ORDER OF THE GENERAL COURT (Third Chamber)
6 November 2018 (*)
(Action for annulment — Environment — Regulation (EU) 2017/852 — Protection of human health and the environment — Prohibition on chlor-alkali production using mercury as an electrode — Article 263, fourth paragraph, TFEU — Act not of individual concern — Inadmissibility)
In Case T‑560/17,
Fortischem a.s., established in Nováky (Slovakia), represented by C. Arhold, P. Hodál and M. Staroň, lawyers,
applicant,
v
European Parliament, represented by I. McDowell, L. Darie and A. Tamás, acting as Agents,
and
Council of the European Union, represented by M. Moore and J. Kneale, acting as Agents,
defendants,
ACTION under Article 263 TFEU for the annulment of letter (d) in Annex III, Part I to Regulation (EU) 2017/852 of the European Parliament and of the Council of 17 May 2017 on mercury, and repealing Regulation (EC) No 1102/2008 (OJ 2017 L 137, p. 1).
THE GENERAL COURT (Third Chamber),
composed of S. Frimodt Nielsen, President, V. Kreuschitz (Rapporteur) and N. Półtorak, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, Fortischem a.s., is a company established in Slovakia which manufactures chemical products. It produces, inter alia, chlor-alkali under an operating permit obtained on 11 June 2007 (licence No 4877‑15168/2007/Kor/470100806; ‘the operating permit’). The industrial process used for the production of those chemical products involves the use of mercury as an electrode and is known as the ‘mercury cell technique’.
2 On 24 November 2010, the European Parliament and the Council of the European Union adopted Directive 2010/75/EU on industrial emissions (integrated pollution prevention and control) (OJ 2010 L 334, p. 17; ‘the IE Directive’). The aim of that directive is to lay down rules on the integrated prevention and control of pollution arising from industrial activities (see recital 2 and Article 1 of the IE Directive). The directive entered into force on 6 January 2011 and was to be transposed by the Member States by 7 January 2013 (see Articles 80 and 83 of the IE Directive).
3 Article 11(b) of the IE Directive, which applies inter alia to the manufacture of inorganic chemical products such as chlor-alkali, provides that Member States are to take the necessary measures to provide that installations are operated in accordance with the principle of the best available techniques (‘BAT’). Article 14(3) of the IE Directive requires Member States to ensure that BAT conclusions are the reference for setting permit conditions for installations manufacturing chemical products.
4 Pursuant to Article 13 of the IE Directive, decisions concerning BAT conclusions are to be adopted in accordance with the regulatory procedure. In order to draw up, review and, where necessary, update BAT reference documents, the European Commission is to organise an exchange of information between the Member States, the industries concerned, non-governmental organisations promoting environmental protection and the Commission.
5 Article 15(3) of the IE Directive provides that the competent authority is to set emission limit values that ensure that, under normal operating conditions, emissions do not exceed the emission levels associated with the BAT as laid down in the decisions on BAT conclusions, either by setting emission limit values that do not exceed the emission levels associated with the BAT, or by setting different emission limit values than those referred to above in terms of values, periods of time and reference conditions.
6 Article 15(4) of the IE Directive provides that the competent authority may, in specific cases, set less strict emission limit values. Such a derogation may apply only where an assessment shows that the achievement of emission levels associated with the BAT as described in BAT conclusions would lead to disproportionately higher costs compared to the environmental benefits, due to the geographical location or the local environmental conditions of the installation concerned, or the technical characteristics of the installation concerned. That provision implements recital 16 of the IE Directive.
7 Article 21 of the IE Directive provides for the reconsideration and updating of permit conditions by the competent authority. Article 21(3) provides that, within 4 years of publication of decisions on BAT conclusions, the competent authority is to ensure that (i) all the permit conditions for the installation concerned are reconsidered and, if necessary, updated to ensure compliance with the IE Directive; and (ii) the installation complies with those permit conditions. The reconsideration is to take into account all the new or updated BAT conclusions applicable to the installation since the permit was granted or last considered.
8 However, recital 22 of the IE Directive states that, in specific cases where permit reconsideration and updating identifies that a longer period than 4 years after the publication of a decision on BAT conclusions might be needed to introduce new BAT, competent authorities may set a longer time period in permit conditions where this is justified on the basis of the criteria laid down in the IE Directive.
9 The Republic of Slovakia transposed the IE Directive in the zákon integrovanej prevencii a kontrole znečisťovania životného prostredia a o zmene a doplnení niektorých zákonov (Law on integrated pollution prevention and control, and on changes and amendments to certain laws) of 31 January 2013 (No 39/2013 Z. z) (‘the Slovak Law’).
10 Paragraph 33(2) of the Slovak Law provides the following:
‘Where permit reconsideration and updating identifies that a longer period than four years after the publication of a legally binding act of the European Union on [BAT] conclusions might be needed to introduce new [BAT], the competent authority may set a longer time period in permit conditions where this is justified on the basis of the criteria laid down in Paragraphs 23 and 24 [of the Slovak Law].’
