62008CO0006_EN
Parties
Grounds
Operative part
Parties
In Case C‑6/08 P,
APPEAL under Article 56 of the Statute of the Court of Justice, brought on 26 December 2007,
US Steel Košice s.r.o.,
established in Košice (Slovakia), represented by C. Thomas, Solicitor, and E. Vermulst, advocaat,
appellant,
the other party to the proceedings being:
Commission of the European Communities,
represented by U. Wölker and D. Lawunmi, acting as Agents, with an address for service in Luxembourg,
defendant at first instance,
THE COURT (Sixth Chamber),
composed of L. Bay Larsen, President of the Chamber, K. Schiemann and C. Toader (Rapporteur), Judges,
Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: R. Grass,
after hearing the Advocate General,
makes the following
Order
Grounds
1. By its appeal, US Steel Košice s.r.o. (‘the appellant’) asks the Court of Justice to set aside the order of the Court of First Instance of the European Communities of 1 October 2007 in Case T-27/07 US Steel Košice
v Commission (‘the order under appeal’), by which it dismissed as inadmissible the appellant’s application for the annulment of the Commission decision of 29 November 2006 concerning the national allocation plan for greenhouse gas emission allowances notified by Slovakia for the period from 2008 to 2012 (‘the contested decision’).
Legal context
The Act of Accession relating to the Slovak Republic
2. The Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (OJ 2003 L 236, p. 33; ‘the Act of Accession’) provides, in Article 24, for transitional measures which, as regards the Slovak Republic, are set out in Annex XIV thereto (OJ 2003 L 236, p. 915).
3. Point 2(a) of Chapter 4 (Competition policy) of Annex XIV states:
‘Notwithstanding Articles 87 [EC] and 88 [EC], [the Slovak Republic] may apply until the end of the fiscal year 2009 [a] corporate income tax exemption … to one beneficiary in the steel industry, provided that the following conditions are fulfilled:
(i) the aid beneficiary caps its production of flat products and its sales of flat products (hot-rolled, cold-rolled and coated) in the enlarged EU …;
(ii) the beneficiary does not extend its range of groups of finished products existing on 13 December 2002;
(iii)	the total aid granted to the beneficiary … does not exceed a total of USD 500 million …;
…’
4. Point 2(b) of Chapter 4 of Annex XIV to the Act of Accession requires the Slovak Republic to supply half‑yearly monitoring reports containing information as regards the aid beneficiary, with the last report to be submitted by the end of April 2010, unless agreed otherwise by the Commission, the Council of the European Union and the Slovak Republic.
5. Point 2(d) of Chapter 4 of Annex XIV to the Act of Accession provides:
‘If the total aid reaches the maximum admissible level set out in subparagraph (a)(iii) before the end of the fiscal year 2009, the tax exemption shall be discontinued and the normal corporate income tax shall be due by the beneficiary for that part of the company’s earnings whose exemption from the tax would result in exceeding the maximum admissible level.’
Directive 2003/87/EC
6. Article 1 of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32; ‘the Directive’) establishes such a scheme in order to promote reductions of greenhouse gas emissions, in particular of carbon dioxide, in a cost-effective and economically efficient manner.
7. The Directive thus seeks to implement the Community’s obligations to reduce emissions under the United Nations Framework Convention on Climate Change and the Kyoto Protocol. In this respect, the Council adopted Decision 2002/358/EC of 25 April 2002 concerning the approval, on behalf of the European Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments thereunder (OJ 2002 L 130, p. 1).
8. According to Article 2 of the Directive, the Directive is to apply to emissions from the activities listed in Annex I thereto, including installations for the production and processing of ferrous metals.
9. Article 11 of the Directive provides for an initial period for the allocation of allowances from 2005 to 2007, followed by a second period from 2008 to 2012 (‘the second allocation period’).
10. The conditions and procedures under which the national authorities are to allocate allowances to operators of installations on the basis of a national allocation plan (‘NAP’) during those two allocation periods are provided for in Articles 9 to 11 of the Directive.
