Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 12 December 2024 (1)
Case C‑414/23
Metsä Fibre Oy,
intervening party:
Energiavirasto
(Request for a preliminary ruling from the Helsingin hallinto-oikeus (Administrative Court, Helsinki, Finland))
( Reference for a preliminary ruling – System for the exchange of greenhouse gas emission allowances – Union Registry – Regulation (EU) No 389/2013 – Recording of a restitution of allowances in the Union Registry – Restitution
under a provision subsequently invalidated by the Court of Justice – Impossibility of recovering allowances which have already been surrendered )
1.        In accordance with Directive 2003/87/EC, (2) undertakings operating certain installations are allocated greenhouse gas emission allowances. (3) Each of those undertakings must, each year, surrender for cancellation a number of those allocated allowances equal to the total emissions of gases released into the atmosphere, during the preceding calendar year, from sources located at its installation.
2.        Pursuant to
Directive 2003/87, and in order to supplement
that directive, the Commission adopted Regulation (EU) No 601/2012. (4) According to that regulation, the surrender obligation included the allowances relating to CO2 emissions from a lime combustion installation, even where the CO2 had been transferred to another installation for the production of precipitated calcium carbonate (PCC).
3.        In the period from 2013 to 2017, an undertaking with headquarters in Finland, (5) which was the operator of an installation to which allowances had been allocated, adhered to the scheme provided for in
Directive 2003/87 and supplemented by Regulation No 601/2012. In complying with that scheme, it included among the allowances that it surrendered each year for cancellation those relating to emissions from that installation.
4.        In 2017, the Court of Justice (6) ruled that ‘the second sentence of Article 49(1) of Regulation No 601/2012 and point 10(B) of Annex IV to that regulation are invalid in so far as they systematically include the CO2 transferred to another installation for the production of PCC
in the emissions of the lime combustion installation, regardless of whether or not that CO2 is released into the atmosphere.’
5.        The proceedings from which this request for a preliminary ruling arises concern, precisely, what consequences flow from that declaration of invalidity.
I.      Legal context
A.      European Union law
1.      Directive 2003/87
6.        Article 2 (‘Scope’) provides that that directive is to apply to emissions from the activities listed in Annex I and to greenhouse gases listed in Annex II.
7.        Article 12 (‘Transfer, surrender and cancellation of allowances’), paragraph 3, states:
‘Member States shall ensure that, by 30 April each year at the latest, the operator of each installation surrenders a number of allowances equal to the total emissions from that installation during the preceding calendar year as verified in accordance with Article 15, and that these are subsequently cancelled.’
8.        Article 19 (‘Registries’) provides:
‘1.      Allowances issued from 1 January 2012 onwards shall be held in the Community registry for the execution of processes pertaining to the maintenance of the holding accounts opened in the Member State and the allocation, surrender and cancellation of allowances under the Commission Regulation referred to in paragraph 3.
…
3.      In order to implement this Directive, the Commission shall adopt a Regulation … for a standardised and secured system of registries in the form of standardised electronic databases containing common data elements to track the issue, holding, transfer and cancellation of allowances, to provide for public access and confidentiality as appropriate and to ensure that there are no transfers which are incompatible with the obligations resulting from the Kyoto Protocol. …
…’
2.      Regulation (EU) No 389/2013 (7)
9.        Recital 8 reads:
‘As allowances and Kyoto units exist only in dematerialised form and are fungible, the title to an allowance or Kyoto unit should be established by their existence in the account of the Union Registry in which they are held. Moreover, to reduce the risks associated with the reversal of transactions entered in a registry, and the consequent disruption to the system and to the market that such reversal may cause, it is necessary to ensure that allowances and Kyoto units are fully fungible. In particular, transactions cannot be reversed, revoked or unwound, other than as defined by the rules of the registry, after a moment set out by those rules. Nothing in this Regulation should prevent an account holder or a third party from exercising any right or claim resulting from the underlying transaction that they may have in law to recovery or restitution in respect of a transaction that has entered a system, such as in case of fraud or technical error, as long as this does not lead to the reversal, revocation or unwinding of the transaction. Furthermore, the acquisition of an allowance or Kyoto unit in good faith should be protected.’
