Judgment of the Court (Grand Chamber) of 12 July 2022

– Arguments of the parties

46 By the first part of the first ground of appeal, which refers to paragraphs 106 to 111 of the order under appeal, the appellant submits that the General Court committed an error of law in concluding that the directive at issue did not directly affect its legal situation since it is a directive.

47 In that regard, first, the appellant submits that the General Court’s reasoning in the order under appeal that a directive cannot by itself, before the adoption of transposing measures by the Member State concerned or the expiry of the time limit laid down in that respect, directly affect the legal situation of an operator, is inherently wrong. That approach would preclude any action on the basis of the fourth paragraph of Article 263 TFEU against a directive, since, in practice, the time limit for bringing an action would systematically expire prior to the adoption of the necessary transposing measures. By relying on that reasoning, the General Court failed to apply the case-law, which was however cited in paragraph 78 of the order under appeal, pursuant to which the fact that an act was adopted in the form of a directive is not in itself sufficient to exclude the possibility of its provisions being of direct and individual concern to a private party.

48 Secondly, the appellant submits that the fact, relied on by the General Court in paragraph 111 of the order under appeal, that, at the date on which the action was brought, the directive at issue had not yet been transposed by the Federal Republic of Germany was irrelevant. According to the appellant, whether a person’s legal situation is directly affected by a directive depends on the content of that directive and not on the possible adoption of measures transposing that directive. In that regard, the appellant adds that the condition for admissibility that an applicant must be directly concerned by the act being challenged, within the meaning of the fourth paragraph of Article 263 TFEU, is identical whether the second or the third limb of that provision is concerned, which necessarily means that the condition requiring that the contested act ‘does not entail implementing measures’, within the meaning of the third limb of the fourth paragraph of Article 263 TFEU, is subject to an additional condition, separate from that condition of admissibility.

49 Thirdly, the appellant submits that, at the date on which it brought its action for annulment, the effect of the directive at issue was that it would become subject to the rules under Directive 2009/73, whereas it was not covered by those rules before its adoption. That change in legal status has profound and serious legal effects for the appellant. Where the Member States concerned are not left with any discretion with respect to the implementation of an EU measure, as is the case here, the time period for Member State transposition is akin to a mere temporal delay to the measure becoming fully applicable.

50 Lastly, fourthly, the appellant considers that there was nothing that could lead the General Court to suggest, as it appears to have considered in paragraph 109 of the order under appeal, that to acknowledge that the appellant was directly affected by the directive at issue would result in enabling every operator to challenge every legislative measure that imposed new obligations on it, since the main restriction that prevents the ‘opening the floodgates’ in relation to legislative measures is the condition for admissibility according to which an applicant must be individually concerned by the measure being challenged by its action.

51 By contrast, the Parliament and the Council subscribe to the General Court’s reasoning.

52 According to the Parliament, the General Court was correct to hold that a directive, including the directive at issue, could not, by itself, prior to the adoption of transposing measures or the expiry of the time limit prescribed to that end, directly affect the legal situation of an operator, for the purposes of the fourth paragraph of Article 263 TFEU.

53 In addition, the Parliament considers that the appellant’s argument that the time limit for transposition of the measure in question is akin to a ‘mere temporal delay to the measure becoming fully applicable’ is incorrect. That argument rests on the premiss that that measure would, generally, be capable of directly affecting the legal situation of an applicant, which is not the case.

54 Furthermore, the Parliament shares the General Court’s analysis that to uphold the appellant’s submission would have the consequence of depriving the condition that an applicant must be directly concerned by the measure which is the subject of its action of any effectiveness. Every new piece of legislation would thus directly concern every natural or legal person active in the field that it governs.

55 The Council submits that the appellant’s argument rests on a misreading of the order under appeal, in so far as the General Court did not hold that the fact that the measure at issue took the form of a directive was in itself sufficient to exclude the possibility of the appellant’s legal situation being directly affected by the directive at issue. On the contrary, the General Court concluded, as it was fully entitled to do, that the directive at issue did not directly affect the appellant’s situation, since the German regulatory authority, the Bundesnetzagentur (Federal Network Agency, Germany) could not, in the absence of the adoption by the Federal Republic of Germany of measures transposing the directive at issue, require the appellant to comply with the obligations laid down in that directive.

56 Furthermore, according to the Council, the directive at issue, as a directive within the meaning of third paragraph of Article 288 TFEU, could not in itself be enforced against private individuals, which the appellant does not moreover contest.