11. The first subparagraph of Article 9(1) of the Directive provides:
‘For each period referred to in Article 11(1) and (2), each Member State shall develop a [NAP] stating the total quantity of allowances that it intends to allocate for that period and how it proposes to allocate them. The [NAP] shall be based on objective and transparent criteria, including those listed in Annex III, taking due account of comments from the public. …’
12. The second subparagraph of Article 9(1) of the Directive requires Member States to publish and notify a NAP to the Commission and to the other Member States for each allocation period.
13. Article 9(3) of the Directive is worded as follows:
‘Within three months of notification of a [NAP] by a Member State under paragraph 1, the Commission may reject that [NAP], or any aspect thereof, on the basis that it is incompatible with the criteria listed in Annex III or with Article 10. The Member State shall only take a decision under Article 11(1) or (2) if proposed amendments are accepted by the Commission. Reasons shall be given for any rejection decision by the Commission.’
14. As regards the allocation and the issue of allowances, paragraphs 2 and 3 of Article 11 of the Directive provide:
‘2. For the five-year period beginning 1 January 2008, and for each subsequent five-year period, each Member State shall decide upon the total quantity of allowances it will allocate for that period and initiate the process for the allocation of those allowances to the operator of each installation. This decision shall be taken at least 12 months before the beginning of the relevant period and be based on the Member State’s [NAP] developed pursuant to Article 9 and in accordance with Article 10, taking due account of comments from the public.
3. Decisions taken pursuant to paragraph 1 or 2 shall be in accordance with the requirements of the [EC] Treaty, in particular Articles 87 and 88 thereof. When deciding upon allocation, Member States shall take into account the need to provide access to allowances for new entrants.’
15. Annex III to the Directive sets out 11 criteria for NAPs.
16. The criteria set out in points 1 to 3, 5 and 10 of that annex read as follows:
‘1. The total quantity of allowances to be allocated for the relevant period shall be consistent with the Member State’s obligation to limit its emissions pursuant to Decision 2002/358/EC and the Kyoto Protocol, taking into account, on the one hand, the proportion of overall emissions that these allowances represent in comparison with emissions from sources not covered by this Directive and, on the other hand, national energy policies, and should be consistent with the national climate change programme. The total quantity of allowances to be allocated shall not be more than is likely to be needed for the strict application of the criteria of this Annex. Prior to 2008, the quantity shall be consistent with a path towards achieving or overachieving each Member State’s target under Decision 2002/358/EC and the Kyoto Protocol.
2. The total quantity of allowances to be allocated shall be consistent with assessments of actual and projected progress towards fulfilling the Member States’ contributions to the Community’s commitments made pursuant to [Council] Decision 93/389/EEC [of 24 June 1993 for a monitoring mechanism of Community C0 2
and other greenhouse gas emissions (OJ 1993 L 167, p. 31)].
3. Quantities of allowances to be allocated shall be consistent with the potential, including the technological potential, of activities covered by this scheme to reduce emissions. Member States may base their distribution of allowances on average emissions of greenhouse gases by product in each activity and achievable progress in each activity.
…
5. The [NAP] shall not discriminate between companies or sectors in such a way as to unduly favour certain undertakings or activities in accordance with the requirements of the Treaty, in particular Articles 87 and 88 thereof.
…
10. The [NAP] shall contain a list of the installations covered by this Directive with the quantities of allowances intended to be allocated to each.’
17. According to Article 13(1) of the Directive, allowances are only valid for emissions during the period for which they are issued.
Background to the proceedings
18. It is clear from the order under appeal that, according to its own statements, the appellant is the only integrated steel producer in Slovakia and is the ‘beneficiary in the steel industry’ within the meaning of point 2(a) of Chapter 4 of Annex XIV to the Act of Accession.
19. With regard to the implementation of the transitional measures in the Act of Accession, the appellant, the Slovak Republic and the Commission discussed, on several occasions, the production caps set by the Act.
