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

Provisional text

ORDER OF THE GENERAL COURT (Second Chamber)

22 January 2020 (*)

(Action for annulment — Withdrawal of certified CO2 savings — Eco-innovations scheme — Regulation (EC) No 443/2009 — Implementing Regulation (EU) No 725/2011 — Act not open to challenge — Preparatory measure — Inadmissibility)

In Case T‑751/18,

Daimler AG, established in Stuttgart (Germany), represented by N. Wimmer, C. Arhold and G. Ollinger, lawyers,

applicant,

v

European Commission, represented by J.-F. Brakeland and A. Becker, acting as Agents,

defendant,

APPLICATION based on Article 263 TFEU for annulment of Commission letter Ares(2018) 5413709 of 22 October 2018 notifying the withdrawal of CO2 savings achieved by eco-innovations attributed to Daimler AG vehicles fitted with Bosch HED EL 7-150 and 175 plus high efficient alternators,

THE GENERAL COURT (Second Chamber),

composed of V. Tomljenović (Rapporteur), President, P. Škvařilová-Pelzl and I. Nõmm, Judges,

Registrar: E. Coulon,

makes the following

Order

 Legal context

1        In the context of the European Union’s objective to reduce carbon dioxide (CO2) emissions from light-duty vehicles while ensuring the proper functioning of the internal market, the European Parliament and the Council of the European Union adopted Regulation (EC) No 443/2009 of 23 April 2009 setting emission performance standards for new passenger cars as part of the Community’s integrated approach to reduce CO2 emissions from light-duty vehicles (OJ 2009 L 140, p. 1).

2        In order to achieve that objective, Article 4 of Regulation No 443/2009 provides that, for the calendar year commencing on 1 January 2012 and each subsequent calendar year, each manufacturer of passenger cars is to ensure that its average specific emissions of CO2 do not exceed its specific emissions target determined in accordance with Annex I to that regulation or, where a manufacturer is granted a derogation under Article 11 of that regulation, in accordance with that derogation.

3        The determination of a manufacturer’s specific emissions target is made in accordance with Article 4 of Regulation No 443/2009, read in conjunction with Annex I to that regulation. Moreover, for the purposes of determining a manufacturer’s average specific emissions of CO2, Member States identify the data referred to in Article 8 of Regulation No 443/2009, read in conjunction with Annex II to that regulation, in particular the CO2 emissions for all new passenger cars registered in their territory during the previous year, as determined in the context of the type-approval of vehicles and designated in the certificate of conformity provided for in Article 18 of Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) (OJ 2007 L 263, p. 1).

4        The European Commission records that data in a public register. In accordance with Article 8(4) of Regulation No 443/2009, the Commission also establishes, by 30 June of each year, a provisional calculation of the average specific emissions of CO2, the specific emissions target and the difference between those two figures during the preceding calendar year, for each manufacturer, and communicates that data to those manufacturers.

5        After a period of 3 months from that notification, during which manufacturers may notify any errors, the Commission, by 31 October each year, confirms or amends the data provisionally calculated, in accordance with Article 8(5) of Regulation No 443/2009. The Commission establishes the final data in a formal decision and publishes it in the form of the list referred to in Article 10 of that Regulation which indicates, for each manufacturer, the target set for the preceding calendar year, the average specific emissions of CO2 in the preceding year and the difference between those two figures.

6        If a manufacturer’s average specific emissions of CO2 exceed its target for the same calendar year, the Commission imposes an excess emissions premium laid down in Article 9 of Regulation No 443/2009. When levying that premium, the Commission relies on the data defined and formally established in accordance with Article 8(5) of that regulation.

7        In addition to protection of the environment, the reduction of CO2 emissions from new passenger cars, set out in Regulation No 443/2009, is aimed at the proper functioning of the internal market and in particular at encouraging investment in new technologies. Therefore, with a view to promoting the long-term competitiveness of the European automotive industry, the regulation ‘actively promotes eco-innovation and takes into account future technological developments’ (see recital 13 of Regulation No 443/2009).