10.      Article 40 (‘Nature of allowances and finality of transactions’) provides:
‘1.      An allowance or Kyoto unit shall be a fungible, dematerialised instrument that is tradable on the market.
2.      The dematerialised nature of allowances and Kyoto units shall imply that the record of the Union Registry shall constitute prima facie and sufficient evidence of title over an allowance or Kyoto unit, and of any other matter which is by this Regulation directed or authorised to be recorded in the Union Registry.
3.      The fungibility of allowances and Kyoto units shall imply that any recovery or restitution obligations that may arise under national law in respect of an allowance or Kyoto unit shall only apply to the allowance or Kyoto unit in kind.
Subject to Article 70 and the reconciliation process provided for in Article 103, a transaction shall become final and irrevocable upon its finalisation pursuant to Article 104. Without prejudice to any provision of or remedy under national law that may result in a requirement or order to execute a new transaction in the Union Registry, no law, regulation, rule or practice on the setting aside of contracts or transactions shall lead to the unwinding in the registry of a transaction that has become final and irrevocable under this Regulation.
An account holder or a third party shall not be prevented from exercising any right or claim resulting from the underlying transaction that they may have in law, including to recovery, restitution or damages, in respect of a transaction that has become final in the Union Registry, for instance in case of fraud or technical error, as long as this does not lead to the reversal, revocation or unwinding of the transaction in the Union Registry.
4.      A purchaser and holder of an allowance or Kyoto unit acting in good faith shall acquire title to an allowance or Kyoto unit free of any defects in the title of the transferor.’
11.      Article 70 (‘Reversal of finalised processes initiated in error’) provides:
‘1.      If an account holder or a national administrator acting on behalf of the account holder unintentionally or erroneously initiated one of the transactions referred to in paragraph 2, the account holder may propose to the administrator of its account to carry out a reversal of the completed transaction in a written request. The request shall be duly signed by the authorised representative or representatives of the account holder that are authorised to initiate the type of transaction to be reversed and shall be posted within five working days of the finalisation of the process. The request shall contain a statement indicating that the transaction was initiated erroneously or unintentionally.
2.      Account holders may propose the reversal of the following transactions:
(a)      surrender of allowances;
(b)      deletion of allowances;
(c)      exchange of international credits.
3.      If the administrator of the account establishes that the request fulfils the conditions under paragraph 1 and agrees with the request, it may propose the reversal of the transaction in the Union Registry.
4.      If a national administrator unintentionally or erroneously initiated one of the transactions referred to in paragraph 5, it may propose to the central administrator to carry out a reversal of the completed transaction in a written request. The request shall contain a statement indicating that the transaction was initiated erroneously or unintentionally.
5.      National administrators may propose the reversal of the following transactions:
(a)      allocation of general allowances;
(b)      allocation of aviation allowances.
6.      The central administrator shall ensure that the Union Registry accepts the proposal for reversal made pursuant to paragraphs 1 and 4, blocks the units that are to be transferred by the reversal and forwards the proposal to the central administrator provided that all of the following conditions are met:
(a)      a transaction surrendering or deleting allowances to be reversed was not completed more than 30 working days prior to the account administrator's proposal in accordance with paragraph 3;
(b)      no operator would become non-compliant for a previous year as a result of the reversal;
(c)      the destination account of the transaction to be reversed still holds the amount of units of the type that were involved in the transaction to be reversed;
(d)      the allocation of general allowances to be reversed was carried out after the expiry date of the installation's permit.
7.      The central administrator shall ensure that the Union Registry completes the reversal with units of the same unit type on the destination account of the transaction that is being reversed.’
B.      National law. Law on emissions trading (8)
12.      In accordance with Paragraph 46(1) of the Law on emissions trading, the
emissions trading
authority is to act as the administrator responsible for the functioning
at national level of the registry provided for in Article 19 of Directive 2003/87, to ensure the accurate accounting of the annual recording, holding, transfer and cancellation of allowances. In accordance with subparagraph 3 of that paragraph, the provisions of Regulation No 389/2013 are to apply with regard to the establishment, maintenance and functions of that registry.
