Case T‑849/16

PGNiG Supply & Trading GmbH

v

European Commission

(Action for annulment — Internal market in natural gas — Directive 2009/73/EC — Commission decision amending the conditions for exemption from the EU requirements of the rules governing operation of the OPAL pipeline in regard to third-party access and tariff regulation — Lack of direct concern — Inadmissibility)

Summary — Order of the General Court (First Chamber), 14 December 2017

Actions for annulment — Natural or legal persons — Meaning of regulatory act in Article 263, fourth paragraph, TFEU — Any act of general scope other than legislative acts — Commission decision amending the conditions for exemption from the EU requirements of the rules governing operation of a pipeline — Not included

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Possibility of being individually concerned by a general decision — Conditions — Commission decision amending the conditions for exemption from the EU requirements of the rules governing operation of a pipeline — Action of a company competing with the company to which the decision is addressed — Not individually concerned — Inadmissibility

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Whether directly concerned — Criteria — Commission decision amending the conditions for exemption from the EU requirements of the rules governing operation of a pipeline — Action of a company competing with the company to which the decision is addressed — Not directly concerned — Inadmissibility

The ‘direct concern’ condition requires that the contested measure must directly affect the legal situation of the individual and that it must leave no discretion to the addressees of the measure, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting solely from the contested rules without the application of other intermediate rules. The same applies where the possibility for addressees not to give effect to the EU measure is purely theoretical and their intention to act in conformity with it is not in doubt. As regards a Commission decision amending the conditions for exemption of the operating arrangements for a pipeline, in particular with regard to third-party access, following a proposal from the competent national authority under Article 36 of Directive 2009/73 concerning common rules for the internal market in natural gas, a company which is a competitor of the company to which that decision is addressed cannot be directly affected by that decision. Indeed, the condition relating to the absence of discretion left to the addressees is not fulfilled because the decision of the national authority implementing the Commission decision is not automatic, given the possibility both of the national authority and of the addressee of the decision of that authority to withdraw the proposed measure. (see paras 31-33)

Persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed by such a decision. Moreover, where the decision 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 be individually concerned by that measure inasmuch as they form part of a limited class of traders. As regards a Commission decision under Article 36 of Directive 2009/73 concerning common rules for the internal market in natural gas, which amends the conditions under which a pipeline operator must make gas available to third parties, even if, in a specific case, that amendment may have economic repercussions, inter alia further to an increase in the gas flows transported by that pipeline, on the activities of a third party active in the field of marketing and transport of natural gas, and accordingly reduce the competitiveness of the company at issue in relation to the undertakings connected to the operation of the pipeline, on the wholesale and retail gas markets in a Member State, that would necessarily affect all market participants active in that sector, and not solely that company. Moreover, the fact of belonging to the alleged closed circle of participants in the market in the trade and transport of gas in a Member State cannot distinguish that company individually in respect of the operating conditions of a pipeline transporting gas through that Member State towards another Member State. Consequently, it must be held that the applicant is not individually concerned by the contested decision. (see paras 37-39, 42, 44, 46)

In order to determine the scope of a measure, it is appropriate to consider whether the measure in question concerns specific subjects individually. In this regard, the EU Courts must not look merely at the official name of the measure but must first take account of its purpose and its content. Accordingly, a decision which is addressed to a Member State is regarded as being of general application if it applies to objectively determined situations and entails legal effects for categories of persons envisaged generally and in the abstract. As regards a Commission decision under Article 36 of Directive 2009/73 concerning common rules for the internal market in natural gas, which amends the conditions under which a pipeline operator must make gas available to third parties, that decision cannot be a measure of general application and, therefore, is not a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU. In fact, the decision concerns only a single individual and defined situation, namely the conditions under which a company operates part of the capacity of a pipeline. More specifically, the potential economic consequences which that decision may have for market participants in the gas transport and trade sector other than that company do not constitute legal effects for a category of persons envisaged generally and in the abstract. (see paras 49, 50, 53)