Case C‑122/16 P

British Airways plc

v

European Commission

(Appeal — Competition — Agreements, decisions and concerted practices — European airfreight market — Commission decision concerning agreements and concerted practices in respect of several elements of the pricing of airfreight services — Defective statement of reasons — Plea involving a matter of public policy raised by the EU courts of their own motion — Prohibition on ruling ultra petita — Form of order set out in the application at first instance seeking the partial annulment of the decision at issue — The General Court of the European Union prohibited from annulling the decision at issue in its entirety — Article 47 of the Charter of Fundamental Rights of the European Union — Right to an effective remedy)

Summary — Judgment of the Court (Grand Chamber), 14 November 2017

1. Appeal—Formal requirements—Reference to General Court’s judgment that is being appealed against—Obligation to annex the judgment being appealed against to the appeal—No such obligation

   (Rules of Procedure of the Court of Justice, Art. 168(1)(b))

2. Appeal—Grounds—Form of order seeking the partial annulment of the operative part of the General Court’s judgment—Admissibility

   (Rules of Procedure of the Court of Justice, Art. 169(1))

3. Actions for annulment—Jurisdiction of the EU judicature—Scope—Prohibition on ruling ultra petita—Examination by the court of its own motion of a plea involving a matter of public policy—Lawfulness—Whether it is possible for the EU judicature to annul the decision at issue to an extent that goes beyond the annulment sought—Precluded

   (Art. 263 TFEU)

4. Actions for annulment—Jurisdiction of the EU judicature—Scope—Judicial review of decisions adopted by the Commission in competition matters—Prohibition on ruling ultra petita—Breach of the principle de judicial protection—No such breach

   (Art. 263, TFEU; Council Regulation No 1/2003, Art. 31)

1.  With regard to the admissibility of an appeal against a decision of the General Court, Article 168(1)(b) of the Court’s Rules of Procedure of 25 September 2012 provides that the appeal is to contain a reference to the decision of the General Court appealed against, without requiring that that decision be attached to the appeal. Therefore, since those Rules of Procedure entered into force on 1 November 2012, there is no longer any requirement for the General Court’s judgment that is being appealed against to be annexed to the appeal, a simple reference to that decision being sufficient.

   (see paras 46-48)

2.  See the text of the decision.

   (see paras 50-53)

3.  Under the system governing judicial review proceedings before the EU courts, it is the parties that take the initiative in pursuing the case and delimiting its subject matter, inter alia by identifying in the form of order sought the act, or part of the act, which they intend to submit to judicial review. Since the court reviewing the legality of an act cannot rule ultra petita, it cannot grant an annulment which goes beyond that sought by the applicant

   It is true that the EU courts must raise of their own motion pleas involving matters of public policy. Nonetheless, the fact that the court reviewing legality has jurisdiction to raise of its own motion a plea involving matters of public policy does not mean that it has jurisdiction to amend of its own motion the form of order sought by an applicant. Indeed, while the pleas constitute the essential basis of the form of order sought in an application, they are, nonetheless, necessarily separate from the form of order sought, which defines the limits of the dispute on which the EU courts are asked to rule.

   As a consequence, while, by raising of their own motion a plea involving matters of public policy which, a priori, has not been put forward by the parties, the EU courts do not go beyond the scope of the dispute that has been brought before them, or in any way infringe the rules of procedure relating to the presentation in the application of the subject matter of the dispute and the pleas in law, the position would be different if, following their substantive examination of the contested measure, those courts, on the basis of a plea raised of their own motion, were to annul a measure to an extent that went beyond the annulment sought in the form of order they were duly requested to make, on the ground that such an annulment was necessary to remedy the unlawfulness established of their own motion in carrying out their substantive analysis.

   (see paras 81, 87-90)

4.  As regards review by the EU courts of Commission decisions imposing fines for breach of the competition rules, the judicial review provided for under Article 263 TFEU, together with the unlimited jurisdiction in respect of the amount of the fine provided for under Article 31 of Regulation No 1/2003 involves review by those courts of both the law and the facts, and means that they have the power to assess the evidence, to annul the contested decision and to alter the amount of the fine.

   In that context, that the fact that the judicial review carried out by the EU courts is limited to the claims of the parties, as set out in the forms of order sought in their written pleadings, is not contrary to the principle of effective judicial protection, as that principle does not require those courts to extend their review to cover aspects of a decision that have not been put in issue in the dispute before them.

   (see paras 104, 105)