annulment brought by a semi-privileged applicant is admissible provided that the applicant only seeks to safeguard its prerogatives and that it is founded only on submissions alleging their infringement.210 The applicant thus has standing to bring an action if, during the adoption of the act, its powers to participate in the decisionmaking or legislative process were ignored or impaired. Such powers or prerogatives include the right of the Court of Auditors to request any document or information necessary to carry out its tasks and to submit observations on specific questions.211 The Committee of the Regions has the

206 Case T-319/05 Switzerland v Commission [EU:T:2010:367]. 207 Case C-23/00 P Council v Boehringer [EU:C:2002:118] para 52; Case T-319/05 Switzerland v Commission [EU:T:2010:367] paras 54–55. 208 Case C-547/10 P Switzerland v Commission [EU:C:2013:139]. 209 Case C-70/88 Parliament v Council (Chernobyl) [EU:C:1990:217] paras 23–27. 210 Case C-360/93 Parliament v Council (EEC–US Agreement on government procurement) [EU:C:1996:84] para 13. 211 Art 287 TFEU.

Applicants and Standing 143 rerogative of being consulted during the ordinary legislative procedure in a number of policy p fields.212 Finally, in specific cases provided for by the Treaties, legislative acts may be adopted only on a recommendation from the ECB,213 while other Treaty articles foresee consultation with it.214 Therefore, the case law predating the Treaty of Nice, where the Parliament acted in defence of its prerogatives, disputing the legal basis chosen by the Council for the adoption of the act (the so-called ‘legal basis cases’, cf para 3.250),215 retains some of its relevance, as it can be applied by analogy to the institutions or bodies which currently have the status of semi-privileged applicants. For instance, some of the Treaty articles foresee the involvement of the Committee of the Regions and the ECB in the decision-making process while others do not. Therefore, these organs are entitled to bring an action for annulment against an act by arguing that it should have been founded – at least partially – on another legal basis (ie Treaty article) granting them more powers. Alleged infringement of prerogatives. Alleging that the author of the act omitted to consult a semi-privileged applicant implies that the latter is seeking a remedy to a perceived infringement of its prerogative and makes the application admissible. The omission to consult the applicant for a second time may also constitute such an infringement if the legislative proposal on which the applicant had the right to comment was substantially modified since the first consultation.216 The perceived omission to consult is normally not the result of imprudence of the author of the act but flows from choosing a legal basis that does not foresee consultation. In fact, when the Parliament was still a semi-privileged applicant in the past, it often brought cases by arguing that a different legal basis should have been chosen for the contested act, which would have given it a more ample participation or a stronger power in the decision-making or legislative process leading up to the adoption of the contested act.217

3.102

Indicating the prerogative and its alleged infringement. In order to make the application admissible, the applicant has to indicate in an appropriate manner the substance of the prerogative to be safeguarded and how that prerogative is allegedly infringed.218 In the Lomé Convention case, the Parliament indicated that, in its view, first, the contested regulation should have been adopted under Article 209 of the EEC Treaty and not under an internal agreement between the Member States and the Council, and secondly, that Article 209 of the EEC Treaty provided for consultation with the Parliament. This indication was held to be sufficient to make the application admissible, even if the Parliament had in fact been optionally consulted, as such optional consultation was not equivalent to the Parliament’s prerogative laid down in the Treaty.219

3.103

212 See, eg the legislative procedure requiring the consultation of the Committee of the Regions in the fields of transport (Art 100 TFEU), employment (Art 148 TFEU), social policy (Art 153 TFEU) etc. 213 Art 289(4) TFEU. 214 See, eg Art 66 TFEU, on the adoption of safeguard measures in the field of free movement of capital, and Art 127 TFEU, providing that the ECB has to be consulted on any proposed Union act in its fields of competence. 215 See, eg Case C-303/94 Parliament v Council (plant protection products) [EU:C:1996:238]; Joined Cases C-164/97 and C-165/97 Parliament v Council (forest protection) [EU:C:1999:99]. 216 Case C-65/90 Parliament v Council (national road haulage) [EU:C:1992:325]. 217 Case C-360/93 Parliament v Council (EEC–US Agreement on government procurement) [EU:C:1996:84]; Case C-259/95 Parliament v Council (home and leisure accidents) [EU:C:1997:454]. The Parliament argued that Council acts should have been based on a Treaty article providing for a cooperation or co-decision instead of the article actually chosen by the Council, providing for no participation of the Parliament. For a more detailed overview of the ‘legal basis cases’ between the Parliament and the Council, see A H Türk, Judicial Review in EU Law (Edward Elgar Publishing, Cheltenham, 2010) 43–45. 218 Case C-316/91 Parliament v Council (Lomé Convention) [EU:C:1994:76] paras 12–13; Case C-303/94 Parliament v Council (plant protection products) [EU:C:1996:238] para 13. 219 Case C-316/91 Parliament v Council (Lomé Convention) [EU:C:1994:76] para 16.

144 Action for Annulment The indication regarding the infringement of the prerogative, necessary for admissibility, does not need to be a proper demonstration, since such demonstration might rather go to the substance of the case. Indeed, in the Lomé Convention case, the Court of Justice dismissed the Parliament’s assertions and ruled that the internal agreement was in fact the correct legal basis for the regulation in question, and thus rejected the application as unfounded. This did not, however, affect the admissibility of the Parliament’s action, since the Parliament properly raised the issue of the alleged infringement of its prerogatives.220 3.104

Only pleas in law concerning the protection of prerogatives are admissible. The condition that the action for annulment should be limited to submissions concerning the infringement of the prerogatives of the semi-privileged applicants is applied strictly and its fulfilment is examined in respect of each plea in law. For instance, in the Parliament v Council (plant protection products) case, the Court of Justice held that the plea in law concerning the alleged insufficient reasoning of the contested Council decision was not admissible, as the applicant did not indicate how such a flaw in the contested decision, assuming it was real, would impair its prerogatives.221

3.1.4.3. Individual Applicants – General Conditions of Admissibility Related to the Applicant (i) Capacity to Bring Proceedings – Legal Personality 3.105

General. A preliminary issue to be decided before the determination of whether the applicant has locus standi (ie quality to bring proceedings) is whether the applicant has the capacity to bring proceedings. If the applicant is not a natural person, it has to be recognised as a legal person by the Courts in order to have such a capacity. The Courts have developed a notion of legal personality which is larger than the one applied in national legal systems and is interpreted by the Courts independently from the latter.

3.106

Legal personality acquired under national law – companies. For the purposes of the application of Article 263(4) TFEU, an applicant is a legal person if it possesses legal personality in accordance with the law governing its constitution. As regards companies in formation, the Court of Justice ruled in Bensider that legal personality must be acquired, by virtue of national law, by the time the application is filed, or at the latest on the day when the legal deadline to initiate an action for annulment expires.222 National law is also decisive in the case of companies established in third countries. In Shanghai Bicycle, registration in the Shanghai provincial commercial register was taken as evidence of the existence of legal personality, in accordance with Chinese legal provisions.223 Likewise, loss of the capacity to bring proceedings due to dissolution is also examined under provisions of national law.224

3.107

Treatment as an independent legal entity by the defendant institution or body is sufficient to show capacity to bring proceedings. The notion of legal personality under EU law goes, however, beyond what are legal persons recognised in national laws, at least as regards entities

220 Case C-316/91 Parliament v Council (Lomé Convention) [EU:C:1994:76] para 42. 221 Case C-303/94 Parliament v Council (plant protection products) [EU:C:1996:238] para 18; see also Case C-156/93 Parliament ν Commission (organic production of agricultural products) [EU:C:1995:238] para 11. 222 Case C-50/84 Bensider v Commission [EU:C:1984:365] paras 7–8. 223 Case T-170/94 Shanghai Bicycle Corporation v Council [EU:T:1997:134] para 28. 224 Case T-136/05 Salvat père & fils and Others v Commission [EU:T:2007:295] paras 25–27.

Applicants and Standing 145 which are not governed by the constitutional law of a Member State (cf para 3.108). Such an applicant is considered to be a legal person for the purposes of the application of Article 263 TFEU if it has been treated as an independent legal entity by the defendant institution or body even if it lacks legal personality under national law. Examples include trade unions representing EU staff which were held to ‘have necessary independence to act as a responsible body in legal matters’ and which were recognised by the EU institutions as negotiating bodies.225 Companies taking part in the administrative procedure by mail correspondence and as interlocutors at hearings are also considered to be treated by the institutions or bodies as independent legal entities and are therefore considered to be legal persons independently of the national law governing their constitution.226 In PKK and KNK, the Court of Justice quashed the General Court’s order that rejected the action brought by the banned Kurdistan Workers’ Party (PKK) as inadmissible. The applicant’s formal dissolution had been announced in 2002, yet a fund-freezing measure was adopted in its respect later in the same year. The Court of Justice held that if the PKK retained an existence to be the subject of a fund-freezing measure after its dissolution, it also had to have, on grounds of consistency and justice, an existence sufficient to contest it.227 On the other hand, in Front Polisario, the Court of Justice considered that the applicant, an organisation operating in Western Sahara, had no standing to bring an action for annulment against the Council decision on the conclusion of a trade agreement with Morocco. The Court pointed out that the effect of the trade agreement did not encompass Western Sahara.228 Subnational entities – capacity to bring proceedings exclusively determined by national law. Where actions are brought by subnational territorial bodies, such as regions or provinces of Member States, the Courts assess whether they have legal personality on the basis of national public law.229 In Landtag Schleswig-Holstein, the General Court examined whether the provincial parliament (Landtag) of the German Land Schleswig Holstein had the capacity to bring an action for annulment. It opted for a strict interpretation of the above case law and considered that EU law cannot trespass on the constitutional independence of the Member States by recognising the legal personality of a national public-law body, thereby conferring rights upon it that it does not have under national constitutional law. Since the Landtag did not have the right to bring proceedings under German constitutional law, the General Court rejected the application as inadmissible. Although the Commission clearly treated the Landtag as an independent legal entity, the General Court made clear that the case law recognising the capacity of such entities to bring proceedings (cf para 3.107) did not concern bodies governed by national constitutional law.230

3.108

(ii) Legal Interest in Bringing Proceedings General. In order to be entitled to bring an action for annulment, a natural or legal person must have an interest in the annulment of the contested measure in all three scenarios of 225 Case C-175/73 Union Syndicale and Others v Council [EU:C:1974:95] paras 11–13; Case C-18/74 Syndicat Général du Personnel v Commission [EU:C:1974:96] paras 7–9. 226 Case T-161/94 Sinochem Heilongjiang v Council [EU:T:1996:101] para 31. 227 Case C-229/05 P PKK and KNK v Council [EU:C:2007:32] paras 114–115. 228 Case C-104/16 P Council v Front Polisario [EU:C:2016:973] paras 21 and 131–133. Pursuant to Art 1 of its constituting document, Front Polisario is ‘a national liberation movement, the fruit of the long resistance of the Sahrawi people against the various forms of foreign occupation’. 229 Case T-214/95 Vlaams Gewest v Commission [EU:T:1998:77] para 28; Case C-15/06 P Regione Siciliana v C ommission [EU:C:2007:183] para 29; Order of 3 April 2008 in Case T-236/06 Landtag Schleswig-Holstein v Commission [EU:T:2008:91] para 26. 230 Order of 3 April 2008 in Case T-236/06 Landtag Schleswig-Holstein v Commission [EU:T:2008:91] paras 26 et seq.

3.109

146 Action for Annulment standing foreseen in Article 263(4) TFEU. The interest in bringing proceedings and the locus standi are distinct conditions for admissibility which must be satisfied by a natural or legal person cumulatively.231 The interest in bringing an action for annulment presupposes that the annulment of the measure is of itself capable of having legal consequences and that the action must be likely, if successful, to procure an advantage for the applicant.232 The interest must be vested and present on the date of filing the application,233 failing which the application will be dismissed as inadmissible (cf Section 5.7.1. Inadmissibility). The interest to act must subsist until the termination of first instance, appeal234 and possibly repeated first instance proceedings.235 If the interest disappears during those proceedings, the Courts will declare that there is no need to adjudicate and dismiss the application without examining its merits236 (cf Section 5.7.2. No Need to Adjudicate). 3.110

Adversely affected by the measure. A measure which gives full satisfaction to the applicant is not, by definition, capable of adversely affecting him. However, the applicant has an interest in bringing proceedings against an only partially favourable measure which does not adequately protect his legal situation.237 In TV 2/Danmark, the Commission adopted a decision finding that the transfer of State resources to the applicant was State aid, compatible with the common market insofar as it compensated the applicant for public services it provided, whereas a minor part of the aid beyond the compensatory amount was considered to be incompatible aid, to be reimbursed to Denmark. The General Court ruled that the applicant had an interest in bringing an action against the entirety of the decision, including the qualification of the measure as State aid, since the classifications of the two parts of the transfer as respectively compatible and incompatible aid were mutually dependent and inseparably linked.238 On the other hand, in Sniace, where the State aid as a whole was considered compatible with the common market, thus the applicant had no reimbursement obligation, it was held that the qualification of the measure as State aid in itself had no adverse effect on the applicant, also because the latter had brought no proof of ongoing legal proceedings against it based on that qualification.239 The Courts look at the precise source of the adverse effect referred to by the applicant. In Commune de Champagne, the General Court found that the legal effect, which the Swiss commune of Champagne sought to eliminate (the reservation of the designation ‘champagne’ for wine from the French region of Champagne), stemmed not from the contested act, but from earlier EU legislation. Therefore, the contested act – foreseeing a transitional period during which the applicants could still market their products under that designation – was held to actually be favourable to them.240 231 Case C-33/14 P Mory and Others v Commission [EU:C:2015:609] para 62. 232 Joined Cases T-480/93 and T-483/93 Antillean Rice Mills and Others v Commission [EU:T:1995:162] paras 59–60; Case C-50/00 P Unión de Pequeños Agricultores v Council [EU:C:2002:462] para 21; Case T-310/00 MCI v Commission [EU:T:2004:275] para 44; Case T-387/04 EnBW Energie Baden-Württemberg v Commission [EU:T:2007:117] para 96; Case C-544/17 P BPC Lux 2 and Others v Commission [EU:C:2018:880] para 28; Case C-248/17 P Bank Tejarat v Council [EU:C:2018:967] para 28. 233 Case C-544/17 P BPC Lux 2 and Others v Commission [EU:C:2018:880] para 29. 234 Case C-362/05 P Wunenburger v Commission [EU:C:2007:322] para 42; Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission [EU:C:2010:512] paras 22–23. 235 Order of 22 September 2011 in Case T-94/05 RENV II Athinaïki Techniki v Commission [EU:T:2011:524]. 236 CJ RoP, Art 149; GC RoP, Art 131. 237 Case T-138/89 NBV and NVB v Commission [EU:T:1992:95] para 32; Case T-354/05 TF1 v Commission [EU:T:2009:66] paras 85–86. 238 Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04 TV 2/Danmark and Others v Commission [EU:T:2008:457] paras 72–74. 239 Case T-141/03 Sniace v Commission [EU:T:2005:129]. See also Case T-212/00 Nuove Industrie Molisane v Commission [EU:T:2002:21]. 240 Order of 3 July 2007 in Case T-212/02 Commune de Champagne and Others v Council and Commission [EU:T:2007:194] para 53.

Applicants and Standing 147 Vested and present interest on the date of filing the application. The interest in bringing an action for annulment must be vested and present, and is evaluated as at the date on which the action is brought.241 By literal interpretation, it follows that an interest emerging or becoming certain during the proceedings before the EU Courts is irrelevant, although the Courts do sometimes seem to take into account developments after the lodging of the application.242 The annulment must in itself generate a beneficial legal consequence for the applicant which may not depend on any uncertain or hypothetical event, whether factual or legal. If the applicant’s interest is purportedly related to a future legal situation, he has to demonstrate that the prejudice to that situation caused by the contested act is already certain.243

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Preventing repetition of unlawful administrative behaviour. The interest in bringing proceedings is maintained if, without the annulment, the applicant is likely to be the subject of the same purportedly unlawful treatment. In the Wunenburger case, the applicant challenged the selection of another official to a post and the rejection of his candidature. He put forward that the preparation of a shortlist by the director general, limiting the appointing authority in its choice, was illegal. Even if the successful candidate had retired during the proceedings before the Courts so that a new selection procedure was started in which the applicant participated, the Courts held that the applicant maintained his interest in the annulment of the contested decisions, since otherwise the same procedural illegality was liable to occur.244

3.112

Interest must exist as regards the annulment of the operative part of a decision. As discussed in the section on reviewable acts above (cf para 3.35), only the operative part of a decision is capable of producing legal effects, while the assessments made in the grounds (recitals) of an act by its author are not in themselves actionable and can be subject to judicial review only to the extent that they constitute the essential basis for the operative part.245 A necessary consequence of this rule is that the applicant must be able to show his interest in the annulment of a decision in respect of its operative part (ie enacting terms). Conversely, pointing out the presence of unfavourable statements among the decision’s grounds (recitals), which nonetheless have no bearing on the operative part, is not instrumental in demonstrating such an interest.246 For instance, the General Court ruled in Pergan Hilfsstoffe that the applicant did not have legal interest in bringing an action for annulment against a Commission decision attributing, in the reasoning of the decision, an infringement of competition rules to the applicant, where there was no such finding in the operative part of the decision.247

3.113

Personal interest. The interest in bringing proceedings must be personal. Accordingly, it is not enough to show such an interest if the applicant merely puts forward that his financial situation

3.114

241 Case T-310/00 MCI v Commission [EU:T:2004:275] para 44; Order of 10 March 2005 in Joined Cases T-228/00, T-229/00, T-242/00, T-243/00, T-245/00 to T-248/00, T-250/00, T-252/00, T-256/00 to T-259/00, T-265/00, T-267/00, T-268/00, T-271/00, T-274/00 to T-276/00, T-281/00, T-287/00 and T-296/00 Gruppo ormeggiatori del porto di Venezia and Others v Commission [EU:T:2005:90] para 23; Case T-136/05 Salvat père & fils and Others v C ommission [EU:T:2007:295] para 34; Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04 TV 2/Danmark and Others v Commission [EU:T:2008:457] para 67. 242 Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04 TV 2/Danmark and Others v Commission [EU:T:2008:457] paras 80–81. 243 Case T-141/03 Sniace v Commission [EU:T:2005:129] paras 28 et seq. 244 Case C-362/05 P Wunenburger v Commission [EU:C:2007:322] paras 54–60, confirming the judgment in Case T-370/03 Wunenburger v Commission [EU:T:2005:271]. While this is a staff case, this point on interest to act is also relevant for actions for annulment. 245 Case C-164/02 Netherlands v Commission (aid for the processing of dredging silt) [EU:C:2004:54] para 21. 246 In this connection, see Case T-387/04 EnBW Energie Baden-Württemberg v Commission [EU:T:2007:117] para 97. 247 Case T-474/04 Pergan Hilfsstoffe für industrielle Prozesse v Commission [EU:T:2007:306] para 74.

148 Action for Annulment is adversely affected by an EU measure concerning a company controlled by him. In such a case, the owner must show that he has a legal interest in bringing proceedings separate from that of the controlled undertaking, failing which his only remedy lies in the exercise of his rights as a member of the undertaking which itself has a right of action.248 The participation in the administrative procedure on behalf of the controlled undertaking does not suffice to show a legal interest in bringing proceedings.249 3.115

Capacity to benefit from the annulment may be lost: disqualification, liquidation, quitting sector. The factual or legal situation of individual applicants may change in such a way that the annulment of the contested act can no longer procure an advantage for them. In Forum 187, the General Court examined a Commission decision laying down a transitional period for terminating a State aid scheme declared incompatible with the common market. It held that where the undertaking was no longer eligible to benefit from the State aid scheme in accordance with the national legal provisions, the annulment of the decision could no longer procure an advantage for it.250 In Socratec, the applicant put forward that it suffered a competitive disadvantage as a result of a Commission decision authorising its competitors’ merger. The General Court observed, however, that the applicant was liquidated after the filing of the application, meaning that without any business activity it could no longer benefit from the potential annulment of the contested decision.251 Conversely, where the applicant can demonstrate that the initiation of its liquidation proceedings and the ceasing of its economic activities was the consequence of the damage caused by the contested act (for instance, the distortion of competition caused by State aid authorised by the Commission), it may establish its interest to act.252

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Sum (re)paid by others – interest to act is preserved if a contribution can be claimed from the applicant. The case law developed nuanced solutions for situations where companies are jointly and severally obliged to make payments and one of them has already paid the required sum. In Operator ARP, the General Court rejected the plea of inadmissibility of the Commission that was based on the fact that the State aid declared unlawful by the contested decision was repaid by an undertaking other than the applicant. The Court highlighted that, according to Polish law, that other undertaking could assert a right of action to obtain a contribution from the applicant during a 10-year period.253 In Mindo, the applicant and Alliance One were jointly and severally obliged to pay a fine for participating in a cartel. Alliance One had paid the fine in full before Mindo filed its application, while Mindo was placed in a pre-bankruptcy procedure after that filing. The General Court indicated that Alliance One had not claimed a contribution from Mindo for five years and was not even entered on the list of Mindo’s creditors in the context of the pre-bankruptcy agreement. Thus, it ruled that there was no need to adjudicate.254 On appeal, the Court of Justice set aside the first instance judgment, on grounds of insufficient reasoning. In particular, the Court of Justice pointed out that the General Court merely stated that

248 Case T-597/97 Euromin v Council [EU:T:2000:157] para 50; Order of 27 March 2012 in Case T-261/11 European Goldfields v Commission [EU:T:2012:157] para 21. 249 Order of 27 March 2012 in Case T-261/11 European Goldfields v Commission [EU:T:2012:157] para 26. See also Case T-86/96 Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission [EU:T:1999:25] paras 47 and 50; Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04 TV 2/Danmark and Others v Commission [EU:T:2008:457] paras 137 and 139–146. 250 Case T-189/08 Forum 187 v Commission [EU:T:2010:99] paras 79 et seq. 251 Case T-269/03 Socratec v Commission [EU:T:2009:211] paras 40–41. 252 Case C-33/14 P Mory and Others v Commission [EU:C:2015:609] para 77. 253 Case T-291/06 Operator ARP v Commission [EU:T:2009:235]. 254 Case T-19/06 Mindo v Commission (Italian raw tobacco cartel) [EU:T:2011:561] paras 61–88.

Applicants and Standing 149 lliance One had not claimed a contribution from Mindo for five years, whereas, under Italian A law, the limitation period during which Alliance One could claim a contribution was 10 years.255 The Court of Justice referred the case back to the General Court, but the case was eventually discontinued and removed from the register.256 Measure lapsed. Where a challenged act is no longer in force, or has been withdrawn by the institution, the action for annulment brought against that act will normally be considered devoid of purpose,257 which means that there is no need to adjudicate. There are, however, notable exceptions. It is possible that the measure produced legal effects in the past, adversely affecting the applicant, which have not been removed by the withdrawal of the act – if the withdrawal only had a prospective effect258 (cf para 3.72). Similarly, the applicant has the interest to challenge an act replaced by a new measure with similar content where only the ex tunc annulment of the earlier act is capable of eliminating its past adverse effects.259 In the case of expiry of the contested act (cf para 3.74), it is possible that the indirect effects of the contested act continue to have an adverse impact on the applicant through national measures even after that expiry. This was the case in Enviro Tech, where the applicants retained their interest in bringing proceedings in spite of the deletion of the contested EU law provision.260 In general, when examining the interest to bring an action for annulment under Article 263 TFEU, the Courts have to bear in mind that only an annulment judgment has the effect of eliminating the contested measure retroactively from the legal order as if it never existed.261 By contrast, the finding that the act is unlawful in the context of an action for damages is not sufficient to protect the applicant from national enforcement measures which are based on that unlawful act. Contrary to a judgment annulling a measure, such a finding, in principle, only has a prospective effect limited to the action for damages in question and does not retroactively eliminate the legal basis for those enforcement measures.262

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Irreversible implementation of the act. The interest in bringing annulment proceedings subsists, in principle, even if the contested measure has already been implemented or irreversibly executed. In Österreichische Postsparkasse, the General Court examined Commission decisions to transmit to FPÖ, an Austrian political party, the non-confidential versions of the statements of objections relating to the Austrian Banks cartel. It held that the transmission of the documents to FPÖ after the filing of actions for annulment against the decisions did not render those actions devoid of purpose. Indeed, an annulment judgment in those actions could have prevented a repetition by the Commission of the practice complained of (cf para 3.112) and could have rendered unlawful the use of the statements of objections improperly communicated to FPÖ.263 Public procurement

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255 Case C-652/11 P Mindo v Commission (Italian raw tobacco cartel) [EU:C:2013:229] paras 38 et seq. 256 Order of 5 September 2013 in Case T-19/06 RENV Mindo v Commission (Italian raw tobacco cartel) [EU:T:2013:485]. 257 Case T-239/94 EISA v Commission [EU:T:1997:158] para 34; Order of 8 November 2011 in Case T-25/10 BASF Schweiz and BASF Lampertheim v Commission [EU:T:2011:642]. 258 See Order of 10 March 2005 in Case T-184/01 IMS Health v Commission [EU:T:2005:95] paras 47 et seq. The General Court found that there were no past effects of the decision withdrawn with an ex nunc effect by the Commission which could adversely affect the applicant. 259 Case T-256/07 People’s Mojahedin Organization of Iran v Council [EU:T:2008:461] para 48. 260 Case T-291/04 Enviro Tech Europe and Enviro Tech International v Commission [EU:T:2011:760] paras 84–89. 261 Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council [EU:T:2006:384] para 35; Case T-291/04 Enviro Tech Europe and Enviro Tech International v Commission [EU:T:2011:760] para 88. 262 Case T-178/98 Fresh Marine v Commission [EU:T:2000:240] para 45; Case T-291/04 Enviro Tech Europe and Enviro Tech International v Commission [EU:T:2011:760] para 89. 263 Joined Cases T-213/01 and T-214/01 Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v Commission [EU:T:2006:151] paras 53–55. See also Case C-53/85 Akzo Chemie v Commission [EU:C:1986:256] para 21. On the prevention of repeating an unlawful practice, see Case C-362/05 P Wunenburger v Commission [EU:C:2007:322] paras 54–60.

150 Action for Annulment cases also present good examples of irreversible implementation of decisions. By the time of the delivery of the judgment determining the legality of a decision in which an institution or body has rejected an applicant’s offer and/or awarded the tender to another tenderer, the successful tenderer has normally already signed or even executed the public contract. This means that even if the decision is annulled, reopening the tender procedure and awarding the contract to the applicant is in most cases impossible. The General Court nonetheless ruled in European Dynamics v EIB that in such a situation the unsuccessful tenderer maintains an interest in the annulment of such decisions, since pecuniary compensation made possible by the annulment is suitable to restore it to its original position (cf para 3.334) and, in any event, the annulment prompts the authority to make suitable amendments to illegal tendering procedures in the future.264 3.119

Hypothetical versus ongoing legal proceedings against the applicant. Reference to the possibility of bringing legal proceedings against the applicant on the basis of the contested act is not usually enough to show legal interest in bringing proceedings if that possibility is merely hypothetical, while ongoing proceedings against the applicant whose subject matter is connected to the action for annulment may well demonstrate a vested and present interest in the annulment.265

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Interest to act present if the annulment helps the applicant obtain damages. In general, the Courts recognise that an interest in bringing proceedings under Article 263 TFEU exists if the annulment can provide a basis for the applicant to bring an action for damages before the General Court against the EU, or before national courts against national authorities or private parties.266 This principle must nonetheless be reconciled with the rule that the interest in bringing an action for annulment must be vested and present, and cannot depend on an uncertain or hypothetical future event (cf para 3.111). The Court of Justice ruled in this regard that ‘The possibility of an action for damages suffices to justify such an interest in bringing proceedings, insofar as that interest is not hypothetical’.267 As the Cañas case suggests, the applicant has to show that the annulment is a plausible basis for claiming damages from the entities which have directly caused them. The applicant was a professional tennis player against whom the Association of Tennis Professionals (ATP) adopted measures because of doping. The Commission rejected the applicant’s complaint, which was based inter alia on a purported abuse of dominant position by the ATP. The General Court examined the question of whether the applicant could maintain his interest in challenging the Commission’s decision after his retirement from professional sport. It found that the applicant did not intend to claim damages from the Commission, the only organ to which the contested decision could be attributed. Furthermore, the annulment of the Commission’s decision in itself could not have given a legal basis for suing the ATP for damages. Consequently, it held that the applicant did not maintain his interest to act and, therefore, there

264 Case T-461/08 Evropaïki Dynamiki v European Investment Bank [EU:T:2011:494] paras 62–68. 265 Case T-141/03 Sniace v Commission [EU:T:2005:129] paras 28 et seq; Case T-136/05 Salvat père & fils and Others v Commission [EU:T:2007:295] paras 41 et seq. As regards the liability for a parent company for repayment of illegal State aid, see Order of 27 March 2012 in Case T-261/11 European Goldfields v Commission [EU:T:2012:157] para 28. Legal proceedings initiated against the applicant after lodging the application before the General Court were taken into account in Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04 TV 2/Danmark and Others v Commission [EU:T:2008:457] paras 80–81. 266 Case C-76/79 Könecke Fleischwarenfabrik v Commission [EU:C:1980:68] para 9; Joined Cases C-68/94 and C-30/95 France and Others v Commission [EU:C:1998:148] para 74; Case C-269/12 P Cañas v Commission [EU:C:2013:415] para 17. 267 Case C-544/17 P BPC Lux 2 and Others v Commission [EU:C:2018:880] para 43. See also Case C-33/14 P Mory and Others v Commission [EU:C:2015:609] para 79.

Applicants and Standing 151 was no need to adjudicate.268 In Mory, the applicants had already instituted an action for damages before a national court prior to lodging the action for annulment before the General Court. The Court of Justice ruled, on appeal, that if the annulment sought by the applicants could, in itself, increase the likelihood that the action for damages brought before the national court is successful, that increase of likelihood is relevant for deciding if the action for annulment procures a benefit to the applicant. Therefore, the Court of Justice considered that the General Court erred in law when it refused to recognise that the applicants had an interest to act and set aside the first instance order.269 Interest to act present if the annulment helps the applicant obtain the annulment of a national decision. The interest in bringing an action for annulment may also be present where the annulment procures benefits to the applicant in national court proceedings other than damages actions.270 In BPC Lux, the EU Courts examined an action for annulment brought against a Commission decision in which the Commission declared compatible with the common market a Portuguese State aid measure, which also included putting Banco Espírito Santo (BES) into resolution. The Portuguese measure entailed the creation of a bridge bank, to which the sound business activities of BES were transferred, and a bad bank, which kept other residual assets of BES. The bad bank had the prospect of being wound down in accordance with the commitments that Portugal gave to the Commission in the State aid procedure. The applicants held bonds in BES that remained in the bad bank. They brought proceedings before Portuguese courts seeking the annulment of the decision to put BES into resolution. In the subsequent action for annulment brought under Article 263 TFEU against the Commission decision, the General Court concluded that the applicants had no interest to act, because the action for annulment and the actions before the Portuguese courts did not have the same subject matter.271 On appeal, the Court of Justice overturned the first instance order. It held that there were inextricable links between the contested decision and the decision to put BES into resolution. The General Court was thus not permitted to conclude, without substituting itself for the Portuguese courts for the purposes of the assessment of the merits of the action brought against the decision to put BES into resolution, that, because of the different subject matter, a possible annulment of the contested decision could not in any way affect the Portuguese courts’ assessment. The Court of Justice ruled that it was not for the EU Courts, for the purposes of determining an interest in bringing proceedings before them, to assess the likelihood that an action brought before national courts under national law was well founded and, therefore, to substitute themselves for those courts in making such an assessment. For establishing the interest to act, it is both necessary, and sufficient that, by its outcome, the action for annulment brought before the EU Courts would be capable of benefiting the party which brought it.272

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Interest to act present if the annulment re-establishes good reputation. It is not only the financial consequences of the possible annulment of the contested act that may procure a benefit to the applicant; the non-material aspects may also be relevant. For instance, a person or entity whose

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268 Order of 26 March 2012 in Case T-508/09 Cañas v Commission [EU:T:2012:152] paras 57–60, confirmed on appeal in Case C-269/12 P Cañas v Commission [EU:C:2013:415]. See also Case T-269/03 Socratec v Commission [EU:T:2009:211] paras 44–45. 269 Case C-33/14 P Mory and Others v Commission [EU:C:2015:609] paras 76, 77 and 85. 270 Case C-33/14 P Mory and Others v Commission [EU:C:2015:609] para 81; Case C-544/17 P BPC Lux 2 and Others v Commission [EU:C:2018:880] para 44. 271 Order of 19 July 2017 in Case T-812/14 BPC Lux 2 and Others v Commission [EU:T:2017:560] paras 34–36. 272 Case C-544/17 P BPC Lux 2 and Others v Commission [EU:C:2018:880] paras 55–59.

152 Action for Annulment name has been included on the list of persons and entities whose assets are to be frozen continues to have at least a non-material interest in having that listing annulled even after the removal of its name from that list or after the suspension of the freezing of its assets. The interest to seek annulment is preserved even after such elimination of the financial consequences of the contested act, since that interest is attached also to the recognition, by the EU Courts, that the person or entity should have never been included on such a list, in view of the consequences for its reputation.273 3.123

Lack of interest is an absolute bar to proceedings which can be revealed by the Courts. The lack of the applicant’s legal interest in the annulment is an absolute bar to proceedings, thus the EU Courts may reveal it of their own motion, without any submission from the parties in this respect.274 If the Courts consider that the applicant had no legal interest at the time of lodging the application, they qualify the action as inadmissible and, in most cases, reject the application by reasoned order, after giving the parties the opportunity to express their views on the issue.275 This does not normally imply an oral hearing but, rather, a written question and/or invitation to submit documents addressed to the parties,276 giving the applicant an opportunity to demonstrate his interest in bringing proceedings (cf para 3.126). The Courts may also find of their own motion at any stage of the procedure – even after the hearing – that the applicant has lost his interest. In such cases, the Courts rule that the action has become devoid of purpose and that there is no longer any need to adjudicate (cf Section 5.7.2. No Need to Adjudicate), which also means that the application is dismissed without an examination of its merits. The same procedure applies as in the case of inadmissibility – the Courts may decide so in a reasoned order after giving the parties the opportunity to express their views.277

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Lack of interest may be revealed by the defendant at any stage of the procedure. If the defendant considers that the applicant has no legal interest, it may file a preliminary objection by separate document, a plea of inadmissibility (cf Section 5.7.1. Inadmissibility). This might enhance procedural economy as the defendant does not need to reply at this stage to the applicant’s arguments going to the substance, but may limit itself to the issue of legal interest in bringing proceedings.278 If the objection is justified, the Courts will normally dismiss the application by reasoned order. At times, the Courts reserve their position on admissibility and decide to join that matter to the substance of the case and thus invite the defendant to submit a full defence. The defendant may also informally signal in its defence or rejoinder that he has doubts as to the existence of the applicant’s legal interest. No stage of the procedure is too late to put forward arguments in this respect. It can be done at the hearing or even afterwards, since the lack of legal interest is an absolute bar to proceedings, which the Courts may consider at any time of their own motion.279

3.125

Legal interest is examined in respect of each head of claim and plea in law. The Courts may rule that the success of some of the applicant’s heads of claims or pleas in law can benefit him, while others cannot. In Dredging International, the applicant challenged both the decision rejecting its tender at a preliminary stage and the decision awarding the contract to another company in the award phase. The General Court first examined the arguments of the applicant put forward 273 Case C-248/17 P Bank Tejarat v Council [EU:C:2018:967] paras 29–30 and the case law cited. 274 Case T-141/03 Sniace v Commission [EU:T:2005:129] para 22; Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04 TV 2/Danmark and Others v Commission [EU:T:2008:457] para 62. 275 CJ RoP, Art 150; GC RoP, Art 129. 276 Such questions and requests of documents are measures of organisation of procedure prescribed by the Courts under CJ RoP, Art 61(1) and 62(1) and GC RoP, Art 89(3). 277 CJ RoP, Art 149; GC RoP, Art 131. 278 CJ RoP, Art 151(1); GC RoP, Art 130(1). 279 Case T-291/06 Operator ARP v Commission [EU:T:2009:235] para 26.

Applicants and Standing 153 as regards the illegality of the rejection decision, which proved to be unfounded. Subsequently, it considered that without the illegality of the rejection decision being shown, the applicants had no interest in challenging the award decision. Therefore, the head of claim requesting the annulment of the award decision was dismissed as inadmissible.280 A similar approach was taken in European Dynamics v ECB as regards various pleas in law put forward by the applicant.281 Burden of proof. The burden of proof is on the applicant to satisfy the Court that he has an interest in bringing an action for annulment.282 However, the applicant does not necessarily need to present a detailed argumentation in the application in this respect, since if there are doubts as regards his legal interest, he will be given an opportunity to state his position on that particular issue. Where the General Court entertains doubts regarding the presence of an interest to act, or the defendant questions the applicant’s interest in the defence or in a plea of inadmissibility, the General Court will normally put written questions to the applicant on that issue as a measure of organisation of procedure, in response to which he can substantiate his interest in bringing proceedings283 (cf para 3.123). Where the defendant questions the interest to act in the defence, and a second exchange of pleadings is authorised without the General Court issuing any written questions, the applicant can adduce fresh evidence in the reply regarding his interest to act, as evidence of rebuttal.284 Where the defendant raises a formal plea of inadmissibility or formally proposes that the case be closed on the ground that there is no need to adjudicate, the applicant has the same right to submit fresh evidence in his observation on that plea or on that proposal.285

3.126

Impact on costs. If the Courts state that the interest of the applicant did not exist at the moment of the introduction of the application, the applicant will be ordered to bear the costs,286 as it is understood that there was no reason to bring the proceedings in the first place. Likewise, if the capacity of the applicant to benefit from the annulment disappears during the Court procedure, it will be ordered to bear the costs. However, if the disappearance of the interest during the Court procedure results from the withdrawal, amendment or replacement of the contested act by the institution’s or body’s own motion or as a result of giving effect to judgments delivered by the Courts, the defendant institution or body will be ordered to bear the costs.287 It is therefore not unusual that, even if it is common ground between the parties that the applicant has no interest in bringing proceedings, the parties disagree as regards the exact reason for that lack of interest and/or the moment of its disappearance (ie before or after the filing of the application). In such cases, although there is no legal obligation, the Courts provide reasons out of courtesy as to the considerations underlying the ruling on the costs.288

3.127

280 Case T-8/09 Dredging International and Ondernemingen Jan de Nul v EMSA [EU:T:2011:461]. 281 Order of 2 July 2009 in Case T-279/06 Evropaïki Dynamiki v ECB [EU:T:2009:241] paras 99 et seq. 282 Case C-682/13 P Andechser Molkerei Scheitz v Commission [EU:C:2015:356] paras 27–28; Case C-544/17 P BPC Lux 2 and Others v Commission [EU:C:2018:880] paras 33–34. 283 See the references to this stage of the procedure in Case C-544/17 P BPC Lux 2 and Others v Commission [EU:C:2018:880] paras 35–36. 284 Case T-189/08 Forum 187 v Commission [EU:T:2010:99] paras 64–66. 285 GC RoP, Art 85(2)–(3) allows the submission of fresh evidence after the lodging of the application if the delay in adducing the evidence is justified. In the situations dicussed above, the justification is that, at the time of lodging the application, the applicant was unaware that his interest in bringing proceedings would be put in question. 286 See, eg Case T-141/03 Sniace v Commission [EU:T:2005:129]; Case T-474/04 Pergan Hilfsstoffe für industrielle Prozesse v Commission [EU:T:2007:306]. 287 Order of 8 November 2011 in Case T-25/10 BASF Schweiz and BASF Lampertheim v Commission [EU:T:2011:642] para 20. 288 See, eg Order of 31 January 2008 in Case T-151/06 Aluminium Silicon Mill Products v Commission [EU:T:2008:26].

154 Action for Annulment

3.1.4.4. Individual Applicants – Overview of Standing 3.128

General – the three variants of Article 263(4) TFEU. Article 263(4) TFEU provides three distinct sets of conditions under which individual applicants (‘any natural or legal person’) have the standing to bring an action for annulment against EU acts (the ‘three variants’ of Article 263(4) TFEU). First, individual applicants may challenge acts addressed to them (cf Subsection 3.1.4.5). Secondly, they are entitled to challenge acts not addressed to them, but which are nonetheless of direct and individual concern to them (cf Subsection 3.1.4.6). Thirdly, they may bring an action for annulment against regulatory acts which are of direct concern to them and do not entail implementing measures (cf Subsection 3.1.4.7).

3.129

Rationale and the old Article 230(4) TEC. Individual applicants are deemed to pursue their own particular interests when challenging EU acts. Therefore, their locus standi was construed to be more limited than that of privileged or semi-privileged applicants, who are regarded to be acting in the public interest.289 Before the amendment brought by the Lisbon Treaty, Article 230(4) TEC provided that Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.

This system aimed at striking a balance between two conflicting requirements. On the one hand, the draftsmen of the Treaty did not intend to enable individual applicants to challenge any EU act regardless of their interest and concern, since allowing for actio popularis could have brought about a massive influx of cases overburdening the Court of Justice.290 On the other hand, the Community institutions had to be prevented from being in a position, merely by choosing the form of a regulation or by addressing a decision to a third party, to exclude an application by an individual against a decision that concerns him directly and individually.291 3.130

Replacement of ‘decision’ and ‘regulation’ by the term ‘act’ in the Lisbon Treaty. The text of Article 230(4) TEC, under which actions for annulment could be brought against ‘a decision which, although [taken] in the form of a regulation’ that was of direct and individual concern to the applicant, often required the requalification of a regulation as a decision. The Courts decided this issue not on the basis of the formal denomination of the contested act, but on the basis of its material content and impact from the point of view of the applicant. The decisive factor was whether the act was of general application, in which case it was assimilated to a regulation, while individual acts were assimilated to decisions, even if they were taken in the form of a regulation. A measure is of general application if it applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged generally and in the abstract.292 It is important to note that the Lisbon Treaty replaced the reference to decisions and regulations in

289 D P Domenicucci and I Taccani, ‘Articolo 263 TFUE’ (in: Codice dell’Unione Europea operativo ed. by C C Gialdino, Simone, Napoli, 2012) 1865. 290 Opinion of AG Mayras in Case C-43/72 Merkur Außenhandel v Commission [EU:C:1973:74]. 291 Joined Cases C-789/79 and C-790/79 Calpak and Società Emiliana Lavorazione Frutta v Commission [EU:C:1980:159] para 7; Order of the General Court of 30 November 2009 in Case T-313/08 Veromar di Tudisco Alfio & Salvatore v Commission [EU:T:2009:477] para 37; Order of 6 September 2011 in Case T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council (Inuit I) [EU:T:2011:419] para 64. See also D P Domenicucci and I Taccani, ‘Articolo 263 TFUE’ (in: Codice dell’Unione Europea operativo ed. by C C Gialdino, Simone, Napoli, 2012) 1866. 292 Order of the General Court of 30 November 2009 in Case T-313/08 Veromar di Tudisco Alfio & Salvatore v Commission [EU:T:2009:477] para 38; Order of 6 September 2011 in Case T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council (Inuit I) [EU:T:2011:419] para 63.

Applicants and Standing 155 Article 263(4) TFEU by the term ‘act’. The qualification of the act as a measure of general application or an individual act is therefore no longer necessary for deciding whether the contested act is, in reality, and from the point of view of the applicant, a regulation or a decision. On the other hand, the question whether the act is of individual scope or a measure of general application may still be very relevant: only acts of general application may be considered to be regulatory acts (cf para 3.180).293 Introduction of ‘regulatory acts’ and the third variant by the Lisbon Treaty. In order to relax the conditions of standing of individual applicants and to ensure proper possibilities of judicial review, the Lisbon Treaty introduced the concept of ‘regulatory acts’ and the third variant of Article 263(4). Under the new provisions, regulatory acts can be challenged before the General Court by an individual applicant without demonstrating individual concern, provided that the applicant is directly concerned and the measure does not ‘entail’ implementing measures. The purpose of this extension of standing was to cover a large part of EU measures of general application against which neither direct (no individual concern) nor incidental (no national or EU implementing measure to challenge) review was available under the TEC (cf para 3.175 et seq). The Courts later specified that regulatory acts are non-legislative acts of general application294 (cf para 3.178).

3.131

Rules regarding standing have to be applied as in force at the moment of bringing the action. Under settled case law, the question of the admissibility of an application must be resolved on the basis of the rules in force at the date on which it was submitted, in accordance with the maxim tempus regit actum. Therefore, as was ruled in Norilsk and Etimine, the standing of applicants who had brought actions of annulment before 1 December 2009, the date of entry into force of the Lisbon Treaty, was governed by Article 230 TEC alone.295

3.132

3.1.4.5. Individual Applicants Challenging Acts Addressed to them – The First Variant Only general conditions of admissibility must be fulfilled. The first variant foreseen in Article 263(4) TFEU concerns the situation of an individual applicant initiating an action for annulment against an act addressed to him. In order to be admissible, the action must be directed against a reviewable act (cf Section 3.1.2. Reviewable Acts), brought within the applicable time limit (cf Section 3.1.6. Time Limits), and must comply with the formal requirements (cf Section 3.1.5. Formal Requirements). Furthermore, there are admissibility conditions related to the applicant: he has to show his capacity to bring proceedings (cf para 3.105 et seq) and his legal interest in bringing proceedings296 (cf para 3.109 et seq).

293 Order of 6 September 2011 in Case T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council (Inuit I) [EU:T:2011:419] paras 41–42, confirmed on appeal in Case C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council [EU:C:2013:625] paras 58–61; Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] paras 22–37. 294 Case C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council [EU:C:2013:625] para 60; Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] para 23. 295 Case T-532/08 Norilsk Nickel Harjavalta and Umicore v Commission [EU:T:2010:353] paras 68–75; Case T-539/08 Etimine and Etiproducts v Commission [EU:T:2010:354] paras 74–81. 296 Case T-387/04 EnBW Energie Baden-Württemberg v Commission [EU:T:2007:117] para 96; Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04 TV 2/Danmark and Others v Commission [EU:T:2008:457] para 63.

3.133

156 Action for Annulment 3.134

The act must be formally addressed to the applicant. Only those situations are covered by the first variant foreseen by Article 263(4) TFEU where the applicant is literally and stricto sensu the addressee of the contested act, ie named as an addressee of a formally adopted decision, addressee of a letter, email or oral communication emanating from the services of an institution or body or the subject of the latter’s physical act (cf para 3.27–3.30). On the other hand, if, for instance, the applicant is the sole beneficiary of the State aid being the subject matter of the contested decision formally addressed to the Member State granting the aid, which even forwarded that decision to the applicant, the latter’s standing will still be governed not by the first, but by the second variant of Article 263(4) TFEU, which relates to acts not addressed to the applicant that are of direct or individual concern to him.297

3.135

The right to bring an action for annulment must be personally exercised, except in the case of succession. Since the Courts do not have the right to alter the contested act by replacing an addressee by another person, the action for annulment must be brought personally by the addressee. For instance, the owner of a company is not entitled to bring an action for annulment on behalf of the latter298 (cf para 3.114), nor is a sister company allowed to substitute the applicant during the procedure.299 If succession occurs during the Court proceedings, or if a company is renamed, it has the right to continue the proceedings brought by the predecessor to whom the contested act had been addressed, provided that the predecessor no longer exists.300

3.1.4.6. Individual Applicants Challenging Acts not Addressed to them which are of Direct and Individual Concern – The Second Variant (i) General 3.136

Direct and individual concern must be shown, general conditions must be fulfilled. The second variant foreseen in Article 263(4) TFEU concerns individual applicants challenging the act of an institution or body which are not addressed to them. Acts foreseen in this scenario can be, for example, formal decisions addressed to someone else, directives addressed to the Member States,301 regulations not addressed to anyone or informally adopted acts addressed to someone else (which, if they have binding content, are usually considered to be decisions if a qualification is needed). In such a situation, the applicant has to demonstrate that he is directly and individually concerned by the act, apart from the general conditions on admissibility (cf para 3.133).

3.137

Regulatory acts – the second or the third variant of Article 263(4)? Regulatory acts are non-legislative acts of general application (cf para 3.178). When they entail implementing measures, the locus standi of an individual applicant challenging such an act is governed by the second variant of Article 263(4), that is, direct and individual concern must be demonstrated. When they do not entail implementing measures, the standing is governed by the third variant (cf para 3.174 et seq), which means that only direct concern must be shown.

297 Case C-188/92 TWD Textilwerke Deggendorf [EU:C:1994:90] para 14. 298 Order of 27 March 2012 in Case T-261/11 European Goldfields v Commission [EU:T:2012:157] para 26. 299 Order of 21 May 2010 in Case T-441/08 ICO Services v Parliament and Council [EU:T:2010:217] para 26. 300 Case C-92/82 Gutmann v Commission [EU:C:1983:286] para 2; Case C-294/83 Les Verts v Parliament [EU:C:1986:166] paras 13–18; Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich and Others v Commission (Lombard cartel) [EU:T:2006:396] paras 70–74. 301 For an example of individual applicants challenging a directive, see Order of 7 September 2010 in Case T-532/08 Norilsk Nickel Harjavalta and Umicore v Commission [EU:T:2010:353].

Applicants and Standing 157 Burden of proof and procedural issues. The burden of proof is on the applicant to satisfy the General Court that he is directly and individually concerned by the contested act. Insufficient proof may be a real obstacle to standing even if it transpires from the facts that the applicant may well have the right to bring an action for annulment.302 The defendant institution or body may raise a formal plea of inadmissibility based on lack of standing in a separate document or put forward arguments in this respect in its defence or later (since the lack of standing is an absolute bar to proceedings). However, as in the case of interest to act, the applicant does not necessarily need to present a detailed argument in the application in this respect. If there are doubts as regards his direct and individual concern, he will be given an opportunity to state his position on that particular issue. If a formal plea of inadmissibility is raised, the applicant may reply in separate observations. If the defendant puts forward arguments in this respect in the defence, the applicant will be allowed to react in the reply, or in separate observations, if the General Court decides to rule first on the admissibility and therefore does not invite the applicant to submit a reply. In any case, the applicant will have the right to submit fresh evidence as evidence of rebuttal303 (cf para 3.126).

3.138

Lack of standing is an absolute bar to proceedings that can be considered by the Courts ex officio. The EU Courts may consider the lack of direct or individual concern of their own motion, as it is an absolute bar to proceedings.304 It is nonetheless very rare that the defendant institution or body does not raise doubts related to standing if its presence can be reasonably questioned. If the Courts consider that the applicant has no standing, they may qualify the action inadmissible and reject the application by reasoned order, after giving the parties the opportunity to express their views on the issue.305

3.139

(ii) Direct Concern Concept. According to settled case law, showing that an act not addressed to the applicant is nonetheless of direct concern to him requires the fulfilment of two cumulative conditions. First, the contested measure must directly affect the legal situation of the individual. Secondly, that measure must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from the EU rules alone, without the application of other intermediate rules.306 Direct concern is assessed as at the moment of filing the action. Consequently, the lack of direct concern cannot be remedied by the fact that the implementing authority having discretion opts, during the Court procedure, for a measure which, together with the contested act, affects the rights of the applicant. Direct concern

302 Case T-292/02 Confservizi v Commission [EU:T:2009:188] para 55 (cf para 3.201). 303 By analogy, see Case T-189/08 Forum 187 v Commission [EU:T:2010:99] paras 64–66. 304 Case C-176/06 P Stadtwerke Schwäbisch Hall and Others v Commission [EU:C:2007:730] para 18; Case C-362/06 P Sahlstedt and Others v Commission [EU:C:2009:243] paras 22–23. 305 CJ RoP, Art 150; GC RoP, Art 129. See, eg Order of 6 September 2011 in Case T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council (Inuit I) [EU:T:2011:419]. 306 Order of 19 July 2017 in Case C-666/16 P Lysoform and Ecolab v ECHA [EU:C:2017:569] para 42; Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] para 42. See also Case C-404/96 P Glencore Grain v Commission [EU:C:1998:196] para 41; Case C-486/01 P National Front v Parliament [EU:C:2004:394] para 34; Case C-15/06 P Regione Siciliana v Commission [EU:C:2007:183] para 31; Joined Cases C-445/07 P and C-455/07 P Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission [EU:C:2009:529] para 45; Case T-442/08 CISAC v Commission [EU:T:2013:188] para 66.

3.140

158 Action for Annulment cannot thus be ‘acquired’ during the Court proceedings.307 Lastly, it must be emphasised that direct concern need only be shown in respect of the provision whose annulment is sought by the applicant, not as regards the entire contested act. 3.141

Rationale – where national authorities implement. One of the initial functions of the concept of ‘direct concern’ was to divide the respective competences of the EU and national courts. In many cases, Union acts need to be implemented by national authorities. If the latter enjoy considerable discretion as regards the content of the implementing measures,308 or some national rules contribute to the definition of their content, the precise scope and impact of the EU act becomes clear only at the stage of its national implementation. Clearly, it is not reasonable to burden the EU Courts with actions for annulment against EU acts that might adversely affect the rights of a natural or legal person only if implemented in a given way by national authorities. Indeed, it is possible that in the end, at the stage of national implementation, no harm materialises. Instead, it is sensible to limit the individual applicants’ possibility to seek review to actions before national courts, brought against those national implementing measures that produce harmful effects. If the Union act, as implemented by the national authorities, does in the end have a negative impact on the legal situation of a natural or legal person, the illegality of the underlying EU act may be pleaded before the national court, in an action filed against the national authority that has adopted the implementing measure. The national court then may or must request a preliminary ruling on the validity of the EU act (cf Chapter 3.8. Preliminary Rulings on Validity of EU Measures).

3.142

Rationale – extension to situations where the EU implements. A similar logic applies to situations where implementation of a Union act is ensured by the Commission or the Council (Article 291 TFEU). If the Commission or the Council applies intermediate rules or enjoys considerable discretion as regards the definition of the implementing measures, it is sensible to limit the possibility of filing an action for annulment against those implementing measures, since it is often only possible to decide at the stage of implementation whether the rights of the applicant are affected. In that case, a plea of illegality of the implemented EU act can be raised in the application directed against the implementing measure309 (cf Chapter 3.7. Plea of Illegality).

3.143

First condition of direct concern: the act must affect the applicant’s legal situation. The legal situation of the applicant is affected by an EU act not addressed to him if, as applied in the relevant factual and legislative context, it alters or restricts his rights or imposes new obligations on him.310 An illustration is provided by the Infront WM case. Infront held the Europe-wide exclusive television broadcasting rights to the FIFA World Cup finals. The UK notified to the Commission a list of events ‘of national interest’, including the FIFA finals, in respect of which, under the relevant directive, the UK was entitled to ensure that no particular operator on its territory could have the exclusive broadcasting rights. The Commission, in its decision addressed 307 Order of 21 May 2010 in Case T-441/08 ICO Services v Parliament and Council [EU:T:2010:217] para 60. See also Case C-50/84 Bensider v Commission [EU:C:1984:365] para 8; Order of 15 February 2005 in Case T-229/02 PKK and KNK v Council [EU:T:2005:48] para 30. 308 NB: throughout this section the term ‘implementing measure’ will be used to denote all legal instruments designed or used to implement EU acts. Implementing measures therefore include national or EU acts of general or individual scope. On the other hand, the term ‘implementing act’ will only be used in its sense defined in Art 291 TFEU, denoting implementing measures of general scope adopted by the Commission or, exceptionally, by the Council. 309 Case T-526/10 Inuit Tapiriit Kanatami and Others v Commission (Inuit II) [EU:T:2013:215]. 310 Theoretically, the legal position of the applicant could also be affected by measures extending his rights and restricting his obligations. Apart from the fact that natural and legal persons are not expected to challenge such acts, the lack of legal interest to bring an action for annulment would be an obstacle to admissibility (cf paras 3.109 et seq).

Applicants and Standing 159 to the UK, approved the list. Infront brought an action for annulment against that Commission decision. The Court of Justice held that the Commission decision and the UK measures together had modified the circumstances in which British operators could acquire the broadcasting rights from Infront. Therefore, by the contested decision, Infront’s rights were subjected to new restrictions which rendered their exercise more difficult, meaning that Infront’s legal situation was directly affected by that decision.311 Identifying the natural or legal person whose legal situation is affected. The Courts carefully examine the exact identity of the natural or legal person whose situation is altered. In the Regione Siciliana cases, the region of Sicily was designated as the authority responsible for the implementation of European Regional Development Fund (ERDF) projects. The Court of Justice ruled, however, that this did not mean that Regione Siciliana itself was entitled to financial assistance, the funds being transferred to undertakings operating on its territory. Therefore, as the Court ruled, the Commission decisions cutting the financial assistance did not directly affect the legal situation of Regione Siciliana, and were of no direct concern to it.312 The mere fact that this regional entity was named in the contested act had no bearing on the finding of whether it was directly concerned.313

3.144

Market position or competitive situation affected – conditions of direct concern have become more stringent. The criterion that the contested act has to ‘affect the legal situation of the individual’ was somewhat loosely interpreted in the past to include scenarios where, as a result of the contested act, the commercial environment of the applicant changed significantly, in spite of the fact that it was the economic, rather than the legal, situation of the applicant that was at stake. For instance, it was ruled several times that competitors of the merging parties were directly affected by Commission decisions approving mergers, since such decisions brought about an immediate change in the state of the markets they were operating in.314 While this case law still seems to stand as regards merger control, it should be noted that the Court of Justice has tightened significantly the conditions of direct concern in some recent judgments. In Anicav315 (cf para 3.198), T & L Sugars,316 Marquis Energy317 (cf para 3.146) and Montessori318 (cf para 3.147), all delivered in the context of regulatory acts, the Court of Justice considered that the General Court’s more liberal approach regarding the demonstration of direct concern, mostly based on the alteration of the applicant’s commercial environment by the contested act, was flawed. The Court of Justice emphasised that to establish direct concern, the legal situation of the applicant had to be affected. In Montessori, the Court of Justice bridged the effect on the competitive situation of the applicant with the effect on its legal situation (as required by the direct concern test) by considering that the applicant had a right to operate on an undistorted market, and that this right was affected

3.145

311 Case C-125/06 P Commission v Infront WM [EU:C:2008:159] para 52. 312 Case C-417/04 P Regione Siciliana v Commission [EU:C:2006:282] paras 29–30; Case C-15/06 P Regione Siciliana v Commission [EU:C:2007:183] para 32. Confirmed by Joined Cases C-445/07 P and C-455/07 P Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission [EU:C:2009:529] para 47. 313 Joined Cases C-445/07 P and C-455/07 P Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission [EU:C:2009:529]. 314 Case T-3/93 Air France v Commission [EU:T:1994:36] para 80; Case T-114/02 BaByliss v Commission [EU:T:2003:100] para 89; Case T-177/04 easyJet v Commission [EU:T:2006:187] para 32. 315 Joined Cases C-455/13 P, C-457/13 P and C-460/13 P Confederazione Cooperative Italiane and Others v Anicav and Others [EU:C:2015:616] para 49. 316 Case C-456/13 P T & L Sugars and Sidul Açúcares v Commission [EU:C:2015:284] para 37. 317 Case C-466/16 P Council v Marquis Energy [EU:C:2019:156] paras 56–57. 318 Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] para 46.

160 Action for Annulment by the State aid granted to its competitors. However, it only recognised such a right in the field of State aid319 (cf para 3.147), meaning that, in other fields (eg common agricultural policy), the condition of direct concern may be more difficult to satisfy (cf para 3.198). 3.146

Example: Marquis Energy. In Marquis Energy, the applicant brought an action for annulment against a Council regulation imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States.320 Marquis Energy and four other companies were selected in the administrative procedure to be part of the sample of exporting producers (hence the applicant was individually concerned). It did not directly export bioethanol to the EU. Nonetheless, unrelated traders and blenders exported a significant volume of bioethanol produced by Marquis Energy on a regular basis to the EU during the investigation period. The General Court held that Marquis Energy was directly concerned by the anti-dumping duty imposed by the regulation at issue, on the ground that it was a producer of the product, and the challenged definitive anti-dumping regulation obliged the Member States’ customs authorities to levy the duty without leaving them any discretion. The Court of Justice set aside the first instance judgment. It ruled that, while the regulation at issue might have indeed placed a US bioethanol producer such as Marquis Energy at a competitive disadvantage, such a fact, if proven, did not allow the Courts to find that that company’s legal position was affected by the regulation and that the regulation was of direct concern to it.321 The Court of Justice also considered that other elements of the demonstration provided by Marquis Energy regarding direct concern – namely, that it had been identified and sampled as an exporting producer and that anti-dumping duties would apply to its future exports – were insufficient to show direct concern. As a result, it ruled that the first instance application was inadmissible because of lacking direct concern.322

3.147

Example: Montessori. In Montessori, the applicant brought an action for annulment against a Commission decision in which the Commission considered that an Italian municipal real estate tax exemption was unlawful State aid, but waived the recovery obligation. The tax exemption benefited non-commercial entities carrying out, on their property, inter alia educational, accommodation and cultural activities even if they were of a commercial nature. Montessori is a private educational establishment which was not covered by the tax exemption. The General Court considered that the first condition of direct concern, ie that the contested measure must directly affect the legal situation of the individual, was satisfied, because the services offered by Montessori were similar to those offered by the beneficiaries of the aid and, consequently, Montessori ‘might be in a competitive relationship’ with the beneficiaries.323 The Court of Justice held that this analysis was vitiated by an error of law. It pointed out that the direct concern of the applicant could not be deduced from the mere potential existence of a competitive relationship between the applicant and the beneficiaries of aid. It added that Given that the condition of direct concern requires the contested measure to produce effects directly on the applicant’s legal situation, the EU judicature must ascertain whether the applicant has adequately

319 It would be very logical to extend the ‘right to operate on an undistorted market’ to the field of merger control, which would imply that competitors of the merging parties could rather easily show the effect on their legal situation for the purposes of the direct concern test. This would allow the settled case law on the standing of competitors to bring an action for annulment against decisions authorising mergers to be maintained: see Case T-3/93 Air France v Commission [EU:T:1994:36] para 80; Case T-114/02 BaByliss v Commission [EU:T:2003:100] para 89; Case T-177/04 easyJet v Commission [EU:T:2006:187] para 32. 320 Case T-277/13 Marquis Energy v Council [EU:T:2016:343]. 321 Case C-466/16 P Council v Marquis Energy [EU:C:2019:156] paras 56–57. 322 Case C-466/16 P Council v Marquis Energy [EU:C:2019:156] paras 60–62. 323 Case T-220/13 Scuola Elementare Maria Montessori v Commission [EU:T:2016:484] para 42.

Applicants and Standing 161 explained the reasons why the Commission’s decision is liable to place him in an unfavourable competitive position and thus to produce effects on his legal situation.324

The Court of Justice, however, found other reasons to consider that the applicant was directly concerned. It highlighted that Montessori submitted evidence before the General Court proving that its establishments were situated in the immediate vicinity of ecclesiastical or religious entities carrying on similar activities. These entities were thus active in the same geographical and services market as Montessori, and could benefit from the aid, while Montessori could not. Thus, Montessori adequately explained the reasons why the decision at issue was liable to place it in an unfavourable competitive position. Furthermore, the Court of Justice recognised that Montessori had the ‘right to operate on an undistorted market’, which allowed the Court to conclude that the contested decision directly affected Montessori’s legal situation, and that, therefore, the contested measure was of direct concern.325 The Court of Justice nonetheless specified that while such a right – pertaining to the legal situation of the applicant – existed in the field of State aid control (which had as its object the protection of competition), it did not exist in some other domains, for instance, when measures relating to the common agricultural policy were challenged326 (cf para 3.198). Overlap with ‘interest to act’. Since direct concern is only present if the contested act affects the legal situation of the applicant, as assessed against the relevant legislative and factual background of the case, its concept overlaps with the notion of ‘interest to act’ (cf para 3.109),327 which requires the examination of whether the annulment of the contested act is of itself capable of having legal consequences and of procuring an advantage for the applicant. Clearly, where the contested act does not affect the legal situation of the applicant (no direct concern), it is unlikely that its annulment would procure an advantage for the applicant. Direct concern and interest to act are both examined as at the moment of the filing of the application. Ceteris paribus, where the applicant challenges an act not addressed to him, the General Court has a tendency to examine direct concern328 (since its lack is easier to establish), while in the case of acts addressed to the applicant, where no direct concern is required, the General Court applies the test relating to interest to act. The difference between the first condition of direct concern and interest to act has, however, been highlighted eg in Anicav329 (cf para 3.198).

3.148

Overlap with ‘reviewable acts’. According to settled case law, without affecting rights or establishing definitive, compelling obligations, the act is not open to challenge (cf para 3.17 et seq). This condition of admissibility overlaps with direct concern.330 It is clear that if the contested act does not affect rights or create obligations in general, it cannot alter the particular legal position of the applicant either. Although, dogmatically, examining the presence of a

3.149

324 Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] paras 46–47. 325 Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] para 50. 326 Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] paras 51–52. 327 Case C-248/12 P Northern Ireland Department of Agriculture and Rural Development v Commission [EU:C:2014:137] para 33 and the case law cited. 328 See, eg some grounds in Order of 21 May 2010 in Case T-441/08 ICO Services v Parliament and Council [EU:T:2010:217] para 59, in particular the reference to the various possible outcomes of the selection procedure, which might have also fitted an analysis as regards the presence of an interest to act. 329 Joined Cases C-455/13 P, C-457/13 P and C-460/13 P Confederazione Cooperative Italiane and Others v Anicav and Others [EU:C:2015:616] paras 49–55. 330 Case C-248/12 P Northern Ireland Department of Agriculture and Rural Development v Commission [EU:C:2014:137] para 33 and the case law cited.

162 Action for Annulment r eviewable act should come first, the defendant may in some cases raise a plea of inadmissibility based on missing direct concern. This may happen if demonstrating the lack of any effect on the particular legal position of the applicant is simpler than showing a total absence of legal effects. For the same reason, the General Court may also skip the examination of whether the act is reviewable and, rather, examine the presence of direct concern.331 Defendants are nonetheless likely to raise the non-reviewable nature of the act as well, especially if there is case law to that effect. 3.150

Second condition of direct concern: the effect on the applicant’s legal situation must not depend on the discretion of an implementing authority. The second condition of direct concern is that the contested measure must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from the EU rules alone without the application of other intermediate rules.332 This condition is also fulfilled when the contested act does not require any (further) implementing measures.333

3.151

Discretion held by Member States as regards implementation precludes direct concern. In many cases, Member States are in charge of giving effect to EU acts (see Article 291(1) TFEU) by adopting national implementing measures. Discretion held by national authorities is usually an obstacle to establishing the presence of direct concern. Member States may also retain a considerable level of discretionary powers as regards the implementation of EU acts even if the Commission plays a key role in some aspects of that implementation. The Bot Elektrownia case provides an illustration of such a situation. Polish power plants brought an action for annulment against a Commission decision on the Polish national allocation plan (NAP) of greenhouse gas emission allowances. The directive on the EU emission trading scheme334 grants the Commission an important power as regards implementation, as it may reject the NAP as a whole or in part. In the contested decision, the Commission concluded that Poland had to reduce the total quantity of allowances provided for by the NAP. The General Court ruled that, despite the role played by the Commission, the number of allowances granted to each applicant depended on the decision of the national authorities. Therefore, the legal situation of the applicants was not directly affected by the Commission decision; rather, it was affected by the measures to be adopted by Poland.335 As regards challenges brought against directives, the discretion enjoyed by Member

331 See, eg Order of 21 September 2011 in Case T-346/10 Borax Europe v ECHA [EU:T:2011:510] paras 22–38: the contested decision might not have been a reviewable act at all, yet the application was rejected because of the lack of direct concern. Considerations related to procedural economy may also play a role. For instance, there is no point in the General Court raising the issue of absence of a reviewable act of its own motion, and asking the parties to express their views on that, if the defendant argued that direct concern was missing and the applicant has already replied to that plea. 332 Order of 19 July 2017 in Case C-666/16 P Lysoform and Ecolab v ECHA [EU:C:2017:569] para 42; Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] para 42. See also Case C-404/96 P Glencore Grain v Commission [EU:C:1998:196] para 41; Case C-486/01 P National Front v Parliament [EU:C:2004:394] para 34; Case C-15/06 P Regione Siciliana v Commission [EU:C:2007:183] para 31; Joined Cases C-445/07 P and C-455/07 P Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission [EU:C:2009:529] para 45; Case T-442/08 CISAC v Commission [EU:T:2013:188] para 66. 333 This formulation, referring to the lack of need for ‘(further) implementing measures’, is preferred in this section, as it reminds the reader of the possibility that the contested act may already be another EU act’s implementing measure, adopted by the Commission or the Council. 334 Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32). 335 Order of 20 October 2008 in Case T-208/07 BOT Elektrownia Bełchatów and Others v Commission [EU:T:2008:450] paras 31–33.

Applicants and Standing 163 States as to their transposition and implementation normally implies that a directive is of no direct concern to a natural or legal person. In Salamander, the General Court nonetheless held that, in specific circumstances, directives may leave no discretion to the Member States as regards certain elements of their implementation, as was the case with the contested directive prohibiting the advertising of tobacco products throughout the EU. However, the General Court went on to say that, in any event, since a directive cannot of itself impose obligations on an individual and may therefore not be relied on as such against him, it cannot directly affect his legal situation (cf para 3.143 on the first condition of direct concern).336 Direct concern present if implementation by national authorities is purely automatic. Direct concern is present if the Member States in charge of implementing the contested act have no discretion whatsoever as to whether and how to give effect to the contested act. For example, definitive anti-dumping regulations specify the products and the countries of origin to which they apply, and also set the rate of the anti-dumping duties. The customs authorities of the Member States have no choice but to levy those duties in respect of all product batches originating in the country or countries mentioned in those regulations. Implementation is therefore purely automatic.337 Likewise, as a rule, recovery of unlawful State aid is also a purely automatic implementing measure to be adopted by national authorities. Commission decisions declaring State aid incompatible with the common market and ordering repayment are therefore of direct concern to beneficiaries who have the obligation of reimbursement.338

3.152

Direct concern is present if there is no discretion as regards end result. When a national implementing measure is needed, Member States might have the possibility of choosing from several options to give effect to the contested act. However, this does not necessarily mean that the Member States have a genuine discretion as regards implementation. For instance, the General Court ruled in Infront WM that, since the end result was clearly defined by the contested act (a decision addressed to the UK) and by the applicable EU legislative background (an EU directive), the Member State did not enjoy real discretion even if it could choose from various modalities of implementation. Therefore, Infront was directly concerned by the contested act.339 Another example is Deutsche Post, where the Commission argued that Deutsche Post, the beneficiary of State aid, was not directly concerned by an information injunction addressed to Germany by the Commission, since Germany had discretion to determine whether and how to turn to Deutsche Post to obtain the requested information. The Court of Justice dismissed this reasoning by ruling that Deutsche Post, as the holder of that information, would anyway be obliged to act on the information injunction in the end. It also held that the definitive and exhaustive content of the information requested was apparent from the contested information injunction itself. Therefore, Germany had no discretion in defining the content of the request for information it had to pass on to Deutsche Post.340

3.153

The purely theoretical possibility that national authorities do not give effect to EU measure does not remove direct concern. As a rule, even if the national authorities enjoy discretion as regards implementation, including the end result, direct concern of individual applicants is still

3.154

336 Joined Cases T-172/98, T-175/98 to T-177/98 Salamander and Others v Parliament and Council [EU:T:2000:168] paras 22 and 54. See also Order of 10 September 2002 in Case T-223/01 Japan Tobacco et JT International v Parliament and Council [EU:T:2002:205] para 50. 337 Case T-80/97 Starway v Council [EU:T:2000:216] para 62. 338 Joined Cases T-254/00, T-270/00 and T-277/00 Hotel Cipriani and Others v Commission [EU:T:2008:537] para 69. 339 Case T-33/01 Infront WM v Commission [EU:T:2005:461]. 340 Joined Cases C-463/10 P and C-475/10 P Deutsche Post and Germany v Commission [EU:C:2011:656] paras 66–70.

164 Action for Annulment present if it is clear from the circumstances that those authorities will surely give effect to the challenged EU act in a way that affects the applicant’s legal situation. In Bock, the Member State’s information addressed to the applicant indicating its intention to implement the contested act in respect of the applicant was held relevant, especially since the Member State had an interest in doing so.341 In Piraiki-Patraiki, the Court of Justice examined a Commission decision addressed to France authorising it to impose a quota system on imports of Greek cotton yarns. The Commission argued that the decision was of no direct concern to the applicants, which were exporters of Greek cotton yarns into France, given that the French authorities had the discretion to decide whether to adopt concrete measures to cap import volumes. The Court, however, pointed out that, even before the decision, France had applied import restrictions and that the decision came in reply to a French request which sought authorisation for an even stricter import regime than the one finally agreed on by the Commission. In those circumstances, the possibility of France deciding not to make use of the authorisation to cap imports was entirely theoretical.342 While this case law has been applied in other cases since,343 a more solid demonstration as regards the foreseeable national conduct might be required where, unlike in Bock and Piraiki-Patraiki, the act is contrary to the interest of the Member State in charge of implementation. In Ente per le Ville Vesuviane, the applicant was a consortium comprising the Italian State and several local entities set up to protect historical Vesuvian villas. In the contested decision, the Commission withdrew the ERDF financial assistance granted to Italy which had been received by Ente. While the contested decision expressly allowed Italy not to recover that sum from Ente (by supposedly substituting Italian national budget resources to the withdrawn ERDF funding), Italy formally stated that it had the intention to recover the sum. The General Court accepted this as proof that there was only a purely theoretical possibility for Italy not to give effect to the contested decision. Its judgment was, however, quashed by the Court of Justice. The latter ruled that it was not possible to derive from the legally non-binding pronouncement by the Italian authorities of their intention to recover the assistance from Ente that the latter was directly concerned by the contested act, since it could not be ruled out that special circumstances might lead the Italian State, as one of Ente’s shareholders, to forebear from claiming the repayment.344 3.155

Where the EU implements its own acts. By virtue of Article 291 TFEU, where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission or, in some specific cases,345 on the Council. The ‘implementing acts’, adopted by the Commission or by the Council under Article 291 TFEU, are implementing measures of general scope, and can be identified by the word ‘implementing’ in their title. Apart from ‘implementing acts’, the EU institutions or bodies, and in particular the Commission and the EU agencies wielding executive powers, may also adopt various measures of general or individual scope, usually in the form of decisions, whose purpose and/or effect is the implementation of other EU acts.

3.156

Direct concern test is the same for national and EU implementing measures. When EU implementing measures are challenged, the General Court applies the same test relating to direct concern as in the case of implementing measures adopted by national authorities. In ICO Services, the applicant brought an action for annulment against a decision adopted jointly by 341 Case C-62/70 Bock v Commission [EU:C:1971:108] paras 6–8. 342 Case C-11/82 Piraiki-Patraiki and Others v Commission [EU:C:1985:18] paras 8–9. 343 See, eg Case C-386/96 P Dreyfus v Commission [EU:C:1998:193] para 44. 344 Joined Cases C-445/07 P and C-455/07 P Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission [EU:C:2009:529] para 60. 345 These specific cases are foreseen in Arts 24 and 26 TEU.

Applicants and Standing 165 the Parliament and the Council on the selection and authorisation of systems providing mobile satellite services. The implementation of this decision was entrusted partly to the Commission (selection of the satellite system operators) and partly to the Member States (authorisation of the selected operators to use the radio spectrum and the national ground facilities). ICO Services, an incumbent service provider, had previously been given an exemption from the requirement to obtain a licence in the UK to use the 2 GHz frequency band of the electromagnetic spectrum. The General Court ruled that the Commission enjoyed a margin of discretion during the selection procedure, since it had to assess the credibility of candidates and the viability of the proposed mobile satellite systems. Likewise, the Member States could freely decide which frequency band to allocate to particular service providers. Therefore, the applicant did not demonstrate that, at the end of the two-tier implementing process, its rights would necessarily be affected by the contested decision, such an effect depending on the discretion of both the Commission and the national authorities, as well as on the application of a set of national provisions and intermediate EU rules not contained in the contested decision. Consequently, the application was rejected as inadmissible on the ground of missing direct concern.346 Where no (further) implementing measure is needed. Commission decisions adopted in its executive capacity often do not require any further measure to take full effect and to alter the legal situation of natural or legal persons (they may themselves be implementing measures of other EU acts). As the General Court ruled in Air France and later in easyJet, such is the case where the Commission approves a merger, which can then be instantly put into effect by the merging parties. As a result, all companies operating on the relevant markets have to face an imminent change in the state of those markets, meaning that the competitors of the merging parties are directly concerned by such decisions347 (addressed solely to the merging parties). In Microban, the applicants, producing and selling triclosan, sought the annulment of a Commission decision, addressed to the Member States, concerning the non-inclusion of triclosan in the Union list of additives which may be used in the manufacture of certain consumer goods. The General Court held that the Commission had adopted the act in the exercise of its implementing powers and no national implementing measure was needed for the decision to exert its legal effects. Given that those legal effects consisted in a ban on marketing triclosan, the applicants were directly concerned by the decision.348 Regulations may also contain provisions which do not require any further implementing measure to take full effect vis-à-vis the applicant. In Roquette frères, the applicant was held to be directly concerned by a provision setting out the method for calculating its production quota, account also being taken of the annex of that regulation, which had determined the precise tonnage that the applicant, named in the annex, had been allowed to produce.349

3.157

(iii) Individual Concern Changes brought by the Lisbon Treaty. The Lisbon Treaty simplified the text of Article 263(4) TFEU by referring to ‘acts’ not addressed to the applicant which are ‘of direct and individual concern’, replacing the wording of Article 230 TEC, which required the demonstration of the

346 Order of 21 May 2010 in Case T-441/08 ICO Services v Parliament and Council [EU:T:2010:217] paras 59–60. 347 Case T-3/93 Air France v Commission [EU:T:1994:36] para 80; Case T-114/02 BaByliss v Commission [EU:T:2003:100] para 89; Case T-177/04 easyJet v Commission [EU:T:2006:187] para 32. 348 Case T-262/10 Microban International and Microban (Europe) v Commission [EU:T:2011:623] paras 28–39. 349 Case C-138/79 Roquette Frères v Council [EU:C:1980:249] paras 15–16.

3.158

166 Action for Annulment presence of a ‘decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern’ to the applicant. As a consequence, the General Court no longer has to examine if some provisions of a regulation constitute in reality a decision as regards the applicant.350 3.159

Individual concern is assessed as at the moment of the application’s filing. The question whether a natural or legal person is individually concerned by the contested act is assessed on the date on which the proceedings are brought and is determined only by the contested act. This means that if, at a later stage of the procedure before the Courts, the factor which individualised the applicant at the moment of the adoption of the contested act disappears, it does not have any bearing on individual concern. For example, although the usually decisive factor as regards the individual concern of beneficiaries of State aid is whether they need to reimburse the aid declared illegal by the contested Commission decision, the individual concern does not disappear where it emerges, after the lodging of the application, that the applicant would not be required to reimburse the aid.351 This contrasts with the appraisal of legal interest, which must be kept throughout the procedure before the Courts, as its disappearance entails that the Courts reject the application by considering that there is no need to adjudicate (cf para 3.109).

3.160

Acts not addressed to the applicant. Acts not addressed to individual applicants comprise formal decisions addressed to others, atypical or non-formal decisions addressed to others or to no one, directives addressed to the Member States or to no one, and regulations not addressed to anyone. Commission regulations which are delegated acts or implementing acts adopted under Articles 290 and 291 TFEU certainly belong to this category. Although the General Court has recognised that these regulations are regulatory acts under Article 263(4) TFEU, individual concern has to be shown if such an act entails implementing measures to be taken by national or EU authorities. This is because the requirement of individual concern is only waived by the Lisbon Treaty in the case of a ‘regulatory act which is of direct concern to [individual applicants] and does not entail implementing measures’ (cf para 3.137).

3.161

The Plaumann formula. Notwithstanding the changes brought by the Lisbon Treaty,352 the Plaumann formula, known as the cornerstone of the examination of individual concern, continues to apply. Under this test, natural or legal persons who are not addressees of a measure can claim to be individually concerned only if they are affected by the measure in question by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee.353 The Plaumann formula applies both to acts of individual scope and to normative acts (ie acts of general application), but requires the presence of ‘individualising factors’. 350 See also M Pechstein, EU-Prozessrecht (Mohr Siebeck, Tübingen, 2011) 233. This approach was already being followed by the Court even before the entry into force of the Lisbon Treaty: see, eg Order of 17 February 2009 in Case C-483/07 P Galileo Lebensmittel v Commission [EU:C:2009:95] paras 29–30. 351 Joined Cases C-71/09 P, C-73/09 P and C-76/09 P Comitato «Venezia vuole vivere» e.a. v Commission [EU:C:2011:368] para 56; see also Case T-221/10 Iberdrola v Commission [EU:T:2012:112] para 40. 352 Opinion of AG Kokott in C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council [EU:C:2013:21] para 90. 353 Case C-25/62 Plaumann v Commission [EU:C:1963:17] para 107; Case C-50/00 P Unión de Pequeños Agricultores v Council [EU:C:2002:462] para 36; Case C-263/02 P Commission v Jégo-Quéré [EU:C:2004:210] para 45. Order of 26 November 2009 in Case C-444/08 P Região autónoma dos Açores v Council [EU:C:2009:733] para 36; Order of 7 September 2010 in Case T-532/08 Norilsk Nickel Harjavalta and Umicore v Commission [EU:T:2010:353] para 97; Case T-221/10 Iberdrola v Commission [EU:T:2012:112] para 23; Case C-244/16 P Industrias Químicas del Vallés v Commission [EU:C:2018:177] para 87; Case C-384/16 P European Union Copper Task Force v Commission [EU:C:2018:176] para 93.

Applicants and Standing 167 Individual concern may be present if the applicant belongs to a limited class of traders. In application of the Plaumann formula, if an act (or some of its provisions) of an institution or a body affects a group of persons who were identified or identifiable when it was adopted by reason of criteria specific to the members of that group, those persons may be individually concerned by that act inasmuch as they form part of a limited class of economic operators,354 which is also a closed class insofar as it cannot be extended after the adoption of the act.355 Examples include the Piraiki-Patraiki case, in which the Court of Justice examined the admissibility of an action brought against a Commission decision addressed to France authorising it to impose, for a limited period, a quota system on imports of Greek cotton yarns. The Court held that the undertakings which were parties to contracts which had been concluded before the adoption of the decision and which had to be performed during the period at issue were individually concerned by the decision as members of a limited class of traders identified or identifiable by the Commission by reason of those contracts. In contrast, those applicants – also importing Greek cotton yarns into France – which could not show that they had contracts in place before the adoption of the contested decision were not held to be individually concerned,356 arguably because they belonged to an open class of operators to which any prospective importer could be added (cf para 3.163). In Stichting Woonpunt, the Court of Justice examined the admissibility of an action brought against a Commission decision declaring a Dutch State aid measure compatible with Article 106(2) TFEU, under commitments given by the Netherlands that implied a change in the aid measure. That aid measure consisted in a scheme for financing housing corporations (‘wocos’), which were defined in a royal decree. Some of the housing corporations brought an action for annulment against the decision. The General Court considered that the status of wocos was granted on the basis of objective criteria which could be satisfied by an indeterminate number of operators as potential beneficiaries of the aid measure, thus the wocos did not belong to a limited class of traders and were not individually concerned. Therefore, it dismissed the action as inadmissible.357 The Court of Justice set aside the first instance order and ruled that the appellants were individually concerned by the contested decision. It highlighted that, since the status of wocos was granted through a system of approval by royal decree, their number and identity was precisely determined at the time when the contested decision was adopted. Furthermore, the contested decision had the effect of amending the date on which the new housing law entered into force and also changed, to the detriment of the appellants, the aid scheme from which the approved wocos (among them the appellants) had hitherto benefited. Consequently, the Court ruled that the appellants belonged to a closed circle of operators, a fact which individually distinguished them in relation to the contested decision.358

3.162

Belonging to an open class of traders is insufficient to show individual concern. In the absence of other individualising factors, the applicant is not individually concerned by the contested act if he is merely a member of an open class of operators affected by that act. Such is the case if the contested act applies to the applicant (and to the other traders in that open class) by virtue of an objective legal or factual situation defined by the measure in question, even if it is possible to determine more or less precisely the number, or even the identity, of the persons to whom

3.163

354 Joined Cases C-182/03 and C-217/03 Belgium and Forum 187 v Commission [EU:C:2006:416] para 60; Case T-33/01 Infront WM v Commission [EU:T:2005:461] para 71; Case C-132/12 P Stichting Woonpunt and Others v Commission [EU:C:2014:100] para 59. 355 Case C-152/88 Sofrimport v Commission [EU:C:1990:259] para 11; Joined Cases C-182/03 and C-217/03 Belgium and Forum 187 v Commission [EU:C:2006:416] para 63; Case T-221/10 Iberdrola v Commission [EU:T:2012:112] para 41. 356 Case C-11/82 Piraiki-Patraiki and Others v Commission [EU:C:1985:18] paras 17–18 and 31. 357 Order of 16 December 2011 in Case T-203/10 Stichting Woonpunt and Others v Commission [EU:T:2011:766]. 358 Case C-132/12 P Stichting Woonpunt and Others v Commission [EU:C:2014:100] paras 60–62.

168 Action for Annulment a measure applies.359 This is because, by fulfilling the conditions of application of a measure of general application, anyone can be concerned by it. The mere fact that the number of persons affected by the act is limited is irrelevant: in Spijker, the Court of Justice held that the sole individual affected by the measure applied was not individually concerned, since the measure applied to an open group.360 Examples for applicants belonging to an open class of operators include those applicants in Piraiki-Patraiki which could not demonstrate that they had contracts already in place before the adoption of the decision (cf para 3.162).361 Another example is Sahlstedt, where the applicants challenged a Commission decision establishing a list of sites belonging to special flora and fauna conservation areas. The applicants were landowners whose properties were covered by the sites listed in the decision and, as a consequence, were subjected to obligations to avoid the deterioration of natural habitats. On appeal, the Court of Justice nonetheless held that the contested decision was of concern to the applicants (appellants before the Court of Justice) only insofar as they had rights in the lands covered by some of the sites, that is to say, by virtue of an objective legal or factual situation defined by the measure in question and not in accordance with criteria specific to the category of landowners. The Court concluded that the applicants were not individually concerned.362 3.164

Individualising factors. It is important to note that the concept of open and closed classes does not always give a straight solution, and seemingly similar situations are sometimes treated differently depending on the field concerned.363 Over time, however, the Courts have identified a set of individualising factors that are applicable across several or all sectors (cf para 3.165 et seq). The presence of an individualising factor usually implies that the applicant belongs to a closed class of economic operators – although in some cases the Courts based their judgments on the combination of several individualising factors, without specifying whether one of them would have been enough to show individual concern. Beside those individualising factors, there is field-specific case law regarding individualising factors in the areas where the issue of individual concern often needs to be tackled by the Courts, such as State aid (decisions are always addressed to the Member States, not to the companies concerned), anti-dumping (regulations usually affect identifiable companies) etc.364 In the following paragraphs, the most commonly used individualising factors will be presented.

3.165

Participation in the administrative procedure individualises the applicant if he is a negotiator or enjoys procedural guarantees. According to settled case law, an applicant may be individually concerned by reason of its significant role in the procedure leading to the adoption of the contested act. First, the Courts recognise the individual concern of associations or other entities representing sector interests if they are in the position of a negotiator365 (cf para 3.203 et seq).

359 Case C-451/98 Antillean Rice Mills v Council [EU:C:2001:622] para 52; Case T-292/02 Confservizi v Commission [EU:T:2009:188] para 53; Case T-221/10 Iberdrola v Commission [EU:T:2012:112] para 31. 360 Case C-231/82 Spijker Kwasten v Commission [EU:C:1983:220] paras 9–10. 361 Case C-11/82 Piraiki-Patraiki and Others v Commission [EU:C:1985:18] paras 17–18. 362 Case C-362/06 P Sahlstedt and Others v Commission [EU:C:2009:243] paras 31–33. 363 See, eg Case T-279/11 T & L Sugars and Sidul Açúcares v Commission [EU:T:2013:299] paras 81 et seq, where the General Court first stated that the applicants belonged to a limited class of operators, but then established the lack of individual concern on the basis of missing individualising factors. For a more extensive presentation of the doctrine on open and closed classes, and the perceived incoherence of the case law, see A H Türk, Judicial Review in EU Law (Edward Elgar Publishing, Cheltenham, 2010) 69–74. 364 The detailed case law on the standing of individual applicants in the fields of mergers, anti-dumping and State aid is presented on the companion website of this book, courtprocedure.eu. 365 Joined Cases C-67/85, C-68/85 and C-70/85 Van der Kooy and Others v Commission [EU:C:1988:38]; Case C-313/90 CIRFS and Others v Commission [EU:C:1993:111]; Case C-319/07 P 3F v Commission [EU:C:2009:435] paras 85–95.

Applicants and Standing 169 Secondly, where a procedure must be followed in respect of which a natural or legal person may assert rights, such as the right to be heard, the special legal position which that person enjoys has the effect of distinguishing him individually.366 The case law made it clear that these are the only two situations where participation in the administrative procedure implies individual concern, even if the applicant was otherwise extensively involved in that procedure. First, in Iberdrola, the applicant contested a Commission decision declaring that an aid scheme of which it was a potential beneficiary was incompatible with the common market. Iberdrola relied on its active participation in the administrative procedure, demonstrated inter alia by a meeting between its representatives and the Commission, referred to in the preamble to the contested decision. However, the General Court pointed out that Iberdrola confined itself to submitting unsolicited comments, in the same way as 31 other interested parties, and that the meeting with the Commission was not devoted to discussions with Iberdrola only, as other interested third parties were also present. The General Court therefore concluded that the applicant did not occupy a position as negotiator, and was therefore not individually concerned.367 Secondly, in Galileo Lebensmittel, the Court of Justice held that participation in the administrative procedure ‘does not distinguish [the applicant] individually with regard to the measure in question unless provision has been made under the European Union rules for procedural guarantees in his favour’.368 Thus, it transpires from the above case law that the mere fact of participating in the administrative procedure, without having the status of a negotiator or enjoying procedural rights laid down in Union law provisions, does not imply individual concern. Examples – examination of procedural rights and guarantees. Since, under the above case law (cf para 3.165), special procedural rights and guarantees are essential from the point of view of the assessment of individual concern, the existence and scope of such rights is often a matter of dispute before the Courts. In Norilsk, the applicants, one producer and one importer of nickel compounds, sought partial annulment of a directive and a regulation369 insofar as the latter classified certain nickel carbonate compounds as dangerous substances. They enjoyed procedural rights under the basic regulation on the evaluation and control of risks of substances,370 superseded by the REACH regulation.371 Those procedural rights resulted from the participation of the applicants in the risk evaluation procedure, conducted for the purposes of drawing up a priority list of dangerous substances and suggesting risk limitation strategies. However, the General Court pointed out that the risk evaluation procedure was separate from the classification procedure leading up to the adoption of the contested provisions. Although it was only on the completion of the risk assessment procedure that the Commission could start the classification procedure,

366 Case C-169/84 Cofaz v Commission [EU:C:1986:42] paras 24–25. 367 Case T-221/10 Iberdrola v Commission [EU:T:2012:112] para 31. 368 Order of 17 February 2009 in Case C-483/07 P Galileo Lebensmittel v Commission [EU:C:2009:95] para 53. See also Order of 7 September 2010 in Case T-532/08 Norilsk Nickel Harjavalta and Umicore v Commission [EU:T:2010:353] para 103. 369 Directive 2008/58/EC of 21 August 2008 amending, for the purpose of its adaptation to technical progress, for the 30th time, Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ 2008 L 246, p. 1); Commission Regulation (EC) No 790/2009 of 10 August 2009 amending, for the purposes of its adaptation to technical and scientific progress, Regulation (EC) No 1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures (OJ 2009 L 235, p. 1). 370 Council Regulation (EEC) No 793/93 of 23 March 1993 on the evaluation and control of the risks of existing substances (OJ 1993 L 84, p. 1). 371 Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency (OJ 2006 L 396, p. 1; the REACH regulation).

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170 Action for Annulment the legislation on risk assessment granting procedural rights to the applicants did not specify the conditions under which the results of the risk evaluation or any strategy recommendation could give rise to a proposal to classify the substance concerned. Therefore, the applicants’ procedural rights played no role in the classification procedure, and, consequently, their claim to be individually concerned was dismissed.372 In Enviro Tech, in the same field, the applicants did intervene in the classification procedure, albeit only after the initiation of the procedure within the CMR (carcinogenic, mutagenic or toxic for reproduction) working group, the specialist expert committee examining the substance at issue. Although the relevant provisions provide that the CMR working group ‘welcomes representatives of the industry concerned by the products at issue who may make observations at the beginning of the meeting, followed by a question and answer session’, this was not recognised by the General Court as a procedural right protecting the applicants which could have individualised them.373 Another example of strict application of the case law presented in para 3.165 is Eurofer, where the applicant, a trade association representing the interests of the European steel industry, sought the annulment of a Commission decision (addressed to the Member States) implementing the EU emission trading directive.374 The decision defined the benchmark of CO2 emission for each sector by taking into account the most efficient installations, with a view to deciding how many free emission allowances would be granted to incumbent installations annually. The directive provided for consultation during the Commission procedure, in which Eurofer participated. The General Court observed that the pleas in law raised by Eurofer did not concern an alleged breach of the obligation to consult, but rather the substantive statements contained in the decision. It held that the right to be heard did not create an obligation for the Commission to implement the proposals contained in the observations submitted by Eurofer and that the obligation to consult Eurofer’s members could not be considered the same as an obligation to follow the observations that they had submitted. Therefore, it concluded that, insofar as Eurofer sought not to protect its procedural rights but to challenge the legality of the contested decision in terms of its substantive content, Eurofer’s members were not individually concerned by the contested decision.375 3.167

Particular economic situation taken into account by the institution or body. Applicants whose particular economic situation was taken into account by the institution or body during the administrative procedure leading up to the adoption of the contested act may be individually concerned, at least in some areas of law. In Air France, the applicant challenged a Commission decision authorising the merger of two of its competitors, British Airways and TAT (the decision being only addressed to the latter companies). The General Court recognised as an individualising factor that in the contested decision, in assessing the foreseeable competitive situation on the relevant markets concerned after the concentration, the Commission took into account mainly the position of Air France, as well as the fact that TAT had formerly been a subsidiary of Air France.376 Another example is Mitteldeutsche Erdöl-Raffinerie, where the General Court

372 Order of 7 September 2010 in Case T-532/08 Norilsk Nickel Harjavalta and Umicore v Commission [EU:T:2010:353] paras 108–109. 373 Case T-291/04 Enviro Tech Europe and Enviro Tech International v Commission [EU:T:2011:760] paras 29 and 106, confirmed on appeal in Case C-118/12 P Enviro Tech Europe v Commission [EU:C:2013:37]. 374 Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community (OJ 2003 L 275, p. 32). 375 Order of 4 June 2012 in Case T-381/11 Eurofer v Commission [EU:T:2012:273] paras 37–39. See also Order of 4 June 2012 in Case T-379/11 Hüttenwerke Krupp Mannesmann and Others v Commission [EU:T:2012:272] paras 26–30. 376 Case T-3/93 Air France v Commission [EU:T:1994:36] paras 45–47.

Applicants and Standing 171 examined the admissibility of an application for annulment of a Commission decision (addressed to Germany) declaring a State aid scheme incompatible with the common market and ordering recovery. The General Court highlighted that the provision of a German tax law, declared incompatible by the Commission decision, had been adopted inter alia on the grounds of the particular features of the applicant’s situation, and that the particular situation of the applicant had been the subject of written observations filed by the German Government and the applicant’s parent company, and also of detailed discussions between that government and the Commission. As a result, the General Court held that the applicant was individually concerned.377 Applicant’s market position affected by the act is individualising factor – State aid and mergers. In some fields, the Courts recognised that natural or legal persons are individually concerned by an act if it affects their market position.378 The origin of the case law is Cofaz, where the applicants, French producers of nitrate fertilisers, challenged a Commission decision on the discontinuation of the State aid review procedure initiated against a Dutch aid scheme which allowed Dutch fertiliser producers to buy natural gas from third countries cheaper, via a preferential tariff system. The Court of Justice sided with the view of the applicants that the cost of natural gas represented an important part in the cost structure of nitrate fertiliser production. It also gave consideration to the argument that the applicants were in direct competition with the Dutch producers, and that the latter significantly increased their sales in France, possibly as a result of the preferential tariff system. It therefore ruled that the ‘Commission’s decision may adversely affect the applicants’ legitimate interests by seriously jeopardizing their position on the market’, and held that they were individually concerned by the Commission’s decision.379 Since Cofaz, the Courts have always recognised in subsequent judgments that competitors of the beneficiaries of State aid are individually concerned and had the standing to challenge the substance of a Commission decision declaring the aid compatible with the common market if they showed that their market position could be substantially affected as a result of the national measure. The Court of Justice refined the notion of ‘substantial affectation’ in Lenzing. It held that the mere fact that the decision approving aid influences competition on the relevant market and that the applicant competes with the beneficiary of the aid is insufficient to show individual concern.380 On the other hand, it would be overly strict to require from a competitor of the beneficiary that it demonstrates a significant decline in turnover, in market share or appreciable financial losses following the grant of the aid in question, also because the competitor may reasonably take counter-measures to avoid decline in its commercial or financial performance by making savings or by expanding in more profitable markets. The Court of Justice therefore concluded that substantial effect on Lenzing’s market position could be established on the basis of the circumstances mentioned by the General Court. Those were inter alia the oligopolistic nature of the relevant market, which was also characterised by serious production overcapacity, as well as the significance of the distortion created by aid to an undertaking operating in such a market and the easing effect of that aid on the beneficiary’s prices.381 Substantial effect on the market

377 Case T-9/98 Mitteldeutsche Erdöl-Raffinerie v Commission [EU:T:2001:271] paras 80–82. 378 The detailed case law on the standing of individual applicants in the fields of mergers, anti-dumping and State aid is presented on the companion website of this book, courtprocedure.eu. 379 Case C-169/84 Cofaz v Commission [EU:C:1986:42] para 27. See also Case C-78/03 P Commission v A ktionsgemeinschaft Recht und Eigentum [EU:C:2005:761] para 37. 380 See also Joined Cases C-10/68 and C-18/68 Eridania and Others v Commission [EU:C:1969:66] para 7; Order of 21 February 2006 in Case C-367/04 P Deutsche Post and DHL Express v Commission [EU:C:2006:126] para 40. 381 Case C-525/04 P Spain v Lenzing [EU:C:2007:698] paras 31–37. For a more recent assessment of substantial effect on a competitor’s market position, see Case T-182/10 Aiscat v Commission [EU:T:2013:9] paras 66 et seq.

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172 Action for Annulment position of a competitor has also been considered to be an individualising factor in the context of merger decisions. In BaByliss, the General Court examined if the applicant was individually concerned by the decision authorising the SEB/Moulinex merger. It held that even if BaByliss was not yet present in the geographical and product markets where SEB and Moulinex operated, its business plan indicated its intention to enter those markets and to start competing directly with the merging entities. It also pointed out that the relevant markets were oligopolistic and barriers to entry were high, so that the merger could well make it more difficult for a potential competitor, like BaByliss, to enter those markets. The General Court also held relevant that BaByliss had made three offers to acquire Moulinex before the merger. These factors – along with the participation of BaByliss in the Commission procedure – led the General Court to recognise that it was individually concerned by the merger decision.382 3.169

Applicant’s market position affected by the act – the Courts may be reluctant to recognise individual concern in other areas. As explained in para 3.168 above, the Courts recognise that competitors may show themselves to be individually concerned by Commission decisions authorising mergers and declaring State aid compatible with the common market. The common feature of these decisions is that the contested act usually improves the competitive potential of the merged entity or the beneficiary of the aid, which automatically means that economic operators active in the same geographical and product markets find it harder to compete with those companies as a result of the authorised concentration or the approved aid. This competitive relationship seems to be enough, at least in the said areas, to individualise the applicant, even if it is not the only competitor of the company whose position has been reinforced by the act. On the other hand, where the contested act does not clearly favour any particular company with which the applicant is in a competitive relationship, the Courts seem to require a more extensive demonstration to recognise that, as a result of the contested act, the applicant’s market position could be substantially affected in such a way as to individualise him. In BSI, the applicant, an Italian importer of Malaysian fasteners, challenged a Council regulation extending anti-dumping duties imposed on Chinese fasteners to Malaysian ones in order to avoid circumvention. BSI was not in any of those factual situations where settled case law recognises individual concern in the field of anti-dumping.383 BSI therefore relied on the effect on its market position to claim that it was individually concerned, by emphasising that the contested regulation caused it a serious financial loss and gravely endangered its economic survival. The General Court nonetheless ruled that these loss estimates were not substantiated and that, in any event, they were insufficient to show that the economic consequences suffered by the applicant were bigger than those to be faced by other importers of Malaysian fasteners. The fact that imports hit by the anti-dumping duty accounted for 52 per cent of BSI’s purchases was also held irrelevant, and the application was dismissed as inadmissible on the ground of lacking individual concern.384 A similarly strict approach was followed in Enviro Tech, where the applicants contested a Commission directive classifying n-propyl bromide as a dangerous substance. The applicants’ sole business was the production and distribution of a product composed essentially of n-propyl bromide, and theyhad been the subject of criminal proceedings and sanctions, at the national level, for infringement of the requirements resulting from the contested classification. Nevertheless, the General Court

382 Case T-114/02 BaByliss v Commission [EU:T:2003:100] paras 90–117. 383 The detailed case law on the standing of individual applicants in the fields of mergers, anti-dumping and State aid is presented on the companion website of this book, courtprocedure.eu. 384 Order of 5 February 2013 in Case T-551/11 BSI v Council [EU:T:2013:60] para 38.

Applicants and Standing 173 held that suffering major economic loss as a result of the entry into force and application of the contested classification could not in itself individualise the applicants.385 Intellectual property and other exclusive rights. Intellectual property and other exclusive rights, such as geographical indications and broadcasting rights, acquired prior to the adoption of the contested act386 may individualise an applicant, in particular if he is the sole holder of those rights and the contested act affects their exercise. In Codornìu, the applicant brought an action for annulment against a provision of a Council regulation reserving the use of the term ‘crémant’ to sparkling quality wines produced in France and Luxembourg. The Court of Justice noted that Codornìu had registered the graphic trade mark ‘Gran Cremant de Codornìu’ in Spain in 1924 and traditionally used that mark both before and after registration. It also considered that by reserving the right to use the term ‘crémant’ to French and Luxembourg producers, the contested provision prevented Codornìu from using its graphic trade mark, meaning that Codornìu was, from the point of view of the contested provision, in a situation which differentiated it from all other traders, and was therefore individually concerned by that particular position.387 Codornìu can be contrasted with Commune de Champagne, where the Swiss Champagne region and a winegrower association challenged a Council and Commission decision to conclude an international agreement with Switzerland restricting the use of the term ‘Champagne’ to beverages produced in the French region of Champagne. The General Court ruled that, unlike in Codornìu, where the applicant himself registered the trade mark granting exclusive rights to it and had used it since 1924, the use of the name ‘Champagne’ stems from the Swiss legislation which recognises that all undertakings, whose products satisfy the prescribed geographical and qualitative requirements, have the right to market them under the name ‘Champagne’ (see also the concept of an open class of traders in para 3.163). The General Court therefore ruled that the applicants were not individually concerned by the contested act.388 Another example is Enviro Tech. The applicants argued in vain that the contested directive, classifying their products as dangerous, affected them individually as exclusive licensees of a particular patented technology. The General Court pointed out that when the contested directive entered into force, a number of the applicants’ competitors also held patents linked to the production and marketing of solvents made of n-propyl bromide, which was classified as dangerous.389 Furthermore, the fact that the applicant is the sole licensee of a trade mark is insufficient to individualise him if the contested act does not affect the use of that right. In Galileo Lebensmittel, the applicant was the exclusive licensee of the German trade mark ‘Galileo’, and challenged the decision of the European Registry for Internet Domains (EURid) refusing its request for registration of the domain name ‘galileo.eu’. In the refusal decision, EURid had referred to an earlier reservation of that domain name by the Commission. The Court of Justice ruled that no individual concern could be derived from the exclusive right of the applicant, since the contested decision did not prevent it from using its trade mark. Therefore, its situation could not be assimilated to that under consideration in Codornìu.

385 Case T-291/04 Enviro Tech Europe and Enviro Tech International v Commission [EU:T:2011:760] para 111, confirmed on appeal in Case C-118/12 P Enviro Tech Europe v Commission [EU:C:2013:37]. See also Order of 29 June 2006 in Case T-311/03 Nürburgring v Parliament and Council [EU:T:2006:179] paras 65–66. 386 Joined Cases C-106/63 and C-107/63 Toepfer and Getreide-Import v Commission [EU:C:1965:65] paras 411–412. 387 Case C-309/89 Codorníu v Council [EU:C:1994:197] paras 21–22. 388 Order of 3 July 2007 in Case T-212/02 Commune de Champagne and Others v Council and Commission [EU:T:2007:194] para 186. 389 Case T-291/04 Enviro Tech Europe and Enviro Tech International v Commission [EU:T:2011:760] paras 114–116. See also para 3.169.

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174 Action for Annulment The application was thus rejected as inadmissible.390 In Infront WM, the applicant held the Europe-wide exclusive television broadcasting rights to the FIFA World Cup finals. The Commission decision affected the exercise of those rights, insofar as it approved a list of events, including the FIFA finals, submitted by the UK to the Commission, in respect of which the UK was entitled to ensure that no particular operator on its territory could have the exclusive broadcasting rights. The Court of Justice held that the contested decision affected the members of the group formed of six companies, identifiable at the moment of its adoption and which included Infront, by reason of an attribute which was peculiar to them. In fact, those companies were holders of the exclusive television broadcasting rights to designated events, and they had acquired those rights prior to the adoption of the contested decision (cf para 3.162 on the concept of a limited class of traders). It therefore established individual concern on those grounds.391 3.171

Sole holder of information. A natural or legal person may be individually concerned by an injunction to provide information addressed to another entity if that person is the sole holder of information, meaning that eventually it would need to furnish that information anyway in execution of the injunction. In Deutsche Post, the Court of Justice examined whether a formal injunction,392 issued by the Commission to Germany to submit information on the supposed State aid granted to Deutsche Post, concerned the latter individually. It held that the information requested by the act at issue concerned only Deutsche Post, and that the latter was the sole holder of that information. These factors were sufficient for the Court to state that Deutsche Post was individually concerned by the information injunction.393

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Sole producer – sole importer. Applicants often argue that they are individually concerned by an EU act of general application on the grounds that they are the only producers or importers of certain products in respect of which the act contains new prescriptions, or they belong to a group made up of a handful of such producers or importers. This circumstance alone is insufficient to demonstrate individual concern. However, if the applicant succeeds in showing that one or several individualising factors are present, or that it belongs to a closed class of economic operators which cannot be enlarged after the adoption of the act (cf para 3.162), individual concern may be established.394

3.173

Name mentioned in the contested act does not individualise. It is settled case law that the mere fact that the contested act mentions the name of the applicant is insufficient to show individual concern. In Würth and Fasteners, the General Court held that this fact merely indicated that the applicant participated in the administrative procedure, as one of the independent importers supplying data on the basis of which the Council calculated the profit margin in the anti-dumping proceedings leading up to the adoption of the contested regulation (cf para 3.165). This circumstance alone, however, was insufficient to establish individual concern.395

390 Order of 17 February 2009 in Case C-483/07 P Galileo Lebensmittel v Commission [EU:C:2009:95] paras 45–46. 391 Case C-125/06 P Commission v Infront WM [EU:C:2008:159] paras 72–77. 392 The injunction was issued under Art 10(3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 88 of the EC Treaty (OJ 1999 L 83, p. 1). 393 Joined Cases C-463/10 P and C-475/10 P Deutsche Post and Germany v Commission [EU:C:2011:656] para 74. 394 Case C-152/88 Sofrimport v Commission [EU:C:1990:259] para 11; Conversely, the applicants did not succeed in establishing individual concern in Case T-291/04 Enviro Tech Europe and Enviro Tech International v Commission [EU:T:2011:760]: see paras 109 et seq. 395 Case T-162/09 Würth and Fasteners v Council [EU:T:2012:187] paras 34–35. See also Order of 27 January 2006 in Case T-278/03 Van Mannekus v Council [EU:T:2006:31] para 128.

Applicants and Standing 175

3.1.4.7. Individual Applicants Challenging Regulatory Acts not Entailing Implementing Measures – The Third Variant (i) General The Lisbon Treaty relaxed the conditions of challenging ‘regulatory acts’ by individual applicants. Before the entry into force of the Lisbon Treaty, acts of general application were only challengeable by an individual applicant if he showed his direct and individual concern under the second variant of Article 230(4) TEC, which, in essence, corresponds to the second variant foreseen in Article 263(4) (cf para 3.136 et seq). The Lisbon Treaty introduced the third variant of Article 263(4) TFEU, under which individual applicants have the standing to bring an action for annulment against ‘a regulatory act which is of direct concern to them and does not entail implementing measures’. The three conditions are thus the qualification of the contested act as a regulatory act; the presence of direct concern; and the absence of implementing measures entailed by the contested act. First, the concept of ‘regulatory acts’ was introduced by the Treaty of Lisbon, and is to be understood as a sub-category of ‘acts of general application’, as opposed to ‘acts of individual scope’. Under settled case law, regulatory acts are acts of general application other than legislative acts (cf para 3.178 et seq). Secondly, the condition of being directly concerned corresponds to the requirement to be fulfilled under the second variant foreseen in Article 263(4) TFEU (cf para 3.140 et seq).396 Thirdly, when challenging a regulatory act, the applicant also has to show that the contested act does not entail implementing measures (cf para 3.190 et seq). If all three conditions are fulfilled, the applicant does not need to show individual concern, which, in the pre-Lisbon era, often proved to be the main obstacle to seeking direct review of EU acts of general application before the EU Courts. The introduction of the third variant is therefore considered to be an alleviation of the conditions of standing for individual applicants (cf para 3.131).

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Historical context – effective judicial protection, Unión de Pequeños Agricultores and Jégo Quéré. The principle of effective judicial protection, initially derived by the Court of Justice from Articles 6 and 13 of the European Convention of Human Rights, requires that everyone whose rights and freedoms guaranteed by EU law provisions are violated has the right to an effective remedy before a court.397 The Court of Justice held in this respect that the Treaty has established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions398 (cf para 1.04). Before the Lisbon Treaty, under Article 230(4) TEC, individual applicants could directly challenge acts not addressed to them (including acts of general application) only if those acts were of direct and individual concern to them. This restriction could be reconciled with the principle of effective judicial protection without much difficulty where the EU act was implemented by a national measure challengeable by the applicant or an EU measure of direct and individual concern to the applicant. The latter could then cause the national court before which he challenged the national measure to make a reference to the Court of Justice for a preliminary ruling on the validity of the underlying EU act of

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396 Case T-262/10 Microban International and Microban (Europe) v Commission [EU:T:2011:623] para 32; Case C-248/12 P Northern Ireland Department of Agriculture and Rural Development v Commission [EU:C:2014:137] para 34. 397 Case 222/84 Johnston [EU:C:1986:206] paras 18–19; Case C-50/00 P Unión de Pequeños Agricultores v Council [EU:C:2002:462] para 39. 398 Case C-294/83 Les Verts v Parliament [EU:C:1986:166] para 23; Case C-50/00 P Unión de Pequeños Agricultores v Council [EU:C:2002:462] para 40.

176 Action for Annulment general application.399 If the EU’s act was implemented by the EU itself, the applicant could challenge the implementing measure before the General Court and raise a plea of illegality against the underlying EU act. However, situations where no implementing measures were needed (possibly because the EU’s act was already an implementing measure), or where the EU’s implementing measure was again of general application where individual concern could not be shown, had been the Achilles heel of the EU’s judicial system for a long time. That meant that no action could be brought before a national court further to which a request for preliminary ruling could have been made (since there was no national implementing measure that could have been challenged), or, where the EU implemented the act, the applicant had no standing to bring an action for annulment against the implementing measure before the General Court because of the absence of individual concern. Such a situation arose in Unión de Pequeños Agricultores, where the applicant, the Spanish smallholders’ federation, filed an action for annulment against a Council regulation on the common organisation of the market in oils and fats.400 The said regulation abolished the agricultural intervention scheme, consumption aid and aid to small producers. The other case that is often referred to is Jégo Quéré,401 where the applicant brought an action for annulment against a Commission regulation establishing measures for the recovery of the stock of hake – specifically, against the provisions of that regulation prohibiting the use of certain towed nets with a certain mesh size in given geographical areas. The regulations at issue in Unión de Pequeños Agricultores and in Jégo Quéré did not require national or EU implementing measures, which meant that no incidental review of validity could be requested via national courts or via a plea of illegality. The Court of Justice nonetheless held that the principle of effective judicial protection could not overwrite the system of judicial remedies as laid down in the EC Treaty and that the possibility to change that system lay with the Member States, which could do it by amending the relevant Treaty provisions.402 Working groups preparing the Treaty establishing a Constitution for Europe tackled these issues at the start of their activities, and the enlargement of standing of individual applicants was one of the main goals to be achieved.403 Such a change had indeed been made in Article III-365 of the proposed Treaty establishing a Constitution for Europe, and was taken over by the Lisbon Treaty. It was also prompted by the elevation of the normative value of the Charter of Fundamental Rights, Article 47 of which contains the principle of effective judicial remedy, to that of the Treaties. 3.176

Rationale – no need to break the law to get access to justice. As a result of these changes in the Treaty, Article 263(4) TFEU no longer requires the demonstration of individual concern in respect of regulatory acts of direct concern that do not entail implementing measures. It was expected that this amendment would eliminate – or at least substantially reduce – the gap on effective judicial protection which resulted from the restriction of standing in Article 230 TEC. The principal objective of the third variant of Article 263(4) TFEU is to enable natural and legal persons to bring an action before the General Court against regulatory acts which do not entail implementing measures, so that individual applicants do not have to break the law in order to

399 Case C-50/00 P Unión de Pequeños Agricultores v Council [EU:C:2002:462] para 40; Case C-314/85 Foto-Frost [EU:C:1987:452] para 20. 400 Council Regulation (EC) No 1638/98 of 20 July 1998 amending Regulation No 136/66/EEC on the establishment of a common organisation of the market in oils and fats (OJ 1998 L 210, p. 32). 401 Case C-263/02 P Commission v Jégo-Quéré [EU:C:2004:210]. 402 Case C-50/00 P Unión de Pequeños Agricultores v Council [EU:C:2002:462] para 45; Case C-263/02 P Commission v Jégo-Quéré [EU:C:2004:210] para 36. 403 See also F Mariatte and D Rittleng, Contentieux de l’Union europèenne 1 – Annulation, exception d’illégalité (Kluwer France – Lamy, Paris, 2011) 122.

Applicants and Standing 177 have access to a court.404 Indeed, where a regulatory act directly affects the legal situation of a natural or legal person without requiring implementing measures, that person could be denied effective judicial protection if he did not have a legal remedy before the EU judicature for the purpose of challenging the lawfulness of the regulatory act. In the absence of implementing measures, a natural or legal person, although directly concerned by the act in question, would be able to obtain a judicial review of the act only after having infringed its provisions, by pleading that those provisions are unlawful in proceedings initiated against him before the national court.405 Standing under the third variant of Article 263(4) may be examined ex officio. Admissibility of actions for annulment brought by individual applicants is an issue that the Courts may examine of their own motion.406 This rule is extended to the situation where the applicant does not argue that the contested act is a regulatory act and the defendant institution or body puts forward that he has no individual concern. If the Courts find of their own motion that the contested act is a regulatory act, missing individual concern should not be an obstacle to standing.407

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(ii) Regulatory Acts Regulatory acts are non-legislative acts of general application. In Inuit I, the Courts defined ‘regulatory acts’ as (i) acts of general application (cf para 3.180) (ii) other than legislative acts (cf para 3.181).408 This definition was taken over in later judgments and orders,409 and has become settled case law. In Montessori, the Court of Justice made clear that all non-legislative acts of general application are regulatory acts.410

3.178

The Inuit I case. The first clarification as regards the notion of ‘regulatory act’ appeared in the order of the General Court handed down in the Inuit I case,411 which was subsequently confirmed, on appeal, by the Court of Justice.412 Seventeen applicants – mainly producers and traders of seal products – challenged a regulation of the Parliament and the Council413 on trade in seal products that introduced a ban on the placing on the market of seal products in the EU. The General Court stated that the meaning of ‘regulatory act’ was not defined by the FEU Treaty and that therefore it had to carry out a literal, historical and teleological interpretation of that new provision appearing in Article 263(4) TFEU. First, it inferred from the general meaning of the word ‘regulatory’ that ‘regulatory acts’ are acts of general application. Then it recalled that Article 263(1) TFEU

3.179

404 Case T-279/11 T & L Sugars and Sidul Açúcares v Commission [EU:T:2013:299] paras 58–59, confirmed on appeal in Case C-456/13 P T & L Sugars and Sidul Açúcares v Commission [EU:C:2015:284] para 29; Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] para 58; Case C-145/17 P Internacional de Productos Metálicos v Commission [EU:C:2018:839] para 49. 405 Case C-274/12 P Telefónica v Commission [EU:C:2013:852] para 27; Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] para 58. 406 Case C-362/06 P Sahlstedt and Others v Commission [EU:C:2009:243] para 22. 407 Opinion of AG Wathelet in Case C-132/12 P Stichting Woonpunt and Others v Commission [EU:C:2013:335] para 50; Case C-132/12 P Stichting Woonpunt and Others v Commission [EU:C:2014:100] paras 45–47. See the application of this principle in Case T-220/13 Scuola Elementare Maria Montessori v Commission [EU:T:2016:484] para 26 and in Case T-367/10 Bloufin Touna Ellas and Others v Commission [EU:T:2013:97] paras 16 and 18. 408 Case C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council [EU:C:2013:625] paras 58–61. 409 Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] para 23; Case T-262/10 Microban International and Microban (Europe) v Commission [EU:T:2011:623] para 21; Case T-94/10 Rütgers Germany and Others v ECHA [EU:T:2013:107] para 57. 410 Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] para 24. 411 Order of 6 September 2011 in Case T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council (Inuit I) [EU:T:2011:419] para 64. 412 Case C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council [EU:C:2013:625]. 413 Regulation (EC) No 1007/2009 of the Parliament and the Council on trade in seal products (OJ 2009 L 286, p. 36).

178 Action for Annulment explicitly mentions ‘legislative acts’ and that the second variant of Article 263(4) provides that individual applicants may institute proceedings against any ‘act’ which is of direct and individual concern to them (thus covering both acts of individual and general scope, including legislative acts). It concluded that the term ‘regulatory act’ cannot therefore include legislative acts, because if it was to include them, the Treaty would mention in the third variant ‘act’ or ‘act of general application’, without limiting the application of that variant to ‘regulatory acts’.414 Furthermore, as regards historical interpretation, the General Court pointed out that Article 263(4) TFEU had its origins in Article III-365(4) of the proposed Treaty establishing a Constitution for Europe. It looked into the travaux préparatoires415 and noted that, in spite of the proposal for an amendment to the Article 230(4) TEC mentioning ‘an act of general application’, the Praesidium of the Convention adopted another option, that mentioning ‘a regulatory act’. The General Court held that this solution reflected a distinction to be made between legislative acts and regulatory acts, and it recalled that, as indicated in the travaux préparatoires, the use of the term ‘regulatory act’ signalled a ‘restrictive approach in relation to actions by individuals against legislative acts, for which the “of direct and individual concern” condition remains applicable’.416 The above interpretation made by the General Court was fully endorsed by the Court of Justice in its judgment delivered on appeal.417 The AG Opinion also added another justification for the exclusion of legislative acts from the scope of ‘regulatory acts’: the absence of easier direct legal remedies available to individuals against legislative acts could be explained by the democratic legitimation of parliamentary legislation and by the fact that in many national legal systems individuals had no direct legal remedies against parliamentary laws.418 3.180

Act of general application. The first condition – that a regulatory act must be an act of general application – is examined under the case law regarding the difference between acts of general application and individual acts. A measure is of general application if it applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged generally and in the abstract419 (cf para 3.130 in fine). The assessment regarding general application is the same for the purposes of the examination of standing under the second and third variants of Article 263(4), as it concerns an objective characteristic of the act.420

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Non-legislative act: qualification based on the procedure of adoption. The second condition of the qualification of a measure as a ‘regulatory act’ is that it is not legislative in nature. In this respect, the Courts chose a single and purely formal criterion, namely that ‘legislative acts’ are acts adopted via a legislative procedure foreseen in the TFEU. In Inuit I, the General Court pointed out that the contested regulation was adopted according to the co-decision procedure referred to in Article 251 TEC, which corresponds to ‘the ordinary legislative procedure’ foreseen

414 Order of 6 September 2011 in Case T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council (Inuit I) [EU:T:2011:419] paras 40–42. 415 Cover note of the Praesidium of the Convention (Secretariat of the European Convention, CONV 734/03) of 12 May 2003). 416 Order of 6 September 2011 in Case T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council (Inuit I) [EU:T:2011:419] para 49. 417 Case C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council [EU:C:2013:625] paras 52–62. 418 Opinion of AG Kokott in C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council (Inuit I) [EU:C:2013:21] para 38. 419 Order of the General Court of 30 November 2009 in Case T-313/08 Veromar di Tudisco Alfio & Salvatore v C ommission [EU:T:2009:477] para 38; Order of 6 September 2011 in Case T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council (Inuit I) [EU:T:2011:419] para 63. 420 Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] para 32.

Applicants and Standing 179 in Article 294 TFEU. It concluded that legal acts adopted under that procedure are legislative acts by virtue of Article 289(1) and (3) TFEU.421 It follows that acts of general application which have not been adopted under either the ordinary or a special legislative procedure foreseen in the FEU Treaty are ‘regulatory acts’, as was later expressly stated by the General Court in Rütgers and BSI.422 In order to determine if the act has been adopted via a non-legislative procedure, it is normally sufficient to examine the first few recitals of the act specifying the legal basis.423 Examples. In the following paras, examples of regulatory acts belonging to various non-legislative categories will be provided. It is also noteworthy that, unlike the corresponding rules in the EC Treaty, Article 297(2) TFEU provides that non-legislative acts may also be adopted in the form of regulations and directives, which are conceived to be acts of general application.

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Delegated acts as regulatory acts. Article 290(1) TFEU provides that a legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act. The adjective ‘delegated’ has to be inserted in the title. In Dyson,424 the applicant brought an action for annulment against a delegated regulation of the Commission that supplemented a legislative directive. The Commission, as the defendant, did not raise any objection to admissibility, and the General Court examined the merits of the action without looking into individual concern. In Polyelectrolyte Producers,425 the applicants challenged a Commission regulation which amended Annex XVII (Acrylamide) of the REACH regulation,426 and was therefore a delegated act according to the definition foreseen in Article 290(1) TFEU. Again, the issue of individual concern (and, in general, that of standing) was not raised, and the General Court examined the substance of the action. In light of these cases, and given that delegated acts fulfil the Inuit criteria (they are non-legislative acts of general application, cf paras 3.178–3.181), it seems that these acts are included in the concept of regulatory acts.

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Implementing acts as regulatory acts. Article 291(1) TFEU provides that where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission or, in duly justified specific cases and in the cases provided for in Articles 24 and 26 TEU, on the Council. Under Article 291(4) TFEU, the word ‘implementing’ must be inserted in the title of implementing acts. Anti-dumping regulations have been qualified as ‘implementing regulations’ since the entry into force of the Lisbon Treaty.427

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421 Order of 6 September 2011 in Case T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council (Inuit I) [EU:T:2011:419] paras 57–60. 422 Order of 5 February 2013 in Case T-551/11 BSI v Council [EU:T:2013:60] para 43; Case T-94/10 Rütgers Germany and Others v ECHA [EU:T:2013:107] para 59. 423 Case T-262/10 Microban International and Microban (Europe) v Commission [EU:T:2011:623] para 22. 424 Case T-544/13 Dyson v Commission [EU:T:2015:836] para 87. The judgment was partially set aside by the Court of Justice on appeal (C-44/16 P Dyson v Commission [EU:C:2017:357]); the issue of standing was, however, not raised. 425 Case T-368/11 Polyelectrolyte Producers Group and Others v Commission [EU:T:2013:53], confirmed on appeal in Order of 27 March 2014 in Case C-199/13 P Polyelectrolyte Producers Group and Others v Commission [EU:C:2014:205]. 426 Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency (OJ 2006 L 396, p. 1; the REACH regulation). 427 The first such regulation was adopted on 7 December 2009, Council implementing Regulation (EU) No 1202/2009 of 7 December 2009 imposing a definitive anti-dumping duty on imports of furfuryl alcohol originating in China (OJ 2009 L 323, p. 48). Art 9(4) of the new Basic Anti-dumping Regulation [Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21)] transferred the power to adopt definitive anti-dumping regulations to the Commission.

180 Action for Annulment Article 263(4) TFEU was first applied to such a regulation in BSI, where the applicant, an independent importer, brought an action for annulment against the Council implementing regulation extending the anti-dumping duties imposed on fasteners originating in China to fasteners consigned in Malaysia.428 The General Court applied the Inuit test (cf paras 3.178–3.181) and stated that the contested regulation was an act of general application not adopted via a legislative procedure, and, therefore, was a regulatory act.429 In T&L Sugars, the same test was applied to three Commission implementing regulations and to a non-classified Commission regulation, which together formed a package of measures designed to increase the supply of sugar on the EU market. The General Court held that all the contested regulations were regulatory acts, given that they were acts of general application which had not been adopted according to the ordinary legislative procedure or according to a special legislative procedure.430 A Commission implementing regulation concerning classification of chemical substances was also considered to be a regulatory act in Industrias Químicas del Vallés.431 Apart from regulations, implementing acts may also take the form of directives432 and decisions.433 Under the Inuit test, the latter should also be qualified as regulatory acts if they have a general scope. 3.185

Non-classified regulations as regulatory acts. Regulations not classified by their authors as ‘delegated’ or ‘implementing’ are also regulatory acts under the Inuit test provided that they were not adopted via a legislative procedure.434 Such a non-classified regulation was considered a regulatory act in Bloufin Touna.435 In T & L Sugars, where three ‘implementing’ regulations and a fourth non-classified regulation were contested, that fourth regulation was also held to be a regulatory act, given that it had not been adopted via a legislative procedure either.436

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Decisions as regulatory acts – examination of general application. The main question from the point of view of the qualification of a decision as a regulatory act is whether it is of general application. Examples include Microban, in which the applicants contested a Commission decision, addressed to the Member States, concerning the non-inclusion of triclosan in the Union list of additives which may be used in the manufacture of plastic materials and articles intended

428 Council Implementing Regulation (EU) No 723/2011 of 18 July 2011 extending the definitive anti-dumping duty imposed on imports of certain iron or steel fasteners originating in China to imports of certain iron or steel fasteners consigned from Malaysia (OJ 2011 L 194, p. 6). 429 However, it dismissed the application as inadmissible. It held that the contested regulation still entailed implementing measures, so that the applicant had no standing under Art 263(4) TFEU third variant, whereas the lack of individual concern excluded the application of the second variant. See Order of 5 February 2013 in Case T-551/11 BSI v Council [EU:T:2013:60] paras 38, 43 and 62. The order was not appealed against. 430 Case T-279/11 T & L Sugars and Sidul Açúcares v Commission [EU:T:2013:299] para 36, confirmed on appeal in Case C-456/13 P T & L Sugars and Sidul Açúcares v Commission [EU:C:2015:284]. However, as in BSI, the General Court considered that the applicants did not have standing under the third variant of Art 263(4) TFEU, because the regulations entailed implementing measures, while the second variant could not be applied because of missing individual concern. See Case T-279/11 T & L Sugars and Sidul Açúcares v Commission [EU:T:2013:299] paras 73 and 94. 431 C-244/16 P Industrias Químicas del Vallés v Commission [EU:C:2018:177] para 40. However, the applicant had no standing since the act entailed implementing measures. 432 It follows from Art 297(2) TFEU that directives are not necessarily legislative in nature. Since 2011, the Commission has been using the adjective ‘implementing’ in its directives which are implementing acts within the meaning of Art 291 TFEU. See, eg Commission Implementing Directive 2012/25/EU of 9 October 2012 laying down information procedures for the exchange, between Member States, of human organs intended for transplantation (OJ 2012 L 275, p. 27). 433 See, eg Case T-733/17 GMP-Orphan (GMPO) v Commission [EU:T:2019:334]. The General Court ruled on the merits of the action without examining the standing of the applicant. 434 The second condition, that of general application, is necessarily fulfilled, given that Art 288 TFEU provides that ‘a regulation shall have general application’. 435 Case T-367/10 Bloufin Touna Ellas and Others v Commission [EU:T:2013:97] para 18. 436 Case T-279/11 T & L Sugars and Sidul Açúcares v Commission [EU:T:2013:299] para 36.

Applicants and Standing 181 to come into contact with foodstuffs. The General Court recalled the principle that acts are of general application if they apply to objectively determined situations and produce legal effects with respect to categories of persons envisaged in general and in the abstract. It considered that, as a result of the non-inclusion in the list at issue, triclosan could no longer be marketed in the Union after 1 November 2011. Thus, the contested decision applied to all producers and sellers of goods containing triclosan, meaning that the contested decision was an act of general application.437 In Eurofer, the applicant challenged a Commission decision, addressed to the Member States, which implemented the EU emission trading directive.438 The decision defined the benchmark of CO2 emission for each sector by taking into account the most efficient installations, with a view to deciding how many free emission allowances would be annually granted to incumbent installations. The General Court considered that the decision was of general application and therefore a regulatory act.439 In Rütgers and Cindu, the applicants sought the annulment of an ECHA decision resulting in the inclusion of anthracene oil to the list of substances of very high concern.440 The General Court considered that this decision, published on the website of ECHA and not addressed to anyone, was a non-legislative act of general application and therefore a regulatory act.441 Montessori: Commission decisions concerning State aid schemes are regulatory acts. The question whether Commission decisions concerning State aid schemes are regulatory acts was left open for a long time after the entry into force of the Lisbon Treaty. In Telefónica and Stichting Woonlinie, the Advocates General Kokott and Wathelet suggested that such Commission decisions were of general application and therefore regulatory acts within the meaning of Article 263(4) TFEU.442 However, in the judgments delivered in these cases, the Court of Justice preferred not to decide this issue and found that, irrespective of the question whether such an act was a regulatory act, it nonetheless entailed national implementing measures, and therefore the conditions governing admissibility laid down in the final limb of Article 263(4) were not met.443 The Court finally took a position on this question in Montessori. It held that all non-legislative acts of general application were to be qualified as regulatory acts even if they were adopted in the form of a decision, and notwithstanding the fact that they might have concerned some economic operators individually.444 Therefore, it upheld the General Court’s finding that the Commission decision concerning aid schemes was a regulatory act.445

437 Case T-262/10 Microban International and Microban (Europe) v Commission [EU:T:2011:623] paras 21–25. Since the act did not entail further implementing measures, the third variant of Art 263(4) was applicable. 438 Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community (OJ 2003 L 275, p. 32). 439 Order of 4 June 2012 in Case T-381/11 Eurofer v Commission [EU:T:2012:273] paras 43–45 and 62. However, as it entailed further implementing measures, the applicant did not have standing under the third variant of Art 263(4). Since the applicant was not individually concerned, the second variant of Art 263(4) did not apply either, and the application was rejected as inadmissible (cf para 3.166). 440 Under Art 57 of the REACH regulation. 441 Case T-96/10 Rütgers Germany and Others v ECHA [EU:T:2013:109] paras 57–60; Case T-95/10 Cindu Chemicals and Others v ECHA [EU:T:2013:108] paras 63–66 (cf para 3.24). As the act did not entail implementing measures, the applications were admissible. 442 Opinion of AG Kokott of 21 March 2013 in Case C-274/12 P Telefónica v Commission [EU:C:2013:204] paras 20–29; Opinion of AG Wathelet of 29 May 2013 in Case C-132/12 P Stichting Woonpunt and Others v Commission [EU:C:2013:335] paras 85 et seq. 443 Case C-274/12 P Telefónica v Commission [EU:C:2013:852] para 38; Case C-132/12 P Stichting Woonpunt and Others v Commission [EU:C:2014:100] para 54. 444 See, eg Case C-135/16 Georgsmarienhütte and Others [EU:C:2018:582] paras 30–33. 445 Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] paras 28–39; Case T-220/13 Scuola Elementare Maria Montessori v Commission [EU:T:2016:484] para 52.

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182 Action for Annulment 3.188

Concept of ‘regulatory act’ and effective judicial protection. In the Inuit I case, the Courts gave a straightforward definition much in line with the original objective of the Treaty’s Lisbon amendment: regulatory acts are non-legislative acts of general application. This definition has the undisputable advantage that it can be easily applied in practice and can harmoniously coexist with Treaty provisions using the terms ‘legislative act’ and ‘act of general application’ (cf para 3.178). However, observers predicted even before the appearance of that case law that such a narrow interpretation of ‘regulatory acts’ would have the controversial effect446 that the Council regulation contested in Unión de Pequeños Agricultores – one of the cases that triggered the amendment of Article 230(4) TEC – could still not be challenged by an individual applicant today, given that it was a legislative act, and similar acts were adopted through the ordinary legislative procedure also in the post-Lisbon era.447 On the other hand, the Bloufin Touna case offers a perfect illustration of the relaxation of conditions of standing. In that case, the General Court held admissible an action for annulment against a Commission regulation prohibiting the use of certain seiners in specific geographical areas in order to reconstitute the stock of bluefin tuna.448 The relevant facts were thus a nearly accurate repetition of those in Jégo Quéré,449 in which an action for annulment was brought against a Commission regulation prohibiting the use of certain towed nets in specific geographical areas with the objective of the recovery of the stock of hake (cf para 3.175). In both cases, the applicants were fishing companies. The Commission regulation in Jégo Quéré was assimilated to legislative acts, and the applicants could not show individual concern,450 thus they did not have the standing to bring the action for annulment under the old Article 230(4) TEC. Today, all Commission regulations are regulatory acts, since they are not adopted via a legislative procedure. Accordingly, the applicants in Bloufin Touna had the standing to bring an action for annulment against the contested regulation, since it was a regulatory act which did not entail implementing measures and was of direct concern to them, with the crucial consequence that they did not need to demonstrate individual concern in order to have standing under the third variant of Article 263(4) TFEU.451

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Incidental review of legislative acts – the Inuit I and Inuit II cases. In Inuit I, the fact that the contested regulation was legislative in nature precluded standing under the third variant of Article 263(4) TFEU (cf para 3.179). The Inuit II case demonstrated that the exclusion of legislative acts from the concept of regulatory acts does not in itself imply the impairment of the principle of effective judicial protection. Shortly after the adoption of the legislative regulation contested in Inuit I, the Commission adopted a regulation laying down detailed rules for the implementation of that legislative regulation. In the case brought against that Commission regulation (Inuit II), the General Court found that the Commission regulation was a regulatory act not entailing further implementing measures, and thus declared the application admissible under the third variant of Article 263(4).452 In the Inuit II case, the applicants could also put forward a plea of illegality as regards the legislative regulation they challenged in Inuit I, meaning that the

446 See, eg M Wathelet and J Wildemeersch, Contentieux européen (Larcier, Brussels, 2010) 212. 447 cf Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ 2013 L 347, p. 1). 448 Case T-367/10 Bloufin Touna Ellas and Others v Commission [EU:T:2013:97] para 22. 449 Case C-263/02 P Commission v Jégo-Quéré [EU:C:2004:210]. 450 Case C-263/02 P Commission v Jégo-Quéré [EU:C:2004:210] paras 35, 38–39 and 48. 451 Case T-367/10 Bloufin Touna Ellas and Others v Commission [EU:T:2013:97] paras 15–29. 452 Case T-526/10 Inuit Tapiriit Kanatami and Others v Commission (Inuit II) [EU:T:2013:215] paras 18–21.

Applicants and Standing 183 exclusion of legislative acts from the definition of ‘regulatory acts’ did not deprive them of the possibility of seeking an effective remedy through incidental review.453 (iii) Not Entailing Implementing Measures Overview. The condition of ‘not entailing implementing measures’ is to be interpreted in the light of the system of incidental review (cf para 3.191). The concept of ‘implementing measures’ is broad. Any measures giving effect to the contested act, adopted by the EU or by national authorities, are relevant, even if those implementing measures are purely mechanical (cf para 3.193), since incidental review can also be sought by challenging those automatic implementing measures. The presence of implementing measures is examined, however, by reference to the position of the applicant, and his possibilities to seek incidental review (cf para 3.194).

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The concept of ‘not entailing implementing measures’ is connected with the system of direct and incidental review. The third cumulative condition of standing under the third v ariant of Article 263(4) TFEU is that the contested act does not entail implementing measures. Implementing measures adopted by national authorities and EU institutions or bodies are both relevant. The concept of the condition of ‘not entailing implementing measures’ is linked with the repartitioning of work between national courts and the EU judicature. The complete system of legal remedies against illegal acts of the EU institutions or bodies, as interpreted in the light of the principle of effective judicial protection, encompasses both direct review, carried out by the EU Courts in actions for annulment (Article 263 TFEU), and incidental review, carried out by the EU Courts following a plea of illegality (Article 277 TFEU) and by the Court of Justice following a reference from a national court regarding the validity of an EU act (Article 267 TFEU) (cf paras 1.11–1.12). The condition of ‘not entailing implementing measures’ thus also serves for the delineation between direct review and incidental review (cf paras 3.141–3.142).454 Where the regulatory act does not entail implementing measures, direct review is available under the third variant of Article 263(4) TFEU against non-legislative acts which concern the applicant directly, while incidental review is not available, since there are no implementing measures to be challenged. Where the act does entail implementing measures, the available judicial avenues are either an action for annulment brought against the implementing EU measure (where the act is implemented by the EU), in which a plea of illegality could be raised against the purportedly flawed EU act,455 or a case brought before a national court against the national implementing measure (where the act is implemented by the Member States), in which a preliminary reference on the validity of that flawed EU act can be made.456 In this regard, the Court of Justice held, in Telefónica,457 as follows:

3.191

27 The concept of a ‘regulatory act which … does not entail implementing measures’, within the meaning of the final limb of the fourth paragraph of Article 263 TFEU, is to be interpreted in the light of that

453 Opinion of AG Kokott in C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council [EU:C:2013:21] para 61. 454 The condition of direct concern had a similar function under Art 230(4) TEC and also today under Art 263(4) when the applicant is individually concerned. 455 See, eg Case T-526/10 Inuit Tapiriit Kanatami and Others v Commission (Inuit II) [EU:T:2013:215]. 456 See, eg Case C-207/17 Blaas [EU:C:2018:840], in which the national implementing measures of anti-dumping regulations were challenged before a national court, the latter making a preliminary reference on validity. 457 Case C-274/12 P Telefónica v Commission [EU:C:2013:852] paras 27–29. See also Case C-456/13 P T & L Sugars and Sidul Açúcares v Commission [EU:C:2015:284] paras 29–32; Case C-145/17 P Internacional de Productos Metálicos v Commission [EU:C:2018:839] paras 49–51.

184 Action for Annulment provision’s objective, which, as is clear from its origin, consists in preventing an individual from being obliged to infringe the law in order to have access to a court. Where a regulatory act directly affects the legal situation of a natural or legal person without requiring implementing measures, that person could be denied effective judicial protection if he did not have a direct legal remedy before the European Union judicature for the purpose of challenging the legality of the regulatory act. In the absence of implementing measures, natural or legal persons, although directly concerned by the act in question, would be able to obtain a judicial review of that act only after having infringed its provisions, by pleading that those provisions are unlawful in proceedings initiated against them before the national courts. 28 It should be explained in this regard, first, that where a regulatory act entails implementing measures, judicial review of compliance with the European Union legal order is ensured irrespective of whether those measures are adopted by the European Union or the Member States. Natural or legal persons who are unable, because of the conditions governing admissibility laid down in the fourth paragraph of Article 263 TFEU, to challenge a regulatory act of the European Union directly before the European Union judicature are protected against the application to them of such an act by the ability to challenge the implementing measures which the act entails. 29 Where responsibility for the implementation of such acts lies with the institutions, bodies, offices or agencies of the European Union, natural or legal persons are entitled to bring a direct action before the European Union judicature against the implementing acts under the conditions stated in the fourth paragraph of Article 263 TFEU, and to plead in support of that action, pursuant to Article 277 TFEU, the illegality of the basic act at issue. Where that implementation is a matter for the Member States, those persons may plead the invalidity of the basic act at issue before the national courts and tribunals and cause the latter to request a preliminary ruling from the Court of Justice, pursuant to Article 267 TFEU …

3.192

Examples for regulatory acts not entailing implementing measures. The General Court established the absence of implementing measures in a number of cases and found that the applicants had standing to bring an action for annulment against regulatory acts under the third variant of Article 263(4) TFEU. For instance, the subject of Inuit II was an action for annulment against a Commission regulation laying down detailed rules for the implementation of the basic regulation on trade in seal products (the latter was the subject of the Inuit I order, cf para 3.179). The General Court found that the Commission regulation required no further implementing measures, and declared the application admissible.458 In Bloufin Touna, the General Court reached similar conclusions and held admissible an action for annulment against a Commission regulation prohibiting the use of certain seiners in specific geographical areas in order to reconstitute the stock of bluefin tuna.459 Furthermore, in Rütgers and Cindu, a decision of the ECHA to include anthracene oil to the list of substances of very high concern was also considered to be a ‘regulatory act not entailing implementing measures’.460

3.193

Automatic implementing measures are also relevant. The fact that the national implementing measures are purely mechanical and the national authorities have no discretion regarding their content is not an obstacle to stating that the contested act ‘entails implementing measures’, and that, therefore, the third variant of Article 263(4) TFEU is not applicable.461 As the Court of Justice explained it in T & L Sugar, this is because even purely automatic national implementing

458 Case T-526/10 Inuit Tapiriit Kanatami and Others v Commission (Inuit II) [EU:T:2013:215] paras 18–21. 459 Case T-367/10 Bloufin Touna Ellas and Others v Commission [EU:T:2013:97] para 22. 460 Case T-96/10 Rütgers Germany and Others v ECHA [EU:T:2013:109] paras 57–60; Case T-95/10 Cindu Chemicals and Others v ECHA [EU:T:2013:108] paras 63–66 (cf para 3.24). 461 Case C-244/16 P Industrias Químicas del Vallés v Commission [EU:C:2018:177] para 47; Case C-145/17 P Internacional de Productos Metálicos v Commission [EU:C:2018:839] para 54 and the case law cited.

Applicants and Standing 185 measures offer a judicial avenue before national courts through which the validity of the underlying EU act can be challenged, through the system of incidental review462 (cf para 3.191). Further examples include BSI, where the applicant challenged an anti-dumping regulation. The applicant argued that the regulation set the rate of the anti-dumping duty at 85 per cent, leaving no discretion to national authorities. However, the General Court ruled that a customs debt arose by virtue of a decision of the national customs authorities. Even if this national procedure is indeed typically automatic, the existence of the customs debt could only be challenged via national courts in a case brought against the national customs authorities.463 Besides, customs duties are always levied on the basis of decisions adopted by national customs authorities. Therefore, the General Court concluded that the contested anti-dumping regulation, itself an implementing act, entailed further national implementing measures.464 The applicant could not validly argue that the national customs authorities had no discretion as regards the implementation of the contested regulation. The General Court pointed out that the issue of discretion is only relevant for the assessment of direct concern. It held, in essence, that ‘not entailing implementing measures’ is a separate and stricter condition than that of direct concern, and it means that the third variant of Article 263(4) TFEU only applies where there are literally no further implementing measures to be adopted at national level in order to give effect to the contested act.465 ‘Entailing implementing measures’ must be assessed by reference to the position of the applicant. Clearly, where the purportedly illegal EU act entails national implementing measures, incidental review is only available where the applicant is entitled to bring an action against the implementing measures and may thus cause the national court to make a preliminary reference on validity.466 Since Article 263(4) TFEU must be construed in such a way as to comply with the requirements of effective judicial protection and a complete system of legal remedies against EU acts, the availability of a national judicial avenue for the applicant to challenge the national implementing measures was considered to be a relevant criterion by the Court of Justice when it interpreted the terms ‘not entailing implementing measures’. In Montessori, the Court of Justice held that the question whether a regulatory act entails implementing measures should be assessed by reference to the position of the person pleading the right to bring proceedings under the third limb of the fourth para of Article 263 TFEU. It is therefore irrelevant whether the act in question entails implementing measures with regard to other persons.467

It considered that the Commission’s decision (declaring that a national aid scheme, which benefited the competitors of the applicant, did not constitute State aid) did not entail implementing measures in respect of the applicant, as it would be artificial to require [the applicant] to request the national authorities to grant him that benefit and to contest the refusal of that request before a national court, in order to cause the national court to make a reference to the Court on the validity of the Commission’s decision concerning that measure. 462 Case C-456/13 P T & L Sugars and Sidul Açúcares v Commission [EU:C:2015:284] paras 41–48. 463 For an illustration, see Case C-207/17 Blaas [EU:C:2018:840]. 464 Order of 5 February 2013 in Case T-551/11 BSI v Council [EU:T:2013:60] paras 44–53. 465 Order of 5 February 2013 in Case T-551/11 BSI v Council [EU:T:2013:60] paras 54–57. See also Case T-221/10 Iberdrola v Commission [EU:T:2012:112] para 46; Order of 4 June 2012 in Case T-381/11 Eurofer v Commission [EU:T:2012:273] paras 59–60. 466 See, eg Case C-207/17 Blaas [EU:C:2018:840] regarding the incidental review of an anti-dumping regulation. 467 Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] para 61; see also Case C-456/13 P T & L Sugars and Sidul Açúcares v Commission [EU:C:2015:284] para 32; Case C-384/16 P European Union Copper Task Force v Commission [EU:C:2018:176] paras 38–39; Case C-145/17 P Internacional de Productos Metálicos v Commission [EU:C:2018:839] para 52.

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186 Action for Annulment Montessori, therefore, had standing to challenge the contested decision.468 Considerations given to the applicant’s possibilities to seek incidental review, however, have limits, at least outside the field of State aid, in which the Court recognised the right to operate on an undistorted market (cf para 3.147). In T & L Sugar, the applicants argued that the implementing measures (certificates issued by national authorities) would be addressed to other economic operators, would not be published and would contain confidential information, so that the applicants could not challenge them. In addition, they put forward that they would have no standing before national courts to bring an action against those certificates issued for third parties. The General Court held, however, that the EU Courts cannot be required to assess, on a case-by-case basis, if national procedural rules offer an effective legal remedy that allows the legality of the contested EU act to be called into question.469 On appeal, the Court of Justice added that it was for the Member States to establish a system of legal remedies and procedures which ensure respect for the fundamental right to effective judicial protection.470 The action was dismissed as inadmissible because of the lack of standing. 3.195

Implementing measures are ‘entailed’ if the contested act’s effects materialise through them. The first case that shed light on the meaning of the word ‘entail’ was Telefónica. The applicant challenged a Commission decision declaring incompatible with the common market a Spanish State aid scheme consisting in a tax reduction. The decision also ordered the recovery of the illegal aid. The Court of Justice held that the consequences of the contested decision would be embodied in administrative documents such as a tax notice or the rejection of an application for grant of the tax advantage, which, as such, constituted implementing measures that the contested decision ‘entailed’ within the meaning of Article 263(4) TFEU. The Court added that the applicant would be entitled to challenge those national measures before a national court and thus to seek incidental review.471 In Industrias Químicas del Vallés, the Court of Justice held that a regulatory act of the European Union entails implementing measures where certain legal effects of the act only materialise through those measures. This does not exclude, however, that the act produces, in the legal situation of the applicant, other legal effects that do not depend on the adoption of implementing measures.472 This may imply that the presence of implementing measures ‘entailed’ by the contested act must be examined separately in respect of various contested provisions of the same act.473

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Implementing measures may also be ‘entailed’ if the contested act is not their legal basis. Article 263(4) TFEU does not require, for a measure to be considered an implementing measure ‘entailed’ by the regulatory act, that the regulatory act be the legal basis of that measure. The same measure may be an implementing measure both of the act the provisions of which constitute its legal basis and of a different regulatory act. Where that different regulatory act is contested, the fact that all or part of its legal effects are produced, vis-à-vis the applicant, only through the

468 Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] paras 65–67. 469 Case T-279/11 T & L Sugars and Sidul Açúcares v Commission [EU:T:2013:299] paras 69–73, confirmed on appeal in Case C-456/13 P T & L Sugars and Sidul Açúcares v Commission [EU:C:2015:284] paras 42–50. See also Case C-50/00 P Unión de Pequeños Agricultores v Council [EU:C:2002:462] paras 33–36. 470 Case C-456/13 P T & L Sugars and Sidul Açúcares v Commission [EU:C:2015:284] para 49. 471 Case C-274/12 P Telefónica v Commission [EU:C:2013:852] paras 35–36. 472 Case C-244/16 P Industrias Químicas del Vallés v Commission [EU:C:2018:177] para 52. See also Case C-145/17 P Internacional de Productos Metálicos v Commission [EU:C:2018:839] para 56; Case C-384/16 P European Union Copper Task Force v Commission [EU:C:2018:176] paras 45, 50 and 53. 473 Case C-244/16 P Industrias Químicas del Vallés v Commission [EU:C:2018:177] paras 53 et seq; see also paras 45 et seq.

Applicants and Standing 187 intermediary of the implementing measure means that that measure is ‘entailed’, and there is no standing under the third variant of Article 263(4) TFEU.474 Only the implementing measures entailed by the contested part of the act are relevant. In the context of the assessment of whether the regulatory act entails implementing measures, it is necessary to refer exclusively to the subject matter of the action. Where an applicant seeks only the partial annulment of an act, it is only the implementing measures entailed by the contested part of the act that must be taken into consideration.475

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(iv) Direct Concern and ‘Not Entailing Implementing Measures’ ‘Not entailing implementing measures’ does not always mean that direct concern is present. The Courts have given a unitary interpretation to the notion of ‘direct concern’ in respect of the second and third variants of Article 263(4).476 Establishing direct concern has two conditions: first, the contested act must directly affect the legal situation of the applicant, and secondly, the effect must not depend on the discretion of an implementing authority or the interpretation of intermediary rules (cf para 3.140 et seq).477 The second condition of direct concern is fulfilled inter alia where the contested act does not require any implementing measures to take full effect (cf para 3.157). The concept of ‘not entailing implementing measures’, foreseen in the third variant of Article 263(4) TFEU, prima facie corresponds to this scenario. Therefore, in its initial decisions, the General Court rarely examined the presence of direct concern beyond a formal remark where a regulatory act did not entail implementing measures.478 It is worth mentioning that, in this period, the effect on the economic – rather than the legal – situation of the applicant was sufficient for showing direct concern (cf para 3.145), meaning that the first condition of direct concern almost seamlessly overlapped with that of legal interest in bringing an action (cf para 3.109). The two conditions of direct concern thus appeared to be subsumed, in the context of the third variant of Article 263(4) TFEU, under the requirements of showing an interest to act, on the one hand, and that of ‘not entailing implementing measures’, on the other. The Court of Justice, however, emphasised the importance of the criterion of direct concern and made its conditions more stringent, by requiring the demonstration of an effect on the applicant’s legal situation, beyond showing a mere negative impact on his economic or competitive environment. The most important judgment in this regard is Anicav. The Court of Justice set aside the first instance judgment by ruling that direct concern was missing, therefore the General Court was wrong in stating that the applicants had standing to challenge the regulatory act at issue. The Court of Justice found that the first condition of direct concern was not fulfilled, as the applicants did not show that their legal position was affected by the contested regulation by merely relying

474 Case C-244/16 P Industrias Químicas del Vallés v Commission [EU:C:2018:177] para 72; Case C-145/17 P Internacional de Productos Metálicos v Commission [EU:C:2018:839] para 59; Case C-384/16 P European Union Copper Task Force v Commission [EU:C:2018:176] para 65. 475 C-553/14 P Kyocera Mita Europe v Commission [EU:C:2015:805] para 45; Case C-244/16 P Industrias Químicas del Vallés v Commission [EU:C:2018:177] para 46; Case C-145/17 P Internacional de Productos Metálicos v Commission [EU:C:2018:839] para 53. 476 Case T-262/10 Microban International and Microban (Europe) v Commission [EU:T:2011:623] para 32; Case C-248/12 P Northern Ireland Department of Agriculture and Rural Development v Commission [EU:C:2014:137] para 34. 477 Case C-404/96 P Glencore Grain v Commission [EU:C:1998:196] para 41; Case C-486/01 P National Front v Parliament [EU:C:2004:394] para 34; Case C-15/06 P Regione Siciliana v Commission [EU:C:2007:183] para 31; Joined Cases C-445/07 P and C-455/07 P Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission [EU:C:2009:529] para 45. 478 See, eg Case T-367/10 Bloufin Touna Ellas and Others v Commission [EU:T:2013:97] para 20.

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188 Action for Annulment on the fact that the contested act placed them at a competitive disadvantage479 (cf para 3.145). It is important to mention that the Court of Justice expressly stated in Montessori that direct concern can be established under less stringent conditions in the field of State aid than in that of common agricultural policy. In the State aid field, the right to operate on an undistorted market exists, therefore the applicant’s legal situation can be affected if he shows that the contested measure affects its competitive position negatively480 (cf para 3.145). Conversely, no such right has been recognised when it comes to bringing actions for annulment against acts adopted in the field of common agricultural policy. Accordingly, the condition of direct concern is more difficult to satisfy. 3.199

Example: Northern Ireland Department of Agriculture and Rural Development. In some cases, the effect on the legal situation of the applicant by the contested act (the first condition of direct concern) does not depend on a national implementing measure ‘entailed’ by the regulatory act, but on some other national measures which have no connection with the contested act. In Northern Ireland Department of Agriculture and Rural Development, the issue of direct concern was isolated from that of ‘entailing implementing measures’. The applicant brought an action for partial annulment of a Commission decision that excluded from the EU funding some agricultural subsidies paid by the Member States. The UK decided back in 2005 that European Union receipts and disallowances were to be passed on to devolved administrations. The General Court held that only the Member States were affected by the Commission’s decision not to allow certain expenditure. Therefore, while the decision undoubtedly had consequences for the applicant’s budget (as it is an organ of devolved administration), those consequences were not the result of European Union legislation or the contested decision, but of the UK’s decision alone, as they resulted from passing on both EU receipts and disallowances to the applicant. The General Court thus decided that the latter was not directly concerned by the contested act.481

3.1.4.8. The Standing of Associations 3.200

General. The case law of the Courts recognises the standing of associations to bring actions for annulment against acts not addressed to them in two scenarios. First, there are situations where the association, by bringing its action, substitutes itself for one or more members that it represents, and therefore has standing if at least one of its members has it under Article 263(4) TFEU. In this case, the association acts as the representative of its members. Clearly, allowing an association to act in the name of its many members relieves the General Court of the burden of handling multiple applications and is in line with the requirement of sound administration of justice.482 Secondly, an association may also have a genuine right, ie one not based on the rights of its members, to bring an action if it is differentiated from other natural or legal persons by reason of the impact of the contested act on its own interests as an association, in particular because

479 Joined Cases C-455/13 P, C-457/13 P and C-460/13 P Confederazione Cooperative Italiane and Others v Anicav and Others [EU:C:2015:616] paras 49–55. 480 Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] paras 51–52. 481 Order of 6 March 2012 in Case T-453/10 Northern Ireland Department of Agriculture and Rural Development v Commission [EU:T:2012:106] paras 48–55, confirmed on appeal in Case C-248/12 P Northern Ireland Department of Agriculture and Rural Development v Commission [EU:C:2014:137]. 482 Joined Cases T-447/93 to T-449/93 AITEC and Others v Commission [EU:T:1995:130] para 60; Order of 29 March 2012 in Case T-236/10 Asociación Española de Banca v Commission [EU:T:2012:176] para 24. See also Case C-384/16 P European Union Copper Task Force v Commission [EU:C:2018:176] para 87.

Applicants and Standing 189 its position as a negotiator has been affected by the act.483 A specific scenario of this second possibility is where a legal provision expressly confers on the association procedural rights and the latter is acting in their defence.484 (i) Standing Derived from that of Members Standing of members and representing members are cumulative conditions. If at least one of the members of the association would have an interest to act485 and the locus standi to bring an action for annulment individually under Article 263(4) TFEU, the association has an interest to act and the standing to bring an action if it represents those members.486 The Courts examine, first, the standing of the members, and secondly, the question whether the applicant association indeed represents those members who have standing. Confservizi provides an example for such an assessment. The applicant was a confederation of public and private operators active in the local public services sector. In accordance with its articles of association, its functions included the representation, promotion and protection of those undertakings. It contested a Commission decision addressed to Italy that qualified an income tax exemption as State aid incompatible with the common market. The General Court examined whether some of the members of Confservizi were directly and individually concerned by the decision. It held that Confservizi did not bring sufficient evidence to show that at least some of its members had to reimburse the aid received, which could have demonstrated individual concern, and Confservizi thus did not show the standing of its members. On the other hand, in parallel cases brought by some members of Confservizi, those members did establish individual concern and had the standing to seek the annulment of the contested decision.487 However, the General Court ruled in Confservizi that those members brought cases on their own, meaning that Confservizi was not representing them before the General Court.488 Therefore, Confservizi’s standing could not be derived from that of its members. The same approach was adopted in Asociación Española de Banca, in which the General Court explicitly stated that an association, acting as the representative of its members, had locus standi only where those members that have standing did not themselves bring an action.489

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Regulatory acts – second or third variant of Article 263(4) TFEU? An association may bring an action for annulment against a regulatory act not addressed to it under the second or the third variant of Article 263(4) TFEU. To determine whether the act ‘entails’ implementing measures, the position of its members is taken into account (see also para 3.194). The mere fact that the

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483 Case C-384/16 P European Union Copper Task Force v Commission [EU:C:2018:176] para 88 and the case law cited. 484 Joined Cases C-67/85, C-68/85 and C-70/85 Van der Kooy and Others v Commission [EU:C:1988:38] paras 21–24; Case C-321/95 P Greenpeace Council and Others v Commission [EU:C:1998:153] paras 14 and 29; Case T-292/02 Confservizi v Commission [EU:T:2009:188] para 52; Order of 5 May 2009 in Case C-355/08 P WWF-UK v Council [EU:C:2009:286] para 42. See also A H Türk, Judicial Review in EU Law (Edward Elgar Publishing, Cheltenham, 2010) 95–96; K Hasselbach, ‘Der Schutz von Verbandsinteressen vor dem EuGH’ (1996) Zeitschrift für Zivilprozess 195–219. 485 Case T-189/08 Forum 187 v Commission [EU:T:2010:99] paras 61 et seq. 486 Case T-380/94 AIUFASS and AKT v Commission [EU:T:1996:195] para 50; Order of 18 September 2006 in Case T-350/03 Wirtschaftskammer Kärnten and best connect Ampere Strompool v Commission [EU:T:2006:257] para 25; Joined Cases T-254/00, T-270/00 and T-277/00 Hotel Cipriani and Others v Commission [EU:T:2008:537] paras 113–114; Joined Cases T-227/01 to T-229/01, T-265/01, T-266/01 and T-270/01 Territorio Histórico de Álava – Diputación Foral de Álava and Others v Commission [EU:T:2009:315] paras 107–118; Order of 27 April 2016 in Case T-310/15 European Union Copper Task Force v Commission [EU:T:2016:265] para 19. 487 See, eg Case T-297/02 ACEA v Commission [EU:T:2009:189] para 52. 488 Case T-292/02 Confservizi v Commission [EU:T:2009:188] para 55. 489 Order of 29 March 2012 in Case T-236/10 Asociación Española de Banca v Commission [EU:T:2012:176] para 24.

190 Action for Annulment association was the sole negotiator of all producers in a given sector during the administrative procedure does not show the absence of implementing measures entailed by the act. If the contested act entails implementing measures in respect of the members of the association, the association must show either the direct and individual concern of some of the members it represents or prove an interest of its own (cf para 3.203 et seq).490 (ii) Association’s Standing Based on an Interest of its Own 3.203

General. Irrespective of the standing of its members, the action brought by an association may be admissible if the applicant proves an interest of its own, in particular because its position as a negotiator has been affected by the contested act.491 This is not the case, however, where the applicant association has not assumed the role of negotiator and where the relevant legislation does not accord it any procedural rights.492 The question of whether such an interest is proven is often examined under the criteria of individual concern.

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Was the association a negotiator or just consulted? The case law is nuanced as regards the question of whether an association was indeed a negotiator or simply participated in consultations led by the institution or body that adopted the contested act. In the CIRFS case, concerning a Commission decision on State aid, the applicant was individualised by the fact that it was the Commission’s interlocutor with regard to the introduction of a ‘discipline’ concerning aid in the synthetic fibre sector, and also to its extension and adaptation, and actively pursued negotiations with the Commission during the administrative procedure, in particular by submitting written observations and by keeping in close contact with the responsible departments of the Commission.493 Conversely, in Eurofer (cf para 3.186), the General Court rejected the application as inadmissible. Eurofer is an association which represented the European steel manufacturing industry in a broad consultation with the Commission regarding emissions trading, in which many other industry branches were also involved. The General Court observed that it did not actively pursue negotiations with the Commission during the administrative procedure and, consequently, could not show individual concern (and thus standing) based on an interest of its own.494

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The negotiations must be ‘intimately linked’ with the subject matter of the contested act. In order for an applicant association to be recognised as being individually concerned, it must be in a particular situation, in which it occupies a clearly circumscribed position as negotiator that is intimately linked to the actual subject matter of the contested act, thus placing it in a factual situation which distinguishes it from all other persons.495 In Kwekerij van der Kooy, the Court of Justice acknowledged the standing of a professional public-interest body which not only had taken an active part in the procedure, inter alia by submitting written comments to the

490 Order of 27 April 2016 in Case T-310/15 European Union Copper Task Force v Commission [EU:T:2016:265] para 24; Case C-384/16 P European Union Copper Task Force v Commission [EU:C:2018:176] 66–70. 491 Case T-189/08 Forum 187 v Commission [EU:T:2010:99] para 58; Case T-182/10 Aiscat v Commission [EU:T:2013:9] para 48; Case T-373/15 Ja zum Nürburgring v Commission [EU:T:2019:432] para 60. 492 Order of 22 July 2005 in Case T-376/04 Polyelectrolyte Producers Group v Council and Commission [EU:T:2005:297] para 40; Order of 27 April 2016 in Case T-310/15 European Union Copper Task Force v Commission [EU:T:2016:265] para 21. 493 Case C-313/90 CIRFS and Others v Commission [EU:C:1993:111] paras 29–30. 494 Order of 4 June 2012 in Case T-381/11 Eurofer v Commission [EU:T:2012:273] paras 22–23. 495 Case T-373/15 Ja zum Nürburgring v Commission [EU:T:2019:432] para 65 and the case law cited.

Applicants and Standing 191 Commission, but also had negotiated, in the interests of the professionals concerned, gas tariffs that the Commission then considered to be State aid incompatible with the internal market, and that, as such, was one of the parties to the contract which established the tariffs disallowed by the Commission.496 In the CISAC case, the applicant (International Confederation of Societies of Authors and Composers) was an umbrella organisation that represented collecting societies497 operating inter alia in EU Member States and coordinated their work. CISAC and its EU members brought separate actions for annulment against a Commission antitrust decision stating that the collecting societies infringed Article 101 TFEU by delineating EU territory and hindering cross-border licensing. The contested decision was a bundle of individual decisions addressed to the collecting societies but not to CISAC. Therefore, the collecting societies had locus standi under the first variant of Article 263(4) TFEU, and acted before the General Court in their own name, while CISAC had to establish that it was directly and individually concerned by an act addressed to others. The General Court held that CISAC had standing to bring a separate action for annulment on the grounds of its role as a facilitator. In particular, CISAC participated in the administrative procedure as an important interlocutor of the Commission and was involved in the negotiation of commitments which could have led the Commission to refrain from adopting a decision finding an infringement. Moreover, CISAC was also involved in the administrative procedure as a facilitator of cooperation between the collecting societies. Therefore, as regards the administrative procedure, CISAC was in a clearly defined position as negotiator which was intimately linked to the actual subject matter of the decision, thus placing it in a factual situation which distinguished it from all other persons.498 At the same time, it was held in other cases that the fact that the applicant trade association had submitted comments during the formal State aid investigation procedure499 or that it had lodged the complaint that initiated that procedure500 was not sufficient to establish individual concern.501

3.1.4.9. The Standing of Trade Unions and Consortia Trade unions. The rules on standing of associations are also applicable to trade unions. They may bring class actions in the name of their members, as is often the case of trade unions representing EU staff. Trade unions may also establish standing of their own right. In particular, they may be individually concerned by an act if they occupied a clearly circumscribed position as a negotiator which was intimately linked to the actual subject matter of the decision, thus placing them in a factual situation which distinguished it from all other persons.502 However, as was held in Comité d’entreprise, the mere fact that the trade unions had the status of negotiators in respect of social aspects (such as the staffing and salary structure) within the company which received State aid did not suffice to show that they were individually concerned by the Commission decision declaring that aid illegal and ordering its recovery. As social aspects played a minor role in

496 Joined Cases C-67/85, C-68/85 and C-70/85 Van der Kooy and Others v Commission [EU:C:1988:38] paras 20–24. 497 The collecting societies manage inter alia authors’ rights in musical works. 498 Case T-442/08 CISAC v Commission [EU:T:2013:188] paras 75–76. 499 Order of 29 March 2012 in Case T-236/10 Asociación Española de Banca v Commission [EU:T:2012:176] para 46. 500 Case C-319/07 P 3F v Commission [EU:C:2009:435] paras 94–95. 501 See also Case C-78/03 P Commission v Aktionsgemeinschaft Recht und Eigentum [EU:C:2005:761] paras 53–59; Case T-292/02 Confservizi v Commission [EU:T:2009:188] paras 56–58; Case C-384/16 P European Union Copper Task Force v Commission [EU:C:2018:176] paras 88–92; Case T-373/15 Ja zum Nürburgring v Commission [EU:T:2019:432] para 69. 502 Case C-106/98 P Comité d’entreprise de la Société française de production and Others v Commission [EU:C:2000:277] paras 43–46.

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192 Action for Annulment the Commission’s appraisal, the applicants’ status as a negotiator only had a tenuous link to the subject matter of the decision.503 In 3F, the applicant Danish trade union brought a complaint against Danish tax measures. The Court of Justice examined whether it had the standing to challenge a Commission decision not raising objections against those tax measures under State aid rules. It considered that the individual concern of 3F could also be established on the ground that it was in a competitive position in relation to other trade unions operating in the same market, possibly favoured by the measure, albeit the Court’s conclusion as regards standing was based also on other considerations.504 3.207

Members of consortia. A consortium constitutes an ad hoc structure whose members remain visible, and the companies concerned must all be regarded as the addressees of the contested decision. Therefore, a member of the consortium, as addressee of the contested decision, is entitled to challenge that decision in accordance with the conditions laid down by Article 263(4) TFEU.505

3.1.4.10. Partial Interest to Act, Partial Standing, Partial Annulment 3.208

Bundle of individual decisions – each addressee may only request annulment insofar as he is concerned. An individual applicant does not have the right to request the annulment, in its entirety, of a decision consisting in a bundle of individual decisions which is addressed to him as well as to other natural or legal persons. He is only entitled to challenge that decision insofar as he is concerned, since his legal interest and standing to bring proceedings is limited to seeking the annulment of the part of the decision that adversely affects him (cf para 3.109).506 Besides, the right to bring an action for annulment must be personally exercised by the other addressees (cf para 3.135). Another reason behind the limitation of the right to challenge bundles of individual decisions is derived from the principle of legal certainty, namely that the annulment of a decision imposing obligations on a number of entities must not operate to the advantage of those who did not bring an action or whose action is inadmissible507 (cf para 3.329), save the specific issue of competition fines imposed on both a subsidiary and its parent company (cf para 4.193).508 The limitation of the request for annulment must appear in the relevant head of claim as put forward in the application (cf para 4.170). A typical formulation is that ‘the applicant claims that the Court should annul the contested decision insofar as it refers to it’.509 Another formula, where several applicants bring an action for annulment together, is that they request the General Court to ‘annul the contested decision insofar as it applies to them’.510 Such situations often occur in the field of antitrust, where the Commission may establish the participation of several companies in

503 Case C-106/98 P Comité d’entreprise de la Société française de production and Others v Commission [EU:C:2000:277] paras 50–53. 504 Case C-319/07 P 3F v Commission [EU:C:2009:435] paras 59, 100 et seq. 505 Case T-554/08 Evropaïki Dynamiki v Commission [EU:T:2012:194] para 32. 506 Case T-23/09 CNOP and CCG v Commission [EU:T:2010:452] paras 23–26. 507 Case C-310/97 P Commission v AssiDomän Kraft Products and Others [EU:C:1999:407] para 63; Case T-112/05 Akzo Nobel and Others v Commission (vitamin products cartel) [EU:T:2007:381] para 32. 508 Case C-597/13 P Total v Commission (candle wax cartel) [EU:C:2015:613] paras 31–43; Case C-286/11 P Commission v Tomkins (copper alloy fittings cartel) [EU:C:2013:29]. Under this case law, the General Court has to take into account the successful arguments raised by the subsidiary which result in the reduction of the fine imposed on the subsidiary, when ruling on the application separately introduced by the parent company, even if the latter did not raise those arguments before the General Court. This case law conflicts with Art 76(d) of the GC RoP, under which the ‘application shall contain … the pleas in law and arguments relied on’. 509 See, eg Case T-41/05 Alliance One v Commission (Italian raw tobacco cartel) [EU:T:2011:586] para 71. 510 Case T-343/06 Shell Petroleum and Others v Commission (Dutch bitumen cartel) [EU:T:2012:478] para 27.

Applicants and Standing 193 the same illicit agreement or concerted practice (see eg the CISAC case, cf para 3.204) and impose behavioural remedies and/or fines on them in a single decision. If an applicant claims broader annulment than it is entitled to seek, the Courts will declare the relevant head of claim partially inadmissible and also reject on the same formal ground all pleas in law put forward in support of such a too broadly formulated head of claim.511 Acts of general application – individual applicants may only request annulment insofar as the act applies to them. The same principle applies in situations where an individual applicant brings an action for annulment against an act of general application. An individual applicant only has the interest to act and the standing to seek the annulment of such an act insofar as it applies to him. Typical situations include actions against anti-dumping regulations,512 which are regulatory acts in the sense of Article 263(4) TFEU. If the applicant is successful, the quashed act of general application remains valid and applicable as regards all other operators who did not challenge it (although they had the right to direct review) or did not succeed in showing its illegality513 (cf para 3.329).

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Standing limited to the right to seek partial annulment – conditions related to the second and third variants of Article 263(4) TFEU. The standing may be limited ratione materiae, that is, the applicant may only have the right to challenge certain provisions of an act of general application. It follows from Codornìu that an applicant can be individually concerned by a certain provision of a measure of general application.514 Under the third variant of Article 263(4) TFEU, direct concern and the lack of implementing measures ‘entailed’ by the contested regulatory act must be established in respect of the provisions whose annulment is sought by the applicant (cf para 3.195 in fine and para 3.197).515 The application will be rejected as inadmissible as regards those heads of claims and pleas in law that concern provisions of the contested act which cannot be challenged by the applicant by reason of absence of standing.

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Severability. Where the applicant has the standing to challenge certain provisions of a measure of general application only, lack of severability may be a further obstacle to admissibility. Under the case law, partial annulment of a Union act is possible only if the elements whose annulment is sought may be severed from the remainder of the act. The requirement of severability is not met where partial annulment of a measure would have the effect of changing its substance.516 Moreover, the question whether partial annulment would alter the substance of the contested measure is an objective criterion, and not a subjective criterion linked to the political intention of the authority which adopted the measure at issue.517 The Du Pont de Nemours case provides an illustration in this regard. The applicants requested the annulment of ‘Commission Directive 2006/133/EC of 11 December 2006 amending Council Directive 91/414/EEC to include flusilazole as active substance insofar as it includes flusilazole in Annex I to Directive 91/414 in respect of only four

3.211

511 Case T-23/09 CNOP and CCG v Commission [EU:T:2010:452] para 26. 512 See, eg Case T-107/04 Aluminium Silicon Mill Products v Council [EU:T:2007:85] para 11 and the operative part where the General Court ‘annuls Article 1 of Council Regulation (EC) No 2229/2003 … insofar as it imposes an anti-dumping duty on the applicant’. 513 Case C-239/99 Nachi Europe [EU:C:2001:101]. 514 Case C-309/89 Codorníu v Council [EU:C:1994:197] paras 21–22 (cf para 3.170). 515 Case C-244/16 P Industrias Químicas del Vallés v Commission [EU:C:2018:177] paras 53 et seq; see also paras 45 et seq. 516 Case C-29/99 Commission v Council (Convention on Nuclear Safety) [EU:C:2002:734] paras 45–46; Case C-239/01 Germany v Commission (EAGGF) [EU:C:2003:514] paras 33–34; Case C-540/03 Parliament v Council (family reunification) [EU:C:2006:429] paras 27–28. 517 Case C-244/03 France v Parliament and Council (testing on animals) [EU:C:2005:299] para 14.

194 Action for Annulment crops and for a period of 18 months’.518 The General Court ruled that the limitations (‘only four crops and for a period of 18 months’) contested by the applicants constituted mandatory and essential conditions for the inclusion of flusilazole in the annex in question. Therefore, the modification of those conditions as a result of a partial annulment would have changed the actual substance of the contested directive. Consequently, the General Court dismissed the application as inadmissible on the ground of the lack of severability.519 3.212

Partial interest to act limits the right to review to seeking partial annulment. The interest to act has to be shown in respect of all the provisions or enacting terms whose annulment is sought (cf paras 3.113 and 3.125). In Arkema, the applicant challenged the imputation of liability for its cartel participation to its parent company, Elf Aquitaine. The General Court ruled that the fact that Elf Aquitaine was held, as a result of that imputation, jointly and severally liable to pay the cartel fine had no bearing on the amount of the fine imposed on the applicant. Therefore, the annulment of the contested decision in this respect could procure no benefit to Arkema. As a consequence, the relevant plea in law was dismissed as inadmissible.520

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Where pleas in law may only justify partial annulment, the relevant head of claim has to be limited accordingly. An applicant may not validly request the General Court to annul, in its entirety, a decision addressed to him (or a bundle of individual decisions entirely insofar as he is concerned) if he only puts forward pleas in law which, if successful, only justify partial annulment. In such a case, possibly in response to an objection to admissibility raised by the defendant, the General Court will limit the extent of the head of claim related to annulment.521 If the General Court fails to do so and annuls the contested decision in its entirety (insofar as it concerns the applicant), the Court of Justice may set aside the first instance judgment.522

3.1.4.11. Alternative Judicial Remedies in the Case of Lack of Standing 3.214

Incidental review. Applicants, who have no standing to challenge an act of general application, may bring an action for annulment against the EU measure implementing that act and raise a plea of illegality against that act523 (cf Chapter 3.7. Plea of Illegality). Where the act entails national implementing measures, the latter may be challenged before national courts and the applicant may cause those courts to make a preliminary reference on validity524 (cf Chapter 3.8. Preliminary Rulings on Validity of EU Measures).

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Action for damages. The action for damages under Articles 268 and 340(2) TFEU is an independent form of action; hence a declaration of inadmissibility of the application for annulment does not automatically render a parallel action for damages inadmissible.525 Individual applicants who lack standing under Article 263(4) TFEU to directly contest certain Union acts or measures still have the right to seek remedy to an illegal conduct of an EU institution or body via

518 Case T-31/07 Du Pont de Nemours (France) and Others v Commission [EU:T:2013:167] introductory part of the judgment. 519 Case T-31/07 Du Pont de Nemours (France) and Others v Commission [EU:T:2013:167] paras 83–86. 520 Case T-343/08 Arkema France v Commission (sodium chlorate cartel) [EU:T:2011:218] paras 42–49. 521 Case T-343/08 Arkema France v Commission (sodium chlorate cartel) [EU:T:2011:218] paras 34–38. 522 Case C-441/11 P Commission v Verhuizingen Coppens (Belgian removal services cartel) [EU:C:2012:778] para 54. 523 Case T-526/10 Inuit Tapiriit Kanatami and Others v Commission (Inuit II) [EU:T:2013:215]. 524 See, eg Case C-207/17 Blaas [EU:C:2018:840] regarding the incidental review of an anti-dumping regulation. 525 Case C-5/71 Zuckerfabrik Schöppenstedt v Council [EU:C:1971:116] para 3; Case C-175/84 Krohn ImportExport v Commission [EU:C:1986:85] para 32; Case T-31/07 Du Pont de Nemours (France) and Others v Commission [EU:T:2013:167] paras 105 and 114.

Time Limits 195 an action for damages.526 However, an action for damages may be declared inadmissible when it concerns the same instance of illegality and has the same financial goal as the action for annulment which the applicant has failed to bring in good time527 (cf para 3.239). On the other hand, as was held in T & L Sugar, if the applicant requests broader reparation of damages than the financial consequence of the annulment would be and relies on a broader or different illegal conduct of the institution or body than the adoption of the contested act, his action for damages may be admissible, even if the action for annulment, brought in the same application, is dismissed as inadmissible because of the lack of standing.528

3.1.5. Formal Requirements General. An action for annulment must satisfy the general formal requirements that apply to all direct actions (cf Subsection 4.2.2.1. Formal Requirements). In this section, only the formal requirements which are peculiar to an action for annulment are discussed.

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Identification of the contested act. By virtue of Article 21(1) of the Statute, Article 120 of the Rules of Procedure of the Court of Justice (CJ RoP), and Article 76 of the Rules of Procedure of the General Court (GC RoP), the application must state the subject matter of the dispute (cf paras 4.108 and 4.120). The act whose annulment is sought must be annexed to the application.529 The identification of the contested act must be sufficiently clear and precise to enable the defendant to prepare his defence and the Courts to give a ruling, if necessary, without other information (cf para 4.141),530 failing which the action is inadmissible. In the case of informal decisions communicated in a letter, applicants often identify that letter to be the contested act, while defendant institutions or bodies argue that the decision was taken earlier. The Courts have a flexible approach in this respect, in line with the case law under which the substance and not the form of the act matters (cf para 3.25). They might either consider that the letter in question is the contested decision or state that the contested decision, albeit adopted earlier, was contained in that letter, and refer in further parts of the judgment simply to the ‘contested decision’.

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Where the contested act is amended or replaced during the Court procedure. Where the contested act is amended or replaced by another measure during the procedure before the EU Courts, this is to be considered a new factor allowing the applicant to change the subject matter of the case as identified in the application, by adapting his claims and pleas in law. The modification of the application must be made by a separate document531 (cf paras 4.161–4.167).

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3.1.6. Time Limits 3.1.6.1. Overview The action must be submitted within two months plus 10 days. Under Article 263(6) TFEU, an action for annulment must be brought ‘within two months of the publication of the measure, 526 Case T-279/11 T & L Sugars and Sidul Açúcares v Commission [EU:T:2013:299] paras 105–112. 527 Case C-310/97 P Commission v AssiDomän Kraft Products and Others [EU:C:1999:407] para 59; Case T-279/11 T & L Sugars and Sidul Açúcares v Commission [EU:T:2013:299] para 104. 528 Case T-279/11 T & L Sugars and Sidul Açúcares v Commission [EU:T:2013:299] paras 105–112. 529 Statute, Art 21(2). 530 Order of 29 November 1993 in Case T-56/92 Koelman v Commission [EU:T:1993:105] para 19. 531 GC RoP, Art 68(1)–(2).

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196 Action for Annulment or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be’. This deadline is extended by 10 days on account of distance532 and expires at midnight (Luxembourg time)533 on the tenth day. While these rules might appear simple, late lodging of applications is one of the most frequent grounds of inadmissibility and has caused the summary dismissal of many hundreds of actions over the years. The specific rules regarding the time limits foreseen in Article 263(6) TFEU are examined in this section; the general rules on the calculation of deadlines applicable to all submissions are presented in Section 4.1.7. Time limits. 3.220

Respect of time limits is a matter of public policy. The time limit for bringing actions is a matter of public policy. The strict application of procedural rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice.534 The time limits for bringing proceedings are not at the discretion of either the Courts or the parties,535 and no exceptions from these mandatory rules are allowed even if the applicant relies on fundamental rights536 or on the principle of effective judicial protection.537 The applicant may only be allowed to submit its application after the expiry of the deadline foreseen in Article 263(6) TFEU where it succeeds in proving that force majeure or an excusable error prevented him from lodging it in due time (cf paras 4.95–4.97). The Courts examine the respect of time limits ex officio, and may dismiss the application as inadmissible by reasoned order without requesting the applicant to submit observations on the issue of the lateness of the application538 (cf paras 4.98–4.99; see also Section 5.7.1. Inadmissibility).

3.221

Time limits verified in respect of each applicant and contested act. The Courts examine the observance of time limits in respect of every applicant and every contested act separately if the action for annulment is filed by several applicants and/or against several Union acts.539 If the application only complies with the time limits in respect of some of the applicants and/or some of the contested acts, while it is late regarding others, the Courts must reject it, accordingly, as partially inadmissible.540

3.1.6.2. Publication 3.222

General. Article 297 TFEU specifies those acts whose publication in the Official Journal is compulsory. These are legislative acts (mainly regulations and directives, as well as decisions adopted via a legislative procedure), non-legislative regulations, non-legislative directives addressed to

532 CJ RoP, Art 51; GC RoP, Art 60. 533 Order of 1 April 2011 in Case T-468/10 Doherty v Commission [EU:T:2011:133] paras 4 and 14. 534 Case C-246/95 Coen v Belgium [EU:C:1997:33] para 21; Case C-426/10 P Bell & Ross v OHIM [EU:C:2011:612] para 43; Order of 13 November 2012 in Case T-278/11 ClientEarth and Others v Commission [EU:T:2012:593] para 30. 535 Case T-514/93 Cobrecaf and Others v Commission [EU:T:1995:49] para 40; Order of 25 June 2003 in Case T-287/02 AIT v Commission [EU:T:2003:177] para 20; Order of 13 November 2012 in Case T-278/11 ClientEarth and Others v Commission [EU:T:2012:593] para 30. 536 Case C-229/05 P PKK and KNK v Council [EU:C:2007:32] para 101. 537 Order of 17 May 2002 in Case C-406/01 Germany v Parliament and Council (ban on manufacturing cigarettes for export) [EU:C:2002:304] para 20. 538 CJ RoP, Art 53(2); GC RoP, Art 126. 539 See, eg Order of 12 October 2018 in Case T-416/18 Hungary Restaurant Company Kereskedelmi és Szolgáltató v Commission [EU:T:2018:705] para 7. 540 Case T-404/08 Fluorsid and Minmet financing v Commission [EU:T:2013:321] paras 47–57. See also Case C-229/05 P PKK and KNK v Council [EU:C:2007:32] paras 99–101.

Time Limits 197 all Member States and decisions which do not specify to whom they are addressed. However, other acts may also be published in the Official Journal besides being notified to their addressees, possibly in a summary form. Specific case law applies to types of acts whose publication is not compulsory but which are nonetheless published according to the established practice of the institutions or bodies (cf para 3.227). Publication on the official website of an EU institution or body may be assimilated to publication in the Official Journal (cf para 3.228). Calculation of the time limit – 14 days plus two months plus 10 days. Article 50 of the CJ RoP and Article 59 of the GC RoP provide that if the time limit allowed for initiating proceedings runs from the publication of the contested measure, that time limit shall be calculated from the end of the fourteenth day after publication.541 Importantly, this rule has to be interpreted in such a way that the two-month period to bring an action for annulment ends on the day which has the same number as the fourteenth day counted from the end of the day of the publication (even if it is a Saturday, Sunday or public holiday),542 and not as the fourteenth day counted from the end of the day that follows that of the publication.543 Further, 10 full days must be added on account of distance, and the deadline for bringing an action for annulment expires at midnight (Luxembourg time)544 on the tenth day, or on the next working day if the tenth day is a Saturday, Sunday545 or an official holiday of the Court.546 As an illustration, in Germany v Parliament and Council (ban on manufacturing cigarettes for export), the publication day was 18 July 2001, the fourteenth day counted from publication was 1 August 2001 (14 full days were thus added, as counted from the end of 18 July 2001), the two-month period ended on 1 October 2001 (which has the same number as 1 August) and the deadline was extended by 10 full days on account of distance, expiring on 11 October 2001 at midnight.547

3.223

Where publication in the Official Journal is required by EU law. If the publication of the contested act in the Official Journal is foreseen in the Treaties (cf para 3.222), the time limit to bring an action for annulment always runs from the end of the fourteenth day as counted from the end of the day of publication. The applicant cannot validly argue that his direct and individual concern by the act only materialised later. The time limit to bring an action for annulment cannot be extended on these grounds. Arguments derived from effective judicial protection are

3.224

541 Joined Cases C-465/02 and C-466/02 Germany and Denmark v Commission (registration of ‘feta’ as a designation of origin) [EU:C:2005:636] para 29. 542 CJ RoP, Art 49(1)(b) and GC RoP, Art 58(1)(b) provide that ‘a time limit expressed in weeks, months or years shall end with the expiry of whichever day in the last week, month or year is the same day of the week, or falls on the same date, as the day during which the event or action from which the time limit is to be calculated occurred or took place; if, in a time limit expressed in months or years, the day on which it should expire does not occur in the last month, the time limit shall end with the expiry of the last day of that month’. 543 Order of 19 January 2001 in Case T-126/00 Confindustria and Others v Commission [EU:T:2001:17]; Order of 17 May 2002 in Case C-406/01 Germany v Parliament and Council (ban on manufacturing cigarettes for export) [EU:C:2002:304] paras 11–19. 544 Order of 1 April 2011 in Case T-468/10 Doherty v Commission [EU:T:2011:133] paras 4 and 14. 545 Order of 12 October 2018 in Case T-416/18 Hungary Restaurant Company Kereskedelmi és Szolgáltató v Commission [EU:T:2018:705] para 7: the time limit (including the extension on account of distance) ended on 4 March 2018, which was a Sunday, thus it was extended until the end of Monday 5 March 2018. 546 GC RoP, Art 58(3): ‘The list of official holidays drawn up by the Court of Justice and published in the Official Journal of the European Union shall apply to the General Court.’ That list is also available through the website of the Court at https://curia.europa.eu/jcms/jcms/Jo2_7031/en/ (eg for the years 2019–2020: Decision of the Court of Justice of 30 April 2019 concerning the official holidays and the judicial vacations). 547 Order of 17 May 2002 in Case C-406/01 Germany v Parliament and Council (ban on manufacturing cigarettes for export) [EU:C:2002:304] paras 11–19.

198 Action for Annulment irrelevant, since legal certainty in the EU legal order must be ensured.548 Similarly, if the full version of the contested act was published in the Official Journal, even if such publication is not required by the Treaties but only by secondary legislation, the time limit starts to run on the fourteenth day following that of the publication. This is so even if the applicant only became aware of the act later, since ‘becoming aware of the act’ is only a starting point which is subsidiary to that defined by the publication in the Official Journal549 (cf para 3.232). 3.225

Summary Official Journal publication – deadline starts when full version is received. The institutions or bodies may sometimes publish only a summary of certain acts in the Official Journal. In Noord-West Brabant, the contested act was a decision authorising State aid which was only notified to its addressee, the Member State granting the aid, while interested parties were informed of the decision via a summary publication in the Official Journal. The General Court ruled that the two-month period referred to in Article 263(6) TFEU did not start to run until the interested party had an exact knowledge of the content and grounds of the measure in question (which allowed it to exercise its right of action), that is, until the party received the full version of the act. It is the responsibility of a person who becomes aware of the existence of a measure concerning him to request the full text from the institution or body within a reasonable period. However, if the party obtained the full version from another source earlier (normally from the addressee), the deadline has to be calculated from that earlier date.550

3.226

Summary Official Journal publication and full version made available on the internet is assimilated to publication in the Official Journal. The fact that the institution or body places the full text of a decision on its website, combined with publication of a summary notice in the Official Journal enabling interested parties to identify the decision in question and notifying them of the possibility of online access to the full text (usually by a link inserted in the summary Official Journal publication), is considered a publication within the meaning of Article 263(6) TFEU.551 Such a publication triggers the deadline foreseen in Article 263(6) TFEU, which starts to run from the fourteenth day following the day of the publication. The applicant cannot validly rely on the fact that it learnt about the contested act or obtained its full version – possibly via national authorities – only later if that full version was publicly available on the institution’s or body’s website on the day of release of the summary Official Journal publication.552

3.227

If publication is obligatory or ‘of established practice’, its date prevails irrespective of the earlier reception of the full text by the applicant. Where the publication of a measure is provided for under European Union law, it is only from the time of publication that the persons concerned are able to ascertain unequivocally what their rights and obligations are and to take the necessary measures accordingly. Consequently, in order to allow the persons concerned sufficient time to challenge a published measure of the EU in full knowledge of the facts, the time limit for bringing an action against such a measure starts to run only upon its publication.553 Therefore, an earlier date on which the applicant became aware of the contested act is not relevant 548 Order of 14 March 2019 in Case C-700/18 P Hungary Restaurant Company and Evolution Gaming Advisory v Commission [EU:C:2019:215] paras 17–27. 549 Order of 25 November 2008 in Case C-501/07 P S.A.BA.R. v Commission [EU:C:2008:652] paras 22–23. 550 Joined Cases T-432/93, T-433/93 and T-434/93 Socurte and Others v Commission [EU:T:1995:43] paras 48–49; Case T-188/95 Waterleiding Maatschappij ‘Noord-West Brabant’ v Commission [EU:T:1998:217] paras 111–112; Order of 21 November 2005 in Case T-426/04 Tramarin v Commission [EU:T:2005:405] para 48. 551 Case T-17/02 Olsen v Commission [EU:T:2005:218] para 80; Order of 21 November 2005 in Case T-426/04 Tramarin v Commission [EU:T:2005:405] para 53. 552 Order of 21 November 2005 in Case T-426/04 Tramarin v Commission [EU:T:2005:405] para 56. 553 Case C-626/11 P PPG and SNF v ECHA [EU:C:2013:595] paras 32–33.

Time Limits 199 for the calculation of the time limit, since ‘becoming aware of the act’ is a subsidiary criterion (cf para 3.232). This rule is extended to situations in which the publication of the act in the Official Journal is not required by EU law but is nonetheless the established practice of the institution or body concerned. In such cases as well, the date of publication triggers the deadline, since the criterion of the date on which the applicant became aware of the measure is subsidiary to the date of publication, and the applicant can legitimately expect that the measure in question will be published.554 The fact that the applicant obtained a copy of the full version of the contested act – possibly from the institution or body itself – before the publication is irrelevant for the calculation of the deadline to bring an action for annulment.555 The Courts decide if the publication of a certain type of act is ‘of consistent practice’ by examining its content and intended purpose, and not its form or the legal basis specified therein.556 The meaning of ‘publication’ is not limited to the Official Journal, 14 extra days are added. In Polyelectrolyte Producers, the Courts examined the rules applicable to online publication of EU acts in the context of ECHA decisions. The Courts pointed out that no provision required publication of the contested decision in the Official Journal either in the form of a summary notice or as a full version. The REACH regulation nonetheless provided that the updated candidate list of substances at issue was to be published on the internet.557 The Court of Justice held that such a publication was to be assimilated to a publication in the Official Journal, meaning that it was the starting point of the two-month time limit. That time limit was to be counted from the fourteenth day following that of the publication on the internet, even if Article 59 of the GC RoP only grants the 14-day extension by explicitly mentioning publication in the Official Journal.558

3.228

A definitively adopted act may be challenged before its publication. If the action for annulment is brought before the publication of the contested act – even if the publication is required by EU law – that action is admissible, provided that the act has been definitively adopted.559

3.229

3.1.6.3. Notification General. Article 297(2) TFEU provides that decisions which specify to whom they are addressed, as well as directives only addressed to some of the Member States (and not all of them), must be notified to the addressees. As regards decisions, notification is the operation through which the addressees of decisions of individual scope take cognisance of the latter.560 The term ‘notification’ only denotes delivery of the act to the addressee, while the delivery of copies of the act to other persons is merely ‘communication’, to which the rules regarding notification do not apply.561

554 Case C-122/95 Germany v Council [EU:C:1998:94] paras 34–39; Order of 21 November 2005 in Case T-426/04 Tramarin v Commission [EU:T:2005:405] para 49. 555 Case T-190/00 Regione Siciliana v Commission [EU:T:2003:316] paras 25–33; Case T-354/05 TF1 v Commission [EU:T:2009:66] paras 31–34. 556 Case T-354/05 TF1 v Commission [EU:T:2009:66] paras 38–48. 557 Art 59(10) of Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency (OJ 2006 L 396, p. 1; the REACH regulation). 558 Case C-625/11 P PPG and SNF v ECHA [EU:C:2013:594] paras 35–37; setting aside Order of 21 September 2011 in Case T-268/10 PPG and SNF v ECHA [EU:T:2011:508] in which the General Court held that the 14 days’ prolongation did not apply. 559 Case C-626/11 P PPG and SNF v ECHA [EU:C:2013:595] paras 40–41. 560 Case T-17/02 Olsen v Commission [EU:T:2005:218] para 74. 561 Order of 13 May 2008 in Case T-327/04 SNIV v Commission [EU:T:2008:146] para 33; Case T-354/05 TF1 v Commission [EU:T:2009:66] para 31.

3.230

200 Action for Annulment 3.231

In case of notification, the rules on publication are irrelevant. Acts of EU institutions or bodies which have to be notified to their addressees (cf para 3.230) may also be the subject of publication. In these cases, the rules concerning notification always prevail over the rules related to publication, meaning that only the date of notification is relevant for the calculation of the deadline. It follows that the rules on the addition of 14 extra days to the time limit (cf para 3.223) are not applicable in respect of decisions notified to their addressees, even if the publication in the Official Journal took place on the same day as the notification.562

3.1.6.4. Becoming Aware of the Contested Act 3.232

Subsidiary role. Under Article 263(6) TFEU, an action for annulment has to be brought ‘within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be’. It follows from this wording that, for the determination of the start of the period for bringing an action, the date on which the applicant became aware of the measure is subsidiary to the dates of the publication or the notification of the measure.563 It is settled case law that the respect of the time limits for bringing actions is a matter of public policy. The strict application of these rules serves the requirements of legal certainty, by preventing EU measures which produce legal effects from being called into question indefinitely. Where the time limit for bringing an action for annulment runs from the publication of the act, the applicant cannot validly argue that he became aware of the act only after its publication in order to cause a delay in the calculation of the time limit, since the date of publication is decisive for determining the starting day of that time limit.564

3.233

Burden of proof. It is for the party who is seeking to rely on the lateness of an application to demonstrate from which date the time limit, for the filing of that application, should run.565 It is normally the defendant institution or body that has an interest in showing the lateness of the action, since it implies the inadmissibility of the latter. The defendants may demonstrate the applicant’s earlier awareness of the measure inter alia through his declarations, correspondence, as well as the wide media coverage of the measure.566

3.234

The time limit starts to run upon obtaining access to the full text of the act. Under settled case law, the two-month period referred to in Article 263(6) TFEU does not start to run until the interested party has an exact knowledge of the content and grounds of the measure in question so as to be able to exercise his right of action, that is, until that party receives the full version of the act. It is the responsibility of the party who becomes aware of the existence of a measure concerning him to request the full text from the institution or body within a reasonable period.567 In Abertis, the Commission informed the applicant that it intended to close a merger procedure, yet the applicant only asked for the full text of the decision more than six months later. 562 Order of 18 December 2012 in Case T-320/11 Hungary v Commission (Sapard) [EU:T:2012:705] paras 18–23; Order of 19 April 2016 in Case T-550/15 Portugal v Commission (EAGF and EAFRD) [EU:T:2016:237] paras 26–31. 563 Case C-122/95 Germany v Council [EU:C:1998:94] para 35; Case T-190/00 Regione Siciliana v Commission [EU:T:2003:316] para 30. 564 Order of 29 November 2017 in Case C-467/17 P Società agricola Taboga Leandro e Fidenato Giorgio v Parliament and Council [EU:C:2017:916] para 15 and the case law cited. 565 Case C-521/06 P Athinaïki Techniki [EU:C:2008:422] paras 71–77. 566 Order of 15 July 1998 in Case T-155/95 LPN and GEOTA v Commission [EU:T:1998:167] paras 36–42. 567 Case T-188/95 Waterleiding Maatschappij ‘Noord-West Brabant’ v Commission [EU:T:1998:217] paras 111–112; Order of 21 November 2005 in Case T-426/04 Tramarin v Commission [EU:T:2005:405] para 48.

Time Limits 201 The General Court held that the request was not made in a reasonable period and the application was dismissed as out of time.568 In LPN and GEOTA, a request for the full version filed four months after the applicants had become aware of the measure was also considered late.569

3.1.6.5. Particular Situations Amendments of regulations – where some older provisions form a whole with new provisions. Where a provision in a regulation is amended, a fresh right of action arises, not only against that provision alone, but also against all the provisions which, even if not amended, form a whole with it.570

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3.1.6.6. Not Bringing an Action for Annulment in Good Time Precludes the Use of Other Judicial Avenues Legal certainty requires that time limits could not be circumvented. The reason behind the time limit foreseen in Article 263(6) TFEU is to ensure legal certainty by preventing Union measures which produce legal effects from being called into question indefinitely.571 In particular, according to settled case law, a decision adopted by Union institutions or bodies which has not been challenged by its addressee within the time limit laid down in Article 263(6) TFEU becomes definitive as against that person. The same goes for a decision addressed to others572 or a provision of an act of general application which is of direct and individual concern to a natural or legal person.573

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Restrictions on incidental review where the applicant had the right to direct review. The case law precludes that parties circumvent the time limits laid down in Article 263(6) TFEU by contesting, through incidental review, the validity of EU acts that have become definitive in their respect (cf para 1.12, cf para 3.708). A Member State is not allowed to plead, in a procedure before a national judge, the invalidity of an EU decision addressed to it where it did not directly challenge that decision in due time.574 Natural or legal persons who had the standing to seek the annulment of an EU act but failed to do so within the time limits may not seek a preliminary reference on validity either575 (cf para 3.708). In infringement proceedings brought against a Member State under Article 258 TFEU, it cannot plead the illegality of a decision addressed to it which it did not contest in due time.576

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No reopening of the deadline by requesting a new act. After the adoption of a definitive act, it is not possible to extend the time limit to bring an action for annulment by sending a letter to the

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568 Order 18 May 2010 in Case T-200/09 Abertis v Commission [EU:T:2010:200] para 48. 569 Order of 15 July 1998 in Case T-155/95 LPN and GEOTA v Commission [EU:T:1998:167] para 44. 570 Case C-299/05 Commission v Parliament and Council (social security schemes) [EU:C:2007:608] paras 28–30. 571 Case C-178/95 Wiljo [EU:C:1997:46] para 19; Case C-241/01 National Farmers’ Union [EU:C:2002:604] para 34. 572 Case C-188/92 TWD Textilwerke Deggendorf [EU:C:1994:90] para 13. 573 Case C-239/99 Nachi Europe [EU:C:2001:101] para 37; Case C-135/16 Georgsmarienhütte and Others [EU:C:2018:582] paras 30–33. 574 Case C-241/01 National Farmers’ Union [EU:C:2002:604] para 36. 575 Case C-188/92 TWD Textilwerke Deggendorf [EU:C:1994:90]; Case C-239/99 Nachi Europe [EU:C:2001:101] para 40; Case C-135/16 Georgsmarienhütte and Others [EU:C:2018:582] paras 30–33 and 43. This case law is irrelevant from the point of view of the application of the third variant of Art 263(4) TFEU. If the regulatory act does not entail implementing measures, no subsequent case can emerge in which incidental review could be requested. 576 Case C-183/91 Commission v Greece (tax exemption on earnings from exports) [EU:C:1993:233] para 10.

202 Action for Annulment EU institution or body in which further explanations or reconsideration are asked for. The reply sent by the institution or body merely repeating the binding content of the definitive act does not reopen the deadline, since it is a confirmatory act, which is not amenable to review (cf para 3.44 et seq).577 The deadline is not reopened even where a bundle of individual decisions, also addressed to the applicant, was annulled in respect of other addressees who challenged it successfully in due time. The bundle of individual decisions will stand in respect of the applicant who did not bring an action for annulment within the time limits. If he requests the reconsideration of his situation in light of the annulment judgment, the response of the institution or body, refusing reconsideration, is a non-reviewable confirmative act578 (cf para 3.329). 3.239

No action for damages seeking the effects of a time-barred action for annulment. Finally, the rules on time limits cannot be circumvented by filing an action for damages which concerns the same instance of illegality and which has the same financial end as the – possibly hypothetical – action for annulment that the applicant has failed to lodge in good time. In particular, if the amount of the damages claimed from the institution or body is precisely equivalent to the financial consequences of the hypothetical annulment, the action for damages will be dismissed as inadmissible, on the grounds of abuse of procedure.579

3.1.7. Grounds for Review 3.1.7.1. General 3.240

Article 263(2) TFEU. Article 263(2) TFEU provides that the Courts shall review acts of EU institutions or bodies ‘on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers’. It is noted in legal literature that the third ground, that is, put simply, the breach of superior EU law, includes all others, since the rules on distribution of competences, on procedure and on the purpose of the use of powers conferred on institutions or bodies are all laid down in the ‘Treaties or of any rule of law relating to their application’.580 The classification of the grounds for annulment does have procedural consequences though (cf para 3.243).

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Grounds for review and pleas on law. Before the EU Courts, it is not enough to present the factual context of the case: the applicant also has to put forward pleas in law justifying his request of annulment581 (cf para 3.306). A plea in law must fit in the framework of (at least) one of the grounds for annulment listed in Article 263(2) TFEU, although the parties do not need to refer explicitly to the grounds foreseen in Article 263(2). They are, however, required to specify which exact statement or provision in the contested act is in breach of which exact superior norm, and to put forward clearly defined pleas in law (cf para 4.180 et seq). If the Courts conclude that all the pleas in law raised by the applicant are unfounded, they dismiss the action for annulment, even

577 Order of 8 October 2012 in Case T-62/12 ClientEarth v Council [EU:T:2012:525]. 578 Case C-310/97 P Commission v AssiDomän Kraft Products and Others [EU:C:1999:407] paras 49–63. 579 Case T-186/98 Inpesca v Commission [EU:T:2001:42] paras 76–77. See also Case T-279/11 T & L Sugars and Sidul Açúcares v Commission [EU:T:2013:299] paras 103–104. 580 M Wathelet and J Wildemeersch, Contentieux européen (Larcier, Brussels, 2010) 174; D P Domenicucci and I Taccani, ‘Articolo 263 TFUE’ (in: Codice dell’Unione Europea operativo ed. by C C Gialdino, Simone, Napoli, 2012) 1883; A H Türk, Judicial Review in EU Law (Edward Elgar Publishing, Cheltenham, 2009) 106. 581 M Pechstein EU-Prozessrecht (Mohr Siebeck, Tübingen, 2011) 259.

Grounds for Review 203 if, in a parallel case with identical facts, they annul the – possibly same – contested act in respect of that other applicant. Classification of the grounds for review – légalité externe and légalité interne. Following French legal doctrine, which clearly inspired the wording of the provisions placed in what is now Article 263(2) TFEU,582 commentators often group ‘lack of competence’ and ‘infringement of an essential procedural requirement’ in the category of reviewing the légalité externe of the act, a notion referring to the circumstances of its adoption and to the presence of a reasoning that allows the logic of the institution or body to be understood. On the other hand, breach of EU law and misuse of powers concern the légalité interne, that is, the substantive legality of the act and the validity of its reasoning.

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Lack of competence and infringement of an essential procedural requirement may be examined ex officio. A practical aspect of the above distinction is that the Courts may raise a ground for annulment which concerns the légalité externe of the act (lack of competence and infringement of an essential procedural requirement) of their own motion, as they are a matter of public policy, while they may only consider pleas in law related to légalité interne if they are put forward by the parties.583 In practice, the Courts often raise the plea of insufficient reasoning (traditionally classified as ‘infringement of an essential procedural requirement’) of their own motion (cf para 3.257). Other examples for ex officio examination include the lack of competence to adopt the act (cf para 3.244) and the inobservance of the time limit to adopt the act (cf para 3.271). In M v EMEA, the Court of Justice derived from the right to a fair hearing that the parties had a right to be given the opportunity to comment on the pleas in law raised by the Courts of their own motion, on which they intend to base their decision.584 Furthermore, the parties may draw the attention of the Courts to a ground for review that can be examined ex officio at whichever stage of the procedure, thus, in respect of a plea related to these grounds for annulment, they are not bound by the rule that all pleas in law must be in the application (cf paras 4.239–4.241). If the Courts consider that new plea (raised after the application) to be relevant, they should give the defendant the opportunity to comment on that plea if it had no earlier possibility to do so (cf para 4.242).585

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3.1.7.2. Lack of Competence Lack of competence can be examined ex officio. The ground for annulment based on the alleged lack of competence of the author to adopt the contested act is a matter of public policy and may therefore be considered by the Courts of their own motion586 (cf para 3.243).

582 D P Domenicucci and I Taccani, ‘Articolo 263 TFUE’ (in: Codice dell’Unione Europea operativo ed. by C C Gialdino, Simone, Napoli, 2012) 1883. 583 K Lenaerts, D Arts and I Maselis, Procedural Law of the European Union (Sweet & Maxwell, London, 2006) 288; M Wathelet and J Wildemeersch, Contentieux européen (Larcier, Brussels, 2010) 174. 584 Case C-197/09 RX-II M v EMEA [EU:C:2009:804] paras 40–41; see also Case C-89/08 P Commission v Ireland and Others (exemption from excise duty on mineral oils) [EU:C:2009:742] para 56. 585 Case C-89/08 P Commission v Ireland and Others (exemption from excise duty on mineral oils) [EU:C:2009:742] para 57; Case C-530/12 P OHIM v National Lottery Commission [EU:C:2014:186] para 54. 586 Case C-108/81 Amylum v Council [EU:C:1982:322] para 28; Case C-210/98 P Salzgitter v Commission [EU:C:2000:397] para 56; Joined Cases T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, T-102/89 and T-104/89 BASF and Others v Commission [EU:T:1992:26] para 31; Case T-315/01 Kadi v Council [EU:T:2005:332] para 61.

3.244

204 Action for Annulment 3.245

Absolute and relative lack of competence. The legal literature refers to the situation where the EU as such does not have the power to adopt a measure as ‘absolute’ lack of competence, as opposed to ‘relative’ lack of competence, where an institution or body encroaches on the power of another institution or body.587 Another approach, referring to the same division, is to distinguish ‘vertical’ and ‘horizontal’ lack of competence.588 (i) Where the EU Lacks Competence

3.246

The division of powers between the EU and its Member States – principle of conferral. Article 5 TEU contains the principles governing the division of power between the EU and its Member States. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein, while competences not conferred upon the Union in the Treaties remain with the Member States. The powers of the EU are specified in respect of each policy area in the FEU Treaty. In addition, Article 352 TFEU allows the Union’s competences to be extended on a caseby-case basis, by unanimous vote in the Council.589 The legal basis is mentioned in formally adopted EU acts. It may be a Treaty Article or a provision of secondary legislation that confers the power on an institution or body to adopt certain acts.

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Principles of subsidiarity and proportionality. Article 5 TEU contains further two principles related to the distribution of powers between the EU and its Member States. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, ‘the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States’ and can therefore, by reason of the scale or effects of the proposed action, be better achieved at Union level.590 Under the principle of proportionality, ‘the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties’. When there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.591 More detailed rules as regards these principles are laid down in Protocol No 2 on the application of the principles of subsidiarity and proportionality, which is annexed to the Treaties. In the context of an action for annulment, the breach of these principles can be criticised on the grounds of both a ‘lack of competence’ and an ‘infringement of the Treaties or of any rule of law relating to their application’ (cf para 3.240).592

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Example: Tobacco advertisement. Member States may directly bring an action for annulment against an EU legislative act before the Court of Justice and plead the EU’s lack of competence to adopt the contested act. In the Tobacco advertisement case, Germany contested Directive 98/43/EC of the European Parliament and of the Council on the approximation of the laws of the Member States relating to the advertising and sponsorship of tobacco products, which

587 D P Domenicucci and I Taccani, ‘Articolo 263 TFUE’ (in: Codice dell’Unione Europea operativo ed. by C C Gialdino, Simone, Napoli, 2012) 1884. 588 M Pechstein, EU-Prozessrecht (Mohr Siebeck, Tübingen, 2011) 268–270. 589 See, eg Case C-45/86 Commission v Council (generalized tariff preferences) [EU:C:1987:163] para 12; Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [EU:C:2008:461] paras 235–236. 590 See Case C-176/09 Luxemburg v Parliament and Council (airport charges) [EU:C:2011:290]. 591 Case C-343/09 Afton Chemical [EU:C:2010:419] para 45; Case C-15/10 Etimine [EU:C:2011:504] para 124. 592 A H Türk, Judicial Review in EU Law (Edward Elgar Publishing, Cheltenham, 2009) 109.

Grounds for Review 205 banned the advertising of tobacco products.593 Germany put forward that the ‘centre of gravity’ of the directive was the protection of human health; however, Article 152 TEC (now Article 168 TFEU) excluded harmonisation of law in that field, meaning that passing relevant legislation remained a national competence. The Court of Justice recalled that the legal basis of the directive was inter alia Article 95 TEC (now Article 114 TFEU), by virtue of which the Parliament and the Council may adopt measures for the approximation of national laws as regards the establishment and functioning of the internal market. After referring to the principle of conferral, it went on to examine if harmonisation of laws was justified on that legal basis, that is, whether the directive actually contributed to eliminating obstacles to the free movement of goods and to the freedom to provide services, and to removing distortions of competition. It held that, in respect of numerous types of advertising of tobacco products, such as advertising on posters, parasols, ashtrays and other articles used in hotels, restaurants and cafés, prohibitions could in no way help to facilitate trade in the products and services concerned, nor did the ban contribute, to any appreciable extent, to preventing distortion of competition. Therefore, the Court of Justice considered that Article 95 TEC could not form a valid legal basis for outlawing tobacco advertisement and annulled the directive for lack of competence.594 (ii) Institution Arrogating the Power of Another Institution Article 13(2) TFEU provides for a clear division of powers between institutions in respect of each EU policy. Under Article 13(2) TFEU, each EU institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The Court of Justice held in this respect that the limits of the powers vested in the institutions by a specific provision of the Treaties are to be inferred not from a general principle, such as the abstract division between ‘legislative’ organs (the Parliament and the Council) and ‘executive’ organs (the Commission and the executive bodies, such as the EUIPO), but from an interpretation of the particular wording of the provision in question, analysed in the light of its purpose and its place in the scheme of the Treaties.595 Institutions or bodies are not allowed to derive powers from common sense or from practical considerations: the Treaties and secondary EU acts based on the Treaties are the only valid sources of power. In France v Commission (agreement on competition law with the USA), the Court of Justice annulled the act whereby the Commission sought to conclude an international agreement with the United States competition authority, which provided for practical cooperation in the field of competition law enforcement. The Commission could not validly argue that the implementation of the agreement only required the exercise of its own powers, as Article 300 TEC (now Article 218 TFEU) provided that international agreements between the Union and third countries are concluded by the Council.596

3.249

Incorrect Treaty legal basis. Where the Court of Justice finds that the Council chose an incorrect legal basis for the adoption of measures, which grants fewer rights for other institutions or bodies to participate in the decision-making than the correct legal basis, it annuls the measures.

3.250

593 Directive 98/43/EC of the European Parliament and of the Council of 6 July 1998 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (OJ 1998 L 213, p. 9). 594 Case C-376/98 Germany v Parliament and Council (tobacco advertisement) [EU:C:2000:544] paras 95–105. 595 Joined Cases C-188/80 to C-190/80 France and Others v Commission (transparency of financial relations with public undertakings) [EU:C:1982:257] para 6. 596 Case C-327/91 France v Commission (agreement on competition law with the USA) [EU:C:1994:305].

206 Action for Annulment The choice of legal basis for an act of the Union must rest on objective factors which are amenable to judicial review, including in particular the aim and the content of the measure597 (see also para 3.100 et seq). Moreover, if an act of the Union pursues a twofold aim or has a twofold component, and if one of those is identifiable as the main one while the other is merely incidental, the measure must be based on a single legal basis, namely that required by the main aim or component.598 Historically, in the times where co-decision (now ordinary legislative procedure) had not yet been introduced to nearly all policy areas, such litigation was frequent between the Parliament and the Council. In addition, the Parliament often contested the choice of the flexibility clause (through which EU competences can be extended on a case-by-case basis; see Article 308 TEC, now Article 352 TFEU, cf para 3.246) as the legal basis of a Council act, instead of a policy-specific Treaty article requiring co-decision, since the flexibility clause foresaw that the Parliament only needed to be consulted.599 Considering that the flexibility clause is subsidiary to policy-specific Treaty articles, the Court of Justice annulled the measures where the Parliament succeeded in showing that they could have been adopted under one of the policyspecific articles.600 Today, where ordinary legislative procedure (co-decision) applies in almost every policy area (with the notable exception of the Common Foreign and Security Policy601), and the flexibility clause in Article 352 TFEU also foresees the Parliament’s consent, such disputes are less frequent. A more recent example is the Energy infrastructure case, where the Parliament contested the choice of Article 337 TFEU as a legal basis for the adoption of a regulation concerning the notification of investment projects in energy infrastructure to the Commission.602 The Parliament argued that instead of Article 337 TFEU, under which ‘the Commission may, within the limits and under conditions laid down by the Council … collect any information and carry out any checks required for the performance of the tasks entrusted to it’, Article 194 TFEU (common energy policy) should have been chosen as the legal basis, which provides for the adoption of acts via the ordinary legislative procedure involving the Parliament. The Court of Justice considered this plea well founded and annulled the regulation.603 In addition to the Parliament, the choice of legal basis can also be important for the Committee of the Regions and the ECB, since some of the Treaty articles foresee their involvement in the decision-making process, while others do not (cf para 3.101). 3.251

Commission exceeding the limits of its implementing powers. In some areas, the FEU Treaty itself vests implementing powers in the Commission, for example in the field of competition and State aid policy (Articles 101–108 TFEU). In addition, the implementing powers of the Commission may also derive from secondary sources of law, such as directives, regulations and decisions adopted by the Parliament and the Council. The Lisbon Treaty has recast the old rules on comitology (Article 202 TEC) and severed ‘delegated acts’,604 and Article 291(2) TFEU now provides 597 Case C-440/05 Commission v Council (ship-source pollution) [EU:C:2007:625] para 61. 598 Case C-91/05 Commission v Council (combating the proliferation of small arms) [EU:C:2008:288] para 73. 599 Today, under Art 352 TFEU, the consent of the Parliament is required. 600 See, eg Case C-22/96 Parliament v Council (telematic networks) [EU:C:1998:258] paras 27–38. 601 See, eg Case C-130/10 Parliament v Council (fund freezing – Al Qaeda) [EU:C:2012:472]. 602 Council Regulation (EU, Euratom) No 617/2010 of 24 June 2010 concerning the notification to the Commission of investment projects in energy infrastructure within the European Union and repealing Regulation (EC) No 736/96 (OJ 2010 L 180, p. 7). 603 Case C-490/10 Parliament v Council (energy infrastructure) [EU:C:2012:525]. 604 Unlike in the pre-Lisbon system, power delegation by the Council and the Parliament to the Commission to amend or supplement non-essential elements of legislative acts is now a separate category, governed by distinct rules in Art 290 TFEU (delegated acts). The Council and the Parliament are unlikely to challenge delegated acts before the Court of Justice because of the guarantees foreseen in Art 290(2) TFEU: first, the delegated act may enter into force only if no objection has been expressed by the Parliament or the Council; and secondly, they can simply revoke the delegation at any time.

Grounds for Review 207 that where ‘uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission’. Such implementing acts are adopted under the control of Member States via the procedures laid down in the 2011 Comitology Regulation, which establishes committees consisting of Member States’ representatives and defines their rights.605 Pre-Lisbon case law does apply mutatis mutandis. As the Court of Justice held, within the framework of its implementing powers, the limits of which must be determined by reference to, amongst other things, the essential general aims of the legislation in question, the Commission is authorised to adopt all the measures which are necessary or appropriate for the implementation of the basic legislation, provided that they are not contrary to it.606 As it appears from the Chinese textile imports case, the mere fact that, in the competent committee consisting of the Member States’ representatives, the majority of the Member States approved the implementing measure of the Commission in no way justifies the excess of the Commission’s powers as defined in the basic act.607

3.1.7.3. Infringement of an Essential Procedural Requirement (i) General Rules Sources of law. Procedural requirements may be foreseen in the Treaties (such as the duty to give reasons) or in secondary legislation. They may also be derived from general principles of law or from fundamental rights (such as the rights of the defence, the right to be heard, and the duty to adopt acts in a reasonable time), possibly contained in the Charter of Fundamental Rights, even if the relevant secondary legislation does not provide for them.608

3.252

The infringement can be examined ex officio. Infringements of essential procedural requirements pertain to the légalité externe of the act and may be raised by the Courts of their own motion (cf para 3.243).

3.253

The infringement only entails annulment if it is liable to affect the operative part of the contested act. Under settled case law, a procedural defect leads to the annulment in whole or in part of a decision only if it is shown that, but for that defect, the administrative procedure could have had a different outcome and, consequently, the contested decision might have been different.609 For instance, in Germany v Commission (EAGGF), the General Court annulled a Commission decision reducing the allocation of EU funds to Germany on the grounds that the procedural vices established by the Court could have a bearing on the final decision.610

3.254

Increased importance where the institution or body has a wide margin of discretion. As the Court of Justice held in Technische Universität München, respect for the rights guaranteed by

3.255

605 Regulation (EU) No 182/2011 of the Parliament and the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13). 606 Case C-478/93 Netherlands v Commission (bananas) [EU:C:1995:324] paras 30–31; Case C-159/96 Portugal v Commission (Chinese textile imports) [EU:C:1998:550] paras 40–41; Joined Cases C-14/06 and C-295/06 Parliament and Denmark v Commission (exemption of decabromodiphenyl ether) [EU:C:2008:176] para 52. 607 Case C-159/96 Portugal v Commission (Chinese textile imports) [EU:C:1998:550] paras 19–20 and 50. 608 See A H Türk, Judicial Review in EU Law (Edward Elgar Publishing, Cheltenham, 2009) 113. 609 Case T-70/05 Evropaïki Dynamiki v EMSA [EU:T:2010:55] para 103. To that effect, see also Case T-345/03 Evropaïki Dynamiki v Commission [EU:T:2008:67] para 147; Case T-332/03 European Service Network v Commission [EU:T:2008:66] para 130 and the case law cited. 610 Case T-557/13 Germany v Commission (EAGGF) [EU:T:2015:682] paras 71–75.

208 Action for Annulment the EU legal order in administrative procedures is of even more fundamental importance where the institution or body has discretionary powers and a wide margin of appraisal. The Court added that those guarantees include, in particular, the duty of the competent institution [or body] to examine carefully and impartially all the relevant aspects of the individual case, the right of the person concerned to make his views known and to have an adequately reasoned decision. Only in this way can the Court verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present.611

(ii) Insufficient Reasoning 3.256

The duty to provide reasons. Under Article 296 TFEU (ex Article 253 TEC), legal acts of the EU shall state the reasons on which they are based. The duty to provide reasons is also a general principle of law612 and, in Article 41(2)c of the Charter, it is construed as part of the right to good administration insofar as decisions are concerned.613 The statement of reasons must be appropriate to the measure at issue and must disclose clearly and unequivocally the reasoning followed by the institution or body in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the EU Courts to exercise their power of review.614 The statement of the reasons for a measure must be logical and contain no internal inconsistency that would prevent a proper understanding of the reasons underlying the measure.615 Inexistent,616 insufficient, vague or contradictory617 reasoning entails annulment if it affects an essential consideration in the contested act which underpins the operative part. It should nonetheless be borne in mind that the ultimate consequence of an annulment for the breach of the duty to state reasons may simply be the readoption of the annulled act after the insertion of a brief additional reasoning (cf para 3.331).

3.257

Matter of public policy. The breach of the duty to provide reasons goes to an issue of infringement of essential procedural requirements within the meaning of Article 263 TFEU and, involving a matter of public policy, must be raised by the EU Courts of their own motion.618 This rule implies that the Courts may find insufficient reasoning without it being argued by the applicant and also that the applicant may draw the attention of the Courts to insufficient reasoning at whichever stage of the procedure, even as late as at the hearing (cf paras 4.239–4.240).

611 Case C-269/90 Technische Universität München [EU:C:1991:438] para 14. Following a preliminary reference, the Court of Justice declared the Commission decision at issue invalid. 612 Case T-241/97 Stork Amsterdam v Commission [EU:T:2000:41] para 74. 613 The right to good administration includes the obligation of the EU institution or bodies to give reasons for their decisions. NB: in contrast to Art 296 TFEU, which also refers to acts of general application, the Charter only mentions decisions. 614 State aid: Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [EU:C:2008:375] para 88; anti-dumping: Case C-76/00 P Petrotub and Republica v Council [EU:C:2003:4] para 106; cartels: Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission (pre-insulated pipes cartel) [EU:C:2005:408] para 462; Case C-521/09 P Elf Aquitaine v Commission (monochloroacetic acid cartel) [EU:C:2011:620] para 147. 615 Case C-521/09 P Elf Aquitaine v Commission (monochloroacetic acid cartel) [EU:C:2011:620] para 151. 616 Joined Cases C-8/66 to C-11/66 Cimenteries C.B.R. and Others v Commission [EU:C:1967:7]. 617 Case T-465/04 Evropaïki Dynamiki v Commission [EU:T:2008:324] paras 77 et seq. 618 Case C-367/95 P Commission v Sytraval and Brink’s France [EU:C:1998:154] para 67; Case T-349/03 Corsica Ferries v Commission [EU:T:2005:221] para 52.

Grounds for Review 209 Requisite extent of reasoning: acts of general application and individual acts. The standard, depth and approach of the reasoning required in respect of acts of general application and of acts of individual scope (essentially decisions) are understandably different. Draft legislative acts have to contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality619 (cf para 3.247), and such statements normally appear in the final, adopted versions as well. The preamble of an act of general application620 may be limited to indicating the general situation which led to its adoption, on the one hand, and the general objectives which it is intended to achieve, on the other.621 If the contested measure clearly discloses the essential objective pursued by the institutions or bodies, it would be excessive to require a specific statement of reasons for each of the technical choices made by them.622 However, broader reasoning may be required in respect of acts of general application which are implementing measures and take account of the individual situation of some undertakings whose rights of defence are recognised (cf para 3.267), such as anti-dumping regulations. The reasoning of acts of individual application must go even further, especially where the act is adopted against a particular person, and where secondary legislation provides for procedural rights to be respected during the administrative procedure (cf para 3.267). In these situations, in addition to substantiating the institution’s or body’s findings in respect of each addressee,623 the act must also respond to the arguments raised by them in the administrative procedure (cf para 3.260). The case law presented below (cf paras 3.259–3.265) is mostly related to acts of individual scope.

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Extent of the duty to provide reasons depends on the circumstances of the case. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular, the content of the measure in question, the nature of the reasons given, and the interest which the addressees of the measure or other parties to whom it is of direct and individual concern may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, nor is justification required for every technical choice;624 however, the institution or body is required to set out at least the facts and considerations of decisive importance in the decision itself.625 The question whether the reasoning is adequate must be assessed with regard not only to its wording, but also to its context and to all the legal rules governing the matter in question.626 Regard must also be had to the fact that the acts of the institutions and bodies should have some reasonable size limits and must be presented in an understandable structure. This is particularly true for cartel decisions, often having a volume of 300–500 pages even without quoting all the relevant evidence. Therefore, annexes and footnote

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619 See Protocol No 2 of the Treaties on the Application of the principles of subsidiarity and proportionality, Art 5. 620 Acts of general application include, besides legislative acts, delegated acts (Art 290 TFEU), implementing acts (Art 291 TFEU) and other implementing measures of general application. 621 Case C-342/03 Spain v Council (canned tuna originating in Thailand) [EU:C:2005:151] para 55. 622 Case C-100/99 Italy v Council and Commission (agrimonetary system for the euro) [EU:C:2001:383] para 64; Case C-344/04 International Air Transport Association and European Low Fares Airline Association [EU:C:2006:10] para 67 (preliminary ruling on validity). 623 Case C-521/09 P Elf Aquitaine v Commission (monochloroacetic acid cartel) [EU:C:2011:620] para 152. 624 Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [EU:C:2008:375] para 108. 625 Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04 TV 2/Danmark and Others v Commission [EU:T:2008:457] para 180. 626 Case C-367/95 P Commission v Sytraval and Brink’s France [EU:C:1998:154] para 63; Case C-501/00 Spain v Commission (export aid for steel undertakings) [EU:C:2004:438] para 73; Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [EU:C:2008:375] para 88; Case C-521/09 P Elf Aquitaine v Commission (monochloroacetic acid cartel) [EU:C:2011:620] para 150.

210 Action for Annulment references in the contested decision to documents of which the applicant had knowledge during the administrative procedure are relevant when the General Court assesses the sufficiency and adequacy of the reasoning. In that regard, the General Court ruled in H&M ChemPharm as follows: Having regard to the large volume of information and assessments underpinning the decision to impose fines on a large number of companies, each of which is entitled to have an adequate statement of reasons as regards the factors concerning it, the Commission cannot be criticised for having arranged the reasoning on which the decision is based on several levels. In particular, the Commission does not breach any legal rule by setting out in the body of the text only the main considerations on which the decision is based and also the considerations put forward with respect to the specific arguments raised by the undertakings concerned in their replies to the statement of objections, and in presenting the explanatory information or considerations and the references to the evidence in the footnotes or the annex to the decision.627

Moreover, the degree of precision of the statement of the reasons for a decision must be weighed against practical realities and the time and technical facilities available for making the decision,628 especially in fields such as concentrations, where the short timescales and the need for speed form part of the particular circumstances of proceedings.629 3.260

Responding to the party’s arguments. The arguments put forward by the applicant in the administrative procedure constitute a factor belonging to the circumstances of the adoption of the act, and thus play a role in determining the requisite extent of reasoning. While the institution or body is not required to anticipate potential objections630 which might be raised later before the Courts, it does have to react to relevant and important arguments put forward by the parties in the administrative procedure and, if it dismisses them, has to explain why they are unfounded. For instance, as was held in Chronopost, where the Commission rejects a complaint on alleged State aid filed by a competitor of a beneficiary of a state measure, the decision finding that no State aid exists must at least provide the complainant with an adequate explanation of the reasons for which the facts and points of law put forward in the complaint have failed to demonstrate the existence of State aid.631 However, the necessary correlation between the grounds relied on by the complainant and the statement of reasons cannot mean that the Commission is obliged to reject each of the arguments put forward in support of those grounds; it is sufficient if it sets out the facts and the legal considerations of fundamental importance.632 Another example is Elf Aquitaine. The Commission imputed the responsibility for the cartel participation of the subsidiary to its parent company on the sole basis of the presumption according to which holding 100 per cent of the subsidiary’s capital implies, in the absence of contrary evidence, actual exercise of a decisive influence over the market behaviour of the subsidiary. The Court of Justice considered that, when the Commission uses this presumption, it is required – if it is not to render that presumption in reality irrebuttable – to explain adequately to the addressees the reasons why the elements of fact and of law put forward by them in the administrative procedure did not suffice to rebut that 627 Case T-551/08 H&R ChemPharm v Commission (candle wax cartel) [EU:T:2014:1081] para 62, confirmed on appeal in Case C-95/15 P H&R ChemPharm v Commission (candle wax cartel) [EU:C:2017:125]. 628 Case C-350/88 Delacre and Others v Commission [EU:C:1990:71] para 16. 629 Case C-413/06 P Bertelsmann and Sony v Impala [EU:C:2008:392] para 167. 630 Joined Cases C-465/02 and C-466/02 Germany and Denmark v Commission (registration of ‘feta’ as a designation of origin) [EU:C:2005:636] para 106; Case C-413/06 P Bertelsmann and Sony v Impala [EU:C:2008:392] para 167. 631 Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [EU:C:2008:375] para 89. 632 Case C-404/04 P Technische Glaswerke Ilmenau v Commission [EU:C:2007:6] para 30; Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [EU:C:2008:375] paras 108, 111 and 114. The first instance judgment was set aside because the General Court required too detailed reasoning.

Grounds for Review 211 presumption.633 On the other hand, the institution or body is not required to adopt a position on factors which are manifestly irrelevant, unimportant or clearly ancillary.634 More reasoning is required if the institution or body changes its practice. While a decision of the Commission which fits into a well-established line of decisions may be reasoned in a summary manner (for example, by a reference to those decisions or to the relevant case law), the Commission must, if a decision goes appreciably further than the previous decisions, provide a fuller account of its reasoning.635

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The reasoning must be communicated, in principle, at the same time as the contested act. According to settled case law, the statement of reasons must, in principle, be either included in the decision adversely affecting the person concerned or notified to that person at the same time as the decision,636 depending on the type of field and administrative procedure. Elements of the institution’s or body’s assessment disclosed during the administrative procedure, such as its reaction to memoranda or expert opinions submitted by the parties, form part of the context of the adoption of the decision (cf para 3.259). Therefore, for instance, the parties cannot validly rely on the insufficient reasoning of the contested decision, by arguing that the Commission did not assess economic data or function analyses submitted by them, if the Commission clearly stated in the administrative procedure the reasons why such submissions were irrelevant. In some fields, such as public procurement by institutions or bodies of the EU, for reasons of procedural economy, the reasoning can be communicated in two stages: in the decision rejecting the tenderer’s offer, the institution or body only needs to provide a summary reasoning, but it has to complement this by a detailed statement later, upon request of the interested party.637 In any event, the absence or insufficiency of the reasoning cannot be remedied by communicating more reasons underpinning the decision to the applicant during the procedure before the Courts,638 for instance, in the defence submitted by the Commission (cf para 3.305).

