Opinion of Advocate General Kokott delivered on 11 December 2014

Data

Court: Court of Justice

Case date: 11 december 2014

Opinion of Advocate General

KOKOTT

delivered on 11 December 2014⁽¹⁾

Case C‑596/13 P

European Commission

Moravia Gas Storage a.s.

"Appeals - Internal market in natural gas - Directive 2003/55/EC and Directive 2009/73/EC - Delimitation of the temporal scope of both directives - Prohibition on retroactivity - Definitively established situations and already pending procedures - Immediate application of new procedural rules in pending procedures - Underground natural gas storage facilities - Temporary exemption from the obligation on natural gas undertakings to provide third-party access to major new gas infrastructures - Commission Decision by which a national authority is required to withdraw its exemption"

I – Introduction

1. The present appeal proceedings offer the Court the opportunity to refine its case-law on the temporal applicability of new legislation.

2. Which rules should be applied if — in the course of an administrative procedure pending before the European Commission — the directive applicable up to that point is replaced by another and, as a result, the legal situation is altered in a number of respects? Should the new directive be applied immediately or should the view be taken that the pending administrative procedure must still be concluded under the rules of the former directive?

3. Those questions are raised in the present case against the background of the provisions of EU law applicable to the internal market in natural gas. In 2011, the Czech authorities exercised the option to grant an exemption from certain provisions which normally have to be observed on the internal market in natural gas to an undertaking that wanted to construct a new underground natural gas storage facility. In accordance with EU requirements, they submitted their exemption decision to the Commission for review. Shortly after the start of the administrative procedure at the Commission, Directive 2003/55/EC⁽²⁾ (also known as the ’Second Gas Directive’) was replaced by Directive 2009/73/EC⁽³⁾ (also known as the ‘Third Gas Directive’), giving rise to a number of amendments to the procedural rules to be applied.

4. Following that replacement, the Commission immediately applied the new directive in the present case. However, in the proceedings at first instance, by judgment of 6 September 2013,⁽⁴⁾ the General Court ruled that the procedure should have been continued and concluded under the former directive. The question of which of the two points of view should be given preference is of crucial practical significance to the widest variety of branches of EU law and is not limited to the specific facts of this case.

II – Legal context

5. Directive 2003/55 was repealed from 3 March 2011 and replaced by Directive 2009/73. By that same date, the Member States were required to transpose Directive 2009/73 into their national law.⁽⁵⁾

6. Under both Directive 2003/55 and Directive 2009/73, new gas infrastructures — including storage facilities — must, in principle, be made accessible to third parties in return for remuneration.⁽⁶⁾ That access must be guaranteed in accordance with objective, transparent and non-discriminatory criteria.⁽⁷⁾

7. However, to prevent necessary investment from being unprofitable, third parties may — under certain circumstances and for a limited period of time — be refused access to major new gas infrastructures, including storage facilities.⁽⁸⁾

8. The exemption required to refuse access to third parties is granted by the national authorities. Exemptions of this kind must be notified to the Commission without delay.⁽⁹⁾ The Commission examines whether the exemption concerned is consistent with the requirements laid down in EU law and may request that the national authorities amend or withdraw the exemption decision within a period of time prescribed in the relevant directive.⁽¹⁰⁾

9. The part of the procedure to be carried out by the Commission was initially governed by the following provisions laid down in Article 22(4) of Directive 2003/55:

‘The exemption decision shall be notified, without delay, by the competent authority to the Commission, together with all the relevant information with respect to the decision. …
…
Within two months after receiving a notification, the Commission may request that the regulatory authority or the Member State concerned amend or withdraw the decision to grant an exemption. The two month period may be extended by one additional month where additional information is sought by the Commission.
If the regulatory authority or Member State concerned does not comply with the request within a period of four weeks, a final decision shall be taken in accordance with the procedure referred to in Article 30(2).
The Commission shall preserve the confidentiality of commercially sensitive information.’

