T-565/14

ORDER OF THE GENERAL COURT (Seventh Chamber) 17 July 2015 (*) (Environment — Regulation (EC) No 1367/2006 — Commission decision concerning the notification by Poland of a transitional national plan as referred to in Article 32 of Directive 2010/75/EU on industrial emissions — Refusal of internal review — Measure of individual scope — Aarhus Convention — Period allowed for commencing proceedings — Lateness — Action in part manifestly inadmissible and in part manifestly devoid of any foundation in law) In Case T‑565/14, European Environmental Bureau (EEB), established in Brussels (Belgium), represented by S. Podskalská, lawyer, applicant, v European Commission, represented by L. Pignataro-Nolin, S. Petrova and G. Wilms, acting as Agents, defendant, APPLICATION, first, for annulment of Commission Decision C(2014) 804 final of 17 February 2014 on the notification by the Republic of Poland of a transitional national plan referred to in Article 32 of Directive 2010/75/EU, on industrial emissions, and, secondly, for annulment of the Commission Decision of 12 June 2014 (Ares (2014) 1915757) declaring inadmissible the applicant’s request that the Commission review its decision of 17 February 2014, THE GENERAL COURT (Seventh Chamber), composed of M. van der Woude, President, I. Wiszniewska-Białecka (Rapporteur) and I. Ulloa Rubio, Judges, Registrar: E. Coulon, makes the following Order  Background to the dispute 1        The applicant, European Environmental Bureau (EEB), is an association constituted under Belgian law, established in Brussels (Belgium), which aims, inter alia, to promote environmental protection. 2        On 17 February 2014, the European Commission adopted Decision C(2014) 804 final, on the notification by the Republic of Poland of a transitional national plan referred to in Article 32 of Directive 2010/75/EU on industrial emissions (‘the decision of 17 February 2014’). The Commission did not raise any objection to the transitional national plan notified by the Republic of Poland. 3        The operative part of that decision is worded as follows: ‘Article 1 1. On the basis of Article 32(1), (3) and (4) of Directive 2010/75 and of Implementing Decision 2012/115/EU, no objections are raised against the transitional national plan, which the Republic of Poland notified to the Commission on 31 December 2012 pursuant to Article 32(5) of Directive 2010/75, as amended in accordance with the additional information sent on 27 June 2013, 25 September 2013 and 14 November 2013. 2. The list of plants covered by the transitional national plan, the pollutants for which those plants are covered, and the applicable emission ceilings are laid down in the Annex. 3. The implementation of the transitional national plan by the Polish authorities shall not exempt the Republic of Poland from compliance with the provisions of Directive 2010/75 concerning the emissions from the individual combustion plants covered by the plan, and with other relevant bodies of the European Union environmental law. Article 2 The Commission shall assess if any subsequent changes to the transitional national plan, notified by the Republic of Poland in the future, comply with the provisions listed in Article 32(1), (3) and (4) of Directive 2010/75 and in Implementing Decision 2012/115. Article 3 This decision is addressed to the Republic of Poland.’ 4        By letter of 1 April 2014, the applicant submitted a request to the Commission for internal review of the decision of 17 February 2014 under Article 10(1) of Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13). 5        By decision of 12 June 2014 (Ares (2014) 1915757) (‘the decision of 12 June 2014’) the Commission rejected that request for internal review as inadmissible. After noting that, under Article 10 of Regulation No 1367/2006, only an administrative act, defined in Article 2(1)(g) of that regulation as being a measure of individual scope, may form the subject of an internal review, the Commission found that the decision of 17 February 2014 did not constitute a measure of individual scope on the ground essentially that it did not establish or approve specific individual obligations for the operators of the combustion plants concerned by the transitional national plan notified by the Republic of Poland and that it was for the Polish authorities to implement that plan and take decisions affecting plants individually.  Procedure and forms of order sought by the parties 6        The applicant brought the present action by application lodged at the Court Registry on 30 July 2014. 7        By document lodged at the Court Registry on 26 August 2014, the Commission requested that the proceedings be stayed pending the decisions of the Court of Justice in Joined Cases C‑401/12 P to C‑403/12 P and Joined Cases C‑404/12 P and C‑405/12 P. By document lodged at the Court Registry on 24 September 2014, the applicant submitted its observations on the request to stay the proceedings. It stated that in its view the request should be refused. 8        By order of 24 October 2014, the President of the Seventh Chamber of the Court ordered that the proceedings in the present case be stayed until the Court of Justice gave a final ruling in Joined Cases C‑401/12 P to C‑403/12 P and Joined Cases C‑404/12 P and C‑405/12 P. 9        By documents lodged at the Court Registry on 24 September 2014, 17 October 2014 and 1 January 2015 respectively, the Council of the European Union, the European Parliament and the Republic of Poland requested leave to intervene in support of the form of order sought by the Commission. 