Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE GENERAL COURT (Second Chamber)

13 August 2024 (*)

(Action for annulment – State aid – Tax exemption for income generated by interest and intellectual property royalties – Advance tax rulings in favour of multinational undertakings – Decision to extend the formal investigation procedure provided for in Article 108(2) TFEU – Act not open to challenge – Aid measure implemented on the date of the decision – Inadmissibility)

In Case T‑37/23,

Mead Johnson Nutrition (Asia Pacific) Pte Ltd, established in Singapore (Singapore),

MJN Global Holdings BV, established in Amsterdam (Netherlands),

Mead Johnson Nutrition Co., established in Chicago, Illinois (United States),

represented by C. Quigley KC, M. Whitehouse and P. Halford, Solicitors,

applicants,

supported by

Government of Gibraltar, represented by K. Nordlander and K. Van der Putten, lawyers,

intervener,

v

European Commission, represented by L. Flynn and B. Stromsky, acting as Agents,

defendant,

THE GENERAL COURT (Second Chamber),

composed of A. Marcoulli, President, V. Tomljenović (Rapporteur) and R. Norkus, Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

makes the following

Order

1        By their action under Article 263 TFEU, the applicants, Mead Johnson Nutrition (Asia Pacific) Pte Ltd, MJN Global Holdings BV and Mead Johnson Nutrition Co., seek annulment of Commission Decision C(2022) 7665 final of 31 October 2022 on State aid SA.34914 (2013/C) implemented by the United Kingdom in respect of the Gibraltar Corporate Income Tax Regime, a summary of which was published in the Official Journal of the European Union (OJ 2023 C 52, p. 10) (‘the contested decision’).

 Background to the dispute

2        The applicants are companies belonging to the international Mead Johnson Nutrition group of companies. MJN Holdings (Gibraltar) Ltd (‘MJN GibCo’), which is the subject of the contested decision, is a company belonging to that group. The contested decision forms part of a State aid control procedure initiated in 2013 following a complaint lodged in 2012 by the Kingdom of Spain concerning the taxation of Gibraltar companies.

3        That control procedure resulted in Commission Decision (EU) 2019/700 of 19 December 2018 on the State Aid SA.34914 (2013/C) implemented by the United Kingdom as regards the Gibraltar Corporate Income Tax Regime (OJ 2019 L 119, p. 151) (‘the initial final decision’).

4        In the initial final decision, the European Commission found, inter alia, that the tax treatment granted by the Government of Gibraltar on the basis of advance tax rulings granted to five Gibraltar-based companies, including MJN GibCo, constituted unlawful individual State aid incompatible with the internal market.

5        The initial final decision was the subject of an action for annulment before the Court, brought inter alia by the applicants.

6        In its judgment of 6 April 2022, Mead Johnson Nutrition (Asia Pacific) and Others v Commission (T‑508/19, EU:T:2022:217), the Court annulled in part the initial final decision in so far as it found that there was individual aid in favour of MJN GibCo. The Court held that, although the advance tax ruling granted to MJN GibCo formed part of the subject matter of the formal investigation procedure as a potential individual aid measure, neither the decision to initiate the formal investigation procedure nor the decision to extend that procedure contained the information necessary to identify the nature and extent of the aid measure granted to MJN GibCo after 31 December 2013, as examined in the initial final decision. The Court thus held that the Commission had adopted the initial final decision in breach of the right of interested parties to put forward their observations in the formal investigation procedure with regard to the aid granted to MJN GibCo after 31 December 2013.

7        Following the partial annulment of the initial final decision, the Commission adopted the contested decision.

8        By the contested decision, the Commission extended the formal investigation procedure relating to the system of taxation of corporate income in Gibraltar to include the tax treatment of MJN GibCo from 1 January 2014 until its dissolution on 16 October 2018.

9        The Commission stated that, following the partial annulment of the initial final decision, it had re-examined the information submitted by the United Kingdom and the Gibraltar authorities and had decided to extend the formal investigation procedure under Article 108(2) TFEU.

