ORDER OF THE GENERAL COURT (Second Chamber)
10 December 2013 (*)
(Action for annulment – State aid – Decision on aid intended to facilitate the closure of uncompetitive coal mines – Partial annulment – Non-severability – Inadmissibility)
In Case T‑176/11,
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,
supported by
European Commission, represented by É. Gippini Fournier, L. Flynn and C. Urraca Caviedes, acting as Agents,
intervener,
APPLICATION for partial annulment 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),
THE GENERAL COURT (Second Chamber),
composed of M.E. Martins Ribeiro, President, S. Gervasoni (Rapporteur) and L. Madise, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
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 operators in Spain and their associations. In accordance with its statutes, its mission consists, inter alia, in representing its members before any institution or jurisdiction. All operators of coal mines in Spain, apart from one mine producing a small amount of coal, 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, 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, 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 aid to cover exceptional costs.
3 Under the scheme established by Regulation No 1407/2002, considerable investments were made in the Spanish mining sector, comprising 29 coal-producing mines, in order to keep them in operation and to improve their efficiency. Under the Spanish national plan for strategic coal reserves for the period 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, coal being 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 maintain sector viability.
4 Since Regulation No 1407/2002, in accordance with Article 14(3) thereof, expired on 31 December 2010, the Council adopted, on the basis of Article 107(3)(e) TFEU, 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).
5 Decision 2010/787 is based on the view that indefinite support for uncompetitive coal mines is no longer justified in the light of the small contribution of subsidised coal to the overall energy mix and the European-Union policy encouraging renewable energy sources (recitals 2 and 3 of the preamble to Decision 2010/787). That decision marks the transition, for the coal sector, from the application of sector-specific rules to the application of general State-aid rules which are applicable to all sectors (recital 6 of the preamble to Decision 2010/787).
6 Decision 2010/787 provides, therefore, that State aid to the coal sector can be authorised only until 2018, and then only if the coal production units to which aid is granted are closed definitively by that deadline. That aid must, accordingly, (i) form part of a closure plan for uncompetitive coal mines receiving the aid, the deadline of which cannot extend beyond 31 December 2018, (ii) be degressive and (iii) be strictly limited to coal production units that are irrevocably planned for closure (recitals 5 and 7 of the preamble to Decision 2010/787 and Articles 2 and 3 thereof).
7 Article 3 of Decision 2010/787, which features in Chapter 2 thereof dealing with the ‘compatibility of aid’, deals specifically with ‘closure aid’. Article 3 provides as follows:
‘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, at the latest by the end of the coal production year following the year for which the aid was granted;
(d) the amount of aid per tonne coal equivalent must not cause prices for Union coal at utilisation point to be lower than those for coal of a similar quality from third countries;
(e) the coal production units concerned must have been in activity on 31 December 2009;
(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, for any year after 2010, the amount of aid granted by that Member State and authorised by the Commission in accordance with Articles 4 and 5 of Regulation (EC) No 1407/2002 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 pursuant to this Article, for example in the field of energy efficiency, renewable energy or carbon capture and storage.
2. The inclusion of measures constituting State aid within the meaning of Article 107(1) [TFEU] 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 with respect to such measures by Article 108(3) [TFEU], 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 Court Registry on 14 March 2011, the applicant brought the present action.
9 By document lodged at the Court Registry on 10 June 2011, the European Commission sought leave to intervene in the present proceedings in support of the form of order sought by the Council. By order of 1 August 2011, the President of the Eighth Chamber of the Court granted the Commission leave to intervene.
10 By separate document lodged at the Court Registry on 14 July 2011, the Council raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the General Court. On 16 September 2011, the applicant lodged its observations on that objection of inadmissibility.
11 On 7 September 2011, the Commission lodged a statement in intervention limited to issues of admissibility. The applicant lodged its observations on that statement within the period allowed.
12 By a separate document lodged at the Court Registry on 13 October 2011, the applicant submitted an application for interim measures. By order of 2 December 2011, the President of the Court dismissed that application and reserved the costs.
13 Following the partial renewal of the General Court, the case was allocated to a new Judge-Rapporteur. That Judge-Rapporteur was subsequently assigned to the Second Chamber, to which this case was accordingly allocated.
