Opinion of the Advocate General — ECLI:EU:C:2017:192
Date: 2017-03-09
Language of the case: French
Subject matter: Environment;Pollution
Procedure: Reference for a preliminary ruling
Origin: France

Summary — Judgment of the Court (First Chamber), 26 July 2017 1. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Transitional regime for free allocation of quotas — Benchmarks to apply for the calculation of the allowance — Commission decision determining the benchmarks for hot metal — Use of data from reference documents on the best techniques available established in accordance with Directive 2008/1 for determining those benchmarks — Lawfulness (European Parliament and Council Directive 2003/87, Art. 10a(2); Commission Decision 2011/278) 2. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Transitional regime for free allocation of quotas — Benchmarks to apply for the calculation of the allowance — Commission decision determining the benchmarks for hot metal — Application of the same benchmark to substitute products — Determination of the benchmark for sintered ore taking into account an installation producing both sintered ore and pellets — Lawfulness (European Parliament and Council Directive 2003/87, Art. 10a(2); Commission Decision 2011/278, Recitals 2 and 4) 3. Acts of the institutions — Statement of reasons — Obligation — Scope (Art. 296 TFEU) 1. It should be noted that the Commission has broad discretion in determining the benchmarks in individual sectors or subsectors under Article 10a(2) of Directive 2003/87. That exercise entails, on the institution’s part, choices and complex technical and economic assessments as well. The legality of a measure adopted in that area can be affected only if the measure is manifestly inappropriate (judgments of 8 September 2016, Borealis and Others, C‑180/15, EU:C:2016:647, paragraph 45, and of 26 October 2016, Yara Suomi and Others, C‑506/14, EU:C:2016:799, paragraph 37). It is clear from recital 11 of Decision 2011/278 that, when no data were available or the data collected did not comply with the benchmarking methodology, information on present levels of emissions and consumptions and on most efficient techniques, mainly derived from the BREFs, was used to derive benchmark values. In particular, due to a lack of data on the treatment of waste gases, heat exports and electricity production, the values for the product benchmarks for coke and hot metal were derived from calculations of direct and indirect emissions based on information on relevant energy flows provided by the relevant BREF and default emission factors set out in the LDSD 2007 (judgments of 8 September 2016, Borealis and Others, C‑180/15, EU:C:2016:647, paragraph 47, and of 26 October 2016, Yara Suomi and Others, C‑506/14, EU:C:2016:799, paragraph 39). Furthermore, in respect of waste gases generated during the production of hot metal, according to recital 32 of Decision 2011/278 the product benchmarks take account of the efficient energy recovery of waste gases and emissions related to use of those gases. To that end, for the determination of the benchmark values for products of which the production generates waste gases, the carbon content of those waste gases has been taken into account to a large extent (judgments of 8 September 2016, Borealis and Others, C‑180/15, EU:C:2016:647, paragraph 48, and of 26 October 2016, Yara Suomi and Others, C‑506/14, EU:C:2016:799, paragraph 40). In such circumstances, it does not appear that, by basing its determination of the benchmark for hot metal in Decision 2011/278 on the data in the iron and steel BREF and the LDSD 2007, the Commission infringed the obligation to use the most exact and up-to-date scientific data available and the principle of sound administration. (see paras 31-34) 2. See the text of the decision. (see paras 37-49) 3. See the text of the decision. (see paras 52, 53)