ORDER OF THE GENERAL COURT (Seventh Chamber)
25 February 2025 (*)
( Action for annulment – Energy – Regulation (EU) 2023/1805 – Provision stating that biofuels produced from food and feed crops are to be considered to have the same emission factors as the least favourable fossil fuel pathway for that type of fuel – Lack of individual concern – Inadmissibility )
In Case T‑1165/23,
ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol, established in Etterbeek (Belgium),
Pannonia Bio Zrt., established in Budapest (Hungary),
represented by M.-S. Dibling and J. Pauwelyn, lawyers,
applicants,
v
European Parliament, represented by E. Ni Chaoimh and I. Terwinghe, acting as Agents,
and
Council of the European Union, represented by R. Liudvinavičiūtė, N. Rouam and D. Bringuier, acting as Agents,
defendants,
THE GENERAL COURT (Seventh Chamber),
composed of K. Kowalik-Bańczyk, President, E. Buttigieg (Rapporteur) and I. Dimitrakopoulos, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure, in particular:
–        the application lodged at the General Court Registry on 18 December 2023,
–        the plea of inadmissibility put forward by the Council by separate document lodged at the Court Registry on 11 March 2024,
–        the plea of inadmissibility put forward by the Parliament by separate document lodged at the Court Registry on 11 March 2024,
–        the applications to intervene lodged at the Court Registry by the European Commission on 20 April 2024 and by the Renewable Fuels Association on 28 March 2024,
–        the applicants’ observations on the pleas of inadmissibility, lodged at the Court Registry on 13 May 2024,
–        the application for omission of certain information vis-à-vis the public made by the applicants by separate document on 15 May 2024 under Article 66a of the Rules of Procedure of the General Court,
makes the following
Order
1        By their action under Article 263 TFEU, the applicants, ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol (‘ePURE’), and Pannonia Bio Zrt., seek annulment of Article 10(1)(a) of Regulation (EU) 2023/1805 of the European Parliament and of the Council of 13 September 2023 on the use of renewable and low-carbon fuels in maritime transport, and amending Directive 2009/16/EC (OJ 2023 L 234, p. 48; ‘the contested regulation’), inasmuch as it states that biofuels produced from food and feed crops are to be considered to have the same emission factors as the least favourable fossil fuel pathway for that type of fuel (‘the contested provision’).
Background to the dispute
The applicants
2        ePURE is a non-profit organisation incorporated under the laws of Belgium which comprises 21 members. Of those members, 18 produce and supply renewable ethanol in the European Union. According to Article 3 of its articles of association, ePURE aims to promote a sustainable and competitive European industry producing ethanol from biomass (that is to say, from crops, waste and residues) and to promote the use of that product as a fuel as well as other uses of that product. All its producing members make renewable ethanol from crops. Some of its producing members also make ethanol from waste and residues, notably advanced renewable ethanol. The sustainable ethanol produced by ePURE’s members is mainly used as fuel.
3        Pannonia Bio is a company established in Hungary that is a producer and supplier in the European Union of renewable ethanol made from crops, waste and residues; it is not a member of ePURE.
The EU regulatory framework on renewable energy
4        On 11 December 2018, the European Parliament and the Council of the European Union adopted Directive (EU) 2018/2001 on the promotion of the use of energy from renewable sources (OJ 2018 L 328, p. 82; ‘the RED’).
5        It is apparent in particular from Article 1 of the RED that that directive sets a binding Union target for the overall share of energy from renewable sources in the European Union’s gross final consumption of energy in 2030.
6        Under point 1 of the second paragraph of Article 2 of the RED, biofuels, bioliquids and biomass fuels are considered to be ‘renewable energy’.
7        Pursuant to Article 25(1) of the RED, in order to mainstream the use of renewable energy in the transport sector, each Member State of the European Union is to set an obligation on fuel suppliers to ensure that the share of renewable energy within the final consumption of energy in the transport sector is at least 14% by 2030.
The contested regulation and the contested provision
8        On 13 September 2023, the Parliament and the Council adopted the contested regulation.
9        Recital 28 of the contested regulation states that ‘the additional greenhouse gas [“GHG”] emissions and loss of biodiversity caused by all types of [food] and feed crop-based fuels require that those fuels be considered to have the same emission factors as the least favourable pathway’.
10      It is apparent from point (a) of the first paragraph of Article 1 of the contested regulation that that regulation lays down uniform rules imposing a limit on the GHG intensity of energy used on board a ship arriving at, staying within or departing from ports under the jurisdiction of a Member State.
