C-670/24

OPINION OF ADVOCATE GENERAL BIONDI delivered on 25 June 2026 (1) Case C‑670/24 P Mead Johnson Nutrition (Asia Pacific) Pte Ltd, MJN Global Holdings BV, Mead Johnson Nutrition Co. v European Commission ( Appeal – State aid – United Kingdom – Gibraltar corporate income tax regime – 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 laid down in Article 108(2) TFEU – Aid measure implemented on the date of the decision – Action for annulment – Definition of ‘act open to challenge’ ) I.      Introduction 1.        In the present appeal, the Court is called upon primarily to rule on the consistency of a line of case-law developed by the General Court regarding the inadmissibility, under certain circumstances, of actions for annulment brought against European Commission’s decisions to initiate the formal investigation procedure laid down in Article 108(2) TFEU and Article 4(4) of 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. (2) 2.        Pursuant to that line of case-law, a distinction must be drawn as regards the admissibility of such actions, depending on whether the contested decision concerns national measures that are in the process of being implemented or that have already been implemented. While decisions to initiate the formal investigation procedure in respect of measures that are in the course of implementation produce independent legal effects – particularly in so far as they require the suspension of the measure – and are therefore challengeable under Article 263 TFEU, decisions concerning measures which have already been implemented do not produce such independent legal effects, since they are not immediate, certain and sufficiently binding on the Member State to which they are addressed, or on the beneficiary or beneficiaries of the measure under review. (3) The measure at issue in the present appeal comes under that second category. 3.        By their appeal, Mead Johnson Nutrition (Asia Pacific) Pte Ltd, MJN Global Holding BV and Mead Johnson Nutrition Co. (‘the appellants’) seek the annulment of the order of the General Court of 13 August 2024, Mead Johnson Nutrition (Asia Pacific) and Others v Commission (4) (‘the order under appeal’), by which the General Court, relying on the case-law cited above, dismissed their action for annulment of Commission Decision C(2022) 7665 final of 31 October 2022 on State aid SA.34914 (2013/C) – United Kingdom – Gibraltar Corporate Income Tax Regime (5) (‘the decision at issue’) as inadmissible. II.    Background to the dispute, order under appeal, forms of order sought and procedure before the Court 4.        The background to the dispute, as set out in the order under appeal, is described therein as follows. (6) 5.        The appellants are companies belonging to the international Mead Johnson Nutrition group (‘MJN group’). The decision at issue 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. That procedure resulted in Commission Decision (EU) 2019/700 of 19 December 2018 (7) (‘the 2018 final decision’). In that decision, the Commission found, inter alia, that the tax treatment granted by the Government of Gibraltar on the basis of advance tax rulings issued to five Gibraltar-based companies, including MJN Holdings (Gibraltar) Ltd (‘MJN GibCo’), constituted unlawful individual State aid incompatible with the internal market. 6.        In its judgment of 6 April 2022, Mead Johnson Nutrition (Asia Pacific) and Others v Commission,(8) the General Court annulled the 2018 final decision in part, in so far as it found that there was individual aid in favour of MJN GibCo. The General 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 2018 final decision. The General Court thus held that the Commission had adopted that 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 2018 final decision, the Commission adopted the decision at issue, by which it 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 measure in question’). 8.        The appellants brought an action before the General Court seeking annulment of the decision at issue. In support of their action, they put forward three pleas in law. By their first plea, they claimed that the Commission lacked competence to adopt the decision at issue under Article 92(3)(a) of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (‘the Withdrawal Agreement’). (10) By their second and third pleas, they claimed infringement of essential procedural requirements and breach of the principle of sound administration, respectively. 9.        The Government of Gibraltar was granted leave to intervene in the proceedings before the General Court in support of the appellants. 10.      The Commission contended, 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. 11.      In the order under appeal, the General Court, relying on the line of case-law recalled in point 2 of the present Opinion, dismissed the action as inadmissible. First, it found that, at the time when the decision at issue was adopted, the measure in question was no longer being implemented and that there could therefore no longer have been any breach of the obligation to suspend the implementation of that measure. Second, as regards the possibility that interim measures might be adopted, the General Court noted that the decision at issue did not include a provisional recovery order pursuant to Article 13(2) of Regulation 2015/1589, and that no evidence had been brought before it to suggest that there was a ‘situation of urgency’ or a ‘serious risk of substantial and irreparable damage to a competitor’ which might possibly lead the Commission to adopt such measures. It added that, while it could not be ruled out that a national court might order interim measures to safeguard, in particular, the interests of the parties concerned pending a final decision by the Commission, no argument or evidence had been put forward in the case at hand to support the view that the conditions applicable under the national law in question were fulfilled in order for a national court to adopt such measures. Third, the General Court considered that the mere risk that a national court might have to adopt interim measures would not confer on the decision at issue an effect which was immediate, certain and sufficiently binding. Fourth and finally, and in any event, the General Court noted that, in the case pending before it, no other legal effect arising from the decision to initiate the formal investigation procedure, including the risk that a national court might order the recovery of any aid, had been raised by the appellants; they had merely submitted that the action was admissible in the light of the grounds for annulment on which they relied, namely the Commission’s lack of competence to adopt the decision at issue. (11) 12.      