14 The applicant claims, in essence, that the Court should:
– annul Article 3(1)(a), (b) and (f) and Article 3(3) of Decision 2010/787 (‘the contested provisions’);
– dismiss the objection of inadmissibility raised by the Council, supported by the Commission, and declare the action to be admissible;
– order the Council to pay the costs of the proceedings, except for those resulting from the Commission’s application to intervene, and order the Commission to pay the costs arising from that application.
15 The Council, supported by the Commission, claims that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
Law
16 Pursuant to Article 114(1) of the Rules of Procedure, the Court may, if a party so requests, rule on the question of admissibility without considering the merits of the case. Under Article 114(3), unless the Court otherwise decides, the remainder of the proceedings is to be oral. In the present case, the Court considers that the information in the documents before it is sufficient and that there is no need to proceed to the oral stage of the proceedings.
17 The Council, supported by the Commission, contends that the present action is inadmissible on the grounds that the contested provisions are inseparable from the remainder of Decision 2010/787 and that the applicant lacks standing to bring proceedings within the meaning of the fourth paragraph of Article 263 TFEU.
18 In support of the first plea of inadmissibility, the Council, supported by the Commission, contends that the contested provisions are inseparable from the remainder of Decision 2010/787. That decision, it is submitted, is based on the view, set out in recitals 2 to 5 of the preamble thereto, that aid for the production of uncompetitive coal is no longer justified and that only aid for the closure of uncompetitive coal mines can still be declared compatible with the internal market. According to the Council, supported by the Commission, the contested provisions, inasmuch as they lay down the conditions for authorisation of that aid, constitute the very essence of Decision 2010/787, with the result that their annulment would completely distort the measure’s substance and objectives. The applicant, which would be placed in a less favourable position if Decision 2010/787 were annulled in its entirety, is thus attempting to relax the framework under which aid is granted to the coal industry by removing any reference, in Decision 2010/787, to mine closures. Noting that the applicant is not seeking the annulment of Article 7(2) and (3) of Decision 2010/787, which also refer to the closure of uncompetitive coal mines, the Council also expresses uncertainty as to what the objective of Article 7(2) and (3) could be, and how those provisions might be interpreted, were the contested provisions annulled. The Commission adds that, by its application for partial annulment of Decision 2010/787, the applicant is in fact seeking to have that decision rewritten by substituting political choices made by the Council with other options that the applicant considers to be preferable.
19 The applicant takes issue with those arguments of the Council and the Commission on the ground that the contested provisions are severable from the remainder of Decision 2010/787. According to the applicant, Decision 2010/787 seeks to establish a sector-specific instrument under which aid can be granted to uncompetitive coal mines only on condition that they close down at the end of a defined period. A ‘provision by provision’ analysis must, it argues, be undertaken in order to assess whether the contested provisions are separable. According to the applicant, each one of the contested provisions can be separated from Decision 2010/787. In addition, the applicant takes the view that if its application for partial annulment were deemed inadmissible it would be compelled to seek annulment of Decision 2010/787 in its entirety even though partial annulment of that decision, which would relate to only the contested provisions, would be sufficient to remedy the illegality raised. Moreover, the applicant makes it clear that even though it expressly sought only partial annulment of Decision 2010/787, if the Court were to find that annulment of the contested provisions had to lead to the annulment of that decision in its entirety that outcome would also be acceptable for it.
20 In the light of the arguments submitted by the applicant in its observations on the objection to admissibility raised by the Council and, in particular, the clarification that it would not be opposed to Decision 2010/787 being annulled in its entirety, the extent of the application for annulment brought by the applicant must first be established before the main issue of whether the application is admissible is examined. It is only in the event that the present action actually seeks partial annulment of Decision 2010/787, in respect of the contested provisions alone, that it will be necessary to examine the first plea of inadmissibility raised by the Council, supported by the Commission.