11      Thus, Article 4 of the contested regulation, headed ‘GHG intensity limit on energy used on board by a ship’ specifies, in paragraph 1 thereof, that the yearly average GHG intensity of the energy used on board by a ship during a reporting period is not to exceed the limit set out in paragraph 2 and, in paragraph 3 thereof, the method for calculating the GHG intensity of the energy used on board a ship. That method of calculation takes into account, inter alia, ‘GHG emission factors’ corresponding to the various types of fuel which may be delivered to a ship. Those emission factors depend both on the type of fuel in question and on its production pathway.
12      Article 7(1) of the contested regulation states that, in accordance with Articles 8 to 10 of the same regulation, companies are, for each of their ships, to monitor and report on the relevant data during a reporting period. The concept of ‘company’ is defined, in Article 3(13) of that regulation, as being, in essence, the shipowner or any other organisation which has assumed certain responsibilities from the shipowner, including that of operating the ship.
13      Lastly, Article 10 of the contested regulation, headed ‘Certification of fuels and emission factors’, states, in paragraph 1(a) thereof, that, where biofuels, biogas, renewable fuels of non-biological origin and recycled carbon fuels, as defined in the RED, must be taken into account for the purposes referred to in Article 4(1) of that regulation, biofuels and biogas produced from food and feed crops are to be considered to have the same emission factors as the least favourable fossil fuel pathway for that type of fuel.
Forms of order sought
14      The applicants claim, in essence, that the Court should:
–        annul the contested provision;
–        order the Parliament and the Council to pay the costs.
15      The Council contends that the Court should:
–        dismiss the action as inadmissible;
–        order the applicants to pay the costs.
16      The Parliament contends that the Court should:
–        dismiss the action as inadmissible;
–        in the alternative, should the Court reject its plea of inadmissibility or reserve its decision on admissibility, give the defendants new time limits to submit their observations on the substance of the case, pursuant to Article 130(8) of the Rules of Procedure of the General Court;
–        in any event, order the applicants to pay the costs.
17      In their observations on the pleas of inadmissibility, the applicants claim that the Court should:
–        reject the pleas of inadmissibility and consider the case on its merits;
–        in the alternative, given that the direct and individual concern of the applicants is intertwined with factual and legal peculiarities and complexities that relate to the merits of the case, reserve its decision on admissibility until it rules on the substance of the case, in accordance with Article 130(7) of the Rules of Procedure.
Law
The pleas of inadmissibility
18      Pursuant to Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of inadmissibility without considering the merits of the case. In the present case, the Court considers that it has sufficient information from the material in the case file and has decided to give a decision without taking further steps in the proceedings.
19      In support of their pleas of inadmissibility, the Council and the Parliament submit that the applicants do not have standing to bring proceedings under the fourth paragraph of Article 263 TFEU against the contested provision. In their view, the applicants are indeed neither directly nor individually concerned by that provision.
20      However, the applicants maintain that they are directly and individually concerned by the contested provision.
21      Pursuant to the fourth paragraph of Article 263 TFEU, any natural or legal person may institute proceedings against an act addressed to that person or which is of direct and individual concern to that person, and against a regulatory act which is of direct concern to that person and does not entail implementing measures.
22      It should be noted at the outset that the applicants are not the addressees of the contested regulation for the purposes of the first situation referred to in the fourth paragraph of Article 263 TFEU.
23      Moreover, it is apparent from the contested regulation that it was adopted under the ordinary legislative procedure and, therefore, that it is not a regulatory act but a legislative act. It follows that the applicants do not have a right of action on the basis of the third situation referred to in the fourth paragraph of Article 263 TFEU either.
24      Accordingly, in order to establish their standing to bring proceedings, the applicants must demonstrate that they are covered by the second situation referred to in the fourth paragraph of Article 263 TFEU, that is to say that the contested provision is of direct and individual concern to them.
25      In that regard, it must be borne in mind that the conditions of (i) direct concern and (ii) individual concern, laid down in the second limb of the fourth paragraph of Article 263 TFEU, are distinct and cumulative (see, to that effect, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraphs 75 and 76 and the case-law cited).
26      In the circumstances of the present case, it is necessary to examine first whether the second condition, relating to whether the applicants are individually concerned, is satisfied.
Whether Pannonia Bio is individually concerned
27      In the first place, the applicants submit that Pannonia Bio is individually concerned on the ground that it is part of a legally differentiated and closed group of operators which were identifiable at the time the contested regulation was adopted.
