Opinion of the Advocate General — ECLI:EU:C:2015:64
Date: 2015-02-05
Language of the case: German
Subject matter: Environment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Second Chamber), 29 April 2015 1. Judicial proceedings — Request that the oral procedure be reopened — Application for leave to submit observations on the points of law raised by the Opinion of the Advocate General — Conditions for reopening (Statute of the Court of Justice, Art. 23; Rules of Procedure of the Court of Justice, Art. 83) 2. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Operator surrendering a number of allowances equal to the verified reported emissions — Additional verification carried out by a national authority showing an undervaluation of the emissions — Inapplicability of the penalty in the event of non-surrender of a sufficient number of allowances within the time period — Determination of the penalty within the competence of the Member States — Breach of principle of proportionality — Absence (European Parliament and Council Directive 2003/87, Arts 6(2)(e), 12(3) and 16(1) and (3)) 1. See the text of the decision. (see para. 24) 2. Article 16(3) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Directive 96/61, as amended by Directive 2004/101, must be interpreted as not applying to an operator who surrenders a number of greenhouse gas emission allowances equal to the emissions for the preceding year as reported and verified in accordance with Article 15 of that directive, where it is established, following an additional verification carried out by the competent national authority after the expiry of the time-limit for surrender, that those emissions were understated, so that the number of allowances surrendered is insufficient. It is for the Member States to determine the penalties which may be imposed in such a situation, in accordance with Article 16(1) of Directive 2003/87. In that regard, in the first place, the overall structure of Directive 2003/87 is based on the strict accounting of the issue, holding, transfer and cancellation of greenhouse gas emission allowances. The obligation on operators to surrender by 30 April of the current year, in order to have them cancelled, a number of greenhouse gas emission allowances equal to their emissions during the preceding calendar year, stated as a mandatory element of the greenhouse gas emissions permit by Article 6(2)(e) of that directive, and worded unambiguously in Article 12(3) thereof, that obligation is the only one to which that directive itself attaches, under Article 16(3) thereof, a specific penalty, whereas the penalty for any other conduct contrary to its provisions is, under Article 16(1) thereof, left to the discretion of the Member States. In the second place, the verification of emissions reports is an essential condition for the surrender of allowances. Since Directive 2003/87 does not provide for other control mechanisms and does not make the surrender of allowances subject to any condition other than the emissions report being found to be satisfactory, the lump-sum penalty provided for in Article 16(3) of that directive must be imposed on operators who do not comply with that obligation, either because they do not surrender any allowances, or because the number of allowances surrendered is less than the emissions stated in the emissions report. Thus, although that directive does not preclude the competent authorities of the Member States from carrying out additional controls or verifications, it cannot be interpreted as requiring a penalty to be automatically imposed for breach of an obligation which it does not clearly specify. Finally, that interpretation is also necessary having regard to the principle of proportionality. The automatic application of the lump-sum penalty provided for in Article 16(3) of Directive 2003/87 is disproportionate since, subject to the qualification of acting in good faith, an operator cannot foresee the result of such additional monitoring with sufficient certainty. (see paras 28-30, 32, 34, 35, 37, 38, 41, 43, 45, operative part)