10. The successor provisions to those procedural rules can be found in Article 36(8) and (9) of Directive 2009/73:

‘(8)
The regulatory authority shall transmit to the Commission, without delay, a copy of every request for exemption as of its receipt. The decision shall be notified, without delay, by the competent authority to the Commission, together with all the relevant information with respect to the decision. …
…
(9)
Within a period of two months from the day following the receipt of a notification, the Commission may take a decision requiring the regulatory authority to amend or withdraw the decision to grant an exemption. That two-month period may be extended by an additional period of two months where further information is sought by the Commission. That additional period shall begin on the day following the receipt of the complete information. The initial two-month period may also be extended with the consent of both the Commission and the regulatory authority.
Where the requested information is not provided within the period set out in the request, the notification shall be deemed to be withdrawn unless, before the expiry of that period, either the period has been extended with the consent of both the Commission and the regulatory authority, or the regulatory authority, in a duly reasoned statement, has informed the Commission that it considers the notification to be complete.
The regulatory authority shall comply with the Commission decision to amend or withdraw the exemption decision within a period of one month and shall inform the Commission accordingly.
The Commission shall preserve the confidentiality of commercially sensitive information.
…’

III – Background to the dispute and procedure before the General Court

11. On 14 April 2009, the undertaking Globula, which in the meantime has changed its name to Moravia Gas Storage (MGS),⁽¹¹⁾ applied to the Czech Ministry of Industry and Trade⁽¹²⁾ for authorisation to build an underground gas storage facility at Dambořice (Czech Republic). In connection with that application, the undertaking also applied for a temporary exemption from the obligation to provide negotiated third-party access for the entire new capacity of the underground gas storage facility.

12. By decision of 26 October 2010, the Ministry authorised the construction of the underground gas storage facility and temporarily exempted MGS from the obligation to provide negotiated third-party access for 90% of the new storage capacity. The exemption was to apply for 15 years, starting from the effective date of the authorisation of use.

13. That exemption decision was notified to the Commission by letter of the Ministry of 11 February 2011, received on 18 February 2011.

14. On 15 April 2011, the Commission asked the Ministry for additional information, indicating to it that, if the Commission were to ask it to amend or withdraw the exemption decision, it would do so by 18 June 2011. The Ministry responded on 29 April 2011, within the time-limit set by the Commission.

15. On 13 May 2011, the Commission sent the Ministry a second request for additional information, again indicating to it that, if the Commission were to ask it to amend or withdraw the exemption decision, it would do so by 18 June 2011. The Ministry responded on 20 May 2011, within the time-limit set by the Commission.

16. By letter of 23 June 2011, signed by the Commissioner responsible for Energy, the Commission informed the Ministry that the Commission would adopt a formal decision by 29 June 2011.

17. On 27 June 2011, on the basis of Directive 2009/73, the Commission adopted the contested decision, by which it ordered the Czech Republic to withdraw the exemption. The contested decision was notified to the Czech Republic on 28 June 2011.

18. By document of 26 August 2011, MGS⁽¹³⁾ brought an action for annulment before the General Court against the contested decision. The Czech Republic was granted leave to intervene in support of the applicant in the first-instance proceedings.

19. In its judgment of 6 September 2013, the General Court addressed only the first of three pleas in law on which MGS had based its action. That plea in law, alleging errors in the determination of the applicable law,⁽¹⁴⁾ was accepted by the General Court and, as a result, the contested decision was annulled because — in the view of the General Court — it should have been based not on Directive 2009/73 but on Directive 2003/55.⁽¹⁵⁾ As reasons for its ruling, the General Court stated, in essence, that the procedural and substantive changes introduced by Article 36 of Directive 2009/73 formed ‘an indivisible whole’, to which ‘retroactive effect’‘may not be accorded’.⁽¹⁶⁾

IV – Appeal proceedings and forms of order sought by the parties

20. By document of 21 November 2013, the Commission lodged the present appeal against the judgment of the General Court. It claims that the Court should:

set aside the judgment of the General Court;
rule that the first plea in law advanced at first instance is not well founded and refer the case back to the General Court for consideration of the second and third pleas at first instance; and
reserve the costs of the proceedings at first instance and on appeal.

