INEOS Köln GmbH v Bundesrepublik Deutschland.
Date: 2018-02-22
26


As a preliminary point, it should be noted that Directive 2003/87 has the purpose of establishing a 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 system, with the ultimate objective of protection of the environment (see, inter alia, judgment of 8 March 2017, ArcelorMittal Rodange et Schifflange, C‑321/15, EU:C:2017:179, paragraph 24).
27


There is an economic logic underlying the scheme which encourages a participant in that scheme to emit quantities of greenhouse gases that are less than the allowances originally allocated him, in order to sell the surplus to another participant who has emitted more than his allowance (see, inter alia, judgment of 8 March 2017, ArcelorMittal Rodange et Schifflange, C‑321/15, EU:C:2017:179, paragraph 22).
28


Directive 2003/87 therefore aims 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 (judgment of 8 September 2016, E.ON Kraftwerke, C‑461/15, EU:C:2016:648, paragraph 23).
29


For that purpose, Article 10a of Directive 2003/87 provides, with regard to installations in certain sectors of activity, for the free allocation of emission allowances, the quantity of which is to decrease gradually over the period 2013-2020, with a view to reaching the complete abolition of free allowances in 2027 (see, to that effect, judgments of 8 September 2016, E.ON Kraftwerke, C‑461/15, EU:C:2016:648, paragraph 24, and of 26 October 2016, Yara Suomi and Others, C‑506/14, EU:C:2016:799, paragraph 46).
30


In accordance with Article 10a(1) of Directive 2003/87, the Commission established, by Decision 2011/278, Union-wide harmonised rules for that free allocation of emission allowances. Those harmonised rules give concrete expression to the essential requirement that distortions of competition in the internal market be minimised (judgment of 22 June 2016, DK Recycling und Roheisen v Commission, C‑540/14 P, EU:C:2016:469, paragraph 53).
33


First of all, during the first stage, the Member States were obliged, in accordance with Article 7 of Decision 2011/278, to collect from operators, for each incumbent installation eligible for such an allocation, all relevant information and data for all the years, in principle, of the period from 2005-2008 during which the installation has been operating, regarding each of the parameters listed in Annex IV to that decision which enables the amount of the allocation to be determined (see judgment of 8 September 2016, E.ON Kraftwerke, C‑461/15, EU:C:2016:648, paragraph 25).
35


On the basis of the information thus gathered, the Member States, in accordance with Article 10 of Decision 2011/278, had to calculate for each year the preliminary number of emission allowances allocated free of charge from 2013 onwards to each incumbent installation on their territory (judgment of 8 September 2016, E.ON Kraftwerke, C‑461/15, EU:C:2016:648, paragraphs 26 and 34).
37


Next, in the second stage, the Commission was required, upon receipt of that list and where the preliminary total annual amount calculated by the Member States exceeded the industry ceiling corresponding to the maximum annual amount of allowances referred to in Article 10a(5) of Directive 2003/87, to make a proportionate reduction of that preliminary amount calculated by the Member States by applying the ‘cross-sectoral correction factor’ provided for in that provision, which corresponds to the ratio between that preliminary amount and the ceiling (see, to that effect, judgment of 28 April 2016, Borealis Polyolefine and Others, C‑191/14, C‑192/14, C‑295/14, C‑389/14 and C‑391/14 to C‑393/14, EU:C:2016:311, paragraphs 62 and 63).
42


In those circumstances, in the absence of EU rules concerning the procedural requirements attaching to the submission and examination of an application for free allocation of emission allowances, it is, according to established case-law, for the domestic legal system of each Member State to determine those requirements in accordance with the principle of procedural autonomy provided, however, that those requirements are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order (principle of effectiveness) (see, to that effect, inter alia, judgment of 20 October 2016, Danqua, C‑429/15, EU:C:2016:789, paragraph 29).
44


As regards the principle of effectiveness, it should be recalled that, according to settled case-law, every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies. In that context, it is necessary, inter alia, to take into consideration, where relevant, the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the procedure (see, inter alia, judgment of 20 October 2016, Danqua, C‑429/15, EU:C:2016:789, paragraph 42).
45


As regards, more particularly, time limits, the Court has held that, in respect of national rules which come within the scope of EU law, it is for the Member States to establish those time limits in the light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration (see, inter alia, judgment of 20 October 2016, Danqua, C‑429/15, EU:C:2016:789, paragraph 44).
46


In that regard, it is clear from the case-law that the setting of time limits must, in principle, satisfy the requirement of effectiveness since it constitutes an application of the fundamental principle of legal certainty which protects both the person and the administration concerned. Such time limits are not, in principle, liable to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (see, inter alia, judgment of 21 December 2016, TDC, C‑327/15, EU:C:2016:974, paragraph 98).
47


It follows that, in the interests of legal certainty, laying down reasonable time limits is compatible with EU law (judgment of 29 October 2015, BBVA, C‑8/14, EU:C:2015:731, paragraph 28).
53


However, it must be recalled that, according to settled case-law, a mandatory time limit is, in principle, compatible with the principle of effectiveness, even though the expiry of such a time limit is by its nature liable to prevent the persons concerned from asserting their rights in whole or in part (see, inter alia, judgments of 16 May 2000, Preston and Others, C‑78/98, EU:C:2000:247, paragraph 34; of 18 September 2003, Pflücke, C‑125/01, EU:C:2003:477, paragraph 35; and of 8 September 2011, Q-Beef and Bosschaert, C‑89/10 and C‑96/10, EU:C:2011:555, paragraph 36).
57


In that regard, it is true, as the Court has already pointed out, that the Member States, in accordance with Article 7(7) of Decision 2011/278 read in conjunction with recital 15 of that decision, must ensure that the data collected from the operators and used for free allocation of emission allowances is complete, consistent and presents the highest achievable accuracy (judgment of 8 September 2016, E.ON Kraftwerke, C‑461/15, EU:C:2016:648, paragraphs 27 and 37).