JUDGMENT OF THE COURT (Sixth
Chamber)
25 March
2021 (*)
(Appeal –
Action for annulment and for damages –
Environment – 2030 climate and energy
package – Fourth paragraph
of Article 263 TFEU – Lack
of individual concern)
In Case
C‑565/19 P,
APPEAL
under Article 56 of the Statute
of the Court of Justice of the European Union, brought on 23 July 2019,
Armando
Carvalho, residing in Santa Comba Dão
(Portugal), and Others,
represented by G. Winter, Professor, H. Leith, Barrister, and by
R. Verheyen, Rechtsanwältin,
appellants,
the other parties to the proceedings being:
European Parliament, represented
by M. Peternel, C. Ionescu Dima and
A. Tamás, acting as Agents,
Council of the European Union, represented
by M. Moore and K. Michoel, acting as Agents,
defendants at first instance,
supported by:
European Commission, represented by A.C. Becker
and J.-F. Brakeland, acting
as Agents,
intervener in the appeal,
THE
COURT (Sixth Chamber),
composed of L. Bay Larsen, President of the Chamber, C. Toader
and N. Jääskinen (Rapporteur),
Judges,
Advocate General: G. Hogan,
Registrar:
A. Calot Escobar,
having
regard to the written
procedure,
having
decided, after hearing the Advocate
General, to proceed to judgment
without an Opinion,
gives
the following
Judgment
1 By
their appeal, Mr Armando
Carvalho and 36 other appellants,
whose names are set out in the annex
to the present judgment, seek the setting aside of the
order of the General Court of the European Union of
8 May 2019, Carvalho and Others v Parliament and Council (T‑330/18,
not published,
EU:T:2019:324; ‘the order under appeal’), by which
the General Court dismissed as
inadmissible their action seeking, first, the partial annulment of (i) Directive (EU) 2018/410 of the European Parliament and of the Council of 14 March 2018 amending
Directive 2003/87/EC to enhance cost-effective emission reductions and low-carbon investments, and Decision (EU) 2015/1814 (OJ 2018 L 76, p. 3), in particular Article 1 thereof, (ii) Regulation (EU)
2018/842 of the European Parliament
and of the Council of 30 May
2018 on binding annual greenhouse gas emission reductions by Member States from
2021 to 2030 contributing to climate
action to meet commitments under the Paris Agreement
and amending Regulation
(EU) No 525/2013 (OJ 2018 L 156, p. 26), in particular
Article 4(2) thereof
and Annex I thereto,
and (iii) Regulation (EU) 2018/841 of the European Parliament and of the Council of 30 May 2018 on
the inclusion of greenhouse
gas emissions and removals
from land use, land use change and forestry in the 2030 climate and energy framework, and amending
Regulation (EU) No 525/2013 and Decision No 529/2013/EU (OJ 2018 L 156,
p. 1), in particular Article 4
thereof (‘the acts at issue’ or ‘the legislative package’), and, second, compensation in the form of an injunction for the damage which the appellants claim to have suffered.
2 The
appellants operate in either
the agricultural sector, including reindeer husbandry, or the tourism sector. They are 36 individuals belonging to families
from various Member States
of the European Union, namely
Germany, France, Italy, Portugal and Romania, as well as
from the rest of the world, namely
Kenya and Fiji, as well as an association governed by Swedish law, which represents
young indigenous Samis.
The
Kyoto Protocol and the Paris Agreement
3 The
European Union ratified the
Kyoto Protocol to the United Nations Framework Convention on Climate Change (UNFCCC) by Council Decision 2002/358/EC of
25 April 2002 concerning the approval,
on behalf of the European
Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments thereunder
(OJ 2002 L 130, p. 1).
4 In
view of the expiry of the
second commitment period of the Kyoto Protocol in
2020, the Paris Agreement was adopted
by the Conference of the Parties to the UNFCCC in December
2015, aiming to limit the
global temperature increase to between
1.5 °C and 2 °C above pre-industrial
levels. In 2016 the European
Union ratified that
agreement by Council Decision
(EU) 2016/1841 of 5 October 2016 on the conclusion, on behalf of the European Union, of the Paris Agreement adopted
under the United Nations Framework Convention on Climate
Change (OJ 2016 L 282, p. 1).
5 The
Paris Agreement focuses on the concept of ‘nationally determined contributions’. Article 4(2)
thereof provides:
‘Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends
to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.’
6 The
European Union and its Member States have committed jointly to complying, by means of their nationally determined contributions, with a binding target of reducing greenhouse gas emissions within the European Union by at least 40% by 2030 in relation
to 1990 levels.
The
acts at issue
7 The
acts at issue were adopted by the European Union in order to comply
with the Paris Agreement as regards
contributions determined at national level.
8 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), as
amended by Directive 2018/410 (‘Directive 2003/87’),
the first act at issue, enhances the scheme for greenhouse gas emission allowance trading within the European Union for the period
from 2021 to 2030 by increasing the rate of annual allowance reductions from 1.74% to 2.2% from 2021 onwards.
9 The
first paragraph of Article 9
of Directive 2003/87, entitled ‘Union-wide quantity of allowances’, provides:
‘The
Union-wide quantity of allowances
issued each year starting in 2013 shall decrease in
a linear manner beginning
from the mid-point of the period
from 2008 to 2012. The quantity shall
decrease by a linear factor
of 1.74% compared to the average
annual total quantity of allowances issued by Member States in accordance with the Commission Decisions
on their national allocation
plans for the period from 2008 to 2012 …
Starting in 2021, the linear factor shall be 2.2%.’
10 Regulation 2018/841, the second act at
issue, sets binding
commitments for all Member
States so as to ensure that accounted emissions from land use are
offset in their entirety by
an equivalent removal of
CO2 from the atmosphere by means
of activities carried out in the land
use, land use change and forestry sector.