11 The conditions referred to in Paragraphs 23 and 24 of the Slovak Law relate to the conditions laid down in Annex III to the IE Directive and those laid down in Article 15(4) of that directive, respectively.
12 Paragraph 22(6) of the Slovak Law provides that if different values of emission limits are determined as compared with the emission level set out in the BAT, its justification must include particular grounds for the determination of a different value of the emission limits including the justification of the binding conditions determined on the basis of the specified different value from the emission limits including the results of assessment. Different values from emission limits are substantial changes and can only apply if it is proved in the proceedings that the achievement of emission levels associated with the BAT would lead to disproportionately higher costs compared to the environmental benefits due to: (a) the geographical location or the local environmental conditions of the relevant operations; or (b) the technical characteristics of the relevant operations.
13 Over the course of 2012, the applicant planned to build a new membrane cell installation at its Nováky site (Slovakia), for the production of chlor‑alkali. That installation was intended to replace the existing mercury cell plant.
14 In December 2012, that project was abandoned during the environmental impact assessment procedure. Accordingly, the applicant decided that the new membrane cell installation would be built on the Strážske site (Slovakia).
15 In 2013, the European Union and 26 Member States signed the Minamata Convention on Mercury (‘the Minamata Convention’). Pursuant to Article 5(2), read in conjunction with Annex B, of that convention, processes for manufacturing chlor-alkali, in which mercury is used, are to be phased out by 2025. However, Article 6 of that convention provides for the possibility of postponing that phase-out to 2035.
16 On 9 December 2013, the Commission adopted Implementing Decision 2013/732/EU establishing the BAT conclusions under Directive 2012/75 for the production of chlor-alkali (OJ 2013 L 332, p. 34). The first conclusion (BAT 1) set out in that decision states that the BAT for the production of chlor-alkali is to use the bipolar membrane cell technique, the monopolar membrane cell technique or the asbestos-free diaphragm cell technique, or a combination thereof. It specifies that the mercury cell technique cannot be considered BAT under any circumstances. The second conclusion in that decision (BAT 2) states that, in order to reduce the emissions of mercury and to reduce the generation of waste contaminated with mercury during the decommissioning or conversion of mercury cell plants, BAT is to elaborate and implement a decommissioning plan. The Commission then enumerates a series of measures to make provision for in that plan. The third (BAT 3) and seventh (BAT 7) conclusions in that decision specify in particular mercury emission limits and monitoring conditions during the decommissioning or conversion of mercury cell plants.
17 In 2014, the environmental impact assessment documentation concerning the new installation on the Strážke site was collected, discussions regarding the funding for that installation were held and the selection of suppliers and service providers, inter alia in respect of the membrane cell technique, was conducted.
18 In 2015, following a re-assessment of the project to establish a membrane cell installation on the Strážke site, the applicant decided to change location and build it at Nováky. That decision was taken after geological surveys and extraction studies resulted in more complex technological assumptions requiring greater investment than expected, and taking account of developments in the technical salt markets and the sustained unpredictability of electricity prices.
19 The applicant’s decision gave rise to another environmental impact assessment procedure, a redrafting of design documentation, a new selection of suppliers and the termination of contracts with the suppliers selected for the Strážke site. New technical parameters relating to production also had to be taken into account.
20 On 28 October 2016, the applicant submitted a request to the competent Slovak authority for a permit to produce sodium hydroxide, hydrogen and chlorine using the membrane cell technique.
21 On 9 March 2017, the applicant submitted a request to the offices of the Slovenská inšpekcia životného prostredia (Slovak environmental inspectorate, Banská Bystrica, Slovakia) for the modification of its operating permit. That request was amended on 22 March 2017, then clarified for the first time on 21 April 2017 and for the second time on 26 June 2017. The applicant stated that the purpose of its request to modify its operating permit was to extend, to 31 December 2018, the time period in which it could proceed with the conversion, required by Implementing Decision 2013/732, of its mercury cell technology to membrane cell technology for the production of chlor-alkali.
22 In support of that request, the applicant stated that the new technology would not be fully operational before June 2018, taking into account the need to conduct operational tests and to train staff. Moreover, it took the view that the extension criteria had been met on account of the objective impossibility of meeting the prescribed phase-out deadline. According to the applicant, its installation generated significantly higher costs for compliance with Implementing Decision 2013/732 than a standard mercury cell installation.
23 On 28 March 2017, the applicant was granted a permit for the production of sodium hydroxide, hydrogen and chlorine by membrane electrolysis. Between January and March 2017, the applicant obtained the building permits required for its new production facility.
