CELEX: 62009CJ0504
Appeal
Environment
Directive 2003/87/EC
Greenhouse gas emission allowance trading scheme
National allocation plan for emission allowances for the Republic of Poland for the period 2008 to 2012
Article 9(1) and (3) and Article 11(2) of Directive 2003/87
Respective competences of the Commission and the Member States
Equal treatment

By its appeal, the European Commission seeks to have set aside the judgment of the Court of First Instance of the European Communities (now ‘the General Court’) of 23 September 2009 in Case
T-183/07
Poland
v
Commission
[2009] ECR II-3395
(‘the judgment under appeal’) annulling Commission decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for emission allowances notified by the Republic of Poland for the period from 2008 to 2012, in accordance with Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (‘the contested decision’),
Legal context
Article 1 of European Parliament and Council Directive 2003/87/EC of 13 October 2003 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
; ‘the Directive’), as amended by European Parliament and Council Directive 2004/101/EC of 27 October 2004 (
OJ 2004 L 338, p. 18
), provides:
‘This Directive establishes a scheme for greenhouse gas emission allowance trading within the Community ... in order to promote reductions of greenhouse gas emissions in a cost-effective and economically efficient manner.’
Article 9 of Directive 2003/87/EC reads as follows:
‘1.   For each period referred to in Article 11(1) and (2), each Member State shall develop a national plan stating the total quantity of allowances that it intends to allocate for that period and how it proposes to allocate them. The plan shall be based on objective and transparent criteria, including those listed in Annex III, taking due account of comments from the public. The Commission shall, without prejudice to the [EC] Treaty, by 31 December 2003 at the latest, develop guidance on the implementation of the criteria listed in Annex III.
For the period referred to in Article 11(1), the plan shall be published and notified to the Commission and to the other Member States by 31 March 2004 at the latest. For subsequent periods, the plan shall be published and notified to the Commission and to the other Member States at least 18 months before the beginning of the relevant period.
2.   National allocation plans shall be considered within the committee referred to in Article 23(1).
3.   Within three months of notification of a national allocation plan by a Member State under paragraph 1, the Commission may reject that plan, or any aspect thereof, on the basis that it is incompatible with the criteria listed in Annex III or with Article 10. The Member State shall only take a decision under Article 11(1) or (2) if proposed amendments are accepted by the Commission. Reasons shall be given for any rejection decision by the Commission.’
Article 10 of Directive 2003/87/EC provides that, ‘for the three-year period beginning 1 January 2005, Member States are to allocate at least 95% of the allowances free of charge. For the five-year period beginning 1 January 2008, Member States are to allocate at least 90% of the allowances free of charge’.
Under Article 11(2) of Directive 2003/87:
‘For the five-year period beginning 1 January 2008, and for each subsequent five-year period, each Member State shall decide upon the total quantity of allowances it will allocate for that period and initiate the process for the allocation of those allowances to the operator of each installation. This decision shall be taken at least 12 months before the beginning of the relevant period and be based on the Member State’s national allocation plan developed pursuant to Article 9 and in accordance with Article 10, taking due account of comments from the public.’
Annex III to the Directive sets out 12 criteria applicable to national allocation plans. Criteria Nos 1 to 3, 5 and 6, 10 and 12 of Annex III provide respectively as follows:
‘1.
The total quantity of allowances to be allocated for the relevant period shall be consistent with the Member State’s obligation to limit its emissions pursuant to [Council] Decision 2002/358/EC [of 25 April 2002 concerning the approval, on behalf of the European Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments thereunder (
OJ 2002 L 130, p 1
)] and the Kyoto Protocol, taking into account, on the one hand, the proportion of overall emissions that these allowances represent in comparison with emissions from sources not covered by this Directive and, on the other hand, national energy policies, and should be consistent with the national climate change programme. The total quantity of allowances to be allocated shall not be more than is likely to be needed for the strict application of the criteria of this Annex. Prior to 2008, the quantity shall be consistent with a path towards achieving or over-achieving each Member State’s target under Decision 2002/358 and the Kyoto Protocol.
2.
The total quantity of allowances to be allocated shall be consistent with assessments of actual and projected progress towards fulfilling the Member States’ contributions to the Community’s commitments made pursuant to [Council] Decision 93/389/EEC [of 24 June 1993 for a monitoring mechanism of Community CO
and other greenhouse gas emissions (
OJ 1993 L 167, p. 31
)].
3.
Quantities of allowances to be allocated shall be consistent with the potential, including the technological potential, of activities covered by this scheme to reduce emissions. Member States may base their distribution of allowances on average emissions of greenhouse gases by product in each activity and achievable progress in each activity.
…
5.
The plan shall not discriminate between companies or sectors in such a way as to unduly favour certain undertakings or activities in accordance with the requirements of the Treaty, in particular Articles 87 [EC] and 88 [EC].
6.
The plan shall contain information on the manner in which new entrants will be able to begin participating in the Community scheme in the Member State concerned.
…
10.
The plan shall contain a list of the installations covered by this Directive with the quantities of allowances intended to be allocated to each.
…
12.
The plan shall specify the maximum amount of [certified emission reductions (CERs)] and [emission reduction units (ERUs)] which may be used by operators in the Community scheme as a percentage of the allocation of the allowances to each installation. The percentage shall be consistent with the Member State’s supplementary obligations under the Kyoto Protocol and decisions adopted pursuant to the UNFCCC or the Kyoto Protocol.’
Background to the dispute and the contested decision
The facts behind the dispute and the contested decision are set out in paragraphs 9 to 15 of the judgment under appeal as follows:
‘9
By letter of 30 June 2006, the Republic of Poland notified the Commission of the European Communities, in accordance with Article 9(1) of Directive [2003/87], of its national allocation plan for the period from 2008 to 2012 (“the [Polish] NAP”). According to the [Polish] NAP, the Republic of Poland intended to allocate to its national industry covered by [that] Directive an average annual total of 284.648332 million tonnes-equivalent of carbon dioxide (“CO
”).
The [Polish] NAP was accompanied by a letter to the Commission dated 29 June 2006, from the Polish Environment Minister, indicating that “the tables containing the earlier data and the emissions forecasts referred to in Annex 10 of the guidelines mentioned above, will be sent to the Commission as soon as the updated indispensable data are received” and that “[t]he definitive version of the list naming operators of installations and the figures for the allowances which will be allocated to them will be sent to the Commission after adoption by the Council of Ministers”.
By letter to the Republic of Poland of 30 August 2006, the Commission stated that, after a first examination of the [Polish] NAP, the latter was incomplete, and that, at that stage, it was not compatible with criteria Nos 2 and 5 of Annex III to Directive [2003/87]. It therefore invited the Republic of Poland to reply within 10 working days to a series of questions and requests for additional information. The Commission added that it would be able to take a position on the NAP not later than three months after receipt of full information.
By letter of 30 October 2006, the Deputy State Secretary at the Polish Environment Ministry asked the Commission to extend the time for replying to the letter of 30 August 2006 until the end of the third week of November 2006, stating, inter alia, that that additional time would enable him to prepare exact information and to explain essential aspects, thus enabling the Commission to make a correct and truly complete assessment of the document submitted.
