Appeal brought on 3 February 2022 by Grupa Azoty S.A., Azomureș SA, Lipasmata Kavalas LTD Ypokatastima Allodapis against the order of the General Court (Fifth Chamber) delivered on 29 November 2021 in Case T-726/20, Grupa Azoty and Others v Commission

(Case C-73/22 P)

(2022/C 165/39)

Language of the case: English

Parties

Appellants: Grupa Azoty S.A., Azomureș SA, Lipasmata Kavalas LTD Ypokatastima Allodapis (represented by: D. Haverbeke, L. Ruessmann and P. Sellar, avocats)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

— set aside the order under appeal; and

— declare the appellants' application under Article 263 TFEU for partial annulment of the Communication from the Commission of 25 September 2020 entitled ‘Guidelines on certain State aid measures in the context of the system for greenhouse gas emission allowance trading post-2021’ (1) admissible; or

— in the alternative, set aside the order under appeal on the ground that the General Court should have reserved the decision on admissibility until consideration of the merits of the substance of the application; and

— refer the case back to the General Court for consideration on the merits; and

— award the costs of these proceedings to the appellants; and

— reserve the question of the costs of the proceedings before the General Court once it has completed its full consideration of the application.

Pleas in law and main arguments

In support of the appeal, the appellants rely on two pleas in law.

First plea in law: inadequate statement of reasons.

— The General Court did not discharge its duty to provide an adequate statement of reasons. First, in paragraphs 34 to 48 and 49 to 51 of the order under appeal, the General Court failed to address the arguments put to it by the appellants and to establish the facts of the case before it. Second, it failed to explain why it is that only Commission decisions adopted under a specific piece of secondary legislation can be of direct concern to the appellants. That affects paragraph 38 of the order under appeal.

Second plea in law: General Court erred in law by stating that the appellants were not directly concerned.

— The General Court refers to settled case law to recite the test for direct concern in paragraphs 26 to 30 of the order under appeal. As part of that test of direct concern, the General Court must assess the content, nature, purpose and substance of the act that is being challenged, as well as the factual and legal context of which it forms part. The General Court erred in law in its assessment of the Article 263 TFEU requirement of ‘direct concern’ by failing to do that. That affects paragraphs 34 to 48 of the order under appeal. The General Court has created a scenario in which the appellants are left with no legal remedy. By failing to follow and properly apply the test for assessing direct concern, the General Court erred in law.

In the alternative, the General Court should have reserved judgment on the admissibility until after consideration of the application on the merits.

— Paragraphs 7 and 8 of Article 130(3) of the General Court's Rules of Procedure require the General Court to reserve its decision on a plea of inadmissibility until it rules on the substance of the case where special circumstances so justify, and to subsequently prescribe new time limits for further steps in the procedure. Per settled case law, those special circumstances exist where a reservation is needed for the proper administration of justice.

— The General Court was required to assess the nature, content and context of the contested act to determine if it was of direct concern to the appellants. For that, it is necessary to look at the act's substance and whether it imposes independent legal obligations on Member States. There is overlap between that assessment and the first plea in law on the merits regarding the Commission's lack of competence to adopt Annex I of the contested act. By not reserving its decision on the Commission's plea on inadmissibility until it had heard the arguments on the merits, the General Court infringed the provisions of paragraph 7 and 8 of Article 130 of its Rules of Procedure.

(1) OJ 2020 C 317, p. 5