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Insufficient reasoning and unlimited jurisdiction. Nonetheless, additional reasoning provided by the institution before the Courts may matter when the Courts exercise their unlimited jurisdiction foreseen in Article 261 TFEU, in particular, in cases where the applicant seeks reduction of the fine imposed on it for an infringement of competition rules.639 This is because, unlike in the case of the review of legality under Article 263 TFEU, the Courts are allowed to substitute their

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633 Case C-521/09 P Elf Aquitaine v Commission (monochloroacetic acid cartel) [EU:C:2011:620] para 153. 634 Case C-367/95 P Commission v Sytraval and Brink’s France [EU:C:1998:154] para 64; Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [EU:C:2008:375] para 89; Case C-521/09 P Elf Aquitaine v Commission (monochloroacetic acid cartel) [EU:C:2011:620] para 154. 635 Case C-73/74 Groupement des fabricants de papiers peints de Belgique and Others v Commission [EU:C:1975:160] para 31; Case C-295/07 P Commission v Département du Loiret [EU:C:2008:707] para 44; Case C-521/09 P Elf Aquitaine v Commission (monochloroacetic acid cartel) [EU:C:2011:620] para 155. 636 Case C-195/80 Michel v Parliament [EU:C:1981:284] para 22; Case C-351/98 Spain v Commission (aid for environmental protection) [EU:C:2002:530] para 84; Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission (pre-insulated pipes cartel) [EU:C:2005:408] para 463. 637 Case T-19/95 Adia Interim v Commission [EU:T:1996:59] para 31; Case T-183/00 Strabag Benelux v Council [EU:T:2003:36] para 54. See in particular Case T-465/04 Evropaïki Dynamiki v Commission [EU:T:2008:324] para 47: ‘the Commission fulfils its obligation to state reasons if it confines itself first to informing unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then subsequently, if expressly requested to do so, provides to all tenderers who have made an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, within a period of 15 days from the date on which a written request is received’. 638 Case C-195/80 Michel v Parliament [EU:C:1981:284] para 22; Case C-521/09 P Elf Aquitaine v Commission (monochloroacetic acid cartel) [EU:C:2011:620] para 149. 639 This power is conferred upon the Courts by Art 31 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

212 Action for Annulment own reasoning for that of the Commission when determining the amount of the fine by applying Article 261 TFEU (cf paras 3.310 and 3.315). Consequently, the appropriate nature of the fine may be assessed not only in the light of the reasoning contained in the contested decision, but also on the basis of further elements adduced during the Court procedure. If the additional materials and arguments put forward by the Commission in the procedure before the General Court convince the latter that the fine is adequate, the claim for a reduction of the fine will be dismissed, even if the decision is flawed by insufficient reasoning as regards some elements of the determination of the fine. As it was held in FNCBV, in such circumstances, the failure to state reasons should not entail the annulment of the contested decision as regards fines, nor any alteration in the amount of the fines.640 However, the General Court may only take into account additional materials to which the applicant had access in the administrative procedure, so as to ensure that the applicant’s rights of defence are respected. Moreover, it was made clear in Edison that complementary materials or analysis adduced by the Commission before the General Court may only be taken into consideration in the context of fine-setting, where the General Court has unlimited jurisdiction (Article 261 TFEU), while the contested decision must be annulled if the Commission’s finding as regards the existence of an infringement of the competition rules is flawed by insufficient reasoning, since this goes to the review of legality under Article 263 TFEU641 (see also cf 3.315). 3.264

Difference between adequate reasoning and substantive legality. The obligation laid down in Article 296 TFEU to state adequate reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which pertains to the substantive legality of the measure at issue.642 Formal it may seem, this distinction has farreaching practical implications. If the Courts annul a decision on the ground of insufficient reasoning, the institution or body may well readopt it with an identical operative part by merely adding a complementary analysis in a few pages (cf para 3.331). Conversely, if a decision is annulled on grounds of error of law or manifest error of assessment, the institution or body is much more likely to abandon the intent to readopt the measure concerning the applicant. In practice, confusion is especially common between the duty to state reasons and error of assessment, since applicants not familiar with the above distinction may consider that the duty to state adequate reasons also implies that those reasons are correct. Titles of pleas in law and other headings in the application (cf para 4.180) may play a substantial role. In Corsica Ferries, the General Court examined a plea in law that exclusively mentioned the breach of the duty to state reasons in its title. It pointed out that several objections and arguments put forward by the applicant under that plea sought to establish not that the contested decision was inadequately reasoned, but that it contained errors. Therefore, the applicant was in fact challenging the merits of the decision and not the sufficiency of the reasoning. The General Court held that such arguments regarding the merits were misplaced and irrelevant in the context of a plea in law related to the duty to give reasons, so discarded them from its analysis.643 In any event, the distinction between insufficient 640 Joined Cases T-217/03 and T-245/03 FNCBV and Others v Commission [EU:T:2006:391] paras 362–363. 641 Case T-196/06 Edison v Commission (hydrogen peroxide cartel) [EU:T:2011:281] paras 91–94; confirmed on appeal in Case C-446/11 P Commission v Edison (hydrogen peroxide cartel) [EU:C:2013:798]. 642 Case C-367/95 P Commission v Sytraval and Brink’s France [EU:C:1998:154] para 67; Case T-48/04 Qualcomm v Commission [EU:T:2009:212] para 179; Joined Cases T-494/08 to T-500/08 and T-509/08 Ryanair v Commission [EU:T:2010:511] para 97; Case C-521/09 P Elf Aquitaine v Commission (monochloroacetic acid cartel) [EU:C:2011:620] para 146. 643 Case T-349/03 Corsica Ferries v Commission [EU:T:2005:221] paras 58–61. See also Joined Cases T-305/94 to T-307/94, T-313/94 to T-315/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission (PVC cartel) [EU:T:1999:80] para 389; Case T-86/95 Compagnie générale maritime and Others v Commission [EU:T:2002:50] para 425; Joined Cases T-191/98 and T-212/98 to T-214/98 Atlantic Container Line and Others v Commission [EU:T:2003:245] paras 1175–1176.

Grounds for Review 213 reasoning and error of assessment may be genuinely difficult for the Courts if the applicant claims that the institution or body could not validly base a statement solely on the grounds mentioned in the contested act, thereby alleging both the presence of a logical flaw in the appraisal and – tentatively – the insufficiency of the reasoning. The Courts may put questions to the applicant at the hearing in order to clarify which illegality he is seeking to establish by such arguments.644 Extended reasoning is a corollary of broad discretion. Where the institution or body has a broad discretion, the observance of its duty to state sufficient reasons for its decisions is of even greater importance. Only in this way can the Courts verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present and that the institution or body carried out a comprehensive and impartial assessment.645

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(iii) Rights of the Defence Concept. Respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of specific rules laid down in secondary legislation.646 That principle requires that the person against whom an administrative procedure has been initiated must have been afforded the opportunity, during that procedure, to make known his views on the truth and relevance of the facts and circumstances alleged, and on the documents used by the Commission to support its claim that there has been an infringement of Union law.647 The two essential components of the rights of the defence are therefore access to the case file and the right to a fair hearing.648 Both rights are explicitly mentioned in Article 41 of the Charter of Fundamental Rights and are construed as part of the right to good administration. In order to obtain annulment based on a plea relating to the rights of the defence, it is sufficient to show that the illegal refusal to disclose documents or the inobservance of the right to a fair hearing might have influenced, to the applicant’s detriment, the course of the procedure and the content of the decision.649

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‘Against whom an administrative procedure has been initiated’. Only the main parties to the administrative procedure (‘against whom’ the procedure has been initiated) benefit from the rights of the defence. Companies on which fines or behavioural remedies have been imposed in a Commission decision, on the grounds of infringement of Article 101 or 102 TFEU, are clearly entitled to rely on the breach of their rights of the defence when challenging the decision. The rules

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644 See, eg Case T-392/09 1. garantovaná v Commission (calcium carbide cartel) [EU:T:2012:674] para 24. 645 Case C-269/90 Technische Universität München [EU:C:1991:438] para 14; Case T-241/00 Le Canne v Commission [EU:T:2002:57] paras 53–54; Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04 TV 2/Danmark and Others v Commission [EU:T:2008:457] para 179; Case T-465/04 Evropaïki Dynamiki v Commission [EU:T:2008:324] para 54. 646 Case C-301/87 France v Commission (State aid for Boussac Saint Frères) [EU:C:1990:67] para 29; Joined Cases T-228/99 and T-233/99 Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission [EU:T:2003:57] para 121. 647 Case C-234/84 Belgium v Commission (State aid granted by SRIW) [EU:C:1986:302] para 27; Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission (cement cartel) [EU:C:2004:6] para 66; Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04 TV 2/Danmark and Others v Commission [EU:T:2008:457] para 136; Case C-413/06 P Bertelsmann and Sony v Impala [EU:C:2008:392] para 61. 648 See also A H Türk, Judicial Review in EU Law (Edward Elgar Publishing, Cheltenham, 2009) 117. 649 Case T-36/91 ICI v Commission [EU:T:1995:118] para 78; Joined Cases T-305/94 to T-307/94, T-313/94 to T-315/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v C ommission (PVC cartel) [EU:T:1999:80] para 1021; Case T-5/02 Tetra Laval v Commission [EU:T:2002:264] para 90 et seq. In the specific context of fund freezing, see Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [EU:C:2008:461] para 375.

214 Action for Annulment in this respect are laid down in Regulation 1/2003,650 which imposes the duty on the Commission to communicate a statement of objections, give access to file to the parties and grant the possibility to make known their position on the objections raised by the Commission in a reply to the statement of objections and at a hearing before the hearing officer.651 In the final decision, the Commission may not rely on facts or objections which were not made known to the parties in the statement of objections and during the access to file exercise.652 Disclosure procedure plays a similar role in anti-dumping proceedings, its subjects being the complainants, importers and exporters and their representative associations, and representatives of the exporting country.653 Moreover, entities on which fund-freezing measures have been imposed clearly belong to the category of persons ‘against whom’ the Council conducted administrative procedures. Even if no statutory procedural rules exist, the rights of the defence still apply as a general principle of law, albeit the application of that principle has been adjusted to the specificities of fund freezing. In particular, since the measure must take advantage of the surprise effect to reach its objectives, the rights of the defence are respected if the evidence is notified to the persons concerned not during the administrative procedure, but either concomitantly with or as soon as possible after the adoption of the initial decision to freeze funds.654 In contrast, in State aid proceedings, only the Member State that grants the aid is entitled to rely on the rights of the defence.655 The Courts held that the right to access the case file claimed by the recipient of aid could not be deduced from the rights of the defence, since the procedure for reviewing State aid was not a procedure initiated ‘against’ the recipient. This means that the aid recipient cannot rely on those rights,656 even if the Commission orders, at the end of the administrative procedure, the reimbursement of illegal aid. Likewise, in merger proceedings, only the parties to the concentration benefit from the rights of the defence, since their competitors are not operators ‘against whom’ an administrative procedure was initiated.657 3.268

Are the rights of the defence a matter of public policy? While, in some cases, the General Court recognised that the respect of the rights of the defence belongs to the essential procedural requirements, whose breach may be examined ex officio,658 in other cases it held that a breach of the rights of the defence, which, by its nature, is individual, does not fall within the scope of an

650 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). 651 Art 27(1)–(2) of the Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). 652 Case T-213/00 CMA CGM and Others v Commission (shipping cartel) [EU:T:2003:76] para 178; Case C-534/07 P William Prym and Prym Consumer v Commission (needles cartel) [EU:C:2009:505] para 28. 653 Art 20 of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21). 654 Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council [EU:T:2006:384] para 129; Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [EU:C:2008:461] paras 336–339. 655 Art 6(2) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9). 656 Joined Cases C-74/00 P and C-75/00 P Falck and Acciaierie di Bolzano v Commission [EU:C:2002:524] paras 81–83; Case T-198/01 Technische Glaswerke Ilmenau v Commission [EU:T:2004:222] paras 193–194, not annulled on these points on appeal. 657 Art 18(3)–(4) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1). 658 Joined Cases T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211/97, T-216/97, T-217/97, T-218/97, T-279/97, T-280/97, T-293/97 and T-147/99 Kaufring and Others v Commission [EU:T:2001:133] para 134.

Grounds for Review 215 infringement of essential procedural requirements and must not be examined by the Courts of their own motion659 (cf para 4.241). (iv) Other Essential Procedural Requirements Breach of internal procedural rules. The breach of the institution’s or body’s internal p rocedural rules may be an infringement of essential procedural requirements and cause annulment, as was held in United Kingdom v Council (hormones), where the Council infringed its own rules of procedure.660 Likewise, Member States are entitled to challenge the validity of a decision on the ground that comitology rules (cf para 3.251) were infringed.661 However, natural or legal persons may only rely on an alleged breach of internal rules if these are intended to ensure protection for individuals.662 In Common Market Fertilizers, in the context of a Commission decision refusing the remission of customs duties, the General Court held that the purpose of the provision of the Customs Code Committee’s rules of procedure was to ensure the internal working of that comitology committee by fully respecting the prerogatives of its members, and not the protection of individuals. Consequently, the Court dismissed the applicant’s plea in law on that formal ground.663

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Inobservance of the right to participate in the decision-making. The infringement of the duty to consult or to obtain the consent of various EU organs composed of the Member States’ representatives, in breach of the relevant procedural rules, can cause annulment, on the ground of the infringement of an essential procedural requirement. Examples include the (purported) omission to consult the Economic and Social Committee,664 ad hoc committees,665 scientific committees assisting the EU institutions when drawing up directives,666 or Member States (in the context of the reduction of EU financial assistance).667 Where the institution or body illegally omitted to involve a Member State or another institution or body in the decision-making, lack of competence can also be pleaded as a ground for annulment (cf para 3.244 et seq), not only the breach of an essential procedural requirement.

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Breach of deadline by the defendant institution or body. Failure to comply with the procedural rules relating to the adoption of an act adversely affecting an individual, such as a failure on the part of the Commission to have adopted a decision within the time limit prescribed by the EU legislature, constitutes an infringement of an essential procedural requirement. A plea in law in this regard may be raised by the Courts of their own motion, since the review of such a flaw in the contested act is a matter of public policy.668

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659 Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering and Others v Commission (seamless steel tubes cartel) [EU:T:2004:221] para 425; Case T-349/03 Corsica Ferries France v Commission [EU:T:2005:221] para 77; Case T-23/09 CNOP and CCG v Commission [EU:T:2010:452] para 45. 660 Case 68/86 United Kingdom v Council (hormones) [EU:C:1988:85] para 48. 661 Case C-263/95 Germany v Commission (Standing Committee on Construction) [EU:C:1998:47] paras 31–32. 662 Case C-69/89 Nakajima All Precision v Council [EU:C:1991:186] paras 49–50. 663 Joined Cases T-134/03 and T-135/03 Common Market Fertilizers v Commission [EU:T:2005:339] para 79. 664 Joined Cases C-281/85, C-283/85 to C-285/85 and 287/85 Germany and Others v Commission (migration policy) [EU:C:1987:351] paras 37–39. 665 Case T-19/91 Vichy v Commission [EU:T:1992:28] para 37. 666 Case C-212/91 Angelopharm [EU:C:1994:21] paras 39–42 (preliminary reference on the validity of a Commission directive). 667 Case C-304/89 Oliveira v Commission [EU:C:1991:191] para 21. 668 Case C-549/12 P Germany v Commission (ERDF) [EU:C:2015:412] paras 92–94 and the case law cited.

216 Action for Annulment 3.272

Lack of authentication. Article 297 TFEU and the rules of procedure of the institutions or bodies specify the authentication of their documents. In practice, doubts as regards adequate authentication mostly emerge in relation to acts of the Commission, due to its complex system of power devolution to commissioners, directors general, directors and heads of unit under the empowerment and delegation procedures669 (cf para 3.90) and to the sheer number of individual implementing measures adopted by the Commission. Article 18 of the Rules of Procedure of the Commission670 specifies the requirements as regards language and signature in respect of documents adopted under each procedure. The lack of authentication of the act, if there is no serious doubt as regards the intention of the institution or body to adopt the contested measure, is not a sufficiently serious defect for declaring that measure non-existent (cf para 3.69). However, such defects may entail the annulment of a decision for infringement of an essential procedural requirement.671 In ICI and in Italy v Commission (structural funds), the Courts held that it was the mere failure to authenticate the act that constituted the infringement of an essential procedural requirement. It was not necessary to establish that the act was vitiated by some other defect, or that the lack of authentication resulted in harm to the person relying on it. Moreover, the authentication of the act must precede its notification because otherwise there would always be a risk that the notified text would not be identical to the text adopted by the Commission.672

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Overview. The third ground for annulment, ‘infringement of the Treaties or of any rule of law relating to their application’, is the most comprehensive one (cf para 3.240). If the contested act is found contrary to a superior norm (the norm of reference), the Courts will annul that act. It may also happen that the invalidity of an EU measure stems from the fact that the act on which it was based or which it implements – for instance, a piece of subsidiary EU legislation – is itself contrary to even superior norms. In this case, the applicant bringing an action for annulment against the contested measure may raise a plea of illegality, that is, request the Courts to declare the basic act illegal and to annul the contested measure insofar as it is vitiated by the illegality of the basic act673 (cf Chapter 3.7. Plea of Illegality).

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Interpretation of norms. When deciding whether the contested act is in breach of a superior norm, the Courts sometimes have to first determine the exact content and meaning of the latter. To this effect, the Courts carry out a literal, contextual and teleological interpretation of the norm whose breach is alleged.674 When examining the legislative goal of a certain provision, the Courts may take into account the travaux préparatoires (drafting history) of the superior norm.675

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Hierarchy of norms. The legality of the contested EU act is assessed against the superior norm whose breach is relied on by the applicant, that is, against the norm of reference (cf para 1.10). Primary EU law (the Treaties and the Charter of Fundamental Rights) are at the pinnacle of 669 Arts 13–14 of the Rules of procedure of the Commission (OJ 2000 L 308, p. 26). 670 Arts 13–14 of the Rules of procedure of the Commission (OJ 2000 L 308, p. 26). 671 Case C-137/92 P Commission v BASF and Others [EU:C:1994:247] paras 48–53 and 72–78. 672 Case C-286/95 P Commission v ICI [EU:C:2000:188] paras 42 and 65; Case C-107/99 Italy v Commission (structural funds) [EU:C:2002:59] paras 45–48. 673 See, eg Case T-526/10 Inuit Tapiriit Kanatami and Others v Commission (Inuit II) [EU:T:2013:215] paras 25–78. 674 Case T-251/00 Lagardère and Canal+ v Commission [EU:T:2002:278] paras 72 et seq; Joined Cases T-22/02 and T-23/02 Sumitomo Chemical and Sumika Fine Chemicals v Commission [EU:T:2005:349] paras 41 et seq; Case T-387/04 EnBW Energie Baden-Württemberg v Commission [EU:T:2007:117] para 102. 675 Case C-601/11 P France v Commission (spongiform encephalopathies) [EU:C:2013:465] paras 131–136.

Grounds for Review 217 the EU legal order. The second category is general principles of law, which may be used when interpreting Treaty articles and can also serve as a norm of reference on a stand-alone basis when the legality of an EU act is assessed. The third category is secondary legislation, which must comply with the Treaties and general principles of law. They are followed, in the hierarchy of norms, by delegated acts and implementing acts. At the bottom of that hierarchy are last-stage implementing measures, often of individual scope, whose legality is assessed against all the categories mentioned, as well as in the light of guidelines published by the institution or body which adopted them. Acts adopted by EU institutions or bodies which conclude or execute instruments of international law are illegal if they infringe primary EU law or general principles of law; however, international agreements to which the EU is party are above secondary EU legislation and other EU acts in the hierarchy of norms.676 (i) The Treaties and the Charter of Fundamental Rights Meaning. The term ‘Treaties’ in Article 263 denotes the TEU and the TFEU, the protocols and annexes to them,677 the Euratom Treaty,678 as well as the Accession Treaties concluded with new Member States and the Acts of Accession annexed to them.679 As a novelty brought by the Lisbon Treaty, by virtue of Article 6 TEU, the Charter of Fundamental Rights has the same legal value as the Treaties and is henceforth part of primary EU law. If the applicant shows that any EU act, against which he brought the action, is in breach of primary EU law, the Courts will annul the contested act.

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Practice. In practice, the most frequently raised plea in law concerning breach of the Treaties is the infringement of Article 296 TFEU (ex Article 253 TEC), that is, insufficient reasoning of the contested act (cf para 3.256 et seq). Among the policy-specific Treaty articles, the breach of Articles 101 and 102 TFEU is often put forward, since the General Court hears a large number of competition cases.

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(ii) General Principles of EU Law Background. While Community law started off as a sui generis legal order, it certainly lacked, in its early days, the detail in legal provisions which would have allowed the Court of Justice to base its judgments exclusively on the Treaty and secondary legislation. Therefore, to fill in the gaps, the Court of Justice resorted to general principles common to the legal systems of the Member States, such as legal certainty or protection of legitimate expectations.680 In addition, the Court recognised that some of the rights contained in the European Convention of Human Rights (ECHR) were also common to the legal systems of the Member States, and thus infused fundamental rights into the EU legal order.681 This practice obtained a Treaty basis when the

676 P Craig and G de Búrca, EU Law: Text, Cases and Materials (Sixth Edition, Oxford University Press, Oxford, 2015) 111–121. 677 Art 51 TEU. 678 Case C-62/88 Greece v Council (Chernobyl) [EU:C:1990:153] para 8. 679 Case C-91/03 Spain v Council (fishery resources) [EU:C:2005:174] paras 19–31; Case C-413/04 Parliament v Council (derogations in favour of Estonia) [EU:C:2006:741] paras 36–38. 680 For a thorough analysis, see T Tridimas, The General Principles of EU Law (Oxford University Press, Oxford, 2006). 681 D P Domenicucci and I Taccani, ‘Articolo 263 TFUE’ (in: Codice dell’Unione Europea operativo ed. by C C Gialdino, Simone, Napoli, 2012) 1890.

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218 Action for Annulment Maastricht Treaty entered into force in 1993.682 Today, most fundamental rights are protected by the Charter of Fundamental Rights, which became part of primary EU law with the entry into force of the Lisbon Treaty. However, the case law still refers to the corresponding provisions of the ECHR, since the content of fundamental rights has largely been defined in pre-Charter precedents. Another reason for referring to the ECHR alongside the Charter is that the EU Courts often rely on the interpretation of fundamental rights given by the European Court of Human Rights.683 3.279

Practice. The Courts interpret all rules contained in the Treaties, international agreements and secondary EU legislation in light of the general principles of law. Therefore, pleas in law drawn from the breach of these principles can be put forward even if the institution bases its act directly on the Treaties: the applicant may argue that the institution or body erred in law when it gave a certain interpretation to a given Treaty article. Moreover, the Courts annul EU acts concluding or executing instruments of international law, as well as secondary EU legislation and EU implementing measures, if they infringe general principles of law.684 Since the content of fundamental rights is often defined by reference to the case law of the European Court of Human Rights, pleas in law and legal arguments based on that case law are fully relevant. In the paragraphs that follow (cf paras 3.280–3.287), the content of some of the general principles of law is presented.

3.280

Legal certainty. The respect of the principle of legal certainty requires that rules involving negative consequences for individuals should be clear and precise, and their application predictable for those subject to them.685

3.281

Legitimate expectations. According to settled case law, three conditions must be satisfied in order to claim entitlement to the protection of legitimate expectations. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the Union authorities. Secondly, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Thirdly, the assurances given must comply with the applicable rules.686

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Equal treatment. The principle of equal treatment is breached where comparable situations are treated differently or different situations are treated in the same way, unless such treatment is objectively justified. The principle is now enshrined in Articles 20 and 21 of the Charter of Fundamental Rights.687 The difference or the similarity of the situations has to be shown in respect

682 Art F of the Maastricht Treaty provides that ‘The Union shall respect fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of Community law’. This provision was quoted in the pre-Lisbon case law: see Case C-229/05 P PKK and KNK v Council [EU:C:2007:32] para 77. The Lisbon Treaty replaced Art F by the current Art 6 TEU, which refers to the Charter of Fundamental Rights. 683 Case C-229/05 P PKK and KNK v Council [EU:C:2007:32] para 80; Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [EU:C:2008:461] para 360; Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [EU:C:2008:375] para 46. 684 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [EU:C:2008:461] paras 331–372. 685 Case C-76/06 P Britannia Alloys & Chemicals v Commission [EU:C:2007:326] para 79; Case C-226/08 Stadt Papenburg [EU:C:2010:10] para 45 (preliminary ruling on interpretation); Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission (legal professional privilege) [EU:C:2010:512] para 100. 686 Case T-282/02 Cementbouw Handel & Industrie v Commission [EU:T:2006:64] para 77; Case T-145/06 Omya v Commission [EU:T:2009:27] para 117. 687 Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission (legal professional privilege) [EU:C:2010:512] paras 54–55.

Grounds for Review 219 of a factual element which is relevant from the point of view of the application of the norm. When examining the presence of an objective justification, the Courts take into account inter alia the obligations imposed on the institution or body by case law, as well as the legislative goal of the norm applied by the institution or body.688 However, the applicant who suffered disadvantages because of a legally sound act of an institution or body cannot validly argue discrimination by referring to the more lenient treatment of another, unrelated economic operator being in a similar situation, which stems from the illegal (absence of) application of EU law in the latter’s respect. Indeed, it is settled case law that the principle of equal treatment must be reconciled with the principle of legality, thus a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party or on the unlawful omission to adopt an act regarding the latter.689 As the General Court ruled in Peróxidos Orgánicos, in the context of the review of a cartel decision, such an approach would be tantamount to laying down a principle of ‘equal treatment in illegality’ and to requiring the Commission to disregard the evidence in its possession to sanction the undertaking which has committed a punishable infringement, solely on the ground that another undertaking which may find itself in a comparable situation has unlawfully escaped being penalised.690 Proportionality. Measures adopted by the institutions or bodies must not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question. When there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.691 In quasi-penal (repressive) branches of law, the measure must be proportionate not only to the aim pursued, but also to the gravity of the penalised infringement. Where the Commission imposes fines for breaching Union competition rules, those fines must be proportionate to the gravity and the duration of the infringement,692 and the Commission has to apply the factors, according to which it assesses the gravity, in a way which is consistent and objectively justified.693

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Fundamental rights – effective judicial protection and rights of the defence. The principle of effective judicial protection is a general principle of Union law stemming from the constitutional traditions common to the Member States. It has been enshrined in Articles 6 and 13 of the ECHR and further reaffirmed by Article 47 of the Charter of Fundamental Rights.694 Apart from ensuring a proper judicial avenue for asserting rights (cf para 3.175 et seq), effective judicial protection also means that the Union authority, adopting an individual measure in respect of a particular person which affects him adversely, is bound to communicate the grounds on which the measure

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688 Case T-566/08 Total Raffinage Marketing v Commission (candle wax cartel) [EU:T:2013:423] paras 389, 419, 549–554. 689 Case C-134/84 Williams v Court of Auditors [EU:C:1985:297] para 14; Case T-327/94 SCA Holding v Commission [EU:T:1998:96] para 160. 690 Case T-120/04 Peróxidos Orgánicos v Commission (organic peroxides cartel) [EU:T:2006:350] para 77. 691 Case C-331/88 Fedesa and Others [EU:C:1990:391] para 13; Case C-180/96 United Kingdom v Commission (‘mad cow disease’) [EU:C:1998:192] para 96; Case T-30/05 Prym and Prym Consumer v Commission (needles cartel) [EU:T:2007:267] para 223. 692 Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering and Others v Commission (seamless steel tubes cartel) [EU:T:2004:221] para 532; Case T-566/08 Total Raffinage Marketing v Commission (candle wax cartel) [EU:T:2013:423] para 432. 693 Case T-43/02 Jungbunzlauer v Commission (citric acid cartel) [EU:T:2006:270] paras 226–228; Case T-446/05 Amann & Söhne and Cousin Filterie v Commission (industrial thread cartel) [EU:T:2010:165] para 171. 694 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [EU:C:2008:461] paras 335 et seq.

220 Action for Annulment has been based to the person or entity concerned, so far as possible, either when the measure is adopted (eg cartel fines) or, at the very least, as swiftly as possible after the adoption (eg the initial decision on fund freezing, cf para 3.267) in order to enable those persons or entities to exercise, within the periods prescribed, their right to bring an action.695 Communicating the grounds certainly includes the disclosure of the evidence on which the act is based, so that the person concerned may exercise his rights of the defence and, in particular, his right to be heard.696 There are examples for the breach of the rights of the defence being construed as an infringement of an essential procedural requirement (second ground for annulment foreseen in Article 263(2) TFEU) and as an ‘infringement of the Treaties or of any rule of law relating to their application’ (third ground for annulment foreseen in the said article). The qualification may matter, since only the infringement of the second ground may be examined ex officio by the Courts and raised by the applicant at any stage of the procedure (cf paras 3.268 and 4.241). 3.285

Presumption of innocence. In repressive branches of law, such as EU competition law, the institutions and the Courts have to apply the principle of the presumption of innocence, resulting in particular from Article 6(2) of the ECHR. The presumption of innocence is also a general principle of EU law and, as a fundamental right, is now enshrined in Article 48 of the Charter of Fundamental Rights. It means that any doubt in the mind of the Courts must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Courts cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if they still entertain any doubts on that point, in particular in proceedings for annulment of a decision imposing a fine.697 However, the Commission and the Courts may presume that the parent company holding close to 100 per cent of the shares of the subsidiary directly involved in the infringement of competition rules is also responsible for the infringement, since the two companies form, bar truly exceptional circumstances, a single undertaking within the meaning of Articles 101 and 102 TFEU. The presumption of innocence must be adapted to the fact that the subject of competition law is not the company in the legal sense but the undertaking in the economic sense.698 Furthermore, it is important to note that the mere fact that an EU measure has serious adverse effects on a person’s financial situation does not in itself mean that it belongs to quasi-penal law. In particular, the General Court ruled in Anbouba, in the context of the armed conflict in Syria, that Council decisions on fund freezing were preventive in nature and not repressive. Therefore, the presumption of innocence did not apply. The Council could validly presume that directors of large corporations were associated with the government and could apply restrictive measure to their funds in the EU.699

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Nullum crimen sine lege, nulla poena sine lege. The principle of the legality of criminal offences and penalties (nullum crimen sine lege, nulla poena sine lege), as enshrined in particular in

695 Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission (pre-insulated pipes cartel) [EU:C:2005:408] paras 462–463; Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [EU:C:2008:461] paras 336–339. 696 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [EU:C:2008:461] para 352. 697 Case T-112/07 Hitachi and Others v Commission (gas insulated switchgear cartel) [EU:T:2011:342] paras 58–60. 698 Case T-541/08 Sasol and Others v Commission (candle wax cartel) [EU:T:2014:628] para 140; Case T-548/08 Total v Commission (candle wax cartel) [EU:T:2013:434] paras 122–123, confirmed by Case C-597/13 P Total v Commission (candle wax cartel) [EU:C:2015:613] on this point. 699 Case T-592/11 Anbouba v Council [EU:T:2013:427] paras 40, 42 and 54.

Grounds for Review 221 Article 49(1) of the Charter of Fundamental Rights, requires that Union rules define offences and penalties clearly.700 However, in the context of the predictability of cartel fines under the 2006 guidelines on fine-setting,701 the General Court held, in Sasol, that while competition law is indeed similar to criminal law, it is not at the ‘heart’ of criminal law. Outside the ‘hard core’ of criminal law, the guarantees in matters of criminal law laid down in Article 6 of the ECHR will not necessarily apply with their full stringency.

If fines were predictable, the companies could make a cost–benefit analysis regarding the profitability of cartels, by factoring in the chances of discovery by the Commission.702 Other rights. The above presentation is non-exhaustive. Fundamental rights also include, for example, the right to property703 and the principle that the institutions and bodies have to finish the administrative procedure and adopt a measure within a reasonable time.704

3.287

(iii) International Agreements Place in the hierarchy of norms. In the EU legal order, international law agreements to which the EU is party are placed below the Treaties and general principles of law and above secondary EU legislation and other EU acts.705

3.288

Legality of international agreements assessed against the Treaties and general principles of law. International agreements entered into by the EU and/or its Member States must not be contrary to the Treaties, the Charter of Fundamental Rights, and the general principles of law. First, the compatibility of international agreements with the Treaties is essentially ensured through an ex ante review under Article 218(11) TFEU regarding the drafts of the international agreements that the EU intends to conclude706 (cf Chapter 3.9. Opinions on International Agreements to be Concluded by the EU). Where the opinion of the Court of Justice is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised. Secondly, however, as an ex post review, the Court of Justice also has the power to annul, further to an action for annulment, the decision of the Council to conclude an international agreement on behalf of the EU if the agreement is in breach of the Treaties or of general principles of law.707 It may also annul EU acts that execute measures adopted under international law if those acts are

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700 Case C-352/09 P ThyssenKrupp Nirosta v Commission (stainless steel cartel) [EU:C:2011:191] para 80. 701 Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2). 702 Case T-541/08 Sasol and Others v Commission (candle wax cartel) [EU:T:2014:628] paras 206–207. See also ECtHR Case Jussila v Finland (73053/01) 23 November 2006, § 43. 703 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [EU:C:2008:461] paras 355–537. 704 Case T-497/07 CEPSA v Commission [EU:T:2013:438] paras 239–250. 705 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [EU:C:2008:461] paras 308 and 316. See also Case C-61/94 Commission v Germany (International Dairy Arrangement) [EU:C:1996:313] para 52; Case C-311/04 Algemene Scheeps Agentuur Dordrecht [EU:C:2006:23] para 25; Case C-308/06 Intertanko and Others [EU:C:2008:312] para 42. 706 Art 218(11) TFEU provides that before an international agreement is concluded by the Council in the name of the EU, a Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether the envisaged agreement is compatible with the Treaties. 707 Case C-122/95 Germany v Council (Framework Agreement on Bananas) [EU:C:1998:94] para 72. The Council decision was annulled because the international agreement infringed the principle of non-discrimination.

222 Action for Annulment in breach of the Treaties or of a general principle of EU law, even if the instrument of international law affords no latitude as regards its execution.708 3.290

Where secondary EU legislation and other EU measures must be compatible with international agreements. Pursuant to Article 216(2) TFEU, international agreements concluded by the European Union bind its institutions and consequently prevail over the acts adopted by the EU institutions.709 If certain conditions are fulfilled, the Courts assess the legality of secondary EU legislation and of other EU measures by reference to the provisions of international agreements, which means that, in these situations, the breach of an international agreement can be a ground for annulment, or a ground for declaration of invalidity (cf para 3.703) or inapplicability (cf para 3.685) in the context of incidental review. The conditions in which international agreements can be a norm of reference for assessing legality are examined in the following paras (cf paras 3.291–3.292).

3.291

EU bound by the agreement. The first condition to be fulfilled so that the incompatibility with rules of an international agreement could serve as a ground for annulment is that the EU must be bound by those rules.710 In this context, in Patentability of biotechnological innovations, the Court of Justice recalled that the lawfulness of an act adopted by EU institutions does not depend on its conformity with an international agreement to which the EU is not a party, such as the European Patent Convention (EPC) signed at Munich on 5 October 1973. Therefore, the EU was not bound by that agreement.711 Nonetheless, in other cases – in the context of references on the validity of EU acts under Article 267 TFEU – the Court of Justice held that the EU may be bound by an international agreement to which it is not party where the EU has assumed, under the Treaties, the powers previously exercised by the Member States in the field covered by the international agreement. Such was the case in International Fruit Company, where the Court of Justice considered that the EU (then EEC) was bound by the General Agreement on Tariffs and Trade (GATT), signed by its Member States before the creation of the EEC.712 Conversely, in Intertanko, the Court of Justice considered that the EU was not bound by the International Convention for the Prevention of Pollution from Ships, signed in London on 2 November 1973 (Marpol). In fact, even if the EU Member States were parties to Marpol, they had not fully transferred the powers previously exercised by them to the EU. Therefore, the legality of a directive713 adopted by the Council and the Parliament, having the objective of incorporating certain rules of Marpol into EU law, could not be assessed against that convention.714

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Nature of the provision of international law. Where the EU is bound by an international agreement, there is still a second cumulative condition, related to the nature of the provision of

708 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [EU:C:2008:461] paras 289, 305, 327 and 371–372. The fund-freezing measure adopted by the EU was annulled on the grounds of breach of the rights of the defence and the right to property. 709 Case C-401/12 P Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht [EU:C:2015:4] para 52. 710 Joined Cases C-21/72 to C-24/72 International Fruit Company and Others [EU:C:1972:115] para 7; Case C-308/06 Intertanko and Others [EU:C:2008:312] para 44. 711 Case C-377/98 Netherlands v Parliament and Council (patentability of biotechnological inventions) [EU:C:2001:523] para 52. 712 Joined Cases C-21/72 to C-24/72 International Fruit Company and Others v Produktschap voor Groenten en Fruit [EU:C:1972:115] paras 8–18 (reference on the validity of Commission regulations in light of the GATT Agreement). 713 Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements (OJ 2005 L 255, p. 11). 714 Case C-308/06 Intertanko and Others [EU:C:2008:312] paras 49–50.

Grounds for Review 223 international law in question, which must be fulfilled so that the Courts review the legality of an EU act in light of that provision. In International Fruit Company and Intertanko, in the context of incidental review under Article 267, the Court of Justice found that natural or legal persons could not rely on the incompatibility of EU acts with provisions of the GATT and UNCLOS715 agreements, since the latter did not establish rules intended to apply directly and immediately to individuals and to confer upon them rights or freedoms capable of being relied upon against States – that is, they did not have direct effect.716 The lack of direct effect is, however, irrelevant in cases brought by Member States. It is nonetheless settled case law that, having regard to their nature and structure, the WTO agreement,717 and the TRIPS718 and TBT719 agreements which are part of it, are not, in principle, among the rules in the light of which the Courts review the lawfulness of EU measures.720 The reasons behind this solution were set out in the Portugal v Council (textiles) case. The Court of Justice held that those agreements were founded on the principle of negotiations with a view to ‘entering into reciprocal and mutually advantageous arrangements’ between the contracting parties, one of them being the EU.721 However, some other contracting parties, which are important commercial partners of the EU, do not ensure judicial review of their domestic acts against the WTO agreements. Therefore, if the EU Courts reviewed the legality of EU acts on the basis of those agreements, it would constitute a lack of reciprocity and would deprive the legislative or executive organs of the EU of the scope for manoeuvre enjoyed by their counterparts in the trading partners of the EU. For these reasons, the Court of Justice concluded that the legality of EU acts is, in principle, not assessed against the WTO agreements.722 Exception: where an EU act is intended to implement an international agreement or refers to it explicitly. In spite of the Portugal v Council (textiles) case, the Court of Justice held inter alia in Petrotub and Republica that where the [EU] intended to implement a particular obligation assumed in the context of the WTO, or where the [EU] measure refers expressly to precise provisions of the agreements and understandings contained in the annexes to the WTO Agreement, it is for the Court to review the legality of the [EU] measure in question in the light of the WTO rules.723

Both exceptional situations were present in Petrotub and Republica: the Court of Justice pointed out that, according to its preamble, the purpose of the 1995 Basic Anti-dumping Regulation724 715 The United Nations Convention on the Law of the Sea, signed in Montego Bay on 10 December 1982 (UNCLOS), approved on behalf of the European Community by Council Decision 98/392/EC of 23 March 1998 (OJ 1998 L 179, p. 1). 716 Case C-308/06 Intertanko and Others [EU:C:2008:312] paras 64–65. 717 Agreement establishing the World Trade Organization, concluded at Marrakesh on 15 April 1994 (WTO agreement). 718 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), forming Annex 1C to the Agreement establishing the World Trade Organization. 719 Agreement on Technical Barriers to Trade (TBT), contained in Annex 1A to the Agreement establishing the World Trade Organization. 720 Case C-149/96 Portugal v Council (textiles) [EU:C:1999:574] para 47; Case C-377/98 Netherlands v Parliament and Council (patentability of biotechnological inventions) [EU:C:2001:523] para 52. 721 The European Communities and their Member States became members of the WTO on 1 January 1995. 722 Case C-149/96 Portugal v Council (textiles) [EU:C:1999:574] paras 43–47. See also Joined Cases C-27/00 and C-122/00 Omega Air and Others [EU:C:2002:161] para 93; Case C-76/00 P Petrotub and Republica v Council [EU:C:2003:4] para 53; Case C-93/02 P Biret International v Council [EU:C:2003:517] para 52. 723 Case C-76/00 P Petrotub and Republica v Council [EU:C:2003:4] para 54. See also Case C-93/02 P Biret International v Council [EU:C:2003:517] para 53; Case T-201/04 Microsoft v Commission [EU:T:2007:289] para 803; Case C-70/87 Fediol v Commission [EU:C:1989:254]; Case C-69/89 Nakajima All Precision v Council [EU:C:1991:186]. For a critical analysis of the latter two judgments, see P J Kuijper and M Bronckers, ‘WTO law in the European Court of Justice’ (2005) Common Market Law Review 1313, 1324–1325. 724 Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1).

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224 Action for Annulment was to transpose into EU law as far as possible the new and detailed rules contained in the GATT 1994 Anti-dumping Code.725 Therefore, the Court annulled the contested anti-dumping regulation concerning imports of seamless steel pipes and tubes originating inter alia in Romania (which was based on the 1995 Basic Anti-dumping Regulation) on the ground that the Council did not provide in it an adequate reasoning as to the calculation of dumping margin which would have allowed the parties and the Courts to verify the calculation’s compatibility with the 1994 Anti-dumping Code.726 Conversely, in Omega Air, the Court of Justice held that the Council regulation on registration of jet aeroplanes,727 the legality of which was disputed through a preliminary reference on validity, was not intended to implement in the EU legal order a particular obligation assumed in the context of the WTO, nor did it refer expressly to precise provisions of the WTO agreements. Therefore, it did not examine the legality of the regulation at issue in light of WTO rules.728 3.294

Where the EU act forces the Member States to breach a mixed agreement. The legality of an EU act (including a piece of secondary legislation) can be assessed in the light of a mixed international agreement729 where the act’s provisions impose such obligations on the Member States that imply that the latter would need to breach the mixed agreement. In the Patentability of biotechnological innovations case, the Netherlands brought an action for annulment against a directive of the Parliament and the Council730 which required the Member States to protect biotechnological inventions by means of their national patent law. The Court of Justice held that the legality of the directive was to be reviewed against the Convention on Biological Diversity signed in Rio de Janeiro on 5 June 1992 (CBD).731 The Court recalled that, even if the CBD’s provisions had no direct effect, it did not preclude review by the Courts of compliance with the obligations incumbent on the EU as a party to that agreement.732 It also held that, unlike the WTO agreement, the CBD agreement was not strictly based on reciprocal and mutually advantageous arrangements.733 (iv) Secondary Legislation

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Place in the hierarchy of norms and practice. Secondary EU legislation, that is, acts adopted under the ordinary legislative procedure or a specific legislative procedure, are superior norms to delegated acts (Article 290 TFEU), implementing acts (Article 291 TFEU) or other implementing measures of general or individual scope. Therefore, the legality of the latter is assessed against legislative acts, in most cases by reference to the provisions of secondary legislation on the basis

725 Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103; the 1994 Anti-dumping Code), contained in Annex 1A to the Agreement establishing the World Trade Organization. 726 Case C-76/00 P Petrotub and Republica v Council [EU:C:2003:4] paras 53–64 and 86–93. 727 Council Regulation (EC) No 925/1999 of 29 April 1999 on the registration and operation within the Community of certain types of civil subsonic jet aeroplanes which have been modified and recertificated as meeting the standards of volume I, Part II, Chapter 3 of Annex 16 to the Convention on International Civil Aviation, third edition (July 1993) (OJ 1999 L 115, p. 1 and OJ 1999 L 120, p. 47). 728 Joined Cases C-27/00 and C-122/00 Omega Air and Others [EU:C:2002:161] para 94–96. 729 Mixed agreements are international conventions signed both by the EU and its Member States. 730 Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions (OJ 1998 L 213, p. 13). 731 Approved by the European Community by Council Decision 93/626/EEC of 25 October 1993 (OJ 1993 L 309, p. 1). 732 Case C-377/98 Netherlands v Parliament and Council (patentability of biotechnological inventions) [EU:C:2001:523] para 54; see also Case C-162/96 Racke [EU:C:1998:293] paras 45, 47 and 51. 733 Case C-377/98 Netherlands v Parliament and Council (patentability of biotechnological inventions) [EU:C:2001:523] para 53.

Grounds for Review 225 of which they were adopted. For instance, the legality of regulations imposing definitive antidumping duties, which are implementing regulations, is reviewed by reference to the provisions of the EU’s Basic Anti-Dumping Regulation,734 which is a legislative regulation and provides their legal basis.735 (v) Guidelines and Notices Guidelines and notices bind the issuing institution or body but not the Courts. In some areas, eg antitrust, mergers and State aid, the Commission has wide discretion when it carries out complex economic or social assessments. Economic operators nonetheless need more specific orientations for their business planning in order to be able to foresee, for instance, if their planned concentration would be authorised, or if the State aid envisaged by a Member State would be considered compatible with the common market. Another example is fine-setting in the field of competition law, where an even-handed Commission approach is needed. Therefore, with a view to increasing transparency and legal certainty for the undertakings concerned, the Commission has published guidelines and notices inter alia in these fields.736 By adopting and publishing such rules of conduct and announcing that they will henceforth apply in a given field, the Commission imposes a limit on the exercise of its discretion. Breach of the guidelines and notices amounts to the breach of the principle of equal treatment or that of the protection of legitimate expectations, since the operators concerned placed their trust in the Commission’s applying those rules when they made their business decisions.737 Consequently, the legality of Commission decisions is assessed against the provisions contained in guidelines and notices issued in the relevant field,738 and the infringement of the latter is a ground for annulment. On the other hand, guidelines and notices do not bind the Courts, and their proper application by the Commission in no way implies that the decisions based on them are legally sound.739 On the contrary, if the application of such rules brings about decisions that are incompatible with binding EU norms (including general principles of law), the Courts will annul those decisions. For instance, in Total Raffinage Marketing, the General Court held that the Commission, which had applied its 2006 Guidelines on fine-setting740 strictly and mechanically to the applicant, breached the principle of equal treatment and that of proportionality when determining the amount of the fine, essentially because of an erroneous method of calculation that was inherent to the guidelines. Therefore, the Court partially annulled the contested decision.741

734 Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21). 735 See, eg Case T-749/16 Stemcor London and Samac Steel Supplies v Commission [EU:T:2019:310]. 736 See, in the field of cartels and antitrust, Guidelines on the method of setting fines imposed pursuant to Article 23(2) (a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2); Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17); in the field of State aid, European Union Guidelines for State aid in the agricultural and forestry sectors and in rural areas 2014 to 2020 (OJ 2014 C 204, p. 1); Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty (OJ 2014 C 249, p. 1). 737 Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission (pre-insulated pipes cartel) [EU:C:2005:408] paras 211–213; Case T-69/04 Schunk and Schunk KohlenstoffTechnik v Commission (carbon and graphite cartel) [EU:T:2008:415] para 44. 738 Case T-349/03 Corsica Ferries v Commission [EU:T:2005:221] paras 139 and 178–181. 739 Joined Cases C-75/05 P and C-80/05 P Germany and Others v Kronofrance [EU:C:2008:482] para 65; Joined Cases T-443/08 and T-455/08 Freistaat Sachsen and Others v Commission [EU:T:2011:117] para 104. 740 Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2). 741 Case T-566/08 Total Raffinage Marketing v Commission (candle wax cartel) [EU:T:2013:423] paras 548–554, confirmed on appeal in Case C-634/13 P Total Marketing Services v Commission (candle wax cartel) [EU:C:2015:614].

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226 Action for Annulment (vi) Administrative Practice 3.297

Divergent decisions in unrelated cases are no grounds for annulment but may influence the Courts in practice. The substantive legality of decisions adopted by institutions or bodies is only assessed against superior norms. It follows that decisions in similar but unrelated cases in which the institution or body reached different conclusions are, in principle, irrelevant. As the Courts have repeatedly held, the legality of individual decisions must be assessed by reference to the circumstances of each case, and the institution’s or body’s assessments of the facts in earlier cases cannot be transposed to the case at issue.742 Moreover, decisions concerning other cases can be no more than indicative when the circumstances of the cases are not the same.743 The Courts also refer to the necessity to avoid ‘equal treatment in illegality’ (cf para 3.282 in fine). However, from the point of view of the representatives of the applicant, it may still be useful to mention other decisions in which the defendant chose different solutions in similar cases, where those solutions would have been more favourable to the applicant. Such a reasoning in the pleadings may show to the Courts that the interpretation of superior norms proposed by the applicant was shared in other cases by the institution or body, and was considered to be workable in practice. While the Courts do not refer to the Commission’s practice in their own appraisal, an ample presentation, in the judgments, of the arguments of the applicant on inconsistent administrative practice may be a hint that those arguments swayed the Courts. (vii) Reference to Judgments Handed Down after the Adoption of the Contested Decision

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Later case law can be applied to earlier assessment by the institution or body. Some landmark judgments of the Courts may introduce an entirely new test applicable to specific fields of law. For instance, this was the case of the Altmark judgment in respect of the application of State aid rules to services of general economic interest.744 In BUPA, the General Court had to answer the question of whether the legality of a Commission decision adopted before the Altmark judgment could be assessed according to the Altmark test. The General Court observed that the Commission could not be aware of the Altmark test when it adopted its decision. It added, however, that the Court of Justice did not place any temporal limitation on the scope of its findings in Altmark. Therefore, those findings, resulting from an interpretation of Articles 106 and 107 TFEU, were fully applicable to the factual and legal situation of the BUPA case. The General Court also noted that the interpretation which the Court of Justice gives of a provision of Union law is limited to clarifying and defining the meaning and scope of that provision as it ought to have been understood and applied from the time of its entry into force.745 (viii) Errors of Fact or Assessment

3.299

Error of fact and error of assessment are technically also breach of superior norms. Article 263 TFEU does not foresee error of fact and error of assessment as distinct grounds for annulment. However, it is clear that if the Commission established, for instance, the presence of a State aid or

742 Case T-282/06 Sun Chemical Group and Others v Commission [EU:T:2007:203] para 88. 743 Case C-167/04 P JCB Service v Commission [EU:C:2006:594] paras 201 and 205; Case C-76/06 P Britannia Alloys & Chemicals v Commission (zinc phosphate cartel) [EU:C:2007:326] para 60; Joined Cases T-141/07, T-142/07, T-145/07 and T-146/07 General Technic-Otis and Others v Commission (elevators cartel) [EU:T:2011:363] para 108. 744 Case C-280/00 Altmark Trans und Regierungspräsidium Magdeburg [EU:C:2003:415]. 745 Case T-289/03 BUPA and Others v Commission [EU:T:2008:29] paras 157–160.

Grounds for Review 227 an abuse of dominant position on the basis of an appraisal vitiated by a factual error or an error of assessment, it could not validly apply Article 107 or 102 TFEU. Therefore, such a flaw is also technically a breach of a superior norm. Calculation errors746 and assessments running counter to basic market mechanisms747 are flaws which justify annulment, even in areas where the Courts only exercise marginal review, such as State aid or anti-dumping.748 The success of pleas in law based on such defects depends to a large extent on how clearly the applicants explain that the assessment in the contested act does not reflect the real functioning of markets. (ix) National Law Interpretation of national law is a question of fact. Article 263(2) only mentions, as the third ground for annulment, infringement of the Treaties or of any rule of law relating to their application. Under settled case law, where the legality of an EU act implies the assessment of its compatibility with national law, the question of the interpretation of national law is a factual question.749

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3.1.7.5. Misuse of Powers Concept. Misuse of powers originates in French law of civil procedure (détournement de pouvoir), and has its equivalents in several European legal systems.750 It means that an EU institution or body has used its powers for purposes other than those foreseen by law.751 Rules regarding proof are stringent. A measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been adopted solely or mainly for ends other than those for which the power in question was conferred by EU law or with the aim of evading a procedure specifically prescribed by EU law for dealing with the circumstances of the case.752

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Achieving a purpose other than that for which the power was granted or evading the prescribed procedure. According to settled case law, where more than one aim is pursued, even if the grounds of a decision include, in addition to proper grounds, an improper one, that would not make the decision invalid for misuse of powers, since it does not nullify the main aim.753 One of the few cases where the applicant succeeded in establishing that an abusive goal was the main reason behind the contested measure is the Turner case. The applicant brought an action seeking the annulment of a Commission decision on her compulsory transfer to another position, arguing that the real reason behind her transfer was a disguised disciplinary measure inflicted on her

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746 Case T-349/03 Corsica Ferries v Commission [EU:T:2005:221] paras 243 et seq. 747 Case T-107/04 Aluminium Silicon Mill Products v Council [EU:T:2007:85] paras 87–116; Case T-427/08 CEAHR v Commission [EU:T:2010:517] paras 91–109. 748 Case T-107/04 Aluminium Silicon Mill Products v Council [EU:T:2007:85] paras 43 and 71; Case T-427/08 CEAHR v Commission [EU:T:2010:517] para 65. 749 Case C-318/09 P A2A v Commission [EU:C:2011:856] para 125; Case T-309/12 Zweckverband Tierkörperbeseitigung v Commission [EU:T:2014:676] point 222. 750 D P Domenicucci and I Taccani, ‘Articolo 263 TFUE’ (in: Codice dell’Unione Europea operativo ed. by C C Gialdino, Simone, Napoli, 2012) 1892. 751 A H Türk, Judicial Review in EU Law (Edward Elgar Publishing, Cheltenham, 2009) 141; M Wathelet and J Wildemeersch, Contentieux européen (Larcier, Brussels, 2010) 181. 752 Case C-442/04 Spain v Council (restrictions on fishing effort) [EU:C:2008:276] para 49; Joined Cases C-274/11 and C-295/11 Spain and Italy v Council (unitary patent protection) [EU:C:2013:240] para 33. 753 Case C-2/54 Italy v High Authority [EU:C:1954:8] paras 37 and 54; Case T-266/97 Vlaamse Televisie Maatschappij v Commission [EU:T:1999:144] para 131; Case T-87/05 EDP v Commission [EU:T:2005:333] para 87.

228 Action for Annulment because of the differences of opinion between her and her superiors. The Court of Justice largely accepted these allegations, and held that those differences should have been settled by objective examination and not by means of indirect measures designed to remove the applicant from her duties, with no indication of the true reasons and in disregard of her professional interests. Therefore, it held that the Commission misused its powers by assigning the applicant to duties which were manifestly inappropriate to her training and previous service record.754 Conversely, in the Unitary patent protection case, Spain and Italy did not succeed in establishing that the main aim of the Council decision authorising enhanced cooperation in the field of unitary patent protection was to arbitrarily deprive them of their right to oppose the adoption of legislation. The planned EU regulation in the field of linguistic arrangements regarding the grant of patents offering EU-wide protection required a unanimous vote in the Council under Article 118(2) TFEU. Admittedly, the creation of the said enhanced cooperation was, to a large extent, the consequence of the well-known opposition of Spain and Italy to the proposed linguistic arrangement, which followed the English–French–German linguistic regime of the European Patent Office (EPO).755 It was against this backdrop that 25 Member States requested the Council to authorise enhanced cooperation, which it duly did, in the contested decision that was adopted by qualified majority.756 The contested decision had the implication that Spain and Italy could not veto the adoption of the proposed regulation on linguistic arrangements, as only participants of the enhanced cooperation had voting rights in the Council. While the Court of Justice did not deny that the contested decision, authorising the enhanced cooperation, had such a practical effect on voting, it held that, having regard to the impossibility of reaching common arrangements for the whole Union within a reasonable period in respect of unitary patent protection, the creation of the enhanced cooperation at issue did not constitute a circumvention of the requirement of unanimity, and contributed to the process of integration. Therefore, it rejected the plea based on misuse of power.757 3.303

Objective, relevant and consistent evidence. It is for the applicant putting forward a plea in law based on misuse of powers to show that the institution or body used its competence for achieving a purpose other than that for which it was conferred on it by the Treaty or by secondary legislation, or for evading the prescribed procedure.758 Objective, relevant and consistent evidence is required in this respect.759 While mere assumptions clearly do not meet the standard of proof, sufficiently precise and consistent indicia supporting the truth or at least the probability of the applicant’s allegations may constitute prima facie evidence.760 If, by submitting such prima facie evidence, the applicant begins to show the presence of an unlawful purpose behind the contested measure, he may convince the General Court to use its investigative powers.761 The use of those investigative powers is all the more important because the unlawful purpose of the measure may often be established only on the basis of institution documents not available to the applicant, for

754 Joined Cases C-59/80 and C-129/80 Turner v Commission [EU:C:1981:170] paras 67–70. Although this was a staff case, the demonstration as regards misuse of power is common to staff cases and actions for annulment. For another successful demonstration of misuse of power, see Case C-148/87 Frydendahl Pedersen v Commission [EU:C:1988:438] paras 12–13. 755 A non-EU international organisation established by the European Patent Convention of 1973. 756 Art 20 TEU. 757 Joined Cases C-274/11 and C-295/11 Spain and Italy v Council (unitary patent protection) [EU:C:2013:240] para 37. 758 Case T-17/93 Matra Hachette v Commission [EU:T:1994:89] para 173. 759 Case C-310/04 Spain v Council (support scheme for cotton) [EU:C:2006:521] para 69. 760 Case T-146/89 Williams v Court of Auditors [EU:T:1991:61] para 89; Joined Cases T-40/07 P and T-62/07 P de Brito Sequeira Carvalho v Commission [EU:T:2009:382] para 173 (both are staff cases). 761 See Subsection 4.2.7.3. Measures of Inquiry.

Grounds for Review 229 instance, internal correspondence or correspondence with third parties. In Ufex, the applicant relied on the alleged content of a letter sent by a Commissioner to the President of the Commission, of which it was not in possession. The General Court considered that the letter did not constitute sufficient evidence of a misuse of powers, since it had not been produced and its very existence was unconfirmed.762 However, on appeal, the Court of Justice held that the General Court could not validly reject, on such grounds, the applicant’s request to order production of a document which was apparently material to the outcome of the case. It also noted that, in the proceedings before the General Court, the applicant specified the author, the addressee and the date of the letter it wished to be produced. The Court of Justice thus quashed the first instance judgment and referred the case back to the General Court.763

3.1.7.6. Scope of the Review (i) Main Principles Review based on facts and law as they stood at the time of the adoption of the act. In the context of an action for annulment, the legality of the contested act must be assessed on the basis of the facts and the law as they stood at the time when that act was adopted, and not at the time of its entry into force or of the delivery of the judgment of the Courts.764 In the case of decisions in procedures where the parties have a duty to supply information to the institution or body (eg State aid), the lawfulness of the decision is to be assessed in the light of the information available to the institution or body when the decision was adopted.765

3.304

Review based on the reasoning contained in the contested act. When examining the legality of an act which must be reasoned because of its nature, the Courts take into account, as a rule, only the reasoning present in its text. Complementary evidence and assessment meant to substantiate the statements in the contested act, put forward by the defendant at the stage of proceedings before the Courts, cannot be taken into account because these cannot remedy the flaws of the act and the Courts cannot substitute a new reasoning to the erroneous appraisal contained in the act.766 However, the Courts do take into consideration evidence or supplementary assessment to which the contested act refers in footnotes or annexes, provided that the applicant had access to those documents before the adoption of the act and could understand in which context the institution or body intended to rely on them, as such additional information pertains to the circumstances in which the act was adopted and belongs to its reasoning in the broader sense (cf para 3.259). Exceptionally, in some specific fields, such as public procurement or fund freezing, the reasoning or evidence underpinning the act may be communicated to the persons concerned in separate documents (cf para 3.262). However, even in these fields, new reasoning put forward in the Court proceedings cannot remedy the illegalities of the act.

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762 Case T-77/95 SFEI and Others v Commission [EU:T:1997:1] paras 116–122. 763 Case C-119/97 P Ufex and Others v Commission [EU:C:1999:116] paras 107–113. 764 Joined Cases C-15/76 and C-16/76 France v Commission (EAGGF) [EU:C:1979:29] para 7; Joined Cases T-79/95 and T-80/95 SNCF and British Railways v Commission [EU:T:1996:155] para 48; T-115/94 Opel Austria v Council [EU:T:1997:3] paras 87–88. 765 Case C-197/99 P Belgium v Commission (State aid in steel sector) [EU:C:2003:444] para 86; Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [EU:C:2008:375] para 90. 766 Case C-164/98 P DIR International Film and Others v Commission [EU:C:2000:48] para 38; Case T-560/08 P Commission v Meierhofer [EU:T:2010:192] para 59.

230 Action for Annulment (ii) The Role of Pleadings in the Review 3.306

Review is based on the pleas in law, the Courts do not do the work of the lawyers. The EU Courts only review the legality of acts of EU institutions or bodies on the basis of the pleas in law and arguments put forward by the applicant and, where applicable, by the intervener supporting the applicant (cf para 4.182 et seq on the construction of pleas in law). Under settled case law, It is for the applicant and its lawyer to set out the factual and legal grounds on which the action is based and not for the Court to do their work by trying to locate and identify, from all the evidence to which the application makes general reference, the information which may support the claims formulated in the application.767

If the Courts conclude that all the pleas in law raised by the applicant are unfounded, they dismiss the action for annulment, even if, in a parallel case with identical facts, they annul the – possibly same – contested act in respect of that other applicant (cf para 3.241). It is thus perfectly possible that an act of general application or a bundle of individual decisions against which several actions for annulment have been brought is annulled in respect of only one or some of the applicants, whose representatives managed to establish the illegality of the act, while it remains valid and applicable to other applicants, who did not raise any successful plea (cf para 3.329). The only pleas in law that the EU Courts may raise of their own motion are those which are a matter of public policy (cf para 3.243), that is, in the context of the review of the merits of the case, the lack of competence to adopt the act (cf para 3.244) and the infringement of an essential procedural requirement, including in particular the failure to provide adequate reasons (cf para 3.257). There is, however, no guarantee that the Courts would identify such illegalities of their own motion. Therefore, it is advised for the applicants to plead them clearly. 3.307

The pleas and arguments do not need to correspond to arguments put forward in the administrative procedure. Article 263 TFEU does not provide for any pre-litigation phase, in which the prospective applicant would already need to raise the pleas that it might intend to put forward later in the Court procedure. This feature of the actions for annulment is a notable difference from infringement actions (cf para 2.48), actions for failure to act (cf para 3.349), staff cases (cf para 3.513) and intellectual property cases (cf para 3.562). In the latter proceedings, a pre-litigation stage is provided for by the relevant procedural provisions, which aims to seek a non-judicial solution to the dispute, and, consequently, the applicant may only put forward grounds of illegality in the Court action which correspond, or are at least related, to the arguments of law or fact he relied on in the pre-litigation phase. Conversely, in actions for annulment, the administrative procedure leading up to the adoption of the contested decision cannot be regarded as a pre-litigation stage. It follows that the applicant is fully entitled to put forward new grounds and to dispute new aspects of illegality in the Court action, irrespective of what he argued during the administrative stage. In this regard, in Knauf Gips, the Court of Justice held, in the context of cartels, that the mere fact that an applicant did not dispute a finding contained in the statement of objections in its response to that statement did not restrict in any way its right to put forward any argument in the action for annulment768 (cf para 4.194). In Galp Energía España,

767 Order of 29 November 1993 in Case T-56/92 Koelman v Commission [EU:T:1993:105] para 23; Case T-63/06 Evropaïki Dynamiki v OEDT [EU:T:2010:368] para 80; Order of 21 April 2015 in Case T-580/13 Real Express v OHMI – MIP Metro (real) [EU:T:2015:245] para 31. See also Case T-461/07 Visa Europe and Visa International Service v Commission [EU:T:2011:181] paras 50–51 and 53. 768 Case C-407/08 P Knauf Gips v Commission (plasterboard cartel) [EU:C:2010:389] paras 89–91.

Grounds for Review 231 the Court of Justice made clear that all elements regarding the demonstration of the illegality of the contested act may be relied on by the applicant before the EU Courts, whether those elements pre-date or post-date the contested decision, whether they were submitted previously in the context of the administrative procedure or, for the first time, in the context of the proceedings before the General Court, insofar as those elements are relevant to the review of the legality of the Commission decision.769

It should be recalled, however, that the review carried out by the Courts is based on facts and law as they stood at the time of the adoption of the act (cf para 3.304), and that the arguments put forward by the applicant during the administrative stage are relevant when assessing the adequacy and sufficiency of the reasoning of the contested act, since the institution or body cannot be expected to respond specifically to arguments which the applicant only raises later, during the Court procedure (cf para 3.260).770 The legality of the act is unaffected by statements made by the defendant before the Courts. The role of the defendant’s pleadings in the Court procedure is to neutralise the arguments of the applicant and to bring, where appropriate, counter-evidence to refute his factual statements. Conversely, the Courts review the legality of the contested act by taking into account the reasoning contained in that act and not in the light of what has been asserted with regard to it by the defendant in the Court proceedings. The insufficient reasoning of the act cannot be remedied by new explanations provided by the defendant in the Court procedure (cf para 3.305). On the other hand, even if the defendant makes erroneous or unsubstantiated statements in its defence or rejoinder, the legality of the act is not reviewed in light of them, but by the proper interpretation of the contested act based on its wording, structure and general scheme.771

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(iii) Full Review and Marginal Review Extent of the review. As a general rule, the EU Courts undertake a comprehensive review of the legality of the contested act. This means that pleas in law based on any of the four grounds for annulment listed in Article 263(2) TFEU (cf para 3.240) will be thoroughly examined. As regards pleas related to errors of facts and assessment allegedly contained in the contested act (para 3.299), the Union judicature must not only establish whether the evidence relied on in the contested act is factually accurate, reliable and consistent, but must also ascertain whether that evidence contains all the relevant information to be taken into account in order to assess the situation, and whether it is capable of substantiating the conclusions drawn from it in the contested act.772

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The Courts cannot substitute their reasoning for that of the author of the act. However, when carrying out such a review, the EU Courts cannot, in the context of the review of legality referred to in Article 263 TFEU, substitute their own reasoning for that of the author of the contested act.773 Therefore, for instance, in a competition law case where the Commission defined the

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769 Case C-603/13 P Galp Energía España and Others v Commission (Spanish bitumen cartel) [EU:C:2016:38] para 72. 770 Joined Cases C-465/02 and C-466/02 Germany and Denmark v Commission (registration of ‘feta’ as a designation of origin) [EU:C:2005:636] para 106; Case C-413/06 P Bertelsmann and Sony v Impala [EU:C:2008:392] para 167. 771 Case T-209/01 Honeywell International v Commission [EU:T:2005:455] para 94. 772 Case T-79/12 Cisco Systems and Messagenet v Commission [EU:T:2013:635] para 50 and the case law cited. 773 Case C-12/03 P Commission v Tetra Laval [EU:C:2005:87] para 39; Case C-525/04 P Spain v Lenzing [EU:C:2007:698] paras 56–57; Case T-85/09 Kadi v Commission [EU:T:2010:418] para 142; Case T-427/08 CEAHR v Commission [EU:T:2010:517] paras 65 et seq; Case T-574/14 EAEPC v Commission [EU:T:2018:605] para 78; Case C-123/16 P Orange Polska v Commission [EU:C:2018:590] para 105. See also Case C-246/11 P Portugal v Commission (ERDF) [EU:C:2013:118]

232 Action for Annulment r elevant market, the Courts are not entitled to provide a different, broader or narrower definition, but can merely state that the Commission’s appraisal was flawed and annul the contested act.774 This rule also implies that the Courts may not mend the appraisal in the contested act by adding new grounds based on new evidence adduced by the defendant during the Court proceedings.775 It is for the institution or body, whose act was annulled, to draw the consequences from the annulment judgment and to adopt a legally sound replacement act in a repeated procedure, or to abandon the intent of readopting the act, depending on the circumstances of the case (cf para 3.331). 3.311

Marginal review. In many areas, the Commission, the Council, or other EU bodies enjoy a certain discretion when adopting implementing measures, the exercise of which involves complex economic, social or technical assessments which must be made in a Union context. In these fields, such as State aid,776 mergers,777 anti-dumping778 or classification of chemical substances,779 the General Court carries out a ‘limited’ or ‘marginal review’. By limiting the extent of the review, the Courts recognise that choices in EU policy areas which involve the balancing of economic, social or health-related considerations mainly belong to institutions or bodies other than the Courts.780 In these cases, judicial review is ‘limited to checking compliance with the rules governing procedure and the statement of reasons, the substantive accuracy of the facts as well as the absence of manifest errors of assessment or misuse of powers’.781 This often used formula is not entirely precise, though. It only mentions the second to the fourth grounds for annulment foreseen in Article 263(2) TFEU, although the first ground for annulment, ‘lack of competence’ (cf para 3.244), can certainly be argued as well. The sole difference between full review and marginal review concerns the third ground for annulment (breach of superior EU norms), and resides in the approach of the Courts towards pleas in law related to the appraisal carried out by the institution or body (cf para 3.299), ie the criterion of the ‘manifest’ error of assessment (para 3.312).

paras 88–91, in which the judgment of the General Court was quashed on the ground that it substituted its reasoning for that of the Commission. 774 See, eg Case T-427/08 CEAHR v Commission [EU:T:2010:517] paras 91–109. 775 Case T-462/07 Galp Energía España and Others v Commission (Spanish bitumen cartel) [EU:T:2013:459] paras 294–295 and the case law cited, not set aside on this point in Case C-603/13 P Galp Energía España and Others v Commission (Spanish bitumen cartel) [EU:C:2016:38]. 776 Case C-56/93 Belgium v Commission (Dutch gas State aid) [EU:C:1996:64] para 11; Case T-349/03 Corsica Ferries v Commission [EU:T:2005:221] para 137; Case T-671/14 Bayerische Motoren Werke v Commission [EU:T:2017:599] para 42, confirmed on appeal in Case C-654/17 Bayerische Motoren Werke v Commission and Freistaat Sachsen [EU:C:2019:634]; see in particular para 80. 777 Case T-5/02 Tetra Laval v Commission [EU:T:2002:264] para 119; Case T-151/05 NVV and Others v Commission [EU:T:2009:144] para 53; Case T-79/12 Cisco Systems and Messagenet v Commission [EU:T:2013:635] paras 49–50. 778 Case T-162/94 NMB France and Others v Commission [EU:T:1996:71] para 72; Case T-97/95 Sinochem v Conseil [EU:T:1998:9] para 51; Case T-118/96 Thai Bicycle Industry v Conseil [EU:T:1998:184] para 32; Case T-444/11 Gold East Paper and Gold Huasheng Paper v Council [EU:T:2014:773] paras 71–72. 779 Case T-95/10 Cindu Chemicals and Others v ECHA [EU:T:2013:108] paras 105–106. 780 D P Domenicucci and I Taccani, ‘Articolo 263 TFUE’ (in: Codice dell’Unione Europea operativo ed. by C C Gialdino, Simone, Napoli, 2012) 1896–1897. 781 Case T-349/03 Corsica Ferries v Commission [EU:T:2005:221] para 138 (State aid); Joined Cases C-142/84 and C-156/84 BAT and Reynolds v Commission [EU:C:1987:490] para 62; Case C-195/99 P Krupp Hoesch Stahl v Commission (steel beam cartel) [EU:C:2003:528] para 55; Case T-444/11 Gold East Paper and Gold Huasheng Paper v Council [EU:T:2014:773] para 73; Case T-79/12 Cisco Systems and Messagenet v Commission [EU:T:2013:635] para 50; Case T-671/14 Bayerische Motoren Werke v Commission [EU:T:2017:599] para 42, confirmed on appeal in Case C-654/17 Bayerische Motoren Werke v Commission and Freistaat Sachsen [EU:C:2019:634].

Grounds for Review 233 ‘Manifest’ error of assessment. In the areas where full review is carried out, an error of a ssessment is a sufficient ground for annulment, while in the fields where marginal review applies, a ‘manifest’ error of assessment must be shown by the applicant. According to some c ommentators, the difference between an ‘error of assessment’ and a ‘manifest error of assessment’ cannot be objectively described, and it might have even disappeared.782 Clearly, the General Court would be very reluctant to establish an error and qualify it as non-manifest. Therefore, there is little, if any, case law on the difference between a simple and a manifest error. From the practical point of view, if the applicant draws his arguments from, for example, complex analyses, economic models or expertise, which he offers as an alternative to the analyses and models relied on by the institution or body in the contested act but these arguments of the applicant are simply not convincing, the General Court may retrench behind the case law on the limited nature of review and dismiss these arguments without entering into the details. Conversely, if the arguments of the applicant are well substantiated, the General Court may examine them thoroughly in spite of the limited nature of the review. It should also be borne in mind that even where the Courts review decisions based on complex economic assessments, for instance in the field of merger control, the Courts

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must not only ascertain whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it.783

Examples for manifest errors of assessment: Aluminium Silicon Mills and CEAHR. To obtain annulment, the evidence adduced by the applicant must be sufficient to make the factual assessments used in the contested act implausible.784 Manifest error of assessment can also be demonstrated by showing that the institution or body neglected a relevant factor785 or made a logical error in its appraisal. For instance, in Aluminium Silicon Mills, the Council held in its anti-dumping regulation that, in 2001, the sales volume of the Union industry decreased because of dumped imports of silicon from Russia. However, the applicant pointed out that the whole EU silicon market contracted in that year. The General Court found that the rate of decrease in the EU industry’s sales volume exactly reflected that of the contraction of the market, thus the level of the EU industry’s sales had followed precisely the general development of EU consumption, meaning that the EU producers had kept their market share. Therefore, the Council committed a manifest error of assessment in its appraisal of the causal link between injury of the EU industry and dumped imports by not taking into account the contraction of the market, which could well cause the decrease of sales irrespective of the silicon import from Russia.786 Another example is CEAHR, where the General Court had to examine, in the context of an abuse of dominant position purportedly committed by Swiss watchmakers, if the Commission was right in finding that all luxury watch brands and their spare parts formed a single system market (meaning that no watchmaker was in a dominant position as regards supplying spare parts). While the Commission held that the cost of spare parts was insignificant compared to the price of a luxury watch, and that that cost was not taken into account by the consumer when choosing a watch brand, it

782 See also F Mariatte and D Rittleng, Contentieux de l’Union europèenne 1 – Annulation, exception d’illégalité (Kluwer France – Lamy, Paris, 2011) 219. 783 Case C-12/03 P Commission v Tetra Laval [EU:C:2005:87] para 39; Case T-79/12 Cisco Systems and Messagenet v Commission [EU:T:2013:635] para 50. 784 Case T-380/94 AIUFASS and AKT v Commission [EU:T:1996:195] para 59; Case T-444/11 Gold East Paper and Gold Huasheng Paper v Council [EU:T:2014:773] para 62. See also Case T-289/03 BUPA and Others v Commission [EU:T:2008:29] para 221. 785 Case T-79/12 Cisco Systems and Messagenet v Commission [EU:T:2013:635] para 50. 786 Case T-107/04 Aluminium Silicon Mill Products v Council [EU:T:2007:85] para 88.

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234 Action for Annulment still considered that, in the event of a price increase of the spare parts, the consumer would shift to another brand to avoid that price increase. The General Court pointed out that the Commission made a logical error, since the insignificance of the spare parts’ price in the eyes of the consumer precisely entailed that he would not buy another luxury watch if the price of the spare part of his existing luxury watch increased. Besides, it also meant that considerations as regards the spare parts’ price increase play no role during the initial choice of a luxury watch. Against the backdrop of these strong indications that the primary market for luxury watches and the aftermarkets for spare parts were, in reality, separate relevant markets, the General Court concluded that the Commission made a manifest error of assessment.787 (iv) Antitrust: Review of Legality and Full Jurisdiction 3.314

Scope of review in antitrust. While the case law on marginal review (cf para 3.311) was quoted in the past in the field of antitrust,788 newer judgments emphasise the full extent of the review. The difference came with the seminal Chalkor judgment, in which the Court of Justice held that the Courts must carry out the review of legality incumbent upon them on the basis of the evidence adduced by the applicant in support of the pleas in law put forward. In carrying out such a review, the Courts cannot use the Commission’s margin of discretion – either as regards the choice of factors taken into account in the application of the criteria mentioned in the Guidelines or as regards the assessment of those factors – as a basis for dispensing with the conduct of an in-depth review of the law and of the facts.789

In Galp Energía España (cartels) and Orange Polska (abuse of dominant position), the Court of Justice added that the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings under Articles 101 and 102 TFEU, which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the applicant at first instance and taking into account all the elements submitted by the latter.790

The broad extent of the review was also underscored in Telefónica, in which the Court of Justice ruled that whilst, in areas giving rise to complex economic assessments, the Commission has a margin of discretion with regard to economic matters, that does not mean that the EU judicature must refrain from reviewing the Commission’s interpretation of information of an economic nature. The EU judicature must, among other things, not only establish whether the evidence put forward is factually accurate, reliable and consistent, but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it.791

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Full jurisdiction in competition cases – the Courts may substitute their reasoning for that of the Commission. The Commission enjoys a wide discretion when setting fines in competition

787 Case T-427/08 CEAHR v Commission [EU:T:2010:517] paras 91–109. 788 See, eg Case T-201/04 Microsoft v Commission [EU:T:2007:289] para 482 (abuse of dominant position). 789 Case C-386/10 P Chalkor v Commission (copper plumbing tubes cartel) [EU:C:2011:815] para 62. 790 Case C-603/13 P Galp Energía España and Others v Commission (Spanish bitumen cartel) [EU:C:2016:38] para 72; Case C-123/16 P Orange Polska v Commission [EU:C:2018:590] para 105. 791 Case C-295/12 P Telefónica and Telefónica de España v Commission [EU:C:2014:2062] para 54 and the case law cited.

Grounds for Review 235 cases. Therefore, for decades, the Courts limited their review to manifest errors of assessment and to the respect of the guidelines on fine-setting. However, in the Chalkor case, the Court of Justice ruled that the margin of discretion held by the Commission did not dispense the Courts with the full review of the Commission’s appraisal as to fine-setting, since the Courts have full jurisdiction by virtue of Article 31 of Regulation No 1/2003.792 Moreover, as the legal basis of full jurisdiction is Article 261 TFEU, the Courts are even entitled to substitute their own assessment for that of the Commission,793 which they have no right to do when reviewing the legality of the act under Article 263 TFEU (cf para 3.310).794 As the Court held in Orange Polska, when they exercise their unlimited jurisdiction laid down in Article 261 TFEU and Article 31 of Regulation No 1/2003, the EU Courts are empowered, in addition to merely reviewing the legality of the penalty, to substitute their own assessment in relation to the determination of the amount of that penalty for that of the Commission, the author of the act in which that amount was initially fixed. Consequently, the EU Courts may vary the contested act, even without annulling it, in order to cancel, reduce or increase the amount of the fine imposed, that jurisdiction being exercised by taking into account all the factual circumstances.795

In order to determine the amount of the fine imposed, it is for the Courts to assess for themselves the circumstances of the case and the nature of the infringement in question. That exercise involves, in accordance with Article 23(3) of Regulation No 1/2003, taking into consideration, with respect to each undertaking sanctioned, the seriousness and duration of the infringement at issue, in compliance with the principles of, inter alia, adequate reasoning, proportionality, the individualisation of penalties and equal treatment. The Courts are not bound by the indicative rules defined by the Commission in its guidelines, even where the latter may give guidance to the EU Courts when they exercise their unlimited jurisdiction.796 Nonetheless, in Galp Energía España, on appeal, the Court of Justice set the boundaries of the unlimited jurisdiction of the General Court. It held that the scope of that unlimited jurisdiction is strictly limited, unlike the review of legality provided for in Article 263 TFEU, to determining the amount of the fine … the unlimited jurisdiction concerns solely the assessment by that Court of the fine imposed by the Commission, to the exclusion of any alteration of the constituent elements of the infringement lawfully determined by the Commission in the decision under examination by the General Court.797

792 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). 793 Case C-3/06 P Groupe Danone v Commission [EU:C:2007:88] para 61; Case C-386/10 P Chalkor v Commission (copper plumbing tubes cartel) [EU:C:2011:815] para 63; Case C-389/10 P KME Germany and Others v Commission (copper plumbing tubes cartel) [EU:C:2011:816] para 130; Case C-603/13 P Galp Energía España and Others v Commission (Spanish bitumen cartel) [EU:C:2016:38] para 75. 794 Case C-123/16 P Orange Polska v Commission [EU:C:2018:590] paras 105–106. 795 Case C-123/16 P Orange Polska v Commission [EU:C:2018:590] para 106 and the case law cited. 796 Case C-603/13 P Galp Energía España and Others v Commission (Spanish bitumen cartel) [EU:C:2016:38] paras 89–90 and the case law cited. 797 Case C-603/13 P Galp Energía España and Others v Commission (Spanish bitumen cartel) [EU:C:2016:38] paras 75–78. In the first instance judgment, the General Court ruled that the Commission failed to establish the participation of the applicants in a compensation mechanism and a monitoring system, which were elements of the cartel, and annulled the contested decision in this regard. Nonetheless, in exercising full jurisdiction, it held, first, that the mere fact that the applicants were aware of that compensation mechanism and monitoring system was sufficient to establish that the applicants were liable under Art 101 TFEU, and secondly, that it was necessary to take account of that fact when fixing the amount of the fine. The Court of Justice considered that in so doing, the General Court erred in law (as it substituted its reasoning for that of the Commission as regards a constituent element of the infringement), and set aside the judgment under appeal.

236 Action for Annulment (v) Does the Illegality Justify Annulment? 3.316

The act is annulled only if the established illegality affects its essence. Errors which affect the substantive legality of the contested act – such as error of law,798 error of fact or error of assessment799 – are only sufficient to warrant the annulment of the act if, in the particular circumstances of the case, they could have had a decisive effect on the outcome. The same applies to procedural flaws that the institution or body committed during the administrative procedure. If the defendant succeeds in showing that the flaw could not affect the outcome of the administrative procedure and the content of the contested act, the procedural illegality found by the Courts cannot affect the validity of the act. The Courts may also state upfront, before the examination of the substance of a plea, that, even if that plea were successful, it could not affect the validity of the act: if a plea of the applicant is not capable of justifying the annulment of the contested decision, it may be dismissed as inoperative without the examination of its merits.800

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Where the operative part is underpinned by several autonomous pillars of reasoning. Where some of the grounds given in a decision are, by themselves, sufficient to justify that decision in law, errors which might invalidate other grounds of the decision do not have any effect on its operative part.801 Moreover, where the operative part of a decision is based on several autonomous pillars of reasoning, each of which being in itself sufficient to justify that operative part, that decision should, in principle, be annulled only if each of those pillars is vitiated by an illegality. In such a case, an error or other illegality, which affects only one of the pillars of reasoning, cannot be sufficient to justify the annulment of the contested act, because it could not have had a decisive effect on its operative part802 (since the other, valid pillars continue to support the operative part). If at least one pillar of reasoning that is sufficient to justify the operative part of the contested act is not called into question by the applicant, that pillar of reasoning, and thus the act founded on it, must be held to be lawful and established with regard to him.803 An illustration may be provided by the Honeywell case, in which the General Court examined the legality of the Commission decision that blocked the GE/Honeywell merger. The Commission based the decision on the finding that the merger would create or strengthen dominant position on several relevant markets. The General Court pointed out that such an impact on a single relevant market was in itself a sufficient ground for prohibiting the concentration, thus the demonstration, by the Commission, of the creation or strengthening of dominant position in respect of each of the affected relevant markets constituted a pillar of reasoning that supported autonomously the operative part of the decision. Since the applicant did not contest the findings of the Commission regarding three of the affected markets, the General Court held that those pillars were deemed to be valid, and sufficient to justify the prohibition of the concentration. Therefore, it rejected the application without examining the other pleas.804

798 Case T-75/95 Günzler Aluminium v Commission [EU:T:1996:74] para 55; Case T-106/95 FFSA and Others v Commission [EU:T:1997:23] para 199. 799 Case T-126/99 Graphischer Maschinenbau v Commission [EU:T:2002:116] paras 49 et seq. 800 Case T-121/95 EFMA v Council [EU:T:1997:198] paras 115–122. 801 See, by analogy, Joined Cases C-302/99 P and C-308/99 P Commission and France v TF1 [EU:C:2001:408] paras 26–29. 802 Case T-310/01 Schneider Electric v Commission [EU:T:2002:254] paras 404–420; Case T-162/06 Kronoply v Commission [EU:T:2009:2] para 62. 803 Case T-209/01 Honeywell International v Commission [EU:T:2005:455] paras 48–50. 804 Case T-209/01 Honeywell International v Commission [EU:T:2005:455] paras 79, 91–92, 107 et seq.

Consequences of Annulment 237

3.1.7.7. Severability and Partial Annulment Lack of severability precludes partial annulment. Actions for annulment are often brought against certain parts of the contested measure only. However, even if the applicant successfully shows that a ground for annulment is present, partial annulment of a Union act is only possible if the elements, the annulment of which is sought, may be severed from the remainder of the act. The requirement of severability is not met where partial annulment of a measure would have the effect of changing its substance.805 The request to annul a part of a measure which is not severable is inadmissible;806 however, the illegality committed by the institution or body by inserting an unlawful provision into the measure may entitle the applicant to seek damages.807

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The Courts may not wholly annul multifaceted acts if the stated illegality only justifies partial annulment. If a ground for annulment only affects some elements of the contested act, which are severable from the others, the Courts may only annul the act partially, not in its entirety. In Verhuizingen Coppens, the General Court found that the Commission had erred in finding that the applicant had participated in a single and continuous infringement of competition law rules, but nonetheless established that the undertaking was liable for some of the forms of anticompetitive conduct, as demonstrated correctly in the contested decision. The General Court annulled the contested decision in its entirety in respect of the applicant. However, on appeal, the Court of Justice set aside the first instance judgment, considering that the General Court could have only partially annulled the decision on the basis of such findings.808

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3.1.8. Consequences of Annulment Article 264 TFEU. Under Article 264 TFEU, if the action for annulment is well founded, the Courts declare the act concerned to be void. However, if they consider this necessary, the Courts shall state which of the effects of the annulled act shall be considered as definitive.

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Practice. The ultimate consequences of the annulment depend to a large extent on the ground for annulment and the question of whether the adoption of the act was after all justified in spite of the illegalities found. For instance, if the Courts rule that an error of assessment, or an error of law or fact has been committed by the institution or body, vitiating the act’s substance, and it transpires that the act could therefore not serve any valid purpose, the institution or body is likely to abandon the intent of adopting a replacement act with a similar operative part and the applicant will be restored to his original position. Conversely, if the institution or body considers that the measure was justified, it may undertake correcting it in a new procedure resulting in a replacement act. Readoption is quite common where the ground for annulment did not go to the

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805 Case C-29/99 Commission v Council (Convention on Nuclear Safety) [EU:C:2002:734] paras 45–46; Case C-239/01 Germany v Commission (EAGGF) [EU:C:2003:514] paras 33–34; Case C-540/03 Parliament v Council (family reunification) [EU:C:2006:429] paras 27–28 and 108; Case C-441/11 P Commission v Verhuizingen Coppens (Belgian removal services cartel) [EU:C:2012:778] paras 38 et seq. 806 Case T-31/07 Du Pont de Nemours (France) and Others v Commission [EU:T:2013:167] paras 83–88 (request to annul a part of an annex to a directive); Order of 10 December 2013 in Case T-150/11 Gobierno de Aragón and Others v Council [EU:T:2013:676] paras 20 et seq. 807 Case T-31/07 Du Pont de Nemours (France) and Others v Commission [EU:T:2013:167] paras 107 et seq. 808 Case C-441/11 P Commission v Verhuizingen Coppens (Belgian removal services cartel) [EU:C:2012:778] para 37.

238 Action for Annulment substance of the reasons underpinning the act, eg where the institution or body merely chose a wrong legal basis or disregarded procedural rules, or where, on some points, the reasoning was insufficient (see also para 3.325).

3.1.8.1. Temporal Aspects 3.322

Ex tunc eradication from the EU legal order. The primary effect of the annulment is the retroactive elimination of the contested act from the EU legal system, as if it never existed.809 This means that all subsequent EU or national measures based on the annulled act lose their valid legal basis. Only a successful action for annulment has such an effect: the mere finding that an EU act is repealed or has lapsed, or even the finding that it is unlawful in the context of an application for damages, only has a prospective effect, and does not retroactively eliminate the legal basis for those measures.810

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When does the annulment judgment take effect? By virtue of Articles 280 and 299 TFEU, judgments of the Courts are enforceable, and Article 60 of the Statute provides that appeals against the final decisions of the General Court do not have a suspensory effect. As a rule, judgments of the General Court annulling acts except regulations (para 3.324) take effect immediately. The same goes for judgments of the Court of Justice annulling any act, including regulations. However, the Courts may exceptionally maintain the effect of an annulled act (para 3.325).

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Annulment of a regulation by the General Court takes effect when it can no longer be overturned on appeal. Under Article 60 of the Statute, judgments of the General Court quashing a regulation take effect only as from the date of expiry of the period open for appeal to the Court of Justice or, if an appeal is brought, as from the date of dismissal of the appeal. Parties may nonetheless apply, in the procedure before the Court of Justice, for the suspension of the effects of the annulled regulation or the prescription of any other interim measure811 (cf Chapter 5.2. Interim Measures). The mere fact that a regulation concerns the applicant individually does not imply, in itself, that the regulation has to be regarded as a decision and, consequently, that the annulment judgment of the General Court takes effect immediately.812 In particular, Article 60 of the Statute applies to regulations imposing fund-freezing measures on the entities listed in their annexes, since such regulations do have a ‘regulatory character’, despite the direct and individual concern of the entities listed in the annexes.813

3.325

Maintaining the effects of the annulled act until it is replaced. An annulment judgment does not necessarily imply that the adoption of the contested measure was unjustified as to the merits. This is often the case where the annulment is the result, for instance, of insufficient reasoning or breach of procedural rules. Such vices can easily be corrected by the institution or body in an act replacing the annulled act (para 3.321). For instance, in Kadi and Al Barakat, the Court of Justice recognised that the immediate effect of a judgment which annulled, for inter alia the breach of the rights of the defence, a regulation imposing fund-freezing measures on the applicants, would

809 Case T-171/99 Corus UK v Commission [EU:T:2001:249] para 50; Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council [EU:T:2006:384] para 35. 810 Case T-291/04 Enviro Tech Europe and Enviro Tech International v Commission [EU:T:2011:760] paras 88–89. 811 Arts 278–279 TFEU. 812 Case T-494/10 Bank Saderat Iran v Council [EU:T:2013:59] paras 120–123. 813 Order of 11 March 2013 in Case T-552/12 R North Drilling v Council [EU:T:2013:120] paras 33–36.

Consequences of Annulment 239 entail the danger that, by the time the Council adopts a replacement act, the applicants make evasive steps rendering the replacementact ineffective. Therefore, the Court of Justice ruled that the effect of the annulled act was to be maintained for a maximum period of three months in order to allow the Council to remedy the infringements found,814 and to adopt, where appropriate, a legally sound replacement act. The Courts may maintain definitively some effects of the annulled act. In some exceptional situations, legal certainty or the principle of pacta sunt servanda may prevail over the interest in removing all effects of the act declared void. In the Parliament v Council (government procurement) case, the Parliament obtained the annulment of the Council decision concerning the conclusion of an agreement with the United States on government procurement, on the ground that it was adopted on a wrong Treaty legal basis. The agreement had expired by the time the judgment was handed down. However, since the ex tunc elimination of the effects of the decision would have retroactively removed the legal basis of the international agreement, which would have in turn created legal uncertainty as to rights and obligations arising from the contracts between third parties concluded under that international agreement, the Court of Justice decided to maintain all effects of the annulled decision.815

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3.1.8.2. Erga Omnes Effect, but the Act is Often Annulled Only in Respect of the Successful Applicant Erga omnes effect. The annulment leads to the retroactive disappearance of the contested act, which can be relied on by anyone as res judicata. Therefore, it has an erga omnes effect.816

3.327

Bundles of individual decisions and acts of general application. If the act applies to several persons, the erga omnes effect of the annulment, somewhat confusingly, does not mean that the contested act is annulled in respect of all the persons to whom it applies. The operative part of the judgment is decisive: if the Courts annul the act only insofar as the applicant is concerned, the act remains valid in respect of other persons to whom it is addressed or who fall under its scope. The operative part depends, in turn, on the wording of the head of claim and its possible restriction by the Courts with regard to the standing and the interest to act of the applicant. Privileged applicants have unlimited standing; therefore, they are entitled to seek annulment in respect of all the entities concerned by the act. By contrast, individual applicants have to show standing and interest to act; thus, they may seek the annulment of bundles of individual decisions or acts of general application only insofar as they are concerned. Individual applicants usually request annulment only in their own respect anyway (in order not to benefit their competitors), otherwise the Courts may also limit the relevant head of claim ex officio to a request of annulment which only concerns the applicant.817 In such a case, since the Courts may not rule ultra petita, the resulting judgment

3.328

814 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [EU:C:2008:461] paras 348 and 373–377. 815 Case C-360/93 Parliament v Council (EEC–US Agreement on government procurement) [EU:C:1996:84] paras 32–36. See also Case C-22/96 Parliament v Council (telematic networks) [EU:C:1998:258] paras 39–42. 816 Joined Cases C-442/03 P and C-471/03 P P&O European Ferries and Diputación Foral de Vizcaya v Commission [EU:C:2006:356] para 43. 817 See Case T-172/09 Gem-Year and Jinn-Well v Council [EU:T:2012:532] paras 24–26, where the General Court limited the scope of the head of claim regarding annulment to ‘a partial annulment of the contested regulation, insofar as it imposes a definitive anti-dumping duty on the applicants’, as it also did in Case T-143/06 MTZ Polyfilms v Council [EU:T:2009:441] paras 27–28.

240 Action for Annulment only declares the act void insofar as the applicant is concerned, while the act remains valid and applicable in respect of others.818 3.329

Examples: AssiDomän and Nachi. In AssiDomän Kraft Products, AssiDomän brought an action for annulment against a letter in which the Commission confirmed that the decision in the wood pulp cartel (a bundle of individual decisions) was still applicable to AssiDomän.819 AssiDomän argued that the Commission decision was illegal, since it had been annulled, in respect of other addressees that had brought an action for annulment in good time, in the Wood pulp judgment.820 On this basis, AssiDomän requested the reconsideration of its situation by the Commission, which was refused by the Commission in the contested letter. The Court of Justice pointed out that the annulment of the Commission decision by the Wood pulp judgment only concerned the successful applicants in the Wood pulp case. Therefore, the Commission had no obligation to give effect to the Wood pulp judgment in respect of AssiDomän. Since AssiDomän did not challenge the decision in good time, the decision had become definitive in its respect, and the Commission did not have the duty to re-examine the situation of AssiDomän in light of the illegalities found by the Court in the Wood pulp judgment. As a consequence, the decision remained valid and applicable in respect of AssiDomän,821 which thus had to pay the fine imposed therein. The same logic applies to acts of general application which may concern the applicant individually, such as anti-dumping regulations822 and regulations imposing fund-freezing measures:823 the annulled regulation remains valid and applicable as regards other entities falling within its scope, which did not bring an action for annulment in due time, failed to show illegality, or made a settlement with the defendant during the Court proceedings.824 For instance, in the Nachi case, the Court of Justice ruled that Nachi, which did not bring an action for annulment against an anti-dumping regulation applicable to it, even though it had standing, could not argue before a national court that the regulation was annulled by the NTN and Koyo Seiko judgment,825 since the annulment only concerned NTN and Koyo Seiko, which successfully contested it before the General Court.826 National customs authorities could therefore continue levying anti-dumping duties from Nachi on the basis of that regulation.

3.1.8.3. Duties of the Institution or Body 3.330

Eradication of all possible past and future impact of the annulled act is the duty of the institution or body. Under Article 266 TFEU, the institution whose act has been declared void is required to take the necessary measures to comply with the judgment of the Courts. 818 Case C-310/97 P Commission v AssiDomän Kraft Products and Others [EU:C:1999:407] paras 49–63. 819 Case T-227/95 AssiDomän Kraft Products and Others v Commission [EU:T:1997:108]. 820 Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission (Wood pulp) [EU:C:1993:120]. 821 Case C-310/97 P Commission v AssiDomän Kraft Products and Others [EU:C:1999:407] paras 40, 49–63. 822 Case T-107/04 Aluminium Silicon Mill Products v Council [EU:T:2007:85]. 823 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [EU:C:2008:461]. 824 See the discontinued proceedings in Case T-111/04 Bratsk Aluminium Plant v Council concerning the same antidumping regulation that was annulled, in respect of Aluminium Silicon Mills, in Case T-107/04 Aluminium Silicon Mill Products v Council [EU:T:2007:85]. 825 Case C-239/99 Nachi Europe [EU:C:2001:101] para 27. 826 Joined Cases T-163/94 and T-165/94 NTN and Koyo Seiko v Council [EU:T:1995:83] paras 20, 23 and the operative part. It should be noted that applicants challenging anti-dumping regulations seem to always request annulment only insofar as they are concerned. See ex multis Case T-255/01 Changzhou Hailong and Zhejiang Yankon v Council [EU:T:2003:282] para 17.

Consequences of Annulment 241 Those measures do not relate to the elimination of the act from the Union legal order because the very annulment by the Courts has that effect. The measures are concerned in particular with eradicating the consequences of the annulled act that are affected by the illegalities found.827 The Courts do not have the power to define the measures through which the defendant institution or body has to execute the judgment or to give directions in this respect.828 When giving effect to the annulment judgment, the institution or body is required not only to observe its operative part but also to take full account of the grounds which led to that judgment and constitute its essential basis.829 The institution or body must abstain from the adoption of an identical act, but readoption is possible after correcting the illegalities. Compliance with the judgment of annulment means, clearly, that the institution or body has to abstain from adopting an identical act. If it transpires from the grounds of annulment that the annulled act could not serve any valid purpose, the institution or body is expected to abandon the intent of readopting it. On the other hand, if the act could be justified as to its merits, and the institution or body decides to replace the annulled act with an act containing an identical or similar operative part, it has to eliminate the illegality found by the Courts.830 In so doing, the institution or body may collect more evidence or change the appraisal (in the case of an error of appraisal, error of fact or error of law), expand the reasoning (thereby correcting insufficient reasoning) or repeat some stages of the procedure and mend the breach of procedural rules or rights stated by the Courts.831 The procedure for replacing an annulled measure may be resumed at the very point at which the illegality occurred,832 as the annulment does not affect the validity of preparatory acts adopted prior to the occurrence of the illegality.833 In quasi-criminal fields, such as competition law, the adoption of a replacement act is not a breach of the principle of non bis in idem.834 Finally, it should be noted that readoption of the act after the correction of the vices established in the annulment judgment is not contrary to the principle of res judicata.835

3.331

Elimination of measures based on the annulled act. The declaration of the illegality of an act leads to the illegality of further measures based on or giving effect to the annulled act. Compliance with the annulment judgment requires the withdrawal of later measures based on that act.836 The institution or body cannot validly argue that at the time of the adoption of those measures, the underlying act was still valid. For instance, in the Tetra Laval cases, the General Court quashed the Commission decision prohibiting the acquisition of Sidel by Tetra Laval,837 which automatically led to the annulment of the divestiture decision giving effect to the prohibition decision.838

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827 Case C-53/85 Akzo Chemie v Commission [EU:C:1986:256] para 21; Case T-102/96 Gencor v Commission [EU:T:1999:65] para 41. 828 Order of 14 January 2004 in Case T-202/02 Makedoniko Metro and Michaniki v Commission [EU:T:2004:5] para 503. 829 Case T-154/98 Asia Motor France and Others v Commission [EU:T:2000:243] para 101. 830 Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P, C-251/99 P, C-252/99 P, C-254/99 P Limburgse Vinyl Maatschappĳ NV (LVM) and Others v Commission (PVC cartel) [EU:C:2002:582] para 48. 831 See Case T-154/98 Asia Motor France and Others v Commission [EU:T:2000:243] paras 15–27; Case C-248/17 P Bank Tejarat v Council [EU:C:2018:967] para 74. 832 Case C-415/96 Spain v Commission (State aid for textiles) [EU:C:1998:533] para 31. 833 Case C-331/88 Fedesa and Others [EU:C:1990:391] para 34; Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P, C-251/99 P, C-252/99 P, C-254/99 P Limburgse Vinyl Maatschappĳ NV (LVM) and Others v Commission (PVC cartel) [EU:C:2002:582] para 73. 834 Case T-24/07 ThyssenKrupp Stainless v Commission (stainless steel cartel) [EU:T:2009:236] paras 187 et seq. 835 Case C-248/17 P Bank Tejarat v Council [EU:C:2018:967] paras 69–76. 836 Joined Cases C-97/86, C-99/86, C-193/86 and C-215/86 Asteris and Others v Commission [EU:C:1988:199] para 30. 837 Case T-5/02 Tetra Laval v Commission [EU:T:2002:264]. 838 Case T-80/02 Tetra Laval v Commission [EU:T:2002:265] paras 39–42.

242 Action for Annulment 3.333

Restoring the applicant to his original position. Measures to be adopted by the institution or body whose act has been annulled also include the restoration of the applicant to his original position.839 For instance, if the annulled act imposed a fine on the applicant for breaching EU competition rules, the Commission has to reimburse the fine with interest.840 Likewise, the consequence of the annulment of an anti-dumping regulation is not only ceasing the levy of antidumping duties, but also the reimbursement of the duties collected in the past.841 The applicant must also be restored to his original position where the act has already been carried out irreversibly. For instance, where the decision of an institution or body to give access to documents to a third party has been found unlawful by the Courts, the legal consequence of annulment is that the third party is not allowed to use those documents.842

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Damages. Restoring the applicant to his original position may mean, in particular, that the EU compensates the damages incurred by the applicant by reason of the illegal act. There are several avenues through which the applicant may obtain damages. First, the applicant may file a combined action for annulment (Article 263 TFEU) and for damages (Article 268 TFEU). That was the case in Sofrimport, in which the Court of Justice partially annulled a Commission regulation and ordered the Commission to pay damages to the applicant in the same interlocutory judgment, fixing the interest at 8 per cent, to be calculated from the day of the delivery of the judgment. It also ordered the parties to settle, within 12 months, the amount of compensation payable, failing which the fixation of the amount was to be submitted to the Court.843 After the extension of the deadline, the parties succeeded in agreeing on the amount payable and the Court closed the proceedings by an order stating that there was no need to adjudicate on the amount of damages.844 Secondly, the successful applicant may also file an action for damages after the delivery of the annulment judgment. For instance, in Schneider I, the General Court annulled the Commission decision blocking the concentration between Schneider and Legrand.845 As a consequence, in Schneider II, it also annulled the divestiture decision giving effect to the annulled blocking decision.846 In the subsequent damages case (Schneider III), the General Court ordered the Commission to make good two types of damages suffered by the applicant. The Commission had to compensate the costs incurred by Schneider in participating in the resumed investigation of the transaction after the annulment of the blocking decision. In addition, the Commission had to make good the reduction in the transfer price, which Schneider had to grant to the purchaser of the assets in Legrand in order to divest those assets in a short time frame, as required by the annulled decisions.847

839 Case C-92/78 Simmenthal v Commission [EU:C:1979:53] para 32; Case T-102/96 Gencor v Commission [EU:T:1999:65] para 41; Joined Cases T-213/01 and T-214/01 Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v Commission [EU:T:2006:151] para 54. 840 T-135/02 Greencore Group v Commission [EU:T:2005:457] paras 57 et seq; Order of 4 May 2005 in Case T-86/03 Holcim v Commission [EU:T:2005:157] para 30. 841 See Order of 31 January 2008 in Case T-151/06 Aluminium Silicon Mill Products v Commission [EU:T:2008:26] para 26. 842 Joined Cases T-213/01 and T-214/01 Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v Commission [EU:T:2006:151] para 55. 843 Case C-152/88 Sofrimport v Commission [EU:C:1990:259]. 844 Order of 17 January 1992 in Case C-152/88 Sofrimport v Commission [EU:C:1992:21]. 845 Case T-310/01 Schneider Electric v Commission (Schneider I) [EU:T:2002:254]. 846 Case T-77/02 Schneider Electric v Commission (Schneider II) [EU:T:2002:255]. 847 Case T-351/03 Schneider Electric v Commission (Schneider III) [EU:T:2007:212] paras 288 and 322.

Consequences of Annulment 243 The institution or body must eliminate the consequences of the annulled act within a reasonable period. Under settled case law, the adoption of a number of administrative measures in order to give effect to the annulment judgment is not normally possible immediately. The institution or body is allowed a reasonable period within which to comply with a judgment annulling one of its acts. The question whether or not the period was reasonable depends on the nature of the measures to be taken and the attendant circumstances.848 In Alitalia, the General Court held that a period of seven months between the annulment of a Commission decision in the field of State aid and the adoption of the replacement act was not excessive, given that the Commission had to repeat the private investor test, which required an in-depth financial analysis.849 In Oliveira, the General Court considered that a period of 38 months between the annulment of a Commission decision reducing assistance from the European Social Fund and the adoption of the decision replacing it was not unreasonable. In fact, since there were doubts as to whether the information used in the first decision was correct and sufficiently complete, it was necessary to reconstitute the file, a task which involved organising an inspection visit to the Member State, analysing the information obtained and consulting the national authorities on a number of occasions.850

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Remedies where the institution or body does not eliminate the effects of the illegality. It may happen that the institution or body does not revoke measures giving effect to the annulled act on its own initiative, or otherwise fails to restore the applicant to his original position within a reasonable period. Since an annulment judgment can constitute a new fact causing time to start running again,851 the legal deadline to file an action for annulment against measures implementing the annulled act may reopen. Also, if the institution or body does not eliminate the consequences of the act declared void, the applicant may file, after the annulment judgment, an action for failure to act852 or an action for damages,853 and thereby force the institution or body to comply with that judgment. The mere fact that the applicant did not lodge an action for failure to act within the deadline foreseen in Article 265 TFEU does not preclude filing an action for damages.854

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No duty to re-examine the situation of persons other than the successful applicant. In the case of individual decisions, while the institution or body whose act is annulled is required to eradicate the consequences of the illegality found, such a duty only exists insofar as the successful applicant is concerned. The institution or body is not required, at the request of interested parties,

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848 Case T-73/95 Oliveira v Commission [EU:T:1997:39] para 41; Case T-301/01 Alitalia v Commission [EU:T:2008:262] para 155. 849 Case T-301/01 Alitalia v Commission [EU:T:2008:262] para 156. 850 Case T-73/95 Oliveira v Commission [EU:T:1997:39] paras 41–47. 851 Case C-310/97 P Commission v AssiDomän Kraft Products and Others [EU:C:1999:407] para 62. 852 Joined Cases C-97/86, C-99/86, C-193/86 and C-215/86 Asteris and Others v Commission [EU:C:1988:199] paras 22–24 and 32; Case C-123/03 P Commission v Greencore [EU:C:2004:783] para 46; Joined Cases T-297/01 and T-298/01 SIC v Commission [EU:T:2004:48] para 31; Order of 4 May 2005 in Case T-86/03 Holcim v Commission [EU:T:2005:157] para 33; Order of 7 January 2013 in Case T-274/12 Alfastar Benelux v Council [EU:T:2013:1]. 853 Case T-84/91 Meskens v Parliament [EU:T:1992:103] para 81, confirmed by Case C-412/92 P Parliament v Meskens [EU:C:1994:308]; Case T-48/97 Frederiksen v Parliament [EU:T:1999:175] para 96; Case T-11/00 Hautem v EIB [EU:T:2000:295] paras 43 and 51; Order of 4 May 2005 in Case T-86/03 Holcim v Commission [EU:T:2005:157] paras 33 et seq. 854 Order of 4 May 2005 in Case T-86/03 Holcim v Commission [EU:T:2005:157] para 52.

244 Action for Annulment to re-examine identical or similar decisions allegedly affected by the same irregularity, addressed to parties other than the successful applicant855 (cf para 3.329).

3.1.8.4. Res Judicata 3.338

General. Under the principle of res judicata, present in the national legal systems of all the Member States, court decisions which can no longer be appealed become a legal fact. This means that a fresh application with the same subject matter, the same parties and the same arguments is inadmissible.856 The authority of res judicata is attached not only to the operative part of the judgment, but also to the ratio decidendi, which is inseparable from it.857 The question of the force of res judicata is a matter of public policy, which must, consequently, be raised by the Courts of their own motion.858

3.339

Content in the case of annulment. Where the Courts give final judgment on the dispute by accepting one or more pleas raised by the applicant and, as a consequence, annul the act, they do not automatically settle all the points of fact and law raised by him.859 The principle of res judicata extends only to matters of fact and law actually or necessarily settled by the judicial decision in question.860 It is therefore possible for the applicant to challenge the readopted act (cf para 3.331) and to again put forward pleas in law not decided upon by the Courts in the first procedure. Similarly, if the Court of Justice sets aside a judgment of the General Court and refers the case back to it, the latter has to rule on such pleas.861

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Absolute effect of res judicata derives from the erga omnes effect of an annulment. The Court of Justice examined the effect of res judicata extending beyond the parties to the litigation in the P&O European Ferries case.862 In its initial decision, the Commission held that an agreement between P&O European Ferries and the Vizcayan and Basque regional authorities, consisting in the purchase of travel vouchers for lines operated by P&O European Ferries, was not State aid. BAI, a competing shipping company, brought a successful action for annulment against this initial decision (the BAI judgment): the General Court ruled that the Commission erred in law when considering that the said agreement did not constitute State aid.863 The Commission restarted the procedure and adopted a replacement decision, considering that the agreement in question was indeed State aid incompatible with the common market, and the advantage had to be recovered. P&O European Ferries, the beneficiary of the measure, brought an action for

855 Case C-310/97 P Commission v AssiDomän Kraft Products and Others [EU:C:1999:407] para 56. 856 See Opinion of AG Geelhoed in Case C-119/05 Lucchini [EU:C:2006:576] para 36; Case T-33/00 Páramo and Others v Commission [EU:T:2003:84] paras 31–34. 857 Case C-248/17 P Bank Tejarat v Council [EU:C:2018:967] para 70 and the case law cited. 858 Joined Cases C-442/03 P and C-471/03 P P&O European Ferries and Diputación Foral de Vizcaya v Commission [EU:C:2006:356] paras 44–45. 859 Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P, C-251/99 P, C-252/99 P, C-254/99 P Limburgse Vinyl Maatschappĳ NV (LVM) and Others v Commission (PVC cartel) [EU:C:2002:582] para 47. 860 Case C-281/89 Italy v Commission (colouring of cereals) [EU:C:1991:59] para 14; Order of 28 November 1996 in Case C-277/95 P Lenz v Commission [EU:C:1996:456] para 50. For application in practice, see Case C-332/98 France v Commission (CELF) [EU:C:2000:338] paras 19–21; Joined Cases T-305/94 to T-307/94, T-313/94 to T-315/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission (PVC cartel) [EU:T:1999:80] paras 77–84; Case C-248/17 P Bank Tejarat v Council [EU:C:2018:967] paras 71–77. 861 Case T-137/09 RENV Nike International v OHIM – Muñoz Molina (R10) [EU:T:2014:473]. 862 Joined Cases C-442/03 P and C-471/03 P P&O European Ferries and Diputación Foral de Vizcaya v Commission [EU:C:2006:356] 863 Case T-14/96 BAI v Commission [EU:T:1999:12].

Consequences of Annulment 245 annulment against the replacement decision, questioning the finding of the Commission that the measure was State aid. The General Court held that the pleas put forward by P&O European Ferries in this respect were admissible, since the BAI judgment, albeit deciding the same subject matter, concerned different parties and different arguments. On appeal, however, the Court of Justice overturned the first instance judgment. It ruled that the BAI judgment did not have just relative authority, which would merely prevent new actions from being brought with the same subject matter, between the same parties and based on the same grounds; rather, the erga omnes effect of the annulment judgment in BAI implied that that judgment was invested with the force of res judicata with absolute effect and prevented legal questions which it had already settled from being referred for re-examination.864 Content in the case of dismissal of the action for annulment. The rule under which the authority of res judicata extends only to matters of fact and law actually or necessarily settled by the judicial decision also applies in the case where the action for annulment has been rejected. For instance, if some pleas in law directed against certain provisions of the contested act were dismissed as inadmissible, without any ruling as to their merits, the same party may still question the legality of the same provisions in a later case by raising a plea of illegality.865

864 Joined Cases C-442/03 P and C-471/03 P P&O European Ferries and Diputación Foral de Vizcaya v Commission [EU:C:2006:356] paras 42–43. 865 Case C-442/04 Spain v Council (restrictions on fishing effort) [EU:C:2008:276] para 25.

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3.2. Action for Failure to Act [written by Viktor Bottka1]

3.2.1. Overview 3.342

Notion. The action for failure to act2 provides certain persons with the possibility to ask for a declaration from the EU Courts that a Union institution or body3 acted unlawfully by failing to define its position or to take another sort of required action. Since this type of action seeks the review of the lawfulness of inaction (or insufficient action) by Union institutions or bodies, it complements the action for annulment, which enables the review of certain adopted acts. It is important to note that under Article 265 TFEU, no action for failure to act can be brought against the Court of Justice of the European Union and the Court of Auditors, but the inaction of other EU institutions or bodies is challengeable (to denote the defendants, the term ‘institution or body concerned’ will be used in this chapter). The party who brings the proceedings may be a privileged applicant (a Member State or an EU institution) or a non-privileged applicant, that is, a natural or legal person. The institution or body concerned whose inaction is criticised must have a sufficiently well-defined duty to act under Union law in order to be subject to this procedure, and another prerequisite is that it was first called upon to act by the same applicant in a formal notice in a pre-litigation procedure. Compliance with the request to act contained in the formal notice or the definition of the position (which may also consist in the rejection of the request) by the institution or body concerned normally puts an end to the procedure already at the pre-litigation stage. Conversely, if the institution or body concerned takes no relevant action upon the formal notice, the applicant may bring the case before the EU Courts. If the defendant still fails to act adequately by the end of the Court proceedings and if the Court sides with the applicant, the applicant obtains a declaration that the defendant failed to act, whereupon the latter is required to take the necessary measures to comply with the judgment. Actions for failure to act are direct actions (cf para 4.15), thus the procedural rules presented in Chapter 4.2. Procedure in Direct Actions are applicable to them.

3.343

Forum. The power to hear and determine actions for failure to act is split between the Court of Justice and the General Court (cf paras 1.19–1.21). In 2018, 12 actions for failure to act were brought before the General Court, but no action was brought before the Court of Justice.4 The number of actions was substantially lower in previous years.

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Changes introduced by the Lisbon Treaty. While leaving unaltered the purpose and function of the action for failure to act, the Treaty of Lisbon enlarged the list of parties that may be defendants. Previously, under Article 232 TEC, only the European Parliament, the Council and the Commission could be subject to such a procedure. The fact that Article 13(1) TEU extended the list of Union institutions to also include the European Council and the European Central Bank 1 Member of the Legal Service, European Commission. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the European Commission. 2 in French ‘recours en carence’. 3 Throughout this book, the term ‘institution or body’ denotes any institution, body, office or agency of the Union within the meaning of Arts 263(1) and 265(1) TFEU, while the term ‘EU institution’ is reserved for institutions of the Union listed in Art 13(1) TEU. 4 Source: InfoCuria – case-law search.

Overview 247 (ECB) is reflected by the scope of defendants in the first sentence of Article 265 TFEU, which now includes these two institutions. Another novelty is that this action may be brought, under the same conditions as against the said EU institutions, against bodies, offices and agencies of the Union which fail to act, albeit such actions were already possible under pre-existing case law. As regards the applicants, the previous limitation on the ECB that it could bring such an action only in the areas within its field of competence was removed by the Lisbon Treaty. Article 265 TFEU. Article 265 TFEU (ex Article 232 TEC) defines the characteristics of the action as follows:

3.345

Should the European Parliament, the European Council, the Council, the Commission or the European Central Bank [ECB], in infringement of the Treaties, fail to act, the Member States and the other institutions of the Union may bring an action before the Court of Justice of the European Union to have the infringement established. This Article shall apply, under the same conditions, to bodies, offices and agencies of the Union which fail to act. The action shall be admissible only if the institution, body, office or agency concerned has first been called upon to act. If, within two months of being so called upon, the institution, body, office or agency concerned has not defined its position, the action may be brought within a further period of two months. Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the Court that an institution, body, office or agency of the Union has failed to address to that person any act other than a recommendation or an opinion.

Admissibility. In order to be admissible, apart from the general requirements applicable to all actions, an action for failure to act must satisfy the following conditions:

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i) The pre-litigation procedure was followed, and the institution or body concerned was called upon to act in an appropriate manner, by fulfilling the requirements as to the time and content (cf Section 3.2.2. Pre-litigation Phase – Invitation to Act); ii) The Court action was brought within the applicable time limit (cf Section 3.2.3. Time Limit to Bring the Court Action); iii) The institution or body concerned has not defined its position before the end of the pre-litigation stage (cf Subsection 3.2.4.2); iv) The defendant(s) must be one or several EU institutions or bodies whose failure to act may be reviewed (cf Section 3.2.5. Defendants); v) The applicant must be an EU institution, a Member State, or a natural or legal person having the capacity to act, the interest in bringing proceedings and standing (cf Section 3.2.6. Applicants and Standing; see also Section 3.1.4. Applicants and Standing in Chapter 3.1. Action for Annulment); vi) The formal requirements related to actions for failure to act must be respected (cf Section 3.2.7). Substance. The essential substantive questions in actions for annulment are whether the institution or body concerned had a duty to act under EU law provisions and whether it has breached that duty by omitting to act, thereby infringing the Treaties (cf Subsection 3.2.4.1. Duty to Act). If the action is successful, the Courts declare that the defendant failed to act, whereupon the latter is required to take the necessary measures to comply with the judgment or potentially face further proceedings (cf Section 3.2.8. Result of the Proceedings).

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Structure of this chapter. Given the importance of the pre-litigation phase and its bearing on the Court proceedings, it is examined before the other sections, unlike in other chapters of this book. Furthermore, since the substantive issues related to the duty to act and the admissibility issues concerning the definition of a position are, in practice, intertwined, they are grouped together in Section 3.2.4. Failure to Act for the sake of a streamlined presentation.

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248 Action for Failure to Act

3.2.2. Pre-litigation Phase – Invitation to Act 3.349

Purpose of the formal notice as an essential procedural requirement. In order to bring an action for failure to act, a pre-litigation procedure must first be followed. In this regard, Article 265(2) TFEU provides that The action shall be admissible only if the institution, body, office or agency concerned has first been called upon to act. If, within two months of being so called upon, the institution, body, office or agency concerned has not defined its position, the action may be brought within a further period of two months.

The purpose of this obligatory step is to avoid unnecessary litigation (since the applicant’s interest primarily lies in causing the institution or body concerned to act and not in receiving a declaration on failure to act from the relevant Court) and to give a last chance to the institution or body to act before the matter becomes widely known through a formal Court action. The procedural significance is twofold: first, that the deadline for lodging the formal action before the EU Courts is determined by the date of receipt of such a letter by the institution or body concerned; and, secondly, that the maximum scope of the action brought before the Courts is determined by the formal notice. 3.350

Form and content of the formal notice. According to case law, a formal invitation to act must be sufficiently clear and precise to enable the institution or body concerned to ascertain in specific terms the content of the decision which it is being asked to adopt and must make clear that its purpose is to compel the institution or body to state its position under Article 265 TFEU.5 As this case law definition and Article 21 of the Statute6 (cf para 3.386) suggest, such a notice should be in written form, in order to avoid issues of proof later on. Oral invitations to act have been ignored by the Courts.7

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Timing of the formal notice. The formal invitation to act must be sent within a reasonable time starting from the moment when the applicant may validly consider that the EU institution or body concerned has failed to act. Normally, the formal notice would follow other correspondence, such as a complaint addressed to the institution or body, from which the applicant may conclude that there is failure to act. However, previous correspondence before a formal notice is not necessary, as long as the institution or body concerned has an obligation to act for another reason. The reasonable period for sending a formal notice can be determined on a case-by-case basis. It can either be too soon (eg the Commission’s procedural deadline for treating a complaint has not yet expired) or too late.8 In this context, a difficulty arises in differentiating negative

5 Case T-442/07 Ryanair v Commission [EU:T:2011:547] para 22; Case T-17/96 TF1 v Commission [EU:T:1999:119] para 41. 6 Statute, Art 21(2) provides that ‘The application shall be accompanied … in the circumstances referred to in Article 265 [TFEU] by documentary evidence of the date on which an institution was, in accordance with those Articles, requested to act’. 7 The interim measures Order in Case C-25/85 R Nuovo Campsider v Commission [EU:C:1985:101] para 32: ‘Finally, certain reservations must be expressed as to the admissibility of the main application. The request communicated by telex on 16 November 1984 does not, at first sight, appear to be in the form of the formal notice requiring the Commission to act envisaged by Article 35 of the ECSC Treaty and does not expressly refer to specific measures which the Commission was to adopt, even if the applicant is able to prove that the question was raised orally, as it stated at the hearing.’ The related main case judgment only deals with the written telex and does not even mention the proven oral invitation: Case C-25/85 Nuovo Campsider v Commission [EU:C:1986:195] para 8. 8 In Case C-59/70 Netherlands v Commission (aid to the steel industry) [EU:C:1971:77] paras 15–19, an 18-month period before the invitation to act was considered too long and the Court dismissed the ensuing application as inadmissible. The Court derived a reasonable time period from the principle of legal certainty and considered it implicit in the

Pre-litigation Phase – Invitation to Act 249 responses issued by an EU institution or body that still give rise to a formal action for failure to act and those responses that are deemed to be definitive positions, which exclude any valid action for failure to act (cf para 3.374). Difficulties in practice. A frequent difficulty for the EU institutions or bodies concerned is determining which out of the many items of correspondence they receive constitutes such a formal notice that calls upon them to act within the meaning of Article 265 TFEU.9 At times, only the analysis of the content may give indications about the nature of a notice. The task is especially challenging in duplicate procedures where the same applicant, who submits a complaint (or an access to documents request10), may in the course of the correspondence for that matter send a formal notice to act. In such cases, any uncertainty about the nature of a letter will disappear once the Court action is notified, and the institution or body concerned may still take a position and achieve the termination of the matter before a judgment on the substance is delivered.

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Time available for the reaction to a formal notice. The institution or body concerned may be able to comply with or otherwise act upon the formal notice during the two-month period following it.11

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Possible reactions to the formal notice. There are three possibilities following the invitation to act:

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i) The institution or body concerned complies with the request or at least defines its position; ii) It remains inactive, or sends irrelevant12 or holding replies (NB: a definitive position, which is a negative refusal to act, normally counts as sufficient action, cf para 3.374); or iii) If the formal notice relates to an act which the institution or body concerned is not obliged to adopt,13 then normally it would still reply out of courtesy, but that reply or even the lack of any reaction does not entitle the applicant to lodge a valid Court action for failure to act. Full or partial compliance. If the compliance with the formal notice or the definition of the position occurred in due time (ie within two months from the formal notice) and covers the entire

system of the Treaty articles on the action for annulment and action for failure to act that the exercise of the right to raise the matter with the Commission may not be delayed indefinitely, a fortiori once it is clear that the Commission has decided to take no action. However, in other cases, longer periods have been found acceptable: for example, Case C-13/83 Parliament v Council (Common Transport Policy) [EU:C:1985:220] paras 3 and 20–27 refer to an initial parliamentary resolution of 1968 identifying the need to act for the Council, which was followed by a formal notice only in 1982. Conversely, shorter ones are unacceptable: four months was found to be too long in Case C-170/02 P Schlüsselverlag J.S. Moser and Others v Commission [EU:C:2003:501] paras 36–38. The Court’s consideration here was that it was contrary to legal certainty that undertakings could lead the Commission to call into question a decision taken by the competent national authorities with regard to a concentration, even after the exhaustion of the possible legal remedies against such decision in the legal system of the Member State concerned. 9 For example, in the Ryanair case, the Commission did not view the letter it received as a complaint, so it did not consider it had a duty to act upon it, even when formally called upon to act. The Courts found otherwise: Case T-442/07 Ryanair v Commission [EU:T:2011:547] paras 33–39, upheld in Case C-615/11 P Commission v Ryanair [EU:C:2013:310] paras 32–39. 10 See Case T-611/15 Edeka-Handelsgesellschaft Hessenring v Commission [EU:T:2018:63]. 11 In theory, the applicant may agree with the institution or body concerned on an extension, but this is at the applicant’s own risk of missing the subsequent deadline to lodge a Court action on time. A solution in such cases could be to withdraw the first letter of formal notice and send a new one two months before the new deadline agreed with the institution or body. That way the deadline to lodge a Court action runs from the expiry of the two months after the latest formal notice. 12 Case T-521/14 Sweden v Commission (biocidal products) [EU:T:2015:976] para 43 is an example where the reply of the Commission simply recalled that a regulation exists on the subject but it did not respond to the concrete invitation to adopt delegated acts. The ensuing failure to act action was hence admissible (and well founded). 13 Such as initiating an infringement case against a Member State.

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250 Action for Failure to Act scope of the formal notice, then a subsequent action for failure to act is inadmissible. However, if the institution or body concerned fails to act within two months on a part of the initial notice, an action for failure to act may be validly initiated by the same applicant14 as far as the outstanding part of the formal notice is concerned. 3.356

Late compliance – the Court action becomes devoid of purpose. After the expiry of the two-month period from the formal notice, the institution or body concerned may still comply with the request or define its position, even after the initiation of a Court action against its previous inaction. A belated act by the institution or body may render the action for failure to act devoid of purpose and result in its termination15 (cf Section 5.7.2. No Need to Adjudicate). However, this may have the consequence that the institution or body concerned must bear the legal costs of the Court proceedings at least in part,16 and it may also lead to a claim for damages for the period of inaction.

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Summary of the time limits applicable in the pre-litigation phase. The summary of the deadlines applicable in the pre-litigation procedure is the following: i) A formal notice to act must be sent within a reasonable time starting from the moment when the applicant may lawfully consider that the institution or body concerned has failed to act (NB: this coincides not with the date of submitting a complaint on antitrust or State aid matters to the Commission, but with the moment when the Commission should have reacted to it positively or negatively. The formal notice is necessarily a separate letter, which follows the initial complaint). If the formal notice is not sent within a reasonable time, the subsequent action for failure to act will be inadmissible;17 ii) The institution or body concerned may comply or define its position within two months of the formal notice. If it exceeds this deadline, that does not affect the possibility for the applicant to lodge the action before the relevant Court, but that action may become devoid of purpose if the defendant complies with the request or defines its position during the Court procedure.

3.2.3. Time Limit to Bring the Court Action 3.358

The action must be brought within two months plus 10 days from the end of the pre-litigation stage. If the two months following the formal notice have passed without a valid action by the institution or body concerned, the pre-litigation stage ends, and the applicant has a strict legal deadline of a further two months (to which 10 days are added on account of distance)18 to lodge the action for failure to act with the competent EU Court. This is a procedural time limit that

14 Case T-74/92 Ladbroke Racing v Commission [EU:T:1995:10] paras 60–63. 15 In such a case the failure to act comes to an end on the day on which the person who called upon an institution to act received the document by which that institution defined its position (see Joined Cases T-194/97 and T-83/98 Branco v Commission [EU:T:2000:20] para 55). See also Case C-377/87 Parliament v Council (draft budget for 1988) [EU:C:1988:387] para 10. 16 See, eg Case T-17/96 TF1 v Commission [EU:T:1999:119] paras 108–110; Case C-377/87 Parliament v Council (draft budget for 1988) [EU:C:1988:387] para 12. 17 Case C-59/70 Netherlands v Commission (aid to the steel industry) [EU:C:1971:77] paras 15–19; Case C-170/02 P Schlüsselverlag J.S. Moser and Others v Commission [EU:C:2003:501] paras 36–38. 18 CJ RoP, Art 51; GC RoP, Art 60.

Failure to Act 251 cannot be extended and its respect is examined by the Courts ex officio (cf para 4.75).19 If the action is brought out of time, it will be dismissed as inadmissible, save where the applicant can show that force majeure or an excusable error prevented him from lodging it in due time (cf paras 4.95–4.97).

3.2.4. Failure to Act General. The subject matter of the action for failure to act is confined to an inquiry into whether the omission by the EU institution or body concerned to make a given decision or to adopt a given measure is unlawful.20 The particular feature of the Courts’ assessment of failure to act actions is that substantive issues and admissibility issues may be intertwined. First, in this regard, the Courts must decide whether the institution or body has a duty to act under the relevant EU law provisions, which goes to the substance of the case (cf Subsection 3.2.4.1. Duty to Act). Secondly, the Courts assess if the institution or body defined its position in light of the nature and extent of its duty to act. If it did that before the end of the pre-litigation stage, the action will be dismissed as inadmissible, whereas if the definition of a position took place during the Court proceedings, the action will be dismissed on the grounds of no need to adjudicate (cf Subsection 3.2.4.2. Definition of a Position and Chapter 5.7. Inadmissibility and No Need to Adjudicate). This logical order of assessment might be followed when the preliminary report (cf para 4.258) is being prepared. However, in the final judgments, the analysis of the issues related to admissibility or no need to adjudicate is placed first, followed by the substantive analysis (if the action is admissible and has not become devoid of purpose).

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3.2.4.1. Duty to Act Duty to act assessed in light of all the EU law provisions binding the institution or body. In order to rule on the merits of the claim for a declaration of failure to act, it is necessary to ascertain whether, at the time when the institution or body concerned was called upon to act pursuant to Article 265 TFEU, it was under any obligation to act.21 The text of Article 265 TFEU refers to a failure to act ‘in infringement of the Treaties’; however, case law has clarified that the obligation to act on the institution or body concerned may derive from any provision of Union law22 which is binding on it (even if it is self-imposed in the form of soft law guidelines) and contains a duty to act for it.

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Example: Pioneer Hi-Bred International. Illustrations for the presence of a duty to act include Pioneer Hi-Bred International. In this case, the applicant wished to place on the market the genetically modified maize 1507. To that effect, a decision was required to be adopted by the Council, the Commission being responsible for submitting the draft. The applicant claimed that the Commission failed to act by not submitting the draft decision to the Council in spite of the invitation to

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19 Order of 30 June 2011 in Case T-264/09 Tecnoprocess v Commission and Délégation de l’Union au Maroc [EU:T:2011:319] para 94 and the case law cited. 20 K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, Oxford, 2014) 421. 21 Case T-164/10 Pioneer Hi-Bred International v Commission [EU:T:2013:503] para 37; Case T-306/10 Yusef v Commission [EU:T:2014:141] para 76 and the case law cited. 22 Joined Cases C-10/68 and C-18/68 Eridania v Commission [EU:C:1969:66] para 16; Case T-442/07 Ryanair v Commission [EU:T:2011:547] para 38.

252 Action for Failure to Act act. The General Court established that the Commission had a duty to act, which resulted from the combined provisions of Directive 2001/1823 and the 1999 Comitology Decision24 to which the Directive made reference.25 The Court also found that two months after 29 December 2009, being the date on which the Commission had received the invitation to act, the latter had failed to act, since it had not submitted to the Council the proposal for a decision concerning the placing on the market of maize 1507 in accordance with Article 5(4) of the 1999 Comitology Decision.26 3.362

Example: Ryanair. In Ryanair, the applicant sent a complaint to the Commission concerning State aid purportedly granted by the Italian government to Italian airlines which were Ryanair’s competitors. The Commission investigated some aspects of the complaint, while it did not examine others. The General Court examined if the 1999 State Aid Procedural Regulation27 imposed a duty to act on the Commission. The Court held that, even in the absence of a formal complaint, where the Commission was put in possession of ‘information … regarding alleged unlawful aid’ within the meaning of Article 10(1) of the Regulation, the Commission was required to act in accordance with the relevant provisions of the Regulation, by setting the preliminary examination stage in motion and examining that information without delay.

That examination should have led the Commission either to inform the applicant that there were insufficient grounds for taking a view on the case or, in any event, to adopt a formal decision on the substance, ie declare that there is no State aid, that there is State aid but it is compatible with the common market, or that there is State aid and there are serious doubts as regards its compatibility.28 3.363

Example: Sweden v Commission (biocidal products). In Sweden v Commission (biocidal products), the applicant claimed that the Commission had failed to act by not adopting delegated acts to specify scientific criteria for the determination of endocrine-disrupting properties of active substances used for biocides by 13 December 2013 at the latest. The General Court considered that, under Article 5(3) of the Biocides Regulation No 528/2012,29 the Commission was under a clear, precise and unconditional duty to adopt such delegated acts within that deadline. It ruled in favour of the applicant and declared that the Commission had failed to act.30

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Discretion and duty to act. There are different forms of discretion that legislation may bestow upon an EU institution or body. In certain cases, the discretion may completely exclude the recourse to an action for failure to act by any applicant, as it means that there is no duty to act and the institution is not even obliged to define its position. For instance, while it is true that

23 Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms (OJ 2001 L 106, p. 1). 24 Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23). No longer in force. 25 Case T-164/10 Pioneer Hi-Bred International v Commission [EU:T:2013:503] paras 37–47. 26 Case T-164/10 Pioneer Hi-Bred International v Commission [EU:T:2013:503] para 80. 27 Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1). No longer in force, repealed and replaced by Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9). 28 Case T-442/07 Ryanair v Commission [EU:T:2011:547] para 67. 29 Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products (OJ 2012 L 167, p. 1). 30 Case T-521/14 Sweden v Commission (biocidal products) [EU:T:2015:976] paras 8 and 50–54.

Failure to Act 253 Article 258 TFEU empowers the Commission to bring infringement actions against Member States, this does not amount to a duty to act. Where the Commission receives a complaint related to an alleged infringement of EU law by a Member State, the Commission alone decides whether to initiate the infringement proceedings. If it decides not to start such proceedings, the complainant does not have the right to bring an action for failure to act. Such actions will be dismissed as inadmissible.31 The discretion enjoyed by the Council and the Commission as regards measures to be adopted in the context of the EU’s external relations was also considered to preclude the duty to act.32 In other fields, such as in the case of complaints lodged in antitrust, State aid or anti-dumping matters, even where the institution concerned enjoys a wide margin of discretion on whether to commence formal investigations, it has a minimal obligation under the relevant legislation that it must assess, in an unbiased way, whether and how to exercise its discretion, and to define and explain its position to the complainant.33 In cases of abuse of discretion (eg where the conditions for a prescribed action are present, yet no action is taken), the Courts may find that the institution failed to comply with its duty to act.34

3.2.4.2. Definition of a Position Definition of a position normally excludes failure to act. The institution or body which is under a duty to act and has received a formal notice from a party may avoid a Court action by either complying with the request of the party or, normally, also by defining its position, in accordance with Article 265(2) TFEU. Case law has interpreted the term ‘definition of position’ in general as a statement by the institution or body concerned according to which it either denies or confirms the alleged failure to act and gives an indication of its views as to the measures which remain to be taken. However, when faced with a specific complaint, laying down abstract criteria in a decision of general scope does not by itself constitute a definition of position. Only the actual application of such general criteria by the institution or body concerned with the situations complained of by the applicant can clearly demonstrate a willingness to act in respect of the applicant’s request and, therefore, constitute a definition of position.35

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Definition of a position entails inadmissibility or no need to adjudicate. Article 265(2) TFEU provides that an action for failure to act may only be brought ‘if, within two months of being so called upon, the institution, body, office or agency concerned has not defined its position’. Therefore, if the Courts consider that the institution or body concerned defined its position before the end of the pre-litigation phase, that is, within two months counted from the invitation to act, the action for failure to act is dismissed as inadmissible (cf Section 5.7.1. Inadmissibility). Conversely, where the institution or body defines its position after the lodging of the Court action but before the delivery of the judgment, that action will become devoid of purpose and the Courts will rule

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31 See, eg Case C-247/87 Star Fruit v Commission [EU:C:1989:58] para 11: ‘it is clear from the scheme of Article [258 TFEU] that the Commission is not bound to commence the proceedings provided for in that provision but in this regard has a discretion which excludes the right for individuals to require that institution to adopt a specific position’. 32 Case T-292/09 Mugraby v Council and Commission [EU:T:2011:418] paras 34–44. The General Court, in a rather unusual way, assessed the presence of the duty to act in the context of admissibility. 33 See Case C-125/78 GEMA v Commission [EU:C:1979:237] paras 14–23 (antitrust complaint); Case T-442/07 Ryanair v Commission [EU:T:2011:547] para 38 (complaint related to State aid); Case C-191/82 FEDIOL v Commission [EU:C:1983:259] paras 26–32 (complaint related to subsidies granted by a third country). 34 Case C-68/95 T. Port [EU:C:1996:452] paras 38–41. 35 Case T-167/04 Asklepios Kliniken v Commission [EU:T:2007:215] paras 77–78.

254 Action for Failure to Act that there is no need to adjudicate (cf Section 5.7.2. No Need to Adjudicate). That is because in such a situation, a declaration by the Courts to the effect that the initial failure to act is unlawful can no longer bring about the consequences prescribed by Article 266 TFEU.36 The fact that the position adopted by the institution has not satisfied the applicant is of no relevance in this respect because Article 265 refers to failure to act in the sense of failure to take a decision or to define a position, not the adoption of a measure different from that desired or considered necessary by the applicant.37 3.367

Example: Sweden v Commission (biocidal products) – reference to ongoing investigations is not a definition of position. In Sweden v Commission (biocidal products), the General Court examined whether the actions taken by the Commission after the invitation to act could be qualified as a definition of position. Under Article 5(3) of the Biocides Regulation No 528/2012,38 the Commission was under a duty to adopt delegated acts to specify the scientific criteria for the determination of endocrine-disrupting properties of active substances used for biocides by 13 December 2013 at the latest, but it failed to do so (cf para 3.361). The Commission submitted that, in reaction to the invitation to act, it had informed Sweden in due time that it had been in the process of elaborating harmonised scientific criteria as regards the endocrine-disrupting properties at issue and of preparing an impact assessment in this regard. The Commission considered that by this response, it had defined its position within the meaning of Article 265(2) TFEU within two months counted from the invitation to act, and that, therefore, the action brought by Sweden should be dismissed as inadmissible. The General Court rejected this argument. It held that a letter from the institution invited to act, in which it merely had indicated that it had been conducting the analysis of the questions raised by the applicant, could not be regarded as a definition of position that could have put an end to a failure to act. The Court thus held that the action was admissible,39 and it also ruled in Sweden’s favour on the substance.

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Example: Alsharghawi. Another illustration is provided by the Alsharghawi case. The name of the applicant was placed on a list annexed to a Council decision imposing fund-freezing measures on persons and entities in the context of the situation in Libya. The applicant requested the Council to re-examine his situation on 21 October 2014 and remove his name from the list annexed to the decision at issue (this request was regarded as an invitation to act by the General Court). Since the applicant received no reply within two months, it brought an action for failure to act. Subsequently, during the Court proceedings, the Council responded to the request for re-examination by informing the applicant that, after re-examination, it still considered it justified to keep his name on the list at issue. The General Court held that such a statement by the Council was a definition of a position. Therefore, the Court ruled that the action became devoid of purpose and there was no need to adjudicate. The lateness of the definition of a position by the Council had the consequence that it was ordered to bear the costs of the Court proceedings.40

36 Order of 10 December 2014 in Case T-277/14 Mabrouk v Council [EU:T:2014:1106] para 32 and the case law cited. 37 Order 13 December 2000 in Case C-44/00 P Sodima v Commission [EU:C:2000:686] para 83–84. 38 Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products (OJ 2012 L 167, p. 1). 39 Case T-521/14 Sweden v Commission (biocidal products) [EU:T:2015:976] paras 39–42. See also, as regards ongoing investigations, Case T-95/96 Gestevisión Telecinco v Commission [EU:T:1998:206] para 88; Case T-212/99 Intervet International v Commission [EU:T:2002:63] para 61. 40 Order of 9 September 2015 in Case T-66/15 Alsharghawi v Council [EU:T:2015:716] paras 18–25.

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3.2.4.3. Link with Legal Effects Link with legal effects. The action requested or the definition of a position should give rise to an act capable of having legal effects.41 If the ultimate result sought by the applicant is the adoption of an act which is bereft of binding legal effects, the action is dismissed as inadmissible.42 The failure to act may only consist in omissions to adopt measures which are either themselves challengeable through an action for annulment or are a prerequisite for the later adoption of a binding and challengeable act. This is why the action for failure to act is often described as complementing the action for annulment.43

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Evolution of the case law as regards the link with challengeable acts. The case law has evolved on the issue whether the failure to act action may relate only to the omission to adopt acts challengeable through an action for annulment or whether it has a broader scope. The initial position of the Court of Justice was to regard the two actions as fully complementary,44 which meant that failure to act could only be established if the institution omitted to adopt a challengeable act.45 Subsequently, the EU Courts widened the scope of the action for failure to act to include certain situations where an action for annulment was excluded. On the one hand, this widening related to privileged applicants, which were enabled to bring an action for failure to act as regards the omission to issue intermediate acts, such as draft budget or legislative proposals, which are not challengeable but are still relevant to the institutional role of the privileged applicant.46 As regards individual applicants, the scope widened in the context of complaints, where even nonbinding and non-challengeable acts (pre-rejection letters) could be required through an action for failure to act, and later the omission to issue proposals could also be challenged by individual applicants.47 Subsequently, these were also included in the concept of intermediate measures.

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Modern case law: omission to adopt non-challengeable intermediate measures may be a failure to act if the measure can give rise to a binding act. Today, the action for failure to act has a much broader scope than the action for annulment. While an action for annulment may only lie against a definitive act with binding legal effects, the failure to act action is also instrumental

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41 K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford, OUP, 2014) 425, 429, referring to Opinion of AG Mischo in Case C-377/87 Parliament v Council (draft budget for 1988) [EU:C:1988:264] para 30: ‘The decisive criterion is therefore that of the legal effects. Thus, a “failure to act” within the meaning of Article [265 TFEU] may be constituted by the non-adoption by the Council or by the Commission of an act or a measure, of whatever nature, form or description, which is capable of producing legal effects vis-à-vis third parties’. 42 Order of 22 May 2000 in Case T-103/99 Associazione delle Cantine Sociali Venete v European Ombudsman and Parliament [EU:T:2000:135] para 51. 43 Case C-13/83 Parliament v Council (common transport policy) [EU:C:1985:220] para 36: ‘In the system of legal remedies … there is a close relationship between the right of action given in Article [263 TFEU], which allows unlawful measures of the Council and the Commission to be declared void, and that based on Article [265 TFEU], which may lead to a finding that the failure by the Council or Commission to adopt certain measures is contrary to the Treaty.’ 44 Case C-15/70 Chevalley v Commission [EU:C:1970:95] para 6: ‘the concept of a measure capable of giving rise to an action is identical in Article 173 and 175 [now Arts 263 and 265 TFEU], as both provisions merely prescribe one and the same method of recourse’. 45 Order of 22 May 2000 in Case T-103/99 Associazione delle Cantine Sociali Venete v Ombudsman and Parliament [EU:T:2000:135] paras 47–55. 46 Case C-302/87 European Parliament v Council (Comitology) [EU:C:1988:461] para 16: ‘There is no necessary link between the action for annulment and the action for failure to act. This follows from the fact that the action for failure to act enables the European Parliament to induce the adoption of measures which cannot in all cases be the subject of an action for annulment. Thus, as is shown by the judgment [in Case C-377/87 European Parliament v Council (draft budget for 1988)], as long as a draft budget has not been presented by the Council, the European Parliament can obtain a judgment establishing the Council’s failure to act, whereas the draft budget, which is a preparatory measure, could not be challenged under Article 173 [now Art 263 TFEU].’ 47 Case T-164/10 Pioneer Hi-Bred International v Commission [EU:T:2013:503].

256 Action for Failure to Act in causing the institution to move forward with the procedure towards the adoption of a final act by compelling it to take intermediate measures. In this regard, the Courts have held that the failure to adopt an intermediate measure may be the subject matter of an action for failure to act, provided that it is a preparatory act that constitutes the necessary prerequisite for the next step in a procedure which is to culminate in a definitive and legally binding act open to an action for annulment.48 Such preparatory acts may consist, first, in measures that pave the way for the adoption of a final act by the same institution, or, secondly, in proposals or drafts to be submitted to another institution which has the power to adopt the final act. The first situation is illustrated by the Ryanair case. The General Court held that the Commission failed to act when, in spite of the reception of ‘information … regarding alleged unlawful aid’, it did not set the preliminary examination stage of the State aid procedure in motion and did not examine that information. While, clearly, the decision to start those proceedings is not a reviewable act, the preliminary examination by the Commission could have given rise to various binding and challengeable acts, namely a final decision in which the Commission states whether the measure constitutes illegal State aid or not, or a decision rejecting the complaint49 (cf para 3.362). The second situation is illustrated by the Pioneer Hi-Bred International case. The General Court found that the Commission failed to act by not submitting a proposal for decision to the Council.50 That proposal could not have been regarded as a reviewable act. However, it would have given rise to the Council decision, which is a binding and challengeable legal act (cf para 3.361). It also follows from this case law that, in order to terminate the failure to act, the institution or body concerned does not need to adopt a legally binding final act which is challengeable in an action for annulment, but may also define its position by an intermediate measure (cf para 3.372) or otherwise take the next step in the procedure which leads up to the adoption of a legally binding final act. If that procedure is again halted at a later stage by the inaction of the institution or body, nothing prevents the applicant from filing a fresh action for failure to act to cause the institution or body to keep progressing towards a final and challengeable act (which may either be the type of act sought by the applicant or an explicit refusal to act, which may also be challengeable through an action for annulment). 3.372

Definition of a position may take place through intermediate measures. In certain complaint procedures (such as in antitrust,51 State aid52 or protection of human health53), the institution or body concerned has an obligation defined in legislation to assess a complaint and to respond to it. Therefore, if there is no assessment and response from the part of the institution or body, it may have failed to act.54 However, to terminate the failure to act, the institution or body does not necessarily need to adopt a binding and challengeable final act. In certain circumstances, an intermediate measure, which itself is not open to an action for annulment, may constitute a ‘definition of a position’ terminating the failure to act if it is the prerequisite for the next step in a procedure which is to culminate in a legal act that is challengeable by an action for annulment.55

48 Order of 24 November 2009 in Case T-228/08 Szomborg v Commission [EU:T:2009:463] para 19. See also Case C-282/95 P Guérin automobiles v Commission [EU:C:1997:159] paras 33–38. 49 Case T-442/07 Ryanair v Commission [EU:T:2011:547] para 67. 50 Case T-164/10 Pioneer Hi-Bred International v Commission [EU:T:2013:503] para 80. 51 Case T-186/94 Guérin automobiles v Commission [EU:T:1995:114] para 25. 52 Joined Cases T-297/01 and T-298/01 SIC v Commission [EU:T:2004:48] para 53. 53 Case T-105/96 Pharos v Commission [EU:T:1998:35] para 43. 54 Case C-282/95 P Guérin automobiles v Commission [EU:C:1997:159] para 38: ‘If the Commission fails either to initiate a proceeding against the subject of the complaint or to adopt a definitive decision within a reasonable time the complainant may rely on Article [265 TFEU] in order to bring an action for failure to act.’ 55 Case T-186/94 Guérin automobiles v Commission [EU:T:1995:114] para 25 and the case law cited. See also Order of 26 November 2008 in Case T-393/06 Makhteshim-Agan Holding and Others v Commission [EU:T:2008:531] para 52.

Failure to Act 257 Examples include the pre-closure letter regarding competition law complaints under Article 7(1) of Regulation 773/2004,56 which are not themselves challengeable acts in an action for annulment but may constitute a definition of position terminating the failure to act. Indeed, such letters pave the way for the final rejection decision, which is a reviewable act.57 Privileged and non-privileged applicants. Under Article 265(3) TFEU, ‘Any natural or legal person may … complain to the Court that an institution, body, office or agency of the Union has failed to address to that person any act other than a recommendation or an opinion’. This sentence contains elements which are identical to Article 263(1) TFEU, under which the Courts ‘shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank [ECB], other than recommendations and opinions’. The Courts have interpreted the terms ‘other than recommendations and opinions’ in the context of actions for annulment as referring to the requirement of a binding legal act (cf para 3.13 et seq). In Associazione delle Cantine Sociali Venete, the Court of Justice transposed this interpretation to actions for failure to act without any mention that it would only apply to non-privileged applicants. The Court held that if, through an action for failure to act, the applicant may only achieve as an eventual result the adoption of a non-binding act which, by reason of its form or of its nature, cannot be challenged in annulment proceedings (eg because the body called upon to act only has the power to adopt recommendations), the action is inadmissible.58 Also, later case law, on the requirement that the omission to adopt an intermediate measure may only be the subject of a failure to act if that measure is capable of giving rise to a binding act, has not been developed in the context of standing of individual applicants.59 Rather, that case law has been based on the concept of legally binding acts which are challengeable through an action for annulment (cf para 3.15), and Article 263(1) TFEU does not differentiate between privileged and non-privileged applicants in this regard (cf para 3.94). It follows that, despite the formal distinction in Article 265 TFEU between privileged and non-privileged applicants, both categories of applicants may only bring actions for failure to act against omissions to adopt measures which are either themselves challengeable through an action for annulment or are a prerequisite for the later adoption of a binding and challengeable act.

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3.2.4.4. Practice Situations opening the possibility to bring an action for failure to act. Assuming there is a duty to act, the following events after a formal notice that has been addressed to the institution or body concerned may give rise to an action for failure to act: i) Silence (no reaction). If the institution or body reacts orally or does not keep a record of its reply, a Court action may be admissible; however, it will be terminated if the definitive position of the institution or body becomes clearly defined during the Court proceedings.

56 Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ 2004 L 123, p. 18). 57 In this regard, see Case T-186/94 Guérin automobiles v Commission [EU:T:1995:114] para 26, confirmed on appeal in Case C-282/95 P Guérin automobiles v Commission [EU:C:1997:159] paras 33–38. 58 Order of 22 May 2000 in Case T-103/99 Associazione delle Cantine Sociali Venete v European Ombudsman and Parliament [EU:T:2000:135] para 51. 59 Order of 24 November 2009 in Case T-228/08 Szomborg v Commission [EU:T:2009:463] paras 19–21. See also Case C-282/95 P Guérin automobiles v Commission [EU:C:1997:159] paras 33–38.

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258 Action for Failure to Act ii) Sending holding replies, such as the indication that the matter is still being treated or explaining the difficulties hindering an action.60 It is worth mentioning that in the case of complaints in antitrust or State aid matters, the Commission has no formal deadline to act, even if it receives a formal notice from the complainant. However, after longer periods, the continued inaction or sending holding replies after the formal notice may lead to a finding that the Commission breached its duty to either reject the complaint in a reasoned way or to start an investigation.61 iii) Partial compliance or definition of a position. Where, after a formal notice, the institution or body concerned only complied partially with its duty to act or defined its position only partially, the action for failure to act can be filed as regards the untreated part. 3.375

Explicit refusals. In most cases, negative defined positions (ie refusals to act) from the institution or body concerned suffice to avert a failure to act action,62 also because such a letter may be challenged through an action for annulment.63 There are some exceptional cases where the Courts found a failure to act to be possible despite a clearly stated refusal to act.64 These exceptions can be explained by an existing Union law obligation on the institution or body concerned to carry out a specific action. Logically, that obligation does not disappear by a mere refusal to act. This is analogous to the cases on abuse of discretion (cf para 3.364).

3.2.5. Defendants 3.376

General. Under Article 265(1) TFEU, the defendants in an action for failure to act may be institutions, bodies, offices or agencies on which Union law imposes an obligation (these are referred to as ‘institution or body concerned’ throughout this chapter).

3.377

EU institutions. Article 265(1) TFEU provides that the European Parliament, the Council, the Commission, the European Council and the ECB may stand as defendants in actions for failure to act. In principle, no action for failure to act may be brought against the Court of Justice of the European Union and the Court of Auditors, since they are not mentioned in Article 265(1) TFEU. It is noteworthy that the latter are not listed in Article 263(1) TFEU either; nevertheless, actions for annulment lodged against these EU institutions were admissible in public procurement matters (in which they do not exercise their powers laid down in the Treaties, cf para 3.78).

60 Case C-13/83 Parliament v Council (common transport policy) [EU:C:1985:220] para 48; Case T-521/14 Sweden v Commission (biocidal products) [EU:T:2015:976] paras 39–42. 61 Case C-13/83 Parliament v Council (common transport policy) [EU:C:1985:220] para 25; Case T-442/07 Ryanair v Commission [EU:T:2011:547] para 67. 62 Case C-42/71 Nordgetreide v Commission [EU:C:1972:16] para 4. 63 Order of 26 November 2008 in Case T-393/06 Makhteshim-Agan Holding and Others v Commission [EU:T:2008:531] para 51. 64 Case C-302/87 Parliament v Council (capacity of the Parliament to bring an action for annulment) [EU:C:1988:461] para 17: ‘The argument has also been put forward that, in the absence of any power to bring an action for annulment, the European Parliament would be unable, after calling upon the Council or the Commission to act, in accordance with [Art 265 TFEU], to challenge an express refusal to act issued in response to that request. However, that argument is based on a false premise. A refusal to act, however explicit it may be, can be brought before the Court under [Art 265 TFEU] since it does not put an end to the failure to act.’ The same formula was repeated more recently in Case T-308/05 Italy v Commission (advance payments in State aid schemes) [EU:T:2007:382] para 60. Note that para 59 of the latter judgment explains that, based on a regulation, the Commission was under an obligation to make certain payments subject to available funding, and hence it was not entitled to prolong a state of inaction. A refusal to act would be in breach of that obligation.

Applicants and Standing 259 Furthermore, actions for damages could be brought against these two EU institutions where the alleged illegality causing the damage consisted in a failure to act.65 Bodies, offices and agencies. The bodies, offices and agencies referred to in Article 265(1) TFEU are the same as those covered by Article 263(1) TFEU (cf para 3.79 et seq).66 It is important to mention that if the body, office or agency has no power to adopt a legally binding act that may be challenged through an action for annulment (such as the European Ombudsman, who may only issue recommendations)67 or any proposals which are a prerequisite for the later adoption of such an act, the action will be dismissed as inadmissible (cf paras 3.369–3.373).

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Some specificities. An action may also be lodged by several applicants with standing against several defendants. Actions lodged against non-EU entities (European Court of Human Rights, Member States etc) are rejected as manifestly inadmissible as the EU Courts lack the competence to rule on them.68 Similarly, actions against composing parts of an EU institution or body (such as an EU Delegation, which is attached to the Commission) are inadmissible.69 The European Union as such may not be a defendant as it is not an institution or body listed in Article 265 TFEU (in contrast to actions for damages, cf para 3.416).70

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Most actions are brought against the Commission. The most frequent defendant in actions for failure to act is the Commission, followed by the Council and Parliament. The explicit mentioning of EU bodies, offices or agencies as defendants in the Lisbon Treaty did not result in numerous cases against these entities.

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3.2.6. Applicants and Standing 3.2.6.1. Privileged Applicants Privileged applicants – Member States and EU institutions. The privileged applicants have unlimited standing to bring an action for failure to act. They are listed in Article 265(1) TFEU as ‘the Member States and the … institutions of the Union’. It follows from the text of Article 265(1) TFEU71 that bodies, offices and agencies of the Union are not assimilated to EU institutions when they are applicants, unlike in the situation where they take the role of the defendant. The privileged applicants, apart from the Member States,72 are thus the EU institutions which are listed in Article 13(1) TEU: the Parliament, the European Council, the Council, the 65 See Case T-241/09 Nikolaou v Court of Auditors [EU:T:2013:79], where the action for damages was rejected as admis sible but unfounded. This was upheld on appeal in Case C-220/13 P Nikolaou v Court of Auditors [EU:C:2014:2057]. 66 See, eg Case T-102/13 Heli-Flight v EASA [EU:T:2014:1064] para 113. 67 See Order of 22 May 2000 in Case T-103/99 Associazione delle Cantine Sociali Venete v European Ombudsman and Parliament [EU:T:2000:135] para 51: ‘The application must therefore be dismissed as inadmissible because the only measure by which the applicant could have gained satisfaction would have been … the submission to the Parliament of a report finding a case of maladministration in the activities of the Commission, and such a report is not capable of being classified, by reason of its form or of its nature, as a measure capable of being challenged in annulment proceedings.’ 68 Order of 3 July 2012 in Case T-201/12 Masini v European Court of Human Rights [EU:T:2012:340] paras 7–8; Order of 4 April 2011 in Case T-133/11 Fundaţia Pro Fondbis – 1946 Semper v European Court of Human Rights [EU:T:2011:141] paras 10–11. 69 Order 30 June 2011 in Case T-264/09 Tecnoprocess v Commission and Délégation de l’Union au Maroc [EU:T:2011:319] paras 70–71. 70 Order of 6 September 2011 in Case T-292/09 Mugraby v Council and Commission [EU:T:2011:418] para 23. 71 ‘This Article shall apply, under the same conditions, to bodies, offices and agencies of the Union which fail to act’ (cf para 3.345). 72 See, eg Case T-521/14 Sweden v Commission (biocidal products) [EU:T:2015:976].

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260 Action for Failure to Act Commission, the Court of Justice of the European Union, the ECB and the Court of Auditors.73 The circle of privileged applicants is thus broader than in the case of actions for annulment: it also includes the ECB and the Court of Auditors, which are semi-privileged applicants under Article 263(3) TFEU and may only bring actions for annulment in defence of their prerogatives (cf para 3.99). Furthermore, since Article 265(1) TFEU uses the term ‘institutions’, the Court of Justice of the European Union and the Court of Auditors may also be applicants (more specifically, privileged applicants), in contrast to actions for annulment, where they are not mentioned in Article 263(2)–(3) TFEU as possible applicants. While an Opinion of the Advocate General suggested that the Court of Justice of the European Union is not allowed to bring an action for failure to act,74 it should be noted that there are some situations in which the Court of Justice of the European Union should be able to cause other institutions or bodies to act – for instance, where it proposes an amendment to its Rules of Procedure, which must be approved by the Council – and, arguably, it should enjoy the same rights to resort to an action for failure to act as any other EU institution.

3.2.6.2. Non-privileged Applicants 3.382

Individual applicants – natural or legal persons. Article 265(3) TFEU provides that Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the Court that an institution, body, office or agency of the Union has failed to address to that person any act other than a recommendation or an opinion.

While the condition that the failure to act may only consist in the lack of adoption of ‘any act other than a recommendation or opinion’ is subsumed under the more general condition that an action for failure to act may only concern the omission to issue a legally binding final act or an intermediate measure which gives rise to such a legally binding final act (cf para 3.373), the condition that such an act should be ‘addressed’ to the natural or legal person requires closer examination (cf para 3.383). 3.383

Parallelism between the standing to bring actions for annulment and actions for failure to act. While Article 265(3) TFEU provides that an action for failure to act can only be brought by a natural or legal person if the institution or body failed to ‘address’ an act to that person, the Courts have also recognised the standing of individual applicants in situations where the act sought would not be addressed to the applicant, but the latter would nonetheless have the standing to bring an action for annulment against that act. The Courts have thus ruled that if the measure that the institution or body failed to adopt would not be addressed to the applicant but would be of direct and individual concern to him, he has the standing to bring an action for failure to act against the omission.75 The reasons behind this practice were explained by the Court of Justice in the T. Port judgment: It is true that the third paragraph of Article 175 of the Treaty [now Article 265(3) TFEU] entitles legal and natural persons to bring an action for failure to act when an institution has failed to address to them 73 Actions for failure to act brought by an institution are heard and determined by the Court of Justice. See, eg Order of 10 July 2014 in Case C-248/13 Commission v Council (remuneration of EU staff) [EU:C:2014:2075]. 74 Opinion of AG Lenz in Case C-13/83 Parliament v Council (common transport policy) [EU:C:1985:53] p. 1519: ‘the Court may not be one of the institutions entitled to bring an action under Article 175 of the EEC Treaty because it is responsible for legal protection and does not itself seek it’. 75 Order of 22 May 2000 in Case T-103/99 Associazione delle Cantine Sociali Venete v European Ombudsman and Parliament [EU:T:2000:135] para 47.

Applicants and Standing 261 any act other than a recommendation or an opinion. The Court has, however, held that Articles 173 and 175 [now Articles 263 and 265 TFEU] merely prescribe one and the same method of recourse … It follows that, just as the fourth paragraph of Article 173 [now Article 263(4) TFEU] allows individuals to bring an action for annulment against a measure of an institution not addressed to them provided that the measure is of direct and individual concern to them, the third paragraph of Article 175 [now Article 265(3) TFEU] must be interpreted as also entitling them to bring an action for failure to act against an institution which they claim has failed to adopt a measure which would have concerned them in the same way. The possibility for individuals to assert their rights should not depend upon whether the institution concerned has acted or failed to act.76

The notion of direct and individual concern is identical to the one under the action for annulment77 (cf paras 3.140–3.173). Therefore, currently applicants who are natural or legal persons must demonstrate direct and individual concern regarding the omitted act, but it is not required that this act should be addressed to them. This enables such applicants to contest the failure to adopt decisions addressed to third parties, directives addressed to Member States or regulations, as long as they can show direct and individual concern. It is important to mention that the extension of the standing of individual applicants to bring actions for annulment against regulatory acts by the Lisbon Treaty (which waived the requirement of individual concern, cf paras 3.174–3.199) may also have a bearing on the right of individual applicants to bring actions for failure to act against the omission to adopt such acts. In this regard, the Court of Justice ruled in the post-Lisbon Gaki case that natural or legal persons have the right to bring an action for failure to act, in order to obtain a declaration that the institution or body failed to adopt an act, if they are entitled to challenge that act through an action for annulment.78 This may indicate that the Court of Justice intends to bring the standing of individual applicants under Article 265(3) TFEU in line with that under Article 263(4) TFEU also in the post-Lisbon system.79 Interest to act. As in the case of actions for annulment (cf para 3.109), individual applicants also need to show a legal interest in bringing proceedings when they seek a declaration of failure to act. It follows from the case law that Article 265 TFEU only allows a natural or legal person to seek a finding that an institution or body has wrongly failed to issue measures if those measures are intended to produce binding legal effects capable of affecting the applicant’s interests by bringing about a distinct change in his legal position.80 This case law may be reconciled with that on the possibility of bringing an action for failure to act also against the omission of issuing intermediate measures bereft of binding legal effects (cf para 3.371) if the legal interest to act is examined not by reference to the effects of the intermediate measures, but by reference to the impact of the final act for which the intermediate measures are a prerequisite.

76 Case C-68/95 T. Port [EU:C:1996:452] para 59. 77 Order of 24 November 2009 in Case T-228/08 Szomborg v Commission [EU:T:2009:463] paras 23–26. An example of an admissible direct action brought before the Court of Justice is Case C-107/91 ENU v Commission [EU:C:1993:56]. Empresa Nacional de Urànio SA (ENU) brought an action under Art 148 of the Euratom Treaty seeking a declaration that the Commission had failed to adopt and address to the applicant the decision which the latter had requested it adopt pursuant to Art 53 of that Treaty. The Court found the action admissible because the requested decision, even if it had been addressed to the Euratom Supply Agency, would have been of direct and individual concern to the applicant, which could therefore have contested it before the Court. 78 Order of 22 September 2016 in Case C-130/16 P Gaki v Commission [EU:C:2016:731] para 17. 79 In the Order of 22 September 2016 in Case C-130/16 P Gaki v Commission [EU:C:2016:731] para 17, the Court of Justice referred to Case C-68/95 T. Port [EU:C:1996:452] para 59, quoted in this para, but did not repeat the condition related to direct and individual concern. Instead, it chose a broader reference to the right to bring an action for annulment. This case was nonetheless focused on the issue of a reviewable act, not on standing. 80 Order of 30 March 2006 in Case T-2/04 Korkmaz and Others v Commission [EU:T:2006:97] para 63; Order of 24 November 2009 in Case T-228/08 Szomborg v Commission [EU:T:2009:463] paras 15–16.

3.384

262 Action for Failure to Act 3.385

Bodies, offices, agencies. Union bodies, offices and agencies are not among the privileged applicants, since they do not have the status of an EU institution. These entities may thus bring actions under the same conditions as other non-privileged applicants (there have been no such cases to date).

3.2.7. Formal Requirements and Procedural Aspects 3.386

General and specific formal requirements. An action for failure to act must satisfy the general formal requirements that apply to all direct actions (cf Subsection 4.2.2.1. Formal Requirements). By virtue of Article 21(1) of the Statute, Article 120 of the Rules of Procedure of the Court of Justice (CJ RoP) and Article 76 of the Rules of Procedure of the General Court (GC RoP), the application must state the subject matter of the dispute (cf paras 4.108, 4.120 and 4.147). Article 21(2) of the Statute defines the specific rule for applications for failure to act that, apart from the general content requirements, the application shall be accompanied by documentary evidence of the date on which an institution was requested to act (in the pre-litigation procedure, cf 3.349). Case law has clarified that both the formal notice and the Court application must refer to Article 265 TFEU and must indicate what act the institution or body failed to adopt (cf para 3.350).

3.387

Forms of order sought and grounds for action – the requirements of clarity and precision. Under this action, the form of order sought may only consist in requesting a declaration of a failure to act, whereas the claim to adopt a positive act is not admissible (cf para 4.147). Furthermore, an order on costs must also be asked for explicitly, as in other cases. The application in an action for failure to act must specify as its grounds one or several failures to act by one or more institutions or bodies. The application must describe in a sufficiently clear and precise manner the measures which the defendant failed to take, so that it makes it possible for the defendant to comply, under Article 266 TFEU, with the judgment allowing the claim. The application must also set out the rules of law which establish the duty to act for the defendant and the reasons for which the applicant alleges that that duty to act was breached.81

3.388

Several types of actions in one application. There is no obstacle to combining several types of admissible actions in a single case brought before the EU Courts, but it must be clear which part of the forms of order sought relates to which action. The combination of an action for failure to act and an action for annulment in a single application occurred, for example, in Edeka.82 Combining an action for failure to act with an action for damages also occurs occasionally.83 However, in situations where the alleged illegality causing damage relates to the failure to adopt an act, a single action for damages may be sufficient because the Courts will in any event examine whether such an unlawful omission occurred.84

3.2.8. Grounds for Review 3.389

General. The Courts’ analysis of the merits of actions for failure to act is usually shorter than in the case of other actions. The examination consists in determining, first, whether the institution

81 To

that effect, see Case C-13/83 Parliament v Council (common transport policy) [EU:C:1985:220] paras 35–36. T-611/15 Edeka-Handelsgesellschaft Hessenring v Commission [EU:T:2018:63]. 83 Order of 6 September 2011 in Case T-292/09 Mugraby v Council and Commission [EU:T:2011:418] para 16. 84 See, eg Case T-241/09 Nikolaou v Court of Auditors [EU:T:2013:79] paras 44–52. 82 Case

Result of the Proceedings 263 or body has a duty to act on the basis of Union law provisions, and secondly, if it has breached that duty by not adopting adequate measures (cf paras 3.360–3.364).

3.2.9. Result of the Proceedings Article 266 TFEU. Article 266 TFEU (ex Article 233 TEC) sets out the consequences of a successful action both for the action for annulment and the action for failure to act as follows:

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The institution whose act has been declared void or whose failure to act has been declared contrary to the Treaties shall be required to take the necessary measures to comply with the judgment of the Court of Justice of the European Union. This obligation shall not affect any obligation which may result from the application of the second paragraph of Article 340.

Consequences of a successful action. If the Courts declare that a failure to act by an institution or body has been contrary to Union law, that entity is required under Article 266 TFEU to take the necessary measures to comply with the judgment. That duty of compliance may only be averted or suspended if the institution or body concerned files an appeal and asks for interim measures in that procedure. Otherwise, the failure to comply with a judgment within a reasonable time (and after being formally invited to do so by the applicant) may lead to a second action for failure to act, this time about compliance with the previous judgment.85 An action for damages may be combined with the action under Article 265 TFEU (cf para 3.388) or it may follow a judgment establishing a failure to act (cf para 3.393).

3.391

Consequences of an unsuccessful action. As in other direct actions, an appeal may be lodged by the applicant. In addition, depending on the reason for which the action for failure to act was rejected, it may in some cases be possible to resubmit another action before the same Court. A rejection on the basis that the institution or body has already complied with the request to act or defined its position would render that matter res judicata (following a possible appeal procedure).

3.392

Sequence of actions. In some cases, the action for failure to act paves the way for an action for annulment (as the action for failure to act may induce the institution or body to adopt a challengeable act) or an action for damages (if the Courts find an illegal omission that caused damage to the applicant). In other cases, it may follow other actions, and it is a way to ensure that their result is enforced. For example, an action for failure to act may result from a failure to comply with a previous judgment finding a failure to act; similarly, it can be used to force the institution to eliminate the consequences of the act declared void in an action for annulment86 (cf para 3.336).

3.393

The useful nature of the failure to act procedure. Despite the small number of cases that have been brought over the years, the failure to act action is still a useful complement to other actions (cf paras 3.388 and 3.393). It specifically targets the inaction of EU institutions and bodies, for which, at most, an action for damages could offer some degree of remedy (however, the rate of success is much lower in the case of the latter actions). Often, the applicants under an action for

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85 To that effect, see Order of 7 January 2013 in Case T-274/12 Alfastar Benelux v Council [EU:T:2013:1]. 86 Joined Cases C-97/86, C-99/86, C-193/86 and C-215/86 Asteris and Others v Commission [EU:C:1988:199] paras 22–24, 32; Case C-123/03 P Commission v Greencore [EU:C:2004:783] para 46; Joined Cases T-297/01 and T-298/01 SIC v Commission [EU:T:2004:48] para 31; Order of 4 May 2005 in Case T-86/03 Holcim (France) v Commission [EU:T:2005:157] para 33.

264 Action for Failure to Act failure to act aim to put an end to a long procedure where they perceive the institution or body concerned as not being sufficiently active.87 If the institution or body has still not acted by the end of the Court procedure, it cannot ignore the judgment finding a failure to act.88 Another benefit for such applicants is that bringing an action for failure to act may induce the adoption of an act, which may give rise to an action for annulment. At the very least, the action for failure to act is useful for declaratory and reputational purposes,89 even if it is often terminated after the definition of a position or the adoption of a negative act, which may not always be challengeable acts.

87 While in most cases the applicants for failure to act are persons that have an interest in an act being adopted (such as complainants), it has been used or threatened by undertakings under competition proceedings, which had perceived the investigation as lasting too long and strove to induce the Commission to adopt a challengeable act or to drop the case. 88 While one may consider that the institution or body can too easily avoid a judgment by defining its position or adopting an act, it is more appropriate to consider this as the public success of the applicant, which will become known through the order dismissing the action. Moreover, the defendant will bear the legal costs of the action and face potential claims for damages too (cf para 3.356). 89 The declaration of unlawfulness of the inaction may also enhance the chances for the compensation of damages asked from the institution or body in a separate procedure.

3.3. Action for Damages [written by Martin Farley1]

3.3.1. Overview Notion. The right to recover damages from the EU is governed by Articles 268 and 340 TFEU, which provide that a person shall be entitled to compensation in the event that an institution has caused loss in the performance of its duties.2 The action must be brought against the EU as a whole, or against one of its institutions or bodies.3 According to consistent case law, the possibility for the EU to be liable under Article 340 TFEU ‘is conditional upon the satisfaction of a set of conditions, namely, the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between that conduct and the damage complained of ’.4 The result of a successful action is that the applicant is awarded damages to be paid by the Union. However, if the damage was caused by an unlawful act of the Union, that act is not declared void.5 Actions for damages are direct actions (cf para 4.15), thus the procedural rules presented in Chapter 4.2. Procedure in Direct Actions are applicable to them.

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Forum. Actions for damages are essentially brought by individual applicants against the EU as a whole or against one or several of its institutions or bodies.6 First instance actions must, therefore, be lodged with the General Court. In 2018, 24 actions for damages were brought before the General Court,7 the majority of them concerning the field of public procurement.

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Article 268 TFEU. Article 268 TFEU (ex Article 235 TEC) lays down the competence of the EU Courts for hearing and determining actions for damages:

3.397

‘The Court of Justice of the European Union shall have jurisdiction in disputes relating to compensation for damage provided for in the second and third paragraphs of Article 340.’

In this respect, Article 268 TFEU establishes an area of exclusive competence for the EU Courts as regards matters raised under Article 340(2)–(3) TFEU.8 1 Member of the Legal Service, European Commission. The views expressed in this article are those of the writer and may not be regarded as stating an official position of the European Commission. 2 Such rights are also enshrined in Art 41(3) of the Charter of Fundamental Rights, which provides, under the title ‘Right to good administration’, that ‘Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States’. 3 Throughout this book, the term ‘institution or body’ denotes any institution, body, office or agency of the Union within the meaning of Arts 263(1) and 265(1) TFEU, while the term ‘EU institution’ is reserved for institutions of the Union listed in Art 13(1) TEU. 4 Case T-341/07 Sison v Council [EU:T:2011:687] para 28 and the case law cited. 5 Such a result can only be obtained through a succesful action for annulment (cf para 3.322). The unlawful act may be declared void in the same proceedings if the applicant brings a combined action for damages and action for annulment in a single application. 6 Arts 268 and 340 TFEU do not preclude that a Member State brings an action for damages against the EU, however, such cases have not arisen in practice. 7 Source: InfoCuria – case-law search. NB: a simple query for ‘actions for damages’ also yields staff cases with damage claims, which are not actions for damages within the meaning of Art 268 TFEU. 8 Case C-282/90 Vreugdenhil v Commission [EU:C:1992:124] para 14.

266 Action for Damages 3.398

Article 340 TFEU. Article 340 TFEU (ex Article 288 TEC) regulates the contractual and non-contractual liability of the EU. It provides as follows: The contractual liability of the Union shall be governed by the law applicable to the contract in question. In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties. Notwithstanding the second paragraph, the European Central Bank [ECB] shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by it or by its servants in the performance of their duties. The personal liability of its servants towards the Union shall be governed by the provisions laid down in their Staff Regulations or in the Conditions of Employment applicable to them.

Article 340(1) TFEU thus regulates the situation where an EU institution has entered into a formal contract with a natural or legal person and subsequently breached the terms of that contract. This so-called ‘contractual liability’ is excluded from the scope of actions for damages, since Article 268 TFEU does not refer to Article 340(1) TFEU. In contrast, Article 340(2)–(3) TFEU, to which Article 268 makes explicit reference, seeks to address the situation where an EU institution or body has caused loss through the exercise of its legislative, administrative or executive functions (so-called ‘non-contractual liability’). Compensation for such losses can be sought via an action for damages brought under Article 268 TFEU. 3.399

Admissibility. Apart from the general requirements applicable to all direct actions, the main conditions for admissibility of actions for damages are the following: i) The action for damages must relate to the non-contractual liability of the EU, to the exclusion of the liability of Member States that implement EU acts; it must not seek an effect that is identical to that of a time-barred action for annulment or action for failure to act (cf Section 3.3.2. The Non-contractual Liability of the EU); ii) The action must be brought against the Union as a whole or against one or several of its institutions or bodies (cf Section 3.3.3. Defendants); iii) It must be lodged by a natural or legal person who is eligible to bring a claim (cf Section 3.3.4. Applicants); iv) The action must comply with the formal requirements (cf Section 3.3.5. Formal Requirements); v) The action must be brought within the five-year limitation period (cf Section 3.3.6. Limitation Period).

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Substance. As regards the substance, the applicant has to demonstrate that the institution’s or body’s conduct was unlawful and that the breach of law is sufficiently serious to be caught by Articles 268 and 340 TFEU; that the applicant suffered damage; and that there is a causal link between the unlawful conduct and the damage (cf Section 3.3.7. Substantive Requirements for Liability). The consequence of a successful action is that the applicant is awarded damages (cf Section 3.3.8. Compensation for Damage).

3.3.2. The Non-contractual Liability of the EU 3.3.2.1. Action for Damages only Concerns Non-contractual Liability 3.401

General. It is important to emphasise that under Article 268 TFEU, the EU Courts only have jurisdiction in disputes relating to compensation for damage provided for in Article 340(2)–(3),

The Non-contractual Liability of the EU 267 which concerns the EU’s non-contractual liability. It follows that compensation for any damage caused by the EU institutions or bodies in the framework of contractual relations should be sought by bringing other types of actions. (i) Contractual Liability of the EU Jurisdiction. While it follows from Article 268 TFEU that an action for damages may only be brought on the basis of the EU’s non-contractual liability, other Treaty provisions make it possible to seek damages also for the breach of contractual provisions by the EU. First, where the relevant contract to which the EU is party includes an arbitration clause specifically bestowing jurisdiction on the Court of Justice of the European Union in accordance with Article 272 TFEU,9 an action under that Treaty Article may be brought before the General Court, in which a damage claim may be raised. Secondly, if there is no such arbitration clause, matters arising out of contractual disputes between the Union and third parties may be brought before national courts in accordance with Article 274 TFEU10 and shall be governed by the law applicable to the contract in question.11 In such a case, the Union may also be represented, before a national court, by an authority of a Member State.12

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Contractual interpretation. Where the dispute in question requires the interpretation of contractual clauses, this will fall within the ambit of Article 274 TFEU and, as such, unless the relevant contract includes an arbitration clause in favour of the EU Courts, jurisdiction will lie with the national courts.13

3.403

Nature of the damage. Due to the difference in jurisdiction between claims brought on the basis of contractual and non-contractual liability, it is incumbent upon the EU Courts to determine the nature of the damage claimed.14 Such assessment is carried out on the basis of objective factors, including: the nature of the alleged damage, the conduct giving rise to the damage, and the legal relationship between the parties.

3.404

Damage claims brought by EU staff are excluded from the scope of Article 268 TFEU. Civil servants employed by the EU institutions or bodies are not entitled to rely on Article 268 TFEU when they claim damages in connection with their employment relationship (cf para 3.478). Rather, they have a separate avenue to bring damage claims against the Union under Article 270 TFEU (cf Chapter 3.4. Staff Cases). As such, if the applicant civil servant files an action for damages or raises a damage claim without following the pre-litigation procedure provided for by the Staff Regulations (cf para 3.486 et seq), that action or claim for damages will be dismissed as inadmissible.15

3.405

9 See Case C-426/85 Commission v Zoubek [EU:C:1986:501] para 11; Case C-114/94 IDE v Commission [EU:C:1997:68] para 82; Case C-103/11 P Commission v Systran and Systran Luxembourg [EU:C:2013:245] para 58. 10 Art 274 TFEU provides that ‘Save where jurisdiction is conferred on the Court of Justice of the European Union by the Treaties, disputes to which the Union is a party shall not on that ground be excluded from the jurisdiction of the courts or tribunals of the Member States’. 11 Case C-232/84 Commission v Tordeur [EU:C:1985:392] paras 18–19; Joined Cases C-80/99 to C-82/99 Flemmer and Others v Council and Commission [EU:C:2001:525] para 39; Case C-214/08 P Guigard v Commission [EU:C:2009:330] para 39. 12 Joined Cases C-80/99 to C-82/99 Flemmer and Others v Council and Commission [EU:C:2001:525]. 13 Case C-103/11 P Commission v Systran and Systran Luxembourg [EU:C:2013:245] paras 67–68. 14 Joined Cases C-80/99 to C-82/99 Flemmer and Others v Council and Commission [EU:C:2001:525]; Case T-271/04 Citymo v Commission [EU:T:2007:128]; Case T-29/11 Technische Universität Dresden v Commission [EU:T:2014:912]. 15 Order of 26 June 2018 in Case T-757/17 Kerstens v Parliament [EU:T:2018:391] paras 36–38 and the case law cited.

268 Action for Damages (ii) Non-contractual Liability of the EU 3.406

Notion. The non-contractual liability of the EU can be established if, through its acts or conduct, it committed a sufficiently serious breach of a rule of law that is not contractual in nature; the applicant suffered damage; and there is a causal link between the unlawful act or conduct and the damage. These elements are cumulative. As such, failure to satisfy the requirements of any one of these criteria will result in the application being rejected without the EU Courts being required to examine the other criteria.16 These substantive requirements for the EU’s liability are examined below in Section 3.3.7.

3.407

Loss suffered by the institutions is not covered by Article 340 TFEU. It should be noted that Article 340(2)–(3) TFEU deals with loss suffered by individuals (natural or legal persons) as a result of the conduct by the Union or its institutions or bodies. These provisions do not cover the opposite situation, that is, where the Union or its institutions or bodies have suffered loss as a result of private conduct by individuals (for example, where the Union has suffered loss as a result of purchasing products that were subject to illegal cartel behaviour by the manufacturers). Such situations are matters for the national courts under the relevant legal system.17

3.3.2.2. Concurrent Liability where EU Acts are Implemented by National Authorities 3.408

Determining jurisdiction when national authorities implement EU law. As noted at the outset of this chapter, under Article 268 TFEU, the EU Courts have exclusive jurisdiction to rule on noncontractual damages falling under Article 340(2)–(3) TFEU. All other claims for non-contractual damages fall within the jurisdiction of national courts.18 In addition, the Union can only be liable where it is the author of the act or conduct in question (see further Section 3.3.3 below). An action for damages based directly on an act or omission of an institution or body will, therefore, clearly fall within the jurisdiction of the EU Courts. In many situations, however, although an underlying act might originate from an EU institution, it is the authorities of Member States who implement those rules. An EU measure requiring importers to obtain permits from national authorities for the importation of goods into the EU may provide an illustration. The measure is adopted by the EU, but it is implemented by the national authority, which decides whether to grant the licence.19 In such situations, in the event of illegality, which entity should be liable for damages – the EU institution that adopted the act or the national entity that implemented it? To answer this question, the following two situations should be distinguished. First, if Union law is wrongfully applied by national authorities, the author of the wrongful act is the national

16 Case T-121/08 PC-Ware Information Technologies v Commission [EU:T:2010:183] paras 105–106; Case T-589/08 Evropaïki Dynamiki v Commission [EU:T:2011:73] para 112; Case T-514/09 bpost v Commission [EU:T:2011:689] para 167; Case T-587/10 Interspeed v Commission [EU:T:2012:355] paras 38 and 56; Case T-114/11 Giordano v Commission [EU:T:2012:585] paras 12–13; Case T-668/11 VIP Car Solutions v Parliament [EU:T:2013:302] paras 34, 35 and 38; Case T-415/10 Nexans France v Joint Undertaking Fusion for Energy [EU:T:2013:141] paras 179–180; Order of 17 July 2014 in Case C-643/13 P Melkveebedrijf Overenk v Commission [EU:C:2014:2118] para 25; Joined Cases T-91/12 and T-280/12 Flying Holding v Commission [EU:T:2014:832] paras 115 and 118; Order of 13 January 2015 in Case T-579/13 Istituto di vigilanza dell’urbe v Commission [EU:T:2015:27] paras 75–76; Joined Cases T-539/12 and T-150/13 Ziegler and Ziegler Relocation v Commission [EU:T:2015:15] paras 59 and 60. 17 Case C-199/11 Europese Gemeenschap v Otis NV and Others [EU:C:2012:684]. 18 Case C-101/78 Granaria [EU:C:1979:38] paras 14–16; Joined Cases C-67/75 to C-85/75 Dumortier Frères and Others v Commission [EU:C:1976:42] para 7; Case C-282/90 Vreugdenhil v Commission (Vreugdenhil II) [EU:C:1992:124] para 12. 19 Joined Cases C-5/66, C-7/66 and C-13/66 to C-24/66 Kampffmeyer and Others v Commission [EU:C:1967:31].

The Non-contractual Liability of the EU 269 a uthority and not the Union. As such, liability in damages lies against the national authority before the national courts. No action can be brought against the Union under Article 340(2) TFEU.20 Secondly, the application of Union law by national authorities can be unlawful because the underlying Union law itself is unlawful. The EU Courts have ruled that a claim must be brought against the measure adopted by the national authorities before the national courts in these situations as well.21 However, the national court may well need to make a preliminary reference to the Court of Justice seeking a ruling on the validity of the underlying Union rule. This principle is, however, subject to the national courts having the power to afford effective protection to the applicant, and be capable of awarding compensation in the event that the claim is well founded.22 If no such form of redress exists before the national court, this should render an action before the EU Courts under Article 340(2) TFEU admissible.23 Concurrent liability and the exhaustion of national remedies principle. In certain situations, it may arise that both the Union institutions and national authorities are responsible for the loss. Such a situation may arise, for example, where an act of a national authority is not in conformity with EU law but it has nevertheless obtained approval from the Commission. In such situations, the EU Courts have held that an applicant seeking damages must, in general, first seek redress against national authorities before the national courts to determine whether and to what extent the relevant national authorities are responsible.24 It is only once this prerequisite has been complied with that the applicant may bring proceedings under Article 340(2) TFEU. In the event that an applicant fails to comply with the exhaustion rule, the EU Courts will declare an action under Article 340(2) TFEU inadmissible.25 Once again, however, this requirement only applies to the extent that the national remedies available give effective protection to the individuals concerned, and are capable of leading to compensation for the damage alleged.26

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Lis pendens. If an applicant lodges two applications at the same time – one before the EU Courts against the EU institutions and one before the national courts against the national authorities – seeking compensation for the same injury, which could result in the applicant being either overcompensated or undercompensated, the EU Courts will wait until the national court has given judgment before ruling on the existence and the quantum of any damage.27 The EU Courts will also not adjudicate on the causal link between the conduct alleged against the EU and the damage invoked prior to the national court’s ruling. However, the EU Courts may, even before the national court has given its ruling, determine whether the conduct alleged is capable of giving rise to non-contractual liability on the part of the EU.28

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20 Joined Cases C-89/86 and C-91/86 Etoile Commerciale and CNTA v Commission [EU:C:1987:337] paras 16–19; Case T-261/94 Schulte v Council and Commission [EU:T:2002:27] para 52; Case T-571/93 Lefebre v Commission [EU:T:1995:163] para 66. 21 Case C-281/82 Société à responsabilité limitée Unifrex v Commission and Council [EU:C:1984:165] paras 11–12; Case T-47/02 Danzer v Council [EU:T:2006:167] para 33. 22 Case C-281/82 Société à responsabilité limitée Unifrex v Commission and Council [EU:C:1984:165] paras 11–12. 23 Case C-197/80 Ludwigshfener Walzmühle v Council and Commission [EU:C:1981:311] para 9; Case T-317/12 Holcim (Romania) v Commission [EU:T:2014:782] paras 74–75. 24 Case T-167/94 Nölle v Council and Commission [EU:T:1995:169] paras 35–36. 25 Case C-96/71 R & V Haegeman v Commission [EU:C:1972:88]; Case C-281/82 Société à responsabilité limitée Unifrex v Commission and Council [EU:C:1984:165]. 26 Case C-281/82 Société à responsabilité limitée Unifrex v Commission and Council [EU:C:1984:165] paras 11–12. See also W Wils, ‘Concurrent Liability of the EU and a Member State’ (1992) European Law Review 191, 199. 27 Case C-30/66 Becher v Commission [EU:C:1967:33]; Case T-138/03 É.R. and Others v Council and Commission [EU:T:2006:390] para 42. 28 Case T-317/12 Holcim (Romania) v Commission [EU:T:2014:782] paras 73–75, 79 and 80.

270 Action for Damages

3.3.2.3. Actions for Damages are an Independent Form of Action 3.411

Distinction between damages actions and other forms of direct action. Actions brought under Articles 268 and 340(2)–(3) TFEU are distinct from other forms of direct action, such as actions for annulment or actions for failure to act. The subject matter of damages cases is not the annulment of an act or the declaration regarding a failure to act. Rather, their purpose is to establish a form of financial redress for individuals who have suffered loss as a result of the conduct of the institutions or bodies.29 Nevertheless, the standard requirement that the defendant institution or body must have acted ‘unlawfully’ before being liable in damages necessarily means that an inherent link exists between the legality of an act and the applicant’s entitlement to damages. Despite this link, the fact that actions for damages constitute an independent form of action means that it is not necessary to bring either an action for annulment or an action for a failure to act before being able to a claim for damages, for such a prerequisite would be contrary to the independent nature of Article 340 TFEU.30 A claim for damages may also be admissible in the case where the applicant does not have the standing to bring an action for annulment or an action for failure to act against the purportedly illegal act or inaction that caused the damage (cf para 3.215).31

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Actions for damages cannot be used to circumvent time limits or the effects of res judicata. However, in view of the difference in time limits that apply to actions brought under Articles 263 and 265 TFEU, on the one hand, and the five-year limitation period that applies to actions for damages brought under Article 340(2)–(3) TFEU, on the other, the EU Courts had to take steps to prevent actions being brought under Article 340 TFEU as a means of circumventing the short deadlines applicable under Articles 263 and 265 TFEU. As such, where the individual is the direct addressee of the act and, therefore, clearly had standing to bring an action for annulment but failed to do so in good time, an action for damages seeking the same effect as the one that could result from the annulment of the act will be declared inadmissible32 (cf para 3.239). Similarly, as regards res judicata, if the EU Courts have already assessed the legality of a measure – either by way of a previous direct action or a preliminary ruling on validity – a subsequent action under Article 340 TFEU cannot call into question the EU Courts’ previous ruling.33

3.413

Actions for damages cannot be brought to achieve the same effect as annulment. The EU Courts will also declare an action for damages under Article 340(2)–(3) TFEU inadmissible if, in essence, it merely seeks to have the same effect as the hypothetical annulment of the contested measure. Such a situation could arise, for example, if the applicant seeks damages in an amount that is identical to the amount that an individual has been ordered to pay by way of individual decision, thereby essentially seeking a result equivalent to the withdrawal of the decision in question,34 or where the purpose of the action is to recover an amount equal to a subsidy to which the applicant was not entitled according to a purportedly unlawful EU measure.35 29 Case C-5/71 Aktien-Zuckerfabrik Schöppenstedt v Council [EU:C:1971:116] para 3; Case C-131/03 P Reynolds Tobacco v Commission [EU:C:2006:541] paras 82–84; Case T-135/09 Nexans France and Nexans v Commission [EU:T:2012:596] para 133; Case T-47/02 Danzer v Council [EU:T:2006:167]. 30 Case C-5/71 Aktien-Zuckerfabrik Schöppenstedt v Council [EU:C:1971:116]; Case C-4/69 Alfons Lütticke v Commission [EU:C:1971:40] para 6. 31 Case T-279/11 T & L Sugars and Sidul Açúcares v Commission [EU:T:2013:299] paras 105–112; see also Case C-281/82 Société à responsabilité limitée Unifrex v Commission and Council [EU:C:1984:165]. 32 Case C-4/67 Anne Muller (née Collignon) v Commission [EU:C:1967:51]. 33 T-291/04 Enviro Tech Europe and Enviro Tech International v Commission [EU:T:2011:760] para 138; Order of 13 December 1999 in Case T-268/94 Tyco Toys and Others v Commission and Council [EU:T:1999:316] para 24. 34 Case C-175/84 Krohn v Commission [EU:C:1987:8] para 33; Case T-47/02 Danzer v Council [EU:T:2006:167] paras 28–30; Case T-340/99 Mathisen v Council [EU:T:2002:174] para 134. 35 Case T-186/98 Inpesca v Commission [EU:T:2001:42] paras 70–77.

Defendants 271 Actions for damages do not result in the annulment of the illegal measure. An action for damages may be combined with an action for annulment36 (cf para 3.334) or an action for failure to act. However, a self-standing action pursuant to Article 340(2)–(3) TFEU, even if successful, will not result in the annulment of the act in question. This fact, however, does not permit the relevant institution or body to sidestep its obligation to take appropriate measures to give effect to the EU Courts’ judgments – which could, ultimately, result in the institution or body concerned withdrawing the measure at issue in the damages case.37

3.414

3.3.3. Defendants The Union must be the author of the conduct. Actions for damages may only be brought in respect of acts or omissions of the Union. If the Union is not the author of the act or conduct, there can be no liability on the part of the Union under Article 340(2)–(3) TFEU, and the action concerning such conduct is dismissed as inadmissible on the grounds of lack of jurisdiction.38

3.415

The action may be brought against the Union as a whole or against the relevant institution or body. Although it is the Union that must be regarded as the defendant in actions brought under Article 340(2) TFEU and not its institutions or bodies, the Union will be represented by one or several of the institutions or bodies against which the matter giving rise to liability is alleged.39 The Courts have been prepared to accept both cases that bring an action against a specific institution or body40 and claims brought against the EU as a whole (cf para 4.119), provided that this does not affect the rights of the defence.41

3.416

EU institutions. In respect of the institutions whose actions could cause the EU to be liable in damages, Article 340(2) TFEU encompasses measures adopted by the institutions listed in Article 13 TEU,42 including the EU Courts themselves.43 Article 340(3) TFEU also provides that the ECB can be held liable for non-contractual damage under the same conditions as the Union and the other institutions. The fact that its liability is regulated in a separate paragraph of Article 340 TFEU indicates that it would be the ECB and not the Union itself that would need to make good the damage arising from the ECB’s illegal conduct.44 The substantive requirements

3.417

36 Case C-152/88 Sofrimport v Commission [EU:C:1990:259]. 37 Joined Cases C-120/06 and C-121/06 FIAMM and FIAMM Technologies v Council and Commission [EU:C:2008:476] paras 122–124. 38 Order of 4 July 2013 in Case C-520/12 P DES v Commission [EU:C:2013:457] paras 35–38; Order of 10 November 2014 in Case T-289/13 Ledra Advertising v Commission and ECB [EU:T:2014:986] paras 42–47. 39 Joined Cases C-63/72 to C-69/72 Wilhelm Werhahn Hansamühle and Others v Council of the European Communities [EU:C:1973:121]; Case C-353/88 Briantex and Di Domenico v Commission [EU:C:1989:415] para 7; Case T-246/93 Bühring v Council and Commission [EU:T:1998:21] para 26; Case T-383/00 Beamglow v Parliament and Others [EU:T:2005:453] para 68; Order of 6 September 2011 in Case T-292/09 Mugraby v Council and Commission [EU:T:2011:418] para 24. 40 For an example where the action was brought not against an EU institution but against another body, see Case T-415/10 Nexans France v Joint Undertaking Fusion for Energy [EU:T:2013:141]. 41 Compare the claims brought in Case C-106/81 Julius Kind KG v EEC [EU:C:1982:291] and Case T-246/93 Günther Bühring v Council of the European Union and Commission of the European Communities [EU:T:1998:21]. 42 Despite previous case law to the contrary (Case T-346/03 Krikorian and Others v European Parliament and Others [EU:T:2003:348] para 17), following the adoption of the Lisbon Treaty and the abolition of the distinction between the European Communities and the European Union, acts of the European Council should now also be subject to Art 340(2) TFEU. 43 Order of 2 February 2015 in Case T-577/14 Gascogne Sack Deutschland and Gascogne v European Union [EU:T:2015:80] paras 14–20; Order of 6 January 2015 in Case T-479/14 Kendrion NV v European Union [EU:T:2015:2]. This contrasts to actions for annulment and actions for failure to act, where Arts 263 and 265 TFEU explicitly exclude the Court of Justice and the Court of Auditors from the circle of defendants. 44 K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, Oxford, 2014) 498.

272 Action for Damages regarding the establishment of the non-contractual liability of the ECB are nonetheless the same as in the case of the Union and the other institutions or bodies.45 3.418

EU bodies, offices and agencies. Apart from cases initiated against EU institutions, the Courts have also been prepared to hear cases brought against bodies, offices and agencies of the Union, such as the European Investment Bank,46 the European Ombudsman47 and the Joint Undertaking Fusion for Energy.48 The General Court held in this regard that the term ‘institution’ within the meaning of Article 340(2) TFEU also covers, with regard to the system of non-contractual liability established by the Treaty, all other Union bodies set up by the Treaty and intended to contribute to the achievement of the EU’s objectives. Consequently, measures taken by those bodies in the exercise of the powers assigned to them by Union law are attributable to the Union.49 It is important to mention that, unlike in the case of actions for annulment, the mere fact that the EU body is not empowered to adopt any measures with binding legal effects is not an obstacle to admissibility, thus such bodies may be defendants in actions for damages.50

3.419

Acts of individuals working for the institutions. In respect of acts of individuals working for EU institutions, an applicant is not required to bring an action directly against the person involved. It is sufficient for the applicant to lodge the action for damages against the EU per se, as represented by the institution employing the servant.51 The EU would only be liable for damage where the injury has been caused by an official act – that is, where the act was undertaken in the performance of the servant’s duties. Where this is not the case, then the servant will be personally liable before the national courts.52

3.3.4. Applicants 3.420

Persons eligible to bring a claim. Any natural or legal person who claims to have been injured by an act of the EU or one of its servants has the possibility of bringing an action against the EU under Article 340(2) TFEU.53 In the case of legal persons, applicants must show that the damage affects their own assets, and that they are bringing their claim in their capacity as a legal person.54 While this criterion will not ordinarily pose any difficulty for private enterprises, it can have an effect on the possibility for associations or trade unions to bring claims.55 For example, in the Civil Servants’ Union case, a trade union representing the interests of EU officials sought the annulment of a regulation on the adjustment of its members’ salaries. The Court of Justice considered that the applicant trade union (Union syndicale) was seeking to enforce the personal

45 Case T-3/00 Pitsiorlas v Council and ECB [EU:T:2007:357] paras 289–295. 46 Case C-370/89 SGEEM and Etroy v EIB [EU:C:1993:202] para 16. 47 Case T-209/00 Lamberts v European Ombudsman [EU:T:2002:94]. 48 Case T-415/10 Nexans France v Joint Undertaking Fusion for Energy [EU:T:2013:141]. 49 Case T-209/00 Lamberts v European Ombudsman [EU:T:2002:94] para 49 and the case law cited. 50 Case T-209/00 Lamberts v European Ombudsman [EU:T:2002:94] paras 48–52. 51 Opinion of AG Lagrange in Case C-23/59 Acciaieria Ferriera di Roma (FERAM) v High Authority [EU:C:1959:26]. 52 Case C-5/68 Claude Sayag and S.A. Zurich v Jean-Pierre Leduc and Others [EU:C:1968:42]. 53 Case C-118/83 CMC Cooperativa muratori e cementisti and Others v Commission [EU:C:1985:308] para 31. This applies regardless of whether or not the applicant is a European citizen – see Case C-119/77 Nippon Seiko v Council and Commission [EU:C:1979:93]; Case C-239/82 Allied Corporation and Others v Commission [EU:C:1984:68]. 54 Case C-114/83 Société d’Initiatives et de Coopération Agricole v Commission [EU:C:1984:246] paras 3–5; Case C-289/83 GAARM and Others v Commission [EU:C:1984:398] paras 4–5; Joined Cases T-481/93 and T-484/93 Vereniging van Exporteurs in Levende Varkens and Others v Commission [EU:T:1995:209] para 76. 55 Case C-267/80 Birra Wührer and Others v Council and Commission [EU:C:1985:427].

Limitation Period 273 proprietary interests of the officials and servants, rather than a right held by the trade union itself, and therefore its claim for damages was inadmissible.56 In order to fulfil the requirements of admissibility, an association must either bring an action on the basis of a loss suffered by it in its capacity as an association or show that the right has been assigned to it by its members.57 Assignment of the right to bring a claim. A person who suffers injury may, in certain circumstances, assign his or her right which had been infringed, together with his or her claim for damages, to another person, who will consequently be entitled to bring an action by subrogation.58 For instance, in Ireks-Arkady, the applicant brought an action for damages against the Council and the Commission, and submitted that the claim for compensation was assigned to it by the firm Ruckdeschel, which actually suffered the damage resulting from the defendants’ illegal act. The Court of Justice considered that the action was admissible, since there was no cause to believe that the assignment might have led to an abuse.59 That case, however, concerned a situation in which Ireks-Arkady and Ruckdeschel belonged to the same group of companies.

3.421

3.3.5. Formal Requirements General and specific formal requirements. In order to be admissible, an action for damages must satisfy the general formal requirements that apply to all direct actions (cf Subsection 4.2.2.1. Formal Requirements). By virtue of Article 21(1) of the Statute and Article 76(d) of the Rules of Procedure of the General Court (GC RoP), the application must state the subject matter of the dispute (cf paras 4.108 and 4.120). In this regard, the action for damages must state the evidence from which the unlawful conduct which the applicant alleges against the institution or body can be identified, the reasons for which the applicant considers that there is a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage (cf paras 4.142–4.146; see also paras 3.460 and 3.463).

3.422

3.3.6. Limitation Period Five-year limitation period; 10 days are not added on account of distance. Article 46 of the Statute provides that matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise to the damage. It is important to emphasise that the limitation period foreseen in Article 46 of the Statute is not a procedural time limit, thus the extension on account of distance60 is not applicable to it when the deadline to file an action is calculated61 (cf para 4.78).

3.423

When does the limitation period begin to run? The limitation period does not begin until the damage has materialised.62 Where the full extent of the damage does not materialise immediately,

3.424

56 Case C-72/74 Union syndicale and Others v Council [EU:C:1975:43] paras 20–22. 57 Case C-114/83 Société d’Initiatives et de Coopération Agricole v Commission [EU:C:1984:246] paras 3–5 and 20–22. See also Case C-256/80 Birra Wührer and Others v Council and Commission [EU:C:1984:341]. 58 K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, Oxford, 2014) 494. 59 Case C-238/78 Ireks-Arkady v Council and Commission [EU:C:1979:226] para 5. 60 CJ RoP, Art 51; GC RoP, Art 60. 61 Order of 13 November 2014 in Case T-40/14 Electrabel and Dunamenti Erőmű v Commission [EU:T:2014:1004]. 62 Case C-267/80 Birra Wührer and Others v Council and Commission [EU:C:1985:427].

274 Action for Damages but develops over a period of time, the damages claim will continue to be admissible, but only insofar as the applicant seeks compensation for damage arising during a period that started no longer than five years before the time at which the action is brought.63 3.425

Interruption of the limitation period. Under Article 46 of the Statute, the five-year period of limitation is interrupted if proceedings are instituted before the EU Courts or if, prior to such proceedings, an application is made by the aggrieved party to the relevant institution or body, on condition that, in the latter event, the proceedings are instituted within the period of two months provided for in Article 263 TFEU or the period of four months provided for in Article 265 TFEU. Under settled case law, the purpose of Article 46 of the Statute is merely to postpone the expiration of the period of five years when proceedings instituted or a prior application made within that period start time to run in respect of the periods provided for in Articles 263 or 265 TFEU, and it is not intended to shorten the five-year limitation period established by that article where the request for indemnification of damage addressed to the relevant institution or body has not been followed by an action for annulment (eg against an explicit decision refusing the request for indemnification) or an action for failure to act (eg in the case of absence of any reaction to the request) within the time limits laid down for that purpose by Articles 263 and 265 TFEU.64 The case law is not entirely clear as to whether an action for annulment brought against the illegal act causing the damage interrupts the limitation period. On the one hand, after a successful action for annulment, the applicant has the right to be restored to his original position. Bringing an action for damages against the institution or body that adopted the illegal act, by relying on the illegalities found by the General Court in the annulment judgment, is a guarantee of obtaining redress (cf para 3.334). That guarantee should arguably not depend on whether the General Court delivers its annulment judgment within the five-year limitation period or after its expiry, in case of a prolonged procedure. On the other hand, the Court of Justice ruled in Holcim (Deutschland) that the action for annulment brought against the illegal act that caused the damage had not interrupted the five-year limitation period open for bringing an action for damages.65

3.3.7. Substantive Requirements for Liability 3.426

The general principles common to the laws of the Member States. Article 340(2) TFEU is unique in that it is the only provision of the TFEU that unreservedly refers to a concept of EU law being based on the ‘general principles common to the laws of Member States’. Article 340(2) TFEU has remained unchanged through the various iterations and amendments to the Treaties. In accordance with the approach that exists in various legal systems, the non-contractual liability of the EU can be established if its conduct – act or omission – was unlawful (it breached a rule of law), the applicant suffered damage, and there is a causal link between the unlawful conduct and the damage. The EU Courts nonetheless added many qualifications to these conditions, which

63 Case T-174/00 Biret International SA v Council [EU:T:2002:2]; Case T-28/03 Holcim (Deutschland) v Commission [EU:T:2005:139] paras 59–74. 64 Case T-167/94 Nölle v Council and Commission [EU:T:1995:169] para 30 and the case law cited. See also K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, Oxford, 2014) 547–548. 65 Case C-282/05 P Holcim (Deutschland) v Commission [EU:C:2007:226] para 36. In this case, the annulment judgment, on which the damage claim was founded, had been delivered more than five years after the initiation of the action for annulment (Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others v Commission (cement cartel) [EU:T:2000:77].

Substantive Requirements for Liability 275 are peculiar to the EU legal order, in particular with regard to the notion of a breach of a rule of law (cf paras 3.431–3.448). The Courts have thus drawn on national principles only as a source of inspiration to develop an independent Union law on liability.66 Unlawfulness, damage and causation are cumulative conditions. The presence of unlawfulness, damage and the causal link between them are three cumulative requirements. All must be fulfilled in order for the EU’s non-contractual liability to be established. There is no particular order in which the Courts examine these criteria. If the Courts state that one of them is not fulfilled, the action for damages is dismissed.67

3.427

Burden of proof. The burden of proof lies with the applicant to establish and provide evidence that each of the relevant criteria is satisfied in a given case. It is not up to the EU Courts to carry out their own ex officio examination to establish whether the conditions are satisfied.68

3.428

3.3.7.1. Unlawful Act or Conduct (i) General Historical development. In its early case law, the EU Courts applied different substantive tests for establishing whether the EU could be held liable in damages depending on whether the allegedly illegal measure could be categorised as an administrative or legislative act. Administrative acts were acts by which the institution applied general rules in individual cases or otherwise exercised its executive powers in an individual manner. Legislative measures, however, concerned broad policy areas and required the institution to make a choice as to the way in which an issue should be resolved.69 In relation to administrative acts, the Court of Justice determined that the requirement of unlawful conduct for the purposes of what is now Article 340(2) TFEU would be satisfied by any infringement of law. In relation to legislative measures, however, an act would only be unlawful for the purposes of Article 340(2) TFEU where it constituted a sufficiently serious breach of a superior rule of law for the protection of individuals.70

3.429

Creating consistency between the test for liability under Article 340(2) TFEU and liability of Member States. The distinction between administrative and legislative acts became untenable following the Brasserie du Pêcheur/Factortame71 judgment. In that case, the Court of Justice ruled, on the basis that the protection of individual rights deriving from EU law cannot vary depending on whether a national authority or an EU authority is responsible for the damage, that there was no reason why the conditions under which a Member State could be liable in damages for a breach of EU law should, in the absence of particular justifications, be any different from the conditions of liability applicable to EU institutions in like circumstances.

3.430

66 F Fines, ‘Etude de la responsibilité extracontractuelle de la Communauté économique européenne’ Bibliothèque de droit international, Librairie générale de droit et de jurisprudence (1990) vol. 101, p. 501. 67 Case C-419/08 P Trubowest Handel and Makarov v Council and Commission [EU:C:2010:147] paras 41–42; see also Case C-146/91 KYDEP v Council and Commission [EU:C:1994:329] para 81; Case T-415/10 Nexans France v Joint Undertaking Fusion for Energy [EU:T:2013:141] paras 179–180. 68 Case T-13/96 TEAM v Commission [EU:T:1998:254] para 27; Case T-489/08 Power-One Italy [EU:T:2011:238] para 56; Case T-444/07 CPEM v Commission [EU:T:2009:227] para 36. 69 E Grabitz, ‘Liability for legislative acts’ (in: Non-contractual Liability of the European Communities ed. by H Schermers, T Heukels and P Mead, Kluwer, The Hague, 1988) 1–11. 70 Joined Cases T-481/ 93 and T-484/93 Vereniging van Exporteurs in Levende Varkens and Others v Commission [EU:T:1995:209]; Joined Cases C-261/78 and C-262/78 Interquell Strärke-Chemie v EEC [EU:C:1982:329]. 71 Case C-46/93 Brasserie du Pêcheur v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte Factortame and Others [EU:C:1996:79].

276 Action for Damages 3.431

The Bergaderm judgment. Consequently, in its judgment in Bergaderm,72 the Court of Justice did away with the distinction between legislative (general) and administrative (individual) acts, choosing instead to concentrate on the amount of discretion enjoyed by the EU institution in question. In doing so, the Court of Justice applied the conditions that it had set down in B rasserie du Pêcheur/Factortame for establishing liability in damages. It follows from Bergaderm that, in order to establish the non-contractual liability of the Union, it must be shown, in addition to the breach of a rule of Union law (cf para 3.432), that that rule confers rights on individuals (cf para 3.434), and also that the breach was sufficiently serious, which is to be determined inter alia in light of the discretion enjoyed by the institution or body (cf para 3.438).73 (ii) Breach of a Rule of Union Law

3.432

Rule of Union law. The term ‘Union law’ should be understood within the meaning of Article 19 TEU. As such, actions for damages may be brought on the basis of a breach of primary and secondary Union law, general principles of law, fundamental rights and international customary law (see also, mutatis mutandis, Subsection 3.1.7.4. Infringement of EU Law in the Context of Actions for Annulment).

3.433

No claim for damages can lie against a provision of the TEU or TFEU. A claim cannot be brought for damage arising out of an act of primary law, such as damage caused as a direct result of a Treaty amendment. The Court of Justice has held that any Treaty which seeks to amend the original Treaty is an act of the Member States and cannot be ascribed to the EU.74 Pursuant to the same principle, it also follows that, although the EU must take all necessary steps to ensure the proper performance of EU law, where the implementation of EU law has been delegated to the Member States, the EU cannot be held liable where a Member State fails to comply with its obligations under EU law75 (cf para 3.408 et seq). (iii) Rules Conferring Rights on Individuals

3.434

Notion. An applicant will only be entitled to recover damages where the rule in question is intended to confer rights on individuals. That condition is met if the rule in question, even if it (principally) concerns interests of a general nature, also protects the individual interests of the persons concerned,76 regardless of the nature and scope of the act alleged to be unlawful, and, in particular, of the question whether the act affects a closed group or a limited number of persons, or whether the rule is procedural or substantive in nature.77

72 Case C-352/98 P Bergaderm and Goupil v Commission [EU:C:2000:361]. 73 Case C-352/98 P Bergaderm and Goupil v Commission [EU:C:2000:361] paras 41–42 and 62. 74 Case C-169/73 Compagnie Continentale France v Council [EU:C:1975:13] para 16; Joined Cases C-31/86 and C-35/86 Levantina Agricola Industrial SA (LAISA) and CPC España SA v Council [EU:C:1988:211] paras 19–22; Joined Cases C-63/72 to C-69/72 Wilhelm Werhahn Hansamühle and Others v Council [EU:C:1973:121] para 8; Case C-353/88 Briantex and Di Domenico v Commission [EU:C:1989:415] para 7; Case T-209/00 Lamberts v European Ombudsman [EU:T:2002:94] para 48; Case T-383/00 Beamglow v Parliament and Others [EU:T:2005:453] para 69. 75 Case C-99/74 Société des Grands Moulins des Antilles v Commission [EU:C:1975:161]. 76 To that effect, see Joined Cases C-5/66, C-7/66 and C-13/66 to C-24/66 Kampffmeyer and Others v Commission [EU:C:1967:31]; Case T-209/00 Lamberts v Ombudsman [EU:T:2002:94] para 87. 77 Case T-341/07 Sison v Council [EU:T:2011:687] paras 47 and 52. It should be noted, however, that the duty to state reasons enshrined in Art 296 TFEU does not constitute a ‘rule conferring rights on individuals’ for the purposes of actions brought pursuant to Art 340(2) TFEU (Case C-119/88 AERPO v Commission [EU:C:1990:231] para 20).

Substantive Requirements for Liability 277 Rule of general application conferring rights on individuals. A classic example of a rule of general application which, nevertheless, conferred rights on individuals arose in the Kampffmeyer case.78 The case concerned a series of German grain dealers who wanted to import maize from France. At the time, the relevant provisions of Community law specified that the applicants required import permits from the German government. In its judgment, the Court of Justice rejected the argument that the applicants could not claim damages because the rule of Community law that had allegedly been infringed was only of general application and was not intended to protect the interests of the applicants. Therefore, in later cases, when determining whether a rule was designed to protect individuals, the Courts adopted a case-by-case approach, based on the objectives to be achieved by the rule in question.79 As such, breaches of the Charter of Fundamental Rights, for example, are generally capable of giving rise to actions for damages under Article 340(2) TFEU.80

3.435

Example: Vreugdenhil II. The test adopted by the Courts in relation to the admissibility of claims based on Article 340(2) TFEU is, in many respects, more liberal than that for actions for annulment brought under Article 263 TFEU.81 However, this does not imply that the criterion under which the infringed rule of Union law must confer rights on individuals is satisfied in every case. The infringed rule must still have as its purpose the protection of individuals. This point was well illustrated in Vreugdenhil II, where the applicant sought to claim damages for losses allegedly caused by a Commission regulation. That regulation had previously been declared invalid on the grounds that the Commission had acted ultra vires by adopting it and thus breached superior norms related to the definition of the Commission’s powers. The Court of Justice refused to award compensation, reasoning that

3.436

the aim of the system of the division of powers between the various [EU] institutions is to ensure that the balance between the institutions provided for in the Treaty is maintained, and not to protect individuals. Consequently, a failure to observe the balance between the institutions cannot be sufficient on its own to engage the [EU’s] liability towards the traders concerned.82

Measures aimed at regulating inter-institutional relations or international relations do not confer rights on individuals. In light of the above principles, the EU Courts have rejected claims

78 Joined Cases C-5/66, C-7/66 and C-13/66 to C-24/66 Kampffmeyer and Others v Commission [EU:C:1967:8] at p. 263. 79 See, eg Case T-271/04 Citymo v Commission [EU:T:2007:128], in which the General Court ruled that the principle of good faith could be regarded as a rule protecting individuals who were in a position to negotiate with the Commission and that by failing to advise the applicant immediately of its decision, in the context of a public procurement process, not to award the contract, the Commission had breached this principle and caused the applicant to lose a serious opportunity to contract with a third party for a period of two months. 80 Case C-578/11 P Deltafina v Commission (Italian raw tobacco cartel) [EU:C:2014:1742]; Case C-467/13 P ICF v Commission (aluminium fluoride cartel) [EU:C:2014:2274]; Case C-58/12 P Groupe Gascogne v Commission (plastic bags cartel) [EU:C:2013:770]; Case C-50/12 P Kendrion v Commission (plastic bags cartel) [EU:C:2013:771]; Case C-243/12 P FLS Plast v Commission (plastic bags cartel) [EU:C:2014:2006]. 81 See Case T-279/11 T & L Sugars and Sidul Açúcares v Commission [EU:T:2013:299] paras 105–112, which concerned standing (cf para 3.215). See also Case T-309/03 Camós Grau v Commission [EU:T:2006:110], which concerned an investigation by the European Anti-Fraud Office into the conduct of Commission employees. While OLAF reports are not reviewable acts (cf para 3.62) and therefore no action for annulment may lie against them, this action for damages was admissible. The General Court held that the requirement of impartiality, to which all the EU institutions are subject in carrying out their tasks, is intended, in addition to ensuring that the public interest is respected, to protect individuals, and confers on them a right to see that the institution complies with the corresponding guarantees. 82 Case C-282/90 Vreugdenhil v Commission (Vreugdenhil II) [EU:C:1992:124] paras 20–21. See also Case C-106/81 Kind v EEC [EU:C:1982:291], in which the Court held that insufficient reasoning – which normally is a ground for illegality – was not a breach of a superior rule for the protection of individuals, and was not therefore sufficient to ground a claim in damages under Art 340(2) TFEU. See also Case C-74/74 CNTA v Commission [EU:C:1975:59].

3.437

278 Action for Damages in respect of provisions specifically intended to organise the division of powers between national authorities and the Commission,83 or which govern the EU’s relationship with the World Trade Organization.84 (iv) Sufficiently Serious Breach – Notion 3.438

Notion. The requirement of a sufficiently serious breach seeks, whatever the unlawful nature of the measure in question,85 to create a balance between two conflicting considerations: on the one hand, the risk of having to bear the losses alleged by applicants must not hinder the ability of the EU institution or body to exercise fully its competences in the general interest (regardless of the general or individual nature of the measure),86 and, on the other hand, third parties must not be left to bear the consequences of flagrant and inexcusable misconduct by the institution or body.87 In this respect, the Court of Justice has defined the ‘sufficiently serious’ breach as meaning a manifest and grave disregard by the institution for the limits of its discretion.88

3.439

Elements considered by the Courts. In determining whether an institution has manifestly and gravely disregarded the limits of its discretion, the EU Courts will essentially have regard to two principal elements: whether the institution has behaved in a manner verging on the arbitrary and whether the consequences of that behaviour exceeded the bounds of the economic risks inherent in the applicant carrying on business in the relevant sector (cf para 3.440 et seq).89 In some cases, the Courts also took into account other elements when examining the question of whether the breach was sufficiently serious, eg the complexity of the assessment carried out by the institution, the presence of an overriding public interest or an excusable error (cf para 3.444 et seq). (v) Sufficiently Serious Breach – Manifest and Grave Disregard for the Limits of Discretion

3.440

The role of discretion. One of the key factors that will determine whether an act constitutes a ‘sufficiently serious breach’ will depend on the level of discretion enjoyed by the relevant

83 Case T-429/05 Artegodan v Commission [EU:T:2010:60] paras 72–75. 84 See Case T-18/99 Cordis Obst und Gemüse Großhandel v Commission [EU:T:2001:95] paras 46 and 51; Case T-174/00 Biret International v Council [EU:T:2002:2] paras 60–64; Case T-69/00 FIAMM and FIAMM Technologies [EU:T:2005:449] paras 108–115. 85 In this respect, the relevant institution’s opinion on the nature of the power concerned is irrelevant (T-178/98 Fresh Marine v Commission [EU:T:2000:240]). 86 Case T-429/05 Artegodan v Commission [EU:T:2010:60] para 54; Case C-312/00 P Commission v Camar and Tico [EU:C:2002:736] para 55; Case C-472/00 P Commission v Fresh Marine [EU:C:2003:399] para 27; Case T-28/03 Holcim (Deutschland) v Commission [EU:T:2005:139] para 48; Case T-155/99 Dieckmann & Hansen v Commission [EU:T:2001:256] para 45. 87 Case T-429/05 Artegodan v Commission [EU:T:2010:60] para 54; Case T-351/03 Schneider Electric v Commission (Schneider III) [EU:T:2007:212] para 125; Case T-212/03 MyTravel v Commission [EU:T:2008:315] para 42. 88 See, eg Joined Cases C-83/76, C-94/76, C-4/77, C-15/77 and C-40/77 HNL v Council and Commission [EU:C:1978:113]; Joined Cases C-116/77 and C-124/77 Amylum v Council and Commission [EU:C:1979:273]. 89 Joined Cases C-116/77 and C-124/77 Amylum v Council and Commission [EU:C:1979:273] para 19–21; Joined Cases C-67/75 to C-85/75 Dumortier Frères and Others v Commission [EU:C:1976:42] paras 21–22; Case C-120/86 Mulder v Minister van Landbouw en Vissereij (Mulder I) [EU:C:1988:213] para 24; Opinion of AG Van Gerven in Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission (Mulder II) [EU:C:1992:34]; Case T-367/03 Yedas Tarim v Council and Commission [EU:T:2006:96] para 60. For an extra-judicial commentary on the concept of a sufficiently serious breach, see also W Van Gerven, ‘Non-contractual liability of Member States, EU Institutions and individuals for breaches of EU law with a view to a common law for Europe’ (1994/6) Maastricht Journal of European and Comparative Law 27–28.

Substantive Requirements for Liability 279 institution. This mirrors the test established by the Court in Brasserie du Pêcheur/Factortame in the context of Member State liability.90 Limited discretion. Where the EU institution or body only has considerably reduced, or even no, discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach.91 This is not, however, automatic.92 Even in a situation of limited discretion, account will need to be taken of the clarity of the rule concerned and the complexity of the situation in which the rule needs to be applied. In essence, this equates to a need to find that the relevant institution or body acted without the requisite level of due care and diligence.93

3.441

Broad margin of discretion. Where the relevant institution or body enjoys a broad margin of discretion, however, it can prove very difficult for an applicant to demonstrate that the institution has manifestly and gravely disregarded the limits of that discretion – even if the act itself has been annulled.

3.442

Example: the milk quota cases. A series of cases that provide a good illustration of the difficulties that can be encountered in seeking damages when the institution concerned has a broad margin of discretion arose following the EU’s attempt to regulate the overproduction of milk. As part of the measures, the EU introduced a scheme under which dairy farmers were paid a premium for agreeing not to market milk for a period of five years. Around 100 dairy farmers took up the offer. During the subsequent five-year period, the EU institutions introduced new measures, one of which was a system of milk quotas, under which farmers were required to pay a special levy on milk produced over and above their quota. The quotas were based on the amount of milk marketed during a year specified in the regulation. The regulation, however, did not make special provision for the farmers who had agreed not to market their milk. When the five-year period came to an end, the farmers applied for quotas so as to be able to begin marketing milk again. However, applying the normal rules under the regulation, they had not produced any milk in the specified year. Their quota of milk production was therefore zero. As such, the farmers were left in a position where they were no longer receiving a premium, and were unable to start marketing milk again because their quota was set at nothing. In proceedings on a preliminary reference, the Court of Justice held that the imposition of a quota system that did not take into account the farmers who had previously agreed to refrain from marketing milk infringed the farmers’ legitimate expectations, and was therefore invalid.94 As a result, the Council adopted another regulation granting the farmers who had ceased production a special reference quantity equal to 60 per cent of the quantity of milk marketed in the 12 months immediately preceding that in which they had given their undertaking. Following a subsequent challenge through a preliminary reference, the Court held that this second regulation was also invalid, on the basis that a reduction of 40 per cent of the farmers’ milk quota infringed their legitimate expectations of being able to recommence their activities following the five-year absence.95 The declaration of the invalidity of the two regulations resulted in a number of claims being brought by farmers seeking compensation from the EU under what is now Article 340(2) TFEU. The first to be

3.443

90 Case 46/93 Brasserie du Pêcheur v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte Factortame and Others [EU:C:1996:79]. 91 Case C-352/98 P Bergaderm and Goupil v Commission [EU:C:2000:361] paras 42–44; Case T-225/99 Comafrica and Dole Fresh Fruit Europe v Commission [EU:T:2001:184] para 134. 92 Case T-333/10 ATC and Others v Commission [EU:T:2014:842] para 63. 93 Case T-28/03 Holcim (Deutschland) v Commission [EU:T:2005:139] para 101. 94 Case C-120/86 Mulder v Minister van Landbouw en Vissereij (Mulder I) [EU:C:1988:213]. 95 Case C-189/89 Spagl v Hauptzollamt Rosenheim [EU:C:1990:450].

280 Action for Damages decided were those brought by the applicants in Mulder II, and hinged on whether the breach was sufficiently serious as to be characterised as manifest and grave.96 In relation to the first regulation, which established the quota system and left the applicants in a position where they could not market milk after the end of the five-year period, the Court ruled that the institutions manifestly and gravely disregarded the limits of their discretionary power by ‘fail[ing] completely, without invoking any higher public interest, to take account of the specific situation of a clearly defined group of economic agents’. The Court considered that the breach was all the more obvious because of ‘the total and permanent exclusion of the producers concerned from the allocation of a reference quantity’, which ‘cannot be regarded as being foreseeable or as falling within the bounds of the normal economic risks inherent in the activities of a milk producer’ when agreeing to cease production for a five-year period.97 With respect to the second regulation introducing the 60 per cent rule, however, while admitting that the rule infringed the legitimate expectations of the producers, the Court concluded that the breach was not sufficiently serious to claim compensation under Article 340(2) TFEU. In this respect, the Court reasoned that, unlike the previous regulation, which made no provision at all for the farmers that had agreed to suspend production, the second regulation expressly took their position into account. As such, while the second regulation might have breached the farmers’ legitimate expectations, the Council did not manifestly and gravely disregard the limits of its discretionary power. As such, the applicants were only entitled to damages for the period between the end of the non-marketing undertaking and the entry into force of the second regulation, which entitled them to a quota of 60 per cent of the quantity of their reference period. (vi) Sufficiently Serious Breach – Other Elements Affecting the Seriousness of the Breach 3.444

Overview. As can be seen from the above, the degree of discretion enjoyed by the relevant institution or body is central to determining whether an applicant is entitled to damages under Article 340(2) TFEU. The extent of the discretion enjoyed by the institution or body concerned is not, however, the only factor that the Courts will consider. Rather, the complexity of the situation and the difficulties in the application or interpretation of the relevant legislation (cf para 3.445), the existence of an overriding general interest98 (cf para 3.446) and whether the error made was intentional or inexcusable (cf para 3.447) may also be taken into account.99

3.445

Complexity. With regard to the complexity of the matter in which the act was taken, this point was well illustrated by the General Court’s ruling in Holcim.100 The case arose out of an action for annulment brought by several applicants, who were manufacturers of construction

96 Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission (Mulder II) [EU:C:1992:217]. See A Arnull, ‘Liability for legislative acts under Article 215(2) EC’ in T Heukels and A McDonnell (eds), The Action for Damages in Community Law (Asser Institute, The Hague, 1997) 129. 97 Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission (Mulder II) [EU:C:1992:217] paras 16–21. 98 Case C-43/72 Merkur Außenhandel v Commission [EU:C:1973:108]; Case C-152/88 Sofrimport v Commission [EU:C:1990:259]; Opinion of AG Van Gerven in Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission (Mulder II) [EU:C:1992:34] para 45. 99 Case C-385/07 P Der Grüne Punkt – Duales System Deutschland v Commission [EU:C:2009:456] paras 181–182; Case C-578/11 P Deltafina v Commission (Italian raw tobacco cartel) [EU:C:2014:1742]; Case C-467/13 P ICF v Commission (aluminium fluoride cartel) [EU:C:2014:2274]; Case C-58/12 P Groupe Gascogne v Commission (plastic bags cartel) [EU:C:2013:770]; Case C-50/12 P Kendrion v Commission (plastic bags cartel) [EU:C:2013:771; Case C-243/12 P FLS Plast v Commission (plastic bags cartel) [EU:C:2014:2006]. 100 Case T-28/03 Holcim (Deutschland) v Commission [EU:T:2005:139].

Substantive Requirements for Liability 281 aterials, against a Commission decision ordering them to pay fines of over 5 million euros for m participating in the cement cartel. The decision was subsequently annulled for a breach of Article 101(1) TFEU inter alia in respect of Holcim.101 The latter brought an action against the Commission under Article 340(2) TFEU seeking to reclaim the costs incurred in bringing the annulment action and in paying the charges of the bank guarantee, which it had preferred to arrange for instead of paying the fine imposed on it by the Commission’s decision. In assessing whether the illegalities contained in the Commission’s decision amounted to a sufficiently serious breach of EU law, the General Court held that regard must be had to the fact that the context in which the decision was taken was particularly complex. It highlighted that the investigation conducted by the Commission had involved a very large number of undertakings and almost the entire European cement industry, that ‘the structure of Cembureau [the European cement association] made the investigation difficult owing to the existence of direct and indirect members’, and that it had been necessary for the Commission to analyse a great number of documents, including the applicant’s specific situation.102 Further, the Commission had to take account of the difficulties in applying the provisions of the Treaty in matters relating to cartels. The result of these factors was that, despite having been annulled, the illegalities contained in the Commission’s decision could not be regarded as amounting to a sufficiently serious breach for the purposes of Article 340(2) TFEU.103 Overriding public interests. An example of a situation in which the Court took into account matters of overriding public interests when determining whether a breach of law was sufficiently serious to entitle an applicant to damages arose in the Dieckmann & Hansen case.104 The action stemmed from a Commission decision prohibiting the importation of fish products from Kazakhstan on the grounds of public health. Following the prohibition, importers who had contracted to import caviar from Kazakhstan shortly before the introduction of the ban brought a claim arguing that the Commission had breached its duty to take into consideration the rights of importers by failing to adopt transitional measures for importers who had already entered into import contracts. The General Court held that the Commission enjoyed a wide, general discretion when dealing with public health matters. In these conditions, the EU could only incur liability if the applicant proved that the Commission manifestly and gravely disregarded the limits on its discretion. The General Court ruled that this was not the case, by taking into account the protection of the health of European consumers as an overriding public interest. As a consequence, it dismissed the action.105

3.446

Excusable error. In situations where the relevant institution enjoys a margin of discretion, Article 340(2) TFEU does not create a situation of strict (ie no fault) liability. As such, a breach that is the result of an excusable error will not be sufficiently serious as to enable an applicant to claim damages.

3.447

Example of an excusable error: Schneider III. An example of a situation in which the Court considered that the Commission had committed an ‘excusable’ error arose in Schneider III. The case formed part of a series of lawsuits that started with a Commission decision declaring

3.448

101 Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others v Commission (cement cartel) [EU:T:2000:77]. 102 Case T-28/03 Holcim (Deutschland) v Commission [EU:T:2005:139] para 114. 103 Case T-28/03 Holcim (Deutschland) v Commission [EU:T:2005:139] paras 116–118. 104 Case T-155/99 Dieckmann & Hansen v Commission [EU:T:2001:256]. 105 Case T-155/99 Dieckmann & Hansen v Commission [EU:T:2001:256] paras 56 and 72.

282 Action for Damages that a merger between Schneider and Legrand was incompatible with the common market (cf para 3.334). In Schneider I,106 the applicant successfully had the Commission decision annulled. Schneider III107 concerned a subsequent claim by the applicant to recover compensation for losses caused by the Commission’s erroneous decision. When determining whether the breach of law committed by the Commission was sufficiently serious as to entitle Schneider to recover damages, the General Court was mindful of the fact that, in its task as competition regulator, the Commission was entrusted with a considerable degree of discretion and that it would be inhibited in the performance of those duties, contrary to the general interest, if the concept of a serious breach was construed as ‘comprising all errors or mistakes which, even if of some gravity, were not by their nature or extent alien to the normal conduct of an institution with the task of overseeing the application of the competition rules’. In making such determinations, the General Court considered that a balance needed to be struck between the interests of the individuals who had suffered loss and the need for the Commission to be able to effectively fulfil its duties. Consequently, the General Court held that a sufficiently serious breach of EU law, for the purposes of establishing the non-contractual liability of the Union, cannot be constituted by failure to fulfil a legal obligation, which, regrettable though it may be, can be explained by the objective constraints to which the institution and its officials are subject as a result of the provisions governing the control of concentrations.108

As such, only the finding that an irregularity would not have been committed in similar circumstances by an administrative authority exercising ordinary care and diligence will result in the EU being held liable in damages.109 (vii) Liability for Lawful Acts? 3.449

No liability in damages for lawful acts. Although a measure need not have been formally declared illegal under Article 263 TFEU for an applicant to be successful in damages, illegality is a precondition for being awarded compensation. Indeed, the Court of Justice has expressly held that, as Union law currently stands, the requirement that an act or omission constitute a breach of Union law in order for an applicant to be entitled to damages under Article 340(2) TFEU excludes the possibility of damages being awarded to compensate for loss suffered as a result of the effects of legal conduct by the institution.110 Two caveats, however, are worth noting in this respect.

3.450

Fundamental rights may require the Union to establish a system of compensation. First, in its ruling in FIAMM, the Court of Justice noted that it was within the Union’s competences to establish systems for the granting of financial compensation to counteract the harmful effects of

106 Case T-310/01 Schneider Electric v Commission (Schneider I) [EU:T:2002:254]. 107 Case T-351/03 Schneider Electric v Commission (Schneider III) [EU:T:2007:212]. 108 Case T-351/03 Schneider Electric v Commission (Schneider III) [EU:T:2007:212] paras 122–123. On the facts, the General Court ultimately concluded that the Commission was liable to compensate Schneider for damages relating to the need for it to resume the merger control procedure following the annulment of the first decision in Schneider I and for two-thirds of the loss sustained by Schneider Electric as a result of the reduction in the transfer price of Legrand SA (cf para 3.334). 109 Case T-333/10 ATC and Others v Commission [EU:T:2014:842] para 63; Case T-429/05 Artegodan v Commission [EU:T:2010:60] paras 59–62; Case T-341/07 Sison v Council [EU:T:2011:687] paras 33 and 35–37; Case T-28/03 Holcim (Deutschland) v Commission [EU:T:2005:139] paras 114–116. 110 Joined Cases C-120/06 P and C-121/06 P FIAMM and FIAMM Technologies v Council and Commission [EU:C:2008:476] paras 164–179.

Substantive Requirements for Liability 283 legislative acts.111 Furthermore, where the measure in question, despite being lawful, constitutes a disproportionate and intolerable interference with rights guaranteed under Union law (such as the right to property and the freedom to pursue a trade or profession), an award of damages under Article 340(2) TFEU may be possible where the Union has failed to set up a regime to compensate individuals for such interference.112 The Court has left open the possibility of the principle of liability for lawful conduct being developed in the future. Secondly, in FIAMM, despite explicitly ruling that, as it currently stands, Union law does not foresee liability in damages for lawful conduct, the Court of Justice did not shut the door to the possibility of such a principle developing in the future.113 In Dorsch Consult,114 the General Court even set out the conditions that would need to be satisfied for such a claim to succeed. The General Court concluded that compensation would only be granted if the harm suffered was deemed to constitute a ‘still subsisting injury’, and where the applicant satisfied three criteria: the applicant must have suffered both (i) ‘special’ and (ii) ‘unusual’ damage, and (iii) the measure giving rise to the alleged damage was not justified by a general economic interest. The Court defined ‘special’ damage as that affecting a particular circle of economic operators in a disproportionate manner in comparison with others. Damage would be ‘unusual’ if the applicant could show that the loss exceeded the limits of economic risks inherent in operating in the sector concerned. On the facts of the case before it, the General Court concluded that the applicant had suffered neither special nor unusual damage.115

3.451

(viii) The Justification for High Thresholds to the Award of Damages The need to ensure that the institutions are not hindered in carrying out their tasks and developing policy. As can be seen from the foregoing, the hurdles that an applicant needs to overcome in order to succeed in an action for damages under Article 340(2) TFEU are significant. As such, very few claims are ever successful. Two principal reasons underlie the strict approach to actions for damages. The first is that the Courts should (and ordinarily do) refrain from substituting their own assessment for the policy choices made by the institutions. Situations in which an institution needs to make policy choices are generally characterised by the measure of discretion enjoyed by the institution concerned. Hence, in damages actions, the EU Courts focus on the degree of discretion exercised by the institution in adopting the measure in question. The second reason is that the exercise of legislative powers will almost always have potential or

111 Joined Cases C-120/06 P and C-121/06 P FIAMM and FIAMM Technologies v Council and Commission [EU:C:2008:476] para 181. See also Joined Cases C-20/00 and C-64/00 Booker Aquaculture and Hydro Seafood [EU:T:2006:167] para 85. 112 Joined Cases C-120/06 P and C-121/06 P FIAMM and FIAMM Technologies v Council and Commission [EU:C:2008:476] paras 183–184. 113 Joined Cases C-120/06 P and C-121/06 P FIAMM and FIAMM Technologies v Council and Commission [EU:C:2008:476] para 169. 114 Case T-184/95 Dorsch Consult v Council and Commission [EU:T:1998:74] para 80. 115 For examples of situations where the EU Courts have assessed whether the alleged damage is special or unusual within the meaning of the Dorsch Consult test, see Case T-196/99 Area Cova v Council and Commission [EU:T:2001:281]; Case T-70/00 Förde-Reederei v Council and Commission [EU:T:2002:34] para 56; Opinion of AG Maduro in Joined Cases C-120/06 P and C-121/06 P FIAMM and FIAMM Technologies v Council and Commission [EU:C:2008:98] (for a comment on this case see A Thies, ‘Case note’ (2006) 43 Common Market Law Review 1145–1168); Case T-279/03 Galileo International Technology and Others v Commission [EU:T:2006:121]; Case T-333/03 Masdar v Commission [EU:T:2006:348]; Case T-388/07 Comune di Napoli v Commission [EU:T:2010:177] paras 184–188; Order of 11 September 2013 in Case T-540/11 Melkveebedrijf Overenk and Others v Commission [EU:C:2014:2118] para 12; Case T-317/12 Holcim (Romania) v Commission [EU:T:2014:782] paras 73–75, 79 and 80; Joined Cases C-12/13 P and C-13/13 P Buono and Others v Commission [EU:C:2014:2284] paras 43, 46 and 64.

