OPINION OF ADVOCATE GENERAL MENGOZZI delivered on 30 May Case C-122/16 P. British Airways plc v European Commission

OPINION OF ADVOCATE GENERAL MENGOZZI delivered on 30 May 2017 1 Case C-122/16 P British Airways plc v European Commission (Appeal Competition Agreements, decisions and concerted practices Admissibility of appeal before the Court Second paragraph of Article 21 and second paragraph of Article 56 of the Statute of the Court of Justice of the European Union Definition of unsuccessful Article 169(1) and Article 170(1) of the Rules of Procedure of the Court Principle of ne ultra petita Public policy issue raised of the EU judicature s own motion Defective statement of reasons Limits on the EU Courts power of annulment Principle of effective judicial protection) 1 Original language: French. EN

BRITISH AIRWAYS v COMMISSION 1. When the EU judicature raises an issue of public policy of its own motion, is its power of annulment limited by the principle of ne ultra petita? Alternatively, in such a case, is the EU judicature able, or even required, as an exception to that principle, to draw all the appropriate legal conclusions flowing from giving effect to the plea raising the issue of public policy thus, potentially, going beyond the forms of order sought by the parties? 2. That is, in essence, the basic question to be addressed in this case, which concerns an appeal by which British Airways plc ( BA ) seeks to have set aside the judgment of the General Court of the European Union of 16 December 2015, British Airways v Commission 2 ( the judgment under appeal ). 3. The background to this case is somewhat unusual. BA brought an action before the General Court seeking the annulment in part of Commission Decision C(2010) 7694 final of 9 November 2010 penalising its participation in an anticompetitive agreement in the airfreight sector ( the contested decision ). 3 However, the General Court did not examine any of the pleas in law put forward by BA in its action. Instead, it raised of its own motion a plea alleging defective reasoning vitiating the contested decision in its entirety. Nonetheless, since it considered itself to be constrained by the principle of ne ultra petita, the General Court annulled the decision with respect to BA only within the limits of the latter s application for partial annulment. BA challenges that approach in its appeal and claims that the General Court should have annulled the contested decision in its entirety. 4. This case affords the Court the opportunity to clarify the extent of the powers of the EU judicature, particularly where, in proceedings for judicial review, it has raised an issue of public policy of its own motion. 5. The case exposes the tensions between the fundamental and occasionally conflicting requirements that each legal order must meet, that is, on the one hand, the requirement of legality, which underpins the power/duty of the EU judicature to raise public policy issues of its own motion and, on the other, the requirement of stability in legal relations, considered in the specific context of this case, in connection with the delimitation of judicial powers stemming from the principle that the subject matter of an action is defined by the parties, of which the principle of ne ultra petita is a corollary. 6. In order to address the fundamental question arising in this case, a question which is, moreover, preceded by questions that are not self-evident concerning the admissibility of BA s appeal, the Court will have to strike a fair balance between those requirements, by weighing up the different competing principles in question. 2 3 T-48/11, not published, EU:T:2015:988. Decision relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39258 Airfreight). 1

OPINION OF MR MENGOZZI CASE C-122/16 P I. Background to the dispute and the contested decision 7. In response to an application for immunity 4 submitted in 2005 by companies belonging to the Deutsche Lufthansa group, the European Commission initiated an investigation into the existence of anticompetitive conduct in the airfreight market. 8. The investigation concluded with the adoption, on 9 November 2010, of the contested decision, which the Commission addressed to 21 carriers, including BA. 9. In that decision, the Commission found that, by participating in the coordination of certain elements of the price to be charged for airfreight services, 5 BA and other airlines had infringed Article 101 TFEU, Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport, signed on 21 June 1999 in Luxembourg, approved on behalf of the Community by Decision 2002/309/EC, Euratom, of the Council and of the Commission as regards the Agreement on Scientific and Technological Cooperation of 4 April 2002 on the conclusion of seven Agreements with the Swiss Confederation (OJ 2002 L 114, p. 1). On that basis, the Commission ordered BA to pay a fine of EUR 104 040 000. II. The procedure before the General Court and the judgment under appeal 10. On 24 January 2011, BA brought an action before the General Court seeking the annulment in part of the contested decision. 6 In support of its action, BA put forward seven pleas in law. All addressees of the contested decision, except the airline Qantas Airways Ltd., also challenged the contested decision before the General Court. 11. By way of measure of organisation of procedure, the General Court asked the parties to submit observations on whether there was any contradiction between the grounds of the contested decision and the first four articles of its operative part. 4 5 6 The application for immunity was submitted under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3). The conduct penalised involved anticompetitive contact concerning a fuel surcharge, a security surcharge and the payment of commission on the surcharges (see paragraph 5 of the judgment under appeal). Specifically, in its action before the General Court, BA sought the annulment of the contested decision in so far as it (i) found that BA had participated in the refusal to pay commission; (ii) found that BA had participated in the infringement of the competition rules between 22 January 2001 and 1 October 2001; (iii) found that the infringement concerned Hong Kong, Japan, India, Thailand, Singapore, South Korea and Brazil; and (iv) imposed a fine on BA. 2

