ETS DIRECTIVE : COURT RULES ARCELOR'S ACTION FOR ANNULMENT INADMISSIBLE.

The EU court has dismissed Arcelor's action for annulment of certain aspects of the directive establishing the Emission Trading Scheme (ETS)(1) and its application for damages suffered as a result of the directive(2). The action lodged by the steelmaker was ruled inadmissible. In the decision handed down on 2 March, the court notes that a legal person, such as a company, may bring an action against Community acts which concern it directly and individually. Yet Arcelor is neither individually nor directly concerned by the ETS Directive, which applies in a general and abstract manner to all of the operators covered by its annex, including those in the pig iron or steel production sector. The directive is not capable of characterising the factual and legal situation of Arcelor in comparison with those of other operators.

Arcelor (Arcelor-Mittal since its merger with Mittal in 2006) operates in the pig iron and steel sector in Europe, where it has 17 installations (in France, Belgium, Spain and Germany). It applied to the court in January 2004 for annulment of certain provisions of the ETS Directive, arguing that the provisions violate its right of property and freedom to pursue an economic activity. The steel producer also invoked violation of the principle of equal treatment since the directive does not apply to other more polluting industries with which it competes. The firm also asked the court to order the Council and the European Parliament to compensate it for damages suffered as a result of adoption of the directive.

On the application for compensation, the court held that Arcelor failed to demonstrate that, with its adoption of the directive, the Community legislator committed a sufficiently serious breach of the right of property, the freedom to pursue an economic activity, the principle of proportionality, the principle of equal treatment, freedom of establishment or the principle of legal certainty to give rise to non-contractual liability on the part of the Community.

The tribunal pointed out that the Court of Justice had held, in December 2008, that the ETS...