ORDER OF THE PRESIDENT OF THE COURT
2 December 2011 (*)
(Application for interim measures – State aid – Decision on aid intended to facilitate the closure of uncompetitive coal mines – Application for suspension of operation of a measure – Lack of standing to bring proceedings – Lack of concordance with the main action – Non-severability – Inadmissibility – Balance of interests)
In Case T‑176/11 R,
Federación Nacional de Empresarios de Minas de Carbón (Carbunión), established in Madrid (Spain), represented by K. Desai, Solicitor, S. Cisnal de Ugarte and M. Peristeraki, lawyers,
applicant,
v
Council of the European Union, represented initially by F. Florindo Gijón and A. Lo Monaco, and subsequently by F. Florindo Gijón and K. Michoel, acting as Agents,
defendant,
APPLICATION for partial suspension of operation of Council Decision 2010/787/EU of 10 December 2010 on State aid to facilitate the closure of uncompetitive coal mines (OJ 2010 L 336, p. 24) and, in the alternative, application for full suspension of operation of that decision,
THE PRESIDENT OF THE COURT
makes the following
Order
Facts
1 The applicant, the Federación Nacional de Empresarios de Minas de Carbón (Carbunión), is the national federation of Spanish coal producers. It has legal personality and defends the interests of coal mine producers in Spain and their associations. According to its statutes, its mission consists, inter alia, in representing its members before any institution or jurisdiction. All coal mines in Spain are currently members of the applicant.
2 Upon the expiry of the ECSC Treaty, the Council of the European Union adopted, on 23 July 2002, Council Regulation (EC) No 1407/2002 on State aid to the coal industry (OJ 2002 L 205, p. 1), which recognised the strategic importance of coal as an indigenous energy source and its contribution to the long-term security of supply for the European Union and which, to that end, established a State aid scheme specific to the sector. The aid granted by the Member States under that regulation was divided into three categories: aid for the reduction of activity, aid for accessing coal reserves, that is to say, aid to cover initial investment costs and current production aid, and also aid to cover exceptional costs.
3 Under the scheme established by Regulation No 1407/2002, considerable investments were made in the Spanish mining sector, made up of 29 coal-producing mines, in order to keep them in operation and improve their efficiency. Under the Spanish national plan for strategic coal reserves for 2006 to 2012, those mines were considered a strategic reserve. That plan emphasised the strategic importance of coal and the need to continue supporting the coal mining industry on social or regional grounds and in order to guarantee security of energy supply, as coal was the principal indigenous source of primary energy. The Spanish mining sector thus received, under Regulation No 1407/2002, aid to cover initial investment costs and current production aid, which were considered essential to keep the sector viable.
4 In May 2009, the Commission of the European Communities launched a public consultation on the consequences of the expiry of Regulation No 1407/2002 on 31 December 2010. The purpose of that consultation, in which the applicant participated, was to enable the Commission to determine whether it was necessary to maintain in place the specific rules for the coal sector. The Commission thus invited the participants to table observations on six options, including extending the application of Regulation No 1407/2002 by 10 years and proposing a regulation to the Council authorising the Member States to grant gradually decreasing operating aid (coverage of current production losses), provided that it was accompanied by a cessation of activities in accordance with a mine closure plan, and aid to cover exceptional costs (social and environmental costs linked to the closure of the coal mines).
5 Whilst the applicant expressed its preference for the first option, in July 2010 the Commission decided to propose to the Council a regulation providing for aid for closure and coverage of exceptional costs. According to that proposal, all operating aid to the coal sector was contingent on a plan being presented for the closure of mines operating at a loss.
6 Following up on that proposal, the Council adopted Decision 2010/787/EU of 10 December 2010 on State aid to facilitate the closure of uncompetitive coal mines (OJ 2010 L 336, p. 24) (‘the contested decision’). The contested decision, adopted on the basis of Article 107(3)(e) TFEU, provides that State aid to the coal sector will be authorised only up to 2018, and only if the aid recipient agrees to terminate coal production and sales definitively and to wind down its production gradually.
