ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber)
1 October 2007 (*)
(Action for annulment – Directive 2003/87/EC – Scheme for greenhouse gas emission allowance trading – National allocation plan for emission allowances for Slovakia in respect of the period from 2005 to 2007 – Decision indicating that the Commission has no intention to raise objections – Non-actionable measure – Inadmissibility)
In Case T‑489/04,
U.S. Steel Košice s.r.o., established in Košice (Slovakia), represented by E. Vermulst, lawyer, C. Thomas, Solicitor, and D. Hueting, Barrister,
Commission of the European Communities, represented by U. Wölker and D. Lawunmi, acting as Agents,
ACTION for annulment of the Commission Decision of 20 October 2004 concerning the national allocation plan for greenhouse gas emission allowances notified by the Slovak Republic for the period from 2005 to 2007 in accordance with Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32),
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of M. Jaeger, President, J. Azizi and E. Cremona, Judges,
Registrar: E. Coulon,
makes the following
1 Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32) established, with effect from 1 January 2005, a scheme for greenhouse gas emission allowance trading within the Community in order to promote reductions of greenhouse gas emissions, in particular emissions of carbon dioxide (‘CO2’), in a cost-effective and economically efficient manner (Article 1 of Directive 2003/87). The directive is based on the Community’s reduction obligations under the United Nations Framework Convention on Climate Change and the Kyoto Protocol. The latter was approved by Council Decision 2002/358/EC of 25 April 2002 concerning the approval, on behalf of the European Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments thereunder (OJ 2002 L 130, p. 1). It entered into force on 16 February 2005.
2 Directive 2003/87 provides essentially that a permit must be obtained in advance for greenhouse gas emissions from the installations listed in Annex I thereto, including from those in the iron and steel industry (Articles 4 to 8), and that the emissions must be covered by allowances authorising the permit-holding operator to emit a certain quantity of greenhouse gases (Article 11), the allowances being allocated in accordance with national allocation plans (‘NAPs’) for an initial phase, from 2005 to 2007, and for subsequent five-year phases. If an operator manages to reduce its emissions, the excess allowances may be sold to other operators. Conversely, an operator of an installation the emissions of which are excessive may purchase the necessary allowances from an operator who has excess allowances.
3 The conditions and procedures under which the national authorities allocate allowances to operators of installations on the basis of an NAP are provided for in Articles 9 to 11 of Directive 2003/87.
4 Article 9(1) of Directive 2003/87 thus states:
‘For each period referred to in Article 11(1) and (2), each Member State shall develop [an NAP] stating the total quantity of allowances that it intends to allocate for that period and how it proposes to allocate them. The [NAP] shall be based on objective and transparent criteria, including those listed in Annex III, taking due account of comments from the public. …
For the period referred to in Article 11(1), the [NAP] shall be published and notified to the Commission and to the other Member States by 31 March 2004 at the latest. …’
5 Article 9(3) of Directive 2003/87 provides:
‘Within three months of notification of [an NAP] by a Member State under paragraph 1, the Commission may reject that [NAP], or any aspect thereof, on the basis that it is incompatible with the criteria listed in Annex III or with Article 10. The Member State shall only take a decision under Article 11(1) or (2) if proposed amendments are accepted by the Commission. Reasons shall be given for any rejection decision by the Commission.’
6 According to the first sentence of Article 10 of Directive 2003/87, Member States are to allocate at least 95% of the allowances free of charge for the three-year period beginning on 1 January 2005 (first allowance period).
7 Article 11(1) of Directive 2003/87, concerning the allocation and issue of allowances, provides:
‘For the three-year period beginning 1 January 2005, each Member State shall decide upon the total quantity of allowances it will allocate for that period and the allocation of those allowances to the operator of each installation. This decision shall be taken at least three months before the beginning of the period and be based on its [NAP] developed pursuant to Article 9 and in accordance with Article 10, taking due account of comments from the public.’
8 The applicant operates in the Slovak steel industry. According to its own statements, it accounts for the entire industry and generates around one-sixth of Slovak greenhouse gas emissions.
