The Cases Related to the Individually Concerned in the Directive EC Caselaw

The judges refuse thus far to grant a company the quality of being 'individually concerned' by the Commission's decision about the national allocation plan. The first step of this case-law was taken during the EnBW Energie Würtemberg v. Commission case of 30 April 2007.15 On 7 July 2004, the Commission rejected the German national allocation plan because it contained an 'ex post' possibility, making possible a modification of the EU allowances allocated to an installation after the Commission's approbation of the national allocation plan. The Commission did not accept the plan because of a danger to the effectiveness of the trading mechanism. It is important to emphasize that the Commission rejected it only for that reason.16 However, the German plan also had another particularity. It contained two specific rules, named the 'transfer rule' and the 'special attribution'.17 Because old installations pollute more, Germany created those rules to favor their closings. The two rules were an exception to the general rule of the plan. Normally, the allocation of the EU allowances was made, for a 14-year period, on foreseen emissions, calculated pursuant to the 'best available technique' method. This is lower than the previous emissions, before the new system came into force. However, under the 'transfer rule', operators would have, over four years, EU allowances that were calculated on their previous historical emissions, which would have been more favorable for them. Pursuant to the 'special attribution' rule, not so generous as the transfer rule, the nuclear installations would receive temporary, extra EU allowances to cover their closings, which the German law had made mandatory in 2007.18

An appeal was brought before the Court of First Instance against the Commission's decision by EnBW Energie Baden-Württemberg, a German nuclear society, submitted to the 'special attribution' rule. In its opinion, the total amount of EU allowances given in accordance with the 'special attribution' rule would be insufficient to cover the loss caused by the closure of its nuclear installation. On the other hand, its concurrent RWE, subject to the 'transfer rule', would receive a greater amount of EU allowances. For that

16 See p. 105 of the present book.

17 Ehrmann and Greinache (2006).

18 Gesetz zur geordneten Beendigung der Kernenergienutzung zur gewerblichen Erzeugung von Elektrizität.

reason, that last attribution appeared to be an unfair and unjustified economical advantage.

The Commission, defendant, brought an admissibility argument before the Court. In the Commission's view, the plaintiff lacked sufficient interest to lodge an appeal against its NAP decision, because that latter decision is only addressed to the Member State. The judges took the advantage to make clear the role of the Commission when it examines the NAP of a Member State.19 The Court rather surprisingly ruled that the evaluation of the Commission is not an 'authorization' sensu stricto. Indeed, the Commission can only make its evaluation of the national plan during three months starting from its deposit. If it does not, the NAP will be automatically accepted. Conversely, the Commission's decision is not an 'authorization' either, because it gives an opinion only on some of the specific points of the national allocation plan. However, it cannot be concluded that the Commission has expressed no opinion on the German rules at stake and on their application to the plaintiff in the decision addressed to the German government. Thus the plaintiff is not 'individually concerned' by the decision of the Commission and therefore, in the Court's view, the action is inadmissible.20

The operator adduced two other arguments. First, the company was of the view that the Commission's decision about the connection between Articles 87 and 88 of the Treaty and the German provisions was a 'state-aid' decision.21 Then, the company supported the argument that the decision constituted a grievance, legally speaking.22 The argument was not followed by the Court because the judges emphasized that the grievance must ensue from the

19 The real reason why the Commission explained this ensued from the Commission's argument before the Court. For the Commission, the plaintiff was not 'individually concerned' by its decision. Of course, the plaintiff disagreed with the opinion of the Commission. For the company, the Commission's evaluation of the national plan is an authorization and, in consequence, it is individually concerned by the Commission's decision.

20 'La décision attaquée ne comporte pas (...) une quelconque autorisation - ni explicite ni implicite - du PNA allemand dans son ensemble, en ce compris la règle de transfert contestée. Dès lors, contrairement à l'annulation d'une décision de compatibilité adoptée en matière d'aides d'État et au but poursuivi par la requérante, l'éventuelle annulation de la décision attaquée ne saurait avoir pour conséquence l'anéantissement de cette autorisation', Court of First Instance, 30 April 2007, Case T-387/04 - EnBW Energie Baden-Württemberg v. Commission - § 124.

21 On that question, see section 8 below.

22 Under an other regular case-law of the Court, see ECJ, 28 January 2004, Case C-164/02 - Netherlands v. Commission - § 21 - Rec. p. I-1177; Court of First Instance, 19 March 2003, T-213/00 - CMACGM e.a./Commission - § 186 - Rec. p. II-913, both mentioned in Court of First Instance, 25 June 2007, Case T-130/06 - Drax Power e.a./ Commission - § 127.

pronouncement of a decision. In that case, the two contested rules (i.e. the transfer rule and the special attribution rule) were in the grounds of the decision itself and not in the pronouncement. Thus, the Court could not recognize the interest of the litigants because they were not individually concerned because they were not 'damaged' by the pronouncement. However, the Court recognized that the grounds could also contain a grievance, but in that case, it refused to admit the argument because these grounds had no connections with the pronouncement of the decision.

