OPINION OF ADVOCATE GENERAL
PIKAMÄE
delivered on 2 March 2023 (1)
Joined Cases C‑73/22 P and C‑77/22 P
Grupa Azoty S.A.,
Azomureș SA,
Lipasmata Kavalas LTD Ypokatastima Allodapis
v
European Commission (C‑73/22 P)
and
Advansa Manufacturing GmbH,
Beaulieu International Group,
Brilen, SA,
Cordenka GmbH & Co. KG,
Dolan GmbH,
Enka International GmbH & Co. KG,
Glanzstoff Longlaville,
Infinited Fiber Company Oy,
Kelheim Fibres GmbH,
Nurel, SA,
PHP Fibers GmbH,
Teijin Aramid BV,
Thrace Nonwovens & Geosynthetics monoprosopi AVEE mi yfanton yfasmaton kai geosynthetikon proïonton,
Trevira GmbH
v
Dralon GmbH,
European Commission (C‑77/22 P)
(Appeal – State aid – Guidelines on certain State aid measures in the context of the system for greenhouse gas emission allowance trading post-2021 – Eligible sectors – Exclusion of the fertiliser manufacturing sector – Actions for annulment – Concept of ‘challengeable measure’)
1. These joined cases concern the appeals by which the appellant undertakings are seeking to have set aside the orders of the General Court of the European Union of 29 November 2021, Grupa Azoty and Others v Commission (T‑726/20, not published), and of 29 November 2021, Advansa Manufacturing and Others v Commission (T‑741/20, not published) (‘the orders under appeal’), by which the General Court dismissed as inadmissible their actions for partial annulment of the Communication from the Commission of 25 September 2020 entitled ‘Guidelines on certain State aid measures in the context of the system for greenhouse gas emission allowance trading post-2021’ (‘the guidelines at issue’). (2)
2. The Court will have an opportunity to provide extremely important clarifications concerning the interpretation of certain conditions governing the admissibility of actions brought by individuals before the General Court, namely the concept of ‘challengeable measure’ and the requirement of direct concern, as well as the relationship between those two conditions.
Background to the disputes
3. Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the European Union and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32) established a system for greenhouse gas emission allowance trading within the European Union (‘the EU ETS’) in order to promote reductions of those emissions in a cost-effective and economically efficient manner. That directive was amended, inter alia, by Directive (EU) 2018/410 of the European Parliament and of the Council of 14 March 2018 amending Directive 2003/87 (OJ 2018 L 76, p. 3), with the aim, inter alia, of improving and extending the EU ETS for the 2021-2030 period.
4. Article 10a(6) of Directive 2003/87, as amended by Directive 2018/410, is worded as follows:
‘Member States should adopt financial measures in accordance with the second and fourth subparagraphs in favour of sectors or subsectors which are exposed to a genuine risk of carbon leakage due to significant indirect costs that are actually incurred from greenhouse gas emission costs passed on in electricity prices, provided that such financial measures are in accordance with State aid rules, and in particular do not cause undue distortions of competition in the internal market. …’
5. The guidelines at issue replace, from 1 January 2021, the Communication of 5 June 2012 entitled ‘Guidelines on certain State aid measures in the context of the greenhouse gas emission allowance trading scheme post-2012’ (OJ 2012 C 158, p. 4).
6. The Commission states in paragraph 7 of the guidelines at issue that it sets out in those guidelines the conditions under which aid measures in the context of the EU ETS may be considered compatible with the internal market under Article 107(3)(c) TFEU.
7. In paragraph 9 of the guidelines at issue, the Commission states that the principles set out in those guidelines ‘apply only to the specific aid measures provided for in Articles 10a(6) and 10b of the Directive 2003/87/EC’.
8. Paragraph 21 of the guidelines at issue states:
‘To limit the risk of competition distortion within the internal market, the aid must be limited to sectors that are exposed to a genuine risk of carbon leakage due to significant indirect costs that are actually incurred as a consequence of greenhouse gas emission costs being passed on in electricity prices. For the purpose of these Guidelines, a genuine risk of carbon leakage is considered to exist only if the beneficiary is active in a sector listed in Annex I.’
