CJEU, 7th chamber, July 21, 2020, No C-436/19 P

THE COURT (Seventh Chamber),

1 By their appeal, Abaco Energy SA and the 1 322 other appellants whose names are set out in the Annex to this order seek to have set aside the order of the General Court of the European Union of 25 March 2019, Abaco Energy and Others v Commission (T‑186/18, not published, EU:T:2019:206) (‘the order under appeal’), by which the General Court dismissed the appellants’ action for annulment of Commission Decision C(2017) 7384 final of 10 November 2017 relating to State aid SA.40348 (2015/NN) concerning support for electricity generation from renewable energy sources, cogeneration and waste (OJ 2017 C 442, p. 1) (‘the decision at issue’), implemented by the Kingdom of Spain, in part due to the General Court’s manifest lack of jurisdiction to hear and rule on that action and in part as inadmissible.

 Background to the dispute

2 The background to the dispute was set out by the General Court in paragraphs 1 to 12 of the order under appeal and may, for the purposes of the present proceedings, be summarised as follows.

3 The appellants own and operate plants in Spain that generate electricity from renewable energy sources. As such, they benefited from a support scheme governed, inter alia, by Real Decreto 661/2007 por el que se regula la actividad de producción de energía eléctrica en régimen especial (Royal Decree 661/2007 regulating the production of electricity under the special regime) of 25 May 2007 (BOE No 126 of 26 May 2007, p. 22846). That decree set up a premium economic scheme to support the generation of electricity from renewable energy sources (‘the previous scheme’). The previous scheme was not notified to the European Commission.

4 In the course of 2013, the Spanish authorities introduced a specific remuneration system to support the generation of electricity from renewable energy sources (‘the current scheme’). The current scheme is based, inter alia, on the following texts:

– Real Decreto-ley 9/2013 por el que se adoptan medidas urgentes para garantizar la estabilidad financiera del sistema eléctrico (Royal Decree-Law 9/2013 adopting urgent measures to ensure the financial stability of the electricity system) of 12 July 2013 (BOE No 167 of 13 July 2013, p. 52106);

– Ley 24/2013 del Sector Eléctrico (Law 24/2013 on the electricity sector) of 26 December 2013 (BOE No 310 of 27 December 2013, p. 105198);

– Real Decreto 413/2014 por el que se regula la actividad de producción de energía eléctrica a partir de fuentes de energía renovables, cogeneración y residuos (Royal Decree 413/2014 laying down rules on electricity generation from renewable energy sources, cogeneration and waste) of 6 June 2014 (BOE No 140 of 10 June 2014, p. 43876); and

– Orden IET/1045/2014 por la que se aprueban los parámetros retributivos de las instalaciones tipo aplicables a determinadas instalaciones de producción de energía eléctrica a partir de fuentes de energía renovables, cogeneración y residuos (Order IET/1045/2014 approving the standard plant remuneration rates applicable to certain power plants using renewable energy sources, cogeneration and waste) of 16 June 2014 (BOE No 150 of 20 June 2014, p. 46430).

5 The current scheme is applicable to both new installations and installations that were already entitled to receive or which were already receiving support under the previous scheme (‘the existing installations’).

6 On 22 December 2014, the Spanish authorities notified the current scheme to the Commission under Article 108(3) TFEU.

7 Following a preliminary examination, the Commission adopted the decision at issue.

8 In that decision, the Commission found, inter alia, that the current scheme constituted State aid within the meaning of Article 107(1) TFEU on the grounds that the support under that scheme was imputable to the State, it was financed from State resources, it granted a selective advantage to its recipients and it was likely to distort competition and affect trade between Member States.

9 In addition, the Commission noted that the current scheme was applicable from 11 June 2014 and the Spanish authorities had notified the aid scheme after they had started implementing it and before the adoption of a Commission decision. The Commission concluded therefrom that the Kingdom of Spain had breached the standstill obligation provided for in Article 108(3) TFEU and that the aid granted until the adoption of the decision at issue was illegal.

10 As regards the compatibility of the current scheme with the internal market, the Commission indicated that it would assess that matter on the basis of Article 107(3)(c) TFEU, according to which aid to facilitate the development of certain economic activities or of certain economic areas, where it does not adversely affect trading conditions to an extent contrary to the common interest, may be considered compatible with the internal market. In that regard, first, the Commission found that aid had been awarded to new installations only after 1 July 2014. Second, it found that the award act of all aid granted to the existing installations during their entire lifetime was constituted by the official registration on 9 July 2014 of the existing recipients in the current scheme which superseded and fully replaced the previous scheme, the awards of which were absorbed. It concluded therefrom that the compatibility of the aid in question with the internal market was to be assessed in the light of the Guidelines on State aid for environmental protection and energy 2014-2020 (OJ 2014 C 200, p. 1), paragraph 248 of which states that unlawful environmental or energy aid will be assessed in accordance with the rules in force on the date on which the aid was granted.

