15 September 2022 (*)

(Action for annulment – Environment – Commission Guidelines on single-use plastic products – Directive (EU) 2019/904 – Reduction of the impact of certain plastic products on the environment – Act not open to challenge – Inadmissibility)

In Case T‑518/21,

European Paper Packaging Alliance,

applicant,

European Commission,

defendant,

THE GENERAL COURT (Tenth Chamber),

composed of A. Kornezov, President, E. Buttigieg (Rapporteur) and D. Petrlík, Judges,

Registrar: E. Coulon,

having regard to the written part of the procedure, inter alia:

–the application lodged at the Court Registry on 24 August 2021,

–the plea of inadmissibility raised by the Commission by separate document lodged at the Court Registry on 23 November 2021,

–the applicant’s observations on the plea of inadmissibility lodged at the Court Registry on 18 January 2022,

–the applications to intervene of the Kingdom of the Netherlands, the European Parliament and the Council of the European Union, lodged at the Court Registry on 4, 7 and 6 December 2021, respectively,

makes the following

1By its action under Article 263 TFEU, the applicant, the European Paper Packaging Alliance, seeks the annulment of points 2.1.2 and 2.2.1 and of Tables 4-2 and 4-8 of the Commission guidelines on single-use plastic products in accordance with Directive (EU) 2019/904 of the European Parliament and of the Council on the reduction of the impact of certain plastic products on the environment (OJ 2021 C 216, p. 1) (‘the contested guidelines’)

Background to the dispute

2On 5 June 2019, the European Parliament and the Council of the European Union adopted, on the basis, inter alia, of Article 192(1) TFEU, Directive (EU) 2019/904 on the reduction of the impact of certain plastic products on the environment (OJ 2019 L 155, p. 1).

3The objectives of Directive 2019/904 are set out in Article 1:

‘The objectives of this Directive are to prevent and reduce the impact of certain plastic products on the environment, in particular the aquatic environment, and on human health, as well as to promote the transition to a circular economy with innovative and sustainable business models, products and materials, thus also contributing to the efficient functioning of the internal market.’

4Article 2(1) of Directive 2019/904 states that it is to apply, inter alia, to the single-use plastic products listed in the annex thereto.

5The term ‘plastic’ is defined in Article 3(1) of Directive 2019/904 as ‘a material consisting of a polymer as defined in point 5 of Article 3 of Regulation (EC) No 1907/2006 [of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1)], to which additives or other substances may have been added, and which can function as a main structural component of final products, with the exception of natural polymers that have not been chemically modified’.

6The term ‘single-use plastic product’ is defined in Article 3(2) of Directive 2019/904 as ‘a product that is made wholly or partly from plastic and that is not conceived, designed or placed on the market to accomplish, within its life span, multiple trips or rotations by being returned to a producer for refill or re-used for the same purpose for which it was conceived’.

7In order to attain the objectives laid down in Article 1, Directive 2019/904 lays down, in Articles 4 to 10, a series of obligations on the Member States in respect of the single-use plastic products referred to in the annex to that directive. It lays down, inter alia, an obligation on the Member States to take the necessary measures to achieve an ‘ambitious and sustained’ reduction in the consumption of the single-use plastic products listed in Part A of the Annex (Article 4(1)), an obligation to prohibit the placing on the market of the single-use plastic products listed in Part B of the Annex (Article 5) and the obligation to adopt measures concerning the marking of single-use plastic products listed in Part D of the Annex (Article 7(1)).

8Article 12 of Directive 2019/904, entitled ‘Specifications and guidelines on single-use plastic products’, provides as follows:

‘In order to determine whether a food container is to be considered as a single-use plastic product for the purposes of this Directive, in addition to the criteria listed in the Annex as regards food containers, its tendency to become litter, due to its volume or size, in particular single-serve portions, shall play a decisive role.

By 3 July 2020, the Commission shall publish guidelines, in consultation with Member States, including examples of what is to be considered a single-use plastic product for the purposes of this Directive, as appropriate.’