10      The Commission recalled that the advance tax ruling (‘the ATR’), granted to MJN GibCo on 11 September 2012, confirmed the non-taxation, in respect of that company, of income generated by intellectual property royalties as a result of its shareholding in a Dutch limited partnership, within the Mead Johnson group. In the Commission’s view, following the amendment to the Gibraltar Income Tax Act 2010, which was enacted in 2013 and came into force on 1 January 2014, providing that royalty income was subject to taxation in Gibraltar irrespective of its source, the Gibraltar authorities should have considered that MJN GibCo was taxable on intellectual property royalties received after 1 January 2014.

11      Accordingly, the Commission considered that the continuation of MJN GibCo’s 2012 ATR, following the 2013 amendment to the Gibraltar Income Tax Act 2010 until the dissolution of MJN GibCo on 16 October 2018, should be considered to be the measure in question.

12      In particular, following a preliminary examination of the measure in question, the Commission provisionally considered that it conferred State aid on MJN GibCo in the form of an exemption from corporation tax, which was potentially incompatible with the internal market. Accordingly, the Commission has asked the United Kingdom to submit its observations and to provide any information relevant to the assessment of the measure in question.

 Forms of order sought

13      The applicants, supported by the Government of Gibraltar, claim that the Court should:

–        annul the contested decision;

–        order the Commission to pay the costs.

14      The Commission contends that the Court should:

–        dismiss the action as inadmissible or unfounded;

–        order the applicants to pay the costs.

 Law

15      Under Article 129 of the Rules of Procedure of the General Court, on a proposal from the Judge-Rapporteur, the Court may at any time of its own motion, after hearing the main parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case.

16      In the present case, the Court considered that it had been sufficiently informed by the documents in the file and decided to give a decision without taking further steps in the proceedings.

17      Without formally raising a plea of inadmissibility, the Commission argued in its defence that the action was inadmissible on the ground that the contested decision did not constitute a measure against which an action for annulment could be brought under Article 263 TFEU.

18      In essence, the Commission contends that the contested decision is not a challengeable act, since it consists merely of an intermediate measure the purpose of which is to prepare the final decision terminating the procedure under Article 108(2) TFEU. In particular, the Commission submits that a decision to initiate the formal investigation procedure, which concerns a measure which is no longer being implemented, is not a challengeable act under Article 263 TFEU.

19      At the invitation of the Court, the applicants, in their reply, took a position on that plea of inadmissibility. Thus, supported by the Government of Gibraltar, they stated that the contested decision was a challengeable act and that the action was admissible, in so far as they were not challenging the content of the Commission’s provisional analysis, but the legality of that decision on account of the Commission’s lack of competence, the infringement of essential procedural requirements and the unreasonable period within which that decision was adopted. In addition, they argue that the suspension of a potential aid measure is not the only legal effect produced by a decision to initiate the formal investigation procedure; other legal effects flow from it. They thus maintain that they must be able to seek judicial review of the contested decision in so far as it infringes their right to a fair trial and is contrary to the rule of law.

20      The Commission contends that the applicants’ arguments concern the merits of the action and are not relevant to establishing its admissibility, which is a question separate from and prior to that relating to the substance of the action.

 Review of the applicable case-law principles

21      It is settled case-law that an action for annulment, within the meaning of Article 263 TFEU, is available in respect of all acts adopted by the institutions, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his or her legal position (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 42; and of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 36).

22      Furthermore, it should be borne in mind that intermediate measures intended to pave the way for the final decision do not, in principle, constitute acts which may form the subject matter of an action for annulment. The intermediate measures thus referred to are, first and foremost, acts which express a provisional opinion of the institution (see judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 50 and the case-law cited).

23      An action for annulment brought against a measure expressing a provisional opinion could require the EU Courts to give an assessment on matters on which the competent institution, body, office or agency has not yet had the opportunity to state its position, which would be incompatible with the system of division of powers and remedies provided for by the TFEU (see judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 104 and the case-law cited).