20. As regards the application of the Directive, it appears that, following public consultation during which the appellant asked the Slovak Government for the allocation of a given quantity of allowances, the Slovak Government, on 18 August 2006, notified to the Commission its NAP for the second allocation period. According to the NAP, the Slovak Republic intended to allocate an average of 41.3 million tonnes of CO 2
equivalent per year in total, of which 11.7321676 million tonnes were to be allocated to the appellant. In explaining the quantity earmarked for the appellant, the Slovak Government stated that future emissions would be higher than those in 2005.
21. By the contested decision, adopted on the basis of Article 9(3) of the Directive and addressed to the Slovak Republic, the Commission took the view, in Article 1 thereof, that the NAP notified by the Slovak Republic was incompatible with the criteria set out in points 1 to 3, 5 and 6 of Annex III to the Directive.
22. With respect to the criteria laid down in the said points 1 to 3, the Commission took the view, in particular, that, of the total of emission allowances envisaged by the Slovak Republic, a quantity of 10.387739 million tonnes of CO 2
equivalent was not consistent with the potential, including the technological potential, to reduce emissions. As regards the criterion set out in point 5, the Commission took the view that the proposed allocation exceeded the level corresponding to production limitations ensuing from Annex XIV to the Act of Accession.
23. In that respect, paragraphs 17 and 19 of the grounds of the contested decision read as follows:
‘17. … pursuant to criterion [No] 5 of Annex III to [Directive 2003/87], the Commission has examined the correspondence of proposed allocation with production limitations ensuing from Annex XIV to the Act of Accession. These production limitations constitute one of the conditions stipulated in Chapter 4 point 2 of Annex XIV to the Act of Accession under which the Slovak Republic is allowed to apply until the end of the fiscal year 2009 the corporate tax exemption up to the maximum specified aid amount to one beneficiary in the steel industry. The Commission finds that the proposed allocation does not consistently and systematically correspond to those limitations.
…
19. The Commission therefore considers that the allocation proposed by the Slovak authorities for years 2008 and 2009 provides an undue advantage to one operator since it will partially correspond to production that it will not be allowed to produce. Allocating allowances beyond legal, economic or technical limitations is paramount to allocating beyond the level of expected needs. The Commission considers that where the proposed allocation exceeds the level corresponding to the production limitations, any operator concerned is unduly favoured, which contravenes [the] criterion [referred to in point] 5 of Annex III to [Directive 2003/87]. Moreover, the Commission at this stage cannot exclude that any State aid involved in allocation exceeding this level may be found incompatible with the common market should it be assessed in accordance with Articles 87 [EC] and 88 [EC].’
24. The Commission thus took the view that the Slovak authorities had to reduce the total quantity of allowances envisaged for the second allocation period by 10.387739 million tonnes of CO 2
equivalent, so that it would correspond to the production limitations under Annex XIV to the Act of Accession.
25. Consequently, in Article 2 of the contested decision, the Commission stated that it would not raise objections to the Slovak NAP, provided the proposed allocation was amended in such a way that it corresponded to those production limitations and that those amendments to the NAP were made in a non-discriminatory manner.
26. In addition, the Commission stated, in Article 3(2) of the contested decision, that the NAP could be amended without prior acceptance by it if those amendments consisted in modifications of the allocation of allowances to individual installations listed in the NAP within the total quantity to be allocated to installations listed therein resulting from improvements to data quality or to reduce the share of the allocation of allowances free of charge within the limits set in Article 10 of the Directive.
27. Article 3(3) of that decision also stated that any other amendments, apart from those made to comply with Article 2 of the said decision, required prior notification and prior acceptance by the Commission.
The order under appeal
28. By application lodged at the Registry of the Court of First Instance on 7 February 2007, the appellant brought an action seeking annulment of the contested decision.
29. By separate document lodged at the Registry of the Court of First Instance on 19 March 2007, the Commission raised an objection of inadmissibility pursuant to Article 114 of the Rules of Procedure of the Court of First Instance. The appellant lodged its observations on that objection on 11 April 2007.