24 On 11 May 2017, the Council approved, on behalf of the European Union, the Minamata Convention on Mercury by Decision (EU) 2017/939 (OJ 2017 L 142, p. 5). The Slovak Republic ratified that convention on 31 May 2017.
25 On 17 May 2017, the Council and the Parliament adopted Regulation (EU) 2017/852 on mercury and repealing Regulation (EC) No 1102/2008 (OJ 2017 L 137, p. 1). Pursuant to Article 7(1) of Regulation 2017/852, the use of mercury and mercury compounds in the manufacturing processes listed in Part I of Annex III to that regulation is to be prohibited as from the dates set out therein.
26 Part I of Annex III to Regulation 2017/852 provides as follows:
‘Prohibited use of mercury or mercury compounds, whether in pure form or in mixtures, in manufacturing processes
…
(c) from 1 January 2022: manufacturing processes in which mercury is used as an electrode;
(d) by way of derogation from point (c), from 11 December 2017: chlor-alkali production in which mercury is used as an electrode.
…’
27 The applicant contests letter (d) in Part I of Annex III to Regulation 2017/852 (‘the contested provision’).
28 Pursuant to Article 24 of Regulation 2017/852, that regulation entered into force on 13 June 2017, with the contested provision to apply from 11 December 2017.
29 The applicant began the construction of its membrane cell installation in June 2017.
30 On 6 June 2017, the Slovak Ministry of the Environment submitted to the Slovak authorities responsible for examining the applicant’s request for an extension a declaration in which it stated the following:
‘Based on the overall analysis, especially our economic, environmental, technical and individual assessments, we recommend an extension of the deadline [for the applicant] until 31 December 2018 pursuant to Paragraph 33(2) [of the Slovak Law]. However, since there is a Regulation [2017/852] of the European Parliament and of the Council on mercury, prohibiting the operation of facilities using mercury electrolysis for the production of chlor-alkali as of 11 December 2017, we do not recommend granting an exemption from BAT 1 [Extension/Exemption from emission limit values]. The assessment of granting the different value for emission limits from the best available techniques does not apply to the regulation above. Pursuant to Article 258 [TFEU], in the event of the granting of an exemption the European Commission could take measures against the Slovak Republic for not complying with its obligations stemming from EU legislation. Therefore, we recommend that the authorising body consider the granting of the exemption pursuant to Paragraph 33(2) for BAT 2 and BAT 3 for the period up to 31 December 2018.’
Procedure and forms of order sought
31 By application lodged at the Registry of the General Court on 16 August 2017, the applicant brought this action.
32 By separate document lodged at the Registry of the General Court on 20 November 2017, the Commission raised an objection of inadmissibility under Article 130 of the Rules of Procedure of the General Court.
33 By separate document lodged at the Registry of the General Court on 24 November 2017, the Parliament raised an objection of inadmissibility under Article 130 of the Rules of Procedure.
34 The applicant submitted its observations on those objections on 22 December 2017.
35 By document lodged at the Registry of the General Court on 12 December 2017, the Commission sought leave to intervene in the present proceedings in support of the Council and of the Parliament.
36 By document lodged at the Registry of the General Court on 14 December 2017, the Kingdom of Sweden sought leave to intervene in the present proceedings in support of the Council and of the Parliament.
37 In its application, the applicant claims that the Court should:
– declare that the action is admissible and well founded;
– annul the contested provision;
– award the applicant costs in relation to the proceedings.
38 In its objection of inadmissibility, the Council claims that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
39 In its objection of inadmissibility, the Parliament claims that the Court should:
– dismiss the action as inadmissible;
– in the alternative, if the exception is rejected or if the Court reserves its decision on admissibility, allow the Parliament a further period to submit its form of order and arguments relied upon;
– order the applicant to pay the costs.
40 In its observations on the objections of inadmissibility, the applicant reiterates the form of order sought.
Law
41 Under Article 130(1) of the Rules of Procedure, the Court may, if the defendant so requests, rule on inadmissibility or lack of competence without going to the substance of the case. In the present case, the Court considers that it has sufficient information from the documents before it and has decided to give a decision by reasoned order without taking further steps in the proceedings.
42 In support of their objections of inadmissibility, the Parliament and the Council contend that the applicant does not have standing to bring proceedings under the fourth paragraph of Article 263 TFEU. According to the Parliament and the Council, the contested provision is not a regulatory act and does not concern the applicant individually.
43 The applicant disputes that assessment, arguing that it is directly concerned by the contested provision because the latter directly affects its legal situation and leaves no discretion to its addressees.