21 In that respect, it should be borne in mind that, as provided in Article 21 of the Statute of the Court of Justice of the European Union and in Article 44 of the Rules of Procedure, the application initiating proceedings must indicate, inter alia, the subject-matter of the dispute and contain the form of order sought by the applicant. Thus, only the form of order set out in the originating application may be taken into consideration (Case 83/63 Krawczynski v Commission [1965] ECR 623, at p. 633).
22 In addition, a claim put forward for the first time in the reply modifies the original subject-matter of the application and must therefore be regarded as constituting a new claim and rejected as being inadmissible (see Case T‑210/00 Biret et Cie v Council [2002] ECR II‑47, paragraph 49 and the case-law cited). That reasoning also applies where the initial subject-matter of the application is modified in observations on an objection to admissibility (order in Case T‑406/03 Ravailhe v Committee of the Regions [2005] ECR‑SC I‑A‑19 and II‑79, paragraph 53).
23 In the present case, it is clear from the unequivocal terms of the application that the applicant expressly intended to limit its application for annulment to the contested provisions by ‘request[ing] the General Court to partially annul [Decision 2010/787]’ and stating that ‘[it] does not object to the remaining parts of [Decision 2010/787]’. In addition, the applicant also confirmed, in its observations on the plea of inadmissibility raised by the Council, that ‘[it] did not expressly ask for a total annulment of [Decision 2010/787]’.
24 In those circumstances, it must be concluded that the subject-matter of the present dispute is the application for partial annulment of Decision 2010/787.
25 That conclusion is not undermined by the clarification, presented by the applicant in its observations on the objection to admissibility and in its observations on the Commission’s statement of intervention limited to issues of admissibility, that, first, annulment of Decision 2010/787 in its entirety ‘would be acceptable for [it]’ and, second, ‘[i]f the General Court were to conclude that the annulment of one or all of the Contested Provisions would inevitably lead to the total annulment of [Decision 2010/787], then the Applicant would accept this’, or by the claim, made by the applicant in its observations on the objection to admissibility, that certain pleas which it had put forward in the application could, in theory, result only in that decision being annulled in its entirety.
26 First of all, in so far as the applicant intends, by that clarification, to amend its original form of order, on the one hand, it must be held that such an amendment is, in the light of the case-law cited at paragraph 22 above, inadmissible inasmuch as the form of order sought must be set out in the originating application. On the other hand, even if the applicant were able to introduce a new form of order in the course of the proceedings, such an extension of the subject-matter of the dispute must in any event be presented, in general, within a period of two months, as provided for in the sixth paragraph of Article 263 TFEU. The applicant, however, amended its original form of order in the observations on the objection to admissibility which it lodged at the Court Registry on 16 September 2011, and thus in any event after the expiry of the abovementioned period, given that Decision 2010/787 was published in the Official Journal of the European Union of 21 December 2010.
27 Second, in so far as, by that clarification, the applicant requests the Court to rule at its absolute discretion on the extent of a possible annulment of Decision 2010/787, suffice it to recall that it is for the applicant, not the Court, to specify the subject-matter of the dispute by setting out, in its application, the form of order which it seeks. In addition, where, in an application, the form of order seeks partial annulment of an act of an institution, the Court, in the event that it is required to grant the order sought by the applicant, cannot annul that act in its entirety. Since it would be ultra vires for the European Union Court before which an action for annulment has been brought to rule ultra petita, the scope of the annulment which it pronounces cannot go further than that sought by the applicant (see Case C‑310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I‑5363, paragraph 52 and the case‑law cited).
28 Finally, in the light of the clarity of the applicant’s claim for annulment and the case-law set out in the preceding paragraph, it is also irrelevant, assuming it were established, that, as the applicant claims, certain pleas which it put forward in the application could result in Decision 2010/787 being annulled in its entirety.
29 In those circumstances, it must be held that the present action seeks annulment only of the contested provisions of Decision 2010/787 and, therefore, partial annulment of that decision.
30 In the light of the foregoing, it is principally necessary to examine the first plea of inadmissibility raised by the Council, supported by the Commission, to the effect that the contested provisions are inseparable from the remainder of Decision 2010/787.
