Grupa Azoty and Others v Commission (State aid – Guidelines on certain State aid measures in the context of the system for greenhouse gas emission allowance trading - Judgment) [2023] EUECJ C-73/22P (13 July 2023)

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Grupa Azoty and Others v Commission (State aid – Guidelines on certain State aid measures in the context of the system for greenhouse gas emission allowance trading - Judgment) [2023] EUECJ C-73/22P (13 July 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/C7322P.html Cite as: [2023] EUECJ C-73/22P, EU:C:2023:570, ECLI:EU:C:2023:570

(Appeal – State aid – Guidelines on certain State aid measures in the context of the system for greenhouse gas emission allowance trading – Eligible economic sectors – Exclusion of the nitrogen compounds and fertilisers sector – Action for annulment – Admissibility – Right of natural or legal persons to institute proceedings – Fourth paragraph of Article 263 TFEU – Condition that the applicant must be directly concerned)

TWO APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, brought respectively on 3 and 4 February 2022,

Lipasmata Kavalas LTD Ypokatastima Allodapis, established in Palaio Fáliro (Greece),

European Commission, represented initially by A. Bouchagiar, G. Braga da Cruz and J. Ringborg, and subsequently by A. Bouchagiar and J. Ringborg, acting as Agents,

Thrace Nonwovens & Geosynthetics monoprosopi AVEE mi yfanton yfasmaton kai geosynthetikon proïonton S.A., established in Magikó (Greece),

European Commission, represented initially by A. Bouchagiar, G. Braga da Cruz and J. Ringborg, and subsequently by A. Bouchagiar and J. Ringborg, acting as Agents,

composed of C. Lycourgos (Rapporteur), President of the Chamber, L.S. Rossi, J.‑C. Bonichot, S. Rodin and O. Spineanu-Matei, Judges,

after hearing the Opinion of the Advocate General at the sitting on 2 March 2023,

1 By their appeals, Grupa Azoty S.A., Azomureș SA and Lipasmata Kavalas LTD Ypokatastima Allodapis (C‑73/22 P), and Advansa Manufacturing GmbH, Beaulieu International Group NV, Brilen SA, Cordenka GmbH & Co. KG, Dolan GmbH, Enka International GmbH & Co. KG, Glanzstoff Longlaville SAS, Infinited Fiber Company Oy, Kelheim Fibres GmbH, Nurel SA, PHP Fibers GmbH, Teijin Aramid BV, Thrace Nonwovens & Geosynthetics monoprosopi AVEE mi yfanton yfasmaton kai geosynthetikon proïonton S.A. and Trevira GmbH, (C‑77/22 P) seek to have set aside, as regards the first set of appellants, the order of the General Court of the European Union of 29 November 2021, Grupa Azoty and Others v Commission (T‑726/20), and, as regards the second set of appellants, the order of the General Court of the European Union of 29 November 2021, Advansa Manufacturing and Others v Commission (T‑741/20) (together, ‘the orders under appeal’), by which the General Court dismissed as inadmissible their respective actions for the annulment in part of the communication from the Commission entitled ‘Guidelines on certain State aid measures in the context of the system for greenhouse gas emission allowance trading post-2021’, published in the Official Journal of the European Union of 25 September 2020 (OJ 2020 C 317, p. 5) (‘the guidelines at issue’).

2 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 European Union and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32), as amended by Directive (EU) 2018/410 of the European Parliament and of the Council of 14 March 2018 (OJ 2018 L 76, p. 3) (‘Directive 2003/87’), established a system for greenhouse gas emission allowance trading within the European Union (‘the ETS’).

‘Member States should adopt financial measures … in favour of sectors or subsectors which are exposed to a genuine risk of carbon leakage due to significant indirect costs that are actually incurred from greenhouse gas emission costs passed on in electricity prices, provided that such financial measures are in accordance with State aid rules, and in particular do not cause undue distortions of competition in the internal market. …’

‘Sectors and subsectors in relation to which the product resulting from multiplying their intensity of trade with third countries, defined as the ratio between the total value of exports to third countries plus the value of imports from third countries and the total market size for the European Economic Area (annual turnover plus total imports from third countries), by their emission intensity, measured in kgCO2, divided by their gross value added (in euros), exceeds 0,2, shall be deemed to be at risk of carbon leakage. …’

5 Article 10b(2) and (3) of that directive sets out the conditions under which sectors and subsectors that do not exceed that threshold may also be considered to be at risk of carbon leakage and be included in the group referred to in paragraph 1 of that provision.