9 The preparation of the Slovak NAP commenced in November 2003. In April 2004 the applicant submitted to the competent authorities an application for allowances totalling 10 379.182 kilotonnes of CO2 equivalent per year for the period from 2005 to 2007.
10 On 6 July 2004, the Slovak Government notified to the Commission its NAP for the period from 2005 to 2007, stating that the total annual quantity of CO2 emission allowances for the installations covered by that NAP was 35 459.4 kilotonnes. The quantity of allowances earmarked for the applicant totalled 10 379.182 kilotonnes per year.
11 In its examination of the Slovak NAP, the Commission took the view that the total quantity of planned allowances had to be reduced. Following discussions with the Commission and given the Commission’s insistence, the Slovak Government, by letter of 15 October 2004, accepted the reduction of that quantity by 4 959 kilotonnes to bring it down to 30 500 kilotonnes per year.
12 In those circumstances, on 20 October 2004 the Commission adopted the decision concerning the national allocation plan for greenhouse gas emission allowances notified by the Slovak Republic for the period from 2005 to 2007 in accordance with Directive 2003/87 (‘the contested decision’). In that decision, expressly based on Article 9(3) of the directive, the Commission states, inter alia, that it took into account information contained in the letter of 15 October 2004 concerning the Slovak Republic’s decision to reduce the total allocation by 4 959 kilotonnes of allowances per year compared with what had been planned in the NAP notified on 6 July 2004 (recital 4).
13 The operative part of the contested decision reads as follows:
No objections are raised to the [NAP] of the Slovak Republic with regard to the criteria of Annex III to the Directive or with regard to Article 10 thereof.
1. The total quantity of allowances to be allocated by the Slovak Republic according to its [NAP] to installations listed therein, including subsequent information notified to the Commission by letter … dated 15 October 2004, shall not be exceeded …
2. The [NAP] may be amended without prior acceptance by the Commission if the amendment consists in modifications of the allocation of allowances to individual installations within the total quantity to be allocated to installations listed therein resulting from improvements to data quality.
3. Any amendments to the [NAP] other than those referred to in paragraph 2 of this Article shall be notified to the Commission and accepted in accordance with Article 9(3) of Directive 2003/87/EC.
This Decision is addressed to the Slovak Republic.’
Procedure and forms of order sought
14 By application lodged at the Registry of the Court of First Instance on 20 December 2004, the applicant brought the present action.
15 In its application the applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
16 In support of its action, the applicant alleges, inter alia, infringement of Article 9(3) of Directive 2003/87 and of criteria Nos 1 and 2 of Annex III thereto, on the grounds that in the contested decision the Commission approved an NAP while limiting the allocation of allowances to a level (30 500 kilotonnes per year) which was considerably lower than the total quantity of allowances initially provided for in the NAP notified by the Slovak Republic (35 459.4 kilotonnes per year), a quantity which was compatible with the Slovak Republic’s commitments under the Kyoto Protocol. In that context, it also criticises the Commission for having commenced negotiations with the Slovak Government which are not authorised by Directive 2003/87, instead of simply rejecting the Slovak NAP, and for having placed unacceptable pressure on the Slovak Government in those negotiations to reduce the total quantity of allowances to be allocated. According to the applicant, the bilateral negotiations between the Commission and the Slovak Republic were neither transparent nor objective.
17 After requesting and obtaining a one-month extension for submitting its defence, the Commission, by separate document of 23 March 2005, raised an objection of inadmissibility pursuant to Article 114 of the Rules of Procedure of the Court of First Instance. The applicant lodged its observations on the objection on 28 April 2005.
18 The Commission contends that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
19 In its observations on the objection of inadmissibility, the applicant claims that the Court should:
– dismiss the objection of inadmissibility as inadmissible;
– award it judgment by default, in accordance with Article 122 of the Rules of Procedure;
– in any event, dismiss the objection of inadmissibility;
– order the Commission to pay the costs.
