European Commission v Republic of Poland.
Date: 2012-03-29
34. In addition, it is apparent from Article 48(2) of the Rules of the Procedure of the General Court that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. It is clear from the case-law that a plea which may be regarded as amplifying a plea made previously, whether directly or by implication, in the original application must be considered admissible (see, inter alia, Case 306/81 Verros v Parliament  [1983] ECR 1755, paragraph 9; Case C‑430/00 P Dürbeck v Commission [2001] ECR I-8457, paragraph 17; Case C‑412/05 P Alcon v OHIM [2007] ECR I‑3569, paragraphs 38 to 40; Case C‑71/07 P Campoli  v Commission  [2008] ECR I‑5887, paragraph 63; and Case C‑485/08 P Gualtieri v Commission [2010] ECR I-3009, paragraph 37).
49. It is true that there may be great differences in the types of obligations which directives impose on the Member States and therefore in the results which they must achieve. It is also common ground that provisions of a directive which concern only the relations between the Member States and the Commission may not require to be transposed (see, to that effect, Case C-32/05 Commission  v Luxembourg  [2006] ECR I-11323, paragraphs 35 and 36). That is however irrelevant for the outcome of the present dispute. It cannot be denied that Articles 9 and 11 of Directive 2003/87 govern the respective roles of the Commission and the Member States in the context of the procedure for adoption of the national allocation plans, that is to say the allocation of powers between them. Those provisions make it possible to determine whether the Member States enjoy a margin for manoeuvre when drawing up their plan and, as the case may be, what is the scope thereof.
62. At the outset, it should be recalled that, according to settled case-law, observance of the principle of equality requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, in particular, Case C-127/07 Arcelor Atlantique and Lorraine and Others  [2008] ECR I-9895, paragraph 23).
77. In that regard, it should be recalled that the declared principal objective of Directive 2003/87 is to reduce greenhouse gas emissions substantially in order to be able to fulfil the commitments of the European Union and its Member States under the Kyoto Protocol. That objective must be achieved in compliance with a series of ‘sub-objectives’ and through recourse to certain instruments. The principal instrument for that purpose is constituted by the Community scheme for greenhouse gas emissions trading (Article 1 of Directive 2003/87 and recital 2 in its preamble). Article 1 states that that scheme promotes emissions reductions in a cost-effective and economically efficient manner. The other sub-objectives to be fulfilled by that scheme are, inter alia, as set out in recitals 5 and 7 in the preamble to the Directive, the safeguarding of economic development and employment and the preservation of the integrity of the internal market and of conditions of competition.
80. The European Union legislature’s intention to confer on the Commission only a power to review the conformity of the national allocation plans with the criteria laid down in Annex III to Directive 2003/87 and the provisions of Article 10 thereof, and not a power to substitute or to harmonise which would include the power to fix a maximum quantity of greenhouse gas emission allowances to be allocated, is apparent both from Article 9(3) of Directive 2003/87 and the travaux préparatoires of that Directive. Thus, to hold that the Commission may fix such a maximum quantity would go beyond the limits of teleological interpretation of that Directive and be tantamount to conferring on that institution powers which lacked any legal basis.
90. It must be held that that ground of appeal is directed, as is apparent from paragraph 134 of the judgment under appeal, against a ground included in that judgment for the sake of completeness and accordingly, even supposing the ground to be well founded, it is not such as to lead to the judgment being set aside (see, inter alia, Case C-164/01 P van den Berg  v Council and Commission  [2004] ECR I-10225, paragraph 60, and Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others  v Commission [2005] ECR I-5425, paragraph 148).
98. As the General Court stated in paragraph 156 of the judgment under appeal, partial annulment of a European Union act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act (see inter alia Case C-29/99 Commission v Council [2002] ECR I‑11221, paragraph 45; Case C‑239/01 Germany v Commission  [2003] ECR I‑10333, paragraph 33; see also, to that effect, Case C‑378/00 Commission  v Parliament and Council  [2003] ECR I‑937, paragraph 30). Similarly, the Court has repeatedly ruled that that requirement of severability is not satisfied where the partial annulment of an act would have the effect of altering its substance (Case C‑244/03 France  v Parliament and Council [2005] ECR I‑4021, paragraph 13; see also, to that effect, Joined Cases C‑68/94 and C‑30/95 France and Others  v Commission  [1998] ECR I‑1375, paragraph 257, and Case C-29/99 Commission v Council , cited above, paragraph 46).
99. In the present case, review of whether Article 1(1), Article 2(1) and Article 3(1) of the contested decision are severable from the remainder of that decision requires consideration of the scope of those provisions, in order to be able to assess whether their annulment would alter the Directive’s spirit and substance (see, to that effect, Case C-540/03 Parliament  v Council [2006] ECR I-5769, paragraph 29).
108. Those findings cannot be invalidated by the Commission’s allegation that altering the substance of a European Union act means turning it into an act which its author would not have had the intention of adopting or would not have adopted. In that regard, it need only be stated that the question whether partial annulment would alter the substance of the contested measure is an objective criterion, and not a subjective criterion linked to the political intention of the authority which adopted the measure at issue (see Case C-239/01 Germany  v Commission , paragraph 37, and Case C‑244/03 France  v Parliament and Council , paragraph 14).