1 By their appeal, Aquind Ltd, Aquind Energy Sàrl and Aquind SAS (together ‘Aquind and others’) ask the Court of Justice to set aside the order of the General Court of the European Union of 5 March 2021, Aquind and Others v Commission (T‑885/19, EU:T:2021:118; ‘the order under appeal’), by which the General Court dismissed as manifestly inadmissible their action seeking partial annulment of the act adopted by the European Commission on 31 October 2019, now Commission Delegated Regulation (EU) 2020/389 of 31 October 2019 amending Regulation (EU) No 347/2013 of the European Parliament and of the Council as regards the Union list of projects of common interest (OJ 2020 L 74, p. 1; ‘the act at issue’). Legal context European Union law Regulation (EU) No 347/2013
2 Recital 24 of Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009 (OJ 2013 L 115, p. 39) states: ‘A new [European] Union list should be established every two years. Projects of common interest that are completed or that no longer fulfil the relevant criteria and requirements as set out in this Regulation should not appear on the next Union list. For that reason, existing projects of common interest that are to be included in the next Union list should be subject to the same selection process for the establishment of regional lists and for the establishment of the Union list as proposed projects; however, care should be taken to minimise the resulting administrative burden as much as possible, for example by using to the extent possible information submitted previously, and by taking account of the annual reports of the project promoters.’
3 Article 3 of Regulation No 347/2013, entitled ‘Union list of projects of common interest’, provides in paragraphs 3 and 4: ‘3. The decision-making body of each Group shall adopt a regional list of proposed projects of common interest drawn up according to the process set out in Annex III.2, according to the contribution of each project to implementing the energy infrastructure priority corridors and areas and according to their fulfilment of the criteria set out in Article 4. When a Group draws up its regional list: (a) each individual proposal for a project of common interest shall require the approval of the Member States, to whose territory the project relates; if a Member State decides not to give its approval, it shall present its substantiated reasons for doing so to the Group concerned; (b) it shall take into account advice from the Commission that is aimed at having a manageable total number of projects of common interest. 4. The Commission shall be empowered to adopt delegated acts in accordance with Article 16 that establish the Union list of projects of common interest (“Union list”), subject to the second paragraph of Article 172 [TFEU]. The Union list shall take the form of an annex to this Regulation. In exercising its power, the Commission shall ensure that the Union list is established every two years, on the basis of the regional lists adopted by the decision-making bodies of the Groups as established in Annex III.1(2), following the procedure set out in paragraph 3 of this Article. The first Union list shall be adopted by 30 September 2013.’
4 Article 16 of Regulation No 347/2013, entitled ‘Exercise of the delegation’, is worded as follows: ‘1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 2. The power to adopt delegated acts referred to in Article 3 shall be conferred on the Commission for a period of four years from 15 May 2013. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of this period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council [of the European Union] opposes such extension not later than three months before the end of each period. 3. The delegation of power referred to in Article 3 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. 4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. 5. A delegated act adopted pursuant to Article 3 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.’ Delegated Regulation 2020/389
5 Article 1 of Delegated Regulation 2020/389 provides: ‘Annex VII to Regulation [No 347/2013] is amended in accordance with the Annex to this Regulation.’
6 Article 2 of that delegated regulation states: ‘This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .’
7 Part C of Annex VII to Regulation No 347/2013, as inserted into that regulation by Delegated Regulation 2020/389, is entitled ‘Lists of the “projects no longer considered [projects of common interest]” and of the “projects that became integral parts of other [projects of common interest] in the second and/or third list of [projects of common interest]”’. It contains a point 1, entitled ‘Priority Corridor Northern Seas Offshore Grid (“NSOG”)’, under which the PCI number of projects which are no longer considered to be projects of common interest is listed. Those numbers include No 1.7.4 which, in Commission Delegated Regulation (EU) 2018/540 of 23 November 2017 amending Regulation No 347/2013 as regards the Union list of projects of common interest (OJ 2018 L 90, p. 38), corresponded to the ‘Interconnection between Le Havre [France] and Lovedean [United Kingdom] (currently known as “AQUIND”)’.
8 The act at issue, adopted by the Commission on 31 October 2019, was put online on that institution’s website under reference C(2019) 7772, in the section entitled ‘Register of Commission Documents’ and included in the Interinstitutional Register of Delegated Acts. It was published in the Official Journal of the European Union of 11 March 2020. Background to the dispute
9 The background to the dispute was set out by the General Court in paragraphs 1 to 3 of the order under appeal and may, for the purposes of the present proceedings, be summarised as follows.