21. By contrast, MGS contends that the Court should:

dismiss the appeal in its entirety; and
order the Commission to pay the costs incurred by MGS in the appeal proceedings.

22. For its part, the Czech Government claims that the Court should:

dismiss the appeal as unfounded; and
order the Commission to pay the costs of the proceedings both on appeal and at first instance.

23. The Commission’s appeal was examined before the Court on the basis of the written documents. Since the Court considered that it had sufficient information on the basis of those written submissions alone, the decision was taken not to hold a hearing pursuant to Article 76(2) of the Rules of Procedure.

V – Assessment of the appeal

24. By its appeal, which is based on a single ground of appeal, the Commission essentially complains that, in the present case, the General Court wrongly held Article 22 of Directive 2003/55 to be applicable rather than Article 36 of Directive 2009/73.

25. It remains unclear why, in this context, the Commission refers to Articles 288 TFEU and 297(1) TFEU and no explanations to that effect can be found at any point in its appeal. There is, however, ultimately no need to determine what significance those two Treaty provisions⁽¹⁷⁾ are meant to have for the present case, since the actual allegation made by the Commission is that the General Court failed to have regard to the general principles of EU law on the temporal applicability of new legislation to pending cases. That is the complaint which I am going to examine now; as part of my consideration, I will begin by setting out the abovementioned principles in brief (see Section A below) before dealing with their application to the present case (see Section B below).

A – The principles relating to the temporal applicability of new legislation

26. The principles relating to the temporal applicability of new legislation form part of the general principles of EU law and can ultimately be traced back to the legal traditions common to the Member States.

27. A distinction is traditionally drawn in this regard between procedural rules and substantive rules.

28. New procedural rules are generally held to apply immediately to all procedures pending at the time those rules enter into force.⁽¹⁸⁾ However, new substantive rules are usually interpreted as applying to situations existing before their entry into force only if it clearly follows from their terms, their objectives or their general scheme that such effect must be given to them.⁽¹⁹⁾

29. Nevertheless, in the case of new substantive provisions, there is likewise a well-established principle that new rules apply immediately to the future effects of a situation which arose under the old rules.⁽²⁰⁾

30. In summary, it may be deduced from those principles recognised in settled case-law that new law is not to apply to definitively established situations save where otherwise provided by way of exception. By contrast, on-going cases in which legal situations have not yet arisen and become definitive under the old law must be assessed under the new law as soon as that new law enters into force.⁽²¹⁾

31. This applies equally to procedural matters and to questions of substantive law.

32. The immediate application of new rules to situations which are not yet definitively established is intended to facilitate the implementation of the latest legislative choices as quickly and comprehensively as possible and to contribute to the optimal achievement of the objectives of the Treaties.

33. Only in exceptional circumstances can the old rules still apply even to situations not definitively established. On the one hand, as a result of the particular features of the matter governed, it may be the case that the new rules — in particular where they entail a complex new procedure or even a fundamental systemic change — are intended to apply after they have entered into force or to situations arising with effect from a particular reference date only.⁽²²⁾ On the other hand, the protection of legitimate expectations may, where appropriate, require the application of the old rules to certain situations, the origin of which lies in the past.⁽²³⁾

B – The application of the principles to the present case

34. Directive 2003/55 was replaced by Directive 2009/73 from 3 March 2011, that is just a few days after the Commission had been charged with the review of the Czech exemption decision in the present case.

35. It is established that the substantive requirements governing both an exemption granted by national authorities and a review of the related exemption decision by the Commission laid down in Article 22 of Directive 2003/55 and in Article 36 of Directive 2009/73 do not differ in terms of content and, at most, exhibit minor, insignificant differences in wording. The sole point of dispute is the question whether, in its review of the Czech exemption decision at issue here, the Commission should have observed the procedural rules laid down in the former or in the more recent of those two provisions of the directives. This point is particularly significant in connection with the decision-making powers and time-limits available to the Commission.

