Borealis Polyolefine GmbH and Others v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft and Others.
Date: 2016-04-28
40


It should be pointed out that the Court may, at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, under Article 83 of its Rules of Procedure, in particular if 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 (judgment in Nordzucker, C‑148/14, EU:C:2015:287, paragraph 24).
46


The Court points out, in that regard, that the possibility for a litigant to plead before the court hearing its action the invalidity of provisions in European Union acts presupposes that the party in question had no right of direct action under Article 263 TFEU by which it could challenge those provisions (see judgments in TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraph 23, and Valimar, C‑374/12, EU:C:2014:2231, paragraph 28).
51


As regards the second of the conditions laid down in the fourth paragraph of Article 263 TFEU, that is to say, being individually concerned by the act in question, it is settled case-law that persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed (judgments in Plaumann v Commission, 25/62, EU:C:1963:17, 223, and T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 63).
52


The mere possibility of determining more or less precisely the number or even the identity of the persons to whom a measure applies by no means implies that the measure must be regarded as being of individual concern to them, as long as it is established that such application takes effect by virtue of an objective legal or factual situation defined by the measure in question (judgment in Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraph 58).
53


It is, however, clear from settled case-law that where the decision affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of traders and that that can be the case particularly when the decision alters rights acquired by the individual prior to its adoption (judgment in Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraph 59).
62


The Court notes, in that regard, that the correction factor is determined when required by the result of the arithmetic provided for in Article 10a(5) of Directive 2003/87. It is apparent from that provision, read in the light of Article 15(3) of Decision 2011/278, that the Commission is required to compare, first, the preliminary amount of allowances allocated free of charge to installations not covered by Article 10a(3) of that directive and, second, the maximum annual amount of allowances. The latter amount corresponds to the total amount of the allowances referred to in subparagraphs (a) and (b) of Article 10a(5) of Directive 2003/87.
63


It is not until the preliminary amount of allowances allocated free of charge to installations not covered by Article 10a(3) of Directive 2003/87 exceeds the maximum annual amount of allowances that the Commission determines the correction factor in accordance with the result of that comparison.
64


So far as concerns the exclusion of the emissions from electricity generators from the maximum annual amount of allowances, that exclusion results from the scope of Article 10a(5) of Directive 2003/87 which is limited to ‘installations which are not covered by [Article 10a(3)]’. Article 10a(3) of Directive 2003/87 refers to electricity generators, to installations for the capture of CO2, to pipelines for transport of CO2 or to CO2 storage sites and states that such installations are, in principle, excluded from the free allocation of allowances.
65


Consequently, the reference in Article 10a(5) of Directive 2003/87 to ‘installations which are not covered by paragraph 3’ must be understood as referring to installations which are neither electricity generators, installations for the capture of CO2, pipelines for transport of CO2 nor CO2 storage sites.
66


The fact that the prohibition provided for in Article 10a(3) of Directive 2003/87 applies subject to the rules laid down in other provisions cannot invalidate that finding. As stated by the Advocate General in point 73 of her Opinion, the exclusion of the installations referred to in Article 10a(3) from the free allocation of allowances results directly from that rule of principle, from which it is permissible to derogate on the basis of other provisions.
67


Moreover, the values referred to in Article 10a(5) of Directive 2003/87 are based on historical data. As pointed out by the Commission at the hearing, during the reference periods, unlike electricity generators, installations for the capture of CO2, pipelines for transport of CO2 and CO2 storage sites, referred to in Article 10a(3) of that directive, did not exist. Consequently, with a view to adopting implementing measures within the meaning of Article 10a(1) of Directive 2003/87 so as to implement Article 10a(5) of the directive, the Commission could validly interpret the reference in that latter provision to ‘installations which are not covered by paragraph 3’ as referring only to those which are not electricity generators.
68


As a consequence, by not permitting the taking into account of the emissions of electricity generators in determining the maximum annual amount of allowances, Article 15(3) of Decision 2011/278 is consistent with the wording of Article 10a(5) of Directive 2003/87, read in conjunction with Article 10a(3) of that directive.
69


That interpretation is also consistent with the broad logic of Directive 2003/87 and the objectives which it pursues.
70