11 The Commission explained that it had assessed the compensation received, under the current scheme, from the installations concerned for their whole lifetime, including the payments received by the existing installations under the previous scheme. On the basis of that assessment, the Commission decided not to raise objections to the aid in question on the ground that it was compatible with the internal market pursuant to Article 107(3)(c) TFEU.

 The procedure before the General Court and the order under appeal

12 By application lodged at the General Court Registry on 14 March 2018, the appellants brought an action for annulment of the decision at issue.

13 On 2 October 2018, by way of measures of organisation of the procedure under Article 89(3) of its Rules of Procedure, the General Court asked the parties to submit their observations on the appellants’ interest in bringing proceedings against the decision at issue. The parties complied with that request within the prescribed period.

14 By the order under appeal, the General Court, in accordance with Articles 126 and 129 of its Rules of Procedure, dismissed the action in part due to its manifest lack of jurisdiction to hear and rule on it and in part as inadmissible.

15 In paragraph 99 of the order under appeal, the General Court dismissed as inadmissible, for lack of an interest in bringing proceedings, the appellants’ second head of claim, seeking annulment of the decision at issue, and, consequently, the first head of claim, by which the appellants had requested the General Court to declare the action admissible.

16 In reaching that dismissal, the General Court, in paragraphs 30 to 98 of the order under appeal, examined the appellants’ interest in having the decision at issue annulled.

17 To that end, while noting that the appellants were beneficiaries under the previous scheme and, at least some of them were beneficiaries under the current scheme, so that the decision at issue declaring the aid compatible with the internal market did not adversely affect them, the General Court verified, as required by the case-law, whether the assessment made by the Commission in that decision produced binding legal effects such as to affect the appellants’ interests.

18 The General Court stated, in paragraph 47 of the order under appeal, that it was apparent from the decision at issue that, in its assessment of the compatibility of the current scheme with the internal market, the Commission had taken into consideration the payments already received by the appellants under the previous scheme, on the ground that they constituted income previously received by the existing installations. In that regard, the General Court noted that the Commission had stated, in paragraph 4 of the decision at issue, that payments made under the previous scheme were covered by that decision in order to assess proportionality,  that is to say the absence of overcompensation. In addition, the General Court pointed out that it was apparent from the part of the decision at issue which concerns the assessment of the proportionality of the aid granted to the existing installations, and in particular from paragraph 120 of that decision, that the Commission had regarded the payments received under the previous scheme as ‘past sales income’.

19 In paragraph 85 of the order under appeal, the General Court noted that, in their reply to the written question that it had addressed to them, the appellants put forward arguments which appeared to concern the merits of their action and which were related to the compatibility of the current scheme with the internal market. The General Court stated, in that regard, that the appellants noted, inter alia, that the decision at issue was incompatible with the general principles of EU law in so far as the Commission had endorsed a retroactive application of the current scheme.

20 In paragraph 88 of the order under appeal, the General Court stated that it was solely because of the lack of a separate assessment of the previous scheme as a whole that the appellants had referred, without articulating a plea in that regard, to the Commission’s infringement of the principles of legal certainty and of the protection of legitimate expectations. It further stated that, by contrast, in paragraphs 5, 19, 23 and 25 of the application, the appellants had referred, again without formulating any plea in law, to an infringement of the principle of the protection of legitimate expectations by the Spanish Government related to the introduction of the current scheme.

21 In paragraph 90 of the order under appeal, the General Court noted that, according to Article 84(1) of its Rules of Procedure, 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 have come to light in the course of the procedure, which was not, according to the General Court, the case here.

22 In paragraph 91 of the order under appeal, the General Court held, in that regard, that although, in answer to the question which it had asked, the appellants had been free to provide any evidence in order to prove their interest in bringing proceedings, they could not, to that end, change the subject matter of the dispute and claim, for the first time in replying to that question, that the current scheme was incompatible with the internal market and infringed the principle of non-retroactivity.

23 The General Court concluded, in paragraph 92 of the order under appeal, that the appellants’ arguments, alleging that the current scheme was incompatible with the internal market and infringed the principle of legal certainty on the ground that the decision at issue endorsed retroactive application of the current scheme, were not capable of proving their interest in bringing proceedings.

