CELEX: 62012TJ0317
Non-contractual liability
Scheme for greenhouse gas emission allowance trading
Liability for fault
Commission’s refusal to disclose information on and to prohibit all transactions involving emission allowances allegedly stolen
Sufficiently serious breach of a rule of law conferring rights on individuals
Strict liability

Background to the dispute
I –
The commitments resulting from the Kyoto Protocol
The United Nations Framework Convention on Climate Change was signed, on behalf of the European Economic Community, on 13 June 1992. It was approved, on behalf of the Community, by Council Decision 94/69/EC of 15 December 1993 concerning the conclusion of the United Nations Framework Convention on Climate Change (
OJ 1994 L 33, p. 11
) and entered into force, with regard to it, on 21 March 1994.
On 29 April 1998, the Kyoto Protocol to the United Nations Framework Convention on Climate Change (‘the Kyoto Protocol’) was signed on behalf of the Community. That protocol was approved on behalf of the Community by Council Decision 2002/358/EC of 25 April 2002 (
OJ 2002 L 130, p. 1
).
Article 3(1) of the Kyoto Protocol provided that, in respect of the period 2008 to 2012, the States and international organisations included in Annex I to the United Nations Framework Convention on Climate Change must each ensure that their aggregate anthropogenic emissions of certain greenhouse gases do not exceed a certain amount, referred to as the ‘assigned amount’. The Community was one of the international organisations thus included, and was succeeded by the European Union under the third paragraph of Article 1 TEU as amended by the Lisbon Treaty.
The assigned amount, referred to in Article 3(1) of the Kyoto Protocol, was expressed in tonnes of carbon dioxide equivalent, one tonne being equivalent to one ‘assigned amount unit’ (AAU). During the period 2008 to 2012, as a supplement to actions for the purpose of meeting quantified emission limitation and reduction commitments, each State and international organisation included in Annex I to the Kyoto Protocol could vary its assigned amount, so that it was not less than its actual emissions. Different options were open to it. In the first place, additional AAUs could be obtained from third States, in accordance with Article 17 of the Kyoto Treaty. In the second place, units of a different type could be generated, first, by ‘direct human-induced land-use change and forestry activities, limited to afforestation, reforestation and deforestation’ (‘removal units’, or RMUs, referred to in Article 3(3) of the Kyoto Protocol) and, secondly, by certain projects seeking to reduce greenhouse gas emissions implemented in other States. That last category of units covered two sub-categories, namely ‘emission reduction units’ (ERUs, referred to in Article 6 of the Kyoto Protocol) and certified emission reductions (CERs, referred to in Article 12 of the Kyoto Protocol). AAUs, ERUs, CERs and RMUs (together ‘the Kyoto units’) each corresponded to one tonne of carbon dioxide equivalent.
On 30 November 2005, the Conference of the Parties to the United Nations Framework Convention on Climate Change serving as the meeting of the Parties to the Kyoto Protocol adopted Decision 13/CMP.1. The annex to that decision sets out the ‘[m]odalities for the accounting of assigned amounts’.
II –
The legislation adopted, within the European Union, in order to implement the Kyoto Protocol
Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (
OJ 2003 L 275, p. 32
) was adopted on 13 October 2003. That directive sought, according to recital 5 thereof, to ‘contribute to fulfilling the commitments [resulting from the Kyoto Protocol] more effectively’. Article 19(3) of that directive provided that ‘[i]n order to implement this Directive, the Commission shall adopt a Regulation … for a standardised and secured system of registries in the form of standardised electronic databases containing common data elements to track the issue, holding, transfer and cancellation of allowances, to provide for public access and confidentiality as appropriate and to ensure that there are no transfers incompatible with obligations resulting from the Kyoto Protocol’.
In accordance with that provision, the Commission of the European Communities adopted, on 21 December 2004, Regulation (EC) No 2216/2004 for a standardised and secured system of registries pursuant to Directive 2003/87 and Decision No 280/2004/EC of the European Parliament and of the Council (
OJ 2004 L 386, p. 1
).
A –
Greenhouse gas emission allowances created by European Union (
‘EU
’) legislation
Directive 2003/87 established the concept of the ‘greenhouse gas emission allowance’ (‘allowance’ or ‘emission allowance’). Under Article 3(a) of that directive, an allowance ‘[allows] one tonne of carbon dioxide equivalent [to be emitted] during a specified period’.
There is a relationship between allowances, on the one hand, and certain Kyoto units, on the other, even though they are different in nature.
First, the first and second paragraphs of Article 45 of Regulation No 2216/2004 provide that an emission allowance, which may be held by a natural or legal person, is obtained by a ‘conversion’ of an AAU, that conversion taking place by adding the term ‘allowance’ to the unique unit identification code of the AAU.
Secondly, Article 11a of Directive 2003/87, inserted by Directive 2004/101/EC of the European Parliament and of the Council of 27 October 2004 amending Directive 2003/87 (
OJ 2004 L 338, p. 18
), offers, subject to various reservations, certain natural and legal persons the possibility of obtaining emission allowances ‘in exchange’ for CERs or ERUs.
B –
Issue and surrender of allowances
In accordance with Article 11(2) and (4) of Directive 2003/87, during the five-year period beginning on 1 January 2008, the competent authority of the Member State concerned is to issue, for each year, to the operator of an installation coming within one of the sector of activities listed in Annex I to that directive a certain number of greenhouse gas emission allowances. The allowances must be issued by 28 February of the year in question (year N).
Under Articles 14 and 15 of Directive 2003/87, during calendar N, the emissions from each installation are monitored and verified.
Under Article 12(3) of Directive 2003/87, by 30 April of year N+1 at the latest, the operator of an installation must surrender a number of allowances equal to the total emissions from that installation during the calendar year N.
As is apparent from Directive 2003/87, four situations may then arise. First, if an operator has, on 30 April of the year N+1, an amount of allowances greater than the total emissions from its installation during the year N, it may retain those excess allowances or sell them. Secondly, when an operator has an amount of allowances equal to the total emissions from its installations, it no longer has any allowance in respect of that installation once its surrender obligations have been complied with. Thirdly, when an operator notes that the emissions from its installation are greater than its allowances in respect of that installation, it may obtain allowances before 30 April of the year N+1 in order to comply with its surrender obligations. Fourthly, under Article 16(3) of Directive 2003/87, if, by 30 April of the year N+1, an operator has not surrendered sufficient allowances to cover its emissions during the year N, it must pay an excess emissions penalty. The excess emissions penalty will be EUR 100 for each tonne of carbon dioxide equivalent emitted by that installation for which the operator has not surrendered allowances. Notwithstanding the payment of the excess emissions penalty, the operator must still surrender, on 30 April N+2, an amount of allowances equal to those excess emissions for the year N. Consequently, in practice, the operator finding itself in such a situation must obtain additional emission allowances before 30 April N+2.
Ultimately, those different possibilities create the conditions for the emergence of an allowance market.
C –
The detailed rules governing the operation of the allowance trading scheme
Three categories of provision deserve special attention.
First, Article 19(1) of Directive 2003/87 provides that the Member States must establish registries ‘in order to ensure the accurate accounting of the issue, holding, transfer and cancellation of allowances’. Article 19(2) states that those registries are to contain ‘separate accounts’ designed ‘to record the allowances held by each person to whom and from whom allowances are issued or transferred’. Article 3(1) of Regulation No 2216/2004 states that, in each Member State, registries are to be in the form of a ‘standardised’ electronic database. Article 3(2) of that regulation adds that the registries are to incorporate ‘hardware and software’ and be accessible via the Internet. Article 3(3) states, lastly, that, the registries must, inter alia, be capable of executing correctly all the processes concerning, first, verified emissions and, secondly, the accounts of natural or legal persons holding allowances.
Secondly, Article 20(1) of Directive 2003/87 provides that the Commission is to designate a central administrator to maintain ‘an independent transaction log recording the issue, transfer and cancellation of allowances’.
Article 5(1) of Regulation No 2216/2004 adds that that log, also known as the ‘Community independent transaction log’ is to be established by the Commission in the form of a ‘standardised’ electronic database. Article 5(2) provides that that log is to incorporate ‘hardware and software’ and be accessible via the Internet. Lastly, Article 5(5) of Regulation No 2216/2004 in the version resulting from Commission Regulation No 916/2007 of 31 July 2007 amending Regulation No 2216/2004 (
OJ 2007 L 200, p. 5
), states that the central administrator that maintains the log must perform processes concerning allowances, verified emissions or accounts only where necessary to carry out its functions. Finally, it is apparent from Regulation No 2216/2004 that the Community independent transaction log constitutes a database which, first, consolidates the data originating from national registries and secondly, enables transactions between different registries to be identified.
Thirdly, Article 10(1) of Regulation No 2216/2004 establishes rules on confidentiality. It provides:
‘All information, including the holdings of all accounts and all transactions made, held in the registries and the Community independent transaction log shall be considered confidential for any purpose other than the implementation of the requirements of this Regulation, Directive 2003/87/EC or national law.’
III –
Events prior to the bringing of the action
The applicant, Holcim (Romania) SA, belongs to the Holcim group, which specialises in the production of cement, aggregates, asphalt and ready-mixed concrete. It has emission allowance accounts at the Romanian registry.
According to the applicant, on 16 November 2010, an unauthorised person unlawfully accessed those accounts. The applicant claims that as a result of that unlawful access, one million allowances belonging to it were unlawfully transferred to an account in Italy and 600 000 allowances transferred to Liechtenstein. At the date when the action was brought, the 600000 allowances diverted to Liechtenstein had been recovered. That was not the case for the one million allowances. According to the applicant, the one million allowances stolen (and not recovered when the action was brought) were worth ‘about EUR 15 000 000’ at the material time.
By letter of 24 November 2010, the applicant officially notified the incident to the Commission and asked it to ‘request ... the National Registries to freeze’ the emission allowances allegedly stolen and ‘block the ... accounts’ through which the allowances had passed.
By letter of 25 November 2010, the applicant lodged a complaint with the Romanian public prosecutor.
By letter of 2 December 2010, the law firm instructed by the applicant asked the Commission to ‘suspend and refuse access to [the] accounts’ through which the allowances allegedly stolen had passed. It also called on the Commission to ‘request the national registries, which do not comply with the standard banking IT security requirements, to stop any transfers of [emission allowances] until such IT security measures have been implemented’.
By letter of 14 December 2010, the competent Head of Unit of the Commission answered the letter of 2 December 2010 in the following terms:
‘…
As regards your request to suspend and refuse access to relevant accounts, our view is that the recovery of any allowances which are claimed to have been transferred fraudulently is a matter for national law and national law enforcement authorities. The Commission has no powers to block any such allowances in a registry account.
As regards transactions with allowances, please note that this information is pursuant to Article 10 and Annex XVI of Regulation [No 2216/2004] confidential for five years. Notwithstanding this provision, the Commission does co-operate with relevant law enforcement authorities to solve the [issue of] unauthorised access to [the] accounts [in question].
Finally, concerning your request to stop any transfer of allowances in national registries until standard banking security measures have been implemented, such action would be disproportionate and lacks legal base …’
By letter of 22 December 2010, the Director-General of the ‘Climate Action’ Directorate-General of the Commission replied to the letter of 24 November 2010 as follows:
‘…
The recovery of any allowances which are claimed to have been transferred fraudulently is a matter for national law and national law enforcement authorities. The Commission has no powers to block any such allowances in a registry account as such allowances continue to represent legally valid compliance instruments.
As regards transactions with allowances, please note that this information is pursuant to Article 10 and Annex XVI of Regulation 2216/2004/EC confidential for five years. Notwithstanding this provision, the Commission does co-operate with relevant law enforcement authorities to solve the [issue of] unauthorised access to [the] accounts [in question] …’
It is not disputed that that Director-General of the Commission acted as central administrator of the Community independent transaction log, within the meaning of Article 20(1) of Directive 2003/87, a function which was transferred to him in 2010.
On 28 December 2010 interlocutory proceedings were brought against the Commission by a company other than the applicant before the Tribunal de première instance de Bruxelles (Court of First Instance, Brussels) (Belgium). The aim of those proceedings was, in particular, to have the President of that court, sitting as a judge hearing the application for interim measures, order the Commission to ‘disclose the identity of the holder or holders’ of the accounts in which the allowances allegedly stolen appeared and ‘block all national registries in which [such] allowances [were] registered’. On 21 February 2011, the applicant lodged an ‘application for leave to intervene’ before the Tribunal de première instance de Bruxelles in order ‘to secure the same measures as those sought’ by the other company. It thus acquired the status of ‘second applicant’. That at least is apparent from the final order in those interim proceedings, which is referred to in paragraph 39 below.