6 In point 7 of the guidelines at issue, the European Commission states that in those guidelines, it ‘sets out the conditions under which aid measures in the context of the EU ETS may be considered compatible with the internal market under Article 107(3)(c) [TFEU]’.

‘The principles set out in these Guidelines apply only to the specific aid measures provided for in Articles 10a(6) and 10b of the Directive [2003/87].’

‘19. Aid for indirect emission costs will be considered compatible with the internal market within the meaning of Article 107(3)(c) [TFEU] provided that the conditions below are met.

20. The objective of this type of aid is to prevent a significant risk of carbon leakage, in particular due to [EU quota] costs passed on in electricity prices supported by the beneficiary, if its competitors from third countries do not face similar costs in their electricity prices and the beneficiary is unable to pass on those costs to product prices without losing significant market share. Addressing the risk of carbon leakage, by assisting beneficiaries to reduce their exposure to this risk, serves an environmental objective, since the aid aims to avoid an increase in global greenhouse gas emissions due to shifts of production outside the Union, in the absence of a binding international agreement on reduction of greenhouse gas emissions.

21. To limit the risk of competition distortion within the internal market, the aid must be limited to sectors that are exposed to a genuine risk of carbon leakage due to significant indirect costs that are actually incurred as a consequence of greenhouse gas emission costs being passed on in electricity prices. For the purpose of these Guidelines, a genuine risk of carbon leakage is considered to exist only if the beneficiary is active in a sector listed in Annex I.’

9 Annex I consists of a list of 14 sectors deemed to be exposed to a genuine risk of carbon leakage due to indirect emissions costs.

10 Point 64 of the guidelines at issue provides that from 1 January 2021 they replace the Guidelines on certain State aid measures in the context of the greenhouse gas emission allowance trading scheme post-2012 published on 5 June 2012 (OJ 2012 C 158, p. 4). The Commission provides in points 65 and 66 of the guidelines at issue that it will apply the principles set out therein from 1 January 2021 until 31 December 2030 to all notified aid measures in respect of which it is called upon to take a decision from 1 January 2021, even where the projects were notified prior to their publication.

11 The appellants are undertakings that are active in the nitrogen compounds and fertiliser manufacturing sector.

12 That sector is not included in the list in Annex I to the guidelines at issue, entitled ‘Sectors deemed to be exposed to a genuine risk of carbon leakage due to indirect emission costs’, whereas it was included in the list in Annex II to the guidelines published on 5 June 2012, entitled ‘Sectors and subsectors deemed ex-ante to be exposed to a significant risk of carbon leakage due to indirect emission costs’, which was applicable until 31 December 2020.

13 By applications lodged at the Registry of the General Court on 15 and 16 December 2020, the appellants brought actions under Article 263 TFEU for annulment of Annex I to the guidelines at issue.

14 By separate documents lodged at the General Court Registry on 1 and 12 March 2021, the Commission raised pleas of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court.

15 By the orders under appeal, the General Court declared the actions inadmissible on the ground that the appellants, which are not addressees of the guidelines at issue, are not directly concerned by them, within the meaning of the fourth paragraph of Article 263 TFEU, since those guidelines do not directly affect the legal situation of the appellants.

16 In support of that assessment, the General Court stated in particular, in paragraphs 39 to 43 of the orders under appeal, that even though a genuine risk of carbon leakage was regarded in the guidelines at issue as existing only where the beneficiary of the aid is active in a sector listed in Annex I to those guidelines, that does not preclude the Member States from being able to notify the Commission of aid measures in favour of undertakings which are active in sectors other than those listed in that annex, and attempting to show – despite the non-fulfilment of one of the criteria laid down in the guidelines in question – that aid to those undertakings complies with Article 107(3)(c) TFEU. While recognising that it was very probable in such a case that the Commission would adopt, on the basis of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9), a decision finding the intended State aid to be incompatible with the internal market, the General Court held that only that decision would be capable of having direct legal effects on the undertakings that might have benefited from the State aid.

17 The General Court also pointed out, in paragraph 38 of the orders under appeal, that if a Member State does not adopt any aid measure falling within the guidelines at issue, the Commission takes no decision under Regulation 2015/1589. Accordingly, the guidelines do not directly affect the appellants’ legal situation in that situation either.

