62009CC0504
OPINION OF ADVOCATE GENERAL
TRSTENJAK
delivered on 17 November 2011 (
1
)
Case C-504/09 P
European Commission,
United Kingdom of Great Britain and Northern Ireland
v
Republic of Poland
‛Appeals — Environment — Atmospheric pollution — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — National emission allowance allocation plan submitted by the Republic of Poland for the period 2008 to 2012 — Powers of the Member States and of the Commission — Article 9(1) and (3) and Article 11(2) of Directive 2003/87’
I – Introduction
1.
The present appeals concern the system established by Directive 2003/87/EC 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 2004/101/EC of the European Parliament and of the Council of 27 October 2004 (OJ 2004 L 338, p. 18), (‘the Directive’).
2.
By their appeals, the European Commission and the United Kingdom of Great Britain and Northern Ireland request the Court to set aside in its entirety the judgment of the Court of First Instance of the European Communities (now ‘the General Court’) in Case T-183/07 Poland v Commission [2009] ECR II-3395 (‘the judgment under appeal’) annulling Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for greenhouse gas emission allowances (‘NAP’) notified by the Republic of Poland for the period 2008 to 2012 in accordance with Directive 2003/87 (‘the contested decision’).
II – Legal framework
3.
Article 9 of the Directive provides:
‘1.   For each period referred to in Article 11(1) and (2) [of the Directive], each Member State shall develop a national plan stating the total quantity of allowances that it intends to allocate for that period and how it proposes to allocate them. The plan shall be based on objective and transparent criteria, including those listed in Annex III [to the Directive], taking due account of comments from the public. The Commission shall, without prejudice to the Treaty, by 31 December 2003 at the latest develop guidance on the implementation of the criteria listed in Annex III [to the Directive].
For the period referred to in Article 11(1), the plan shall be published and notified to the Commission and to the other Member States by 31 March 2004 at the latest. For subsequent periods, the plan shall be published and notified to the Commission and to the other Member States at least 18 months before the beginning of the relevant period.
2.   National allocation plans shall be considered within the committee referred to in Article 23(1) [of the Directive].
3.   Within three months of notification of a national allocation plan by a Member State under paragraph 1, the Commission may reject that plan, or any aspect thereof, on the basis that it is incompatible with the criteria listed in Annex III or with Article 10 [of the Directive]. The Member State shall only take a decision under Article 11(1) or (2) if the proposed amendments are accepted by the Commission. Reasons shall be given for any rejection decision by the Commission.’
4.
According to Article 11(2) of the Directive:
‘For the five-year period beginning 1 January 2008, and for each subsequent five-year period, each Member State shall decide upon the total quantity of allowances it will allocate for that period and initiate the process for the allocation of those allowances to the operator of each installation. This decision shall be taken at least 12 months before the beginning of the relevant period and be based on the Member State’s national allocation plan developed pursuant to Article 9 and in accordance with Article 10, taking due account of comments from the public.’
5.
Annex III to the Directive sets out 12 criteria for NAPs. Criteria Nos 1 to 3 and 12 of Annex III provide respectively as follows:
‘1.
The total quantity of allowances to be allocated for the relevant period shall be consistent with the Member State’s obligation to limit its emissions pursuant to Decision 2002/358/EC and the Kyoto Protocol, taking into account, on the one hand, the proportion of overall emissions that these allowances represent in comparison with emissions from sources not covered by this Directive and, on the other hand, national energy policies, and should be consistent with the national climate change programme. The total quantity of allowances to be allocated shall not be more than is likely to be needed for the strict application of the criteria of this Annex. Prior to 2008, the quantity shall be consistent with a path towards achieving or over-achieving each Member State’s target under Decision 2002/358/EC and the Kyoto Protocol.
2.
The total quantity of allowances to be allocated shall be consistent with assessments of actual and projected progress towards fulfilling the Member States’ contributions to the Community’s commitments made pursuant to Decision 93/389/EEC.
3.
Quantities of allowances to be allocated shall be consistent with the potential, including the technological potential, of activities covered by this scheme to reduce emissions. Member States may base their distribution of allowances on average emissions of greenhouse gases by product in each activity and achievable progress in each activity.
…
12.
The plan shall specify the maximum amount of [certified emission reductions] and [emission reduction units] which may be used by operators in the Community scheme as a percentage of the allocation of the allowances to each installation. The percentage shall be consistent with the Member State’s supplementarity obligations under the Kyoto Protocol and decisions adopted pursuant to the UNFCCC or the Kyoto Protocol.’
6.
For other provisions relevant to this case, reference should be made to the description of the legal framework in the judgment under appeal.
III – Background to the dispute and the contested decision
7.
The facts which preceded the adoption of the contested decision and the operative part of that decision are set out in paragraphs 9 to 15 of the judgment under appeal.
IV – Procedure before the General Court and the judgment under appeal
8.
The Republic of Poland brought an action before the General Court against the contested decision. The proceedings before the General Court are set out in paragraphs 16 to 24 of the judgment under appeal.
9.
By the judgment under appeal, the General Court annulled the contested decision in its entirety.
10.
First of all, in paragraphs 70 to 134 of the judgment under appeal, the General Court found that the Commission had exceeded its powers of review under Article 9(3) of the Directive. In the first place, it criticised the fact that the Commission had not confined itself to reviewing the compatibility of the Republic of Poland’s NAP but had replaced the data used by the Republic of Poland with its own data obtained by its own method of assessment. In the second place, it criticised it for having itself set the upper limit for the total quantity of allowances to be allocated in the contested decision.
11.
Next, the General Court held, in paragraphs 135 to 154 of the judgment under appeal, that the Commission had infringed the obligation to state reasons by disregarding the data used by the Republic of Poland without explaining in what way those data did not comply with the criteria laid down in Annex III to the Directive.
12.
Finally, in paragraphs 155 to 163 of the judgment under appeal, the General Court found that those errors of law had to result in the annulment not only of Article 1(1), Article (2)(1) and Article 3(1) of the contested decision but also of the decision in its entirety owing to the non-severability of its other provisions.
V – Procedure before the Court of Justice
13.
The Commission appealed against the judgment under appeal. It claims that the Court should:
—
set aside the judgment under appeal in its entirety;
—
order the Republic of Poland to pay the costs of the proceedings.
14.
In its reply to the Commission’s appeal, the Republic of Poland contends that the Court should:
—
dismiss the appeal in its entirety on the basis of the first indent of Article 116(1) of the Rules of Procedure of the Court of Justice;
—
if the Court does not dismiss the appeal in its entirety, examine and adjudicate on the entirety of the forms of order sought at first instance and, in particular, examine and rule on the first plea of the application for annulment under the second indent of Article 116(1) of the Rules of Procedure of the Court of Justice.
