Case-law of the general court in 2018

• Author: Court of Justice of the European Union
• Pages: 161-226

B| Case-law of t he General Court in 2018

B|

CASE-LAW OF THE GENERAL COURT

IN 2018

Trends in the case-law

By Vice- President Marc van der Woude

The year 2018 was a particularly productive year in view of the reco rd number of nal dec isions delivered.

t was no less signicant from th e aspect of the nature of the judicial review carried out by the Cour t. n fact,

during the pas t year the General Court w as again able to take advant age of the reform of the judicia l structure

put in place by Regula tion 2015/2422

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by re fe rr ing a sig ni c ant nu mb er of ca se s t o f or mat io ns of v e j udg es ,

and also one case t o the Grand Chamber. The involv ement of a greater number of jud ges in important ca ses,

special cases o r cases presenting legal diculties makes it possible to combine more points o f view and

more expertise, to provide litigants with a larger audience and, consequently, to enhance the authorit y of

the judgment s of the General Court . Referring cases to ex tended formations a lso allows the Court to s tructure

its cas e-law by ascribing par ticular signi cance to cer tain judgment s.

The wealth of judi cial activity was a ttributable also to the g reat variety of areas of law in whi ch the Court is

involved. The extension of the spheres of activity of the European Union is gradually being reected in the

case-law. T hus, the Court has had t he opportunit y to develop its cas e-law in new matte rs such as superv ision

of the nancial sec tor (see, for example, judg ment of 24 April 2018, Caisse régionale de crédit agricole mutuel

Alpes Provence a nd Others v ECB, T-133/16 to T-136/16, EU:T:2018:219), or again in matters of great societal

importan ce, such as environmental and health protecti on (see, for example, judgment of 17 May 2018, Bayer

CropScience and Others v Commission, T-429/13 and T-451/13, EU:T:2018:280, and ju dgment of 13 December

2018 , Ville de Paris, Vil le de Bruxelles and Ayuntamiento de M adrid v Commission, T-339/16, T-352/16 and

T-391/ 16, EU:T:2018:927). The judicial protection provided by the Cour t does not exte nd to all the act ivities

of the Union, howe ver. It follows, in partic ular, from Article 2 75 TFEU that the Court of J ustice of the European

Union is not to have juris diction with respec t to the provisions relating to th e common foreign and securit y

pol ic y (CF SP) nor wit h re spe ct t o ac ts ado pte d on t he b asi s of tho se p rov isio ns. App ly ing the pri ncip le o utl ine d

by the Court of Ju stice in its judgmen t in Rosneft,

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the General Court considered, however, that that derogation

from t he principl e of e ective judicial pr otection within the meaning of Ar ticle 47 of the Charter, and from

the rule of general j urisdiction which A rticle 19 TEU confers on the Co urt of Justice of the Europ ean Union to

ensure that in the in terpretation of the Treaties t he law is observed, m ust be interpreted s trictly. The Gene ral

Court theref ore considers that it has jur isdiction to adjudic ate in disputes betwe en a body coming under the

CFSP and the members of its sta ( judgment of 2 5 October 2 018, KF v SatCen, T-286/15, EU:T:2018:718).

n most cases the judicial protectio n aorded by the Court is provided in the context of the review of legality

provided for in Article 263 TFEU. This review means that the Court is to verify, upon application by the

applicant, whether the administrative or regulatory authorities complied with EU law when adopting the

contested measure. The intensit y of this review is not uniform, but may vary from one case to another, in

particular according to the extent of t he margin of discretion wh ich EU law leaves to the author ities concerned.

However, the review of le gality never allows the G eneral Court to substitu te its own decision for that of t he

administrat ion. It reviews and annuls con tested measures when ther e has been a breach of the legal norm ,

1|Regulation (EU, Euratom) 2015/2 422 of the European Par liament and of the Coun cil of 16 December 2015 amending P rotocol No 3 on

the Statu te of the Court of Ju stice of the Europ ean Union (OJ 2015 L 341, p. 14).