8        Consequently, Article 12 of Regulation No 443/2009 on eco-innovations provides that CO2 savings achieved through the use of innovative technologies are to be taken into account. To that end, they are deducted from the specific CO2 emissions of the vehicles in which those technologies are used when calculating a manufacturer’s average specific emissions of CO2.

9        Accordingly, on 25 July 2011, the Commission adopted Implementing Regulation (EU) No 725/2011, establishing a procedure for the approval and certification of innovative technologies for reducing CO2 emissions from passenger cars, pursuant to Regulation No 443/2009 (OJ 2011 L 194, p. 19).

10      In order for a manufacturer to benefit from CO2 savings based on innovative technology in the determination of its average specific emissions of CO2, the manufacturer may apply to the Commission for approval of an innovative technology as an eco-innovation. To do so, it must submit an application for the approval of an innovative technology as an eco-innovation containing the information listed in Article 4 of Implementing Regulation No 725/2011. The Commission will assess the application in accordance with Article 10 of that regulation and, if necessary, adopt a decision approving the innovative technology as an eco-innovation. That decision specifies the information required for the certification of CO2 savings in accordance with Article 11 of the Implementing Regulation No 725/2011, subject to the application of the exceptions to the right of public access to documents provided for in Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

11      A vehicle manufacturer which, in order to achieve its specific emissions target, wishes to benefit from a reduction in its average specific emissions of CO2 through CO2 savings resulting from an eco-innovation under Article 12 of Regulation No 443/2009 may then, with reference to the Commission’s decision on the approval of a specific eco-innovation, request the national approval authority referred to in Directive 2007/46 to certify the CO2 savings achieved by the use of that eco-innovation in its vehicles, in accordance with Article 11(1) of Implementing Regulation No 725/2011. The CO2 savings which are certified for the vehicle types are referred to both in the corresponding type-approval documentation issued by the national approval authority and in the certificate of conformity of the vehicles concerned, issued by the manufacturer.

12      With regard to the certification of CO2 savings by the national approval authorities and the taking into account of certified CO2 savings to determine a manufacturer’s average specific emissions of CO2, Article 12 of Implementing Regulation No 725/2011 provides for a review of certifications by the Commission on an ad hoc basis. The detailed provisions for that ad hoc verification and any consequences are defined in paragraphs 1 to 3 of that article.

 Background to the dispute and events subsequent to the bringing of the action

13      On 30 January 2015, the Commission adopted Implementing Decision (EU) 2015/158 on the approval of two Robert Bosch GmbH high efficient alternators as the innovative technologies for reducing CO2 emissions from passenger cars pursuant to Regulation No 443/2009 (OJ 2015 L 26, p. 31).

14      The applicant, Daimler AG, is a German car manufacturer which fits certain passenger cars with Robert Bosch high efficient alternators (‘the eco-innovations at issue’).

15      In accordance with Article 11 of Implementing Regulation No 725/2011 on the certification of CO2 savings achieved through eco-innovations, the applicant applied for and obtained certification from the Kraftfahrt-Bundesamt (KBA, Federal Office for Motor Vehicle Traffic, Germany) for the CO2 savings achieved through the use of the eco-innovations at issue in some of its vehicles.

16      In 2017, the Commission, in accordance with Article 12 of Implementing Regulation No 725/2011 on the review of certifications, carried out an ad hoc review of the certifications of the applicant’s CO2 savings achieved through the use of the eco-innovations at issue.

17      The Commission found that the CO2 savings certified by the KBA were much higher than the CO2 savings that could be demonstrated by applying the testing methodology laid down in Article 1(3) of Implementing Decision 2015/158, read in conjunction with the annex to Commission Implementing Decision 2013/341/EU of 27 June 2013 on the approval of the Valeo Efficient Generation Alternator as an innovative technology for reducing CO2 emissions from passenger cars pursuant to Regulation No 443/2009 (OJ 2013 L 179, p. 98).