44 Furthermore, the applicant considers itself individually concerned by the contested provision, since it belongs to a limited class of economic operators affected by the contested provision, which alters rights acquired prior to its adoption. In support of that position, the applicant claims that (i) prior to the adoption of Regulation 2017/852, it had the right, pursuant to Recitals 16 and 22 as well as Article 15(4) of the IE Directive, to apply for an extension for the use of the mercury cell technique; (ii) it had exercised that right prior to the adoption, publication and entry into force of Regulation 2017/852; and (iii) had the regulation not been adopted, the applicant would have obtained such an extension. In the light of those factors and of the fact that the contested provision puts an end to any possibility of extending the use of the mercury cell technique, the applicant takes the view that it belongs to a limited class of economic operators affected by the contested provision, which alters rights acquired prior to its adoption.
45 Under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
46 The admissibility of an action for annulment brought by a natural or legal person against an act which is not addressed to it is therefore conditional on it being demonstrated either that the contested act concerns that person directly and individually, or that the contested act is a regulatory act which does not entail implementing measures and concerns it directly.
47 In the present case, the contested provision, contained in Regulation 2017/852, is not a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU, but is a legislative act. It has been held that the regulatory acts referred to by the fourth paragraph of Article 263 TFEU include acts of general application but do not encompass legislative acts (see, to that effect, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraphs 58 to 61). The distinction between a legislative and a regulatory act is based, according to the FEU Treaty, on the criterion of the procedure, legislative or not, which led to its adoption (order of 6 September 2011, Inuit Tapiriit Kanatami and Others v Parliament and Council, T‑18/10, EU:T:2011:419, paragraph 65). Regulation 2017/852 was adopted under the ordinary legislative procedure. Accordingly, the action for annulment brought by the applicant against the contested provision is admissible only on condition that the applicant demonstrate that it is directly and individually concerned by that provision.
Direct concern
48 The condition of direct concern requires, first, that the measure at issue directly affect the individual’s legal situation, and, secondly, that it leave no discretion to the addressees of that measure, who are entrusted with its implementation, such implementation being purely automatic and resulting from EU rules, without the application of other intermediate rules (judgment of 29 June 2004, Front national v Parliament, C‑486/01 P, EU:C:2004:394, paragraph 34; see also judgment of 17 September 2015, Confederazione Cooperative Italiane and Others v Anicav and Others, C‑455/13 P, C‑457/13 P and C‑460/13 P, not published, EU:C:2015:616, paragraph 46).
49 The contested provision prohibits, as of 11 December 2017, chlor-alkali production in which mercury is used as an electrode. That prohibition affects the applicant’s legal situation as the holder of an operating permit for chlor-alkali production using the mercury cell technique, since it can no longer use that technique in the manufacture of such products as from 11 December 2017.
50 Moreover, that provision leaves no discretion to the addressees of that measure who are entrusted with its implementation. The national authorities responsible for granting permits for chlor-alkali production cannot grant any derogation to or deviation from the prohibition on the use of mercury as an electrode in chlor-alkali production as of 11 December 2017.
51 Accordingly, the contested provision is of direct concern to the applicant.
Individual concern
Basic considerations
52 With regard to the condition relating to individual concern referred to in the fourth paragraph of Article 263 TFEU, it should be recalled that the fact that a measure is, by its nature and scope, a provision of general application, inasmuch as it applies to the economic operators concerned in general, does not prevent that provision from being of individual concern to some of them (see judgment of 16 December 2011, Enviro Tech Europe and Enviro Tech International v Commission, T‑291/04, EU:T:2011:760, paragraph 101 and the case-law cited).
53 Natural or legal persons may claim that a contested provision is of individual concern to them only if it affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed (judgment of 17 September 2009, Commission v Koninklijke FrieslandCampina, C‑519/07 P, EU:C:2009:556, paragraph 52; see also judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 72 and the case-law cited).
54 The fact that it is possible to determine more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that that measure must be regarded as being of individual concern to those persons where it is established that that application takes effect by virtue of an objective legal or factual situation defined by the measure in question (see judgment of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 47 and the case-law cited).
55 By contrast, where a measure affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons may be individually concerned by that measure inasmuch as they form part of a limited class of economic operators (see judgments of 17 January 1985, Piraiki-Patraiki and Others v Commission, 11/82, EU:C:1985:18, p. 227, paragraph 11; of 26 June 1990, Sofrimport v Commission, C‑152/88, EU:C:1990:259, paragraph 11; and of 17 September 2009, Commission v Koninklijke FrieslandCampina, C‑519/07 P, EU:C:2009:556, paragraph 54).
56 That can be the case particularly when the measure alters rights acquired by the individual prior to its adoption (see, to that effect, judgment of 13 March 2008, Commission v Infront WM, C‑125/06 P, EU:C:2008:159, paragraphs 71 and 72 and the case-law cited), or, where the contested measure prevents an individual’s application for authorisation being granted, when it is established that the individual had taken the necessary measures in order to fulfil the criteria for such approval and when, where those criteria have been met, the national authorities responsible for granting such authorisation were obliged to grant it, since they had no discretion in that regard (see, to that effect, judgment of 17 September 2009, Commission v Koninklijke FrieslandCampina, C‑519/07 P, EU:C:2009:556, paragraph 57).