By letter of 11 March 2011, the Chief Prosecutor of the Office for the Investigation of Organised Crime and Terrorism (Romania) notified the applicant that a ‘criminal investigation’ had been opened into the events described by the applicant in its complaint (referred to in paragraph 25 above).
By letter of 18 March 2011, the same office informed the applicant that it had sent a request to the Belgian judicial authorities on 11 January 2011 by way of letters rogatory. The aim of that request was that the Directorate-General of the Commission with responsibility for maintaining the Community independent transaction log should:
—
officially prohibit the authorities responsible for maintaining national registries from accounting for and authorising transactions involving the emission allowances belonging to the applicant;
—
produce all data in its possession concerning the alleged unauthorised transfer of the applicant’s emission allowances on 16 November 2010;
—
give an account of all transactions concerning those allowances;
—
produce the log files showing the IP addresses, date and time of all transactions concerning the emission allowances belonging to the applicant from 16 November 2010 onwards;
—
produce the log files showing the IP addresses, date and time of all operations to access the accounts holding emission allowances belonging to the applicant from 16 November 2010 onwards; and
—
supply all information sent by other national registries concerning similar cases.
The letter of 18 March 2011 also stated that the Belgian judicial authorities had not yet answered the request.
It is apparent from the Commission’s defence that, in the meantime, on 4 March 2011, the European Anti-Fraud Office (‘OLAF’) had received, through the Belgian judicial authorities, the request sent by way of letters rogatory.
By letter of 4 April 2011, a company belonging to the same group as the applicant informed the Commission that a representative of the applicant had spoken to Commission officials on 2 and 17 March 2011. That company noted that, on those occasions, the Commission officials had been told that the Romanian public prosecutor had sent a request to the Commission by way of letters rogatory. It went on to state that the request had not yet been answered. Lastly, after stating that it had received oral confirmation that OLAF had received the request, it called on the Commission to provide an answer as soon as possible.
By letter of 7 April 2011, the competent Head of Unit of the Commission informed that company that DG ‘Climate Action’ had not received a request from the Romanian judicial authorities. She also notified the applicant that the data on transactions held in the Community independent transaction log was confidential and that, ‘according to a well-established practice’, it was provided only to national law enforcement authorities on duly justified request.
It is apparent from the defence, as supported by documentation produced by the Commission in response to a written question from the Court, that on the same day, 7 April 2011, OLAF replied to the request sent by way of letters rogatory. The existence of that reply is indeed acknowledged in the application. According to the details supplied by the Commission, OLAF sent the Belgian public prosecutor a ‘CD-ROM and a hard drive containing 300 gigabytes of information’.
By letter of 31 May 2011, the applicant’s lawyer informed the Commission that he assumed that it was aware of the fact that the applicant had been a party to the interlocutory proceedings referred to in paragraph 30 above since February 2011. He stressed that the aim of those proceedings was to have the Commission ordered to block the allowances allegedly stolen on 16 November 2010 and disclose ‘their current location in the national registries’. The applicant’s lawyer also stated that according to media reports, 279210 allowances allegedly stolen had been surrendered by various operators within the European Union on 30 April 2011 (in order to comply with the surrender obligation set out in Article 12(3) of Directive 2003/87, referred to in paragraph 14 above). He then asked the Commission not to permit the surrender of those allowances and, at the very least, to block them and reallocate them to their rightful holder.
By order of 3 June 2011, the President of the Tribunal de première instance de Bruxelles ruled that he had ‘no jurisdiction’ to entertain the proceedings referred to in paragraph 30 above.
By letter of 18 July 2011, the Commission replied to the letter sent to it by the applicant’s lawyer on 31 May 2011. It stated that its position had not changed as regards the request to block the surrender of the allowances allegedly stolen. In the Commission’s view, ‘[t]he recovery of any allowances which are claimed to have been transferred fraudulently is a matter for national law and national law enforcement authorities’ and ‘[t]he Commission has no powers to block any such allowances in a registry account as such allowances continue to represent legally valid compliance instruments’.
By letter of 13 December 2011, sent to the Commission, the applicant claimed that the Commission and the Member States had the ‘implicit duty’ to seek a solution in order to compensate an allowance user who is not at fault for the damage suffered by it. It then stated that it intended to bring legal proceedings against the Commission and the Romanian authorities to ‘recover its loss’. Lastly, it stated that since such proceedings were not in the interests of its shareholders, it was therefore prepared to reach an out-of-court settlement with the Commission.
By letter of 16 January 2012, the Commission informed the applicant that it was not in favour of an out-of-court settlement.
Procedure and forms of order sought by the parties
The applicant brought this action by application lodged at the Court Registry on 11 July 2012. It put forward two sets of claims.
First, the applicant claimed that the Court should, by way of ‘interlocutory judgment’:
—
‘on the grounds of [Articles] 256 [TFEU], 268 [TFEU] and 340 TFEU, find the EU liable for the conduct of the European Commission, with regard to the damage suffered by the applicant following the theft of 1000000 allowances;
—
… order the European Union to pay to the applicant a sum of EUR 1 on a provisional basis;
—
order the parties to agree on the amount of damages and/or the [applicant] to pro[ve] the final extent of [its] damage, within 3 months after the interlocutory judgment;
—
declare the judgment enforceable’.
Secondly, the applicant claimed that the Court should:
—
‘order the EU to pay to the applicant the market value of the stolen allowances which would not have been recovered at the day of the final judgment, at the market price of the day of the theft, plus interest at the rate of 8% per annum as from 16 November 2010;
—
order the EU to pay the costs;
—
declare the judgment enforceable’.
On 19 October 2012, the Commission lodged its defence at the Registry. It claimed that the Court should:
—
dismiss the action;
—
order the applicant to pay the costs.
On 23 October 2012, 94761 allowances were recovered by the applicant after having been ‘blocked’ by the Italian registry and seized by the Italian prosecutor. Accordingly, as from that date, the applicant had 905239 allowances to recover, and no longer, as it initially claimed (see paragraph 44 above), one million allowances.
On 11 February 2013, the applicant lodged a reply at the Court Registry. It altered one of the heads of claim. Instead of asking the Court to ‘order the parties to agree on the amount of damages and/or the [applicant] to pro[ve] the final extent of [its] damage, within 3 months after the interlocutory judgment’, it requested the Court to ‘order the parties to agree on the amount of damages and/or the [applicant] to pro[ve] the final extent of [its] damage, [no later than] 3 months after the result of the criminal procedure in Romania is known’. With respect to the remainder, the applicant requested that the Court make the same form of order as that set out in the application.
On 29 May 2013, the Commission lodged a rejoinder at the Registry.
After a change in the composition of the Chambers of the Court, the Judge‑Rapporteur initially designated was assigned to the Eighth Chamber, to which the present case was, consequently, assigned.
Upon hearing the report of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral procedure. By a measure of organisation of procedure, the Court requested that the parties reply to certain questions and produce a number of documents.
By document lodged at the Registry on 5 February 2014, the Commission complied with that request. On 6 February 2014, the applicant did the same.
At the hearing on 27 February 2014 the applicant and the Commission presented oral argument and answered the questions put by the Court.
Preliminary issues before examining the merits
Before examining whether the action is well founded, the Court will of its own motion assess whether that action is admissible in the light of the requirements of Article 44(1)(c) of its Rules of Procedure and will ascertain the effect on the proceedings of bringing an action before the Romanian courts – against the Romanian authorities – for compensation for the same damage as that alleged in the present proceedings.
I –
Compliance with Article 44(1)(c) of the Rules of Procedure
According to the case-law, under the first paragraph of Article 21, in conjunction with the first paragraph of Article 53, of the Statute of the Court of Justice of the European Union and Article 44(1)(c) of the Rules of Procedure, every application must state the subject-matter of the proceedings and contain a summary of the pleas in law on which it is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, in order for an action to be admissible, that the essential legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. More specifically, in order to satisfy those requirements, an application seeking compensation for damage allegedly caused by an EU institution must state the evidence from which it is possible to identify (i) the conduct alleged, (ii) the nature and extent of the damage allegedly suffered and (iii) the reasons why the applicant considers that there is a causal link between that conduct and that damage (see Case
T-16/04
Arcelor
v
Parliament and Council
[2010] ECR II-211
, paragraph 132 and the case-law cited).
However, it is not essential to specify in the application, as a condition of admissibility, the exact extent of the harm suffered, and even less to specify the amount of compensation sought since that is possible, in any event, up to the reply stage, on the condition that the applicant pleads special circumstances justifying its delay and provides the information which makes it possible to assess the nature and extent of the harm suffered, thereby enabling the defendant to defend itself (see
Arcelor
v
Parliament and Council
, cited in paragraph 55 above, paragraph 135 and the case-law cited).
Whether the applicant meets the requirements of Article 44(1)(c) of the Rules of Procedure must be determined in the light of those observations.
A –
The conduct of which the European Union is accused
The arguments deployed in the application seek to show that the Commission ought to have disclosed to the applicant the identity of the current holders of the stolen allowances, and then prohibited all transactions involving those allowances, in order to facilitate the surrender of those allowances to the applicant. Indeed, in paragraph 64 of the application, the applicant submits that ‘when refusing the disclosure of the localisation and the blocking of stolen EUAs [European emission allowances]’ the Commission has rendered the European Union liable. Similar statements are made in paragraph 68 of the application. Lastly, the claim is even more clearly stated in paragraph 134 of the application: the conduct of which the European Union is accused ‘is not the theft itself’, but ‘the inability, due to the unlawful refusal of the … Commission to timely block the stolen allowances and to disclose where to find them’.
Admittedly, in paragraph 65 of the application, the applicant states that ‘the facts giving way to the liability of European Union’ occurred on 16 November 2010, that is the day of the alleged unauthorised transfer of the allowances. However, since the applicant has at no stage expressly attributed that transfer to the Commission, it must be found that the conduct of which the applicant accuses the Commission is clearly identified in the application. That conduct is twofold: first, the Commission’s alleged refusal to ‘disclos[e] the localisation of … stolen EUAs’ and, secondly, its refusal to ‘[block the] stolen EUAs’.
B –
The damage alleged
In its heads of claim, the applicant claims that it should be paid, as reparation for the damage sustained by it, compensation equivalent to ‘the market value of the stolen allowances which would not have been recovered at the day of the final judgment, at the market price of the day of the theft, plus interest at the rate of 8% per annum as from 16 November 2010’.
It has thus stated sufficiently precisely the nature of the damage which it alleges, namely strictly pecuniary damage consisting, principally, in the market value, as at 16 November 2010, of the one million allowances allegedly stolen and not recovered as the date on which the action was brought.
In addition, the application must be considered to contain sufficient information in order to determine the exact extent of the damage alleged.
The heads of claim of the application, where the claim for damages is set out, must be read in conjunction with paragraph 119 of the application, where it is stated that the ‘losses’ incurred by the applicant amount to ‘around 15 Mio €’.
Furthermore, although that figure is approximate, it must be interpreted in the light of paragraph 7 of the application, where it is stated that ‘the average trade price of [each allowance allegedly stolen and unrecovered was, at the date of the alleged theft] between 10 and 20 €’. This shows that the applicant claims, at most, compensation of EUR 20 million, excluding interest.
Ultimately, both the nature and extent of the damage alleged are specified in the application.
C –
Causal link
Lastly, in the application, it is stated, with a certain degree of clarity, that the damage alleged resulted from ‘the inability, due to the unlawful refusal of the … Commission to timely block the stolen allowances and to disclose where to find them’. In the applicant’s view, that refusal prevented it from identifying the current holders of those allowances and, accordingly, from bringing proceedings, if necessary litigation, in order to recover them.
That information in relation to the causal link between the conduct complained of and the damage alleged is sufficient to enable the Court to find that the action meets the requirements laid down by Article 44(1)(c) of the Rules of Procedure.
II –
The effect on the proceedings of bringing an action before the Romanian courts – against the Romanian authorities – for compensation for the same damage as that alleged in the present proceedings
