Opinion of the Advocate General — ECLI:EU:C:2013:46
Date: 2013-01-31
Language of the case: Latvian
Subject matter: Environment
Procedure: Action for annulment;Appeal - unfounded
Origin: Latvia

Summary — Judgment of the Court (First Chamber), 3 October 2013 1. Environment — Atmospheric pollution — Directive 2003/87 — National allocation plan for greenhouse gas emission allowances (NAP) — Notification by a Member State — No objections from the Commission within the time-limit — Effects of the expiry of the time-limit — Definitive nature of the plan (European Parliament and Council Directive 2003/87, Art. 9) 2. Environment — Atmospheric pollution — Directive 2003/87 — National allocation plan for greenhouse gas emission allowances (NAP) — NAP notification procedure — Right of the Member State concerned to propose amendments to the NAP after its notification — Lawfulness (European Parliament and Council Directive 2003/87, Art. 9(3)) 3. Environment — Atmospheric pollution — Directive 2003/87– National allocation plan for greenhouse gas emission allowances (NAP) — NAP notification procedure — Powers of the Commission to review and reject — Limitation period — Notification of a revised NAP following a rejection decision by the Commission — Subject to a time-limit of three months — No error in law committed by the General Court (European Parliament and Council Directive 2003/87, Art. 9(1) and (3)) 4. Environment — Atmospheric pollution — Directive 2003/87 — National allocation plan for greenhouse gas emission allowances (NAP) — NAP notification procedure — Powers of the Commission to review and reject — Limits — Obligation to state reasons (European Parliament and Council Directive 2003/87, Art. 9(3)) 1. Under the procedure laid down in Article 9 of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61, a national allocation plan (NAP) notified by a Member State to the Commission enjoys a presumption of legality, since, after the three-month time-limit laid down in Article 9(3) has expired, it is regarded as definitive where the Commission makes no observations, so that the Member State concerned may adopt it. (see para. 46) 2. See the text of the decision. (see para. 48) 3. The Commission is bound by a three-month time-limit in which to reject a notified NAP. The need for that time-limit follows from the timetable laid down in Articles 9(1) and 11(2) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61. Under that timetable, the plans must be notified to the Commission at least 18 months before the start of the period concerned and implemented at the latest 12 months before the start of that period by an allocation of emission allowances. When an amended NAP is notified after rejection by the Commission of its initial version, compliance with that three-month time-limit is all the more necessary since the period remaining before the implementation of the plan is considerably shorter than when the NAP was first notified. If the EU legislature considered that a three-month time-limit was sufficient for the Commission to be able to exercise its power of review and to reject a notified NAP if it fails to comply with the criteria set out in Annex III to Directive 2003/87, that time-limit must be regarded as being all the more sufficient for the purposes of review of an amended version of that NAP since the Commission has already been able to make an initial examination of the data concerning the national industry covered by the NAP. Accordingly, the General Court did not err in law by holding that the Commission’s power to reject the amended version of an NAP after an initial rejection decision of the NAP in its original version must be subject to the three-month time-limit laid down in the first sentence of Article 9(3) of Directive 2003/87. (see paras 52, 55, 58) 4. It is apparent from both Article 9(3) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61 and the travaux préparatoires to that directive that the power granted to the Commission consists only of a power to review the conformity of the NAPs with the criteria laid down in Annex III to Directive 2003/87 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. The Commission therefore has the power only to review that conformity and to reject NAPs if they are incompatible with those criteria and those provisions. Moreover, under the third sentence of Article 9(3) of Directive 2003/87, the Commission must state the reasons for any rejection decision. Such a provision thus implies action on the part of the Commission which, having regard to the objectives of efficiency and performance stated in recital 5 in the preamble to Directive 2003/87, must be limited in time whatever the stage of the procedure to examine the conformity of an NAP. (see paras 54, 57)