10 Aquind and others are the promoters of a proposed electrical interconnector linking the electricity transmission systems of the United Kingdom and France (‘the proposed Aquind Interconnector’).
11 That project was included in the list of projects of common interest of the European Union by Delegated Regulation 2018/540.
12 Since that list of projects of common interest of the European Union must be reviewed every two years, the list established by Delegated Regulation 2018/540 was replaced by that established by Delegated Regulation 2020/389, on which the proposed Aquind Interconnector is included as one of the projects which are no longer considered to be projects of common interest of the European Union. Procedure before the General Court and the order under appeal
13 By application lodged at the Registry of the General Court on 25 December 2019, Aquind and others brought an action seeking, principally, annulment of the act at issue in so far as it removes the proposed Aquind Interconnector from the list of projects of common interest of the European Union and, in the alternative, annulment of that act in its entirety.
14 By separate document lodged at the Court Registry on 10 January 2020, Aquind and others made an application for interim measures seeking suspension of the operation of the act at issue in so far as it removes the proposed Aquind Interconnector from the list of projects of common interest of the European Union.
15 By order of 22 April 2020, Aquind and Others v Commission (T‑885/19 R, not published, EU:T:2020:155), the President of the General Court dismissed that application for interim measures on the ground that the condition relating to urgency was not satisfied.
16 By orders of 3 August 2020, the President of the Second Chamber of the General Court granted, respectively, the Federal Republic of Germany, the Kingdom of Spain and the French Republic leave to intervene in support of the form of order sought by the Commission.
17 In its defence, the Commission, supported in that regard by the French Republic, expressed reservations as to the admissibility of that action, without formally raising a plea of inadmissibility, arguing that, on the date on which the application was lodged, the act at issue had not yet entered into force, that it was subject to the objection procedure provided for by Regulation No 347/2013 and that, therefore, it was not a definitive act against which an action may be brought.
18 By application lodged at the Court Registry on 21 May 2020, Aquind and others brought a new action before the General Court, seeking partial annulment of Delegated Regulation 2020/389, registered as Case T‑295/20. By order of 19 January 2021, the General Court decided to reserve its decision on the plea of inadmissibility raised by the Commission for the final judgment.
19 By the order under appeal, the General Court dismissed the action as being manifestly inadmissible.
20 In that regard, it noted, inter alia, in paragraphs 23 to 26 of the order under appeal, that the act at issue had been adopted by the Commission pursuant to a delegation of power granted to it by the legislature, in accordance with Article 290 TFEU, by means of Article 3(4) of Regulation No 347/2013, and which the Commission had exercised under the conditions set out in Article 16(4) and (5) of that regulation, the latter paragraph stating that a delegated act adopted is to enter into force only if no objection has been expressed either by the Parliament or the Council within the specified period.
21 The General Court having noted, in paragraphs 27 and 28 of the order under appeal, that, in the present case, the stage during which the Parliament and the Council could raise any objections to the act at issue had not ended by the date on which the action for annulment was brought, namely 25 December 2019, it inferred from that, in paragraph 32 of that order, that, on that date, the act at issue, adopted by the Commission on 31 October 2019, could not be regarded as definitive, nor as an act producing binding legal effects capable of affecting the interests of Aquind and others. The General Court stated, in particular, in paragraph 31 of that order, that the Commission’s power to adopt, pursuant to Regulation No 347/2013, a delegated act producing binding legal effects required the completion of an objections stage provided for in that regulation. Accordingly, in paragraph 33 of the order under appeal, the General Court concluded that, on that date, the act at issue was not an act open to challenge. Procedure before the Court of Justice and forms of order sought by the parties to the appeal
22 By their appeal, Aquind and others claim that the Court should: - set aside the order under appeal; - declare the application at first instance to be well founded and annul the act at issue, in so far as it concerns Aquind and others; and - order the Commission to pay the costs of both the appeal proceedings and the proceedings before the General Court.
