ORDER OF THE COURT OF FIRST INSTANCE (Second Chamber)
20 October 2008 (*)
(Action for annulment – Directive 2003/87/EC – Scheme for greenhouse gas emission allowance trading – National allocation plan in respect of emission allowances for Poland for the period from 2008 to 2012 – Decision by the Commission not to raise objections subject to certain conditions – Competence of Member States in the individual allocation of emission allowances – Lack of direct concern – Inadmissibility)
In Case T‑208/07,
BOT Elektrownia Bełchatów S.A., established in Rogowiec (Poland),
BOT Elektrownia Turów S.A., established in Bogatynia (Poland),
BOT Elektrownia Opole S.A., established in Brzezie (Poland),
Elektrownia ‘Kozienice’ S.A., established in Świerże Górne (Poland),
Elektrownia Połaniec S.A., – Grupa Electrabel Polska, established in Połaniec (Poland),
Elektrownia ‘Rybnik’ S.A., established in Rybnik (Poland),
Elektrownia Skawina S.A., established in Skawina (Poland),
Elektrownia ‘Stalowa Wola’ S.A., established in Stalowa Wola (Poland),
Południowy Koncern Energetyczny S.A., established in Katowice (Poland),
Zespół Elektrowni Dolna Odra S.A., established in Nowe Czarnowo (Poland),
Zespół Elektrowni Ostrołęka S.A., established in Ostrołęka (Poland),
Zespół Elektrowni Pątnów-Adamów-Konin S.A., established in Konin (Poland),
represented by B. Krużewski, M. Ciemiński, J. Młot-Schönthaler, N. Dodoo and S. Boullart, lawyers,
applicants,
supported by
Elektrociepłownia ‘Będzin’ S.A., established in Będzin (Poland),
Zespół Elektrociepłowni Bydgoszcz S.A., established in Bydgoszcz (Poland),
Zespół Elektrociepłowni Bytom S.A., established in Bytom (Poland),
Elektrociepłownia Białystok S.A., established in Białystok (Poland),
Elektrociepłownia ‘Gorzów S.A.’, established in Gorzów (Poland),
Elektrociepłownia Kalisz-Piwonice S.A., established in Kalisz (Poland),
Elektrociepłownia ‘Kraków’ S.A., established in Kraków (Poland),
Dalkia Łódź S.A., established in Łódź (Poland),
Dalkia Poznań Zespół Elektrociepłowni S.A., established in Poznań (Poland),
Elektrociepłownia Tychy S.A., established in Tychy (Poland),
Zespół Elektrociepłowni Wrocławskich Kogeneracja S.A., established in Wrocław (Poland),
Elektrociepłownie Wybrzeże S.A., established in Gdańsk (Poland),
Elektrociepłownia Zabrze S.A., established in Zabrze (Poland),
Elektrociepłownia ‘Zielona Góra’ S.A., established in Zielona Góra (Poland),
represented by B. Krużewski, M. Ciemiński, J. Młot-Schönthaler, N. Dodoo and S. Boullart, lawyers,
interveners,
v
Commission of the European Communities, represented by U. Wölker and D. Lawunmi, acting as Agents,
defendant,
APPLICATION for annulment of Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Republic of Poland for the period from 2008 to 2012 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 (Second Chamber),
composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and. S. Soldevila Fragoso, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the case
1 The applicants, the electricity and/or heating companies BOT Elektrownia Bełchatów S.A., BOT Elektrownia Turów S.A., BOT Elektrownia Opole S.A., Elektrownia ‘Kozienice’ S.A., Elektrownia Połaniec S.A. – Grupa Electrabel Polska, Elektrownia ‘Rybnik’ S.A., Elektrownia Skawina S.A., Elektrownia ‘Stalowa Wola’ S.A., Południowy Koncern Energetyczny S.A., Zespół Elektrowni Dolna Odra S.A., Zespół Elektrowni Ostrołęka S.A. and Zespół Elektrowni Pątnów-Adamów-Konin S.A., are companies incorporated under Polish law.
2 On 30 June 2006, the Republic of Poland, acting pursuant to Article 9(1) of 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 Directive’), notified the Commission of its national allocation plan for the period from 2008 to 2012 (‘the NAP’).