—
if the Court does not dismiss the appeal in its entirety and does not rule on the forms of order sought in the above indent, rule on the forms of order sought at first instance in the third to ninth pleas, following examination of the case by the Court of Justice or by the General Court, at the discretion of the Court of Justice.
—
order the Commission to pay the costs.
15.
In its reply to the Commission’s appeal, the United Kingdom of Great Britain and Northern Ireland contends that the Court should:
—
uphold the Commission’s appeal and set aside the judgment under appeal, except as regards the first plea.
16.
By order of 28 June 2010, the Czech Republic and Romania were granted leave to intervene in support of the forms of order sought by the Republic of Poland, and the Kingdom of Denmark was granted leave to intervene in support of the forms of order sought by the Commission.
17.
At the hearing on 29 September 2011, the representatives of the Czech, Danish and Polish Governments and of the Commission stated their positions and answered the questions put to them.
VI – The Commission’s interest in bringing proceedings
18.
On 11 December 2009, that is to say after the annulment of the contested decision and after the Commission lodged its appeal against the judgment under appeal, the Commission adopted a new decision based on Article 9(3) of the Directive. In that new decision, it rejected the Republic of Poland’s NAP, stating its incompatibility with the criteria listed in Annex III to the Directive, without indicating a ceiling for the total quantity of allowances to be allocated. The Republic of Poland did not challenge the new decision and notified a new NAP on 8 April 2010, in which it proposed a total quantity of allowances to be allocated of 208.5 million tonnes of CO2. In a decision of 19 April 2010, the Commission did not express any reservations about that NAP.
19.
In those circumstances, the Commission’s interest in bringing proceedings should be examined. In fact, the Court may of its own motion raise the objection that a party has no interest in maintaining an appeal, on the ground that an event subsequent to the judgment of the General Court removes the prejudicial effect thereof as regards the appellant, and declare the appeal inadmissible or devoid of purpose for that reason. For the appellant to have an interest in bringing proceedings, the appeal must be capable, if successful, of procuring an advantage to the party bringing it. (
2
)
20.
In this case, the adoption of the new decision has not had the effect of completely removing the Commission’s interest in maintaining the appeal. Of course, any setting aside of the judgment under appeal would not have the effect of reviving the contested decision, which has meanwhile been replaced by the new decision. However, a judgment by the Court of Justice confirming the Commission’s interpretation of Article 9(3) of the Directive preserves the Commission’s interest. In fact, the Czech Republic, Hungary, the Republic of Lithuania and Romania have contested the Commission’s decisions rejecting their respective NAPs before the General Court. (
3
) Those proceedings were stayed pending the judgments of the Court of Justice in the present case and in Case C-505/09 P Commission v Estonia. The Commission’s interest in taking action is therefore maintained in view of those proceedings pending before the General Court.
VII – The first plea
21.
By its first plea, the Commission complains that the General Court infringed Article 48(2) of its Rules of Procedure, ruled ultra petita and exceeded its powers of review.
22.
This plea concerns the General Court’s reasoning in paragraphs 70 to 79 of the judgment under appeal. In paragraph 70 of the judgment under appeal, the General Court considered that the Republic of Poland’s second plea was divided into two parts, the first alleging infringement of the duty to state reasons and the second alleging the erroneous interpretation and application of the provisions of Article 9(1) and (3) of the Directive. Then, in paragraphs 71 to 79 of the judgment under appeal, the General Court examined the Commission’s complaint that the second part of the second plea was a new plea which had been raised by the Republic of Poland for the first time at the reply stage and was therefore inadmissible. The General Court rejected that objection of inadmissibility. It found that the argument concerning infringement of Article 9(3) of the Directive was already contained in the Republic of Poland’s application and that the additional arguments that it put forward in the context of its reply were merely an amplification of that part of the plea.
23.
The Commission criticises the General Court for admitting the second part of the second plea relied on by the Republic of Poland. In its view, that part of the plea was not based on the arguments submitted by the Republic of Poland in its application.
24.
The Commission’s first plea must be rejected. The General Court rightly found that the second part of the Republic of Poland’s second plea was admissible.
25.
Under Articles 21 and 53 of the Statute of the Court of Justice of the European Union and Article 44(1)(c) of the Rules of Procedure of the General Court, applications must include a brief statement of the pleas in law on which they are based. A plea alleging infringement of a rule of law under the second paragraph of Article 230 EC (now Article 263 TFEU) must therefore state the rule concerned.
26.
Article 48(2) of the Rules of Procedure of the General Court provides that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. This rule prohibiting new pleas must be interpreted in the light, first, of its objective of ensuring the sound administration of justice and of the rights of the defence and, secondly, of the right to an effective remedy. Having regard to those principles, a plea must be regarded as admissible where the essential matters of fact or of law on which it is based are expressed sufficiently clearly and precisely in the application to enable the defendant to prepare its defence and the General Court to rule on the action, if necessary without any further information. It is therefore sufficient that the plea is apparent from the application, even if it is only stated briefly, provided that the statement is coherent and comprehensible. (
4
)
27.
Contrary to the Commission’s claim, the General Court rightly found that the complaint of an erroneous interpretation and application of Article 9(3) of the Directive had been expressed sufficiently clearly and precisely in the Republic of Poland’s application. As follows inter alia from paragraphs 73 and 74 of the judgment under appeal, in that application the Republic of Poland had criticised the fact that, by not examining the data that the Republic of Poland had submitted in its NAP and by confining itself to using its own data, the Commission had exceeded its powers.
28.
Next, the Commission’s complaint that the General Court, on its own initiative, determined that that part of the plea related to Article 9(3) of the Directive must be rejected. As the General Court states in paragraph 75 of the judgment under appeal, the Republic of Poland refers to Article 9(3) of the Directive in connection with its second plea, in paragraph 54 of its application. In any event, it must be stated that the Republic of Poland was clearly referring to that provision, which was the legal basis for adopting the contested decision.
29.
Finally, the complaint that the Republic of Poland’s reasoning in the second plea lacked clarity because it referred to provisions other than Article 9(3) of the Directive is unfounded. Contrary to the Commission’s claim, the reference to Article 9(1) of the Directive could not give rise to doubt as to the purpose of the second part of the plea. In fact, those two provisions are closely linked: in so far as the Commission exceeds its powers of review of an NAP under Article 9(3) of the Directive, it encroaches on the Member States’ powers to develop the NAP under paragraph 1 of that article.