11 Article 4 of that regulation states:
‘For the
periods from 2021 to 2025 and from 2026 to 2030, taking into account the flexibilities provided for in Articles 12 and 13, each Member State shall ensure that emissions
do not exceed removals, calculated as the sum of total emissions and total removals on its territory in all of the land accounting categories referred to in Article 2 combined, as accounted
in accordance with this Regulation.’
12 Regulation 2018/842, the third
act at issue, lays down obligations for the Member States, in accordance with
Article 1 thereof,
with respect to their
minimum contributions, for the period
from 2021 to 2030, to fulfilling the Union’s target of reducing its greenhouse gas emissions by 30% below 2005 levels in the sectors covered by Article 2 of that regulation, and contributes to achieving the objectives of the Paris Agreement. That
regulation applies to emissions from economic sectors not falling
within the scope of Directive 2003/87 or Regulation 2018/841.
13 Article 4 of Regulation
2018/842, entitled ‘Annual emission levels for the period from 2021 to 2030’, is worded as follows:
‘1. Each Member State shall, in 2030, limit its greenhouse gas emissions at least
by the percentage set for that
Member State in Annex I
in relation to its greenhouse
gas emissions in 2005, determined
pursuant to paragraph 3
of this Article.
2. Subject to the flexibilities provided for in Articles 5,
6 and 7 of this Regulation,
to the adjustment pursuant
to Article 10(2) of this
Regulation and taking into account any deduction resulting from the application of Article 7 of Decision No 406/2009/EC [of the European
Parliament and of the Council
of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community’s greenhouse gas emission reduction commitments up to 2020 (OJ 2009 L 140,
p. 136)], each Member
State shall ensure that its greenhouse
gas emissions in each year between 2021 and 2029 do not exceed the limit defined by a linear trajectory, starting on the average of its greenhouse gas emissions during 2016, 2017 and 2018 determined
pursuant to paragraph 3
of this Article and ending in 2030 on the limit set
for that Member State in Annex I to this Regulation. The linear trajectory
of a Member State shall
start either at five-twelfths of the distance
from 2019 to 2020 or in 2020, whichever results in a lower
allocation for that Member State.
3. The
Commission shall adopt implementing acts setting out the annual
emission allocations for
the years from 2021 to 2030 in terms
of tonnes of CO2 equivalent
as specified in paragraphs 1 and 2 of this Article. For the purposes of those implementing acts, the
Commission shall carry out
a comprehensive review of the most
recent national inventory
data for the years 2005 and 2016 to 2018 submitted by Member States pursuant to Article 7 of Regulation (EU) No 525/2013 [of the European Parliament and of the Council of 21 May 2013 on a mechanism for monitoring and reporting greenhouse
gas emissions and for reporting other
information at national and Union level
relevant to climate change and repealing Decision No 280/2004/EC (OJ 2013 L 165,
p. 13)].
Those
implementing acts shall
indicate the value for the 2005 greenhouse
gas emissions of each Member State used to determine
the annual emission allocations specified in paragraphs 1 and 2.
4. Those implementing acts shall also specify,
based on the percentages notified by Member States under Article 6(3), the total quantities that may be taken into
account for a Member State’s
compliance under Article 9 between
2021 and 2030. If the sum of all
Member States’ total quantities were to exceed the collective total of 100 million, the total quantities for each Member State shall be reduced on a pro rata basis so that the collective total is not
exceeded.
…’
Procedure
before the General Court and the order under appeal
14 By
application lodged at the Registry of the General
Court on 23 May 2018, the appellants
brought an action seeking,
first, annulment of the acts at
issue and, second, compensation
in the form of an injunction
for the damage which the appellants claimed to have suffered.
15 In
their application, the appellants claimed that the General Court should:
– declare that the legislative
package regarding greenhouse
gas emissions is unlawful in so far as it permits the emission between 2021 and 2030 of
a quantity of greenhouse gases corresponding to 80% of
1990 levels in 2021, decreasing
to 60% of 1990 levels in 2030;
– annul the legislative package regarding
greenhouse gas emissions in
so far as it sets targets
to reduce greenhouse gas emissions
by 2030 by 40% compared to 1990 levels,
in particular Article 1
of Directive 2018/410, Article 4(2) of Regulation 2018/842 and Annex I
thereto, and Article 4
of Regulation 2018/841;
– order
the European Parliament and
the Council of the European
Union to adopt measures
under the legislative package regarding greenhouse gas emissions requiring a reduction in greenhouse gas emissions by 2030
by at least 50% to 60% compared to their 1990 levels, or by such higher level of reduction as the General Court shall deem appropriate;
– in
the alternative, in the event that the decision to annul the contested acts is adopted too late to allow the relevant provisions to be amended before 2021, order that the contested provisions of the
legislative package regarding greenhouse
gas emissions are to remain
in force until a date to be determined
by the General Court, by which time at the latest they
should have been amended by higher-ranking rules of law; and
– order
the Parliament and the Council
to pay the costs.
16 By
separate document lodged at the Registry of the General Court
on 16 October 2018, the Council
raised a plea of inadmissibility in relation to the action.
17 By
separate document lodged at the Registry of the General
Court on 20 October 2018, the Parliament also raised a plea of inadmissibility.
18 As a result, the processing of
the applications for leave
to intervene lodged by Climate Action Network Europe on 20 September 2018, WeMove Europe SCE
mbH on 20 September 2018 and Arbeitsgemeinschaft
Bäuerliche Landwirtschaft
on 24 September 2018 in support of the form of order sought by the appellants, and by the Commission on 4 October 2018 in support of the form
of order sought by the Parliament
and the Council, was suspended in accordance with Article 144(3) of the Rules of Procedure of the
General Court.
19 On
10 December 2018 the appellants
submitted their observations regarding the plea of inadmissibility raised by the Parliament and the Council.
20 By
the order under appeal, the General Court held, in accordance with Article 130
of its Rules of Procedure, that
both the claim for annulment
and the claim for damages submitted
by the appellants were inadmissible.
21 Regarding, on the one hand, the claim for annulment, the General Court held
that the appellants did not satisfy
any of the locus standi criteria laid down in the fourth paragraph of Article 263 TFEU.