9Following the instruction that had been given to it by the EU legislature in the second paragraph of Article 12 of Directive 2019/904, the European Commission adopted the contested guidelines.

10In the present action, the applicant, which is a not-for-profit association whose members include suppliers and manufacturers of cardboard and cardboard packaging intended for the food and catering sector and, in particular, of cups and containers made from paper with polymeric coating (‘the products concerned’), disputes, in essence, the Commission’s analysis, in the contested guidelines, of Article 3(1) and (2) of Directive 2019/904, which led to the classification of the products concerned as ‘single-use plastic products’ and, therefore, their inclusion within the scope of that directive.

11By separate document lodged at the Court Registry on 23 November 2021, the Commission raised a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court.

Forms of order sought

12The applicant claims, inter alia, that the Court should:

–reject the plea of inadmissibility;

–annul points 2.1.2 and 2.2.1 and Tables 4-2 and 4-8 of the contested guidelines;

–order the Commission to pay the costs.

13The Commission contends that the Court should:

–declare the action inadmissible;

–order the applicant to pay the costs.

Law

14Under 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, as the Commission has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.

15The Commission submits that the action is inadmissible on the ground, inter alia, that the contested guidelines do not constitute a challengeable act for the purposes of Article 263 TFEU.

16The applicant does not accept the Commission’s argument.

17It is settled case-law that actions for annulment, provided for under Article 263 TFEU, are available in the case of all measures adopted by the institutions, bodies, offices and agencies of the European Union, whatever their form, which are intended to have binding legal effects (see judgment of 15 July 2021, FBF, C‑911/19, EU:C:2021:599, paragraph 36 and the case-law cited).

18Conversely, any European Union act not producing binding legal effects falls outside the scope of the judicial review provided for in Article 263 TFEU (see judgment of 15 July 2021, FBF, C‑911/19, EU:C:2021:599, paragraph 37 and the case-law cited).

19In order to determine whether an act produces binding legal effects, it is necessary, in accordance with the settled case-law of the Court of Justice, to examine the substance of that act and to assess its effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the EU institution, body, office or agency which adopted it (see judgment of 15 July 2021, FBF, C‑911/19, EU:C:2021:599, paragraph 38 and the case-law cited).

20As regards, in the first place, the content of the contested guidelines, it should be noted that those guidelines are divided into four points

21Point 1 contains the introduction.

22In the first paragraph of the introduction to the contested guidelines, the Commission states that that document ‘provides guidance on the interpretation and implementation of [Directive 2019/904]’. In the second paragraph, the Commission also states that that directive applies to all the single-use plastic products listed in the annex thereto and to all products made from oxo-degradable plastics and to fishing gear containing plastic and that, in accordance with Article 12 of Directive 2019/904, it is tasked with ‘[developing] guidelines including examples of what is to be considered a single-use plastic product for the purposes of the Directive’.

23In addition, the Commission states, in the fourth paragraph of the introduction, the following:

‘This document provides guidance on key definitions of the Directive and examples of products to be considered as falling within or outside its scope. These examples are non-exhaustive and serve only to provide illustration on how to interpret certain definitions and relevant requirements of the Directive in the context of the specific single-use plastic products. The content, including examples, reflects the views of the European Commission and as such is not legally binding. The binding interpretation of EU legislation is the exclusive competence of the Court of Justice of the European Union.’

24Point 2 of the contested guidelines, entitled ‘General terms and definitions’, contains the Commission’s interpretation of the definitions of the terms ‘plastic’ and ‘single-use plastic product’ in Article 3(1) and (2) of Directive 2019/904.

25Thus, as regards the definition of the term ‘plastic’ in Article 3(1) of Directive 2019/904, and as regards the criterion ‘can function as a main structural component’ in that provision, the Commission states, in point 2.1.2 of the contested guidelines, as follows:

‘The aspect of the capability to function as a main structural component of final products concerns the definition of plastic and not the definition of a single-use plastic product. Therefore, in the context of the definition of plastic this criterion is to be understood as a generic concept. As point (1) of Article 3 [of Directive 2019/904] does not specify or restrict in any way the type of final product, nor the amount of the polymer, in principle, a wide range of polymers can function as a main structural component of final products.’