24      Furthermore, it follows from the case-law that an intermediate measure is also not subject to review if it is established that the illegality attached to that measure may be relied on in support of an action brought against the final decision for which it represents a preparatory step. In such circumstances, the action brought against the decision terminating the procedure will afford sufficient judicial protection (see judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 53 and the case-law cited).

25      Thus, in State aid matters, measures which definitively establish the Commission’s position at the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the applicant, constitute acts open to challenge, and not intermediate measures whose purpose is to prepare for the final decision, which do not have those effects (judgment of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 42).

26      Furthermore, it is worth recalling the case-law according to which the admissibility of an action must be assessed by reference to the situation prevailing at the time when the application was lodged (judgments of 27 November 1984, Bensider and Others v Commission, 50/84, EU:C:1984:365, paragraph 8, and of 18 April 2002, Spain v Council, C‑61/96, C‑132/97, C‑45/98, C‑27/99, C‑81/00 and C‑22/01, EU:C:2002:230, paragraph 23).

27      With regard to a decision to initiate the formal State aid investigation procedure, the EU Courts have made a distinction according to whether it concerns measures that are in the process of being implemented or measures that have already been implemented.

28      Thus, in the first place, as regards decisions to initiate the formal investigation procedure in respect of measures in the course of implementation, it is clear from the case-law that, where the Commission classifies a measure in the course of implementation as new aid, such a decision entails independent legal effects, particularly in so far as concerns the suspension of that measure (judgments of 9 October 2001, Italy v Commission, C‑400/99, EU:C:2001:528, paragraph 62; of 23 October 2002, Diputación Foral de Álava and Others v Commission, T‑346/99 to T‑348/99, EU:T:2002:259, paragraph 33; and of 25 March 2009, Alcoa Trasformazioni v Commission, T‑332/06, not published, EU:T:2009:79, paragraph 35). That conclusion applies not only where the measure being implemented is considered by the authorities of the Member State concerned to be existing aid, but also where those authorities consider that the measure covered by the decision to initiate the procedure does not fall within the scope of Article 107(1) TFEU (see, to that effect, judgments of 23 October 2002, Diputación Foral de Álava and Others v Commission, T‑346/99 to T‑348/99, EU:T:2009:259, paragraph 33, and of 25 March 2009, Alcoa Trasformazioni v Commission, T‑332/06, not published, EU:T:2009:79, paragraph 35).

29      A decision to initiate the formal investigation procedure in respect of a measure which is being implemented and which the Commission classifies as new aid necessarily alters the legal scope of the measure in question and the legal position of the companies benefiting from it, in particular as regards the continued implementation of that measure. Until the adoption of such a decision, the Member State, the beneficiary undertakings and the other economic operators may believe that the measure is lawfully implemented as a general measure falling outside the scope of Article 107(1) TFEU or as existing aid. By contrast, following the adoption of such a decision, there is, at the very least, significant doubt as to the legality of the measure, which, without prejudice to the right to apply to the interim relief court for interim measures, must lead the Member State to suspend its application, since the opening of the formal investigation procedure precludes an immediate decision concluding that the measure is compatible with the internal market, which would allow it to be lawfully continued. Such a decision could also be invoked before a national court called upon to draw all the consequences arising from the infringement of the last sentence of Article 108(3) TFEU. Lastly, it is likely to lead the undertakings benefiting from the measure to refuse in any event to accept further payments or new advantages, or to set aside the sums necessary for any subsequent financial compensation. In their relations with those beneficiaries, the business community will also take account of their weakened legal and financial position (judgments of 9 October 2001, Italy v Commission, C‑400/99, EU:C:2001:528, paragraph 59; of 23 October 2002, Diputación Foral de Álava and Others v Commission, T‑346/99 to T‑348/99, EU:T:2002:259, paragraph 34; and of 10 April 2019, Deutsche Post v Commission, T‑388/11, EU:T:2019:237, paragraph 42).

