ORDER OF THE GENERAL COURT (Sixth Chamber)
29 June 2015 (*)
(Environment — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — Decision granting the Czech Republic an option for transitional free allocation for the modernisation of electricity generation — Request for internal review of that decision — Lack of measure of individual scope — Commission decision declaring the request for a review inadmissible — Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)
In Case T‑19/13,
Frank Bold Society, formerly Ekologický právní servis, established in Brno (Czech Republic), represented by P. Černý, lawyer,
applicant,
v
European Commission, represented initially by P. Oliver and L. Pignataro-Nolin, and subsequently by L. Pignataro-Nolin and J. Tomkin, acting as Agents,
defendant,
supported by
Czech Republic, represented by M. Smolek, T. Müller and D. Hadroušek, acting as Agents,
intervener,
APPLICATION for annulment of (i) Commission Decision C(2012) 8382 final of 12 November 2012 rejecting as inadmissible the request for internal review of Commission decision C(2012) 4576 final of 6 July 2012 granting the Czech Republic an option for transitional free allocation for the modernisation of electricity generation, and (ii) the latter decision,
THE GENERAL COURT (Sixth Chamber),
composed of S. Frimodt Nielsen, President, F. Dehousse and A.M. Collins (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Legal context
1 Article 2(1)(g) of Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13) defines an ‘administrative act’ as ‘any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects’.
2 Article 10(1) of Regulation No 1367/2006 provides:
‘Any non-governmental organisation which meets the criteria set out in Article 11 is entitled to make a request for internal review to the Community institution or body that has adopted an administrative act under environmental law or, in case of an alleged administrative omission, should have adopted such an act.’
3 Article 10c 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), as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 (OJ 2009 L 140, p. 63), governs the ‘[o]ption for transitional free allocation for the modernisation of electricity generation’. It provides as follows:
‘1. By derogation from Article 10a(1) to (5), Member States may give a transitional free allocation to installations for electricity production in operation by 31 December 2008 or to installations for electricity production for which the investment process was physically initiated by the same date, provided that one of the following conditions is met:
(a) in 2007, the national electricity network was not directly or indirectly connected to the network interconnected system operated by the Union for the Coordination of Transmission of Electricity (UCTE);
(b) in 2007, the national electricity network was only directly or indirectly connected to the network operated by UCTE through a single line with a capacity of less than 400 MW; or
(c) in 2006, more than 30% of electricity was produced from a single fossil fuel, and the GDP per capita at market price did not exceed 50% of the average GDP per capita at market price of the Community.
The Member State concerned shall submit to the Commission a national plan that provides for investments in retrofitting and upgrading of the infrastructure and clean technologies. The national plan shall also provide for the diversification of their energy mix and sources of supply for an amount equivalent, to the extent possible, to the market value of the free allocation with respect to the intended investments, while taking into account the need to limit as far as possible directly linked price increases. The Member State concerned shall submit to the Commission, every year, a report on investments made in upgrading infrastructure and clean technologies. Investment undertaken from 25 June 2009 may be counted for this purpose.
2. Transitional free allocations shall be deducted from the quantity of allowances that the respective Member State would otherwise auction pursuant to Article 10(2). In 2013, the total transitional free allocation shall not exceed 70% of the annual average verified emissions in 2005-2007 from such electricity generators for the amount corresponding to the gross final national consumption of the Member State concerned and shall gradually decrease, resulting in no free allocation in 2020. For those Member States which did not participate in the Community scheme in 2005, the relevant emissions shall be calculated using their verified Community scheme emissions under the Community scheme in 2007.
The Member State concerned may determine that the allowances allocated pursuant to this Article may only be used by the operator of the installation concerned for surrendering allowances pursuant to Article 12(3) with respect to emissions of the same installation during the year for which the allowances are allocated.