Article 15(3) of Decision 2011/278 reflects the dichotomy laid down, inter alia, in Article 10a(1), third subparagraph, and (3) to (5) of Directive 2003/87. In accordance with those provisions, a distinction needs to be made between the installations covered by Article 10a(3) of that directive and other installations which generate greenhouse gases (‘industrial installations’). Electricity generators, inter alia, within the meaning of Article 3(u) of that directive fall within the first group.
71


In accordance with that distinction, pursuant to the first subparagraph of Article 10(9) of Decision 2011/278, the correction factor is applied only to the preliminary amount of allowances allocated free of charge to industrial installations. So far as concerns the installations falling within Article 10a(3) of Directive 2003/87 which, nonetheless, satisfy the conditions for the free allocation of allowances, the second subparagraph of Article 10(9) of Decision 2011/278 provides that the final total amount of allowances allocated free of charge results from the adjustment of the preliminary total annual amount by only the linear factor provided for in Article 9 of Directive 2003/87.
72


Despite the clear distinction between electricity generators and industrial installations, the latter may receive free allowances for certain emissions which are related to electricity generation. However, those emissions are not taken into account in the maximum annual amount of allowances.
73


As regards the generation of electricity from waste gases, it is apparent from recital 32 of Decision 2011/278 that, pursuant to the third subparagraph of Article 10a(1) of Directive 2003/87, the Commission took account of emissions which are related to the efficient energy recovery of waste gases. As noted by the Advocate General in point 68 of her Opinion, the Commission adapted, to that end, certain product benchmarks, namely those for coke, hot metal and sintered ore. It thereby seeks to encourage undertakings to reuse or sell the waste gases generated during the manufacture of those products. It is further apparent from recital 32 of Decision 2011/278 that their reuse, in another process by an industrial installation, results, in principle, in the entitlement to additional free allowances. Although the combustion of those gases by electricity generators does not benefit from such additional allowances, their sale to such electricity generators enables producers of waste gases to save on allowances.
74


Since the preliminary annual number of allowances granted free of charge to industrial installations corresponds, in accordance with Article 10(2) of Decision 2011/278, inter alia, to the value of the benchmarks referred to in Annex I of that decision, including those for coke, hot metal and sintered ore, multiplied by the relevant product-related historical activity level, that number increased in accordance with the adaptations made by the Commission. However, in so far as the waste gases were combusted by electricity generators, the corresponding emissions were not taken into account when establishing the maximum annual amount of allowances.
75


As regards the production of heat produced in cogeneration, it is apparent from Article 10a(3) and (5) of Directive 2003/87 that the emissions from electricity generators, including those emitted by cogeneration installations which generate electricity, are not taken into account for the purposes of determining the maximum annual amount of allowances. By contrast, the third subparagraph of Article 10a(1) of Directive 2003/87 provides that the manner of allocating allowances encourages the use of effective techniques to reduce greenhouse gas emissions and improve energy efficiency, by taking account, inter alia, of high efficiency cogeneration. In that respect, recital 21 of Decision 2011/278 states that, to ensure that the number of allowances to be allocated free of charge is independent from the heat supply structure, allowances should be allocated to the heat consumer.
76


As stated by the Advocate General in point 87 of her Opinion, the fact that installations which generate heat themselves and installations which obtain heating from cogeneration installations are treated in the same way facilitates the management of use of heat in the context of the free allocation of allowances. In principle, it is not necessary to verify how much heating individual installations obtain and from which sources to be able to allocate allowances to those installations. Moreover, that mechanism contributes to the attainment of the objective of promoting the use of techniques such as cogeneration since, by procuring heating from cogeneration installations, industrial installations save allowances which they can sell.
79


Furthermore, such asymmetrical treatment of emissions is consistent with the main objective of Directive 2003/87, which is to protect the environment by means of a reduction of greenhouse gas emissions (see, to that effect, judgment in Arcelor Atlantique and Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 31).
81