3 In response to questions put to the Republic of Poland by the Commission concerning the content of the NAP, the former sent the Commission additional information in two letters, dated 29 December 2006 and 9 January 2007 respectively.
4 On 26 March 2007, the Commission, acting pursuant to Article 9(3) of the Directive, adopted Decision C(2007) 1295 final concerning the NAP (‘the contested decision’). In that decision, the Commission concluded essentially that certain of the criteria listed in Annex III to the Directive had not been complied with and that the total annual quantity of emission allowances provided for by the NAP had to be reduced.
5 The operative part of the contested decision reads as follows:
‘Article 1
The following aspects of the [NAP] of [the Republic of] Poland for the first five‑year period mentioned in Article 11(2) of the Directive are incompatible respectively with:
1. criteria 1, 2 and 3 of Annex III to the Directive …
2. criterion 5 of Annex III to the Directive …
3. criterion 6 of Annex III to the Directive …
4. criterion 10 of Annex III to the Directive …
5. criterion 12 of Annex III to the Directive …
Article 2
No objections shall be raised to the [NAP], provided that the following amendments to the [NAP] are made in a non-discriminatory manner and notified to the Commission as soon as possible, taking into account the time‑scale necessary to carry out the national procedures without undue delay:
1. the total quantity to be allocated for the Community scheme is reduced by the sum of 76.132937 [million tonnes CO2 equivalent ‘MteqCO2’] of allowances per year and the adjustment resulting from any lowering of the number of installations covered and one‑fifth of the total number of allowances [the Republic of] Poland decides to issue pursuant to Article 13(2) of the Directive; and the quantities allocated to additional combustion installations are determined in accordance with the general methodologies stated in the [NAP] and on the basis of substantiated and verified emission figures and exclusively relate to the expansion element of the installations concerned, with the total quantity being further reduced by any difference between the allocations to these installations and the 6.2884 million tonnes set aside annually for these installations; and the total quantity being increased in respect of emissions of project activities which were already operational in 2005 and resulted in 2005 in emission reductions or limitations in installations falling under the scope of the Directive to the extent that the resulting emission reductions or limitations due to these project activities have been substantiated and verified;
2. the allocations to installations do not go beyond their expected needs as a result of the application of bonuses for early action, biomass or co‑generation;
3. information is provided on the manner in which new entrants will be able to begin participating in the Community scheme, in a way that complies with the criteria of Annex III to the Directive and Article 10 thereof;
4. the quantity of allowances allocated to an installation that is listed in the [NAP] and operating in its territory is not subject to adjustments as a result of the closure of other installations within that territory;
5. the overall maximum amount of CERs and ERUs which may be used by operators in the Community scheme as a percentage of the allocation of the allowances to each installation is reduced to no more than 10%.
Article 3
1. The total average annual quantity of allowances of 208.515395 million tonnes, reduced by the sum of the adjustment resulting from any lowering of the number of installations covered and one-fifth of the total number of allowances [the Republic of] Poland decides to issue pursuant to Article 13(2) of the Directive, and further reduced by any difference between the allocations to additional combustion installations and the 6.2884 million tonnes set aside annually for these installations, and increased in respect of emissions of project activities which were already operational in 2005 and resulted in 2005 in emission reductions or limitations in installations falling under the scope of the Directive to the extent that the resulting emission reductions or limitations due to these project activities have been substantiated and verified and exclusively relate to the expansion element of the installations concerned, to be allocated by [the Republic of] Poland according to its [NAP] to installations listed therein and to new entrants 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 or to change the share of the allocation of allowances free of charge in a non‑discriminatory manner within the limits set in Article 10 of the Directive.
3. Any amendments of the [NAP] made to correct the incompatibilities indicated in Article 1 of this Decision but deviating from those referred to in Article 2 must be notified as soon as possible, taking into account the time-scale necessary to carry out the national procedures without undue delay, and require prior acceptance by the Commission pursuant to Article 9(3) of the Directive. Any other amendments of the [NAP], apart from those made to comply with Article 2 of this Decision, are inadmissible.
Article 4
This Decision is addressed to the Republic of Poland.’
Procedure and forms of order sought
6 By application lodged at the Registry of the Court of First Instance on 5 June 2007, the applicants brought the present action.