20 Under Article 114(1) of the Rules of Procedure, the Court of First Instance may give a decision on admissibility without considering the substance of the case, where a party has made an application to that effect. Under Article 114(3), unless the Court decides otherwise, the remainder of the proceedings is to be oral. In the present case, the Court considers that the information in the documents before it is sufficient and that there is no need to open the oral procedure.
Arguments of the parties
21 The Commission maintains that the contested decision is not of direct or individual concern to the applicant within the meaning of the fourth paragraph of Article 230 EC.
22 The decision is not of direct concern to the applicant because the Commission’s limited role as set out in Article 9(3) of Directive 2003/87 is remote as regards the applicant. The scheme established by that directive is to provide Member States with autonomy for development of their NAPs, the Commission’s powers being restricted to assessing the NAPs on the basis of Article 10 of Directive 2003/87 and the criteria set out in Annex III. If no objections are raised by the Commission, the Member State may implement its NAP, which remains its sole responsibility.
23 The Commission acknowledges that it may reject the NAP under Article 9(3) of Directive 2003/87, but it submits that its position must be distinguished from that where it has the role of giving approval.
24 The Slovak NAP does not itself have direct legal consequences for the applicant’s position outside the framework of the national measures for its implementation under Slovak domestic law. The contested decision cannot have a wider and more direct legal effect than the NAP itself. The appropriate legal remedy for the applicant is thus to challenge the implementation of the NAP at national level.
25 Under Article 11(1) of Directive 2003/87, the Slovak Republic is to take action to implement its NAP at national level, taking into account the comments of the public. It has some discretion in this regard. Accordingly, neither the contested decision nor the Slovak NAP has any direct legal effects on the applicant’s position.
26 The Commission adds that the decision is not of individual concern to the applicant either. The fact that it is the only operator on the national steel market and is expressly named in the Slovak NAP is not sufficient in this regard.
27 The applicant submits as a preliminary issue that the Commission’s objection is inadmissible. It observes that the Commission requested and obtained a one-month extension of the time-limit for lodging its defence, pursuant to Article 46(3) of the Rules of Procedure, in order to gather information which it said was necessary. The document lodged by the Commission, however, is not such a pleading and, given its brevity (seven pages), also gives no indication as to why an extension could have been necessary for it to be prepared. Since the Commission did not lodge a defence within the period prescribed, the applicant asks the Court to give judgment by default pursuant to Article 122(1) of the Rules of Procedure.
28 Regarding the admissibility of the present action, the applicant considers that the contested decision is of individual concern to it because the Commission approved therein the NAP intended to grant it individually specific emission allowances. Under Article 9(3) of Directive 2003/87 and criteria Nos 5 and 10 of Annex III thereto, the Commission was required to examine its individual situation, which it in fact did.
29 The applicant also considers that the contested decision is of direct concern to it on the grounds that the Commission authorised therein the immediate implementation of the NAP and introduced restrictions on the Slovak Government’s plan, as notified on 6 July 2004, to allocate certain emission allowances to the applicant. In fact, only the quantity of allowances appearing in the NAP notified on 6 July 2004, namely 35 459.4 kilotonnes per year, should be taken into account and not the quantity appearing in the proposal revised by the Slovak Government, namely 30 500 kilotonnes, as the latter is solely the result of pressure unlawfully placed on the Slovak Government by the Commission.
30 The applicant states in this regard, as part of its plea alleging misuse of powers, that the Commission entered into bilateral negotiations with the Slovak Government although no provision of Directive 2003/87 authorises it to embark with the Member States upon such negotiations, which are neither transparent nor objective and ultimately always become political. Rather than merely rejecting the Slovak NAP, the Commission began a process of exchange of offers and counter-offers with the Slovak Government, during which it placed abnormal pressure on the Slovak authorities, insisting that they accept a reduction in the quantity of allowances initially notified.