30. By the order under appeal, the Court of First Instance dismissed the action brought by the appellant as inadmissible. The Court of First Instance held that the contested decision was not of direct concern to the appellant for the purposes of Article 230 EC.
31. In support of that finding, the Court of First Instance held, in paragraph 53 of the order under appeal, that the contested decision was addressed to the Slovak Republic and that, therefore, the question had to be examined whether it was of direct concern to the appellant.
32. In this respect, the Court of First Instance recalled the conditions under which an act not addressed to a natural or legal person may be considered to be of direct concern to him for the purposes of Article 230 EC.
33. In paragraph 55 of the order under appeal, basing itself on the case-law of the Court of Justice, the Court of First Instance said that, first, the measure at issue must directly affect the legal situation of the person concerned, and, 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 alone without the application of other intermediate rules (Case C‑386/96 P Dreyfus
v Commission
[1998] ECR I‑2309, paragraph 43).
34. Moreover, the Court of First Instance stated that that second condition is also fulfilled 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 (see Case 11/82 Piraiki-Patraiki and Others
v Commission
[1985] ECR 207, paragraphs 7 to 10, and Dreyfus
v Commission, paragraph 44).
35. In paragraphs 56 to 59 of the order under appeal, the Court of First Instance examined the roles and powers allocated to the Commission and the Member States respectively under the Directive, particularly by Articles 9 to 11. The Court of First Instance concluded, in paragraph 60 of the order, that it followed both from the wording of the Directive and from the objectives of the system which it establishes that it is the decision of the national authorities taken pursuant to Article 11(1) or (2) of the Directive allocating allowances to the operators of the installations concerned which affected the operators’ legal situation.
36. Moreover, the Court of First Instance considered, in paragraph 61 of the order under appeal, that none of the arguments put forward by the appellant affected that conclusion.
37. In that respect, the Court of First Instance pointed out, in paragraph 73 of the order under appeal, that the contested decision did not have the effect of placing the appellant in a situation similar to that of a recipient of State aid declared to be incompatible with the common market pursuant to a formal decision for the purposes of Article 88 EC. Therefore, according to the Court of First Instance, the appellant could not successfully rely on the case-law which has held that actions for annulment brought by such recipients are admissible.
38. The Court of First Instance then concluded, in paragraph 74 of the order under appeal, that the particularities of the case relating to the production caps relied on by the appellant were not such as to affect the discretion which the Slovak Government had in the allocation of specific allowances to individual installations provided that the limits on the total quantity of allowances to be allocated were respected.
39. The Court of First Instance also held, in paragraph 76 of the order, that, in any event, in the system provided for by the Directive, it was for the Member States to distribute the allowances amongst the installations in question in the exercise of their discretion. Hence, the definitive and direct determination of the rights and obligations of the operators of those installations resulted only from the decision by the Member State adopted pursuant to Article 11(1) of the Directive.
40. Concluding, in paragraph 79 of the order under appeal, that the contested decision was not of direct concern to the appellant, since the allocation of the quantity of individual allowances within the limits of the total quantity of allowances was for the Slovak Government to decide freely on its own, the Court of First Instance proceeded to declare the action inadmissible.
Forms of order sought
41. By its appeal, the appellant asks the Court of Justice to set aside the order under appeal, to refer the matter back to the Court of First Instance and to order the Commission to pay the costs.
42. The Commission, for its part, contends that the appeal should be dismissed as unfounded and that the appellant should be ordered to pay the costs.
43. In accordance with Article 119 of the Rules of Procedure, where the appeal is clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, by reasoned order dismiss the appeal.
The appeal
44. In support of its appeal, the appellant submits, in essence, a single ground for the annulment of the order under appeal alleging an error of law in the application of the condition of direct concern for the purposes of Article 230 EC.