26As regards the definition of ‘single-use plastic product’ in Article 3(2) of Directive 2019/904, and as regards the criterion ‘made wholly or partly from plastic’ in that provision, the Commission states, in the first subparagraph of point 2.2.1 of the contested guidelines, as follows:

‘Single-use plastic products listed in the Annex to … Directive [2019/904] are within its scope if they are wholly or only partly made from plastic as defined in points (1) and (2) of Article 3. The Directive does not envisage any de minimis threshold for the plastic content in a single-use product to determine whether or not that product is covered by the definition of single-use plastic product; therefore, a qualitative assessment is to be applied.’

27As regards the products concerned (polymeric-coated paper products), the Commission states, in the third subparagraph of point 2.2.1 of the contested guidelines, as follows:

‘When a plastic coating or lining is applied to the surface of a paper- or board-based or other material to provide protection against water or fat, the final product is considered a composite product composed of more than one material of which one is plastic. In this case, the final product is seen as being made partly of plastic. Hence, single-use paper- or board-based products with plastic coating or lining are partly made of plastic and fall within the scope of the Directive … This interpretation is supported by the fact that the exemption for coatings originally included in the Commission proposal through recital 8 no longer appears in the corresponding recital 11 of the Directive, nor elsewhere in the Directive. The co-legislators thereby expressed the intention to not expressly exclude products made from non-plastic materials with plastic coatings and plastic linings from the scope of the Directive …’

28Point 3 of the contested guidelines contains the clarification by the Commission of the relationship between Directive 2019/904 and Directive 94/62/EC of the European Parliament and of the Council of 20 December 1994 on packaging and packaging waste (OJ 1994 L 365, p. 10).

29Point 4 of the contested guidelines, entitled ‘Specific product criteria’, contains, inter alia, the Commission’s analysis of whether certain products fall within the scope of Directive 2019/904 as ‘single-use plastic products’, or are excluded from it.

30In particular, point 4.1 of the contested guidelines concerns ‘food containers’, and Table 4-2 gives examples of certain types of food container which may be considered to fall within the scope of Directive 2019/904 or which are excluded from it.

31Furthermore, point 4.4 of the contested guidelines concerns ‘beverage containers, beverage bottles and cups for beverages (including their caps, covers and lids)’, and Table 4-8 provides examples of cups for beverages which may be considered to fall within or outside the scope of Directive 2019/904.

32It is true that, as the applicant points out, certain passages from the contested guidelines, in particular in points 2.1.2 and 2.2.1, are drafted in somewhat mandatory terms. In particular, in point 2.1.2 of those guidelines, it is stated that, in the context of the definition of the term ‘plastic’, the criterion relating to the capability of the material in question to function as a main structural component of final products ‘is to’ be understood as a generic concept. The first subparagraph of point 2.2.1 of the contested guidelines states that Directive 2019/904 ‘does not envisage’ any de minimis threshold for the plastic content in a single-use product in order to determine whether or not that product is covered by the definition of single-use plastic product and ‘therefore’ a qualitative assessment ‘is to be’ applied. The third subparagraph of point 2.2.1 of the contested guidelines states that single-use paper- or board-based products with plastic coating or lining are partly made of plastic and ‘fall’ within the scope of Directive 2019/904.

33By contrast, other passages of the contested guidelines are drafted in terms which demonstrate their illustrative nature. In particular, point 4.1.2 of the contested guidelines states that Table 4-2 ‘provides some … examples’ of certain types of food containers ‘that may be considered’ to be included or excluded from the scope of Directive 2019/904. Point 4.4.4 of those guidelines states that Tables 4-7 and 4-8 ‘provide a non-exhaustive list of examples to illustrate’ how the different beverage containers, beverage bottles and cups for beverages ‘can’ be assessed.