7 By separate document, lodged at the Court Registry on 12 September 2007, the Commission raised an objection of inadmissibility under Article 114 of the Rules of Procedure of the Court of First Instance. The applicants lodged their observations on that objection on 6 November 2007.
8 The composition of the chambers of the Court of First Instance changed and the Judge-Rapporteur was assigned to the Second Chamber, to which this case was accordingly allocated.
9 By document lodged at the Court Registry on 17 September 2007, Elektrociepłownia ‘Będzin’ S.A., Zespół Elektrociepłowni Bydgoszcz S.A., Zespół Elektrociepłowni Bytom S.A., Elektrociepłownia Białystok S.A., Elektrociepłownia ‘Gorzów S.A.’, Elektrociepłownia Kalisz-Piwonice S.A., Elektrociepłownia ‘Kraków’ S.A., Dalkia Łódź S.A., Dalkia Poznań Zespół Elektrociepłowni S.A., Elektrociepłownia Tychy S.A., Zespół Elektrociepłowni Wrocławskich Kogeneracja S.A., Elektrociepłownie Wybrzeże S.A., Elektrociepłownia Zabrze S.A. and Elektrociepłownia ‘Zielona Góra’ S.A. applied for leave to intervene in support of the form of order sought by the applicants.
10 By document lodged at the Court Registry on 5 November 2007, the applicants requested that, under Article 116(2) of the Rules of Procedure, certain confidential matters in the file should be omitted from the documents communicated to the interveners and produced a non-confidential version of the pleadings or documents in question for communication to the interveners.
11 By order of the President of the Second Chamber of 6 March 2008, Elektrociepłownia ‘Będzin’ and the other companies listed in paragraph 9 above were granted leave to intervene together in this case in support of the form of order sought by the applicants.
12 On 30 April 2008, the interveners lodged their statement in intervention on the objection of inadmissibility raised by the Commission. They did not submit any observations on the applicants’ request for confidential treatment.
13 The applicants, supported by the interveners, claim that the Court should:
– declare the action admissible;
– order the Commission to pay the costs.
14 The Commission contends that the Court should:
– dismiss the action as inadmissible;
– order the applicants to pay the costs.
Law
15 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
16 The Commission contends that the present action is inadmissible on the ground that the contested decision is not of direct and individual concern to the applicants within the meaning of the fourth paragraph of Article 230 EC.
17 In particular, referring inter alia to the order of the Court of First Instance of 25 June 2007 in Case T‑130/06 Drax Power and Others v Commission, (‘the Drax Power order’), the Commission argues that the applicants cannot be directly concerned by the contested decision. It states that, although the factual context underlying the Drax Power order is different from that in the present case, the fact remains that the general principles established in that order relating to the legal framework introduced by the Directive, the role of the Commission and the position of individual operators apply mutatis mutandis to the present case.
18 The applicants note that the contested decision was addressed to the Republic of Poland. Hence, pursuant to the fourth paragraph of Article 230 EC, they submit, as do the interveners, that the contested decision is of direct and individual concern to them and their action should therefore be declared admissible.
19 Regarding the issue of whether the contested decision is of direct concern to them, the applicants, supported in this respect by the interveners, submit, essentially, that by determining the total quantity of allowances for the relevant period and imposing detailed amendments, instead of limiting itself to assessing the NAP in accordance with Article 9(3) of the Directive, the Commission denied the Republic of Poland the margin of discretion, afforded it in principle under the Directive, as regards both determination of the total quantity of allowances and the individual allocation of those allowances, amendment and modification of the NAP, and implementation of the contested decision. That denial is all the clearer since, in this case, the contested decision was adopted outside the time-limit set. Hence, the contested decision applies automatically and, as that is the case, directly affects the applicants’ legal situation.
20 More specifically, first, the applicants submit that, in the light of the specific circumstances of this case, in particular because the contested decision required detailed amendments to be made to the NAP and because the Polish Government has made a separate application for annulment of the contested decision, the case-law to which the Commission refers in support of the objection of inadmissibility it raises is of little relevance in assessing the admissibility of the present action. The same applies as regards the Commission’s reference to the case-law concerning Article 226 EC.