45. This ground can essentially be broken up into three component parts concerning, first, the direct effect of the contested decision in so far as it rejected the NAP submitted by the Slovak Republic and required and inevitably meant a reduction of the allocations to the appellant, second, erroneous assessment of the Member States’ margin of discretion with respect to the allocation of greenhouse gas emission allowances and, third, the refusal to recognise the similarities between the contested decision and decisions adopted in State aid or merger control proceedings.
Arguments of the parties
46. First, the appellant submits that the contested decision rejected the NAP submitted by the Slovak Government, in particular with regard to the quantities of allowances that the Slovak Government intended to allocate to the appellant. That decision led directly to a reduction in the total number of allowances that that Member State planned to allocate and, in particular, an inevitable reduction in the quantities of allowances that it had intended to grant to the appellant, given that the appellant contributed around one third of the emissions envisaged in the NAP at issue.
47. Second, the Slovak Government used its discretion in the context of defining the volume of allowances that it intended to allocate, as laid down in its NAP. The contested decision prevented the Slovak Government from implementing that NAP. In this respect, there can be no doubt that, without that decision, the Slovak Government would have allocated those allowances to the appellant and, moreover, it would even have been legally bound to do so. Therefore, the contested decision did not leave any margin of discretion or application to the Member State to which it was addressed, so that, as regards the appellant, the condition of direct concern should be considered to be fulfilled.
48. In addition, the Directive requires the Member States to define in their NAPs the quantities of allowances that they intend to allocate as well as the criteria that they will use in making those allocations. Therefore, at the time when individual allocation decisions are adopted, the Member States are required to observe the criteria laid down beforehand in their NAPs and cannot subsequently adjust the quantities that have been allocated, in contrast to what was asserted by the Court of First Instance, especially in paragraph 75 of the order under appeal, in disregard of its own case-law, resulting, in particular, from paragraphs 55 and 56 of Case T-178/05 United Kingdom v Commission [2005] ECR II-4807.
49. Third, the appellant claims that, with regard to the contested decision, it is in a situation similar to that of a beneficiary of State aid vis-à-vis a decision finding such aid to be incompatible. The situation of the appellant is also similar to that of an undertaking subject to a merger control decision.
50. The appellant submits, in particular, that the contested decision contains a finding having direct effect in so far as the Commission adopted a definitive position according to which the supposed State aid in the form of emission allowances could not be disbursed and that, consequently, the NAP had to be amended to that effect by the Slovak authorities. This constitutes a means whereby the Commission can avoid the delays of the procedure provided for under Article 88 EC.
51. The Commission, referring to the system that was put in place by the Directive, points out that allowances are attributed at national level and that it is the decisions adopted at that level that legally affect those allocated emission allowances. In this respect, however, according to Article 11(2) of the Directive, individuals, like the appellant, have the right to be consulted before the national authorities take their final allocation decision.
52. It is true that the decisions adopted in that context must comply with the criteria that the Member States submitted to the Commission in their NAPs and which the Commission accepted. However, the Member States retain a margin of discretion when it comes to the allocation of emission allowances at an individual level and the possibility of amending the total volume or individual quantities.
53. On the one hand, they may notify amendments to their NAPs. Indeed, the Slovak Government made use of that option and the Commission approved, in a decision of 7 December 2007, the amendments made, including an annual increase in the total quantity of emission allowances by an amount of 1.717100 million tonnes of CO 2
equivalent. On the other hand, the Member States continue to be able to allocate total quantities of allowances that are lower than the threshold laid down in the contested decision.
54. In any event, the Commission contends that it is not in a position to assess, on a case-by-case basis, the allocations envisaged for installations referred to in the NAP notified by the Member State and that, consequently, the contested decision is not capable of having direct effect as regards the appellant. In this respect, the list of installations referred to by the criterion laid down in point 10 of Annex III to the Directive, which must appear in the NAP notified by a Member State, is merely illustrative, allowing the Commission to assess whether the said NAP correctly reflects the requirements of the Directive.