In paragraph 17 of the reply, the applicant states that it ‘[has brought a c]ivil action’ before a Romanian court against the administrative authority responsible for maintaining the Romanian registry. It adds that ‘this [action] is of a different nature and does not interfere with the present [action], since it is brought on the basis of a contract existing with the Romanian administration … and the Applicant’.
However, it is apparent from paragraph 49 of the application lodged at a Romanian court and registered by that court on 10 November 2011, that the damage for which compensation was sought from the Romania authorities corresponded to the market value, as at 16 November 2010, of the one million emission allowances allegedly the subject of an unauthorised transfer and not recovered. Consequently, although the conduct of which the Romanian authorities are accused (namely the failure to fulfil their obligation to ensure the security of the Romanian registry) is different from that of which the Commission is accused in the present proceedings, the fact remains that the damage alleged, in both cases, is the same: the value of the allowances allegedly stolen and not recovered as at the date on which the action was brought (see paragraph 61 above).
According to the information provided by the applicant, no Romanian court had given a ruling at the date of the hearing in the present case and,
a fortiori
, at the date on which the application was lodged.
In such a context, if, after the hearing in the present proceedings, the Romanian court had granted the applicant’s claim lodged with it and, at the same time, the General Court were to uphold the present action, the applicant would be compensated twice for the same damage.
However, approaches have been developed in the case-law which enable such consequences to be avoided either when the admissibility of the action is examined, or at a later stage when the merits of the case are examined.
A –
Effect on the admissibility of the present action of bringing an action for damages before a Romanian court
By the judgment in Case
20/88
Roquette frères
v
Commission
[1989] ECR 1553
(at paragraph 15), the Court held that the admissibility of an action for compensation provided for in Article 268 TFEU and the second paragraph of Article 340 TFEU may be conditional in certain cases on the prior exhaustion of the remedies available under domestic law for obtaining satisfaction from the national authorities, provided that those remedies under domestic law effectively ensure protection for the individuals concerned in that they are capable of resulting in compensation for the damage alleged.
In that formulation of the principle, the use of the verb ‘may’ shows that the non‑exhaustion of ‘remedies available under domestic law for obtaining satisfaction from the national authorities’ must not automatically lead to a finding of inadmissibility by the EU judicature. It may result in the inadmissibility of an action only ‘in certain cases’.
Admittedly, those cases were not defined in the judgment in
Roquette frères
v
Commission
, cited in paragraph 73 above (paragraph 15). However, the Court considers that there is only one situation in which the fact that a final ruling has not been given on the action for damages brought before the national court necessarily implies that the action for compensation brought before the EU judicature is inadmissible. This is where that fact precludes the latter from identifying the nature and quantum of the damage pleaded before it, with the result that the requirements of Article 44(1)(c) of the Rules of Procedure are not complied with (see the case-law set out in paragraph 55 above).
However, in the present case, notwithstanding the fact that nothing in the file leads to the conclusion that a Romanian court has ruled on the action for damages brought by the applicant, the General Court is able to ascertain the nature and quantum of the damage alleged (see paragraph 65 above).
Accordingly, the present action cannot be dismissed as inadmissible on the basis of the case-law resulting from the judgment in
Roquette frères
v
Commission
, cited in paragraph 73 above (paragraph 15).
B –
Effect on the examination of the substance of the present action of bringing an action for damages before a Romanian court
Bringing an action before a national court seeking compensation for the same damage as that relied on before the EU judicature has a bearing not only on admissibility but also on the examination of the merits of the action for compensation before the EU judicature.
According to the case-law, where (i) a person has brought two actions before the EU judicature seeking compensation for the same damage, one against a national authority, before a national court, and the other against an EU institution or body, and (ii) there is a likelihood that, because of the different assessments of that damage by the two different courts, the person in question may be insufficiently or excessively compensated, the EU judicature must, before deciding on the amount of the damage, wait until the national court has given final judgment on the action brought before it (see, to that effect, Joined Cases
5/66, 7/66 and 13/66 to 24/66
Kampffmeyer and Others
v
Commission
[1967] 245, at p. 266; Case 30/66
Becher
v
Commission
[1967] ECR 285
, at p. 300, and Case
T-138/03
É.R. and Others
v
Council and Commission
[2006] ECR II-4923
, paragraph 42).
Thus, in such a case, the EU judicature must wait until the national court has given judgment before ruling on the existence and the quantum of any damage. Nor can it adjudicate in the meantime on the causal link between the conduct alleged against the European Union and the damage invoked. On the other hand, it may, even before the national court has given its ruling, determine whether the conduct alleged is capable of giving rise to non-contractual liability on the part of the European Union. Moreover, in the judgment in
Kampffmeyer and Others
v
Commission
(at p. 262), cited in paragraph 79 above, before staying proceedings, the Court of Justice adjudicated on whether there was ‘a wrongful act or omission capable of giving rise to liability on the part of the Community’.
In the present case, since the applicant has brought an action before a Romanian court which is still pending with a view to being compensated in respect of the same damage as that alleged in the context of the present proceedings, the examination of damage and causation must be reserved.
However, the Court finds that it is in a position to rule on the questions that are preliminary to that examination.
In particular, it is open to the Court to assess the lawfulness of the two forms of conduct alleged by the applicant in support of its claim for damages for fault-based liability. In addition, in the event that it dismisses that first claim, the Court would also be in a position to rule on whether conditions for engaging strict liability have been met, assuming that such a system of strict liability has a place in EU law.
Substance
The applicant seeks a finding that the European Union is liable on two different heads: principally, it claims that the Union is liable on the basis of fault, that is to say liable by virtue of unlawful conduct and, in the alternative, that it has strict liability, that is to say liable by virtue of lawful conduct.
Those two heads will be examined below in turn.
I –
Liability for fault
According to settled case-law, in order for the European Union to incur non‑contractual liability, a number of conditions must be satisfied, namely (i) the conduct alleged must be attributable to an EU institution or body, (ii) that conduct must be unlawful, (iii) there must be damage and (iv) there must be a direct causal link between the conduct and the alleged damage. If any one of those conditions is not satisfied, the action must be dismissed in its entirety and there is no need to consider whether the other conditions are met (see the judgment of 10 July 2012 in Case T‑587/10
Interspeed
v
Commission
, not published in the ECR, paragraph 38 and the case-law cited).
In order for the conduct complained of to be unlawful, according to the case-law, there must have been a sufficiently serious breach of a rule of law intended to confer rights on individuals. In that regard, it should be borne in mind that the rules developed in the case-law as regards the non-contractual liability of the European Union take into account, inter alia, the complexity of the situations to be regulated, difficulties in the application or interpretation of the texts and, more particularly, the margin of discretion available to the author of the act in question. The decisive test for finding that a breach of Community law is sufficiently serious is whether the Community institution concerned has manifestly and gravely disregarded the limits on its discretion. Where the institution in question has only a considerably reduced or even no margin of discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach (Case
C-352/98 P
Bergaderm and Goupil
v
Commission
[2000] ECR I-5291
, paragraphs 40 and 42 to 44, and Case
C-312/00 P
Commission
v
Camar and Tico
[2002] ECR I-11355
, paragraphs 52 to 55).
The legality of the two different forms of conduct, as referred to in paragraph 59 above, of which the applicant accuses the Commission, must be assessed in the light of those considerations.
A –
First form of conduct complained of: the refusal to disclose the location of the allowances allegedly stolen on 16 November 2010
1. Existence of the conduct
None of the letters sent to the Commission on the applicant’s behalf, included in the file, contains an express request for the Commission to disclose the location of the allowances allegedly stolen on 16 November 2010.
However, it must be noted that the Commission volunteered to the applicant, in its letters of 14 and 22 December 2010 the statement that all ‘information [concerning the trading of allowances] is confidential for five years’.
In addition, the documents in the file before the Court show that, on 21 February 2011, the applicant requested the President of the Tribunal de première instance de Bruxelles to order the Commission to ‘disclose the identity of the holder or holders’ of the accounts containing the allowances which it claims were stolen from it on 16 November 2010 (see paragraph 30 above). In other words, the applicant sought an order that the Commission disclose the location of the allowances allegedly stolen.
Even though such a request was addressed to the President of the Tribunal de première instance de Bruxelles, not to the Commission, it is apparent that, by its letter of 7 April 2011 (see paragraph 36 above), the Commission sought to reply to it. In that letter it is stated that data on transactions held in the Community independent transaction log is confidential and that, ‘according to a well-established practice’, the Commission only provides such data to national law enforcement authorities on duly justified request. Admittedly, the letter of 7 April 2011 was not addressed to the applicant, but to another company in the same group. Indeed, it did not refer to the request made by the applicant in the proceedings instituted before the Tribunal de première instance de Bruxelles. None the less, the letter provided an indirect reply to that request.
In those circumstances, it must be concluded that the Commission refused to grant a request by the applicant to disclose the location of the allowances allegedly stolen on 16 November 2010. The existence of the first form of conduct has therefore been established.
2. Legality of the first form of conduct
The applicant has raised, in essence, seven pleas in law in order to demonstrate that the first form of conduct complained of, namely the Commission’s refusal to disclose directly to it confidential information, was unlawful.
a) First plea in law, alleging infringement of Article 10(1) of Regulation No 2216/2004
The applicant’s arguments
By its first plea in law, the applicant in essence claims that by refusing to disclose to it information concerning the allowances allegedly stolen, the Commission infringed Article 10 of Regulation No 2216/2004, which lays down the rules applicable to confidentiality.
In support of that plea, the applicant states that the Commission was required to disclose confidential information to it to enable the recovery of the allowances allegedly stolen. In its view, Article 10 of Regulation No 2216/2004 authorises the disclosure of confidential information when that is necessary for the implementation of the requirements of Regulation No 2216/2004, Directive 2003/87 and national law. Indeed, the disclosure of information on allowances allegedly stolen is necessary for the ‘implementation’ of such requirements and is ‘a requirement for the maintenance of the registries’.
In order to substantiate its position, the applicant submits that Article 20 of Directive 2003/87 entrusts the Community services designated to maintain the Community independent transaction log with the task of detecting possible irregularities affecting transactions, such as thefts, and resolving them. However, such a task could not be carried out if no information were given to the ‘victims of such irregularities’. Consequently, the disclosure of information on accounts ‘[with] a view to permitting the recovery of stolen allowances’ meets the requirements of Article 20 of Directive 2003/87.
Lastly, the applicant submits that while the Commission did state that it was willing ‘to disclose information to [the] authorities [of the Member States] in charge of the execution of the law’, it ruled out that civil courts, and in particular the President of the Tribunal de première instance de Bruxelles, could constitute such authorities. That position is ‘not justified, and as such constitutes a misuse of powers’. It adds that the Commission has not ‘truly’ responded to date to the ‘the rogatory commission of the Romanian criminal authorities … sent on 13 January 2011’.
Merits of the applicant’s arguments
In order to answer the first plea in law, the provisions of Article 10 of Regulation No 2216/2004 must first be set out and interpreted.
– Provisions of Article 10 of Regulation No 2216/2004 in force at the time of the conduct of which the Commission is accused
First of all, it must be stated that, at the date on which the Commission must be regarded as having refused to disclose the information which the applicant sought, that is on 7 April 2011 at the latest (see paragraph 92 above), Article 10 of Regulation No 2216/2004 was still in force. Although Article 91(2) of Commission Regulation (EC) No 994/2008 of 8 October 2008 for a standardised and secured system of registries pursuant to Directive 2003/87/EC and Decision No 280/2004/EC of the European Parliament and of the Council (
OJ 2008 L 271, p. 3
) repealed Regulation No 2216/2004, it deferred the effects of that repeal until 1 January 2012.
Article 10(1) of Regulation No 2216/2004 remained unchanged before being repealed on 1 January 2012. It provided that: ‘[a]ll information, including the holdings of all accounts and all transactions made, held in the registries and the Community independent transaction log shall be considered confidential for any purpose other than the implementation of the requirements of this Regulation, Directive 2003/87/EC or national law.’
