Republic of Poland v European Parliament and Council of the European Union.
Date: 2018-06-21
27


That Member State claims that such an analysis is not contrary to the Court’s case-law on the subject of the choice of legal basis. More specifically, it follows from the judgments of 23 February 1999, Parliament v Council (C‑42/97, EU:C:1999:81, paragraph 63) and of 12 December 2002, Commission v Council (C‑281/01, EU:C:2002:761, paragraphs 40 and 41) that the effects produced by a legislative measure form part of the objective elements that can be subject to judicial review.
38


In that case, the Court noted that the choice of the legal basis for an EU measure must rest on objective factors amenable to judicial review, which include, inter alia, the aim and content of that measure (judgments of 30 January 2001, Spain v Council, C‑36/98, EU:C:2001:64, paragraph 58 and 59, and of 11 June 2014, Commission v Council, C‑377/12, EU:C:2014:1903, paragraph 34 and the case-law cited).
45


That conclusion is irreconcilable with the Court’s case-law, according to which provisions that are exceptions to principles must be interpreted strictly (see, by analogy, judgment of 10 June 2010, Bruno and Others, C‑395/08 and C‑396/08, EU:C:2010:329, paragraph 35 and the case-law cited).
49


As a preliminary point, the Court notes that the contested measure is, indeed, intrinsically linked to Directive 2003/87. However, according to settled case-law, the legal basis for a measure must be determined having regard to its own aim and content and not to the legal basis used for the adoption of other EU measures that might, in certain cases, display similar characteristics (judgment of 10 January 2006, Commission v Parliament and Council, C‑178/03, EU:C:2006:4, paragraph 55). Consequently, as the Republic of Poland rightly states, the analysis of the legal basis of the contested decision must be carried out independently from the analysis of the legal basis of Directive 2003/87.
84


The Parliament and Council’s legislative power, conferred in Article 14(1) TEU and Article 16(1) TEU, which reflects the principle of conferred powers, enshrined in Article 13(2) TEU, and, more broadly, the principle of institutional balance, characteristic of the institutional structure of the European Union, means, however, that it is for those institutions alone to decide the content of a measure (see, with regard to the Commission’s power of legislative initiative, judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 146).
86


Furthermore, the alleged effect of the ‘political’ nature of the European Council’s conclusions on both the Parliament and the Council’s legislative power cannot be a ground on which the Court may annul the contested decision (see, to that effect, judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 145).
90


According to settled case-law, sincere cooperation between EU institutions, as provided for in Article 13(2) TEU, is to be exercised within the limits of the powers granted by the Treaties to each institution. The obligation arising under that provision is therefore not capable of modifying those powers (see, to that effect, inter alia, judgments of 14 April 2015, Council v Commission, C‑409/13, EU:C:2015:217, paragraph 64 and the case-law cited, and of 6 October 2015, Council v Commission, C‑73/14, EU:C:2015:663, paragraph 84 and the case-law cited). Consequently, such cooperation cannot undermine one EU institution’s capacity to exercise its powers to the benefit of another institution.
100


In order to adjudicate on the third plea in law, the Court recalls that it follows from its case-law that the principle of legal certainty, the corollary of which is the principle of the protection of legitimate expectations, requires, inter alia, that rules of law be clear, precise and predictable in their effect, especially when they may have adverse consequences on individuals and undertakings (judgment of 20 December 2017, Global Starnet, C‑322/16, EU:C:2017:985, paragraph 46 and the case-law cited).
110


As to the possibility of relying on the principle of the protection of legitimate expectations, it follows from settled case-law that such protection is afforded to each economic operator with regard to whom an institution has given rise to justified hopes. Within the meaning of that case-law, in whatever form it is given, information which is precise, unconditional and consistent and comes from authorised and reliable sources constitutes assurances capable of giving rise to such hopes (judgment of 14 March 2013, Agrargenossenschaft Neuzelle, C‑545/11, EU:C:2013:169, paragraphs 24 and 25 and the case-law cited).
111


However, if a prudent and alert economic operator can foresee the adoption of an EU measure likely to affect his interests, he cannot plead the principle of protection of legitimate expectations if the measure is adopted (judgment of 14 March 2013, Agrargenossenschaft Neuzelle, C‑545/11, EU:C:2013:169, paragraph 26).
112


Further, with regard to reliance on the principle of the protection of legitimate expectations due to the actions of the EU legislature, it must be noted that the Court has acknowledged that that legislature has a broad discretion where its action involves political, economic and social choices and where it is called on to undertake complex assessments and evaluations (judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 57).
125


First, as has been recalled in paragraph 112 above, the ETS is a complex scheme in the context of which the Court has recognised that the EU legislature has the power to have recourse to a step-by-step approach in the light of the experience gained where it is called on to restructure it (see, to that effect, judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 57).
150