31 In that regard, it must be recalled that, as follows from well-established case-law, partial annulment of a European Union act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act (Case C‑29/99 Commission v Council [2002] ECR I‑11221, paragraph 45, and Case C‑244/03 France v Parliament and Council [2005] ECR I‑4021, paragraph 12). Similarly, the Court of Justice has repeatedly held 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 (Joined Cases C‑68/94 and C‑30/95 France and Others v Commission [1998] ECR I‑1375, paragraph 257; Commission v Council, paragraph 46; and France v Parliament and Council, paragraph 13).
32 In the present case, as was established in paragraph 29 above, the applicant is seeking annulment of the contested provisions only. In those circumstances, it is necessary to examine whether those provisions are, in the light of their scope, severable from the remainder of Decision 2010/787 by determining whether their annulment would alter the spirit and substance of that decision (see, to that effect and by analogy, Case C‑540/03 Parliament v Council [2006] ECR I‑5769, paragraph 29).
33 In that regard it should be noted, in the first place, that, by adopting Decision 2010/787, the Council established a State aid authorisation scheme for the coal industry the rationale of which differs substantially from that of Regulation No 1407/2002, inasmuch as that new scheme limits the aid which may be authorised to that which is designed to facilitate the closure of uncompetitive indigenous coal mines. As the applicant also acknowledges in its observations on the objection to admissibility raised by the Council, the purpose of Decision 2010/787 is to establish a specific legal framework for the granting of aid for the closure of uncompetitive coal mines.
34 First of all, as is clear from the title of Decision 2010/787, only ‘State aid to facilitate the closure of uncompetitive coal mines’ may be authorised. Second, at recitals 2 to 4 of the preamble to Decision 2010/787, the Council states that the European Union’s policy no longer justifies indefinite support for uncompetitive coal mines for the purposes of securing the supply of energy in the European Union, meaning that the categories of aid authorised by Regulation No 1407/2002 should not be continued indefinitely and that those mines may be forced to close. In addition, at recitals 5 and 7 of the preamble to Decision 2010/787, the Council, while stating that the Member States should be able to take measures to alleviate the social and regional consequences of the closure of uncompetitive mines (the orderly winding-down of activities in the context of an irrevocable closure plan and/or the financing of exceptional costs), makes it clear that such aid should be degressive and strictly limited to coal production units that are irrevocably planned for closure. It adds, at recital 6 of the preamble to Decision 2010/787, that that decision marks the transition, as regards State aid for the coal sector, from the application of sector-specific rules to the application of general rules. Finally, Article 2 of Decision 2010/787, entitled ‘Principle’ and contained within the chapter dealing with the ‘compatibility of 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, on condition that it satisfies the provisions of Decision 2010/787.
35 In the second place, as regards the scope of the contested provisions, it must be noted that Article 3 of Decision 2010/787 specifically concerns closure aid. Thus, Article 3(1) sets out the conditions under which aid intended to cover the current production losses of coal production units may be considered compatible with the internal market (see paragraph 7 above). In particular, Article 3(1)(a), (b) and (f) requires the adoption of a closure plan the deadline of which cannot extend beyond 31 December 2018, definitive closure of the coal production units concerned in accordance with that closure plan, and a gradual reduction in the overall amount of closure aid granted. Article 3(3) of Decision 2010/787 also imposes on Member States the obligation to recover aid where the coal production units to which aid is granted under Article 3(1) are not closed at the date laid down in the closure plan as authorised by the Commission.
36 It follows that the contested provisions of Decision 2010/787 are those which, in accordance with the purpose of that decision, specifically limit the aid that may be granted for coal production to aid for the closure of uncompetitive coal mines only, since, under those provisions, the granting of aid is conditional on the existence of a closure plan, on actual closure of the mines receiving the aid – on pain of recovery of the aid – and on the progressive reduction of the aid.
37 Accordingly, contrary to what the applicant claims in its observations on the objection to admissibility raised by the Council, the contested provisions are intrinsically linked to the very substance of Decision 2010/787.
38 In those circumstances, partial annulment of Decision 2010/787, as requested by the applicant, would result in that decision, under which State aid to the coal sector can be authorised only until 2018 – and then only if the production units receiving the aid are definitively closed by that deadline – being replaced by a different decision under the terms of which such aid could be authorised without any limitation in time and on conditions which are significantly broader that those contained in Decision 2010/787.
