Case T-387/04

EnBW Energie Baden-Württemberg AG

v

Commission of the European Communities

‛Actions for annulment — Directive 2003/87/EC — Greenhouse gas emission allowance trading scheme — German national plan for the allocation of emission allowances — State aid — Interest in bringing proceedings — Inadmissibility’

Order of the Court of First Instance (Third Chamber), 30 April 2007 II-1201

Summary of the Order

An action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested measure. Such an interest presupposes that the annulment of the measure must of itself be capable of having legal consequences and that the action must be likely, if successful, to procure an advantage for the party who brought it. As regards a Commission decision concerning a national allocation plan for the allocation of greenhouse gas emission allowances (NAP), rejecting the NAP only to the extent that it provided for ex-post adjustments to the allocation of emission allowances, declaring them to be incompatible with the fifth and tenth criteria in Annex III to Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community, the existence of locus standi depends on the legal nature of the review procedure and the Commissions decision-making power under Article 9(3) of Directive 2003/87 and, in particular, on whether the contested decision contains an authorisation of the whole of the NAP. (see paras 96, 98)

A prior review carried out by the Commission under Article 9(3) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community, following notification by a Member State of a national allocation plan (NAP) for the allocation of greenhouse gas emission allowances, does not necessarily lead to an authorising decision, since the Commission may not intervene except in so far as it considers it necessary to raise objections to certain aspects of the NAP as notified and, if the Member State refuses to amend its NAP, to adopt a decision rejecting the plan. In addition, those objections and the rejection decision may occur during the three months following notification of the NAP. If that does not happen, the NAP as notified becomes definitive and enjoys a presumption of legality which permits the Member State to put it into effect during the allocation period concerned. Therefore, that particular review is based on a presumption that the State measure, which is subject only to a temporary prohibition on its being put into effect, is lawful. It follows that any decision of the Commission rejecting a NAP or certain aspects thereof, even where other aspects of the plan have been expressly accepted or where reasons for not raising objections to them are stated and where amendments to the NAP are subsequently accepted, cannot be regarded as an authorisation, in the sense of a measure giving rise to rights, because, of their nature, measures notified in this context do not require any such authorisation. (see para. 115)

The purpose of the review under Article 9(3) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community, apart from permitting the Commission to exercise a prior review, is to provide legal certainty for the Member States and to permit them to be sure, within a short time, how, during the allocation period in question, they may allocate emission allowances and manage the allowance trading scheme on the basis of their national allocation plan (NAP) for the allocation of greenhouse gas emission allowances. Having regard to the limited duration of the allocation periods, both the Commission and the Member States have a legitimate interest in resolving quickly any dispute concerning the contents of the NAP and in ensuring that, during the entire period of its validity, the NAP does not risk being contested by the Commission. In addition, implementation of the objectives of Directive 2003/87 in a cost-effective and economically efficient manner would be hindered by a prohibition on putting the NAPs into effect until the Commission had adopted a decision authorising them. (see paras 117, 118)

In the absence of a general power on the part of the Commission, to authorise, in the strict sense, a national allocation plan (NAP) for the allocation of greenhouse gas emission allowances which has been notified to it by a Member State, the absence of objections on the Commission's part on the expiry of the three-month time-limit referred to in the first sentence of Article 9(3) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community cannot raise any presumption or legal fiction that the NAP has been authorised. In that regard, the Commission enjoys only a limited power of review and rejection, restricted to the criteria set out in Annex III to Directive 2003/87 and the provisions of Article 10 thereof. Therefore, the only consequence of the expiry of the time-limit is that the NAP — which enjoys a presumption of legality in the absence of objections from the Commission — becomes definitive and may be put into effect by the Member State without the need for any general authorisation by the Commission. That assessment is reinforced by the fact that Article 9(3) of Directive 2003/87 does not lay down an express rule establishing a presumption or legal fiction. Moreover, a rule to that effect could undermine the Commissions power of review under Article 226 EC, which it must be able to exercise. (see paras 120-122)

Only the enacting terms of a decision are capable of producing legal effects and, consequently, of adversely affecting a persons legal interests, regardless of the grounds on which the decision is based. By contrast, the assessments made in the recitals in the preamble to a decision are not in themselves capable of forming the subject of an application for annulment and can be subject to review by the Community judicature only to the extent that, as grounds for an act adversely affecting a persons interests, they constitute the essential basis for the enacting terms of that act, or if — at very least — those recitals could change the substance of what was provided for in the enacting terms of the act in question. The enacting terms of an act are inextricably linked to the statement of reasons for them in the recitals, so that, if that act has to be interpreted, account must be taken of the reasons which led to its adoption. Consequently, in the absence of a legally binding position in regard to a rule, adopted in the enacting terms of a Commission decision concerning a national allocation plan (NAP) for the allocation of greenhouse gas emission allowances, under Article 9(3) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community, the reasons stated in that decision concerning that rule and its compatibility or otherwise with the rules on State aid are not subject to review by the Community judicature in the context of an action under Article 230 EC for the annulment of that decision and cannot form the basis for locus standi on the part of an economic operator. (see paras 127, 130)

The obligation on a Member State under Article 88(3) EC to notify the Commission of any plan to grant State aid is distinct in law and, in principle, independent of the obligation under Article 9(3) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community to notify a national allocation plan (NAP) for the allocation of greenhouse gas emission allowances. A decision based solely on Article 9(3) of Directive 2003/87 and not on Article 87 EC or Article 88 EC permits the Commission to carry out only a prima facie assessment, from the point of view of the rules on State aid, of the State aid-related aspects of the NAP concerned, which does not prevent the adoption of a formal decision under the third sentence of Article 88(3) EC. (see para. 133)

Neither Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community, adopted solely on the basis of Article 175 EC and not Article 89 EC, nor measures — not legally binding — adopted in that context, can legitimately restrict the scope and useful effect of the rules concerning review of State aid. Subject to the obligation on the Commission to take account, in the review procedure under Article 9(3) of Directive 2003/87, of the possibility of conflicts between, on the one hand, the provisions of a national allocation plan (NAP) for the allocation of greenhouse gas emission allowances and, on the other, the rules on State aid, as well as of the possibility that the notification of a NAP may also constitute notification for the purposes of Article 88(3) EC, Directive 2003/87 cannot — in the absence of a relevant legal basis — constitute a lex specialis permitting the review of State aid in the course of the review procedure laid down in Article 9(3) of that directive. (see paras 132, 134)