BRITISH AIRWAYS v COMMISSION 12. The General Court delivered the judgment under appeal on 16 December 2015. 7 13. In that judgment, the General Court noted, first of all, that it has consistently been held that an absence of or inadequate statement of reasons constitutes an infringement of essential procedural requirements for the purposes of Article 263 TFEU and is a ground involving a matter of public policy which may, and even must, be raised by the EU judicature of its own motion. 8 14. Next, without examining any of the seven pleas in law put forward by BA, the General Court found that there was a contradiction between the grounds and the operative part of the contested decision, 9 as well as significant internal inconsistencies within the grounds themselves. 10 15. Lastly, the General Court observed that the internal inconsistencies in the contested decision had infringed BA s rights of defence, in that they had not made it possible for it to understand the nature and scope of the infringement or infringements found and had prevented the General Court from exercising its power of review. 11 16. Following that analysis, the General Court concluded that the contested decision was vitiated by a defective statement of reasons. 17. However, the General Court held that, since the EU judicature may not rule ultra petita and any judgment it delivers annulling a decision cannot go further than the annulment sought by the applicant, the finding that the statement of reasons was defective could not lead, in that instance, to the annulment of the contested decision in its entirety in so far as it concerns BA. 12 18. In paragraph 90 of the judgment under appeal, the General Court stated that, during the hearing, BA had indeed claimed that the Court could annul the 7 8 9 10 11 12 On the same day, the General Court delivered judgment in the actions brought by the other carriers concerned which also sought to challenge the contested decision. In each of those judgments, the General Court annulled the decision in its entirety with respect to the airline that had brought the action in question (see, among others, judgment of 16 December 2015, Air Canada v Commission, T-9/11, not published, EU:T:2015:994). Paragraph 29 of the judgment under appeal. See paragraphs 41 to 70 of the judgment under appeal. In particular, the General Court pointed out that, although the grounds of the contested decision described a single and continuous infringement in relation to all of the routes covered by the cartel and in which all of the carriers concerned allegedly participated, the operative part of that decision could be interpreted in two different ways (see, specifically, paragraph 61 of the judgment under appeal). Paragraphs 71 to 74 of the judgment under appeal. Paragraphs 76 to 85 of the judgment under appeal. Paragraphs 87 and 88 of the judgment under appeal. 3

OPINION OF MR MENGOZZI CASE C-122/16 P contested decision in its entirety, on the ground that the operative part did not reflect the statement of reasons for that decision. However, the General Court found that even if it were possible to consider that BA had implicitly expressed an intention to amend the form of order it was seeking and to seek, at the hearing, the complete annulment of the contested decision in so far as it concerned BA: (i) an amendment of the form of order sought is subject to the strictest requirements as regards its precision and content, and must be done formally; and (ii) the failure to state reasons vitiating the contested decision was apparent from an actual reading of that decision and could not be considered to be a matter of law or of fact which came to light in the course of the written procedure. 19. In those circumstances, the General Court annulled the contested decision within the limits defined by the form of order set out in the application lodged by BA. 13 20. On 17 March 2017, the Commission adopted a fresh decision on the anticompetitive agreement covered by the contested decision. As regards BA, the decision reinstated the parts of the contested decision that had been annulled in the judgment under appeal. III. Forms of order sought by the parties 21. By its appeal, BA asks the Court, first, to set aside the judgment under appeal in so far as that judgment limits the scope of the annulment of the contested decision to the form of order sought by it in its action at first instance; secondly, to set aside paragraph 1 of the operative part of the judgment under appeal; thirdly, to annul the contested decision in its entirety; and, fourthly, to order the Commission to pay the costs of the appeal. 22. The Commission contends that the Court should dismiss the appeal and order BA to pay the costs. IV. Assessment 23. BA puts forward two pleas in law in support of its appeal. By its first plea, it claims that the General Court erred in law in considering itself restricted by the principle of ne ultra petita. According to BA, since the General Court raised a public policy issue of its own motion and found there to be a defect vitiating the contested decision in its entirety, it should have annulled the decision completely. The second plea, raised in the alternative, alleges infringement of the right to effective judicial protection provided for in Article 47 of the Charter of Fundamental Rights of the European Union ( the Charter ). 13 Paragraph 92 of the judgment under appeal and paragraph 1 of the operative part. 4