Accordingly, the General Court concluded that the decision at issue could not be regarded as having sufficiently immediate and certain legally binding effects and could not be classified as a challengeable act. (12) 13.      In support of their appeal, the appellants submit that the General Court failed to assess their arguments relating to jurisdiction under Article 92(3)(a) of the Withdrawal Agreement. They claim that, properly interpreted, that provision gave no powers to the Commission to further investigate the appellants’ tax treatment under Article 108(2) TFEU. The decision at issue is therefore an act adopted ultra vires, which has legal effects vis-à-vis the appellants. By proceeding directly to an analysis of the rules applicable to judicial review of decisions taken within the scope of EU rules governing State aid administrative procedures, the General Court erred in law. The appellants also allege infringement of Article 47 of the Charter of Fundamental Rights of the European Union. 14.      In its response, the Government of Gibraltar argues that, contrary to the General Court’s ruling in the order under appeal, the decision at issue produced binding legal effects despite being a preparatory act within the State aid control system. According to the Government of Gibraltar, the General Court’s distinction between Commission decisions initiating the formal investigation procedure in respect of measures in the course of implementation as new aid, and measures that have already been implemented is not supported by the case-law of the Court of Justice. It refers, in particular, to the judgments of 11 March 2010, CELF and ministre de la Culture et de la Communication, (13) of 24 October 2013, Deutsche Post v Commission, (14) and of 21 November 2013, Deutsche Lufthansa. (15) 15.      That line of argument has been fully endorsed by the appellants in their reply. They emphasise, in particular, the risk that proceedings may be brought before the courts of Gibraltar seeking an order for the immediate recovery of the disputed exemption. 16.      The appellants and the Government of Gibraltar submit that the Court should i) set aside the order under appeal; ii) rule that the application at first instance is admissible; iii) give final judgment in the present case and annul the decision at issue; iv) order the Commission to pay the costs in the proceedings before the Court of Justice and the General Court; v) in the alternative, refer the matter back to the General Court for consideration of the merits. The Commission contends that the Court should dismiss the appeal and order the appellants to pay the costs. 17.      The appellants, the Government of Gibraltar and the Commission submitted oral arguments at the hearing of 2 March 2026. III. Analysis 18.      As requested by the Court, this Opinion focuses on whether, under EU State aid rules and the Court’s case-law, a decision to initiate the formal investigation procedure under Article 108(2) TFEU regarding a measure that is no longer being implemented produces independent binding legal effects and should therefore be regarded as a ‘challengeable act’ within the meaning of Article 263 TFEU. 19.      It is, however, necessary as a preliminary matter to engage with the Commission’s claim that the arguments raised by the Government of Gibraltar in its response and endorsed by the appellant in their reply, referred to in point 14 of this Opinion, are inadmissible. (16) 20.      Such a claim is readily dismissed. 21.      In accordance with the settled case-law of the Court of Justice, any fact which relates to the admissibility of the action for annulment brought before the General Court is likely to constitute a question of public policy, which the Court of Justice, hearing an appeal, is required to raise of its own motion. (17) 22.      Having clarified that, I would recall that it is settled case-law that the action for annulment established by Article 263 TFEU is available in respect of any measure adopted by the institutions, bodies, offices or agencies of the European Union, which is intended to produce binding legal effects, irrespective of its nature or form. In determining whether an act is capable of producing such effects and may accordingly form the subject matter of an action for annulment under Article 263 TFEU, regard must be had to its substance and its effects must be assessed by reference to objective criteria, foremost among them its content, viewed in the light of the context in which it was adopted and the powers of the institution, body, office or agency responsible for its adoption. (18) 23.      In the case of acts drawn up in several procedural stages, the Court clarified that an act is, in principle, open to challenge only if it definitively determines the position of the competent EU institution, body, office or agency, to the exclusion of intermediate measures whose aim is to prepare that final measure and which produce no independent legal effects vis-à-vis third parties. Acts expressing a provisional opinion of that EU institution, body, office or agency in particular constitute such intermediate measures. (19) This is so because an intermediate measure is not capable of forming, in particular, the subject matter of an action for annulment if it is established that the illegality attaching to that measure can be relied on in support of an action against the final decision for which it represents a preparatory step. In such circumstances, the action brought against the decision terminating the procedure will provide sufficient judicial protection. (20) 24.      In the present appeal, it is therefore necessary to examine whether the General Court correctly found that the decision at issue, which is an intermediate measure, was not intended to have binding legal effects, and was therefore not open to challenge. 25.      To that end, I will first examine whether the General Court’s distinction between decisions to initiate the formal investigation procedure regarding measures in the process of implementation and those regarding measures already implemented – made to determine whether the decision at issue was open to challenge under Article 263 TFEU – is sound. A.      On whether decisions to initiate the procedure laid down in Article 108(2) TFEU can be challenged 1.      The system of prior control of new State aid established by the Treaty 26.      Under Article 108(3) TFEU, Member States are required to notify the Commission of any plans to grant or alter aid. If, following its preliminary examination, the Commission has doubts as to the compatibility of the aid with the internal market, it is to initiate the procedure under Article 108(2) TFEU. According to the last sentence of Article 108(3) TFEU, pending a final decision, the Member State concerned is not to implement the proposed measure (the ‘standstill clause’). 