3.452

284 Action for Damages actual negative effects on some business sectors or parts of the population. As the Courts have consistently held, ‘the exercise of the legislative function must not be hindered by the prospect of actions for damages whenever the general interest of the Union requires legislative measures to be adopted which may adversely affect individual interests’.116

3.3.7.2. Causation 3.453

Notion. The EU will only be liable to make good objectively foreseeable losses or injuries that have been caused by the EU.117 This requires the applicant to establish a sufficiently direct causal link between the alleged breach and the damage suffered.118 In this respect, it must be established that the conduct of the relevant institution or body is the determining cause of the loss.119

3.454

Direct cause. Whether the damage has been caused directly by one of the institutions or bodies for the purposes of Article 340(2) TFEU is, to a large extent, a question of fact, to be determined on a case-by-case basis, having regard to the relevant circumstances of the case. In general, however, in order for damage to be considered direct, the way in which the damage arose must not be dependent on an intervening outside cause. It must be the acts or omissions of the institution or body that caused the damage. Therefore, the EU will not be liable where the damage would not have arisen but for the occurrence of a subsequent event.120 Similarly, the requirement that the loss must be the direct result of the institution’s conduct means that no action can lie in respect of ancillary loss.121

3.455

Assessing when a direct link exists. When assessing whether such a direct link exists, the EU Courts start from the premise that a comparison needs to be made between the situation brought about by the unlawful EU act in question and the situation that would have existed had the act been adopted legally.122 In many cases, this will require the applicant to demonstrate that, had the breach not occurred, the content of the measure in question would have been different.123 For example, in Schneider III,124 the applicant claimed damages following the annulment of a Commission decision prohibiting a merger to which Schneider was a party. In order to succeed in its claim for damages, the General Court held that Schneider needed to show that, had the Commission not committed a breach, the latter would have cleared the merger. The mere fact that the Commission’s decision had been annulled did not necessarily mean that it was the wrong decision. It could not be assumed that if the Commission had not committed a breach it would have cleared the merger. It was up to the applicant to prove that this was the case. Where the 116 Case C-83/76 HNL v Council and Commission [EU:C:1978:113] para 7; Joined Cases C-120/06 P and C-121/06 P FIAMM and FIAMM Technologies v Council and Commission [EU:C:2008:476] para 121; Joined Cases T-480/93 and T-483/93 Antillean Rice Mills v Commission [EU:T:1995:162] para 200. 117 Case C-5/71 Aktien-Zuckerfabrik Schöppenstedt v Council [EU:C:1971:116]; Case C-4/69 Alfons Lütticke v Commission [EU:C:1971:40] para 10; Case T-184/95 Dorsch Consult v Council and Commission [EU:T:1998:74]. 118 Case T-149/96 Coldiretti and 110 farmers v Council and Commission [EU:T:1998:228] para 101; Case T-178/98 Fresh Marine v Commission [EU:T:2000:240] para 118. 119 Joined Cases C-64/76, C-113/76, C-167/78, C-239/78, C-27/79, C-28/79 and 47/79 Dumortier Frères v Council [EU:C:1982:184] para 21; Case T-168/12 Georgias and Others v Council and Commission [EU:T:2014:781] para 26; Joined Cases T-539/12 and T-150/13 Ziegler and Ziegler Relocation v Commission [EU:T:2015:15] para 60. 120 To that effect, see Opinion of AG Trabucchi in Case C-169/73 Compagnie Continentale v Council [EU:C:1974:135] para 4. 121 Case T-367/03 Yedas Tarim v Council and Commission [EU:T:2006:96] paras 59–60; Case C-497/06 P CAS Succhi di Frutta v Commission [EU:C:2009:273] paras 59–67. 122 Case T-351/03 Schneider Electric v Commission (Schneider III) [EU:T:2007:212] paras 264–265. 123 Case T-252/07 Sungro and Others v Council and Commission [EU:T:2010:17] paras 60–63. 124 Case T-351/03 Schneider Electric v Commission (Schneider III) [EU:T:2007:212] paras 264–265.

Substantive Requirements for Liability 285 applicant fails to discharge this evidential burden, the link between the breach and the loss will be judged too tenuous to be considered direct, and the applicant will not be able to recover the loss. Relevance of the institution’s discretion for causation. The likelihood of proving that a direct link exists between the measure in question and the damage will, therefore, be dependent upon the amount of discretion available to the institution or body. Where the latter have only limited discretion and a limited number of options in the way they come to a decision, it will be reasonably straightforward for the applicant to show what would have happened had the breach not occurred. Where the institution or body enjoys a greater level of discretion, however, and can take a measure in different ways, by considering different factors, it will be difficult for the applicant to satisfy the causation requirements.

3.456

Applicant’s ability to break the causal link. The applicant’s own conduct can have a bearing on whether the loss claimed was directly caused by the EU measure in question. The EU Courts assume that the prudent person will mitigate the loss suffered. Where the applicant has failed to do this, the Courts will hold that his acts have contributed to the loss suffered, and reduce the amount of compensation accordingly.125 Furthermore, possible negligence on the part of the applicant may even break the chain of causation altogether, leaving the applicant without any compensation.126

3.457

Acts of third parties. The need for the loss to have been directly caused by the act of an institution or body means that no other factors, such as intervening acts or omissions of third parties,127 should have caused or aggravated the loss claimed.128 The intervening acts of a third party will not, however, break the chain of causation where the loss results from third party conduct caused by the Union.129

3.458

3.3.7.3. Existence of Damage Notion. With respect to the existence of damage that can be recovered, applicants are only entitled to be compensated for losses that are actual and certain. In this context, ‘loss’ means a reduction in the value of the applicant’s assets as well as the loss in earnings and other benefits.130

3.459

Burden of proof, specifying the damage. The burden of proving that such damage has been suffered lies with the applicant.131 As such, an application seeking compensation for damage

3.460

125 To that effect, see Case 46/93 Brasserie du Pêcheur v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte Factortame and Others [EU:C:1996:79] paras 82–85. 126 Case T-572/93 Odrigitria v Council and Commission [EU:T:1995:131]. 127 Case T-175/94 IPS v Commission [EU:T:1996:102] paras 56–57; Joined Cases T-440/03, T-121/04, T-171/04, T-208/04, T-365/04 and T-484/04 Arizmendi and Others v Commission [EU:T:2009:530] paras 92–93; Case C-419/08 P Trubowest Handel and Makarov v Council and Commission [EU:C:2010:147] para 59; Case T-587/10 Interspeed v Commission [EU:T:2012:355] para 40. 128 Case T-149/96 Coldiretti and 110 farmers v Council and Commission [EU:T:1998:228] para 101; Case T-146/01 DLD Trading v Council [EU:T:2003:344] para 72; Case T-440/09 AAB v Commission [EU:T:2012:269] para 38. 129 Joined Cases C-120/06 P and C-121/06 P FIAMM and FIAMM Technologies v Council and Commission [EU:C:2008:476] paras 183–185. 130 Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission (Mulder II) [EU:C:1992:217] paras 60–94. 131 Case C-611/12 P Giordano v Commission [EU:C:2014:2282] para 36; Case C-243/05 Agraz v Commission [EU:C:2006:708] para 27; Case C-51/81 De Franceschi v Council and Commission [EU:C:1982:20] para 9; Case C-267/80 Birra Wührer and Others v Council and Commission [EU:C:1985:427] para 9; Case C-362/95 P Blackspur DIY and Others v Council and Commission [EU:C:1997:401] para 31.

286 Action for Damages caused by an EU institution or body must state the evidence from which the conduct alleged against the institution by the applicant may be identified; the reasons for which the applicant considers there to be a causal link between the conduct and the damage that he claims to have suffered; and the nature and extent of that damage.132 A general claim for unspecified damages will not, under normal circumstances, be sufficiently concrete for an application to be valid and the claim is therefore liable to be dismissed.133 Similarly, a claim for an amount of damages without any indication of the calculation leading to that amount will also usually be dismissed as insufficiently substantiated.134 3.461

Heads of damage. The EU Courts have previously recognised damages in the form of lost profits (cf para 3.462), losses of future earnings (cf para 3.463) and non-material damage (cf para 3.464).

3.462

Lost profits. In respect of lost profits, the EU Courts are only willing to allow applicants to recover such damages to the extent that the applicant can show that it was legitimately entitled to make the profit and was only prevented from doing so by an unlawful act of the EU.135 An example arose in the CNTA case, which concerned the withdrawal of compensatory amounts on exports of oil seed.136 The Court of Justice ruled that, in fixing the level of compensation to be paid to exporters, consideration needed to be had for the fact that the maintenance of the compensatory amounts was not guaranteed and that the applicants could not legitimately expect to recover the full amount of profits that would have accrued from the contracts. The protection granted by Article 340(2) TFEU extended to the exporters insofar as their legitimate expectations required that they do not suffer loss by reason of the withdrawal of the compensatory amounts. It was, therefore, only the loss flowing directly from the act of the Commission – in this case, the withdrawal of the compensatory amounts – and not the total sum of projected profits that could be recovered by the applicants. The applicants were therefore not entitled to recover the profits that they would have made had the disputed action of the Commission not occurred.

3.463

Future losses. Regarding future losses, such harm can be compensated provided that the damage, even if it cannot be precisely quantified,137 is foreseeable with sufficient certainty. The Court will not allow a claim for future damages, however, where the damage ‘appears to be possible’ or ‘might ensue in the future’. Such a claim would be too doubtful and insufficiently precise.138

3.464

Non-material or moral losses. The Courts have also been willing to award compensation for non-material losses. In Algera, in the context of a staff case with a damage claim, the Court awarded Miss Algera, an EU employee whose appointment had been wrongfully withdrawn, 100 USD in respect of the upheaval and discomfort that the EU action had caused her.139 The Court has also been willing to accept a claim in damages as a result of damage caused to the applicant’s reputation;140 damage caused by a five-year delay in handling a request for recognition of a 132 Case T-64/89 Automec v Commission [EU:T:1990:42] para 73. 133 Case C-5/71 Aktien-Zuckerfabrik Schöppenstedt v Council [EU:C:1971:116] at p. 984; Case T-149/96 Coldiretti and 110 farmers v Council and Commission [EU:T:1998:228] para 173. 134 Case C-401/96 P Somaco v Commission [EU:C:1998:208] para 73. 135 Joined Cases C-5/66, C-7/66 and C-13/66 to 24/66 Kampffmeyer and Others v Commission [EU:C:1967:31]. 136 Case C-74/74 CNTA v Commission [EU:C:1975:59] paras 45–47. 137 Joined Cases C-5/66, C-7/66 and C-13/66 to C-24/66 Kampffmeyer and Others v Commission [EU:C:1967:31] paras 6–8. 138 Case 147/83 Münchener Import-Weinkellerei Herold Binderer v Commission [EU:C:1985:26] paras 19–20. 139 Joined Cases C-7/56 and C-3/57 to C-7/57 Dineke Algera and Others v Common Assembly [EU:C:1957:7] (staff case with a damage claim). See also Case C-25/60 De Bruyn v Common Assembly [EU:C:1962:6] (staff case with a damage claim). 140 Case T-231/97 New Europe Consulting and Brown v Commission [EU:T:1999:146].

Compensation for Damage 287 professional illness;141 and erroneous exclusion from an internal competition.142 In many cases, however, the Courts have simply ruled that the annulment of the contested decision sufficiently repaired any injury to the applicant and, therefore, did not grant damages.143

3.3.8. Compensation for Damage 3.3.8.1. General Notion. The consequence of a successful action for damages is the compensation for damage. Once an applicant has satisfied the Court that all the conditions for liability exist, it is up to the Court to assess whether damages should be awarded and, if so, how much the applicant should receive.

3.465

Types of compensation available. Although, in the vast majority of cases, the applicant in a case brought pursuant to Article 340(2) TFEU will be seeking financial compensation, the EU Courts are not limited to granting only financial compensation. Rather, the Courts have the power to impose any form of reparation that accords with the general principles of non-contractual liability common to the laws of the Member States, including, if it accords with those principles, compensation in kind, such as the granting of an injunction to do or not to do something.144

3.466

3.3.8.2. Quantifying the Damage Putting the applicant in the position it would have been in if the unlawful act had not been adopted. With respect to the quantification of damages, this is a substantive question, going to the merits of the case, which needs to be demonstrated once the Court is satisfied that a form of admissible damage exists.145 The underlying principle when awarding compensation is to put the applicant in, or as close to, the position that he would have been in had the unlawful act not been adopted.146

3.467

Calculating quantum. The quantum of the damage, therefore, is determined by comparing the assets that the person concerned actually possesses with the assets that he or she would notionally possess had the wrongful act in question not occurred. Where an applicant has, or could have, ‘passed on’ any losses suffered (for example, by increasing prices to customers to offset an illegally levied charge), he will not be entitled to an award of damages.147 As such, it appears from the Courts’ judgments that an individual will generally be under an obligation to pass on the loss suffered to the extent that it is objectively reasonable to do so.

3.468

141 Case T-165/89 Plug v Commission [EU:T:1992:27] (staff case with a damage claim). 142 Case T-84/91 Meskens v Parliament [EU:T:1992:103] (staff case with a damage claim). 143 See Joined Cases C-59/80 and C-129/80 Turner v Commission [EU:C:1981:170] paras 73–74 (staff case with a damage claim); Case T-100/98 R Goldstein v Commission [EU:T:1998:252] para 22. 144 Case T-279/03 Galileo International Technology and Others v Commission [EU:T:2006:121] para 63; Case T-88/09 Idromacchine and Others v Commission [EU:T:2011:641] para 81. 145 Case C-51/81 De Franceschi [EU:C:1982:20] para 9; Case C-267/80 Birra Wührer SpA and Others v Council and Commission [EU:C:1985:427] para 9; Case T-478/93 Wafer Zoo [EU:T:1995:92] para 49. 146 Case C-238/78 Ireks-Arkady v Council and Commission [EU:C:1979:203]. 147 Case C-238/78 Ireks-Arkady v Council and Commission [EU:C:1979:203] para 14; see further C Rudden and W Bishop, ‘Gritz and Quellmehl: pass it on’ (1981) European Law Review 243.

288 Action for Damages 3.469

Default interest. With respect to default interest to compensate the applicant for the delay in the institution complying with its legal obligation, such interest is calculated from the date of judgment, not from the date on which the damage was caused.148 The principle behind this is that the extent of the damage is only determined on the date of the judgment. As such, the Court has already taken all claims in interest, up to that date, into consideration.149 Interest is only due, therefore, for the period between the date of judgment by the Court and the date on which the compensation is transferred to the applicant. Default interest will usually be calculated on a simple (as opposed to compound), flat rate basis. As such, a claim for default interest on this basis need not be supported by specific reasons.150 Interest will only be applied on a compound basis following a specific and motivated request by the applicant.151

148 Joined Cases C-27/59 and C-39/59 Campolongo v ECSC High Authority [EU:C:1960:35] paras 19–21. 149 Joined Cases C-64/76, C-113/76, C-167/78, C-239/78, C-27/79, C-28/79 and C-47/79 Dumortier Frères v Council [EU:C:1982:184] para 11. 150 Case T-134/01 Hans Fuchs v Commission [EU:T:2002:246] paras 56–57; Case T-215/01 Calbertson v Commission [EU:T:2004:38] para 90. 151 Case T-160/03 AFCom Management Consultants v Commission [EU:T:2005:107] para 132.

3.4. Staff Cases [written by Viktor Bottka1]

3.4.1. Overview Notion. Staff cases represent an autonomous type of litigation foreseen in Article 270 TFEU, whereby the civil servants of the Union may seek the annulment of decisions or other acts in staff matters adversely affecting them and/or claim damages. The main parties may only be the civil servants as applicants and the institutions or bodies of the EU as defendants,2 while Member States may only be interveners. In essence, this field corresponds to the labour law of the Union. Its existence is justified by the fact that the Union institutions and bodies employ more than 45,000 staff, of which the Commission alone employs more than 23,000.3 Staff cases are direct actions (cf para 4.15) to which the procedural rules presented in Chapter 4.2. Procedure in Direct Actions are applicable.

3.470

Forum. The Court of Justice of the European Union has jurisdiction in staff cases based on Article 270 TFEU. As of 1 September 2016, the General Court hears staff cases at first instance and an appeal is open before the Court of Justice. There have been several changes as regards the forum throughout the ages. Initially, between 1952 and 1988, the Court of Justice was the single forum for staff cases and there was no appeal. From the creation of the Court of First Instance (now called the General Court) in 1988 until 2005, the latter ruled at first instance in all staff cases, and a single level of appeal was available to the Court of Justice. Between 2005 and 2016, the Civil Service Tribunal acted as the first instance court in staff cases (the case number of actions brought before that Tribunal started with ‘F’). During this period, appeals against decisions of the Civil Service Tribunal could be brought before the General Court, and there was no further appeal possibility after that stage. However, the Court of Justice could still conduct, on proposal of the First Advocate General, the special review procedure foreseen in Article 62 of the Statute to verify the legality of the appeal decision of the General Court.4 On 1 September 2016, the Civil Service Tribunal was incorporated into the General Court and ceased to exist. Its functions were taken over by the General Court as of that date. Under the current set-up, for new cases lodged after 1 September 2016, there are only two levels of review, as for any other case brought before the General Court: the latter acts as the first instance court, while the Court of Justice is the appeal court.

3.471

1 Member of the Legal Service, European Commission. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the European Commission. 2 Art 270 TFEU. 3 Figures based on the EU 2018 General Budget, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv: OJ.L_.2018.057.02.0001.01.ENG&toc=OJ:L:2018:057:TOC (see Establishment Plan Staff table on p. 164). 4 See, eg Decision of 9 September 2014 in Case C-417/14 RX Livio Missir Mamachi di Lusignano v Commission [not reported]. ‘RX’ in the case number stands for French ‘réexamen’, which means ‘review’.

290 Staff Cases 3.472

Legal basis. Staff cases are peculiar insofar as the legal basis for bringing actions is not only Article 270 TFEU, but also the relevant provisions in the Staff Regulations5 (cf Section 3.4.2. Legal Basis for Bringing Actions).

3.473

Admissibility. Apart from the general requirements applicable to all direct actions, actions in staff cases must also fulfil the following main conditions to be admissible: i) The action must be brought by the civil servant of the EU (or a related person as specified in the relevant legislation) against the EU institution or body that employs him or her (cf Section 3.4.3. Parties); ii) The pre-itigation procedure has been duly followed (cf Section 3.4.4. Pre-litigation Phase); iii) The Court action was lodged within the applicable time limits and complies with the formal requirements (cf Section 3.4.5. Time Limits and Formal Requirements).

3.474

Substance. The subject matter of staff litigation may be a claim for annulment of an act of an institution or body (including implicitly adopted acts) that adversely affects the applicant and/or a claim for damages. Accordingly, the grounds for annulment and those for establishing the liability for damages are broadly the same as in actions for annulment and in actions for damages, with the notable difference being that any unlawfulness may be relevant for establishing the employer’s liability for damages, not only a ‘sufficiently serious’ breach of a rule of law (cf Section 3.4.6. Subject Matter of Staff Litigation). A particular feature of staff litigation is that only such heads of claim and pleas in law which are related to the complaints made by the applicant during the pre-litigation phase may be raised in the Court action (cf Section 3.4.7. The Rule of C orrespondence). The consequence of a successful action is the annulment of the contested act and/or the award of damages to the applicant, depending on the forms of order sought (cf Section 3.4.8. Result of the Proceedings).

3.475

Nature of staff litigation. While the field of staff cases is autonomous, it is not isolated from other types of litigation before the EU Courts. Although the most relevant case law derives from other staff cases, some case law still infiltrates from and into other fields, especially as regards procedural aspects or general principles applying in all fields of Union law. Since the two types of claims available (request for annulment and for damages) correspond to those that can be raised in actions for annulment and in actions for damages, the case law developed in those fields is mostly transposable, where its application is not excluded by the specific rules laid down in the Staff Regulations. Apart from specific procedural aspects, what also sets this field apart is the approach of the EU Courts in balancing the control of legality with the equitable and human aspects. The principal aim of such cases is to recreate the trust and normal working relationship between the civil servant and the institution or body. The Courts in staff cases often strive to find consensus or compromise between the parties and encourage settlements.

3.4.2. Legal Basis for Bringing Actions 3.476

Article 270 TFEU. Article 270 TFEU (ex Article 236 TEC) lays down the legal basis for bringing actions by EU personnel against EU institutions or bodies: The Court of Justice of the European Union shall have jurisdiction in any dispute between the Union and its servants within the limits and under the conditions laid down in the Staff Regulations of Officials and the Conditions of Employment of other servants of the Union. 5 Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (OJ 1962 P 45, p. 1385), as amended.

Legal Basis for Bringing Actions 291 Staff Regulations. Article 91 of the Staff Regulations6 (to which the Conditions of Employment of Other Servants also refers) further specifies the competence of the EU Courts in the field of staff cases:

3.477

1. The Court of Justice of the European Union shall have jurisdiction in any dispute between the Union and any person to whom these Staff Regulations apply regarding the legality of an act affecting such person adversely within the meaning of Article 90(2). In disputes of a financial character the Court of Justice shall have unlimited jurisdiction. … 5. Appeals under this Article shall be investigated and heard as provided in the Rules of Procedure of the Court of Justice of the European Union.

The scope of the Staff Regulations encompasses all the EU institutions (except the European Central Bank (ECB)), the European External Action Service, the European Economic and Social Committee, the Committee of the Regions, the European Ombudsman and the European Data Protection Supervisor, as well as other EU bodies to which the Staff Regulations apply under the Union acts establishing them.7 The ECB and the European Investment Bank have their own regulations on employment conditions,8 which are interpreted by the EU Courts in an manner analogous to those of the Staff Regulations.9 Exclusive application of Article 270 TFEU in staff cases. The applicant civil servants may not rely on the general Treaty articles on actions for annulment, actions for damages or actions for failure to act when they intend to challenge acts adopted under the Staff Regulations or claim damages in connection with their employment relationship (cf para 3.405). Also, for litigation foreseen in the Staff Regulations, civil servants may not turn to the national judicial systems but must follow the complaint procedure foreseen in those Staff Regulations before bringing an action before the General Court.

3.478

Litigation outside the scope of the Staff Regulations. It is also worth noting that in the case of criminal charges against Union staff or compensation claims for the damage caused by civil servants, the institutions or bodies of the Union initiate the procedure through the national investigatory and judicial systems and need to rely on them. In these cases, there is usually a parallel disciplinary internal procedure under the Staff Regulations, which may lead to decisions taken by the institution’s or body’s appointing authority that are challengeable before the EU Courts. In addition, nothing prevents civil servants from bringing actions before the EU Courts or national courts against EU institutions or bodies in other fields, outside the scope of their employment relationship. For example, a Commission official may act as a complainant in an antitrust case and may challenge before the General Court a decision rejecting his or her complaint, like any citizen, as long as he or she has standing and legal interest. The only limits for such litigation outside the Staff Regulations are the internal ethical codex and the disciplinary rules applying to civil servants, which Union staff must respect even in their other activities.

3.479

6 Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (OJ 1962 P 45, p. 1385), as amended. 7 Arts 1a–1b of the Staff Regulations. 8 Conditions of Employment for Staff of the ECB adopted on 9 June 1998; Staff Regulations of the European Investment Bank adopted on the 1 July 2013. 9 See, eg Order of 18 May 2006 in Case F-13/05 Corvoisier and Others v ECB [EU:F:2006:35] para 25; Case T-37/10 P De Nicola v EIB [EU:T:2012:205] paras 74–81.

292 Staff Cases

3.4.3. Parties 3.480

Applicants: the civil servants. At first instance, applicants may only be civil servants of the EU. Article 91 of the Staff Regulations defines the ‘servants’ of the Union as ‘any person to whom the Staff Regulations apply’. This term covers the officials and civil servants of the Union,10 as well as the other (non-permanent) agents, who have been hired through a contract.11 A separate regime applies to national experts on secondment to the Commission (SNEs), and they are also entitled to initiate a staff case.12 The right to bring staff cases extends not only to the appointed civil servants with established functions, but also to probationary officials (during the initial test phase of their employment), former officials (pensioners, persons on invalidity leave) and candidates who wish to obtain the status of an official (by participating at an entrance examination, also called ‘open competition’). In addition, this judicial avenue is available to any person to whom the Staff Regulations or the Conditions of Employment of Other Servants grant rights on the basis of their relation to a civil servant, such as the heirs or the former spouse of a civil servant. However, certain persons hired through contracts with the institutions, to which national law is applicable, cannot rely on Article 91 of the Staff Regulations to initiate a case (eg local agents, trainees).

3.481

Defendants: institutions or bodies of the EU. Defendants in staff cases at first instance are those entities which apply the Staff Regulations and have civil servants or other agents in their employment. This covers the EU institutions,13 as well as the EU bodies, offices and agencies to which the Staff Regulations apply under the acts establishing them (cf para 3.477).14 (Throughout this book, the term ‘institution or body’ denotes any institution, body, office or agency of the Union within the meaning of Articles 263(1) and 265(1) TFEU, and this definition is also relevant for staff cases brought under Article 270 TFEU. The term ‘EU institution’ is reserved for institutions of the Union listed in Art 13(1) TEU.) It is worth mentioning that, in contrast to actions for annulment

10 This is essentially the permanent staff of the institutions, which may serve until their pension age, once they have been appointed as officials (after an entrance examination). Art 1a of the Staff Regulations defines them as ‘any person who has been appointed, as provided for in these Staff Regulations, to an established post on the staff of one of the institutions of the Union by an instrument issued by the Appointing Authority of that institution’. 11 There are five categories of such agents as defined in the Conditions of Employment of Other Servants: temporary staff, contractual staff, local staff, special advisers and parliamentary assistants. Note that, based on Art 122 of the Conditions of Employment of Other Servants, disputes of local staff are not decided by the Union Courts: ‘Any dispute between the institution and a member of the local staff serving in a third country shall be submitted to an arbitration board on the conditions defined in the arbitration clause contained in the local staff member’s contract.’ Likewise, freelance conference interpreters engaged by the institutions are not entitled to litigate before the EU Courts under Art 270 TFEU (Case C-43/84 Maag v Commission [EU:C:1985:328] para 23). Finally, trainees of the institutions may not be parties in a staff case before the EU Courts; they may only litigate against the institutions before national courts, under the terms of their traineeship contract. 12 The separate regime for SNEs was established by Commission Decision C(2004) 577 of 27 February 2004 (as amended) laying down the rules applicable to national experts on secondment to the Commission, and subsequently by Commission Decision C(2006) 2033 of 1 June 2006. See, eg Case T-284/06 Gualtieri v Commission [EU:F:2006:100]. 13 Art 13 TEU defines these as the European Parliament, the European Council, the Council, the European Commission, the Court of Justice of the European Union, the ECB and the Court of Auditors. Art 1b of the Staff Regulations states that, for the purposes of these Staff Regulations, the following are also treated as institutions of the Union: (i) the European External Action Service (the EEAS); (ii) the European Economic and Social Committee; (iii) the Committee of the Regions; (iv) the European Ombudsman; and (v) the European Data Protection Supervisor. 14 These are defined as ‘agencies’ in Art 1a of the Staff Regulations and cover the ancillary bodies in the institutional system of the Union, such as the European Investment Bank (EIB) and the multitude of agencies listed at https://europa. eu/european-union/about-eu/agencies_en.

Parties 293 and actions for failure to act, which may not be brought against either the Court of Justice of the European Union or the Court of Auditors (except in public procurement cases, cf para 3.78), staff cases may also be initiated against these EU institutions. It should also be noted that, since the defendant must be an institution or body, any dispute between a civil servant and other civil servants or third parties is not actionable under Article 270 TFEU. On the other hand, if damage was caused to the civil servant by another civil servant or a third party, and it occurred by reason of the negligence of the institution or because the institution or body did not provide the assistance due to the civil servant under Article 24 of the Staff Regulations, the action must still be brought against the institution or body. Interveners. The Member States15 and EU institutions other than the defendant16 (privileged interveners, cf para 5.239) may intervene and are admitted automatically, provided that they respect the deadline to intervene. Certain natural persons who can establish an interest in the result of the staff case may also apply to intervene: civil servants in the cases of other civil servants, as well as any person to whom the Staff Regulations or the Conditions of Employment of Other Servants grant rights on the basis of their relation to a civil servant, such as the heirs or the former spouse of a civil servant.17 All applications to intervene (including those filed by privileged interveners) shall be limited to supporting the form of order sought by one of the parties (cf Chapter 5.4. Interventions).

3.482

Parties to appeal cases. At first instance, the applicants may only be the civil servants. However, on appeal, any of the main parties or the interveners at first instance may be an appellant, provided that he has been unsuccessful, in whole or in part, in his submissions. In staff cases, unlike in other fields, an appeal may not be brought by a Member State or an EU institution which did not intervene in the proceedings before the General Court.18

3.483

No class actions. While there is no class action before the EU Courts, an unlimited number of applicants may bring an action in the same application. This is what happened, for example, in the case relating to the so-called ‘Kinnock reforms’ of 2004, where a single action was lodged by 17 applicants.19

3.484

Measures against abusive litigation. While proceedings before the EU Courts are free of charge, civil servants should refrain from causing unnecessary costs to the EU judiciary by abusive litigation. In the case of a particularly litigious civil servant (who brought, until 2018, 263 cases before the EU Courts), the General Court made use of what is now Article 139(a) of the Rules of Procedure of the General Court (GC RoP) and imposed a lump sum sanction of 2000 euros on him.20 A further sanction is the exclusion of a lawyer under Article 55 of the GC RoP, if the General Court considers that his conduct is incompatible with the dignity of the General Court or with the requirements of the proper administration of justice.21

3.485

15 See, eg Case F-77/08 Vicente Carajosa and Others v Commission [EU:F:2010:133], where the applicants were supported by Spain. 16 See, eg the Order of 17 March 2016 in Case F-124/15 Siragusa v Council [EU:F:2016:68]. 17 Order 30 April 2015 in Case F-130/14 Earlie v Parliament [EU:F:2015:45] paras 5–8. 18 Statute, Art 56. 19 Case T-58/05 Centeno Mediavilla and Others v Commission [EU:T:2007:218] paras 75–90, confirmed on appeal in Case C-443/07 P Centeno Mediavilla and Others v Commission [EU:C:2008:767] paras 76–86. 20 Case T-698/13 P Marcuccio v Commission [EU:T:2014:819]. 21 Case F-33/14 Marcuccio v Commission [EU:F:2015:42] para 21.

294 Staff Cases

3.4.4. Pre-litigation Phase 3.486

Rationale. The objective of staff litigation is to confer the right on civil servants to obtain the annulment of an illegal act of an EU institution or body (the ‘act with adverse effect’) and/or to receive compensation for damages caused by the illegal conduct of the latter. Nonetheless, it should be borne in mind that the civil servant, in most cases, wishes to continue to be employed by the institution or body, and both parties have an interest in avoiding unnecessary litigation which may have a negative impact on their relations. Therefore, the Staff Regulations provide for a pre-litigation phase, during which the parties have the opportunity to settle their differences without resorting to a Court action. Further reasons for the pre-litigation phase is to avoid legal costs and possible reputational harm, and not to burden the EU Courts with cases which could be solved through internal mechanisms within the institution or body itself. It is obligatory to follow this procedure before bringing a Court case.

3.487

Internal procedure as a prerequisite to staff litigation – the role of the appointing authority. A strict rule of admissibility in all staff cases is the completion of the previous administrative procedure (pre-litigation phase). That procedure requires that a complaint be submitted to the appointing authority, which is an organ or a person who exercises the employer’s powers within the institution or body in respect of the civil servant. In this regard, Article 90 of the Staff Regulations provides as follows: 1. Any person to whom these Staff Regulations apply may submit to the appointing authority, a request that it take a decision relating to him. The authority shall notify the person concerned of its reasoned decision within four months from the date on which the request was made. If at the end of that period no reply to the request has been received, this shall be deemed to constitute an implied decision rejecting it, against which a complaint may be lodged in accordance with the following paragraph. 2. Any person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act affecting him adversely, either where the said authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations. The complaint must be lodged within three months. The period shall start to run: —— on the date of publication of the act if it is a measure of a general nature; —— on the date of notification of the decision to the person concerned, but in no case later than the date on which the latter received such notification, if the measure affects a specified person; if, however, an act affecting a specified person is such as to affect adversely another person, the period shall start to run in respect of that other person on the date on which he receives notification thereof but in no case later than the date of publication; —— on the date of expiry of the period prescribed for reply where the complaint concerns an implied decision rejecting a request as provided in para 1. The authority shall notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged. If at the end of that period no reply to the complaint has been received, this shall be deemed to constitute an implied decision rejecting it, against which an appeal may be lodged under Article 91.

Article 91(2) of the Staff Regulations makes it clear that the submission of a complaint in the administrative phase is a necessary prerequisite to lodging a Court action: An appeal to the Court of Justice of the European Union shall lie only if: —— the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) within the period prescribed therein, and —— the complaint has been rejected by express decision or by implied decision.

Pre-litigation Phase 295 Requesting the appointing authority to adopt an act if there is none. Under Article 90(1) of the Staff Regulations, if the legal situation of the civil servant is adversely affected by circumstances that result from a conduct or omission attributable to the institution or body but there is no act with adverse effect against which a complaint could be brought, the civil servant must request the appointing authority to take a position in that regard.22 There are no formal requirements as to the request, apart from being directed at the adoption of a specific position with regard to the civil servant in a matter falling under the Staff Regulations and giving sufficient factual elements for the administration to understand the context.23 A further requirement established by the case law is that the request relating to a specific damage or requalification of a contract needs to be made within a reasonable time (on account of legal certainty).24 The appointing authority must notify the person concerned of its reasoned decision regarding the request of the civil servant within four months. If that authority takes a position, it becomes an explicitly adopted act with adverse effect, against which a complaint may be filed. If the appointing authority takes no position within four months, it is regarded as an implicit refusal of the request and constitutes an implicitly adopted act with adverse effect against which a complaint may be filed. The complaint needs to be submitted to the appointing authority within three months from the explicit or implicit adoption of the act with adverse effect. The above rules are the reason why, in staff litigation, the applicant may raise an annulment claim and a damages claim, but cannot request a declaration by the Courts that the institution or body has failed to act (cf para 3.496), since the failure to act is tantamount to an implicitly adopted act with adverse effect, which can be challenged via an annulment claim.

3.488

If there is already an act with adverse effect, a complaint must be filed with the appointing authority. Where the institution or body has already adopted an act adversely affecting the civil servant either on its own initiative or, as explained in para 3.488, in response to the request to act made by the official (including the situation where the act has been implicitly adopted in the absence of any reaction from the appointing authority to the request to act), the official must bring a formal complaint against that act under Article 90(2) of the Staff Regulations within three months from its adoption.25 Acts with adverse effect may be individual acts or acts of general scope affecting the legal situation of the civil servant (cf para 3.498 et seq). Acts of general scope may be subject to a complaint only if the administration has no margin of discretion when applying it.26

3.489

Response to the complaint. The administration has four months to respond to the complaint brought against the act with adverse effect. Failure to respond to the complaint within that deadline amounts to an implicit rejection of the complaint. The response to a complaint needs, in principle, to be reasoned, and it may even modify or supplement the reasoning of the act with adverse effect which has been complained of.27 Even in such a situation, the act with adverse effect remains the contested act in the Court case; the action is not brought against the response to the complaint (for an exception, cf para 3.503).

3.490

22 This step is somewhat similar to the stage where, before bringing an action for failure to act under Art 265 TFEU, the prospective applicant must first invite the Union institution or body to act (cf para 3.349 et seq). 23 This requirement is not met with a simple request for information or by a note submitted by a superior on behalf of the civil servant: see, eg Case C-417/05 P Commission v Fernández Gómez [EU:C:2006:582] paras 37–40. 24 Case T-157/09 P Marcuccio v Commission [EU:T:2010:403] paras 40–44. 25 This deadline is binding. If it is not respected, the Court action will be inadmissible. The Courts verify compliance ex officio. See, eg Case T-261/14 P Walton v Commission [EU:T:2015:110] para 37. 26 Case T-788/16 De Geoffroy and Others v Parliament [EU:T:2018:534] para 35. 27 Case T-585/16 Skareby v SEAE [EU:T:2017:613] para 18.

296 Staff Cases 3.491

A Court action may be brought after the response to the complaint. After the explicit or implicit rejection of the complaint (response to the complaint), the civil servant may bring an action under Article 270 TFEU before the General Court against the act with adverse effect.

3.4.5. Time Limits and Formal Requirements 3.492

The action must be submitted within three months plus 10 days. The application brought under Article 270 TFEU must be lodged with the General Court within three months28 and 10 days (added on account of distance)29 from the notification to the civil servant of the d ecision taken in respect of the complaint (explicit response to the complaint), or, in the absence of a response, from the expiry of the deadline to respond to the complaint (implicit response to the complaint). That rule is a deviation from the shorter (two months and 10 days) time limit applicable to actions for annulment brought under Article 263 TFEU against acts adopted by the institutions or bodies. Article 91(3) of the Staff Regulations contain the following rules regarding time limits: Appeals [to the General Court] shall be filed within three months. The period shall begin: —— on the date of notification of the decision taken in response to the complaint; —— on the date of expiry of the period prescribed for the reply where the appeal is against an implied decision rejecting a complaint submitted pursuant to Article 90 (2); nevertheless, where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired, the period for lodging the appeal shall start to run afresh.

3.493

Formal requirements for the annulment claim. An action must satisfy the general formal requirements that apply to all direct actions (cf Subsection 4.2.2.1. Formal Requirements). By virtue of Article 21(1) of the Statute and Article 76(d) of the GC RoP, the application must state the subject matter of the proceedings, the pleas in law and arguments relied on, and a summary of those pleas in law. The contested act must be annexed to the application.30 As in the case of an action for annulment, the identification of the contested act must be sufficiently clear and precise to enable the defendant to prepare his defence and the Courts to give a ruling, if necessary without other information31 (cf paras 3.217–3.218, cf paras 4.140–4.141).

3.494

Formal requirements for the damages claim. As in the case of actions for damages brought under Articles 268 and 340 TFEU, the claim for damages put forward in a staff case must respect the following requirements. The application must set out in particular the unlawful behaviour which is attributed to the institution or body, the causal link between the behaviour and the damage, and the nature and quantification of the damage itself, even in cases where moral damage is claimed. Each of these points needs to be supported with the evidence available or at least an explanation why no such evidence can be adduced32 (cf paras 3.422, 3.460, 3.463, cf paras 4.142–4.146).

3.495

Information on the pre-litigation procedure. Since the admissibility of the action is also conditional on the regular completion of the pre-litigation stage, the action in a staff case must contain 28 Staff Regulations, Art 91(3). 29 Statute, Art 60. 30 Statute, Art 21(2). 31 Order of 4 March 1993 in Case T-72/92 Benzler v Commission [EU:T:1993:27] para 18; Order of 29 November 1993 in Case T-56/92 Koelman v Commission [EU:T:1993:105] para 19. 32 See E Perillo and V Giacobbo Peyronnel, Statut de la function publique de l’Union européenne, Commentaire article par article (Bruylant, Brussels, 2017) 546. See, eg Case F-54/14 Vainker v Parliament [EU:F:2015:32] para 26.

Subject Matter of Staff Litigation 297 all relevant information in that regard. It must thus specify or annex, where appropriate, the request to adopt an act, the rejection of the request (by either indicating the time of the implicit rejection or annexing the explicit rejection decision, which is the contested act), the complaint and the response to the complaint (in the case of an implicit rejection of the complaint, it must specify the date on which that rejection occurred).

3.4.6. Subject Matter of Staff Litigation 3.4.6.1. General Heads of claim – request for annulment and claim for damages. EU staff cases are a field of administrative labour law. Accordingly, applicants may request the General Court to annul an act adversely affecting them and to grant a claim for damages, both based on Article 270 TFEU. An applicant may submit either one or both of these claims in combination with each other (cf para 4.156). It is important to note that the annulment claim in staff cases also incorporates the Union’s failure to act. That is because Article 90(2) of the Staff Regulations foresees a possibility to submit a complaint stating that the appointing authority failed to adopt a measure prescribed by the Staff Regulations and Article 91(2) thereof provides for the possibility to challenge the express or implied decision rejecting that complaint before the General Court (cf para 3.488). Article 91(1) of the Staff Regulations grants the Court of Justice of the European Union u nlimited jurisdiction in disputes of a financial character. This provision applies to claims by which the applicant requests the General Court to hold the defendant liable and order the latter to pay damages, and also to claims by which the applicant requests the General Court to order the defendant to pay a sum to which the applicant is allegedly entitled pursuant to the Staff Regulations or to any other measure governing the working relations.33

3.496

Autonomy of the two heads of claim and its limits. While the claim for annulment and the claim for damages are in principle distinct and autonomous34 from each other in staff cases, they have to follow certain common rules (especially the pre-litigation procedure) and there are some situations when the inadmissibility of one excludes the other.35 For example, when a claim for damages is closely linked to the claim for annulment and the latter is declared inadmissible, the claim for damages will be inadmissible too, in order to avoid circumvention.36 This line of the case law follows the same logic as the one concerning the interplay between actions for annulment brought under Article 263 TFEU and actions for damages brought under Articles 268 and 340 TFEU (cf para 3.236 in fine).

3.497

3.4.6.2. Claim for Annulment General. Under Article 91(1) of the Staff Regulations, the EU Courts have jurisdiction regarding the legality of an act adversely affecting the public servant. Under settled case law, only measures

33 C-135/06 P Weißenfels v Parliament [EU:C:2007:812] para 65. 34 Case C-9/75 Meyer-Burckhardt v Commission [EU:C:2007:812] paras 10–11. 35 See J Pilorge-Vrancken, Le droit de la fonction publique de l’Union européenne (Bruylant, Brussels, 2017) 281–282. 36 Case T-27/90 Latham v Commission [EU:T:1991:5] para 38: ‘Such claims are inadmissible where an action for compensation seeks reparation exclusively for the consequences of the measure contested in the action for annulment, which has itself been declared inadmissible, or where the sole purpose of the claim for compensation is to make up for “losses of remuneration” which would not have occurred if the action for annulment had been successful.’

3.498

298 Staff Cases producing binding legal consequences liable to affect the applicant’s interests directly and immediately by significantly changing his legal situation constitute acts or decisions which may be the subject of an annulment claim raised in a staff case.37 These rules include two conditions of admissibility: first, the action may only be brought against an act with adverse effect, that is, a legally binding act (cf para 3.499 et seq), and secondly, the act must bring about a change in the legal situation of the applicant (cf para 3.504 et seq). (i) Act with Adverse Effect 3.499

Concept of the act with adverse effect. It follows from the above case law (cf para 3.498) that, as in the case of actions for annulment, only those acts of the institutions or bodies are considered to be reviewable ‘acts with adverse effect’ (‘acte faisant grief’ in French) that are legally binding. The legally binding content is assessed not on the basis of the form of the act, but on its substance, meaning that even a letter or an email that contains a response to a request by the applicant is reviewable,38 in the absence of any formal decision of the appointing authority on the same subject matter. In line with the provisions on the pre-litigation phase (cf para 3.488), implicitly adopted decisions may also have a binding content and be ‘acts with adverse effect’.39 It is important to recall that an action under Article 270 TFEU cannot be immediately brought against such an explicitly or implicitly adopted act with adverse effect; a complaint must first be filed in accordance with the rules on the pre-litigation phase.

3.500

Examples. In the context of staff litigations, the following explicitly adopted measures have been considered, among others, by the Courts40 to be ‘acts with adverse effect’ challengeable by the public servant concerned: staff reports;41 career development reports;42 a decision not to convoke the invalidity committee;43 a decision fixing the total number of points awarded to the official in the context of a promotion exercise;44 a decision adopting the list of promoted officials;45 a decision not to promote an official;46 salary statements;47 a vacancy note containing conditions that exclude the applicant from taking part in the recruitment procedure;48 and a modification of the contractual clauses.49 An example for an implicitly adopted act with adverse effect is where the official requested assistance, under Article 24 of the Staff Regulations, against a perceived moral harassment, but the administration took no action following the request.50

3.501

Preparatory acts are not challengeable. As in the case of actions for annulment (cf para 3.38 et seq), no valid annulment claim may lie against a preparatory measure, since it does not have a binding content that may affect the legal position of the applicant. In staff matters, decisions of

37 Case T-562/93 Obst v Commission [EU:T:1995:181] paras 22–23; Order of 15 January 2009 in Case T-306/08 P Braun-Neumann v Parliament [EU:T:2009:6] para 29. 38 Order of 15 January 2009 in Case T-306/08 P Braun-Neumann v Parliament [EU:T:2009:6] para 39. 39 Case T-154/05 Lo Giudice v Commission [EU:T:2007:322] paras 41–44. 40 See K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, Oxford, 2014) 667–668. 41 Case T-343/04 Tsarnavas v Commission [EU:T:2007:123]. 42 Case F-16/09 de Britto Patricio-Dias v Commission [EU:F:2009:164]. 43 Order of 19 October 2007 in Case F-23/07 M v EMEA [EU:F:2007:181] para 41. 44 Case T-311/04 Buendía Sierra v Commission [EU:T:2006:329] paras 87–94. 45 Case T-311/04 Buendía Sierra v Commission [EU:T:2006:329] paras 87–94. 46 Case T-394/04 Strack v Commission [EU:T:2008:20] para 28. 47 Case T-288/04 Van Neyghem v Comittee of the Regions [EU:T:2007:1] paras 39–41. 48 Case F-82/08 Clarke and Others v OHIM [EU:F:2011:45] para 79. 49 Case F-6/10 Munch v OHIM [EU:F:2011:139] para 53. 50 Case T-154/05 Lo Giudice v Commission [EU:T:2007:322] paras 41–44.

Subject Matter of Staff Litigation 299 the appointing authority are often prepared by a lower-ranking official or by an advisory body.51 The measures taken by the latter are not acts with adverse effects, but are adopted merely in preparation of the final act definitively laying down the position of the appointing authority.52 For instance, a report issued on the official’s work at the end of the probationary period is a preparatory act against which no annulment claim may lie, as the challengeable final act is the decision to appoint the official at the end of the probationary period or not.53 Other examples for preparatory measures include intermediary evaluations in preparation of a career development report;54 a decision not to include an official on the merit list;55 and the opinion of the institution’s medical officer.56 The applicant may seek judicial review of the perceived illegality of such preparatory measures when bringing an action against the final act.57 Confirmatory acts are not challengeable. Acts in which the institution or body merely confirms the content of its previously adopted binding act are confirmatory acts, which are not actionable, since they do not alter the legal position of the applicant.58

3.502

Where the response to the complaint has a different subject matter from that of the act with adverse effect. Where the rejection of the complaint has a different scope from that of the measure against which the complaint was lodged, eg where it contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision, the rejection of the complaint constitutes a measure subject to review by the judicature. The EU Courts will take it into consideration when assessing the legality of the original act with adverse effect or will even regard it as an act adversely affecting the applicant replacing the original act.59

3.503

(ii) Adversely Affecting the Applicant Concept. The second condition for bringing an action that follows from Article 91(1) of the Staff Regulations is that the contested act must adversely affect the applicant. Case law has specified that ‘adversely affecting the applicant’ means that the act is ‘liable to affect the applicant’s interests directly and immediately by significantly changing his legal situation’.60 In the context of staff cases, the concept of being adversely affected thus includes, first, the presence of a legal interest in bringing proceedings, and secondly, the condition that the act must ‘directly and immediately’ change the legal situation of the applicant, which plays a role where the applicant challenges acts of general scope. If the applicant is not adversely affected by the act, the action is dismissed as inadmissible.

3.504

Legal interest in bringing proceedings. The interest in bringing proceedings (interest to act) presupposes that the action must be liable, if successful, to procure an advantage for the party

3.505

51 See K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, Oxford, 2014) 669. 52 Case T-156/08 P R v Commission [EU:T:2009:69] para 49. 53 Case T-156/08 P R v Commission [EU:T:2009:69] para 50. 54 Case T-27/05 Lo Giudice v Commission [EU:T:2007:321] paras 27–30. 55 Case T-311/04 Buendía Sierra v Commission [EU:T:2006:329] paras 96–98. 56 Case F-65/09 Marcuccio v Commission [EU:F:2010:149] para 44. 57 Case T-435/04 Dos Santos v OHIM [EU:T:2007:50] para 51. 58 Case T-154/05 Lo Giudice v Commission [EU:T:2007:322] paras 52–53. 59 Case T-585/16 Skareby v SEAE [EU:T:2017:613] para 18. 60 Case T-562/93 Obst v Commission [EU:T:1995:181] paras 22–23; Order of 15 January 2009 in Case T-306/08 P Braun-Neumann v Parliament [EU:T:2009:6] para 29.

300 Staff Cases bringing it. It must exist at the stage of lodging the action, failing which it will be inadmissible. The interest in seeking annulment must continue until the final decision. If it disappears during the Court proceedings, there will be no need to adjudicate.61 This condition is common to all actions in which the annulment of an EU measure is requested (cf para 3.109 et seq). For instance,62 the applicant has no interest in the annulment of an appointment to a post of another person if he or she is not eligible for appointment.63 Conversely, officials eligible for promotion to a particular grade in principle have an interest in challenging the decisions to promote other officials to that grade.64 An official may also establish an interest where the act, albeit not affecting his grade or his material situation, causes prejudice to his morale and future prospects,65 or to his reputation.66 As a general rule, the interest to act cannot be established if the annulment of the contested act may only bring about the adoption of another decision with identical content in respect of the applicant.67 Conversely, the interest in bringing proceedings is maintained even if the contested act largely lost its effects in respect of the applicant where, without the annulment, the applicant is likely to be the subject of the same purportedly unlawful treatment.68 The case law on interest to act developed in the context of actions for annulment (cf para 3.109 et seq) is, mutatis mutandis, relevant to staff cases as well. 3.506

‘Direct and immediate change’ in the legal situation – challenging acts of general application. Under Article 90(2) of the Staff Regulations, public servants may also seek the annulment of a measure of a general nature (ie an act of general application). The EU Courts’ case law has nonetheless specified that the ‘act adversely affecting the applicant’, which is open to review, means that the act is ‘liable to affect the applicant’s interests directly and immediately by significantly changing his legal situation’.69 Consequently, when challenging an act of general application, the applicant has to show that that act affects his situation directly and immediately. For instance, an action brought against a vacancy notice – an act of general application – was held to be admissible, since it contained conditions which ruled out the candidature of the applicant, thereby directly affecting his situation.70 Conversely, if the act of general application does not affect the situation of the applicant in such a way, he cannot directly challenge that act, but may still bring an action against the individual measure implementing the act of general application in his respect and put forward a plea of illegality regarding the general act. For instance, in Centeno Mediavilla, 17 applicants brought a common action against the decisions classifying each of them in lower grades. The classification decisions implemented the amendment of Article 12(3) of Annex XIII to the Staff Regulations lowering the grades of new officials (known as the Kinnock reform). While the amendment of the Annex was an act of general application which did not affect the applicants directly and immediately, the individual classification decisions did, and in the actions brought against those decisions the applicants could seek the review of the Annex’s legality through a plea

61 Case C-362/05 P Wunenburger v Commission [EU:C:2007:322] para 42. 62 See K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, Oxford, 2014) 671. 63 Case 126/87 Plato v Commission [EU:C:1989:115] paras 18–20. 64 Case F-53/08 Bouillez and Others v Council [EU:F:2010:37] para 80. 65 Case F-51/06 Tesoka v FEACVT [EU:F:2007:108] para 40. 66 Case F-80/08 Wenig v Commission [EU:F:2009:160] paras 33–36. 67 Case F-94/07 Rebizant and Others v Commission [EU:F:2009:122] para 62. 68 Case C-362/05 P Wunenburger v Commission [EU:C:2007:322] paras 54–60, confirming the judgment in Case T-370/03 Wunenburger v Commission [EU:T:2005:271]. 69 Case T-562/93 Obst v Commission [EU:T:1995:181] paras 22–23; Order of 15 January 2009 in Case T-306/08 P Braun-Neumann v Parliament [EU:T:2009:6] para 29. 70 Case 25/77 De Roubaix v Commission [EU:C:1978:100] paras 7–8.

Subject Matter of Staff Litigation 301 of illegality.71 The condition that the effect must be direct and immediate thus plays a similar role in dividing direct review and incidental review of acts of general application72 as the condition of direct concern in the case of actions for annulment (cf para 3.142). (iii) Grounds for Review General. The grounds for annulment listed in Article 263 TFEU may also be relied on in staff cases.73 The legality of the act adversely affecting the applicant is assessed against a superior norm, as explained in the context of actions for annulment (cf Section 3.1.7. Grounds for Review). The most frequent plea in law put forward by applicants is the breach of Staff Regulations. Examples include pleas drawn from breaches of Article 12bis (protection against moral and sexual harassment) and Article 24, which provides for the duty to assist the official.74 The legality of the contested act may also be reviewed in light of the notices and communications issued by the administration75 which give rise to legitimate expectations on behalf of the officials. Furthermore, applicants often rely on general principles of law, such as the principles of good administration, of the protection of transparency, of the protection of legitimate expectations, of good faith, of equal treatment and of non-discrimination. These can be invoked not only against individual decisions, but also in order to challenge the legality of general acts, such as the Staff Regulations or their amendments, since general principles of law are higher up the hierarchy of norms than a Council regulation.76

3.507

The reasoning contained in the response to the complaint is relevant. The legality of the act adversely affecting the official is reviewed on the basis of the reasoning of that act (if there is any). In addition, the response to a complaint needs, in principle, to be reasoned, and it may supplement or amend the reasoning of the act with adverse effect which has been complained of (cf para 3.490). The legality of the act with adverse effect is thus also examined on the basis of the reasoning contained in the response to the complaint.77

3.508

3.4.6.3. Claim for Damages General conditions. In line with the general case law on actions for damages, the award of damages to an EU official in a staff case is also conditional upon the satisfaction of a set of conditions, namely, ‘the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between that conduct and the damage complained of ’.78

3.509

Any breach of law is relevant. The case law has established a rule of increased liability for the Union as an employer. It means that the Union has the obligation to make good damage caused

3.510

71 Case T-58/05 Centeno Mediavilla and Others v Commission [EU:T:2007:218] paras 27–116; confirmed on appeal in Case C-443/07 P Centeno Mediavilla and Others v Commission [EU:C:2008:767]. 72 Other examples for incidental review in staff cases include Case T-135/05 Campoli v Commission [EU:T:2006:366]; Case F-105/05 Wils v Parliament [EU:F:2007:128] para 36 et seq. 73 For instance, misuse of power was argued in Case F-105/05 Wils v Parliament [EU:F:2007:128] paras 99–127. 74 Case T-154/05 Lo Giudice v Commission [EU:T:2007:322] paras 125–149. 75 Case T-154/05 Lo Giudice v Commission [EU:T:2007:322] para 152. 76 Case F-105/05 Wils v Parliament [EU:F:2007:128] para 138. See also the pleas in law put forward in Case T-58/05 Centeno Mediavilla and Others v Commission [EU:T:2007:218]. 77 Case T-585/16 Skareby v SEAE [EU:T:2017:613] para 19. 78 Case T-341/07 Sison v Council [EU:T:2011:687] para 28 and the case law cited; see also Case F-54/14 Vainker v Parliament [EU:F:2015:32] para 26.

302 Staff Cases to its staff by any illegality committed in the capacity of employer, in contrast to the general rules relating to actions for damages brought under Article 268 and 340 TFEU, where it is required to make good only damage caused by a ‘sufficiently serious’ breach of a rule of law79 (cf para 3.438). 3.511

Forms of damage. With respect to the existence of damage that can be recovered, applicants are only entitled to be compensated for losses that are actual and certain. In this context, ‘loss’ means a reduction in the value of the applicant’s assets as well as the loss in earnings and other benefits.80 Compensation for non-material losses may also be granted. In Algera, the Court of Justice awarded to the applicant, whose appointment had been wrongfully withdrawn, 100 USD in respect of the upheaval and discomfort that the employer’s action had caused her.81 The Courts have also been willing to accept a claim in damages caused, for example, by a five-year delay in handling a request for recognition of an occupational illness that occurred as a result of a work activity,82 and an erroneous exclusion from an internal competition.83 In many cases, however, the Courts have simply ruled that the annulment of the contested decision sufficiently repaired any injury to the applicant and, therefore, did not grant damages.84

3.512

Claim for damages may be admissible even if the interest to act to seek annulment has disappeared. The admissibility of the damages claim may be assessed separately from that of the annulment claim. For instance, in Vainker, the applicant sought the annulment of the decision by which another person was appointed to a post. Since he retired before the lodging of the action, he could not show an interest to act as regards the annulment claim, which was dismissed as inadmissible. However, he preserved the interest to seek a judgment on the lawfulness of the appointment decision for the purposes of his damages claim, since the illegalities committed by the defendant in the context of the adoption of that decision allegedly caused both material and moral harm to him.85

3.4.7. The Rule of Correspondence 3.513

The rule of correspondence between the complaint and the Court action. The rule of correspondence is peculiar to staff cases.86 It is guided by the principle that a settlement between the parties in the procedure before the EU Courts is rendered more difficult if an aspect was not raised before the litigation. According to this rule, if a plea raised before the EU Courts is not to be declared inadmissible, it must, in principle, have already been raised in the context of the prelitigation procedure, so that the administration is in a position to know the criticisms which the person concerned makes against the contested decision. Its exact meaning has evolved through

79 Case T-143/09 P Commission v Petrilli [EU:T:2010:531] paras 46–48. 80 Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission (Mulder II) [EU:C:1992:217] paras 60–94. 81 Joined Cases C-7/56 and C-3/57 to C-7/57 Dineke Algera and Others v Common Assembly [EU:C:1957:7] (staff case with a damage claim). See also Case 25/60 De Bruyn v Common Assembly [EU:C:1962:6] (staff case with a damage claim). 82 Case T-165/89 Plug v Commission [EU:T:1992:27]. 83 Case T-84/91 Meskens v Parliament [EU:T:1992:103]. 84 See, eg Joined Cases C-59/80 and C-129/80 Turner v Commission [EU:C:1981:170] paras 73–74. 85 Case F-54/14 Vainker v Parliament [EU:F:2015:32] para 25. 86 Albeit it is reminiscent of some similar arrangements in appeals and in the types of proceedings which include a prelitigation phase. See, eg Section 3.5.7 on the connection with the pre-litigation phase in intellectual property cases.

Result of the Proceedings 303 the case law,87 and the current trend is one of interpreting this rule strictly.88 One exception is that an applicant may raise a plea of illegality for the first time in an action despite the correspondence rule:89 for a plea of illegality to be admissible, the only requirement is that the general measure claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action for annulment is concerned and that there must be a direct legal connection between the contested individual decision and the general measure in question.90

3.4.8. Result of the Proceedings 3.4.8.1. Claim for Annulment Grounds for annulment. The grounds for annulment in staff cases brought under Article 270 TFEU are the same as in the case of actions for annulment brought under Article 263 (cf Section 3.1.7. Grounds for Review). If the EU Courts find that the act adopted by the defendant in respect of the civil servant breaches a superior EU norm (cf para 3.507), the act is annulled.

3.514

Effects of the annulment and proportionality. The effects of the annulment of an illegal act further to an action brought under Article 270 are similar to the result of a successful action for annulment brought under Article 263 TFEU. The case law presented in Section 3.1.8. Consequences of Annulment is applicable, mutatis mutandis. The main rule is the ex tunc eradication of the illegal act (with retroactive effect) as if it had never been adopted. As in the context of actions for annulment, the EU Courts may decide to maintain the effects of an illegal act until the adoption of a replacement act, which is usually done in the case of general measures such as regulations.91 Moreover, the EU Courts may decide not to annul an unlawful legal act for proportionality reasons, in order to avoid undue effects on third parties. This solution may well be chosen where the litigation relates to a choice between persons (establishment of a limited reserve list in an entrance examination, promotions, nominations to a specific post, etc). In these situations, the Courts apply a case-by-case examination,92 considering the nature of the irregularity (procedural or substantive defect), the balance of the interests involved and the interests of the illegally promoted official.93 If the act is not annulled by reason of the impact on the legal situation of third parties, the successful applicant may still be entitled to receive compensation for moral and material damage. The damages claim may only be brought under Article 270 TFEU (cf para 3.478), either in the same action as the claim for annulment or in a separate action.

3.515

87 A plea in the complaint may be developed in the application with additional arguments (Case T-476/11 P Commission v Moschonaki [EU:T:2013:557] para 73), the legal basis relied on may be adapted in the application (Case T-476/11 P Commission v Moschonaki [EU:T:2013:557] para 85), any new element in the motivation of the rejection of the complaint may be challenged for the first time before the EU Courts (Case T-476/11 P Commission v Moschonaki [EU:T:2013:557] para 86) and if the annulment of an act was put forward in the complaint, the Court application may add a claim for damages in that regard (Case T-401/11 P Missir Mamachi di Lusignano v Commission [EU:T:2014:625] para 95). 88 While the Civil Service Tribunal’s initial interpretation was permissive (see Case F-45/07 Mandt v Parliament [EU:F:2010:72] para 119), the General Court has rendered it more strict (Case T-476/11 P Commission v Moschonaki [EU:T:2013:557] para 71). 89 Case F-128/12 CR v Parliament [EU:F:2014:38] para 32; Case T-787/14 P ECB v Cerafogli [EU:T:2016:633] para 47. 90 Case F-105/05 Wils v Parliament [EU:F:2007:128] para 36. 91 See, by analogy, Case C-40/10 Commission v Council [EU:C:2010:713] para 95. 92 Case F-53/08 Bouillez and Others v Council [EU:F:2010:37] paras 84–90. 93 See J Pilorge-Vrancken, Le droit de la fonction publique de l’Union européenne (Bruylant, Brussels, 2017) 299–301.

304 Staff Cases 3.516

Readoption after annulment. The ultimate result of annulment depends to a great extent on the grounds for annulment and on the question whether the adoption of the act was actually justified in spite of the illegalities found. Where the act has been annulled on substantive grounds, the institution or body may abandon the intent of adopting an act with a similar operative part, or change its appraisal and the operative part in the replacement act. Conversely, where the act has been annulled on the basis of, for example, a procedural flaw or insufficient reasoning, the institution or body may adopt a measure with identical content after a repeated procedure which is correctly conducted (cf para 3.321).

3.4.8.2. Claim for Damages 3.517

Any illegality committed may justify the damages claim. Unlike in the context of actions for damages, in which the Union’s liability is restricted to a ‘sufficiently serious’ breach of a rule of law (cf para 3.438), in staff cases brought under Article 270 TFEU, the Union has the obligation to make good damage caused to its staff by any illegality committed in its capacity as employer.94

3.518

Compensation for damage. The case law on the compensation for damage developed in the context of actions for damages brought under Articles 268 and 340 TFEU is applicable to staff cases (cf Section 3.3.8. Compensation for Damage).

94 Case

T-143/09 P Commission v Petrilli [EU:T:2010:531] paras 45–49.

3.5. Intellectual Property Cases [written by Viktor Luszcz1]

3.5.1. Overview Notion. Intellectual property cases represent an autonomous type of litigation whose legal basis is foreseen in the EU’s intellectual property regulations,2 which grant jurisdiction to the EU Courts on the basis of Article 262 TFEU. A party adversely affected by a decision of the Boards of Appeal of the EU Intellectual Property Office (EUIPO) or of the Community Plant Variety Office (CPVO) may bring an action before the General Court and seek the annulment and the alteration of the EUIPO’s decision, or the annulment of the CPVO’s decision. These proceedings are rather similar to actions for annulment; however, the alteration claim, the position of the other party to the proceedings before the Boards of Appeal (who may become an intervener in the Court case), as well as the connection with the pre-litigation phase (the procedure before the Boards of Appeal) are peculiar features. The result of a successful Court action is the annulment, or the annulment and the alteration of the contested decision. Intellectual property cases are distinct from direct actions.3 The applicable procedural rules are presented in Chapter 4.3. Procedure in Intellectual Property Cases.

3.519

The EU’s powers regarding intellectual property rights. Intellectual property consists of industrial property rights (essentially patents, trade marks, design rights), copyright and a few sui generis rights, such as plant variety rights and topographies for semiconductors. Since intellectual property rights grant monopoly rights for a given territory, which were originally national in scope (bar copyright, which does not require registration), it has been a prime objective of the Union to establish EU-wide protection by creating unitary rights, in order to avoid the partitioning of the common market along national borders. In 1994, the Office for Harmonization in the Internal Market (OHIM) was set up in Alicante (Spain) as a Community agency, and obtained the competence to register Community trade marks (now EU trade marks). In 2001, the OHIM was also granted the power to register Community design rights. The unitary character of EU trade marks and design rights means that their territorial scope encompasses the entire European Union; they cannot be divided, that is, cancelled, transferred or surrendered for some parts of the EU only.4 In 2016, the OHIM changed its name to EU Intellectual Property Office (EUIPO). Furthermore, in 1994, the Community Plant Variety Office was established in Angers (France). It also has the status of an EU agency and has the competence to register plant variety rights, which are valid across the territory of the EU and are also unitary in character. In contrast, to date,

3.520

1 Partner, Danubia Legal – Luszcz Law Firm. Attorney at law specialising in European and Hungarian competition and intellectual property law, member of the Budapest Bar. Previously worked 11 years as a référendaire at the General Court of the EU. 2 Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1) (EU Trade Mark Regulation); Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1) (Community Design Regulation); Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1) (Community Plant Variety Regulation). 3 GC RoP, Art 1(2)(i); GC RoP, Title IV ‘Proceedings related to intellectual property rights’. 4 Art 1(2) of the EU Trade Mark Regulation; Art 1(3) of the Community Design Regulation.

306 Intellectual Property Cases there has been no unitary patent which would be valid throughout the whole territory of the EU (cf para 3.523). 3.521

Actions brought against the EUIPO in trade mark and design cases. The EUIPO registers EU trade marks under the recently recast EU Trade Mark Regulation (Regulation (EU) 2017/1001), applicable as of October 2017,5 and Community design rights under the Community Design Regulation (Regulation (EC) No 6/2002). The most frequent type of litigation is where the EUIPO registers a right and a competitor of the trade mark or design applicant challenges that decision, or where the EUIPO refuses registration, in which case the applicant may seek review. In both situations, an appeal must first be brought against the first instance decisions of the competent division of the EUIPO before the Boards of Appeal of the EUIPO. The six Boards of Appeal of the EUIPO form a body that is organisationally independent from the rest of that office. If the decision of the relevant Board of Appeal is unfavourable for a party, he may bring an action before the General Court. Judicial review by the EU Courts is provided for in the EU Trade Mark Regulation and the Community Design Regulation (cf para 3.530). In 2018, 301 intellectual property cases were brought before the General Court,6 the vast majority concerning trade marks (three cases had design rights as their subject). Trade mark litigation thus represents a large part of the General Court’s workload.7

3.522

Actions brought against the CPVO in plant variety cases. The CPVO grants community plant variety rights under the Community Plant Variety Regulation (Regulation (EC) 2100/94). Appeals are modelled after the system foreseen in the EU Trade Mark Regulation: after the first instance decision of the CPVO, appeals may be brought before the CPVO’s single Board of Appeal, and further appeals against a decision of the Board of Appeal may be brought before the EU Courts.8 To date, only six actions regarding plant variety rights have been brought before the General Court,9 that is, fewer than one per year. The present chapter will thus focus on actions brought against the EUIPO.

3.523

The EU has no power to grant patents. It is a fundamental feature of the European Union’s intellectual property system that the EU’s intellectual property office, the EUIPO, has no competences regarding the grant of patents. One of the reasons is that the European Patent Office (EPO) had already been established, in 1977, two decades before the creation of the EUIPO’s predecessor, the Office for Harmonisation in the Internal Market (OHIM). The EPO is a public international organisation in its own right and is therefore independent from EU institutions. It was created with the European Patent Convention of 1973 (EPC) by its contracting States to grant patents which may then, by further separate acts by national industrial property offices, be validated in some or all of the contracting States, as selected by the patentee. The 38 States currently contracting to the EPC include 10 non-EU countries. It is foreseen to create unitary patent protection valid for the territory of several EU Member States through regulations10 adopted in the framework of 5 Art 6 of the EU Trade Mark Regulation. 6 2018 Annual Report of the Court of Justice of the European Union, p. 44. 7 The 2017 Annual Report of the Court of Justice of the European Union (p. 38) also mentions that in 2017, 298 intellectual property cases were brought before the General Court. 8 Art 73 of the Community Plant Variety Regulation. 9 For examples, see Case T-767/14 Boomkwekerij van Rijn-de Bruyn v CPVO [EU:T:2017:494]; Case T-187/06 Schräder v CPVO [EU:T:2008:511]. 10 Regulation (EU) No 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection (OJ 2012 L 361, p. 1); Council Regulation (EU) No 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements (OJ 2012 L 361, p. 89).

Overview 307 enhanced cooperation. In this new system, patents granted by the EPO could be centrally validated with a single act for all the EU Member States participating in the Unitary Patent System, created via enhanced cooperation. The EU Courts will, however, obtain no power to review the legality of the decisions of the EPO’s Boards of Appeal (cf para 3.531). Forum. Actions against the decisions of the Boards of Appeal of the EUIPO and of the CPVO must be brought before the General Court. An unlimited right to appeal against the decisions of the General Court before the Court of Justice existed until April 2019; however, further to an amendment of the Statute,11 a filtering mechanism has been put in place. As of 1 May 2019, the Court of Justice may decide on whether it allows the appeal to proceed or not (cf para 3.594).

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The action before the General Court and the appeal before the Court of Justice have a suspensory effect. Under Article 71(3) of the EU Trade Mark Regulation, the decisions of the EUIPO’s Boards of Appeal shall take effect only as from the date of expiry of the time limit to bring an action before the General Court, or, if an action has been brought, as from the date of dismissal of such action or of any appeal filed with the Court of Justice against the decision of the General Court. Article 60(3) of the Community Design Regulation contains similar rules. These provisions further differentiate intellectual property cases from actions for annulment, as the latter actions have no suspensory effect (cf para 3.07).

3.525

Legal basis. Intellectual property cases are peculiar insofar as the legal basis for bringing actions is contained in the EU’s intellectual property regulations (cf Section 3.5.2. Legal Basis for Bringing Actions).

3.526

Admissibility. The main conditions for admissibility of actions in intellectual property cases are as follows:

3.527

i) The action must be brought by a party to the proceedings before the Boards of Appeal; the action must be directed against a decision of a Board of Appeal (not against a decision of a first instance department); that decision must affect the applicant adversely; the action as such must be brought against the EUIPO or the CPVO as defendant (cf Section 3.5.3. Parties); ii) The Court action was lodged within the applicable time limits and complies with the formal requirements (cf Section 3.5.5. Time Limits and Formal Requirements). Substance. The applicant may raise claims seeking the annulment of the contested decision, or the annulment and the alteration thereof (cf Section 3.5.6. Subject Matter of Intellectual Property Litigation). The terms of the litigation are nonetheless fixed in the proceedings before the Boards of Appeal (cf Section 3.5.4. Pre-litigation Phase and Section 3.5.7. Connection with the Pre-litigation Phase). The grounds for review are broadly the same as in the case of actions for annulment, the alteration power being a specific feature though (cf Section 3.5.8. Grounds for Review). The consequence of a successful action is that the contested decision is annulled, or annulled and altered, and the EUIPO or the CPVO must adopt, as a rule, a new decision, taking into account the content of the judgment (cf Section 3.5.9. Result of the Proceedings).

11 Regulation (EU, Euratom) 2019/629 of the European Parliament and of the Council of 25 April 2019 (OJ 2019 L 111, p. 1).

3.528

308 Intellectual Property Cases

3.5.2. Legal Basis for Bringing Actions 3.529

Article 262 TFEU. Under Article 262 TFEU (ex Article 229a TEC), jurisdiction can be conferred upon the Court of Justice of the European Union in acts of secondary EU legislation in the field of intellectual property: Without prejudice to the other provisions of the Treaties, the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament, may adopt provisions to confer jurisdiction, to the extent that it shall determine, on the Court of Justice of the European Union in disputes relating to the application of acts adopted on the basis of the Treaties which create European intellectual property rights. These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements.

3.530

The IP Regulations. The EU Trade Mark Regulation,12 the Community Design Regulation13 and the Community Plant Variety Regulation14 (hereinafter, in this chapter, the IP Regulations) contain the detailed rules on the adoption of decisions regarding the registration or the grant as well as the cancellation of Union intellectual property rights. They also flesh out the provisions of Article 262 TFEU by creating sui generis judicial avenues for challenging the said decisions of the EUIPO and the CPVO. Article 72 of the EU Trade Mark Regulation15 specifies the rules regarding judicial review against decisions of the EUIPO’s Boards of Appeal in respect of EU trade marks as follows: Actions before the Court of Justice 1. Actions may be brought before the General Court against decisions of the Boards of Appeal in relation to appeals. 2. The action may be brought on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the TFEU, infringement of this Regulation or of any rule of law relating to their application or misuse of power. 3. The General Court shall have jurisdiction to annul or to alter the contested decision. 4. The action shall be open to any party to proceedings before the Board of Appeal adversely affected by its decision. 5. The action shall be brought before the General Court within two months of the date of notification of the decision of the Board of Appeal. 6. The Office shall take the necessary measures to comply with the judgment of the General Court or, in the event of an appeal against that judgment, the Court of Justice.

The power of the EU Courts to review decisions of the EUIPO’s Boards of Appeal regarding Community design rights is provided for in Article 61 of the Community Design Regulation. The rules correspond to the above prescriptions contained in Article 72 of the EU Trade Mark Regulation. As to actions against decisions of the CPVO’s Board of Appeal, Article 73 of the

12 Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1). 13 Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1). 14 Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1). 15 The 2017 EU Trade Mark Regulation was adopted via the ordinary legislative procedure governed by Art 289 TFEU. As regards the coherence with Art 262 TFEU, which requires that jurisdiction be conferred upon the Court of Justice of the European Union by an act unanimously adopted by the Council after consulting the Parliament, it should be noted that the jurisdiction of the EU Courts was established in Regulation (EC) No 40/94 of the Council of 20 December 1994 on the Community trade mark (OJ 1994 L 11, p. 1), which was indeed adopted by the procedure foreseen in what is now Art 262 TFEU.

Parties 309 Community Plant Variety Regulation contains similar rules, with the notable difference being that the power to alter a decision of the Board of Appeal of the CPVO by the EU Courts is not foreseen in this regulation.16 European patents – only preliminary references foreseen. It should be noted that the term ‘European intellectual property rights’ is used in Article 262 TFEU (cf para 3.529). The FEU Treaty thus allows the conferral of jurisdiction upon the EU Courts in the field of European patents. However, the Agreement on a Unified Patent Court (UPCA)17 makes it clear that the sole power that the Court of Justice of the European Union will have within the framework of the Unified Patent System is to answer preliminary references made by the Unified Patent Court under Article 267 TFEU, whereby the latter court will act as a national court common to the Member States:

3.531

UPCA Article 21 Requests for preliminary rulings As a court common to the Contracting Member States and as part of their judicial system, the [Unified Patent Court] shall cooperate with the Court of Justice of the European Union to ensure the correct application and uniform interpretation of Union law, as any national court, in accordance with Article 267 TFEU in particular. Decisions of the Court of Justice of the European Union shall be binding on the Court.

The Court of Justice of the European Union will thus receive no power to review the legality of decisions of the Boards of Appeal of the EPO, in contrast to the review of the decisions of the Boards of Appeal of the EUIPO. Nor will the Unified Patent Court obtain powers to review the legality of the decisions of the Boards of Appeal of the EPO, since its competences are limited to the revocation of already granted European patents and to ruling in infringement actions and related civil law litigation.18 The only quasi-judicial instance where a decision of the Boards of Appeal of the EPO can be challenged is the Enlarged Board of Appeal of the EPO.19

3.5.3. Parties 3.5.3.1. The Defendant Offices The action must be brought against the EUIPO or the CPVO. While, under the IP Regulations, ‘actions may be brought before the General Court against decisions of the Boards of Appeal’ (cf para 3.530), the action itself must be brought against the EUIPO or the CPVO, not against the Board of Appeal that issued the contested decision. To dissipate all doubt, Article 172 of the Rules of Procedure of the General Court (GC RoP) provides expressly in this regard that ‘The application shall be made against the Office to which the Board of Appeal which adopted the contested decision belongs, as defendant’. It follows that no valid action can be brought against a Board of

16 In addition, Art 74 of the Community Plant Variety Regulation foresees a direct appeal to the EU Courts regarding CPVO decisions that grant exploitation rights to third persons (Arts 29 and 100(2) of the Regulation). 17 Agreement on a Unified Patent Court (OJ 2013 C 175, p. 1). 18 Art 32 of the Agreement on a Unified Patent Court. 19 Under Arts 22(1)(c) and 121a of the European Patent Convention, the Enlarged Board of Appeal has the power to decide on petitions for review of decisions of the Boards of Appeal. The Unified Patent Court will thus offer judicial remedy, via the revocation procedure, to the situation where the EPO wrongly granted a patent, but there is no planned judicial remedy regarding the situation where the EPO wrongly refused to grant a patent.

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310 Intellectual Property Cases Appeal or any division of the EUIPO. The defendant office (EUIPO or CPVO) must be clearly indicated in the action.

3.5.3.2. Applicants 3.533

Party to the proceedings before a Board of Appeal. While actions for annulment governed by Article 263 TFEU may be brought by any person who has standing and interest to act as regards seeking the annulment of the EU act at issue, the right to bring an intellectual property case is limited to ‘any party to proceedings before the Board of Appeal adversely affected by its decision’.20 Judicial review is thus only available to a party who brought an appeal before a Board of Appeal of the EUIPO or the CPVO, or was the other party in the proceedings before the Boards of Appeal of the EUIPO in an inter partes procedure.

3.534

Legal interest to act. The IP Regulations expressly provide that a party to proceedings before the Boards of Appeal only has the right to challenge the decision of the latter before the EU Courts if he is adversely affected by that decision.21 This provision reflects the concept of legal interest in bringing proceedings, examined in detail in the context of actions for annulment (cf para 3.109 et seq). It seems that, in respect of applicants, the General Court prefers to apply the horizontal case law related to the interest to act, instead of relying on the specific provisions contained in the IP Regulations regarding the concept of being ‘adversely affected’ by the contested decision. Under settled case law, an applicant’s interest in bringing proceedings constitutes the essential prerequisite for any legal proceedings and must, in the light of the purpose of the action, exist at the time at which the action is brought, failing which it will be inadmissible. The legal interest in bringing proceedings presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it.22 Examples include Lufthansa AirPlus (airpass.ro), in which the General Court considered that Lufthansa, the applicant, had interest to act to bring an action against a decision of a Board of Appeal in which the latter ruled partially against it, by refusing to limit the scope of a trade mark applied for by Mareea Comtur. The mere fact that, in a parallel case brought by a third party before the Opposition Division of the EUIPO, that Division issued a decision which restricted the scope of the trade mark applied for by Mareea Comtur, in the same way as if Lufthansa had been successful before the Board of Appeal, did not remove the interest of Lufthansa to bring an action against the decision of the Board of Appeal in question. The interest to bring an action before the General Court had to be examined only in light of the contested decision. Even a possibly more beneficial ruling by the General Court on costs incurred before the EUIPO could be relevant for the appraisal of the interest to act.23 The condition ‘adversely affected by the decision’ was, however, examined in other cases where the General Court looked into the intervener’s interest to raise a cross-claim (cf para 3.541).

20 Art 72(4) of the EU Trade Mark Regulation; Art 61(4) of the Community Design Regulation; Art 73(3) of the Community Plant Variety Regulation. 21 Art 72(4) of the EU Trade Mark Regulation; Art 61(4) of the Community Design Regulation; Art 73(3) of the Community Plant Variety Regulation. 22 Case T-671/17 Turbo-K International v EUIPO – Turbo-K (TURBO-K) [EU:T:2019:13] para 90; Case T-684/13 Copernicus-Trademarks v OHIM – Bolloré (BLUECO) [EU:T:2015:699] paras 27. 23 Case T-14/15 Lufthansa AirPlus Servicekarten v EUIPO – Mareea Comtur (airpass.ro) [EU:T:2016:622] paras 18–25. The General Court referred to the case law developed in actions for annulment – Case T-499/12 HSH Investment Holdings Coinvest-C and HSH Investment Holdings FSO v Commission [EU:T:2015:840] para 24; Order of 30 April 2015 in Case T-250/14 EEB v Commission [EU:T:2015:274] para 15.

Parties 311 No interest to act if the EUIPO is bound to readopt a decision with the same operative part. In the TDI case, the General Court ruled that Audi, the applicant, had no legitimate interest in the annulment of a decision on the ground of a procedural defect or the breach of the duty to state reasons where the annulment of the decision could only lead to the adoption of another decision identical in substance to the decision annulled,24 essentially because a part of the contested decision unaffected by the alleged flaw was in itself sufficient to underpin the operative part of the contested decision (cf para 3.317, where the operative part is underpinned by several autonomous pillars of reasoning).

3.535

Replacement of a party in case of transfer of an IP right. In a new provision drawing on pre-existing case law,25 Article 174 of the GC RoP of 2015 prescribes that

3.536

Where an intellectual property right affected by the proceedings has been transferred to a third party by a party to the proceedings before the Board of Appeal of the Office, the successor to that right may apply to replace the original party in the proceedings before the General Court.

This provision allows the new owner of the intellectual property right to replace the previous owner as either applicant or intervener in the proceedings before the General Court. The replacement must be requested by a separate document, whose formal requirements are specified in Article 175 of the GC RoP. As with other procedural documents, the request for replacement must also be filed by a lawyer who is entitled to represent the party before the EU Courts.26 The other party may submit observations. The decision on the application for replacement is issued in the form of a reasoned order27 of the President28 or is included in the decision closing the proceedings. The successor to the party who is replaced must accept the case as he finds it at the time of that replacement. He shall be bound by the procedural documents lodged by the party whom he replaces.29

3.5.3.3. The Other Party to the Proceedings before the Board of Appeal The other party may become an intervener by lodging a response. Proceedings before the Boards of Appeal of the EUIPO may be inter partes, for instance, where a company which already has a trade mark that is similar to the one applied for opposes, before the EUIPO, the registration of that newer sign. In these situations, there are two private parties opposed to each other at the pre-litigation stage, and this has a bearing on the procedure before the EU Courts as well. The GC RoP thus contains specific provisions in respect of the other party to the proceedings before the Boards of Appeal,30 who may join the Court proceedings as intervener under alleviated conditions and has extended rights as compared to interveners in other types of cases, such as actions for annulment.31 Thus, the other party to the proceedings before the Boards of Appeal

24 Case T-16/02 Audi v OHIM (TDI) [EU:T:2003:327] paras 97–98. 25 Case T-361/08 Peek & Cloppenburg and van Graaf v OHMI – Queen Sirikit Institute of Sericulture (Thai Silk) paras 16–18. 26 Order of 30 May 2018 in Case T-664/16 PJ v EUIPO – Erdmann & Rossi (Erdmann & Rossi) [EU:T:2018:321] paras 74 and 78–81. 27 See, eg Order of 26 January 2016 in Case T-490/15 SGP Rechtsanwälte v OHMI – StoryDOCKS (tolino) [EU:T:2016:66] paras 8–13. 28 cf para 1.61. 29 GC RoP, Art 176. 30 Order of 7 December 2016 in Case T-129/16 Claranet Europe v EUIPO – Claro (claranet) [EU:T:2016:728] para 7. 31 See also Statute, Art 53, which allows derogation from the general procedural rules on interventions.

3.537

312 Intellectual Property Cases may become an intervener in the proceedings before the General Court by simply responding to the application,32 which is served on him by the Registrar. It follows that in intellectual property cases, no application for a leave to intervene needs to be filed and the prospective intervener does not need to show that he has a direct and existing interest in the result of the case in order to be accepted as an intervener, as would be the case in other types of actions (cf para 5.260). 3.538

Time limit. The Registrar of the General Court informs the other party to the proceedings before the Board of Appeal of the lodging of the application. The Registrar also arranges for service of the application after determining the language of the case33 (cf paras 4.375 and 4.384). In order to become an intervener, the other party to the proceedings before the Board of Appeal must lodge the response to the application within two months and 10 days (added on account of distance)34 counted from the service of the application on that party. That time limit may, in exceptional circumstances, be extended by the President35 at the reasoned request of the party concerned.36 The other party may also obtain the status of the intervener by lodging any procedural document before the expiry of the time limit open for lodging the response. However, if no response is lodged within the deadline, the status of the intervener is lost.37

3.539

Rights of the intervener. Unlike interveners in other types of procedures, who may only support the heads of claims (forms of order) applied for by one of the main parties,38 the interveners in intellectual property cases may also apply for a form of order independently of those sought by the main parties. In particular, interveners may raise cross-claims. They are also entitled to raise pleas in law separately from those raised by the main parties.39 Lastly, even if the EUIPO fails to respond to the application, the case between the applicant and the intervener will still continue before the General Court, as the rules on judgment by default do not apply in this situation.40

3.540

Cross-claims. Under Article 182 of the GC RoP, ‘The parties to the proceedings before the Board of Appeal other than the applicant may submit a cross-claim within the same time limit as that prescribed for the submission of a response’ (two months and 10 days, counted from the reception of the application). The cross-claim shall seek an order annulling or altering the decision of the Board of Appeal on a point not raised in the application;41 therefore, a claim in which the intervener merely asks the General Court to uphold the decision of the Board of Appeal that has been challenged by the applicant cannot be regarded as a cross-claim.42

3.541

Interest to act must be shown in respect of the cross-claim. Since the cross-claim resembles a separate application insofar as the intervener asks for the (partial) annulment or the alteration of the decision of the Board of Appeal, he must show that he has a legal interest in that annulment or alteration. The General Court may apply the horizontal case law related to the interest in

32 GC RoP, Art 173(1). 33 GC RoP, Art 178(1). 34 GC RoP, Art 60. 35 cf para 1.61. 36 GC RoP, Art 179. 37 GC RoP, Art 173(2); see Order of 16 March 2018 in Case T-822/16 Kik Textilien und Non-Food v EUIPO – FF Group Romania (kix) [EU:T:2018:174] para 10. 38 GC RoP, Art 142(1). 39 GC RoP, Art 173(3). 40 GC RoP, Art 173(6). 41 GC RoP, Art 184(1). 42 Order of 11 January 2017 in Case T-95/16 Aydin v EUIPO – Kaporal Groupe (ROYAL & CAPORAL) [EU:T:2017:3] paras 24–25.

Pre-litigation Phase 313 bringing proceedings43 (cf para 3.534) or may also rely on the text of the IP Regulations, which prescribe that an appeal against a decision of the Boards of Appeal may only be lodged by a party who is ‘adversely affected’ by the decision.44 The two tests seem to bring the same result: the party has no interest in bringing a cross-claim and is not adversely affected by a decision of the Board of Appeal on points where his claims were granted by the Board, even if the Board did not examine all his arguments45 and therefore did not issue statements which could possibly have been useful for the intervener in other, eg national, proceedings. Where the intervener has no legal interest in raising a cross-claim against the targeted statements in the contested decision’s operative part, or is not ‘adversely affected’ by the aspect of the operative part of the contested decision concerned by the cross-claim, the cross-claim is dismissed as inadmissible. Replacement. If the other party to the proceedings before the Boards of Appeal transfers the IP right to a new owner, that new owner may replace the original party in the procedure before the General Court as an intervener (cf para 3.536). Under Article 175(1) of the GC RoP, the replacement must be requested in a separate document; it is not sufficient for the new owner to lodge a response to the application. If no separate application for replacement is filed, the status of intervener is declined by the General Court.46

3.542

3.5.4. Pre-litigation Phase The scope of the trade mark. When an application for the registration of a trade mark is filed, the applicant must indicate both the sign applied for and the requested product and service classes (or groups within them) in accordance with the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957. In essence, the trade mark will secure exclusive use of the sign only in respect of the products and services covered.47 In many situations, for instance where the trade mark is descriptive of only one part of the products or services requested, or where a risk of confusion with an earlier trade mark is only present as regards some of the requested products or services, the absolute or relative grounds for refusal may be removed by limiting the scope of the trade mark, that is, by restricting the products or services group covered. Litigation before the Boards of Appeal and the General Court often revolves around the scope of the trade mark applied for, and may well result in its limitation.

3.543

Powers of the Boards of Appeal. The Boards of Appeal of the EUIPO are responsible for deciding on appeals against the decisions of the EUIPO’s examiners, the Opposition Divisions, the Department of the Register, and the Cancellation Divisions.48 Appeals must be brought within

3.544

43 Order of 11 January 2017 in Case T-95/16 Aydin v EUIPO – Kaporal Groupe (ROYAL & CAPORAL) [EU:T:2017:3] paras 29–34. 44 Case T-671/17 Turbo-K International v EUIPO – Turbo-K (TURBO-K) [EU:T:2019:13] paras 91–100. 45 Order of 11 January 2017 in Case T-95/16 Aydin v EUIPO – Kaporal Groupe (ROYAL & CAPORAL) [EU:T:2017:3] paras 29–34; Case T-671/17 Turbo-K International v EUIPO – Turbo-K (TURBO-K) [EU:T:2019:13] paras 91–100; see also Case T-684/13 Copernicus-Trademarks v OHIM – Bolloré (BLUECO) [EU:T:2015:699] paras 28 et seq. 46 Case T-735/15 The Art Company B & S v EUIPO – Manifatture Daddato et Laurora (SHOP ART) [EU:T:2016:704] paras 13–14. 47 Including products and services marketed by competitors which are sufficiently similar or complementary to the products and services covered by the mark so that there is a risk of confusion in the customers’ eyes as regards the commercial origin of the products or services. 48 Arts 159–164 of the EU Trade Mark Regulation.

314 Intellectual Property Cases two months, counted from the notification of the decision.49 The Boards of Appeal may either exercise any power within the competence of the department which was responsible for the decision appealed or remit the case to that department for further prosecution.50 Some of the proceedings are ex parte, that is, there is only one private party in the proceedings before the Office, whereas other proceedings are inter partes, that is, they involve two private parties besides the relevant division of the Office. The type of the proceedings also has a bearing on the procedure before the EU Courts; therefore, some illustrations in the field of trade marks are provided below. 3.545

Appeals against the examiners’ decisions (ex parte proceedings). The EUIPO’s examiners have the power to issue decisions in which they state, for instance, that an EU trade mark application is rejected because one or several absolute grounds for refusal listed in Article 7 of the EU Trade Mark Regulation51 are present (eg where a sign is descriptive in respect of the products and services requested52 or is otherwise devoid of any distinctive character53). Appeals must be brought before the Boards of Appeal, and the resulting decisions may be challenged before the General Court. In these situations, there is no other party to the proceedings before the Boards of Appeal, therefore, no other person or company obtains the privileged status in the procedure before the EU Courts (cf paras 3.537–3.540). The indication of the case before the General Court thus refers only to the applicant and the defendant EUIPO, as well as to the sign applied for (in brackets).54

3.546

Appeals against decisions of the Opposition Division (inter partes proceedings). When the sign applied for passes through the examination stage,55 it is published in the EUIPO’s Bulletin, and any other party may lodge an opposition within three months from the publication,56 by relying on relative grounds for refusal. In this regard, the other party may allege, for example, that he is the proprietor of an earlier EU or national trade mark which is identical or similar to the trade mark applied for, and the products and services covered by the earlier sign are also identical or similar to the ones requested, which entails a risk of confusion.57 The Opposition Division is responsible for adopting a decision in the matter58 in proceedings which are, from the outset, inter partes. Against that decision, an appeal may be brought before the Boards of Appeal of the EUIPO, where the proceedings will still involve the two private parties whose interests are opposed. The inter partes feature also remains present in the procedure before the General Court. The applicant lodging the Court action may be either the party who applied for the trade mark or the opponent (depending on who won the case before the Boards of Appeal). The other party to the proceedings before the Boards of Appeal possesses the privileged status described in paras 3.537–3.540, and thus may become an intervener in the procedure before the General Court by simply lodging a response to the action within the prescribed time limit. In the event of only a partial success before the Boards of Appeal, the other party may raise a cross-claim.

49 Art 68(1) of the EU Trade Mark Regulation. 50 Art 71(1) of the EU Trade Mark Regulation. 51 Art 42 of the EU Trade Mark Regulation. 52 Art 7(1)(c) of the EU Trade Mark Regulation. 53 Art 7(1)(b) of the EU Trade Mark Regulation. 54 See, eg Case T-50/14 Demp v OHIM (TURBO DRILL) [EU:T:2015:892]; Case T-318/09 Audi and Volkswagen v OHIM (TDI) [EU:T:2011:330]. 55 Arts 41–42 of the EU Trade Mark Regulation. 56 Art 46(1) of the Eu Trade Mark Regulation. 57 Art 8(1)(b) of the EU Trade Mark Regulation. 58 Art 161 of the EU Trade Mark Regulation.

Time Limits and Formal Requirements 315 Reference to the case before the General Court includes, after a dash, the name of the other party before the Boards of Appeal59 even if he did not become an intervener,60 and the trade mark applied for is indicated in brackets. Appeals against decisions of the Cancellation Division. The Cancellation Division is responsible for revoking EU trade marks or declaring them invalid after they have been registered. Both absolute and relative grounds for refusal may be relied on before the Cancellation Division, as well as other reasons foreseen in the EU Trade Mark Regulation.61 Since the application seeking revocation or declaration of invalidity is brought by a party different from the holder of the EU trade mark, if the latter decides to defend his mark, the proceedings will be inter partes before the EUIPO instances. The features of the inter partes proceedings described in para 3.546 are therefore also present in the subsequent proceedings before the General Court.62

3.547

3.5.5. Time Limits and Formal Requirements The action must be submitted within two months plus 10 days. The IP Regulations provide that the time limit open for bringing an appeal against a decision of the Boards of Appeal of the EUIPO or the CPVO before the General Court is two months, counted from the date of notification of the decision of the Board to the party.63 In Green Effort, the General Court ruled that the extension of 10 days on account of distance, foreseen in Article 60 of the GC RoP, must be added to the time limit of two months.64 The General Court must ascertain of its own motion whether that time limit was observed. If the application is out of time, it will be dismissed as manifestly inadmissible,65 unless the applicant succeeds in justifying the delay with unforeseeable circumstances or force majeure (cf paras 4.95–4.97).66

3.548

General and specific formal requirements. Intellectual property cases are distinct from direct actions, albeit they are closely related to them. The application must fulfil the general formal requirements set out in Article 21 of the Statute, as well as the specific formal requirements applicable to intellectual property cases foreseen in Article 177 of the GC RoP (cf para 4.378). As in the case of actions for annulment, the measure whose annulment is sought – the decision of the Board of Appeal – must be annexed to the application.67 The subject matter of the action must be defined clearly and precisely in that action itself (cf para 4.382).

3.549

59 See, eg Case T-345/16 Blackmore v EUIPO – Paice (DEEP PURPLE) [EU:T:2018:652]. 60 See, eg Case T-59/18 Endoceutics v EUIPO – Merck (FEMIVIA) [EU:T:2018:821]. 61 Arts 58–60 of the EU Trade Mark Regulation. 62 See, eg Case T-1/17 La Mafia Franchises v EUIPO – Italy (La Mafia SE SIENTA A LA MESA) [EU:T:2018:146]. Italy requested the declaration of invalidity of the mark eight years after its registration, since it contained the word ‘mafia’ and was thus ‘contrary to public policy or to established principles of morality’, one of the absolute grounds for refusal. The Cancellation Division upheld Italy’s application and declared the trade mark invalid in respect of all of the goods and services for which it had been registered. La Mafia Franchises challenged the decision before the Boards of Appeal in an inter partes procedure, the other party being Italy. After the rejection of the appeal, La Mafia Franchises brought proceedings before the General Court against the decision of the Boards of Appeal, in which the other party (Italy) became an intervener upon lodging a response. See also Case T-683/17 Khadi and Village Industries Commission v EUIPO – BNP Best Natural Products [EU:T:2018:860]. 63 Art 72(5) of the EU Trade Mark Regulation; Art 61(5) of the Community Design Regulation; Art 73(4) of the Community Plant Variety Regulation. 64 Order of 23 February 2018 in Case T-794/17 The Green Effort v EUIPO [EU:T:2018:115] para 6. 65 Order of 23 February 2018 in Case T-794/17 The Green Effort v EUIPO [EU:T:2018:115] paras 7–10. 66 Statute, Art 45. 67 Statute, Art 21(2).

316 Intellectual Property Cases

3.5.6. Subject Matter of Intellectual Property Litigation 3.5.6.1. Annulment or Alteration of the Contested Decision 3.550

Reviewable acts. The IP Regulations clearly indicate that ‘Actions may be brought before the General Court against decisions of the Boards of Appeal in relation to appeals’.68 The concept of reviewable acts is transposed from the case law related to actions for annulment. The action must be brought against an existent act,69 which is neither preparatory nor confirmatory.70

3.551

Grounds for review are the same as in actions for annulment. The IP Regulations list the same grounds for review as the ones indicated in Article 263(2) TFEU. The action against a decision of the Boards of Appeal may be brought ‘on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the TFEU, infringement of [the relevant IP Regulation] or of any rule of law relating to their application or misuse of power’.71

3.552

Claim for annulment. The applicant – or, if there is a cross-claim, the intervener – may request the full or partial annulment of the contested decision in the forms of order sought. He must construe pleas in law that underpin that claim, with a view to showing that the defendant office committed one or several illegalities that can be grounds for review (cf para 3.551) and that affect the operative part of the contested decision (cf para 3.35).

3.553

Claim for alteration. The possibility to request the alteration of the contested decision is a peculiar feature of intellectual property litigation, having its legal basis in the IP Regulations and without parallel in other types of actions.72 The applicant – or the intervener raising a cross-claim – may request that the General Court alters the contested decision by issuing a decision that the Board of Appeal could have adopted by exercising its powers, if it had not committed the errors stated by the General Court.

3.554

Examples for alteration claims. In Völkl, the applicant sought that the General Court ‘annul the decision of the Opposition Division insofar as it upheld the opposition’,73 which was considered to be an admissible claim. In Betwin, the applicant asked that the General Court ‘rejects the opposition’, which was admissible and further to which, in the operative part of the judgment, the General Court annulled the decision of the Opposition Division and, indeed, rejected the opposition.74 In Windfinder, the examiner and the Board of Appeal found that the mark was descriptive in respect of four product and service classes out of the five requested. The applicant asked the Court to ‘alter the contested decision in a way that the sign be registered as it was applied for’ (ie for all five product and service classes). The claim was admissible and, in the operative part of the judgment, the General Court partially granted the alteration claim of the

68 Art 72(1) of the EU Trade Mark Regulation; Art 61(1) of the Community Design Regulation; Art 73(1) of the Community Plant Variety Regulation. 69 Case T-36/09 dm-drogerie markt v OHIM – Distribuciones Mylar (dm) [EU:T:2011:449] para 83. 70 Order of 12 December 2018 in Case T-565/17 CheapFlights International v EUIPO – Momondo Group (Cheapflights) [EU:T:2018:923] para 55. 71 Art 72(2) of the EU Trade Mark Regulation; Art 61(2) of the Community Design Regulation; Art 73(2) of the Community Plant Variety Regulation. 72 It should nonetheless be noted that the alteration power has some commonalities with the appeal power exercised by the Court of Justice, where it sets aside a General Court judgment and gives a final decision in the case without referring it back to the General Court. 73 Case T-504/09 Völkl v OHMI – Marker Völkl (VÖLKL) [EU:T:2011:739] para 22. 74 Case T-514/11 i-content v OHMI – Decathlon (BETWIN) [EU:T:2013:291] para 12 and the operative part.

Subject Matter of Intellectual Property Litigation 317 applicant by partially upholding the appeal against the examiner’s decision.75 On the other hand, in the earlier Brauwelt case, the General Court reached a diametrically opposite conclusion on admissibility. It dismissed the claim requesting the alteration of the contested decision ‘in such a way that the mark sought may be registered for the goods and services claimed’ as inadmissible.76

3.5.6.2. Inadmissible Heads of Claim No orders or directions for the EUIPO may be requested. Article 72(6) of the EU Trade Mark Regulation provides that ‘The Office shall take the necessary measures to comply with the judgment of the General Court or, in the event of an appeal against that judgment, the Court of Justice’.77 Accordingly, it is not for the EU Courts to issue directions to the EUIPO; it is for the latter to draw the appropriate inferences from the operative part and grounds of the Courts’ judgments.78 This case law implies that claims requesting the General Court ‘to order’ or ‘to allow’79 the registration of the mark applied for, or ‘to grant registration of the contested mark’80 (possibly for a larger group of products and services than those accepted by the examiner, the Opposition Division or the Board of Appeal), are inadmissible. Likewise, the head of claim requesting the Court to issue directions to the EUIPO to refuse the application for registration in whole or in part (in respect of some of the product or service classes or groups) is inadmissible,81 as well as claims in which the applicant asks the General Court to revoke a mark or to declare it invalid.82 In sum, the General Court may not issue any order on the status of a mark, ie registration, refusal of registration, revocation or invalidity.

3.555

No declarations may be requested. Under settled case law, the General Court has jurisdiction only to annul or to alter the decisions of the Boards of Appeal; it has no power to issue declaratory judgments (cf para 4.171). For instance, the head of claim in which the applicant sought a declaration according to which the EUIPO ‘was not entitled to reject the opposition filed by the applicant’83 or the one in which the applicant asked for a statement according to which ‘there is no similarity giving rise to confusion between the trade mark applied for and the earlier mark’ were dismissed as inadmissible.84

3.556

Delineation from alteration claims. In contrast, in Windfinder, the head of claim in which the applicant asked the General Court to ‘alter the contested decision in a way that the sign be registered as it was applied for’ (ie in respect of more products and services than the examiner and the Board of Appeal allowed) was held to be admissible as an alteration claim. The General Court

3.557

75 Case T-395/16 Windfinder R&L v EUIPO (Windfinder) [EU:T:2017:530] paras 16, 87–89 and the operative part, upheld on appeal in the Order of 24 January 2018 in Case C-553/17 P Windfinder R&L v EUIPO [EU:C:2018:33]. 76 Case T-56/15 Raimund Schmitt Verpachtungsgesellschaft v EUIPO (Brauwelt) [EU:T:2016:618] paras 12–14. 77 Art 61(6) of the Community Design Regulation and Art 73(5) of the Community Plant Variety Regulation contain similar provisions. 78 Case T-443/05 El Corte Inglés v OHIM – Bolaños Sabri (PiraÑAM diseño original Juan Bolaños) [EU:T:2007:219] para 20; see also Case T-262/16 Globo Media v EUIPO – Globo Comunicação e Participações (GLOBO MEDIA) [EU:T:2017:315] paras 12–14; Case T-331/99 Mitsubishi HiTec Paper Bielefeld v OHIM (Giroform) [EU:T:2001:33] para 33. 79 Case T-120/17 M&T Emporia Ilektrikon-Ilektronikon Eidon v EUIPO (fluo.) [EU:T:2018:672] paras 12–14. 80 Case T-262/16 Globo Media v EUIPO – Globo Comunicação e Participações (GLOBO MEDIA) [EU:T:2017:315] paras 10, 12–14. 81 Case T-443/05 El Corte Inglés v OHIM – Bolaños Sabri (PiraÑAM diseño original Juan Bolaños) [EU:T:2007:219] para 20; Case T-831/16 Kabushiki Kaisha Zoom v EUIPO – Leedsworld (ZOOM) [EU:T:2018:218] para 25. 82 Case T-534/13 Panrico v OHMI – HDN Development (Krispy Kreme DOUGHNUTS) [EU:T:2015:751] para 81. 83 Case T-480/13 You-View.tv v OHMI – YouView TV (YouView+) [EU:T:2014:591] para 15. 84 Case T-105/05 Assembled Investments (Proprietary) v OHMI – Waterford Wedgwood (WATERFORD STELLENBOSCH) [EU:T:2007:170] para 13.

318 Intellectual Property Cases granted it, but limited itself to partially upholding the appeal against the examiner’s decision (in exercising the powers of the Boards of Appeal) and stopped short of ordering registration for a broader range of products and services (cf para 3.553),85 since that would have been tantamount to issuing orders or directions to the EUIPO, for which the General Court has no competence. On the other hand, the General Court may reject the opposition,86 as that is one of the powers of the Boards of Appeal which can also be exercised by the General Court. Alteration claims raised to this end are therefore admissible.

3.5.6.3. Costs 3.558

Costs incurred before the Boards of Appeal are also recoverable. Since the appeal brought before the General Court against a decision of the Boards of Appeal is in a way a continuation of a lawsuit with the same subject matter between the same parties, specific rules apply to costs. Under Article 190(2) of the GC RoP, the party who is successful before the General Court may also recover the necessary costs incurred in the proceedings before the Boards of Appeal, beyond the costs incurred in those before the General Court. It is important to note that, in accordance with the general rules, the parties must explicitly ask for an order on costs, by also indicating that the costs incurred before the Boards of Appeal should be included as recoverable costs.

3.559

Where the EUIPO only bears its own costs. Article 190(1) of the GC RoP provides that ‘Where an action against a decision of a Board of Appeal is successful, the General Court may order the defendant to bear only its own costs’. This provision is a derogation from the rule under which the losing party must also bear the costs of the winning party.87 It may be plausibly applied in situations where the General Court states an illegality in the contested decision but it transpires from the file that the EUIPO was, after all, right in registering the mark or refusing registration, and can also be used as a deterrent against abusive litigation.

3.5.6.4. Cross-claims 3.560

Same type of claims as in the application. Article 184(1) of the GC RoP foresees that the cross-claim may seek an order annulling or altering the decision of the Board of Appeal on a point not raised in the application. Cross-claims may well be put forward in situations where none of the parties before the Board of Appeal is satisfied with the decision, eg where, after an opposition procedure, the mark is registered only for a part of the requested products and services. In these situations, the trade mark applicant may seek the annulment or alteration of the contested decision with the final goal that the trade mark be registered for more or all of the products and services requested, while the opponent may also challenge the contested decision as intervener before the General Court, raising a cross-claim for annulment or alteration with the objective that the trade mark be registered for fewer products and services or be totally refused. The roles in the proceedings before the General Court are reversed where the opponent brings the action as the applicant before the General Court and the trade mark applicant becomes the intervener.88 The subject matter of the cross-claim may be the same as that of the applicant’s claims, that is,

85 Case

T-395/16 Windfinder R&L v EUIPO (Windfinder) [EU:T:2017:530] paras 16, 87–89 and the operative part. T-514/11 i-content v OHMI – Decathlon (BETWIN) [EU:T:2013:291] para 12 and point 2 of the operative part. 87 GC RoP, Art 134(1). 88 See, eg Case T-458/15 Automobile Club di Brescia v EUIPO – Rebel Media (e-miglia) [EU:T:2016:688]. 86 Case

Connection with the Pre-litigation Phase 319 annulment or alteration of the contested decision. No orders, directions, injunctions for the EUIPO or declarations may be validly requested (cf paras 3.555–3.556). Dependence on the main action. Article 187 of the GC RoP foresees that a cross-claim is deemed to be devoid of purpose where the applicant discontinues the main action or if the main action is declared manifestly inadmissible.

3.561

3.5.7. Connection with the Pre-litigation Phase Terms of the litigation fixed before the Boards of Appeal. Article 188 of the GC RoP provides that the pleadings lodged by the parties in proceedings before the General Court may not change the subject matter of the proceedings before the Board of Appeal.89 As regards the review of the lawfulness of the Board of Appeal’s decision by the General Court, that review cannot go beyond the factual and legal context of the dispute as it was brought before that Board.90 These rules reflect the concept that the proceedings before the General Court are the continuation of the litigation before the Boards of Appeal, and it is mainly the responsibility of the latter to establish the set of facts. The action brought before the General Court is more similar to a proper appeal. It is not an action for annulment brought under Article 263 TFEU, in which the applicant may put forward any ground for annulment irrespective of the issues raised in the administrative procedure before an EU institution (cf para 4.195).

3.562

No new facts or evidence. Under settled case law, facts not submitted by the parties before the departments of EUIPO cannot be put forward at the stage of the appeal brought before the General Court. The Court is called upon to assess the legality of the decision of the Board of Appeal by reviewing the application of Union law made by the Board, particularly in the light of facts which were submitted to the latter. By contrast, the Court cannot carry out such a review by taking into account matters of fact newly produced before it.91 In application of this case law, for instance, in Gramberg, the General Court dismissed as inadmissible the evidence contained in 26 annexes to the application, which was not available to the Boards of Appeal, as well as the new account of the facts contained in the application which described those annexes. It highlighted that it was not the General Court’s function to review the facts in the light of documents which had been produced for the first time before it.92 New evidence submitted for the first time before the General Court is also inadmissible if it supports factual assertions that the applicant has already made before the EUIPO instances.93

3.563

Exception: well-known facts relied on by the EUIPO. In the context of the examination of absolute grounds for refusal,94 the competent bodies of the EUIPO may be led to base their

3.564

89 Case T-382/14 Rintisch v OHIM – Compagnie laitière européenne (PROTICURD) [EU:T:2015:686] para 18. 90 Case T-720/13 Gat Microencapsulation v OHIM – BASF (KARIS) [EU:T:2015:735] para 89, confirmed on appeal in Order of 26 May 2016 in Case C-639/15 P Gat Microencapsulation v EUIPO [EU:C:2016:376]; Case T-309/13 Enosi Mastichoparagogon v OHIM – Gaba International (ELMA) [EU:T:2015:792] para 15. 91 Case C-29/05 P OHIM v Kaul [EU:C:2007:162] para 54; see also Case C-214/05 P Rossi v OHIM [EU:C:2006:494] para 50. 92 Case T-166/15 Gramberg v EUIPO – Mahdavi Sabet (case for a mobile phone) [EU:T:2018:100] paras 16–17. See also Joined Cases T-83/11 and T-84/11 Antrax It v OHIM – THC (Radiators for heating) [EU:T:2012:592] paras 27–28; Case T-162/08 Frag Comercio Internacional/OHMI – Tinkerbell Modas (GREEN by missako) [EU:T:2009:432] paras 16–18; Case T-309/13 Enosi Mastichoparagogon v OHIM – Gaba International (ELMA) [EU:T:2015:792] paras 15–19. 93 Order of 17 July 2014 in Case C-468/13 P MOL v OHIM [EU:C:2014:2116] paras 39–42. 94 Art 7 of the EU Trade Mark Regulation.

320 Intellectual Property Cases decisions on facts which have not been put forward by the applicant for the mark. They may rely on well-known facts without underpinning them with evidence, for instance, in order to show that a sign is devoid of any distinctive character. In this situation, the applicant for a trade mark against whom the EUIPO relies on such well-known facts may challenge their accuracy for the first time before the General Court95 and may submit new evidence to that end. In defence, the EUIPO may submit fresh evidence to the General Court in order to substantiate the accuracy of well-known facts which have not been underpinned by evidence in the contested decision of the Board of Appeal.96 However, the applicant may not rely on well-known facts for the first time before the General Court and may not adduce fresh evidence to prove allegedly well-known facts mentioned by him before the EUIPO instances,97 as he may only submit new evidence to rebut the EUIPO’s statements regarding well-known facts. 3.565

No new pleas in law that relate to issues not addressed before the EUIPO. The applicant is not entitled to alter before the General Court the terms of the dispute as delimited in the claims and allegations put forward before the EUIPO.98 Therefore, the applicant may not raise a new plea in law before the Court that relates to an issue not debated before the Boards of Appeal. An illustration is provided by the popchrono case. Pirelly successfully applied for revocation of the mark popchrono, held by Mr IR, before the EUIPO instances. The revocation was granted by the Cancellation Division on the ground that Mr IR did not prove the genuine use of the mark. The existence or the lack of that genuine use was the only aspect debated between the parties before the Boards of Appeal, which confirmed the decision of the Division. Mr IR brought a case before the General Court and relied on a new plea in law, claiming that there were proper reasons for which he (and his licensee) did not use the mark. That plea concerned an aspect of the case (proper reasons for non-use) which did not belong to the subject matter of the dispute before the EUIPO instances (as that dispute revolved around the existence or the lack of genuine use, not around an exception where lack of use does not entail cancellation). Consequently, the General Court dismissed that plea as inadmissible.99 Another example is the Cryo-Save case, in which the applicant relied on an alleged procedural irregularity that flawed the decision of the Cancellation Division. The General Court stated that this plea had not been raised before the Board of Appeal, and therefore the applicant sought to change the subject matter of the case as put before the Board. On that ground, the Court dismissed that new plea in law as inadmissible.100

3.5.8. Grounds for Review 3.5.8.1. The Scope of Review 3.566

General. It should be recalled that the IP regulations specify the grounds for annulment or alteration, which are in line with Article 263(2) TFEU. They provide that ‘The action may be brought

95 Case C-24/05 P Storck v OHIM [EU:C:2006:421] paras 50–52. 96 Case C-88/11 P LG Electronics v OHIM [EU:C:2011:727] para 29. 97 Order of 17 July 2014 in Case C-468/13 P MOL v OHIM [EU:C:2014:2116] paras 39–42. 98 Case C-412/05 P Alcon v OHIM [EU:C:2007:252] para 43; Case T-133/09 I Marchi Italiani and Basile v OHIM – Osra (B. Antonio Basile 1952) [EU:T:2012:327] para 16; Case T-68/11 Kastenholz v OHIM – Qwatchme (Watch dials) [EU:T:2013:298] para 25. 99 Case T-132/15 IR v EUIPO – Pirelly Tyre (popchrono) [EU:T:2017:162] paras 9 and 40–42. 100 Case T-239/15 Cryo-Save v EUIPO – MedSkin Solutions Dr. Suwelack (Cryo-Save) [EU:T:2017:202] paras 17–22.

Grounds for Review 321 on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the TFEU, infringement of [the IP regulations] or of any rule of law relating to their application or misuse of power’.101 Review based on facts and law as they stood at the time of the adoption of the act and on the reasoning contained therein. As the Court of Justice ruled in eg Kaul, Sunrider and Edwin, the General Court may annul or alter a decision against which an action has been brought only if, at the time the decision of the Board of Appeal was adopted, it was vitiated by one of the grounds for annulment or alteration raised by the applicant or the intervener. The General Court may not annul or alter that decision on grounds which come into existence subsequent to its adoption.102 In that regard, the actions brought under the IP Regulations are similar to actions for annulment.

3.567

Exception: evolution in the interpretation of national law. In the context of an earlier national intellectual property right that was relied on to seek the declaration of invalidity of a newer EU mark, the Court of Justice ruled, eg in Szajner, that the General Court could take into consideration an evolution in the interpretation, by the national courts, of the rule of national law examined by the Board of Appeal of EUIPO, even if the evolution took place after the adoption of the Board’s decision.103 The Court of Justice highlighted the sensitivity of the situation where the decision of the competent EUIPO bodies could have the effect of depriving the proprietor of an EU trade mark of a right that had been granted to him, on the basis of an earlier national intellectual property right whose existence and scope could only be determined in application of national law. The Court added that the establishment of the content of the national law by the Board of Appeal was subject to a full review of legality by the General Court.104

3.568

3.5.8.2. The Alteration Power General. Article 72(3) of the EU Trade Mark Regulation and Article 61(3) of the Community Design Regulation provide respectively that the General Court (for trade marks) and the ‘Court of Justice’ (for designs)105 have the power not only to annul, but also to alter the decisions of the Boards of Appeal. The content of the alteration power has been defined by the case law examined below.

3.569

Scope of the alteration power: Edwin. In the seminal Edwin case, the appellant criticised the General Court for not having examined its alternative arguments not raised in the proceedings before the Board of Appeal. The appellant believed that in exercising the alteration power, specific to intellectual property cases, the General Court should have proceeded to a new assessment of all the facts, as submitted for the first time to the General Court. However, the Court of Justice

3.570

101 Art 72(2) of the EU Trade Mark Regulation; Art 61(2) of the Community Design Regulation; Art 73(2) of the Community Plant Variety Regulation. 102 Case C-263/09 P Edwin v OHIM [EU:C:2011:452] para 71; Case C-29/05 P OHIM v Kaul [EU:C:2007:162] para 53; Case C-416/04 P Sunrider v OHIM [EU:C:2006:310] paras 54–55. See also Case C-598/14 P OHIM v Szajner [EU:C:2016:915] para 44. 103 Case C-598/14 P OHIM v Szajner [EU:C:2016:915] para 42; see also Case T-215/16 Cop v EUIPO – Conexa (AMPHIBIAN) [EU:T:2017:241] paras 17 and 20. 104 Case C-598/14 P OHIM v Szajner [EU:C:2016:915] paras 12 and 35–45; see also Case C-530/12 P OHIM v National Lottery Commission [EU:C:2014:186] paras 36–38. 105 The EU Trade Mark Regulation grants such a power to the General Court, while the Community Design Regulation bestows that power on the ‘Court of Justice’, which presumably encompasses both EU Courts.

322 Intellectual Property Cases ruled, by upholding the first instance judgment, that the power of the General Court to alter decisions does not have the effect of conferring on the General Court the power to substitute its own reasoning for that of a Board of Appeal or to carry out an assessment on which that Board of Appeal has not yet adopted a position. Exercise of the power to alter decisions must therefore, in principle, be limited to situations in which the General Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take.106 The conditions of alteration are set out below in paras 3.571–3.574.107 3.571

The General Court may only adopt a decision that the Board of Appeal has the power to take. In exercising the alteration power, the General Court is only vested with the competences of the Boards of Appeal, not with those of the entire EUIPO. Heads of claim requesting a decision – or declaration, direction or injunction – from the General Court that the Boards of Appeal do not have the power to adopt are dismissed as inadmissible108 (cf paras 3.555–3.557). The Boards of Appeal do not have the power to register a mark or a design; therefore, the General Court does not have it either, and claims having such an object are inadmissible.109 However, the Boards have the power to annul the decision of the Opposition Division,110 or to uphold or dismiss the opposition, and this power may be exercised by the General Court as well.111

3.572

Alteration is only possible if the file is ‘ripe for decision’. The General Court may only exercise the alteration power in respect of aspects of the litigation which were duly explored before the Boards of Appeal so that the file before the Court is ‘ripe for decision’ (en l’état d’être jugé).112 The General Court does not have the power to carry out an assessment on which the Board of Appeal has not yet adopted a position,113 and the alteration power may not be exercised if the assessment by the Boards of Appeal on an aspect of the litigation was incomplete, even if the contested decision is annulled.114 This condition is logically linked to the case law under which, as a rule, no new pleas may be raised before the General Court (cf para 3.565) and no new evidence may be produced (cf para 3.563).

3.573

Alteration is only possible if an illegality is stated. The General Court may alter a decision against which an action has been brought only if, at the time the decision was adopted, it was vitiated by one of the grounds for annulment or alteration specified in the IP Regulations (cf para 3.566).115 Alteration is only possible where the General Court stated an illegality in the 106 Case C-263/09 P Edwin v OHIM [EU:C:2011:452] para 72; see also Case T-411/15 Gappol Marzena Porczyńska v EUIPO – Gap (GAPPOL) [EU:T:2017:689] para 205. 107 For a more detailed analysis, see H Expert and C Poullet ‘Le pouvoir de réformation du juge de l’Union en matière de propriété intellectuelle’ Journal de droit européen (2019/2) 2–11. 108 Case T-765/16 Grupo Ganaderos de Fuerteventura v EUIPO (EL TOFIO El sabor de CANARIAS) [EU:T:2018:31] paras 26–27; Case T-166/15 Gramberg v EUIPO – Mahdavi Sabet (case for a mobile phone) [EU:T:2018:100] paras 99–100. 109 Case T-765/16 Grupo Ganaderos de Fuerteventura v EUIPO (EL TOFIO El sabor de CANARIAS) [EU:T:2018:31] paras 26–28. 110 Case T-274/09 Deutsche Bahn v OHMI – DSB (IC4) [EU:T:2011:451] paras 20–24, 201 and the operative part. The judgment precedes the Edwin judgment and is not very clear on the differentiation between the annulment and the alteration power. 111 Case T-411/15 Gappol Marzena Porczyńska v EUIPO – Gap (GAPPOL) [EU:T:2017:689] para 204; Case T-514/11 i-content v OHMI – Decathlon (BETWIN) [EU:T:2013:291] para 12 and the operative part. 112 Case T-443/05 El Corte Inglés v OHIM – Bolaños Sabri (PiraÑAM diseño original Juan Bolaños) [EU:T:2007:219] para 31. 113 Case T-411/15 Gappol Marzena Porczyńska v EUIPO – Gap (GAPPOL) [EU:T:2017:689] para 205. 114 Case T-504/09 Völkl v OHMI – Marker Völkl (VÖLKL) [EU:T:2011:739] paras 116–121. 115 Case C-263/09 P Edwin v OHIM [EU:C:2011:452] para 71; Case T-97/16 Kasztantowicz v EUIPO – Gbb Group (GEOTEK) [EU:T:2017:298] paras 68–69.

Grounds for Review 323 contested decision and at least partially annuls the contested decision. By altering the decision, it mends the flaws in the contested decision and replaces the annulled part with a legally sound decision. Therefore, if the General Court finds no illegality and dismisses the annulment claim on the merits, it also dismisses the claim for alteration.116 Likewise, if the annulment claim is dismissed as inadmissible, the alteration claim follows suit.117 Only substantive illegalities justify alteration. The General Court may only alter a decision of the Boards of Appeal if the illegality goes to the substance of the contested decision. Procedural illegalities, breach of the rights of defence or of the duty to state reasons committed by the Boards of Appeal do not justify alteration. In such situations, the General Court annuls the contested decision but refrains from alteration,118 since a procedural flaw may only be remedied by the EUIPO instances in repeated proceedings. The presence of such a flaw also implies that the General Court is not in the position to issue a final decision on the matter (cf para 3.572), since the factual and legal circumstances of the case might have been different if the EUIPO instances had not committed those procedural illegalities.

3.574

Example – Windfinder. In the Windfinder case,119 the applicant requested the registration of the sign Windfinder for products and services falling within classes 9, 35, 38, 41 and 42 under the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957. The EUIPO’s examiner found in his decision that the sign was descriptive and devoid of any distinctive character (absolute grounds for refusal)120 in respect of the products and services falling within classes 9, 38, 41 and 42, which were inter alia wind gauges, information technology and telecommunication services, with meteorological services being explicitly mentioned. The examiner held that the sign could only be registered in respect of the services covered by class 35 (advertisement services).121 The applicant brought an appeal before the EUIPO’s Boards of Appeal. The competent Board dismissed the appeal, on the grounds that the sign was composed of the English words ‘wind’ and ‘finder’, which made reference to the characteristics of the products and services requested, and was indeed descriptive. In its action brought against the decision of the Board of Appeal, the applicant asked the General Court to annul the contested decision and to alter it in a way that the sign be registered as it was applied for (that is, in respect of all the requested product and service classes and not only for class 35). The General Court, somewhat liberally, considered that the alteration claim was admissible and did not rule that the applicant sought an order, direction or injunction to be issued to the EUIPO.122 On the substance, the General Court found that the sign was indeed descriptive in respect of some of the requested products and services (wind gauges, meteorological services), but not in respect of other products and services mentioned in the application for registration. Therefore, it held that the Board of Appeal breached Article 7(1)(b)–(c) of the EU Trade Mark

3.575

116 Case T-97/16 Kasztantowicz v EUIPO – Gbb Group (GEOTEK) [EU:T:2017:298] paras 68–69; Case T-620/16 The Logistical Approach v EUIPO – Idea Groupe (Idealogistic) [EU:T:2017:635] para 91. 117 Order of 11 March 2016 in Case T-840/14 International Gaming Projects v OHMI – Sky (Sky BONUS) para 27. 118 Case T-544/14 Société des produits Nestlé v OHMI – Terapia (ALETE) [EU:T:2015:842] paras 46–47; Case T-548/15 Guiral Broto v EUIPO – Gastro & Soul (Café del Sol) [EU:T:2016:720] paras 46–47. 119 Case T-395/16 Windfinder R&L v EUIPO (Windfinder) [EU:T:2017:530] paras 16, 87–89 and the operative part, upheld on appeal in Order of 24 January 2018 in Case C-553/17 P Windfinder R&L v EUIPO [EU:C:2018:33]. 120 Art 7(1)(b)–(c) of the EU Trade Mark Regulation. 121 Case T-395/16 Windfinder R&L v EUIPO (Windfinder) [EU:T:2017:530], upheld on appeal in Order of 24 January 2018 in Case C-553/17 P Windfinder R&L v EUIPO [EU:C:2018:33]. 122 An almost identical head of claim was dismissed as inadmissible in Case T-56/15 Raimund Schmitt Verpachtungsgesellschaft v EUIPO (Brauwelt) [EU:T:2016:618] paras 12–14. Windfinder seems to be more authoritative, both because it is more recent and because it was confirmed by the Court of Justice.

324 Intellectual Property Cases Regulation (thereby committing a substantive illegality). Still, it upheld the contested decision in respect of wind gauges (class 9) and meteorological services (class 42) in respect of which it found the sign to be descriptive; however, it partially annulled the decision insofar as the Board of Appeal refused the registration in respect of all the other products and services, as regards which the sign was found not to be descriptive. As for the alteration claim, the General Court partially upheld the appeal against the examiner’s decision (for the products and services other than wind gauges and meteorological services),123 thereby exercising a power of the Boards of Appeal and issuing a decision that the Boards of Appeal should have issued had it not committed the substantive errors stated in the judgment. 3.576

Example: Gappol. In the Gappol case,124 the applicant, PP Gappol, filed an application to register the sign GAPPOL as an EU trade mark. Gap, the intervener, raised an opposition based on the earlier mark GAP and was partially successful before the Opposition Division. The Board of Appeal’s decision was even more favourable for the intervener as it upheld the opposition for a broader range of products and rejected the application for registration in respect of the goods in Class 20 (Furniture), by considering that PP Gappol could take an unfair advantage from the reputation of that mark under Article 8(5) of the EU Trade Mark Regulation. In the action brought before the General Court, the applicant claimed both the annulment and the alteration of the contested decision, by asking the Court to ‘give a final decision by amending the contested decision by rejecting the opposition’. The admissibility of this alteration claim was not disputed by the other parties. Furthermore, the General Court upheld one of the pleas in law of the applicant. It ruled that the Board of Appeal failed to specify the strength of the earlier mark’s reputation and omitted to identify the degree of distinctiveness of the earlier mark. Thereby, the Board did not rule on two relevant factors to be taken into account when assessing if the relevant public would create a link between the conflicting signs and if the applicant for the mark (PP Gappol) could take an unfair advantage of the distinctive character or the repute of the earlier mark. The General Court thus held that the Board of Appeal infringed Article 8(5) of the EU Trade Mark Regulation, thereby stating the existence of a substantive illegality. Since that illegality vitiated the final conclusion of the contested decision, the Court annulled the relevant part of that decision.125 However, it dismissed the alteration claim. It held that it was not itself entitled to assess the strength of the reputation and the distinctive character of the earlier mark where it had not been examined by the Board of Appeal. After recalling the Edwin judgment,126 the General Court pointed out that the power of review did not entitle it to carry out an assessment on which the Board of Appeal had not yet adopted a position.127 This case is therefore an illustration of the situation where the alteration claim is admissible and a substantive illegality is stated by the General Court, but the alteration claim cannot be granted because the file before the General Court is not ripe for a final decision (cf para 3.572).

3.5.9. Result of the Proceedings 3.577

General. If the General Court upholds the claim for annulment, it annuls the decision of the Board of Appeal, which has the same effect as the judgment delivered in an action for annulment: the contested decision becomes null and void. If, in addition, the Court alters the decision,

123 Case

T-395/16 Windfinder R&L v EUIPO (Windfinder) [EU:T:2017:530] operative part. T-411/15 Gappol Marzena Porczyńska v EUIPO – Gap (GAPPOL) [EU:T:2017:689]. 125 Case T-411/15 Gappol Marzena Porczyńska v EUIPO – Gap (GAPPOL) [EU:T:2017:689] paras 196–202. 126 Case C-263/09 P Edwin v OHIM [EU:C:2011:452] para 72. 127 Case T-411/15 Gappol Marzena Porczyńska v EUIPO – Gap (GAPPOL) [EU:T:2017:689] paras 203–206. 124 Case

Result of the Proceedings 325 the judgment replaces the contested decision as a whole or in the altered part. The EUIPO and the CPVO must take the necessary measures to comply with the judgment of the General Court or, in the event of an appeal against that judgment, the Court of Justice.128 Accordingly, it is not for the EU Courts to issue directions to the EUIPO. Rather, it is for the latter to draw the appropriate inferences from the operative part and grounds of the Courts’ judgments.129 Therefore, where the EUIPO or the CPVO adopts a new decision inter alia on the registration or the refusal of registration of the mark, design, or plant variety applied for, it must take due account of the judgment.130 Limited right to appeal. As of 1 May 2019, the right to appeal against the General Court’s judgment or orders handed down in intellectual property matters is limited; the Court of Justice now applies a filtering mechanism and may decide on whether it allows the appeal to proceed or not (cf para 3.594).

128 Art 72(6) of the EU Trade Mark Regulation; Art 61(6) of the Community Design Regulation; Art 73(5) of the Community Plant Variety Regulation. 129 Case T-443/05 El Corte Inglés v OHIM – Bolaños Sabri (PiraÑAM diseño original Juan Bolaños) [EU:T:2007:219] para 20; see also Case T-262/16 Globo Media v EUIPO – Globo Comunicação e Participações (GLOBO MEDIA) [EU:T:2017:315] paras 12–14; Case T-331/99 Mitsubishi HiTec Paper Bielefeld v OHIM (Giroform) [EU:T:2001:33] para 33. 130 See, eg the registration of the Windfinder trade mark on 21 September 2018 for classes 9, 35, 38, 41 and 42, following the judgment of the General Court of 20 July 2017, which annulled and altered the decision of the Board of Appeal (Case T-395/16 Windfinder R&L v EUIPO (Windfinder) [EU:T:2017:530]), confirmed on appeal by the Court of Justice on 24 January 2018 (Order of 24 January 2018 in Case C-553/17 P Windfinder R&L v EUIPO [EU:C:2018:33]), cf 3.575.

3.578

3.6. Appeals [written by Viktor Bottka1]

3.6.1. Overview 3.579

Notion. The appeal is a procedure open to unsuccessful parties in the first instance procedure, as well as institutions and Member States even if they were not parties. Appeals may be brought against the judgments and orders of the General Court before the Court of Justice and must be based on points of law. Bringing an appeal does not suspend the effects of the first instance judgment. If the appeal is well founded, the Court of Justice sets aside the decision of the General Court fully or in part. In such a case, it may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.2 The procedural rules applicable to appeals are presented in Chapter 4.4. Procedure in Appeals.

3.580

History. Appeal proceedings came about when the Court of First Instance (now called the General Court) was created in 1988.3 They enabled the Court of Justice to continue ensuring the unity of the interpretation and application of Union law while allowing the General Court to perform its specific tasks (cf paras 1.18–1.21) and to assess the facts, in principle, at first and last instance in the cases brought before it. The Union law appeal bears resemblance to the review by a court of cassation in some national legal systems, insofar as it is limited to points of law. However, the Union law appeal gives wider review possibilities (eg the distortion of facts may become a reviewable point of law) and, where the appealed judgment is set aside, the Court of Justice may rule definitively on the entire dispute if it decides not to refer the case back to the General Court4 (cf para 3.640).

3.581

Article 256 TFEU. Article 256 TFEU (ex Article 225 TEC) contains the following provisions: 1. The General Court shall have jurisdiction to hear and determine at first instance actions or proceedings referred to in Articles 263, 265, 268, 270 and 272, with the exception of those assigned to a specialised court set up under Article 257 and those reserved in the Statute for the Court of Justice [see Article 51 of the Statute]. The Statute may provide for the General Court to have jurisdiction for other classes of action or proceeding. Decisions given by the General Court under this paragraph may be subject to a right of appeal to the Court of Justice on points of law only, under the conditions and within the limits laid down by the Statute.

1 Member of the Legal Service, European Commission. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the European Commission. 2 The Court of Justice may equally decide on appeals against decisions of the (Euratom) Arbitration Committee, but this provision has never been applied in practice. 3 Through the introduction of Art 225 TEC (now Art 256 TFEU) and Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1). 4 Statute, Art 61. C Naômé ‘Le pourvoi devant la Cour de justice et la refonte du règlement de procédure de la Cour’ (in: Contentieux de l’Union européenne ed. by S Mahieu, Larcier, Brussels, 2014) 464–465; M Wathelet and J Wildemeersch, Contentieux européen (Larcier, Brussels, 2014) 469.

Overview 327 2. The General Court shall have jurisdiction to hear and determine actions or proceedings brought against decisions of the specialised courts. Decisions given by the General Court under this paragraph may exceptionally be subject to review by the Court of Justice, under the conditions and within the limits laid down by the Statute, where there is a serious risk of the unity or consistency of Union law being affected.

Statute. The key provisions regarding appeals are laid down in the Statute. Article 56 of the Statute provides as follows:

3.582

An appeal may be brought before the Court of Justice, within two months of the notification of the decision appealed against, against final decisions of the General Court and decisions of that Court disposing of the substantive issues in part only or disposing of a procedural issue concerning a plea of lack of competence or inadmissibility. Such an appeal may be brought by any party which has been unsuccessful, in whole or in part, in its submissions. However, interveners other than the Member States and the institutions of the Union may bring such an appeal only where the decision of the General Court directly affects them. With the exception of cases relating to disputes between the Union and its servants, an appeal may also be brought by Member States and institutions of the Union which did not intervene in the proceedings before the General Court. Such Member States and institutions shall be in the same position as Member States or institutions which intervened at first instance.

Furthermore, Article 58 of the Statute defines the subject matter of appeals: An appeal to the Court of Justice shall be limited to points of law. It shall lie on the grounds of lack of competence of the General Court, a breach of procedure before it which adversely affects the interests of the appellant as well as the infringement of Union law by the General Court. No appeal shall lie regarding only the amount of the costs or the party ordered to pay them.

The disappearance of the Civil Service Tribunal and of the appeals before the General Court. Under Article 256(2) TFEU, the General Court has jurisdiction to hear and determine actions or proceedings brought against decisions of the specialised courts. To date, the only specialised court ever created was the Civil Service Tribunal. The review of the Statute in 2016 provided for the incorporation of the Civil Service Tribunal into the General Court from 1 September 2016 (cf para 1.17). The Civil Service Tribunal thus disappeared on that date, and with it went the possibility to appeal its judgments before the General Court. Under the provisions in force, the judgments and orders of the General Court delivered in staff cases may be appealed before the Court of Justice, in the same way as any other decision of the General Court.

3.583

Restrictions on appeals as regards decisions of the General Court concerning Boards of Appeal cases (inter alia EUIPO and ECHA). The amendments of the Statute5 and of the Rules of Procedure of the Court of Justice (CJ RoP)6 in April 2019 introduced a limitation as regards appeals against decisions of the General Court adopted in some fields. Accordingly, as of 1 May 2019, an appeal brought against a decision of the General Court concerning a decision of an independent Board of Appeal of the EU Intellectual Property Office (EUIPO), the Community Plant Variety Office (CPVO), the European Chemicals Agency (ECHA) or the European Union Aviation Safety Agency may not proceed unless the Court of Justice first decides that it should be allowed to do so (cf para 3.594).

3.584

5 Regulation (EU, Euratom) 2019/629 of the European Parliament and of the Council of 25 April 2019 (OJ 2019 L 111, p. 1). 6 Amendments of the Rules of Procedure of the Court of Justice of 25 April 2019 (OJ 2019 L 111, p. 73).

328 Appeals 3.585

In direct actions, as a rule, an appeal does not suspend the implementation of the contested judgment. Article 60 of the Statute states that an appeal shall not have suspensory effect, save for the possibility to adopt interim measures or where the General Court annuls a regulation (cf para 3.586). This means, in essence, that in direct actions, the defendant institution or body has to comply with the first instance judgment, regardless of whether there is an appeal. Therefore, if the General Court eg reduces or annuls a competition fine, the Commission refunds it to the undertaking with interest. However, if the General Court judgment is annulled on appeal, the fine can be enforced once again, with interest counted from the due date set in the decision imposing it.7

3.586

The appeal suspends the effect of the first instance judgment where it annuls a regulation. Under Article 60(2) of the Statute, decisions of the General Court declaring a regulation to be void take effect only as from the date of expiry of the period open for appeal or, if an appeal has been brought, as from the date of dismissal of the appeal (cf para 3.324).

3.587

In trade mark cases, the appeal suspends the effect of the Board of Appeal decision. The appeal has a suspensory effect in intellectual property cases, at least as regards trade marks, insofar as the decisions of the Boards of Appeal of the EUIPO only take effect after the dismissal of the action before the General Court and the confirmation of the General Court’s decision on appeal8 (cf para 3.525). Since this provision relates to the effect of the decision of the Board of Appeal and not to that of the decision of the General Court, it does not contradict Article 60 of the Statute.

3.588

Cross-appeal provides the possibility to respond to an appeal already submitted by another party. In essence, cross-appeals provide a second appeal possibility to the parties to a first instance case who did not wish to initiate an appeal procedure but change their mind once another party appeals. The cross-appeal follows similar rules as a normal appeal as regards its admissibility, form and content (cf Section 3.6.8. Cross-Appeals, cf 4.425 et seq).

3.589

Admissibility. In order to be admissible, an appeal or cross-appeal must fulfil the following main conditions: i) It must be directed against an appealable decision of the General Court (cf Section 3.6.2. Appealable Decisions); ii) It must be filed by an unsuccessful party (applicant, defendant, intervener) to the first instance procedure, or by an EU institution or a Member State even if it was not a party (cf Section 3.6.3. Parties); iii) The appeal must comply with the formal requirements (cf Section 3.6.4. Formal Requirements and Procedural Aspects); iv) The appeal must be brought within the applicable time limit (cf Section 3.6.5. Time Limits).

7 See Order of 5 August 2015 removing from the register Case T-137/15 Parker Hannifin Manufacturing and ParkerHannifin v Commission [not reported]. In this case, the interest on the fine during the period of the Commission’s successful appeal in Case C-434/13 P Commission v Parker Hannifin Manufacturing and Parker-Hannifin (marine hose cartel) [EU:C:2014:2456] was at issue. Following a settlement, Parker withdrew the Court challenge and the Commission refrained from claiming punitive default interest for the period of the appeal, instead claiming only normal interest to compensate monetary erosion. 8 Art 71(3) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1). Art 60(3) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1) contains similar rules, but the effect of the appeal before the Court of Justice is not so clearly defined. Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1) does not settle this issue.

Appealable Decisions 329 Substance. As to the substance, appeals must be based on one or several grounds specified in Article 58 of the Statute.9 Each of these must relate to an error of law or a distortion of evidence, and must be capable of setting aside the judgment (cf Section 3.6.6. Grounds for Review). The consequence of a successful appeal is that the decision of the General Court is set aside whole or in part (cf Section 3.6.7. Result of the Proceedings).

3.590

3.6.2. Appealable Decisions Terminology. The term ‘decision’ of the General Court encompasses judgments and orders, as well as other, possibly informal, procedural decisions adopted by the General Court.

3.591

Judgments and orders on the substance and on the admissibility of the action are appealable. Article 56 of the Statute provides that appeals may lie against ‘final decisions of the General Court and decisions of that Court disposing of the substantive issues in part only or disposing of a procedural issue concerning a plea of lack of competence or inadmissibility’. First, ‘final decisions’ are the judgments (or, exceptionally, orders) of the General Court deciding the substance of the case in actions for annulment (Article 263 TFEU), actions for failure to act (Article 265 TFEU), actions for damages (Article 268 TFEU), staff cases (Article 270 TFEU), arbitration clause cases (Article 272 TFEU) and intellectual property cases. Secondly, ‘final decisions’ also include the orders (or, exceptionally, judgments) dismissing such actions as inadmissible (cf Section 4.2.11. Judgments and Orders Ending the Case). Thirdly, as to decisions disposing of ‘substantive issues in part only’, it should be noted that they are rare in practice. Such a solution may nonetheless be chosen in cases where the applicant brings a combined action for annulment and action for damages, whereupon the General Court annuls the contested act and establishes the noncontractual liability of the EU in an interlocutory judgment, while giving the parties some time to agree on the amount of damages10 (cf para 3.334). In such a situation, the interlocutory judgment is appealable. Fourthly, the section allowing appeals on decisions regarding a ‘procedural issue concerning a plea of lack of competence or inadmissibility’ means that separate orders declaring the action admissible by rejecting such a plea (cf para 5.335) are also subject to appeal, not just the orders dismissing the application as inadmissible (which are ‘final decisions’).

3.592

Orders rejecting a request to intervene and orders on interim measures are appealable. Article 57 of the Statute adds two more appealable decisions: dismissal of an application to intervene11 by the General Court and orders by the General Court allowing or dismissing an application for interim measures, such as the suspension of the application or enforcement of an act12 (cf Chapter 5.2. Interim Measures). It is noteworthy that such orders on interim measures are appealable, although, by definition, they are not final but apply only for the period until the main case is decided.

3.593

Restriction on appeals concerning decisions adopted by Boards of Appeal (inter alia EUIPO and ECHA). The modification of the Statute in April 201913 introduced a limitation on appeals

3.594

9 ‘It shall lie on the grounds of lack of competence of the General Court, a breach of procedure before it which adversely affects the interests of the appellant as well as the infringement of Union law by the General Court.’ 10 See Case C-152/88 Sofrimport v Commission [EU:C:1990:259], where the Court of Justice delivered such an interlocutory judgment. 11 See, eg Order 6 April 2006 in Case C-130/06 P(I) An Post v Deutsche Post [EU:C:2006:248] paras 6–12. 12 See, eg Order 17 September 2015 in Case C-386/15 P(R) Alcogroup and Alcodis v Commission [EU:C:2015:623]. 13 The Statute was amended by Regulation (EU, Euratom) 2019/629 of the European Parliament and of the Council of 25 April 2019 (OJ 2019 L 111, p. 1), which introduced a new Art 58a.

330 Appeals against decisions of the General Court in some fields, which is foreseen in the newly added Article 58a of the Statute. Accordingly, an appeal brought against a decision of the General Court concerning a decision of an independent Board of Appeal of one of the following offices and agencies of the Union may not proceed unless the Court of Justice first decides that it should be allowed to do so: (i) the EUIPO; (ii) the CPVO; (iii) the ECHA; or (iv) the European Union Aviation Safety Agency. To that effect, a filtering mechanism has been introduced, which is regulated in Articles 170a–170b of the CJ RoP.14 The appellant must annex to the appeal a request that the appeal be allowed to proceed, in which he must explain why the issue raised by the appeal is significant with respect to the unity, consistency or development of EU law (cf para 4.417). The decision on whether to allow the appeal to proceed is taken in a reasoned order by the Court of Justice (cf para 4.423). The reasons for this limitation of the right to appeal are, first, that many appeals were brought in cases which had already been considered twice, initially by an independent Board of Appeal and later by the General Court, and secondly, that many of those appeals were dismissed by the Court of Justice because they were patently unfounded or on the ground that they were manifestly inadmissible. It was considered necessary, in the interests of the proper administration of justice, to introduce a procedure whereby the Court of Justice allows such an appeal to proceed only where it raises an issue that is significant with respect to the unity, consistency or development of Union law.15 It is also worth mentioning that recently the Court of Justice experienced a great increase in its workload,16 and this arrangement allows it to focus on preliminary rulings and infringement actions in which it is the only instance to rule on the case, and which affect legal systems of EU Member States in general. Furthermore, this new rule allows for faster decisions by the EUIPO on the registration of EU trade marks in many cases, as it removes the extra delay caused by the suspensory effect of the appeal before the Court of Justice on the Boards of Appeal decisions (cf para 3.587). 3.595

Non-appealable procedural decisions. Procedural decisions other than those concerning a plea of lack of competence or inadmissibility (singled out in Article 56 of the Statute, cf para 3.592) are not subject to appeal. Some of these decisions are listed non-exhaustively in the Rules of Procedure of the General Court (GC RoP), for instance the orders related to costs and legal aid, with an explicit mention excluding appeal.17 Other procedural decisions which are not appealable include orders or informal decisions on measures of organisation of procedure or measures of inquiry (cf Section 4.2.7. Measures of Organisation of Procedure and of Inquiry), such as requesting a document from a party,18 putting questions to the parties, ordering in camera hearings or sanctioning a party for his behaviour at the hearing. Furthermore, orders accepting expedited proceedings, granting leave to intervene and staying proceedings19 are not subject to appeal, either. However, if such measures lead to a procedural irregularity, such as inobservance of the correct procedure for the hearing of witnesses, that may be raised in an appeal against the final 14 Amendments of the Rules of Procedure of the Court of Justice of 25 April 2019 (OJ 2019 L 111, p. 73), inserting a new section entitled ‘Prior determination as to whether appeals under article 58a of the Statute should be allowed to proceed’, consisting in CJ RoP, Arts 170a–170b. 15 Recital 4 of Regulation (EU, Euratom) 2019/629 of the European Parliament and of the Council of 25 April 2019 (OJ 2019 L 111, p. 1) amending the Statute. 16 In 2018, 849 cases were brought before the Court of Justice (2018 Annual Report of the Court of Justice of the European Union, p. 42), as compared to 739 cases brought in 2017 (2017 Annual Report of the Court of Justice of the European Union, p. 36). 17 GC RoP, Art 148 (Decision on the application for legal aid), Art 149 (Advances and responsibility for costs in cases of legal aid), Art 150 (Withdrawal of legal aid) and Art 170 (Dispute concerning the costs to be recovered). 18 Order 4 October 1999 in Case C-349/99 P ADT Projekt Gesellschaft v Commission [EU:C:1999:475] paras 9–11. 19 Order in Joined Cases C-366/03 P to C-368/03 P, C-390/03 P, C-391/03 P and C-394/03 P Associazione bancaria italiana v Commission [not reported].

Appealable Decisions 331 judgment on the substance of the case20 (although it must be shown that a procedural irregularity had a bearing on the outcome of the first instance case). The appeal must be directed against the operative part of the first instance decision. Obiter dicta are inessential grounds included for the sake of completeness in the judgment at first instance, and as such, no appeal may lie from them21 (albeit the parties may be in disagreement on what constitutes an obiter dictum22). A similar line of case law evokes the rule in Article 169(1) of the CJ RoP, under which appeals must be directed against the operative part of the judgment, so an appeal directed exclusively against the reasoning is inadmissible.23

3.596

No appeal against the decision on costs alone. Article 58 of the Statute provides that no appeal may lie regarding only the amount of the costs or the party ordered to pay them.24 The amount of the costs, the designation of the party who has to bear them or the repartition of the costs between the parties may not be disputed in an appeal on a stand-alone basis. Of course, in an appeal validly lodged on other grounds, the form of order may claim that the other party should bear the costs of the appeal and of the first instance procedure. In its judgment in H&R ChemPharm, the General Court started to apply the provision in the GC RoP on taking mesures against a party who imposed avoidable costs on the General Court25 (cf para 5.362). It is unclear if such decisions give rise to a stand-alone right of appeal. While the letter of the Statute seems to exclude such a right, its economy may allow for it, if the order on avoidable costs is perceived as a sanction on a party.

3.597

Further illustrations for decisions that may be appealed against. The Court of Justice has interpreted the notion of appealable decision in various atypical situations. It considered that an appeal may lie against a decision of the General Court dismissing as inadmissible an application for revision of a judgment26 (under Article 44 of the Statute). It also held that the General Court’s decision refusing to enter an application in the register of cases (because it appeared abusive or had the same object as previously rejected cases) was appealable.27 Lastly, it was also recognised

3.598

20 See, eg Case C-578/11 P Deltafina v Commission (Italian raw tobacco cartel) [EU:C:2014:1742] para 62: ‘In those circumstances, it must be noted that Deltafina rightly argues that, by questioning its lawyer and the Commission official in charge of the case at the hearing on their understanding of what was agreed at the meeting of 14 March 2002 and in the telephone conversation of 22 March 2002, the General Court went beyond what may be carried out under that practice, since the General Court’s questioning concerned facts which ought to be established, as necessary, by witness statements, under the procedure laid down in Article 68 of the Rules of Procedure of the General Court [of 1991].’ 21 See Case C-244/91 P Pincherle v Commisson [EU:C:1993:950] paras 25 and 31; Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission (pre-insulated pipes cartel) [EU:C:2005:408] para 148; Case C-96/09 P Anheuser-Busch v Budějovický Budvar [EU:C:2011:189] para 211: ‘It is settled case law that complaints directed against grounds included in a judgment of the General Court purely for the sake of completeness cannot lead to the judgment being set aside and are therefore ineffective.’ 22 Opinion of AG Wathelet in Case C-536/13 Gazprom [EU:C:2014:2414] para 131. 23 Order of 17 July 2014 in Case C-490/13 P Cytochroma Development v OHIM [EU:C:2014:2122] paras 28–34. 24 Case C-37/13 P Nexans and Nexans France v Commission [EU:C:2014:2030] para 51. 25 GC RoP, Art 139(a). See Case T-551/08 H&R ChemPharm v Commission (candle wax cartel) [EU:T:2014:1081] para 352: ‘Under Article 90(1)(a) of the [old GC RoP of 1991], moreover, where the Court has incurred avoidable costs, it may order the party that caused them to refund them. In the present case … the applicant provided inaccurate and imprecise answers to the written questions put by the Court. The applicant’s conduct rendered the examination of the present case more complex, which made the Court’s task unnecessarily onerous, by obliging it to carry out avoidable tasks. The applicant must therefore be ordered to refund EUR 10 000 to the cashier of the General Court.’ This finding, among others, was appealed against. The Court of Justice upheld the judgment in Case C-95/15 P H&R ChemPharm v Commission [EU:C:2017:125]. 26 Case C-5/93 P DSM v Commission [EU:C:1999:364] paras 30–31. 27 Orders in Cases C-348/00 P, C-349/00 P, C-350/00 P and C-424/00 P Gluiber v Commission [not reported].

332 Appeals that even if a judgment repeats in essence the reasoning of another judgment, an appeal may be lodged against each of those decisions.28 3.599

Further illustrations for decisions that are not subject to appeal. In the seminal Boehringer case,29 the General Court skipped the examination of a formal plea of inadmissibility and dismissed the action for annulment on the merits of the case, a practice the General Court often resorts to when faced with a complex admissibility issue while having a clear-cut negative solution regarding the substance. On appeal, the Court of Justice held30 that the decision of the General Court to join a plea of inadmissibility to the substance of the case and not to rule on it was not subject to appeal.31 Another example of a non-appealable decision was a letter from the General Court’s Registry informing an applicant that his request to be represented at the hearing by a trade mark and design litigator could not be granted on the ground that such a person is not a ‘lawyer’ within the meaning of Article 19 of the Statute.32

3.6.3. Parties 3.600

Formal issues. Since the appeal is directed against the first instance judgment and not against another party, the case title given by the Court of Justice mentions the appellants first and then the ‘other parties to the proceedings’. The latter are the respondent(s), including the intervener(s) at first instance, regardless of whether they actually lodged a response in the appeal procedure.

3.6.3.1. Appellants (i) Categories of Appellants 3.601

Privileged and non-privileged appellants. Member States and EU institutions are privileged appellants which do not need to show an interest in bringing the appeal, and they may appeal even if they did not take part in the first instance proceedings. All other parties, such as natural or legal persons, as well as bodies, offices and agencies of the EU, are non-privileged appellants, and their appeal is conditional on an interest to act (cf para 3.609) and on the participation in the first instance proceedings as a main party, an intervener or, where the dismissal of an application for a leave to intervene is appealed, an applicant for a leave to intervene.

3.602

Appellants fall into five categories. The first three categories of appellants are defined by Article 56 of the Statute, as their appeals are directed against final decisions of the General Court (cf para 3.592). These appellants are the following: (i) unsuccessful main parties (applicant and defendant) at first instance (other than Member States and EU institutions), (ii) interveners 28 Case T-52/10 P Lebedef v Commission [EU:T:2010:543] paras 20–24. 29 Case T-125/96 Boehringer v Council and Commission [EU:T:1999:302]. 30 Case C-23/00 P Council v Boehringer [EU:C:2002:118] paras 48–52. See S Mahieu and C Naômé, ‘Le pourvoi devant la Cour de justice et la refonte du règlement de procédure de la Cour’ (in: Contentieux de l’Union européenne, Larcier, Brussels, 2014) 468–469. However, if the General Court judgment on substance is appealed against and set aside, the Court of Justice may decide to rule on the matter itself and may even decide to reject the first instance application as inadmissible. See the request of the Commission to this effect in Case C-415/14 P Quimitécnica.com and de Mello v Commission (phosphate cartel) [EU:C:2016:58]. The Court of Justice set aside the judgment of the General Court but did not tackle the issue of the admissibility of the initial action for annulment. 31 However, a cross-appeal is still possible against implied decisions on admissibility, based on CJ RoP, Art 178(2) (cf para 3.643). 32 Order of 10 July 2009 in Case C-59/09 P Hasbro v Enercon and OHIM [EU:C:2009:452] paras 4–9.

Parties 333 at first instance (other than Member States and EU institutions), (iii) privileged appellants (Member States and EU institutions), which may also appeal if they did not participate in the first instance proceedings. The fourth and the fifth categories are defined by Article 57 of the Statute (cf para 3.593): (iv) any person whose application to intervene has been dismissed by the General Court may appeal that dismissal; and (v) parties to interim measures proceedings may appeal against the order on interim measures.33 Category 1 appellants (main parties unsuccessful at first instance other than Member States and EU institutions). Article 56 of the Statute provides a general definition that ‘an appeal may be brought by any party which has been unsuccessful, in whole or in part, in its submissions’. Being unsuccessful means an unfavourable finding in the operative part of the judgment at first instance. Non-privileged appellants who were the main parties to the first instance case must show an interest to act (cf para 3.609).

3.603

Category 2 appellants (interveners unsuccessful at first instance other than Member States and EU institutions). For interveners at first instance, the fact that the main party they supported is unsuccessful opens the possibility to lodge an appeal or a cross-appeal. Article 56 of the Statute specifies that interveners other than Member States and EU institutions (non-privileged appellants) may bring such an appeal only where the decision of the General Court directly affects them. Whereas direct and existing interest in the result of the case was a precondition for them to become interveners at first instance (cf para 5.245 et seq), this additional rule relates to whether such an interest persists with regard to changing a part of the judgment specifically affecting them. It overlaps with the general condition that non-privileged appellants must show an interest to act (cf para 3.609). It should be noted that there can also be non-privileged parties who wish to join as interveners only at the appeal stage. These must show a direct and existing interest in the result of the appeal proceedings (cf para 3.613).

3.604

Category 3 appellants (privileged appellants: Member States or EU institutions). Normally, if a Member State or an EU institution (privileged appellants) has an interest in the litigation, it already participates as a main party or an intervener in the litigation at first instance, and this gives them a possibility to appeal in the same way as any other party if they are unsuccessful at least on a part of their claims. In addition, Article 56(3) of the Statute provides that, save in staff cases, ‘an appeal may also be brought by Member States and institutions of the Union which did not intervene in the proceedings before the General Court’. This provision opens the right to appeal for privileged appellants even if they did not participate in the first instance proceedings either as a main party or an intervener. The Court of Justice also deduced from this rule that, whether or not the privileged appellant was a main party (or an intervener) in the first instance proceedings, it does not need to show an interest in bringing the appeal (cf para 3.609). This allows privileged appellants to submit heads of claim, pleas in law and arguments which do not necessarily benefit them directly in a given case, but which may serve, for example, the general interest of creating consistency in Union law or justify their approach in other parallel cases.34 On the other hand, under Article 56(2) of the Statute, appellants may only be parties who were at least partially unsuccessful at first instance. This wording suggests that a privileged party may be an appellant (i) if it did not participate in the first instance proceedings or (ii) if it participated but

3.605

33 Interim measures may be adopted pursuant to Arts 278, 279 and 299 TFEU or Arts 157 and 164 of the Euratom Treaty (cf Chapter 5.2. Interim Measures). 34 In this regard, see Case C-49/92 P Commission v Anic Partecipazioni [EU:C:1999:356] paras 171–172.

334 Appeals was at least partially unsuccessful in its claims. It follows that a privileged party may not appeal a judgment if it participated in the first instance proceedings (as a main party or an intervener) and was entirely successful in each claim. Where the privileged party wishes to challenge only the reasoning of a judgment that was decided entirely in its favour, it can do so as a respondent by requesting a substitution of reasoning (cf para 3.628) without any need to show an interest to act. 3.606

Category 4 appellants (any person whose application to intervene has been dismissed by the General Court). Persons to whom the General Court refused to grant a leave to intervene may appeal the order that contains the dismissal, in accordance with Article 57 of the Statute. In these cases, the grounds for the dismissal of the application for a leave to intervene are irrelevant and may include a procedural vice, such as missing the deadline to intervene.

3.607

Category 5 appellants (parties to interim measures proceedings). Parties to interim measures proceedings may appeal the order issued by the President of the General Court in which the President allows or dismisses the application for interim measures.35 In these cases, the procedural rules do not explicitly foresee that an appeal may be brought by an unsuccessful party, but the general requirement of an interest to act (cf para 3.609) may prevent appeals by fully successful non-privileged parties. Of course, in such cases the degree of success may be difficult to measure, and the possibility of appeal should be open to a party that has achieved the suspension of the act but is not satisfied with other interim measures (such as, in competition cases, payment of a fine by instalments during the period of suspension) ordered by the President of the General Court. (ii) Conditions of Admissibility for Non-Privileged Appellants

3.608

Concept of a party. Article 56 of the Statute provides that an appeal can be brought by ‘any party which has been unsuccessful, in whole or in part, in its submissions’. The concept of a party refers to the same legal entity, or its successor in law, as the one participating in the first instance proceedings. In Electrabel and Dunamenti Erőmű, the Court of Justice rejected as inadmissible the appeal by an entity that was not a party at first instance, even if it had belonged to the same undertaking as the applicant at the time of lodging the application before the General Court.36

3.609

Legal interest in bringing the appeal (interest to act). Non-privileged appellants, ie appellants other than Member States and EU institutions, must have an interest in bringing proceedings. That interest is present if the appeal is likely, if successful, to procure an advantage for the party bringing it.37 If there is no interest to act at the time of lodging the appeal, the appeal is inadmissible.38 Even if an appellant has a general interest to act for some of its pleas, other pleas may be inadmissible, ineffective or devoid of purpose if they cannot benefit the appellant (but only another party),39 if they cannot lead to the setting aside of the judgment or if they contradict a previous

35 See, eg Order of 6 April 2006 in Case C-130/06 P(I) An Post v Deutsche Post [EU:C:2006:248] paras 6–12. 36 Case C-357/14 P Electrabel and Dunamenti Erőmű v Commission [EU:C:2015:642] paras 26–31. 37 Case C-19/93 P Rendo and Others v Commission [EU:C:1995:339] para 13; Order of 25 January 2001 in Case C-111/99 P Lech Stahlwerke v Commission [EU:C:2001:58] para 18; Order 24 October 2013 in Case C-593/12 P Lancôme v OHIM [EU:C:2013:707] paras 13–14 and the case law cited. 38 See, eg Order of 17 December 2015 in Joined Cases C-53/15 P to C-56/15 P Moreda-Riviere Trefilerías v Commission (prestressing steel cartel) [EU:C:2015:839] paras 24–37; Case C-174/99 P Parliament v Richard [EU:C:2000:412] para 33. 39 Joined Cases C-201/09 P and C-216/09 P ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others (steel beams cartel) [EU:C:2011:190] para 83.

Parties 335 statement made by the appellant.40 The Court of Justice may examine the presence of an interest to act ex officio.41 This issue arises quite frequently where the appellant’s action for annulment was dismissed at first instance, and the Court of Justice must verify whether the interest to annulment is still present at the appeal stage, bearing in mind the possible repeal or replacement of certain measures in the meantime.42 Therefore, depending on the context, the case law developed in the field of actions for annulment may be transposable to appeals (cf para 3.109 et seq). No need to adjudicate. If the interest to act was present at the time of lodging the appeal but it disappeared during the appeal proceedings, the Court of Justice will issue an order that there is no need to adjudicate and will close the case43 (cf Section 5.7.2. No Need to Adjudicate).

3.610

Retrospective examination of standing to bring the first instance action. If the General Court did not examine the admissibility in respect of all the applicants in the first instance proceedings, given that at least one of them had standing44 (cf Section 3.1.4. Applicants and Standing), the right to appeal of all the other parties is not automatic. The Court of Justice may verify ex post whether they had standing before the General Court.45

3.611

3.6.3.2. Respondents Respondents. The respondents are designated by an appeal, in the sense that all the other parties (defendants, applicants, interveners46) to the relevant case before the General Court having an interest in the appeal being allowed or dismissed (cf para 3.609) may lodge a response to that appeal.47 The same applies to respondents to a cross-appeal.48 The roles may also switch, since the respondents may lodge, in relation to the same first instance decision, their own appeal (if partly unsuccessful at first instance) or a cross-appeal, or both.49 Privileged parties (Member States and EU institutions) do not need to show such an interest in order to become respondents (cf para 3.605).

40 Venire contra factum proprium; see Order of 25 October 2007 in Case C-495/06 P Nijs v Court of Auditors [EU:C:2007:644] paras 52–56; Order of 24 June 2010 in Case C-117/09 P Kronoply v Commission [EU:C:2010:370] para 44. 41 Case C-19/93 P Rendo and Others v Commission [EU:C:1995:339] para 23; Case C-535/06 P Moser Baer India v Council [EU:C:2009:498] para 24. 42 See, eg Case C-535/06 P Moser Baer India v Council [EU:C:2009:498] para 24. 43 Order of 24 October 2013 in Case C-593/12 P Lancôme v OHIM [EU:C:2013:707] paras 13–14: ‘In order for an appellant to have an interest in bringing appeal proceedings, the appeal must be likely, if successful, to procure an advantage for it … In the present case, it is not disputed that, as a consequence of Lancôme’s surrender of the Community mark COLOR FOCUS, the proceedings for a declaration of invalidity in respect of that mark have been brought to an end, since none of the parties has demonstrated any interest in pursuing the present proceedings.’ See also Case C-269/12 P Cañas v Commission [EU:C:2013:415] paras 15–17: the interest pursued by an applicant remains in place as long as it could be a basis for a damages claim. 44 In accordance with the CIRFS case law: Case C-313/90 CIRFS and Others v Commission [EU:C:1993:111] para 31. 45 Order of 15 April 2010 in Case C-517/08 P Makhteshim-Agan Holding and Others v Commission [EU:C:2010:190] paras 50–55. 46 See, eg the bank interveners at first instance that became respondents on appeal in Case C-382/12 P MasterCard and Others v Commission [EU:C:2014:2201] and Case C-67/13 P Groupement des cartes bancaires (CB) v Commission [EU:C:2014:2204] paras 14 and 17. By this judgment, the Court of Justice clarified the meaning of the term ‘party’ in Art 172 of the CJ RoP so as to include interveners. 47 CJ RoP, Art 172. 48 CJ RoP, Art 179. 49 See, eg Joined Cases C-239/11 P, C-489/11 P and C-498/11 P Siemens and Others v Commission (gas insulated switchgear cartel) [EU:C:2013:866].

3.612

336 Appeals

3.6.3.3. Interveners 3.613

Interveners. The interveners at first instance are entitled to submit a response to the appeal lodged by other parties, thus they are respondents and not interveners in appeal proceedings.50 In addition, parties who did not participate in the first instance proceedings may also become interveners on appeal. To that effect, they must submit an application for leave to intervene51 within one month (and not six weeks, as in direct actions) from the publication of the notice on the appeal in the Official Journal.52 Natural or legal persons, including bodies, offices and agencies of the EU must show their direct and existing interest in the result of the appeal case, under the same test as the one applied to the grant of a leave to intervene in first instance cases (cf para 5.245 et seq).53 Privileged interveners (Member States and EU institutions) do not need to show such an interest.54 If the leave to intervene is granted, the intervener may submit a statement in intervention, which must be limited to supporting the form of order sought by one of the main parties55 (cf para 5.292).

3.6.4. Formal Requirements and Procedural Aspects 3.614

Formal requirements. The appeal must comply with the essential formal requirements laid down in Article 168 of the CJ RoP (cf paras 4.411–4.417). The decision of the General Court must be referred to in the appeal. While the procedure in appeals is regulated in the CJ RoP separately from direct actions, many provisions on the formal requirements regarding direct actions are applicable (cf para 4.414). Importantly, as of 1 May 2019, in appeals brought against decisions of the General Court concerning decisions of Boards of Appeal, a request for the appeal to be allowed to proceed must be annexed (cf para 4.417). Furthermore, as regards all the appeal cases, Article 169(2) of the CJ RoP provides that ‘The pleas in law and legal arguments relied on shall identify precisely those points in the grounds of the decision of the General Court which are contested’. The appeal must also comply more generally with the requirements of clarity and precision (cf para 4.418). Failure to fulfil these requirements renders the appeal inadmissible, whole or in part.

3.615

Renunciation of the right to appeal. The clear and unconditional waiver or renunciation of a right to appeal may render a subsequent appeal inadmissible.56 In addition, an appeal already lodged may be definitively withdrawn. It must be emphasised that the mere compliance with the judgment of the General Court is not a renunciation of the right to appeal since appeals, as a rule, do not have a suspensory effect57 (cf para 3.585).

3.616

Cross-appeal inadmissible if only used to question admissibility of the appeal. A cross-appeal not directed against the first instance judgment itself but only asking to dismiss as inadmissible

50 CJ RoP, Art 172. The term ‘party’ includes interveners. See, eg the bank interveners at first instance that became respondents on appeal in Case C-382/12 P MasterCard and Others v Commission [EU:C:2014:2201] and Case C-67/13 P Groupement des cartes bancaires (CB) v Commission [EU:C:2014:2204] paras 14 and 17. 51 CJ RoP, Art 130. 52 CJ RoP, Art 190(2). 53 Statute, Art 40. 54 Statute, Art 40(1). Member States and EU institutions may also choose to appeal instead of intervening (cf para 3.605). 55 Statute, Art 40; CJ RoP, Arts 129(1) and 132(2)(a). 56 Case T-404/06 P ETF v Landgren [EU:T:2009:313] para 80. 57 Case T-20/09 P Commission v Marcuccio [EU:T:2011:257] para 33.

Grounds for Review 337 the appeal of the other party was found inadmissible.58 Such pleas or exceptions of inadmissibility should instead be raised in the response to the appeal and not in the form of a cross-appeal.

3.6.5. Time Limits Time limits for lodging the appeal. The time limits open for lodging appeals fall into the category of procedural time limits to bring or join proceedings (cf para 4.75). Therefore, (i) 10 days are added automatically on account of distance for the purposes of the calculation of the end date; (ii) they cannot be extended; and (iii) compliance is examined ex officio by the Court of Justice.59 Missing the time limit to bring the appeal leads to the manifest inadmissibility of the appeal,60 unless unforeseeable circumstances or force majeure is proven (cf paras 4.95–4.97). The Statute specifies the deadline for lodging appeals as regards each type of appealed decision:

3.617

i) General deadline: two months plus 10 days. Under Article 56 of the Statute, ‘An appeal may be brought before the Court of Justice, within two months [plus 10 days on account of distance] of the notification61 of the decision appealed against, against final decisions of the General Court and decisions of that Court disposing of the substantive issues in part only or disposing of a procedural issue concerning a plea of lack of competence or inadmissibility’. ii) Interim measures: two months plus 10 days. Under Article 57 of the Statute, parties to interim measures proceedings may lodge an appeal against the decision of the General Court on interim measures within two months (plus 10 days on account of distance) from the notification of that decision. iii) Interventions: two weeks plus 10 days. A specific deadline is defined in Article 57 of the Statute, under which ‘Any person whose application to intervene has been dismissed by the General Court may appeal to the Court of Justice within two weeks [plus 10 days on account of distance] from the notification of the decision dismissing the application’.

3.6.6. Grounds for Review 3.6.6.1. General Grounds for appeal. Article 256(1) TFEU provides that decisions given by the General Court may be subject to a right of appeal to the Court of Justice on points of law only. Furthermore, under Article 58 of the Statute, An appeal to the Court of Justice shall be limited to points of law. It shall lie on the grounds of lack of competence of the General Court, a breach of procedure before it which adversely affects the interests of the appellant as well as the infringement of Union law by the General Court.

The parties and the Court of Justice are not obliged to explicitly categorise pleas in law as falling within one of these grounds since all three are reviewable points of law. There is also an overlap

58 Case C-71/07 P Campoli v Commission [EU:C:2008:424] paras 40–43. 59 CJ RoP, Art 51. 60 CJ RoP, Art 181. 61 The judgment may be published on the website of the Court even before it is formally notified to the party, but even in that case the deadline to appeal runs from the day of the notification.

3.618

338 Appeals of the grounds since, arguably, the third ground of review (infringement of EU law) includes the first two. 3.619

Lack of competence. The lack of competence could be pleaded, for example, if the General Court ordered the defendant institution to adopt an act while its power relates only to annul acts, or if it ruled in a case where the Treaties and the Statute do not confer any competence on it.

3.620

Breach of procedure. The breach of procedure may relate, for instance, to the infringement of the GC RoP. Moreover, this ground was explicitly mentioned in the cases in which the Court of Justice held that the proceedings before the General Court were excessively long and thus the latter breached Article 47 of the Charter of Fundamental Rights.62 Excessively long first instance proceedings are unique among the grounds for appeal, since they do not result in the setting aside of the first instance judgment but may give rise to the non-contractual liability of the EU (cf para 3.435 in fine).63

3.621

Infringement of EU law by the General Court. The third ground for review in Article 58 of the Statute – infringement of Union law by the General Court – is the most frequently pleaded one in practice. It may concern, for example, the erroneous interpretation of a legal notion in the Treaties or in provisions of a legislative act, failure to comply with general principles of law or deficient motivation of the judgment under appeal (breach of the duty to give reasons). Most appeals are brought against decisions of the General Court that concern actions in which the annulment of an EU measure was sought, ie actions for annulment, staff cases with annulment claim and intellectual property cases. It must be emphasised that the appellant must show an infringement of EU law not in the contested act but in the appraisal of its legality by the General Court.

3.622

Fact-related issues. While Article 256(1) TFEU and Article 58 of the Statute limit appeals to points of law, certain fact-related errors may be reviewed by the Court of Justice (cf para 3.633); in particular, the distortion of evidence is a valid ground for setting aside the first instance judgment (cf para 3.634 et seq).

3.6.6.2. Identifying an Error of Law 3.623

General. Article 169(2) of the CJ RoP foresees that ‘the pleas in law and legal arguments relied on shall identify precisely those points in the grounds of the decision of the General Court which are contested’. In line with the rules on clarity and precision of appeals (cf para 4.418), the appellant must clearly state which aspects of the judgment or order under appeal he is criticising and indicate its contested parts, together with the legal arguments supporting those complaints.64 Inobservance of this requirement results in the inadmissibility of the appeal as a whole or of the affected pleas in law.65

3.624

A mere reiteration of first instance arguments is inadmissible. The requirement of identifying an error of law in the judgment or order under appeal is not met if a party merely reiterates the previous claims rejected by the General Court in the judgment under appeal. This is because the appeal is directed not against the act whose annulment was sought at first instance, but against

62 Case C-385/07 P Der Grüne Punkt – Duales System Deutschland v Commission [EU:C:2009:456] para 176; Case C-58/12 P Groupe Gascogne v Commission (plastic bags cartel) [EU:C:2013:770] para 66. 63 Case C-58/12 P Groupe Gascogne v Commission (plastic bags cartel) [EU:C:2013:770] para 83. 64 Case C-369/09 P ISD Polska and Others v Commission [EU:C:2011:175] paras 66–67 and the case law cited. 65 Case C-248/99 P France v Monsanto and Commission [EU:C:2002:1] para 69.

Grounds for Review 339 the General Court’s decision. Repeating first instance arguments without criticising the judgment itself is contrary to Article 169(2) of the CJ RoP cited above (cf para 3.623). Furthermore, the Court of Justice has also declared inadmissible the request for a second assessment of the case at first instance.66 In appeals regarding actions in which annulment was sought, this means that the arguments need to be directed against the judgment, even if the General Court simply agrees with the institution’s or body’s legal assessment as set out in the contested act. Entirely new pleas raised on appeal are inadmissible. On the other hand, submitting a totally new plea on appeal and changing the subject matter of the dispute as compared to the first instance case is also inadmissible, even if it were otherwise a valid legal plea. Article 170(1) of the CJ RoP provides in this regard that ‘the subject matter of the proceedings before the General Court may not be changed in the appeal’. The explanation of this rule is that the pleas in law must be directed against the judgment or order under appeal, and if the arguments were not submitted to the General Court, it had no opportunity to assess them, meaning that it could commit no error in their regard. For instance, in the field of competition law, if an undertaking initially only challenged the finding of an infringement to competition rules in the contested decision, it cannot also challenge the setting of the fine on appeal. Likewise, if the initial plea put forward at first instance related to the standard of proof, it cannot validly be supplemented or replaced by a plea related to equal treatment on appeal. Raising such entirely new pleas is contrary to the settled case law.67

3.625

Exception: matters of public policy may be raised on appeal even if they are entirely new pleas. Certain pleas may be matters of public policy that can be raised both at first instance and on appeal by the Courts of their own motion. When these pleas are raised on appeal either by one of the parties or by the Court of Justice, they are an exception to the rule that entirely new pleas or arguments may not be put forward on appeal (cf para 3.626). The underlying assumption is that the General Court erred in law when it did not raise such a plea ex officio at first instance (cf paras 3.244 and 3.257). Such matters of public policy are inter alia questions regarding the respect of the deadline to lodge an application before the General Court,68 whether the applicant had standing to initiate the first instance case,69 whether the institution had the competence to adopt the challenged act70 or whether it followed the right procedure.71

3.626

New pleas related exlusively to the General Court’s proceedings or reasoning are admissible. Some pleas in law, by their nature, may be raised only on appeal for the first time, since they concern exclusively the proceedings or the reasoning of the General Court and are thus unrelated to the act contested at first instance. The rule that no new pleas in law may be raised on appeal is therefore not applicable to them. Such matters include pleas drawn from the insufficiency or

3.627

66 See, eg Case C-352/98 P Bergaderm and Goupil v Commission [EU:C:2000:361] paras 34–35; Case C-76/01 P Eurocoton and Others v Council [EU:C:2003:511] paras 46–47; Case C-131/03 P Reynolds Tobacco and Others v Commission [EU:C:2006:541] paras 49–51. 67 See, eg Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission (pre-insulated pipes cartel) [EU:C:2005:408] para 165; Case C-266/05 P Sison v Council [EU:C:2007:75] para 95; Case C-295/12 P Telefónica SA v Commission [EU:C:2014:2062] para 99; Case C-597/13 P Total v Commission (candle wax cartel) [EU:C:2015:613] para 22. 68 Case 227/83 Moussis v Commission [EU:C:1984:276] para 12; Order of 25 November 2008 in Case C-501/07 P S.A.BA.R. v Commission [EU:C:2008:652] para 19. 69 Case C-176/06 P Stadtwerke Schwäbisch Hall and Others v Commission [EU:C:2007:730] para 18. 70 C-210/98 P Salzgitter v Commission [EU:C:2000:397] para 56. 71 Joined Cases T-300/05 and T-316/05 Cyprus v Commission (transitional measures in the sugar sector) [EU:T:2009:380] para 206.

340 Appeals inconsistency (contradictions) of the reasoning in the judgment or order under appeal, which may also be raised by the Court of Justice of its own motion. Other examples include pleas in law related to the composition of the General Court72 and those concerning the excessive duration of the first instance proceedings.73 It can be safely assumed that all pleas in law related to the second ground of review (breach of procedure by the General Court) belong to this category. 3.628

A claim to substitute reasoning. A claim regarding the substitution of reasoning (substitution de motifs) is another type of plea that may be made on appeal, aiming specifically to change the reasoning of the judgment under appeal but not the conclusion in its operative part.74 This is not an independent submission, but may form part of an appeal, response or intervention (unlikely in replies, rejoinders, cross-appeals and responses to cross-appeals since the parties had already had another opportunity to make these remarks). This is a notion developed in the case law and there is no mention of it in the CJ RoP.

3.629

Consequence given to an illegality is challengeable on appeal. A plea related to the conclusion drawn by the General Court from an established illegality is an admissible legal matter on appeal and does not change the subject matter of the procedure, since it criticises the solution chosen in the first instance judgment.75 Therefore, for example, in the context of an action for annulment, the appellant is allowed to argue that the illegality found by the General Court in the contested act did not justify the total or partial annulment of the latter.

3.630

Heads of claim: asking the Court of Justice to order the institution to adopt an act or to impose an injunction is inadmissible. As in first instance proceedings, it is inadmissible to ask the Court, on appeal, to order the institution or body to adopt a certain act or to impose an injunction on it.76 This does not constitute a valid head of claim as the requested measure goes beyond the powers of the Court as defined in the Treaty. Although the institution or body is obliged to draw the conclusions from an annulment, it cannot be obliged to adopt a new act. In case of inaction on behalf of the institution or body, an action for failure to act and/or an action for damages may be brought (cf para 3.336).

3.631

Error of law and the General Court’s unlimited jurisdiction regarding competition fines. In the competition law field, a plea related to the exercise of the General Court’s unlimited jurisdiction in reviewing the fine can be an admissible error of law, eg if it relates to proportionality,77 equal treatment,78 duty to state reasons,79 error related to joint liability,80 economic succession,81

72 Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [EU:C:2008:375] paras 46–49. 73 Case C-385/07 P Der Grüne Punkt – Duales System Deutschland v Commission [EU:C:2009:456] para 176; Case C-58/12 P Groupe Gascogne v Commission (plastic bags cartel) [EU:C:2013:770] para 66. 74 See, eg Joined Cases C-247/11 P and C-253/11 P Areva and Others v Commission (gas insulated switchgear cartel) [EU:C:2014:257] para 155. 75 Case C-441/11 P Commission v Verhuizingen Coppens (Belgian removal services cartel) [EU:C:2012:778] paras 37–39; Case C-295/07 P Commission v Département du Loiret [EU:C:2008:707] paras 94–99. 76 See, eg Case C-353/01 P Mattila v Council and Commission [EU:C:2004:42] para 15. 77 Case C-444/11 P Team Relocations v Commission (Belgian removal services cartel) [EU:C:2013:464] paras 175–178. 78 Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission (pre-insulated pipes cartel) [EU:C:2005:408] paras 321–323. 79 Order of 2 February 2012 in Case C-404/11 P Elf Aquitane v Commission (sodium chlorate cartel) [EU:C:2012:56] paras 40–42; Case C-652/11 P Mindo v Commission (Italian raw tobacco cartel) [EU:C:2013:229] paras 29–57. 80 Joined Cases C-247/11 P and C-253/11 P Areva and Others v Commission (gas insulated switchgear cartel) [EU:C:2014:257] para 155. 81 Case C-434/13 P Commission v Parker Hannifin Manufacturing and Parker-Hannifin (marine hose cartel) [EU:C:2014:2456] paras 39–67.

Grounds for Review 341 recidivism,82 breach of the limitation period (prescription),83 breach of the rule that the fine cannot exceed 10 per cent of the undertaking’s turnover84 or interpreting other provisions of Regulation 1/2003.85 However, a mere challenge of the final amount on equity grounds86 is inadmissible as it does not relate to an error of law.

3.6.6.3. Fact-Related Issues (i) General The restriction of appeal to points of law: origin and rationale. Article 256(1) TFEU and Article 58 of the Statute provide that decisions given by the General Court may be appealed on points of law only (cf para 3.618). The underlying idea behind this limitation is to define the role of the Court of Justice as a cassation court and not an appeal court that reviews the facts. The reduction of the workload of the Court of Justice thereby allowing it to focus on the more important questions of law is another reason behind the rule (cf para 3.580). Conversely, the Court of Justice respects the exclusive jurisdiction of the General Court to find and assess facts (save for exceptional situations like distortion of evidence) so that the lower court can adequately fulfil its function. Although the limitation of appeals to points of law leaves the General Court as the first and last instance deciding on facts, it must be remembered that before the creation of the latter the Court of Justice alone dealt with the cases on facts and law, without any possibility of appeal.

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Fact-related issues raised as points of law – distortion of evidence, legal characterisation of facts, observance of rules on evidence. The Court of Justice has interpreted the scope of the prohibition to appeal on questions of fact by considering that certain types of fact-related issues are admissible grounds for appeal. First, distortion of evidence is an admissible ground for appeal. The applicant must show that a substantive inaccuracy of the General Court’s factual findings is apparent from the documents submitted to it87 (cf para paras 3.634 et seq). Secondly, the Court of Justice may also review on appeal the legal characterisation of the facts by the General Court and the legal conclusions it has drawn from them.88 Thirdly, the review on appeal may also concern the question whether the rules relating to the burden of proof and the taking of evidence have been observed by the General Court, since the Court of Justice has the power to review on appeal a breach of procedure by the General Court.89 However, even if a plea is formulated in such a way as to target the standard or burden of proof or the rules of assessing the evidence, the Court may still dismiss it outright as a claim for re-examination of the facts.90 Since distortion of evidence is quite frequently relied on, the case law will be presented in detail below.

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82 Joined Cases C-93/13 P and C-123/13 P Commission v Versalis and Eni (chloroprene rubber cartel) [EU:C:2015:150] paras 86–103. 83 Joined Cases C-201/09 P and C-216/09 P ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others (steel beams cartel) [EU:C:2011:190] paras 141–151. 84 Case C-408/12 P YKK and Others v Commission (fasteners cartel) [EU:C:2014:2153] paras 55–68. 85 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). 86 Case C-359/01 P British Sugar v Commission [EU:C:2004:255] para 48. 87 Case C-287/11 P Commission v Aalberts Industries and Others (copper alloy fittings cartel) [EU:C:2013:445] para 47. 88 Case C-393/13 P Council v Alumina [EU:C:2014:2245] paras 17–18. See also Joined Cases C-403/04 P and C-405/04 P Sumitomo Metal Industries and Nippon Steel v Commission (seamless steel tubes cartel) [EU:C:2007:52] para 40; Case C-287/11 P Commission v Aalberts Industries and Others (copper alloy fittings cartel) [EU:C:2013:445] para 47. 89 Statute, Art 58. See, eg Joined Cases C-239/11 P, C-489/11 P and C-498/11 P Siemens and Others v Commission (gas insulated switchgear cartel) [EU:C:2013:866] para 39. 90 Case C-287/11 P Commission v Aalberts Industries and Others (copper alloy fittings cartel) [EU:C:2013:445] paras 46–48.

342 Appeals (ii) Distortion of Evidence 3.634

The concept of distortion of evidence. Distortion of evidence is an exception to the rule that appeals may only concern points of law. Its concept was created and elaborated by the case law. Its meaning is circumscribed by a number of case law formulations: i) Requirement to indicate the errors precisely in the appeal: ‘the appellant must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion’.91 ii) An evident error clearly appearing from the existing evidence: ‘There is such distortion where, without recourse to new evidence, the assessment of the existing evidence appears to be clearly incorrect.’92 Similarly, ‘a distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence’,93 as the Court of Justice only conducts a marginal review when an appellant complains that the General Court distorted the evidence.94 iii) Manifest excess of the limits of assessing the evidence: the appellant must show that the General Court manifestly exceeded the limits of a reasonable assessment of the evidence. Therefore, for a plea based on distortion of evidence, it is not enough to suggest a reading different from that adopted by the General Court of the various elements of evidence.95 iv) A legal conclusion needs to be drawn from the claimed distortion of evidence: the appellant has to show that the distortion of evidence had a bearing on the solution that the General Court gave to the case,96 meaning that the distortion has to be significant enough for setting aside the judgment at least in part. For example, in competition cases, the appellant may submit that the evidence relating to its participation in a cartel or its awareness of the overall scope of that cartel was distorted by the General Court and then, on that basis, it may put forward that the General Court committed errors of law in the finding of an infringement, in the determination of the fine or where it annulled the contested decision only partially instead of a total annulment. v) The interpretation of national law by the General Court is a question of fact: ‘Accordingly, as for the examination, in the context of an appeal, of the General Court’s assessment with regard to national law, the Court of Justice has jurisdiction only to determine whether that law was distorted …’97 vi) The distortion of the meaning of the challenged act (which is ‘evidence’ in the broad sense) may give rise to a legal error,98 which the Court sometimes qualifies as the General Court substituting its own reasoning to that of the author of the act.99 91 Case C-287/11 P Commission v Aalberts Industries and Others (copper alloy fittings cartel) [EU:C:2013:445] para 50. See also Joined Cases C-293/13 P and C-294/13 P Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce (banana cartel) [EU:C:2015:416] paras 121–122. 92 Case C-287/11 P Commission v Aalberts Industries and Others (copper alloy fittings cartel) [EU:C:2013:445] para 51. 93 Case C-559/12 P France v Commission (State aid for La Poste) [EU:C:2014:217] para 80. 94 Joined Cases C-239/11 P, C-489/11 P and C-498/11 P Siemens and Others v Commission (gas insulated switchgear cartel) [EU:C:2013:866] para 41. 95 Case C-287/11 P Commission v Aalberts Industries and Others (copper alloy fittings cartel) [EU:C:2013:445] para 52; Joined Cases C-293/13 P and C-294/13 P Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce (banana cartel) [EU:C:2015:416] para 125. 96 See, eg Case T-17/08 P Andreasen v Commission [EU:T:2010:374] paras 56, 76. 97 Case C-559/12 P France v Commission (State aid for La Poste) [EU:C:2014:217] para 79; Case C-181/11 P Cetarsa v Commission [EU:C:2012:455] para 59. 98 Case C-197/99 P Belgium v Commission (State aid in steel sector) [EU:C:2003:444] para 67. 99 See, eg Case C-164/98 P DIR International Film and Others v Commission [EU:C:2000:48] paras 43–45; Joined Cases C-172/01 P, C-175/01 P, C-176/01 P and C-180/01 P International Power and Others v Commission [EU:C:2003:534] paras 153–161; Case C-399/08 P Commission v Deutsche Post [EU:C:2010:481] paras 63–68.

Grounds for Review 343 Distortion of evidence in practice. The claims of distortion of evidence most often relate to the interpretation of the evidence, without the content of the body of evidence itself being contentious. At the same time, in certain cases, the General Court may omit to take into account certain items of evidence, and this equally gives rise to distortion of evidence100 and possibly to breach of the duty to give adequate reasoning. In any event, appealing on distortion of evidence is an endeavour with limited chances of success. One difficulty is that the standard of proof and the interpretation of the body of evidence are legal rules, yet they also relate to assessing the facts. Normally, a distortion is easier to demonstrate when it relates to a factual matter that does not even need assessment or interpretation. For instance, in the context of the factual appraisal of a cartel, it is easier to demonstrate that something occurred or not than the subjective awareness of a party about the scope of the infringement.

3.635

Illustrations for distortion of evidence. In spite of the difficulties regarding the demonstration of distortions of facts, the Courts, on appeal, upheld such pleas in a number of cases. In all the examples presented here, the first instance court drew the opposite conclusion from what the facts actually showed. Thus, for instance, in Archer Daniels Midland, the General Court erred by stating that the company Roquette drafted a note during a meeting, when in reality that document was not written by Roquette, but merely supplied by it, and it was written after that meeting (however, this distortion was not significant enough to set aside the judgment under appeal).101 In PKK and KNK, the General Court drew the incorrect conclusion from the evidence that PKK (an armed Kurdish organisation) had proclaimed its dissolution, when in reality PKK had only stated that it progressively abandoned violent means of action in favour of other means of action. The judgment was set aside on this ground.102 Further, in Industrias Químicas del Vallés, the General Court distorted the clear sense of the evidence by finding that the Commission had in no way changed its position on the need for the applicant to produce a ‘complete dossier’ in support of its application for registration of metalaxyl (this successful plea was sufficient for setting aside the judgment).103 Other examples include the trade mark case Pi-Design, where the General Court incorrectly stated that the Office for Harmonisation in the Internal Market (OHIM) did not take into account the actual use made of the earlier signs,104 when in fact it did. This error justified setting aside the first instance judgment. In Samper, a staff case, the General Court committed a twofold distortion by omitting to take into account, first, a factor relevant for the promotion of an official which had been set out in a note of the appointing authority, and secondly, the minutes of a promotion committee (this was sufficient to set aside the judgment).105 In Sison, an access to documents case, the General Court erroneously stated that certain documents were submitted to the Council by third countries when in reality they were submitted by Member States. The Court of Justice held that this was a significant error; however, the validity of the judgment could be maintained on another ground, thus the distortion plea was ineffective106 (cf para 3.317 by analogy). Finally, in Stols, an appeal brought to the General Court in a staff case, the latter held that the Civil Service Tribunal had relied on an incorrect assumption when analysing the evidence relevant for the evaluation of an official and this caused a distortion. This finding was sufficient to set aside the first instance judgment.107

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100 Case

C-277/01 P Parliament v Samper [EU:C:2003:196] paras 40–50. C-510/06 P Archer Daniels Midland v Commission (sodium gluconate cartel) [EU:C:2009:166] paras 133–136. 102 Case C-229/05 P PKK and KNK v Council [EU:C:2007:32] paras 37–54. 103 Case C-326/05 P Industrias Químicas del Vallés v Commission [EU:C:2007:443] paras 56–69. 104 Joined Cases C-337/12 P to C-340/12 P Pi-Design and OHIM v Yoshida Metal Industry [EU:C:2014:129] paras 62–64. 105 Case C-277/01 P Parliament v Samper [EU:C:2003:196] paras 40–50. 106 Case C-266/05 P Sison v Council [EU:C:2007:75] paras 67–68. 107 Case T-175/09 P Council v Stols [EU:T:2010:534] para 45. 101 Case

344 Appeals 3.637

Misconstruction of pleadings by the General Court is not a distortion of evidence. The distortion of evidence plea cannot be validly raised if the General Court merely misconstrued a party’s submission in the proceedings before it, if that misconstruction is unrelated to interpreting an item of evidence or the challenged act. That type of legal error, made by the General Court, relates rather to an error of reasoning108 or breach of rights of defence,109 which equally may lead to setting aside the judgment.

3.638

Circumventing the limitation of appeal to points of law by combining the distortion plea with other pleas? Since the limitation of the appeal to questions of law is a significant restriction on the type of pleas, many appellants try to find ways around it, with variable success. In particular, while distortion of evidence can be a self-standing appeal ground, in practice, several other types of pleas are combined with it, or squeezed under it, to increase the chance of admissibility of factrelated arguments. Examples include the Aalberts case, where the Commission submitted that the General Court infringed various rules on the burden of proof and procedural rules on evidence, distorted certain pieces of evidence and did not provide reasons for its factual assessment. This was summarily rejected as inadmissible by the Court of Justice by stating that, by that line of argument, the Commission is requesting the Court of Justice to carry out a fresh assessment of the facts.110 Likewise, in the French Beef case,111 the Court of Justice rejected the distortion pleas as inadmissible. The appellant FNCBV put forward that the General Court distorted the evidence by not taking account of essential aspects of documents cited and did not place them in their context. The Court held that, under cover of ‘distortion’, FNCBV was actually challenging the assessment made by the General Court of the documents’ content. In Siemens,112 the appellant unsuccessfully claimed distortion of evidence based on ‘purported principles … relating to the functioning of the memory and the psychology of witnesses, or the fact that individuals from an undertaking involved in the cartel may themselves have an interest in maximising the unlawful conduct of competitors and minimising their own liability’. This was held to be an inadmissible challenge of facts.

3.6.7. Result of the Proceedings 3.639

Consequences of a judgment or order dismissing the appeal. If the appeal is unsuccessful, the General Court’s judgment remains valid and, as a rule, the appellant bears the costs of the proceedings.

3.640

Consequences of a judgment upholding the appeal. If the appeal is well founded, the appealed decision is quashed and the Court of Justice may itself give the final judgment in the matter where the state of the proceedings so permits, or refer the case back to the General Court for

108 Case C-414/08 P Sviluppo Italia Basilicata v Commission [EU:C:2010:165] paras 53–58 (in that case the plea of error of reasoning in the judgment under appeal was rejected as unfounded). 109 Case C-78/03 P Commission v Aktionsgemeinschaft Recht und Eigentum [EU:C:2005:761] paras 44–50; Case C-176/06 P Stadtwerke Schwäbisch Hall and Others v Commission [EU:C:2007:730] paras 25–26. 110 Case C-287/11 P Commission v Aalberts Industries and Others (copper alloy fittings cartel) [EU:C:2013:445] paras 14, 46–48. 111 Joined Cases C-101/07 P and C-110/07 P Coop de France bétail et viande and Others v Commission [EU:C:2008:741] para 61. 112 Joined Cases C-239/11 P, C-489/11 P and C-498/11 P Siemens and Others v Commission (gas insulated switchgear cartel) C:2013:866] para 40.

Cross-Appeals 345 judgment.113 The General Court procedure for dealing with cases referred back is set out in Articles 215–219 of the GC RoP114 (cf Section 4.4.6. Procedure in Cases Referred Back to the General Court). An appeal judgment is binding from the date of its delivery.115 When a judgment of the General Court is set aside, it becomes as if it never had existed. Where the appellant is successful, the other party bears the costs. Effect on acts annulled at first instance. In a situation where the General Court had annulled an act of an institution or body (retrospectively from the date of its adoption), the setting aside of the annulment judgment normally again recreates the act from the adoption date. In cases where, in the meantime, the institution or body readopted the decision (eg if the annulment was on procedural grounds, cf para 3.331) and the original decision is revived on appeal, the second, readopted decision becomes invalid (even if it is not formally withdrawn). In the case of mergers, several decisions can coexist,116 since each relates to a separate notification and simply authorises but does not oblige the parties to carry out the transaction. The special rules on suspensory effect in the field of trade marks (cf para 3.525) entail that there cannot be multiple decisions on trade mark registration.

3.641

Excessively long first instance proceedings give rise to a damage claim. Where the Court of Justice states that the first instance proceedings were excessively long and the General Court breached Article 47 of the Charter of Fundamental Rights, the consequence of this illegality (breach of procedure) is not the setting aside of the first instance judgment but the possibility to bring an action for damages against the EU.117

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3.6.8. Cross-Appeals Special rules on cross-appeals. Cross-appeals are governed by the same rules as appeals, except for the following specificities: the deadline to submit a cross-appeal starts to run from the 113 Statute, Art 61. 114 When the case is sent back to the General Court, from a procedural perspective, the case does not start anew. The previous written submissions of the parties remain on file and the parties may request to submit observations on the consequences of the appeal judgment (GC RoP, Art 217). Thereafter, the General Court follows in essence its normal procedure and may organise a new oral hearing before rendering its second judgment (or order) in the matter. That second ruling may be subject to a second appeal. In these procedures, the costs accumulate: the General Court decides on the costs relating to the proceedings instituted before it and to the previous proceedings on the appeal before the Court of Justice (GC RoP, Art 219). 115 Whereas an order in an appeal case is binding from the date of its service to the parties (since it is not delivered in open Court); see CJ RoP, Arts 88 and 91. 116 In the Sony/BMG merger case, there were three decisions: the first annulled then revived approval decision, and the second and third approval decisions were based on new notifications. The events were as follows: by the judgment of 10 July 2008 in Case C-413/06 P Bertelsmann and Sony Corporation of America v Impala [EU:C:2008:392], the Court of Justice set aside the judgment of the General Court of 13 July 2006 in Case T-464/04 Impala v Commission [EU:T:2006:216] and referred the case back to the General Court. This meant that the Commission’s first merger decision to authorise the creation of a joint venture between Sony and BMG (Case COMP/M.3333 – Sony/BMG), which had been annulled by the General Court, became revived again and the General Court was ordered to assess it anew. Following the annulment judgment of 13 July 2006 in Case T-464/04, the Commission adopted a second merger decision, which was in turn challenged by Impala in Case T-229/08. Finally, the two procedures before the General Court became devoid of purpose when the Commission adopted a third merger decision following a new notification by the parties: see Order of 30 June 2009 in Case T-464/04 Impala v Commission [EU:T:2009:225] paras 26–32; Order of 30 September 2009 in Case T-229/08 Impala v Commission [EU:T:2009:378] paras 33–39. 117 Case C-58/12 P Groupe Gascogne v Commission (plastic bags cartel) [EU:C:2013:770] para 66; Case C-50/12 P Kendrion v Commission (plastic bags cartel) [EU:C:2013:771]; Case C-243/12 P FLS Plast v Commission (plastic bags cartel) [EU:C:2014:2006].

3.643

346 Appeals otification of the appeal by another party;118 it becomes devoid of purpose if the main appeal is n withdrawn or dismissed as manifestly inadmissible;119 it has to be submitted by a separate document from the response;120 there is no separate case number for a cross-appeal; and the Court rules on the appeal and the cross-appeals in the same judgment.121 Article 178(2) of the CJ RoP grants an additional possibility for a cross-appeal, which is missing from Article 169 of the CJ RoP on the form of order of main appeals: ‘[A cross-appeal] may also seek to have set aside an express or implied decision relating to the admissibility of the action before the General Court’. That provision contains a specific rule for cross-appeals, which differs from the rule applied to a principal appeal.122 While the Boehringer case law excludes a principal appeal on an implied decision relating to the admissibility,123 the CJ RoP allow a cross-appeal on it (cf para 3.599). 3.644

Joining appeals and cross-appeals? In a case where several parties lodge appeals and crossappeals against the same judgment, there is a multiplicity of procedures that may become difficult to follow and, in addition, confidentiality issues are raised by the entry of interveners. Joining the cases may be an attractive option for the Court to simplify the procedure, but certain parties may oppose the joinder, at least during the written and oral procedure.124

118 CJ RoP, Arts 172 and 176. 119 CJ RoP, Art 183. This is what happened, for example, to the Commission’s cross-appeals when the appeals from ThyssenKrupp against the judgment in Joined Cases T-144/07, T-147/07 to T-150/07 and T-154/07 ThyssenKrupp Liften Ascenseurs and Others v Commission (elevators cartel) [EU:T:2011:364] were withdrawn (to avoid the risk of a fine increase). See the orders removing the appeal cases from the register, eg Order of 8 May 2012 in Case C-503/11 P ThyssenKrupp Elevator CENE and ThyssenKrupp Fahrtreppen v Commission [EU:C:2012:277]; Order of 8 May 2012 in Case C-504/11 P ThyssenKrupp Ascenseurs Luxembourg v Commission [EU:C:2012:278] etc. 120 CJ RoP, Art 176(2). 121 See, eg Case C-382/12 P MasterCard and Others v Commission [EU:C:2014:2201], where the previous bank interveners lodged cross-appeals. 122 See the explanation given in the official proposal for the Rules of Procedure entitled ‘Draft rules of procedure of the Court of Justice’, submitted to the Council by the President of the Court of Justice on 30 May 2011, Document 11147/11, p. 122, https://data.consilium.europa.eu/doc/document/ST-11147-2011-INIT/en/pdf: ‘If a party has been successful before the General Court, he is not therefore permitted to bring an appeal against its decision, without prejudice, however, to the possibility for a party to challenge, in a cross-appeal, the General Court’s express or implied decision on the admissibility of the action brought before it.’ See also C Naômé, Le pourvoi devant la Cour de justice de l’Union européenne (Larcier, Brussels, 2016) paras 121, 124–126. 123 Case C-23/00 P Council v Boehringer [EU:C:2002:118] paras 48–52, 124 See, eg Order of 17 December 2015 in Joined Cases C-53/15 P to C-56/15 P Moreda-Riviere Trefilerías v Commission [EU:C:2015:839]. In this set of cases, the four applicants (which were held jointly liable in the Commission cartel decision by reason of belonging to the same undertaking) lodged four separate actions for annulment before the General Court against the original decision and also against the two amending decisions. Each of the four applicants had three parallel cases, which even overlapped in some pleas. The General Court, in its orders of 25 October 2014, rejected the applications in these 12 cases (T-426/10, T-575/10, T-440/12, T-427/10, T-576/10, T-439/12, T-428/10, T-577/10, T-438/12, T-429/10, T-578/10 and T-441/12) as manifestly inadmissible to the extent that they were directed against the first amending decision because the applicants lacked any legal interest to challenge it. The four entities lodged four separate appeals against these orders (C-53/15 P to C-56/15 P). The appeal cases were only joined for the purposes of the final ruling. In its order, the Court of Justice confirmed the General Court’s assessment.

3.7. Plea of Illegality [written by Viktor Luszcz1]

3.7.1. Overview Notion. The plea of illegality is a form of incidental review of EU acts of general application. It is not an independent judicial avenue; however, any party to a case opened before the EU Courts following a direct action, or to an intellectual property case (cf para 3.519), is allowed to plead the illegality of a provision of general application which has a direct legal connection with the subject matter of the case. It is mostly used in actions for annulment when the applicant claims that the contested act is unlawful as a result of the illegality of the act on which it is based. The result of a successful plea of illegality is that the provision of the act of general application at issue is inapplicable between the parties, ie it is not removed from the EU legal order. The effect of a successful plea of illegality is therefore inter partes, as opposed to the erga omnes effect of annulment under Articles 263 and 264 TFEU.

3.645

Article 277 TFEU. Article 277 TFEU (ex Article 241 TEC) reads as follows:

3.646

Notwithstanding the expiry of the period laid down in Article 263, sixth paragraph, any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the Union is at issue, plead the grounds specified in Article 263, second paragraph, in order to invoke before the Court of Justice of the European Union the inapplicability of that act.

Changes brought by the Lisbon Treaty. Article 241 TEC allowed parties to put forward pleas of illegality only against regulations adopted by the Parliament, the Council, the Commission and the European Central Bank (ECB). The replacement of the word ‘regulation’ by the term ‘act of general application’ in the Lisbon Treaty merely reflects pre-existing case law, as the Courts had already interpreted the term ‘regulation’ as an ‘act of general application’ well before the entry into force of that Treaty.2 Furthermore, the extension, in the FEU Treaty provision itself, of the possibility to raise a plea of illegality against acts of any institution, body, office or agency (throughout this book: institution or body)3 ensures coherence with other parts of the Treaty, in particular with the amended Article 263(1) TFEU (cf para 3.04).

3.647

Place in the system of incidental review. The plea of illegality and preliminary references on validity of EU acts together form the system of incidental review in the EU judicial system4 (cf para 1.11, cf paras 3.141–3.142, 3.191 and 3.692). Incidental review essentially means that the

3.648

1 Partner, Danubia Legal – Luszcz Law Firm. Attorney at law specialised in European and Hungarian competition and intellectual property law, member of the Budapest Bar. Previously worked 11 years as a référendaire at the General Court of the EU. 2 The origin of this case law being Case C-92/78 Simmenthal v Commission [EU:C:1979:53] paras 38–41. See M Wathelet and J Wildemeersch, Contentieux européen (Larcier, Brussels, 2014) 297. 3 Throughout this book, the term ‘institution or body’ denotes any institution, body, office or agency of the Union within the meaning of Arts 263(1) and 265(1) TFEU, while the term ‘EU institution’ is reserved for institutions of the Union listed in Art 13(1) TEU. 4 See also P Iannuccelli, ‘Articolo 277 TFUE’ (in: Codice dell’Unione Europea operativo ed. by C C Gialdino, Simone, Napoli, 2012) 2005.

348 Plea of Illegality illegality of an EU act is raised in a judicial procedure which is not an action in which the annulment of that act is directly sought (annulment can be directly requested in actions for annulment, staff cases with an annulment claim and intellectual property cases; cf para 3.519). In Telefónica,5 the Court of Justice summed up the functioning of incidental review as follows: Where responsibility for the implementation of [the act of general application at issue] lies with the institutions, bodies, offices or agencies of the European Union, natural or legal persons are entitled to bring a direct action before the European Union judicature against the implementing acts under the conditions stated in the fourth para of Article 263 TFEU, and to plead in support of that action, pursuant to Article 277 TFEU, the illegality of the basic act at issue [plea of illegality]. Where that implementation is a matter for the Member States, those persons may plead the invalidity of the basic act at issue before the national courts and tribunals and cause the latter to request a preliminary ruling from the Court of Justice, pursuant to Article 267 TFEU [preliminary references on validity].

3.649

Relationship between plea of illegality and preliminary references on validity. Case law rules related to the functioning of pleas of illegality and such rules on preliminary references on validity are often mutually transposable from one field to the other. A notable difference is, however, that a plea of illegality can only be raised against an act of general application, whereas there is no such restriction in preliminary rulings on validity.

3.650

A plea of illegality may only be raised in direct actions and in intellectual property cases, not in preliminary rulings. Despite the similar logic of the two avenues of incidental review, the Court of Justice made it clear in Nachi that no plea of illegality can be raised in preliminary ruling proceedings that concern the validity of an EU measure. This conclusion was somewhat loosely derived from the fact that in such proceedings, there is no action brought before the EU Courts, and that preliminary references on validity themselves allow for the incidental review of an EU act.6 Pleas of illegality may be raised in all types of direct actions (cf para 4.15)7 and in intellectual property cases (cf Chapter 3.58). There must be a link between the validity of the act of general application and the subject matter of the case (cf paras 3.657–3.661).

3.651

Non-independent judicial avenue. The possibility to raise a plea of illegality under Article 277 TFEU does not constitute an independent judicial avenue and may only be exercised incidentally in proceedings brought before the Courts pursuant to a separate provision of the Treaty.9 The non-independent nature of a plea of illegality means that if such a plea is raised by an applicant, it is only examined as to its merits if the application is admissible. In Polyelectrolyte Producers Group, the Courts considered, first, that the action for annulment was inadmissible because of their lacking competence and, in respect of some of the contested measures, because of the 5 Case C-274/12 P Telefónica v Commission [EU:C:2013:852] para 29, in the context of regulatory acts. 6 Case C-239/99 Nachi Europe [EU:C:2001:101] para 34. 7 Direct actions are (i) actions for failing to fulfil Treaty obligations brought under Art 258 TFEU (cf Chapter 2.1); (ii) actions for annulment brought under Art 263 TFEU (cf Chapter 3.1); (iii) actions for failure to act brought under Art 265 TFEU (cf Chapter 3.2); (iv) actions for damages brought under Art 268 TFEU (cf Chapter 3.3); (v) disputes between EU institutions or bodies and their civil servants (staff cases) foreseen in Art 270 TFEU (cf Chapter 3.4); and (vi) disputes where the jurisdiction of the Courts is provided for in an arbitration clause contained in a contract concluded by or on behalf of the EU under Art 272 TFEU. 8 Intellectual property cases (cf para 3.519) are actions brought against decisions of the Boards of Appeal of the European Union Intellectual Property Office and the Community Plant Variety Office. GC RoP, Art 1(2)(i) and GC RoP, Title IV ‘Proceedings related to intellectual property rights’ make it clear that intellectual property cases are not direct actions. 9 Case C-239/99 Nachi Europe [EU:C:2001:101] para 33; Joined Cases C-31/62 and C-33/62 Wöhrmann and Lütticke v Commission [EU:C:1962:49] para 507; Case C-33/80 Albini v Council and Commission [EU:C:1981:186] para 17; Joined Cases C-87/77, C-130/77, C-22/83, C-9/84 and C-10/84 Salerno and Others v Commission and Council [EU:C:1985:318] para 36; Order of 28 June in Case C-64/93 Donatab and Others v Commission [EU:C:1993:266] para 19.

Acts against Which a Plea of Illegality can be Raised 349 applicant’s lack of standing. The Courts inferred that, in these circumstances, the plea of illegality raised in support of the action for annulment was also inadmissible.10 Admissibility. The admissibility of a plea of illegality relates to that particular plea in the action (or in the defence), and not to the admissibility of the action as a whole. The main conditions of admissibility are as follows:

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i) The plea of illegality must concern the unlawfulness of an act of general application that is linked with the subject matter of the case (cf Section 3.7.2. Acts Against Which a Plea of Illegality Can Be Raised); ii) It must be filed by a party to the case, including interveners (cf Section 3.7.3. Parties); iii) It must comply with formal requirements (cf Section 3.7.4. Formal Requirements); iv) There is, however, no time limit within which it can be raised, provided that the action itself is lodged within other applicable time limits (cf Section 3.7.5. No Time Limit). Substance. The grounds for review are the same as in the case of actions for annulment (cf Section 3.7.6. Grounds for Review). The consequence of the finding that the act is unlawful is, however, not annulment but a declaration of inapplicability of the act between the parties to the case (cf Section 3.7.7. Effects of inapplicability).

3.653

3.7.2. Acts against Which a Plea of Illegality can be Raised 3.7.2.1. Acts of General Application Acts of general application. Under Article 277 TFEU, any act of general application can be incidentally challenged in a plea of illegality. A measure is an act of general application if it applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged generally and in the abstract11 (cf para 3.180 in the context of regulatory acts). As a rule, regulations and directives12 are acts of general application; the question whether they are legislative or non-legislative (inter alia classified as delegated or implementing) is not relevant in the context of a plea of illegality. Guidelines and communications can also be challenged via a plea of illegality insofar as they must, in principle, be followed by the institution or body that adopted them (cf para 3.296). Decisions may also be acts of general application. Thus, for instance, in Montessori, the Courts held that a Commission decision concerning State aid schemes fell into this category.13

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Acts of individual application are excluded. Conversely, acts which are truly of individual application are excluded from the scope of Article 277 TFEU. Furthermore, natural or legal persons may not challenge, in a plea of illegality, an act of general application which concerns them directly and individually, and which is thus assimilated to a decision of individual scope adopted in their regard, where they did not bring an action for annulment against the act in due time in

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10 Order of 8 December 2006 in Case C-368/05 P Polyelectrolyte Producers Group v Commission and Council [EU:C:2006:771] para 72. 11 Order of the General Court of 30 November 2009 in Case T-313/08 Veromar di Tudisco Alfio & Salvatore v Commission [EU:T:2009:477] para 38; Order of 6 September 2011 in Case T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council (Inuit I) [EU:T:2011:419] para 63. 12 Order of 14 December 2005 in Case T-369/03 Arizona Chemical and Others v Commission [EU:T:2005:458] para 50. 13 Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] paras 29–33; Case T-220/13 Scuola Elementare Maria Montessori v Commission [EU:T:2016:484] para 52.

350 Plea of Illegality spite of undoubtedly having standing14 (cf para 3.708 by analogy). Such acts become definitive in respect of the party when the time limit to bring an action for annulment expires. 3.656

Can acts of international organisations be reviewed? In Yusuf and Al Barakaat, the applicants brought an action for annulment against an EU fund-freezing regulation that put into effect a UN Security Council resolution on the territory of the EU. The General Court examined if, further to a plea of illegality, it had jurisdiction to assess the lawfulness of that UN resolution (as an act of general application), whose purported vices would have caused the illegality of the contested fund-freezing regulation. The General Court considered that it had no authority to call into question, even indirectly, the lawfulness of the resolutions of the UN Security Council in the light of EU law. However, it ruled that the incidental judicial review carried out in connection with an action for annulment may extend to determining whether the superior rules of international law falling within the ambit of jus cogens – in particular, the mandatory provisions on human rights – had been observed at the adoption of the UN resolution underlying the contested EU act.15

3.7.2.2. Link with the Subject Matter of the Case 3.657

Direct legal connection between the general act and the subject matter of the case. Under settled case law, since the purpose of Article 277 TFEU is not to enable a party to contest the applicability of any measure of general application in support of any action whatsoever, the scope of a plea of illegality must be limited to what is necessary for the outcome of the proceedings. It follows that the general measure claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action is concerned and there must be a direct legal connection between the subject matter of the case and the general measure in question.16

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The plea of illegality may only lie against the provision concerned, not the whole act. The plea of illegality raised against an act of general application is admissible only insofar as it targets the very provisions of the act which influence the outcome of the proceedings. For instance, in Kik, in the context of an intellectual property case, it was held that a plea of illegality could only stand against those provisions of the underlying act – the EC Trade Mark Regulation17 – on which the contested OHIM decision had been based.18

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Link with the subject matter of the case where annulment is sought. The plea of illegality is most frequently raised in actions in which the annulment of an EU measure is sought (actions for annulment,19 staff cases with an annulment claim20 and intellectual property cases21). First, a direct legal connection between the act of general application and the subject matter of the case is certainly present if that act served as the legal basis for the adoption of the contested measure.

14 Case C-239/99 Nachi Europe [EU:C:2001:101] para 37; Case C-11/00 Commission v ECB (fraud prevention) [EU:C:2003:395] paras 72–78. 15 Case T-306/01 Yusuf and Al Barakaat International Foundation v Council and Commission [EU:T:2005:331] paras 276–282. 16 Joined Cases T-289/11, T-290/11 and T-521/11 Deutsche Bahn and Others v Commission [EU:T:2013:404] para 56; Joined Cases T-6/92 and T-52/92 Reinarz v Commission [EU:T:1993:89] para 57. 17 Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1). No longer in force, replaced by the EU Trade Mark Regulation (Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1). 18 Case T-120/99 Kik v OHIM (Kik) [EU:T:2001:189] paras 24–25. See also Joined Cases T-289/11, T-290/11 and T-521/11 Deutsche Bahn and Others v Commission [EU:T:2013:404] paras 56–58. 19 See, eg Case T-526/10 Inuit Tapiriit Kanatami and Others v Commission (Inuit II) [EU:T:2013:215]. 20 See, eg Case T-58/05 Centeno Mediavilla and Others v Commission [EU:T:2007:218]. 21 See, eg Case T-120/99 Kik v OHIM (Kik) [EU:T:2001:189].

Acts against Which a Plea of Illegality can be Raised 351 For instance, in Inuit II,22 the applicants claimed that the illegality of the contested Commission regulation stemmed from the illegality of the legislative regulation which served as its legal basis and which it implemented. The claim was admissible, but was dismissed on the substance. Secondly, a direct legal connection between the act of general application and the contested measure is also present if the act was not the legal basis of the contested measure but nevertheless determined its content. Consequently, it is possible, for instance, to plead the illegality of a directive if it had an impact on the content of a Commission decision whose annulment is sought.23 The same goes for guidelines on fine-setting, which determine, in general and in the abstract, the method which the Commission has bound itself to use in calculating the fines imposed in eg a cartel decision, and which can therefore be the subject of a plea of illegality raised in an action for annulment brought against such a decision.24 While, in the above situations, the plea of illegality was used to foster a claim by the applicant as an offence, it may also be used as a defence by the defendant. For instance, in Commission v ECB (fraud prevention), the defendant ECB argued that the contested act, albeit contrary to certain EU law provisions, was still lawful, since those provisions were actually illegal in light of a superior norm.25 Link with the subject matter in actions for damages and for failure to act. Where the plea of illegality is raised in actions for damages26 or for failure to act,27 there must also be a legal connection between the provision of general application at issue and the conduct of the institution or body that is criticised by the applicant. That connection essentially means that the provision of general application at issue indeed determined the institution’s or body’s stance, consisting, respectively, in a conduct causing damage or in inaction, and that the assessment of the legality of that stance depends on the preliminary question whether that provision is lawful or not, in light of superior norms. For instance, the defendant institution or body may argue, as a defence in an action for damages, that the breach of a provision of general application (which purportedly caused damage) is not a breach of EU law because that provision is illegal, in light of superior norms. In an action for failure to act, the defendant may put forward that the provision of general application which establishes a duty to act is illegal, thus, in light of a superior EU norm, it has no duty to act.

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Infringement actions. In infringement actions, Member States attempted several times to plead, as a defence, the illegality of the EU measure whose breach had been alleged by the Commission.28 Such a plea of illegality cannot be validly raised when it concerns a directive that the defendant Member State failed to transpose or implement. In Commission v Italy (compensation schemes for crime victims), the Court of Justice ruled in this regard that

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in the absence of a provision of the FEU Treaty expressly permitting it to do so, a Member State cannot properly plead the unlawfulness of a directive addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that directive.29 22 Case T-526/10 Inuit Tapiriit Kanatami and Others v Commission (Inuit II) [EU:T:2013:215]. 23 Case C-86/03 Greece v Commission (maximum sulphur content of fuel) [EU:C:2005:769] paras 80–96. 24 Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission (pre-insulated pipes cartel) [EU:C:2005:408] paras 212–214. 25 Case C-11/00 Commission v ECB (fraud prevention) [EU:C:2003:395] para 78. 26 Case T-94/98 Alferink and Others v Commission [EU:T:2008:226] paras 36–39. The plea of illegality was dismissed as late and therefore inadmissible because it was only raised at the hearing. 27 For a situation similar to an action for failure to act (action seeking the annulment of a tacitly adopted act), see Joined Cases C-32/58 and C-33/58 SNUPAT v High Authority [EU:C:1959:18] p. 139. 28 For a detailed presentation of the views, see F Mariatte and D Rittleng, Contentieux de l’Union européenne 1 – Annulation, exception d’illégalité (Kluwer France – Lamy, Paris, 2011) 320–322. 29 Case C-601/14 Commission v Italy (compensation schemes for crime victims) [EU:C:2016:759] para 33 and the case law cited. The formula ‘in the absence of a provision of the FEU Treaty expressly permitting it to do so’ was taken over

352 Plea of Illegality Furthermore, in the pre-Lisbon case Commission v Greece (insurance of public property), the Court of Justice held that Member States could not raise a plea of illegality against decisions addressed to them.30 While Article 277 TFEU would, in principle, allow Member States to raise pleas of illegality in infringement cases against any act of general application (including directives and decisions of general scope), this may be at odds with the case law on legal certainty, which requires that the time limit to bring an action for annulment cannot be circumvented by incidental review, since that would allow the legal effect of EU acts to be called in question indefinitely (cf paras 3.236–3.237). It should also be recalled that Member States have unlimited standing to bring an action for annulment against whatever act that produces binding legal effects. Therefore, allowing pleas of illegality would mean a duplication of judicial avenues for seeking review of legality. It remains to be seen if, in the post-Lisbon context, the Court of Justice systematically excludes the use of pleas of illegality as a defence in infringement actions on the basis of the Commission v Italy (compensation schemes for crime victims) case law. In any event, Member States can plead the non-existence of the purportedly infringed EU act as a defence.31 Non-existence can, however, only be found in the case of such fundamental defects which go beyond the mere illegality of the act, and it may only occur in rather extreme conditions (cf para 3.66 et seq).

3.7.3. Parties 3.662

‘Any party’ – applicant, defendant, intervener. In Article 277 TFEU, the wording ‘any party’ is used. Therefore, applicants, defendants and also interveners may rely on a plea of illegality.

3.7.3.1. Natural or Legal Persons 3.663

The plea of illegality allows individual applicants to seek incidental review of EU acts that they cannot challenge directly. In the overwhelming majority of cases, the plea of illegality is raised by the applicant in support of his claim for annulment of the measure whose content was defined by the purportedly illegal act of general application. Raising such a plea presupposes the presence of two acts: the contested act and the act of general application on which the contested act was based, or which at least determined the content of the latter (cf para 3.659). The role of the plea of illegality in ensuring a complete system of judicial remedies for natural or legal persons was already defined in the seminal Simmenthal judgment:32 Article 184 of the EEC Treaty [now Article 277 TFEU] gives expression to a general principle conferring upon any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which form the legal basis of the decision which is being attacked, if that party was not entitled under Article 173 of the Treaty [now Article 263 TFEU] to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be declared void.

from pre-Lisbon judgments. Indeed, Art 241 TEC limited pleas in law to questioning the legality of regulations. This formula is not supported by the letter of Art 277 TFEU, which refers to acts of general application and is therefore difficult to construe as excluding directives. 30 Case C-226/87 Commission v Greece (insurance of public property) [EU:C:1988:354] para 14. NB: Art 184 of the EEC Treaty and Art 241 TEC limited pleas of illegality to regulations, while Art 277 TFEU includes decisions of general application. 31 Case C-601/14 Commission v Italy (compensation schemes for crime victims) [EU:C:2016:759] para 33. 32 Case C-92/78 Simmenthal v Commission [EU:C:1979:53] para 39.

Parties 353 It follows that, already in the context of the EEC Treaty and the TEC, the plea of illegality was perceived to offer a possibility to seek incidental review of acts (regulations)33 that natural or legal persons could not directly challenge because they lacked direct and/or individual concern. The Lisbon Treaty relaxed the conditions of standing in respect of natural and legal persons by introducing the third variant of Article 263(4) TFEU (cf para 3.174). While the condition of being individually concerned was thus waived as regards regulatory acts not entailing implementing measures, the plea of illegality fully retains its function. First, it follows from Inuit I34 that legislative acts are excluded from the notion of regulatory acts; therefore, individual applicants may only challenge such acts incidentally, as was illustrated by Inuit II35 (cf para 3.189). Secondly, regulatory acts often do entail implementing measures, which is an obstacle to standing under the third variant of Article 263(4) TFEU. If those implementing measures are adopted by EU institutions or bodies, an individual applicant may nonetheless obtain a declaration of inapplicability of the regulatory act if he brings an action for annulment against the EU implementing measures and raises a plea of illegality against the regulatory act. No right to raise a plea of illegality if the general act has become definitive in respect of the applicant. The right of individual applicants to raise a plea of illegality is, however, curtailed by the case law aimed at ensuring legal certainty and avoiding the creation of parallel judicial avenues. As was explained above (cf para 3.236), a decision adopted by institutions or bodies which has not been challenged by its addressee within the time limit laid down in Article 263(6) TFEU becomes definitive as against that person. Since Nachi, the Court of Justice has held that also a provision of an act of general scope which is assimilated to an individual decision addressed to a natural or legal person becomes definitive if the latter did not bring and action for annulment in due time, although he clearly had the standing to do so.36 Although Nachi concerned the possibility to obtain an incidental review via a preliminary ruling on validity, its content has been transposed to pleas of illegality, given the logic common to these two avenues.37 It follows that the possibility to raise a plea of illegality is excluded where two cumulative conditions are fulfilled: (i) the provision of the act of general application is assimilated to a decision of individual scope in respect of the applicant; and (ii) the applicant undoubtedly had the right to bring an action for annulment against the act since he was directly and individually concerned by the latter.38 If, in contrast, the applicant could have legitimate doubts as to whether he was directly and individually concerned by the act of general scope, his right to seek incidental review remains unaffected, as was held in Bavaria and Bavaria Italia in the context, again, of a preliminary reference on validity.39 The addition of the third variant to Article 263(4) TFEU by the Lisbon Treaty does not change this case

33 Art 184 of the EEC Treaty and Art 241 TEC only allowed to raise a plea of illegality against regulations, while Art 277 TFEU concerns ‘acts of general application’ (cf para 3.647). 34 Order of 6 September 2011 in Case T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council (Inuit I) [EU:T:2011:419] para 64. 35 Case T-526/10 Inuit Tapiriit Kanatami and Others v Commission (Inuit II) [EU:T:2013:215]. 36 Case C-239/99 Nachi Europe [EU:C:2001:101] para 37. See also Case C-135/16 Georgsmarienhütte and Others [EU:C:2018:582] para 41 (preliminary ruling on validity). 37 C-11/00 Commission v ECB (fraud prevention) [EU:C:2003:395] paras 72–78. NB: the French version of the crucial para 77 makes it clear that the finding that the regulation was of general application (‘de caractère normatif’) and not of individual scope made it possible to raise a plea of illegality (‘de caractère normatif’ was translated into English as ‘legislative’, although ‘of general application’ would arguably have been more appropriate). On the facts, the Court of Justice did not apply the Nachi case law, since the regulation whose illegality was pleaded by the ECB was neither addressed to it nor could be regarded as an individual decision in the ECB’s respect. 38 Case C-135/16 Georgsmarienhütte and Others [EU:C:2018:582] paras 30–34. 39 C-343/07 Bavaria and Bavaria Italia [EU:C:2009:415] paras 40–45.

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354 Plea of Illegality law. While the third variant extends standing, it does not limit the possibilities to raise a plea of illegality. This is because the condition of standing under the third variant is that the regulatory act does not entail implementing measures (cf para 3.190 et seq). In fact, a plea of illegality could be conceivably raised in an action for annulment against the implementing measures ‘entailed’ by the act of general application. However, the very existence of such measures shows that the conditions for a direct challenge of the said act under the third variant were not met. Since the term ‘entailed’ is interpreted broadly – it is not only implementing measures adopted on the basis of a regulatory act that preclude admissibility under the third variant of Article 263(4) TFEU, but also all measures through which the effects of the regulatory act materialise in respect of the applicant (cf paras 3.195–3.196) – the possibility to raise a plea of illegality is not restricted by the third variant. 3.665

Interest to raise a plea of illegality. As opposed to Member States and EU institutions, natural or legal persons have to show an interest to act in respect of each plea in law they put forward (cf para 3.125). Since the plea of illegality is regarded as a plea in law in support of the heads of claim of the party who relies on it, it is only admissible if it can procure an advantage for that party, as was expressly confirmed in Campoli.40

3.7.3.2. Member States 3.666

A controversial right to raise pleas of illegality in spite of the right to direct challenge. Member States have unlimited standing to bring an action for annulment against any EU act, including acts of general application such as regulations, directives and decisions of general scope. In addition, the wording of Article 277 TFEU (‘any party’) allows them to raise a plea of illegality against an act of general application in an action for annulment brought against a subsequent act based on or determined, as to its content, by the act of general application. It would also follow from the post-Lisbon wording of Article 277 TFEU that Member States may raise a plea of illegality as a defence as well, by claiming in an infringement case that the act which they did not comply with or failed to implement is in fact illegal.41 Several commentators note that allowing Members States to challenge measures of general application incidentally via a plea of illegality, without any time limit and in spite of the fact that no action for annulment was brought in due time, would create a sensitive exception from the principle of legal certainty and from the maxim under which the time limits set for an action for annulment must not be circumvented by resorting to incidental review42 (cf para 3.236). One might add that the stakes are particularly high as regards legal certainty: while inter partes inapplicability causes limited exception from the principle of legal certainty because it only applies to the legal relationships of the successful individual applicant, the same inter partes inapplicability between a Member State and an EU institution has far greater repercussions, since it applies downstream to all legal relations governed by national law. Besides, it also implies that an EU act of general application is valid and applicable in all Member States except the one which successfully pleaded its illegality. On the other hand, the presence and true implications of a basic act’s illegality may only become apparent some time after its adoption, once more detailed rules are being implemented at both EU and national level.43 40 Case T-135/05 Campoli v Commission [EU:T:2006:366] para 132. 41 This right was denied as regards directives in Case C-601/14 Commission v Italy (compensation schemes for crime victims) [EU:C:2016:759] (cf para 3.667). 42 A H Türk, Judicial Review in EU Law (Edward Elgar Publishing, Cheltenham, 2009) 211; F Mariatte and D Rittleng, Contentieux de l’Union europèenne 1 – Annulation, exception d’illégalité (Kluwer France – Lamy, Paris, 2011) 321. 43 Opinion of AG Roemer in C-32/65 Italy v Council and Commission [EU:C:1966:14].

Parties 355 Leading precedents: Spain v Council (fishing effort) and Commission v Italy (compensation schemes for crime victims). Two key judgments shed light on the right of Member States to raise a plea of illegality. In Spain v Council (fishing effort),44 Spain sought the partial annulment of Council regulation 1415/2004 fixing the maximum annual fishing effort for certain fishing areas and fisheries.45 That regulation was based on and implemented Council Regulation 1954/2003 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy. Spain raised a plea of illegality against Regulation 1954/2003,46 the general act underlying the contested Regulation 1415/2004. The Court of Justice ruled that even if Member States can directly challenge regulations through an action for annulment, they cannot be deprived of the possibility of raising a plea of illegality against such acts – whether or not they brought an action for annulment against them in due time – since Article 241 TEC unambiguously provided that ‘any party’ is entitled to raise such a plea in order to show the inapplicability of regulations.47 The Court of Justice chose a different approach in Commission v Italy (compensation schemes for crime victims), where Italy raised a plea of illegality as a defence in an infringement case. The Court of Justice ruled that

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in the absence of a provision of the FEU Treaty expressly permitting it to do so, a Member State cannot properly plead the unlawfulness of a directive addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that directive.48

It should be noted that the formula ‘in the absence of a provision of the FEU Treaty expressly permitting it to do so’ was certainly valid in the pre-Lisbon context, since Article 241 TEC only allowed pleas of illegality to be raised against regulations.49 However, Article 277 TFEU mentions acts of general application, which include directives. It should be noted that, unlike Spain v Council (fishing effort), the more recent Commission v Italy (compensation schemes for crime victims) is a post-Lisbon judgment, and it was also delivered in a larger formation (Grand Chamber). If these two precedents coexist, it means that Member States may raise a plea of illegality against a regulation in support of an annulment claim, as offence, while they cannot plead the illegality of a directive in an infringement case, as defence, at least where the infringement action concerns the non-implementation of the directive at issue. This distinction would rest on case law only, since Article 277 TFEU provides that ‘any party may, in proceedings in which an act of general application adopted by an institution [or body] is at issue, plead the grounds specified in Article 263’.

3.7.3.3. EU Institutions ECB precedent suggests right to raise a plea of illegality. It follows from Article 263(2) TFEU that the Parliament, the Council and the Commission – similarly to Member States – 44 Case C-442/04 Spain v Council (fishing effort) [EU:C:2008:276]. 45 Council Regulation (EC) No 1415/2004 of 19 July 2004 fixing the maximum annual fishing effort for certain fishing areas and fisheries (OJ 2004 L 258, p. 1). 46 Council Regulation (EC) No 1954/2003 of 4 November 2003 on the management of the fishing effort relating to certain Community fishing areas and resources (OJ 2003 L 289, p. 1). 47 Case C-442/04 Spain v Council (fishing effort) [EU:C:2008:276] para 22. In an earlier action for annulment, Spain did challenge the legality of the basic act. However, that circumstance did not play any role in the Court’s reasoning. 48 Case C-601/14 Commission v Italy (compensation schemes for crime victims) [EU:C:2016:759] para 33 and the case law cited. 49 The formula ‘in the absence of a provision of the FEU Treaty expressly permitting it to do so’ was taken over in the post-Lisbon Case C-601/14 Commission v Italy (compensation schemes for crime victims) [EU:C:2016:759] para 33 from the pre-Lisbon Case C-189/09 Commission v Austria (data retention) [EU:C:2010:455] para 15 without any mention of the change in the Treaty text.

3.668

356 Plea of Illegality are privileged applicants, meaning that they have unlimited standing to bring actions for annulment. Article 263(3) provides that the Court of Auditors, the ECB and the Committee of the Regions50 may also bring actions for annulment for the purpose of protecting their p rerogatives (‘semi-privileged applicants’, cf 3.99 et seq). Consequently, as a rule, all the EU institutions (except the Court of Justice of the European Union) have the right to challenge acts of general application directly via an action for annulment. Therefore, allowing EU institutions to raise a plea of illegality against such acts under Article 277 TFEU gives rise to the same concerns as regards impaired legal certainty, circumvention of deadlines and duplication of judicial avenues as in the case of Member States (cf para 3.666). However, in coherence with Spain v Council (fishing effort),51 in the Commission v ECB (fraud prevention) case, the Court of Justice allowed the ECB to raise a plea of illegality (as defence). In this case, the Commission brought an action for annulment against an ECB decision on fraud prevention, by submitting that the ECB infringed Regulation 1073/1999 on OLAF investigations.52 In defence, the ECB objected the illegality of the provision of the said regulation which it purportedly breached. The Commission pleaded that the regulation had become definitive as regards the ECB since it had standing to bring an action for annulment but did not do so. However, the Court of Justice referred directly to Article 241 TEC, allowing ‘any party’ to object the illegality of a ‘regulation’ (now, under Article 277 TFEU, ‘act of general application’), and highlighted that the regulation in question was not alleged to be a decision of individual scope in respect of the ECB. Therefore, it had not become definitive as regards the latter and, consequently, the ECB could raise a plea of illegality against it.53 3.669

EU institutions have an opportunity to defend their act of general application even if they are initially not parties to the case. Where the Parliament, the Council or the Commission is not a party to a case, the Courts send to them copies of the application and the defence to enable them to assess whether the inapplicability of one of their acts is being invoked under Article 277 TFEU.54 These EU institutions may join the case as privileged interveners under Article 40(1) of the Statute without showing any interest in the outcome of the case55 (cf para 5.239).