18      By letter of 7 March 2018, the Commission informed the applicant of the discrepancies found and set a deadline of 60 days for it to provide proof that the certified CO2 savings were correct.

19      On 16 March 2018, the applicant acknowledged receipt of the letter of 7 March 2018 and proposed a telephone appointment with the Commission.

20      On 6 April 2018, a first telephone call was made, during which the applicant indicated its intention to present facts to explain the difference found by the Commission during its ad hoc review.

21      After discussions between, first, the applicant and the manufacturer of the eco-innovations at issue and, second, the applicant and the Commission, the Commission reviewed the situation on 28 May 2018 and requested the applicant to submit to it further observations and certain documents.

22      Following further exchanges between the applicant and the Commission, a second telephone appointment took place on 24 July 2018 between the applicant, the manufacturer of the eco-innovations at issue and the Commission, during which the reasons for the discrepancies between the certified CO2 savings and the savings demonstrated by the Commission in its ad hoc review were extensively discussed.

23      By letter Ares(2018) 5413709 of 22 October 2018, notifying the withdrawal of the CO2 savings achieved by eco-innovations attributed to Daimler AG vehicles fitted with Bosch HED EL 7150 and 175 plus high efficient alternators (‘the contested act’), the Commission, in essence, informed the applicant that, following its exchanges with the applicant and the manufacturer of the eco-innovations at issue, it had concluded that the differences found in the levels of CO2 savings were due to the different testing methodologies used. Consequently, the Commission informed the applicant that the certified CO2 savings by reference to Implementing Decision 2015/158 could not be taken into account for the calculation of its average specific emissions of CO2 for the year 2017. Finally, the Commission requested the applicant to check the list of the vehicles concerned and to notify it of any errors or omissions within 1 month of receipt of that letter.

24      By letter of 22 November 2018, the applicant confirmed the list of vehicles concerned and disputed the Commission’s findings in the contested act.

25      By letter of 7 February 2019, the Commission replied to the arguments submitted by the applicant in its letter of 22 November 2018.

26      Furthermore, on 3 April 2019, the Commission adopted Implementing Decision (EU) 2019/583 confirming or amending the provisional calculation of average specific emissions of CO2 and specific emission targets for manufacturers of passenger cars for the calendar year 2017 and for certain manufacturers belonging to the Volkswagen pool for the calendar years 2014, 2015 and 2016 pursuant to Regulation (EC) No 443/2009 (OJ 2019 L 100, p. 66). Recital 13 of that implementing decision states that the certified CO2 savings attributed to the eco-innovations at issue used by the applicant should not be taken into account for the calculation of its average specific emissions.

 Procedure and forms of order sought

27      By application lodged at the Court Registry on 21 December 2018, the applicant brought the present action.

28      By separate document lodged at the Court Registry on 18 March 2019, the Commission raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court.

29      The applicant lodged its observations on that plea on 6 May 2019.

30      In the application, the applicant claims that the Court should:

–        annul the contested act;

–        order the Commission to pay the costs.

31      In its plea of inadmissibility, the Commission contends that the Court should:

–        dismiss the action as inadmissible;

–        order the applicant to pay the costs.

32      In its observations on the plea of inadmissibility, the applicant claims that the Court should:

–        dismiss the plea of inadmissibility;

–        set the Commission a new deadline for the submission of the defence.

33      By way of measures of organisation of procedure, the Court (former Seventh Chamber) requested the Commission to reply in writing to three questions. The Commission complied with that request within the prescribed period.

34      Following a change in the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the present case was reallocated to the Second Chamber.

 Law

35      Under Article 130(1) and (7) of the Rules of Procedure, if the defendant so requests, the Court may give a ruling on inadmissibility or lack of competence without going to the substance of the case. In the present case, since the Commission has requested the Court to give a ruling on inadmissibility, and the Court considers that it has sufficient information available to it from the material in the file, the Court has decided to give a ruling without taking further steps in the proceedings.