7 Article 3 of the contested decision reads as follows:
‘Closure aid
1. Aid to an undertaking intended specifically to cover the current production losses of coal production units may be considered compatible with the internal market only if it satisfies the following conditions:
(a) the operation of the coal production units concerned must form part of a closure plan the deadline of which does not extend beyond 31 December 2018;
(b) the coal production units concerned must be closed definitively in accordance with the closure plan;
(c) the aid notified must not exceed the difference between the foreseeable production costs and the foreseeable revenue for a coal year. The aid actually paid must be subject to annual correction, based on the actual costs and revenue …;
(d) the amount of aid … must not cause prices … to be lower than those for coal of a similar quality from third countries;
(e) …
(f) the overall amount of closure aid granted by a Member State must follow a downward trend: by the end of 2013 the reduction must not be less than 25%, by the end of 2015 not less than 40%, by the end of 2016 not less than 60% and by the end of 2017 not less than 75% of the aid granted in 2011;
(g) the overall amount of closure aid to the coal industry of a Member State must not exceed … the amount of aid granted by that Member State … for the year 2010;
(h) the Member States must establish a plan to take measures aimed at mitigating the environmental impact of the production of coal by production units to which aid is granted … .
2. The inclusion of measures constituting State aid … in a plan as referred to in point (h) of paragraph 1 shall be without prejudice to the notification and standstill obligations imposed on Member States … and to the compatibility of such measures with the internal market.
3. If the coal production units to which aid is granted pursuant to paragraph 1 are not closed at the date fixed in the closure plan as authorised by the Commission, the Member State concerned shall recover all aid granted in respect of the whole period covered by the closure plan.’
Procedure and forms of order sought
8 By application lodged at the Registry of the Court on 14 March 2011, the applicant brought an action for annulment of Article 3(1)(a), (b) and (f), and of Article 3(3) of the contested decision.
9 In support of its action, the applicant alleges, inter alia, infringement of the principle of legal certainty in that the contested decision is an abrupt change of position by the European Union towards the indigenous coal sector and does not provide for a transitional period enabling the applicant to adapt to that major policy change; infringement of the principle of proportionality in that the decision imposes excessive restrictions on the operation of indigenous coal mines in Spain; and misuse of powers in that the decision jeopardises the proper functioning of the energy market in the European Union and also the security of energy supply in the European Union, particularly in Spain. The applicant also criticises the Council for having discriminated against indigenous producers in favour of coal importers in the European Union as well as other forms of energy.
10 By separate document lodged at the Court Registry on 13 October 2011, the applicant brought the present action for interim measures, in which it claims, in essence, that the President of the Court should:
– by way of principal remedy, suspend the operation of Article 3(1)(a), (b) and (f) of the contested decision or, in the alternative, of the contested decision in its entirety, pending a ruling by the Court in the main action;
– order the Council to pay the costs.
11 In its written observations, lodged at the Court Registry on 7 November 2011, the Council contends that the President of the Court should:
– dismiss the application for interim measures as unfounded and, in the alternative, dismiss the application for interim measures as inadmissible;
– order the applicant to pay the costs.
Law
12 In accordance with Articles 278 TFEU and 279 TFEU, read in conjunction with Article 256(1) TFEU, the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that application of a measure challenged before the General Court be suspended or prescribe any necessary interim relief. Nevertheless, Article 278 TFEU lays down the principle that actions do not have suspensory effect, since measures adopted by the institutions, organs and agencies of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing the application may order suspension of operation of such a measure, or other interim relief (see, to that effect, order of the President of 17 December 2009 in Case T-396/09 R Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, not published in the ECR, paragraph 31 and the case-law cited).
13 Moreover, Article 104(2) of the Rules of Procedure of the General Court provides that an application for interim measures is to state the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Accordingly, the judge hearing an application for interim measures may order suspension of operation of an act, or other interim relief, if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the interests of the party applying for relief, the order must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, which means that an application for interim measures must be dismissed if any one of them is not met (order of the President in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30).
14 In the context of that overall examination, the judge hearing an application for interim measures has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which the various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (order of the President in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23, and order of the President of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25). Where appropriate, the judge hearing the application must also weigh up the interests involved (order of the President in Case C‑445/00 R Austria v Council [2001] ECR I‑1461, paragraph 73).
15 In the light of the documents in the case-file, the President of the General Court considers that he has all the information needed to rule on the present application for interim measures and that it is not necessary first to hear oral argument from the parties.
Admissibility
16 It is apparent from the case-file for both the application for interim measures and the main proceedings of which it forms a part that the applicant is seeking ultimately to maintain an aid scheme specific to the European Union coal industry comparable to that introduced by Regulation No 1407/2002 and enabling, inter alia, the Member States to grant indigenous coal mines which are currently not profitable considerable amounts of long-term operating aid, when it clearly knows that it would be difficult to have such aid approved under the general State aid rules laid down in Articles 107 TFEU and 108 TFEU. In admitting explicitly that it has no objection to the parts of the contested decision other than Article 3(1)(a), (b) and (f) and Article 3(3), the applicant is thus seeking, ultimately, to enable the Kingdom of Spain to continue granting Spanish coal mines aid intended to cover current production losses on indigenous coal, without the overall amount of that aid having to follow a downward trend and the recipient mines being required to close permanently in accordance with a closure plan.