23 The Commission contends that the Court should: - dismiss the appeal and - order Aquind and others to pay the costs.
24 The Kingdom of Spain claims that, in that event that Court sets aside the order under appeal and decides to rule on the dispute, the Court should: - dismiss the appeal as unfounded and - order Aquind and others to pay the costs. The appeal
25 In support of their appeal, Aquind and others raise a single ground of appeal, by which they submit, in essence, that the General Court erred in law in holding that an action for annulment based on the fourth paragraph of Article 263 TFEU can be brought against an act only if that act produces binding legal effects on the date on which that action is brought and in holding that that is the case only when that act has entered into force. Arguments of the parties
26 Aquind and others submit, in the first place, that the General Court’s position that an action for annulment can be brought only against an act which has already entered into force on the date on which that action is brought, on the ground that it is only after that entry into force that the act produces binding legal effects, has no basis in Article 263 TFEU or in the case-law, which does not refer to the fact that the act in question produces binding legal effects immediately or at a later date, but to the fact that it is the definitive expression of the position of the institution concerned, as opposed to a preparatory act.
27 In that regard, they submit that, under Article 297(1) TFEU, a legal act may enter into force on a date that is significantly later than its publication in the Official Journal of the European Union , such that the General Court’s position precludes any possibility of bringing such an action where the date of entry into force of the contested act occurs after a period which exceeds the period for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU. A legal act exists as soon as it is adopted by the institution concerned, even if it enters into force at a later date and if, as in the case of the act at issue, it is subject to certain conditions.
28 In the second place, the General Court was wrong, in paragraphs 31 and 32 of the order under appeal, to substantiate its position by stating that the Commission did not have the power to adopt Delegated Regulation 2020/389 before the expiry of the period available to the Parliament and the Council for them to raise objections and, in paragraph 35 of that order, to classify the act at issue as an ‘initial measure’, thus suggesting the adoption of a subsequent act, while asserting that the absence of any amendment of that act did not alter its nature. If that were correct, and since no Commission act was adopted at the end of that period, the General Court should have held that the proposed Aquind Interconnector was never removed from the list of projects of common interest of the European Union in Regulation No 347/2013 and, consequently, it should have dismissed the action brought before it as being devoid of purpose.
29 The order under appeal is thus vitiated by inconsistent reasoning, in that the General Court held that the act at issue was validly adopted, while ruling that the Commission did not have the power to adopt such an act before the end of the objections stage.
30 According to Aquind and others, the act at issue was a definitive legal act from the date of its adoption. It is true it could have been repealed and replaced, but it was not a draft measure subject to amendment, since the Parliament and the Council had the power not to amend it, but merely to oppose its entry into force.
31 Consequently, Aquind and others dispute the General Court’s assessment, in paragraph 36 of the order under appeal, that the Commission adopted a conditional act the existence of which depended on whether or not a future event occurred. It is not the existence of the act that can be made subject to conditions, but its entry into force. Moreover, it is apparent from the second and fourth paragraphs of Article 288 TFEU that the Commission may not adopt non-binding regulations or decisions.
32 The Commission submits that the appeal is unfounded, since the General Court was fully entitled to conclude that the act at issue was not a definitive act producing binding legal effects capable of affecting the interests of Aquind and others.
33 In that regard, the Commission submits, in essence, that the General Court was fully entitled to find that the procedure for the adoption of Delegated Regulation 2020/389 consisted of several successive stages and that the final stage of that procedure was the absence of any objection on the part of the Parliament and the Council, in accordance with Article 16 of Regulation No 347/2013 and Article 290 TFEU. From that, the Commission infers that, when the appellants brought their action, the act at issue was not yet legally binding, since the procedure for the adoption of Delegated Regulation 2020/389 had not yet been completed.
34 The Kingdom of Spain merely puts forward arguments relating to the substance of the action at first instance, in the event that the Court upholds the appeal and disposes of the case. Findings of the Court
35 In the first place, in so far as, by their single ground of appeal, Aquind and others submit that the General Court erred in law in holding that only an act which has already entered into force may constitute an act open to challenge under Article 263 TFEU, on the ground that it is only after that entry into force that it produces binding legal effects, it should be noted that, in accordance with settled case-law, referred to by the General Court in paragraph 18 of the order under appeal, measures the legal effects of which are binding on, and capable of affecting the interests of the applicant by bringing about a distinct change in its legal position are acts or decisions which may be the subject of an action for annulment under Article 263 TFEU (judgment of 11 November 1981, IBM v Commission , 60/81, EU:C:1981:264, paragraphs 9 and 10).