57 The Council adds that, first, there is no support in the case-law for the interpretation advanced by the appellant according to which the condition that an applicant’s legal situation must be directly affected by the measure which forms the subject matter of its action must be examined having regard to the substance of the measure at issue. Second, the condition relating to acts which ‘[do] not entail implementing measures’ only applies to regulatory acts for the purposes of the third limb of the fourth paragraph of Article 263 TFEU. The latter condition cannot therefore alter the condition that an applicant must be directly concerned by the measure that forms the subject matter of the action for the purposes of the second limb of the fourth paragraph of Article 263 TFEU.

58 The Estonian, Latvian and Polish Governments support, in essence, the arguments relied on by the Parliament and the Council.

59 The Polish Government adds that, first, Directive 2009/73 was already applicable to the Nord Stream 2 gas pipeline before the adoption of the directive at issue, the latter merely laying down the practical arrangements for the transposition and implementation of Directive 2009/73 as regards gas pipelines such as the Nord Stream 2 pipeline.

60 Second, according to that government, the condition that an applicant must be directly affected by the measure which forms the subject matter of its action must be satisfied on the date on which the action is brought, which was necessarily absent in the present case. It is common ground that the Nord Stream 2 gas pipeline was not completed either at the date of entry into force of the directive at issue or at the date on which the action brought by the appellant was lodged.

– Findings of the Court

61 The first part of the first ground of appeal relates to whether the General Court erred in law in finding that the directive at issue did not produce direct effects for the appellant’s legal situation and, therefore, the first of the two conditions set out in the case-law recalled in paragraph 43 of this judgment is not satisfied.

62 In the first place, it should be recalled that it is settled case-law that the action for annulment provided for in Article 263 TFEU is available in the case of all measures adopted by the institutions, whatever their form, which are intended to have binding legal effects (judgment of 3 June 2021, Hungary v Parliament , C‑650/18, EU:C:2021:426, paragraph 37 and the case-law cited).

63 In order to determine whether an act produces such effects and may, accordingly, form the subject matter of an action for annulment under Article 263 TFEU, it is necessary to examine the substance of that act and to assess those effects in the light 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 institution which adopted the act (judgment of 3 June 2021, Hungary v Parliament , C‑650/18, EU:C:2021:426, paragraph 38 ).

64 Accordingly, whether an act is capable of directly affecting the legal situation of a natural or legal person cannot be assessed with regard solely to the fact that that act takes the form of a directive.

65 Notwithstanding the fact that the General Court underlined, in paragraph 78 of the order under appeal, that the fact that the action had been brought against a directive was not a sufficient ground in itself for declaring the action inadmissible, it nevertheless appears, in the next part of its reasoning, in particular in paragraphs 106 and 107 of the order under appeal, that in order to reach the conclusion that the directive at issue did not directly affect the appellant’s legal situation the General Court principally relied on the fact that a directive cannot, in itself, create obligations for an individual or be the direct and immediate source of such obligations, in the absence of transposing measures.

66 In that regard, as the appellant correctly submits, to the extent that all directives are characterised by their lack of capacity, in themselves, to impose obligations on individuals or to be relied upon against individuals (see, to that effect, judgment of 7 August 2018, Smith , C‑122/17, EU:C:2018:631, paragraph 42 and the case-law cited), the reasoning adopted by the General Court involved categorically excluding the possibility that directives may directly affect the legal situation of individuals and, thereby, form the subject matter of an action pursuant to the fourth paragraph of Article 263 TFEU.

67 That approach ultimately results – in breach of the approach set out in paragraphs 63 and 64 of this judgment – in according primary importance, for the purpose of examining the condition that the measure that forms the subject matter of the action must directly affect the legal situation of an applicant, to the form of the measure at issue, namely that of a directive, over the substance of that measure.

68 In the second place, the same applies to the General Court’s reasoning in paragraphs 110 and 111 of the order under appeal, according to which, as a general rule, an individual’s legal situation is affected not by a directive but only by the measures transposing that directive, whereas, on the date on which the action for annulment was lodged, no such measures had been adopted by the Member State concerned, in this case the Federal Republic of Germany.

69 It is true that, according to a settled line of case-law, each of the Member States to which a directive is addressed is obliged to adopt, within the framework of its national legal system, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective that it pursues (judgment of 8 May 2008, Danske Svineproducenter , C‑491/06, EU:C:2008:263, paragraph 28 ).

70 However, to uphold the approach of General Court as set out in paragraph 68 of this judgment would equally result in a finding that directives could never directly affect the legal situation of individuals, since those effects would always be connected with the measures adopted with a view to transposing them and not to the directives themselves.