36      In support of the plea of inadmissibility, the Commission submits, in essence, first, that the contested act does not produce any binding legal effect on the applicant, so that, in the absence of an act adversely affecting the applicant, there is no valid action under Article 263 TFEU. In that regard, the Commission submits, in essence, that only Implementing Decision 2019/583, by which it established in a legally binding manner the applicant’s average specific emissions of CO2 for the year 2017, produces legal effects. Second, it submits that the applicant has no interest in bringing proceedings, even if its right to effective judicial protection were taken into account, in accordance with Article 47 of the Charter of Fundamental Rights of the European Union.

37      The applicant takes issue with the Commission’s arguments. The applicant submits that the contested act already directly affects its legal situation, irrespective of Implementing Decision 2019/583. The Commission has already given a decision in principle and in a legally binding manner in the contested act on the fact that the certified CO2 savings resulting from the eco-innovations at issue should not be taken into account in favour of the applicant. Consequently, the applicant cannot be invited to challenge the implementation of that decision under Implementing Decision 2019/583.

38      Under Article 263 TFEU, an action for annulment may be brought against acts, other than recommendations and opinions, intended to produce legal effects vis-à-vis third parties.

39      In order to determine whether an act may be subject to such an action, importance must be given to the substance of that act, the form in which an act or decision is adopted being in principle irrelevant. In that regard, only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position may be the subject of an action for annulment (judgment of 19 January 2017, Commission v Total and Elf Aquitaine, C‑351/15 P, EU:C:2017:27, paragraphs 35 and 36).

40      More specifically, in the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, an act is open to review only if it is a measure definitively laying down the position of the institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for that final decision (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 10, and of 27 June 1995, Guérin automobiles v Commission, T‑186/94, EU:T:1995:114, paragraph 39).

41      It would be otherwise only if acts or decisions adopted in the course of the preparatory proceedings were themselves the culmination of a special procedure distinct from that intended to permit the institution to take a decision on the substance of the case (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 11, and order of 9 June 2004, Camós Grau v Commission, T‑96/03, EU:T:2004:172, paragraph 30).

42      Furthermore, an intermediate measure is not capable of forming the subject matter of an action if it is established that the illegality attaching to that measure can be relied on in support of an action against the final decision for which it represents a preparatory step. In such circumstances, the action brought against the decision terminating the procedure will provide sufficient judicial protection (judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 53; see also, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 12, and of 24 June 1986, AKZO Chemie and AKZO Chemie UK v Commission, 53/85, EU:C:1986:256, paragraph 19).

43      It is therefore necessary to examine whether the contested act affects the applicant’s interests by significantly altering its legal situation and, as such, constitutes an act adversely affecting it.

44      In order to answer that question, it is necessary to analyse, in the first place, the regulatory framework of the contested act and Implementing Decision 2019/583 before examining, in the second place, the substance of that act.

45      In the first place, as regards the regulatory framework, it should be noted that, in the present case, reference is made to the eco-innovations scheme established by Article 12 of Regulation No 443/2009 and governed by Implementing Regulation No 725/2011.

46      As noted in paragraphs 7 and 8 above, Regulation No 443/2009 encourages the development of eco-innovation by providing, in Article 12, for the possibility for manufacturers to achieve a reduction in their average specific emissions of CO2 when they fit their vehicles with innovative technologies to reduce CO2 emissions. It is therefore an incentive scheme, set up to favour manufacturers who invest in eco-innovation. Article 12(2) of Regulation No 443/2009 also provides for the adoption by the Commission, by means of implementing acts, of detailed provisions for a procedure to approve innovative technologies that reduce CO2 emissions from passenger cars.

