Case T‑381/11

Europäischer Wirtschaftsverband der Eisen- und Stahlindustrie (Eurofer) ASBL

v

European Commission

(Action for annulment — Environment — Directive 2003/87/EC — Free allocation of greenhouse gas emission allowances from 2013 onwards — Commission decision establishing product benchmarks to be applied in calculating the allocation of emission allowances — Fourth paragraph of Article 263 TFEU — No individual concern — Regulatory act entailing implementing measures — Inadmissibility)

Summary of the Order

1.      Action for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision determining transitional Union-wide rules for harmonised free allocation of emission allowances — Action brought by an association which represents the interests of the European steel manufacturing industry — Admissibility — Conditions

(Art. 263, fourth para., TFEU; European Parliament and Council Directive 2003/87, Art. 10a)

2.      Action for annulment — Natural or legal persons — Measures of direct and individual concern to them — Individual concern — Criteria — Commission decision determining transitional Union-wide rules for harmonised free allocation of emission allowances — Action brought by an association which represents the interests of the European steel manufacturing industry — Absence of individual concern to the undertakings represented — Inadmissibility

(Art. 263, fourth para., TFEU; European Parliament and Council Directive 2003/87, Art. 10a)

3.      Action for annulment — Natural or legal persons — Meaning of ‘regulatory act’ for the purposes of the fourth paragraph of Article 263 TFEU — All acts of general application apart from legislative acts — Commission decision determining transitional Union-wide rules for harmonised free allocation of emission allowances — Inclusion — Act entailing implementing measures within the meaning of that provision of the treaty

(Arts 263, fourth para., TFEU, 267 TFEU and 289(1) to (3), TFEU; Directive 2003/87 of the European Parliament and of the Council, Arts 10a and 11(1))

1.      An association which represents the interests of the European steel manufacturing industry is, as a rule, entitled to bring an action for annulment against a Commission decision determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community only if the undertakings which it represents or some of those undertakings themselves have standing or if it can prove an interest of its own.

(see para. 18)

2.      Natural or legal persons other than the person to whom a measure is addressed can claim to be individually concerned, for the purposes of the fourth paragraph of Article 263 TFEU, only if they are affected by the measure in question by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee.

Consequently, an action for annulment brought by an association representing the interests of the European steel manufacturing industry against a Commission decision determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community is inadmissible.

The fact that the undertakings which that association represents are operators of stationary installations referred to in Chapter III of Directive 2003/87 cannot distinguish them since, as regards the provisions of the contested decision, they are only concerned by that decision by reason of their objective capacity as operators of those installations, in the same way as any other trader which is currently or potentially in the same situation.

The same applies as regards the procedural guarantees provided to those undertakings in the fifth subparagraph of Article 10a(1) and the first subparagraph of Article 10a(2) of Directive 2003/87. The fact that a person participates in the process by which a European Union measure is adopted does not distinguish him individually with regard to the measure in question unless provision has been made under the European Union rules for procedural guarantees in his favour. Where a provision of European Union law requires that, for the purposes of adopting a decision, a procedure must be followed in respect of which a natural or legal person may assert rights, such as the right to be heard, the special legal position which that person enjoys has the effect of distinguishing him individually within the meaning of the fourth paragraph of Article 263 TFEU. However, it must be pointed out that a person or entity enjoying such a procedural right will not, as a rule, where there is any type of procedural guarantee, have standing to bring proceedings contesting the legality of a Community act in terms of its substantive content. The precise scope of an individual’s right of action against a Community measure depends on his legal position as defined by EU law with a view to protecting the legitimate interests thus afforded him.

Although it is clear from the fifth subparagraph of Article 10a(1) and the first subparagraph of Article 10a(2) of Directive 2003/87 that the undertakings represented by the applicant, as relevant stakeholders within the meaning of those provisions, had a right to be heard by the Commission and that the Commission was therefore required to consult them on the principles referred to in those provisions prior to the adoption of the contested decision, the pleas in law raised by the applicant in support of its action for annulment of the contested decision do not concern an alleged breach of the obligation to consult. In so far as the applicant seeks in the present case not to protect its procedural rights but to challenge the legality of the contested decision in terms of its substantive content, those undertakings are not individually concerned within the meaning of the fourth paragraph of Article 263 TFEU.

(see paras 30-36, 38, 39)

3.      The meaning of regulatory act for the purposes of the fourth paragraph of Article 263 TFEU, must be understood as covering all acts of general application apart from legislative acts.

A Commission decision determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community is of general application, in that it applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged in general and in the abstract. It does not constitute a legislative act since it was not adopted in accordance with either the ordinary legislative procedure or the special legislative procedure within the meaning of paragraphs 1 to 3 of Article 289 TFEU. The contested decision is an act adopted by the Commission on the basis of Article 10a(1) of Directive 2003/87. Consequently, that decision constitutes a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU.

Since the contested decision provides that the Member States and the Commission are to adopt several implementing measures, which culminate in the determination, by the Member States, of the final total annual amount of emission allowances allocated free of charge for each of the installations concerned whose inscription on the list laid down in Article 11(1) of Directive 2003/87 has not been rejected by the Commission, it must be found that it entails implementing measures, within the meaning of the fourth paragraph of Article 263 TFEU.

That conclusion is not called into question by the objective sought by that provision. Admittedly, that objective is to enable natural and legal persons to bring an action against acts of general application which are not legislative acts, which are of direct concern to them and which do not entail implementing measures, therefore avoiding a situation in which such a person would have to break the law in order to have access to justice. However, the situation of members of an association which represents the interests of the European steel manufacturing industry in an action for annulment brought by the latter against that decision is not that at which the abovementioned objective is directed, since those members may, in principle, without being required to infringe the contested decision beforehand, challenge the national implementing measures of the contested decision and, in that context, plead the unlawfulness of the contested decision before the national courts which may, before giving judgment, have recourse to the provisions of Article 267 TFEU.

(see paras 42-45, 56-58, 60)