Opinion of the Advocate General — ECLI:EU:C:2011:741
Date: 2011-11-17
Language of the case: Polish
Subject matter: Environment;Pollution
Procedure: Action for annulment;Appeal - unfounded
Origin: Poland

Summary of the Judgment 1. Environment — Atmospheric pollution — Directive 2003/87 — National allocation plan for greenhouse gas emission allowances (NAP) — Division of powers between the Commission and the Member States — Powers of the Member States (Art. 226 EC; European Parliament and Council Directive 2003/87, Arts 9(1) and (3), 10 and 11(2), and Annex III) 2. Environment — Atmospheric pollution — Directive 2003/87 — National allocation plan for greenhouse gas emission allowances (NAP) — Division of powers between the Commission and the Member States — Powers of the Member States (European Parliament and Council Directive 2003/87, Art 9(1) and (3), 10 and 11(2), and Annex III) 3. Environment — Atmospheric pollution — Directive 2003/87 — Aim — Reduction of greenhouse gas emissions — Commission’s power of review (Art. 5 EC; European Parliament and Council Directive 2003/87, Recitals 2, 5 and 7, Arts 1, 9 and 11, and Annex III) 1. Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC determines clearly and explicitly, in Article 9(1) and (3) and in Article 11(2), the division of powers between the Commission and the Member States for the drawing up, review and implementation of the national allocation plans, for the purposes of putting that scheme into effect. With regard to the substantive limits of the power to review and reject such plans, the Commission is empowered only to verify the conformity of the measures taken by the Member State with the criteria set out in Annex III of that directive and the provisions of Article 10 thereof. While it is true that there may be great differences in the types of obligations imposed by directives on the Member States and therefore in the results the latter must achieve, and while it is established too that provisions of a directive that concern only the relations between the Member States and the Commission may not call for transposing measures, it cannot be denied that Articles 9 and 11 of Directive 2003/87 govern the respective roles of the Commission and the Member States in the context of the procedure for adoption of the national allocation plans, that is to say, the division of the power between them. Those provisions make it possible to determine whether the Member States enjoy any freedom of action when drawing up their plan and, as the case may be, the extent of that leeway. Likewise, it cannot be denied that Directive 2003/87 does not lay down a particular method for the drawing up of a national allocation plan or for the fixing of the total quantity of greenhouse gas emission allowances to be allocated. Indeed, on the contrary, Annex III, point 1, of that directive expressly provides that the Member States must lay down the total quantity of allowances to be allocated taking into account, inter alia, national energy policy and the national climate change programme. Thus, the Member States have a certain leeway in the transposing of Directive 2003/87 and, therefore, in choosing the measures they consider most appropriate to achieve, in the specific context of the national energy market, the objective laid down by that directive. With regard to the fact that, in accordance with Article 9 of Directive 2003/87, the national allocation plans are assessed by the Commission ex ante, such a power of review differs, clearly, in many respects from the review ex post review provided for under Article 226 EC. That fact cannot, however, mean that the review ex ante must go beyond a review of legality. (see paras 47, 49-52) 2. The necessity of observing the principle of equal treatment cannot alter the allocation of powers between the Commission and the Member States, as laid down in a European Union provision, such as 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/EC, which confers on the Commission a power only to verify the legality of national allocation plans, permitting it to reject a plan that is not in conformity with the criteria set out in Annex III to Directive 2003/87 or the provisions of Article 10 thereof. While that power of review necessarily concerns the data included in the national allocation plan at issue, any differences as regards the data and the evaluation methods applied by the Member States are an expression of their freedom of action, which the Commission must respect in the context of its review of conformity. In that context, the Commission may sufficiently ensure equal treatment between the Member States by examining the plan submitted by each of them with the same degree of diligence. It is also entitled to choose a common point of comparison for the plans drawn up by each of those States. To that end, the Commission may, inter alia, draw up its own method of assessing national allocation plans, based on the data it considers most appropriate and use it as a tool for comparison in order to verify whether the national allocation plans are compatible with the criteria contained in Annex III to Directive 2003/87. (see paras 63, 64, 66, 67) 3. The declared principal objective of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC is to reduce greenhouse gas emissions substantially in order to be able to fulfil the commitments of the European Union and its Member States under the Kyoto Protocol. That objective must be achieved in compliance with a series of sub-objectives and through recourse to certain instruments. The principal instrument for that purpose is constituted by the Community scheme for greenhouse gas emissions trading (Article 1 of Directive 2003/87 and recital 2 in its preamble). Article 1 states that that scheme promotes emissions reductions in a cost-effective and economically efficient manner. The other sub-objectives to be fulfilled by that scheme are, inter alia, as set out in recitals 5 and 7 in the preamble to the directive, the safeguarding of economic development and employment and the preservation of the integrity of the internal market and of conditions of competition. In that regard, even if that the approach favoured by the Commission, which is to fix a specific quantity of allowances, any exceeding of which is regarded as incompatible with the criteria established by Directive 2003/87, could possibly improve the functioning of the scheme for greenhouse gas emissions trading in the Union and thus make it possible to achieve more efficiently the objective of reducing greenhouse gas emissions substantially, that fact could not alter the division of powers between the Commission and the Member States as provided for in Articles 9 and 11 of Directive 2003/87. In an area of shared competences, such as that of environmental protection, it is for the Union legislature to determine the measures which it considers necessary to achieve the intended objectives, while observing the principles of subsidiarity and proportionality laid down in Article 5 EC. The Union legislature’s intention of conferring on the Commission only a power to review the conformity of the national allocation plans 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, is apparent both from Article 9(3) of Directive 2003/87 and the travaux préparatoires of that directive. Thus, to hold that the Commission may fix such a maximum quantity would go beyond the limits of teleological interpretation of that directive and be tantamount to conferring on that institution powers lacking any legal basis. However, the Commission does not exceed its powers by stating, in the operative part of a decision to reject a plan, without fixing in a binding manner the maximum quantity of allowances that could be allocated by a Member State, that it will not reject amendments to that plan provided that they are in conformity with the proposals and recommendations made in that rejection decision. Such a procedure would be consistent with the principle of sincere cooperation between the Member States and the Commission and would also meet the objectives of procedural economy. (see paras 77-80, 84)