– in the alternative, set aside the orders under appeal on the sole ground that the General Court should have reserved the decision on admissibility until consideration of the merits of the action;

– reserve the question of the costs of the proceedings before the General Court until it has completed its consideration of the merits.

– in the alternative, were the Court to set aside the orders under appeal, it should itself rule on the actions and dismiss them as inadmissible and order the appellants to pay the costs.

20 By decision of the President of the Court of 16 September 2022, Cases C‑73/22 P and C‑77/22 P were joined for the purposes of the oral part of the procedure and the judgment.

21 By document lodged at the Registry of the Court of Justice on 21 April 2023, the appellants in Case C‑73/22 P requested that the oral part of the procedure be reopened.

22 In support of that request, those appellants submit that the question of whether the guidelines at issue are of direct concern to them, within the meaning of the fourth paragraph of Article 263 TFEU, was not duly examined in the Opinion of the Advocate General and has not been the subject of full discussion before the Court.

23 Discussion of that issue must, according to the appellants, continue in the framework of a hearing and concern the content, nature, aims and legal effects of the act at issue, and the right to effective judicial protection. They argue that the analysis set out in the Opinion does not take due account of those factors.

24 In that regard, it should be observed that, in accordance with Article 83 of its Rules of Procedure, the Court of Justice may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not yet been debated between the parties.

25 In the present case, as regards, first, the observations made by the appellants with regard to the Advocate General’s Opinion, it must be borne in mind that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court of Justice make no provision for the parties to submit observations in response to the Advocate General’s Opinion. Under the second paragraph of Article 252 TFEU, the Advocate General, acting with complete impartiality and independence, is to make, in open court, reasoned submissions on cases which require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s conclusion or by the reasoning which led to that conclusion. Consequently, a party’s disagreement with the Advocate General’s Opinion, irrespective of the questions that he or she examines in his or her Opinion, cannot in itself constitute grounds justifying the reopening of the oral part of the procedure (judgment of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraphs 37 and 38 and the case-law cited).

26 As regards, second, the exchange of arguments which has taken place between the parties, the Court considers, after hearing the Advocate General, that it has, at the end of the written part of the procedure before it, all the information necessary to give a ruling, since the arguments contained in the request to reopen the oral part of the procedure were extensively debated during that written part.

27 It should be recalled in that regard that the right to be heard does not impose an absolute obligation to hold a public hearing in all proceedings. That is true, inter alia, where the case does not raise any questions of fact or of law that cannot be adequately resolved on the basis of the documents in the file and the written observations of the parties (judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 123 and the case-law cited). Article 76(2) of the Rules of Procedure of the Court of Justice specifically provides that the latter may decide not to hold a hearing if it considers, on reading the written pleadings or observations lodged during the written part of the procedure, that it has sufficient information to give a ruling.

28 In the light of the foregoing, there are no grounds to grant the request that the oral part of the procedure be reopened.

29 In support of their respective appeals, the appellants put forward, principally, two identical grounds of appeal, alleging, first, an inadequate statement of reasons and, second, an error of law in applying the condition that the natural or legal person bringing an action for annulment against an act which is not addressed to that person must be directly concerned by that act. By a ground of appeal in the alternative, which is also the same in both of the cases, they claim that the General Court should have joined its examination of the pleas of inadmissibility raised by the Commission to consideration of the actions on their merits.

30 By the first part of their first ground of appeal, the appellants claim that the General Court failed to establish the facts and did not address the arguments raised before it.

31 In that regard, the appellants submit that they had argued before the General Court that the guidelines at issue, unlike other guidelines, are not merely indicative but create legal obligations on Member States. Since Annex I to the guidelines at issue establishes an exhaustive list of the sectors for which the aid referred to in Article 10a(6) of Directive 2003/87 should be granted, the Commission has made it impossible for the Member States to grant, under that provision, State aid compatible with the internal market to a sector not referred to in that annex. It follows, according to the appellants, that that annex is binding on the Member States.