30.
The Commission’s first plea must therefore be rejected.
VIII – The second plea
31.
The Commission’s second plea concerns an error of law in the interpretation of Article 9(3) of the Directive.
32.
This plea relates to the General Court’s reasoning in paragraphs 80 to 134 of the judgment under appeal. In that part of the judgment, in paragraphs 80 to 92, the General Court first made some observations about the Directive’s objectives, the allocation of powers between the Commission and the Member States and the extent of its judicial review. Then, in paragraphs 99 to 134 of the judgment under appeal, it found that the Commission infringed Article 9(1) and (3) of the Directive, first, by replacing the assessment method and the data proposed by the Republic of Poland in its NAP with its own assessment method and its own data and, secondly, by imposing a binding upper limit on the total quantity of greenhouse gas emission allowances to be allocated.
33.
In the preliminary observations concerning its second plea in law, the Commission first criticises the General Court for finding that the Commission’s review of an NAP under Article 9(3) of the Directive is a conformity review which is severely limited (A). Then, the plea submitted by the Commission is divided into two parts, the first of which alleges infringement of the principle of equal treatment (B), while the second alleges disregard of the subject-matter and purpose of the Directive (C).
A – The nature of the review under Article 9(3) of the Directive
34.
In the first place, the merits of the complaints regarding the General Court’s preliminary observations on the allocation of powers between the Commission and the Member States should be examined.
35.
First, in paragraphs 82 and 83 of the judgment under appeal, the General Court referred to the third paragraph of Article 249 EC (now the third paragraph of Article 288 TFEU) and held that, in the field of the environment governed by Articles 174 EC to 176 EC (now Articles 191 TFEU to 193 TFEU), the European Union and the Member States share competence. It inferred from that that, where there is no Community rule prescribing clearly and precisely the form and methods that must be employed by the Member State, the Member States’ freedom to choose the forms and methods remains, in principle, complete and that the Commission therefore has the task of proving to the required legal standard that the instruments used by the Member State are contrary to European Union law. Then, in paragraphs 85 to 88 of the judgment under appeal, the General Court considered that Member States alone have the power to draw up NAPs and adopt final decisions on the total quantity of allowances and that they have a certain margin for manoeuvre when exercising those powers. Finally, as regards the powers of the Commission, the General Court found in paragraph 89 of the judgment under appeal that it follows unequivocally from Article 9(3) of the Directive that the Commission’s powers of review are severely limited, as the Commission is empowered only to verify the conformity of the Member State’s NAP with the criteria set out in Annex III and the provisions of Article 10 of the Directive.
36.
In its second plea, the Commission, supported by the United Kingdom, submits that its power of review under Article 9(3) of the Directive cannot be described as a severely limited conformity review. Before examining that complaint (2), I should like, first of all, to outline briefly the NAP review procedure established by Articles 9 and 11 of the Directive (1).
1. The NAP review procedure
37.
Article 1 of the Directive establishes a Community scheme for greenhouse gas emission allowance trading in order to promote reductions of greenhouse gas emissions in a cost-effective and economically efficient manner.
38.
Under that scheme, each Member State is to develop an NAP stating, inter alia, the total quantity of allowances that it intends to allocate for the trading period in question and how it proposes to allocate them. According to the second sentence of Article 9(1) of the Directive, the NAP must be based on objective and transparent criteria, including those listed in Annex III to the Directive, taking due account of comments from the public. The Member States must notify their NAPs to the Commission and to the other Member States at least 18 months before the beginning of the relevant trading period.
39.
According to Article 9(3) of the Directive, the Commission is to verify whether the NAPs are compatible with the criteria listed in Annex III and with Article 10 of the Directive and reject those that are not. Article 11(2) of the Directive indicates that a Member State may base its final decision on the total quantity of allowances that it will allocate for the period in question on an NAP that the Commission has approved or not rejected within a period of three months from its notification. On the other hand, a Member State may not base its final decision on an NAP that the Commission has rejected. The Commission therefore has a blocking power.
2. The Commission’s criticisms
40.
The General Court rightly found that the Commission’s review of NAPs under Article 9(3) of the Directive is a conformity review. As the General Court pointed out in paragraph 89 of the judgment under appeal, it follows unequivocally from that provision that the Commission’s role is limited to reviewing the conformity of the Member State’s NAP with the criteria set out in Annex III and the provisions of Article 10 of the Directive. To reject an NAP, the Commission must therefore prove that the Member State exceeded the margin for manoeuvre accorded to it by the Directive.
41.
The Commission’s criticism of the General Court’s reasoning is unfounded.
42.
First, it cannot be inferred from the ex ante nature of the review under Article 9(3) of the Directive that it goes beyond a review of conformity. Of course, the Directive attributes an important role to the Commission, which has, in particular, a power to review and block. However, Article 9(3) of the Directive does not confer on it the power to substitute itself for a Member State in respect of the drawing up of its NAP or the adoption of its final decision on the allowances to be allocated. Therefore the Commission can reject an NAP only where it proves that the Member State has exceeded the margin for manoeuvre afforded to it by the Directive.
43.
Secondly, the General Court rightly found that the characterisation of the review under Article 9(3) of the Directive as a conformity review is in the spirit of the third paragraph of Article 249 EC, according to which a directive is binding on all Member States as to the result to be achieved, whilst leaving to the national authorities the choice of form and methods. Contrary to the Commission’s claim, that rule is applicable in this case.
44.
First of all, the Commission’s argument that the third paragraph of Article 249 EC is applicable only to an ex post review, such as that carried out in proceedings concerning a failure to fulfil obligations, must be rejected. That rule is applicable generally. It must therefore be taken into account in this case, where it is a question of assessing whether the Commission is required to respect the Member States’ choice of the data and methods of assessment used to draw up their NAPs.
45.
Secondly, the Commission’s argument that the Member States cannot have any margin for manoeuvre because the third paragraph of Article 249 EC is not applicable on account of the ‘legislative’ nature of Article 9(3) of the Directive must be rejected. In the Commission’s view, a provision of a directive which is intended to apply only between the institutions and the Member States, the applicability of which does not therefore depend on its being previously transposed into national law, is ‘legislative’ in nature. That argument is not convincing. The third paragraph of Article 249 EC applies to all provisions of a directive and also, therefore, to provisions intended to be applied only between the institutions and the Member States. Moreover, the Commission does not give any convincing reason why a provision such as Article 9(3) of the Directive should leave the Member States no margin for manoeuvre regarding form and methods when those aspects were not harmonised in the Directive. In any event, the General Court’s approach is justified, given the fact that the Directive was adopted in an area of shared competence in which the Member States remain competent in so far as an aspect has not been harmonised.