The Republic of Poland replied to the letter of 30 August 2006 by a letter of 29 December 2006. By letter of 9 January 2007, it sent further information.
On 26 March 2007, pursuant to Article 9(3) of Directive [2003/87], the Commission adopted [the contested decision]. In [that] decision …, the Commission concluded, essentially, that several criteria in Annex III of [that] Directive had been infringed, and thus reduced the total annual quantity of emission allowances in the NAP by 76.132937 million tonnes of CO
equivalent, fixing the ceiling at 208.515395 million tonnes of CO
equivalent.
The operative part of the [contested] decision reads:
“Article 1
The following aspects of the [Polish NAP] for the first five-year period mentioned in Article 11(2) of the Directive are incompatible respectively with:
1.
criteria [Nos] 1 [to] 3 of Annex III to Directive [2003/87]: the part of the intended total quantity of allowances, amounting to the sum of 76.132937 million tonnes of CO
equivalent per year and the adjustment resulting from any lowering of the number of installations covered and one fifth of the total number of allowances [the Republic of] Poland decides to issue pursuant to Article 13(2) of the Directive, that is not consistent with assessments made pursuant to Decision [No] 280/2004/EC [of the European Parliament and of the Council of 11 February 2004 concerning a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto Protocol (
OJ 2004 L 49, p. 1
)] and not consistent with the potential, including the technological potential, of activities to reduce emissions; this part being reduced in respect of emissions of project activities which were already operational in 2005 and resulted in 2005 in emission reductions or limitations in installations falling under the scope of Directive [2003/87] to the extent that the resulting emission reductions or limitations due to these project activities have been substantiated and verified; in addition, the part of the total quantity potentially amounting to 6.2884 million tonnes of allowances in respect of additional emissions of combustion installations annually to the extent that this is not justified in accordance with the general methodologies stated in the [Polish NAP] and on the basis of substantiated and verified emission figures and does not exclusively relate to the expansion element of the installations concerned;
2.
criterion [No] 5 of Annex III to Directive [2003/87]: the allocations to certain installations going beyond their expected needs as a result of the application of bonuses for early action, biomass or co-generation;
3.
criterion [No] 6 of Annex III to Directive [2003/87]: the information on the manner in which new entrants will be able to begin participating in the Community scheme;
4.
criterion [No] 10 of Annex III to Directive [2003/87]: the intention of [the Republic of] Poland to transfer allowances from an installation in the coking industry to a power generator in the event of the sale of coke oven gas by the former to the latter;
5.
criterion [No] 12 of Annex III to Directive [2003/87]: the maximum overall amount of CERs and ERUs of 25% which may be used by operators in the Community scheme as a percentage of the allocation of the allowances to each installation that is inconsistent with [the Republic of] Poland’s supplementary obligations under the Kyoto Protocol and decisions adopted pursuant to the [United Nations Framework Convention on Climate Change adopted at New York on 9 May 1992] or the Kyoto Protocol, to the extent that it exceeds 10%.
Article 2
No objections shall be raised to the [Polish NAP], provided that the following amendments to the national allocation plan are made in a non-discriminatory manner and notified to the Commission as soon as possible, taking into account the time-scale necessary to carry out the national procedures without undue delay:
1.
the total quantity to be allocated for the Community scheme is reduced by the sum of 76.132937 million tonnes CO
equivalent of allowances per year and the adjustment resulting from any lowering of the number of installations covered and one fifth of the total number of allowances [the Republic of] Poland decides to issue pursuant to Article 13(2) of the Directive; and the quantities allocated to additional combustion installations are determined in accordance with the general methodologies stated in the [Polish NAP] and on the basis of substantiated and verified emission figures and exclusively relate to the expansion element of the installations concerned, with the total quantity being further reduced by any difference between the allocations to these installations and the 6.2884 million tonnes set aside annually for these installations; and the total quantity being increased in respect of emissions of project activities which were already operational in 2005 and resulted in 2005 in emission reductions or limitations in installations falling under the scope of the Directive to the extent that the resulting emission reductions or limitations due to these project activities have been substantiated and verified;
2.
the allocations to installations do not go beyond their expected needs as a result of the application of bonuses for early action, biomass or co-generation;
3.
information is provided on the manner in which new entrants will be able to begin participating in the Community scheme, in a way that complies with the criteria of Annex III to [Directive 2003/87] and Article 10 thereof;
4.
the quantity of allowances allocated to an installation that is listed in the [Polish NAP] and operating in its territory is not subject to adjustments as a result of the closure of other installations within that territory;
5.
the overall maximum amount of certified emission reductions and emission reduction units which may be used by operators in the Community scheme as a percentage of the allocation of the allowances to each installation is reduced to no more than 10%.
Article 3
1.   The total average annual quantity of allowances of 208.515395 million tonnes, reduced by the sum of the adjustment resulting from any lowering of the number of installations covered and one-fifth of the total number of allowances [the Republic of] Poland decides to issue pursuant to Article 13(2) of Directive [2003/87], and further reduced by any difference between the allocations to additional combustion installations and the 6.2884 million tonnes set aside annually for these installations, and increased in respect of emissions of project activities which were already operational in 2005 and resulted in 2005 in emission reductions or limitations in installations falling under the scope of Directive [2003/87], to the extent that the resulting emission reductions or limitations due to these project activities have been substantiated and verified and exclusively relate to the expansion element of the installations concerned, to be allocated by [the Republic of] Poland according to its [Polish NAP] to installations listed therein and to new entrants shall not be exceeded.
2.   The [Polish NAP] may be amended without prior acceptance by the Commission if the amendment consists in modifications of the allocation of allowances to individual installations within the total quantity to be allocated to installations listed therein resulting from improvements to data quality or to change the share of the allocation of allowances free of charge in a non-discriminatory manner within the limits set in Article 10 of Directive [2003/87].
3.   Any amendments of the [Polish NAP] made to correct the incompatibilities indicated in Article 1 of this Decision but deviating from those referred to in Article 2 must be notified as soon as possible, taking into account the time-scale necessary to carry out the national procedures without undue delay, and require prior acceptance by the Commission pursuant to Article 9(3) of Directive [2003/87]. Any other amendments of the [Polish NAP], apart from those made to comply with Article 2 of this Decision, are inadmissible.
Article 4
This Decision is addressed to the Republic of Poland.”’
The procedure before the General Court and the judgment under appeal
By application lodged at the Registry of the General Court on 28 May 2007, the Republic of Poland brought an action for annulment of the contested decision.
By order of 5 October 2007, the President of the Second Chamber of the General Court granted the United Kingdom of Great Britain and Northern Ireland leave to intervene in support of the form of order sought by the Commission. By orders of 19 November 2007 and 10 April 2008, respectively, first the Republic of Lithuania and second the Slovak Republic and Hungary were granted leave to intervene in support of the form of order sought by the Republic of Poland during the oral procedure.
In support of its action, the Republic of Poland made nine pleas alleging, essentially, first, infringement of the provisions of Directive 2003/87, namely Article 9(1) and (3), criteria Nos 1 to 3 and 12 of Annex III, and Article 13(2) of the Directive, second, infringement of the right to take cognisance, during the procedure, of the evidence on the basis of which the contested decision was adopted and an attack on its national energy security.