21 Secondly, the applicants state that in the present case the Republic of Poland has been denied its margin of discretion as regards determining the total quantity of allowances. It is bound by the quantity as determined by the Commission in the contested decision. Hence it can no longer increase or even, in the light of Article 1 of the Directive, reduce it. Moreover, the Commission itself, first, imposed detailed amendments, thereby making any possibility of amending the NAP illusory, and, second, expressly prohibited any further amendment. Lastly, the Polish authorities had only a limited time to present arguments to the Commission in support both of the original NAP and of an increase in the total quantity of allowances originally contained in the NAP.
22 Thirdly, the applicants submit that in the present case the Republic of Poland was denied its margin of discretion in the context of the individual allocation of the total quantity of allowances. The reduction in the total quantity of allowances imposed by the Commission will necessarily result in a proportional reduction in the individual allowances granted to particular operators, including therefore the applicants.
23 Fourthly, the applicants submit that in this case the right to be consulted that is afforded to them under the Directive following notification in the second stage of public consultation was purely illusory. As the Commission limited the total quantity of allowances, the Polish authorities were unable to take the applicants’ legitimate requirements into account when setting the level of allowances for individual allocation.
24 Fifthly and lastly, the applicants complain that the Commission did not adopt the contested decision within the strict time-limit laid down by the Directive. As a result, in the present case the denial of the Republic of Poland’s margin of discretion was all the clearer and, moreover, any possibility for the Republic of Poland to amend the NAP and consult the public was illusory.
25 They conclude from this that since the contested decision denied the Republic of Poland its margin of discretion in implementing the NAP that discretion is illusory and hypothetical, so that the contested decision applies automatically and therefore has a direct effect on their legal situation.
Findings of the Court
26 The fourth paragraph of Article 230 EC provides that ‘[a]ny natural or legal person may … institute proceedings against a decision … which, although in the form of … a decision addressed to another person, is of direct and individual concern to the former’.
27 Since the contested decision is addressed to the Republic of Poland, it is necessary to consider whether it is of direct concern to the applicants. In that regard it is appropriate to begin by noting the two cumulative criteria for direct concern within the meaning of the fourth paragraph of Article 230 EC that have been established in settled case-law.
28 First, the measure in question must directly affect the legal situation of the individual. Secondly, the measure must leave no discretion to its addressees 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 (Case C‑386/96 P Dreyfus v Commission [1998] ECR I‑2309, paragraph 43, and Case T‑69/99 DSTV v Commission [2000] ECR II‑4039, paragraph 24). The condition imposed by the second criterion is also fulfilled where the possibility for addressees not to give effect to the measure in question is purely theoretical and their intention to act in conformity with it is not in doubt (Dreyfus v Commission, paragraph 44; see also, to that effect, Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207, paragraphs 8 to 10).
29 At this point it is appropriate to recall the respective roles and powers of the Commission and the Member States under the regime established by the Directive, in particular Articles 9 to 11 thereof. Contrary to what the applicants maintain, all the case-law relating to the Directive must be taken into account. It is true that the decisions of the Community judicature relate to specific factual circumstances. However, it cannot be inferred from this fact that, although the legal provisions at issue in those decisions are identical or at least similar, the principles set out in them are lacking in any relevance. That is so in particular as regards the Drax Power order. The factual context of that case admittedly differs from that of this case. Nevertheless, the provisions of the Directive at issue in that case are identical to those applicable in the present case, which means that the interpretation of those provisions by the Court in that case cannot be disregarded in the assessment of the admissibility of the present action. For the same reasons, the principles established in the order of the Court of First Instance of 1 October 2007 in Case T‑489/04 US Steel Košice v Commission, paragraph 62, cannot be immediately disregarded.
30 Accordingly, it must be borne in mind, first of all, that Article 1 of the Directive states that the fundamental purpose of the Directive is to establish a scheme for greenhouse gas emission allowance trading within the Community. That scheme is based on NAPs developed by the Member States in accordance with the criteria laid down by the Directive. Thus, each Member State was to develop a NAP for the five-year period beginning on 1 January 2008. Under Article 9(1) of the Directive, the NAP was to be published and notified to the Commission and to the other Member States at least 18 months before that date. The NAP was required to state the total quantity of allowances that the Member State ‘intend[ed] to allocate for that period and how it propose[d] to allocate them’.
