7

The facts behind the dispute and the contested decision are set out in paragraphs 9 to 15 of the judgment under appeal as follows: ‘9 By letter of 30 June 2006, the Republic of Poland notified the Commission of the European Communities, in accordance with Article 9(1) of Directive [2003/87], of its national allocation plan for the period from 2008 to 2012 (“the [Polish] NAP”). According to the [Polish] NAP, the Republic of Poland intended to allocate to its national industry covered by [that] Directive an average annual total of 284.648332 million tonnes-equivalent of carbon dioxide (“CO2”). 10 The [Polish] NAP was accompanied by a letter to the Commission dated 29 June 2006, from the Polish Environment Minister, indicating that “the tables containing the earlier data and the emissions forecasts referred to in Annex 10 of the guidelines mentioned above, will be sent to the Commission as soon as the updated indispensable data are received” and that “[t]he definitive version of the list naming operators of installations and the figures for the allowances which will be allocated to them will be sent to the Commission after adoption by the Council of Ministers”. 11 By letter to the Republic of Poland of 30 August 2006, the Commission stated that, after a first examination of the [Polish] NAP, the latter was incomplete, and that, at that stage, it was not compatible with criteria Nos 2 and 5 of Annex III to Directive [2003/87]. It therefore invited the Republic of Poland to reply within 10 working days to a series of questions and requests for additional information. The Commission added that it would be able to take a position on the NAP not later than three months after receipt of full information. 12 By letter of 30 October 2006, the Deputy State Secretary at the Polish Environment Ministry asked the Commission to extend the time for replying to the letter of 30 August 2006 until the end of the third week of November 2006, stating, inter alia, that that additional time would enable him to prepare exact information and to explain essential aspects, thus enabling the Commission to make a correct and truly complete assessment of the document submitted. 13 The Republic of Poland replied to the letter of 30 August 2006 by a letter of 29 December 2006. By letter of 9 January 2007, it sent further information. 14 On 26 March 2007, pursuant to Article 9(3) of Directive [2003/87], the Commission adopted [the contested decision]. In [that] decision …, the Commission concluded, essentially, that several criteria in Annex III of [that] Directive had been infringed, and thus reduced the total annual quantity of emission allowances in the NAP by 76.132937 million tonnes of CO2 equivalent, fixing the ceiling at 208.515395 million tonnes of CO2 equivalent. 15 The operative part of the [contested] decision reads: “Article 1 The following aspects of the [Polish NAP] for the first five-year period mentioned in Article 11(2) of the Directive are incompatible respectively with: 1. criteria [Nos] 1 [to] 3 of Annex III to Directive [2003/87]: the part of the intended total quantity of allowances, amounting to the sum of 76.132937 million tonnes of CO2 equivalent per year and the adjustment resulting from any lowering of the number of installations covered and one fifth of the total number of allowances [the Republic of] Poland decides to issue pursuant to Article 13(2) of the Directive, that is not consistent with assessments made pursuant to 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)] and not consistent with the potential, including the technological potential, of activities to reduce emissions; this part being reduced in respect of emissions of project activities which were already operational in 2005 and resulted in 2005 in emission reductions or limitations in installations falling under the scope of Directive [2003/87] to the extent that the resulting emission reductions or limitations due to these project activities have been substantiated and verified; in addition, the part of the total quantity potentially amounting to 6.2884 million tonnes of allowances in respect of additional emissions of combustion installations annually to the extent that this is not justified in accordance with the general methodologies stated in the [Polish NAP] and on the basis of substantiated and verified emission figures and does not exclusively relate to the expansion element of the installations concerned; 2. criterion [No] 5 of Annex III to Directive [2003/87]: the allocations to certain installations going beyond their expected needs as a result of the application of bonuses for early action, biomass or co-generation; 3. criterion [No] 6 of Annex III to Directive [2003/87]: the information on the manner in which new entrants will be able to begin participating in the Community scheme; 4. criterion [No] 10 of Annex III to Directive [2003/87]: the intention of [the Republic of] Poland to transfer allowances from an installation in the coking industry to a power