Judgment of the General Court (Fifth Chamber) of 26 September 2014 — Arctic Paper Mochenwangen v Commission

(Case T‑634/13)

‛Environment — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — Transitional rules concerning the harmonised allocation of emission allowances free of charge as from 2013 — Decision 2011/278/EU — National implementation measures submitted by Germany — Clause on cases with undue hardship — 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 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 — Discretion of the Commission — None — 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. 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 54-69)

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 70-73, 76-80, 84-89)

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 Directive 2003/87, Arts 10a and 11; Commission Decision 2011/278) (see paras 94-100)

6. 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 — Infringement of the right to be heard in case of refusal of entry on the list of installations eligible for free quotas — None (Charter of Fundamental Rights of the European Union, Art. 41(2)(a); European Parliament and Council Directive 2003/87, Art. 11) (see paras 102-105)

Re:

APPLICATION to annul 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 it rejects the inscription of the installation with identification code DE000000000000563 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 allocated free of charge to that installation.

Operative part

The Court:

1. Dismisses the action;

2. Orders Arctic Paper Mochenwangen GmbH to pay the costs.

Judgment of the General Court (Fifth Chamber) of 26 September 2014 — Arctic Paper Mochenwangen v Commission

(Case T‑634/13)

‛Environment — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — Transitional rules concerning the harmonised allocation of emission allowances free of charge as from 2013 — Decision 2011/278/EU — National implementation measures submitted by Germany — Clause on cases with undue hardship — 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 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 — Discretion of the Commission — None — 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. 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 54-69)

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 70-73, 76-80, 84-89)

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 Directive 2003/87, Arts 10a and 11; Commission Decision 2011/278) (see paras 94-100)

6. 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 — Infringement of the right to be heard in case of refusal of entry on the list of installations eligible for free quotas — None (Charter of Fundamental Rights of the European Union, Art. 41(2)(a); European Parliament and Council Directive 2003/87, Art. 11) (see paras 102-105)

Re:

APPLICATION to annul 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 it rejects the inscription of the installation with identification code DE000000000000563 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 allocated free of charge to that installation.

Operative part

The Court:

1. Dismisses the action;