24 In paragraph 93 of the order under appeal, the General Court recalled, in any event, that it did not follow from the decision at issue and had moreover not been claimed that the declaration of compatibility with the internal market in the decision at issue was, in relation to the points challenged by the appellants before it, conditional or subject to compliance with commitments undertaken by the Kingdom of Spain which became binding as a result of that decision.

25 In paragraph 94 of the order under appeal, in response to the argument put forward by the appellants in their reply to the written question addressed to them by the General Court, and based, in essence, on the fact that the decision at issue deprived them of the prescription period for the payments received under the previous scheme, the General Court pointed out that that decision did not affect the prescription rules applicable to those payments. Furthermore, in any event, it noted that the appellants did not claim that they might  be required to reimburse payments previously received under the previous scheme.

 Forms of order sought by the appellants before the Court of Justice

26 The appellants claim that the Court should:

– in the event that it upholds their first and second grounds of appeal, set aside the order under appeal and refer the case back to the General Court for the proceedings to be resumed, and

– in the alternative, in the event that the Court does not uphold their first and second grounds of appeal, set aside the order under appeal on the basis of their third ground of appeal, declare of its own motion, on that basis, that the subject matter of the decision at issue no longer exists on account of the inapplicability of the current scheme and order the Commission to pay the costs.

 The appeal

27 Pursuant to Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

28 It is appropriate to apply that provision in the context of the present appeal.

29 In support of their appeal, the appellants rely on three grounds of appeal, the first alleging a manifest error of assessment of the evidence by the General Court since it substituted its reasoning for that of the Commission in the decision at issue, the second alleging distortion by the General Court of one of their arguments and, the third, subdivided into six parts, alleging an error of law in that the General Court (i) did not take into account the existence of an implied plea based on infringement of the principle of legal certainty, (ii) infringed the principle of audi alteram partem and the rights of the defence by not allowing them to reply to the Commission’s defence, (iii) did not raise of its own motion a plea of public policy, (iv) did not raise of its own motion a plea relating to the admissibility of the action, (v) did not raise of its own motion a plea relating to procedure, and (vi) considered that the action was manifestly inadmissible.

30 By document lodged at the Court Registry on 8 April 2020, the appellants submitted an application for authorisation, first, to consider the content of Real Decreto-ley 17/2019 por el que se adoptan medidas urgentes para la necesaria adaptación de parámetros retributivos que afectan al sistema eléctrico y por el que se da respuesta al proceso de cese de actividad de centrales térmicas de generación (Royal Decree-Law 17/2019 adopting urgent measures for the necessary adaptation of the remuneration parameters affecting the electricity system and responding to the process of cessation of activity of  thermoelectric plants) of 22 November 2019 (BOE No 282 of 23 November 2019, p. 16862), and Orden TED/171/2020 por la que se actualizan los parámetros retributivos de las instalaciones tipo aplicables a determinadas instalaciones de producción de energía eléctrica a partir de fuentes de energía renovables, cogeneración y residuos, a efectos de su aplicación al periodo regulatorio que tiene su inicio el 1 de enero de 2020 (Order TED/171/2020 updating the remuneration parameters of  standard installations  applicable to certain installations for electricity generation from renewable energy sources, cogeneration and waste, for the purpose of their application to the regulatory period beginning on 1 January 2020) of 24 February 2020 (BOE No 51 of 28 February 2020, p. 18517), as new facts, and, second, to put forward new pleas in law and modify some of their pleas in law, on the basis of those facts. By that same document, the appellants request, third, that the Court declare unlawful and inapplicable, or annul, both the condition contained in Section 3 of Final Provision 3a of Law 24/2013, introduced by Royal Decree-Law 17/2019, and Order TED/171/2020, in so far as they concern them.

 The applications made by the document of 8 April 2020

 Arguments of the appellants

31 In the first place, the appellants base their application seeking authorisation  to introduce new pleas in law and modify some of their pleas in law on Royal Decree-Law 17/2019 and Order TED/171/2020 and take the view that that royal decree-law and that order constitute matters of fact and of law which have come to light in the course of the procedure, within the meaning of Article 127 of the Rules of Procedure of the Court of Justice and Article 84 of the Rules of Procedure of the General Court, thereby justifying the introduction of the new pleas in law and the modification of some of their pleas in law in the course of the proceedings.

32 In the event that their application is not granted, the appellants seek, in the alternative, authorisation under Article 84 of the Rules of Procedure of the General Court to introduce those new pleas in law, based on new facts, in Case T‑186/18.