BRITISH AIRWAYS v COMMISSION 24. The Commission raises, as a preliminary issue, objections that the appeal is inadmissible, which must be addressed first. A. Admissibility of the appeal 1. Infringement of the requirement to attach the judgment under appeal to the appeal 25. In the first place, the Commission contends that the appeal is inadmissible because BA failed to append the judgment under appeal to the application, which constitutes an infringement of Article 168(2) of the Rules of Procedure of the Court. 14 26. It should be noted that the previous Rules of Procedure expressly stated that the decision of the General Court appealed against shall be attached to the appeal. 15 The Rules of Procedure which entered into force on 1 November 2012 no longer contain that express requirement. The most recent rules only require that the appeal contain a reference to the decision of the General Court appealed against, so that the Court can clearly identify the decision in question (Article 168(1)(b)). 27. Article 168(2) of the Court s Rules of Procedure refers to Article 122(1) of those rules, which in turn refers to the second paragraph of Article 21 of the Statute of the Court of Justice of the European Union. It is apparent from the latter two provisions that the application must be accompanied by the measure the annulment of which is sought where appropriate. In my view, the words where appropriate must be interpreted as meaning that it is not necessary to append the contested measure to the application where the Court has easy access to that measure, which, in the light of technological developments, is now always the case with judgments and orders of the General Court. 28. Accordingly, Article 168(2) of the Rules of Procedure of the Court does not require the judgment under appeal to be appended to the appeal, with the result that the Commission s first plea of admissibility must be dismissed. 14 15 Article 168(2) of the Rules of Procedure of the Court provides, in particular, that Article 122(1) of those rules applies to appeals. Under Article 122(1), the application shall be accompanied, where appropriate, by the documents specified in the second paragraph of Article 21 of the Statute [of the Court of Justice of the European Union]. The second paragraph of Article 21 of the Statute states that the application shall be accompanied, where appropriate, by the measure the annulment of which is sought. See Article 112(2) of the Rules of Procedure of the Court of 19 June 1991, in force until 31 October 2012. 5

OPINION OF MR MENGOZZI CASE C-122/16 P 2. Infringement of Article 56 of the Statute of the Court of Justice of the European Union and Articles 169 and 170 of the Rules of Procedure of the Court 29. In the second place, the Commission claims that the appeal is inadmissible because it does not meet the requirements laid down in Article 56 of the Statute of the Court of Justice of the European Union and Articles 169 and 170 of the Rules of Procedure of the Court. Before considering those objections, however, it is necessary to examine the Commission s plea that the reply, which BA was given leave to lodge in order to respond to the objections, is inadmissible in its entirety. (a) Admissibility of the reply 30. The Commission submits that the arguments put forward by BA in its reply to the objections of inadmissibility raised by the former amount to a new plea introduced in the course of the proceedings and, as those arguments must be classified as such, the reply is inadmissible in its entirety. 16 According to the Commission, while, in its appeal, BA asserts that the General Court erred in law by failing to draw all the necessary legal conclusions flowing from giving effect to the plea of public policy raised of its own motion, BA challenges, for the first time in its reply, the refusal of its request, made at the hearing before the General Court, to have the contested decision annulled in its entirety. 31. It should be observed in that regard that, during the proceedings, in fulfilment of the requirement that the parties be heard on the issue it intended to raise of its own motion, the General Court asked the parties to state their views on that issue. 32. It is apparent from paragraph 90 of the judgment under appeal that, at the hearing, in its submissions concerning that issue, BA expressly claimed that the General Court could annul the contested decision in its entirety. 33. In the same paragraph of the judgment under appeal, the General Court expressly rejected BA s request, thereby treating it, in essence, as an implicit (according to the wording used by the General Court) request to amend the form of order it was seeking. The General Court thereafter annulled the contested decision in part, within the limits of the form of order sought by BA in its application. 34. In its appeal, BA submits that the General Court erred in law in considering itself, in that instance, restricted by the principle of ne ultra petita. It argues that when the EU judicature raises an issue of public policy of its own motion, it must have the power to draw all the appropriate legal conclusions flowing from giving effect to the plea rising that issue, namely, in the present case, the complete annulment of the contested decision. According to BA, the EU judicature is free to 16 Article 190(1) and Article 127(1) of the Rules of Procedure of the Court. 6

BRITISH AIRWAYS v COMMISSION exercise that power irrespective of the forms of order sought by the parties, so that, in the present case, the submission of a request to amend the form of order was not even necessary to enable the General Court to annul the contested decision in its entirety. 17 35. The logical outcome of that argument is that, from BA s perspective, since the General Court by upholding the plea raised of its own motion should have in any event annulled the contested decision in its entirety, the reasoning set out in paragraph 90 of the judgment under appeal, in which the General Court refused BA s request for the complete annulment of the contested decision, is incorrect. 36. In those circumstances, the Commission cannot reasonably claim that, by stating in its reply that the appeal concerns the refusal of that request, BA raises a new plea, as compared with the plea raised in the appeal, alleging an error of law in the application of the principle of ne ultra petita. In my view, the plea of inadmissibility raised against the reply must therefore be dismissed. (b) Whether the appeal complies with the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union 37. The Commission submits, first of all, that the appeal does not comply with the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union because BA was not unsuccessful in its submissions for the purposes of that provision. Since the General Court upheld BA s submissions as defined in its application, BA was wholly successful at first instance. 38. BA contends that it was unsuccessful in its submissions. At the hearing, it submitted, in the course of its arguments relating to the issue raised by the General Court of its own motion, that the contested decision should be annulled in its entirety and, in the judgment under appeal, the General Court refused that request. The Commission s suggested interpretation of the procedural rules would deprive a party affected by a judgment delivered by the General Court on the basis of a plea raised by the Court of its own motion of the possibility of obtaining effective judicial protection from the Court of Justice. 39. As a preliminary point, I note that, under the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union, an appeal may be brought [before the Court of Justice] by any party which has been unsuccessful, in whole or in part, in its submissions.. 40. However, there is a linguistic divergence between the French version of the second paragraph of Article 56 of that statute and its counterpart in English, the language of the present case. According to the French version, in order for a party to be able to bring an appeal, that party must have succombé en ses conclusions, 17 See points 72 to 75 of this Opinion. 7