46.
Thirdly, the Commission cannot successfully claim that it has discretion in that it is required to make its own complex economic and ecological assessments as part of its review of NAPs under Article 9(3) of the Directive and that that discretion limits the Member States’ margin for manoeuvre. In fact, the Commission’s discretion cannot alter the nature of the review provided for by Article 9(3) of the Directive as a conformity review. The Commission’s discretion therefore allows it to determine a point of comparison based on the data and methods of its choice, which it can use to prove that the NAPs are not compatible with the criteria listed in Annex III and Article 10 of the Directive. However, it does not allow it to reject a Member State’s NAP on the sole ground that it does not conform to the point of comparison that it has chosen.
47.
The criticisms of the General Court’s preliminary observations in paragraphs 82 to 89 of the judgment under appeal must therefore be rejected.
B – The first part, alleging infringement of the principle of equal treatment
48.
The first part of the Commission’s second plea concerns the General Court’s finding that the Commission infringed Article 9(3) of the Directive by substituting its own analysis for the Republic of Poland’s analysis. That part is divided into two complaints alleging, first, infringement of the principle of equal treatment (1) and, secondly, an error of law by the General Court concerning the data replaced by the Commission (2).
1. The complaint alleging infringement of the principle of equal treatment
49.
In the proceedings before the General Court, the Commission defended its interpretation of Article 9(3) of the Directive, according to which it was not obliged to examine the data submitted by the Republic of Poland in its NAP, by arguing that the principle of equal treatment obliged it to use data issuing from the same sources and assessment methods for the NAPs of all the Member States.
50.
The General Court rejected this argument in paragraphs 100 to 120 of the judgment under appeal. It considered that the principle of equal treatment cannot alter the division of powers between the Commission and the Member States laid down by the Directive, under which the Member States have competence to draw up their NAPS and to take the final decision on the quantity of allowances to be allocated. Where the Commission has no power of uniformisation or central role in the drawing up of NAPs, it cannot rely on the principle of equal treatment to impose a uniform assessment method on the Member States. The Commission is therefore required to review the conformity of the data contained in the Republic of Poland’s NAP with the criteria listed in Annex III to the Directive and hence cannot limit itself to replacing the data contained in the NAP with its own data.
51.
The Commission, supported by the Kingdom of Denmark, complains that the General Court misinterpreted its power of review under Article 9(3) of the Directive and infringed the principle of equal treatment. It claims that it is obliged to use up-to-date data issuing from the same source and forecasts relating to the same period for all the Member States in order to ensure equal treatment of all the NAPs.
52.
The complaint that the extent of the Commission’s power of review under Article 9(3) of the Directive has been misinterpreted (a) should be examined before the criticism regarding infringement of the principle of equal treatment (b). Finally, I shall examine the other criticisms of the General Court’s reasoning (c).
(a) The extent of the Commission’s power of review
53.
In the first place, the Commission complains that the General Court misinterpreted its power of review under Article 9(3) of the Directive. It considers that it is itself authorised to determine the parameters for assessing the conformity of the data contained in the NAP with the criteria listed in Annex III to the Directive. In its view, consequently, it is not obliged to verify the veracity of the economic data used in the NAP.
54.
The Commission’s complaint is unfounded. The General Court rightly held that the Commission had to verify whether the economic data included by the Republic of Poland in its NAP conformed to the criteria listed in Annex III to the Directive.
55.
As has been stated above, Article 9(3) of the Directive confers on the Commission only a conformity review power enabling it to reject a Member State’s NAP which does not conform to the criteria listed in Annex III or the provisions of Article 10 of the Directive. (
5
)
56.
As for the extent of the review, the General Court rightly found in paragraph 105 of the judgment under appeal that Annex III to the Directive lists the criteria that a Member State must respect in its NAP, without, however, specifying the forms and methods to be used to assess the conformity of the NAP with those criteria. The Member States therefore remain free to use the data and assessment methods of their choice, provided that they do not produce results which do not conform to those criteria. In the context of its review under Article 9(3) of the Directive, the Commission must respect the Member States’ margin for manoeuvre. It follows that it cannot reject the NAP of a Member State on the sole ground that the data included in it do not conform to the data of its choice, but must prove that the data included in the NAP do not conform to the criteria listed in Annex III to the Directive.
57.
The arguments submitted by the Commission in support of its position are not convincing.
58.
First, the Commission’s argument that it was not obliged to examine the data included in the Republic of Poland’s NAP because it had stressed to the Member States the importance of verified data of actual emissions should be rejected. Such an approach would be justified in a system enabling the Commission to substitute itself for the Member States or to determine itself the parameters applicable to the assessment of the conformity criteria. However, the Directive does not confer such powers on the Commission. If the Commission had doubts about the conformity of the data included in the NAP, it was incumbent on it to prove the non-conformity of those data with the criteria listed in Annex III to the Directive.
59.
Secondly, it cannot be inferred from the simultaneity of the Commission’s reviews of the NAPs of the various Member States that the Directive confers on it the power to replace the data included in the NAP by a Member State with the data of its own choice.
60.
Thirdly, a teleological interpretation drawing attention to the purpose of Article 9(3) of the Directive cannot justify the Commission’s approach according to which it is not obliged to examine the data included by the Republic of Poland in its NAP.
61.
There is no basis for such an approach in recital 30 in the preamble to the Directive. That recital provides only that the greenhouse gas emission allowance trading scheme cannot be implemented sufficiently by the Member States acting individually and that it can therefore be better achieved at Community level.
62.
Next, the argument that the Directive’s objectives cannot be achieved by proceeding in a manner other than that proposed by the Commission must be rejected. In an area of shared competence such as that of environmental protection, it is for the European Union’s legislature to determine the measures that it considers to be necessary to achieve the objectives pursued, whilst respecting the principles of subsidiarity and proportionality. Where the legislature’s choice is indicated clearly and unequivocally by the act concerned, it is not for the European Union’s courts to replace the legislature’s assessment with their own by means of a teleological interpretation.
63.
The wish of the European Union’s legislature to confer only a conformity review power and not a power of substitution or of uniformisation on the Commission is apparent both from the clear and unequivocal wording of Article 9(3) of the Directive and from its travaux préparatoires. (
6
) The interpretation of Article 9(3) of the Directive put forward by the Commission therefore exceeds the limits of a teleological interpretation. It is for the European Union’s legislature to amend that provision if it considers that it does not permit the objectives pursued to be achieved. (
7
)
64.