9. The appellants, Grupa Azoty S.A., Azomureș SA and Lipasmata Kavalas LTD Ypokatastima Allodapis, are undertakings which are active in the sector of the manufacture of fertilisers and nitrogen compounds, currently falling under the NACE code 20.15.
10. That sector is not on the list in Annex I to the guidelines at issue, although it was included on the list in Annex II to the 2012 guidelines, which were applicable until 31 December 2020.
The procedures before the General Court and the orders under appeal
11. By applications lodged at the Registry of the General Court on 15 and 16 December 2020, the appellants brought actions for annulment of Annex I to the guidelines at issue under Article 263 TFEU.
12. By the orders under appeal, the General Court declared those actions inadmissible.
13. The General Court recalled, in paragraph 26 of those orders, that the admissibility of an action brought by natural or legal persons against an act which is not addressed to them, in accordance with the fourth paragraph of Article 263 TFEU, is subject to the condition that they be accorded standing to bring proceedings, which arises in two situations. First, such proceedings may be instituted if the act is of direct and individual concern to those persons. Secondly, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them.
14. It concluded, in paragraph 27 of the orders, that it was necessary to examine whether the appellants, which are not addressees of the guidelines at issue, fall within either of those two situations. Since both the situations are conditional on the appellants being directly concerned by the contested act, the General Court considered that this condition should be examined first.
15. In that regard, the General Court recalled, in paragraph 29 of those orders, that the condition that a natural or legal person must be directly concerned by the act against which the action is brought requires two cumulative criteria to be met, namely, first, the contested act must directly affect the legal situation of the individual and, secondly, it must leave no discretion to its addressees which are entrusted with the task of implementing it, such implementation being purely automatic and resulting from the EU rules alone without the application of other intermediate rules.
16. According to the General Court, the guidelines at issue do not directly affect the appellants’ legal situation.
17. In support of that assessment, the General Court stated in particular, in paragraphs 40 to 42 of the orders under appeal, that the fact that a genuine risk of carbon leakage has been regarded in the guidelines at issue as existing only where the beneficiary of the aid is active in one of the sectors listed in Annex I to those guidelines does not preclude Member States, from a legal point of view – even though for reasons of expediency this is unlikely to occur – from notifying the Commission of aid measures in favour of undertakings which are active in sectors other than those listed in that annex and from being able to attempt to show that, despite the non-fulfilment of one of the criteria laid down in the guidelines, aid to those undertakings complies with Article 107(3)(c) TFEU. Whilst recognising that in such a case it is very probable that the Commission would adopt, on the basis of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9), a decision finding the intended State aid to be incompatible with the internal market, the General Court held that only that decision would be capable of having direct legal effects on the undertakings that ought to have benefited from the State aid and, in so far as it is thus of direct concern to those undertakings, could be the subject of an action for annulment brought by them.
18. The General Court also pointed out, in paragraph 38 of the orders under appeal, that if a Member State decides not to adopt any aid measure covered by the guidelines at issue, the Commission would not take any decision under Regulation 2015/1589. Accordingly, in this situation too, the guidelines do not directly affect the appellants’ legal situation.
Forms of order sought
19. By their appeals, the appellants claim that the Court should:
– set aside the orders under appeal;
– declare the actions admissible;
– in the alternative, set aside the orders under appeal on the sole ground that the General Court should have reserved the decision on admissibility until consideration of the merits of the action;
– refer the cases back to the General Court for consideration on the merits;
– order the Commission to pay the costs of these proceedings; and
– reserve the question of the costs of the proceedings before the General Court once it has completed its consideration of the merits.
20. The Commission contends that the Court should:
– dismiss the appeals; and
– order the appellants to pay the costs;
– in the alternative, were the Court to set aside the orders under appeal, rule itself on the actions by dismissing them as inadmissible and order the appellants to pay the costs.
21. By decision of the President of the Court of 16 September 2022, Cases C‑73/22 P and C‑77/22 P were joined for the purposes of any oral part of the procedure and the judgment.
The appeal
22. The present appeal is based on two grounds. The first alleges that the statement of reasons in the orders under appeal is inadequate, while by the second the appellants assert that the General Court erred in law in finding that they are not directly concerned by the guidelines at issue and, in the alternative, that the General Court should have considered the actions on the merits before ruling on their admissibility.
