CELEX: 62014TO0670
Language: en
Date: 2015-11-23 00:00:00
Title: Order of the General Court (First Chamber) of 23 November 2015. # Milchindustrie-Verband eV and Deutscher Raiffeisenverband eV v European Commission. # Case T-670/14.

Parties
               Grounds
               Operative part
               
            
            Parties
            In Case T‑670/14,
            Milchindustrie-Verband eV,  established in Berlin (Germany), 
            Deutscher Raiffeisenverband eV, established in Berlin,
            represented by I. Zenke and T. Heymann, lawyers,
            applicants,
            v
            European Commission,  represented by K. Herrmann, T. Maxian Rusche and R. Sauer, acting as Agents,
            defendant,
            APPLICATION for annulment of the Communication from the Commission of 28 June 2014 entitled ‘Guidelines on State aid for environmental protection and energy 2014-2020’ (OJ 2014 C 200, p. 1), in so far as the sectors of operation of dairies and cheese making (NACE 10.51) are not referred to in Annex 3 to that communication,
            THE GENERAL COURT (First Chamber),
            composed of H. Kanninen, President (Rapporteur), I. Pelikánová and E. Buttigieg, Judges, 
            Registrar: E. Coulon,
            makes the following
            Order 
            
            Grounds
            Background to the dispute 
            The contested guidelines 
            1. On 28 June 2014, the European Commission adopted a Communication entitled ‘Guidelines on State aid for environmental protection and energy 2014-2020’ (OJ 2014 C 200, p. 1, Annex A1 — ‘the contested guidelines’).
            2. Paragraph 3.7.2 of the contested guidelines lays down the conditions to be applied to aid granted by Member States in the form of reductions in the funding of support for energy from renewable sources (‘the reductions’) in order to be regarded as compatible with the internal market within the meaning of Article 107(3)(c) TFEU. Paragraph 185 of the contested guidelines provides as follows:
            ‘The aid should be limited to sectors that are exposed to a risk to their competitive position due to the costs resulting from the funding of support to energy from renewable sources as a function of their electro-intensity and their exposure to international trade. Accordingly, the aid can only be granted if the undertaking belongs to the sectors listed in Annex 3 [to the contested guidelines]. This list is intended to be used only for eligibility for this particular form of compensation.’
            3. Footnote 84 to the contested guidelines, which appears at the end of the penultimate sentence of paragraph 195 thereof, is worded as follows: 
            ‘The Commission considers that such risks exist for sectors that are facing a trade intensity of 10% at EU level when the sector electro-intensity reaches 10% at EU level. In addition, a similar risk exists in sectors that face a lower trade exposure but at least 4% and have a much higher electro-intensity of at least 20% or that are economically similar (e.g. on account of substitutability). Equally, sectors having a slightly lower electro-intensity but at least 7% and facing very high trade exposure of at least 80% would face the same risk. The list of eligible sectors was drafted on that basis. Finally, the following sectors have been included because they are economically similar to listed sectors and produce substitutable products (casting of steel, light metals and non-ferrous metals … recovery of sorted materials …’
            4. Paragraph 186 of the contested guidelines states as follows:
            ‘In addition, to account for the fact that certain sectors might be heterogeneous in terms of electro-intensity, a Member State can include an undertaking in its national scheme granting reductions from costs resulting from renewable support if the undertaking has an electro-intensity of at least 20% (86) and belongs to a sector with a trade intensity of at least 4% at Union level, even if it does not belong to a sector listed in Annex 3 [to the contested guidelines] …’
            5. Annex 3 to the contested guidelines (‘Annex 3’), entitled ‘List of eligible sectors under Section 3.7.2’ [of the contested guidelines], lists the economic sectors for which undertakings may be granted a reduction considered by the Commission to be compatible with the internal market without having to achieve individually a particular electro-intensity. 
            6. Annex 5 to the contested guidelines (‘Annex 5’), entitled ‘Mining and manufacturing sectors not included on the list of Annex 3 having an extra-EU trade intensity of at least 4%’, lists certain economic sectors not appearing in Annex 3, in which undertakings could benefit from a reduction considered by the Commission to be compatible with the internal market, provided that they individually attain an electro-intensity of 20%. Those sectors include the sector of operation of dairies and cheese making (Nace 10.51) (‘the dairy sector’). 