33 The appellants claim that the fact that, by Royal Decree-Law 17/2019 and Order TED/171/2020, the Kingdom of Spain recognised both infringement of the principle of the protection of legitimate expectations to their detriment and to that of other applicants in international arbitration proceedings and the need to restore legal certainty constitutes a new fact such as to modify the facts that the General Court assessed in Case T‑186/18. According to the appellants, had the Kingdom of Spain recognised that the infringement of the principle of the protection of legitimate expectations to their detriment had occurred in the cases that they had brought before the Tribunal Supremo (Supreme Court, Spain), that circumstance would most likely have led that court to rule in their favour, with the result that the Commission would not have put an end to the examination of the current scheme and the scope of that examination would have only included the previous scheme. Consequently, the appellants would have changed their arguments in Case T‑186/18.

34 On the basis of those new facts, the appellants raise, in the second place, a new plea alleging misuse of powers by the Commission, in collusion with the Kingdom of Spain, aimed at neutralising the principle of the protection of legitimate expectations in international arbitration proceedings. Furthermore, the appellants expressly invoke two other pleas in law, which were only implied in their application initiating proceedings before the General Court, alleging infringement of the principle of the protection of legitimate expectations by the Kingdom of Spain by reason of the introduction of the current scheme and incompatibility of the decision at issue with the general principles of EU law, in that the Commission endorsed the retroactive application of the current scheme. In addition, the appellants raise arguments relating, first, to procedural balance and, second, to the fact that those new facts are capable of altering their legal and economic situation.

35 In the third place, the appellants request that the Court declare unlawful and inapplicable, or annul, both the condition contained in Section 3 of Final Provision 3a of Law 24/2013, introduced by Royal Decree-Law 17/2019, and Order TED/171/2020, in so far as they concern them, on account of their conflict with the Rules of Procedure of the Court of Justice, which does not provide for the compulsory removal of a party to legal proceedings.

 Findings of the Court

36 In the first place, as regards the appellants’ application for authorisation to introduce new pleas in law, based on facts which became apparent during the proceedings, the appellants refer in support of their application to the fact that, after the notification of the order under appeal, the Kingdom of Spain allegedly recognised, by Royal Decree-Law 17/2019 and Order TED/171/2020, the infringement of the principle of the protection of legitimate expectations and legal certainty to their detriment. They claim that, had that recognition taken place earlier in the proceedings, the content of the decision at issue would have been different.

37 It should be recalled, in that regard, that it is apparent from Article 58 of the Statute of the Court of Justice of the European Union that the grounds of appeal must be based on arguments made in the proceedings before the General Court. Moreover, according to Article 170(1) of the Rules of Procedure of the Court of Justice, the subject matter of the proceedings before the General Court may not be changed in the appeal. Thus, the jurisdiction of the Court of Justice in an appeal is confined to a review of the findings of law on the pleas and arguments debated before the General Court (see, to that effect, judgment of 14 March 2013, Viega v Commission, C‑276/11 P, not published, EU:C:2013:163, paragraph 58).

38 It follows therefrom that it is not for the Court of Justice to review the manner in which, in an action for annulment under Article 263 TFEU, the General Court exercised its judicial review on the basis of matters of fact which came to light after the judgment was delivered or the order of the General Court was notified and which were not before the General Court.

39 That assessment is not called into question by the fact that the appellants relied in that regard on Article 127 of the Rules of Procedure of the Court of Justice, applicable to appeal proceedings pursuant to Article 190(1) of those Rules. Article 127 of those Rules allows, exceptionally, the introduction of new pleas in law but not new factual evidence (see, to that effect, order of 28 November 2018, Le Pen v Parliament, C‑303/18 P, not published, EU:C:2018:962, paragraphs 78 and 79 and the case-law cited).

40 The appellants are therefore not able to rely in the present appeal on new facts arising from Royal Decree-Law 17/2019 and Order TED/171/2020.

41 In the second place, the new pleas in law and arguments, as set out in their application, are directed against the decision at issue and not against the order under appeal. Such pleas in law and arguments are, as such, inadmissible in an appeal, which is, pursuant to Article 256 TFEU and Article 58 of the Statute of the Court of Justice of the European Union, limited to alleged errors of law by the General Court.

42 Furthermore, the Court cannot hear and determine the appellants’ application, made in the alternative, seeking authorisation under Article 84 of the Rules of Procedure of the General Court to introduce those new pleas in law and arguments, based on new facts, in Case T‑186/18, since such an application clearly does not fall within the jurisdiction of the Court of Justice.

43 In the third place, it must be held that the Court also clearly lacks jurisdiction to declare the invalidity of or annul the condition contained in Section 3 of Final Provision 3a of Law 24/2013, introduced by Royal Decree-Law 17/2019, and Order TED/171/2020, in so far as they concern the appellants. Indeed, pursuant to Article 257 TFEU and Article 56 of the Statute of the Court of Justice of the European Union, an appeal to the Court of Justice may be brought only against decisions of the General Court and not against an act of a Member State.