55. Moreover, in the view of the Commission, even after the reduction indicated in the contested decision, the total quantity of emission allowances that could be allocated allowed the addressee Member State, if it had wished to do so, to increase the quantity of allowances that it intended to allocate to the appellant, a large emitter of greenhouse gases, by reducing the allocations to the small emitters. In this respect, Articles 1(1) and 2(1) of the contested decision require only an overall reduction in emissions.
56. Finally, the Commission denies that there is similarity between the procedure leading to the approval of a NAP under the Directive and State aid or merger control proceedings. The Commission contends, in particular, that the appellant was not entitled to any specific allocation, either at the time of notification of the NAP by the Slovak Government or after the adoption of the contested decision by the Commission. In principle, its legal position was unchanged, even after adoption of that decision.
57. As regards the appellant’s claim that the contested decision contains a finding of incompatibility concerning State aid, the Commission states that the Court of First Instance correctly held that a Commission decision adopted on the basis of the Directive, which in turn was adopted on the basis of Article 175 EC, cannot replace a decision that the Commission could adopt under the specific Treaty rules on State aid.
58. In this respect, the Commission states that the procedure applicable to State aid was not followed in the present case and that the appellant appears to confuse the criterion laid down in point 5 of Annex III to the Directive concerning non-discrimination and the provisions of the Treaty on State aid. The Commission rejected the NAP specifically with regard inter alia to that criterion, and not with regard to the Treaty provisions. Moreover, it even took care to make it clear that the contested decision had no effect on any subsequent proceedings under Articles 87 EC and 88 EC.
Findings of the Court
59. In accordance with settled case-law, the condition that the decision forming the subject-matter of the proceedings must be of direct concern to a natural or legal person, as laid down in the fourth paragraph of Article 230 EC, requires the contested Community measure to affect directly the legal situation of the individual and 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 (Case C‑486/01 P Front national
v Parliament
[2004] ECR I‑6289, paragraph 34, and Case C‑15/06 P Regione Siciliana
v Commission
[2007] ECR I‑2591, paragraph 31).
60. The same applies 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 ( Dreyfus
v Commission, paragraph 44, and the case-law cited there).
61. Having examined the case-law cited above, the Court of First Instance considered, in paragraphs 60 and 61 of the order under appeal, that the decision of the national authorities, taken pursuant to Article 11(1) or (2) of the Directive and allocating allowances to the operators of the installations concerned, constituted the definitive decision affecting the latter’s legal situation.
62. In this respect, it must be recalled that, in accordance with Article 11(2) and (3) of that directive, it is for each Member State, and not the Commission, to decide upon the total quantity of allowances it will allocate for the period in question, to initiate the process of allocation of those allowances and to rule on allocation of those allowances. Such a decision is based on its NAP developed pursuant to Article 9 and in accordance with Article 10 of that directive (order in Case C-503/07 P Saint-Gobain Glass Deutschland
v Commission
[2008] ECR I‑0000, paragraph 75).
63. Moreover, it is not possible to derive from the objectives of the Directive, read in the light of recital 5 in its preamble, from the criterion laid down in point 5 of Annex III thereto, or from any other provision of that directive, a guarantee for the operators of installations that a particular allocation method will be applied to them, or even a right to obtain a particular quantity of greenhouse gas emission allowances (order in Saint-Gobain Glass Deutschland
v Commission, paragraph 76).
64. As regards the argument by which the appellant attempts to show that the Member State was bound by the quantities of allowances that it intended to allocate to the appellant, which appeared as such in the Member State’s notified NAP, it is clear that the quantities mentioned in the NAP that a Member State plans to allocate to certain installations are for guidance only.
65. In the context of the notification procedure for each Member State’s NAP, as defined in Article 9(3) of the Directive, approval by the Commission essentially relates to the overall volumes of greenhouse gas emissions for each Member State and the method or methods of allocation of emission allowances that the Member State intends to apply. This is in order to check that those allowances comply with Article 10 of the Directive and are compatible with the criteria set out in Annex III thereto. Therefore, it is only when the Member State adopts a decision for the purposes of Article 11 of the Directive, and not when the Commission adopts a decision within the meaning of Article 9(3) of that directive, that an operator is legally granted a specific quantity of emission allowances.