31 Next, Article 9(3) of the Directive states that the Commission may, within three months of notification of a NAP, reject that NAP, or any aspect thereof, on the basis that the NAP is incompatible with the criteria listed in Annex III or with Article 10 of the Directive. The Directive does not make any other provision for rejection of a NAP. As the Court stated in Case T‑178/05 United Kingdom v Commission [2005] ECR II‑4807, paragraph 55, Article 9(3) of the Directive does not require the adoption of a decision of approval of a notified NAP by the Commission, so that, if it does not rule on the NAP within the time‑limit laid down by that provision, the NAP must be considered to have been approved by it and may not then be amended unless the proposed amendments are first accepted by it in accordance with Article 9(3) of the Directive.
32 Lastly, the definitive decision on the total quantity of allowances to be allocated and the allocation of those allowances to the installations in question must be taken by each Member State pursuant to Article 11(2) of the Directive and on the basis of the NAPs developed pursuant to Article 9 of the Directive.
33 In other words, it is the Member State concerned which is responsible for implementing the NAP and for the allocation of the specific allowances to the individual installations. Under Article 11(2) of the Directive, the allocation of an allowance for an individual installation depends on the decision of the national authority, even if that authority must act in compliance with the NAP as approved by the Commission.
34 The Court therefore finds that it follows from the wording of the Directive and the objectives of the scheme it establishes that it is the decision of the national authorities taken pursuant to Article 11(2) of the Directive which affects the legal situation of the operators by allocating allowances to them (see, by analogy, the Drax Power order, paragraph 53).
35 None of the arguments put forward by the applicants is such as to refute this finding.
36 A preliminary point to note is that the arguments raised by the applicants seek to demonstrate that the second cumulative criterion for direct concern within the meaning of the fourth paragraph of Article 230 EC, referred to in paragraph 28 above, is met, so that the contested decision applies automatically and hence is of direct concern to them within the meaning of that article.
37 First, as to the argument that in the contested decision the Commission imposed on the Republic of Poland the total quantity of allowances to be allocated for the period in question, and the amendments to be made to the NAP in order to make it compatible with the Directive, to the exclusion of any other amendment, so that the Republic of Poland had no margin of discretion at the implementation stage of the NAP, the Court would point out the following.
38 It has already been held that the adoption by a Member State of its definitive decision on the total quantity of allowances to be allocated and the allocation of those allowances to the installations in question, under Article 11(1) of the Directive, is subject to the condition contained in Article 9(3) of the Directive that any amendment proposed to the NAP must be accepted by the Commission (United Kingdom v Commission, cited in paragraph 31 above, paragraph 56). The second sentence of Article 9(3) of the Directive does not lay down any limit to the permissible amendments. Therefore, any amendments, whether proposed by the Member State concerned of its own initiative or necessary to overcome any incompatibility in the NAP raised by the Commission, must be notified to the latter and accepted by it before the NAP as amended can form a valid basis for the definitive decision taken by the Member State under Article 11(2) of the Directive (see, by analogy, United Kingdom v Commission, cited in paragraph 31 above, paragraph 56).
39 Also, the first sentence of Article 9(1) of the Directive provides that, ‘[f]or each period referred to in Article 11(1) and (2), each Member State shall develop a national plan stating the total quantity of allowances that it intends to allocate for that period and how it proposes to allocate them’. It therefore follows from that article that a NAP states the total allowances that the Member State ‘intends’ to allocate for the period in question and how it ‘proposes’ to allocate them. The effect of that wording is that a Member State is not strictly bound by the NAP it has notified to the Commission and retains a margin of discretion in the implementation of the notified NAP, including in the allocation of individual emission allowances. Thus, the ultimate implementation of the NAP is always contingent on the adoption of a decision by the national authorities.
40 It should be noted in that regard that Article 176 EC provides that measures adopted pursuant to Article 175 EC, such as the Directive in the present case, are not to prevent any Member State from maintaining or introducing more stringent protective measures provided that such measures are compatible with the EC Treaty and are notified to the Commission. Given that the main purpose of the regime established by the Directive is to reduce greenhouse gas emissions (see Article 1 of the Directive and recitals 1 to 5 in its preamble), the Member State always remains free to make do with a lesser allocation of allowances, provided that such an allocation respects the conditions laid down by the Directive (Drax Power order, paragraphs 62 and 63).
