62022TO0628
ORDER OF THE GENERAL COURT (Sixth Chamber)
21 June 2023 (
*1
)
(Action for annulment – Environment – Commission Delegated Regulation (EU) 2022/1214 – Taxonomy – Economic activities relating to fossil gas and nuclear energy – Inclusion in sustainable economic activities – Member of the European Parliament – Lack of direct concern – Inadmissibility)
In Case T‑628/22,
René Repasi, residing in Karlsruhe (Germany), represented by H.‑G. Kamann, D. Fouquet, lawyers, F. Kainer and M. Nettesheim, professors,
applicant,
v
European Commission, represented by F. Erlbacher, A. Nijenhuis and G. von Rintelen, acting as Agents,
defendant,
THE GENERAL COURT (Sixth Chamber),
composed of M.J. Costeira, President, P. Zilgalvis (Rapporteur) and E. Tichy-Fisslberger, Judges,
Registrar: V. Di Bucci,
makes the following
Order
1
By his action under Article 263 TFEU, the applicant, Mr René Repasi, seeks the annulment of Commission Delegated Regulation (EU) 2022/1214 of 9 March 2022 amending Delegated Regulation (EU) 2021/2139 as regards economic activities in certain energy sectors and Delegated Regulation (EU) 2021/2178 as regards specific public disclosures for those economic activities (OJ 2022 L 188, p. 1; ‘the contested regulation’).
Background to the dispute
2
On 18 June 2020, the European Parliament and the Council of the European Union adopted Regulation (EU) 2020/852 on the establishment of a framework to facilitate sustainable investment, and amending Regulation (EU) 2019/2088 (OJ 2020 L 198, p. 13), which establishes the criteria for determining whether an economic activity qualifies as environmentally sustainable for the purposes of determining the degree to which an investment is environmentally sustainable.
3
Article 3 of Regulation 2020/852 sets out criteria for environmentally sustainable economic activities in the light of six environmental objectives set out in Article 9 of that regulation.
4
Article 4 of Regulation 2020/852 provides that the Member States and the European Union are to apply the criteria set out in Article 3 of that regulation to determine whether an economic activity qualifies as environmentally sustainable for the purposes of any measure setting out requirements for financial market participants or issuers in respect of financial products or corporate bonds that are made available as environmentally sustainable.
5
Under Article 9 of Regulation 2020/852, climate change mitigation, climate change adaptation, the sustainable use and protection of water and marine resources, the transition to a circular economy, pollution prevention and control, and the protection and restoration of biodiversity and ecosystems are environmental objectives.
6
In addition, according to recital 41 of Regulation 2020/852:
‘In addition to the use of climate-neutral energy and more investments in already low-carbon economic activities and sectors, the transition requires substantial reductions in greenhouse gas emissions in other economic activities and sectors for which there are no technologically and economically feasible low-carbon alternatives. Those transitional economic activities should qualify as contributing substantially to climate change mitigation if their greenhouse gas emissions are substantially lower than the sector or industry average, they do not hamper the development and deployment of low-carbon alternatives and they do not lead to a lock-in of assets incompatible with the objective of climate-neutrality, taking into account the economic lifetime of those assets. The technical screening criteria for such transitional economic activities should ensure that those transition activities have a credible path towards climate-neutrality, and should be adjusted accordingly at regular intervals.’
7
As regards those transitional economic activities, Article 10(3) of Regulation 2020/852 provides that the European Commission is to adopt a delegated act in accordance with Article 23 of that regulation, first, to establish technical screening criteria for determining the conditions under which a specific economic activity qualifies as contributing substantially to climate change mitigation and, second, to establish, for each relevant environmental objective, technical screening criteria for determining whether an economic activity in respect of which technical screening criteria have been established causes significant harm to one or more of those objectives.
8
On 4 June 2021, the Commission adopted Delegated Regulation (EU) 2021/2139, supplementing Regulation (EU) 2020/852 by establishing the technical screening criteria for determining the conditions under which an economic activity qualifies as contributing substantially to climate change mitigation or climate change adaptation and for determining whether that economic activity causes no significant harm to any of the other environmental objectives (OJ 2021 L 442, p. 1).
9
Regulation 2021/2139 establishes technical screening criteria covering several sectors and economic activities which have the potential to contribute to the objectives of climate change mitigation and adaptation. It sets out, for each of those activities, criteria for technical, quantitative or qualitative screening, which make it possible to determine whether the activity classified contributes substantially to the objectives of climate change mitigation and adaptation and whether it does not cause significant damage to the other objectives set out in Regulation 2020/852.