23. At the request of the Court, this Opinion will cover only the second ground.
Argument of the parties
24. According to the appellants, the assessment of direct concern in the orders under appeal is based on three irrelevant or even incorrect assumptions.
25. First, the General Court proceeded on the assumption that from the perspective of Article 263 TFEU all Commission guidelines must be characterised in the same manner, which reflects an incorrect approach. In this regard, the General Court wrongly relied on precedents relating to guidelines which allow discretion or lay down exceptions on which Member States may rely. Furthermore, the General Court considered that the guidelines at issue are binding only on the Commission. In doing so, it failed to recognise that they were published in the Official Journal of the European Union, Series C, that they are addressed directly to the Member States, do not allow the Member States any discretion or provide for any exceptions as regards the economic sectors eligible for aid which may be granted under Article 10a(6) of Directive 2003/87, as amended by Directive 2018/410, and that, by including mandatory wording, their purpose is to operate as prescriptive law.
26. Second, the General Court wrongly relied on the possibility for a Member State to notify the Commission of aid measures in favour of undertakings active in sectors other than those listed in Annex I to the guidelines at issue and to attempt to show that those measures are nevertheless compatible with the internal market under Article 107(3)(c) TFEU. The appellants note in this regard that, while it is true that this possibility exists in law, this does not alter the fact that the guidelines at issue preclude the grant of aid under Article 10a(6) of Directive 2003/87, as amended by Directive 2018/410, to economic operators active in sectors not mentioned in Annex I. This preclusion is certainly not counterbalanced by the general possibility of awarding State aid under Article 107(3)(c) TFEU. Any expectation as to the grant of such aid is purely speculative, while the aid referred to in Article 10a(6) of Directive 2003/87, as amended by Directive 2018/410, is formally provided for and encouraged by that provision.
27. Third, the General Court relied on the incorrect assumption that an economic operator can be directly concerned only where the Commission adopts a decision under Regulation 2015/1589. The appellants are thus left with no legal remedy. Since Member States are not under an obligation to establish an aid scheme under Article 10a(6) of Directive 2003/87, as amended by Directive 2018/410, it is plausible that no notification is made and no Commission decision is therefore adopted. This situation, in which no aid is granted to the appellants, is identical to the situation where an aid scheme including the sector of the manufacture of nitrogen compounds and fertilisers, which is established under Article 10a(6) and notified to the Commission, is the subject of an adverse decision by the Commission. However, the difference is that in the former situation there is no legal remedy available to the appellants, while in the latter there is, which is unacceptable as in both scenarios the appellants are affected in the same way.
28. In the alternative, the appellants claim that the Court should set aside the orders under appeal on the ground that the General Court should have considered the actions on the merits before ruling on their admissibility.
29. The Commission disputes those arguments in their entirety.
Assessment
30. In this Opinion, my reasoning will be structured as follows: after making some preliminary remarks, I will, first, set out the reasons why I consider that the guidelines at issue cannot be characterised as a ‘challengeable measure’ and, as such, constitute a measure against which an action may be brought under Article 263 TFEU. Second, I will argue that the examination to ascertain whether the requirement of direct concern is satisfied cannot be effectively carried out in the case of an instrument like the guidelines at issue, which confirms the interpretation that they are not challengeable. Third, I will explain why the reasoning adopted in the judgment in Deutsche Post and Germany v Commission (3) is not applicable to the guidelines at issue. Fourth, I will show that the General Court was not under any obligation to consider the actions on the merits before ruling on their admissibility.
Preliminary remarks
31. The issue of admissibility of actions brought by legal persons in the field of State aid law, as raised before the Court of Justice, has, as far as I am aware, thus far concerned only actions brought against Commission decisions adopted as a result of a preliminary examination (Article 4 of Regulation 2015/1589) or closing the formal investigation procedure (Article 9 of Regulation 2015/1589) and determining whether an aid measure which has been proposed and notified, or granted in the absence of notification, constitutes State aid for the purposes of Article 107(1) TFEU and, as the case may be, whether such a measure is compatible with the internal market on the basis of one of the justifications set out in Article 107(2) and (3) TFEU.
32. The legal question raised by the present ground, which relates specifically to the possibility of challenging Commission guidelines, is therefore unprecedented for the Court and is, moreover, undoubtedly sensitive as far as it concerns access to justice at EU level.