28      In that regard, the applicants claim that a group of persons may be individually concerned by a measure if it alters rights which those persons acquired prior to the adoption of that measure. Pannonia Bio is part of the closed group of operators composed of producers of renewable food and feed crop-based ethanol which were operating at the time the contested provision was adopted and which, on the basis of the right conferred on them by the RED to supply that ethanol to all transport sectors and the legitimate expectations created by that directive, made considerable investments in the development and production of such ethanol. In addition, Pannonia Bio and the members of ePURE were ready to produce for and supply the renewable fuel market for maritime transport. The contested provision does not allow other producers of renewable food and feed crop-based ethanol to join that group, with the result that it is closed. Indeed, there is no renewable fuels market for maritime transport without regulatory intervention and no producer of food and feed crop-based ethanol can enter it because of the prohibition imposed by the contested provision on food and feed crop-based biofuels in the maritime transport sector.
29      In the second place, the applicants claim that the contested provision specifically affects the rights and commercial interests of Pannonia Bio.
30      In that regard, the applicants note that, in judgments on State aid matters, the Court of Justice has recognised that the test of individual concern may be satisfied where the applicant adduces evidence to show that the measure at issue is liable to have a substantial adverse effect on its position on the market concerned and that, for that purpose, an adverse position on the market can be established by the loss of an opportunity to make a profit or a less favourable development than would have been the case without that measure. In the present case, in their view, the material situation and commercial interests of Pannonia Bio have been severely impacted by the contested provision, since it excludes from the renewable fuel market for maritime transport the biofuels that it produces from food and feed crops.
31      It must be recalled that, according to settled case-law, in order to be regarded as individually concerned by a measure not addressed to that person, a natural or legal person must be affected by that measure by reason of certain attributes which are peculiar to them or by reason of factual circumstances which differentiate them from all other persons and thereby distinguish them individually in the same way as the addressee (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107, and of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 34).
32      Consequently, the fact that it is possible to determine more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that that measure must be regarded as being of individual concern to those persons where it is established that that application takes effect by virtue of an objective legal or factual situation defined by the measure in question (judgments of 23 April 2009, Sahlstedt and Others v Commission, C‑362/06 P, EU:C:2009:243, paragraph 31, and of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 35).
33      In the present case, it is apparent from Article 2 of the contested regulation that that regulation applies to all ships of above 5 000 gross tonnage that serve the purpose of transporting passengers or cargo for commercial purposes, regardless of their flag. That regulation is therefore of general application, in that it applies to objectively determined situations and produces legal effects with respect to categories of persons viewed generally and in the abstract, namely the companies defined in Article 3(13) of that regulation.
34      The same is true of the contested provision, which states that biofuels produced from food and feed crops are to be considered to have the same emission factors as the least favourable fossil fuel pathway for that type of fuel.
35      The contested provision does not therefore affect Pannonia Bio by reason of certain attributes which are peculiar to it or by reason of factual circumstances which differentiate it from the companies defined in Article 3(13) of the contested regulation or from all other current or potential producers of biofuel from food and feed crops.
36      That conclusion is not called into question by the applicants’ arguments.
37      As regards, in the first place, the applicants’ line of argument alleging, in essence, that the contested provision alters the right which the RED conferred on Pannonia Bio to supply renewable ethanol to all transport sectors, it should be noted that it is true that the fact that a measure is, by its nature and scope, a measure of general application inasmuch as it applies to the interested persons in general, does not prevent it from being of individual concern to some (judgment of 23 April 2009, Sahlstedt and Others v Commission, C‑362/06 P, EU:C:2009:243, paragraph 29, and order of 7 April 2022, Bloom v Parliament and Council, T‑645/21, not published, EU:T:2022:230, paragraph 41).
38      Where a measure affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons might nevertheless be individually concerned by that measure inasmuch as they form part of a limited class of economic operators, and that can be the case particularly when the same measure alters rights acquired by the individual prior to its adoption (see, to that effect, judgments of 13 March 2008, Commission v Infront WM, C‑125/06 P, EU:C:2008:159, paragraphs 71 and 72, and of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 36).
39      As the applicants have pointed out, an action against a measure of general application brought by undertakings holding acquired rights has been held to be admissible, for example because the measure had an adverse affect on existing authorisations (judgment of 22 June 2006, Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 63) or on exclusive broadcasting rights, making it possible to regard the holders of those rights, which were clearly identifiable when the contested measure was adopted, as forming part of a ‘limited class’ (judgment of 13 March 2008, Commission v Infront WM, C‑125/06 P, EU:C:2008:159, paragraphs 71 to 77).
40      However, in the present case, first, it is apparent from points 1, 24 and 33 of the second paragraph of Article 2 of the RED that food and feed crop-based biofuels are to be regarded as ‘renewable energy’ within the meaning of that directive.