32 However, despite that argument being put forward, the General Court made no factual findings on the content, nature or context of the guidelines at issue. That omission resulted in an inadequate statement of reasons, in contrast to that given, in particular, in the judgment of the Court of Justice of 19 July, 2016, Kotnik and Others (C‑526/14, EU:C:2016:570), and in the order of the General Court of 23 November, 2015, EREF v Commission (T‑694/14, EU:T:2015:915). In both of those two judicial decisions, concerning, respectively, a communication relating to the banking sector and on guidelines in the field of environmental protection, the EU judicature based its assessment on a detailed analysis of the acts at issue.

33 By the second part of the first ground of appeal, the appellants assert that the General Court failed to give sufficient reasons for its finding, in paragraph 38 of the orders under appeal, that the condition, whereby a natural or legal person bringing an action against an act of which that person is not the addressee must be directly concerned by that act, is not met even where a Member State does not adopt an aid measure covered by the guidelines at issue.

34 They observe that that situation may arise since Article 10a(6) of Directive 2003/87 does not oblige Member States to adopt any aid measures. It is therefore important to understand why the General Court considers that, where no measures are adopted by Member States, the guidelines at issue cannot be of direct concern to the appellants. The General Court’s assessment, which amounts to finding that solely a Commission decision under Regulation 2015/1589 may be of direct concern to the appellants, does not contain sufficient reasoning.

36 As regards the duty to state reasons that falls upon the General Court pursuant to Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union, it is settled case-law that a ruling by the General Court must clearly and unequivocally disclose the latter’s reasoning, so that the persons concerned can ascertain the reasons for the decision taken and the Court of Justice can exercise its power of review (see, inter alia, judgments of 13 January, Germany and Others v Commission, C‑177/19 P to C‑179/19 P, EU:C:2022:10, paragraph 37, and of 9 March 2023, Les Mousquetaires and ITM Entreprises v Commission, C‑682/20 P, EU:C:2023:170, paragraph 40).

37 In the orders under appeal, the General Court first of all described, in a section dealing with the background to the dispute, the content and context of the guidelines at issue; it then referred, in the first part of its assessment, to the case-law relating to the conditions governing the admissibility of actions brought by natural or legal persons against acts which are not addressed to them.

38 It went on to state in paragraph 34 of those orders that the list of economic sectors appearing in Annex I to the guidelines at issue has the effect, in principle, of obliging the Commission, within the scope of those guidelines, to consider as compatible with the internal market only State aid granted to the sectors mentioned in that list.

39 In the light of those factors, the General Court, in paragraphs 36 to 43 of the orders under appeal, analysed the various situations which may arise as regards the aid covered by the guidelines at issue, the granting of which is encouraged by Article 10a(6) of Directive 2003/87. Paragraphs 36 and 37 of those orders concern situations in which a Member State decides to grant that aid, while paragraph 38 of the orders relates to a situation where a Member State decides not to grant aid. Paragraphs 39 to 43 of the orders in question concern the case of a Member State which intends to grant such aid to a sector which is not included in Annex I to the guidelines at issue and notifies that aid to the Commission on the basis of primary EU law, namely Article 107(3)(c) TFEU.

40 By means of that analysis, the General Court provided detailed reasoning which explains unequivocally why the arguments put forward by the appellants were rejected. The latter had in fact argued that the guidelines at issue bind the Member States, preclude the latter from granting aid to sectors not referred to in Annex I to those guidelines, and thus directly affect the legal situation of undertakings active in those sectors.

41 As regards, in particular, the situation referred to by the appellants, in which a Member State decides against adopting any aid measure falling within the scope of the guidelines at issue, the General Court, in paragraph 38 of those orders, set out in clear terms its assessment that those guidelines cannot affect the legal situation of the appellants in such a situation since the Commission will not, in the absence of aid, be led to apply those guidelines.

42 The General Court also explained in detail, in paragraphs 39 to 43 of the orders under appeal, summarised in paragraph 16 above, that it remains possible for Member States to notify aid measures to the Commission for an economic sector which, while not referred to in that annex, could, on account of exceptional circumstances, be exposed to a real risk of carbon leakage and be eligible for the grant of aid under Article 107(3)(c) TFEU.

43 Consequently, contrary to what is submitted in the first part of the first ground of appeal, the General Court analysed the pleas of inadmissibility in the light of the content and context of the guidelines at issue and, in paragraphs 36 to 43 of the orders under appeal, addressed the appellants’ arguments and thus set out clearly the reasons for its ruling. Paragraph 38 of those orders, which is criticised specifically by the second part of the first ground of appeal, forms part of the General Court’s reasoning and makes it possible easily to understand the reasons why the General Court considered that Annex I to the guidelines at issue does not directly affect the legal situation of the appellants when there is no grant of the aid covered by those guidelines.