3.7.4. Formal Requirements 3.670

Formal requirements of the action in which the plea of illegality is raised. It should be recalled that the plea of illegality is not an independent action. It can be raised in direct actions and in intellectual property cases (cf para 3.650) as a plea in law. Where the plea of illegality is raised by the applicant, the application that contains the plea of illegality must comply, as a whole, with the formal requirements that apply to the particular type of action (ie action for annulment, action in a staff case, action in an intellectual property case, as presented in the previous Chapters). The plea of illegality is examined under the general case law related to the admissibility of particular pleas in law in light of the requirements of clarity and precision (cf para 4.178). A few specific issues are presented below. 50 The Committee of the Regions is not an EU institution. 51 Case C-442/04 Spain v Council (fishing effort) [EU:C:2008:276]. 52 Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ 1999 L 136, p. 1). 53 Case C-11/00 Commission v ECB (fraud prevention) [EU:C:2003:395] paras 72–78. 54 CJ RoP, Art 125; GC RoP, Art 82. 55 See, eg the intervention of the Council in Case T-120/99 Kik v OHIM (Kik) [EU:T:2001:189] in defence of the legality of the EC Trade Mark Regulation (Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), no longer in force).

Formal Requirements 357 As a rule, no formal qualification is needed; however, the party must clearly seek incidental review. Ideally, the party relying on the unlawfulness of an act of general application should expressly raise a plea of illegality. It seems, however, that a formal qualification as ‘plea of illegality’ is not necessary. The General Court has already ruled in the context of an action for annulment that a plea of illegality may be raised implicitly, insofar as it comes out clearly from the application that the applicant puts forward such an argument in law.56 Such an implicit plea of illegality is a fortiori admissible if, in a later submission, the party raises a formal plea of illegality based on arguments already put forward in his first pleading.57 Conversely, it is not enough to submit the illegality of some aspects of the contested measure which are a necessary consequence of the mechanical application of an act of general application without arguing explicitly that that general act is unlawful.58 Such arguments do not qualify as a plea of illegality.

3.671

The plea of illegality must be raised in the first written pleading, as a rule. The essence of the plea of illegality must be raised in the first written pleading unless it is based on new matters of law or fact. The GC RoP and the CJ RoP provide that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light during those proceedings59 (cf paras 4.175 and 4.227). Therefore, the arguments in support of a plea of illegality must be included in the party’s first written pleading (in most situations, this is either the application or the defence60). The plea of illegality is most often put forward in support of an action for annulment, where it must be raised in the application. In Common Market F ertilizers, the applicant put forward a plea of illegality regarding the regulation (the act of general application) on which the contested decision was based only in the reply, after examining the Commission’s interpretation of that regulation in the latter’s defence. The Courts considered that such an interpretation was no new matter of fact or law. Consequently, the plea of illegality was dismissed as late and therefore inadmissible.61 In Spain v Council (fishing effort), the Court of Justice held that a plea of illegality formally raised in the reply by the applicant was still admissible, since all supporting arguments had already been put forward in the application. In such circumstances, the plea of illegality was implicitly but clearly

3.672

56 Case T-262/94 Baiwir v Commission [EU:T:1996:75] para 37. 57 Case C-442/04 Spain v Council (fishing effort) [EU:C:2008:276] paras 24–25; Joined Cases T-289/11, T-290/11 and T-521/11 Deutsche Bahn and Others v Commission [EU:T:2013:404] para 55. 58 Joined Cases T-273/06 and T-297/06 ISD Polska and Industrial Union of Donbass v Commission [EU:T:2009:233] paras 156–159; Case C-369/09 P ISD Polska and Others v Commission [EU:C:2011:175] para 53. The applicants sought the annulment of a Commission decision declaring State aid incompatible with the common market and ordering its reimbursement. In particular, they challenged the interest rate applied by the Commission to recovery, as communicated in the contested decision and a subsequent letter. The Courts pointed out that the interest rate was determined by the method set out in Regulation 794/2004 (Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 2004 L 140, p. 1)), and the Commission had no latitude as to the application of that regulation when adopting the contested decision. The Courts went on to consider that since the applicants had raised no plea of illegality in respect of that regulation, their plea in law regarding the interest rate had to be dismissed. 59 CJ RoP, Art 127(1); GC RoP, Art 84(1). Late pleas of illegality are rejected as inadmissible: see Case T-94/98 Alferink and Others v Commission [EU:T:2008:226] paras 36–39. NB: a judgment dismissing an action for annulment against the act of general application at issue delivered during the Court proceedings is no new matter of fact or law, as was held in Case C-442/04 Spain v Council (fishing effort) [EU:C:2008:276] para 23. 60 The first written pleading is the ‘response’ if the plea of illegality is raised by the defendant or the intervener in an intellectual property case, or by a respondent in appeals, and is the ‘statement in intervention’ if the plea is raised by an intervener in direct actions or in appeals. 61 Case C-443/05 P Common Market Fertilizers v Commission [EU:C:2007:511] paras 106–108.

358 Plea of Illegality contained in the application and the defendant was able to express its position in the defence.62 The case law on expounding pleas in law is applicable (cf para 4.235). In Alferink, the General Court considered that the plea of illegality raised by the applicants at the hearing was a new plea in law which neither was based on new matter of fact or law, nor could be regarded as amplifying pleas already put forward in the original application and closely connected with them. Therefore, the plea of illegality was dismissed as inadmissible.63 Conversely, in Deutsche Bahn, the General Court held that the formal plea of illegality raised in the reply was an expansion of a plea already present in the application, thus it was admissible.64 The above principles apply mutatis mutandis to situations where the plea of illegality is relied on by the defendant or an intervener.65 Pleas of illegality can nonetheless be raised at any time during the proceedings if they concern a matter of public policy (cf para 3.243). 3.673

Clear and precise wording. The general requirement under which pleas in law must be clearly and precisely formulated so as to enable the other parties to respond to them must also be observed in the context of a plea of illegality. In Sardegna, the plea of illegality raised by the interveners was rejected as inadmissible, since the latter merely submitted that some of the provisions of Regulation No 659/199966 were incompatible with the principle of legal certainty, without specifying those provisions and expressly disputing their legality.67

3.674

Practice. In light of the above, the chances of admissibility of a plea of illegality can be maximised if: (i) the arguments on the basis of which the party seeks incidental review are expressly qualified as a ‘plea of illegality’; (ii) such a plea is formally raised in the first written pleading submitted by the party; (iii) the purportedly illegal provisions of the act of general application at issue are clearly defined in the plea; (iv) the norm of reference (as compared to which the said provisions are illegal) is clearly specified in the plea, together with the legal reasoning that demonstrates the illegality; (v) the link between the act of general application and the subject matter of the case is clearly explained; and(vi) where the plea of illegality is raised by an individual applicant seeking the annulment of a measure whose content was defined by the act of general application, the individual applicant explains the reasons why he did not have standing to challenge the act of general application directly through an action for annulment.

3.7.5. No Time Limit 3.675

No time limit to raise a plea of illegality of the act of general application at issue. Article 277 TFEU expressly provides that a plea of illegality can be raised notwithstanding the expiry of the deadline for bringing an action for annulment against the act of general application at issue. Therefore, illegality can be objected in later proceedings irrespective of the length of time which has lapsed since the adoption of that general act. However, this rule should not be confused

62 Case C-442/04 Spain v Council (fishing effort) [EU:C:2008:276] para 24. 63 Case T-94/98 Alferink and Others v Commission [EU:T:2008:226] para 39. 64 Joined Cases T-289/11, T-290/11 and T-521/11 Deutsche Bahn and Others v Commission [EU:T:2013:404] paras 55 and 58. Admissibility was limited to those parts of the disputed general act which had a link with the subject matter of the case. 65 For more examples, see F Mariatte and D Rittleng, Contentieux de l’Union europèenne 1 – Annulation, exception d’illégalité (Kluwer France – Lamy, Paris, 2011) 316–319. 66 Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 88 of the EC Treaty (OJ 1999 L 83, p. 1). No longer in force. 67 Case T-171/02 Regione autonoma della Sardegna v Commission [EU:T:2005:219] paras 186–188.

Grounds for Review 359 with those regarding the timely submission of a plea of illegality – or at least the supporting arguments – in a particular procedure before the Courts (cf para 3.672).68 Furthermore, the action seeking the annulment of the measure whose content was defined by the act of general application at issue must be lodged within the time limits for bringing an action for annulment, a staff case or an intellectual property case.

3.7.6. Grounds for Review Same grounds for review as in actions for annulment. Article 277 TFEU provides that the Courts may declare the act of general application at issue inapplicable on the same grounds as the ones foreseen in Article 263(2) TFEU, that is, lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or other superior EU norms, or misuse of powers.

3.676

Content of the plea of illegality. The Courts carry out the incidental review of the act of general application at issue in light of the legal arguments put forward by the party relying on a plea of illegality. The said party must clearly indicate: (i) the provisions of the act of general application at issue which he considers unlawful; (ii) the link between that act and the subject matter of the case (cf para 3.657 et seq); and (iii) the defect that causes the purported illegality of the act of general application. That defect may be the lack of competence of the institution or body to adopt the act of general application at issue, the infringement of an essential procedural requirement during the adoption of that act, the breach of a superior norm of EU law by that act, or the misuse of power by the institution or body that adopted the act at issue. As a rule, these elements must be present in the first written pleading submitted by the party who raises a plea of illegality (cf para 3.672).

3.677

Lack of competence and infringement of an essential procedural requirement can be raised ex officio. As in actions for annulment, lack of competence and infringement of an essential procedural requirement can also be raised by the Courts ex officio, with the procedural implication that a plea of illegality concerning one of these grounds may also be raised by a party at a stage of the procedure later than his first written pleading (cf para 3.243).

3.678

Where the applicant seeks annulment of a measure and the plea of illegality relates to a breach of a superior norm of EU law. In practice, the most frequent context of a plea of illegality is where the applicant seeks the annulment of a measure whose content was defined by a purportedly illegal act of general application. In these situations, the applicant must construe his plea by specifying: (i) the parts of the contested measure that are claimed to be illegal; (ii) the unlawful provisions of the act of general application being the source of the illegality that contaminated the contested measure; and (iii) the exact provisions of the norm (norm of reference) that is breached by the act of general application. Evidently, the norm of reference must be situated higher up in the hierarchy of norms (cf para 3.275) than the act of general application.

3.679

Requirements as regards the norm of reference. The legality of the act of general application is only assessed against superior norms if the latter fulfil certain requirements. International agreements may only be relied on if they qualify as norms of reference according to the case law (cf paras 3.290–3.294, 3.685 and 3.703).

3.680

68 Case

C-442/04 Spain v Council (fishing effort) [EU:C:2008:276] paras 22–24.

360 Plea of Illegality 3.681

Example: Inuit II. In Inuit II,69 the applicants brought an action for annulment against a Commission regulation (the contested measure) which was based on and implemented a legislative regulation adopted jointly by the Parliament and the Council (the act of general application). They pleaded that the legislative regulation was illegal on the grounds that it lacked an appropriate legal basis in the EC Treaty and that it was adopted in breach of the principle of subsidiarity (lack of competence), that it infringed fundamental rights laid down in the European Convention of Human Rights and in the Charter of Fundamental Rights (breach of superior norms of EU law), and that it was vitiated by a misuse of power. These pleas of illegality were admissible, but were dismissed on the substance.

3.682

Example: Centeno Mediavilla. In Centeno Mediavilla,70 a staff case, 17 EU officials brought a common action against the decisions of the Appointing Authority classifying each of them in lower salary grades (the contested measures). The classification decisions implemented Council Regulation 723/200471 (the act of general application), which amended Article 12(3) of Annex XIII to the Staff Regulations72 by fixing new salary grades, to the effect that the grades of new officials in general were lowered (cf para 3.506). The applicants raised a plea of illegality against Regulation 723/2004 by claiming that it breached inter alia the principles of good administration, legal certainty, the protection of legitimate expectations, as well as that of equal treatment and non-discrimination (the norms of reference). These pleas in law were admissible, but were dismissed on the substance.73

3.683

Example: Kik. In Kik,74 an intellectual property case, the applicant brought an action seeking the annulment of a decision of a Board of Appeal of the OHIM (the contested measure), whereby the Board confirmed the decision of the examiner to reject the application for a trade mark filed by the applicant on the ground that the second language specified in the application for trade mark (Dutch) was not one of the five working languages of the OHIM. Since that rejection was the direct consequence of the language rules laid down in the EC Trade Mark Regulation75 (the act of general application), the applicant raised a plea of illegality against those rules in her action brought before the General Court. She pleaded that those rules were contrary to Article 12 TEC on the principle of non-discrimination (the norm of reference). The Council intervened at first instance in defence of the EC Trade Mark Regulation, which was a Council Regulation. The plea of illegality was admissible, but was dismissed on the substance.76

3.684

Example: Commission v ECB (fraud prevention). In the fraud prevention case, the Commission brought an action for annulment against a decision of the ECB on fraud prevention (the contested measure). The Commission submitted that the ECB’s decision was in breach of Regulation 1073/199977 (the act of general application), adopted jointly by the Parliament and 69 Case T-526/10 Inuit Tapiriit Kanatami and Others v Commission (Inuit II) [EU:T:2013:215]. 70 Case T-58/05 Centeno Mediavilla and Others v Commission [EU:T:2007:218]. 71 Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 (OJ 2004 L 124, p. 1). 72 Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (OJ 1962 P 45, p. 1385). 73 Case T-58/05 Centeno Mediavilla and Others v Commission [EU:T:2007:218], confirmed on appeal in Case C-443/07 P Centeno Mediavilla and Others v Commission [EU:C:2008:767]. 74 Case T-120/99 Kik v OHIM (Kik) [EU:T:2001:189]. 75 Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1). No longer in force. 76 Case T-120/99 Kik v OHIM (Kik) [EU:T:2001:189]. The appeal against this judgment was dismissed in Case C-361/01 P Kik v OHIM [EU:C:2003:434]. 77 Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ 1999 L 136, p. 1).

Effects of Inapplicability 361 the Council on the legal basis of Article 280 TEC. The ECB raised a plea of illegality as a defence, by submitting that Regulation 1073/1999 (the act of general application) was illegal because it was adopted in breach of essential procedural requirements and also because the Council and the Parliament did not have the power to adopt it under Article 280 TEC (lack of competence). The plea of illegality was admissible, but was dismissed on the substance.78 Example: Vereniging Milieudefensie. In Vereniging Milieudefensie,79 the applicant environmental protection organisations brought an action for annulment against a Commission decision (the contested measure) that rejected their request for review of an earlier Commission decision granting the Netherlands a temporary exemption from environmental law obligations related to air quality, as laid down in a directive.80 The contested measure was adopted under Regulation No 1367/2006 of the Parliament and the Council (the act of general application) against which the applicants raised a plea of illegality, by arguing that the relevant provisions of that regulation were in breach of Article 9(3) of the Aarhus Convention81 (the purported norm of reference). The General Court considered that the plea of illegality was well founded and, as a consequence, annulled the contested measure.82 On appeal, the Court of Justice overturned the first instance judgment. It held that Article 9(3) of the Aarhus Convention ‘does not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals’, and that Article 9(3) did not fall into any exceptional situations in which the legality of an EU act could be assessed against an international agreement.83 The Court of Justice therefore ruled that Article 9(3) of the Aarhus Convention could not serve as a norm of reference, quashed the first instance judgment for an error of law and gave final ruling by dismissing the action for annulment.

3.685

3.7.7. Effects of Inapplicability Inter partes effect. Under Article 277 TFEU, the ‘inapplicability’ of the act of general application may be invoked. This wording indicates that the consequence of a successful plea of illegality is merely the inapplicability of the act concerned in respect of the parties to the case (inter partes effect),84 not its disappearance from the EU legal order. The direct consequences of a successful plea of illegality are limited to the solution of the case in which it was raised.

3.686

Where the plea of illegality was raised in support of an annulment claim. Where the EU Courts establish the illegality of the act of general application which defined the content of the measure whose annulment was sought, the consequence of the successful plea of illegality is that the measure is annulled. The institution or body that adopted the measure has the duty to eradicate all the past and future effects of the annulled measure in respect of the successful applicant

3.687

78 Case C-11/00 Commission v ECB (fraud prevention) [EU:C:2003:395] paras 105 and 112. 79 Case T-396/09 Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission [EU:T:2012:301]. 80 Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1). 81 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13). 82 Case T-396/09 Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission [EU:T: 2012:301] para 77. 83 Case C-401/12 P Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht [EU:C:2015:4] paras 52–61. 84 K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, Oxford, 2014) 455.

362 Plea of Illegality (cf para 3.330). In one staff case, the Court of Justice also held that the defendant institution was under the duty to take general measures in order to remedy the illegality of the act of general application,85 but this duty did not relate to the eradication of the past effects of that act and did not specifically require its repeal. 3.688

Impact on third parties? Since the act of general application against which a successful plea of illegality was raised does not disappear from the EU legal order by virtue of the judgment, the previous EU acts based on it remain valid and legal. This is in line with the case law according to which bundles of individual measures and measures of general scope which were annulled only in respect of the successful applicant remain valid and applicable as regards all other persons who did not challenge them or did not succeed in showing their illegality, even if the unlawfulness found by the Courts had a general impact on the content of those measures, also with regard to other persons (cf paras 3.328–3.329). Like any other finding on illegality by the Courts, that concerning the illegality of the act of general application underlying other measures does not reopen the time limit for bringing an action for annulment against said measures. However, if the institution or body in charge of implementing the act of general application continues to apply it in spite of its stated unlawfulness, third parties may bring actions for annulment (or other actions seeking annulment, such as staff cases and intellectual property cases) against the implementing measures within the applicable time limits. In these actions, they may raise the same plea of illegality that proved to be successful, since there is no time limit to doing so.

3.689

The illegal provision of general application is likely to be amended or disregarded. Although Article 277 TFEU does not explicitly impose the obligation on the author of the act of general application to repeal the provision found to be illegal, that provision is likely to be amended, repealed or at least disregarded. Since the continued application of the unlawful general act would contaminate all measures implementing it, natural or legal persons affected by those measures could bring actions for annulment by raising the same plea of illegality. Facing the prospect of such extensive and unsuccessful litigation, it is in the best interest of the institution or body that applies the general act to amend or disregard it, or, if the general act was adopted by another author, to request its amendment from the author. The aftermath of the Total Raffinage et Marketing judgment may provide an illustration. In this action for annulment brought against a cartel decision, the applicant raised a plea of illegality against the duration multiplier in the 2006 guidelines on fine-setting,86 criticising that one day of participation in the cartel had the same bearing on the fine as six months, as both added 0.5 to the duration multiplier (the ‘rounding-up method’). The General Court held that the Commission, by applying the said guidelines strictly and mechanically to the applicant, breached the principles of equal treatment and of proportionality when determining the amount of the fine. The Court did not need to state the illegality of the guidelines because it was not bound by them. However, it made clear that the decision was partially annulled because of the erroneous method of calculation that was inherent to the guidelines.87 After the judgment, the Commission stopped applying the ‘rounding-up method’ and calculated the duration multiplier, in its later decisions, by taking into account the exact number of days of participation in the cartel.88

85 Joined Cases C-75/82 and C-117/82 Razzouk and Beydoun v Commission [EU:C:1984:116] para 19. 86 Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2). 87 Case T-566/08 Total Raffinage Marketing v Commission (candle wax cartel) [EU:T:2013:423] paras 548–554, confirmed on appeal in Case C-634/13 P Total Marketing Services v Commission (candle wax cartel) [EU:C:2015:614]. 88 See, eg Commission decision of 2 April 2014 (CASE AT.39610 – Power Cables) point 1012.

3.8. Preliminary Rulings on Validity of EU Measures [written by Alexandre Geulette1]

3.8.1. Overview General. The present chapter complements Chapter 2.2. Preliminary rulings on interpretation by describing the specificities of preliminary rulings on the validity of EU measures. Unless otherwise stated in the present chapter, the rules described in Chapter 2.2 Preliminary Rulings on Interpretation apply mutatis mutandis. The procedural provisions explained in Chapter 4.5. Procedure in Preliminary Rulings are applicable to preliminary rulings on validity as well.

3.690

Notion. Under Article 19(3)(b) TEU and Article 267 TFEU, the Court of Justice has jurisdiction to give preliminary rulings on the validity of acts adopted by an institution, body, office or agency of the EU (‘institution or body’).2 Thus, where a national court entertains serious doubts as to the validity of an EU measure which is applicable in the proceedings before it, it may refer a question for preliminary ruling to the Court of Justice regarding the validity of such an EU measure. Furthermore, any party to the national court proceedings who feels that he has been adversely affected by the application of an EU measure which he considers to be illegal also has the right to challenge the validity of such a measure and to ask the national court hearing the case to put a question on validity to the Court of Justice, by means of a reference for a preliminary ruling.3 While the national court hearing the case may dismiss the party’s pleas contesting the validity of an EU measure without making a preliminary reference, it is solely the Court of Justice that has the power to declare an EU act invalid. All national authorities and courts must draw the consequences from the declaration of invalidity in their national legal order, the effects of such a declaration being erga omnes.4

3.691

Place in the system of incidental review. As the Court of Justice has pointed out in its seminal Les Verts and Foto-Frost judgments,5 requests for preliminary rulings, like actions for annulment, constitute means for reviewing the legality of EU acts. In Article 263 TFEU, on the one hand, and in Articles 277 and 267 TFEU, on the other, the FEU Treaty establishes a complete system of legal remedies and procedures designed to enable the Court to review the legality of measures adopted

3.692

1 Référendaire, European Court of Justice. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the Court of Justice. 2 Throughout this book, the term ‘institution or body’ denotes any institution, body, office or agency of the Union within the meaning of Arts 263(1) and 265(1) TFEU, which correspond to the entities whose acts can be incidentally reviewed under Art 267 TFEU. Conversely, the term ‘EU institution’ is reserved for institutions of the Union listed in Art 13(1) TEU. 3 The Court has held in that regard that national courts, which are bound by the principle of sincere cooperation, are required, so far as possible, to interpret and apply national procedural rules governing the exercise of rights of action in a way that enables natural and legal persons to challenge before the courts the legality of any decision or other national measure relative to the application to them of an EU act of general application, by pleading the invalidity of such an act (Case C-50/00 P Unión de Pequeños Agricultores v Council [EU:C:2002:462] para 42; Case C-511/03 Ten Kate Holding Musselkanaal and Others [EU:C:2005:625] para 29). 4 K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, Oxford, 2014) 472. 5 Case C-294/83 Les Verts v Parliament [EU:C:1986:166] para 23; Case C-314/85 Foto-Frost [EU:C:1987:452] para 16; Case C-461/03 Gaston Schul Douane-expediteur [EU:C:2005:742] para 22.

364 Preliminary Rulings on Validity of EU Measures by EU institutions and bodies. While the action for annulment (Article 263 TFEU) constitutes the direct avenue for reviewing the legality of EU acts, the plea of illegality (Article 277 TFEU) and preliminary references on validity of EU acts (Article 267 TFEU) together form the system of incidental review in the EU judicial system6 (cf para 1.11, cf paras 3.141–3.142, 3.191 and 3.648). Where an EU act of general application is implemented by EU institutions or bodies, the implementing measure may be challenged before the EU Courts, eg through an action for annulment, and a plea of illegality can be raised against the general act. Where the EU act is implemented by national authorities, in case of a perceived illegality of the EU act that also renders the national implementing measures illegal, the action may be lodged with a national court that can subsequently request a preliminary ruling on validity.7 3.693

The Court of Justice has exclusive power to declare an EU act invalid. While national courts may or must make preliminary references on validity, only the Court of Justice has the power to declare an EU measure invalid (cf para 3.698). The rationale behind this exclusive jurisdiction of the Court lies with the purpose of that jurisdiction, which is to guarantee legal certainty by ensuring that EU law is applied uniformly.8 Such a requirement of uniformity is particularly vital where the validity of an EU act is in question. Indeed, differences between courts of the Member States as to the validity of EU acts would be liable to jeopardise the very unity of the EU legal order and undermine the fundamental requirement of legal certainty.9

3.694

Admissibility. The admissibility of the action lodged with the national court is governed by national procedural law. The admissibility of the preliminary reference on validity is subject to the general conditions related to preliminary references (cf Section 2.2.4. Admissibility of the Reference). Such a reference may only concern the validity of an act adopted by an EU institution or body, to the exclusion of the validity of Treaty provisions (cf Section 3.8.3. Subject Matter of the Question Referred). Furthermore, a clearly existing right of the party, which he did not exercise in due time, to seek direct review under Article 263 TFEU entails, as a rule, the inadmissibility of the preliminary reference on validity in the party’s case (cf Section 3.8.5. Relationship with Article 263 TFEU).

3.695

Substance. The grounds for review in preliminary rulings on validity include those in actions for annulment (cf Section 3.1.7. Grounds for Review; Section 3.8.4. Assessment of Validity). If the Court of Justice considers that the act is unlawful, it declares it invalid in the operative part of the judgment, which binds national courts and authorities and has an erga omnes effect (cf Section 3.8.6. Consequences of the Ruling).

3.8.2. Decision to Request a Preliminary Ruling on Validity 3.696

The national court decides if a question on validity is necessary to give judgment. When a question on the validity of an EU act is raised before a national court, it is for that court to decide

6 See also P Iannuccelli, ‘Articolo 277 TFUE’ (in: Codice dell’Unione Europea operativo ed. by C C Gialdino, Simone, Napoli, 2012) 2005. 7 Case C-274/12 P Telefónica v Commission [EU:C:2013:852] para 29. 8 Case C-314/85 Foto-Frost [EU:C:1987:452] para 15; Case C-344/04 IATA and ELFAA [EU:C:2006:10] para 27; Case C-119/05 Lucchini [EU:C:2007:434] para 53. 9 Case C-314/85 Foto-Frost [EU:C:1987:452] para 20; Case C-221/88 Busseni [EU:C:1990:84] para 14; Case C-27/95 Bakers of Nailsea [EU:C:1997:188] para 20; Case C-461/03 Gaston Schul Douane-expediteur [EU:C:2005:742] para 17; Case C-344/04 IATA and ELFAA [EU:C:2006:10] para 27.

Decision to Request a Preliminary Ruling on Validity 365 whether a decision on the matter is necessary to enable it to give judgment and consequently whether it should request the Court of Justice to rule on that question.10 Therefore, the fact that the validity of an EU act is contested before a national court does not in itself warrant referral of a question to the Court of Justice for a preliminary ruling,11 and said national court is not even compelled to consider that a question concerning the validity of an EU act has been raised within the meaning of Article 267 TFEU just because a party contends that this is the case.12 The fact that the national court decides alone whether to refer a question on validity also entails that, where an order for reference by the national court merely seeks to obtain an interpretation of a provision of EU law without stating that it has any doubts as to the validity of this provision, there is no obligation for the Court of Justice to examine a validity question which may be raised in the written observations submitted to it by interested persons13 in the course of the written part of the procedure.14 A national court may consider that an EU act is valid without making a preliminary reference. Even if the validity of an EU act is contested before a national court, such a court may find that there is no doubt as to the validity of the contested EU act and that, accordingly, it is not necessary to make a reference to the Court of Justice on that point. The national court may consider the validity of the EU act at issue and, if it finds that the grounds put forward by the parties in support of invalidity are unfounded, it may dismiss them and conclude that the measure is valid. Indeed, by taking such action, the national court is not calling into question the existence and lawfulness of the EU measure,15 and is therefore not bound to make a request for preliminary ruling on the validity of that measure.

3.697

Only the Court of Justice has jurisdiction to declare an EU act invalid. If a national court has grounds to believe that an EU act is invalid, it is not allowed to make a declaration to that effect, and there are no exceptions to that rule.16 The Court of Justice has held in that regard that, since Article 263 TFEU gives the Court of Justice of the European Union17 exclusive jurisdiction to declare void an act of an EU institution or body, the coherence of the system requires that, where the validity of an EU act is challenged before a national court, the power to declare the act invalid must also be reserved to the Court of Justice of the European Union. It is indeed the latter that is in the best position to decide on the validity of EU acts. On the one hand, under Article 23 of the

3.698

10 Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [EU:C:2002:741] para 34; Case C-308/06 The International Association of Independent Tanker Owners and Others [EU:C:2008:312] para 31; Case C-77/09 Gowan Comércio Internacional e Serviços [EU:C:2010:803] para 24; Case C-1/14 Base Company and Mobistar [EU:C:2015:378] para 45. If an answer to the question referred is not necessary for the national court to give judgment, the reference for preliminary ruling is inadmissible (cf paras 2.131–2.135). 11 Case C-344/04 IATA and ELFAA [EU:C:2006:10] para 28; Case T-47/02 Danzer v Council [EU:T:2006:167] para 37. 12 Case C-316/09 MSD Sharp & Dohme [EU:C:2011:275] para 23; Case C-687/13 Fliesen-Zentrum Deutschland [EU:C:2015:573] para 42. 13 Statute, Art 23. 14 Joined Cases C-376/05 and C-377/05 Brünsteiner and Autohaus Hilgert [EU:C:2006:753] paras 27–29. 15 Case C-314/85 Foto-Frost [EU:C:1987:452] para 14. 16 Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest [EU:C:1991:65] para 17; Case C-465/93 Atlanta Fruchthandelsgesellschaft and Others (I) [EU:C:1995:369] para 21; Case C-6/99 Greenpeace France and Others [EU:C:2000:148] para 54; Case C-344/04 IATA and ELFAA [EU:C:2006:10] para 27; Case C-366/10 Air Transport Association of America and Others [EU:C:2011:864] para 48. In Case C-461/03 Gaston Schul Douane-expediteur [EU:C:2005:742] para 23, the Court of Justice thus ruled that reducing the length of the proceedings cannot serve as justification for undermining the sole jurisdiction of the EU Courts to rule on the validity of EU law. 17 Throughout this book, the term ‘Court of Justice of the European Union’ refers to the institution as mentioned in Art 13(1) TEU and includes both the upper-tier Court of Justice and the lower-tier General Court. The power to hear and determine actions for annulment is split between the General Court and the Court of Justice (cf paras 1.18–1.21), while the power to give preliminary rulings on validity of EU measures is entirely reserved to the Court of Justice.

366 Preliminary Rulings on Validity of EU Measures Statute, EU institutions whose acts are challenged are entitled to participate in the proceedings before the Court of Justice in order to defend the validity of the acts in question. On the other hand, under Article 24(2) of the Statute, the Court of Justice may require the Member States and EU institutions that are not participating in the proceedings to supply all information which it considers necessary for the purposes of the case before it.18 Finally, it is also worth mentioning that the reservation of the power to the Court of Justice to declare an EU act invalid means that, even though this is not specifically stated in Article 267 TFEU, all national courts or tribunals – ie not only those courts against whose decisions there is no remedy under national law – have an obligation to submit a request for a preliminary ruling to the Court of Justice where they consider an EU act to be invalid.19 3.699

The national court may suspend the implementation of national measures where the underlying EU act may be invalid. Where a national court suspends the implementation of a national measure that is based on an EU act whose validity is challenged, it has an obligation to refer to the Court of Justice a question on the validity of that act.20 In such a case, suspension of enforcement of a national measure adopted in implementation of an EU act may be granted by a national court if certain conditions are met. First, that court must entertain serious doubts as to the validity of the EU act. Secondly, there must be urgency and a threat of serious and irreparable damage to the applicant. Thirdly, the national court must take due account of the EU’s interests.21 In such a case, the national court cannot limit itself to referring the question on validity to the Court of Justice for a preliminary ruling, but must, when making the interim order, set out the reasons for which it considers that the Court should find the EU act to be invalid.22 The national court should explain, in particular, the precise reasons which led it to question the validity of certain provisions of EU law and specify the grounds of invalidity which, consequently, appear to it capable of being upheld.23

3.8.3. Subject Matter of the Question Referred 3.700

The question must concern the validity of acts of EU institutions or bodies. Under Article 267 TFEU, the Court of Justice has jurisdiction to give preliminary rulings on the validity of ‘acts of the [EU] institutions, bodies, offices or agencies’ (throughout this book, these are referred to as ‘institutions or bodies’). Article 267 TFEU therefore empowers national courts and tribunals to refer to the Court questions concerning the validity of all acts of the EU institutions and bodies, without distinction (cf paras 2.97–2.100).24 The Court has thus inter alia examined the validity 18 Case C-314/85 Foto-Frost [EU:C:1987:452] paras 17–18. 19 Case C-314/85 Foto-Frost [EU:C:1987:452]. 20 Case C-334/95 Krüger [EU:C:1997:378] para 50. 21 Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest [EU:C:1991:65] para 33; Case C-465/93 Atlanta Fruchthandelsgesellschaft and Others (I) [EU:C:1995:369] para 51; Case C-304/09 Commission v Italy [EU:C:2010:812] para 45. See also Joined Cases C-188/10 and C-189/10 Melki and Abdeli [EU:C:2010:363] paras 53–56; Case C-112/13 A [EU:C:2014:2195] paras 40–44. 22 Case C-304/09 Commission v Italy (State aid for newly listed companies) [EU:C:2010:812] para 46. 23 Case C-547/14 Philip Morris Brands and Others [EU:C:2016:325] para 48; Case C-349/16 T.KUP [EU:C:2017:469] para 17. 24 Case C-41/74 Van Duyn [EU:C:1974:133] para 12; Case C-322/88 Grimaldi [EU:C:1989:646] para 8; Case C-258/14 Florescu and Others [EU:C:2017:448] para 30. As already indicated in Chapter 2.2. Preliminary Rulings on Interpretation (cf para 2.100), the EU act must be in force (see, eg Case C-74/99 Imperial Tobacco and Others [EU:C:2000:547] para 5). It must not necessarily have been implemented in national law (see, eg Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [EU:C:2002:741] para 40). Furthermore, the EU act need not necessarily be binding

Assessment of Validity 367 of the provisions of EU regulations,25 EU directives,26 EU decisions and communications.27 Even though judgments of the Court of Justice can be the subject matter of a request for a preliminary ruling on interpretation (cf para 2.101), such judgments do not rank among the EU acts whose validity is open to review in proceedings under Article 267 TFEU. The Court has held in that regard that a judgment in which the Court gives a preliminary ruling on the interpretation or validity of an EU act conclusively determines a question of EU law and is binding on the national court for the purposes of the decision to be given by it in the main proceedings.28 Where the question does not concern the validity of an act of an EU institution or body (either because the author of the act is an entity that cannot be recognised an EU institution, body, office or agency,29 or because the question relates to the validity of national law30), it will be considered inadmissible. The validity of primary EU law does not fall within the jurisdiction of the Court of Justice. It follows from the wording of Article 267 TFEU that the examination of the validity of primary EU law does not fall within the Court of Justice’s jurisdiction.31 Likewise, the Court has no jurisdiction to rule on the validity of adjustments set out in an annex to an Act of Accession, which are the subject of an agreement between the Member States and the State that applied for EU membership.32 However, since the Treaty of Lisbon introduced, in addition to the ordinary procedure for the revision of the FEU Treaty, a simplified revision procedure under Article 48(6) TEU, the Court has jurisdiction to examine, in the light of the conditions laid down in said article, the validity of a decision of the European Council amending all or part of the provisions of Part Three of the FEU Treaty.33

3.701

3.8.4. Assessment of Validity Article 267 TFEU does not limit the grounds on which the validity of an EU measure may be contested. As indicated above (cf para 3.700), according to Article 267 TFEU, the Court of Justice has jurisdiction to give preliminary rulings concerning the validity of acts adopted by the institutions, bodies, offices or agencies of the EU. The jurisdiction of the Court in this regard is

(see, eg Case C-526/14 Kotnik and Others [EU:C:2016:570] paras 31–34 and 45). It should also be noted that the same order for reference may contain questions regarding both the interpretation and the validity of EU acts (see, eg Case C-19/13 Fastweb [EU:C:2014:2194]; Case C-612/16 C & J Clark International [EU:C:2019:508]). Finally, nothing prevents the Court of Justice, at the request of a national court and in the context of the Court’s collaboration with that court pursuant to Article 267 TFEU, from ruling on the validity of a measure taken by the EU institutions or bodies which it has already had occasion to interpret (Joined Cases C-393/99 and C-394/99 Hervein and Others [EU:C:2002:182]). 25 See, eg Case C-426/16 Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others [EU:C:2018:335]; Case C-592/17 Baby Dan [EU:C:2018:913]; Case C-644/17 Eurobolt [EU:C:2019:555]. 26 See, eg Case C-267/16 Buhagiar and Others [EU:C:2018:26]; Case C-151/17 Swedish Match [EU:C:2018:938]; Case C-220/17 Planta Tabak [EU:C:2019:76]; Case C-264/18 P. M. and Others [EU:C:2019:472]. 27 See, eg Case C-526/14 Kotnik and Others [EU:C:2016:570] paras 31–34; Case C-180/15 Borealis and Others [EU:C:2016:647]; Case C-281/16 Vereniging Hoekschewaards Landschap [EU:C:2017:774]; Case C-493/17 Weiss and Others [EU:C:2018:1000]; Case C-589/17 Prenatal [EU:C:2019:631]. 28 Order of 5 March 1986 in Case C-69/85 Wünsche [EU:C:1986:104] paras 11–16. 29 Such as, for instance, the validity of conclusions of a Committee established in order to ensure close and e ffective cooperation between the Member States and the Commission in the field of the Customs Code. See Case C-11/05 Friesland Coberco Dairy Foods [EU:C:2006:312] para 37. 30 Order of 27 June 1979 in Case C-105/79 Godard [EU:C:1979:168]. 31 Case C-370/12 Pringle [EU:C:2012:756] para 33. 32 Case C-572/15 F. Hoffmann-La Roche [EU:C:2016:739] para 30. 33 Case C-370/12 Pringle [EU:C:2012:756] paras 34–37.

3.702

368 Preliminary Rulings on Validity of EU Measures not limited as to the grounds on which the validity of those measures may be contested.34 Before a national court or tribunal, an individual may rely, inter alia, on all the complaints that could be put forward in the context of an action for annulment under Article 263 TFEU,35 ie lack of competence to adopt the contested act, infringement of an essential procedural requirement, infringement of EU law or misuse of powers (cf Section 3.1.7. Grounds for Review). An applicant may, for instance, challenge the validity of EU measures before national courts on the ground that they contravene the rules of the Treaties,36 the general principles of EU law37 or the provisions of any EU act which is placed higher in the hierarchy of norms than the measure whose validity is challenged38 (cf para 3.275). 3.703

International agreements as norms of reference? The legality of EU acts may be assessed against rules of international law,39 since international agreements concluded by the EU are binding upon its institutions and prevail over acts of the EU institutions. However, natural or legal persons may only rely on those rules of international law which are capable of creating rights of which interested parties may avail themselves in a court of law.40 The use of international agreements as a norm of reference is thus subject to several conditions. First, the EU must be bound by those rules. Secondly, the nature and the broad logic of the international agreement must permit the validity of the act of EU law to be reviewed in the light of the provisions of that agreement. Finally, the provisions of that agreement must appear, as regards their content, to be unconditional and sufficiently precise41 (cf paras 3.290–3.293). The Court of Justice thus held that, given their nature and structure, the WTO agreements are not, in principle, among the rules in the light of which the Court is to review the legality of measures adopted by the EU institutions.42 However, where the EU intended to implement a particular obligation assumed in the context of the WTO through the measure whose validity is contested, or where the EU measure refers expressly to precise provisions of the agreements and understandings contained in the annexes to the WTO Agreement, it is for the Court to review the legality of the EU measure in question in the light of the WTO rules.43

3.704

The assessment of the validity of an EU act is based on the situation which existed at the time of its adoption. By analogy with the case law concerning actions for annulment (cf para 3.304),

34 Joined Cases C-21/72 to 24/72 International Fruit Company and Others [EU:C:1972:115] para 6; Case C-162/96 Racke [EU:C:1998:293] para 26. 35 Case C-644/17 Eurobolt [EU:C:2019:555] para 25. 36 Case C-114/76 Bela-Mühle Bergmann [EU:C:1977:116] paras 5–6; Case C-27/95 Bakers of Nailsea [EU:C:1997:188] para 16. 37 Joined Cases C-117/76 and C-16/77 Ruckdeschel and Others [EU:C:1977:160] para 7; Case C-265/87 Schräder HS Kraftfutter [EU:C:1989:303] para 15; Case C-27/95 Bakers of Nailsea [EU:C:1997:188] para 17. 38 See, eg Case C-207/17 Blaas [EU:C:2018:840], in which a regulation imposing definitive anti-dumping duties was challenged through a preliminary reference on validity on the ground that it contravened Art VI of the General Agreement on Tariffs and Trade (OJ 1994, L 336, 11) as well as a decision of the WTO Dispute Settlement Body (cf para 3.703). 39 Joined Cases C-21/72 to C-24/72 International Fruit Company and Others [EU:C:1972:115] para 6; Case C-162/96 Racke [EU:C:1998:293]. This includes rules of customary international law. However, since a principle of customary international law does not have the same degree of precision as a provision of an international agreement, judicial review must necessarily be limited to the question whether, in adopting the act in question, the EU institutions made manifest errors of assessment concerning the conditions for applying those principles (Case C-366/10 Air Transport Association of America and Others [EU:C:2011:864] paras 109–110). 40 Case C-9/73 Schlüter [EU:C:1973:110] para 27. 41 Case C-366/10 Air Transport Association of America and Others [EU:C:2011:864] paras 50–54. 42 Case C-149/96 Portugal v Council (textiles) [EU:C:1999:574] para 47; Order of 2 May 2001 in Case C-307/99 OGT Fruchthandelsgesellschaft [EU:C:2001:228] para 24; Case C-93/02 P Biret International v Council [EU:C:2003:517] para 52. 43 Case C-207/17 Blaas [EU:C:2018:840] para 48 and the case law cited.

Relationship with Article 263 TFEU 369 the assessment of the validity of an EU measure which the Court is called upon to undertake on a reference for a preliminary ruling must, in principle, be based on the situation which existed at the time when that measure was adopted.44 Measures of inquiry may be necessary to assess the validity of an EU act. While measures of inquiry – which essentially aim at establishing the set of facts – are not prescribed in preliminary proceedings on interpretation, since the facts of the litigation are established by the national court making the preliminary reference, such measures may be ordered in preliminary ruling proceedings concerning the validity of an EU act (cf para 4.472) insofar as they are necessary to assess that validity.45

3.705

A question on the interpretation of an EU act may be construed by the Court as a question on its validity. If it appears that the real purpose of a question on interpretation submitted by a national court in fact concerns the validity of an EU act, the Court of Justice may assess the validity of that act.46 The Court usually informs the national court of its view in this regard, without compelling the national court to comply with any additional formal requirements.

3.706

3.8.5. Relationship with Article 263 TFEU Direct and incidental review. Preliminary references on validity complement actions for annulment insofar as a natural or legal person who has no standing to seek direct review of an EU act through Article 263 TFEU may still try to obtain incidental review under Article 267 TFEU (cf para 3.692). To that effect, the party needs to challenge the national implementing measures of the purportedly illegal EU act before a national court, and plead that the unlawfulness of the national implementing measures stems from the illegality of the EU act. Through this argumentation, the party may cause the national judge to make a preliminary reference on the validity of the EU act to the Court of Justice. If he is successful, the Court of Justice declares the EU act invalid, which means, inter alia, that the national court cannot apply that act to the party, the latter thus obtaining a similar result as if he had challenged the EU act directly through an action for annulment. An illustration is provided by the Blaas case.47 Rotho Blaas, the applicant in the main case before the national court, sought the review of several anti-dumping regulations adopted by the Council and the Commission on the basis of which the Italian customs authority calculated the anti-dumping duties in Rotho Blaas’s respect and obliged it to pay them. While some categories of economic operators are directly and individually concerned by anti-dumping regulations (meaning that they have standing to bring an action for annulment under the second variant of Article 263(4) TFEU), Rotho Blaas was in none of those categories, and, in addition, the presence of national implementing measures (the decision of the customs authority) entailed by the contested regulations excluded standing under the third variant of Article 263(4) TFEU (cf para 3.190). The preliminary reference on validity was therefore the only possibility for Rotho Blaas to obtain a review of legality from the EU Courts. The applicant thus brought an action before a national court against the decision of the Italian customs authority in which the customs

44 Joined Cases C-248/95 and C-249/95 SAM Schiffahrt and Stapf [EU:C:1997:377] para 46. 45 See, eg Case C-338/10 GLS [EU:C:2012:158] paras 15–16. 46 Case C-16/65 Schwarze [EU:C:1965:117] p. 886; Joined Cases C-95/99 to C-98/99 and C-180/99 Khalil and Others [EU:C:2001:532] para 29. 47 Case C-207/17 Blaas [EU:C:2018:840].

3.707

370 Preliminary Rulings on Validity of EU Measures duties were calculated by reference to the anti-dumping regulations, and pleaded that the decision was unlawful because it implemented illegal EU acts (the anti-dumping regulations). This reasoning convinced the national court to make a preliminary reference on validity. The Court of Justice recognised that the applicant had the right to incidental review, and found the preliminary reference admissible.48 3.708

Clearly existing standing to bring an action for annulment precludes, as a rule, the right to seek incidental review if no such action was brought in due time. Since national implementing measures are often the acts through which the negative effects of an EU act tangibly materialise in respect of parties, they often attempt to challenge those measures before the national courts by questioning the legality of the underlying EU act, even if they had the possibility of seeking direct review through an action for annulment. However, as mentioned above (para 3.237), the Court of Justice has placed restrictions on incidental review where the applicant has the right to bring an action for annulment. The case law precludes that parties circumvent the time limits laid down in Article 263(6) TFEU by contesting, by means of incidental review, the validity of EU acts that have become definitive in their respect (cf para 1.12), at least in the case of decisions and provisions of acts of general application which are assimilated to decisions. As was held in National Farmers’ Union, a Member State is not allowed to plead, in a procedure before a national judge, the invalidity of an EU decision addressed to it where it did not challenge that decision directly in due time.49 Furthermore, under the TWD Textilwerke Deggendorf line of case law, a natural or legal person who undoubtedly had standing to bring an action for annulment against an EU act, but failed to do so within the time limits, may not seek a preliminary reference on validity, either.50 In these cases, the preliminary reference will be dismissed as inadmissible. On the one hand, the Court of Justice justified this approach by considering that allowing incidental review in such circumstances would be detrimental to legal certainty, since it would in effect enable the person concerned to overcome the definitive nature which the decision assumes as against that person once the time limit for bringing an action has expired.51 On the other hand, it has held that the action for annulment, which is complemented by the possibility of appealing against the ruling of the General Court, provides a particularly appropriate procedural framework for the thorough examination, both parties being duly heard, of legal and factual questions.52

3.709

When does TWD Textilwerke Deggendorf exclude incidental review? Two aspects of the TWD Textilwerke Deggendorf line of case law deserve closer attention. First, this case law only excludes incidental review in respect of (i) decisions addressed to the person (including Member States53) who wishes to seek review and (ii) decisions addressed to others or provisions of acts 48 Case C-207/17 Blaas [EU:C:2018:840] paras 32–41. 49 Case C-241/01 National Farmers’ Union [EU:C:2002:604] para 36. 50 Case C-188/92 TWD Textilwerke Deggendorf [EU:C:1994:90] para 17; Case C-239/99 Nachi Europe [EU:C:2001:101] para 30; Case C-667/13 Banco Privado Português and Massa Insolvente do Banco Privado Português [EU:C:2015:151] para 28; Case C-135/16 Georgsmarienhütte and Others [EU:C:2018:582] para 43. 51 Case C-188/92 TWD Textilwerke Deggendorf [EU:C:1994:90] paras 17–18. In Case C-135/16 Georgsmarienhütte and Others [EU:C:2018:582] (para 16), the Court considered that this case law applies even if the applicant relies, before the national court, on the invalidity of the EU measure before the expiry of the time limit for challenging that decision, the applicant thus having no intention to overcome the definitive nature of the EU measure at stake. 52 Case C-135/16 Georgsmarienhütte and Others [EU:C:2018:582] para 19. In the event of proceedings being brought concurrently before the General Court in the context of an action for annulment and the Court of Justice in the context of a request for a preliminary ruling on validity, the principle of good administration may warrant the Court of Justice having recourse, if it considers it appropriate to do so, to Art 54(3) of the Statute in order to stay the proceedings before it, in order to give preference to the proceedings before the General Court (Case C-135/16 Georgsmarienhütte and Others [EU:C:2018:582] para 25). 53 See Case C-241/01 National Farmers’ Union [EU:C:2002:604].

Relationship with Article 263 TFEU 371 of general application which concern a natural or legal person directly and individually in such a way as to individualise it in the same way as a decision addressed to it would do. Secondly, as regards natural or legal persons, their right to seek incidental review by means of a preliminary reference on validity is only excluded if they, according to the wording used by the Court, ‘without any doubt’,54 ‘beyond doubt’55 or ‘undoubtedly’56 had the right to bring an action for annulment but did not exercise that right in due time. This issue is clear-cut in the case of the first and third variants of Article 263(4) TFEU (cf para 3.128). If the EU act was addressed to the applicant, he undoubtedly had standing to bring an action for annulment under the first variant, thus his right to incidental review is excluded. Conversely, when the applicant challenges a national implementing measure ‘entailed’ by the contested EU act, he clearly had no standing under the third variant. Legal examination is, however, required as to whether the applicant undoubtedly had standing under the second variant of Article 263(4) TFEU. The Court of Justice carries out its assessment on a case-by-case basis, by relying on the concept of direct and individual concern as defined by established case law. For instance, in the recent Georgsmarienhütte case, the Court of Justice held that the applicants undoubtedly had standing to bring an action for annulment against the contested Commission decision declaring a State aid scheme illegal, since they were beneficiaries of aid who had a reimbursement obligation under the contested decision, which means, under settled case law, that they were directly and individually concerned by that decision.57 As they did not bring an action for annulment in due time, the preliminary reference on validity in their case was dismissed as inadmissible.58 This case is also noteworthy because it concerns a regulatory act59 (a Commission decision declaring an aid scheme illegal, cf para 3.187) which concerned the applicants directly and individually, in the same way as a decision addressed to them, by reason of the reimbursement obligation. If the applicant has brought an action for annulment in due time, he may also raise the issue of invalidity in national court proceedings. Since the TWD Textilwerke Deggendorf case law was based on the need to ensure legal certainty and pursues the goal that the deadlines in Article 263(6) could not be circumvented by incidental review, it does not preclude applicants who have brought an action for annulment against the contested EU act in due time from also seeking incidental review.60 The Court of Justice held that the preliminary ruling procedure under Article 267 TFEU establishes direct cooperation between the Court of Justice and the national courts. Within the framework of this cooperation, the latter are closely involved in the correct application and uniform interpretation of EU law and also in the protection of individual rights conferred by the Union legal order. It follows that the need for a party to bring an action for annulment on the basis of Article 263 TFEU in order to challenge the legality of an EU act, when that party undoubtedly has standing to do so, is without prejudice to his possibility to challenge, before the competent national courts, the legality of national measures implementing that act, provided that he has indeed brought that annulment action in due time.61

54 Case C-188/92 TWD Textilwerke Deggendorf [EU:C:1994:90] para 24. 55 Case C-550/09 E and F [EU:C:2010:382] para 48. 56 Case C-343/07 Bavaria and Bavaria Italia [EU:C:2009:415] para 39. 57 Case C-135/16 Georgsmarienhütte and Others [EU:C:2018:582] paras 30–33. 58 Case C-135/16 Georgsmarienhütte and Others [EU:C:2018:582] paras 43–44. 59 See Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [EU:C:2018:873] paras 28–39; Case T-220/13 Scuola Elementare Maria Montessori v Commission [EU:T:2016:484] para 52. 60 Case C-550/09 E and F [EU:C:2010:382] paras 46 and 48; Case C-494/09 Bolton Alimentari [EU:C:2011:87] paras 22–23; Case C-72/15 Rosneft [EU:C:2017:236] para 67; Case C-135/16 Georgsmarienhütte and Others [EU:C:2018:582] para 17. 61 Case C-135/16 Georgsmarienhütte and Others [EU:C:2018:582] paras 21–22 and 43.

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372 Preliminary Rulings on Validity of EU Measures 3.711

The national court must stay its proceedings. If a party has, within the period prescribed in Article 263(6) TFEU, brought an action for annulment of an EU act, it is for the national court to decide whether to stay proceedings until a definitive decision has been given in the action for annulment or to refer a question to the Court of Justice for a preliminary ruling (which also implies staying the national proceedings). This obligation to stay the proceedings follows from the principle of sincere cooperation: the national court should avoid reaching a decision that runs counter to the contested EU act,62 which is deemed to be valid until the EU Courts annul it or declare it invalid.

3.8.6. Consequences of the Ruling 3.712

General. If the Court of Justice reaches the conclusion that the contested EU act is illegal, it declares it invalid in the operative part of the final judgment ending the case. If the Court finds no illegality, it rules, in the operative part, that the examination of the national court’s question has revealed no factor of such a kind as to affect the validity of the contested act.

3.8.6.1. Effects for National Authorities and Courts 3.713

National authorities and courts must draw all consequences in their national legal order from the declaration of invalidity. The invalidity of an EU provision results directly from the judgment of the Court of Justice declaring that invalidity, and it is for the national authorities and courts of the Member States to draw the consequences from that declaration in their national legal order.63 All ancillary questions should be settled in terms of national law.64

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Where an EU act is not declared invalid, national courts may still refer questions as to its validity. Where the Court has found no grounds to declare an EU act invalid, it does not declare said act valid, but instead indicates that the question referred has not ‘revealed any factors of such a kind as to affect the validity’ of said act.65 Since the EU act in question is not deemed to be necessarily valid, the same national court or any other court may still refer to the Court of Justice questions relating to the validity of said act.

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The ruling of the Court of Justice is definitive and has an erga omnes effect. Despite being addressed only to the national court which brought the matter before the Court of Justice, a declaration of invalidity of an EU act is sufficient reason for any other national court to regard that act as invalid for the purposes of a judgment which it has to give.66 National courts, on their

62 Case C-344/98 Masterfoods and HB [EU:C:2000:689] paras 54–58; Case C-135/16 Georgsmarienhütte and Others [EU:C:2018:582] para 24. 63 Case C-23/75 Rey Soda and Others [EU:C:1975:142] para 51; Order of 5 February 2007 in Case T-91/05 Sinara Handel v Council and Commission [EU:T:2007:31] para 65; Order of 8 November 2007 in Case C-421/06 Fratelli Martini and Cargill [EU:C:2007:662] para 53. For national authorities, this can include being precluded from continuing to apply a system for the payment of family benefits which is contrary to EU law, thus making such a system, which excludes foreign nationals, of general application (Case C-359/87 Pinna [EU:C:1989:107] para 13). 64 Case C-130/79 Express Dairy Foods [EU:C:1980:155] para 14. 65 See, eg Case C-344/04 IATA and ELFAA [EU:C:2006:10]; Case C-361/11 Hewlett-Packard Europe [EU:C:2013:18]; Case C-390/15 RPO [EU:C:2017:174]; Case C-592/17 Baby Dan [EU:C:2018:913]. 66 Case C-66/80 International Chemical Corporation [EU:C:1981:102] para 13; Case C-112/83 Société des produits de maïs [EU:C:1985:86] para 16; Order of 8 November 2007 in Case C-421/06 Fratelli Martini and Cargill [EU:C:2007:662] para 65; Order of 11 June 2015 in Case C-405/14 PST CLC [EU:C:2015:402] para 30.

Consequences of the Ruling 373 part, may not apply the act which has been declared invalid, since applying such EU act despite a declaration of invalidity would create serious uncertainty as to the applicable EU law.67 That does not mean, however, that national courts are deprived of the power given to them by Article 267 TFEU, since they may still decide whether there is a need to raise questions arising in particular as to the grounds, the scope and possibly the consequences of the invalidity established earlier.68 The ruling in principle has a retroactive effect. In principle, a judgment of the Court in proceedings for a preliminary ruling declaring an EU act invalid takes effect, like a judgment annulling an act, from the date on which the act entered into force, with all the consequences which that entails.69

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The Court of Justice may nonetheless limit the temporal effects of a declaration of invalidity. While Article 263(6) TFEU provides that actions for annulment may only be brought within two months of the publication, notification or becoming aware of the EU measure concerned, Article 267 TFEU does not set any time limit for lodging a request for preliminary ruling on the validity of such a measure. This can give rise to significant legal uncertainty for legal relationships based on the contested EU measure, which arose before the ruling of the Court declaring the measure invalid. Therefore, where necessary, the Court of Justice may limit the temporal effect of an invalidity ruling, in the interest of the uniform application of EU law and to ensure legal certainty.70 The Court stated that, where it is justified by overriding considerations of legal certainty, Article 264(2) TFEU, which is also applicable by analogy to preliminary references on validity made under Article 267 TFEU, confers on the Court the discretion to decide, in each particular case, which specific effects of the act declared invalid must be regarded as definitive.71 The limitation of the invalidity’s temporal effects is made in the judgment itself.72 For instance, such a limitation was decided on the basis of the large number of publications of lists of beneficiaries of agricultural funds, made on the basis of rules which were regarded as being valid,73 or in view of the application over a long period of a State aid scheme later declared invalid and the great deal of aid paid under that scheme, affecting a large number of operators.74 On the contrary, the Court has not limited the effects of an invalidity declaration where the contested EU measure applied only during an extremely short period or where no arguments concerning overriding

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67 Case C-66/80 International Chemical Corporation [EU:C:1981:102] para 12. 68 Case C-66/80 International Chemical Corporation [EU:C:1981:102] para 14. 69 Case C-228/92 Roquette Frères [EU:C:1994:168] paras 17–19; Case C-212/94 FMC and Others [EU:C:1996:40] para 55. 70 Case C-228/92 Roquette Frères [EU:C:1994:168] paras 17–21. 71 Case C-333/07 Régie Networks [EU:C:2008:764] para 121; Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert [EU:C:2010:662] para 93; Joined Cases C-191/14, C-192/14, C-295/14, C-389/14 and C-391/14 to C-393/14 Borealis Polyolefine and Others [EU:C:2016:311] para 103; Case C-585/15 Raffinerie Tirlemontoise [EU:C:2017:105] para 37. The principle of legitimate expectations, which is the corollary of the principle of legal certainty, cannot, however, be relied on by a Member State in order to avoid the consequences of a decision of the Court declaring an EU provision invalid, since it would jeopardise the possibility for individuals to be protected against conduct of the public authorities based on unlawful rules (Joined Cases C-177/99 and C-181/99 Ampafrance and Sanofi [EU:C:2000:470] para 67). 72 Case C-212/94 FMC and Others [EU:C:1996:40] para 56. 73 See Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert [EU:C:2010:662] para 94. The Court held that the invalidity of the contested EU measures did not allow any action to be brought to challenge the effects of the publication of the lists of beneficiaries of aid carried out by the national authorities on the basis of those provisions during the period prior to the date on which the ruling of the Court was delivered. 74 See Case C-333/07 Régie Networks [EU:C:2008:764] para 127. The Court suspended the effects of the invalidity declaration until the adoption of a new decision by the Commission.

374 Preliminary Rulings on Validity of EU Measures considerations of legal certainty had been put forward.75 The Court can also decide to exempt a person or certain categories of persons from the temporal limitation attached to its ruling.76 It is for the Court of Justice, where it makes use of the possibility of limiting the effect on past events of a declaration in proceedings under Article 267 TFEU that a measure is void, to make the relevant decisions. It may decide that an exception to that temporal limitation of the effect of its judgment may be made in favour of the party which brought the action before the national court or of any other trader which took similar steps before the declaration of invalidity. Conversely, it may decide that a declaration of invalidity applicable only to the future constitutes an adequate remedy even for traders who took action at the appropriate time with a view to protecting their rights.77 When the Court of Justice undertakes to limit the temporal effects of a declaration of invalidity, it ensures that the persons concerned are not deprived of the right to effective judicial protection in the event of a breach of EU law by the institutions or bodies and that the practical effect of Article 267 TFEU is not jeopardised.78

3.8.6.2. Effects for EU Institutions and Bodies 3.718

Application of Article 266 TFEU. The FEU Treaty does not expressly lay down the consequences which flow from a declaration of invalidity within the framework of a reference for preliminary ruling. However, Article 266 TFEU, which contains rules as to the effects of the annulment of an EU act within the framework of a direct action, is applicable by analogy. Under this article, the institution (or body) whose act has been declared void shall be required to take the necessary measures to comply with the judgment of the Court of Justice.

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The institution or body concerned must adopt all appropriate measures in order to remedy the illegality. It is for the EU legislature (or the institution or body concerned) to act upon a ruling declaring an EU act invalid by adopting such measures as may be appropriate in order to remedy the illegality.79 In order to fulfil that obligation, the institutions or bodies concerned are required to have regard not only to the operative part of the declaration of invalidity, but also to the grounds which led to the judgment and constitute its essential basis, insofar as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution or body concerned must take into account when replacing the act annulled or declared invalid.80 Therefore, only a concrete examination of the EU measure which has been declared invalid and of the legal framework of which it is a part enables the determination of the necessary measures that must be taken to remedy the illegality. Whereas, in some cases, the declaration of invalidity concerns an autonomous provision and has no repercussion on other 75 Case C-228/99 Silos [EU:C:2001:599] para 37. 76 In Case C-333/07 Régie Networks [EU:C:2008:764] para 127, the Court excluded from the temporal limitation of the effects of the judgment those undertakings which, prior to the date of delivery of the judgment, had brought legal proceedings or made an equivalent complaint. 77 Case C-112/83 Société des produits de maïs [EU:C:1985:86] para 18. 78 Case C-228/92 Roquette Frères [EU:C:1994:168] para 27; Case C-212/94 FMC and Others [EU:C:1996:40] paras 57–58. 79 Case C-300/86 van Landschoot [EU:C:1988:342] para 22; Joined Cases C-120/06 P and C-121/06 P FIAMM and Others v Council and Commission [EU:C:2008:476] para 123; Case C-333/07 Régie Networks [EU:C:2008:764] para 124; Joined Cases C-191/14, C-192/14, C-295/14, C-389/14 and C-391/14 to C-393/14 Borealis Polyolefine and Others [EU:C:2016:311] para 107; Joined Cases C-283/14 and C-284/14 CM Eurologistik and GLS [EU:C:2016:57] para 48. 80 Joined Cases C-283/14 and C-284/14 CM Eurologistik and GLS [EU:C:2016:57] paras 49–52.

Consequences of the Ruling 375 provisions of the relevant legal framework, in others, such a declaration creates a legal vacuum or makes the legal framework inconsistent and therefore requires the intervention of the EU legislature.81 The EU institutions or bodies must also make good the damage which has resulted from the unlawful act. Establishing the non-contractual liability of the EU requires that there is fault, harm and a causal link between the two82 (cf para 3.426). Where the Court has made use of the possibility afforded by Article 264 TFEU by limiting the effects of a declaration of invalidity, compensation requested for alleged loss in respect thereof will be rejected.83

81 Order 82 Case 83 Case

of 8 November 2007 in Case C-421/06 Fratelli Martini and Cargill [EU:C:2007:662] para 55. T-220/97 H & R Ecroyd v Commission [EU:T:1999:106] para 56. C-20/88 Roquette Frères v Commission [EU:C:1989:221] paras 19–20.

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3.9. Opinions on International Agreements to be Concluded by the EU [written by Viktor Bottka1]

3.9.1. Overview 3.721

Notion. The opinion proceedings constitute the ex ante review of the compatibility of international agreements, to be concluded by the EU, with the Treaties. The purpose of the opinions is to forestall legal disputes that could arise from the non-conformity of an existing international obligation of the Union with EU law.2 Opinions can be requested from the Court of Justice by a Member State, the Parliament, the Council or the Commission prior to the conclusion of an international agreement by the EU. The subject matter of these proceedings is thus ‘draft’ or ‘envisaged’ international agreements. These proceedings are optional, ie there is no obligation to have recourse to them. If the Court of Justice delivers an adverse opinion, the envisaged agreement may not enter into force unless it is amended or the Treaties are revised. Although opinions on draft international agreements are relatively rare, they tend to be of great importance for the development of the Union.3 In the own words of the Court: That procedure is a special procedure of collaboration between the Court of Justice on the one hand and the other [EU] institutions and the Member States on the other whereby, at a stage prior to conclusion of an agreement which is capable of giving rise to a dispute concerning the legality of [an EU] act which concludes, implements or applies it, the Court is called upon to ensure, in accordance with [Article 218(11) TFEU], that in the interpretation and application of the [Treaties] the law is observed.4

In the case of opinions, the Court of Justice follows special procedural rules that are explained in Chapter 4.6. Procedure in Opinions on International Agreements to be Concluded by the EU. 3.722

Article 218(11) TFEU. Article 218(11) TFEU (ex Article 300(6) TEC) defines the framework of the opinion proceedings as follows: 11. A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised.

1 Member of the Legal Service, European Commission. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the European Commission. 2 See, eg Opinion 1/75 OECD Understanding on a Local Cost Standard Arrangement [EU:C:1975:145] para 48. 3 See, eg Opinion 1/92 Draft Agreement on the European Economic Area – II [EU:C:1992:189]; Opinion 2/13 Accession of the EU to the ECHR [EU:C:2014:2454]. 4 Opinion 2/94 Accession by the Community to the ECHR [EU:C:1996:140] para 6.

Overview 377 Rulings under the Euratom Treaty. The Euratom Treaty has its own comparable provision (Article 103)5 according to which the Court may give ‘rulings’6 on draft agreements, but this is separate from the opinion proceedings under Article 218(11) TFEU. Articles 104 and 105 of the Euratom Treaty also enable the Court of Justice to give rulings, upon request from the Commission, on existing agreements in specific situations when there is a risk that such agreements would be invoked to evade the obligations imposed by the Euratom Treaty.

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Relationship with other legal remedies. Since the opinion proceedings seek the ex ante review of the lawfulness of envisaged international agreements to be concluded by the EU, they are complemented by actions for annulment7 (cf para 3.289) or preliminary rulings on validity (cf Chapter 3.8) that may concern the lawfulness of decisions concluding such agreements; these actions and rulings may, by extension, relate to the compatibility of those agreements with EU law.

3.724

Specificities. The opinion proceedings present a number of peculiarities. First and foremost, this is the only form of proceedings that allows judicial control on acts before they are formally adopted. Secondly, the right of action is reserved to four types of institutional actors (Member States, the Parliament, the Council and the Commission). Thirdly, only the Court of Justice is competent to issue opinions. Fourthly, the course of the procedure is specific because it has an institutional character (allowing a wide possibility for all parties to participate), and it is a consultative and judicial (as its outcome is binding) procedure at the same time.

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Changes brought by the Lisbon Treaty. Apart from changing the formulation contained in the former Article 300(6) TEC, the Treaty of Lisbon also enlarged the possibility to ask for an opinion by abolishing the pillar structure and bringing under the FEU Treaty all the EU policy areas. While, under Article 300(6) TEC, opinions could only be requested in respect of envisaged agreements related to the fields encompassed by the formerly existing first pillar (Economic Community), Article 218(11) TFEU now also covers draft agreements that relate to the formerly existing third pillar (Police and Judicial Cooperation in Criminal Matters). While it is true that the formerly existing second pillar (Common Foreign and Security Policy, CFSP) is now also brought under the FEU Treaty, Article 275 TFEU provides that the Court of Justice ‘shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions’.8 This provision could allow the

3.726

5 ‘Member States shall communicate to the Commission draft agreements or contracts with a third State, an international organisation or a national of a third State to the extent that such agreements or contracts concern matters within the purview of this Treaty. If a draft agreement or contract contains clauses which impede the application of this Treaty, the Commission shall, within one month of receipt of such communication, make its comments known to the State concerned. The State shall not conclude the proposed agreement or contract until it has satisfied the objections of the Commission or complied with a ruling by the Court of Justice of the European Union, adjudicating urgently upon an application from the State, on the compatibility of the proposed clauses with the provisions of this Treaty. An application may be made to the Court of Justice of the European Union at any time after the State has received the comments of the Commission’. 6 A single one has been issued so far on 14 November 1978: Ruling 1/78 Draft Convention of the International Atomic Energy Agency on the Physical Protection of Nuclear Materials, Facilities and Transports [EU:C:1978:202]. 7 See, eg Case C-327/91 France v Commission (agreement on competition law with the USA) [EU:C:1994:305] paras 13–17; Case C-22/70 Commission v Council (European Agreement on Road Transport) [EU:C:1971:32]. 8 The only exception being described in Art 275(2) TFEU: ‘However, the Court shall have jurisdiction to monitor compliance with Article 40 of the Treaty on European Union and to rule on proceedings, brought in accordance with the conditions laid down in the fourth para of Article 263 of this Treaty, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the

378 Opinions on International Agreements Court of Justice to dismiss as inadmissible a request for an opinion in a CFSP matter.9 Finally, it must be recalled that separate provisions apply to draft agreements that pertain to the areas regulated by the Euratom Treaty (cf para 3.723). 3.727

Forum. The exclusive competence to issue opinions is with the Court of Justice. To date, only 28 opinions have been rendered,10 of which only a single one was given in 2019 (on CETA, the Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part).11

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Admissibility. The Court often examines the admissibility of a request even if none of the parties raised that issue. However, this procedure being a consultative one, the Court may invite a requesting party to put in order (regularise) its request or clarify its question. Apart from the general admissibility requirements, a request for an opinion must meet the following conditions: i) The applicant must be a Member State, the Parliament, the Council or the Commission (cf Section 3.9.2. Parties); ii) The questions in the request must relate to an envisaged agreement and be permissible under Article 218(11) TFEU (cf Section 3.9.3. Subject Matter of the Opinion Proceedings); iii) The request for an opinion must be brought within the applicable time limits (cf Section 3.9.4. Time Limits and Formal Requirements).

3.729

Substance. As to the substance, the Court of Justice examines the compatibility of the draft international agreement with the Treaties (cf Section 3.9.5. Assessment of Compatibility). The consequence of an adverse opinion is that the envisaged international agreement cannot enter into force unless it is amended or the Treaties are revised (cf Section 3.9.6. Consequences of an Opinion). Treaty on European Union.’ Art 24(1) TEU also seems to exclude the delivery of Opinions in CFSP matters. It provides that ‘[t]he common foreign and security policy is subject to specific rules and procedures. … The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty and to review the legality of certain decisions as provided for by the second para of Article 275 of the Treaty on the Functioning of the European Union.’ 9 No request for an Opinion has been made so far in the CFSP field. 10 Opinion 1/59 Draft amendment of Article 56 ECSC – I [EU:C:1959:30]; Opinion 1/60 Draft amendment of Article 56 ECSC – II [EU:C:1960:8]; Opinion 1/61 Draft amendment of Article 65 ECSC [EU:C:1961:27]; Opinion 1/75 OECD Understanding on a Local Cost Standard Arrangement [EU:C:1975:145]; Opinion 1/76 Draft Agreement on the establishment of a European Laying-up Fund for Inland Waterway Vessels [EU:C:1977:63], Opinion 1/78 International Agreement on Natural Rubber [EU:C:1979:224]; Opinion 1/91 Draft Agreement on the European Economic Area – I [EU:C:1991:490]; Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [EU:C:1993:106]; Opinion 1/92 Draft Agreement on the European Economic Area – II [EU:C:1992:189]; Opinion 2/92 Third Revised Decision of the OECD on national treatment [EU:C:1995:83]; Opinion 1/94 International agreements concerning services and the protection of intellectual property annexed to the WTO agreement [EU:C:1994:384]; Opinion 2/94 Accession by the Community to the ECHR [EU:C:1996:140]; Opinion 3/94 GATT – WTO Framework agreement on bananas [EU:C:1995:436]; Opinion 1/00 Proposed agreement on the establishment of a European Common Aviation Area [EU:C:2002:231]; Opinion 2/00 Cartagena Protocol on Biosafety [EU:C:2001:664]; Opinion 1/03 The new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [EU:C:2001:664]; Opinion 1/08 Agreements modifying the Schedules of Specific Commitments under the GATS [EU:C:2009:739]; Opinion 1/09 Creation of a unified patent litigation system [EU:C:2011:123]; Opinion 1/13 Hague Convention on the civil aspects of international child abduction [EU:C:2014:2303]; Opinion 2/13 Accession of the EU to the ECHR [EU:C:2014:2454]; Opinion 1/15 Draft agreement between Canada and the EU – Transfer of Passenger Name Record data from the European Union to Canada [EU:C:2016:656]; Opinion 2/15 Free Trade Agreement between the EU and Singapore [EU:C:2017:376]; Opinion 3/15 Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled [EU:C:2016:657]; Opinion 1/17 Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part (CETA) [EU:C:2019:341]. Source: InfoCuria – case-law search. 11 Opinion 1/17 Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part (CETA) [EU:C:2019:341].

Subject Matter of the Opinion Proceedings 379

3.9.2. Parties The Member States, the Parliament, the Council and the Commission are entitled to request an opinion. The exclusive right, as defined by the FEU Treaty, to request an opinion belongs to Member States, the Parliament, the Council and the Commission. Most of the requests (more than half) have come from the Commission, which is understandable, since international negotiations are usually conducted by this EU institution. None of these applicants are obliged to initiate an opinion procedure. In theory, joint requests by applicants with standing to request an opinion are possible, but no such joint request has been filed yet. The Court cannot render an opinion without being requested to do so by an applicant vested with such a right.

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Only the Member States, the Parliament, the Council and the Commission are allowed to take part in the opinion procedure. The request for an opinion is served on all the Member States, the Parliament, the Council and the Commission, except for the requesting party. These entities join the proceedings automatically and all subsequent documents are served on them. Only these entities may submit written observations or participate in the hearing. No other parties can take part in the opinion procedure and interventions are not possible.

3.731

3.9.3. Subject Matter of the Opinion Proceedings Envisaged agreement. It is clear from the joint reading of paras 1 and 11 of Article 218 TFEU that only ‘agreements between the Union and third countries or international organisations’ can be the object of an opinion, to the exclusion of agreements, to be concluded by Member States, to which the EU is not a party. Since the notion of an agreement is not defined in the TFEU, the Court of Justice developed its interpretation and defined it as a broad, functional concept. Such an agreement was defined as early as in opinion 1/75 as ‘any undertaking entered into by entities subject to international law which has binding force, whatever its formal designation’. The Court added that ‘the formal designation of the agreement envisaged under international law is not of decisive importance’.12 Therefore, any envisaged agreement, in whatever form, that binds the EU once it is concluded can be the subject of opinion proceedings. An envisaged agreement may equally relate to amending or completing another existing agreement.13 In the case of international agreements that have already entered into force, the envisaged agreement to be examined by the Court is the accession agreement whereby the EU becomes a party to the already existing agreement.14 The request is admissible even if the exact form of the ultimate agreement or its precise terms are not yet clear at the time of asking the opinion.15 In the absence of a draft text, the Court may take into account the Council’s authorisation of the opening of negotiations and the negotiating directives.16 Mixed agreements concluded between the EU and its Member States,

12 Opinion 1/75 OECD Understanding on a Local Cost Standard Arrangement [EU:C:1975:145] pp. 1359–1360. See also Opinion 2/92 Third Revised Decision of the OECD on national treatment [EU:C:1995:83] para 8. 13 Opinion 1/08 Agreements modifying the Schedules of Specific Commitments under the GATS [EU:C:2009:739]. 14 See, eg the two Opinions on the envisaged accession by the European Economic Community and, subsequently, by the EU to the European Convention on Human Rights: Opinion 2/94 Accession by the Community to the ECHR [EU:C:1996:140]; Opinion 2/13 Accession of the EU to the ECHR [EU:C:2014:2454]. 15 Opinion 2/94 Accession by the Community to the ECHR [EU:C:1996:140] paras 8–18. 16 See, eg Opinion 1/03 The new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [EU:C:2001:664] paras 26–28.

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380 Opinions on International Agreements on the one hand, and third parties, on the other hand, are equally covered by the scope of these proceedings,17 as are agreements where the EU’s external competence may be exercised through the medium of the Member States acting jointly in its interest.18 3.733

Types of questions that can be put to the Court of Justice. While Article 218(11) TFEU is silent on the permissible types of questions, these are defined in Article 196(2) of the Rules of Procedure of the Court of Justice (CJ RoP): A request for an [o]pinion may relate both to whether the envisaged agreement is compatible with the provisions of the Treaties and to whether the European Union or any institution of the European Union has the power to enter into that agreement.

Other types of requests, such as claims for annulment or damages, are not allowed under this procedure. A request and the corresponding opinion may relate to an entire draft agreement or only a part of it. 3.734

One or several envisaged agreements reviewed at a time. The request may relate to a single or even multiple agreements,19 provided that they are connected.

3.735

Recurrent requests. The Court has accepted as admissible several requests relating to envisaged agreements with the same main subject matter.20 Recurrent requests may occur when the first opinion is negative and the EU institutions prepare another draft of the envisaged international agreement, taking into account the concerns raised in the negative opinion. They may also occur where the relevant legal provisions in the Treaties change, thus there is a possibility that, under the new Treaty rules, the EU’s accession to the same international agreement would no longer be contrary to EU law.21 As a rule, such successive opinions relate to different issues and provisions discussed at different stages of negotiation.

3.9.4. Time Limits and Formal Requirements 3.736

Time limits to request an opinion. The starting point for the possibility to request an opinion is when the ambit of the envisaged agreement is known.22 This can be a very early stage, especially where the EU intends to join an already existing international agreement. The request can thus be lodged even before negotiations are commenced or any formal step is taken towards the conclusion.23 As to the end point, the request must be submitted before such an agreement is concluded, since the opinion proceedings relate to an ‘envisaged’ agreement. 17 Opinion 1/09 Creation of a unified patent litigation system [EU:C:2011:123]; Opinion 1/17 Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part (CETA) [EU:C:2019:341]. 18 Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [EU:C:1993:106] para 5. 19 See, eg Opinion 1/08 Agreements modifying the Schedules of Specific Commitments under the GATS [EU:C:2009:739]. 20 Opinion 1/91 Draft Agreement on the European Economic Area – I [EU:C:1991:490] followed by Opinion 1/92 Draft Agreement on the European Economic Area – II [EU:C:1992:189]; Opinion 2/94 Accession by the Community to the ECHR [EU:C:1996:140] followed by Opinion 2/13 Accession of the EU to the ECHR [EU:C:2014:2454]. 21 See Opinion 2/13 Accession of the EU to the ECHR [EU:C:2014:2454] para 153. 22 Opinion 2/94 Accession by the Community to the ECHR [EU:C:1996:140] paras 10–15. See para 15: ‘Furthermore, insofar as the request for an Opinion concerns the question of Community competence, its import is sufficiently clear and a formal Council decision to open negotiations was not indispensable in order further to define its purpose.’ 23 The procedure to conclude international agreements is described in general in Art 218 TFEU and the adapted procedure applying to commercial policy matters is specified in Art 207(3) TFEU. The first formal step is, as regards the procedure under Art 218 TFEU, the authorisation by the Council to open the negotiations, while for commercial policy

Assessment of Compatibility 381 No suspensory effect. The initiation of the opinion proceedings has no suspensory effect. If the agreement is concluded while the Court procedure to render an opinion is still ongoing, the request will be rejected as devoid of purpose. In one such case, the Court recalled that the applicant Member State or EU institution which has requested the opinion ‘may bring an action for annulment of the Council’s decision to conclude the agreement and may in that context apply for interim relief ’24 as an ex post remedy related to the compatibility of the agreement with the Treaties (cf para 3.724).

3.737

Formal requirements. Article 21 of the Statute requires, in respect of all cases brought before the Court of Justice, the minimum description of ‘the subject matter of the dispute, the form of order sought and a brief statement of the pleas in law on which the application is based’. The CJ RoP do not lay down any specific formal requirements in respect of a request for an opinion. Since opinions are a non-contentious form of proceedings, the requesting party merely asks the Court questions on the compatibility of the draft international agreement with the Treaties; it does not make a specific request to declare the draft compatible or incompatible. It is customary that, in its request, the applicant party describes the envisaged agreement, annexes the draft international agreement if such a draft has already been prepared, presents the documents related to the result of the negotiations achieved before the lodging of the request and puts forward its views on the issue of the envisaged agreement’s compatibility with the Treaties. If a request is unclear, the Court may ask the requesting party to explain it better. However, since the right to request an opinion is unconditional, it is not necessary to describe any legal interest in the proceedings.

3.738

3.9.5. Assessment of Compatibility Scope of review. The Court of Justice interpreted its power to review draft international agreements under Article 300(6) TEC (now Article 218(11) TFEU) as concerning all questions capable of submission for judicial consideration, insofar as such questions give rise to doubt as to either the substantive or the formal validity of the agreement with regard to the Treaties. A judgment on the compatibility of an agreement with the Treaties may in that regard depend not only on provisions of substantive law, but also on those concerning the powers, procedure or organisation of the institutions of the Union.25 The scope of review is defined in a similar way in Article 196(2) of the CJ RoP, which provides that a request for an opinion ‘may relate both to whether the envisaged agreement is compatible with the provisions of the Treaties and to whether the European Union or any institution of the European Union has the power to enter into that agreement’. In particular, the Court of Justice may assess questions related to the division of powers between the EU and its Member States to conclude a given international agreement with third countries.26 agreements under Art 207(3) TFEU, the first formal step is the recommendation by the Commission to the Council to authorise the Commission to open the negotiations. However, the ambit and purpose of an envisaged agreement may be known even before such a formal step, especially where the ‘envisaged agreement’ has as its object the accession by the EU to an already existing agreement. 24 Opinion 3/94 GATT – WTO Framework agreement on bananas [EU:C:1995:436] paras 22–23. See an example of such an ex post review in Joined Cases C-317/04 and C-318/04 Parliament v Council and Commission (agreement on passenger name records) [EU:C:2006:346] (actions for annulment directed against a Council decision on the conclusion of an international agreement and against a Commission decision implementing that international agreement). 25 Opinion 1/08 Agreements modifying the Schedules of Specific Commitments under the GATS [EU:C:2009:739] para 108 and the case law cited. 26 See, eg Opinion 1/03 The new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [EU:C:2001:664] para 112; Opinion 1/08 Agreements modifying the Schedules of Specific Commitments under the GATS [EU:C:2009:739] para 109.

3.739

382 Opinions on International Agreements This may also include the assessment of questions related to the choice of the legal basis for the conclusion of the envisaged agreement.27 3.740

Review limited to the compatibility of the agreement with the Treaties. The review carried out by the Court of Justice is limited to the draft agreement’s compatibility with the Treaties. It does not extend to the examination of requirements imposed on the EU by international law.28 In this regard, the Court of Justice held in opinion 2/91 that the appraisal in the opinion proceedings did not concern the Community’s capacity, on the international plane, to enter into a convention drawn up under the auspices of the International Labour Organisation (ILO). Nor was it for the Court to assess any obstacles which the Community might have encountered in the exercise of its international competence because of constitutional rules of the ILO.29 Futhermore, the opinion proceedings are not intended to solve difficulties associated with implementation of an envisaged agreement which falls within shared EU and Member State competence.30

3.9.6. Consequences of the Opinion 3.741

Effects of a positive opinion. The purpose of this consultative procedure is for the Court to declare whether the EU has competence to conclude an agreement or whether its content is in conformity with the Treaties. If the Court finds the draft agreement to be in conformity with the Treaties, the EU may conclude the agreement, although is not obliged to do so, of course. A favourable opinion before concluding an agreement reduces the chances of a successful action for annulment against the decision to conclude the agreement afterwards, but it is not a formal obstacle to an a posteriori challenge. The Court may subject the agreement’s conformity with the Treaties to certain conditions that must be respected.31

3.742

Effects of an adverse opinion. If the Court finds that the envisaged agreement is not compatible with the Treaties, the requesting party and all other EU institutions and Member States must comply with the opinion. In the case of such an adverse opinion, either the draft international agreement or the Treaties (TFEU or TEU) need to be amended, failing which the agreement cannot enter into force. If there are material changes in the text of the draft agreement or in the relevant provisions of the Treaties, it is possible to consult the Court again, by lodging another request for an opinion (cf para 3.735). However, to maintain the institutional balance, the Court refrains from giving instructions on how to make the content of a draft agreement conform to Union law.32

27 Opinion 2/00 Cartagena Protocol on Biosafety [EU:C:2001:664] para 5; Opinion 1/08 Agreements modifying the Schedules of Specific Commitments under the GATS [EU:C:2009:739] para 110. 28 K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, Oxford, 2014) 556. 29 Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [EU:C:1993:106] para 4. 30 Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [EU:C:1993:106] para 17. 31 Opinion 1/92 Draft Agreement on the European Economic Area – II [EU:C:1992:189] operative part point 1: ‘The following are compatible with the Treaty establishing the European Economic Community: (1) The provisions of the agreement which deal with the settlement of disputes, as long as the principle that decisions taken by the Joint Committee are not to affect the case law of the Court of Justice is laid down in a form binding on the Contracting Parties.’ 32 Opinion 2/94 Accession by the Community to the ECHR [EU:C:1996:140] paras 20–22.

Consequences of the Opinion 383 The useful nature of the opinion proceedings. Although the number of opinions rendered is limited, their significance is all the more evident. The purpose of avoiding international engagements of the EU being contrary to the legal order of the Union has been well served. For example, the final form of the EEA Agreement benefited from opinions 1/91 and 1/92, which preceded it.33 In general, costly consequences have been prevented by not engaging the responsibility under international law of the Union or its Member States. The a priori opinions clarified numerous institutional and competence questions that otherwise could have given rise to a posteriori litigation in actions for annulment or damages. Exploiting the full potential of the procedure presupposes that the entitled parties make efficient use of it and abide by its results, under their duty of loyal cooperation.

33 Opinion 1/91 Draft Agreement on the European Economic Area – I [EU:C:1991:490]; Opinion 1/92 Draft Agreement on the European Economic Area – II [EU:C:1992:189].

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384

part 4 Procedure before the EU Courts

386

4.1. Common Rules on Procedure [written by Viktor Luszcz1]

4.1.1. Overview Structure of this chapter and relationship with other chapters. This chapter presents the sources of law governing the procedure before the EU Courts (Section 4.1.2) and examines the types of proceedings before the EU Courts (such as direct actions, preliminary rulings, appeals) (Section 4.1.3). Furthermore, it explains the procedural rules which are applied horizontally in all types of proceedings and in all cases before the EU Courts, that is, those on the language of the case (Section 4.1.4), representation of the parties (Section 4.1.5), lodging and service of documents (Section 4.1.6) and calculation of time limits (Section 4.1.7). Some issues, such as the measures of organisation of procedure and of inquiry, as well as the preparation of the preliminary report, albeit also present in all types of proceedings, are examined in detail in Chapter 4.2. Procedure in Direct Actions, the purpose being that readers of this book be provided with a streamlined presentation of all steps of the procedure in a chronological order in the most common type of cases before the EU Courts, which is direct actions. Specific procedural issues, which are present only in a smaller part of the proceedings before the EU Courts, such as interventions, interim measures and joinder, are examined in Part 5 of the book.

4.01

4.1.2. The Rules Governing Procedure Reminder – terminology and current structure of the Court of Justice of the European Union. The Court of Justice of the European Union is a single EU institution. As of 1 September 2016, it consists of the Court of Justice, the upper tier EU Court, and the General Court, the lower tier EU Court. Until September 2016, the Court of Justice of the European Union also included the Civil Service Tribunal, which was, however, absorbed by the General Court on 1 September 2016 as part of the reform of the General Court (cf paras 1.16–1.17).

4.02

The rules governing the procedure before the EU Courts. The procedure before the EU Courts is laid down in three main documents. The Statute,2 applicable to both EU Courts, contains the basic rules. The detailed provisions on the procedure before the EU Courts are set out, respectively, in the Rules of Procedure of the Court of Justice (CJ RoP)3 and of the General Court (GC RoP).4 These main documents are explained, detailed and complemented by the Practice Directions of

4.03

1 Partner, Danubia Legal – Luszcz Law Firm. Attorney at law specialising in European and Hungarian competition and intellectual property law, member of the Budapest Bar. Previously worked 11 years as a référendaire at the General Court of the EU. 2 Protocol (No 3) annexed to the TEU, TFEU and Euratom Treaties, last amended by Regulation (EU, Euratom) 2019/629 of the European Parliament and of the Council of 17 April 2019 amending the Statute (OJ 2019 L 111, p. 1). 3 Rules of Procedure of the Court of Justice of 25 September 2012 (OJ 2012 L 265, p. 1), last amended on 26 November 2019 (OJ 2019 L 316, p. 103). 4 Rules of Procedure of the General Court of 4 March 2015 (OJ 2015 L 105, p. 1), last amended on 11 July 2018 (OJ 2018 L 240, p. 68).

388 Common Rules on Procedure the Court of Justice (CJ PD)5 and the Practice Rules of the General Court (GC PR).6 The recently recast CJ e-Curia decision7 and GC e-Curia decision8 provide the possibility of lodging and receiving documents via a secured electronic platform. These documents can be found on the curia.eu website, along with further information facilitating the work of the parties’ representatives.

4.1.2.1. The Statute 4.04

The Statute. The Statute of the Court of Justice of the European Union is Protocol No 3 annexed to the TEU, TFEU and Euratom Treaties, and, as such, it has the status of primary EU law. Under Article 281 TFEU, it may be amended in accordance with the ordinary legislative procedure. The Court of Justice of the European Union has an important role in the process, as an amendment may only be adopted at the request of the Court or, if such an amendment is proposed by the Commission, after consultation of the Court. Under ‘Title III – Procedure before the Court of Justice’, the Statute outlines the basic rules applicable to the procedure before the EU Courts.9 The provisions under Title III have not been amended since the entry into force of the Lisbon Treaty, except for Article 39(2)–(3), which were adapted in order to reflect the creation of the post of the Vice-President of the Court of Justice.10 The latest amendment of other provisions of the Statute took effect on 1 May 2019. It concerns the division of competences between the Court of Justice and the General Court (cf para 1.21), and also introduces a filtering mechanism as regards appeals brought against decisions of the General Court concerning decisions adopted by the Boards of Appeal of certain EU agencies (cf para 3.594).11

4.1.2.2. The Rules of Procedure of the Court of Justice 4.05

Adoption of the recast Rules of Procedure of the Court of Justice in 2012. On 25 September 2012, the Court of Justice, with the approval of the Council,12 adopted new Rules of Procedure,13 replacing the Rules of Procedure of 19 June 1991. The recast CJ RoP entered into force on 1 November 2012 and introduced several important changes.14 First, rules governing the preliminary ruling procedure were given a prominent place in the structure of the CJ RoP, as now they directly follow the general provisions applicable to all cases. This change reflects the fact that 5 Practice directions to parties concerning cases brought before the Court [of Justice] of 10 December 2019 (OJ 2020 L 42, p. 1) These replaced the Practice directions to parties concerning cases brought before the Court [of Justice] 25 November 2013 (OJ 2014 L 31, p. 1). 6 Practice Rules for the implementation of the Rules of Procedure of the General Court of 20 May 2015 (OJ 2015 L 152, p. 1), last amended on 17 October 2018 (OJ 2018 L 294, p. 23). 7 Decision of the Court of Justice of 16 October 2018 on the lodging and service of procedural documents by means of e-Curia (OJ 2018 L 293, p. 36). 8 Decision of the General Court of 11 July 2018 on the lodging and service of procedural documents by means of e-Curia (OJ 2018 L 240, p. 72). 9 Statute, Arts 19–46. 10 The amendment is foreseen in Regulation (EU, Euratom) 741/2012 of the European Parliament and of the Council of 11 August 2012 amending the Protocol on the Statute of the Court of Justice of the European Union and Annex I thereto (OJ 2012 L 228, p. 1). 11 Regulation (EU, Euratom) 2019/629 of the European Parliament and of the Council of 17 April 2019 amending the Statute (OJ 2019 L 111, p. 1), which inserted the new Art 58a into the Statute. 12 Under Art 253 TFEU, ‘[the] Court of Justice shall establish its Rules of Procedure. Those Rules shall require the approval of the Council.’ 13 Rules of Procedure of the Court of Justice of 25 September 2012 (OJ 2012 L 265, p. 1), last amended on 26 November 2019 (OJ 2019 L 316, p. 103). 14 For a thorough analysis of the changes introduced by the recast CJ RoP, see M-A Gaudissart, ‘La refonte du règlement de procédure de la Cour de Justice’ (2012) Cahiers de droit européen 603. A shorter overview is provided in A Rigaux, ‘Règlement de procédure de la Cour de Justice’ (2012) Europe comm 417.

The Rules Governing Procedure 389 preliminary rulings represent the majority of the cases heard by the Court of Justice, and was long overdue, given that most direct actions were transferred to the General Court in the years following its establishment. Secondly, the recast rules aim at enabling the Court of Justice to cope with its increasing workload and to reduce the length of the procedure. Changes in this regard include the extension of possibilities to decide the substance of the case without a hearing and by order, in particular by adopting orders declaring an appeal manifestly well founded15 (cf para 4.444) or by responding to a preliminary reference by reasoned order16 (cf para 4.476). Thirdly, the recast CJ RoP also offer greater transparency and easier use by better structuring and clarifying provisions and by codifying pre-existing case law. Modifications introduced by the CJ RoP of 2012 are indicated in the relevant sections of this book. Structure of the Rules of Procedure of the Court of Justice. As regards the structure of the CJ RoP, Title I sets out the provisions relating to the organisation of the Court of Justice (cf paras 1.26–1.47), while Title II contains the common procedural provisions applicable to all types of cases. These two titles containing general provisions are followed by six more titles, which each concern particular procedures. Rules on preliminary rulings are grouped under Title III (cf Chapter 4.5. Procedure in Preliminary Rulings), followed by Title IV on direct actions brought before the Court of Justice (cf Chapter 4.2. Procedure in Direct Actions). Title V regulates the appeals brought against the decisions of the General Court (cf Chapter 4.4. Procedure in Appeals). Title VI regulates the review procedure, that is, an extraordinary judicial remedy that can be initiated by the Court of Justice against decisions delivered by the General Court on appeal or by preliminary rulings given by the latter. It should be noted that with the disappearance of the Civil Service Tribunal, the General Court has lost its power to hear cases on appeal, and it has never been granted powers to deliver preliminary rulings.17 Therefore, Title VI is currently not applied in practice. Finally, Title VII sets out the procedural provisions regarding opinions of the Court of Justice on draft international agreements delivered under Article 218(11) TFEU (cf Chapter 4.6), while Title VIII contains rules on particular forms of procedure (cf para 4.21).

4.06

Supplementary Rules of the Court of Justice. The Supplementary Rules to the Rules of Procedure of the Court of Justice18 regulate a few specific issues, ie letters rogatory, legal aid and reports of perjury.

4.07

4.1.2.3. The Rules of Procedure of the General Court of 2015 The adoption of the recast Rules of Procedure in 2015. The preparatory works on the new GC RoP began immediately after the adoption of the CJ RoP in 2012. This was the earliest possible start, since, preferably, the rules governing the procedure before the General Court had to be brought in line as much as possible with the new CJ RoP. Drafting the new rules took place simultaneously with the negotiations in the Council regarding the enlargement of the General Court.19 The draft rules were mainly drawn up by the General Court, and observations from the Court of Justice and from the Council were accommodated, as the establishment of those rules requires both the assent of the Court of Justice and the approval of the Council.20 The new GC 15 CJ RoP, Art 182. 16 CJ RoP, Art 99. 17 Such a power can only be granted to the General Court in the Statute. 18 Supplementary rules of the Court of Justice of 1 February 2014 (OJ 2014 L 32, p. 37). 19 The Court of Justice of the European Union submitted its proposal to amend the Statute to the Parliament and the Council on 28 March 2011. The text of the proposal can be found on the curia.eu website. 20 Under Art 254(5) TFEU, ‘The General Court shall establish its Rules of Procedure in agreement with the Court of Justice. Those Rules shall require the approval of the Council’.

4.08

390 Common Rules on Procedure RoP were adopted on 3 March 201521 and entered into force on 1 July 2015, replacing the Rules of Procedure of 2 May 1991. 4.09

Major changes introduced by the 2015 Rules of Procedure of the General Court. The most important objective of the adoption of the new GC RoP was to equip the General Court with the provisions enabling it to cope with its increasing workload and to finish proceedings within a reasonable time limit, as required by Article 47 of the Charter of Fundamental Rights. To that end, a number of changes were introduced.22 The General Court now possesses the required means to conduct a more efficient case management, inter alia through the new provisions relating to the constitution of specialised Chambers23 and the powers granted to its President to reattribute cases to another Judge-Rapporteur who is in the position to start examining the case sooner24 (cf para 1.59). Further provisions aiming at the reduction of the length of the procedure include the possibility to give priority to some cases over others,25 to propose to a party to request expedited procedure26 and to decide the substance of the case without a hearing.27 Another important amendment is the deletion of the so-called ‘second class’ interventions: applications to intervene which are lodged after the expiry of the time limit of six weeks are no longer allowed. Apart from the purpose of speeding up proceedings, another objective was to create a special regime to handle closed evidence, which is of crucial importance in the field of restrictive measures adopted against third country nationals and groups in the framework of the common foreign and security policy, where Member States and, by extension, the Council often object to the communication of evidence to the applicant on account of security fears. The new Rules of Procedure create an exception from the adversarial principle and allow the General Court to base its judgment on information which was not communicated to the applicant.28

4.10

The amendments following the absorption of the Civil Service Tribunal. The amendment of the GC RoP of 13 July 201629 reflects the incorporation of the Civil Service Tribunal into the General Court and the transfer of its power to decide staff cases brought under Article 270 TFEU to the latter. References to the ‘Civil Service Tribunal’ have been largely deleted from the text. In spite of the Tribunal not delivering any more judgments or orders, the provisions on appeals against its decisions (Title V of the GC RoP) continued to apply as long as there were pending appeal cases before the General Court, and are still present in the text. The only major change brought by the 2016 amendment is the inclusion of the provisions on amicable settlement in staff cases into the GC RoP.30 The next amendment took place on 11 July 2018, which made e-Curia the sole method of lodging and serving procedural documents in proceedings before the General Court31 (cf para 4.58). Another amendment took place on 31 July 2018, which only introduced minor changes as regards the possible role of the Vice-President.32 21 Rules of Procedure of the General Court of 4 March 2015 (OJ 2015 L 105, p. 1), last amended on 11 July 2018 (OJ 2018 L 240, p. 68). 22 For a detailed presentation of the changes introduced by the new GC RoP, see K Andová and E von Bardeleben, ‘La refonte du règlement de procedure du Tribunal de l’Union européenne: pour une efficacité juridictionnelle renforcée’ (2015/7) Europe étude 6. 23 GC RoP, Art 25(1). 24 GC RoP, Art 27(2)–(3). 25 GC RoP, Art 67(2). 26 GC RoP, Art 151(2). 27 GC RoP, Art 106. 28 GC RoP, Art 105, in particular Art 105(8). 29 Amendments of the GC RoP of 13 July 2016 (OJ 2016 L 217, p. 73). 30 GC RoP, Art 125a–125d. 31 Amendments of the GC RoP of 11 July 2018 (OJ 2018 L 240, p. 68). 32 Amendments of the GC RoP of 31 July 2018 (OJ 2018 L 240, p. 67), affecting GC RoP, Arts 3(3) and 28(2).

The Rules Governing Procedure 391 Structure of the new GC RoP. The structure of the GC RoP follows that of the CJ RoP in many respects. However, it had to be adapted to the fact that the General Court only handles direct actions and intellectual property cases,33 as it has no competence to deliver preliminary rulings. Title I of the Rules contains the provisions on the organisation of the General Court (cf paras 1.49–1.68). It is followed by Title II, governing the linguistic regime (cf Section 4.1.4. Language of the Case). Title III ‘Direct Actions’ is the most voluminous part (cf Chapter 4.2. Procedure in Direct Actions), while Title IV, on the proceedings relating to intellectual property rights, contains the specific rules applicable to the actions brought against decisions of the European Union Intellectual Property Office (EUIPO) and the Community Plant Variety Office (CPVO; cf Chapter 4.3. Procedure in Intellectual Property Cases). The current version of the Rules still contains Title V ‘Appeals against Decisions of the Civil Service Tribunal’ (cf para 4.10). Finally, Title VI lays down the rules on the procedures after the case is referred back to the General Court, following a successful appeal before the Court of Justice (cf Section 4.4.6. Procedure in cases referred back to the General Court). Specific rules applicable to staff cases (Article 270 TFEU) are not grouped under a separate title but are scattered in various sections of the GC RoP. The provisions corresponding to the Supplementary Rules of the Court of Justice are included in the GC RoP.

4.11

4.1.2.4. The Practice Directions and the Practice Rules The Practice Directions and the Practice Rules contain a set of explanations, reminders and practical information. In order to facilitate the work of the representatives of the parties and to help the EU Courts handle cases efficiently, the provisions of the Statute and the respective Rules of Procedure are explained, detailed and complemented by the new Practice Directions of the Court of Justice34 (CJ PD) adopted on 10 December 2019 and the Practice Rules of the General Court (GC PR),35 the latter having been thoroughly revised by the amendments of 17 October 2018.36 These documents contain crucial instructions on the drafting, formatting and lodging of procedural documents to be followed by the parties. They also draw the attention of the representatives to a number of formal requirements whose inobservance may render the application inadmissible or delay the service of any procedural document.37 Repeated failure to put documents in order may result in an obligation to pay the Registry charge.38 Moreover, the CJ PD and the GC PR also provide information and instructions regarding the preparation and the conduct of the hearings, by highlighting particular issues which follow inter alia from the shortness of the oral pleadings and the need for simultaneous interpretation.

33 cf Chapter 3.5. Intellectual Property Cases. 34 Practice Directions to parties concerning cases brought before the Court [of Justice] of 10 December 2019 (OJ 2020 L 031, p. 1). 35 Practice rules for the implementation of the Rules of Procedure of the General Court of 20 May 2015 (OJ 2015 L 152, p. 1), last amended on 17 October 2018 (OJ 2018 L 294, p. 23). 36 Amendments to the GC PR adopted on 17 October 2018 (OJ 2018 L 294, p. 23). 37 Formal requirements non-compliance with which may cause the application to be dismissed as inadmissible are listed in Annex 1 of the GC PR; those whose inobservance delays service are listed in Annex 2. 38 Under GC PR, para 50, ‘Where a party or an applicant for leave to intervene has repeatedly failed to comply with the requirements of the Rules of Procedure or of these Practice Rules, the Registrar shall impose a Registry charge, in accordance with Article 139(c) of the Rules of Procedure, which may not exceed EUR 7 000’.

4.12

392 Common Rules on Procedure

4.1.2.5. The e-Curia Decisions 4.13

e-Curia is an IT platform for the lodging and service of procedural documents. The CJ RoP and the GC RoP foresee the possibility of lodging procedural documents by the parties and the servicing of them by the EU Courts via electronic means.39 To that effect, two decisions on the e-Curia information technology application were adopted in 2011 with very similar provisions, superseded by two decisions in 2018: the CJ e-Curia decision40 and the GC e-Curia decision.41 Pursuant to these decisions, in 2018, the possibility to use the e-Curia platform was extended to national courts making preliminary references to the Court of Justice42 and the use of e-Curia became mandatory in proceedings before the General Court.43

4.1.3. Types of Proceedings 4.14

Article 19(3) TEU. Article 19(3) TEU outlines the competences of the Court of Justice of the European Union and groups proceedings in the following categories: The Court of Justice of the European Union shall, in accordance with the Treaties: (a) rule on actions brought by a Member State, an institution or a natural or legal person; (b) give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions; (c) rule in other cases provided for in the Treaties.

4.15

Direct actions. The first category foreseen in Article 19(3) TEU – actions brought by a Member State, an EU institution or a natural or legal person – includes direct actions, which consist of the following types of cases: –– –– –– –– ––

actions for failing to fulfil Treaty obligations brought under Article 258 TFEU (cf Chapter 2.1); actions for annulment brought under Article 263 TFEU (cf Chapter 3.1); actions for failure to act brought under Article 265 TFEU (cf Chapter 3.2); actions for damages brought under Article 268 TFEU (cf Chapter 3.3); disputes between EU institutions or bodies and their civil servants (staff cases) foreseen in Article 270 TFEU (cf Chapter 3.4); –– disputes where the jurisdiction of the EU Courts is provided for in an arbitration clause contained in a contract concluded by or on behalf of the EU under Article 272 TFEU.44 In these procedures: (i) the EU Courts have to establish the facts. (ii) The adversarial principle applies, that is, a party always has to be given an opportunity to take a position on the statements

39 CJ RoP, Arts 48(4) and 57(8); GC RoP, Art 56a. 40 Decision of the Court of Justice of 16 October 2018 on the lodging and service of procedural documents by means of e-Curia (OJ 2018 L 293, p. 36). 41 Decision of the General Court of 11 July 2018 on the lodging and service of procedural documents by means of e-Curia (OJ 2018 L 240, p. 72). 42 Recital 3 of Decision of the Court of Justice of 16 October 2018 on the lodging and service of procedural documents by means of e-Curia (OJ 2018 L 293, p. 36). 43 Recital 3 of Decision of the General Court of 11 July 2018 on the lodging and service of procedural documents by means of e-Curia (OJ 2018 L 240, p. 72). See also GC RoP, Art 56a. 44 GC RoP, Art 1(2)(i). Arbitration clause cases are not covered in this book.

Types of Proceedings 393 made by the other party or the evidence produced by the latter, and the EU Courts may only base their decision on such information.45 (iii) Interventions are possible in direct actions. (iv) The actions are direct in the sense that they are brought by an applicant against a defendant. The application and the defence contain heads of claim (cf Subsection 4.2.2.3. Forms of Order Sought (Heads of Claim)) and the EU Courts have to decide on them in the operative part of the judgment. If the applicant is successful, the infringement of EU law by a Member State is established (Article 258 TFEU), the contested act of the institution or body is annulled (Article 263 TFEU), the institution’s or body’s failure to act is stated (Article 265 TFEU) or non-contractual liability is established (Articles 268 and 340 TFEU). Alternatively, the application is dismissed. Therefore, in direct actions, there remain no outstanding questions belonging to the case after the delivery of the judgment on the substance: one party wins, while the other loses. (v) Decisions of the EU Courts contain a ruling on costs. (vi) In the references to a judgment or order, both the applicant and the defendant are indicated after the case number.46 The procedural rules applicable to direct actions are examined in detail in Chapter 4.2. Procedure in Direct Actions. Staff (civil service) cases are direct actions. Under Article 270 TFEU, the Court of Justice of the European Union has jurisdiction in any dispute between the Union and its servants. The jurisdiction of the EU Courts is thus foreseen in a distinct Treaty article and these cases are mentioned as a category separate from direct actions in the Court statistics. Nonetheless, the GC RoP make clear that civil service cases brought under Article 270 TFEU are ‘direct actions’.47 In staff cases, the possible subject matter of the case (as defined in the heads of claim) essentially corresponds to that of an action for annulment (Article 263 TFEU) or of an action for damages (Articles 268 and 340 TFEU): a request to annul an act of an EU institution or body or to award damages (the requests to annul an act and to award damages are often cumulated).48 The procedure in staff cases features all the characteristics of direct actions (cf para 4.15). Their specificities follow from the role of the complaint filed with the defendant institution or body in the pre-litigation phase (cf Section 3.4.4. Pre-litigation Phase). and the particular rules governing amicable settlement49 (cf para 5.356). Staff cases brought before the Civil Service Tribunal between 2005 and 2016 had a serial number preceded by ‘F’, indicating ‘fonction publique’ (‘civil service’ in French). Staff cases brought before the General Court include the letter ‘T’ (referring to ‘Tribunal’, the General Court in French), like any other case brought before the General Court. The procedural rules explained in Chapter 4.2. Procedure in Direct Actions are applicable to staff cases.

4.16

Intellectual property cases. Intellectual property cases50 also fall within the scope of A rticle 19(3)(a) TEU, as these are ‘actions brought by a Member State, an institution or a natural or legal person’. In practice, only individual applicants bring such cases. The right to seek judicial review of decisions of the EUIPO and the CPVO is foreseen in secondary legislation adopted on the

4.17

45 See GC RoP, Art 64. The CJ RoP does not contain any parallel provision. The settled case law nonetheless applies: Joined Cases C-42/59 and C-49/59 SNUPAT v High Authority [EU:C:1961:5] 84; Case C-480/99 P Plant and Others v Commission and South Wales Small Mines [EU:C:2002:8] para 24; Case C-199/99 P Corus UK v Commission [EU:C:2003:531] para 19; Case C-89/08 P Commission v Ireland and Others (exemption from excise duty on mineral oils) [EU:C:2009:298] paras 52–55. 46 See, eg Case T-205/05 Evropaïki Dynamiki v Commission [EU:T:2007:59]. 47 GC RoP, Art 1(2)(i). 48 Indeed, the mentions ‘action for annulment’ or ‘action for damages’ are often listed among the keywords indicating the case’s subject matter, albeit the first keyword is always ‘Civil service’. See, eg Joined Cases F-1/14 and F-48/14 Kakol v Commission [EU:F:2015:5]. The letter ‘F’ in the case number refers to the Civil Service Tribunal. 49 GC RoP, Arts 125a–125d. 50 cf Chapter 3.5. Intellectual Property Cases.

394 Common Rules on Procedure basis of Article 262 TFEU, among others in the EU Trade Mark Regulation51 (cf Section 3.5.2. Legal Basis for Bringing Actions). Actions brought against decisions of the EUIPO’s Boards of Appeal are very similar to actions for annulment; however, the parties may request not only the annulment, but also the alteration of the contested decision (cf para 3.519). Intellectual property cases are distinguished from direct actions in the GC RoP, in which Title III ‘Direct Actions’ is followed by a separate Title IV ‘Proceedings Relating to Intellectual Property Rights’. Nonetheless, the procedure in these cases displays all the features of the procedure in direct actions. Their particularities result (apart from the possibility for the General Court to alter the contested decisions of the EUIPO) from the status of the other party who was present in the procedure before the EUIPO52 and the restrictions on adducing arguments or evidence before the General Court which are new as compared to those submitted before the EUIPO or the CPVO (cf Chapter 3.5. Intellectual Property Cases). Other procedural specificities imply that the duration of procedure in intellectual property cases is shorter than direct actions. The procedural rules applicable to intellectual property cases are examined in detail in Chapter 4.3. Procedure in Intellectual Property Cases. 4.18

Appeals. Appeals are not separately mentioned in Article 19(3) TEU, not least because that article refers to the Court of Justice of the European Union as a single institution. However, they are distinguished from direct actions in the terminology of the EU Courts.53 (i) In appeals, the Court of Justice does not establish the facts, as the General Court has already carried out the factual assessment and appeals are limited to points of law only.54 (ii) The adversarial principle also applies in appeal proceedings and (iii) interventions are possible. (iv) The appeal and the response also contain heads of claim. If the appellant is successful, the contested judgment or order of the General Court is set aside and the case is referred back to the General Court, or the Court of Justice gives the final judgment in the matter where the state of the proceedings so permits. (v) The judgment or order closing the appeal procedure also contains a ruling on costs, except where the case is referred back to the General Court. (vi) In the references to a judgment or order, both the appellant and the defendant are indicated after the case number, which always includes the letter ‘P’ after the indication of the year in which the appeal was lodged.55 ‘P’ stands for ‘pourvoi’ (‘appeal’ in French). The procedural rules applicable to appeals are examined in detail in Chapter 4.4. Procedure in Appeals.

4.19

Preliminary rulings. Preliminary rulings form the second category foreseen in Article 19(3) TEU, listed under point (b) (cf para 4.14). They differ from direct actions on several accounts. The essence of these proceedings is that, where a national court perceives that, in a litigation before it, an EU law provision has to be interpreted or its validity has to be decided, it stays the proceedings and makes a preliminary reference to the Court of Justice. The preliminary reference contains the description of the facts of the case and the questions regarding the interpretation or the validity of EU law provisions asked by the national court. In the procedure before the Court of Justice, the parties to the main case before the national court, as well as the Member States, the Commission and the EU institution or body which adopted the act concerned (the ‘interested 51 Art 72 of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1); Art 62 of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1); Art 73 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1). 52 GC RoP, Art 173. 53 See, eg CJ PD, para 10. 54 Save the case where the Court of Justice finds that the General Court distorted the facts. 55 Case C-365/12 P Commission v EnBW [EU:C:2014:2039].

Types of Proceedings 395 persons’ under Article 23 of the Statute), may submit observations on the questions referred to the Court. It follows that: (i) the Court of Justice does not establish the facts as those are contained in the preliminary reference. (ii) The adversarial principle does not apply – the interested persons may submit observations without, as a general rule, knowing the position of other interested persons.56 There is no exchange of written pleadings, unlike in direct actions. (iii) Interventions are not possible in a preliminary ruling procedure. However, an intervener before the national court may become an ‘interested person’ and thus submit observations if he is qualified as a ‘party’ by the national judge. (iv) Instead of an application or defence, the interested parties may submit observations as to how the Court of Justice should answer the questions referred to it by the national court. These observations contain no heads of claim, as opposed to the procedure in direct actions. The preliminary ruling does not decide the main case before the national court, even though its content may often determine its outcome. The procedure before the national court is resumed after the delivery of the ruling, and the national judge will decide, by taking into account the findings of the Court in the ruling, which party is successful on which claim. (v) As a consequence, the national court that hears the case will rule on costs. The preliminary ruling contains no decision in this regard. (vi) In the references to a ruling, after the serial number, only one party to the main case is indicated.57 The procedural rules applicable to preliminary rulings are examined in detail in Chapter 4.5. Procedure in Preliminary Rulings. Opinions on international agreements to be concluded by the EU. The opinion procedure foreseen in Article 218(11) TFEU is the most important one among the ‘other cases provided for in the Treaties’ in which the Court of Justice of the European Union shall rule under Article 19(3)(c) TEU. It should not be confused with the Opinion of the Advocate General, which she or he may issue in any type of procedure before the Court of Justice.58 The opinion procedure involves no private parties, and there is no main case as in preliminary rulings. Its purpose is to ensure that the EU does not conclude international agreements which would be contrary to the Treaties. Therefore, before the conclusion of such an agreement, a Member State, the European Parliament, the Council or the Commission may request an opinion from the Court of Justice as to whether the agreement envisaged is compatible with the Treaties. The course of the opinion procedure is rather similar to that of the preliminary ruling procedure. The Members States and the three EU institutions mentioned above may submit written observations on the compatibility of the draft international agreement with the Treaties and participate at the hearing.59 The adversarial principle does not apply. In the operative part of the opinion, the Court of Justice states if the draft international agreement complies with the Treaties or not. Opinions can be easily recognised from their case number, which does not start with the letter ‘C’. Furthermore, opinion proceedings are numbered separately from the other cases before the Court of Justice, which implies that, given the rarity of opinion proceedings, there is usually a single digit serial number before the indication of the year in which they were instituted.60 The procedural rules applicable to opinions are examined in detail in Chapter 4.6. Procedure in Opinions on International Agreements to be Concluded by the EU.

56 CJ PD, para 10. 57 See, eg Case C-341/01 Plato Plastik Robert Frank [EU:C:2004:254]. 58 In French, different terms are applied: the opinion delivered under TFEU Art 218(11) is ‘avis’, while the Opinion of the Advocate General is ‘conclusions’. 59 CJ RoP, Arts 196(3) and 198. 60 See, eg Opinion 1/09 Creation of a unified patent system [EU:C:2011:123].

4.20

396 Common Rules on Procedure 4.21

Other particular forms of procedure. Title VIII of the CJ RoP lays down the procedural rules in respect of certain specific procedures, ie appeals against the arbitration committee under Article 18(2) of the Euratom Treaty,61 the procedure under Article 103 of the Euratom Treaty,62 the procedures under Articles 104 and 105 of the Euratom Treaty,63 the procedure provided for by Article 111(3) of the European Economic Area (EEA) Agreement64 and the settlement of disputes referred to in Article 35 TEU in the version in force before the entry into force of the Treaty of Lisbon.65 In addition, the CJ RoP also contains procedural rules as regards the proceedings initiated under Article 269 TFEU.66 The latter article provides for the judicial review of acts adopted by the European Council or by the Council pursuant to Article 7 TEU, that is, the determination, by the European Council, of the existence of a serious and persistent breach by a Member State of the fundamental values of the EU referred to in Article 2 TEU and the decision of the Council on the suspension of the rights deriving from the application of the Treaties to the Member State that breaches those fundamental values, including the voting rights. The particular forms of procedure mentioned in this paragraph – which are either extremely rare or have never been applied in practice – are not examined in this book.

4.1.4. Language of the Case 4.1.4.1. Determining the Language of the Case 4.22

The language of the case may be one of the official languages of the EU. The Rules of Procedure of both EU Courts provide that the language of a case shall be Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovene, Spanish or Swedish,67 that is, one of the official languages of the EU listed in Regulation No 1.68 The underlying principle of the rules determining the language of the case is that the institutions or bodies of the EU, as parties to proceedings before the EU Courts, are deemed to have the necessary resources to present or defend their case in whichever official language of the Union. Therefore, the language of the case is determined in such a way that it suits the other main party (who is in most cases a natural or legal person or a Member State) or the national court making a preliminary reference.

4.23

In actions for annulment, failure to act, damages, staff cases, the applicant chooses the language. It follows from both Rules of Procedure that where an action for annulment, an action for failure to act or an action for damages is brought by natural or legal persons, Member States, or EU institutions or bodies, it is always the applicant who chooses the language of the procedure,69 simply by lodging the application in that language. Natural or legal persons usually choose either

61 CJ RoP, Art 201. 62 CJ RoP, Art 202. 63 CJ RoP, Art 203. 64 CJ RoP, Art 204. 65 CJ RoP, Art 205. 66 CJ RoP, Art 206. 67 CJ RoP, Art 36; GC RoP, Art 44. 68 Art 1 of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community [OJ 1958 L 17, p. 385], last amended by Council Regulation (EU) No 517/2013 of 13 May 2013 [OJ 2013 L 158, p. 1]. 69 CJ RoP, Art 37(1); GC RoP, Art 45(1).

Language of the Case 397 the language of the Member State where they have their residence or seat or (often) English. As a rule, Member States choose their own official language. Institutions choose English or French, depending on the linguistic profile of the team in their respective legal services that is in charge of the case. In staff cases, French is often opted for, given that most lawyers specialised in EU civil service litigation are French-speaking. In infringement cases, the official language of the defendant Member State is the language of the case. Under the CJ RoP, ‘where the defendant is a Member State, the language of the case shall be the official language of that State; where that State has more than one official language, the applicant may choose between them’.70 Therefore, the Commission has to bring an action for failure to fulfil Treaty obligations against a Member State in the official language of the latter, or in one of them, should there be several. Special rules apply to Member States that bring the case under Article 259 TFEU.

4.24

In litigation based on an arbitration clause, the party opposing the institution or body determines the language. Where jurisdiction is conferred on the General Court by an arbitration clause, if a case is brought against an institution or body by a Member State or a natural or legal person, the applicant chooses the language of the case under Article 45(1) of the GC RoP. If an institution or body brings such a case, and the defendant is a Member State or a natural or legal person having the nationality of a Member State, the language of the case is the official language of that State under Article 45(1)a of the GC RoP.

4.25

In appeals and follow-up cases, the language of the case is that of the first procedure. In appeals against decisions of the General Court, the language of the case is that of the decision against which the appeal is brought. The same rule applies to the review procedure, mutatis mutandis.71 In follow-up cases such as disputes concerning the costs to be recovered, applications to set aside judgments by default, third-party proceedings and applications for interpretation or revision of a judgment or for the EU Courts to remedy a failure to adjudicate, the language of the case is the language of the decision to which those applications or disputes relate.72

4.26

In preliminary rulings, the language of the reference is the language of the case. In preliminary ruling proceedings, the language of the case is the language of the referring court or tribunal.73

4.27

In intellectual property cases, the language of the case is that of the application or that of the contested EUIPO decision. The GC RoP of 2015 simplified the specific rules on the determination of the language of the case in actions brought against decisions of the EUIPO. As is the case in direct actions, the applicant chooses the language of the procedure where he was the only party to the proceedings before the Board of Appeal of the EUIPO.74 However, if there was another party to those proceedings, the language of the application only becomes the language of the case if that other party does not object to this within the time limit laid down by the Registrar.75 If there is an objection, the language of the case is that of the contested decision,76

4.28

70 CJ RoP, Art 37(1)(a). 71 CJ RoP, Art 37(2)(a)–(b). 72 CJ RoP, Art 37(2)(c); GC RoP, Art(3)(b). 73 CJ RoP, Art 37(3). 74 GC RoP, Art 45(4)(a). In most cases, that means that the applicant challenges a decision based on an absolute ground of refusal to register a trade mark. 75 In intellectual property cases, the application is always served on the other party to the opposition proceedings before the EUIPO. 76 GC RoP, Art 45(4)(b)–(c).

398 Common Rules on Procedure which may suit the intervener better (cf para 4.375). These provisions reflect the general approach of granting extended procedural rights to interveners in intellectual property cases, given that the action is brought before the General Court in continuation to the inter partes proceedings before the EUIPO.

4.1.4.2. Use of the Language of the Case in the Proceedings 4.29

The Rules of Procedure. Article 38 of the CJ RoP contains the following provisions on the use of the language of procedure: 1. The language of the case shall in particular be used in the written and oral pleadings of the parties, including the items and documents produced or annexed to them, and also in the minutes and decisions of the Court. 2. Any item or document produced or annexed that is expressed in another language must be accompanied by a translation into the language of the case. 3. However, in the case of substantial items or lengthy documents, translations may be confined to extracts. At any time the Court may, of its own motion or at the request of one of the parties, call for a complete or fuller translation …

Article 46 of the GC RoP contains nearly identical provisions. 4.30

Written pleadings. It follows from the above provisions that the written pleadings must be presented in the language of the procedure, which never poses any difficulty to the main parties, given the rules on the determination of that language. Interveners, however, sometimes ask for the authorisation to use another language.

4.31

Material annexed to procedural documents in another language – irregular, but often tolerated. It follows from the CJ RoP and the GC RoP that, in principle, all annexes to written pleadings as well as documents produced upon request from the EU Courts, which are not in the language of the case, have to be accompanied by translations, at least of extracts.77 In practice, this rule is not enforced rigorously, given the time and expenses that translations may require and also the fact that documents drawn up in languages other than that of the case can often be directly used by Judges and their cabinet members.78 Voluminous annexes are often submitted in languages other than that of the case in the procedure before the General Court. In the fields of competition and State aid, examples include expert opinions, economic analyses, transcripts of leniency applications, oral testimonies or the DVD ROM that contains the entire Commission case file. In the field of trade marks, sales data and brochures are frequently produced as evidence in various languages. The GC PR address the issue of receiving material in languages other than that of the case: 92. The Registrar shall refuse to enter in the register and to place on the case-file procedural documents or items drawn up in a language other than the language of the case. If in doubt, the Registrar shall refer the matter to the President in order for a decision to be taken. … 77 CJ RoP, Art 38 (1)–(3); GC RoP, Art 46(1)–(3). 78 To give an example, the strict application of the relevant provisions might mean that in a case where Swedish is the language of procedure, and the General Court asked the applicant to submit a document drawn up in English by a measure of organisation of procedure, a Swedish translation would be required, while only the original English version would be used for the examination of the case if the Judge-Rapporteur and the référendaire in charge of the case do not speak Swedish.

Language of the Case 399 99. Where material annexed to a procedural document is not accompanied by a translation into the language of the case, the Registrar shall require the party concerned to make good the irregularity if such a translation appears necessary for the purposes of the efficient conduct of the proceedings. If the irregularity is not made good, the annexes in question shall be removed from the case-file.

It follows from the quoted sections that the rule under which material may only be filed in the language of the case is applied with some flexibility. While submitting material annexed to procedural documents in another language formally constitutes an irregularity, the Registrar has no general obligation to issue a request to make it good. As follows from para 99 of the GC PR and as held by the General Court in several judgments, in the absence of a request from the other party, it is only if the translation of annexes into the language of the case appears necessary for the purposes of the efficient conduct of the proceedings that the Registrar has to make a request for regularisation.79 From the Court’s perspective, such a necessity implies that, first, the document is indeed important for the analysis of the case, and, secondly, it cannot be directly read by the Judge-Rapporteur and the référendaire examining the case. In practice, the translation of documents is rarely required, also because most of the irregularly annexed material is drawn up in widely used languages, especially in English. The parties may minimise the chance of receiving a request for regularisation if they provide translations of the relevant sections of the annexed material in the main document to which it is annexed. Oral procedure. The language of the case is used in the oral pleadings of the parties and in the minutes of the hearing80 (cf Section 4.2.8. Hearing). The representatives of the parties have to plead in the language of the case. The President of the Chamber and the Judges hearing the case may use another language in conducting the oral proceedings and in putting questions to the parties,81 simultaneous translation into the language of the case being ensured by the Registrar. Questions may often be put to the representatives of the parties in English or French by the Judges; however, the representatives have to reply in the language of the case. Witnesses and experts may also be authorised by the President of the Chamber to use another official language of the EU, simultaneous translation being ensured.82

4.32

AG Opinion. The Opinion of the Advocate General is formally part of the oral procedure; it may be delivered in a language other than that of the case.83 The translation departments of the Court of Justice of the European Union ensure that the Opinion is available in the language of the case at the time of its delivery.

4.33

Authentic texts. The texts of documents drawn up in the language of the case or, where applicable, in another language authorised by the EU Courts are authentic.84

4.34

79 Case T-525/14 Michelin v OHMI – Continental Reifen Deutschland (XKING) [EU:T:2015:944] paras 14–18. See also Case T-177/07 Mediaset v Commission [EU:T:2010:233] para 37. 80 CJ RoP, Art 38(1); GC RoP, Art 46(1). 81 CJ RoP, Art 38(8); GC RoP 46(7). While Judges thus have the possibility to use their native language, they usually prefer to address the parties either in English or French at the hearing to facilitate direct communication. 82 CJ RoP, Art 38(7); GC RoP, Art 46(6). 83 CJ RoP, Art 38(8); GC RoP, Art 46(7). 84 CJ RoP, Art 41; GC RoP, Art 49.

400 Common Rules on Procedure

4.1.4.3. Exceptions and Derogations from the Exclusive Use of the Language of the Case (i) States 4.35

Infringement actions. In the rare situation where an infringement action is brought by a Member State against another Member State under Article 259 TFEU, the language of the case is the official language of the defendant Member State. However, as a novelty introduced by the CJ RoP of 2012, the Member State that brings the action may still use its official language in the application and throughout the written and oral parts of the procedure.85

4.36

Preliminary rulings. In preliminary ruling proceedings, the language of the case is the language of the national court that sent the request for a preliminary ruling.86 The requests are served by the Court of Justice on the Member States in the original version, accompanied by a translation into the official language of the Member State to which they are being addressed.87 Member States may use their official language throughout the written and oral parts of procedure before the Court of Justice.88 EEA EFTA States and the EFTA Surveillance Authority may choose an EU language in which the request will be served on them and are entitled to use an EU language other than that of the case in their written and oral statements.89 Other non-Member States are also entitled to use an EU language other than that of the case if they take part in the preliminary ruling procedure pursuant to Article 23(4) of the Statute.90

4.37

Interventions. Member States may also use their official language in both the written and oral parts of the procedure when they intervene in cases before the EU Courts (interventions are only possible in direct actions). EEA EFTA States and the EFTA Surveillance Authority are entitled to use another EU official language.91 (ii) Requests for the Authorisation to Use Another Language

4.38

Joint request of the parties in direct actions. The Rules of Procedure provide that in direct actions, at the joint request of the parties, the use of another of the EU official languages may be authorised.92

4.39

Derogation requested by one of the main parties or by the intervener in direct actions. Under the Rules of Procedure, at the request of one of the parties, and after the other parties and (in proceedings before the Court of Justice) the Advocate General have been heard, the use of another of the EU official languages may be authorised ‘as the language of the case for all or part of the proceedings’. Such a request may not be submitted by an institution or body.93 In this regard, the General Court held that a request for leave to derogate from the language rules has to be accompanied by a detailed and specific statement of reasons.94 The mere fact that the c ounsel of 85 CJ RoP, Art 38(4). This provision was inserted into the CJ RoP of 2012 on the request of the Member States: see M-A Gaudissart, ‘La refonte du règlement de procédure de la Cour de Justice’ (2012) Cahiers de droit européen 603, 621. 86 CJ RoP, Art 37(3). 87 CJ RoP, Art 98(1). 88 CJ RoP, Art 38(4). 89 CJ RoP, Art 98(2); CJ RoP, Art 38(5). 90 CJ RoP, Art 38(6). 91 CJ RoP, Art 38(4); GC RoP, Art 46(4)–(5). 92 CJ RoP, Arts 37(1)(b) and 37(4); GC RoP, Arts 45(1)(b) and 45(2). 93 CJ RoP, Art 37(1)(c); GC RoP, Art 45(1)(c). 94 Order of 13 May 1993 in Case T-74/92 Ladbroke Racing v Commission [EU:T:1993:41] paras 14–18.

Representation of the Parties 401 the applicant changed during the proceedings and the new counsel preferred to plead in another language at the hearing was found to be insufficient to justify ‘a departure from the initial choice made by the applicant itself ’.95 In practice, it is mostly interveners who request a leave to derogate from the language rules.96 They tend not to seek a change of the language of the case but, rather, the authorisation to use another one. However, the chances of obtaining such an authorisation in the written part of the procedure are slim. In CSF and CSME v Commission, the General Court rejected the request for authorisation to use another language in the written procedure on the grounds that it would cause delays in the procedure and would impair the procedural rights of the main parties,97 who would need to procure the translation of the documents submitted by the intervener from their own resources. Likewise, in BP Chemicals v Commission, where the applicant objected to the submission of annexes by the intervener in a language other than that of the case, the Court required the production of translations.98 Conversely, in Salt Union v Commission, the request of the intervener to use another language at the hearing was granted, as the Court found that it would neither delay the procedure nor impair the rights of the main parties.99 It should be emphasised that interveners in intellectual property cases have a special status and have the option to change the language of the case to that of the proceedings before the Boards of Appeal of the EUIPO or the CPVO (cf para 4.375). Derogation requested by a party in preliminary ruling proceedings. At the duly substantiated request of one of the parties to the main proceedings, and after the other party to the main proceedings and the Advocate General have been heard, the use of an EU language different from that of the preliminary reference may be authorised for the oral part of the procedure. In such a case, the other interested persons referred to in Article 23 of the Statute may also use that other authorised language.100

4.40

Decisions on requests for derogations from the language rules. In the situations discussed above (cf paras 4.38–4.40), the President of the Chamber has the power to grant the leave to derogate from the language rules, unless one of the parties objects, in which case the Chamber decides on the request.101

4.41

4.1.5. Representation of the Parties 4.1.5.1. The Obligation to be Represented (i) Direct Actions The obligation to be represented by an agent or lawyer. In direct actions, the Member States and the EU institutions have to be represented before the Court of Justice by an agent appointed for each case. The agent may be assisted by an adviser or by a lawyer. The same rules apply to the 95 Order of 24 January 1997 in Case T-121/95 EFMA v Council [EU:T:1997:6] paras 11–13. 96 The Commission also often asks for authorisation to reply to oral questions at the hearing also in English or French. This is to make the hearing more efficient, bearing in mind that the language agent of the Commission is not always the one who knows the case best on substance. The Court of Justice is often ready to accept such a request, while the General Court will only do so in exceptional cases. 97 Order of 10 February 1995 in Case T-154/94 CSF and CSME v Commission [not reported] paras 39–42. 98 Order of 26 June 1996 in Case T-11/95 BP Chemicals v Commission [EU:T:1996:91] paras 10–12. 99 Order of 17 November 1995 in Case T-330/94 Salt Union Ltd v Commission [EU:T:1995:194] para 26. 100 CJ RoP, Art 37(3). 101 CJ RoP, Art 37(4); GC RoP, Art 45(2). There are no explicit rules regarding the authorisation given to non-Member States.

4.42

402 Common Rules on Procedure EEA EFTA States and the EFTA Surveillance Authority. Non-privileged parties must be represented by a lawyer.102 These provisions apply both to the main parties and to the interveners.103 4.43

Agents represent EU institutions and Member States. The agents of the institutions are the members of the EU institutions’ respective legal services. The Legal Service of the Commission is divided into teams, such as the Competition Team, the State Aid and Antidumping Team, and the Institutions Team. Members of the Commission’s Legal Service may spend up to 10 years in a team and thus become highly specialised in a given field. The agents of the Member States are government officials, mostly working for a unit in the ministry of justice of that State, which is specialised in EU litigation. Most Member States have two to five agents who regularly appear before the EU Courts. Autonomous entities of Member States, such as German Länder or Spanish Communidades Autónomas, are not Member States and therefore may not be represented by their agents but only by lawyers admitted to the bar.104

4.44

The notion of a ‘lawyer’. The term ‘lawyer’ within the meaning of Article 19 of the Statute is an autonomous notion of EU law and must be given an independent and uniform interpretation throughout the EU.105 The status of a lawyer is differentiated from that of other persons authorised to represent parties before some national courts by the fact that he is subject to rules of professional discipline, laid down and enforced in the general interest by institutions endowed with the requisite powers for that purpose, such as bar associations.106

4.45

‘Lawyers’ must be authorised to practise in an EEA State. Under Article 19 of the Statute, only a lawyer authorised to practise before a court of an EU Member State or an EEA EFTA State may represent or assist a party before the EU Courts.107 In Cañas, the General Court found that this condition was also fulfilled in the case of a Swiss lawyer registered on the list of ‘foreign lawyers’ at the Paris Bar and practising under his original Swiss title, given the bilateral treaties between the EU and Switzerland, the relevant French legislation and the fact that he was bound by the deontological rules applicable to lawyers admitted to French bars.108

4.46

Patent and trade mark attorneys are not ‘lawyers’. Patent and trade mark attorneys, even if they are entitled to represent parties in certain actions before national courts, are not covered by the term ‘lawyer’ within the meaning of Article 19 of the Statute. Therefore, they may not represent or assist parties before the EU Courts in direct actions, intellectual property cases and appeals. An application signed by a patent and trade mark attorney, ‘patent attorney litigator’, Patentanwalt or agent de brevet will be dismissed as (manifestly) inadmissible.109 In practice, however, patent and trade mark attorneys might assist the lawyer representing the party, although the documents submitted to the EU Courts have to be signed by the lawyer. At the hearing, they are normally allowed to answer questions asked by the EU Courts in the presence and under the authority of the lawyer. 102 Statute, Art 19; CJ RoP, Art 119(1); GC RoP, Art 51(1). 103 CJ RoP, Art 130(3); GC RoP, Art 143(3). 104 Order of 20 February 2008 in Case C-363/06 P Comunidad Autónoma de Valencia v Commission [EU:C:2008:99] para 21. 105 Order of 20 February 2008 in Case C-363/06 P Comunidad Autónoma de Valencia v Commission [EU:C:2008:99] para 25 and the case law cited. 106 Order of 20 October 2008 in Case T-487/07 Imperial Chemical Industries v OHIM (FACTORY FINISH) [EU:T: 2008:453] para 18. 107 Statute, Art 19. 108 Order of 26 March 2012 in Case T-508/09 Cañas v Commission [EU:T:2012:152] paras 21–35. 109 Order of 9 September 2004 in Case T-14/04 Alto de Casablanca v OHIM – Bodegas Chivite (VERAMONTE) [EU:T:2004:258] paras 9–11; Order of 20 October 2008 in Case T-487/07 Imperial Chemical Industries v OHIM (FACTORY FINISH) [EU:T:2008:453] para 22.

Representation of the Parties 403 A ‘lawyer’ must be a third party. A non-privileged party may not act for itself but must use the services of a third person authorised to practise before a court of an EU Member State or an EEA EFTA State.110 That requirement is based on a conception of the lawyer’s role as collaborating in the administration of justice and as being required to provide, in full independence and in the overriding interests of justice, such legal assistance as his client needs.111 This rule is applied strictly. For instance, a lawyer authorised to practise in an EU Member State was not allowed to represent a company of which he was a director.112 Clearly, in-house lawyers are not third parties, so are not entitled to represent their companies or any other company belonging to the same group.113 Nor are natural persons allowed to represent themselves, even if they are entitled to bring proceedings before national courts.114

4.47

Inobservance of the rules on representation renders the application inadmissible. If the application is signed by a person who is not entitled to represent the party, the EU Courts dismiss it as inadmissible or manifestly inadmissible,115 of their own motion, and usually without a hearing, since non-compliance with the rules on representation is an absolute bar to proceedings.116 This is an irremediable error: there is no possibility for regularisation117 and, in actions for annulment, staff cases and intellectual property cases, the order dismissing the application is, in practice, always adopted after the expiry of the deadline within which another action could be brought against the same act.118 Moreover, since the application has to be signed by a representative within the meaning of Article 19 of the Statute,119 there is no possibility to correct the initial error by changing the representative at a later stage of the proceedings. If the initial application was filed by a lawyer but later the party can no longer afford representation, the EU Courts will dismiss his case by stating that there is no need to adjudicate.120

4.48

Lawyers representing EU institutions. Although, under Article 19 of the Statute, a lawyer may only ‘assist’ an agent when an EU institution is represented, in practice, the agent and the lawyer are placed on an equal footing121 (from the point of view of the EU Courts, whereas under her or his contract with the institution, the lawyer has to follow the instructions of the agents). The lawyer of the EU institution may even accomplish the larger part of the tasks associated with the institution’s representation and plead alone at the hearing, although this is very rare.

4.49

110 Order of 5 December 1996 in Case C-174/96 P Lopes v Court of Justice [EU:C:1996:473] para 11; Order of 19 November 2009 in Case T-40/08 EREF v Commission [EU:T:2009:455] paras 25–26. 111 Order of 13 January 2005 in Case T-184/04 Sulvida v Commission [EU:T:2005:7] para 9; Order of 19 November 2009 in Case T-40/08 EREF v Commission [EU:T:2009:455] para 26. 112 Order of 21 March 2011 in Joined Cases T-139/10, T-280/10 to T-285/10 and T-349/10 to T-352/10 Milux v OHIM (RECTALCONTROL) [EU:T:2011:98] paras 20–22. See also Order of 13 January 2005 in Case T-184/04 Sulvida v Commission [EU:T:2005:7] para 10; Order of 19 November 2009 in Case T-40/08 EREF v Commission [EU:T:2009:455] paras 28–30. 113 Order of 9 November 2011 in Case T-243/11 Glaxo v OHMI – Farmodiética (ADVANCE) [EU:T:2011:649] paras 16–19. 114 Order of 5 December 1996 in Case C-174/96 P Lopes v Court of Justice [EU:C:1996:473] paras 10–11. 115 GC RoP, Art 126. 116 GC RoP, Arts 129 and 130(6). See, eg Order of 21 March 2011 in Joined Cases T-139/10, T-280/10 to T-285/10 and T-349/10 to T-352/10 Milux v OHIM (RECTALCONTROL) [EU:T:2011:98] paras 12–13. 117 Order of 23 November 2005 in Case T-507/04 Ruiz Bravo-Villasante v Commission [EU:T:2005:411] para 36. 118 Actions for annulment are always filed in practice only a few days before the expiry of the time limit or on the very date of the expiry. It is therefore practically impossible for the EU Courts to issue an order dismissing the action as inadmissible before the expiry; therefore, there is no time window for filing a fresh application. 119 Statute, Art 21; GC RoP, Art 76(b). 120 Order of 10 December 2014 in Case T-388/10 Productos Derivados del Acero v Commission [EU:T:2014:1093] para 16. 121 See, eg Case T-107/04 Aluminium Silicon Mill Products v Council [EU:T:2007:85].

404 Common Rules on Procedure For the opposite party, the presence of a lawyer makes a major difference regarding costs: if the institution is successful, its lawyer’s fee is a recoverable cost, which is to be paid by the opposite party. In contrast, agents do not generate such expenses, since they are officials of the institutions and receive salaries from them.122 4.50

Formal requirements and regularisation. Lawyers must lodge at the Registry an official document or an authority to act issued by the party whom they represent.123 While there is no such formal obligation for agents, they nonetheless also present such an authority from their hierarchy. The lawyer acting for a party must also lodge at the Registry a certificate that he is authorised to practise before a court of an EU Member State or an EEA EFTA State. If a party fails to comply with these provisions, the Registrar orders regularisation by setting a deadline within which these documents have to be produced.124 Repeated failure to submit these documents may result in inadmissibility. (ii) Preliminary Rulings

4.51

University teachers may also represent a party. In preliminary ruling proceedings, not only agents and lawyers may represent the parties, but also university teachers who are nationals of a Member State whose law accords them a right of audience. The latter have the same rights before the Court of Justice as lawyers.125

4.52

National rules on representation apply. In contrast to direct actions and appeals, the Court of Justice takes account of the national procedural rules applicable in the referring court insofar as the representation of the parties to the main proceedings is concerned. Any person empowered to represent a party before that court may therefore also represent him before the Court of Justice. It follows that, for instance, a party may validly represent himself or be represented by a person who is not a lawyer if it is allowed under the relevant national provisions.126 In the event of uncertainty as to the right to represent a party, the Court may, at any time, request the parties, their representatives or the referring court to provide the relevant information.127

4.1.5.2. Rights and Obligations of Representatives 4.53

Privileges and immunities. Agents, advisers and lawyers who appear before the EU Courts or before any judicial authority to which the EU Courts have addressed letters rogatory shall enjoy immunity in respect of words spoken or written by them concerning the case or the parties. Any papers and documents relating to the proceedings are exempt from both search and seizure.128

122 The sole recoverable costs incurred by an EU institution by reason of the participation of its agent in a Court case are a return train ticket from Brussels to Luxembourg and the costs of a hotel room. 123 Art 51(3) of the new GC RoP makes it clear that legal persons governed by private law have to give an authority to act to their lawyers. The new GC RoP of 2015 no longer require proof that the authority granted to the applicant’s lawyer has been properly conferred on him by someone authorised for the purpose, as was the case under Art 44(5) of the old GC RoP of 1991. 124 CJ RoP, Art 119(2)–(4); GC RoP, Art 51(2)–(4). For regularisation, see, eg Order of 22 June 2016 in Case T-43/16 1&1 Telecom v Commission [EU:T:2016:402] paras 15–30. 125 Statute, Art 19. 126 Case C-293/93 Houtwipper [EU:C:1994:330]; Case C-359/09 Ebert [EU:C:2011:44]. 127 CJ RoP, Art 97(3). 128 The detailed provisions are contained in CJ RoP, Arts 43–45; GC RoP, Arts 52–54.

Lodging, Service and Removal of Procedural Documents 405 Exclusion from the procedure. Both Rules of Procedure provide that if the conduct of an agent, adviser or lawyer before the EU Courts is incompatible with the dignity of the latter or with the requirements of the proper administration of justice, or if the aforementioned persons are misusing their rights, the EU Courts inform them. The EU Courts may also inform the competent authorities to whom those persons concerned are answerable. On the same grounds, the EU Courts may, at any time, having heard the person concerned, decide to exclude an agent, adviser or lawyer from the proceedings by reasoned order.129 In practice, these rules were applied in the interest of proper administration of justice against lawyers who filed a high number of cases based on essentially the same facts, which was held to be an abuse of procedure.130

4.54

4.1.6. Lodging, Service and Removal of Procedural Documents The EU Courts communicate with the parties through the Registries. The Court of Justice and the General Court have their respective Registries. The Registrar of the Court of Justice and the Registrar of the General Court are responsible for the acceptance, transmission, service and custody of documents, as well as for correspondence with the parties, applicants for leave to intervene and applicants for legal aid.131 These tasks are carried out by the staff of the two Registries. The above rules imply that, apart from the hearing, the parties are not allowed to have any direct contact with the Judges and their cabinet members. Some procedural deadlines, such as those for answering written questions of the EU Courts or for producing documents, as well as the date of the hearing, are in practice decided by the Chamber of Judges that hears the case, however, those deadlines and dates are formally set and communicated to the parties by the Registries.

4.55

4.1.6.1. Lodging Documents Date and signature. All procedural documents must bear a date and the handwritten signature of the representative.132 In the calculation of procedural time limits, only the date and time in the Grand Duchy of Luxembourg of lodgement at the Registry are taken into account.

4.56

Annexes and schedule of annexes. Materials relied on in the procedural document have to be annexed to it, together with a schedule listing each item. Lengthy materials may be annexed in the form of extracts, in which case a full copy must be lodged at the Registry.133

4.57

Methods of lodging procedural documents. As of 1 December 2018, in proceedings before the General Court, procedural documents must be lodged via the e-Curia system,134 save for some specific exceptions.135 In proceedings before the Court of Justice, in 2018, 75% of the procedural

4.58

129 CJ RoP, Art 46(1)–(2); GC RoP, Art 55(1)–(2). 130 See Order of 19 March 2015 in Case F-58/13 Marcuccio v Commission [EU:F:2015:16] paras 9–25, in which the Civil Service Tribunal pointed out that the same applicant had brought more than 190 cases against the Commission. See also Order of 29 March 2001 in Case T-18/01 R I Goldstein v Commission [EU:T:2001:110] paras 40–46. 131 CJ RoP, Art 20(1) and (3); GC RoP, Art 35(1). GC PR, paras 3–5. 132 CJ RoP, Art 57; GC RoP, Art 72. 133 CJ RoP, Art 57; GC RoP, Art 72. 134 GC RoP, Art 56a(1); GC PR, Arts 88–91. 135 Exceptions to the mandatory use of the e-Curia platform are annexes whose submission is impossible via e-Curia, as specified in GC RoP, Art 72(4), and applications for legal aid where the applicant is not represented by a lawyer, pursuant to GC RoP, Art 147(6). These materials can be sent by post. Sensitive materials submitted under GC RoP, Art 105(1) are also exempted from the use of e-Curia. See also GC PR, paras 89–91.

406 Common Rules on Procedure documents were lodged via the e-Curia platform.136 Apart from that method, documents may also be lodged with the Court of Justice in paper form by post, in which case advance copies may be sent by fax or electronic mail. Procedural documents may also be lodged by delivering them in person to the Court of Justice.137 (i) e-Curia 4.59

Lodging documents by means of e-Curia. The e-Curia application is common to the Court of Justice and the General Court. It allows representatives of parties to lodge procedural documents (together with any annexes) electronically, without the need for sending an original paper copy by post. The provisions governing its use are contained in two decisions with similar provisions, the CJ e-Curia decision138 and the GC e-Curia decision.139 e-Curia is a secure platform which meets the requirements of authenticity, integrity and confidentiality of the documents exchanged. It helps the parties avoid the risks of missing procedural deadlines which are present when fax transmission is chosen (cf paras 4.66–4.67).140 Detailed advice on the use of e-Curia (entitled ‘Conditions of Use’) can be found on the curia.eu website.

4.60

Authentication and signature of the document. A procedural document lodged by means of e-Curia is deemed to be the original of that document where the representative’s user identification and password have been used for that lodgement. Such identification also constitutes the signature of the document concerned.141

4.61

Time of lodging is when validation is sent. A procedural document is deemed to have been lodged at the time of the representative’s validation of lodgement of that document (Luxembourg time). That time is taken into account for verifying if the document was filed within the applicable procedural time limit.142

4.62

Lodging annexes by post. Annexes to a procedural document, mentioned in the body of that document but which, by their nature, cannot be lodged by e-Curia, may be sent separately by post, provided that they are mentioned in the schedule of annexes to the document lodged by e-Curia.143 The schedule of annexes must identify which annexes are to be lodged separately. Those annexes must reach the Registry no later than 10 days after the lodging of the procedural document by e-Curia. In practice, annexes sent by post may be, for example, DVD ROMs or USB keys containing the Commission case file in competition cases or models of three-dimensional trade marks. (ii) Lodging Documents with the Court of Justice by Post or in Person

4.63

Only before the Court of Justice. As of 1 December 2018, in proceedings before the General Court, procedural documents may only be lodged via the e-Curia application. The below paragraphs (cf paras 4.64–4.67) thus only concern proceedings before the Court of Justice. 136 2018 Annual Report of the Court of Justice of the European Union, p. 18. 137 CJ RoP, Art 57(7)–(8); CJ PD, paras 46–50. 138 Decision of the Court of Justice of 16 October 2018 on the lodging and service of procedural documents by means of e-Curia (OJ 2018 L 293, p. 36). 139 Decision of the General Court of 11 July 2018 on the lodging and service of procedural documents by means of e-Curia (OJ 2018 L 240, p. 72). 140 One of the most common mistakes is a discrepancy between the signatures on the advance copy sent by fax and the original document sent by post. It renders applications inadmissible. 141 CJ e-Curia decision, Art 3; GC e-Curia decision, Art 3. 142 CJ RoP, Art 57(6). CJ e-Curia decision, Art 5; GC e-Curia decision, Art 5. 143 GC RoP, Art 72(4); GC PR, para 90.

Lodging, Service and Removal of Procedural Documents 407 Lodging the signed original and the certified copies. When procedural documents are lodged in paper form by post or in person, the original of every procedural document must bear the handwritten signature of the party’s representative.144 The original, accompanied by all annexes referred to therein, must be submitted together with the certified copies, whose number is specified in the CJ RoP.145

4.64

Annexes. A file containing items and documents relied on in the procedural document and a schedule listing them have to be annexed to each procedural document. Where, in view of the length of an item or document, only extracts from it are annexed to the procedural document, the whole item or document or a full copy of it must be lodged at the Registry.146

4.65

Lodgement by post – advance copies sent by fax or email must be followed by the original in 10 days. Under the CJ RoP, all procedural documents must bear a date. In the calculation of procedural time limits, only the date and time of lodgement of the original at the Registry is taken into account,147 that is, the time of receipt by the Court of Justice. It means that when procedural documents are lodged by post, the time of lodgement is not the date of sending them by registered letter, as is the case in proceedings before many national courts. However, the CJ RoP foresee the possibility of transmitting advance copies by fax or by electronic mail. In this regard, the CJ RoP foresee that the date on and time at which a (full) copy of the signed original of a procedural document, including the schedule of annexes and the annexes, is received at the Registry by telefax or electronic mail is deemed to be the date and time of lodgement for the purposes of compliance with the procedural time limits, provided that the signed original of the procedural document, accompanied by the annexes and certified copies, is lodged at the Registry no later than 10 days thereafter148 (that is, if sent by post, the originals must arrive at the Registry within 10 days).

4.66

The slightest discrepancy between the original and the advance copy sent by fax or email (including non-identical signature) is an irremediable defect. The original document bearing the handwritten signature of the representative must be sent without delay, immediately after its dispatch by fax or email, without any corrections or amendments, even of a minor nature, being made to the document. In the event of any discrepancy between the original document bearing the handwritten signature of the representative and the copy previously received at the Registry by fax or email, the date on which that original signed document is lodged is deemed to be the date of receipt.149 These rules are applied strictly. The text of the original and that of the advance copy, as well as the signatures put on them, are carefully compared by the Registry. Since advance fax copies are usually transmitted very shortly before the expiry of the time limits, the fact that the original and the advance copy are not identical – including the situation where only the signatures put by the same representative are slightly different – implies that the document is late. This is a critical error which cannot be regularised, and it has caused the inadmissibility of several actions.150 The consequences are especially grave (the loss of access to the Court because of filing

4.67

144 If the application does not bear the handwritten signature of the representative but only his stamp, it will be dismissed as inadmissible. There is no possibility to put the application in order. See Case T-223/06 P Parliament v Eistrup [EU:T:2007:153] paras 50–54 and 60. 145 CJ RoP, Art 57(1)–(2). 146 CJ RoP, Art 57(4)–(5). 147 CJ RoP, Art 57(6); CJ PD, para 48. 148 CJ RoP, Art 57(7); CJ PD, para 49. 149 This is the consequence of the provisions in CJ RoP, Art 57(1) and (7). 150 Differences in the text: Case C-229/05 P PKK and KNK v Council [EU:C:2007:32] paras 98–100; Discrepancy in the signatures: Order of 29 November 2011 in Case T-345/11 ENISA v EDPS [EU:T:2011:700] paras 15–17; Order of 3 October 2012 in Case T-360/10 Tecnimed v OHIM – Ecobrands (ZAPPER-CLICK) [EU:T:2012:517] paras 15–17 and 28.

408 Common Rules on Procedure documents out of time) in the context of lodging actions for annulment, appeals and applications to intervene.

4.1.6.2. Service of Documents (i) e-Curia 4.68

Service by means of e-Curia. Under the e-Curia decisions (cf para 4.13), procedural documents, including judgments and orders, shall be served by means of e-Curia on the holders of e-Curia accounts who, in a case, represent a party or act on behalf of a court or tribunal of a Member State (in preliminary ruling proceedings). Procedural documents shall also be served by means of e-Curia on Member States, EEA EFTA States and EU institutions or bodies that have accepted this method of service.151 The intended recipients are notified by email of any document served on them by means of e-Curia. A procedural document is served at the time when the intended recipient requests access to that document. In the absence of any request for access, the document is deemed to have been served on the expiry of the seventh day following the day on which the notification email was sent.152 In proceedings before the General Court, as of 1 December 2018, the general method of serving documents is using the e-Curia platform, save some exceptions specified in the GC RoP.153 (ii) Post, Fax, Personal Delivery

4.69

Service by post, fax or personal delivery. In order to receive documents from the Court of Justice by fax or by electronic mail, the addressee has to specifically agree to that.154 The CJ RoP contain detailed provisions on service by post.155 Where procedural documents cannot be served on a party through e-Curia in proceedings before the General Court, they must be served by post or by personal delivery.156

4.1.6.3. Removal from the File 4.70

General. As a rule, the EU Courts only add to the file procedural documents whose production is foreseen in the Rules of Procedure, including those which were lodged by the parties or EU institutions or bodies in response to written questions (cf para 4.277) or to an order requesting the production of materials (cf paras 4.291–4.296). Save some exceptions, the Registries thus ex officio refuse to register unsolicited documents (cf para 4.301).157 In some situations, however, it is not obvious to the EU Courts whether the materials produced by a party should not be added to the case file at the moment of their reception by the Registries. The EU Courts may decide to remove documents from the file at a later stage of the procedure on their own initiative or on the request of one of the parties.

151 CJ

e-Curia decision, Art 6; GC e-Curia decision, Art 6. e-Curia decision, Art 7; GC e-Curia decision, Art 6. RoP, Arts 56a(1) and 57. 154 CJ RoP, Art 48(2). 155 CJ RoP, Art 48(1) and (3). 156 GC RoP, Art 57(2). 157 CJ PD, para 46; GC PR, para 92. 152 CJ

153 GC

Time Limits 409 Illegally obtained documents. Documents which turn out to be illegally obtained by a party are removed from the file.158 In Westdeutsche Landesbank Girozentrale and in Inuit, the applicants attempted to rely on internal legal opinions prepared, respectively, by the legal services of the Commission and the Council, which came into the applicants’ possession under unclear conditions. Upon the request of the defendant EU institutions, the General Court decided to remove these documents from the case file.159 In Inuit, it added that a quotation from that internal report reproduced in the application also had to be removed from the file.160

4.71

Superfluous parts of the responses to written questions. The EU Courts may also remove from the file those parts of the responses to written questions that do not relate to the questions put by the Courts (cf para 4.302).

4.72

Corrigenda to written pleadings. The parties may submit corrigenda to their written pleadings in order to correct clerical errors, imprecise references or other mistakes of that ilk. In H&R ChemPharm, the General Court ruled that the request of the applicant to remove a corrigendum to the defence from the file was not granted, since the sole purpose of the corrigendum was to facilitate the Court’s work and that the drafting errors which it was intended to correct were readily detectable by both the applicant and the Court. Furthermore, none of the corrections made by the Commission affected the substance of its argument.161

4.73

4.1.7. Time Limits 4.1.7.1. Types of Time Limits General. The Treaties, the Statute and the Rules of Procedure lay down time limits for lodging various documents of procedure. These time limits can be categorised as follows: (i) time limits to bring or join proceedings, which cannot be extended (cf para 4.75); (ii) other procedural time limits for which extension may be granted (cf para 4.76); (iii) deadlines set by the EU Courts (cf para 4.77); and (iv) limitation periods (cf para 4.78).

4.74

Procedural time limits to bring or join proceedings – compliance examined ex officio, 10 days are added. Under the settled case law, periods prescribed for bringing proceedings, such as that laid down in Article 263(6) TFEU to bring an action for annulment and in Article 56(1) of the Statute to file an appeal (cf para 3.617), are intended to ensure that administrative decisions and decisions of the General Court become final and so to protect public interests. As a consequence, periods prescribed for bringing proceedings are a matter of public policy and are not within the discretion of the parties or the EU Courts. It follows that they may not be extended on request of a party and compliance with them is examined by the EU Courts of their own motion,162 that is, even when the opposite party raises no plea of inadmissibility based on the action or appeal being late. The time limits for bringing an action for failure to act (cf para 3.358),163 a staff case

4.75

158 However, evidence lawfully gathered by the Commission, which was previously obtained illegally by a third party, may normally be used by the Commission in an antitrust investigation. Case T-54/14 Goldfish v Commission [EU:T:2016:455] para 73. 159 Joined Cases T-228/99 and T-233/99 Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission [EU:T:2003:57] paras 90–92. 160 Order of 30 April 2010 in Case T-18/10 R Inuit Tapiriit Kanatami and Others v Parliament and Council [EU:T:2010:172] paras 19–23. 161 Case T-551/08 H&R ChemPharm v Commission (candle wax cartel) [EU:T:2014:1081] paras 23–27. 162 Case C-469/11 P Evropaïki Dynamiki v Commission [EU:C:2012:705] para 50. 163 Art 265(2) TFEU.

410 Common Rules on Procedure (cf para 3.492) or an intellectual property case (cf para 3.548), as well as those open for lodging an application for a leave to intervene164 (cf paras 5.262–5.264), also fall into this category. Importantly, these time limits are extended by 10 days on account of distance.165 4.76

Procedural time limits defined by the Rules of Procedure that may be extended. The Rules of Procedure contain some other time limits to be calculated by the parties – such as that to file the defence within two months counted from the service of the application.166 An extension of 10 days is added on account of distance. Compliance with these time limits is also examined ex officio by the EU Courts. In contrast to the time limits presented in para 4.75, an extension may be requested from the Registry.167

4.77

Deadlines set by the EU Courts. Once the defence is filed, for lodging further procedural documents, such as the reply, the rejoinder or a response to written questions, the President of the Chamber or the Registrar sets calendar days as deadlines for the parties, which include the 10-day extension on account of distance.168 Thus the parties do not need to calculate the day on which these time limits expire. These deadlines may be extended on the duly justified request submitted by the party. Compliance is examined ex officio.

4.78

Limitation periods – no extension on account of distance, no ex officio examination of compliance. The five-year limitation period foreseen in Article 46(1) of the Statute for bringing actions against the EU in matters arising from non-contractual liability and the 10-year limitation period laid down in Article 44(3) of the Statute for applying for revision are not procedural deadlines. They are limitation periods to which, crucially, the extension by 10 days on account of distance does not apply. This rule caused the dismissal of the action for damages in Electrabel and Dumanenti Erőmű as time-barred and therefore inadmissible, as it was exactly 10 days late.169 Another important feature of limitation periods is that, as opposed to procedural deadlines, compliance with them is not examined by the EU Courts of their own motion but only if the opposite party raises the issue of the procedural document being lodged out of time, by objecting to its admissibility.170

4.1.7.2. Calculation of Time Limits 4.79

General. The rules governing the time limits are rather complex and have an unusual feature as compared to national court proceedings: the time relevant for examining compliance is not the postal stamp on the dispatched procedural document as sent by the party but the Registry’s stamp added at the time of receipt of the document. Even careful and experienced litigators sometimes file documents out of time. To minimise risks, it is recommended to use the e-Curia application and to avoid lodging documents by post by transmitting advance copies by fax. 164 CJ RoP, Art 130(1); GC RoP, Art 143(1). 165 CJ RoP, Art 51; GC RoP, Art 60. 166 GC RoP, Art 81(1). 167 GC RoP, Art 81(3). The request for extension is always submitted to the Chamber. On proposal of the JudgeRapporteur, the President of the Chamber decides whether the extension is granted. One of the justifications often used by the Commission’s Legal Service is the fact that many applications have been filed in the same language, which means that the members of the Legal Service capable of working in that language need extra time to prepare the defence in all the cases. 168 GC RoP, Art 61. A typical formulation is: ‘The following time limit, which includes the extension on account of distance, is fixed for the next step to be taken in the proceedings.’ 169 Order of 13 November 2014 in Case T-40/14 Electrabel and Dunamenti Erőmű v Commission [EU:T:2014:1004]. 170 Case C-469/11 P Evropaïki Dynamiki v Commission [EU:C:2012:705] paras 51–54; Order of 13 November 2014 in Case T-40/14 Electrabel and Dunamenti Erőmű v Commission [EU:T:2014:1004].

Time Limits 411 The Rules of Procedure. The CJ RoP171 and the GC RoP172 contain the following identical provisions: 1.

4.80

Any procedural time limit prescribed by the Treaties, the Statute or these Rules shall be calculated as follows: (a) where a time limit expressed in days, weeks, months or years is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place shall not be counted as falling within the time limit in question; (b) a time limit expressed in weeks, months or years shall end with the expiry of whichever day in the last week, month or year is the same day of the week, or falls on the same date, as the day during which the event or action from which the time limit is to be calculated occurred or took place; if, in a time limit expressed in months or years, the day on which it should expire does not occur in the last month, the time limit shall end with the expiry of the last day of that month; (c) where a time limit is expressed in months and days, it shall first be calculated in whole months, then in days; (d) time limits shall include Saturdays, Sundays and official holidays …; (e) time limits shall not be suspended during the judicial vacations.

2.

If the time limit would otherwise end on a Saturday, Sunday or an official holiday, it shall be extended until the end of the next working day.

Official holidays. The official holidays mentioned in the quoted provisions of the Rules of Procedure are those of the Grand Duchy of Luxembourg, where the Court of Justice of the European Union has its seat. They are communicated in the Official Journal.173 Official holidays in other Member States are irrelevant.174

4.81

(i) Step One: Starting Day Starting day is the day following the day on which the event occurs. Where a time limit is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place is not counted as falling within the time limit in question. Thus, for example, in the case of an action for annulment, the day on which the contested measure was published, notified to the plaintiff or on which it came to the knowledge of the latter does not fall within the time limit (cf para 3.219).

4.82

e-Curia: time of service is when the served document is accessed or the seventh day from email notification. The intended recipients of the documents are notified by e-mail of any document served on them by means of e-Curia. A procedural document is served at the time when the intended recipient (representative or his assistant) requests access to that document. In the absence of any request for access, the document is deemed to have been served on the expiry of the seventh day (Luxembourg time) following the day on which the notification e-mail was sent.175

4.83

171 CJ

RoP, Art 49. RoP, Art 58. 173 CJ RoP, Art 24(6); GC RoP, Art 58(3). 174 Order of 12 July 2011 in Case T-241/11 Citi Travel v OHMI (CITITRAVEL DMC) [EU:T:2011:353] paras 12–15. 175 CJ e-Curia decision, Art 7; GC e-Curia decision, Art 6. 172 GC

412 Common Rules on Procedure (ii) Step Two: Duration of the Period 4.84

Main rule. A time limit expressed in weeks, months or years ends with the expiry (23:59:59 Luxembourg time) of whichever day in the last week, month or year is the same day of the week, or falls on the same day during which the event or action from which the time limit is to be calculated occurred or took place. If, in a time limit expressed in months or years, the day on which it should expire does not occur in the last month, the time limit ends with the expiry of the last day of that month. Where a time limit is expressed in months and days, it shall first be calculated in whole months, then in days.176

4.85

Starting day and duration of the period. The Rules of Procedure provide that the day on which the event occurs is not counted as falling within the time limit (the starting day being the next day), yet they also specify that the last day of the period is the day in the week, month or year that corresponds to the day on which the event occurs (cf para 4.80). The period between the starting day and the last day will nonetheless consist of entire weeks, months or years when this method is followed. For instance, where the Commission accessed the application via e-Curia on 25 March, the starting day of the time limit to file the defence begins on 26 March at 00:00:00, while the time limit (without extension on account of distance) ends on 25 May at 23:59:59. Thus the period consists of exactly two months.

4.86

It is irrelevant if the last day of the period falls on Saturday, Sunday or official holiday. While it does not follow obviously from the text of the Rules of Procedure (cf para 4.80), the fact that the end of the time limit (without extension on account of distance) falls on a Saturday, Sunday or official holiday does not play any role at this stage, but only at the next step, that is, once the extension on account of distance has been added.177 The 2018 amendment of the GC PR brought long-awaited clarification in this matter. The GC PR now provide that Article 58(2) of the [GC RoP], according to which a time limit which would otherwise end on a Saturday, Sunday or an official holiday is to be extended until the end of the next working day, shall be applicable only where the entire time limit, including the extension on account of distance, ends on a Saturday, Sunday or official holiday.178

(iii) Step Three: Extension on Account of Distance 4.87

Adding 10 days on account of distance. Under the Rules of Procedure, ‘the procedural time limits are extended by a single period of 10 days’.179 The length of the extension does not depend on the actual distance between the registered office of the party’s representative and the seat of the EU Courts. It is a single period which also applies to parties having their seat outside the EU. This extension is not added to limitation periods, such as the time open to bring an action for damages under Article 340 TFEU (cf para 4.78). (iv) Step Four: The Day on Which the Time Limit Expires

4.88

Expiry of the end day. The procedural document has to be lodged before the expiry of the last day of the time limit (on the tenth day of the extension on account of distance, where applicable), before midnight, that is, at latest 23:59:59 Luxembourg time.180

176 CJ

RoP, Art 49(1)(b); GC RoP, Art 58(1)(b). of 20 November 1997 in Case T-85/97 Horeca-Wallonie v Commission [EU:T:1997:180] para 25. PR, para 66. 179 CJ RoP, Art 51; GC RoP, Art 60. 180 Order of 1 April 2011 in Case T-468/10 Doherty v Commission [2011] ECR II-1497, paras 4 and 14. 177 Order

178 GC

Time Limits 413 Saturday, Sunday, official holiday. Under the Rules of Procedure, ‘if the time limit would otherwise end on a Saturday, Sunday or an official holiday, it shall be extended until the end of the next working day’.181 It is settled case law that this provision applies only where the entire period, including the extension on account of distance, ends on a Saturday, Sunday or official holiday,182 this rule being expressly confirmed in para 66 of the GC PR (cf para 4.86).

4.89

(v) Step Five: In the Case of Forward Copies, the Original has to Arrive at the Registry within 10 Days Forward copies. As of 1 December 2018, procedural documents may be filed with the General Court only via the e-Curia application. However, the Court of Justice still allows forward copies to be sent by telefax or as attachments to electronic mails. If the procedural document is lodged by fax or by electronic mail at the Registry of the Court of Justice and the signed originals (hard copies) arrive within 10 days, the submission date is deemed to be the one on which the email or fax arrived.183 The rules on compliance with these rules (which have nothing to do with the extension on account of distance) have been applied with draconian strictness. For instance, the mere fact that the original of the application arriving by post was signed differently from the forward copy sent by fax implied that the original was not submitted within the deadline and that, as a consequence, the application was lodged out of time.184 A fortiori, any difference in the text entails inadmissibility as well.185 Nor is unusually slow delivery by post a valid excuse (cf para 4.92). The rules on forward copies do not apply to the e-Curia system, where all correspondence between the parties and the EU Courts is done electronically, and which is therefore highly recommended to avoid dismissal of procedural documents as being lodged out of time.

4.90

The 10 days have to be calculated from the day of the fax transmission or receipt of email. It is crucially important that the 10 days open for submitting the signed original by post are counted from the arrival of the forward copy sent by fax or email, and not from the end day of the time limit (including the extension on account of distance). This is illustrated by the Honnefelder case: the time limit within which the appellant could lodge the appeal ended on 1 March 2013. However, she had already lodged a forward copy by fax on 21 February 2013. Since the signed original sent by post arrived at the Registry only on 5 March 2013 (which could have been in good time if the forward fax copy had been lodged any time between 23 February and 1 March 2013), the General Court dismissed the appeal as being late and, therefore, inadmissible.186 The amendments of the CJ RoP of 26 November 2019187 make it even clearer that the extension of the time limit by 10 days on account of distance (which has already been taken into account at an earlier stage of the calculation of the deadline, cf para 4.87) is not applicable to the period of 10 days within which the original of the procedural document must be submitted, counted from the reception of the forward copy sent by electronic mail or telefax.

4.91

Slow post is no excuse. The signed original must be sent immediately after the transmission of the forward copy by fax or email.188 However, the mere fact that the delivery of the signed original

4.92

181 CJ

RoP, Art 49(2); GC RoP, Art 58(2). of 20 November 1997 in Case T-85/97 Horeca-Wallonie v Commission [EU:T:1997:180] para 25. 183 CJ RoP, Art 57(7). 184 Order of 30 May 2013 in Case F-141/11 Marcuccio v Commission [EU:F:2013:68] para 23. 185 Case C-229/05 P PKK and KNK v Council [EU:C:2007:32] paras 98–100. 186 Order of 28 May 2013 in Case T-130/13 P Honnefelder v Commission [EU:T:2013:276] para 17. 187 CJ RoP, Art 57(7), as amended on 26 November 2019 (OJ 2019 L 316, p. 103). 188 Order of 28 May 2013 in Case T-130/13 P Honnefelder v Commission [EU:T:2013:276] paras 19–26. 182 Order

414 Common Rules on Procedure by post took an unusually long time (more than 10 days) is in itself not a valid excuse. Such a situation occurred in the Faktor Gęsina case, where the applicant dispatched the signed original on the very day on which it transmitted the forward copy by fax. The hard copy, however, arrived at the Registry more than 10 days later. The application was thus dismissed by the General Court as being lodged out of time and, therefore, inadmissible. On appeal, the Court of Justice confirmed the order and considered that the applicant could not raise the defence based on unforeseeable circumstances or force majeure, since it could not prove any administrative disorder or strike, and late delivery by post was an event against which it could have taken appropriate measures.189

4.1.7.3. Requesting the Extension of Time Limits 4.93

Certain time limits may be extended. Compliance with the time limits to bring or join actions is a matter of public policy and no extension may be granted (cf para 4.75). However, other procedural time limits may be extended by the EU Courts by decisions formally taken by the Registry.190 Such is the case of the time limit to file the defence, the reply and the rejoinder, and the response to the written questions of the EU Courts. Applications for extension must be sent to the Registrar, who may extend the time limits prescribed, in accordance with the authority accorded to him by the President of the relevant EU Court. Under the current arrangements regarding delegation of powers within the General Court, some shorter extensions may be decided by the Registry, while longer or repeated extensions may only be granted upon decision by the President of the Chamber. When necessary, the Registrar submits to the President of the Chamber proposals for the extension of time limits, by highlighting the relevant procedural issues, and the advantages and disadvantages of the extension. Applications for extension must be duly reasoned and be submitted in good time before the expiry of the time limit prescribed.191

4.1.7.4. Documents Filed Out of Time 4.94

May exceptionally be put on file, but only where the deadline was prescribed by the EU Courts. Under a new provision introduced by the GC RoP of 2015, in contrast to time limits defined by the Treaties, the Statute or the Rules of Procedure, where the deadline has been prescribed by the General Court, a procedural document lodged out of time may still be put on file and taken into consideration if the President192 so decides.193 Such a decision is often taken where a response to the Court’s written questions is lodged out of time but contains useful information which helps solve the case. The provision has no parallel in the CJ RoP. However, nothing prevents the Court of Justice from proceeding in a similar fashion.

4.1.7.5. Justifications – Unforeseeable Circumstances and Force Majeure 4.95

General. Article 45 of the Statute provides that no right shall be prejudiced in consequence of the expiry of a time limit if the party concerned proves the existence of unforeseeable circumstances194 or of force majeure. The case law on this provision has been mostly developed in the context of

189 Order

of 30 September 2014 in Case C-138/14 P Faktor B. i W. Gęsina v Commission [EU:C:2014:2256] paras 19–24. RoP, Art 52; GC RoP, Art 61. 191 GC PR, para 69. 192 cf para 1.61. 193 GC RoP, Art 62. 194 See Order of 8 November 2007 in Case C-242/07 P Belgium v Commission [EU:C:2007:672] para 17. 190 CJ

Time Limits 415 time limits for lodging an action or an appeal. In this regard, the EU Courts considered that, since the question of time limits for bringing proceedings are at the discretion of neither the EU Courts nor the parties and are a matter of public policy, exceptions, essentially consisting in excusable errors and cases of force majeure, had to be interpreted narrowly.195 Force majeure. The concept of force majeure contains an objective element relating to abnormal circumstances unconnected with the applicant and a subjective element involving the obligation, on his part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. Specifically, the applicant must demonstrate diligence in order to comply with the prescribed time limits.196 In Gbagbo, the Court of Justice held that the mere reference to an armed conflict in Ivory Coast, of which the applicants were nationals, was insufficient to show force majeure. The applicants actually did not present any material enabling the Court to understand in what way and for what specific period of time the general situation of armed conflict and the applicants’ personal circumstances prevented them from bringing their actions in good time.197 In the era before the introduction of e-Curia, the reference to faulty fax machines was a recurrent attempt to justify delays in the submission of the application.198 The defendant or the respondent in appeal cases may also rely on force majeure to justify the late submission of the defence, the response or other documents.199

4.96

Excusable error – misleading conduct by the institution or body may be irrelevant. The concept of excusable error justifying a derogation from the rules related to time limits can concern only exceptional circumstances in which, in particular, the conduct of the institution or body concerned was decisive in creating a pardonable confusion in the mind of a party acting in good faith and displaying all the diligence required of a normally well-informed person.200 This diligence seems to include bringing an action for annulment against a letter of the Commission even if it is not entirely clear, in the light of previous correspondence between the parties and of errors admitted by the institution, if the latter would subsequently maintain its position expressed in that letter or change it according to the request of the applicant. In Cobrecaf, the General Court held that earlier calculation errors already corrected by the Commission in a second decision and purported verbal assurances given by its officials as to further amendments were irrelevant, since nothing prevented the applicants from bringing an action against the corrected, second decision, especially because the Commission did not reply to their last letter requesting those further amendments.201 In dm Drogerie Markt, the General Court held that legitimate expectations as regards revocation or changes of the act can only be relied on to justify the late submission of an appeal before the Board of Appeal of the EUIPO if an authorised and reliable source gave precise, unconditional and consistent assurances in this respect.202 Lastly, in Bell & Ross, the appellant

4.97

195 Case T-514/93 Cobrecaf and Others v Commission [EU:T:1995:49] para 40. 196 Case C-195/91 P Bayer v Commission [EU:C:1994:412] para 31; Order of 18 January 2005 in Case C-325/03 P Zuazaga Meabe v OHIM [EU:C:2005:28] para 25; Order of 8 November 2007 in Case C-242/07 P Belgium v C ommission [EU:C:2007:672] para 17. 197 Joined Cases C-478/11 P to C-482/11 P Gbagbo and Others v Council [EU:C:2012:831] paras 73–74. 198 Order of 1 April 2011 in Case T-468/10 Doherty v Commission [EU:T:2011:133] paras 20–22. 199 For example, this happened on the occasion of a fire affecting electronic systems in the Commission headquarters (including the Legal Service) in the Berlaymont building in 2009 when the Commission relied on force majeure to justify the delay in submitting certain documents. 200 Case C-195/91 P Bayer v Commission [EU:C:1994:412] para 26; Order of 14 January 2010 in Case C-112/09 P SGAE v Commission [EU:C:2010:16] para 20. 201 Case T-514/93 Cobrecaf and Others v Commission [EU:T:1995:49] para 41. 202 Case T-36/09 dm-drogerie markt v OHIM – Distribuciones Mylar (dm) [EU:T:2011:449] para 108.

416 Common Rules on Procedure argued that the confusion between the original and the copies of the appeal (because of which the original submitted was not identical to the forward copy sent by fax) was attributable to the intervention of a third party, a company to which it entrusted the task of making the high number of copies required for the lodgement of the appeal. The Court of Justice considered that no excusable error or unforeseeable circumstance could be validly relied on, since the responsibility for preparing, monitoring and checking procedural documents to be lodged at the Registry rested with the lawyer of the party concerned.203 A fortiori, an error committed by the representative of the applicant cannot justify the lateness of the lodgement of the application.204

4.1.7.6. Procedure Regarding Actions Filed Out of Time 4.98

The EU Courts verify the respect of deadlines ex officio – procedure. It follows from the mandatory nature of the time limits to bring actions and the requirements as regards public policy that the EU Courts ascertain, of their own motion, whether the time limits have been complied with. The lateness of the application often causes the inadmissibility of actions lodged with the General Court. Under Article 126 of the GC RoP, where the action is manifestly bound to fail, the General Court may, by reasoned order and without taking further steps in the proceedings, give a decision on the action. In some cases, the Registrar of the General Court invites the applicant to explain the reasons justifying the delay,205 although it is not required by Article 126 of the GC RoP. It is therefore possible that the first document the applicant receives after submitting the application is the reasoned order of the General Court declaring his application manifestly inadmissible. Therefore, putting forward justifications for the delay such as force majeure (cf para 4.96) or excusable error (cf para 4.97) directly in the application may often be the only way to ensure that they are taken into account by the General Court. On the other hand, as was ruled in Gbagbo, if the General Court did not inform the applicant of its intention to dismiss his action as being out of time and did not ask the applicant to explain the delay, the latter is allowed to put forward justifications in the proceedings on appeal.206 The General Court may also rely on Article 129 of the GC RoP, under which it may at any time, of its own motion, after hearing the parties, decide whether there is any absolute bar to proceeding. In that case, ‘hearing the parties’ means that the General Court asks the applicant to explain in writing the delay in the submission of the application (or its original), and the defendant is allowed to comment on the applicant’s observations. The same procedure applies if the defendant has raised a formal plea of inadmissibility under Article 130 of the GC RoP: the applicant will be allowed to submit observations on the plea of inadmissibility and explain the delay, while the defendant will be allowed to comment on those explanations before the General Court decides on whether the action is time-barred. The General Court applies Articles 126 and 129 of the GC RoP when direct actions or intellectual property cases are brought out of time. As regards the Court of Justice, the corresponding rules are contained in Article 53(2) and Article 150 (direct actions), as well as in Article 181 (appeals) of the CJ RoP.

203 Case C-426/10 P Bell & Ross v OHIM [EU:C:2011:612] paras 47–50. 204 Case C-73/10 P Internationale Fruchtimport Gesellschaft Weichert v Commission [EU:C:2010:684] paras 45–57. 205 Order of 1 April 2011 in Case T-468/10 Doherty v Commission [EU:T:2011:133] para 3. 206 Joined Cases C-478/11 P to C-482/11 P Gbagbo and Others v Council [EU:C:2013:258] para 70. See also Order of 18 January 2005 in Case C-325/03 P Zuazaga Meabe v OHIM [EU:C:2005:28] para 24.

Time Limits 417 Burden of proof. It is for the party who is seeking to rely on the lateness of an application to demonstrate from which date the time limit for the filing of that application should run. However, as was held in Athinaïki Techniki, the defendant institution cannot rely on the lateness of the application for annulment if it failed to send the contested act by registered post or with a form for acknowledgement of receipt. In such a case, the defendant also cannot rely on the presumption that the postal service delivered the contested act to the applicant, at the latest, on the third day after it was sent.207 On the other hand, if the applicant argues that a force majeure or an excusable error prevented him from submitting the application for annulment in due time, he has to demonstrate the presence of such exceptional circumstances.

207 Case

C-521/06 P Athinaïki Techniki [EU:C:2008:422] paras 71–77.

4.99

4.2. Procedure in Direct Actions [written by Viktor Luszcz1]

4.2.1. Overview 4.100

The concept of direct actions. This chapter examines the practical aspects and the course of the procedure in direct actions. Those actions are the following, with account taken of the definition provided in the Rules of Procedure of the General Court (GC RoP):2 –– –– –– –– ––

infringement actions brought under Article 258 TFEU; actions for annulment brought under Article 263 TFEU; actions for failure to act brought under Article 265 TFEU; actions for damages brought under Articles 268 and 340 TFEU; disputes between EU institutions or bodies and their civil servants (staff cases) foreseen in Article 270 TFEU; –– disputes where the jurisdiction of the EU Courts is provided for in an arbitration clause contained in a contract concluded by or on behalf of the EU under Article 272 TFEU. In an action for annulment, an action for failure to act, an action for damages and in staff cases, an EU institution or body is always in the defendant’s position.3 (Throughout this book, the term ‘institution or body’ denotes any institution, body, office or agency of the Union within the meaning of Articles 263(1) and 265(1) TFEU, while the term ‘EU institution’ is reserved for institutions of the Union listed in Article 13(1) TEU.) In infringements actions, the European Commission (or, exceptionally, a Member State) is the applicant and a Member State is the defendant. In arbitration cases, the institution or body may be on either side, but is usually the defendant. The term ‘direct actions’ is essentially used to distinguish the above proceedings, in which the application filed with the EU Courts targets directly the defendant, from preliminary rulings, where the main proceedings are before national courts and the Court of Justice only answers the questions referred to it by the national courts. The procedure in direct actions is adversarial. It is therefore quite similar to the procedure in appeals and in intellectual property cases. A more detailed comparison of the various types of proceedings is provided in paras 4.14–4.20 above. 4.101

Division of direct actions before the EU Courts. Most direct actions (actions for annulment and failure to act brought by natural or legal persons, such actions brought by Member States against the Commission, all the actions for damages, as well as staff cases) are heard by the 1 Partner, Danubia Legal – Luszcz Law Firm. Attorney at law specialising in European and Hungarian competition and intellectual property law, member of the Budapest Bar. Previously worked 11 years as a référendaire at the General Court of the EU. 2 GC RoP, Art 1(2)i). NB: in the 2018 Annual Report of the Court of Justice of the European Union (p. 44), intellectual property cases are counted as direct actions; however, this is not in conformity with the prescriptions of the GC RoP, which treat them as a distinct category. 3 With the notable exception of Joined Cases C-202/18 and C-238/18 Rimšēvičs and ECB v Latvia [EU:C:2019:139] paras 66–77, where the Court of Justice qualified an action brought against Latvia under Art 14.2 of the Statute of the European System of Central Banks and of the ECB as an action for annulment.

Overview 419 General Court. There were 431 such cases in 2018 (including 93 staff cases). In addition, 301 intellectual property cases were brought before the General Court.4 Infringement actions are brought before the Court of Justice, similarly to actions for annulment or failure to act brought by an EU institution against another EU institution, or by a Member State against an EU institution except the Commission (cf Subsection 1.2.1.3. Division of Competences between the EU Courts). In 2018, 63 direct actions were brought before the Court of Justice, out of which 59 cases were infringement actions.5 Stages of the procedure. The structure of the present chapter reflects the standard steps of the procedure before the EU Courts in direct actions, which are the following:

4.102

–– –– –– –– –– –– –– ––

Application (Section 4.2.2); Defence (Section 4.2.3); Reply (Section 4.2.4); Rejoinder (Section 4.2.5); Preliminary report (Section 4.2.6); Measures of organisation of procedure and measures of inquiry (Section 4.2.7); Hearing (Section 4.2.8); Delivery of the Opinion of the Advocate General (only in proceedings before the Court of Justice) (Section 4.2.9); –– Deliberations (Section 4.2.10); –– Delivery of the final judgment or order ending the case (Section 4.2.11). In order to provide a streamlined presentation of the typical course of procedure in direct actions, only these stages are examined in this chapter. The procedure is substantially different where admissibility issues are involved, and will be explained separately (Section 5.7.1. Inadmissibility). Likewise, other incidental procedural issues, which are only present in a small part of direct actions, will be the subject of different chapters.6 Key issues. In practice, the application has paramount importance: the heads of claim and the pleas in law contained in it set a rigid framework for the litigation. New arguments not connected to the initial pleas cannot be brought up at later stages of the procedure. Furthermore, as a rule, the application must contain all the evidence the applicant wishes to rely on. The written procedure normally consists of two exchanges of written pleadings: application – defence; reply – rejoinder, although the second exchange may be dispensed with. After the closing of the written part of the procedure, the preliminary report is prepared by the Judge-Rapporteur, which provides a first assessment of all the factual and legal issues raised by the case. Subsequently, in preparation for the hearing, the EU Courts usually address written questions to the parties and request the submission of documents. Written questions have a crucial importance: since there is only one, rather short, hearing, the Chamber may not leave too many outstanding issues, especially factual ones, to be explored at the hearing. The purpose of the written questions is thus to supplement the hearing, by allowing the Chamber to gather most of the information necessary for solving 4 2018 Annual Report of the Court of Justice of the European Union, p. 44. Intellectual property cases form a category distinct from direct actions under the GC RoP. 5 2018 Annual Report of the Court of Justice of the European Union, p. 42. 6 Chapter 5.2. Interim Measures; Chapter 5.3. Expedition; Chapter 5.4. Interventions; Chapter 5.5. Joinder of Cases; Chapter 5.6. Stay of Proceedings.

4.103

420 Procedure in Direct Actions the case. At the hearing, the most valuable information for the Chamber is usually the reaction of the parties to the responses to the written questions given by the opposite party and the replies to the oral questions asked by the Judges. After the hearing, the draft judgment is drawn up by the Judge-Rapporteur. That draft is discussed and possibly amended by the Chamber during the deliberations, after which the final decision is adopted.

4.2.2. Application 4.104

Concept. On account of the adversarial nature of the proceedings, applications in direct actions must comply with strict rules, in order to allow the defendant to formulate his defence. The application initiating proceedings must, in addition to stating the name and address of the applicant and the name of the party against whom the application is made, state accurately the subject matter of the proceedings, the pleas in law and arguments relied upon, supported, as appropriate, by any evidence produced or offered, and the form of order sought by the applicant.7 The application and the aforementioned contents have to be sufficiently clear and precise to allow the Court and the other party to understand the subject matter of the application, the heads of claim and the pleas in law raised in support of the latter. Failure to comply with those requirements renders the application inadmissible.

4.105

The application sets a rigid framework for the litigation. Litigants must pay due attention to placing all the relevant arguments and supporting evidence in the application. As a rule, it is not possible to change the heads of claim, to raise new pleas in law or to offer new evidence at later stages of the procedure. Nor is it allowed to change the framework of the litigation by raising a new plea in law that was not put forward in the application. The exceptions to these rules are examined in para 4.161 et seq regarding the adaptation of the heads of claim, Subsection 4.2.4.2. New Pleas in Law in the Reply or Later, and Subsection 4.2.4.3. New Evidence in the Reply or Later.

4.106

Aide-memoire. The document having the title ‘Aide-mémoire – Application’, available on the curia.eu website, provides useful advice for drafting the application.8

4.2.2.1. Formal Requirements 4.107

Lodging the application. Like any other procedural document, the application has to be dated and signed. It has to include the annexes and the schedule of annexes. Lodging the application via e-Curia is the only method allowed to initiate proceedings before the General Court and is the recommended method as regards the Court of Justice. Transmission by post, possibly with forward copies sent by fax or in electronic mail, can also be chosen when the application is filed with the Court of Justice. In the case of transmission by post, the number of certified copies specified in the Rules of Procedure of the Court of Justice (CJ RoP) has to be dispatched to the Registry (cf paras 4.56–4.67).

4.108

Mandatory content of the application. Article 120 of the CJ RoP provides as follows:9 Content of the application An application of the kind referred to in Article 21 of the Statute shall state: 7 CJ RoP, Art 120; GC RoP, Art 76; CJ PD, para 13. 8 https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-11/tra-doc-en-div-t-0000-2018-201809528-05_ 00.pdf. 9 See also Statute, Art 21.

Application 421 (a) the name and address of the applicant; (b) the name of the party against whom the application is made; (c) the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law; (d) the form of order sought by the applicant; (e) where appropriate, any evidence produced or offered.

These provisions are mirrored in Article 76 of the GC RoP, which provides as follows, the only difference being in point (b): Content of the application An application of the kind referred to in Article 21 of the Statute shall contain: (a) (b) (c) (d)

the name and address of the applicant; particulars of the status and address of the applicant’s representative; the name of the main party against whom the action is brought; the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law; (e) the form of order sought by the applicant; (f) where appropriate, any evidence produced or offered.

Failure to comply results in inadmissibility. If a piece of mandatory content listed in Article 120 of the CJ RoP or Article 76 of the GC RoP is missing from the application, it will be dismissed as inadmissible. There is no opportunity to regularise defects in this regard.10

4.109

Missing content that can be regularised. There are also other formal requirements which are less crucial than the mandatory content of the application. In case of non-compliance with these requirements, the application must be put in order, upon request of the Registrar. With respect to proceedings before the General Court, the said requirements are listed in Annexes 1–3 of the Practice Rules of the General Court (GC PR).

4.110

Timing. Time limits for bringing actions before the EU Courts depend on the type of action and are thoroughly examined in the relevant chapters of this book. It is important to note that the rules on time limits for lodging the application are applied strictly, and there is no possibility to request an extension (cf para 4.75).

4.111

(i) Identification of the Applicant General. Article 120 of the CJ RoP and Article 76 of the GC RoP (cf para 4.108) require that the name and address of the applicant be indicated in the application. Moreover, the GC RoP also provide that, in the case of legal persons, recent proof as regards the company’s existence in law must be annexed.11 In the context of actions for annulment, the EU Courts have developed case law as regards the concept of a legal person which has the capacity to bring proceedings. That concept is broader than the one applied in national legal systems and is interpreted by the EU Courts independently from the latter (cf para 3.105 et seq). It may possibly be applied to other forms of action as well.

4.112

Several applicants may bring a common action. Nothing prevents several applicants from bringing a common action against an EU institution or body if the subject matter of their cases is

4.113

10 CJ

PD, para 13. RoP, Art 78(4).

11 GC

422 Procedure in Direct Actions (at least partly) the same. The list of applicants may sometimes be so long that it is contained in an annex to the judgment or order which ends the proceedings.12 4.114

Succession. If the applicant is a natural person who dies during the Court proceedings, the universal successor may express the wish to continue those proceedings in a statement, in which case he may replace the original applicant.13 If a company or other legal person is renamed, or ceases to exist and all its rights and obligations are vested in a new person, the latter has the right to continue the proceedings brought by the predecessor.14 The new name of the party will be indicated on the first page of the judgment.15 These rules may also apply where an entire business is transferred to a new owner. The General Court’s approach may be nuanced when examining succession in the case of a merger.16 (ii) Identification of the Defendant

4.115

General. The defendant against which the action is brought has to be identified in the application (cf para 4.108). This is usually a straightforward task when the defendant is an EU institution or body. However, applicants are sometimes unsure about the identity of the defendant when the action is brought against an EU entity to which an EU institution delegated powers.

4.116

Several defendants can be identified. The subject matter of the proceedings may often require that the case be brought against several defendants. For instance, an action for annulment through which the legality of a legislative act is challenged must be brought against the Council and the European Parliament.17 An applicant may also challenge in a single action several interconnected measures adopted by several institutions or bodies, which justify the identification of several defendants.18 Nothing prevents the applicant from naming multiple institutions or bodies as defendants where he is unsure about the identity of the entity that is responsible for the adoption of the contested measure or the conduct giving rise to damage.19

4.117

Application is admissible if the identity of the defendant can be established without doubt. The omission to identify the defendant correctly in the application does not cause its inadmissibility if it contains information which makes it possible to identify without any ambiguity the party against whom the application is made, such as, in an action for annulment, the designation of the contested measure and the EU institution or body responsible for it.20 In such a case, the

12 For instance, there were 121 applicants in Case T-190/12 Tomana and Others v Council and Commission [EU:T:2015:222]. 13 Case T-190/12 Tomana and Others v Council and Commission [EU:T:2015:222] paras 50–52. See also Case C-92/82 Gutmann v Commission [EU:C:1983:286] para 2. 14 Case C-294/83 Les Verts v Parliament [EU:C:1986:166] paras 13–18; Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich and Others v Commission [EU:T:2006:396] paras 70–74. 15 For example: ‘JFE Engineering Corp, formerly NKK Corp.’ See Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering and Others v Commission [EU:T:2004:221]. 16 Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering and Others v Commission [EU:T:2004:221] paras 46–51. 17 See, eg Joined Cases C-184/02 and C-223/02 Spain and Finland v Parliament and Council [EU:C:2004:497]. 18 Case T-190/12 Tomana and Others v Council and Commission [EU:T:2015:222]. 19 Case T-724/14 ECFA and IEP v Commission and EACEA [EU:T:2016:600]; Order of 3 November 2014 in Case T-90/14 Secolux v Commission and CdT [EU:T:2014:950]; Order of 23 October 2014 in Case T-695/13 ENAC v Commission and INEA [EU:T:2014:924]. 20 Case C-439/13 P Elitaliana v Eulex Kosovo [EU:C:2015:753] para 73. The Court of Justice slightly reformulated the test applied in Case C-85/86 Commission v EIB [EU:C:1988:110] paras 10–11, which now appears to be stricter.

Application 423 EU Courts may cure the defect and identify the correct defendant(s) during the procedure or, at the latest, in the judgment.21 Application inadmissible if clearly directed against a defendant to whom the criticised conduct is not ascribable or which does not have the capacity to be a defendant. Delegation of power by EU institutions to various entities, which may or may not have a legal personality and a capacity to be a party to proceedings before the EU Courts raises complex legal issues. An additional dimension of difficulties may be present when several institutions and bodies are involved in a procedure that results in the contested measure or constitutes conduct causing damage. Many applications have been dismissed on the grounds that the applicant directed them against an institution or other entity to which the criticised conduct (contested measure or conduct giving rise to damage) was not ascribable, or which did not have a capacity to be a party to proceedings before the EU Courts.22 The latter have no duty to help the applicant identify the defendant. As the Court of Justice ruled in Elitalia v Eulex Kosovo, when the application is made against a person other than the person to whom the contested measure is attributable, the Court may neither disregard the applicant’s clear intention nor replace it with its own and has no choice but to declare the action inadmissible.

In application of this principle, the action of Elitalia, brought both for the annulment of a measure and the compensation of damages against Eulex Kosovo in a public procurement matter, was dismissed as inadmissible. According to the General Court, the conduct of Eulex Kosovo was attributable to the Commission,23 which means that, in all likelihood, the action would have been declared admissible if it had been directed against the Commission. However, on appeal, the Court of Justice emphasised that Elitalia brought the action solely against Eulex Kosovo, which Elitalia erroneously considered to be a body, office or agency within the meaning of Article 263 TFEU. In these circumstances, the General Court was not required to identify the defendant of its own motion.24 In the light of the strict approach adopted in the Elitalia judgment, one might argue that in an unusual factual or legal context, where one or several EU institutions delegate power to an entity, the applicant may increase the likelihood of the admissibility of his action by naming several defendants. There is no procedural obstacle to that. In Italy v Commission and EPSO (notice of competition), Italy initially designated both the Commission and the European Personnel Selection Office (EPSO) as defendants when it sought the annulment of a notice of competition for the recruitment of EU officials, issued by EPSO. The General Court held that EPSO did not have the capacity to be a party to proceedings before the EU Courts; however, this fact did in no way cause the inadmissibility of the application, since it was also directed against the Commission, to which the contested measure was attributable.25 A similar approach also proved to be efficient in ECFA and IEP v Commission and EACEA, where the General Court found that the criticised conduct of the Education, Audiovisual and Culture Executive Agency (EACEA) was not imputable to the Commission. It dismissed the action as inadmissible insofar 21 Case C-85/86 Commission v EIB [EU:C:1988:110] paras 10–11. See also Joined Cases C-184/02 and C-223/02 Spain and Finland v Parliament and Council [EU:C:2004:497] para 17. Spain brought an action for annulment against the Council only. The Court of Justice considered that the identity of both defendants could be inferred without ambiguity from the fact that the contested directive was jointly adopted by the Council and the Parliament. 22 Case T-578/13 Luxembourg Pamol and Luxembourg Industries v Commission [EU:T:2015:354] paras 50–85 (application dismissed as inadmissible as the defendant should have been the European Food Safety Agency); Order of 4 June 2013 in Case T-213/12 Elitaliana v Eulex Kosovo [EU:T:2013:292] para 34–35. 23 Order of 4 June 2013 in Case T-213/12 Elitaliana v Eulex Kosovo [EU:T:2013:292] para 34. 24 Case C-439/13 P Elitaliana v Eulex Kosovo [EU:C:2015:753] paras 74–75. 25 Case T-248/10 Italy v Commission and EPSO [EU:T:2013:534] paras 26–27.

4.118

424 Procedure in Direct Actions as it was directed against the Commission, but ruled on the merits of the case insofar as it was brought against EACEA.26 4.119

Actions for damages may be directed against an institution or body, or the Union as a whole. An action based on the non-contractual liability of the EU may be directed both against the EU institution or body to which the conduct causing the alleged damage is ascribable or against the EU as a whole27 (cf para 3.416). The institution or body responsible for the conduct has to represent the Union before the EU Courts. In Kendrion v European Union, where damage allegedly resulted from the excessively long duration of the procedure before the General Court in an action for annulment,28 the General Court held that it was the Legal Service of the Court of Justice that had to represent the EU in the subsequent damages case brought against the EU, thereby rejecting the plea of inadmissibility raised by the Court of Justice of the European Union (as an EU institution and a party to the proceedings), which argued that the Commission had the duty to represent the EU in such a situation.29 (iii) Identification of the Subject Matter of the Case, Forms of Order Sought

4.120

Subject matter of the proceedings and form of order sought are interconnected. Even though Article 120 of the CJ RoP and Article 76 of the GC RoP mention ‘the subject-matter of the proceedings’ and the ‘form of order sought by the applicant’ under separate points as contents of the application, these concepts are closely linked. The subject matter of the proceedings includes the definition of the type of proceedings (action for annulment, action for damages, infringement action, etc) and the form of order sought, that is, what the applicant asks the EU Courts to order or to establish (annulment of the contested act, award of damages, infringement of EU law by a Member State, etc). Further elements of the subject matter of the case are presented in the relevant chapters of this book30 and at paras 4.139–4.147.

4.121

Type of proceedings. The type of proceedings (infringement action, action for annulment, action for failure to act, action for damages, action in a civil service matter, action based on an arbitration clause) has to be explicitly stated in the application. It is for the applicant to choose the legal basis of his action and not for the EU Courts themselves to choose the most appropriate type of proceedings.31 Several types of action may be combined. For instance, the applicant may seek, in a single application, both the annulment of an EU act and the compensation for damages caused by that act (cf para 3.333). In such a case, the applicant has to state the corresponding forms of order sought (ie heads of claim), that is, in this example, a request for the annulment of the EU act and a request for compensation of damages (cf paras 4.148–4.157). Under the settled case law, 26 Case T-724/14 ECFA and IEP v Commission and EACEA [EU:T:2016:600] para 23. See also Order of 3 November 2014 in Case T-90/14 Secolux v Commission and CdT [EU:T:2014:950] and Order of 23 October 2014 in Case T-695/13 ENAC v Commission and INEA [EU:T:2014:924]. 27 Case C-106/81 Kind v EEC [EU:C:1982:291]. The General Court may still specify the EU institution representing the EU as the defendant in the final decision: see Order of 16 April 2015 in Case T-746/14 Milković v Commission [EU:T:2015:219] para 5. 28 Case T-54/06 Kendrion v Commission [EU:T:2011:667]. 29 Order of 6 January 2015 in Case T-479/14 Kendrion v European Union [EU:T:2015:2] paras 17–31. See also Order of 2 February 2015 in Case T-577/14 Gascogne Sack Deutschland and Gascogne v European Union [EU:T:2015:80] paras 14–22. 30 cf Section 2.1.4. The Subject Matter of Infringement Proceedings (infringement actions); cf para 3.217 (action for annulment); cf para 3.386 (action for failure to act); cf para 3.422 (action for damages); cf paras 3.493–3.496 (staff cases). 31 Case C-160/03 Spain v Eurojust [EU:C:2005:168] para 35; Order of 12 October 2011 in Case T-353/10 Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission [EU:T:2011:589] para 18; Order of 6 January 2015 in Case T-36/14 St’art and Others v Commission [EU:T:2015:13] para 36.

Application 425 it is not necessary to refer to the Treaty provisions which entitle the applicant to bring the chosen type of action.32 However, it is strongly advised for practitioners to make that reference, especially if a less frequent type of action is chosen (such as an action brought pursuant to an arbitration clause or an action for failure to act), or where the application combines several types of actions, to avoid any doubt regarding the nature of the proceedings. Distinction between action for annulment and action based on an arbitration clause. Specifying the type of proceedings usually does not cause any difficulties in practice, with the notable exception of the distinction between actions for annulment (Article 263 TFEU) and actions brought pursuant to an arbitration clause (Article 272 TFEU). Applicants sometimes challenge, by bringing an action for annulment, letters sent by an EU institution or body which state the latter’s position in a matter governed by a private law contract between the institution or body and the applicant. Under settled case law, an action for annulment may only be brought against acts adopted in the institution’s or body’s administrative capacity, whereas acts having a contractual basis are not reviewable (cf para 3.20).33 Actions brought pursuant to an arbitration clause have to be founded on the national law of the Member State specified in the contract that contains the clause and on contractual provisions. If there are such pleas in law or arguments based on national law in an action for annulment (erroneously chosen as type of proceedings), the General Court may reclassify it as an action brought pursuant to an arbitration clause.34 If the arguments are only based on grounds of annulment foreseen in Article 263 TFEU and not on the national law governing the contract, the action cannot be requalified and will be dismissed as inadmissible35 (cf para 3.65).

4.122

Forms of order sought (heads of claim) correspond to the type of action chosen. The applicant must state the forms of order sought in the application. By means of the forms of order, also called ‘heads of claim’, the applicant specifies the type of order or declaration it asks the EU Courts to issue in the operative part of the judgment. The forms of order are a crucial part of the application and will be discussed in detail below (cf paras 4.148–4.157).

4.123

(iv) Pleas in Law and Summary of the Pleas in Law New wording in the Rules of Procedure. The previous versions of the CJ RoP and the GC RoP only required to provide a ‘brief statement of the pleas in law’ in the application. Article 120(c) of the CJ RoP of 2012 and Article 76(d) of GC RoP of 2015, currently in force, specify that the application must contain ‘the pleas in law and arguments relied on and a summary of those pleas in law’. The new wording is much welcomed, as the previous one could be interpreted as suggesting that it was sufficient to provide a mere outline of the pleas in law in the application. While, formally, such an outline could be enough for the application to be admissible, an excessively concise presentation of the pleas might well cause serious handicaps for the applicant. Actually, under the settled case law, no new pleas in law and arguments may be added at the stage of the reply or during the oral part of the procedure, unless they are based on new facts (cf paras 4.227–4.242). Therefore, an excessively brief statement of the pleas in the application would limit the applicant’s ability to present his case efficiently. 32 Case T-89/07 VIP Car Solutions v Parliament [EU:T:2009:163] para 96; Case T-192/08 Kazchrome and ENRC Marketing v Council [EU:T:2011:619] para 212. 33 Order of 10 May 2004 in Joined Cases T-314/03 and T-378/03 Musée Grévin v Commission [EU:T:2004:139] paras 81–85; Joined Cases T-396/05 and T-397/05 ArchiMEDES v Commission [EU:T:2009:184] para 56. 34 Case T-26/00 Lecureur v Commission [EU:T:2001:222] para 38. 35 Order of 26 February 2007 in Case T-205/05 Evropaïki Dynamiki v Commission [EU:T:2007:59] para 57.

4.124

426 Procedure in Direct Actions 4.125

The pleas in law. As a formal requirement, the factual and legal arguments put forward by the applicant have to be structured in pleas in law. The pleas in law must support the heads of claim and be sufficiently clear and precise in order to be admissible. They will be examined one by one by the EU Courts. Pleas in law are the most voluminous and crucial part of the application and are examined in detail in Subsection 4.2.2.4.

4.126

Summary of the pleas in law. Both Rules of Procedure require that the application must also include a summary of the pleas in law relied on. That summary, which must not exceed two pages, is intended to facilitate the drafting of the notice, on each case brought before the EU Courts, which must be published in the Official Journal in accordance with Article 21(4) of the CJ RoP and Article 79 of the GC RoP.36 (v) Information Relating to Service

4.127

Court of Justice. Under Article 121(1)–(2) of the CJ RoP, choosing the service of procedural documents by post is still possible. To that effect, the applicant must state an address for service for the purpose of the proceedings. He must also provide the name of the person who is authorised and has expressed willingness to accept service. The applicant may also state in the application that he accepts telefax or e-Curia as a method of service. This has a bearing on the calculation of time limits (cf para 4.83).

4.128

General Court. As of 1 December 2018, under Article 56a of the GC RoP, all procedural documents must be lodged and served via e-Curia in proceedings before the General Court. Therefore, the applicant no longer needs to provide information relating to service. (vi) Length of the Application

4.129

Maximum length of the application. The maximum length of the application is not specified in the Rules of Procedure; however, the Practice Directions of the Court of Justice (CJ PD) and the GC PR do contain rules in this regard. In direct actions brought before the Court of Justice (mostly infringement actions), the application should not exceed 30 pages, unless there are special circumstances.37 The size limit is higher for applications filed before the General Court, since litigation before the General Court often implies complex factual questions. The GC PR provide in this regard that the volume of application should not exceed 50 pages, except for staff cases brought under Article 270 TFEU, where the maximum length is 30 pages.38

4.130

Exceeding the maximum length. The mere fact that the length of the application exceeds the maximum does not render it inadmissible. Such situations mostly occur in proceedings before the General Court; therefore the GC PR address this issue. They provide that authorisation to exceed the maximum length is given only in cases involving particularly complex legal or factual issues. When the application comprises a number of pages which exceeds the maximum number of pages by 40% or more, it requires regularisation, unless otherwise directed by the President.39 If the length of the application exceeds the maximum length by less than 40%, it may require regularisation, if so directed by the President. Where the applicant is requested to put

36 CJ

PD, para 14; GC PR, para 118. PD, para 13. 38 GC PR, para 105. 39 cf para 1.61. 37 CJ

Application 427 his pleading in order on account of its excessive length, service of the application is delayed.40 In practice, applicants often use the extensive volume of the decision against which they bring an action for annulment as a justification for exceeding the size limit of the application. Lodging too voluminous applications may have disadvantages. First, if regularisation is ordered, service on the defendant is delayed, and so is the examination of the case by the General Court. Also, the analysis of a longer application requires more time from the Judge-Rapporteur and his or her cabinet, which means that the preparation of the preliminary report and all subsequent steps in the procedure will be delayed. Importantly, where the applicant is successful only on certain pleas in law, whilst other pleas are dismissed, the excessive length of the application may cause the General Court to order the applicant to bear a larger part of the costs.41 (vii) Mandatory Annexes Mandatory annexes which depend on the type of action. A copy of the contested act has to be annexed to actions for annulment. Actions for failure to act have to be accompanied by documentary evidence of the date on which an institution (or body) was requested to act.42 Actions brought in civil service matters must be accompanied by the complaint within the meaning of Article 90(2) of the Staff Regulations and the decision responding to the complaint, together with an indication of the dates on which the complaint was submitted and the decision notified.43 Actions brought pursuant to an arbitration clause must be accompanied by the copy of the contract that contains the clause.44

4.131

Proof of the legal person’s existence in law. An application made by a legal person governed by private law must be accompanied by recent proof of that person’s existence in law (extract from the register of companies, firms or associations or any other official document).45 The fact that the applicant participated in the administrative procedure and was treated as a party by an EU institution or body may constitute evidence of existence in law.

4.132

Authorisation to practise. Where the applicant is represented by a lawyer, the certificate of the lawyer’s authorisation to practise in the EEA has to be annexed to the application.46

4.133

Authority to act. If the applicant is a legal person governed by private law, the lawyer must lodge at the Registry an authority to act given by that person.47

4.134

Regularisation. The lack of these mandatory annexes does not immediately render the application inadmissible. The Registrar will order that the application be put in order. If the applicant fails to put the application in order within the prescribed time limit, the EU Courts may dismiss the application as formally inadmissible.48

4.135

40 GC PR, paras 109–111. In this case, the President is the President of the General Court, since, at this stage, the case is not yet assigned to any particular Chamber. See GC RoP, Art 2(b). 41 Case T-566/08 Total Raffinage Marketing v Commission [EU:T:2013:423] para 570. 42 Statute, Art 21. 43 GC RoP, Art 78(2). 44 GC RoP, Art 78(3). 45 GC RoP, Art 78(4). 46 GC RoP, Art 51(2). 47 GC RoP, Art 51(3). 48 CJ RoP, Art 122(3); GC RoP, Art 78(6). The action was dismissed as inadmissible because of the lack of proof of the company’s existence in law in Order of 21 January 2014 in Case T-168/13 EPAW v Commission [EU:T:2014:47] para 18.

428 Procedure in Direct Actions (viii) Other Formal Requirements 4.136

Formatting and structure. The CJ PD and the GC PR contain detailed rules on the formatting and structure of the application.49 The most important rules are that the precise wording of the forms of order sought must be stated either at the beginning or at the end of the application and that the arguments must be grouped into pleas in law, with each plea in law having a separate heading.

4.137

Annexes to the GC PR. As regards proceedings before the General Court, all formal requirements regarding the application are listed in annexes 1–3 of the GC PR, which can be used as a checklist before submitting the application.

4.2.2.2. Clear and Precise Definition of the Subject Matter of the Application 4.138

Essential matters of law and fact must be clearly and precisely stated in the application. Under Article 21 of the Statute, Article 120(c) of the CJ RoP and Article 76(d) of the GC RoP, all applications must contain the subject matter of the proceedings, the pleas in law and the arguments on which the application is based (cf para 4.124). That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary, without any further information. In order to guarantee legal certainty and sound administration of justice, it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself.50 The requirements of clarity and precision also apply to individual heads of claim (cf paras 4.158–4.159), not just to the application as a whole. Under the settled case law, the EU Courts are obliged to reject as inadmissible a head of claim in an application brought before them if the essential matters of law and of fact on which the head of claim is based are not indicated coherently and intelligibly in the application itself. The failure to state such matters in the application cannot be compensated for by putting them forward at the hearing51 or in the reply. Likewise, clarity and precision are required in respect of each plea in law and, in the case of infringement actions, each complaint (cf para 4.178), which are individually examined by the EU Courts regarding whether this criterion is fulfilled. The lack of clarity and precision constitutes an absolute bar to proceeding with a case, which the EU Courts may consider at any time of their own motion52 in respect of the application as a whole, or of separate claims, pleas or arguments. As a result, the application may be dismissed as inadmissible as a whole or in part (as regards the procedural aspects, cf Section 5.7.1. Inadmissibility). (i) Infringement Actions

4.139

Heads of claim and complaints against the Member State must be clearly and precisely formulated. In infringement actions, the complaints formulated against the defendant Member State (specifying which EU law provision is allegedly infringed by which national measure) are closely connected with the heads of claim and also have a role similar to pleas in law. The Court places the heads of claim and the complaints in a single paragraph at the beginning of the judgment (that is, unlike in other direct actions, there is no specific heading in the judgment for 49 CJ PD, paras 39–45; GC PR, paras 112–119. 50 Order of 28 April 1993 in Case T-85/92 De Hoe v Commission [EU:T:1993:39] para 20; Case T-113/96 Dubois et Fils v Council and Commission [EU:T:1998:11] para 29. 51 Case T-43/92 Dunlop Slazenger v Commission [EU:T:1994:79] paras 180–185; Case C-214/05 P Rossi v OHIM [EU:C:2006:494] para 37. 52 Case T-64/89 Automec v Commission [EU:T:1990:42] paras 73–74; Order of 13 December 1996 in Case T-128/96 Lebedef v Commission [EU:T:1996:203] para 25.

Application 429 forms of orders sought).53 Where the heads of claim (including the complaints) as formulated in the application are ambiguous and do not enable the Court to identify clearly and precisely the complaints, that is, the misconduct which the Commission imputes to the Member State, the action is bound to be inadmissible54 (cf paras 2.46–2.47). The fulfilment of the requirements of clarity and precision may be examined by the Court of Justice ex officio in respect of each head of claim and complaint separately. If one of the heads of claim or complaints is found not to comply with those requirements, the Court of Justice dismisses it as inadmissible.55 (ii) Where Annulment is Sought Which types of proceedings? The annulment of a measure adopted by an EU institution or body may be sought in actions for annulment (Article 263 TFEU), actions brought in staff cases containing a claim for annulment (Article 270 TFEU) and intellectual property cases, where the action is directed against a decision of the European Union Intellectual Property Office (EUIPO) or the Community Plant Variety Office (CPVO) (cf para 4.382). The substantive requirements regarding the clarity, precision and content of the application are the same in these actions.

4.140

Clear and precise definition of the contested act. The act or acts the annulment of which is sought must be clearly defined in the application.56 The number of the act (if it is numbered) and the date of its adoption are usually sufficient in order to comply with this requirement. If the act is not numbered, it is advisable to refer to its content and the date of its adoption in order to define it clearly. The EU Courts take into account the specificities of administrative procedure when they decide if the contested act was identified with sufficient clarity.57 In some situations, the applicant may not be able to identify the date of adoption of the decision, as he receives no copy of the decision but merely a letter that reproduces its content. In these cases, it is enough to indicate the date of the letter and to refer to the content of the contested act which is included in the letter. However, excessively broad formulas in a head of claim referring to the request to annul any measure that the contested act is based on, related to or consolidated with will be dismissed as inadmissible as they lack adequate detail regarding the subject matter of the claim.58

4.141

(iii) Where Compensation of Damages is Sought Which types of proceedings? Compensation for damages caused by an EU institution or body may be sought in actions for damages brought under Articles 268 and 340 TFEU, in staff cases foreseen in Article 270 TFEU and in actions brought pursuant to an arbitration clause under Article 272 TFEU. The criteria regarding the sufficiently clear definition of the subject matter of the case are the same in these types of actions.

4.142

Clear and precise definition of the institution’s or body’s conduct, causal link, damage. In order to satisfy the requirement to define the subject matter of the case and to present the pleas in

4.143

53 See, eg Case C-304/15 Commission v United Kingdom (Aberthaw Power Station) [EU:C:2016:706] para 1; Case C-496/09 Commission v Italy (sanctions – aid to promote employment) [EU:C:2011:740] para 1. 54 Case C-195/04 Commission v Finland (public supply contract for catering equipment) [EU:C:2007:248] para 25 et seq. See also Case C-475/07 Commission v Poland (electricity tax) [EU:C:2009:86] para 43 and the case law cited. 55 Case C-412/04 Commission v Italy (public works, supply and service contracts) [EU:C:2008:102] paras 103–107; Case C-524/10 Commission v Portugal (VAT – common flat-rate scheme for farmers) [EU:C:2012:129] para 64–67. In both cases, one of the Commission’s complaints was found to be inadmissible. 56 Order of 4 March 1993 in Case T-72/92 Benzler v Commission [EU:T:1993:27] para 18; Order of 29 November 1993 in Case T-56/92 Koelman v Commission [EU:T:1993:105] para 19. 57 Case T-376/13 Versorgungswerk der Zahnärztekammer Schleswig-Holstein v ECB [EU:T:2015:361] paras 23–24. 58 Case T-166/98 Cantina Sociale di Dolianova and Others v Commission [EU:T:2004:337] para 79.

430 Procedure in Direct Actions law with sufficient clarity and precision, an application seeking compensation for damage caused by an EU institution or body must state the evidence from which the conduct which the applicant alleges against the latter can be identified, the reasons for which the applicant considers that there is a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage.59 If the application is not clear and precise regarding one or several of these three key elements, so as to allow the other party to defend itself and the Court to give a ruling, it will be dismissed as inadmissible.60 4.144

Illustration: Fresh Marine. In the Fresh Marine case, the applicant (a Norwegian company specialised in the sale of salmon) learned that the Commission intended to impose anti-dumping and anti-subsidy measures on imports of farmed Atlantic salmon originating in Norway. In reaction, Fresh Marine made an undertaking by which it committed itself not to offer its products below a minimum price and to report its sales prices to the Commission. Those reports took place, yet the Commission deleted some lines containing negative values which led the Commission to believe that Fresh Marine did not comply with its undertaking. As a result, Fresh Marine was not exempted from the provisional anti-dumping and countervailing duties imposed by the Commission and was forced out of the common market. It brought an action for damages against the Commission, whereupon the latter disputed that the claim on damages was sufficiently pleaded as regards the three key elements of a damages claim (illegal conduct, causal link, damage) under what is now Article 76(d) of the GC RoP. The General Court held, first, that it was sufficiently clear from the application that the conduct for which the Commission was criticised related to its failure to discharge its duties of diligence and of good administration, as well as to an infringement by it of the applicant’s right to a fair hearing, during the procedure to verify whether the applicant had complied with its undertaking. Secondly, it concluded that the causal link was sufficiently explained insofar as the applicant made it clear that, as a result of the application of such provisional measures, it found it impossible to export to the Community between 18 December 1997 and 25 March 1998. Thirdly, the applicant also explained with sufficient clarity that, by reason of that impossibility, it had incurred a loss of profit, estimated at NOK 1,115,000, and costs of re-establishing itself on the common market, estimated at NOK 1,000,000. Therefore, the application was held to be admissible.61

4.145

Unspecified damage leads to inadmissibility. It should be emphasised that a claim for an unspecified form of damage is not sufficiently concrete and is therefore inadmissible.62 The applicant has to substantiate the reality and the certainty of the damage, its nature and extent, and quantify it appropriately, in order to comply with Article 76(d) of the GC RoP.63 In exceptional situations, such as an action brought against the European ombudsman, the General Court has accepted that the precise extent of the damage and its quantification is not an indispensable element of the action. However, in such a situation, a precise reference to the exceptional situation has to be made in the application.64 Exceptional circumstances were held to be present in Arcelor v Parliament 59 Case T-113/96 Dubois et Fils v Council and Commission [EU:T:1998:11] para 30; Order of 11 July 2005 in Case T-294/04 Internationaler Hilfsfonds v Commission [EU:T:2005:280] para 24. 60 Order of 14 December 2005 in Case T-369/03 Arizona Chemical and Others v Commission [EU:T:2005:458] paras 120–125. 61 Case T-178/98 Fresh Marine v Commission [EU:T:2000:240] para 31. 62 Case C-5/71 Zuckerfabrik Schoeppenstedt v Council [EU:C:1971:116] para 9; Joined Cases T-79/96, T-260/97 and T-117/98 Camar and Tico v Commission and Council [EU:T:2000:147] para 181. 63 Case T-19/01 Chiquita Brands and Others v Commission [EU:T:2005:31] paras 68–69; Order of 5 February 2007 in Case T-91/05 Sinara Handel v Council and Commission [EU:T:2007:31] para 109. 64 Case T-412/05 M v European Ombudsman [EU:T:2008:397] para 45. See also Case T-64/89 Automec v Commission [EU:T:1990:42] para 76; Order of 5 February 2007 in Case T-91/05 Sinara Handel v Council and Commission [EU:T:2007:31] para 110.

Application 431 and Council. The damage had a future element, and its extent depended on the action of the Member States transposing the EU directive allegedly causing harm. The General Court held that, in these particular circumstances, the definition of the extent of the damage and its quantification could be done until the reply stage of the procedure, on the condition that the applicant, already in the application, (i) pleaded exceptional circumstances and (ii) provided the information which made it possible to assess the nature and extent of the harm suffered, thereby enabling the defendant to defend itself.65 If the presence of an exceptional situation is not shown, and the extent of the damage is not sufficiently specified or its amount is not quantified, the application will be dismissed as inadmissible.66 The reference to the exceptional situation must be explicit; the General Court has no duty to search the arguments and the annexes submitted by the applicant in order to find a justification for the absence of quantification or quantify the damage itself.67 The nature and the extent of the damage must be outlined even if the applicant only seeks an interlocutory judgment. The applicant may request an interlocutory judgment by reserving the right to quantify the damage at a later stage.68 This possibility cannot absolve the applicant from the observance of the minimum formal requirements laid down in Article 76(d) of the GC RoP. It also follows that the applicant is not only bound to provide the evidence necessary to identify the nature and type of its loss, but must also state the reasons justifying dispensation from the requirement that the application must contain a detailed quantification of the loss claimed.69 In the absence of such a justification, the application is dismissed as inadmissible.

4.146

(iv) Actions for Failure to Act General. In actions for failure to act, the form of order sought may only consist in requesting a declaration of a failure to act; the claim to adopt a positive act is not admissible. The omission to specify that the applicant seeks a declaration of failure to act renders the application inadmissible.70 The application must specify as its grounds one or several failures to act by one or more institutions or bodies. The applicant must comply with the requirements of clarity and precision. In particular, the application must describe in a sufficiently clear and precise manner the measures which the defendant failed to take, so that it makes it possible for the defendant to comply, under Article 266 TFEU, with the judgment allowing the claim.71

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4.2.2.3. Forms of Order Sought (Heads of Claim) (i) Notion and Types of Forms of Order Sought Notion. The form of order sought (head of claim) is a brief statement of what the applicant asks the EU Courts to order or establish in the operative part of the judgment. It must be precisely worded and inserted either at the beginning or at the end of the application.72 The form of order 65 Case T-16/04 Arcelor v Parliament and Council [EU:T:2010:54] para 135. 66 Order of 18 February 2009 in Case T-346/06 IMS v Commission [EU:T:2009:38] paras 35–38. 67 Order of 5 February 1997 in Case T-49/96 H v Commission [EU:T:1997:14] para 26. 68 See, eg Case C-152/88 Sofrimport v Commission [EU:C:1990:259] para 32. 69 Order of 5 February 2007 in Case T-91/05 Sinara Handel v Council and Commission [EU:T:2007:31] para 111; Order of 11 September 2013 in Case T-540/11 Melkveebedrijf Overenk and Others v Commission [EU:T:2013:492] para 17. For a successful justification, see Case T-149/96 Coldiretti v Council and Commission [EU:T:1998:228] paras 48–50. 70 See, eg Order in Case T-292/09 Mugraby v Council and Commission [EU:T:2011:418] paras 47–48; Case T-84/91 Meskens v Parliament [EU:T:1992:43] paras 78–79. 71 Case C-13/83 Parliament v Council (common transport policy) [EU:C:1985:220] paras 35–36. 72 GC PR, para 114.

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432 Procedure in Direct Actions sought contributes to defining the subject matter of the case (cf para 4.120) and it must correspond to the type of action chosen. Order on costs must also be sought explicitly, otherwise costs will not be decided on. Nothing prevents the applicant from combining forms of order related to several types of proceedings that can be combined. In practice, requests regarding the annulment of an act and the compensation of damages are often present in the same application, where the applicant brings, in a single application, an action for annulment and an action for damages. A request to state a failure to act may also be combined with requests for annulment and for damages.73 Illustrations for heads of claim are provided below.74 4.149

Infringement action (Article 258 TFEU). Form of order sought The applicant claims that the Court should: declare that, by failing to correctly apply the Directive 2001/80/EC on the limitation of emissions of certain pollutants into the air from large combustion plants with regard to the Aberthaw Power Station in Wales, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 4(3), read in conjunction with Annex VI, Part A, of Directive 2001/80/EC on the limitation of emissions of certain pollutants into the air from large combustion plants; order the United Kingdom of Great Britain and Northern Ireland to pay the costs.75

4.150

Infringement action in which sanctions are requested (Article 260(2) TFEU). Form of order sought Declare that, by failing to adopt all the measures necessary to comply with the judgment delivered by the Court of Justice of the European Communities on 1 April 2004 in Case C-99/02 concerning the recovery from beneficiaries of aid considered unlawful and incompatible with the common market by Commission Decision 2000/128/EC of 11 May 1999 concerning aid granted by Italy to promote employment, the Italian Republic has failed to fulfil its obligations under that decision and under Article [260(1) TFEU]; Order the Italian Republic to pay to the Commission a daily penalty payment of EUR 285 696 for the delay in implementing the judgment in Case C-99/02 concerning Decision 2000/128/EC, from the date on which judgment is delivered in the present case until the judgment in Case C-99/02 is complied with; Order the Italian Republic to pay to the Commission a lump sum, the amount of which is calculated by multiplying a daily amount of EUR 31 744 by the number of days over which the failure to fulfil obligations continues from the date of delivery of judgment in the present case concerning Decision 2000/128/EC; order the Italian Republic to pay the costs.76

4.151

Action for annulment (Article 263 TFEU). Form of order sought The applicant claims that the [General Court] should: 73 Joined Cases T-189/95, T-39/96 and T-123/96 SGA v Commission [EU:T:1999:317]; Case T-420/05 Vischim v Commission [EU:T:2009:391]. 74 The heads of claim as worded by the parties can be found in the notice of the application, which is published in the Official Journal and on the InfoCuria website. In the final judgment or order, the EU Courts often reword the heads of claim to bring them in line with their standardised language. This cannot, however, change the substantive content of the heads of claim, which is to be defined by the parties. 75 Action brought in Case C-304/15 Commission v United Kingdom (Aberthaw Power Station) [notice in the Official Journal]. 76 Action brought in Case C-496/09 Commission v Italy (sanctions – aid to promote employment) [notice in the Official Journal].

Application 433 annul, in whole or in part, Articles 1, 2, 3 and 4 of the contested decision; order the Commission to pay the costs.77

Action for annulment (Article 263 TFEU) where unlimited jurisdiction regarding finesetting in competition cases applies.

4.152

Form of order sought partially annul the Commission’s decision of 1 October 2008, relating to a proceeding under Article 81 EC (Case COMP/39.181 – Candle waxes); reduce the fine imposed on the applicants by that decision, and order the Commission to pay the costs of the present proceedings.78

Action for failure to act (Article 265 TFEU).

4.153

Form of order sought Declare that the European Commission, by failing to adopt delegated acts to specify scientific criteria for the determination of endocrine-disrupting properties, has infringed Article 5(3) of Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products; Order the Commission to pay the costs of the action.79

Action for damages (Article 268 and 340 TFEU).

4.154

Form of order sought The applicant claims that the Court should: order the [European Union] to pay it the sum of EUR 1 663 734 716.76; such sum to be reduced, if appropriate, by an amount not exceeding EUR 1 663 595.74, depending on the outcome of the applications for taxation of the costs in Cases T-310/01, T-77/02 and T-77/02 R; such sum to be increased by interest accrued since 4 December 2002 until full payment thereof, at the rate of 4% per year; such sum to be increased by the amount of tax for which Schneider will be liable on its receipt; order the Commission to pay all the costs.80

Action for annulment (Article 263 TFEU) directed against several acts, combined with action for damages (Articles 268 and 340 TFEU). Form of order sought … Annulment of Regulation 222/2011 laying down exceptional measures as regards the release of out-of-quota sugar and isoglucose on the Union market at reduced surplus levy during marketing year 2010/2011;

77 Action brought in Case T-369/06 Holland Malt v Commission [notice in the Official Journal]. The ‘contested decision’ was defined earlier in the application as ‘Commission Decision 2007/59/EC of 26 September 2006 concerning the State aid granted by the Netherlands to Holland Malt (OJ 2007 L 32, p. 76)’. 78 Action brought in Case T-540/08 Esso and Others v Commission (candle wax cartel) [notice in the Official Journal]. 79 Action brought in Case T-521/14 Sweden v Commission [notice in the Official Journal]. 80 Action brought in Case T-351/03 Schneider Electric v Commission [notice in the Official Journal].

4.155

434 Procedure in Direct Actions Annulment of Regulation 293/2011 fixing allocation coefficient, rejecting further applications and closing the period for submitting applications for available quantities of out-of-quota sugar to be sold on the Union market at reduced surplus levy; … Condemn the EU as represented by the Commission to repair any damage suffered by the Applicants as a result of the Commission’s breach of its legal obligations and to set the amount of this compensation for the damage suffered by the Applicants during the period 1 October 2009 to 31 March 2011 at 35,485,746 EUR plus any ongoing losses suffered by the Applicants after that date or any other amount reflecting the damage suffered or to be suffered by the Applicants as further established by them in the course of this procedure especially to take due account of future damage; Order an interest at the rate set at the time by the European Central bank for main refinancing operations, plus two percentage points, or any other appropriate rate to be determined by your Court, be paid on the amount payable as from the date of your Court’s judgment until actual payment; Order the Commission to pay all costs and expenses in these proceedings.81

4.156

Action brought in a civil service dispute (Article 270 TFEU) in which both annulment and compensation of damages are requested. Form of order sought The applicant claims that the Court should: … annul the decision of the CSO, adopted on 29 February 2016 under the authority of the management board and notified to staff on 11 March 2016, to exclude the applicant from the ASI exercise for the year 2016; annul the decision rejecting the special appeal dated 5 July 2016 and received on 13 July 2016; order the payment of compensation for the non-material damage sustained by the applicant consisting in the loss of a chance of obtaining an ASI in 2016 evaluated at EUR 49 102; order the payment of compensation for non-material damage assessed on an ex aequo et bono basis at EUR 15 000; order the defendant to pay all the costs.82

4.157

Action brought pursuant to an arbitration clause (Article 272 TFEU). Form of order sought The applicant claims that the Court should: order the European Commission to pay it the following amounts: financial costs generated by the late release of supply securities: EUR 7 691.60 including tax; default interest to run from the due date of the transport invoices to the time of their effective payment: EUR 81 817.25 excluding tax and USD 6 344.17; … order the European Commission to pay the costs.83

81 Action 82 Action 83 Action

brought in Case T-279/11 T&L Sugars and Sidul Açúcares v Commission [notice in the Official Journal]. brought in Case T-677/16 Bowles v ECB [notice in the Official Journal]. brought in Case T-164/14 Calberson GE v Commission [notice in the Official Journal].

Application 435 (ii) The Forms of Order Sought must be Clear and Precise Unclear or imprecise heads of claim are inadmissible. The general requirement regarding the clarity and precision of the application (cf para 4.138) must also be satisfied in the context of the forms of order sought. While much of the case law concerns the clarity and precision of the application as a whole (cf paras 4.138–4.146), there are many precedents that concern the failure to fulfil these requirements in respect of a single head of claim, mostly in the context of actions for annulment. If the application, as a whole, satisfies these substantive requirements, but a single head of claim does not, only that head of claim will be dismissed as inadmissible, while the EU Courts will examine the merits of the case with regard to the rest of the forms of order sought (if other conditions of admissibility are fulfilled).

4.158

‘To annul any subsequent or related measures’ is an inadmissible request. In the context of actions for annulment, the request to annul unspecified or insufficiently described measures that might have been adopted by the defendant institution or body in the context of the contested act does not comply with the requirements of clarity and precision. They breach Article 21 of the Statute and Article 76(e) of the GC RoP, which require that all applications must contain the subject matter of the proceedings, the pleas in law and arguments on which the application is based, and that that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application (cf para 4.138). The EU Courts examine each head of claim and each separate part of the same head of claim individually to ensure compliance with the above rules. For instance, heads of claim in which the applicants requested the annulment of the contested decisions and ‘all the measures adopted subsequently’84 or ‘all further related decisions’85 were rejected as inadmissible insofar as they concerned those insufficiently described subsequent or related measures and the merit of the applications was only examined in respect of the request to annul the clearly identified contested acts.86

4.159

(iii) No New Head of Claim After the Application The application must contain all the forms of order sought in their definitive form. It is crucial to place all the heads of claim in the application in their definitive form, since, as a rule, at later stages of the procedure, the applicant does not have the possibility to add new forms of order or to alter the initial ones. This is a consequence of the rules set out in Article 120(d) of the CJ RoP and Article 76(e) of the GC RoP, under which the form of order sought is part of the mandatory content of the application. The EU Courts are strict in this regard. Under the settled case law, ‘only the form of order set out in the originating application may be taken into consideration and the substance of the application must be examined solely with reference to the order sought in the application instituting the proceedings’.87 New heads of claim may not be stated in the reply88 or in the observations to the plea of inadmissibility,89 let alone at the hearing,90 in reaction to the defendant’s arguments. As a general rule, it is only possible to amend forms of order sought if the amendment is based on matters of law or of fact which came to light in the course of the 84 Case T-415/10 Nexans France v European Joint Undertaking for ITER [EU:T:2013:141] paras 48–50. 85 Case T-447/10 Evropaïki Dynamiki v Court of Justice [EU:T:2012:553] para 27. 86 See also Case T-652/11 Sabbagh v Council [EU:T:2015:112] para 27. 87 Case C-83/63 Krawczynski v Commission [EU:C:1965:70] para 2; Case C-232/78 Commission v France (mutton and lamb) [EU:C:1979:215] para 3; Case T-236/07 Germany v Commission (EAGGF 2006) [EU:T:2010:451] para 27. 88 Case T-22/92 Weißenfels v Parliament [EU:T:1993:90] paras 27, 29 and 35. 89 Order of 17 May 2006 in Case T-271/03 Marcuccio v Commission [EU:T:2006:129] paras 52–53. 90 Joined Cases T-589/14 and T-772/14 Musso v Parliament [EU:T:2016:101] paras 30–33.