To that end, as is apparent, inter alia, from recitals 3 and 5 of Directive 2009/29, Directive 2003/87 seeks to reduce, by 2020, the overall greenhouse gas emissions of the European Union by at least 20% in comparison with 1990 levels, in an economically efficient manner. In order to attain that objective, the EU legislature devised two mechanisms. The first, put in place by Article 9 of Directive 2003/87, consists, pursuant to recitals 13 and 14 of Directive 2009/29, in the reduction in the number of allowances available by the application of a linear factor of 1.74% compared to the average annual total quantity of allowances issued by Member States in accordance with the Commission Decisions on their national allocation plans for the period from 2008 to 2012. The second mechanism is the auctioning of allowances, which also aims to facilitate the reduction of greenhouse gas emissions in an economically efficient manner.
82


In accordance with recital 19 of Directive 2009/29, it is clear from Articles 10(1) and 10a(3) of Directive 2003/87 that full auctioning of allowances has been the rule for electricity generators since 2013. So far as concerns the installations which receive allowances free of charge after that date, in accordance with Article 10a(11) of Directive 2003/87, read in the light of recital 21 of Directive 2009/29, the quantity of such allowances allocated is to decrease gradually, with a view to reaching no free allocation in 2027.
83


As pointed out by the Advocate General in points 57 and 58 of her Opinion, the correction factor contributes to the attainment of those objectives. First, that factor gives effect to the linear reduction of available allowances provided for in Article 9 of Directive 2003/87. Second, since the maximum annual amount of allowances does not take account of emissions related to electricity generation, it ensures that the final amount of free allowances to be allocated free of charge to industrial installations does not include those emissions. In doing so, the correction factor seeks to compensate the taking into account of emissions associated with electricity generation from waste gases and of heating produced in cogeneration when determining the preliminary amount of allowances to be allocated free of charge.
90


It is settled case-law of the Court that the need for a uniform interpretation of a provision of EU law means that, where there is divergence between the various language versions of the provision, the latter must be interpreted by reference to the context and purpose of the rules of which it forms part (judgment in Nike European Operations Netherlands, C‑310/14, EU:C:2015:690, paragraph 17).
98


Since, as has been found in paragraph 95 above, the Commission did not determine the maximum annual amount of allowances in accordance with the requirements of subparagraph (b) of Article 10a(5) of Directive 2003/87, the correction factor laid down in Article 4 of, and Annex II to, Decision 2013/448 is also contrary to that provision.
99


It follows from all of the foregoing considerations that the answer to the ninth question in Cases C‑191/14 and C‑192/14 and to the fifth question in Cases C‑389/14 and C‑391/14 to C‑393/14 must be that Article 4 of, and Annex II to, Decision 2013/448 are invalid.
103


The Court points out, in that regard, that where it is justified by overriding considerations of legal certainty, the second paragraph of Article 264 TFEU, which is also applicable by analogy to a reference under Article 267 TFEU for a preliminary ruling on the validity of acts of the European Union, confers on the Court a discretion to decide, in each particular case, which specific effects of the act in question must be regarded as definitive (judgment in Volker und Markus Schecke and Eifert, C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 93).
106


Second, it must be found that the declaration of invalidity of Article 4 of, and Annex II to, Decision 2013/448 would pose an obstacle, in the absence of an applicable correction factor, to the allocation of allowances during the period following the delivery of this judgment. The temporary legal vacuum which would be brought about could jeopardise the implementation of the allowance trading scheme put in place by Directive 2003/87 and, consequently, the attainment of the objectives pursued by it. Indeed, any interruption of the allowance trading scheme would go against the main objective of that directive, namely to protect the environment by reducing greenhouse gases (see, by analogy, judgment in Inter-Environnement Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraph 61).
107


It should be noted, however, that where the Court rules, in proceedings under Article 267 TFEU, that a measure adopted by an EU authority is invalid, its decision has the legal effect of requiring the competent EU institutions to take the necessary measures to remedy that illegality (see, to that effect, judgment in Régie Networks, C‑333/07, EU:C:2008:764, paragraph 124).
108


Third, it is true that it is for the Court, where it makes use of the possibility of limiting the effect on past events of a declaration in preliminary ruling proceedings that an EU act is invalid, to decide whether an exception to that temporal limitation of the effect of its judgment may be made in favour of the party to the main proceedings which brought the action before the national court against the national measures implementing the EU act, or whether, conversely, a declaration of invalidity applicable only to the future is an adequate remedy even for that party (see, to that effect, judgment in Roquette Frères, C‑228/92, EU:C:1994:168, paragraph 25).