47      It is in that context that Implementing Regulation No 725/2011 was adopted. In that respect, it should be recalled that, according to Article 1, the objective of Implementing Regulation No 725/2011 is to set out the procedure to be followed for the application for, and assessment, approval and certification of, innovative technologies that reduce emissions of CO2 from passenger cars, pursuant to Article 12 of Regulation No 443/2009.

48      Therefore, the procedure for approving an innovative technology as an eco-innovation and for certifying the CO2 savings achieved through eco-innovations under Implementing Regulation No 725/2011 are inextricably linked to the calculation of manufacturers’ average specific emissions of CO2 as defined in Regulation No 443/2009. In that regard, it should be noted that the approval as eco-innovation and the certification of CO2 savings achieved by a manufacturer under Implementing Regulation No 725/2011 do not pursue any other objective than to reduce a manufacturer’s average specific emissions and are not used in a context differing from that of Regulation No 443/2009.

49      In that respect, it should be noted that the implementing decisions adopted by the Commission following the approval procedure laid down in Implementing Regulation No 725/2011 are based on Article 12(4) of Regulation No 443/2009 and expressly state in their titles that they aim to approve a technology as an innovative technology to reduce CO2 emissions from passenger cars.

50      Implementing Regulation No 725/2011 therefore establishes the legal framework of the eco-innovation scheme in the context of the application of Regulation No 443/2009, and more specifically for the calculation of manufacturers’ average specific emissions of CO2.

51      In the second place, as regards the substance of the contested act, it should be noted that, as stated in paragraphs 16 to 23 above, it was sent to the applicant following an ad hoc review carried out by the Commission pursuant to Article 12 of Implementing Regulation No 725/2011. By that act, the Commission, in essence, informed the applicant that, following its exchanges with the applicant and the manufacturer of the eco-innovations at issue, the Commission had concluded that the differences found in the levels of CO2 savings were due to the different testing methodologies used. Consequently, the Commission informed the applicant that the certified CO2 savings by reference to Implementing Decision 2015/158 could not be taken into account for the calculation of its average specific emissions of CO2 for the year 2017. Finally, the Commission requested the applicant to check the list of vehicles concerned and to notify it of any errors or omissions within 1 month of receipt of that act.

52      The applicant points out that Article 12 of Implementing Regulation No 725/2011, on which the contested act is based, makes available to the Commission a specific verification procedure on an ad hoc basis and gives it the power to decide not to take into account certified CO2 savings for the calculation of a manufacturer’s average specific emissions of CO2 for the following calendar year. The applicant submits that the power to adopt a decision on not taking into account the certified savings therefore constitutes, in the light of the general scheme of the law, the final point of the verification procedure referred to in Article 12 of Implementing Regulation No 725/2011, which is separate from that provided for in Article 12 of Regulation No 443/2009. Consequently, the reference made by the Commission in the contested act to Article 12 of Implementing Regulation No 725/2011, in conjunction with the statement that the certified CO2 savings cannot be taken into account, should be regarded as a decision adopted on the basis of Article 12(2) of Implementing Regulation No 725/2011, which gives the Commission precisely that power.

53      In particular, the applicant points out that, having regard to its context and the reference to Article 12 of Implementing Regulation No 725/2011, the phrase ‘may not’ used in the fourth paragraph of the contested act in the sentence ‘As a result, the Commission hereby notifies you of the eco-innovation CO2 savings certified by reference to Implementing Decision (EU) 2015/158 that may not be taken into account for the calculation of the average specific emissions of Daimler AG in 2017’, should be understood as a statement of principle and not simply as a ‘notice’ or a mere possibility of a future measure.

54      However, that argument cannot be followed.

55      In that regard, first, it should be recalled that Article 12 of Implementing Regulation No 725/2011 provides as follows:

‘1.      The Commission shall ensure that the certifications and the CO2 savings attributed to individual vehicles are verified on an ad hoc basis.

Where it finds that there is a difference between the certified CO2 savings and the savings it has verified using the relevant testing methodology or methodologies, the Commission shall notify the manufacturer of its findings.