The prohibition on chlor-alkali production using the mercury cell technique after 11 December 2017 further to Implementing Decision 2013/732
57 As explained in the background to the dispute, the aim of the IE Directive is to authorise industrial installations on the basis of BAT (see paragraphs 7 and 8 above).
58 In Implementing Decision 2013/732, the Commission defines three techniques as BAT for chlor-alkali production, stating that the mercury cell technique cannot be considered BAT under any circumstances (see paragraph 16 above).
59 Moreover, Article 21 of the IE Directive requires the competent national authorities to ensure, within 4 years of publication of decisions on BAT conclusions, that (i) all permit conditions for the installation concerned are reconsidered and, if necessary, updated to ensure compliance with the IE Directive; and (ii) the installation complies with those permit conditions (see paragraph 7 above).
60 Accordingly, pursuant to that provision, the competent Slovak authorities were required to reconsider the permit conditions for the applicant’s installation in order to ensure its compliance with the IE Directive within 4 years of the publication in the Official Journal of the European Union of Implementing Decision 2013/732. That decision was published in the Official Journal of the European Union on 11 December 2013, so that the competent Slovak authorities were, by 11 December 2017, to reconsider the permit conditions for the applicant’s installation in order to ensure its compliance with that decision. In the light of BAT 1 of Implementing Decision 2013/732, the competent authorities could no longer authorise the mercury cell technique following their reconsideration, which was to be completed by 11 December 2017. Those authorities could, at most, authorise a plan to decommission the installation in accordance with BAT 2 of Implementing Decision 2013/732.
61 Thus, irrespective of Regulation 2017/852 and the contested provision, the applicant was no longer to be authorised to produce chlor-alkali using the mercury cell technique after 11 December 2017.
62 However, between 9 March 2017 and 26 June 2017, the applicant submitted a request to the competent Slovak authorities in order to be able to produce chlor-alkali using the mercury cell technique until 31 December 2018. In the first clarification of its request, the applicant stated that that request was an extension request based on Paragraph 33(6) of the Slovak Law and on Recital 22 of the IE Directive. In the second clarification of its request, the applicant specified that it had based the latter also on the possibility afforded to the competent authority to grant exemptions where the costs connected with achieving the emission levels associated with the BAT are disproportionate in the light of the environmental benefits on account of the technical characteristics of the installation. That second clarification reproduces the wording of the derogation provided for by Article 15(4) of the IE Directive (as regards the request and the clarifications thereof, ‘the extension request’).
63 After the initial request and the first clarification thereof, the Parliament and the Council adopted Regulation 2017/852 containing the contested provision prohibiting the use of mercury as an electrode in chlor-alkali production as of 11 December 2017, without the possibility of derogation or extension. That provision applies to objectively determined situations and has legal effects with regard to a category of persons envisaged generally and in the abstract, that is, all producers of chlor-alkali.
64 The applicant takes the view, however, that it belongs to a limited class of economic operators within the meaning of the case-law cited in paragraph 55 above with regard to the contested provision, on the ground that it had made an extension request prior to the adoption of Regulation 2017/852 — and, therefore, of the contested provision — and that, in the absence of the contested provision, it would have been granted that extension by the Slovak authorities.
The possibility of requestingthe extension of an operating permit beyond 11 December 2017 pursuant to the IE Directive
65 In order to assess whether the applicant may be considered as belonging to a limited class of economic operators in the light of its extension request, it is necessary first of all to check whether the applicant is right to claim that the IE Directive granted it the possibility of making such a request prior to the entry into force of the contested provision.
66 In that connection, it must be recalled that, pursuant to Recital 22 of the IE Directive, in specific cases where permit reconsideration and updating identifies that a longer period than 4 years after the publication of a decision on BAT conclusions might be needed to introduce BAT, competent authorities may set a longer time period in permit conditions where this is justified on the basis of the criteria laid down in the IE Directive. That recital therefore grants the applicant the possibility of requesting the extension of its operating permit on the basis of the criteria laid down in the IE Directive.
67 Furthermore, Article 15(4) of the IE Directive provides that the competent authority may set less strict emission limit values by derogation from the emission levels associated with BAT. Such a derogation is to apply only if an evaluation shows that the achievement of emission levels associated with BAT would lead to disproportionately higher costs compared to the environmental benefits due to the geographical location or the local environmental condition, or the technical characteristics of the installation concerned.
68 In the present case, BAT 1 of Implementing Decision 2013/732 relates to the techniques used in chlor-alkali production. In that decision, the Commission characterises the bipolar membrane cell, monopolar membrane cell and asbestos-free diaphragm cell techniques as BAT, and states that the mercury cell technique cannot be considered BAT under any circumstances (see paragraph 16 above). BAT 1 of Implementing Decision 2013/732 does not define emission limit values associated with the BAT for chlor-alkali production.