36 In that regard, the General Court also stated, in paragraph 20 of that order, that, in the context of an action for annulment under Article 263 TFEU, the admissibility of the action must be assessed by reference to the situation prevailing on the date on which the application was lodged (judgment of 24 October 2013, Deutsche Post v Commission , C‑77/12 P, not published, EU:C:2013:695, paragraph 65).
37 In that context, the General Court stated, in paragraph 21 of the order under appeal, that the publication of an act did not constitute a precondition for entitlement to bring proceedings against that measure, relying in that regard on paragraphs 35 to 39 of the judgment of 26 September 2013, PPG and SNF v ECHA (C‑626/11 P, EU:C:2013:595), while pointing out, in the last sentence of paragraph 21, that the possibility of bringing such an action before the contested act is published could be envisaged only if the act in question produces binding legal effects such as to affect the interests of the applicant.
38 In paragraph 22 of that order, the General Court stated that that case-law must guide it in its examination of whether the act at issue constitutes an act open to challenge. In that regard, it stated, in paragraphs 23 to 31 of that order, that that act had been adopted by the Commission in the exercise of a power which the EU legislature had, pursuant to Article 290 TFEU and using the option provided for in paragraph (2)(b) of Article 290 TFEU, delegated to the Commission by means of Article 16 of Regulation No 347/2013, and that, in the context of the procedure set out in Article 16(4) and (5), there was a stage during which the Parliament or the Council could raise objections to the act at issue, and that that objections stage had not yet ended when Aquind and others brought their action for annulment of that act.
39 The General Court concluded from that, in paragraph 32 of the order under appeal, that it could not be considered that, on that date, the act at issue was definitive and that it produced binding legal effects capable of affecting their interests. It therefore concluded, in paragraph 33 of that order, that, on that date, the act at issue was not an act open to challenge. Lastly, in paragraph 35 of the order under appeal, the General Court added that the fact that the act at issue was ultimately not amended during the objections stage did not alter its nature and, therefore, did not permit the inference that it was ‘the definitive act that was adopted and entered into force at the end of the legislative process laid down, pursuant to Article 290 TFEU, in Article 16(5) of Regulation No 347/2013’.
40 It is thus follows from the considerations set out by the General Court in the order under appeal that it held that the act at issue was not, on the date on which Aquind and others brought their action for annulment of that act, capable of being the subject of an action for annulment, not on the ground that, on that date, Delegated Regulation 2020/389 had not yet entered into force, but on the ground that, on that date, the procedure governing the adoption of that delegated regulation, as provided for in Article 16 of Regulation No 347/2013, had not yet been completed.
41 Aquind and others’ line of argument set out in paragraphs 26 and 27 of the present judgment is, therefore, based on a misreading of the order under appeal and must therefore be rejected as unfounded.
42 In the second place, Aquind and others complain that the General Court held that the Commission could not have adopted Delegated Regulation 2020/389 before the expiry of the objections stage, and complain that, consequently, the General Court erred in law in finding that that delegated regulation was therefore not definitive when they brought their action for annulment before it, with the result that that delegated regulation could not be the subject of such an action. In that regard, it should be noted that, in paragraph 30 of the order under appeal, the General Court held that the Commission’s power to adopt, pursuant to Regulation No 347/2013, a delegated act producing binding legal effects required the completion of the entire procedure ensuring the proper implementation of the delegation of power including, therefore, the fulfilment of the condition of the completion of the objections stage laid down by that regulation.
43 The General Court inferred from this, in paragraph 31 of that order, that the Commission was in a position to adopt a delegated act forming part of the legal order and thus producing binding legal effects only by satisfying that condition and thus by making the adopted act subject to that objections stage.
44 In addition, the General Court noted, in paragraph 32 of the order under appeal, that the condition laid down in Article 16(5) of Regulation No 347/2013 had not been satisfied on the date on which the action for annulment was brought and, as has already been stated in paragraph 39 of the present judgment, the General Court concluded that the act at issue could not be regarded as definitive on that date, nor could it be regarded as an act producing binding legal effects capable of affecting the interests of Aquind and others on that date. It referred to that lack of a definitive nature in paragraph 35 of that order.
