Bundesrepublik Deutschland v Nordzucker AG.
Date: 2015-04-29
24. It should be observed that the Court may at any moment, having heard the Advocate General, order the reopening of the oral procedure under Article 83 of its Rules of Procedure if, inter alia, it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union (judgment in Commerz Nederland , C‑242/13, EU:C:2014:2224, paragraph 26).
28. The overall structure of Directive 2003/87 is based on the strict accounting of the issue, holding, transfer and cancellation of greenhouse gas emission allowances, the framework for which is provided for by Article 19 thereof and requires the establishment of a system of standardised registries by means of a separate Commission regulation. That accurate accounting is inherent in the very purpose of the directive, consisting in the establishment of a Community scheme for greenhouse gas emission allowance trading, which aims to reduce greenhouse gas emissions in the atmosphere to a level that prevents dangerous anthropogenic interference with the climate, with the ultimate objective of protection of the environment. In addition, the EU legislature wished, by itself introducing a predefined penalty, to shield the allowance trading scheme from distortions of competition resulting from market manipulations (judgment in Billerud Karlsborg and Billerud Skärblacka , C‑203/12, EU:C:2013:664, paragraph 27).
29. As the Advocate General stated in point 29 of his Opinion, one of the pillars on which the scheme established by Directive 2003/87 is built is the obligation on operators to surrender by 30 April of the current year, in order to have them cancelled, a number of greenhouse gas emission allowances equal to their emissions during the preceding calendar year.
30. That obligation must be applied particularly strictly. Stated as a mandatory element of the greenhouse gas emissions permit by Article 6(2)(e) of Directive 2003/87, and worded unambiguously in Article 12(3) of that directive, that obligation is the only one to which Directive 2003/87 itself attaches, under Article 16(3) thereof, a specific penalty, whereas the penalty for any other conduct contrary to its provisions is, under Article 16(1) thereof, left to the discretion of the Member States (see, to that effect, judgment in Billerud Karlsborg and Billerud Skärblacka , C‑203/12, EU:C:2013:664, paragraph 25).
31. As follows from Article 14(3) of Directive 2003/87, that obligation to surrender is based on the reports that the operators of an installation draw up, following the rules set out in the guidelines. In accordance with the requirement for strict accounting of the allowances issued, and pursuant to Articles 6(2)(e) and 12(3) of that directive, those reports, before being submitted to the competent national authorities, are subject to a verification process provided for in, inter alia, Article 15 of that directive.
37. In that regard, it follows from the provisions of Directive 2003/87 as a whole that that directive does not preclude the competent authorities of the Member States from carrying out additional controls or verifications, such as those carried out by the Emissionshandelsstelle after the surrender of allowances by Nordzucker. To the extent that such verifications may reveal irregularities or attempted fraud, they contribute to the correct functioning of the allowance trading scheme. However, where, in that context, a Member State authority finds that the amount of emissions for the previous year, as stated in an operator’s verified report, was understated and that, as a result, an insufficient number of allowances was surrendered, that cannot lead to the application of the penalty provided for in Article 16(3) of Directive 2003/87.