69 Accordingly, the applicant cannot benefit from a derogation in respect of its chlor‑alkali production using the mercury cell technique pursuant to Article 15(4) of the IE Directive. That derogation in fact applies only to ‘emission levels associated with [BAT], in accordance with the indications set out in the BAT conclusions’. Only the BAT which set an emission level relating thereto may be the subject of a derogation. The mercury cell technique is not a BAT and, since the BAT defined by Implementing Decision 2013/732 for chlor‑alkali production do not involve the use of mercury, they are not associated with a mercury emission level for chlor‑alkali production.
70 That literal interpretation of the scope of Article 15(4) of the IE Directive is supported by the principle whereby any derogation from a rule must be interpreted restrictively (see, to that effect, judgment of 12 October 2017, Kamin und Grill Shop, C‑289/16, EU:C:2017:758, paragraph 20 and the case-law cited).
71 Furthermore, that restrictive interpretation supported by the objective of the IE Directive, which is to prevent, reduce and, as far as possible, eliminate pollution caused by industrial activities. The definition of BAT for the manufacture of chemical products is intended to implement that objective. In allowing, by means of derogations, the continued manufacture of chemical products using techniques other than BAT, such derogations are contrary both to the implementation of BAT for the products concerned and to the aims of the IE Directive.
72 Lastly, the abovementioned interpretation is borne out by the contextual aspect, which is the fact that Implementing Decision 2013/732 lays down levels for mercury emissions to air and water at the outlet of the mercury treatment unit only during the decommissioning or conversion of facilities using the mercury cell technique (see BAT 3 and BAT 7 of Implementing Decision 2013/732) and not in normal operating conditions. Moreover, that decision states, with regard to those emission levels, that ‘[g]iven that this performance level does not relate to normal operating conditions, it is not an emission level associated with the [BAT]’.
73 The fact that the applicant does not have the possibility of requesting an extension of its operating licence, on the basis of Article 15(4) of the IE Directive, to produce chlor-alkali using the mercury cell technique precludes its individual identification, within the meaning of the fourth paragraph of Article 263 TFEU, on the basis of such a possibility. Furthermore, the applicant has failed to establish which of the other criteria laid down in the IE Directive would otherwise have formed the basis of the applicant’s extension request. Accordingly, on those grounds alone, the applicant’s action must be declared inadmissible.
The individual identification of the applicant on account of its request to extend its operating permit
74 Even if the applicant were able to request an extension of its right to operate an installation producing chlor-alkali using the mercury cell technique, that fact does not individually identify the applicant as against any other chlor-alkali manufacturer using the same technique. Any chlor-alkali manufacturer using the technique concerned could have sought such an extension.
75 The applicant takes the view, however, that it is individually concerned because, in the absence of Regulation 2017/852, which contains the contested provision, the applicant would be in the position of a person who benefited de facto from an extension of their permit to operate an installation producing chlor-alkali using the mercury cell technique. In support of that argument, the applicant relies on the letter from the Slovak Ministry of the Environment of 21 June 2017, together with the extensions which the competent authorities granted to Vynova Tessenderlo, a chlor‑alkali manufacturer established in Belgium, and to Inovyn, a chlor‑alkali manufacturer established in Sweden, respectively.
76 In the light of those arguments, in the first place, it should be noted that the administrative authority responsible for granting an extension of the applicant’s operating permit had a discretion, and that the applicant had no certainty that such an extension would be granted further to its request.
77 Recitals 16 and 22 of the IE Directive, together with Article 15(4) of the IE Directive, state that the competent authority ‘may’ grant an extension. Furthermore, that authority has discretion so far as concerns both the application of the criteria for granting, and the duration of, such an extension. Recital 22 of the IE Directive refers to ‘the criteria laid down in the Directive’, and the criteria contained in that directive give the competent authority a discretion, as is illustrated by the criteria under Article 15(4) of the IE Directive, namely the cost analysis of the costs of compliance in comparison with the environmental benefits.
78 That discretion is confirmed by the provisions of the Slovak Law transposing the IE Directive. Paragraph 33(2) of the Slovak Law therefore refers to the criteria set out in particular in Paragraph 24 of that law, which provides that the inspectorate is to establish emission limits in order to ensure that emissions in normal operating conditions do not exceed the BAT. The third subparagraph of the latter provision permits the same derogations, which are based on the same criteria as those set out in Article 15(4) of the IE Directive. The applicant could therefore have no certainty that the extension sought would be granted.
79 Moreover, the applicant cannot allege the existence of an acquired right to an extension of its permit on the basis of the letter of 21 June 2017 from the Slovak Ministry of the Environment. That letter in fact contains only a recommendation made further to the applicant’s request. The applicant has failed to demonstrate that the recommendation would automatically have led to the extension request being granted. Moreover, the applicant has itself characterised the letter from the Ministry of the Environment as a preliminary assessment.