At the outset, the point must be made that, in an area of evolving and complex technology, the EU legislature has a broad discretion, in particular as to the assessment of highly complex scientific and technical facts in order to determine the nature and scope of the measures that it adopts, whereas review by the EU judicature has to be limited to verifying whether the exercise of such powers has been vitiated by a manifest error of appraisal or a misuse of powers, or whether the legislature has manifestly exceeded the limits of its discretion. In such a context, the EU judicature cannot substitute its assessment of scientific and technical facts for that of the legislature on which the Treaty has placed that task (judgment of 8 July 2010, Afton Chemical, C‑343/09, EU:C:2010:419, paragraph 28).
151


Further, the EU legislature’s broad discretion, which implies limited judicial review of its exercise, applies not only to the nature and scope of the measures to be taken but also, to some extent, to the finding of the basic facts (judgments of 7 September 2006, Spain v Council, C‑310/04, EU:C:2006:521, paragraph 121, and of 8 July 2010, Afton Chemical, C‑343/09, EU:C:2010:419, paragraph 33).
152


However, even though such judicial review is of limited scope, it requires that the EU institutions that have adopted the act in question must be able to show before the Court that in adopting the act they actually exercised their discretion, which presupposes the taking into consideration of all the relevant factors and circumstances of the situation the act was intended to regulate (judgments of 7 September 2006, Spain v Council, C‑310/04, EU:C:2006:521, paragraph 122, and of 8 July 2010, Afton Chemical, C‑343/09, EU:C:2010:419, paragraph 34).
153


It follows that the institutions must at the very least be able to produce and set out clearly and unequivocally the basic facts which had to be taken into account as the basis of the contested measures of the act and on which the exercise of their discretion depended (judgment of 7 September 2006, Spain v Council, C‑310/04, EU:C:2006:521, paragraph 123).
159


Moreover, it must be recalled that the Court has found that an impact assessment is not binding on either the Parliament or the Council (judgment of 8 July 2010, Afton Chemical, C‑343/09, EU:C:2010:419, paragraph 57).
160


It is evident from the documents submitted to the Court that the legislature also took into account other findings that became available during negotiations prior to the adoption of the contested decision.
161


In particular, in an effort to give guidance to the debates in the Council and the Parliament, on 25 June 2014, the Commission organised a meeting of experts on the effects of the proposed measures on the market and the operation of the MSR. A debate on the reserve, bringing together market operators and national experts, took place on 8 September 2014. Lastly, on 5 November 2014, the Parliament organised a workshop on the MSR that was open to the public, in connection with which it also carried out additional assessments on the start date for the MSR.
162


Furthermore, it is also clear from the documents submitted to the Court that, during Council meetings, several delegations presented their evaluations of the effects of the various options during meetings of the ‘Environment’ group. Thus, the deliberations on the proposal for a decision were supplemented by the factual basis on which the delegates of all Member States relied in order to define their position during those meetings.
163


It follows from the foregoing that, during the legislative procedure, the Parliament and the Council took into account the available scientific data in order to exercise their discretion properly.
167


It follows from the case-law of the Court that the legislature does not have to take into consideration the particular situation of a Member State where the EU measure has an impact in all Member States and requires that a balance between the different interests involved is ensured, taking account of the objectives of that measure. Therefore, the attempt to strike such a balance, taking into account not the particular situation of a single Member State, but that of all EU Member States, cannot be regarded as being contrary to the principle of proportionality (see, by analogy, judgment of 18 June 2015, Estonia v Parliament and Council, C‑508/13, EU:C:2015:403, paragraph 39).
169


More specifically, as regards the fourth plea in law alleging an infringement of the principle of proportionality, it must be borne in mind that that principle is one of the general principles of EU law and requires that measures implemented through EU law provisions be of such a kind as to allow the legitimate objectives pursued by the legislation at issue to be achieved and must not go beyond what is necessary to achieve them (judgment of 17 October 2013, Billerud Karlsborg and Billerud Skärblacka, C‑203/12, EU:C:2013:664, paragraph 34 and the case-law cited).
170


The Court also noted that, with regard to judicial review of those conditions, as has been pointed out in paragraph 150 above, the EU legislature must, nevertheless, be allowed a broad discretion when it is asked to intervene in an area which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. In its judicial review of the exercise of such powers, the Court cannot substitute its own assessment for that of the EU legislature. It could, at most, find fault with its legislative choice only if it appeared manifestly incorrect or if the resultant disadvantages for certain economic operators were wholly disproportionate to the advantages otherwise offered (judgment of 17 October 2013, Billerud Karlsborg and Billerud Skärblacka, C‑203/12, EU:C:2013:664, paragraph 35 and the case-law cited).