41      Second, pursuant to Article 25(1) of the RED, in order to mainstream the use of renewable energy in the transport sector, each Member State of the European Union is to set an obligation on fuel suppliers to ensure that the share of renewable energy within the final consumption of energy in the transport sector is at least 14% by 2030.
42      Thus, under the RED, food and feed crop-based biofuels complying with that directive could be taken into account in order to calculate that 14% minimum share of renewable energy within the final consumption of energy in the transport sector.
43      However, the RED does not oblige Member States to impose on fuel suppliers a minimum share of food and feed crop-based biofuel. That directive leaves Member States free to choose the composition of their respective energy mixes (see, to that effect, order of 11 June 2020, Lípidos Santiga v Commission, T‑561/19, not published, EU:T:2020:266, paragraph 32).
44      Therefore, the RED cannot be considered to have conferred on Pannonia Bio a right to supply renewable food and feed crop-based ethanol to all transport sectors.
45      Consequently, Pannonia Bio has not demonstrated that it enjoyed an acquired right, within the meaning of the case-law cited in paragraphs 38 and 39 above, which could have been altered by the contested provision.
46      Furthermore, even if, as the applicants submit, the RED does confer on producers of food and feed crop-based biofuels the right to supply those fuels to the transport sector, the rights allegedly acquired by all those producers would not, in any event, be altered by the contested provision, which merely concerns the calculation of emissions from certain fuels.
47      It should be added that, in the light of the case-law cited in paragraphs 38 and 39 above, the ‘legitimate expectations’ allegedly created by the RED, as regards the possibility of supplying ethanol produced from crops to the maritime transport sector, cannot be sufficient to distinguish the applicants individually.
48      As regards, in the second place, the applicants’ line of argument alleging, in essence, that Pannonia Bio’s material situation and commercial interests have been severely impacted by the contested provision, it should be borne in mind that the fact that certain operators are more affected economically by a measure of general application than others is not sufficient to distinguish them individually from all other operators, since the application of that measure takes effect by virtue of an objectively determined situation (see order of 21 December 2023, Broad Far (Hong Kong) and M21 v Commission, T‑791/22, not published, EU:T:2023:875, paragraph 44 and the case-law cited).
49      In the present case, it is apparent from paragraphs 33 to 35 above that the contested provision applies by reason of objectively determined situations.
50      In addition, the mere fact that natural or legal persons may lose a major source of income as a result of new legislation does not prove that they are in a specific situation and is not sufficient to establish that that legislation applies to them individually, those persons having to adduce proof of circumstances which make it possible to consider that the harm allegedly suffered is such as to distinguish them individually from all other economic operators concerned by that legislation in the same way as they are (see order of 21 December 2023, Broad Far (Hong Kong) and M21 v Commission, T‑791/22, not published, EU:T:2023:875, paragraph 45 and the case-law cited).
51      The applicants have not claimed, let alone proved, that there were circumstances which make it possible to consider that the harm allegedly suffered by Pannonia Bio as a result of the contested provision was such as to distinguish it individually from all other economic operators concerned by that legislation in the same way as it is.
52      Moreover, it should be noted that it is apparent from the applicants’ observations on the pleas of inadmissibility that although ethanol produced by Pannonia Bio from crops can be supplied to the maritime transport sector, Pannonia Bio does not currently supply that sector. It is therefore not currently active in the renewable fuel market for maritime transport. Contrary to what the applicants claim, Pannonia Bio’s position on the relevant market cannot therefore be regarded as substantially affected (see, to that effect, judgment of 2 September 2021, NeXovation v Commission, C‑665/19 P, EU:C:2021:667, paragraph 28).
53      In any event, the applicants have not established, in respect of Pannonia Bio and certain ePURE members, a loss of profit or a less favourable development than would have been the case in the absence of the contested provision.
54      Although the applicants produced documents in support of their argument that Pannonia Bio, and some of the members of ePURE, made substantial investments, after the adoption of the RED, in crop-based ethanol production facilities in the European Union in order to be able to supply the European market for renewable fuels with biofuels, it is not apparent from those documents that those investments were intended to supply the maritime transport sector and, therefore, that those investments were affected by the contested provision.
55      It follows that Pannonia Bio is not individually concerned by the contested provision.
Whether ePURE is individually concerned
56      Actions brought by associations have been held to be admissible in three well-defined situations: first, where a legal provision expressly grants trade associations a series of procedural rights, second, where the association represents the interests of its members who would be entitled to bring proceedings in their own right and, third, where the association is differentiated by reason of the impact on its own interests as an association, in particular because its negotiating position has been affected by the act in respect of which annulment is sought (see order of 7 April 2022, Bloom v Parliament and Council, T‑645/21, not published, EU:T:2022:230, paragraph 42 and the case-law cited).