The wording of paragraphs 2 to 2e of Article 10 of Regulation No 2216/2004, applicable at the date of the first form of conduct complained of, resulted from the amendments made by Article 78(2) of Commission Regulation (EU) No 920/2010 of 7 October 2010 for a standardised and secured system of registries pursuant to Directive 2003/87 and Decision No 280/2004/EC of the European Parliament and of the Council (
OJ 2010 L 270, p. 1
), those amendments having entered into force on 15 October 2010 pursuant to Article 80 of that regulation.
Consequently, in the version applicable to the dispute in the main proceedings, paragraphs 2 to 2e of Article 10 of Regulation No 2216/2004 provide:
‘2.   The following entities may obtain data stored in the registries and the [Community independent transaction log]:
(a)
the law enforcement and tax authorities of a Member State;
(b)
[OLAF];
(c)
Europol;
(d)
registry administrators of Member States.
2a.   Transaction data may be provided to the entities listed under paragraph 2 upon their request to the Central Administrator or to a registry administrator if such requests are justified and necessary for the purposes of investigation, detection and prosecution of fraud, tax administration or enforcement, money laundering, terrorism financing or serious crime.
2b.   An entity receiving data in accordance with paragraph 2a shall ensure that the data received is only used for the purposes stated in the request in accordance with paragraph 2a and is not made available deliberately or accidentally to persons not involved in the intended purpose of the data use. This provision shall not preclude these entities to make the data available to other entities listed in paragraph 2, if this is necessary for the purposes stated in the request made in accordance with paragraph 2a.
2c.   Upon their request, the Central administrator may provide access to anonymised transaction data to the entities listed in paragraph 2. for the purpose of looking for suspicious transaction patterns. Entities with such access may notify suspicious transaction patterns to other entities listed in paragraph 2.
2d.   Registry administrators shall make available through secure means to all other registry administrators the names and identities of persons whom they refused to open an account for, or whom refused to nominate as an authorised representative or additional authorised representative.
2e.   Registry administrators may decide to notify to national law enforcement authorities all transactions that involve a number of units above the amount determined by the registry administrator and to notify any account that is involved in a number of transactions within a 24-hour period that is above an amount determined by the registry administrator.’
Lastly, the wording of Article 10(3) of Regulation No 2216/2004, applicable at the date of the first form of conduct complained of, resulted from an amendment made by Article 1(6) of Regulation No 916/2007.
Consequently, in the version applicable to the dispute, Article 10(3) of Regulation No 2216/2004 provides:
‘Each competent authority and registry administrator shall only perform processes concerning allowances, verified emissions … accounts or Kyoto units where necessary to carry out their functions as competent authority or registry administrator.’
– Interpretation of Article 10 of Regulation No 2216/2004
Article 10 of Regulation No 2216/2004 addresses the need to preserve business confidentiality. It lays down a rule that all information, including the holdings of all accounts and all transactions made, held in the registries and the Community independent transaction log must be considered confidential.
An initial exception to that rule is laid down in Article 10(1) of Regulation No 2216/2004. That exception is aimed at the situation where the purpose of disclosing such information is to implement the requirements of Regulation No 2216/2004, Directive 2003/87 or national law. The exception must be interpreted narrowly, in the same way as any derogation or exception to a general rule (see the judgment of 29 September 2011 in Case C‑82/10
Commission
v
Ireland
, not published in the ECR, paragraph 44 and the case-law cited). Accordingly, it must be found that it covers only two cases. The first is where the disclosure of information held in the registries and the Community independent transaction log is expressly required by a provision of Directive 2003/87 or of Regulation No 2216/2004 or by a provision of national law consistent with EU law. The second case is where the disclosure of that information is necessary for the correct application of those provisions. In addition, it must be pointed out that the exception in question benefits, as a rule, only authorities exercising public powers likely on that basis to be entrusted with ‘implementing’ the provisions of Regulation No 2216/2004 and Directive 2003/87 or the national legislation seeking to transpose or apply those EU rules.
Paragraphs 2, 2a, 2b and 2c of Article 10 of Regulation No 2216/2004 lay down a second exception to the rule that the information held in the registries and the Community independent transaction log is confidential.
It is expressly provided, in paragraph 2, that that exception applies only to the law enforcement authorities of a Member State, the tax authorities of a Member State, OLAF, Europol and registry administrators of Member States.
In addition, the exception applies, according to paragraph 2a, only if those entities have made a request to obtain information held in the registries and the Community independent transaction log. That request must be properly reasoned. The information requested must itself be necessary for the prevention of crime or for establishing the basis of assessment for taxation or for tax enforcement.
Lastly, paragraph 2b does not does not preclude an entity receiving information pursuant to Article 2a from in turn disclosing it to natural or legal persons directly concerned by the criminal or tax considerations set out in the request. The first sentence of Article 2b ‘[requires any] entity receiving data in accordance with paragraph 2a [to] ensure that the data received is only used for the purposes stated in the request in accordance with paragraph 2a and is not made available deliberately or accidentally to persons not involved in the intended purpose of the data use’. It must be concluded, by contrary inference, that the persons ‘involved in … the data use’ stated in the request submitted pursuant to Article 2a are those that are able to receive that data from entities having made that request.
However, it must be noted that mere status of being a person involved in the use of data set out in a request submitted pursuant to Article 2a does not grant an unconditional right to receive that data. Its disclosure to a person with such a status is merely an option for the entity making the request: it is for that entity to assess, in the light, in particular, of the facts at its disposal and the national law applicable, if there must be disclosure.
Consequently, when a prosecuting authority, such as that applied to by the applicant on 25 November 2010 (see paragraph 25 above), has obtained in its capacity as a ‘law enforcement’ entity confidential information held in the registries and the Community independent transaction log which, in its view, is necessary to identify the perpetrators of a criminal offence, Article 10 of Regulation No 2216/2004 does not preclude it from disclosing that information to a natural or legal person like the applicant, which is a victim of the alleged criminal offence. For the purpose of Article 10(2)b of Regulation No 2216/2004, such a person has to be regarded as ‘involved’ so far as concerns considerations put forward in order to obtain the lifting of confidentiality.
Article 10(2)d of Regulation No 2216/2004 establishes a third exception to the confidentiality rule, which applies only to registry administrators. It authorises them to transmit certain information to each another.
Lastly Article 10(2)e of Regulation No 2216/2004 introduces a fourth exception to the confidentiality rule: it authorises the registry administrators to notify to national law enforcement authorities, first, transactions above a certain threshold and, secondly, the accounts involved in a number of daily transactions above a certain threshold.
– Application to the present case
In the first place, Article 20 of Directive 2003/87 provides, first, that the central administrator designated by the Commission must conduct an ‘automated check’ on each transaction in registries to ensure there are no irregularities in the transactions relating to allowances and, secondly, that when an ‘irregularity’ has been detected, that authority is to inform the Member State or Member States concerned (see paragraph 148 below). Contrary to the applicant’s claims in paragraph 97 above, neither that article nor indeed any other provision of Directive 2003/87 or of Regulation No 2216/2004 expressly provides that the Commission may disclose information concerning allowances allegedly stolen to the alleged victim of the theft. Similarly, it is not shown or even argued that a legislative provision applicable in a Member State contains such a provision.
Nor is it shown that such a lifting of confidentiality is necessary for the correct application of a provision of Directive 2003/87, Regulation No 2216/2004 or a legislative provision applicable in a Member State. In particular, the lifting of confidentiality is not necessary for the correct application of Article 20 of Directive 2003/87, which is relied on by the applicant.
In those circumstances, the applicant cannot rely on the exception
ratione materiae
to the confidentiality rule laid down in Article 10(1) of Regulation No 2216/2004 (and summarised in paragraph 107 above).
In the second place, it may be noted, for the sake of completeness, that the applicant is a limited company governed by Romanian law. In that capacity, it cannot properly rely on the exception
ratione personae
laid down in Article 10(2) of Regulation No 2216/2004 (summarised in paragraph 108 above).
In the third place, by the argument set out in paragraph 98 above, the applicant submits, in essence, that the Commission unlawfully refused to disclose confidential information to a civil court, namely the President of the Tribunal de première instance de Bruxelles, and did not ‘truly’ make such a disclosure to the criminal authorities, namely the Romanian public prosecutor. In the applicant’s view, such a refusal prevented it from subsequently being able to have access to that confidential information under Article 10(2)b of Regulation No 2216/2004, as interpreted in paragraphs 108 and 113 above.
However, first, it is apparent from what is stated in the defence, borne out by an internal Commission document produced by the Commission in response to a written question from the Court, that, on 7 April 2011, OLAF – which under Article 2 of Commission Decision 1999/352/EC, ECSC, Euratom, of 28 April 1999 establishing the European Anti-fraud Office (OLAF) (
OJ 1999 L 136, p. 20
), is, inter alia, responsible for ‘carrying out internal [Commission] administrative investigations intended … to combat fraud’ and ‘for providing the Commission’s support in cooperating with the Member States in the area of the fight against fraud’ – replied to the request from the Romanian public prosecutor made by way of letters rogatory (see paragraph 37 above). Far from being contradicted, those statements in the defence are entirely borne out by the application itself. Although the applicant argues, in paragraph 93 of the application, that the request made by way of letters rogatory was not ‘truly’ responded to (see paragraph 98 above), in paragraph 53 of the application it acknowledges at the same time the existence of such a response. In addition, even if, by the argument set out in paragraph 93 of the application, the applicant criticised the merits of OLAF’s response to the request in question on the Commission’s behalf, it must be found that it has offered no evidence capable of supporting such criticism. It has indeed not even stated in what way, in its view, the response offered by OLAF to the Romanian public prosecutor was inadequate or insufficient, whereas the Commission in its defence made clear the extent of the information sent by OLAF on its behalf (see paragraph 37 above). In those circumstances, the applicant cannot validly claim that the Commission refused to disclose information to the Romanian public prosecutor on the basis of its confidentiality.
Secondly, Article 10 of Regulation No 2216/2004 did not authorise the Commission to disclose to the President of the Tribunal de première instance de Bruxelles confidential data contained in the registries. As a judge hearing an application for interim measures, he did not enjoy the status of ‘a law enforcement authority’ within the meaning of Article 10(2)a (see paragraph 103 above). In particular, he was not responsible for any investigation concerning the allowances allegedly stolen.
Moreover, it is inaccurate to claim, as the applicant does, that the Commission was refusing to disclose confidential information to a civil court in a Member State, such as to the President of the Tribunal de première instance de Bruxelles: it was only refusing to disclose that information directly to the applicant in response to an order of the Belgian court.
In that regard, it must be pointed out that, in its pleading lodged on 21 February 2011 at the Tribunal de première instance de Bruxelles, the Commission’s lawyer stated as follows:
‘[T]he European Union has always stated that it was prepared to respond to properly reasoned questions addressed to it by the State authorities, but that is not what the other party’s application seeks … it is one thing to provide information to a judge or to the police …, yet another to provide that information to a commercial company, which is what the application — even though made to a court — in fact seeks. If that application were granted, the European Union … would have to provide the required information not to the President [of the Tribunal de première instance de Bruxelles] hearing an application for interim relief, but to the applicant.’
In other words, the Commission submitted, through its lawyer, that it agreed with sending, pursuant to Article 10(2) of Regulation No 2216/2004, confidential information relating to the emission allowances, in particular to national judicial authorities. But it made clear that a request, such as the application for interim measures lodged by the applicant with the Tribunal de première instance de Bruxelles (see paragraph 30 above), did not seek the disclosure of confidential information to such authorities, but rather its direct disclosure to a ‘commercial company’ so that, in the Commission’s view, that request could not be granted.
Accordingly, the first plea in law is unfounded.
b) Second plea in law, alleging infringement of the obligations resulting from the Kyoto Protocol
Arguments of the parties
By its second plea in law, the applicant submits that, as interpreted in paragraph 107 above, Article 10(1) of Regulation No 2216/2004 infringes the provisions of paragraph 47 of the Annex to Decision 13/CMP.1 referred to in paragraph 5 above. In so doing, it raises a plea of illegality.