            The applicants 
            7. The applicants, Milchindustrie-Verband eV and Deutscher Raiffeisenverband eV, are two groups whose object is to represent and defend the interests of the German dairy industry and undertakings in the German agri-foodstuffs sector. The members of Milchindustrie-verband are undertakings and cooperatives which in Germany account for around 95% supplies of milk and 100% of the export volume. As regards Deutscher Raiffeisenverband, its members include undertakings active in agricultural trade and in the processing and marketing of animal and vegetable products, including milk. 
            Procedure and forms of order sought 
            8. By application lodged at the Registry of the General Court on 19 September 2014, the applicants brought the present action, in which they claim that the Court should:
            – annul the contested guidelines in so far as the dairy sector is not mentioned in Annex 3; 
            – order the Commission to pay the costs.
            9. By a separate document lodged at the Registry of General Court under Article 114 of the Rules of Procedure of the General Court of 2 May 1991, it contends that the Court should: 
            – dismiss the action as inadmissible; 
            – order the applicants to pay the costs.
            10. The applicants lodged their observations on the objection of inadmissibility on 19 January 2015. They contend that the General Court should reject the objection of inadmissibility pursuant to the first subparagraph of Article 114(4) of the Rules of Procedure of 2 May 1991 and continue the proceedings. 
            Law 
            11. Pursuant to Article 130(1) of the Rules of Procedure of the General Court, the general Court may, if the defendant so requests, give a decision on inadmissibility or lack of jurisdiction without discussing the substance.
            12. In the present case, the Court considers that it has sufficient information from the documents in the file and has decided to give a decision without taking further steps in the proceedings. 
            Preliminary observations on the subject matter of the proceedings 
            13. The applicants seek annulment of the contested guidelines in so far as the dairy sector is not mentioned in Annex 3; it records an intensity of trade and electro-intensity of more than 10%. The applicants observe that Annex 3 is exhaustive and that its content must be faithfully transposed by German legislation. Thus, the sectors listed in Annex 3 appear in list 1 of Annex 4 to the Erneuerbare-Energien-Gesetz (German law on renewable energy) of 21 July 2014 (BGBl. 2014 I, p. 1066, ‘the EEG 2014’) relating to the sectors which may benefit from a reduction. The sectors listed in Annex 5, including the dairy sector, appear in list 2 of Annex 4 to the EEG 2014; Article 64 of that law lays down for undertakings belonging to those sectors more severe requirements for the grant of reductions. Consequently, only the very few dairies which fulfil those severe conditions could benefit from a reduction, so that the international competitiveness and the existence of about 80% of German dairies are seriously threatened. 
            Admissibility 
            14. In the first place, it must be borne in mind that actions brought by associations or groups are, according to the case-law, admissible in three situations, namely where they represent the interests of persons who, for their part, would have standing to take action, or where they are individually identified by reason of the impact on their interests as an association or as a group, particularly because their position of negotiator has been affected by the act whose annulment is sought, or again where a legal provision expressly grants them a number of powers of a procedural nature (see, to that effect, the judgment of 18 March 2010 in Forum 187 v Commission , T‑189/08, ECR, EU:T:2010:99, paragraph 58 and the case-law cited).
            15. In the present case, the applicants, first, do not cite any provision granting them procedural rights so far as the contested guidelines are concerned and, second, they do not claim to have played any particular negotiating role in the procedure for the adoption of those guidelines. Accordingly, as the Commission rightly contends and as the applicants accept, the admissibility of the application depends only on the question whether the application for annulment of the contested guidelines from undertakings active in the dairy sector represented by the applicants (‘the represented undertakings’) would be admissible on account of the fact that the dairy sector is not mentioned in Annex 3.
            16. Next, it must be borne in mind that, under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act which is not addressed to that person in two alternative cases, namely, first, if the act in question is of direct and individual concern to that person and, second, if it is a regulatory act which is of direct concern to that person and does not entail implementing measures.
            17. It is therefore necessary to consider whether the represented undertakings fall, under the contested guidelines, within either of the two cases mentioned in the foregoing paragraph, something which the Commission denies. Since each of the cases presupposes that the contested measure has a direct impact on the applicant, it is necessary to examine that criterion first.