33. With the orders under appeal this is the third time that the General Court has ruled on this question. On the previous two occasions, (4) it followed the same legal reasoning as was set out in the present case, which makes it all the more important for the Court of Justice to take a view in its forthcoming judgment on whether that reasoning is correct.
34. Regard must be had to the relevant context. Article 108(3) TFEU establishes a prior control of plans to grant new aid (and alterations to existing aid). The aim of this preventive mechanism is to ensure that only measures compatible with the internal market are put into effect. The assessment of the compatibility of those measures with the internal market under Article 107(3) TFEU falls within the exclusive competence of the Commission, subject to review by the Courts of the European Union. In this regard, the Commission enjoys wide discretion, the exercise of which involves economic and social assessments, and is thus entitled to establish criteria on the basis of which it intends to assess the compatibility with the internal market of aid measures proposed by the Member States.
35. To that end, the Commission makes extensive use in its administrative practice of soft law instruments, such as guidelines, frameworks and notices, in order to structure the exercise of its discretion. As has been acknowledged by the Court, (5) those instruments contribute to ensuring that the action taken by the Commission is transparent, foreseeable and consistent with legal certainty.
36. The instruments in question contain horizontal rules governing particular categories of aid (including regional aid; aid for research, development and innovation; aid for rescuing and restructuring firms in difficulty); rules concerning specific aid instruments (for guarantees, taxation, short-term export credit insurance); sectoral rules (including in the agriculture, energy and environment, finance and media sectors); and rules on aid to support the economy in the context of the outbreak of the COVID-19 pandemic and following the Russian Federation’s attack on Ukraine. The guidelines at issue contain sectoral rules concerning aid in the context of the system for greenhouse gas emission allowance trading.
The guidelines at issue do not constitute a challengeable measure
37. As has already been mentioned above, in the orders under appeal the General Court examined only whether the appellants were directly concerned by the guidelines at issue in order to determine whether the appellants had the necessary standing to bring proceedings against the measure in dispute. The exchange of written pleadings between the appellants and the Commission in these proceedings focused on this legal question.
38. I am nevertheless convinced that in its forthcoming judgment the Court of Justice should first ascertain whether, in accordance with the relevant case-law, the guidelines at issue constitute a measure against which an action may be brought under Article 263 TFEU, that is to say, a ‘challengeable measure’. It should be recalled that since the question whether the guidelines are challengeable relates to the admissibility of the action for annulment brought before the General Court, it constitutes a question of public policy which the Court of Justice, hearing an appeal, is required to raise of its own motion. (6)
39. According to settled case-law, any measures adopted by the EU institutions, whatever their form, which are intended to have binding legal effects are regarded as challengeable measures, while those effects must be assessed on the basis of objective criteria, such as the content of the measure in question, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the measure. (7) It is also established, according to the Court’s case-law, that where the applicant is a natural or legal person, the remedy is available only if the binding legal effects are capable of affecting the interests of the applicant by bringing about a distinct change in his, her or its legal position. (8) In other words, in this case only a measure which has binding legal effects on the legal situation of the applicant is challengeable.
40. On this basis, it does not appear that an action for annulment may be brought against the guidelines at issue by the appellants under Article 263 TFEU.
41. As a preliminary point, the normative force stemming from the exhaustive nature of the list in Annex I to the guidelines at issue does not mean that those guidelines constitute a challengeable measure. If, as I will endeavour to demonstrate in this Opinion, the guidelines at issue are not capable of having binding legal effects on the legal situation of the appellants, there is no need, as has been explained above, to consider the content of that measure (or the context in which it was adopted).
42. It should be pointed out in this regard, first, that in its case-law relating to State aid the Court has already defined the effect of guidelines, holding that where the Commission adopts rules of conduct and announces by publishing them that they will apply to the cases to which they relate, the Commission imposes a limit on the exercise of its aforementioned discretion and cannot depart from those rules under pain of being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations. (9) In other words, that effect is a limitation on the exercise of the discretion enjoyed by the Commission itself. The latter is thus obliged to approve aid measures which comply with the provisions of the guidelines and may not depart from them unless it gives a valid reason to do so (a mechanism known as ‘comply or explain’). Failing that, infringement of the rules laid down by the Commission itself could result in a breach of the abovementioned general principles.
