British Airways plc v European Commission.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Regan
• ECLI: ECLI:EU:C:2017:861
• Docket Number: C-122/16
• Date: 14 November 2017
• Procedure Type: Recurso de anulación

JUDGMENT OF THE COURT (Grand Chamber)

14 November 2017 ( *1 )

(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)

In Case C‑122/16 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 26 February 2016,

British Airways plc, established in Harmondsworth (United Kingdom), represented by J. Turner QC and R. O’Donoghue, Barrister, instructed by A. Lyle-Smythe, Solicitor,

appellant,

the other party to the proceedings being:

European Commission, represented by N. Khan and A. Dawes, acting as Agents,

defendant at first instance,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, A. Tizzano, Vice-President, R. Silva de Lapuerta, M. Ilešič, L. Bay-Larsen, J. Malenovský and E. Levits, Presidents of Chambers, E. Juhász, A. Borg Barthet, J.–C. Bonichot, F. Biltgen, K. Jürimäe, C. Lycourgos, M. Vilaras and E. Regan (Rapporteur), Judges,

Advocate General: P. Mengozzi,

Registrar: M.-A. Gaudissart, Deputy Registrar,

having regard to the written procedure and further to the hearing on 7 February 2017,

after hearing the Opinion of the Advocate General at the sitting on 30 May 2017,

gives the following

Judgment

1 By its appeal, British Airways plc seeks to have set aside in part the judgment of the General Court of the European Union of 16 December 2015, British Airways v Commission (T‑48/11, not published, ‘the judgment under appeal’, EU:T:2015:988), by which that court annulled in part Commission Decision C(2010) 7694 final of 9 November 2010 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) (‘the decision at issue’), in so far as it concerns British Airways.

Legal context

The Statute of the Court of Justice of the European Union

2 Article 21 of the Statute of the Court of Justice of the European Union is worded as follows: ‘A case shall be brought before the Court of Justice by a written application addressed to the Registrar. The application shall contain the applicant’s name and permanent address and the description of the signatory, the name of the party or names of the parties against whom the application is made, 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 application shall be accompanied, where appropriate, by the measure the annulment of which is sought, or, in the circumstances referred to in Article 256 [TFEU], by documentary evidence of the date on which an institution was, in accordance with that article, 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.’

3 The second paragraph of Article 56 of that statute is worded as follows: ‘[An appeal before the Court of Justice] may be brought by any party which has been unsuccessful, in whole or in part, in its submissions. …’

The Rules of Procedure of the Court of Justice of 19 June 1991

4 Article 112(2) of the Rules of Procedure of the Court of Justice of 19 June 1991 (‘the Court’s Rules of Procedure of 19 June 1991’) provided as follows: ‘The decision of the [General] Court appealed against shall be attached to the appeal. …’

The Rules of Procedure of the Court of Justice of 25 September 2012

5 Article 120 of the Rules of Procedure of the Court of Justice of 25 September 2012, which entered into force on 1 November 2012 (the Court’s Rules of Procedure’), headed ‘Content of the application’, is worded as follows: ‘An application of the kind referred to in Article 21 of the Statute [of the Court of Justice of the European Union] shall state: … (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; …’

6 Article 122 of those rules, entitled ‘Annexes to the application’, provides as follows: ‘1. The application shall be accompanied, where appropriate, by the documents specified in the second paragraph of Article 21 of the Statute. … 3. If an application does not comply with the requirements set out in paragraphs 1 or 2 of this Article, the Registrar shall prescribe a reasonable time-limit within which the applicant is to produce the abovementioned documents. If the applicant fails to put the application in order, the Court shall, after hearing the Judge-Rapporteur and the Advocate General, decide whether the non-compliance with these conditions renders the application formally inadmissible.’

7 Article 127 of those rules, entitled ‘New pleas in law’, states in paragraph 1 thereof as follows: ‘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.’

8 Article 168 of those rules, headed ‘Content of the appeal’, provides as follows: ‘1. An appeal shall contain: … (b) a reference to the decision of the General Court appealed against; … 2. Articles 119, 121 and 122(1) of these Rules shall apply to appeals. …’

9 Article 169 of the Court’s Rules of Procedure, headed ‘Forms of order sought, pleas in law and arguments of the appeal’, states in paragraph 1 thereof as follows: ‘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.’

10 Article 170 of those rules, headed ‘Form of order sought in the event that the appeal is allowed’, provides as follows: ‘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.’

11 Article 190 of those rules, headed ‘Other provisions applicable to appeals’, states as follows: ‘Articles 127 … of these Rules shall apply to the procedure before the Court of Justice on an appeal against decisions of the General Court.’

Rules of Procedure of the General Court of 2 May 1991

12 Under Article 44(1) of the Rules of Procedure of the General Court of 2 May 1991: ‘An application of the kind referred to in Article 21 of the Statute shall state: … (c) the subject-matter of the proceedings and a summary of the pleas in law on which the application is based; (d) the form of order sought by the applicant; …’

13 Article 48(2) of those rules was worded as follows: ‘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. …’

Background to the dispute

14 The applicant, British Airways plc, is an airline operating in the airfreight market.

15 On 7 December 2005, the European Commission received an application for immunity under the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3, ‘the 2002 Leniency Notice’) submitted by Deutsche Lufthansa AG and its subsidiaries, Lufthansa Cargo AG and Swiss International Air Lines AG. According to that application, anticompetitive contacts existed between a number of undertakings operating in the freight market (‘the carriers’) with respect to various elements forming part of the prices charged for services on that market, namely the imposition of ‘fuel’ and ‘security’ surcharges and the refusal by the carriers to pay commission on those surcharges.

16 On 14 and 15 February 2006, the Commission carried out unannounced inspections.

17 Following the inspections, a number of carriers, including the appellant, made an application under the 2002 Leniency Notice.

18 On 19 December 2007, the Commission addressed a statement of objections to 27 carriers, including the appellant. The addressees of that statement submitted written observations in reply. A hearing was held from 30 June to 4 July 2008.

19 On 9 November 2010, the Commission adopted the decision at issue, which it addressed to 21 carriers (‘the carriers at issue’), including the appellant.

The procedure before the General Court and the judgment under appeal

20 By application lodged at the Court Registry on 24 January 2011, the appellant brought an action for the annulment of certain aspects of the decision at issue, in so far as those aspects concerned it.

21 As is apparent from paragraph 25 of the judgment under appeal, in the form of order sought...