10      On 13 January 2015, the Court of Justice delivered the judgments in Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht (C‑401/12 P to C‑403/12 P, ECR, EU:C:2015:4) and Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe (C‑404/12 P and C‑405/12 P, ECR, EU:C:2015:5). 11      On 4 February 2015, the General Court requested the parties to inform it of the conclusions that they draw for the present case from the judgments in Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, cited in paragraph 10 above (EU:C:2015:4) and Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe, cited in paragraph 10 above (EU:C:2015:5). 12      By documents lodged at the Court Registry on 25 and 26 February 2015 respectively, the applicant and the Commission submitted their observations. 13      The applicant claims that the Court should: –        annul the decision of 12 June 2014; –        annul the decision of 17 February 2014; –        order the Commission to pay the costs. 14      The Commission contends that the Court should: –        dismiss the action against the decision of 12 June 2014 as unfounded; –        dismiss the action against the decision of 17 February 2014 as inadmissible; –        order the applicant to pay the costs.  Law 15      Under Article 126 of the Rules of Procedure of the General Court, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the General Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings. 16      In the present case, the Court considers it has sufficient information from the documents in the file and has decided to give a decision without taking further steps in the proceedings.  The application for the annulment of the decision of 17 February 2014 17      The Commission contends that the action against that decision is manifestly inadmissible because it is out of time and the applicant does not have locus standi. 18      Under the sixth paragraph of Article 263 TFEU, the proceedings provided for in that article are to be instituted within two months of the publication of the contested measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. 19      According to the case-law, the provision by the Commission of access to a full version of the text of a decision placed on its website, coupled with the publication of a notice in the Official Journal of the European Union allowing interested parties to identify the decision in question and informing them of the possibility of viewing it on the Internet, must be considered to constitute publication within the meaning of the sixth paragraph of Article 263 TFEU (see, by analogy, orders of 19 September 2005 in Air Bourbon v Commission, T‑321/04, ECR, EU:T:2005:328, paragraph 34, and 21 November 2005 in Tramarin v Commission, T‑426/04, ECR, EU:T:2005:405, paragraph 53). 20      In the present case, a notice that the decision of 17 February 2014 had been adopted was published on 19 February 2014 in the Official Journal (OJ 2014 C 47, p. 3). That notice contained an electronic link to the decision of 17 February 2014. 21      The period of two months for commencing proceedings, increased by the period of 14 days laid down in Article 59 of the Rules of Procedure and by the single period of 10 days on account of distance laid down in Article 60 of those rules, expired on 15 May 2014. 22      Since the application was submitted to the Court Registry by fax on 30 July 2014, the application for the annulment of the decision of 17 February 2014 is out of time. 23      In addition, the applicant has not proved — or even invoked — the existence of unforeseeable circumstances or force majeure such as would permit the Court to derogate from the time-limit in question on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice, which is applicable to proceedings before the General Court pursuant to Article 53 of that Statute. 24      Consequently, there is no need to rule on the applicant’s locus standi, and it is sufficient to note that the action brought against the decision of 17 February 2014 is out of time and, therefore, to dismiss the application for annulment of that decision as manifestly inadmissible.  The application for the annulment of the decision of 12 June 2014 25      The applicant puts forward three pleas for annulment. By the first plea, it submits that the Commission wrongly found that the application for internal review of the decision of 17 February 2014 was inadmissible pursuant to Article 2(1)(g) of Regulation No 1367/2006. By the second plea, the applicant submits, in essence, that Articles 2(1)(g) and 10 of Regulation No 1367/2006 infringe Article 9(3) of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, signed at Aarhus on 25 June 1998 (‘the Aarhus Convention’). By the third plea in law, the applicant submits that the Commission based its conclusion that the request for internal review was inadmissible pursuant to Article 2(1)(g) of Regulation No 1367/2006 on an incorrect interpretation of Article 32(4) of Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (OJ 2010 L 334, p. 17). 26      It is necessary to start with the second plea in law. 27      In addition, since by the first and third pleas in law, the applicant seeks to prove that in the decision of 12 July 2014 the Commission infringed the same provision, namely Article 2(1)(g) of Regulation No 1367/2006, those pleas will be considered together.  The second plea in law, alleging that Articles 2(1)(g) and 10 of Regulation No 1367/2006 are unlawful in the light of Article 9(3) of the Aarhus Convention 28      The applicant submits, in essence, first that Articles 2(1)(g) and 10 of Regulation No 1367/2006 are contrary to Article 9(3) of the Aarhus Convention and, secondly, that those provisions of Regulation No 1367/2006 must be interpreted, to the fullest extent possible, in a manner consistent with Article 9(3) of the Aarhus Convention so that the decision of 17 February 2014 may be reviewed. 