22 First,
concerning the first scenario in which
a natural or legal person may have locus
standi under that provision, the General Court observed,
in paragraph 35 of the order under appeal, that the appellants were not the addressees
of the acts at issue. Next,
regarding the third
scenario, it found, in paragraphs 37 to 41 of the order under appeal, that the acts at issue had been
adopted on the basis of Article 192(1) TFEU in accordance
with the ordinary legislative procedure, with the result that the acts at issue could
not be regarded as regulatory acts for the purposes of the fourth paragraph of Article 263
TFEU. Lastly, concerning
the second scenario, the General Court held, in paragraphs 46 to 54 of the order under appeal, that the appellants were not individually
concerned for the purposes
of the fourth paragraph of Article 263 TFEU. In that regard, the General Court considered
that the fact that the effects of climate change may be different for one person than they
are for another does not mean that,
for that reason, there exists standing to bring an action against a measure of general application.
In its view, a different approach has the effect of rendering the requirements of the fourth paragraph of Article 263
TFEU meaningless and of creating locus
standi for all.
23 Regarding, on the other hand, the
claim for damages, the General Court considered, in essence, in paragraphs 67 to 70 of the order under appeal, that that claim sought, in reality, to obtain a result similar to the result of annulling the acts at issue and that,
consequently, it had to be declared inadmissible, like the appellants’ claim for annulment.
Forms
of order sought before the
Court of Justice
24 By
their appeal, the appellants
claim that the Court should:
– set
aside the order under appeal;
– declare the actions at first instance admissible;
– refer the case back to the General Court so that it may
give a ruling on the merits
of the claim for annulment;
– refer the case back to the General Court so that it may
give a ruling on the merits
of the claim invoking the non-contractual
liability of the Union; and
– order
the Parliament and the Council
to pay the costs of the present
appeal and the costs of the proceedings before the General Court.
25 The
Parliament and the Council,
supported by the Commission, contend
that the Court should:
– dismiss the appeal; and
– order
the appellants to pay the
costs.
The
appeal
26 In
support of their appeal, the appellants
rely on four grounds of
appeal, alleging that the
General Court erred (i) in finding
that the appellants were not individually
concerned; (ii) on account of the failure
to adapt the settled case-law on locus standi in
order to guarantee the legal
protection of fundamental rights; (iii) in finding that the association Sáminuorra did not have locus standi; and (iv) in rejecting
their claim for damages.
The first
ground of appeal, alleging that
the General Court erred in law
in finding that the appellants were not individually concerned
Arguments of the parties
27 By
their first ground of appeal, the appellants
submit that the General
Court erred in law by failing to take account of the fact
that the appellants were concerned, from a factual and legal point of view, in distinct ways.
28 That ground is divided into two
parts.
29 By
the first part, the appellants claim that the acts at issue affect each
of them ‘by reason of certain attributes which are peculiar to them’ and by virtue of these factors ‘[distinguish] them individually’. Each of the appellant families, and even each member of those families, has different characteristics that are peculiar to them. Some families are affected
by droughts, others by flooding, still others by melting snow or heatwaves caused or intensified by climate change. Some of those families
are farmers or forest owners,
others own businesses in
the tourism sector, still others are dedicated to animal husbandry. Ultimately, they are all individuals
suffering in distinct ways as a result of climate change.
30 According to the appellants, the
General Court did not, in
the order under appeal, make any reference
to the evidence showing that the appellants were affected in different ways by climate change. It merely
ruled, in paragraph 50
of that order, that the fact that persons
are affected differently does not confer
standing to bring an action to challenge a measure of general application.
31 By
the second part of the first ground of appeal, the appellants
claim that, in the light of recent
case-law developments regarding locus standi,
the interference of the acts at
issue with fundamental rights gives rise to individual concern, for the purposes of the fourth paragraph of Article 263
TFEU, if the right concerned is a personal right. The fact that there may
be several rightholders cannot be of any significance, because the individual nature of the concern arises from the nature of the right
as a personal and individual
right.
32 According to the appellants, the
General Court erred, in paragraph 49
of the order under appeal, in so far as it neglected the importance of the legal effects of the acts at issue on each specific
appellant, focusing exclusively on the factual consequences. The appellants submit that, if
the General Court had taken
account of the appellants’ legal
position, it would have focused on the fact that each
of them holds a fundamental right, which is individually
affected by the acts at issue.
33 In
that regard, the appellants emphasise that both the Charter of Fundamental Rights of the European Union (‘the Charter’) and the case-law of the Court of Justice clearly
state that the fundamental rights concerned in the present case confer individual rights on each appellant. In particular, the rights concerned are the right to
equality and non-discrimination, provided
for in Article 21 of the Charter, the right to pursue an occupation, set out in Article 15(1)
of the Charter, the right to property,
within the meaning of Article 17(1) of the Charter, and the rights relating to children under Article 24 of
the Charter.
34 The
Parliament and the Council,
supported by the Commission, dispute the appellants’ arguments.
Findings of the Court
35 In
the first place, as regards
the first part of the first ground of appeal, the Council
disputes the appellants’ claims and contends that those claims,
which fall within the scope of the factual assessment carried out by the
General Court, cannot be contested
in the context of the present
appeal.
36 In
that regard, it should be borne
in mind that it is clear from Article 256
TFEU and the first paragraph of Article 58
of the Statute of the Court of Justice of the European Union that the General
Court has exclusive jurisdiction, first, to find the facts, except where
the substantive inaccuracy
of its findings is apparent from the documents submitted to it and, second, to assess those facts. When
the General Court has found
or assessed the facts, the
Court of Justice has jurisdiction
under Article 256 TFEU to review the legal characterisation of those facts by the General Court
and the legal conclusions it has drawn
from them. The Court of Justice thus
has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Save where the clear sense of the evidence has been distorted,
that appraisal does not therefore
constitute a point of law which is subject
as such to review by the
Court of Justice (see, in particular,
judgment of 19 March 2009, Archer
Daniels Midland v Commission, C‑510/06 P,
EU:C:2009:166, paragraph 105).