31 In the applicant’s view, the fact that the Slovak Government must subsequently take action to implement the NAP in accordance with the contested decision does not prevent that decision from being of direct concern to the applicant. The Commission obtained a written commitment from the Slovak Government, in its letter of 15 October 2004, that it would reduce the total quantity of allowances initially notified, while Article 2(1) of the contested decision makes mandatory the reduction specified in that letter. The possibility that the Slovak Government might not allocate to the applicant the authorised quantity of allowances is therefore purely theoretical.
32 Where the possibility that the addressee of a decision will not give effect to it is purely theoretical because the addressee’s intention to apply it is not in doubt, the decision is of direct concern to those parties affected by it (Case 11/82 Piraiki-Patraiki and Others v Commission  ECR 207, paragraphs 9 and 10).
33 In that context, the applicant refers to Joined Cases C‑68/94 and C‑30/95 France v Commission  ECR I‑1375, paragraph 51, according to which third parties harmed by commitments which constitute a requirement for a decision approving a concentration pursuant to Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1990 L 257, p. 14) are directly affected by that decision when the intention of the parties who notified the concentration to implement those commitments is not in doubt. It considers that the case which gave rise to that judgment is particularly comparable to the present case. The parties to the concentration at issue in that case notified it to the Commission and, following negotiations with the Commission, were forced to make certain amendments to their plans in the form of commitments, the Commission’s approval of the concentration being made legally contingent on the implementation of those commitments. In the present case, the Slovak Republic notified its NAP to the Commission and, following negotiations with the Commission, was also forced to make amendments to it. The contested decision, approving the NAP, was made expressly subject to compliance with those amendments (Article 2(1)).
34 The applicant objects, next, to the argument alleging that the role of the Commission is limited and remote. It states that in the present case the Commission played a very active and interventionist role, initiating a negotiation process with the Slovak Government with regard to the allocations envisaged in the NAP and placing extreme pressure on the Slovak Government. Those negotiations, which are at the heart of the present proceedings, were aimed at enabling approval of the NAP on the basis of amendments made by the Slovak Government.
35 The applicant adds that, in the contested decision, the Commission indeed provided a legally required approval, thus bringing to an end the ‘standstill obligation’ which prevents Member States from implementing the NAP before receiving approval from the Commission, and imposed restrictions. The procedure provided for by Directive 2003/87 clearly creates a legal situation in which, first, a Member State may not legally implement its NAP without having previously notified it to the Commission and received approval from the latter and, second, decisions on allocation of individual allowances implementing the NAP must legally be in accordance with the approval decision.
36 According to the applicant, that system of prior approval may be compared directly with the procedure for control of State aid and that for control of concentrations under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1). Those two procedures involve a similar obligation of prior notification and standstill and the similar requirement that only concentrations or State aid which have been approved may be implemented. Decisions approving a concentration or State aid are of direct concern to the parties involved.
37 The applicant continues by stating that the need to implement the NAP at national level is not relevant with respect to the issue of whether the contested decision is of direct concern to it. That decision was adopted by the Commission in response to the notification from the Slovak Government of its intention to implement the NAP which it submitted to the Commission for approval. When the Commission approved its NAP and authorised the NAP’s immediate implementation, there could be no doubt, in the applicant’s view, that the Slovak Government was going to take the necessary action to that end. In those circumstances, the fact that the NAP must be implemented does not affect the argument that the contested decision is of direct concern to the applicant.
38 Lastly, the Commission has not claimed that there was any possibility that the contested decision would not lead to the applicant’s receiving a smaller quantity of allowances than that proposed in the NAP notified on 6 July 2004. In fact, the inevitable consequences of that decision have now occurred: in March 2005 the Slovak Government complied with the contested decision by allocating to the applicant a significantly lower quantity of allowances than that proposed in the NAP notified on 6 July 2004. The applicant moreover confirms that it has challenged that national measure before the Slovak courts.