44 In those circumstances, the appellants’ applications made by the document of 8 April 2020 must be dismissed.

 The first ground of appeal

 Arguments of the appellants

45 The first ground of appeal, directed in essence against paragraph 47 of the order under appeal, alleges a manifest error of assessment of the evidence by the General Court, since it substituted its reasoning for that of the Commission in the decision at issue.

46 The appellants claim, in that regard, that the General Court made such an error in that it confirmed that the Commission took account of the payments received under the previous scheme in assessing the compatibility of the current scheme with the internal market, on the ground that they were income previously received by the existing installations. They claim that the payments at issue had been awarded and paid under the previous scheme, so that those payments cannot be regarded as having been awarded again under the current scheme, unless the award act has been annulled. Even assuming that the General Court’s assessment of the evidence in paragraph 47 of the order under appeal must be accepted, the appellants consider that they should have had the opportunity to express before the General Court their view on the double grant of the same aid.

 Findings of the Court

47 According to settled case-law of the Court of Justice, under Article 256 TFEU and Article 58 of the Statute of the Court of Justice of the European Union, an appeal is limited to points of law. Therefore, the General Court has exclusive jurisdiction, first, to establish the facts and, second, to assess those facts. It is only where the material inaccuracy of the General Court’s findings is evident from the procedural documents submitted to it or where the evidence used to support those facts has been distorted that those findings of fact and the appraisal of that evidence constitute points of law subject to review by the Court of Justice on appeal (judgment of 1 October 2014, Council v Alumina, C‑393/13 P, EU:C:2014:2245, paragraph 16).

48 It should be noted in that regard that a distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgment of 20 September 2018, Spain v Commission, C‑114/17 P, EU:C:2018:753, paragraph 75 and the case-law cited).

49 In the present case, it is noteworthy that paragraph 47 of the order under appeal relates to the General Court’s examination of the interest in bringing proceedings of applicants who, because they were beneficiaries of the previous scheme and at least some of them were beneficiaries of the current scheme, were not adversely affected by the decision at issue, which had declared the current scheme compatible with the internal market.

50 In paragraph 47 of that order, the General Court pointed out that it was clear from the decision at issue that the Commission had taken account of the payments received under the previous scheme in assessing the compatibility of the current scheme with the internal market, since that institution had indicated that those payments had been covered by that decision in order to assess the proportionality of the aid granted to the existing installations. The General Court also noted that it was clear from the part of the decision at issue relating to the assessment of the proportionality of the aid granted to the existing installations that the Commission had treated those payments as ‘past sales income’. In so doing, the General Court made factual findings which were themselves based on the Commission’s findings and assessments made in the decision at issue, which cannot, as such, save where they are distorted, be subject to review by the Court of Justice on appeal. However, the appellants do not demonstrate that it is clear from the documents in the file that the General Court distorted the facts.

51 Even assuming that the first ground of appeal must be understood as meaning that the appellants seek to complain that the General Court took account, in its assessment of their interest in bringing proceedings, of those findings and assessments in the decision at issue, although they contested the Commission’s assessment that the payments under the previous scheme had been absorbed by the current scheme, and that it did not examine, in the order under appeal, the merits of their arguments in that regard, that ground cannot be upheld.

52 It should be noted that it is apparent from paragraphs 48 and 49 of the order under appeal that the reason why the General Court, in examining the appellants’ interest in bringing proceedings, relied on the Commission’s factual assessments in the decision at issue, despite the fact that the appellants contested that institution’s assessment that the payments under the previous scheme had been absorbed by the current scheme, was because it was clear from the decision at issue that it is the Spanish legislation which had provided that the compensation received by the existing installations would be calculated by taking account of the income already received by those installations under the previous scheme, a fact which the appellants themselves had admitted in their application initiating proceedings.

53 It is also apparent from paragraphs 51 and 52 of the order under appeal that the General Court considered that any annulment of the decision at issue, inter alia, in so far as it allegedly erred in finding that the payments under the previous scheme had been absorbed by the current scheme, would not have the effect of calling into question the finding that the current scheme is compatible with the internal market or compel the Commission to carry out a separate assessment of the previous scheme and, consequently, would not have the effect of calling into question the decision of the Kingdom of Spain to adopt the current scheme or compel that Member State to repeal that current scheme or implement a scheme more favourable to the appellants.

54 Thus, by relying on the assumption that the decision at issue was vitiated by an error of law, in particular in that it found that the payments under the previous scheme had been absorbed by the current scheme, and, therefore, without having had to consider the merits of the appellants’ arguments directed in that regard against the decision at issue, the General Court was able to hold, in paragraph 53 of the order under appeal, that it had not been shown that the annulment of that decision, on that point, would be favourable to the appellants.

