GC, 2nd chamber, March 5, 2021, No T-885/19

THE GENERAL COURT (Second Chamber),

1 The applicants, Aquind Ltd, Aquind Energy Sàrl and Aquind SAS are the promoters of a proposed electrical interconnector linking the electricity transmission systems of the United Kingdom and France (‘the proposed Aquind Interconnector’).

2 The proposed Aquind Interconnector was included in the list of projects of common interest of the European Union by Commission Delegated Regulation (EU) 2018/540 of 23 November 2017 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 2018 L 90, p. 38), and was thus considered to be a fundamental project in infrastructure necessary for the completion of the internal energy market.

3 Since that list of projects of common interest must be drawn up every two years, the list established by Delegated Regulation 2018/540 was replaced by that established by 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 contested regulation’). The new list in the annex to the contested regulation lists the proposed Aquind Interconnector as one of the projects which are no longer considered to be projects of common interest of the European Union.

Procedure and forms of order sought

4 By application lodged at the Registry of the General Court on 25 December 2019, the applicants asked the Court to annul the contested regulation.

5 On 26 March 2020, the European Commission lodged the defence at the Court Registry.

6 By letters lodged at the Court Registry on 1, 8 and 17 April 2020 respectively, the Federal Republic of Germany, the Kingdom of Spain and the French Republic applied for leave to intervene in support of the Commission.

7 On 12 June 2020, the applicants lodged their reply at the Court Registry.

8 By orders of 3 August 2020, the President of the Second Chamber of the General Court granted the Federal Republic of Germany, the Kingdom of Spain and the French Republic leave to intervene.

9 On 31 August 2020, the Commission lodged the rejoinder at the Court Registry.

10 On 11, 16 and 17 September 2020 respectively, the Federal Republic of Germany, the Kingdom of Spain and the French Republic lodged their statements in intervention at the Court Registry.

11 The applicants claim that the Court should:

– annul the contested regulation in so far as it removes the proposed Aquind Interconnector from the list of projects of common interest of the European Union;

– in the alternative, annul the contested regulation in its entirety;

– order the Commission to pay the costs.

12 The Commission and the Kingdom of Spain contend that the Court should:

– dismiss the application;

– order the applicants to pay the costs.

13 The Federal Republic of Germany and the French Republic contend that the Court should dismiss the application.

Law

14 Under Article 126 of the Rules of Procedure of the General Court, where an action is manifestly inadmissible, the 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.

15 In the present case, the Court, considering that it has sufficient information from the documents in the file, has decided to give a decision without taking further steps in the proceedings.

16 It must be borne in mind at the outset that the Commission, supported to that effect by the French Republic, expressed reservations in the defence as to the admissibility of the action against the contested regulation, without formally raising an objection of inadmissibility. The Commission observed that the action brought by the applicants was premature since, at the time when they lodged their application, the contested regulation had not yet entered into force, was subject to the objection procedure laid down by 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 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), and therefore did not constitute a definitive act that was open to challenge.

17 In the reply, the applicants submit that their action is admissible and dispute the Commission’s arguments on that point. First of all, they submit that the Commission adopted the contested regulation on 31 October 2019 and that, although it was not published in the Official Journal until 11 March 2020, it was already on the Commission’s website. Next, they maintain that the case-law does not regard the date of entry into force of an act as relevant to determining whether the measures constitute a preparatory act or a definitive position on the part of an institution. The applicants add in that connection that the contested regulation constitutes the Commission’s definitive position and that no other legal measure against which an action for annulment may be brought has been adopted. Furthermore, they claim that, in the context of the objection procedure, neither the European Parliament nor the Council of the European Union could adopt an amended act, but could only prevent the contested regulation entering into force. The applicants state that, had the Council or the Parliament objected to the entry into force of the contested regulation, the Commission could then have repealed its act and adopted a new one. Last, the definitive nature of the contested regulation is also evidenced by the fact that no other legal act was adopted by the Commission after the expiry of the opposition period and that the date of the contested regulation remains 31 October 2019.