            18. It should be observed in that regard that the expression ‘of direct … concern’ is used in exactly the same way in both the cases envisaged in the fourth paragraph of Article 263 TFEU and was repeated in the same terms in the fourth paragraph of Article 230 EC, even though the latter provision deals with only the first of those cases. It has already been held that the concept of direct effect within the meaning of the second of those cases cannot be more restrictively interpreted than in the first case (see, to that effect, the judgment of 25 October 2011 in Microban International and Microban (Europe ) v Commission , T‑262/10, ECR, EU:C:2011:623, paragraph 32). There is nothing to support the view that, in this case, the condition of direct effect should be interpreted less restrictively in a case where the contested guidelines constitute a regulatory measure that does not involve implementing measures.
            19. The Commission contends that the contested guidelines do not directly affect the represented undertakings; the applicants contest that view.
            20. It must be observed that, in accordance with settled case-law, the condition that the contested decision must be of direct concern to a natural or legal person, as laid down in the fourth paragraph of Article 263 TFEU, requires that the contested measure should directly affect 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 EU rules without the application of other intermediate rules (see the judgment of 13 March 2008 in Commission v Infront WM , C‑125/06 P, ECR, EU:C:2008:159, paragraph 47 and the case-law cited).
            21. The same applies where the opportunity 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 (judgments of 5 May 1998 in Dreyfus v Commission , C‑386/96 P, ECR, EU:C:1998:193, paragraph 44, and Glencore Grain v Commission , C‑404/96 P, ECR, EU:C:1998:196, paragraph 42; see also, to that effect, the judgments of 23 November 1971 in Bock v Commission , 62/70, ECR, EU:C:1971:108, paragraphs 6 to 8, and of 17 January 1985 in Piraiki-Patraiki and Others v Commission , 11/82, ECR, EU:C:1985:18, paragraphs 8 to 10).
            22. It is therefore necessary to consider whether the contested guidelines directly affect in that way the legal situation of the represented undertakings; the Commission contests that view.
            23. In that respect, it should be borne in mind that the Commission may adopt guidelines for the exercise of its powers of assessment, particularly in State aid matters. Provided that they do not depart from the Treaty rules, the indicative rules they contain are binding on the institution (see, to that effect, the judgments of 24 February 1987 in Deufil v Commission , 310/85, ECR, EU:C:1987:96, paragraph 22; of 24 March 1993 in CIRFS and Others v Commission , C‑313/90, ECR, EU:C:1993:111, paragraphs 34 and 36, and of 15 October 1996 in IJssel-Vliet , C‑311/94, ECR, EU:C:1996:383, paragraph 42).
            24. Therefore, by adopting the contested guidelines, the Commission entered into a commitment, which was in principle binding, to exercise in the manner set out in the guidelines the discretion available to it to assess the compatibility with the internal market of the aid covered by them. In particular, it gave a commitment not to consider to be compatible with the internal market any reduction granted by a Member State in favour of a sector not listed in Annex 3 and to consider to be compatible with the internal market any reduction granted to an undertaking operating in a sector listed in Annex 5 only where that undertaking achieves an electro-intensity of 20%.
            25. However, the foregoing does not mean that the represented undertakings are directly concerned by the contested guidelines.
            26. First, as regards the represented undertakings enjoying a reduction notified by the Federal Republic of Germany to the Commission and for which the Commission has not yet adopted a decision as to its compatibility with the internal market before the date of first application of the contested guidelines, it is true that, as the applicants assert, in accordance with paragraphs 246 and 247 of the guidelines, the latter apply from 1 July 2014 to 31 December 2022 to all aid measures on which the Commission is called to rule, even those notified before the first of those dates. However, the Commission cannot ap ply the contested guidelines with regard to a reduction of that kind otherwise than by means of a decision under Article 4(2) and (3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), that is to say a decision opening the formal investigation procedure provided for in Article 108(2) TFEU or, finally, a decision to close that procedure under Article 7 of Regulation No 659/1999. It is those decisions, and not Annex 3, which could have a direct effect on the represented undertakings by finding that the reduction granted to them is not compatible with the internal market on the ground that the dairy sector is not listed in Annex 3. The represented undertakings could contest the legality of those decisions before the General Court and in particular claim that the dairy sector should have been listed in Annex 3.
