ORDER OF THE GENERAL COURT (Seventh Chamber)
4 June 2012 (*)
(Action for annulment — Environment — Directive 2003/87/EC — Free allocation of greenhouse gas emission allowances from 2013 onwards — Commission Decision establishing product benchmarks to be applied in calculating the allocation of emission allowances — Fourth paragraph of Article 263 TFEU — Absence of individual concern — Regulatory act entailing implementing measures — Inadmissibility)
In Case T‑381/11,
Europäischer Wirtschaftsverband der Eisen- und Stahlindustrie (Eurofer) ASBL, established in Luxembourg (Luxembourg), represented by S. Altenschmidt and C. Dittrich, lawyers,
applicant,
v
European Commission, represented by G. Wilms, K. Herrmann and K. Mifsud‑Bonnici, acting as Agents,
defendant,
APPLICATION for annulment of Commission Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2011 L 130, p. 1),
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich (Rapporteur), President, I. Wiszniewska‑Białecka and M. Prek, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, Europäischer Wirtschaftsverband der Eisen- und Stahlindustrie (Eurofer) ASBL, is a trade association which, in accordance with its statutes, represents the interests of the European steel-manufacturing industry. Eurofer’s members use blast furnaces and steel mills to manufacture pig iron and steel. That manufacturing involves the emission of gas fuel waste.
2 On 13 October 2003, the European Parliament and the Council adopted Directive 2003/87/EC 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 last amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community (OJ 2009 L 140, p. 63) (‘Directive 2003/87’). That scheme for greenhouse gas emission allowance trading was established in order to reduce such emissions within the European Union. In accordance with Article 2(1) and Annexes I and II to Directive 2003/87, the installations of Eurofer’s members come within the scope of Directive 2003/87, with the result that those members are required to participate in the emission allowance trading scheme.
3 Under Article 10a of Directive 2003/87, the European Commission is to adopt Community-wide and fully-harmonised implementing measures for the harmonised free allocation of the emission allowances. The Commission is required, inter alia, to define the benchmark for each sector and to take, as a starting point, the average performance of the 10% most efficient installations in a sector in the years 2007-2008. The number of emission allowances to be allocated free of charge to each of the installations concerned is calculated on the basis of those benchmarks.
4 In accordance with the fifth subparagraph of Article 10a(1) and the first subparagraph of Article 10a(2) of Directive 2003/87, in defining the principles for setting ex-ante benchmarks in individual sectors and subsectors, and in determining the starting point for defining the principles for setting ex-ante benchmarks in individual sectors and subsectors, the Commission is to consult the relevant stakeholders, including the sectors and subsectors concerned. Eurofer participated in that consultation.
5 On 27 April 2011, the Commission adopted Decision 2011/278/EU determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87 (OJ 2011 L 130, p. 1; ‘the contested decision’). In accordance with Article 2 of the contested decision, it applies to the free allocation of emission allowances in relation to the installations referred to in Chapter III of Directive 2003/87 in trading periods from 2013 onwards, with the exception of transitional free allocation of emission allowances for the modernisation of electricity generation pursuant to Article 10c of that directive. According to recital 1 in the preamble to the contested decision, allocations are to be fixed prior to the trading period so as to enable the market to function properly. In Annex I to the contested decision, the Commission set out the product benchmarks. Hence, for the product ‘hot metal’, it set a benchmark value of 1.328 allowances per tonne.
Procedure and forms of order sought by the parties
6 By application lodged at the Registry of the General Court on 21 July 2011, Eurofer brought the present action.
7 By separate document lodged at the Registry of the General Court on the same day, Eurofer made an application for interim relief, requesting, in essence, that the General Court suspend operation of the contested decision.
8 By separate document, also lodged on 21 July 2011, Eurofer asked the Court to adjudicate under the expedited procedure in accordance with Article 76a of the Rules of Procedure of the General Court. On 8 August 2011, the Commission lodged its observations on that request.
9 By separate document, lodged at the Registry of the General Court on 7 September 2011, the Commission raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure.
10 By order dated 14 September 2011, the General Court (Seventh Chamber) rejected the request for an accelerated procedure.
11 By order of the President of the General Court of 15 September 2011 in Case T‑381/11 R Eurofer v Commission, not published in the ECR, the application for interim relief was dismissed and the costs reserved.
12 On 30 September 2011, Eurofer lodged its observations on the objection of inadmissibility.
13 By letter lodged at the Registry of the General Court on 28 October 2011, Euroalliages, an association of European ferroalloy producers, applied for leave to intervene in support of Eurofer.