39 Moreover, partial annulment of Decision 2010/787, as requested by the applicant, would still leave intact the requirement, in Article 7(2) and (3) of that decision, for the Member States which intend to grant closure aid, within the terms of Article 3 of that decision, to notify a closure plan, as well as any alteration to that plan, to the Commission. As it is, Article 7 of Decision 2010/787 would serve no purpose in the absence of Article 3 thereof. Consequently, apart from the fact that such partial annulment would alter the very substance of Decision 2010/787, it would also make it incoherent.
40 In the light of the foregoing considerations, it must be concluded that the contested provisions are not severable from the remainder of Decision 2010/787.
41 That conclusion is not brought into question by the applicant’s arguments.
42 In the first place, the applicant claims that the each of the contested provisions should be examined individually in order to determine whether it is separable. According to the applicant, each of those provisions is severable from the remainder of Decision 2010/787. First, it submits, since, according to the judgment in Case T‑380/06 Vischim v Commission [2009] ECR II‑3911, paragraph 54, ‘there is nothing to prevent the legality of a [European Union] act from being put in issue only as regards its temporal effects’, Article 3(1)(a) of Decision 2010/787 could be annulled separately without affecting the substance of that decision. Second, the applicant contends that Article 3(1)(b) of Decision 2010/787 is unlawful in so far as it provides for the definitive closure of the beneficiary coal mine by the deadline laid down in the closure plan and ‘can be separated from the remainder of [Decision 2010/787] without altering its substance or objectives’. Third, the applicant claims that, since Article 3(1)(f) of Decision 2010/787 deals only with the modalities for the implementation of the closure aid, it does not, as follows from the judgment in Case C‑239/01 Germany v Commission [2003] ECR I‑10333, paragraph 37, affect its substance or objectives. Fourth, Article 3(3) of Decision 2010/787 could ‘be clearly severed from the remainder of [that decision]’ given that that provision ‘does not affect the scope of the provisions under which closure aid can be granted’.
43 Even if it were necessary, as the applicant claims, to carry out an individual analysis of the severability of each of the provisions annulment of which is sought, it should be noted that the arguments submitted by the applicant to show that each of the contested provisions is severable from Decision 2010/787 are not capable of calling into question the finding, made at paragraph 40 above, that those provisions are not separable from the remainder of Decision 2010/787.
44 First of all, as regards the provisions of Article 3(1)(b) and Article 3(3) of Decision 2010/787, the applicant merely claims that they are severable from that decision, without, however, putting forward any argument in support of that contention.
45 Second, as regards Article 3(1)(a) of Decision 2010/787, under which the granting of aid is conditional on the operation of the coal production units concerned forming part of a closure plan the deadline of which cannot extend beyond 31 December 2018, the judgment in Vischim v Commission, referred to in paragraph 42 above, cited by the applicant, cannot be used to support, by analogy, the argument that that provision is severable from the remainder of Decision 2010/787. The case-law of the Court of Justice to which the General Court makes reference in that case (Case C‑368/89 Crispoltoni [1991] ECR I‑3695 and Joined Cases C‑260/91 and C‑261/91 Diversinte and Iberlacta [1993] ECR I‑1885) deals with the issue of whether it is possible to challenge the retroactive effect of the provisions of a given act, the annulment of such provisions not having in fact any impact on the future effects of that act (judgment of 12 April 2013 in Case T‑31/07 Du Pont de Nemours (France) v Commission, not published in the ECR, paragraph 101). Accordingly, in the case which gave rise to the judgment in Vischim v Commission, referred to in paragraph 42 above, the Court was dealing with an application for annulment of a provision of the contested act in question which defined the temporal scope of that act and, more specifically, its retroactive effect (Vischim v Commission, cited in paragraph 42 above, paragraph 51). Those circumstances, however, differ from those at issue in the present case inasmuch as Article 3(1)(a) of Decision 2010/787 does not define the temporal scope of that decision but makes the granting of closure aid conditional on the existence of a closure plan the deadline of which cannot extend beyond 31 December 2018. While annulment of that provision would indeed permit aid to be granted beyond 31 December 2018, the fact remains that it would also result in authorising, from the entry into force of Decision 2010/787, aid to be granted in the absence of the implementation of a closure plan.