80 Thus, contrary to the situation which gave rise to the judgment of 17 September 2009, Commission v Koninklijke FrieslandCampina (C‑519/07 P, EU:C:2009:556, paragraph 57), in which the Court found that the criteria for obtaining the authorisation sought did not afford discretion to the authority responsible for granting such authorisation — and, accordingly, that a pending request for authorisation was sufficient to create a limited class of economic operators — in the present case, the criteria for obtaining the extension sought by the applicant involve a discretion being exercised by the competent authority, in such a way that that request is not sufficient individually to identify the applicant.
81 In the second place, in so far as the applicant takes the view that it is individually concerned irrespective of the absence of a right to an extension, it is correct that the case-law does not, in principle, restrict the fact of belonging to a limited class of operators solely to those cases in which those operators benefit from an acquired right or have the near certainty of authorisation being granted, taking into account the absence of discretion in granting such authorisation. The case-law in fact states that a person may be individually concerned by a measure on account of the fact of belonging to a limited class of operators affected by that measure ‘particularly’ when the decision alters rights acquired by the individual prior to its adoption (see judgment of 27 February 2014, Stichting Woonlinie and Others v Commission, C‑133/12 P, EU:C:2014:105, paragraph 46 and the case-law cited).
82 However, an applicant’s standing to bring legal proceedings, pursuant to the fourth paragraph of Article 263 TFEU, cannot depend solely on the applicant’s intention of availing itself of the possibility, afforded to it by the regulatory framework, of requesting an extension of its operating permit, but rather is based on an objective concept. Nor can it be assessed solely on the basis of a purely potestative condition with regard to an applicant. In the present case, the fact that the applicant belongs to a limited class of operators arises solely from the exercise, prior to the adoption of the contested provision, of the possibility afforded by the IE Directive of requesting an extension of the applicant’s operating permit.
83 Moreover, the absolute prohibition on operating a chlor-alkali installation using the mercury cell technique as of 11 December 2017 applies to all operators, irrespective of their procedural status in the light of the IE Directive and of Implementing Decision 2013/732. It deprives all operators of the possibility of requesting an extension, that is, not only those operators who, like the applicant, sought such an extension prior to the adoption of the contested provision, but also to all operators who had that possibility but did not and can no longer avail themselves of it.
84 In view of the above, the applicant is wrong to claim that it is individually concerned by the contested provision.
85 That assessment is not called into question by the other arguments put forward by the applicant.
86 Thus the arguments put forward by the applicant, which are based on the previous practice of the competent national authorities, its legitimate expectation as to the possibility of requesting an extension and its right to an effective remedy, do not prove the applicant’s individual concern.
87 In so far as the applicant relies on two extension decisions taken, prior to the entry into force of Regulation 2017/852, by the competent Belgian authority in respect of Vynova Tessenderlo and by the competent Swedish authority in respect of Inovyn, respectively, pursuant to Recital 22 of the IE Directive, they indicate at most that, for those authorities, it was possible to grant an extension prior to the entry into force of Regulation 2017/852. However, those decisions give no indication as to the existence of a right or of a possibility for the applicant of being granted an extension in the present case. They were taken following an examination by the competent authorities of the case at hand, and they are binding neither on the competent Slovak authority nor on the General Court.
88 In so far as the applicant alleges that it is individually concerned because it has a legitimate expectation to be able to request an extension, it should be observed that (i) EU bodies have discretion as regards the choice of measures to put into effect in order to achieve the environmental objective of preventing and controlling pollution caused by industrial emissions; (ii) pursuant to Article 5(1) of the IE Directive, operating permits are to be granted by the competent authority without prejudice to other requirements laid down in national or EU law; and (iii) pursuant to Article 21(3) of the IE Directive, as recalled in Recital 8 of Implementing Decision 2013/732, national authorities may update all permit conditions during their reconsideration thereof.
89 Accordingly, prior to the adoption of the contested provision, economic operators could not have a legitimate expectation that possible derogations to a rule intended to end the use of mercury in chlor-alkali production would be maintained. The applicant could not legitimately expect to be able to request and obtain a derogation from the prohibition on using, as of 11 December 2017, the mercury cell technique in chlor-alkali production. The applicant is therefore wrong to allege an infringement of the principle of legitimate expectation in support of its individual concern within the meaning of the fourth paragraph of Article 263 TFEU.