14 In its application, Eurofer claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
15 In its objection of inadmissibility, the Commission claims that the Court should:
– dismiss the application as inadmissible;
– order Eurofer to pay the costs.
16 In its observations on the objection of inadmissibility, Eurofer claims that the Court should:
– dismiss the Commission’s objection of inadmissibility;
– in the alternative, join the plea of inadmissibility to the substance of the case.
Law
17 Under the first and fourth paragraphs of Article 114 of the Rules of Procedure, on the application of a party, the Court can rule on admissibility without going to the substance of the case. In accordance with Article 114(3), the remainder of the proceedings is to be oral, unless the Court decides otherwise. In the present case, the Court considers that the information in the documents before it is sufficient for there to be no need to proceed to the oral stage of the proceedings.
18 As Eurofer is an association which represents the interests of the European steel manufacturing industry, according to the case‑law, it is, as a rule, entitled to bring an action for annulment only if the undertakings which it represents or some of those undertakings themselves have standing or if it can prove an interest of its own (see to that effect Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187 v Commission [2006] ECR I‑5479, paragraph 56 and the case‑law cited).
19 As regards the admissibility of the action on the ground that the contested decision affects Eurofer’s own interests, Eurofer submits that it participated in the consultation procedure laid down in the fifth subparagraph of Article 10a(1), and the first subparagraph of Article 10a(2), of Directive 2003/87.
20 In that regard, first, it must be pointed out that, under the fifth subparagraph of Article 10a(1) of Directive 2003/87, in defining the principles for setting ex-ante benchmarks in individual sectors and subsectors, the Commission is to consult the relevant stakeholders, including the sectors and subsectors concerned. Moreover, pursuant to the first subparagraph of Article 10a(2) of that directive, the Commission is to consult the relevant stakeholders, including the sectors and subsectors concerned, in order to establish the average performance of the 10% most efficient installations in a sector or subsector in the Community in the years 2007-2008 as the starting point for defining the principles for setting ex-ante benchmarks in individual sectors or subsectors. It follows that the relevant stakeholders within the meaning of those provisions are the operators of the installations concerned by the establishment of those benchmarks, such as Eurofer’s members. Since, in Annex I to the contested decision, the Commission established the benchmarks for products, it was required to consult Eurofer’s members concerning the abovementioned principles prior to the adoption of that decision. Consequently, Eurofer had the right to be consulted only in its role as representative of the interests of its members.
21 Secondly, it must be noted that Eurofer confirmed that it participated in that consultation in the interests of its members, as a party representing the interests of steel-manufacturing undertakings. It communicated their positions and opinions in the course of that consultation procedure, since, according to it, the establishment of the product benchmark for hot metal seriously affected those members. Therefore, in referring to its participation in the consultation procedure, Eurofer does not, in essence, put forward an interest of its own, but rather refers to the interests of its members.
22 Thirdly, it must be pointed out that the present case can be distinguished from those in which the Courts of the European Union acknowledged, in the context of an action for annulment, that an individual interest of an association representing the undertakings or organisations had been affected. In contrast to the cases which gave rise to the judgments of the Court in Joined Cases 67/85, 68/85 and 70/85 Kwekerij van der Kooy and Others v Commission [1988] ECR 219, paragraphs 20 to 24, and Case C‑313/90 CIRFS and Others v Commission [1993] ECR I‑1125, paragraphs 29 and 30, Eurofer has not shown, in the present case, that it actively pursued negotiations with the Commission during the procedure which led to the adoption of the contested decision. Moreover, in contrast to the case which gave rise to the order of 5 May 2009 in Case C‑355/08 P WWF‑UK v Council, not published in the ECR, in the present case, Eurofer was not referred to by name in the provisions cited in paragraph 19 above.
23 Consequently, in referring to the provisions cited in paragraph 19 above, Eurofer cannot put forward an individual interest, but rather solely the interests of its members which, moreover, it invoked in the course of the consultation procedure.
24 It follows that, in the absence of an individual interest, Eurofer’s action is admissible only if its members or some of those members have themselves standing.
25 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.
26 In the present case, it is common ground that the contested decision was, as provided in Article 25 of that decision, addressed to the Member States. Neither Eurofer nor its members are addressees of that act. Therefore, under the fourth paragraph of Article 263 TFEU, Eurofer can bring an action against that act only if it is of direct and individual concern to its members, or if the contested decision constitutes a regulatory act which is of direct concern to them and does not entail implementing measures.