The criticism alleging an erroneous view of the extent of the Commission’s power of review under Article 9(3) of the Directive must, accordingly, be rejected.
(b) The principle of equal treatment
65.
In the second place, the Commission claims that the General Court infringed the principle of equal treatment.
66.
This claim is unfounded.
67.
The principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. The elements which characterise different situations, and hence their comparability, must be determined and assessed in the light of the subject-matter and purpose of the European Union act which makes the distinction in question. (
8
)
68.
However, it is clear that the Commission’s claim is based an erroneous view of its power of review under Article 9(3) of the Directive. Contrary to the Commission’s claim, that provision does not authorise it to determine the economic parameters to be used to assess the conformity of an NAP with the criteria listed in Annex III to the Directive. As has been explained above, the Directive leaves the Member States a margin for manoeuvre and they are free to apply the data and assessment methods of their choice, provided that that choice does not produce results which do not conform to those criteria. Any differences between the choices of the Member States are an expression of their margin for manoeuvre, which the Commission must respect in the context of its conformity review. The Commission does not therefore infringe the principle of equal treatment by accepting the different choices of the Member States in so far as they do not exceed the limits of their margin for manoeuvre.
69.
The claim alleging infringement of the principle of equal treatment must therefore be rejected.
(c) The other criticisms
70.
In the third place, the other criticisms submitted by the Commission must be rejected.
71.
First of all, the Commission claims that the General Court disregarded its case-law by accepting, in paragraphs 117 and 118 of the judgment under appeal, an unlimited possibility of amending the NAPs. In the Commission’s view, an NAP which has been notified to the Commission can be amended only for the purpose of its adaptation on the basis of a Commission decision to reject it. If it were otherwise, the operation of the allowance trading scheme would be jeopardised and the Member States would be encouraged to delay the notification of their NAPs or to notify an incomplete NAP in order to be able to use more favourable data. That claim must be rejected without there being any need to examine its merits. In fact, even if the Commission’s criticism were well-founded, it could not cast doubt on the General Court’s finding that the Commission was obliged to review the conformity of the data contained in the Republic of Poland’s NAP with the criteria listed in Annex III to the Directive and that it could not therefore limit itself to replacing the data contained in that NAP with its own data.
72.
Next, the Commission’s claim alleging a contradiction in the General Court’s reasoning in paragraphs 113 to 116 of the judgment under appeal with its previous position, that only the Member States have competence to draw up NAPs, is unfounded. In that part of the judgment under appeal, the General Court merely held that the Commission is obliged to take into account updated data submitted by the Member State. It did not therefore cast doubt on its position that the Member States have competence to draw up NAPs.
(d) Conclusion
73.
The complaint concerning the General Court’s finding that the Commission infringed Article 9(3) of the Directive by replacing the analysis made by the Republic of Poland with its own analysis must, therefore, be rejected as unfounded.
2. The complaint alleging an incorrect interpretation of the factual situation
74.
The Commission complains that the General Court incorrectly interpreted the factual situation in paragraphs 100 to 103 of the judgment under appeal, where it held that the Commission could not limit itself to replacing the data included in the NAP with the data obtained from its own method of assessment. It claims that the General Court failed to recognise the fact that it was not using its own data and assessment methods. The data relating to actual CO2 emissions were data directly provided by operators of installations covered by the Directive, verified in accordance with Decision No 280/2004/EC 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), published in the independent Community transaction log and sent by the Republic of Poland as a supplement to its NAP. The gross domestic product (GDP) forecasts for the years 2005 to 2010 were based on national statistics compiled in collaboration with national experts.
75.
The complaint is admissible. Even if the assessment of the facts by the General Court does not constitute a point of law which is subject, as such, to review by the Court of Justice, the distortion of the facts or evidence placed before the court can be reviewed by it. (
9
) The Commission claims that the General Court did not take into account its statements and the reasons for the contested decision regarding the origin of the data and the methods that it used.
76.
However, that complaint is unfounded. It is based on an erroneous interpretation of paragraphs 100 to 103 and 120 of the judgment under appeal. In criticising the Commission for having replaced the data used by the Republic Poland in its NAP with the data obtained from its own assessment method, the General Court did not criticise the Commission’s choice of data. In fact, in paragraph 120 of the judgment under appeal, it explicitly stated that there was no need to rule on whether Commission’s choice was right. The General Court’s criticism was not therefore directed at the choice or the source of the data, but the fact that the Commission did not review the compatibility of the data contained in the Polish NAP with the criteria laid down in Annex III to the Directive.
C – The second part, alleging disregard of the objectives of the Directive
77.
The second part of the second plea alleges disregard of the objectives pursued by the Directive when interpreting the scope and extent of the Commission’s powers of review on the basis of Article 9(3) of the Directive.
78.
That part relates to the General Court’s reasoning in paragraphs 121 to 131 of the judgment under appeal, where the General Court found that the Commission had exceeded the limits of its power of review under Article 9(3) of the Directive by setting an upper limit on the total quantity of greenhouse gas emission allowances to be allocated in the contested decision.
79.
The Commission argues that the objective and purpose of the Directive cannot be achieved if it does not have the power to set such an upper limit and that its approach is justified on the grounds of procedural economy. It claims that the General Court did not correctly distinguish between the Commission’s setting of an upper limit and the determination of the quantity of allowances to be allocated by the Member State.
80.
That part of the plea is unfounded.
81.
The General Court rightly held that the Directive does not confer on the Commission the power to set an upper limit restricting the allocation of allowances in a rejection decision. As explained above, the Member States are responsible for drawing up NAPs and adopting the final decision. The Commission’s powers are limited to reviewing the conformity of the NAPs, enabling it to block NAPs which do not conform to the criteria listed in Annex III and Article 10 of the Directive. The General Court therefore rightly found that the Commission in fact substituted itself for the Republic of Poland by setting an upper limit for the allocation of allowances and that it thus encroached upon the powers of that Member State.
82.
The Commission’s criticisms of the General Court’s reasoning are unconvincing.
83.
First, the Commission’s argument that it did not encroach upon the Republic of Poland’s powers under Article 11(2) of the Directive by setting an upper limit on the allocation of allowances because the Republic of Poland still had the possibility of setting a total quantity of allowances to be allocated which was identical to or lower than that upper limit must be rejected. In fact, if the Commission had such a power, it could impose on Member States the data and assessment methods of its choice regarding the total amount of allowances to be allocated. However, the Directive does not confer such a power on it but leaves the Member States a margin for manoeuvre as regards choice of data and assessment methods.
84.