10
On 9 March 2022, the Commission adopted the contested regulation, the purpose of which is, inter alia, to establish technical screening criteria to include certain activities of the nuclear energy and gas sectors in the field of transitional activities within the meaning of Article 10(2) of Regulation 2020/852.
11
The applicant is a Member of the European Parliament.
Forms of order sought
12
The applicant claims, in essence, that the Court should:
–
annul the contested regulation; and
–
order the Commission to pay the costs.
13
The Commission contends that the Court should:
–
declare the action inadmissible;
–
order the applicant to pay the costs.
14
In his observations on the plea of inadmissibility, the applicant contends that the plea should be rejected.
Law
15
Under Article 130(1) of the Rules of Procedure of the General Court, if the defendant so requests, the General Court may rule on the plea of inadmissibility without going to the substance of the case. Pursuant to Article 130(6) of the Rules of Procedure, the General Court may decide to open the oral part of the procedure in respect of that application.
16
In the present case, the General Court considers that it has sufficient information from the documents before it and decides that there is no need to open the oral part of the procedure.
17
The Commission submits that the applicant is not directly concerned by the contested regulation.
18
The Commission submits, in essence, that to recognise the applicant’s right of action would upset the institutional balance, and be contrary to the democratic principle of the adoption of decisions by majority and to the exclusion of actio popularis.
19
The Commission adds that the principle of the right to effective judicial protection and respect for the constitutional traditions common to the Member States cannot be relied on in support of recognition of the applicant’s right of action to argue that the Parliament’s prerogatives have been infringed.
20
The applicant submits, in essence, that the legal status of Member of the Parliament confers on him, under EU law and the principle of representative democracy, voting and initiative rights, a right to participate in a lawful legislative procedure, procedural rights to respect for the provisions on competence and procedure, and a right to defend the democratic powers of the Parliament.
21
The applicant submits that recognition of his standing to bring proceedings as a Member would, contrary to the Commission’s assertion, have the effect of protecting the institutional balance by guaranteeing a right of action in order to check that the choice of procedure for the adoption of a measure is not contrary to Members’ rights, without thereby allowing an actio popularis.
22
The applicant thus claims, in essence, that, by adopting the contested regulation, the Commission exceeded the power to adopt delegated acts conferred on it by virtue of Article 290 TFEU, with the result that the contested regulation infringed the Parliament’s legislative competence and, therefore, the applicant’s rights as a Member of Parliament. He infers therefrom that he must be considered to be directly and individually concerned by the contested regulation.
23
It should be borne in mind at the outset that the admissibility of an action brought by a natural or legal person 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 have 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 them. Second, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 19, and of 13 March 2018, Industrias Químicas del Vallés v Commission, C‑244/16 P, EU:C:2018:177, paragraph 39).
24
The condition that a natural or legal person must be directly concerned by the decision against which the action is brought, laid down in the fourth paragraph of Article 263 TFEU, requires two cumulative criteria to be met, namely, first, the contested measure must directly affect the legal situation of the individual and, second, it must leave no discretion to its addressees who are responsible for its implementation, such implementation being purely automatic and resulting from the EU rules alone without the application of other intermediate rules (see, to that effect, judgments of 5 May 1998, Glencore Grain v Commission, C‑404/96 P, EU:C:1998:196, paragraph 41, and of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 42).
25
It should also be borne in mind that, in accordance with Article 289 TFEU, the ordinary legislative procedure consists of the adoption of a regulation, directive or decision jointly by the Parliament and the Council on a proposal from the Commission (see judgment of 14 April 2015, Council v Commission, C‑409/13, EU:C:2015:217, paragraph 69).
26
Furthermore, Article 290(1) TFEU provides that a legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act. In accordance with the second subparagraph of that provision, the objectives, content, scope and duration of the delegation of power must be explicitly defined in the legislative act granting such a delegation. That requirement implies that the purpose of granting a delegated power is to achieve the adoption of rules coming within the regulatory framework as defined by the basic legislative act (judgment of 17 March 2016, Parliament v Commission, C‑286/14, EU:C:2016:183, paragraph 30).
27
The possibility of delegating powers provided for in Article 290 TFEU aims to enable the legislature to focus on the essential elements of a piece of legislation and on the non-essential elements in respect of which it deems it appropriate to legislate, while entrusting the Commission with the task of ‘supplementing’ certain non-essential elements of the legislative act adopted or ‘amending’ such elements in the context of a delegation conferred on it (judgment of 17 March 2016, Parliament v Commission, C‑286/14, EU:C:2016:183, paragraph 54).