27.      New aid is therefore subject to a system of prior control designed to ensure that only aid compatible with the internal market is implemented. (21) The notification requirement and the consequent standstill obligation constitute fundamental features of that system. Member States must notify any measure constituting new aid or altering existing aid and refrain from implementing it until the Commission has adopted a final decision. (22) 28.      To indulge in a bit of history, the Court has held, as early as the judgment in Costa, (23) that the prohibition on implementation referred to in the last sentence of what was then Article 93(3) of the EEC Treaty has a direct effect and confers rights on individuals, which national courts are bound to protect. That prohibition applies to all unnotified aid and, where aid has been notified, continues to operate until the Commission adopts a final decision. (24) 29.      The enforcement of the rules on State aid thus rests upon sincere cooperation between the Commission, the Courts of the European Union and national courts, each exercising the functions assigned to it under the FEU Treaty. (25) 30.      In particular, national courts are responsible for safeguarding the rights of individuals where the standstill obligation may have been infringed. (26) To that end, they may be required to interpret and apply the concept of ‘State aid’ in Article 107(1) TFEU in order to determine whether a measure should have been notified. (27) Where they conclude that aid has been granted in breach of Article 108(3) TFEU, they must draw all the necessary legal consequences under national law. (28) They may, in particular, order interim measures, require recovery of unlawfully granted aid, (29) and entertain claims for damages brought by competitors harmed by the aid. (30) The purpose of these powers is to remedy the unlawfulness arising from the breach of the standstill obligation and to ensure that the aid does not remain at the free disposal of the beneficiary. (31) 2.      The effects of the initiation of the formal investigation procedure 31.      I turn now to consider the effects of the initiation of the procedure under Article 108(2) TFEU on the exercise of the powers vested in national courts within the framework of the EU State aid control system outlined above. 32.      In that regard, it should be noted that the last sentence of Article 108(3) TFEU makes no reference to the role, functions and specific powers of the Commission. (32) The special role that national courts play in the context of the State aid control system derives, in fact, from the direct effect of that provision. (33) 33.      As a consequence, the decision by the Commission to open the formal investigation procedure cannot release the national courts from their duty to safeguard the rights of individuals faced with a possible breach of the standstill obligation. (34) 34.      For the same reasons, in the discharge of their functions, national courts enjoy a ‘degree of independence’ from intervention by the Commission. (35) Accordingly, a Commission decision that finds aid to be compatible with the internal market does not have the effect of regularising implementing measures taken in disregard of the standstill obligation, since ‘otherwise the direct effect of [the last sentence of Article 108(3) TFEU] would be impaired and the interests of individuals, which are to be protected by national courts, would be disregarded’. (36) Similarly, the Court has stated that, although they are not obliged to do so under EU law, national courts may, within the framework of their domestic law, and if appropriate, order the recovery of an unlawful aid declared compatible with the internal market by the Commission (37) or uphold claims for compensation for damage caused by reason of the unlawful nature of the aid. (38) 35.      That having been clarified, the scope of the duty of national courts to safeguard the rights of individuals faced with a possible breach of Article 108(3) TFEU ‘may vary’ depending on whether the Commission has initiated the formal investigation procedure. As the Court stated in the judgment in Deutsche Lufthansa – to which the appellants and the Government of Gibraltar refer extensively – while the assessments carried out in the decision to initiate that procedure are indeed preliminary in nature, ‘that does not mean that that decision lacks legal effects’. (39) 36.      However, those effects depend on whether the decision relates to measures that are currently being implemented or have already been implemented. (a)    Initiation of the procedure laid down in Article108(2) TFEU in respect of measures in the course of implementation 37.      As the Court of Justice stated in the judgment in Deutsche Lufthansa, in a situation where the Commission has already initiated the formal examination procedure under Article 108(2) TFEU, if national courts were able to depart from the Commission’s preliminary assessment that the measure at issue is capable of presenting aid elements and decide not to suspend its implementation, the effectiveness of Article 108(3) TFEU would be frustrated. (40) 38.      The Court acknowledged that the standstill obligation only applies to measures which may be classified as State aid within the meaning of Article 107(1) TFEU and that, before drawing the appropriate conclusions from a possible infringement of that obligation, national courts must first decide whether or not the measure in question constitutes State aid. However, it considered that, once a decision to open the formal investigation procedure has been adopted, the preventive aim of the State aid control system established by the FEU Treaty would be undermined if the implementation of the measure in question were not deferred until the Commission resolves the doubts raised as to its aid character and its compatibility with the internal market, (41) irrespective of whether the measure actually involves State aid. 39.      In other words, where the Commission adopts a decision to initiate the procedure laid down in Article 108(2) TFEU in respect of a measure that has not been notified and has not yet been implemented, or is in the course of implementation, the Member State concerned is required to suspend its implementation until the procedure is closed. For their part, national courts have the duty, pursuant to the last sentence of Article 108(3) TFEU, to enforce that obligation, by ordering the suspension of any implementation act and rejecting requests seeking payment in execution of that measure. (42) 40.      