41 The Court therefore considers that it follows both from the wording of the Directive and from the general structure and objectives of the scheme which it establishes (i) that a Member State remains entitled to propose amendments to its NAP after the NAP has been notified to the Commission, until such time as it has adopted its decision pursuant to Article 11(2) of the Directive (see, to that effect and by analogy, United Kingdom v Commission, cited in paragraph 31 above, paragraphs 61 and 63), and (ii) that there is nothing in certain circumstances to prevent such amendments from being intended to increase or reduce the total quantity of allowances to be allocated that is stated in the NAP initially notified. In the present case, contrary to what is claimed by the applicants, since the NAP was notified on 30 June 2006 and in any event the contested decision was adopted on 26 March 2007, it cannot reasonably be considered that the Polish authorities had a limited period within which to submit to the Commission their arguments in support both of the original NAP and of an increase in the total quantity of allowances initially contained in the NAP.
42 It follows from the foregoing that the applicants’ argument alleging that, in the contested decision, the Commission laid down (i) the total quantity of allowances to be allocated for the period in question, and (ii) the amendments to be made to the NAP, to the exclusion of any other amendment, so that the Republic of Poland had no margin of discretion at the implementation stage of the NAP, must be rejected as unfounded.
43 Secondly, as regards the arguments alleging (i) that the Republic of Poland was denied its margin of discretion in the context of the individual allocation of the total quantity of allowances and (ii) that in the circumstances of this case the consultation procedure afforded under the Directive following notification was illusory, the Court finds that such a line of argument does not demonstrate that the contested decision is of direct concern to the applicants.
44 First, neither the Directive nor the contested decision effects an automatic allocation of the total quantity of allowances amongst the individual installations, in the sense that the reduction of 76.132937 MteqCO2 in the total annual quantity of emission allowances provided for by the NAP has taken the form of specific percentages or quantities of allowances allocated to the various individual Polish installations (see, to that effect, US Steel Košice v Commission, cited in paragraph 29 above, paragraph 62).
45 It should be noted first of all in this regard that, in the scheme established by the Directive, under which it is for the Member States to allocate the allowances amongst the installations in question (see paragraph 30 above), the direct and definitive determination of the rights and obligations of the operators of those installations can result only from the decision by the Member State adopted pursuant to Article 11(2) of the Directive. Only a decision by the competent authority in Poland can amend the individual CO2 allowance initially envisaged by Poland for the applicants. Consequently, the contested decision did not bring about any change whatsoever in the applicants’ existing rights or legal situation.
46 Such a finding cannot be called into question on the ground that the Republic of Poland has brought an action for annulment of the contested decision. Suffice it to state that in the contested decision the Commission does not adopt a position on the share of the total quantity of allowances which the Republic of Poland intended to allocate to the applicants. Consequently, no conclusion as to the final individual allocation decision to be taken by the Polish authorities pursuant to Article 11(2) of the Directive may be drawn from the fact that the addressee of the contested decision, namely the Republic of Poland, has brought such an action.
47 Furthermore, it should be noted that it is expressly stated in Article 3(2) and (3) of the contested decision that the Polish authorities were entitled to amend the NAP, provided the limits on the total quantity of allowances to be allocated to individual installations were complied with and, in the case of certain amendments, they were notified to the Commission for prior acceptance. Legally then, there would have been nothing to prevent the Polish authorities, in certain circumstances, from granting a request from the applicants for the same quantity of individual allowances as that allocated to them on the basis of the initial NAP (see, to that effect, US Steel Košice v Commission, cited in paragraph 29 above, paragraph 63).
48 This is the case, in respect of the allowances to be allocated individually to each installation, where, before the adoption of a definitive decision pursuant to Article 11(2) of the Directive, the public consultation referred to in that article discloses new information concerning an installation and, in the light of that information, the quantity of individual allowances to be allocated to that installation must accordingly be maintained or be changed in proportions differing from, or even in a direction opposite to, the amendment confirmed by the contested decision in regard to the total quantity of allowances to be allocated (see, to that effect and by analogy, United Kingdom v Commission, cited in paragraph 31 above, paragraph 58). Lastly, it should be borne in mind that that consultation would be meaningless and public comment would be purely academic if the amendments to the NAP which could be proposed after a decision by the Commission taken pursuant to Article 9(3) of the Directive were limited to those envisaged by the Commission (see, by analogy, United Kingdom v Commission, cited in paragraph 31 above, paragraph 57).