66. In that regard, the fact that the NAP notified by the Member State to the Commission must contain a list of the installations covered by the emission trading scheme and state the allowances which that State intends to grant to those installations, does not make it possible to conclude that, by the contested decision, the Commission ruled on the individual applications concerning the volume of given allowances (see, to that effect, the order in Saint-Gobain Glass Deutschland
v Commission, paragraph 73).
67. Therefore, contrary to what the appellant claims, the Slovak Republic, to which the contested decision was addressed, could have decided to make individual allocations of allowances at levels different from those set out in its NAP since, as the Commission expressly mentioned in the contested decision, the Member State to which the decision was addressed only had to observe the overall emission ceilings and the allocation methods contained in its NAP as approved by the Commission.
68. It follows that, within the framework of the system put in place by the Directive, the Member States have a certain amount of discretion in making individual allocations of emission allowances pursuant to Article 11 of the Directive. From that point of view, in accordance with the case-law cited in paragraphs 60 and 61 of the present order, the contested decision was not such as to directly affect the legal situation of the appellant.
69. In addition, as regards the question of production limitations arising from the provisions of the Act of Accession, it must be noted that the contested decision rejected the NAP at issue on the ground that, in view in particular of those limitations, the Slovak Republic had envisaged in its NAP an overall emission volume that exceeded its potential, including its technological potential, in disregard of the criteria laid down in points 1 to 3 of Annex III to the Directive. The Commission also considered that, in view of those limitations, on which the authorisation to give State aid to the operator of a steel plant, in this case the appellant, was conditional, the Slovak Republic’s NAP, in disregard of the criterion in point 5 of that annex, envisaged an excess allocation that would have unduly favoured that operator.
70. In this respect, it is indeed clear from Article 2(2) of the contested decision that the Commission made its approval of the Slovak Republic’s NAP conditional on the proposed allocation being modified in such a way that it corresponds to production limitations ensuing from Annex XIV to the Act of Accession. Moreover, as is clear from paragraphs 68 and 69 of this order, that Member State could in any event still grant the appellant a quantity of allowances below those limitations, so that, for the purposes of the case-law set out in paragraphs 60 and 61 of this order, it retained a margin of discretion that precludes the contested decision being regarded as directly affecting the appellant.
71. Finally, as regards the appellant’s argument seeking to establish an analogy between the procedure under the Directive and State aid and merger control proceedings, it is clear that such decisions are subject to their own procedural rules.
72. Therefore, the Court of First Instance rightly considered that it could not recognise the appellant as having locus standi
in an action for annulment against the contested decision by applying, by way of analogy, the case-law concerning the admissibility of natural or legal persons in the context of disputes concerning State aid or merger control.
73. Moreover, it cannot be maintained that, by the contested decision, the Commission took a decision on the existence of State aid or that it ordered the Member State not to disburse such an aid consisting in an allocation of greenhouse gas emission allowances. Such a claim is impeded by the express proviso formulated by the Commission in that decision as to the possibility of subsequent assessment within the framework of Articles 87 EC and 88 EC.
74. Consequently, the Court of First Instance rightly found that the contested decision was not of direct concern to the appellant within the meaning of Article 230 EC, a finding which in itself justifies the dismissal of the appeal brought by the appellant, a legal person who was not the addressee of the contested decision.
75. In view of all the foregoing considerations, the appeal must be dismissed as being clearly unfounded.
Costs
76. Under Article 69(2) of the Rules of Procedure, which is applicable to the procedure on appeal pursuant to Article 118 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has applied for costs against the appellant, which has been unsuccessful, it must be ordered to pay the costs.
Operative part
On those grounds, the Court (Sixth Chamber) hereby orders:
1. The appeal is dismissed.
2. US Steel Košice s.r.o. shall pay the costs.