Appeal brought on 2 April 2021 by the European Commission against the judgment of the General Court (Third Chamber, Extended Composition) delivered on 27 January 2021 in Case T-699/17, Republic of Poland v European Commission

(Case C-207/21 P)

(2021/C 206/26)

Language of the case: Polish

Parties

Appellant: European Commission (represented by: R. Tricot, Ł. Habiak, K. Herrmann and C. Valero, acting as Agents)

Other parties to the proceedings: Republic of Poland, Hungary, Republic of Bulgaria, Kingdom of Belgium, Kingdom of Sweden and French Republic

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court delivered on 27 January 2021 in Case T-699/17, Republic of Poland v European Commission, in its entirety;

— reject the first plea in law raised in the Republic of Poland’s action in Case T-699/17;

— refer the case back to the General Court for further consideration as regards the second to fifth pleas in law, which were not examined at first instance; and

— reserve the decision regarding the costs of the proceedings at first instance and on appeal.

Grounds of appeal and main arguments

According to the Commission, the judgment of the General Court in Case T-699/17 should be set aside, because it contains errors of law which lead to an infringement of Article 16(4) and (5) TEU.

First, by working on the fundamental assumption, in paragraphs 40 and 41 of the judgment under appeal, that the right conferred on the Member States by Article 3(2) of Protocol No 36 to request a qualified-majority vote according to the rules set out in Article 3(3) of that Protocol (the rules according to the Treaty of Nice) is to retain its effectiveness even following the expiry of the transitional period on 31 March 2017, the General Court disregarded the clearly defined timeframe of the transitional period provided for in Article 16(5) TEU. Additionally, it disregarded the general definition of a qualified majority, added to Article 16(4) TEU by the Treaty of Lisbon and effective from 1 November 2014, which increases the democratic legitimacy of voting sessions in the Council and the Committee established by Article 75 of Directive 2010/75/EU. (1) By doing so, the General Court limited the full effectiveness of that general definition.

Second, by giving a broad interpretation, in paragraphs 48 and 50 of the judgment under appeal, of the timeframe during which the transitional provisions laid down in Article 16(5) TEU and Article 3(2) of Protocol No 36 are to apply, the General Court disregarded the settled case-law concerning the obligation to interpret transitional provisions strictly.

Third, contrary to the assertions contained in paragraphs 53, 54 and 55 of the judgment under appeal, the interpretation of Article 3(2) of Protocol No 36 given by the General Court infringed the principle of legal certainty, because it leads to the application of the Treaty of Nice definition of a qualified majority, provided for in Article 3(3) of Protocol No 36, which is unpredictable and uncertain as regards its application in time.

(1) Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (OJ 2010 L 334, p. 17).