Opinion of the Advocate General — ECLI:EU:C:2017:896
Date: 2017-11-23
Language of the case: German
Subject matter: Environment;Pollution
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (First Chamber), 22 February 2018 Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Transitional regime for free allocation of quotas – National legislation excluding any possibility to correct or supplement the allocation application after the expiry of a mandatory time limit — Lawfulness — Condition (European Parliament and Council Directive 2003/87, Art. 10a; Commission Decision 2011/278, Arts 7(8) and 8) Article 10a of 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, as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, and Commission Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87, must be interpreted as meaning that they do not preclude a national provision, such as that at issue in the main proceedings, which lays down, for the submission of an application for free allocation of emission allowances for the period 2013-2020, a mandatory time limit after which the applicant has no means of correcting or supplementing its application, since that time limit is not liable to render impossible in practice or excessively difficult the submission of such an application. In that regard, it should be noted that Article 7(8) of Decision 2011/278 specifies that, where data is missing, Member States are to require the operator to justify any ‘lack of data’ and to substitute ‘partly available data’ with conservative estimates, without, however, establishing a procedure that would make it possible to correct or supplement the information provided. Similarly, while Article 8 of that decision prohibits Member States from accepting data that have not been verified as satisfactory by a verifier, that provision does not establish a time limit or a procedure for correcting unsatisfactory data. In those circumstances, in the absence of EU rules concerning the procedural requirements attaching to the submission and examination of an application for free allocation of emission allowances, it is, according to established case-law, for the domestic legal system of each Member State to determine those requirements in accordance with the principle of procedural autonomy provided, however, that those requirements are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order (principle of effectiveness) (see, to that effect, inter alia, judgment of 20 October 2016, Danqua, C‑429/15, EU:C:2016:789, paragraph 29). In that regard, it is true, as the Court has already pointed out, that the Member States, in accordance with Article 7(7) of Decision 2011/278 read in conjunction with recital 15 of that decision, must ensure that the data collected from the operators and used for free allocation of emission allowances is complete, consistent and presents the highest achievable accuracy (judgment of 8 September 2016, E.ON Kraftwerke, C‑461/15, EU:C:2016:648, paragraphs 27 and 37). However, as is clear, inter alia, from the wording of Article 7(7) and (8) of Decision 2011/278, the requirement of accuracy on the part of Member States requires the cooperation of operators and, on that basis, those operators are also required to comply with various obligations including, in particular, communicating complete, consistent data which is as accurate as possible and exercising due diligence. In those circumstances, as the Advocate General observed in points 93 and 94 of his Opinion, it must be held that the requirement of accuracy is a joint responsibility of operators and Member States and that, therefore, it cannot be held, contrary to what is claimed by INEOS, that these operators derive from Decision 2011/278 any right to the accuracy of data provided for the purposes of calculating free emission allowances that they may assert against their Member State. It follows that the effective application of that decision in no way obliges the competent national authorities to set aside a procedural rule, such as the mandatory time limit at issue in the main proceedings, in order to enable an operator to correct inaccurate data provided by itself within that time limit. (see paras 41, 42, 57, 60, 62, 68, operative part)