13.      Under Paragraph 48
of that law, the annual registry of allowances and the holding, transfer and cancellation of those allowances and the project units, as well as the right of the public to access the information contained in the registry and the confidentiality of that information is governed by Regulation No 389/2013.
II.    Facts, dispute and questions referred for a preliminary ruling
14.      In the period from 2013 to 2017, Metsä Fibre surrendered for cancellation allowances which had been allocated to it in respect of the Äänekoski installation.
15.      On 26 April 2022, Energiavirasto (Energy Agency, Finland; ‘the Agency’) corrected the total amounts of CO2 emissions for the Äänekoski installation for the years 2013 to 2017.
16.      That re-evaluation occurred because the Agency took the view that, as a result of the judgment in Schaefer Kalk, the annual emissions stated for the Äänekoski installation for that period were higher than they should have been and, therefore, did not comply with Regulation No 601/2012. It therefore corrected them downwards, such that the compliance account of the Äänekoski installation yielded a positive result. (9)
17.      The Agency, however, concluded that it was not appropriate to return to the installation’s account a quantity equal to the excess allowances surrendered by Metsä Fibre. It argued that it was prevented by the rules on time limits laid down in Article 70 of Regulation No 389/2013 and in Decisions No 280/2004/EC (10) and No 406/2009/EC (11) for the reversal of a registry transaction carried out erroneously.
18.      In the opinion of the Agency, Regulation No 389/2013 does not regulate the hypothetical situation in which allowances are surrendered on the basis of provisions later declared invalid. Nor does it provide for the possibility of transferring the positive compliance status of the compliance account of an installation to that of another installation of Metsä Fibre.
19.      Metsä Fibre brought an action for the annulment of the Agency’s decision before the Helsingin hallinto-oikeus (Administrative Court, Helsinki, Finland). In that action, Metsä Fibre:
–        challenges the limitation of the correction of the installation’s emissions for the period from 2013 to 2017 to the balance indicating the compliance status of that installation in the Union Registry, where
the Agency did not transfer
back to the account of that installation the quantity of allowances equivalent to the correction;
–        seeks the annulment of the Agency’s decision, so that ‘the allowances surrendered in error can be restored to the account of the Äänekoski installation and [Metsä Fibre] can dispose of them freely’. (12)
20.      In that context, the abovementioned court refers the following questions, suggested by Metsä Fibre and by the Agency, to the Court of Justice for a preliminary ruling:
‘(1)      Are the provisions of Articles 70 and 40 of Regulation [No 389/2013] regarding the timeframes for reversal of transactions and the final and irrevocable nature of transactions invalid, when the right to property under Article 17 of the Charter of Fundamental Rights of the European Union and the other rights protected in [that
Charter] are taken into account, in as much as the provisions at issue prevent the retransfer of the allowances to Metsä Fibre Oy in a situation where the surrender of excessive allowances to the Union Registry was based on the application of the provisions which were found in the Schaefer Kalk judgment to be invalid, and the company cannot use the positive compliance status of the compliance account because of the current low level of emissions from the Äänekoski installation?
(2)      If Question 1 is answered in the negative, are the provisions of Articles 70 and 40 of Regulation [No 389/2013] at all applicable in a situation where the surrender of excessive allowances to the Union Registry [is]
based on [the]
application of the provisions which were found in the Schaefer Kalk judgment to be invalid and not on a transaction unintentionally or erroneously initiated by an account holder or a national administrator acting on behalf of the account holder?
(3)      If Question 1 is
answered in the negative and Question 2 in the affirmative, is there any other way made possible by EU law to put Metsä Fibre in the position, with respect to use of the allowances, in which it would have been if the provisions which were found in the Schaefer Kalk judgment to be invalid had not existed and the company had not surrendered excessive allowances on the basis of them?’