43. Second, in the judgment in Kotnik and Others (10) the Court stated that the effect of the guidelines is equivalent to the effect of a self-imposed limitation on the Commission’s discretion, rejecting the argument that they have de facto binding effects on the Member States, as it would be at the very least improbable that a Member State notifies an aid measure which does not satisfy the requirements laid down by the guidelines, thereby risking a possible negative decision by the Commission on the implementation of that measure. The Court found in this regard that the Member States retain the right to notify the Commission of proposed State aid which does not meet the conditions laid down by the guidelines and that the Commission may authorise such proposed aid in exceptional circumstances by direct application of Article 107(3) TFEU. (11)
44. The legal force accorded to guidelines is not therefore an inherent feature of them, under the case-law examined in the preceding two paragraphs, but is attached to their implementation in the Commission’s decision-making practice. In other words, only a decision by the Commission on the compatibility of an aid measure with the internal market is capable of generating binding legal effects on third parties.
45. It would appear that this understanding is supported by the case-law relating to antitrust guidelines. Whilst it is true that the Court held in Dansk Rørindustri and Others v Commission and Ziegler v Commission that ‘it cannot therefore be precluded that, on certain conditions and depending on their content, such rules of conduct of general application may produce legal effects’, (12) the fact remains that on those occasions the appellants were contesting the legality of a Commission decision in the light of the provisions of the guidelines at issue in those cases. The Court had therefore ruled on whether those provisions were part of the legal framework governing the adoption of the Commission decision and thus generated legal effects for that institution such that it could not depart from those provisions without being found in breach of general principles of EU law. (13)
46. By contrast, an interpretation recognising that the guidelines at issue are challengeable would be unconvincing in so far as it would mean that binding legal effects on third parties could precede the notification of the aid measure by the Member State concerned and its examination by the Commission in the administrative procedure. It thus seems questionable, at the very least, whether such an interpretation would be consistent with the fundamental principles governing State aid control, for two main reasons.
47. First, such an interpretation would not take adequate account of the central role of the notification in State aid control. In that regard it should be recalled that the notification requirement established by Article 108(3) TFEU is one of the fundamental features of the system of control put in place by the Treaties in this field. As the Court has previously stated, (14) that notification requirement is essential to enabling the Commission to exercise fully the supervisory function entrusted to it by Articles 107 and 108 TFEU in the field of State aid and, in particular, to assess, in the exercise of its exclusive competence, the compatibility of aid measures with the internal market under Article 107(3) TFEU.
48. I am not convinced by the argument that Member States are led to notify an aid scheme only in favour of undertakings operating in the sectors actually listed in Annex I, to the exclusion of the appellants, in so far as those States are encouraged, under Article 10a(6) of Directive 2003/87, as amended by Directive 2018/410, to introduce financial measures in favour of sectors exposed to a genuine risk of carbon leakage due to indirect costs (‘should’) and, furthermore, Annex I contains an exhaustive list of those sectors which does not include the sector in which the appellants are active. I note that recently the Court implicitly rejected the argument put forward in the Opinion of the Advocate General that the question whether a soft law instrument is challengeable depends solely on the ability of that instrument to bring about a modification of the behaviour of the addressees, without there being any need for it to have formally binding effects on them. (15)
49. Second, and most importantly, that interpretation would, in my view, effectively render meaningless the principle that guidelines may not affect the scope of primary law. It is not disputed that the Commission is bound by the frameworks and notices (as well as by the guidelines) that it issues in the field of State aid only in so far as those texts do not depart from the proper application of the rules in the Treaty, since the texts cannot be interpreted in a way which reduces the scope of Articles 107 and 108 TFEU or which contravenes the aims of those articles. (16)
50. The correct determination of the scope of Article 107 TFEU in a specific case cannot be guaranteed without the adoption of a Commission decision closing the administrative procedure (or a phase of that procedure) by which the Commission determines whether the factual and economic situation prevailing at the time of the adoption of its decision obliges it to depart from the provisions of the guidelines in order to comply with Articles 107 and 108 TFEU. (17)
51. In the light of the above considerations, I suggest that the Court take the view that the guidelines at issue do not constitute a challengeable measure against which an action may be brought under Article 263 TFEU.
