Case T-183/07 
Republic of Poland 
v 
Commission of the European Communities 
(Environment — Directive 2003/87/EC — Emissions trading system for greenhouse gas 
allowances — National allocation plan for emission allowances for Poland for the
period from 2008 to 2012 — Three month time-limit — Respective powers of the 
Member States and the Commission — Equal treatment — Duty to state reasons — 
Article 9(1) and (3) and Article 11(2) of Directive 2003/87) 
Judgment of the Court of First Instance (Second Chamber), 23 September 
2009 . . . . . . . . . . . . . . . . . . . . . . . . . . II - 3401 
Summary of the Judgment 
1. Environment — Atmospheric pollution — Directive 2003/87 — National allocation plan for 
the allocation of greenhouse gas emission allowances (NAP)  
(European Parliament and Council Directive 2003/87, Art. 9(3))  
II - 3395 
SUMMARY — CASE T-183/07 
2.  Environment — Atmospheric pollution — Directive 2003/87 — National allocation plan for 
the allocation of greenhouse gas emission allowances (NAP) 
(European Parliament and Council Directive 2003/87, Art. 9(3)) 
3.  Environment — Atmospheric pollution — Directive 2003/87 — National allocation plan for 
the allocation of greenhouse gas emission allowances (NAP) 
(European Parliament and Council Directive 2003/87, Art. 9(3)) 
4.  Environment — Atmospheric pollution — Directive 2003/87 — National allocation plan for 
the allocation of greenhouse gas emission allowances (NAP) 
(European Parliament and Council Directive 2003/87, Arts 9(1) and (3), and 11(2)) 
5.  Environment — Atmospheric pollution — Directive 2003/87 — National allocation plan for 
the allocation of greenhouse gas emission allowances (NAP) 
(European Parliament and Council Directive 2003/87) 
6.  Environment — Atmospheric pollution — Directive 2003/87 — National allocation plan for 
the allocation of greenhouse gas emission allowances (NAP) 
(European Parliament and Council Directive 2003/87, Art. 9(3)) 
7.  Environment — Atmospheric pollution — Directive 2003/87 — National allocation plan for 
the allocation of greenhouse gas emission allowances (NAP) 
(European Parliament and Council Directive 2003/87, Arts 9(3) and 11(2)) 
8.  Environment — Atmospheric pollution — Directive 2003/87 — National allocation plan for 
the allocation of greenhouse gas emission allowances (NAP) 
(European Parliament and Council Directive 2003/87, Arts 9, 10 and 11(2) and (3)) 
II - 3396 
POLAND v COMMISSION 
1.  The Commission ’s power to consider and
reject a national allocation plan for green -
house gas emission allowances (NAP),
notified by a Member State, in accordance
with Article 9(3) of Directive 2003/87,
establishing a scheme for greenhouse gas
emission allowance trading within the 
Community, is severely limited, both in
substantive terms and in time. First, the 
Commission ’s review is limited to consid -
ering whether the NAP is compatible with
the criteria laid down in Annex III to the 
directive and the provisions of Article 10
thereof and, second, the review must be 
carried out within three months of the date 
on which the Member State notified the 
NAP. 
As regards the limits in time, Article 9(3) of
the directive makes provision for only one
three-month period during which the 
Commission must state its position on 
the NAP. There is no reason to suppose
that, where an incomplete NAP is notified,
the three-month period which the 
Commission has to reject an NAP cannot
start to run. A Member State cannot, by
notifying an incomplete NAP, indefinitely
postpone the Commission ’s taking a deci -
sion pursuant to Article 9(3) of the 
directive. 
(see paras 35, 36) 
2.  In the absence of a general power of 
authorisation stricto sensu on the part of
the Commission in relation to a national allocation plan for greenhouse gas emis -
sion allowances (NAP) notified, the 
absence of objections on its part at the
expiry of the three-month period, in 
accordance with Article 9(3) of Dir -
ective 2003/87, establishing a scheme for
greenhouse gas emission allowance 
trading within the Community, cannot 
form the basis of any presumption of 
authorisation of the NAP. 
Indeed, a prior review under Article 9(3)
does not necessarily lead to an authorising
decision. The Commission may not inter -
vene except in so far as it considers it 
necessary to raise objections to certain 
aspects of the NAP as notified and, if the
Member State refuses to amend its NAP, to 
adopt a decision rejecting the plan. If that
does not happen, the NAP as notified 
becomes definitive and enjoys a presump -
tion of legality which permits the Member
State to put it into effect. 
(see paras 41, 42) 
3.  The Commission may intervene before the
expiry of the three-month period, in 
accordance with Article 9(3) of Dir -
ective 2003/87, establishing a scheme for
greenhouse gas emission allowance 
trading within the Community, not only,
initially, by raising objections or putting
questions with regard to certain aspects of
the national allocation plan for greenhouse
gas emission allowances (NAP) notified, 
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SUMMARY — CASE T-183/07 
but also, subsequently, in the event of 
refusal by the Member State to amend its
NAP, by adopting a decision to reject the
NAP notified. Where the adoption of a
rejection decision has the effect of inter -
rupting the running of the three-month
period, where the Commission raises 
objections or puts questions concerning
certain aspects of the NAP notified, the
three-month period is suspended. 
(see para. 43) 
4.  Directive 2003/87, establishing a scheme
for greenhouse gas emission allowance 
trading within the Community, for the 
purposes of implementing that system, 
determines clearly and explicitly, in 
Article 9(1) and (3) and in Article 11(2),
the allocation of powers between the 
Member States and the Commission for 
the drawing-up, review and implementa -
tion of national allocation plans for green -
house gas emission allowances (NAPs). 