3. Allocations to operators shall be based on the allocation under the verified emissions in 2005-2007 or an ex-ante efficiency benchmark based on the weighted average of emission levels of most greenhouse gas efficient electricity production covered by the Community scheme for installations using different fuels. The weighting may reflect the shares of the different fuels in electricity production in the Member State concerned. The Commission shall, in accordance with the regulatory procedure referred to in Article 23(2), provide guidance to ensure that the allocation methodology avoids undue distortions of competition and minimises negative impacts on the incentives to reduce emissions.
4. Any Member State applying this Article shall require benefiting electricity generators and network operators to report every 12 months on the implementation of their investments referred to in the national plan. Member States shall report on this to the Commission and shall make such reports public.
5. Any Member State that intends to allocate allowances on the basis of this Article shall, by 30 September 2011, submit to the Commission an application containing the proposed allocation methodology and individual allocations. An application shall contain:
(a) evidence that the Member State meets at least one of the conditions set out in paragraph 1;
(b) a list of the installations covered by the application and the amount of allowances to be allocated to each installation in accordance with paragraph 3 and the Commission guidance;
(c) the national plan referred to in the second subparagraph of paragraph 1;
(d) monitoring and enforcement provisions with respect to the intended investments pursuant to the national plan;
(e) information showing that the allocations do not create undue distortions of competition.
6. The Commission shall assess the application taking into account the elements set out in paragraph 5 and may reject the application, or any aspect thereof, within six months of receiving the relevant information.
7. Two years before the end of the period during which a Member State may give transitional free allocation to installations for electricity production in operation by 31 December 2008, the Commission shall assess the progress made in the implementation of the national plan. If the Commission considers, on request of the Member State concerned, that there is a need for a possible extension of that period, it may submit to the European Parliament and to the Council appropriate proposals, including the conditions that would have to be met in the case of an extension of that period.’
4 According to paragraph 25 of the Communication from the Commission entitled Guidance document on the optional application of Article 10c of Directive 2003/87 (OJ 2011 C 99, p. 9) (‘the guidance document’):
‘When assessing the application submitted pursuant to Article 10c(5) of Directive [2003/87], the Commission will analyse to which extent the investments identified comply with these principles. ...’
Background to the dispute
5 On 29 September 2011, the Czech Republic submitted an application to the European Commission under Article 10c(5) of Directive 2003/87. That application was required to contain, inter alia, evidence that the Member State met the applicable conditions, the list of the installations covered by the application and the allowances to be allocated to each installation, the national plan, and the provisions for the monitoring and enforcement of the planned investments.
6 On 6 July 2012, the Commission adopted Decision C(2012) 4576 final granting the Czech Republic an option for transitional free allocation for the modernisation of electricity generation, in which it raised no objection to the application submitted by the Czech Republic for the period from 2013 to 2019 (‘the decision relating to the transitional free allocation’).
7 On 16 August 2012, Ekologický právní servis, now Frank Bold Society, the applicant, a non-governmental organisation for the protection of the environment, submitted a request to the Commission under Article 10 of Regulation No 1367/2006 for an internal review of the decision relating to the transitional free allocation.
8 On 12 November 2012, the Commission adopted Decision C(2012) 8382 final, rejecting the request for internal review of the decision relating to the transitional free allocation (‘the decision rejecting the request for internal review’) on the ground that it was inadmissible. In particular, the Commission relied on the fact that the decision relating to the transitional free allocation was not a measure of individual scope and, therefore, was not an administrative act open to internal review.
Procedure and forms of order sought
9 By application lodged at the Court Registry on 11 January 2013, the applicant brought the present action, in which it claims that the Court should:
– annul the decision relating to the transitional free allocation;
– annul the decision rejecting the request for internal review;
– order the Commission to pay the costs.
10 The Commission contends that the Court should:
– dismiss the action brought against the decision relating to the transitional free allocation as inadmissible;
– dismiss the action brought against the decision rejecting the request for internal review as unfounded;
– order the applicant to pay the costs.
11 The Czech Republic sought leave to intervene in support of the form of order sought by the Commission. The Court, by order of 30 May 2013, granted leave to intervene.