The examination to ascertain whether the guidelines at issue satisfy the requirement of direct concern shows that they are not a challengeable measure
52. Once the requirement of ‘direct concern’ within the meaning of the fourth paragraph of Article 263 TFEU has been carefully broken down, the examination to ascertain whether that condition is satisfied by the guidelines at issue shows, in my view, that the assumption that the measure in dispute is challengeable is incorrect, which corroborates the interpretation proposed in the preceding section of this Opinion.
53. It is established that the condition of direct concern requires two cumulative criteria to be met, (18) namely, first, the contested measure must directly affect the legal situation of the individual and, secondly, it must leave no discretion to its addressees which are entrusted with the task of implementing it, such implementation being purely automatic and resulting from the EU rules alone without the application of other intermediate rules. (19)
54. Under the first criterion it must be determined whether the commitment made by the Commission in the guidelines at issue, whereby aid referred to in Article 10a(6) of Directive 2003/87, as amended by Directive 2018/410, is considered to be compatible with the internal market where it is granted to the sectors listed exhaustively in Annex I to those guidelines, directly affects the appellants’ legal situation.
55. In paragraphs 38 to 42 of the orders under appeal, the General Court started by holding in essence that the fact that the Member States have the right to notify the Commission of an aid measure which does not satisfy the conditions set out in the guidelines at issue means that they cannot be deemed to have that direct effect. In the present case, according to the General Court, the existence of the exhaustive list of sectors eligible for aid in Annex I to those guidelines cannot preclude Member States, ‘from a legal point of view’, from notifying the Commission of an aid measure in favour of undertakings which are active in sectors other than those listed in that annex.
56. The General Court then stated, in essence, that the fact that a Member State might not always be ready to take the risk of notifying the Commission of aid measures not fully in line with the guidelines at issue is not relevant in this case, the key factor being that, ‘from a legal point of view’, a Member State might be able to show that, although not fulfilling the conditions laid down in those guidelines, aid granted to an undertaking operating in a sector other than those listed in Annex I is compatible with Article 107(3)(c) TFEU. While it is certainly very probable that, in applying the guidelines at issue, the Commission would adopt a decision finding the aid to be incompatible with the internal market, ‘only that decision, as the case may be, would be capable of having direct legal effects on the undertakings that ought to have benefited from the State aid’. (20)
57. In my view, the General Court’s reasoning would be correct if it were developed when examining whether the guidelines can be characterised as a challengeable measure. That reasoning is, in actual fact, based on the absence of binding legal effects on the Member States, which, as was explained earlier, leads to the conclusion that the guidelines at issue do not have such effects on the appellants.
58. It should be noted in this regard that the heart of the General Court’s reasoning, namely paragraph 41 of the orders under appeal, merely transposes the legal path taken by Advocate General Wahl in points 43 and 44 of his Opinion in Kotnik and Others. (21) As was explained above, the particular question in that case was whether guidelines adopted in the field of State aid were capable of having binding legal effects on Member States.
59. The General Court’s finding that the existence of the direct concern of the appellants is not influenced by the fact that a Member State might not always wish to take the risk inherent in the notification of an aid measure not fully in line with the guidelines is thus supported by the following statement of reasons: ‘those are considerations of expediency which may be relevant for the adoption of policy decisions by a Member State, but cannot affect the nature and effects of an EU act, as stemming from the rules of the Treaties’. (22) In my view, this statement of reasons, which reproduces the Opinion of Advocate General Wahl almost verbatim, shows particularly clearly that the General Court’s reasoning, as set out in paragraphs 38 to 42 of the orders under appeal, does not correspond to an examination to ascertain whether the requirement of direct concern is satisfied.
60. As regards the second criterion for direct concern, any attempt to apply it to the case at issue seems doomed to failure. That criterion was identified by the Court in order to exclude the existence of direct concern where such concern is the result of the exercise of discretion by the addressee entrusted with the task of implementing the measure at issue, which is invariably another European institution or a national authority.
61. In the field of State aid, the ‘addressees’ are generally Member States, as the administrative procedure applied is primarily a dialogue between the Commission and the Member State concerned. It would seem, however, that the Member States could not be classified as ‘addressees which are entrusted with the task of implementing’ the guidelines. On the contrary, it is clear from the judgment in Kotnik that the Commission alone is entrusted with the task of implementing its guidelines.