30      The independent legal effects referred to in paragraphs 27 to 29 above are to be understood as the mandatory legal effects produced by preparatory or intermediate measures, against which the beneficiaries of the alleged State aid measure cannot be ensured sufficient judicial protection by the bringing of an action against the decision terminating the procedure concerning the alleged State aid (order of 8 December 2015, Italy v Commission, T‑673/14, not published, EU:T:2015:969, paragraph 24).

31      Thus, it has already been held that a decision to initiate the formal investigation procedure is to be regarded as having independent legal effects where, in the light of the conclusions it contains, it produces a sufficiently immediate and certain legally binding effect on the Member State to which it is addressed and on the beneficiary or beneficiaries of the aid measure under investigation. It is therefore a decision which, by its effect alone and without the need for other measures by the Commission or another authority, obliges the Member State to which it is addressed to adopt one or more measures in order to comply with it (see order of 8 December 2015, Italy v Commission, T‑673/14, not published, EU:T:2015:969, paragraph 25 and the case-law cited).

32      In such circumstances, the intervention of the national courts results from the direct effect conferred on the prohibition on implementing aid plans laid down in the last sentence of Article 108(3) TFEU. In that regard, the Court has made it clear that the immediate enforceability of the prohibition on implementation referred to in that provision extends to all aid which has been implemented without being notified (judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 29). The initiation by the Commission of the formal investigation procedure under Article 108(2) TFEU cannot therefore release national courts from their duty to safeguard the rights of individuals faced with a possible breach of Article 108(3) TFEU (judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 32).

33      In the event that the Commission has not yet initiated the formal investigation procedure and has therefore not yet ruled on the question as to whether the measures examined are liable to constitute State aid, the national courts, seised of a request that they should draw the appropriate conclusions from a possible infringement of the last sentence of Article 108(3) TFEU, may have cause to interpret and apply the concept of aid with a view to determining whether those measures should have been notified to the Commission (judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 34).

34      Consequently, where the Commission has initiated the formal investigation procedure in respect of a measure which is in the course of being implemented, national courts are required to adopt all the necessary measures with a view to drawing the appropriate conclusions from an infringement of the obligation to suspend the implementation of that measure (judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 42).

35      In the second place, by contrast, with regard to decisions to initiate the formal investigation procedure in respect of measures which have already been implemented, it has been held that, unlike a decision to initiate the formal investigation procedure in respect of a measure which is in the process of being implemented, a decision of that kind in respect of a measure which is no longer being implemented does not have independent legal effects, since it is not immediate, certain and sufficiently binding on the Member State to which it is addressed and on the beneficiary or beneficiaries of the measure under review (judgment of 16 October 2014, Alpiq RomIndustries and Alpiq RomEnergie v Commission, T‑129/13, not published, EU:T:2014:895, paragraph 37, and order of 3 March 2015, Gemeente Nijmegen v Commission, T‑251/13, EU:T:2015:142, paragraph 37).

36      First, a measure which has been fully implemented on the date on which the decision to initiate the formal investigation procedure was adopted cannot be suspended. Therefore, as regards the suspension of the measure in question, such a decision cannot have a sufficiently immediate and certain legally binding effect on the Member State and, in particular, on the national courts (see, to that effect, order of 3 March 2015, Gemeente Nijmegen v Commission, T‑251/13, EU:T:2015:142, paragraphs 38 and 39).

37      Secondly, a decision to initiate the formal investigation phase does not, save in exceptional circumstances, include a provisional recovery order. Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9) imposes very strict conditions on the Commission when it considers ordering the Member State concerned to recover aid provisionally. For example, Article 13(2) of Regulation 2015/1589 requires that there be no doubt that the measure in question constitutes aid, that there is an urgency to act and that there is a serious risk of substantial and irreparable damage to a competitor. Such conditions, although laid down for the adoption of a decision which is separate from and different in scope from the decision to initiate the formal investigation procedure, constitute indications that there is no general obligation on the recipient Member State to recover unlawfully paid aid arising from that decision alone (see, to that effect, judgment of 16 October 2014, Alpiq RomIndustries and Alpiq RomEnergie v Commission, T‑129/13, not published, EU:T:2014:895, paragraph 38).