44 It follows that neither of the two parts of the first ground of appeal is well founded. This ground of appeal must therefore be rejected.

45 By their second ground of appeal, the appellants claim that the General Court erred in law by holding that they are not directly concerned by the guidelines at issue.

46 They observe that, in order to determine the legal effects produced by an EU measure, it is necessary to look in particular to the subject matter and content of that measure and to the context of which it forms part. The orders under appeal are not based on such a specific examination but are founded on more general reasoning, which is vitiated by several errors.

47 Accordingly, the General Court proceeded from the incorrect premiss that all the guidelines adopted by the Commission must be treated in the same way from the point of view of Article 263 TFEU. In that regard, the appellants observe that the orders under appeal are in line with the judgment of the Court of Justice of 19 July 2016, Kotnik and Others (C‑526/14, EU:C:2016:570), and the order of the General Court of 23 November 2015, EREF v Commission (T‑694/14, EU:T:2015:915), whereas those rulings concern acts which grant discretion to the Member States, unlike the guidelines at issue.

48 By adopting such an approach, the General Court disregarded the fact that the guidelines at issue are addressed to the Member States and leave them no discretion as regards the economic sectors that are eligible for the aid that may be granted under Article 10a(6) of Directive 2003/87.

49 In the light of the fact that the Member States lack discretion, the General Court, according to the appellants, should have followed the reasoning set out in the judgment of 5 May 1998, Dreyfus v Commission (C‑386/96 P, EU:C:1998:193), paragraph 44 of which states that an individual who is not the addressee of an EU act may be regarded as being directly concerned by that act where the possibility for the addressees of the act in question not to give effect to it is purely theoretical.

50 The General Court erroneously took into account the fact that it may be possible for a Member State to notify the Commission of aid measures in favour of undertakings active in sectors other than those listed in Annex I to the guidelines at issue and to attempt to show that those measures are compatible with the internal market under Article 107(3)(c) TFEU.

51 In that regard, the appellants argue that while it is true that such a possibility does legally exist, that factor in no way alters the fact that the guidelines at issue preclude the aid provided for by Article 10a(6) of Directive 2003/87 from being granted to economic operators that are active in sectors that are not referred to in Annex I to the guidelines. That exclusion is not compensated for by the fact that aid may be granted under Article 107(3)(c) TFEU. Any expectation as to the grant of such aid is purely speculative, while the aid referred to in Article 10a(6) of Directive 2003/87 is formally provided for and encouraged by that provision.

52 In addition, according to the appellants, the General Court relied on an incorrect premiss that an economic operator may only be directly concerned if the Commission adopts a decision under Regulation 2015/1589. The Court of Justice has already held, in the field of State aid, that an economic operator may be directly concerned by the taking of a position by the Commission, without that latter institution having formally adopted a decision concerning that operator (judgment of 17 September 2009, Commission v Koninklijke FrieslandCampina, C‑519/07 P, EU:C:2009:556, paragraphs 48 to 50).

53 As a result of the incorrect assessment carried out by the General Court, the appellants have been deprived of any legal remedy, whereas their case falls within situations, referred to inter alia in paragraph 33 of the judgment of 25 July 2002, Unión de Pequeños Agricultores v Council (C‑50/00 P, EU:C:2002:462), in which the securing of judicial protection requires that it must be possible to bring an action for annulment.

54 As regards that latter point, the appellants point to the fact that Member States are under no obligation to adopt aid measures under Article 10a(6) of Directive 2003/87. They argue that it is likely that no aid measure of the kind referred to in that provision is granted and that no Commission decision is therefore adopted in relation to such aid. In financial terms, such a situation is comparable to one where the Commission decides that notified aid is incompatible with the internal market. However, in the first situation, the appellants, according to the reasoning followed by the General Court, have no legal remedy, whereas in the second they do. That difference cannot be permitted since the effect on the appellants is the same in both cases.

55 Furthermore, they argue that the Court of Justice has recognised that it is not legitimate to expect economic operators affected by an EU act to cause a negative decision to be taken by a Member State in order to be able to challenge that EU act (judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 66). Nor is it plausible to expect Member States to infringe their duty of sincere cooperation under Article 4(3) TEU by notifying aid to the nitrogen compound and fertiliser manufacturing sector even though that sector is not mentioned in Annex I to the guidelines at issue.