28
It follows that the essential rules governing the matter in question must be laid down in the basic legislation and may not be delegated (see, to that effect, judgments of 5 September 2012, Parliament v Council, C‑355/10, EU:C:2012:516, paragraph 64, and of 10 September 2015, Parliament v Council, C‑363/14, EU:C:2015:579, paragraph 46).
29
Furthermore, a delegated power must, in any event, comply with the essential elements of the enabling act and come within the regulatory framework as defined by the basic legislative act (judgment of 11 May 2017, Dyson v Commission, C‑44/16 P, EU:C:2017:357, paragraph 53).
30
In that respect, it is important to remember that, as is clear from the case-law, an act of Parliament which affects the conditions under which its Members perform their parliamentary duties is an act which directly affects their legal position (see, to that effect, judgments of 29 June 2004, Front National v Parliament, C‑486/01 P, EU:C:2004:394, paragraph 35, and of 2 October 2001, Martinez and Others v Parliament, T‑222/99, T‑327/99 and T‑329/99, EU:T:2001:242, paragraphs 60 to 65).
31
However, that case-law concerns measures of internal organisation of the Parliament which directly affect its Members and cannot be applicable to the present case in which the rights relied on by the applicant, as a Member of the European Parliament, could be affected only indirectly by the alleged infringement of the Parliament’s legislative competence.
32
Even if, by adopting the contested regulation, the Commission exceeded the power to adopt delegated acts conferred on it by virtue of Article 290 TFEU, the applicant’s rights referred to in paragraph 20 would be affected only indirectly by such an infringement of the Parliament’s legislative competence. All the applicant’s rights connected with the exercise of the Parliament’s legislative competence are intended to be exercised only in the context of the Parliament’s internal procedures.
33
Contrary to what the applicant claims, it cannot therefore be held that an infringement of the Parliament’s prerogatives directly affects the legal situation of its Members within the meaning of the case-law referred to in paragraph 24 above.
34
The right to take part in a regular legislative procedure, to comply with the provisions on competence and procedure, to defend the democratic powers of Parliament and the rights to vote, to take initiative and to participate in order to exert political influence, relied on by the applicant, cannot therefore be regarded as directly affected by the adoption of the contested regulation.
35
The principle of representative democracy and the principle of the rule of law, relied on by the applicant, are not such as to call that finding into question. As is apparent from the second paragraph of Article 263 TFEU, the Parliament has a right of action against acts of EU law, so that observance of those principles is ensured by the system of remedies provided for by the Treaties.
36
For the same reason, the applicant’s interpretation to the effect that MEPs should qualify as directly concerned by acts affecting rules of competence, fundamental provisions of the legislative procedure or acts constituting a misuse of powers cannot be accepted.
37
Last, since the applicant’s arguments relating to the institutional balance or the right to legal protection of the minority are not such as to demonstrate that his legal situation is directly affected by the contested regulation, they must also be rejected.
38
Since the applicant’s argument must be understood as inviting the General Court to grant Members of the Parliament a specific right of action, irrespective of the conditions laid down in Article 263 TFEU, and intended to defend the democratic powers of the Parliament and to constitute an instrument of opposition on the substance, it suffices to note that the TFEU does not provide for such an action and that it is not for the General Court to create detailed rules for bringing actions not provided for by the Treaties (see, to that effect and by analogy, judgment of 25 July 2002, Unión de Pequeños Agricultores v Council, C‑50/00 P, EU:C:2002:462, paragraph 45).
39
The application is therefore inadmissible.
40
In those circumstances, there is no longer any need to rule on the application for leave to intervene submitted by the French Republic, in accordance with Article 142(2) of the Rules of Procedure.
Costs
41
Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to pay the costs if they have been applied for in the successful party’s pleadings.
42
Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by Commission.
43
Under Article 144(10) of the Rules of Procedure, the French Republic is to bear its own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber),
hereby orders:
1.
The action is dismissed as inadmissible.
2.
There is no longer any need to rule on the application for leave to intervene submitted by the French Republic.
3.
The applicant shall bear his own costs and pay those incurred by the European Commission.
4.
The French Republic shall bear its own costs.
Luxembourg, 21 June 2023.
V. Di Bucci
Registrar
M.J. Costeira
President
(
*1
)	Language of the case: German.