Opinion of the Advocate General — ECLI:EU:C:2016:516
Date: 2016-07-05
Language of the case: French
Subject matter: Environment;Pollution
Procedure: Reference for a preliminary ruling
Origin: Luxembourg

summary of the controversy may be found in Schrödinger’s emissions trading system. Europe’s carbon-trading system is better than thought, and could be better still, available at http://www.economist.com/node/21683960. 19 COM(2000) 87 final, paragraph 3 in fine. 20 The relevant legislation consisted at that time of Council Regulation (EEC) No 594/91 of 4 March 1991 on substances that deplete the ozone layer (OJ 1991 L 67, p. 1), as amended by Council Regulation (EEC) No 3952/92 of 30 December 1992 (OJ 1992 L 405, p. 41) and by Council Regulation (EC) No 3093/94 of 15 December 1994 on substances that deplete the ozone layer (OJ 1994 L 333, p. 1). 21 The basic legislative framework at the time was contained in Council Regulation (EEC) No 3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture (OJ 1992 L 389, p. 1). 22 The main legislative components at that time were Council Regulation (EEC) No 856/84 of 31 March 1984 amending Regulation (EEC) No 804/68 on the common organisation of the market in milk and milk products (OJ 1984 L 90, p. 10), Council Regulation (EEC) No 3950/92 of 28 December 1992 establishing an additional levy in the milk and milk products sector (OJ 1992 L 405, p. 1), and Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products (OJ 1993 L 57, p. 12). 23 Basically limited to the US Clean Air Act of 1990 and the Californian Regional Clean Act Incentives Market of 1994. 24 The expression is used by Pohlmann, M., ‘The European Union Emissions Trading Scheme’, in Freestone, D., and Streck, C., Legal Aspects of Carbon Trading, op. cit., p. 339. 25 By 31 March 2004 at the latest for plans relating to the period 2005 to 2007, and at least 18 months before the beginning of the 2008 to 2012 and subsequent periods. 26 Emphasis added. 27 See, in general, on the registry system, Molina Hernández, C., ‘El registro de derechos de emisión de los gases de efecto invernadero de la Unión Europea’, in Revista de Derecho Comunitario Europeo, No 56, 2016, pp. 157 to 197. 28 The Law of 2004 accordingly complied with Article 11(2) of Directive 2003/87. 29 According to Article 2(v) of the Regulation, ‘transaction’ means ‘the issue, transfer, acquisition, surrender, cancellation and replacement of allowances and the issue, transfer, acquisition, cancellation and retirement of ERUs, CERs, AAUs and RMUs and carry-over of ERUs, CERs and AAUs’. 30 Section 2, point 2.2 of the Communication from the Commission to the Council and to the European Parliament on the assessment of [NAPs] for the allocation of greenhouse gas emission allowances in the second period of the EU Emissions Trading Scheme (COM(2006) 725 final) explains that ‘such ex post adjustments contradict the essential concept of a “cap-and-trade” system as conceived by the Directive’ and that ‘there is no administrative need or any other justification’ for these, while ‘Member States are required to use the best data available when deciding on allocations up-front’. 31 That communication includes as one of the situations in which ex post adjustment is nonetheless allowed the closure of an installation during the current year, in which case ‘there is no longer an operator to whom allowances will be issued’ (loc. cit.). 32 Paragraph 49 of its written observations. 33 In that connection, see, inter alia, judgment of 26 June 2007 in Ordre des barreux francophones et germanophone and Others (C‑305/05, EU:C:2007:383, paragraph 18). 34 For example, judgment of 21 December 2011 in Cicala (C‑482/10, EU:C:2011:868, paragraphs 16 to 19). 35 On this subject, see La régulation des marchés du CO2, Rapport de la mission confiée à Michel Prada, 2010, pp. 60 to 61, which may be accessed at http://www.ladocumentationfrancaise.fr/rapports-publics/104000201/.