The Commission may also, where it finds or is informed of deviations or inconsistencies in the testing methodology or in the innovative technology in comparison to the information it had received as part of the application for the approval of the innovative technology as an eco-innovation, notify this to the manufacturer.

The manufacturer may within 60 days of receipt of the notification provide the Commission with evidence demonstrating the accuracy of the certified CO2 savings. At the request of the Commission, the report on the interaction of different eco-innovations referred to in Article 7(3) shall be provided.

2.      Where the evidence referred to in paragraph 1 is not provided within the indicated time period, or it finds that the evidence provided is not satisfactory, the Commission may decide not to take the certified CO2 savings into account for the calculation of the average specific emissions of that manufacturer for the following calendar year.

3.      A manufacturer for which the certified CO2 savings are no longer taken into account may apply for a new certification of the vehicles concerned in accordance with the procedure laid down in Article 11, or may, where appropriate, make a request for an amendment of the approval decision in accordance with Article 12a, which shall be supported by such evidence that is required to confirm the appropriateness of the testing methodology and the level of CO2 savings achieved by the innovative technology.’

56      Second, it should be noted that, in the context of the contested act dated 22 October 2018, it is in the light of the calculation of the applicant’s average specific emissions of CO2 for the year 2017 that the Commission stated that its verifications concerning the savings linked to the eco-innovations at issue had not enabled it to achieve the same results as those put forward by the applicant and that the Commission could, consequently, disregard the certified CO2 savings.

57      Moreover, although the contested act informs the applicant of the possible consequences of the Commission’s findings for 2017, the fact remains that, as is also apparent from the contested act, the only consequence foreseen in the present case in the event of a deficiency found in the CO2 savings is that the Commission disregards the certified CO2 savings for the calculation of the manufacturer’s average specific emissions.

58      It is therefore with a view to making such a calculation that the Commission will determine whether those savings should be disregarded. From that perspective, certified CO2 savings are data, as are other data collected and transmitted by Member States to the Commission in accordance with Article 8(1) and (2) of Regulation No 443/2009. Thus, as the Commission stated in response to a question raised by way of a measure of organisation of procedure, the examination of whether the CO2 savings resulting from the use of eco-innovations were taken into account, in accordance with Article 12 of Regulation No 443/2009, when determining a manufacturer’s emission performance, is an integral part of the calculation of the average specific emissions of CO2 of the manufacturer concerned, as provided for in Article 8 of Regulation No 443/2009. Consequently, as the Commission indicated, the decision on whether or not to take into account the certified CO2 savings necessarily coincides with the adoption of the decision referred to in Article 8(5) of Regulation No 443/2009.

59      In that regard, the calculation process, provided for in Article 8 of Regulation No 443/2009, involves both the determination of the data that will be taken into account and the application of mathematical formulae to such data, so that it cannot be considered that the Commission adopts one decision on the data to be taken into account and another separate decision on the calculation itself. In those circumstances, the contested act, in so far as it envisages possibly not taking into account those savings, is only a preparatory measure in the procedure leading to the adoption, on the basis of Article 8 of Regulation No 443/2009, of the decision on the calculation of a manufacturer’s average specific emissions.

60      The fact that the contested act does indeed show that the Commission had reached a conclusion with regard to the certified CO2 savings and that that conclusion was capable of influencing the calculation of the applicant’s average specific emissions of CO2, does not, however, mean that it is a final decision, adopted under a procedure separate to that leading to the adoption of Implementing Decision 2019/583. The fact that the contested act refers precisely to the future calculation of the applicant’s average specific emissions of CO2 illustrates the non-permanent nature of the contested act, which is only a stage of the procedure leading to the calculation of the applicant’s average specific emissions of CO2. In that respect, it should be noted that Article 8(4) of Regulation No 443/2009 provides that the Commission is to notify each manufacturer of its provisional calculation so that the manufacturer can, in accordance with Article 8(5) of that Regulation, notify the Commission of any error in the data taken into account for the calculation. Thus, the communication made to the applicant by the contested act is part of the dialogue open between the Commission and manufacturers for the calculation of their average specific emissions.