2|Judgment of 28 Ma rch 2017, Rosneft, C-72/15, EU:C:2017:236, paragraph 74.

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Annual Repor t 2018 | Judicial Act ivity

but it cannot adopt a decision in place of the administration. Although this review is always carried out in

specic cases and although it is dicult to derive general tendencies from a body of individual cases, two

trends seem to eme rge from the Court’s 2018 case -law.

A r st c har act eri st ic re lat es t o the rel ati vel y la rge n umb er o f cas es i n wh ich a con tes ted mea sure was ann ulle d

on the ground that the administration did not have all the relevant material before it at the time when it

adopted that measure. The rst decision in that series concerned merger law and more specically the

Commission’s ob ligation to gather all the re levant evidence when i t rules on a request to al ter commitments,

in this instance those given by Deutsche Lufthansa in order to obtain conditional authorisation for its

acquisition of Swiss nternational Air Lines (judgment of 16 May 2018, Deutsche Lufthansa v Commission,

T-712 /16, EU:T:2018:269). Second, in the eld of State aid, the Court recalled that the insucient or incomplete

nature of the preliminary examinatio n carried out in the context of the procedure provided for in Article 108(3)

TFEU constitu tes an indication of the existence of serious di culties which the Commission encountere d in

that examination and which ought to have led it to initiate the formal investigation procedure under

Article 108(2) TFEU (judgment of 19 September 2018, HH Ferries and Others v Commission, T-68/15,

EU:T:2018:563). n th e judgment of 15 Novemb er 2018, Tempus Energy and Tempus Energy Technology v

Commission (T-793 /14, EU:T:2018:790), the Court fur ther explained in that regard that the Commission must

assemble all the r elevant evidence diligent ly and impartially, in suc h a way as to eliminate all doubt as to the

compatibilit y of the notied measure with the int ernal market. Third, the Court also had the opportunit y to

clarify the obligation placed on the administration to investigate cases correctly in the area of trade mark

law. Although th e applicant had failed to adduce wi thin the prescribed period e vidence to substantiate th e

reputation of the earlier trade mark on which i t had based its oppositio n, the Board of Appeal ought , in the

light of its pre vious practice in t aking decisions relatin g to that reputation, t o have assembled all the e vidence

necessar y for the exercise of its dis cretion. Fourth , where the Council adopt s or extends the list ing of natural

or legal persons on the lists of per sons and entities covered by res trictive measures, it m ust ensure that it

has reliable evid ence and, if necessar y, undertake additional che cks. It must also st ate to the requisite legal

standard the reasons w hy the eviden ce received jus ties the a doption of res trictive mea sures against t he

person concerned.

A second trend which seems to be taking shape in recent case-law concerns the admissibility of actions

brought under Ar ticle 263 TFE U and in particular thos e challenging regulator y acts which are o f direct concern

to the ap plicant and do not entail implementing measu res. n that regard, it shou ld be obser ved, rst of all,

that the Court of Justice, in its judgment of 6 November 2018, Scuola Elementare Maria Montessori v

Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C-622/16 P to

C-624/16 P, EU:C:2018:873), upheld for the most part, as regards admis sibility, the judgments of the General

Court of 15 Septemb er 2016, Ferracci v Commission (T-2 19/13 , EU:T:2016:485) and Scuola Elementare Maria

Montessori (T-220/13, not published, EU:T:2016:484), in which the General Court had declared admissible the

actions for annulment broug ht by two com petitors of the beneciaries of three national s chemes against

the Commission dec ision on State aid relating to thos e schemes. The Court of Jus tice approved the General

Court ’s analysis, according to whic h the contested decision cons tituted, by reference to the t hree schemes,

a regulator y act within the m eaning of the nal limb of th e fourth paragraph of Article 263 TFEU, w hich did

not require any imple menting measure withi n the meaning of that provis ion and which was of direc t concern

to the applicants ow ing to their competitive relationships wi th the bene ciaries of the schemes at issue.