56 The Commission argues that this second ground of appeal must also be rejected.

57 As is apparent from points 7 and 9 of the guidelines at issue, the latter set out the requirements that must be satisfied in order for aid measures falling within the scope of the ETS, in particular those referred to in Article 10a(6) of Directive 2003/87, to be capable of being considered as compatible with the internal market under Article 107(3)(c) TFEU.

58 The adoption of such guidelines forms part of the exercise by the Commission of its exclusive competence to assess the compatibility of aid measures with the internal market under Article 107(3) TFEU. In that regard, the Commission enjoys broad discretion (see, to that effect, inter alia, judgments of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraphs 37 to 39, and of 15 December 2022, Veejaam and Espo, C‑470/20, EU:C:2022:981, paragraph 29).

59 By establishing, by means of guidelines, the conditions under which aid measures may be considered to be compatible with the internal market, and by announcing, by publishing those guidelines, that it will apply the rules contained therein, the Commission imposes a limit on the exercise of that discretion, in that, if a Member State notifies proposed State aid which complies with those rules, the Commission must, in principle, authorise that proposed aid. It cannot, as a general rule, depart from those guidelines, at the risk of being found to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (judgments of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraph 40, and of 31 January 2023, Commission v Braesch and Others, C‑284/21 P, EU:C:2023:58, paragraph 90).

60 The fourth paragraph of Article 263 TFEU provides that a natural or legal person may institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

61 The appellants cannot be characterised as being addressees of the guidelines at issue. Consequently, in the light of the wording of the fourth paragraph of Article 263 TFEU itself, the appellants’ standing to bring proceedings was, at the very least, conditional on those guidelines being of direct concern to them, as the General Court observed in paragraph 27 of the orders under appeal.

62 Since the condition that an applicant must be directly concerned by the act being challenged appears, in identical terms, both in the second limb of the fourth paragraph of Article 263 TFEU and in the third limb of that provision, it must have the same meaning for each of those limbs of that provision (judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 73). According to settled case-law, that condition requires two cumulative criteria to be met, namely, first, that the act in question must directly affect the legal situation of that person and, second, it must leave no discretion to its addressees who are entrusted with the task of implementing it, since it is purely automatic and results from the EU rules alone without the application of other intermediate rules (judgment of 16 March 2023, Commission v Jiangsu Seraphim Solar System and Council v Jiangsu Seraphim Solar System, C‑439/20 P and C‑441/20 P, EU:C:2023:211, paragraph 55 and the case-law cited).

63 In accordance with the case-law referred to in paragraph 59 above, the effect of the guidelines at issue, which inter alia concern the aid measures to be adopted by Member States under Article 10a(6) of Directive 2003/87, is that where planned State aid is notified that is in line with the criteria laid down in those guidelines, including the list of eligible sectors contained in Annex I thereto, the Commission must, as a rule, authorise that plan.

64 Since the appellants operate in a sector that does not fall within that annex, an obligation of that kind on the Commission can be of no benefit to them.

65 That said, as the General Court stated, in essence, in paragraphs 39 to 41 of the orders under appeal, those guidelines do not have the legal effect of depriving the appellants of the possibility of being eligible for the grant of the State aid referred to in Article 10a(6) of Directive 2003/87.

66 It must be borne in mind, in that regard, that the adoption of guidelines does not relieve the Commission of its obligation to examine the specific exceptional circumstances on which a Member State may rely, in a particular case, for the purpose of requesting the direct application of Article 107(3) TFEU. Member States retain the right to notify the Commission of proposed State aid which does not meet the conditions set out in guidelines and the Commission may authorise such proposed aid in exceptional circumstances (see, inter alia, judgments of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraphs 41 and 43, and of 31 January 2023, Commission v Braesch and Others, C‑284/21 P, EU:C:2023:58, paragraphs 92 and 93).

67 Accordingly, there is nothing in the ETS that prevents a Member State from notifying proposed aid to the Commission for undertakings in an economic sector not referred to in Annex I to the guidelines at issue, which seeks, under Article 10a(6) of Directive 2003/87, to reduce a real risk of carbon leakage to which that sector is, in its view, subject, and from setting out the circumstances capable of justifying the approval of that proposed aid under Article 107(3)(c) TFEU, despite the fact that the Commission has not identified that sector as being exposed to such a risk in those guidelines.