generator in the event of the sale of coke oven gas by the former to the latter; 5. criterion [No] 12 of Annex III to Directive [2003/87]: the maximum overall amount of CERs and ERUs of 25% which may be used by operators in the Community scheme as a percentage of the allocation of the allowances to each installation that is inconsistent with [the Republic of] Poland’s supplementary obligations under the Kyoto Protocol and decisions adopted pursuant to the [United Nations Framework Convention on Climate Change adopted at New York on 9 May 1992] or the Kyoto Protocol, to the extent that it exceeds 10%. Article 2 No objections shall be raised to the [Polish NAP], provided that the following amendments to the national allocation plan are made in a non-discriminatory manner and notified to the Commission as soon as possible, taking into account the time-scale necessary to carry out the national procedures without undue delay: 1. the total quantity to be allocated for the Community scheme is reduced by the sum of 76.132937 million tonnes CO2 equivalent of allowances per year and the adjustment resulting from any lowering of the number of installations covered and one fifth of the total number of allowances [the Republic of] Poland decides to issue pursuant to Article 13(2) of the Directive; and the quantities allocated to additional combustion installations are determined in accordance with the general methodologies stated in the [Polish NAP] and on the basis of substantiated and verified emission figures and exclusively relate to the expansion element of the installations concerned, with the total quantity being further reduced by any difference between the allocations to these installations and the 6.2884 million tonnes set aside annually for these installations; and the total quantity being increased in respect of emissions of project activities which were already operational in 2005 and resulted in 2005 in emission reductions or limitations in installations falling under the scope of the Directive to the extent that the resulting emission reductions or limitations due to these project activities have been substantiated and verified; 2. the allocations to installations do not go beyond their expected needs as a result of the application of bonuses for early action, biomass or co-generation; 3. information is provided on the manner in which new entrants will be able to begin participating in the Community scheme, in a way that complies with the criteria of Annex III to [Directive 2003/87] and Article 10 thereof; 4. the quantity of allowances allocated to an installation that is listed in the [Polish NAP] and operating in its territory is not subject to adjustments as a result of the closure of other installations within that territory; 5. the overall 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 is reduced to no more than 10%. Article 3 1. The total average annual quantity of allowances of 208.515395 million tonnes, reduced by the sum of the adjustment resulting from any lowering of the number of installations covered and one-fifth of the total number of allowances [the Republic of] Poland decides to issue pursuant to Article 13(2) of Directive [2003/87], and further reduced by any difference between the allocations to additional combustion installations and the 6.2884 million tonnes set aside annually for these installations, and increased in respect of emissions of project activities which were already operational in 2005 and resulted in 2005 in emission reductions or limitations in installations falling under the scope of Directive [2003/87], to the extent that the resulting emission reductions or limitations due to these project activities have been substantiated and verified and exclusively relate to the expansion element of the installations concerned, to be allocated by [the Republic of] Poland according to its [Polish NAP] to installations listed therein and to new entrants shall not be exceeded. 2. The [Polish NAP] may be amended without prior acceptance by the Commission if the amendment consists in modifications of the allocation of allowances to individual installations within the total quantity to be allocated to installations listed therein resulting from improvements to data quality or to change the share of the allocation of allowances free of charge in a non-discriminatory manner within the limits set in Article 10 of Directive [2003/87]. 3. Any amendments of the [Polish NAP] made to correct the incompatibilities indicated in Article 1 of this Decision but deviating from those referred to in Article 2 must be notified as soon as possible, taking into account the time-scale necessary to carry out the national procedures without undue delay, and require prior acceptance by the Commission pursuant to Article 9(3) of Directive [2003/87]. Any other amendments of the [Polish NAP], apart from those made to comply with Article 2 of this Decision, are inadmissible. Article 4 This Decision is addressed to the Republic of Poland.”’