36. Contrary to the view of the General Court,⁽²⁴⁾ the key issue here is less one of the retroactive effect of the new procedural rules than one of the continued effect of the old rules. It is necessary to clarify whether an administrative procedure initiated under Article 22 of Directive 2003/55 had to be concluded by the Commission under that same provision, even though at the time the contested decision was adopted Directive 2003/55 had already been repealed and, from then on, Directive 2009/73 applied as the successor legislation.

37. On the basis of the principle which I discussed above,⁽²⁵⁾ namely that new procedural rules are generally applicable immediately to all proceedings pending at the time of their entry into force, weight is undoubtedly lent to the Commission’s line of argument that its contested decision had to be adopted under the new procedural rules.

38. By contrast, the opposing view taken by MGS and the Czech Republic — a view upheld in the judgment under appeal — to the effect that, in the present case, the former procedural rules still had to be taken as the basis can prevail here only if either the particular features of the matter governed (see subsection 1 below) or overriding requirements connected with the protection of legitimate interests (see subsection 2 below) necessitated the continued effect of Directive 2003/55.

39. In all other cases, it is essential to adhere to the principle that a decision of the Commission cannot be founded on a legal basis which had already ceased to be in force at the time that decision was adopted.⁽²⁶⁾

1. No particular features of the matter governed which justify an exception to the principle of the immediate application of new procedural rules

40. In the judgment under appeal, the General Court relied quite significantly on the particular features of the matter governed to establish that Article 22 of Directive 2003/55 — and not Article 36 of Directive 2009/73 — must continue to apply in the present case. I will therefore now consider the question whether such particular features actually exist in the present case. In that connection, I will begin by examining the ‘Salumi exception’ relied on by the General Court (see sub-subsection a) below), before turning to the idea of establishing a cut-off date advanced by MGS (see sub-subsection b) below) and the principle of equal treatment invoked by the Czech Government (see sub-subsection (c) below).

a) ‘Salumi exception’: Do the procedural and substantive rules of the Third Gas Directive form an indivisible whole?

41. Relying on Salumi,⁽²⁷⁾ the General Court held in the present case that the procedural and substantive changes introduced by Article 36 of Directive 2009/73 form ‘an indivisible whole’, and that, for that reason, they ‘cannot be accorded retroactive effect’ in the present case.⁽²⁸⁾

42. This point of view is erroneous in two respects.

43. First, it should be borne in mind that, in connection with the application of Article 36 of Directive 2009/73 to an ongoing Commission procedure such as that in question here relating to the review of the Czech exemption decision, there can be no question whatsoever of a ‘retroactive effect’ in the strict sense of the words.⁽²⁹⁾ The key issue here is rather one of the immediate application of new rules to an ongoing procedure initiated under former law, that is to say at most a ’sham retroactive effect’.

44. Second, the General Court relies on an incorrect reading of Salumi. Indeed, it may in no way be inferred from that judgment that new legislation must never be applied where it becomes applicable in the course of an ongoing administrative procedure and the procedural and substantive rules contained in that legislation form an indivisible whole.

45. The exception from the immediate application of new legislation accepted in Salumi is, in reality, far more narrowly defined. It related to the particular case of a fundamental systemic change, as part of which disparate domestic legislation was replaced with uniform Community legislation. The new procedural and substantive rules contained in that Community legislation formed an indivisible whole — ‘a body of rules’ — and, with regard to their temporal application, could not be considered in isolation.⁽³⁰⁾

46. The transition from the Second Gas Directive to the Third Gas Directive does not involve such a fundamental systemic change. Rather, Directive 2009/73 constitutes the further development of a pre-existing system of common rules applicable to the internal market in natural gas. The Court has already ruled that the Salumi exception does not apply to a case in which existing EU legislation is taken over by a new act of EU law with amendments in some areas.⁽³¹⁾

47. In the present case, one might add that only certain aspects of the procedure to be followed by the Commission were changed in Article 36 of Directive 2009/73, whereas the content of the substantive provisions is unchanged as compared with Article 22 of Directive 2003/55. This constitutes a further argument against the assumption of a fundamental systemic change, as was the case in Salumi.