Findings of the Court
39 First of all, the applicant’s claim for the Court to give judgement by default, as provided for by Article 41 of the Statute of the Court of Justice, applicable to proceedings before the Court of First Instance by virtue of the first paragraph of Article 53 of that statute, and by Article 122 of the Rules of Procedure of the Court of First Instance, must be dismissed, as the conditions of application of those provisions are not satisfied in the present case. Since the Commission raised an objection of inadmissibility pursuant to Article 114 of the Rules of Procedure before the expiry of the time-limit extended under Article 46(3) thereof, it cannot be alleged that it has ‘fail[ed] to file written submissions in defence’ or that it has ‘fail[ed] to lodge a defence to the application in the proper form within the time prescribed’, within the meaning of Articles 41 of the Statute of the Court of Justice and Article 122 of the Rules of Procedure (see, to that effect, the order in Case T‑387/00 Comitato organizzatore del convegno internazionale v Commission  ECR II‑3031, paragraphs 34 and 35).
40 Moreover, even if the Court might deliver judgment by default, it would in any event be required under Article 122(2) of the Rules of Procedure to examine the admissibility of the action.
41 Regarding the admissibility of the present action, the parties have exchanged arguments relating inter alia to the question of whether the contested decision produced direct legal effects on the applicant. The Commission referred in particular to the autonomy and responsibility conferred by Directive 2003/87 on the Member States in the preparation of the NAPs, whereas its own role was limited in the matter and did not consist in giving general authorisations in respect of notified NAPs. In those circumstances, before analysing whether the alleged legal effects of the contested decision on the applicant are direct, it is appropriate to consider whether that decision as such gave rise to legal effects on the applicant and whether it may therefore be challenged by way of action for annulment.
42 A decision which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act which may be the subject of an action for annulment under Article 230 EC (Case 60/81 IBM v Commission  ECR 2639, paragraph 9; France and Others v Commission, paragraph 62; C‑123/03 P Commission v Greencore  ECR I‑11647, paragraph 44; and Case T‑87/96 Assicurazioni Generali and Unicredito v Commission  ECR II‑203, paragraph 37).
43 Accordingly, it is necessary to ascertain whether the contested decision, adopted pursuant to Article 9(3) of Directive 2003/87, produces binding legal effects such as to affect the interests of the applicant by bringing about a distinct change in its legal position.
44 The Court notes that, under Article 1 of the contested decision, the Commission does not raise any objections to the NAP as submitted to it by the Slovak Government in its modified version of 15 October 2004 (see paragraphs 12 and 13 above).
45 With regard to the applicant’s criticism of the Commission for having authorised an excessively low total quantity of allowances, it need merely be recalled that that quantity was fixed not by the Commission in the contested decision, but by the Slovak Government in its NAP, that is to say, before that decision, during the bilateral discussions between the Commission and the Slovak Government (see paragraph 12 above). Moreover, the applicant has expressly acknowledged that the Slovak Government itself gave a written commitment to the Commission, in its letter of 15 October 2004, to reduce the total quantity of allowances initially notified (see paragraph 31 above).
46 It is true that the applicant alleges that the abovementioned bilateral discussions were unlawful (see paragraphs 29 and 30 above). That, however, is a question going to the merits of the case.
47 In any event, no provision of Directive 2003/87 prohibits the Commission, following notification of an NAP by a Member State, from entering into discussions with the Member State in order to influence the content of the notified document. However, nothing obliges the Member State concerned to take part in such discussions. Regarding the Slovak Government, even if it did unlawfully cede to the alleged pressure placed on it by the Commission during those discussions, the applicant should if appropriate bring an action before the national courts in order to have the lawfulness of the actions of the national authorities reviewed in the light of domestic law.
48 It follows that the reduction of the total quantity of allowances to be allocated, which took place following the discussions in question – discussions which, according to the applicant, are at the heart of the present case, (see paragraph 34 above) – cannot be regarded as constituting a legal effect of the contested decision itself.
49 Moreover, the fact that the Commission did not raise objections to the NAP containing the disputed reduction, determined by the notifying government itself, does not in itself affect the applicant’s interests (see, by analogy, Case T‑212/00 Nuove Industrie Molisane v Commission  ECR II‑347, paragraphs 40 to 42).
50 That conclusion is supported by the legal nature of the examination procedure instituted and of the Commission’s decision-making power exercised pursuant to Article 9(3) of Directive 2003/87.
