# C_2010063EN.01002302.xml

| 13.3.2010 | EN | Official Journal of the European Union | C 63/23 |
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13.3.2010

EN

Official Journal of the European Union

C 63/23

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Appeal brought on 4 December 2009 by the European Commission against the judgment delivered on 23 September 2009 in Case T-263/07 European Commission v Republic of Estonia

(Case C-505/09 P)

2010/C 63/38

Language of the case: Estonian

Parties

Parties

Appellant: European Commission (represented by E. Kružíková, E. White and E. Randvere, acting as Agents)

Appellant:

Other parties to the proceedings: Republic of Estonia, Republic of Lithuania, Slovak Republic, United Kingdom of Great Britain and Northern Ireland

Other parties to the proceedings:

Form of order sought

Form of order sought

| — | set aside the contested judgment; |
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set aside the contested judgment;

| — | order the Republic of Estonia to pay the costs. |
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order the Republic of Estonia to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The Commission considers that the judgment of the Court of First Instance of the European Communities (‘the Court’) should be set aside on the following grounds:

| 1. | The Court, by regarding the application as admissible in relation to Articles 1(3) and (4), 2(3) and (4), and 3(2) and (3) of the Commission’s decision of 4 May 2007 concerning the national greenhouse gas allocation plan submitted by Estonia in accordance with Directive 2003/87/EC, (1) infringed Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance. The Court wrongly found the application admissible in relation to the decision as a whole, even though the applicant adduced grounds for annulment only in relation to Articles 1(1) and (2), 2(1) and (2), and 3(1). |
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1.

The Court, by regarding the application as admissible in relation to Articles 1(3) and (4), 2(3) and (4), and 3(2) and (3) of the Commission’s decision of 4 May 2007 concerning the national greenhouse gas allocation plan submitted by Estonia in accordance with Directive 2003/87/EC, (1) infringed Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance. The Court wrongly found the application admissible in relation to the decision as a whole, even though the applicant adduced grounds for annulment only in relation to Articles 1(1) and (2), 2(1) and (2), and 3(1).

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| 2. | The Court erred in respect of Article 9(1) and (3) of the directive by misinterpreting the principle of equal treatment and also the objective of the directive, when defining the extent of the Commission’s power of review and its competence when applying Article 9(3) of the directive. The allocation plans are not classic measures for transposing a directive, which are assessed a posteriori. To accept that each Member State makes use of its own data, which is not reviewed, gives rise to a risk of unequal treatment of Member States. The objectives of the directive can be achieved only if the demand for quotas exceeds the supply. The upper limit of the total amount of quotas to be issued must be distinguished from the total amount of quotas to be issued. |
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2.

The Court erred in respect of Article 9(1) and (3) of the directive by misinterpreting the principle of equal treatment and also the objective of the directive, when defining the extent of the Commission’s power of review and its competence when applying Article 9(3) of the directive. The allocation plans are not classic measures for transposing a directive, which are assessed a posteriori. To accept that each Member State makes use of its own data, which is not reviewed, gives rise to a risk of unequal treatment of Member States. The objectives of the directive can be achieved only if the demand for quotas exceeds the supply. The upper limit of the total amount of quotas to be issued must be distinguished from the total amount of quotas to be issued.

a posteriori

| 3. | The Court misinterpreted the extent of the principle of sound administration. The drawing up of an allocation plan was the task of the Member State, and the Commission did not have competence to fill in lacunae, but only to assess the compatibility of the allocation plan with the directive. |
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3.

The Court misinterpreted the extent of the principle of sound administration. The drawing up of an allocation plan was the task of the Member State, and the Commission did not have competence to fill in lacunae, but only to assess the compatibility of the allocation plan with the directive.

| 4. | The Court erred in the legal classification of the provisions of the Commission’s decision, in finding that Articles 1(1) and (2), 2(1) and (2), and 3(1) were not separable from the other provisions of the decision and annulling the decision as a whole. There is in fact no such inseparability, and it follows clearly from the structure and grounds of the Commission’s decision that each paragraph of Article 2 has an inseparable link with the corresponding paragraph of Article 1, but there is no inseparable link with the other paragraphs of Article 2. The same applies as regards the paragraphs of Article 1. |
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4.

The Court erred in the legal classification of the provisions of the Commission’s decision, in finding that Articles 1(1) and (2), 2(1) and (2), and 3(1) were not separable from the other provisions of the decision and annulling the decision as a whole. There is in fact no such inseparability, and it follows clearly from the structure and grounds of the Commission’s decision that each paragraph of Article 2 has an inseparable link with the corresponding paragraph of Article 1, but there is no inseparable link with the other paragraphs of Article 2. The same applies as regards the paragraphs of Article 1.

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(1)  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 (OJ 2003 L 275, p. 32).

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