55 In those circumstances, the appellants’ argument that, in paragraph 47 of the order under appeal, the General Court confirmed that the Commission took account of the payments received under the previous scheme in the assessment of the compatibility of the current scheme with the internal market which that institution had carried out and, in so doing, substituted its reasoning for that of the Commission in the decision at issue, cannot succeed. Similarly, the appellants cannot maintain that they should have had the opportunity to express before the General Court their view on the double grant of that aid.

56 It follows that the first ground of appeal must be rejected as inadmissible and, in any event, as manifestly unfounded.

 The second ground of appeal

 Arguments of the appellants

57 By their second ground of appeal, alleging distortion by the General Court of one of their arguments, the appellants claim that, in paragraphs 85 and 88 of the order under appeal, the General Court misinterpreted their argument relating to the retroactivity of the current scheme underlying the decision at issue, in that it understood that argument as relating to the incompatibility of that decision with the general principles of EU law. The appellants claim, in that regard, that, by that argument, they had not sought to show an error of law such as to lead to the annulment of the decision at issue, but rather to argue that that decision had become devoid of purpose, which would necessarily lead to the annulment of that decision. According to the appellants, that error by the General Court led to an infringement of their rights of the defence and, consequently, to an infringement of their procedural rights.

 Findings of the Court

58 By their second ground of appeal, the appellants complain, in essence, that the General Court incorrectly represented, in paragraph 85 of the order under appeal, their argument concerning the retroactivity of the current scheme underlying the decision at issue, by which they did not argue that that retroactivity had the effect of vitiating that decision by an error of such a kind as to lead to its annulment, but rather that that decision had become devoid of purpose, which inevitably entailed its annulment.

59 It should be noted at the outset that, even if it is assumed that the appellants’ line of argument in support of their second ground of appeal is well founded and therefore leads to the finding that the General Court distorted their argument relating to the retroactivity of the current scheme underlying the decision at issue, that argument could, at most, demonstrate the appellants’ interest in the annulment of the current scheme, and not their interest in the annulment of the decision at issue. As the General Court noted in paragraph 58 of the order under appeal, without the appellants raising any criticism of that point in their appeal, the appellants have not demonstrated the existence of a link between the annulment of the decision at issue and a possible reintroduction of the previous scheme.

60 It follows that the second ground of appeal is ineffective and must be rejected.

 The third ground of appeal

 Arguments of the appellants

61 The third ground of appeal is divided into six parts.

62 By the first part of the third ground of appeal, alleging an error by the General Court in that it did not take into account the existence of an  implied plea in law based on  infringement of the principle of legal certainty, the appellants submit that the General Court was wrong to apply, in paragraphs 90 and 91 of the order under appeal, Article 84(1) of its Rules of Procedure, which prohibits the introduction of new pleas in the course of the proceedings. They note that the argument at issue was directed against the current scheme and not against the decision at issue. The main argument in the application initiating the proceedings was precisely based on that argument concerning the retroactivity of that scheme; accordingly, the General Court should have recognised the existence of an implied plea alleging an infringement  of the principle of legal certainty in relation to the current scheme.

63 By the second part of the third ground of appeal, put forward in the event that the first part of that ground is not upheld by the Court of Justice, the appellants complain that the General Court infringed the principle of audi alteram partem and the rights of the defence by not allowing them to reply to the Commission’s defence.  The appellants note that the General Court rejected as inadmissible their argument concerning the retroactivity of the current scheme, raised in their reply to a question from the General Court asking them to prove their interest in bringing proceedings, on the ground that that argument ran counter to the prohibition on changing the subject matter of the dispute before the General Court, even though that argument was aimed at refuting the Commission’s arguments raised in its defence, to which they were not allowed to reply.

64 By the third part of the third ground of appeal, put forward in the event that the first and second parts of that ground are not upheld by the Court of Justice, the appellants complain that the General Court failed to raise of its own motion a plea of public policy. The appellants claim that the incompatibility of the current scheme with the general principles of EU law and the prohibition of retroactivity affects the substantive legality of that scheme which underpins the decision at issue and constitutes a plea of public policy. They state, in that context, that the national courts should have asked the Court of Justice about the retroactivity of the current scheme in the context of a reference for a preliminary ruling and that the national case-law contains dissenting opinions on that subject.

65 By the fourth part of the third ground of appeal, the appellants complain that the General Court did not raise of its own motion the plea alleging incompatibility of the current scheme with the general principles of EU law and the principle of non-retroactivity, as a plea relating to the admissibility of the action. They note, however, that annulment of the decision at issue on that ground would, in itself, provide them with a significant legal and economic advantage, since it would affect the repeal of the previous scheme, and consequently they would be entitled to continue to receive their payments  under the previous scheme, in accordance with their legitimate expectations.