46 Finally, as regards Article 3(1)(f) of Decision 2010/787, that provision provides that the granting of closure aid is conditional on a gradual decrease in the amount of that aid. It follows that the gradual decrease of the aid is not a simple modality for granting the aid, as the applicant claims, but is in fact a condition which determines whether the aid is compatible with the internal market. First, Article 3(1)(f) of Decision 2010/787 thus differs from the provision at issue in the case which gave rise to the judgment in Germany v Commission, referred to in paragraph 42 above (paragraphs 35 to 37), cited by the applicant, since, in that case, the provision at issue, which the Court of Justice held could be severed from the remainder of the regulation in question, related specifically and exclusively to the financing rules of the scheme introduced by that regulation. Second, in any event, the condition set out in Article 3(1)(f) of Decision 2010/787 is intrinsically linked to the very purpose of that decision, which is to limit aid granted to the coal sector to closure aid alone. According to recital 7 of the preamble to that decision, ‘[i]n order to minimise the distortion of competition in the internal market resulting from [closure aid], such aid should be degressive and strictly limited to coal production units that are irrevocably planned for closure’.
47 In the second place, the applicant contends that a rejection of an application for partial annulment of a European Union act as being inadmissible, in the case where the provisions annulment of which is sought are manifestly unlawful, would allow the administration to construct its acts in such a way as to shield them from all threat of partial annulment and would compel the applicant to seek annulment of the act in its entirety even though partial annulment would be sufficient to remedy the illegality raised.
48 Without there even being any need to rule on the manifest illegality of the contested provisions, it must be observed that that argument of the applicant is at variance with the case-law cited in paragraph 31 above, according to which partial annulment of an act is possible only in so far as the elements which it is sought to have annulled may be severed from the remainder of the act. That case-law is justified by the consideration that the European Union Courts cannot be requested, in the guise of an application for partial annulment of an act of an institution, to replace the contested act with a new one which is substantially different. In addition, it is not for the European Union Courts to give a ruling which goes beyond the form of order sought before them.
49 Third, the applicant adds that, in the circumstances of the present case, an application for annulment of Decision 2010/787 in its entirety would be disproportionate to the objective sought by it, which is merely ‘to ensure that specific modalities of the closure aid, as provided by [Decision 2010/787], would be lawful’.
50 In that regard, first of all, the intention of the applicant when it brings an application seeking partial, rather than total, annulment of a European Union act cannot be allowed to undermine settled case-law according to which partial annulment is possible only in so far as the provisions the annulment of which is sought are severable from the remainder of the act at issue. Second, and in any event, the contested provisions do not merely define the ‘specific modalities’ of the closure aid, but constitute the provisions pursuant to which the granting of aid is subject to the existence of a closure plan and to the actual closure of the production units in receipt of the aid by the deadline laid down in that plan or by 31 December 2018 at the latest, since, alongside that latter condition, there is a requirement to recover the aid in cases where those units have not been closed by the deadline laid down.
51 In the light of the foregoing, the first plea of inadmissibility raised by the Council, and supported by the Commission, must be upheld and the action dismissed as being inadmissible, without there being any need to examine the second plea of inadmissibility raised by the Council, supported by the Commission, alleging that the applicant lacks standing to bring proceedings.
Costs
52 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, in accordance with the form of order sought by the Council, be ordered, in addition to bearing its own costs, to pay the costs incurred by the Council, including those relating to the proceedings for interim measures.
53 In accordance with Article 87(4) of the Rules of Procedure, the Commission must bear its own costs.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
1. The action is dismissed as being inadmissible.
2. The Federación Nacional de Empresarios de Minas de Carbón (Carbunión) shall, in addition to bearing its own costs, pay the costs incurred by the Council of the European Union, including those relating to the proceedings for interim measures.
3. The European Commission shall bear its own costs.
Luxembourg, 10 December 2013.
E. Coulon | | M.E. Martins Ribeiro |