68 It follows, as the General Court correctly held, that the guidelines at issue, while reducing the appellants’ chances of obtaining aid under Article 10a(6) of Directive 2003/87, nonetheless do not, by themselves, have a decisive influence on their eligibility for such aid and do not therefore directly affect their legal situation.

69 Contrary to what is claimed by the appellants, the fact that they cannot seek a direct legal remedy against the guidelines at issue does not deprive them of effective judicial protection. In fact, EU procedural law permits any natural or legal person to raise a plea alleging that guidelines are unlawful in order to support an action directed against an act, adopted in the light of those guidelines, that affects that person in a manner which satisfies the conditions laid down in the fourth paragraph of Article 263 TFEU (see, by analogy, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 209 to 212).

70 Moreover, in so far as the appellants raise the possibility of Member States deciding not to grant any aid falling under Article 10a(6) of Directive 2003/87, with the result that the Commission makes no decision to authorise or refuse planned aid in the light of the guidelines at issue, it must be held that, in such a situation, the appellants cannot thereby find themselves at a competitive disadvantage in comparison with other undertakings whose economic activity is in the same sector as theirs. In such circumstances, the right to an effective remedy enshrined in the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union does not require that they be able to challenge the lawfulness of those guidelines.

71 In that regard, it is settled case-law that individuals are entitled to effective judicial protection of the rights they derive from the EU legal order (judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others, C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 54 and the case-law cited). However, the right that individuals derive from the rules of EU law on State aid is the right not to be subject to distorted competition (see, to that effect, judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 43 and the case-law cited).

72 It follows from the foregoing that the reasoning followed by the General Court is not vitiated by any error of law and that the second ground of appeal is unfounded.

73 According to the appellants, the General Court should have considered the actions on the merits before ruling on admissibility. In that regard, they observe that pursuant to Article 130(7) of the Rules of Procedure of the General Court, the latter, ‘where special circumstances so justify’, is to reserve its decision on preliminary objections and other issues until it rules on the substance of the case. For the proper administration of justice, the General Court should have considered that such circumstances exist in the present case. It was necessary to hear the arguments on the merits in order to assess the legal effects of the guidelines at issue.

74 According to the Commission, this alternative ground of appeal is ineffective and in any event unfounded.

75 As the Court of Justice has already held, it is for the General Court to assess whether the proper administration of justice justifies ruling immediately on a plea of inadmissibility or reserving it for examination in the final judgment. Reserving a plea for the final judgment is not required where the assessment of that plea does not depend on the assessment of the substantive pleas made by the applicant (judgment of 25 October 2017, Romania v Commission, C‑599/15 P, EU:C:2017:801, paragraph 46 and the case-law cited).

76 In the present case, it is clear from the examination of the second of the two principal grounds of appeal raised in support of the appeals that the General Court was entitled to conclude, without considering the actions on the merits, that the appellants lacked standing to institute proceedings.

77 Consequently, the present ground of appeal in the alternative cannot be upheld.

78 Since none of the grounds of appeal is well founded, the appeals must be dismissed in their entirety.

79 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, 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.

80 Since the Commission has applied for costs and the appellants have been unsuccessful, the appellants must be ordered to bear their own costs and to pay those incurred by the Commission in the appeals.

2. Orders Grupa Azoty S.A., Azomureș SA and Lipasmata Kavalas LTD Ypokatastima Allodapis to bear their own costs and to pay those incurred by the European Commission, related to the appeal in Case C‑73/22 P;

3. Orders Advansa Manufacturing GmbH, Beaulieu International Group NV, Brilen SA,Cordenka GmbH & Co. KG, Dolan GmbH,Enka International GmbH & Co. KG,Glanzstoff Longlaville SAS,Infinited Fiber Company Oy,Kelheim Fibres GmbH,Nurel SA,PHP Fibers GmbH,Teijin Aramid BV, Thrace Nonwovens & Geosynthetics monoprosopi AVEE mi yfanton yfasmaton kai geosynthetikon proïontonS.A. and Trevira GmbH to bear their own costs and to pay those incurred by the Commission, related to the appeal in Case C‑77/22 P.

Court of Justice of the European Communities (including Court of First Instance Decisions)