17 In those circumstances, it is appropriate to examine, first, whether the applicant has a legitimate interest in seeking, in the alternative, suspension of operation of the contested decision in its entirety. As the conditions of admissibility for any application for interim measures are a matter of public policy, it is for the judge hearing the application to ascertain of his own motion at the start of the procedure that they have been satisfied (order of the President of 18 February 2008 in Case T‑410/07 R Jurado Hermanos v OHIM (JURADO), not published in the ECR, paragraph 25, and order of the President of 25 April 2008 in Case T‑41/08 R Vakakis v Commission, not published in the ECR, paragraph 41).
18 According to settled case-law, the party seeking suspension of the measure it has challenged through an action for annulment must demonstrate that he has an interest in obtaining the relief sought, which presupposes that the suspension of the measure would in itself be liable to benefit the applicant directly (see, to that effect, order of the President in Case T‑306/01 R Aden and Others v Council and Commission [2002] ECR II‑2387, paragraph 57; order of the President of 12 May 2006 in Case T‑42/06 R Gollnisch v Parliament, not published in the ECR, paragraph 28; and Case T‑310/00 MCI v Commission [2004] ECR II‑3253, paragraph 44 and the case-law cited).
19 In the present case, it is established that, under Article 14(3) of Regulation No 1407/2002, that regulation expired on 31 December 2010. The expiry of that regulation – which introduced a specific scheme for granting State aid to the mining sector which accommodated the applicant’s aspirations so well that it asked for it to be extended (see paragraphs 4 and 5 above) – is in no way contingent upon the lawfulness or enforceability of the contested decision. Indeed, the expiry of Regulation No 1407/2002 was provided for in the regulation itself and not in the contested decision.
20 It follows that suspension of operation of the contested decision in its entirety, far from reviving the specific scheme introduced by Regulation No 1407/2002, would only have the effect, first, of suspending the operation of the new specific aid scheme, which also allows the Member States, although under much stricter conditions than under the previous scheme, to grant aid to cover current production losses for indigenous coal. Second, it would trigger the immediate application of the general scheme provided for in Articles 107 TFEU and 108 TFEU. Yet the applicant has not established, or even asserted, that that general scheme would enable the Kingdom of Spain to grant Spanish coal mines aid to cover current production losses for indigenous coal any more easily than it can do under the contested decision.
21 Consequently, suspension of operation of the contested decision in its entirety is of no practical use to the applicant and the coal mines it represents. It follows that the applicant has not demonstrated that it had a legitimate interest in obtaining such suspension.
22 Furthermore, it should be remembered that, by its main action, the applicant seeks annulment only of Article 3(1)(a), (b) and (f) and of Article 3(3) of the contested decision, with the result that the application for suspension of operation of that decision in it entirety goes beyond the formal scope of the main action. Under Article 278 TFEU, the judge hearing the application may order suspension of operation of the challenged measure only, whilst under Article 104(1) of the Rules of Procedure an application for suspension of operation is admissible only if the applicant has challenged the measure in question through an action before the Court. In those circumstances, the head of claim, put forward in the alternative, for suspension of operation of the contested decision in its entirety must also be declared inadmissible on grounds of lack of concordance with the main action, in that it goes beyond the subject-matter of the main action brought by the applicant (see, to that effect, order of the President of the Court of 8 September 2010 in Case T‑15/10 R II Noko Ngele v Commission, not published in the ECR, paragraphs 8 and 9).
23 That conclusion is not affected by the remark, in paragraph 6 of the application for interim measures, to the effect that the applicant ‘will not object to the annulment and hence suspension of the contested decision as a whole’, should the Court find that the pleas put forward in support of the main action should result in total annulment. It is not possible, in the context of an application for interim measures, to broaden the scope of the subject-matter in the main proceedings of which the interim proceedings form a part. Moreover, and in any event, such a broadening must be effected within the time-limits applicable to main actions. In the present case the contested decision was published in the Official Journal of the European Union of 21 December 2010, whereas the application for interim measures was lodged only on 7 November 2011, long after the time-limit for bringing an action had expired.
24 Accordingly, on the two grounds set out above, the alternative head of claim in the application for interim measures must be dismissed as inadmissible.
25 As regards the main head of claim in the application for interim measures, the Council argues that the applicant is not eligible to seek suspension of operation of Article 3(1)(a), (b) and (f) alone of the contested decision, on the ground that it may not be severed from the rest of that decision. In the Council’s submission, those provisions reflect the fundamental notion underlying the contested decision: that aid to the production of uncompetitive coal is no longer justified in order to alleviate the social and regional consequences associated with the closure of the coal mines in question.