4.160

436 Procedure in Direct Actions rocedure. In the absence of such matters, only the order sought in the application may be taken p into consideration.91 Exceptions to these main rules are discussed below. (iv) Adaptation of the Application When the Contested Act was Replaced or Amended 4.161

An exception from the general rule was codified by the new GC RoP. The GC RoP of 2015 codified pre-existing case law regarding a particular issue that may arise in the context of actions for annulment, mainly in the field of restrictive measures adopted by the Council when exercising its powers relating to the Common Foreign and Security Policy.92 While the general rule is that the application has to contain the heads of claim in their definitive form and that it constitutes a rigid framework of the litigation (cf para 4.160), an exception is allowed where the institution or body replaces or amends the contested act after the lodging of the application. In such a situation, the applicant is authorised to change the heads of claim and the pleas in law at later stages of the Court procedure.93 In practice, such requests to adapt the application mainly target a modification of the forms of order sought; therefore, they are discussed in the present section.

4.162

Pre-existing case law on the adaptation of the application. The EU Courts had been faced with the situation of an institution or body changing or replacing the contested act during the Court procedure long before the adoption of the GC RoP of 2015. In Alpha Steel, the Commission repealed the contested decision after the action for annulment had been lodged and replaced it with another one having the same subject matter. The Court of Justice considered that such a replacement of the contested act was a new factor which allowed the applicant to amend its pleadings, and the Commission could not validly argue that a fresh application targeting the new decision was needed.94 Arguably, such a need could have created a loophole through which institutions could have made the access to judicial review more burdensome for natural or legal persons seeking justice. In Lenzing, the case law allowing the applicant to amend the forms of order sought and the pleas in law after the filing of the application was extended to situations where the defendant institution modified the contested act during the Court procedure.95 Requests to amend forms of order sought and pleas in law became more frequent when the General Court started receiving actions for annulment directed against Council decisions adopted in the framework of the Common Foreign and Security Policy ordering restrictive measures – in particular, fund-freezing – against natural persons and entities which were held liable for supporting terrorism, for nuclear proliferation or for jeopardising international stability. These decisions are indeed often replaced, renewed or amended during the Court procedure. Case law in this regard took shape inter alia in People’s Mojahedin Organization of Iran96 and Melli Bank, and contains the following considerations: when a decision or a regulation of direct and individual concern to an individual is replaced, during the proceedings, by another measure with the same subject matter, this is to be considered a new factor allowing the applicant to adapt its claims and pleas in law. It would be contrary to the principle of due administration of justice and to the requirements of procedural economy to oblige the applicant to make a fresh application. Moreover, it would be inequitable if the institution in question were able, in order 91 Case T-236/07 Germany v Commission (EAGGF 2006) [EU:T:2010:451] para 28; Case T-73/08 Berliner Institut v Commission [EU:T:2013:433] paras 42–43. 92 K Andová and E von Bardeleben, ‘La refonte du règlement de procedure du Tribunal de l’Union européenne: pour une efficacité juridictionnelle renforcée’ (2015/7) Europe étude 6, para 31. 93 GC RoP, Art 86. 94 Case C-14/81 Alpha Steel v Commission [EU:C:1982:76] para 8. 95 Case T-36/99 Lenzing v Commission [EU:T:2004:312] para 54. 96 Case T-256/07 People’s Mojahedin Organization of Iran v Council [EU:T:2008:461] para 46.

Application 437 to counter criticisms of a measure contained in an application to the Courts of the European Union, to amend the contested measure or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending his original pleadings to the later measure or of submitting supplementary pleadings directed against it.97

However, many questions – such as, importantly, the timing and the formal requirements of submitting a request to amend the heads of claim – remained open. These were finally settled in the GC RoP of 2015, which also codifies the above case law.98 Main rules on the modification of the application. Article 86 of the GC RoP contains the new rules that govern the conditions and the formal requirements regarding the adaptation of the heads of claim, and other parts of the application, in case the contested decision is replaced or amended after the filing of the action for annulment. Article 86(1)–(2) of the GC RoP provides as follows:

4.163

1. Where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed, or before the decision of the General Court to rule without an oral part of the procedure, modify the application to take account of that new factor. 2. The modification of the application must be made by a separate document within the time limit laid down in the sixth paragraph of Article 263 TFEU within which the annulment of the measure justifying the modification of the application may be sought.

Timing. The request to adapt the application is thus subjected to a double time limit. It has to be made before the closure of the oral part of the procedure (or before the decision to rule without a hearing) and within two months and 10 days (cf para 4.87) counted from the publication of the measure replacing or amending the contested act or of its notification to the applicant, or, in the absence thereof, of the day on which it came to the knowledge of the latter.

4.164

The adaptation of the application must be done in a separate document. It should be emphasised that the adaptation of the heads of claim (or the pleas in law) must be done in a separate document filed with the Registry, and not in the reply or at the hearing, which were the occasions preferred by the applicants to make such requests before the adoption of the GC RoP of 2015. These rules are applied strictly. For instance, in HX v Council, the applicant attempted to change the heads of claim in an oral statement made at the hearing. The General Court dismissed this request to adapt the application as inadmissible by referring to the absence of a separate document required under Article 86(2) of the GC RoP.99

4.165

Content and annexes. The content and annexes of the statement of modification of the application reflect, mutatis mutandis, the rules laid down in Article 76 of the GC RoP (cf para 4.108) and in Article 21 of the Statute. The statement of modification must contain: (i) the modified form of order sought; (ii) where appropriate, the modified pleas in law and arguments; and (iii) where appropriate, the evidence produced and offered in connection with the modification of the form

4.166

97 Case T-492/10 Melli Bank v Council [EU:T:2013:80] para 42. See also, in the field of public access to documents, Case T-341/07 Sison v Council [EU:T:2011:687] para 49; Case T-214/11 ClientEarth and PAN Europe v EFSA [EU:T:2013:483] paras 32–33. In the field of cartels, see Case T-76/08 EI du Pont de Nemours and Others v Commission [EU:T:2012:46] paras 33–34. 98 See K Andová and E von Bardeleben, ‘La refonte du règlement de procedure du Tribunal de l’Union européenne: pour une efficacité juridictionnelle renforcée’ (2015/7) Europe étude 6, para 30. 99 Case T-723/14 HX v Council [EU:T:2016:332] paras 28–29.

438 Procedure in Direct Actions of order sought.100 The new measure justifying the modification of the application must be annexed to the statement.101 4.167

Adversarial principle. One of the key reasons why, as a rule, the application must contain the definitive forms of order sought and the pleas in law in a clear and precise manner is to allow the other party to prepare its defence (cf para 4.138). The adversarial principle and the other party’s rights of the defence must also be safeguarded in the context of a modification of the application. To that effect, the GC RoP provides that, without prejudice to the decision to be taken by the General Court on the admissibility of the statement modifying the application, the President102 prescribes time limits within which the defendant may respond to the statement of modification and, subsequently, if applicable, the interveners may supplement their statements in intervention.103

4.168

Admissibility is examined on the basis of the initial application. The admissibility of the application with regard, inter alia, to the presence of a reviewable act (action for annulment), to the legal interest of the natural or legal persons to bring proceedings and to their standing, and to compliance with the requirements of clarity and precision, must be appraised on the basis of the original content of the application and the situation as at the moment of lodging the application. The General Court held, in the context of an action for annulment, that the adaptation of the application could only be authorised if the initial application could be held admissible at the moment of its filing.104 (v) Request to Annul the Contested Act in Part or Only in Respect of the Applicant

4.169

Partial annulment. In many cases, the applicant only seeks the partial annulment of a measure. In these situations, he must define clearly and precisely the provisions of a generally applicable act the annulment of which is sought. The EU Courts will examine if those provisions are severable from the rest of the act. The requirement of severability is not met where partial annulment of a measure would have the effect of changing its substance.105 The head of claim to annul a nonseverable part of the measure is inadmissible (cf para 3.318).106 It must also be emphasised that the request of annulment must be directed against a provision of a generally applicable act or a section of the operative part of an individual decision. The assessments made in the recitals are not in themselves capable of forming the subject of an action for annulment. They can be subject to judicial review only to the extent that they produce binding legal effects because they constitute the essential basis for the operative part of the contested act.107 A request of partial annulment that merely concerns a section in the assessment that has no binding legal effect will be dismissed as inadmissible (cf para 3.35).

100 GC RoP, Art 86(4). 101 GC RoP, Art 86(5). 102 cf para 1.61. 103 GC RoP, Art 86(6)–(7). 104 Order of 11 March 2016 in Case T-436/15 Consorzio Vivaisti viticoli pugliesi and Negro Daniele v Commission [EU:T:2016:147] para 17. 105 Case C-29/99 Commission v Council [EU:C:2002:734] paras 45–46; Case C-239/01 Germany v Commission (EAGGF) [EU:C:2003:514] paras 33–34; Case C-540/03 Parliament v Council (family reunification) [EU:C:2006:429] paras 27–28 and 108; Case C-441/11 P Commission v Verhuizingen Coppens (Belgian removal services cartel) [EU:C:2012:778] paras 38 et seq. 106 Case T-31/07 Du Pont de Nemours (France) and Others v Commission [EU:T:2013:167] paras 83–88. 107 Case C-164/02 Netherlands v Commission (Aid for the processing of dredging silt) [EU:C:2004:54] para 21.

Application 439 Bundles of individual decisions and normative acts. When the applicant brings an action for annulment against a bundle of individual decisions (such as a cartel decision addressed to several companies) or against acts of general application (for instance, an anti-dumping regulation which is a regulatory act), he may specify in the form of order sought that he only requests the annulment of the contested measure insofar as he is concerned. If the head of claim contains no such restriction, the General Court may limit it of its own motion, given that the action is only admissible insofar as the applicant has legal interest and standing to seek review (cf paras 3.328–3.329).108

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(vi) Inadmissible Forms of Order Sought Claims to make declarations are inadmissible. The powers of the EU Courts are exhaustively listed in the TFEU. Therefore, applicants may only seek forms of order which comply with one of the actions listed therein. In particular, no statement or declaration can be validly requested from the EU Courts regarding a legal109 or factual110 situation, or breach of law,111 without prejudice to the finding that a Member State failed to fulfil its obligations under the Treaties under Articles 258–260 TFEU (infringement actions) or that an institution or body failed to act under Article 265 TFEU (actions for failure to act). The request that the Court should take formal note in an annulment case that the applicant reserves the right to bring an action for damages against the defendant was also considered to be inadmissible.112

4.171

Requests for Court orders or injunctions are inadmissible. Under the settled case law, in an action for annulment, the jurisdiction of the EU Courts is limited to reviewing the legality of the contested act. If the action is well founded, the EU Courts declare the act to be void. Under Article 266 TFEU, it is incumbent on the institution or body whose act has been declared void, and not on the EU Courts, to take the necessary measures to comply with the judgment. It follows that the claims that the EU Courts should make certain findings of a general nature and issue a direction to the defendant are inadmissible in the context of an action for annulment.113 Parallel case law exists in the field of intellectual property,114 which is also characterised by the fact that the action concerns the annulment of an act, with the difference that altering the act may also be requested (cf paras 3.553–3.554).

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(vii) Costs A general claim regarding costs must be in the application. Under Article 138 of the CJ RoP and Article 134 of the GC RoP, the ‘unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings’. It follows that the applicant has to request an order regarding the costs in the application in order to claim the costs in case he wins

108 See Case T-172/09 Gem-Year and Jinn-Well v Council [EU:T:2012:532] paras 24–26, where the General Court limited the scope of the head of claim regarding annulment to ‘a partial annulment of the contested regulation, insofar as it imposes a definitive anti-dumping duty on the applicants’. The same happened in Case T-143/06 MTZ Polyfilms v Council [EU:T:2009:441] paras 27–28. 109 Order of 9 December 2003 in Case C-224/03 Italy v Commission [EU:C:2003:658] paras 20–22. 110 Case T-114/92 BEMIM v Commission [EU:T:1995:11] paras 31–34. 111 Case T-358/94 Air France v Commission [EU:T:1996:194] para 32. 112 Case T-62/99 Sodima v Commission [EU:T:2001:53] paras 27–28. 113 Case T-114/92 BEMIM v Commission [EU:T:1995:11] paras 33–34. 114 Case T-443/05 El Corte Inglés v OHIM – Bolaños Sabri (PiraÑAM diseño original Juan Bolaños) [EU:T:2007:219] para 20.

4.173

440 Procedure in Direct Actions the case, otherwise the EU Courts will not rule on them and the applicant will have to bear his own costs. A general claim is sufficient. Costs do not need to be quantified in the application; indeed, a request for the payment of a specific sum has already been dismissed as inadmissible (see, in more detail, Chapter 5.10. Costs and Legal Aid).115

4.2.2.4. Pleas in Law and Arguments (i) General 4.174

Concept. Article 120(c) of the CJ RoP and Article 76(d) of the GC RoP provide that ‘the application … shall state … the pleas in law and arguments relied on and a summary of those pleas in law’. Naturally, pleas in law put forward by the applicant aim to show the illegality of the defendant’s act or conduct. They are constituted by a legal or factual proposition that the applicant wants the EU Courts to accept in respect of a certain aspect of the dispute and the demonstration underpinning that proposition. In simple and practical terms, the pleas in law are legal and/or factual arguments related to the same issue, which are grouped under the same heading. They must be in line with the type of action chosen116 and support the forms of order sought, and must therefore be logically linked with them. Pleas which are irrelevant from the point of view of the type of action or the forms of order sought will be dismissed as inadmissible. The requirements of clarity and precision apply to pleas in law and arguments. If they are unclear or imprecise, they will be dismissed as inadmissible (cf para 4.178).

4.175

The pleas in law put forward in the application set a rigid framework for the litigation. Importantly, it follows from Article 120(c) of the CJ RoP and Article 76(d) of the GC RoP that the application must contain all the pleas in law. Additional pleas in law may only be raised in a complementary memorandum to the application if such a document is filed within the initial deadline open for bringing proceedings.117 In contrast, pleas submitted at later stages of the procedure (in the reply or at the hearing) will be dismissed as inadmissible unless they are based on matters of law or of fact that emerged during the procedure before the EU Courts118 or are a matter of public policy, such as the plea based on insufficient reasoning, which can be raised at any time. New arguments may only be added to the original pleas in law at later stages of the procedure if they satisfy the test related to ‘expounding pleas in law’ as developed in the case law of the EU Courts, or if they are based on new facts or are a matter of public policy. The applicant is therefore not allowed to raise new arguments at will in reaction to the arguments set out in the defence; his arguments put forward in the reply must fit into the framework of the original pleas in law as defined in the application. These rules may not be circumvented by reformulating or recategorising the initial pleas at later stages of the procedure, such retrospective modifications of the ambit of the initial pleas in law being inadmissible.119 These issues are addressed in more detail in Subsection 4.2.4.2. New Pleas in Law in the Reply or Later and para 4.334 as regards the hearing. 115 Case T-416/12 HP Health Clubs Iberia v OHMI – Shiseido (ZENSATIONS) [EU:T:2014:104] para 21. 116 Order of 21 April 2016 in Case T-539/13 Inclusion Alliance for Europe v Commission [EU:T:2016:235] paras 90–93. 117 Case T-338/08 Stichting Natuur en Milieu and Pesticide Action Network Europe v Commission [EU:T:2012:300] para 18. 118 GC RoP, Art 84. The situation where the contested act is replaced or amended during the proceedings before the General Court is regulated separately in Art 86 of the GC RoP (cf paras 4.163–4.165). In such a case, the applicant is authorised to adapt the heads of claim and the pleas in law after the application, at later stages of the Court procedure, but only within the two months plus 10 days time limit that is open for challenging the replacement act or the amending act. The adaptation of the original pleading must be done by a separate document, not in the reply or at the hearing. 119 Case T-362/10 Vtesse Networks v Commission [EU:T:2014:928] paras 76–79.

Application 441 Pleas in law and assessment by the EU Courts. The EU Courts examine the application by assessing each plea in law separately. They accept or dismiss each plea.120 They do not combine arguments scattered in various pleas and construe them in the applicant’s favour (cf paras 4.190 and 4.194). It is true, however, that the same factual and legal argumentation put forward by the applicant can be used to show several breaches of law121 (cf para 4.194). If the applicant pursues such a goal, arguments that support several propositions placed in several pleas in law should be mentioned in a general part of the application, or, if mentioned in the context of one of the pleas, should be properly referred to in the rest of the pleas to which they are relevant. It is important to note that the EU Courts do not do the work of the lawyers; rather, they will only examine the case by assessing the pleas in law put forward by the applicant, apart from the very limited circle of pleas that the EU Courts may raise of their own motion – such as the infringement of the duty to state reasons or the lack of competence of the defendant institution or body to adopt the contested act. Therefore, once the EU Courts have exhausted the application by rejecting each plea in law, the outcome of the case is that the whole application is rejected. In the context of an action for annulment, it is irrelevant that the contested act was indeed found to be flawed and annulled in respect of another applicant who raised a plea in law that demonstrated an illegality justifying annulment. If that successful plea or argument raised by another party in another parallel case targeting the same or a similar act was not present in the application, it is perfectly legitimate for the EU Courts to reject the application as unfounded. The role of the applicant’s lawyers is thus paramount: if they do not find the weak spot in the contested act, it will remain valid and applicable as regards the applicant, even if it is annulled in respect of other applicants who challenged the same act successfully (cf paras 3.328 and 3.329; for an exception, cf para 4.193).

4.176

Requalification and interpretation of the pleas by the EU Courts. The EU Courts are not bound by the title of the plea in law as defined in the application. Indeed, applicants often give a title to the plea by concentrating on one illegality they strive to demonstrate (for instance, the breach of Article 101 TFEU), whereas in the text under the heading they also raise arguments that tend to demonstrate a breach of some other rules, for instance, the respect of the rights of the defence or fundamental rights laid down in the Charter of Fundamental Rights. The EU Courts have held that the applicant’s pleas must be interpreted in terms of their substance rather than their classification122 as shown in the title of the plea. Therefore, the Courts may either change or adjust the title of the plea in order to reflect all of its content, or indicate in the judgment that, in spite of the overly restrictive title of the plea, they still examine the applicant’s arguments in their full extent. Nonetheless, in some cases, the titles of pleas in law and other headings in the application played a substantial role when the Courts determined the ambit of the relevant plea and resulted in the limitation of the examination by the Courts123 (cf para 3.264).

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120 Unless, of course, where the acceptance of one or several pleas in law is sufficient for deciding in favour of the applicant, since, for instance, such acceptance justifies the annulment of the contested act in an action for annulment. In these situations, the rest of the pleas in law will not be examined. Annulment judgments are, therefore, usually shorter than judgments which dismiss the action as unfounded. 121 Case T-5/97 Industrie des poudres sphériques v Commission [EU:T:2000:278] paras 191–195. 122 Joined Cases C-19/60, C-21/60, C-2/61 and C-3/61 Fives Lille Cail and Others v High Authority [EU:C:1961:30]; Case T-444/11 Gold East Paper and Gold Huasheng Paper v Council [EU:T:2014:773] paras 39–40. 123 Case T-349/03 Corsica Ferries v Commission [EU:T:2005:221] paras 58–61; Joined Cases T-305/94 to T-307/94, T-313/94 to T-315/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission (PVC cartel) [EU:T:1999:80] para 389.

442 Procedure in Direct Actions (ii) The Pleas in Law must be Clear and Precise 4.178

Unclear or imprecise pleas in law are inadmissible. Pursuant to Article 21 of the Statute, Article 120(c) of the CJ RoP and Article 76(d) of the GC RoP, the application initiating proceedings must state the pleas in law and arguments on which the application is based. Under the settled case law, that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information (cf para 4.138). The application must, accordingly, specify the nature of the grounds on which it is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure and such a defect justifies the dismissal of the plea as inadmissible.124 In order to ensure legal certainty and the sound administration of justice, it is necessary that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself;125 subsequent explanations in the reply or at the hearing cannot correct the initial defect, since that does not allow the defendant to prepare its defence.126 The mere allegation of a breach of a given provision of EU law without any demonstration of the breach is an inadmissible plea in law.127 The same goes for the situations where the demonstration regarding the infringement of an EU law provision is not understandable in the application. The applicant may not validly explain what that infringement consisted of at later stages of the procedure.128 The lack of clarity and precision of a plea in law is a matter of public policy that the EU Courts may raise of their own motion,129 without the need for the other party to point it out. Similar principles apply to pleas in law submitted in an appeal procedure.130

4.179

Subdivisions of pleas in law and arguments. The requirements of clarity and precision apply to subdivisions of pleas in law (called ‘branche de moyen’ or ‘grief’ in French)131 and to particular arguments put forward in the framework of a plea in law.132 If only a part of the plea in law or an argument lacks clarity or precision, only that part will be dismissed as inadmissible.

4.180

Specifying the rule of law whose infringement is alleged. Ideally, the EU law provision that is allegedly breached must be indicated prominently in the plea in law or in its subdivision, preferably in the heading as well, and in the starting lines following the heading. It is also important to specify that provision in the summary of the pleas in law. In some cases, the EU Courts have shown flexibility as regards the precise indication of the rule of law allegedly breached. It has occasionally been held that the requirements of clarity and precision are satisfied if the rule in question, albeit not indicated expressis verbis, is nonetheless clearly identifiable by both the defendant and the Courts upon reading the legal arguments of the applicant.133 From a practical 124 Case T-102/92 Viho v Commission [EU:T:1995:3] para 68; Case T-352/94 Mo och Domsjö v Commission [EU:T:1998:103] para 333; Case T-224/10 Association belge des consommateurs test-achats v Commission [EU:T:2011:588] para 71; Case T-347/06 Nynäs Petroleum and Nynas Belgium v Commission [EU:T:2012:480] para 87. 125 Case T-154/98 Asia Motor France and Others v Commission [EU:T:2000:243] para 49. 126 Order of 19 May 2008 in Case T-144/04 TF1 v Commission [EU:T:2008:155] para 30. 127 Case T-444/11 Gold East Paper and Gold Huasheng Paper v Council [EU:T:2014:773] para 93. 128 Case T-267/06 Italy v Commission (EAGGF) [EU:T:2012:69] paras 90–93. 129 Case T-267/06 Italy v Commission (EAGGF) [EU:T:2012:69] para 93. 130 Case C-401/09 P Evropaïki Dynamiki v ECB [EU:C:2011:370] para 61. 131 ‘Grief’ is translated into English as ‘claim’. It is a compact part of the applicant’s argumentation related to a given issue. It should not be confused with ‘head of claim’ (chef de conclusion), which is a synonym of ‘form of order sought’. 132 Case T-430/08 Grain Millers v OHMI – Grain Millers (GRAIN MILLERS) [EU:T:2010:304] para 38; Order of 13 January 2015 in Case T-535/13 Vakoma v OHIM – VACOM (VAKOMA) [EU:T:2015:24] para 17. 133 Case T-279/03 Galileo v Commission [EU:T:2006:121] para 41; Case T-323/10 Chabou v OHMI – Chalou (CHABOU) [EU:T:2011:678] paras 13–19; Case T-224/11 Caventa v OHIM – Anson’s Herrenhaus (BERG) [EU:T:2013:81] paras 13–17. All three cases are from the field of intellectual property; it is therefore unclear if the EU Courts would apply this case law in other fields.

Application 443 viewpoint, however, it is not at all advisable to test the Courts’ tolerance in this respect. When the rule of law allegedly breached is not clearly indicated, the Courts may simply dismiss the plea in law or the argument as inadmissible by referring to the settled case law on clarity and precision (cf para 4.178), without contemplating the applicant’s arguments any further.134 Error of fact or assessment is understood as referring to a breach of law. In the context of actions for annulment, applicants often give titles to pleas in law by simply referring to an error of fact, error of assessment or manifest error of assessment allegedly committed by the defendant as regards a particular step in its analysis. This practice is allowed, despite the fact that A rticle 263(2) TFEU does not list such errors as a ground for review. Such pleas in law are understood as referring to the infringement of the EU law provision that requires the establishment of the facts and the relevant assessment. For instance, if the applicant refers in its pleadings to errors of assessment allegedly committed by the Commission when examining the presence of a dominant position in an antitrust case, those pleas in law will be understood as relating to the infringement of Article 102 TFEU, since that article could not be legitimately applied by the Commission if its appraisal regarding the existence of a dominant position was flawed.

4.181

(iii) How to Construct Pleas in Law? Structure. A simple and efficient method of drafting pleas in law, or subdivisions thereof, is to follow the standard structure applied by the General Court in its judgments as regards the analysis of a given plea. In actions for annulment, this involves the following steps: –– Summing up the essence of the plea in law in a single paragraph by identifying the illegal aspects of the institution’s or body’s findings in the contested act and the legal provision breached; –– Indicating the content of the legal provision in question (this can be done by a reference to that provision, especially if the application would otherwise exceed 50 pages); –– Providing the framework case law generally quoted by the EU Courts when they interpret the provision in question (to save space, this can also be done by simply referring to the relevant sections of key precedents); –– Presenting in detail the criticised findings made in the contested act; –– Putting forward detailed arguments showing that those findings constitute an error of fact, law or assessment, or are in breach of EU law provisions (including guidelines and principles) in any other way; in this part, ideally, more specific case law which is closer to the facts of the case in hand or could be applied to them by analogy should be cited to support the applicant’s assertion; –– If needed, providing a demonstration on how the error made by the institution or body affects the legality of the contested act, since only an illegality that vitiates the operative part of the contested act may justify annulment (cf para 3.331).

134 See, eg Case T-224/95 Tremblay and Others v Commission [EU:T:1997:187] paras 79–82; Case T-49/09 Evropaïki Dynamiki v Commission [EU:T:2012:186] paras 90–92; Case T-370/11 Poland v Commission (greenhouse gas emission allowances) [EU:T:2013:113] para 113.

4.182

444 Procedure in Direct Actions 4.183

Case law and practical recommendations. Case law and practical recommendations as regards drafting the application and, in general, brief-writing may be grouped around five main ideas:135 written pleadings should be (A)ccurate, (B)rief, (C)lear, (D)ocumented and (E)laborate.

4.184

(A)ccuracy – proper use of terminology and precise references. It is advised to use (where possible, exclusively) the terms of art applied in EU legislation in the contested act, and in the case law, by giving proper references to the relevant sections of those documents that are the sources of the terms. It should be borne in mind that the internal working language of the EU Courts is French, and Judges and référendaires will mostly use the French translation of the pleading to examine the case. Accurate use of terms of art and precise references allow the lawyer-linguists translating the pleading to find the corresponding French term in the source document easily. This drafting method ensures that the translated version of the pleading is as clear and accurate as the original version of the brief filed in the language of the case.

4.185

Quotations. It is recommended to avoid constructing arguments by providing a selective quote from the contested act, case law or annexes where the omission of certain words entirely changes or even reverses the meaning of the quoted section. The référendaire drafting the preliminary report will always look up all quoted sections in the source document; it is a key policy element of the EU Courts to allow enough time for a thorough analysis of the file. Purposefully selective or misconstrued quotations may convince the Courts of the weakness of the party’s arguments. It is therefore advised to quote sections fairly, and to explain why the elements in the quote not in line with the party’s reasoning should be found flawed or irrelevant.

4.186

(B)revity. The GC PR provide that the volume of the application should not exceed 50 pages in cases other than staff litigation.136 However, keeping the size of the application well under this volume limit may bring the advantage that the General Court deals with the case swiftly and delivers the judgment within the shortest time frame.137 The brevity of the application may also play a positive role when the applicant wins the case only in respect of certain pleas in law, since a larger part of the costs may be ordered to be paid by the unsuccessful defendant in the case of a short application.138

4.187

(C)larity – the role of translation. The requirement of clarity must be complied with in respect of the application as a whole and in respect of each plea in law and argument, as foreseen in the case law (cf paras 4.138 and 4.178). It is worthwhile to be as clear and concise as possible beyond what is formally required by this case law. It must be recalled that briefs will be translated into French and assessed in French. Therefore, short sentences are recommended. Long and complex sentences may carry uncertainties regarding the logical connections among their numerous sections, especially after translation. The use of synonyms is not recommended, unless it is made clear that they mean the same thing. Otherwise there is a risk that the two terms are rendered by two French words which are not synonyms. Moreover, where economic or technical terms of art are used, or reference is made to specific legal terms that only exist in a national legal system, it is advised to describe their meaning. Finally, it should be borne in mind that if a statement made 135 For the ‘ABCD principle’, see M Barennes and P Hecker, ‘Strategic and efficient brief writing before the General Court of the European Union: Practical suggestions regarding the application and the reply in competition law cases’ (2012) Concurrences 4–2012, p. 2. 136 GC PR, para 105. 137 M Barennes and P Hecker ‘Strategic and efficient brief writing before the General Court of the European Union: practical suggestions regarding the application and the reply in competition law cases’ (2012) Concurrences 4–2012, p. 5. 138 See, eg Case T-540/08 Esso and Others v Commission (candle wax cartel) [EU:T:2014:630] para 140; Case T-566/08 Total Raffinage Marketing v Commission (candle wax cartel) [EU:T:2013:423] para 570.

Application 445 by the party is deliberately vested with a double meaning, there is a fair chance that one of those meanings will disappear in translation. Are contradictory statements allowed? In general, it is advised to ensure the coherence of the pleadings. The pleadings are examined thoroughly, and the EU Courts will certainly notice when the applicant makes conflicting statements in the context of two different pleas in law. An incoherent brief entails the risk that the Court hearing the case may use one of the statements to refute the other, by finding that the party himself disagreed with his own argument in another section of his pleading. The same goes for statements in the application which are incoherent with those in the reply or with those made by the applicant during the administrative procedure. An even worse outcome of making conflicting statements is that the Courts dismiss the entire reasoning, in all the contexts where it is used, as unclear or imprecise (cf paras 4.138 and 4.178)139 because of a lack of coherence. On the other hand, it is certainly allowed to make subsidiary claims or allegations for the case where the party’s primary assertion is rejected by the EU Courts. For instance, nothing prevents the applicant challenging a cartel decision from asserting, primarily, that its conduct did not infringe competition law rules and from making a subsidiary allegation that, even if the Court considered that it did, the duration of the infringement was nonetheless shorter than what the Commission found in the contested decision.

4.188

(D)ocumented pleadings – factual statements and annexes. In general, there are three situations where the General Court accepts a factual assertion made by the applicant and establishes it as a fact. First, where it is supported by the contested decision. Secondly, the General Court also tends to accept common factual allegations made by both parties. These may be inserted into the section ‘Facts’ or ‘Facts giving rise to the dispute’ of the report for the hearing (cf para 4.265) and will become part of the set of facts as established by the General Court in the judgment if none of the parties question their veracity at the hearing (cf para 4.328). Thirdly, in all other situations, the applicant must show facts by relying on evidence, which must be annexed to the application (producing evidence at the reply stage is normally not allowed, cf para 4.243). In principle, all the annexes must be submitted in the language of the case. However, this rule may be applied with some leniency if the annex is drawn up not in the language of the case, but in another, widely used, language, such as English. In such a case, the whole annex is seldom required to be translated into the language of the case (cf para 4.31). However, it may still be worthwhile to translate the most relevant sections of the annexed evidence into the language of the case and place them at least in a footnote of the brief.

4.189

(E)laborate pleadings – pleadings must be well argued; the EU Courts do not do the work of the lawyers. Under the relevant case law, the application must specify the grounds on which the action is based. This is reflected by an often-used case law formula:

4.190

It is for the applicant and its lawyer to set out the factual and legal grounds on which the action is based and not for the Court to do their work by trying to locate and identify, from all the evidence to which the application makes general reference, the information which may support the claims formulated in the application.140 139 Order of 28 April 1993 in Case T-85/92 De Hoe v Commission [EU:T:1993:39] para 20; Case T-113/96 Dubois et Fils v Council and Commission [EU:T:1998:11] para 29; Order of 13 December 1996 in Case T-128/96 Lebedef v Commission [EU:T:1996:203] para 25. 140 Order of 29 November 1993 in Case T-56/92 Koelman v Commission [EU:T:1993:105] para 23; Case T-63/06 Evropaïki Dynamiki v OEDT [EU:T:2010:368] para 80; Order of 21 April 2015 in Case T-580/13 Real Express v OHMI – MIP Metro (real) [EU:T:2015:245] para 31. See also Case T-461/07 Visa Europe and Visa International Service v Commission [EU:T:2011:181] paras 50–51 and 53.

446 Procedure in Direct Actions Therefore, it should be borne in mind that the EU Courts will neither screen the annexes for relevant information nor construe arguments in the applicant’s favour. Furthermore, factual and legal assertions must be accompanied by proper references to precise passages of the annexed documents, case law, or EU or national legal provisions.141 In particular, it is not enough to make a general reference to an annexed document when using it as evidence: the precise section of the relevant annex that supports the factual assertion must be indicated in the brief itself. 4.191

References to other documents cannot substitute the essential content of the application. Article 120(c) of the CJ RoP and Article 76(d) of the GC RoP require that the application must contain the subject matter of the proceedings, the pleas in law and arguments on which the application is based. Under settled case law, a reference to another document cannot substitute the essential content of the application: The essential facts and law on which an application is based must be apparent from the text of the application itself, even if only stated briefly … a reference in the application to such elements in an annex to the application is therefore not sufficient.142

All factual and legal assertions of the applicant must be contained in the application itself, structured in pleas in law: Even though the body of the application may be supported and supplemented, in regard to specific points, by references to extracts of documents appended thereto, the annexes have a purely evidential and instrumental function. The annexes cannot therefore serve as a basis for developing a plea set out in summary form in the application by putting forward complaints or arguments which are not contained in that application. The applicant must indicate in its application the specific complaints on which the Court is asked to rule and, at the very least in summary form, the legal and factual particulars on which those complaints are based.143

Therefore, an annex to the application will be taken into consideration by the EU Courts only insofar as it supports or supplements pleas or arguments expressly set out by the applicant in the body of his written pleadings and only insofar as it is possible for the Courts to determine precisely what the matters contained in that annex are that support or supplement those pleas or arguments.144 Moreover, it is not admissible to merely reproduce the content of a document submitted by the applicant in the administrative procedure and file it as the application.145 However, it is possible to copy the entire content of such pre-existing documents if the reproduced content is inserted into the framework of a plea in law and is thus presented in a form that is suitable for the procedure before the General Court.146 It follows from the above that an applicant may put himself in a disadvantageous situation if he only generally refers to an annexed document – or to a document he submitted in another case before the EU Courts – to provide information on the facts of the case or to clarify his position on a certain issue. For instance, a frequent mistake is where an applicant makes references to documents produced by him in the 141 M Barennes and P Hecker, ‘Strategic and efficient brief writing before the General Court of the European Union: Practical suggestions regarding the application and the reply in competition law cases’ (2012) Concurrences 4–2012, p. 8. 142 Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [EU:C:2005:408] para 94; Case T-387/11 Nitrogénművek Vegyipari v Commission [EU:T:2013:98] paras 21–22. See also Order of 29 November 1993 in Case T-56/92 Koelman v Commission [EU:T:1993:105] para 21; Order of 21 April 2015 in Case T-580/13 Real Express v OHMI – MIP Metro (real) [EU:T:2015:245] para 30. 143 Case T-340/03 France Télécom v Commission [EU:T:2007:22] para 167. See also Case C-52/90 Commission v Denmark (tax exemptions for means of transport) [EU:C:1992:151] para 17. 144 Case T-461/07 Visa Europe and Visa International Service v Commission [EU:T:2011:181] paras 50–53. 145 Order of 7 March 1994 in Case C-338/93 P De Hoe v Commission [EU:C:1994:85] paras 28–30. 146 Order of 21 May 1999 in Case T-154/98 Asia Motor France and Others v Commission [EU:T:1999:109] para 50.

Application 447 administrative procedure by asserting that his position on a given question has already been set out in those documents. Such arguments will be dismissed as (manifestly) inadmissible because they breach Article 120(c) of the CJ RoP or Article 76(d) of the GC RoP, as interpreted in the case law presented above in this paragraph. References to pleadings or to annexes submitted in a parallel case. While, in some cases, the EU Courts have allowed a reference by the applicant to the arguments he presented in another, parallel, case between him and the same adverse party before the same EU Court, references made by the applicant to the submissions by another party in a similar, parallel case are clearly inadmissible in light of the case law presented in paras 4.190 and 4.191.147

4.192

Actions filed by several companies belonging to the same undertaking. A particular situation may arise where several applicants belonging to the same undertaking within the meaning of Article 101 TFEU challenge the same Commission decision imposing fines on them for having participated in a cartel. The liability of the parent company for the infringement of competition rules results from the acts of its subsidiary. It follows from Total SA that the General Court has to take into account the successful arguments raised by the subsidiary, which result in the reduction of the fine imposed on the subsidiary, when ruling on the application separately introduced by the parent company, even if the latter did not raise those arguments before the General Court.148 This precedent of the Court of Justice forces the General Court to go beyond what is put forward in the application in a given case and to take into account, in its judgment, arguments put forward in a different case by a different applicant. Therefore, if the Total SA precedent is followed, the General Court must derogate from the rule laid down in Article 76(d) of the GC RoP, under which the ‘application shall contain … the pleas in law and arguments relied on’.

4.193

The applicant’s reasoning must be construed separately in respect of each plea in law. It must be recalled that the Courts examine each plea in law separately. In that regard, ‘it is not the task of the Court to search through all the matters relied on in support of a plea in order to ascertain whether those matters could also be used in support of another plea’.149 It is therefore recommended to specify which paragraphs belonging to a plea are reused for the purposes of another plea and to explain how that reasoning can be fitted into the logic of the latter. Another technique to avoid repetitions is to draw up a general part in the application or a part which is common to several pleas in law to indicate that some arguments are intended to support multiple pleas. The bearing of those overarching arguments must still, however, be explained in the context of each plea in law (cf para 4.176).

4.194

In actions for annulment, pleas in law are independent of the complaints raised in the administrative procedure. In general, in the context of an action for annulment (Article 263 TFEU), the applicant may raise any plea in law and may assert the illegality of any aspect of the contested act irrespective of whether he criticised that aspect in the administrative procedure leading up to the adoption of the contested act. A different rule applies in staff cases, the so-called principle of correspondence. Under this rule, significantly revised in Mandt, the relief sought and the cause of action should be the same in the application brought before the EU Courts and in the administrative complaint, meaning that the applicant must limit the pleas in law in his a pplication filed

4.195

147 T-209/01 Honeywell v Commission [EU:T:2005:455] paras 54–67; Case T-360/06 Heijmans v Commission [EU:T:2012:490] paras 25–26. 148 C-597/13 P Total v Commission (candle wax cartel) [EU:C:2015:613] paras 31–43. See also C-286/11 P Commission v Tomkins (copper alloy fittings cartel) [EU:C:2013:29]. 149 Case T-322/01 Roquette Frères v Commission [EU:T:2006:267] para 209; Case T-226/09 British Telecommunications v Commission [EU:T:2013:466] para 233.

448 Procedure in Direct Actions before the EU Courts to matters he has already brought forward against the institution in the administrative phase, called pre-contentious procedure in staff cases150 (cf Section 3.4.7. The Rule of Correspondence). Similar restrictions apply in intellectual property cases, where the terms of the litigation fixed before the Boards of Appeal (cf Section 3.5.7. Connection with the Prelitigation Phase). In Knauf Gips, the General Court attempted to introduce similar limitations in actions for annulment in the field of competition law. It held that if the applicant did not object, in its reply to the statement of objections, to the Commission’s findings communicated in that statement as regards its liability for the infringement of competition rules, it did not have the right to assert in the judicial procedure before the General Court that the corresponding findings in the contested decision were illegal. The General Court considered that, in such a situation, the onus was on the applicant to react during the administrative procedure or face the prospect of no longer being able to do so in the judicial procedure.151 However, the Court of Justice disagreed with this reasoning and quashed the first instance judgment. It held that there was no such requirement under EU law and the applicant could not be barred from raising any plea in law in the judicial procedure. It held that such a restriction was contrary to the fundamental principles of the rule of law and of respect for the rights of the defence, and the explicit provisions of the Charter of Fundamental Rights.152

4.2.2.5. Submitting, Offering, Requesting Evidence 4.196

Evidence, as a rule, must be submitted or offered by the applicant in the application. The applicant must submit or offer evidence in the application.153 The submission of new evidence in the reply or later must be duly justified (cf paras 4.243 et seq and 4.272).

4.197

Evidence held by the other party, as a rule, must be requested by the applicant in the application. Similar rules apply to situations where the applicant is not in possession of the evidence he wishes to base his argumentation on and attempts to extract evidence from the other party by applying to the General Court for the adoption of measures of organisation of procedure or measures of inquiry in their regard. The applicant may indeed ask the General Court to invite the defendant to produce that evidence (by adopting a measure of organisation of procedure) or to order the defendant to do so (by adopting a measure of inquiry), the difference being that the defendant my decline the invitation by the General Court but must comply with the order (cf paras 5.32–5.41). Requests in this regard must be made by the applicant in the application and not at later stages of the procedure, unless a later request is duly justified: [GC RoP] Article 88 General 1. Measures of organisation of procedure and measures of inquiry may be taken or modified at any stage of the proceedings either of the General Court’s own motion or on the application of a main party. 2. The application referred to in paragraph 1 must state precisely the purpose of the measures sought and the reasons for them. Where the application is made after the first exchange of pleadings, the party submitting that application must state the reasons for which he was unable to submit it earlier. 3. Where an application for measures of organisation of procedure or for measures of inquiry is made, the President shall give the other parties an opportunity to comment on that application.

150 On

the evolution of this case law, see Case F-45/07 Mandt v Parliament [EU:F:2010:72] paras 108–122. T-52/03 Knauf Gips v Commission (plasterboard cartel) [EU:T:2008:253] paras 358–360. 152 Case C-407/08 P Knauf Gips v Commission (plasterboard cartel) [EU:C:2010:389] paras 89–91. 153 CJ RoP, Art 120(e); GC RoP, Art 85(1). 151 Case

Application 449

4.2.2.6. Actions by the EU Courts after Receiving the Application (i) Examination of the Application by the Registry Verifying compliance with the formal requirements. Once the application is received, the Registry of the relevant EU Court examines whether the application complies with the formal requirements laid down in the Statute and in the Rules of Procedure (cf Subsection 4.2.2.1). The Registry may request the applicant to make good formal defects. If the defect is irreparable, it will prepare an order rejecting the application as inadmissible.

4.198

(ii) Service of the Application on the Defendant Service of the application triggers the deadline for filing the defence. The CJ RoP does not foresee any specific rules regarding the service of the application.154 The GC RoP does: the application is served on the defendant via e-Curia if he has an e-Curia account. If not, service takes place in the form of a certified copy sent by registered post with a form for acknowledgement of receipt or by personal delivery of the copy against a receipt.155 Both the Commission and the Council have agreed to electronic delivery via e-Curia as the general method of service156 (cf para 4.68). The rules regarding the time of delivery apply and the day of delivery is the starting point for calculating the time limit of two months and 10 days for filing the defence (cf paras 4.74–4.93 and 4.207). Some formal defects in the application delay service on the defendant (until they are made good), others do not. Defects are categorised in this regard in the annexes to the GC PR.

4.199

(iii) Publishing the Notice of the Application in the Official Journal The Official Journal notice informs the public of the application and triggers the deadline to lodge an application to intervene. Under Article 21(4) of the CJ RoP and Article 79 of the GC RoP, a notice shall be published in the Official Journal indicating the date of lodging of an application initiating proceedings, the names of the main parties or their initials replacing a name,157 the form of order sought by the applicant, and a summary of the pleas in law and of the main supporting arguments. The forms of order sought (heads of claim) are published as worded by the applicant (cf paras 4.149–4.157) and the summary of the pleas in law prepared by the applicant in the application (cf para 4.126) will also be used for these purposes. The notice informs the public of the initiation of the proceedings. One of its most important effects is that the six-week time limit for submitting an application to intervene (cf para 5.262) is calculated from the publication of the notice.158

4.200

(iv) Designation of the Judge-Rapporteur General. Under Article 15 of the CJ RoP, as soon as possible after the document initiating proceedings has been lodged, the President of the Court of Justice designates a Judge to act as rapporteur in the case (cf para 1.35). In the case of the General Court, under Article 26 of the GC RoP, the attribution of the case involves three steps. First, as soon as possible after the document 154 CJ RoP, Art 123. 155 GC RoP, Art 80. 156 e-Curia decisions, Art 6(2). 157 The possibility to render parties anonymous in the OJ notice is explicitly provided for in CJ RoP, Art 21(4). The same is possible in proceedings before the General Court under GC RoP, Art 66. 158 CJ RoP, Art 130(1); GC RoP, Art 143(1).

4.201

450 Procedure in Direct Actions initiating proceedings has been lodged, the President of the General Court assigns the case to a Chamber.159 Secondly, the President of the Chamber proposes to the President of the General Court the designation of a Judge to act as rapporteur. Thirdly, the proposal must be approved by the President of the General Court (cf para 1.58). In both the Court of Justice and the General Court, the Judge-Rapporteur, once designated, will assign the case to a référendaire, who will examine it. Effective examination of the dossier in the Judges’ cabinets normally starts only after receiving the defence, when the Judge-Rapporteur has to decide whether the defence contains an informal plea of illegality and whether a second exchange of written pleadings is necessary.160 The GC RoP of 2015 contains a new set of rules governing the reassignment of cases161 (cf para 1.59).

4.2.3. Defence 4.202

Concept. The defence is the first and most important written pleading lodged by the defendant. It contains the arguments of the defendant reacting to the application, as well as the defendant’s evidence, offer of evidence and request for evidence. The structure of the defence normally corresponds to that of the application, mirroring the pleas in law put forward by the applicant. However, the defendant may also use another structure. Naturally, in this document, the defendant attempts to refute all the arguments of the applicant or show that they are irrelevant.

4.203

The defence must contain all the pleas in law and evidence. As the applicant, the defendant is also limited, at later stages of the proceedings, to pleas in law put forward in the defence. New pleas in law may only be raised after the submission of the defence if they are based on matters of law or fact that came to light during the procedure (cf para 4.175 by analogy).162 Also, evidence must be produced, offered or requested in the defence, and any delay in this regard must be justified.163 These provisions ensure that the defendant does not keep its best arguments and counter-evidence for the rejoinder stage, after which the applicant no longer has the opportunity to react in writing, but puts them forward in the defence, which allows the applicant to develop his argumentation in the reply.

4.2.3.1. Formal Requirements 4.204

Lodging the defence. The defence is essentially subject to the same formal requirements as the application.164 It must be dated and signed, and must be submitted by one of the methods specified in the Rules of Procedure (cf paras 4.56–4.67). The Commission and the Council lodge the defence through the e-Curia system.

4.205

Mandatory content of the defence. Under Article 124(1) of the CJ RoP, the defendant must state in the defence: (a) the name and address of the defendant; (b) the pleas in law and arguments relied on;

159 GC RoP, Art 25. 160 Where a formal plea of illegality is raised by the defendant, the examination starts upon its receipt. 161 GC RoP, Art 27. 162 GC RoP, Art 84(1). This provision has no equivalent in the CJ RoP; it does, however, reflect the practice of both Courts. 163 GC RoP, Art 85; Case T-540/08 Esso and Others v Commission (candle wax cartel) [EU:T:2014:630] paras 64–66. 164 CJ PD, para 15.

Defence 451 (c) the form of order sought by the defendant; (d) where appropriate, any evidence produced or offered.

These provisions are mirrored in Article 81(1) of the GC RoP, which provide that the defence shall contain: (a) (b) (c) (d) (e)

the name and address of the defendant; particulars of the status and address of the [defendant’s]165 representative; the pleas in law and arguments relied on; the form of order sought by the defendant; where appropriate, any evidence produced or offered.

In proceedings before the Court of Justice, information relating to the method of service (e-Curia, post or fax) must also be provided in the defence.166 In proceedings before the General Court, after the reception of the defence, the sole method of serving documents is e-Curia. Moreover, where the defendant in a procedure before the General Court is a legal person governed by private law (which can only occur in an action brought by an institution or body pursuant to an arbitration clause), the application must also be accompanied by recent proof of the defendant’s existence in law (cf para 4.132). The case law on formal requirements developed in the context of the application also applies to the defence. Size limit. In direct actions brought before the Court of Justice, the size limit of the defence is 30 pages.167 In direct actions before the General Court, the maximum volume of the defence is 50 pages, except in staff cases brought under Article 270 TFEU, where the size limit is 30 pages.168 The defendant may ask the General Court to allow a longer defence, which may be justified especially if the application significantly exceeded the size limit (cf paras 4.129–4.130).

4.206

Time limit. The time limit for lodging the defence is two months counted from the service of the application on the defendant.169 Ten days are added as an extension of the time limit on account of distance. This time limit may exceptionally be extended by the President of the Chamber to which the case has been assigned, at the duly reasoned request of the defendant.170 In direct actions brought against the Commission, the latter’s argument that it received simultaneously a large number of applications in one of the languages which is not commonly spoken by its staff but only by some members is normally accepted as a justification for extending the deadline to file the defence. Indeed, it cannot be expected that the same few members of the Commission’s legal service draft a large number of written pleadings within the two months and 10 days that are open for lodging the defence. Such situations often occur when the same cartel or State aid decision of the Commission is challenged by several applicants by submitting applications in a language which is not English or French.

4.207

Missing the deadline to submit the defence – judgment by default. It may happen that the defendant – usually an EU institution or body in direct actions lodged with the General Court or a Member State in infringement cases lodged with the Court of Justice – fails to submit the defence in due time. The consequence is that, on the request of the applicant, the EU Courts

4.208

165 The

English language version of the GC RoP mistakenly mentions the applicant. RoP, Art 124(2). 167 CJ PD, para 16. 168 GC PR, para 105. 169 CJ RoP, Art 124(1); GC RoP, Art 81(1). 170 CJ RoP, Art 124(3); CJ PD, para 15; GC RoP, Art 81(3). 166 CJ

452 Procedure in Direct Actions deliver a judgment by default,171 ie decide the case without having any argumentation from the defendant on file.172 To attenuate the harm that public interest may suffer from such a procedural mistake committed by the defendant’s representative, the Statute allows for an objection to be filed against the judgment by default.173 The Rules of Procedure flesh out this rule by providing that, within one month from the date of service of the judgment by default, an application to set aside that judgment may be lodged174 and, on that basis, the EU Courts will examine the substantive arguments of the defendant175 (for more detail, see Chapter 5.9. Judgment by Default). 4.209

Rectified version of the defence. It is not unusual that, in proceedings before the General Court, the defendant submits a rectified version of the defence at a later stage of the proceedings, possible after the reply. If that new version only corrects some clerical errors without altering the reasoning of the defendant, the applicant’s procedural rights are not infringed and he cannot claim the right to submit new pleas in law at that later stage of the procedure176 (see also para 4.73 on corrigenda to written pleadings).

4.2.3.2. Substantive Requirements 4.210

The same rules apply as in the case of the application. Under the Rules of Procedure, the defence has to set out the pleas in law and arguments relied on.177 Therefore, as is the case for the application, the defence also has to fulfil the substantive requirements of clarity and precision (cf paras 4.138 and 4.178), and general references to other documents, without setting out the arguments in the text of the pleading are inadmissible (cf paras 4.192–4.195).178

4.2.3.3. Forms of Order Sought 4.211

General. The precise wording of the form of order sought by the defendant must be stated either at the beginning or at the end of the defence.179

4.212

Dismissing the application. The defendant, naturally, always asks the EU Courts to dismiss the application. It may ask the EU Courts to dismiss the application as unfounded (meaning that the rejection should be based on substantive grounds) or as partially unfounded and partially inadmissible (where some pleas in law or arguments should be dismissed on substantive grounds and others because of inadmissibility). It is also possible to ask the EU Courts to dismiss the application as inadmissible as a whole and, if not, as unfounded, or to express doubts regarding the admissibility of the application without raising a formal claim as regards inadmissibility (cf para 5.334). In practice, where the defendant is relatively convinced that the application is inadmissible in its entirety, he would rather file a plea of inadmissibility180 (cf Section 5.7.1. Inadmissibility), because then he does not have to react to the substantive arguments of the applicant. 171 Statute, Art 41. 172 Case T-44/02 Dresdner Bank v Commission [EU:T:2004:299]. 173 Statute, Art 41. 174 CJ RoP, Art 156; GC RoP, Art 166. 175 See Joined Cases T-44/02 OP, T-54/02 OP, T-56/02 OP, T-60/02 OP and T-61/02 OP Dresdner Bank and Others v Commission [EU:T:2006:271] paras 21–24 and the subsequent analysis. 176 Case T-4/06 Poland v Commission (Sugar) [EU:T:2011:546] paras 41–44. 177 CJ RoP, Art 124(1); GC RoP, Art 81(1). 178 Case T-133/07 Mitsubishi Electric v Commission [EU:T:2011:345] paras 24–25; Case T-111/08 MasterCard and Others v Commission [EU:T:2012:260] paras 68–71. 179 GC PR, para 124. 180 CJ RoP, Art 151(1); GC RoP, Art 130(1).

Defence 453 Costs. The defendant has to request an order regarding the costs in the defence in order to claim the costs in case he wins the case, otherwise the EU Courts will not rule on them and he will have to bear his own costs.181

4.213

The counterclaim to increase fine in competition cases. In competition cases, the review of legality exercised by the EU Courts is supplemented by the unlimited jurisdiction.182 That jurisdiction empowers the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed.183 As a counterclaim, the Commission may ask the Courts to increase the fine.184 The prevalent opinion in the Courts is that an increase in the fine may only take place where the Commission explicitly requested it. Indeed, the Rules of Procedure foresee that the forms of order sought must be in the defence185 and increasing the fine without any claim would arguably be a ruling ultra petita.

4.214

4.2.3.4. Pleas in Law and Arguments Structure. Since the legal framework of the proceedings is fixed by the application, the legal arguments developed in the defence must, so far as is possible, be set out and grouped by reference to the pleas in law or complaints put forward in the application.186 Therefore, the structure of the defence usually follows that of the application. However, sometimes the defendant rearranges the structure; for instance, it may argue that a single set of arguments should cause the Court to dismiss several pleas in law put forward by the applicant, since they are based on the same erroneous postulation. If, in the reply, the applicant follows the new structure used by the defendant, the Court is likely to take that structure as a basis for the judgment.

4.215

Presenting the facts. In the procedure before the Court of Justice, the factual and legal background is to be recapitulated in the defence only insofar as its presentation in the application is disputed or calls for further particulars.187 In the procedure before the General Court, the Court tends to draw on the presentation of the relevant facts by the defendant (after due verification, of course). Therefore, the defendant does not need to limit itself to the disputed issues, but is welcome to set out the factual framework in a concise and logical manner.

4.216

The defendant may seek rejection of the application on substantive and formal grounds. The primary purpose of the defence is to allow the defendant to respond to the substantive arguments put forward by the applicant in the application and to seek the dismissal of the application on the merits of the case. Indeed, the Rules of Procedure foresee a separate avenue for challenging the admissibility of the application – the plea of inadmissibility that must be lodged in a separate document.188 In practice, however, the EU Courts show a great deal of flexibility in this regard. Nothing prevents the defendant from raising in the defence issues related to the admissibility of certain pleas in law or arguments submitted by the applicant,189 or to express doubts regarding

4.217

181 CJ RoP, Art 138; GC RoP, Art 134. 182 TFEU Art 261; Art 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] of the Treaty (OJ 2003 L 1, p. 1). 183 Case C-389/10 P KME Germany and Others v Commission [EU:C:2011:816] para 130. 184 Case T-25/05 KME Germany and Others v Commission [EU:T:2010:206] para 48. 185 CJ RoP, Art 124(1); GC RoP, Art 81(1). 186 CJ PD, para 16; GC PR, para 126. 187 CJ PD, para 16. 188 CJ RoP, Art 151(1); GC RoP, Art 130(1). 189 Case C-38/10 Commission v Portugal (transfer of residence for tax purposes) [EU:C:2012:521] paras 14–18.

454 Procedure in Direct Actions the admissibility of the application as a whole (cf para 5.334). The Courts do not follow a formalistic approach, and it is perfectly possible for the application to be rejected as inadmissible on the basis of the defendant’s arguments put forward in the defence and not in a separate act. 4.218

ABCDE recommendations. Recommendations and case law set out in relation to the drafting of the application are also to be followed, mutatis mutandis, when the defence is being prepared (cf paras 4.178–4.195). For instance, the rule under which references to annexes cannot substitute the essential content of the application (cf para 4.191) is also applicable to the defence.190

4.2.3.5. Actions by the EU Courts after Receiving the Defence 4.219

Second exchange of pleadings. As a rule, shortly after receiving the defence, the Registries of the EU Courts serve it on the applicant and set a deadline for him to submit his reply or give him possibility of requesting a second written round. If submitting a reply is authorised, usually around six to seven weeks are allowed for lodging it, although the deadline may be extended if a duly justified request is received from the applicant. The GC RoP provides that the General Court may decide that a second exchange of written pleadings is not necessary because the contents of the file are sufficiently comprehensive.191

4.220

Are there admissibility issues raised in the defence? At the time when the defence is lodged, the case has already been attributed to a Judge-Rapporteur. As a rule, the Judge-Rapporteur will determine whether the defendant expressed doubts in the defence regarding the admissibility of the action as a whole without formally raising a plea of inadmissibility (cf para 5.334). If so, and there are valid reasons underpinning the doubts, the Courts will invite the applicant to express his position on the admissibility issues only, without setting a deadline for lodging the reply.192 If the admissibility issues raised by the defendant only relate to certain heads of claim, pleas in law or arguments, so that the admissibility of the action as a whole is not put into question (and a second exchange of written pleadings is allowed), there is no need for such an invitation: the applicant may also take a position on the admissibility issues in the reply along with his arguments regarding the substance of the case.

4.2.4. Reply 4.2.4.1. General 4.221

Concept. The reply is the second written pleading lodged by the applicant, in which he is given the opportunity to respond to the new matters raised in the defence, as well as to supplement and refine his argumentation put forward in the application.193 As a novelty introduced in the CJ RoP of 2012 and in the GC RoP of 2015, the President of the Chamber may specify the matters to which the reply should relate,194 by inviting the applicant to focus on certain outstanding issues. 190 Case T-111/08 MasterCard and Others v Commission [EU:T:2012:260] paras 68–71. 191 GC RoP, Art 83(1). 192 CJ RoP, Art 150 and GC RoP, Art 129 provide that if there is an absolute bar to proceeding with the case (ie the application is inadmissible), the EU Courts may at any time of their own motion, after hearing the main parties, decide to dismiss the application by reasoned order. ‘Hearing the main parties’ normally means asking them a written question regarding the admissibility issue in hand. 193 GC PR, paras 129–130. 194 CJ RoP, Art 126(2); GC RoP, Art 83(3).

Reply 455 Reminder: the application creates a rigid framework for the litigation. After lodging the application, the applicant, as a rule, is not allowed to change the type of action (for instance, by transforming an action for failure to act into an action for annulment)195 or, save some exceptions (cf paras 4.161–4.165), the forms of order sought.196 Nor is he allowed, as a rule, to raise new pleas in law, or to submit or offer new evidence after filing the application, unless the delay is justified. Such attempts are more often made in the reply than at later stages of the procedure, which justifies the examination of these issues in the present section. The restrictive rules discussed here are, however, mostly transposable to pleas, arguments and evidence which are submitted at later stages of the procedure, for instance at the hearing (cf para 4.304). They also apply to situations where there is no reply – for instance, where the applicant submits his observations to a request in which the defendant asks the EU Courts to dismiss the application as inadmissible or because there is no need to adjudicate.197

4.222

Timing. Once the defence is filed, and the Judge-Rapporteur does not object to a second exchange of briefs (cf paras 4.219–4.220), the Registry sets the deadline for the submission of the reply, usually allowing approximately six weeks. This is a deadline set by the Courts which already includes the 10 days added on account of distance (cf para 4.77). Extension may be granted by the Courts in exceptional circumstances and on a duly reasoned request.198

4.223

Formal requirements. The reply and the rejoinder are subject to the same formal rules as the application and the defence. The CJ PD and the GC PR prescribe that, in direct actions, the size limit of the second briefs is 10 pages in proceedings before the Court of Justice199 and 25 pages in proceedings before the General Court (save in staff cases, where the size limit is 15 pages),200 to be exceeded only in exceptional circumstances.

4.224

Substantive requirements. The case law on the clarity and precision of the application (cf para 4.178), as well as that on the inadmissibility of general references to other documents without specifying their relevant content in the text of the pleading (cf paras 4.192–4.195), are also applicable to the reply.201

4.225

Structure. Since the framework and the pleas in law or claims at the heart of the dispute have been set out (or disputed) in depth in the application and the defence, the only purpose of the reply and the rejoinder is to allow the applicant and the defendant to make clear their position or to refine their arguments on an important issue.202 Therefore, there is no need to sum up once again the facts of the case. The reply usually follows the structure of the application. However, where the defendant used a different structure in the defence, the applicant sometimes draws on it (cf para 4.215). It is not necessary to add observations or arguments regarding all the aspects of the case as set out in the application, especially if the President of the Chamber specified the matters to which the second exchange of pleadings should relate.203

4.226

195 Case T-28/90 Asia Motor France v Commission [EU:T:1992:98] paras 43–44; Case T-10/95 Chehab v Commission [EU:T:1996:42] para 66. 196 Order of 17 May 2006 in Case T-241/03 Marcuccio v Commission [EU:T:2006:129] 52–53. 197 Order of 30 April 2015 in Case T-250/14 EEB v Commission [EU:T:2015:274] paras 22–28. 198 CJ PD, para 17. 199 CJ PD, para 17. 200 GC PR 105. 201 Joined Cases T-305/94 to T-307/94, T-313/94 to T-315/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission (PVC cartel) [EU:T:1999:80] paras 39–40 and 46; Case T-58/01 Solvay v Commission [EU:T:2009:520] para 318. 202 CJ PD, para 17. 203 CJ RoP, Art 126(2); GC RoP, Art 83(3).

456 Procedure in Direct Actions

4.2.4.2. New Pleas in Law in the Reply or Later 4.227

Strict conditions regarding the introduction of new pleas after the application. Under the Rules of Procedure of both EU Courts, no new plea in law may be raised in the reply or in the rejoinder, unless it is based on matters of law or fact which come to light in the course of the procedure.204 The strict conditions regarding the introduction of new pleas also apply to claims,205 ie subdivisions of pleas in law, and to new arguments which cannot be fitted into the framework of any of the pleas in law already raised in the application. The Courts are thus exempted from the task of defining new pleas in law against mere claims or arguments, since the same rules apply to all these elements of the written pleading. Article 127 of the CJ RoP contains the relevant provisions, without specifying any procedural requirements as to the submission of new pleas: 1. No new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. 2. Without prejudice to the decision to be taken on the admissibility of the plea in law, the President may, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, prescribe a time limit within which the other party may respond to that plea.

The old GC RoP of 1991206 contained similar provisions. However, Article 84 of the new GC RoP of 2015 introduced some changes in this regard, and regulates the issue in more detail: 1. No new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. 2. Any new pleas in law shall be introduced in the second exchange of pleadings and identified as such. Where the matters of law or of fact justifying the introduction of new pleas in law are known after the second exchange of pleadings or after it has been decided not to authorise a second exchange of pleadings, the main party concerned shall introduce the new pleas in law as soon as those matters come to his knowledge. 3. Without prejudice to the decision to be taken by the General Court on the admissibility of the new pleas in law, the President shall give the other parties an opportunity to respond to those pleas.

4.228

Novelties brought by the GC RoP of 2015. The new GC RoP thus require that the party put forward the new plea in his second written pleading (the reply) or as soon as the new matter comes to his knowledge.207 These new rules aim to reduce the number of the cases where the applicant, albeit already aware of the new matter during the written part of the procedure, only raises a new plea at the hearing. Raising a new plea or argument at the hearing might be a tempting tactic, since the other party only has a short speaking time and is likely to be unprepared to provide good arguments in response to the new matter. The General Court is fully aware of the difficulties the other party may encounter. Therefore, if a new plea is raised at the hearing, it may leave the oral part of the procedure open after the end of the hearing and grant the other party the possibility to respond to the new plea in writing, on the grounds of procedural equity. The rationale of the new Article 84(2) of the GC RoP, which requires the submission of any new plea as soon as practicable, is precisely to limit the number of such issues that are liable to prolong proceedings. It also aims to enhance procedural fairness vis-à-vis the other party. Indeed, where

204 CJ RoP, Art 127; GC RoP, Art 84. 205 Case T-43/07 P Neophytou v Commission [EU:T:2008:432] paras 71 and 76. 206 Art 48 of the old GC RoP of 1991. 207 This new provision invalidates some earlier case law on the lack of requirements as to the timing and the formal requirements related to the introduction of new pleas.

Reply 457 the new plea in law is introduced in the reply, instead of at the hearing, the defendant may react to it in writing in the rejoinder. In another scenario, where the new matter comes to the knowledge of the applicant after lodging the reply, under the new GC RoP, he may not wait until the hearing but must introduce the new plea in law in a separate document as soon as possible. The General Court may then invite the defendant to respond in the rejoinder, or in a separate document, by issuing such an invitation as a measure of organisation of procedure. The GC RoP of 2015 also require that the new plea in law be identified as such. Practical issues. Since the introduction of new pleas is subjected to strict conditions, there are two key aspects which are of great interest for litigants: first, the case law regarding the concept of new matter that justifies the submission of a plea in the reply or later; and, secondly, the question of delineating the submission of a new plea from adding arguments which merely refine or supplement an existing plea (the so-called ‘amplification’ or ‘expounding’ of a plea in law’), possibly in reaction to the content of the defence. These aspects are crucial, because if the new pleas, complaints, arguments or heads of claim208 put forward by the applicant in the reply or later are neither an expansion of an existing plea nor based on new matter, they will be dismissed as being submitted out of time and hence inadmissible.209

4.229

(i) New Matters of Fact New facts. Where the applicant discovers new facts in the defence, he may rely on this circumstance to justify putting forward new arguments that cannot be fitted into the framework of any of the pleas in law already raised in the application.210 The fact that the applicant became aware of a fact during the course of the procedure before the EU Courts does not mean that that element constitutes a matter of fact which came to light in the course of the procedure. A further requirement is that the applicant was not in a position to be aware of that matter previously.211 This means that the applicant has to make his best effort to gather all relevant facts early and rely on them already in the application, or put forward the additional arguments as soon as possible during the written phase of the procedure. New facts justifying the late submission of a plea may also come to the knowledge of the applicant when he receives the response of the other party to the order of the EU Courts adopted as a measure of inquiry212 or a measure of organisation of procedure.213 In this case, of course, the new pleas in law or arguments must be placed in a separate document or raised at the hearing, since these measures are adopted after the second exchange of written pleadings.

4.230

Replacement of the contested act is a new fact. In actions for annulment (or in staff cases), where the contested act is replaced by another act during the procedure before the EU Courts, the applicant is allowed to change the heads of claim and to introduce new pleas in law in support of

4.231

208 Case T-236/07 Germany v Commission (EAGGF) [EU:T:2010:451] paras 27–28. 209 Case T-442/03 SIC v Commission [EU:T:2008:228] paras 157–160. See also Case T-40/01 Scan Office Design v Commission [EU:T:2002:288] para 96; Joined Cases T-134/03 and T-135/03 Common Market Fertilizers v Commission [EU:T:2005:339] para 51. 210 Case T-141/97 Yasse v EIB [EU:T:1999:177] paras 126–128. 211 Case T-139/99 AICS v Parliament [EU:T:2000:182] paras 59 and 62; Case T-340/04 France Télécom v Commission [EU:T:2007:81] para 164. 212 Case C-137/92 P Commission v BASF [EU:C:1994:247] paras 59–60. The applicant learnt from the reply of the Commission to the Court’s order that the Commission did not possess any certified copy of the contested decision. 213 Case C-259/96 P Council v De Nil and Impens [EU:C:1998:224] para 31; Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P, C-251/99 P, C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [ECLI:EU:C:2002:582] paras 369–371; Case T-210/01 General Electric v Commission [EU:T:2005:456] para 505.

458 Procedure in Direct Actions those new heads of claim.214 The issue is regulated in the new GC RoP, which codified and clarified the pre-existing case law (cf paras 4.161–4.168). 4.232

Action for damages – newly discovered illegal conduct cannot be added. Where the applicant who has lodged an action for damages discovers, during the course of the proceedings before the General Court, more acts or omissions attributable to the defendant that might have contributed to the damage or could have increased it, he may not change the framework of the litigation, fixed in the application, by introducing those new elements in the reply or later.215

4.233

Example of new matter of fact. In Good Luck Shipping, the applicant was placed on the list of entities whose assets were frozen as part of restrictive measures introduced against Iran. The list constituted the annex of a Council decision against which the applicant brought an action for annulment on 9 February 2012. However, it was not until 31 May 2012, that is, during the proceedings before the General Court, that the applicant became aware that the Council had decided to add its name to the lists at issue without being in possession of any evidence. The applicant did make its best effort to obtain information earlier, as it requested the Council to provide evidence relating to its inclusion on the lists of targeted entities by a letter of 7 February 2012. However, the Council had not replied until 31 May 2012, which was the day on which it lodged its defence in the proceedings before the General Court. The Court considered that the information relating to the lack of evidence was a new matter of fact that justified allowing the applicant to raise a new plea in law in the reply regarding that lack of evidence.216 (ii) New Matters of Law

4.234

New judgments handed down after the application. New judgments delivered by the EU Courts after the submission of the first pleadings (application or defence) often inspire the parties to raise new pleas in law or arguments in the reply or the rejoinder. They often claim that a legal issue has been newly clarified, or tend to argue that the Courts have changed the pre-existing case law in their favour. However, the Courts are quite strict in this regard. Under the settled case law, a new judgment that merely confirms law which ought to have been known to the applicant when it brought the action is not new matter allowing a fresh plea to be raised in the reply or at the hearing.217 (iii) Expounding Pleas in Law or Expressing them in Different Terms

4.235

The settled case law. The Rules of Procedure provide that the application must contain the subject matter of the proceedings, the pleas in law and the arguments relied on.218 They also foresee that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact that come to light in the course of the procedure.219 These rules mean that the

214 Case T-256/07 People’s Mojahedin Organization of Iran v Council [EU:T:2008:461] paras 46–47; Case T-53/12 CF Sharp Shipping Agencies v Council [EU:T:2012:578] paras 25–30; Case T-385/04 Valero Jordana v Commission [EU:T:2009:97] paras 76–78. 215 Case T-212/06 Bowland Dairy Products v Commission [EU:T:2009:419] paras 34–36, 44–45. 216 Case T-57/12 Good Luck Shipping v Council [EU:T:2013:410] paras 59–60. 217 Case T-2/99 T. Port v Council [EU:T:2001:186] para 57; Joined Cases T-346/02 and T-347/02 Cableuropa and Others v Commission [EU:T:2003:256] paras 109–111; Case C-578/11 P Deltafina v Commission (Italian raw tobacco cartel) [EU:C:2014:1742] paras 71–77. 218 CJ RoP, Art 120(c); GC RoP, Art 76(d). 219 CJ RoP, Art 127; GC RoP, Art 84.

Reply 459 a pplication creates a rigid framework for the litigation (cf para 4.105). However, the case law allows for some flexibility: a plea in law that constitutes an amplification of a plea made previously, whether directly or by implication, in the original application and is closely connected with it must be declared admissible. Moreover, arguments that in substance have a close connection with a plea raised in the application initiating the proceedings cannot be considered new pleas and may be raised at the stage of the reply or the hearing.220 The new arguments must be closely connected with an original plea. In practice, the key question is therefore to decide whether the new plea, claim or argument is sufficiently closely connected with one of the original pleas present in the application221 or is expressing them in different terms.222

4.236

Example: Aluminium Silicon Mill Products. In Aluminium Silicon Mill Products (ASMP), the applicant brought an action for annulment against the regulation of the Council imposing a definitive anti-dumping duty on imports of silicon originating in Russia. The applicant challenged the assessment of economic indicators by the Council and disputed that the Council could validly establish the material injury suffered by the Union industry by reason of the dumped imports. At the hearing, the applicant claimed that the Council was wrong in finding, in the contested regulation, that the Union industry’s market share had greatly decreased during the period under consideration. The Council claimed that this was a new argument which thus had to be dismissed as inadmissible. However, as the General Court observed, the applicant had already asserted in the application that the contested regulation had ignored the fact that the lowering of prices by the Union industry coincided with significant increases in that industry’s market share, which showed that normal market dynamics worked. Therefore, the more specific argument put forward at the hearing was closely connected with one of the pleas in law already present in the application and was considered to be an amplification of a pre-existing plea. Indeed, after having said in the application that the Union industry’s market share increased, the applicant could validly add at the hearing that the contested regulation was wrong in finding that that market share ‘greatly decreased’.223

4.237

Example: Romana Tabacchi. In this action for annulment brought against a cartel decision of the Commission, the applicant contested the Commission’s findings regarding the duration of the applicant’s participation in the infringement.224 The applicant submitted in the application that the Commission was wrong in considering that its participation in the cartel did not end on 5 November 1999 but lasted until the end of the infringement, that is, until 19 February 2002. In the reply, the applicant raised as new elements of its reasoning that two meetings in which it participated, held on 16 November 2001 and 8 January 2002, had no illegal content. The Commission objected that these claims constituted a new plea, raised at the stage of the reply,

4.238

220 Case T-195/00 Travelex Global and Financial Services and Interpayment Services v Commission [EU:T:2003:111] paras 33 and 34; Case T-107/04 Aluminium Silicon Mill Products v Council [EU:T:2007:85] paras 60–61; Case T-394/06 Italy v Commission [EU:T:2012:417] para 48; Case T-75/06 Bayer CropScience and Others v Commission [EU:T:2008:317] para 134; Case C-439/11 P Ziegler v Commission (Belgian removal services cartel) [EU:C:2013:513] para 46; Case T-709/14 Tri-Ocean Trading v Council [EU:T:2016:459] para 34. 221 Case T-231/99 Joynson v Commission [EU:T:2002:84] para 156; Case T-40/01 Scan Office Design v Commission [EU:T:2002:288] para 96; in the context of full jurisdiction: Case T-343/06 Shell Petroleum and Others v Commission (Dutch bitumen cartel) [EU:T:2012:478] paras 271–272; In the context of intellectual property: Case T-463/12 Popp and Zech v OHMI – Müller-Boré & Partner (MB) [EU:T:2014:935] paras 18–22. 222 C-341/06 P Chronopost and La Poste v UFEX and Others [EU:C:2008:375] paras 71–76. 223 Case T-107/04 Aluminium Silicon Mill Products v Council [EU:T:2007:85] paras 60–61. 224 Case T-11/06 Romana Tabacchi v Commission (Italian raw tobacco cartel) [EU:T:2011:560] paras 123–125.

460 Procedure in Direct Actions and suggested that they had to be dismissed as inadmissible. However, the General Court held that the applicant’s new submission constituted an amplification of the arguments developed by the applicant in answer to the arguments put forward by the Commission in its defence, and were thus admissible. (iv) New Pleas May be Raised if they are a Matter of Public Policy 4.239

Rationale. Some pleas in law or arguments must be examined by the EU Courts ex officio since they are a matter of public policy. In the context of actions for annulment, these are the grounds of annulment which pertain to the category of infringements of essential procedural requirements within the meaning of Article 263 TFEU (cf para 3.253 et seq). These illegalities may consist, among others, in the breach of the duty to give reasons, the breach of the rights of the defence, the inobservance of internal procedural rules or the breach of the right to participate in the decision making. Theoretically, a party may put forward such pleas or arguments for the first time at any stage of the procedure, since he merely draws the attention of the EU Courts to an illegality that the latter are entitled to discover and examine ex officio. Therefore, abstractly speaking, the strict conditions limiting the production of new pleas or arguments after the application do not apply to such pleas or arguments.

4.240

The duty to state reasons. The breach of the duty to state reasons may be indisputably put forward for the first time at any stage of the procedure – even as late as at the hearing. Such an illegality is also often raised by the EU Courts of their own motion.

4.241

Rights of the defence. The case law wobbles to some extent when it comes to the question of whether new pleas or arguments drawn from the breach of the rights of the defence may be freely put forward after the application at later stages of the procedure. The EU Courts recognised that the respect of the rights of the defence belongs to the essential procedural requirements,225 whose breach may be examined ex officio by them.226 This would imply that the applicant may rely on such pleas or arguments at any stage of the procedure as he may draw the attention of the Courts to such illegalities, to be examined by the latter of their own motion. On the other hand, the General Court ruled in several cases that a breach of the rights of the defence, which by its nature is individual, does not fall within the scope of an infringement of essential procedural requirements and must not be examined by the EU Courts of their own motion, meaning that the applicant may not raise such a plea in law at stages of the proceedings later than the application,227 unless he justifies the delay.

4.242

The other party must be given the opportunity to comment. If the EU Courts decide the dispute on a ground they have identified of their own motion, the parties should be heard.228 Therefore, in particular, if the Courts attribute such a decisive impact to an aspect of the case they examine ex officio, as a consequence of the applicant’s plea in law or argument put forward for the first time 225 Joined Cases T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211/97, T-216/97 to T-218/97, T-279/97, T-280/97, T-293/97 and T-147/99 Kaufring and Others v Commission [EU:T:2001:133] para 134. 226 Case C-89/08 P Commission v Ireland and Others [EU:C:2009:742] paras 52–55. 227 Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering and Others v Commission [EU:T:2004:221] para 425; Case T-349/03 Corsica Ferries France v Commission [EU:T:2005:221] para 77; Case T-23/09 CNOP and CCG v Commission [EU:T:2010:452] para 45. 228 Case C-89/08 P Commission v Ireland and Others [EU:C:2009:742] para 54. See also judgments of the European Court of Human Rights in Skondrianos v Greece (63000/00, 74291/01 and 74292/01) 18 December 2003, §29 and 30; Clinique des Acacias and Others v France (65399/01, 65405/01 and 65407/01) 13 October 2005, §38; Prikyan and Angelova v Bulgaria (44624/98) 16 February 2006, §42.

Reply 461 in the reply or later, they must always give an opportunity to the defendant to submit observations on that new plea or argument.229 Such observations may be given in the rejoinder if the new plea was raised in reply. However, if the plea was raised for the first time at the hearing, the Courts may keep the oral part of the procedure open (cf paras 4.351–4.352) and invite the other party to react in writing if they consider that an oral reaction at the hearing without the possibility for preparation is not appropriate from the point of view of the respect of the other party’s procedural rights.

4.2.4.3. New Evidence in the Reply or Later Production and offer of new evidence after the first exchange of pleadings is restricted. The Rules of Procedure of both EU Courts prescribe that evidence produced or offered must be submitted in the first exchange of pleadings.230 Where further evidence is produced or offered in the reply or in the rejoinder, the delay in the submission of such evidence must be justified. Both Rules of Procedure allow that, exceptionally, new evidence may be adduced later in the proceedings, before the closure of the oral part of the procedure, but, again, reasons must be given for the delay. The President231 must give the other parties an opportunity to comment on such evidence.232 (For the offer of evidence held by the other party, cf para 4.272.)

4.243

CJ RoP. The relevant provisions in the CJ RoP read as follows:

4.244

Article 120 Content of the application An application of the kind referred to in Article 21 of the Statute shall state: … (e) where appropriate, any evidence produced or offered. … Article 128 Evidence produced or offered 1. In reply or rejoinder a party may produce or offer further evidence in support of his arguments. The party must give reasons for the delay in submitting such evidence. 2. The parties may, exceptionally, produce or offer further evidence after the close of the written part of the procedure. They must give reasons for the delay in submitting such evidence. The President may, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, prescribe a time limit within which the other party may comment on such evidence.

GC RoP. The relevant provisions in the GC RoP are the following: Article 85 Evidence produced or offered 1. Evidence produced or offered shall be submitted in the first exchange of pleadings. 2. In reply or rejoinder a main party may produce or offer further evidence in support of his arguments, provided that the delay in the submission of such evidence is justified. 3. The main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed or before the decision of the General Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified. 229 Case C-549/12 P Germany v Commission (ERDF) [EU:C:2015:412] paras 92–93, where the Commission adopted the contested decision out of time, which was qualified as a breach of essential procedural requirement. See also Case C-530/12 P OHIM v National Lottery Commission [EU:C:2014:186] para 54. 230 CJ RoP, Art 120(e); GC RoP, Arts 76(f) and 85(1). 231 cf paras 1.36 and 1.61. 232 CJ RoP, Art 128; GC RoP, Art 85.

4.245

462 Procedure in Direct Actions 4. Without prejudice to the decision to be taken by the General Court on the admissibility of the evidence produced or offered pursuant to paragraphs 2 and 3, the President shall give the other parties an opportunity to comment on such evidence.

4.246

Examples – no successful justification. In Italy v Commission (EAGGF), the applicant submitted a large volume of new evidence in an annex to the reply and also later on in the proceedings, in an annex to its response to the written questions of the General Court. The Court pointed out that both sets of evidence were already available at the time of the filing of the application and the applicant did not produce any justification for the delay in submitting them. Therefore, it dismissed the evidence at issue as inadmissible.233 Evidence produced at the hearing, without any justification of the delay in the submission, was rejected by the General Court as inadmissible under Article 85(3) of the GC RoP in Slovenia v Commission (EAGGF).234 In AF Steelcase, the General Court found that the mere fact that the applicant received the evidence from the defendant shortly before the hearing was not an acceptable justification for the late submission of that evidence, which took place at the hearing. In fact, the applicant only requested the said evidence from the defendant after the closure of the written part of the procedure, although it could have done so earlier, thus the delay in the submission was due to the applicant’s late action.235

4.247

Example – successful justification. It transpires from the applicable provisions of the Rules of Procedure and the above case law that possibilities of justifying the late submission of evidence are rather limited. The strongest reason is clearly that the applicant was unable to obtain the evidence earlier in the procedure. In Serrano, the applicants succeeded in giving reasons for submitting evidence after the closure of the written part of the procedure by showing that the document at issue was drawn up by the defendant institution after that closure.236

4.248

Evidence in rebuttal and amplification of evidence in the reply. The applicant is allowed to react in the reply to the arguments and evidence submitted by the defendant in the defence. Therefore, as an exception from the rules laid down in Article 85 of the GC RoP, Article 92(7) of the GC RoP provides that ‘Evidence may be submitted in rebuttal and previous evidence may be amplified’. The applicant may thus adduce fresh evidence at the stage of the reply in reaction to the defence; however, it is advised to explain why such evidence is ‘evidence in rebuttal’ or ‘amplification of evidence’ so that the General Court allows it.237 In this respect, the EU Courts ruled that the applicant was not allowed to offer evidence in rebuttal in response to evidence annexed by the Commission to its defence where the Commission’s evidence had already been referred to in the contested decision. Nothing actually prevented the applicant from offering its preferred counter-evidence in the application.238 This case law seems to imply that the mere realisation of the relevance of some additional evidence – available but not submitted at the time of bringing the action – is not an acceptable justification for the late production of evidence.

4.249

New evidence after a plea of inadmissibility. Another specific situation where the applicant may furnish new evidence after the application is where the defendant raises a plea of

233 Case T-394/06 Italy v Commission (EAGGF) [EU:T:2012:417] para 45. 234 Case T-667/14 Slovenia v Commission (EAGGF) [EU:T:2016:34] para 16. 235 Case T-652/14 AF Steelcase v EUIPO [EU:T:2016:370] paras 30–32. 236 Case T-47/05 Angé Serrano and Others v Parliament [EU:T:2008:384] para 58. 237 See, eg the General Court’s appraisal in Case T-189/08 Forum 187 v Commission [EU:T:2010:99] paras 64–66. 238 Case C-185/95 P Baustahlgewebe v Commission [EU:C:1998:608] paras 67–75; Case T-303/02 Westfalen Gassen Nederland v Commission [EU:T:2006:374] paras 188–191.

Rejoinder 463 inadmissibility. Such new evidence may be annexed to the observations of the applicant to the plea of inadmissibility,239 the rationale being that, at the time of lodging the application, the applicant was unaware of the circumstance that the admissibility of his action would be questioned.240

4.2.4.4. Actions by the EU Courts after Receiving the Reply Setting the deadline for the rejoinder. Shortly after receiving the reply, the Registries of the EU Courts serve it on the defendant and set a deadline for him to submit the rejoinder, which includes 10 days on account of distance. Usually, around six to seven weeks are allowed, though the deadline may be extended upon a duly justified request from the defendant.

4.250

4.2.5. Rejoinder 4.2.5.1. General Concept. The rejoinder is the second written pleading filed by the defendant and, bar the case where a statement in intervention still follows, the last brief submitted in the written part of the procedure. The defendant is given the opportunity to respond to the reply, as well as to supplement and refine his argumentation put forward in the defence.241 The rules and recommendations (volume, structure, etc) relating to the rejoinder are identical to those for the reply (cf paras 4.221–4.248).242 Upon receiving the rejoinder, the EU Courts close the written part of the procedure.

4.251

Last written pleading. Since the rejoinder is the last brief submitted during the written part of the procedure, the defendant may be tempted to raise some of his best arguments in the rejoinder for the first time and adduce further evidence, knowing that the applicant will have no more chance to react in writing and that speaking time at the hearing will be limited. Such techniques might be unsafe though: the defendant is also bound by the rule that all pleas in law and evidence must be present in the first pleading, that is, in the defence (cf paras 4.227 et seq and 4.253–4.254).

4.252

4.2.5.2. New Pleas in Law and New Evidence in the Rejoinder New pleas in law in the rejoinder. New pleas or arguments which are not based on new matter and are not an expansion of an original plea present in the defence will be dismissed as inadmissible.243 Without prejudice to the decision to be taken by the EU Courts on the admissibility of the new pleas in law, the Court of Justice may,244 and the General Court must, give the other parties an opportunity to respond to those pleas.245 This may be in the form of a measure of organisation of procedure, in which the EU Courts invite the applicant to submit his observations on the new plea.

239 See

GC RoP, Art 130(4). of 15 May 2013 in Case T-413/12 Post Invest Europe v Commission [EU:T:2013:246] para 21. PR, paras 129–130. 242 CJ RoP, Art 126; CJ PD, para 17; GC RoP, Art 83; GC PR, paras 129–130. 243 Case T-493/10 Persia International Bank v Council [EU:T:2013:398] para 43. 244 CJ RoP Art 127(2). 245 GC RoP, Art 84(3). 240 Order

241 GC

4.253

464 Procedure in Direct Actions 4.254

New evidence in the rejoinder. The defendant is allowed to submit fresh evidence in the rejoinder only if the delay is justified or if it qualifies as evidence of rebuttal. Importantly, not only fresh evidence adduced in the reply but also factual allegations made in the body text of the reply may be rebutted by additional evidence.246

4.255

New evidence in the rejoinder – how can the applicant react? As already mentioned in the context of the reply (cf para 4.243), the GC RoP prescribe that evidence produced or offered must be submitted in the first exchange of pleadings; later submissions must be justified.247 Evidence is, however, often submitted in the rejoinder in reaction to the applicant’s new arguments or fresh evidence presented in the reply, as the defendant’s evidence of rebuttal. This may leave the applicant in a somewhat delicate situation: while the GC RoP prescribe that the President of the Chamber must give the other party an opportunity to comment on evidence submitted after the close of the written procedure, there is no such obligation on the President as regards new evidence submitted in annex to the rejoinder.248 The applicant thus has no formal opportunity to react in writing. Still, applicants often attempt to comment on evidence submitted in the rejoinder in their responses to the written questions asked by the General Court or in a separate (unsolicited) document. This usually meets sharp objection from the defendants, who, as a rule, request the General Court to remove those comments from the file. The General Court might find itself in a grey zone where it needs to balance considerations based on the very text of the GC RoP, procedural equity and the rights of the defence of the defendant, who should have the final word also in the exchange of written submissions. The General Court may, however, decide rather freely. If it prefers to allow those comments, it might state that it could have anyway asked for the opinion of the applicant on the new evidence as a measure of organisation of procedure, and keep the comments on file.249 If it prefers to discard the comments, it may state that they were unsolicited observations not foreseen in the GC RoP and so must not be put on file.250

4.2.5.3. Actions Taken by the EU Courts upon Receiving the Rejoinder 4.256

Closure of the written part of the procedure. After the receipt of the rejoinder, the Registries send a notification to the parties informing them about the closure of the written part of the procedure.

4.257

Further handling of the case. Once the Judge-Rapporteur receives the rejoinder from the Registry, the analysis of the case begins with the drafting of the preliminary report.

4.2.6. Preliminary Report 4.258

Concept. The preliminary report is a detailed analysis of all the factual and legal issues raised by the case, presented by the Judge-Rapporteur, respectively, to the general meeting of the Court of Justice and to the Chamber of the General Court to which the case is assigned.251 It is a 246 GC RoP, Art 92(7). See Case T-540/08 Esso and Others v Commission (candle wax cartel) [EU:T:2014:630] paras 63–66 and 77–79. 247 GC RoP, Arts 76(f) and 85(1). 248 GC RoP, Art 85. 249 Case T-540/08 Esso and Others v Commission (candle wax cartel) [EU:T:2014:630] paras 56–62. 250 Under GC PR, para 86, ‘The Registrar shall refuse to enter in the register and to place on the case-file procedural documents and, where appropriate, items which are not provided for by the Rules of Procedure’. 251 CJ RoP, Art 59(1); GC RoP, Art 87(1).

Preliminary Report 465 c onfidential internal document drawn up in order to prepare the decision on the case, insofar as the Judge-Rapporteur makes proposals on how to rule on pleas in law and identifies outstanding legal and factual questions252 (cf paras 1.44 and 1.67).

4.2.6.1. Timing Timing. Both Rules of Procedure merely indicate that ‘when the written part of the procedure is closed, the President [of the Chamber] shall fix a date on which the Judge-Rapporteur is to present a preliminary report to the … Court’.253 In addition, the GC RoP foresees that the General Court deals with the cases in the order in which they become ready for examination.254 In practice, the time when the case becomes ‘ready for examination’ is when the last written pleading, which is usually the rejoinder,255 is received by the Judge-Rapporteur. The latter thus learns the final position of each party on each issue. Both Courts set internal and non-binding time frames for the preparation of preliminary reports, the length of which depends on the type of the proceedings. Moreover, both Rules of Procedure foresee that the Courts may decide to deal with a case under expedited procedure (cf Section 5.3.2. Expedited Procedure) or to give priority to it over other cases (cf Section 5.3.3. Priority Treatment).256 Such decisions are nonetheless quite rare in practice. It is also worth mentioning that both Courts have a practice to assign related cases (affaires connexes) – for instance, actions for annulment brought by several applicants against the same cartel or State aid decision of the Commission – to the same Judge-Rapporteur, on grounds of efficiencies of scale and of keeping factual appraisal coherent across the related cases. These cases must therefore be handled one after the other, even if they become ready for examination at approximately the same time. This implies that, in these situations, it is not possible to present the preliminary reports within the target time frame in all the related cases.

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4.2.6.2. Content Different roles in the proceedings before the Court of Justice and the General Court. The preliminary reports drafted at the General Court are usually longer than in cases before the Court of Justice. That is due to two differences. First, in direct actions brought before the General Court, the latter needs to examine a large number of factual allegations made by the applicant. It requires that the Judge-Rapporteur carefully analyses related evidence and counter-evidence. In contrast, in inter-institutional litigation and in infringement actions, brought before the Court of Justice as direct actions, a decision on the case usually implies less factual analysis. Facts are not established in the other two main types of cases heard by the Court of Justice, that is, preliminary rulings (cf Chapter 4.5. Procedure in Preliminary Rulings) and appeal proceedings (cf Chapter 4.4. Procedure in Appeals). Secondly, the draft decision of the Court of Justice, whether judgment or order, is in most of the important cases preceded by an Opinion of the Advocate General, who would provide a thorough analysis of all relevant matters (cf paras 1.45–1.46). Conversely, there

252 CJ RoP, Art 59(2); GC RoP, Art 87(2). 253 CJ RoP, Art 59(1); GC RoP, Art 87(1). 254 GC RoP, Art 67(1). There are no corresponding rules in the CJ RoP. 255 The last written pleading is usually the rejoinder, or, if there is no second exchange of pleadings, the defence. Where the defendant raised a formal plea of inadmissibility, the last written pleading is the observations of the applicant on the plea of inadmissibility. In the case of intervention, the last written pleading may be the last reply to the statement in intervention. 256 CJ RoP, Art 53(3); GC RoP, Art 67(2).

4.260

466 Procedure in Direct Actions is no such Opinion in the proceedings before the General Court (cf para 1.50),257 which means that the preliminary report is the sole precursor to the draft judgment or order. Therefore, it must provide an exhaustive analysis on the written pleadings and contain the examination of all factual and legal issues so that the Chamber may take informed actions at the hearing and at the deliberations. 4.261

Proposal on the formation that hears the case. Both Rules of Procedure provide that the preliminary report must contain a proposal regarding the formation that hears the case.258 In the case of the Court of Justice, the choice is between Chambers of three or five Judges, the Grand Chamber and a full Court. The last two formations are chosen if the difficulty or the importance of the case requires so,259 the most frequent formation being a Chamber of five Judges (cf paras 1.32–1.34). At the General Court, the usual formation is a Chamber of three Judges. The proposal to hear the case in a Chamber of five Judges – or, exceptionally, by the Grand Chamber or by a single Judge – requires justification. An extended formation grants more authority to the upcoming judgment and is often chosen where case law needs to be formulated on new and important matter (cf paras 1.55–1.56). The GC RoP of 2015 also allows for the case being heard by a single Judge; however, this option is used in only a small number of cases (cf para 1.57).

4.262

Measures of organisation of procedure. The preliminary report may contain proposals regarding written questions to be put to the parties, invitations to produce materials and requests to the parties to concentrate on certain issues at the hearing as measures of organisation of procedure (cf para 4.277).

4.263

Measures of inquiry. The Judge-Rapporteur may also propose measures of inquiry, which, in the case of the General Court, are almost invariably orders to produce materials. Under the new GC RoP of 2015, which codified pre-existing practice, the General Court must first ‘invite’ the party to adduce evidence as a measure of organisation of procedure. It is only after the objection to the production of the materials by the party (usually the defendant) that the General Court orders its submission through a measure of inquiry. That objection is, however, usually contained in the response of the party to the measures of organisation of procedure and is therefore not yet known by the General Court when the preliminary report is presented. This implies that proposals for measures of inquiry are very rare in preliminary reports prepared at the General Court.

4.264

Other proposals. In the preliminary report, the Judge-Rapporteur takes a position on whether the oral part of the procedure is not necessary,260 and, in proceedings before the Court of Justice, on whether the Court may dispense with an Opinion of the Advocate-General.261

4.2.6.3. The Report for the Hearing 4.265

Current practice at the General Court. As of 2012, the report for the hearing only exists in proceedings before the General Court, albeit the new GC RoP of 2015 no longer makes reference to it.262 It is also drawn up by the Judge-Rapporteur and is submitted to the Chamber along with the preliminary report. It is sent to the parties in preparation for the oral hearing (cf para 4.322). 257 The GC RoP make it possible for a Member of the General Court to act as Advocate General; however, this possibility has not been used since 1992. 258 CJ RoP, Art 59(2); GC RoP, Art 87(2). 259 CJ RoP, Art 60. 260 CJ RoP, Art 59(2); GC RoP, Art 87(2). 261 CJ RoP, Art 59(2). 262 An explicit reference was made to the report for the hearing at Art 35(5) of the old GC RoP of 1991.

Measures of Organisation of Procedure and of Inquiry 467

4.2.6.4. Actions by the EU Courts Decisions taken by the EU Courts. Once the Judge-Rapporteur presents the preliminary report to the respective Courts, the latter take the decisions regarding the procedural proposals contained in that report.263 The Courts may decide to arrange for an oral hearing, or wait for the request of the parties in this regard (cf paras 4.311–4.319). The usual practice is to rule without a hearing if the action is to be dismissed as inadmissible, and there is also a possibility to rule on the substance without a hearing.264

4.266

Court of Justice. The Court of Justice may only set the date of the hearing once the measures of inquiry are completed.265 If there are no such measures decided by the general meeting of the Court of Justice, the latter may open the oral part of the procedure by setting the date for the hearing. Written questions and other measures of organisation of procedure, as well as measures of inquiry, are communicated to the parties.

4.267

General Court. The preliminary report and the report for the hearing are thoroughly discussed by the Judges who sit with the Chamber at the preliminary meeting (conférence de chambre). The written questions and other measures of organisation of procedure, as well as the measures of inquiry suggested by the Judge-Rapporteur, must be approved by the Chamber. The Chamber may also propose other measures. Unlike the CJ RoP, the GC RoP does not prescribe that the oral part of the procedure may only be opened only after the completion of the measures of inquiry, and the General Court rarely prescribes such measures at this stage (cf para 4.263). The General Court usually opens the oral part of the procedure at the conférence de chambre or shortly thereafter, by setting the date for the hearing. Usually, around 10–12 weeks are left for the parties to prepare. If the General Court decides to rule without a hearing, the next step is drafting the order or judgment closing the case, possibly after the reception of the responses by the parties on written questions related to admissibility or to substantive issues.

4.268

4.2.7. Measures of Organisation of Procedure and of Inquiry 4.2.7.1. Common Rules Legal sources. Article 24 of the Statute provides that the EU Courts ‘may require the parties to produce all documents and to supply all information which the [Courts] consider desirable’ and that the Courts may also request Member States, and institutions or bodies that are not part to the procedure, to supply information. Apart from these core rules, Chapter 7 of the CJ RoP266 and Chapter 6 of the GC RoP267 contain detailed provisions on measures of organisation of procedure and measures of inquiry.

4.269

Concept and differences between measures of organisation of procedure and of inquiry. Under the case law,

4.270

The purpose of measures of organisation of procedure is to ensure efficient conduct of the written and oral procedure and to facilitate the taking of evidence, and also to determine the points on which the

263 CJ

RoP, Art 59(2); GC RoP, Art 87(2). RoP, Art 53(2); GC RoP 106. 265 CJ RoP, Art 75. 266 CJ RoP, Arts 61–75. 267 GC RoP, Arts 88–104. 264 CJ

468 Procedure in Direct Actions parties must present further argument or which call for measures of inquiry, whereas the measures of inquiry are intended to prove the veracity of the facts alleged by one of the parties in support of its pleas in law.268

Measures of organisation of procedure are essentially written questions put to the parties, as well as invitations to produce materials and to concentrate on certain issues at the hearing.269 The purpose of these measures is to enable the EU Courts to obtain more information on the parties’ position on various factual and legal issues, to gather evidence, to deal with confidentiality issues and to focus the debate at the hearing on relevant questions (cf Subsection 4.2.7.2). By measures of inquiry, the Courts may order, apart from the production of materials, the personal appearance of the parties, oral testimony, the commissioning of an expert’s report and the inspection of a place or thing (cf Subsection 4.2.7.3).270 Measures of inquiry are thus exclusively focused on gathering evidence. An important difference is that measures of organisation are of an informal nature, the ‘invitation’ to produce documents not resulting in a binding obligation; conversely, where the production of a document is ordered through a measure of inquiry, the party must comply with the request. 4.271

Measures may be adopted at any time, but are usually issued between the closing of the written procedure and the oral hearing. The GC RoP explicitly provide that the ‘measures of organisation of procedure and measures of inquiry may be taken or modified at any stage of the proceedings either of the General Court’s own motion or on the application of a main party’.271 The Statute and the CJ RoP contain no limitation regarding timing, which means that the Court of Justice may also adopt such measures at any time during the proceedings. Clearly, the EU Courts attempt to gather all evidence before the hearing so that it can be communicated to the other party as well and that, consequently, both parties may express their views on the entirety of the proof gathered, which ensures compliance with the adversarial nature of proceedings in direct actions (cf para 4.276). The practice of the General Court is to issue measures of organisation of procedure after the closing of the written part of the procedure, once the oral part of the procedure has already been opened. The General Court sets the deadline for responses to be produced by the parties well before the oral hearing. If a party declines the invitation to produce materials, the General Court may request the same materials by a measure of inquiry (cf para 4.292).272 The deadline for submitting those documents in response to the measure of inquiry will still be set before the hearing. Sometimes, however, important and new aspects of the litigation surface shortly before or at the hearing. The General Court may keep the oral part of the procedure open after the end of the hearing (cf para 4.351) as an exception to Article 111 of the GC RoP and order the submission of additional materials or request the parties’ comments on some issues in writing.273 To that effect, the General Court may also reopen the oral part of the procedure (cf para 4.353).274

268 Case T-141/01 Entorn v Commission [EU:T:2005:10] paras 129–130; Case T-560/08 P Commission v Meierhofer [EU:T:2010:192] para 64. 269 CJ RoP, Arts 61–62; GC RoP, Art 89(3). 270 CJ RoP, Art 64; GC RoP, Art 91. 271 GC RoP, Art 88(1). 272 GC RoP, Arts 91(b)–(c) and 92(3). 273 T-670/15 Osho Lotus Commune v EUIPO [EU:T:2017:716] paras 13–17. The mere fact that the General Court gave the opportunity to the other party to comment on newly submitted materials does not imply that those new materials are admissible. For reopening of the oral procedure after the hearing, see also Case T-113/07 Toshiba v Commission [EU:T:2011:343] para 20 (old GC RoP of 1991). 274 GC RoP, Art 113.

Measures of Organisation of Procedure and of Inquiry 469 Measures may be proposed by a party (offer of evidence) – evidence in the possession of the other party may be requested. The EU Courts may decide to adopt measures of organisation of procedure and measures of inquiry not only on their own initiative, but also on the initiative of one of the parties. The GC RoP of 2015 streamlined and unified the somewhat divergent practice that existed before their adoption275 and introduced detailed rules in this regard in Article 88:

4.272

1. Measures of organisation of procedure and measures of inquiry may be taken or modified … on the application of a main party. 2. The application … must state precisely the purpose of the measures sought and the reasons for them. Where the application is made after the first exchange of pleadings, the party submitting that application must state the reasons for which he was unable to submit it earlier.

While only an application by the main parties is explicitly foreseen, interveners may also suggest such measures. The CJ RoP contain no parallel provision, but nothing in their text excludes that a party proposes to the Court of Justice to adopt a measure of organisation of procedure or of inquiry. Importantly, a party may ask the EU Courts to request the production of evidence which is in the other party’s possession or which is held by a Member State or an EU institution or body (cf para 4.275).276 In the General Court’s practice, the applicant often desires evidence to be submitted by the defendant EU institution or body, to which he has no or limited access. For instance, in competition cases, the applicant may wish to have access to the transcript of the oral testimony made by other cartel participants held by the Commission which contains the page numbering to which the contested decision refers (cf paras 4.293–4.294), or other documents submitted by other undertakings during the administrative procedure.277 In the case of restrictive measures, the applicant may want to use this possibility to obtain evidence from the defendant to which he did not get access earlier, as was exemplified in the PMOI case.278 The access to documents held by the other party under the GC RoP is examined in detail in Subsection 5.1.2.4. Obtaining Documents in the Procedure before the General Court. Novelties brought by the GC RoP of 2015. The new Article 88 of the GC RoP contains several novelties. As a difference from Articles 49 and 64 of the old GC RoP of 1991, such an offer of evidence is no longer a mere proposal or a preliminary issue not going to the substance of the case,279 but a formal application which is governed by specific rules. Such an application may also have as its subject the request of a measure of inquiry, and not only a measure of organisation of procedure, as was the case in the old GC RoP of 1991. This change is important in situations where the applicant wishes to obtain access to a confidential or sensitive document in the possession of the defendant institution or body. Furthermore, requesting the comments of the other party on the measure applied for is no longer necessary. Indeed, since the General Court always needs to first ‘invite’ the other party to produce the document in a measure of organisation of procedure, before ordering its production by a measure of inquiry,280 the comments and objections of that party are anyway received in reaction to that invitation, thus an explicit request for comments is superfluous. The new GC RoP also includes the clarification that the application for a measure to be adopted by the General Court – just like any other offer of evidence – must 275 V Luszcz, ‘Gunpowder for court battles: litigants’ access to EU institution documents’ (2012) Europäische Zeitschrift für Wirtschaftsrecht 488, 489–450. 276 See the combined provisions of Statute, Art 24 and GC RoP, Art 88. 277 Case T-464/04 Impala v Commission [EU:T:2006:216] paras 18–19. 278 Case T-284/08 People’s Mojahedin Organization of Iran v Council [EU:T:2008:550] paras 36 and 56–59. 279 V Luszcz, ‘Gunpowder for court battles: litigants’ access to EU institution documents’ (2012) Europäische Zeitschrift für Wirtschaftsrecht 488, 489. 280 GC RoP, Art 92(2).

4.273

470 Procedure in Direct Actions be made in the first exchange of pleadings. If the party makes such an application later, he must justify the delay (cf paras 4.196–4.197). 4.274

The application for documents must be justified. Under settled case law, the party requesting the production of materials by the other party must identify the documents requested and provide the Court with at least the minimum of information indicating the utility of those documents for the purposes of the proceedings.281

4.275

Measures may be addressed to a third entity not involved in the litigation. Article 24 of the Statute foresees that ‘the [Courts] may also require the Member States and institutions, bodies, offices and agencies not being parties to the case to supply all information which the [Courts consider] necessary for the proceedings’. This implies that measures of organisation of procedure and of inquiry may also be addressed to these entities,282 either on the initiative of the EU Courts or further to the proposal made by a party.

4.276

Adversarial proceedings. Under the adversarial principle, applicable in direct actions, the EU Courts may take into consideration only those procedural documents and items which have been made available to the representatives of the parties and on which they have been given an opportunity of expressing their views.283 The principle implies that the materials produced in response to the Courts’ measures of organisation of procedure or of inquiry must be communicated to the other party.284 It is thus possible for a party to extract evidence from the other party by proposing to the Courts that they request it from the latter. The adversarial principle is precisely the reason why the defendant institutions or bodies at times decline the General Court’s invitation to produce evidence in response to a measure of organisation of procedure, if they consider that the evidence is confidential or sensitive. The same materials may nonetheless be requested by the General Court by a measure of inquiry, which must be complied with.285 The new GC RoP of 2015 brought an entire overhaul of the rules on handling confidential and sensitive evidence286 (cf 5.1.3. Treatment of Confidential and Sensitive Evidence by the General Court).

4.2.7.2. Measures of Organisation of Procedure 4.277

Concept. Under the Rules of Procedure of both EU Courts, measures of organisation of procedure are written questions put to the parties, as well as invitations to produce materials and to concentrate on certain issues at the hearing. The General Court may also summon the parties for 281 Case C-185/95 P Baustahlgewebe v Commission [EU:C:1998:608] para 93; Case T-411/06 Sogelma v EAR [EU:T:2008:419] para 152; Case T-208/16 Ranocchia v ERCEA [EU:T:2018:68] para 143. If the application is not justified or the party does not specify sufficiently the requested documents, the application will be dismissed as inadmissible. See Case T-281/16 Solelec and Others v Parliament [EU:T:2017:711] paras 165–168. 282 The GC RoP only refers to measures addressed to the parties. However, in Art 89(3), it mentions that ‘measures of organisation of procedure may, in particular, consist of ’, making the list non-exhaustive. At Art 91, in the context of measures of inquiry, it includes the clause ‘without prejudice to Article 24 … of the Statute’. The General Court has no power to address a measure of inquiry to an entity that is not a party to the proceedings (cf para 5.31). 283 GC RoP, Art 64. The CJ RoP does not contain any parallel provision. The settled case law nonetheless applies: Joined Cases C-42/59 and C-49/59 SNUPAT v High Authority [EU:C:1961:5] 84; Case C-480/99 P Plant and Others v Commission and South Wales Small Mines [EU:C:2002:8] para 24; Case C-199/99 P Corus UK v Commission [EU:C:2003:531] para 19; Case C-89/08 P Commission v Ireland and Others (exemption from excise duty on mineral oils) [EU:C:2009:298] paras 52–55. 284 Under GC RoP, Art 65(1), ‘procedural documents and items included in the file in the case shall be served on the parties’. 285 The refusal to produce materials underpinning the contested act may bring about the annulment of the act. See Case T-284/08 People’s Mojahedin Organization of Iran v Council [EU:T:2008:550] paras 72–79. 286 GC RoP, Art 103–105. GC RoP, Art 105(8) foresees an exception to the adversarial principle.

Measures of Organisation of Procedure and of Inquiry 471 a meeting.287 The purpose of these measures is to enable the Courts to obtain more information on the parties’ position on various factual and legal issues, to gather evidence and to deal with confidentiality issues. They are of informal nature, so, theoretically, the ‘invitation’ to produce documents may be declined if due justification is given. The responses and the materials are served on the other party. CJ RoP. The CJ RoP foresee a split of powers to adopt various measures of organisation of procedure. The Court of Justice may put questions to the parties to be answered in writing or at the hearing, as well as invite the parties to concentrate on certain issues at the hearing (NB: the preliminary report which contains the proposals of the Judge-Rapporteur regarding these measures is presented to the general meeting of the Court of Justice).288 On the other hand, the Judge-Rapporteur or the Advocate General may single-handedly decide to request the parties to submit information relating to the facts of the case or to produce documents. They may also send to the parties and to the interested persons referred to in Article 23 of the Statute289 questions to be answered at the hearing.290

4.278

GC RoP. Under the GC RoP, measures of organisation of procedure are prescribed by the General Court, which may entrust that task to the Judge-Rapporteur.291 The practice is that proposals regarding such measures are contained in the preliminary report and decided by the Chamber at the preliminary meeting (conférence de chambre).

4.279

Timing. Measures of organisation of procedure may be adopted at any time during the proceedings (cf paras 4.267–4.268). The deadline to answer the questions and submit the materials asked for by the EU Courts is usually set within two to three weeks. It includes the 10 days added on account of distance. Extension of the deadline may be requested in respect of the production of documents, but must be duly justified (for instance, by the time needed to obtain documents or to gather them if many items are requested).

4.280

Practice regarding written questions and requests for documents. These frequently applied measures of organisation of procedure are communicated to each party in the form of a list of questions and invitations to produce documents. The parties receive different questions, but some common questions may also be asked of both of them. The parties are often invited to clarify their position on certain factual and legal issues, either in writing or at the hearing. The EU Courts may also ask for observations on the bearing of new judgments handed down after the submission of the last written pleading by the party. Another usual part of such measures are the invitations to produce documents, either on the Courts’ own initiative or because one party suggested in his written pleadings that the Courts invite the other party to submit certain materials.

4.281

Oral part of the procedure. Under the GC RoP, the oral part of the procedure is opened after the discussion of the preliminary report by the Chamber,292 thus the hearing is merely one component of the oral part of the procedure.293 Since measures of organisation of procedure are usually adopted after the opening of the oral part of the procedure, they are technically included in that oral part. Indeed, they display certain features of a dialogue between the General Court and

4.282

287 CJ

RoP, Art 61–62; GC RoP, Art 89. RoP, Art 61. Art 23 concerns preliminary rulings, not direct actions. 290 CJ RoP, Art 62. 291 GC RoP, Art 90. 292 GC RoP, Art 87(3). 293 Under GC RoP, Art 106(1), ‘the procedure before the General Court shall include, in the oral part, a hearing’. 288 CJ

289 Statute,

472 Procedure in Direct Actions the parties. From the point of view of the parties, it is arguably more comfortable to receive and answer questions in writing, especially if the response requires a thorough analysis of data or written materials. It may happen that at the hearing, when the representative of a party receives questions on data or on facts, she or he asks the General Court to authorise a response in writing, which may in turn prevent the Court from closing the oral part of the procedure at the end of the hearing. From the General Court’s point of view, the risk of such a delay in the procedure further emphasises the importance of seeking information in writing prior to the hearing, in the form of measures of organisation of procedure. 4.283

Orientation for the hearing. The content of the written questions often allows the representatives of the parties to infer which issues will be the subject of the most intense debate at the hearing, even if the EU Courts do not formally ask the parties to focus on certain issues at the hearing (cf para 4.308).

4.284

Response to the written question may not contain additional elements. If the response produced by the party goes beyond what the EU Courts asked, the latter may remove the irrelevant parts on their own initiative or on the other party’s request (cf paras 4.70, 4.72 and 4.301).

4.2.7.3. Measures of Inquiry 4.285

Concept. The measures of inquiry are intended to prove the veracity of the facts alleged by one of the parties in support of his pleas in law.294 They are prescribed by order, which sets out the facts to be proved.295 Evidence may be submitted in rebuttal and previous evidence may be amplified.296 Under the relevant provisions of the Rules of Procedure,297 measures of inquiry may consist of the personal appearance of the parties, a request for information and production of documents, oral testimony, the commissioning of an expert’s report or an inspection of the place or thing in question.

4.286

Procedure. Under the CJ RoP, the Judges decide at the general meeting whether a measure of inquiry is necessary, unless the case has already been assigned to a formation of the Court of Justice, in which case the decision is taken by that formation. The Advocate General must be heard.298 The GC RoP do not contain parallel rules; the practice is that the measures of inquiry are decided by the Chamber that hears the case.

4.287

Discretionary power of the Courts. The EU Courts have a wide discretion regarding the choice of measures of inquiry299 and the parties have no means of constraining them to adopt a particular measure. The General Court is the sole Judge of any need to supplement the information available to it.300

4.288

Practice. Only requests for information or production of documents are frequent. The EU Courts hold only one hearing in a case. It is therefore in the common interests of the parties and the

294 Case T-141/01 Entorn v Commission [EU:T:2005:10] paras 129–130; Case T-560/08 P Commission v Meierhofer [EU:T:2010:192] para 64. 295 CJ RoP, Art 64(1); GC RoP, Art 92(1). 296 CJ RoP, Art 64(3); GC RoP, Art 92(7). 297 CJ RoP, Art 63–74; GC RoP, Art 91–104. 298 CJ RoP, Art 63, 64(1). 299 Order of 16 December 2004 in Case C-222/03 P APOL and AIPO v Commission [EU:C:2004:818] para 67. 300 Case C-260/05 P Sniace v Commission [EU:C:2007:700] para 77; Joined Cases T-144/07, T-147/07, T-149/07, T-150/07 and T-154/07 ThyssenKrupp Liften Ascenseurs and Others v Commission (elevators cartel) [EU:T:2011:364] para 151.

Measures of Organisation of Procedure and of Inquiry 473 Courts to have all relevant information on file before the hearing, which underscores the importance of the written requests for information or for the production of materials. Other forms of measures of inquiry are rare. The General Court has repeatedly rejected the request to commission an expert’s report by merely stating that the Court file contained sufficient information to rule on the case.301 If the party desires to rely on an expert’s opinion or on the testimony of a witness, it is advised to furnish them in written form as an annex to the application or the defence. In case such evidence is submitted at a later stage of the procedure, the delay must be justified (cf para 4.243). The measure of inquiry consisting in the inspection of a place or a thing is not applied in practice. (i) Personal Appearance of the Parties General. The EU Courts may summon parties to appear in person302 to provide explanations. The summoned party is not heard on oath, unlike witnesses.303 Unlike at the hearing, both the party and the representative may take the floor, given the informal nature of these meetings.

4.289

Practice. This measure of inquiry is rarely ordered. Existing examples include the situation where the General Court intended to facilitate an amicable settlement,304 which necessarily implies a personal contact between the parties and the Court aside from the hearing. Another example is the Impala case, in which the parties were summoned for an informal meeting to discuss the possibility of dealing with the case under an expedited procedure and issues related to the confidential treatment of materials.305

4.290

(ii) Request for Information or Materials General. Under Article 24 of the Statute, the EU Courts may request the parties, as well as Member States and EU institutions and bodies that are not parties to the case, to produce all information that the Courts consider necessary for the proceedings. A formal note is taken of any refusal.306 The Court of Justice may order the production of information or documents by parties to the case and by the listed entities that are not parties to the case by a measure of inquiry.307 The power of the General Court is more limited: it may only make such requests to the parties308 (however, it may still ask for information or materials from an entity not party to the case by a measure of organisation of procedure). The request for documents is issued in a procedural order addressed to the party or entity which holds the information or material. Such orders are generally not reported or published, but are referred to in the part of the final judgment or order closing the case under the heading ‘Procedure’.309 The EU Courts may only order materials which are relevant for the examination of the case. This may be given as a reason for the rejection of the application made by a party in which he asks the Courts to order the production of materials by the other party.310 301 Order of 16 December 2004 in Case C-222/03 P APOL and AIPO v Commission para 67; Case T-545/15 Pi-Design v EUIPO (PRESSO) [EU:T:2016:680] paras 14–15. 302 CJ RoP, Art 61(2)(a); GC RoP, Art 91(a). 303 Statute, Arts 28–29. 304 See Order of 29 January 1990 in Case T-59/89 Yorck von Wartenburg v Parliament [EU:T:1990:8] paras 6–8. 305 Case T-464/04 Impala v Commission [EU:T:2006:216] para 17. 306 Statute, Art 24. 307 CJ RoP, Art 64(2)(b). 308 GC RoP, Art 91(b). 309 See, eg Case T-112/07 Hitachi and Others v Commission (gas insulated switchgear cartel) [EU:T:2011:342] para 19. 310 Order of 18 November 1997 in Case T-367/94 British Coal Corporation v Commission [EU:T:1997:179] para 24.

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474 Procedure in Direct Actions 4.292

Measure of inquiry is only ordered by the General Court if the measure of organisation has not been complied with. The GC RoP of 2015 codified the practice that already prevailed before their adoption, under which the General Court, when in need of additional information, first invited the party to reply to written questions or to furnish documents through a measure of organisation of procedure, and only adopted a binding measure of inquiry to that end if the invitation had not been complied with.311 The new provisions in this regard are laid down in Article 92(3) of the GC RoP: A measure of inquiry referred to in Article 91(b) [request to a party for information or for production of materials] may be ordered only where the party concerned by the measure has not complied with a measure of organisation of procedure previously adopted to that end, or where expressly requested by the party concerned by the measure and that party explains the need for such a measure to be in the form of an order for a measure of inquiry.

The normal procedure implies that the materials received by the General Court are communicated to the other party in application of Article 64 of the GC RoP, by virtue of the adversarial nature of the proceedings (cf para 4.276). However, exceptions had to be made for situations where other important considerations militated against the communication of materials to the other party. Such situations often occur in competition and fund-freezing cases, and are examined below. 4.293

Special measures of inquiry – Hitachi. The GC RoP of 2015 also introduced detailed rules for situations where the materials requested from the defendant institution or body may not be furnished to the applicant but may be inspected by the applicant’s representatives (who usually sign undertakings of confidentiality) at the Registry. Such measures had already been adopted before the entry into force of the new GC RoP of 2015, for instance, in the Hitachi case.312 The existing practice was codified, and specific rules are now laid down in Article 92(3) of the GC RoP: The order prescribing the measure of inquiry may provide that inspection by the parties’ representatives of information and material obtained by the General Court in consequence of that order may take place only at the Registry and that no copies may be made.

While of general application, these rules are tailor-made for competition cases, where applicants may either be parties who had access to file or third parties who had no access to file during the administrative procedure. Such a measure of inquiry is suitable to handle the situation where the General Court or the applicant wishes to verify information regarding the oral testimonies (leniency statements or even written evidence submitted in the context of leniency) of other undertakings made during the investigation by the Commission in cartel cases. The Commission, as the defendant, usually resists the General Court’s invitation (issued in a measure of organisation of procedure) to produce the transcript of the oral statements, although in the contested decision it usually relies heavily on that evidence.313 In so doing, the Commission seeks to preserve the efficiency of its leniency programme. Indeed, if the Commission submitted those transcripts without any proviso, a hard copy would be furnished to the applicant by the General 311 See K Andová and E von Bardeleben, ‘La refonte du règlement de procedure du Tribunal de l’Union européenne: pour une efficacité juridictionnelle renforcée’ (2015/7) Europe étude 6, paras 33–34. 312 Order of 11 June 2010 in Case T-112/07 Hitachi and Others v Commission [not reported]. A reference to this procedural order has been made in Case T-112/07 Hitachi and Others v Commission (gas insulated switchgear cartel) [EU:T:2011:342] para 19. 313 The parties in such cases have had the possibility to access the leniency evidence in the premises of DG Competition during the administrative procedure.

Measures of Organisation of Procedure and of Inquiry 475 Court because of the adversarial nature of the proceedings. If the applicant thus received a copy of the transcript of those oral statements (outside the premises of the Commission or of the EU Courts), it might be ordered by a national court to produce it in actions for damages brought before that court by customers of the cartel participants against the latter (discovery procedure in some jurisdictions).314 The risk that customers of cartel participants would in such a way receive evidence proving the cartel might well deter undertakings from filing leniency applications and from submitting evidence regarding the cartel. It is therefore essential that the General Court does not furnish a hard copy of the transcript of the oral statements to the applicant itself, while its legal representatives may still study that evidence in this way.315 After the Hitachi case,316 the solution elaborated by the General Court was applied, inter alia, in Toshiba and a number of other cases,317 and is now expressly provided for in the section of Article 92(3) of the GC RoP quoted above. The General Court may thus order (by a measure of inquiry) that the defendant institution or body produces the materials in question by specifying that no copy will be furnished to the applicant, but the representatives of the latter may still inspect the documents at the Registry and take manual notes. This procedure allows the representatives to compare the transcript prepared by the Commission with their own transcript of the oral testimonies and verify the references made in the contested decision to the latter. On the other hand, since the applicant receives no hard copy of the transcript of the oral statements and other sensitive evidence, and the manual notes taken at the General Court’s Registry are covered by legal privilege, there is no risk that national courts, including those outside the EU, could order the evidence to which access was granted at the General Court’s Registry. The same procedure may apply for sensitive data of the parties that may need to be kept secret from a third-party applicant (eg in merger cases318). In such a case, the legal representatives of the applicant may have access to the evidence in question, which they are not authorised to disclose even to their client. Orders protecting business secrets – Timab. Another situation requiring special types of measures of inquiry is where the applicant asks the General Court to order the production of materials which contain sensitive business information on its competitors. Such was the case in Timab,319 where the applicant insisted on verifying the information on the basis of which the Commission 314 It should be noted that Art 6(6) of Directive 2014/104/EU of the Parliament and the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1) precludes that, for the purpose of actions for damages, national courts order a party or a third party to disclose leniency statements and settlement submissions. However, the directive only binds EU Member States, and not third countries, where customers might also bring damages actions against cartel participants. 315 The interest of the party in the transcript prepared by the Commission is explained by its need to verify the precise references to oral testimonies in the contested decision. At the access to file exercise that takes place during the administrative procedure before the Commission, the oral testimonies made by other undertakings are played from audio records and the party can make its own audio records. This process implies that the page numbering of the transcript of the party’s own audio record is unlikely to match the one of the Commission’s transcript. Since the Commission uses the page numbering of its own transcript in the references in the contested decision, it is important for the party to have access to the Commission’s transcript to be able to identify the sections in the oral testimony on which particular statements in the decision have been based. National courts may not request the party to produce the transcript of the oral testimonies, since they are assimilated to manual notes taken by the counsel and are thus covered by legal privilege. 316 Order of 11 June 2010 in Case T-112/07 Hitachi and Others v Commission [not reported]. A reference to this procedural order has been made in Case T-112/07 Hitachi and Others v Commission (gas insulated switchgear cartel) [EU:T:2011:342] para 19. 317 Order of 11 June 2010 in Case T-113/07 Toshiba v Commission [not reported]. A reference to this procedural order is made in Case T-113/07 Toshiba v Commission (gas insulated switchgear cartel) [EU:T:2011:343] para 20. For a more recent example, see Order of 12 June 2012 in Case T-551/08 H&R ChemPharm v Commission [not reported], referred to in Case T-551/08 H&R ChemPharm v Commission (candle wax cartel) [EU:T:2014:1081] para 18. 318 Case T-282/06 Sun Chemical Group and Others v Commission [EU:T:2007:203] para 37. 319 Case T-456/10 Timab Industries and CFPR v Commission [EU:T:2015:296].

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476 Procedure in Direct Actions concluded that another cartel participant was in a precarious economic situation which jeopardised its ability to pay, which led the Commission to reduce the fine imposed on that other participant. The applicant considered that it was also in a critical economic situation which was not taken into account by the Commission, and the refusal to grant a similar reduction to it was a breach of the principle of equal treatment. The General Court fully appreciated that, on the one hand, the applicant needed to inspect the materials which related to the economic situation of the other undertaking and, on the other hand, that business secrets about the economic weakness of another undertaking operating in the same market could not be communicated to the applicant. The resulting order requesting the Commission to produce documents thus contained the stipulation that the documents communicated to the applicant’s representatives could only be used for the purposes of the Court proceedings and that the documents and the figures contained therein should not be made public. Some documents which were not essential for the applicant’s reasoning or were too sensitive were sent back to the Commission and removed from the file.320 4.295

Confidential treatment of materials produced. The GC RoP of 2015 introduced several novelties regarding the treatment of confidential information contained in the responses to measures of inquiry.321 Crucially, where it is necessary to examine the confidentiality of certain information or material produced before the General Court, it shall not be communicated to that other party at the stage of such examination.322 The detailed provisions in this regard are examined in Section 5.1.3. Treatment of Confidential and Sensitive Evidence by the General Court. (iii) Request for Documents to Which Access has been Denied by an Institution

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A novelty introduced by the GC RoP of 2015. The GC RoP introduced a sui generis measure of inquiry for the situations where the applicant had already attempted to obtain a document from an institution or body, but his request was turned down by the latter. The new Article 91(c) of the GC RoP thus lists the ‘request of documents to which access has been denied by an institution [or body]’ as a measure of inquiry separate from the request for information or materials foreseen in Article 91(b). The main reason for the introduction of this provision was that a separate regime regarding the handling of evidence had to be put in place for actions for annulment against decisions of EU institutions in which the latter refused to give access to documents requested under Regulation 1049/2001.323 In these cases, the General Court often needs the institution documents for the assessment of the legality of the decision refusing access, and thus has to order their production. If only the general rules regarding measures of inquiry applied, the applicant could easily circumvent the refusal decision by simply challenging it before the General Court and waiting for the General Court to order the production of the relevant documents, since, in accordance with the adversarial principle,324 a copy of those documents would be furnished to him. The new, separate measure of inquiry introduced in Article 91(c) is complemented by Article 104 the GC RoP, which specifies the following: Where, following a measure of inquiry referred to in Article 91(c), a document to which access has been denied by an institution [or body] has been produced before the General Court in proceedings relating to the legality of that denial, that document shall not be communicated to the other parties. 320 Case T-456/10 Timab Industries and CFPR v Commission [EU:T:2015:296] paras 32–35. 321 GC RoP, Art 103–105. 322 GC RoP, Art 103(1). 323 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). 324 GC RoP, Art 64.

Measures of Organisation of Procedure and of Inquiry 477 While the above rules are tailor-made for actions for annulment in which the EU institution rejected the request for access to documents under Regulation 1049/2001, they may also apply in any other fields, where the applicant challenges an act of an institution or body or seeks damages, by claiming that his rights of the defence were breached because the institution or body did not provide access to certain documents in the administrative procedure leading up to the contested decision. (iv) Oral Testimony by Witnesses General. The EU Courts may summon witnesses as a measure of inquiry in order to establish facts pertaining to the case. The procedural order in this regard must contain the indication of the facts to be established and which witnesses are to be heard in respect of each of those facts.325 The examination of the witness usually takes place at the oral hearing. The witness shall give his evidence to the Courts, the parties having been given notice to attend. After the witness has given his evidence, the President of the Chamber, the other Judges and the Advocate General may put questions to him, also on the initiative of the other party. Subject to the control of the President, questions may be put to witnesses by the representatives of the parties.326 The Rules of Procedure contain some more detailed rules.327

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Practice. Summoning witnesses is an extremely rare form of measure of inquiry. The few existing examples include situations where the reconstruction of the content of oral conversations was central to the case.328 It is telling that the CJ PD and the GC PR only contain scant references to witnesses, whereas they amply explain how documentary evidence shall be submitted. The EU Courts almost never summon a witness on their own initiative and usually reject offers of evidence consisting in hearing witnesses by considering that materials in the file are sufficient to rule on the case,329 or on other grounds.330 If the party wishes to rely on the testimony of a person, it is advised to annex a written testimony or a transcript of an oral testimony to the first written pleading as documentary evidence (cf para 4.288).331

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(v) Expert’s Report General. The EU Courts may order that an expert’s report be obtained. The order appointing the expert defines his task and sets a time limit within which he is to submit his report. After the expert has submitted his report and that report has been served on the parties, the Courts may order that the expert be examined, the parties having been given notice to attend. The examination of the expert normally takes place at the hearing. The President of the Chamber, the Judges sitting with the Chamber and the Advocate General may put questions to the expert, and so may

325 CJ RoP, Art 66; GC RoP, Art 93. 326 CJ RoP, Art 67; GC RoP, Art 94. 327 CJ RoP, Arts 68–69, 72–73; GC RoP, Arts 95, 97–100. 328 Case T-172/01 M v Court of Justice [EU:T:2004:108] para 29; Case T-562/12 Dalli v Commission [EU:T:2015:270] para 33. 329 Case T-59/07 Polimeri Europa v Commission (butadiene cartel) [EU:T:2011:361] paras 318–319; Joined Cases T-144/07, T-147/07, T-149/07, T-150/07 and T-154/07 ThyssenKrupp Liften Ascenseurs and Others v Commission (elevators cartel) [EU:T:2011:364] paras 150–154. 330 Case T-34/08 Berliner Institut v Commission [EU:T:2011:504] para 47; Case T-612/16 PS v EIB [EU:T:2018:483] paras 63–66. 331 See the solution chosen by the applicant in Case T-11/06 Romana Tabacchi v Commission [EU:T:2011:560] para 55.

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478 Procedure in Direct Actions the representatives of the parties, subject to the control of the President.332 The Rules of Procedure also contain some more detailed rules.333 4.300

Practice. As in the case of witnesses, the EU Courts hardly ever resort to expert opinions in practice.334 There is no standing body of experts which could assist the EU Courts, although the need for experts is sometimes felt, for instance in State aid cases which require a thorough knowledge of national tax and accounting rules. Offers of evidence in which the party suggests commissioning an expert’s report are usually dismissed; as a justification for dismissal, the General Court may simply state that it has wide discretion regarding the choice of measures of inquiry and that the court file contains sufficient information to rule on the case.335 On the other hand, nothing prevents the parties from submitting expert’s reports as documentary evidence.

4.2.7.4. Handling Incidents that May Occur at the Stage of Responses to Written Questions and Requests for Materials (i) Unsolicited Documents 4.301

Unsolicited documents or parts thereof are not put on file. The CJ PD make it clear that only the documents expressly provided for by the procedural rules may be lodged at the Registry.336 Similarly, the GC PR foresee that the Registrar shall refuse to enter in the register and to place on the case file procedural documents and, where appropriate, items which are not provided for by the GC RoP.337 It follows that unsolicited documents, such as supplementary proof offered out of time338 or explanatory notes, will not be put on file by the Registry. The GC PR also provide that where a party challenges the Registrar’s refusal to enter a procedural document or an item in the register and to place it on the case file, the Registrar must submit that issue to the President339 for a decision on whether the document or item in question is to be accepted.340 Documents not put on file are not served on the other party.341 If they had already been served but later removed from the file, the parties have to return them to the EU Courts (cf paras 4.70–4.72).

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Responses to written questions must be limited to the questions. It follows from the above rules that in their responses to the written questions, the parties may not stray away from the subject matter of those questions and their responses must be limited to them (cf para 4.72). These rules are relevant in practice especially because after the rejoinder, as a rule, there is no further possibility for the applicant to submit arguments in writing. Therefore, applicants sometimes try to seize the opportunity provided by the written question asked by the General Court (cf para 4.281) to put forward substantive arguments in the response in an attempt to refute the reasoning of the defendant contained in the rejoinder, which might even amount to raising a new plea in law by the applicant. The other party usually asks the General Court to remove such new arguments from the file. If the General Court grants the request, the response to the written 332 CJ RoP, Art 70; GC RoP, Art 96. 333 CJ RoP, Arts 71–73; GC RoP, Arts 97–100. 334 The few existing precedents include the civil service Case T-90/95 Gill v Commission [EU:T:1997:211] para 15. 335 Order of 16 December 2004 in Case C-222/03 P APOL and AIPO v Commission para 67; Case T-545/15 Pi-Design v EUIPO (PRESSO) [EU:T:2016:680] paras 14–15. 336 CJ PD, para 46. 337 GC PR, para 92. 338 T-670/15 Osho Lotus Commune v EUIPO [EU:T:2017:716] paras 13–17. 339 cf para 1.61. 340 GC PR, para 94. 341 CJ RoP, Art 48(1); GC RoP, Art 65(1).

Hearing 479 questions may be only put on file in part, insofar as it provides answers to the Court’s questions. Adducing unsolicited information may thus be an unsafe course of action for the party, since he might only learn from the judgment closing the case that some parts of his response to the written questions were not put on file, whereas he did not present that extra information at the hearing in the belief that his entire response was on file.342 Nevertheless, the General Court shows a great deal of common sense in such situations and may leave unsolicited parts of the response on file if it serves the preservation of the procedural rights of the party, especially if new evidence appeared in the rejoinder343 (cf para 4.255). Permission to comment in writing on the response of the other party. In order to avoid the rejection of a document because of its unsolicited nature, the party may ask the General Court to allow him to comment in writing on the response to the written questions submitted by the other party. Given that it may be advantageous for both the General Court and the parties to have all the relevant data and other detailed information on file before the hearing, there is a chance that the General Court will grant the request if it is duly justified. The main obstacle is usually the shortness of time. In most cases, the responses to the written questions are submitted just a few weeks before the hearing, thus the time left until the hearing may not be sufficient for an exchange of comments. It should be noted that the General Court has full discretion regarding the grant of the request; commenting on the other party’s response in writing does not pertain to the litigants’ procedural rights.

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(ii) New Pleas in Law New pleas in law may be raised in reaction to new facts contained in the reply to the written questions or request for documents. New facts justifying the submission of a new plea may also come to the knowledge of the applicant when he receives the response of the other party to a measure of organisation of procedure344 or to a measure of inquiry.345 Under the new rules introduced by Article 84 of the GC RoP of 2015, the main party concerned shall introduce the new pleas in law as soon as those matters come to his knowledge (cf para 4.227). Depending on the time left until the hearing, this provision may mean that the new plea has to be raised in writing ahead of the hearing. The CJ RoP contains no parallel provision.

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4.2.8. Hearing 4.2.8.1. Overview Place within the oral part of the procedure. The term ‘oral part of the procedure’ has a slightly different scope in proceedings before the Court of Justice and before the General Court. The oral part of the procedure is opened by the Court of Justice after the completion of the measures

342 See, by analogy, T-670/15 Osho Lotus Commune v EUIPO [EU:T:2017:716] paras 13–17. 343 Case T-540/08 Esso and Others v Commission (candle wax cartel) [EU:T:2014:630] paras 56–62. 344 Case C-259/96 P Council v De Nil and Impens [EU:C:1998:224] para 31; Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P, C-251/99 P, C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [ECLI:EU:C:2002:582] paras 369–371; Case T-210/01 General Electric v Commission [EU:T:2005:456] para 505. 345 Case C-137/92 P Commission v BASF [EU:C:1994:247] paras 59–60. The applicant learnt from the reply of the Commission to the Court’s order that the Commission did not possess any certified copy of the contested decision.

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480 Procedure in Direct Actions of inquiry.346 The CJ PD347 state that the oral part of the procedure consists of two distinct stages: the hearing and the presentation of the Opinion of the Advocate General. In proceedings before the General Court, the oral part of the procedure includes the measures of organisation of procedure and of inquiry adopted after the opening of that oral part (cf para 4.282) and the hearing, while, in practice, there is no Opinion of the Advocate General (cf para 1.50). 4.306

Purpose of the hearing. The hearing allows the parties to present their arguments orally to the Chamber that hears the case and allows the Judges to ask questions to the parties’ representatives and thus obtain a more complete picture on outstanding legal and factual issues. Before both EU jurisdictions, there is only one hearing, usually held on a single day.

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The hearing is optional, the main parties may request it. Under the CJ RoP of 2012 and the GC RoP of 2015, both Courts may dispense with the hearing even if they rule on the substance of the case. A main party or an interested person referred to in Article 23 of the Statute who wishes to be heard orally must submit a reasoned request for a hearing within three weeks from the reception of the notification of the closure of the written part of the procedure.348 In 2018, ‘721 hearings and meetings with simultaneous translation’ took place before the Court of Justice and the General Court, while 1769 cases were completed.349 In 2016, the Court of Justice alone held 270 hearings.350

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Orientation for the hearing. Before the hearing, the parties may receive some hints from the EU Courts regarding the subjects which will be at the centre of the debate. First, the Courts may formally ask the party to focus on a certain issue in his pleading as a measure of organisation of procedure.351 Secondly, the content of the written questions352 often allows the representatives of the parties to infer which issues might be the subject of oral questions asked by the members of the Chamber.

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Common hearing for several cases. The provisions on joinder353 allow the EU Courts to join cases for the purposes of the oral part of the procedure, which means that several cases are heard at the same oral hearing. Article 77 of the CJ RoP nonetheless provides that a common hearing may only be arranged if the cases are of the same nature (in line with the rule introduced by the CJ RoP of 2012 that only such cases can be joined), ie a direct action may not be joined with a preliminary ruling case for the purposes of the hearing.

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In principle, the hearings are public, but in camera hearing is possible. The hearing before the EU Courts is public (often journalists and student visitors attend). The planning of oral hearings is published on the Court’s website. However, the Courts, of their own motion or on application by the parties, may decide otherwise for serious reasons.354 The CJ RoP mentions, in particular, the security of the Member States or the protection of minors as grounds for an in camera hearing.355 The GC RoP foresees that a request submitted by a party for an in camera hearing must be reasoned.356 346 CJ RoP, Art 75(1). 347 CJ PD, para 51, on the basis of Statute, Art 20 and CJ RoP, Arts 76 and 82. 348 CJ PD, para 53; GC PR, para 142. 349 2018 Annual Report of the Court of Justice of the European Union, pp. 18–19. It is not apparent from the report how many hearings as foreseen in the CJ RoP and the GC RoP were actually held. 350 2016 Annual Report of the Court of Justice of the European Union, p. 83. 351 CJ RoP, Art 61(2); GC RoP, Art 89(4). 352 CJ RoP, Art 61(1); GC RoP, Art 89(3)(a). 353 CJ RoP, Art 54; GC RoP, Art 68. 354 Statute, Art 31. 355 CJ RoP, Art 79(1). 356 GC RoP, Art 79.

Hearing 481

4.2.8.2. Is There a Hearing? (i) The Court of Justice Hearings are optional as of 2012. Article 76 of the CJ RoP of 2012 gives a larger margin of appraisal for the Court of Justice on whether to dispense with the hearing than the previous Rules of Procedure of the Court of Justice. It contains the following provisions:

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1. Any reasoned requests for a hearing shall be submitted within three weeks after service on the parties or the interested person referred to in Article 23 of the Statute of notification of the close of the written part of the procedure. That time limit may be extended by the President. 2. On a proposal from the Judge-Rapporteur and after hearing the Advocate General, the Court may decide not to hold a hearing if it considers, on reading the written pleadings or observations lodged during the written part of the procedure, that it has sufficient information to give a ruling.357

It follows that the Court of Justice may decide on the case without a hearing if it has sufficient information based on the materials assembled during the written part of the procedure. The parties may increase the chance of having a hearing by requesting the Court to organise one; however, such a request does not bind the Court, which may still consider that no hearing is necessary. Content of the request for a hearing. Where a main party (NB: interveners are excluded)358 considers that a hearing must be arranged in his case, the onus is on him to inform the Court of Justice by letter why he wishes to be heard. That reasoning – which is not to be confused with written pleadings or observations, and should not exceed three pages – must be based on a real assessment of the benefit of a hearing to the party and must indicate the documentary elements or arguments which that party considers necessary to develop or disprove more fully at the hearing. It is not in itself sufficient to provide a general statement of reasons referring, for example, to the importance of the case or of the questions to be decided by the Court.359 Nonetheless, if a party highlights some legal aspects of the case that may contribute to the development of the case law in a given field, it might increase the chance of having a hearing.

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Practice. The Court of Justice explains its own practice in the CJ PD. Given the importance of the written part of the procedure, the decisive criterion for holding a hearing is not so much whether an express request for hearing has been made as the assessment made by the Court itself as to the potential contribution of that hearing to the outcome of the dispute. A hearing is therefore arranged by the Court whenever it is likely to contribute to a better understanding of the case and the issues raised by it, irrespective of the submission of a request for the hearing by a party or interested person referred to in Article 23 of the Statute.360 If the Court considers that the case raises no new point of law and decides that the case is to be determined without a submission from the Advocate General (cf para 4.357), it is unlikely that there would be a hearing.

4.313

Inadmissibility is usually stated without a hearing. In direct actions, the usual practice is to rule without a hearing if the action is dismissed as inadmissible. Article 53(2) of the CJ RoP provides that

4.314

Where it is clear that the Court has no jurisdiction to hear and determine a case or where a request or an application is manifestly inadmissible, the Court may, after hearing the Advocate General, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

357 NB: ‘interested persons referred to in Article 23 of the Statute’ are only present in preliminary ruling proceedings. 358 CJ RoP, Art 129(1). 359 CJ PD, para 53. 360 CJ PD, para 52. NB: ‘interested persons referred to in Article 23 of the Statute’ are only present in preliminary ruling proceedings.

482 Procedure in Direct Actions Dismissing the action as inadmissible for other reasons usually also takes place without a hearing and by issuing an order, unless the preliminary report identified some admissibility issues for which there is no crystallised case law, in which case the Court of Justice may prefer to arrange for an oral hearing. If a hearing has been held, the action is more likely to be dismissed as inadmissible in a judgment, not by order. In direct actions, a hearing is normally held if the Court of Justice intends to rule on the substance. 4.315

Place in the oral part of the procedure. The oral part of the procedure consists of two main stages: the oral hearing of the parties or interested persons (on a single occasion) and the presentation of the Opinion of the Advocate General (at a later date in writing). The Advocate General is present at the hearing and may ask questions, but the formal Opinion is only published some months after the hearing. When the Court considers that the case raises no new point of law, it may decide (after hearing the Advocate General) that the case is to be determined without a submission from the Advocate General.361 In that case, a hearing may still be held, but it is unlikely. (ii) The General Court

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Hearings are optional as of 2015. Before 2015, the General Court arranged for an oral hearing in all proceedings concerning direct actions, save the cases where the General Court dismissed the action as inadmissible by reasoned order without a hearing. The GC RoP of 2015 introduced a major change insofar as it made hearings optional in direct actions, thus a judgment in which the Court rules on the merit of the case may now also be handed down without a hearing.362 The relevant provisions are contained in Article 106 of the GC RoP and read as follows: 1. The procedure before the General Court shall include, in the oral part, a hearing arranged either of the General Court’s own motion or at the request of a main party. 2. Any request for a hearing made by a main party must state the reasons for which that party wishes to be heard. It must be submitted within three weeks after service on the parties of notification of the close of the written part of the procedure. That time limit may be extended by the President. 3. If there is no request as referred to in paragraph 2, the General Court may, if it considers that it has sufficient information available to it from the material in the file, decide to rule on the action without an oral part of the procedure. In that case, it may nevertheless later decide to open the oral part of the procedure.

The reason for making hearings optional was the positive experience gathered in proceedings concerning intellectual property, where parties only requested a hearing in less than half of the cases. Dispensing with the hearing may well accelerate the procedure and reduce the workload of the General Court. The Court of Justice already ruled in Andechser Molkerei that neither Article 47 of the Charter of Fundamental Rights nor Article 6 of the European Convention on Human Rights imposes an absolute obligation to hold a public hearing in all types of procedures.363

361 Statute, Art 20(5). 362 A similar regime already existed in the old GC RoP of 1991 in respect of intellectual property cases, under which a hearing was only held if a party requested it or the General Court considered it necessary. This regime has been extended to direct actions by the GC RoP of 2015. See K Andová and E von Bardeleben, ‘La refonte du règlement de procédure du Tribunal de l’Union européenne: pour une efficacité juridictionnelle renforcée’ (2015/7) Europe étude 6, para 20. 363 Case C-682/13 P Andechser Molkerei Scheitz v Commission [EU:C:2015:356] paras 43–47. Clarification was also needed because Statute, Art 20 foresees that ‘the procedure before the Court of Justice [of the EU] shall consist of two parts: written and oral’.

Hearing 483 Only a main party may request a hearing. As is apparent from Article 106 of the GC RoP, only a main party – that is, the applicant or the defendant – has the right to request a hearing. Interveners are parties to the proceedings but not ‘main parties’,364 thus they may only suggest – possibly in the statement in intervention – that a hearing be held, but they have no right to formally request one.

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The General Court may only dispense with the hearing if no main party makes a request. In direct actions brought before the General Court, the latter may only rule on the case without hearing if none of the main parties makes a request and if it has sufficient information from the material in the file.365 Thus, contrarily to the CJ RoP, the request for hearing made by one of the main parties binds the General Court.

4.318

Content of the request for the hearing. The recommended content of the request for a hearing is the same as in proceedings before the Court of Justice (cf para 4.312).366

4.319

4.2.8.3. Preparation for the Hearing Connection with the preliminary report. The preliminary report (cf para 4.258 et seq) presented by the Judge-Rapporteur to the EU Courts also contain procedural proposals, including indications of whether a hearing may be dispensed with. The general meeting of the Court of Justice and the conférence de chambre at the General Court discuss those proposals. Furthermore, the content of the request for a hearing submitted by the parties will also be taken into account when the Courts decide on whether a hearing will be held.

4.320

Fixing the date of the hearing and notice of the hearing. The President of the Chamber fixes the date of the hearing.367 The GC PR provides that, as a rule, the parties are given notice to attend the hearing by the Registry at least one month before it takes place.368 The notice of the hearing notifies to the parties the exact date and time of the hearing, the composition of the formation to which the Court has assigned the case and, where applicable, that there is to be no Opinion of the Advocate General. The main parties may request an adjournment of the hearing, which is, however, granted only in exceptional circumstances.369 Such requests must state adequate reasons, be accompanied by appropriate supporting documents and be submitted to the General Court as soon as possible after notice to attend has been given.370 If the representative of a party intends not to be present at the hearing, he is requested to inform the Court as soon as possible after notice to attend has been given.371 The Court of Justice has a similar practice; however, the CJ PD does not mention the possibility to request an adjournment of the hearing.372 The hearing also takes place in the absence of the party.373

4.321

364 GC RoP, Art 1(2)(d); GC RoP, Art 142(1). 365 See also GC PR, para 143. 366 See also GC PR, para 142. 367 CJ RoP, Art 75; GC RoP, Art 107. 368 GC PR, para 144. 369 While another Court hearing around the same date for the lawyer in question may be accepted as a proper justification, trips or holidays are usually not accepted. A better way to avoid hearings in difficult periods is for a lawyer or agent to send a letter to the Registry in advance, even regularly, indicating the cases where a hearing may take place and a request not to schedule a hearing in a given period when many other Court duties or an expensive trip or holiday are planned. 370 GC RoP, Art 107(2); GC PR, para 145. 371 GC PR, para 146. 372 CJ PD, para 54. 373 GC RoP, Art 108(1).

484 Procedure in Direct Actions 4.322

Report for the hearing. As of 2012, the report for the hearing only exists in proceedings before the General Court (the ‘summary report for the hearing’). It contains three parts: the summary of the non-contentious facts of the case; the heads of claims of the parties; and a rather terse presentation of their principal arguments, often in bullet points (cf para 4.265). It is sent to the parties at least three weeks prior to the hearing374 and enables them to verify whether the General Court was correct in considering that the facts set out are indeed accepted by both parties and if the General Court correctly summed up their heads of claims (which may sometimes be very complex in their original form) and their principal arguments. The parties may comment on that report at the hearing, and any such observations must be recorded in the minutes of the hearing.375 In practice, the parties might also comment on the report for the hearing in writing, and ask the Court at the beginning of the hearing if those comments were put on file.

4.323

Speaking time. The speaking time is communicated to the parties and to the interested persons referred to in Article 23 of the Statute376 before the hearing, in a formal document. As a rule, it is 15 minutes, or, in more complex cases, 30 minutes. In the procedure before the General Court, the speaking time of interveners is normally 10 minutes. The parties may submit a reasoned request for a longer speaking time in writing ahead of the hearing.377

4.324

Sending the pleadings to the interpreters in advance. The EU Courts ensure simultaneous interpretation at least from the language of the case into the internal working language of the institution (French). The parties may consider sending their oral pleadings in advance to the interpreters so that the latter can make better preparations for the hearing.378 In particular, the interpreters may look up the exact translation into the target language of case law quotes to be made by the parties orally and thus facilitate the understanding of every nuance of the oral argumentation derived from a given paragraph of a judgment or order. The pleadings are not shown to the Judges.

4.325

Further information. The CJ PD,379 the GC PR,380 as well as the documents ‘Aide-mémoire: Hearing of oral argument’ and ‘Advice to counsel appearing before the Court’,381 provide further useful information on the hearing which is not reproduced in this book.

4.2.8.4. Course of the Hearing 4.326

Language and interpretation. The parties must plead at the hearing in the language of the case, unless the EU Courts authorise exceptionally the use of another language for a representative. At the same time, the Judges or the Advocate General may address the parties in different languages, and the parties and the audience have simultaneous interpretation through an earphone. Unless the language of the case is English, at least some of the Judges hearing the case are likely to listen to the oral presentation in a language different from the language of the case, either in French or in their mother tongue. High-quality interpretation services are provided by the Registries of the Courts.382 The interpreters prepare in advance for every hearing by studying the case file. 374 GC PR, paras 147–150. 375 See also GC PR, para 149. 376 NB: ‘interested persons referred to in Article 23 of the Statute’ only play a role in preliminary ruling proceedings. 377 CJ PD, para 60; GC PR, paras 162–163. 378 GC PR, para 168–171; Aide-mémoire – Hearing of oral argument, p. 1. 379 CJ PD, paras 51–69. 380 GC PR, paras 144–172. 381 Currently available at the curia.eu website respectively in the sections ‘Court of Justice – Procedure – Other useful information’ and ‘General Court – Procedure – Other useful information’. 382 GC PR, para 41.

Hearing 485 It is helpful to send the interpreters the oral pleading in advance (cf para 4.324). Even handwritten notes with case law references given to the interpreters immediately before the hearing may be helpful. The interpreters will be able to work much more effectively if the representative speaks slowly. It is important to quote citations, references, figures, names and acronyms clearly and slowly, even spelling them where appropriate. Discussion on the organisation of the hearing with the Judges. It is recommended that the parties’ representatives appear in the courtroom at least 15–30 minutes before the hearing is due to start, as the members of the formation of the Court will normally wish to discuss the organisation of the hearing with them.383 That pre-meeting takes place in a separate room adjacent to the courtroom; only the Judges and the representatives are present. At that pre-meeting, the parties are informed about the time available to plead and the order of pleadings, and the JudgeRapporteur and the Advocate General may invite the representatives to provide, at the hearing, further information on certain questions or to develop specific aspects of the case. The order of the pleadings follows that of the written submissions: first the applicant or the appellant pleads, followed by the defendant or respondent. The oral pleading of the intervener usually follows that of the party he supports.

4.327

Verifying the content of the report for the hearing. At the beginning of the hearing, the President of the Chamber asks the parties if they have any comment on the content of the report for the hearing (as of 2012, only present in proceedings before the General Court; cf para 4.322). This is usually a quick question, whereupon the President looks at the representatives and, if no representative indicates within a few seconds that he or she would like to make comments, the President states that there are no comments. The (usually tacit) consent given by the parties to the report for the hearing has the consequence that the facts set out under the heading ‘facts’ or ‘background to the dispute’ in the report for the hearing will be presented as established facts not disputed by the parties in the final judgment or order closing the procedure.384 If the parties have observations regarding the content of the report for the hearing, they must voice them clearly. In practice, the ‘facts’ part of the judgment may have an important role in competition cases, especially when it comes to the ownership of subsidiaries in various periods preceding the adoption of the Commission decision, which may have an impact on the attribution of responsibility for the breach of competition rules and also on the calculation of the fine, should there be any revision by the General Court.

4.328

Who may speak? The hearing is opened and directed by the President of the Chamber, who is responsible for its proper conduct.385 The President invites the Advocate General and the other members of the Chamber to ask questions of the representatives. The parties may not speak; only their representatives may address the Courts,386 save in staff cases, where the Judges may invite the parties themselves to express their views on certain aspects of the case.387 The CJ PD indicates that, as a rule, only one representative may plead and respond to the oral questions on behalf of a party or interested person.388 The GC PR provides that normally a maximum of two representatives may present oral arguments.389 In hearings before the General Court, it is not uncommon for the President of the Chamber to authorise a Commission official who worked on the case at

4.329

383 CJ

PD, paras 57; GC PR, para 153. this regard, see Case T-551/08 H&R ChemPharm v Commission [EU:T:2014:1081] para 346. 385 CJ RoP, Art 78; GC RoP, Art 110(1). 386 GC RoP, Art 110(2). 387 GC RoP, Art 110(4). 388 CJ PD, para 61. 389 GC PR, para 164. 384 In

486 Procedure in Direct Actions the administrative stage or a manager of the applicant company to respond to certain specific questions directly (cf para 4.342). The 2018 amendment of the GC PR390 clarified the applicable procedure. The GC PR now provides that In order to assist the Court in relation to certain technical issues, the President of the formation may authorise the parties’ representatives to give the floor to individuals who, despite not having the status of representative, are best placed to comment. Those individuals shall intervene only in the presence of the representative of the party concerned and responsibility for them shall lie with him. Before addressing the Court, those individuals must identify themselves.391

Furthermore, it should be noted that the representatives are not authorised to ask questions directly to each other, though they may recommend questions to be asked by the Judges. 4.330

Reference to cases. A precise reference to case law by indicating the case number and the paragraph number is of utmost importance. The Judges sitting with the Chamber often listen to the interpretation of the oral pleading in a different language. A mere reference to a judgment by a colloquial name may not be audibly rendered by the interpretation.

4.331

The seating order. Applicants and appellants are seated at the front row desk on the right (facing the Court), defendants and respondents at the front row desk on the left, while interveners sit behind the parties they support (in the second row of desks). The legal secretaries (référendaires) of the Judge-Rapporteur and of the Advocate General sit at separate tables on the left side of the room, facing the parties from the side. The Judges sit behind elevated desks in the front part of the room, facing the parties. Each party addressing the Court must stand at the pulpit and use the microphone so as to allow recording and interpretation.

4.332

Stages of the hearing. The hearing consists of three distinct stages: (i) the oral argument (the oral pleading proper); (ii) the oral questions asked by the Judges; and (iii) the final replies by the parties. These stages are presented below. (i) The Oral Argument (the Oral Pleading Proper)

4.333

General. The parties, interveners and – in preliminary ruling cases – the interested persons referred to in Article 23 of the Statute present their oral submissions. Since the initial speaking time is rather short (15 or 30 minutes in most cases; cf para 4.323) and the Judges rely on the preliminary report, it is not necessary (or possible) to present all the arguments submitted in writing. It is superfluous to recall the facts of the case. It is recommended to focus on the most persuasive arguments, on the issues expressly indicated by the EU Courts392 and on those aspects of the case whose importance transpires from the exchange of written pleadings or from the written questions (cf para 4.308). The oral pleading also gives the opportunity to a party to comment on the evidence submitted by the other party after the close of the written part of the procedure, in response to a measure of organisation of procedure or of inquiry (or as new evidence, if it is admissible). In direct actions, the oral pleading is usually the sole possibility for the applicant to react to the rejoinder (or to the defence, if the latter was the last written submission by the defendant). In a preliminary ruling procedure, the oral hearing is the sole possibility to comment on the 390 Amendments to the GC PR adopted on 17 October 2018 (OJ 2018 L 294, p. 23). 391 GC PR, para 161. 392 As a measure of organisation of procedure, the EU Courts may ask the parties to focus on certain issues at the hearing. See CJ RoP, Art 61(2); GC RoP, Art 89(4). Under the CJ RoP, Arts 61 and 62, the Court, the Advocate General or the Judge-Rapporteur may also invite the parties or interested persons to reply to specific questions orally at the hearing.

Hearing 487 observations submitted by other interested parties. The oral argument also offers the opportunity to present new case law which has arisen after the close of the written procedure. No new plea in law is allowed, as a rule. For reasons of procedural fairness, a party is not allowed to surprise the other party with an entirely new line of argumentation at the hearing. Article 127(1) of the CJ RoP and Article 84(1) of the GC RoP contain identical provisions in this regard: ‘No new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.’ Thus, the party must stay within the framework of his original pleas as set out in the first written pleading (application or defence in direct actions). The questions related to the admissibility of new pleas at the hearing393 – in particular, the concept of new matters of law or of fact and that of the expansion of pleas in law by adding new arguments – are examined in detail in this book in the context of the reply in direct actions (cf paras 4.227–4.238), where they occur most frequently.

4.334

Change brought by the GC RoP of 2015 – new pleas must be submitted before the hearing in writing, if possible. Under Article 84 of the GC RoP of 2015, the party who wishes to submit a new plea in law based on matters of law or of fact which come to light after the filing of the application or the defence may not wait until the hearing. He must submit that new plea as soon as the new matter comes to his knowledge (cf para 4.228):

4.335

2. Any new pleas in law shall be introduced in the second exchange of pleadings and identified as such. Where the matters of law or of fact justifying the introduction of new pleas in law are known after the second exchange of pleadings or after it has been decided not to authorise a second exchange of pleadings, the main party concerned shall introduce the new pleas in law as soon as those matters come to his knowledge. 3. Without prejudice to the decision to be taken by the General Court on the admissibility of the new pleas in law, the President shall give the other parties an opportunity to respond to those pleas.

Pleas in law may be raised if they are a matter of public policy. Some pleas in law or arguments must be examined by the EU Courts ex officio since they are a matter of public policy. These illegalities may consist, among others, in the breach of the duty to give reasons, that of the rights of the defence, or the inobservance of internal procedural rules or of the right to participate in the decision making. Theoretically, a party may put forward such pleas or arguments for the first time even at the hearing, since he merely draws the attention of the Courts to an illegality that the latter are supposed to discover and examine ex officio (cf paras 4.239–4.242).

4.336

No new evidence, as a rule. Under the Rules of Procedure, in direct actions, evidence must be submitted in an annex to the first written pleading. If new evidence comes to the knowledge of the parties, it must be submitted in the reply or the rejoinder. Exceptionally, the parties may produce further evidence after the close of the written procedure; however, the delay must be duly justified. Even in this case, the evidence should be submitted by a separate document before the hearing. The President394 must give the other party the opportunity to comment on the new evidence (cf Subsection 4.2.4.3. New Evidence in the Reply or Later).395 If new evidence is produced between the close of the written part of the procedure and the hearing, the hearing itself allows the other party to comment on that evidence. However, if new evidence is submitted at the hearing, first, the party must prove that earlier submission (even weeks or days may matter)

4.337

393 See,

394 cf

eg Case C-578/11 P Deltafina v Commission [EU:C:2014:1742] paras 71–77. paras 1.36 and 1.61. RoP, Art 128; GC RoP, Art 85.

395 CJ

488 Procedure in Direct Actions was not possible, and, secondly, the other party may request the EU Courts to allow a response to that new evidence in writing. If that request is granted, the Courts are not able to close the oral part of the procedure at the end of the hearing (cf paras 4.351–4.352). (ii) Questions by the Court 4.338

General. The members of the formation of the Court and the Advocate General may put questions to the representatives in the course of the hearing.396 However, they will allow the parties to finish the oral argument before addressing questions to them.

4.339

Role of the questions asked by the Courts. The oral questions asked by the EU Courts are the most important element of the hearing. The decision on the case usually revolves around the issues which are the subject of those questions. They are often prepared in advance; for instance, the preliminary report may contain proposals regarding questions to be asked at the hearing. Clarifications regarding the content of the pleas in law may well be asked by the Judges. Moreover, it is not unusual for the Judge-Rapporteur to quote two contradicting statements made by the same party in separate documents – eg in the application and in the reply to a written question – and to invite the representative to indicate which one is the party’s definitive position. The representatives must be very attentive at this stage of the hearing, since a statement made in reply to the Courts’ question may be directly quoted or referred to in the upcoming judgment.397 The likely content of the oral questions may often be inferred, to some extent, from the written questions asked by the Courts as a measure of organisation of procedure (cf para 4.277 et seq).

4.340

Consultation and reflection are allowed. If the representative cannot reply immediately to a question – for instance, supporting materials need to be checked for data or for precise quotes – he may ask the President of the Chamber for the option to respond later, during the questions part of the hearing or at the stage of the final replies. It is not uncommon for the representative to ask his aides to look up some specific information in the file or to discuss the issue briefly with his colleagues, with the Commission case handlers or with the managers of a company which is party to the case, where appropriate. Exceptionally, the representative may ask the President for permission to respond in writing after the hearing. The President has full discretion as to whether to grant the request. From the point of view of the party, responding in writing implies the risk that the other party will also be allowed to make a final comment in writing after the service of that response on him, the result of which is unforeseeable. If a response to an oral question in writing is allowed, the oral part of the procedure is left open at the end of the hearing (cf para 4.351). It is precisely in order to avoid such delays in the procedure that the General Court endeavours to ask all the relevant questions – especially those on facts and data – in writing before the hearing.

4.341

Practice. Sometimes the other party is allowed to react to the question addressed to the other party immediately after the answer, on other occasions such reactions must be reserved for the final reply. The questions part of the hearing may well last more than an hour, depending on the complexity of the case.

4.342

Questions to Commission officials. Commission officials present at the hearing may be a direct source of information needed for the clarification of the circumstances in which the contested 396 CJ RoP, Art 80; GC RoP, Art 110(3); CJ PD, para 65. 397 See, eg Case T-11/06 Romana Tabacchi v Commission [EU:T:2011:560] para 108; Case T-551/08 H&R ChemPharm v Commission [EU:T:2014:1081] paras 241 and 262.

Hearing 489 act in actions for annulment was adopted. They are usually present at the hearing and are seated behind the representatives of the Commission in the courtroom. The Judges and the Advocate General may ask questions directly to the Commission officials, or the representatives of the Commission may also recommend that the officials reply directly to some questions. In that regard, in Deltafina, the Court of Justice ruled in a judgment delivered on appeal that ‘the General Court does indeed follow a current and legitimate practice of questioning, on technical matters or complex facts, the persons representing the parties [in the administrative procedure] who know the relevant details’. However, questioning Commission officials on facts which are contentious and in dispute between the parties, which do not reveal any technicality or complexity, without those Commission officials being sworn in as witnesses may constitute a procedural irregularity. Such an irregularity was stated in the Deltafina judgment, but did not lead the Court of Justice to setting aside the judgment of the General Court.398 As of October 2018, the GC PR offers guidance on the possibility of persons other than the representatives to speak at the hearing (cf para 4.329).399 (iii) Replies Final replies. After all oral questions have been exhausted, the representatives of the parties and of interested persons have a final opportunity, if they consider it necessary, to reply briefly, for a maximum duration of five minutes each. These final comments may relate to aspects of the questions on which that party could not explain its view fully or return to the main statements made by it or by the other parties. Excessive repetitions or, conversely, bringing up wholly new issues are usually counterproductive, as the function of the reply is rather to summarise and complete the previous debate. In hearings before the Court of Justice, if two persons have been authorised to speak for a party, only one of them is authorised to reply.400

4.343

4.2.8.5. Actions Taken by the EU Courts after the Hearing (i) General The General Court closes the oral part of the procedure and proceeds to deliberations. The General Court delivers its rulings without an Opinion of the Advocate General. As a rule, at the end of the hearing, the President of the Chamber declares that the oral part of the procedure is closed.401 Thereafter, the minutes of the hearing are prepared and the Chamber commences the deliberations.

4.344

The Court of Justice continues the proceedings with the AG Opinion or, if there is no Opinion, with deliberations. The delivery of the Opinion of the Advocate General also forms part of the oral part of the procedure. The Advocate General discloses the expected date of his or her Opinion at the end of the oral hearing, but on some occasions, this date can be deferred. If no Opinion is foreseen, the Court of Justice closes the oral part of the procedure at the end of the hearing.

4.345

Exception: keeping the oral procedure open after the hearing. There are some exceptional situations where the General Court does not close the oral part of the procedure at the end of the

4.346

398 C-578/11

P Deltafina v Commission [EU:C:2014:1742] paras 57–70. PR, para 161. 400 CJ PD, para 66. 401 GC RoP, Art 111. 399 GC

490 Procedure in Direct Actions hearing (cf para 4.351), for instance, where one of the parties requests to answer a question put at the hearing in writing or to comment on an issue in writing, and his request is granted by the President of the Chamber (cf para 4.337 and 4.340), or the Court orders the submission of a further document. The Court of Justice may similarly leave the oral part of the procedure open after the hearing in such situations even if there is no Opinion of the Advocate General. (ii) Minutes and Recording of the Hearing 4.347

The minutes of the hearing. The Registrar draws up minutes of every hearing. The minutes are signed by the President of the Chamber and by the Registrar. They constitute an official record.402 In the procedure before the Court of Justice, the parties and interested persons referred to in Article 23 of the Statute403 may inspect the minutes at the Registry and obtain copies.404 In the procedure before the General Court, the minutes are served on the parties.405

4.348

Content. The minutes contain some obvious data related to the hearing, such as an indication of the case, the date, time and place of the hearing, the names of the Judges and the Registrar present, and the names and statuses of the parties’ representatives present. Importantly, in the procedure before the General Court, the minutes include a reference to any observations on the summary report for the hearing. This item is very relevant, since the General Court must take into consideration those observations in the final judgment or order closing the case (cf para 4.328). Another important reference is the one to the procedural documents or items produced at the hearing. If the other party is allowed to react to those documents or items in writing, the decision of the President of the Chamber in this respect must also appear in the minutes, along with other decisions of the President.406

4.349

Recording of the hearing. The hearings are recorded and are used for the purposes of the preparation of the draft judgment or order closing the case.

4.350

Access to the record of the hearing. The Rules of Procedure of both Courts foresee that the President of the Chamber may, on a duly substantiated request, authorise a party or an interested person referred to in Article 23 of the Statute407 who has participated in the written or oral part of the proceedings to listen, on the Court’s premises, to the soundtrack of the hearing in the language used by the speaker during that hearing.408 (iii) Keeping the Oral Procedure Open after the Hearing

4.351

Practice of the General Court. Litigation before the General Court is fact-intensive, and the Court makes every effort to clarify the factual circumstances of the case by issuing written questions, invitations to produce documents (cf para 4.277) and requests for documents (cf para 4.291) well ahead of the hearing. The goal of this practice is to ensure that the responses of a party and the documents produced by him may be served on the other party before the hearing and both parties be in the position to comment on the related issues orally at the hearing.

402 Statute,

Art 33; CJ RoP, Art 84(1); GC RoP, Arts 43(1) and 114(1). persons referred to in Article 23 of the Statute’ are only present in preliminary ruling proceedings. RoP, Art 84(2). 405 GC RoP, Art 114(2). 406 GC PR, para 172. 407 ‘Interested persons referred to in Article 23 of the Statute’ are only present in preliminary ruling proceedings. 408 CJ RoP, Art 85; GC RoP 115. 403 ‘Interested 404 CJ

Hearing 491 Nevertheless, it may happen that important documents surface shortly before the hearing or are produced by a party at the hearing. It may also occur that a party raises a new plea in law at the hearing (cf para 4.334). Such a situation raises concerns from the point of view of the fairness and equity of the procedure, since the other party may not have sufficient time to prepare its comments on those documents or its response to a new plea in law. To warrant a fair and equitable procedure, the President of the Chamber may keep the oral part of the procedure open at the end of the hearing and allow one or both parties to make further written submissions. Keeping the oral procedure open does not mean in any way that a second hearing will be held; what follows the hearing is more similar to an extension of the written procedure. The GC RoP of 2015. The situation where the General Court is not able to close the oral part of the procedure at the end of the hearing may be regarded as a procedural anomaly. The GC RoP of 2015 brought a few new rules intended to restrict the number of such situations. In particular, provisions have been introduced in Articles 84 and 85 of the GC RoP of 2015, which compel the parties to put forward new pleas in law (cf paras 4.227 and 4.304) and new evidence (cf para 4.243) as soon as possible before the hearing. The purpose of these changes was to enable the other party to react to a new plea or piece of evidence at the hearing, so that the oral part of the procedure could be duly closed at the end of the hearing.

4.352

(iv) Reopening the Oral Part of the Procedure General. Reopening the oral part of the procedure is an instrument used by the EU Courts only in exceptional situations, for instance, where, during the deliberations, the Chamber realises that more information is needed from the parties in order to give a ruling on the case. Reopening the oral procedure does not mean that another hearing would be held. Rather, it is similar to the period of the procedure preceding the oral hearing. When the oral part of the procedure is reopened, a party may be invited to submit documents or be allowed to comment on an issue in writing.

4.353

The Court of Justice. Article 83 of the CJ RoP contains the following provisions regarding the opening and reopening of the oral part of the procedure:

4.354

The Court may at any time, after hearing the Advocate General, order the opening or 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 where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute.

The General Court. The GC RoP regulates the issue of reopening of the oral part of the procedure in Article 113: 1. The General Court shall order the reopening of the oral part of the procedure when the conditions set out in Article 23(3) or Article 24(3) are satisfied. 2. The General Court may order the reopening of the oral part of the procedure: (a) if it considers that it lacks sufficient information; (b) where the case must be decided on the basis of an argument which has not been debated between the parties; (c) where requested by a main party who is relying on facts which are of such a nature as to be a decisive factor for the decision of the General Court but which it was unable to put forward before the oral part of the procedure was closed.

4.355

492 Procedure in Direct Actions 4.356

Examples. In Toshiba, in an action for annulment brought against a cartel decision of the Commission, the General Court duly closed the oral part of the procedure at the end of the hearing. However, the applicant requested the reopening of the oral procedure on the grounds that an element had been addressed for the first time during the hearing. The General Court decided to reopen the oral part of the procedure by a formal order and allowed the applicant to submit a new document that proved to be relevant for the examination of that element. The Commission had also been allowed to comment on that new document in writing, whereupon the oral part of the procedure was again closed.409 In Bavarian Lager, an appeal case before the Court of Justice, the Commission and the European Data Protection Supervisor requested the reopening of the oral part of the procedure after the delivery of the Opinion of the Advocate General, by claiming that the Opinion was based on arguments that were not debated either before the General Court or before the Court of Justice. The Court of Justice refused to reopen the oral part, as it considered that it had all the material necessary to decide the dispute and that the case did not need to be examined in the light of the arguments at issue.410 In Internationaler Hilfsfonds, the Court of Justice turned down the request of the appellant to reopen the oral part of the procedure after the delivery of the Opinion of the Advocate General and made it clear that the parties have no right to respond to that Opinion.411

4.2.9. Opinion of the Advocate General 4.357

AG Opinions are delivered in cases heard by the Court of Justice. Members of the Court of Justice include 11 Advocates General (cf para 1.26). The preparation and the delivery of the Opinion of the Advocate General (AG Opinion) take place within the oral part of the procedure, the Opinion is handed down after the hearing.412 The Opinion is not binding on the Court of Justice; rather, its purpose, in accordance with Article 252 TFEU, is to provide an impartial and independent opinion, after having thoroughly reviewed the pleas in the case (cf para 1.46 on the nature of the AG Opinions). Under Article 20 of the Statute, if the case raises no new point of law, the Court may decide, after hearing the Advocate General, that the case shall be determined without an Opinion. In 2018, 305 AG Opinions were delivered. The General Court does not include a body of Advocates General. While the GC RoP makes it possible to appoint a Judge not included in the formation to take the role of an Advocate General,413 this provision has not been applied in practice since 1992 (cf para 1.50).

4.358

The AG Opinion follows some time after the oral hearing. The Advocate General discloses the expected date of his or her Opinion at the end of the oral hearing, but on some occasions, this date can be deferred. In many cases, the Advocate General presents the Opinion within 10 weeks of the oral hearing. The parties cannot formally comment on the AG Opinion, but occasionally parties, which consider that the Opinion contains material inaccuracies or misrepresents the parties’ arguments, request in a letter the reopening of the oral procedure. A mere desire to comment on the Opinion is not sufficient justification to reopen the oral part of the procedure (cf para 4.356).

409 Case

T-519/09 Toshiba v Commission (power transformers cartel) [EU:T:2014:263] paras 19–23. C-28/08 P Commission v Bavarian Lager [EU:C:2010:378] paras 37–39. 411 Case C-362/08 P Internationaler Hilfsfonds v Commission [EU:C:2010:40] paras 43–47. 412 CJ RoP, Art 82(1). 413 GC RoP, Art 112. 410 Case

Judgments and Orders Ending the Case 493 Closing the oral part of the procedure after the AG Opinion. Where an AG Opinion is prepared in a case, the Court of Justice closes the oral part of the procedure after its delivery.414

4.359

4.2.10. Deliberations General. Once the oral part of the procedure is closed, either directly after the hearing (cf paras 4.344 and 4.345) or after the presentation of the Opinion of the Advocate General (cf para 4.359), the Chamber continues the procedure with the deliberations. If there was no hearing, the deliberations follow the closing of the written procedure and the reception of the responses to the measures of organisation of procedure or of inquiry. Article 32 of the CJ RoP and Article 21 of the GC RoP contain the following identical provisions in this regard:

4.360

1. The deliberations of the Court shall be and shall remain secret. 2. When a hearing has taken place, only those Judges who participated in that hearing … shall take part in the deliberations. 3. Every Judge taking part in the deliberations shall state his opinion and the reasons for it. 4. The conclusions reached by the majority of the Judges after final discussion shall determine the decision of the Court.

Practice. The first draft of the judgment or order closing the case is prepared by the JudgeRapporteur and his or her cabinet, under the general directions given by the Chamber. The draft is then submitted to the Chamber, which discusses it at a meeting called ‘délibéré’. That meeting is often followed by written comments and proposals from the other Judges sitting with the Chamber. The usual practice is to strive to achieve consensus, thus observations from a Judge are usually accommodated even if the majority of the Chamber has already approved the draft (cf para 1.37).

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4.2.11. Judgments and Orders Ending the Case 4.2.11.1. Judgment or Order? (i) Judgments on the Substance of the Case The Court of Justice decides on the substance of the case in judgments. Direct actions before the Court of Justice consist in actions for annulment or for failure to act, brought by an EU institution or a Member State against an EU institution (cf para 1.19), and in actions for failure to fulfil Treaty obligations, brought by the Commission or by a Member State against a Member State. The Court of Justice closes the case with a judgment if it rules on the merits.

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The General Court decides on the substance of the case in judgments in most cases. Where the General Court rules on the substance of the case, the final decision is almost always handed down in the form of a judgment. The only exceptions are discussed below: the final order dismissing the application as manifestly lacking any foundation in law (cf para 4.364) and the final order upholding the application as manifestly well founded (cf para 4.365).

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414 CJ

RoP, Art 82(2).

494 Procedure in Direct Actions (ii) Final Orders of the General Court on the Substance of the Case 4.364

Final order dismissing the application as manifestly lacking any foundation in law. The General Court may dismiss the application by reasoned order under Article 126 of the GC RoP if it considers that the action manifestly lacks any foundation in law. Such an order may be issued without taking any further steps in the proceedings, which may mean, in practice, that the defendant is allowed to submit a defence but no hearing is held. That type of order contains a ruling on the substance of the case415 and the subject matter of the litigation becomes res judicata.

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Final order upholding the application as manifestly well founded. The other exception to the rule that the General Court decides on the merits of the case in judgments is newly introduced by the GC RoP of 2015: Article 132 of the GC RoP provides that actions that are manifestly well founded may be upheld by the General Court by reasoned order: Where the Court of Justice or the General Court has already ruled on one or more questions of law identical to those raised by the pleas in law of the action and the General Court finds that the facts have been established, it may, after the written part of the procedure has been closed, on a proposal from the Judge-Rapporteur and after hearing the parties, decide by reasoned order in which reference is made to the relevant case law to declare the action manifestly well founded.

The application of this instrument is thus only possible if all the legal issues raised by the case have been completely clarified by earlier decisions of the EU Courts and the set of facts is also entirely clear from the exchange of written pleadings and the annexes thereof. The order gives a definitive solution to the case and thus the subject matter of the litigation becomes res judicata. The General Court has already declared some actions for annulment manifestly well founded in application of Article 132 of the GC RoP of 2015. Examples include the actions for annulment brought against a Council implementing decision and a Council implementing regulation concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine.416 Both contested acts were of general application, therefore each person or entity concerned could only request their annulment in his or its own respect (cf para 3.209 on standing and interest to act in actions for annulment directed against measures of general application). This resulted in a series of actions brought before the General Court with virtually identical subject matter.417 The General Court chose a pilot case418 to rule on the legal issues, and in Portnov v Council it annulled the contested Regulation 208/2014 and the contested Decision 2014/119/CFSP in a judgment following the regular procedure, including a hearing, insofar as they concerned Mr Portnov, the applicant.419 Other applicants in, for example, Pshonka v Council also brought actions for annulment against Regulation 208/2014 and Decision 2014/119/CFSP, which contained similar restrictive measures in their respect. Since the

415 See, eg Order of 16 July 2014 in Case T-315/13 Kompas v Parliament and Others [EU:T:2014:704] (action for damages). As an example from the field of intellectual property litigation, see also Order of 26 January 2016 in Case T-277/15 Permapore v OHIM (Terraway) [EU:T:2016:65]. 416 Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1); Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26). 417 Case T-290/14 Portnov v Council [EU:T:2015:806]; Order of 10 June in Case T-381/14 Pshonka v Council [EU:T:2016:361]; Order of 10 June 2016 in Case T-494/14 Klymenko v Council [EU:T:2016:360]. 418 The method of choosing a pilot case was already foreseen at the time of the drafting of the GC RoP of 2015. See K Andová and E von Bardeleben, ‘La refonte du règlement de procedure du Tribunal de l’Union européenne: pour une efficacité juridictionnelle renforcée’ (2015/7) Europe étude 6, para 21 in fine. 419 Case T-290/14 Portnov v Council [EU:T:2015:806].

Judgments and Orders Ending the Case 495 General Court had already declared illegal and annulled in Portnov v Council the acts contested in Pshonka v Council, it decided to follow the procedure foreseen in Article 132 of the GC RoP and annulled the contested acts in respect of Mr Pshonka without a hearing, by an order declaring the action manifestly well founded.420 The General Court asked the parties to state their views on the applicability of Article 132 GC RoP in view of the Portnov v Council judgment before deciding to follow that procedure.421 In the context of direct actions, this instrument is unique to the General Court, the CJ RoP only allowing for such orders when the Court of Justice decides an appeal case.422 (iii) Final Orders without Decision on the Substance of the Case Final orders issued by the Court of Justice and the General Court. Both EU Courts may end the procedure in direct actions by reasoned orders, without deciding on the substance of the case, in the following situations:

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• the Courts have no jurisdiction or the action is manifestly inadmissible423 (eg an action for annulment was brought against an act of a Member State); • there exists an absolute bar to proceeding with a case424 (eg an action for annulment was brought out of time (cf para 3.220). • the Courts declare that the action has become devoid of purpose and that there is no longer any need to adjudicate on it425 (cf Section 5.7.2. No Need to Adjudicate). In addition, the General Court ends the case by a reasoned order if it transfers the case to the Court of Justice: • referral of a case to the Court of Justice426 or declining jurisdiction427 in one of the situations described in Article 54 of the Statute (cf paras 1.23–1.24). The procedure in these situations is usually substantially different from the one described in this chapter. Where the action is manifestly inadmissible or there is an absolute bar to proceeding with the case, the defendant often submits a plea of inadmissibility in a separate document or submits arguments in the defence to show the inadmissibility of the action (cf para 4.220). The written procedure takes a different course after these events and usually no hearing is held (cf Section 5.7.1. Inadmissibility). The procedure in cases closed by orders declaring that the case does not proceed to judgment is examined in Section 5.7.2. No Need to Adjudicate. (iv) Inadmissibility Stated in a Judgment Where a hearing has been held. As a rule, actions which are found inadmissible by the EU Courts are dismissed in reasoned orders (cf para 4.366 and Section 5.7.1. Inadmissibility), without the oral part of the procedure being opened. Alcogroup is, however, an example where the 420 Order of 10 June in Case T-381/14 Pshonka v Council [EU:T:2016:361]. See also Order of 10 June 2016 in Case T-494/14 Klymenko v Council [EU:T:2016:360]. 421 Order of 10 June 2016 in Case T-494/14 Klymenko v Council [EU:T:2016:360] para 24. 422 See CJ RoP, Art 182 on manifestly well-founded appeals. 423 CJ RoP, Art 53(2); GC RoP, Art 126. 424 CJ RoP, Art 150; GC RoP, Art 129. 425 CJ RoP, Art 149; GC RoP, Art 131. 426 GC RoP, Art 127. 427 GC RoP, Art 128.

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496 Procedure in Direct Actions admissibility issue was novel, the General Court deciding to arrange for an oral hearing, whereupon it declared the action inadmissible in a judgment, not in a reasoned order.428

4.2.11.2. Closure of the Case 4.368

Closure of the case by a judgment. Judgments are delivered in open court and are binding from that date.429 Any oral hearing may begin with the delivery of judgments rendered in other cases. Delivery means that one of the Judges sitting with the Chamber reads out the operative part of those judgments, each in the language of the case it relates to. The parties concerned by those judgments are not required to be present and usually are not there, since, by around noon on the day of the delivery, at least a summary, but usually the full non-confidential text version of the judgment, is published on the curia website of the EU Courts. This is followed (after some weeks) by the publication in the Official Journal of a notice containing the date and the operative part of the judgment or order of the Court which closes the proceedings.430 The parties (and, in preliminary ruling proceedings, the interested persons and the referring national court) receive a full confidential text copy of the judgment431 in the means of delivery they have designated (e-Curia, fax or letter). A paper certified copy of the judgment may be requested from the Registry, for example, when it is necessary for national enforcement procedures.

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Content of a judgment. The Statute foresees that judgments shall state the reasons on which they are based, contain the names of the Judges who took part in the deliberations, be signed by the President of the Chamber and the Registrar, be read in open court and adjudicate upon costs.432 Article 87 of the CJ RoP and Article 117 of the GC RoP provide a more detailed list of content requirements for a judgment: Content of a judgment A judgment shall contain: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n)

428 Case

a statement that it is the judgment of the [Court of Justice or the General Court], an indication as to the formation of the Court, the date of delivery, the names of the President and of the Judges who took part in the deliberations, with an indication as to the name of the Judge-Rapporteur, the name of the Advocate General [if designated], the name of the Registrar, a description of the parties [or, in preliminary ruling proceedings of the interested persons referred to in Article 23 of the Statute who participated in the proceedings], the names of their representatives, [in the case of direct actions and appeals,] a statement of the forms of order sought by the parties, where applicable, the date of the hearing, a statement [where appropriate] that the Advocate General has been heard and, where applicable, the date of his Opinion, a summary of the facts, the grounds for the decision, the operative part of the judgment, including, where appropriate, the decision as to costs.

T-274/15 Alcogroup and Alcodis v Commission [EU:T:2018:179]. RoP, Arts 88 and 91(1); GC RoP, Arts 118 and 121(1). RoP, Art 92; GC RoP, Art 122. 431 CJ RoP, Art 88(2); GC RoP, Art 118(2). 432 Statute, Arts 36–38. 429 CJ 430 CJ

Judgments and Orders Ending the Case 497 Closure of the case by reasoned order. Orders are not delivered in an open court. They are notified to the parties (without advance notice) and published on the curia website and in the Official Journal. Therefore, orders are binding from the date of their service,433 contrary to judgments, which are binding from the date of their delivery in open court.

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Content of an order. Article 89 of the CJ RoP specifies the content of orders:

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Content of an order 1. An order shall contain: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k)

a statement that it is the order of the Court, an indication as to the formation of the Court, the date of its adoption, an indication as to the legal basis of the order, the names of the President and, where applicable, the Judges who took part in the deliberations, with an indication as to the name of the Judge-Rapporteur, the name of the Advocate General, the name of the Registrar, a description of the parties or of the interested persons referred to in Article 23 of the Statute who participated in the proceedings, the names of their representatives, a statement that the Advocate General has been heard, the operative part of the order, including, where appropriate, the decision as to costs.

2. Where, in accordance with these Rules, an order must be reasoned, it shall in addition contain: (a) in the case of direct actions and appeals, a statement of the forms of order sought by the parties, (b) a summary of the facts, (c) the grounds for the decision.

Article 119 of the GC RoP provides an almost identical list regarding the content of the orders against which an appeal may lie. Access to documents. After the final judgment in the case, the non-confidential version of written submissions of the EU institutions which are under the scope of the (transparency) Regulation 1049/2001434 may be requested under the rules for access to documents. It is important to note that the Court itself is not subject to such access obligation.

433 CJ RoP, Arts 90–92; GC RoP, Arts 120–122. 434 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

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4.3. Procedure in Intellectual Property Cases [written by Viktor Luszcz1]

4.3.1. Overview 4.373

General. The present chapter complements Chapter 3.5. Intellectual Property Cases by describing the practical aspects and the course of the procedure before the General Court. Furthermore, the specific procedural features of intellectual property cases as compared to direct actions are also examined, while Chapter 4.2. Procedure in Direct Actions offers guidance in respect of the common issues.

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IP cases are not direct actions but are closely related to them. Article 1(2)(i) of the Rules of Procedure of the General Court (GC RoP) defines direct actions and makes clear that proceedings brought against the decisions of the Boards of Appeal of the EU Intellectual Property Office (EUIPO) and the Community Plant Variety Office (CPVO) under the Intellectual Property Regulations2 are not direct actions.3 The applicable procedural rules are placed separately in Title IV of the GC RoP under the heading ‘Proceedings Relating to Intellectual Property Cases’ (Articles 171–191), which follows Title III ‘Direct Actions’.4 Nonetheless, intellectual property cases are closely related to direct actions, since the proceedings are brought by an applicant against a defendant, the latter being an EU agency (the EUIPO or the CPVO) (cf paras 4.15 and 4.17). While Title IV of the GC RoP foresees the specific rules relating to intellectual property cases, Article 191 of the GC RoP provides that, to all issues not regulated by Title IV, the provisions of Title III ‘Direct Actions’ apply.

4.3.2. General Rules 4.375

In case of dispute, the language of the contested decision is the language of the case. The GC RoP of 2015 brought important changes regarding the determination of the language of the case. Before 2015, the general rules were applicable, under which the language of the case was defined by the language of the application, and the defendant or the intervener could only choose another language if the applicant also agreed to its use or it was otherwise authorised, on request, by the

1 Partner, Danubia Legal – Luszcz Law Firm. Attorney at law specialising in European and Hungarian competition and intellectual property law, member of the Budapest Bar. Previously worked 11 years as a référendaire at the General Court of the EU. 2 Art 72 of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1) (EU Trade Mark Regulation); Art 61 of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1) (Community Design Regulation); Art 73 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1) (Community Plant Variety Regulation). 3 This holds true even if the 2018 Annual Report of the Court of Justice of the European Union (p. 44) mentions intellectual property cases as ‘direct actions’. 4 Statute, Art 53 explicitly mentions that the GC RoP may derogate from the general rules in respect of intellectual property cases.

General Rules 499 General Court.5 This could result in situations which were disadvantageous for the other party to the proceedings before the Boards of Appeal wishing to become an intervener, for instance, where the proceedings before the Boards of Appeal had been conducted in English, whereas the action before the General Court was brought in a different language with which the intervener’s representatives were not familiar.6 In those situations, the costs incurred by the intervener were increased by the expenses of translation. In 2015, 279 observations on the language of the case were filed by interveners with the Registry of the General Court.7 The GC RoP of 2015 addressed this issue and introduced the following new provisions in Article 45(4): [The language of a case shall be chosen by the applicant, except that] in proceedings brought against decisions of the Boards of Appeal of the Office [the EUIPO or the CPVO], referred to in Article 1, with respect to the application of the rules relating to an intellectual property regime: (a) the language of the case shall be chosen by the applicant if the applicant was the only party to the proceedings before the Board of Appeal of the Office [ex parte proceedings]; (b) the language of the application, chosen by the applicant … shall be the language of the case if another party to the proceedings before the Board of Appeal of the Office does not object to this within the time limit laid down for that purpose by the Registrar after the application has been lodged; (c) in the event of an objection to the language of the application by a party to the proceedings before the Board of Appeal of the Office other than the applicant, the language of the decision that is contested before the General Court shall become the language of the case; in such cases, the Registrar shall ensure the translation of the application into the language of the case.

It follows that under the new rules, if the applicant and the intervener do not agree on the language of the Court case, it will be conducted in the language of the contested decision, which corresponds to the language of the proceedings before the Boards of Appeal, deemed to be known by both parties. After the introduction of these new rules, the number of observations on the language of the case dropped from 279 (2015) to 33 (2016).8 Representation. Like in any other procedure before the EU Courts, the parties must be represented in intellectual property cases as well. The power of attorney must be annexed to both the application9 and the response. Patent and trade mark attorneys are not entitled to represent or assist parties before the EU Courts in intellectual property cases or in appeals against the decisions of the General Court (cf para 4.46). Applications signed by patent or trade mark attorneys are dismissed as inadmissible.10

5 Old GC RoP of 1991 Art 35; GC RoP of 2015 Art 45(1)–(2). 6 See, eg Case T-548/12 Deutsche Rockwool Mineralwoll v OHMI – Redrock Construction (REDROCK) [EU:T:2015:478]. The language of the proceedings before the EUIPO’s Boards of Appeal was English, with which both parties were familiar. However, the action before the General Court was brought in Czech. The intervener (a German company) raised an observation in order to change the language of the Court case to English however, in application of the old GC RoP of 1991, the language of the case remained Czech. 7 See 2016 Annual Report of the Court of Justice, p. 202; K Andová and E von Bardeleben, ‘La refonte du règlement de procedure du Tribunal de l’Union européenne: pour une efficacité juridictionnelle renforcée’ (2015/7) Europe étude 6, para 28. 8 2016 Annual Report of the Court of Justice of the European Union, p. 202. 9 Where no power of attorney is annexed, and the application is not put in order in the prescribed time limit, it will be dismissed as inadmissible. See Order of 20 July 2016 in Case T-19/16 Advanced Drainage Systems v EUIPO (THE MOST ADVANCED NAME IN WATER MANAGEMENT SOLUTIONS) [EU:T:2016:434] paras 10–15. 10 Order of 9 September 2004 in Case T-14/04 Alto de Casablanca v OHIM – Bodegas Chivite (VERAMONTE) [EU:T:2004:258] paras 9–11; Order of 20 October 2008 in Case T-487/07 Imperial Chemical Industries v OHIM (FACTORY FINISH) [EU:T:2008:453] para 22.

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500 Procedure in Intellectual Property Cases 4.377

Shorter written submissions. The Practice Rules of the General Court (GC PR) provide that the volume of the written pleadings and other submissions in intellectual property cases is considerably smaller than in the case of direct actions. The maximum number of pages is set as follows: 20 pages for the application and for responses; 15 pages for the cross-claim and for responses thereto; 10 pages for a plea of inadmissibility and for observations thereon; 10 pages for a statement in intervention and 5 pages for observations thereon.11 In case of excessive volume, the general rules apply (cf para 4.130).

4.3.3. Written Part of the Procedure 4.3.3.1. Application (i) Formal Requirements 4.378

The GC RoP. Article 177 of the GC RoP set outs the formal requirements relating to the application as follows: 1.

An application shall contain: (a) (b) (c) (d)

the name and address of the applicant; particulars of the status and address of the applicant’s representative; the name of the Office against which the action is brought; the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law; (e) the form of order sought by the applicant. 2. 3. 4. 5. 6.

Where the applicant was not the only party to the proceedings before the Board of Appeal of the Office, the application shall also contain the names of all the parties to those proceedings and the addresses which they had given for the purposes of notifications. The contested decision of the Board of Appeal shall be appended to the application. The date on which the applicant was notified of that decision must be indicated. An application made by a legal person governed by private law shall be accompanied by recent proof of that person’s existence in law (extract from the register of companies, firms or associations or any other official document). The application shall be accompanied by the documents referred to in Article 51(2) and (3). If an application does not comply with paragraphs 2 to 5, the Registrar shall prescribe a reasonable time limit within which the applicant is to put the application in order. If the applicant fails to put the application in order within the time limit prescribed, the General Court shall decide whether the non-compliance with that procedural requirement renders the application formally inadmissible.

The above provisions are similar to the content of the applications for annulment (cf para 4.108 et seq). A few specific features are noted below. 4.379

Evidence. Article 177(1) of the GC RoP does not mention evidence, in contrast to Article 76 of the GC RoP, which relates to direct actions. The possible reason for this difference is that the terms of the litigation are fixed before the Boards of Appeal12 and, as a rule, facts and evidence not submitted by the parties before the departments of EUIPO or the CPVO cannot be submitted at the stage of the appeal brought before the General Court (cf para 3.563). On the other

11 GC 12 GC

PR, para 107. RoP, Art 188.

Written Part of the Procedure 501 hand, there are some exceptions where the applicant is still allowed to bring new evidence before the General Court (for instance, in order to rebut the EUIPO’s statements on well-known facts, cf para 3.564).13 Therefore, it is advisable to annex relevant evidence to the application, as production of evidence at later stages of the procedure is restricted to new matters of fact (cf para 4.243), and late evidence not related to those new matters will be dismissed as inadmissible. Identification of the other party of the proceedings before the Boards of Appeal. The application must identify not only the defendant agency (the EUIPO or the CPVO), but also the other party to the proceedings before the Boards of Appeal, by also specifying his address.14 The explanation of this rule is that the application must be served on that other party,15 who may become an intervener on alleviated conditions (cf para 3.537) by simply responding to the application (cf para 4.386). The General Court ruled that the applicant’s mistake in identifying the other party did not entail the inadmissibility of the application where that application contained sufficient information for identifying that party and where the applicant accepted, in reply to a measure of organisation of procedure, the correction of the other party’s designation.16

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Mandatory annexes. Similarly to actions for annulment, a copy of the contested decision of the Board of Appeal of the EUIPO or the CPVO must be annexed to the application, and the date of its notification to the applicant must be specified.17 Furthermore, as in direct actions (cf paras 4.132–4.134) proof regarding the legal person’s existence in law18 and, in respect of the applicant’s representative, the authorisation to practice and the power of attorney must also be annexed.19 Where the applicant fails to annex one of these documents, the Registrar will call upon him to put the application in order. If the shortcomings are not mended within the prescribed time limit, the application may be dismissed as inadmissible20 (cf para 4.135).

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(ii) Clear and Precise Definition of the Subject Matter of the Action Same as in direct actions. Under Article 21 of the Statute and Article 177(1)(d) of the GC RoP, the application brought in an intellectual property case must contain the subject matter of the proceedings, the pleas in law and arguments relied on, and a summary of those pleas in law. The forms of order sought (heads of claim) may relate to annulment, alteration and costs (cf paras 3.552–3.558). As in direct actions, the application must comply with the requirements of clarity and precision: the essential matters of fact and law relied on must be stated, at least in summary form, coherently and intelligibly in the application itself, failing which the entire action is dismissed as inadmissible.21 The same requirement regarding clarity and precision is applicable to each head of claim22 and plea in law.23 References to annexes or to materials submitted in parallel

13 Case C-24/05 P Storck v OHIM [EU:C:2006:421] paras 50–52. 14 GC RoP, Art 178(2). 15 GC RoP, Art 178(1). 16 Case T-825/16 Cyprus v EUIPO – Papouis Dairies (Pallas Halloumi) [EU:T:2018:482] paras 18–19. 17 GC RoP, Art 177(3). 18 GC RoP, Art 177(4). 19 GC RoP, Art 177(5), referring to GC RoP, Art 51(2)–(3). 20 GC RoP, Art 177(6). 21 Case T-449/13 CEDC International v OHMI – Fabryka Wódek Polmos Łańcut (WISENT) [EU:T:2015:839] paras 16–18. 22 Case C-214/05 P Rossi v OHIM [EU:C:2006:494] para 37. 23 Case T-272/13 Max Mara Fashion Group v OHIM – Mackays Stores (M & Co) [EU:T:2014:1020] para 19; Case T-63/17 Grupo Orenes v EUIPO – Akamon Entertainment Millenium (Bingo VIVA ! Slots) [EU:T:2018:716] paras 23–26.

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502 Procedure in Intellectual Property Cases Court cases cannot substitute the essential content of the application24 (cf para 4.191). The application must be accurate and detailed; it is not for the Court to search and identify pleas and arguments in the application and its annexes that may support the applicant’s position.25 The case law developed on these issues in the context of direct actions (cf Subsections 4.2.2.2.–4.2.2.4) also applies to intellectual property cases. 4.383

Heads of claim – example. Under the GC PR, the precise wording of the forms of order sought must be stated either at the beginning or the end of the application (see also Subsection 4.2.2.3. Forms of Order Sought). An example is provided below: Form of order sought The applicant claims that the Court should: annul the decision of 4 December 2014 of the Fifth Board of Appeal of OHIM in Case R 1112/2014-5 insofar as in upholding in part the appeal brought by the applicant for the trade mark at issue, it overturned the Opposition Division’s decision upholding in part Opposition B 2 054 040 and refusing in part Community trade mark No 10 884 741 ‘Supeco’ (figurative); and order the party or parties opposing this action to pay the costs.26

(iii) Service of the Application and Transfer of the Case File 4.384

Service of the application. After the registration of the application, the Registrar of the General Court informs the defendant agency (the EUIPO or the CPVO) and all the parties to the proceedings before the Board of Appeal of the lodging of the application. The Registrar arranges for service of the application after determining the language of the case (cf para 4.375)27 and, where appropriate, for service of the translation of the application into the language of the case.28 After the 2018 amendment of the GC RoP, only e-Curia and certified copies sent by post can be chosen as methods of service.29

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Transfer of the case file. Once the application has been served, the defendant agency must forward to the General Court the file relating to the proceedings before the Board of Appeal.30 The EUIPO (or CPVO) case file is the main source of evidence in the proceedings before the General Court, since, bar some exceptions, the applicant and the intervener are not allowed to bring fresh evidence, as it would change the terms of the dispute before the Boards of Appeal (cf paras 3.562–3.563).

4.3.3.2. Response 4.386

The EUIPO (or the CPVO) and the other party to the proceedings may lodge a response. One of the particular features of the procedure in intellectual property cases is that the first written pleading submitted by the defendant is called not a ‘defence’, but a ‘response’. Most case law related 24 Case T-248/14 Masafi v OHIM – Hd1 (JUICE masafi) [EU:T:2015:880] para 14. 25 Case T-716/15 Gallardo Blanco EUIPO – Expasa Agricultura y Ganadería (H-shaped horsebit) [EU:T:2016:649] paras 21–25. 26 Action brought in Case T-126/15 El Corte Inglés v EUIPO – Grup Supeco Maxor (Supeco) [notice in the Official Journal]. 27 GC RoP, Art 45(4). 28 GC RoP, Art 178(1). 29 GC RoP, Art 178(2)–(3). 30 GC RoP, Art 178(5).

Written Part of the Procedure 503 to the defence in direct actions is transposable to the response. Another peculiarity is that the other party to the proceedings before the Boards of Appeal may also lodge a response, whereby he becomes an intervener.31 The response filed by that other party thus takes the place of a statement in intervention. Such interveners in intellectual property cases have much broader rights than interveners in direct actions, and may, for instance, put forward heads of claim in the response independently of the main parties (cf paras 3.539–3.540). Time limit. As is the case for the deadline for lodging the defence in direct actions, the time limit for filing the response is two months counted from the service of the application. Ten days are added on account of distance.32 That time limit may, in exceptional circumstances, be extended by the President33 at the reasoned request of the party concerned.34

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Content of the response. In respect of the content of the response, Article 180 of the GC RoP provides as follows:

4.388

1.

A response shall contain: (a) (b) (c) (d)

the name and address of the party lodging it; particulars of the status and address of the party’s representative; the pleas in law and arguments relied on; the form of order sought by the party lodging it.

Moreover, the response must also contain the proof of the intervener’s existence in law, as well as the power of attorney and the authorisation to practice.35 If the response does not comply with these requirements, the Registrar will call upon the party to put it in order. If the request is not complied with, the response may be dismissed as inadmissible (cf para 4.381). Substantive requirements. The response must fulfil the substantive requirements of clarity and precision (cf paras 4.138, 4.178 and 4.192–4.194), and general references to other documents without setting out the arguments in the text of the pleading are inadmissible. The case law related to the defence in direct actions may be applied.36

4.389

Specific rules as to judgment by default. An important difference from direct actions is that if the EUIPO or the CPVO fails to respond to the application within the prescribed time limit, but the other party to the proceedings before the Board of Appeal does lodge a response (and thus becomes an intervener), the case still continues before the General Court as between the applicant and the intervener. The rules on judgment by default (cf Chapter 5.9.) do not apply in this situation.37

4.390

No second exchange of pleadings. Under the old GC RoP of 1991, on the reasoned request of a party, the General Court could authorise the filing of replies.38 This possibility no longer exists in the new GC RoP of 2015. In contrast to direct actions (cf Section 4.2.4. Reply and Section 4.2.5. Rejoinder), there is no second exchange of pleadings in intellectual property cases, the reason

4.391

31 GC

RoP, Art 179. RoP, Art 60. 33 cf para 1.61. 34 GC RoP, Art 179. 35 GC RoP, Art 180(2). 36 T-416/12 HP Health Clubs Iberia v OHMI – Shiseido (ZENSATIONS) [EU:T:2014:104] paras 15–22. 37 GC RoP, Art 173(6). 38 Art 135(2) of the old GC RoP of 1991 (no longer in force). 32 GC

504 Procedure in Intellectual Property Cases being that the file and the parties’ arguments could already be amply examined by two instances of the EUIPO or the CPVO.39 Article 181 of the GC RoP thus provides that, with the exception of the situation where a cross-claim is raised, the written part of the procedure is closed after the submission of the response by the defendant and, where applicable, by the intervener.

4.3.3.3. Cross-claims 4.392

General. Cross-claims are specific to intellectual property cases and reflect the fact that these cases are appeals brought against decisions of the Boards of Appeal of the EUIPO or of the CPVO. They occur in situations where there are two private parties before a Board of Appeal (for instance, the party applying for registration of an EU mark and the opponent) and none of them is entirely satisfied with the decision of the Board of Appeal (cf para 3.560). Any request by the intervener to annul or alter the contested decision on a point in respect of which the applicant did not request annulment or alteration is regarded as a cross-claim.40

4.393

Time limit. Article 182(1) of the GC RoP prescribes that the parties to the proceedings before the Board of Appeal other than the applicant may submit a cross-claim within the same time limit as that prescribed for the submission of a response, which is two months counted from the service of the application on that other party, extended by 10 days on account of distance.

4.394

The cross-claim must be submitted separately. The cross-claim must be submitted by a document separate from the response.41 This requirement is taken very seriously by the Registry of the General Court. If a cross-claim is inserted into the response of the intervener and not submitted in a separate document, it will be dismissed as (manifestly) inadmissible.42 There is no second chance to put the response in order. If this procedural requirement is not complied with, the General Court will not examine the merits of the cross-claim.

4.395

Content of the cross-claim. As regards the content of the cross-claim, Article 183 of the GC RoP provides as follows: A cross-claim shall contain: (a) (b) (c) (d)

the name and address of the party lodging it; particulars of the status and address of the party’s representative; the pleas in law and arguments relied on; the form of order sought.

Article 184 of the GC RoP adds ‘that the cross-claim shall seek an order annulling or altering the decision of the Board of Appeal on a point not raised in the application’ and that ‘the pleas in law and arguments relied on shall identify precisely the points in the grounds of the decision being challenged that are contested’. The requirements regarding clarity and precision apply (cf para 4.382). 4.396

Response to the cross-claim. The other parties (ie the defendant and the applicant) may submit a pleading which is confined to responding to the form of order sought, the pleas in law and the 39 K Andová and E von Bardeleben, ‘La refonte du règlement de procedure du Tribunal de l’Union européenne: pour une efficacité juridictionnelle renforcée’ (2015/7) Europe étude 6, para 25. 40 Case T-184/16 NRJ Group v EUIPO – Sky International (SKY ENERGY) [EU:T:2017:703] para 31; Case T-824/16 Kiosked v EUIPO – VRT (K) [EU:T:2018:133] paras 20. 41 GC RoP, Art 182(1). 42 Case T-184/16 NRJ Group v EUIPO – Sky International (SKY ENERGY) [EU:T:2017:703] paras 31–32; Case T-824/16 Kiosked v EUIPO – VRT (K) [EU:T:2018:133] paras 20–21.

Oral Part of the Procedure 505 arguments relied on in the cross-claim, within two months of the cross-claim being served on them.43 That time limit is extended by 10 days on account of distance.44 The deadline may, in exceptional circumstances, be extended by the President45 at the reasoned request of the party concerned.46

4.3.3.4. Actions by the General Court Closure of the written part of the procedure. The written part of the procedure is closed after the submission of the last response to the main action47 or, where applicable, the last response to the cross-claim.48 Unlike in direct actions, there is no second exchange of pleadings since the entry into force of the GC RoP of 2015 (cf para 4.391).

4.397

Preliminary report, measures of organisation of procedure and measures of inquiry. After the reception of the last written pleading as translated into the working language of the EU Courts, the Judge-Rapporteur prepares the preliminary report (cf para 4.258 et seq) or, if there is no hearing, the draft judgment. The General Court may adopt measures of organisation of procedure in the same way as in the case of direct actions (cf para 4.269 et seq). These measures mainly consist in written questions and requests to focus on certain issues at the hearing (where appropriate), since most of the evidence is already available in the case file transferred by the EUIPO or the CPVO to the General Court (cf para 4.385) and the possibility to bring new evidence is limited. The general rules apply to measures of inquiry (cf para 4.285 et seq), which are rare in intellectual property cases, as there is usually no sensitive evidence that the defendant would be reluctant to make available to the other parties.

4.398

4.3.4. Oral Part of the Procedure Request for a hearing – the same rules apply as in the case of direct actions. The GC RoP of 2015 removed the difference regarding the oral hearing that previously existed between direct actions and intellectual property cases. The common rules are set out in Article 106 of the GC RoP and are further explained in the GC PR.49 The General Court shall arrange a hearing either of its own motion or at the request of a main party. (The intervener has the same procedural rights as the main parties, cf para 5.302.) The request for a hearing must be reasoned and submitted within three weeks after service on the parties of notification of the closing of the written part of the procedure. If no reasoned request is submitted by a party within the prescribed time limit, the Court may decide to rule on the action without an oral part of the procedure50 (cf para 4.316 et seq).

4.399

No new pleas at the hearing, as a rule. As regards submitting new evidence and raising new pleas in law at the hearing, the same restrictions apply as in direct actions. Under Article 84(1) of the GC RoP, ‘No new plea in law may be introduced in the course of proceedings unless it is based

4.400

43 GC

RoP, Art 185. RoP, Art 60. 45 cf para 1.61. 46 GC RoP, Art 185. 47 GC RoP, Art 181. 48 GC RoP, Art 186. 49 GC PR, paras 141–143. 50 See, eg Case T-231/18 Et Djili Soy Dzhihangir Ibryam v EUIPO – Lupu (Djili) [EU:T:2019:82]. 44 GC

506 Procedure in Intellectual Property Cases on matters of law or of fact which come to light in the course of the procedure’ (cf para 4.227 et seq and para 4.334 on the notion of new matters and the expansion of pleas in law). If the new plea in law raised at the hearing is not based on new matters, or the new arguments put forward at the hearing cannot be regarded as an expansion of a plea in law already present in the application, they will be dismissed as inadmissible.51

4.3.5. Closure of the Case 4.401

General. After the hearing, the case is put in the deliberation phase and the draft judgment is prepared. If there is no hearing, the draft judgment might be prepared straightaway after the close of the written part of the procedure or the reception of the replies of the parties to the measures of organisation of procedure. As regards the judgments and orders closing the case, the same rules apply as in direct actions (cf para 4.363 et seq).

51 Case T-774/16 Consejo Regulador del Cava v EUIPO – Cave de Tain L’Hermitage, union des propriétaires (CAVE DE TAIN) [EU:T:2018:441] para 65; Case T-664/13 Petco Animal Supplies Stores v OHIM – Gutiérrez Ariza (PETCO) [EU:T:2015:791] paras 24–27.

4.4. Procedure in Appeals [written by Viktor Bottka1]

4.4.1. Overview General. The present chapter complements Chapter 3.6. Appeals by describing the practical aspects and the course of the appeal procedure. As of 1 September 2016, when the Civil Service Tribunal ceased to exist, appeals may only be lodged with the Court of Justice against judgments and orders of the General Court. In 2018, 27% of the General Court’s decisions were appealed against.2 Appeals differ from first instance procedures by their relative speed3 and brevity in both the written and oral parts of the procedure,4 which suggests that the procedure is simpler. At the same time, there are complicating elements, such as the multiplicity of responses and potential cross-appeals against the same judgment, and the possible involvement of an Advocate General, who may ask specific questions and issue an Opinion that could influence the outcome of the case. The focus is also different, the appeal revolving around questions of law, whereas, at first instance, much of the debate is centred on the facts and evidence.

4.402

Novelties brought by the 2012 CJ RoP. The latest profound review of the Rules of Procedure of the Court of Justice (CJ RoP)5 ended in 2012. Several novelties were introduced in order to make appeal proceedings more streamlined and efficient. First, under Article 76 of the CJ RoP, the Court may henceforth dispense with a hearing regardless of a request by a party, while under the old Rules of Procedure of 1991 a hearing was held if requested. Secondly, Article 186(3) of the CJ RoP contains the new rule that an application for legal aid suspends, for the person applying for it, the time limit for bringing an appeal. Thirdly, Article 168(1) of the CJ RoP foresees that an appeal shall contain a reference to the decision of the General Court appealed against, meaning that it is no longer necessary to attach the appealed decision, as was required by the 1953 Rules of Procedure. Fourthly, Article 170(2) of the CJ RoP provides that, where the appellant requests that the case be referred back to the General Court if the decision appealed against is set aside, he shall set out the reasons why the state of the proceedings does not permit a decision by the Court of Justice. This rule aims to speed up proceedings by sending back only those cases that the Court of Justice cannot deal with right away, and provides the latter with the appellant’s perspective on this issue. Fifthly, Article 172 of the CJ RoP limits the authorisation to lodge a response to the appeal to those parties to the relevant case before the General Court who have an interest in the appeal being allowed or dismissed. It follows that being a party before the General Court, such as

4.403

1 Member of the Legal Service, European Commission. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the European Commission. 2 2018 Annual Report of the Court of Justice of the European Union, p. 45. 3 See 2014 Annual Report of the Court of Justice of the European Union, pp. 108 and 188: in 2014, the average length of an appeal procedure before the Court of Justice was 14.5 months, whereas before the General Court it was 12.8 months. By contrast, an action for annulment against a competition decision before the General Court lasted on average 45.8 months. 4 Usually a single written round, shorter page limits in submissions, limited pleading time and fewer questions at the oral hearing, which is often even omitted. 5 Rules of Procedure of the Court of Justice of 25 September 2012 (OJ 2012 L 265, p. 1).

508 Procedure in Appeals an intervener, no longer gives an automatic right to submit a response to an appeal (cf paras 3.609 and 3.612). Similarly, Article 179 of the CJ RoP limits the possibility to lodge a response only to those parties before the General Court that have an interest in the cross-appeal being allowed or dismissed, and specifies that it must be limited to the pleas in law relied on in that cross-appeal. Sixthly, Article 174 of the CJ RoP limits the form of order sought in the response to have the appeal allowed or dismissed, in whole or in part. Since a cross-appeal must now be lodged in a separate submission,6 the setting aside of the judgment may no longer be requested in the response (at most, all that may be requested is the substitution of its reasoning while leaving the conclusion in the form or order intact). Finally, Article 182 of the CJ RoP contains the new rule that a manifestly well-founded appeal or cross-appeal may be decided by a reasoned order in which reference is made to the relevant case law. 4.404

Clarifications brought by the 2012 CJ RoP. The 2012 CJ RoP also clarifies some procedural issues and codifies pre-existing case law. First, Article 169(1) of the CJ RoP specifies that an appeal shall seek to have set aside, in whole or in part, the decision of the General Court as set out in the operative part of that decision. This makes clear that an appeal may not be exclusively directed against the reasoning alone, but must also challenge the operative part. This does not exclude that the appellant also asks for a substitution of reasoning once the formal requirements for an appeal are otherwise met. Secondly, Article 169(2) of the CJ RoP codifies case law that the pleas in law and legal arguments relied on shall identify precisely the contested points in the grounds of the decision of the General Court. Thirdly, Article 175 of the CJ RoP indicates that the President of the Chamber may authorise a reply and rejoinder, in particular to enable the appellant to present his views on a plea of inadmissibility or on new matters relied upon in the response. He may limit the number of pages and the subject matter of those pleadings. This aims to reduce repetitions and speed up the proceedings. A similar rule was added in Article 180 of the CJ RoP for the reply and rejoinder on a cross-appeal. Lastly, Article 184 of the CJ RoP introduces more detailed rules on costs in appeals.

4.4.2. Considerations on Whether and How to Appeal 4.405

Preparation for the appeal. A party may well start preparations for lodging an appeal as early as during the first instance procedure, when he has the impression that he may lose the case on a certain aspect, for instance by judging from the types of questions at the oral hearing. Preparing an appeal is a very time-consuming and delicate process both for institutions or bodies and for private parties, as well as for their representatives. Once the first instance judgment is published, given the relatively short deadline of two months and 10 days, which cannot be extended (cf para 4.75), a strategic decision whether to appeal (cross-appeal) or not needs to be adopted quite quickly. In hierarchical institutions, such as the European Commission, a formal decision is adopted at the highest level (by the College of Commissioners) on lodging an appeal and on the main types of pleas envisaged. Several of the directorates general involved in adopting the original decision (which was affected by the first instance judgment) discuss the proposal to appeal. Appeals have reputational and legal cost aspects, and, for the Commission in particular, also the function of preserving the law in its role as ‘guardian of the Treaties’. Appealing on trivial matters may reduce the weight of an appeal by a party in general. It follows that appeals are usually initiated in serious cases where the question of law is clear. The aspect of collecting fines is not a

6 CJ

RoP, Art 176(2).

Considerations on Whether and How to Appeal 509 primary consideration for the Commission when deciding whether to appeal. For private parties, there is equally a reputational aspect in ‘being in the news’ while the Court case lasts and also if it is not successful. Costs are not decisive. The legal cost of an appeal is normally not a decisive factor for the choice to appeal, even for private parties, since the same law firms that have represented a company during the administrative procedure and before the General Court may rely on the same arguments and knowledge of the case they have already acquired. Unlike in certain national legal systems, there is no cost as such that would need to be paid to the Court of Justice for initiating a case. The legal costs of the Commission or other institutions or bodies are negligible,7 even when the Commission relies on an outside lawyer to assist its agents.8 Therefore, paying the costs of the institution in case of losing the appeal case is usually not a deterrent from appealing.

4.406

Appeals for delaying other legal effects? In competition cases, when several undertakings unsuccessfully challenge a cartel decision before the General Court, it may be a consideration for them to lodge an appeal simply to delay the moment when the cartel decision is definitive against the party in question. In fact, such a party may find itself a primary target of private damages cases brought before national courts in the EU9 and in third countries. In trade mark cases, appeals may be used to delay the effects of decisions of the EUIPO’s Boards of Appeal, since such a decision cannot take effect until the dismissal of the action brought against it before the General Court (cf para 3.525) and the confirmation of the General Court’s judgment or order on appeal, should there be one (cf para 3.587). The new rules on restricting appeals directed against first instance judgments or orders thus allow a quicker determination of issues relating to the existence and scope of EU trade marks (cf para 4.417).

4.407

Appeals have no suspensory effect. At the same time as deciding whether to appeal, the parties must also implement the judgment of the General Court, since appeals do not have a suspensory effect (cf para 3.585), save in the case of the annulment of a regulation (cf para 3.586).10 For an institution or body whose act was annulled as a result of a successful action for annulment, the implementation of the judgment may include the returning of a provisionally paid fine or guarantee,11 the readoption of the act annulled for a procedural issue (cf para 3.331)12

4.408

7 See Order of 22 March 2000 in Case T-97/95 (92) II Sinochem v Council [EU:T:2000:83] para 35, in which the General Court determined a lump sum of €260 (DEM 500) for the costs of the agent of the Council (the salary not being related specifically to the case). 8 See, eg Order of 3 November 2014 in Case T-381/06 DEP FRA.BO v Commission [no ECLI number] paras 44–45: ‘… In view of all the foregoing considerations, the costs recoverable by way of lawyers’ fees can be assessed on an equitable basis at EUR 17 000 … In respect of disbursements of its agent, the Commission is entitled to claim the reimbursement of EUR 260, an amount undisputed by FRA.BO, so that the total amount of the recoverable costs comes to EUR 17 260.’ 9 Art 11(1) of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1): ‘Joint and several liability: 1. Member States shall ensure that undertakings which have infringed competition law through joint behaviour are jointly and severally liable for the harm caused by the infringement of competition law; with the effect that each of those undertakings is bound to compensate for the harm in full, and the injured party has the right to require full compensation from any of them until he has been fully compensated.’ 10 Statute, Art 60. 11 Especially in competition cartel cases where the fines were reduced or annulled. 12 A procedural annulment is, for example, for lack of motivation in the decision, so it can still be readopted. By contrast, acts annulled on substance may not be readopted as they would infringe the non bis in idem principle, See Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P, C-251/99 P, C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission (PVC cartel) [EU:C:2002:582] paras 59–63.

510 Procedure in Appeals or compliance with the judgment of the Court that annulled an element of the fine and let the Commission correct the error by setting a new fine.13 (See also Subsection 3.1.8.3. on the duties of an institution or body regarding the eradication of the annulled act’s impacts.) For any party that may lodge an appeal and is concerned with the effects of the judgment, there is a possibility to ask for interim measures (cf Chapter 5.2. Interim Measures). It is worth noting that the appeal brought against a judgment of the General Court in an intellectual property case, when it is allowed to proceed, suspends the entry into force of the decision of the Board of Appeal, at least insofar as trade marks are concerned (cf para 3.587, cf para 4.407). 4.409

Appeals may be filed jointly or separately. Parties who were unsuccessful in the same case before the General Court (including joined cases) may choose to submit an appeal together or file separate appeals.14 There is no limitation on the types of appellants who may file together, but companies belonging to the same group often lodge common appeals. However, if they had different pleas in law at first instance, they normally cannot benefit from each other’s pleas, with the notable exception of the Tomkins case law.15 This is why normally those parties who submitted separate applications at first instance also file separate appeals. Interveners at first instance normally lodge appeals or cross-appeals separately from the main parties,16 mainly to maximise the space available for written pleadings (bearing in mind the page limits for each appeal) and to be able to plead longer at an oral hearing (more cases may mean more hearings, unless parties agree to join them). 13 See, eg Case T-404/12 Toshiba v Commission (gas insulated switchgear cartel) [EU:T:2016:18] para 10. This action for annulment was brought against Commission Decision C(2012) 4381 final of 27 June 2012 (Case COMP/39.966 – Gas Insulated Switchgear) amending, with regard to the fines, Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/F/38.899 – Gas Insulated Switchgear). In consequence of the annulment in part of the decision in COMP/F/38.899 by judgment of the General Court of 12 July 2011 in Case T-113/07 Toshiba v Commission (gas insulated switchgear cartel) [EU:T:2011:343], the Commission adopted a new decision on 27 June 2012 (in case COMP/39.966) correcting the errors it committed in the original, partially annulled decision. See also the similar Case T-409/12 Mitsubishi Electric v Commission (gas insulated switchgear cartel) [EU:T:2016:17]. 14 See, eg Order of 17 December 2015 in Joined Cases C-53/15 P to C-56/15 P Moreda-Riviere Trefilerías v Commission (prestressing steel cartel) [EU:C:2015:839]. In this set of cases, the four applicants, which were held jointly liable in the Commission cartel decision for belonging to the same undertaking, each time lodged four separate applications before the General Court against the original decision and also against the two amending decisions. Each of the four applicants had three parallel cases which even overlapped in some pleas. The General Court rejected the applications as manifestly inadmissible to the extent that they were directed against the first amending decision because they lacked any legal interest to challenge it (Orders of 25 October 2014 in Cases T-426/10, T-575/10, T-440/12, T-427/10, T-576/10, T-439/12, T-428/10, T-577/10, T-438/12, T-429/10, T-578/10 and T-441/12). The four entities lodged four separate appeals against these Orders, which were only joined for the purposes of the final ruling. In its order, the Court of Justice confirmed the General Court’s assessment. 15 In Case C-286/11 P Tomkins v Commission (copper alloy fittings cartel) [EU:C:2013:29] and in Case C-597/13 P Total v Commission (candle wax cartel) [EU:C:2015:613], the Court of Justice recognised an exception, in the competition law field, to the general rule further to which the General Court only needs to examine an action in light of the arguments which were put forward in it. Parent companies with derived liability for the infringement of competition rules need only to have a plea with the same object as the (possibly more detailed) plea in law put forward by their subsidiary in a separate Court case in order for the General Court to extend to them a reduction of the fine given to the subsidiary if that subsidiary’s plea is successful. However, this does not apply to situations where individual factors justify a different (higher) fine for the parent company. See, eg Case C-50/12 P Kendrion v Commission (plastic bags cartel) [EU:C:2013:771] para 66 (10% cap of the parent can exceed that of the sold subsidiary); Order of 7 February 2012 in Case C-421/11 P Total SA and Elf Aquitane SA v Commission (methacrylates cartel) [EU:C:2012:60] paras 82–83 (deterrence multiplier of the parent company can exceed that of the sold subsidiary); Case T-372/10 Bolloré v Commission (carbonless paper cartel) [EU:T:2012:325] paras 193–196 (prescription of the infringement committed by the subsidiary does not affect the fine for the parent if no prescription applies to parent company); Case C-238/12 P FLSmidth v Commission (plastic bags cartel) [EU:C:2014:284] para 85 (leniency reduction granted to the subsidiary does not apply to former parent company). 16 For example, in Case C-382/12 P MasterCard and Others v Commission [EU:C:2014:2201] and Case C-67/13 P Groupement des cartes bancaires (CB) v Commission [EU:C:2014:2204].

Written Part of the Procedure 511 Filing an appeal together? Advantages of filing appeals jointly include procedural economy,17 saving time and legal costs, and achieving a speedier resolution. There are, however, also counterarguments. Since page limits apply, all parties appealing together may submit only a single set of pleas limited to 25 pages for an appeal.18 Appealing separately allows for more pleading space both in writing and orally. More diverse pleas may be put forward, with parties splitting up the pleas between them and each specialising in a few pleas (however, this is not necessarily a winning strategy). Certain parties, in particular the Commission, prefer to keep their independence from any other party (be it EU institutions, private parties, Member States or interveners at first instance supporting it) and do not disclose their pleading strategy or pleas in advance.

4.410

4.4.3. Written Part of the Procedure 4.4.3.1. The Appeal (i) Formal Requirements Statute, CJ RoP, CJ PD. As regards the form and content of an appeal, the Article 58 of the Statute contains the following provisions:

4.411

An appeal to the Court of Justice shall be limited to points of law. It shall lie on the grounds of lack of competence of the General Court, a breach of procedure before it which adversely affects the interests of the appellant as well as the infringement of Union law by the General Court. No appeal shall lie regarding only the amount of the costs or the party ordered to pay them.

The detailed rules on formal requirements are set out in Articles 167–170 of the CJ RoP, and further guidance is provided in paras 21–25 of the CJ PD. Lodging the appeal. The appeal must be lodged with the Registry of either the Court of Justice or the General Court. The General Court must forthwith transmit to the Court of Justice the file in the case at first instance19 and, where necessary, the appeal.20 The common rules on lodging and service of documents apply (cf Section 4.1.6. Lodging, Service and Removal of Procedural Documents).

4.412

Content of the appeal. Article 168(1) of the CJ RoP sets out the essential formal requirements in respect of appeals:

4.413

1. An appeal shall contain: (a) (b) (c) (d) (e)

the name and address of the appellant; a reference to the decision of the General Court appealed against; the names of the other parties to the relevant case before the General Court; the pleas in law and legal arguments relied on, and a summary of those pleas in law; the form of order sought by the appellant.

The appeal must also state the date on which the decision appealed against was served on the appellant.21 This indication is important for verifying, in a transparent way for all parties, 17 It may be counterproductive to burden the Court with multiple procedures when a single case can achieve the same result. Parties rarely wish to be perceived as vexatious or tedious if they expect a favourable result from the Court (unless the main purpose of the case is to delay the definitive resolution of the matter). 18 CJ PD, para 21. 19 Including the case file received from the EUIPO or the CPVO in intellectual property cases (cf para 4.385). 20 CJ RoP, Art 167. 21 CJ RoP, Art 168(3).

512 Procedure in Appeals if the appeal has been lodged within the applicable time limit, which is two months22 plus 10 days counted from the service on the appellant of the judgment or order appealed against (cf para 3.617). The maximum volume of the summary of the pleas in law is set at two pages, and it is intended to facilitate the drafting of the notice on each case brought before the Court, which must be published in the Official Journal (cf para 4.126). 4.414

Rules on direct actions that also apply to appeals. The appeal procedure shares many commonalities with that followed in direct actions (cf para 4.18), which is also recognised in the CJ PD.23 Article 168(2) of the CJ RoP clarifies that the following provisions on direct actions apply to appeals: the obligation to be represented,24 information relating to service, such as the address for service,25 and the requirement that ‘the application shall be accompanied, where appropriate, by the documents specified in Article 21(2) of the Statute’.26 This last provision is difficult to interpret, given that these items normally form part of the first instance procedure file, which is automatically transmitted by the General Court to the Court of Justice (cf para 4.412), and that the judgment under appeal no longer has to be attached, only referred to.27 Presumably, if these items were missing from the first instance dossier, they have to be supplied with the appeal.

4.415

Putting the appeal in order. Article 168(4) of the CJ RoP allows for the possibility to put the appeal in order, if it does not comply with formal requirements, within the time limit prescribed by the Registrar. Failure to comply with the request of putting the appeal in order may result in inadmissibility.

4.416

Other formal requirements. As regards the size limit, the main body of an appeal should not exceed 25 pages,28 unless there are special circumstances.29 The formatting requirements are specified in paragraph 40 of the CJ PD.

4.417

Request for the appeal to proceed must be annexed to appeals concerning decisions of Boards of Appeal (inter alia EUIPO and ECHA decisions). As of 1 May 2019,30 Article 58a of the Statute limits the right to appeal against judgments and orders of the General Court concerning decisions of the Boards of Appeal of the European Union Intellectual Property Office (EUIPO), the Community Plant Variety Office (CPVO), the European Chemicals Agency (ECHA) and the European Union Aviation Safety Agency (cf para 3.594, cf para 4.423). The newly introduced Article 170a of the CJ RoP31 provides that the appellant must annex to the appeal a request that the appeal be allowed to proceed, setting out the issue raised by the appeal that is significant with respect to the unity, consistency or development of Union law, and containing all the information necessary to enable the Court of Justice to rule on that request. If there is no such request, 22 Statute, Art 56. 23 CJ PD, para 20. 24 CJ RoP, Art 119. 25 CJ RoP, Art 121. 26 CJ RoP, Art 122(1). Statute, Art 21(2) reads as follows: ‘The application shall be accompanied, where appropriate, by the measure the annulment of which is sought or, in the circumstances referred to in Article 265 of the Treaty on the Functioning of the European Union, by documentary evidence of the date on which an institution was, in accordance with those Articles, requested to act. If the documents are not submitted with the application, the Registrar shall ask the party concerned to produce them within a reasonable period, but in that event the rights of the party shall not lapse even if such documents are produced after the time limit for bringing proceedings.’ 27 CJ RoP, Art 168(1)(b). 28 Including the cover page, but if the table of annexes and contents is placed at the end, it can be added on top of the 25 pages. 29 CJ PD, para 21. 30 The Statute was amended by Regulation (EU, Euratom) 2019/629 of the European Parliament and of the Council of 25 April 2019 (OJ 2019 L 111, p. 1), which introduced a new Art 58a. 31 Inserted by the Amendments of the Rules of Procedure of the Court of Justice of 25 April 2019 (OJ 2019 L 111, p. 73).

Written Part of the Procedure 513 the Vice-President of the Court of Justice declares the appeal inadmissible. The request may not exceed seven pages. The new CJ PD of 2019 adds that the request must also contain all the information necessary to enable the Court of Justice to determine, where the appeal is to be allowed to proceed in part, the pleas in law of the appeal to which the response must relate. Furthermore, the request must, in any event, set out clearly and in detail the grounds on which the appeal is based, identify with equal clarity and detail the issue of law raised by each ground of appeal and state, specifically, how that issue is significant with respect to the unity, consistency or development of European Union law.32 If the content of the request does not convince the Court of Justice of the need to allow the appeal to proceed, the request is rejected and the appeal is inadmissible. Determination in this regard is made by a special Chamber presided over by the Vice-President of the Court of Justice (cf para 1.43, cf para 4.423). In case of non-compliance with formal requirements, the Registrar may set a deadline for putting the request in order. Failure to put the request in order may render the entire appeal inadmissible. (ii) Clear and Precise Definition of the Subject Matter of the Appeal The requirements of clarity and precision. Under Article 168(1)(b) and (d) of the CJ RoP, the appeal must contain a reference to the decision of the General Court appealed against, as well as the pleas in law and legal arguments relied on, and a summary of those pleas in law. Furthermore, Article 169(2) of the CJ RoP provides that ‘The pleas in law and legal arguments relied on shall identify precisely those points in the grounds of the decision of the General Court which are contested’. The requirements of clarity and precision are thus also applicable to the appeal (cf paras 4.138 and 4.178), mutatis mutandis. If the appeal is incomprehensible, it results in inadmissibility, at least in respect of those pleas in law and heads of claim which are affected by such a vice.33 Furthermore, general references to other documents (even if they are enclosed as annexes) without setting out the arguments in the text of the pleading are also inadmissible34 (cf paras 4.192–4.194). There is a specific situation where parallel appeals are filed by a subsidiary and its parent company against judgments of the General Court in competition cases (cf paras 4.193 and 4.409).

4.418

Forms of order sought – CJ RoP. Articles 169–170 of the CJ RoP relate to the essential part of the appeal, which is the form of order, in other words the request to the Court of Justice:

4.419

Article 169 Form of order sought, pleas in law and arguments of the appeal 1. 2.

An appeal shall seek to have set aside, in whole or in part, the decision of the General Court as set out in the operative part of that decision. The pleas in law and legal arguments relied on shall identify precisely those points in the grounds of the decision of the General Court which are contested.

Article 170 Form of order sought in the event that the appeal is allowed 1.

An appeal shall seek, in the event that it is declared well founded, the same form of order, in whole or in part, as that sought at first instance and shall not seek a different form of order. The subject matter of the proceedings before the General Court may not be changed in the appeal.

32 CJ PD, paras 23–25. 33 C-248/99 P France v Monsanto and Commission [EU:C:2002:1] paras 68–69; Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission (pre-insulated pipes cartel) [EU:C:2005:408] para 426. 34 CJ PD, para 44.

514 Procedure in Appeals 2.

4.420

Where the appellant requests that the case be referred back to the General Court if the decision appealed against is set aside, he shall set out the reasons why the state of the proceedings does not permit a decision by the Court of Justice.

Forms of order sought – example. An example for heads of claim (forms of order sought) is provided below: The appellants claim that the Court should: set aside the judgment of the General Court of 24 May 2012 in Case T-111/08, MasterCard and others v Commission; annul the Commission Decision C(2007) 6474 final of 19 December 2007 in Cases COMP/34.579 – MasterCard, COMP/36.518 – EuroCommerce, COMP/38.580 – Commercial Cards; order the Commission to pay the costs of the present proceedings, including the costs of the Applicants before this Court and before the General Court.35

In this example, the first head of claim is a request to set aside the judgment of the General Court which was appealed against (as required under Article 169 of the CJ RoP), while the second plea in law contains a request as regards the action to be taken by the Court of Justice in the event that the appeal is successful and the state of proceedings permits the Court to make a final decision on the matter. Pursuant to Article 170 of the CJ RoP, that head of claim must correspond to what was requested in the first instance proceedings.36 The third head of claim relates to costs, in accordance with the general requirement that the ‘unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings’.37 4.421

Pleas in law. Article 58 of the Statute determines the types of pleas that may be raised. The possible content of pleas in law is examined in Section 3.6.6. Grounds for Review. (iii) Actions by the Court of Justice upon Receiving the Appeal

4.422

Designation of the Judge-Rapporteur. The President of the Court designates the JudgeRapporteur for a case as soon as possible after the appeal has been lodged.38 The Judge-Rapporteur studies the case thoroughly and follows it from the start. When the written procedure is closed, the Judge-Rapporteur presents a preliminary report to the general meeting of the Court (cf para 1.44).

