Judgment of the General Court Second Chamber, Extended Composition, 7 September 2022, BNetzA v ACER, T-631/19
| Date | 07 September 2022 |
| Year | 2022 |
59
positive or negative obligations by a Member State is liable to hinder the exercise of rights implicitly
conferred on individuals by the provisions in question and thus to alter the legal situation which those
provisions seek to establish for them. That is the reason why the full effectiveness of those rules and
the protection of the rights that they confer require that individuals have the possibility of obtaining
redress, irrespective of whether the provisions in question have direct effect, the quality of direct
effect being neither necessary nor sufficient in itself for that first condition to be satisfied.
In the present case, Article 13(1) and Article 23(1) of Directive 2008/50 on ambient air quality, like the
analogous provisions of the preceding directives, oblige Member States, in essence, first, to ensure
that the levels of, inter alia, PM10 and NO2 do not exceed, in their respective territories and with
effect from certain dates, the limit values set by those directives and, second, where those limit values
are nonetheless exceeded, an obligation to provide for appropriate measures to remedy those
exceedances, inter alia by means of air quality plans. It follows that those provisions lay down
sufficiently clear and precise obligations as to the result to be achieved by Member States. However,
those obligations pursue a general objective of protecting human health and the environment as a
whole and it cannot be inferred that they implicitly confer rights on individuals, the breach of which
would be capable of giving rise to a Member State’s liability for loss and damage caused to them.
Therefore, the first of the three conditions, which are cumulative, for State liability to be incurred is
not satisfied.
That finding cannot be altered as a result of the right that individuals are recognised as having, under
the Court’s case-law, to require the national authorities, if necessary by bringing an action before the
courts having jurisdiction, to adopt an air quality plan in the event that the limit values referred to in
Directive 2008/50 and the previous directives are exceeded. That right, which stems in particular from
the principle of effectiveness of EU law, effectiveness to which affected individuals are entitled to
contribute by bringing administrative or judicial proceedings based on their own particular situation,
does not mean that the obligations resulting from Article 13(1) and Article 23(1) of Directive 2008/50
and the analogous provisions of the earlier directives were intended to confer individual rights on
interested persons, for the purpose of the first of the three conditions referred to above.
Having regard to all of those considerations, the Court concludes that Article 13(1) and Article 23(1) of
directives, must be interpreted as meaning that they are not intended to confer rights on individuals
capable of entitling them to compensation from a Member State under the principle of State liability
for loss and damage caused to individuals as a result of breaches of EU law attributable to that
Member State.
6. ENERGY
Judgment of the General Court (Second Chamber, Extended Composition), 7 September
2022, BNetzA v ACER, T-631/19
Energy – Internal market in electricity – Regulation (EU) 2019/942 – Decision of the Board of Appeal of
ACER – Action for annulment – Act not open to challenge – Inadmissibility – Competence of ACER –
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