57      In the present case, the applicants have not put forward any evidence to suggest that the conditions relating to the first situation referred to in paragraph 56 above could be satisfied.
58      Instead, the applicants put forward arguments relating to the second and third situations referred to in paragraph 56 above.
59      First, the applicants claim that ePURE is individually concerned in so far as it represents the interests of its members which are themselves entitled to bring proceedings for the same reasons Pannonia Bio is entitled to bring proceedings. According to the applicants, they also made investments in the development and production of crop-based ethanol on the basis of the legal framework resulting from the RED and form part of the closed class of operators whose legal situation and commercial interests have been affected by the contested provision.
60      In that regard, it is sufficient to note that that line of argument is identical to the one put forward in respect of Pannonia Bio. It should, therefore, be rejected on the same grounds.
61      Second, the applicants claim that ePURE was actively involved in the discussions surrounding the legislative process for the adoption of the contested regulation on behalf of its members. According to them, ePURE was in close contact with many Members of Parliament, participated in a stakeholder workshop and proposed legislative amendments.
62      It must be noted that the applicants, in essence, merely rely on the lobbying of decision-makers that ePURE undertook, during the legislative process leading to the adoption of the contested regulation, in order to ensure the protection of the interests which it represents. However, the mere provision of information to the EU institutions during the legislative process leading to the adoption of a measure, or the fact that an association has taken the initiative of contacting those institutions with a view to influencing their action, and has been heard or consulted in that context, is not sufficient to establish that the act in question adversely affects a clearly defined negotiating position or a similar position which the applicant occupies and which places it in a factual situation that differentiates it from any other person (see order of 7 April 2022, Bloom v Parliament and Council, T‑645/21, not published, EU:T:2022:230, paragraph 52 and the case-law cited).
63      Thus, the role played by ePURE in the legislative procedure that led to the adoption of the contested regulation cannot be regarded as sufficient to confer on it a particular status comparable to that of a negotiator within the meaning of the case-law cited in paragraph 56 above.
64      Furthermore, as regards the share of the production of crop-based ethanol in the European Union that the applicants allegedly represent, it should be noted, first, that that share has not been established. Indeed, Pannonia Bio’s share of that production as indicated by the applicants is not supported by evidence and the share stated for all ePURE members is distorted given that it includes, as is apparent from the applicants’ observations on the pleas of inadmissibility, the share of one member which does not produce renewable crop-based ethanol in the European Union.
65      Second, the applicants do not explain how the share of the production of crop-based ethanol in the European Union that the applicants allegedly represent, if it were established, would permit the inference that they are individually concerned by the contested provision. If, by relying on that share, they seek to argue that it is possible to determine more or less precisely the number or even the identity of the persons to whom that provision applies, that argument must be rejected for the reasons set out in paragraphs 32 to 35 above.
66      It follows that ePURE is not individually concerned by the contested provision either.
67      Accordingly, it must be concluded, without there being any need to examine whether the applicants are directly concerned by that provision, that they do not have standing to bring proceedings under the second limb of the fourth paragraph of Article 263 TFEU.
68      The Council and the Parliament are therefore justified in claiming that the applicants do not have standing to bring proceedings. Therefore, the pleas of inadmissibility must be upheld and the action must be dismissed as inadmissible.
The applications to intervene
69      Under Article 142(2) of the Rules of Procedure, the intervention becomes devoid of purpose if the application is declared inadmissible. In the present case, since the action is being dismissed as inadmissible, there is no longer any need to adjudicate on the applications to intervene lodged by the Commission and the Renewable Fuels Association.
Costs
70      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Parliament and the Council have applied for costs and the applicants have been unsuccessful, the latter must be ordered to pay the costs.
71      However, as regards the costs relating to the applications to intervene, pursuant to Article 144(10) of the Rules of Procedure, the main parties and the applicants for leave to intervene, namely the Commission and Renewable Fuels Association, are each to bear their own costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      There is no longer any need to adjudicate on the applications to intervene of the European Commission and the Renewable Fuels Association.
3.      ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol, and Pannonia Bio Zrt. shall bear their own costs and pay those incurred by the European Parliament and the Council of the European Union, with the exception of those relating to the applications to intervene.
4.      The Parliament, the Council and the applicants for leave to intervene referred to in point 2 of this operative part shall each bear their own costs relating to the applications to intervene.
Luxembourg, 25 February 2025.
V. Di Bucci
K. Kowalik-Bańczyk
Registrar
President
*      Language of the case: English.