26 According to settled case-law, partial annulment of a legal act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act (see, inter alia, Case C‑29/99 Commission v Council [2002] ECR I‑11221, paragraphs 45 and 46; Case C‑378/00 Commission v Parliament and Council [2003] ECR I‑937, paragraph 30; Case C‑239/01 Germany v Commission [2003] ECR I‑10333, paragraph 33; and Case C‑244/03 France v Parliament and Council [2005] ECR I‑4021, paragraph 12). The Court has repeatedly ruled that that requirement of severability is not satisfied in the case where the partial annulment of an act would have the effect of altering its substance, adding that the question of such a substantive alteration is an objective criterion and not a subjective criterion linked to the political intention of the authority which adopted the measure at issue (Case C‑36/04 Spain v Council [2006] ECR I‑2981, paragraphs 13 and 14 and the case-law cited).
27 The reasoning underlying that case-law – to prevent applicants from altering the very substance of a measure by challenging isolated elements of it, thereby obtaining de facto, through an action for annulment, the application of a measure which is substantively different from the one adopted by the relevant institution – holds entirely true in the context of an application for interim measures. It seems wholly unjustified to allow an applicant to distort a measure by obtaining suspension of operation of substantive provisions of it whilst allowing other provisions to be immediately applicable.
28 It should therefore be examined whether suspension of operation of Article 3(1)(a), (b) and (f) alone of the contested decision, with the other provisions of that decision continuing to exist, would objectively modify the substance of that decision.
29 As readily evidenced by the title of the contested decision, only aid to ‘facilitate the closure of uncompetitive coal mines’ is liable to be authorised. In recitals 2 to 4 of the contested decision, the Council states that the European Union’s policy no longer justifies aid being granted indefinitely to uncompetitive coal mines in order to ensure energy supply, with the result that the categories of aid authorised under Regulation No 1407/2002 should not be continued indefinitely and that those mines may be forced to close.
30 In recitals 5 to 7 of the contested decision, the Council, whilst allowing the Member States to adopt measures to alleviate the social and regional consequences associated with the closure of uncompetitive mines (gradual winding down of activities as part of an irrevocable closure plan and/or financing of exceptional costs), states that that type of aid should follow a downward trend and be strictly limited to coal production units that are irrevocably scheduled for closure. It concludes that the contested decision marks the transition, for State aid to the coal sector, from the application of sector-specific rules to the application of general rules.
31 Lastly, Article 2 of the contested decision, entitled ‘Principle’ and contained in the chapter dealing with ‘compatibility of the aid’, provides that it is only ‘in the context of closure of uncompetitive mines’ that aid to the coal industry may be considered compatible with the internal market, provided it complies with the provisions of the contested decision.
32 Thus the Council, in adopting the contested decision, introduced a scheme for authorising aid to the coal industry, the rationale for which is substantially different from that of Regulation No 1407/2002, in that the new scheme restricts aid liable to be authorised to aid to facilitate the smooth closure of uncompetitive indigenous coal mines.
33 In those circumstances, the conditions for authorisation laid down in Article 3(1)(a), (b) and (f) of the contested decision – according to which coal mines which have received closure aid granted by a Member State must close down definitively in accordance with a closure plan, the final deadline for which is fixed at 31 December 2018, whilst the overall amount of State aid granted must strictly follow a downward trend – cannot be considered as auxiliary elements which may be severed from the contested decision, but rather are the very essence of it. It follows that those authorisation conditions, irrespective of how appropriate or lawful they may be, are inseparable from the remainder of the contested decision.
34 Consequently, the applicant may not seek suspension of operation of only Article 3(1)(a), (b) and (f) of the contested decision.
35 This finding on admissibility is, moreover, consistent with the balancing of the interests at stake in the present case.
Balance of interests
36 It is settled case-law that, in balancing the different interests in a case, the judge hearing the application must consider, inter alia, whether or not the interest of the applicant in obtaining the suspension of operation requested outweighs the interest in the immediate application of the measure challenged, in determining, more specifically, whether the possible annulment of the decision by the Court giving judgment in the main action would make it possible to reverse the situation that would be brought about by its immediate implementation and, conversely, to what extent suspension would be such as to prevent the objectives pursued by the measure in the event of the main application being dismissed (see, to that effect, order of the President of 26 June 2003 in Joined Cases C‑182/03 R and C‑217/03 R Belgium and Forum 187 v Commission [2003] ECR I‑6887, paragraph 142, and order of the President of 31 August 2010 in Case T‑299/10 R Babcock Noell v Joint undertaking Fusion Energy, not published in the ECR, paragraph 64).