27 In support of the form of order it seeks, the Commission raises three bars to admissibility, alleging, first, that Eurofer lacks standing because its members are not directly and individually affected, secondly, that Eurofer lacks standing because the contested decision is not a regulatory act which directly concerns Eurofer’s members and does not entail implementing measures within the meaning of the fourth paragraph of Article 263 TFEU, and thirdly, that Eurofer lacks standing in that the annulment of the contested decision would not be liable to benefit it.
The first bar to admissibility, alleging a lack of standing because Eurofer’s members are not directly and individually affected by the contested decision
28 The Commission claims, in essence, that Eurofer does not have standing because the contested decision is of neither direct nor individual concern to its members.
29 With regard to whether the applicants are individually concerned by the contested decision, it should be pointed out that the decision is a measure of general application in that it applies to situations which have been determined objectively, and has legal effects as regards a category of persons viewed in a general and abstract manner. Under Article 2 of the contested decision, that decision applies to the free allocation of emission allowances in relation to the stationary installations referred to in Chapter III of Directive 2003/87 in trading periods from 2013, with the exception of transitional free allocation of emission allowances for the modernisation of electricity generation pursuant to Article 10c of that directive. The contested decision therefore concerns all operators of those installations which, like Eurofer’s members, are required to participate in the emission allowance trading scheme in accordance with Article 2(1) and Annexes I and II to Directive 2003/87, in general and abstract terms, under the rules established by the contested decision and that directive.
30 However, it is not excluded that, in certain circumstances, the provisions of a measure of general application can be of individual concern to certain natural or legal persons and the measure can be therefore in the nature of a decision in their regard. In accordance with settled case‑law, natural or legal persons other than the person to whom a measure is addressed can claim to be individually concerned, for the purposes of the fourth paragraph of Article 263 TFEU, only if they are affected by the measure in question by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee (Case 25/62 Plaumann v Commission [1963] ECR 95, 107; Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 36; and Case C‑263/02 P Commission v Jégo-Quéré [2004] ECR I‑3425, paragraph 45).
31 The fact that Eurofer’s members are operators of stationary installations referred to in Chapter III of Directive 2003/87 cannot distinguish them since, as regards the provisions of the contested decision referred to in paragraph 29 above, they are only concerned by that decision by reason of their objective capacity as operators of those installations, in the same way as any other trader which is currently or potentially in the same situation.
32 Eurofer claims that its members are individually concerned by the contested decision because of the procedural guarantees referred to in the fifth subparagraph of Article 10a(1) and the first subparagraph of Article 10a(2) of Directive 2003/87. According to those provisions, the Commission is to consult the relevant stakeholders in defining the principles for setting ex ante benchmarks in individual sectors and subsectors. Eurofer claims that, without that consultation, the Commission would not have the necessary information and respect of the principle of proportionality would not be guaranteed. Under those provisions, the Commission is to be informed of and assess the positions of the parties concerned. In any event, according to Eurofer, through that consultation, Eurofer’s members are distinguished as regards any other person.
33 It is therefore necessary to examine whether, under the procedural provisions referred to in paragraph 32 above, Eurofer’s members are individually concerned by the contested decision.
34 According to the case‑law, the fact that a person participates in the process by which a European Union measure is adopted does not distinguish him individually with regard to the measure in question unless provision has been made under the European Union rules for procedural guarantees in his favour. Where a provision of European Union law requires that, for the purposes of adopting a decision, a procedure must be followed in respect of which a natural or legal person may assert rights, such as the right to be heard, the special legal position which that person enjoys has the effect of distinguishing him individually within the meaning of the fourth paragraph of Article 263 TFEU (see order of 16 September 2005 in Case C‑342/04 P Schmoldt and Others v Commission, not published in the ECR, paragraphs 39 and 40 and the case‑law cited).
35 However, it must be pointed out that a person or entity enjoying such a procedural right will not, as a rule, where there is any type of procedural guarantee, have standing to bring proceedings contesting the legality of a Community act in terms of its substantive content. The precise scope of an individual’s right of action against a Community measure depends on his legal position as defined by EU law with a view to protecting the legitimate interests thus afforded him (see order in WWF-UK v Council, cited in paragraph 22 above, paragraph 44 and the case‑law cited).
36 As noted in paragraph 20 above, it is clear from the fifth sub-paragraph of Article 10a(1) and the first sub-paragraph of Article 10a(2) of Directive 2003/87 that Eurofer’s members, as relevant stakeholders within the meaning of those provisions, had a right to be heard by the Commission and that the Commission was therefore required to consult them on the principles referred to in those provisions prior to the adoption of the contested decision.