            27. Second, as regards the represented undertakings that receive a reduction notified by the Federal Republic of Germany to the Commission and regarded by the Commission as an aid compatible with the internal market before the date of first application of the contested guidelines, it must be observed that, under paragraph 250 thereof, the Commission proposes the changes necessary to existing aid in order to bring it into conformity with those guidelines by 1 January 2016 at the latest. As the Commission rightly submits, in so far as they are not bound by the contested guidelines, the Member States may follow or reject those proposals. In the event that the Commission proposals were followed, all legal effects regarding the represented undertakings would derive from the action of the Member State concerned, which could, if need be, be contested before the competent national courts. In the event that the Commission’s proposal were rejected by the Member State concerned, all legal effects vis-à-vis the represented undertakings would derive only from the obligation to declare suspension following any decision by the Commission to open, under Article 19(2) of Regulation No 659/1999, the formal investigation procedure provided for by Article 108(2) TFEU. Once again, the represented undertakings could contest the legality of such a decision before the General Court and in particular claim that the dairy sector should have been listed in Annex 3.
            28. Third, in the case of the represented undertakings enjoying a reduction which might be regarded by the Commission as illegal aid, in so far as it was granted before being notified, and be examined by the Commission after the date of first application of the contested guidelines, it must be observed that the Commission can apply those guidelines regarding such a reduction only by means of one of the decisions mentioned in paragraph 26 above, the represented undertakings not being susceptible to being directly affected otherwise than by such a decision, which they could, if need be, contest before the General Court.
            29. Fourth, and finally, any decision by a Member State not to grant new reductions in favour of sectors not listed in Annex 3 is, as the Commission rightly submits, a matter falling within the sovereignty of the Member State concerned.
            30. The existence of the contested guidelines does not prevent a Member State from notifying to the Commission another reduction in favour of a sector not listed in Annex 3, either on the ground that it considers, possibly following explanations given by the undertakings concerned, that that sector meets the conditions for inclusion on the list in that annex, or on the ground that it considers that those conditions cannot be validly adopted by the Commission. It may indeed be very probable that, under the contested guidelines, the Commission might feel it appropriate to adopt a decision under Article 7(5) of Regulation No 659/1999, to the effect that the envisaged reduction constitutes aid incompatible with the internal market. However, only that decision would be liable to give rise to direct legal effects for the undertakings which should have benefited from the reduction. Those undertakings could, in the same way as the Member State concerned, contest before the General Court the merits of the decision adopted by the Commission and, in particular, contend that the dairy sector should have been included in Annex 3. 
            31. That conclusion cannot be undermined by the argument put forward by the applicants in their observations on the objection of inadmissibility to the effect that it was already clear, when the contested guidelines were adopted, that the Federal Republic of Germany would incorporate Annex 3 ‘word for word’ in its legislation on reductions, so that the case-law mentioned in paragraph 21 above is applicable to this case. 
            32. On this point, the applicants submit that the Commission had, in December 2013, opened a formal investigation procedure concerning the German legislation on reductions and had expressed doubts as to the legality of the reductions provided for outside the steel and aluminium sectors. The drawing up of the contested guidelines was therefore accompanied by intensive negotiations between the Commission and the German authorities regarding the list of sectors which might be included in Annex 3. Despite an action for annulment brought on 28 February 2014 against the decision to open the formal procedure, the German authorities had indicated, first, that they wished to arrive at a compromise and, second, that the new German legislation on reductions should be closely coordinated with the guidelines in preparation, or indeed comply with the requirements thereof. 
            33. However, that does not mean that the case-law mentioned in paragraph 21 above is applicable to this case, contrary to the applicants’ contention. 
            34. Since, as indicated in paragraph 30 above, the Member States are neither bound by the contested guidelines nor required not to notify to the Commission reductions not in conformity with the conditions laid down by the guidelines, the possibility that the Member States might maintain or adopt national legislation incompatible with the guidelines cannot be regarded as being purely theoretical. In any event, the applicants do not in any way explain why the Member States, and in particular, the Federal Republic of Germany, were required, in law or in fact, to accept the indicative rules that the Commission had imposed on itself in the exercise of its powers of assessment by adopting the contested guidelines. 