OPINION OF MR MENGOZZI CASE C-122/16 P while the English version states that the party must have been unsuccessful in its submissions. The French version therefore uses the word conclusions (form of order sought), which corresponds to that used in Article 168(1)(d), Article 169(1) and Article 170(1) of the Rules of Procedure of the Court, while the English version uses, in contrast, the word submissions, which does not correspond to the expression form of order used in those provisions and may cover not only the form of order sought (the petitum), but also the legal arguments raised before the General Court. Differences are also to be found in other language versions of the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union, some of which do not refer to the concept corresponding to the French word conclusions used in the Rules of Procedure of the Court. 18 41. In those circumstances, since none of those language versions can be said to take precedence over the others, the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union must be interpreted by reference to the purpose and general scheme of the provisions concerning appeals. 19 42. In particular, it is necessary to ascertain whether, as the Commission contends, the concept of being unsuccessful in its submissions within the meaning of that provision may be construed only as referring to the form of order sought in the original application or, at the very least, in a formal request to amend the form of order sought. 43. It should be noted, first of all, that it is apparent from the case-law of the Court that the forms of order sought by the parties are characterised by a stringent requirement for clarity 20 and, in principle, by their unalterability. 21 This 18 19 20 21 Thus, by way of example, which cannot be claimed to be exhaustive, some language versions, like the French, use the same terminology in the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union as in the relevant provisions of the Rules of Procedure of the Court. Thus, all of those provisions use the same word, namely Anträgen in German, conclusioni in Italian, pretensiones in Spanish, nõue in Estonian and prasījumi in Latvian. Other language versions, however, do not use the same terms and the wording of the second paragraph of Article 56 of that statute does not contain any express reference equivalent to the French word conclusions used in the Rules of Procedure. Consequently, in order to convey the concept of unsuccessful, the Dutch version of the second paragraph of Article 56 does not refer to conclusies, the Danish version does not refer to påstande, the Greek version does not refer to αιτήματα, the Swedish version does not refer to yrkanden and the Portuguese version does not refer to pedidos. See, to that effect, inter alia, judgment of 25 March 2010, Helmut Müller (C-451/08, EU:C:2010:168, paragraph 38 and the case-law cited). The Court has consistently held that the forms of order sought in the application initiating proceedings must be set out unambiguously so that the EU judicature does not rule ultra petita or indeed fail to rule on a complaint. See, in particular, judgment of 26 January 2017, Mamoli Robinetteria v Commission (C-619/13 P, EU:C:2017:50, paragraph 31 and the case-law cited). Thus, it is apparent from settled case-law that, in principle, it is not permissible for a party to alter the very subject matter of the case during the proceedings and that the merits of the action 8

BRITISH AIRWAYS v COMMISSION fundamental unalterability is closely related to compliance with the time limits for bringing legal proceedings. 22 44. However, the unalterability of the form of order is not absolute. There are some exceptions, which are nonetheless extremely restricted. 45. Accordingly, the Court has occasionally allowed an amendment of the form of order sought in the application in the course of the proceedings where the amendment is based on matters of law or of fact which came to light during the written procedure. 23 Furthermore, an amendment of the form of order is now possible, under Article 86 of the new Rules of Procedure of the General Court, which codified existing case-law, 24 where the measure the annulment of which is sought is replaced or amended by another measure with the same subject matter. The Court has also accepted, in some specific cases, that the form of order sought may be clarified during the proceedings. 25 Amendment of the form of order sought is, however, subject to the strictest requirements as regards precision and content and must be done formally, 26 all of which is nonetheless possible at the hearing. 27 46. Where an applicant submits an application to amend the form of order sought and the General Court expressly refuses the application in its judgment, the applicant cannot be deprived of the possibility of challenging the legality of the must be examined solely in the light of the claims contained in the application initiating the proceedings. See, in particular, judgment of 11 November 2010, Commission v Portugal (C-543/08, EU:C:2010:669, paragraph 20 and the case-law cited). Also see, to that effect, judgment of 18 October 1979, GEMA v Commission (125/78, EU:C:1979:237, paragraph 26). 22 23 24 25 26 27 In that regard, see point 98 of this Opinion. See judgments of 3 March 1982, Alpha Steel v Commission (14/81, EU:C:1982:76, paragraph 8); of 8 July 1965, Krawczynski v Commission (83/63, EU:C:1965:70 paragraph 2); and of 14 July 1988, Stahlwerke Peine-Salzgitter v Commission (103/85, EU:C:1988:398, paragraph 11). The delivery of a judgment of the Court of Justice may constitute such a new factor (see judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C-580/12 P, EU:C:2014:2363, paragraphs 15 to 20). According to the case-law, a measure adopted after an action had been lodged and having the same subject matter as the contested measure is to be regarded as a new factor allowing the applicant to amend his pleadings (see judgments of 3 March 1982, Alpha Steel v Commission, 14/81, EU:C:1982:76, paragraph 8, and of 14 July 1988, Stahlwerke Peine-Salzgitter v Commission, 103/85, EU:C:1988:398, paragraph 11). Thus, in the judgment of 2 June 1976, Kampffmeyer and Others v EEC (56/74 to 60/74, EU:C:1976:78, paragraphs 6 to 9), the Court allowed later claims to be submitted in order to determine the extent of the damage suffered. See judgments of 14 December 1962, Compagnie des hauts fourneaux de Chasse v High Authority (33/59, EU:C:1962:43, p. 388), and of 14 December 1962, Meroni v High Authority (46/59 and 47/59, EU:C:1962:44, p. 420). Also see paragraph 90 of the judgment under appeal. See, for example, judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C-580/12 P, EU:C:2014:2363, paragraphs 15 to 20). 9