61      In that regard, it should also be noted that, in recitals 11 to 13 of Implementing Decision 2019/583, the Commission referred to the ad hoc verification which it carried out in respect of the eco-innovations at issue used by the applicant, the result of that verification, namely that the certified CO2 savings of two high efficient alternators fitted in certain vehicles manufactured by the applicant were not confirmed, and finally the result of that finding: those certified CO2 savings were not taken into account for the calculation of the applicant’s average specific emissions for 2017, the subject matter of that implementing decision.

62      Moreover, although the contested act expresses the position which the Commission Directorate-General for Climate Action reached at the end of the ad hoc verification of those certifications, provided for in Article 12 of Implementing Regulation No 725/2011, it does not definitively establish the Commission’s own position. Only the position laid down by the Commission in Implementing Decision 2019/583 is capable of bringing about a distinct change in the legal position of the person to whom it is addressed or of any other person directly and individually concerned by it, such as the applicant (see, to that effect and by analogy, order of 22 November 2007, Investire Partecipazioni v Commission, T‑418/05, not published, EU:T:2007:354, paragraph 39).

63      Consequently, the contested act, although containing an assessment of the applicant’s certified CO2 savings, is not the final decision, since the final decision contains the calculation of manufacturers’ average specific emissions of CO2, in this case Implementing Decision 2019/583, in which the certified CO2 savings not being taken into account is reflected. It is therefore Implementing Decision 2019/583 which is the only measure which clearly determines the average specific emissions of CO2 of manufacturers, including the applicant, and which will therefore have an impact on the applicant’s legal situation.

64      In that regard, it should be noted that the applicant may invoke the possible illegality of the contested act in an action for annulment brought against Implementing Decision 2019/583, since the latter refers precisely to the Commission’s conclusions formulated during the ad hoc verification of the certifications at issue.

65      Finally, third, with regard more particularly to the applicant’s argument that the contested act constitutes a decision implementing the powers conferred on the Commission on the basis of Article 12(2) of Implementing Regulation No 725/2011, it should be noted that that paragraph concerns exclusively the calculation of the manufacturer’s average specific emissions for the following calendar year, whereas the contested act concerns the calculation of those emissions for 2017.

66      Furthermore, and in any event, it should be noted that, even if the contested act may have an impact on the calculation of the manufacturer’s average specific emissions for the following calendar year, namely 2019, it will remain open to the applicant to invoke the possible illegality of that act in an action for annulment brought against the implementing decision confirming or amending the provisional calculation of its average specific emissions of CO2 for that year.

67      Consequently, the contested act must be regarded as a preparatory measure in the procedure to calculate the applicant’s average specific emissions of CO2 and may not, therefore, be the subject of an action for annulment.

68      That conclusion cannot be called into question by the other arguments put forward by the applicant in order to demonstrate that the contested act has already produced effects which have affected its legal situation.

69      First, the applicant submits that the contested act, in itself, already directly affects its legal position, irrespective of Implementing Decision 2019/583, since the applicant is no longer entitled to include the certified CO2 savings in the certificate of conformity and since the KBA is no longer authorised to refer to the applicant’s certified CO2 savings in the type approval documentation.

70      In that regard, it should be noted that such effects are not expressly provided for in Article 12 of Implementing Regulation No 725/2011 and do not necessarily or automatically result from the Commission’s finding which led to the certified CO2 savings not being taken into account for the calculation of a manufacturer’s average specific emissions. Paragraph 3 of that article, relating to the action that the manufacturer may take in such a situation, provides that that manufacturer may either apply for a new certification or make a request for an amendment of the approval decision. However, no modification or revision of the certificates of conformity issued by the manufacturer and the type-approval documentation provided by the national approval authority is required at that stage. Finally, in reply to a question raised by the Court by way of a measure of organisation of procedure, the Commission confirmed that the documentation by type and the certificate of conformity did not become incorrect when it had been found that the certified CO2 savings could not be taken into account for the calculation of a manufacturer’s average specific emissions of CO2.