37 In
the present case, it should be noted that, in order to find that the appellants were not individually
concerned by the acts at issue, the General Court held, in
paragraphs 49 and 50 of the order under appeal, as follows:
‘49 The applicants have not established that the contested provisions of the legislative package infringed
their fundamental rights and distinguished them individually from all other natural
or legal persons concerned by those provisions just as in the case of
the addressee.
50 It is true
that every individual is likely
to be affected one way or another
by climate change, that issue being
recognised by the European
Union and the Member States who
have, as a result, committed to reducing emissions. However, the fact that the effects of climate change may be different for one person than they
are for another does not mean that,
for that reason, there exists standing to bring an action against a measure of general application. As can be seen from the case-law cited in paragraph 48
above, a different approach would have the result of rendering the requirements of the fourth paragraph of Article 263
TFEU meaningless and of creating locus
standi for all without the criterion of individual concern within the meaning of the case-law resulting from the judgment of 15 July
1963, Plaumann v Commission (25/62,
EU:C:1963:17) [(“the judgment in Plaumann”)], being fulfilled.’
38 It is apparent
from paragraphs 49 and 50 of the order under
appeal that the General Court provided
a legal characterisation of
the facts in order to determine whether
the appellants were individually concerned for the purposes of the fourth paragraph of Article 263
TFEU, considering that the circumstances alleged by them were not
capable of establishing that the acts at issue distinguished them individually, just as in the case of the addressee
of those acts. The calling
in question of such a legal characterisation of the facts is therefore
a point of law which may, as such,
be invoked in the context
of the present appeal.
39 It should, however,
be noted that, contrary to what the appellants seek to argue in the first part of the present
ground of appeal, the General Court took account, in paragraphs 49 and 50 of the order under appeal, of the
arguments which, in their view, set out the numerous and specific ways in which they were
concerned from a factual
point of view.
40 The
General Court held, in essence,
in paragraph 50 of the order under appeal, that the fact that
the effects of climate change may be different
for one person than they are for another and that they depend
on the personal circumstances specific
to each person does not mean
that the acts at issue distinguish each of the appellants individually. In other words, the
fact that the appellants, owing to the alleged circumstances, are affected differently by climate change is not in itself
sufficient to establish the
standing of those appellants
to bring an action for annulment
of a measure of general application
such as the acts at issue.
41 Accordingly, the General Court held,
in paragraph 50 of the order under appeal, that the appellants’ interpretation of the circumstances
alleged by them as establishing that they were
individually concerned would render the requirements of
the fourth paragraph of Article 263 TFEU meaningless
and would create locus standi for
all without the criterion of individual concern referred to in the judgment in Plaumann being fulfilled.
42 Consequently, the appellants cannot claim that the General
Court did not take into account, in the order under appeal, the characteristics specific to them in order to determine whether
they were individually concerned.
43 Moreover, the appellants’ argument that the General Court
made no reference, in the order under appeal, to the evidence showing that the appellants were affected in different ways by climate change is, in the light of the foregoing, ineffective.
44 The
first part of the first ground of appeal must therefore
be rejected.
45 In
the second place, as regards
the appellants’ argument, raised in the context of the
second part of the first ground of appeal, that the interference of the acts at issue with their fundamental rights gives rise to individual concern for the purposes of the fourth paragraph of Article 263 TFEU, it must be
stated that the appellants have misinterpreted the criterion of individual concern set out in that provision, as interpreted by the case-law of the Court.
46 According to settled case-law, which has
not been altered by the Treaty of Lisbon, natural or legal persons satisfy
the condition of individual
concern only if the contested act affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person addressed (judgment of 3 October 2013, Inuit Tapiriit
Kanatami and Others v Parliament and Council,
C‑583/11 P, EU:C:2013:625, paragraphs 71
and 72 and the case-law cited).
47 In
that regard, as is noted
by the Parliament, the appellants’
reasoning, in addition to its generic wording,
leads to the conclusion that
there is locus standi for any applicant, since a fundamental right is always likely
to be concerned in one way or another
by measures of general application
such as those
contested in the present
case.
48 As was recalled
by the General Court in paragraph 48 of the
order under appeal, the claim that the acts at issue infringe
fundamental rights is not sufficient
in itself to establish that the action brought by an individual is admissible,
without running the risk of rendering the requirements of the fourth paragraph of Article 263
TFEU meaningless (see, to that effect, orders
of 10 May 2001, FNAB and Others v Council, C‑345/00 P, EU:C:2001:270, paragraph 40, and of 14 January
2021, Sabo and Others v Parliament and Council,
C‑297/20 P, not published,
EU:C:2021:24, paragraph 29 and the case-law cited).
49 Since, as is
apparent from paragraph 46
of the order under appeal, the appellants merely invoked, before the General Court, an infringement
of their fundamental rights, inferring individual concern from that infringement, on the ground that the effects of climate change and, accordingly, the infringement of fundamental rights are unique to and different for each individual, it cannot be held
that the acts at issue affect the appellants by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons,
and by virtue of these factors distinguish them individually just as in the case of the person addressed.
50 Therefore, the General Court was fully entitled to hold, in paragraph 49 of the
order under appeal, that the appellants
had not established
that the contested provisions of the acts at issue distinguished them individually from all other natural
or legal persons concerned by those provisions just as in the case of
the addressee.
51 The
second part of the first ground of appeal must therefore
be rejected.
52 Accordingly, the first ground of appeal must be rejected in its entirety.
The
second ground of appeal, alleging that
the General Court erred on account of the failure to adapt the settled case-law on locus standi in order to guarantee
the legal protection of fundamental rights
Arguments of the parties
53 By
their second ground of appeal, the appellants claim that, in the
event that the Court of Justice is
not convinced by the arguments put forward in their first ground of appeal, the test derived
from the judgment in Plaumann for
establishing the existence
of ‘individual concern’ should be adapted in order to ensure adequate judicial protection against serious infringements of fundamental rights. The appellants put forward six arguments
in support of that claim.