OPINION OF MR MENGOZZI CASE C-122/16 P refusal for the simple reason that he was successful in the original form of order sought, as set out in the application. 47. It is clear that such an applicant was unsuccessful in his application to amend the form of order sought. If the Court were to find that the General Court was incorrect to refuse that application, the applicant might obtain more than he did as a result of the original form of order sought being granted. Such an applicant must therefore be given an opportunity to challenge the legality of the refusal of his application to amend the form of order sought. 48. Moreover, the question whether or not the General Court was fully entitled to refuse the application to amend the form of order sought by a party goes to the substance of the case, irrespective of whether the General Court refused the application on ground of breach of essential procedural requirements. 49. It follows, in my view, that contrary to the Commission s assertions, the concept of unsuccessful within the meaning of the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union cannot be strictly limited to the form of order sought in the original application or to the form of order sought that has been amended in compliance with formal requirements. That concept must, by contrast, cover being unsuccessful in any application made to the General Court during the proceedings on which that Court has ruled in the judgment under appeal. 50. Moreover, that interpretation of the second paragraph of Article 56 appears to be consistent with the various language versions of that provision, all of which refer to the concept of being unsuccessful but do not link that concept necessarily to the form of order formally sought in the original application. 28 51. It follows that, in the present case, since the General Court ruled, in paragraph 90 of the judgment under appeal, on BA s implicit request to annul the contested decision in its entirety, refusing that request, BA must be regarded as having been unsuccessful on that point within the meaning of the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union. Its appeal must therefore be considered to be admissible in that respect. (c) Whether the appeal complies with Article 169(1) of the Rules of Procedure of the Court 52. Next, the Commission argues that the appeal does not comply with Article 169(1) of the Rules of Procedure of the Court because it does not seek to have the operative part of the judgment under appeal set aside. Instead, it seeks to have the operative part supplemented, by extending the partial annulment requested at first instance by BA and granted by the General Court to full annulment. 28 See point 40 and footnote 18 of this Opinion. 10

BRITISH AIRWAYS v COMMISSION 53. Under Article 169(1) of the Rules of Procedure of the Court, 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. 54. That provision concerns the form of order sought in the appeal relating to the appeal (while Article 170 of the Rules of Procedure concerns the form of order sought in the event that the appeal is allowed). In particular, it encapsulates the basic principle applying to appeals, namely that an appeal must be directed against the operative part of the General Court s decision and may not merely seek the amendment of some of the grounds of that decision. 29 55. In the present case, as is apparent from point 21 of this Opinion, so far as concerns the form of order sought relating to the appeal, BA submitted two heads of claim; first, it seeks to have the judgment under appeal set aside in so far as it limits the scope of the annulment of the [contested] decision to the form of order sought by BA in its original application for annulment ; and, secondly, it seeks to have paragraph 1 of the operative part of the judgment under appeal set aside. 56. Under the first head of claim, BA therefore asks the Court to set aside the grounds of the judgment under appeal serving as the basis for paragraph 1 of the operative part, in so far as it annuls the contested decision only in part. What is specifically in issue here is the General Court s decision that it was restricted in the present case by the principle of ne ultra petita and its decision to refuse the implicit application to amend the form of order which BA claims it made at the hearing. 30 It should be observed that, according to the case-law of the Court, the grounds of the judgment under appeal, which constitute the necessary support for its operative part, are inseparable from it 31 and the operative part of a judgment must be understood in the light of those grounds. 32 29 30 31 32 See, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al- Aqsa (C-539/10 P and C-550/10 P, EU:C:2012:711, paragraphs 43 to 45). Decisions set out, respectively, in paragraphs 87 and 88 and in paragraphs 90 and 91 of the judgment under appeal. It is indisputable that, in so far as the measure containing the defective statement of reasons found to exist invalidated the entire contested decision (evidenced by the fact that, with respect to the other airlines which challenged the contested decision, the General Court ordered that the decision be annulled in its entirety, on the basis of the same defective statement of reasons found to exist as regards BA), if the General Court had not considered itself restricted by the principle of ne ultra petita and had not refused BA s application to amend the form of order sought, it would have annulled the decision in its entirety, which would have affected paragraph 1 of the operative part of the judgment under appeal. See judgments of 1 June 2006, P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission (C-442/03 P and C-471/03 P, EU:C:2006:356, paragraph 44), and of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa (C-539/10 P and C-550/10 P, EU:C:2012:711, paragraph 49 and the case-law cited). See, to that effect, judgments of 16 March 1978, Bosch (135/77, EU:C:1978:75, paragraph 4), and of 26 April 1988, Asteris and Others v Commission (97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraph 27). 11