12 The Czech Republic submits that the Court should:
– dismiss the action brought against the decision relating to the transitional free allocation as inadmissible;
– dismiss the action brought against the decision rejecting the request for internal review as unfounded.
13 In reply to a written question from the Court, on 27 and 30 March 2015, the parties lodged their observations on the consequences for the present case of the judgments of 13 January 2015 in Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht (C‑401/12 P to C‑403/12 P, ECR, EU:C:2015:4) and Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe (C‑404/12 P and C‑405/12 P, ECR, EU:C:2015:5).
Law
14 Under Article 111 of the Rules of Procedure of the General Court, where an action is manifestly inadmissible or where it is manifestly lacking any foundation in law, the Court may, without taking further steps in the proceedings, give a decision on the action by reasoned order.
15 In this instance, the Court considers that it has sufficient information from the documents in the file and has decided, pursuant to that article, to give a decision without taking further steps in the proceedings.
The action for annulment of the decision relating to the transitional free allocation
Arguments of the parties
16 The Commission submits that the action for annulment of the decision relating to the transitional free allocation is inadmissible. In particular, first, the Commission argues that the applicant is not directly and individually concerned by the decision relating to the transitional free allocation, within the meaning of the fourth paragraph of Article 263 TFEU. Secondly, it claims that the action is time-barred.
17 The Czech Republic supports, in essence, the Commission’s position.
18 The applicant, however, argues that it has standing to bring proceedings before the Court with respect to the decision relating to the transitional free allocation. However, it does not submit any argument challenging the plea of inadmissibility based on the action being time-barred.
Findings of the Court
19 Under the sixth paragraph of Article 263 TFEU, proceedings for annulment must be instituted within two months of the publication of the measure, or of its notification to the applicant or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.
20 In the present case, it is not disputed that the decision relating to the transitional free allocation was adopted on 6 July 2012. Notice of that decision, which was sent to the Czech Republic, was not given to the applicant and the decision was not published in the Official Journal of the European Union. According to the applicant, the Commission published a press release regarding that decision on 6 July 2012 and made the decision available on the Internet on 17 July 2012. Therefore, it must be held that the applicant was informed of the decision relating to the transitional free allocation between 17 July 2012 and, at the latest, 16 August 2012, when it introduced its request for a review.
21 Consequently, having been brought out of time, the action for annulment, inasmuch as it is brought against the decision relating to the transitional free allocation, is manifestly inadmissible.
The action for annulment of the decision rejecting the request for internal review
22 In support of its action for annulment of the decision rejecting the request for internal review, the applicant relies on two pleas in law, alleging, first, breach of Regulation No 1367/2006, and, second, breach of Directive 2003/87 and of the guidance document.
23 The Commission, supported by the Czech Republic, does not dispute the admissibility of the action brought against the decision rejecting the request for a review, but considers that the action for annulment of that decision must be dismissed as unfounded.
The first plea in law, alleging breach of Regulation No 1367/2006
– Arguments of the parties
24 With respect to the first plea, the applicant submits that the Commission incorrectly held that the request for a review was inadmissible and maintains that the Commission was therefore required to review the decision relating to the transitional free allocation. In particular, it argues that the decision relating to the transitional free allocation must be regarded as an ‘administrative act’ within the meaning of Article 2(1)(g) of Regulation No 1367/2006, read in conjunction with Article 10 of that regulation.
25 In that context, the applicant submits that the decision relating to the transitional free allocation was adopted under environmental law by the Commission, that it has legally binding and external effects and that it is a measure of individual scope.
26 On the last point, it argues that the allocations of free allowances will affect the operators and installations that are specifically listed in the national plan approved by the Commission. Accordingly, there is a specifically defined group of beneficiary entities and, therefore, the measure cannot be considered as having an impact on addressees defined generally or in the abstract.
27 It adds that, under Article 10c of Directive 2003/87, the list of installations eligible for the transitional free allocation was set from the time of the adoption of the decision relating to the transitional free allocation and that it was no longer possible to extend the group of beneficiaries subsequently.