III. Procedure before the Court of Justice
21.      The request for a preliminary ruling was received at the Court on 6 July 2023.
22.      Written observations were submitted by Metsä Fibre, the Agency, the Finnish Government and the European Commission. They all participated in the hearing held on 17 October 2024.
IV.    Analysis
A.      Preliminary observations
23.      The key factor from which this dispute arises was the declaration, by the judgment in Schaefer Kalk, that various provisions of Regulation No 601/2012, which, years earlier, had been applied to Metsä Fibre as the operator of the Äänekoski installation, were invalid.
24.      As has already been emphasised, in the period from 2013 to 2017, Metsä Fibre surrendered for cancellation a greater amount of allowances than was due, with the amount ‘due’ being those resulting from the invalidity declared in the judgment in Schaefer Kalk.
25.      Having established that fact (which was not attributable to the undertaking, which had merely complied with the terms of Regulation No 601/2012 prior to its partial annulment), the Agency, in 2022, corrected downwards the figures relating to the CO2 emissions of the Äänekoski installation. According to the new calculation, Metsä Fibre, the operator of that installation, surrendered an excessive number of allowances to the Union Registry for cancellation.
26.      However, the Agency considered it unfeasible to recover for Metsä Fibre the excess allowances that it had surrendered. It argued that the time limits established in Regulation No 389/2013 for reversing an improperly registered transaction had expired.
27.      According to the Agency, there were, in principle, only two ways in which Metsä Fibre could recover the excess allowances it had surrendered: either the (original) transaction surrendering the allowances could be reversed, or the excess allowances could be used in the future.
28.      The Agency, however, takes the view that neither of those options is possible.
–        The first solution would be prohibited by Article 70 of Regulation No 389/2013, which only provides for the possibility of reversing, within five working days, transactions carried out erroneously or unintentionally. In accordance with Article 40 of that regulation, transactions are final and irrevocable. (13)
–        The second option could not be realised
in practice, given that the Äänekoski installation, at the current level of its annual emissions, would need between six and seven thousand years to use the excess allowances. (14) Moreover, Regulation No 389/2013 does not provide for the status of excess allowances to be transferred from one installation to the account of another. (15)
29.      Against that background, the referring court wishes to know, in short: (a) whether Articles 40 and 70 of Regulation No 389/2013 are invalid; (b) if they are valid, whether those articles govern the situation presented in the dispute; and (c) whether there is some other way under
EU law of restoring Metsä Fibre to the ‘position … in which it would have been if the provisions which were found in the Schaefer Kalk judgment to be invalid had not existed and the company had not surrendered excessive allowances on the basis of them’.
B.      First and second questions referred
30.      The first and second questions referred may, in my opinion, be answered together. In both, doubt is expressed regarding the validity of the rules on time limits laid down in Regulation No 389/2013 and regarding their application to the dispute.
31.      Practically all of the parties agree that Regulation No 389/2013 does not allow the excess allowances which Metsä Fibre surrendered in the years 2013 to 2017 and which were consequently cancelled at that time to be returned to it in the account of the Äänekoski installation. (16)
32.      According to the referring court, that impossibility prevents effect being given to the judgment in Schaefer Kalk. That fact could result in a reason for invalidating
the provisions of Regulation No 389/2013 relating to time limits, in so far as they do not allow the effects caused by the provisions which that judgment annulled to be remedied.
33.      The Finnish Government has proposed an alternative solution. In its submission, Article 40 of Regulation No 389/2013 should not constitute an obstacle to accommodating Metsä Fibre’s request, (17) that is, to accepting the restitution of the allowances to the assets of the undertaking, via the account of its installation. That way, the objective of the system for the exchange of allowances (motivating operators to reduce their emissions) would be achieved.
34.      However, I believe that such an alternative is not feasible. Articles 40 and 70 of Regulation No 389/2013 imply the irrevocability of transactions which have not been reversed on certain grounds and within certain time limits. Those grounds do not include the circumstances pertaining here (the application of legislative provisions that were annulled after having been applied).
35.      In reality, Articles 40 and 70 of Regulation No 389/2013 preclude the return of the allowances at issue, where that means the reversal of the original surrender (the surrender which gave rise to the cancellation of those allowances) and its replacement with a new electronic entry (18) in an account held in the Union Registry.