37 However, that right to be heard does not create an obligation for the Commission to implement the proposals contained in the observations submitted by Eurofer on behalf of its members. An obligation to consult Eurofer’s members cannot be considered the same as an obligation to follow the observations that they submit. Moreover, it is not apparent from the relevant legislative provisions that Eurofer’s members may be recognised as having the right to challenge the validity of the contested regulation in terms of its substantive content (see, to that effect, order in WWF-UK v Council, cited in paragraph 22 above, paragraphs 45 and 46).
38 Thus, merely invoking the existence of a procedural guarantee before the courts of the European Union does not mean that an action will be admissible where it is based on pleas alleging the infringement of substantive rules of law (see, to that effect, order in WWF-UK v Council, cited in paragraph 22 above, paragraph 47; see, by analogy, order of 11 January 2012 in Case T‑58/10 Phoenix-Reisen and DRV v Commission, not published in the ECR, paragraph 33). The pleas in law raised by Eurofer in support of its action for annulment of the contested decision do not concern an alleged breach of the obligation to consult. Those pleas in law concern an infringement of Article 10a of Directive 2003/87 in that the product benchmark for hot metal was not correctly established by the Commission, an infringement of the obligation to give reasons for the contested decision, and an infringement of the principle of proportionality. Moreover, Eurofer does not dispute that the Commission fulfilled its obligation to consult. It states that, as a party to the consultation procedure representing the interests of its members, it submitted their positions and their opinions in the course of that procedure.
39 In the light of the foregoing and in so far as Eurofer seeks in the present case not to protect its procedural rights but to challenge the legality of the contested decision in terms of its substantive content, Eurofer’s members are not individually concerned within the meaning of the fourth paragraph of Article 263 TFEU (see, to that effect, order in WWF‑UK v Council, cited in paragraph 22 above, paragraphs 48 and 49).
40 Since Eurofer’s members are not individually affected by the contested decision, and without it being necessary to examine whether they are directly affected by that decision, it must be held that Eurofer does not have standing under the fourth paragraph of Article 263 TFEU in claiming that its members are individually and directly concerned.
The second bar to admissibility, alleging a lack of standing because the contested decision is not a regulatory act which directly concerns Eurofer’s members and does not entail implementing measures within the meaning of the fourth paragraph of Article 263 TFEU
41 The Commission claims, in essence, that Eurofer does not have standing under the fourth paragraph of Article 263 TFEU because the contested decision is not a regulatory act which is of direct concern to it and does not entail implementing measures.
42 First, as regards the question of whether the contested decision constitutes a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU, it must be recalled that the meaning of ‘regulatory act’ for the purposes of that provision must be understood as covering all acts of general application apart from legislative acts.
43 In the present case, the contested decision is of general application, in that it applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged in general and in the abstract (see paragraph 29 above).
44 Moreover, the contested decision does not constitute a legislative act since it was not adopted in accordance with either the ordinary legislative procedure or the special legislative procedure within the meaning of paragraphs 1 to 3 of Article 289 TFEU. The contested decision is an act adopted by the Commission on the basis of Article 10a(1) of Directive 2003/87.
45 Consequently, the contested decision constitutes a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU.
46 Secondly, as regards the question of whether the contested decision entails implementing measures, within the meaning of the fourth paragraph of Article 263 TFEU, it must be recalled that under Article 1 of that decision, it lays down transitional Union-wide rules for the harmonised free allocation of emission allowances under Directive 2003/87 from 2013 onwards.
47 In order to examine that question, it necessary to point out, as a preliminary, the respective roles and powers allocated to the Commission and the Member States under the scheme established by Directive 2003/87 and the contested decision concerning the free allocation of emission allowances in trading periods from 2013 onwards.
48 First, it should be noted that it is clear from the first paragraph of Article 1 of Directive 2003/87 that the essential aim of that directive is to establish a scheme for greenhouse gas emission allowance trading within the European Union in order to promote reductions of greenhouse gas emissions in a cost-effective and economically efficient manner. According to the second paragraph of Article 1 of Directive 2003/87, that directive also provides for the reductions of greenhouse gas emissions to be increased so as to contribute to the levels of reductions that are considered scientifically necessary to avoid dangerous climate change.