71 Furthermore, the same paragraphs of the order under appeal disregard the distinction that must be made between the condition that the act which forms the subject matter of the action must directly concern an applicant and the condition that such an act must not entail implementing measures, which appears in the third limb of the fourth paragraph of Article 263 TFEU.

72 Thus, the third limb of that paragraph, which concerns the right to bring actions against regulatory acts, imposes both the condition that an applicant must be directly concerned by the act which forms the subject matter of its action and the condition requiring that, for the action to be admissible, those acts do not entail implementing measures, the second condition accordingly being added to the first and therefore not to be confused with it.

73 As the condition that an applicant must be directly concerned by the act being challenged appears, in identical terms, both in the second limb of the fourth paragraph of Article 263 TFEU and in the third limb of that provision, it must have the same meaning for each of those limbs of that provision. The objective assessment of that condition cannot vary depending on which of the different limbs of that provision is being considered.

74 Consequently, any act, whether regulatory or another type of act, may, in principle, directly concern an individual and thus directly affect its legal situation, irrespective of whether it entails implementing measures, including, in the case of a directive, transposing measures. Accordingly, in a case where the directive in question has such effects, the fact that measures transposing that directive have been adopted or have yet to be adopted is not, in itself, relevant since they do not call into question the direct nature of the connection between that directive and its effects, provided that that directive does not leave any discretion to the Member States as to the imposition of those effects on that individual. That latter condition is the subject of the assessment of the second part of the first ground of appeal.

75 In the third place, as regards the examination of whether the directive at issue was capable of directly affecting the appellant’s legal situation, in accordance with the criteria set out in paragraph 63 of this judgment, it must be observed that the directive at issue, by extending the scope of application of Directive 2009/73 to interconnectors located between the Member States and third countries, such as the interconnector that the appellant intends to operate, has the consequence of subjecting the operation of that interconnector to the rules laid down in that directive, thus rendering applicable to the appellant the specific obligations that it lays down on that matter, including, inter alia, those relating to the unbundling of transmission systems and transmission system operators, pursuant to Article 9 of Directive 2009/73, and those relating to the regime of third-party access to the system based on published tariffs approved by the regulatory authority concerned or calculated on the basis of methods approved by that authority, laid down in Article 32 of Directive 2009/73.

76 In that regard, as held in paragraph 74 of this judgment, it is irrelevant, in itself, that the implementation of those obligations requires the adoption of transposing measures by the Member State concerned, in the present case the Federal Republic of Germany, to the extent that that Member State has no discretion, as regards those transposing measures, capable of preventing those obligations from being imposed on the appellant. In the absence of such discretion, those transposing measures do not call into question the direct nature of the link between the directive at issue and the imposition of those obligations.

77 Having regard to the foregoing considerations, it must be held that the General Court erred in law in holding that the directive at issue did not directly affect the legal situation of the appellant.

78 It is necessary also to reject the arguments of the Polish Government that seek to demonstrate that the appellant was not directly concerned by the directive at issue for reasons other than those given by the General Court in the order under appeal.

79 Thus, first, as regards the argument that Directive 2009/73 already applied, before the entry into force of the directive at issue, to interconnectors such as that of the appellant, that argument is, in any event, clearly contradicted both by the object of the latter directive, as set out in recitals 3 and 4 thereof, and by the amendment of the definition of the concept of ‘interconnector’ laid down in Article 2(17) of Directive 2009/73.

80 Second, contrary to the submission made by the Polish Government, the fact that the directive at issue directly affects the legal situation of the appellant also cannot be ruled out on the ground that the appellant’s interconnector had not yet been completed either at the date of entry into force of that directive or at the date on which the action against it was lodged. The appellant had, at the time of the adoption and entry into force of that directive, already made substantial investments with a view to the construction of that interconnector, which was at an advanced stage. Furthermore, Directive 2009/73, in particular Article 36 thereof, which permitted, subject to conditions, the granting of an exemption for gas infrastructure projects, specifically takes into account the possibility that new gas pipelines may be constructed and consequently is intended also to govern possible gas pipelines that are planned but not yet completed.

81 In those circumstances, the first part of the first ground of appeal must be upheld.

– Arguments of the parties

82 By the second part of the first ground of appeal, which refers to paragraphs 111 to 115 of the order under appeal, the appellant submits that the General Court committed an error of law in concluding that the directive at issue accorded discretion to the Member States.