18 According to settled case-law, 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 (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 16 July 1998, Regione Toscana v Commission, T‑81/97, EU:T:1998:180, paragraph 21).

19 In the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, in principle only measures definitively laying down the position of an institution on the conclusion of that procedure, and not provisional measures intended to pave the way for the final decision are acts that are open to challenge (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 10, and of 10 July 1990, Automec v Commission, T‑64/89, EU:T:1990:42, paragraph 42).

20 It should also be recalled that it is settled case-law 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 at the time when the application was lodged (judgments of 24 October 2013, Deutsche Post v Commission, C‑77/12 P, not published, EU:C:2013:695, paragraph 65; of 9 September 2014, Hansestadt Lübeck v Commission, T‑461/12, not published, EU:T:2014:758, paragraph 22; and of 25 October 2018, KF v SATCEN, T‑286/15, EU:T:2018:718, paragraph 164).

21 Moreover, the provisions of the sixth paragraph of Article 263 TFEU, which specify the formalities – notification or publication – from which the period for bringing an action for annulment begins to run, do not preclude an applicant from bringing an action before the EU Courts as soon as the act at issue has been adopted, without waiting for its notification or publication. It is not stated in that article that the bringing of such an action is subject to the publication or notification of that act. In order to allow the persons concerned sufficient time to challenge a published act of the European Union in full knowledge of the facts, the time limit for bringing an action against such an act starts to run, in accordance with the sixth paragraph of Article 263 TFEU, only upon its publication. The bringing of an action against a European Union act prior to its publication, provided that that act has been adopted, does not jeopardise the objective of there being a time limit for bringing proceedings, which is to protect legal certainty by ensuring that European Union measures which produce legal effects may not indefinitely be called into question. Consequently, while the publication of an act starts to run the period for bringing proceedings on expiry of which that act becomes final, it does not constitute a precondition for entitlement to bring proceedings against that measure (see, to that effect, judgment of 26 September 2013, PPG and SNF v ECHA, C‑626/11 P, EU:C:2013:595, paragraphs 35 to 39). However, it must be pointed out that the possibility of bringing an action before the contested act is published can be envisaged only if, as recalled in paragraph 18 above, the act in question produces binding legal effects such as to affect the interests of the applicant.

22 That case-law must guide the Court in its examination of whether the contested regulation constitutes an act open to challenge and, accordingly, whether the action is admissible.

23 First, it should be recalled that the contested regulation was adopted by the Commission pursuant to a delegation of power granted to it by the legislature pursuant to Article 290 TFEU. Article 290(1) TFEU provides that 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. That provision adds that legislative acts are explicitly to define the objectives, content, scope and duration of the delegation of power. Article 290(2) TFEU states that legislative acts are explicitly to lay down the conditions to which the delegation is subject, those conditions being that (i) the Parliament or the Council may decide to revoke the delegation and (ii) 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.

24 Second, it must be borne in mind that, by means of Regulation No 347/2013, the legislature delegated to the Commission the power to adopt and review the list of projects of common interest of the European Union in relation to strategic trans-European energy infrastructure.

25 In accordance with Article 3(3) and the second subparagraph of Article 3(4) of Regulation No 347/2013, that list is to be drawn up by the Commission on the basis of regional lists adopted by the decision-making bodies of regional groups, comprising the Member States and the Commission, according to the contribution of each project to implementing the energy infrastructure priority corridors and areas and their compliance with the criteria applicable to projects of common interest.

26 Pursuant to Article 16(4) of Regulation No 347/2013, as soon as it adopts a delegated act, the Commission is to notify it simultaneously to the Parliament and the Council. In accordance with Article 16(5) of that regulation, a delegated act adopted by the Commission is to enter into force only if the Parliament or the Council has not objected within a period of two months of notification of that act to the Parliament and the Council or if, before the expiry of that period, the Parliament and the Council have both informed the Commission that they will not object. That period is to be extended by two months at the initiative of the Parliament or of the Council.