51 The wording of the first sentence of Article 9(3), according to which the Commission ‘may reject [the NAP], or any aspect thereof’, indicates that the Commission does not have full powers of authorisation. Although that provision does allow the Commission ex ante control of the NAP notified by the Member State, the fact remains that that control does not necessarily lead to an authorisation, since the Commission must intervene only in so far as it finds it necessary to raise objections to certain aspects of the notified NAP and, in the event of refusal by the Member State to amend its NAP, to adopt a decision rejecting it. Consequently, a decision indicating that the Commission does not intend to raise any objections to the NAP may not be construed as a rights-creating authorisation because, by their nature, the measures notified in that context do not require such authorisation.
52 In so far as the applicant seeks to compare the scheme established by Directive 2003/87 with the rules governing monitoring of State aid, the Court adds that the words ‘may reject’ imply a certain margin of discretion for the Commission, which it is not obliged to make use of in all circumstances, whereas the rules on State aid are based on a principle of general prohibition – linked to a presumption of unlawfulness – according to which aid within the meaning of Article 87(1) EC is, as a rule, incompatible with the common market. Article 9(3) of Directive 2003/87, by contrast, is not based on such a principle and is not intended to derogate from any general prohibition. Contrary to the applicant’s line of argument, those differences between the procedure for examining State aid and that for examining NAPs highlight a fundamental distinction between those two ex ante control systems. It follows that the legal effects of the measures taken by the Commission under those two systems, both in respect of the Member States and in respect of the undertakings concerned, must also be clearly distinguished.
53 The same holds true for the applicant’s reference to Regulation Nos 4064/89 and 139/2004 on the control of concentrations between undertakings (see paragraphs 33 and 36 above). Unlike the system provided for by Article 9(3) of Directive 2003/87, the system of control established by those regulations requires an explicit, rights-creating authorisation from the authorities if the notified proposed concentration is to be capable of implementation.
54 It follows from the foregoing that Article 1 of the contested decision, in stating that the Commission does not raise any objections to the Slovak NAP, does not have the effect of granting a rights-creating authorisation because, by their nature, the Slovak measures notified in that context do not require such authorisation. Accordingly, that article cannot produce binding legal effects such as to affect the interests of the applicant by bringing about a distinct change in its legal position.
55 Regarding Article 2(1) and (3) of the contested decision, the Court finds that those provisions are auxiliary in nature in relation to Article 1 and that, moreover, they merely refer to the prohibition on exceeding the total quantity of allowances to be allocated under the NAP in question and to the obligation to notify the Commission of any substantial amendments to that NAP, a prohibition and an obligation which are already imposed by Article 11(1) and Article 9(3) of Directive 2003/87. Consequently, Article 2(1) and (3) of the contested decision cannot produce autonomous legal effects such as to affect the applicant’s interests.
56 Moreover, even if the contested decision were a challengeable act for the purposes of Article 230 EC, the act would not be of direct and individual concern to the applicant.
57 According to settled case-law, for a person to be directly concerned by a Community measure, the latter must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules alone without the application of other intermediate rules (see Case C‑386/96 P Dreyfus v Commission  ECR I‑2309, paragraph 43, and the case-law cited), while natural or legal persons cannot be individually concerned by such a measure unless they are affected by it by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as an addressee (Case 25/62 Plaumann v Commission  ECR 95, 107, and Case C‑263/02 P Commission v Jégo-Quéré  ECR I‑3425, paragraph 45).
58 In so far as the applicant challenges the lawfulness of the contested decision in that it authorised an excessively low total quantity of allowances, the Court need only state that the total quantity of emission allowances allowed to be emitted by all of the Slovak installations covered by the NAP cannot, by its nature, be of individual concern to the applicant.
