European Union: EU Courts Bound By Ne Ultra Petita Principle Even When Ruling Of Own Motion

In the Airfreight cartel case, British Airways had lodged an appeal against the General Court ("GC") judgment which had partially annulled the Commission's decision (the "Decision") in so far as British Airways was concerned, while annulling it in its entirety for all other appealing carriers. The GC justified the partial annulment of the Decision for British Airways on the ground that its application for annulment was limited to four specific elements of the Decision, rather than covering the Decision in its entirety (see VBB on Competition Law, Volume 2016, No. 1, available at www.vbb.com).

According to British Airways, by raising a plea of its own motion, the GC had grounds to go beyond the form of order set out in British Airways' application for annulment, in particular as it related to a ground involving a matter of public policy. British Airways also argued that the judgment was discriminatory since, on the basis of that very same plea, the GC had annulled the Decision in its entirety with respect to all other appellant carriers involved in the infringement.

In its judgment, the Court of Justice of the European Union ("ECJ") upheld the findings of the GC and dismissed the appeal lodged by British Airways. Consistent with the opinion of Advocate General Mengozzi, the ECJ found that the concept of ne ultra petita precluded the GC from annulling the Decision in its entirety with respect to British Airways, even though the Decision had been annulled on a ground of public policy. Similarly, the ECJ concluded that, while the GC is empowered to raise on its own motion a plea involving public policy, it nonetheless lacks jurisdiction to amend the form of order sought by an appellant.

The ECJ further ruled that the GC was right not to treat British Airways and the other appellants involved in the infringement in the same way, since, contrary to British Airways, all the other carriers had requested the full annulment of the Decision and, therefore, the GC could legitimately annul the entire decision in relation to them without breaching the ne ultra petita principle.

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