62. This finding seems to indicate that the criterion in question, which is intended to identify whether an autonomous will interposes itself between a legal act of the European Union and its effects on the applicant, (23) cannot be effectively applied to a soft law instrument like the guidelines at issue, the effect of which is simply a self-imposed limitation on the institution which adopted it. In that case, there is no need to consider the existence of that autonomous will, since the effects of the guidelines at issue are confined to the legal sphere of the Commission and only a decision by the Commission on the compatibility with the internal market of an aid measure taken under Article 10a(6) of Directive 2003/87, as amended by Directive 2018/410, is capable of generating binding legal effects on the appellants.
63. I would add, for the sake of completeness, that it follows logically from the fact that the examination of direct concern is not applicable to the guidelines at issue that the approach adopted by the Court in Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (24) is not relevant in this case. Moreover, that approach is fully consistent with the interpretation proposed in this Opinion to the effect that the guidelines at issue do not have binding legal effects on third parties.
64. In the judgment in Montessori, the Court set out an understanding of the requirement of direct concern which, in essence, permits the undertaking which addresses a complaint to the Commission to have access to the General Court so that the latter can review the lawfulness of the decision taken by the Commission on the measure which is the subject of the complaint, provided that undertaking adequately explains before the General Court why it is liable to suffer a competitive disadvantage on account of that decision. (25) In my view, the right of any economic operator not to be subject to competition distorted by a national measure, on which this understanding is founded, cannot justify that criterion being applied to a situation like that in the present case, which does not concern a Commission decision, but rather Commission guidelines which do not have binding legal effects on the appellant undertakings.
The reasoning in the judgment in Deutsche Post is not applicable in the case of a soft law instrument intended only to limit the power of the institution which adopted it
65. At this point, it should be made clear that the Court’s reasoning in the judgment in Deutsche Post is not applicable in the present case. In that judgment, the Court observed, first, that the case-law according to which a measure is challengeable only if the binding legal effects that it produces are capable of affecting the interests of the applicant by bringing about a distinct change in its legal position had been developed in the context of actions brought by natural or legal persons against measures of which they were the addressees. Second, and most importantly, it held that where an action for annulment is brought by a natural or legal person against a measure that has not been addressed to it, the abovementioned requirement overlaps with the conditions laid down in the fourth paragraph of Article 263 TFEU (direct and individual concern or direct concern alone in the case of a regulatory act). (26)
66. This reasoning cannot, in my view, be justified in the case of a soft law instrument like the guidelines at issue, the only effect of which is to limit the discretion enjoyed by its author.
67. The instrument the challengeable nature of which was at issue in the judgment in Deutsche Post was a Commission decision requiring a Member State to provide information concerning allegedly unlawful aid, as provided for in Article 10(3) of the former regulation governing the procedure in the area of State aid (currently Article 12(3) of Regulation 2015/1589). (27) This was not therefore a soft law instrument intended to limit the discretion of the institution which adopted it, but an act serving the purposes of the administrative procedure whose addressee (any Member State) was quite distinct from its author (the Commission), and the Court was called upon to decide, in particular, whether an action brought against that act by Deutsche Post, as beneficiary of the measure concerned by the information referred to by the injunction decision, was admissible.
68. It should also be noted that to date that judgment has never been cited by the Court in the field of State aid, and the only time it has been cited was in a case relating to another area of EU law, (28) to which the same considerations apply as are set out in the preceding paragraph. That case concerned the admissibility of an action brought against a letter from the Single Resolution Board indicating the reasons why that body did not intend to proceed with an ex post definitive valuation of Banco Popular Español SA following the adoption of a resolution scheme in respect of that bank, the appellants being investment fund managers that held various types of capital instruments of the bank.
69. Consequently, I take the view that the proposed interpretation according to which the guidelines at issue cannot have binding legal effects on the appellants and do not therefore constitute a measure against which an action may be brought under Article 263 TFEU cannot be called into question by relying on the application in the present case of the reasoning followed by the Court in the judgment in Deutsche Post.