59 In so far as the applicant’s challenges the contested decision in that it affects the quantity of individual allowances allocated to it, the Court finds at the outset, first, that the applicant does not claim that the quantity of individual allowances which, according to Annex I to the initial NAP, the Slovak Government proposed to allocate to it was modified in the revised NAP which is the subject of the contested decision and, second, as is apparent from the application, that that quantity of individual allowances earmarked for the applicant corresponds to what the applicant had sought.
60 The applicant claims, however, that the total quantity of allowances approved by the Commission (30 500 kilotonnes per year) is considerably lower than the aggregate amount of the allowances intended for individual installations and of reserves set out in the NAP (35 459.5 kilotonnes per year). Consequently, according to the applicant, the Slovak Government will inevitably have to allocate it a quantity of individual allowances lower than that provided for in the initial NAP.
61 This line of argument is not such as to establish that the contested decision is of direct concern to the applicant.
62 Neither Directive 2003/87 nor the contested decision effects an automatic distribution of the total quantity of allowances amongst the individual installations, in the sense that the reduction of the total quantity of allowances by 4 959 kilotonnes compared with the quantity initially envisaged in the NAP notified on 6 July 2004 resulted in specific percentages or quantities of allowances being allocated to the various individual Slovak installations.
63 Furthermore, under Article 2(2) of the contested decision, the Slovak Government was explicitly entitled to amend its NAP where the amendment concerned the allocation of allowances to certain installations, provided that the limits on the total quantity to be allocated to individual installations were complied with. Thus legally there would have been nothing to prevent the Slovak Government from granting a request from the applicant for allocation, on imperative economic grounds, of the same quantity of individual allowances as it had been granted under the initial NAP. It follows that, as at the date on which the present proceedings were brought, the fear expressed by the applicant, to the effect that the divergence between the total quantity of allowances allegedly approved by the contested decision and the total of the individual allowances envisaged in Annex I to the initial NAP would lead to a reduction in the quantity of its individual allowances, relates to a purely hypothetical scenario.
64 Moreover, although, according to the applicant’s assertions in its observations on the objection of inadmissibility raised by the Commission, that fear has subsequently turned out to be justified in that the Slovak Government did in fact grant the applicant a quantity of individual allowances lower than that envisaged in the initial NAP, this did not however follow directly from the contested decision but from the exercise of its discretion in this field by the Slovak Government, which was not required to reduce, and all the less in a proportion ratified by the contested decision, the quantity of individual allowances allocated to the applicant. Furthermore, the applicant has brought proceedings before the Slovak courts challenging the national measure implementing the disputed NAP (see paragraph 38 above).
65 The data provided by the applicant itself indeed confirm that the contested decision does not affect the applicant directly. The data indicate that the reduction in the quantity of individual allowances allocated by the Slovak Government to the applicant in March 2005 as compared to what was contemplated in Annex I to the initial NAP (the quantity of its individual allowances having gone from 31 137.546 to 28 646.542 kilotonnes for the period from 2005 to 2007, a reduction of 8%) was considerably lower than the reduction in the total quantity of allowances (which went from 35 459.4 to 30 500 kilotonnes per year, a reduction of 14%). Furthermore, it appears not only that the individual allowances allocated to the other installations falling, like the applicant, in group A (large sources) under the classification established in Annex I to the initial NAP have been reduced by differing amounts, but also that some of those installations even obtained a higher quantity of allowances than that initially envisaged (for example, installation 1014 ultimately obtained an individual allowance quantity of 1 628 kilotonnes compared with the 1 306 kilotonnes originally envisaged in Annex I to the initial NAP).
66 Accordingly, the contested decision, in addition to the fact that it does not impose any reduction in the total quantity of allowances, or a fortiori a reduction in the quantity of individual allowances, but merely refrains from raising any objections to the Slovak NAP, does not in any event affect the applicant individually and directly, the allocation of individual allowances within the limits of the total quantity of allowances being the responsibility of the Slovak Government alone.
67 It follows from all the foregoing considerations that the action is inadmissible.
68 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, as applied for by the Commission.
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
1. The action is dismissed as inadmissible.
2. U.S. Steel Košice s.r.o. shall pay the costs.
Luxembourg, 1 October 2007.