54 In
the first place, the appellants remark
that the test derived from
the judgment in Plaumann is not specified
in the wording of the fourth
paragraph of Article 263
TFEU. That wording simply states that
a person may institute proceedings where the act ‘is of direct and individual concern to them’. That phrasing
provides an opportunity to
alter the test established by case-law provided such
alteration is well founded. In addition, according to the appellants, that same test has already
been adapted depending on the specific circumstances of the individual
case, which shows that the
text of the FEU Treaty may allow for a wide range of interpretations.
The Court has relaxed the
test derived from the judgment
in Plaumann where
it deemed it appropriate to do so in order to ensure
effective judicial protection.
55 In
the second place, the appellants maintain
that the condition relating to individual concern must be interpreted in accordance with the constitutional
traditions of the Member
States, pursuant to Article 6(3)
TEU. In that regard, the appellants emphasise that none of the Member States requires an applicant to prove that it is
distinguished individually,
in the narrow sense of the
test derived from the judgment
in Plaumann. This
is true both
for courts which adopt an ‘administrative’ approach to judicial protection, and for courts which apply a ‘constitutional’ approach. According to the appellants, the wording established in the judgment in Plaumann,
as applied to their action for annulment, disregards the obligation to develop EU constitutional principles on the basis of the constitutional principles of the Member States.
56 In
the third place, the appellants
submit that the right to bring an action before the Courts of the European Union must be given a teleological interpretation in
order to take account of how seriously
an applicant is concerned. The appellants maintain that it
is paradoxical, or even illogical, to find that, where
a failure by the European
Union to fulfil its legal obligations has far-reaching consequences, no individual can demonstrate individual concern.
57 In
the fourth place, the appellants
claim that the fourth paragraph of Article 263
TFEU must in principle allow
for direct actions against
legislative acts. Those acts are, by their very nature, likely to concern a large number of persons, which means that
it is virtually
impossible to satisfy the
test used in the judgment
in Plaumann. However,
the fourth paragraph of Article 263 TFEU provides
the possibility of direct
access to the Courts of the European
Union in order to establish the compatibility
of legislative acts with higher-ranking rules of law.
58 In
that regard, the appellants recall that the issue of direct access to courts in order to challenge measures
of general application has already been addressed
by Advocate General Jacobs in his
Opinion in Unión de Pequeños Agricultores v Council (C‑50/00 P, EU:C:2002:197),
and by the General Court in its judgment
of 3 May 2002, Jégo-Quéré v Commission (T‑177/01,
EU:T:2002:112). In connection with the appeal against that judgment,
Advocate General Jacobs proposed
that individual concern should be regarded as serious
and direct concern to individuals, thereby eliminating the concept of ‘singularity’.
That step was successful in so far as, in the fourth paragraph of Article 263 TFEU, that requirement was entirely removed for regulatory acts not entailing implementing measures. The appellants invite the Court of Justice to adapt
the definition of ‘individual
concern’ in order to take account of the particular nature of constitutional
actions against legislative acts of the European Union.
59 In
the fifth place, the appellants
submit that the test used in the judgment in Plaumann must be amended
in order to meet the legal requirement of effective judicial protection. In that regard, they
observe that, in the order
under appeal, the General Court held, with regard to Article 47 of the
Charter, that that article ‘does not
require that an individual should have an unconditional entitlement to bring an action
for annulment of such a
legislative act of the Union directly before the Courts of the European Union’. The General Court also
held that an effective review of the legality
of the acts at issue could be obtained by means of the interlocutory
procedure provided for in Article 277
TFEU or a reference for a preliminary
ruling under Article 267 TFEU.
60 However, in the present case, neither of those remedies is legally
applicable and, therefore,
the General Court erred in law.
In the circumstances of the present
case and in view of the breach
of legal standards complained
of by the appellants, proceedings
against the implementing
acts under Article 277 TFEU or proceedings before the national courts, with the possibility to request a reference for a preliminary ruling pursuant to Article 267 TFEU, would not afford effective
judicial protection.
61 First,
as regards the implementing acts, the appellants
remark in particular that the Commission is not empowered to adopt implementing acts that would reduce the overall level of emissions into the European Union below the level set by the
legislative package regarding greenhouse
gas emissions.
62 Secondly, as regards
the possibility of bringing
proceedings before the
national courts, the appellants
submit, in essence, that proceedings before a national court or tribunal
are not truly effective. The appellants
indicate that a number of factors make it structurally impossible to obtain an effective remedy through the national courts, having regard, in particular, first, to
the inadmissibility of a request
for a preliminary ruling concerning
the validity of the legislative package regarding greenhouse gas emissions, secondly, to the irrational imposition of the obligation to bring proceedings in all the Member States and, third, to the fact that no adequate
national remedies are available.
63 In
the sixth place, the appellants
submit that, contrary to what the General
Court held in paragraph 50
of the order under appeal, the amendment of the criterion of individual concern referred to in the case-law derived from the judgment in Plaumann may make it possible
both to avoid creating locus standi for
all and to create an effective
filter for actions.
64 According to the appellants, where it is
impossible to gain access to an effective
and adequate remedy through the national courts
and/or a procedure concerning the implementing
measures, the condition of individual concern must be regarded as satisfied
if the contested
legislative act significantly encroaches
on a personal fundamental right
or encroaches on that right to an extent likely to undermine the essence of the right.
65 The
appellants maintain that a criterion of that nature provides a mechanism that is sufficient to filter potential actions at an early stage. Furthermore, that criterion has points in common with comparable concepts applied by the courts of the Member States in accordance with their constitutional traditions. Lastly, according to the appellants, the criterion of seriousness could be specified by case-law reacting to different kinds of fundamental rights and factual constellations.
66 The
Parliament and the Council,
supported by the Commission, dispute those arguments.
