Judgment of the General Court (Fifth Chamber) of 26 September 2014 — DK Recycling und Roheisen v Commission

(Case T‑630/13)

‛Environment — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — Transitional rules for harmonised free allocation of emission allowances from 2013 — Decision 2011/278/EU — National implementation measures presented by Germany — Clause relating to extremely difficult cases — Freedom to conduct a business — Right to property — Proportionality’

1. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Whether directly concerned — Commission decision addressed to the Member States concerning free allocation of greenhouse gas emission allowances — Final determination of all factors to be taken into account for national implementation measures — Purely automatic implementation — No discretion of the Member States (Art. 263, fourth para., TFEU; European Parliament and Council Directive 2003/87, Art. 11; Commission Decision 2013/448) (see paras 28-36)

2. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Transitional regime for free allocation of quotas — Exhaustive character of the harmonised allocation rules — No discretion of the Commission — Commission decision refusing allocation of quotas on the basis of a clause concerning cases of excessive difficulty — No infringement of the principle of proportionality and fundamental rights (European Parliament and Council Directive 2003/87, Arts 10a and 11; Commission Decisions 2011/278, Arts 10 and 15(3), and 2013/448) (see paras 40-46)

3. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Transitional regime for free allocation of quotas — No clause concerning cases of excessive difficulty — No infringement of fundamental rights (Charter of Fundamental Rights of the European Union, Arts 15 to 17; European Parliament and Council Directive 2003/87, Arts 10a and 11; Commission Decision 2011/278) (see paras 55-70)

4. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Transitional regime for free allocation of quotas — No clause concerning cases of excessive difficulty — No breach of principle of proportionality (European Parliament and Council Directive 2003/87, Arts 10a and 11; Commission Decision 2011/278) (see paras 71-74, 77-81, 85-90)

5. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Transitional regime for free allocation of quotas — Exhaustive character of the harmonised allocation rules — Allocation on the basis of a national rule going beyond the harmonised rules — Not compatible — Commission decision refusing allocation of quotas on the basis of a clause concerning cases of excessive difficulty — No disregard by the Commission of the harmonised allocation rules (European Parliament and Council Regulation No 2003/87, Arts 10a and 11; Commission Decision 2011/278) (see paras 95-100)

6. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Transitional regime for free allocation of quotas — Obligation on Member States to ensure no double counting between sub-installations — Allocation of free emission quotas for a sub-installation on the basis of the product reference system for liquid cast iron — Allocation of free quotas for emissions of the same sub-installation based on process emissions for the production of zinc concentrate — Production of zinc concentrate linked to an additional energy need — No overlap between the various products concerned — No double counting — Commission decision rejecting allocation of free quotas based on process emissions — Annulment (European Parliament and Council Directive 2003/87, Art. 10a(1), fourth para.; Commission Decision 2011/278, Art. 10(8), and Annex I, point 1) (see paras 107-110)

7. Acts of the institutions — Statement of reasons — Obligation — Scope — Correction of an error of reasoning during the proceedings before the Court — Not permissible (Art. 296 TFEU) (see paras 111, 112)

8. EU law — Principles — Rights of defence — Right to be heard — Scope — Free allocation of greenhouse gas emission quotas — Supervision by the Commission — No opportunity for the operators of the installations concerned to express their point of view — No infringement of the right to be heard in case of refusal of entry on the list of installations eligible for free quotas (Charter of Fundamental Rights of the European Union, Art. 41(2)(a); European Parliament and Council Directive 2003/87, Art. 11) (see paras 114-117)

Re:

APPLICATION for annulment of Article 1(1) of Commission Decision 2013/448/EU of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2013 L 240, p. 27) in so far as Article 1(1) thereof, read in conjunction with Annex I, Point A thereto, rejects the inscription of the installation with the identification codes DE000000000001320 and DE-new-14220-0045 on the list of installations provided for in Article 11(1) of 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), and the preliminary total annual amounts of emission allowances to be allocated for free to those installations.