45 According to the settled case-law of the Court of Justice, in the case of acts adopted by a procedure involving several stages, and particularly where they are the culmination of an internal procedure, it is in principle measures which definitively determine the position of the institution concerned upon the conclusion of that procedure and which are intended to have legal effects capable of affecting the interests of the applicant, that constitute acts open to challenge, and not intermediate measures whose purpose is to prepare for the final decision, which do not have those effects (see, to that effect, judgments of 22 June 2000, Netherlands v Commission , C‑147/96, EU:C:2000:335, paragraph 26 and the case-law cited, and of 6 May 2021, ABLV Bank and Others v ECB , C‑551/19 P and C‑552/19 P, EU:C:2021:369, paragraph 39 and the case-law cited).
46 Furthermore, under the first subparagraph of Article 290(1) TFEU a legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act. Paragraph 2 of that article requires legislative acts to lay down explicitly the conditions to which the delegation is subject and states, in paragraph 2(b), that provision may be made for the condition that the delegated act may enter into force only if no objection has been expressed by the Parliament or the Council within a period set by the legislative act.
47 In addition, under Article 3(4) of Regulation No 347/2013, on the basis of which the act at issue was adopted, the Commission is empowered to adopt delegated acts in accordance with Article 16 of that regulation. In that regard, Article 16(4) of Regulation No 347/2013 provides that ‘as soon as it adopts a delegated act, the Commission shall notify it … to the … Parliament and to the Council’. Under paragraph 5 of that article, ‘a delegated act adopted pursuant to Article 3 shall enter into force only if no objection has been expressed either by the … Parliament or the Council …’. The latter provision therefore reflects the condition to which a delegation may be subject, as set out in Article 290(2)(b) TFEU.
48 It follows from the wording of those provisions that a delegated act must be regarded as having been ‘adopted’ from the time of its adoption by the Commission, since the Parliament and the Council have the power to prevent not the ‘adoption’ of the act but its ‘entry into force’. Consequently, Aquind and others are fully entitled to submit that the objections stage suspends not the adoption of a delegated act but its entry into force. However, although the adoption of an act such as the act at issue definitively determines the Commission’s position and although that act cannot be regarded as an intermediate measure whose purpose is to prepare for the final decision, within the meaning of the case-law referred to in paragraph 45 of the present judgment, that adoption does not, however, close the procedure laid down in Article 290(2)(b) TFEU and, in the present case, in Article 3(4) and Article 16 of Regulation No 347/2013, since that decision was not closed until the expiry of the period available to the Parliament and the Council to raise objections.
49 As follows from paragraphs 30 to 32 of the order under appeal and as has been noted in paragraphs 38 to 40 of the present judgment, the General Court concluded that the act at issue could not be regarded as definitive nor, consequently, as producing binding legal effects in so far as, on the date on which Aquind and others brought their action for annulment, the procedure for the adoption of Delegated Regulation 2020/389, as laid down in those provisions, had not yet been completed.
50 In view of the particular features of the procedure under which Delegated Regulation 2020/389 was adopted, referred to in paragraphs 46 and 47 of the present judgment, the General Court did not err in making such a finding. In accordance with the settled case-law of the Court of Justice, in order to determine whether a contested act produces binding legal effects, it is necessary to examine the substance of that act and to assess those effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the EU institution, body, office or agency which adopted the act (see, to that effect, judgments of 20 February 2018, Belgium v Commission , C‑16/16 P, EU:C:2018:79, paragraph 32, and of 6 May 2021, ABLV Bank and Others v ECB , C‑551/19 P and C‑552/19 P, EU:C:2021:369, paragraph 41 and the case-law cited).
51 It follows that the arguments of Aquind and others, set out in paragraphs 28 to 31 of the present judgment, must be rejected as unfounded.
52 In the light of all of the foregoing considerations, the appeal must be dismissed in its entirety. Costs
53 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, which is applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
54 Since the Commission has applied for costs and Aquind and others have been unsuccessful, the latter must be ordered to bear their own costs and to pay those incurred by the Commission.
55 Article 140(1) of the Rules of Procedure, which also is applicable to appeal proceedings by virtue of Article 184(1) of those rules, provides that the Member States and institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Kingdom of Spain must bear its own costs. On those grounds, the Court (Tenth Chamber) hereby: 1. Dismisses the appeal; 2. Orders Aquind Ltd, Aquind Energy Sàrl and Aquind SAS to bear their own costs and to pay those incurred by the European Commission; 3. Orders the Kingdom of Spain to bear its own costs. Jarukaitis Ilešič Gratsias Delivered in open court in Luxembourg on 1 August 2022. A. Calot Escobar I. Jarukaitis Registrar President of the Tenth Chamber * Language of the case: English.