As a consequence, that decision is intended to produce independent binding legal effects and constitute, therefore, an act that may be challenged under Article 263 TFEU. (43) As the Court had already acknowledged in the judgment in Italgrani, (44) the Commission’s decision to initiate the formal investigation procedure in the circumstances described above is not simply a preparatory step, in which case an action against the decision closing that procedure would ensure sufficient protection against any unlawfulness. The irreversible consequences of a delay in paying aid due to the prohibition in the final sentence of Article 108(3) TFEU could not be eradicated by a decision that the aid is compatible with the Treaty or by proceedings brought against a Commission decision that it is incompatible. 41.      The situation is different, as the General Court correctly held in the order under appeal, when the measure has already been fully implemented. (b)    Initiation of the procedure laid down in Article108(2) TFEU in respect of measures already implemented 42.      The suspensive effect resulting from the Commission’s decision to initiate the formal investigation procedure in respect of a measure that is in the course of implementation – which applies irrespective of whether aid elements are involved – does not come into play where the measure has already been implemented. 43.      If the Commission provisionally classifies that measure as aid, that decision may constitute a basis on which national courts may order interim measures, including the recovery of the sums paid. They are not, however, under a duty to do so if they have doubts about the existence of State aid. 44.      In itself, the initiation of the formal investigation procedure, which is an intermediary act based on provisional assessments, does not create an obligation on the part of national courts (or national authorities) to proceed with recovery. In that respect, national courts (and national authorities) are bound solely by the prohibition set forth in the last sentence of Article 108(3) TFEU, (45) which applies only to measures which may be classified as State aid within the meaning of Article 107(1) TFEU. 45.      The Court made that clear in the judgment in CELF II. A national court, before which an action has been brought following the initiation of a formal investigation procedure under Article 108(3) TFEU, seeking the recovery of unlawful aid is not required to grant the relief sought unless the conditions justifying such relief are met, including, in particular, the absence of any doubt as to whether the measure constitutes State aid. (46) Contrary to the contention put forward by the Government of Gibraltar, that judgment does not contradict, but rather supports, the distinction drawn by the General Court in the order under appeal between measures already implemented and measures not yet implemented or which are in the process of being implemented, as regards the legal effects of the Commission’s decision to initiate the procedure under Article 108(2) TFEU. 46.      Likewise, the judgment in Deutsche Lufthansa does not call that distinction into question. 47.      Admittedly, in that judgment, the Court of Justice held that, in the context of the cooperation between the national courts, on the one hand, and the Commission and the Courts of the European Union, on the other, national courts must, in particular, refrain from taking decisions which conflict with a decision of the Commission, even if it is provisional, and are required to adopt all the necessary measures with a view to drawing the appropriate conclusions from a breach of the standstill obligation. The Court also clarified that, to that end, national courts may, in addition to suspending the implementation of the measure in question, order the recovery of payments already made or provisional measures for the purpose of safeguarding both the interests of the parties concerned and the effectiveness of the Commission’s decision to initiate the formal examination procedure. (47) 48.      However, first, these statements relate to a situation in which the Commission initiated the formal examination procedure regarding a measure which was being implemented. (48) Second, even in such a situation, the Court held, in line with its previous case-law, that the adoption of such measures requires that there be no doubt that the measure in question constitutes State aid: if a national court entertains doubts as to whether the measure at issue constitutes State aid or as to the validity or interpretation of the decision to initiate the formal examination procedure, it may seek clarification from the Commission or, more importantly, refer a question to the Court for a preliminary ruling. (49) Third, the Court referred to the ‘possibility’ for national courts to issue a recovery order or interim measures, (50) rather than an ‘obligation’. (51) That implies, in my view, that national courts must always strike a balance between the various interests at stake before ruling on recovery or interim measures. 49.      Nor is the reasoning of the General Court in the order under appeal – according to which decisions to initiate the formal investigation procedure in respect to measures already implemented are not intended to produce binding legal effects – called into question by the judgment in Commission v Hansestadt Lübeck, (52) on which the Government of Gibraltar and the appellants also rely. 50.      The case that gave rise to the latter judgment concerned an action for annulment of the decision to initiate the formal investigation procedure with respect to measures relating to Lübeck Airport. Before the General Court and on appeal before the Court of Justice, the Commission argued that the City of Lübeck (Germany) no longer had an interest in bringing proceedings after the airport had been sold to a private investor. According to the Commission, the contested decision had ceased to produce its only legal effect, namely the suspension of the aid measure pending the investigation. (53) 51.      Referring in particular to the judgment in Deutsche Lufthansa and the order of the President of the Court of 4 April 2014, Flughafen Lübeck, (54) the Court held that ‘the obligation to suspend the implementation of the measure in question [was] not the only legal effect of a decision to initiate the formal investigation procedure’. In rejecting the Commission’s ground of appeal, it observed that after the privatisation of Lübeck Airport, the City of Lübeck remained ‘at least exposed to the risk that a national court might order the recovery of any aid granted’ under the previous owner. The General Court was therefore correct in holding that, ‘in the absence of a final decision of the Commission closing the formal investigation procedure, the effects of the decision at issue endured, so that the City of Lübeck retained an interest in bringing proceedings seeking the annulment of that decision’.