ORDER OF THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF FIRST INSTANCE
6 March 2008(*)
(Intervention – Interest in the result of the case – Allowed)
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,
v
Commission of the European Communities, represented by U. Wölker and D. Lawunmi, acting as Agents,
defendant,
ACTION 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 PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
1 By application lodged at the Registry of the Court of First Instance on 5 June 2007, the applicants brought an action, under the fourth paragraph of Article 230 EC, 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 (‘the NAP’), 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), finding incompatibility with certain of the criteria listed in Annex III to that directive and reducing by 76.132937 million tonnes of carbon dioxide (CO2) equivalent the total annual quantity of emission allowances provided for in the notified NAP.
2 By document lodged at the Registry of the Court of First Instance on 17 September 2007, Elektrociepłownia ‘Będzin’ S.A., established in Będzin (Poland), and 13 other electricity and heat production companies listed in the annex (‘the applicants for leave to intervene’), all represented by B. Krużewski, M. Ciemiński, J. Młot-Schönthaler, N. Dodoo and S. Boullart, lawyers, applied to intervene in support of the form of order sought by the applicants.
3 That application to intervene was served on the parties in accordance with Article 116(1) of the Rules of Procedure of the Court of First Instance. The Commission and the applicants submitted their observations on 25 October and 5 November 2007 respectively. Unlike the applicants, the Commission contended that the application to intervene should be refused. On that basis, it submitted essentially that, since in the light of settled case‑law the action brought by the applicants should be declared inadmissible by reason of lack of standing to institute proceedings under Article 230 EC, the applicants for leave to intervene should, for the same reason, be declared not to have standing to intervene.
4 Under the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the procedure before the Court of First Instance in accordance with the first paragraph of Article 53 of that Statute, any person establishing an interest in the result of a case, save in cases between Member States, between institutions of the Communities or between Member States and institutions of the Communities, has the right to intervene in that case. In accordance with the fourth paragraph of Article 40 of the Statute of the Court, an application for leave to intervene is to be limited to supporting the form of order sought by one of the parties.
5 It has consistently been held that the concept of an interest in the result of a case, within the meaning of the second paragraph of Article 40 of the Statute of the Court, must be defined in the light of the precise subject‑matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought (order in Case T‑15/02 BASF v Commission [2003] ECR II‑213, paragraph 26; see also to that effect order in Joined Cases 116/77, 124/77 and 143/77 Amylum and Others v Council and Commission [1978] ECR 893, paragraphs 7 and 9).
6 As a preliminary point, it should be observed that the Court has held that there is no necessary link between the right to intervene and the possibility of bringing an action. According to the second paragraph of Article 40 of the Statute of the Court, the right of individuals to intervene is conditional merely upon ‘an interest in the result of any case’ before the Court, whereas the admissibility of an action for annulment brought by individuals is subject to the condition that they must be the addressees of the measure which they seek to have annulled or at least that the measure should be of direct and individual concern to them (Case 302/87 Parliament v Council [1988] ECR 5615, paragraph 18). Therefore, the Commission is wrong to argue, in essence, that insofar as the action brought by the applicants should be declared inadmissible by reason of lack of standing to institute proceedings under Article 230 EC, the applicants for leave to intervene should, for the same reason, be declared not to have standing to intervene.
7 It must thus be determined whether the applicants for leave to intervene have, in this case, a sufficient interest for the purpose of the abovementioned case‑law to intervene in support of the form of order sought by the applicants, in the proceedings between those applicants and the Commission.
8 First, in accordance with the provisions of Article 2 of Directive 2003/87 and Annexes I and II thereto, combustion installations producing more than 20 megawatts, resulting in CO2 emissions, fall within the scope of that directive. In the present case, it is apparent from the documents in the case‑file that the applicants for leave to intervene are companies operating in Poland in the electricity and heat production sectors and that they fulfil the said conditions for the application of Directive 2003/87.
9 Second, as submitted by the applicants for leave to intervene, their combined market shares in 2006 represented 7.9% of national electricity production and 18.2% of national heat production, in other words, a significant share. Likewise, the documents in the case‑file show that the installations of the applicants for leave to intervene also contribute significantly to CO2 emissions in Poland. In that respect, they state that the total quantity of CO2 emission allowances, which had been allocated to them under the NAP notified by the Republic of Poland for the period from 2005 to 2007, represented 13.96% of the total allowances allocated under that plan.
10 Third, as stated in Decision C(2007) 1295, the Commission specifically decided to reduce by 76.132937 million tonnes CO2 equivalent the total annual amount of emission allowances provided for in the NAP notified by the Republic of Poland. According to the applicants for leave to intervene, the possibility cannot be ruled out that that decision may lead to a reduction in the allowances that will be allocated to them individually by the competent authority in Poland.
11 Without prejudice, at this stage, to the admissibility of the action brought by the applicants, where the applicants for leave to intervene wish to support the form of order they seek, the Court finds that the applicants for leave to intervene have established an interest in the result of the case. Such a reduction in the allowances that would be allocated to them individually would affect part of their activities in the electricity and heat production sectors, and could adversely affect their income (see, to that effect, the order of the President of the First Chamber in Case T‑138/98 ACAV and Others v Council [1999] ECR II‑1797, paragraphs 16 and 17).
12 It follows from all the preceding considerations that, without it being necessary to decide on the validity of the argument of the applicants for leave to intervene relating to their active participation, whether direct or indirect, in the drawing-up and development of the NAP in question, they had demonstrated that they have a direct, existing interest in annulment of Decision C(2007) 1295. Accordingly, their application to intervene in support of the form of order sought by the applicants must be allowed.
13 As the application to intervene was brought in accordance with Article 115 of the Rules of Procedure and the applicants for leave to intervene have established their interest in the result of the case, the application must be granted, in accordance with the second paragraph of Article 40 of the Statute of the Court. As the notice in the Official Journal of the European Union referred to in Article 24(6) of the Rules of Procedure was published on 4 August 2007, the application to intervene was submitted within the period prescribed in Article 115(1) of those Rules and the rights of the interveners will be those laid down in Article 116(2) to (4) of those Rules.
14 The applicants requested that, in accordance with Article 116(2) of the Rules of Procedure, certain confidential matters in the file be omitted from the documents communicated to the interveners and produced, for the purposes of that communication, a non-confidential version of the pleadings or documents in question.
15 At this stage, the communication to the interveners of the procedural documents served and, where appropriate, to be served on the parties must therefore be limited to a non‑confidential version. A decision on the merits of the request for confidentiality will, if necessary, be taken in due course in the light of the objections or observations which may be submitted on the subject.
On those grounds,
THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF FIRST INSTANCE
hereby orders:
1. Elektrociepłownia ‘Będzin’ S.A. and the 13 other companies listed in the annex are granted leave to intervene in Case T‑208/07 in support of the form of order sought by the applicants.
2. The Registrar shall send to the interveners a non‑confidential version of every document served on the parties.
3. A period shall be prescribed within which the interveners may submit any observations on the application for confidential treatment. The decision on the merits of that application is reserved.
4. A period shall be prescribed within which the interveners may submit their statement in intervention, without prejudice to the possibility of supplementing it, if necessary, in due course, following a decision on the merits of the application for confidential treatment.
5. The costs are reserved.
Luxembourg, 6 March 2008
ANNEX
Zespół Elektrociepłowni Bydgoszcz S.A., established in Polotne 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 Krakow (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).