29      As regards the first argument, it is sufficient to note that the Court of Justice has held that Article 9(3) of the Aarhus Convention cannot be relied on in order to assess the legality of Regulation No 1367/2006 (see, to that effect, judgments in Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, cited in paragraph 10 above, EU:C:2015:4, paragraphs 55 to 61, and Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe, cited in paragraph 10 above, EU:C:2015:5, paragraphs 47 to 53). 30      As regards the second argument, it must be understood — in the light of Article 9(3) of the Aarhus Convention which uses the general terms ‘acts’ and ‘omissions’ and does not restrict the right of access to justice solely to measures of individual scope — as seeking an interpretation of the concept of administrative acts in Article 10 of Regulation No 1367/2006 as including measures of general application. 31      Since the Aarhus Convention was signed by the European Community and then approved by Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (OJ 2005 L 124, p. 1), it has primacy over secondary Community legislation and Regulation No 1367/2006 must be interpreted in conformity with that convention (see, by analogy, judgments of 10 September 1996 in Commission v Germany, C‑61/94, ECR, EU:C:1996:313, paragraph 52, and 12 January 2006 in Algemene Scheeps Agentuur Dordrecht, C‑311/04, ECR, EU:C:2006:23, paragraph 25). However, the principle that secondary Community law must be interpreted in conformity cannot serve as the basis for an interpretation of that law contra legem (see, by analogy, judgment of 16 July 2009 in Mono Car Styling, C‑12/08, ECR, EU:C:2009:466, paragraph 61). 32      Under Article 10 of Regulation No 1367/2006, only ‘administrative act[s]’, which are defined in Article 2(1)(g) of that regulation as being ‘measure[s] of individual scope’, may form the subject of a request for internal review. 33      Having regard to that definition of ‘administrative acts’, it is not possible to interpret Article 10 of Regulation No 1367/2006 in the manner sought by the applicant, that is to say that administrative acts encompass measures of general application. Such an interpretation would be contra legem. 34      Consequently, the argument alleging that Articles 2(1)(g) and 10 of Regulation No 1367/2006 must be interpreted in conformity, in the light of Article 9(3) of the Aarhus Convention, is manifestly unfounded. 35      It follows that the second plea in law must be rejected as manifestly unfounded.  The first and third pleas in law, alleging infringement of Article 2(1)(g) of Regulation No 1367/2006 36      Under Article 10(1) of Regulation No 1367/2006, any non-governmental organisation which meets the criteria set out in Article 11 of that regulation is entitled to make a request for internal review to the EU institution which adopted an administrative act under environmental law. The term ‘administrative act’ as used in that provision is defined in Article 2(1)(g) of that regulation as meaning a measure of individual scope taken by an EU institution under environmental law and having legally binding and external effects. 37      In the first place, the applicant submits that the decision of 17 February 2014 has legally binding and external effects within the meaning of Article 2(1)(g) of Regulation No 1367/2006. It puts forward several arguments in that regard. 38      It must be found that those arguments are ineffective. The Commission did not examine whether that decision had legally binding and external effects. It found that the request for internal review of the decision of 17 February 2014 was inadmissible solely on the ground that that decision did not constitute a measure of individual scope within the meaning of Article 2(1)(g) of Regulation No 1367/2006. 39      In the second place, the applicant submits that the decision of 17 February 2014 is a measure of individual scope within the meaning of Article 2(1)(g) of Regulation No 1367/2006. 40      According to the case-law, in order to determine the scope of a measure, the European Union judicature should not look merely at the official name of the measure but should first take account of its purpose and its content (see, to that effect, judgment of 14 December 1962 in Confédération nationale des producteurs de fruits and légumes and Others v Council, 16/62 and 17/62, EU:C:1962:47, 918). 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 (see, to that effect, order of 8 April 2008 in Saint-Gobain Glass Deutschland v Commission, C‑503/07 P, ECR, EU:C:2008:207, paragraph 71). 41      Furthermore, where an instrument contains limitations or derogations which are temporary or territorial in nature, they form an integral part of the provisions as a whole within which they are found and, in the absence of any misuse of powers, are of the same general nature as those provisions (judgment of 29 June 1993 in Gibraltar v Council, C‑298/89, ECR, EU:C:1993:267, paragraph 18; order of 12 March 2007 in Regione Autonoma Friuli-Venezia Giulia v Commission, T‑417/04, ECR, EU:T:2007:82, paragraph 49; and judgment of 1 July 2008 in Região autónoma dos Açores v Council, T‑37/04, EU:T:2008:236, paragraph 33). 42      In the present case, the decision of 17 February 2014, which is addressed to the Republic of Poland, is based on Article 32 of Directive 2010/75. 43      In that decision, the Commission did not raise any objection to the transitional national plan notified by the Republic of Poland which provides for a temporary exemption from the obligation to comply with the emission ceilings set by Directive 2010/75 for certain pollutants. 