The Commission requested the General Court to dismiss the action.
By the judgment under appeal, the General Court annulled the contested decision.
First of all, in paragraphs 32 to 46 of that judgment, the Court examined the first plea in the action, claiming illegal adoption of the contested decision after the expiry of the three-month period prescribed by Article 9(3) of Directive 2003/87. It held that that period had started to run as from the notification of the national allocation plan by the Republic of Poland, namely on 30 June 2006, notwithstanding that the plan was incomplete. The Court however held that the objections raised by the Commission, by letter of 30 August 2006, with regard to certain aspects of the plan, had the effect of suspending that period. In those circumstances, in paragraph 47 of the judgment under appeal, it dismissed that plea as unfounded.
Second, in paragraphs 70 to 162 of the judgment under appeal, the Court examined the second plea, claiming infringement of the duty to state reasons and of Article 9 of Directive 2003/87.
In paragraphs 70 to 78 of the judgment under appeal, the Court examined the foundation for the Commission’s argument that the Republic of Poland had submitted a new plea at the reply stage, alleging the infringement of Article 9(3) of Directive 2003/87. According to the Commission, the second plea concerned only the manner in which it used the data contained in the Polish NAP when it was being assessed. The Court, in paragraph 79 of that judgment, rejected the existence of such a new plea.
Paragraphs 80 to 98 of the judgment under appeal deal with the preliminary observations concerning the examination of the foundation of the second plea. In those paragraphs, the Court recalls the aims pursued by Directive 2003/87, the allocation of powers between the Commission and the Member States by virtue of its provisions, and, finally, the extent of the judicial review exercised by the Community judicature over a decision such as the contested decision.
In paragraphs 99 to 133 of the judgment under appeal the Court examined the second part of the second plea, by which the Republic of Poland submitted that the Commission infringed Article 9(1) and (3) of Directive 2003/87. According to the Court, the Commission exceeded its power of review under Article 9(3) of that Directive. First, it criticised it for not having limited itself to checking the compatibility of the Polish NAP and for replacing the data contained in the Polish NAP with its own data, obtained as a result of its own method of analysis. Second, it considered that the Commission had exceeded the powers conferred on it by that provision by itself fixing a maximum level for the total quantity of allowances to be allocated in the operative part of the contested decision.
The Court examined, for the sake of completeness, in paragraphs 134 to 152 of the judgment under appeal, whether the first part of the second plea, alleging the infringement of the obligation to state reasons, was well founded. Having regard to the burden of proof incumbent upon it, the Commission has not provided anything in the contested decision capable of sufficiently explaining in what way the choice of the method of economic analysis and the data used by the Republic of Poland were contrary to European Union law. Thus, in paragraph 153 of the judgment under appeal, the Court held that part of the second plea to be well founded.
In those circumstances, the Court upheld both parts of the second plea and annulled Article 1(1), 2(1) and 3(1) of the contested decision.
Finally, in paragraphs 155 to 162 of the judgment under appeal, the Court ruled on the consequences of annulment of those provisions of the contested decision on the other provisions of the decision. Taking the view that the annulled provisions were not severable from the remainder of that decision, for the purposes of the case-law, the Court held, in paragraph 163 of the judgment under appeal, that the decision should be annulled in its entirety, without examining the other pleas raised in support of the action.
Procedure before the Court of Justice and form of order sought by the parties
By order of the President of the Court of 28 June 2010, the Kingdom of Denmark was granted leave to intervene in support of the form of order sought by the Commission, and the Czech Republic and Romania were granted leave to intervene in support of the form of order sought by the Republic of Poland.
By its appeal, the Commission asks the Court to:
—
set aside the judgment under appeal; and
—
order the Republic of Poland to pay the costs.
The Kingdom of Denmark requests the Court to set aside the judgment under appeal.
The United Kingdom requests the Court to uphold the appeal and to set aside the judgment under appeal, except in relation to the first plea.
The Republic of Poland requests the Court:
—
to dismiss the appeal in its entirety on the basis of Article 116 (1), first indent, of the Rules of Procedure of the Court of Justice of the European Union;
—
were the Court not to dismiss the appeal in its entirety, to examine and to rule on the form of order, in whole, submitted at first instance and in particular to examine and rule on the first plea of the application initiating proceedings, in accordance with Article 116(1), second indent, of the Rules of Procedure of the Court; and
—
were the Court not to dismiss the appeal in its entirety, and not to rule on the form of order as stated in the second indent above, to rule on the form of order sought at first instance in the third to ninth pleas, after examination of the case by the Court or by the General Court, as decided by the Court at its discretion; and
—
order the Commission to pay the costs.
The Czech Republic requests the Court to:
—
dismiss the appeal; and
—
order the Commission to pay the costs.
Romania endorses the form of order sought by the Republic of Poland.
Consideration of the appeal
In support of its appeal, the Commission relies on four pleas in law. First, the General Court infringed Article 48(2) of its Rules of Procedure, ruled
ultra petita
and exceeded its powers of review. Second, it made an error of law in its interpretation of Article 9(3) of Directive 2003/87. Third, it misinterpreted the duty to state reasons laid down in Article 253 EC and Article 9(3) of that directive. Finally, fourth, the Court also erred in its legal classification of Articles 1(1), 2(1) and 3(1) of the contested decision, when it considered that those provisions were not severable from the other provisions of that decision.
The first plea, alleging infringement by the General Court of Article 48(2) of its Rules of Procedure and of the prohibition on ruling ultra petita and that it exceeded its powers of review
Arguments of the parties
According to the Commission, the General Court infringed Article 48(2) of the Rules of Procedure and the prohibition on ruling
ultra petita
. It also exceeded the limits of its powers of review, to the extent that it examined, as the second part of the second plea of the annulment action, the alleged infringement of Article 9(1) and (3) of Directive 2003/87. Such a plea is however in the view of the Commission inadmissible since it is not apparent from the arguments submitted by the Republic of Poland in its application. The General Court, on its own initiative, determined the meaning of that second plea and the provisions of European Union law which it was alleged to have infringed. In the Commission’s view, the Republic of Poland’s arguments in its reply can also not be regarded as amplifying a plea stated previously in its application.
The Republic of Poland submits that that plea be rejected. The second part of the second plea was already drafted, in a manner compatible with the case-law of the Court of Justice, at the stage of the application. Although that part had been drafted in general terms, it was sufficiently clear. The claims submitted by the Republic of Poland, at the stage of the reply, served only to amplify and clarify a plea stated earlier.
In addition, Directive 2003/87 is not a legal act that has been greatly elaborated. The entire procedure for notification of the national allocation plans by the Member States to the Commission and their analysis by the Commission are governed only by a single article of that directive, that is to say Article 9 thereof, consisting in paragraphs 1 to 3. Given that the pleas submitted in the application referred to specific infringements by the Commission in the course of that analysis, it would be difficult to claim that there was no discernible link with those provisions.