Operative part

The Court:

1. Annuls Article 1(1) of Commission Decision 2013/448/EU of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council in so far as it rejects the free allocation of emission allowances for the installations listed in Annex I, Point D to that decision on the basis of a process emissions sub-installation for the production of zinc in the blast furnace and related processes;

2. Dismisses the remainder of the action;

3. Orders each party to bear its own costs.

Judgment of the General Court (Fifth Chamber) of 26 September 2014 — DK Recycling und Roheisen v Commission

(Case T‑630/13)

‛Environment — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — Transitional rules for harmonised free allocation of emission allowances from 2013 — Decision 2011/278/EU — National implementation measures presented by Germany — Clause relating to extremely difficult cases — Freedom to conduct a business — Right to property — Proportionality’

1. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Whether directly concerned — Commission decision addressed to the Member States concerning free allocation of greenhouse gas emission allowances — Final determination of all factors to be taken into account for national implementation measures — Purely automatic implementation — No discretion of the Member States (Art. 263, fourth para., TFEU; European Parliament and Council Directive 2003/87, Art. 11; Commission Decision 2013/448) (see paras 28-36)

2. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Transitional regime for free allocation of quotas — Exhaustive character of the harmonised allocation rules — No discretion of the Commission — Commission decision refusing allocation of quotas on the basis of a clause concerning cases of excessive difficulty — No infringement of the principle of proportionality and fundamental rights (European Parliament and Council Directive 2003/87, Arts 10a and 11; Commission Decisions 2011/278, Arts 10 and 15(3), and 2013/448) (see paras 40-46)

3. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Transitional regime for free allocation of quotas — No clause concerning cases of excessive difficulty — No infringement of fundamental rights (Charter of Fundamental Rights of the European Union, Arts 15 to 17; European Parliament and Council Directive 2003/87, Arts 10a and 11; Commission Decision 2011/278) (see paras 55-70)

4. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Transitional regime for free allocation of quotas — No clause concerning cases of excessive difficulty — No breach of principle of proportionality (European Parliament and Council Directive 2003/87, Arts 10a and 11; Commission Decision 2011/278) (see paras 71-74, 77-81, 85-90)

5. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Transitional regime for free allocation of quotas — Exhaustive character of the harmonised allocation rules — Allocation on the basis of a national rule going beyond the harmonised rules — Not compatible — Commission decision refusing allocation of quotas on the basis of a clause concerning cases of excessive difficulty — No disregard by the Commission of the harmonised allocation rules (European Parliament and Council Regulation No 2003/87, Arts 10a and 11; Commission Decision 2011/278) (see paras 95-100)

6. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Transitional regime for free allocation of quotas — Obligation on Member States to ensure no double counting between sub-installations — Allocation of free emission quotas for a sub-installation on the basis of the product reference system for liquid cast iron — Allocation of free quotas for emissions of the same sub-installation based on process emissions for the production of zinc concentrate — Production of zinc concentrate linked to an additional energy need — No overlap between the various products concerned — No double counting — Commission decision rejecting allocation of free quotas based on process emissions — Annulment (European Parliament and Council Directive 2003/87, Art. 10a(1), fourth para.; Commission Decision 2011/278, Art. 10(8), and Annex I, point 1) (see paras 107-110)

7. Acts of the institutions — Statement of reasons — Obligation — Scope — Correction of an error of reasoning during the proceedings before the Court — Not permissible (Art. 296 TFEU) (see paras 111, 112)

8. EU law — Principles — Rights of defence — Right to be heard — Scope — Free allocation of greenhouse gas emission quotas — Supervision by the Commission — No opportunity for the operators of the installations concerned to express their point of view — No infringement of the right to be heard in case of refusal of entry on the list of installations eligible for free quotas (Charter of Fundamental Rights of the European Union, Art. 41(2)(a); European Parliament and Council Directive 2003/87, Art. 11) (see paras 114-117)

Re:

APPLICATION for annulment of Article 1(1) of Commission Decision 2013/448/EU of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2013 L 240, p. 27) in so far as Article 1(1) thereof, read in conjunction with Annex I, Point A thereto, rejects the inscription of the installation with the identification codes DE000000000001320 and DE-new-14220-0045 on the list of installations provided for in Article 11(1) of 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), and the preliminary total annual amounts of emission allowances to be allocated for free to those installations.

Operative part

The Court:

1. Annuls Article 1(1) of Commission Decision 2013/448/EU of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council in so far as it rejects the free allocation of emission allowances for the installations listed in Annex I, Point D to that decision on the basis of a process emissions sub-installation for the production of zinc in the blast furnace and related processes;

2. Dismisses the remainder of the action;