OPINION OF MR MENGOZZI CASE C-122/16 P 57. On the basis of that premiss, under its second head of claim, BA seeks to have paragraph 1 of the operative part of the judgment under appeal set aside. 58. In that connection, it should also be added that the Court has previously held that, although it has jurisdiction to review the findings of law on the pleas argued before the General Court, it must, if the appeals procedure is not to be rendered largely meaningless, also have jurisdiction to review the legal conclusions drawn by the General Court from those findings, which also constitute a point of law. 33 59. In its appeal, BA challenges the extent of the annulment ordered by the General Court as a consequence of giving effect to the plea it raised of its own motion. BA therefore challenges the legal conclusions drawn by the General Court as a result of giving effect to that plea. 60. It follows from all of the foregoing that, in the present case, the Commission cannot reasonably claim that BA s appeal does not seek to have the operative part of the judgment under appeal set aside, as required by Article 169(1) of the Rules of Procedure of the Court. (d) Whether the appeal complies with Article 170(1) of the Rules of Procedure of the Court 61. Lastly, the Commission argues that the appeal does not comply with Article 170(1) of the Rules of Procedure of the Court. That article does not permit an appellant to seek a form of order on appeal that goes beyond the form of order sought at first instance or to request a broader form of relief than that sought before the General Court. The request made by BA at the hearing before the General Court concerning the extent of the annulment (paragraph 90 of the judgment under appeal) cannot be regarded as forming part of the subject matter of the proceedings before the General Court. 62. Article 170(1) of the Rules of Procedure of the Court provides that 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 and that the subject matter of the proceedings before the General Court may not be changed in the appeal. 63. The introduction of a specific article dealing with the form of order sought in the event that the appeal is allowed is one of the new features ushered in by the Rules of Procedure of the Court which came into force on 1 November 2012. That provision concerns the conclusions that the Court should draw if the appeal is considered well founded. It follows logically after Article 169(1) of those rules 33 Judgment of 11 December 2008, Commission v Département du Loiret (C-295/07 P, EU:C:2008:707, paragraphs 97 and 98). 12

BRITISH AIRWAYS v COMMISSION and seeks to prevent appellants from being able to submit to the Court claims which they had not lodged before the General Court. 34 64. In the present case, the form of order sought in the event of BA s appeal being allowed are set out in its third head of claim, by which it asks the Court to annul the contested decision in its entirety. 65. It is necessary to determine whether that claim should be treated as a different form of order and whether it is capable of changing the subject matter of the proceedings for the purposes of Article 170(1) of the Rules of Procedure of the Court. 66. In that connection, it should be observed, first, that the request in the third head of claim is exactly the same as the implicit request to amend the form of order which the General Court refused in paragraph 90 of the judgment under appeal. Moreover, it concerns a question that of the possible complete annulment of the contested decision as a result of the General Court giving effect to the plea raised by it of its own motion which, as paragraph 90 of the judgment under appeal shows, was debated before the General Court during the discussions on that plea. 67. Secondly, if, as is apparent from the considerations set out in points 58 and 59 of this Opinion, an appellant is entitled to challenge on appeal the legal conclusions drawn by the General Court as a result of upholding a plea (in the present case, the plea raised of its own motion), that appellant must logically be entitled to ask the Court, in the event that its appeal is allowed, itself to give due effect to the consequences that follow as a matter of law from the upholding of that plea. 68. There is no doubt that if the Court were to grant BA s appeal, taking the view that the General Court committed the error of law alleged by BA, it would necessarily follow that the contested decision must be annulled in its entirety. 35 69. Accordingly, in this instance, the complete annulment of the contested decision is simply the necessary legal consequence of the form of order sought by BA in its appeal (mentioned in points 21 and 55 of this Opinion) being granted and, thus, of the judgment under appeal being set aside. 70. That being so, in the very special circumstances characterising this case, I do not believe that the effect of Article 170(1) of the Rules of Procedure of the Court is that the appeal must be dismissed as inadmissible. 34 35 Such as a fresh claim for damages (see, for example, judgment of 18 March 1993, Parliament v Frederiksen, C-35/92 P, EU:C:1993:104, paragraphs 34 to 36) or an application for annulment directed against measures other than the contested measure (see, for example, judgment of 6 March 2001, Connolly v Commission, C-273/99 P, EU:C:2001:126, paragraphs 18 to 20). See footnote 30 of this Opinion. 13