38      Thirdly, it has been held that, in proceedings before a national court which have as their object the recovery of aid, the obligation on the national court to adopt safeguard measures exists only if the conditions justifying such measures are met (judgment of 16 October 2014, Alpiq RomIndustries and Alpiq RomEnergie v Commission, T‑129/13, not published, EU:T:2014:895, paragraph 39).

39      In that regard, it should be borne in mind that, unlike the obligation to suspend the measure under investigation arising from a decision to initiate the formal investigation phase, which is taken in respect of a measure which is being implemented, the recovery of unlawful aid is, as a general rule, likely to take place only in the context of a dispute before the national court, the outcome of which is, by its nature, uncertain, having regard to the different parameters which that court must take into consideration before it can order the beneficiary of unlawful aid to repay it (judgment of 16 October 2014, Alpiq RomIndustries and Alpiq RomEnergie v Commission, T‑129/13, not published, EU:T:2014:895, paragraph 41).

40      Accordingly, a decision to initiate the formal investigation procedure in respect of a measure which is no longer being implemented cannot be regarded as having an immediate, certain and sufficiently binding effect on the Member State to oblige it to recover the aid unlawfully paid (see order of 8 December 2015, Italy v Commission, T‑673/14, not published, EU:T:2015:969, paragraph 32 and the case-law cited).

41      On the basis of those factors, the Court has already held that a decision to initiate the formal investigation procedure in respect of a measure which is no longer being implemented does not have independent legal effects and, accordingly, does not produce binding legal effects. It is therefore not a challengeable act within the meaning of Article 263 TFEU (see order of 8 December 2015, Italy v Commission, T‑673/14, not published, EU:T:2015:969, paragraph 34 and the case-law cited).

42      It is in the light of those considerations that it must be determined whether the contested decision constitutes an act intended to produce binding legal effects and, therefore, a challengeable act within the meaning of Article 263 TFEU.

 Application to the present case

43      In the first place, it should be noted that MJN GibCo was dissolved on 16 October 2018. It is clear from the contested decision that the measure which is the subject of the extended formal investigation phase consists in the application of the advance ruling granted to MJN GibCo between 1 January 2014 and its dissolution. Accordingly, the measure in question had already been implemented when the contested decision was adopted, namely on 31 October 2022, and, necessarily, when the present action was brought. Consequently, following the contested decision, it was no longer possible to suspend the measure in question, since it had already been implemented.

44      However, the applicants submit that a decision to initiate the formal investigation procedure, such as the contested decision, has been held to be a challengeable act where the Commission reopens a formal investigation procedure after having previously closed it.

45      In that regard, it should be noted that, in the case which gave rise to the judgment on which the applicants rely in support of their argument, the opening of the formal investigation phase concerned measures which were in the process of being implemented on the date of that opening decision and which were therefore capable of being suspended (see, to that effect, judgment of 24 October 2013, Deutsche Post v Commission, C‑77/12 P, not published, EU:C:2013:695, paragraphs 27, 52 to 54 and 56).

46      Admittedly, the Court held that where the measure had ceased to be enforced in the course of the formal investigation procedure and that procedure had not been terminated by the adoption of a final decision, the effects of the decision to open such a review procedure continued and that, therefore, the beneficiary of the measure retained an interest in bringing proceedings to challenge the decision to initiate it for the period during which it had produced effects, that is to say, during the period in which the measure was still being implemented (see, to that effect, judgment of 9 September 2014, Hansestadt Lübeck v Commission, T‑461/12, EU:T:2014:758, paragraph 37 (not published)).

47      In that context, the Court has recalled that, where, pursuant to Article 108(3) TFEU, the Commission has initiated a formal investigation procedure with regard to a measure which has not been notified and is in the course of implementation, a national court hearing an application for the cessation of the implementation of that measure and for the recovery of the sums already paid is required to adopt all the measures that are necessary in order to draw the appropriate conclusions from any infringement of the obligation to suspend the implementation of that measure (judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 29).

