EN Official Journal of the European Union C 51/18

Appeal brought on 4 December 2009 by the European Commission against the judgment delivered by the Court of First Instance on 23 September 2009 in Case T-183/07 Poland v Commission

(Case C-504/09 P)

2010/C 51/29

Language of the case: Polish

Parties

Appellant: European Commission (represented by: E. Kružíková, E. White and K. Herrmann, Agents)

Other parties to the proceedings: United Kingdom of Great Britain and Northern Ireland, Republic of Poland, Republic of Hungary, Republic of Lithuania and Slovak Republic

Form of order sought

— set aside in its entirety the judgment of the Court of First Instance of 23 September 2009 in Case T-183/07;

— order the Republic of Poland to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the form of order which it seeks, the appellant puts forward four pleas in law. First, it submits that the General Court exceeded the limits of its powers of judicial review and committed procedural infringements in a manner which impacted adversely on the Commission’s interests. Second, it contends that there was a breach of Article 9(3) 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. (1) Third, the appellant submits that there was a misinterpretation of the scope of the obligation to give reasons for a decision laid down in Article 296 TFEU. Fourth, it pleads an error in law in so far as the General Court held that Articles 1(1), 2(1) and 3(1) were not severable from the other provisions of the contested decision and as a consequence ruled that that decision was invalid in its entirety.

In the context of the first plea, the appellant submits that the General Court held to be admissible the claim that the Commission had exceeded its powers, which claim was raised by the applicant only at the stage of the reply, contrary to Article 48(2) of the Rules of Procedure. Furthermore, in itself determining to which provisions of Community law the second head of claim related, the General Court exceeded the limits of its judicial review.

In the context of the second plea, the appellant submits that the General Court erred in law in its interpretation of the scope and manner of exercise of the rights conferred on the Commission by Article 9(3) of Directive 2003/87/EC. That plea is divided into two parts.

In the first part of this plea, the appellant argues that, by finding that the Commission was not entitled, in its examination of the notified National Allocation Plans II (NAP II) pursuant to the criteria set out in Annex III to Directive 2003/87/EC, to base itself on verified data on CO2 resulting from one single source (Community Independent Transaction Log) (CITL) for all Member States for the same period (2005), and by finding that the Commission was not entitled to base its decision on GDP forecasts for the period 2005-2010 published in that same period for all Member States, the General Court misinterpreted Article 9(3) of Directive 2003/87/EC and infringed the principle of equal treatment.

In the context of the second part of that plea in law, the appellant submits that, by denying to the Commission the right to disregard data used by certain Member States when carrying out its appraisal of a NAP II, and by denying the Commission the right to refer, in its decision rejecting a NAP II adopted on the basis of Article 9(3) of Directive 2003/87/EC, to the upper limit of the total quantity of allowances which a Member State may allocate, the General Court misinterpreted Article 9(3) of Directive 2003/87/EC by reason of its failure to have regard for its objective and subject-matter.

In the view of the appellant, the prior NAP II appraisal on the basis of Article 9(3) of Directive 2003/87/EC is intended to make possible the achievement of its objective, that is to say, promoting a reduction in greenhouse gases in a manner which is cost-effective and economically viable and ensuring the correct functioning of the Community system of allowance trading. Inasmuch as the right to issue a decision rejecting a NAP II is limited in time, the manner in which the Commission exercises its monitoring rights on the basis of the first sentence of Article 9(3) of Directive 2003/87/EC has to be construed having regard for the purpose of the appraisal procedure in its entirety, that is to say, the assurance that only a NAP II which complies with the criteria in Annex III, in particular with those laid down in points 1 to 3 thereof, may become definitive and constitute the basis on which Member States may adopt their decisions on the total amounts of allowances for distribution.

In the context of the third plea, the appellant argues that, by holding that the Commission ought to have clarified, in the contested decision, why the data used in the Republic of Poland’s NAP II were ‘less reliable’, the General Court failed to have regard for the entire reasoning contained in recital 5 in the preamble to the contested decision and, in any event, construed too widely the scope of the obligation to provide reasons laid down in Article 296 TFEU.

In the context of the fourth plea, the appellant submits that the General Court incorrectly applied the condition governing severability of the provisions of the contested decision when it stated that paragraphs 2 to 5 of Articles 1 and 2 thereof, referring to the incompatibility of the NAP II with criteria of Annex III to the Directive other than the criteria in paragraph 1 of each of those articles, were not severable from those articles. The General Court’s erroneous analysis, it is submitted, led to the finding that the contested decision was invalid in its entirety.

(1) OJ 2003 L 275, p. 32.