ORDER OF THE COURT (Fifth Chamber)

11 December 2014 ([\*](#Footnote*))

(Appeals — State aid — Decision 2010/787/EU — Aid to facilitate the closure of uncompetitive coal mines — Conditions for considering that aid compatible with the internal market — Article 181 of the Rules of Procedure of the Court)

In Case C‐99/14 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 24 February 2014,

**Federación Nacional de Empresarios de Minas de Carbón (Carbunión)**, established in Madrid (Spain), represented by K. Desai, solicitor, and S. Cisnal de Ugarte, abogado,

appellant,

the other parties to the proceedings being:

**Council of the European Union**, represented by F. Florindo Gijón and P. Mahnič Bruni, acting as Agents,

defendant at first instance,

**European Commission**, represented by L. Flynn, É. Gippini Fournier and C. Urraca Caviedes, acting as Agents, with an address for service in Luxembourg,

intervener at first instance,

THE COURT (Fifth Chamber),

composed of T. von Danwitz (Rapporteur), President of the Chamber, C. Vajda, A. Rosas, E. Juhász and D. Šváby, Judges,

Advocate General: M. Wathelet,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to rule by reasoned order in accordance with Article 181 of the Rules
of Procedure of the Court,

makes the following

**Order**

1        By its appeal, the Federación Nacional de Empresarios de Minas de Carbón (Carbunión) seeks to have set aside the order of
the General Court of the European Union in *Carbunión* v *Council* (T‐176/11, EU:T:2013:686; ‘the order under appeal’) whereby that court dismissed as inadmissible its action seeking the 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 contested decision’).

**Background to the dispute and the contested decision**

2        As Council Regulation (EC) No 1407/2002 of 23 July 2002 on State aid to the coal industry (OJ 2002 L 205, p. 1), which established
a State aid regime specific to the coal sector, expired on 31 December 2010, the Council of the European Union adopted, on
10 December 2010, the contested decision.

3        Recitals 2 to 4 and 6 to 8 in the preamble to that decision are as follows:

‘(2)      The small contribution of subsidised coal to the overall energy mix no longer justifies the maintenance of such subsidies
for securing the supply of energy in the Union.

(3)      The Union’s policy of encouraging renewable energy sources and a sustainable and safe low-carbon economy does not justify
the indefinite support for uncompetitive coal mines. The categories of aid permitted by Regulation ... No 1407/2002 should therefore
not be continued indefinitely.

(4)      However, in the absence of sector-specific State aid rules, only the general State aid rules apply to coal. In this context,
uncompetitive coal mines, currently benefiting from aid under [Regulation No 1407/2002], may no longer be eligible for aid
and may be forced to close.

...

(6)      This 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.

(7)      In order to minimise the distortion of competition in the internal market resulting from State aid to facilitate the closure
of uncompetitive coal mines, such aid should be degressive and strictly limited to coal production units that are irrevocably
planned for closure.

(8)      In order to mitigate the environmental impact of the production of coal by coal production units to which closure aid is granted,
the Member States should establish a plan of appropriate measures, for example in the field of energy efficiency, renewable
energy or carbon capture and storage.’

4        Article 2(1) of that decision provides that, in the context of closure of uncompetitive mines, aid to the coal industry may
be considered compatible with the proper functioning of the internal market if it complies with the provisions of that decision.

5        Article 3 of the contested decision, titled ‘Closure aid’, provides:

‘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;

...

(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;

...

(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.

...

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 [European] Commission, the Member State concerned shall recover all aid granted in respect of the
whole period covered by the closure plan.’

6        Article 7(2) and (3) of the contested decision is worded as follows:

‘2.       Member States which intend to grant closure aid as referred to in Article 3 shall notify a closure plan for the coal production
units concerned to the Commission. The plan shall contain at least the following:

(a)      identification of the coal production units;

(b)      the real or estimated production costs for each coal production unit per coal year;

(c)      estimated coal production, per coal year, of coal production units forming the subject of a closure plan;

(d)      the estimated amount of closure aid per coal year.

3.       Member States shall notify any amendments to the closure plan to the Commission.’

**Proceedings before the General Court and the order under appeal**

7        By application lodged at the Registry of the General Court on 14 March 2011, Carbunión brought an action seeking the annulment
of Article 3(1)(a), (b) and (f), and (3) of the contested decision (‘the contested provisions’).

8        By order of the President of the Eighth Chamber of the General Court of 1 August 2011, the Commission was granted leave to
intervene in support of the form of order sought by the Council.

9        By separate document, the Council raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of
the General Court, arguing inter alia that the contested provisions were not severable from the remainder of the decision
under appeal. Both Carbunión and the Commission submitted observations on that objection of inadmissibility.

10      By the order under appeal, the General Court upheld the objection of inadmissibility raised by the Council, supported by the
Commission, and dismissed Carbunión’s action as inadmissible.