71      Second, the applicant points out that Article 12(3) of Implementing Regulation No 725/2011, by inviting the manufacturer to apply for a new certification, proves the legally binding nature of the decision on the certified CO2 savings not being taken into account.

72      That argument is ineffective for the purposes of determining whether or not the contested act is a preparatory measure. The possibility offered to the manufacturer by Article 12(3) of Implementing Regulation No 725/2011 does not, in any event, affect the process of calculating its average specific emissions of CO2 for a year in which the certified CO2 savings have not been taken into account. The fact that that article refers to ‘a manufacturer for which the certified CO2 savings are no longer taken into account’ shows that the possibility of applying for a new certification is open to the manufacturer whose situation is definitively acquired, in other words to the manufacturer whose certified CO2 savings have definitely not been taken into account, which, as stated in paragraphs 58 and 63 above, results from the final decision on the calculation of manufacturers’ average specific emissions.

73      Third, with regard to the applicant’s argument that the contested act directly affects its legal position in so far as it is no longer able to sell its vehicles with a certificate of conformity proving the CO2 savings, it should be noted that, first, as stated in paragraph 70 above, the certificate of conformity does not become incorrect. Second, in any event, even if, as the applicant claims, the certification of CO2 savings may constitute a sales argument in the current context where consumers are increasingly aware of the impact of the use of light vehicles on the environment, that does not mean that the withdrawal of such certification, from that perspective, can be considered to affect the applicant’s legal situation. The fact that the applicant can no longer rely on a sales argument cannot be regarded as demonstrating the infringement of a right that the applicant has acquired. In addition, the applicant remains free to sell its vehicles. Consequently, it cannot claim that its legal situation has been affected.

74      Fourth, according to the applicant, the contested act envisaged a continuation of the exchange between it and the Commission solely on the issue of the list of vehicles concerned. The Commission therefore concluded the substantive matter at issue concerning the certified CO2 savings not being taken into account. By its letter of 22 November 2018, the applicant explicitly requested the withdrawal of the adopted decision and did not continue the previous exchange of arguments.

75      In that regard, it should be noted that it does indeed appear from the contested act that the Commission was awaiting comments from the applicant only on the list of vehicles concerned. The fifth paragraph of that act refers to possible errors or omissions in the list of vehicles concerned, which is supported by the fact that the conclusion of that paragraph is, in essence, that, in the absence of any comment from the applicant, the list is considered to be correct. However, even if the Commission requested the applicant to only verify the list of vehicles concerned, the fact remains that, in so doing, it stated to the applicant its intention to continue the dialogue with it. Not only did the applicant explain in its letter of 22 November 2018 why it disagreed with the Commission’s conclusions on the verification of the certified CO2 savings at issue in this case, but the Commission, in its letter of 7 February 2019, replied to the applicant’s observations, thus demonstrating that the dialogue with the applicant on the matter was not closed. Finally, it should be noted that, in its letter of 7 February 2019, the Commission concluded, in essence, that it was in the process of finalising Implementing Decision 2019/583, in which it stated that it intended to give detailed reasons for not taking into account the certified CO2 savings.

76      It follows from all of the foregoing that, as the Commission has argued, the contested act constitutes a preparatory measure and is therefore not an act open to challenge. Consequently, the action must be dismissed as inadmissible in the absence of an act adversely affecting the applicant.

 Costs

77      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

78      Since the applicant has been unsuccessful, it must, in accordance with the form of order sought by the Commission, be ordered to pay, in addition to its own costs, the costs incurred by the Commission.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby orders:

1.      The action is dismissed as inadmissible.

2.      Daimler AG is ordered to pay the costs.

Luxembourg, 22 January 2020.

*      Language of the case: German.

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