Findings of the Court
67 As a preliminary point, it should be borne
in mind that the European
Union is a union based on
the rule of law in which
the acts of its institutions are subject
to review of their compatibility
with, in particular, the Treaties,
the general principles of law
and fundamental rights (judgment of 3 October
2013, Inuit Tapiriit Kanatami
and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 91).
68 To
that end, the FEU Treaty has established a complete system
of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions, and has entrusted such
review to the Courts of the European
Union (judgment of 25 July
2002, Unión de Pequeños
Agricultores v Council,
C‑50/00 P, EU:C:2002:462, paragraph 40).
69 According to settled case-law, the Courts of the European Union may not, without going
beyond their jurisdiction, interpret the conditions under which an individual may institute proceedings against an act of the
Union in a way which has
the effect of setting aside
those conditions, which are expressly laid down in the FEU Treaty, even in the light of the principle
of effective judicial protection (see, to that effect, judgment
of 1 April 2004, Commission v Jégo-Quéré,
C‑263/02 P, EU:C:2004:210, paragraph 36).
70 It follows that, even if the appellants
are requesting that the judgment in Plaumann be
adapted so as to enable the acts at issue to be contested in the present case, such an adaptation must be rejected inasmuch as it
is contrary to the provisions laid down in the FEU Treaty regarding the admissibility of actions for annulment,
such as that
set out in the fourth paragraph
of Article 263 TFEU.
71 Under
that provision, any 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.
72 In
that regard, the General
Court correctly held, in paragraph 35 of the order under appeal, that the acts at issue do not identify
the appellants as being the addressees of those acts and that, consequently, the first scenario in which
a natural or legal person has standing to bring proceedings under the fourth paragraph of Article 263 TFEU had to be excluded.
73 Next,
regarding the second scenario provided
for in that provision, that is to say,
that proceedings may be instituted on condition that the act is of direct and individual concern to the natural or legal person instituting those proceedings, the General
Court was fully entitled to consider, as is apparent
from paragraph 50 of the present
judgment, that the appellants had not established that the contested provisions of the acts at issue were such
as to distinguish them individually just as in the case of the addressee. Since the conditions of direct concern and individual concern are cumulative
(judgment of 3 October
2013, Inuit Tapiriit Kanatami
and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 76), the General Court did
not err in considering that the appellants were not covered by the second
scenario provided for in the fourth
paragraph of Article 263
TFEU for bringing an action before
the General Court.
74 Lastly, the General Court rightly
held that the acts at issue, having
been adopted on the basis of Article 192(1)
TFEU, are not regulatory
acts covered by the third
scenario provided for in the fourth
paragraph of Article 263
TFEU.
75 In
the light of the foregoing, the General Court did not err
in law in considering that the appellants were not covered
by any of the three scenarios provided for in the fourth paragraph of Article 263 TFEU allowing them to bring an action before the General Court.
76 Consequently, as is apparent from the case-law cited in paragraph 69
of the present judgment,
the appellants cannot ask the Court of Justice to set aside
such conditions, which are expressly laid down in the FEU Treaty, and,
in particular, to adapt the
criterion of individual concern as defined
by the judgment in Plaumann,
in order that they may have access to an effective remedy.
77 In
that regard, it should be borne
in mind, as the General Court did
in paragraph 52 of the order under appeal, that the protection conferred by Article 47 of
the Charter does not require that an individual should have an unconditional entitlement to bring an action
for annulment of such a
legislative act of the Union directly before the Courts of the European Union (see, to that effect, judgment
of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council,
C‑583/11 P, EU:C:2013:625, paragraph 105).
78 Although the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted
in the light of the fundamental right
to effective judicial protection, such an interpretation cannot have the effect of setting aside the conditions expressly laid down in that Treaty (see,
to that effect, judgments of 25 July
2002, Unión de Pequeños
Agricultores v Council,
C‑50/00 P, EU:C:2002:462, paragraph 44,
and of 1 April 2004, Commission v Jégo-Quéré, C‑263/02 P, EU:C:2004:210, paragraph 36).
79 It follows that the appellants’ arguments seeking to have the criterion of individual concern extended cannot, in any event, succeed.
80 In
the light of the foregoing considerations,
the second ground of appeal must therefore be rejected.
The third ground of appeal, alleging that the General Court erred in finding that the association Sáminuorra did not have locus
standi
Arguments of the parties
81 By
the third ground of appeal, the association
Sáminuorra claims that the General Court erred in law by failing to take into account the evidence demonstrating that that association was individually concerned. According to that appellant, the General Court
held, in a single sentence, in paragraph 51 of
the order under appeal, that it
had not demonstrated
that it satisfied
the conditions for admissibility
of an action for annulment. The General Court thus distorted the evidence submitted by that association, in particular in order to demonstrate,
in accordance with settled
case-law, that it represented the interests of its members, who were
themselves entitled to bring proceedings.
82 Furthermore, the association Sáminuorra submits that the General Court erred in law by failing to take account of
another type of action that may be brought
by an association, namely
the ‘action of a collective defending
a collective good’. The association
Sáminuorra represents a whole that is
more than the sum of the individual
interests of its members. The common good represented
by that association is the right of the Sami people
to use public and private land for their reindeer herds, in accordance with the Swedish Law of 1971 on Reindeer Husbandry, as amended in 1993.
83 In
that context, the association Sáminuorra remarks that individual
concern should, in the present case, be defined as being the concern
of an identifiable collective.
Such an interpretation falls within the scope of the European Union’s obligations as defined in the United Nations Declaration
on the Rights of Indigenous
Peoples, adopted by the United Nations General
Assembly on 13 September 2007, as well as
in the Convention on Biological Diversity
(CBD), signed in Rio de Janeiro on 5 June 1992, which is also
binding on the European
Union.
84 The
Parliament and the Council,
supported by the Commission, dispute those arguments.