**Forms of order sought by the parties**

11      By its appeal, Carbunión claims that the Court should:

–        declare the appeal admissible and well founded;

–        set aside the order under appeal in its entirety, including the order to pay the costs;

–        itself give final judgment in the dispute, in accordance with Article 61 of the Statute of the Court of Justice of the European
Union, and to annul the contested provisions in so far as they affect Carbunión; and

–        order the Council to pay the costs.

12      The Council requests the Court to declare the appeal inadmissible and to order Carbunión to pay the costs.

13      The Commission asks that the Court dismiss the appeal and order Carbunión to pay the costs.

**The appeal**

14      Under Article 181 of its Rules of Procedure, where an appeal is, in whole or in part, manifestly inadmissible or manifestly
unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General,
decide by reasoned order to dismiss that appeal in whole or in part. That provision should be applied in the present case.

*Admissibility*

15      The Council contends that the appeal is inadmissible in its entirety on the grounds, first, that it was brought before the
Court out of time and, secondly, that Carbunión merely reproduces in its appeal the pleas and arguments already put forward
before the General Court.

16      With regard to the first objection of inadmissibility, it should be stated that, under Article 56 of the Statute of the Court,
the time-limit for bringing an appeal is two months from the notification of the decision appealed against. Under Article 51
of the Rules of Procedure of the Court, that time-limit is to be extended on account of distance by a single period of 10
days. If the time-limit ends on a Sunday, according to Article 49(2) of those rules, it is extended until the following working
day. Moreover, Article 57(7) of those rules provides that the date and time at which a copy of the signed original of a procedural
document is received at the Registry by telefax or any other technical means of communication available to the Court will
be deemed to be the date and time of lodgment for the purposes of compliance with the procedural time-limits, provided that
the signed original of the procedural document is lodged at the Registry no later than 10 days thereafter.

17      As the appellant received notification of the order under appeal on 13 December 2013, the time-limit for bringing an action
against that order thus ended two months and 10 days after that date, namely on 23 February 2014. That day being a Sunday,
the time-limit was extended until 24 February 2014, the date on which a copy of the signed original of the appeal was received,
by telefax, at the Court. That signed original was lodged at the Court Registry on 28 February 2014, thus less than 10 days
after the lodgment by telefax. Therefore, the first objection of inadmissibility, based on the appeal having been lodged out
of time, must be rejected.

18      In relation to the second objection of inadmissibility, according to which the appeal is merely a repetition of the pleas
already put forward before the General Court, it should be recalled that, according to settled case-law of the Court, an appeal
which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the General Court, does
not satisfy the requirements to state reasons under the second subparagraph of Article 256(1) TFEU, the first subparagraph
of Article 58 of the Statute of the Court of Justice, and Article 168(1)(d) of the Rules of Procedure of the Court. However,
the points of law examined at first instance may be argued again in the course of an appeal, provided that the appellant challenges
the interpretation or application of EU law by the General Court. Indeed, if an appellant could not thus base his appeal on
pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose
(see, to that effect, judgment in *Inuit Tapiriit Kanatami and Others* v *Parliament and Council*, C‐583/11 P, EU:C:2013:625, paragraphs 46 and 47 and the case-law cited).

19      In its appeal, Carbunión does not merely reiterate or reproduce verbatim the pleas and arguments it raised before the General
Court but challenges specific paragraphs of the order under appeal that it considers to be vitiated by errors of law. Carbunión
maintains in particular that such errors of law were committed by the General Court in the context of the interpretation under
which it found the contested provisions to be conditions for the grant of aid intrinsically linked to the substance of the
contested decision. It thus challenges an essential part of the reasoning of the order under appeal. Therefore, the second
ground of inadmissibility must also be rejected.

20      It follows that the appeal is admissible.

*The first ground of appeal*

 Arguments of the parties

21      By its first ground of appeal, Carbunión alleges that the General Court committed an error of law in paragraphs 33, 35 to
37 and 40 of the order under appeal in so far as it found the contested provisions to be intrinsically linked to the substance
of the contested decision.

22      Carbunión maintains that that finding is based on an incorrect method of assessment, namely on a limited purposive interpretation
under which the contested decision purports to create a specific legal framework for granting of aid for the closure of uncompetitive
coal mines. In Carbunión’s view, the General Court should have used a comprehensive purposive interpretation as regards that
decision, by taking into account in particular Recitals 3 and 8 in the preamble thereto as well as Article 3(1)(h) of the
same decision, so as to find that its purpose was to promote the environment and renewable energy sources.

23      Moreover, the General Court should have used a counterfactual scenario for the assessment of whether the contested provisions
were severable; specifically, it should have analysed whether removing the contested provisions would have prevented the contested
decision from attaining its specific purpose.