OPINION OF MR MENGOZZI CASE C-122/16 P 71. It follows that BA s appeal is, in my view, admissible. B. First plea in law alleging an error of law as a result of the misapplication of the principle of ne ultra petita 1. Brief summary of the arguments of the parties 72. By its first plea, BA argues that the General Court erred in law in considering itself restricted by the principle of ne ultra petita when it found, of its own motion, that there were fundamental public policy defects vitiating the contested decision in its entirety. 73. According to BA, where the EU judicature raises an issue of public policy of its own motion, the inter partes limitations of the principle of ne ultra petita no longer apply. In those circumstances, the EU judicature must have jurisdiction to formulate the operative part of the judgment in the manner it sees fit and must not be constrained in the exercise of that jurisdiction by the form of order sought by one of the parties. 74. BA submits that if, in cases involving issues of public policy, the EU judicature is free to depart from the pleas relied on by the parties, it must, by extension, equally be free to depart from the forms of order they seek. Only then will it be able to formulate an appropriate operative part of its judgment and rectify effectively the breaches of public policy it has identified. 75. The consequences of the General Court raising issues of public policy of its own motion cannot be subjugated to the individual interests of the parties to the dispute. Nor can they depend on any amendment made by the parties to the forms of order they seek during the proceedings. That approach would also be tantamount to placing public policy issues in the hands of the parties. 76. Furthermore, in its consideration in the judgment under appeal of subsequent national proceedings for damages, the General Court drew an arbitrary distinction between the position of BA (which benefited only from partial annulment of the contested decision) and that of the other airlines that also challenged the decision (which benefited from its annulment in full), even though all the applicants were in the same position in relation to the fundamental defect in the statement of reasons identified by the General Court of its own motion. 77. Lastly, BA claims that the General Court s approach raises concerns as regards the administration of justice as it encourages applicants routinely to frame the forms of order they seek in unjustifiably broad terms in an effort to secure a more wide-reaching annulment in the event that the EU judicature should raise an issue of public policy of its own motion. 78. The Commission disputes BA s arguments. In particular, it contends that BA s submissions amount to a repudiation of the principles laid down in the line 14

BRITISH AIRWAYS v COMMISSION of authority devolving from the judgment in Commission v AssiDomän Kraft Products and Others ( AssiDomän ). 36 The difference between AssiDomän and the present case is simply one of degree. While, in AssiDomän, some addressees of a Commission decision did not challenge that decision at all, in this case, BA challenged only some aspects of the contested decision before the General Court. 2. Analysis 79. Did the General Court err in law in considering itself restricted by the principle of ne ultra petita in this case? Was the General Court entitled, or even required, by drawing all the appropriate legal conclusions flowing from the fact raised of its own motion that the statement of reasons was defective on grounds of public policy, thus vitiating the contested decision in its entirety, to annul that decision completely, notwithstanding the fact that BA sought only partial annulment of that decision? 80. As indicated in points 5 and 6 of this Opinion, those questions expose the tensions between different and occasionally conflicting legal requirements. The answers to be given to the questions thus depend on the relationship between those requirements and the weighing-up of the principles underpinning them. 81. Against that background, I will begin by examining the scope and rationale of the principles and requirements in issue, before suggesting possible answers to the above questions. (a) The principle of ne ultra petita, corollary of the principle that the subject matter of an action is delimited by the parties 82. It is necessary, first of all, to define the principle of ne ultra petita relied on by the General Court as the limit, in this case, on its power of annulment. 83. The principle of ne ultra petita stems from the adage ne eat iudex ultra petita partium and prohibits a court required to rule on an action for annulment from going beyond the forms of order sought by the parties. 37 According to settled case-law, since it would be ultra vires for the EU judicature to rule ultra petita, the scope of the annulment granted may not go further than that sought by the applicant. 38 36 37 38 Judgment of 14 September 1999, Commission v AssiDomän Kraft Products and Others (C-310/97 P, EU:C:1999:407). See Opinion of Advocate General Jääskinen in Galp Energía España and Others v Commission (C-603/13 P, EU:C:2015:482, point 35). See, ex multis, judgment of 19 January 2006, Comunità montana della Valnerina v Commission (C-240/03 P, EU:C:2006:44, paragraph 43 and the case-law cited). 15