28 The applicant also relies on the case-law pertaining to acts containing a bundle of individual decisions.
29 Furthermore, the applicant submits that the transitional free allocation constitutes State aid which must be notified to and approved by the Commission. According to the applicant, if the same application made under Article 10c of Directive 2003/87, together with the national plan approved by the Commission, were notified as a State aid, it could not be regarded as a measure of general application producing legal effects for categories of persons contemplated generally or in the abstract.
30 According to the applicant, the ‘Fost Plus case-law’ is not applicable in the present case, since the decision on the transitional free allocation is not a measure of general application (order of 16 February 2005 in Fost Plus v Commission, T‑142/03, ECR, EU:T:2005:51).
31 Alternatively, in the event that the Court should conclude that the decision relating to the transitional free allocation is not a measure of individual application, the applicant refers to the case-law in which the General Court held that Article 10 of Regulation No 1367/2006 was contrary to Article 9(3) of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, signed in Aarhus on 25 June 1998 (‘the Aarhus convention’), in that it restricts the concept of acts which are open to challenge in review proceedings to administrative acts which are defined as measures of individual application (judgments of 14 June 2012 in Stichting Natuur en Milieu and Pesticide Action Network Europe v Commission, T‑338/08, ECR, EU:T:2012:300, and Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, T‑396/09, ECR, EU:T:2012:301).
32 The Commission denies having erred in law in stating, in the decision rejecting the request for internal review, that the decision relating to the transitional free allocation was not a measure of individual application.
– Findings of the Court
33 The arguments put forward by the applicant in support of its first plea in law can be divided, in essence, into two parts, namely those seeking to prove that the decision relating to the transitional free allocation was not of general application and could therefore be subject to a review, and those according to which Regulation No 1367/2006 is contrary to the Aarhus Convention.
34 As regards the first part of the first plea in law, as a preliminary point, it should be recalled that the Commission rejected as inadmissible the request for internal review of the decision relating to the transitional free allocation, on the ground that, since that decision was not a measure of individual scope, the request for internal review did not relate to an administrative act within the meaning of Article 10(1) of Regulation No 1367/2006, read together with Article 2(1)(g) of that regulation. The applicant disputes that assessment.
35 In order to establish whether the Commission was correct in holding that the request for internal review was inadmissible, it is therefore appropriate to examine whether the decision relating to the transitional free allocation is a measure of individual scope.
36 According to the case-law, in order to determine the scope of a measure, it is appropriate to consider whether the measure in question concerns specific subjects individually. In that regard, the Courts of the European Union should not look merely at the official name of the measure but should first take account of its purpose and its content (judgment of 14 December 1962 in Confédération nationale des producteurs de fruits et légumes and Others v Council, 16/62 and 17/62, EU:C:1962:47, ECR p. 471, 478). Accordingly, a decision which is addressed to a Member State is regarded as being of general application if it applies to objectively determined situations and entails legal effects for categories of persons envisaged generally and in the abstract (judgments in Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, cited in paragraph 31 above, EU:T:2012:301, paragraph 26, and Stichting Natuur en Milieu and Pesticide Action Network Europe v Commission, cited in paragraph 31 above, EU:T:2012:300, paragraph 30; see also, on the scheme established by Directive 2003/87, order of 8 April 2008 in Saint-Gobain Glass Deutschland v Commission, C‑503/07 P, ECR, EU:C:2008:207, paragraph 71).
37 Where an instrument lays down limitations, or allows derogations, which are temporary in nature or territorial in scope, they form an integral part of the body of provisions within which they are found and, in the absence of any misuse of powers, they are of the same general nature as those provisions (order of 12 March 2007 in Regione Autonoma Friuli-Venezia Giulia v Commission, T‑417/04, ECR, EU:T:2007:82, paragraph 49; judgments of 1 July 2008 in Região autónoma dos Açores v Council, T‑37/04, EU:T:2008:236, paragraph 33, and Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, cited in paragraph 31 above, EU:T:2012:301, paragraph 27).