24      Lastly, the General Court committed an error of law by examining whether collectively the contested provisions were severable
instead of undertaking an individual examination of each contested provision in respect of its severability from the remainder
of the contested decision.

25      The Commission disputes the merits of the first ground of appeal.

 Findings of the Court

26      According to the settled case-law of the Court, partial annulment of a Union act is possible only if the elements whose annulment
is sought may be severed from the remainder of the act (see, inter alia, judgments in *Commission* v *Council*, C‐29/99, EU:C:2002:734, paragraph 45, and *Germany* v *Commission*, C‐239/01, EU:C:2003:514, paragraph 33). The Court has repeatedly ruled that that requirement of severability is not satisfied
where the partial annulment of an act would have the effect of altering its substance (judgments in *Commission* v *Poland*, C‐504/09 P, EU:C:2012:178, paragraph 98, and *Commission* v *Parliament and Council*, C‐427/12, EU:C:2014:170, paragraph 16).

27      In the present case, those conditions are clearly not met.

28      In that regard, it should be recalled that the contested decision, as is apparent from its title, purports to establish a
specific legal framework for the grant of aid to facilitate the closure of uncompetitive coal mines. It is apparent from Recitals
4 and 6 in the preamble to that decision that the decision marks the transition from the application of rules specific to
the coal sector to the application of general rules applicable to all sectors. In particular, it is based on the Council’s
view, set out in Recitals 2 and 3 in the preamble to the decision, that the Union’s policy of encouraging renewable energy
sources and a sustainable and safe low-carbon economy does not justify the indefinite granting, to those uncompetitive coal
mines, of aid permitted by Regulation No 1407/2002.

29      Against that background, Carbunión is wrong to argue that the contested decision purports to promote the protection of the
environment and renewable energy sources. That argument in fact stems from a confusion between the purpose of that decision
and the considerations justifying its adoption. Those elements are mentioned in Recital 3 in the preamble to the contested
decision only to justify its purpose of facilitating the closure of uncompetitive coal mines. Moreover, while Article 3(1)(h)
of the contested decision and Recital 8 in the preamble thereto provide for the establishment of a plan to take measures aimed
at mitigating the effects of coal production on the environment, those planned measures concern only production units to which
closure aid has been granted and which, according to Recital 7 in the preamble to that decision, are irrevocably planned for
closure.

30      As regards the review of whether the contested provisions are severable, that review requires consideration of the scope of
those provisions, in order to be able to assess whether their annulment would alter the spirit and substance of the contested
decision (judgment in *Commission* v *Estonia*, C‐505/09 P, EU:C:2012:179, paragraph 112 and the case-law cited).

31      In that regard, it should be recalled that the contested provisions specifically limit the grant of coal production aid only
to aid for closing uncompetitive coal mines. Under those provisions, the grant of that aid is subject to the condition that
the coal production units be definitively closed at the date fixed in the closure plan — 31 December 2018 at the latest —
failing which the Member State concerned must recover all aid granted. In those conditions, partial annulment of the contested
decision, which would be limited to the contested provisions, would have the effect of removing that temporal requirement,
meaning that uncompetitive coal mines would not have to cease operations by 31 December 2018, but could continue to run and
to receive State aid indefinitely, contrary to the purpose of the contested decision, set out in paragraph 28 of this judgment.

32      It follows that the General Court committed no error of law in finding, in paragraphs 33, 35 to 37 and 40 of the order under
appeal, that the contested provisions were intrinsically linked with the very substance of the contested decision.

33      With regard to the complaint that the General Court, for the assessment of whether the contested provisions were severable,
should have used a counterfactual scenario consisting of analysing whether removing the contested provisions would have prevented
the contested decision from attaining its specific purpose, it must be considered that, even if it is true that it was required
to do so, the General Court did in fact undertake such an analysis. In fact, in paragraph 38 of the order under appeal, it
found that the partial annulment sought by Carbunión would result in the contested decision, under which State aid to the
coal sector can be authorised only until the definitive closure of the production units receiving the aid, namely by 31 December
2018 at the latest, being replaced by a different decision authorising the grant of such aid without any limitation in time.
Therefore, the complaint is based on a manifestly erroneous reading of the order under appeal.

34      The same is true of the complaint that the General Court did not individually analyse the severability of the contested provisions,
without it being necessary to assess whether it was required to undertake such an analysis. In paragraphs 45 and 46 of the
order under appeal, the General Court did in fact individually analyse Articles 3(1)(a) and (f) of the contested decision
in relation to their severability from the remainder of that decision. With regard to Article 3(1)(b) and (3) thereof, Carbunión
is similarly not entitled to challenge, before this Court, a lack of individual analysis of those provisions, given that it
did not put forward arguments supporting the severability of those provisions before the General Court, as is apparent from
paragraph 44 of the order under appeal.