In support of that plea, the applicant states that paragraph 47 of the Annex to Decision 13/CMP.1 lists the information that should be accessible to the public ‘pursuant to … paragraph 44’. In its view, that information includes ‘data from individual accounts’.
In addition, the applicant submits that ‘[it] could not reasonably have expected that the Commission … would interpret its duties in a way which is disproportionate and inconsistent with … the commitments made … in the Framework of the Kyoto Protocol’, such as Decision 13/CMP.1, and infers from this that there has been a failure to observe the principle of the protection of legitimate expectations.
In its defence, that Commission contends that the Annex to Decision 13/CMP.1 does not form part of the European Union’s legal order, since it has not been approved by the Union.
Merits of the plea
Even if the Annex to Decision 13/CMP.1 forms part of the European Union legal order and may be relied on before the Court, the second plea in law must be rejected, on the two grounds set out below.
– First ground
Paragraph 44 of the Annex to Decision 13/CMP.1 states that ‘[e]ach national registry shall make non-confidential information publicly available’, whereas paragraph 47 of that annex, relied on by the applicant, states:
‘The information referred to in paragraph 44 … shall include the following holding and transaction information relevant to the national registry …:
The total quantity of [Kyoto units (namely ERUs, CERs, AAUs and RMUs ), as defined in paragraph 4 of this judgment,] in each account at the beginning of the year;
The total quantity of AAUs issued on the basis of the assigned amount …;
The total quantity of ERUs issued on the basis of [certain] projects;
The total quantity of [Kyoto units] acquired from other registries and the identity of the transferring accounts and registries;
The total quantity of RMUs issued on the basis of [certain] activit[ies];
The total quantity of [Kyoto units] transferred to other registries and the identity of the acquiring accounts and registries;
The total quantity of [Kyoto units] cancelled on the basis of [certain] activities …;
The total quantity of [Kyoto units] [properly] cancelled …;
The total quantity of other [Kyoto units] cancelled;
The total quantity of [Kyoto units] retired;
The total quantity of [Kyoto units] carried over from the previous commitment period;
Current holdings of [Kyoto units] in each account.’
As is apparent from its wording, paragraph 47 of the Annex to Decision 13/CMP.1 does not characterise as ‘non-confidential’ the information which it lists.
If, notwithstanding this, it were accepted that paragraph 47 was referring only to information that is by nature non-confidential, there would scarcely be any information capable of being regarded as confidential in a national registry. Each Kyoto unit has a unique serial number, pursuant to paragraphs 24, 27, 29 and 41(b) of the Annex to Decision 13/CMP.1. Consequently, if it were accepted that all the information referred to in paragraph 47 of that Annex is by nature non‑confidential, this would mean, in particular, that pursuant to paragraph 47, anybody could know the Kyoto units in a given account at a given moment and, by means of an analysis of the data made available to it, would be in a position to determine where those units come from. Accordingly, such an interpretation of paragraph 47 of the Annex to Decision 13/CMP.1 would render nugatory paragraph 44, which authorises disclosure to the public only of non-confidential information recorded in the registry.
In those circumstances, it must be found that the information listed in paragraph 47 constitutes information which must be made available to the public pursuant to paragraph 44, but only when it is non-confidential in nature.
The Annex to Decision 13/CMP.1 does not specify the criteria according to which a party to the Kyoto Protocol may consider the information in paragraph 47 to be non-confidential.
Accordingly, the applicant cannot properly rely on paragraph 47 of the Annex to Decision 13/CMP.1 in order to show that the information which it sought was non-confidential.
– Second ground
Paragraphs 44 and 47 of Decision 13/CMP.1 relate only to disclosure to the public of information regarding the Kyoto units. They do not deal with the disclosure to the public of information concerning emission allowances established pursuant to Directive 2003/87 and Regulation No 2216/2004.
In the first place, the Kyoto units and the emission allowances are different in nature.
As stated in paragraph 10 above, the first and second paragraphs of Article 45 of Regulation No 2216/2004 provide that an emission allowance is obtained through the ‘conversion’ of an AAU, that conversion taking place through adding the ‘allowance’ element to the unique unit identification code of the AAU. The need for such a ‘conversion’ indicates that an allowance and an AAU are different, in particular with regard to applying the confidentiality rules.
In addition, as stated in paragraph 11 above, Article 11a of Directive 2003/87 offers the operator of an installation coming within the scope of the Community greenhouse gas emissions trading scheme, subject to certain reservations, the possibility of obtaining emission allowances ‘in exchange for’ CERs or ERUs. That fact shows that emission allowances are different in nature from CERs and ERUs, in particular as regards the application of the confidentiality rules.
Lastly, in more general terms, Regulation No 2216/2004 carefully distinguishes between the rules applicable to emission allowances and those relating to Kyoto units. Consequently, it does not group together under a single term (i) allowances and (ii) Kyoto units. By way of example, it should be noted that Article 11(5) of Regulation No 2216/2004 provides that ‘[u]nless otherwise provided, all accounts [held in the registries] shall be capable of holding allowances and Kyoto units’.
In the second place, Kyoto units and emission allowances address different aims.
First, it follows from paragraphs 1 to 4 of the Annex to Decision 13/CMP.1 that the Kyoto units are issued pursuant to the Kyoto Protocol or decisions implementing it. As is apparent from Article 3(1) of the Kyoto Protocol, referred to in paragraph 3 above, and also from the decisions implementing it, the Kyoto Protocol imposes obligations only on States and inter-state organisations party to it. The Kyoto units are therefore instruments which those States and inter-state organisations may use in order to meet their obligations resulting from the Kyoto Protocol.
Secondly, emission allowances were introduced under Directive 2003/87 and Regulation No 2216/2004. Those measures establish obligations in respect of legal or natural persons coming within their scope, that is those persons carrying out activities referred to in the Annex I to Directive 2003/87. Emission allowances are therefore instruments which were created solely by EU legislation and are aimed, primarily, at those natural or legal persons. They therefore form part of those persons’ assets, the use of which is likely to have a commercial logic.
Accordingly, since the only information which the Commission, by its letter of 4 April 2011, refused to disclose to the applicant concerned emission allowances, the applicant cannot properly argue that Article 10 of Regulation No 2216/2004 infringes paragraph 47 of Decision 13/CMP.1, which, as has been stated, related only to Kyoto units. In those circumstances moreover the argument referred to in paragraph 129 above cannot succeed.
c) Third plea, alleging infringement of Articles 19 and 20 of Directive 2003/87
Article 19(2) and (3) of Directive 2003/87 states:
‘2.   Any person may hold allowances. The registry shall be accessible to the public and shall contain separate accounts to record the allowances held by each person to whom and from whom allowances are issued or transferred.
3.   In order to implement this Directive, the Commission shall adopt a Regulation … for a standardised and secured system of registries in the form of standardised electronic databases containing common data elements to track the issue, holding, transfer and cancellation of allowances, to provide for public access and confidentiality as appropriate and to ensure that there are no transfers incompatible with obligations resulting from the Kyoto Protocol. …’
According to Article 20 of that directive:
‘…
The Central Administrator [designated by the Commission] shall conduct an automated check on each transaction in registries through the independent transaction log to ensure there are no irregularities in the issue, transfer and cancellation of allowances.
3.   If irregularities are identified through the automated check, the Central Administrator shall inform the Member State or Member States concerned who shall not register the transactions in question or any further transactions relating to the allowances concerned until the irregularities have been resolved.’
The applicant’s arguments
By its third plea in law, the applicant raises, in essence, a plea of illegality.
It submits that Article 19(3) of Directive 2003/87, which authorises the Commission to establish, by a regulation, a ‘a standardised and secured system of registries’, provides the Commission with ‘a certain discretion in a view to arbitrating between the interests at stake in favor of publicity vs. confidentiality’, but that that discretion is limited ‘by the strict wording of … article 20 of the same Directive regarding irregularities and the duty to resolve them’. The applicant adds that when, first, emission allowances are the subject of transactions vitiated by ‘irregularities’ and secondly, those ‘irregularities’ have been notified to it, the Commission is required, under Article 20 of Directive 2003/87, to disclose the information relating to those allowances.
The applicant submits that Article 10 of Regulation No 2216/2004 ‘doesn’t meet the requirements of … Articles 19 and 20 of Directive [2003/87]’. Those two articles stress the security requirements of an emission allowance trading scheme, but the confidentiality rules laid down by Article 10 of Regulation No 2216/2004 preclude allowances being seized at its request and preclude, ‘even in a criminal procedure’, information relating to allowances being disclosed to ‘the plaintiff’.
In those circumstances, the applicant takes the view that, in adopting Article 10 of Regulation No 2216/2004, ‘the Commission has obviously committed such manifest and grave disregard of the limits of [its] power’. In its view, it should have been provided that the information relating to a theft of data be disclosed to the alleged victim of that theft. Only such a provision would enable the ‘fair balance’ provided for by Article 19(3) of Directive 2003/87 to be achieved between the ‘interests at stake in favor of publicity vs. confidentiality’. In addition, it states that it ‘could not reasonably have expected that the Commission would refuse to take any action when irregularities are reported, and/or would interpret its duties in a way which is disproportionate and inconsistent with article 20 of Directive 2003/87 …’ and infers from this that the principle of the protection of legitimate expectations has been disregarded.
Merits of the applicant’s arguments
In the first place, it is true that Article 19(3) of Directive 2003/87 requires Regulation No 2216/2004 to ‘provide for public access and confidentiality as appropriate’, that is to strike a fair balance between transparency, on the one hand, and confidentiality, on the other.
However, precisely in order to reconcile those different requirements and, therefore, to comply with the provisions of Article 19(3) of Directive 2003/87, Article 10 of Regulation No 2216/2004 lays down significant exceptions to the confidentiality of the data held in the registries and the Community independent transaction log. In particular, as stated in paragraph 113 above, when a prosecuting authority, such as that applied to by the applicant on 25 November 2010 (see paragraph 25 above), has obtained confidential information held in the registries and the Community independent transaction log which, in its view, was necessary to identify the persons having committed a criminal offence, Article 10 of Regulation No 2216/2004 does not preclude it from disclosing that information to a natural or legal person like the applicant, which is a victim of the alleged criminal offence. Nor does Article 10 of Regulation No 2216/2004 preclude that person, on the basis of the information disclosed to it, from subsequently bringing proceedings for the seizure of certain emission allowances.
It follows that the argument alleging that Article 10 of Regulation No 2216/2004 infringes Article 19(3) of Directive 2003/87 must be rejected.
In the second place, the applicant’s line of argument is based on a misinterpretation of Article 20 of Directive 2003/87.
Article 20 imposes two obligations, one on the central administrator, that is the Commission, and the other on certain Member States: first, if irregularities relating to a transaction are identified through an ‘automated check’, the central administrator must inform ‘the Member State or Member States concerned’; secondly, once the latter have received such information, they are prohibited from registering the transaction in question or any further transactions relating to the allowances concerned ‘until the irregularities have been resolved’.
However, Article 20 of Directive 2003/87 does not provide for the disclosure of information relating to a transaction vitiated by an ‘irregularity’.
A fortiori
, it does not place the Commission under an obligation to disclose information relating to allowances concerned by such a transaction.
In those circumstances, neither the argument alleging that Article 10 of Regulation No 2216/2004 infringes Article 20 of Directive 2003/87, nor the argument alleging a failure to have regard to the principle of the protection of legitimate expectations, as set out in paragraph 152 above, can succeed.
The third plea in law must therefore be dismissed in its entirety.
d) Fourth plea, alleging infringement of the right to property
The applicant’s arguments
By its fourth plea in law, the applicant again raises a plea of illegality.
First, the applicant submits that Article 10 of Regulation No 2216/2004 disproportionately interferes with its right to property. The confidentiality rules established by Article 10 prevented the Commission from acting, as it ought to have done, in a ‘thorough, prompt, impartial and detailed way’ in order to help the applicant to clear up the theft of allowances allegedly suffered on 16 November 2010. Those rules prevented the applicant from recovering its allowances and therefore had the same effects as an expropriation.
Secondly, the applicant submits that those confidentiality rules, which address the need to preserve business confidentiality and ensure market liquidity, are, contrary to the Commission’s contentions, harmful to the proper functioning of the emission allowance trading scheme. They do not therefore respond to any sufficient public interest.
Merits of the applicant’s arguments