36.      The Court of Justice has reiterated that ‘the overall scheme of [Directive 2003/87] is … based on the strict accounting of the issue, holding, transfer and cancellation of allowances, the framework for which is provided for by Article 19 thereof and requires the establishment of a system of standardised registries through a separate Commission regulation.’ (19)
37.      In the interests of that ‘strict accounting’, and in order to reduce the risks associated with the reversal of registered transactions and the consequent disruption to the system and the market, Regulation No 389/2013 introduced a very rigorous system of invalidation. Under that system, the irrevocability of the transactions is guaranteed (Article 40), with the exception that they may be reversed, within a time limit of five days, if they were initiated erroneously or unintentionally (Article 70).
38.      As the Commission has underlined, the precise limits set by Articles 40 and 70 of Regulation No 389/2013 are essential in order to know the number of allowances available in the system and for it to be able to comply with its obligations under Directive 2003/87, and to ensure the accuracy of the European Union’s declarations in the context of the Kyoto Protocol. (20)
39.      I do not believe that that strict set of rules, which includes the irrevocability of transactions once a short period following their entry in the Union Registry has elapsed, contains any flaw which would result in its invalidity.
40.      In my opinion, the question should not be posed in the terms suggested by the Commission, namely, that a situation as unusual and almost unrepeatable as the one
at issue here is not a sufficient basis on which to declare the provisions applied to be invalid. For the Commission, that exceptional situation
cannot be turned into an argument for declaring the invalidity of Articles 40 and 70 of Regulation No 389/2013.
41.      Certainly, I agree with the Commission that the erga omnes annulment of those provisions could have a negative impact on the functioning of the market and, in particular, on declarations relating to the second period of the Kyoto Protocol (2013 to 2020), in which regard the deadline for the European Union’s declarations was 24 October 2023. (21)
42.      However, consideration should be given to whether Articles 40 and 70 of Regulation No 389/2013 could also, in themselves, be contrary to the right to property referred to by the referring court when it cites Article 17 of the Charter, by preventing the effects caused by the provisions annulled by the judgment in Schaefer Kalk from being remedied.
43.      Such an approach would, for dialectical purposes, require accepting the existence of true property rights (22) over the allowances, which are allocated free of charge, in so far as they are negotiable financial assets. Starting from that premiss, a solution other than the return of those allowances (as electronic entries) to the account of the installation would comply with Article 17 of the Charter if the account holder received adequate compensation to remedy the damage suffered. I will address that later.
44.      In my opinion, Articles 40 and 70 of Regulation No 389/2013 do not prevent the legal effects inherent in the annulment declared by the judgment in Schaefer Kalk from being produced.
45.      It is reasonable to suppose that, beyond the particular case which concerns us here, the application of the judgment in Schaefer Kalk has involved, where possible, reviewing the emissions that were calculated, at the relevant time, in accordance with the provisions that were later annulled. If that is the case, Regulation No 389/2013 would not have prevented the remediation of the unfavourable effects for those who surrendered those emissions in compliance with the provisions that would later be
annulled.
46.      It is also reasonable to suppose that the remediation would not have taken place by means of the reversal of the surrender transactions relating to the allowances calculated in accordance with the annulled provisions. (23) Rather, measures of a different kind would have been taken, such as the allocation of the excess to the accounts of the relevant installations for their future use. (24)
47.      In my view, that means of redress is not incompatible with the nature and functioning of the EU
emissions trading scheme set up by Directive 2003/87, the Kyoto Protocol and Decision No 406/2009. One of the fundamental components of that scheme is, as I have already set out, the registration mechanism which ensures the accurate accounting of transactions.
48.      Regulation No 389/2013 should not, then, in general terms, be an obstacle to the proper implementation of the judgment in Schaefer Kalk. A solution is possible which is materially equivalent to that involving the return, to the installation, of the excess allowances surrendered.