48. Furthermore, the fact that certain aspects of the procedural rules were amended — and potentially even significantly amended — does not on its own provide any indication as to whether procedural and substantive rules are so inextricably linked to one another in Article 36 of Directive 2009/73 that they form an indivisible whole within the meaning of Salumi.

49. Finally, this indivisibility of procedural and substantive rules is merely claimed in the judgment under appeal; the General Court does not provide any specific evidence whatsoever to support that claim. Instead, the General Court gets carried away in describing a number of changes to the procedure,⁽³²⁾ changes which were undoubtedly brought about by Directive 2009/73 and may indeed also be of some significance, but which have no bearing on the present case.⁽³³⁾

50. Accordingly, the General Court incorrectly relied on the ‘Salumi exception’ in the present case to establish that Article 36 of Directive 2009/73 cannot claim validity and instead Article 22 of Directive 2003/55 should have continued to be applied.

b) No rule establishing a cut-off date dependent on the initiation of a procedure

51. Directive 2009/73 does not contain any transitional provisions applicable to pending administrative procedures. In the absence of such a provision, there cannot be assumed to be a rule establishing a cut-off date covering the transition from Directive 2003/55 to Directive 2009/73 under which the former legal situation alone should continue to be applied to all procedures initiated prior to 3 March 2011.

52. There is also no general legal principle in EU law under which a case should always be decided in accordance with the procedural rules in force at the time the procedure was initiated. On the contrary, as I have already mentioned above, new procedural rules are generally to be applied immediately, including to already pending proceedings.⁽³⁴⁾ The same approach has been adopted, for instance, by this Court following the entry into force of changes to procedural rules.⁽³⁵⁾

53. It is true that, with regard to the provisions of EU law concerning environmental impact assessments, the Court has held that such provisions are to be applied only to those projects in connection with which a formal application was lodged after the expiry of the transposition period in the Member State in question.⁽³⁶⁾

54. However, it has presumed there to be such a rule establishing a cut-off date only in relation to the substantive issue of whether there is a requirement that projects be subject to an environmental impact assessment in the first place. By contrast, selective changes to the requirements under EU law relating to the environmental impact assessment procedure must be applied immediately, including to already pending procedures.⁽³⁷⁾

55. Furthermore, in the case of environmental impact assessments, the existence of the abovementioned rule establishing a cut-off date is to a very large extent due to the great complexity of the procedures concerned.⁽³⁸⁾ For that reason too, it cannot be readily transposed to other matters which lack a comparable level of complexity.

56. Applying the above to the present case, it must be pointed out that the introduction of Article 36 of Directive 2009/73 did not bring about a fundamental systemic change, but rather entailed selective changes to the procedural rules to be applied by the Commission. Those changes did not, for example, result in an additional burden or delay in connection with the review of exemption decisions adopted by national authorities; on the contrary, the result of those changes was the streamlining of the procedure, since the Commission is now no longer required to make an informal request to the Member State to amend or withdraw its exemption decision before the Commission adopts a final decision (as was, however, still the case under the third subparagraph of Article 22(4) of Directive 2003/55). Article 36 of Directive 2009/73 dispenses with that interim stage, thus contributing to the increased efficiency of the procedure.

57. In the light of those circumstances, an immediate application of Article 36 of Directive 2009/73 to the Commission administrative procedure at issue here would be appropriate even in the event of the application by analogy of the case-law on environmental impact assessments to the present case.

58. I do not share the concern expressed by the Czech Government that the administrative procedure might be derailed like a train if halfway through that procedure a change from Article 22 of Directive 2003/55 to Article 36 of Directive 2009/73 — the new legal basis — were effected. This is because, despite the Commission immediately taking the new procedural rules as a basis, the train still reached its intended destination even though the timetable might have changed slightly in the course of the journey. By contrast, continued travel along the track set by Directive 2003/55 would, in my view, have led into a siding.

c) Principle of equal treatment

59. The Czech Government likewise refers to the ‘principles of equality and justice’. In its view, an unjustified difference in treatment would ensue if the choice of the applicable legislation were to be placed at the discretion of the Commission and — in the case of procedures initiated simultaneously — would depend solely on the date of the adoption of the respective decision by the Commission.