66 By the fifth part of the third ground of appeal, directed against paragraph 94 of the order under appeal, the appellants complain that the General Court did not raise of its own motion a plea relating to procedure. They claim that, if the premiss on which the General Court relied that the previous scheme was absorbed by the current scheme, were to be accepted, the result would be that payments received under the previous scheme were refunded and received again under the current scheme. In that case, the finding in paragraph 94 of the order under appeal that the decision at issue has no effect on the prescription rules applicable to the payments received under the previous scheme because the appellants were not called upon to reimburse those payments, infringes the prescription rules in the field of State aid. The failure by the General Court to examine the plea alleging infringement of the prescription rules in the field of State aid constitutes, according to the appellants, a procedural irregularity adversely affecting their interests.

67 By the sixth part of the third ground of appeal, alleging that the General Court erred in law in finding that the action brought before it was manifestly inadmissible, the appellants submit that a more detailed examination of the facts and arguments set out in the first and second grounds of appeal, in the light of the arguments raised in the third ground, would have enabled the General Court to find that the inadmissibility of the action was not manifest, so that the General Court could have given judgment  in accordance with procedural guarantees.

 Findings of the Court

68 As regards the first part of the third ground of appeal, alleging an error by the General Court in that it did not take into account the existence of an implied plea based on infringement of the principle of legal certainty, it should be recalled that, while certain pleas may, and indeed must, be raised by the courts of their own motion, such as the question whether a statement of reasons for the decision at issue is lacking or is inadequate, which falls within the scope of essential procedural requirements, a plea going to the substantive legality of that decision, which falls within the scope of infringement of the Treaties or of any rule of law relating to their application, within the meaning of Article 263 TFEU, can, by contrast, be examined by the Courts of the European Union only if it is raised by the applicant (judgment of 10 December 2013, Commission v Ireland and Others, C‑272/12 P, EU:C:2013:812, paragraph 28 and the case-law cited). A plea based on infringement of the principle of legal certainty is clearly a plea concerning the substantive legality of a decision on which the General Court can rule only if it is raised by the applicant.

69 However, the appellants do not claim to have raised such a plea in their application before the General Court, but admit themselves that that plea was only implied in that application.

70 Accordingly, the first part of the third ground of appeal must be rejected as manifestly unfounded.

71 In any event, that part is ineffective for the same reasons as those set out in paragraph 59 above.

72 By the second part of the third ground of appeal, alleging infringement of the principle of audi alteram partem and the rights of the defence, the appellants essentially complain that the General Court rejected as inadmissible their argument concerning the retroactivity of the current scheme, raised in their reply to a question from the General Court asking them to prove their interest in bringing proceedings, even though that argument was aimed at refuting the Commission’s arguments raised in its defence, to which they were not allowed to reply.

73 In that regard, it should be recalled, first, that the General Court gave its decision by way of a reasoned order after having asked the appellants to prove their interest in bringing proceedings. Second, in the order under appeal, the General Court dismissed the action in part on the ground of its manifest lack of jurisdiction to hear and determine it and in part as inadmissible, without ruling on the substance. It follows that the General Court, first, heard the parties on the existence of the appellants’ interest in bringing proceedings before dismissing their first and second heads of claim as inadmissible and, second, did not examine the substance of the arguments raised by the Commission in its defence, relating to the second plea, to which the appellants had not been allowed to reply. In those circumstances, the General Court was able to hold — without infringing the principle of audi alteram partem — in paragraph 91 of the order under appeal, that, in order to prove their interest in bringing proceedings, the appellants could not change the subject matter of the dispute and claim, for the first time when replying to the question put by the General Court, that the current scheme infringed, inter alia, the principle of non-retroactivity.

74 It follows that the second part of the third ground of appeal must be rejected as manifestly unfounded.

75 As regards the third part of the third ground of appeal, alleging an error of law by the General Court by failing to raise of its own motion a plea of public policy, it follows from the case-law cited in paragraph 68 above that a plea such as that alleging infringement of the principle of non-retroactivity constitutes a plea concerning the substantive legality of a decision on which the General Court may rule only if it is raised by the applicant.

76 The appellants do not claim to have raised such a plea in their application, but maintain that it was for the General Court to raise that plea of its own motion.

77 In those circumstances, the third part of the third ground of appeal must be rejected as manifestly unfounded.

78 In any event, that part is ineffective, in so far as the arguments raised by the appellants relate to the substance, whereas the General Court did not rule on the substance in the order under appeal.