(55) 52.      In that regard, it should be borne in mind, in the first place, that at the time when the action for annulment had been brought, the measures in respect of which the Commission had opened the formal investigation procedure were still being implemented. Therefore, the judgment in Commission v Hansestadt Lübeck, (56) like the judgment in Deutsche Lufthansa, concerned an act which, in the light of the case-law of the Court reviewed in points 37 to 40 of this Opinion, was open to challenge. 53.      Second, it is certainly true that a decision to open the formal investigation procedure in respect of a measure which has not been notified and has been partly or fully implemented exposes the interested parties to the risk that national courts might order interim measures, including the recovery of what has already been paid. After the adoption of such a decision, there is at the very least a significant element of doubt as to the legality of that measure. (57) 54.      As I have stated above, the case-law of the Court of Justice requires, however, that there should be no doubt on that qualification in order for the national courts to order such measures. 55.      Third, the judgment in Commission v Hansestadt Lübeck (58) concerned the question whether the City of Lübeck had an interest in bringing proceedings, (59) which is a distinct admissibility requirement from that relating to the existence of an act which may be the subject of an action for annulment. Both of those requirements must be satisfied cumulatively in order for such an action to be admissible. 56.      Exposure to the risk of a national court issuing a recovery order, arising from a decision to open a formal investigation procedure that casts doubt on the legality of the measure in question, is sufficient to justify an interest in obtaining a review by the EU Courts of the lawfulness of that decision. However, it follows from the considerations set out above that it is not sufficient to conclude that such a decision, while being an intermediate act, has independent binding legal effects which enable it to be classified as an act open to challenge according to Article 263 TFEU. (60) 57.      Lastly, the judgment of 24 October 2013, Deutsche Post v Commission, (61) on which the appellants and the Government of Gibraltar rely, also does not, to my mind, contradict the reasoning of the General Court in the order under appeal. In that judgment, (62) referring to the judgment in Italy v Commission, the Court of Justice merely reiterated the binding legal effects of a decision to initiate the procedure provided for in Article 108(2) TFEU in respect of a measure currently being implemented and classified as new aid. (63) 3.      Conclusion 58.      In the light of all the foregoing considerations, I am of the view that the General Court did not err in distinguishing between Commission decisions initiating the formal investigation procedure in respect of measures ‘in the course of implementation as new aid’, and measures that ‘have already been implemented’ for the purpose of examining whether the decision at issue could be challenged. 59.      As a final remark, I would like to point out that, as the Court emphasised, 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 final position, which would be incompatible with the system of division of powers and remedies provided for by the FEU Treaty. (64) In assessing whether a decision to initiate the procedure laid down in Article 108(2) TFEU is open to challenge, the ‘interference’ with the exercise of Commission’s powers within the system of prior control of State aid must be carefully considered. The formal investigation procedure enables the Commission to gather information from interested parties to assess not only the compatibility of the measure at issue, but also its classification as State aid. Since such classification may require a particularly complex assessment, it is preferable to allow the Commission to make a final and fully informed decision before the Courts of the European Union examine it. B.      On whether the decision at issue can be challenged 60.      For the purposes of determining whether there is a challengeable act under Article 263 TFEU, the decision at issue – which extends the formal investigation procedure concerning Gibraltar’s corporate income tax system to cover the tax treatment of MJN GibCo – should be regarded as equivalent to a decision to initiate that procedure. This point was accepted by all parties at the hearing in response to a question from the Court of Justice. 61.      In the order under appeal, the General Court found that the measure in question had already been implemented when the decision at issue was adopted, namely on 31 October 2022, and, necessarily, when the action before it was brought. (65) 62.      In its response, the Government of Gibraltar maintains, however that the General Court failed to note that the measure in question produced ‘enduring effects’, as the decision at issue itself acknowledges. First, in that decision, the Commission referred to the ‘continued application’ of a tax ruling granted in 2012 to Mead Johnson GibCo, after, and in spite of, a legislative amendment enacted in 2013 that brought royalty income within the charge of taxation, as from 1 January 2014, without specifying an end date. Second, the Commission stated that the alleged aid may have been transferred to other entities of the MJN group, and may therefore have produced enduring effects after the dissolution of Mead Johnson GibCo in October 2018. (66) 63.      In that respect, it suffices to note, first, that, as the General Court held in paragraph 43 of the order under appeal, it is clear from the decision at issue that the measure in question consisted in the application of the advance ruling granted to MJN GibCo between 1 January 2014 and its dissolution. (67) Second, as the Commission observed, the reference in that decision to the possibility of spill over of the advantage allegedly granted to MJN GibCo to other entities within the MJN group is a different question from that of whether the measure in question is still being implemented. 64.      In any event, it became clear at the hearing that the appellants and the Government of Gibraltar do not dispute the fact that the measure in question has been fully implemented. 65.      The appellants submit that the decision at issue continues to produce binding legal effects in relation to them, notwithstanding that the measure in question has already been fully implemented. 66.      