Findings of the Court
The first plea in the appeal concerns paragraphs 70 to 79 of the judgment under appeal. In paragraph 70, the Court found that the second plea is divided into two parts. The first part alleges that the Commission infringed the duty to state reasons and the second that the provisions of Article 9(1) and (3) of Directive 2003/87 had been misinterpreted and misapplied. Second, in paragraphs 71 to 78 of the judgment, the Court examined the Commission’s complaint that the second part of the second plea was a new plea introduced by the Republic of Poland at the reply stage and should, consequently, pursuant to Article 44(1)(c) and Article 48(2) of the Rules of Procedure of the General Court, be declared inadmissible. It held that the arguments concerning the infringement, by the Commission, of Article 9(3) of the Directive had already been made at the application stage and that the additional arguments advanced by the Republic of Poland at the reply stage merely amplified that part. Thus, in paragraph 79 of the judgment, it rejected that complaint.
In that regard it should be recalled that under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that Statute, and under Article 44(1)(c) of the Rules of Procedure of the General Court, all applications must state the subject-matter of the dispute, the form of order sought and a brief statement of the pleas in law on which the application is based.
In addition, it is apparent from Article 48(2) of the Rules of the Procedure of the General Court that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. It is clear from the case-law that a plea which may be regarded as amplifying a plea made previously, whether directly or by implication, in the original application must be considered admissible (see, inter alia, Case
306/81
Verros
v
Parliament
[1983] ECR 1755
, paragraph 9; Case
C-430/00 P
Dürbeck
v
Commission
[2001] ECR I-8457
, paragraph 17; Case
C-412/05 P
Alcon
v
OHIM
[2007] ECR I-3569
, paragraphs 38 to 40; Case
C-71/07 P
Campoli
v
Commission
[2008] ECR I-5887
, paragraph 63; and Case
C-485/08 P
Gualtieri
v
Commission
[2010] ECR I-3009
, paragraph 37).
Contrary to what is claimed by the Commission, the General Court was right to hold that the Republic of Poland had alleged, since the application stage, that the Commission had exceeded the powers conferred on it by Article 9(3) of Directive 2003/87, which relate to its power of evaluation of the national allocation plans. The plea concerning the Commission’s misinterpretation and misapplication of that provision was already present, albeit embryonically, in the arguments in the application initiating proceedings. The plea was present in the arguments that, by not examining the data which the Republic of Poland had submitted in its national allocation plan and by limiting itself to the introduction of its own data, the Commission had exceeded its powers.
It is not in dispute that, as the General Court stated in paragraph 75 of the judgment under appeal, the Republic of Poland referred to Article 9(3) of Directive 2003/87, in the context of the second plea, in paragraph 54 of the application. While that Member State expressed that argument in greater detail and more precisely in its reply, the fact remains that it was entitled to amplify its arguments in that regard.
Furthermore, it should be recalled that Article 9(3) of Directive 2003/87 constitutes the legal basis for adoption of the contested decision and there is a close connection between that paragraph and Article 9(1). As the Advocate General stated in paragraph 29 of her Opinion, in so far as the Commission exceeds its powers of review of a national allocation plan conferred upon it by Article 9(3) of Directive 2003/87, it encroaches on the Member States’ powers to develop their own national allocation plan under Article 9(1) thereof.
It follows from those considerations that the General Court, by declaring the second part of the second plea of the action for annulment admissible, did not err in law in its decision. The first ground of appeal must, therefore, be rejected.
The second plea, alleging an error of law in the interpretation of Article 9(3) of Directive 2003/87
By its second plea, the Commission complains that the General Court made an error of law in the interpretation of Article 9(3) of Directive 2003/87. After having criticised the general observations made by the Court, in particular with regard to the nature of the review exercised by the Commission under Article 9(3) of that directive, the Commission submits arguments which can be divided into two parts concerning, respectively, an alleged infringement of the principle of equal treatment and an alleged disregard of the objectives of that directive.
Nature of the Commission review pursuant to Article 9(3) of Directive 2003/87
– Arguments of the parties
The Commission recalls that, according to the General Court, by replacing the data contained in the Polish NAP by its ‘own data’ obtained by its own method of evaluation of the Member States’ national allocation plans, and by fixing the maximum level for the total quantity of allowances to be allocated by the Republic of Poland, the Commission modified the allocation of powers between the Commission and the Member States, as provided for in Articles 9 and 11 of Directive 2003/87 and exceeded its powers.
By doing so, the General Court is said to have disregarded the extent of the Commission’s competences concerning the analysis of national allocation plans as they result from Article 9(3) of Directive 2003/87. By classifying the Commission’s review power as ‘severely limited’, it restricted itself to the literal content of the first sentence of that provision without taking into account the provision as a whole, the objective of the directive or the principle of equality of treatment.
The Commission’s review powers under Article 9 of Directive 2003/87 should not in its view be interpreted as a review of measures transposing a directive. The
ex ante
review of national allocation plans differs from the
ex post
review provided for under Article 226 EC, pursuant to which the Commission must respect the choice of the Member States with regard to the form and methods to achieve the result prescribed by that Directive. Article 9 has a legislative character which is directly binding on the Member States. The freedom enjoyed by those Member States in the drawing up of the national allocation plans is considerably limited by Article 9(1) of the Directive and by the criteria listed in Annex III to Directive 2003/87. In addition, they must take into account the guidelines for the implementation of those criteria drawn up by the Commission pursuant to Article 9(1) of that Directive and the discussions led by the committee referred to in Article 23(1) thereof.
The Republic of Poland considers that all the arguments rehearsed by the Commission serve to confirm that it failed to observe the limits of its powers as laid down in Directive 2003/87. While acknowledging that a national allocation plan is not a classical national measure transposing a Directive, that Member State observes that it is unaware of any cases of direct application of Article 9 of the Directive. The Member States must adopt the necessary national measures beforehand. In addition, the Commission also has recourse to
ex ante
review measures in other fields, despite the fact that classical methods of transposing Directives are at issue. That is the case inter alia for draft measures which the Member States intend to adopt in the context of Directive 94/62/EC of the European Parliament and of the Council of 20 December 1994 on packaging and packaging waste (
OJ 1994 L 365, p. 10
).
Even if the reasoning of the Commission that, from the point of view of the effectiveness of the greenhouse gas emission allowance trading scheme as a whole, an interpretation other than that adopted by the General Court would be appropriate, that institution cannot confer on itself powers which the European Union legislature did not confer upon it, in order to improve the wording of certain European Union legal provisions.
– Findings of the Court
The Commission’s arguments relate to paragraphs 82 to 92 of the judgment under appeal, concerning the allocation of powers between the Commission and the Member States, as provided for in Articles 9 and 11 of Directive 2003/87.
In those paragraphs, the General Court ruled that only the Member States have the power, first, to draw up their national allocation plan and, second, to take final decisions fixing inter alia the total quantity of greenhouse gas emission allowances to be allocated. When exercising their competences, they have a certain margin for manoeuvre. The Commission is entitled, under Article 9(3) of Directive 2003/87, first, to verify the conformity of the national allocation plans with the criteria set out in the Directive and, second, to reject the plans if they are incompatible with those criteria and provisions. The Commission’s review power is therefore limited to a review of legality.