83 The appellant submits, first, that the approach taken by the General Court in that regard is wrong to the extent that it carried out a general assessment, without the extent to which the appellant’s legal situation was directly affected by the directive at issue having been specifically examined having regard to the subject matter of its action, in accordance with the case-law resulting from the judgments of 19 December 2013, Telefónica v Commission (C‑274/12 P, EU:C:2013:852, paragraphs 30 and 31 ), and of 27 February 2014, Stichting Woonpunt and Others v Commission (C‑132/12 P, EU:C:2014:100, paragraphs 50 and 51 ).

84 The appellant submits, secondly, as regards the unbundling obligations to which it would be subject following the entry into force of the directive at issue, that, while it is true that Directive 2009/73 accords Member States the possibility of introducing other solutions than that of full ownership unbundling, the two alternative models that could be relevant in this case, namely the ‘independent system operator’ model and the ‘independent transmission operator’ model, would, in the same way as full ownership unbundling, have a considerable negative impact on its legal situation. The same applies as regards the rules on third-party access and on the regulation of tariffs which would, in any event, apply to it. Accordingly, the appellant submits, in the words of the judgment of 13 March 2008 Commission v Infront WM (C‑125/06 P, EU:C:2008:159 ), the prejudice to its legal situation is due to the directive at issue, to Directive 2009/73 which it amends, and, in particular, to the requirement to attain the result laid down by those directives.

85 Thirdly, the appellant submits, regarding the existence of the possible discretion that the Member State concerned has in the context of implementing the exemptions and derogations provided for in Articles 36 and 49a of Directive 2009/73, that that discretion should have been assessed by reference to its specific position and the subject matter of its action, which referred essentially to Article 49a of Directive 2009/73 introduced by the directive at issue. As regards the derogation laid down in that latter provision, by restricting it to gas transmission lines ‘completed before 23 May 2019’, the EU legislature wished to leave no discretion to the Federal Republic of Germany, the date of that restriction having been chosen in order to exclude the appellant from benefiting from that derogation. Similarly, it is common ground that its pipeline is not eligible for the exemption provided for in Article 36 of Directive 2009/73, without the German authorities having any discretion in that regard.

86 By contrast, the Parliament and the Council subscribe to the General Court’s reasoning.

87 The Parliament submits that, first, as the case-law flowing from the judgment of 27 February 2014, Stichting Woonpunt and Others v Commission (C‑132/12 P, EU:C:2014:100 ), cited by the appellant, concerns regulatory acts and not legislative acts, that case-law cannot call into question the restrictive approach that prevails as regards actions by individuals against legislative acts.

88 Secondly, in the Parliament’s view, the wording of the directive at issue leaves Member States a wide discretion, in particular in Article 9(8) and (9) of Directive 2009/73 and in Article 49a thereof. In that context, it is necessary to examine all of the provisions of the directive at issue and not only the possibility of obtaining a derogation pursuant to Article 49a of Directive 2009/73.

89 Thirdly, the judgment of 13 March 2008, Commission v Infront WM (C‑125/06 P, EU:C:2008:159 ), cited by the appellant concerned a case in which, unlike the present case, the contested act did not leave any discretion to the national authorities.

90 The Council submits, first, that the appellant’s action was directed against the directive at issue as a whole, with the result that the discretion left to the Member States should have been analysed in the light of the directive as a whole.

91 Secondly, the Council submits that the argument that there was no doubt as to the manner in which the Federal Republic of Germany would transpose the directive at issue is fundamentally flawed. According to the Council, the Court of Justice held, in the judgment of 4 December 2019, Polskie Górnictwo Naftowe i Gazownictwo v Commission (C‑342/18 P, not published, EU:C:2019:1043 ), that Article 36 of Directive 2009/73 accords the national regulatory authorities discretion for the purposes of granting exemptions from the rules laid down by that directive. The same logic applies, it submits, to the derogation provided for in Article 49a of that directive.

92 Thirdly, according to the Council, the General Court was also correct to conclude that the appellant’s legal and factual situation was not comparable to the situation in the case that gave rise to the judgment of 13 March 2008, Commission v Infront WM (C‑125/06 P, EU:C:2008:159 ). By contrast with the contested act in that case, the directive at issue, by its form and its content, is a ‘typical’ directive, for the purposes of the third paragraph of Article 288 TFEU, that is to say that it is ‘binding, as to the result to be achieved, upon each Member State to which it is addressed’ but that it leaves ‘to the national authorities the choice of form and methods’. There is therefore no causal link between the directive at issue and the effects produced on the legal situation of the appellant.