t was also on the bas is of the nal limb of the four th paragraph of Art icle 263 TFEU that th e Court considered,

in its judgmen t of 13 September 2018, Gazprom Neft v Council (T-735/14 and T-799/14, EU:T:2018:548) , that

an action for an nulment brought by the Russian un dertaking Gazprom Ne ft against a number of prov isions

of general application, namely those governing a system of prior authorisation for exports relating to oil

exploration and production to Russia, was admissible. The Court considered in that regard that those

provisions did not require implementing measures, since the national authori ties had no margin of discretion

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B| Case-law of t he General Court in 2018

when applying those provisions and since Gazprom Nef t could not itself seek expo rt authorisations. Sin ce

Gazprom Neft had shown that it was active in the eld of exploration and production covered by the export

bans at issue, it s action was admissible.

The admissibility of an action against a regulatory act was also at the centre of the ac tions for annulment

brought by three European capital cities against a Commission regulation on emissions standards for

pas sen ger and light goods vehic les; accor ding to th ose ci ties , tho se st andar ds wer e too e xib le by co mpar ison

with the standards laid down in the basic regulation (Cases T-339/16, T-352/16 and T-391/16, cited above).

The Commission disp uted the admissibility of those actions on the ground that the regulation at issue did

not directly aect the legal situation of the three applicants. The Court rejected that argument, being of the

view that the con tested measure restr icted the abilit y of the public authorit ies of a Member State to combat

air pollution by limit ing vehicular trac for technical rea sons governed by the contested reg ulation. Consequentl y,

the contes ted measure direc tly aecte d their regulato ry capacit y.

Last, in 2018 the Cour t had the opportun ity to rule on a number of occ asions on unlimited jurisdi ction within

the mean ing of A rticle 261 T FEU, as i t exists in par ticular in the eld of competi tion law under Ar ticle 31 of

Regulation No 1/2003,

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and the power to alt er a contested decision pr ovided for in Arti cle 72(3) of Regula tion

2017/1001 on the European Union trade mark. 4 Both types of power supplement the review of legality in

that they allow t he Courts of the Europ ean Union to substitu te their point of view for t hat of the administrat ion.

They diverge, nonetheless, as is apparent, for example, from the order of 1 February 2018, ExpressVPN v

EUIPO (EXPRESSVPN) ( T-2 65/ 17, EU:T:2018:79). In that case, t he Court recalled that the ann ulment, in whole

or in part, of t he contested measure is a precond ition of the exercise of the power of al teration. The power

of unlimited jurisdiction, on the other h and, which is lim ited to the are a of nes, may be exercised in the

absence of such annulment ( judgment of 15 October 20 02, Limburgse Vinyl Maatschappij and Others v

Commission, C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P,

EU:C:2002:582, paragrap h 692). The Court also had the opportunit y to rule for the rst time on the exercise

of unlimited jurisdiction in connec tion with the penalties provided for by Regulation No 966/2012 on the

nancial rules applicable to the general budget of the Union, 5 recalling the principle, already developed in

competition ma tters, that it cann ot exercise its unlimited juris diction of its own moti on, but only where it is

asked to do so when the action is brought (judgment of 8 November 2018, ‘Pro NGO!’ v Commission, T- 45 4/1 7,

EU:T:2018:755).

3|Council Reg ulation (EC ) No 1/2003 of 16 December 20 02 on the i mplementati on of the r ules on comp etition lai d down in A rticles

[101 TFEU] and [102 TF EU] (OJ 2003 L 1, p. 1).

4|Regulation (EU) 2017/1001 of th e European Par liament and o f the Counci l of 14 June 2017 on the European Union trade mark

(OJ 2017 L 154, p. 1). This pow er of alteration w as conferred on th e Court in accordan ce with the f th paragraph of A rticle 263 TFE U.

5|Regulation (EU, Euratom) 2015/1929 of the Eu ropean Parliam ent and of t he Council o f 28 October 2015 amending Re gulation

(EU, Euratom) No 9 66/2012 on the nanc ial rules applic able to the general b udget of the Union (O J 2015 L 286, p. 1).

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