27 Third, it should be observed that, in the present case, the stage during which the Parliament and the Council could raise any objections to the contested regulation expired initially on 31 December 2019. That stage was extended by two months, that is to say until 29 February 2020. Over the course of those four months, neither the Parliament nor the Council raised any objections. The contested regulation was therefore published in the Official Journal on 11 March 2020 and entered into force on the 20th day following its publication.

28 It follows from the foregoing that, at the time when the action for annulment was brought, namely 25 December 2019, the objections stage during which the Parliament or the Council could object to the entry into force of the contested regulation had not been completed.

29 It must be pointed out that the mechanism for the delegation of power established in Article 290 TFEU must be viewed as a whole. Article 290(2) TFEU provides that the delegation of the power to adopt non-legislative acts of general application may be made subject to a condition, namely that of going through the ‘objections stage’ within the period prescribed by the legislative act. Completion of that ‘test’ is therefore an integral part of the proper implementation of the delegation of power.

30 In Regulation No 347/2013, the legislature made use of the power provided for in Article 290(2) TFEU to make the delegation of power to the Commission subject to the condition that the objections stage be completed. Thus, the Commission’s power to adopt, pursuant to that regulation, a delegated act producing binding legal effects requires the completion of the entire procedure ensuring the proper implementation of the delegation of power and, therefore, the fulfilment of the condition laid down by that regulation.

31 In other words, this means that the Commission is in a position to create a delegated act forming part of the legal order and thus producing binding legal effects only by satisfying the condition laid down in Regulation No 347/2013 and thus putting the adopted act to the test in the ‘objections stage’ of a maximum duration of four months.

32 As pointed out in paragraphs 27 and 28 above, the condition laid down in Article 16(5) of Regulation No 347/2013 had not been satisfied at the time when the action for annulment was brought. It follows that the act adopted by the Commission on 31 October 2019 could not be regarded as definitive as at 25 December 2019 and could not be regarded as an act producing binding legal effects capable of affecting the applicants’ interests on that date.

33 It follows that the contested regulation was not an act open to challenge on 25 December 2019.

34 In that context, first, it must be pointed out that an examination of the substance of the action for annulment brought against the contested regulation would require that the Court arrive at a decision on questions on which the Parliament and the Council had not yet had an opportunity to state their position, and would thus have the effect of anticipating the arguments on the substance of the case and confusing the different stages of the administrative and judicial procedures. To allow such an action would therefore be incompatible with the systems of division of powers between the institutions of the European Union such as, on the one hand, the Parliament and the Council and, on the other hand, the EU Courts, as well as with the requirements of the proper administration of justice and the proper course of the administrative procedure to be followed (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 20, and of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 51).

35 Second, the applicants’ argument that the contested regulation was ultimately not amended during the objections stage before the Parliament and the Council must be rejected. The fact that the initial measure – namely the contested regulation – was not amended does not alter its nature. The absence of amendments does not therefore allow the Court to consider that the contested regulation —which, in the light of the case-law referred to in paragraph 20 above, is the sole act that can be examined by the EU Courts in the context of the action for annulment – corresponds to 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.

36 For those reasons, it would also be artificial and erroneous in law to consider that the contested regulation produced binding legal effects as from its adoption, namely on 31 October 2019, and that those effects were only suspended while the possibility of objections on the part of the Parliament or the Council existed.

37 In the light of all the foregoing, it must be held that the contested regulation is not a definitive act producing binding legal effects such as to affect the applicants’ interests. Consequently, the action must be dismissed as being manifestly inadmissible.

Costs

38 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. In the present case, since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, including those relating to the proceedings for interim measures, in accordance with the form of order sought by the latter.

39 Under Article 138(1) of the Rules of Procedure, the Member States which have intervened in the proceedings are to bear their own costs. It follows that the Federal Republic of Germany, the Kingdom of Spain and the French Republic must bear their own costs.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby orders:

1. The action is dismissed as being manifestly inadmissible.

2. Aquind Ltd, Aquind Energy Sàrl and Aquind SAS shall bear their own costs and pay those incurred by the Commission, including those relating to the proceedings for interim measures.

3. The Federal Republic of Germany, the Kingdom of Spain and the French Republic shall bear their own costs.