93 The Estonian, Latvian and Polish Governments support, in essence, the arguments relied on by the Parliament and the Council.

– Findings of the Court

94 The second part of the first ground of appeal concerns the question whether the General Court erred in law in finding that the directive at issue leaves discretion to the Member States in the context of its implementation, in accordance with the second of the two conditions set out in the case-law recalled in paragraph 43 of this judgment.

95 In the first place, first, it follows from the finding made in paragraph 63 of this judgment that the question whether an act leaves discretion to the addressees responsible for its implementation must be examined by reference to the substance of that act.

96 Second, the mere fact that the act being challenged must be the subject of implementing measures, including, as regards a directive, transposing measures, for the purposes of its implementation does not necessarily mean that there is a discretion as regards the addressees of that act, as has been observed in paragraph 74 of this judgment.

97 In the second place, where, as in the present case, a given act is capable of producing a variety of legal effects depending on the various situations to which it is intended to apply, the existence of discretion must necessarily be assessed with regard to the specific legal effects referred to in the action and that it may actually have on the legal situation of the person concerned.

98 Thus, in order to assess whether an act leaves its addressees discretion with a view to its implementation, it is necessary to examine the legal effects produced by that act’s provisions, as referred to in the action, on the situation of the person pleading the right to bring proceedings, pursuant to the second limb of the fourth paragraph of Article 263 TFEU (see, by analogy, judgments of 27 February 2014, Stichting Woonpunt and Others v Commission , C‑132/12 P, EU:C:2014:100, paragraphs 50 and 51 , and of 13 March 2018, European Union Copper Task Force v Commission , C‑384/16 P, EU:C:2018:176, paragraphs 38 and 39 ).

99 Contrary to the submissions made by the Parliament and the Council, that is also the case in a situation where the action refers, formally, to the act in question as a whole, if the pleas in law raised in support of that action make it possible to establish that the subject matter of that action in fact concerns specific aspects of that act.

100 In the third place, it must be observed that, in order to substantiate its argument that the lack of discretion left to Member States by the directive at issue as regards the effects produced by that directive on its legal situation, the appellant submitted in its action, in essence, that the directive at issue had the effect, following the amendment that it makes to the definition of ‘interconnector’ laid down in Article 2(17) of Directive 2009/73, of subjecting it to specific obligations under that directive relating to the unbundling of transmission systems and transmission system operators, provided for in Article 9 of that directive, and to the obligations relating to third-party access and the regulation of tariffs, laid down in Article 32 of that directive, without it having the possibility of benefiting from an exemption or derogation from those rules under either Article 36 or Article 49a of Directive 2009/73, as inserted by the directive at issue.

101 Therefore, it is with regard to those provisions and the specific legal situation of the appellant that it must be assessed whether, following the adoption and entry into force of the directive at issue, Directive 2009/73 leaves the Federal Republic of Germany discretion with a view to the implementation of those provisions and, in particular, their application to the appellant.

102 In that respect, as regards, first, the exemptions and derogations provided for in Articles 36 and 49a of Directive 2009/73, the General Court recalled, in paragraphs 114 and 115 of the order under appeal, the existence of those possibilities of exemption or derogation, whilst stating that the national regulatory authorities had, for the purposes of implementing the derogation provided for in Article 49a, a wide discretion as regards the grant of such a derogation.

103 In so doing, the General Court however failed to examine, by taking into account the appellant’s situation and by having regard to the substance of those exemptions and derogations, whether they were capable of applying to the appellant’s situation and whether the directive at issue left the Member State concerned a margin of discretion in its implementation as regards the appellant.

104 As regards the existence of such a discretion in respect of the exemptions and derogations laid down in Articles 36 and 49a of Directive 2009/73, it must be held, as the Advocate General also observed, in essence, in points 74 and 75 of his Opinion, that it was not possible to apply any of the exemptions or derogations to the appellant’s situation, since, first, the investments for the Nord Stream 2 gas pipeline had already been decided at the date of the adoption of the directive at issue, which excluded that pipeline from the benefit of an exemption under Article 36 of Directive 2009/73, which applies to major new gas infrastructures or to significant increases of capacity in existing infrastructure, and, second, at that date, it was clear that that pipeline could not be completed by 23 May 2019, thus preventing the grant of a derogation under Article 49a of that directive.