34However, the mere use of a few isolated terms drafted in a somewhat mandatory fashion does not mean that the contested guidelines are deemed to produce binding legal effects. That handful of terms must be read in the light of the introduction to those guidelines, in which the Commission states explicitly and unequivocally that that document reflects its position and that it is not, as such, legally binding. In order to dispel any doubt, the Commission also states that the binding interpretation of EU legislation falls within the exclusive jurisdiction of the Court of Justice. It must therefore be concluded that examination of the content of the contested guidelines shows that that document is not intended to produce binding legal effects.

As regards, in the second place, the context of the contested guidelines and the powers of their author, namely the Commission, it should be recalled that those guidelines were adopted by that institution in accordance with the mandate conferred on it by the EU legislature in the second paragraph of Article 12 of Directive 2019/904, which provides:

‘By 3 July 2020, the Commission shall publish guidelines, in consultation with Member States, including examples of what is to be considered a single-use plastic product for the purposes of this Directive, as appropriate.’

36The second paragraph of Article 12 of Directive 2019/904 must be read in the light of recital 12 of that directive, which states, first of all, that ‘in order to clearly define the scope of this Directive, the term “single-use plastic product” should be defined’. That definition is given in Article 3(2) of that directive.

37Recital 12 of Directive 2019/904 then states:

‘To further clarify whether a product is to be considered a single-use plastic product for the purposes of this Directive, the Commission should develop guidelines on single-use plastic products.’

38It is thus apparent that the EU legislature entrusted the Commission with the task of adopting ‘guidelines’ intended not to provide a uniform definition at EU level of the term ‘single-use plastic product’, that definition being provided in the legislative act at issue, but to clarify further, by using examples, whether or not a given product should be regarded as a ‘single-use plastic product’ for the purposes of that directive. The Commission carried out that task in the contested guidelines.

39In that context, it should be noted that the Commission, in its analysis, relies on general criteria and product-specific criteria, as laid down in Directive 2019/904, without adding other criteria and without modifying their content.

40Thus, in its analysis in Table 4-2 (see paragraph 30 above), the Commission takes into account, as general criteria, the concepts of ‘plastic’ and ‘single-use’, defined in Directive 2019/904, and, as product-specific criteria, it takes account of the following three criteria: ‘intended for immediate consumption’, ‘typically consumed from the receptacle’ and ‘ready to be consumed without further preparation’. Those three criteria are laid down by Directive 2019/904, as explained in point 4.1.1 of the contested guidelines.

41Similarly, in its analysis set out in Table 4-8 (see paragraph 31 above), the Commission takes into account, as general criteria, the concepts of ‘plastic’ and ‘single-use’ and, as a product-specific criterion, it takes account of whether the cup in question is ‘filled or intended to be filled with a beverage’. As regards the term ‘beverage’, Directive 2019/904 provides, in recital 12, examples of beverages such as beer, wine, water and liquid refreshments.

42By entrusting the Commission with the task of adopting ‘guidelines’ in the abovementioned context, the EU legislature expressed its intention that those guidelines do not produce binding legal effects. That is all the more so since, in the present case, the EU legislature, in accordance with Article 291(2) TFEU, conferred on the Commission the power to adopt implementing acts in certain provisions of Directive 2019/904, in particular in Article 4(2), Article 7(2) and Article 9(3), when it considered that uniform conditions for implementing that directive were necessary. The fact that the EU legislature entrusted the Commission, in the second paragraph of Article 12 of Directive 2019/904, with the task of adopting ‘guidelines’, instead of an implementing act with binding force, is therefore further evidence that the legislature did not intend that the contested guidelines should be binding.

43In the light of those considerations, it must be concluded that the contested guidelines do not constitute a challengeable act as provided for in Article 263 TFEU.

44That conclusion is not called into question by the applicant’s arguments.

45In the first place, the applicant submits that the EU legislature, by means of Article 12 of Directive 2019/904, entrusted the Commission with the task of specifying the meaning of the terms ‘plastic’ (in Article 3(1)) and ‘single-use plastic product’ (in Article 3(2)) and, thus, with defining the scope of that directive. Therefore, the aim of the contested guidelines is to provide a uniform definition at EU level of the scope of Directive 2019/904. In order to arrive at that uniform definition, those guidelines must necessarily be intended to establish a legally binding definition of Article 3(1) and (2) of that directive.