49 To those ends, the first paragraph of Article 9 of Directive 2003/87 provides that the European Union-wide quantity of allowances issued each year starting in 2013 is to decrease in a linear manner beginning from the mid-point of the period from 2008 to 2012. According to the second paragraph of that article, by 30 June 2010 at the latest, the Commission is to publish the absolute Community-wide quantity of allowances for 2013. That total quantity is allocated in accordance with the rules laid down in Articles 10, 10a, and 10c of Directive 2003/87. Hence, a part of the allowances is allocated free of charge on the basis of Article 10a of that directive and the contested decision. Another part of the allowances is allocated free of charge for the modernisation of electricity generation, in accordance with Article 10c of that directive. All allowances which are not allocated free of charge in accordance with Article 10a and 10c are to be auctioned by the Member States from 2013 onwards, pursuant to Article 10 of that directive.
50 As regards, in particular, the procedure for free allocation on the basis of Article 10a of that directive and the contested decision, under Article 5(1) of the contested decision, each Member State is to identify all installations in its territory and eligible for free allocation under Article 10a of Directive 2003/87. Under Article 6(1) of the contested decision, the Member States are to divide each installation meeting those requirements into one or more sub-installations, as defined in that provision, as required. One of the categories of sub-installations referred to is that with a product benchmark. For each installation, the Member States are to collect from the operator all relevant information and data, in accordance with Article 7 of the contested decision. Under Article 9(1) of the contested decision, for incumbent installations, Member States are to determine historical activity levels of each installation for the baseline period from 1 January 2005 to 31 December 2008, or, where they are higher, for the baseline period from 1 January 2009 to 31 December 2010, on the basis of the data collected under Article 7. Article 9(2) of the contested decision provides that the product-related historical activity level, for each product for which a product benchmark has been determined as referred to in Annex I to that decision, is to refer to the median annual historical production of this product in the installation concerned during the baseline period.
51 Under Article 10(1) of the contested decision, based on the data collected in accordance with Article 7, Member States are, for each year, to calculate the number of emission allowances allocated free of charge from 2013 onwards to each incumbent installation on their territory in accordance with paragraphs 2 to 8 of that article. Article 10(2)(a) of the contested decision states that, to calculate that number, the Member States are to first determine, for each product benchmark sub-installation, the preliminary annual number of emission allowances allocated free of charge for a given year, which is to correspond to the value of that product benchmark as referred to in Annex I to the contested decision multiplied by the relevant product-related historical activity level.
52 In accordance with Article 11(1) of Directive 2003/87 and Article 15(1) of the contested decision, Member States are to submit to the Commission, by 30 September 2011 at the latest, the list of installations covered by that directive in their territory, including installations identified pursuant to Article 5 of the contested decision. Article 15(2)(e) of that decision specifies in that respect that the list referred to in paragraph 1 is to contain, for each sub-installation, the preliminary annual number of emission allowances allocated free of charge over the period from 2013 to 2020 as determined in accordance with Article 10(2) of the contested decision. Under the first subparagraph of Article 15(3) of that decision, the Commission is to assess the inclusion of each installation in the list and the related preliminary total annual amounts of emission allowances allocated free of charge.
53 According to the second subparagraph of Article 15(3) of the contested decision, the Commission is to determine the uniform cross-sectoral correction factor to be applied, if necessary, where, under Article 10a(5) of Directive 2003/87, the maximum annual amount of allowances to be allocated free of charge is limited.
54 In accordance with Article 15(4) of the contested decision, if the Commission does not reject an installation’s inscription on that list, including the corresponding preliminary total annual amounts of emission allowances allocated free of charge for that installation, the Member State concerned is to proceed to the determination of the final annual amount of emission allowances allocated free of charge for each year over the period from 2013 to 2020 in accordance with Article 10(9) of the contested decision. The latter provision provides that the final total annual amount of emission allowances allocated free of charge for each incumbent installation is to be the preliminary total annual amount of emission allowances allocated free of charge for each installation multiplied by the cross-sectoral correction factor.
55 Finally, Article 15(5) of the contested decision provides that, after determination of the final annual amount for all incumbent installations in their territory, Member States are to submit to the Commission a list of the final annual amounts of emission allowances allocated free of charge over the period from 2013 to 2020 as determined in accordance with Article 10(9) of that decision.
56 In the light of the respective roles and powers of the Commission and the Member States and the different steps of the decision-making process under the scheme established by Directive 2003/87 and the contested decision, as set out in paragraphs 47 to 55 above, it must be held that the contested decision entails implementing measures within the meaning of the fourth paragraph of Article 263 TFEU.