60. This argument must likewise be rejected.

61. The date on which the Commission decides on the compatibility of a national exemption with the rules governing the internal market in natural gas is not a matter at the discretion of the Commission. In accordance with the principle of sound administration (see also Article 41 of the Charter of Fundamental Rights), the Commission is in fact required to handle every case carefully, impartially and swiftly.

62. The fact that the Commission may have reached a decision on the compatibility of certain national exemptions before 3 March 2011 and thus still under the old law, whereas it decided on the compatibility of other national exemptions only after that date and therefore under the new provisions, does not, taken on its own, constitute an infringement of the principle of equal treatment or of general considerations of justice. The date ordered by the Union legislature as the start date for the application of Directive 2009/73, that is 3 March 2011, is, rather, an objective distinguishing criterion.

63. The Commission could be held to have infringed the principles of sound administration and equal treatment and, ultimately, to have misused its powers only if it were to be proven that, in its handling of certain procedures relating to the review of national exemption decisions, the Commission arbitrarily sometimes delayed and sometimes accelerated the adoption of its final decisions with a view to adopting some decisions prior to the entry into force of Directive 2009/73 and some thereafter.⁽³⁹⁾ There is absolutely no evidence of this in the present case, however. On the contrary, it is apparent from the findings of the General Court that the administrative procedure had been running for only a few days when the change in the law was effected on 3 March 2011 by the transition to Directive 2009/73.

2. No interest worthy of protection in the continued application of the former rules

64. Last but not least, it remains to be considered whether, in the present case, overriding requirements relating to the protection of legitimate interests necessitated the continued application of Directive 2003/55.

65. Such requirements were relied on by MGS in particular, but also by the Czech Government, in the appeal proceedings before the Court.

66. Their line of argument is, however, based on the incorrect premiss that, since the adoption of the exemption decision by the Czech authorities, a definitively established situation has arisen which may no longer be called into question by the application of legislation adopted at a later date, such as Article 36 of Directive 2009/73.

67. As the Court has already held, the principle of legitimate expectations cannot be extended to the point of generally preventing a new rule from applying to the future effects of situations which arose under the earlier rule.⁽⁴⁰⁾

68. This is a fortiori true in a procedural context such as that at issue here, since the exemption procedure for the rules applicable to the internal market in natural gas provided for in Article 22 of Directive 2003/55, as is the case with its successor provision in Article 36 of Directive 2009/73, is a single procedure, although it takes place in two stages, one of which is conducted at national level and the other at EU level.

69. In the judgment under appeal, the General Court correctly found that there was such a single procedure,⁽⁴¹⁾ but did not draw from that finding the necessary conclusions for the dispute pending before it.

70. The General Court should rightly have concluded from the existence of a single procedure consisting of two stages that definitive legal situations⁽⁴²⁾ can never exist simply on the basis of an exemption decision adopted by the national authorities. This is because, firstly, on the adoption of the Czech exemption decision, only the first of two stages of the single administrative procedure was completed. Secondly, unlike other types of procedure, such as the procedure for the award of public procurement contracts referred to by MGS,⁽⁴³⁾ the exemption procedure under Directives 2003/55 and 2009/73 necessarily implies that a decision adopted during the first stage can be called into question again as part of the second stage.

71. It may be that an exemption granted by a national authority is provisionally applicable until the Commission has decided upon its compatibility with the rules governing the internal market in natural gas. However, no individual has an interest worthy of protection in the existence of the exemptions granted by the national authority until the Commission adopts a final decision.⁽⁴⁴⁾

72. Admittedly, as MGS points out, it may indeed arise that, in a specific case, the Commission does not require the national authorities to make amendments to or withdraw their exemption decision. However, that situation is at best a possibility and the undertakings concerned may by no means rely on it. They must rather anticipate that the Commission will be requiring further amendments or even the withdrawal of the exemption decision concerned; this applies under Directive 2003/55 as well as within the scope of application of Directive 2009/73.