46The applicant adds that, if the contested guidelines did not have binding legal force, they would, like Article 12 of Directive 2019/904, be deprived of any practical effect.

47That argument must be rejected. As has already been noted, the terms ‘plastic’ and ‘single-use plastic product’ are defined at EU level in Article 3(1) and (2) of Directive 2019/904 and the EU legislature merely required the Commission to ‘further clarify’ whether or not a product is to be regarded as a single-use plastic product for the purposes of that directive by means, inter alia, of examples. By contrast, the EU legislature did not entrust the Commission with the task of amending the definitions of those terms in the directive or modifying their scope. Furthermore, it has also been found that the EU legislature, as regards certain provisions of the directive under which it wished to ensure the existence of uniform implementing conditions in the European Union expressly entrusted the Commission with the task of adopting implementing acts with binding legal effects. That was not the case under the second paragraph of Article 12 of Directive 2019/904.

48In that context, the Court must also reject the applicant’s assertion that, if the contested guidelines were not regarded as having binding legal force, they would be deprived of practical effect. Despite the fact that they do not have binding legal force, their practical effect is that they give the Commission the opportunity to present, by way of examples, its interpretation of the main definitions set out in Directive 2019/904 and, thus, to contribute to the uniform transposition of that directive into the domestic law of the Member States.

49In the second place, the applicant relies on the ‘binding’ and ‘unconditional’ language used by the Commission in the contested guidelines in order to interpret the definitions provided in Article 3(1) and (2) of Directive 2019/904. That type of language gives interested parties the impression that those guidelines have binding legal force.

50That argument also cannot be accepted.

51It is clear from the case-law that an act may be regarded as a challengeable act if the parties concerned perceive that act as an act which they must comply with, despite the form or designation favoured by its author (see, to that effect, judgment of 4 March 2015, United Kingdom v ECB, T‑496/11, EU:T:2015:133, paragraph 32).

52However, the drafting of the contested guidelines, which is an important factor in assessing the perception by the parties concerned of the wording of the contested measure (see, to that effect, judgment of 4 March 2015, United Kingdom v ECB, T‑496/11, EU:T:2015:133, paragraph 35), leaves no doubt that they are non-binding. Whatever the language used by the Commission in certain passages of the contested guidelines, those guidelines unequivocally state in their introduction that they reflect the Commission’s position and are not legally binding.

53Furthermore, as the Commission rightly points out, it may be that the contested guidelines have a persuasive effect on the Member States as regards the correct interpretation of Directive 2019/904. However, that is a mere consequence of fact and not a binding legal effect (see judgment of 1 December 2005, Italy v Commission, C‑301/03, EU:C:2005:727, paragraph 30 and the case-law cited).

54In the third place, it is also necessary to reject the applicant’s argument that the publication of the contested guidelines in the C series of the Official Journal of the European Union shows that they are legally binding. In that regard, it is apparent from the case-law that the mere publication of a communication is not sufficient to conclude that it constitutes an actionable measure for the purposes of annulment proceedings (judgments of 20 May 2010, Germany v Commission, T‑258/06, EU:T:2010:214, paragraph 31, and of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraph 49). The publication of an act in one or other series of the Official Journal has no bearing on whether that measure is capable of producing binding legal effects (see, to that effect, order of 27 October 2015, Belgium v Commission, T‑721/14, EU:T:2015:829, paragraph 40 and the case-law cited). Even if such publication could have such a bearing, the fact that the contested guidelines were published in the C series of the Official Journal indicates that that document is not intended to produce legally binding effects, in so far as the purpose of that series, unlike the L series, is not the publication of legally binding measures, but only of information, recommendations and opinions concerning the European Union (see judgment of 13 December 2012, Expedia, C‑226/11, EU:C:2012:795, paragraph 30 and the case-law cited).