49 It follows that, as at the date when the present action was brought, the fear expressed by the applicants that the size of the reduction, as approved by the contested decision, in the total quantity of allowances would necessarily lead to a proportional reduction in the amount of their individual allowances refers to an entirely hypothetical event.
50 For the sake of completeness, even if that fear expressed by the applicants might have proved well founded, in that the Polish authorities did in fact allocate them a quantity of individual allowances lower than that provided for in the initial NAP, this would not, however, result directly from the contested decision, but from the exercise of the available discretion by the Polish Government, which was not required to reduce the quantity of individual allowances it intended to allocate to the applicants, particularly not in proportions confirmed in the contested decision (see, to that effect, US Steel Košice v Commission, cited in paragraph 29 above, paragraph 64).
51 Third and lastly, it is necessary to reject the applicants’ argument that the Commission’s failure to adopt the contested decision within the strict time-limit set by the Directive means that in the present case (i) the denial of the Republic of Poland’s margin of discretion was all the clearer and (ii) any possibility for the Republic of Poland to amend the NAP and consult the public was illusory.
52 While there is no need, at the stage of examining the admissibility of the present action, to rule on the justification for the Commission’s alleged deferral of adoption of the contested decision, it should be noted first of all that, as is clear from the case-law cited in paragraph 41 above, there was nothing to prevent the Republic of Poland proposing amendments to its NAP after it had been notified to the Commission, at least up until the deadline of 31 December 2006 laid down in Article 11(2) of the Directive for deciding upon the total quantity of allowances to be allocated and initiating the process for the allocation of those allowances to the operator of each installation.
53 Furthermore, after that date, since the initiation of that process involved, under Article 11(2) of the Directive, taking into account comments from the public, the Republic of Poland retained in any event some discretion as to the quantity of allowances to be allocated individually to the installations concerned. As noted in paragraph 48 above, that consultation would be meaningless and public comment would be purely academic if the amendments to the NAP which could be proposed after a decision by the Commission taken pursuant to Article 9(3) of the Directive were limited to those envisaged by the Commission.
54 It follows from the foregoing that all the arguments raised by the applicants, supported in that regard by the interveners, must be rejected. They are therefore wrong in submitting that the contested decision applies automatically and so is of direct concern to them within the meaning of the fourth paragraph of Article 230 EC.
55 Consequently, the action must be dismissed in its entirety as inadmissible, without it being necessary to rule on the other grounds of inadmissibility put forward by the Commission.
Costs
56 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 applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
57 In accordance with the third subparagraph of Article 87(4) the interveners are to bear their own costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Second Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. BOT Elektrownia Bełchatów S.A., BOT Elektrownia Turów S.A., BOT Elektrownia Opole S.A., Elektrownia ‘Kozienice’ S.A., Elektrownia Połaniec S.A. – Grupa Electrabel Polska, Elektrownia ‘Rybnik’ S.A., Elektrownia Skawina S.A., Elektrownia ‘Stalowa Wola’ S.A., Południowy Koncern Energetyczny S.A., Zespół Elektrowni Dolna Odra S.A., Zespół Elektrowni Ostrołęka S.A. and Zespół Elektrowni Pątnów-Adamów-Konin S.A. shall bear their own costs and pay those incurred by the Commission.
3. Elektrociepłownia ‘Będzin’ S.A., Zespół Elektrociepłowni Bydgoszcz S.A., Zespół Elektrociepłowni Bytom S.A., Elektrociepłownia Białystok S.A., Elektrociepłownia ‘Gorzów S.A.’, Elektrociepłownia Kalisz-Piwonice S.A., Elektrociepłownia ‘Kraków’ S.A., Dalkia Łódź S.A., Dalkia Poznań Zespół Elektrociepłowni S.A., Elektrociepłownia Tychy S.A., Zespół Elektrociepłowni Wrocławskich Kogeneracja S.A., Elektrociepłownie Wybrzeże S.A., Elektrociepłownia Zabrze S.A. and Elektrociepłownia ‘Zielona Góra’ S.A. shall bear their own costs.
Luxembourg, 20 October 2008.