38 Derogations from the body of general rules which take the form of confirmatory decisions adopted by the Commission under a provision of a directive partake of the general nature of that directive, given that they are addressed in abstract terms to undefined classes of persons and applied to objectively defined situations (order in Fost Plus v Commission, cited in paragraph 30 above, EU:T:2005:51, paragraph 47, and judgment in Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, cited in paragraph 31 above, EU:T:2012:301, paragraph 28).
39 In the light of those considerations, first, it should be noted that, by the decision relating to the transitional free allocation, the Commission, after examination of the application submitted by the Czech Republic, decided not to raise any objections to the national plan relating to the installations for electricity production submitted under Article 10c of Directive 2003/87.
40 In that decision, the Commission found that the Czech Republic satisfied one of the conditions for applying the derogation provided for in Article 10c(1) of Directive 2003/87. It also found that the 82 installations eligible for the receipt of free allowances, set out in the list submitted by the Czech Republic, met the objective condition attached to that provision, which was that they were in operation on 31 December 2008 or at least that the investment process was physically initiated on that date. In view of that finding, the Commission concluded that those installations were eligible under Article 10c of Directive 2003/87 to receive free allocation transitionally.
41 Therefore, the decision relating to the transitional free allocation authorises the Czech Republic, if it so wishes, to derogate transitionally from the principle of full auctioning of greenhouse gas emission allowances in the electricity generation sector, which should have been applicable from 2013.
42 It should further be stated that the decision relating to the transitional free allocation does not allocate any allowances to the facilities in question. Allowances are allocated by the State subsequently, according to the allocation method set out in the application, if the planned investments are made, which is not necessarily always the case. In reality, according to the Commission, Member States will tend to notify investments in excess of their potential free allocation in order to avoid wasting free allowances if an investment initially planned falls through, which the Czech Republic has done in the present case. From that point of view, the list of investments is indicative. Finally, the decision relating to the transitional free allocation includes monitoring and enforcement provisions by the national authorities relating to the planned investments.
43 Therefore, Article 1 of the decision relating to the transitional free allocation relates generally to all operators of installations covered by the rules set out in the national plan which are active in the electricity generation sector.
44 It should be noted that a Commission decision partially rejecting a national plan submitted under Article 9 of Directive 2003/87 is a measure of general application (see, to that effect, orders of 11 September 2007 in Fels-Werke and Others v Commission, T‑28/07, EU:T:2007:251, paragraph 59, and Saint-Gobain Glass Deutschland v Commission, cited in paragraph 36 above, EU:C:2008:207, paragraph 77). In particular, the Court of Justice has held that the fact that the national plan submitted by the Member State to the Commission must contain a list of the installations covered by the emission trading scheme and a statement of the allowances which that State intends to grant to those installations does not make it possible to conclude that the decision is of individual scope (see, to that effect, order in Saint-Gobain Glass Deutschland v Commission, cited in paragraph 36 above, EU:C:2008:207, paragraph 73).
45 In the light of the foregoing, the decision relating to the transitional free allocation must be considered, by its purpose and content, as a measure of general application, not of individual scope within the meaning of Article 2(1)(g) of Regulation No 1367/2006. Therefore, the Commission was correct in rejecting the request for a review as inadmissible under Article 10 of Regulation No 1367/2006.
46 None of the arguments put forward by the applicant is such as to invalidate that conclusion.
47 As regards the argument that there is a specifically defined group of beneficiary entities, given that the list of installations eligible for the grant of a transitional allocation was set, it should be noted that those installations were covered by the Czech Republic’s application because they belonged to the group objectively designated by Article 10c(1) of Directive 2003/87, namely the installations for electricity production in operation by 31 December 2008, at the latest, or the installations for electricity production for which the investment process was physically initiated by the same date.