Findings of the Court
85 As regards the association Sáminuorra, the
General Court found, in paragraph 51
of the order under appeal, as follows:
‘51 So far as concerns the association Sáminuorra, it should be pointed
out, in the first place, that, like the other applicants and for the same reason, that
applicant has not shown that
it was individually
concerned. In the second place, it
is settled case-law that actions for annulment brought by associations have been held to be admissible in three types of situation: firstly, where a legal provision
expressly grants a series of procedural powers to
trade associations; secondly,
where the association represents the interests of its members, who
would themselves be entitled to bring proceedings; and, thirdly, where the association is distinguished individually because its own interests
as an association are affected, in particular because its negotiating
position has been affected by the act in respect of
which annulment is sought (see
order of 23 November 1999, Unión
de Pequeños Agricultores v Council, T‑173/98, EU:T:1999:296, paragraph 47 and the case-law
cited). In the present
case, the association Sáminuorra
has not shown
that it satisfied
one of those conditions.’
86 It is apparent
from the preceding paragraph
of the present judgment that the General Court stated in
the order under appeal that, first, for the same reasons as
those applicable to the other appellants – natural persons – that association could not be regarded
as being individually concerned. In the
light of the findings made in connection with the
first and second grounds of appeal, in particular in paragraphs 49 and 50 of the present
judgment, it cannot be held that the General Court erred in
making those findings.
87 Secondly, the General Court held that the association Sáminuorra had not established that it was
covered, as an association, by one of the three conditions under which case-law allows associations
to bring an action for annulment.
88 In
that regard, the General
Court cannot be said to have distorted the facts in its assessment
of the association Sáminuorra
as regards, in particular, the second condition.
89 Indeed, in so far as the appellants, as natural persons, were considered not to be individually concerned for the purposes of the
fourth paragraph of Article 263 TFEU, the same consideration applies to the members of that association. Those members cannot therefore claim that they possess attributes
which distinguish them individually from the other potential addressees of the acts at issue.
90 Concerning the first condition, it should be borne
in mind that associations have a right to bring proceedings against an act of the Union where
the provisions of EU law specifically recognise those associations as having procedural
rights (see, to that effect, judgment
of 4 October 1983, Fediol v Commission,
191/82, EU:C:1983:259, paragraph 28). However, the association Sáminuorra has not claimed that
such provisions exist in its favour.
91 As regards the argument that the General Court should have recognised
the existence of another
situation in which associations
would be entitled to bring proceedings, namely ‘the action of a collective
defending a collective
good’, that argument was not put forward
at first instance and must therefore, pursuant to Article 170(1) of the Rules of Procedure of the Court
of Justice, be rejected as inadmissible in the context of
the present appeal.
92 To
allow the appellants to raise for the first time before
the Court of Justice arguments which
they have not raised before
the General Court would be to authorise
them to bring before the Court of Justice, whose
jurisdiction in appeals is
limited, a case of wider ambit
than that which came before
the General Court. In an appeal, the jurisdiction of
the Court of Justice is thus
confined to review of the findings
of law on the pleas argued before the lower court (see, to that effect, judgment
of 17 June 2010, Lafarge v Commission, C‑413/08 P,
EU:C:2010:346, paragraph 52).
93 As regards the third condition, the association Sáminuorra has not claimed
to satisfy it.
94 It follows from the foregoing that the General Court did not err in concluding
that the association Sáminuorra could not be regarded as being individually
concerned by the acts at issue under the fourth paragraph of Article 263
TFEU.
95 The
third ground of appeal must therefore
be rejected as being in part unfounded and in
part inadmissible.
The fourth ground of appeal, alleging
that the General Court erred
in rejecting the appellants’
claim for damages
Arguments of the parties
96 The
appellants claim that the
General Court wrongly concluded
that the non-contractual
liability of the Union was excluded
in so far as the appellants
did not have
standing to bring an action for annulment.
There are fundamental differences between the measure requested in the claim
for annulment and that requested in the claim invoking
the non-contractual liability of the Union, which were not
addressed by the General Court in the order under
appeal.
97 First,
the General Court’s approach
is contrary to the principle that actions for annulment based on the non-contractual liability of the Union are autonomous.
It would also be contrary to its own practice,
as the General Court has repeatedly examined the validity of legal acts as part of the preconditions for
non-contractual liability without
regard to whether the act had been the subject
of annulment proceedings or
not.
98 Secondly, contrary to what the General Court held in
the order under appeal, the alleged illegality was not the same in the two claims. On the one hand, in
the claim for annulment, the appellants
argued that the acts at issue which
make up the legislative package regarding
greenhouse gas emissions were vitiated by errors of law, having regard to higher-ranking rules of law. On
the other hand, the claim invoking
the non-contractual liability of the Union is based on a broader
breach of higher-ranking
rules of law, which began in 1992. That breach is a continuous
one. The European Union’s failure to adopt adequate emission reductions in the legislative package regarding
greenhouse gas emissions is only one aspect
of that continuous breach.
99 Thirdly, the appellants emphasise that, contrary to the reasoning employed by the General Court in the order under appeal,
the two claims in question did not
seek to obtain the same result, namely
the replacement of the acts at
issue which make up the legislative package in question
with new measures that will have to achieve
a greater reduction in greenhouse gas emissions than is laid
down currently. In their
claim invoking the non-contractual
liability of the Union, the appellants requested measures targeting the
legislative package regarding greenhouse
gas emissions, whereas the basis underlying the liability of
the Union is much broader. That liability is based on a continuous
breach of higher-ranking
rules of law which began in 1992.
100 The Parliament and the Council, supported by the Commission, dispute those
arguments.
Findings of the Court
101 As was recalled
by the General Court in paragraphs 65 and 66 of
the order under appeal, according to settled case-law, the action for damages under the second paragraph
of Article 340 TFEU was
introduced as an autonomous form of action, with a
particular purpose to fulfil within the system of
actions and subject to conditions
on its use dictated by its specific purpose,
and hence a declaration of inadmissibility of the application
for annulment does not automatically render the
action for damages inadmissible
(judgment of 5 September
2019, European Union v Guardian
Europe and Guardian Europe v European
Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 49 and the case-law
cited).
