Judgment of the General Court (Fifth Chamber) of 26 September 2014 — Raffinerie Heide v Commission

(Case T‑631/13)

‛Environment — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — Transitional rules for harmonised free allocation of emission allowances from 2013 — Decision 2011/278/EU — National implementation measures presented by Germany — Clause relating to extremely difficult cases — 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 — No discretion of the Commission — 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 Decisions 2011/278, Arts 10 and 15(3), and 2013/448) (see paras 38-44, 46)

3. EU law — Principles — Force majeure — Concept — Circumstances outside the control of the person invoking it, being unusual and unforeseeable, with inevitable consequences, despite all care taken — Undertaking made subject to the system of greenhouse gas emission quota trading — Risk of insolvency — No force majeure (European Parliament and Council Directive 2003/87; Commission Decision 2013/448) (see para. 45)

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 — Commission decision refusing allocation of quotas on the basis of a clause concerning cases of excessive difficulty — No infringement of the fundamental rights of the operator concerned (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 56-71)

5. 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 — Necessity of the allocation rules — Assessment — Breach of principle of proportionality — None (European Parliament and Council Directive 2003/87, Arts 10a and 11; Commission Decision 2011/278) (see paras 72-77, 79-83, 87-92)

Re:

APPLICATION for annulment 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 Article 1(1) thereof, read in conjunction with Annex I, Point A thereto, rejects the inscription of the installation with the identification code DE000000000000010 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 to be allocated for free to that installation.

Operative part

The Court:

1. Dismisses the action;

2. Orders Raffinerie Heide GmbH to pay the costs.

Judgment of the General Court (Fifth Chamber) of 26 September 2014 — Raffinerie Heide v Commission

(Case T‑631/13)

‛Environment — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — Transitional rules for harmonised free allocation of emission allowances from 2013 — Decision 2011/278/EU — National implementation measures presented by Germany — Clause relating to extremely difficult cases — 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 — No discretion of the Commission — 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 Decisions 2011/278, Arts 10 and 15(3), and 2013/448) (see paras 38-44, 46)

3. EU law — Principles — Force majeure — Concept — Circumstances outside the control of the person invoking it, being unusual and unforeseeable, with inevitable consequences, despite all care taken — Undertaking made subject to the system of greenhouse gas emission quota trading — Risk of insolvency — No force majeure (European Parliament and Council Directive 2003/87; Commission Decision 2013/448) (see para. 45)

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 — Commission decision refusing allocation of quotas on the basis of a clause concerning cases of excessive difficulty — No infringement of the fundamental rights of the operator concerned (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 56-71)

5. 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 — Necessity of the allocation rules — Assessment — Breach of principle of proportionality — None (European Parliament and Council Directive 2003/87, Arts 10a and 11; Commission Decision 2011/278) (see paras 72-77, 79-83, 87-92)

Re:

APPLICATION for annulment 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 Article 1(1) thereof, read in conjunction with Annex I, Point A thereto, rejects the inscription of the installation with the identification code DE000000000000010 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 to be allocated for free to that installation.

Operative part

The Court:

1. Dismisses the action;