In the present case, as correctly pointed out by the General Court in paragraphs 84 and 89 of the judgment under appeal, Directive 2003/87 determines clearly and explicitly, in Article 9(1) and (3) and in Article 11(2), the allocation of powers between the Commission and the Member States for the drawing-up, review and implementation of the national allocation plans, for the purposes of implementing a trading scheme for greenhouse gas emission allowances. With regard to the substantive limits of that power, the Commission is empowered only to verify the conformity of the measures taken by the Member State with the criteria set out in Annex III and the provisions of Article 10 of the Directive.
Contrary to what is argued by the Commission, the General Court cannot be criticised for having relied, in paragraph 82 of the judgment under appeal, on the third paragraph of Article 249 EC in order to assess the question of the allocation of powers between the Commission and the Member States, as provided for in Articles 9 and 11 of Directive 2003/87. The principle that a directive is binding as to the result to be achieved, upon each Member State to which it is addressed, but leaves to the national authorities the choice of form and methods, applies, in principle, in relation to the whole directive.
It is true that there may be great differences in the types of obligations which directives impose on the Member States and therefore in the results which they must achieve. It is also common ground that provisions of a directive which concern only the relations between the Member States and the Commission may not require to be transposed (see, to that effect, Case
C-32/05
Commission
v
Luxembourg
[2006] ECR I-11323
, paragraphs 35 and 36). That is however irrelevant for the outcome of the present dispute. It cannot be denied that Articles 9 and 11 of Directive 2003/87 govern the respective roles of the Commission and the Member States in the context of the procedure for adoption of the national allocation plans, that is to say the allocation of powers between them. Those provisions make it possible to determine whether the Member States enjoy a margin for manoeuvre when drawing up their plan and, as the case may be, what is the scope thereof.
In the present case, it cannot be denied that Directive 2003/87 does not lay down a particular method for elaboration of a national allocation plan or for the fixing of the total quantity of greenhouse gas emission allowances to be granted. Indeed on the contrary, Annex III, point 1, of that directive expressly provides that the Member States must lay down the total quantity of allowances to be allocated taking into account, inter alia, the national energy policy and the national climate change programme.
Thus, as held by the General Court in paragraph 88 of the judgment under appeal, the Member States have a certain margin for manoeuvre in transposing Directive 2003/87 and, therefore, in choosing the measures which they consider most appropriate to achieve, in the specific context of the national energy market, the objective laid down by that Directive.
With regard to the fact that, in accordance with Article 9 of Directive 2003/87, the national allocation plans are assessed by the Commission
ex ante
, such a review power differs, clearly, in many respects from the ex post review provided for under Article 226 EC. That fact cannot however result in the
ex ante
review having to go beyond a review of legality.
It follows from the foregoing that that the criticisms levelled by the Commission against the general reasoning of the General Court concerning the allocation of competences between the Commission and the Member States as laid down in Directive 2003/87 must be rejected.
First part of the second plea in law, alleging infringement of the principle of equal treatment
– Arguments of the parties
The Commission submits that, in determining the nature and extent of its power of review and the exercise thereof, under Article 9(3) of Directive 2003/87, the General Court made an error in law which results, in essence, in infringement of the principle of equal treatment.
The Court rejected in particular the argument that the consequence of that principle is that the compatibility of the national allocation plans with the criteria laid down in Annex III to Directive 2003/87 must be determined on the basis of the assessment method prepared by the Commission and with regard to updated data coming, in respect of each Member State, from the same source. The Commission was said to have allegedly exceeded its powers because it failed in the first instance to test the compatibility of the data contained in the Polish NAP against the criteria set out in Annex III to that directive.
The Commission maintains that the context of that criticism should rather be a possible infringement of the duty to state reasons than that of infringement of Article 9(1) and (3) of Directive 2003/87. In any case, the allegation is unfounded.
First, the argument that Commission replaced the ‘data’ used in the Polish NAP with ‘its own data’ is unfounded. With regard to the data concerning the actual CO
emissions, it used, when assessing the Polish NAP, data coming directly from the operators of installations referred to by Directive 2003/87, verified in accordance with Decision No 280/2004 and published in the Community Independent Transaction Log (CITL). With regard to the estimates concerning the evolution of the gross domestic product (GDP) for the period 2005-2010, they were based on national statistics drawn up in cooperation with national experts.
Second, with regard to the interpretation of Article 9(3) of Directive 2003/87, in the light of the principle of equal treatment, allowing each Member State to use its own data, developed in accordance with its own criteria, would be likely to create inequalities between those States. The objective of that Directive, and the requirement to communicate to the Commission all the national allocation plans more or less at the same time, confirms that those plans ‘are in comparable situations’ and must be assessed on the basis of the most recent data in respect of the same period, with regard to the CO
emissions and the GDP evolution estimates available at the same time for each Member State. The coordinated review method based on the use of data and/or parameters coming from the same source and concerning the same period can be justified in particular by the objectives of Directive 2003/87, that is to say to reduce greenhouse gas emissions, contribute to preserving the integrity of the internal market and to avoid distortions of competition.
Finally, the reasoning of the General Court contradicts that applied in its order of 20 October 2008 in Case T-208/07
BOT Elektrownia Bełchatów and Others
v
Commission
. In that order, the General Court accepted the time-scale for the introduction of amendments to their national allocation plan made by the Member States, holding that it follows both from the wording of the Directive and from the general structure and objectives of the scheme which it establishes that a Member State remains entitled to propose amendments to its national allocation plan after the plan has been notified to the Commission, until the adoption of the decision which that Member State must make pursuant to Article 11(2) of the Directive. If the Member State concerned were to enjoy a right to introduce at any time amendments to its national allocation plan which would lead to an increase in the total quantity of allowances to be allocated following publication of the economic data and/or more up-to-date estimates, the objective of that Directive and the functioning of the trading scheme for greenhouse gas emission allowances would be destined for failure.
The Republic of Poland contends that the first part of the second plea should be rejected. Directive 2003/87 obliges the Commission to carry out an individual analysis of each national allocation plan. The purpose of that Directive is not that the Member States should reduce emissions but to ensure that the Kyoto Protocol commitments are fulfilled, with the least possible diminution of economic development. The Commission must take into account, in the analysis of the national allocation plans, the actual situation of each Member State, including the extent to which they have achieved the objectives of that protocol, the individual needs of each Member State based on its specific economic situation or the degree of development of the national economy. The fact that the Member States are treated differently is objectively justified in the light of the principle of equal treatment, taking into account the characteristics of each Member State’s energy market and the extent to which they have fulfilled their Kyoto Protocol commitments.
– Findings of the Court
The first part of the second ground of appeal concerns paragraphs 100 to 120 of the judgment under appeal. In those paragraphs, the General Court found that the review power conferred on the Commission under Article 9(3) of Directive 2003/87 is limited to review of the conformity of the data in each national allocation plan with the criteria set out in Annex III to that directive and that the Commission is not entitled to replace the data inserted by the Member State in its plan with its own data. The Member States alone have the power to draw up a national allocation plan and to take a final decision on the total quantity of allowances to allocate. The General Court explained, in paragraph 104, that ‘application of the principle of equal treatment between the Member States cannot have the effect of modifying the allocation of powers between the Member States and the Commission, as provided for by [that] Directive’.