Brief final remarks: the right to effective judicial protection and access to justice at EU level
70. I would, finally, like to make two remarks.
71. First, I am aware that if it were accepted that the guidelines at issue are not challengeable, the appellants in the case at hand would, in the absence of implementing measures at domestic level, also be unable to have recourse to national courts to challenge the lawfulness of Annex I to those guidelines. It need only be noted in this regard that although the requirement as to binding legal effects must be interpreted in the light of the right to effective judicial protection as guaranteed in the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), the Court has already held that that right is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union. The interpretation of the concept of ‘challengeable measure’ in the light of Article 47 of the Charter cannot lead to a situation where that requirement is disregarded on pain of exceeding the jurisdiction conferred by the FEU Treaty on the Courts of the European Union. (29)
72. In addition, whilst I am aware of the prevailing opinion regarding the need to expand the routes by which individuals access justice at EU level, I question whether it would be desirable, in general, for the Court to find that a soft law instrument like the guidelines at issue is a challengeable measure, and that any competitor that is able to show that it satisfies the requirement of direct concern, as identified in the judgment in Montessori, is thus entitled to bring a legal challenge where that measure constitutes a ‘regulatory act’ within the meaning of the last paragraph of Article 263(4) TFEU. I would note in this regard that, because they can be adopted quickly and adapted to contingent economic situations, these soft law instruments have been used, for example, to frame the Member States’ response to the recent crises caused by the collapse of the banking system, the COVID-19 pandemic and the outbreak of the war in Ukraine. In such situations, could the Commission be expected to adopt measures to make the exercise of its discretion more foreseeable and transparent knowing that the lawfulness of certain provisions can be directly challenged before the General Court? Could an increase in the number of those actions, which would then seem easily foreseeable, not paralyse the Commission’s clarificatory action? Is the revision of the problematic provisions of those measures by the Commission itself not sufficient for the economic operators concerned?
In the alternative: the General Court was not under any obligation to consider the actions on the merits before ruling on their admissibility
73. In the alternative, the appellants claim, as was explained above, that the Court should set aside the orders under appeal on the ground that the General Court should have considered the actions on the merits before ruling on admissibility.
74. In this regard, they recall that, under Article 130(7) of the Rules of Procedure of the General Court, the General Court is to reserve its decision on preliminary objections or other issues until it rules on the substance of the case ‘where special circumstances so justify’. For the proper administration of justice, the General Court should have held that such circumstances exist in this case because of the overlap between the assessments which the General Court had to make in determining whether the appellants were directly concerned by the guidelines at issue, relating to the nature, content and context of those guidelines, and the assessments which the General Court needed to make to dispose of the first plea in law on the merits. That plea concerned the question whether the Commission is competent to impose independent legal obligations on the Member States, in effect displacing the competence that the appellants argue those States are lawfully endowed with.
75. In my view, Article 130 of the Rules of Procedure of the General Court leaves to the definitive assessment of the General Court whether to decide on the admissibility of the action as soon as possible or, where there are special circumstances, to reserve that matter until it rules on the merits. It follows that in deciding to rule solely on the objection of inadmissibility, the General Court is not open to the reproach directed against it. (30) In any event, no such special circumstances exist in the present case given that, assuming that the assessments to be made in determining whether the appellants were directly concerned by the guidelines at issue and the assessments needed in order to rule on the first plea on the merits overlap, the sound administration of justice did not oblige the General Court to reserve its decision on the admissibility of the action brought by the appellants until a later time. On the contrary, under Article 130(7) of its Rules of Procedure that principle obliged it to decide as soon as possible. The ground at issue is therefore unfounded.
76. In the light of the above, I consider that, by relying on the finding that the appellants were not directly concerned by the guidelines at issue in ruling that the actions seeking the partial annulment of those guidelines were inadmissible, the General Court implicitly, but necessarily, characterised those guidelines as a measure against which an action may be brought and, by doing so, erred in law.
77. In my view, the error in law made by the General Court cannot, however, lead to the setting aside of the orders under appeal, since the operative parts of those orders dismissing the actions brought against the guidelines at issue as inadmissible remain well founded on the legal ground based on the unchallengeable nature of those guidelines. Accordingly, the Court should substitute that ground for the incorrect ground relied on by the General Court. (31)
Conclusion
78. In the light of the foregoing considerations, I propose that the Court reject the second ground of appeal and, in the event that the first ground of appeal is also rejected, dismiss the appeals in their entirety.