Regarding the powers of the Member 
States, it follows unequivocally from the
said provisions that only Member States
have the power, at the initial stage, to draw
up an NAP stating the total quantity of
allowances which they propose to allocate
for the period concerned and the manner
in which they propose to allocate them,
and, subsequently, to decide the total 
quantity of allowances which they will 
allocate for each five-year period and to
launch the process for individually allo -cating those allowances. It is true that, by
virtue of the second sentence of Article 9(1)
of that directive, the exercise of those 
exclusive powers of the Member States 
must be based on objective and trans -
parent criteria such as those listed in 
Annex III to that directive. Similarly, in
accordance with the second sentence of 
Article 9(3) of the directive, where the 
Commission decides to reject an NAP in
whole or in part, the Member State does
not take a decision under Article 11(2) of
that directive unless the amendments 
which it proposes have been accepted by
the Commission. 
However, Directive 2003/87 does not 
prescribe clearly and precisely the form
and means for achieving the result which it
fixes. Moreover, Member States thus have 
a certain margin for manoeuvre in trans -
posing that directive, and, therefore, in 
choosing the measures which they
consider most appropriate to achieve, in
the specific context of the national energy
market, the objective laid down by that
directive. 
(see paras 84-88) 
5.  In the context of the implementation of the
scheme for greenhouse gas emission 
allowance trading within the Community,
established by Directive 2003/87, to allow
the Commission to use a single method of
assessing national allocation plans for the 
II - 3398 
POLAND v COMMISSION 
allocation of greenhouse gas emission 
allowances (NAPs) for all the Member 
States would amount to acknowledging it
as having not only a veritable power of
uniformisation in the context of imple -
menting the allowance trading system, but
also a central role in the drawing-up of
NAPs. Neither such a power of uniformi -
sation nor such a central role were 
conferred on the Commission by the 
legislature in the directive, in the context
of its power of reviewing NAPs. 
In that respect, the application of the 
principle of equal treatment between the
Member States cannot have the effect of 
modifying the allocation of powers 
between the Member States and the 
Commission, as provided for by Dir -
ective 2003/87, in accordance with the 
principle of subsidiarity which is deemed
to have been complied with for the 
adoption of the latter. 
(see paras 104, 106) 
6.  A decision concerning a national alloca -
tion plan for the allocation of greenhouse
gas emission allowances (NAP), adopted
by the Commission pursuant to Article 9(3)
of Directive 2003/87, establishing a scheme
for greenhouse gas emission allowance 
trading within the Community, finding
infringement of several criteria in Annex
III of that directive, in circumstances 
where the Commission limited itself to substituting its own data for those 
contained in the NAP, without in any way
reviewing the compatibility of the latter
with the criteria set out in the directive 
does not comply with the allocation of 
powers between the Member States and
the Commission as defined by the dir -
ective. 
The method of reviewing NAPs used by the
Commission, consisting of comparing the
data in the NAP with the data obtained 
from its own assessment method, 
amounts, in practice, to allowing the 
Commission itself to draw up its own 
reference NAP in a totally autonomous 
manner, and to assess the compatibility of
the notified NAPs not having regard to the
criteria set out in the directive but, first and 
foremost, having regard to the data and
results obtained from its own method. 
(see paras 107, 108, 110) 
7.  Public consultation, as provided for in 
Article 11(2) of Directive 2003/87, estab -
lishing a scheme for greenhouse gas 
emission allowance trading within the 
Community, before the adoption of a 
final decision on the basis of that same 
provision, would be rendered devoid of 
purpose and the observations of the public
would be purely theoretical if modifica -
tions of a national allocation plan for the
allocation of greenhouse gas emission 
II - 3399 
SUMMARY — CASE T-183/07 
allowances (NAP), capable of being
proposed after a decision by the Commis -
sion taken pursuant to Article 9(3) of the
said directive, were limited to those en -
visaged by the Commission. 
Member States may, without necessarily
being bound by the recommendations 
formulated by the Commission in a deci -
sion taken in accordance with the said 
Article 9(3), not only correct and update
their NAPs after such a decision, but also 
adjust them after the adoption of their 
individual allocation decision. 
Moreover, in the light both of the wording
of the directive and the general system and
objectives of the system which it estab -
lishes, the Commission is required perma -
nently to ensure that the NAPs take 
account of the most exact and thus the 
most up-to-date information possible in
order to cause the least damage to 
economic development and employment,
while at the same time maintaining an 
efficient system of greenhouse gas emis -
sion allowances. 
(see paras 116-118) 8.  By laying down, in the operative part of a
decision concerning a national allocation
plan for the allocation of greenhouse gas
emission allowances (NAP), in accordance
with Article 9(3) of Directive 2003/87,
establishing a scheme for greenhouse gas
emission allowance trading within the 
Community, a maximum level for the 
total quantity of allowances to be allocated,
above which ceiling the NAP would be 
regarded as incompatible with the dir -
ective, the Commission exceeds the 
powers conferred upon it by virtue of the
said provisions. 
In accordance with Article 11(2) and (3) of
the same directive, it is for each Member 
State, and not the Commission, to decide, 
on the basis of its NAP drawn up pursuant
to Article 9 and in accordance with 
Article 10 of the said directive, on the 
total quantity of allowances it will allocate
for the period in question, to initiate the
process of allocation of those allowances to
the operators of each installation, and to
rule on allocation of those allowances. 
(see paras 123, 126, 131) 
II - 3400