At the outset, it should be recalled that, according to settled case-law, observance of the principle of equality requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, in particular, Case
C-127/07
Arcelor Atlantique and Lorraine and Others
[2008] ECR I-9895
, paragraph 23).
The requirement that that principle be observed cannot however modify the allocation of powers between the Commission and the Member States, as laid down in a European Union provision. Thus, as confirmed in paragraph 47 of the present judgment, Article 9(3) confers on the Commission the power only to verify legality of the national allocation plan, permitting it to reject a plan which is not in conformity with the criteria set out in Annex III to Directive 2003/87 or the provisions of Article 10 thereof.
With regard to the extent of such review, the General Court held, in paragraph 101 of the judgment under appeal, that that power of review necessarily revolves around the data contained in the Polish NAP. It is for the Commission to review the choice of the data of the Member State concerned for the purposes of drawing up its national allocation plan.
In those circumstances, the General Court cannot be criticised for having considered that the Commission was under an obligation to examine the data included by the Republic of Poland in its national allocation plan. If the Commission had doubts regarding those data, it was for it to seek clarification from the competent national authorities or even to prove that those data were not in conformity with the criteria set out in Annex III to Directive 2003/87.
The arguments submitted by the Commission concerning the simultaneous character of the review of the national allocation plans are not capable of affecting this finding. Those arguments are based on an erroneous conception of the Commission’s power of review under Article 9(3) of Directive 2003/87. As the Advocate General stated in paragraph 68 of her Opinion, any differences with regard to the data and methods of evaluation applied by the Member States are an expression of their margin for manoeuvre, which the Commission must respect in the context of its conformity review.
In that context, it must be noted that the Commission may sufficiently ensure equal treatment between the Member States by examining the plan submitted by each of them with the same degree of diligence. It should also be recalled that the Commission is entitled to choose a point for comparison between the plans drawn up by each of those States. As the General Court states in paragraph 102 of the judgment under appeal, the Commission may inter alia draw up ‘its own method of assessing national allocation plans’ based on the data which it considers the most appropriate and use it as a tool for comparison in order to verify whether the national allocation plans are compatible with the criteria contained in Annex III to Directive 2003/87.
Finally, with regard to the Commission’s argument that the General Court, by holding that the Commission could not substitute for the data used by the Republic of Poland in its plan the data obtained by its own method of evaluation, wrongly held that the last mentioned data was the Commission’s ‘own data’, that argument is based on an incorrect reading of paragraphs 100 to 103 and 120 of the judgment under appeal. As the Advocate General stated in paragraph 76 of her Opinion, the General Court, in holding that the Commission could not substitute its own data for that used by Republic of Poland, was not criticising the choice or source of the data but the fact that the Commission did not review the compatibility of the data contained in the Polish national allocation plan with the criteria laid down in Annex III to Directive 2003/87.
In the light of those considerations, the first part of the second ground of appeal must be rejected as unfounded.
The second part of the second ground of appeal, alleging disregard of the objective of Directive 2003/87
– Arguments of the parties
The Commission considers that, when interpreting Article 9(3) of Directive 2003/87, the General Court committed an error of law in disregarding the objective of the Directive.
The powers of review enjoyed by the Commission under that provision must be read and interpreted in the light of the objectives of Directive 2003/87. That Directive establishes, pursuant to Article 1 thereof, a scheme for greenhouse gas emission allowance trading in order to promote reduction of greenhouse gas emissions in a cost-effective and economically efficient manner. The Court acknowledged, in its judgment in
Arcelor Atlantique and Lorraine and Others
, that the ultimate objective of that scheme is protection of the environment and that that scheme encourages and promotes the pursuit of the lowest cost of achieving a given amount of emissions reductions. It follows from that judgment that that objective can be achieved only if the demand for allowances outstrips supply on the Community allowance market. Moreover, pursuant to recital 7 in the preamble to Directive 2003/87, the implementation of that scheme must contribute to preserving the integrity of the internal market and to avoiding distortions of competition.
Contrary to what was held by the General Court in the judgment under appeal, the review carried out by the Commission under Article 9 of Directive 2003/87 cannot in its view be a ‘severely limited’ one, reduced to a mere verification of the data used by the Member States in their national allocation plans. In addition, it would be possible to prove
ex post
that the unconditional recognition of the CO
emissions data stated in the Polish NAP, and of the proposed total quantity of allowances, would have led to a result contrary not only to criteria Nos 1 to 3 of Annex III to Directive 2003/87 but also to an increase in the CO
emission allowances on the market.
The Commission also contests the General Court’s finding that the contested decision altered the allocation of powers between it and the Member States, as provided for under Articles 9 and 11 of Directive 2003/97.
The Republic of Poland considers that the second part of the second ground of appeal should be rejected. While conceding that Article 9(3) of Directive 2003/87 is imprecise, it states that recourse to a teleological interpretation of that Directive may not lead to giving that provision a meaning contrary to that resulting from the literal interpretation thereof.
Furthermore, the reduction of greenhouse gas emissions is not an autonomous objective of Directive 2003/87. There is no basis in the provisions of that Directive, in the functioning of the trading scheme for greenhouse gas emission allowances or in the support for the reduction of emissions by the Member States for holding the Member States bound to reduce their emissions by an amount greater than that required pursuant to the international obligations of the European Union. In addition, the objective of that Directive is not to reduce greenhouse gas emissions ‘at any cost’ but to reduce them ‘with the least possible diminution of economic development and employment’. It aims to establish a scheme for greenhouse gas emission allowance trading within the Community which makes it possible to achieve those objectives ‘in a cost-effective and economically efficient manner’.
– Findings of the Court
The second part of the second ground of appeal concerns paragraphs 121 to 131 of the judgment under appeal. In those paragraphs, the General Court considered that the Commission, by fixing in the contested decision a specific quantity of allowances, any exceeding of which would be regarded as incompatible with the criteria established by Directive 2003/87, and by rejecting the Polish NAP on the basis that the total quantity of allowances proposed therein exceeded that threshold, exceeded the limits of its power of review under Articles 9(3) of that Directive.
In that regard, it should be recalled that the declared principal objective of Directive 2003/87 is to reduce greenhouse gas emissions substantially in order to be able to fulfil the commitments of the European Union and its Member States under the Kyoto Protocol. That objective must be achieved in compliance with a series of ‘sub-objectives’ and through recourse to certain instruments. The principal instrument for that purpose is constituted by the Community scheme for greenhouse gas emissions trading (Article 1 of Directive 2003/87 and recital 2 in its preamble). Article 1 states that that scheme promotes emissions reductions in a cost-effective and economically efficient manner. The other sub-objectives to be fulfilled by that scheme are, inter alia, as set out in recitals 5 and 7 in the preamble to the Directive, the safeguarding of economic development and employment and the preservation of the integrity of the internal market and of conditions of competition.
In the present case, even supposing that the approach favoured by the Commission could improve the functioning of the European Union scheme for greenhouse gas emissions trading and thus make it possible to achieve more efficiently the objective of reducing greenhouse gas emissions substantially, that fact could not alter the allocation of powers between the Commission and the Member States as provided for in Articles 9 and 11 of Directive 2003/87.