35      Having regard to the foregoing considerations, the first ground relied on by Carbunión in support of its appeal must be rejected
as manifestly unfounded.

*The third and fourth grounds of appeal*

 Arguments of the parties

36      By its third and fourth grounds of appeal, which should be examined together, Carbunión maintains that the General Court committed
an error of law in holding that the provisions of Article 3(1)(a) and (f) of the contested decision taken individually were
not severable from that decision.

37      In Carbunión’s view, contrary to the finding of the General Court in paragraph 45 of the order under appeal, Article 3(1)(a)
of the contested decision defines the temporal scope of the contested decision. Thus, on the basis of its own case-law to
the effect that the provisions determining the temporal effects of a Union act may be subject to a partial annulment of that
act (judgment in *Vischim* v *Commission*, T‐380/06, EU:T:2009:392, paragraph 54), the General Court should have found that that provision was severable from the remainder
of the contested decision.

38      Carbunión also maintains that, in paragraph 46 of the order under appeal, the General Court incorrectly interpreted Article 3(1)(f)
of that decision, in finding that the compatibility with the internal market of the aid provided for by that provision was
conditional on the gradual decrease of the aid. In Carbunión’s view, that gradual decrease is merely an arrangement for granting
State aid in support of a specific industry that is severable from the remainder of the contested decision, in accordance
with the solution adopted by the Court in the judgment in *Germany* v *Commission* (EU:C:2003:514, paragraphs 35 to 37).

39      The Commission contends that those grounds of appeal are unfounded.

 Findings of the Court

40      Those grounds of appeal are manifestly unfounded.

41      It is clear, from the wording of Article 3(1)(a) of the contested decision, as the Commission has stated in its written observations,
that that provision makes the grant of closure aid subject to the establishment of a closure plan the deadline of which does
not extend beyond 31 December 2018, but does not determine the temporal scope of the contested decision. Moreover, the temporal
scope of that decision is subject to a specific requirement, in Article 9 thereof, to the effect that the decision expires
only on 31 December 2027. Therefore, the General Court was right to hold, in paragraph 45 of the order under appeal, that
the judgment in *Vischim* v *Commission* (EU:T:2009:392) could not be used to support, by analogy, the argument that Article 3(1)(a) of the contested decision was
severable from the remainder of that decision.

42      With regard to the gradual decrease of the aid pursuant to Article 3(1)(f) of the contested decision, it is sufficient to
state that, according to the introductory wording of that paragraph, read in the light of Recital 7 in the preamble to that
decision, that gradual decrease is a condition for the compatibility of closure aid for uncompetitive coal mines with the
internal market which is intrinsically linked to the very purpose of the contested decision. It is clear from those considerations
that the General Court was right to find, in paragraph 46 of the order under appeal, that Article 3(1)(f) of the contested
decision was not severable from the remainder of it, unlike the provision in question in the case that led to the judgment
in *Germany* v *Commission* (EU:C:2003:514) which related only to the financing rules of the aid scheme at issue in that case.

43      Accordingly, the third and fourth grounds of appeal put forward by Carbunión in support of its appeal must be rejected as
manifestly unfounded.

*The second and fifth grounds of appeal*

 Arguments of the parties

44      By its second and fifth grounds of appeal, which should be examined together, Carbunión maintains that the General Court committed,
in paragraph 39 of the order under appeal, an error of law, first, in finding that annulment of the contested provisions would
deprive Article 7(2) and (3) of the contested decision of its intended effect and, secondly, in relying on that finding to
conclude that the contested provisions could not be severed from the remainder of that decision.

45      The Commission contends that those grounds of appeal are ineffective and that, in any event, they are unfounded.

 Findings of the Court

46      Those grounds of appeal stem from a manifestly erroneous reading of the order under appeal. While the General Court considered,
in paragraph 39 of the order under appeal, that the partial annulment sought by Carbunión would deprive Article 7(2) and (3)
of the contested decision of its intended effect, it nevertheless follows clearly from the wording used and, in particular,
from the fact that that paragraph starts with the word ‘moreover’, that it is a supererogatory argument on which the General
Court did not rely to find, in paragraph 40 of the order under appeal, that the contested provisions were not severable from
the remainder of the contested decision.

47      In those conditions, the second and fifth grounds of appeal must be rejected as ineffective.

48      It follows from all of the foregoing considerations that the appeal must be dismissed in its entirety.

**Costs**

49      Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1)
thereof, 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 Council and the Commission have applied for costs and Carbunión has been unsuccessful, it must be ordered
to pay the costs.

On those grounds, the Court (Fifth Chamber) hereby:

1.      **Dismisses the appeal;**

2.      **Orders La Federación Nacional de Empresarios de Minas de Carbón (Carbunión) to pay the costs.**

[Signatures]

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[\*](#Footref*) Language of the case: English.