48 Contrary to what the applicant submits, the decision relating to the transitional free allocation cannot be regarded as a bundle of individual decisions within the meaning of the case-law. It must be stated that the element traditionally noted by that case-law, which is that the measure was adopted in order to respond to individual claims, is lacking in the instant case (judgment of 13 May 1971 in International Fruit Company and Others v Commission, 41/70 to 44/70, ECR, EU:C:1971:53, paragraphs 16 to 21; order in Saint-Gobain Glass Deutschland v Commission, cited in paragraph 36 above, EU:C:2008:207, paragraph 73; see also, with respect to the scheme established by Directive 2003/87, judgment of 26 September 2014 in Raffinerie Heide v Commission, T‑631/13, EU:T:2014:830, paragraph 35).
49 The applicant submits that the order in Fost Plus v Commission, cited in paragraph 30 above (EU:T:2005:51, paragraph 47), according to which a decision addressed to Member States setting out a derogation from the general body of rules partakes of the general nature of the directive, given that it is addressed in abstract terms to undefined classes of persons and applies to objectively defined situations, is not applicable, since, according to the applicant, the decision relating to the transitional free allocation is not of general application. However, and contrary to what the applicant submits, the situation here is similar to that which gave rise to the order in Fost Plus, cited in paragraph 30 above (EU:T:2005:51). Whereas Article 10(1) of Directive 2003/87 lays down the principle that all allowances should be auctioned, Article 10c of the directive provides for the possibility of a derogation to that rule. Accordingly, the decision relating to the transitional free allocation, authorising the derogation after verification that the conditions of Article 10c are fulfilled, shares the general nature of the rule set out in Article 10(1) de la Directive 2003/87, in accordance with the order in Fost Plus, cited in paragraph 30 above (EU:T:2005:51).
50 With respect to the applicant’s argument that the transitional free allocation constitutes State aid that must be notified to and approved by the Commission, and therefore cannot be considered a measure of general application, it should be noted that the decision relating to the transitional free allocation indicates that it is without prejudice to the notification and possible decision of the Commission under the rules on State aid. Therefore, without prejudice to the scope of a possible decision taken under the rules on State aid, the decision relating to the transitional free allocation, adopted in the context of the scheme for greenhouse gas emission allowance trading, must, for the reasons explained above, be regarded as a measure of general application in the context of that scheme. Furthermore, Article 2(1)(g) of Regulation No 1367/2006 defines the concept of administrative act as ‘any measure of individual scope under environmental law ...’. Consequently, for the purposes of that provision, it is necessary to assess the scope of the measure in question under environmental law and not the rules on State aid.
51 Consequently, the first part of the first plea in law must be rejected as manifestly unfounded.
52 With respect to the second part of the first plea in law, relating to the alleged infringement of the Aarhus Convention by Regulation No 1367/2006, it is sufficient to note that the Court of Justice recently ruled on that issue in the appeals brought against the judgments in Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, cited in paragraph 31 above (EU:T:2012:301), and Stichting Natuur en Milieu and Pesticide Action Network Europe v Commission, cited in paragraph 31 above (EU:T:2012:300). According to the Court of Justice, Article 9(3) of the Aarhus Convention lacks the clarity and precision required for that provision to be properly relied on before the EU judicature for the purposes of assessing the legality of Article 10(1) of Regulation No 1367/2006 (judgments in Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, cited in paragraph 13 above, EU:C:2015:4, paragraph 68, and in Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe, cited in paragraph 13 above, EU:C:2015:5, paragraph 60).
53 In its observations in response to a written question put by the Court, the applicant does not advance any argument capable of calling into question that conclusion. In particular, the arguments relating to the judgment of 8 March 2011 in Lesoochranárske zoskupenie (C‑240/09, ECR, EU:C:2011:125) concerning the interpretation, to the fullest extent possible, of Article 10(1) of Regulation No 1367/2006 in accordance with Article 9(3) of the Aarhus convention are ineffective for the purposes of the second part of the first plea in law. As the Court of Justice held in the judgments in Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, cited in paragraph 13 above (EU:C:2015:4), and Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe, cited in paragraph 13 above (EU:C:2015:5), that provision of the Aarhus Convention may not be relied upon in order to assess the legality of Regulation No 1367/2006. With respect to the possible relevance of those arguments for the purposes of the first part of the first plea in law, it is sufficient to refer to the considerations set out in paragraphs 33 to 50 above concerning the classification of the decision on the transitional free allocation as a measure of general application.