Secondly, the Commission’s complaint that the General Court did not take sufficient account of the need to ensure the smooth operation of the emission allowance trading system must be rejected. As stated above, the wish of the European Union’s legislature to confer only a conformity review power on the Commission is clear from the Directive. Consideration of the smooth operation of the trading system does not justify conferring on the Commission additional extra legem powers.
85.
Thirdly, the Commission’s objection that it is possible to prove ex post that the unconditional recognition of the data on CO2 emissions and of the proposed total quantity of allowances to be allocated stated in the Republic of Poland’s NAP would not only have produced a result contrary to criteria Nos 1 and 3 of the Directive but also have had an inflationary effect on CO2 emission allowances on the market seems to be based on a misinterpretation of the judgment under appeal. In fact, the General Court recognised that the Commission can reject an NAP which does not conform to the criteria listed in Annex III to the Directive and did not therefore consider that the Commission had to recognise unconditionally the data included in the Polish NAP.
86.
Fourthly, the Commission argues that an interpretation of Article 9(3) of the Directive to the effect that it has the power to set an upper limit on the quantity of allowances to be allocated is justified on grounds of procedural economy. That would avoid successive decisions to reject NAPs because of their incompatibility with the criteria specified in Annex III to the Directive and would enable the Member States to adopt the final decision under Article 11(2) of the Directive within the periods laid down. In this context, the Commission claims that the General Court misunderstood the legal significance of the upper limit referred to in Article 2 of the contested decision and that that statement merely had the consequence of limiting its decision-making power. By stating that amount, it would itself merely have been obliged not to reject an amended NAP if the quantity of allowances proposed in that NAP was lower than or equal to the upper limit for allowances stated in the contested decision.
87.
That argument must also be rejected as unfounded.
88.
It should be noted, first of all, that the Commission’s rejection of an NAP requires the Member State concerned to amend its NAP. The Commission cannot substitute itself for the Member State in this regard and cannot therefore amend a Member State’s NAP in its place.
89.
However, the obligation to state reasons laid down in the third sentence of Article 9(3) of the Directive obliges the Commission to state the reasons why it considers that the rejected NAP does not conform to the criteria specified in Annex III and Article 10 of the Directive. (
10
)
90.
Nothing in the Directive precludes the Commission from making proposals or recommendations in the statement of reasons for rejecting a decision. It may therefore state the level of allowances that it considers to be in conformity with the criteria listed in Annex III to the Directive, provided that it is not imposed as a mandatory requirement on the Member State concerned. In fact, in view of the relatively short period that the Member State has in which to amend its rejected NAP, such a statement can be justified by the principle of loyal cooperation.
91.
Moreover, the Commission does not exceed the powers conferred by Article 9(3) of the Directive if it announces in the operative part of a rejection decision that it will not reject an amended NAP which conforms to the proposals and recommendations made in that rejection decision. Such a procedure can be justified by the principle of loyal cooperation and the requirements of procedural economy.
92.
On the other hand, the Commission exceeds the powers provided for in Article 9(3) of the Directive where it sets a compulsory upper limit on allowances in the rejection decision. By proceeding in this manner, the Commission exceeds the limits of its conformity review and encroaches upon the powers of the Member States.
93.
The General Court rightly found in this case that the Commission exceeded the limits of its power under Article 9(3) of the Directive. In fact, the Republic of Poland, to which the contested decision was addressed, could not but consider that the setting of an upper limit on allowances in Article 2 of the contested decision was restrictive. In Article 3(3) of the contested decision, the Commission had stated that any amendment to the NAP other than those required in Article 2 was inadmissible. The amendment concerning the upper limit on allowances to be allocated which was provided for in that article was based on data and assessment methods chosen by the Commission. Since the Commission did not take care to examine whether the data included by the Republic of Poland in its NAP conformed to the criteria listed in Annex III to the Directive, the Republic of Poland could not expect that the Commission would examine the data included in its amended NAP that did not observe the upper limit stated in Article 2 of its rejection decision.
94.
The second part of the second plea must therefore be rejected.
D – Conclusion
95.
The second plea must accordingly be rejected in its entirety.
IX – The third plea
96.
The Commission’s third plea alleges that there was a misinterpretation of the obligation to state reasons laid down in Article 253 EC (now Article 296 TFEU) and Article 9(3) of the Directive.
97.
This plea concerns the General Court’s reasoning set out in paragraphs 138 to 153 of the judgment under appeal, where the General Court found that the Commission had infringed its obligation to state reasons. In paragraphs 136 to 143 of the judgment under appeal, the General Court first examined the extent of the obligation to state reasons. After recalling the case-law concerning Article 253 EC, it held that it was the duty of the Commission, under Article 9(3) of the Directive, to explain in what way the data and methods used in the NAP II were incompatible with the criteria laid down in Annex III to the Directive. Then, in paragraphs 144 to 153 of the judgment under appeal, the General Court found that the Commission had infringed that obligation to state reasons.
98.
The Commission claims that the General Court misinterpreted the scope of the obligation to state reasons under Article 253 EC and the third sentence of Article 9(3) of the Directive. It observes that it is required to state the reasons for a rejection decision in such a way that its addressee can understand it and the General Court can review its conformity with the law. The Commission considers that the statement of reasons contained in the contested decision was sufficient, as the Republic of Poland was provided with additional factual and legal evidence.
A – Invalidity of the plea
99.
The third plea is invalid. The decision to annul Articles 1(1), 2(1) and 3(1) of the contested decision is based primarily on the General Court’s reasoning in paragraphs 70 to 133 of the judgment under appeal, where the General Court found that the Commission had erred in law regarding the interpretation of its power of review under Article 9(3) of the Directive. That part of the reasoning, which is not vitiated by an error of law, (
11
) justifies in itself the annulment of the abovementioned provisions of the contested decision. Any error of law in the alternative grounds of the General Court concerning the infringement of the obligation to state reasons cannot therefore undermine its decision.
B – The merits of the third plea
100.
As to the merits of the third plea, a distinction should be drawn between the obligation to state reasons under Article 253 EC and the obligation to state reasons under Article 9(3) of the Directive.
101.
In paragraph 153 of the judgment under appeal, the General Court found that the Commission had infringed the obligation to state reasons incumbent upon it without stating whether that finding concerned the obligation to state reasons laid down in the third sentence of Article 9(3) of the Directive or the obligation laid down in Article 253 EC. In paragraphs 136 to 138 of the judgment under appeal, the General Court observed that the obligation to state reasons laid down in Article 253 EC is reaffirmed in Article 9(3) of the Directive. In view of the link that the General Court established between these two obligations to state reasons, it cannot be ruled out that its finding concerned not only the obligation to state reasons under Article 9(3) of the Directive but also the obligation to state reasons under Article 253 EC.