73. In view of those circumstances, there are no overriding requirements relating to the protection of legitimate interests which would prevent the application of the rules laid down in Directive 2009/73 to the facts of this case.

C – Summary

74. All in all, the General Court thus misapplied the general principles of EU law on the temporal application of legislation. The judgment under appeal is therefore vitiated by an error of law, which is why it must be quashed (first sentence of the first paragraph of Article 61 of the Statute of the Court of Justice).

D – Supplementary comments on the time-limit issue

75. In the procedure before the Court, MGS argued that the Commission lacks the power to adopt a decision such as that contained in the contested decision because it exceeded the time-limit available to it.

76. This line of argument is based on the premiss that, in the present proceedings, the former legal position under Directive 2003/55 should have been taken as the basis. However, as I have made clear in the foregoing, the new legal position under Directive 2009/73 applies to the decision-making process in the present case, and the Commission indisputably observed all the time-limits laid down in that directive. The argument advanced by MGS that the contested decision was adopted outside the applicable time-limit is thus obsolete.

77. However, even if it were to be assumed that the former legal position under Directive 2003/55 still applies in the present case, it should by no means necessarily be assumed that the Commission no longer has the power to adopt decisions because of a failure to comply with time-limits. It is true that there are indeed some areas of EU law in which, on expiry of a particular time-limit, the fiction that the Commission’s silence constitutes authorisation applies and the Commission is denied the power to intervene.⁽⁴⁵⁾ Such cases are, however, rare and generally have their basis in an express order issued by the EU legislature;⁽⁴⁶⁾ neither Directive 2003/55 nor Directive 2009/73 contains such a provision.

78. A ‘guillotine effect’, under which on expiry of the relevant time-limit the Commission would lack the power to adopt a decision, should therefore not necessarily be presumed to exist in the present case.⁽⁴⁷⁾ However, if there were no good reason for the Commission failing to observe a time-limit in the context of Article 22 of Directive 2003/55 or of Article 36 of Directive 2009/73, this could engage the non-contractual liability of the European Union, provided that the conditions laid down in the second paragraph of Article 340 TFEU are met.

VI – Setting aside of the judgment under appeal and referral back to the General Court

79. Where the Court of Justice quashes the judgment of the General Court, it may itself give final judgment in the matter where the state of the proceedings so permits (first alternative in the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice).

80. In the present case, the state of the proceedings permits the Court to give final judgment in part.

81. As I have stated above, the General Court erred when it found Directive 2003/55 to be applicable to the present case. The Commission had in fact quite rightly based the contested decision on Directive 2009/73. The first plea in law on which MGS based its action for annulment before the General Court is therefore unfounded. To this extent, the Court may give final judgment in the matter.

82. However, with regard to the second and, in particular, the third pleas in law upon which MGS additionally based its action for annulment, those pleas were not discussed by the General Court in the judgment under appeal. It is true that the written submissions of the parties at first instance contain observations in that regard. Nevertheless, I am doubtful whether the Court of Justice has sufficient information on the basis of those written submissions alone to decide definitively the fate of the action for annulment brought before the General Court.

83. In those circumstances, it appears appropriate to refer the case back to the General Court so that it may decide on the second and third pleas in law advanced by MGS (second alternative in the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice).

VII – Costs

84. Where the appeal is founded and — as I propose in the present case — the Court of Justice refers the case back to the General Court, the decision as to the costs is reserved (Article 184(2) of the Rules of Procedure a contrario).

VIII – Conclusion

85. On the basis of the above considerations, I propose that the Court should:

set aside the judgment of the General Court of the European Union of 6 September 2013 in Globula v Commission (T‑465/11, EU:T:2013:406 );
refer the case back to the General Court so that it may decide on the second and third pleas in law advanced in the action for annulment of Commission Decision C(2011) 4509 of 27 June 2011;
reserve the costs.