On 14 November 2017, the Court of Justice dismissed the appeal by British Airways (BA) and upheld the fine for its participation in an infringement in the air cargo sector. It ruled that the General Court (GC) had been correct in not granting a full annulment of the infringement decision, as BA had only sought a partial annulment before the GC.
In 2010, BA and several other carriers were fined for an infringement in the air cargo sector. On appeal before the GC, most addressees of the fining decision requested a full annulment. BA, however, only sought a partial annulment. On 16 December 2015, the GC annulled the decision in its entirety in relation to the carriers that had asked for full annulment because the grounds of the decision were inconsistent with the operative part [see our January 2016 Newsletter]. The GC had raised this issue of its own motion as it concerned a matter of public policy. BA, however, only obtained a partial annulment of the fining decision as it had only requested a partial annulment.
BA subsequently appealed the GC's judgment before the Court of Justice, arguing that the GC should have gone beyond BA's request for a partial annulment and should have ordered a full annulment instead. In particular, BA was of the opinion that the principle of non ultra petita (i.e. the principle that the European Courts cannot go beyond the form of order sought by the appellant) did not apply in this situation as the GC had found of its own motion the inconsistencies in the fining decision as matter of public policy. The Court of Justice, however, disagreed with BA. It stated that "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". The fact that the GC can raise a public policy argument of its own motion in its substantive examination of a decision does not mean that the GC can amend the scope of the dispute on the same basis.
This judgment is not the end of the Air Cargo case. In 2016, after the annulment of the original fining decision by the GC, the European Commission adopted a second decision against the carriers. New appeal proceedings against this second decision are currently pending before the GC.