In an area of shared competences, such as that of environmental protection, it is for the European Union legislature to determine the measures which it considers necessary to achieve the intended objectives, while observing the principles of subsidiarity and proportionality enshrined in Article 5 EC.
The European Union legislature’s intention to confer on the Commission only a power to review the conformity of the national allocation plans with the criteria laid down in Annex III to Directive 2003/87 and the provisions of Article 10 thereof, and not a power to substitute or to harmonise which would include the power to fix a maximum quantity of greenhouse gas emission allowances to be allocated, is apparent both from Article 9(3) of Directive 2003/87 and the
travaux préparatoires
of that Directive. Thus, to hold that the Commission may fix such a maximum quantity would go beyond the limits of teleological interpretation of that Directive and be tantamount to conferring on that institution powers which lacked any legal basis.
As is already clear from paragraph 47 above, the General Court was therefore correct to hold, in paragraph 89 of the judgment under appeal, that it is unequivocally clear from Article 9(3) of that Directive that the Commission’s role is limited to verifying the conformity of a Member State’s national allocation plan with the criteria set out in Annex III to the Directive and the provisions of Article 10. It rightly held that the Commission is entitled to verify that conformity and to reject the national allocation plan on the grounds of incompatibility with those criteria or those provisions.
In that regard, it should be noted that the European Union legislature, which alone has power to amend Directive 2003/87, considered it necessary to amend Article 9 thereof by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community (
OJ 2009 L 140, p. 63
). That amending Directive provides for the introduction of a more harmonised scheme in order to better exploit the benefits of emission trading, to avoid distortions in the market and to facilitate the linking of the various emissions trading schemes.
With regard to the Commission’s argument that it would be possible to prove
ex post
that the unconditional recognition of the CO
emissions data and the total quantity of allowances, stated in the Polish NAP, would have led to a result contrary to criteria Nos 1 to 3 of Annex III to Directive 2003/87, that allegation is based on an erroneous interpretation of the judgment under appeal. As the Advocate General states in paragraph 85 of her Opinion, the General Court acknowledged that the Commission may reject a national allocation plan which does not conform to the criteria listed in that annex and did not therefore consider that the Commission was obliged unconditionally to accept the data included in the Polish NAP.
With regard to the Commission’s argument that, in the interests of procedural economy, it should be given the right to fix the maximum quantity of greenhouse gas emission allowances, it is certainly true that such an approach would reduce the risk of successive decisions being adopted which rejected national allocation plans on account of their incompatibility with the criteria listed in Annex III to Directive 2003/87/EC. In that context, it is however important to state that the Commission would not exceed its powers where it stated, in the operative part of a decision to reject a national allocation plan, without fixing in a binding manner the maximum quantity of such allowances, that it would not reject amendments to that plan where they were in conformity with the proposals and recommendations made in that rejection decision. Such a procedure would be in conformity with the principle of loyal cooperation between the Member States and the Commission and would also meet the objectives of procedural economy.
It follows that the Commission is not justified in claiming that the General Court, by its interpretation of Article 9(3) of Directive 2003/87, disregarded the objectives pursued by that Directive. The second part of the second ground of appeal must therefore be rejected as unfounded.
Since the objections formulated by the Commission in respect of the general considerations of the General Court concerning the allocation of powers between the Commission and the Member States as provided for under Directive 2003/87 have been rejected, and since neither part of the second ground of appeal could be accepted, that ground of appeal must be rejected as unfounded.
The third ground of appeal, alleging the erroneous interpretation of the duty to state reasons referred to in Article 253 EC and in Article 9(3) of Directive 2003/87
Arguments of the parties
The Commission argues that the General Court erred in its interpretation of the scope of the duty to state reasons enshrined in Article 253 EC. It considered, wrongly, that the Commission had rejected, without reason and ‘without a relevant statement of reasons’ the method of economic analysis adopted by the Republic of Poland and the data included by it in its national allocation plan. It is not necessary that the statement of reasons for a measure should detail all the relevant matters of law and fact. That statement of reasons should derive from the context in which the measure was adopted and from all the legal rules governing the matter concerned. The statement of reasons given in the contested decision was in any case sufficient to enable the Republic of Poland to understand why the data in question were not taken into consideration and the method of analysis adopted rejected. In addition, that Member State was in possession of supplementary elements of law and fact which enabled it to understand those reasons.
The Republic of Poland contends that that ground should be rejected. The Commission is said to be wrong to argue that the duty to state reasons for the decision to reject the Polish NAP was ‘limited in scope’ and that there was no need to explain the precise reasons for rejecting the data or the methods of analysis used in such a plan.
Findings of the Court
The third ground of appeal concerns paragraphs 135 to 153 of the judgment under appeal, in which the General Court examined, for the sake of completeness, whether the first part of the second plea in law, alleging infringement of the duty to state reasons, was well founded. In paragraphs 136 to 143 of the judgment under appeal, the General Court first of all ruled on the extent of that obligation. After having recalled the case-law concerning Article 253 EC, it held, in paragraph 143 of the judgment, that ‘it was therefore the duty of the Commission, in the exercise of its review power under Article 9(3) of [Directive 2003/87], to explain in what way the instruments used by the Republic of Poland in drawing up the [Polish] NAP were incompatible with the criteria in Annex III and the provisions of Article 10 of [that] Directive’. Second, in paragraphs 144 to 152 of that judgment, the General Court found that the Commission had infringed that obligation. It thus concluded, in paragraph 153 of the judgment under appeal, that that first part was well founded.
It must be held that that ground of appeal is directed, as is apparent from paragraph 134 of the judgment under appeal, against a ground included in that judgment for the sake of completeness and accordingly, even supposing the ground to be well founded, it is not such as to lead to the judgment being set aside (see, inter alia, Case
C-164/01 P
van den Berg
v
Council and Commission
[2004] ECR I-10225
, paragraph 60, and Joined Cases
C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P
Dansk Rørindustri and Others
v
Commission
[2005] ECR I-5425
, paragraph 148).
The question whether the Commission infringed its duty to state reasons when it rejected the method of economic analysis adopted by the Republic of Poland, and the data included in the Polish NAP, is irrelevant having regard to the General Court’s assessment when it held, correctly, in paragraph 132 of the judgment under appeal, that the Commission had infringed Article 9(1) and (3) of the Directive by, first, replacing the data contained in the NAP with its own data, obtained from its own method of assessing the NAPs of the Member States and, second, fixing the maximum level for the total quantity of allowances to be allocated by the Republic of Poland during the period from 2008 to 2012.
In those circumstances, that ground of appeal must be rejected as ineffective.
The fourth ground of appeal, alleging an error of law in the analysis of the non-severable nature of Article 1(1), Article 2(1) and Article 3(1) of the contested decision
Arguments of the parties
The Commission criticises the General Court for having considered that Article 1(1), Article 2(1) and Article 3(1) of the contested decision are not severable from the other provisions of the contested decision and for having, consequently, annulled that decision in its entirety.