            35. The foregoing is confirmed by the fact that, as the applicants themselves observe, the Federal Republic of Germany had brought an action for annulment before the General Court against the decision opening the formal investigation procedure adopted by the Commission regarding the German legislation on reductions prior to EEG 2014. In the context of those proceedings, from which it then decided to withdraw (order of 8 June 2015 in Germany v Commission , T‑134/14, EU:T:2015:392), the Federal Republic of Germany contested a preliminary assessment made by the Commission regarding the reductions which it was planning to grant, that assessment being, according to the applicants themselves, identical to the one deriving from the contested guidelines. 
            36. In those circumstances, the fact that the German authorities announced that they would adapt their legislation on reductions in order to render it compatible with the contested guidelines, before their adoption, does not mean, even if accepted, that those guidelines had a direct effect on the represented undertakings. 
            37. In any event, the present situation differs greatly from the circumstances giving rise to the case-law mentioned in paragraph 21 above. 
            38. Thus, the judgments in Bock v Commission , cited in paragraph 21 above (EU:C:1971:108), and Piraiki-Patraiki and Others v Commission , cited in paragraph 21 above (EU:C:1985:18), concerned applications for the annulment of two decisions by which the Commission had authorised certain Member States, at their request, to apply safeguarding measures for products originating in certain countries. The Court took the view that, since the authorities of the Member States in question had indicated that they would apply the safeguarding measures requested, the undertakings obliged to endure them were directly concerned by the Commission’s authorisation. 
            39. In the present case, the Federal Republic of Germany needs no authorisation from the Commission to adapt its legislation concerning reductions with a view to rendering it compatible with the contested guidelines or to notify the Commission of the reductions incompatible with them, in contrast to the Member States concerned by the safeguarding measures mentioned in paragraph 38 above, which needed authorisation from the Commission in order to impose such measures. The potential beneficiaries of reductions not granted by the Federal Republic of Germany are not therefore concerned by the contested guidelines in a manner similar to the way in which the undertakings obliged to endure the safeguarding measures question were concerned. 
            40. As regards the judgments in Dreyfus v Commission , cited in paragraph 21 above (EU:C:1998:193), and Glencore Grain v Commission , cited in paragraph 21 above (EU:C:1998:196), they were concerned with applications for the annulment of decisions addressed to the Russian and Ukrainian authorities respectively, by which the Commission refused financing for the supply of certain agricultural products under special price conditions. It was in the light of the critical economic and financial situation confronting the Russian Federation and Ukraine and the aggravation of their food and medical situation, in so far as payments for supplies could be made up only by means of Union financing, that the Court considered to be purely theoretical the power of the authorities concerned to perform the supply contract in accordance with the price conditions contested by the Commission and thus relinquish such financing.
            41. In the present case, there is no reason to consider that the Federal Republic of Germany is in a situation, as regards the facts, that is critical and analogous to that of the States mentioned in paragraph 40 above by virtue of which it had only purely theoretical authority not to follow the contested guidelines, for example by notifying the Commission of the reductions that were incompatible with them. 
            42. It follows from all the foregoing considerations, first, that, contrary to the applicants’ contention, the Federal Republic of Germany was not obliged, either in law or in fact, to adapt its legislation on reductions in order to render it compatible with the contested guidelines and, second, that the legal situation of the represented undertakings is not directly affected by the failure to include the dairy sector in Annex 3. 
            43. In so far as the represented undertakings are not directly affected by the contested guidelines, it is unnecessary to consider whether they are individually concerned, or whether those guidelines are a regulatory measure that does not necessitate implementing measures, in holding that an application from them for the annulment thereof would not be admissible. 
            44. It follows that the circumstances of the applicants are not such as to justify a declaration, in accordance with the case-law mentioned in paragraph 14 above, that the application by the associations or groups concerned is admissible.
            45. Consequently, the application must be dismissed as inadmissible.
            Costs 
            46. Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission. 
            
            Operative part
            On those grounds,
            THE GENERAL COURT (First Chamber)
            hereby:
            1. Dismisses the application as inadmissible; 
            2. Orders Milchindustrie-Verband eV and Deutscher Raiffeisenverband eV to bear their own costs and to pay those of the European Commission. 
            Luxembourg, 23 November 2015.