49.      Where feasible, the return of those allowances to the accounts of the installations concerned, for future use, will mean that the operators of those installations do not suffer any detriment in the emission allowance exchange market.
50.      What happens when, due to the particular circumstances of an installation, (25) the
return of those allowances is unfeasible remains to be clarified. That, in short, is the true problem in the dispute. As I have already set out, I consider there to be means available to the undertaking concerned to allow it to receive adequate compensation to remedy the damage suffered.
51.      To sum up, I am unable to find any reasons to support the invalidity of Articles 40 and 70 of Regulation No 389/2013, and those provisions must, therefore, apply to the dispute.
C.      Third question referred
52.      In view of the content of the answers to the first two questions referred
consideration must, according to the referring court, be given to whether there is ‘any other way’ to allow Metsä Fibre to receive satisfaction.
53.      The cancellation request (by the Agency) in respect
of the emissions declared by Metsä Fibre for the period from 2013 to 2017 was received at
the Commission on 12 February 2021. Therefore, more than four years had elapsed since the publication of the judgment in Schaefer Kalk. (26)
54.      In
those circumstances, I have already stated
the following:
–        the correction of the Registry, with retroactive effect, was unfeasible, as it could have a negative impact on the functioning of a market based on the rigour of its accounting;
–        nor was the materially equivalent solution, referred to above, feasible in view of the particular situation of
the Äänekoski installation, (27) which made it an exceptional case.
55.      However, the analysis of Articles 40 and 70 of Regulation No 389/2013 must respect the consequences of the judgment in Schaefer Kalk, which is general in its scope and, therefore, in principle, also includes ‘isolated cases’.
56.      In the ‘isolated case’ which concerns us here, reliance on that judgment is, I repeat, linked to the (alleged) injury to the right to property suffered by a person who acted in good faith, trusting the validity of the provisions that were later annulled by the Court of Justice. (28)
57.      Practically all of the parties agree that the grounds for reversal provided for in Article 70 of Regulation No 389/2013 are limited to the unintentional or erroneous initiation of transactions, and those grounds have to be asserted within certain time limits and cannot be relied on sine die.
58.      However, the Agency has highlighted
the possibilities afforded by the third subparagraph of Article 40(3) of Regulation No 389/2013. According to that provision:
–        account holders
are
not to be prevented from exercising ‘any right or claim resulting from the underlying transaction that they may have in law, including to recovery, restitution or damages, in respect of a transaction that has become final in the Union Registry, for instance in case of fraud or technical error …’.
–        it is an inescapable condition that the exercise of such a right or claim should ‘not lead to the reversal, revocation or unwinding of the transaction in the Union Registry’.
59.      In my opinion, the exceptional situation of the Äänekoski installation may find in that provision a remedy that
allows both the interests of its operator to be satisfied and the correct functioning of the Union Registry to be maintained.
60.      As far as the Union Registry is concerned, it ensures that the transaction at issue will not have to be reversed, revoked or unwound, thereby excluding any disruption to the functioning of the market.
61.      With regard to the holder of the account in question, it is able to exercise its right to redress for the damage caused by a transaction which, ex post, has proved to be excessive, but which, being final and irrevocable, can no longer be reversed.
62.      The third subparagraph of Article 40(3) of Regulation No 389/2013 is sufficiently broad in scope to accommodate the solution advocated by the Agency. Fraud or technical error are mentioned in the provision by way of examples
‑ and not as an exhaustive list
‑ of the grounds that
may justify the exercise of ‘any right or claim’, which includes the right to obtain ‘damages’.
63.      Consistent with the Agency’s observations, the third subparagraph of Article 40(3) of Regulation No 389/2013 is not limited to remedies available under national law (the only remedies to which the first and second subparagraphs of paragraph 3 of the same article refer), but rather it alludes, in a general manner, to the legal rights and claims which the account holder or a third party may have. (29)
64.      Considered as a whole, then, the provisions of Regulation No 389/2013 allow the effects caused by the application of the provisions annulled by the Court of Justice in the judgment in Schaefer Kalk to be remedied
‑ in some cases, by means of the use, in future years, of the excess allowances surrendered and in others, such as that of the installation concerned here, by redress for the financial losses suffered.