102 However, although a party may take action by means of a
claim for compensation without
being obliged by any provision of law to seek the annulment of the illegal measure which causes
him damage, he may not in that
way circumvent the inadmissibility
of an application which concerns the same instance of illegality and which has the same
financial end in view (judgment of 5 September
2019, European Union v Guardian
Europe and Guardian Europe v European
Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 50 and the case-law
cited).
103 Thus, an action for damages must
be declared inadmissible where it is
actually aimed at securing withdrawal
of an individual decision which has become
final and it would, if upheld,
have the effect of nullifying the legal effects of that decision. That is the case if the applicant seeks, by means of a claim for damages, to obtain the same result as he would
have obtained had he been successful
in an action for annulment which
he failed to commence in
due time (judgment of 5 September
2019, European Union v Guardian
Europe and Guardian Europe v European
Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 51 and the case-law
cited).
104 In the present case, in paragraph 67
of the order under appeal, the General Court makes the following finding:
‘In that regard, it
should be pointed out that the claim seeking annulment of the legislative package and the injunction requested in
connection with the action for damages are almost identical and concern the same alleged unlawfulness. In the
action for annulment, the applicants
have argued that the target set by the three contested acts, namely a 40% reduction in emissions, is manifestly inadequate,
which is why that target should be annulled and reviewed. In the action for damages,
they seek, instead of pecuniary damages for their alleged individual losses, compensation in the form of an injunction ordering the Union to adopt measures to put an end to its unlawful and harmful conduct. The applicants therefore request that the Parliament and the Council be ordered to adopt measures under the
legislative package requiring a reduction
in greenhouse gas emissions
by 2030 by at least 50% to
60% compared to 1990 levels.’
105 That finding by the General Court
cannot be challenged. The
action, taken as a whole, shows that the claim for compensation, which is formulated as
an injunction, is intended not to obtain damages for harm attributable to an unlawful act or an omission, but to amend the acts at issue. Thus,
as the General Court found
in paragraph 69 of the order under appeal, both by their claim for annulment and by their request for an injunction, the appellants seek to obtain the same result, namely the replacement of the acts at issue with new measures that are more severe than those currently laid down in terms of reducing greenhouse gas emissions.
106 The
General Court was therefore
fully entitled to find, in paragraph 70 of the
order under appeal, that, since
the appellants did not have standing to bring proceedings to request partial annulment of the legislative package, their
claim for compensation, which
in reality seeks to achieve
the same result, must also be declared inadmissible.
107 The fourth ground of appeal must therefore
be rejected, and the appeal must be dismissed in its entirety.
Costs
108 In accordance with 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.
109 Under Article 138(1) of those
rules, applicable to appeal proceedings
by virtue of Article 184(1)
thereof, the unsuccessful
party must be ordered to pay
the costs if they have been applied
for in the successful party’s
pleadings.
110 Since the Parliament and the Council have applied
for costs and the appellants have
been unsuccessful, the appellants must be ordered to pay the costs.
111 In accordance with Article 140(1)
of the Rules of Procedure of the Court of Justice, applicable
to appeal proceedings by virtue
of Article 184(1) thereof,
the Commission, which has intervened in the proceedings,
must bear its own costs.
On those grounds, the Court (Sixth Chamber) hereby:
1. Dismisses the appeal;
2. Orders Mr Armando Carvalho
and 36 other appellants whose names are set out in the annex
to the present judgment to
bear their own costs and to
pay those incurred by the European Parliament and the Council of the
European Union;
3. Orders the European Commission to
bear its own costs.
|
Bay Larsen |
Toader |
Jääskinen |
Delivered in open court in Luxembourg on 25 March 2021.
|
A. Calot Escobar |
|
L. Bay Larsen |
|
Registrar |
|
President of the Sixth Chamber |
Annex
List of appellants
Armando
Carvalho, residing in Santa Comba Dão (Portugal),
Diogo
Carvalho, residing in Santa Comba Dão,
Ildebrando
Conceição, residing in Tomar
(Portugal),
Alfredo
Sendim, residing in Foros de Vale de Figueira (Portugal),
Joaquim
Caxeiro, residing in Foros de Vale de Figueira,
Renaud Feschet, residing
in Grignan (France),
Guylaine Feschet, residing
in Grignan,
Gabriel
Feschet, residing in Grignan,
Maurice
Feschet, residing in Grignan,
Geneviève
Gassin, residing in Grignan,
Roba Waku Guya, residing
in Marsabit County (Kenya),
Fadhe Hussein Tache, residing
in Marsabit County,
Sado Guyo, residing in Marsabit County,
Issa Guyo, residing in Marsabit
County,
Jibril
Guyo, residing in Marsabit
County,
Adanoor Guyo, residing in Marsabit County,
Mohammed
Guyo, residing in Marsabit
County,
Petru Vlad, residing in Cugir (Romania),
Ana Tricu, residing in Cugir,
Petru Arin Vlad, residing
in Cugir,
Maria
Ioana Vlad, residing in Cugir,
Andrei
Nicolae Vlad, residing in Cugir,
Giorgio
Davide Elter, residing in Cogne (Italy),
Sara Burland, residing in Cogne,
Soulail Elter, residing
in Cogne,
Alice
Elter, residing in Cogne,
Rosa Elter, residing in Cogne,
Maria
Elter, residing in Cogne,
Maike Recktenwald, residing in Langeoog
(Germany),
Michael
Recktenwald, residing in Langeoog,
Lueke Recktenwald, residing
in Langeoog,
Petero Qaloibau, residing
in Vanua Levu (Fiji),
Melania
Cironiceva, residing in Vanua Levu,
Katarina
Dimoto, residing in Vanua Levu,
Petero Jnr Qaloibau, residing
in Vanua Levu,
Elisabeta Tokalau, residing
in Vanua Levu,
Sáminuorra, established in Jokkmokk (Sweden).
* Language
of the case: English.