First, they point to the risk of proceedings being brought before the courts of Gibraltar seeking the immediate recovery of the alleged advantages conferred by the measure in question. At the hearing before the Court of Justice, they referred to proceedings already pending, without, however, providing further details as to the specific subject matter of those proceedings or the date on which they were brought. It also emerged at that hearing that those proceedings have been stayed, or at least in part. 67.      In that regard, as noted above, in the light of the allocation of powers between the Commission and the national courts within the system of prior control of State aid established by the FEU Treaty, the mere risk that a national court may order recovery of amounts paid in implementation of a measure in respect of which the Commission has initiated the procedure under Article 108(2) TFEU cannot, in itself, be regarded as producing independent binding legal effects capable of rendering that decision a challengeable act under Article 263 TFEU. 68.      Second, the appellants, supported by the Government of Gibraltar, further argue that the decision at issue produces binding legal effects in that it sets out the final position of the Commission as regards its powers under Article 92(3)(a) of the Withdrawal Agreement. It is thus wrong to view that decision as an intermediate measure expressing solely provisional opinions. They also allege infringement of Article 47 of the Charter of Fundamental Rights, submitting that the argument that the illegality attached to the provisional assessments in the decision at issue may be relied on in support of an action against the final decision closing the formal investigation procedure, thereby affording the applicant sufficient judicial protection, is incorrect. Even if the Commission’s powers under the Withdrawal Agreement were successfully challenged in an action against the final decision, the interim disruption to the appellants’ legal certainty in their relations with the Gibraltar tax authorities would nonetheless persist. 69.      Although these arguments address issues beyond the scope of this Opinion, I would make the following brief observations. 70.      First, I recall that the Court has already clarified that the position set out in an act adopted by an EU institution regarding that institution’s competence to adopt the act cannot, in itself, be regarded as having binding legal effect within the meaning of Article 263 TFEU. (68) Any act of the EU institutions, irrespective of whether such an act produces binding legal effects, carries a statement on the competence of the issuing institution, be it implicitly or explicitly. To attribute autonomous legally binding effect to such a statement would imply that any act adopted by an institution could be challenged under Article 263 TFEU. (69) 71.      Moreover, it follows from the case-law of the Court of Justice that the seriousness of the alleged infringement by the institution concerned cannot justify an exception to the absolute bars to proceedings laid down by the Treaty. (70) Therefore, the Commission’s alleged lack of powers under Article 92(3)(a) of the Withdrawal Agreement, and the alleged infringement of that agreement resulting therefrom, are insufficient to give the decision at issue binding legal effect. 72.      Second, the conclusion that the decision at issue is not a challengeable act is not called into question by the arguments of the appellants based on the right to effective judicial protection and the situation of legal uncertainty borne by them. The Court has already made clear that, while the requirement of binding legal effects must be interpreted in the light of the right to effective judicial protection guaranteed by Article 47(1) of the Charter of Fundamental Rights, that right is not intended to alter the system of judicial review laid down by the Treaties, and in particular the rules governing the admissibility of direct actions before the Courts of the European Union. (71) 73.      Finally, 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. (72) That is the case with regard to the Commission’s alleged lack of competence to adopt the decision at issue. C.      Intermediate conclusions 74.      In the light of all the foregoing considerations, I am of the view that the General Court correctly concluded that the decision at issue did not constitute a challengeable act under Article 263 TFEU. The appeal should accordingly be rejected. IV.    Conclusion 75.      For all the reasons set out above, I propose that the Court of Justice should: –        dismiss the appeal; –        order Mead Johnson Nutrition (Asia Pacific) Pte Ltd, MJN Global Holding BV, and Mead Johnson Nutrition Co. to bear their own costs and to pay those incurred by the European Commission; –        order the Government of Gibraltar to bear its own costs. 1      Original language: English. 2      OJ 2015 L 248, p. 9. 3      See judgment of 16 October 2014, Alpiq RomIndustries and Alpiq RomEnergie v Commission (T‑129/13, EU:T:2014:895), as well as orders of 3 March 2015, Gemeente Nijmegen v Commission (T‑251/13, EU:T:2015:142), and of 8 December 2015, Italy v Commission(T‑673/14, EU:T:2015:969). 4      T‑37/23, EU:T:2024:570. 5      OJ 2023 C 52, p. 10. 6      See paragraphs 2 to 12 of the order under appeal. 7      Commission Decision 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). 8      T‑508/19, EU:T:2022:217. 9      The Commission recalled that the advance tax ruling 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 MJN 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. Accordingly, the Commission considered that the continuation of MJN GibCo’s 2012 advance tax ruling, following the 2013 amendment to the Gibraltar Income Tax Act 2010 until its dissolution, should be considered to be the measure in question. Following a preliminary examination of the measure in question, the Commission provisionally considered that that measure conferred State aid on MJN GibCo in the form of an exemption from corporation tax, which was potentially incompatible with the internal market. 10      OJ 2020 L 29, p. 7. In accordance with Article 92(1) of the Withdrawal Agreement concerning ‘ongoing administrative procedures’, the EU institutions continued to be competent for administrative procedures governed by Regulation 2015/1589 which were initiated before the end of the transition period on 31 December 2020. Article 92(3)(a) of the Withdrawal Agreement provides that an administrative procedure on State aid is to be considered as having been initiated at the moment at which the procedure has been allocated a case number. The appellants claimed, at first instance, that, as the case file SA.34914 and all associated procedures were closed and terminated by the adoption of the 2018 final decision, there was no ‘ongoing procedure’ and, therefore, the Commission could not rely on Article 92(3)(a) of the Withdrawal Agreement in order to establish its competence to adopt the decision at issue. 