54 Consequently, the second part of the first plea in law must be rejected as manifestly unfounded.
55 In the light of the foregoing, the first plea in law must be dismissed in its entirety as manifestly unfounded.
The second plea in law, alleging the infringement of Directive 2003/87 and of the guidance document
– Arguments of the parties
56 In the second plea, the applicant argues that the Commission infringed Directive 2003/87 and the guidance document. In particular, it claims that the decision rejecting the request for internal review indicates that the decision on the transitional free allocation does not approve the individual investment projects, which constitutes a breach of Article 10c of Directive 2003/87 and of the guidance document.
57 The applicant claims that the Commission was required to ensure that the national plan and all the individual investments planned meet the requirements set out in Article 10c of Directive 2003/87 and in paragraph 25 of the guidance document.
58 Consequently, according to the applicant, by indicating that the decision on the transitional free allocation does not approve the individual investment projects, the decision rejecting the request for internal review is based on an incorrect interpretation of the legislation in force and is therefore unlawful.
59 The Commission disputes the applicant’s arguments and maintains that it cannot be claimed that it approved individual investment projects.
– Findings of the Court
60 It must be held that if the second plea were to be interpreted as seeking to challenge the analysis and content of the decision relating to the transitional free allocation, it would be inadmissible for the reasons indicated in paragraphs 19 to 21 of the present order.
61 If the second plea were to be interpreted as seeking to show that the decision relating to the transitional free allocation is a measure of individual scope, and not of general application, it would have to be dismissed as manifestly unfounded on the grounds set out in paragraphs 33 to 50 of the present order.
62 In that regard, it should be added that the additional argument put forward by the applicant concerning the alleged breach of the guidance document does not invalidate that conclusion. According to case-law relating to the effects of other Commission guidance adopted in the context of Directive 2003/87, by adopting rules of administrative conduct designed to produce external effects and announcing by publishing them that it will henceforth apply them to the cases to which they relate, the institution in question imposes a limit on the exercise of its own discretion and cannot depart from those rules, if it is not to be found, in some circumstances, to be in breach of general principles of law, such as the principles of equal treatment, of legal certainty or of the protection of legitimate expectations. It cannot therefore be precluded that, on certain conditions and depending on their content, such rules of conduct of general application may produce legal effects and that, in particular, the administration may not depart from them in an individual case without giving reasons that are compatible with the principle of equal treatment, provided that such an approach is not contrary to other superior rules of Community law (judgment of 8 March 2011 in Germany v Commission, T‑374/04, ECR, EU:T:2007:332, paragraph 111).
63 Accordingly, the Commission is liable to have its guidance raised against it, in particular by the Member States to which it is addressed, when it adopts measures running counter to that guidance (judgment in Germany v Commission, cited in paragraph 62 above, EU:T:2007:332, paragraph 112).
64 However, independently of the scope of the Commission guidance document in the present case, the fact that the Commission is to verify that the investments concerned comply with the principles laid down in Directive 2003/87 does not mean that the decision relating to the transitional free allocation approves individual investment projects, for the reasons set out in paragraphs 33 to 50 of the present order.
65 In the light of the foregoing, the second plea in law must be rejected as manifestly unfounded and, in consequence, the action must be dismissed in its entirety.
Costs
66 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the Commission’s costs, in accordance with the form of order sought by the Commission.
67 Under Article 87(4) of those Rules of Procedure, Member States and institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Czech Republic, which has intervened in support of the form of order sought by the applicant, must bear its own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. The action is dismissed.
2. Frank Bold Society is ordered to bear its own costs and to pay those incurred by the European Commission.
3. The Czech Republic shall bear its own costs.
Luxembourg, 29 June 2015.
E. Coulon | | S. Frimodt Nielsen |