102.
Contrary to the approach adopted by the General Court, I consider that a distinction should be made between these two obligations to state reasons. In my opinion, the Commission did not infringe the obligation to state reasons laid down in Article 253 EC but infringed the obligation to state reasons laid down in the third sentence of Article 9(3) of the Directive.
1. The obligation to state reasons laid down in Article 253 EC
103.
The obligation to state reasons under Article 253 EC requires of the institutions that they base their legal measures on a clear and unequivocal statement of reasons so as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to exercise its power of review. (
12
) It is sufficient that the statement of reasons follows from the context in which the measure was adopted and the whole body of legal rules governing the matter in question. (
13
) It is not therefore necessary for the reasoning to go into all the relevant facts and points of law. (
14
)
104.
In this case, the Commission did not infringe that obligation to state reasons. In fact, it is clear from the reasoning of the contested decision that the Commission considered that Article 9(3) of the Directive allowed it to determine the maximum number of allowances on the basis of the data and assessment methods of its choice. That statement of reasons for the contested decision enabled the Republic of Poland to understand the reasons why the Commission had adopted the contested decision and the General Court to review its conformity with the law.
105.
On the other hand, the fact that the Commission misinterpreted its powers under Article 9(3) of the Directive and that its statement of reasons reflects that misinterpretation does not constitute an infringement of the obligation to state reasons under Article 253 EC. (
15
)
106.
The reasoning of the judgment under appeal is therefore vitiated by an error of law in so far as the General Court found that the Commission infringed Article 253 EC.
2. The obligation to state reasons laid down in the third sentence of Article 9(3) of the Directive
107.
On the other hand, I do not consider the finding of an infringement of the obligation to state reasons to be vitiated by an error of law in so far as it relates to Article 9(3) of the Directive.
108.
In fact, it follows from the wording, the schematic context and the objective of that provision that it cannot be interpreted in the same way as Article 253 EC. As stated above, the Commission’s rejection of the NAP blocks the adoption of the final decision by the Member State concerned, which is obliged to amend its NAP and notify that NAP to the Commission within a relatively short period. (
16
) The obligation to state reasons laid down in Article 9(3) of the Directive must therefore be interpreted taking account of that temporal limitation and of the principle of loyal cooperation between the Commission and the Member States. It follows that the third sentence of Article 9(3) of the Directive obliges the Commission to give the Member State any useful guidance to enable it to draw up and notify an amended NAP and adopt the final decision within the periods laid down by the Directive.
109.
Contrary to the Commission’s claim at the hearing, the obligation to state reasons laid down in the third sentence of Article 9(3) of the Directive applies to all Commission rejection decisions and not only to a second rejection decision. This interpretation is dictated by the wording and objective of that provision.
110.
As the General Court found in paragraphs 144 to 153 of the judgment under appeal, the statement of reasons for the contested decision did not satisfy the requirements of the third sentence of Article 9(3) of the Directive. In fact, having regard to the objective of that provision, it was incumbent upon the Commission to explain, in the first place, in what way the data and method adopted by the Republic of Poland did not meet the criteria laid down in Annex III to the Directive. However, the Commission limited itself to expressing doubts about the reliability of the data included by the Republic of Poland in its NAP and confined itself to replacing the Republic of Poland’s data with the data of its choice on the ground that the data of its choice were more reliable. That statement of reasons did not enable the Republic of Poland to understand the reasons why its choice of data and methods did not conform to the criteria laid down in Annex III to the Directive.
111.
Contrary to the Commission’s claim, neither the fact that the Republic of Poland had sent an updated statement of CO2 emissions for the year 2005 nor the fact that the Republic of Poland had additional factual and legal evidence as a result of the Commission’s communication of 29 November 2006 (
17
) and the committee’s discussions on climate change discharged it from its obligation to demonstrate in what way the data submitted by the Republic of Poland in its NAP did not conform to the criteria listed in Annex III to the Directive. As stated above, (
18
) the parameters applicable to assessing whether an NAP conforms to the criteria listed in Annex III to the Directive were not harmonised and the Directive does not confer a power of uniformisation on the Commission or on the Climate Change Committee.
112.
In so far as the General Court found that the Commission infringed the obligation to state reasons under the third sentence of Article 9(3) of the Directive, it did not therefore err in law.
C – Conclusion
113.
Consequently, the Commission’s third plea is well founded in so far as it concerns the General Court’s finding that the Commission infringed the obligation to state under reasons laid down in Article 253 EC. Nevertheless, the third plea cannot succeed, first, because it relates to a statement of reasons for the contested decision which is superfluous and, secondly, because it is not well founded in respect of the General Court’s finding that the Commission infringed its obligation to state reasons laid down in the third sentence of Article 9(3) of the Directive.
114.
The Commission’s third plea must therefore be rejected.
X – The fourth plea
115.
By its fourth plea, the Commission claims that the General Court erred in law in so far as it considered that the provisions of the contested decision were not severable and that that decision had therefore to be annulled in its entirety.
116.
This plea concerns paragraphs 155 to 163 of the judgment under appeal, where the General Court decided that an annulment relating only to Articles 1(1), 2(1) and 3(1) of the contested decision would alter the very substance of the remaining provisions of that decision.
117.
In the Commission’s view, those provisions were severable from the rest of the contested decision. It claims that partial annulment relating only to those provisions would not have changed the contested decision into a decision that it had not intended to adopt.
118.
The fourth plea must be rejected.
119.
According to the Court’s case-law, the partial annulment of an act of an institution requires that the annulled provisions of the act may be severed from the other provisions and that that partial annulment of the act does not alter its substance. (
19
) The substance of the act is altered where its author, from an objective point of view, would not have adopted that act in its amended form.
120.
The General Court rightly found that the separate annulment of Articles 1(1), 2(1) and 3(1) of the contested decision would have altered its substance.
121.
First, the General Court rightly found that the various paragraphs of Articles 1 and 2 of the contested decision were not severable. Although the various paragraphs of those articles refer to different aspects of the NAP and to different criteria in Annex III to the Directive, it follows from the structure of Articles 1 and 2 of the contested decision that a partial annulment relating only to paragraph 1 of those articles would have had the effect of altering the substance of those articles. Article 1 of the contested decision contained an exhaustive list of the Commission’s objections concerning the conformity of the Republic of Poland’s NAP with the criteria listed in Annex III to the Directive. As the General Court found, a partial annulment relating only to paragraph 1 of that article would have had the effect of reducing that exhaustive list. Article 2 of the contested decision contained the Commission’s undertaking not to oppose the Republic of Poland’s NAP if it amended its NAP on the basis of the suggestions put forward in paragraphs 1 to 4 of that article. A partial annulment relating only to paragraph 1 of that article would have had the effect of reducing the number of amendments subject to which the Commission’s undertaking was initially given.