4.423

Decision on whether the appeal is allowed to proceed in Boards of Appeal cases (inter alia EUIPO and ECHA). As of 1 May 2019, there is a restriction on the right to appeal judgments and orders of the General Court concerning decisions of the Boards of Appeal of inter alia the EUIPO and the ECHA (cf para 3.594). The appellant must annex to the appeal a request that the appeal be allowed to proceed (cf para 4.417). Under Article 170b, the Court of Justice rules as soon as possible on the request. The decision is taken in the form of a reasoned order, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, by a Chamber specially established for that purpose, presided over by the Vice-President of the Court (cf para 1.43). Where the Court decides that the appeal should be allowed to proceed, wholly or in part, the proceedings continue

35 Appeal brought in Case C-382/12 P MasterCard and Others v Commission [notice in the Official Journal]. 36 In this example, the annulment of the Commission decision was contested in Case T-111/08 MasterCard and Others v Commission [EU:T:2012:260] para 54. 37 CJ RoP, Art 138. See also the specific rules on costs in appeals in CJ RoP, Art 184. 38 CJ RoP, Art 15.

Written Part of the Procedure 515 with the service of the appeal on the other parties, as in any other appeal. If the request is granted only in part, the order specifies which pleas in law are allowed.

4.4.3.2. Response and Possible Cross-Appeal Lodging the response and, where applicable, the cross-appeal. Once an appeal is lodged and is notified to the other parties, they may decide whether to send a response and whether to also cross-appeal. Following the new rule laid down in Article 176(2) of the CJ RoP, a cross-appeal must be introduced by a document separate from the response. If a party considers a crossappeal, he will normally also file a response to the main appeal. There is no requirement to do so, but a party which has sufficient interest in a case to lodge a cross-appeal would also wish to influence the course of the main appeal, all the more because of the dependence of the cross-appeal on the main appeal case (cf para 3.643). However, the pleas in law and legal arguments contained in the cross-appeal must be separate from those relied on in the response.39

4.424

Formal requirements. The CJ RoP sets out similar formal requirements for the lodging of the response and the cross-appeal:

4.425

Article 173 Content of the response 1.

A response shall contain: (a) (b) (c) (d)

2.

the name and address of the party submitting it; the date on which the appeal was served on him; the pleas in law and legal arguments relied on; the form of order sought.

Articles 119 and 121 of these Rules shall apply to responses [these relate to the obligation to be represented and the information relating to service such as the address for service].

… Article 177 Content of the cross-appeal 1.

A cross-appeal shall contain: (a) (b) (c) (d)

2.

the name and address of the party bringing the cross-appeal; the date on which the appeal was served on him; the pleas in law and legal arguments relied on; the form of order sought.

Articles 119, 121 and 122(1) and (3) of these Rules shall apply to cross-appeals [these relate to the obligation to be represented, the information relating to service, such as the address for service, and the documents specified in the second para of Article 21 of the Statute, cf para 4.414].

Size limit. The size limit corresponds to that of the appeal: subject to special circumstances, the response, the cross-appeal and the response to the cross-appeal should not exceed 25 pages each.40

4.426

Time limit for lodging the response. The response to an appeal must be lodged within two months after service of the appeal.41 This time limit is extended by 10 days on account of distance. However, a shorter deadline42 applies to written observations to appeals against interim measures

4.427

39 CJ PD, para 27. 40 CJ PD, paras 26–28. 41 CJ RoP, Art 172. 42 CJ PD, para 31: ‘Pursuant to the third paragraph of Article 57 of the Statute, such appeals are subject to the same procedure as an application for interim measures made directly to the Court. The parties are therefore set a short period

516 Procedure in Appeals orders (cf Subsection 5.2.7.1. Appealing the Interim Relief Order) and against orders dismissing applications for leave to intervene (cf para 3.592).43 4.428

Time limit for lodging the cross-appeal. The time limit for lodging a cross-appeal is the same as for the response, ie two months plus 10 days on account of distance after service of the appeal44 against final decisions of the General Court. For cross-appeals against interim measures orders and against dismissed interventions, presumably the same shorter deadline applies as for the written observations (cf para 4.427).45

4.429

Time limit for lodging the response to the cross-appeal. This deadline is defined in a uniform manner in Article 179 of the CJ RoP as within two months (plus 10 days on account of distance) after service of the cross-appeal, regardless of the type of decision appealed against (unless the Court sets a shorter deadline in the case of cross-appeals against interim measures orders and against dismissed interventions).

4.430

No extension of the time limit for lodging the cross-appeal and the response. As in the case of the appeal itself (cf para 3.617), no extension is possible as regards the time limits for lodging a response,46 a cross-appeal or a response to the cross-appeal.47 These deadlines belong to the category of procedural time limits to bring or join proceedings (cf para 4.75). In accordance with Article 45(2) of the Statute,48 the late submission of these documents may only be justified by the presence of unforeseeable circumstances or of force majeure (cf para 4.95 et seq).

4.431

Inadmissibility must be put forward in the response. In accordance with paragraph 26 of the CJ PD, any challenge to the admissibility, in whole or in part, of the appeal must be included in the actual body of the response, since the possibility – provided for in Article 151 of the CJ RoP – of raising a plea of inadmissibility in relation to the proceedings by a separate document is not applicable to appeals. In accordance with Article 178(2) of the CJ RoP, a cross-appeal ‘may also seek to have set aside an express or implied decision relating to the admissibility of the action before the General Court’ (cf para 3.643).

4.4.3.3. Reply and Rejoinder 4.432

General. Whether in the case of a main appeal or a cross-appeal, the appeal and the response may be supplemented by a reply and a rejoinder, in particular in order to allow the parties to adopt a position on a plea of inadmissibility or new matters raised in the response.

for the submission of any observations on the appeal and the Court rules on that appeal without any additional written part of the procedure, or even without an oral part of the procedure.’ 43 See Statute, Arts 39 and 57(3); CJ RoP, Art 160(5): ‘The application shall be served on the opposite party, and the President shall prescribe a short time limit within which that party may submit written or oral observations.’ In practice, this can mean about four weeks as an initial deadline to submit written observations, which may be extended. See, eg Order of 17 September 2015 in Case C-386/15 P(R) Alcogroup and Alcodis v Commission [EU:C:2015:623]. 44 CJ RoP, Arts 176 and 172. 45 The CJ RoP do not address this specific, and rather unlikely, situation. Under CJ PD, para 27: ‘That [cross-appeal] must be introduced by a separate document, within the same time limit which may not be extended as the time limit for submission of the response and meet the requirements set out in Articles 177 and 178 of the Rules of Procedure’. 46 CJ RoP, Art 172. This is a difference as compared to the first instance procedure before the General Court, where, although the time limit open for bringing an action for annulment is fixed in Article 263 TFEU, an extension of the time limit for lodging the defence is possible under GC RoP, Art 81(3). 47 CJ RoP, Art 179. 48 Statute, Art 45: ‘No right shall be prejudiced in consequence of the expiry of a time limit if the party concerned proves the existence of unforeseeable circumstances or of force majeure.’

Written Part of the Procedure 517 Application for a reply. Unlike the rules applicable to direct actions, the possibility of lodging a reply is made subject to the express authorisation of the President of the Court of Justice.49 To that effect, the appellant (or the party having brought the cross-appeal) is requested to submit, within a time limit of seven days from service of the response (or of the response to the cross-appeal), extended on account of distance by a single period of 10 days, a duly reasoned application setting out the reasons for which, in that party’s opinion, a reply is necessary. That application, which should not exceed three pages, must be intelligible in itself, without necessitating reference to the appeal or to the response.50

4.433

Substantive arguments in the application for a reply? Appellants often draft a rather detailed application for a reply (within the limit of the three pages allowed), in order to put the main arguments on the file, in preparation for the situation where their application for a reply is, in the end, not granted. It is, however, worth mentioning that if a response contests the admissibility of the appeal, the Court of Justice allows the appellants to reply at least on that particular point.51

4.434

Limitations as to size and content. The CJ PD set no page limits as regards the reply and the rejoinder. However, they provide that, due to the special nature of appeals, which are restricted to the examination of questions of law, the President52 may also, if he grants the application to lodge a reply, limit the number of pages and the subject matter of that reply, and of the subsequently submitted rejoinder. Exceeding the number of pages authorised or referring to other questions in the reply or the rejoinder will usually lead to the pleadings being sent back to their author.53 In practice, the letter from the Court authorising the reply and the later letter allowing the lodging of a rejoinder indicate the volume available to the parties. The size limit is usually set at around 6–12 pages.

4.435

4.4.3.4. The Preliminary Report and the Assignment of the Case The preliminary report. When the written part of the procedure is closed (after the reception of the last written pleading), the Judge-Rapporteur prepares the preliminary report and presents it to the general meeting of the Court of Justice. The preliminary report contains proposals on possible measures of organisation of procedure, measures of inquiry and the formation to which the case should be assigned. The Judge-Rapporteur may also propose in the report to dispense with a hearing or to dispense with an Opinion of the Advocate General.54

4.436

Assignment of the case. The Court of Justice normally assigns the case to the Chamber of the Judge-Rapporteur. Depending on the difficulty or importance of the case, it may be assigned to formations of five or three Judges. The most important cases are heard by the Grand Chamber. A Member State or an EU institution participating in the proceedings may request that the case be assigned to the Grand Chamber.55 The parties are informed about the designation of the Judge-Rapporteur, Advocate General and Chamber in the letter informing them about the closure of the written part of the procedure.

4.437

49 cf

para 1.36. PD, para 29. CJ RoP, Art 180(1). 52 cf para 1.36. 53 CJ PD, para 30. 54 CJ RoP, Art 59. 55 Statute, Art 16; CJ RoP, Art 60. 50 CJ

51 See

518 Procedure in Appeals

4.4.3.5. Measures of Organisation of Procedure and of Inquiry 4.438

General. Under Article 24 of the Statute, the Court of Justice may require the parties to produce all documents and to supply all information which the Court considers desirable. Measures of organisation of procedure or of inquiry may be prescribed by the Court of Justice in accordance with the general rules laid down in Articles 61–75 of the CJ RoP, which are applicable to all types of proceedings (direct actions, appeals, preliminary rulings, etc). These provisions, along with the applicable case law, are examined in detail in Section 4.2.7. Measures of Organisation of Procedure and of Inquiry (note: appeals are heard by the Court of Justice, thus only the CJ RoP are relevant).

4.439

Practice. Measures of organisation of procedure and of inquiry are usually adopted during the written part of the procedure. However, the Court may also prescribe them after the closing of that written part. The most frequent type of measures of organisation of procedure is written questions asked from the parties, to be answered either in writing or at the hearing.56 Such questions may be put to the parties by the Court as a body57 (after a decision in this regard by the general meeting of the Court of Justice, to which the preliminary report is submitted), by the Judge-Rapporteur or by the Advocate General, who may also request the parties ‘to submit within a specified time limit all such information relating to the facts, and all such documents or other particulars, as they may consider relevant’.58

4.4.4. Oral Part of the Procedure 4.440

General. The CJ RoP contain no specific provisions as to the oral part of the procedure in appeal cases. Paragraph 64 of the CJ PD only notes with regard to appeals that the parties to the proceedings in a direct action or an appeal are obliged to present oral argument, to make submissions in reply and to answer any questions put by the Court in the language of the case. The general rules, as explained in Section 4.2.8. Hearing, are thus applicable. Appeal hearings before the Court, if they are held, tend to be shorter than hearings before the General Court, and Judges keep a strict record of the time available to parties. The oral part of the procedure also includes the delivery of the Opinion of the Advocate General, where such an Opinion is prepared (cf Section 4.2.9. Opinion of the Advocate General).

4.4.5. Closure of the Case 4.4.5.1. Closure of the Case by a Judgment 4.441

Normally an appeal case ends with a judgment if the Court rules on the merits. In most cases, the Court of Justice delivers a judgment in appeal cases if it rules on the substance of the appeal (for the exceptions, cf paras 4.443–4.444). The content of the judgment is the same as in direct actions (cf paras 4.368–4.369). If the Court of Justice dismisses the appeal, the first instance 56 CJ RoP, Art 61. 57 CJ RoP, Art 61. 58 CJ RoP, Art 62. For an example, see Opinion of AG Mengozzi in Case C-287/11 P Commission v Aalberts Industries and Others (copper alloy fittings cartel) [EU:C:2013:119] para 117: the Advocate General put a question to the parties on the consequences to draw from the judgment in Case C-441/11 P Commission v Verhuizingen Coppens (Belgian removal services cartel) [EU:C:2012:778].

Closure of the Case 519 judgment or order stands. If the Court upholds the appeal, it has two options: (i) where the state of the proceedings so permits, it may itself give final judgment in the matter; (ii) if not, it may refer the case back to the General Court (cf Section 4.4.6. Procedure in Cases Referred Back to the General Court). The appellant may request that the case be referred back to the General Court; in such a request, he shall set out the reasons why the state of the proceedings does not permit a decision by the Court of Justice.59 This rule aims to speed up proceedings by sending back only those cases that the Court of Justice cannot deal with right away, and provides the latter with the appellant’s perspective on this issue. No judgments by default. An important difference from direct actions is that there are no judgments by default in appeal proceedings.60 This means that, even if certain or all respondents to an appeal fail to submit a response in time or in the right form, the Court of Justice will still render a normal judgment or order.

4.442

4.4.5.2. Closure of the Case by a Reasoned Order (i) Final Orders on the Substance of the Case Final order dismissing the appeal as manifestly lacking any foundation in law. The Court of Justice may dismiss the appeal or the cross-appeal by reasoned order if it considers that the action manifestly lacks any foundation in law. That type of order contains a ruling on the substance of the case. Under Article 181 of the CJ RoP,

4.443

Where the appeal or cross-appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal or cross-appeal in whole or in part.

This provision does not require that the Court also hears the parties before the adoption of such an order. Final order upholding the appeal as manifestly well founded. Similarly, the Court may declare by reasoned order that an appeal is manifestly well founded, thereby also ruling on the substance of the case. This solution may be chosen where the Court has already ruled on one or more questions of law identical to those raised by the appeal or cross-appeal (for the analogous rules concerning direct actions before the General Court, cf para 4.365). The Court of Justice acts on a proposal from the Judge-Rapporteur and hears the Advocate General, and the parties are equally consulted.61

4.444

(ii) Final Orders without Decision on the Substance of the Case Orders dismissing the appeal as inadmissible. When the Court dismisses the appeal as inadmissible, the case is terminated by a reasoned order (cf Section 5.7.1. Inadmissibility). Such orders may be adopted under two distinct provisions. First, Article 181 of the CJ RoP provides that at any time, acting on the proposal of the Judge-Rapporteur and after hearing the Advocate General,

59 CJ RoP, Art 170(2). 60 This follows from the fact that the rules on judgment by default are set out in Title IV ‘Direct Actions’ of the CJ RoP (Art 152), and the provisions under Title V ‘Appeals’ do not refer to this particular article, meaning that it is not applicable in appeal proceedings. 61 CJ RoP, Art 182.

4.445

520 Procedure in Appeals the Court of Justice may dismiss an appeal or cross-appeal, in whole or in part, as manifestly inadmissible. It is not required to ask the parties’ views (cf para 5.327). As an example, Article 181 of the CJ RoP was relied on for dismissing as manifestly inadmissible an appeal which was drawn up in a language other than the language of the first instance judgment,62 in breach of the language rules (cf para 4.26). Clearly, in this situation, there was no need to ask for the parties’ views, as such a defect of the appeal can be neither put in order nor explained. Secondly, Article 150 of the CJ RoP63 enables the Court at any time, of its own motion, after hearing the parties and the Advocate General, to decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case (cf para 5.324). Such an absolute bar may be present, for instance, where the appeal is time-barred, in which case the appeal is dismissed as inadmissible. The parties are allowed to present their views on this issue – in this example, the appellant may attempt to rely on unforeseeable circumstances or force majeure (cf paras 4.95–4.97). 4.446

Order stating that there is no need to adjudicate. Article 149 of the CJ RoP provides that if the action has become devoid of purpose and there is no longer any need to adjudicate on it, the Court may at any time, of its own motion, on a proposal from the Judge-Rapporteur and after hearing the parties and the Advocate General, decide to rule by reasoned order (cf Section 5.7.2. No Need to Adjudicate). Such an order may be issued, for instance, where the appellant loses his interest to act during the appeal proceedings because the Commission decision, upheld by the judgment under appeal, has been withdrawn.

4.4.6. Procedure in Cases Referred Back to the General Court 4.447

Case referred back to the General Court. Where, at the end of the appeal procedure, the Court of Justice sets aside (or ‘quashes’) the judgment or order of the General Court fully or in part, it may either itself give final judgment in the matter, where the state of the proceedings so permits, or refer the whole case or part of it back to the General Court for judgment (cf para 4.441).64 When the case is referred back to the General Court, the latter is seised of the case by the decision of the Court of Justice so referring it65 and is bound by the decision of the Court of Justice on points of law.66 In these repeated proceedings, the case number remains the same as in those that led up to the quashed judgment or order; however, the letters ‘RENV’ (which stand for ‘renvoi’, ‘referral’ in French) are added to it. The repeated procedure is governed by the same provisions of the GC RoP as the first procedure: Title III of the GC RoP with respect to direct actions (cf Chapter 4.2. Procedure in Direct Actions) and Title IV with respect to intellectual property cases (cf Chapter 4.3. Intellectual Property Cases), subject to the specific provisions laid down in Article 217 of the GC RoP, explained below (cf paras 4.448–4.450).

4.448

Procedure where the quashed decision was adopted after the closure of the written procedure on the substance. Where the decision (judgment or order), later set aside by the Court of Justice, was made after the written procedure before the General Court on the substance of the case had been closed, the parties to the proceedings before the General Court may lodge their

62 Order of 18 October 2018 in Case C-602/18 P Star Television Productions v EUIPO [EU:C:2018:849] paras 4–10. 63 This rule is placed in Title IV ‘Direct Actions’ of the CJ RoP; however, CJ RoP, Art 190 provides that it is also applicable to appeals. 64 Statute, Art 61(1). 65 GC RoP, Art 215. 66 Statute, Art 61.

Procedure in Cases Referred Back 521 written observations on the conclusions to be drawn from the decision of the Court of Justice for the outcome of the proceedings. These observations must be lodged within two months (plus 10 days added on account of distance) of the service on them of the decision of the Court of Justice; this time limit may not be extended.67 The General Court may allow supplementary statements of written observations to be lodged.68 Furthermore, nothing prevents the General Court from organising a hearing under the general procedural rules applicable to direct actions and to intellectual property cases. No new pleas in law are allowed, as a rule. In the situation described above (cf para 4.448), the General Court must rule again on all the pleas in law put forward by the applicant in support of his heads of claim in the original application, apart from those elements of the operative part of the first instance judgment which are not set aside by the Court of Justice and the considerations on which those elements are essentially founded, as those elements have acquired the authority of res judicata.69 The General Court thus examines again the same written pleadings that the parties submitted in the first procedure before it, as well as the written observations lodged by the parties after the judgment of the Court of Justice. However, the parties may not raise new pleas in law or submit new evidence in those observations as compared to the original written pleadings, unless they are based on matters of law or fact which have come to light during the course of the procedure70 (cf paras 4.227–4.234 and 4.243). The rules on amplification (expansion) of pleas in law that are already present in the first exchange of pleadings apply (cf para 4.235 et seq).

4.449

Procedure where the quashed order was adopted before the closure of the written procedure on the substance. Where the decision (normally an order) that was later set aside by the Court of Justice was made when the written procedure before the General Court on the substance of the case had not yet been closed, that procedure shall be resumed from the stage which it had reached.71 This applies, for example, where an order of the General Court dismissing an application for leave to intervene or an order on interim measures has been successfully appealed before the Court of Justice. The General Court must resume the first instance procedure at the very stage at which the quashed orders were adopted, that is, it must issue a new decision on intervention or interim measures (unless the Court of Justice gave a final ruling on these) and proceed to the subsequent steps in the first instance procedure. The same applies where the first instance procedure did not follow the usual course because the General Court dismissed the application as inadmissible in a reasoned order, either of its own motion or upon a plea of inadmissibility raised by the defendant, without closing the written procedure ‘on the substance of the case’.72 Where that order has been quashed by the Court of Justice, the General Court resumes the procedure. Unless the Court of Justice declared the action admissible, in the resumed first instance procedure, the General Court may still dismiss the action again as inadmissible for another reason or declare that there is no need to adjudicate.73 If no such incidental issue occurs, the next step taken

4.450

67 GC RoP, Art 217(1). 68 GC RoP, Art 217. 69 Joined Cases T-379/10 RENV and T-381/10 RENV Keramag Keramische Werke and Sanitec Europa v Commission [EU:T:2018:400] para 26. 70 GC RoP, Art 84; Case T-43/89 RV Gill v Commission [EU:T:1993:24] paras 46–64. 71 GC RoP, Art 217(2). 72 GC RoP, Art 217(1) only applies where the written procedure ‘on the substance of the case’ had been closed before the appeal. 73 See, eg Order of 29 June 2009 in Case T-94/05 RENV Athinaïki Techniki v Commission [EU:T:2009:224]. In the first procedure, the Commission raised a plea of inadmissibility without lodging a defence. The General Court upheld the plea and dismissed the action as inadmissible (Order of 26 September 2006 in Case T-94/05 Athinaïki Techniki v Commission [EU:T:2006:264]). The applicant appealed the order, whereupon the Court of Justice quashed it (Case C-362/09 P

522 Procedure in Appeals by the General Court will be to set a deadline for the defendant to submit the defence, or, if the defence had already been lodged in the first procedure, to set a deadline for the reply and subsequently for the rejoinder, if a second exchange of pleadings is allowed. That second exchange may give the opportunity for the parties to submit observations on the judgment of the Court of Justice quashing the first instance order. If the defence is submitted for the first time in the repeated procedure, the defendant may raise new pleas in law (since he has had no opportunity yet to submit arguments on the substance) and adduce new evidence. In every other situation, the same restrictions on submitting new pleas in law and evidence apply as in the case of a normal (ie non-repeated) first instance procedure (cf paras 4.227–4.235 and 4.243). 4.451

Repeated referrals. The judgment or order issued by the General Court in the repeated first instance procedure may itself be subject to an appeal. If that appeal is upheld, the case may be referred back to the General Court yet another time.74

Athinaïki Techniki v Commission [EU:C:2010:783]). The General Court resumed the first instance procedure and set a deadline for the Commission to submit its defence. Instead, the Commission lodged an application for declaration that the action had become devoid of purpose and there was no need to adjudicate. The General Court gave the opportunity to the applicant to express its views on this new application. Eventually, the General Court closed the case by declaring no need to adjudicate, in a reasoned order (Order of 29 June 2009 in Case T-94/05 RENV Athinaïki Techniki v Commission [EU:T:2009:224]). 74 An extreme example, where this referral happened twice and the Court of Justice rendered three decisions, was the Alumina State aid litigation. The case was definitively closed by the Court of Justice in Order of 7 December 2017 in Case C-323/16 P Eurallumina v Commission [EU:C:2017:952], Order of 7 December 2017 in Case C-373/16 P Aughinish Alumina v Commission [EU:C:2017:953] and Order of 7 December 2017 in Case C-369/16 P Ireland v Commission (alumina) [EU:C:2017:955].

4.5. Procedure in Preliminary Rulings [written by Alexandre Geulette1]

4.5.1. Overview General. The present chapter complements Chapter 2.2. Preliminary Rulings on Interpretation and Chapter 3.8. Preliminary Rulings on Validity by describing the practical aspects and the course of the preliminary ruling procedure. Furthermore, in addition to the content of the present chapter, the rules examined in Chapter 4.1. Common Rules on Procedure also apply to preliminary ruling proceedings. The main specificities of preliminary rulings as compared to direct actions are explained in Section 4.1.3. Types of Proceedings (cf para 4.19).

4.452

Procedural rules applicable to preliminary ruling proceedings. The special procedural rules that are only related to preliminary rulings are contained in Title III of the Rules of Procedure of the Court of Justice (CJ RoP) (Articles 93–118). Furthermore, the Court of Justice issues and regularly updates practical recommendations to national courts on the initiation of preliminary ruling proceedings (referred to as ‘Recommendations’ throughout this chapter).2 Even though the provisions in Title III of the CJ RoP set out detailed rules regarding the procedure before the Court of Justice, a number of aspects are still determined in accordance with national law, given the fact that the preliminary ruling procedure is an incident in the national procedure. This is particularly the case as regards the form of the order for reference (cf para 4.455), the rules on the determination of the language of the case (cf para 4.27),3 the representation of the parties (cf para 4.52),4 the determination of the ‘parties to the main proceedings’5 and the decision as to the costs of the preliminary ruling proceedings.6

4.453

Stages of the procedure. The preliminary ruling procedure before the Court of Justice consists of a written part and an oral part. The purpose of the written part of the procedure is to put before the Court the observations to be submitted by the persons referred to in Article 23 of the Statute (cf para 4.463) concerning the questions raised by the referring court or tribunal. The oral part of the procedure aims to allow the Court to complete its knowledge of the case by hearing submissions from those persons at a hearing and, if appropriate, by hearing the Opinion of the Advocate

4.454

1 Référendaire, European Court of Justice. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the Court of Justice. 2 Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1). On those Recommendations, see M-A Gaudissart, ‘Les nouvelles recommandations de la Cour de justice aux juridictions nationales, relatives à l’introduction de procédures préjudicielles’ Justice Actualités December 2019, 20. 3 CJ RoP, Art 37(3). 4 CJ RoP, Arts 47(2) and 57(1). 5 CJ RoP, Arts 97(2) and 97(3). 6 CJ RoP, Art 102; Recommendations, para 28.

524 Procedure in Preliminary Rulings General. The standard steps7 of the procedure before the Court of Justice in preliminary ruling proceedings are the following: i) Lodging of the request for a preliminary ruling (cf Section 4.5.2); ii) Registration, translation and service of the order for reference (cf Section 4.5.3); iii) Submissions of observations (cf Sections 4.5.4 and 4.5.5); iv) Preliminary report (the content is the same as in direct actions, cf Section 4.2.6); v) Oral hearing (cf Section 4.5.6); vi) Opinion of the Advocate General (the content is the same as in direct actions, cf Section 4.2.9); vii) Delivery of the judgment or order (cf Section 4.5.7).

4.5.2. Lodging the Request for a Preliminary Ruling 4.455

Form of the order for reference. The request for a preliminary ruling may be in any form allowed by national law in respect of procedural issues.8 Because it serves as the basis of the proceedings and is translated into all official languages of the EU (for purposes of notification to the parties to the main proceedings, to all Member States, to the European Commission and to other relevant EU institutions and bodies), the request for a preliminary ruling must be drafted simply, clearly and precisely by the referring court or tribunal, avoiding superfluous detail. In this context, about 10 pages are often sufficient to set out adequately the legal and factual context of a request for a preliminary ruling.9 Furthermore, the questions referred to the Court of Justice for a preliminary ruling must appear in a separate and clearly identified section of the order for reference, preferably at the beginning or the end. In order to make the request for a preliminary ruling easier to read, it is essential that the Court of Justice receives it in typewritten form10 and that the pages and paragraphs of the order for reference be numbered.11

4.456

Content of the order for reference. The content of a request for a preliminary ruling is specified in Article 94 of the CJ RoP, which must be scrupulously complied with, under penalty of inadmissibility (cf Subsection 2.2.4.3. Admissibility of the Reference – Issues Related to the Form of the Order for Reference). Indeed, the Court of Justice relies heavily on the information which is provided to it by the national court or tribunal, and it is the order for reference that serves as the basis for the procedure, not the case file which accompanies it, which is not translated into the working language of the Court (cf para 4.458). In principle, only the order for reference is notified to the interested parties. Therefore, under constant case law, an order for reference must be sufficiently comprehensive, detailed and precise in order to enable the Court of Justice to provide

7 Only those which have specific features in respect of the preliminary ruling procedure are examined in this section. 8 In its order in Case C-116/00 Laguillaumie [EU:C:2000:350] paras 10–11, the Court of Justice noted that, although the question from the referring court was set out in an undated document entitled ‘Request for a ruling to clarify the law’, which form is unusual, it was not for it, in view of the distribution of functions between itself and the national court, to determine whether the decision whereby a matter is brought before it was taken in accordance with the rules of national law governing the organisation of the courts and their procedure. 9 Recommendations, para 14. Where an order of reference is too lengthy, it will be summarised by the Court of Justice. 10 Even though there were, in the past, handwritten orders for reference, which have not been deemed inadmissible on this specific account. 11 Recommendations, para 20.

Lodging the Request for a Preliminary Ruling 525 an answer based on a sufficient understanding of the legal questions involved. In this regard, the essential elements of a request for a preliminary ruling are as follows: i) ii) iii) iv)

v)

vi)

vii)

the name and full contact details of the referring court or tribunal and, where appropriate, the relevant chamber or formation; the names and full contact details (postal address, telephone or fax number, email address) of the parties to the main proceedings and their representatives; the subject matter of the dispute in the main proceedings and the relevant facts, as determined by that court or tribunal;12 the relevant national legal provisions (in quotes, as well as their precise title and the publication references) and case law (including the ECLI number of the references concerned), as well as the provisions of EU law whose interpretation is sought or whose validity is challenged; the reasons which prompted the national court or tribunal to inquire about the interpretation or validity of provisions of EU law, and the relationship between those provisions and the national legislation applicable to the main proceedings (if it considers it helpful for the purposes of understanding the case, the referring court or tribunal may set out here the arguments of the parties in that regard); the questions referred for a preliminary ruling and the referring court’s or tribunal’s view on the answer to be given to the questions referred for a preliminary ruling (it must be possible to understand them on their own terms, without it being necessary to refer to the statement of the grounds for the request13); the possible need for specific treatment (such as requests for anonymity or necessity of expedited or urgent procedure, and the reasons therefor, which must be set out in detail in the request for a preliminary ruling and in any covering letter).14

Language of the order for reference. As previously indicated (cf para 4.27), in preliminary ruling proceedings, the language of the case is the language of the referring court or tribunal.15 In most cases, the language of the case corresponds to one of the official languages of the Member State from which the request for a preliminary ruling emanates. However, this is not always the case.16

4.457

Lodging of the order for reference. Article 23 of the Statute provides that the decision of the court or tribunal of a Member State which refers a case to the Court of Justice ‘shall be notified to the Court by the court or tribunal concerned’. Historically, requests for preliminary rulings (which must be dated and signed) have been sent, by registered mail, to the Registry of the Court of Justice). However, for reasons connected, in particular, with the need to ensure expeditious handling of the case and optimal communication with the referring court or tribunal, the Court of Justice currently recommends that national courts and tribunals use the e-Curia application (cf para 4.59). The rules on access to that application, which enables procedural documents to

4.458

12 The Court of Justice has held in this regard that Art 267 TFEU and Art 94 of the CJ RoP preclude a national rule which is interpreted in such a way as to oblige a referring court or tribunal to disqualify itself from a pending case, on the ground that it set out, in its request for a preliminary ruling, the factual and legal context of that case (Case C-614/14 Ognyanov [EU:C:2016:514] para 26). 13 Recommendations, para 19. 14 Recommendations, paras 14–20 and Annex. 15 CJ RoP, Art 37(3). 16 See, eg the requests for preliminary rulings in German originating from referring courts in Bolzano, South Tyrol, Italy (Case C-435/97 WWF and Others [EU:C:1999:418]; Case C-458/03 Parking Brixen [EU:C:2005:605]; Joined Cases C-55/07 and C-56/07 Michaeler and Others [EU:C:2008:248]; Case C-322/13 Grauel Rüffer [EU:C:2014:189]) and

526 Procedure in Preliminary Rulings be lodged and served electronically, and the conditions of use of e-Curia may be viewed on the institution’s website.17 Furthermore, in order to facilitate the Court’s processing of requests for a preliminary ruling and, in particular, their translation into all the official languages of the European Union, national courts and tribunals are requested, in addition to sending the original version of the request for a preliminary ruling via e-Curia, to send an editable version of that request by email18 to the Court.19 The request must be accompanied by any relevant documents, in particular the file of the case in the main proceedings or a copy of it (if it is not sent together with the order for reference, it will be requested from the referring court or tribunal by the Registry of the Court of Justice), which will be retained at the Registry throughout the proceedings where, unless otherwise indicated by the referring court or tribunal, it may be consulted by the interested persons mentioned in Article 23 of the Statute. 4.459

Effects of the lodging of the order for reference on the national proceedings. Since the purpose of the preliminary ruling procedure is to allow a national court to obtain guidance from the Court of Justice to enable it to decide a case pending before it, the lodging of a request for a preliminary ruling calls for the national proceedings to be stayed until the Court of Justice has given its ruling.20 The referring court or tribunal may still adopt certain measures, such as granting interim relief pending the judgment of the Court of Justice.21 A referring court or tribunal may also withdraw a request for a preliminary ruling when it is no longer warranted (cf para 2.133), provided that the notice of the date of delivery of the judgment has not been served on the interested persons referred to in Article 23 of the Statute.22 In this regard, it is the duty of the referring court or tribunal to inform the Court of Justice of any procedural steps that may affect the referral.23

4.5.3. Registration, Translation and Service of the Order for Reference 4.460

Registration of the order for reference and publication of a notice in the Official Journal. Upon receipt, the Registry of the Court of Justice registers the request for a preliminary ruling and assigns a serial number to it (preceded by C- and followed by the year). A notice indicating the date of lodging of the request for a preliminary ruling, the referring court or tribunal, the names of the parties to the main proceedings or the initials replacing a name, as well as the questions referred to the Court, is then published in the Official Journal.24

4.461

Translation and service of the order for reference (or a summary thereof). The request for a preliminary ruling is translated into all official languages of the EU25 and is served by the Registrar on all Member States,26 both in the original language and in the official language of the State the request for a preliminary ruling in Slovenian from a referring court in Bleiburg, Austria (Case C-33/17 Čepelnik [EU:C:2018:896]). 17 https://curia.europa.eu/jcms/jcms/P_78957/en/. 18 [email protected]. 19 Recommendations, para 23. 20 Statute, Art 23. 21 Case C-213/89 Factortame and Others [EU:C:1990:257] para 21; Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest [EU:C:1991:65] paras 21 and 33. 22 CJ RoP, Art 100(1). 23 Recommendations, para 26. 24 CJ RoP, Art 21(5). 25 Given the number of official languages, not all translations are made from the order for preliminary reference in its original language, some being made from bridge languages (‘langues-pivot’). 26 It is sent to the Ministry of Foreign Affairs, as well as to the Permanent Representation of the Member State concerned in Brussels.

Participation in Preliminary Ruling Proceedings 527 to which it is being addressed, as well as on the parties to the main proceedings and the European Commission. It is also served on the European Free Trade Association (EFTA) States which are parties to the Agreement on the European Economic Area (EEA) (throughout this book: ‘EEA EFTA States’) and also on the EFTA Surveillance Authority in the original version, accompanied by a translation of the request or, where appropriate, of a summary, into one official language, as chosen by the addressee.27 The order for reference is also notified to the EU institution or body which adopted the act the validity or interpretation of which is in dispute and, exceptionally, to other EU institutions or bodies not being parties to the case if it considers it necessary that they supply information to it.28 In order to cut down on the necessary translation work, orders for reference which exceed 20 pages are summarised by a jurist of the Court of Justice before being translated and distributed to those listed in Article 23 of the Statute (cf para 4.463). The summary always includes the full text of the questions referred for a preliminary ruling as well as, insofar as that information appears in the request for a preliminary ruling, the subject matter of the main proceedings, the essential arguments of the parties to those proceedings, a succinct presentation of the reasons for the reference for a preliminary ruling, and the case law and the provisions of national and EU law relied on.29 Designation of the Judge-Rapporteur. As soon as possible after the order for reference has been lodged, the President of the Court designates a Judge to act as rapporteur in the case, and the First Advocate General assigns the case to an Advocate General.30

4.462

4.5.4. Participation in Preliminary Ruling Proceedings Article 23 of the Statute provides an exhaustive list of those entitled to participate in preliminary ruling proceedings. Those who are authorised31 to submit observations to the Court of Justice in preliminary ruling proceedings are (i) the ‘parties to the main proceedings’ (cf para 4.464); (ii) the Member States; (iii) the Commission; (iv) the institution or body which adopted the act the validity or interpretation of which is in dispute; (v) the States, other than the Member States, which are parties to the EEA Agreement (EEA EFTA States), as well as the EFTA Surveillance Authority, where a question concerning one of the fields of application of the EEA Agreement is referred to the Court for a preliminary ruling; and (vi) non-Member States which are parties to an international agreement relating to a specific subject matter, concluded with the Council, where the agreement so provides and where a court or tribunal of a Member State refers to the Court of Justice for a preliminary ruling a question falling within the scope of that agreement.32 Except for those expressly mentioned in Article 23 of the Statute, parties not involved in the action before the national court have no right to submit statements or written observations as interveners or amicus curiae, even if they have some interest in the outcome

27 CJ RoP, Art 98(2). 28 Statute, Art 24. 29 CJ RoP, Art 98(1). 30 CJ RoP, Arts 15–16. 31 There is indeed no requirement for the parties to the dispute in the main proceedings to submit observations to the Court of Justice in the context of preliminary ruling proceedings (Case C-518/16 ZPT [EU:C:2018:126] para 32). 32 See, eg Art 2 of Protocol 2 on the uniform interpretation of the Convention and on the Standing Committee of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed in Lugano on 30 October 2007 (OJ 2009 L 147, p. 5).

4.463

528 Procedure in Preliminary Rulings of the preliminary ruling proceedings.33 The Court of Justice thus held that Article 40 of the Statute, which authorises persons which can establish an interest in the result of a case submitted to the Court of Justice to intervene in cases before it, is not applicable to preliminary ruling proceedings.34 4.464

The referring court or tribunal determines the ‘parties to the main proceedings’ in accordance with the national procedural rules. By the expression ‘parties’, Article 23 of the Statute refers only to the parties to the action before the national court.35 Where a new party has been admitted to the main proceedings before the national court or tribunal, and provided that the Court of Justice is informed thereof by the referring court or tribunal itself (ie not by the party newly admitted to the proceedings), such a party will be considered as a ‘party to the main proceedings’, for the purpose of Article 23 of the Statute. If the proceedings before the Court of Justice are already pending, that party must accept the case as it is at the time when the Court of Justice is so informed, and will receive a copy of every procedural document already served.36 It is noteworthy that on one occasion, the President of the Court of Justice rejected an application to participate in the proceedings lodged by legal persons which had been admitted to participate in the national proceedings, because it was apparent from the relevant order of the referring court that these persons had become parties to the main proceedings only with a view to participating in the proceedings before the Court of Justice and not to play an active part in the proceedings before the national court after delivery of the judgment giving a preliminary ruling37 (cf para 5.238).

4.465

The Court of Justice will respect anonymity which has been granted by the referring court or tribunal. Where anonymity has been granted by the referring court or tribunal, the Court of Justice will respect that anonymity in the preliminary ruling proceedings pending before it. The Recommendations provide in this regard that, in order to ensure optimal protection of personal data, the referring court or tribunal, which alone has full knowledge of the file submitted to the Court, is invited to anonymise the case by replacing, for example by using initials or a combination of letters, the names of individuals referred to in the request and by redacting information that could identify them.38 Furthermore, under the CJ RoP, at the request of the referring court or tribunal, at the duly reasoned request of a party to the main proceedings or of its own motion, the Court of Justice may also, if it considers it necessary, render anonymous one or more persons or entities concerned by the case.39 The new CJ PD of 2019 extended the protection of personal data in preliminary ruling proceedings. Henceforth, the Court of Justice, as a general rule, deals with preliminary ruling cases in anonymised form. This approach means in practice that, unless there are special circumstances, the Court will redact the names of individuals mentioned in the request for a preliminary ruling and, if necessary, other information that may enable them to be identified, if the referring court or tribunal did not do so before submitting its request. All interested persons referred to in Article 23 of the Statute are requested to respect, in their written

33 Order of 12 September 2007 in Case C-73/07 Satakunnan Markkinapörssi and Satamedia [EU:C:2007:507] para 12; Order of 13 January 2010 in Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert [EU:C:2010:284] para 8. 34 Order of 13 January 2010 in Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert [EU:C:2010:284] paras 4–7. 35 Order of 12 September 2007 in Case C-73/07 Satakunnan Markkinapörssi and Satamedia [EU:C:2007:507] para 11. 36 CJ RoP, Art 97(2). 37 Order of 16 December 2009 in Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others [EU:C:2008:789] paras 9–11. 38 Recommendations, para 21. 39 CJ RoP, Art 95.

Written Part of the Procedure 529 observations or oral submissions, the anonymity thus conferred.40 In any event, where a party to proceedings before the Court does not wish his or her identity or certain details concerning him or her to be disclosed in a case brought before the Court – or, conversely, where that party does wish his or her identity and those details to be disclosed in the context of that case – it is open to that party to contact the Court so that the Court may decide whether or not to anonymise the relevant case, in whole or in part, or to maintain the anonymity previously conferred. To be effective, such an application must, however, be made at as early a stage as possible. Granting anonymity becomes much more difficult if the notice of the case concerned has already been published in the Official Journal or if the request for a preliminary ruling has already been served on the interested persons referred to in Article 23 of the Statute, about one month after the request has been lodged at the Court.41 A party to the main proceedings may apply for legal aid. A party to the main proceedings who is wholly or partly unable to meet the costs of the proceedings before the Court of Justice may apply for legal aid at any time (cf Section 5.10.8. Legal Aid). The decision to grant or refuse legal aid is taken by the Chamber of three Judges to which the Judge-Rapporteur is assigned. A decision granting legal aid may be withdrawn if the circumstances which led to its being granted alter during the proceedings.42

4.466

4.5.5. Written Part of the Procedure 4.5.5.1. Written Observations Interested persons have two months plus 10 days to submit written observations. Within two months of the notification of the order for reference, which is extended by 10 days on account of distance,43 the interested persons mentioned in Article 23 of the Statute (cf para 4.463) are entitled to submit written observations to the Court of Justice44 (cf Section 4.1.7. Time Limits). Even though Article 45(2) of the Statute provides for the possibility for the Court of Justice to allow the submission of late written statements if the party concerned proves the existence of unforeseeable circumstances or of force majeure, the Court of Justice has construed these notions very narrowly (cf para 4.95 et seq).

4.467

Size limit and annexes. The lodging of the written observations is not subject to specific formalities, though the length thereof should not exceed 20 pages.45 It is possible to provide annexes to said observations, though these are in principle not translated into French, the working language of the Court of Justice.

4.468

There is only one round of written observations. Given the specific nature of the preliminary ruling proceedings, interested persons have only one opportunity to submit written observations, which are sent to the other parties to the proceedings. As a general rule, those persons therefore do not know, at the time they make those observations, what position will be adopted by other interested persons on the same questions. In addition, it is not possible to reply to arguments or

4.469

40 CJ

PD, para 7. PD, para 9. 42 CJ RoP, Arts 115–118. See also Supplementary RoP Arts 4–5. 43 CJ RoP, Art 51. 44 CJ RoP, Art 96(1). 45 CJ PD, para 12. 41 CJ

530 Procedure in Preliminary Rulings points in law made by other parties in written observations, save at an oral hearing, provided the Court of Justice decides to hold such a hearing. 4.470

Failure to lodge written observations does not preclude participation at the oral hearing. Non-participation by a person referred to in Article 23 of the Statute in the written part of the procedure does not preclude participation in the oral part of the procedure.46 In such a case, the Court of Justice will have to hold a hearing, even if it considers, on reading the written pleadings or observations lodged during the written part of the procedure, that it has sufficient information to give a ruling,47 provided that (i) such a person has submitted a reasoned request for a hearing, specifically detailing the reasons why it considers such a hearing necessary (ie the mere statement that one has not submitted written observations is in this regard insufficient) and (ii) he or she is validly represented at the hearing.48

4.5.5.2. The Preliminary Report 4.471

General. When the written part of the procedure is closed (after the reception of the last written observation) and after the Judge-Rapporteur has been provided with the translation thereof in French, which is the working language of the Court of Justice, the Judge-Rapporteur prepares the preliminary report within six weeks, and submits it for approval to the Advocate General assigned to the case. The preliminary report is then presented to the general meeting of the Court of Justice. The preliminary report contains proposals on possible measures of organisation of procedure, measures of inquiry, the formation to which the case should be assigned and whether an Opinion of the Advocate General is warranted. The Judge-Rapporteur may also propose in it to dispense with a hearing or to dispense with an Opinion of the Advocate General.49

4.5.5.3. Measures of Organization of Procedure and Measures of Inquiry 4.472

General. Measures of organisation of procedure or of inquiry may be prescribed by the Court of Justice in accordance with the general rules laid down in Articles 61–75 of the CJ RoP applicable to all types of proceedings (direct actions, appeals, preliminary rulings, etc). These provisions, along with the applicable case law, are examined in detail in Section 4.2.7 above (NB: preliminary ruling proceedings are only conducted by the Court of Justice – cf para 2.67). In particular, the Court may invite the parties, or the interested persons referred to in Article 23 of the Statute, to produce specific documents or answer certain questions in writing, either within the time limit laid down by the Court or at the hearing. The written replies must be communicated to the other parties and interested persons. The Court may also invite the parties and interested persons to focus on one or more specified issues at the hearing.50 At that stage, the Court of Justice may still ask the national court for further information pursuant to Article 101 of the CJ RoP. While measures of inquiry – which essentially aim to establish the set of facts – are not prescribed in preliminary proceedings on interpretation, since the facts of the litigation are established by the national court making the preliminary reference, such measures may be ordered in preliminary ruling proceedings concerning the validity of an EU measure (cf Chapter 3.8).

46 CJ

RoP, Art 96(2). RoP, Art 58. 48 Case C-23/12 Zakaria [EU:C:2013:24] paras 24–27. 49 CJ RoP, Art 59. 50 CJ RoP, Art 61. 47 CJ

Ruling of the Court of Justice 531

4.5.6. Oral Part of the Procedure Request for a hearing. Any request for a hearing must be made within three weeks of the notification of the closing of the written procedure and must contain a statement of reasons. Interested persons wishing the Court of Justice to hold a hearing must therefore specifically state the reasons for which they so wish (cf paras 4.311–4.313). Indeed, the Court may decide not to hold such a hearing if it considers, on reading the written pleadings or observations lodged during the written part of the procedure, that it has sufficient information to give a ruling.51

4.473

Practice. The issues debated at the hearing may be determined, to some extent, by the measures of organisation of procedure. The Court of Justice, the Judge-Rapporteur or the Advocate General may invite the parties or the interested persons referred to in Article 23 of the Statute to answer certain questions at the hearing, and the Court may invite the participants in that hearing to coordinate their oral pleadings or to concentrate in their oral pleadings on one or more specified issues.52 Furthermore, given the limited pleading time (normally 15 minutes, which is rarely extended), it may be useful for interested parties sharing the same interest to discuss the possibility of focusing on different issues. In order to ease the interpretation work, it may be helpful to communicate the pleadings to the interpretation division of the Court ahead of the hearing (cf para 4.324).

4.474

AG Opinion. The oral part of the procedure also includes the delivery of the Opinion of the Advocate General, where such an Opinion is prepared (cf Section 4.2.9. Opinion of the Advocate General).

4.475

4.5.7. Ruling of the Court of Justice 4.5.7.1. Closure of the Case by Judgment General. In 2018, the Court of Justice closed 354 preliminary ruling proceedings with a judgment, out of which 10 judgments were delivered in an urgent preliminary ruling procedure. The judgment is served on the referring court or tribunal as well as on the interested persons referred to in Article 23 of the Statute.53

4.476

Interpretation. Preliminary rulings cannot be the subject matter of a request for interpretation.54 Should a question arise in that respect, the referring court or tribunal may seek an interpretation of a ruling by way of a fresh request for a preliminary ruling (cf para 2.101).

4.477

Rectification. Clerical mistakes, errors in calculation and obvious inaccuracies affecting judgments or orders may be rectified by the Court of Justice after hearing the Advocate General, of its own motion or at the request of an interested person referred to in Article 23 of the Statute made within two weeks after delivery of the judgment or service of the order55 (cf para 5.459).

4.478

51 CJ

RoP, Art 76(2). RoP, Arts 61–62. 53 CJ RoP, Art 88. 54 CJ RoP, Art 104. 55 CJ RoP, Art 103. 52 CJ

532 Procedure in Preliminary Rulings

4.5.7.2. Closure of the Case by Reasoned Order in a Simplified Procedure 4.479

General. In 2018, the Court of Justice closed 74 preliminary ruling proceedings with a reasoned order.

4.480

Inadmissible reference. Under Article 53(2) of the CJ RoP, a reference may be decided by way of a reasoned order where the Court of Justice has no jurisdiction to hear and determine a case or where the request for a preliminary ruling is manifestly inadmissible.56 The decision to rule by reasoned order may be taken by the Court at any time, after hearing the Advocate General, without taking further steps in the procedure (which means that the Court is not obliged to ask for the observations of the parties or to organise a hearing).

4.481

Where the reply is clear. Under Article 99 of the CJ RoP, the Court of Justice may reply by reasoned order (i) where the question referred is identical to a question on which the Court has already ruled, (ii) where the reply to such a question may be clearly deduced from existing case law or (iii) where the answer to the question referred for a preliminary ruling admits of no reasonable doubt. In 2018, the Court of Justice issued 21 orders under this provision.57 In this scenario, the decision to rule by reasoned order may be taken by the Court at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General. Such a reasoned order has the same scope and the same binding force as a judgment.58

4.5.8. Expedited Procedure, Urgent Procedure, Priority Treatment 4.482

Overview. There are various mechanisms at the disposal of the Court of Justice to allow it to provide a preliminary ruling to the referring court or tribunal in a timelier fashion than the normal preliminary procedure. These are (apart from the simplified procedure discussed above in paras 4.479–4.481) the expedited procedure (introduced into the CJ RoP on 16 May 2000)59 (cf Subsection 4.5.8.1) and the urgent preliminary ruling procedure (in force since 1 March 2008)60 (cf Subsection 4.5.8.2). Furthermore, the Court of Justice may, if it is warranted, grant priority treatment to a case (cf Subsection 4.5.8.3).

4.5.8.1. Expedited Preliminary Ruling Procedure 4.483

Applicable provisions. The provisions on the expedited procedure are contained in Article 23bis of the Statute and in Articles 105–106 of the CJ RoP.

4.484

Request. The request to have a case dealt with under the expedited procedure can be made by the referring court or tribunal or, exceptionally, by the President of the Court of Justice of his own motion. To enable the Court to decide quickly whether the expedited procedure should be applied, the request must set out precisely the matters of fact and law which establish the

56 See, eg Order of 25 April 2018 in Case C-102/17 Secretaria Regional de Saúde dos Açores [EU:C:2018:294] (referring body was no court or tribunal within the meaning of Art 267 TFEU). 57 See, eg Order of 6 December 2018 in Case C-292/18 Breyer [EU:C:2018:997] (question admitting of no reasonable doubt). 58 Recommendations, para 31. 59 Amendments to the Rules of Procedure of the Court of Justice of 16 May 2000 (OJ 2000 L 122, p. 43). 60 Council Decision 2008/79/EC, Euratom of 20 December 2007 amending the Statute (OJ 2008 L 24, p. 42).

Expedited Procedure and Urgent Procedure 533 urgency61 and, in particular, the risks involved in following the ordinary procedure. Insofar as it is possible to do so, the referring court or tribunal must also briefly state its view on the answer to be given to the questions referred. The request must in any event be submitted in an unambiguous form that enables the Registry to establish immediately that the file has to be dealt with under Article 105 of the CJ RoP (the relevant mention should therefore be included in a clearly identifiable place in the order for reference, for example, at the head of the page or in a separate judicial document).62 Conditions. Because the expedited procedure imposes significant constraints on all those involved in it, and, in particular, on all the Member States called upon to lodge observations, whether written or oral, within much shorter time limits than would ordinarily apply, its application must be sought only in particular circumstances that warrant the Court of Justice giving its ruling quickly on the questions referred.63 Indeed, this procedural instrument is intended to address matters of exceptional urgency, and the nature of the specific case at hand must therefore require that it be dealt with within a short time.64 The following circumstances have, for instance, triggered the application of the expedited preliminary ruling procedure: the nature and the sensitivity of the EU legal framework at hand that has not yet been interpreted by the Court;65 the number of outbreaks and rapidity of the spread of foot and mouth disease;66 the grave uncertainty surrounding the interpretation of EU law in a large number of criminal law cases;67 the particular gravity of the legal uncertainty surrounding the reference for preliminary ruling;68 diverging case law at the national level and the incidence of the preliminary ruling sought on the detention of individuals;69 the fact that the number of persons and legal situations potentially concerned by the decision to be taken by the referring court or tribunal is so great that there is a risk of impediment of the EU asylum system, as well as problems of interpretation of essential aspects of such a system;70 the risk of serious environmental damage;71 or the potential serious interference of a national law with fundamental rights laid down in the Charter of Fundamental Rights.72 On the other hand, the following circumstances have not been deemed sufficient for the expedited procedure to be granted: the mere circumstance that the preliminary ruling is sought within the framework of summary proceedings;73 the large number of persons or legal situations potentially

61 Order of 18 July 2013 in Case C-42/13 Cartiera dell’Adda and Cartiera di Cologno [EU:C:2013:508] paras 10–11; Order of 18 November 2013 in Case C-396/13 Sähköalojen ammattiliitto [EU:C:2013:811] para 15. 62 Recommendations, para 38. 63 Recommendations, para 34. In 2018, the expedited procedure was granted in 9 instances and rejected in 17 instances. 64 CJ RoP, Art 105(1). 65 Order of 22 February 2008 in Case C-66/08 Kozlowski [EU:C:2008:116] paras 11–12. 66 Case C-189/01 Jippes and Others [EU:C:2001:420] paras 44–45. 67 Order of 28 February 2017 in Case C-42/17 M.A.S. and M.B. [EU:C:2017:168] para 8. 68 Order of 4 October 2012 in Case C-370/12 Pringle [EU:C:2012:620] paras 7–8; Order of 19 October 2018 in Case C-621/18 Wightman and Others [EU:C:2018:851] paras 10–11. 69 Order of 30 September 2011 in Case C-329/11 Achughbabian [EU:C:2011:630] paras 10–12. 70 Order of 15 February 2017 in Case C-646/16 Jafari [EU:C:2017:138]; Order of 15 February 2017 in Case C-670/16 Mengesteab [EU:C:2017:120] paras 11–13. 71 Order of 13 April 2016 in Joined Cases C-78/16 and C-79/16 Pesce and Others [EU:C:2016:251] paras 9–10. 72 Order of 15 July 2010 in Case C-296/10 Purrucker [EU:C:2010:446] paras 7–9; Order of 9 September 2011 in Case C-256/11 Dereci and Others [EU:C:2011:571] paras 16–17; Order of 1 February 2016 in Case C-698/15 Davis and Others [EU:C:2016:70] paras 9–10. 73 Order of 23 March 2007 in Case C-12/07 Autostrada dei Fiori and AISCAT [EU:C:2007:187] para 7; Order of 23 March 2007 in Case C-493/17 Weiss and Others [EU:C:2017:187] para 12.

4.485

534 Procedure in Preliminary Rulings concerned by the decision to be taken by the referring court or tribunal;74 mere economic interests;75 the circumstance that a Member State may in the future no longer be part of the EU;76 the risk of an infringement of EU law;77 the fact that the case should be dealt with at the same time as cases already pending before the Court of Justice;78 the mere interest of the parties to the main proceedings;79 or the necessity of a speedy resolution of the case before the national court.80 4.486

Procedure. The decision to grant an expedited treatment to a particular case is taken by the President of the Court of Justice after hearing the Judge-Rapporteur and the Advocate General.81 If the President grants the request, he immediately fixes the date for the hearing.82 The interested persons referred to in Article 23 of the Statute may lodge written observations within the time limit set by the President, which must be a minimum of 15 days. The President may request those persons to restrict the matters addressed in writing to the essential points of law raised by the request for a preliminary ruling.83 All written observations are communicated to the interested persons prior to the hearing.84 The Court issues a ruling after hearing the Advocate General.85

4.487

Transmission of procedural documents. The CJ RoP regulates the lodging and the service of procedural documents separately from the common rules.86 Under the specific provisions of Article 106 of the CJ RoP applicable to the expedited preliminary ruling procedure, the procedural documents are deemed to have been lodged on the transmission to the Registry, by telefax or any other technical means of communication available to the Court of Justice, of a copy of the signed original and the items and documents relied on in support of it, together with the schedule of annexes. The original of the document and the annexes must be sent to the Registry immediately. The service and communication of a document to a person may be done by transmission of a copy of the document by telefax or any other technical means of communication available to the Court and the addressee.87 A court or tribunal submitting a request for the expedited procedure is requested to send that request and the order for reference, together with the text of the latter in an editable format (word processing software such as Word, Open Office or LibreOffice), by email.88 In order to expedite and facilitate subsequent communication with the referring court or tribunal and the parties to the main proceedings, the referring court or tribunal is also requested to state its email address and fax number, if any, which may be used by the Court, together with the email addresses and any fax numbers of the representatives of the parties to the proceedings.89 74 Order of 21 November 2005 in Case C-385/05 Confédération générale du travail and Others [EU:C:2005:707] para 13; Order of 13 July 2017 in Case C-260/17 Anodiki Services EPE [EU:C:2017:560] para 14; Order of 10 April 2018 in Case C-125/18 Gómez del Moral Guasch [EU:C:2018:253] para 10. 75 Order of 4 April 2017 in Case C-121/17 Teva UK and Others [EU:C:2017:326] para 8; Order of 29 June 2017 in Case C-256/17 Sandd [EU:C:2018:517] para 6; Order of 10 April 2018 in Case C-125/18 Gómez del Moral Guasch [EU:C:2018:253] para 11. 76 Order of 30 May 2018 in Case C-191/18 KN [EU:C:2018:383] para 21. 77 Order of 13 July 2017 in Case C-260/17 Anodiki Services EPE [EU:C:2017:560] para 11. 78 Order of 25 November 2011 in Case C-528/11 Halaf [EU:C:2011:783] para 9. 79 Order of 3 April 2007 in Case C-33/07 Jipa [EU:C:2007:210] para 6; Order of 19 September 2017 in Case C-438/17 Magamadov [EU:C:2017:723] para 15. 80 Order of 15 March 2017 in Joined Cases C-47/17 and C-48/17 X [EU:C:2017:224] para 18; Order of 13 July 2017 in Case C-260/17 Anodiki Services EPE [EU:C:2017:560] para 13. 81 Whereas until January 2019 the President of the Court issued a specific order in this regard, the reasons for granting or rejecting a request for expedited treatment are now briefly mentioned in the ruling of the Court closing the case. 82 CJ RoP, Art 105(2). 83 CJ RoP, Art 105(3). 84 CJ RoP, Art 105(4). 85 CJ RoP, Art 105(5). 86 The common rules are set out in CJ RoP, Arts 48 and 57. 87 CJ RoP, Art 106. 88 To [email protected]. 89 Recommendations, paras 40–41.

Expedited Procedure and Urgent Procedure 535

4.5.8.2. Urgent Preliminary Ruling Procedure Applicable provisions. The provisions on the urgent preliminary ruling procedure are contained in Article 23bis of the Statute and in Articles 107–114 of the CJ RoP.

4.488

Request. The request to have a case dealt with under the urgent preliminary procedure can be made by the referring court or tribunal. Exceptionally, the Court of Justice, or, more specifically, the designated Chamber of the Court (which may be requested by the President of the Court to consider the application of the urgent procedure), may also decide to resort to that procedure of its own motion.90 A request made by the referring court must set out the matters of fact and law which establish the urgency and justify the application of that exceptional procedure and, insofar as is possible, must indicate the answer that it proposes to the questions referred.91 As is the case for the expedited procedure, the request must be submitted in an unambiguous form (for instance, at the head of the page or in a separate judicial document).92 The application of the urgent preliminary procedure may also be made after the request for preliminary ruling has been lodged, if the circumstances so require.

4.489

Conditions. The urgent preliminary ruling procedure only applies in the areas covered by Title V of Part Three of the TFEU, relating to the area of freedom, security and justice. This procedure imposes even greater constraints on those concerned than the expedited procedure, since it limits the number of parties authorised to lodge written observations and, in cases of extreme urgency, allows the written part of the procedure before the Court of Justice to be omitted altogether. The application of the urgent procedure must therefore be requested only where it is absolutely necessary for the Court to give its ruling very quickly on the questions submitted by the referring court or tribunal.93 Circumstances warranting the application of the urgent preliminary ruling procedure include where a person is being detained and further detention depends on the answer to be given by the Court;94 the decisiveness of the answer to the question raised as to the assessment of a person’s legal situation;95 the real risk that the applicants in the main proceedings were facing of being subjected to inhuman and degrading treatment;96 or the fact that the proceedings concern parental authority or the custody of young children.97

4.490

Procedure. The procedure comprises both a written phase and an oral phase. The written phase, which can be omitted in case of extreme urgency,98 is only open to the parties to the main proceedings, the Member State from which the reference is made, the Commission and the institution or body which adopted the act the validity or interpretation of which is in dispute.99 The oral phase is the only phase during which Member States, other than those from which the reference originates, can make their submissions. If granted, the decision to deal with a case under the urgent

4.491

90 CJ RoP, Art 107(1). See, eg Order of 10 April 2018 in Case C-85/18 PPU CV [EU:C:2018:220] para 29. 91 CJ RoP, Art 107(2). 92 Recommendations, para 38. 93 Recommendations, para 35. 94 Case C-296/08 PPU Santesteban Goicoechea [EU:C:2008:457] paras 35–42; Case C-61/11 PPU El Dridi [EU:C:2011:268] paras 26–28; Case C-601/15 PPU N. [EU:C:2016:84] paras 37–42; Case C-695/15 PPU Mirza [EU:C:2016:188] paras 30–36; Case C-270/17 PPU Tupikas [EU:C:2017:628] paras 41–47; Case C-271/17 PPU Zdziaszek [EU:C:2017:629] paras 68–74. 95 Case C-578/16 PPU C. K. and Others [EU:C:2017:127] paras 47–51. 96 Case C-638/16 PPU X and X [EU:C:2017:173] paras 29–34. 97 Case C-195/08 PPU Rinau [EU:C:2008:406] paras 43–46; Order of 10 June 2011 in Case C-155/11 PPU Mohammad Imran [EU:C:2011:387] paras 11–12; Case C-111/17 PPU OL [EU:C:2017:436] paras 26–30; Order of 10 April 2018 in Case C-85/18 PPU CV [EU:C:2018:220] para 30. 98 CJ RoP, Art 111. 99 CJ RoP, Art 109(1).

536 Procedure in Preliminary Rulings procedure is served immediately on the Member State from which the reference is made, on the Commission and on the institution or body which adopted the act the validity or interpretation of which is in dispute. This decision sets the time limit within which the latter may lodge written submissions, and may specify the matters of law to which such submissions must relate, as well as the maximum length of those documents.100 Where a request for a preliminary ruling refers to an administrative procedure or judicial proceedings conducted in a Member State other than that from which the reference is made, the Court may invite that first Member State to provide all relevant information in writing or at the hearing.101 The request for a preliminary ruling is also communicated to the interested persons referred to in Article 23 of the Statute, other than the persons served.102 All interested persons are informed as soon as possible of the likely date of the hearing.103 The designated Chamber may sit in a formation of three Judges, or request the Court to assign the case to a formation composed of a greater number of Judges, in which case the procedure continues before the new formation of the Court, where necessary after the reopening of the oral part of the procedure.104 The designated Chamber issues its ruling on the substance after hearing the Advocate General.105 4.492

Transmission of procedural documents. The rules for the transmission of procedural documents in the expedited procedure (cf para 4.487) apply mutatis mutandis to the urgent procedure.106

4.493

Duration. The average duration of urgent preliminary ruling proceedings was 3.1 months in 2018.107

4.5.8.3. Priority Treatment 4.494

General. The provisions on the granting of a priority treatment to a particular case are contained in Article 53(3) of the CJ RoP. The request can be made by the referring court or tribunal, as well as by any party to the main proceedings. Priority will be given to a case over others only ‘in special circumstances’, which gives a large margin of discretion to the President of the Court in this regard.108 If it is granted, the priority given to a case merely concerns the steps of the procedure which are internal to the Court of Justice (cf Section 5.3.3. Priority Treatment).

100 CJ RoP, Art 109(2). 101 CJ RoP, Art 109(3). 102 CJ RoP, Art 109(4). 103 CJ RoP, Art 109(5). 104 CJ RoP, Art 113. 105 CJ RoP, Art 112. 106 CJ RoP, Art 114. 107 2018 Annual Report of the Court of Justice of the European Union, p. 134. 108 See, eg Case C-240/17 E [EU:C:2018:8]. See also Case C-268/17 AY [EU:C:2018:602] concerning a European arrest warrant.

4.6. Procedure in Opinions on International Agreements to be Concluded by the EU [written by Viktor Bottka1]

4.6.1. Overview General. The present chapter complements Chapter 3.9. Opinions on International Agreements to be Concluded by the EU by describing the procedural aspects and the course of the opinion procedure. Opinions on draft international agreements may be requested by a Member State, the Parliament, the Council and the Commission. This is a consultative procedure whose sole aim is to obtain the position of the Court of Justice as to whether an envisaged international agreement to be concluded by the EU is compatible with the Treaties or not. The procedure in opinions is non-contentious, and the adversarial principle does not apply. It involves no private parties and there is no main case, in contrast to preliminary rulings. Articles 196–200 of the Rules of Procedure of the Court of Justice (CJ RoP) define the opinion procedure, which consists of a written part and possibly an oral part. The written part starts with the submitting of a request for an opinion by a party entitled to do so. Member States and the European Parliament, the Council and the Commission are allowed to submit written observations and express their views at the hearing. Only these entities can take part in the opinion procedure, and no interventions are possible. The main specificities of the opinion procedure as compared to other forms of procedure are explained in Section 4.1.3. Types of Proceedings (cf para 4.20).

4.495

4.6.2. General Rules Languages. All the languages listed in Article 36 of the CJ RoP are languages of the case and there is no rule determining a single one applicable to the case. This means that if the request for an opinion is lodged by a Member State, the Court of Justice’s translation service will produce versions in all other languages. If the request is lodged by the Parliament, the Council or the Commission, the requesting party must submit all language versions of its request simultaneously. If the draft agreement is attached to the request, there is no need to translate it to all languages. At the hearing, the requesting party may choose any of the languages set out in Article 36 of the CJ RoP, but the other parties may use different languages than in the original request and the interpretation service enables communication. The opinion is delivered in open court and is subsequently published in all languages.

4.496

Absence of an order on costs. The institutional nature of the procedure also means that the Court of Justice does not rule on costs; rather, each party bears its own costs.

4.497

1 Member of the Legal Service, European Commission. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the European Commission.

538 Procedure in Opinions on International Agreements 4.498

No possibility to appeal. There is no possibility to contest or appeal an opinion that has been delivered. In any event, the initiating party may withdraw its pending request and thereby prevent the delivery of the opinion. It is possible to request a rectification2 and, in theory, also an interpretation3 or revision.4

4.499

No expedited procedure. Unlike in direct actions and in preliminary rulings, the CJ RoP do not foresee any special procedure for urgent cases. The Court of Justice can nonetheless take into account urgency and the President of the Court may give priority to one case over others5 if the parties bring such a need to its attention.

4.6.3. Written Part of the Procedure 4.500

Content of the request for opinion. Article 21 of the Statute requires, in respect of all cases brought before the Court of Justice, the minimum description of ‘the subject-matter of the dispute, the form of order sought and a brief statement of the pleas in law on which the application is based’. Unlike in the case of direct actions and preliminary references, the CJ RoP do not lay down any specific formal or content requirements as regards requests for opinions. If a request is unclear, the Court may ask the requesting party to explain it better. It is customary that, in its request, the party describes the envisaged agreement, annexes the draft international agreement if such a draft has already been prepared, presents the documents related to the result of the negotiations achieved before the lodging of the request and puts forward its views on the issue of the envisaged agreement’s compatibility with the Treaties. Although the CJ RoP and the Practice Directions of the Court of Justice (CJ PD) do not foresee a page limit for requests for opinions, the 30-page size limit applicable to direct actions6 might provide a guideline as to the volume for such requests.

4.501

Service of the request. The request for an opinion is served on the Member States and on the Parliament, the Council and the Commission, except for the requesting party. The President of the Court prescribes the time limit within which these parties may submit written observations.7

4.502

Designation of the Judge-Rapporteur and the Advocate General. As soon as the request for an opinion has been submitted, the President of the Court designates a Judge-Rapporteur and the First Advocate General assigns the case to an Advocate General.8

4.503

Written observations. Only the Member States, the Parliament, the Council and the Commission (the parties to the opinion proceedings) are entitled to submit written observations.9 Except in urgent cases, the deadline set by the President10 is normally two months and 10 days counted from the notification of the request for opinion to the party. The opinion procedure is not adversarial. As in preliminary ruling proceedings, there is no second written round, but the Court of

2 CJ RoP, Art 154. See Order of 27 November 2017 in Opinion procedure 2/15 REC Free Trade Agreement between the EU and Singapore [EU:C:2017:934]. 3 CJ RoP, Art 158. 4 CJ RoP, Art 159. 5 CJ RoP, Art 53(3). 6 CJ PD, para 13. 7 CJ RoP, Art 196(3). 8 CJ RoP, Art 197. 9 CJ RoP, Art 196(3). 10 cf para 1.36.

The Opinion Delivered 539 Justice may address questions to the parties in writing.11 It is a particular feature of the opinion procedure that the Court transmits a copy of all observations to all parties, even to those ones that did not submit written observations. This enables the parties to participate in a possible oral hearing more efficiently. No interventions. Only the Member States, the Parliament, the Council and the Commission are allowed to take part in the opinion procedure. These entities join the proceedings automatically and all the documents are served on them. Interventions are not possible in this type of procedure.

4.504

4.6.4. Oral Part of the Procedure Oral hearing. The Court of Justice decides on the necessity of a hearing.12 The parties may request a hearing but have no right to obtain it automatically. All parties entitled to request an opinion are invited to the hearing, if one is organised. It is not a condition to have submitted a request for opinion or written observations previously. Hearings have been organised in more than half of the opinion proceedings so far. Normally the hearings are public, but exceptionally they may be held in closed circle, if diplomatic or other confidentiality reasons justify it. Opinion cases may be joined for the purposes of the hearing, if their subject matter is similar.13

4.505

AG Opinion. The delivery of the opinion of the Court of Justice on the compatibility of the draft agreement with the Treaties is always preceded by the Opinion of the Advocate General.14

4.506

4.6.5. The Opinion Delivered General. As judgments and orders in other procedures, the opinions are first delivered in open court. This means, in practice, that a Judge (the President of the Chamber) reads the operative part of the opinion just before starting an oral hearing held in another case. The full text of the opinion (without any confidential parts) is published usually on the same day on the website of the Court of Justice, while the Court also notifies the opinion to all parties entitled to request one (cf para 4.495). The structure of recent opinions is as follows: I. The request for an opinion, II. Description of the envisaged agreement, III. Summary of the arguments and possible doubts expressed by the requesting party, IV. Summary of the other observations submitted to the Court, V. Position of the Court, VI. Operative part: answer to the request for an opinion.

11 A peculiarity of the procedure is that the same questions are normally notified to all parties, even if they had not submitted written observations before. 12 CJ RoP, Art 198. 13 A common hearing was held for the proceedings that resulted in Opinion 2/92 Third Revised Decision of the OECD on national treatment [EU:C:1995:83] and in Opinion 1/94 International agreements concerning services and the protection of intellectual property annexed to the WTO agreement [EU:C:1994:384]. 14 CJ RoP, Art 197. Under Art 108(2) of the old CJ RoP of 1991, all Advocates General were heard before issuing the Opinion of the Court of Justice.

4.507

540

part 5 Incidental and Ancillary Procedural Issues

542

5.1. Evidence and Confidential Information [written by Viktor Luszcz1]

5.1.1. Overview Structure. The present chapter focuses on the possibilities of parties to obtain documentary evidence for the purposes of proceedings before the EU Courts or before national courts, as well as on the treatment of confidential and sensitive evidence by the General Court. First, it describes the four avenues that allow litigants to gain access to documents or information held by the EU institutions or bodies2 in order to rely on them in litigation before the EU Courts or national courts (cf Section 5.1.2. Access to Documents Held by EU Institutions or Bodies). Secondly, it presents the provisions in the GC RoP on the treatment of confidential and sensitive evidence, submitted by a party to the General Court, in respect of the other party to the case (cf Section 5.1.3. Treatment of Confidential and Sensitive Evidence by the General Court). Thirdly, the present chapter also explains the provisions on anonymity and on the treatment of confidential information, submitted by the parties to the EU Courts, vis-à-vis the public (cf Section 5.1.4. Anonymity and Confidential Treatment of Information vis-à-vis the Public).

5.01

5.1.2. Access to Documents Held by EU Institutions or Bodies General. Gaining access to documents held by the EU institutions or bodies is essential for successful litigation in a variety of situations. It is clearly indispensable to obtain at least some of the documents on the basis of which the EU institution or body adopted a decision adverse to a natural or legal person when the latter challenges that decision before the General Court. There are other instances where documents held by institutions or bodies constitute important material used in the context of civil or criminal proceedings before national courts, which may give rise to preliminary references to the Court of Justice, possibly on the validity of EU measures.

5.02

Access to institution documents may be obtained under various regimes. First, certain institutions and bodies are required to grant access to relevant documents already in the course of the administrative procedure. This is done either under specific rules governing the relevant procedure3 or by virtue of the general principle of respect for the rights of the defence.

5.03

1 Partner, Danubia Legal – Luszcz Law Firm. Attorney at law specialising in European and Hungarian competition and intellectual property law, member of the Budapest Bar. Previously worked 11 years as a référendaire at the General Court of the EU. 2 Throughout this book, the term ‘institution or body’ denotes EU institutions, bodies, offices and agencies within the meaning of Article 263 and 265 TFEU, while the term ‘EU institution’ is used to refer to EU institutions listed in Article 13(1) TEU. 3 See, eg the provisions governing access to file in competition cases.

544 Evidence and Confidential Information However, as a rule, only the main party to the administrative procedure is entitled to gain access to documents under this regime, that is, the party whose legal position is directly affected by the act adopted at the end of the procedure (cf Subsection 5.1.2.1. Access to Documents in the Administrative Procedure). It follows that parties not participating in the administrative procedure or not being its main subject often need to resort to other avenues. Therefore, the second possibility is to seek public access to documents held by the European Parliament, the Council and the Commission under Regulation 1049/2001,4 or under the specific rules on such public access to documents held by other EU institutions or bodies, either for the purposes of a case brought before the EU Courts or for the purposes of proceedings before national courts (cf Subsection 5.1.2.2. Public Access to Documents under Regulation 1049/2001 or its Equivalents). Thirdly, litigants in cases before national courts may obtain access to documents held by institutions or bodies through those courts. The latter may request institutions or bodies to produce information or materials by virtue of the principle of sincere cooperation. Access to these documents by the litigants is governed by national procedural rules (cf Subsection 5.1.2.3. National Courts Requesting EU Documents). Fourthly, it is also possible to obtain certain documents in the proceedings before the EU Courts, that is, by way of proposing that the latter invite (measures of organisation of procedure) or order (measures of inquiry) an institution or body to submit copies of documents relating to the case.5 The main rules on the adoption of such measures are described in Section 4.2.7. Measures of Organisation of Procedure and of Inquiry. This chapter complements that section by explaining the detailed procedural provisions in the Rules of Procedure of the General Court (GC RoP) related to the application by a party for access to evidence held by the other party (cf Subsection 5.1.2.4. Obtaining Documents in the Procedure before the General Court).

5.1.2.1. Access to Documents in the Administrative Procedure 5.04

General. In most procedures, EU institutions or bodies have an obligation to disclose some or all of the documents in the administrative file, or at least provide the information contained therein prior to the adoption of the final act closing the procedure. Such access is normally granted to the party who is the main subject of the administrative procedure. This is especially true in proceedings that may result in sanctions or pecuniary measures adversely affecting that party. Although the initial purpose of making information available to the party in the administrative procedure is to enable it to defend itself in that procedure, such information is obviously widely relied on before the EU Courts, should the party decide to challenge the act in question. (i) Rules Governing Particular Procedures

5.05

Field-specific rules differ and case law may not apply to another field. The extent of the access that may be obtained and the applicable rules vary depending on the administrative procedure concerned. For instance, the broadest access is arguably granted in antitrust proceedings, where access to all the documents in the case file (except for the business secrets of other

4 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). 5 CJ RoP, Arts 61–75; GC RoP, Arts 88–104.

Access to Documents 545 undertakings) is automatically granted to the undertakings investigated, that is, without any request being necessary (access to the file).6 More limited access is given in the context of antidumping proceedings. There is no automatic access to the file, although the parties concerned may request disclosure of the details underlying the essential facts and considerations on the basis of which the Commission intends to impose anti-dumping duties (disclosure).7 Applicants often argue that the principles governing access to documents developed in a given field should be generally applicable. The Court of Justice and the General Court do sometimes consider that field-specific case law can be transposed to another type of procedure (see, eg Eyckeler and Malt v Commission,8 where case law relating to antitrust proceedings was applied to customs proceedings). Nonetheless, the General Court refused to consider that rules on access to the file in antitrust proceedings may be applied, by analogy, to European Anti-Fraud Office (OLAF) investigations9 or to the procedure for reviewing State aid.10 (ii) General Principles – THe Rights of the Defence and the Right to be Heard Rationale. Despite the divergence in rules governing access to documents in particular administrative procedures, the underlying rationale is the same in all fields: namely, the lack of information concerning the documents which serve as a basis for the intended act would clearly impair the party’s ability to defend itself effectively in the procedure conducted by the institution or body that has the power to adopt the act. Therefore, the right to have access to documents in the administrative procedure has been construed by the Courts as part of the rights of the defence (cf paras 3.266–3.267), as a right necessary for the proper exercise of the right to be heard.11 Furthermore, insofar as respect for the rights of the defence is a general principle of EU law, the subjects of an administrative procedure are entitled to obtain access to documents on which the act adversely affecting their legal position is based. Thus, such a right also exists where there are no particular provisions governing the procedure in question or where there are no particular provisions foreseeing access to documents in the relevant field.12 However, the general principle of the protection of the rights of the defence does not imply that the institution or body conducting the administrative procedure is required to grant access to the documents in its file of its own motion. It is only upon the request of the party concerned that the institution or body is required to provide access to all non-confidential official documents concerning the measure at issue13 (unless exceptions apply to the right of access). 6 Art 27(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). See also N Coutrelis and V Giacobbo, ‘La pratique de l’accès au dossier en droit communautaire de la concurrence: Entre droit de la défense et confidentialité’ Concurrences 2/2006 66–78. 7 Art 20 of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21). 8 Case T-42/96 Eyckeler & Malt v Commission [EU:T:1998:40]. 9 Case T-259/03 Nikolaou v Commission [EU:T:2007:254] paras 122 and 252. For a detailed comparison of legislation and the case law relating to antitrust and OLAF proceedings, see S White, ‘Rights of the defence in administrative investigations: access to the file in EC investigations’ Review of European Administrative Law 2/2009 No 1, 57–69. 10 Case T-198/01 Technische Glaswerke Ilmenau v Commission [EU:T:2004:222] paras 193–194, not set aside on these points on appeal. 11 See, in the field of cartels, Joined Cases T-10/92, T-11/92, T-12/92 and T-15/92 Cimenteries CBR and Others v Commission (cement cartel) [EU:T:1992:123] para 38; Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission (cement cartel) [EU:C:2004:6] para 68 and the case law cited. 12 See, in the field of customs, Case T-42/96 Eyckeler & Malt v Commission [EU:T:1998:40] paras 78–80; in the context of fund freezing measures, see Case T-390/08 Bank Melli Iran v Council [EU:T:2009:401] para 91. 13 Case T-205/99 Hyper v Commission [EU:T:2002:189] paras 63–65; Case T-390/08 Bank Melli Iran v Council [EU:T:2009:401] para 97.

5.06

546 Evidence and Confidential Information 5.07

Only the main subject of the proceedings enjoys the rights of the defence. The identity of the party considered to be the main subject of the proceedings (in other words, the person against whom the procedure is conducted) is of crucial importance, insofar as it is only that person who is entitled to obtain documents during the administrative procedure on the basis of the protection of the rights of the defence. The parties benefiting from such rights are defined by EU legislation or case law in all relevant fields (cf para 3.267). It is also worth mentioning that in certain fields, such as antitrust, limited rights of access to certain documents in the file are granted to complainants or other interested parties, albeit not on the basis of the rights of the defence.

5.08

When is access to documents granted? The general rule is that access to documents must be granted before the adoption of the act adversely affecting the position of the main subject of the proceedings. The latter is thus able to express his views on the documents taken into account by the institution or body. Failure to observe that requirement on the part of the institution or body may lead to the annulment of the act in question, for instance, on the ground that essential procedural requirements have been breached.14 However, there are certain administrative proceedings where the element of surprise is of great importance for the effectiveness of, inter alia, pecuniary measures. Such is the case in the procedure leading up to acts prescribing the freezing of funds of natural or legal persons with a view to combating terrorism or nuclear proliferation.15 The Courts have ruled in this context that the Council is not required to disclose the evidence adduced against the entity concerned before the adoption of the initial decision to freeze funds, because prior disclosure could jeopardise the effectiveness of the measure. The rights of the defence are respected if the evidence is notified to the entity concerned either concomitantly with or as soon as possible after the adoption of the initial decision to freeze funds,16 as such disclosure still allows that entity to rely on the documents when requesting the Council to reconsider its decision or when challenging the initial decision before the General Court. The consequence of non-disclosure is an interesting issue as, clearly, subsequent communication of the evidence does not form part of the adopted act. In Kadi and Al Barakaat v Council, the Court of Justice held in this regard that the lack of disclosure of the evidence after the adoption of the initial fund-freezing measure could still affect the latter’s validity. Based on this finding, the Court annulled that measure in respect of the applicants. However, it allowed three months for the Council to remedy the breach of the rights of the defence, by maintaining the effect of the act during that period.17 After the initial fund-freezing measure, the Council may adopt further measures that maintain the effect of the initial act. In such a case, where urgency is not established, observance of the right to a fair hearing requires that new evidence justifying the prolongation of the effect be communicated to the person concerned and a hearing be held prior to the adoption of that act.18

14 See, eg Case T-42/96 Eyckeler & Malt v Commission [EU:T:1998:40] paras 80–88. 15 See, eg Council Common Position 2001/930/CFSP on combating terrorism (OJ 2001 L 344, p. 90); Council Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93); Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70). 16 Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council [EU:T:2006:384] para 129; Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat v Council [EU:C:2008:461] paras 336–339. 17 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat v Council [EU:C:2008:461] para 375. 18 Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council [EU:T:2006:384] para 137.

Access to Documents 547

5.1.2.2. Public Access to Documents under Regulation 1049/2001 or its Equivalents (i) General Concept. Unlike rules governing access to documents in the administrative procedure (cf paras 5.04–5.08), which usually benefit only the main subject of that procedure, provisions relating to public access to documents of EU institutions or bodies apply equally to all natural or legal persons. Access to documents can be obtained under these provisions irrespective of the actual participation or role in the administrative procedure before the institution or body and, importantly, of the intended use of the documents. Rules on public access are not specifically designed to allow parties concerned to obtain documents in order to rely on them in court cases (although they are often used to this end), but rather reflect the more general ambition of rendering EU legislation and decision-making more transparent.19 Accordingly, when deciding on whether to give access, the institutions or bodies weigh the interest in preserving the confidentiality of the documents against the general interest related to transparency, and not against the respect of the procedural rights of the party, such as the right to a fair trial. The rules on public access to documents held by institutions or bodies consist of both primary and secondary Union law provisions.

5.09

Primary EU law. Article 15(3) TFEU and Articles 42 and 52 of the Charter of the Fundamental Rights provide in essence that any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies (‘institutions or bodies’), whatever their medium, subject to certain limitations in order to protect other freedoms. Article 15(3) TFEU only applies to the Court of Justice of the European Union, the European Central Bank (ECB) and the European Investment Bank when these entities exercise their administrative tasks.

5.10

Secondary EU law – Regulation 1049/2001 and similar rules. Regulation 1049/2001 on public access to Parliament, Council and Commission documents20 was adopted in order to flesh out the general rule contained in what is now Article 15(3) TFEU in respect of these three EU institutions.21 Specific provisions of secondary EU law also make Regulation 1049/2001 applicable to a number of other EU bodies.22 These specific provisions may be contained in acts adopted by the EU body concerned (eg decisions on public access to documents held by the Economic and Social Committee23 and by the Committee of the Regions24) or may also be placed in the piece of secondary EU legislation that establishes the relevant body, office or agency. For instance,

5.11

19 Recitals 2–3 of Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). See also Case C-64/05 Sweden v Commission [EU:C:2007:802] paras 54–55. 20 Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). 21 In April 2008, the Commission submitted a proposal for a recast of Regulation 1049/2001 with a view to enhancing transparency and accountability by promoting good administrative practice [COM(2008) 229 final]. This proposal still remains the basis for negotiations between the co-legislators. 22 See Joint declaration relating to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). See also Document No 16331/13 of the Council of 15 November 2013, which lists the relevant provisions applicable to various EU institutions and bodies in force on 15 November 2013. 23 Decision 2003/603/EC of the European Economic and Social Committee of 1 July 2003 on public access to European Economic and Social Committee documents (OJ 2003 L 205, p. 19). 24 Decision 64/2003 of the Committee of the Regions of 11 February 2003 on public access to Committee of the Regions documents (OJ 2003 L 160, p. 96).

548 Evidence and Confidential Information Article 118 of the REACH Regulation25 provides that Regulation 1049/2001 shall apply to documents held by the European Chemicals Agency (ECHA), and also lays down some field-specific rules on access to ECHA documents that differ from the general provisions contained in Regulation 1049/2001. A similar arrangement has been put in place for documents held by the European Aviation Safety Agency.26 Furthermore, the ECB27 and the Court of Auditors28 adopted sui generis rules on public access to their documents without referring to Regulation 1049/2001. Regulation 1049/2001 is nonetheless the most relevant piece of legislation from the point of view of gaining access to documents that might be used for litigation before the EU Courts. Indeed, the largest number of actions for annulment concerns acts adopted by the Commission or the Council, and this Regulation is also applicable to access to documents held by a multitude of other EU bodies, as presented above. A brief overview of the main features of Regulation 1049/2001 is thus provided below. 5.12

Terminology – ‘institution concerned’. In the present subsection (Subsection 5.1.2.2), the term ‘institution concerned’ denotes the Parliament, the Council and the Commission, whose documents fall within the scope of Regulation 1049/2001, as well as other EU institutions or bodies to which Regulation 1049/2001 is applicable by extension (cf para 5.11). (ii) Main Features of Regulation 1049/2001

5.13

Main rule. The Regulation provides that any document held by the institutions concerned, whether drawn up by the institution or received by and in its possession, is public, unless at least one of the exceptions set out in Article 4 of that Regulation applies.29 Exceptions are categorised as mandatory or discretional.

5.14

Mandatory exceptions – where access must be refused. Where mandatory exceptions are present, the institutions concerned are required to refuse access if disclosure would undermine the interests protected by that provision. The interest in keeping the documents confidential is not weighed against any overriding interest in making them public. These exceptions are foreseen in Article 4(1) of Regulation 1049/2001, which reads as follows: 1. The institutions shall refuse access to a document where disclosure would undermine the protection of (a) the public interest as regards: – – – –

public security, defence and military matters, international relations, the financial, monetary or economic policy of the [EU] or a Member State;

25 Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency (OJ 2006 L 396, p. 1), as amended. 26 See Art 119(1) of Regulation (EU) 2018/1139 of the European Parliament and the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency (OJ 2018 L 212, p. 1): ‘Regulation (EC) No 1049/2001 shall apply to documents held by the Agency. This shall be without prejudice to the rules on access to data and information set out in Regulation (EU) No 376/2014 and in the implementing acts adopted on the basis of Articles 72(5) and 74(8) of this Regulation.’ 27 Decision (EU) 2015/529 of the European Central Bank of 21 January 2015 amending Decision ECB/2004/3 on public access to European Central Bank documents (OJ 2015 L 84, p. 64). 28 Decision No 12/2005 (as amended by Decision 14/2009) of the Court of Auditors of the European Communities of 10 March 2005 regarding public access to Court documents (OJ 2009 C 67, p. 1). 29 For an overview of the system set up by Regulation 1049/2001, see B Driessen, ‘Public access to EU institution documents: an introduction’ (2008) Global Trade and Customs Journal 329–335.

Access to Documents 549 (b) privacy and the integrity of the individual, in particular in accordance with [EU] legislation regarding the protection of personal data.

Discretionary exceptions – where access may only be refused if there is no overriding public interest in disclosure. Regulation 1049/2001 also lays down a set of discretionary exceptions,30 that is to say, exceptions which prevent access to documents only where there is no overriding public interest justifying disclosure. In this regard, Article 4(2)–(3) of Regulation 1049/2001 provides as follows:

5.15

2. The institutions shall refuse access to a document where disclosure would undermine the protection of: – commercial interests of a natural or legal person, including intellectual property, – court proceedings and legal advice, – the purpose of inspections, investigations and audits,

unless there is an overriding public interest in disclosure.

3. Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

Applying for documents and assessment of the application. Under Article 6 of Regulation 1049/2001, applications for access to a document must be made in any written form, including electronic form, in a sufficiently precise manner to enable the institution concerned to identify the document. The applicant is not obliged to state reasons for the application. Articles 7 and 8 of Regulation 1049/2001 provide for a two-step procedure to assess the application. First, within a period of 15 working days from the registration of the initial application, the institution concerned shall either grant access or state the reasons for its total or partial refusal. In the event of refusal, the applicant may make a confirmatory application asking the institution to reconsider its position. Secondly, where such a confirmatory application is made, the institution concerned shall, within 15 working days (extendable to 30), either grant access to the documents requested or state the reasons for the refusal. At both stages, a lack of response on the part of the institution concerned is deemed to be an implicit refusal. Regulation 1049/2001 is widely used to obtain documents. For instance, in 2018, the number of initial applications for documents made to the Commission reached 6912. Full or partial access to documents was granted in more than 80.2 per cent of cases at the initial stage. The number of confirmatory applications requesting a review, by the Commission, of initial replies fully or partially refusing access amounted to 318.31

5.16

An action for annulment may be brought against the second refusal decision. The remedies open to the person requesting documents in the event of an implicit or explicit refusal are a complaint to the Ombudsman or an action for annulment before the General Court. Such a

5.17

30 See J Heliskoski and P Leino, ‘Darkness at the break of noon: the case law on regulation no. 1049/2001 on access to documents’ (2006) Common Market Law Review 765. 31 Report from the Commission on the application in 2018 of Regulation (EC) No 1049/2001 (COM(2019) 356 final).

550 Evidence and Confidential Information Court action may be submitted against the confirmatory decision laying down the definitive position of the institution concerned on the application for access to documents. Conversely, the explicit or implicit response of the institution concerned to the initial application is not actionable before the General Court, since it is a preparatory act paving the way for the final decision (cf para 3.38). Applications for the annulment of this initial statement of position are therefore rejected as inadmissible.32 (iii) Regulation 1049/2001 and Litigation before the EU Courts 5.18

General. In many cases, parties request documents under Regulation 1049/2001 in order to be better placed to represent their interests in an administrative procedure conducted by an institution or body, or in order to rely on those documents when challenging the final act adopted by the institution or body before the EU Courts. In any event, requesting access to documents under Regulation 1049/2001 is a procedure entirely dissociated from the main administrative procedure conducted by the institution or body, even if the party concerned may participate in it. Therefore, the decision refusing access on the basis of Regulation 1049/2001 is a separate reviewable act under Article 263 TFEU (cf para 5.17), and can be challenged irrespective of any action brought against the act adopted by the institution or body at the end of the main administrative procedure.

5.19

Intended use as evidence in court proceedings and the undertaking to preserve confidentiality are irrelevant. Article 6(1) of Regulation 1049/2001 provides that a person requesting access is not required to justify his request and therefore does not have to demonstrate any interest in disclosure. The consequence of this rule is that different kinds of justification which do not qualify as an ‘overriding public interest in disclosure’ (cf para 5.15) may not be taken into account when deciding on the extent of the access granted. This implies that a request of documents for journalistic purposes33 is, in principle, treated in the same way as a request with a view to obtaining documents necessary for litigation, accompanied by the applicant’s undertaking to handle the documents confidentially. For instance, in Franchet and Byk, the General Court recognised that the applicants had an interest in obtaining a copy of the requested documents in order to use them in national court proceedings, but promptly pointed out that this qualified as a particular interest, whereas under Regulation 1049/2001 only a public interest could be relevant.34 Under Regulation 1049/2001, no consideration is given either to the party’s right to an effective judicial remedy and to a fair trial or to his undertaking to use the requested documents only in court proceedings. This is the main reason why access to documents under this Regulation is narrower than that under the GC RoP (cf paras 5.20 and 5.41).35 32 Joined Cases T-391/03 and T-70/04 Franchet and Byk v Commission [EU:T:2006:190] paras 46–49; Case T-111/07 Agrofert v Commission [EU:T:2010:285] para 35. 33 See, eg Case T-36/04 Association de la presse internationale (API) v Commission [EU:T:2007:258]. 34 Joined Cases T-391/03 and T-70/04 Franchet and Byk v Commission [EU:T:2006:190] paras 138–139; see also Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council [EU:T:2005:143] para 50; Case T-474/08 Umbach v Commission [EU:T:2010:443] paras 55–59. See, however, the references to the court proceedings in Case T-2/03 Verein für Konsumenteninformation v Commission [EU:T:2005:125] paras 114, 126 and 129 and in Case C-28/08 P Bavarian Lager v Commission [EU:C:2010:378]. 35 See also V Luszcz, ‘Gunpowder for court battles: litigants’ access to EU institution documents’ (2012) Europäische Zeitschrift für Wirtschaftsrecht 493–494. This article argues for an extension of the rights of access under Regulation 1049/2001 in cases where the party asks for institution documents in order to rely on them in court proceedings, by giving a pledge to handle them confidentially. Such an extension could ensure that the relevant documents be available to the party at the time of drafting of the court action; furthermore, the EU Courts or national courts would not need to prolong their proceedings by requesting such documents from the institution concerned.

Access to Documents 551 Parallel requests for documents under the GC RoP and Regulation 1049/2001. Parties often wish to obtain documents from institutions or bodies in order to rely on them in an action for annulment brought against an act of the institution or body which affects them adversely, for instance against a Commission decision in the field of State aid or mergers. Nothing prevents interested parties from requesting such documents, related, for example, to the administrative procedure leading up to the contested act, under Regulation 1049/2001. Such an application for documents may be made prior to bringing the action for annulment before the General Court36 or after the filing of the Court action.37 It must nonetheless be borne in mind that Regulation 1049/2001 is not the only, and certainly not the most effective, way to obtain documents from the institution or body against which the Court action is brought. An applicant before the General Court may also ask the latter to invite or order the defendant institution or body to produce the desired documents as a measure of organisation of procedure or of inquiry (cf Subsection 5.1.2.4. Obtaining Documents in the Procedure before the General Court). If the General Court issues such a measure, and the defendant complies with it, the applicant will also receive a copy of those documents on the basis of the adversarial principle (cf para 4.276, cf para 5.39).38 The applicant may therefore extract evidence from the defendant institution or body to which the latter refused to give access under Regulation 1049/2001.39 It is important to note that the applicant has a far greater chance of receiving evidence under the GC RoP than under Regulation 1049/2001. Indeed, access under the said Regulation amounts to publication (meaning that the party is free to disclose them to the public), which may lead the institution concerned to refuse access to documents which it would otherwise supply if it received assurances that those documents would only be used for the purposes of the Court procedure (cf para 5.21). Furthermore, in the case of access under Regulation 1049/2001, only the public interest in disclosure can be weighed against the public or private interest40 in preserving confidentiality, whereas documents received in response of a measure of organisation of procedure or of inquiry are intended to be used in the relevant Court proceedings only, and the General Court takes into account the procedural rights of the applicant (related to effective judicial protection) instead of the public interest in disclosure (cf para 5.49).

5.20

Example: the Éditions Odile Jacob cases. The Éditions Odile Jacob cases lend an illustration for parallel requests for documents made under the GC RoP and under Regulation 1049/2001. In Éditions Odile Jacob I the applicant sought the annulment of the Commission’s decision declaring the Lagardère/Natexis/VUP merger compatible with the common market,41 and in Éditions Odile Jacob II the same applicant challenged the Commission’s decision concerning the implementation of Lagardère’s commitments.42 In January 2005, the applicant requested public access under Regulation 1049/2001 to Commission documents which it considered important for its arguments in the merger cases pending before the General Court (the main cases). The Commission refused access in April 2005 inter alia on the basis of the exceptions protecting the purpose of inspections, investigations and audits. It also considered that the applicant could not rely on

5.21

36 Joined Cases T-391/03 and T-70/04 Franchet and Byk v Commission [EU:T:2006:190]. 37 Case T-237/05 Éditions Odile Jacob v Commission III [EU:T:2010:224]. 38 Under GC RoP, Art 65(1), ‘procedural documents and items included in the file in the case shall be served on the parties’. 39 This does not apply where the action for annulment was brought against a refusal decision taken under Regulation 1049/2001 (cf para 5.22). 40 See, eg the discretionary exception related to commercial interests of a natural or legal person, including intellectual property (cf para 5.15). 41 Case T-279/04 Éditions Odile Jacob v Commission I [EU:T:2010:384]. 42 Case T-452/04 Éditions Odile Jacob v Commission II [EU:T:2010:385].

552 Evidence and Confidential Information any overriding public interest, as its interest in obtaining documents needed for arguing its cases before the General Court was private in nature.43 This decision refusing access to documents was challenged in the Éditions Odile Jacob III case.44 It is important to note that several documents whose disclosure had been refused by the Commission under Regulation 1049/2001 were submitted by it in the main Court cases Éditions Odile Jacob I–II. The Commission produced some of these documents on its own initiative and others in reply to the measure of organisation of procedure (invitation to produce documents, cf para 4.281) that the General Court took upon the request of the applicant (cf para 5.32). By producing these documents under the GC RoP, the Commission considered that the applicant had to be granted broader access to documents in the Court proceedings than under Regulation 1049/2001, given that communication of a document under the Regulation is equivalent to publication, whereas the document submitted to the General Court and transmitted to the applicant under the GC RoP can only be used for the purposes of the Court proceedings.45 The broader scope of access to documents under the GC RoP than under Regulation 1049/2001 was also highlighted by the MyTravel cases.46 5.22

Refusal of access under Regulation 1049/2001 cannot be circumvented by asking for a measure of inquiry in annulment proceedings brought against the refusal decision. A party whose request for access to documents under Regulation 1049/2001 or its equivalents has been rejected is entitled to bring an action for annulment before the General Court against the final decision refusing access (cf para 5.17). While it is true that the applicant may propose to the General Court that it orders the production of a document (cf para 4.291, cf para 5.32) and that, under the general rule,47 a copy of the documents produced is served on all the parties, the GC RoP foresees an exception from that general rule in order to avoid that an applicant who is challenging the legality of the decision refusing access circumvents that decision by asking for a copy of the documents at issue in the proceedings before the General Court. Article 91(c) of the GC RoP thus lists the ‘request of documents to which access has been denied by an institution [or body] in proceedings relating to the legality of that denial’ as a measure of inquiry separate from the generally applicable request for information or materials foreseen in Article 91(b) (cf para 4.296). Furthermore, the GC RoP provides that where, ‘following a measure of inquiry referred to in Article 91(c), a document to which access has been denied by an institution [or body] has been produced before the General Court in proceedings relating to the legality of that denial, that document shall not be communicated to the other parties’.48

5.1.2.3. National Courts Requesting EU Documents 5.23

General. Documents held by EU institutions or bodies can also prove to be vital in proceedings before national courts, possibly giving rise to preliminary references made to the Court of Justice under Article 267 TFEU. Examples include actions for damages brought by consumers 43 Case T-237/05 Éditions Odile Jacob v Commission III [EU:T:2010:224] paras 8–14. 44 Case T-237/05 Éditions Odile Jacob v Commission III [EU:T:2010:224]. 45 Case T-237/05 Éditions Odile Jacob v Commission III [EU:T:2010:224] paras 16–17. 46 Access to documents (whose supply was refused by the Commission under Regulation 1049/2001) was granted to MyTravel under the GC RoP in the main action for damages case (Case T-212/03 MyTravel v Commission [EU:T:2008:315] para 129 et seq). After the judgment, the applicant dropped the ancillary case challenging the Commission’s decision refusing access under Regulation 1049/2001 (Order of 10 January 2013 in Case T-403/05 RENV MyTravel v Commission [EU:T:2013:3] para 2), since it only sought access to these documents in order to rely on them in the main damages case. 47 See the adversarial principle in GC RoP, Arts 64–65. 48 GC RoP, Art 104. See, eg Joined Cases T-391/03 and T-70/04 Franchet and Byk v Commission [EU:T:2006:190] para 36.

Access to Documents 553 against cartel members before national courts, where the published non-confidential version of the Commission’s cartel decision might not provide sufficient evidence for such actions,49 or litigation between an EU institution and a private party before a national court.50 It is therefore of great importance to ensure that national judges can request documents held by institutions or bodies for the purposes of deciding the legal dispute before them – also with a view to supplying those documents to litigants who need such evidence for arguing their case. The Zwartfeld order. The Court of Justice started developing its case law in Zwartfeld, where a national court conducting proceedings on the infringement of EU law sought production of information by the Commission concerning the facts related to that infringement. The Court of Justice recalled that the principle of sincere cooperation (now Article 4(3) TEU) imposes mutual duties on the Member States and the EU institutions in carrying out tasks flowing from the Treaties. It also highlighted that the duty of sincere cooperation imposed on EU institutions is of particular importance vis-à-vis the judicial authorities of the Member States, who are responsible for ensuring that EU law is applied and respected in the national legal system. The Court thus held that every EU institution had to give its active assistance to such national legal proceedings, by producing documents to the national court.51 Consequently, it ordered the Commission to transmit documents to the national court. This case law, according to which EU institutions or bodies should disclose their documents to national courts under the principle of sincere cooperation, was relied on in later judgments.52 In particular, the General Court held in Postbank that in proceedings related to the application of EU competition rules, the national court is entitled to seek information from the Commission on the state of any procedure which the Commission may have set in motion and to obtain from the Commission such economic and legal information as the latter may be able to supply to it.53

5.24

The Umbach judgment. In Umbach,54 a private party sought access to documents held by the Commission under Regulation 1049/2001 in order to rely on them in national court proceedings. In those national proceedings, the Commission claimed the reimbursement of a certain sum allotted to the private party within the framework of the TACIS programme. When applying for access to Commission documents under Regulation 1049/2001 (and also by relying on Article 6 of the European Convention on Human Rights (ECHR) on the right to a fair trial55), the private party put forward that the requested documents were necessary for arguing his case before the national court, where he was the defendant. The Commission (applicant in the national court case) refused to grant access under Regulation 1049/2001 without mentioning the ECHR. It was in this context that the private party brought an action for annulment against the refusal decision of the Commission. In its judgment, the General Court upheld the refusal under Regulation 1049/2001, without referring to Article 6 of the ECHR. It ruled, however, in an obiter dictum that, by virtue of the principle of sincere cooperation, the national court could request the

5.25

49 See the references to national court proceedings in Case T-2/03 Verein für Konsumenteninformation v Commission [EU:T:2005:125]. 50 See the references to national court proceedings in Case T-474/08 Umbach v Commission [EU:T:2010:443]. 51 Order of 13 July 1990 in Case C-2/88 IMM Zwartfeld and Others [EU:C:1990:315] paras 17 and 22. This case, as indicated by the reference IMM in the case number, was not a direct action or a preliminary ruling, but a request for judicial cooperation submitted by a Dutch judge. 52 See, eg Case C-94/00 Roquette Frères [EU:C:2002:603] paras 90–92. 53 Case T-353/94 Postbank v Commission [EU:T:1996:119] paras 64–65. 54 Case T-474/08 Umbach v Commission [EU:T:2010:443]. 55 Article 6 of the ECHR provides: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

554 Evidence and Confidential Information Commission to produce all documents which it deems necessary for deciding the case before it. If the Commission refused to grant the request without any objective reasons, the national court could ask the Court of Justice to deliver a preliminary ruling on the lawfulness of the refusal, as it is competent for ensuring compliance with the principle of sincere cooperation.56 This judgment seems to indicate that access to EU documents may be broader in proceedings before a national court than that under Regulation 1049/2001.57 5.26

The Eurobolt judgment. In Eurobolt,58 the national court made a preliminary reference concerning, inter alia, the validity of a regulation imposing definitive anti-dumping duties on fasteners originating in China and Malaysia. In the main case before the national court, Eurobolt, the applicant, brought an action against the decision of the national customs authority which obliged it to pay anti-dumping duties on the basis of the said anti-dumping regulation. Eurobolt put forward that the decision of the national customs authority was unlawful by reason of the illegality of the anti-dumping regulation it implemented, and asked the national court to make a preliminary reference on the validity of that regulation (cf para 3.707). The national court made the preliminary reference and also put questions to the Court of Justice on the possibilities of national courts to requests documents from EU institutions. The Court of Justice held in this regard, by reference to the Zwartfeld order59 (cf para 5.24), that the EU institutions were under a duty of sincere cooperation with the judicial authorities of the Member States, which were responsible for ensuring that EU law was applied and respected in the national legal system. On that basis, the EU institutions must, pursuant to Article 4(3) TEU, provide national courts with evidence and documents requested by the latter, unless the refusal to provide these is justified by legitimate reasons based, inter alia, on protecting the rights of third parties or the risk of impeding the functioning or the independence of the Union. Furthermore, the Court held that, on the basis of the combined reading of Article 267 TFEU and Article 4(3) TEU, a national court was entitled, prior to bringing proceedings before the Court of Justice, to approach the EU institutions that had taken part in drawing up the EU act whose validity was being contested before that court in order to obtain specific information and evidence from those institutions.60

5.27

How can parties obtain EU documents from national courts? While the above judgments and orders (cf paras 5.24–5.26) define the cooperation between the national courts and the EU institutions,61 in the framework of which national courts may directly request information and evidence from the latter, they do not provide any guidance on how litigants may gain access to these materials from the national courts.62 Apart from national procedural codes, the Charter of

56 Case T-474/08 Umbach v Commission [EU:T:2010:443] paras 42–46. See also Case C-94/00 Roquette Frères [EU:C:2002:603] paras 90–92. 57 See also V Luszcz, ‘Gunpowder for court battles: litigants’ access to EU institution documents’ (2012) Europäische Zeitschrift für Wirtschaftsrecht 492–493. 58 Case C-644/17 Eurobolt [EU:C:2019:555]. 59 Order of 13 July 1990 in Case C-2/88 IMM Zwartfeld and Others [EU:C:1990:315] paras 10–11. 60 Case C-644/17 Eurobolt [EU:C:2019:555] paras 27–32. 61 Case law only refers to EU institutions as the subjects of the principle of sincere cooperation in this context. However, as Article 4(3) TEU provides that ‘Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties’, there seems to be no obstacle preventing a national court from requesting a body, office or agency of the EU to supply documents. 62 For an illustration of the problem, see Joined Cases T-391/03 and T-70/04 Franchet and Byk v Commission [EU:T:2006:190] paras 138–139. The French criminal court refused to give the applicant access to documents it received from the Commission. It even requested the General Court not to order, as a measure of inquiry, their submission in the action for damages pending before the latter (Order of 6 June 2007, Joined Cases T-391/03 and T-70/04 Franchet and Byk v Commission [not reported]).

Access to Documents 555 Fundamental Rights63 may also be relevant in this regard. Its Article 41 provides that every person must be granted access to her or his file, while respecting the legitimate interests of confidentiality and of professional and business secrets. It is also possible to rely on the rights of the defence, the right to a fair trial, and the right to an effective remedy before the national court, enshrined in Article 47 of the Charter of Fundamental Rights and Articles 6 and 13 of the ECHR.64

5.1.2.4. Obtaining Documents in the Procedure before the General Court General. Aside from the possibility of requesting documents in the administrative procedure from the institution or body concerned or the possibility of doing so under Regulation 1049/2001 on public access to documents held by institutions and bodies, parties concerned may also obtain access to documents needed for litigation before the EU Courts through the latter. The relevant procedure is to apply to the Courts for a measure of organisation of procedure or of inquiry consisting in a request for materials or information addressed to the other party to the case or to third parties. Once the materials or information are produced by the addressee of the measure, the party that applied for the measure will obtain access to them in accordance with the adversarial principle, which prescribes that the Courts may only base their judgments and orders on information which was made available to all the parties and on which the latter had the opportunity to comment.65 Since natural or legal persons must bring their actions before the General Court, and it is, in most cases, the General Court that is responsible for establishing the facts of the case (appeal to the Court of Justice being limited to points of law), the most relevant provisions can be found in the GC RoP, which fleshes out the main principles contained in Article 24 of the Statute. This subsection only explains the specific provisions applicable in proceedings before the General Court, while the more general rules that apply to both EU Courts are presented in Section 4.2.7. Measures of Organisation of Procedure and of Inquiry.

5.28

(i) Legal Basis The Statute. Under Article 24(1) of the Statute, the ‘Court of Justice [of the EU] may require the parties to produce all documents and to supply all information which the Court considers desirable. Formal note shall be taken of any refusal’. Article 24(2) adds that the ‘Court may also require the Member States and institutions, bodies, offices and agencies not being parties to the case to supply all information which the Court considers necessary for the proceedings’.

5.29

Measures of organisation of procedure. As a measure of organisation of procedure (cf para 4.277 et seq), the General Court may invite the parties to the proceedings, as well as Member States and institutions or bodies that are not parties to the case (third parties), to produce documentary evidence, supply relevant information, and respond to questions in writing. On the basis of the adversarial principle, the documents and replies submitted by the parties and third parties must

5.30

63 As foreseen in its Art 51, the Charter of Fundamental Rights applies to the Member States only when they are implementing Union law. 64 See, eg ECoHR Case Chahal v United Kingdom (22414/93) 15 November 1996, § 131. 65 GC RoP, Art 64. The CJ RoP does not contain any parallel provision. The settled case law nonetheless applies: Joined Cases C-42/59 and C-49/59 SNUPAT v High Authority [EU:C:1961:5] p. 84; Case C-480/99 P Plant and Others v Commission and South Wales Small Mines [EU:C:2002:8] para 24; Case C-199/99 P Corus UK v Commission [EU:C:2003:531] para 19; C-89/08 P Commission v Ireland and Others (exemption from excise duty on mineral oils) [EU:C:2009:298] paras 52–55.

556 Evidence and Confidential Information be served on all the parties to the proceedings, including interveners.66 Measures of organisation of procedure are of an informal nature, and the ‘invitation’ to produce documents may be declined if due justification is given by the addressee of the measure. The relevant provisions are contained in Article 89(2)–(3) of the GC RoP and read as follows: 2.

Measures of organisation of procedure shall, in particular, have as their purpose:

(a) to ensure the efficient conduct of the written or oral part of the procedure and to facilitate the taking of evidence; (b) to determine the points on which the parties must present further argument or which call for measures of inquiry; … 3.

Measures of organisation of procedure may, in particular, consist of: (a) putting questions to the parties; (b) inviting the parties to make written or oral submissions on certain aspects of the proceedings; (c) asking the parties or third parties for the information referred to in the second paragraph of Article 24 of the Statute; (d) asking the parties to produce any material relating to the case; (e) summoning the parties to meetings.

5.31

Measures of inquiry. The measures of inquiry (cf para 4.285 et seq) are intended to prove the veracity of the facts alleged by one of the parties in support of his pleas in law.67 They are prescribed by an order which sets out the facts to be proved.68 The order must be complied with; however, in the case of sensitive or confidential information or evidence, the addressee of the order may request that limited or no access be given to other parties to the proceedings (cf paras 4.292–4.295 and Section 5.1.3. Treatment of Confidential and Sensitive Evidence by the General Court). As to requesting information or materials, Article 91 of the GC RoP provides as follows: Without prejudice to Articles 24 and 25 of the Statute, the following measures of inquiry may be adopted: … (b) a request to a party for information or for production of any material relating to the case; (c) a request for production of documents to which access has been denied by an institution in proceedings relating to the legality of that denial; …

It is worth mentioning that, while the General Court may ‘invite’ a Member State or an EU institution or body that is not a party to the case to provide all relevant information as a measure of organisation of procedure, it has no power to order these third parties to submit such information by a measure of inquiry. Thus, the General Court may only request, through an order, information or materials from the parties (including interveners) to the proceedings before it. (ii) Applying for Access to Documents 5.32

The application for access to documents through a measure to be adopted by the General Court. If a party to the proceedings before the General Court wishes to receive information, 66 GC RoP, Art 64 provides, under the heading ‘Adversarial nature of the proceedings’, that: ‘Subject to the provisions of Article 68(4), Article 104, Article 105(8) and Article 144(7) [of the GC RoP] the General Court shall take into consideration only those procedural documents and items which have been made available to the representatives of the parties and on which they have been given an opportunity of expressing their views.’ GC RoP, Art 65(1) adds: ‘Subject to the provisions of Article 68(4), Articles 103 to 105 and Article 144(7) [of the GC RoP] procedural documents and items included in the file in the case shall be served on the parties.’ 67 Case T-141/01 Entorn v Commission [EU:T:2005:10] paras 129–130); Case T-560/08 P Commission v Meierhofer [EU:T:2010:192] para 64. 68 GC RoP, Art 92(1).

Access to Documents 557 materials or a copy of a document69 held by another party to the case (including interveners), or by a Member State, institution or body that is not taking part in the proceedings (third parties), he must lodge an application with the General Court in which he proposes that the latter adopt a measure of organisation of procedure or a measure of inquiry, consisting in a request for information or material. The right to file such applications is reserved to the main parties,70 although interveners may also suggest that the General Court adopts such measures. In most cases, it is the applicant in actions seeking the annulment of an EU act71 or in actions for damages who wishes to obtain access to a document held by an EU institution or body. As to the lodging of such applications, Article 88 of the GC RoP provides as follows: 1. 2.

3.

Measures of organisation of procedure and measures of inquiry may be taken or modified at any stage of the proceedings … on the application of a main party. The application referred to in paragraph 1 must state precisely the purpose of the measures sought and the reasons for them. Where the application is made after the first exchange of pleadings, the party submitting that application must state the reasons for which he was unable to submit it earlier. Where an application for measures of organisation of procedure or for measures of inquiry is made, the President shall give the other parties an opportunity to comment on that application.

Timing of the application for a measure consisting in a request for documents. It follows from the general rules on offering evidence that such an offer must be made in the first written pleading (cf para 4.196) submitted by the party who wishes to rely on that evidence. If the offer of evidence is made at a later stage of the procedure, the delay must be duly justified,72 failing which the offer of evidence is inadmissible (cf paras 4.243 and 4.272). The more specific provisions in the GC RoP on the application for a measure consisting in a request for documents are in line with the above general rules. Article 88(2) of the GC RoP provides that where the application for a measure of organisation of procedure or of inquiry to be adopted by the General Court ‘is made after the first exchange of pleadings, the party submitting that application must state the reasons for which he was unable to submit it earlier’. It follows that, in the typical situation where the applicant seeks access to a document held by the defendant, the applicant should make an application for a measure to be taken by the General Court in the action in which he initiates the Court proceedings. If he makes that application for a measure at a later stage of the procedure, eg in the reply or at the hearing, he must duly justify that he was unable to submit that application for a measure earlier, failing which the application for a measure will be dismissed as late and inadmissible.73 The fact that the applicant becomes aware of the existence of the document at issue from the defence may be a justification for submitting the application for a measure only in the reply.74 Conversely, the mere fact that the applicant requested under Regulation 1049/2001 the same documents from the defendant institution but had not received a definitive response from the latter at the time of lodging the action initiating the Court proceedings is not

69 ‘Information’, ‘materials’, ‘documents’ and ‘evidence’ are used largely as synonyms in this chapter. 70 GC RoP, Art 88(1). 71 Actions seeking the annulment of an EU act are the following: actions for annulment brought under Article 263 TFEU, staff cases with an annulment claim brought under Article 270 TFEU, and intellectual property cases brought under the IP Regulations (cf para 3.530). 72 GC RoP, Art 85(1). 73 Case T-591/15 Transavia Airlines v Commission [EU:T:2018:946] paras 259–264; Case T-86/17 Le Pen v Parliament [EU:T:2018:357] para 207. 74 Case T-86/17 Le Pen v Parliament [EU:T:2018:357] para 208.

5.33

558 Evidence and Confidential Information an acceptable justification for submitting the application for a measure only later, in the reply. In fact, the procedure for requesting access to documents under Regulation 1049/2001 is entirely dissociated from the proceedings before the General Court.75 5.34

Content of the application for a measure consisting in a request for documents. Article 88(2) of the GC RoP provides that the application for a measure of organisation of procedure or of inquiry to be taken by the General Court ‘must state precisely the purpose of the measures sought and the reasons for them’. If the party provides no such grounds for the production of the documents, the application for a measure will be dismissed as inadmissible.76 Thus, in order to obtain documents through a measure taken by the General Court, the requesting party must identify the desired documents and provide the Court with at least minimum information indicating the utility of those documents for the purposes of the proceedings in order to enable the Court to determine whether ordering the production of certain documents is appropriate.77 The mere fact that the applicant had directly requested the defendant to give access to the desired documents in the administrative procedure or upon the adoption of the contested act, and that his request was refused, is not in itself capable of demonstrating the utility of those documents for the purposes of the Court proceedings.78 An application for access to documents under Regulation 1049/2001 prior to instituting the Court proceedings is also immaterial when assessing the utility of the documents.79 The party asking for production of documents has to show that they are relevant to the subject matter of the case.80 For instance, in Zenab v Commission, the General Court essentially based its decision to reject the request for a measure in relation to the complete text of several documents on the grounds that the content of those documents went largely beyond the subject matter of the case and, therefore, the refusal to give access could not be an obstacle to the exercise of the rights of the defence.81 Similarly, a proposal to request an overly large number of documents (all the documents relating to the award procedure conducted by the European Agency for Reconstruction, in which the applicant participated without success) was dismissed by the General Court in Sogelma v EAR. The General Court ruled that the examination by the EU judicature of the complete internal file of an EU body with a view to verifying whether that body’s decision had been influenced by factors other than those indicated in the statement of the reasons in that decision was an exceptional measure of inquiry. Such a measure presupposes the presence of serious doubts as to the real reasons behind the decision and, in particular, to suspicions that those reasons were extraneous to the objectives of EU law and hence amounted to a misuse of powers.82

5.35

The discretion of the General Court to adopt a measure consisting in a request for documents. Under settled case law, the Courts have wide discretion regarding the choice of measures of inquiry83 and the parties have no means to constrain them to adopt a particular measure. The General Court is the sole judge of any need to supplement the information

75 Case T-591/15 Transavia Airlines v Commission [EU:T:2018:946] paras 259–264; Case T-630/15 Scandlines Deutschland v Commission [EU:T:2018:942] paras 55–57. 76 Case T-281/16 Solelec and Others v Parliament [EU:T:2017:711] paras 165–166 and 168. 77 Case C-185/95 P Baustahlgewebe v Commission [EU:C:1998:608] para 93; Case T-411/06 Sogelma v EAR [EU:T:2008:419] para 152. See also Case T-86/17 Le Pen v Parliament [EU:T:2018:357] para 208. 78 Case T-411/06 Sogelma v EAR [EU:T:2008:419] para 154. 79 Case T-33/06 Zenab v Commission [EU:T:2009:250] para 40. 80 Order of 18 November 1997 in Case T-367/94 British Coal v Commission [EU:T:1997:179] para 24. 81 Case T-33/06 Zenab v Commission [EU:T:2009:250] para 38. 82 Case T-411/06 Sogelma v EAR [EU:T:2008:419] para 157. 83 Order of 16 December 2004 in Case C-222/03 P APOL and AIPO v Commission [EU:C:2004:818] para 67.

Access to Documents 559 available to it.84 These principles mean that even if a party requests the General Court to invite or to order the other party to produce evidence, the General Court has wide discretion whether to grant such a request.85 The exercise of this discretion may nonetheless be submitted to the control of the Court of Justice.86 Even though appeals are limited to points of law, the review on appeal may indeed concern the question whether the rules relating to the burden of proof and the taking of evidence have been observed by the General Court,87 since the Court of Justice has the power to review a breach of procedure by the General Court88 (cf para 3.633). For instance, in Baustahlgewebe, the Court of Justice examined, on appeal, the plea in law of the appellant based on the allegedly illegal refusal by the General Court to request documents from the defendant at first instance. That plea, based on the breach of the appellant’s rights of defence by the General Court, was admissible, but was dismissed on the substance.89 The discretion of the General Court in taking evidence also implies that it may invite or order the production of documents even if the application for such a measure, made by a party to the case, was late, as long as the General Court considers that the documents at issue are useful for deciding the case.90 This is because the General Court has the power to adopt, of its own motion, any measure of organisation of procedure or of inquiry at any stage of the procedure91 (cf para 4.271). The invitation to produce materials. Where the General Court grants the application of the party for a measure of organisation of procedure related to the production of documents or other information, it issues an ‘invitation’ to the holder of the relevant materials. The General Court may invite the other main party or the intervener, as well as Member States and institutions or bodies that are not taking part in the proceedings (third parties), to produce documents or information. The addressee of such an ‘invitation’ usually complies with it and provides the requested documents or information, in which case the latter are served on all the parties under the adversarial principle92 (cf para 5.39). However, since measures of organisation of procedure are not binding, the addressee of the invitation to produce materials may also decline that invitation by setting out the reasons why the requested materials are confidential (cf para 5.37).

5.36

Comments and objections by the addressee of the invitation to produce materials. The GC RoP explicitly foresees that, where an application for a measure of organisation of procedure or of inquiry is made by a party, the General Court shall give the other parties an opportunity to comment on that application.93 Where, as such a comment,94 the other party (normally the addressee of the measure) submits that (i) certain information or material is confidential and therefore he objects to its transmission to the party applying for the measure or (ii) proposes that

5.37

84 Case C-260/05 P Sniace v Commission [EU:C:2007:700] para 77; Joined Cases T-144/07, T-147/07, T-149/07, T-150/07 and T-154/07 ThyssenKrupp Liften Ascenseurs and Others v Commission (elevators cartel) [EU:T:2011:364] para 151; Joined Cases C-125/07 P, C-133/07 P and C-137/07 P Erste Group Bank and Others v Commission [EU:C:2009:576] para 319; Case T-591/15 Transavia Airlines v Commission [EU:T:2018:946] para 265; Case T-612/16 PS v EIB [EU:T:2018:483] para 63. 85 Case T-161/17 Le Pen v Parliament [EU:T:2018:848] paras 178–187. 86 Case T-854/16 Barata v Parliament [EU:T:2018:809] paras 104–105. 87 Joined Cases C-239/11 P, C-489/11 P and C-498/11 P Siemens and Others v Commission (gas insulated switchgear cartel) [EU:C:2013:866] para 39. 88 Statute, Art 58. 89 Case C-185/95 P Baustahlgewebe v Commission [EU:C:1998:608] paras 79–95. 90 Case T-591/15 Transavia Airlines v Commission [EU:T:2018:946] paras 265–266. 91 GC RoP, Art 88(1). 92 GC RoP, Arts 64–65. 93 GC RoP, Art 88(3). 94 Such a comment is normally made in the response to the measure of organisation of procedure.

560 Evidence and Confidential Information a measure of inquiry be adopted which restricts access to the material produced,95 the General Court shall, if it considers that the information or material may be relevant for deciding the case, order its production by means of a measure of inquiry under Article 91(b) of the GC RoP. Where the General Court agrees that the materials submitted are indeed confidential, their treatment is thereafter governed by Article 103 of the GC RoP96 (cf Section 5.1.3. Treatment of Confidential and Sensitive Evidence by the General Court). It is important to recall that the General Court has no power to order a Member State, or an EU institution or body not party to the case (third parties), to produce materials under Article 24(2) of the Statute (cf paras 5.29–5.31). Therefore, if such a third party objects to the invitation to produce materials, which is addressed to it as a measure of organisation of procedure, the General Court has no further means to obtain those materials, except where they are also in the possession of a party to the case. 5.38

The order to produce documents. Under the new provisions introduced by the GC RoP of 2015 (cf para 4.292), the General Court may only order the production of documents through a measure of inquiry if it first attempted to receive them through an ‘invitation’ issued as a measure of organisation of procedure, further to which the addressee of the measure declined to produce the documents.97 In this regard, Article 92(3) of the GC RoP provides as follows: A measure of inquiry referred to in Article 91(b) [request to a party for information or for production of materials] may be ordered only where the party concerned by the measure has not complied with a measure of organisation of procedure previously adopted to that end, or where expressly requested by the party concerned by the measure and that party explains the need for such a measure to be in the form of an order for a measure of inquiry.

The usual reason for not complying with a measure of organisation of procedure consisting in a request for documents is that the latter may be sensitive or confidential vis-à-vis the other party to the case, and the addressee of the measure therefore considers that they should not be automatically served, upon their production, on that other party under the adversarial principle.98 The General Court has several possibilities in these situations. First, if it considers that the grounds for not complying with the measure of organisation of procedure are not convincing, it may order the production of documents without setting any particular conditions. The documents produced will be served on all the parties in accordance with the adversarial principle. Secondly, the General Court may consider, possibly on the recommendation of the addressee of the measure, that a special order for producing documents must be adopted under Article 92(3) of the GC RoP, which prevents the service of the documents on the other parties while it allows the representatives of the latter to inspect the documents at the Registry (cf para 4.293). Thirdly, the General Court may consider that the application of Article 103 of the GC RoP on confidential information or material is necessary. In this case, the documents produced will initially not be served on the other parties (nor is access granted to their representatives) and the Court will weigh up, on the one hand, the interest related to the confidential treatment of the documents, and, on the other hand, the usefulness of the documents for deciding the case and the right 95 The reason why the addressee may propose the adoption of a measure of inquiry is that the General Court may limit access to materials produced in response to such a measure (conversely, materials produced in response to a measure of organisation of procedure are automatically served on all the parties). For instance, as a special measure of inquiry, the General Court may order the defendant to produce confidential documents and prescribe in the order that these documents may not be furnished on the applicant but may only be inspected by the latter’s representatives at the Registry (cf para 4.293). 96 GC PR, para 189. 97 GC PR, para 188. 98 GC RoP, Arts 64–65.

Access to Documents 561 to a fair trial of the party who requested access. This procedure is explained in more detail in Section 5.1.3. Treatment of Confidential and Sensitive Evidence by the General Court. (iii) Outcome of the Application for Access to Documents Main rule: a copy of the documents is served on all the parties under the adversarial principle. Article 64 of the GC RoP provides, under the heading ‘Adversarial nature of the proceedings’, that, subject to certain exceptions,99 ‘the General Court shall take into consideration only those procedural documents and items which have been made available to the representatives of the parties and on which they have been given an opportunity of expressing their views’. Article 65(1) of the GC RoP adds that, subject to certain exceptions,100 ‘procedural documents and items included in the file in the case shall be served on the parties’.101 This means that, if the addressee of the measure of organisation of procedure consisting in a request for documents complies with the request without any objection, the party that made the application for access to documents (cf para 5.32) will receive a copy of the documents applied for. The result is the same where the addressee of the measure of organisation of procedure declines furnishing the requested documents but, subsequently, the General Court orders their production in a measure of inquiry without restricting access by the other party (cf para 5.38). These two scenarios cover the large majority of cases, and it is a quite rare situation where the party applying for documents does not obtain access to them in the procedure before the General Court (cf para 5.40).

5.39

Exceptions: the rules on confidential and sensitive evidence. The addressee of the request for documents may put forward valid grounds regarding the sensitivity or the confidentiality of the documents applied for by the other party. In these situations, the General Court may adopt a special order on production of documents which prescribes that only the representatives of the requesting party may inspect the documents in the Registry and no copies are served (cf para 4.293). The General Court may also apply Articles 103 and 105 of the GC RoP (cf Section 5.1.3. Treatment of Confidential and Sensitive Evidence by the General Court). These provisions exclude the automatic service of the documents received in response to a measure of inquiry and require that the General Court balances the relevance of the evidence to the case and the public or private interest in keeping it confidential against the interest of the requesting party (usually the applicant) in receiving it, in the light of the principle of the right to a fair trial. This balancing exercise may bring as a result: (i) that full access is granted to the requesting party; (ii) that the document concerned is removed from the file and is not used by the General Court; (iii) that only partial access to the document is granted to the requesting party while the remainder of the document is removed from the file; or (iv) that, exceptionally, the document is kept on file and used by the General Court but the requesting party does not obtain any access to it, by way of derogation to the adversarial principle.102

5.40

Access to documents under the GC RoP is the broadest but latest opportunity to receive documentary evidence. It is important to note that access to documents is broader under the regime of the GC RoP than under the principle of the rights of the defence (cf Subsection 5.1.2.1. Access to Documents in the Administrative Procedure). Indeed, the General Court may also invite or order the defendant to produce documents in order to verify if the latter respected the

5.41

99 GC

RoP, Arts 68(4), 104, 105(8) and 144(7). RoP, Arts 68(4), 103–105 and 144(7). 101 See also GC PR, paras 173–174. 102 Such a derogation is only allowed under Art 105(8) of the GC RoP (cf para 5.63). 100 GC

562 Evidence and Confidential Information rights of the defence of the applicant in the administrative procedure. It is also broader than access that can be obtained under Regulation 1049/2001 or its equivalents (cf Subsection 5.1.2.2. Public Access to Documents under Regulation 1049/2001 or Its Equivalents). In fact, the said regulation and its equivalents concern public access to documents, tantamount to publication and without any regard to the rights of the applicant in a procedure before the EU Courts or national courts (cf paras 5.19–5.20). Conversely, access to documents under the GC RoP is specifically designed to provide the applicant with the documentary evidence he needs to challenge an EU act in a procedure before the General Court, which means that the use of the evidence is limited to the first instance and appeal proceedings before the EU Courts. This makes the institution or body more willing to supply evidence than under the regime of public access, which also allows the party to disclose it publicly. Furthermore, under the GC RoP, the General Court takes into account the right of the requesting party to a fair trial, whereas such rights are irrelevant under the regime related to public access. It must, however, be borne in mind that access under the GC RoP is the latest opportunity to receive documents from EU institutions or bodies as compared to the other regimes. Therefore, notwithstanding the fact that access is broadest under the GC RoP, prospective applicants still have an interest in obtaining documents in the administrative procedure or through Regulation 1049/2001 or its equivalents ahead of lodging a Court action. That is because the action initiating the Court proceedings must contain all the pleas in law and arguments (cf para 4.105), while the possibility to submit new pleas in law or arguments in the reply or later is only allowed if they are based on ‘matters of law or fact which come to light in the course of the procedure’.103 Clearly, if the applicant is in possession of more pieces of relevant evidence before lodging the action, he can develop a more complete argumentation in his first written pleading. Conversely, if the applicant receives the necessary documentary evidence only in the proceedings before the General Court (under the rules on access foreseen in the GC RoP) and develops more pleas in law or arguments in the reply or later on that basis, he will have to justify the late submission of new pleas in law or arguments (cf para 4.227), or explain that the new arguments are an expansion of a plea in law that was already present in the action (cf para 4.235); failing that, the new pleas or arguments will be dismissed as inadmissible.

5.1.3. Treatment of Confidential and Sensitive Evidence by the General Court 5.42

General. The provisions in Articles 103 and 105 of the GC RoP, newly introduced in 2015, lay down detailed rules on the treatment of confidential and sensitive evidence. The procedure foreseen in Article 103 of the GC RoP has a wider scope as it applies to all sorts of confidential evidence except sensitive materials which pertain to the security of the Union or its Member States or to the conduct of their international relations.104 The treatment of the latter sensitive materials is regulated separately in Article 105 of the GC RoP, which is relevant especially in the context of actions for annulment brought against restrictive measures, such as fundfreezing. Articles 103 and 105 of the GC RoP are applicable both where the production of information or materials is ordered, as a measure of inquiry, by the General Court on its own initiative (cf para 4.271) and where the General Court takes such a measure further to granting an application for access to documents made by one of the main parties (cf para 5.32). Furthermore,

103 GC 104 GC

RoP, Art 84. RoP, Art 103(4).

Treatment of Confidential and Sensitive Evidence 563 Article 105 of the GC RoP also applies where sensitive materials are submitted by a party (usually the defendant) in support of his claims without being ordered to do so by the General Court. None of these provisions apply where materials are submitted in response to a measure of organisation of procedure, consisting in an invitation to produce documents or information. Rationale of the special provisions on handling confidential and sensitive evidence. One of the main goals pursued by the new GC RoP of 2015 was to address situations in which, by reason of its confidential or sensitive nature, evidence relevant to a case before the General Court cannot be communicated to one of the parties without the risk of causing harm to the other party or to third persons, or of jeopardising national security.105 In these situations, the General Court must find a balance between conflicting interests. On the one hand, the Court often needs confidential or sensitive evidence in order to decide the case. However, under the adversarial principle, the General Court may, as a rule, only found its decision on evidence which has been communicated to all the parties and on which the latter had an opportunity to express their views.106 The respect of the adversarial principle pertains to the right to a fair trial of the parties to the case, enshrined in Article 47 of the Charter of Fundamental Rights. On the other hand, the communication of confidential evidence to a party may harm the interests of the other party (eg undermine the effectiveness of the Commission’s leniency programme in cartel cases) or of third parties (such as competitors of the applicant whose confidential economic data are contained in materials relevant for deciding the case), or even pose a risk to the security of the Union or of its Member States. The need for a legislative amendment of the old GC RoP of 1991 was highlighted inter alia in the People’s Mojahedin Organization of Iran case107 (cf para 5.54).

5.43

Changes brought by the GC RoP of 2015. With account being taken of the above developments (cf para 5.43) and the experience gained in reconciling the respect of the adversarial principle with the interest in keeping certain evidence confidential, the GC RoP of 2015 introduced several important changes in respect of handling confidential and sensitive materials. First, Article 92(3) codifies pre-existing case law on special measures of inquiry, through which, albeit the production of confidential materials is ordered by the General Court and those materials are added to the case file, they are not served on the other party but may only be inspected by his representatives at the Registry (cf para 4.293).108 Secondly, Article 103 of the GC RoP introduced detailed rules on the treatment of confidential information and material produced in the context of measures of inquiry, pursuant to which the General Court may decide to give full or partial access to documents to all the parties, or to remove the documents from the case file, in full compliance with the adversarial principle (cf Subsection 5.1.3.1. Treatment of Confidential Evidence under Article 103 of the GC RoP). Thirdly, Article 105 of the GC RoP also brought a new set of provisions which respond, in particular, to the specific confidentiality requirements related to evidence used by the EU institutions when adopting fund-freezing measures.109 This Article relates to the treatment of sensitive information or material pertaining to the security of the EU or its Member States or to the conduct of their international relations. Under Article 105 of the GC RoP, the

5.44

105 K Andová and E von Bardeleben, ‘La refonte du règlement de procedure du Tribunal de l’Union européenne: pour une efficacité juridictionnelle renforcée’ (2015/7) Europe étude 6, paras 29–36. 106 GC RoP, Art 64. 107 Case T-284/08 People’s Mojahedin Organization of Iran v Council [EU:T:2008:550] paras 58 and 76; confirmed on appeal in Case C-27/09 P France v People’s Mojahedin Organization of Iran [EU:C:2011:853]. 108 K Andová and E von Bardeleben, ‘La refonte du règlement de procedure du Tribunal de l’Union européenne: pour une efficacité juridictionnelle renforcée’ (2015/7) Europe étude 6, para 34. 109 K Andová and E von Bardeleben, ‘La refonte du règlement de procedure du Tribunal de l’Union européenne: pour une efficacité juridictionnelle renforcée’ (2015/7) Europe étude 6, para 30.

564 Evidence and Confidential Information General Court may also decide to give full or partial access to documents to all the parties, or remove the evidence from the case file. However, as a unique feature in the GC RoP, it may also rely, in its judgment, on sensitive evidence not communicated to all the parties, as an exception from the adversarial principle110 (cf Subsection 5.1.3.2. Treatment of Sensitive Evidence under Article 105 of the GC RoP).

5.1.3.1. Treatment of Confidential Evidence under Article 103 of the GC RoP 5.45

General. Under Article 103 of the GC RoP on the confidential treatment of information or materials, where the party producing evidence in response to a measure of inquiry requests to keep that evidence confidential, the General Court does not communicate it straightaway to the other parties. Instead, the Court first examines its relevance and confidential nature. If the information or material is both relevant and confidential, it weighs the interest in keeping it confidential against the requirements related to the right to a fair trial of the party who initially does not obtain access. The outcome of this procedure may be that the General Court gives full or partial access to the documents at issue, or removes them from the case file and does not rely on them in the final judgment or order closing the case. By selecting any of these options, the Court fully respects the adversarial principle.

5.46

Article 103 of the GC RoP is only applicable in the context of measures of inquiry. While the General Court may invite a party to the case to submit materials as a measure of organisation of procedure, the party may refuse to produce them by reason of their confidential nature, possibly by explaining the need for such a measure to be in the form of an order for a measure of inquiry. In such a case, under Article 91(b) of the GC RoP, the General Court may order a party to produce information or material (cf para 4.292).111 The rules on handling confidential evidence foreseen in Article 103 of the GC RoP are only applicable where the production of evidence has been ordered in such a measure of inquiry.112

5.47

Reasons for confidential treatment. The party holding relevant evidence may have various reasons for objecting to or setting conditions for its production. It must be borne in mind that under the adversarial principle, information or material produced in the proceedings before the General Court by a party is automatically transmitted to the other parties.113 Giving access to information or materials to all the parties may harm public interest or the private interest of a third party. For instance, when invited by the General Court via a measure of organisation of procedure, the Commission usually refuses to furnish copies of the transcripts of leniency statements made orally in cartel investigations; it will, however, comply with a measure of inquiry (ie an order) to do so. This is because submitting such transcripts to the General Court (which normally entails their transmission to the applicant) without being compelled by an order to do so in the case before the General Court would imply that national courts could ask the applicant to disclose the self-incriminating oral statements, made by the leniency applicant, in national

110 GC RoP, Art 105(8). 111 Under GC RoP, Art 92(3), the General Court may only order the production of materials where the party refused to comply with a measure of organisation of procedure issued to that end. 112 GC RoP, Art 92(3); GC PR, para 188. Where the party produces materials in response to a measure of organisation of procedure and only makes a tentative request for their confidential treatment, Art 103 of the GC RoP is not applicable, and the materials must be served on the other party under Art 65 of the GC RoP (Case T-481/14 European Dynamics Luxembourg and Evropaïki Dynamiki v EIT [EU:T:2016:498] paras 469–473). 113 GC RoP, Arts 64–65.

Treatment of Confidential and Sensitive Evidence 565 damages cases brought against the latter.114 Therefore, from the point of view of the Commission, the production of the transcripts of leniency statements without any restriction on the form of access by the other party would entail the risk of undermining the efficiency of its leniency policy. Consequently, special measures of inquiry are applied in these situations, and the leniency materials may only be accessed by the applicant or its lawyers in the premises of the Court (similarly to the form of access during the administrative procedure) (cf para 4.293). Another situation in which the Commission may well object to or set conditions for the production of materials in response to a measure of organisation of procedure is where those materials contain confidential information related to business secrets or commercial data of a competitor of the applicant, as often happens in actions for annulment brought against decisions adopted by the Commission in the fields of antitrust and mergers. In such cases, the objections or conditions of the Commission are justified by the protection of the private interest of a third party. The General Court has several options in these situations. For instance, when asked to do so by the Commission, it may restrict access to the documents received in response to the measure of organisation of procedure in such a way that only the lawyers of the applicant may inspect the relevant documents. It may also order the production of such materials, and apply Article 103 of the GC RoP when deciding whether to give the applicant full, partial or no access. The General Court orders the production of the materials but withholds them during the examination of their content. Where the party holding the evidence objects to its transmission to the other party, the General Court may still order its production as a measure of inquiry,115 and that order must be complied with. However, under the special regime foreseen in Article 103 of the GC RoP, the General Court does not serve the evidence automatically on the other party but examines first its relevance to the outcome of the proceedings and verifies its confidential nature.116 If the materials are not relevant, the Court removes them from the file and sends them back to the party that produced them.117 If the materials are relevant but not confidential, the Court serves them on the other party. It is important to note that where several documents are claimed to be confidential by the party holding them, the General Court may require him to substantiate the claim regarding the confidentiality of each individual document.118

5.48

Balancing exercise where the materials are both relevant and confidential. If the General Court considers that the materials concerned are both relevant for deciding the case and confidential, the Court weighs the interests in preserving their confidentiality against the requirements related to the right to effective judicial protection, in particular, to the observance of the adversarial principle.119 After weighing up those matters, the General Court has two options: granting full access (cf para 5.50) or partial access (cf para 5.51).

5.49

114 Note that, before the litigation, the applicant has normally already obtained access to file in the administrative procedure leading up to the cartel decision and could, in that context, listen to oral statements on the premises of DG Competition and prepare its own transcript of them (which are thought not to be subject to disclosure rules). The reason for the safeguards on the submission of such leniency evidence to the Courts is not so much their confidential nature (since the applicant already had access to their content), but rather ensuring that they are not provided in a way that could give rise to disclosure before national courts. 115 GC RoP, Art 91(b). 116 GC RoP, Art 103(2); GC PR, paras 189–190. 117 See, eg Order of 23 March 2017 in Case T-624/16 Gollnisch v Parliament [EU:T:2017:243] paras 29–30. 118 Order of 26 September 2008 in Case T-284/08 People’s Mojahedin Organization of Iran v Council [not reported]. See also ECoHR Case Chahal v United Kingdom (22414/93) 15 November 1996, § 131. 119 GC RoP, Art 103(2); GC RoP, Art 64.

566 Evidence and Confidential Information 5.50

Granting full access, possibly subject to the undertaking of the representatives to keep the materials confidential. After the balancing exercise (cf para 5.49), the General Court may decide that the information or material must be brought to the attention of the other main party, notwithstanding its confidential nature.120 In that respect, the Court may, by way of a measure of organisation of procedure, request the representatives of the parties other than the party who produced the confidential information to give an undertaking121 to preserve the confidentiality of the document or item by not communicating to their respective clients or to a third party the information that is to be disclosed to them.122 Any breach of that undertaking may result in disciplinary measures, such as exclusion from the proceedings or informing the national bar to which the lawyer of a party is answerable of the latter’s misconduct.123

5.51

Granting partial access. Alternatively, as a result of the balancing exercise (cf para 5.49), the General Court may decide not to communicate the confidential information, whilst nevertheless ensuring that the other main party is provided with non-confidential information so that he can, to the greatest extent possible, make his views known in compliance with the adversarial principle. The Court then orders the main party who produced the confidential information to communicate certain particulars in such a way as to enable the preservation of confidentiality to be reconciled with the adversarial nature of the proceedings. For instance, the party holding the information may be requested to prepare a non-confidential version or a summary of the material to be transmitted to the other party, or the latter may only receive excerpts of the relevant documents. The parties may also be summoned to an informal meeting to discuss confidentiality issues.124 If the Court considers that the other main party cannot properly exercise his rights of defence, it may make one or more orders, until it considers that the proceedings can properly be continued on an adversarial basis.125

5.52

Adversarial principle – the General Court may only base its decision on information available to all the parties. Where the General Court considers that the communication of information to the other main party in accordance with the above procedures (cf para 5.51) has enabled that party to present his views effectively, the confidential information or material which has not been communicated to that party must not be taken into consideration by the Court. The confidential information or material must be removed from the file, and the parties informed accordingly.126

5.1.3.2. Treatment of Sensitive Evidence under Article 105 of the GC RoP 5.53

General. The provisions of Article 105 of the GC RoP on the ‘Treatment of information or material pertaining to the security of the Union or that of one or more of its Member States 120 GC RoP, Art 103(3). 121 GC RoP, Art 89(3)(c) provides that, as a measure of organisation of procedure, the General Court may invite ‘the parties to make written or oral submissions on certain aspects of the proceedings’, which may also concern the undertaking of the representatives to preserve the confidentiality of certain materials vis-à-vis their clients. Furthermore, under GC RoP, Art 91(3)(e), the General Court may summon the representatives of the parties to a meeting, at which the confidentiality issues may be discussed and the representatives may give a similar undertaking to keep the materials confidential. 122 GC PR, para 191. See Case T-456/10 Timab Industries and CFPR v Commission [EU:T:2015:296] paras 34–35; Case T-464/04 Impala v Commission [EU:T:2006:216] paras 18–19. 123 GC RoP, Art 55. 124 GC RoP, Art 91(3)(e); Case T-464/04 Impala v Commission [EU:T:2006:216] para 17. 125 GC RoP, Art 103(3); GC PR, para 192. See, eg the procedure followed by the General Court in Case T-456/10 Timab Industries and CFPR v Commission [EU:T:2015:296] paras 32–35 (NB: in this case, the old GC RoP of 1991 was applied). 126 GC PR, para 193; Case T-456/10 Timab Industries and CFPR v Commission [EU:T:2015:296] para 35.

Treatment of Confidential and Sensitive Evidence 567 or to the conduct of their international relations’ have been introduced by the new GC RoP of 2015. These rules have been conceived to apply mainly in actions for annulment brought against restrictive measures, such as fund-freezing, adopted by the Council inter alia in the context of armed conflicts, combating terrorism or economic sanctions imposed on persons residing in third countries. The evidence on which such acts have been based may be extremely sensitive. The purpose of the introduction of Article 105 of the GC RoP was to create a special regime for handling such evidence, even allowing the General Court, as a last resort, to rely on materials in its judgment which have not been communicated to the applicant, in derogation to the adversarial principle. Article 105 of the GC RoP applies where sensitive evidence is submitted by one of the parties (normally the defendant) in support of its claim and also where their production is ordered by the General Court, either of its own motion or on application by one of the main parties. Historical context. The need for a change in the old GC RoP of 1991 was highlighted in the People’s Mojahedin Organization of Iran case. The applicant brought an action for annulment against a Council decision maintaining the effect of fund-freezing measures adopted against the applicant. The General Court ordered the Council to produce the evidence justifying the measure, in order to carry out its judicial review. However, the Council objected to the order to produce information. It argued that the document containing the text at issue had been drawn up by the French authorities and therefore it was bound by the latter’s request for confidentiality, so that it could not provide the information to the General Court even on a confidential basis. The General Court ruled that without that information it was unable to review the lawfulness of the contested decision and annulled it.127 France appealed against the General Court’s judgment128 and argued that the very reason why it decided not to waive the confidentiality of the information at issue even as regards the General Court – even though it had communicated it to other Members States and the Council – was that, by virtue of Article 67(3) of the old GC RoP of 1991, the General Court could take into consideration only those documents which have been made available to the parties and on which they could express their views. France feared that once the Council submitted the information to the General Court, it would only depend on that Court’s appraisal of the need for evidence whether it takes it into account, in which case the Court would also have to disclose it to the applicant. Therefore, France saw no guarantee that, if produced, the documents would be treated confidentially vis-à-vis the applicant.129 Taking into account all of these elements, the Advocate General suggested that the old GC RoP of 1991 should be amended to allow for a special handling of closed evidence which is not to be communicated to the other party.130 Such an amendment indeed took place in 2015, when the new GC RoP was adopted, through the insertion of Article 105 of the GC RoP.

5.54

Article 105 of the GC RoP. Article 105 of the GC RoP lays down the detailed rules on the ‘Treatment of information or material pertaining to the security of the Union or that of one or

5.55

127 Case T-284/08 People’s Mojahedin Organization of Iran v Council [EU:T:2008:550] paras 58 and 76. 128 Case C-27/09 P France v People’s Mojahedin Organization of Iran [EU:C:2011:853]. 129 Opinion of AG Sharpston in Case C-27/09 P France v People’s Mojahedin Organization of Iran [EU:C:2011:482] paras 171–173. 130 Opinion of AG Sharpston in Case C-27/09 P France v People’s Mojahedin Organization of Iran [EU:C:2011:482] para 186 et seq. Eventually, in its judgment, the Court of Justice did not take a position in the issue of the amendment of the GC RoP of 1991, but simply upheld the finding in the first instance judgment that the applicant’s rights of defence had been breached (Case C-27/09 P France v People’s Mojahedin Organization of Iran [EU:C:2011:853]). On this issue, see also V Luszcz, ‘Gunpowder for court battles: litigants’ access to EU institution documents’ (2012) Europäische Zeitschrift für Wirtschaftsrecht 490.

568 Evidence and Confidential Information more of its Member States or to the conduct of their international relations’, presented in the following paragraphs. 5.56

Sensitive materials relied on by the party must be produced in a separate document in the proceedings before the General Court. Where, contrary to the adversarial principle131 under which all information and material must be fully communicated between the parties, a main party intends to base his claims on certain information or material but submits that its communication would harm the security of the Union or that of one or more of its Member States or the conduct of their international relations, he must produce that information or material by a separate document. The information or material thus produced must be accompanied by an application for confidential treatment thereof, setting out the overriding reasons which, to the extent strictly required by the exigencies of the situation, justify the confidentiality of that information or material being preserved and which militate against its communication to the other main party. The application for confidential treatment must also be submitted by a separate d ocument and must not contain anything which is confidential. Where the information or material in respect of which confidential treatment is sought has been transmitted to the main party by one or more Member States, the overriding reasons put forward by the main party to justify the confidential treatment of that information or material may include those provided by the Member State(s) concerned.132

5.57

Where sensitive materials are requested by the General Court as a measure of inquiry. Such sensitive information or material (cf para 5.56) may also be requested by the General Court in the form of a measure of inquiry. Formal note shall be taken of any refusal. The procedural regime related to confidential information foreseen in Article 103 of the GC RoP (cf paras 5.45–5.52) is not applicable to such sensitive materials, their treatment being governed exclusively by Article 105 of the GC RoP.133

5.58

The General Court withholds the sensitive materials during the examination of their content. Upon reception of the sensitive information or material from the party (cf paras 5.56–5.57), the General Court first examines its relevance for deciding the case and its confidential nature vis-à-vis the other main party. During this examination, the information or material is not communicated to the other main party.134 If the materials are not relevant, the General Court may remove them from the case file and send them back to the party who produced them.

5.59

Where the materials are relevant but not confidential. Where the General Court considers that the information or material claimed to be sensitive is relevant but not confidential for the purposes of the proceedings, it asks the party who produced it to authorise its communication to the other party. If the first party objects to such communication within a period prescribed by the President,135 or fails to reply by the end of that period, that information or material must not be taken into account in the determination of the case and must be returned to that party.136

5.60

Balancing exercise where the materials are both relevant and confidential. Where the General Court decides that the information or material is relevant for ruling on the case and is confidential vis-à-vis the other main party, it must not communicate that information or material to the latter. It must weigh the requirements linked to the right to effective judicial protection,

131 GC

RoP, Art 64. RoP, Art 105(1). 133 GC RoP, Art 105(2). 134 GC RoP, Art 105(3). 135 cf para 1.61. 136 GC RoP, Art 105(4). 132 GC

Anonymity and Confidential Treatment of Information 569 in particular the observance of the adversarial principle, against the requirements flowing from the security of the Union or its Member States, or the conduct of their international relations.137 Granting partial access. After the balancing exercise (cf para 5.60), the General Court makes a reasoned order specifying the procedures to be adopted to accommodate the conflicting interests related to keeping the materials confidential and to effective judicial protection. In this order, the General Court may request the party holding the materials to produce, for subsequent communication to the other main party, a non-confidential version or a non-confidential summary of the information or material, containing the essential content thereof and enabling the other main party, to the greatest extent possible, to make its views known.138

5.61

The sensitive materials may still be withdrawn. Within two weeks after service of the above decision on the procedures to follow (cf para 5.61), the sensitive materials may be withdrawn, wholly or in part, by the main party who produced them on his own initiative or in response to a measure of inquiry. Such withdrawn information or material must not be taken into account by the General Court in the determination of the case.139

5.62

Use as closed evidence – derogation from the adversarial principle. Where the General Court considers that sensitive information or material that was not included in the non-confidential version or summary made available to the other party (cf para 5.61) is essential in order for it to rule on the case, it may, by way of derogation from the adversarial principle140 and confining itself to what is strictly necessary, base its judgment on such information or material. When assessing that information or material, the General Court must take account of the fact that a main party has not been able to make his views on it known.141

5.63

Treatment of sensitive materials on appeal. Sensitive materials must be returned to the party that produced them if there is no appeal against the judgment or order closing the case before the General Court. If there is an appeal, the sensitive materials must be made available to the Court of Justice under special security rules.142 The materials are not communicated to the parties in the appeal proceedings.143

5.64

Detailed security rules. The detailed security rules applicable to information or material produced before the General Court in accordance with Article 105 of the GC RoP are laid down in Decision (EU) 2016/2386 of the Court of Justice of the European Union.144

5.65

5.1.4. Anonymity and Confidential Treatment of Information vis-à-vis the Public General. Under Article 95 of the Rules of Procedure of the Court of Justice (CJ RoP), where anonymity has been granted by the referring court, the Court of Justice must respect that 137 GC RoP, Art 105(5). 138 GC RoP, Art 105(6). 139 GC RoP, Art 105(7). 140 GC RoP, Art 64. 141 GC RoP, Art 105(8). 142 GC RoP, Art 105(10); CJ RoP, Art 190a(1). 143 CJ RoP, Art 190a(2). 144 Decision (EU) 2016/2386 of the Court of Justice [of the European Union] of 20 September 2016 concerning the security rules applicable to information or material produced before the General Court in accordance with Article 105 of its Rules of Procedure (OJ 2016 L 355, p. 5).

5.66

570 Evidence and Confidential Information anonymity in the preliminary ruling proceedings before it. Furthermore, at the request of the referring court, of a party to the main proceedings or of its own motion, the Court of Justice may also render anonymous one or more persons or entities concerned by the case. Under the new Practice Directions of the Court of Justice of 10 December 2019 (CJ PD), the Court of Justice as a general rule deals with preliminary ruling cases in anonymised form. This means that the Court will redact the names of individuals mentioned in the request for a preliminary ruling and, if necessary, other information that may identify them (cf para 4.465).145 The CJ PD also provide for the possibility to ask the Court of Justice to omit certain confidential information from publicly available documents in any type of proceedings, not just in preliminary rulings.146 Under Article 66 of the GC RoP, on a reasoned application by a party, made by a separate document, or of its own motion, the General Court may omit the name of a party to the dispute or the names of other persons mentioned in connection with the proceedings, or certain information, from those documents relating to a case to which the public has access if there are legitimate reasons for keeping the identity of a person or the information confidential.147 5.67

Practice. It is recommended that the application for anonymity or omission of information be made at the outset of the proceedings, or when lodging the procedural document containing the information concerned, or immediately after becoming aware of that procedural document, as the case may be.148 Such an early application may prevent the confidential information from appearing, for example, in the notice on the initiation of the case published in the Official Journal (cf para 4.200)149 or in other documents made public, such as the summary report for the hearing prepared by the General Court (cf para 4.322). In practice, the EU Courts normally grant the request for anonymity made by natural persons who are parties to the case in direct actions or appeals,150 or in respect of natural persons who are parties to the main case before the national court that made a preliminary reference.151 The Courts, either on their own initiative or upon the request of a party, may also anonymise data related to other natural persons to whom reference is made in the judgment, for instance, employees of companies who participated at cartel meetings.152 As to the omission of other information from the final judgments or orders, the request made by a party in this regard may be examined by the Courts either during the procedure or in the final decision. For instance, the General Court may find in the final judgment that it does not need to rely on the information claimed to be confidential, in which case it will dismiss the request for omission in that judgment.153 Where the Courts grant the request for omission, the parties may be given the opportunity to redact the confidential information from the adopted judgment before it is made public.

145 CJ

PD para 7. PD, paras 8–9. 147 GC RoP, Art 66; GC PR, paras 74–76. 148 GC PR, para 76; see also CJ PD, para 9. 149 CJ RoP, Art 21(4); GC RoP, Art 79. 150 See, eg Case T-156/08 P R v Commission [EU:T:2009:69]; Case F-128/12 CR v Parliament [EU:F:2014:38]. 151 See, eg Case C-578/16 PPU C. K. and Others [EU:C:2017:127]; Case C-638/16 PPU X and X [EU:C:2017:173]. 152 See, eg Case T-541/08 Sasol and Others v Commission (candle wax cartel) [EU:T:2014:628] paras 51 and 279. 153 Case T-914/16 Proof IT v European Institute for Gender Equality [EU:T:2018:650] paras 204–206. 146 CJ

5.2. Interim Measures [written by Vivien Terrien1]

5.2.1. Overview Notion. Pursuant to Article 278 TFEU and Article 157 of the Euratom Treaty, actions brought before the EU Courts shall not have suspensory effect.2 However, in order to avoid serious and irreparable harm due to the immediate application of an act, contested before the EU Courts, a party may seek an interim relief. The application for interim relief presupposes a main action concerning the legality of the contested act, to which the interim measures proceedings are ancillary. With respect to actions brought against the EU, since acts of institutions or bodies are presumed to be lawful, it is only exceptionally that a Judge hearing an application for interim measures may order suspension of the application of the contested act or prescribe other interim measures.3 With respect to national acts contested by the Commission in infringement cases, the Commission may request interim measures to prevent national acts from causing damage. The substantive test is the same in all cases: the applicant for interim measures must show: (i) fumus boni juris (ie that his arguments regarding the illegality of the contested act appear prima facie well founded); (ii) urgency (ie that in the absence of interim measures, the contested act would cause serious and irreparable harm); and (iii) that the balance of conflicting interests tilts in favour of adopting interim measures.

5.68

Legal basis. Article 278 TFEU provides that the EU Courts may, if they consider that circumstances so require, order that application of the contested act be suspended. Article 157 of the Euratom Treaty is similarly drafted. Moreover, Article 279 TFEU allows the EU Courts to prescribe any necessary interim measures in any cases before them.

5.69

Types of measures. An applicant may seek to obtain one or several types of measures from the interim relief Judge: the suspension of the operation of the challenged act in the main proceedings, as set out in Article 278 TFEU, and any necessary interim measures. As to the latter possibility, no list describing the measures that can be asked for exists. From the case law, interim measures may consist, inter alia, in an obligation to communicate documents,4 to report information,5

5.70

1 Référendaire, General Court of the EU. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the General Court. 2 For exceptions, cf para 3.525 (intellectual property cases) and para 3.586 (appeals against first instance judgments annulling a regulation). 3 See, eg Order of 19 July 2016 in Case T-131/16 R Belgium v Commission (excess profit exemption) [EU:T:2016:427] para 12. 4 See, eg Order of 15 July 2008 in Case T-202/08 R CLL Centres de langues v Commission [EU:T:2008:293]; Order of 2 March 2011 in Case T-392/09 R 1. garantovaná v Commission (calcium carbide cartel) [EU:T:2011:63] fourth indent of point 2 of the operative part. 5 See, eg Order of 17 December 2018 in Case C-619/18 R Commission v Poland (independence of the Supreme Court) [EU:C:2018:1021] fourth indent of point 1 of the operative part; Order of 2 March 2011 in Case T-392/09 R 1. garantovaná v Commission (calcium carbide cartel) [EU:T:2011:63] sixth indent of point 2 of the operative part.

572 Interim Measures to pay a sum,6 to adapt national legislation,7 to take measures to reach a certain result,8 or to refrain from a behaviour.9 5.71

Interim measures may be adopted in direct actions and in appeals. With respect to the Court of Justice, the provisions on interim measures are placed in Title IV ‘Direct Actions’ of the Rules of Procedure of the Court of Justice (CJ RoP),10 to which a reference is made in Title V ‘Appeals’.11 It follows that interim measures may be requested in direct actions (cf para 4.100) and in appeal cases. Conversely, the Court of Justice is not empowered to order interim measures in preliminary ruling proceedings. However, it has given indications as to the interim relief to be granted by national courts when making a preliminary reference to the Court of Justice.12 With respect to the General Court, interim measures may be requested in direct actions.13 They may also, theoretically, be applied for in intellectual property cases (cf para 3.519).14 However, such applications are not made in practice, essentially because the European Union Intellectual Property Office’s decisions do not take effect until the termination of the first instance and appeal proceedings (cf para 3.525), thus there is no need to ask inter alia for a suspension of operation.

5.72

Practice of the Court of Justice. During the past 10 years (2010–2019), 3.5 requests for interim relief have been lodged each year on average, with the lowest figure in 2012, when no such application was filed, and the highest in 2018 and 2019, with six requests each year.

5.73

Practice of the General Court. During the past 10 years (2010–2019), 39 requests for interim relief have been filed each year on average, with the lowest figure in 2012, with only 21 applications, and the highest in 2008, with 58 applications. Being an exceptional procedure, the requested interim measures are rarely granted. In 2018, as in 2017, the President of the General Court granted two applications for suspension of operation. The highest rate of success was reached in 2013, with seven decisions ordering suspension.

6 See, eg Order of 2 March 2011 in Case T-392/09 R 1. garantovaná v Commission (calcium carbide cartel) [EU:T:2011:63] fifth indent of point 2 of the operative part; Order of 29 January 1997 in Case C-393/96 P(R) Antonissen v Council and Commission [EU:C:1997:42] paras 36–42 (the mere possibility of such measure was envisaged). 7 See, eg Order of 29 June 1994 in Case C-120/94 R Commission v Greece (FYROM goods) [EU:C:1994:275]. 8 Order of 17 December 2018 in Case C-619/18 R Commission v Poland (independence of the Supreme Court) [EU:C:2018:1021] second indent of point 1 of the operative part. 9 See, eg Order of 16 January 2019 in Case C-1/19 P(R)-R JPMorgan Chase and Others v Commission [EU:C:2019:41] second indent of point 1 of the operative part; Order of 17 December 2018 in Case C-619/18 R Commission v Poland (independence of the Supreme Court) [EU:C:2018:1021] third indent of point 1 of the operative part; Order of 2 February 2018 in Case C-65/18 P(R)-R Nexans France and Nexans v Commission [EU:C:2018:62] second indent of point 1 of the operative part; Order of 4 October 2017 in Case C-576/17 P(R)-R Wall Street Systems UK v ECB [EU:C:2017:735] point 1 of the operative part; Order of 11 March 2016 in Case C-134/16 P(R) Chemtura Netherlands v EFSA [EU:C:2016:164] point 2 of the operative part; Order of 20 July 2016 in Case T-718/15 R PTC Therapeutics International v EMA [EU:T:2016:425] point 2 of the operative part; Order of 2 March 2011 in Case T-392/09 R 1. garantovaná v Commission (calcium carbide cartel) [EU:T:2011:63] third indent of point 2 of the operative part. 10 CJ RoP, Arts 160–166. 11 CJ RoP, Art 190(1). 12 See, eg C-213/89 Factortame I [EU:C:1990:257]; C-465/93 Atlanta Fruchthandelsgesellschaft [EU:C:1995:369]. 13 GC RoP, Arts 156–161. 14 GC RoP, Art 191.

The Parties to the Interim Relief Proceedings 573

5.2.2. The Parties to the Interim Relief Proceedings 5.2.2.1. Applicants The applicant for interim relief must be an applicant in the main action. Because an application for interim relief is ancillary to a main action (cf para 5.93 et seq), the applicant seeking the interim measures must take part in the main action as one of the main parties.

5.74

In case of multiple applicants in the main action, the applicant in the interim relief proceedings must be entitled to bring such action. While the case law on the admissibility of an action for annulment does not require that, where there are multiple applicants, all of them demonstrate that they are entitled to bring such an action, insofar as at least one of them does satisfy the criteria, this principle does not apply in the context of proceedings for interim relief. More specifically, only a party who is entitled to bring the main action to which the application for interim measures relates can be permitted to establish urgency by submitting that he would personally suffer serious and irreparable damage if the interim relief sought were not granted.14

5.75

The applicant must establish an interest in obtaining the measures sought. It is settled case law that it is necessary to ascertain, when deciding whether to grant interim measures, whether the applicant, even in the case of a Member State,15 has established an interest in obtaining the measures requested.16 Therefore, for example, the party seeking suspension of the measure he has challenged must demonstrate that he has an interest in obtaining the relief sought, which presupposes that the suspension of the measure would in itself be liable to benefit the applicant directly.17 In the absence of any practical use to the applicant or if the relief sought could not have the effect of changing the applicant’s position, the application must be dismissed.18 Moreover, in principle, according to settled case law, an application to suspend enforcement is inconceivable against a negative decision, since the granting thereof cannot have the effect of changing the position of an applicant.19 The application for the suspension of the enforcement of such a negative decision is thus, as a rule, dismissed as inadmissible. An alternative conclusion could be reached only where the granting of such a suspension could be necessary for the adoption of one or more of the other interim measures requested, if the Court hearing the application for other interim measures held them admissible and well founded.20

5.76

The applicant must have an interest to act throughout the interim relief proceedings. Even if, in certain circumstances, the Courts have recognised that the withdrawal of the challenged EU act does not necessarily cause the loss of the legal interest in bringing an action for annulment against that act (cf paras 3.71 and 3.117), this case law cannot be applied in the context of an

5.77

14 Order of 4 December 2007 in Case T-326/07 R Cheminova and Others v Commission [EU:T:2007:364] para 51. 15 See, eg Order of 18 June 2007 in Case T-431/04 R Italy v Commission (vine varieties) [EU:T:2007:183] paras 26 and 33–34. 16 See, eg Order of 13 September 2019 in Case T-566/19 R Scandlines Danmark and Scandlines Deutschland v Commission [EU:T:2019:605] para 20; Order of 17 December 1996 in Case T-164/96 R Moccia Irme v Commission [EU:T:1996:205] para 26 and the case law cited. 17 To that effect, see Order of 7 May 2002 in Case T-306/01 R Aden and Others v Council and Commission [EU:T:2002:113] para 57; Order of 12 May 2006 in Case T-42/06 R Gollnisch v Parliament [EU:T:2006:126] para 28; Case T-310/00 MCI v Commission [EU:T:2004:275] para 44 and the case law cited. See also Order of 2 December 2011 in Case T-176/11 R Carbunión v Council [EU:T:2011:710] para 18. 18 See, eg Order of 23 January 2012 in Case T-607/11 R Henkel and Henkel France v Commission [EU:T:2012:22] para 19. 19 See, eg Order of 31 July 1989 in Case C-206/89 R S. v Commission [EU:C:1989:333] para 14; Order of 30 April 1997 in Case C-89/97 P(R) Moccia Irme v Commission [EU:C:1997:226] para 45. 20 Order of 17 September 2015 in Case C-386/15 P(R) Alcogroup and Alcodis v Commission [EU:C:2015:623] para 38.

574 Interim Measures application for interim measures against a withdrawn act. Indeed, the risk of suffering an alleged harm must derive from the contested act and thus necessarily disappears with its withdrawal.21

5.2.2.2. Defendants 5.78

The defendant in the main proceedings should be the author of the act whose suspension is sought in the interim relief proceedings. According to the wording of Article 160(1) of the CJ RoP and Article 156(1) of the Rules of Procedure of the General Court (GC RoP), the act whose suspension is sought must be the same, in principle, as the one challenged in the main action.22 However, even allowing that it lies within the jurisdiction of a Judge hearing an application for interim measures to order the suspension of operation of an act other than the act challenged in the main action,23 it is nonetheless apparent from the very essence of proceedings for interim measures that such jurisdiction may not as a matter of principle be exercised unless both acts in question emanate from the same institution or body, and that the latter is a party to the proceedings.24 Therefore, the opponent in the main action should be the defendant in the interim relief proceedings, as the author of the act for which a suspension is sought.

5.2.2.3. Third Parties to the Main Proceedings 5.79

A third party to the main proceedings may be targeted by the interim relief order. Pursuant to Article 279 TFEU, the Judge hearing the application for interim relief may prescribe ‘any necessary interim measures’. In Aer Lingus Group,25 it was considered that such broad wording is obviously intended to grant sufficient powers to the interim relief Judge to prescribe any measure which he deems necessary to guarantee the full effectiveness of the definitive future decision, in order to ensure that there is no lacuna in the legal protection provided by the EU Courts. Consequently, it was concluded that, provided that the case would show strong fumus boni juris and imminence of serious and irreparable harm, it cannot be excluded that the interim relief Judge may impose orders directly on third parties, if necessary.26 However, such broad discretion should, in this respect, be exercised with due regard to the procedural rights, and in particular the right to be heard, of the addressees of interim measures and of parties directly affected by the interim measures. Nevertheless, even where a third party has not had an opportunity to be heard in the context of proceedings for interim measures, it cannot be excluded that interim measures might be imposed on it, in exceptional circumstances and bearing in mind the temporary nature of interim measures, if it appears that without such measures the applicant would be exposed to a situation liable to endanger its very existence. An illustration of such outcome can be found in United Kingdom v Parliament (1986 budget), where the Commission was ordered to implement

21 Order of 23 January 2018 in Case T-812/17 R Seco Belgium and Vinçotte v Parliament [EU:T:2018:25] para 18. 22 See, eg Order of 8 June 2009 in Case T-149/09 R Dover v Parliament [EU:T:2009:179] para 17; Order of 2 July 2004 in Case T-422/03 R II Enviro Tech Europe and Enviro Tech International v Commission [EU:T:2004:202] para 56, confirmed on appeal by Order of 15 October 2004 in Case C-350/04 P(R) Enviro Tech Europe and Enviro Tech International [EU:C:2004:637] para 19. 23 See Order of 8 April 1965 in Case C-18/65 R Gutmann v Commission [EU:C:1965:41] p. 135. 24 See Order of 17 July 2008 in Case C-277/07 P(R) Makhteshim-Agan Holding and Others v Commission [EU:C:2008:430] para 27; Order of 25 June 1987 in Case C-133/87 R Nashua Corporation v Commission [EU:C:1987:315] para 7. 25 Order of 18 March 2008 in Case T-411/07 R Aer Lingus Group v Commission [EU:T:2008:80] para 56. See also Order of 17 July 2001 in Case C-180/01 P-R Commission v NALOO [EU:C:2001:423] para 52 and the case law cited. 26 In that regard, see Order of 19 May 2011 in Case T-218/11 R Dagher v Council [EU:T:2011:231] para 7.

The Parties to the Interim Relief Proceedings 575 the budget for the financial year concerned as regards certain types of payments on the basis of a draft budget, the general budget as adopted being subject to the action for annulment in the main proceedings.27

5.2.2.4. Interveners An intervener must show sufficient interest to intervene in the interim relief proceedings. As a general rule, as to interventions in the main proceedings, non-privileged applicants to intervene must show a direct and existing interest in the result of the case to be admitted as interveners (cf para 5.245 et seq). Such interest must be related to the forms of order sought by one of the main parties,28 thus it is necessary to determine, in particular, that the prospective intervener is directly affected by the contested measure.29 When the application for leave to intervene is made in proceedings for interim measures, the interest in the result of the case must be understood as being an interest in the result of the interim proceedings. Just like the result of the main proceedings, the outcome of the interim proceedings may adversely affect the interests of third parties wishing to intervene or be favourable to them. It follows that, in interim proceedings, the interests of the party seeking leave to intervene must be appraised in the light of the consequences which the grant of the interim relief sought, or its rejection, may have on that party’s economic or legal position30 (cf para 5.245).

5.80

An intervener in the main action has standing to intervene in the interim relief proceedings. Once granted leave to intervene in the main action, the intervener is automatically recognised as having an interest to intervene in the interim relief proceedings.31

5.81

Intervention may be limited to the interim relief proceedings. Despite the ancillary nature of the interim proceedings, it is not necessary to be granted leave to intervene in the main action to be able to request leave to intervene in the interim relief proceedings. However, the fact that no notice of an application for interim measures is published in the Official Journal (cf para 5.262) may render such intervention difficult, especially with regard to the swiftness with which such applications are adjudicated. The appraisal by the interim relief Judge of the interest in the result of the case cannot affect the appraisal by the EU Courts when dealing with an application for leave to intervene in the main proceedings.32

5.82

The intervener’s interest in the result of the case and the balancing of interests regarding the grant of interim measures. As was held in Microsoft, the direct and existing interest in the result of the case, relied on by the applicant to intervene to show his standing to intervene, is, where appropriate, taken into account in the balancing of interests (cf Subsection 5.2.5.3. Balance of Interests) with regard to the granting of interim measures.33 Therefore, the notion of an interest

5.83

27 Order of 17 March 1986 in Case C-23/86 R United Kingdom v Parliament (1986 budget) [EU:C:1986:125]. 28 Order of 17 June 1997 in Joined Cases C-151/97 P(I) and C-157/97 P(I) National Power and PowerGen v British Coal and Commission [EU:C:1997:307] paras 51–53; Order of 6 March 2003 in Case C-186/02 P Ramondin and Ramondin Cápsulas v Commission [EU:C:2003:141] para 7. 29 Order of 10 July 2000 in Case T-54/00 R Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council [EU:T:2000:183] para 15 and the case law cited. 30 Order of 2 March 2011 in Case T-392/09 R 1. garantovaná v Commission (calcium carbide cartel) [EU:T:2011:63] para 12; Order of 26 July 2004 in Case T-201/04 R Microsoft v Commission [EU:T:2004:246] para 33. 31 Order of 17 February 2011 in Case T-520/10 R Comunidad Autónoma de Galicia v Commission [EU:T:2011:56] para 26. 32 Order of 26 July 2004 in Case T-201/04 R Microsoft v Commission [EU:T:2004:246] para 35. 33 Order of 18 November 1999 in Case C-329/99 P(R) Pfizer Animal Health v Council [EU:C:1999:572] para 96.

576 Interim Measures in the result of a case (for the purposes of intervention) should be given a broad interpretation in order to ensure that the appraisal of the various interests at issue (assessed for the purposes of interim measures) is not prejudiced.34 This approach may lead the Judge hearing the application for interim measures to invite an applicant to intervene to attend the hearing in order to put forward his arguments concerning the balancing of the interests, without prejudice to the final decision on the grant of leave to intervene.35 5.84

Right of an intervener to submit observations in the interim relief proceedings. Once granted leave to intervene in the interim relief proceedings, an intervener should submit his observations in support of the submissions of the party for which it sought to intervene, in compliance with Article 40 of the Statute (cf para 5.292).

5.85

Can the intervener in the main proceedings apply for interim measures? Pursuant to Article 160(1) of the CJ RoP and Article 156(1) of the GC RoP, an application to suspend the operation of any measure adopted by an institution or body (Article 278 TFEU) is admissible only if the applicant for suspension has challenged that measure in an action before the EU Courts. It appears that an intervener in the main action supporting an annulment claim would satisfy that condition. However, it could be objected that such interpretation would be in conflict with Article 40 of the Statute, which limits an application to intervene to supporting the form of order sought by one of the parties (cf para 5.292). As to other interim measures referred to in Article 279 TFEU, the GC RoP of 2015 has been specifically amended to exclude the possibility for the intervener to request the adoption of one of these other interim measures. Indeed, under Article 156(2) of the GC RoP, only the main parties are entitled to apply for such other interim measures. Since no similar rule exists in the CJ RoP, it is submitted that, before the Court of Justice, the rights of an intervener also extend to requesting interim measures other than suspension.

5.2.3. Time Limits and Formal Requirements 5.86

No time limit to file an application for interim relief as long as the main action is pending. No time limit is set to file an application for suspension or other interim measures, provided that the main proceedings have been brought36 and are still pending.37 As was held in one of the earliest orders on interim measures, In principle, it is for an applicant to decide whether it is appropriate to lodge a request for a stay of execution, and to decide at what stage of the procedure to lodge it. However, there are obvious objections to granting such a request when it is lodged after the written procedure has come to an end and after the oral procedure on the substance, at a time when the Court has already commenced its deliberations on the judgment on the substance.38

34 Order of 26 July 2004 in Case T-201/04 R Microsoft v Commission [EU:T:2004:246] para 34. 35 See, eg Order of 21 July 2017 in Case T-130/17 R Polskie Górnictwo Naftowe i Gazownictwo v Commission [EU:T:2017:541] paras 20–21 and 61; Order of 21 July 2017 in Case T-849/16 R PGNiG Supply & Trading v Commission [EU:T:2017:544] paras 22–23 and 56. 36 cf para 5.88. 37 See, eg Order of 27 October 2011 in Case C-605/10 P(R) Inuit Tapiriit Kanatami and Others v Council and Parliament [EU:C:2011:710] (no need to adjudicate on an appeal against an order rejecting the application for interim measures since the main action was dismissed as inadmissible). 38 Order of 11 April 1960 in Joined Cases C-3/58 R to C-16/58 R, C-18/58 R, C-25/58 R and C-26/58 R Barbara Erzbergbau and Others v High Authority [EU:C:1960:16] pp. 223–224.

Time Limits and Formal Requirements 577 No time limit to adjudicate upon an application for interim relief. No time limit is set for the Courts to decide on an application for suspension or other interim measures. Depending on the complexity of the case, the degree of urgency and the prior adoption of a suspension order inaudita altera parte on the basis of Article 160(7) of the CJ RoP or Article 157(2) of the GC RoP (cf para 5.96 et seq), the duration of an interim relief proceedings may take a few days39 to a few months40 from the day of the filing.

5.87

The application for interim measures must be made by a separate document. Pursuant to Article 160(4) of the CJ RoP and Article 156(5) of the GC RoP, the application for interim measures must be made by a separate document. The failure to comply with this requirement will automatically lead to the inadmissibility of the application.41 The purpose underlying this requirement resides in the need to identify immediately a request for interim measures, which is by definition urgent, without examining in detail the content of the action in the main proceedings. Furthermore, an application for interim relief must comply with the conditions set out for the content and the annexes of an application filed in direct actions and its methods of service (cf Chapter 4.1. Common Rules on Procedure and Section 4.2.2. Application in Chapter 4.2. Procedure in Direct Actions). Before the General Court, an application for interim measures should not, in principle, exceed a maximum of 25 pages.42 The application for interim measures obtains a case number that corresponds to that of the main case in which interim relief is sought. Only the letter ‘R’ is added, which stands for ‘référé’ (‘interim measures’ in French). Before the Court of Justice, the case number obtains a P(R) suffix if it is an appeal brought against the interim order of the General Court (cf Subsection 5.2.7.1), and a P-R suffix if it is an application for interim relief filed within the appeal proceedings brought against the judgment of the General Court delivered in the main action (cf para 5.2.7.2).

5.88

Content of the application for interim measures. According to Article 160(3) of the CJ RoP and Article 156(4) of the GC RoP, an application for interim measures shall state (with the utmost concision)43 the subject matter of the proceedings, the circumstances giving rise to urgency,44 and the pleas of fact and law establishing a prima facie case for the interim measure applied for.45 It shall contain all the evidence and offers of evidence available to justify the grant of interim measures.46 Non-compliance with these requirements may be raised by the Judge hearing the

5.89

39 See, eg Order of 1 July 2019 in Case T-388/19 R Puigdemont i Casamajó and Comín i Oliveres v Parliament [EU:T:2019:467] (4 days) (set aside on appeal by Order of 20 December 2019 in Case C-646/19 P(R) Puigdemont i Casamajó and Comín i Oliveres v Parliament [EU:C:2019:1149]. 40 However, see, eg Order of 15 December 2009 in Case C-391/08 P(R) Dow AgroSciences and Others v Commission [EU:C:2009:785] (15 months). 41 See, eg Order of 22 November 2018 in Joined Cases C-334/18 P(R) and C-334/18 P(R)–R Hércules Club de Fútbol v Commission [EU:C:2018:952] paras 22–23; Case T-187/11 Trabelsi and Others v Council [EU:T:2013:273] paras 43 and 45; Order of 23 March 2017 in Case T-624/16 Gollnisch v Parliament [EU:T:2017:243] paras 43 and 45; Case T-633/16 Bilde v Parliament [EU:T:2017:849] para 38; Case T-634/16 Montel v Parliament [EU:T:2017:848] para 42; Case T-630/16 Dehtochema Bitumat v ECHA [EU:T:2018:1] paras 22–24. 42 GC PR, para 227. 43 GC PR, para 225. 44 For an example of failure to comply with this condition, see Order of 25 October 2010 in Case T-353/10 R Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission [EU:T:2010:449] paras 15–18. 45 For examples of failure to comply with this condition, see Order of 29 July 2010 in Case T-252/10 R Cross Czech v Commission [EU:T:2010:323] paras 12–16; Order of 30 June 2010 in Case T-61/10 R Victoria Sánchez v Parliament and Commission [EU:T:2010:265] paras 16–18. However, the application for interim relief should not reproduce the entire content of the main application (GC PR, para 226). 46 See also cf para 5.105 et seq (Standard of proof).

578 Interim Measures application for interim relief of his own motion and may result in the inadmissibility of the application.47 5.90

Vagueness of a head of claim makes it inadmissible. An unspecific head of claim, in which an applicant requests an order for any other or additional measure considered necessary or appropriate, will be dismissed as inadmissible. Under settled case law, asking the Judge h earing the application for interim measures to adopt any other interim relief measures, without s pecifying in what those measures might consist, amounts to asking the Judge himself to draw up the form of order which he is subsequently supposed to assess.48

5.2.4. Procedure 5.2.4.1. Competence 5.91

Court of Justice: the Vice-President decides on interim measures, as a rule. As of 1 November 2012, the competence to hear applications for interim relief no longer lies with the President of the Court of Justice, but with the Vice-President of that Court.49 However, there are two exceptions. First, the Vice-President may refer the application for interim measures immediately to the Court.50 The Court may then decide in Chambers of three or five Judges, in the Grand Chamber51 or even in full Court.52 Secondly, if the Vice-President is prevented from acting, the competence belongs to one of the Presidents of the Chambers of five Judges or, failing that, one of the Presidents of the Chambers of three Judges or, failing that, one of the other Judges, according to the order of seniority.53

5.92

General Court: the President decides on interim measures, as a rule. At the General Court, the competence to hear applications for interim relief is vested in the President of that Court.54 In the event that the President of the General Court is prevented from acting, the competence is transferred to the Vice-President of that Court.55 When the latter is also prevented from acting, the functions of President shall be exercised by a President of a Chamber or, failing that, by one of the other Judges, according to the order of seniority.56

5.2.4.2. Ancillary Nature of the Interim Relief Procedure and Admissibility 5.93

Connection with the main action. No application for interim measures can be filed prior to or without the introduction of a main action. Pursuant to Article 160(1) CJ RoP and Article 156(1) 47 See, eg Order of 30 June 2010 in Case T-61/10 R Victoria Sánchez v Parliament and Commission [EU:T:2010:265] para 12. 48 Order of 4 May 2018 in Case T-230/18 R Czarnecki v Parliament [EU:T:2018:262] para 23. See also Order of 13 December 2004 in Case C-381/04 P(R) Sumitomo Chemical v Commission [EU:C:2004:796] para 20. 49 Decision of the Court of Justice of 23 October 2012 concerning the judicial functions of the Vice-President of the Court (2012/671/EU) (OJ 2012 L 300, p. 47). In that regard, see CJ RoP, Art 10(3). 50 CJ RoP, Art 161(1). 51 See, eg Order of 17 December 2018 in Case C-619/18 R Commission v Poland (independence of the Supreme Court) [EU:C:2018:1021] para 5. 52 CJ RoP, Art 60. 53 CJ RoP, Arts 7 and 13. See, eg Order of 13 June 2018 in Case C-315/18 P(R)–R Valencia Club de Fútbol v Commission [EU:C:2018:443]. 54 GC RoP, Art 157. 55 GC RoP, Arts 11 and 157(4); see, eg Order of 15 February 2019 in Case T-524/16 R Aresu v Commission [EU:T:2019:99]. 56 GC RoP, Arts 8 and 12.

Procedure 579 GC RoP, an application to suspend the operation of any measure adopted by an institution or body (Article 278 TFEU) is admissible only if the applicant has challenged that measure in an action before the relevant Court. An application for the adoption of one of the other interim measures (Article 279 TFEU) is only admissible if it has been made by a party (before the Court of Justice) or by a main party (before the General Court) to a case before the relevant Court and relates to that case.57 Admissibility of the main action. While the admissibility of the main action should not, in principle, be examined in the context of proceedings for interim relief, it may nevertheless be necessary, in order for an application to suspend the operation of a measure to be declared admissible, for the applicant to prove certain matters allowing the conclusion that the main action to which his application for interim relief relates is admissible. This is to prevent the applicant from obtaining, by way of proceedings for interim relief, the suspension of operation of a measure which the Courts may subsequently refuse to annul by reason of the inadmissibility of the applicant’s main action58 (cf para 5.75). Such examination of the main action’s admissibility is necessarily summary because the proceedings for interim relief are by nature urgent, and the question of admissibility can be considered only on the basis of the facts adduced by the applicant.59 It may be sufficient to establish that admissibility of the main action is not prima facie excluded. Therefore, the application for interim relief is only inadmissible on this account if the admissibility of the main action can be totally excluded.60 (cf para 5.143).

5.94

Admissibility issues regarding the extent of the interim measures sought. First, when the relief sought is a suspension based on Article 278 of the TFEU, the act concerned must be, in principle, the one that is challenged in the main proceedings (cf para 5.78). Secondly, when the relief sought is any other interim measure based on Article 279 of the TFEU, the measure must ‘relate to’ the main proceedings.61 ‘Relate to’ has been interpreted as imposing a sufficiently close link between the requested measure and the subject matter of the main action.62 Such an approach is justified on the ground that the purpose of interlocutory proceedings is to ensure the full effectiveness of the final decision to be given in the main proceedings to which the interlocutory proceedings are an adjunct.63 It follows from this ancillary nature64 that the interim relief Judge cannot adopt interim measures falling outside the scope of the final decision which the Court may reach on the main action65 and that, in order for an application under Article 279 TFEU to be admissible,

5.95

57 CJ RoP, Art 160(2); GC RoP, Art 156(2). 58 See, eg Order of 18 November 1999 in Case C-329/99 P(R) Pfizer Animal Health v Council [EU:C:1999:572] para 89; Order of 4 December 2007 in Case T-326/07 R Cheminova and Others v Commission [EU:T:2007:364] para 43 and the case law cited. 59 See, eg Order of 12 October 2000 in Case C-300/00 P(R) Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council [EU:C:2000:567] para 35. 60 See, eg Order of 23 October 2019 in Case T-383/19 R Walker and Others v Parliament and Council [EU:T:2019:754] para 21; Order of 20 July 2016 in Case T-251/16 R Directeur général de l’OLAF v Commission [EU:T:2016:424] para 32; Order of 17 July 2013 in Case T-336/13 R Borghezio v Parliament [EU:T:2013:385] para 25; Order of 4 December 2007 in Case T-326/07 R Cheminova and Others v Commission [EU:T:2007:364] para 45; Order of 19 December 2001 in Joined Cases T-195/01 R and T-207/01 R Government of Gibraltar v Commission [EU:T:2001:291] para 47. 61 CJ RoP, Article 160(1); GC RoP 156(1). 62 See Order of 2 July 2004 in Case T-78/04 R Sumitomo Chemical v Commission [EU:T:2004:204] para 43. For an example where the link was considered not sufficiently close, see Order of 7 April 2000 in Case T-11/00 R Hautem v EIB [EU:T:2000:103]. 63 See Order of 21 February 2002 in Joined Cases C-486/01 P-R and C-488/01 P-R Front national and Martinez v Parliament [EU:C:2002:116] para 87; Order of 27 September 2004 in Case C-7/04 P(R) Commission v Akzo and Akcros [EU:C:2004:566] para 36. 64 Order of 12 February 1996 in Case T-228/95 R Lehrfreund v Council and Commission [EU:T:1996:16] para 61. 65 See, eg Order of 8 January 2014 in Case T-505/13 R Stichting Sona and Nao v Commission [EU:T:2014:1] paras 40–43.

580 Interim Measures there must be a sufficiently close connection between the interim measures sought, on the one hand, and the claims and subject matter of the main proceedings, on the other.66 Thirdly, the interim measures requested cannot result in an outcome where the Judge hearing such applications would prejudge the decision to be given in the main proceedings.67 This is particularly true in the case of measures that could give rise to irreversible effects. Recourse to such measures must be restricted and should be confined to situations where the prima facie case appears particularly strong and the urgency of the measures sought is undeniable. Nonetheless, such an assessment must be made in the light of the circumstances of each case.68 As regards more particularly the condition that the legal situation created by an interim relief order must be reversible, it should be recalled that the decision made by the Judge hearing an application for interim measures is by its nature interim in the sense that it must neither prejudge the future decision on the substance of the main case nor render it illusory by depriving it of effectiveness.69 If the interest defended by a party to interim relief proceedings would entail the latter consequences, it does not merit protection.70 Fourthly, an application for interim measures is inadmissible if granting it would amount to an injunction to draw precise inferences from the forthcoming annulment judgment and such an injunction would exceed the Court’s powers in the main action.71 However, in relation to interim measures, the interim relief Judge has powers whose impact vis-à-vis the institutions or bodies of the EU goes beyond the effects attaching to a judgment annulling an act,72 provided that those interim measures apply only for the duration of the main proceedings, do not prejudge the decision on the main action and do not undermine the practical effect of that decision.73 Fifthly, the request must be compatible with the system of remedies of which the interim proceedings form part.74

5.2.4.3. Interim Measures Adopted Inaudita Altera Parte 5.96

Interim measures may be granted before the submission of the opposite party’s observations. Pursuant to Article 160(7) of the CJ RoP and Article 157(2) of the GC RoP, an order granting, entirely or partially, the requested measures may be adopted even before the observations of the opposite party have been submitted (inaudita altera parte). Orders adopted under this procedure are provisional in the sense that they can be varied or cancelled even without any application made by any party and a different decision can be taken in the final order on interim measures, which is issued after hearing the parties (cf para 5.100). The Practice Rules of the General Court (GC PR) specify that, in order to facilitate immediate processing by the Registry, the application 66 See Order of 7 May 1991 in Case C-313/90 R CIRFS and Others v Commission [EU:C:1991:220] paras 23–24; Order of 17 December 2009 in Case T-396/09 R Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission [EU:T:2009:526] paras 38–39 and the case law cited; Order of 27 November 2013 in Case T-483/13 R Oikonomopoulos v Commission [EU:T:2013:614] para 20. 67 Order of 18 March 2016 in Case T-87/16 R Eurofast v Commission [EU:T:2016:172] para 24. 68 Order of 18 March 2016 in Case T-87/16 R Eurofast v Commission [EU:T:2016:172] para 25. See also Order of 14 July 2011 in Case T-187/11 R Trabelsi and Others v Council [EU:T:2011:384] para 51 and the case law cited; Order of 29 January 1997 in Case C-393/96 P(R) Antonissen v Council and Commission [EU:C:1997:42] para 41. 69 Order of 12 December 1995 in Case T-203/95 R Connolly v Commission [EU:T:1995:208] para 16. 70 Order of 29 November 2012 in Case T-164/12 R Alstom v Commission [EU:T:2012:637] para 31. 71 Order of 16 January 2004 in Case T-369/03 R Arizona Chemical and Others v Commission [EU:T:2004:9] para 67. 72 See Order of 5 August 1983 in Case C-118/83 R CMC v Commission [EU:C:1983:225] para 53; Order of 19 February 1993 in Joined Cases T-7/93 R and T-9/93 R Langnese-Igo and Schöller v Commission [EU:T:1993:13] operative part; Order of 8 January 2014 in Case T-505/13 R Stichting Sona and Nao v Commission [EU:T:2014:1] para 49. 73 Order of 15 May 2013 in Case T-198/12 R Germany v Commission (safety of toys) [EU:T:2013:245] para 33. See also Order of 8 January 2014 in Case T-505/13 R Stichting Sona and Nao v Commission [EU:T:2014:1] paras 44–45. 74 Order of 12 February 1996 in Case T-228/95 R Lehrfreund v Council and Commission [EU:T:1996:16] paras 60–61.

Procedure 581 for suspension of operation or enforcement or other interim measures must state on the first page that it contains an application for interim measures to be adopted inaudita altera parte.75 Practice at the Court of Justice. According to the case law, in particular where it is desirable in the interests of the proper administration of justice that the interlocutory proceedings are not deprived of their substance and their effect, Article 160(7) of the CJ RoP permits the Judge hearing an application for interim measures to adopt such measures inaudita altera parte, as a precautionary measure, until either an order has been made terminating these interlocutory proceedings or until the main proceedings are terminated, if this should take place first.76 When assessing the need for such an order, the interim relief Judge must examine the circumstances of the specific case at hand.77

5.97

Practice at the General Court. Unlike in the case of the Court of Justice, the interim measures orders of the General Court adopted inaudita altera parte on the basis of Article 157(2) of the GC RoP are generally not reported on the Curia website, meaning that their reasoning may not be easily available.78 However, the considerations leading the interim relief Judge at the General Court to adopt such an order are similar to those relied on at the Court of Justice. Indeed, it is settled case law that Article 157(2) GC RoP allows the Judge to adopt provisional interim measures as a precautionary measure, until an order has been made terminating these interlocutory proceedings, either where it is necessary to enable him to have enough time to be sufficiently informed so as to be in a position to judge a complex factual and/or legal situation raised by the application for interim measures, or where it is desirable in the interests of the proper administration of justice that the interlocutory proceedings are not deprived of their substance and their effect.79 When assessing the need for such a provisional order, the Judge hearing the application for interim relief must examine the circumstances of the specific case at hand.80

5.98

The order adopted inaudita altera parte may be varied or cancelled. Further, an order adopted inaudita altera parte on the basis of Article 160(7) of the CJ RoP or Article 157(2) of the GC RoP may be varied or cancelled81 even without any application being made by any party. If that order remains in force throughout the entire interim procedure, the order closing the interim measures proceedings will cancel it.82

5.99

75 GC PR, para 224. 76 Order of 11 March 2016 in Case C-134/16 P(R)-R Chemtura Netherlands v EFSA [EU:C:2016:164] para 4; Order of 4 October 2017 in Case C-576/17 P(R)-R Wall Street Systems UK v ECB [EU:C:2017:735] para 4; Order of 2 February 2018 in Case C-65/18 P(R)-R Nexans France and Nexans v Commission [EU:C:2018:62] para 4; Order of 13 June 2018 in Case C-315/18 P(R)-R Valencia Club de Fútbol v Commission [EU:C:2018:443] para 4; Order of 19 October 2018 in Case C-619/18 R Commission v Poland (independence of the Supreme Court) [EU:C:2018:852] para 13; Order of 16 January 2019 in Case C-1/19 P(R)-R JPMorgan Chase and Others v Commission [EU:C:2019:41] para 4; Order of 7 March 2019 in Case C-163/19 P(R)-R Trifolio-M and Others v EFSA [EU:C:2019:187] para 4. 77 Order of 11 March 2016 in Case C-134/16 P(R)-R Chemtura Netherlands v EFSA [EU:C:2016:164] para 5; Order of 4 October 2017 in Case C-576/17 P(R)-R Wall Street Systems UK v ECB [EU:C:2017:735] para 5; Order of 2 February 2018 in Case C-65/18 P(R)-R Nexans France and Nexans v Commission [EU:C:2018:62] para 5; Order of 13 June 2018 in Case C-315/18 P(R)-R Valencia Club de Fútbol v Commission [EU:C:2018:443] para 5; Order of 19 October 2018 in Case C-619/18 R Commission v Poland (independence of the Supreme Court) [EU:C:2018:852] para 14; Order of 16 January 2019 in Case C-1/19 P(R)-R JPMorgan Chase and Others v Commission [EU:C:2019:41] para 4. 78 See, eg the reference to such an unreported order in Order of 5 February 2019 in Case T-675/18 Trifolio-M and Others v EFSA [EU:T:2019:64] para 20. 79 Order of 18 September 1986 in Case C-221/86 R Group of the European Right v Parliament [EU:C:1986:327] para 9; Order of 10 August 2001 in Case T-184/01 R IMS Health v Commission [EU:T:2001:200] para 20. 80 See Order of 3 July 1984 in Case C-141/84 R De Compte v Parliament [EU:C:1984:237] para 4. 81 See, eg Order of 10 April 2014 in Case T-199/14 R Vanbreda Risk & Benefits v Commission [not reported] para 7; Order of 17 December 2013 in Case T-505/13 R Stichting Sona and Nao v Commission [not reported] para 5. 82 Order of 5 February 2019 in Case T-675/18 Trifolio-M and Others v EFSA [EU:T:2019:64] point 2 of the operative part.

582 Interim Measures 5.100

The inaudita altera parte order and the order closing the interim proceedings. The provisional suspension or interim measures obtained inaudita altera parte do not mean that the order closing the interim proceedings will be in favour of the applicant. In CLL Centres de langues v Commission, four days after the filing of the application for interim relief, the President of the General Court ordered the suspension of the contested decision and the immediate communication of a document to the applicant by the Commission as provisional interim measures.83 Upon further examination, the application for suspension was finally rejected in the order closing the interim proceedings.84 Similarly, in PGNiG Supply and Trading v Commission, the President of the General Court first granted the stay of execution sought until delivery of the order closing the interim proceedings.85 However, in the latter order, he finally rejected the application for suspension due to lack of urgency.86 In Valencia Club de Fútbol v Commission, the applicant asked for the suspension of the contested decision, in which the Commission found that Spain had granted unlawful State aid to Fundación Valencia Club de Fútbol and ordered the recovery of that aid. The application for suspension had initially been granted,87 but was ultimately rejected after further examination by the President of the General Court.88 On appeal, the Court of Justice acted the same way in first ordering the suspension,89 but then cancelling it upon rejection of the appeal.90 A similar solution was adopted in Chemtura Netherlands v EFSA.91

5.2.4.4. Observations by the Parties 5.101

Time limit to submit observations. While the inaudita altera parte order (cf para 5.96) may be adopted without hearing the other party, the order closing the interim proceedings (cf para 5.142) may, in principle, only be issued after both parties are heard. Therefore, once the application for interim relief is filed (cf para 5.88), it is served on the opposite party for observations. The interim relief Judge shall prescribe a short time limit within which that party may submit written or oral observations,92 which, in principle, amounts to one or two weeks.

5.102

No second exchange of pleadings. Unless specifically requested by the interim relief Judge, no reply and rejoinder can be filed in the interim relief proceedings. Occasionally parties ask for permission to submit supplementary observations, the filing of which will depend entirely on the interim relief Judge’s discretion. No error in law can be found on the ground that the production of no further information on the case was ordered or that a document submitted by a party without first being requested by the Judge was not added to the file.93 However, if the submission of a new document by a party is accepted, the observations of the opposite parties must be sought.94 83 Order of 9 June 2008 in Case T-202/08 R CLL Centres de langues v Commission [not reported] (see Order of 15 July 2008 in Case T-202/08 R CLL Centres de langues v Commission [EU:T:2008:293] para 12). 84 Order of 15 July 2008 in Case T-202/08 R CLL Centres de langues v Commission [EU:T:2008:293]. 85 Order of 23 December 2016 in Case T-849/16 R PGNiG Supply and Trading v Commission [not reported] [EU:T:2017:544]. 86 Order of 21 July 2017 in Case T-849/16 R PGNiG Supply and Trading v Commission [EU:T:2017:544]. 87 Order of 10 November 2016 in Case T-732/16 R Valencia Club de Fútbol v Commission [not reported] para 19. 88 Order of 22 March 2018 in Case T-732/16 R Valencia Club de Fútbol v Commission [EU:T:2018:171]. 89 Order of 13 June 2018 in Case C-315/18 P(R)-R Valencia Club de Fútbol v Commission [EU:C:2018:443]. 90 Order of 22 November 2018 in Case C-315/18 P(R) Valencia Club de Fútbol v Commission [EU:C:2018:951]. 91 As the first instance proceedings, see first Order of 15 December 2015 in Case T-725/15 R Chemtura Netherlands v EFSA [not reported]; second Order of 29 February 2016 in Case T-725/15 R Chemtura Netherlands v EFSA [EU:T:2016:128]. As to the appeal proceedings, see first Order of 11 March 2016 in Case C-134/16 P(R)-R Chemtura Netherlands v EFSA [EU:C:2016:164]; second Order of 14 June 2016 in Case C-134/16 P(R) Chemtura Netherlands v EFSA [EU:C:2016:442]. 92 CJ RoP, Art 160(5); GC RoP, Art 157(1). 93 Order of 30 September 2003 in Case C-348/03 P(R) AIT v Commission [EU:C:2003:523] paras 23–24. 94 Order of 21 July 2017 in Case T-883/16 R Poland v Commission (OPAL pipeline) [EU:T:2017:542] paras 17 and 19.

Procedure 583 Measures of organisation of procedure and of inquiry. Pursuant to Article 160(6) of the CJ RoP, the President of the Court of Justice may order a preparatory inquiry. Similarly, Article 157(3) of GC RoP states that the President of the General Court shall prescribe, where appropriate, measures of organisation of procedure and measures of inquiry.95 Each case has its own specific circumstances and difficulties, and the interim relief Judge alone has jurisdiction to assess which measures of organisation of procedure he deems appropriate in order to rule on the application for interim measures.96 Therefore, when faced with a request by a party to adopt measures of inquiry or of organisation of procedure, the Judge may disregard97 or reject98 such a request, turn to the opposite party for observations,99 or grant the request. An illustration for the latter is Vanbreda Risk & Benefits v Commission,100 in which the Commission was ordered to provide documents, identified by the applicant, which were considered to be relevant by the Judge to his examination of the existence of a prima facie case (fumus boni juris). However, a party should be able to clearly distinguish between applying for interim measures and proposing to the relevant Court to adopt a particular measure of organisation of procedure or of inquiry (cf para 4.272). An application for interim measures will inevitably be dismissed as inadmissible when it seeks in fact the adoption of measures which, in principle, are by nature measures of organisation of procedure or of inquiry (at the discretion of the Courts)101 and not interim measures to be adopted in the context of interlocutory proceedings, since they seek not to prevent serious and irreparable harm pending a decision on the merits, but, rather, to provide the applicant with further evidence to show that his arguments are well founded102 (cf para 5.32).

5.103

Oral hearings are rarely held. In most cases, the interim relief Judge will not hold an oral hearing, considering that he has all the information necessary to rule on the case without there being any need to first hear the oral argument from the parties.103 The decision to rule without an oral hearing cannot, in principle, constitute a ground for appeal.104 Indeed, it is for the Judge hearing the application for interim measures to assess the need to hold a hearing and hear oral arguments from the parties.105 While the Judge enjoys broad discretion in that regard,106 the sensitivity of a case107

5.104

95 cf Section 4.2.7. Measures of Organisation of Procedure and of Inquiry. 96 See, eg Order of 19 July 2012 in Case C-110/12 P(R) Akhras v Council [EU:C:2012:507] para 59; Order of 20 April 2012 in Case C-507/11 P(R) Fapricela v Commission [EU:C:2012:231] para 51. 97 See, eg Order of 22 December 2004 in Case T-303/04 RII European Dynamics v Commission [EU:T:2004:373] paras 82–83. 98 See, eg Order of 21 July 2017 in Case T-883/16 R Poland v Commission (OPAL pipeline) [EU:T:2017:542] paras 49–52; Order of 25 February 2015 in Case T-812/14 R BPC Lux 2 and Others v Commission [EU:T:2015:119] para 16. 99 See, eg Order of 17 December 2013 in Case T-505/13 R Stichting Sona and Nao v Commission [not reported] para 4. 100 See, eg Order of 3 April 2014 in Case T-199/14 R Vanbreda Risk & Benefits v Commission [not reported] para 7. 101 CJ RoP, Arts 61, 62 and 64; GC RoP, Arts 89 and 91. 102 See, eg Order of 12 December 2019 in Case T-654/19 R FF v Commission [EU:T:2019:860] para 23; Order of 14 February 1990 in Case C-358/89 R Extramet Industrie v Council [EU:C:1990:75] para 26; Order of 3 March 1997 in Case T-6/97 R Comafrica and Dole Fresh Fruit Europe v Commission [EU:T:1997:24] para 27. 103 See, eg Order of 7 November 2019 in Case T-317/19 R AMVAC Netherlands v Commission [EU:T:2019:833] para 18; Order of 23 March 2017 in Case T-20/17 R Hungary v Commission (State aid in advertisement sector) [EU:T:2017:203] para 11. 104 See Order of 22 March 2018 in Case C-576/17 P(R) Wall Street Systems UK v ECB [EU:C:2018:208] para 37. In that case, the mere reference to the complexity of the case made by the appellant did not support the conclusion that the decision of the Vice-President of the General Court to rule without a hearing was vitiated by an error of law. 105 Order of 24 March 2009 in Case C-60/08 P(R) Cheminova and Others v Commission [EU:C:2009:181] para 81; Order of 14 December 2011 in Case C-446/10 P(R) Alcoa Trasformazioni v Commission [EU:C:2011:829] para 72. 106 Order of 14 December 2011 in Case C-446/10 P(R) Alcoa Trasformazioni v Commission [EU:C:2011:829] paras 71–72. 107 Order of 20 November 2017 in Case C-441/17 R Commission v Poland (Białowieża forest) [EU:C:2017:877] para 6; Order of 17 December 2018 in Case C-619/18 R Commission v Poland (independence of the Supreme Court) [EU:C:2018:1021] para 8; Order of 20 July 2018 in Case C-238/18 R BCE v Latvia (President of the Central Bank) [EU:C:2018:581] para 27; Order of 4 December 2014 in Case T-199/14 R Vanbreda Risk & Benefits v Commission [EU:T:2014:1024] para 12.

584 Interim Measures or the need to clarify complex situations108 may sometimes lead him to arrange for a hearing. In such a situation, the Judge can limit the scope of the oral argument to the points on which he requires clarification.109

5.2.4.5. Standard of Proof 5.105

Principle. According to the second sentence of Article 156(4) of the GC RoP, an application for interim measures shall contain all the evidence and offers of evidence available to justify the grant of interim measures. This indication was added with the GC RoP of 2015 to take account of the order in Pannon Hőerőmű.110 This requirement has since been repeatedly reaffirmed,111 and failure to comply with it often leads to the rejection of a plea in law112 or of the entire application for interim measures.113 Although not specified in the CJ RoP, the Court of Justice has since confirmed that it applies the same requirement.114

5.106

High standard of proof. Under settled case law, an application for interim measures must, of itself, enable the defendant to prepare his observations and the Judge hearing the application to rule on it, if necessary, without any supporting information, since the essential elements of fact and law on which the application is based must be found in the actual text of that application.115 Moreover, in order to determine whether the purported harm is serious and irreparable and therefore justifies, by way of exception, the granting of the interim measures requested, the interim relief Judge must have precise information, supported by detailed documents showing the applicant’s financial situation, that enables him to determine with precision the effects which would probably arise if the measures sought were not granted.116 Accordingly, where appropriate, the applicant must produce information, supported by documents, capable of producing a true and complete picture of its financial situation.117 The information providing such a picture must be supported by detailed documents, certified by an external expert who is independent of the applicant, on the basis of which it is possible to assess the accuracy of that information.118 108 Order of 21 July 2017 in Case T-130/17 R Polskie Górnictwo Naftowe i Gazownictwo v Commission [EU:T:2017:541] para 19; Order of 21 July 2017 in Case T-883/16 R Poland v Commission (OPAL pipeline) [EU:T:2017:542] para 19; Order of 21 July 2017 in Case T-849/16 R PGNiG Supply & Trading v Commission [EU:T:2017:544] para 21; Order of 28 November 2013 in Case C-389/13 P(R) EMA v AbbVie [EU:C:2013:794] para 25; Order of 28 November 2013 in Case C-390/13 P(R) EMA v InterMune UK and Others [EU:C:2013:795] para 27; Order of 7 March 2013 in Case C-551/12 P(R) EDF v Commission [EU:C:2013:157] para 15. 109 See, eg Order of 21 July 2017 in Case T-130/17 R Polskie Górnictwo Naftowe i Gazownictwo v Commission [EU:T:2017:541] para 19; Order of 21 July 2017 in Case T-883/16 R Poland v Commission (OPAL pipeline) [EU:T:2017:542] para 19; Order of 21 July 2017 in Case T-849/16 R PGNiG Supply & Trading v Commission [EU:T:2017:544] para 21. 110 Order of 23 January 2009 in Case T-352/08 R Pannon Hőerőmű v Commission [EU:T:2009:15]. 111 See, eg Order of 22 June 2018 in Case T-476/17 R Arysta LifeScience Netherlands v Commission [EU:T:2018:407] para 26; Order of 7 November 2019 in Case T-317/19 R AMVAC Netherlands v Commission [EU:T:2019:833] para 23. 112 See, eg Order of 26 September 2019 in Case T-740/18 R Taminco v Commission [EU:T:2019:717] para 123. 113 See, eg Order of 26 May 2010 in Case T-15/10 R Noko Ngele v Commission [EU:T:2010:218]. 114 See, eg Order of 23 May 2019 in Case C-163/19 P(R) Trifolio-M and Others v EFSA [EU:C:2019:453] paras 55–58 and the case law cited; Order of 20 April 2012 in Case C-507/11 P(R) Fapricela v Commission [EU:C:2012:231] para 53; Order of 11 November 2011 in Case C-530/10 P(R) Nencini v Parliament [EU:C:2011:729] para 29. 115 See Order of 6 September 2016 in Case C-378/16 P-R Inclusion Alliance for Europe v Commission [EU:C:2016:668] para 17 and the case law cited. cf para 4.138 on case law related to the same requirement in the context of direct actions. 116 See, eg Order of 23 November 2018 in Case T-733/17 R GMPO v Commission [EU:T:2018:839] para 23 and the case law cited. 117 Order of 7 May 2010 in Case T-410/09 R Almamet v Commission [EU:T:2010:179] paras 32, 57 and 61, upheld on appeal by Order of 16 December 2010 in Case C-373/10 P(R) Almamet v Commission [EU:C:2010:792] para 24. 118 Orders of 15 January 2001 in Case T-241/00 R Le Canne v Commission [EU:T:2001:6] para 35; Order of 13 October 2006 in Case T-420/05 R II Vischim v Commission [EU:T:2006:304] para 83; Order of 15 March 2010 in Case T-435/09 R GL2006 Europe v Commission [EU:T:2010:88] para 34.

Substantive Requirements 585 Supplementary evidence may be adduced but it cannot compensate for the lack of essential information in the application. While the application for interim measures may be supplemented on specific points by references to documents annexed to it, those documents cannot compensate for the lack of essential information in that application. It is not for the interim relief Judge to seek, in the stead of the party concerned, those matters contained in the annexes to the application for interim measures, in the application lodged in the main proceedings or in the annexes thereto which could support the application for interim measures (cf para 4.190). Were such an obligation to be imposed on the interim relief Judge, it would, moreover, render ineffective Article 156(5) of the GC RoP, which requires the application for interim measures to be made by a separate document.119

5.107

5.2.5. Substantive Requirements Fumus boni juris, urgency, balance of interests in favour of interim measures. As to the substantive requirements for obtaining interim relief, Article 160(3) of the CJ RoP and Article 156(4) of the GC RoP establish two statutory conditions. First, fumus boni juris must be present. The party applying for interim measures must show that his main action is supported by pleas of fact and law establishing a prima facie case, ie that his submissions against the contested act appear, at first glance, well founded (cf Subsection 5.2.5.1. Fumus boni juris). Secondly, the applicant for interim measures must show urgency, ie that without the grant of interim measures he would suffer serious and irreparable harm (cf Subsection 5.2.5.2. Urgency). The EU Courts’ case law has added a third condition: where appropriate, the interim relief Judge must also weigh up the interests involved, and the interests in granting interim relief should outweigh those opposing it120 (cf Subsection 5.2.5.3. Balancing Interests).

5.108

The conditions are cumulative. These three conditions are cumulative, so that an application for interim measures must be dismissed if one of them is not met.121 It transpires from the case law that the interim relief Judge prefers to first examine the condition related to urgency.122 It may happen that, even when this condition is not satisfied, the analysis is continued with the determination of the existence of a fumus boni juris or with the consideration of the interests at stake,123 where such complementary analysis reinforces the dismissal of the application.

5.109

119 See, eg Order of 23 November 2018 in Case T-733/17 R GMPO v Commission [EU:T:2018:839] para 24; Order of 22 June 2018 in Case T-476/17 R Arysta LifeScience Netherlands v Commission [EU:T:2018:407] para 28 and the case law cited. 120 See, eg Order of 21 November 2019 in Case C-389/19 P-R Commission v Sweden (authorisation of lead sulfochromate) [EU:C:2019:1007] paras 31–32; Order of 23 February 2001 in Case C-445/00 R Austria v Council (heavy goods vehicles transit) [EU:C:2001:123] para 73; Order of 7 November 2019 in Case T-317/19 R AMVAC Netherlands v Commission [EU:T:2019:833] paras 15–16. 121 Order of 17 December 2018 in Case C-619/18 R Commission v Poland (independence of the Supreme Court) [EU:C:2018:1021] para 29; Order of 20 November 2017 in Case C-441/17 R Commission v Poland (Białowieża forest) [EU:C:2017:877] paras 29–30; Order of 7 November 2019 in Case T-317/19 R AMVAC Netherlands v Commission [EU:T:2019:833] para 16. 122 See, eg Order of 7 July 2016 in Case C-691/15 P-R Commission v Bilbaína de Alquitranes and Others [EU:C:2016:597] para 53; Order of 7 November 2019 in Case T-317/19 R AMVAC Netherlands v Commission [EU:T:2019:833] para 72; Order of 2 October 2019 in Case T-542/19 R FV v Council [EU:T:2019:718] para 50; Order of 11 September 2019 in Case T-578/19 R Sophia Group v Parliament [EU:T:2019:583] para 47; Order of 15 July 2019 in Case T-176/19 R 3V Sigma v ECHA [EU:T:2019:547] para 38. 123 See, eg Order of 21 January 2019 in Case T-574/18 R Agrochem-Maks v Commission [EU:T:2019:25] paras 81–82; Order of 22 June 2018 in Case T-476/17 R Arysta LifeScience Netherlands v Commission [EU:T:2018:407] paras 100–101; Order of 22 June 2018 in Case T-719/17 R FMC v Commission [EU:T:2018:408] paras 92–93.

586 Interim Measures 5.110

Examination follows no specific order. With regard to the overall examination, the Judge hearing an application for interim measures has wide discretion and is free to determine, in the light of the specific circumstances of the case, the manner in which he ascertains whether those various conditions are satisfied and the order in which this examination is carried out, there being no rule of law imposing a pre-established scheme of analysis within which the need to prescribe interim measures must be assessed.124

5.111

Interaction between the conditions. It is apparent from the EU Courts’ case law that the more or less serious nature of a prima facie case is not without relevance for the assessment of urgency.125 The urgency pleaded by an applicant must be taken into consideration by the Judge all the more if the prima facie case raised by the pleas and arguments relied on appears particularly serious.126 The strength of the prima facie case should also be taken into account, where appropriate, in the context of balancing the interests involved.127 The fact remains that, in accordance with the Rules of Procedure,128 the conditions relating to a prima facie case and to urgency are distinct and cumulative, so that an applicant still needs to prove the imminence of serious and irreparable harm in order to establish urgency.129

5.2.5.1. Fumus Boni Juris 5.112

Evolution of case law. The requisite degree of fumus boni juris (ie the probability in which the main action appears to be well founded at first glance) has evolved over time.130 In its 1959 order in Lachmüller, the Court of Justice stated that ‘it should be clearly apparent that there exists a strong presumption that the application in the main action is well-founded’.131 From this early precedent to the current state of law, the assessment of this condition has greatly changed, developing towards what one can qualify as a fumus non mali juris or, in other words, towards a requirement of having at least one plea in the main action that would not be, at first sight, seen as entirely unfounded and could have a chance of success.132 With such understanding, to demonstrate that this condition is satisfied is not the highest hurdle for the applicant.133 Only frivolous

124 Order of 19 July 1995 in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [EU:C:1995:257] para 23; Order of 3 April 2007 in Case C-459/06 P(R) Vischim v Commission [EU:C:2007:209] para 25; Order of 7 November 2019 in Case T-317/19 R AMVAC Netherlands v Commission [EU:T:2019:833] para 17. 125 Order of 7 July 2016 in Case C-691/15 P-R Commission v Bilbaína de Alquitranes and Others [EU:C:2016:597] para 20; Order of 31 January 2011 in Case C-404/10 P-R Commission v Éditions Odile Jacob [EU:C:2011:37] para 27. 126 See Order of 7 July 2016 in Case C-691/15 P-R Commission v Bilbaína de Alquitranes and Others [EU:C:2016:597] para 20; Order of 23 February 2001 in Case C-445/00 R Austria v Council (heavy goods vehicles transit) [EU:C:2001:123] para 110; Order of 23 April 2015 in Case C-35/15 P(R) Commission v Vanbreda Risk & Benefits [EU:C:2015:275] paras 41 and 57. 127 Order of 12 June 2014 in Case C-21/14 P-R Commission v Rusal Armenal [EU:C:2014:1749] para 40. 128 CJ RoP, Art 160(3); GC RoP, Art 156(4). 129 See, eg Order of 7 July 2016 in Case C-691/15 P-R Commission v Bilbaína de Alquitranes and Others [EU:C:2016:597] para 21; Order of 12 June 2014 in Case C-21/14 P-R Commission v Rusal Armenal [EU:C:2014:1749] para 41; Order of 19 July 2012 in Case C-110/12 P(R) Akhras v Council [EU:C:2012:507] para 26; Order of 8 April 2014 in Case C-78/17 P-R Commission v ANKO [EU:C:2014:239] para 14. 130 See Order of 19 July 1995 in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [EU:C:1995:257] paras 26–27. 131 Order of 20 October 1959 in Joined Cases C-43/59 R and C-45/59 R Von Lachmüller and Others v Commission [EU:C:1959:24] p. 492. 132 See Order of 26 October 2001 in Case T-184/01 R IMS Health v Commission [EU:T:2001:259] paras 56–75. 133 See, eg Order of 28 April 2009 in Case T-95/09 R United Phosphorus v Commission [EU:T:2009:124] paras 30–31.

Substantive Requirements 587 or manifestly unfounded actions should thus be filtered through that condition.134 As such, it prevents the interim relief Judge from prejudging the issues raised in the main action. However, a few recent rulings at first instance may have shown a more demanding approach,135 albeit not always validated on appeal.136 Definition of fumus boni juris. According to the settled case law of the EU Courts, the fumus boni juris requirement is met where at least one of the pleas in law relied on by the applicant for interim measures in support of the main action appears, prima facie, not unfounded. There may be strong prima facie cases where it is rather clear, already at first glance, that the contested act is vitiated by an illegality (cf paras 5.116 and 5.118). The above definition of fumus boni juris is much broader though, and includes inter alia the case where one of the pleas relied on reveals the existence of difficult legal issues the solution to which is not immediately obvious and therefore calls for a detailed examination that cannot be carried out by the interim relief Judge but must be the subject of the main proceedings, or where the discussion of issues by the parties reveals that there is a major legal or factual disagreement whose resolution is not immediately obvious,137 so that the action is not prima facie without reasonable substance.138

5.113

Aim and spirit of the fumus boni juris test. Since the purpose of the interim proceedings is to guarantee that the final decision to be taken is fully effective, in order to avoid a lacuna in the legal protection ensured by the EU Courts, the Court hearing the application for interim relief must restrict itself to assessing prima facie the merits of the grounds put forward in the main proceedings in order to ascertain whether there is a sufficiently large probability of success of the action.139 Moreover, the interim relief procedure, which is based on a prima facie examination, is not designed to establish the truth of complex and much debated facts.140 The Judge hearing an application for interim measures does not have the means necessary to carry out such examinations, and in numerous instances he would have difficulty doing so in sufficient time.141

5.114

Extent of assessment. Although it is true that, in the context of interim proceedings, the Court hearing the application for interim measures is not required, as a rule, to undertake as detailed an assessment as in the context of the main proceedings, this cannot be interpreted as meaning that

5.115

134 Order of 7 January 2008 in Case T-375/07 R Pellegrini v Commission [EU:T:2008:3] paras 21–29, upheld on appeal by Order of 17 July 2008 in Case C-114/08 P(R) Pellegrini v Commission [EU:C:2008:438]; Order of 22 November 2007 in Case T-345/05 R III V v Parliament [EU:T:2007:353]. 135 See Order of 25 October 2018 in Case T-420/18 R JPMorgan Chase and Others v Commission [EU:T:2018:724]; Order of 25 October 2018 in Case T-419/18 R Crédit agricole and Crédit agricole Corporate and Investment Bank v Commission [EU:T:2018:726]; Order of 5 February 2019 in Case T-675/18 R Trifolio-M and Others v EFSA [EU:T:2019:64]. 136 See Order of 1 July 2019 in Case T-388/19 R Puigdemont i Casamajó and Comín i Oliveres v Parliament [EU:T:2019:467] dismissing the application on the sole ground that there was no prima facie case. However, it was set aside on appeal by Order of 20 December 2019 in Case C-646/19 P(R) Puigdemont i Casamajó and Comín i Oliveres v Parliament [EU:C:2019:1149] specifically on the basis that it was wrongly concluded at first instance that there was no prima facie case. 137 See, eg Order of 17 December 2018 in Case C-619/18 R Commission v Poland (independence of the Supreme Court) [EU:C:2018:1021] para 30; Order of 20 July 2018 in Case C-238/18 R ECB v Latvia (President of the Central Bank) [EU:C:2018:581] para 36; Order of 3 December 2014 in Case C-431/14 P-R Greece v Commission (State aid by ELGA) [EU:C:2014:2418] para 20; Order of 1 March 2017 in Case C-512/16 P(R) EMA v MSD Animal Health Innovation and Intervet international [EU:C:2017:149] para 59; Order of 5 February 2019 in Case T-675/18 R Trifolio-M and Others v EFSA [EU:T:2019:64] para 35. 138 See Order of 13 June 1989 in Case C-56/89 R Publishers Association v Commission [EU:C:1989:238] para 31; Order of 8 May 2003 in Case C-39/03 P-R Commission v Artegodan and Others [EU:C:2003:269] para 40. 139 Order of 19 December 2013 in Case C-426/13 P(R) Commission v Germany (substance limits in toys) [EU:C:2013:848] para 41; Order of 8 April 2014 in Case C-78/14 P-R Commission v ANKO [EU:C:2014:239] para 15. 140 Order of 20 July 2016 in Case T-718/15 R PTC Therapeutics International v EMA [EU:T:2016:425] para 64. 141 See Order of 1 September 2015 in Case T-235/15 R Pari Pharma v EMA [EU:C:2015:587] para 39 and the case law cited.

588 Interim Measures a detailed assessment is absolutely prohibited.142 In Vanbreda Risk & Benefits v Commission, the first instance interim Judge fully examined all three parts of the single plea put forward in support of the main action, as presented in the application for interim measures, to consider that the condition related to the existence of a fumus boni juris was satisfied,143 while the General Court, ruling on the main action, limited itself to the first two parts of that single plea, upheld it without ruling on the third part, and annulled the contested act.144 5.116

Particularly serious or sound prima facie case and the urgency condition. The strength of the fumus boni juris may have consequences on the assessment of other conditions to be fulfilled for the grant of interim relief (cf paras 5.111 and 5.119). Indeed, the identification of a ‘particularly serious prima facie case’ has effects on the judicial appraisal of the condition relating to urgency.145 For instance, in the field of public procurement, when a sufficiently manifest and serious illegality is revealed in the fumus boni juris test, this justifies that the effects of the illegality be reduced or prevented from expanding as soon as possible, unless this is definitively precluded by the balancing of the interests involved. In these exceptional circumstances, evidence of the seriousness of the harm derived from a strong prima facie case suffices, on its own, to fulfil the condition relating to urgency,146 and the applicant does not need to prove that he would be likely to suffer irreparable harm.147 This case law is nonetheless limited to actions brought against public procurement decisions. Indeed, as a general rule, a prima facie case, however strong, cannot make up for the lack of urgency.148

5.117

Fumus boni juris and balancing interests. The identification of a ‘particularly sound prima facie case’ may also have essential influence on the assessment of the balance of the interests at stake. While EU institutions or bodies have wide discretion as regards the policy choices in various fields, which allows them to decide, in the contested act, the interest to which they give priority, the Courts may substitute their own assessment for that of the author of the act when weighing up the conflicting interests in the context of the assessment of interim measures if strong fumus boni juris and clear urgency allow them.149

5.118

The impact of a particularly strong prima facie case on the overall assessment. Finally, it results from the case law that, when the contested act seems to lack even the appearance of 142 Order of 3 April 2007 in Case C-459/06 P(R) Vischim v Commission [EU:C:2007:209] para 50. 143 Order of 4 December 2014 in Case T-199/14 R Vanbreda Risk & Benefits v Commission [EU:T:2014:1024] paras 25–136. 144 Case T-199/14 Vanbreda Risk & Benefits v Commission [EU:T:2015:820] para 159. 145 See Order of 19 July 2016 in Case T-131/16 R Belgium v Commission (excess profit exemption) [EU:T:2016:427] para 37. 146 Order of 4 December 2014 in Case T-199/14 R Vanbreda Risk & Benefits v Commission [EU:T:2014:1024] para 162. See also Order of 24 March 2015 in Case T-383/14 R Europower v Commission [EU:T:2015:190] para 61; Order of 17 July 2015 in Case T-321/15 R GSA and SGI v Parliament [EU:T:2015:522] para 31. 147 See Order of 23 April 2015 in Case C-35/15 P(R) Commission v Vanbreda Risk & Benefits [EU:C:2015:275] paras 30 and 57; Order of 22 March 2018 in Case C-576/17 P(R) Wall Street Systems UK v ECB [EU:C:2018:208] para 25. See also Order of 26 June 2018 in Case T-299/18 R Strabag Belgium v Parliament [EU:T:2018:389] paras 37–39; Order of 5 December 2014 in Case T-652/14 R AF Steelcase v OHIM [EU:T:2014:1026] para 18; Order of 21 April 2017 in Case T-158/17 R Post Telecom v EIB [EU:T:2017:281] para 19 et seq. 148 Order of 27 February 2015 in Case T-826/14 R Spain v Commission (State aid through corporation tax scheme) [EU:T:2015:126] paras 21–23; Order of 26 November 2010 in Case T-484/10 R Gas Natural Fenosa SDG v Commission [EU:T:2010:486] para 93 and the case law cited. 149 See, eg Order of 1 February 2001 in Case T-350/00 R Free Trade Foods v Commission [EU:T:2001:37] para 48; Order of 21 March 1997 in Case C-110/97 R Netherlands v Council (rice from overseas territories) [EU:C:1997:185] para 33; Order of 7 July 2004 in Case T-37/04 R Região autónoma dos Açores v Council [EU:T:2004:215] para 193; Order of 19 December 2001 in Joined Cases T-195/01 R and T-207/01 R Government of Gibraltar v Commission [EU:T:2001:291] para 115.

Substantive Requirements 589 legality, its operation should be suspended forthwith, without the need to ascertain whether the condition relating to urgency has been met.150 In other words, a particularly strong prima facie case can derive from the identification of a flagrant and extremely serious illegality, the urgency residing then in the imperative need to provide a remedy as rapidly as possible.151 In such circumstances, the interim relief Judge may directly apply Article 278 TFEU (not specifying particular conditions), a provision of primary law which, therefore, takes precedence over the Rules of Procedure.152 The direct application of Article 278 TFEU thus authorises the interim relief Judge to order suspension if he considers ‘that circumstances so require’ and to prescribe interim measures that are ‘necessary’,153 with no need for more detailed analysis of the conditions.154 Such circumstances also entitle that Judge to prescribe interim measures that would amount to drawing specific consequences from the forthcoming final judgment.155 Relative strength of the prima facie case and the overall assessment. The relative strength of fumus boni juris can also be taken into account in the overall assessment even if it does not amount to the demonstration of a flagrant and extremely serious illegality (cf para 5.118). Indeed, the interim relief Judge may, where he considers it appropriate, take into consideration the relative strength of the pleas in law relied on when assessing urgency and weighing up the interests involved.156 However, while the relative strength of the prima facie case is not wholly without effect on the assessment of urgency, it remains true that these are two separate conditions that govern the grant of suspension of operation, and accordingly the appellant remains bound also to demonstrate the imminent threat of serious and irreparable harm (urgency).157

5.119

Prima facie case in the context of disclosure of confidential information. As regards the examination of whether it is urgent to grant interim measures in order to prevent the disclosure of confidential information, it should be noted that that assessment, relating to the question whether there is a risk of serious and irreparable harm to the interests of the party seeking interim relief, overlaps to some extent with the assessment of the existence of a prima facie case linked to the confidential nature of the information, as claimed by the party seeking those measures.158 Consequently, it is only when, first, the applicant for interim measures alleges that the information whose publication or transmission he wishes provisionally to prevent constitutes business

5.120

150 Order of 7 July 1981 in Joined Cases C-60/81 R and C-190/81 R IBM v Commission [EU:C:1981:165] para 7. 151 See, eg Order of 11 March 2013 in Case T-4/13 R Communicaid Group v Commission [EU:T:2013:121] para 45; Order of 23 February 2001 in Case C-445/00 R Austria v Council [EU:C:2001:123] para 110. 152 See Order of 24 February 2014 in Case T-45/14 R HTTS and Bateni v Council [EU:T:2014:85] paras 50–51. 153 See Order of 25 July 2014 in Case T-189/14 R Deza v ECHA [EU:T:2014:686] paras 99–101, 104 and 105; Order of 1 September 2015 in Case T-235/15 R Pari Pharma v EMA [EU:T:2015:587] paras 104–106, 109 and 110. 154 See Order of 19 July 2016 in Case T-131/16 R Belgium v Commission (excess profit exemption) [EU:T:2016:427] paras 40 and 42; Order of 4 December 2014 in Case T-199/14 R Vanbreda Risk & Benefits v Commission [EU:T:2014:1024] para 160. 155 See, eg Order of 8 January 2014 in Case T-505/13 R Stichting Sona and Nao v Commission [EU:T:2014:1] para 49; Order of 11 March 2013 in Case T-4/13 R Communicaid Group v Commission [EU:T:2013:121] para 45; Order of 23 February 2001 in Case C-445/00 R Austria v Council (heavy goods vehicles transit) [EU:C:2001:123] para 110. 156 Order of 7 March 2013 in Case C-551/12 P(R) EDF v Commission [EU:C:2013:157] para 23. See also Order of 25 October 2012 in Case C-168/12 P(R) Hassan v Council [EU:C:2012:674] para 24; Order of 23 February 2001 in Case C-445/00 R Austria v Council (heavy goods vehicles transit) [EU:C:2001:123] para 110; Order of 27 February 2015 in Case T-826/14 R Spain v Commission (State aid through corporation tax scheme) [EU:T:2015:126] para 22. 157 Order of 7 March 2013 in Case C-551/12 P(R) EDF v Commission [EU:C:2013:157] para 23. See also Order of 31 January 2011 in Case C-404/10 P-R Commission v Éditions Odile Jacob [EU:C:2011:37] para 27; Order of 19 July 2012 in Case C-110/12 P(R) Akhras v Council [EU:C:2012:507] para 26; Order of 27 February 2015 in Case T-826/14 R Spain v Commission (State aid through corporation tax scheme) [EU:T:2015:126] para 22. 158 Order of 12 June 2018 in Case C-65/18 P(R) Nexans France and Nexans v Commission [EU:C:2018:426] para 15; Order of 23 November 2017 in Case T-423/17 R Nexans France and Nexans v Commission [EU:T:2017:835] para 46; Order of 5 February 2019 in Case T-675/18 R Trifolio-M and Others v EFSA [EU:T:2019:64] para 30.