48      Thus, in the case which gave rise to the judgments referred to in paragraphs 46 and 47 above, the General Court and the Court of Justice took into consideration the fact that the measure in question was being enforced at the time of adoption of the decision to initiate the formal investigation procedure, although its enforcement subsequently ceased in the course of those proceedings, and that, consequently, at the time of adoption of that decision, its enforcement had to be suspended. In particular, the Court of Justice stated that it was in order to draw the consequences of any breach of the obligation to suspend the execution of that measure that the national court could decide to suspend the execution of the measure which was the subject matter of the dispute before it and to order the recovery of the amounts already paid (order of 13 November 2019, EDP España v Commission, C‑536/19 P(I), not published, EU:C:2019:965, paragraph 40).

49      Such case-law cannot be transposed to the present case, since, at the time when the contested decision was adopted, the measure in question was no longer being implemented and there could therefore no longer have been any breach of the obligation to suspend the implementation of that measure.

50      In the second place, as regards the possibility that interim measures may be adopted, it should be noted that, in the present case, the Commission did not provide for such measures when adopting the contested decision. Moreover, such measures require the fulfilment of a number of conditions justifying them, as indicated in paragraph 37 above, the existence of which has not been raised or proven in the present case.

51      In that regard, it should be recalled that the measure in question was in force between 1 January 2014 and 16 October 2018 and was the subject of the initial final decision, adopted on 19 December 2018, which found that that measure constituted unlawful individual State aid that was incompatible with the internal market. Although the initial final decision was annulled by the judgment of 6 April 2022, Mead Johnson Nutrition (Asia Pacific) and Others v Commission (T‑508/19, EU:T:2022:217), no interim measure had been ordered in the meantime.

52      Furthermore, no evidence was brought before the Court to suggest that there was, in the present case, a ‘situation of urgency’ or a ‘serious risk of substantial and irreparable damage to a competitor’ which might possibly lead the Commission, under Article 13(2) of Regulation 2015/1589, to order the Member State concerned to recover the aid in question.

53      Moreover, while it cannot be ruled out that a national court may order interim measures in order to safeguard, in particular, the interests of the parties concerned pending a final decision by the Commission (see, to that effect, order of 13 November 2019, EDP España v Commission, C‑536/19 P(I), not published, EU:C:2019:965, paragraph 40), in the present case no argument or evidence has been put forward to support the view that the conditions applicable under the national law in question were fulfilled for a national court to adopt such measures.

54      Furthermore, and in any event, the mere possibility that a national court might order interim measures, taken in the abstract and without any concrete argument or evidence of such a possibility being put forward, cannot be regarded as a sufficiently immediate and certain legally binding effect flowing from the decision to initiate the formal investigation phase, within the meaning of the case-law cited in paragraph 31 above.

55      In the third place, it should be recalled that the Court of Justice has indicated that the obligation to suspend the implementation of the measure in question is not the only legal effect of a decision to initiate the formal investigation procedure (judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 30).

56      Depending on their specific situation, the beneficiaries of measures may be exposed to the risk that, following a decision to initiate the formal investigation procedure, a national court orders the recovery of any aid granted by those measures (see, to that effect, judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 31).

57      Even if the national court, seised of an application to that effect, might have to order the recovery of the aid in question, irrespective of whether the measure in question is in the course of implementation on the date of the decision to open the formal examination procedure, that does not confer on that decision an effect which is immediate, certain and sufficiently binding (order of 3 March 2015, Gemeente Nijmegen v Commission, T‑251/13, EU:T:2015:142, paragraph 44).