57 Article 15 of the contested decision entails implementing measures that the Member States and the Commission must adopt on the basis of that decision. Hence, first, the Member States must, in accordance with Article 11(1) of Directive 2003/87 and Article 15(1) of the contested decision, submit to the Commission a list of installations covered by Directive 2003/87 in their territory which must contain, under Article 15(2)(e) of the contested decision, the preliminary annual number of emission allowances allocated free of charge over the period from 2013 to 2020 as determined in accordance with Article 10(2) of that decision. Secondly under the second subparagraph of Article 15(3) of the contested decision, the Commission is to determine the uniform cross-sectoral correction factor. Thirdly, pursuant to Article 15(4) of the contested decision, the Commission may reject an installation’s inscription on that list, including the corresponding preliminary total annual amounts of emission allowances allocated free of charge for that installation. Fourthly, the Member States are to determine the final total annual amount of emission allowances allocated free of charge for each year in the period 2013 to 2020, in accordance with Article 10(9) of the contested decision.
58 It follows that the contested decision provides that the Member States and the Commission are to adopt several implementing measures, which culminate in the determination, by the Member States, of the final total annual amount of emission allowances allocated free of charge for each of the installations concerned whose inscription on the abovementioned list has not been rejected by the Commission. Consequently, the contested decision does not constitute a regulatory act which does not entail implementing measures, within the meaning of the fourth paragraph of Article 263 TFEU.
59 It must be pointed out that the question of whether or not the contested decision leaves a degree of discretion to the authorities responsible for the implementing measures is irrelevant. It is true that lack of discretion is a criterion which must be examined in order to determine whether the applicant is directly concerned (see order of 23 September 2008 in Case T‑195/07 Lafarge Cement v Commission, not published in the ECR, paragraph 22 and the case‑law cited). However, the requirement of an act which does not entail implementing measures laid down in the fourth paragraph of Article 263 TFEU constitutes a different condition than the requirement that the act be of direct concern to the applicant. Eurofer’s argument, according to which the contested decision does not entail implementing measures because of an alleged lack of discretion, must therefore be dismissed.
60 Contrary to which is alleged by Eurofer, the conclusion that the contested decision is not an act which does not entail implementing measures within the meaning of the fourth paragraph of Article 263 TFEU is not called into question by the objective sought by that provision. Admittedly, that objective is to enable natural and legal persons to bring an action against acts of general application which are not legislative acts, which are of direct concern to them and which do not entail implementing measures, therefore avoiding a situation in which such a person would have to break the law in order to have access to justice. However, the situation of Eurofer’s members is not that at which the abovementioned objective is directed. In the present case, Eurofer’s members may, in principle, without being required to infringe the contested decision beforehand, challenge the national implementing measures of the contested decision and, in that context, plead the unlawfulness of the contested decision before the national courts which may, before giving judgment, have recourse to the provisions of Article 267 TFEU.
61 Finally, as regards Eurofer’s argument according to which an action, brought solely against the determination by the Member States of the final total annual amount of emission allowances allocated free of charge for each of the installations concerned, would have uncertain consequences because of the exhaustion of the total amount of allowances to be allocated free of charge at that moment and would therefore undermine the principle of effective judicial protection, it must be pointed out that, first, such an exhaustion has not been established and, secondly, those circumstances cannot change the conditions for the admissibility of an action for annulment laid down in the FEU Treaty (see to that effect, order of 17 February 2009 in Case C-483/07 P Galileo Lebensmittel v Commission [2009] ECR I‑959, paragraph 59).
62 Consequently, because the contested decision is a regulatory act which entails implementing measures, it is not necessary to examine the question of whether the members of Eurofer are directly concerned by that decision.
63 It follows from all of the preceding considerations that Eurofer does not have standing under the fourth paragraph of Article 263 TFEU. The action must consequently be dismissed as inadmissible, without there being any need to consider the merits of the third bar to admissibility raised by the Commission alleging an absence of any interest for Eurofer in bringing proceedings.
64 In those circumstances, it is not necessary to rule on the application for leave to intervene submitted by Euroalliages.
Costs
65 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 pleadings of the successful party. Since Eurofer has been unsuccessful, it must be ordered to pay the costs, including those of the proceedings for interim relief, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. It is not necessary to rule on Euroalliages’ application to intervene.
3. Europäischer Wirtschaftsverband der Eisen- und Stahlindustrie (Eurofer) ASBL is ordered to pay the costs, including those of the proceedings for interim relief.
Luxembourg, 4 June 2012.