65.      Lastly, the provisions of Regulation No 389/2013 do not, in a case such as the present one, require rights and financial interests involved in the area of the emission allowance market to be sacrificed without any avenue of appeal.
66.      In particular, if this solution were adopted, there would be no detriment to Metsä Fibre’s (potential) right of ownership of the allowances allocated to it and which it surrendered in excess. Nor would it receive discriminatory treatment in comparison with the operators of other installations. Moreover, the solution proposed does not interfere with the integrity and proper functioning of the market.
V.      Conclusion
67.      In the light of the foregoing, I propose that the Court of Justice should reply to the Helsingin hallinto-oikeus (Administrative Court, Helsinki, Finland) as follows:
‘(1)      The examination of the questions referred has not revealed any factor
capable of affecting the validity of Articles 40 and 70 of Commission Regulation (EU) No 389/2013 of 2 May 2013 establishing a Union Registry pursuant to Directive 2003/87/EC of the European Parliament and of the Council, Decisions No 280/2004/EC and No 406/2009/EC of the European Parliament and of the Council and repealing Commission Regulations (EU) No 920/2010 and No 1193/2011.
Articles 40 and 70 of Regulation No 389/2013 do not make it impossible to remedy the effects of the application of the provisions declared to be invalid by the Court of Justice in the judgment of 19 January 2017, Schaefer Kalk (C‑460/15, EU:C:2017:29).
(2)      In a situation in which the actual restitution of the excess greenhouse gas emission allowances surrendered is not feasible, the operator of the relevant installation may exercise the rights or claims referred to in the third subparagraph of Article 40(3) of Regulation No 389/2013, including the right to obtain redress for the damage caused.’
1      Original language: Spanish.
2      Directive of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32), as amended by Directive
2009/29/EC of the European Parliament and of the Council of 23 April 2009 (OJ 2009 L 140, p. 63).
3      The term ‘allowance’ refers to an allowance to emit one tonne of carbon dioxide (CO2) equivalent during a specified period.
4      Commission Regulation of 21 June 2012 on the monitoring and reporting of greenhouse gas emissions pursuant to Directive 2003/87/EC of the European Parliament and of the Council (OJ 2012 L 181, p. 30).
5      The name of the undertaking is Metsä Fibre Oy and the name of its installation is Metsä Fibre Äänekoski (‘the Äänekoski installation’).
6      Judgment of 19 January 2017, Schaefer Kalk (C‑460/15, EU:C:2017:29; ‘the judgment in Schaefer Kalk’).
7      Commission Regulation (EU) No 389/2013 of 2 May 2013 establishing a Union Registry pursuant to Directive 2003/87/EC of the European Parliament and of the Council, Decisions No 280/2004/EC and No 406/2009/EC of the European Parliament and of the Council and repealing Commission Regulations (EU) No 920/2010 and No 1193/2011 (OJ 2013 L 122, p. 1).
8      Päästökauppalaki No 311 of 8 April 2011 (Law on emissions trading).
9      According to the Agency, the number of excess allowances surrendered to the Union Registry by Metsä Fibre totalled 115 312.
10      Decision of the European Parliament and of the Council of 11 February 2004 concerning a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto Protocol (OJ 2004 L 49, p. 1).
11      Decision of the European Parliament and of the Council of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community's greenhouse gas emission reduction commitments up to 2020 (OJ 2009 L 140, p. 136).
12      Paragraph 7 of the order for reference. In its written observations (paragraph 8), Metsä Fibre states that the ability to dispose of those allowances freely would allow it ‘to sell them as surplus in accordance with the emission allowance trading system and its logic’. It adds that it is denied that possibility because ‘the allowances agreed in the context of the correction [made by the Agency] in effect do not exist, since they have not been recorded in the central [Union] Registry’.