105 In those circumstances, while it is true that the Member States enjoy a margin of discretion in relation to the grant of such exemptions and derogations to gas undertakings that meet the conditions laid down in Articles 36 and 49a of Directive 2009/73 respectively, they do not however have any discretion as regards the possibility of granting those exemptions or derogations to the appellant, which does not satisfy those conditions. Therefore, there is a direct link between the entry into force of the directive at issue and the imposition, by the latter, on the appellant of the obligations laid down by Directive 2009/73 referred to in paragraph 75 of this judgment.

106 Secondly, accordingly, it is necessary to examine whether the Member State concerned enjoyed, as regards the appellant, a discretion for the purposes of determining the result to be achieved capable of having the consequence that the appellant would nevertheless avoid those obligations.

107 In that respect, as regards the unbundling obligation laid down in Article 9 of Directive 2009/73, the General Court found, in paragraph 112 of the order under appeal, that the Member States have, under certain conditions, the possibility, under points (a) and (b) of the second subparagraph of Article 9(8) and under Article 9(9) of that directive, of not applying that obligation, including to interconnectors such as the Nord Stream 2 gas pipeline. In such a case, those Member States must, instead of unbundling the structures of ownership and of supply and production, designate either an independent system operator under Article 14 of that directive, or an independent transmission system operator. The Member States therefore have, according to the General Court, a discretion in that regard.

108 That finding does not however suffice to establish the existence of a discretion for the national authorities as regards the unbundling obligation laid down in Article 9 of Directive 2009/73.

109 It follows from recital 13 of Directive 2009/73 that, while the two alternative options offered as regards the unbundling obligation laid down in Article 9(1) of that directive should ‘enable a vertically integrated undertaking to maintain its ownership of network assets’, it should nonetheless ‘[ensure] an effective separation of interests’, with the independent system operator or the independent transmission operator being required to ‘[perform] all the functions of a system operator’ and be subject to ‘detailed regulation and extensive regulatory control mechanisms’.

110 It follows that, as the Advocate General also observed, in essence, in points 80 and 81 of his Opinion, that whichever option were finally chosen from amongst those referred to in paragraph 107 of this judgment, the legal situation of the appellant will inevitably be changed, as Article 9 of Directive 2009/73 only offers Member States the choice of means by which the clearly defined result, namely that of the effective separation of the structures of transmission and those of supply and production, must be achieved. Thus, even though the Member States are not deprived of all room for manoeuvre in implementing Article 9, they do not have any discretion as regards the unbundling obligation laid down in that provision, such that the appellant cannot avoid it, irrespective of which one of the three methods provided for by that provision is chosen.

111 The same applies as regards the obligations flowing from Article 32 of Directive 2009/73, read together with Article 41(6), (8) and (10) thereof. Those obligations require the transmission system operators subject to that directive, inter alia, to grant third parties access to their system on the basis of a regime that is applied objectively and without discrimination, and based on published tariffs that are proportionate and approved by the competent regulatory authority. That authority must, in the context of approving those tariffs, inter alia, provide for appropriate incentive measures to encourage operators to improve their performance.

112 While the practical realisation of those obligations requires the adoption, in particular by the national regulatory authorities, of measures of a technical nature, it remains the case that those measures cannot alter the result that those obligations entail, namely that the transmission system operators guarantee to third parties access without discrimination to that system under the conditions laid down by Directive 2009/73, with the aim of ensuring that all actors on the market have effective access to that market.

113 In that regard, the General Court was also wrong to hold, in paragraph 117 of the order under appeal, that the appellant could not rely on the judgment of 13 March 2008, Commission v Infront WM (C‑125/06 P, EU:C:2008:159 ). Even though the case that gave rise to that judgment may be distinguished from the present case in that it concerned the legal effects produced by a decision adopted by the Commission pursuant to a directive, it remains the case that the binding force of that decision resulted, ultimately, from that directive and that, in any event, that decision determined, in the same way as the provisions of the directive at issue referred to in paragraphs 110 and 111 of this judgment, the result to be achieved with regard to which the Member States do not have any discretion.

114 Consequently, the General Court erred in law in finding that the directive at issue accorded a discretion to the Member States, without taking into account the appellant’s situation and the fact that the entry into force of the directive at issue had had the direct consequence of subjecting the latter to obligations the result of which could not be changed. In those circumstances, the second part of the first ground of appeal must equally be upheld.

115 Having regard to the forgoing considerations, it must be concluded that the first ground of appeal is well founded, as the General Court wrongly held that the appellant was not directly concerned by the directive at issue. It follows that point 4 of the operative part of the order under appeal must be set aside since, in that point, the action brought by the appellant was rejected as inadmissible for that reason.