OPINION OF MR MENGOZZI CASE C-122/16 P 84. The principle of ne ultra petita is a corollary of the principle that the subject matter of an action is delimited by the parties, which is a guiding principle of judicial review proceedings before the EU Courts. Under that principle, it is the parties that take the initiative in pursuing and delimiting the subject matter of the case and, in consequence, the court may go no further than that subject matter (and thus may not rule ultra petita). 39 85. In general terms, the principle that the subject matter of an action is delimited by the parties and its corollary, the principle of ne ultra petita, are considered to be an expression of individual autonomy. The question whether and to what extent an individual asserts his rights before the courts ultimately depends on that individual s intent. That notion is, however, applicable primarily in civil proceedings. 40 86. In public law proceedings, however, the principle that the subject matter of an action is delimited by the parties and the ne ultra petita rule and the resulting limits on judicial powers have a different scope. 41 Specifically, those principles must be viewed in the context of the decision to frame judicial review proceedings under EU law as proceedings dependent on the lodging of an action. 87. Thus, it is apparent from the second to fourth paragraphs of Article 263 TFEU that the EU judicature has jurisdiction to review the legality of measures adopted by the institutions, bodies, offices and agencies of the European Union only if and in so far as it is seised of an action brought by a person empowered to do so under those provisions. 39 40 41 See, in that regard, the Opinions of Advocate General Kokott in Commission v Alrosa (C-441/07 P, EU:C:2009:555, point 146) and of Advocate General Wahl in Total v Commission (C-597/13 P, EU:C:2015:207, points 58 and 59). The principle that the subject matter of an action is delimited by the parties is embodied in the various rules governing procedure before the EU Courts, particularly Article 21 of the Statute of the Court of Justice of the European Union, Article 120(c) of the Rules of Procedure of the Court and Article 76(d) of the Rules of Procedure of the General Court, under which cases are to be brought before the EU Courts by a written application which must contain, inter alia, 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. See, in that regard, the Opinion of Advocate General Ruiz-Jarabo Colomer in Vedial v OHIM (C-106/03 P, EU:C:2004:457, point 28). See also judgment of 14 December 1995, van Schijndel and van Veen (C-430/93 and C-431/93, EU:C:1995:441, paragraphs 20 and 21). It has also been found that the principle that the subject matter of an action is delimited by the parties aims to safeguard the rights of the defence and to ensure the proper conduct of proceedings by, in particular, protecting those proceedings from the delays inherent in the examination of new pleas (see the Opinion of Advocate General Kokott in Duarte Hueros, C-32/12, EU:C:2013:128, point 32 and the case-law cited). It has already been observed that the scope of the principle that the subject matter of an action is delimited by the parties and the ne ultra petita rule may be different in civil law proceedings compared with public law proceedings. See, in that regard, the Opinion of Advocate General Jääskinen in Galp Energía España and Others v Commission (C-603/13 P, EU:C:2015:482, point 36). 16

BRITISH AIRWAYS v COMMISSION 88. In the absence of such an action, the EU Courts have no jurisdiction whatsoever to review of their own motion the lawfulness of measures adopted by the institutions, bodies, offices and agencies of the European Union. 42 89. In other words, the power of the EU judicature to review the lawfulness of the EU institutions activities is subject to the existence and scope of an action for annulment brought by one of the persons referred to in Article 263 TFEU. If the EU Courts have not been seised of such an action, they cannot, by interfering in the areas of activity of the other institutions, bodies, offices and agencies of the European Union, question the lawfulness of measures adopted by them. 43 90. From that point of view, the limits on judicial powers flowing from the principle of ne ultra petita, as an expression of the principle that the subject matter of an action is delimited by the parties, concern not only individual autonomy but also the principle of the separation of powers, which is a hallmark of the functioning of the rule of law and which, in the context of the European Union, is reflected in the principle of institutional balance, a principle which requires that each of the institutions exercise its powers with due regard for the powers of the other institutions. 44 91. The principle of ne ultra petita, as its name suggests (ne ultra petita), relates to the petitum and, therefore, to the claims of the parties as set out in the forms of order sought. Nonetheless, the Court occasionally refers to that principle also in connection with the pleas raised by the parties in support of their claims. It does so, in particular, in the light of the fact that the EU judicature is prohibited from considering pleas that have not been raised by the parties, with the exception specifically of pleas that it may, or even must, raise of its own motion. 45 92. From that point of view, the situation whereby the EU Courts raise a plea of public policy of their own motion may be regarded as an exception to the principle of ne ultra petita in the broad sense (that is, as referring not only to the petitum, but also to the pleas put forward to support it). However, the existence of 42 43 44 45 The EU judicature may also review the lawfulness of an EU measure within the context of a reference for a preliminary ruling on validity or a plea of illegality. Those proceedings are not among the proceedings which the EU Courts may initiate of their own motion. In line with that approach, the case-law acknowledges that EU measures are in principle presumed to be lawful and, accordingly, produce legal effects, even if they are vitiated by irregularities, until such time as they are annulled in an action for annulment or withdrawn or declared invalid following a reference for a preliminary ruling or a plea of illegality. See, in particular, judgment of 6 October 2015, Schrems (C-362/14, EU:C:2015:650, paragraph 52 and the case-law cited). See Article 13(2) TEU. See also judgment of 28 July 2016, Council v Commission (C-660/13, EU:C:2016:616, paragraph 32 and the case-law cited). See judgment of 10 December 2013, Commission v Ireland and Others (C-272/12 P, EU:C:2013:812, paragraphs 27 and 28 and the case-law cited). 17