122.
However, it follows both from the contested decision and from the positions taken by the Commission before the General Court that the Commission was not prepared to accept the quantity of allowances that the Republic of Poland had proposed in its NAP, as it considered it to be excessive. This is confirmed ex post by the fact that the Commission adopted a new decision by which it rejected the Republic of Poland’s NAP on account, in particular, of the incompatibility of the maximum number of allowances with criteria Nos 1 and 3 of Annex III to the Directive. Consequently, the General Court rightly found that a partial annulment relating only to Articles 1(1) and 2(1) of the contested decision would have altered its substance.
123.
Secondly, the General Court rightly found that Article 3(3) of the contested decision is not severable from Articles 1 and 2. There is a close link between that provision and Articles 1 and 2 of the contested decision. In fact, that provision refers to the amendments that the Commission considers to be necessary to remedy the incompatibilities established in Article 1 of that decision, but which are at variance with the proposals put forward by the Commission in Article 2 thereof.
124.
Thirdly, as to the severability of Article 3(2) of the contested decision, relating to amendments concerning allowances allocated to certain installations, it is clear that the separate maintenance of that part of the contested decision would also have altered the substance of the decision. As stated above, (
20
) a Member State can base its final decision on an NAP which has not been contested by the Commission within the context of the review provided for in Article 9(3) of the Directive. A decision in which only Article 3(2) of the contested decision had been maintained would be a decision in which the Commission had raised no objection relating to criteria Nos 1 to 3, 5, 6, 10 and 12 of Annex III to the Directive. The Republic of Poland would therefore have been able to base its final decision under Article 11(2) of the Directive on its initial NAP. However, it is clear from the contested decision and from the positions taken by the Commission before the General Court that it did not intend to adopt such a decision.
125.
The General Court did not therefore err in law by finding that Articles 1(1), 2(1) and 3(1) of the contested decision were not severable from the other provisions of that decision.
126.
The Commission’s fourth plea must accordingly be rejected as unfounded.
XI – Request to consider the other pleas in the application
127.
The Republic of Poland submitted a request to consider the other pleas in the application in the event that the Court did not dismiss the appeal in its entirety. As the appeal must be dismissed in its entirety, it is not necessary to examine that request.
XII – Conclusion
128.
In the light of the foregoing considerations, I propose that the Court of Justice should:
(1)
dismiss the appeals of the Commission and of the United Kingdom of Great Britain and Northern Ireland against the judgment of the Court of First Instance in Case T-183/07 Poland v Commission [2009] ECR II-3395;
(2)
order the Commission to pay the costs of the Republic of Poland and its own costs;
(3)
order the United Kingdom of Great Britain and Northern Ireland, the Czech Republic, Romania and the Kingdom of Denmark to pay their own costs.
(
1
)	Original language: Slovenian; language of the proceedings: Polish.
(
2
)	Case C-19/93 P Rendo and Others v Commission [1995] ECR I-3319, paragraph 13, and Case C-535/06 P Moser Baer India v Council [2009] ECR I-7051, paragraph 24.
(
3
)	Case T-194/07 Czech Republic v Commission
OJ 2007 C 199, p. 38; Case T-221/07 Hungary v Commission, OJ 2007 C 199, p. 41; Case T-368/07 Lithuania v Commission, OJ 2007 C 283, p. 35; Case T-483/07 Romania v Commission, OJ 2008 C 51, p. 56; and Case T-484/07 Romania v Commission, OJ 2008 C 51, p. 57.
(
4
)	Case C-412/05 P Alcon v OHIM [2007] ECR I-3569, paragraphs 38 to 40, and Case C-71/07 P Campoli v Commission [2008] ECR I-5887, paragraph 63.
(
5
)	See points 40 to 47 of this Opinion.
(
6
)	See p. 11 of Commission proposal COM(2001) 581 of 23 October 2001, from which it is clear that the determination of the total quantity of allowances to be allocated must essentially be left to the discretion of the Member States, who must, however, respect the criteria laid down in Annex III to the Directive, and that those criteria can subsequently be revised by the European Union’s legislature in the light of the experience gained in implementing the Directive.
(
7
)	In this context, it should be noted that the European Union’s legislature amended precisely that aspect of the Directive. Article 9 of the Directive, as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community (OJ 2009 L l40, p. 63), provides that the Community-wide quantity of allowances issued each year starting in 2013 is to decrease by a linear factor of 1.74% compared to the average annual total quantity of allowances issued by Member States in accordance with the Commission decisions on their NAPs for the period 2008 to 2012 beginning from the mid-point of the period 2008 to 2012.
(
8
)	Case C-127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I-9895, paragraphs 23 and 26.
(
9
)	Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraph 42, and Case C-265/97 P VBA v Florimex and Others [2000] ECR I-2061, paragraph 139.
(
10
)	See, in this regard, points 107 to 112 of this Opinion.
(
11
)	See points 31 to 95 of this Opinion.
(
12
)	Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 96.
(
13
)	Ibidem, paragraph 97.
(
14
)	Case C-89/08 P Commission v Ireland and Others [2009] ECR I-11245, paragraph 77.
(
15
)	Joined Cases C-172/01 P, C-175/01 P, C-176/01 P and C-180/01 P International Power and Others v Commission [2003] ECR I-11421, paragraphs 134 to 139.
(
16
)	See points 37 to 39 of this Opinion.
(
17
)	Communication COM(2006) 725 final to the Council and to the European Parliament on the assessment of national allocation plans for the allocation of greenhouse gas emission allowances in the second period of the EU Emissions Trading Scheme accompanying Commission Decisions of 29 November 2006 on the national allocation plans of Germany, Greece, Ireland, Latvia, Lithuania, Luxembourg, Malta, Slovakia, Sweden and the United Kingdom in accordance with Directive 2003/87.
(
18
)	See points 55 and 58 of this Opinion.
(
19
)	Case C-29/99 Commission v Council [2002] ECR I-11221, paragraph 45; Case C-239/01 Germany v Commission [2003] ECR I-10333, paragraph 33; and Case C-244/03 France v Parliament and Council [2005] ECR I-4021, paragraph 13.
(
20
)	Point 39 of this Opinion.