11      See the order under appeal, paragraphs 43 to 59. 12      See the order under appeal, paragraphs 60 and 68. 13      C‑1/09, ‘the judgment in CELF II’, EU:C:2010:136. 14      C‑77/12 P, EU:C:2013:695. 15      C‑284/12, ‘the judgment in Deutsche Lufthansa’, EU:C:2013:755. 16      The Commission contends that the appellants’ argument that the decision at issue produces binding legal effects on them because they remain open to potential recovery proceedings has been submitted inexplicably late and must be declared inadmissible to the extent that that argument was not raised in the appeal. Similarly, the same argument forms part of the Government of Gibraltar’s response to the appeal and is also inadmissible, in that it seeks the annulment of the decision at issue on grounds that are distinct and independent from those raised in the appeal. The Commission further observes that such an argument was not raised before the General Court and cannot validly be raised before the Court of Justice against the order under appeal, since it constitutes a new line of reasoning. 17      Judgment of 6 July 2023, Julien v Council (C‑285/22 P, EU:C:2023:551, paragraph 45 and the case-law cited). 18      See, to that effect, judgment of 10 February 2026, WhatsApp Ireland v European Data Protection Board (C‑97/23 P, EU:C:2026:81, paragraph 67 and the case-law cited). 19      Judgment of 10 February 2026, WhatsApp Ireland v European Data Protection Board (C‑97/23 P, EU:C:2026:81, paragraph 69 and the case-law cited). 20      Judgment of 10 February 2026, WhatsApp Ireland v European Data Protection Board (C‑97/23 P, EU:C:2026:81, paragraph 70 and the case-law cited). 21      See, to that effect, judgments of 5 October 1994, Italy v Commission (C‑47/91, ‘the judgment in Italgrani’, EU:C:1994:358, paragraph 24), and of 24 November 2020, Viasat Broadcasting UK (C‑445/19, EU:C:2020:952, paragraph 18 and the case-law cited). 22      See, to that effect, judgments of 5 March 2019, Eesti Pagar (C‑349/17, EU:C:2019:172, paragraph 56 and the case-law cited), and of 24 November 2020, Viasat Broadcasting UK (C‑445/19, EU:C:2020:952, paragraph 36 and the case-law cited). 23      Judgment of 15 July 1964 (6/64, EU:C:1964:66). 24      Judgment of 11 December 1973, Lorenz (120/73, EU:C:1973:15, paragraph 8). See, also, judgments of 21 November 1991, Féderation nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon (C‑354/90, EU:C:1991:440, paragraph 11), and in Deutsche Lufthansa, paragraph 29. 25      See, to that effect, judgments of 11 July 1996, SFEI and Others (C‑39/94, EU:C:1996:285, paragraph 41), of 2 May 2019, A-Fonds (C‑598/17, EU:C:2019:352, paragraph 45 and the case-law cited), and of 24 November 2020, Viasat Broadcasting UK (C‑445/19, EU:C:2020:952, paragraph 16 and the case-law cited). 26      See, to that effect, judgment of 24 November 2020, Viasat Broadcasting UK (C‑445/19, EU:C:2020:952, paragraph 17 and the case-law cited). National courts cannot rule on the compatibility of the aid with the internal market, that determination being a matter for the Commission, subject to review by the Court of Justice; see, to that effect, judgment of 11 July 1996, SFEI and Others (C‑39/94, EU:C:1996:285, paragraph 42 and the case-law cited). 27      Judgment of 18 July 2007, Lucchini (C‑119/05, EU:C:2007:434, paragraph 50 and the case-law cited). 28      See, to that effect, judgment of 11 July 1996, SFEI and Others (C‑39/94, EU:C:1996:285, paragraph 40 and the case-law cited). 29      See, to that effect, judgments of 11 July 1996, SFEI and Others (C‑39/94, EU:C:1996:285, paragraph 40 and the case-law cited), and of 26 October 2016, DEI and Commission v Alouminion tis Ellados (C‑590/14 P, EU:C:2016:797, paragraph 101 and the case-law cited). 30      Judgment of 23 January 2019, judgment of 23 January 2019, Fallimento Traghetti del Mediterraneo (C‑387/17, EU:C:2019:51, paragraph 56). 31      See, to that effect, the judgment in CELF II, paragraph 30; see, also, the judgment in Deutsche Lufthansa, paragraph 31. 32      See, to that effect, judgment of 23 January 2019, Fallimento Traghetti del Mediterraneo (C‑387/17, EU:C:2019:51, paragraph 63). 33      Judgment of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (C‑143/99, EU:C:2001:598, paragraph 26), and the judgment in Deutsche Lufthansa, paragraph 29. 34      The judgment in Deutsche Lufthansa, paragraph 32. National courts before which an application to enforce Article 108(3) TFEU is pending cannot stay proceedings while the formal investigation procedure is ongoing, see judgment in CELF II, paragraph 31. 35      See judgment of 23 January 2019, Fallimento Traghetti del Mediterraneo (C‑387/17, EU:C:2019:51, paragraphs 53 and 57), with particular reference to actions for damages, which are, in principle, independent of any parallel investigation by the Commission concerning the aid in question. 36      See judgment of 23 January 2019, Fallimento Traghetti del Mediterraneo (C‑387/17, EU:C:2019:51, paragraph 59 and the case-law cited). 37      See judgments of 12 February 2008, CELF and ministre de la Culture et de la Communication (C‑199/06, EU:C:2008:79, paragraphs 49 to 52), of 23 January 2019, Fallimento Traghetti del Mediterraneo (C‑387/17, EU:C:2019:51, paragraph 59), and of 15 December 2022, Veejaam and Espo (C‑470/20, EU:C:2022:981, paragraphs 56 to 66); EU law only imposes to order the aid recipient to pay interest in respect of the period of unlawfulness. 38      See judgment of 12 February 2008, CELF and ministre de la Culture et de la Communication (C‑199/06, EU:C:2008:79, paragraph 53). 39      The judgment in Deutsche Lufthansa, paragraph 33. 40      See, to that effect, the judgment in Deutsche Lufthansa, paragraph 38. 41      The judgment in Deutsche Lufthansa, paragraphs 38 to 40. 42      Judgment of 12 January 2023, DOBELES HES (C‑702/20 and C‑17/21, EU:C:2023:1, paragraph 119). In that judgment, the Court has nevertheless held that a decision by a national court ordering the competent Member State authority to pay the unlawful aid subject to the condition that it must first be notified to the Commission and that that institution gives its consent, or is deemed to have given it, is also likely to prevent new aid from being paid in breach of Article 108(3) TFEU. 43      Such a conclusion could already be drawn from the case-law of the Court. In the judgment of 9 October 2001, Italy v Commission (C‑400/99, ‘the judgment in Italy v Commission’, EU:C:2001:528), the Court held in paragraph 57 that ‘regarding aid in the course of implementation the payment of which is continuing and which the Member State regards as existing aid, the contrary classification as new aid, even if provisional, adopted by the Commission in its decision to initiate the procedure under Article [108(2) TFEU] in relation to that aid, has independent legal effects.’ As the General Court observed in paragraph 28 of the order under appeal, the same reasoning applies logically when the Member State concerned has refrained from notifying on the grounds that the measure at issue did not constitute State aid. 44      Judgment of 5 October 1994, Italy v Commission (C‑47/91, EU:C:1994:358, paragraphs 25 to 30). 45      At least until the Commission decides to issue an injunction to provisionally recover the aid on the basis of Article 13 of Regulation 2015/1589. The mere reference, in the decision to initiate the procedure, to the obligations arising from the last sentence of Article 108(3) TFEU is insufficient for that purpose; see the judgment in Italy v Commission, paragraphs 53 and 54. 46      See, to that effect, the judgment in CELF II, paragraphs 35 and 36. Only where all the conditions laid down in paragraph 36 of that judgment are met are national courts, according to that judgment, under a duty, where requested, to grant such interim measures; see paragraphs 36 and 38 thereof. 47      The judgment in Deutsche Lufthansa, paragraphs 41 to 43 and the operative part. See, in the same circumstances, the order of the Court of 4 April 2014, Flughafen Lübeck (C27/13, EU:C:2014:240, paragraph 27). 48      See the judgment in Deutsche Lufthansa, paragraph 42. 49      The judgment in Deutsche Lufthansa, paragraph 44. 50      For example, as the Commission suggested in paragraph 62 of its Notice on the enforcement of State aid law by national courts (OJ 2009 C 85, p. 1), the placement of the funds on a blocked account so that they do not remain at the disposal of the recipient; see, to that effect, the judgment in CELF II, paragraph 37. 51      In particular, the terminology used by the Court conflicts with the wording of the first question referred for a preliminary ruling by the Oberlandesgericht Koblenz (Higher Regional Court, Koblenz, Germany), in which that court asked whether ‘an uncontested decision of the Commission to initiate a formal investigation procedure under the second sentence of Article 108(3) TFEU [has] the result that, in appeal proceedings concerning the recovery of payments made and an order to refrain from making future payments, a national court is bound by the Commission’s legal opinion in that decision as to whether a measure constitutes State aid’ (emphasis added). It is also worth noting that the Court used a different language when it considered the duty of national courts to suspend the implementation of the measure (see paragraphs 38 to 40 of the judgment in Deutsche Lufthansa). 52      Judgment of 21 December 2016 (C‑524/14 P, EU:C:2016:971). 53      The judgment of 21 December 2016, Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971, paragraphs 23 and 24). 54      C‑27/13, EU:C:2014:240, paragraph 27. 55      The judgment 21 December 2016, Commission v Hansestadt Lübeck(C‑524/14 P, EU:C:2016:971, paragraphs 30 and 31). 56      Judgment of 21 December 2016 (C‑524/14 P, EU:C:2016:971). 57      The judgment in Italy v Commission, paragraph 59. 58      Judgment of 21 December 2016 (C‑524/14 P, EU:C:2016:971). 59      According to the settled case-law of the Court of Justice, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest – which is an essential and fundamental prerequisite for any legal proceedings and must exist at the date on which the action is brought and continue until the end of the procedure – requires that the annulment of the contested act be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it; see judgment of 29 July 2024, Validity v Commission (C‑51/23 P, EU:C:2024:664, paragraph 32). The interest in bringing proceedings is therefore evaluated in the light of the situation of the applicant. On the contrary, whether an act is open to challenge must be assessed objectively, on the basis of its substance, and not by reference to the applicant. 60      The same considerations apply with regard to the order of the Vice-President of the Court of 13 November 2019, EDP España v Commission [C‑536/19 P(I), EU:C:2019:965], which concerned the question of whether a company that had benefited from the measure in question before the decision to initiate the formal investigation procedure was adopted had a direct and current interest in the outcome of the dispute and should therefore be granted leave to intervene in the action for annulment brought against that decision. 61      C‑77/12 P, EU:C:2013:695. 62      Paragraphs 52 and 53. 63      It follows from the decision in question in the case that gave rise to the judgment of 24 October 2013, Deutsche Post (C‑77/12 P, EU:C:2013:695), that is, Commission Decision of 12 September 2007, ‘State aid C 36/07 (ex NN 25/07) – State aid to Deutsche Post AG’ (OJ 2007 C 245, p. 21, recital 15), that Deutsche Post AG’s public service obligation, in the framework of which the alleged aids were granted, had still not expired when that decision was adopted. 64      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). 65      See order under appeal, paragraph 43. 66      After recalling, in recital 78 of the decision at issue, that, for the purpose of the application of the State aid rules, separate legal entities may be considered to form one economic unit, the Commission held, in recital 79, that it could not, at that stage, exclude that other members of the MJN group benefitted from the advantage conferred on MJN GibCo. 67      See, in particular, section 5, ‘Conclusion’, of the decision at issue. 68      See, to that effect, judgment of 12 September 2006, Reynolds Tobacco and Others v Commission (C‑131/03 P, EU:C:2006:541, paragraph 66); the case that gave rise to the Court of First Instance’s judgment upheld by the Court of Justice concerned a Commission decision to bring proceedings before a court of a non-Member State. 69      See, to that effect, judgment of 15 January 2003, Philip Morris International v Commission (T‑377/00, T‑379/00, T‑380/00, T‑260/01 and T‑272/01, EU:T:2003:6, paragraph 86), upheld by judgment of 12 September 2006, Reynolds Tobacco and Others v Commission (C‑131/03 P, EU:C:2006:541). 70      See, to that effect, order of 10 May 2001, FNAB and Others v Council (C‑345/00 P, EU:C:2001:270, paragraphs 39 to 42). See, also, judgment of 25 March 2021, Carvalho and Others v Parliament and Council (C‑565/19 P, EU:C:2021:252, paragraph 48). 71      See, to that effect, judgment of 25 October 2017, Romania v Commission (C‑599/15 P, EU:C:2017:801, paragraph 68). 72      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).