Appeal brought on 22 February 2019 by Association européenne du charbon et du lignite (Euracoal) against the order of the General Court (Third Chamber) delivered on 13 December 2018 in Case T-739/17 Association européenne du charbon et du lignite (Euracoal) and Others v European Commission

(Case C-172/19 P)

(2019/C 164/28)

Language of the case: German

Parties

Appellant: Association européenne du charbon et du lignite (Euracoal) (represented by: W. Spieth and N. Hellermann, Rechtsanwälte)

Other parties to the proceedings: European Commission, Deutscher Braunkohlen-Industrie-Verein e.V., Lausitz Energie Kraftwerke AG, Mitteldeutsche Braunkohlengesellschaft mbH, eins energie in sachsen GmbH & Co. KG

Form of order sought

The appellant claims that the Court should:

1.

a) set aside the order of the General Court of the European Union of 13 December 2018 in Case T-739/17; b) declare the action admissible; and in the event that the Court of Justice concludes that it is appropriate for it to issue a decision, in accordance with the form of order retained in its entirety from the application of 7 November 2017, — annul Commission Implementing Decision (EU) 2017/1442 of 31 July 2017 establishing the best available techniques (BAT) conclusions under Directive 2010/75/EU of the European Parliament and of the Council on large combustion plants, (1) to the extent to which, by that decision, BAT associated emissions levels (BAT-AELs) were accepted and set for NOx emissions (Article 1, Section 2.1.3 of the Annex, Table 3) and mercury emissions (Article 1, Section 2.1.6 of the Annex, Table 7) which result from the combustion of coal and/or lignite; — in the alternative, annul Implementing Decision 2017/1442 in its entirety; and — order the European Commission to pay the costs of the proceedings; c) if and to the extent that the Court of Justice finds that it is not appropriate for it to issue a decision in respect of the form of order referred to in 1.b) above, refer the case back to the General Court of the European Union for a decision;

2.	order the European Commission to pay the costs of the appeal.

Grounds of appeal and main arguments

The appellant relies on the following two grounds of appeal.

First, the order of the General Court is based on a procedural error, which adversely affects interests of the appellant (the second situation of the second sentence of the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union), and also infringes certain general principles of EU law. In its order, the General Court failed to consider the appellant’s submission, which was relevant to the decision, in which it stated that its capacity to sue is derived from an infringement of the appellant’s procedural standing, which it had in the context of the relevant exchange of information regarding the development of the BAT conclusions, which were challenged in the action in question. Not only was the appellant an actual party to the procedure, but it also had a specific and defendable legal position, which guaranteed it a particular procedural standing. These grounds alone give the appellant the capacity to sue. The order of the General Court contains no examination, assessment or other such reasoning concerning the appellant’s submission in that regard. This constitutes an infringement of the obligation to state reasons under the first sentence of Article 36 in combination with the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union and Article 81 of the Rules of Procedure of the General Court. This substantiates the existence of a procedural error and, equally, an infringement of the general EU law principles of the right to effective legal protection and the right to a fair hearing.

Second, the order of the General Court also infringes EU law in the sense referred to in the third situation of the second sentence of the first paragraph of Article 58 of the Statute. By its order, the General Court wrongly dismisses the appellant’s action as inadmissible. The General Court misapplied EU law when it failed to find that the appellant’s personal status satisfied the conditions for the admissibility of an action in the form of a qualified interest as referred to in the fourth paragraph of Article 263 TFEU. Its qualified interest and the resulting legal standing flow from the disregard for its procedural standing, which it had in the context of the procedure for the development of the BAT conclusions, which formed the subject of the action. Not only was the appellant an actual party to that procedure, but it also had a specific and defendable legal position, which gave it a particular procedural standing. This therefore conferred on it a right of action, as it concerned the enforcement of its procedural rights. These procedural guarantees protecting the appellant were disregarded by the Commission when it developed the BAT conclusions, in particular in so far as it limited the appellant’s right to be heard and its right to be a party to a procedure and failed to comply with its obligation to evaluate. Consequently, the dismissal of the action as inadmissible is based on a misapplication of EU law.

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(1)  OJ 2017 L 212, p. 1.