37 In the present case, the interest pursued by the Council through the contested decision, in particular Article 3(1)(a), (b) and (f), consists in implementing the new scheme for State aid to the European Union coal industry, which provides for closure of unprofitable coal mines by the end of 2018, and by a strictly downward trend in the overall amount of State aid granted to those mines, the grant of that aid being permitted only to alleviate the social and regional consequences associated with the closure of the mines in question. The adoption of the contested decision thus marks, in the medium term, a significant shift of policy on aid to unprofitable European Union coal mines, in that the previous scheme which allowed such mines to be subsidised in order to ensure energy supply for the European Union has been abandoned in favour of a scheme intended to adapt the coal sector gradually to the general rules of the TFEU applicable to all economic sectors. The judge hearing the application must take account of the general public interest associated with the implementation of a measure aimed at reintegrating into the TFEU competition rules, including the general rule prohibiting State aid laid down in Article 107(1) TFEU, an economic sector which for a long time benefited from a special set of rules.
38 It was, moreover, on the proposal from the Commission that the Council opted for this policy change. In the present case, the Commission was even granted leave, by order of 1 August 2011, to intervene in the present proceedings in support of the forms of order sought by the Council. Furthermore, both the European Parliament and the Kingdom of Spain refrained from bringing actions for annulment of the contested decision. According to the applicant, the Spanish Government is even planning to implement the contested decision by tabling a gradual plan for closure, to be applicable as from 2012 to unprofitable Spanish coal mines.
39 Thus all the ‘protagonists’, on whom Articles 107 TFEU to 109 TFEU confer a crucial role in the legislative or decision-making process in the area of supervision of State aid, have actively supported the adoption of the contested decision, or at least tolerated it. This is particularly true of the Kingdom of Spain, who is a ‘privileged interlocutor’ before the European Union courts for the purpose of defending the interests of the Spanish coal industry in this area (see, to that effect, order of the President of 18 March 2011 in Case T‑457/09 R Westfälisch-Lippischer Sparkassen- und Giroverband v Commission, not published in the ECR, paragraphs 71 to 73). The applicant’s role, by contrast, is limited to that of a source of information for those courts (see, to that effect, Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraphs 45 and 59, and Joined Cases T-371/94 and T-394/94 British Airways and Others and British Midland Airways v Commission [1998] ECR II-2405, paragraphs 59 and 60). It follows that the particular interest in obtaining partial suspension of operation of the contested decision pursued by the applicant in the present case cannot trump the general – diametrically opposed – public interest in seeing that decision implemented.
40 As regards, more specifically, the closure plan which the Spanish Government intends to implement in 2012 and which therefore introduces an even stricter scheme than that prescribed by the contested decision, the specific disagreement between the applicant and its national government concerning that issue is a matter of domestic law which is irrelevant for the outcome of the present dispute. Accordingly, the applicant is free, if it deems appropriate, to bring an action before the national courts to challenge that closure plan.
41 Lastly, it does not appear, at first glance, that dismissal of the application for interim measures would place the applicant in an irreversible situation in the event the contested decision should subsequently be annulled by the court dealing with the case on its merits. Although that decision has certain immediate effects – in that the operation of the coal mines concerned must form part of a closure plan with a horizon of 2018 (Article 3(1)(a) of the contested decision), the finalisation of which by the Spanish Government seems to be imminent and that, as from 2011, the overall amount of aid granted to those mines by the Spanish Government should not exceed the amount of aid granted and authorised for 2010 (Article 3(1)(g) of the contested decision) – it seems improbable, at the current stage of the proceedings, that those effects by themselves might threaten the existence of the applicant and its members, in either the short or the medium term.
42 As regards the provision to the effect that the overall amount of aid granted by a Member State must, by the end of 2013, be reduced by at least 25% in relation to the aid granted in 2011 (Article 3(1)(f) of the contested decision), all indications are that a decision will have been given in the main proceedings before that provision may have any serious impact on the situation of the applicant and its members. Should judgment be given in favour of the applicant’s claims, in the form of annulment of any reference to a closure plan and the downward trend of the overall amount of State aid granted, it would allow for a significant reversal of the situation caused by immediate implementation of the contested decision.
43 Consequently, the balance of the different interests in the case does not weigh in favour of the applicant.
44 It follows from all the foregoing that the application for interim measures must be dismissed, without its being necessary to consider whether the applicant has a legal interest in bringing proceedings for the purposes of the fourth paragraph of Article 263 TFEU, or whether the other conditions for granting the suspension of operation sought are satisfied.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 2 December 2011.