That emerging case-law was confirmed in Drax Power e.a. and others v. Commission of 25 June 2007. This case is connected with the above-mentioned case T-178/05, United Kingdom v. Commission. Finally, in May

2005, the United Kingdom decided to allocate allowances on the basis of its original plan.23 In other words, the United Kingdom did not allocate the increase of 2.7% allowances planned for the electricity generation sector in its draft rejected by the Commission. It decided to do that 'subject to and without prejudice to its legal challenge against the Commission' which was still pending before the Court of First Instance. On 22 February 2006, the Commission adopted the decision C(2006) 426 concerning the proposed amendment to the original plan notified by the United Kingdom. In that decision, the Commission rejected the United Kingdom's proposed amendment for the second time. The dismissal was based on the fact that this proposal was notified too late to the Commission. Indeed, the Commission asked the Member State to communicate its amendments by 30 September 2004 at the latest and the Member State sent it to the Commission on 18 February 2005. On 28 April

2006, the United Kingdom announced in a joint statement of the Department for Environment, Food and Rural Affairs and the Department of Trade and Industry, that it had decided not to pursue further Court action against the Commission to procure consideration of its proposed amendment to the original NAP and that it would leave that NAP unchanged. However, several English companies, including Drax Power e.a., made an appeal against the decision. They did not accept the Member State's refusal to allocate them these 'extra' EU allowances.

Once again, the real question was whether the plaintiff was sufficiently concerned by the Commission's decision about the English national allocation plan: 'Given that the contested decision was addressed to the United Kingdom, the Court will examine whether the applicants are directly concerned by that decision'.24 This time, the judges based their appreciation on Dreyfus v. Commission and DSTV v. Commission case-law. They recalled

23 A total number of 736.3 Mt CO2.

24 Court of First Instance, 25 June 2007, Case T-130/06 - Drax Power e.a./ Commission - § 46. (OJ. C 211 of the 08.09.2007, p. 33).

the two cumulative criteria of its regular case-law in the matter of the 'individually concerned' within the meaning of the Article 230 of the Treaty.25,26 According to it, first, the measure at issue must directly affect the legal situation of the person concerned. Second, that measure must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules [...] The condition required by the second criterion is also satisfied where the possibility for addressees not to give effect to the Community measure is purely theoretical and their intention to act in conformity with it is not in doubt.27

So, given that the contested decision was addressed to the Member State, the Court decided to examine whether the applicants were directly concerned by that decision'.28 The Court of First Instance consecrated this case-law in Drax Power.

The Court examined whether the English decision that did not grant the 'extra' allowances modified the legal situation of the plaintiff or not. For the Court, the possibility that the applicants would receive the additional allowances as envisaged by the proposed amendment to the original NAP was based only on the United Kingdom's declared intention in that regard and cannot be considered as a vested right of the applicants: '(...) the [Commission's] decision did not reduce the total quantity of allowances granted by the United Kingdom by 19.8 Mt CO2'. 'Furthermore, in order to show that they are directly affected by the contested decision, the applicants are not entitled to rely on future and hypothetical situations which cannot be used as a basis to establish that the contested decision directly affects their legal situation'. 29 So, in other words, 'the direct and definitive determination of the rights and obligations of the operators of those installations can only result from an allocation decision of the Member State. Therefore, the contested decision did not in any way have the effect of depriving the applicants of specific rights

25 ECJ, Case C-386/96 P - Dreyfus v. Commission [1998] ECR I-2309, paragraph 43, mentioned in Court of First Instance, 25 June 2007, Case T-130/06 - Drax Power e.a./ Commission - § 48.

26 Court of First Instance, Case T-69/99 - DSTV v. Commission [2000] ECR II-4309, paragraph 24, mentioned in Court of First Instance, 25 June 2007, Case T-130/06 - Drax Power e.a./ Commission - § 48.

27 Court of First Instance, 25 June 2007, Case T-130/06 - Drax Power e.a./ Commission - § 48.

28 Court of First Instance, 25 June 2007, Case T-130/06 - Drax Power e.a./ Commission - § 47.

29 Court of First Instance, 25 June 2007, Case T-130/06 - Drax Power e.a./ Commission - §59.

which had vested at the time of its adoption and thus did not result in any change to the applicants' rights or to their legal situation'.30 'It follows that a proposed amendment to a NAP may not be seen as definitively fixing the position of the Member State'.31 In conclusion, the Court said that 'the legal situation of the applicants at the date of the contested decision was that of operators holding specific allocations of allowances for the period from 2005 to 2007 on the basis of the original NAP. The contested decision did not alter that position'.32

In the next judgments, Fels-Werke v. Commission of 11 September 2007 and the US Steel Kosice cases of 1 October 2007, the Court 'simply' followed its previous interpretation.33,34

Saint Gobain Glass Deutschland, Fels-Werke and Spenner Zement made an appeal against the decision of the Court of First Instance. These companies still consider that they are 'individually concerned' by the Commission's decision. However, the European Court of Justice decided, in its order of 8 April 2008, that the Court of First Instance did not make a mistake when it applied Article 230 of the EC Treaty in that case.35

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