Opinion of the Advocate General — ECLI:EU:C:2008:292
Date: 2008-05-21
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Pollution
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the Judgment 1. Community law – Principles – Equal treatment – Different treatment objectively justified – Criteria for assessment 2. Environment – Formulation of Community policy – Discretion of the Community legislature – Extent – Limits 3. Environment – Atmospheric pollution – Directive 2003/87 – Greenhouse gas emission allowance trading scheme – Scope (European Parliament and Council Directive 2003/87, as amended by Directive 2004/101) 1. A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment. Where a Community legislative act is concerned, it is for the Community legislature to demonstrate the existence of objective criteria put forward as justification and to provide the Court with the necessary information for it to verify that those criteria do exist. (see paras 47-48) 2. In the exercise of the powers conferred on it, the Community legislature has a broad discretion where its action involves political, economic and social choices and where it is called on to undertake complex assessments and evaluations. In addition, where it is called on to restructure or establish a complex system, it is entitled to have recourse to a step-by-step approach and to proceed in the light of the experience gained. When exercising its discretion in the field of the environment, the Community legislature must, in addition to the principal objective of protecting the environment, fully take into account all the interests involved. In examining the burdens associated with various possible measures, it must be considered that, even if the importance of the objectives pursued is such as to justify even substantial negative economic consequences for certain operators, the Community legislature’s exercise of its discretion must not produce results that are manifestly less appropriate than those that would be produced by other measures that were also suitable for those objectives. (see paras 57, 59) 3. Consideration 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, from the point of view of the principle of equal treatment has disclosed nothing to affect its validity in so far as it makes the greenhouse gas emission allowance trading scheme applicable to the steel sector without including the chemical and non-ferrous metal sectors in its scope. First, the allowance trading scheme introduced by Directive 2003/87 is a novel and complex scheme whose implementation and functioning could have been disturbed by the involvement of too great a number of participants, and, second, the original definition of the scope of Directive 2003/87 was dictated by the objective of attaining the critical mass of participants necessary for the scheme to be set up. In view of the novelty and complexity of the scheme, the original definition of the scope of Directive 2003/87 and the step-by-step approach taken, based in particular on the experience gained during the first stage of its implementation, in order not to disturb the establishment of the system were within the discretion enjoyed by the Community legislature. (see paras 60-61, 74, operative part)