590 Interim Measures secrets or is covered by professional secrecy and, secondly, that allegation satisfies the condition that there is a prima facie case that the Judge is, in principle, required, when examining the condition of urgency, to start from the premise that the information constitutes business secrets or is covered by professional secrecy. It is therefore not sufficient, for obtaining interim measures, to claim that the information to be disclosed is confidential if such a claim does not satisfy the condition relating to a prima facie case.159 It must also be noted that the interim relief Judge – if he is not to disregard the intrinsically ancillary and provisional nature of proceedings for interim measures – may, as a rule, conclude that there is no prima facie case only where the information in question is obviously not confidential.160

5.2.5.2. Urgency 5.121

For urgency, serious and irreparable harm must be shown. The second statutory condition for granting interim measures is urgency.161 Under settled case law, urgency is only present if the serious and irreparable damage162 feared by the party seeking the interim measures is so imminent that its occurrence can be foreseen with a sufficient degree of probability. That party must prove the facts underlying his claim regarding such a damage. He must demonstrate that he cannot await the outcome of the main proceedings without suffering serious and irreparable harm.163 As to the likelihood of the latter’s occurrence, a purely hypothetical damage, based on future and uncertain events, cannot justify the grant of interim measures.164 It appears from the case law that most of the applications for interim relief are rejected on the ground of lack of urgency. This condition is key to the assessment of the interim relief Judge. His examination will thus often start with the verification of the presence of urgency. Three aspects of the latter deserve closer attention: (i) the general characteristics of the damage (cf para 5.122 et seq); (ii) the seriousness of the damage (cf para 5.125 et seq); and (iii) its irreparable nature (cf para 5.130 et seq). (i) General Characteristics of the Damage

5.122

Damage must be personal. Under settled case law related to individual applicants requesting interim measures, urgency must be assessed in the light of the need for an interim order in order to avoid the party requesting the interim relief personally suffering serious and irreparable damage.165 Thus, in order to establish urgency, an applicant cannot plead damage to an interest that is not personal to him, such as for example to the rights of third parties or harm caused to other undertakings not parties to the case.166 159 Order of 12 June 2018 in Case C-65/18 P(R) Nexans France and Nexans v Commission [EU:C:2018:426] paras 21–22; Order of 5 February 2019 in Case T-675/18 R Trifolio-M and Others v EFSA [EU:T:2019:64] paras 31–32. 160 Order of 5 February 2019 in Case T-675/18 R Trifolio-M and Others v EFSA [EU:T:2019:64] para 36. See also Order of 1 March 2017 in Case C-512/16 P(R) EMA v MSD Animal Health Innovation and Intervet international [EU:C:2017:149] para 60. 161 CJ RoP, Art 160(3); GC RoP, Art 156(4). 162 The terms ‘harm’, ‘damage’ and ‘prejudice’ are used as synonyms in the case law in this context. 163 See Order of 14 January 2016 in Case C-517/15 P-R AGC Glass Europe and Others v Commission [EU:C:2016:21] para 27 and case law cited. 164 See, eg Order of 26 September 2019 in Case T-740/18 R Taminco v Commission [EU:T:2019:717] paras 23 and 60; Order of 22 June 2018 in Case T-476/17 R Arysta LifeScience Netherlands v Commission [EU:T:2018:407] para 24; Order of 23 March 2017 in Case T-624/16 Gollnisch v Parliament [EU:T:2017:243] para 25. 165 See Order of 14 December 2001 in Case C-404/01 P(R) Commission v Euroalliages and Others [EU:C:2001:710] paras 61–62. 166 See Order of 24 March 2009 in Case C-60/08 P(R) Cheminova and Others v Commission [EU:C:2009:181] para 35; Order of 12 June 2014 in Case C-21/14 P-R Commission v Rusal Armenal [EU:C:2014:1749] para 51; Order of

Substantive Requirements 591 Causal link between the damage and the contested act. Under settled case law, when suspension of operation of an EU act is sought, the grant of the interim measure requested is justified only where the act at issue constitutes the decisive cause of the alleged serious and irreparable damage.167 Indeed, the urgent need to order an interim measure must result from the effects produced by the contested EU act and not from a lack of diligence on the part of the applicant.168 In that regard, the latter must, if it is not itself to bear the loss as part of the ‘risks of the undertaking’, show reasonable diligence in limiting the extent of the loss.169

5.123

Where the damage has already occurred. The urgency must continue until the time when the Judge hearing the application for interim measures makes his final decision.170 Therefore, when the harm has already occurred and could not be avoided by granting the interim measures sought, the condition related to urgency is not satisfied.171

5.124

(ii) Serious Harm Extent of damage and size of the undertaking concerned. The urgency condition is only fulfilled if the harm that would be suffered without the interim measures is serious. To assess the seriousness of an alleged damage, the interim relief Judge may adopt a comparative approach. He may measure the amount of any financial harm against the size of the undertaking which would suffer that harm in the absence of the interim measures sought.172 The harm will be regarded as more serious where it is significant compared to the undertaking’s size and as less serious if it is not. Thus, in certain circumstances, the arguments concerning the seriousness of the harm alleged may be rejected by simply comparing the harm to the turnover of the undertaking that may suffer that harm.173

5.125

Turnover thresholds may be taken into account. On the one hand, the Courts have found that, with regard to a loss corresponding to less than 10 per cent of the turnover of an undertak-

5.126

10 November 2004 in Case T-316/04 R Wam v Commission [EU:T:2004:333] para 28; Order of 25 July 2014 in Case T-189/14 R Deza v ECHA [EU:T:2014:686] para 71; Order of 4 December 2007 in Case T-326/07 R Cheminova and Others v Commission [EU:T:2007:364] para 50 and case law cited; Order of 21 January 2019 in Case T-574/18 R AgrochemMaks v Commission [EU:T:2019:25] para 37. 167 See Order of 7 March 2013 in Case C-551/12 P(R) EDF v Commission [EU:C:2013:157] para 41; Order of 11 November 2013 in Case T-337/13 R CSF v Commission [EU:T:2013:599] para 32. See also Order of 26 September 2019 in Case T-740/18 R Taminco v Commission [EU:T:2019:717] para 66; Order of 12 October 2018 in Case T-621/17 R Taminco v EFSA [EU:T:2018:763] para 65; Order of 22 June 2018 in Case T-476/17 R Arysta LifeScience Netherlands v Commission [EU:T:2018:407] para 45. 168 Order of 15 July 2008 in Case T-202/08 R CLL Centres de langues v Commission [EU:T:2008:293] para 73 and the case law cited. 169 Order of 10 July 2009 in Case T-196/09 R TerreStar Europe v Commission [EU:T:2009:270] para 85. 170 See Order of 8 June 2009 in Case T-173/09 R Z v Commission [EU:T:2009:180] para 22. See also Order of 29 October 2009 in Case T-352/09 R Novácke chemické závody v Commission (calcium carbide cartel) [EU:T:2009:422] para 39. 171 See, eg Order of 29 October 2009 in Case T-352/09 R Novácke chemické závody v Commission (calcium carbide cartel) [EU:T:2009:422] para 43; Order of 16 June 2015 in Case T-274/15 R Alcogroup and Alcodis v Commission [EU:T:2015:389] para 16; Order of 18 March 2016 in Case T-87/16 R Eurofast v Commission [EU:T:2016:172] para 20; Order of 25 August 2017 in Case T-47/16 R Sigma Orionis v REA [EU:T:2017:584] para 37; Order of 25 August 2017 in Case T-48/16 R Sigma Orionis v Commission [EU:T:2017:585] para 44. 172 See, eg Order of 26 September 2019 in Case T-740/18 R Taminco v Commission [EU:T:2019:717] para 40; Order of 22 June 2018 in Case T-476/17 R Arysta LifeScience Netherlands v Commission [EU:T:2018:407] para 33 and case law cited. 173 Order of 26 February 1981 in Case C-20/81 R Arbed and Others v Commission [EU:C:1981:61] para 14; Order of 23 May 1990 in Joined Cases C-51/90 R and C-59/90 R Comos-Tank and Others v Commission [EU:C:1990:228] paras 25–26.

592 Interim Measures ing active in highly regulated markets, the financial difficulties which that undertaking risked suffering do not appear to be such as to threaten its very existence.174 This does not, however, mean that a higher ratio of loss as compared to the turnover of the undertaking asking for interim measures would in itself establish the need for interim measures. For instance, in a case where the loss amounted to almost two thirds of the turnover of the undertakings requesting interim relief, the Courts held that in a highly regulated sector such as human medicines, where major investment was often required and unforeseeable government intervention in response to health risks could occur, it was for those undertakings to protect themselves against possible financial loss by adopting an appropriate policy.175 They refused to grant interim measures as a result. 5.127

No mechanical and rigid approach in assessing seriousness; the role of ‘special circumstances’. In United Phosphorus, it was accepted that, when evaluating the seriousness of the damage, the interim relief Judge cannot confine himself to having recourse, in a mechanical and rigid manner, solely to the relevant turnover of the undertakings requesting interim measures, but must also examine the circumstances of each case and put them in connection, when taking his decision, with the damage occasioned in terms of turnover.176 Therefore, in the analysis of the seriousness of the damage in that case, account was taken of the grave economic and financial crisis that afflicted the world economy at the material time and impacted the value of the group to which the applicant belonged. The interim relief Judge thus concluded that, in view of those ‘special circumstances’, the applicant established the seriousness of the damage it would suffer if the interim measures sought were not granted. However, the recognition of such special circumstances seems to be rare in the case law.177

5.128

Comprehensive approach when assessing seriousness of harm. The objective interests of the undertaking concerned are not to be viewed independently from the interests of the persons who control it, so that in answering the question whether the damage claimed is serious and irreparable, the financial situation of the persons controlling the undertaking must also be taken into account.178 Therefore, in assessing the financial viability of an undertaking and its ability to provide security, regard may be had not only to the circumstances of the undertaking which must lodge the guarantee, but also to the financial possibilities of its shareholders, and to the resources available, as a whole, to the group of undertakings to which it belongs.179 This ‘case law on groups of companies’, initially developed for majority (controlling) owners, has been extended to minority holdings (50 per cent, 40 per cent and even 30 per cent), since such substantial holdings can, depending on the capital structure of the undertaking concerned, be relevant to the assessment

174 Order of 22 June 2018 in Case T-476/17 R Arysta LifeScience Netherlands v Commission [EU:T:2018:407] para 34. See also Order of 11 April 2001 in Case C-474/00 P(R) Commission v Bruno Farmaceutici and Others [EU:C:2001:219] para 106. 175 See Order of 16 June 2016 in Case C-170/16 P(R) ICA Laboratories and Others v Commission [EU:C:2016:462] para 29 and case law cited. 176 Order of 28 April 2009 in Case T-95/09 R United Phosphorus v Commission [EU:T:2009:124] para 69. 177 See, eg Order of 26 September 2019 in Case T-740/18 R Taminco v Commission [EU:T:2019:717] para 49 et seq; Order of 22 June 2018 in Case T-476/17 R Arysta LifeScience Netherlands v Commission [EU:T:2018:407] paras 42 et seq; Order of 22 June 2018 in Case T-719/17 R FMC v Commission [EU:T:2018:408] para 49 et seq. 178 Order of 11 October 2007 in Case T-120/07 R MB Immobilien Verwaltungs v Commission [EU:T:2007:305] para 37 and case law cited. 179 Order of 7 March 1995 in Case C-12/95 P(R) Transacciones Marítimas and Others v Commission [EU:C:1995:62] para 12; Order of 11 October 2007 in Case T-120/07 R MB Immobilien Verwaltungs v Commission [EU:T:2007:305] para 36 and case law cited.

Substantive Requirements 593 of its ability to pay, so that an application for interim measures must in any case contain sufficient information about such minority holdings.180 Objective assessment of seriousness. However, it cannot be excluded that financial harm which is objectively significant and which allegedly results from the obligation to make an important final commercial choice within a disadvantageous timescale, could be considered as ‘serious’ even in the absence of information concerning the size (turnover) of the undertaking concerned. Thus, the fact that the requesting party failed to provide, in the application for interim measures, information concerning the size of the undertaking to which it belongs is not in itself sufficient to justify rejection of that application on the ground that the party failed to establish the seriousness of the alleged harm.181

5.129

(iii) Irreparable Harm Main rule: pecuniary damage is not irreparable. In order to fulfil the urgency condition, the applicant for interim measures must show that the harm that he would suffer without those measures is irreparable. Under settled case law, damage of a pecuniary nature cannot, save in exceptional circumstances, be regarded as irreparable or even hardly reparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before he suffered the damage. Any such damage could, in particular, be recouped by the applicant’s bringing an action for damages under Articles 268 and 340 TFEU182 (cf Chapter 3.3. Action for Damages). It is also settled case law that the market share held by a company indicates only the percentage of all the products present on the market in question which were sold by that company to customers over the course of a specified reference period. Consequently, a loss on that market share consists in the loss on the profits to be made in the future on sales of the product in question. A market share can thus clearly be represented in financial terms, as the holder of that market share can benefit from it only insofar as it generates profit for it.183 That said, pecuniary harm may be irreparable in a few exceptional situations, presented below (cf paras 5.131–5.133).

5.130

Exception (1): viability. In the event of financial damage, urgency is present if it appears that, without that measure, the applicant would be in a position that could imperil its existence before the final decision in the main action.184 Since imminent disappearance from the market does constitute damage that is both irremediable and serious, adoption of the interim measure sought

5.131

180 Order of 7 May 2010 in Case T-410/09 R Almamet v Commission [EU:T:2010:179] paras 57–58; Order of 24 January 2011 in Case T-370/10 R Rubinetterie Teorema v Commission [EU:T:2011:17] paras 39–42. 181 Order of 7 March 2013 in Case C-551/12 P(R) Électricité de France SA (EDF) v Commission [EU:C:2013:157] para 33. See also Order of 26 September 2019 in Case T-740/18 R Taminco v Commission [EU:T:2019:717] para 86; Order of 22 June 2018 in Case T-476/17 R Arysta LifeScience Netherlands v Commission [EU:T:2018:407] para 70. 182 See Order of 28 November 2013 in Case C-390/13 P(R) EMA v Intermune UK and Others [EU:C:2013:795] para 48 and case law cited; Order of 26 September 2019 in Case T-740/18 R Taminco v Commission [EU:T:2019:717] para 90; Order of 22 June 2018 in Case T-476/17 R Arysta LifeScience Netherlands v Commission [EU:T:2018:407] para 80; Order of 28 April 2009 in Case T-95/09 R United Phosphorus v Commission [EU:T:2009:124] para 33 and case law cited. 183 See Order of 22 June 2018 in Case T-476/17 R Arysta LifeScience Netherlands v Commission [EU:T:2018:407] para 54 and case law cited. See also Order of 26 September 2019 in Case T-740/18 R Taminco v Commission [EU:T:2019:717] para 71. 184 See, eg Order of 26 September 2019 in Case T-740/18 R Taminco v Commission [EU:T:2019:717] para 38; Order of 22 June 2018 in Case T-476/17 R Arysta LifeScience Netherlands v Commission [EU:T:2018:407] para 32 and case law cited; Order of 3 December 2002 in Case T-181/02 R Neue Erba Lautex v Commission [EU:T:2002:294] para 84.

594 Interim Measures appears justified in such a situation.185 It should be emphasised that the viability concerned is that of the applicant itself and not of parts of it, such as a manufacturing plant.186 5.132

Exception (2): irremediable loss of market shares. According to settled case law, the irremediable loss of market share is a situation that can be placed on an equal footing with that of the risk of disappearance from the market and can justify the adoption of the interim measure sought, provided that the irremediable effect of losing that market share is also of a serious nature. It is therefore not sufficient that a market share may be irremediably lost by an undertaking; rather, it is necessary for that market share to be sufficiently large in the light of, in particular, the size of that undertaking, regard being had to the characteristics of the group to which it belongs through its shareholders.187 An applicant which relies on the loss of such a market share must, furthermore, demonstrate that regaining a significant proportion of that share is impossible by reason of obstacles of a structural or legal nature.188

5.133

Exception (3): impossibility to quantify the damage. Harm of a financial nature may be considered to be serious and irreparable if that harm, even when it occurs, cannot be quantified. It is true that, under the relevant case law, the uncertainty of obtaining compensation for pecuniary damage through an action for damages cannot in itself show that such damage is irreparable. At the interlocutory stage of deciding on interim measures, the possibility of subsequently obtaining compensation for pecuniary damage via an action for damages brought following the annulment of the contested act is necessarily uncertain. Interlocutory proceedings relating to interim measures are not intended to act as a substitute for an action for damages in order to remove that uncertainty, since their purpose is only to guarantee the full effectiveness of the forthcoming final judgment that will be made in the main action, to which the interlocutory proceedings are an adjunct. However, the situation is different where it is already clear at the stage of the assessment of the application for interim measures that, in view of its nature and the manner in which it will foreseeably occur, the alleged harm may not be adequately identified or quantified, and that, in practice, it will not therefore be possible to make it good by bringing an action for damages.189

5.134

Case-by-case examination of irreparability. The Judge dealing with the application for interim measures must not apply the condition relating to the irreparable nature of the financial damage pleaded mechanically and rigidly, but must take account of the factual and legal circumstances specific to each case and determine, in the light of those specific circumstances, the manner in which those conditions of urgency are to be examined.190

5.135

Relaxation of the conditions applicable to assessing the existence of urgency. A relaxation of the conditions related to urgency has been permitted in only three areas of litigation where, 185 See Order of 28 April 2009 in Case T-95/09 R United Phosphorus v Commission [EU:T:2009:124] para 34 and case law cited. 186 Order of 22 June 2018 in Case T-476/17 R Arysta LifeScience Netherlands v Commission [EU:T:2018:407] para 83. 187 See, eg Order of 26 September 2019 in Case T-740/18 R Taminco v Commission [EU:T:2019:717] para 75; Order of 22 June 2018 in Case T-476/17 R Arysta LifeScience Netherlands v Commission [EU:T:2018:407] para 54 and case law cited. 188 See, eg Order of 26 September 2019 in Case T-740/18 R Taminco v Commission [EU:T:2019:717] para 94; Order of 12 October 2018 in Case T-621/17 R Taminco v EFSA [EU:T:2018:763] para 98; Order of 22 June 2018 in Case T-476/17 R Arysta LifeScience Netherlands v Commission [EU:T:2018:407] para 84; Order of 28 April 2009 in Case T-95/09 R United Phosphorus v Commission [EU:T:2009:124] para 35. 189 Order of 28 November 2013 in Case C-390/13 P(R) EMA v InterMune UK and Others [EU:C:2013:795] paras 49–51 and case law cited. See also Order of 22 June 2018 in Case T-476/17 R Arysta LifeScience Netherlands v Commission [EU:T:2018:407] paras 92–94; Order of 26 September 2019 in Case T-740/18 R Taminco v Commission [EU:T:2019:717] paras 119–121. 190 Order of 28 April 2009 in Case T-95/09 R United Phosphorus v Commission [EU:T:2009:124] para 74 and case law cited. See also Order of 26 September 2019 in Case T-740/18 R Taminco v Commission [EU:T:2019:717] para 107.

Substantive Requirements 595 for systemic reasons, it is excessively difficult, if not impossible, to satisfy those conditions as laid down in the Rules of Procedure and traditionally interpreted in the case law.191 These areas are: actions for annulment brought in the fields of restrictive measures (cf para 5.136); public procurement (cf para 5.137); and access to documents (cf para 5.138). Restrictive measures. Any application for the suspension of operation of a restrictive measure is, as a general rule, to be rejected on the ground that such a suspension could prevent that measure being fully effective in the event that the main action seeking its annulment was dismissed.192 Nonetheless, the interim relief Judge has been prepared to hold that urgency could be constituted by the overriding necessity of providing a remedy as expeditiously as possible for an illegality that was flagrant and extremely serious, or to apply directly Article 278 TFEU (not referring explicitly to irreparable harm), a provision of primary law which, therefore, takes precedence over the Rules of Procedure (setting irreparable harm as a condition).193

5.136

Public procurement. In this field, the General Court found that the systemic effect of the generally applicable case law was to make it practically impossible for an unsuccessful tenderer to demonstrate that the rejection of his tender would be likely to cause him irreparable harm, since the loss of a public contract can always be financially compensated (cf para 5.116).194 It was then held that such a result could not be reconciled with the requirements that follow from the effective interim judicial protection as guaranteed by Article 47 of the Charter of Fundamental Rights. For that reason, it is now recognised that, where an unsuccessful tenderer is able to demonstrate the existence of a particularly serious prima facie case, he cannot be required to establish that he would be likely to suffer irreparable harm, provided that he lodges his application within the required time limits.195

5.137

Access to documents. Actions for annulment may be brought against decisions of EU institutions or bodies giving public access to documents in their possession (cf para 5.11) by an applicant who claims that those documents contain his confidential business information. In such a case, the applicant may well ask for a suspension of operation of the decision giving access to documents, to prevent that the third party who obtained access to them discloses them to the public or to another third party. The irreparable nature of the damage can be established if disclosure would inform the applicant’s competitors of his business secrets and place the applicant in a competitive disadvantage, without any need for the alleged damage to be quantified.196

5.138

5.2.5.3. Balancing Interests The interests in obtaining interim measures must outweigh those opposing their adoption. According to the case law, the risks associated with both a positive and a negative decision on the application for interim measures must be weighed in the interlocutory proceedings. In practical 191 Order of 19 July 2016 in Case T-131/16 R Belgium v Commission (excess profit exemption) [EU:T:2016:427] para 37; Order of 28 November 2018 in Case T-305/18 R Klyuyev v Council [EU:T:2018:849] para 95 et seq. 192 Order of 14 June 2012 in Case C-644/11 P(R) Qualitest FZE v Council [EU:C:2012:354] paras 73–77; Order of 11 March 2013 in Case T-110/12 R Iranian Offshore Engineering & Construction v Council [EU:T:2013:118] para 34. See also, on this issue, V Terrien, ‘Le référé: problématiques actuelles et derniers développements’ (in: Contentieux de l’Union européenne – Questions choisies ed. by S Mahieu, Larcier, Brussels, 2014). 193 See Order of 24 February 2014 in Case T-45/14 R HTTS and Bateni v Council [EU:T:2014:85] paras 50–51. 194 Order of 19 July 2016 in Case T-131/16 R Belgium v Commission (excess profit exemption) [EU:T:2016:427] para 41. 195 See Order of 23 April 2015 in Case C-35/15 P(R) Commission v Vanbreda Risk & Benefits [EU:C:2015:275] paras 30 and 57. However, see, eg Order of 26 June 2018 in Case T-299/18 R Strabag Belgium v Parliament [EU:T:2018:389] paras 63, 66 and 70. 196 Order of 1 September 2015 in Case T-235/15 R Pari Pharma v EMA [EU:T:2015:587] paras 100–102.

5.139

596 Interim Measures terms, that means examining whether or not the interest of the party seeking interim measures in obtaining suspension of the contested act’s operation outweighs the interest in the act’s immediate implementation. In that examination, it must be determined whether the possible annulment of the contested act by the judgment in the main case would make it possible to reverse the situation that would have been brought about by the act’s immediate implementation and, conversely, whether suspension of the contested act’s operation would be such as to impede the objectives pursued by that act in the event of the main action being dismissed.197 5.140

Interests must merit protection. The legal situation created by an interim relief order must be reversible, the purpose of the procedure for interim relief being merely to guarantee the full effectiveness of the future decision in the main action.198 The interest defended by a party to interim relief proceedings does not merit protection where that party’s request is that the interim relief Judge should adopt a decision which, far from being a merely interim measure, serves to prejudge the future decision on the main action and to render it illusory by depriving it of its effectiveness.199

5.141

Economic interests versus public health. It is settled case law that, in principle, the requirements related to the protection of public health must unquestionably be given precedence over economic considerations.200 Moreover, even if the applicant succeeds in proving the urgency relating to the characteristics of its damage, it would still be necessary to assess it in the light of the principle according to which the precedence of the imperative requirements of the protection of public health may justify restrictions which have adverse consequences, and even substantial adverse consequences, for certain economic operators.201 The case law has highlighted the importance of the precautionary principle, under which where there is uncertainty as to the existence or extent of risks to human health, the EU institutions may take protective measures without having to wait until the demonstration of the reality and seriousness of those risks.202

5.2.6. The Order Closing the Interim Proceedings 5.2.6.1. Main Features of the Order Closing the Interim Proceedings 5.142

Reasoned order. Notwithstanding any earlier inaudita altera parte order (cf Subsection 5.2.4.3), the Courts must issue a decision on the application for interim measures that closes the interim proceedings. Pursuant to Article 162(1) of the CJ RoP and Article 158(1) of the GC RoP, such decision takes the form of a reasoned order, which is served on the parties. In that regard, it should be noted that the Judge hearing an application for interim measures cannot be required

197 Order of 1 March 2017 in Case C-512/16 P(R) EMA v MSD Animal Health Innovation and Intervet international [EU:C:2017:149] para 127; Order of 22 June 2018 in Case T-476/17 R Arysta LifeScience Netherlands v Commission [EU:T:2018:407] para 102. 198 See Order of 27 September 2004 in Case C-7/04 P(R) Commission v Akzo and Akcros [EU:C:2004:566] para 36. 199 See, eg Order of 29 November 2012 in Case T-164/12 R Alstom v Commission [EU:T:2012:637] paras 30–31; Order of 1 September 2015 in Case T-235/15 R Pari Pharma v EMA [EU:T:2015:587] paras 65–66; Order of 16 November 2012 in Case T-345/12 R Akzo Nobel and Others v Commission [EU:T:2012:605] paras 25–26. 200 See, eg Order of 21 January 2019 in Case T-574/18 R Agrochem-Maks v Commission [EU:T:2019:25] para 91; Order of 11 April 2001 in Case C-474/00 P(R) Commission v Bruno Farmaceutici and Others [EU:C:2001:219] para 112; Case C-221/10 P Artegodan v Commission [EU:C:2012:216] para 99 and case law cited. 201 Joined Cases C-570/07 and C-571/07 Blanco Pérez and Chao Gómez [EU:C:2010:300] para 90 and the case law cited. 202 See Order of 19 December 2013 in Case C-426/13 P(R) Commission v Germany (substance limits in toys) [EU:C:2013:848] para 54 and the case law cited.

The Order Closing the Interim Proceedings 597 to reply explicitly to all of the points of fact and law raised in the course of the interlocutory proceedings.203 It is sufficient that the reasons given validly justify his order in the light of the circumstances of the case and, in the case of orders issued by the General Court, enable the Court of Justice to exercise its powers of review.204 The interim relief order does not prejudge the final decision to be taken in the main action. Article 39 of the Statute and the Rules of Procedure205 provide that the ruling given in the context of an application for interim relief shall have only an interim effect, and shall be without prejudice to the decision of the EU Courts on the substance of the main case. In other words, the assessment of the Judge hearing the application for interim measures does not prejudge that of the Judges dealing with the main action. The former may thus consider that the main action is prima facie not inadmissible (cf para 5.94 on examination of the admissibility) and not without merits (cf Subsection 5.2.5.1. Fumus boni juris) without any consequences on the ruling of the Chamber that hears the main action.206

5.143

5.2.6.2. Effect of a Closing Order Rejecting the Application for Interim Relief General. The examination of an application for interim relief has no suspensory effect on the main proceedings. Therefore, the rejection of an application for interim relief normally bears no consequences on these proceedings. However, such rejection may lead the Judges dealing with the main action to apply expedited procedure or priority treatment ex officio if, despite the rejection, they still recognise the urgent nature of the proceedings. It may also trigger a request from the applicant to apply these procedures (cf Section 5.3.2. Expedited Procedure and Section 5.3.3. Priority Treatment).

5.144

Repeated applications for interim measures. Article 39 of the Statute specifies that the ruling given in the context of an application for interim relief shall be provisional. Accordingly, pursuant to Article 164 of the CJ RoP, refusal of an application for an interim measure shall not bar the party who made it from making a further application on the basis of new facts. Article 160 of the GC RoP prescribes a similar possibility,207 but reserves it to the main parties only. This difference has been specifically added in the GC RoP of 2015. According to settled case law, ‘new facts’ mean facts which appear after the issuing of the order that dismissed the first application for interim measures, or which the applicant was not capable of invoking in the first application or during the proceedings leading up to that first order, and which are relevant to the assessment of the case in question.208

5.145

203 See, eg Order of 19 July 1995 in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [EU:C:1995:257] para 58; Order of 29 January 1997 in Case C-393/96 P(R) Antonissen v Council and Commission [EU:C:1997:42] para 25. 204 See, eg Order of 31 August 2010 in Case C-32/09 P(R) Artisjus v Commission [EU:C:2010:473] para 17; Order of 14 October 1996 in Case C-268/96 P(R) SCK and FNK v Commission [EU:C:1996:381] para 52. 205 CJ RoP, Art 162(4); GC RoP, Art 158(4). 206 See, eg Order of 13 April 1987 in Case C-90/87 R W. v Court of Auditors [EU:C:1987:201] para 11; Order of 11 December 1984 in Case C-270/84 R Licata v Economic and Social Committee [EU:C:1984:387] para 8; Order of 28 April 2009 in Case T-95/09 R United Phosphorus v Commission [EU:T:2009:124] para 31; Order of 30 June 1999 in Case T-70/99 R Alpharma v Council [EU:T:1999:131] para 154. 207 See, eg Order of 21 July 2017 in Case T-130/17 R Polskie Górnictwo Naftowe i Gazownictwo v Commission [EU:T:2017:541] para 50; Order of 21 July 2017 in Case T-883/16 R Poland v Commission (OPAL pipeline) [EU:T:2017:542] para 39; Order of 21 July 2017 in Case T-849/16 R PGNiG Supply & Trading v Commission [EU:T:2017:544] para 53; Order of 17 July 2015 in Case T-321/15 R GSA and SGI v Parliament [EU:T:2015:522] para 68. 208 Order of 14 February 2019 in Case T-224/18 R II PV v Commission [EU:T:2019:97] paras 40–41; Order of 18 September 2014 in Case T-103/14 R II Frucona Košice v Commission [EU:T:2014:785] para 12; Order of 8 April 2011 in Case T-71/10 R II Xeda International v Commission [EU:T:2011:147] para 13; Order of 25 October 2010 in Case T-18/10 R II Inuit Tapiriit Kanatami and Others v Parliament and Council [EU:T:2010:448] paras 17–19 and 22; Order of 13 October 2006 in Case T-420/05 R II Vischim v Commission [EU:T:2006:304] para 54.

598 Interim Measures 5.146

Effect of the closing rejection order on the inaudita altera parte granting order. Where a suspension order has been adopted on the basis of Article 160(7) of the CJ RoP or Article 157(2) of the GC RoP inaudita altera parte (cf paras 5.96–5.99), the order closing the interim measures proceedings may still reject the application for suspension. Such a closing order will thus revoke the inaudita altera parte order, either expressly209 or implicitly210 (cf para 5.100). Implicit revocation results from the fact that a suspension order adopted inaudita altera parte indicates, in principle, that the operation of the contested act is suspended until the adoption of an order closing the interlocutory proceedings or until the adoption of a decision terminating the main proceedings, whichever is the earlier.211

5.2.6.3. Effect of a Closing Order Granting Interim Relief 5.147

Scope of the grant and conditional grant. The Judge hearing the application for interim relief may decide to grant the request in its entirety212 or only partially.213 Furthermore, that Judge may grant the requested suspension of the operation of the contested act subject to certain conditions being fulfilled. In Romana Tabacchi, the obligation imposed on the applicant to provide the Commission with a bank guarantee in order to avoid immediate payment of the fine due to participation in a cartel was suspended on, inter alia, the following terms: (i) within a period of two weeks of notification of the order, the applicant had to provide a bank guarantee of €400,000 and pay to the Commission the sum of €200,000; (ii) within a period of three months of notification of the order, the applicant had to pay to the Commission the sum of €330,000; and (iii) with effect from a fixed date, the applicant had to pay to the Commission the sum of €100,000 every three months until the first of the following two events occurs: payment of the balance of the fine remaining due or judgment in the main proceedings.214

5.148

The order closing the interim proceedings may still be modified or vacated. The provisional nature of the interim relief order being enshrined in Article 39 of the Statute, Article 163 of the

209 Order of 12 October 2018 in Case T-621/17 R Taminco v EFSA [EU:T:2018:763] point 2 of the operative part; Order of 20 February 2018 in Case T-260/15 R Iberdrola v Commission [EU:T:2018:87] point 2 of the operative part; Order of 21 July 2017 in Case T-883/16 R Poland v Commission (OPAL pipeline) [EU:T:2017:542] point 2 of the operative part; Order of 21 July 2017 in Case T-849/16 R PGNiG Supply & Trading v Commission [EU:T:2017:544] point 2 of the operative part; Order of 20 July 2016 in Case T-251/16 R Directeur général de l’OLAF v Commission [EU:T:2016:424] point 2 of the operative part. 210 See Order of 17 December 2018 in Case C-619/18 R Commission v Poland (independence of the Supreme Court) [EU:C:2018:1021] terminating the interlocutory proceedings in this case and, therefore, cancelling Order of 19 October 2018 in Case C-619/18 R Commission v Poland (independence of the Supreme Court) [EU:C:2018:852], which provisionally granted interim measures. 211 See, eg Order of 2 February 2018 in Case C-65/18 P(R)-R Nexans France and Nexans v Commission [EU:C:2018:62] point 1 in fine of the operative part; Order of 12 July 2017 in Case T-423/17 R Nexans France and Nexans v Commission [not reported] point 1 of the operative part. 212 Order of 19 July 2007 in Case T-31/07 R Du Pont de Nemours (France) and Others v Commission [EU:T:2007:236] paras 43 and 230. 213 Order of 2 March 2011 in Case T-392/09 R 1. garantovaná v Commission (calcium carbide cartel) [EU:T:2011:63] fifth indent of point 2 of the operative part (the applicant sought the suspension of the payment of a fine, but suspension was ordered on condition that it still paid part of the fine); Order of 13 July 2006 in Case T-11/06 R Romana Tabacchi v Commission (Italian raw tobacco cartel) [EU:T:2006:217] paras 12 and 146. 214 Order of 13 July 2006 in Case T-11/06 R Romana Tabacchi v Commission (Italian raw tobacco cartel) [EU:T:2006:217] point 1 of the operative part. For a similar approach, see Order of 13 April 2011 in Case T-393/10 R Westfälische Drahtindustrie and Others v Commission (prestressing steel cartel) [EU:T:2011:178]; Order of 2 March 2011 in Case T-392/09 R 1. garantovaná v Commission (calcium carbide cartel) [EU:T:2011:63] para 120, fourth to sixth indents.

The Order Closing the Interim Proceedings 599 CJ RoP and Article 159 of the GC RoP allow, on application by a party,215 the order closing the interim proceedings to be varied or cancelled at any time on account of a change in circumstances. The variation may consist in an extension of the duration originally fixed for the effects of the order.216 In Artegodan, the Court of Justice specified the meaning of the expression ‘change in circumstances’ and also the purpose of the parties’ possibility to request the modification of the previously adopted order. The Court held that such a possibility reflected the fundamentally precarious nature of measures granted in interim relief proceedings. It added that the term ‘change in circumstances’ should be interpreted as covering the occurrence of any factual or legal matter, such as to call into question the assessment by the interim relief Judge in respect of the conditions to which the grant of the interim relief was subjected. The scope of the term ‘change in circumstances’ cannot be limited to the coming to light of circumstances of a factual nature or of ‘new facts’, a concept used in relation to the making of a fresh application for interim relief following the dismissal of a previous application (cf para 5.145). The purpose of an application based on a ‘change in circumstances’, which may be made ‘at any time’, is solely to make the Judge reconsider, for the future only, an order granting interim relief. Such reconsideration may also relate to the assessment of the pleas of fact and of law which established a prima facie case for the grant of that relief.217 The interim relief order is provisional and its effects normally end with the judgment closing the main proceedings. Pursuant to Article 162(3) of the CJ RoP and Article 158(3) of the GC RoP, the interim measure shall lapse when the judgment which closes the main proceedings is delivered. The lodging of an appeal before the Court of Justice against the final decision in the main case has no suspensory effects in itself.218 Therefore, the effects of a suspension or of any other interim measure will vanish on the day of the adoption of that final decision. A new application for interim relief before the appellate Judge must be filed to obtain the benefits of interim measures.

5.149

The effects of the order may end before the judgment closing the main proceedings is delivered. According to Article 162(3) of the CJ RoP and Article 158(3) of the GC RoP, the order may fix a date on which the interim measure is to lapse. In 1. garantovaná, the interim relief Judge granted the applicant the requested alleviation regarding the payment of the cartel fine. However, the interim measures order indicated that the suspension was granted only until the earlier of the following two events would occur: maturing of the long-term loans on 11 July 2012 or delivery of the judgment bringing the main proceedings to an end.219

5.150

215 Unlike the expressly foreseen possibility of the EU Courts to vary or cancel an order for interim relief adopted inaudita altera parte on the basis of Art 160(7) of the CJ RoP or Art 157(2) of the GC RoP on application by a party, neither the CJ RoP nor the GC RoP indicates that the EU Courts can vary or cancel an order closing the interim proceedings of their own motion. The explicit indication that such possibility is given ‘on application by a party’ seems to exclude that the EU Judge could vary or cancel the closing interim measures order ex officio. 216 See, eg the following orders in which the end date was extended each time: Order of 28 April 2009 in Case T-95/09 R United Phosphorus v Commission [EU:T:2009:124] point 1 of the operative part; Order of 15 January 2010 in Case T-95/09 R II United Phosphorus v Commission [EU:T:2010:14] point 1 of the operative part; Order of 25 November 2010 in Case T-95/09 R III United Phosphorus v Commission [EU:T:2010:483] point 1 of the operative part. 217 Order of 14 February 2002 in Case C-440/01 P(R) Commission v Artegodan [EU:C:2002:95] paras 63–65. According to this definition, an order rejecting an application for interim relief cannot be subject to a request based on a change in circumstances but only based on new facts (see Order of 14 February 2019 in Case T-224/18 R II PV v Commission [EU:T:2019:97] paras 24–26). 218 Save in the case of the annulment of a regulation, cf para 3.586. 219 Order of 2 March 2011 in Case T-392/09 R 1. garantovaná v Commission (calcium carbide cartel) [EU:T:2011:63] para 120, first two indents. See also Order of 28 April 2009 in Case T-95/09 R United Phosphorus v Commission [EU:T:2009:124] point 1 of the operative part.

600 Interim Measures 5.151

Enforceability of the order may be subject to security. Due to their nature, the interim relief orders delivered by the EU Courts are immediately enforceable in order to avoid the risk of the applicant suffering serious and irreparable harm. However, pursuant to Article 162(2) of the CJ RoP and Article 158(2) of the GC RoP, the execution of the order may be made conditional on the lodging by the applicant of security, of an amount and nature to be fixed in the light of the circumstances.220 In Transacciones Marítimas, the applicants sought the suspension of the withdrawal of financial aid granted by the EU for a project to construct a fishing vessel. The interim relief Judge’s analysis demonstrated the existence of a real risk for the applicants to be placed in judicial liquidation since the amount of repayable aid far exceeded their assets. The suspension was then ordered, but was made subject to setting up a bank guarantee by the applicants in favour of the Commission, covering the full amount of the aid granted, until the adoption of the final judgment in the main action.221

5.2.6.4. Costs 5.152

As a rule, the costs are reserved until the final decision closing the main proceedings. Under the GC RoP, in the order closing the proceedings for interim relief, costs shall be reserved until the decision of the General Court on the substance of the case222 (cf para 5.393). There may be some exceptional situations where the order closing the interim proceedings does contain a ruling on costs (cf para 5.394). Albeit not explicitly regulated, the practice of the Court of Justice mirrors that of the General Court (cf para 5.395).

5.2.7. Appeal 5.153

Differentiating between two types of appeal cases relating to interim measures. First, Subsection 5.2.7.1. Appealing the Interim Relief Order concerns appeals brought before the Court of Justice against the General Court’s interim relief order. Such a dispute before the Court of Justice relates to the review of the General Court’s order dismissing or granting an application for interim measures, while the main case is still pending before the General Court. In such cases, the case number ends by P(R),223 or by P(R)-R where also a separate application for interim measures has been lodged, apart from the appeal (cf para 5.161). Secondly, Subsection 5.2.7.2. Requesting Interim Measures within the Appeal Procedure concerns the situation where the General Court has already delivered its final judgment in the main proceedings and a request for interim measures is filed in the appeal proceedings brought against that judgment. Such a request relates to the suspension of the operation of the General Court’s judgment in the main case and/or of the act contested at first instance. The case number is the same as that of the appeal brought against the General Court’s judgment delivered in the main case, ending by P-R, to indicate that the interim measures were requested in the main appeal case.

220 Order of 12 June 2014 in Case C-21/14 P-R Commission v Rusal Armenal [EU:C:2014:1749] paras 16–18. 221 Order of 26 October 1994 in Joined Cases T-231/94 R, T-232/94 R and T-234/94 R Transacciones Marítimas and Others v Commission [EU:T:1994:257]. See also Order of 7 May 1982 in Case C-86/82 R Hasselblad v Commission [EU:C:1982:151]. 222 GC RoP, Art 158(5). 223 ‘P’ and ‘R’ stand for ‘pourvoi’ and ‘référé’ (‘appeal’ and ‘interim relief ’ in French).

Appeal 601

5.2.7.1. Appealing the Interim Relief Order (i) Appealable Interim Measures Orders Review of inaudita altera parte orders. While Articles 56–57 of the Statute do not seem to exclude the possibility to lodge an appeal against interim measures orders adopted by the General Court inaudita altera parte under Article 157(2) of the GC RoP, such appeals are not filed in practice. Indeed, where one of the parties wishes that the inaudita altera parte granting order be reviewed and overturned, it may ask the General Court to vary or cancel it224 (cf 5.99), or request in his observations on interim measures that the order closing the interim measures proceedings revokes the measures ordered earlier inaudita altera parte (cf para 5.100). When making use of any of these possibilities, the party may rely on factual arguments, as opposed to appeals brought before the Court of Justice, which are limited to points of law.

5.154

Orders of the General Court closing the interim measure proceedings are appealable. Pursuant to Article 57(2) of the Statute, the parties to the proceedings may appeal to the Court of Justice against any decision of the General Court made pursuant to Article 278 or Article 279 TFEU. Parties are therefore entitled to appeal the orders allowing or dismissing an application for interim measures that are adopted at the end of the interim measures proceedings under Article 158(1) of the GC RoP.

5.155

No appeal against an interim relief order of the Court of Justice. Pursuant to Article 162 of the CJ RoP, the decision on interim measures taken by the Court of Justice takes the form of a reasoned order, from which no appeal shall lie.

5.156

(ii) Appeal against an Order of the General Court Closing the Interim Proceedings Time limit: two months plus 10 days. Pursuant to Article 57(2) of the Statute, the parties to the proceedings may appeal to the Court of Justice against any decision of the General Court made pursuant to Article 278 or Article 279 TFEU within two months from their notification, to which 10 days are added on account of distance (cf para 4.75). This time limit cannot be extended (cf para 3.617).

5.157

Grounds for appeal. Pursuant to Article 58 of the Statute, and in compliance with Article 256 TFEU, an appeal brought against an interim order is limited to points of law (cf para 3.618). It shall lie on the grounds of lack of competence of the General Court, a breach of procedure before it which adversely affects the interests of the appellant as well as the infringement of Union law by the General Court.

5.158

Proceedings. Article 57(3) of the Statute specifies that an appeal against an interim order of the General Court will be dealt with by way of summary procedure, as described in Article 39 of the Statute. Under Article 61(1) of the Statute, if the appeal is well founded, the Court of Justice sets aside the decision of the General Court and may then either itself give final judgment in the

5.159

224 GC RoP, Art 157(2). See Order of 10 April 2014 in Case T-199/14 R Vanbreda Risk & Benefits v Commission [not reported] paras 4–5. The Commission asked the interim relief Judge to revoke, with retroactive effect and with no reserve, his inaudita altera parte Order of 3 April 2014 in Case T-199/14 R Vanbreda Risk & Benefits v Commission [not reported].

602 Interim Measures matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.225 5.160

Obtaining interim relief in the appeal proceedings brought against the first instance interim order before 2016. Pursuant to Article 60 of the Statute, the lodging of an appeal against the interim order of the first instance Judge has no suspensory effect, which means that both the grant or the rejection by the General Court of the interim measures sought at first instance preserves its effects after bringing the appeal until the Court of Justice quashes the order or reverses the situation by adopting interim measures. Until 2016 (cf para 5.161), to obtain the interim relief sought but refused at first instance, the appellants used to insert in their appeals two heads of claim, requesting the Court of Justice not only (i) to set aside the contested interim relief order, but also (ii) to adopt the interim measures sought but refused at first instance (such as the suspension of operation of the act contested before the General Court).226 According to Article 61(1) of the Statute and in compliance with settled case law, if the Court of Justice set aside the first instance order, it was also to rule on the application for interim relief if the state of the proceedings so permitted (see para 5.159). It could therefore either reject the interim measures requested227 or grant them;228 or, if the state of the proceedings did not permit a final ruling, it referred the interim measures case back to the General Court.229

5.161

Obtaining interim relief in the appeal proceedings brought against the first instance interim order since 2016. In his order of 16 June 2016 in ICA Laboratories and Others v Commission, the Vice-President of the Court declared manifestly inadmissible the head of claim by which the appellants were seeking, on the basis of Articles 278 TFEU and 279 TFEU, the suspension of operation of the Commission regulation contested at first instance and also of the interim measures order of the General Court in which the latter refused to suspend the operation of the contested regulation.230 Such result was justified on the ground that the appellants’ application for interim relief, first, had not been made by a separate document and, secondly, merely stated the form of order sought, without any evidence or arguments being presented to support it.231 After this decision, one can observe that a new way to appeal a first instance interim order became the norm. Appellants now file an appeal against the interim order of the General Court (to obtain the annulment of this order) together with an application for interim relief (to obtain

225 See, eg Order of 20 December 2019 in Case C-646/19 P(R) Puigdemont i Casamajó and Comín i Oliveres v Parliament [EU:C:2019:1149] para 80; Order of 23 April 2015 in Case C-35/15 P(R) Commission v Vanbreda Risk & Benefits [EU:C:2015:275] para 59 and the case law cited. 226 See, eg Order of 15 December 2000 in Case C-361/00 P(R) Cho Yang Shipping v Commission [EU:C:2000:717] in limine; Order of 29 March 2012 in Case C-569/11 P(R) Golnisch v Parliament [EU:C:2012:199] para 13; Order of 21 January 2014 in Case C-574/13 P(R) France v Commission (State aid for maritime transport) [EU:C:2014:36] para 14; Order of 17 September 2015 in Case C-386/15 P(R) Alcogroup and Alcodis v Commission [EU:C:2015:623] para 13. 227 See, eg Order of 7 March 2013 in Case C-551/12 P(R) EDF v Commission [EU:C:2013:157]. 228 See, eg Order of 21 October 2003 in Case C-365/03 P(R) Industrias Químicas del Vallés v Commission [EU:C:2003:577]. 229 See, eg Order of 17 December 1998 in Case C-363/98 P(R) Emesa Sugar v Council [EU:C:1998:628] paras 2, 16 and 66. 230 Order of 16 June 2016 in Case C-170/16 P(R) ICA Laboratories and Others v Commission [EU:C:2016:462] paras 21–24. See also Order of 11 March 2016 in Case C-134/16 P(R)-R Chemtura Netherlands v EFSA [EU:C:2016:164] paras 18 and 20, in which the new way to appeal a first instance interim order was already applied by the appellant. For a similar approach relating to a head of claim seeking to obtain an inaudita altera parte order on the basis of Art 160(7) of the CJ RoP, see Order of 22 November 2018 in Joined Cases C-334/18 P(R) and C-334/18 P(R)-R Hércules Club de Fútbol v Commission [EU:C:2018:952] paras 21–23. cf para 5.184. 231 Order of 16 June 2016 in Case C-170/16 P(R) ICA Laboratories and Others v Commission [EU:C:2016:462] paras 21–24.

Appeal 603 the suspension or any other interim sought but refused at first instance).232 The reasons underlying this change of procedural approach therefore reside in, on the one hand, the fact that, pursuant to Article 160(4) of the CJ RoP, an application for interim relief must be filed in a separate document, the purpose mainly being to facilitate the identification of an urgent request (cf para 5.88), and, on the other hand, that the claim must be sufficiently substantiated and cannot be a mere statement (cf paras 5.89–5.90). The appeal and the application for interim measures are treated as two separate cases. The appeal against the General Court’s interim order obtains a case number followed by the letters ‘P(R)’, while the separate application for interim measures has the same case number, but the letters ‘P(R)-R’ are added.233 When considering the separate application for interim relief, the Court of Justice may also provisionally rule on it inaudita altera parte. Ordering interim measures on appeal does not necessarily mean the reversal of the situation obtained after the decision of the General Court. The Court of Justice may actually order interim measures that ensure the status quo: for instance, it may order the operation of the act contested in the main proceedings at first instance where the General Court refused to grant suspension of operation in its interim order.234 The Court of Justice may also join the P(R) case with the P(R)-R case.235 It is worth mentioning that also applications for inaudita altera parte orders under Article 160(7) of the CJ RoP must be filed by a separate document, failing which they are dismissed as inadmissible.236 Appeal against an interim order granting the measures sought by the applicant at first instance. Pursuant to Article 60 of the Statute, the lodging of an appeal against the interim order of the first instance Judge has no suspensory effect, meaning that a party concerned by an interim measure ordered by the General Court must comply with it, even if he lodges an appeal. It is possible that compliance by the appellant with the order at first instance may lead to the disappearance of a vested and present interest in bringing the appeal proceedings.237 If the appellant is at risk of suffering imminent harm due to the adoption of the interim measures at first instance,238 an appeal might need to be supplemented with a request for interim measures, to be lodged by a separate document (cf para 5.161).

5.162

Decisions on appeal. As in any appeal proceedings, if the Court of Justice finds that the operative part is well founded but the General Court’s reasoning is flawed, it may uphold the first instance order and perform a substitution of grounds.239 If the operative part is also flawed, it may set aside

5.163

232 See, eg Order of 2 February 2018 in Case C-65/18 P(R)-R Nexans France and Nexans v Commission [EU:C:2018:62] paras 1–2; Order of 16 January 2020 in Joined Cases C-605/19 P(R) and C-605/19 P(R)-R Highgate Capital Management v Commission [EU:C:2020:12] paras 36 and 38. 233 See, eg Order of 4 October 2017 in Case C-576/17 P(R)-R Wall Street Systems UK v ECB [EU:C:2017:735]; Order of 13 June 2018 in Case C-315/18 P(R)-R Valencia Club de Fútbol v Commission [EU:C:2018:443]; Order of 16 January 2019 in Case C-1/19 P(R)-R JPMorgan Chase and Others v Commission [EU:C:2019:41]; Order of 16 January 2019 in Case C-4/19 P(R)-R Crédit agricole and Crédit agricole Corporate and Investment Bank v Commission [EU:C:2019:40]; Order of 7 March 2019 in Case C-163/19 P(R)-R Trifolio-M and Others v EFSA [EU:C:2019:187]. 234 See, eg Order of 2 February 2018 in Case C-65/18 P(R)-R Nexans France and Nexans v Commission [EU:C:2018:62] point 1 of the operative part. 235 See, eg Order of 16 January 2020 in Joined Cases C-605/19 P(R) and C-605/19 P(R)-R Highgate Capital Management v Commission [EU:C:2020:12]. 236 Order of 22 November 2018 in Joined Cases C-334/18 P(R) and C-334/18 P(R)-R Hércules Club de Fútbol v Commission [EU:C:2018:952] paras 21–23. 237 See, eg Order of 19 September 2018 in Case C-229/18 P(R) Parliament v Strabag Belgium [EU:C:2018:740] paras 18–24. 238 In principle, the Judge hearing the application for interim relief at first instance will take into account this risk in the balance of interests at stake. However, this assessment, although very fact-based, might trigger errors in law that the appellant could raise on appeal. 239 See, eg Order of 10 September 2013 in Case C-278/13 P(R) Commission v Pilkington Group [EU:C:2013:558] para 45.

604 Interim Measures the first instance order and refer the case back to the General Court,240 or give a final ruling on interim measures if the state of the proceedings so permits.241 If the first instance order is legally sound, the appeal should be dismissed (cf 5.159).242 5.164

Appeals and first instance remedies. Depending on the scope of the interim measures granted at first instance, an appeal may not entirely address the effects of the contested order. It must also be recalled (cf 5.148) that, under Article 159 of the GC RoP, on application by a party, the order on interim measures may at any time be varied or cancelled on account of the change in circumstances. In Pari Pharma v EMA, after having obtained on appeal an order concluding that there was no need to adjudicate on the appeal,243 the appellant EMA, as defendant at first instance, seised the President of the General Court to request the cancellation of the President’s order of 1 September 2015, by which he granted the suspension of operation of a decision of the EMA.244 However, the President of the General Court observed that there was nothing in the order on the appeal that would call into question the assessment of the Judge who heard the application for interim relief as to the conditions to which the grant of the interim measures adopted in the first instance order was subject, with the result that the condition relating to a change in circumstances, as referred to in Article 159 of the GC RoP, was not satisfied.245

5.2.7.2. Requesting Interim Measures within the Appeal Procedure (i) General 5.165

Legal basis. The present subsection (Subsection 5.2.7.2) concerns the situation where the General Court has already delivered its final judgment in the main proceedings and a request for interim measures is filed in the appeal proceedings brought against that judgment (cf para 5.153). The same legal provisions apply to the application for interim measures in appeals as the provisions governing the filing of an application for interim relief in direct actions. Articles 278 and 279 TFEU provide for the possibility to order, respectively, the suspension of the contested act and any other interim measures (cf para 5.70). It follows from Article 60(1) of the Statute that these Treaty provisions are also applicable in the context of an appeal. Article 39 of the Statute states that applications for interim relief are to be dealt with by way of summary procedure.

5.166

Procedure and substantive requirements are the same as in direct actions. The procedure described in Articles 160–166 of the CJ RoP relating to interim measures requested in the context of direct actions is also applicable when such a request is made in appeal proceedings.246 Furthermore, as in the case of direct actions, an interim relief application lodged within an appeal before the Court of Justice shall state the subject matter of the proceedings, the circumstances giving rise to the urgency, and the pleas of fact and law establishing a prima facie case for the interim measure applied for.247 Therefore, the rules explained in Sections 5.2.1.–5.2.6. 240 See, eg Order of 28 November 2013 in Case C-389/13 P(R) EMA v AbbVie [EU:C:2013:794] para 56; Order of 28 November 2013 in Case C-390/13 P(R) EMA v InterMune UK and Others [EU:C:2013:795] para 58. 241 Order of 18 October 2016 in Case C-406/16 P(R) EMA v Pari Pharma [EU:C:2016:775] para 50; Order of 23 April 2015 in Case C-35/15 P(R) Commission v Vanbreda Risk & Benefits [EU:C:2015:275]. 242 See, eg Order of 1 March 2017 in Case C-513/16 P(R) EMA v PTC Therapeutics International [EU:C:2017:148]; Order of 1 March 2017 in Case C-512/16 P(R) EMA v MSD Animal Health Innovation and Intervet international [EU:C:2017:149]. 243 Order of 17 March 2016 in Case C-550/15 P(R) EMA v Pari Pharma [EU:C:2016:196]. 244 Order of 1 September 2015 in Case T-235/15 R Pari Pharma v EMA [EU:T:2015:587]. 245 Order of 23 May 2016 in Case T-235/15 R Pari Pharma v EMA [EU:T:2016:309] para 41. 246 CJ RoP, Art 190(1). 247 CJ RoP, Art 160(3).

Appeal 605 above, insofar as they concern proceedings before the Court of Justice, are also relevant to interim measures applied for in appeals. Features and effects of the interim relief order adopted in appeal proceedings. Article 39 of the Statute states that the ruling of the Judge hearing the application for interim relief shall be provisional and shall in no way prejudice the decision of the Court of Justice on the substance of the case (cf paras 5.143 and 5.150). The interim relief order adopted in appeals has the same scope and effects as the ones adopted by the Court of Justice in direct actions (cf paras 5.142–5.152).

5.167

(ii) Requesting Interim Relief in Appeals Where Interim Relief was Obtained at First Instance General. An appellant may have obtained interim relief at first instance (as applicant), and the adoption of the General Court’s decision terminating the procedure in the main case will end the effects of the interim relief order. Therefore, in an attempt to preserve the benefits of the first instance interim relief order, the appellant may lodge a further application for interim relief together with its appeal.248

5.168

Need for inaudita altera parte order. In such a situation, the appellant might seek an inaudita altera parte order to avoid having too great a lapse between the end of the effects of the first instance interim order and the interim relief order potentially adopted during the appeal procedure.249

5.169

Where the suspension of the General Court’s judgment is sought. The application for interim relief may seek the suspension of operation of the General Court’s judgment terminating the first instance proceedings. The Court of Justice has held that an application for such a suspension of operation cannot be envisaged against a negative decision (ie the General Court’s judgment dismissing the first instance action) save in exceptional circumstances, since the grant of suspension could not have the effect of changing the applicant’s position.250

5.170

Where the suspension of the act contested at first instance is sought. A party to the appeal proceedings may also request, explicitly or implicitly,251 the suspension of operation of the act challenged at first instance and/or any other interim measures. In that regard, it must be noted that the measures requested may not, in principle, overstep the procedural framework of the appeal to which they are attached. An interim relief request aimed at suspending the contested decision goes beyond the suspension of the operation of the judicial decision under appeal. However, it does not make the application for interim measures inadmissible inasmuch as the obligation from which the alleged risk may occur stems from the contested decision.252

5.171

248 See, eg Order of 2 March 2016 in Case C-162/15 P-R Evonik Degussa v Commission [EU:C:2016:142] para 17; Order of 15 December 2005 in Case C-326/05 P-R Industrias Químicas del Vallés v Commission [EU:C:2005:795] para 16. 249 In some instances, and in the interest of celerity, the Court of Justice may ask the respondent to commit itself not to implement the decision that was nevertheless confirmed by the first instance decision. In Order of 14 January 2016 in Case C-517/15 P-R AGC Glass Europe and Others v Commission (car glass cartel) [EU:C:2016:21] paras 15 and 17, it is indicated that the Commission pledged before the General Court not to implement the contested cartel decision until the end of the first instance proceedings, whereupon AGC Glass Europe did not ask for interim measures at first instance. On appeal, however, the Commission signalled that it intended to implement the cartel decision, whereupon AGC Glass Europe requested a suspension order from the Court of Justice. 250 Order of 21 February 2002 in Joined Cases C-486/01 P-R and C-488/01 P-R Front national and Martinez v Parliament [EU:C:2002:116] para 73 and case law cited. 251 See, eg Order of 3 December 2014 in Case C-431/14 P-R Greece v Commission (State aid by ELGA) [EU:C:2014:2418] paras 12 and 15. 252 Order of 29 April 2005 in Case C-404/04 P-R Technische Glaswerke Ilmenau v Commission [EU:C:2005:267] paras 12 and 14; Order of 3 December 2014 in Case C-431/14 P-R Greece v Commission (State aid by ELGA) [EU:C:2014:2418] paras 16 and 17.

606 Interim Measures 5.172

Assessment of fumus boni juris: taking into account the first instance judgment on merits. Where the application for interim measures concerns the suspension of operation of the decision contested at first instance in an action for annulment, and not the suspension of the judgment under appeal, the first instance judgment impacts the Court of Justice’s assessment. Indeed, in assessing the condition relating to the existence of a prima facie case, account must be taken of the fact that the legality of the contested decision has already been considered by a Court of the European Union, both as to the facts and the law, and that that Court held that the action brought against that decision was unfounded.252 However solid the pleas and arguments put forward by the applicant against the judgment under appeal may be, they cannot suffice, in themselves, to justify in law the suspension of operation of the contested decision. For a prima facie case to be established, the applicant must succeed in showing, in addition, that the pleas and arguments relied on against the legality of the contested decision in the action for annulment are such as to justify, prima facie, the grant of its suspension of operation.253 The need to put forward, in this application for interim measures, pleas in law which appear prima facie particularly solid therefore follows from, inter alia, the fact that those pleas must be capable of casting doubt on the findings made by the General Court in giving judgment on the substance of the arguments relied on by the applicant at first instance.254

5.173

Assessment of fumus boni juris: taking into account the first instance interim relief order. It may occur that the first instance interim order acknowledged the existence of exceptional and very particular circumstances to conclude that the balance of interest was in favour of the applicants but the assessment by the General Court in the judgment on the merits led to a dismissal of the main action at first instance. In such a case, when requesting interim measures on appeal, the appellant needs to put forward points of law which appear, prima facie, to be particularly significant because those pleas must be capable not only of rebutting the substantive assessment made by the General Court at first instance, but also of confirming the assessment by which the first instance interim relief Judge acknowledged the existence of exceptional and very particular circumstances.255 (iii) Requesting Interim Relief in Appeals Where no Interim Relief was Sought or Obtained at First Instance

5.174

General. The appellant may not have filed an application for interim relief at first instance, or, if he had, his application may have been rejected at first instance. In any event, the appellant may file an application for interim relief before the Court of Justice once the final decision at first instance has been adopted, in order to seek measures that would protect the appellant from the alleged risk of suffering harm due to the effect of that judicial decision.256 252 Order of 29 April 2005 in Case C-404/04 P-R Technische Glaswerke Ilmenau v Commission [EU:C:2005:267] para 19. 253 Order of 2 March 2016 in Case C-162/15 P-R Evonik Degussa v Commission (hydrogen peroxide cartel) [EU:C:2016:142] paras 23–24; Order of 3 December 2014 in Case C-431/14 P-R Greece v Commission (State aid by ELGA) [EU:C:2014:2418] paras 21–22; Order of 29 April 2005 in Case C-404/04 P-R Technische Glaswerke Ilmenau v Commission [EU:C:2005:267] paras 16–17. 254 See Order of 29 April 2005 in C-404/04 P-R Technische Glaswerke Ilmenau v Commission [EU:C:2005:267] para 20; Order of 3 December 2014 in Case C-431/14 P-R Greece v Commission (State aid by ELGA) [EU:C:2014:2418] para 24; Order of 2 March 2016 in Case C-162/15 P-R Evonik Degussa v Commission (hydrogen peroxide cartel) [EU:C:2016:142] para 25. 255 Order of 29 April 2005 in Case C-404/04 P-R Technische Glaswerke Ilmenau v Commission [EU:C:2005:267] para 20. 256 For an interim relief request filed on appeal for the first time by the applicant at first instance, see, eg Order of 6 September 2016 in Case C-378/16 P-R Inclusion Alliance for Europe v Commission [EU:C:2016:668]; Order of 14 January 2016 in Case C-517/15 P-R AGC Glass Europe and Others v Commission (car glass cartel) [EU:C:2016:21] paras 15 and 17. In these cases, the applicant did not consider it necessary to request interim relief at first instance because the Commission committed not to implement the challenged decision, unlike its intention for the appeal proceedings. For a request

Appeal 607 Need for inaudita altera parte order. If the General Court ruled in favour of the applicant on the substance, it might be relevant for the defendant at first instance, who becomes the appellant, to request that his application for interim relief be granted provisionally, inaudita altera parte, pending the order terminating the interim proceedings, even prior to the submission of observations by the other party to the proceedings.257

5.175

Admissibility issues. In principle, the applicant for interim relief will request the suspension of the first instance judgment terminating the main proceedings.258 However, he may also seek, explicitly or implicitly, the suspension of the operation of the act challenged at first instance and any other interim measures. The admissibility issues are the same as those explained above (cf paras 5.170–5.171) in the context of the situation where interim measures have already been granted at first instance.

5.176

The effect of a first instance judgment dismissing the main action on the interim relief assessment. In the case of an application for interim measures brought, in the context of an appeal, by the party which was unsuccessful at first instance as applicant, the interim relief Judge must restrict himself to assessing, prima facie, the merits of the grounds of appeal relied on in order to establish that the appeal is not wholly without merit, in other words, whether there is a sufficient prospect that the appeal will succeed.259 The purpose of the procedure for interim measures is to guarantee that the final decision to be taken is fully effective by avoiding a lacuna in the legal protection ensured by the Court.260

5.177

The effect of a first instance judgment upholding the main action on the interim relief assessment. In Commission v ANKO, an arbitration clause case lost at first instance by the Commission, the latter appealed and requested the suspension of operation of the first instance judgment. The interim relief Judge on appeal stressed the fact that the appeal presented several grounds raising complex questions, to which there was no immediately apparent solution. Since examination of the dispute by the General Court required that Court to assess a set of elements comprising points of law and legal classification, and the appraisal and finding of the facts, all those questions being closely interlinked, the interim relief Judge considered that the assessment of the pleas put forward in the appeal called for a thorough examination. This implied that the appeal had to be regarded, at the stage of the interim proceedings, as not being without any prospect of succeeding on the merits.261 The other conditions also being satisfied, the interim relief asked by the Commission was granted.

5.178

Where the General Court annulled a regulation. As an exception from the main rule, the appeal suspends the effect of the first instance judgment if the latter annuls a regulation (cf para 3.586),262 meaning that the regulation continues to apply until the appeal is decided. This is without prejudice, however, to the right of a party to apply to the Court of Justice, pursuant

5.179

for interim relief filed on appeal by the applicant at first instance, after its interim relief request had been refused by the General Court, see, eg Order of 19 December 2013 in Case C-506/13 P-R Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission [EU:C:2013:882]. For an interim relief request filed on appeal by the defendant at first instance, see, eg Order of 21 November 2019 in Case C-389/19 P-R Commission v Sweden (authorisation of lead sulfochromate) [EU:C:2019:1007]; Order of 8 April 2014 in Case C-78/14 P-R Commission v ANKO [EU:C:2014:239]; Order of 31 January 1991 in Case C-345/90 P-R Parliament v Hanning [EU:C:1991:37]. 257 See, eg Order of 21 February 2014 in Case C-78/14 P-R Commission v ANKO [EU:C:2014:93]. 258 See, eg Order of 31 January 1991 in Case C-345/90 P-R Parliament v Hanning [EU:C:1991:37]. 259 Order of 12 June 2014 in Case C-21/14 P-R Commission v Rusal Armenal [EU:C:2014:1749] para 23. 260 See Order of 8 April 2014 in Case C-78/14 P-R Commission v ANKO [EU:C:2014:239] para 15. 261 Order of 8 April 2014 in Case C-78/14 P-R Commission v ANKO [EU:C:2014:239] para 17. 262 Statute, Art 60(2).

608 Interim Measures to Articles 278 and 279 TFEU, for the suspension of operation of the regulation which has been declared void or for the prescription of any other interim measure.263 5.180

The effect of a first instance judgment annulling a regulation on the interim relief assessment. Since the EU legislature, by the adoption of Article 60(2) of the Statute, decided to confer a suspensive effect on the bringing of an appeal against a judgment of the General Court annulling a regulation, it is not appropriate for the Court of Justice hearing an application for interim measures in the context of an appeal to deprive Article 60(2) of a part of its effectiveness by systematically relaxing, or even disregarding, the condition of urgency.264 However, if the interim measures are sought by the applicant who was successful at first instance, account must be taken of the first instance judgment when it comes to the fumus boni juris test. In order to assess whether, prima facie, there exists a major legal disagreement whose resolution is not immediately obvious, the interim relief Judge must determine whether the arguments of that party seeking to have the appeal dismissed (the successful applicant at first instance) are not without merit, in that they have a sufficient prospect of success. That means that the successful applicant at first instance (respondent on appeal) must establish that, notwithstanding the grounds of appeal put forward by the other party, his own opposing arguments are sufficiently cogent and are prima facie capable of succeeding, and, consequently, that it is not obvious that the judgment under appeal must be set aside.265

263 See, eg Order of 7 July 2016 in Case C-691/15 P-R Commission v Bilbaína de Alquitranes and Others [EU:C:2016:597]; Order of 12 June 2014 in Case C-21/14 P-R Commission v Rusal Armenal [EU:C:2014:1749]. 264 Order of 7 July 2016 in Case C-691/15 P-R Commission v Bilbaína de Alquitranes and Others [EU:C:2016:597] para 25. See also Order of 12 June 2014 in Case C-21/14 P-R Commission v Rusal Armenal [EU:C:2014:1749] para 39. 265 Order of 12 June 2014 in Case C-21/14 P-R Commission v Rusal Armenal [EU:C:2014:1749] paras 24–25.

5.3. Expedition [written by Vivien Terrien1]

5.3.1. Overview Notion of expedited, accelerated and urgent procedures. The Statute allows that the Rules of Procedure of the Court of Justice (CJ RoP) and of the General Court (GC RoP) establish expedited, accelerated and urgent procedure.2 First, ‘expedited procedures’ refer to the procedure to speed up the handling of preliminary references,3 direct actions,4 appeals5 and actions in intellectual property cases.6 Secondly, the term ‘accelerated procedure’ is only used once in the Statute as a synonym for ‘expedited procedure’.7 Finally, ‘urgent procedures’ can refer to the urgent preliminary ruling procedure (cf Subsection 4.5.8.2),8 or to the procedure under which the Court of Justice has to give a ruling on the questions subject to review,9 but is also used in the GC RoP as a general term to encompass both the expedited procedure and the procedure requesting the suspension of operation or enforcement and other interim measures10 (cf Chapter 5.2. Interim Measures). The expedited preliminary ruling procedure and the urgent preliminary ruling procedure are examined separately in Subsections 4.5.8.1. and 4.5.8.2, respectively, in Chapter 4.5. Procedure in Preliminary Rulings.

5.181

Legal basis. Article 23a of the Statute indicates that the Rules of Procedure may provide for an expedited or accelerated procedure and, as regards preliminary references relating to the area of freedom, security and justice, also for an urgent procedure. According to the same provision, those procedures may provide, in respect of the submission of statements of case or written observations, for a shorter period than that provided for by Article 23 of the Statute, and, in derogation from Article 20(4) of the Statute, for the case to be determined without a submission from the Advocate General.

5.182

Structure. The present chapter explains the provisions on expedited procedure applied in direct actions11 and appeals12 by the Court of Justice, as well as those on expedited procedure applied

5.183

1 Référendaire, General Court of the EU. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the General Court. 2 Statute, Art 23a. 3 CJ RoP, Arts 105–106. 4 cf para 4.100; CJ RoP, Arts 133–136; GC RoP, Arts 151–155. 5 CJ RoP, Art 190. 6 cf para 3.519; GC RoP, Art 191. 7 Statute, Art 23a. 8 Statute, Art 23a; CJ RoP, Art 53(5). 9 Statute, Art 62a. After the absorption of the Civil Service Tribunal by the General Court and the transfer of the power to hear and determine staff cases at first instance to the latter, there are no cases which could be the subject of the review procedure. It is therefore not covered in this book. 10 GC RoP Title III, ch 16. 11 CJ RoP, Arts 133–136. 12 CJ RoP, Art 190(1).

610 Expedition in direct actions13 and intellectual property cases14 by the General Court15 (cf Section 5.3.2. Expedited Procedure). Furthermore, it also presents the practice of both Courts concerning the priority treatment of cases (cf Section 5.3.3. Priority Treatment).

5.3.2. Expedited Procedure 5.3.2.1. General 5.184

In a nutshell. An expedited procedure is rarely granted. Procedural requirements before the General Court are more detailed than those before the Court of Justice. Substantive conditions remain relatively vague and are very fact-based. Recent procedural reforms allow for more flexibility, since the EU Courts may now trigger this procedure of their own motion. The duration of proceedings when an expedited procedure is granted tends to be less than a year.

5.185

History. It has been possible to rule under an expedited procedure before the Court of Justice since 1 July 2000 and before the General Court since 1 February 2001. When the General Court was established in 1989 (as the Court of first instance), no rules existed as to expedited procedure. In December 2000, provisions on expedition were finally inserted in the GC RoP of 1991. This addition was also a response to an increase in the duration of the proceedings after 10 years of judicial activity, which required that expedited handling be possible in duly justified cases.

5.186

Legal basis in the Rules of Procedure. With respect to the Court of Justice, Article 53(4) of the CJ RoP foresees that a case may be dealt with under an expedited procedure in accordance with the conditions provided for by the CJ RoP. The detailed provisions on expedition are set out in Articles 133–136 of the CJ RoP as regards direct actions. A reference is made to them in Article 190(1) of the CJ RoP that renders them applicable to appeals brought against decisions of the General Court. With respect to the General Court, the procedure is detailed at Articles 151–155 of the GC RoP in Title III ‘Direct Actions’. A reference is made to these provisions in Article 191 of the GC RoP, which ensures their applicability in the context of intellectual property cases as well.

5.187

Changes made in the new Rules of Procedure. The reforms of the CJ RoP (the CJ RoP of 2012 entered into force on 1 November 201216) and of the GC RoP (the GC RoP of 2015 entered into force on 1 July 2015) specifically addressed the expedited procedure. One of the main changes consists in the fact that the Courts may henceforth decide to deal with a case under an expedited procedure of their own motion. This amendment greatly modifies the possibility to have recourse to this procedure in allowing more flexibility to its use. While, previously, parties who did not file a request for an expedited procedure at the very same time as they lodged their pleadings could not benefit from an expedited procedure in a given case, they can now suggest to the Courts that

13 GC RoP, Arts 151–155. 14 GC RoP, Art 191. 15 Accordingly, the case law cited in the present chapter relates to requests for expedited procedure granted or rejected in the context of direct actions, appeals and intellectual property cases. However, it should be noted that the case law regarding expedited procedure in the context of requests for preliminary ruling is often relied on irrespective of the nature of the procedure concerned. 16 On this reform, see M-A Gaudissart, ‘La refonte du règlement de procédure de la Cour de justice’ (2012) Cahiers de droit européen 603–669.

Expedited Procedure 611 the latter take such a decision of their own motion. This modification thus improves judicial case management by putting a new tool in the hands of EU Judges to mend a party’s omission and to avoid the impairment of good administration of justice.17 Practice of the Court of Justice. From 2000 to 2019, it is submitted18 that the Court of Justice granted fewer than 10 requests for expedited procedure in direct actions and fewer than five in appeal proceedings, and probably rejected twice those figures for each procedure.19 Since the introduction of the possibility for the Court of Justice to decide of its own motion to apply expedited procedure, at least two such decisions have been taken.20

5.188

Practice of the General Court. At the General Court, for the past 10 years, the corresponding figures are as follows: in 2016, three requests were granted out of 14 (21 per cent); this figure is similar to those in 2013 (seven granted out of 32 requests, ie 22 per cent) and 2012 (five granted out of 26, ie 20 per cent), whereas in 2018, one out of nine were granted (11 per cent); three out of 31 were granted in 2014 (10 per cent); there was only one out of 18 in 2015 (6 per cent); only two out of 43 in 2011 (5 per cent); and none at all in 2010, 2017 and 2019 out of 24, 10 and 16, respectively. Since the amendment introducing the possibility for the General Court to decide of its own motion to deal with a case under the expedited procedure, one such decision has been taken.21

5.189

Duration of the procedure in practice. The average duration of proceedings when dealt with under the expedited procedure is approximately 10 months.

5.190

5.3.2.2. Formal Requirements and Procedural Aspects (i) The Request for Expedited Procedure The main parties may request expedited procedure. Pursuant to Article 133(1) of the CJ RoP (mirrored by Article 151 of the GC RoP), both the applicant and the defendant may file a request for an expedited procedure. Interveners do not have such a right. Furthermore, both the Court of Justice and the General Court may decide of their own motion to adjudicate under an expedited procedure (cf paras 5.208–5.209).

5.191

Time limit. When the request for an expedited procedure is filed by one of the main parties, it has to be lodged simultaneously with the application initiating the proceedings or the defence (response in appeals and in intellectual property cases), as the case may be.22

5.192

17 In that regard, see K Andová, M Barennes and V Terrien, ‘New rules of procedure of the EU General Court: what are the new provisions that may specifically matter to competition lawyers’ Concurrences 3–2015, p. 229, para 39. 18 Official figures seem to present discrepancies since they do not match with the results obtained via a simple query on the Curia case law search engine. For instance, based on the annual reports of the Court of Justice of the European Union, the Court of Justice seems to have granted three requests for an expedited procedure in direct actions whereas at least six orders granting a request for expedited procedure in direct actions are available on the Curia website. Moreover, it seems that not all decisions are made available through the Curia case law search engine. 19 It follows from the annual reports of the Court of Justice of the European Union that the Court of Justice rejected 11 requests in direct actions and 15 in appeal proceedings. 20 See Order of 11 October 2017 in Case C-441/17 Commission v Poland (Białowieża forest) [EU:C:2017:794] para 7; Order of 12 June 2018 in Case C-202/18 Rimšēvičs v Latvia [EU:C:2018:489] para 8. 21 See Case T-321/15 GSA and SGI v Parliament [EU:T:2015:834] para 23. 22 CJ RoP, Art 133(2); GC RoP, Art 152; GC PR, para 208.

612 Expedition 5.193

Formal requirements relating to the request – statutory conditions. Before both EU Courts, a request for an expedited procedure must be made by a separate document.23 The Practice Directions of the Court of Justice (CJ PD) only provide that the request filed with the Court of Justice must set out in detail the circumstances capable of justifying the use of such a procedure24 (cf para 5.196 et seq). With respect to the General Court, the Practice Rules of the General Court (GC PR) specify that the request for an expedited procedure must state on the first page that it is lodged under Articles 151 and 152 of the GC RoP.25 Under the GC RoP, the request shall contain a statement of reasons specifying the particular urgency of the case and any other relevant circumstances26 (cf para 5.206 et seq). Moreover, the request for an expedited procedure may state that certain pleas in law or arguments, or certain passages of the application initiating the proceedings or the defence, are raised only in the event that the case is not decided under an expedited procedure. In that regard, an abridged version of the application initiating the proceedings with the annexes that are to be taken into consideration if the case is decided under an expedited procedure may be enclosed with the request.27 The GC PR indicate that the a pplication in respect of which the expedited procedure is requested must not, in principle, exceed 25 pages, and must comply with the requirements set out for the structure and content of written pleadings28 (cf Section 4.2.2. Application). Non-compliance with the formal requirements may well result in regularisation, which delays the handling of the case. Finally, it is recommended that an abridged version of the application be annexed to the application at the time of its lodging, in order to speed up the procedure. If the applicant did not annex such a version at the outset, he may also be requested by the General Court when it grants the request for expedited procedure.29 Paragraph 213 of the GC PR provides detailed directions for the drafting and formatting of the abridged version.

5.194

Case law on formal requirements. A request for an expedited procedure cannot consist of a mere head of claim, but must be made by a separate document.30 The failure to comply with this requirement leads the request to be considered as manifestly inadmissible. An expedited procedure, in which there is no second round of written submissions, presupposes that the applicant’s arguments are clearly and definitively established at the outset in the application, or in the abridged version thereof, as the case may be. Furthermore, the necessary limitation of the volume of the parties’ submissions, and therefore, by implication, the limitation of the number and complexity of the arguments put forward, may not be circumvented by systematic reference to voluminous and/or complex reports. In other words, the fact that an action is dealt with under an expedited procedure increases, rather than reduces, the relevance of the settled case law according to which the essential matters of law and fact on which the application is based must be apparent from its very text (cf para 4.138), even if only stated briefly, provided that the statement is coherent and comprehensible.31

23 CJ

RoP, Art 133(2); CJ PD, para 18; GC RoP, Art 152; GC PR, para 208. PD, para 18. 25 GC PR, para 209. 26 GC RoP, Art 152(1). 27 GC RoP, Art 152(2). 28 GC PR, para 210. 29 GC RoP, Art 151(3); GC PR, para 215. 30 Case T-61/17 Selimovic v Parliament [EU:T:2018:565] paras 26–28. 31 Case T-87/05 EDP v Commission [EU:T:2005:333] para 183. 24 CJ

Expedited Procedure 613 (ii) Procedural Implications for the other Main Party General. Pursuant to Article 133(1) of the CJ RoP and Article 151(1) of the GC RoP, when a party files for an expedited procedure, the other party must be heard. Therefore, irrespective of any preliminary assessment of the well-founded nature of the request that the Courts could make, the Registrar must automatically serve the said request and its accompanying documents, if any, on the other party. A request by the applicant for an expedited procedure may shorten the time limit open for lodging the defence. With respect to the Court of Justice, the CJ PD foresee such a consequence only after such a request is granted.32 Conversely, before the General Court, where the applicant has requested that the case be decided under an expedited procedure, the period prescribed for lodging the defence is automatically reduced to one month (plus 10 days added on account of distance)33 from the usual two months34 (cf para 4.207), unless an extension is granted by the President35 at the reasoned request of the defendant in consideration of exceptional circumstances.36 Furthermore, the President shall take account, when setting the time limits, of the particular urgency in adjudicating on the action.37 Where the case is dealt with under an expedited procedure, the defendant must adapt his defence with regard to the way the applicant filed his request for the expedited procedure. First, if the applicant has attached an abridged version of the application initiating proceedings to his request, the defendant must respond to the pleas in law and arguments contained in that abridged version of the application.38 Secondly, if the applicant has specified in his request the pleas in law, arguments or passages of the application initiating the proceedings which are to be taken into consideration only in the event that the case is not decided under the expedited procedure, the defendant must respond to the pleas in law and arguments put forward in the application in the light of the information provided in the request for the expedited procedure.39 Finally, if the applicant has not specified in his request the pleas in law, arguments or passages of the application initiating the proceedings which are to be taken into consideration only in the event that the case is not decided under the expedited procedure, the defendant must respond to the application initiating the proceedings as he normally would but within the reduced period of one month.40 If the General Court decides not to allow a request for an expedited procedure, the defendant shall be granted an additional period of one month in order to lodge or, as the case may be, supplement the defence.41 In the latter case, the additional period starts from the date of service of the decision refusing the request for an expedited procedure.42

32 CJ PD, para 18. 33 GC RoP, Art 154(1). 34 GC RoP, Art 81(1). 35 If the case has already been allocated to a Chamber, the decision is taken by the President of that Chamber; otherwise the President of the General Court has competence to decide on the request for extension (cf para 1.61). However, in practice, when a request for expedited procedure is filed, the President of the General Court immediately allocates the case to a Chamber in order to allow it to decide on all procedural decisions that could be raised in that context. 36 GC RoP, Art 81(3). 37 GC RoP, Art 154(4). 38 GC PR, para 218. 39 GC PR, para 217. 40 GC PR, para 216. 41 GC RoP, Art 154(2). 42 GC PR, para 220.

5.195

614 Expedition

5.3.2.3. Substantive Requirements as to Granting the Request for Expedited Procedure (i) Court of Justice 5.196

Statutory conditions for granting a request for expedited procedure. The CJ RoP provide that the request for an expedited procedure may be granted ‘where the nature of the case requires that it be dealt with within a short time’.43 The CJ PD merely indicate that such a request must set out ‘the circumstances capable of justifying the use of such a procedure’.44 The reference to the ‘particular urgency’ mentioned in the old CJ RoP of 1991 has been deleted.45 This modification relaxing the substantive conditions, introduced by the CJ RoP of 2012, finds its justification in the willingness of the Court of Justice to enjoy a greater margin of discretion in deciding whether to apply an expedited procedure.46 However, since the case law interpreting the notion of ‘particular urgency’ is still mentioned in the decisions adopted under the CJ RoP of 2012 assessing the need for an expedited procedure with regard to the new criteria, parties should take this case law into consideration when substantiating their request for expedition.

5.197

The request must be substantiated with concrete elements. The need to materially substantiate the existence of a ‘particular urgency’ with concrete elements is illustrated by Gbagbo v Council, in which mere statements alleging serious violations of the applicants’ rights and fundamental freedoms to justify the request for expedited procedure were dismissed by the Court of Justice as not being sufficient to establish particular urgency.47

5.198

Legal uncertainty and number of persons affected is in itself not decisive; however, expedition may be allowed where the case concerns an essential and sensitive domain of the EU’s activity. It is settled case law that neither legal uncertainty48 as to the legality or the interpretation of an act nor the large number of persons or of legal situations potentially affected49 are sufficient in themselves to constitute exceptional circumstances justifying the grant of an expedited procedure.50 However, the Court of Justice may allow an expedited procedure when the field concerned can be qualified as being an essential and sensitive domain of the EU’s activity. Examples for such domains are provided below (cf paras 5.199–5.201).

5.199

Economic and financial policy. A first illustration can be found in the budget area. In its order of 13 February 2004, adopted in Commission v Council,51 the Court of Justice stressed the fact that the interpretation issue raised in the context of the compliance with EU budgetary discipline concerned a fundamental aspect of this procedure. Emphasising the facts that, on the one hand, the field in question was both essential and sensitive, and, on the other hand, it was the first 43 CJ RoP, Art 133(1). 44 CJ PD, para 18. 45 CJ RoP of 1991 Art 62a. 46 See M-A Gaudissart, ‘La refonte du règlement de procédure de la Cour de justice’ (2012) Cahiers de droit européen 649. 47 Order of 14 December 2011 in Joined Cases C-478/11 P to C-482/11 P Gbagbo and Others v Council [EU:C:2011:833] paras 3–8. 48 Order of 2 February 2015 in Case C-551/14 P Arctic Paper Mochenwangen v Commission [EU:C:2015:107] para 8; Order of 2 February 2015 in Case C-540/14 P DK Recycling und Roheisen v Commission [EU:C:2015:58] para 8. 49 Order of 10 February 2004 in Case C-540/03 Parliament v Council (family reunification) [not reported] para 10; Order of 21 September 2004 in Case C-317/04 Parliament v Council (agreement on passenger name records) [EU:C:2004:834] para 11; Order of 21 September 2004 in Case C-318/04 Parliament v Council (agreement on passenger name records) [EU:C:2004:850] para 12. 50 Order of 14 December 2011 in Joined Cases C-478/11 P to C-482/11 P Gbagbo and Others v Council [EU:C:2011:833] para 7; Order of 7 April 2016 in Case C-104/16 P Council v Front Polisario [EU:C:2016:232] para 7. 51 Order of 13 February 2004 in Case C-27/04 Commission v Council (excessive deficits) [not reported].

Expedited Procedure 615 time the Court of Justice had the opportunity to take a stand on the issues raised by the case, it concluded that it was in the interest of the proper functioning of the Economic and Monetary Union to deal with the case under the expedited procedure. It should be noted that the Court of Justice specified that this decision did not prejudge the solution in the main case and, therefore, was not detrimental to the interests of the opposing party (ie the Council). Similarly, in the context of the cases Rimšēvičs v Latvia and ECB v Latvia concerning the decision of a national authority suspending the governor of the national central bank from office, the Court of Justice applied the expedited procedure on the ground that, when a legal uncertainty is likely to cause an obstacle to the proper functioning of a system established by EU law in order to implement one of its policies, such as the Union’s monetary policy and the banking prudential supervision, it must rule on the substance in the shortest possible time.51 EU foreign affairs. When the Court case relates to the field of the EU’s relationship with third countries, which is an essential and sensitive domain of activity of the EU, and especially when its concerns the conclusion of an agreement falling under the EU’s common commercial policy,52 legal uncertainty as to the legality or the interpretation of an act or the important number of persons or of legal situations potentially affected may constitute exceptional circumstances justifying the grant of an expedited procedure. Such circumstances may exist when an act concluding an international agreement is annulled, since it can bear important negative consequences on the relations of the EU with the third country concerned.53 In Council v Front Polisario, the suspension of the diplomatic relationship between the EU and Morocco due to the annulment at first instance of the Council decision on the conclusion of an agreement with Morocco (raising the question whether and, if so, how the Council should have taken into consideration the potential application of the agreement to Western Sahara) led the Court of Justice to acknowledge that the nature of the case justified an expedited procedure.54 With regard to the strong reliance on the ‘nature’ of the case, this order is an illustration of the impact of the relaxation of the conditions set out in the CJ RoP as to applying an expedited procedure (cf para 5.196). Indeed, the previously applicable criterion, ie the ‘particular urgency’, may have been more difficult to satisfy in the factual context of this case.

5.200

EU fundamental rights and values. In Commission v Poland (independence of the Supreme Court), the Court of Justice granted the request for expedited procedure filed by the Commission in the context of an infringement action related to national measures lowering the retirement age of the judges appointed to the Polish Supreme Court and empowering the President of the Republic of Poland with the discretion to extend the period of judicial activity of judges of that court. The Court of Justice’s order took into consideration the fact that the infringement action was brought in view of the doubts entertained by the Commission as to the ability of the Polish Supreme Court, following the contested legislative amendments, to continue to rule in compliance with the fundamental right of any individual to have access to an independent court, as enshrined in Article 47 of the Charter of Fundamental Rights.55 The Court noted that the uncertainties

5.201

51 Order of 12 June 2018 in Case C-202/18 Rimšēvičs v Latvia [EU:C:2018:489] para 12; Order of 12 June 2018 in Case C-238/18 ECB v Latvia [EU:C:2018:489] paras 13–17. 52 Order of 7 April 2016 in Case C-104/16 P Council v Front Polisario [EU:C:2016:232] para 10. 53 Case C-28/12 Commission v Council (air transport agreement with the US) [EU:C:2015:282] para 61; Order of 7 April 2016 in Case C-104/16 P Council v Front Polisario [EU:C:2016:232] para 11. 54 Order of 7 April 2016 in Case C-104/16 P Council v Front Polisario [EU:C:2016:232] paras 12–15. 55 Order of 15 November 2018 in Case C-619/18 Commission v Poland (independence of the Supreme Court) [EU:C:2018:910] para 20.

616 Expedition surrounding the disputed national provisions were also liable to have an effect on the working of the system of judicial cooperation embodied by the preliminary ruling mechanism provided for in Article 267 TFEU, the keystone of the EU judicial system, for which the independence of the national courts, and particularly those ruling at last instance, is essential.56 5.202

Risk of economic loss. Although it may be proven and significant, a risk of economic loss is not such as to establish, in and of itself, the existence of particular urgency.57 Therefore, a request for expedited procedure cannot, in principle, merely rely on actual or potential economic and financial harm, but will have to present, aside from these arguments, other elements to justify the application of such procedural treatment.

5.203

Complexity. The complexity of a case does not preclude the application of an expedited procedure.58 This criterion must be assessed in the light of all the circumstances of the case, as provided for in Article 133 of the CJ RoP.59

5.204

Irreversibility. In Commission v Hungary (compulsory retirement of judges), related to Hungarian legislation modifying the retirement age for judges and notaries, the Court of Justice found decisive, to grant the request for expedited procedure, the potentially irreversible consequences that the national measures could have had on the career of the persons concerned, especially with regard to the difficulties to reintegrate them once they were obliged to leave service.60 The Court of Justice even specified that the judgment had to be delivered before 31 December 2012 (to avoid alleged detrimental effects of the contested legislation on a certain category of persons) and actually ruled on the case on 6 November 2012, finding that Hungary had failed to fulfil its obligations under EU law.61 Another example is given by the order in Commission v Poland (Białowieża forest), where imminent and potentially serious risks for the environment and biodiversity led the Court of Justice to deal with an infringement case under the expedited procedure.62 In this case, both parties were arguing that the contested operations or their suspension (as decided temporarily by the EU Judge hearing the application for suspension)63 had irreversible consequences on the natural habitat and on wild fauna and flora.

5.205

Absence of request for an interim relief. The fact that the party who filed a request for an expedited procedure did not, in addition, introduced a request for an interim relief does not prevent the Court of Justice from granting a request for an expedited procedure,64 since the object and the conditions related to these two procedures are not similar.65

56 Order of 15 November 2018 in Case C-619/18 Commission v Poland (independence of the Supreme Court) [EU:C:2018:910] para 22. 57 Order of 23 October 2009 in Case C-69/09 P Makhteshim-Agan Holding and Others v Commission [EU:C:2009:658] para 10; Order of 2 February 2015 in Case C-540/14 P DK Recycling und Roheisen v Commission [EU:C:2015:58] para 7; Order of 2 February 2015 in Case C-551/14 P Arctic Paper Mochenwangen v Commission [EU:C:2015:107] para 7; Order of 2 February 2015 in Case C-565/14 P Romonta v Commission [EU:C:2015:56] para 7. See also Order of 18 July 2007 in Case C-193/07 Commission v Poland [EU:C:2007:464] paras 3, 8–9 and 13. 58 Order of 7 April 2016 in Case C-104/16 P Council v Front Polisario [EU:C:2016:232] para 16. 59 Order of 7 April 2016 in Case C-104/16 P Council v Front Polisario [EU:C:2016:232] para 17. 60 Order of 13 July 2012 in Case C-286/12 Commission v Hungary (compulsory retirement of judges) [EU:C:2012:469] paras 15–18. 61 Case C-286/12 Commission v Hungary (compulsory retirement of judges) [EU:C:2012:687]. 62 Order of 11 October 2017 in Case C-441/17 Commission v Poland (Białowieża forest) [EU:C:2017:794] paras 12–14. 63 Order of 27 July 2017 in Case C-441/17 R Commission v Poland (Białowieża forest) [EU:C:2017:622]. 64 Order of 7 April 2016 in Case C-104/16 P Council v Front Polisario [EU:C:2016:232] para 16. 65 Order of 7 April 2016 in Case C-104/16 P Council v Front Polisario [EU:C:2016:232] para 18.

Expedited Procedure 617 (ii) General Court Statutory conditions. The GC RoP indicate that the decision on the request for an expedited procedure is taken having regard to the ‘the particular urgency and the circumstances of the case’.66 These two conditions give wide room for argumentation and, as a corollary, a wide margin of appreciation to the EU Judge. The statutory conditions are purposely vague to allow for a caseby-case analysis.

5.206

Possible interpretations of the statutory conditions. While there is no published (cf para 5.213) case law of the General Court, its decisional practice may shed some light on the interpretation of the statutory criteria for granting expedition. It is submitted that motivation as to the first criterion, ie ‘particular urgency’, may include, inter alia, great legal uncertainty, commensurate economic and financial interests, important social consequences and/or a tight schedule or agenda.67 It should thus relate to a certain need for a fast economic, social and legal solution. For instance, merger cases could theoretically fit this picture. To satisfy the second criterion, ie the ‘circumstances of the case’, it seems that the case must be simple.68 In other words, the case should not raise complex factual questions, be focused on pure legal questions, have a limited number of pleas, lend itself well to oral debate and be composed of a thin file. Potential connections with other pending cases must also be taken into consideration. The General Court might not be willing to grant an expedited procedure request if such a decision would result in an obligation to decide on a series of cases at the same earlier time.69 However, none of these criteria are decisive in themselves. For instance, arguments based on potential economic or financial damages may be disregarded if any such damage could be recouped by the applicant by bringing an action for damages.70

5.207

5.3.2.4. The Decision on Expedited Procedure (i) Competence to take the Decision Court of Justice. Pursuant to Article 133(1) of the CJ RoP, the decision on the request for an expedited procedure is taken by the President of the Court, after hearing the other party, the Judge-Rapporteur and the Advocate General. Similarly, where the President decides on an expedited procedure of his own motion, the parties, the Judge-Rapporteur and the Advocate General must be heard.71 No time limit is set for the Court of Justice to decide to adjudicate under an expedited procedure.

5.208

General Court. The GC RoP provide that the decision on the request for an expedited procedure is taken by the Chamber, after hearing the other main party.72 The decision shall be taken as soon

5.209

66 GC RoP, Art 151(1). 67 See, eg Case T-211/02 Tideland Signal v Commission [EU:T:2002:232] paras 9 and 12; Joined Cases T-246/08 and T-332/08 Melli Bank v Council [EU:T:2009:266] paras 12–13 and 15; Order of 10 July 2009 in Case T-196/09 R TerreStar Europe v Commission [EU:T:2009:270] paras 21 and 23. 68 See, eg Case T-211/02 Tideland Signal v Commission [EU:T:2002:232] paras 9 and 12; Order of 10 July 2009 in Case T-196/09 R TerreStar Europe v Commission [EU:T:2009:270] paras 21 and 23. 69 See, potentially, Case T-380/10 Wabco Europe and Others v Commission [EU:T:2013:449] paras 22–23. 70 This approach is followed in interim relief litigation (see, eg Order of 23 April 2015 in Case C-35/15 P(R) Commission v Vanbreda Risk & Benefits [EU:C:2015:275] para 24) and may also appear relevant to the assessment of requests for expedited procedure. 71 CJ RoP, Art 133(3). See, eg Order of 11 October 2017 in Case C-441/17 Commission v Poland (Białowieża forest) [EU:C:2017:794] para 8; Order of 12 June 2018 in Case C-202/18 Rimšēvičs v Latvia [EU:C:2018:489] para 9. 72 GC RoP, Art 151(1) read in conjunction with Art 1(2)(a).

618 Expedition as possible,73 which seems to imply that the President of the General Court should promptly assign the case to a Chamber. The Chamber may also, in exceptional circumstances, decide to deal with a case under an expedited procedure of its own motion. In such a situation, the proposal has to come from the Judge-Rapporteur and the parties must be heard.74 (ii) Expedited Procedure Applied by the EU Courts of their Own Motion 5.210

Court of Justice. Since the procedural reforms, both Courts can decide to apply the expedited procedure of their own motion (cf para 5.187). With respect to the Court of Justice, pursuant to Article 133(3) of the CJ RoP, after hearing the parties, the Judge-Rapporteur and the Advocate General, the President of the Court may, exceptionally, take such a decision of his own motion. No condition is required. It remains at the entire discretion of the President of the Court to decide whether or not in a specific situation it is appropriate to deal with a case under the expedited procedure, provided that the recourse to such a procedural option does not become frequent. Recently, the President of the Court of Justice has twice used this possibility: in Commission v Poland (Białowieża forest), where imminent and potentially serious risks for the environment and biodiversity were present,75 and in Rimšēvičs v Latvia, concerning the decision of a national authority suspending the governor of the national central bank from office.76

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General Court. When the General Court decides to deal with a case under an expedited procedure, the only requirement consists of the existence of ‘exceptional circumstances’.77 Expedition was applied by the General Court of its own motion, eg in a public procurement case.78 (iii) Reasoning

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Court of Justice. At the Court of Justice, at present, only the final judgment or order closing the case contains explanations as to the decision on expedited procedure. Until recently, the Court of Justice used to publish its decisions to grant or reject a request for an expedited procedure in the form of a reasoned order, but this practice has now been abandoned.

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General Court. At the General Court, neither the decision on expedition nor the final judgment or order closing the case contains explanations as to the decision on expedition. No appeal can be filed against a decision to grant or reject a request for an expedited procedure (cf Section 3.6.2. Appealable Decisions).

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Written part of the procedure. The written pleadings of the main parties will be subject to various conditions. With respect to cases before the Court of Justice, the ordinary time limits for lodging the written pleadings are reduced, as is the length of those pleadings.79 The second exchange of pleadings will be subject to express authorisation; the filing of a reply and a rejoinder requires a

73 GC

RoP, Art 151(1). RoP, Art 151(2). of 11 October 2017 in Case C-441/17 Commission v Poland (Białowieża forest) [EU:C:2017:794] para 7. 76 Order of 12 June 2018 in Case C-202/18 Rimšēvičs v Latvia [EU:C:2018:489] para 8. 77 GC RoP, Art 151(2). 78 Case T-321/15 GSA and SGI v Parliament [EU:T:2015:834] para 23. 79 CJ PD, para 18. 74 GC

75 Order

Expedited Procedure 619 decision from the President80 having regard to the necessity of such pleadings.81 In this context, the Court of Justice has dismissed a claim alleging that the rights of defence of the defendant would be affected if the request for an expedited procedure were upheld.82 With respect to cases before the General Court, the decision of that Court to adjudicate under an expedited procedure may prescribe conditions as to the volume and presentation of the pleadings of the main parties, the subsequent conduct of the proceedings, or the pleas in law and arguments on which the General Court will be called upon to decide.83 In that regard, an abridged version of the pleadings may be requested (cf para 5.193).84 The written part of the procedure is in principle limited to one exchange of pleadings.85 Reply from the applicant and rejoinder from the defendant may be lodged only if the General Court allows them by way of measures of organisation of procedure.86 Moreover, it should be recalled that the President87 shall take account of the particular urgency in adjudicating on the action when setting any time limits in the context of cases dealt with under an expedited procedure88 (cf para 5.195). Non-compliance with the conditions set by the General Court may lead to the revocation of the decision to adjudicate under an expedited procedure, the proceedings then continuing in accordance with the ordinary procedure.89 Oral part of the procedure. The oral part will vary from the usual procedure. At the Court of Justice, the President will fix a date for the hearing immediately after the submission of the defence or, if the decision to apply expedited procedure is not made until after the defence has been lodged, once that decision has been taken. The President may, however, postpone the date of the hearing where it is necessary to undertake measures of inquiry or where measures of organisation of procedure so require.90 At the General Court, once the Court has approved an expedited procedure, the emphasis shall be on the oral part of the procedure.91 Therefore, it will be decided to open the oral part of the procedure as soon as possible after the presentation of the preliminary report by the Judge-Rapporteur92 and a hearing shall be organised promptly after the written part of the procedure has been closed.93 The General Court may nevertheless decide to rule without an oral part of the procedure where the main parties indicate, within a period prescribed by the President, that they have decided not to participate in a hearing and the General Court considers that it has sufficient information from the case file.94 Moreover, due to the nature of this procedure and especially the fact that time limits and length of pleadings are reduced, both Courts allow more flexible rules as to the production of new arguments and new evidence in the course of the oral part of the procedure (cf paras 4.334 and 4.337). However, each time, the party doing so must give reasons to justify the delay in producing such further arguments or evidence.95 80 cf para 1.36. 81 CJ RoP, Art 134; CJ PD, para 18. 82 Order of 15 November 2018 in Case C-619/18 Commission v Poland (independence of the Supreme Court) [EU:C:2018:910] para 24. 83 GC RoP, Art 151(3). 84 GC PR, para 215. 85 GC PR, para 221. 86 GC RoP, Arts 88–90 and 154(3). 87 cf para 1.61. 88 GC RoP, Art 154(4). 89 GC RoP, Art 151(4). 90 CJ RoP, Art 135(1). 91 GC PR, para 221. 92 GC RoP, Art 155(1). 93 GC PR, para 221. 94 GC RoP, Art 155(1); GC PR, para 221. 95 CJ RoP, Art 135(2); GC RoP, Art 155(2).

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620 Expedition 5.216

Effects on interveners. Interveners are also affected when a request for an expedited procedure is granted. Before the Court of Justice, a statement in intervention may be submitted only if the President considers this to be necessary.96 The same principle applies before the General Court to the filing of a statement in intervention and of the observations on such a statement.97 When setting the time limits for lodging these documents, the President takes account of the particular urgency in adjudicating on the action.98 Where the EU Courts have not authorised the lodging of a statement in intervention, the intervener may submit his observations only orally, if a hearing is organised.99 In any case, the intervener must accept the case as he finds it at the time of his intervention and, therefore, must bear the consequences on his procedural rights resulting from the decision to allow the expedited procedure.100

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Priority treatment. Under Article 153 of the GC RoP, by way of derogation from the principle that cases before the General Court are dealt with in the order in which they become ready for examination,101 cases on which the General Court has decided to adjudicate under an expedited procedure shall be given priority (cf Section 5.3.3. Priority Treatment). Although the CJ RoP do not contain a similar provision, it is submitted that a similar practice is followed.

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Relationship with a request for interim relief – principle. There is no correlation between the question whether to rule on the substance of a case under an expedited procedure and that of whether the interim measures applied for (cf Chapter 5.2. Interim Measures) in the same case are urgent in order to avoid serious harm to the party requesting them.102

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Interim relief and assessment of the request for expedited procedure. The fact that the party who filed a request for expedited procedure did not, in addition, lodge a request for interim relief does not prevent the Court of Justice from granting the request for an expedited procedure,103 since the object and the conditions related to these two procedures are not similar104 (cf para 5.205). Moreover, as regards the head of claim seeking that the Court adjudicate in the main case under an expedited procedure pursuant to Article 151 of the GC RoP, it should be noted that the Judge hearing an application for interim measures has no jurisdiction, in proceedings for interim measures, to take such a decision.105 Finally, the grant of a suspension of operation (as an interim measure) may even become a reason for the opposing party not to object to a request for an expedited procedure. Indeed, in that situation, the opposing party would himself have every interest in the main proceedings on the substance being closed within a short time, in order that the interim measures may be ended and the questions raised by the case may become the subject of a final decision.106 96 CJ RoP, Art 134(2); CJ PD, para 18. 97 GC RoP, Art 154(3). 98 GC RoP, Art 154(4). 99 CJ PD, para 37; GC PR, para 222. 100 In that regard, see Joined Cases C-248/15 P, C-254/15 P and C-260/15 P Maxcom v City Cycle Industries [EU:C:2017:62] paras 99–100 and 104–105. 101 GC RoP, Art 67(1). 102 Order of 22 March 2018 in Case C-576/17 P(R) Wall Street Systems UK v ECB [EU:C:2018:208] para 51; Order of 11 October 2017 in Case C-441/17 Commission v Poland (Białowieża forest) [EU:C:2017:794] para 15; Order of 15 November 2018 in Case C-619/18 Commission v Poland (independence of the Supreme Court) [EU:C:2018:910] para 27. On the complementary nature of these two procedures, see also Order of 21 September 2004 in Case C-317/04 Parliament v Council (agreement on passenger name records) [EU:C:2004:834] paras 12–13; Order of 21 September 2004 in Case C-318/04 Parliament v Council (agreement on passenger name records) [EU:C:2004:850] paras 14–15. 103 Order of 7 April 2016 in Case C-104/16 P Council v Front Polisario [EU:C:2016:232] para 16. 104 Order of 7 April 2016 in Case C-104/16 P Council v Front Polisario [EU:C:2016:232] para 18. 105 Order of 28 November 2018 in Case T-305/18 R Klyuyev v Council [EU:T:2018:849] para 118. 106 Order of 15 November 2018 in Case C-619/18 Commission v Poland (independence of the Supreme Court) [EU:C:2018:910] para 26.

Priority Treatment 621 Expedited procedure and assessment of the interim measure. The mere fact that the General Court decided to adjudicate on the substance of an action under an expedited procedure107 (or to reject such a request)108 cannot influence either the assessment of the urgency or the balancing of the interests concerned by the Judge hearing the application for interim measures. The relevant criteria of the existence of a ‘particular urgency’, which, under Article 151(1) of GC RoP, is to be satisfied if the Court is to adjudicate under an expedited procedure, are only partly the same as those which, according to case law, govern the assessment of the condition of urgency that must be satisfied in order to obtain such measures.109 Therefore, the Judge hearing an application for interim measures is not required to take into account, when examining urgency, the fact that a party has requested, in his main action, that a ruling be given under the expedited procedure pursuant to Article 152 of the GC RoP.110

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5.3.3. Priority Treatment Legal basis. Article 53(3) of the CJ RoP provides that the President of the Court of Justice may, in special circumstances, decide that a case be given priority over others. Similarly, Article 67(2) of the GC RoP provides for the exact same rule as a derogation from the rule according to which the General Court shall deal with the cases before it in the order in which they become ready for examination.111

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Competences. At the Court of Justice, the decision lies in the hands of the President of the Court of Justice, although this power is devolved to Presidents of Chamber in cases heard by Chambers of three or five Judges.112 At the General Court, pursuant to Article 67(2) of the GC RoP, the President may, in special circumstances, decide that a case be given priority over others. Although, according to Article 1(2)(b) of the GC RoP, when a case is already assigned to a formation of that Court, the term ‘President’ should be understood as designating the president of that formation, in practice, and due to the consequences attached to the application of the priority treatment (cf para 5.227), the President of the General Court is informed of the decision taken by the President of the Chamber and may intervene in the best interests of the Court.113 Moreover, the decision of the President of the Chamber is, normally, triggered by a proposal from the JudgeRapporteur.114 Normally, the decision on priority treatment is notified to the parties. However, being an internal decision with consequences on the work of the relevant Court and not on the procedural rights of the parties, the decision might not always be notified to the parties.

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107 Order of 9 July 2009 in Joined Cases T-246/08 and T-332/08 Melli Bank v Council [EU:T:2009:266]. 108 Order of 11 April 2003 in Case T-392/02 R Solvay Pharmaceuticals v Council [EU:T:2003:116] para 104. 109 Order of 19 December 2001 in Joined Cases T-195/01 R and T-207/01 R Government of Gibraltar v Commission [EU:T:2001:291] para 94. 110 Order of 22 March 2018 in Case C-576/17 P(R) Wall Street Systems UK v ECB [EU:C:2018:208] para 52. 111 GC RoP, Art 67(1). 112 cf para 1.36. 113 Pursuant to GC RoP, Art 10(2), the President of the General Court shall direct the judicial business and the administration of the General Court. Because the application of a priority treatment will have consequences on the organisation of the Court (agenda of the legal reviewers, the translators and the hearings will be modified), it seems appropriate that the President of that judicial body has a say in the implementation of the decision to apply priority treatment and thus avoid potential conflicts where one or more Chambers would decide that their cases should be given priority over all other cases of the Court. 114 See, eg Joined Cases T-131/16 and T-263/16 Belgium v Commission (excess profit exemption) [EU:T:2019:91] paras 36 and 48.

622 Expedition 5.223

Practice. There are no official data regarding the extent of the priority treatment’s use. It may well be applied where a case is sensitive and important, but not treated under an expedited procedure. Priority treatment may also be resorted to in the context of the partial renewal of the Courts that takes place every three years (cf paras 1.27 and 1.49); it may help ensure that the judgment is handed down before the departure of a Judge in the Chamber that heard the case and thus avoid the necessity of repeating the oral hearing. Priority treatment may be decided on at the beginning of a procedure (eg to avoid the effects of new national legislation which is the subject matter of an infringement action), during the procedure (eg to take into consideration a change in circumstances) or even at the end of the procedure (eg to speed up an overly long procedure or to avoid repeating the hearing in case of imminent departure of a Judge). Priority treatment may be combined with a decision to apply an expedited procedure,115 although this is rare. As to duration, for instance, in Council v Parliament (1986 budget),116 in which an action for annulment was brought against the general budget for 1986, the Court of Justice decided to grant the C ouncil’s request that the case should be given priority one day after its filing and ruled on this case in less than five months. However, the judgment in Government of Gibraltar and United Kingdom v Commission was only delivered 54 months after the case was brought before the General Court, even though the case was to be accorded priority treatment. It should be noted that in this case, the applicants requested priority treatment respectively nine and 10 months after the applications were lodged and the General Court granted these requests respectively two and 20 months after their filing.117

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No procedural requirements. No procedural requirement is foreseen in the Rules of Procedure since the decision to give a case priority over others is, in principle, entirely internal (the parties having no role to play in this process) and merely concerns case management. In practice, however, the parties sometimes request priority treatment when they have not filed a request for expedited procedure on time118 (cf para 5.192), when the case becomes urgent in the course of the Court proceedings119 or when the circumstances of the case may not be sufficient to satisfy the conditions for granting an expedited procedure (cf para 5.196 et seq). In these situations, the parties may lodge a separate document to provide reasons justifying priority treatment.120 In the old GC RoP of 1991,121 the provision on priority treatment was placed in the chapter on oral procedure. Theoretically, a decision to give priority to a case to speed up the procedural steps could thus only be taken at this stage. The new GC RoP of 2015 moved this provision to the chapter governing the procedure in direct actions. This modification thus broadens the scope of the application of p riority treatment, which can now be decided immediately after the lodging of a case.

115 See, eg Order of 11 October 2017 in Case C-441/17 Commission v Poland [EU:C:2017:794] paras 5–7. In that regard, see order of 20 November 2017 in Case C-441/17 R Commission v Poland [EU:C:2017:877] para 77. 116 Case C-34/86 Council v Parliament (1986 budget) [EU:C:1986:291]. For a more recent illustration but in the context of a preliminary ruling procedure, see Case C-256/09 Purrucker, where priority treatment was applied (see Opinion of AG Sharpston in Case C-256/09 Purrucker [EU:C:2010:296] para 84); the duration was approximately one year. See also Case C-345/09 Van Delft [EU:C:2010:610]. 117 Joined Cases T-211/04 and T-215/04 Government of Gibraltar and United Kingdom v Commission [EU:T:2008:595] paras 31, 37 and 39. 118 See, eg Order of 20 July 2016 in Case T-718/15 R PTC Therapeutics International v EMA [EU:T:2016:425] para 89. 119 See, eg Order of 23 November 2018 in Case T-733/17 R GMPO v Commission [EU:T:2018:839] para 62; Order of 21 July 2017 in Case T-130/17 R Polskie Górnictwo Naftowe i Gazownictwo v Commission [EU:T:2017:541] para 47; Order of 21 July 2017 in Case T-883/16 R Poland v Commission (OPAL pipeline) [EU:T:2017:542] para 46; Order of 21 July 2017 in Case T-849/16 R PGNiG Supply & Trading v Commission [EU:T:2017:544] para 48. 120 See, eg Order of 11 October 2017 in Case C-441/17 Commission v Poland (Białowieża forest) [EU:C:2017:794] paras 5–6; Case T-544/13 RENV Dyson v Commission [EU:T:2018:761] paras 24–25. 121 Old GC RoP of 1991 Art 55(2).

Priority Treatment 623 Substantive requirements. The only substantive requirement indicated in the Rules of Procedure is the existence of ‘special circumstances’.122 Such a criterion allows for a wide margin of discretion for the EU Courts’ Presidents, who can take into account both external elements (eg change in circumstances, legislative developments) and internal elements (eg overly long proceedings, departure of a Judge after deliberation). Both the parties and the Judge-Rapporteur may draw the attention of the Presidents to facts that could plead for priority treatment, such as new circumstances that make the case urgent during the judicial procedure or the rejection of a request for an expedited procedure.123

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Illustrations. While no formal reasoning is given when priority treatment is applied or when a request for it is rejected, the considerations behind its application may sometimes be discerned from the Courts’ judgments. For instance, in Commission v Poland (Białowieża forest), it was said that

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specifically in order to minimise as far as possible the period during which the active forest management operations at issue [were] suspended pending the judgment of the Court in the main proceedings, and bearing in mind the Republic of Poland’s arguments that the need for the Court to give judgment in the action for failure to fulfil obligations [was] urgent, not only did the President of the Court decide … to grant the Commission’s application … to be given priority treatment … but he also decided of his own motion … that this case was to be determined under the expedited procedure.124

In Microban, the General Court decided to give the action (filed on 7 June 2010) priority treatment and annulled the contested Commission decision on 25 October 2011.125 A possible reason for priority treatment was that, on 1 November 2011, the contested decision would have been implemented, entailing the withdrawal from the market all foodstuff containing triclosan, an important product of the applicants. Besides, the General Court might have wanted to swiftly give guidance on a novel issue of admissibility, related to the qualification of decisions as regulatory acts (cf para 3.186). Consequences. The decision to give a case priority over others only bears internal consequences. Unlike expedited procedure, priority treatment will not shorten the time limits set out in the Rules of Procedure to lodge pleadings or limit the rights of interveners. It merely puts the case on top of the agenda of a Chamber and gives priority in the schedule regarding translation and the hearing.

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No duty to state reasons. There is no legal obligation to state the reasons for a decision to grant or reject a request to give a case priority over others. At most, the parties are notified of such a decision, and a reference to priority treatment is made in the final judgment or order closing the case. The decision regarding priority treatment cannot be appealed.

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Relationship with expedited procedure. Article 153 of the GC RoP specifies that, by way of derogation from the principle that cases before the General Court are dealt with in the order in which they become ready for examination,126 cases on which the General Court has decided to adjudicate under an expedited procedure shall be given priority (cf para 5.217). Although the CJ RoP do not contain a similar provision, the Court of Justice’s practice is similar. It should also be

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122 CJ

RoP, Art 53(3); GC RoP, Art 67(2). eg Case T-257/07 France v Commission (prion disease) [EU:T:2011:444] para 61. 124 Order of 20 November 2017 in Case C-441/17 R Commission v Poland (Białowieża forest) [EU:C:2017:877] para 77. 125 Case T-262/10 Microban International and Microban (Europe) v Commission [EU:T:2011:623]. 126 GC RoP, Art 67(1). 123 See,

624 Expedition noted that the rejection of a request for an expedited procedure may lead the EU Courts to apply priority treatment if they recognise that a swift decision may nonetheless be expedient.127 5.230

Relationship with interim relief. In the assessment of the risk of suffering an alleged harm, the interim relief Judge of the General Court has regularly taken into consideration the possibility for the Chamber hearing the main action to decide on priority treatment. The fact that the risk to suffer harm, which is not immediate or certain enough at the time of the adoption of the interim order to grant the requested suspension of operation (cf Chapter 5.2. Interim Measures), becomes more plausible over time may constitute special circumstances allowing for priority treatment.128

127 See, eg Case T-257/07 France v Commission (prion disease) [EU:T:2011:444] para 61. 128 See, eg Order of 23 November 2018 in Case T-733/17 R GMPO v Commission [EU:T:2018:839] para 62; Order of 21 July 2017 in Case T-130/17 R Polskie Górnictwo Naftowe i Gazownictwo v Commission [EU:T:2017:541] para 47; Order of 21 July 2017 in Case T-883/16 R Poland v Commission (OPAL pipeline) [EU:T:2017:542] para 46; Order of 21 July 2017 in Case T-849/16 R PGNiG Supply & Trading v Commission [EU:T:2017:544] para 48.

5.4. Interventions [written by Viktor Luszcz1]

5.4.1. Overview Notion. Formally, intervention is defined in an EU law context as the support of one of the main parties to the proceedings by a third party not directly involved in the litigation, with a view to defending his own interests. The intervener does not seek direct protection of his rights and, save in intellectual property cases, cannot raise claims not applied for by the party he is supporting. The intervener’s purpose in siding with one of the parties is to avoid the legal or economic disadvantages that the success of the opposite party would entail.2

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Structure of this chapter. Interventions are only possible in contentious proceedings, that is, in direct actions3 and appeals, as well as in intellectual property cases4 (Section 5.4.2. Cases in which Intervention Is Possible). While Member States and EU institutions have an unlimited right to intervene in any such case, specific standing requirements apply to non-privileged interveners (Section 5.4.3. Who Can Intervene?). Applications to intervene are subject to specific time limits and formal requirements, and are decided by the Courts in a procedural decision or in a formal order (cf Section 5.4.4. Time Limits, Formal Requirements, Procedure). The main parties may request confidential treatment of information contained in their procedural documents in respect of the intervener (cf Section 5.4.5. Confidentiality Issues). In direct actions and appeals, the rights of interveners are substantially limited as compared to those of the main parties; in intellectual property cases, interveners enjoy the same rights as the main parties (cf Section 5.4.6. Rights of the Intervener). The Courts decide on costs to be borne or recovered by interveners (cf Section 5.4.7. Costs in Interventions).

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Legal basis. The procedural provisions applicable to interventions are foreseen in Article 40 of the Statute, Articles 129–132 of the Rules of Procedure of the Court of Justice (CJ RoP) (interventions in direct actions before the Court of Justice), Article 190(1)–(2) of the CJ RoP (interventions in appeals), as well as in Articles 142–145 of the Rules of Procedure of the General Court (GC RoP) (interventions in direct actions before the General Court) and Articles 173, 179 and 182–185 of the GC RoP (interventions in intellectual property cases). The General Court’s rules were modelled closely on those of the Court of Justice and their effect is identical in most situations, except in intellectual property cases, which are governed by specific rules.

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1 Partner, Danubia Legal – Luszcz Law Firm. Attorney at law specialising in European and Hungarian competition and intellectual property law, member of the Budapest Bar. Previously worked 11 years as a référendaire at the General Court of the EU. 2 H-W Rengeling, A Middeke and M Gellerman, Handbuch des Rechtsschutzes in der Europäischen Union (Beck, München, 2003) 395; M Pechstein, EU/EG Prozessrecht (Mohr Siebeck, Tübingen, 2007) 103; see also A Dashwood, ‘Intervention in cases before the Court of Justice of the European Communities’ The Law Society’s Gazette (1983/3) 147–148. 3 cf para 4.100. 4 cf para 3.519.

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Intervention and third-party proceedings. Intervention is the primary and, in most cases, the only avenue for a third party to protect his interests and put forward his arguments. While it is in principle possible to institute third-party proceedings after the delivery of a judgment or order which is prejudicial to the rights of a third party (cf para 5.462), such an application is only admissible if the third party demonstrates that he was unable to take part in the original case.5 This condition is not fulfilled if the third party could have discerned his interest in the litigation on the basis of the subject matter and heads of claim published in the Official Journal in the notice on the initiation of a new case (cf para 4.200, cf paras 5.262–5.264) and thus intervened in the procedure leading up to the judgment.6

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Intervention is always voluntary, but the Courts may ask for information or materials from third parties. Before the EU Courts, unlike in the procedural systems of some Member States, no party can be compelled to participate in the proceedings as an intervener, either by the main parties or by the Courts.7 Furthermore, there is no mechanism for the appointment of an amicus curiae. It might, however, occur to one of the parties or to the relevant Court that the participation in the proceedings of a Member State or an EU institution or body would be useful.8 In such situations, the Courts may, under Article 24(2) of the Statute, request a Member State, or an EU institution or body, to supply all information necessary for the proceedings (cf para 4.275). The parties to the case may also suggest that the Courts issue such a request (cf para 5.32) or may point out the necessity of the production of certain documents, whereby they may in practice obtain a certain degree of participation of a Member State or an EU institution or body that is neither a main party nor an intervener to the case.

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Common rules on procedure apply to interventions. The common rules on procedure related to the language of the case, to representation of the parties, to lodging, service and removal of documents, as well as those on calculation of deadlines, are applicable to interventions (cf Chapter 4.1. Common Rules on Procedure). Furthermore, the provisions on the allocation and quantification of costs, as explained in Chapter 5.10. Costs and Legal Aid, also apply. Specific provisions relating to interventions that differ from these general rules are indicated in this chapter.

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Interventions are only possible in contentious proceedings: direct actions, intellectual property cases, appeals. The Statute imposes no limitation as to the type of proceedings in which intervention is possible, except that it must be a ‘case’. This term, as used in the context of Article 40 of the Statute, has been interpreted by the Court of Justice as implying a contentious procedure, designed to resolve a dispute.9 The Court of Justice thus held that intervention, in its

5 Statute, Art 42; CJ RoP, Art 157(1)(c); GC RoP, Art 167(1)(c). 6 Joined Cases C-9/60 and C-12/60 TO Belgium v Vloeberghs and High authority [EU:C:1962:25]; Order of 26 March 1992 in Case T-35/89 TO I Ascasibar Zubizarreta and Others v Alessandro Albani and Others [EU:T:1992:47]. 7 Order of 10 December 1969 in Case C-12/69 Wonnerth v Commission [EU:C:1969:70]. 8 For instance, where an action for annulment is brought by a beneficiary of State aid against a Commission decision declaring that aid incompatible with the common market, the Member State having granted the aid is usually well placed to submit documentation in support of the applicant, even if that Member State does not challenge the decision on its own or intervene in support of the applicant. 9 Order of 30 March 2004 in Case C-453/03 ABNA and Others [not reported] para 14; Order of 9 June 2006 in Case C-305/05 Ordre des barreaux francophones et germanophone and Others [not reported] para 7.

Cases in Which Intervention is Possible 627 formal sense, was not possible in preliminary rulings, as the latter did not envisage contentious proceedings but prescribed a procedure whose aim was to insure a uniform interpretation of EU law by cooperation between the Court of Justice and the national courts.10 The structure of the CJ RoP of 2012 reflects this case law. Indeed, the place of the provisions on interventions within the CJ RoP makes it clear that, with respect to proceedings before the Court of Justice, interventions are possible in direct actions and in appeals, whereas interventions are excluded in preliminary rulings and in proceedings related to Opinions on draft international agreements.11 With respect to proceedings before the General Court, interventions are possible in direct actions and in intellectual property cases, that is, in all types of actions on which the General Court currently has the power to rule. Furthermore, before both EU Courts, interventions are also allowed in incidental contentious proceedings,12 such as proceedings for interim measures – notwithstanding the urgency to adopt a decision,13 or proceedings for interpretation of a judgment.14 It is also worth mentioning that, in appeal proceedings, a party may also be admitted as an intervener even where he has not been involved at first instance.15 No intervention in preliminary rulings, but parties may submit observations if they join the case before the national court. Under Article 23(2) of the Statute, the parties to the main case before the national court that makes the preliminary reference may submit observations in the procedure before the Court of Justice. Therefore, those with an interest in a case likely to come before the Court of Justice by way of preliminary reference may, depending on the national procedural law applicable in the referring court, be able to ensure their participation in the proceedings before the Court of Justice by becoming a party to the national proceedings.16 Even if participation in a case in this way does not, strictly speaking, amount to ‘intervention’ in the case before the Court, it does yield the advantage of being allowed to submit written observations on the preliminary reference.17 In principle, all the parties to the national proceedings are automatically parties for the purposes of the proceedings before the Court of Justice, and there is no separate standing requirement as a matter of EU law; national procedural law is determinative. If the referring order qualifies an intervener to the main case as a party, he will be treated as a party by the Court of Justice as well. It may even be possible to join as a party to national proceedings after a reference has been made to the Court of Justice and then take part in the procedure before the latter. There is a thin line between genuine and legitimate (if tardy) intervention in national proceedings and interventions in national procedure aimed solely at circumventing the absence of a general mechanism for intervention in the Court of Justice as regards preliminary references.18 10 Order of 26 February 1996 in Case C-181/95 Biogen [EU:C:1996:63] para 6; Order of 12 September 2007 in Case C-73/07 Tietosuojavaltuutettu [EU:C:2007:507] paras 9-10. 11 The provisions on interventions (CJ RoP, Arts 129–132) are placed not in Title II (Common procedural provisions), but in Title IV (Direct actions). A reference to these provisions is made in CJ RoP, Art 190(1)–(2) in Title V (Appeals). Conversely, no reference to the provisions on interventions is made in Title III (References for preliminary ruling) and Title VII (Requests for Opinions). CJ PD, para 38 explicitly excludes interventions in preliminary rulings. 12 That is because the rules on interim measures (cf Chapter 5.2. of this book) and on applications relating to judgments and orders (cf Chapter 5.11. of this book) are placed under the title ‘Direct actions in both Rules of Procedure’, along with the provisions on interventions. 13 Order of 15 October 1974 in Case C-71/74 R and RR Fruit- en Groentenimporthandel v Commission [EU:C:1974:103]; Order of 14 December 2000 in Case T-5/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [EU:T:2000:309]; Order of 26 July 2004 in Case T-201/04 R Microsoft v Commission [EU:T:2004:246]. 14 Order of 29 September 1983 in Case C-9/81 INT Court of Auditors v Williams [EU:C:1983:252]. 15 CJ RoP, Art 190(1); Joined Cases C-241/91 P and C-242/91 P RTE and ITP v Commission [EU:C:1995:98] para 3. 16 Order of 26 February 1996 in Case C-181/95 Biogen [EU:C:1996:63] para 6. 17 Statute, Art 23(2). 18 Article 23(2) of the Statute foresees only ‘the parties’ presenting observations in addition to Member States and EU institutions or bodies.

5.238

628 Interventions In Premier League, an order made by the national court purporting to join a dditional parties to the proceedings ‘limited to making written and oral submissions to the Court of Justice’ in the context of a preliminary reference from the same court – but not, apparently, before that national court itself – was not accepted by the Court of Justice as founding a right of the parties in question to participate in the proceedings before the Court of Justice.19

5.4.3. Who Can Intervene? 5.4.3.1. Privileged Interveners 5.239

Member States and EU institutions. Member States and EU institutions may intervene in proceedings before the Court of Justice and the General Court20 irrespective of the subject matter of the litigation and without establishing an interest in its outcome. Member States and EU institutions are also permitted to intervene in cases between Member States, between EU institutions or between EU institutions and Member States,21 in which natural or legal persons (other than EU bodies, offices and agencies) are not allowed to intervene.

5.240

EEA EFTA States and the EFTA Surveillance Authority. EEA EFTA States, that is, European Free Trade Area (EFTA) States that are parties to the European Economic Area (EEA) Agreement, as well as the EFTA Surveillance Authority are entitled to intervene in cases before the Court of Justice where one of the fields of application of the EEA Agreement is concerned. The Court’s decision allowing intervention is automatic. In cases outside the scope of the EEA Agreement, they may intervene as any non-privileged applicant to intervene, that is, by showing an interest in the outcome of the case (cf para 5.245).

5.4.3.2. Non-privileged Applicants to Intervene 5.241

Non-privileged applicants to intervene must establish an interest in the result of the case. While privileged interveners may intervene without showing any interest in the case and are admitted to the case by an automatic decision of the relevant Court,22 non-privileged applicants to intervene must show an interest in the result of the case in order to be allowed to intervene. The relevant EU Court decides in an order whether to allow their intervention or not.23 The present subsection concerns the standing of non-privileged persons to intervene in direct actions and in appeals; different rules apply in intellectual property cases (cf Subsection 5.4.3.3).

5.242

Bodies, offices and agencies of the EU. In the context of interventions, bodies, offices and agencies of the EU are not assimilated to EU institutions.24 By virtue of Article 40(2) of the S tatute, such bodies are only allowed to intervene if they can establish an interest in the outcome of the case (cf para 5.245 et seq), thus they are non-privileged interveners. Bodies, offices and agencies have

19 Order of 16 December 2009 in Case C-403/08 Football Association Premier League and Others [not reported]. 20 Statute, Art 40(1). 21 Statute, Art 40(2). 22 CJ RoP, Art 131(2) and (4); GC RoP, Art 144(4). Where the intervention raises confidentiality issues, the Courts adopt orders. 23 CJ RoP, Art 131(3); GC RoP, Art 144(5). 24 As listed in Art 13(1) TEU.

Who Can Intervene? 629 one special right, though: they may intervene in cases between Member States, between EU institutions, or between EU institutions and Member States, as opposed to other non-privileged third parties, who are not entitled to intervene in such cases.25 Natural or legal persons, regions, third countries. Article 40(2) of the Statute also foresees that ‘any other person’, ie a person other than a Member State or an EU institution or body, may intervene if that person establishes ‘an interest in the result of the case’. It follows that natural and legal persons and associations are only authorised to intervene if they show such an interest. The same condition applies to subnational territorial entities (eg federal states or autonomous regions) of Member States that wish to intervene, since they cannot be assimilated to Member States. Third countries also need to show an interest in the result of the case in order to be admitted to intervene.26 Finally, when the case does not concern the application of the EEA Agreement, EEA EFTA States and the EFTA Surveillance Authority are placed on the same footing as other non-privileged applicants to intervene, that is, they must show such an interest as well.

5.243

(i) Legal personality not required General. Although, with respect to non-privileged applicants to intervene, the Statute uses the term ‘person’, legal personality is not a condition for intervention. The Court of Justice held that ‘bodies not having legal personalities may be permitted to intervene if they display the characteristics which are at the foundation of such personality, in particular, the ability … to undertake autonomous action and to assume liability’.27 Thus, the Court of Justice admitted, for example, the intervention of the Consultative Committee of the Bars and Law Societies of the European Communities, a body lacking legal personality.28

5.244

(ii) Direct and existing interest in the result of the case General. To obtain leave to intervene, any non-privileged applicant to intervene has to plausibly demonstrate that he has a direct and existing interest in the result of the case.29 When the application for leave to intervene is made in proceedings for interim measures, the interest in the result of the case must be understood as being an interest in the result of the interim proceedings.30

5.245

What ‘interest’ is relevant? Various interests may be of relevance. In principle, intervention is allowed where the intervener’s legal position or economic situation could be affected by the result

5.246

25 Statute, Art 40(2). 26 See Order of 23 February 1983 in Joined Cases C-91/82 and C-200/82 Chris International Foods v Commission [not reported]: the Dominican Republic was permitted to intervene in an action for annulment of a Commission decision excluding certain bananas originating in African, Caribbean and Pacific countries from preferential treatment in the UK, upon showing that its intervention was aimed at protecting traditional Dominican market in the UK. 27 Order of 11 December 1973 in Joined Cases C-41/73, C-43/73 to C-48/73, C-50/73, C-111/73, C-113/73 and C-114/73 Générale Sucrière and Others v Commission [EU:C:1973:151] para 3. 28 Order of 7 May 1980 in Case C-155/79 AM&S Europe v Commission [not reported]; see also KPE Lasok, The European Court of Justice – Practice and Procedure (Butterworths, Dublin, 1994) 155. 29 Order of 25 November 1964 in Case C-111/63 Lemmerz-Werke v High Authority [EU:C:1964:82]; Order of 12 April 1978 in Joined Cases C-116/77, C-124/77 and C-143/77 Amylum and Others v Council and Commission [EU:C:1978:81] paras 7 and 9; Order of 3 June 1999 in Case T-138/98 ACAV and Others v Council [EU:T:1999:121] para 14. 30 Order of 7 July 1998 in Case T-65/98 R Van den Bergh Foods v Commission [EU:T:1998:155] paras 26–27; Order of 26 July 2004 in Case T-201/04 R Microsoft v Commission [EU:T:2004:246] para 33.

630 Interventions of the case.31 The General Court has, for example, ruled that the interest of keeping business information secret from competitors seeking access to Commission documents is a sufficient ground for granting leave to intervene.32 While political and moral interests might be relevant, applications to intervene based to a large extent on such interests have been rejected in several cases for other reasons.33 However, a public interest in environmental protection has been implicitly recognised by the General Court as justifying intervention, insofar as the applicant to intervene represents that interest.34 5.247

‘Result of the case’. The requirement that the potential intervener have an interest in the ‘result of the case’ concerns the ruling on the forms of order sought by one of the main parties, ie the operative part of the final judgment.35 Therefore, the demonstration of the interest must be related to the heads of claim and not merely flow from the abstract legal arguments put forward by the main parties.36 A person’s interest in a particular plea raised by one of the parties succeeding or failing is an insufficient ground for intervening if the operative part of the judgment to be delivered has no bearing on that person’s legal position or economic situation.37

5.248

The interest must be ‘direct and existing’. The potential intervener’s interest must also be ‘direct and existing’. A merely indirect interest in the result of a case by reason of similarities between the situation of the applicant to intervene and that of one of the parties is insufficient to obtain leave to intervene.38 Therefore, in the context of actions for annulment and of staff cases with an annulment claim, where an institution or body adopts parallel decisions addressed to different persons, one person cannot intervene in a Court case brought by another person merely by reason of the similarity of the situations. This rule applies even if the decisions concerning several persons, whose individual situations have been examined by the institution or body, are technically incorporated into a single decision (see, eg para 5.251). In such a case, any applicant may only request that the ‘bundle of decisions’ be annulled insofar as that applicant is concerned (cf para 3.208). The mere possibility that the institution or body would, in case of that applicant’s success, and under the influence of the relevant Court’s reasoning in the judgment, reconsider its position as regards the other persons affected by the decision does not imply that the latter have the direct and existing interest necessary to obtain leave to intervene; their interest is, at most, an indirect

31 Order of 29 May 1997 in Case T-89/96 British Steel v Commission [EU:T:1997:77] paras 20–21. 32 Order of 6 March 2009 in Case T-237/05 Éditions Odile Jacob v Commission [EU:T:2009:58]; Order of 13 March 2009 in Case T-344/08 EnBW Energie Baden-Würtemberg v Commission [not reported]. 33 See, in particular, Order of 8 April 1981 in Joined Cases C-197/80 to C-200/80, C-243/80, C-245/80 and C-247/80 Ludwigshafener Walzmühle v Commission [EU:C:1981:90] paras 8–9; Order of 30 January 2009 in Case T-345/07 Banque Postale v Commission [not reported]. 34 Order of 16 February 2005 in Case T-37/04 Região autónoma dos Açores v Council [not reported]. Seas at Risk Federation, WWF-World Wide Fund for Nature and Greenpeace Council were allowed to intervene. 35 Order of 4 February 2004 in Case T-14/00 Coöperatieve Aan- en Verkoopvereniging Ulestraten, Schimmert en Hulsberg and Others v Commission [EU:T:2004:32] para 11; Order of 11 March 2008 in Case T-80/06 Budapesti Erőmű v Commission [EU:T:2008:65] para 8. 36 Order of 17 June 1997 in Joined Cases C-151/97 P(I) and C-157/97 P(I) National Power and PowerGen v British Coal and Commission [EU:C:1997:307] para 53. See also Order of 4 February 2004 in Case T-14/00 Coöperatieve Aan- en Verkoopvereniging Ulestraten, Schimmert en Hulsberg and Others v Commission [EU:T:2004:32] para 11. 37 Order of 17 June 1997 in Joined Cases C-151/97 P(I) and C-157/97 P(I) National Power and PowerGen v British Coal and Commission [EU:C:1997:307] para 57. 38 Order of 15 November 1993 in Case C-76/93 P Scaramuzza v Commission [EU:C:1993:881] para 11; Order of 15 June 1993 in Joined Cases T-97/92 and T-111/92 Rijnoudt and Hocken v Commission [EU:T:1993:46] para 22; Order of 8 December 1993 in Case T-87/92 Kruidvat v Commission [EU:T:1993:113] para 12; Order of 20 March 1998 in Case T-191/96 CAS Succhi di Frutta v Commission [EU:T:1998:60] para 28; Order of 25 February 2003 in Case T-15/02 BASF v Commission [EU:T:2003:38] para 27.

Who Can Intervene? 631 and potential one.39 The appropriate course in such circumstances will be to bring a separate action for annulment, and intervention is no substitute for such a separate action. Direct and existing interest in actions for damages? A consequence of the need for a direct and existing interest in the outcome of a case is that intervention of non-privileged interveners is difficult to conceive in actions for damages. As the form of order sought by the applicant is directed towards compensation for damage caused by an institution or body, a potential intervener will not have a direct and existing interest in the outcome of the litigation but, at most, an indirect one in a ruling which might influence the institution or body to deal more favourably with his own, similar, situation. Such an interest is, however, insufficient to obtain leave to intervene.40 The difference in the assessment of applications to intervene in actions for annulment and in actions for damages was highlighted by the Kazchrome v Council and Commission case. Kazchrome, the applicant, both requested the annulment of the contested anti-dumping regulation and applied for damages. The General Court granted Euralliage (an association) leave to intervene in support of the Council and the Commission only in respect of the claim for annulment, whereas it rejected its application to intervene in respect of the damages claim, on the ground that the fact that the Union’s liability is incurred had no bearing on Euralliage’s personal situation or on that of its members.41

5.249

‘Direct and existing interest’ and ‘direct and individual concern’. The ‘direct and existing interest’ of the prospective intervener in the result of the case is distinct from the ‘direct and individual concern’ of the applicant, as examined in the context of standing to bring actions for annulment (cf para 3.136).42 The fact that a natural or legal person is directly and individually concerned by an act and therefore has his own avenue to challenge it does not imply that that person can obtain leave to intervene in a case brought against the same act by another person.43

5.250

Examples: antitrust. As regards antitrust cases, the General Court has consistently held that persons who compete, on the affected product market, with the author of a practice found to infringe Article 101 or 102 TFEU by a Commission decision automatically establish a direct and existing interest in the result of the case brought against that decision.44 Likewise, where a complaint alleging infringement of EU antitrust rules is rejected and the complainant challenges that decision before the General Court, the undertaking complained against has a direct and existing interest in the outcome of the case and is therefore allowed to intervene.45 However, where the decision imposing sanctions is addressed to several unrelated companies, a particular company does not have a direct and existing interest as to the outcome of the cases brought by other, unrelated companies, for each company may only request the decision to be annulled as far as it is concerned.

5.251

Examples: mergers. Where a competitor of the entity created by the merger or acquisition brings an action for annulment against the Commission decision approving the concentration,

5.252

39 Order of 4 February 2004 in Case T-14/00 Coöperatieve Aan- en Verkoopvereniging Ulestraten, Schimmert en Hulsberg and Others v Commission [EU:T:2004:32] paras 14–17. 40 See, eg Order of 7 March 1997 in Case T-184/95 Dorsch Consult v Council [EU:T:1997:30]. 41 Order of 19 January 2009 in Case T-107/08 Kazchrome v Council and Commission [not reported] paras 11–12. 42 Art 263(4) TFEU. 43 Order of 4 February 2004 in Case T-14/00 Coöperatieve Aan- en Verkoopvereniging Ulestraten, Schimmert en Hulsberg and Others v Commission [EU:T:2004:32] para 19. 44 Order of 23 July 1993 in Case T-24/93 Compagnie maritime belge transports and Compagnie maritime belge v Commission [not reported] para 5; Order of 6 May 2004 in Case T-271/03 Deutsche Telekom v Commission [not reported] para 2; Order of 20 November 2008 in Case T-167/08 Microsoft v Commission [EU:T:2008:521] para 70. 45 See, eg Order of 30 March 2009 in Case T-427/08 CEAHR v Commission [not reported].

632 Interventions the merging companies are allowed to intervene in support of the Commission.46 Where the merging entities challenge the Commission decision blocking the merger, their competitors have a direct and existing interest in the outcome of the litigation and are therefore allowed to support the Commission as interveners.47 5.253

Examples: State aid. The same solution as regards competitors applies mutatis mutandis in State aid cases. For instance, where a competitor of the beneficiary of aid brings an action for annulment against the Commission’s decision approving that aid, other competitors of the beneficiary are allowed to intervene in support of the applicant,48 while a beneficiary of the aid may intervene in support of the Commission. The possibility of intervening in State aid cases is, however, significantly limited by the Statute’s provision according to which only Member States or institutions are allowed to intervene in a litigation opposing Member States and institutions (cf para 5.239–5.242).49 Any decision concerning the application of Article 107 TFEU is always addressed to the Member State granting the aid at issue. It follows that, if that Member State challenges the decision before the General Court, interested third parties, such as beneficiaries of the aid measure or their competitors, will not be able to obtain leave to intervene. Nonetheless, if the action for annulment of the Commission decision has been brought by a subnational entity, such as a particular region or federal state, that had granted the subsidy found contrary to Article 107 TFEU, intervention of private parties is possible.50 (iii) Associations and Non-Governmental Organisations

5.254

General. Associations and non-governmental organisations may represent a particular economic sector or a segment of civic society. The underlying rationale for allowing such organisations to intervene is threefold. First, in their pleadings, they may well put forward arguments pertaining to the general effects of the contested act which are economically unimportant or indifferent for the applicant, and consequently do not appear in the applicant’s pleadings. Their arguments may also shed light on the possible impact of the Courts’ ruling on the sector concerned. The reasoning put forward by associations may thus well add further useful considerations to the assessment carried out by the Courts.51 Secondly, the part of the final judgment’s reasoning that responds to the arguments put forward by the associations or non-governmental organisations helps in explaining the grounds of the ruling to the sector concerned, thereby facilitating its acceptance and making its application easier.52 Thirdly, allowing such bodies to intervene helps avoid multiple individual interventions which would compromise the effectiveness and proper course of the procedure.53

46 Order of 4 February 2005 in Case T-464/04 Impala v Commission [not reported] see the interventions of Sony and Bertelsman, the undertakings creating the joint venture approved by the Commission decision whose annulment was sought. 47 Order of 13 June 2005 in Case T-87/05 EDP v Commission [not reported]. 48 See, eg Order of 12 June 1995 in Case T-371/94 British Airways v Commission [not reported], where Maersk Air, a competitor of the beneficiary of approved State aid, was allowed to intervene. 49 Statute, Art 40(2). 50 See Order of 15 June 2008 in Case T-394/08 Regione Autonoma della Sardegna v Commission [EU:T:2009:203], where individual beneficiaries of aid were allowed to intervene in support of Sardinia. 51 K Hasselbach, ‘Der Schutz von Verbandsinteressen vor dem EuGH’ Zeitschrift für Zivilprozess (1996/2) 205. 52 K Hasselbach, ‘Der Schutz von Verbandsinteressen vor dem EuGH’ Zeitschrift für Zivilprozess (1996/2) 204. 53 Order of 17 June 1997 in Joined Cases C-151/97 P(I) and C-157/97 P(I) National Power and PowerGen v British Coal and Commission [EU:C:1997:307] para 66; Order of 26 July 2004 in Case T-201/04 R Microsoft v Commission [EU:T:2004:246] para 38.

Who Can Intervene? 633 Representative associations have a broader right to intervene. The Courts distinguish between representative associations and other legal persons as regards the conditions for granting leave to intervene.54 Representative associations benefit from a broader interpretation of the right to intervene. In particular, the condition that a direct and existing interest must be shown in relation to the heads of claim raised by the main parties and not to the latter’s abstract legal arguments (cf para 5.247) is waived in respect of representative associations: such associations, the object of which is to protect their members, are allowed to intervene upon showing that the case at hand raises questions of principle liable to affect their members.55

5.255

When is an association ‘representative’? For an association to be considered ‘representative’, it must first represent an appreciable number of natural or legal persons belonging to the sector concerned.56 In competition and anti-dumping cases, proof related to this condition is normally accomplished by submitting evidence concerning the number of undertakings represented and their importance in the sector concerned.57 Trade unions operating at the EU institutions are deemed to be representative of EU staff.58 Secondly, the association’s object must be to protect its members’ interest; this is normally established by submitting excerpts of the association’s statutes showing the existence of such an objective.59 In any event, the application to intervene must provide detailed reasoning as regards how the Courts’ ruling on the questions of principle raised by the case would affect the functioning of the sector concerned and demonstrate that the interests of the association’s members may be affected to an appreciable extent by the forthcoming judgment.60

5.256

Associations’ right to intervene based on their members’ right. Independently of satisfying the above conditions (cf para 5.256), both representative and non-representative associations may intervene if at least some of their members could be individually allowed to intervene, in other words, if the latter have a direct and existing interest in the outcome of the litigation.61 However, if a representative association intends to obtain leave to intervene by referring to questions of principle liable to affect its members (cf para 5.255), the demonstration provided in its application to intervene must concern the existence of such questions of principle and not some members’ direct and existing interest in the outcome of the litigation. In particular, in Banque Postale v Commission, where representative associations applied to intervene which, however, defined their interest in the litigation not in relation to questions of principle, but to the heads of claim of the applicant, the General Court refused to grant leave to intervene. It found that the adverse effects the members were claimed to incur in the event of the application’s dismissal were a possible but not necessary consequence of the contested decision’s continued application, and the associations’ concern thus fell short of a direct and existing interest.62

5.257

54 Order of 20 November 2008 in Case T-167/08 Microsoft v Commission [EU:T:2008:521] para 40. 55 Order of 17 June 1997 in Joined Cases C-151/97 P(I) and C-157/97 P(I) National Power and PowerGen v British Coal and Commission [EU:C:1997:307] para 66; ECJ (order 28 September 1998) Case C-151/98 P Pharos v Commission [EU:C:1998:440] para 6; Order of 28 May 2001 in Case T-53/01 R Poste Italiane v Commission [EU:T:2001:143] para 51. 56 Order of 8 December 1993 in Case T-87/92 Kruidvat v Commission [EU:T:1993:113] para 14; Order of 26 July 2004 in Case T-201/04 R Microsoft v Commission [EU:T:2004:246] para 37. 57 Order of 26 July 2004 in Case T-201/04 R Microsoft v Commission [EU:T:2004:246] para 46. The fact that some of the represented undertakings were in direct competition with Microsoft was also found to be relevant by the GCEU. See also Order of 19 January 2009 in Case T-107/08 Kazchrome v Council and Commission [not reported] para 10. 58 See, eg Order of 22 November 1999 in Case T-164/99 Leroy v Council [not reported]. 59 Order of 26 July 2004 in Case T-201/04 R Microsoft v Commission [EU:T:2004:246] para 45; Order of 19 January 2009 in Case T-107/08 Kazchrome v Council and Commission [not reported] para 10. 60 Order of 8 December 1993 in Case T-87/92 Kruidvat v Commission [EU:T:1993:113] para 14; Order of 26 July 2004 in Case T-201/04 R Microsoft v Commission [EU:T:2004:246] para 37. 61 Order of 20 November 2008 in Case T-167/08 Microsoft v Commission [EU:T:2008:521] para 69. 62 Order of 30 January 2009 in Case T-345/07 Banque Postale v Commission [not reported] paras 25–37.

634 Interventions 5.258

Participation in the administrative procedure. Finally, the fact that a particular association participated in the administrative or legislative procedure leading up to the adoption of the contested act is also considered among the factors justifying the grant of leave to intervene.63

5.259

Non-governmental organisations. Where non-governmental organisations apply to intervene, the requirement of showing an interest in the outcome of the litigation is not interpreted in relation to the personal economic or legal situation of such organisations but, rather, in relation to the public interest they represent. In the Região autónoma dos Açores v Council case, the General Court allowed the intervention of Greenpeace and the World Wide Fund for Nature on the grounds that these organisations were active in the legislative process leading up to the adoption of the contested regulation (concerning, in particular, the management of the fishing effort in the Azorean waters), submitted amendment propositions to the draft regulation and were specifically active in the protection of the marine environment of the Azorean waters.64 As regards the application to intervene lodged by Oceana Europea in the same case, the General Court held that environmental organisations had a direct and existing interest in the outcome of litigation only if their field of action coincides with the affected geographical region or, where their field of action is larger, if they were involved in programmes or studies specifically concerning the region in question. As Oceana Europea demonstrated involvement only in general programmes regarding protection of marine environment not focused on the Azorean waters, its application to intervene was refused.65

5.4.3.3. Interveners in Intellectual Property Cases 5.260

The other party to the proceedings before the Board of Appeal has an automatic right to intervene. Under the GC RoP, intellectual property cases brought against the European Union Intellectual Property Office (EUIPO) and the Community Plant Variety Office (CPVO) are not direct actions66 and a number of specific procedural rules apply to them.67 In particular, the other party to the proceedings before the Board of Appeal of the EUIPO or the CPVO which adopted the contested decision is entitled to intervene in an action brought against that decision. Said other party automatically becomes an intervener in the proceedings before the General Court by simply responding to the action,68 which is served on him by the Registry. He does not need to lodge an application to intervene. Furthermore, such interveners in intellectual property cases enjoy extended rights69 (cf paras 3.539–3.540, cf para 5.302), which are equal to those of the main parties.

5.4.3.4. Interveners at First Instance become Respondents in Appeals 5.261

Interveners at first instance are entitled to lodge a response to the appeal and thus become respondents in appeals. Under rules similar to those on intellectual property cases, interveners

63 See, eg Order of 19 January 2009 in Case T-107/08 Kazchrome v Council and Commission [not reported] para 10. 64 Order of 16 February 2005 in Case T-37/04 Região autónoma dos Açores v Council [not reported] paras 2–4. 65 Order of 5 April 2005 in Case T-37/04 Região autónoma dos Açores v Council [not reported] paras 17–20. 66 GC RoP, Art 1(2)(i). Actions in intellectual property cases are brought under the relevant provisions of the IP Regulations (cf paras 3.529–3.530) and not under Article 263 TFEU. These actions are examined in detail in Chapter 3.5. Intellectual Property Cases and in Chapter 4.3. Procedure in Intellectual Property Cases. 67 GC RoP, Arts 171–191. 68 GC RoP, Art 173(1). 69 GC RoP, Art 173(3).

Time Limits, Formal Requirements, Procedure 635 in first instance proceedings before the General Court have an automatic right to participate in the appeal procedure as respondents (cf para 3.612).70 To that effect, they need to file a response to the appeal within two months plus 10 days.71 Indeed, since their direct and existing interest in the outcome of the case has already been examined by the General Court at first instance, and they must also show an interest in the appeal being allowed or dismissed under Article 172 of the CJ RoP (cf para 3.609), there is no point in adding another procedural step by requiring them to file an application to intervene in the appeal. Notwithstanding these rules, an intervener at first instance may also apply for leave to intervene in the appeal case.

5.4.4. Time Limits, Formal Requirements, Procedure 5.4.4.1. Time Limits Direct actions before the Court of Justice: six weeks plus 10 days. In direct actions brought before the Court of Justice, the application to intervene is to be filed within six weeks72 plus 10 days (added on account of distance) of the publication in the Official Journal of the notice indicating the date of lodging of an application initiating proceedings, the names of the main parties or the initials replacing a name, the form of order sought by the applicant, and a summary of the pleas in law and of the main supporting arguments (cf para 4.200).73 The Court may entertain applications to intervene filed after the expiry of this period, if submitted before the decision to open the oral procedure; however, in this case, the intervener will be limited to submitting an oral statement during the hearing, if one takes place.74

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Appeals: one month plus 10 days. A shorter time limit applies in appeal proceedings, where the application to intervene must be lodged within one month plus 10 days (added on account of distance) from the notification of the initiation of a case published in the Official Journal (cf para 4.200).75 This deadline is often overlooked as it differs from the general, six-week time limit open for requesting leave to intervene (cf paras 5.262 and 5.264).76 As in direct actions, the Court of Justice may give consideration to an application to intervene which was filed after the expiry of the one month (plus 10 days) time limit but before the decision to open the oral part of the procedure. If the President77 allows the intervention, the intervener may submit his observations during the hearing, if it takes place.78 The subsequent steps and the rights of the intervener are the same as in the case of interventions in direct actions.

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Direct actions before the General Court: six weeks plus 10 days. In direct actions brought before the General Court, the application to intervene is to be filed within six weeks plus 10 days (added on account of distance) of the publication in the Official Journal of the notice

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70 See, eg the bank interveners at first instance that became respondents on appeal in Case C-382/12 P MasterCard and Others v Commission [EU:C:2014:2201] and Case C-67/13 P Groupement des cartes bancaires (CB) v Commission [EU:C:2014:2204] paras 14 and 17. 71 CJ RoP, Art 172. 72 CJ RoP, Art 130(1). 73 CJ RoP, Art 21(4). 74 CJ RoP, Art 129(4). 75 CJ RoP, Arts 21(4) and 190(2). 76 CJ RoP, Art 130. The usual consequence of believing mistakenly that the six-week deadline applies is that the intervener may only participate in the oral part of the procedure. 77 cf para 1.36. 78 CJ RoP, Art 129(4).

636 Interventions on the initiation of a case (cf para 4.200).79 The new GC RoP of 2015 have made this time limit mandatory: no consideration can be given to an application to intervene lodged after its expiry. This contrasts to the provisions applicable before the Court of Justice (cf para 5.262) and to those that used to be applicable under the old GC RoP of 1991, providing for such a consideration to late applications. 5.265

Time limit to respond to the action in intellectual property cases: two months plus 10 days. As explained above (cf para 5.260), the other party to the proceedings before the Board of Appeal of the EUIPO or the CPVO has an automatic right to become an intervener in the case before the General Court by lodging a response to the action. That response is to be filed within two months plus 10 days (added on account of distance) counted from the service of the action on that other party. The time limit may be extended in exceptional circumstances at the reasoned request of said other party.80 The content and formal requirements related to applications to intervene in direct actions and in appeals (as explained below in Subsection 5.4.4.2) are not applicable to responses to actions in intellectual property cases, to which separate rules apply (cf para 4.386 et seq).

5.4.4.2. Content and Formal Requirements for Applications to Intervene 5.266

Content. The content requirements for application for leave to intervene are laid down in Article 130 of the CJ RoP and Article 143 of the GC RoP. These are substantively the same, the latter being slightly more detailed. Article 143(2) of the GC RoP provides as follows: The application to intervene shall contain: (a) (b) (c) (d) (e)

a description of the case; a description of the main parties; the name and address of the applicant for leave to intervene; particulars of the status and address of the representative of the applicant for leave to intervene; the form of order sought in support of which the applicant for leave to intervene is applying for leave to intervene; (f) a statement of the circumstances establishing the right to intervene, where the application is submitted pursuant to the second or third paragraph of Article 40 of the Statute.

This last content requirement spells out the need for non-privileged applicants to intervene (cf paras 5.242–5.243) to state the circumstances establishing their right to intervene, ie substantiate their direct and existing interest in the outcome of the litigation (cf para 5.245) or, in the case of representative associations, demonstrate that the case raises questions of principle liable to affect their members (cf para 5.255). EEA EFTA States and the EFTA Surveillance Authority must explain why the case concerns the EEA Agreement or, if that Agreement is not concerned, they must also show a direct and existing interest in the result of the case. 5.267

Representation and formal requirements. The applicant to intervene must be represented, and the formal requirements regarding representation apply (cf paras 4.42–4.50).81 Under the GC RoP, where the applicant to intervene is a legal person, proof of existence in law must be submitted. The relevant annexes must be enclosed to the application to intervene (cf paras 4.132–4.134).

79 GC

RoP, Arts 79 and 143(1). RoP, Arts 178(3) and 179. RoP, Arts 119 and 130(3)–(4); GC RoP, Arts 51, 78(4) and 143(3)–(4).

80 GC 81 CJ

Confidentiality Issues 637 The provisions on regularisation apply (cf para 4.135).82 e-Curia is the only way to submit an application to intervene before the General Court, and it is advised that this be used also before the Court of Justice (cf para 4.59). If the applicant to intervene prefers another way to communicate with the Court of Justice, information on service (eg postal address or email address) must be provided (cf paras 4.69).83 The language of the case must be used, save some exceptions. Applications to intervene are to be filed in the language of the case (cf para 4.22 et seq). Member States are nonetheless always entitled to use their official language. EEA EFTA States and the EFTA Surveillance Authority are allowed to choose an EU language other than that of the case (cf para 4.37).84

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5.4.4.3. Procedure for Granting Leave to Intervene Procedure. The procedure for granting leave to intervene is laid down in Article 131 of the CJ RoP85 and Article 144 of the GC RoP, and can be summed up as follows. The application to intervene is served on the parties (only on the main parties under the GC RoP), who may submit observations on the application to intervene. These observations may relate both to the question whether to grant leave to intervene and to the confidential treatment of certain procedural documents vis-à-vis the applicant to intervene, for the case where he is admitted to the proceedings. Where the applicant to intervene (i) has an automatic right to intervene (as a privileged intervener, cf paras 5.239–5.240) and (ii) there is no confidentiality issue, the leave to intervene is granted by decision, thus no separate, formally adopted order is needed. In any other case, leave to intervene is granted in an order. In the case of non-privileged applicants to intervene, that order may also consist in a rejection of the application.

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Reasoning of the order and appeals. The GC RoP require the order dismissing an application to intervene to be reasoned and to rule on the costs.86 In practice, all orders on applications to intervene lodged by non-privileged applicants are reasoned; the reasoning may, however, be rather succinct where none of the main parties oppose the intervention and it is allowed by the General Court. Only the order of the General Court refusing an application to intervene may be appealed before the Court of Justice (cf para 3.593);87 the order granting leave to intervene is not appealable.

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5.4.5. Confidentiality Issues General. If the application to intervene is granted, the intervener receives a copy of every procedural document and annexed item served on the main parties, save, where applicable, for

82 CJ RoP, Art 130(4); GC RoP, Art 143(4). 83 CJ RoP, Arts 122 and 130(4). 84 CJ RoP, Art 38(4); GC RoP, Art 46(4)–(5). 85 This Article has been substantially modified by the Amendments of the Rules of Procedure of the Court of Justice of 26 November 2019 (OJ 2019 L 316, p. 103), in force as of 1 January 2020. The new provisions are closer to those in the GC RoP than the previous ones. 86 GC RoP, Art 144(6). 87 Statute, Art 57(1). The appeal may be lodged within two weeks (plus 10 days added on account of distance) from the notification of the order dismissing the application to intervene (cf para 3.617). Only the person whose application has been dismissed is entitled to appeal against the order.

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638 Interventions the confidential information excluded from such communication. In this regard, the parties may request that some parts of the case file which contain secret or confidential information should not be served on the intervener.88 Typically, a request for confidential treatment is filed where both the applicant and the prospective or already admitted intervener are private undertakings and the written submissions contain sensitive business information. Confidentiality issues are more likely to arise before the General Court, since natural or legal persons bring their actions before that Court, whereas appeals are limited to points of law. Therefore, the GC PR addresses the issue of confidentiality in detail.89

5.4.5.1. Confidentiality Issues before the General Court 5.272

Application for confidentiality before and after the grant of leave to intervene. First, the request for confidential treatment may be submitted pre-emptively, before the General Court’s decision on whether leave to intervene is granted.90 When the application to intervene is served on the main parties, each main party may apply, within the deadline set by the Registrar, for confidential treatment in respect of certain information included in the procedural documents already on the case file. Such an application is to be made in a document separate from the observations on the application for leave to intervene, but the same deadline for the submission of both may be set by the Registrar. Confidentiality will be decided in the order granting intervention.91 Secondly, the main parties may also request confidential treatment vis-à-vis the intervener in respect of information contained in documents submitted at later stages of the procedure, when the intervener has already been admitted. To that effect, the main parties must file an application for confidential treatment simultaneously with the lodging of the procedural document containing the allegedly confidential information. In the absence of such an application, the procedural document will be served on the intervener.92

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Form and content of the application for confidential treatment. The application for confidential treatment must be made by a separate document. It may not be lodged as a part of the confidential version of the procedural document, and the application itself may not contain confidential information. The application for confidential treatment must specify the party in relation to whom confidentiality is requested.93

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The application must be limited to what is strictly necessary, a non-confidential version must be submitted. The application for confidential treatment must be limited to what is strictly necessary. It may not cover the entirety of a procedural document (inter alia a pleading or a response to the Court’s question) and it may only exceptionally extend to the entirety of an annexed item.94 It should usually be possible to furnish a non-confidential version of a procedural document and annexed items in which certain passages, words or figures have been deleted without affecting the interests sought to protect. In addition, the application for confidential treatment must accurately identify the particulars or passages to be excluded and state the reasons for which each of those

88 CJ RoP, Art 131(2)–(4); GC RoP 144(7). 89 GC PR, paras 177–184. 90 GC RoP 144(7). See, eg Order of 8 November 2006 in Case T-273/04 Brandt industries v Commission [not reported]; Order of 19 January 2009 in Case T-107/08 Kazchrome v Council and Commission [not reported]. 91 GC RoP, Art 144(2) and (5); GC PR, para 177. 92 GC PR, para 178. 93 GC PR, paras 179–180. 94 Order of 15 September 2016 in Case T-827/14 Deutsche Telekom v Commission [EU:T:2016:545] paras 75–80.

Confidentiality Issues 639 particulars or passages is regarded as confidential.95 Failure to provide such detailed information may result in the application being refused by the Court,96 as has happened in several cases in the past.97 Furthermore, on lodging an application for confidential treatment in respect of one or more procedural documents, a party must produce a full non-confidential version of each procedural document and item concerned, with the confidential particulars or passages removed.98 Regularisation and consequences of non-compliance. If the application for confidential treatment is not made in a separate document, does not indicate the intervener in whose respect confidentiality is requested, or does not contain the non-confidential version of the procedural document or item, the Registrar will request the party concerned to put that application in order. If, despite such a request, the application for confidential treatment still has the said defects, it will not be processed and a copy of every procedural document and item concerned will be communicated to the intervener.99

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Comments by the intervener. If the application for confidential treatment complies with the formal and content requirements, the Registry will forward that application and the nonconfidential versions of the pleadings and items to the intervener. This may take place on the same day on which the leave to intervene is granted.100 In the absence of any opposition from the other parties to the proceedings or the intervener, the request for confidential treatment will be deemed to be justified and the Court will not adopt any formal decision.101

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Challenge by the intervener. However, upon receiving the application for confidential treatment and the non-confidential versions of the pleadings and annexed items prepared by the applicant for confidentiality, the intervener may challenge the application for confidential treatment.102 In that challenge, the intervener must precisely identify the information and passages which were redacted from the non-confidential version of the documents and must set out the reasons for which he believes that confidential treatment should not be granted in respect of each piece of redacted information.103

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Decision on the merits of the application for confidentiality. The General Court only examines the merits of an application for confidential treatment if it is opposed by the intervener or the other parties to the proceedings,104 and only in respect of the documents and redacted pieces of information whose confidential treatment is disputed.105 As a first step, the General Court examines if all the pieces of information at issue have a confidential character. It will refuse confidential treatment in respect of information that is, according to its assessment, not confidential.106

5.278

95 Order of 5 October 2015 in Case T-1/15 SNCM v Commission [EU:T:2015:833] para 10. 96 Order of 13 April 2016 in Case T-818/14 BSCA v Commission [EU:T:2016:712] para 23; Order of 15 September 2016 in Case T-827/14 Deutsche Telekom v Commission [EU:T:2016:545] para 36. 97 See, eg Order of 1 March 2007 in Case T-336/04 SBS TV and SBS Danish Television v Commission [EU:T:2007:66] para 43; Order of 2 September 2009 Case T-441/08 ICO Services v Parliament and Council [EU:T:2009:298] para 24: ‘an application for confidential treatment which is insufficiently detailed as to the particulars it covers will be dismissed’. 98 GC PR, paras 181–183. 99 GC PR, para 184. 100 Order of 13 September 2017 in Case T-121/15 Fortischem v Commission [EU:T:2017:648] paras 4–5. 101 See, eg Order of 30 January 2008 in Case T-444/04 France TeleCommission v Commission [EU:T:2008:24]. 102 Order of 13 September 2017 in Case T-121/15 Fortischem v Commission [EU:T:2017:648] para 6. 103 Order of 13 April 2016 in Case T-818/14 BSCA v Commission [EU:T:2016:712] para 25; Order of 13 September 2017 in Case T-121/15 Fortischem v Commission [EU:T:2017:648] paras 19 and 23. 104 See, eg Order of 26 July 2004 in Case T-201/04 R Microsoft v Commission [EU:T:2004:246] paras 140–141. 105 Order of 13 April 2016 in Case T-818/14 BSCA v Commission [EU:T:2016:712] para 24. 106 Order of 5 October 2012 in Case T-258/10 Orange v Commission [EU:T:2012:524] para 22; Order of 13 April 2016 in Case T-818/14 BSCA v Commission [EU:T:2016:712] para 26.

640 Interventions As a second step, the requirement for the applicant to state reasons for the application for confidentiality is to be assessed in the light of the secret or confidential nature of each of the documents and pieces of information covered. Indeed, a distinction must be drawn between, first, information which is by its nature secret, such as business secrets of a commercial, competitionrelated, financial or accounting nature, or which is by its nature confidential, such as purely internal information, and, secondly, other documents or information which may be secret or confidential for a reason that is for the applicant to furnish.107 The secret or confidential character of the documents or information for which no reasoning is given other than a description of their content will be accepted only insofar as that information can be considered secret or confidential by its very nature.108 As a third step, where the Court concludes that some of the documents and information whose confidentiality is disputed are indeed secret or confidential, it weighs up the competing interests for each document and piece of information. In doing so, the Court will balance, in respect of each document or part thereof, the legitimate concern of the applicant for confidentiality to prevent damage to his business interests or other legitimate interests, on the one hand, and the intervener’s equally legitimate concern to have the necessary information to be fully in the position to exercise his procedural rights, on the other hand.109 At the stage of proceedings for interim relief, the assessment carried out by the General Court is limited to examining whether the request for confidential treatment concerns information which is prima facie secret or confidential.110 5.279

Valid reasons for confidential treatment. The General Court has considered as valid reasons underpinning a request for confidential treatment, inter alia, that some parts of the documents or the information contained therein were covered by legal professional privilege, constituted communications internal to the undertaking and reporting the content of legal advice received from external legal advisers, or constituted business secrets.111 Natural and legal persons not participating in the Court procedure also have the right, in principle, to enjoy the protection conferred by confidential treatment as regards documents in the case file containing sensitive information in their respect. Such protection is not granted, however, if the third party not participating in the procedure has business relations with the party or intervener in respect of which the confidential treatment is requested.112 Furthermore, business information which has been confidential but is five or more years old must be treated as historic unless, by way of exception, the applicant demonstrates that, despite their age, those data still constitute essential elements of

107 Order of 13 September 2017 in Case T-121/15 Fortischem v Commission [EU:T:2017:648] para 23. 108 Order of 13 September 2017 in Case T-121/15 Fortischem v Commission [EU:T:2017:648] para 23; Order of 13 April 2016 in Case T-818/14 BSCA v Commission [EU:T:2016:712] para 28. 109 Order of 15 June 2006 in Case T-271/03 Deutsche Telekom v Commission [EU:T:2006:163] para 10; Order of 1 March 2007 in Case T-336/04 SBS TV and SBS Danish Television v Commission [EU:T:2007:66] para 41; Order of 2 September 2009 in Case T-441/08 ICO Services v Parliament and Council [EU:T:2009:298] para 22; Order of 13 April 2016 in Case T-818/14 BSCA v Commission [EU:T:2016:712] para 30; Order of 13 September 2017 in Case T-121/15 Fortischem v Commission [EU:T:2017:648] para 26; Order of 15 September 2016 in Case T-827/14 Deutsche Telekom v Commission [EU:T:2016:545] paras 42–43. 110 See, eg Order of 22 March 1999 in Case T-13/99 R Pfizer Animal Health v Council [not reported] para 32. 111 Order of 4 April 1990 in Case T-30/89 Hilti v Commission [EU:T:1990:27] paras 11–21. Order of 1 March 2007 in Case T-336/04 SBS TV and SBS Danish Television v Commission [EU:T:2007:66] para 55. The General Court held that costs and results of economic operators, as well as the prices they charge, may constitute business secrets. However, it took into account that the figures concerned periods preceding the request for confidential treatment by at least four years, hence it considered them to be historical market data and therefore refused to grant confidential treatment in their respect. 112 Order of 19 March 1996 in Case T-24/93 Compagnie maritime belge transports and Compagnie maritime belge v Commission [not reported] para 7.

Confidentiality Issues 641 its commercial position or of that of the third person concerned. Without due justification, no confidential treatment can be accorded to historical data.113 Level of precision may be decisive. The level of precision of the reasoning put forward both by the party applying for confidential treatment and by the party opposing that treatment as regards particular items of information obscured in the non-confidential version of any documents may often sway the General Court when deciding on whether to grant confidential treatment in respect of the information concerned.114 An application for confidential treatment must be upheld insofar as it concerns matters which have not been disputed expressly and in detail.115

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Confidential treatment is refused if it was not requested regarding all occurrences of the information. The party wishing to keep documents or information confidential vis-à-vis the intervener must take due care to apply for confidentiality at the earliest submission of the information at issue, and be vigilant as regards all occurrences of that information in each pleading or annex submitted. Where the applicant for confidential treatment has failed to redact certain data in the non-confidential versions of his pleadings or annexes thereof, actually the applicant himself discloses those data to the intervener. The information thus loses its confidentiality with respect to the intervener and no longer warrants specific protection by the General Court, meaning that the application for confidential treatment relating to such information will be refused.116 Furthermore, when the same information is reproduced a number of times in the pleadings or their annexes and the party neglects to request that each of the passages in which it appears be treated confidentially, so that the information will in any event be disclosed to the intervener, the request concerning it can only be refused, given that it is pointless.117

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5.4.5.2. Confidentiality Issues before the Court of Justice General. Confidentiality issues occur less frequently in proceedings before the Court of Justice than in those before the General Court. That is because direct actions heard by the Court of Justice consist in litigation between EU institutions and/or Member States, while appeals are limited to points of law. The CJ PD does not provide any specific guidance on handling confidentiality issues in interventions; however, when such issues occur, the Court of Justice decides along principles similar to those applied by the General Court118 (cf Subsection 5.4.5.1), also because a large part of the relevant case law had been developed before the creation of the General Court.

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Full version of the appeal and its annexes are served on the interveners at first instance unless confidential treatment is requested. One specific issue nonetheless deserves closer attention: the appeal is automatically served on the interveners at first instance, since they may join the appeal

5.283

113 Order of 13 September 2017 in Case T-121/15 Fortischem v Commission [EU:T:2017:648] paras 40–43 and case law cited; see also Order of 28 January 2014 in Case T-67/13 Novartis Europharm v Commission [EU:T:2014:75] para 53. 114 Order of 1 March 2007 in Case T-336/04 SBS TV and SBS Danish Television v Commission [EU:T:2007:66] paras 44–45; Order of 2 September 2009 in Case T-441/08 ICO Services v Parliament and Council [EU:T:2009:298] paras 25–26. 115 Order of 22 February 2005 in Case T-383/03 Hynix Semiconductor v Council [:EU:T:2005:57] paras 36 and 83; Order of 4 March 2005 in Case T-289/03 BUPA and Others v Commission [EU:T:2005:78] para 11. 116 Order of 13 September 2017 in Case T-121/15 Fortischem v Commission [EU:T:2017:648] para 36; see also Order of 21 September 2015 in Case T-688/13 Deloitte Consulting v Commission [EU:T:2015:745] para 26. 117 Orders of 22 February 2005 in Case T-383/03 Hynix Semiconductor v Council [EU:T:2005:57] para 49; Order of 15 September 2016 in Case T-827/14 Deutsche Telekom v Commission [EU:T:2016:545] para 51; Order of 13 September 2017 in Case T-121/15 Fortischem v Commission [EU:T:2017:648] paras 38–39. 118 CJ RoP, Art 131 provides for requests for confidential treatment.

642 Interventions proceedings as respondents (cf para 5.261).119 Given the potentially sensitive nature of information contained in the appeal, the CJ PD of 2019 introduced some specific provisions regarding confidentiality. They now provide that the parties must in principle refrain from mentioning secret or confidential matters in their written pleadings. If, exceptionally, they nevertheless do so, the party relying on the confidentiality of certain matters in its written pleading is requested to submit, by a separate document, a duly reasoned request for confidential treatment (specifying both the scope of the confidentiality requested and the parties to the proceedings to whom that request relates), together with a non-confidential version of the pleading that can be served on those other parties. In the event that that request for confidentiality – the scope of which cannot, in any event, go beyond the confidential treatment already approved by the General Court in relation to an intervener – is approved in part, the party claiming that confidentiality is requested to produce, without delay, a new non-confidential version of its written pleading that can be served on the other parties to the proceedings.120 It is therefore advisable to submit a non-confidential version of the appeal (and its annexes) along with the full version of the appeal if the latter (or its annexes) contain secret or confidential information that was not accessible to the interveners at first instance. The application for confidential treatment should be made in good time (cf para 5.281). In Lundbeck v Commission, the appellant submitted its application for confidential treatment in respect of the full confidential version of the contentious Commission decision, annexed to its appeal, six days after lodging that appeal. It also provided a nonconfidential version of that decision in an annex to its application for confidential treatment. The Court of Justice granted confidential treatment vis-à-vis the private party respondent that was an intervener at first instance, on the ground that such treatment had already been allowed by the General Court in the first instance proceedings in respect of the same information.121 In Council v PT Pelita Agung Agrindustri, the appeal was lodged by the Council (defendant at first instance), which was indifferent to keeping information related to PT Pelita Agung Agrindustri confidential. The latter (applicant at first instance and respondent on appeal) requested confidential treatment 16 days after the lodging of the appeal with regard to information contained in its application at first instance, the full confidential version of which had been annexed by the Council to its appeal. The Court of Justice granted confidential treatment automatically vis-à-vis European Biodiesel Board (intervener at first instance and respondent on appeal), based on the consideration that confidential treatment in respect of the same information had been granted by the General Court at first instance.122

5.4.6. Rights of the Intervener 5.284

General. In direct actions and appeals, the procedural rights of interveners are substantially reduced as compared to those of the main parties.123 The first three subsections to this section, Subsection 5.4.6.1. Procedural Rights: Receiving Procedural Documents, Submission of Statements, Subsection 5.4.6.2. Cannot Alter or Distort the Framework of the Dispute and Subsection 5.4.6.3. Restricted Right to Appeal, relate only to the rights of interveners in direct

119 CJ RoP, Arts 171(1) and 172; CJ PD, para 32. See Order of 13 December 2016 in Case C-591/16 P Lundbeck v Commission [EU:C:2016:967] para 4. 120 CJ PD, para 32. 121 Order of 13 December 2016 in Case C-591/16 P Lundbeck v Commission [EU:C:2016:967] paras 5–6. 122 Order of 7 March 2017 in Case C-604/16 P Council v PT Pelita Agung Agrindustri [EU:C:2017:186] paras 5–6. 123 CJ RoP, Art 129(1); GC RoP, Art 142(1).

Rights of the Intervener 643 actions and in appeals. Interveners in intellectual property cases enjoy the same procedural rights as the main parties; the rules applicable to them are addressed separately in Subsection 5.4.6.4. Extended Rights in Intellectual Property Cases.

5.4.6.1. Procedural Rights: Receiving Procedural Documents, Submission of Statements The intervener receives a copy of every procedural document. The intervener admitted to the case will, subject to applications for confidential treatment (cf para 5.271 et seq), receive a copy of every procedural document and annexed item served on the parties.124 In the case of the General Court, the intervener only receives copies of the procedural documents served on the main parties.125

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Right to submit a statement in intervention. The intervener is entitled to submit a written statement, called a statement in intervention. In proceedings before the General Court, that statement in intervention must be submitted within the deadline prescribed by the President.126 Normally, the deadline is set in such a way as to allow the intervener to submit his statement after the defence, so that he can comment on the position of both main parties. Before the Court of Justice, only those interveners are entitled to lodge a statement in intervention who applied to intervene within the period of six weeks (direct actions) or one month (appeals) from the notification of a pending case in the Official Journal (cf paras 5.262–5.263).127 That statement must be lodged within one month from the reception of the procedural documents after the grant of the leave to intervene.128 Because of the applicable time limits, this means that, normally, the intervener lodges his statement in intervention after receiving not only the action, but also the defence (appeal and response in appeal proceedings), thus he may comment on the position of both main parties.

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Content of the statement in intervention. The statement in intervention must contain the form of order sought by the intervener in support of or opposing, in whole or in part, the form of order sought by one of the parties (main parties before the General Court), the pleas in law and arguments relied on by the intervener and, where appropriate, the evidence produced or offered.129 Furthermore, the intervener must also apply for costs if he wishes to recover them in case of success (cf para 5.368).130 The statement in intervention should be as short as possible, the size limit being 10 pages before the Court of Justice and 20 pages before the General Court.131 Under the CJ PD, the statement should not recapitulate the factual and legal background except insofar as its presentation in the previous pleadings is disputed or, exceptionally, calls for further particulars. Since the intervention is ancillary to the main proceedings, the intervener must refrain from repeating in his statement the pleas in law and arguments in the written pleadings of the supported party and must set out only additional pleas in law or arguments which bear out that party’s submissions.132 It is advisable to also follow these drafting guidelines before the General Court.

5.287

124 CJ

RoP, Art 131(2)–(4). RoP, Art 144(7). 126 GC RoP, Art 145(1); cf para 1.61 on the meaning of the term ‘President’. 127 CJ RoP, Arts 130 and 190(2). 128 CJ RoP, Art 132(1); CJ PD, para 34. 129 CJ RoP, Art 132(2); GC RoP, Art 145(2). 130 CJ RoP, Art 138(1); GC RoP, Art 134(1). 131 CJ PD, para 34; GC PR, para 105. In staff cases, the maximum length of the statement in intervention is 10 pages. 132 CJ PD, para 34. 125 GC

644 Interventions 5.288

Observations on the statement in intervention by the other parties. The other parties may submit their replies to the statement in intervention within a time limit prescribed by the President.133 The observations on the statement in intervention are normally placed in the reply and the rejoinder, if a second exchange of pleadings by the main parties takes place. In order to achieve such a simplification of procedure, the Courts may well decide on the intervention and serve the statement in intervention on the main parties before setting a deadline for the applicant to submit his reply. If there is no second exchange of pleadings or the statement in intervention was served at a time that does not allow both main parties to submit observations in that second exchange, the Court of Justice may,134 whereas the General Court must,135 prescribe a time limit within which the parties (main parties before the General Court) may submit their observations on the statement in intervention. If lodged in separate documents, the maximum length of these observations is five pages when made before the Court of Justice and 15 pages when made before the General Court.136

5.289

No right to request a hearing. Under both the GC RoP and the CJ RoP, the intervener has no right to formally request a hearing,137 that right being reserved to the main parties (cf paras 4.312 and 4.317). The intervener may nonetheless suggest that a hearing be held, possibly in his statement in intervention.

5.290

Oral observations at the hearing. The interveners are entitled to submit oral observations at the hearing, if one takes place (cf paras 4.311 et seq, 4.333, 4.399 and 4.440).138 Where an application to intervene in a procedure before the Court of Justice is lodged after the expiry of the period of six weeks (one month in appeals) from the publication in the Official Journal of the notice of a pending case, the intervener is allowed to submit only an oral statement during the hearing.139

5.291

The intervener must use the language of the case, as a rule. The written statement in intervention must be submitted in the language of the case (cf para 4.22 et seq). Member States are nonetheless always entitled to use their official language. EEA EFTA States and the EFTA Surveillance Authority are allowed to choose an EU language other than that of the case (cf para 4.37).140 The same applies to the oral hearing. Non-privileged interveners may ask to be allowed to use a language other than that of the case for the purposes of the proceedings. The chances of receiving such an authorisation for the written part of the procedure are very limited (cf para 4.39). There is a larger chance to be allowed to plead in a different EU language at the oral hearing, especially if a privileged intervener is allowed to use that language, so interpretation to and from it is anyway ensured.

5.4.6.2. Cannot Alter or Distort the Framework of the Dispute 5.292

Main rules. A fundamental rule is that the intervener must accept the case as he finds it at the time of his intervention.141 Since the form of order sought by an intervener may only seek to 133 CJ RoP, Art 132(3); CJ PD, para 35; GC RoP, Art 145(3); cf paras 1.36 and 1.61 on the meaning of the term ‘President’. 134 CJ RoP, Art 145(3). CJ PD, para 35 further emphasises that the invitation of the other parties to submit observations on the statement in intervention is optional. 135 GC RoP, Art 145(3). 136 CJ PD, para 35; GC PR, para 105. In staff cases, the size limit is five pages. 137 CJ RoP, Art 129(1); GC RoP, Art 142(1). 138 In proceedings before the Court of Justice, speaking time is normally limited to 15 minutes (CJ PD, para 60). In proceedings before the General Court, speaking time is normally 10 minutes (GC PR, paras 162–163). Both Courts may allow a longer speaking time, possible on the request of the intervener, to be filed ahead of the hearing. 139 CJ RoP, Art 129(4). 140 CJ RoP, Art 38(4); GC RoP, Art 46(4)–(5). 141 CJ RoP, Art 129(3); GC RoP, Art 142(3).

Rights of the Intervener 645 support or to have dismissed the form of order sought by one of the parties to the proceedings (main parties in the case of the General Court),142 the intervener cannot alter the subject matter of the proceedings in any way.143 (i) Admissibility and No Need to Adjudicate Intervention is ancillary. The intervention is ancillary to the main proceedings. It shall become devoid of purpose if the case is removed from the register of the relevant Court as a result of a main party’s discontinuance or withdrawal from the proceedings or of an agreement between the main parties, or where the application is declared inadmissible.144

5.293

Inadmissibility declared before decision on application to intervene. Given that the intervention becomes devoid of purpose if the main action is inadmissible, the General Court codified, in the GC RoP of 2015, its pre-existing practice, which consisted in deciding, whenever expedient, admissibility issues before granting leave to intervene. To that effect, Article 144(3) of the GC RoP provides that where the defendant lodges a plea of inadmissibility or of lack of competence,145 a decision on the application to intervene shall not be given until after the plea has been rejected or the decision on the plea reserved. Albeit not explicitly foreseen in the CJ RoP, this practice is also followed by the Court of Justice. In CNPA and Others v Commission, the Court of Justice held that where the application in the main proceedings is such that it must be declared inadmissible without going into the substance of the case, a third party could not be in a position to establish an interest in the result of the case or intervene in support of the form of order sought by one of the parties. It follows that nothing prevents the Courts from closing a case by ruling it to be inadmissible before an application to intervene has been allowed, even where the time limit for making such an application has not yet expired.146

5.294

Allowing intervention has no bearing on admissibility. On the other hand, the fact that the relevant EU Court has allowed an intervention has no bearing on the admissibility of the main action, as the Court does not rule on the admissibility of the main action in the order deciding on the application to intervene.147 However, taking into account the principle of procedural economy, it may reasonably be supposed that if the Court considered the main action prima facie inadmissible, it would not issue a separate order granting leave to intervene. Some inferences may thus be drawn from the adoption of such an order allowing intervention as to the admissibility of the main action, especially if that order is a rather detailed one.

5.295

The intervener is not entitled to raise a formal plea of inadmissibility. Since an intervener may only support the forms of order sought by one of the main parties,148 he has no standing to raise a plea of inadmissibility not raised by the defendant.149 However, nothing prevents the Courts from raising inadmissibility of their own motion,150 which may result in the examination

5.296

142 Statute, Art 40(4). 143 See, eg Order of 6 February 1995 in Case T-66/94 Auditel v Commission [EU:T:1995:20] para 27. See also L Allkemper, ‘Grenzen der Streithilfe vor dem Europäischen Gerichtshof ’ Europäisches Wirtschafts- und Steuerrecht (1995) 336–339. 144 CJ RoP, Art 129(2); GC RoP, Art 142(2). 145 GC RoP, Art 130(1). 146 Order of 5 July 2001 in Case C-341/00 P CNPA and Others v Commission [EU:C:2001:387] paras 36–37. 147 Order of 20 March 1998 in Case T-191/96 CAS Succhi di Frutta v Commission [EU:T:1998:60] para 27. 148 CJ RoP, Art 132(2); GC RoP, Art 145(2). 149 Case C-225/91 Matra v Commission [EU:C:1993:239] paras 10–12; Case T-88/92 Leclerc v Commission [EU:T:1996:192] para 41. 150 CJ RoP, Art 150; GC RoP, Arts 126 and 129.

646 Interventions of admissibility issues at least partially identical to those raised by an intervener.151 Therefore, depending on the context of the case, it may make perfect sense for the intervener to point out grounds for inadmissibility of the main action in his statement in intervention and thus cause the Courts to raise the same issues formally ‘of their own motion’. (ii) No New Pleas in Law and Limited Right to Raise Substantive Arguments 5.297

The intervener is allowed to put forward new arguments but no new pleas in law, since that would alter the context of the dispute. The Courts have repeatedly held that the Statute provision limiting the application to intervene to supporting the form of order sought by one of the parties152 and the rule obliging the intervener to accept the case as he finds it at the time of his intervention153 do not preclude the intervener from advancing arguments which are new or different from those of the supported party, lest his intervention be limited to restating the arguments advanced by the latter. However, the Courts have also emphasised that the intervener may not alter or distort the context of the dispute defined in the application by raising new pleas in law.154 Intervening Member States do not benefit from any exception to this rule.155 In practice, the distinction between a ‘new plea’ and a ‘line of argument’ put forward by the intervener pertaining to one of the pleas raised by the supported main party is often a very subtle one.156

5.298

Examples. On the basis of the above case law (cf para 5.297), in Atlantic Container Line, the General Court rejected as inadmissible the plea of the intervener based on the breach of the EEA agreement since such a plea had not been raised by the supported main party.157 Likewise, in BaByliss, the intervener’s plea alleging that the commitments given by the merging parties led to market sharing, not raised by the applicant, was found inadmissible.158 Even pleas related to the intervener personally are inadmissible if not raised by any of the main parties. For instance, in SELEX Sistemi Integrati, the General Court ruled that Eurocontrol, as an intervener, did not have standing to raise the plea based on its immunity under public international law.159 The General Court has, however, softened this case law by allowing some exceptions.160 In particular, a complaint related to the breach of an EU law principle raised by the intervener but not by the applicant may be admissible, provided that it is connected with the subject matter of the dispute.161 In Diputación Foral de Álava and Gobierno Vasco, this condition was held to be fulfilled where the intervener founded its complaint on a factual argument also relied on by the applicant. In fact, both the applicants and the interveners took issue with the length of

151 Case C-313/90 CIRFS v Commission [EU:C:1993:111] para 25 et seq; Case T-88/92 Leclerc v Commission [EU:T:1996:192] paras 36–56; Case T-174/95 Svenska Journalistförbundet v Council [EU:T:1998:127] paras 70–87. 152 Statute, Art 40(4). 153 CJ RoP, Art 129(3); GC RoP, Art 142(3). 154 Case C-30/59 De Gezamenlijke Steenkolenmijnen in Limburg v High Authority [EU:C:1961:2] para 18; Case C-245/92 P Chemie Linz v Commission [EU:C:1999:363] para 32; Case T-459/93 Siemens v Commission [EU:T:1995:100] para 21. 155 Joined Cases T-371/94 and T-394/94 British Airways and Others v Commission [EU:T:1998:140] para 75. 156 Joined Cases T-125/96 and T-152/96 Boehringer v Council and Commission [EU:T:1999:302] para 183. 157 Case T-395/94 Atlantic Container Line and Others v Commission [EU:T:2002:49] para 382. 158 Case T-114/02 BaByliss v Commission [EU:T:2003:100] para 417. 159 Case T-155/04 SELEX Sistemi Integrati v Commission [EU:T:2006:387] para 42. 160 See, eg Case T-37/97 Forges de Clabecq v Commission [EU:T:1999:66] para 92, where the General Court considered that a new plea, raised by Belgium as an intervener related to the infringement of the principle of legal certainty, was admissible. 161 Joined Cases T-227/01 to T-229/01, T-265/01, T-266/01 and T-270/01 Diputación Foral de Álava and Gobierno Vasco v Commission [EU:T:2009:315] para 293.

Rights of the Intervener 647 the administrative procedure. The applicants put forward a complaint that it constituted an infringement of the principle of legitimate expectations, whereas the intervener argued that it constituted a breach of the principles of legal certainty and sound administration.162 In contrast, in British Steel, the General Court held that the intervener’s additional arguments, related to the infringement of the principle of legitimate expectations in its own respect but not in respect of the applicant, were inadmissible since they were of such a nature that they altered the framework of the dispute.163 Finally, it should be recalled that some types of pleas in law may be raised by the EU Courts of their own motion. In particular, in the context of actions for annulment, lack of competence and infringement of an essential procedural requirement may be examined ex officio (cf para 3.243). If the intervener raises a new plea having such a subject matter, the Courts may opt to examine its substance, by formally raising it of their own motion.164 The intervener cannot challenge assumptions that are common ground between the main parties. The intervener may not put forward pleas or arguments that would challenge assumptions which are common ground between the main parties. In BUPA, Ireland, intervening in support of the Commission, argued that the national measure at issue did not involve State aid because there was no transfer of public resources. The General Court pointed out that these arguments contradicted the Commission’s finding in the contested decision that the measure did in fact involve the transfer of public resources, a finding that was not commented on by the applicants. Consequently, the Court found Ireland’s arguments on that point inadmissible in that they altered the scope of the subject matter of the dispute.165 However, if the defendant prefers to abstain from responding to some pleas of the applicant, considering them unnecessary or irrelevant as regards the resolution of the case, the intervener supporting the defendant is allowed to raise arguments in reply of the applicant’s pleas, since the absence of any reaction from the defendant to some pleas does not constitute a limitation of the framework of the litigation.166

5.299

The intervener may not put forward arguments not intended to bolster the supported party’s heads of claim. Finally, interveners may not raise pleas or arguments not intended to support the form of order sought by the main party with which the intervener sided.167 The application of this principle has been extended to situations where the intervener’s plea or argument might well have been intended to support the form of order sought by the relevant party, but which actually, if considered to be well founded, would have brought about a contrary result. In Verein für Konsumenteninformation168 and Technische Glaswerke Ilmenau,169 the interveners supporting the Commission considered that the applicants were wrongly

5.300

162 Joined Cases T-227/01 to T-229/01, T-265/01, T-266/01 and T-270/01 Diputación Foral de Álava and Gobierno Vasco v Commission [EU:T:2009:315] para 294. 163 Case T-243/94 British Steel v Commission [EU:T:1997:159] para 72. 164 See Joined Cases T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211/97, T-216/97 to T-218/97, T-279/97, T-280/97, T-293/97 and T-147/99 Kaufring and Others v Commission [EU:T:2001:133] paras 134–137, where the General Court held that France as an intervener had the right to raise a plea related to the rights of defence in all the joined cases even if the applicants in some of those cases had not raised this plea. The General Court pointed out that the breach of the rights of defence was a matter that could be raised of its own motion. 165 Case T-289/03 BUPA and Others v Commission [EU:T:2008:29] para 155. 166 Case T-289/03 BUPA and Others v Commission [EU:T:2008:29] para 154. 167 Case C-245/92 P Chemie Linz v Commission [EU:C:1999:363] para 32; Case C-248/99 P France v Monsanto and Commission [EU:C:2002:1] para 56; Case T-119/02 Royal Philips Electronics v Commission [EU:T:2003:101] paras 203 and 212. 168 Case T-2/03 Verein für Konsumenteninformation v Commission [EU:T:2005:125]. 169 Case T-237/02 Technische Glaswerke Ilmenau v Commission [EU:T:2006:395].

648 Interventions relying on Regulation 1049/2001 on public access to documents170 because they should have sought access to d ocuments under the specific rules on access to file in State aid proceedings. However, it remained undisputed that the contested decisions had Regulation 1049/2001 as their legal basis. The General Court consequently ruled that if well founded, the additional arguments advanced by the interveners would have led to a finding that the contested decisions were unlawful, contrarily to the order sought by the Commission, which was the dismissal of the actions for annulment. As a consequence, the Court rejected the additional arguments as inadmissible.171

5.4.6.3. Restricted Right to Appeal 5.301

Non-privileged interveners may only appeal decisions of the General Court that directly affect them. Under Article 56(2) of the Statute, interveners other than Member States and EU institutions may bring an appeal against the judgment or order of the General Court only where it directly affects them.172 Whereas direct and existing interest in the result of the case was a precondition for non-privileged interveners to be admitted to the case (cf para 5.245 et seq), this additional rule relates to whether such an interest persists with regard to changing, on appeal, a part of the General Court’s decision specifically affecting them (cf para 3.604). It overlaps with the general condition that non-privileged appellants must show an interest to act (cf para 3.609).

5.4.6.4. Extended Rights in Intellectual Property Cases 5.302

The intervener has the same procedural rights as the main parties. The above rules on the intervener’s rights (cf Subsections 5.4.6.1–5.4.6.3) are not applicable to an intervener in intellectual property cases who was the other party in the proceedings before the Board of Appeal. The rights of the latter are regulated separately (cf para 3.539), and are much broader than those of interveners in direct actions and in appeals. When intervening (cf para 5.260), the other party to the proceedings before the Board of Appeal of the EUIPO or the CPVO has the same procedural rights as the main parties, including the right to seek a form of order and put forward pleas in law independently of those applied for and put forward by the main parties.173 He may also raise a cross-claim, that is, seek an order annulling or altering the contested decision on a point not raised in the application and put forward pleas in law in support of such a cross-claim independently of the main parties.174 Furthermore, specific rules apply to the use of languages in intellectual property cases. If the applicant and the intervener do not agree on the language of the Court case, it will be conducted in the language of the contested decision (cf para 4.375). Finally, if the defendant EUIPO or CPVO does not respond to the application but the intervener does, the case continues between the applicant and the intervener; the rules on judgment by default do not apply.175

170 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). 171 Case T-2/03 Verein für Konsumenteninformation v Commission [EU:T:2005:125] paras 48–55; Case T-237/02 Technische Glaswerke Ilmenau v Commission [EU:T:2006:395] paras 34–41. 172 Statute, Art 56(2). 173 GC RoP, Art 173(3). 174 GC RoP, Art 183–184. 175 GC RoP, Art 173(6).

Costs in Interventions 649

5.4.7. Costs in Interventions 5.4.7.1. Decision on Costs in the Order on Intervention General. If the application to intervene is rejected by the relevant Court, the applicant to intervene bears his own costs and those of the main parties which have opposed his intervention,176 in accordance with the general rule that the unsuccessful party bears the costs, subject only to costs having in fact been applied for (cf paras 5.396–5.399).177 As dismissal of an application to intervene usually occurs at an early stage of the procedure, the main parties’ observations on the application to intervene may well be the sole opportunity to apply for costs. If the main parties do not raise such a claim, they are usually ordered to bear their own costs.178 If the leave to intervene is granted, the costs are reserved.179

5.303

5.4.7.2. Intervener’s Withdrawal The intervener bears the costs, as a rule. Where the intervener withdraws from the procedure, the same rules as regards costs apply as in the event of a discontinuance of the proceedings by one of the main parties, ie the intervener shall bear the costs incurred by the other parties by reason of his intervention if they have been applied for in the observations of the other parties on the withdrawal.180 For the recovery of costs by the main parties, it is therefore not enough if the application or the defence contains a head of claim as regards costs. Unless they are applied for in the observations on the intervener’s withdrawal, the main parties will be ordered to bear their own costs concerning the intervention.181

5.304

5.4.7.3. Order on Costs in the Final Judgment or Order Closing the Case (i) Allocation of Costs Privileged interveners and EU bodies. Members States, EU institutions, bodies, offices and agencies, as well as EEA EFTA States and the EFTA Surveillance Authority, always bear their own costs when intervening, even if they are successful.182 When they support the unsuccessful party, they are usually ordered to bear a part of the successful party’s costs in addition to their own, as would any other intervener. Paragraphs 5.306–5.307 below concern non-privileged interveners which are not EU bodies, offices and agencies.

5.305

An intervener supporting the successful party is normally entitled to costs. A non-privileged intervener (cf para 5.243) – other than an EU body, office or agency – who supports the successful

5.306

176 See, eg Order of 30 January 2009 in Case T-345/07 Banque Postale v Commission [not reported]. 177 CJ RoP, Art 138(1); GC RoP, Art 134. 178 See, eg Order of 4 February 2004 in Case T-14/00 Coöperatieve Aan- en Verkoopvereniging Ulestraten, Schimmert en Hulsberg and Others v Commission [EU:T:2004:32]. 179 CJ RoP, Art 137; GC RoP, Art 133. See, eg Order of 28 November 1995 in Case T-2/95 Indurstrie des poudres sphériques v Council and Commission [not reported]; Order of 20 November 2008 in Case T-167/08 Microsoft v Commission [EU:T:2008:521]. 180 CJ RoP, Art 141(1); GC RoP, Art 136(1). 181 See Order of 26 November 1996 in Case T-204/95 IECC v Commission [not reported] – intervention of La Poste; Order of 27 November 2002 in Case T-219/01 Commerzbank v Commission [not reported] – intervention of Sweden. 182 CJ RoP, Art 140(1)–(2); GC RoP, Art 138(2).

650 Interventions party is entitled, in principle, to the same order on costs as the main party he supports, provided that the intervener explicitly applied for the costs in his pleadings.183 The Courts apply the latter condition strictly. For instance, in EDP v Commission, the intervener and the main parties were ordered to bear their own costs in relation to the intervention because the successful intervener (supporting the defendant) did not request that the applicant be ordered to pay the costs.184 5.307

Where a successful intervener is ordered to bear his own costs. However, even successful interveners may be ordered to bear their own costs.185 When deciding in this respect, the Courts take into account how strongly the interests of the interveners are affected by the outcome of the litigation and how useful their arguments were. In the Industrie des poudres sphériques v Council case concerning an action for annulment of an anti-dumping regulation, the General Court differentiated between the two interveners supporting the Council: the sole producer in the Union of like products (being in the same market as the dumped products) could recover its costs from the unsuccessful applicant, whereas the other intervener, an association defending the general interests of EU industry, but not an EU producer directly affected by the dumping, was ordered to bear its own costs.186 Likewise, in the Leclerc v Commission judgment, the General Court held that the intervener to which the contested decision was addressed could recover its costs from the unsuccessful applicant, whereas the other three interveners (associations representing the interests of perfume and cosmetics producers and retailers) had to bear their own costs because they had a less direct interest as to the outcome of the action and, in addition, made only general points in the interest of their members without adding any decisive elements to the Commission’s arguments.187 The General Court has also ordered a successful intervener to bear its own costs on account that it failed to lodge its statement in intervention in due time and at the hearing merely referred to the pleadings of the applicant’s counsel.188

5.308

An intervener supporting the unsuccessful party is normally ordered to pay the costs. Conversely, where the intervener (whether privileged or non-privileged) supported the unsuccessful party, he may be ordered to bear the costs together with that party.189 In line with the principle that costs must be expressly sought, interveners may normally be obliged to bear costs beyond their own only if one of the parties made an application to that effect. In practice, it is the party supported by the intervener who has an interest in the intervener’s bearing costs beyond his own, as the opposite party’s costs – if the latter becomes successful – will be reimbursed by the unsuccessful main party anyway. Nothing prevents the supported party from responding to the head of claim of the opposite party requesting him to bear the costs alone by asking the Court to order that the costs be borne also by the intervener.190 However, such requests appear to be extremely rare in practice, possibly because claims of a party as regards costs are normally drafted under the assumption that he would be successful. Interveners supporting the unsuccessful party will therefore bear at least their own costs (where none of the main parties sought the payment of

183 Under CJ RoP, Art 138(1) and GC RoP, Art 134(1), ‘the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings’. 184 Case T-87/05 EDP v Commission [EU:T:2005:333] para 243. 185 CJ RoP, Art 140(3); GC RoP, Art 138(3). 186 Case T-2/95 Industrie des poudres sphériques v Council [EU:T:1998:242] paras 395–396. 187 Case T-88/92 Leclerc v Commission [EU:T:1996:192] paras 199–200. 188 Case T-368/94 Blanchard v Commission [EU:T:1996:2] para 128. 189 See Joined Cases T-109/02, T-118/02, T-122/02, T-125/02, T-126/02, T-128/02, T-129/02, T-132/02 and T-136/02 Bolloré and Others v Commission (carbonless paper cartel) [EU:T:2007:115], where Belgium, intervening in support of an applicant, was ordered to bear the costs which its intervention had caused to the Commission. 190 See Case T-407/05 SAEME v OHIM – Racke (REVIAN’s) [EU:T:2007:329] para 69.

Costs in Interventions 651 any costs by the intervener or where the Courts favour such a solution for reasons specific to the case) and, in addition, may be ordered to bear the costs incurred by the opposite party as a result of the intervention.191 Partial success of the supported main party. If the party supported by the intervener becomes successful only in respect of some of his claims, the intervener may bear his own costs or obtain the same order on costs as the party it supported, ie a part of his costs will be borne by the unsuccessful party.192

5.309

(ii) Taxation of Costs Determining the recoverable part. The recoverable part of the fees of an intervener’s lawyer cannot, as a rule, be higher than those of the main party,193 because the procedural task of an intervener is significantly aided by the work of the main party in whose support he has intervened194 and because, an intervention being subordinate to the main action, it cannot normally present as many difficulties as that action.195 However, where the intervener supports an EU institution, the Courts take into account the fact that the EU institution’s defence is undertaken not only by possible outside lawyers, but also by its agents. The General Court has already held that since the fees of the EU institution’s lawyer did not include the working hours devoted to the case by that institution’s agents, the total amount of the costs claimed by the EU institution is not sufficiently representative of the workload or of the difficulties which the case presented for it and, as a result, could not serve as a point of reference for assessing the amount of the fees of the intervener’s lawyers. Such a situation may justify that higher amounts be reimbursed to the intervener in respect of lawyer’s fees than to the EU institution it supports.196

191 Case C-118/77 ISO v Council [EU:C:1979:92]; Case C-120/77 Koyo Seiko v Council [EU:C:1979:94]; Case T-70/92 Florimex and Vereniging van Groothandelaren in Bloemkwekerijprodukten v Commission [EU:T:1997:69]. 192 See, eg Case T-16/91 RENV Rendo and Others v Commission [EU:T:1996:189]. 193 Order of 7 March 2000 in Case T-2/95 DEP Industrie des poudres sphériques v Council [EU:T:2000:57] para 23. 194 Order of 4 February 1993 in Case C-191/86 DEP TEC v Council [not reported]. 195 Order of 22 March 2000 in Case T-97/95 DEP II Sinochem v Council [EU:T:2000:83] para 17. 196 Order of 7 March 2000 in Case T-2/95 DEP Industrie des poudres sphériques v Council [EU:T:2000:57] para 25.

5.310

5.5. Joinder of Cases [written by Viktor Bottka1] 5.311

Joining cases concerning the same subject matter. The joinder of cases is a procedural step that may be taken, at any stage of the procedure, either on the initiative of a party or of the relevant EU Court’s own motion. The President2 decides whether to join the cases after obtaining the parties’ views,3 save in preliminary rulings, where the Court of Justice may join cases without asking for the interested parties’ observations.4 The joinder is performed for ‘two or more cases concerning the same subject matter’, on account of the connection between them. In respect of the Court of Justice, a further condition is laid down in the Rules of Procedure of the Court of Justice (CJ RoP), under which only cases ‘of the same type’ may be joined.5 This means, for instance, that a preliminary ruling case cannot be joined with an appeal or with a direct action. Before both EU Courts, cases may be joined for the purposes of the written or oral part of the procedure. The joinder may also be performed later, only for the purposes of the judgment of the Court of Justice or of the judgment or order of the General Court that closes proceedings.6 In practice, the joinder typically occurs shortly before the oral hearing, once the written pleadings have been submitted. In theory, joined cases may be disjoined, after asking the parties, but this is very rare.7

5.312

Practical consequences of a joinder. Where a joinder is decided before the hearing, it implies that a single oral hearing is held in these similar cases and a single judgment8 is issued, the case numbers being indicated in the joint format.9 Where it is envisaged that several cases will be joined, the parties are given an opportunity to submit applications for confidential treatment (cf para 5.314).10 In competition cases, certain parties may oppose the joining of cases for tactical reasons, eg in order to delay the final enforcement of the fine. The observations of the European Commission on a proposed joinder usually relate to reminding the General Court that even if cases are joined, each party may rely only on its own arguments and may not introduce new pleas taken over from the submissions of other parties. However, on appeal, such an argument is ineffective: where the General Court has joined two cases and given a single judgment, which

1 Member of the Legal Service, European Commission. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the European Commission. 2 cf paras 1.36 and 1.61. 3 CJ RoP, Art 54(1)–(2). These provisions do not explicitly provide for the possibility of the parties to apply for joinder; nonetheless, they may do so in practice. GC RoP, Art 68(1)–(2) contain the corresponding rules. They specify that before the General Court, an application for joinder may only be made by a main party, and only the main parties may submit observations on the proposed joinder. 4 CJ RoP, Art 54(2). 5 CJ RoP, Art 54(1). 6 CJ RoP, Art 54(1); GC RoP, Art 68(1). 7 CJ RoP, Art 54(3); GC RoP, Art 68(3). See Order of 16 November 1998 in Joined Cases T-163/97 and T-179/97 Nederlandse Antillen v Council and Commission [EU:T:1998:260] para 13, which disjoined these cases and stayed proceedings in one of them until the Court of Justice could rule on a parallel case initiated by a Member State. 8 The General Court may also issue a single order, not only a judgment. 9 See, eg Joined Cases T-117/07 and T-121/07 Areva and Others v Commission (gas insulated switchgear cartel) [EU:T:2011:69]. 10 GC RoP, Art 68(4); GC PR, paras 176 and 179–187.

Joinder of Cases 653 answers all the pleas submitted by the parties to the proceedings before that 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, provided that that reasoning adversely affects him.11 At the oral hearing in joined cases, the Commission (often being the single defendant before the General Court or respondent in an appeal case) usually asks for a longer speaking time to be able to respond to all the arguments of the multiple adversaries. Examples. Joinders often occur in trade mark cases, and the General Court usually joins such cases due to their connection (eg a party simultaneously challenging the registration of several related trade marks).12 In competition cases, it is customary to join actions for annulment brought by entities which are held jointly liable for a fine (eg a parent company and a subsidiary, or the successive parents of the same subsidiary) against the same Commission decision and then likewise the Court of Justice may join the appeals of all parties if the cases continue.13 An advantage of joining cases before the General Court between jointly liable entities is that the General Court can more easily extend the benefit of a fine reduction achieved by one party to the other, if the conditions are met.14 Actions for annulment in State aid cases brought by different parties against the same Commission decision may be joined if they are lodged around the same time (the deadline for bringing the action by the addressee of the decision starts from the decision’s notification, while for other parties it starts from the date of its publication in the Official Journal or from the date when it comes to their attention).15 On appeal, cases may be joined even if they were separate at first instance.16

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Confidentiality issues. Under the Rules of Procedure of the General Court (GC RoP), procedural documents included in the files of the joined cases shall be served via e-Curia on the parties who request this.17 It may, however, occur that private parties who initially brought separate cases, joined later by the General Court, have conflicting economic interests or would prefer, for any other reason, to keep certain information in their pleadings and annexed items confidential vis-à-vis the other private parties.18 Therefore, where a joinder takes place, the President19 may, on application by a party to the case (including interveners), order that certain information from the case file which is claimed to be confidential be excluded from service on persons who are

5.314

11 See, eg Order of 7 December 2017 in Case C-323/16 P Eurallumina v Commission [EU:C:2017:952] para 26; Case C-444/11 P Team Relocations and Others v Commission (Belgian removal services cartel) [EU:C:2013:464] para 34; Joined Cases C-12/13 P and C-13/13 P Buono and Others v Commission [EU:C:2014:2284] para 52. 12 See, eg Joined Cases T-139/10, T-280/10 to T-285/10 and T-349/10 to T-352/10 Milux v OHMI (REFLUXCONTROL) [EU:T:2011:98] paras 6–7. 13 See, eg Case T-117/07 Areva and Others v Commission and Case T-121/07 Alstom v Commission, which were joined for the purposes of the judgment by the General Court (Joined Cases T-117/07 and T-121/07 Areva and Others v Commission (gas insulated switchgear cartel) [EU:T:2011:69]) and then, even though separate appeals were brought by Areva and Alstom, the cases were equally joined by the Court of Justice (Joined Cases C-247/11 P and C-253/11 P Areva and Others v Commission (gas insulated switchgear cartel) [EU:C:2014:257]). 14 It follows from the Total SA judgment that (unless there are specific individual factors justifying a higher fine for the parent with derived liability) the General Court has to take into account the successful arguments raised by the subsidiary, which result in the reduction of the fine imposed on the subsidiary, when ruling on the application separately introduced by the parent company, even if the latter did not raise those arguments before the General Court (Case C-597/13 Total v Commission [EU:C:2015:613] paras 31–43). See also Case C-286/11 P Commission v Tomkins [EU:C:2013:29]. 15 See, eg Joined Cases T-515/13 and T-719/13 Spain and Others v Commission [EU:T:2015:1004]. 16 See, eg Joined Cases C-164/15 P and C-165/15 P Commission v Aer Lingus and Ryanair Designated Activity Company [EU:C:2016:990]. 17 GC RoP, Art 68(4). 18 The confidentiality issues in joinders are thus similar to those that may emerge in interventions (cf para 5.271 et seq); however, in joinders, the other parties cannot oppose confidential treatment. 19 cf para 1.61.

654 Joinder of Cases parties to the other cases with which the case is joined.20 The procedure is regulated in detail in the Practice Rules of the General Court (GC PR). First, where it is envisaged that several cases will be joined, the parties are requested to state, within the time limit prescribed by the Registrar, whether they wish to seek confidential treatment in respect of certain information included in the procedural documents and material already placed on the files of the cases concerned by the joinder. If there is no response to this letter of the Registrar, the materials already on the case file will be accessible to the other parties. Secondly, when a party wishes to apply for confidentiality in respect of documents submitted later in the procedure, he must submit an application to that effect simultaneously with the submission of the new documents. In the absence of such an application, the procedural documents and items lodged will be made available to the other parties to the joined cases.21 The application for confidential treatment must be made by a separate document, may not contain any confidential information, and must be sufficiently detailed and reasoned. It must be accompanied by a non-confidential version of the document or item at issue. In this regard, the same rules apply as in the case of applications for confidentiality made in the context of interventions22 (cf paras 5.273–5.275).

20 GC 21 GC 22 GC

RoP, Art 68(4); GC PR, para 176. PR, paras 185–186. PR, paras 179–184.

5.6. Stay of Proceedings [written by Viktor Bottka1] Notion. Staying the proceedings (also referred to as suspension) is a procedural tool enabling both EU Courts to suspend their proceedings in one or more cases until a judgment is rendered in a parallel case concerning a similar legal issue or in order to allow time for the parties to reach a settlement. There is no situation in which a suspension would be obligatory, but certain examples are provided in the Rules of Procedure when the Courts may, and usually do, suspend their proceedings. The proceedings are stayed by order of the Court of Justice in some cases,2 or by decision of the President in others.3

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Certain situations justifying suspension are codified. First, three situations of staying proceedings are expressly foreseen in Article 54(3) of the Statute:

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Where the Court of Justice and the General Court are seised of cases in which the same relief is sought, the same issue of interpretation is raised or the validity of the same act is called in question, the General Court may, after hearing the parties, stay the proceedings before it until such time as the Court of Justice has delivered judgment.

(i) Same relief may be sought before the General Court and the Court of Justice, for instance, where the annulment of an act of the European Parliament and the Council is sought, by two separate actions, respectively by a natural or legal person before the General Court and by a Member State or the European Commission before the Court of Justice. (ii) As to the same issue of interpretation, suspension of a case before the General Court takes place quite frequently in the context of appeals, when the General Court is seised of several subsequent actions that require decision on a novel legal issue. When the judgment of the General Court in the first of these actions is grounded on a certain interpretation of an EU law provision, and is appealed before the Court of Justice on that very point of law, the General Court usually suspends the proceedings in the second action until the delivery of the appeal judgment, in order to avoid that an adverse judgment on appeal regarding the first action renders its judgment in the second case vulnerable.4 (iii) As to parallel cases before the two EU Courts concerning the validity of the same act, the General Court may well stay its proceedings where the same EU act is challenged in an action for annulment brought before the General Court and via a preliminary reference on validity made to the Court of Justice. Under the rules of the Statute, not only the General Court, but also the Court of Justice may suspend its proceedings in the same (i)–(iii) situations. If the Court of Justice suspends, the General Court must continue its proceedings.5 Secondly, another

1 Member of the Legal Service, European Commission. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the European Commission. 2 CJ RoP, Art 55(a). 3 CJ RoP, Art 55(b); GC RoP, Art 71(1). On the meaning of the term ‘President’, cf paras 1.36 and 1.61. 4 See, eg Joined Cases T-129/07 and T-130/07 Ireland and Aughinish Alumina v Commission [EU:T:2019:610] paras 33–34. 5 Statute, Art 54(3).

656 Stay of Proceedings set of situations is described in Article 69(b) of the GC RoP: the General Court may stay its proceedings where an appeal is brought before the Court of Justice against a decision of the General Court disposing of the substantive issues in part only, disposing of a procedural issue concerning a plea of lack of competence or inadmissibility or dismissing an application to intervene.

(iv) The General Court may dispose of substantive issues in part only when, for example, it delivers an interlocutory judgment in an action for damages by establishing the non-contractual liability of the EU only, without deciding on the actual amount of damages to be awarded.6 If this interlocutory judgment is appealed, the General Court will normally stay its proceedings, as there is no point in quantifying damages where the liability itself is still in question. (v) The same applies where the General Court issues an interlocutory judgment or order declaring the action admissible, and that decision is appealed by the defendant. Again, good administration of justice may well require that the General Court does not examine the substance of the case where it may still be dismissed as inadmissible. (vi) The General Court may also stay the proceedings where it has dismissed an application to intervene and the dismissal order is appealed. Indeed, by staying the proceedings, the General Court may avoid the risk of repeating the first instance proceedings from the stage where the application to intervene was lodged; such a repetition would be the necessary consequence of its order refusing intervention being quashed on appeal7 (cf para 4.450). Thirdly, Article 163 of the GC RoP foresees that (vii) the treatment of certain applications relating to judgments and orders (eg a request for interpretation or revision, cf Chapter 5.11. Applications Relating to Judgments and Orders) may be suspended if there is a parallel appeal against the same judgments and orders. 5.317

Where proper administration of justice requires suspension. However, the cases of suspension are not exhaustively listed in the Statute and the Rules of Procedure, and both EU Courts may order a suspension in all situations where the proper administration of justice so requires.8 For instance, suspension is often applied where the relevant Court is seised of multiple cases directed against the same EU act or against several EU acts which are virtually identical as to their content but are addressed to different persons. In this scenario, the relevant Court may choose a pilot case that it examines first and provides a detailed reasoning in the final judgment. The other similar cases may be formally stayed until the delivery of the judgment in the pilot case, and be decided afterwards in judgments or orders that reproduce the reasoning of the pilot judgment (cf paras 4.364–4.365 and 4.443–4.444).9 Good administration of justice may also justify that the EU Courts stay the proceedings when they are informed that the parties are engaged in negotiations with a view to reaching an out-of-court settlement (cf para 5.318). Finally, it is worth mentioning that the EU Courts are not bound by any statutory time limit to issue a final judgment or order on the case. Therefore, in the interest of proper administration of justice, they may also informally delay taking procedural steps and the delivery of the final decision, eg in situations which would justify suspension. 6 See, eg Case C-152/88 Sofrimport v Commission [EU:C:1990:259]. 7 GC RoP, Art 217(2). 8 CJ RoP, Art 55(b); GC RoP, Art 69(d). 9 A new instrument introduced by Art 132 of the GC RoP makes it possible for the General Court to uphold an action as manifestly well founded in a reasoned order. This tool is primarily used where the General Court has already decided on all factual and legal issues in a pilot case, and merely refers to the findings in the pilot case in the subsequent reasoned orders. See, eg Case T-290/14 Portnov v Council [EU:T:2015:806], a pilot case to which references were made in Order of 10 June 2016 in Case T-381/14 Pshonka v Council [EU:T:2016:361]; Order of 10 June 2016 in Case T-494/14 Klymenko v Council [EU:T:2016:360].

Stay of Proceedings 657 Staying the proceedings at the request of the parties. The main parties may jointly request a suspension,10 and this is usually done where they are discussing a possible settlement as a result of which the case may be discontinued.11 This raises the question of whether the litigation is in the hands of the Court or the parties. While a request for suspension may be refused given the advanced stage of the proceedings,12 if the applicant withdraws his action, the EU Courts must close the case by order removing the case from the register, without delivering a judgment on the merits.13 Where only one party requests suspension and the other party opposes it, the Courts will normally not stay the proceedings, unless suspension is justified by proper administration of justice.

5.318

Effects of the suspension. As regards the parties to the suspended case, time ceases to run for them for the purposes of procedural time limits.14 Other periods, which are suspended for the duration of the Court proceedings, continue to be suspended (eg the limitation period for imposing a fine under Article 25(6) of Regulation 1/200315).

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Length of the suspension varies. The suspension order usually fixes the length of stay, either by specifying it in months or years, or by defining its end date by reference to a future event (eg suspension may be granted until the delivery of the judgment in an appeal case or in a parallel case that concerns the same legal issue). On such a fixed date of expiry, the suspension ends automatically. In all other cases (no end date fixed or the President of the Chamber decides to restart the procedure before the term indicated), the suspension ends with an order or decision to resume proceedings adopted through the same procedure as the suspension order.16 Normally the suspension lasts for about two or three years, until an appeal case or a parallel case is terminated. The suspension may last longer if the parallel case is referred back to the General Court in an RENV case (short for ‘renvoi’, ‘sending back’ in French; see Section 4.4.6. Procedure in Cases Referred Back to the General Court) and may continue also for the duration of the subsequent appeal against the RENV case judgment.17 The duration mostly depends on the parties when suspension is used to negotiate an out-of-court settlement.

5.320

10 GC RoP, Art 69(c). Technically, the application for staying the proceedings by a main party may be lodged with the agreement of the other party. 11 Suspensions were requested and granted before withdrawing the following cases: Order of 5 August 2015 in Case T-137/15 Parker Hannifin Manufacturing and Parker-Hannifin v Commission [EU:T:2015:579]; Order of 2 March 2016 in Case T-98/14 Société générale v Commission [EU:T:2016:131]. See also Chapter 5.8. Discontinuance, Withdrawal, Settlement. 12 The judgment of 13 June 2012 in Case T-277/11 Hotel Reservation Service Robert Ragge v OHMI – Promotora Imperial (iHotel) [EU:T:2012:295] mentions that requests for suspension agreed by both parties were rejected on 12 March 2012 and 23 April 2012. 13 For instance, in Case T-273/04 Brandt industries v Commission, the applicant discontinued the proceedings two days before the scheduled delivery of the judgment in open court. The General Court removed the case from the register by Order of 23 May 2008 in Case T-273/04 Brandt industries v Commission [EU:T:2008:166]. 14 CJ RoP, Art 55(5); GC RoP, Art 71(2). 15 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). Under Art 25(6), ‘The limitation period for the imposition of fines or periodic penalty payments shall be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice’. 16 CJ RoP, Art 55(2) and (6); GC RoP, Arts 70(2) and 71(3). 17 An example of a very long suspension was the litigation in the Alumina State aid cases, related to exemptions from excise duty for the production of alumina in several countries. The Commission adopted two similar decisions in 2005 and 2007, finding incompatible State aid for two subsequent periods, and both gave rise to litigation. The actions for annulment against the second decision (eg in Joined Cases T-129/07 and T-130/07 Ireland and Aughinish Alumina v Commission [EU:T:2019:610] and Joined Cases T-119/07 and T-207/07 Italy and Eurallumina v Commission [EU:T:2019:613]) were suspended for more than 10 years until the adoption of the final orders by the Court of Justice regarding the legality of the first Commission decision (Order of 7 December 2017 in Case C-323/16 P Eurallumina v Commission [EU:C:2017:952]; Order of 7 December 2017 C-373/16 P Aughinish Alumina v Commission [EU:C:2017:953]; Order of 7 December 2017 in Case C-369/16 P Ireland v Commission [EU:C:2017:955]).

5.7. Inadmissibility and No Need to Adjudicate [written by Viktor Bottka1]

5.7.1. Inadmissibility 5.321

Notion. The admissibility of an action or a preliminary reference is a prior question that the EU Courts may check before addressing the substance of the case. Treating only the admissible cases is in line with the principle of economy of procedure and efficient litigation. The EU Courts may find inadmissibility of their own motion, but most often they assess admissibility on the request of the defendant. First, in the context of direct actions,2 intellectual property cases,3 and appeals, the consequence of (i) inadmissibility of a particular head of claim or plea in law is that its substance is not examined by the Courts; similarly, (ii) where the ground for inadmissibility affects the entire action or appeal, it will be dismissed as inadmissible without any ruling on its merits. The present chapter only relates to the second scenario, as the inadmissibility of the entire action is in most cases decided in a special procedure. Indeed, where the defendant raises a formal plea of inadmissibility instead of submitting the defence,4 or the relevant Court raises the issue of inadmissibility of its own motion at an early stage of the procedure, the written part of the procedure takes a different course from what is ordinary,5 and observations will only be asked by the Courts from the parties as to the issue of admissibility. Secondly, the Court of Justice may also find a preliminary reference inadmissible. As in the case of direct actions, the ruling of the Court of Justice will be confined to setting out the grounds for inadmissibility, without any analysis on the substance of the case.

5.7.1.1. Inadmissibility of Direct Actions, Intellectual Property Cases, Appeals 5.322

Inadmissibility is an absolute bar to proceeding with a case that can be raised by the Courts ex officio or by a party. Since the conditions for the admissibility of an action or appeal relate to the question whether there is an absolute bar to proceedings, the EU Courts may at any time, of their own motion (ex officio), decide to rule by reasoned order on whether the action or appeal is inadmissible6 (cf paras 5.324–5.326) or manifestly inadmissible7 (cf paras 5.327–5.328). Furthermore, the defendant may lodge a formal plea of inadmissibility8 (cf para 5.330) or raise the issue of inadmissibility informally in his pleadings9 (cf para 5.334). The possibility of raising 1 Member of the Legal Service, European Commission. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the European Commission. 2 cf para 4.100. 3 cf para 3.519. 4 Or response in appeals and in intellectual property cases. 5 The ordinary procedure is described in Chapter 4.2. Procedure in Direct Actions, Chapter 4.3. Procedure in Intellectual Property Cases and in Chapter 4.4. Procedure in Appeals. 6 CJ RoP, Arts 150 and 190(1); GC RoP, Arts 129 and 191. 7 CJ RoP, Art 53(2); GC RoP, Arts 126 and 191. 8 In intellectual property cases, when intervening, the other main party before the Board of Appeal may also raise a formal plea of inadmissibility. 9 In direct actions and in appeals, interveners may not lodge a formal plea of inadmissibility but can raise this issue informally in their pleadings (cf para 5.296).

Inadmissibility 659 inadmissibility ex officio also means that even if a defendant fails to rely on inadmissibility in his first written submission, the EU Courts may still take it into account if it is raised subsequently.10 However, the EU Courts are not obliged to assess admissibility if no party raises this issue. Decisions taken by the Courts. If the relevant Court finds ex officio (possibly upon an informal indication by a party) that the action or appeal is inadmissible, it dismisses it in a reasoned order without any examination of the substance. If inadmissibility is raised by a party, the Court may either decide on this issue in a separate order or join it to the substance of the case and decide on it in the final judgment or order closing the case (cf para 5.335).11

5.323

(i) Inadmissibility Raised by the Courts of their Own Motion Absolute bar to proceeding with a case – procedure (1), including the hearing of the parties. Under Article 150 of the CJ RoP, on a proposal from the Judge-Rapporteur, the Court of Justice may at any time, of its own motion, after hearing the parties and the Advocate General, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case. Inadmissibility constitutes such an absolute bar to proceedings. This procedure is applicable to direct actions and also to appeals.12 With respect to the General Court, Article 129 of the GC RoP contains nearly identical rules. It provides that on a proposal from the Judge-Rapporteur, the General Court may at any time, of its own motion, after hearing the main parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case. This provision is applicable to direct actions and to intellectual property cases.13 It should be emphasised that, under this procedure, while the Courts may raise the issue of inadmissibility of their own motion, they must hear the parties before concluding on the presence of an absolute bar to proceeding with the case and dismiss it as inadmissible. In particular, the applicant or appellant thus obtains the possibility to express his views on the issue of admissibility before a final decision in this regard.

5.324

Procedural aspects. Where the Court hearing the case raises the issue of inadmissibility of its own motion under this procedure (1) (cf para 5.324), it will invite the parties (only the main parties in the case of the General Court) to submit their observations limited to admissibility. Where inadmissibility is raised formally by the defendant in a plea of inadmissibility (cf para 5.330), or informally in the defence or in another pleading by the defendant or by an intervener, the relevant Court must always invite the applicant to submit his observations on admissibility (cf para 5.331).

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Practice. The main difference between dismissing an action or appeal as inadmissible under this procedure (1), regulated in Article 150 of the CJ RoP and in Article 129 of the GC RoP (cf para 5.324), as opposed to procedure (2), applicable in case of manifest inadmissibility or lack of competence examined below (cf para 5.327), is that the applicant must always be heard under the first set of procedural rules, while he may not be heard under the second. Therefore, the Courts tend to apply procedure (1) where inadmissibility cannot be declared mechanically, as a decision in this regard depends on the assessment of factual circumstances or

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10 See, eg Case T-194/10 Hungary v Commission (Vinohradnícka oblast’ Tokaj) [EU:T:2012:587] para 17. 11 Exceptionally, the Courts may also leave the admissibility question unanswered if they dismiss the action on the substance, by applying the Boehringer case law (Case C-23/00 P Council v Boehringer [EU:C:2002:118]). 12 CJ RoP, Art 190(1). 13 GC RoP, Art 191.

660 Inadmissibility and No Need to Adjudicate legal issues on which the parties (in particular the applicant) ought to be allowed to take position by reason of procedural fairness. Several grounds for inadmissibility are thus usually treated under procedure (1), eg the lack of standing or interest to act to bring an action for annulment (cf paras 3.109 and 3.128), or the situation where such an action has been brought against a nonreviewable act (cf para 3.08). 5.327

Manifest inadmissibility or lack of competence – procedure (2), in which the parties do not need to be heard. With respect to the Court of Justice, Article 53(2) of the CJ RoP provides that where it is clear that the Court has no jurisdiction to hear and determine a case or where a request or an application is manifestly inadmissible, the Court may, after hearing the Advocate General, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

The last part of this sentence implies that such a reasoned order dismissing a direct action as manifestly inadmissible may be taken without hearing the parties. Article 181 of the CJ RoP allows the Court of Justice to dismiss also an appeal or cross-appeal as manifestly inadmissible without hearing the parties. With respect to the General Court, the corresponding rules are laid down in Article 126 of the GC RoP. The latter foresees that Where it is clear that the General Court has no jurisdiction to hear and determine an action or where the action is manifestly inadmissible … the General Court may, on a proposal from the JudgeRapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

This provision applies both to direct actions and to intellectual property cases.14 5.328

Practice. ‘Not taking any further steps in the proceedings’ entails in particular the possibility that an action is rejected or an appeal dismissed even before it is notified to the other party. The General Court dismisses in this summary way, for example, actions for annulment brought against a Member State as manifestly inadmissible, as it clearly has no jurisdiction to hear such cases (cf para 3.91).15 As another example, actions for annulment (cf para 3.220) or appeals brought out of time are normally also dismissed by both EU Courts as manifestly inadmissible, without notification to the defendant and without hearing the parties. One particular consequence of manifest inadmissibility is that legal aid is refused in such cases before the General Court.16 Before the Court of Justice, a cross-appeal is deemed to be devoid of purpose in certain cases of manifest inadmissibility (eg for non-compliance with the time limit for lodging an appeal).17

5.329

Absolute bar to proceeding with the case and manifest inadmissibility or lack of competence. It is important to note that even if the provisions on manifest inadmissibility or lack of competence are relied on (cf para 5.327), nothing prevents the Courts from asking for the observations of the parties on the issue of admissibility. In such cases, from the point of view of the parties, there is no material difference between the application of the rules on manifest inadmissibility or lack of competence (cf para 5.327) and those on absolute bar to proceeding with the case (cf para 5.324). Furthermore, manifest inadmissibility and lack of competence are par excellence absolute bars to proceeding with the case. Therefore, in some situations, these two distinct sets of procedural rules may be applied cumulatively by the Courts and the final order dismissing the 14 GC RoP, Art 191. 15 Order of 4 June 2013 in Case T-213/12 Elitaliana v Eulex Kosovo [EU:T:2013:292]; Order of 8 March 2017 in Case T-380/16 Popescu v Romania [EU:T:2017:159]. 16 GC RoP, Art 146(2). 17 CJ RoP, Art 183.

Inadmissibility 661 action or appeal as inadmissible may refer to both. However, if the Courts decide to dismiss an action without hearing the parties, only Article 53(2) of the CJ RoP or Article 126 of the GC RoP on manifest inadmissibility or lack of competence may be relied on. (ii) Inadmissibility Raised by a Party Formal plea of inadmissibility. The defendant (respondent in appeals) may submit a formal plea of inadmissibility regarding the action or appeal by a separate document, as a preliminary objection not going to the substance of the case.18 The defendant may choose this option instead of submitting the defence (response in intellectual property cases and in appeals). In such a case, the plea of inadmissibility must be filed within the time limit open for filing the defence or the response (two months plus 10 days counted from the service of the application).19 The formal plea of inadmissibility is limited to admissibility issues. Its procedural advantage is that the defendant does not need to respond to the substantive arguments raised in the application. The plea of inadmissibility must state the pleas in law and arguments relied on (limited to admissibility issues), and the form of order sought by the party. The latter is normally a request to the relevant Court to dismiss the action or appeal as inadmissible. Supporting items and documents must be annexed.20 Interveners in direct actions are not entitled to file a formal plea of inadmissibility if the defendant has not done so. However, they may draw the Court’s attention to inadmissibility in their pleadings independently of the main parties (cf para 5.296). Interveners in intellectual property cases may lodge a formal plea of inadmissibility, since they enjoy the same procedural rights as the main parties (cf para 5.302).

5.330

Observations by the applicant in direct actions and in intellectual property cases. In direct actions and in intellectual property cases, as soon as the plea of inadmissibility has been submitted, the President21 prescribes a time limit within which the applicant may submit his observations on the plea of inadmissibility. These observations contain pleas in law and form of order sought,22 the latter normally being a request to the relevant Court to declare the action admissible.

5.331

Reply and rejoinder in an appeal procedure following a plea of inadmissibility. In the appeal procedure, the appeal and the response may be supplemented by a reply and a rejoinder, following a reasoned application submitted by the appellant. Under the CJ RoP, such requests are normally accepted, in particular to enable the appellant to present his views on a formal plea of inadmissibility or on new matters relied on in the response regarding admissibility.23

5.332

Decision on applications to intervene following a plea of inadmissibility. In direct actions, where the defendant lodges a plea of inadmissibility, the General Court does not give a decision

5.333

18 CJ RoP, Art 151(1); GC RoP, Art 130(1). 19 The Commission endeavours to submit a separate plea of inadmissibility only in justified cases and rather soon following the notification of a case (depending on the complexity of the case). This is done in order not to appear that it wishes to extend the time available for lodging its defence in a direct action. The reason for this is that if the Court rejects the plea of inadmissibility or joins that issue to the substance, then it sets an additional deadline for the Commission to prepare its defence on the main case. Such an additional time is not available to the party initiating the case. 20 CJ RoP, Art 151(2); GC RoP, Art 130(3). 21 cf paras 1.36 and 1.61. 22 CJ RoP, Art 151(3); GC RoP, Art 130(4). 23 CJ RoP, Art 175.

662 Inadmissibility and No Need to Adjudicate on the application to intervene (cf para 5.266) until after the plea has been rejected or the decision on the plea reserved.24 There is no such explicit rule in the CJ RoP, but the practice is similar. 5.334

Raising inadmissibility issues informally in the defence or in other pleadings. The defendant may also choose to raise the issue of the application’s inadmissibility informally, in his defence (response in intellectual property cases and appeals). The Judge-Rapporteur will always examine the defence, upon its reception, in order to verify if it contains admissibility issues (cf para 4.220). If the relevant Court finds it justified from the point of view of case management, it may prescribe a time limit for the applicant to submit his observations limited to inadmissibility, instead of inviting him to lodge the reply. The Court may nonetheless also follow the regular course of the procedure and set a deadline for submitting the reply (cf paras 4.221–4.222), which equally gives the applicant the opportunity to put forward his counterarguments regarding admissibility. Since the Courts may assess admissibility of their own motion, nothing prevents the defendant or an intervener from questioning admissibility at whichever stage of the procedure, without raising a formal plea of inadmissibility.

