Judgment of the General Court (Fifth Chamber) of 26 September 2014 — Molda v Commission

(Case T‑629/13)

‛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 a professional activity and 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 27-35)

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 39-45)

3. EU law — Principles — Force majeure — Concept — Circumstances outside the control of the person invoking it, being unusual and unforeseeable, with inevitable consequences, despite all care taken — Undertaking made subject to the system of greenhouse gas emission quota trading — Risk of insolvency — No force majeure (European Parliament and Council Decision 2003/87; Commission Decision 2013/448) (see paras 46, 47)

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 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 56-71)

5. 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 72-75, 78-82, 86-90)

6. 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 breach of the principle of subsidiarity (European Parliament and Council Directive 2003/87, Arts 10a and 11; Commission Decision 2011/278) (see paras 94-96, 99-104)

7. 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 — Member States unable to hold quotas — No public control in the context of national implementing measures — Free allocation of quotas on the basis of a national clause concerning extremely difficult cases — Classification as State aid — Irrelevant to compatibility with the quota allocation system (Art. 107(1) TFEU; European Parliament and Council Directive 2003/87, Arts 9, second para., 10a, and 11(3); Commission Decision 2011/278) (see paras 106-109)

Re:

APPLICATION for annulment 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 rejects granting the applicant the supplementary quotas requested for the third trading period of the 2013 to 2020 emissions trading on the basis of the hardship clause under Paragraph 9(5) of the Treibhausgas-Emissionshandelsgesetz (German Law on Greenhouse Gas Emissions Trading) of 21 July 2011.

Operative part

The Court:

1. Dismisses the action;

2. Orders Molda AG to pay the costs.

Judgment of the General Court (Fifth Chamber) of 26 September 2014 — Molda v Commission

(Case T‑629/13)

‛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 a professional activity and 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 27-35)

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 39-45)

3. EU law — Principles — Force majeure — Concept — Circumstances outside the control of the person invoking it, being unusual and unforeseeable, with inevitable consequences, despite all care taken — Undertaking made subject to the system of greenhouse gas emission quota trading — Risk of insolvency — No force majeure (European Parliament and Council Decision 2003/87; Commission Decision 2013/448) (see paras 46, 47)

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 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 56-71)

5. 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 72-75, 78-82, 86-90)

6. 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 breach of the principle of subsidiarity (European Parliament and Council Directive 2003/87, Arts 10a and 11; Commission Decision 2011/278) (see paras 94-96, 99-104)

7. 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 — Member States unable to hold quotas — No public control in the context of national implementing measures — Free allocation of quotas on the basis of a national clause concerning extremely difficult cases — Classification as State aid — Irrelevant to compatibility with the quota allocation system (Art. 107(1) TFEU; European Parliament and Council Directive 2003/87, Arts 9, second para., 10a, and 11(3); Commission Decision 2011/278) (see paras 106-109)

Re:

APPLICATION for annulment 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 rejects granting the applicant the supplementary quotas requested for the third trading period of the 2013 to 2020 emissions trading on the basis of the hardship clause under Paragraph 9(5) of the Treibhausgas-Emissionshandelsgesetz (German Law on Greenhouse Gas Emissions Trading) of 21 July 2011.

Operative part

The Court:

1. Dismisses the action;