The judgment under appeal is based, according to the Commission, on an incorrect understanding of the severability of provisions of European Union measures, and of the case-law cited by the General Court in paragraph 156 of the judgment under appeal, and of the contested decision. According to the Commission, it is settled case-law that the requirement of severability is not satisfied where the partial annulment of an act would have the effect of altering its substance. However, that does not apply in the case of any alteration of the content of the measure. Altering the substance of a measure means turning it into an act which its author would not have had the intention of adopting or would not have adopted.
The Commission considers that the first paragraphs of Articles 1 to 3 of the contested decision are interlinked and that the other paragraphs both of Article 1 and of Article 2 of that decision are severable from the first paragraph of each of those Articles. In addition, there is a severable link between criteria Nos 1 to 3 stated in Annex III to Directive 2003/87, on the one hand, and criteria Nos 5, 6, 10 and 12 listed in that annex, on the other hand, in the same way that such a link exists between the total quantity of allowances to be allocated and other methods relating to possible future amendments of the national allocation plan which can be found in Article 3(2) and (3) of that decision.
The Republic of Poland requests that the Court reject this ground of appeal. The provisions of the contested decision annulled by the judgment under appeal constitute an essential element of that decision. Without those provisions, that decision is devoid of purpose.
Findings of the Court
The fourth ground of appeal relates to paragraphs 155 to 162 of the judgment under appeal which concern the question whether Article 1(1), 2(1) and 3(1) of the contested decision are severable or not from the remainder of the decision and whether, therefore, the General Court was right to annul that decision in its entirety.
As the General Court stated in paragraph 156 of the judgment under appeal, partial annulment of a European Union act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act (see inter alia Case
C-29/99
Commission
v
Council
[2002] ECR I-11221
, paragraph 45; Case
C-239/01
Germany
v
Commission
[2003] ECR I-10333
, paragraph 33; see also, to that effect, Case
C-378/00
Commission
v
Parliament and Council
[2003] ECR I-937
, paragraph 30). Similarly, the Court has repeatedly ruled that that requirement of severability is not satisfied where the partial annulment of an act would have the effect of altering its substance (Case
C-244/03
France
v
Parliament and Council
[2005] ECR I-4021
, paragraph 13; see also, to that effect, Joined Cases
C-68/94 and C-30/95
France and Others
v
Commission
[1998] ECR I-1375
, paragraph 257, and Case C-29/99
Commission
v
Council
, cited above, paragraph 46).
In the present case, review of whether Article 1(1), Article 2(1) and Article 3(1) of the contested decision are severable from the remainder of that decision requires consideration of the scope of those provisions, in order to be able to assess whether their annulment would alter the Directive’s spirit and substance (see, to that effect, Case
C-540/03
Parliament
v
Council
[2006] ECR I-5769
, paragraph 29).
It should be noted that the provisions of the contested decision stem from the Commission’s negative assessment of the Polish NAP, as notified by the Republic of Poland. Article 1 of that decision lists various incompatibilities of that plan with one or more of the criteria laid down in Annex III to Directive 2003/87. In Article 2 of the contested decision, the Commission undertakes not to raise objections to the plan adopted after that rejection decision provided that the Member State concerned makes the amendments listed in Article 2(1) to (5). With regard to Article 3 of the contested decision, paragraph 1 thereof concerns the total quantity of greenhouse gas emission allowances to be allocated and paragraphs 2 and 3 thereof contain details regarding the implementation of the other provisions of that decision.
With regard in particular to the link between, first, Article 1(1), Article 2(1) and Article 3(1) of the contested decision and, second, the other provisions thereof, it must be concluded that, while referring to the various aspects of the Polish NAP and the various criteria listed in Annex III to Directive 2003/87, those provisions form a non-severable whole.
First, it cannot be denied that the fixing of the total quantity of greenhouse gas emission allowances to be allocated (criteria Nos 1 to 3 of Annex III to Directive 2003/87) referred to in Articles 1(1), 2(1) and 3(1) of the contested decision, is the principal element of the national allocation plans and is closely linked to the other elements of such plans.
Second, as the General Court correctly held in paragraphs 157 and 158 of the judgment under appeal, taking into account the structure of Article 1 of the contested decision, the possible annulment of some of the paragraphs of that article ‘would have the effect of reducing the number of incompatibilities with … Directive [2003/87] found in the contested decision’. With regard to the annulment of certain paragraphs of Article 2 of that decision, that ‘would have the effect of maintaining in force the Commission’s undertaking not to raise objections to the [Polish] NAP, while reducing the number of amendments subject to which that undertaking was initially given’.
Nothing in that decision makes it possible to suppose that the Polish NAP could have been considered to be compatible with Directive 2003/87 without the plan having been amended in accordance with all of the amendments listed in the last mentioned paragraph.
As correctly stated by the General Court in paragraph 161 of the judgment under appeal, a possible annulment of one of those paragraphs of Article 1 of the contested decision, and of the corresponding paragraph of Article 2 thereof ‘would replace [that] decision, according to which the [Polish] NAP could be adopted subject to five specific modifications enabling five incompatibilities with the criteria in Annex III to Directive [2003/87] to be remedied, with a different decision according to which that plan could be adopted subject to a smaller number of modifications’.
In the light of those factors, it must be held that the General Court was correct to hold, in paragraph 160 of the judgment under appeal, that any annulment of one of the paragraphs of Article 1, like that of the corresponding paragraph of Article 2, would have the effect of altering the very substance of the contested decision.
With regard to Article 3(2) and (3) of the contested decision, it need only be pointed out that those provisions contain further details regarding the implementation of the other provisions of the contested decision. Thus, in so far as Article 1(1), Article 2(1) and Article 3(1) of the contested decision are annulled, Article 3(2) and (3) become devoid of purpose
Those findings cannot be invalidated by the Commission’s allegation that altering the substance of a European Union act means turning it into an act which its author would not have had the intention of adopting or would not have adopted. In that regard, it need only be stated that the question whether partial annulment would alter the substance of the contested measure is an objective criterion, and not a subjective criterion linked to the political intention of the authority which adopted the measure at issue (see Case C-239/01
Germany
v
Commission
, paragraph 37, and Case C-244/03
France
v
Parliament and Council
, paragraph 14).
It follows from the foregoing that the General Court did not commit an error of law by holding that Article 1(1), Article 2(1) and Article 3(1) of the contested decision are not severable from the other provisions of that decision and by annulling, therefore, that decision in its entirety. The fourth ground of appeal is therefore unfounded.
Since none of the grounds of appeal submitted by the Commission has been accepted, the appeal must be dismissed.
Costs
Under Article 69(2) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful and the Republic of Poland has applied for an order for costs, the Commission must be ordered to pay the costs.
In accordance with the first subparagraph of Article 69(4) of the Rules of Procedure, the Czech Republic, the Kingdom of Denmark, Romania and the United Kingdom, which intervened in the proceedings, shall bear their own costs.

On those grounds, the Court (Second Chamber) hereby:

1.
Dismisses the appeal;

2.
Orders the European Commission to pay the costs;

3.
Orders the Czech Republic, the Kingdom of Denmark, Romania and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

[Signatures]
(
*1
)	Language of the case: Polish.