5.335

Assessment by the EU Courts. When the Court hearing the case is presented with a formal plea of inadmissibility,25 it may: (i) dismiss the action or appeal as inadmissible in a reasoned order (exceptionally in a judgment), usually without arranging for an oral hearing; (ii) declare the case admissible in an interlocutory order and continue the procedure with substantive issues (this is a rare solution); or (iii) join the decision on admissibility to the substance of the case and decide on admissibility in the final judgment or order closing the case. In the situations (ii) and (iii), the Court will prescribe a time limit for the next steps of the procedure,26 which is normally the submission of the defence, and substantive issues will be debated. Exceptionally, the Court may not give a decision on admissibility at all, by applying the Boehringer27 case law. Under this precedent, for reasons of economy of procedure and proper administration of justice, the Court may reject the case on substance without addressing admissibility at all. The Courts may opt for this solution where they can give a clear-cut negative decision on the substance, while a decision on admissibility would require a complex analysis. In such a case, there is no appealable decision on admissibility,28 but a cross-appeal could be submitted asking the Court of Justice to decide first on the merits of the main appeal case and, if that were to lead to setting aside the first instance judgment on substance, then to rule itself on the admissibility of the action at first instance. In all cases where the General Court rules on admissibility by separate order or within its judgment on the main case, that part of the decision is subject to an appeal to the Court (Article 56 of the Statute). The above also applies mutatis mutandis where admissibility is questioned informally by a party without raising a plea of inadmissibility. (iii) Typical Grounds for Finding Inadmissibility

5.336

General. Actions which fail to comply with the essential admissibility requirements related to each type of actions, as explained in the relevant chapters of this book,29 are dismissed as inadmissible. In the paragraphs below, the most frequent grounds of inadmissibility are briefly presented. 24 GC RoP, Art 144. 25 CJ RoP, Art 151; GC RoP, Art 130. 26 CJ RoP, Art 151(5); GC RoP, Art 151(8). 27 Case C-23/00 P Council v Boehringer [EU:C:2002:118] para 52. 28 Case C-415/14 P Quimitécnica.com and de Mello v Commission [EU:C:2016:58] para 45. 29 The main conditions for admissibility are indicated in the ‘Overview’ section in the relevant chapters in Part 3 (cf para 3.05 on actions for annulment, para 3.346 on actions for failure to act, para 3.399 on actions for damages, para 3.473 on staff cases, para 3.527 on intellectual property cases and para 3.589 on appeals).

Inadmissibility 663 Lack of standing. Lack of standing to bring a case is a common reason for inadmissibility, relating to the person of the applicant or the appellant (cf paras 3.128 et seq, 3.382, 3.420 and 3.602). Normally such a deficiency cannot be cured.30 The right to initiate the case (or standing) follows from the Treaty provisions31 setting out the conditions for each action or from Article 56 of the Statute in the case of appeals.

5.337

Lack of interest to act. The lack of any legal interest in bringing the action or appeal is another reason relating to the person of the applicant or appellant, which often leads to dismissing the case as inadmissible (cf paras 3.109, 3.382, 3.504, 3.534 and 3.609). The EU Courts verify ex officio the existence of such interest,32 which is a condition for admissibility, and its lack is an absolute bar to proceeding with the case. If the interest was present when lodging the application but disappears in the course of the litigation, the Courts issue an order finding that there is no need to adjudicate on it33 (cf Section 5.7.2. No Need to Adjudicate).

5.338

Non-reviewable act. An action for annulment brought against a non-reviewable act is inadmissible (cf Section 3.1.2. Reviewable Acts). In general, the acts that are not challengeable include non-binding, preparatory or intermediate measures, as well as confirmatory acts (which merely summarise or confirm a previous decision).

5.339

Lis pendens (or lodging the same plea twice). An action brought subsequently to another which is between the same parties, is on the basis of the same submissions and seeks annulment of the same legal measure must be dismissed as inadmissible on the ground of lis pendens.34

5.340

Res judicata. Final judgments or orders of the EU Courts on the substance of the case acquire the authority of res judicata and the same matter may no longer be litigated before them.

5.341

Action initiated out of time. The time limits for bringing proceedings are a matter of public policy and are not subject to the discretion of the parties or the Courts. The strict application of procedural rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice. In accordance with Article 45(2) of the Statute, no derogation from the procedural time limits may be made save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure. Moreover, the concept of excusable error must be interpreted strictly.35 Actions and appeals brought out of time, without any justification of the delay, are dismissed as inadmissible, normally without the parties being heard (cf para 4.98). As an exception, an action for damages may only be dismissed as late and inadmissible if the opposite party expressly raises this objection (cf para 4.78). The time limits to bring actions and appeals are specified in the relevant chapters of this book.

5.342

Lack of representation. A party must be represented by an agent or a lawyer.36 Failure to produce the required documents related to representation within the time limit prescribed

5.343

30 However, in cases initiated jointly by several persons, the Court may dispense with assessing the standing of further applicants if one of them has standing. 31 Each of the TFEU Treaty Arts 258, 263, 265, 267, 268, 270, 277 and 340 defines which persons may lodge an action or request for a preliminary ruling and under what conditions. 32 Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04 TV2/Danmark v Commission [EU:T:2008:457] para 62. 33 Case T-189/08 Forum 187 v Commission [EU:T:2010:99] para 63. 34 Joined Cases C-138/03, C-324/03 and C-431/03 Italy v Commission (structural funds) [EU:C:2005:714] para 64. 35 Case T-540/13 Société européenne des chaux et liants v ECHA [EU:T:2015:783] paras 29–32. 36 Statute, Art 19; CJ RoP, Art 119; GC RoP, Art 51.

664 Inadmissibility and No Need to Adjudicate usually renders the application or written pleadings formally inadmissible37 (cf para 4.48). If the initial a pplication was filed by a lawyer but later the party can no longer afford representation, the Courts will dismiss his case by stating that there is no need to adjudicate.38 5.344

Unclear action or appeal. The subject matter of the proceedings and a summary of the pleas in law on which the application is based constitute two essential elements which must be included in the application initiating proceedings.39 According to settled case law, the subject matter of the dispute and a summary of the pleas in law must be sufficiently clear and precise to enable the defendant to prepare its defence and the EU judicature to rule on the application. Likewise, the forms of order of such an application must be set out unambiguously so that that Court does not rule ultra petita or fail to rule on a complaint.40 If these crucial elements of the action or appeal are not set out clearly in the body of these pleadings, they will be dismissed as inadmissible (cf para 4.138).

5.7.1.2. Inadmissibility of Preliminary References 5.345

Procedure. Under Article 53(2) of the CJ RoP, the Court of Justice may dismiss a preliminary reference in a summary way, without the parties having been heard, on grounds of manifest inadmissibility or lack of competence (cf para 5.327). A preliminary reference may also be dismissed as inadmissible after concluding the regular procedure, that is, upon receiving the observations of the interested persons referred to in Article 23 of the Statute (cf para 4.463). The Court may address written questions to the interested persons on the admissibility of the preliminary reference or obtain their views in this regard at the hearing.

5.346

Frequent grounds of inadmissibility relating to preliminary references. A first set of frequent grounds for inadmissibility concern the features of the referring body. If the latter is not a ‘court or tribunal of a Member State’, within the meaning of Article 267(2) TFEU as interpreted by the case law, the reference will be dismissed as inadmissible (cf para 2.109 et seq). A second set of inadmissibility grounds relate to the substance of the main proceedings before the referring body, a reference only being admissible if a decision is necessary to enable the national court or tribunal to give judgment (cf para 2.131 et seq). A third set of frequent inadmissibility grounds derive from the content of the order for reference, which, if it is deficient, can make it impossible for the Court of Justice to provide a ruling which is useful for deciding the case (cf para 2.149). A fourth possible ground concerns preliminary references on the validity of EU acts, which are inadmissible if the party seeking incidental review had the right to bring directly an action for annulment against the EU act at issue, but failed to do so in good time41 (cf para 3.708 et seq).

5.7.2. No Need to Adjudicate 5.347

Action becoming devoid of purpose. Where an action or appeal before either of the EU Courts has become devoid of purpose (and if the applicant or appellant has not yet discontinued it),

37 Case T-388/10 Productos Derivados del Acero v Commission [EU:T:2014:1093] para 16; Order of 21 March 2011 in Joined Cases T-139/10, T-280/10 to T-285/10 and T-349/10 to T-352/10 Milux v OHIM [EU:T:2011:98] paras 12–13. 38 Order of 10 December 2014 in Case T-388/10 Productos Derivados del Acero v Commission [EU:T:2014:1093] para 16. 39 CJ RoP, Art 120; GC RoP, Art 76. 40 Case C-559/12 P France v Commission (State aid for La Poste) [EU:C:2014:217] para 39. 41 Case C-188/92 TWD Textilwerke Deggendorf [EU:C:1994:90] para 17; Case C-239/99 Nachi Europe [EU:C:2001:101] para 30.

No Need to Adjudicate 665 the Court in question may decide, of its own motion, to rule by reasoned order that there is no longer any need to adjudicate on it. In such a case, the action or appeal is dismissed without any examination of its substance. The Court hears the parties first and gives a decision as to costs in its discretion if the case is indeed terminated.42 A party may also draw the attention of the relevant Court to the fact that the action has become devoid of purpose. The GC RoP foresees in this regard that an application for a declaration that the action has become devoid of purpose must be submitted by a separate document.43 Practice. The most frequent context of closing the case because there is no longer any need to adjudicate is the loss of interest to bring an action44 or appeal in the course of the proceedings before the EU Courts (cf para 3.109 et seq). Indeed, an action for annulment does not proceed to a judgment if the annulment would no longer procure any benefit to the applicant,45 for example, because the institution or body that issued the challenged act modified or withdrew it during the proceedings before the EU Courts, or accepted the request of the applicant.46 Another example is where the applicant is liquidated without any successor company after lodging the action.47 An action also becomes devoid of purpose where a party who was initially represented can no longer afford any legal representation (cf para 4.48).48 In interim measures cases, if the Commission decision is already implemented, there is no possibility to suspend its operation and the case becomes devoid of purpose.49 The Rules of Procedure define two other situations: if the applicant ceases to reply to the General Court’s requests, the case may be declared devoid of purpose;50 and a cross-appeal becomes automatically devoid of purpose in case of the discontinuance or manifest inadmissibility of the appeal.51

5.348

Distinction from inadmissibility. Although the consequences of declaring a case devoid of purpose are similar to those of inadmissibility, ie the action or appeal is dismissed without the examination of its substance, these relate to different situations. Inadmissibility exclusively concerns circumstances which are present at the time of lodging the action or appeal, while the latter may become devoid of purpose by reason of circumstances that emerge after its lodging, in the course of the Court procedure. For instance, if the applicant has no interest to act at the time of lodging an action for annulment, the action is dismissed as inadmissible. Conversely, if he loses interest to act in the course of the proceedings, the action or appeal is admissible but becomes devoid of purpose (cf para 3.109 et seq).52 Similarly, if the requirements as to representation are not fulfilled at the time of lodging an action, it is rejected as inadmissible, while, if the applicant is initially represented but can no longer afford representation at a later stage of

5.349

42 CJ RoP, Arts 142 and 149, GC RoP, Art 131. 43 GC RoP, Art 130(2). 44 Losing interest to act is a matter of public policy and the Courts verify it ex officio. See, eg Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04 TV2/Danmark v Commission [EU:T:2008:457] para 62; Case C-519/07 P Commission v Koninklijke FrieslandCampina [EU:C:2009:556] para 63. 45 Case C-401/09 P Evropaïki Dynamiki v ECB [EU:C:2011:370] para 49. 46 Order of 24 April 2012 in Case T-517/09 Alstom v Commission (power transformers cartel) [EU:T:2012:195] paras 23–25; Joined Cases T-208/08 and T-209/08 Gosselin and Portilje v Commission [EU:T:2011:287] para 173; Case T-138/07 Schindler Holding and Others v Commission (elevators cartel) [EU:T:2011:362] paras 40–44. 47 Case T-269/03 Socratec v Commission [EU:T:2009:211] para 48; Order of 31 May 2006 in Case T-123/02 Carrs Paper v Commission [EU:T:2006:141] para 14. 48 Order of 10 December 2014 in Case T-388/10 Productos Derivados del Acero v Commission [EU:T:2014:1093] para 16. 49 Order of 11 October 2017 in Case C-204/17 P(R) Hungary v Commission (tax on advertisement) [EU:C:2017:751] paras 18–20. 50 GC RoP, Art 131(2). 51 CJ RoP, Art 183. 52 Order of 17 October 2005 in Case T-28/02 First Data and Others v Commission [EU:T:2005:357] paras 35–36.

666 Inadmissibility and No Need to Adjudicate the procedure, his action is admissible but becomes devoid of purpose (cf para 4.48). It must, however, be borne in mind that inadmissibility and no need to adjudicate are distinct concepts. Most grounds of inadmissibility have no counterpart in the case law on no need to adjudicate. For instance, the individual concern of a natural or legal person bringing an action for annulment is only assessed at the time of lodging the action. If the applicant is no longer individually concerned by reason of an event that occurred in the course of the Court procedure, his standing and the admissibility of the action remain unaffected and the action does not become devoid of purpose (cf para 3.159). 5.350

Costs. The EU Courts enjoy complete discretion in determining the allocation of costs where the case does not proceed to judgment.53 In general, however, the EU Courts will exercise their discretion in the light of all the circumstances of the case, including the responsibility of the parties for the situation that caused the action or appeal to become devoid of purpose (cf para 5.388).

53 Order of 23 September 1987 in Case C-43/83 De Naeyer v Commission [EU:C:1987:382]; Order of 12 March 1992 in Case T-73/91 Gavilan v Parliament [EU:T:1992:42].

5.8. Discontinuance, Withdrawal, Settlement [written by Viktor Bottka1] Discontinuance. Just as the decision to initiate the case rests with the applicant or appellant, so does the choice to discontinue it.2 Discontinuance may be the result of an out-of-court settlement between the parties3 or between the applicant and a third party.4 It is worth mentioning that amicable settlement (cf para 5.355) is not possible in actions for annulment and for failure to act.5 Therefore, if the parties settle in such cases, the applicant may only give effect to the agreement by discontinuing the action. Discontinuance may also be the unilateral strategic choice of the applicant6 to avert a negative judgment or a declaration of the case being devoid of purpose. It may thus occur after the oral hearing where the mood of the Court is perceived through the questions to the parties, or it can also be a consequence of another judgment dismissing the same pleas.7

5.351

Procedure. If the applicant informs the relevant Court in writing or at the hearing that he wishes to discontinue the proceedings, the President8 will order the case to be removed from the register.9 The EU Courts cannot reject a request for discontinuance, even if the judgment may be close to being issued and may contain important findings for the case law.10 The President, after hearing the other party, also gives a decision as to costs. A specific rule for the cross-appeal is that it becomes automatically devoid of purpose in case of the discontinuance or manifest inadmissibility of the appeal.11

5.352

Withdrawal. Withdrawal may take place where several applicants or appellants bring a common action or appeal and only some of them withdraw from the case, meaning that it is not discontinued. An intervener may also withdraw from the case without causing its removal from the register.

5.353

Costs in the event of discontinuance or withdrawal. The rules on costs in the event of discontinuance or withdrawal are the same before both EU Courts. A party who discontinues the proceedings or withdraws from them shall be ordered to pay the costs if they have been applied

5.354

1 Member of the Legal Service, European Commission. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the European Commission. 2 CJ RoP, Art 148; GC RoP, Art 125. 3 See, eg Order of 2 March 2016 in Case T-98/14 Société générale v Commission [EU:T:2016:131]; Order of 5 August 2015 in Case T-137/15 Parker Hannifin Manufacturing and Parker-Hannifin v Commission (marine hose cartel) [EU:T:2015:579]. 4 Case T-620/17 Teollisuuden Voima v Commission was discontinued following a settlement between the beneficiary of the aid (Areva Group) and its contracting party the applicant, which challenged the State aid decision authorising the aid (Order of 19 June 2018 in Case T-620/17 Teollisuuden Voima v Commission [EU:T:2018:375]). 5 CJ RoP, Art 147; GC RoP, Art 124. 6 Order of 19 October 2011 in Case T-447/07 Scovill Fasteners v Commission (fasteners cartel) [EU:T:2011:606]. 7 For example, Case T-116/07 France v Commission (alumina) was discontinued (and removed from the register by Order of 22 February 2018 in Case T-116/07 France v Commission (alumina) [EU:T:2018:92]) after the issuing of a decision in a parallel case (Order of 7 December 2017 in Case C-323/16 P Eurallumina v Commission [EU:C:2017:952]). 8 cf paras 1.36 and 1.61. 9 CJ RoP, Art 148; GC RoP, Art 125. 10 For instance, in T-273/04 Brandt industries v Commission, the applicant discontinued the proceedings two days before the scheduled delivery of the judgment in open court. The General Court removed the case from the register by Order of 23 May 2008 in Case T-273/04 Brandt industries v Commission [EU:T:2008:166]. 11 CJ RoP, Art 183.

668 Discontinuance, Withdrawal, Settlement for in the other party’s observations on the discontinuance. However, at the request of the party who discontinues or withdraws, the costs shall be borne by the other party if this appears justified by the conduct of that party. Where the parties have come to an agreement on costs, the decision as to costs shall be in accordance with that agreement. If costs are not claimed, the parties shall bear their own costs12 (cf paras 5.389–5.391). 5.355

Amicable settlement. If, before the Court hearing the case has given its decision, the parties reach a settlement of their dispute and inform the Court of the abandonment of their claims, the President13 orders the case to be removed from the register and gives a decision as to costs, having regard to any proposals made by the parties on the matter.14 This procedure is not allowed in actions for annulment or in actions for failure to act;15 in such cases, the applicant must discontinue the proceedings to give effect to an agreement. Amicable settlement is rarely used outside the field of staff cases, although it may be convenient in proceedings where several parties have lodged (separate) appeals, as it allows several or all parties to abandon their claims simultaneously. However, even there a simple withdrawal letter from each party would achieve the same result.

5.356

Settlement in staff cases. The only type of procedure where the General Court takes an active role in reaching a settlement16 between the parties is staff cases brought pursuant to Article 270 TFEU. In those cases, following the rules17 introduced in 2016 upon the transfer of the power to hear staff cases at first instance (cf para 1.17), the General Court may, at all stages of the procedure, examine the possibilities of an amicable settlement of all or part of the dispute between the main parties. Accordingly, the Judge-Rapporteur may propose one or more solutions capable of putting an end to the dispute, adopt appropriate measures with a view to facilitating its amicable settlement and implement the measures which she or he has adopted to that end. Material produced in the context of the amicable settlement procedure is entered in a specific register separate from the case file and with more limited access rules (interveners have no access, and the parts about the separate negotiations between the Judge-Rapporteur and a party are not accessible to the other party).

12 CJ RoP, Art 141; GC RoP, Art 136. 13 cf 1.36 and 1.61. 14 CJ RoP, Art 147(1); GC RoP, Art 124(1). 15 CJ RoP, Art 147(2); GC RoP, Art 124(2). 16 In other types of actions, the General Court would at most ask the party whether it maintains its plea in the light of a recent judgment or another new circumstance. That could also lead to a settlement in theory, but is more likely to cause discontinuance. 17 GC RoP, Arts 125a–125d.

5.9. Judgment by Default [written by Viktor Bottka1] General. The judgment by default is a possible sanction against defendants in direct actions2 who fail to meet the procedural deadline for submitting their defence (cf paras 4.207–4.208). If a defendant on whom an application initiating proceedings has been duly served fails to respond to the application in the proper form and within the time limit prescribed, the applicant may apply to the relevant Court for judgment by default.3 Before giving such a judgment, the Court of Justice considers whether the application initiating proceedings is admissible and appears well founded.4 The General Court may only dismiss the action if it is clear that it has no jurisdiction to hear and determine the action, or that the action is manifestly inadmissible or manifestly lacking any foundation in law.5 If follows that, even if no defence is submitted, it is not certain that the applicant will succeed in his action. The judgment by default is enforceable. Before both EU Courts, however, the defendant may lodge an objection (application to set aside) against the judgment by default within one month of it being notified, and the relevant Court may grant a stay of execution until it decides on any application to set the judgment aside.6 With respect to the General Court, there is an additional rule that a defendant in default shall not intervene in the default procedure and, with the exception of the decision closing the proceedings, no procedural document shall be served on him.7

1 Member of the Legal Service, European Commission. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the European Commission. 2 The default procedure may also be applied in intellectual property cases (GC RoP, Art 191). However, its application presupposes not only that the defendant office fails to respond to the action, but also that the other party to the proceedings before the Board of Appeal prefers not to lodge a response (GC RoP, Art 173(6); cf para 3.539). The chances of the default procedure’s application in this type of cases are thus extremely limited. 3 Statute, Art 41; CJ RoP, Art 152; GC RoP, Art 123. 4 CJ RoP, Art 152(2). 5 GC RoP, Art 123(3). 6 CJ RoP, Art 152(4); GC RoP, Art 123(4). 7 GC RoP, Art 123(2).

5.357

670 Judgment by Default 5.358

Practice. Applicants often succeed in their claim in such cases.8 An interesting situation is presented when the applicant initiates two actions with the same application (for example, a joint application for annulment and for damages). The Commission as defendant is entitled to submit a single defence on the two actions or a single plea of inadmissibility.9 However, if a plea of inadmissibility is submitted on one of the actions and a defence is submitted on the other, it may be advisable to send them in two separate documents.10

8 For example, in the German banks cartel litigation, an unfortunate mistake of sending the fax with the Commission’s submission upside down and thus missing the deadline for the defence led to the judgments by default in Cases T-44/02 Dresdner Bank v Commission, T-54/02 Vereins- und Westbank v Commission, T-56/02 Bayerische Hypo- und Vereinsbank v Commission, T-60/02 Deutsche Verkehrsbank v Commission and T-61/02 Commerzbank v Commission. The application to set aside these judgments by default was equally dismissed in Joined Cases T-44/02 OP, T-54/02 OP, T-56/02 OP, T-60/02 OP and T-61/02 OP Dresdner Bank and Others v Commission [EU:T:2006:271]. 9 In Case T-279/11 T & L Sugars and Sidul Açúcares v Commission [EU:T:2013:299] paras 26–31, the application for a judgment by default was rejected because the Commission could lawfully submit a single plea of inadmissibility covering the entire application containing the two actions. Even if the Commission did not put forward any specific arguments as regards the inadmissibility of the claims for damages, the General Court held that a defence to the application was lodged in the proper form. 10 Normally, under GC RoP, Art 130(1), the plea of inadmissibility has to be submitted in a separate document from the defence. Logically, within the same action, the plea of inadmissibility on an action for annulment has to be separate from the defence on that same action. However, it is not clear whether it needs to be submitted in a separate document also from the defence on the other action (for damages). In Case T-669/14 Trioplast Industrier v Commission (plastic bags cartel) [EU:T:2016:285] para 42, the applicant did not object to the fact that the Commission responded with a single document to the single application containing an action for annulment and an action for damages. That single document contained a plea of inadmissibility on the action for annulment and a defence on the action for damages. The Commission’s joint submission was accepted as admissible and both actions of Trioplast were rejected in a single judgment.

5.10. Costs and Legal Aid [written by Martin Farley1]

5.10.1. Overview General. Article 38 of the Statute requires that the EU Courts adjudicate upon costs. This requirement has been transposed into both the Rules of Procedure of the General Court (GC RoP) and the Rules of Procedure of the Court of Justice (CJ RoP), both of which provide that a decision on costs shall be given in the judgment or order closing proceedings.2 The EU Courts, however, enjoy considerable discretion regarding: (i) how to allocate costs between the parties; and, in the event of a dispute between the parties, (ii) the amount of costs that are recoverable. The broad discretion enjoyed by the EU Courts often makes it difficult to establish bright-line tests and general rules applicable to costs orders. Nevertheless, the following sections seek to identify the types of factors and circumstances that the EU Courts have previously taken into consideration when deciding how to exercise their discretion.

5.359

Structure of this chapter. While it is true that there is no court fee charged by the EU Courts, the latter may order the parties to reimburse expenses that the Courts incurred in some specific situations (cf Section 5.10.2. Costs of Court Proceedings). This is notwithstanding the claims for the recovery of costs incurred by the parties. The costs claim must be made in the submissions of the parties, and the EU Courts decide on the allocation of costs in the final judgment or order that closes proceedings3 in direct actions,4 intellectual property cases5 (cf Section 5.10.3. A llocation of Costs in Direct Actions and in Intellectual Property Cases) and appeals (cf Section 5.10.4. Allocation of Costs in Appeals). Once the costs are allocated, the parties are given some time to find an agreement on the quantification of recoverable costs. If they do not succeed, and there is a genuine dispute as to the recovery and/or the amount of the costs, either party may lodge a separate application for taxation of costs before the relevant EU Court (cf Section 5.10.5. Disputes Concerning the Costs to Be Recovered), upon which that Court will adopt an order quantifying the recoverable costs, by taking account of the applicable statutory provisions and case law (cf Section 5.10.6. Recoverable Costs). In preliminary rulings, it is the national judge who made the reference that decides on the costs related to the preliminary ruling procedure (cf Section 5.10.7. Costs in Preliminary Rulings). Finally, in direct actions, intellectual property cases, appeals and preliminary rulings, a party may apply for legal aid, that is, for a payment made to the party by the Courts that allows him to be represented by a lawyer (cf Section 5.10.8. Legal Aid).

5.360

1 Member of the Legal Service, European Commission. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the European Commission. 2 GC RoP, Art 133 (direct actions); GC RoP, Art 190 (intellectual property cases); CJ RoP, Art 137 (direct actions); CJ RoP, Art 184 (appeals). NB: the Court of Justice does not adjudicate on costs in preliminary ruling proceedings, as it is the task of the national court that made the preliminary reference (CJ RoP, Art 102). Furthermore, no decision on costs is made in Opinions on draft international agreements (CJ RoP, Arts 196–200). 3 Save some exceptions where a ruling on costs is made in an order adopted during the course of the proceedings (cf paras 5.393–5.399). 4 cf para 4.100. 5 cf Chapter 3.5. Intellectual Property Cases.

672 Costs and Legal Aid

5.10.2. Cost of Court Proceedings 5.361

No court fees but avoidable court expenses must be reimbursed. As a general principle, proceedings before the General Court and the Court of Justice are free of charge. Parties are not required to pay a court fee when they bring a case. However, the Rules of Procedure provide that a party may be ordered to refund costs incurred by the EU Courts in certain specific circumstances,6 essentially where the party’s conduct required extra resources from the EU Courts without any legitimate goal being pursued (cf paras 5.362–5.365).

5.362

Avoidable costs. First, if a party has caused the EU Courts to incur avoidable costs, the relevant Court may order the party to refund those costs.7 One such example arose in H&R ChemPharm,8 in which the General Court ordered the applicant to pay €10,000 to the cashier of the General Court on account of the applicant having provided inexact and imprecise answers to the General Court’s written questions, which rendered the General Court’s examination of the case significantly more complicated, thereby causing the latter to incur avoidable costs. In another case, the General Court imposed the payment of €1500 on the European Commission because the latter, when ordered by the General Court to provide the confidential version of a document, only submitted a non-confidential version, which caused the General Court to issue a repeated order and thus to incur avoidable costs.9

5.363

Manifest abuse of process. Secondly, it is worth noting that, in contrast to the CJ RoP, a provision introduced by the GC RoP of 201510 foresees that parties may be ordered to refund the avoidable costs incurred by the General Court ‘in particular where the action is manifestly an abuse of process’. A lump-sum sanction of €2000 had already been imposed on an applicant on account of abuse of process under the old GC RoP of 1991 (cf para 3.485).11 To the extent that guidance can be drawn from the way in which the equivalent provision12 was used by the Civil Service Tribunal, the following situations may be held to constitute an abuse of process: renewing a case that has already been deemed inadmissible;13 bringing a case that lacks any legal foundation;14 bringing a case that could easily be resolved through non-contentious means;15 and bringing an excessive number of unfounded cases which are continually raised before the EU Courts despite the Courts’ continuous rejection of said cases.16

5.364

Excessive copying or translation. The third situation in which a party may be required to reimburse expenses incurred by the EU Courts is where copying or translation work, which the Registrar considers to be excessive, has been carried out at the request of a party.17 In such a case, the party that has requested that the work be carried out can be ordered to reimburse the EU Courts at the rate set by the Registry’s scale of charges.

6 CJ

RoP, Art 143; GC RoP, Art 139. RoP, Art 143(a); GC RoP, Art 139(a). 8 Case T-551/08 H&R ChemPharm GmbH v Commission [EU:T:2014:1081] paras 262 and 352. 9 Case T-406/10 Emesa-Trefilería and Industrias Galycas v Commission [EU:T:2015:499] paras 190–194. 10 GC RoP, Art 139(a). 11 Case T-698/13 P Marcuccio v Commission [EU:T:2014:819]. 12 In the Rules of Procedure of the Civil Service Tribunal (no longer in force). 13 Case F-71/09 Caminiti v Commission [EU:F:2011:53] paras 67–70. 14 Case F-102/08 Marcuccio v Commission [EU:F:2010:21] paras 44–45. 15 Case F-14/10 Marcuccio v Commission [EU:F:2011:99] paras 85–86. 16 Case F-3/11 Marcuccio v Commission [EU:F:2012:25] paras 48–55. 17 CJ RoP, Art 143(b); GC RoP, Art 139(b). 7 CJ

Allocation of Costs in Direct Actions and in Intellectual Property Cases 673 Repeated failure to comply with formal requirements. Fourthly, Article 139(c) of the GC RoP provides that,

5.365

in the event of any repeated failure to comply with the requirements of [the GC RoP] or of [the Practice Rules of the General Court (GC PR)], requiring regularisation to be sought, the costs involved in the requisite processing thereof by the General Court shall, at the request of the Registrar, be paid for by the party concerned on the Registry’s scale of charges.

As such, not only could failure to respect the requirements of the GC RoP and the GC PR result in a need for documents to be regularised (cf paras 4.50, 4.110, 4.135, 4.137 and 4.198), but repeated infringements could also result in a costs order being made against the party concerned.

5.10.3. Allocation of Costs in Direct Actions and in Intellectual Property Cases Overview. The recovery of costs incurred by the parties in proceedings before the EU Courts takes place in two distinct stages. First, a decision as to which party or parties must bear the costs shall be given, as a rule, in the operative part of the judgment or order which closes proceedings.18 That order in the operative part, however, only allocates the burden of costs between the parties. It does not quantify the actual amount of costs that any of the parties is entitled to recover from the other party. Secondly, the quantification (or ‘taxation’) of costs takes place by way of a separate procedure that will only occur in the event of a dispute between the parties as to the amount of costs recoverable. The present section examines the first stage, that is, the rules governing the allocation of the burden of costs between the parties, in the context of direct actions19 and in actions brought in intellectual property cases.20 The second stage related to the quantification of costs is addressed in detail in Section 5.10.5. Disputes Concerning the Costs to be Recovered and Section 5.10.6. Recoverable Costs. Furthermore, the present section is subdivided to examine situations where the costs are allocated in final judgments or orders closing the case on the merits (cf Subsection 5.10.3.1), and in other orders which close the case without any ruling on the merits or which are issued during the proceedings (cf Subsection 5.10.3.2).

5.366

5.10.3.1. Allocation of Costs in Final Judgments or Orders Deciding the Merits of the Case (i) General Rule: The Unsuccessful Party Pays General. Where the EU Courts decide the merits of a direct action or an action brought in an intellectual property case, they deliver a final judgment closing the case21 (cf paras 4.362–4.363). Exceptionally, the General Court may also decide on the merits in a reasoned order closing the case, not in a judgment (cf paras 4.364–4.365). The main rules regarding the allocation of costs are set out in Article 138 of the CJ RoP and Article 134 of the GC RoP, the texts of which are

18 CJ RoP, Art 137; GC RoP, Art 133. Save some exceptions where a ruling on costs is made in an order adopted during the course of the proceedings (cf paras 5.393–5.399). 19 cf para 4.100. 20 cf Chapter 3.5. Intellectual Property Cases; Chapter 4.3. Procedure in Intellectual Property Cases. 21 Except for actions for damages, where certain issues going to the substance of the case may be decided in an interlocutory judgment (cf para 3.334). See, eg Case C-152/88 Sofrimport v Commission [EU:C:1990:259].

5.367

674 Costs and Legal Aid substantively identical. The general principle is that costs follow the event and the unsuccessful party shall be ordered to pay his own costs and the costs of the successful party, provided that they have been applied for in the successful party’s pleadings.22 5.368

Need to apply for costs. In the event that the successful party has not applied for costs, each party will be ordered to bear his own costs.23 The usual practice, therefore, is for parties to apply for costs in the first set of written pleadings that are lodged with the Court (ie the application in the case of the applicant, and the defence24 in the case of the defendant).25 Historically, however, the EU Courts have granted requests for costs that were made later, eg at the oral hearing, on the basis that ‘the fact that the successful party did not ask for costs until the hearing does not debar the Court from awarding them’.26

5.369

Sharing costs between multiple unsuccessful parties. Where there is more than one unsuccessful party, the EU Courts shall decide how the costs are to be shared.27 In this regard, the Courts have complete discretion over how to determine the share of costs between the parties and have, in the past, ordered the unsuccessful parties to bear the costs jointly and severally28 or equally,29 or have applied a specific formula.30

5.370

Partial success. Not every case can be described in binary win/loss terms, with a clear ‘unsuccessful’ party that can justifiably be ordered to bear the costs of the action. Less clear situations arise, for example, where a decision is partially annulled, or where the contested decision imposed a fine and the level of that fine is reduced, without the fine being completely annulled. To address such situations, Article 134(3) of the GC RoP and Article 138(3) of the CJ RoP provide, as regards first instance proceedings, that where ‘each party succeeds on some and fails on other heads [of claim], the parties shall bear their own costs’. The same provisions, however, also bestow a large degree of discretion on the EU Courts, as they go on to provide that ‘if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs,

22 CJ RoP, Art 138(1); GC RoP, Art 134(1). 23 Case C-139/79 Maizena GmbH v Council [EU:C:1980:250]; Case T-7/92 Asia Motor France v Commission [EU:T:1993:52]. 24 Response in intellectual property cases (cf para 4.386). 25 Following Case C-255/90 P Burban v Parliament [EU:C:1992:153] para 26, it is not sufficient for a party to request that the Court makes an order for costs ‘in accordance with the Rules of Procedure’. Rather, the request should be that the other party be ordered to pay the costs of the action. 26 See Case T-64/89 Automec v Commission [EU:T:1990:42] para 79, in reliance on the judgment in Case C-113/77 NTN Tokyo Bearing v Council [EU:C:1979:91], in which the applicant’s counsel had omitted to request costs in the written pleadings, but did so during the oral hearing. The Court of Justice made a costs order as if the request had been made as part of the written pleadings. See also Case C-155/79 AM&S Europe v Commission [EU:C:1982:157], in which an intervener successfully claimed its costs at the hearing but not in the written pleadings. In Joined Cases C-92/87 and C-93/87 Commission v France and the United Kingdom (monetary compensatory amounts) [EU:C:1989:77], the Court of Justice refused to grant a request for costs that was contained in a document that was lodged at the oral hearing but which did not formally constitute part of the pleadings. 27 CJ RoP, Art 138(2); GC RoP, Art 134(2). 28 Case C-222/83 Commune de Differdange v Commission [EU:C:1984:266] para 14; Case C-264/82 Timex Corporation v Council v Commission [EU:C:1985:119]; Case C-100/86 Cauët and Joliot v Commission [EU:C:1987:357] para 24. 29 See, eg Joined Cases C-41/73, C-43/73 and C-44/73 Générale Sucrière v Commission [EU:C:1973:151], in which the Court of Justice ordered each of the eight unsuccessful parties to bear their own costs and one-eighth of the Commission’s costs. 30 See Joined Cases C-32/78 and C-36/78 to C-82/78 BMW Belgium and Others v Commission [EU:C:1979:191], in which the unsuccessful applicants had sought the annulment of a Commission decision imposing fines of varying amounts on them. The Court of Justice ordered that each applicant pay a part of the Commission’s costs corresponding to the percentage of the fine imposed on it as compared to the total amount of the fines imposed on all of the addressees of the contested decision.

Allocation of Costs in Direct Actions and in Intellectual Property Cases 675 pay a proportion of the costs of the other party’. Since the sharing of costs is not a m athematical exercise, the EU Courts tend to express the division of costs as a fraction or percentage. This apportionment is at the EU Courts’ discretion, but is often either done on the basis of the heads of claim or pleas in law won or lost,31 or the overall degree of success.32 (ii) Exceptions General. Notwithstanding the general principle that the unsuccessful party is ordered to bear the costs of proceedings, Article 135 of the GC RoP and Article 139 of the CJ RoP provide for a number of circumstances in which the EU Courts can deviate from that principle.

5.371

Equitable allocation of costs. Article 135(1) of the GC RoP provides that:

5.372

If equity so requires, the General Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own, or even that he is not to be ordered to pay any.

This provision replaces the reference in the previous version of the GC RoP33 to the General Court being able to depart from the general costs rules in ‘exceptional circumstances’34 and brings the GC RoP closer into line with Article 138(3) CJ RoP, which permits the Court of Justice to order one party to pay a proportion of the costs of the other party ‘if such an order appears justified in the circumstances of the case’. Rather than needing to classify a situation as ‘exceptional’ in order to have recourse to Article 135(1) GC RoP, the General Court can be guided by ‘ideas of fairness and proportionality’35 in order to allocate costs in a manner that it considers to be most appropriate. Four broad categories appear to emerge in which the EU Courts have considered recourse to these provisions to be justified (cf paras 5.373–5.376). Impossibility to determine costs. The first category relates to cases where the Court finds it impossible to determine the costs attributable to the case. For example, in Krupp Stahl,36 the applicant brought two actions challenging a Commission measure regarding steel production quotas. The Court of Justice joined the cases for the oral hearing and treated the parties as joined for the written procedure. The applicant won the first case and lost the second. As the Court found it impossible to attribute costs as between the two cases, it ordered each party to bear its own costs.

5.373

Questions of general interest. The second category concerns cases that give rise to questions of general interest that warrant being litigated before the EU Courts,37 or cases that raise questions

5.374

31 See, eg Case T-83/10 Riva Fire v Commission (reinforcing bars cartel) [EU:T:2014:1034] para 325, in which the applicant was generally unsuccessful on its main annulment claim, but it obtained a reduction of the fine imposed on it in the contested decision. Since the applicant was thus (partially) successful on its claim regarding the reduction of the fine, it was only required to bear three-quarters of the Commission’s costs, in addition to its own. 32 Case T-558/08 Eni v Commission (candle wax cartel) [EU:T:2014:1080] paras 315–316. See also Case T-90/11 Ordre national des pharmaciens and Others v Commission [EU:T:2014:1049] para 395, where, although the applicants succeeded in having the level of the fine imposed on them reduced, such reduction was only minimal (see para 382). Consequently, the Commission was ordered to bear its own costs and one-tenth of the applicants’ costs, the applicants being left to bear the remaining nine-tenths. 33 The old GC RoP of 1991. 34 See explanatory notes to the draft GC RoP, p. 126. 35 M Bierry and A Dal Ferro, ‘The practice followed by the Court of Justice with regard to costs’ (1987) Common Market Law Review 528–529. 36 Joined Cases C-275/80 and C-24/81 Krupp Stahl v Commission [EU:C:1981:247]. 37 Case C-153/73 Holz & Willemsen GmbH v Council and Commission [EU:C:1974:70]; Case C-175/73 Union Syndicale v Council [EU:C:1974:95]; Case C-26/75 General Motors Continental v Commission [EU:C:1975:150]; Case C-66/76 Confédération française démocratique du travail v Council [EU:C:1977:31].

676 Costs and Legal Aid of great complexity.38 In such instances, the EU Courts have also been minded to order that each party should bear his own costs. 5.375

Where the opposing party encouraged the bringing of proceedings or made the bringing of such proceedings inevitable. The third category covers situations where the conduct of the prospective defendant was such that it has encouraged the applicant to commence proceedings or made the bringing of the proceedings inevitable. In such situations, the unsuccessful applicant might not be required to pay the full costs of the proceedings. For example, in Automec,39 the General Court considered that the Commission had contributed to the emergence of the dispute as a result of ambiguity in one of the letters that it sent to the applicant and which formed part of the dispute in question. The Court, therefore, ordered the Commission to bear its own costs and half the applicant’s costs, notwithstanding the fact that the applicant was ultimately unsuccessful in its action.40

5.376

Parties’ conduct before the Court. As to the fourth category, exceptional or equitable circumstances can also arise as a result of the parties’ conduct in the proceedings before the Court. For example, in Atlantic Container Line,41 the General Court ordered the successful applicants to bear their own costs on the basis that their case, which raised an excessively large number of legal grounds in four applications, comprising over 2000 pages and approximately 100 files of annexes, amounted to a misuse of the judicial process.42 Another example arose in Pilkington,43 where, despite the applicants being unsuccessful in all of their heads of claim, the General Court ordered the Commission to bear 10 per cent of the applicants’ costs. The General Court grounded its order on the fact that it was only in the course of proceedings, several years after the adoption of the contested decision and after the closure of the written proceedings, that the Commission corrected two errors made in calculating the fine imposed on the applicants. (iii) Unreasonable or Vexatious Litigation

5.377

Article 135(2) of the GC RoP. Article 135(2) of the GC RoP provides that the General Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he has made the opposite party incur costs which the General Court holds to be unreasonable or vexatious.

Article 139 of the CJ RoP contains a substantively equivalent provision.44 5.378

Relationship with other provisions. There appears to be an overlap between Article 135(1) and (2) of the GC RoP, particularly where the ‘exceptional’ or ‘equitable’ circumstances

38 Joined Cases C-2/60 and C-3/60 Niederrheinische Bergwerks v High Authority [EU:C:1961:15]; Opinion of AG Reischl in Case C-74/81 Rudolf Flender v Commission [EU:C:1981:279]. 39 Case T-64/89 Automec v Commission [EU:T:1990:42]. 40 See also Case C-11/63 Lepape v High Authority [EU:C:1964:14]. 41 Joined Cases T-191/98 and T-212 to T-214/98 Atlantic Container Line and Others v Commission [EU:T:2003:245]. 42 The case dates from a period before the introduction of a maximum number of pages for written pleadings. 43 Case T-72/09 Pilkington Group Ltd and Others v Commission [EU:T:2014:1094] paras 446–449. 44 One noteworthy difference between GC RoP, Art 135(2) and CJ RoP, Art 139 is the absence from the CJ RoP of the explicit reference to conduct ‘including before the proceedings were brought’. This reference, however, appears simply to codify the approach taken by the EU Courts in their case law, and ought not to be seen as limiting the appraisal by the Court of Justice to a party’s conduct during the proceedings. To this effect, see Case C-140/86 Strack v Commission [EU:C:1987:427].

Allocation of Costs in Direct Actions and in Intellectual Property Cases 677 relied on by the General Court in Article 135(1) of the GC RoP are attributable to one of the parties.45 That said, there are certain distinct differences between said paragraphs (1) and (2). Article 135(1) of the GC RoP covers cases where the General Court regarded it as equitable to apportion the costs instead of making the usual order.46 Article 135(2) of the GC RoP, however, applies to sanctioning a party: (i) where the costs have been unnecessarily incurred; or (ii) where there has been an abuse of process or other behaviour which must be discouraged. Furthermore, for Article 135(2) of the GC RoP to apply, it appears necessary that the conduct in question must have caused additional costs to have been incurred.47 Such a requirement is not present under Article 135(1) of the GC RoP. Failure to observe good administrative practice. With regard to the type of conduct that could fall within the ambit of Article 135(2) of the GC RoP, the principal situations in which the EU Courts have found conduct to have been unreasonable arise where a defendant EU institution or body has failed to observe good administrative practice. Such a failure may be present, for example, where the conduct of the institution or body caused the applicant to lodge two applications when one should have been sufficient;48 an issue in the dispute has been caused by ambiguity in the contested measure;49 insufficient reasoning in the contested decision encouraged the lodging of the application;50 the contested measure was drafted in a misleading way;51 the defendant left the applicant in a state of uncertainty for a long period52 or omitted properly to notify the applicant of an important decision;53 or the defendant has made ‘numerous mistakes’ in a public procurement matter.54

5.379

Misuse of the judicial system. Instances in which the EU Courts have classified a party’s actions as vexations generally arise where the case constitutes a ‘misuse’55 of the judicial system or if an action appears to be ‘particularly ill-judged’ and the ‘very facts giving rise to [the] dispute show the applicant’s conduct to have been vexatious’.56 Furthermore, if a party continues in its action despite having lost all interest to do so, the EU Courts will also generally order the successful party to bear the costs attributable to the unwarranted continuance of proceedings.57 The mere fact that a case has little prospect of success will not, however, ordinarily be sufficient on its own

5.380

45 J Usher, European Court Practice (Sweet & Maxwell, London, 1983) 335; R Plender, European Courts Procedure (Sweet & Maxwell, London, 2010) 483. 46 The correctness of this position appears to have been confirmed by the latest amendments to the GC RoP, which now refers to the General Court being able to deviate from the standard position where it is ‘equitable’ to do so, rather than in ‘exceptional circumstances’, as per the previous version of the GC RoP. 47 Case C-31/71 Gigante v Commission [EU:C:1976:132] para 8. 48 Joined Cases C-15/79 and C-29/59 Knutange v High Authority [EU:C:1960:4]; Case C-119/77 Nippon Seiko v Council and Commission [EU:C:1979:93]. 49 Joined Cases C-16/59 to C-18/59 Geitling and Others v High Authority [EU:C:1960:5]; Case T-471/93 Tiercé Ladbroke v Commission [EU:T:1995:167]. 50 Case T-156/89 Mordt v Court of Justice [EU:T:1991:33]; Case T-158/94 Brunagel v Parliament [EU:T:1996:122]; Case T-60/03 Regione Siciliana v Parliament [EU:T:2005:360]. 51 Case T-7/94 Adriaenssens and Others v Commission [EU:T:1997:7]. 52 Case T-81/95 Interhotel v Commission [EU:T:1997:117]. 53 Case T-288/04 Van Neyghem v Committee of the Regions [EU:T:2007:1]. 54 Case T-40/01 Scan Office Design v Commission [EU:T:2002:288]. 55 Case T-174/95 Svenska Journalistforbundet v Council [EU:T:1998:127] para 140. See also Case C-243/78 Simmenthal v Commission [EU:C:1980:65] para 11, where persisting in an action in the manifest absence of any real interest or useful purpose in continuing with it has been described as an abuse of process; Joined Cases C-122/79 and C-123/79 Schiavo v Council [EU:C:1981:47]. 56 Case T-35/00 Goldstein v Commission [EU:T:2000:186] para 14. 57 Joined Cases C-35/62 and C-16/63 Leroy v High Authority [EU:C:1963:50].

678 Costs and Legal Aid to render an application unreasonable or vexatious if the applicant had an interest in bringing it,58 or if the case concerned a factually complicated issue.59 5.381

Further considerations in determining whether proceedings are unreasonable or vexatious. In his Opinion in Hecq, Advocate General Mischo provided several examples of conduct that could potentially be considered as unreasonable or vexatious. In the case at hand, the Advocate General considered that the applicant’s conduct could not be considered as either unreasonable or vexatious, because the action was not manifestly inadmissible or unfounded; the applicant had not made excessive charges; the action was not manifestly intended to cause delays; the applicant was not otherwise able to have the contested measure reviewed; and it had not been determined that the applicant was responsible for the events giving rise to the contested measure.60 (iv) Interventions

5.382

General. Article 138 of the GC RoP and Article 140 of the CJ RoP, which are substantively the same, regulate the recovery of costs for interveners. Both sets of procedural rules draw a distinction between different categories of interveners.

5.383

Member States, EU institutions or bodies, EFTA. The first category of interveners covers EU Member States, EU institutions or bodies, EEA EFTA States, and the EFTA Surveillance Authority61 that have intervened in the proceedings.62 Interveners in this category will also always be required to bear their own costs if they have intervened in the proceedings, regardless of whether or not they intervene in support of the successful party.63 In addition, Member States and EU institutions (and, possibly, also bodies) that intervene in support of an unsuccessful party can be ordered to bear jointly the successful party’s costs resulting from the intervention.64

5.384

Other interveners. The EU Courts are free to decide on costs as regards other interveners.65 Although not explicitly set out in the Rules of Procedure, if the party that the intervener is supporting is unsuccessful, the intervener will generally be ordered to bear his own costs and the costs of the successful party incurred due to the intervention (provided that the successful party has requested such costs from the intervener).66 Conversely, if the intervener has intervened in support of the successful party, the unsuccessful party will normally be ordered to bear the intervener’s costs, if recovery of such costs has been sought by the intervener,67 unless the arguments 58 Case C-135/87 Vlachou v Court of Auditors [EU:C:1988:290] para 32. 59 Case T-63/91 Benzler v Commission [EU:T:1992:88] paras 34–36. 60 AG Opinion in Case C-19/87 Hecq v Commission [EU:C:1988:128] para 55. 61 Under Statute, Art 40(3), EEA EFTA States and the EFTA Surveillance Authority have the right to intervene where one of the fields of application of the EEA Agreement is concerned. 62 CJ RoP, Art 140(1)–(2); GC RoP, Art 138(1)–(2). 63 Case C-56/93 Belgium v Commission (Dutch nitrate fertilizers) [EU:C:1996:64] para 93; Case C-156/93 Parliament v Commission (organic agricultural products) [EU:C:1995:238] para 36; Case T-585/93 Greenpeace International and Others v Commission [EU:T:1995:147] para 67; Case T-166/94 Koyo Seiko v Council [EU:T:1995:140] para 108; Case T-50/96 Primex and Others v Commission [EU:T:1998:223]; Case T-184/97 BP Chemicals v Commission [EU:T:2000:217] para 88. 64 Case T-46/97 SIC v Commission [EU:T:2000:123] para 112. 65 CJ RoP, Art 140(3) and GC RoP, Art 138(3) merely state that the Courts ‘may order an intervener … to bear his own costs’. 66 Joined Cases C-241/91 P and C-242/91 P RTE and ITP v Commission [EU:C:1995:98] para 105; Case C-360/92 P The Publishers Association v Commission [EU:C:1995:6] para 51; Case T-435/93 ASPEC and Others v Commission [EU:T:1995:79] para 129; Case C-149/95 P(R) Commission v Atlantic Container Line and Others [EU:C:1995:257] para 62; Joined Cases T-132/96 and T-143/96 Freistaat Sachsen and Others v Commission [EU:T:1999:326] para 310. 67 Case C-130/75 Prais v Council [EU:C:1976:142]; Case C-75/92 Gao Yao Hua Fa Industrial v Council [EU:C:1994:279] para 33; Case T-102/92 VIHO Europe v Commission [EU:T:1995:3] para 80; Case T-17/93 Matra Hachette v Commission

Allocation of Costs in Direct Actions and in Intellectual Property Cases 679 put forward by the latter were all rejected by the EU Court, in which case the intervener bears his own costs.68 If the intervener does not apply for the recovery of his costs, he will always be ordered to bear his own costs.69

5.10.3.2. Allocation of Costs in Orders Not Deciding the Merits of the Case Overview. Not every case before the EU Courts ends with a final judgment or order on the merits (cf para 5.367). Similarly, not every order has the effect of bringing proceedings to a close. Nevertheless, the parties will almost certainly have incurred costs during the course of proceedings, and a decision will need to be made as to which party must bear the burden of those costs. The following paragraphs address the procedural rules regarding the allocation of costs where the Courts close the case by order on grounds that (i) the action is inadmissible; (ii) there is no need to adjudicate; (iii) the proceedings are discontinued or a party withdrew from them; or (iv) the parties reached an amicable settlement. Furthermore, the present subsection also explains the specific rules on costs related to (v) interim measures and (vi) applications for leave to intervene.

5.385

(i) Inadmissibility of the Action Main rule: the unsuccessful applicant pays. There are a number of situations in which the action or appeal lodged with the EU Courts is dismissed as inadmissible without the examination of its substance (cf Section 5.7.1. Inadmissibility). Such a dismissal usually takes place in a reasoned order closing the case (cf paras 4.366 and 4.445). Under the general provisions of the Rules of Procedure,70 as a rule, the unsuccessful applicant is ordered to bear his own costs and also those of the other party.71 Actions which fail to comply with the essential admissibility requirements related to each type of action, as explained in the relevant chapters of this book,72 are dismissed as inadmissible. Such is the case, for instance, where an action for annulment is brought out of time,73 or is directed against an act which is not reviewable74 or against a party who cannot stand as a defendant.75 Direct actions, actions in intellectual property cases76 and appeals are also rejected as inadmissible where mandatory content requirements are not complied with77 or where the action or appeal, as a whole, does not fulfil the minimum

[EU:T:1994:89] para 175; Case T-575/93 Koelman v Commission [EU:T:1996:1] para 99; Case C-310/93 BPB Industries and British Gypsum v Commission [EU:C:1995:101] para 36; Case T-110/97 Kneissl Dachstein v Commission [EU:T:1999:244] para 137. 68 Case C-792/79 R Camera Care v Commission [EU:C:1980:18]. 69 Case T-3/90 Vereniging Prodifarma v Commission [EU:T:1991:2]; Case T-110/98 RJB Mining v Commission [EU:T:2000:199] para 53. 70 CJ RoP, Art 138(1); GC RoP, Art 134(1). 71 It is worth mentioning that inadmissibility is usually stated before granting leave to intervene, thus there is little chance that any intervener would incur expenses (cf para 5.295). 72 The main conditions for admissibility are indicated in the ‘Overview’ section in the relevant chapters in Part 3 (cf para 3.05 on actions for annulment, para 3.346 on actions for failure to act, para 3.399 on actions for damages, para 3.473 on staff cases, para 3.527 on intellectual property cases and para 3.589 on appeals). 73 Order of 17 May 2002 in Case C-406/01 Germany v Parliament and Council (ban on manufacturing cigarettes for export) [EU:C:2002:304]. 74 Order of 17 May 1989 in Case C-151/88 Italy v Commission (soya beans) [EU:C:1989:201]. 75 Order of 4 June 2013 in Case T-213/12 Elitaliana v Eulex Kosovo [EU:T:2013:292]; Order of 8 March 2017 in Case T-380/16 Popescu v Romania [EU:T:2017:159]. 76 See Chapter 3.5. Intellectual Property Cases. 77 cf paras 4.108–4.109, 4.378 and 4.413.

5.386

680 Costs and Legal Aid requirements related to clarity and precision.78 Inadmissibility is thus usually the consequence of errors made by the applicant, which justify that he is ordered to bear the costs. Nonetheless, the Courts may also order the defendant to bear the costs in whole or in part where one of the exceptional situations is present, concerning, in particular, the defendant’s conduct having contributed to inducing the applicant to lodge the action or to make the error that caused its inadmissibility79 (cf paras 5.375 and 5.379). Furthermore, where an action for annulment is dismissed as inadmissible because it is directed against a non-existent act (cf paras 3.66–3.69), vitiated by such fundamental defects that even go beyond those justifying annulment, the defendant will be ordered to bear the costs.80 (ii) No Need to Adjudicate 5.387

General. Where an action or appeal before either of the EU Courts has not been withdrawn or discontinued but nonetheless becomes devoid of purpose (cf Section 5.7.2. No Need to Adjudicate), the Court in question may decide to rule by reasoned order that there is no longer any need to adjudicate on the case (cf para 5.347). In such a situation, the costs shall be at the discretion of the relevant Court.81 Such situations arise in cases where the parties no longer require a judgment from the Court but it has been left to the latter to terminate the proceedings because neither party withdraws or discontinues them.82 Examples also include scenarios where the parties have reached an amicable settlement on all aspects of the case except costs, and neither party wants to discontinue or withdraw in case it has an effect on its entitlement to costs;83 or where, after the lodging of an action for failure to act, the failure by the EU institution has been remedied.84

5.388

Discretion of the Court. The EU Courts enjoy complete discretion in determining the a llocation of costs in such cases that do not proceed to judgment.85 In general, however, the EU Courts will exercise their discretion in the light of all the circumstances of the case,86 including, where

78 cf paras 4.138 et seq, 4.382 and 4.418. See Order of 28 April 1993 in Case T-85/92 De Hoe v Commission [EU:T:1993:39]. NB: in this case, the parties were ordered to bear their own costs because of a provision in the old GC RoP of 1991 that foresaw that, in staff cases, the parties bear their own costs. This provision is no longer present in the GC RoP of 2015, which means that the general principle under which the unsuccessful party pays the costs also applies in staff cases. 79 Order of 13 November 2012 in Case T-278/11 ClientEarth and Others v Commission [EU:T:2012:593] paras 48–51. 80 Joined Cases T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, T-102/89 and T-104/89 BASF and Others v Commission [EU:T:1992:26] para 103. 81 CJ RoP, Arts 142 and 149; GC RoP, Art 131. 82 See, eg Order of 19 October 1983 in Case C-75/83 Ferriere San Carlo v Commission [EU:C:1983:283]; Case C-256/81 Paul’s Agriculture v Council and Commission [EU:C:1983:138]. 83 Order of 12 March 1992 in Case T-73/91 Gavilan v Parliament [EU:T:1992:42]. 84 Order of 10 June 1993 in Case C-41/92 The Liberal Democrats v Parliament [EU:C:1993:234], where an action was brought against the European Parliament for failure to draw up uniform electoral proposals and where a resolution on the draft uniform electoral procedure for MEPs was adopted following the oral hearing. 85 Order of 23 September 1987 in Case C-43/83 De Naeyer v Commission [EU:C:1987:382]; Order of 12 March 1992 in Case T-73/91 Gavilan v Parliament [EU:T:1992:42]. 86 In Joined Cases T-89/91, T-21/92 and T-89/92 X v Commission [EU:T:1993:102], the General Court ordered the Commission to bear all of the costs of one case because it had provoked the proceedings by not communicating information to the applicant in time. In Order of 12 March 1992 in Case T-73/91 Gavilan v Parliament [EU:T:1992:42], the General Court ordered the Parliament to bear its own costs and one-half of the applicant’s costs on the basis that, despite the action possibly being inadmissible, the applicant had been placed in a position of unjustified uncertainty as to her career for a period of seven years. In Order of 4 December 2014 in Case T-164/12 Alstom v Commission [EU:T:2014:1089], the General Court held that the parties had to bear their own costs because the Commission’s decision to withdraw the contested decision was connected with fresh developments in the proceedings for which neither the Commission nor the applicant could be held responsible.

Allocation of Costs in Direct Actions and in Intellectual Property Cases 681 relevant, the prima facie chances of success;87 the responsibility of the parties for the situation;88 the conduct of the parties; and the reasons why the case did not proceed to judgment.89 For instance, where an action for annulment becomes devoid of purpose because the applicant lost its interest to act during the Court proceedings, eg as a result of being liquidated and ceasing business activity, the General Court may well order it to bear the costs90 (cf para 3.115). Conversely, where the action for annulment becomes devoid of purpose because the defendant institution or body withdraws the contested act after the lodging of the action, the defendant will normally be ordered to bear the costs (cf para 3.127).91 (iii) Discontinuance and Withdrawal Main rule: the party that discontinues or withdraws pays the costs. Article 141 of the CJ RoP and Article 136 of the GC RoP establish the rules for allocating costs in the event that proceedings are discontinued or withdrawn prior to final judgment92 (cf para 5.351). The general principle is that a party that discontinues or withdraws from proceedings is ordered to pay the costs, if they have been applied for in the other party’s observations on the discontinuance.93 It is important to note in this regard that the original request for costs that may have been included in the main pleadings will not be sufficient to cover discontinuance by the Courts.94 A specific request needs to be included in the observations on discontinuance. If costs have not been claimed, the parties shall bear their own costs.95 The general principle is, however, subject to two exceptions (cf paras 5.390–5.391).

5.389

Exception – agreement between the parties as to costs, including out-of-court settlement in actions for annulment and for failure to act. First, if the parties have come to an agreement on costs, the Courts’ decision as to costs shall be in accordance with that agreement96 and the Court will not entertain submissions that put the agreement into question.97 The burden, however, will be on the parties to bring the agreement to the Court’s attention. These rules also apply where

5.390

87 See the Opinions of AG Roemer in Case C-103/63 Rhenania Schiffahrts- und Speditionsgesellschaft v Commission [EU:C:1964:36] and in Case C-74/72 Di Blasi v Commission [EU:C:1973:69]. See also the Opinions of AG Reischl in Case C-31/71 Gigante v Commission [EU:C:1975:20] and Case C-74/81 Flender v Commission [EU:C:1981:279]. 88 In Order of 10 June 1987 in Case 321/81 Battaglia v Commission [EU:C:1987:263], the defendant was ordered to bear the applicant’s costs after acknowledging that its conduct was responsible for the commencement of the proceedings and that the applicant’s arguments were essentially well founded. In Order of 8 June 1988 in Case C-242/86 Ireland v Commission (EAGGF) [EU:C:1988:288], the defendant was ordered to bear the applicant’s costs because the applicant could not be reproached for having commenced proceedings in view of the imminent expiry of the time limit for doing so and the conditional nature of the assurances provided by the Commission. 89 Joined Cases C-7/54 and C-9/54 Groupement des Industries Sidérurgiques Luxembourgeoises v High Authority [EU:C:1956:2]; Joined Cases C-5/60, C-7/60 and C-8/60 Meroni and Others v High Authority [EU:C:1961:10]; Order of 10 June 1987 in Joined Cases C-736/79 and C-738/79 to C-780/79 Aranovitch and Others v Commission [EU:C:1987:262]. See also Case C-31/71 Gigante v Commission [EU:C:1975:20]; Case C-74/81 Flender v Commission [EU:C:1981:279]; Case C-118/91 France v Commission [not reported]. 90 Case T-269/03 Socratec v Commission [EU:T:2009:211]. 91 Order of 8 November 2011 in Case T-25/10 BASF Schweiz and BASF Lampertheim v Commission [EU:T:2011:642]; Order of 31 January 2008 in Case T-151/06 Aluminium Silicon Mill Products v Commission [EU:T:2008:26]. 92 CJ RoP, Art 148 and GC RoP, Art 125 govern the discontinuance of proceedings before the EU Courts. 93 CJ RoP, Art 141(1); GC RoP, Art 136(1). 94 R Plender, European Courts Procedure (Sweet & Maxwell, London, 2010) 485. 95 CJ RoP, Art 141(4); GC RoP, Art 136(4). See also Order of 9 September 2014 in Case T-155/12 DEP Schulze v OHMI – GKL (Klassiklotterie) [EU:T:2014:287], which confirms that the same principle applies in respect of interveners that discontinue their intervention. 96 CJ RoP, Art 141(3); GC RoP, Art 136(3). 97 Order of 20 January 1995 in Case T-124/93 Georg Werner v Commission [EU:T:1995:8] para 9.

682 Costs and Legal Aid the parties reach an out-of-court settlement in actions for annulment or actions for failure to act, further to which the applicant discontinues the proceedings98 (cf para 5.351). 5.391

Exception – conduct of the other party. Secondly, at the request of the party that discontinues or withdraws from proceedings, the costs shall be borne by the other party if this appears justified by the conduct of the latter.99 The burden, however, lies with the withdrawing party to show why the other party should be ordered to bear the costs.100 In general, a concession by the defendant of the applicant’s claims or a change in the defendant’s position after the commencement of proceedings that renders those proceedings devoid of purpose will justify the withdrawal or discontinuance of proceedings and result in an order for the defendant to bear the costs.101 Alternatively, the Court can order each party to bear his own costs where this is warranted.102 (iv) Amicable Settlement

5.392

Costs are, as a rule, allocated in accordance with the agreement of the parties. In the context of settlements (cf paras 5.355–5.356), the Rules of Procedure103 provide that if, before the relevant Court has given its decision, the parties reach a settlement of their dispute and inform the Court of the abandonment of their claims, the President104 orders the case to be removed from the register and gives a decision as to costs in accordance with Articles 136 and 138 of the GC RoP or Article 141 CJ RoP (cf para 5.390), having regard to any proposals made by the parties on the matter. As such, the relevant Court will generally respect any agreement that the parties have reached in their settlement regarding the allocation of costs, failing which the standard rules on the allocation of costs apply. It should be noted, however, that the rules on settlement do not apply to actions for annulment brought under Articles 263 TFEU or actions for failure to act brought under 265 TFEU.105 In these cases, if the parties reach an out-of-court settlement, the applicant must discontinue the proceedings (cf para 5.351). Even in such a situation, however, the agreement of the parties on costs will be taken into account by the Courts (cf para 5.390). Settlement initiated by the General Court in staff cases is regulated separately. In such cases, the agreement on costs made by the parties binds the General Court.106 (v) Interim Measures

5.393

Main rule in proceedings before the General Court: the costs are reserved. Interim m easures are presented in Chapter 5.2 above. As to costs incurred in such proceedings before the General 98 Discontinuation is a way for the applicant to give effect to an out-of-court settlement in actions for annulment and actions for failure to act, since the rules on settlement foreseen in CJ RoP, Art 147(1) and GC RoP, Art 124(1) do not apply to these types of actions. See CJ RoP, Art 147(2); GC RoP, Art 124(2); cf para 5.392. 99 CJ RoP, Art 141(2); GC RoP, Art 124. 100 Order of 18 September 1985 in Case C-196/84 ROGESA v Commission [not reported]. 101 Joined Cases C-46/59 and C-47/59 Meroni v High Authority [EU:C:1962:44]; Order of 14 October 1981 in Joined Cases C-123/81 and C-123/81 R Krupp Stahl v Commission [EU:C:1981:232]; Order of 11 November 1987 in Case C-4/85 Commission v Greece (product labels in Greek) [EU:C:1987:477]; Case C-54/87 Commission v Italy (EC’s own resources) [EU:C:1989:76]; Case C-376/90 Commission v Belgium (protection against ionizing radiation) [EU:C:1992:457]; Order of 6 July 2012 in Case T-173/12 Areva v Commission [EU:T:2012:349], where the Commission was ordered to bear its own costs and half of the applicant’s costs after amending the contested decision in response to one of the applicant’s pleas. 102 Order of 15 July 1994 in Case T-281/93 Walsh v Council and Commission [EU:T:1994:91]; Order of 15 July 1994 in Case T-158/93 Brandt v Commission [EU:T:1994:286]. Order of 3 May 1991 in Joined Cases C-372/90 P, C-372/90 P-R and C-22/91 P SEP v Commission [EU:C:1991:183]. 103 CJ RoP, Art 147(1); GC RoP, Art 124(1). 104 cf 1.36 and 1.61. 105 CJ RoP, Art 147(2); GC RoP, Art 124(2). 106 GC RoP, Art 125b(3).

Allocation of Costs in Direct Actions and in Intellectual Property Cases 683 Court, Article 158(5) of the GC RoP provides that ‘In the order closing the proceedings for interim relief, costs shall be reserved until the decision of the General Court on the substance of the case’. It follows from this principle, which is consistent with Article 133 of the GC RoP, that, on the one hand, costs are to be reserved in the interim order, and, on the other, that it is for the Judge deciding the substance of the case to rule on all the costs relating to the entire proceedings. Exceptions: where the interim order allocates costs. Article 158(5) of the GC RoP also provides, however, that ‘if it appears justified in the light of the circumstances of the case, a decision as to the costs relating to the proceedings for interim relief shall be given in the order [closing the proceedings for interim relief], pursuant to Articles 134 to 138’ (ie the standard rules for determining the allocation of costs in the case of a final decision). This part of Article 158(5) of the GC RoP aims to take account of special situations where no action on the substance has been brought107 or where the main case in which an interim measure is sought has been removed from the register even before the application for interim measures and notice of its discontinuance have been served on the defendant.108 The costs may also be allocated in the order closing the proceedings for interim relief where the applicant discontinues those proceedings even before the main action has been served on the defendant.109 The same applies where the Judge before whom the main action has been brought is not in a position to rule on the costs relating to the ancillary proceedings for interim relief either because the latter had not been closed at the time of his ruling in the main case110 or because the application for interim relief was introduced at a time when the main case was already being deliberated upon.111

5.394

Practice of the Court of Justice. Although not explicitly regulated in the CJ RoP, the standard practice of the Court of Justice regarding costs incurred in proceedings for interim relief mirrors that of the General Court.112

5.395

(vi) Applications to Intervene Main rule: if the application for leave to intervene is refused, the applying person pays the costs. With respect to proceedings before the General Court, Article 144 of the GC RoP provides that a decision as to costs relating to the application to intervene, including the costs of the applicant for leave to intervene, must be included in the order of the President113 in which the

107 GC RoP, Art 156(1) provides that an application to suspend the operation of a measure is only admissible if the applicant also challenged that measure before the General Court. This means that if there is no such challenge, the application for interim measure is dismissed as inadmissible and the applicant is ordered to pay the costs in the order that dismisses the application for interim measure. 108 Order of 14 July 2008 in Case T-254/00 R Hotel Cipriani v Commission [EU:T:2008:284]. 109 Order of 17 November 2006 in Case T-283/06 R Dairo Air Services v Commission [not reported]. 110 In that situation, it is the Judge hearing the application for interim measures who must give a ruling on costs in the order declaring that there is no longer any need to adjudicate on the application for interim measures (see Order of 15 January 2004 in Case T-393/03 R Valenergol v Council [not reported]; Order of 30 March 2007 in Case T-366/00 R Scott v Commission [EU:T:2007:103]). 111 Order of 24 March 2004 in Case T-246/01 R GrafTech International v Commission [not reported]. 112 See, eg Order of 19 December 2013 in Case C-506/13 P-R Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission [EU:C:2013:882]; Order of 8 April 2014 in Case C-78/14 P-R Commission v ANKO AE Antiprosopeion, Emporiou kai Viomichanias [EU:C:2014.239]. See also Case C-8/59 Niederrheinische Hütte v High Authority [EU:C:1960:13], in which no action had been commenced at the time that the application for interim measures was heard. In this case, costs were awarded against the applicant on the basis that the application had been dismissed. In Order of 12 October 1992 in Case C-295/92 R Landbouwschap v Commission [EU:C:1992:380], the applicant was ordered to pay the costs of the interim proceedings on the basis that the main proceedings had already been declared inadmissible. 113 cf para 1.61.

5.396

684 Costs and Legal Aid application for leave to intervene is refused.114 The decision on costs shall be made pursuant to the standard rules applicable to the allocation of costs set out in Articles 134 and 135 of the GC RoP (ie the unsuccessful party pays unless one of the exceptions applies, cf paras 5.367–5.371). 5.397

Where the application for leave to intervene is withdrawn. If the party withdraws the application for leave prior to the President115 issuing an order on whether to grant leave to intervene, a decision on costs will be made pursuant to Article 136 of the GC RoP (withdrawals and discontinuance, cf para 5.389 et seq)116 in the order removing the application to intervene from the case. If, however, leave to intervene has been granted and the intervention is subsequently withdrawn, the rules set out in Article 138 of the GC RoP (costs of interveners, cf para 5.384 et seq) apply to the costs order in addition to those contained in Article 136 of the GC RoP.117

5.398

Disposal of the case prior to an application for leave to intervene being brought. Under the GC RoP, if the case is disposed of before the application to intervene has been determined, the applicant that applies for leave to intervene and the main parties shall each bear their own costs relating to the application to intervene.118

5.399

Practice before the Court of Justice. With respect to proceedings before the Court of Justice, a party whose application to intervene is refused will generally be required to bear his own costs.119

5.10.4. Allocation of Costs in Appeals 5.400

Where the Court of Justice gives final judgment. In accordance with Article 184(2) of the CJ RoP, if the Court of Justice dismisses the appeal or upholds it and gives final judgment in the matter, it shall make a decision as to costs. If, on the substance, the Court dismisses the appeal as unfounded, it will only rule on the costs of the appeal and not on the proceedings before the General Court. This is because, following the ruling of the Court of Justice, the General Court’s judgment, including its order on costs, remains intact. If, however, the Court of Justice concludes that the appeal is well founded and proceeds to give a final judgment in the matter, the costs order will cover both the appeal and the proceedings before the General Court (the latter’s judgment having been set aside in whole or in part).120

5.401

Where the Court of Justice refers the case back to the General Court. If the Court of Justice sets aside the first instance decision but it does not give a final judgment in the matter on appeal, instead remitting it to the General Court for further examination (cf para 3.640, cf para 4.447 et seq), the Court of Justice will reserve the costs and it will be for the General Court to address the question of costs for the whole procedure in its final ruling.121 114 GC RoP, Art 144(6). 115 cf para 1.61. 116 GC RoP, Art 144(8). 117 GC RoP, Art 144(9). 118 GC RoP, Art 144(10). 119 See, eg Case C-245/95 P Commission v NTN Corporation and Koyo Seiko [EU:C:1996:49]; Case C-186/02 P Ramondín and Ramondín Cápsulas v Commission [EU:C:2003:141]. 120 Case C-345/90 P Parliament v Hanning [EU:C:1992:79] paras 39–42. 121 GC RoP, Arts 219 and 223; Case C-185/90P Gill v Commission [EU:C:1991:380]; Opinion of AG van Gerven in Case C-68/91 P Moritz v Commission [EU:C:1992:421]; Opinion of AG Jacobs in Case C-36/92 P Samenwerkende Electriciteits-produktiebedrijven v Commission [EU:C:1993:928].

Disputes Concerning the Costs to be Recovered 685 Principles of allocation and quantification of costs in direct actions apply mutatis mutandis to appeals. Where the Court of Justice dismisses the appeal, or upholds it and gives final judgment in the matter, thereby also making an order on costs, the provisions governing the allocation (cf Section 5.10.3) and quantification (cf Sections 5.10.5 and 5.10.6) of costs in direct actions before the Court of Justice122 shall apply mutatis mutandis in the case of appeals.123 As such, costs in appeals will generally follow the event, with the unsuccessful party being ordered to pay the successful party’s costs unless one of the exceptions contained in Articles 139–143 of the CJ RoP applies (cf para 5.371 et seq).

5.402

Successful appeals brought by Member States or EU institutions or bodies which did not intervene at first instance. The general position set out above (cf para 5.402) is, however, supplemented by specific rules governing appeals. First, Article 184(3) of the CJ RoP provides that when a successful appeal is brought by a Member State or an EU institution or body which did not intervene in the proceedings at first instance, the Court of Justice may order that the parties share the costs or that the Member State, institution or body pay the costs which the appeal has caused an unsuccessful party to incur.124 Article 184(3) of the CJ RoP should be seen as separate from cases in which Member States or EU institutions or bodies intervene in an appeal. In the latter cases, Article 140(1) of the CJ RoP would apply, which provides that Member State or EU institutional interveners must bear their own costs.

5.403

Interveners at first instance. Article 184(4) CJ RoP provides that where the appeal has not been brought by an intervener at first instance (but that intervener simply becomes involved in the appeal by reason of his participation in the first instance proceedings), he may not be ordered to pay costs in the appeal proceedings unless he participated in the written or oral part of the proceedings before the Court of Justice. Where an intervener at first instance takes part in the appeal proceedings (eg by lodging a response and thus becoming a respondent, cf para 3.612), the Court of Justice may decide that he shall bear his own costs.125

5.404

5.10.5. Disputes Concerning the Costs to Be Recovered Notion. The costs order in the final judgment or order closing proceedings126 in direct actions,127 intellectual property cases128 and appeals will only decide which party or parties must bear the costs, as well as the ratio according to which the costs are divided where the costs incurred by one of the parties is borne by several parties.129 It does not, however, quantify the amount of those costs at this first stage. As to the second stage, consisting in the quantification (‘taxation’) of recoverable costs, the Rules of Procedure130 only provide for recourse to be had to the EU Courts 122 CJ RoP, Arts 137–146. 123 CJ RoP, Art 184(1). 124 Case C-73/97 P France v Comafrica and Others [EU:C:1999:13]. 125 See, eg Case C-365/12 P Commission v EnBW [EU:C:2014:2039]. 126 As a rule, the order on costs is made in the final judgment or order closing the case. Exceptionally, a decision on costs may also be made in a decision on interim measures or in the order on an application for leave to intervene (cf paras 5.393–5.399). 127 cf para 4.100. 128 cf Chapter 3.5. Intellectual Property Cases. 129 See, eg Case T-541/08 Sasol and Others v Commission (candle wax cartel) [EU:T:2014:628], where the Commission was ordered to pay its own costs and two-thirds of the applicants’ costs, while the applicants were ordered to bear one-third of their costs. 130 CJ RoP, Art 145(1); GC RoP, Art 170(1).

5.405

686 Costs and Legal Aid in the event of a genuine dispute between the parties. Therefore, as a first step in that second stage, the party entitled to costs must formally request the reimbursement of his costs from the other party (cf para 5.407). To that effect, he must provide the other party with a detailed list of expenses and costs that he considers to be recoverable. In most cases, the parties succeed in reaching an agreement on the amount of recoverable costs. They may rely on the case law of the EU Courts on taxation of costs, which is reported and thus offers guidance to the parties. Where the exchanges of the parties do not result in an agreement, as a second step, the party concerned131 may bring an application for taxation of costs to the relevant Court (cf para 5.409). The applicant for a taxation order must be able to demonstrate that he has provided the other party with a more or less detailed list of expenses and costs that he considers to be recoverable, and that such exchange has not resulted in the parties reaching an agreement.132 Furthermore, an application for a taxation order must relate to a dispute regarding ‘either the amount of the costs or the payment of the costs’.133 If the applicant for a taxation order is, in reality, seeking a variation or revocation of the original order allocating the burden of costs between parties, as made at the first stage, his application for taxation will be inadmissible.134 The application for a taxation order is treated as a separate case by the Courts. Its case number consists of the number of the original case in which the costs have been allocated, followed by the letters ‘DEP’, which stand for ‘dépens’ (‘costs’ in French). The parties to DEP cases are nonetheless not necessarily the same as the main parties to the original case, since a DEP case may also oppose one of the main parties to an intervener in the original case.135 The Courts determine the amount of the recoverable costs by way of an order.136

5.10.5.1. Procedure 5.406

General. The procedure for applying for taxation of costs is substantively the same before the Court of Justice and the General Court. There are, however, a number of formal differences owing to the different structures of the two Courts. (i) Time Limits

5.407

Earliest point at which the reimbursement of costs can be requested from the other party. As mentioned above (cf para 5.405), an application for taxation of costs can only be made if there is a genuine dispute between the parties as to the amount recoverable.137 Therefore, the party entitled to costs must first request the reimbursement of costs from the other party which has been ordered to pay the costs in the original judgment or order. With respect to the earliest point at which a party can make such a request for costs to the other party, in Air France, the General Court considered that

131 CJ RoP, Art 145(1); GC RoP, Art 170(1). 132 See, eg Order of 18 April 1975 in Case C-6/72 DEP Europemballage and Continental Can v Commission [EU:C:1975:50], in which the defendant, who had been ordered to pay the costs, paid an amount which the applicant considered did not match the amount recoverable. See also Order of 17 September 1998 in Case T-271/94 DEP Branco v Commission [EU:T:1998:222]. 133 Order of 22 February 1968 in Joined Cases C-9/65 and C-58/65 DEP Acciaierie San Michele v High Authority [EU:C:1968:10]; Order of 26 May 1967 in Case C-25/65 DEP SIMET v High Authority [EU:C:1967:13]; Order of 18 April 2012 in Case T-323/10 DEP Chickmouza Chabou v OHIM [EU:T:2012:185] para 6 et seq. 134 Order of 15 July 1993 in Joined Cases T-33/89 and T-74/89 DEP Blackman v Parliament [EU:T:1993:68]. 135 See, eg Order of 17 April 1996 in Case T-2/93 DEP British Airways v Air France [EU:T:1995:45]. 136 CJ RoP, Art 145(1); GC RoP, Art 170(3). 137 CJ RoP, Art 145(1); GC RoP, Art 170(1).

Disputes Concerning the Costs to be Recovered 687 Although the initiation of appeal proceedings does not have suspensory effect, the Court regards it as normal for a party entitled to costs to await the expiration of the time limit for lodging an appeal before submitting its demand for reimbursement of costs to the unsuccessful party.138

No time limit for intermediate steps following the initial request for reimbursement. There is no time limit for the intermediate steps (taken prior to launching taxation proceedings) once the initial request for reimbursement has been communicated to the party ordered to pay the costs. In Tetra Laval,139 the Court of Justice considered that, because the applicant had communicated its initial request for reimbursement of costs to the Commission within a reasonable period, it did not matter that the applicant had only reacted two years later to the Commission’s counterproposal regarding the calculation of recoverable costs, by responding first to the Commission. Therefore, the applicant’s formal application for taxation of costs before the Court of Justice, filed after said response to the Commission, was admissible.

5.408

The application for taxation must be brought within a reasonable time. There is no statutory time limit for lodging an application for taxation. The Court of Justice has, however, ruled that an application for taxation of costs should be brought ‘within a reasonable period’, without specifying what would constitute such a period. In CIARA v Fediol140 and Continental Can,141 the taxation applications remained admissible despite the fact that they were lodged more than two years after the judgment in the main proceedings had been given.142 The flexible approach of the EU Courts is designed to allow sufficient time for the parties to find agreement on costs without resorting to Court proceedings.

5.409

(ii) Structure of Proceedings General. Taxation proceedings generally consist of one round of written pleadings,143 with no oral hearing. As with any other form of proceedings, taxation proceedings are capable of losing their object144 or being discontinued by the parties without it being necessary for the Court to issue an order.145

5.410

Language. Before both the General Court and the Court of Justice, the language of the taxation proceedings shall be the language of the main judgment or order to which the taxation application relates.146

5.411

Form and content of the application for taxation. With respect to the contents and annexes of the application for taxation itself, Article 170 of the GC RoP requires that such an application be submitted in the form prescribed in Articles 76–78 of the GC RoP. As such, the application

5.412

138 Order of 17 April 1996 in Case T-2/93 DEP British Airways v Air France [EU:T:1995:45] para 12. 139 Order of 20 May 2010 in Joined Cases C-12/03 P-DEP and C-13/03 P-DEP Tetra Laval v Commission [EU:C:2010:280] paras 22–24. 140 Order of 15 June 1992 in Case C-187/85 DEP CIARA v Fediol [not reported]; Order of 18 April 1975 in Case C-6/72 DEP Europemballage and Continental Can v Commission [EU:C:1975:50]. 141 Order of 18 April 1975 in Case C-6/72 DEP Europemballage and Continental Can v Commission [EU:C:1975:50]. 142 See also Order of 21 June 1979 in Case C-126/76 DEP Firma Gebrüder Dietz v Commission [EU:C:1979:158]. 143 In certain cases, the Courts have permitted a second round of pleadings. See, eg Order of 30 September 1964 in Joined Cases C-20/63 and C-21/63 DEP Maudet v Commission [EU:C:1964:69]; Joined Cases C-19/74 and C-20/74 Kali-Chemie v Commission [EU:C:1975:58]. 144 Order of 26 February 2016 in Case T-284/06 DEP Gualtieri v Commission [EU:T:2011:591]; Order of 22 December 2009 in Case T-206/07 DEP Foshan Shunde Yonjian Housewares and Hardware v Council [EU:T:2009:536]. 145 Order of 7 October 2005 in Case T-598/97 DEP BSC Footware Supplies v Council [EU:T:2005:351]. 146 CJ RoP, Art 37(2)(c); GC RoP, Art 45(3)(b).

688 Costs and Legal Aid for taxation needs to comply with the standard rules applicable to all other applications in direct actions before the General Court147 (cf paras 4.108 and 4.131–4.135). Article 145 of the CJ RoP does not explicitly prescribe the form in which an application for taxation should be made. Nevertheless, it is good practice to follow the requirements set out in Articles 120–122 of the CJ RoP related to the content (cf para 4.108) and annexes of direct actions lodged with the Court of Justice. 5.413

Procedure. Following submission of the application for taxation of costs, the other party or parties concerned by the application will be given the opportunity to submit written observations.148 In the case of an application to the Court of Justice, the Advocate General will be heard on the issue.149 After having given the opposite parties the opportunity to submit observations, the relevant Court shall give its decision on the taxation of costs by way of an order.150

5.414

Formation of the Court. In the General Court, the application for taxation will be treated by the same formation of the Court that delivered the main judgment or order to which that application relates.151 In the Court of Justice, the application for taxation will be treated by the same formation of three Judges that delivered the main judgment or order, or by a formation of three Judges having been members of the Chamber that decided the main case where that Chamber consisted of more than three Judges.152

5.415

No right to appeal. If the proceedings result in the adoption of an order, then there is no right of appeal.153 A further application to the relevant Court can, however, be made for an interpretation of the taxation order.154

5.10.5.2. Additional Costs for the Taxation Procedure and Interest 5.416

No separate order for the costs of the taxation proceedings themselves. The right to recover a specific sum only accrues upon the handing down of the relevant taxation order,155 and will take into account all of the circumstances of the case up to and including the final taxation order.156 As such, there is no separate order for the costs of the taxation proceedings themselves, with the costs of the taxation proceedings either being included by way of an increase to the amount to be paid or a deduction from that amount, where the Court considers such deduction to be appropriate.157 147 GC RoP, Art 76. 148 CJ RoP, Art 145(1); GC RoP, Art 170(2). 149 CJ RoP, Art 145(1). 150 CJ RoP, Art 145(1); GC RoP, Art 170(3). 151 GC RoP, Art 162. 152 CJ RoP, Art 145(1)–(2). 153 GC RoP, Art 170(3). 154 Order of 21 January 1970 in Case C-17/68 DEP Reinarz v Commission [EU:C:1970:2], although in this case the Court refused to interpret the costs order further on the basis that it was already sufficiently clear. 155 Order of 18 April 1975 in Case C-6/72 DEP Europemballage and Continental Can v Commission [EU:C:1975:50] para 5. 156 Order of 6 January 2004 in Case C-104/89 DEP Mulder v Council [EU:C:2004:1] paras 87 and 88; Order of 18 April 1975 in Case C-6/72 DEP Europemballage and Continental Can v Commission [EU:C:1975:50] para 5; Order of 15 March 1994 in Case C-107/91 DEP ENU v Commission [EU:C:1993:56] para 26; Order of 7 June 2012 in Case C-451/10 P-DEP France Télévisions v TF1 [EU:C:2012:323] para 18; Order of 5 December 2013 in C-406/11 P-DEP Atlas Air v Atlas Transport [EU:C:2013:817] para 10; Order of 12 October 2012 in Case C-254/09 P-DEP Zafra Marroquineros v Calvin Klein Trademark Trust [EU:C:2012:628] para 22; Order of 14 November 2013 in Case C-582/11 P-DEP Schwaaner Fischwaren v Rügen Fisch [EU:C:2013:754] paras 22 and 33. 157 Order of 26 November 1985 in Case C-318/82 DEP Leeuwarder Papierwarenfabriek v Commission [EU:C:1985:468] para 5.

Recoverable Costs 689 Default interest. Claims for default interest for the period from the date of judgment or order in the main action until the date of the taxation order have been dismissed by the EU Courts on the basis that the recovering party did not have any entitlement to a specific sum prior to the date on which the taxation order was handed down.158 However, taxation orders are enforceable immediately and default interest can be applied for the period from the date of the taxation order until the date of actual reimbursement.159

5.417

5.10.6. Recoverable Costs Notion. Even if a party is awarded its costs in the final judgment or order closing proceedings, the party will only be entitled to recover those costs that constitute ‘recoverable costs’ within the meaning of Article 144 of the CJ RoP or Article 140 of the GC RoP (as applicable), the texts of which are substantively identical. Recoverable costs fall under two broad heads:

5.418

i) Sums payable to witnesses and experts;160 and ii) Expenses necessarily incurred by the parties for the purpose of the proceedings, in particular travel and subsistence expenses and the remuneration of agents, advisors or lawyers.

5.10.6.1. Sums Payable to Witnesses and Experts Costs incurred following measures of inquiry. It is clear from the text of the Rules of Procedure161 that this head of costs only applies in the event that the Court carries out measures of inquiry under Article 73 of the CJ RoP or Article 100 of the GC RoP. These provisions, which are substantively identical, permit the EU Courts to order the examination of witnesses or commission an expert’s report. In this case, the main parties or one of them may be called upon to lodge security with the relevant Court’s cashier for the witnesses’ costs or the costs of the expert’s report.

5.419

Travel and subsistence. The Rules of Procedure provide that witnesses and experts will be entitled to reimbursement of their travel and subsistence expenses for attending the oral hearing. In addition, witnesses will be entitled to compensation for loss of earnings, while experts will be entitled to recover fees for their services.162

5.420

Unilaterally commissioned experts. This head of costs does not apply to any amount paid to an expert that a party has unilaterally commissioned – for example, for the purposes of contributing to the written or oral pleadings. Such expenses might, however, be recoverable, under the second head of recoverable costs, where such expenses were necessarily incurred for the purposes of proceedings.

5.421

158 Order of 6 January 2004 in Case C-104/89 DEP Mulder and Others v Council and Commission [EU:C:2004:1] para 86; Order of 16 May 2014 in Case T-491/11 P-DEP Marcuccio v Commission [EU:T:2014:513] para 31. 159 Order of 3 May 2011 in Case T-239/08 DEP Comtec Translations v Commission [EU:T:2011:191] para 39; Order of 3 November 2014 in Case T-381/06 DEP FRA.BO v Commission [no ECLI number]. Similarly, whether any costs incurred in the enforcement of a taxation order can be recovered will be subject to the national rules in force in the State in which the party seeks enforcement (Order of 11 January 1977 in Case C-4/73 DEP Nold v Ruhrkohle [EU:C:1977:1]). The parties to the proceedings before the CJEU are entitled to request an authenticated copy of the taxation order for the purposes of enforcement under CJ RoP, Art 145(3) and GC RoP, Art 170(4). 160 CJ RoP, Art 73; GC RoP, Art 100. 161 CJ RoP, Art 144; GC RoP, Art 140. 162 CJ RoP, Art 73(2)–(3); GC RoP, Art 100(2)–(3).

690 Costs and Legal Aid

5.10.6.2. Expenses Necessarily Incurred for the Purposes of Proceedings 5.422

General. Article 144 of the CJ RoP and Article 140 of the GC RoP cover expenses necessarily incurred for the purposes of proceedings. By way of non-exhaustive example, such costs include remuneration of agents, advisers and lawyers, as well as travel and subsistence expenses. The common themes that link all expenses recoverable under these Articles are that: (i) the expenses must have been ‘necessarily incurred for the purposes of proceedings’;163 and (ii) the party claiming the costs must be able to substantiate his claims with objective evidence.

5.423

The notion of proceedings. The EU Courts have interpreted ‘proceedings’ as referring only to proceedings before the EU Courts, to the exclusion of any prior stage.164 Any costs incurred prior to the judicial phase, for example, in the administrative stage preceding the adoption of the contested measure,165 in correspondence prior to launching proceedings166 or in a complaint to the European Ombudsman,167 will not be recoverable. Intellectual property cases form an exception, insofar as costs necessarily incurred in the proceedings before the Boards of Appeal of the European Union Intellectual Property Office or the Community Plant Variety Office are also recoverable168 (cf para 3.558).

5.424

‘Necessarily’ incurred costs. Furthermore, the claiming party needs to be able to demonstrate that the costs claimed were ‘necessarily’ incurred as part of the said proceedings (cf para 5.423).169 On this basis, the EU Courts have refused to order recovery of costs where: the costs were incurred after the oral hearing;170 the costs related to periods when there was no procedural activity;171 the expenses were incurred in respect of negotiations aimed at arriving at an amicable settlement, unless those negotiations were due to an EU Court decision foreseeing such negotiations;172

163 Order of 28 June 2004 in Case T-342/99 DEP Airtours v Commission [EU:T:2004:192] para 13; Order of 23 March 2012 in Case T-498/09 P-DEP Kerstens v Commission [EU:T:2012:147] para 13; Order of 11 December 2014 in Case T-283/08 P-DEP Longinidis v Cedefop [EU:T:2014:1083] para 19. 164 Order of 21 October 1970 in Case C-75/69 DEP Hake v Commission [EU:C:1970:82]; Case C-294/90 DEP British Aerospace v Commission [EU:C:1994:395] paras 10–12; Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others v Commission (cement cartel) [EU:T:2000:77] para 5134. However, costs incurred for an application for legal aid will generally be recoverable: see Order of 11 September 2007 in Case F-12/07 AJ O’Connor v Commission [EU:F:2007:157]. 165 Order of 5 July 1993 in Case T-84/91 DEP Meskens v Parliament [EU:T:1993:57] para 14; Order of 8 November 2001 in Case T-65/96 DEP Kish Glass v Commission [EU:T:2001:261] para 27. 166 Case T-226/01 CAS Succhi di Frutta v Commission [EU:T:2006:252] para 69. This is the case even if the aim of the correspondence was to prevent the matter becoming contentious (see Order of 7 December 2004 in Case T-251/00 DEP Lagardère v Commission [EU:T:2004:353] paras 21 and 22), and cannot be circumvented by way of an action for damages (Case T-140/04 Ehcon v Commission [EU:T:2005:321] para 79). 167 Case T-294/04 Internationaler Hilfsfond v Commission [EU:T:2005:280]. 168 GC RoP, Art 190(2). 169 Order of 7 June 2012 in Case C-451/10 P-DEP France Télévisions v TF1 [EU:C:2012:323] para 17; Order of 14 November 2013 in Case C-582/11 P-DEP Schwaaner Fischwaren v Rügen Fisch [EU:C:2013:754] para 17; Order of 3 December 2014 in Case C-435/13 P-DEP Qwatchme v Kastenholz [EU:C:2014:2421] para 9. 170 Order of 27 November 2000 in Case T-78/99 DEP Elder v Commission [EU:T:2000:274] para 17; Order of 24 January 2002 in Case T-38/95 DEP Groupe Origny v Commission [EU:T:2002:13] para 31. This includes work carried out in ‘analysing’ the AG Opinion prior to the handing down of the final judgment (Order of 6 January 2004 in Case C-104/89 DEP Mulder and Others v Council and Commission [EU:C:2004:1] para 50). 171 See, eg Order of 6 January 2004 in Case C-104/89 DEP Mulder and Others v Council and Commission [EU:C:2004:1] para 47, where the Court of Justice held that ‘lawyers’ fees for periods during which no procedural documents were notified must also be excluded since they are not necessary to the proceedings’. 172 Order of 25 November 2009 in Case T-383/03 DEP Hynix Semiconductor v Council [EU:T:2009:466] para 47. However, if the settlement includes a provision relating to costs, the EU Courts will generally respect the agreement reached by the parties.

Recoverable Costs 691 the expenses that cover reading into the file if the party’s representatives have already been involved in the administrative stage of the proceedings;173 the costs relate to late pleas that were rejected because they were only brought forward at the stage of the reply or the rejoinder without justification of the delay (cf para 4.227);174 and costs incurred in observing another judicial procedure concerning similar questions of law.175 Evidence substantiating claims. In addition, if a party is to be successful in his application for a taxation of costs order, especially for fees for agents, advisors and lawyers, his application for taxation must be sufficiently substantiated.176 A failure to substantiate, however, may not be completely fatal to a request for taxation of costs. As the General Court confirmed in its order in First Data, ‘the failure to produce the invoices or other documents in evidence of the actual payment of the legal fees and expenses incurred does not prevent the Court [from] making a fair assessment and fixing the amount of the recoverable costs’.177 Any such ‘fair assessment’, however, must be made applying a strict test to the claims submitted,178 and the amount awarded will, therefore, likely be considerably lower than the amount claimed.

5.425

(i) Agents, Advisers and Lawyers Overview. As regards the quantification of the recoverable costs incurred as fees paid to agents, advisers and lawyers, the EU Courts must freely assess the details of the case, taking account of the subject matter and the nature of the dispute, its importance from the point of view of EU law and also the difficulties presented by the case, the amount of work which the contentious proceedings generated for the agents or counsel involved and the economic interests which the dispute presented for the parties.179

The Courts give primary consideration to the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings, irrespective of the number of lawyers who carried out that work.180 The Courts also enjoy wide discretion when deciding the hourly rate of the counsel for the purposes of the taxation order. Both the total number of

173 Order of 13 February 2008 in Case T-310/00 DEP Verizon v Commission [EU:T:2008:32] para 42. 174 Order of 13 June 2007 in Case T-157/01 DEP Danske Busvognmaend v Commission [EU:T:2007:175] para 37. 175 Order of 13 June 2007 in Case T-157/01 DEP Danske Busvognmaend v Commission [EU:T:2007:175] para 26. 176 Order of 8 November 1996 in Case T-120/89 DEP Stahlwerke Peine-Salzgitter v Commission [EU:T:1996:161] para 31; Order of 25 June 1998 in Joined Cases T-177/94 DEP, T-377/94 DEP and T-99/95 DEP Altmann and Others v Commission [EU:T:1998:139] para 20; Order of 8 November 2001 in Case T-65/96 DEP Kish Glass v Commission [EU:T:2001:261] para 29; Order of 6 March 2003 in Joined Cases T-226/00 DEP and T-227/00 DEP Nan Ya Plastics and Far Eastern Textiles v Council [EU:T:2003:61] para 35; Order of 25 January 2007 in Case T-214/04 DEP The Royal County of Berkshire Polo Club v OHMI [EU:T:2007:16] para 18. See also Order of 11 January 2008 in Case C-105/04 P-DEP CEF City Electrical Factors and CEF Holdings v Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie [EU:C:2008:8] para 42, where, in the absence of substantiation, the Court of Justice was unable to determine if the 322 hours of lawyers’ fees claimed were justified. 177 Order of 29 March 2007 in Case T-28/02 DEP First Data v Commission and VISA [EU:T:2007:101] para 31. 178 Order of 28 May 2013 in Case T-278/07 P-DEP Marcuccio v Commission [EU:T:2013:269] para 16; Order of 21 October 2014 in Case T-162/09 DEP Würth and Fasteners (Shenyang) v Council [EU:T:2014:916] para 11. 179 Order of 9 January 2008 in Case C-104/05 P-DEP Pucci v El Corte Inglés [EU:C:2008:1] para 10; Order of 24 October 2013 in Case C-554/11 P-DEP Internationaler Hilfsfonds v Commission [EU:C:2013:706] para 18; Order of 30 November 1994 in Case C-294/90 DEP British Aerospace v Commission [EU:C:1994:395] para 13. 180 Order of 3 December 2014 in Case C-435/13 P-DEP Qwatchme v Kastenholz [EU:C:2014:2421] para 12; Order of 14 November 2013 in Case C-582/11 P-DEP Schwaaner Fischwaren v Rügen Fisch [EU:C:2013:754] para 25; Order of 16 May 2013 in Case C-498/07 P-DEP Deoleo v Aceites del Sur-Coosur [EU:C:2013:302] para 28; Order of 15 September 2010 in Case T-221/05 DEP Huvis v Council [EU:T:2010:402] para 30.

5.426

692 Costs and Legal Aid hours and the hourly rate determined by the Courts may be lower than what has been billed. Therefore, the recoverable amount can be considerably less than the amount that the claiming party actually owes its lawyers and advisors.181 The following paras (cf paras 5.427–5.433) examine some of the factors that the EU Courts have previously taken into consideration when determining the remuneration to be recovered. 5.427

Agents and external lawyers of EU institutions or bodies. Under Article 19(1) of the Statute, EU institutions must be represented before the EU Courts by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer. Agents representing the EU institutions are usually officials of the relevant EU institution (cf para 4.43). In this case, representing the EU institution before the EU Courts will fall within the scope of the official’s duties as a whole. As such, the remuneration paid to the official cannot be considered as an expense incurred for the purposes of the proceedings and, therefore, will not be recoverable.182 Article 19(1) of the Statute does, however, permit the EU institutions to have recourse to the assistance of an external lawyer. When they do so, the external lawyer’s remuneration is recoverable,183 and will be assessed on the same basis as the remuneration of a lawyer representing a private party. The same goes for the agents of bodies, offices and agencies of the EU and for the external lawyers who assist these agents.184

5.428

Amount of work actually produced and hourly fee. The EU Courts will take account of the total number of hours of work corresponding to the services provided and considered objectively necessary for the purposes of the proceedings, including the number and type of written pleadings involved185 and whether there was an oral hearing.186 In practice,187 the Courts estimate the number of hours that they would expect the lawyers to spend on the case in question and multiply them by an acceptable hourly rate. The Courts will not award more hours than those actually spent, and will deduct from those hours the ones spent on non-recoverable tasks which appear in the bills. The Courts will then look for certain moderating factors (eg those set out in cf paras 5.429–5.433). Finally, the Courts apply an hourly rate that they consider reasonable in the light of the complexity of the case188 – but which is nevertheless usually below the standard market rate.189

181 Order of 10 September 2009 in Case C-204/07 P-DEP C.A.S. v Commission [EU:C:2009:526] para 13; Order of 1 October 2013 in Case C-521/09 P-DEP Elf Aquitaine v Commission [EU:C:2013:644] para 15; Order of 5 December 2013 in Case C-406/11 P-DEP Atlas Air v Atlas Transport [EU:C:2013:817] para 11. 182 Order of 21 June 1979 in Case C-126/76 DEP Dietz v Commission [EU:C:1979:158]; Order of 7 September 1999 in Case C-409/96 P-DEP Commission v Sveriges Betodlares Centralförening and Henrikson [EU:C:1999:389] para 12. 183 Order of 4 November 2008 in Case T-303/04 DEP Evropaiki Dynamiki v Commission [EU:T:2008:471] para 44. 184 Order of 10 October 2013 in Case C-38/09 P-DEP CPVO v Schräder [EU:C:2013:679] paras 20–22; Order of 11 December 2014 in Case T-283/08 P-DEP Longinidis v Cedefop [EU:T:2014:1083] para 24. While it is true that Art 19(1) of the Statute only requires EU institutions to be represented by their agents, in practice, bodies, offices and agencies are normally also represented by their agents. The latter may be assisted by external lawyers, as in the case of EU institutions. 185 Order of 6 February 1995 in Case T-460/93 DEP Tête and Others v European Investment Bank [EU:T:1995:19] para 12; Order of 5 July 1993 in Case T-84/91 DEP Meskens v Parliament [EU:T:1993:57] para 15. 186 Order of 6 March 2003 in Joined Cases T-226/00 DEP and T-227/00 DEP Nan Ya Plastics and Far Eastern Textiles v Council [EU:T:2003:61] para 41. The EU Courts will also assess the ratio between the hours charged for the hearing and the actual duration of that hearing (Order of 17 November 2009 in Case T-23/03 CAS v Commission [EU:T:2009:440] para 36). 187 See, eg Order of 28 June 2004 in Case T-342/99 DEP Airtours v Commission [EU:T:2004:192] paras 46–53. 188 Order of 7 December 2004 in Case T-251/00 DEP Lagardère and Canal+ v Commission [EU:T:2004:353] para 26. 189 See, eg Order of 13 February 2008 in Case T-310/00 DEP Verizon v Commission [EU:T:2008:32] para 44: ‘The [General Court] considers that those hourly rates seem excessive in the present case and that even a lower rate of around EUR 300 per hour can be regarded as appropriate only as remuneration for the services of a professional with a particularly large amount of experience, able to work very efficiently and fast.’ See also Order of 26 January 2006 in Joined Cases T-79/96 DEP and T-260/97 DEP Camar v Council and Commission [EU:T:2006:25] para 67.

Recoverable Costs 693 Number of lawyers. In principle, the remuneration of only one agent, adviser or lawyer will be deemed ‘necessary’ under the Rules of Procedure190 (cf para 5.424) and, therefore, recoverable. It is possible, however, depending on the complexity of the case, that the fees of a number of lawyers may be considered ‘necessary’.191

5.429

Importance of the main case in terms of EU law. Where the main case is important in terms of the development of EU law, a larger part of the lawyers’ fee may be recoverable. This factor may be equated with the novelty and objective importance of a particular case. The EU Courts have accepted that a case is of special importance where the ‘interest of the case exceeds the personal interest of the applicants’ or could be considered as a ‘pilot case’,192 or where it raises new questions concerning the rights of defence.193 The EU Courts have also taken into account whether a case could ‘clarify, in furtherance of [their] earlier case law’,194 certain issues. If a case is heard by a larger than usual formation (eg a grand or enlarged Chamber of the General Court, or a Grand Chamber of the Court of Justice), this will generally indicate that a case is of special importance.195

5.430

Degree of difficulty or complexity of the main case. A high degree of the difficulty or complexity of the main case is also a reason for allowing the recovery of a larger part of the successful party’s expenses. This criterion is often linked to the novelty of the main case. Cases that give rise to new questions of law will generally be considered as more complex than those which only concern points of law that have already been settled.196 However, even in complicated cases, the EU Courts may not grant a greater level of recovery in terms of the hourly rate if it has already taken the complexity of the issues into account when determining the appropriate number of hours to be spent on the case.197 Situations in which the EU Courts have accepted that a case was particularly complicated have arisen: where there was a need to deal with submissions from multiple opposing parties; where the economic complexity of the case was such that expert reports were required;198 and where multiple cases were required to address the issue in question.199

5.431

Economic interest of the parties. The higher the degree of economic interest, the more likely it is that the EU Courts will determine that it is reasonable to grant recovery of a higher proportion of the fees of the successful party’s lawyers.200 In making such an assessment, the EU Courts

5.432

190 CJ RoP, Art 144; GC RoP, Art 140. 191 Order of 8 March 1995 in Case T-2/93 DEP Air France v Commission [EU:T:1995:45] para 17; Order of 6 January 2004 in Case C-104/89 DEP Mulder v Council [EU:C:2004:1] para 62; Order of 28 June 2004 in Case T-342/99 DEP Airtours v Commission [EU:T:2004:192] paras 43–44; Order of 13 February 2008 in Case T-310/00 DEP Verizon v Commission [EU:T:2008:32] para 52; Order of 8 April 2014 in Case T-12/12 DEP Laboratoires CTRS v Commission [EU:T:2014:231] para 34; Order of 9 June 1993 in Case T-78/89 DEP PPG Industries Glass v Commission [EU:T:1993:45] para 40; Order of 15 March 2000 in Case T-337/94 DEP Enso-Gutzeit v Commission [EU:T:2000:76] para 21. 192 Order of 6 January 2004 in Case C-104/89 DEP Mulder v Council [EU:C:2004:1] para 53; Order of 29 November 2012 in Case T-164/12 R Alstom and Others v Commission [EU:T:2012:637]. 193 Order of 11 January 2008 in Case C-105/04 P-DEP CEF City Electrical Factors and CEF Holdings v Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie [EU:C:2008:8] para 29. 194 Order of 13 February 2008 in Case T-310/00 DEP Verizon v Commission [EU:T:2008:32] para 36. 195 Order of 13 February 2008 in Case T-310/00 DEP Verizon v Commission [EU:T:2008:32] para 37; Order of 8 May 2014 in Case T-452/04 DEP Éditions Odile Jacob v Commission [EU:T:2014:308] para 28. 196 Order of 15 September 2004 in Case T-178/98 DEP Fresh Marine v Commission [EU:T:2004:265] para 33; Order of 21 January 2015 in Case T-110/12 DEP Iranian Offshore Engineering & Construction v Council [EU:T:2015:61] paras 16 and 19. 197 Order of 7 December 2004 in Case T-251/00 DEP Lagardère and Canal+ v Commission [EU:T:2004:353] para 26. 198 Order of 6 January 2004 in Case C-104/89 DEP Mulder v Council [EU:C:2004:1] paras 54–59. 199 Order of 24 January 2014 in Case T-210/02 RENV DEP British Aggregates v Commission [EU:T:2014:65] para 38. 200 Order of 21 January 2015 in T-110/12 DEP Iranian Offshore Engineering & Construction v Council [EU:T:2015:61] para 33; Order of 20 November 2012 in Case T-121/09 DEP Al Shanfari v Council and Commission [EU:T:2012:607] para 20.

694 Costs and Legal Aid will analyse not only whether the case is of particular economic interest for the individual party concerned, but also how the party’s economic interest compares to the level of economic interest that is normally at stake in similar proceedings.201 5.433

Interveners. As a general rule, the main party’s work, in whose support the intervener joins the proceedings, significantly assists the intervener in preparing his submissions.202 Furthermore, as the intervention is subordinate to the main proceedings, save in exceptional circumstances, the intervention will not be considered as presenting as many difficulties as preparing the submissions by the main parties.203 As such, the fees recoverable by an intervener will generally not exceed the fees that are recoverable by the main party who was successful in the main case204 (for exceptions, see para 5.310). Furthermore, whether the costs of an intervener’s representative are recoverable at all is dependent on the extent to which the representative raises ‘autonomous and useful observations’.205 (ii) Travel and Subsistence Expenses

5.434

Notion. Travel and subsistence expenses incurred by agents, advisers and lawyers for attending the oral hearing in Luxembourg will generally be recoverable.206 Where an EU institution or body is represented by one of its officials, it may still recover the official’s travel and subsistence expenses even though the official’s remuneration is not recoverable.207

5.435

Evidence substantiating claims. Any expenses claimed should be accompanied by objective evidence. If the claiming party fails to provide sufficient detail in respect of the travel and subsistence costs incurred, the EU Courts may award a lump sum in an amount that they consider to be reasonable in respect of such expenses.208 Furthermore, travel and subsistence costs, even if accompanied by proof of having been incurred, will only be recoverable to the extent that they are reasonable. For example, costs claimed for the attendance of two lawyers at the oral hearing might not be recoverable if the attendance of both of them is not necessary.209 Travel expenses incurred other than for attending the oral hearing will not generally be recoverable

201 Order of 17 June 2011 in Case T-234/06 DEP Klosterbrauerei Weissenohe [EU:T:2011:290] para 12; Order of 6 March 2014 in Case T-544/11 DEP Spectrum Brands (UK) v OHMI – Philips (STEAM GLIDE) [EU:T:2014:147] para 15; Order of 19 September 2001 in Case T-64/99 DEP UK Coal v Commission [EU:T:2001:217] para 31. 202 Order of 4 February 1993 in Case C-191/86 DEP TEC v Council [not reported]; Order of 8 November 2001 in Case T-65/96 DEP Kish Glass v Commission [EU:T:2001:261] para 20. 203 Order of 22 March 1999 in Case T-97/95 DEP Sinochem v Council [EU:T:1999:62] paras 17–18. 204 Order of 22 March 1999 in Case T-97/95 DEP Sinochem v Council [EU:T:1999:62] paras 17–18; Order of 7 March 2000 in Case T-2/95 DEP Industries des poudres sphériques v Council [EU:T:2000:57] para 23; Order of 11 January 2008 in Case C-105/04 P-DEP CEF City Electrical Factors and CEF Holdings v Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie [EU:C:2008:8]. 205 Order of 8 March 1995 in Case T-2/93 DEP Air France v Commission [EU:T:1995:45] para 19. 206 Order of 17 September 1981 in Case C-24/79 DEP Dominique Noëlle Oberthür v Commission [EU:C:1981:207] paras 2–3; Order of 12 December 1997 in Case T-167/94 DEP Nölle v Council and Commission [EU:T:1997:195] para 21. 207 Order of 21 June 1979 in Case C-126/76 DEP Firma Gebrüder Dietz v Commission [EU:C:1979:158]; Order of 20 January 2014 in Case T-186/11 DEP Schönberger v Parliament [EU:T:2014:40] para 21. 208 See, eg Order of 15 September 2004 in Case T-178/98 DEP Fresh Marine v Commission [EU:T:2004:265] para 41; Order of 18 March 2005 in Case T-243/01 DEP Sony Computer Entertainment Europe v Commission [EU:T:2005:113] para 34. 209 Order of 3 September 2010 in Case T-455/05 DEP Componenta v Commission [EU:T:2010:345] para 61; Order of 8 April 2014 in Case T-12/12 DEP Laboratoires CTRS v Commission [EU:T:2014:231] para 55; Order of 1 July 1981 in Case C-238/78 Ireks-Arkady v European Economic Community [EU:C:1981:154].

Recoverable Costs 695 unless the party can demonstrate why such travel was necessarily incurred for the purpose of the proceedings.210 (iii) Miscellaneous Expenses Office expenses. The EU Courts have previously held that additional office expenses,211 such as postal, telephone and photocopying charges212 or translation costs,213 are also potentially recoverable if the claiming party provides details of such expenses, including the link to the proceedings and relevant evidence that such expense has been incurred.214

5.436

Litigation insurance. In its order in Elder,215 the General Court held that payment of a litigation insurance premium guaranteeing payment of the opposing party’s costs, even if incurred for the purposes of proceedings before the EU Courts, is not, as a rule, considered to be indispensable and, therefore, does not generally qualify as a recoverable cost. Such insurance premiums could potentially qualify as recoverable costs only if the claiming party is able to demonstrate that it would not have been able to bring the proceedings without such a policy.

5.437

Expenses linked to providing a bank guarantee. In situations where the Commission imposes a fine or other penalties under the TFEU or Euratom Treaty, the Commission may be willing to stay execution of the decision imposing the penalty or fine if the debtor brings an action before the EU Courts challenging the decision and either provisionally pays the amounts concerned or provides a financial guarantee acceptable to the accounting officer. If the debtor chooses to provide a financial guarantee, rather than pay the fine or penalty, the EU Courts have held that any expenses incurred in providing such guarantee cannot be regarded as ‘expenses incurred for the purpose of the proceedings’ and, therefore, are not recoverable.216

5.438

Value added tax (VAT). If the party applying for taxation of costs is a taxable person, it is entitled to recover from the tax authorities VAT paid on goods and services purchased by it. That being the case, it may not claim payment under the Rules of Procedure of amounts corresponding to VAT on lawyers’ fees and other litigation costs.217 On the other hand, where the applicant is

5.439

210 Order of 31 March 2011 in Joined Cases T-5/02 DEP and T-80/02 DEP Tetra Laval v Commission [EU:T:2011:129] para 81; Order of 2 June 2009 in Case T-47/03 DEP Sison v Council [EU:T:2009:166] para 52; Order of 8 April 2014 in Case T-12/12 DEP Laboratoires CTRS v Commission [EU:T:2014:231] para 55; Order of 17 September 1981 in Case C-24/79 DEP Dominique Noëlle Oberthür v Commission [EU:C:1981:207] paras 2–3. 211 Costs incurred as a result of a party’s internal organisation, however, are not recoverable (see Order of 22 March 1999 in Case T-97/95 DEP Sinochem v Council [EU:T:1999:62] para 17; Order of 12 December 2008 in Case T-417/05 DEP Endesa v Commission [EU:T:2008:570] para 47). 212 Case C-238/78 Ireks-Arkady v European Economic Community [EU:C:1981:154]. 213 Order of 8 March 1995 in Case T-2/93 DEP Air France v Commission [EU:T:1995:45], in which the General Court considered that translation costs necessitated by the party being obliged to intervene using the language of the case (French) rather than English, were ‘necessarily incurred for the purpose of the proceedings’ and, therefore, recoverable. 214 Order of 23 March 2012 in Case T-498/09 P-DEP Kerstens v Commission [EU:T:2012:147] para 42. The EU Courts can also determine a lump sum that they consider constitutes an acceptable amount for the expenses incurred: Order of 26 January 2006 in Joined Cases T-79/96 DEP and T-260/97 DEP Camar v Council and Commission [EU:T:2006:25] para 71; Order of 4 February 2004 in Case C-77/99 DEP Commission v Oder-Plan Architektur and Others [EU:C:2004:68] para 23. 215 Order of 27 November 2000 in Case T-78/99 DEP Elder v Commission [EU:T:2000:274] para 18. 216 Order of 20 November 1987 in Case C-183/83 DEP Krupp Stahl v Commission [EU:C:1987:501] para 10; Order of 14 July 1994 in Case T-77/92 Parker Pen v Commission [EU:T:1994:85] para 10. See also Case C-282/05 P Holcim v Commission [EU:C:2007:226] and Case C-516/06 P Commission v Ferriere Nord [EU:C:2007:763], which also clarified the case law on bank guarantees in the context of damages claims outside of taxation proceedings. 217 Order of 28 June 2004 in Case T-342/99 DEP Airtours v Commission [EU:T:2004:192] paras 78–79.

696 Costs and Legal Aid not entitled to deduct VAT, it may be part of the recoverable damage.218 Even then, VAT can be claimed only where the lawyers explicitly state the VAT amount in their bill to the clients.219

5.10.7. Costs in Preliminary Rulings 5.440

General principle – the referring court decides on costs. With respect to the costs incurred by the parties to the main case giving rise to a preliminary ruling, Article 102 of the CJ RoP provides that ‘it shall be for the referring court or tribunal to decide as to the costs of the preliminary ruling’.

5.441

National law applies for determining the allocation and quantification of costs. With respect to the party that should bear those costs and to the level of costs recoverable, the Court of Justice has confirmed that such determination is to be made in application of the national law of the referring court.220 The referring judge remains, however, subject to the general EU law principle of effectiveness. Consequently, the method adopted for determining which party bears the cost of the preliminary reference and the level of those costs must not be more stringent than in the case of similar national remedies.221

5.442

Costs incurred by the Court of Justice, other EU institutions or Member States. In contrast, the Court of Justice has confirmed that any costs of the preliminary ruling proceedings that are incurred by the Court itself, by other EU institutions or by any Member States that have submitted observations on the preliminary reference are borne by the EU or the relevant Member States and are not recoverable.222 An exception to this general principle appears to apply where the EU institution in question is a party to the main proceedings before the national court that gave rise to the preliminary reference. In this case, where the EU institution in question submits observations in its capacity as a party to the national proceedings, it will be up to the national court to determine whether the EU institution is entitled to recover its costs in accordance with national law.223 It is reasonable to presume that these principles also apply to bodies, offices and agencies of the EU.

5.10.8. Legal Aid 5.443

General. In order to ensure access to justice, both the CJ RoP and the GC RoP contain provisions foreseeing the possibility of granting legal aid. In order to receive legal aid, the party must lodge an application before the relevant Court. That application will be treated as a separate case, the number of which includes the letters ‘AJ’, which stand for ‘aide juridictionnelle’ (‘legal aid’

218 If a party is otherwise entitled to deduct VAT, it is up to that party to provide evidence that it is not entitled to deduct the VAT associated with the costs claimed (Order of 27 February 2020 in Case T-586/11 DEP Sal Oppenheim v Commission [not reported]. 219 Order of 11 January 2008 in Case C-105/04 P-DEP CEF City Electrical Factors and CEF Holdings v Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie [EU:C:2008:8] para 43. 220 Case C-62/72 Bollmann [EU:C:1973:24] para 6. 221 Case C-472/99 Clean Car Autoservice [EU:C:2001:663] para 32. 222 Case C-13/61 Kledingverkoopbedriff De Geus en Uitdenbogerd [EU:C:1962:11]; Case C-62/72 Bollmann [EU:C:1973:24]. 223 Case C-109/83 Eurico v Commission [EU:C:1984:321]; Case C-232/84 Commission v Tordeur [EU:C:1985:392]; Case C-105/80 Hugues Desmedt v Commission [EU:C:1981:149].

Legal Aid 697 in French). The Courts will decide on the application in an order.224 With respect to the General Court, the conditions for the granting of legal aid are set out at Articles 146–150 of the GC RoP. The equivalent provisions for the Court of Justice can be found in Articles 115–118 of the CJ RoP for preliminary references and Articles 185–189 of the CJ RoP for appeals. Since the Court of Justice does not have competence to hear direct actions from individual applicants, the CJ RoP does not contain any provisions foreseeing legal aid in respect of direct actions.

5.10.8.1. Substantive Rules Applicable to the Granting of Legal Aid Wholly or in part unable to meet the costs of the proceedings. Legal aid will be granted to a party to the main proceedings who can demonstrate that he is wholly or in part unable to meet the costs of the proceedings before the relevant EU Court. A party’s ability to meet those costs is determined on the basis of objective factors, including the party’s revenue, capital and family situation.225 It is up to the applicant for legal aid to provide all of the necessary information and documents to make it possible for the Court to assess the applicant’s financial position.226

5.444

Persons entitled to apply for legal aid. Although legal aid is principally intended to assist natural persons, the Court of Justice has previously interpreted the principle of a right to a fair trial, enshrined in Article 47 of the Charter of Fundamental Rights, as meaning that it must not be impossible for legal persons to be able to benefit from legal aid.227

5.445

Relevance of the admissibility of the underlying action. In assessing whether to grant legal aid, the Courts will have regard to whether the action or appeal is manifestly unfounded or inadmissible. If so, the application for legal aid will be rejected.228

5.446

Scope of costs covered by legal aid. The purpose of any legal aid granted is to cover the costs involved in legal assistance and representation by a lawyer in the proceedings before the Court of Justice or the General Court.229 Such costs will include those incurred in preparing written submissions and costs incurred in relation to the party’s legal representative preparing for and attending an oral hearing. Legal aid may also be granted to cover expenses incurred as a result of measures of inquiry ordered by the Courts.230

5.447

Establishing the amount to be paid. In proceedings before the General Court, the order granting legal aid may specify the amount to be paid to the lawyer instructed to represent the person concerned or fix a limit which the lawyer’s disbursements and fees may not, in principle, exceed. That order may also provide for a contribution to be made by the recipient of legal aid, having regard to his financial situation.231

5.448

224 See, eg Order of 23 May 2019 in Case T-630/18 AJ OP v Commission [EU:T:2019:365]; Order of 10 November 2015 in Case C-477/15 AJ Copernicus-Trademarks v OHIM [not reported]. 225 Order of 12 September 2013 in Case T-179/13 AJ CW v Council [EU:T:2013:519]; Order of 18 July 2014 in Case T-35/14 P-AJ Solberg v OEDT [EU:T:2014:697]. 226 CJ RoP, Arts 115(2) and 185(2); GC RoP, Art 147(3). With respect to preliminary references, if the applicant has already obtained legal aid before the referring court, the applicant must produce the decision of that court and specify what is covered by the sums already granted (CJ RoP, Art 115(3)). 227 Case C-279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft [EU:C:2010:811] para 59. Art 94(2) of the old GC RoP of 1991 made specific reference to ‘natural persons’. The reference to ‘natural’ has been removed from the new GC RoP of 2015. 228 CJ RoP, Art 187(1); GC RoP, Art 146(2). Nothing is provided for with respect to preliminary references. 229 CJ RoP, Art 117; CJ RoP, Art 188(1); GC RoP, Art 149(1). 230 Order 23 September 1987 in Case C-43/83 De Naeyer v Commission [EU:C:1987:382] para 16. 231 GC RoP, Art 148(7).

698 Costs and Legal Aid 5.449

Effect of the outcome of the case on the Courts’ ability to recover legal aid. If the recipient of legal aid is successful in the main action for the purposes of which legal aid was granted and the General Court orders another party to pay the recipient party’s costs, that other party shall be required to refund to the cashier of the General Court any sums advanced by way of aid. If, however, the recipient of the legal aid is unsuccessful in the main action, the General Court may, in ruling as to costs in the decision closing the main proceedings, if equity so requires, order that one or more parties should bear their own costs or that those costs should be borne, in whole or in part, by the cashier of the General Court by way of legal aid. If the recipient of legal aid is ordered to bear his own costs, the General Court will fix the amount of the costs to be paid to the party’s legal representative, and this amount will be paid by the cashier of the General Court.232

5.450

Possibility of withdrawing legal aid. Both the General Court and the Court of Justice are entitled to withdraw a grant of legal aid if the circumstances that led to the grant of the legal aid alter during the proceedings.233

5.10.8.2. Procedure Relating to Applications for Legal Aid 5.451

Application for legal aid. An application for legal aid can be made at any time, either before or after having commenced the main proceedings.234 Under the GC RoP, if the application for legal aid is made before the action has been lodged with the General Court, that application must briefly state the subject matter of the proposed action, the facts of the case and the arguments in support of the action, together with the necessary supporting documents.235 If the information and the supporting documents provided in the application (concerning, inter alia, the applicant’s financial situation) are insufficient, the application for legal aid is dismissed as inadmissible.236 Under the CJ RoP, if the application for legal aid is made prior to the appeal, that application must briefly state the subject of the appeal.237 Under both the GC RoP and the CJ RoP, an application for legal aid does not need to be submitted by a lawyer.238 However, if the application is lodged by the party’s legal representative, the standard documentation proving the representative’s ability to act on the party’s behalf needs to be submitted together with the application for legal aid.239

5.452

Specific legal aid form for actions before the General Court. Applications for legal aid before the General Court must be submitted using the designated application form, which the General Court has published on its website and in the Official Journal. Failure to use the form will result in the application not being taken into consideration.240 232 GC RoP, Art 149(2)–(3) and (5). The CJ RoP do not contain such detailed rules in respect of how the costs in the case concerning a recipient of legal aid will be allocated and made good. With respect to appeals, CJ RoP, Art 188(2) states that: ‘In its decision as to costs the Court may order the payment to the cashier of the Court of sums advanced as legal aid.’ With respect to preliminary references, as set out above, it will be for the referring court to determine the question of which party bears the costs. CJ RoP, Art 117 simply states that ‘the cashier of the Court [of Justice] shall be responsible for costs involved in the assistance and representation of the applicant before the Court [of Justice]’. 233 CJ RoP, Arts 118 and 189; GC RoP, Art 150. 234 CJ RoP, Art 115(1) and 185(1); GC RoP, Arts 146(1) and 147(1). For detailed guidance, see GC PR, paras 120–121 and 198–207. 235 GC RoP, Art 147(4). 236 See, eg Order of 23 May 2019 in Case T-630/18 AJ OP v Commission [EU:T:2019:365]. 237 CJ RoP, Art 186(1). It is understood that the facts of the case and the supporting documents have already been submitted in the first instance proceedings. 238 CJ RoP, Art 186(2); GC RoP, Art 147(2). 239 GC RoP, Art 147(5)–(6). The CJ RoP do not contain any specific provisions in this regard, but, presumably, the same applies by virtue of the general rules on representation (cf paras 4.133–4.134). 240 GC RoP, Art 147(2).

Legal Aid 699 Effect on time limits for lodging the main action or appeal. An application for legal aid will suspend the time limit prescribed for the bringing of an action or appeal until the date of service of the order making a decision on that application.241

5.453

Procedure in the General Court for taking decisions on whether to grant legal aid. Before the General Court, following receipt of an application for legal aid, the President242 will prescribe a time limit within which the other main party may submit observations, unless the action is manifestly inadmissible or unfounded (cf para 5.446). Decisions on whether to grant legal aid shall be taken by the President by way of order.243

5.454

Designation of legal representation. In the order granting legal aid, the General Court must designate the lawyer to represent the party. If the party has not named a legal representative in the application for legal aid, or subsequently, or if the Court deems the named representative to be ‘unacceptable’, the Court will send a copy of the application and order granting legal aid to the competent national authorities. Following receipt of suggestions made by the party concerned and/or the competent national authority, the lawyer instructed to represent the party will ultimately be appointed by the General Court by way of order.244

5.455

Procedure before the Court of Justice for taking decisions on whether to grant legal aid. Before the Court of Justice, the President will assign the application to the relevant Judge-Rapporteur. A decision will be taken by a Chamber of three Judges, including the President and the JudgeRapporteur, after hearing the Advocate General.245

5.456

Refusal must be reasoned, no appeal against any decision on legal aid. Any order refusing legal aid must state the reasons on which it is based.246 Decisions taken by the General Court with respect to legal aid cannot be appealed.247

5.457

241 CJ RoP, Art 186(3); GC RoP, Art 147(7). 242 cf para 1.61. 243 GC RoP, Art 148(1)–(2). 244 GC RoP, Art 148(4)–(6). 245 CJ RoP, Art 116(1)–(2); CJ RoP, Art 187(1). If the Judge-Rapporteur is not a member of a Chamber of three Judges, the decision will be taken by a Chamber of five Judges (CJ RoP, Art 116(3); CJ RoP, Art 187(2)). 246 CJ RoP, Art 116(4); CJ RoP, Art 187(3); GC RoP, Art 148(3). 247 GC RoP, Arts 148(8), 149(2) and 150(2).

5.11. Applications Relating to Judgments and Orders [written by Viktor Bottka1] 5.458

Requests that can be made after a final judgment or order closing the case. Following the issuing of final decisions of the Courts, there are still some requests that can be made in connection with them. These are the request for rectification, third-party proceedings, request for interpretation and request for revision. The common procedural aspect for these is that, except for the request for revision, these applications are normally assigned to the Judge-Rapporteur and to the formation of the Court that gave the final decision in the case at issue. If one or more Judges are prevented from acting (ie their term ended), then the request is assigned to a new formation of the Court.2

5.459

Rectification. This procedure serves to correct clerical mistakes, errors in calculation and obvious inaccuracies in the judgment or order closing the case. Such errors may be rectified by the Courts of their own motion,3 or at the request of a party made within two weeks after delivery of the judgment or service of the order, this time limit being extended by 10 days on account of distance. Where the request for rectification concerns the operative part or one of the grounds constituting the necessary support for the operative part, the parties may submit written observations within the time limit prescribed by the President.4 Rectifications are decided by way of an order.5 The case number is the same as that of the original case, to which the letters ‘REC’ are added, which stand for ‘rectification’.

5.460

Practice. In practice, rectification requests are not accepted for merely different formulations preferred by a party or for changes to the ruling on substance,6 such as raising an omission of ruling on a plea.7 Instead, a rectification is usually done for incorrect translations or clerical errors in one or more language versions of a judgment.8 Occasionally, incorrect factual statements in a judgment can be removed through a rectification.9 If a judgment is unclear or contradictory, a rectification is possible,10 but an appeal or a request for interpretation may have more chances

1 Member of the Legal Service, European Commission. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the European Commission. 2 CJ RoP, Art 153; GC RoP, Art 162. 3 See, eg Order of 21 November 2017 in Case C-467/15 P-REC Commission v Italy (State aid for milk producers) [EU:C:2017:904]. 4 cf paras 1.36 and 1.61. 5 CJ RoP, Art 154; GC RoP, Art 164. 6 Order of 1 July 2016 in Joined Cases T-479/11 REC and T-157/12 REC France and IFPEN v Commission [EU:T:2016:419] paras 8–9. 7 See, eg Order of 15 June 2017 in C-637/13 P-REC Laufen Austria v Commission [EU:C:2017:481] paras 6–8. 8 See, eg Order of 12 July 2017 in Case C-180/16 P-REC Toshiba Corp. v Commission [EU:C:2017:559]; Order of 8 November 2017 in Case C-329/15 REC ENEA [EU:C:2017:859]; Order of 14 March 2018 in Case T-423/14 REC Larko v Commission [EU:T:2018:151]. 9 Order of 7 September 2016 in Case T-669/14 REC Trioplast Industrier v Commission (plastic bags cartel) [EU:T:2016:550] para 8. 10 See Order of 10 November 2015 in Joined Cases T-389/10 REC and T-419/10 REC SLM and Ori Martin v Commission [EU:T:2015:855], where the joint liability was not correctly spelled out inter alia in the operative part.

Applications Relating to Judgments and Orders 701 of success. A rectification procedure may run in parallel with an appeal; however, it may be suspended until the end of the appeal procedure. Third-party proceedings. This rarely used procedure relates to the right of Member States, institutions, bodies, offices and agencies of the Union and any other natural or legal persons, under conditions determined by the Rules of Procedure,11 to institute third-party proceedings to contest a judgment or order rendered without their being heard, where the judgment is prejudicial to their rights. Apart from formal requirements (eg identifying the contested decision), the Rules of Procedure require that the application must be made against all the parties to the original case, and it must be submitted within two months of publication of the contested judgment or order in the Official Journal. The Court may, on application by the third party, order a stay of execution of the contested decision.12 The contested decision shall be varied on the points on which the submissions of the third party are upheld. The case number is the same as that of the original case, to which the letters ‘TO’ are added, which stand for ‘tierce opposition’ (‘third-party proceedings’ in French).

5.461

Application initiating third-party proceedings inadmissible if the applicant could have intervened. It is important to note that an application initiating third-party proceedings is only admissible where the applicant was unable to take part in the original case. Therefore, if the applicant could have discerned his interest in the original case from the notice on its initiation published in the Official Journal (cf para 4.200) and had the standing to intervene in that case, his application initiating third-party proceedings will be dismissed as inadmissible (cf para 5.234).13 The requesting party must set out, in the application, the reasons for which he was not able to take part in the original case.14

5.462

Interpretation. If the meaning or scope of a judgment or an order is in doubt, the issuing EU Court shall construe or clarify it on application of a party to the case or an EU institution establishing an interest therein.15 Such an application may be made within two years after the date of delivery of the judgment or the service of the order. The formal requirement for this application is to identify the judgment and the passages of which interpretation is sought, and to submit it against all the parties to the original case. The parties are given an opportunity by the Courts to submit their observations.16 In accordance with the case law, an application for interpretation of a judgment must, in order to be admissible, concern the operative part of the judgment in question, and the essential grounds thereof, and seek to resolve an obscurity or ambiguity that may affect the meaning or scope of that judgment, insofar as the Court was required to decide the particular case before it. It is therefore inadmissible where it relates to matters not decided by the judgment concerned or seeks to obtain from the Court in question an opinion on the application, implementation or consequences

5.463

11 Statute, Art 42; CJ RoP, Art 157; GC RoP, Art 167. 12 See, eg Case C-506/09 P Portugal v Transnáutica [EU:C:2012:156] paras 34–35, which note that at the same time as lodging the appeal, Portugal instituted third-party proceedings before the General Court to contest the judgment under appeal. In that case, the Court of Justice granted the application to stay the appeal proceedings. Then the General Court dismissed the application initiating third-party proceedings by Order of 6 September 2010 in Case T-385/05 TO Portugal v Transnáutica and Commission [EU:T:2010:349]. 13 Joined Cases C-9/60 and C-12/60 TO Belgium v Vloeberghs and High authority [EU:C:1962:25]; Order of 26 March 1992 in Case T-35/89 TO I Ascasibar Zubizarreta and Others v Alessandro Albani and Others [EU:T:1992:47]. 14 CJ RoP, Art 157(1)(c); GC RoP, Art 167(1)(c). 15 Statute, Art 43; CJ RoP, Art 158(1); GC RoP, Art 168(1). 16 CJ RoP, Art 158; GC RoP, Art 168.

702 Applications Relating to Judgments and Orders of its judgment.17 In this type of proceedings, the case number is the same as that of the original case, to which the letters ‘INTP’ are added, which stand for ‘interpretation’. 5.464

Revision. This procedure is used to amend judgments in the light of newly discovered pre-existing facts. In accordance with Article 44 of the Statute, an application for revision of a decision of the EU Courts may be made only on discovery of a fact which is of such a nature as to be a decisive factor and which, when the judgment was delivered or the order served, was unknown to the relevant Court and to the party claiming the revision. Without prejudice to the limitation period of 10 years prescribed in Article 44(3) of the Statute (cf para 4.78), an application for revision shall be made within three months of the date on which the facts on which the application is founded came to the applicant’s knowledge.18 The application for revision has to identify the judgment and the passages which are to be revised, as well as the new facts and evidence. It must also substantiate that the above time limits have been observed. The parties’ views are requested before a judgment is issued on the revision. According to settled case law, revision is not an appeal procedure but an exceptional review procedure that allows the authority of res judicata attaching to a final judgment to be called into question on the basis of the findings of fact relied upon by the Court. Revision presupposes the discovery of elements of a factual nature which existed prior to the judgment and which were unknown, at that time, to the Court that delivered the judgment as well as to the party applying for revision, and which, had the Court been able to take them into consideration, could have led it to a different determination of the proceedings. Moreover, the conditions governing the admissibility of an application for revision of a judgment are to be interpreted in the light of the exceptional nature of the revision procedure.19

5.465

Summary dismissal in a reasoned order. The amendments of the CJ RoP of November 201920 introduced a new provision on the summary dismissal of applications explained in this chapter. Under Article 159a of the CJ RoP, where a request or an application for rectification, third-party proceedings, interpretation or revision is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court of Justice may, at any time, having heard the Judge-Rapporteur and the Advocate General, decide to dismiss it, in whole or in part, by reasoned order.

17 Order of 14 July 1993 in Case T-22/91 INT Raiola-Denti and Others v Council [EU:T:1993:64] para 6 and case law cited. In Case T-348/05 INTP JSC Kirovo-Chepetsky Khimichesky Kombinat v Council [EU:T:2009:261], the applicant obtained an interpretation of the judgment in the main proceedings to the effect that the contested anti-dumping regulation was annulled only insofar as it concerned the applicant. Similarly, in Case T-1/08 INTP Buczek Automotive v Commission [EU:T:2015:653], the General Court interpreted its judgment in the main proceedings as annulling an article in a State aid decision with erga omnes effect. 18 Statute, Art 44; CJ RoP, Art 159; GC RoP, Art 169. 19 Many such requests are inadmissible. For example, the claim about misinterpretation of evidence in the administrative file was not admitted in Order of 10 July 2014 in Case T-82/08 REV I Guardian Industries and Guardian Europe v Commission [EU:T:2014:693] paras 20–23. 20 Amendments of the CJ RoP of 26 November 2019 (OJ 2019 L 316, p. 103).

5.12. Requirements as to Enforcement [written by Viktor Bottka1] Enforcement of judgments. Articles 280 and 299 TFEU state that judgments of the EU Courts are enforceable under the same conditions as the acts of the Council, the Commission or the European Central Bank that impose a pecuniary obligation on persons other than States. Enforcement is governed by the rules of civil procedure in force in the State in whose territory it is carried out. The order for its enforcement shall be appended to the decision, without any formality other than verification of the authenticity of the decision, by the national authority that the government of each Member State shall designate for this purpose.2

5.466

Practice. The judgment is notified to each party, and a simple request by the successful party may be accepted by the other party as a basis for satisfying the outstanding claims. In the case of contestation, the assistance of the national judiciary and/or bailiffs is required. Of course, when the action is withdrawn, there is no basis to enforce any judgment; however, the underlying settlement between the parties may require fulfilment or enforcement.

5.467

Ways of enforcement. The way of enforcing a judgment depends on the type of action. For instance, in an action for annulment, if the validity of the EU act is ultimately upheld, the enforcement of the judgment removes the last possible obstacle from the enforcement of that EU act.3 By contrast, if the action for annulment or the appeal leads to the partial or full invalidity of the act, the issuing EU institution or body needs to draw the appropriate consequences (cf para 3.330 et seq). That may mean the adoption of a new act (unless prevented by ne bis in idem, prescription or other obstacles), but in any event, eg in competition cases, will entail the return of any previously collected fines. In an action for failure to act, the institution or body that is unsuccessful as defendant must implement the judgment by defining its position within a reasonable time. The action for damages may lead to the consequence of the institution or body paying the definitive damages (normally that would not require the intervention of a national court, but it is possible for the winning party to enforce the judgment in that manner). The legal costs may be claimed in all kinds of actions (cf para 5.407 et seq), and may occasionally be formally enforced by the parties.

5.468

1 Member of the Legal Service, European Commission. The views expressed in this chapter are those of the writer and may not be regarded as stating an official position of the European Commission. 2 One such designated authority is the permanent representation to the EU of each Member State, to which the Commission takes a copy of the decision imposing a pecuniary sanction unless its operation is suspended through interim measures. That permanent representation attaches a stamp of authenticity, which facilitates the enforcement through the national judicial system. For cartel decisions imposing a fine, normally DG BUDGET would request from the addressee company, by letter, the payment of the fine or its coverage by a guarantee by the due date. If such a reminder does not induce compliance, the Commission services turn to the national judicial system to enforce the fine. In the context of enforcement of fines, the Commission often needs to enter its claim in bankruptcy or liquidation proceedings of the addressee company. 3 Since an action before the EU Courts has no suspensory effect (Art 278 TFEU), enforcement of the challenged Union act may take place even before the definitive judgment is issued. If suspension of operation of the contested act is granted as an interim measure, the judgment of the relevant Court means the end of the suspension and the act may be enforced.

704 Requirements as to Enforcement 5.469

Suspending enforcement of a judgment. While, under Article 60 of the Statute, an appeal does not suspend the enforcement of the judgment (cf para 3.585),4 such suspension may be achieved through interim measures requested from the Court of Justice in the appeal procedure (cf Chapter 5.2. Interim Measures). In actions for annulment, besides requesting the suspension of operation of the contested act, there are other means of delaying the enforcement of the latter. For example, for Commission decisions imposing a fine, undertakings may request the Accounting Officer of the Commission to adopt a payment plan5 allowing for payment by instalments, usually in exchange for providing adequate security for the outstanding amount and with the obligation to pay interest for the delay. In certain situations, the issuing institution may amend its own act6 or may refrain from enforcing it, even in the absence of interim measures requiring it to do so. Finally, in accordance with Article 299(4) TFEU, the enforcement of Union acts or judgments may be suspended only by a decision of the EU Courts. However, the national courts of the Member State concerned have jurisdiction over complaints that enforcement is being carried out in an irregular manner and, in that context, they may also request a preliminary ruling from the Court of Justice.7

4 With the exception of the situation where the first instance judgment annuls a regulation. In that case, the appeal suspends the effects of the contested first instance judgment (cf para 3.586). Furthermore, special rules apply to appeals against judgments or orders issued by the General Court in intellectual property cases: the appeal suspends the effects of the contested European Union Intellectual Property Office or the Community Plant Variety Office decision (cf para 3.587). 5 See Art 104 [Additional time for payment] of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1). 6 See, eg the information note of 12 June 2010 [SEC(2010)737/2] on inability to pay under para 35 of the 2006 Fining Guidelines and payment conditions pre- and post-decision finding an infringement and imposing fines (https://ec.europa. eu/competition/antitrust/legislation/fines.html). 7 Order of 19 November 2013 in Case T-42/13 1. garantovaná v Commission (calcium carbide cartel) [EU:T:2013:621] paras 38–39. That case concerned a Commission letter claiming interest payments on the fine for the time the suspension of operation applied, following the rejection of the action for annulment in the main case. In that case, the action for annulment against such a letter was inadmissible as the interest followed from Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1). However, the legality and amount of the interest could be challenged in the national enforcement procedure.

INDEX Aarhus Convention, 3.685 abuse of dominant position, 3.120, 3.299, 3.313, 3.314, 3.120 accelerated procedure, see expedited procedure access to documents, 1.24, 4.372, 5.02–5.03 administrative procedure, 5.04–5.08 Charter of Fundamental Rights of the EU, 5.10 Editions Odile Jacob cases, 5.21 Eurobolt judgment, 5.26 ‘institution concerned’, 5.12 national courts requesting EU documents, 5.23–5.27 obtaining documents, 5.28–5.41 REACH Regulation, 5.11 Regulation 1049/2001, 5.11, 5.13–5.22 right to be heard, 5.06 rights of the defence, 5.06 Treaty provisions, 5.10 Umbach case, 5.25 Zwartfeld order, 5.24 see also confidentiality; documents; evidence Access to Documents Regulation (1049/2001), 3.33, 4.372, 5.11–5.12 applications for access to documents, 5.16, 5.41 discretionary exceptions, 5.15 Editions Odile Jacob cases, 5.21 litigation, 5.18–5.20 mandatory exceptions, 5.14 parallel requests under General Court Rules of Procedure, 5.20, 5.41 refusal of access, 5.22 Umbach case, 5.25 accession of new Members States, 2.141 Accession Treaties/Acts, 2.95, 2.101, 3.276, 3.701 acte clair, 2.72, 2.87, 2.90 acte éclairé, 2.72, 2.87, 2.89 actions for annulment, see annulment, actions for actions for damages, see damages, actions for actions for failure to act, see failure to act, actions for administrative practice failure to fulfil obligations, 2.26, 2.51, 3.297 failure to observe good administrative practice, 5.379 admissibility, 5.321 actions for annulment, 3.05, 5.322 actions for failure to act, 3.346, 5.322 actions for damages, 3.399, 5.322 appeals, 3.589, 5.322 direct actions, 5.322

infringement proceedings, 2.48 intellectual property cases, 3.527, 5.322 interim measures, 5.94–5.95 opinion proceedings, 3.728 pleas of illegality, 3.652 staff cases, 3.473 see also admissibility of preliminary references; inadmissibility admissibility of preliminary references, 2.109 applications, 2.121–2.122 ‘court’ or ‘tribunal’, 2.110–2.122 features of referring body, 2.109–2.112 adversarial nature of procedure, 2.116 independence, 2.118 judicial nature of decision, 2.119 jurisdiction, 2.115 legal origin of referring body, 2.113 permanence of referring body, 2.114 rule of law, 2.117 foreign courts, 2.125 General Court, 2.126 international courts, 2.124 ‘Member State’, 2.123–2.126 orders for reference, 2.144–2.152 preliminary rulings on validity of EU measures, 3.694 proceedings before referring body contrived disputes, 2.142–2.143 preliminary ruling must be necessary to proceed, 2.131–2.135 purely internal situations, 2.136–2.140 question raised before referring court, 2.127–2.130 rationae temporis, 2.141 adversarial principle access to documents, 5.39, 5.43, 5.44 appeals, 4.18 closed evidence, 5.63 confidential information, 5.52 direct actions, 4.15, 4.167, 4.276 General Court Rules of Procedure, 4.09, 4.296, 5.20, 5.28, 5.44, 5.52 opinion procedure, 4.20, 4.495 preliminary rulings, 4.19 adverse effect, acts with, 3.499–3.506 Advocates General Court of Justice, 1.26 appointment, 1.27 First Advocate General, 1.29

706 Index immunity, 1.28 nature of Opinions, 1.46 oath, 1.28 restrictions on other positions, 1.28 role, 1.45 General Court, 1.50 immunity, 1.51 oath, 1.51 restrictions on other positions, 1.51 opinion proceedings, 4.502 Opinions of Advocates General, 4.357–4.359 language, 4.33 see also judges agents recoverable costs, 5.426–5.433 Agreement on Technical Barriers to Trade (TBT), 3.292 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 3.292 Alsharghawi case, 3.368 alteration power in intellectual property cases, 3.569 Board of Appeal and General Court, relationship between, 3.571–3.572 Edwin case, 3.570 Gappol case, 3.576 illegality requirement, 3.573–3.574 scope, 3.570 Windfinder case, 3.575 Aluminium Silicon Mill Products case, 3.313, 4.237 annulment, actions for, 1.21, 3.01, 4.15 admissibility, 3.05, 3.133 anticompetitive practices, 3.314–3.315 applicants Committee of the Regions, 3.99 Council of the EU, 3.94 Court of Auditors, 3.99 defence of prerogatives, 3.101–3.104 European Central Bank, 3.99 European Commission, 3.94 European Parliament, 3.94 individual applicants, 3.95, 3.105–3.199 Member States, 3.94–3.97 privileged applicants, 3.94–3.98 semi-privileged applicants, 3.94, 3.99–3.104 third countries, 3.98 binding acts, 3.13–3.15 legal basis, 3.16 legal effect, 3.17–3.24 substance v form, 3.25–3.37 capacity to bring proceedings, 3.105–3.108 challenging acts addressed to applicants, 3.133–3.135 challenging acts not addressed to applicants, 3.136–3.139 direct concern, 3.140–3.157 individual concern, 3.158–3.173 choice of language, 4.23 concluding international agreements, 3.61

confirmatory acts, 3.44–3.52 consequences, 3.320–3.321 damages, 3.334 duties of institutions and bodies, 3.330–3.337 erga omnes effect, 3.327–3.329 remedies, 3.330–3.337 res judicata, 3.338–3.341 temporal aspects, 3.322–3.326 defendants EU institutions/bodies/offices/agencies, 3.75–3.90 Member States, 3.91–3.92 expired acts, 3.12, 3.74 formalities, 3.216–3.218 forum, 3.02 grounds for review, 3.240–3.243 EU institutions, 3.249–3.251 EU lack of competence, 3.246–3.248 extent of review, 3.309–3.313 infringement of essential procedural requirement, 3.252–3.272 infringement of EU law, 3.273–3.300 lack of competence, 3.244–3.251 légalité externe and légalité interne, 3.242 misuse of power, 3.301–3.303 partial annulment, 3.319 pleas in law, 3.241, 3.306–3.308 scope of review, 3.304–3.317 severability, 3.318 Treaty provisions, 3.240 illegality as a justification for, 3.316–3.317 individual applicants admissibility, 3.105–3.199 challenging ‘regulatory acts’, 3.174–88 challenging acts addressed to them, 3.133–3.135 challenging acts not addressed to them, 3.136–3.173 legal interest in annulment, 3.109–3.127 legal personality, 3.105–3.108 partial standing, 3.208–3.213 standing of associations, 3.200–3.205 standing of trade unions and consortia, 3.206–3.207 standing, 3.128–3.132 information/interpretative acts, 3.54–3.55 infringement of essential procedural requirement breach of deadlines, 3.271 breach of internal procedural rules, 3.269 breach of right to participate, 3.270 effect, 3.254 examination ex officio, 3.253 insufficient reasoning, 3.256–3.265 lack of authentication, 3.272 margin of discretion, 3.255 rights of the defence, 3.266–3.268 source of law, 3.252 infringement of EU law, 3.273 administrative practice, 3.297 Charter of Fundamental Rights of the EU, 3.276–3.277

Index 707 effective judicial protection, 3.284 equal treatment, 3.282 errors of assessment, 3.299 errors of fact, 3.299 general principles, 3.278–3.287 guidelines and notices, 3.296 hierarchy of norms, 3.275 international agreements, 3.288–3.294 interpretation of national law, 3.300 interpretation of norms, 3.274 landmark judgments, 3.298 legal certainty, 3.280 legitimate expectations, 3.281 nullum crimen sine lege, nulla poena sine lege doctrine, 3.286 presumption of innocence, 3.285 proportionality, 3.283 right to property, 3.287 rights of the defence, 3.284 secondary legislation, 3.295 Treaties, 3.276–3.277 interest in bringing actions for annulment, 3.109 annulment of national decisions, 3.121 burden of proof, 3.126 capacity to benefit from annulment, 3.115 damages, 3.120 heads of claim, 3.125 impact on costs, 3.127 interest on date of filing, 3.111 irreversible implementation of act, 3.118 lack of interest, 3.123 legal proceedings, 3.119 measure lapsed, 3.117 personal interest, 3.114 pleas in law, 3.125 preventing repetition of unlawful administrative behaviour, 3.112 re-establishment of good reputation, 3.122 sum repaid, 3.116 when adversely affected by measure, 3.110 internal rules/instructions/guidelines, 3.57–3.58 lack of competence, 3.244–3.245 EU institutions, 3.249–3.251 EU lack of competence, 3.246–3.248 lack of standing actions for damages, 3.215 incidental review, 3.214 non-existent acts, 3.12, 3.66–3.70 non-reviewable acts alternative remedies, 3.63–3.65 declarations of intent, 3.56 initiating court proceedings, 3.60 OLAF reports, 3.62 refusal to initiate infringement proceedings, 3.59 partial annulment, 3.97, 3.208–3.213, 3.318–3.319, 438 pleas of illegality, relationship with, 3.659 preparatory/preliminary/intermediary acts, 3.38–3.43

regulatory acts not entailing implementing measures, 3.174–3.199 reviewable acts, 3.08–3.12 binding acts, 3.13–3.52 confirmatory acts, 3.44–3.52 declarations of intent, 3.56 informative/interpretative acts, 3.54–3.55 internal rules/instructions/guidelines, 3.57–3.58 letters/email/communications, 3.29–3.31 oral statements, 3.27 physical acts, 3.28 preparatory/preliminary/intermediary acts, 3.38–3.43 separately reviewable acts, 3.11 withdrawn/replaced/expired/annulled/non-existent acts, 3.12 semi-privileged applicants, 3.99 defence of prerogatives, 3.101–3.104 infringement of prerogative, 3.102–3.104 staff cases, claim for annulment in, 3.498–3.508 effects, 3.515 grounds, 3.514 proportionality, 3.515 re-adoption after annulment, 3.516 standing to bring actions actions for failure to act compared, 3.383 third countries, 3.98 time limits, 3.219–3.221 amendments, 3.235 awareness of contested act, 3.232–3.324 not bringing an action in good time, 3.236–3.239 notification, 3.230–3.231 publication of contested acts, 3.222–3.229 Tobacco advertisement case, 3.248 Treaty provisions, 3.03–3.04, 3.75–3.76 withdrawn/replaced acts, 3.12, 3.71–3.73 Yusuf and Al Barakaat case, 3.656 anonymity, 4.465, 5.66–5.67 anti-dumping, 3.46, 3.152, 3.169, 3.184, 3.193, 3.293 Aluminium Silicon Mills case, 3.313, 4.237 Blaas case, 3.707 Eurobolt case, 5.26 Fresh Marine case, 4.144 Marquis Energy case, 3.146 Nachi case, 3.329 antitrust cases, 3.314–3.315, 5.251 appeals, 3.579 admissibility, 3.589 allowing the appeal, 4.423 annulment at first instance, 3.641 appealable decisions, 3.591, 3.598 judgments and orders on admissibility, 3.592 judgments and orders on substance, 3.592 limitations, 3.594 orders on interim measures, 3.593 orders rejecting intervention, 3.593

708 Index appellants EU institutions, 3.601 interim measures proceedings, 3.602, 3.607 interveners unsuccessful at first instance, 3.603, 3.606 interveners, 3.602, 3.604 main parties unsuccessful at first instance, 3.603 Member States, 3.601 non-privileged appellants, 3.601 privileged appellants, 3.601, 3.602, 3.605 unsuccessful applicants, 3.602 assignment of the case, 4.437 choice of language, 4.26 CJEU Statute, 3.582 clarity of subject matter, 4.418–4.421 closure of the case judgments, 4.441–4.442 reasoned order, 4.443–4.446 costs, 4.406 allocation of costs, 5.400–5.404 Court of Justice Rules of Procedure, 4.403–4.404 cross-appeals, 3.588, 3.616, 3.643–3.644, 4.409, 4.424–4.431 delay of other legal effects, 4.407 distortion of evidence, 3.634–3.638 European Chemicals Agency cases, 3.584, 3.594 European Union Intellectual Property Office cases, 3.584, 3.594 formalities, 3.600, 3.614, 4.411–4.417 forum, 3.583, 4.18 Community Plant Variety Office cases, 3.584 European Chemicals Agency cases, 3.584 European Union Aviation Safety Agency cases, 3.584 European Union Intellectual Property Office cases, 3.584 grounds for appeal, 3.618 breach of procedure, 3.620 errors in law, 3.623–3.631 fact-related issues, 3.622, 3.632–3.638 infringement of EU law by General Court, 3.621 lack of competence, 3.619 inadmissible appeals mere re-iteration of previous arguments, 3.624 entirely new pleas, 3.625 intellectual property cases, 3.525, 3.544 alteration power, 3.569–3.576 Cancellation Division appeals, 3.547 claims for alteration, 3.553–3.554 claims for annulment, 3.552 Edwin case, 3.570 ex parte proceedings, 3.545 Gappol case, 3.576 illegality requirement, 3.573–3.574 inter partes proceedings, 3.546 Windfinder case, 3.575

interest to act, 3.609 interim measures, 5.71 appealable decisions, 3.593 appealing interim relief orders, 5.153, 5.154–5.164 interim measures proceedings, 3.602, 3.607 requesting interim measures within appeal procedure, 5.153, 5.165–5.180 interventions, 3.602–3.604, 3.606, 5.237, 5.261, 5.301 joint appeals, 4.409–4.410 Judge-Rapporteur, designation of, 4.422 judgment/order dismissed, 3.639 judgment/order upheld, 3.640 legal history, 3.580 measures of inquiry, 4.438–4.439 measures of organisation of procedure, 4.438–4.439 non-appealable decisions, 3.595–3.596, 3.599 amount of costs, 3.597 non-privileged appellants, 3.601 admissibility, 3.608–3.611 opinion proceedings, 4.498 oral part of procedure, 4.440 pleas in law, 4.421 preparation, 4.405 preliminary reports, 4.436 public policy matters, 3.626 referring cases back to General Court, 4.447–4.451 rejoinders, 4.432–4.435 replies, 4.432–4.435 respondents, 3.612 interveners, 3.613 sensitive materials, treatment of, 5.64 staff cases, 3.483 standing, 3.611 substance, 3.590 substitution of reasoning, 3.628 suspension of judgments, 3.585–3.586 suspensory effect, 4.408 time limits, 3.617 trade mark cases, 3.587 Treaty provisions, 3.581 waiver of right to appeal, 3.615 applicants actions for annulment Committee of the Regions, 3.99 Council of the EU, 3.94 Court of Auditors, 3.99 defence of prerogatives, 3.101–3.104 European Central Bank, 3.99 European Commission, 3.94 European Parliament, 3.94 individual applicants, 3.95, 3.105–3.199 Member States, 3.94–3.97 privileged applicants, 3.94–3.98 semi-privileged applicants, 3.94, 3.99–3.104 third countries, 3.98

Index 709 challenging acts addressed to applicants, 3.133–3.135 challenging acts not addressed to applicants, 3.136–3.139 actions for damages assignment of right to bring a claim, 3.421 eligible persons, 3.420 actions for failure to act bodies, offices and agencies, 3.385 EU institutions, 3.381 individual applicants, 3.382 Member States, 3.381 non-privileged applicants, 3.382–3.385 privileged applicants, 3.381 individual applicants actions for annulment, 3.95, 3.105–3.199 actions for failure to act, 3.382 admissibility, 3.105–3.199 challenging ‘regulatory acts’, 3.174–88 challenging acts addressed to them, 3.133–3.135 challenging acts not addressed to them, 3.136–3.173 legal interest in annulment, 3.109–3.127 legal personality, 3.105–3.108 partial standing, 3.208–3.213 standing of associations, 3.200–3.205 standing of trade unions and consortia, 3.206–3.207 standing, 3.128–3.132 intellectual property cases, 3.533 cross-claims, 3.540–3.541 interest to act, 3.534–3.535 interveners, 3.537–3.542 transfer of ownership, 3.536, 3.542 interim measures, 5.74–5.77 privileged applicants actions for annulment, 3.94–3.98 actions for failure to act, 3.381 semi-privileged applicants, 3.99 actions for annulment, 3.101–3.104 actions for failure to act, 3.382–3.385 defence of prerogatives, 3.101–3.104 infringement of prerogative, 3.102–3.104 staff cases, 3.480 applications in direct actions, 4.104–4.105 actions by the Courts post-application, 4.198–4.201 aide-mémoire, 4.106 clarity of subject matter, 4.138–4.147 evidence, 4.196–4.197 formalities, 4.107–4.137 forms of order sought, 4.148–4.173 heads of claim, 4.148–4.173 pleas in law, 4.174–4.195 appointing authority, 3.487–3.489 arbitration clause cases, 3.65, 4.15, 4.157 action for annulment distinguished, 4.122 choice of language, 4.25 jurisdiction, 3.402–3.403

Area of Freedom, Security and Justice (AFSJ), 4.490, 5.182 AssiDomän case, 3.329 assignment of cases, 1.35, 1.58 appeals, 4.437 President of General Court, 1.65 reassignment of a cases, 1.59 assignment of right to bring a claim, 3.421 awards for damages, 3.452 balancing interests, 5.139–5.141 Bergaderm case, 3.431 bindingness of preliminary rulings, 2.156–2.158 bodies, offices and agencies, 2.98–2.99 applicants, 3.385, 3.601, 5.242 defendants, 3.76, 3.79, 3.378, 3.418, 3.481 interveners, 3.613, 5.239, 5.242, 5.305 third-party proceedings, 5.461 burden of proof actions for annulment, 3.126, 3.138, 3.233 actions for damages, 3.428, 3.460 documents filed out of time, 4.99 infringement proceedings, 2.51 Buy Irish case, 2.11 capacity to bring proceedings actions for annulment, 3.105–3.108 case management, 1.35, 1.59, 1.64, 4.09, 5.187, 5.224, 5.334 causation action for damages, 3.427, 3.453–3.458 third party acts, 3.458 Centeno Mediavilla case, 3.682 Chambers Court of Justice, 1.31–1.32 Grand Chamber, 1.33 Presidents of Chambers, 1.36 General Court, 1.55 Grand Chamber, 1.56 Charter of Fundamental Rights of the EU (CFREU) actions for annulment, 3.276–3.277 actions for damages, 3.435 effective judicial protection, 1.04, 3.175, 3.284, 5.137 excessively long proceedings, 3.620, 3.642, 4.09 expedited procedure, 4.485, 5.201 hierarchy of norms, 1.10, 3.275 Inuit II case, 3.681 international agreements, relationship with, 3.289 interpretative jurisdiction of Court of Justice of the EU, 2.68, 2.95, 2.106 legal aid, 5.445 nullum crimen sine lege, nulla poena sine lege, 3.286 presumption of innocence, 3.285 principle of equal treatment, 3.282 procedure requirements, 3.252 right to a fair hearing, 3.266, 5.43, 5.445 rights of the defence, 3.266, 4.177, 4.195 rule of law, 1.04

710 Index civil servants, see staff cases Civil Service Tribunal, 1.16–1.17, 3.471, 3.583, 4.10 claims for damages, see damages, action for class actions staff cases, 3.484 trade unions, 3.206 clerical errors, 4.73, 4.209, 5.460 closure of proceedings appeals judgment, by, 4.441–4.442 reasoned order, by, 4.443–4.446 direct actions, 4.368–4.372 intellectual property cases, 4.401 preliminary rulings procedure judgment, by, 4.476–4.478 reasoned order, by, 4.479–4.481 closure of written part of proceedings appeals, 4.448, 4.450 direct actions, 4.256 intellectual property cases, 4.397 Coillte Teoranta case, 2.14 Commission v ECB (fraud prevention) case, 3.684 Commission v Italy (compensation schemes for crime victims) case, 3.667 Commission v Poland (Białowieża forest) case, 5.226 Committee of the Regions actions for annulment, 3.80, 3.99, 3.101 pleas of illegality, 3.667–3.668 Common Foreign and Security Policy (CFSP), 2.05, 2.68, 3.84, 3.726, 4.09, 4.161, 4.162 Community Design Regulation (6/2002), 3.521, 3.530 Community Plant Variety Office (CPVO), 1.20, 1.43, 3.519, 4.374, 5.17 actions against, 3.522, 3.532 appeals, 3.584 cross-claims, 4.392 interveners, 5.260 response, 4.386 judgment by default, 4.390 see also intellectual property rights; plant varieties Community Plant Variety Rights Regulation (2100/94), 3.530 compensation for damage, 3.465–3.466 quantum, 3.467–3.469 staff cases, 3.518 competition law, see antitrust cases concurrent liability actions for damages determining jurisdiction, 3.408 exhaustion of national remedies, 3.409 lis pendens, 3.410 conferral principle actions for annulment, 3.246, 3.248 Court of Justice of the EU, 1.14 confidentiality anonymity, 5.66–5.67 interventions, 5.271

General Court, 5.272–5.281 Court of Justice, 5.282–5.283 joinder of cases, 5.314 treatment of confidential evidence, 5.42–5.44 General Court Rules of Procedure, 5.45–5.52 partial access, 5.51 contractual liability of the EU, 3.402–3.405 costs, 5.359 allocation of costs appeals, 5.400–5.404 direct actions, 5.366–5.399 intellectual property cases, 5.366–5.399 amicable settlement, 5.392 appeals allocation of costs, 5.400–5.404 avoidable costs, 5.362 court proceedings, 5.361–5.365 direct actions allocation of costs, 5.366–5.399 discontinuance, 5.354, 5.389–5.391 inadmissibility of the action, 5.386 intellectual property cases, 3.558–3.559 allocation of costs, 5.366–5.399 interim measures, 5.152, 5.393–5.395 interventions, 5.303–5.304, 5.382–5.384 allocation of costs, 5.305–5.309 applications to intervene, 5.396–5.399 taxation of costs, 5.310 manifest abuse of process, 5.363 no need to adjudicate, 5.350, 5.387–5.388 opinion proceedings, 4.497 preliminary rulings, 5.440–5.442 recovery of costs, see recovery of costs unreasonable litigation, 5.377–5.381 unsuccessful party pays, 5.367–5.370 exceptions, 5.371–5.376 vexatious litigation, 5.377–5.381 withdrawal, 5.354, 5.389–5.391 Council of the EU, 2.97 actions for annulment, 3.77 defendants, 3.377 actions for damages defendants, 3.417 actions for failure to act, 3.381 intervener, as, 5.239 pleas of illegality, 3.667–3.668 public access to documents, 5.11 Court of Auditors, 2.97 actions for annulment, 3.05 applicant, as, 3.93, 3.99, 3.101 defendant, as, 3.78 actions for failure to act, 3.342 applicant, as, 3.381 defendant, as, 3.377 infringement proceedings, 2.17 pleas of illegality, 3.667–3.668

Index 711 public access to documents, 5.11 staff cases defendant, as, 3.481 Court of Justice, 4.02 actions for annulment, 3.02 actions for damages, 3.396 actions for failure to act, 3.343 Advocates General, 1.26, 1.45 nature of Opinions, 1.46 assignment of cases, 1.35 appeals, 3.583 Community Plant Variety Office cases, 3.584 European Chemicals Agency cases, 3.584 European Union Aviation Safety Agency cases, 3.584 European Union Intellectual Property Office cases, 3.584 cases with similar object to General Court, 1.24 Chambers, 1.31–1.32 Grand Chamber, 1.33 Presidents of Chambers, 1.36 collegiate decisions, 1.40 competences, 1.19 composition, 1.26 confidentiality interventions, 5.282–5.283 deliberations, 1.37 design rights cases, 3.524–3.525 alteration power, 3.569 designation of judges, 1.39 direct actions, 4.101 expedited procedure, 5.188 First Advocate General, 1.29 full Court, 1.34 general meeting, 1.41 hearings, 4.311–4.315 inaudita altera parte orders, 5.97 interim measures, 5.72, 5.91 Judge-Rapporteur, 1.44 judges, 1.26 oath and immunity, 1.28 Practice Directions, 4.03, 4.12 preliminary rulings on validity of EU measures, 3.693, 3.697 President, 1.29, 1.42 quorum, 1.39 Registrar, 1.30, 1.47, 4.55 Rules of Procedure, 4.03, 4.05–4.08 expedited procedure, 5.186–5.187 interventions, 5.233 orders for reference, 2.146–2.147 staff, 1.48 staff cases, 3.471 Vice President, 1.29, 1.43 Court of Justice of the EU (CJEU) actions for annulment, 1.21, 3.78 actions for failure to act, 3.381

allocation of powers, 1.14 appeals, 4.18 applications, 1.22 background, 1.15 cases with similar object before both EU Courts, 1.24 Civil Service Tribunal, 1.16–1.17, 4.02 conferral principle, 1.14 direct actions, 4.15 intellectual property cases, 4.17 staff cases, 4.16 division of competences, 1.18, 1.21 Court of Justice, 1.19 General Court, 1.20 e-Curia decisions, 4.13 Euratom Treaty, 4.21 European Economic Area Agreement, 4.21 failure to act, 1.21 filing, 1.22 interpretative jurisdiction acts outside Court remit, 2.102–2.108 application of EU law, 2.108 Charter of Fundamental Rights of the EU, 2.106 establishment of facts, 2.107 international law, 2.105 interpretation of acts of EU institutions, 2.97, 2.100–2.101 interpretation of acts of bodies, offices and agencies, 2.98–2.101 interpretation of Treaties, 2.95–2.96 national law, 2.102–2.104 opinion proceedings, 4.20 preliminary rulings, 4.19 referral to competent court, 1.23 rules governing procedure, 4.02–4.03, 4.21 appeals, 4.18 burden of proof, 4.99 direct actions, 4.15–4.17 e-Curia decisions, 4.13 language of case, 4.22–4.41 lodging documents, 4.56–4.67 opinion proceedings, 4.20 Practice Directions, 4.12 Practice Rules, 4.12 preliminary rulings, 4.19 removal of documents, 4.70–4.73 representation of parties, 4.42–4.54 Rules of Procedure Court of Justice, 4.05–4.07 Rules of Procedure General Court, 4.08–4.11 service of documents, 4.68–4.69 Statute, 4.04 time limits, 4.74–4.99 Statute, 3.582–3.586, 4.04 structure Court of Justice, 1.25–1.48, 4.02–4.03 General Court, 1.49–1.69, 4.02–4.03 Treaty on European Union, 1.13, 4.14

712 Index Treaty on the Functioning of the EU division of competences, 1.18–1.24 see also Civil Service Tribunal; Court of Justice; General Court cross-appeals, 3.588, 3.616, 3.643–3.644, 4.409 formalities, 4.425 lodging cross-appeals, 4.424 size limit, 4.426 time limit, 4.428–4.430 cross-claims intellectual property cases, 3.540–3.541, 3.560–3.561, 4.392–4.396 Custom Duties of Apulia case, 2.13 damages, actions for, 3.395, 3.401, 4.15 actions for annulment, 3.334 combining two actions, 3.414 effects compared, 3.413 non-reviewable acts, 3.64 admissibility, 3.399 applicants assignment of right to bring a claim, 3.421 eligible persons, 3.420 burden of proof, 3.460 causation, 3.453–3.457 third party acts, 3.458 choice of language, 4.23 compensation, see compensation for damage concurrent liability determining jurisdiction, 3.408 exhaustion of national remedies, 3.409 lis pendens, 3.410 contractual liability of the EU, 3.402–3.405 defendants acts of individuals, 3.419 bodies, offices and agencies, 3.418 EU institutions, 3.416–3.417 European Union, 3.415–3.416 formalities, 3.422 forum, 3.396 heads of damage loss of future earnings, 3.463 loss of profit, 3.462 moral losses, 3.464 non-material damage, 3.464 liability lawful acts, 3.449–3.451 unlawful act or conduct, 3.430 non-contractual liability of the EU, 3.406–3.407 other forms of direct action compared, 3.411 pleas of illegality, relationship with, 3.660 preliminary rulings, 2.70 res judicata, relationship with, 3.413 staff cases, 3.517 compensation for damage, 3.518 substance, 3.400, 3.426–3.428 causation, 3.453–3.458

existence of damage, 3.459–3.464 unlawful act or conduct, 3.429–3.452 time limits, 3.423–3.425 relationship with, 3.412 Treaty provisions, 3.397–3.398 unlawful act or conduct, 3.429 awards thresholds, 3.452 Bergaderm case, 3.431 breach of rule of Union law, 3.432–3.433 liability, 3.430 rules conferring rights on individuals, 3.434–3.438 sufficiently serious breach, 3.438–3.448 see also compensation for damage defence direct actions, 4.202–4.203 actions by the Courts post-defence, 4.219–4.220 formalities, 4.204–4.209 forms of order sought, 4.211–4.214 pleas in law, 4.215–4.218 substantive requirements, 4.210 defences in infringement proceedings, 2.32 Commission conduct, 2.33 EU legal order, 2.33 situation of Member State, 2.34 defendants actions for annulment Court of Auditors, 3.78 EU institutions/bodies/offices/agencies, 3.75–3.90 Member States, 3.91–3.92 actions for damages acts of individuals, 3.419 bodies, offices and agencies, 3.418 EU institutions, 3.416–3.417 European Union, 3.415–3.416 actions for failure to act, 3.376 bodies, offices and agencies, 3.378 Court of Auditors, 3.377 EU institutions, 3.377 European Commission, 3.380 European Court of Human Rights, 3.379 non-EU entities, 3.379 defendant Member States, 2.07 actions for annulment, 3.91–3.92 government branch responsibility, 2.10 national responsibility, 2.08 origin of infringement, 2.09 infringement proceedings, 2.07–2.14 intellectual property rights actions against Community Plant Variety Office, 3.522, 3.532 actions against European Union Intellectual Property Office, 3.521, 3.532 interim measures, 5.78 staff cases Court of Auditors, 3.481 design rights, 3.521 forum, 3.524–3.525 see also intellectual property rights

Index 713 direct actions, 4.15–4.17, 4.100 allocation of costs, 5.366–5.399 application, 4.104–4.105 actions by the Courts post-application, 4.198–4.201 aide-mémoire, 4.106 clarity of subject matter, 4.138–4.147 evidence, 4.196–4.197 formalities, 4.107–4.137 forms of order sought, 4.148–4.173 heads of claim, 4.148–4.173 pleas in law, 4.174–4.195 closure of cases, 4.368–4.372 defence, 4.202–4.203 actions by the Courts post-defence, 4.219–4.220 formalities, 4.204–4.209 forms of order sought, 4.211–4.214 pleas in law, 4.215–4.218 substantive requirements, 4.210 deliberations, 4.360–4.361 forum, 4.101 hearings, see hearings interim measures, 5.71 interventions, 5.237 judgments and orders inadmissibility, 4.367 substance of case, 4.362–4.366 measures of inquiry, 4.285 adversarial principle, 4.276 applications for documents, 4.274 experts’ reports, 4.299–4.300 General Court, 4.273 judicial discretion, 4.287 legal sources, 4.269 measures of organisation of procedure distinguished, 4.270 new pleas in law, 4.304 oral testimony, 4.297–4.298 personal appearance of parties, 4.289–4.290 practice, 4.288 procedure, 4.286 proposing parties, 4.272 requests for information or materials, 4.291–4.295, 4.301–4.304 requests for previously denied documents, 4.296 third entities, 4.275 when adopted, 4.271 measures of organisation of procedure, 4.277 adversarial principle, 4.276 applications for documents, 4.274 Court of Justice Rules of Procedure, 4.278 General Court Rules of Procedure, 4.273, 4.279 legal sources, 4.269 measures of inquiry distinguished, 4.270 new pleas in law, 4.304 oral part of procedure, 4.282

proposing parties, 4.272 questions and requests for documents, 4.281, 4.301–4.304 responses, 4.284 third entities, 4.275 timing, 4.280 when adopted, 4.271 Opinions of Advocate General, 4.357–4.359 preliminary reports, 4.258 actions by the Courts, 4.266–4.268 content, 4.260–4.264 reports for hearings, 4.265 timing, 4.259 rejoinders, 4.251–4.252 actions by the Courts post-rejoinder, 4.256–4.257 new evidence, 4.253–4.255 new pleas in law, 4.253–4.255 reply, 4.221–4.226 actions by the Courts post-reply, 4.250 new evidence, 4.243–4.249 new pleas in law, 4.227–4.242 see also annulment, actions for; damages, actions for; failure to act, actions for; infringement proceedings; staff cases direct concern actions for annulment, 3.136–3.148, 3.147 actions for failure to act, 3.383 discretion to implement, 3.151–3.157 interveners, 5.250 direct effect principle, 1.08 direct review of legality, 1.11 discontinuance, 5.351–5.352 costs, 5.354, 5.389–5.391 discretion of the Courts actions for damages sufficiently serious breach requirement, 3.440–3.448 allocation of costs, 5.388 infringement proceedings, 2.62 measures of inquiry, 4.287 preliminary rulings, requests for, 2.73–2.80 sufficiently serious breach requirement, 3.440, 3.444 complexity, 3.445 excusable error, 3.447–3.448 limited discretion, 3.441 margin of discretion, 3.442 Milk Quota case, 3.443 overriding public interests, 3.446 distortion of evidence appeals, 3.633, 3.634–3.638 division of competences, 1.18–1.24 documentary evidence, see evidence documents documents lodged out of time, 4.94 excusable error, 4.97 force majeure, 4.96 procedure, 4.98–4.99 unforeseeable circumstances, 4.95

714 Index e-Curia applications authentication, 4.60 date and time, 4.61 lodging annexes by post, 6.62 lodging documents, 4.59 service of documents, 4.68 signatures, 4.60 lodging documents, 4.58 annexes, 4.57 date and time, 4.56, 4.61 documents lodged out of time, 4.94–4.99 e-Curia applications, 4.59–4.62 excusable error, 4.97 force majeure, 4.96 lodging by post, fax or personal delivery, 4.62, 4.63–4.67 signatures, 4.56, 4.60 unforeseeable circumstances, 4.95 post, fax or personal delivery lodging documents, 4.63–4.67 service of documents, 4.69 removal of documents, 4.70 corrigenda to written proceedings, 4.73 illegally obtained documents, 4.71 superfluous or irrelevant documents, 4.72 service of documents e-Curia, 4.68 service by post, fax or personal delivery, 4.69 domestic courts, see national courts duty to refer, 2.72 consequences of not complying, 2.92 actions for damages, 2.94 infringement proceedings, 2.93 discretion of national courts, 2.73–2.80 exceptions, 2.87 acte clair, 2.90 acte éclairé, 2.89 interpretation irrelevant, 2.88 justification for not referring, 2.91 obligation of courts of last instance to refer, 2.81–2.86 e-Curia e-Curia decisions, 4.13 lodging documents authentication, 4.60 date and time, 4.61 lodging annexes by post, 6.62 lodging documents, 4.59 signatures, 4.60 service of documents, 4.68 Economic and Social Committee, 3.79, 3.80, 5.11 ECSC Treaty, 2.66, 2.95 Editions Odile Jacob cases, 5.21 EEA-EFTA states interveners, 5.240, 5.243, 5.291, 5.305, 5.383 language, 4.36–4.37, 5.268, 5.291

preliminary ruling procedures, 4.463 representation, 4.42, 4.45, 4.47, 4.50 service by means of e-Curia, 4.68 effective judicial protection actions for annulment infringement of EU law, 3.284 Charter of Fundamental Rights of the EU, 1.04, 3.175, 3.284, 5.137 regulatory acts, 3.188 EFTA states, see EEA-EFTA states EFTA Surveillance Authority, 4.463, 5.305 interveners, 5.240, 5.243, 5.266, 5.291, 5.383 language, 4.36, 4.37, 4.461, 5.268, 5.291 representation, 4.42 enforcement of EU law private enforcement national courts, 1.07 public enforcement European Commission, 1.06 enforcement of judgments, 5.466–5.467 actions for annulment, 5.468 actions for damages, 5.468 actions for failure to act, 5.468 costs, 5.468 suspension of enforcement, 4.569 equal treatment, 3.282 erga omnes effect actions for annulment, 3.327–3.329 preliminary rulings on interpretation, 2.158 preliminary rulings on validity of EU measures, 3.715 res judicata, relationship with, 3.340 essential procedural requirement, infringement of actions for annulment breach of deadlines, 3.271 breach of internal procedural rules, 3.269 breach of right to participate, 3.270 effect, 3.254 examination ex officio, 3.253 insufficient reasoning, 3.256–3.265 lack of authentication, 3.272 margin of discretion, 3.255 rights of the defence, 3.266–3.268 source of law, 3.252 EU law direct effect, 1.08 enforcement European Commission, 1.06 national courts, 1.07 private enforcement, 1.07 public enforcement, 1.06 infringement of EU law, 3.273 administrative practice, 3.297 Charter of Fundamental Rights of the EU, 3.276–3.277 effective judicial protection, 3.284 equal treatment, 3.282

Index 715 errors of assessment, 3.299 errors of fact, 3.299 general principles, 3.278–3.287 guidelines and notices, 3.296 hierarchy of norms, 3.275 international agreements, 3.288–3.294 interpretation of national law, 3.300 interpretation of norms, 3.274 landmark judgments, 3.298 legal certainty, 3.280 legitimate expectations, 3.281 nullum crimen sine lege, nulla poena sine lege doctrine, 3.286 presumption of innocence, 3.285 proportionality, 3.283 right to property, 3.287 rights of the defence, 3.284 secondary legislation, 3.295 Treaties, 3.276–3.277 right to invoke EU law, 1.09 primacy of EU law, 1.05 see also Charter for Fundamental Rights of the EU; Treaty on the Functioning of Europe EU-Canada Comprehensive Economic and Trade Agreement (CETA), 3.727 EU Trade Mark Regulation (2017/1001), 3.521, 3.530 Euratom Treaty, 3.276 appeals against the arbitration committee, 4.21 Court of Justice Rules of Procedure, 4.21 interim measures, 5.68 opinion proceedings, 3.723, 3.726 European Anti-Fraud Office (OLAF) actions for annulment, 3.86 OLAF reports, 3.62 European Central Bank (ECB), 2.97 actions for annulment, 3.77, 3.99 actions for damages, 3.417 actions for failure to act, 3.344, 3.373, 3.381 enforcement of judgments, 5.466 infringement proceedings, 2.17 pleas of illegality, 3.647, 3.667–3.668 public access to documents, 5.10 staff cases, 3.477 European Chemicals Agency (ECHA) actions for annulment, 3.24, 3.82 appeals, 3.584, 3.594, 4.417, 4.423 European Coal and Steel Community (ECSC), 2.66, 2.95 European Commission, 2.97 actions for annulment, 3.77, 3.94 actions for failure to act, 3.380, 3.381 infringement proceedings applicant, as, 2.15 pleas of illegality, 3.667–3.668 public enforcement, 1.06

European Communities Personnel Selection Office (EPSO) actions for annulment, 3.85 European Convention on Human Rights right to a fair trial, 4.316, 5.25 European Council, 2.97 actions for annulment, 3.77, actions for failure to act, 3.381 European Court of Human Rights (ECtHR) actions for failure to act, 3.379 European Defence Agency (EDA) actions for annulment, 3.84 European Free Trade Association (EFTA) interveners EEA-EFTA states, 5.240, 5.383 EFTA Surveillance Authority, 5.240 European Investment Bank actions for annulment, 3.79, 3.81 actions for damages, 3.418 infringement actions, 2.17 staff cases, 3.477 public access to documents, 5.10 European Ombudsman actions for damages, 3.418 actions for failure to act, 3.378 staff cases, 3.477 European Parliament, 2.97 actions for annulment, 3.77, 3.94 applicants, 3.93–3.95, 3.100 defendants, 3.75 actions for failure to act, 3.380, 3.381 opinion procedure, 3.721, 3.730–3.731, 4.495 pleas of illegality, 3.647, 3.668–3.669 public access to documents, 5.11, 5.12 European Union contractual liability, 3.402–3.405 intellectual property cases, 3.520, 3.523 non-contractual liability, 3.406–3.407 see also EU law European Union Aviation Safety Agency (EASA), 1.43 appeals, 3.584, 3.594, 4.417 public access to documents, 5.11 European Union Institute for Security Studies (EUISS) actions for annulment, 3.84 European Union Intellectual Property Office (EUIPO) actions against, 3.521, 3.532 actions for annulment, 3.82 appeals, 3.584 Boards of Appeal, 3.544 Cancellation Division appeals, 3.547 ex parte proceedings, 3.545 inter partes proceedings, 3.546 see also intellectual property rights; trade marks, design rights European Union Satellite Centre (EUSC) actions for annulment, 3.84

716 Index Eurojust actions for annulment, 3.83 Europol actions for annulment, 3.83 evidence access to documents, 5.02–5.03 administrative procedure, 5.04–5.08 Charter of Fundamental Rights of the EU, 5.10 ‘institution concerned’, 5.12 national courts requesting EU documents, 5.23–5.27 obtaining documents, 5.28–5.41 REACH Regulation, 5.11 Regulation 1049/2001, 5.11, 5.13–5.22 Treaty provisions, 5.10 applications for direct action, 4.196–4.197 confidential evidence, 5.42–5.44 General Court Rules of Procedure, 5.45–5.52 infringement proceedings, 2.51–2.52 sensitive evidence, 5.42–5.44 General Court Rules of Procedure, 5.53–5.65 ex tunc effect, 2.63, 3.01, 3.12, 3.117, 3.322, 3.326, 3.515 exclusive jurisdiction, 2.66, 2.140, 3.408, 3.632, 3.693, 3.698 excusable error, 3.220, 3.358, 3.439, 3.447–3.448, 4.95, 4.97, 4.99, 5.342 exhaustion of legal remedies, 2.159, 3.409 expedited procedure, 4.483–4.487, 5.181, 5.184 Court of Justice, 5.188 complexity, 5.203 concrete elements, 5.197 decisions regarding request, 5.208 economic policy, 5.199 expedited procedure of own motion, 5.210 financial policy, 5.199 foreign affairs, 5.200 fundamental rights and values, 5.201 irreversibility, 5.204 legal uncertainty, 5.198 reasoning, 5.212 requests for interim relief, 5.205 risk of economic loss, 5.202 Rules of Procedure, 5.186–5.187 statutory conditions, 5.196 duration of proceedings, 5.190 effects interveners, on, 5.216 oral part of proceedings, 5.215 priority treatment, 5.217 written pleadings, 5.214 formalities case law, 5.194 requests for expedited procedure, 5.191, 5.193 General Court, 5.189 decisions regarding request, 5.209 expedited procedure of own motion, 5.211 reasoning, 5.213

Rules of Procedure, 5.186–5.187 statutory conditions, 5.206–5.207 legal history, 5.185 priority treatment, relationship with, 5.217, 5.229 procedural implications, 5.195 requests for interim relief, relationship with, 5.205, 5.218–5.220 time limits, 5.192 Statute, 5.182 see also priority treatment experts, 4.32 recoverable costs, 5.418–5.421 reports, 4.299–4.300 failure to act, actions for, 1.21, 3.342, 4.15 admissibility, 3.346 applicants bodies, offices and agencies, 3.385 EU institutions, 3.381 individual applicants, 3.382 Member States, 3.381 non-privileged applicants, 3.382–3.385 privileged applicants, 3.381 bringing Court actions, 3.358 choice of language, 4.23 consequences sequence of actions, 3.393 successful actions, 3.391 Treaty provisions, 3.390 unsuccessful actions, 3.392 utility of action, 3.394 defendants, 3.376 bodies, offices and agencies, 3.378 EU institutions, 3.377 European Commission, 3.380 European Court of Human Rights, 3.379 non-EU entities, 3.379 formalities, 3.386–3.388 forum, 3.343 grounds for review, 3.389 interest to act, 3.384 pleas of illegality, relationship with, 3.660 pre-litigation formal notice compliance, 3.355–3.356 form and content, 3.350 practical difficulties, 3.352 purpose, 3.349 response options, 3.354 response time, 3.353 time limits, 3.353, 3.357 timing, 3.351 preliminary rulings, 2.70 standing to bring actions actions for annulment compared, 3.383 subject matter, 3.359

Index 717 defining a position, 3.365–3.368 duty to act, 3.360–3.364 legal effects, relationship with, 3.369–3.373 practice, 3.374–3.375 substance, 3.347 time limits bringing Court actions, 3.358 pre-litigation formal notice, 3.353, 3.357 Treaty provisions, 3.344–3.345 failure to fulfil obligations, 2.24 assessment of failure, 2.31 failure as a consequence of negative behaviour, 2.28 failure as a consequence of positive behaviour, 2.27 failure stemming from facts, 2.26 failure stemming from instruments, 2.25 failure to notify measures, 2.30 failure to transpose a directive, 2.29 First Advocate General, 1.29 force majeure, 2.34, 3.220, 3.358, 3.548, 3.617, 4.95–4.96, 4.99, 4.430, 4.445, 5.342 formalities actions for annulment, 3.216–3.218 actions for damages, 3.422 actions for failure to act, 3.386–3.388 appeals, 3.600, 3.614, 4.411–4.417 cross-appeals, 4.425 direct actions application, 4.107–4.137 defence, 4.204–4.209 expedited procedure case law, 5.194 requests for expedited procedure, 5.191, 5.193 interim measures, 5.88–5.90 interventions, 5.266–5.268 opinion proceedings, 3.737 pleas of illegality, 3.670–3.674 staff cases, 3.493–3.495 forms of order, 4.120, 4.148–4.157, 4.211–4.214, 4.419 clarity, 2.47, 4.158–4.159, 4.382–4.383, 4.420 see also heads of claim fumus boni juris, 5.112–5.120 fundamental rights, see Charter of Fundamental Rights of the EU; European Convention on Human Rights future loss actions for damages loss of future earnings, 3.463 Gappol case, 3.576 General Agreement on Tariffs and Trade (GATT), 3.291, 3.292 Anti-Dumping Code, 3.293 General Court, 4.02 actions for annulment, 3.02 actions for damages, 3.396 actions for failure to act, 3.343 Advocates General, 1.50

appeals, 3.583–3.584 assignment of cases, 1.58 case management, 1.59 cases with similar object to Court of Justice, 1.24 Chambers, 1.55 Grand Chamber, 1.56 Civil Service Tribunal, 1.16–1.17 competences, 1.20 competition fines, 3.631 confidentiality interventions, 5.272–5.281 deliberations, 1.62 direct actions, 4.101 expedited procedure, 5.189 intellectual property cases, 3.549, 4.378–4.381 hearings, 4.316–4.319 inaudita altera parte orders, 5.98 interim measures, 5.73, 5.92 Judge-Rapporteur, 1.67 judges, 1.49 oath and immunity, 1.51 plenum, 1.64 Practice Rules, 4.03, 4.12 President, 1.52, 1.61, 1.65 quorum, 1.63 reassignment of cases, 1.59 referral to a larger formation, 1.60 reform, 1.16–1.17 Registrar, 1.53, 1.68, 4.55 restrictions on other positions, 1.51 Rules of Procedure, 4.03, 4.08–4.11 confidential evidence, 5.45–5.52 expedited procedure, 5.186–5.187 interventions, 5.233 sensitive evidence, 5.53–5.65 single-judge cases, 1.57 staff cases, 3.471 staff, 1.69 staying proceedings, 5.316 trade mark cases, 3.524–3.525 alteration power, 3.569 Vice-President, 1.52, 1.66 good faith, 2.163 Grand Chamber, 1.33 grounds for review actions for annulment, 3.240–3.243 EU institutions, 3.249–3.251 EU lack of competence, 3.246–3.248 extent of review, 3.309–3.313 infringement of essential procedural requirement, 3.252–3.272 infringement of EU law, 3.273–3.300 lack of competence, 3.244–3.251 légalité externe and légalité interne, 3.242 misuse of power, 3.301–3.303 partial annulment, 3.319 pleas in law, 3.241, 3.306–3.308

718 Index scope of review, 3.304–3.317 staff cases, 3.507–3.508 severability, 3.318 Treaty provisions, 3.240 actions for failure to act, 3.389 grounds for appeal, 3.618 breach of procedure, 3.620 errors in law, 3.623–3.631 fact-related issues, 3.622, 3.632–3.638 infringement of EU law by General Court, 3.621 lack of competence, 3.619 intellectual property cases, 3.551 alteration power, 3.569–3.576 scope of review, 3.566–3.568 pleas of illegality actions for annulment compared, 3.676 breach of a superior norm of EU law, 3.679–3.680 Centeno Mediavilla case, 3.682 Commission v ECB (fraud prevention) case, 3.684 infringement of procedural requirements, 3.678 Inuit II case, 3.681 Kik case, 3.683 lack of competence, 3.678 Vereniging Milieudefensie case, 3.685 heads of claim, 4.103, 4.123, 4.148 actions for annulment, 3.125, 4.148, 4.151–4.152, 4.155 actions for damages, 4.154, 4.155 actions for failure to act, 4.153 appeals, 3.630 applications in direct actions, 4.148–4.173 arbitration clause cases, 4.157 clarity, 2.47, 4.158–4.159, 4.382–4.383, 4.420 infringement actions, 2.47, 4.139, 4.149–4.150 intellectual property cases, 3.555–3.557 interveners, 5.300 no new heads of claim, 4.160, 4.449 replacement or amendment, 4.161, 4.163, 4.165 staff cases, 3.496–3.497, 4.156 see also forms of order hearings, 4.305–4.310 actions by the Courts post-hearing, 4.344–4.346 keeping oral procedure open, 4.351–4.352 minutes and recording of hearing, 4.347–4.350 re-opening oral procedure, 4.353–4.356 Court of Justice, 4.311–4.315 General Court, 4.316–4.319 language and interpretation, 4.326 oral pleading, 4.333–4.337 preparation, 4.320–4.325 questions by the Court, 4.338–4.342 reference to cases, 4.330 replies, 4.343 seating order, 4.331

hierarchy of norms, 1.10 actions for annulment, 3.295 infringement proceedings, 3.275 international agreements, 3.288 illegality, pleas of, 3.645, 3.649 acts of general application, 3.654 direct link with subject matter, 3.657 targeting specific provisions, 3.658 acts of individual application, 3.655 acts of international organisations, 3.656 actions for annulment, relationship with, 3.659 actions for damages, relationship with, 3.660 actions for failure to act, relationship with, 3.660 admissibility, 3.652 Commission v Italy (compensation schemes for crime victims) case, 3.667 direct actions, 3.650 formalities, 3.670–3.674 grounds for review actions for annulment compared, 3.676 breach of a superior norm of EU law, 3.679–3.680 Centeno Mediavilla case, 3.682 Commission v ECB (fraud prevention) case, 3.684 infringement of procedural requirements, 3.678 Inuit II case, 3.681 Kik case, 3.683 lack of competence, 3.678 Vereniging Milieudefensie case, 3.685 inapplicability effects inter partes effect, 3.686 plea raised in support of annulment claims, 3.687 third parties, impact on, 3.688 infringement actions, 3.661 intellectual property cases, 3.650 interest to act, 3.665 non-independent judicial avenue, 3.651 parties, 3.662 Member States, 3.666 EU institutions, 3.667–3.668 Spain v Council (fishing effort) case, 3.667 Commission v Italy (compensation schemes for crime victims) case, 3.667 natural/legal persons, 3.663–3.665 preliminary references on validity, relationship with, 3.649 Spain v Council (fishing effort) case, 3.667 time limits, 3.675 Treaty provisions, 3.646–3.647 Yusuf and Al Barakaat case, 3.656 inadmissibility, 5.321 absolute bar to proceedings, as, 5.322, 5.324 appeals, 3.625 costs, 5.386 decision of inadmissibility, 5.323 grounds for finding inadmissibility, 5.336

Index 719 actions initiated out of time, 5.342 lack of interest to act, 5.338 lack of representation, 5.343 lack of standing, 5.337 lis pendens, 5.340 non-reviewable acts, 5.339 res judicata, 5.341 unclear action or appeal, 5.344 no need to adjudicate distinguished, 5.349 preliminary references, 5.345–5.346 raised by a party applicants’ observations, 5.331 assessment by Courts, 5.335 formal pleas, 5.330 informal raising, 5.334 intervention, 5.333 rejoinders, 5.332 replies, 5.332 raised by Courts of own motion absolute bar to proceedings, 5.324, 5.329 lack of competence, 5.327 manifest inadmissibility, 5.327–5.329 practice, 5.326, 5.328 procedure, 5.325 inaudita altera parte orders, 5.96 cancellation, 5.99 Court of Justice, 5.97 General Court, 5.98 order closing interim proceedings, relationship with, 5.100 variation, 5.99 incidental review of legality, 1.11 pleas of illegality, see pleas of illegality preliminary rulings on validity, see preliminary rulings on validity individual concern actions for annulment, 3.136–3.139, 3.158–3.173 actions for failure to act, 3.383 interveners, 5.250 see also direct concern infringement proceedings, 2.01, 4.15 administrative stage informal stage, 2.37 letter of formal notice, 2.38–2.39 reasoned opinion, 2.40–2.43 applicants European Central Bank, 2.17 European Commission, 2.15 individuals, 2.18 Member States, 2.16 case law Volkswagen case, 2.12 Buy Irish case, 2.11 Coillte Teoranta case, 2.14 Custom duties of Apulia case, 2.13 choice of language, 4.24

defences, 2.32 Commission conduct, 2.33 EU legal order, 2.33 situation of Member State, 2.34 defendant Member States, 2.07 government branch responsibility, 2.10 national responsibility, 2.08 origin of infringement, 2.09 failure to fulfil obligations, 2.24 assessment of failure, 2.31 failure as a consequence of negative behaviour, 2.28 failure as a consequence of positive behaviour, 2.27 failure stemming from facts, 2.26 failure stemming from instruments, 2.25 failure to notify measures, 2.30 failure to transpose a directive, 2.29 legal force of judgments, 2.53 limitation of temporal effects, 2.54 litigation phase admissibility, 2.48 changes in EU legislation, 2.50 changes in national legislation, 2.49 evidence, 2.51–2.52 formal and substantive requirements, 2.46–2.47 lodging applications, 2.45 pleas of illegality, 3.661 pre-litigation, 2.35 administrative stage, 2.37–2.43 proceedings initiated by Commission, 2.36 proceedings initiated by Member State, 2.36 sanctions Art. 260(2) TFEU, 2.56–2.58 Art. 260(3) TFEU, 2.58–2.60 failure to comply, 2.56 judicial discretion, 2.62 lump sum and penalty payments, 2.61–2.62 objectives, 2.57 state liability, 2.55 subject of infringement conventions between Member States, 2.23 general principles, 2.21 mixed agreements, 2.22 non-CFSP EU law rules, 2.20 obligations under Treaties, 2.19 time limits, 2.44 Treaty on the Functioning of the EU, 2.02–2.06 inquiry, measures of, 4.285 adversarial principle, 4.276 appeals, 4.438–4.439 applications for documents, 4.274 experts’ reports, 4.299–4.300 General Court, 4.273 interim measures, 5.103 judicial discretion, 4.287 legal sources, 4.269 measures of organisation of procedure distinguished, 4.270

720 Index new pleas in law, 4.304 oral testimony, 4.297–4.298 personal appearance of parties, 4.289–4.290 practice, 4.288 preliminary rulings, 4.472 procedure, 4.286 proposing parties, 4.272 requests for information or materials, 4.291–4.295, 4.301–4.304 requests for previously denied documents, 4.296 third entities, 4.275 when adopted, 4.271 intellectual property cases, 3.519, 4.17 actions against Community Plant Variety Office, 3.522, 3.532, 4.17 actions against European Union Intellectual Property Office, 3.521, 3.532, 4.17 admissibility, 3.527 appeals, 3.525, 3.544 alteration power, 3.569–3.576 Edwin case, 3.570 Gappol case, 3.576 illegality requirement, 3.573–3.574 Windfinder case, 3.575 applicants, 3.533–3.542 applications clarity of subject matter, 4.382–4.383 formalities, 4.378–4.381 service of application, 4.384 transfer of case file, 4.385 choice of language, 4.28 claims for alteration, 3.553–3.554 claims for annulment, 3.552 costs, 3.558–3.559 allocation of costs, 5.366–5.399 cross-claims, 3.560–3.561, 4.392–4.396 design cases, 3.521 EU powers, 3.520, 3.523 formalities, 3.549 forum, 3.524–3.525 grounds for review, 3.551 alteration power, 3.569–3.576 scope of review, 3.566–3.568 heads of claim, 3.555–3.557 interest to act, 3.534 interventions, 3.537–3.542, 5.237, 5.260, 5.302 language, 4.375 legal basis for claims, 3.519, 3.526 IP Regulations, 3.530 Treaty provisions, 3.529 plant variety cases, 3.522 pleas of illegality, 3.650 pre-litigation, 3.543–3.547 Cancellation Division proceedings, 3.547 ex parte proceedings, 3.545 inter partes proceedings, 3.546

procedure, 4.373–4.374 actions by General Court, 4.397–4.398 applications, 4.378–4.385 closure of case, 4.401 cross-claims, 4.392–4.396 general rules, 4.375–4.377 oral part of procedure, 4.399–4.400 responses, 4.386–4.391 representation, 4.376 responses content, 4.388 exchanges of pleadings, 4.391 judgment by default, 4.390 lodging responses, 4.386 substantive requirements, 4.389 time limits, 4.387 reviewable acts, 3.550 scope of trade mark, 3.543 substance, 3.528, 3.550–3.561 pre-litigation, relationship with, 3.562–3.565 time limits, 3.548 trade mark cases, 3.521 transfer of ownership, 3.536, 3.542 see also Community Plant Variety Office; design rights; European Union Intellectual Property Office; plant varieties; trade marks interest in bringing actions actions for annulment, 3.109 annulment of national decisions, 3.121 burden of proof, 3.126 capacity to benefit from annulment, 148 damages, 3.120 direct concern, 3.148 heads of claim, 3.125 impact on costs, 3.127 interest on date of filing, 3.111 irreversible implementation of act, 3.118 lack of interest, 3.123 legal proceedings, 3.119 measure lapsed, 3.117 personal interest, 3.114 pleas in law, 3.125 preventing repetition of unlawful administrative behaviour, 3.112 re-establishment of good reputation, 3.122 sum repaid, 3.166 when adversely affected by measure, 3.110 actions for failure to act, 3.384 admissibility, relationship with, 5.338 appeals, 3.609 intellectual property cases, 3.534–3.535 interim measures admissibility, 5.94–5.95 ancillary nature, 5.93 appeals, 5.71

Index 721 appealable decisions, 3.593 appealing interim relief orders, 5.153, 5.154–5.164 interim measures proceedings, 3.602, 3.607 requesting interim measures within appeal procedure, 5.153, 5.165–5.180 applicants, 5.74–5.77 closure of proceedings costs, 5.152 granting interim relief, 5.147–5.151 reasoned order, 5.142–5.143 rejection of application, 5.144–5.146 costs, 5.152, 5.393–5.395 Court of Justice, 5.72, 5.91 defendants, 5.78 direct actions, 5.71 expedited procedure, relationship with, 5.205, 5.218–5.220 formalities, 5.88–5.90 General Court, 5.73, 5.92 inaudita altera parte orders, 5.96–5.100 interest to act, 5.77 interim relief orders, 5.153 appealable interim measures orders, 5.154–5.156 appeals against order closing interim proceedings, 5.157–5.164 interveners, 5.80–5.85 measures of organisation of procedure, 5.103 measures of inquiry, 5.103 observations by parties second exchange of pleadings, 5.102 time limits, 5.101 oral hearings, 5.104 priority treatment, relationship with, 5.230 purpose, 5.68 substantive test for application of, 5.68 standard of proof, 5.105–5.106 substantive requirements for, 5.108–5.111 balancing interests, 5.139–5.141 fumus boni juris, 5.112–5.120 urgency, 5.121–5.138 third parties, 5.79 time limits, 5.86–5.87, 5.101 Treaty provisions, 5.68–5.69 types of measures, 5.70 interim proceedings, 5.142–5.152, 5.157–5.164 interlocutory proceedings, 2.85, 5.97–5.98 international agreements compatibility with EU law actions for annulment, 3.61 infringement of EU law, 3.288–3.294 opinion proceedings, 3.721–3.729 scope of review, 3.739–3.740 norm of reference validity of EU measures, for, 3.703 opinion proceedings, 3.721, 4.495 admissibility, 3.728 Advocate General, 4.502

appeals, 4.498 consequences, 3.741–3.742 content of requests for, 4.500 costs, 4.497 delivery of opinion, 4.507 Euratom Treaty, 3.723 formalities, 3.737 forum, 3.727 Judge-Rapporteur, 4.502 languages, 4.496 negative opinion, 3.742 oral part of procedure, 4.505–4.506 other legal remedies, relationship with, 3.724 participation, 3.731 peculiarities, 3.725 positive opinion, 3.741 purpose and usefulness, 3.743 requesting party, 3.730 service of requests, 4.501 subject matter, 3.732–3.735 time limits, 3.736 Treaty provisions, 3.722, 3.726 written observations, 4.503 interpretative jurisdiction of Court of Justice of the EU acts outside Court remit, 2.102–2.108 application of EU law, 2.108 Charter of Fundamental Rights of the EU, 2.106 establishment of facts, 2.107 international law, 2.105 interpretation of acts of EU institutions, 2.97, 2.100–2.101 interpretation of acts of bodies, offices and agencies, 2.98–2.99 interpretation of Treaties, 2.95–2.96 national law, 2.102–2.104 interveners appeals, 3.602–3.604, 3.606, 5.261 intellectual property cases, 3.537–3.542, 5.260 interim measures, 5.80–5.85 non-privileged applicants to intervene, 5.241 antitrust cases, 5.251 associations, 5.254–5.258 bodies, offices and agencies, 5.242 direct and existing interest in the case, 5.245–5.253 legal personality, 5.244 legal persons, 5.243, 5.244 merger cases, 5.252 natural persons, 5.243 non-governmental organisations, 5.254, 5.259 regions, 5.243 state aid cases, 5.253 third countries, 5.243

722 Index privileged interveners EEA-EFTA states, 5.240 EFTA Surveillance Authority, 5.240 EU institutions, 5.239 Member States, 5.239 rights, 5.284 procedural rights, 5.285–5.291 no right to alter subject matter, 5.292–5.300 right to appeal, 5.301 intellectual property cases, 5.302 staff cases, 3.482 see also interventions interventions, 5.231–5.232 appeals, 3.602–3.604, 3.606, 5.237, 5.261 confidentiality, 5.271 Court of Justice, 5.282–5.283 General Court, 5.272–5.281 costs, 5.303–5.304, 5.382–5.384 allocation of costs, 5.305–5.309 applications to intervene, 5.396–5.399 taxation of costs, 5.310 direct actions, 5.237 formalities, 5.266–5.268 granting leave to intervene, 5.269–5.270 intellectual property cases, 3.537–3.542, 5.237, 5.260 language, 4.37, 5.268 orders rejecting intervention, 3.593 preliminary rulings, 5.237 Rules of Procedure, 5.233 Statute, 5.233 third party proceedings, 5.234 time limits, 5.262–5.265 voluntary nature, 5.235 see also interveners Inuit I case, 3.179, 3.189 Inuit II case, 3.189, 3.681 invalidity, see preliminary rulings on validity IP Regulations, see Community Design Regulation (6/2002), Community Plant Variety Rights Regulation (2100/94), EU Trade Mark Regulation (2017/1001) joinder of cases confidentiality, 5.314 consequences, 5.312 same subject matter, 5.311 trade mark cases, 5.313 Joint Undertaking Fusion for Energy actions for damages, 3.418 Judge-Rapporteur appeals, 4.422 Court of Justice, 1.44 General Court, 1.67 opinion proceedings, 4.502 orders for reference, 4.462

judges Court of Justice, 1.26 appointment, 1.27 immunity, 1.28 oath, 1.28 restrictions on other positions, 1.28 General Court, 1.49 immunity, 1.51 oath, 1.51 restrictions on other positions, 1.51 see also Advocates General judgment by default, 5.357–5.358 judgments and orders admissibility of preliminary references orders for reference, 2.144–2.152 appealable decisions, 3.591, 3.598 judgments and orders on admissibility, 3.592 judgments and orders on substance, 3.592 orders on interim measures, 3.593 orders rejecting intervention, 3.593 appeals judgments, 4.441–4.442 reasoned order, 4.443–4.446 judgment/order dismissed, 3.639 judgment/order upheld, 3.640 suspension of judgments, 3.585–3.586 applications related to, 5.458 interpretation, 5.463 rectification, 5.459–5.460 revision, 5.464 summary dismissal, 5.465 third-party proceedings, 5.461–5.462 direct actions judgments and orders on inadmissibility, 4.366–4.367 judgments and orders on substance of case, 4.362–4.366 enforcement of judgments, 5.466–5.469 inaudita altera parte orders, 5.96–5.100 infringement proceedings legal force of judgments, 2.53 interim measures proceedings costs, 5.152 granting interim relief, 5.147–5.151 inaudita altera parte orders, 5.96–5.100 interim relief orders, 5.153–5.164 reasoned order, 5.142–5.143 rejection of application, 5.144–5.146 interim relief orders, 5.153 appealable interim measures orders, 5.154–5.156 appeals against order to close interim proceedings, 5.157–5.164 intellectual property cases judgments by default, 4.390 orders for reference content, 4.456 effect on national proceedings, 4.459

Index 723 form of the order, 4.455 language, 4.457 lodging, 4.458 preliminary rulings procedure judgments, 4.476–4.478 orders for reference, 4.455–4.459 reasoned order in simplified procedure, 4.479–4.481 Kik case, 3.683 lack of standing actions for annulment actions for damages, 3.215 incidental review, 3.214 language choice of language, 4.22–4.25 exceptions and derogations infringement actions, 4.35 interventions, 4.37 preliminary rulings, 4.36 requests for derogations, 4.38–4.41 hearings, 4.326 intellectual property cases, 4.375 interventions, 4.37, 5.268 official languages, 4.22 opinion proceedings, 4.496 orders for reference, 4.457 translation, 4.461 use of language, 4.29 Advocate General’s Opinion, 4.33 annexes, 4.31 authentic texts, 4.34 exceptions and derogations, 4.35–4.41 oral pleadings, 4.32 requests for authorisation to use other language, 4.38–4.41 written pleadings, 4.30 legal aid, 5.443 applications for, 5.451–5.452 time limits, 5.453 decisions regarding Court of Justice, 5.456 General Court, 5.454 reasoned refusal to grant, 5.457 designation of legal representation, 5.455 substantive rules, 5.444–5.450 withdrawal of legal aid, 5.450 legal basis access to documents, 5.29–5.31 actions for annulment, 3.03–3.04 adoption of binding acts, 3.16 grounds for review, 3.249–3.250 implementing measures, 3.196 prerogatives, 3.101–3.102 actions for damages, 3.397–3.398 actions for failure to act, 3.344–3.345 appeals, 3.581–3.582

expedited procedures, 5.182, 5.186 infringement actions, 2.01 intellectual property cases, 3.519–3.522, 3.526, 3.529–3.531 interim measures, 5.69, 5.165 interventions, 5.233 opinion proceedings, 3.722 pleas of illegality, 3.646–3.647 preliminary rulings on interpretation, 2.65–2.66 priority treatment, 5.221 staff cases, 3.472, 3.476–3.479 legal certainty interpretation of EU law, 2.63 limitation of temporal effects, 2.54 infringement of EU law, 3.280 legal personality capacity to bring proceedings, 3.105–3.108 companies, 3.106 national law, 3.106 subnational entities, 3.108 legal persons, see natural and legal persons legitimate expectations, 3.281 liability action for damages lawful acts, 3.449–3.451 unlawful act or conduct, 3.430 concurrent liability determining jurisdiction, 3.408 exhaustion of national remedies, 3.409 lis pendens, 3.410 European Union contractual liability, 3.402–3.405 non-contractual liability, 3.406–3.407 lis pendens actions for damages, 3.410 admissibility, relationship with, 5.340 loss of profits action for damages, 3.462 lump sum or penalty payments, 2.56–2.62 manifest error of assessment, 3.312–3.313 Marquis Energy case, 3.146 measures of inquiry, see inquiry, measures of measures of organisation of procedure, see organisation of procedure, measures of Member States actions for annulment applicants, as, 3.94–3.98 defendants, as, 3.91–3.92 actions for damages, 3.426 actions for failure to act applicants, as, 3.381 defendants, as, 3.379 appeals appellants, 3.601–3.605 respondents, 3.612

724 Index failure to fulfil obligations, 2.24 assessment of failure, 2.31 failure as a consequence of negative behaviour, 2.28 failure as a consequence of positive behaviour, 2.27 failure stemming from facts, 2.26 failure stemming from instruments, 2.25 failure to notify measures, 2.30 failure to transpose a directive, 2.29 infringement proceedings, 2.01–2.06 applicants, 2.15–2.18 conventions between Member States, 2.23 defences invoked, 2.32–2.34 defendants, 2.07–2.14 failure to fulfil obligations, 2.19–2.34 government branch responsibility, 2.10 litigation phase, 2.45–2.52 national responsibility, 2.08 origin of infringement, 2.09 pre-litigation, 2.35–2.43 result of proceedings, 2.53–2.55 sanctions, 2.56–2.62 time limits, 2.44 see also infringement proceedings opinion proceedings, 3.730–3.371 pleas of illegality, 3.666–3.667 preliminary rulings on interpretation, 2.63–2.71 admissibility, 2.109–2.152 effects, 2.153–2.165 jurisdiction, 2.95–2.108 requests for, 2.72–2.94 see also preliminary rulings on interpretation staff cases interveners, as, 3.470, 3.482 see also national courts merger cases actions for annulment applicant’s market position, 3.168 interventions, 5.252 Microban case, 5.226 milk quota cases, 3.443 misuse of powers actions for annulment, 3.301–3.303 grounds for review, 3.676–3.677 Montessori case, 3.147, 3.187 Nachi case, 3.329 national courts enforcement of EU law, 1.07 non-reviewable acts, 3.63 preliminary rulings and the duty to refer, 2.72, 3.696–3.699 consequences of not complying, 2.91–2.94 discretion of national courts, 2.73–2.80 exceptions, 2.87–2.91 obligation of courts of last instance to refer, 2.81–2.86 see also Member States

natural and legal persons actions for annulment, 3.105–3.108 actions for failure to act, 3.382–3.383 appeals, 3.601 interveners, 3.613, 5.243 language of cases, 4.23 pleas of illegality, 3.663–3.665 new evidence direct actions rejoinders, 4.253–4.255 reply, 4.243–4.249 new facts, 3.48, 3.563, 4.230–4.233, 4.304 new pleas in law inadmissible appeals, 3.625 direct actions measures of inquiry, 4.304 measures of organisation of procedure, 4.304 rejoinders, 4.253–4.255 reply, 4.227–4.242 Nice Treaty, 1.15, 1.16, 1.21, 2.67, 3.100, 3.101 no need to adjudicate, 5.347–5.348 costs, 5.350, 5.387–5.388 inadmissibility distinguished, 5.349 non-contractual liability of the EU, 3.406–3.407 Northern Ireland Department of Agriculture and Rural Development case, 3.199 nullum crimen sine lege, nulla poena sine lege doctrine, 3.286 oath and immunity Court of Justice, 1.28 General Court, 1.51 Office for Harmonisation in the Internal Market (OHIM), 3.523, 3.636 opinion procedure, see international agreements oral part of procedure appeals, 4.440 closing, 4.359 direct actions hearings, 4.305, 4.315, 4.344–4.346, 4.353–4.356 measures of organisation of procedure, 4.282 expedited procedure, 5.215 intellectual property cases, 4.399–4.400 opinion proceedings, 4.505–4.506 preliminary rulings, 4.473–4.475 reopening, 4.353–4.356 orders, see judgments and orders organisation of procedure, measures of 4.277 adversarial principle, 4.276 appeals, 4.438–4.439 applications for documents, 4.274 Court of Justice Rules of Procedure, 4.278 General Court Rules of Procedure, 4.273, 4.279 interim measures, 5.103 legal sources, 4.269 measures of inquiry distinguished, 4.270 new pleas in law, 4.304

Index 725 oral part of procedure, 4.282 preliminary rulings, 4.472 proposing parties, 4.272 questions and requests for documents, 4.281, 4.301–4.304 responses, 4.284 third entities, 4.275 timing, 4.280 when adopted, 4.271 patents, 3.523, 3.531 see also intellectual property rights penalty payments, 2.56–2.62 Pioneer Hi-Bred International case, 3.361 plant varieties intellectual property cases, 3.522 see also Community Plant Variety Office; intellectual property rights Plaumann formula, 3.161 pleas in law appeals, 4.421 direct actions applications, 4.174–4.195 defences, 4.215–4.218 measures of inquiry, 4.304 measures of organisation of procedure, 4.304 rejoinders, 4.253–4.255 reply, 4.227–4.242 see also new pleas in law pleas of illegality, see illegality, pleas of Police and Judicial Cooperation in Criminal Matters (PJCCM), 2.05, 3.83, 3.726 Practice Directions of the Court of Justice, 4.12 Practice Rules of the General Court, 4.12 pre-litigation procedure actions for failure to act, 3.349–3.357 time limits, 3.358 infringement actions, 2.35–2.43 time limits, 2.44 intellectual property cases, 3.543–3.547 time limits, 3.548 simplification, 2.05 staff cases, 3.486–3.491 time limits, 3.495 Treaty of Lisbon, 2.05 preliminary reports appeals, 4.436 direct actions, 4.258 actions by the Courts, 4.266–4.268 content, 4.260–4.264 reports for hearings, 4.265 timing, 4.259 preliminary rulings, 4.471 preliminary rulings on interpretation, 2.63, 4.19 actions for damages, 2.70 actions for failure to act, 2.70

admissibility of a reference, 2.109, 5.345–5.346 ‘court’ or ‘tribunal’, 2.110–2.122 features of referring body, 2.109–2.126 ‘Member State’, 2.123–2.126 order for reference, 2.144–2.152 proceedings before referring body, 2.127–2.130 binding nature, 2.156–2.158 choice of language, 4.27 content, 3.677 costs, 5.440–5.442 duty to refer, 2.72 consequences of not complying, 2.91–2.94 discretion of national courts, 2.73–2.80 exceptions, 2.87–2.91 obligation of courts of last instance to refer, 2.81–2.86 effect, 2.153–2.155 enforcement, 2.69 inadmissibility, 5.345–5.346 infringement actions, 2.69 interpretation of Treaties, 2.95–2.96 interpretation of acts of EU institutions, 2.97, 2.100–2.101 interpretation of acts of bodies, offices and agencies, 2.98–2.99 interventions, 5.237 measures of inquiry, 4.472 purpose indirect control of Member State obligations, 2.64 uniform interpretation of EU law, 2.64 requests for, 2.72 consequences of not complying, 2.91–2.94 discretion of national courts, 2.73–2.80 exceptions, 2.87–2.91 obligation of courts of last instance to refer, 2.81–2.86 retroactive effect, 2.159–2.165 simplified procedure, 4.479–4.481 Treaty provisions, 2.65–2.68 see also preliminary rulings procedure preliminary rulings on validity of EU measures, 3.690–3.692 admissibility, 3.694 assessment of validity at time of adoption, 3.704 international agreements and norm of reference, 3.703 interpretation issues, 3.706 measures of inquiry, 3.705 Treaty provisions, 3.702 consequences, 3.712 EU institutions and bodies, for, 3.718–3.720 national courts, for, 3.713–3.717 decision to request, 3.696–3.697 erga omnes effect, 3.715 forum, 3.693, 3.697 pleas of illegality, relationship with, 3.649 retroactivity, 3.716

726 Index temporal effects, 3.716–3.717 validity of acts of EU institutions, 3.700 validity of primary EU law, 3.701 see also preliminary rulings procedure preliminary rulings procedure, 4.452–4.454 closure of case expedited procedure, 4.483–4.487 judgment, by, 4.476–4.478 priority treatment, 4.494 reasoned order in simplified procedure, 4.479–4.481 simplified procedure, 4.479–4.481 urgent procedure, 4.488–4.493 expedited procedure, 4.483–4.487 measures of organisation of procedure, 4.472 oral part of procedure, 4.473–4.475 orders for reference when lodging content, 4.456 effect on national proceedings, 4.459 form of the order, 4.455 Judge-Rapporteur, designation of, 4.462 language, 4.457 lodging, 4.458 Official Journal, publication in, 4.460 registration, 4.460 service, 4.461 translation, 4.461 participation, 4.463–4.466 preliminary reports, 4.471 urgent preliminary rulings, 2.63, 4.488–4.493 written observations, 4.467–4.470 Presidents Court of Justice, 1.29, 1.42 Chambers, 1.36 General Court, 1.52, 1.61, 1.65 presumption of innocence, 3.285 primacy of EU law, 1.05 priority treatment Commission v Poland (Białowieża forest) case, 5.226 competence, 5.222 consequences, 5.227 duty to state reasons, 5.228 expedited procedure, relationship with, 5.217, 5.229 interim relief, relationship with, 5.230 Microban case, 5.226 practice, 5.223 preliminary rulings, 4.494 procedural requirements, 5.224 Rules of Procedure, 5.221 substantive requirements, 5.225 see also expedited procedure private enforcement, 1.07 privileged applicants actions for annulment, 3.05, 3.94–3.98 actions for failure to act, 3.373, 3.381 appeals, 3.601, 3.605 privileged interveners, 5.239–5.240

proportionality principle actions for annulment, 3.247, 3.283 staff cases, 3.515 public enforcement, 1.06 public policy matters appeals, 3.626 quorum, 1.39 reasoned opinion, 2.40–2.43 reasoned orders closure of proceedings appeals, 4.443–4.446 preliminary rulings procedure, 4.479–4.481 interim measures proceedings, 5.142–5.143 simplified preliminary rulings procedure, 4.479–4.481 recovery of costs default interest, 5.417 disputes, 5.405–5.406 recoverable costs, 5.418 agents, advisers and lawyers, 5.426–5.433 evidence substantiating claims, 5.425, 5.435 interveners, 5.433 litigation insurance, 5.437 measures of inquiry, 5.419 necessarily incurred for purposes of proceedings, 5.422–5.439 office expenses, 5.436 subsistence, 5.420, 5.434–5.435 sums paid to witnesses and experts, 5.419–5.421 travel expenses, 5.420, 5.434–5.435 VAT, 5.439 structure of proceedings, 5.410–5.415 taxation proceedings, 5.416 time limits, 5.407–5.409 see also recovery of costs reform of the General Court, 1.16–1.17 Registrar, 4.55 Court of Justice, 1.30, 1.47 General Court, 1.53, 1.68 regulatory acts actions for annulment by individual applicants legal history, 3.174–3.177 not entailing implementing measures, 3.174–3.199 standing of individual applicants, 3.131, 3.137, 3.174 automatic implementing measures, 3.193 Commission decisions on state aid schemes, 3.187 decisions as, 3.186 definition, 3.178 delegated acts as, 3.183 effective judicial protection, 3.188 entailing implementing measures, 3.194–3.197 general application condition, 3.180 implementing acts as, 3.184 Inuit I case, 3.179, 3.189

Index 727 Inuit II case, 3.189 non-classified regulations as, 3.185 non-legislative condition, 3.181–3.182 not entailing implementing measures, 3.190 assessment, 3.194–3.197 automatic implementing measures, 3.193 case law, 3.192 direct and incidental review, 3.191 direct concern and, 3.198–3.199 legal basis, 3.196 legal effects, 3.195 reply and rejoinder, 4.432–4.435, 5.332 representation of parties admissibility, relationship with, 5.343 direct actions, 4.42–4.50 intellectual property cases, 4.376 preliminary rulings, 4.51–4.52 rights and obligations of representatives conduct and exclusion, 4.54 immunities, 4.53 privileges, 4.53 res judicata actions for annulment, 3.338–3.341 actions for damages, relationship with, 3.413 admissibility, relationship with, 5.341 retroactive effect of preliminary rulings, 2.159 limitations, 2.160–2.165 reviewable acts actions for annulment, 3.08–3.12, 3.149 binding acts, 3.13–3.52 confirmatory acts, 3.44–3.52 declarations of intent, 3.56 informative/interpretative acts, 3.54–3.55 internal rules/instructions/guidelines, 3.57–3.58 letters/email/communications, 3.29–3.31 oral statements, 3.27 physical acts, 3.28 preparatory/preliminary/intermediary acts, 3.38–3.43 separately reviewable acts, 3.11 withdrawn/replaced/expired/annulled/non-existent acts, 3.12 right to be heard, 3.252, 5.06–5.08 right to effective judicial protection, 3.194, 3.717, 5.49, 5.60 right to property, 3.287 rights of the defence, 3.266–3.268, 3.284, 4.177, 4.195, 5.06 Romana Tabacchi case, 4.238 rule of law, 1.04 Rules of Procedure Court of Justice, 4.03, 4.05–4.07 appeals, 4.403–4.404 Euratom Treaty, 4.21 expedited procedure, 5.186–5.187 interventions, 5.233

measures of organisation of procedure, 4.278 orders for reference, 2.146–2.147 structure, 4.06 supplementary rules, 4.07 General Court, 4.08–4.10 adversarial principle, 4.09, 4.296, 5.20, 5.28, 5.44, 5.52 confidential evidence, 5.45–5.52 expedited procedure, 5.186–5.187 interventions, 5.233 measures of organisation of procedure, 4.273, 4.279 sensitive evidence, 5.53–5.65 structure, 4.11 treatment of confidential evidence, 5.45–5.52 interventions in direct actions, 5.231–5.232, 5.233 orders for reference, 2.146–2.147 priority treatment, 5.221 time limits, 4.74–4.78 calculation of time limits, 4.79–4.92 documents filed out of time, 4.94–4.99 excusable error, 4.97 force majeure, 4.96 requesting extensions, 4.93 unforeseeable circumstances, 4.95 use of language, 4.29–4.34 exceptions and derogations, 4.35–4.41 Ryanair case, 3.362 sanctions infringement proceedings Art. 260(2) TFEU, 2.56–2.58 Art. 260(3) TFEU, 2.59–2.60 failure to comply, 2.56 judicial discretion, 2.62 lump sum and penalty payments, 2.61–2.62 objectives, 2.57 secondary legislation, 3.252, 3.295 settlement amicable settlement, 5.355 costs, 5.392 staff cases, 5.356 severability partial annulment, 3.97, 3.211, 3.318–3.319 simplified preliminary ruling procedure, 4.479–4.481 sincere cooperation principle, 2.33, 5.04 Eurobolt judgment, 5.26 Umbach judgment, 5.25 Zwartfeld order, 5.24 Spain v Council (fishing effort) case, 3.667 special agreement, see arbitration clause cases staff cases, 3.470, 4.15, 4.16 abusive litigation, 3.485 admissibility, 3.473 appeals, 3.483 applicants, 3.480 choice of language, 4.23

728 Index claims for annulment, 3.498–3.508 effects, 3.515 grounds, 3.514 proportionality, 3.515 re-adoption after annulment, 3.516 claims for damages, 3.517 compensation for damage, 3.518 class actions, 3.484 correspondence, rule of, 3.513 damage claims, 3.405 defendants, 3.481 formalities, 3.493–3.495 forum, 3.471 interveners, 3.482 legal basis, 3.472, 3.476–3.479 nature of litigation, 3.475 pre-litigation procedure, 3.486–3.491, 3.495 settlement, 5.356 substance, 3.474 claims for annulment, 3.498–3.508 claims for damages, 3.509–3.512 heads of claim, 3.496–3.497 time limits, 3.492 standing admissibility, relationship with, 5.337 standing (actions for annulment) associations bringing actions for annulment, 3.200 standing derived from members, 3.201–3.202 standing based on interest of its own, 3.203–3.205 Committee of the Regions, 3.99 consortia bringing actions for annulment, 3.207 Council of the EU, 3.94 Court of Auditors, 3.99 defence of prerogatives, 3.101–3.104 European Central Bank, 3.99 European Commission, 3.94 European Parliament, 3.94 individual applicants admissibility, 3.133 challenging ‘regulatory acts’, 3.174–3.199 challenging acts addressed to them, 3.133–3.135 challenging acts not addressed to them, 3.136–3.173 direct concern, 3.140–3.157 individual concern, 3.136, 3.158–3.173 partial standing, 3.208–3.213 procedural rights and guarantees, 3.165–3.166 regulatory acts, 3.131 standing of associations, 3.200–3.205 standing of trade unions and consortia, 3.206–3.207 succession, 3.135 Treaty provisions, 3.128–3.132 individual concern, 3.136, 3.158–3.164 economic situation, 3.167 intellectual property rights, 3.170–3.173 market position, 3.168–3.169 procedural rights and guarantees, 3.165–3.166

Member States, 3.94–3.97 partial standing, 3.208–3.213 privileged applicants, 3.94–3.98 regulatory acts, 3.131 semi-privileged applicants, 3.94, 3.99–3.104 third countries, 3.98 trade unions bringing actions for annulment, 3.206–3.207 standing (actions for failure to act) actions for annulment compared, 3.383 non-privileged applicants, 3.382–3.385 privileged applicants, 3.381 state aid cases actions for annulment applicant’s market position, 3.168 interventions, 5.253 state liability infringement proceedings, 2.55 statements in intervention, 4.251, 5.216, 5.286–5.291 Statute of the Court of Justice of the EU, 3.582–3.586, 4.04 costs, 5.359 expedited procedure, 5.182 interventions, 5.233 stay of proceedings, 5.315 effect, 5.319 General Court staying proceedings, 5.316 length of suspension, 5.320 parallel cases before both EU Courts, 5.316 proper administration of justice, 5.317 request of parties, 5.318 same issue of interpretation, 5.316 same relief sought before both EU Courts, 5.316 subsidiarity principle, 3.247, 3.258, 3.681 succession, 3.135, 4.114 sufficiently serious breach requirement, 3.438 complexity, 3.445 elements considered by Courts, 3.439, 3.444 excusable error, 3.447 Schneider III case, 3.448 judicial discretion, 3.440 limited discretion, 3.441 margin of discretion, 3.442 Milk Quota case, 3.443 overriding public interests, 3.446 suspensory effect of actions and appeals, 3.07, 3.525, 3.585, 3.587, 3.737, 4.408 Sweden v Commission (biocidal products) case, 3.363, 3.367 TBT Agreement, 3.292 third countries actions for annulment, 3.60, 3.87, 3.98 expedited procedure, 5.200 interventions, 5.243

Index 729 third parties actions for annulment, 3.24 actions for damages, 3.458 interim measures, 5.79 interim relief orders, 5.79 interventions, 5.234–5.235 judgments and orders, 5.461–5.462 pleas of illegality, 3.688 representation of parties, 4.47 time limits actions for annulment, 3.219–3.221 amendments, 3.235 awareness of contested act, 3.232–3.324 not bringing an action in good time, 3.236–3.239 notification, 3.230–3.231 publication of contested acts, 3.222–3.229 actions for damages, 3.423–3.425 relationship with, 3.412 actions for failure to act bringing Court actions, 3.358 pre-litigation procedure, 3.353, 3.357 appeals, 3.617 cross-appeals, 4.428–4.430 responses, 4.427 applications for legal aid, 5.453 bringing proceedings, 4.74–4.75 expedited procedure, 5.192 infringement proceedings, 2.44 intellectual property cases, 3.548 interim measures, 5.86–5.87, 5.101 interventions, 5.262–5.265 joining proceedings, 4.74–4.75 opinion proceedings, 3.736 pleas of illegality, 3.675 Rules of Procedure, 4.74–4.78 calculation of time limits, 4.79–4.92 documents filed out of time, 4.94–4.99 excusable error, 4.97 force majeure, 4.96 requesting extensions, 4.93 unforeseeable circumstances, 4.95 staff cases, 3.492 Tobacco advertisement case, 3.248 trade mark cases forum, 3.524–3.525 intellectual property cases, 3.521, 3.543 joinder of cases, 5.313 scope of trade mark, 3.543 see also European Union Intellectual Property Office; intellectual property rights trade unions actions for damages, 3.420 standing, 3.206 transfer of ownership intellectual property rights, 3.536, 3.542

translation, 4.29–4.34 accuracy, 4.184 clarity, 4.187 costs, 5.436 excessive translation, 5.364 orders of reference, 4.461 rectification, 5.460 Treaty of Lisbon actions for annulment, 3.03, 3.76, 3.128–3.132 regulatory acts, 3.131 actions for failure to act, 3.344 opinion proceedings, 3.726 pleas of illegality, 3.647 Treaty on European Union (TEU) claims for damages against, 3.433 Court of Justice of the EU, 1.13 Union Law, 3.432 Treaty on the Functioning of the EU (TFEU) actions for annulment, 3.75–3.76 Article 263, 3.04, 4.151–4.152, 4.155 actions for damages Article 268, 3.397, 4.154, 4.155 Article 340, 3.398, 4.154, 4.155 actions for failure to act Article 265, 3.345, 4.153 Article 266, 3.390 admissibility of a reference, 2.109 ‘court’ or ‘tribunal’, 2.110–2.122 features of referring body, 2.109–2.126 ‘Member State’, 2.123–2.126 order for reference, 2.144–2.152 proceedings before referring body, 2.127–2.130 appeals Article 256, 3.581 arbitration clauses Article 272, 4.157 Article 218, 3.722 Article 256, 3.581 Article 258, 2.02, 4.149 Article 259, 2.03 Article 260, 2.04, 2.56–2.60, 4.150 Article 262, 3.529 Article 263, 3.04, 3.707–3.711, 4.151–4.152, 4.155 Article 265, 3.345, 4.153 Article 266, 3.390, 3.718 Article 267, 2.65, 3.691, 3.707–3.711 Article 268, 3.397, 4.154, 4.155 Article 270, 3.472, 3.476, 3.478, 4.156 Article 272, 4.157 Article 277, 3.646 Article 278, 5.68–5.69 Article 280, 5.466 Article 299, 5.466 Article 340, 3.398, 4.154, 4.155 claims for damages against, 3.433 Court of Justice of the EU division of competences, 1.18

730 Index enforcement of judgments, 5.466 infringement proceedings, 2.05 Article 258, 2.02, 4.149 Article 259, 2.03 Article 260, 2.04, 2.56–2.60, 4.150 sanctions, 2.56–2.60 intellectual property cases Article 262, 3.529 interim measures Article 278, 5.68–5.69 opinion proceedings, 3.722 pleas of illegality Article 277, 3.646 preliminary rulings on interpretation Article 267, 2.65 preliminary rulings on validity of EU measures Article 267, 3.691 Articles 267 and 263, relationship with, 3.707–3.711 assessment of validity, 3.702 staff cases Article 270, 3.472, 3.476, 3.478, 4.156 standing to bring actions for annulment, 3.128–3.132 three variants, 3.133–3.199 TRIPS, 3.292 TWD Textilwerke Deggendorf case, 3.709 Umbach case, 5.25 Unified Patent Court Agreement, 2.124 United Nations Convention for the Law of the Sea (UNCLOS), 3.292 unlawful acts/conduct actions for damages, 3.429 awards thresholds, 3.452 Bergaderm case, 3.431

breach of rule of Union law, 3.432–3.433 liability, 3.430 rules conferring rights on individuals, 3.434–3.438 sufficiently serious breach, 3.438–3.448 EU institutions or bodies review of legality, 1.11–1.12 hierarchy of norms, 1.10 direct review of legality, 1.11 incidental review of legality, 1.11 urgent preliminary ruling procedure, 2.63, 4.488–4.493, 5.181 Vereniging Milieudefensie case, 3.685 Vice-Presidents Court of Justice, 1.29, 1.43 General Court, 1.52, 1.66 Volkswagen case, 2.12 Vreugdenhil II case, 3.436 waiver of right to appeal, 3.615 Windfinder case, 3.575 withdrawal, 5.353 costs, 5.354, 5.389–5.391 witnesses, 4.297–4.298 recoverable costs, 5.418–5.421 World Trade Organization (WTO), 3.437 WTO agreements, 3.292–3.294 Yusuf and Al Barakaat case, 3.656 Zwartfeld order, 5.24