Article 17(1) of the Charter of Fundamental Rights of the European Union guarantees the right to property. It is not, however, absolute and may, consequently, be subject to restrictions (see the judgment of 28 May 2013 in Case T‑187/11
Trabelsi and Others
v
Council
[2011] ECR, paragraph 75 and the case‑law cited).
In the present case, the applicant submits, in essence, that the confidentiality rules laid down in Article 10 of Regulation No 2216/2004 precluded it from recovering stolen allowances, and in so doing, indirectly restricted the exercise of its right to property.
However, even if that were the case, that restriction must be considered to be in compliance with the requirements laid down by Article 52(1) of the Charter of Fundamental Rights, according to which, first, ‘[a]ny limitation on the exercise of the rights and freedoms recognised by [the] Charter [of Fundamental Rights] must be provided for by law and respect the essence of those rights and freedoms’ and, secondly, ‘[s]ubject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.
In the first place, those confidentiality rules are laid down in Article 10 of Regulation No 2216/2004, which is consistent with the enabling provisions of Article 19(3) of Directive 2003/87 (see paragraph 155 above). They must therefore be considered to have been provided for by law, within the meaning of Article 52(1) of the Charter of Fundamental Rights.
In the second place, as stated in paragraph 106 above, those rules address the need to preserve business confidentiality, that is to say an ‘objective of general interest recognised by the Union’.
In the third place, the rules in question do not lay down requirements disproportionate to the objective pursued. Firstly, they do not compromise the essence of the right to property. By themselves they do not infringe that right directly. Secondly, they do not exceed the limits of what is appropriate and necessary in order to achieve the objective referred to in the preceding paragraph. As stated in paragraphs 113 and 154 above, when a prosecuting authority such as that applied to by the applicant has obtained confidential information held in the registries and the Community independent transaction log which, in its view, was necessary to identify the persons having committed a criminal offence, Article 10 of Regulation No 2216/2004 does not preclude it from disclosing that information to a natural or legal person, like the applicant, which is a victim of the alleged criminal offence. In addition, Article 10 does not preclude such a person from taking steps, on the basis of the information thus disclosed, for the recovery of its allowances, nor does it render that task unduly complex.
The fourth plea in law must therefore be rejected.
e) The fifth plea in law, alleging the infringement of the right to effective judicial protection
By its fifth plea in law, the applicant argues that ‘the conduct of the Commission’ infringed the right to effective judicial protection laid down in Article 47 of the Charter of Fundamental Rights. In the applicant’s view, the Commission
de facto
prevented it ‘from [bringing] the necessary actions [with] a view to recovering its [(allegedly)] stolen allowances’, as it did not know ‘where [or] against whom to [bring] them’.
That plea in law amounts to a plea of illegality. The applicant submits, essentially, that Article 10 of Regulation No 2216/2004 fails to have regard to the principle of effective judicial protection, since, in accordance with the interpretation of that article in paragraphs 106 to 115 above, it precludes the Commission from disclosing directly to the applicant information on the emission allowances allegedly stolen from it, which prevents it from bringing national judicial proceedings for the surrender of those allowances.
In so doing, the applicant presupposes that, since the Commission is precluded from disclosing to it ‘directly’ confidential information held in the registries and the Community independent transaction log, it cannot bring judicial proceedings for the surrender of the allowances allegedly stolen from it.
However, as is apparent from what has been stated in paragraphs 113, 154 and 169 above, that line of argument is based on the incorrect premiss that Article 10 of Regulation No 2216/2004 precludes, first, the Romanian public prosecutor from sending to the applicant the confidential information which the Commission’s response to the request made by way of letters rogatory is likely to contain and, secondly, the applicant from using the information thus obtained in order to institute judicial proceedings for the surrender of emission allowances allegedly stolen.
The fifth plea in law must therefore be rejected.
f) The sixth plea in law, alleging failure to have regard to the principle of legal certainty
It is settled case-law that the principle of legal certainty aims to ensure that situations and legal relationships governed by EU law remain foreseeable (see Case
C-199/03
Ireland
v
Commission
[2005] ECR I-8027
, paragraph 69 and the case-law cited).
By the sixth plea in law, the applicant raises a further plea of illegality. It submits that legislation ‘must be implemented with a reasonable degree of clarity and consistency in order to avoid as far as possible legal insecurity and uncertainty for the individuals concerned by the measures taken’. In its view, ‘[i]n the present case, it is obvious that the European Commission has engendered a fundamental legal uncertainty … since a more liberal stand was taken [with regard to confidentiality] in the Kyoto [Protocol]’.
Thus, in essence, the applicant submits that the difference in treatment, as regards confidentiality, between emission allowances and Kyoto units reveals an inconsistency and constitutes, accordingly, a failure to observe the principle of legal certainty.
However, emission allowances and Kyoto units are different in nature (see paragraph 139 above). Consequently, even if as the applicant submits, the confidentiality rules applicable are different as regards emission allowances and Kyoto units, this does not affect the foreseeability of those rules and cannot therefore prove that the Commission failed to have regard to the principle of legal certainty.
Accordingly, the sixth plea in law must be rejected.
g) Seventh plea in law, alleging infringement of Article 2 of Directive 91/308
Under Article 44(1)(c) of the Rules of Procedure, an application must state, inter alia, a summary of the pleas in law on which it is based. That summary must be sufficiently clear to enable the defendant to prepare its defence and the Court to rule on the pleas, if necessary, without any further information. In order to ensure legal certainty and the sound administration of justice it is necessary, for a plea to be admissible, that at the very least its scope is indicated coherently and intelligibly in the application itself (see, to that effect, the judgment of 28 November 2013 in Case T‑424/12
Gaumina and EIGE
, not published in the ECR, paragraph 18 and the case-law cited).
By its seventh plea in law, the applicant submits that ‘the Commission did not respect’ Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering (
OJ 1991 L 166, p. 77
), ‘since … this directive in its article 2 provides for a general prohibition of money laundering … and the [Commission] in its written statements before the [Tribunal de première instance de Bruxelles] compares itself to a financial institution, underscoring that the [Community independent transaction log] merely records transactions and is not involved in them’.
From reading that plea, as set out in the application, it is clear that the applicant presupposes that when the Commission acts as a central administrator of the Community independent transaction log, it carries out functions similar to those of a financial institution and is therefore subject the prohibition on money laundering laid down in its view in Article 2 of Directive 91/308.
However, when questioned at the hearing as to whether the seventh plea in law met the requirements of Article 44(1)(c) of the Rules of Procedure, the applicant replied that it had not intended to state that Directive 91/308 was applicable to the Commission.
In that context, the Court cannot determine the scope of the seventh plea in law, which is set out perfunctorily in the application. It does not therefore satisfy the requirements of coherence and intelligibility required under Article 44(1)(c) of the Rules of Procedure. It must therefore be rejected as inadmissible.
In addition, even it were found that, notwithstanding its contradictions and imprecision, the present plea in law met the requirements of Article 44(1)(c) of the Rules of Procedure, it would have to be rejected as unfounded.
In the first place, Article 2 of Directive 91/308, relied on by the applicant, provides that: ‘Member States shall ensure that money laundering … is prohibited’. Consequently, Article 2 imposes obligations only on Member States. The applicant cannot therefore properly rely on Article 2 in order to prove that the Commission’s conduct was unlawful.
In the second place, even if the applicant intended to argue in the application that, in the EU legal order, a general principle prohibits anyone from carrying out money-laundering operations, its line of argument would have to be rejected. The applicant does not even set out the reasons why the refusal to disclose the information relating to the allowances allegedly stolen on 16 November 2010, of which it accuses the Commission, could be capable of being treated in the same way as money laundering.
In the third place, even if the applicant meant that that refusal had to be construed as amounting to a concealment of the source or location of the stolen property, its line of argument could not succeed. According to the third indent of Article 1 of Directive 91/308, the concept of ‘money laundering’ does indeed cover, in particular, ‘the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of property, knowing that such property is derived from criminal activity or from an act of participation in such activity’. However, the fact that the Commission refused, pursuant to Article 10 of Regulation No 2216/2004, to disclose directly to the applicant information on the allowances allegedly stolen does not prove that it intended to conceal the source or location of those allowances. Indeed, as stated in paragraph 121 above, it is not disputed that, on 7 April 2011, OLAF sent, on the Commission’s behalf, information relating to those allowances to the Romanian public prosecutor.
It follows from all the foregoing that it has not been established that the first form of conduct of which the Commission is accused is unlawful.
B –
Second form of conduct complained of: the refusal to prohibit all transactions concerning the allowances allegedly stolen on 16 November 2010
1. Existence of the second form of conduct
The applicant submits before the Court that the Commission refused to ‘block’ the allowances allegedly stolen from it. This is the second form of conduct of which the applicant accuses the Commission (see paragraphs 58 and 59 above).
It is established that the second form of conduct did in fact occur.
By letter of 24 November 2010, the applicant asked the Commission to ‘request … the National Registries’ to ‘block the … accounts’ through which the allowances allegedly stolen had passed (see paragraph 24 above). Initially, it therefore formally requested the Commission not to block the accounts itself, but to require the national authorities to do so. That blocking request was later repeated, albeit in slightly modified form. Thus, by letter of 2 December 2010, the Commission was then requested, on the applicant’s behalf, to ‘[itself] refuse access to … [the] accounts’ in question (see paragraph 26 above). In other words, the Commission itself was requested to ‘block’ not only the allowances but also all the accounts through which those allowances had passed. Third and lastly, the Commission itself was requested, by letter of 31 May 2011, ‘to block’ the stolen allowances only (see paragraph 38 above).
That last request was rejected by letter of 18 July 2011 (see paragraph 40 above).
2. Lawfulness of the second form of conduct
In order to prove that the second form of conduct of which it accuses the Commission is unlawful, the applicant raises in essence five pleas in law. Those pleas will be examined in turn below.
a) First plea in law, alleging the failure to have regard to the principle of sound administration
The guarantees afforded by the European Union legal order in administrative proceedings include, in particular, the principle of sound administration, enshrined in Article 41 of the Charter of Fundamental Rights, which entails the duty of diligence, that is the obligation on the relevant institution to examine carefully and impartially all the relevant aspects of the individual case (judgment of 27 September 2012 in Case T‑387/09
Applied Microengineering
v
Commission
[2012] ECR, paragraph 76, and judgment of 16 September 2013 in Case T‑333/10
ATC and Others
v
Commission
[2013] ECR, paragraph 84).
By its first plea in law, the applicant submits that ‘by pretending that [it] was not able to block allowances when [it] was almost immediately informed of the theft by the [Romanian authorities], and less than 2 months later blocking whole registries during months … while still pretending that [it] is not able to block individual allowances, the European Commission showed bad faith and unwillingness to fulfil [its] duty of care’.
In other words, the applicant claims that, by refusing to prohibit all transactions concerning the allowances allegedly stolen from it, the Commission failed to act with due diligence, thereby failing to observe the principle of sound administration.
The applicant therefore presupposes that the Commission was empowered to block such allowances. Indeed, in order for an authority to be able to act with due diligence in a specific area, it must also be empowered to act in that area.
However, the applicant’s supposition is incorrect.
First, Regulation No 2216/2004 provides for certain allowances within a registry to be blocked in one case only, laid down in Article 27 thereof. This is where ‘on 1 April …, an installation’s annual verified emissions for the preceding year have not been entered into the verified emissions table’, so that the account of the operator concerned must be blocked in its entirety. In other words, this is where, in the case of one of its installations, an operator has not satisfied within the required time-limit the technical rules relating to the report on the quantity of greenhouse gases emitted by that installation, as approved by the competent authority.
In any event, it is clear that the blocking of allowances requested by the applicant was not caught by the provisions of Article 27 of Regulation No 2216/2004.
Secondly, it is true that the Commission itself acknowledged that access to the registries was suspended in January 2011.
However, it stated, without being contradicted, that the legal basis for that suspension of access to the registries was Article 69 of Regulation No 2216/2004, which provides:
‘The Central Administrator may suspend access to the Community independent transaction log and a registry administrator may suspend access to his registry if there is a breach of security of the Community independent transaction log or of a registry which threatens the integrity of the Community independent transaction log or of a registry or the integrity of the registries system and the back-up facilities … are similarly affected’.
Contrary to what is implied by the applicant, Article 69 of Regulation No 2216/2004 does not allow access to be blocked to certain holding accounts within a registry. It only allows, in the event of systemic risk, all access to be suspended to a registry in its entirety or to the Community independent transaction log in its entirety.
Accordingly, the plea in law alleging a failure to have regard to the principle of sound administration must be rejected.
b) Second plea, alleging, in essence, the failure to have regard to the principle of legal certainty
By the second plea in law, the applicant argues that legislation ‘must be implemented with a reasonable degree of clarity and consistency in order to avoid as far as possible legal insecurity and uncertainty for the individuals concerned by the measures taken’. In its view, ‘[i]n the present case, it is obvious that the European Commission has engendered a fundamental legal uncertainty’ because it ‘first claimed no … possibility [of blocking emission allowances] existed, and later blocked the whole EU-ETS [(‘EU emissions trading’) system in January 2011]’. The applicant adds that that difference in treatment is all the less justified since the blocking of the ‘entire EU allowance trading scheme’ took place following the occurrence of similar thefts to that which it claims to have suffered.
That plea is based on the premiss that the legal basis relied on in order to suspend access to the registries in January 2011 allowed the Commission to block emission allowances deposited in a holding account within a given registry.
However, that is not the case. As is apparent from paragraphs 203 to 205 above, access to the registries had been suspended in January 2011 on the basis of Article 69 of Regulation No 2216/2004. While that article allows a generalised suspension of access to the registries in the event of systemic risk, it does not, as the applicant wished, allow certain emission allowances held in holding accounts within the same registry to be blocked.
Consequently, in suspending access to the registries in January 2011 and then refusing the applicant’s request to block certain allowances, the Commission did not, contrary to the applicant’s claims, act inconsistently or fail to have regard to the principle of legal certainty.
The second plea in law must therefore be rejected.
c) Third plea, alleging infringement of Article 20 of Directive 2003/87
As stated in paragraph 148 above, Article 20 of Directive 2003/87 provides:
‘…
The Central Administrator shall conduct an automated check on each transaction in registries through the independent transaction log to ensure there are no irregularities in the issue, transfer and cancellation of allowances.
3.   If irregularities are identified through the automated check, the Central Administrator shall inform the Member State or Member States concerned who shall not register the transactions in question or any further transactions relating to the allowances concerned until the irregularities have been resolved.’
By its third plea in law, the applicant submits that, ‘[i]f the Directive 2003/87 requires that “automated” checks be performed for irregularities, and that allowances subject of irregularities be blocked,
a fortiori
the Commission must intervene when irregularities are actively reported’. It adds that, ‘once irregularities are noticed, Article 20 of the Directive leaves no discretion to the Commission regarding the blocking of the allowances concerned’. The applicant states that if Article 20 of Directive 2003/87 had to be interpreted differently, this would be ‘contrary to’ its aim, ‘which is to avoid irregularities and fraud affecting the integrity of the CITL [Community independent transaction log]’.
However, it must be observed that Article 20 of Directive 2003/87 deals with irregularities capable of being detected by ‘automated checks’. Although the applicant states that it had not given its authorisation to the transfer of allowances on 16 November 2010 from its accounts in the Romanian registry and implies that that transfer amounted to an irregularity, it does not prove, or even argue, that such an irregularity could have been detected by a mere automated check.
Moreover, even if, first, the transfer of allowances in question may be regarded as an ‘irregularity’ within the meaning of Article 20 of Directive 2003/87 and, secondly, as the applicant states, that article requires the Commission to take the measures provided for by it not only when an ‘irregularity’ is detected by its services following an automated check but also when the irregularity has been notified to it by a person concerned, the applicant’s line of argument cannot succeed. Article 20 of Directive 2003/87 requires, first, the Commission, in its capacity as central administrator, to inform the Member States concerned when transactions are affected by ‘irregularities’ and those Member States then not to register those transactions. On the other hand, it does not oblige, or even authorise, expressly or by implication, the Commission itself to block the allowances the subject of those transactions.
Accordingly, the third plea in law must be rejected.
d) Fourth plea in law, alleging the failure to have regard to the principle of equal treatment
In the reply, the applicant submits for the first time that the Commission treated it less favourably than companies that had been the victims of thefts of allowances at the beginning of 2010. It states that an article published in 2011 shows that, in the case of those companies, the Commission reacted by freezing the stolen allowances.
It follows from Article 44(1)(c) in conjunction with Article 48(2) of the Rules of Procedure that the introduction of a new plea in law after the application has been lodged is not allowed unless it is based on matters of law or of fact which come to light in the course of the procedure. However, a plea which constitutes an amplification of a plea previously made, either expressly or by implication, in the original application and is closely linked to it must be declared admissible (see Case
T-345/05
Mote
v
Parliament
[2008] ECR II-2849
, paragraph 85 and the case-law cited).
First, contrary to what the applicant claimed at the hearing, the present plea in law does not constitute an amplification of a plea previously made in the application. Secondly, it is not based on matters coming to light in the course of the procedure. Thirdly, it was submitted out of time, in the reply. In addition, it may be observed that the applicant has not given reasons for that belated submission, even though the Court requested it to do so at the hearing.
The fourth plea in law is therefore inadmissible.
Moreover, even if that were not the case, that plea would have to be rejected as factually groundless. In the extract of the article cited by the applicant, it is at no point stated that the Commission had itself blocked the stolen allowances. It is stated that the discovery of certain fraudulent practices had brought about ‘the suspension of the transactions from the accounts of the affected users’. However, it is not specified which authority had suspended the transactions.
e) Fifth plea, alleging the infringement of the right to effective judicial protection
By its fifth plea in law, the applicant submits that the refusal to block the emission allowances allegedly stolen undermines its right to effective judicial protection. It claims that the fact that the allowances have not been blocked seriously harms the effectiveness of judicial proceedings that may be brought to recover them.
However, contrary to the applicant’s suppositions, in order to identify an emission allowance and, therefore, to bring judicial proceedings for its recovery, it is not a requirement that the allowance cannot be traded. Each allowance has a ‘unique unit identification code’, in accordance with Article 39(2) of Regulation No 2216/2004, and can therefore be identified even if it is not ‘blocked’.
In addition, as noted in paragraphs 113, 154, 169 and 174 above, paragraph 2b of Article 10 of Regulation No 2216/2004 does not preclude a prosecuting authority, such as that applied to by the applicant, once it has obtained confidential information relating, for example, to the location of allowances which it assumes to have been stolen, from disclosing that information to a natural or legal person like the applicant, which is a victim of that alleged theft. Nor does that provision preclude such a person from using the information which it has thus obtained in order to bring legal proceedings to recover the allowances which, in its view, had been stolen from it.
Accordingly, the fifth plea in law must be rejected.
It follows from all the foregoing that it has not been proved that the second form of conduct of which the Commission is accused is unlawful.
The claim for damages for fault-based liability must therefore be dismissed.
II –
Strict liability
A –
The applicant’s arguments
In the alternative, the applicant seeks a finding that the European Union has strict liability.
The applicant submits that the liability of the European Union may be engaged even when the conduct complained of does not infringe the applicable legislation and the legislation is itself consistent with the higher rules of law. It also takes the view that such liability as a result of the adoption of lawful acts is engaged in the present case. The Commission’s conduct caused it unusual and special damage, which is moreover not sufficiently justified by a public interest. It is apparent from the application that, in the applicant’s view, that conduct is, first, the enactment of a provision, namely Article 10 of Regulation 2216/2004, and, secondly, the adoption of individual measures, namely the application of that article to the individual case.
More specifically, relying on paragraph 18 of the judgment in Case
C-237/98 P
Dorsch Consult
v
Council and Commission
[2000] ECR I-4549
, the applicant submits that the strict liability of the European Union is engaged provided that the damage alleged affects a particular circle of economic operators in a disproportionate manner by comparison with others and exceeds the limits of the economic risks inherent in operating in the sector concerned, and the legislative measure that gave rise to the alleged damage is not justified by a general economic interest.
Applying the rules laid down in that case, the applicant submits, first, that the damage suffered by it is unusual because it is ‘disproportionate ... in comparison to the other economic operators on the market, which have suffered no such irrecoverable thefts’.
Secondly, the applicant considers that its damage is special because ‘its ... persistence is the consequence not of any aspect of the business, nor of the theft itself or any other “normal” societal cause, but of the irrecoverability [of the allowances stolen]’.
Thirdly, the applicant submits that the confidentiality rules established by Article 10 of Regulation No 2216/2004 protect private interests only, that is those of ‘other economic operators of the market, which have purchased or concealed the stolen allowances’. Moreover, in the applicant’s view, those rules are not necessary for the proper working of the emission allowance market.
B –
Merits of the applicant’s arguments
In paragraphs 175 and 176 of its judgment in Joined Cases
C-120/06 P and C-121/06 P
FIAMM and Others
v
Council and Commission
[2008] ECR I-6513
, the Court of Justice held that ‘the possible existence of a principle of liability in the case of a lawful act or omission of the public authorities, in particular where it is of a legislative nature’ could not be inferred from a comparative examination of the Member States’ legal systems. Then it drew the appropriate conclusions from this in the specific situation before it, holding that, ‘as [EU] law currently stands, no liability regime exists under which the [European Union] can incur liability for conduct falling within the sphere of its legislative competence in a situation where any failure of such conduct to comply with [an international agreement] cannot be relied upon before the [EU judicature]’.
However, in paragraph 141 of the judgment in Case
C-414/08 P
Sviluppo Italia Basilicata
v
Commission
[2010] ECR I-2559
, after stating that there was no need for it to adjudicate on the ‘possibility of liability being incurred on the part of the European Union for harm caused by a lawful act in circumstances such as those in the present case’, the Court of Justice made clear that the General Court was entitled, without erring in law, to reject a plea of liability on the part of the European Union for harm caused by a lawful act, on the ground that the damage alleged by the appellant was not, ‘in any event’, unusual or special. In other words, the Court of Justice pointed out that the General Court did not err in law in not resolving the question of whether there was strict liability under EU law and in rejecting ‘in any event’ the arguments submitted to it in the absence of proof that the damage relied on was unusual and special.
According to the case-law, damage must be considered ‘unusual’ if it exceeds the limits of the economic risks inherent in operating in the sector concerned and ‘special’ if it affects a particular class of economic operators in a disproportionate manner by comparison with other operators (see Case
T-170/00
Förde-Reederei
v
Council and Commission
[2002] ECR II-515
, paragraph 56 and the case-law cited).
In the present case, in any event, one of those two cumulative conditions has not been met: it has not been proved that the damage alleged is unusual. The fact that confidentiality rules have been laid down in Article 10 of Regulation No 2216/2004 and then applied to the applicant by the Commission does not amount to an unusual risk in the sector: in the absence of such rules, business confidentiality could not be guaranteed, which would compromise the very existence of an allowance market.
In addition, it must be found, for the sake of completeness, that, in the sector concerned, namely that of economic operators subject to the Community trading allowance scheme, access to the allowance accounts is by means of an open computer system on the Internet. Allowance trading also takes place by means of that open computer system on the Internet. However, it is well known that such a way of functioning has technical risks, which are sometimes appreciable. The damage corresponding to the value of the allowances transferred, electronically, without the authorisation of the applicant to accounts other than its own cannot, therefore, in any event, be regarded as exceeding the limits of the economic or technical risks inherent in operating in the sector concerned.
Accordingly, the claim for strict liability must, in any event, be dismissed.
Consequently, the action must be dismissed in its entirety.
Costs
Under Article 87(2) 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.
In the present case, since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:

1.
Dismisses the action;

2.
Orders Holcim (Romania) SA to bear its own costs and to pay the costs of the European Commission.

Gratsias
Kancheva
Wetter
Delivered in open court in Luxembourg on 18 September 2014.
[Signatures]
Table of contents

Background to the dispute

I – The commitments resulting from the Kyoto Protocol

II – The legislation adopted, within the European Union, in order to implement the Kyoto Protocol

A – Greenhouse gas emission allowances created by European Union (‘EU’) legislation

B – Issue and surrender of allowances

C – The detailed rules governing the operation of the allowance trading scheme

III – Events prior to the bringing of the action

Procedure and forms of order sought by the parties

Preliminary issues before examining the merits

I – Compliance with Article 44(1)(c) of the Rules of Procedure

A – The conduct of which the European Union is accused

B – The damage alleged

C – Causal link

II – The effect on the proceedings of bringing an action before the Romanian courts – against the Romanian authorities – for compensation for the same damage as that alleged in the present proceedings

A – Effect on the admissibility of the present action of bringing an action for damages before a Romanian court

B – Effect on the examination of the substance of the present action of bringing an action for damages before a Romanian court

Substance

I – Liability for fault

A – First form of conduct complained of: the refusal to disclose the location of the allowances allegedly stolen on 16 November 2010

1. Existence of the conduct

2. Legality of the first form of conduct

a) First plea in law, alleging infringement of Article 10(1) of Regulation No 2216/2004

The applicant’s arguments

Merits of the applicant’s arguments

– Provisions of Article 10 of Regulation No 2216/2004 in force at the time of the conduct of which the Commission is accused

– Interpretation of Article 10 of Regulation No 2216/2004

– Application to the present case

b) Second plea in law, alleging infringement of the obligations resulting from the Kyoto Protocol

Arguments of the parties

Merits of the plea

– First ground

– Second ground

c) Third plea, alleging infringement of Articles 19 and 20 of Directive 2003/87

The applicant’s arguments

Merits of the applicant’s arguments

d) Fourth plea, alleging infringement of the right to property

The applicant’s arguments

Merits of the applicant’s arguments

e) The fifth plea in law, alleging the infringement of the right to effective judicial protection

f) The sixth plea in law, alleging failure to have regard to the principle of legal certainty

g) Seventh plea in law, alleging infringement of Article 2 of Directive 91/308

B – Second form of conduct complained of: the refusal to prohibit all transactions concerning the allowances allegedly stolen on 16 November 2010

1. Existence of the second form of conduct

2. Lawfulness of the second form of conduct

a) First plea in law, alleging the failure to have regard to the principle of sound administration

b) Second plea, alleging, in essence, the failure to have regard to the principle of legal certainty

c) Third plea, alleging infringement of Article 20 of Directive 2003/87

d) Fourth plea in law, alleging the failure to have regard to the principle of equal treatment

e) Fifth plea, alleging the infringement of the right to effective judicial protection

II – Strict liability

A – The applicant’s arguments

B – Merits of the applicant’s arguments

Costs
(
*1
)	Language of the case: English.