90 Moreover, the fact that the Minamata Convention provides for longer time limits for prohibiting the use of mercury in chlor-alkali manufacturing processes does not serve to prove the applicant’s individual concern. Admittedly, following the signature and approval of that convention by the European Union, its provisions now form an integral part of the legal order of the European Union (see, to that effect, judgment of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraph 30 and the case-law cited). However, those time limits are maximum periods since the aim of the Minamata Convention is to protect human health and the environment from anthropogenic emissions and releases of mercury and mercury compounds (see Article 1 of the Minamata Convention). Accordingly, that convention does not preclude the adoption, by the European Union, of shorter time limits for prohibiting the use of mercury in chlor-alkali manufacturing processes. Furthermore, the applicant, who is not a party to the convention concerned, cannot expect to be entitled to the time limits laid down by that convention. It follows that the applicant cannot claim to demonstrate its individual concern on that basis.
91 Lastly, the fact that the action brought by the applicant is inadmissible as lacking individual concern is not a breach of its fundamental right to an effective remedy, enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
92 It is settled case-law that Article 47 of the Charter is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union, as is apparent also from the Explanation on Article 47 of the Charter, which must, in accordance with the third subparagraph of Articles 6(1) TEU and Article 52(7) of the Charter, be taken into consideration for the interpretation of the Charter (see judgments of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 42; of 18 July 2013, Alemo-Herron and Others, C‑426/11, EU:C:2013:521, paragraph 32; and of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 97).
93 Accordingly, the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, but such an interpretation cannot have the effect of setting aside those conditions, which are expressly laid down in that Treaty (see judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 44 and the case-law cited).
94 Furthermore, judicial review of compliance with the European Union legal order is ensured, as can be seen from Article 19(1) TEU, not only by the Court of Justice but also the courts and tribunals of the Member States. The FEU Treaty has established, by Article 263 and 277, on the one hand, and Article 267, on the other, a complete system of legal remedies and procedures designed to ensure judicial review of the legality of European Union acts, and has entrusted such review to the Courts of the European Union (see judgments of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraphs 90 and 92, and of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 57).
95 In that connection, it must be emphasised that, in proceedings before the national courts, individual parties have the right to challenge the legality of any decision or other national measure relative to the application to them of a European Union act of general application, pleading the invalidity of that act (see judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 46 and the case-law cited).
96 It follows that references on validity constitute, like actions for annulment, means for reviewing the legality of European Union acts (see judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 47 and the case-law cited).
97 In that regard, it must be borne in mind that where a national court or tribunal considers that one or more arguments for invalidity of a European Union act, put forward by the parties or, as the case may be, raised by it of its own motion, are well founded, it must stay proceedings and make a reference to the Court for a preliminary ruling on the act’s validity, the Court alone having jurisdiction to declare a European Union act invalid (see judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 48 and the case-law cited).
98 In the present case, the applicant has failed to demonstrate that it has no legal remedy before the national courts against a decision of the competent Slovak authorities applying the contested provision and refusing to grant an extension of the applicant’s operating permit to manufacture chlor-alkali using the mercury cell technique beyond 11 December 2017. The applicant merely states that, it must exhaust the administrative remedies before a reference for a preliminary ruling may be made. That condition is not sufficient to render its available remedies ineffective.
99 Furthermore, in so far as the applicant alleges that the lawfulness of the decision of the Slovak supervisory authority can be subject to judicial review only after the ‘phase-out deadline’ taking into account the requisite exhaustion of administrative remedies, the applicant fails to state clearly which deadline is concerned. That argument cannot call into question the foregoing assessments in the absence of clarification which would render such an argument comprehensible.
100 Lastly, in so far as the applicant alleges that the impossibility of directly challenging the contested provision would lead it initially to breach the law and then to bring an action against the national authority’s punitive and coercive measures in order to safeguard those legitimate rights, the applicant has failed to prove the existence of such possible measures. Furthermore, those measures must necessarily be preceded by a decision of the competent administrative authority refusing the request to extend the applicant’s operating permit beyond 11 December 2017.
101 In light of the foregoing, the action must be dismissed as inadmissible pursuant to Article 130(7) of the Rules of Procedure.
102 As the action is inadmissible, there is no longer any need to rule on the applications for leave to intervene made by the Commission and the Kingdom of Sweden, respectively.
Costs
103 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
104 Since the applicant has been unsuccessful, it must, in accordance with the forms of order sought by the Council and the Parliament, be ordered to pay, in addition to its own costs, the costs incurred by the latter.
105 Furthermore, in accordance with Article 144(10) of the Rules of Procedure, the Council, the Parliament, the Commission and the Kingdom of Sweden are each to bear their own costs relating to the applications for leave to intervene.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. There is no longer any need to rule on the applications for leave to intervene made by the European Commission and the Kingdom of Sweden.
3. Fortischem a.s. is to bear its own costs and pay those incurred by the Council of the European Union and the European Parliament, with the exception of those relating to the applications for leave to intervene.
4. Fortischem, the Council, the Parliament, the Commission and the Kingdom of Sweden are each to bear their own costs relating to the applications for leave to intervene.
Luxembourg, 6 November 2018.
E. Coulon | | S. Frimodt Nielsen |