55In the fourth place, the applicant submits that the contested guidelines, by including products within the scope of Directive 2019/904, such as the products concerned, which do not expressly fall within that scope, create new obligations which were not laid down by that directive. In that way, the contested guidelines constitute a measure intended to produce binding legal effects. In support of that analysis, the applicant relies on the judgment of 16 June 1993, France v Commission (C‑325/91, EU:C:1993:245, paragraphs 22 and 23).

56That argument must also be rejected. In so far as neither the content nor the context in which the contested guidelines were adopted, nor the Commission’s powers in the present case show that they are intended to produce binding legal effects, it is not necessary to compare their content with the provisions of Directive 2019/904 in order to ascertain whether those guidelines are intended to produce legal effects of their own which are distinct from those of the abovementioned directive (see, to that effect, order of 27 October 2015, Belgium v Commission, T‑721/14, EU:T:2015:829, paragraphs 61 and 62).

57The judgment of 16 June 1993, France v Commission (C‑325/91, EU:C:1993:245), relied on by the applicant, does not support its argument.

58In the judgment of 16 June 1993, France v Commission (C‑325/91, EU:C:1993:245), the Court of Justice held that a communication adopted by the Commission in order to clarify the detailed rules for the application of Commission Directive 80/723/EEC of 25 June 1980 on the transparency of financial relations between Member States and public undertakings (OJ 1980 L 195, p. 35), adopted by the Commission on the basis of Article 106(3) TFEU, constituted an act intended to produce binding legal effects in so far as, by means of that communication, the Commission added new obligations, with regard to the Member States, to the obligations laid down by Directive 80/723 (judgment of 16 June 1993, France v Commission (C‑325/91, EU:C:1993:245, paragraphs 22 and 23).

59The Commission communication which was at issue in the judgment of 16 June 1993, France v Commission (C‑325/91, EU:C:1993:245), was drafted in binding terms, imposing obligations on the Member States, whereas, in the present case, as stated in paragraph 34 above, the drafting of the contested guidelines leaves no doubt as to their non-binding nature. Moreover, the legal basis of the abovementioned communication was not indicated, which, moreover, according to the Court of Justice, constituted an infringement of the principle of legal certainty, whereas, in the present case, it is clear that the contested guidelines were adopted on the basis of the second paragraph of Article 12 of Directive 2019/904, which conferred a power on the Commission to adopt a non-legally binding act.

60In the light of all the foregoing considerations, it must be concluded that the contested guidelines are not intended to produce binding legal effects and therefore do not constitute a challengeable act for the purpose of Article 263 TFEU. Accordingly, the plea of inadmissibility must be upheld and the action dismissed as inadmissible.

61So far as is relevant, it must be stated that the fact that it is impossible to bring an action for the annulment of the contested guidelines does not infringe the principle of effective judicial protection since it is open to the applicant to challenge, before the national court, the lawfulness of the measures adopted by the Member States for the transposition of Directive 2019/904 and that court may, or must, refer questions to the Court of Justice for a preliminary ruling concerning the interpretation of the scope of that directive.

62In so far as the plea of inadmissibility is upheld, there is no need to rule on the applications to intervene submitted by the Kingdom of the Netherlands, the Parliament and the Council (see order of 27 October 2015, Belgium v Commission, T‑721/14, EU:T:2015:829, paragraph 86 and the case-law cited).

Costs

63Under 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.

64Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission, except those relating to the applications to intervene.

65Furthermore, in accordance with Article 144(10) of the Rules of Procedure, the applicant, the Commission, the Kingdom of the Netherlands, the Parliament and the Council are each to bear their own costs relating to the applications to intervene.

On those grounds,

hereby orders:

1.The action is dismissed as inadmissible.

2.There is no need to rule on the applications to intervene made by the Kingdom of the Netherlands, the European Parliament and the Council of the European Union.

3.The European Paper Packaging Alliance shall bear its own costs and shall pay the costs incurred by the European Commission except those relating to the applications to intervene.

4.The European Paper Packaging Alliance, the Commission, the Kingdom of the Netherlands, the Parliament and the Council shall each bear their own costs relating to the applications to intervene.

Luxembourg, 15 September 2022.

Registrar

President

—

Language of the case: English.