How the ceramic tiles sector was assessed in the context of the European Commission’s revision of the 'State Aid Guidelines' for the EU's Emissions Trading Scheme
Υπόθεση 964/2021/SF - Εκκίνηση έρευνας στις Τετάρτη | 21 Ιουλίου 2021 - Απόφαση στις Παρασκευή | 15 Ιουλίου 2022 - Εμπλεκόμενο θεσμικό όργανο Ευρωπαϊκή Επιτροπή ( Εξετάστηκε από δικαστήριο )
Dear Mr X,
In May 2021, you submitted a complaint on behalf of Cerame-Unie to the European Ombudsman against the European Commission. Your complaint concerned the Commission’s procedure for revising the Emission Trading Scheme State aid Guidelines (‘ETS Guidelines’), which no longer include the ceramic tiles and flags subsector.
The Ombudsman opened an inquiry into the lack of transparency of the revision process of the ETS Guidelines and into the steps the Commission took to allow for a meaningful participation of the public and the stakeholders concerned. In this context, she noted that her role as Ombudsman is not to question the Commission’s policy choices or to evaluate scientific studies. Rather, the Ombudsman can inquire only into the administrative activities of EU institutions. She can look at the procedural aspects of the revision of the guidelines and whether and how the Commission considered the data submitted by the stakeholders during the public consultations.
In September 2021, we informed you that there were two actions for annulment pending before the General Court in relation to Annex I of the Communication from the Commission - Guidelines on certain State aid measures in the context of the system for greenhouse gas emission allowance trading post-2021.
As it is our practice to discontinue an inquiry if other bodies better placed to look into the matter are doing so, we asked you for your comments on our intention to discontinue our inquiry into your complaint. In October 2021, you requested that the Ombudsman continue her inquiry. You argued that the issues raised before the General Court and in your complaint are different and pointed out that the pleas brought before the Court concern the Commission’s treatment of the applicants’ sectors only. You also considered that the specific subsector methodology used is not subject of the two legal proceedings.
When the General Court dismissed the two actions for annulment as inadmissible in November 2021, the Ombudsman continued her inquiry and asked the Commission for its written reply to your complaint. In May 2022, the Commission sent its written reply. In it, it informed us that the General Court’s orders to dismiss the actions as inadmissible have been appealed to the Court of Justice. As before, taking into consideration Article 228 TFEU and Articles 1(5) and 2(9) of the Ombudsman’s Statute, we asked for your comments on our intention to terminate the inquiry.
In June 2022, you replied and requested again that the Ombudsman continue her inquiry into your complaint. You pointed out that, in accordance with long-standing EU case-law, it is very probable that the Court of Justice will confirm the General Court’s finding of inadmissibility. Further, you contend that Cerame-Unie is not party to the Court proceedings and that the applicants asked the Court for annulment of Annex I to the extent that it concerns their specific sectors only. You also consider that the Ombudsman is better placed to deal with the issues your raise in your complaint as they concern procedural aspects of the revision process and that, given the fact that the Commission is in the process of revising other guidelines in this field, it is important that those revisions be handled differently.
After a careful analysis of all the information submitted to us, I am sorry to have to tell you that the Ombudsman cannot continue her inquiry into your complaint. In accordance with Article 228 TFEU and Articles 1(5) and 2(9) of the Ombudsman’s Statute, the Ombudsman may not examine complaints where the alleged facts are or have been the subject of legal proceedings. In this regard, we note that the two actions for annulment against Annex I to the Commission’s ETS Guidelines are based, in part, on the same grounds. While the two actions ask for annulment of Annex I to the extent that their sectors are concerned, the pleas before the Court concern, inter alia, the lack of transparency in the revision process and the Commission’s alleged disregard of the data provided during the public consultation. In particular, the applicants argue that the Commission failed to take into account and examine all relevant data and evidence provided without stating reasons. Further, they argue that the Commission failed to disclose the data used in its calculations and failed to provide explanations substantiating its assessment. One applicant also argued that the Commission introduced two additional criteria not provided for in the ETS Directive.
Thus we consider that the issues of this inquiry, namely the lack of transparency and how the Commission considered data provided during the public consultation, are before the Court. There are therefore no grounds for the Ombudsman to continue with her inquiry at this point.
I have therefore closed the case.
I appreciate this may not be your desired outcome but I hope you find these explanations useful. Thank you for having contacted the European Ombudsman.
Director of Inquiries
 Cases T-726/20 Grupa Axoty and Others v Commission and T-741/20: https://curia.europa.eu/juris/liste.jsf?num=T-726/20&language=en, Advansa manufacturing and Others v Commission: https://curia.europa.eu/juris/liste.jsf?num=T-741/20&language=en
 Article 228 TFEU: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012E/TXT&from=EN and Articles 1(5) and 2(9) of the Ombudsman’s Statute: https://www.ombudsman.europa.eu/en/legal-basis/statute/en
 Cases C-73/22 P, Grupa Azoty and Others v Commission: https://curia.europa.eu/juris/liste.jsf?num=C-73/22&language=en, C-77/22 P, Advansa Manufacturing and Others v Commission and Dralon: https://curia.europa.eu/juris/liste.jsf?num=C-77/22&language=en
 Directive 2003/87/EC establishing a system for greenhouse gas emission allowance trading within the Union: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02003L0087-20210101&from=EN