79 By the fourth part of the third ground of appeal, the appellants complain that the General Court failed to raise of its own motion the plea alleging infringement of the principle of non-retroactivity by the current scheme as a factor capable of proving their interest in bringing proceedings.

80 In that regard, it must be noted that, as the General Court correctly pointed out in paragraph 38 of the order under appeal, it is the applicant who must prove that he has an interest in making his application, which is an essential and fundamental prerequisite for any legal proceedings (see, inter alia, judgment of 20 December 2017, Binca Seafoods v Commission, C‑268/16 P, EU:C:2017:1001, paragraph 45 and the case-law cited). It follows that the General Court was under no obligation itself to seek the evidence capable of proving the appellants’ interest in bringing proceedings, in particular by raising of its own motion a plea that, according to the appellants, would have been capable of demonstrating the admissibility of their action.

81 The fourth part of the third ground of appeal must therefore be rejected as manifestly unfounded.

82 In any event, that part is ineffective for the same reasons as those set out in paragraph 59 above.

83 By the fifth part of the third ground of appeal, directed against paragraph 94 of the order under appeal, which is based on the premiss that the previous scheme was absorbed by the current scheme, the appellants contest the General Court’s assessment that they were not required to reimburse the payments received under the previous scheme and submit that, by failing to raise of its own motion the plea alleging infringement of the  prescription rules in the field of State aid, the General Court committed a breach of procedure adversely affecting their interests.

84 In that regard, it should be noted that, in so far as, by their arguments, the appellants seek to call into question the factual finding, set out in paragraph 94 of the order under appeal, that they did not claim that they were exposed to the risk of having to reimburse payments already received under the previous scheme, without demonstrating or even claiming that a distortion of the facts occurred in the present case, those arguments must be rejected as manifestly inadmissible, having regard to the case-law cited in paragraph 47 above.

85 In so far as, by their arguments, the appellants complain that the General Court failed to raise of its own motion a plea alleging infringement of the prescription rules in the field of State aid, it follows from the case-law cited in paragraph 68 above that such a plea constitutes a plea concerning the substantive legality of a decision, on which the General Court may rule only if it is raised by the applicant.

86 Therefore, contrary to the appellants’ assertions, it was not in any way incumbent on the General Court to raise such a plea of its own motion.

87 In those circumstances, the fifth part of the third ground of appeal must be rejected as in part manifestly inadmissible and in part manifestly unfounded.

88 By the sixth part of the third ground of appeal, alleging that the General Court erred in law in finding that the action was manifestly inadmissible, the appellants submit that a more detailed examination of the facts and arguments set out in support of their first and second grounds of appeal, in the light of the matters raised in the context of their third ground of appeal, would have enabled the General Court to find that the inadmissibility of the action was not manifest, which would have allowed a second exchange of pleadings and/or the holding of a hearing.

89 In that regard, it must be noted that, in view of the foregoing, since the first and second grounds of appeal and the first to fifth parts of the third ground of appeal must be rejected as manifestly inadmissible, manifestly unfounded or ineffective, the facts, arguments and evidence set out by the appellants in the context of those grounds of appeal and parts thereof are not such as to cast doubt on the manifest inadmissibility of their first and second heads of claim raised at first instance.

90 In any event, even supposing that the General Court was wrong, in the present case, to apply Article 126 of its Rules of Procedure, which governs actions manifestly bound to fail, the fact remains that Article 129 of those Rules allowed it, at any time, of its own motion, after hearing the main parties, to decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case. The lack of interest in bringing proceedings constitutes an absolute bar to proceedings (see, to that effect, order of 7 October 1987, d.M v Council and ESC, 108/86, EU:C:1987:426, paragraph 10). Consequently, the appellants could in no way be guaranteed a second exchange of pleadings or a hearing.

91 It follows that the sixth part of the third ground of appeal must be rejected as manifestly unfounded and, consequently, the third ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.

92 It follows from all of the foregoing considerations that the appeal must be dismissed in its entirety as being in part manifestly inadmissible and in part manifestly unfounded.

 Costs

93 Under Article 137 of the Rules of Procedure of the Court of Justice, applicable to appeal proceedings by virtue of Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings.

94 In this case, since the present order has been adopted before the appeal was served on the defendant and, therefore, before the latter could have incurred costs, the appellants must be ordered to bear their own costs.

On those grounds, the Court (Seventh Chamber) hereby orders:

1. The appeal is dismissed as being in part manifestly inadmissible and in part manifestly unfounded.

2. Abaco Energy SA and the 1 322 other appellants whose names appear in the annex to the present order shall bear their own costs.