58      Furthermore, it should be emphasised, in the light of the Court’s case-law, that there is no absolute and unconditional obligation requiring the national court automatically to follow the Commission’s provisional assessment. In particular, it has already been held that, where the national court entertains doubts as to whether the measure at issue constitutes State aid within the meaning of Article 107(1) TFEU or as to the validity or interpretation of the decision to initiate the formal investigation procedure, first, it may seek clarification from the Commission and, secondly, in accordance with the second and third paragraphs of Article 267 TFEU, it may or must refer a question to the Court for a preliminary ruling (judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 44).

59      In any event, in the present case, no other legal effect arising from the decision to initiate the formal investigation phase, including the risk that a national court might order the recovery of any aid, has been raised by the applicants. The applicants merely submit that the action is admissible in the light of the grounds for annulment relied on by them, namely the Commission’s lack of competence to adopt the contested decision, the Commission’s failure to take account of the information submitted by them and the breach of the duty of sound administration by reason of the period within which the decision was taken.

60      Accordingly, in the present case, the contested decision cannot be regarded as having sufficiently immediate and certain legally binding effects.

61      That conclusion cannot be called into question by the applicant’s arguments, which relate to the Commission’s lack of competence to adopt the contested decision, the Commission’s failure to take account of the information sent by the applicants and the breach of the principle of sound administration as a result of the delay in adopting the decision.

62      In that regard, first, those arguments relate to the merits of the contested decision and are therefore inoperative for the purposes of examining the admissibility of the action (see, to that effect, order of 14 September 2015, Slovakia v Commission, T‑678/14, not published, EU:T:2015:661, paragraph 55).

63      Secondly, the applicants claim that, in so far as they do not challenge the substance of the contested decision, but raise questions inherent in its external legality which, moreover, may be raised by the Court of its own motion, they are entitled to seek review of that decision by the EU Courts.

64      In that regard, it should be borne in mind that the conditions governing the admissibility of an action for annulment, in particular those relating to the challengeable nature of the measure against which the action is brought, are distinct from and prior to the question of the legality of the measure itself, which is a matter for the substance of the action, and that irrespective of whether the pleas or arguments in question concern external legality, in particular those based on the lack of competence of the institution which adopted the act or on a breach of essential procedural requirements, or whether they concern its internal legality, in other words the substance of the act in question.

65      Thirdly, the applicants claim that the unlawfulness which they allege against the contested decision cannot be remedied by any final decision of the Commission.

66      In that regard, it should be noted that the applicants do not put forward any argument in support of such a claim. In any event, it must be held that the lack of competence of the institution which adopted the measure, the failure of that institution to take account of all the relevant information and the lateness of the decision adopted by it, as alleged by the applicants, are all grounds of illegality capable of being relied on against the Commission’s final decision in an action for annulment of that decision and, where appropriate, may lead to its annulment in so far as the Court considers them to be established. Consequently, the action brought against the decision terminating the formal investigation procedure will be able to provide sufficient judicial protection for the applicants, within the meaning of the case-law cited in paragraph 24 above.

67      Fourthly, in so far as the applicants rely on Article 47 of the Charter of Fundamental Rights in order to argue that their right to an effective remedy and respect for their rights of defence, in the form of a fair trial, would imply that the present action is admissible, it should be borne in mind that that article is not intended to change the system of judicial review laid down by the Treaties, particularly the rules relating to the admissibility of direct actions brought before the EU Courts (see judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 97 and the case-law cited).

68      It follows from the foregoing that the contested decision cannot, in the present case, be classified as a challengeable act.

69      The action must therefore be dismissed as inadmissible.

 Costs

70      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

71      Under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in paragraphs 1 and 2 of that article to bear its own costs. In the present case, the Government of Gibraltar, which intervened in support of the form of order sought by the applicants, is to bear its own costs.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby orders:

1.      The action is dismissed as inadmissible;

2.      Mead Johnson Nutrition (Asia Pacific) Pte Ltd, MJN Global Holdings BV and Mead Johnson Nutrition Co. shall pay the costs;

3.      The Government of Gibraltar shall bear its own costs.

Luxembourg, 13 August 2024.

*      Language of the case: English.

© European Union
The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.