44      Since Directive 2010/75 is a measure of general application in so far as it establishes, in abstract and objective terms, a body of general rules for limiting pollutant emissions arising from industrial activities (see recital 2 and Article 1 of that directive), the decision of 17 February 2014, which raises no objection to a temporary derogation from the body of general rules laid down by Directive 2010/75 is, in the light of the case-law cited in paragraph 41 above, of the same general nature as that directive. 45      It must also be found that in the decision of 17 February 2014 the Commission approved the overall emission ceilings for the combustion plants as a whole. It is only in the future that the Polish authorities will have to set out the emission ceilings in respect of each combustion plant concerned by the plan. Therefore, contrary to the applicant’s submissions, that decision does not establish any specific obligation in respect of each of the plants. 46      In addition, although the transitional national plan notified by the Republic of Poland mentions 73 combustion plants, the list of which is set out in annex to the decision of 17 February 2014, that decision is addressed only to the Republic of Poland, not to those combustion plants. Those combustion plants are mentioned there only because of their capacity to contribute to the overall emissions of the pollutants concerned by the plan. By contrast, in so far as that decision approves overall emission ceilings, it applies to objectively determined situations and entails legal effects for categories of persons envisaged generally and in the abstract. 47      The Court of Justice has moreover held that a decision addressed to a Member State relating to a national plan (as referred to in Article 11 of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32)) was of general application and that the fact that that plan had to contain a list of the installations covered by the emission trading scheme and a statement of the allowances which that State intended to grant to those installations did not make it possible to conclude that, by the decision relating to the plan, the Commission had ruled on the individual applications and that that decision constituted a bundle of individual decisions (see, to that effect, order in Saint-Gobain Glass Deutschland v Commission, cited in paragraph 40 above, EU:C:2008:207, paragraphs 73 and 77). 48      Lastly, the applicant cannot maintain that the Commission’s conclusion that the decision of 17 February 2014 is not a measure of individual scope is based on an incorrect interpretation of Article 32(4) of Directive 2010/75. That article provides that the measures foreseen for each of the plants (in order to ensure timely compliance with the emission limit values) must be included in the transitional national plan. The Commission rightly found that those measures foreseen for each of the installations only formed part of the information provided by the Republic of Poland to the Commission which enabled it to approve, in the decision of 17 February 2014, the overall emission ceilings (see recitals 2, 4 and 10 of that decision). Those measures foreseen for each of the plants, on the other hand, were not approved by the Commission. That is confirmed by Commission Implementing Decision 2012/115/EU of 10 February 2012 laying down rules concerning the transitional national plans referred to in Directive 2010/75 (OJ 2012 L 52, p. 12) which, although it lays down detailed methods for calculating the overall emission ceilings so that the Commission may verify them, does not lay down any rule, in relation to the measures foreseen for each of the plants, in the light of which the Commission could verify those measures. 49      The applicant is therefore wrong to maintain that the Commission infringed Article 2(1)(g) of Regulation No 1367/2006 in finding that the decision of 17 February 2014 was not of individual scope. 50      It follows that the first and third pleas in law must be rejected as manifestly unfounded and the application for the annulment of the decision of 12 June 2014 as manifestly lacking any foundation in law. 51      It follows from the foregoing that the action must be dismissed in its entirety as being in part inadmissible and in part manifestly lacking any foundation in law. 52      Accordingly, there is no need to adjudicate on the applications for leave to intervene of the Council, the Parliament and the Republic of Poland.  Costs 53      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. As the applicant has been unsuccessful, it must be ordered to pay its own costs and those incurred by the Commission, in accordance with the form of order sought by the latter. 54      Under Article 144(10) of the Rules of Procedure, where as in the present case the proceedings in the main case are concluded before the applications to intervene have been decided, the applicant, the Commission and the applicants for leave to intervene shall each bear their own costs relating to the applications to intervene. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby orders: 1.      The action is dismissed. 2.      There is no need to adjudicate on the applications for leave to intervene of the Council of the European Union, the European Parliament and the Republic of Poland. 3.      European Environmental Bureau (EEB) shall bear its own costs and pay those incurred by the European Commission. 4.      EEB, the Commission, the Council, the Parliament and the Republic of Poland shall each bear their own costs relating to the applications to intervene. Luxembourg, 17 July 2015. E. Coulon         M. van der Woude Registrar         President * Language of the case: English.