13      According to the paragraph 20 of the order for reference, the Agency was in contact with the Commission, which was of the opinion that the conditions for reversing the surrender of the allowances were not satisfied, because the time limits specified in Article 70 of Regulation No 389/2013 had been exceeded. The unfeasibility of that solution would then have been confirmed by the Commission itself, which the Agency contacted on various occasions for its opinion on the interpretation of the applicable rules.
14      In addition to that, in accordance with point 1 of Annex I to Directive 2003/87, as amended by Directive (EU) 2023/959 of the European Parliament and of the Council of 10 May 2023 (OJ 2023 L 130, p. 134), the Äänekoski installation will not fall within the scope of the system for the exchange of allowances from 1 January 2026.
15      In accordance with Article 16(2) of Regulation No 389/2013, holding accounts relate to each particular installation. The excess allowances surrendered from the account of the Äänekoski installation could, theoretically, be returned to the same account, but not to the account of another installation operated by Metsä Fibre.
16      During the hearing, it was made known that the Commission has initiated a legislative procedure to make it possible, in future, to remedy situations such as that experienced by Metsä Fibre. That solution, if it ultimately comes to fruition, would not be applicable to this dispute, unless it was expressly retroactive in nature.
17      Paragraph 20 of the Finnish Government’s written observations.
18      Allowances, which are fungible in nature, only exist in dematerialised form, as accounting entries.
19      Judgment of 17 October 2013, Billerud Karlsborg and Billerud Skärblacka (C‑203/12, EU:C:2013:664) paragraph 27). For my part, in point 65 of the Opinion in ArcelorMittal (C‑321/15, EU:C:2016:516), I argued that ‘concern about the accuracy of the quantity and circumstances of emissions allowances reflects the EU’s ambition of improving the way the market operates by preventing distortions which are caused by any uncertainty as to whether allowances are valid and in force, in view of their role as a unit of exchange on that market’.
20      Paragraphs 29 and 30 of the Commission’s written observations.
21      Paragraph 33 of the Commission’s written observations.
22      I refer to points 2, 5, 80, 85 and 94 to 98 of my Opinion in ArcelorMittal (C‑321/15, EU:C:2016:516). In those points, I examined whether, from the perspective of EU law, emission allowances could be regarded as assets or, rather, as administrative authorisations. In footnote 11 to that Opinion, I remarked that the heterogeneous nature of national approaches with regard to the legal nature of emission allowances is reflected in the variety of names which the different language versions of Directive 2003/87 use to refer to such allowances. For example, while the Spanish and Dutch versions use the terms ‘derechos de emisión’ and ‘emissierecht’, respectively, the Italian and French versions refer to ‘quota di emissioni’ and ‘quota’, the English version prefers the term ‘allowance’ and the German version the term ‘Zertifikat’ while, lastly, the Portuguese version opts for ‘licença de emissão’. In that case, the referring court was asking about the legal classification of emission allowances as property, potentially capable of compulsory expropriation.
23      When asked about that during the hearing, the Commission stated that it was not aware of cases of the reversal of transactions following the judgment in Schaefer Kalk.
24      According to the Commission (written observations, footnote 12), in Finland, the annulment of the provisions declared invalid by the judgment in Schaefer Kalk has led to the restitution of allowances to seven installations. The Commission adds that ‘the Agency … has corrected the emission levels of six installations; for five of those installations, the emission levels are entirely recoverable within the framework of the surrender of the installation’s emission allowances, while, for one installation, approximately one fifth of the emission levels that have been corrected has yet to be recovered.’ Metsä Fibre also refers to those installations to highlight the disparity in the treatment received.
25      See point 28 and footnotes 13 to 15 of this Opinion. The referring court, in formulating the first question referred, emphasises the fact that Metsä Fibre ‘cannot use the positive compliance status of the compliance account because of the current low level of emissions from the Äänekoski installation’.
26      Paragraph 25 of the Commission’s written observations.
27      See point 48 of this Opinion.
28      Metsä Fibre also argues that there has been a breach of the principle of equality (in comparison with the operators of installations to whom allowances that were previously
surrendered unduly have been returned) and a failure to take into consideration the objectives of the legislation relating to the exchange of allowances.
29      Paragraph 33 of the Agency’s written observations.