European Commission v Republic of Estonia.
Date: 2012-03-29
34. In that regard, it should be recalled that, under the first paragraph of Article 21 of the Statute of the Court, which is applicable to proceedings before the General Court in accordance with the first paragraph of Article 53 of that Statute and Article 44(1)(c) and (d) of the Rules of Procedure of the General Court, all applications must state the subject‑matter of the dispute, the form of order sought and a brief statement of the pleas in law on which the application is based. Those elements must be sufficiently clear and precise to enable the defendant to prepare its defence and for the General Court to rule on the application, if necessary, without any further information. In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for an action to be admissible, that the essential matters of law and fact relied on should be stated, at least in summary form, coherently and intelligibly in the application itself (Case C-343/08 Commission  v Czech Republic  [2010] ECR I-275, paragraph 26 and the case-law cited).
51. 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.
52. In the present case, it cannot be denied that Directive 2003/87 does not lay down a specific method for elaboration of a national allocation plan or for the fixing of the total quantity of greenhouse gas emission allowances to be granted. Indeed on the contrary, Annex III, point 1, of that directive expressly provides, as the General Court held, in substance, in paragraph 81 of the judgment under appeal, that the Member States must lay down the total quantity of allowances to be allocated taking into account, inter alia, the national energy policy and the national climate change programme.
53. Thus, as the General Court held in paragraph 53 of the judgment under appeal, the Member States have a certain margin for manoeuvre in transposing Directive 2003/87 and, therefore, in choosing the measures which they consider most appropriate to achieve, in the specific context of the national energy market, the objective laid down by that Directive.
64. 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).
67. In those circumstances, the General Court cannot be criticised for having considered that the Commission was under an obligation to examine the data included by the Republic of Estonia in its national allocation plan. If the Commission had doubts regarding those data, it was for it to seek clarification from the competent national authorities or even to prove that those data were not in conformity with the criteria set out in Annex III to Directive 2003/87.
79. In that regard, it must be noted 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 based on Article 1 of Directive 2003/87 and recital 2 in its preamble. Article 1 thus 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.
82. 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.
95. First, in paragraph 99 of that judgment, the General Court noted that the principle of sound administration is included among the guarantees conferred by the European Union legal order in administrative proceedings, that principle entailing the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see, inter alia, Case C-269/90 Technische Universität München  [1991] ECR I-5469, paragraph 14).
110. The fourth ground of appeal concerns paragraphs 31 to 34 and 114 of the judgment under appeal which relate to the question whether Article 1(1) and (2), Article 2(1) and (2) and Article 3(1) of the contested decision are severable or not from the remainder of that decision and whether, therefore, the General Court was right to annul that decision in its entirety.
111. As the General Court noted in paragraph 28 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, paragraphs 45 and 46; Case C-378/00 Commission  v Parliament and Council  [2003] ECR I-937, paragraph 30; and Case C‑244/03 France  v Parliament and Council  [2005] ECR I‑4021, paragraph 12; see, to that effect, Case C-378/00 Commission  v Parliament and Council  [2003] ECR I‑937, paragraph 30). The Court has also repeatedly held that the requirement of severability is not satisfied in the case where the partial annulment of an act would have the effect of altering its substance (Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-1375, paragraph 257; Case C-29/99 Commission  v Council cited above, paragraph 46; and Case C‑244/03 France  v Parliament and Council , cited above, point 13).
112. In the present case, review of whether Article 1(1) and (2), Article 2(1) and (2) 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).
113. It should be noted that the provisions of the contested decision stem from the Commission’s negative assessment of the Estonian NAP, as notified by the Republic of Estonia. Article 1 of that decision lists various incompatibilities of that plan with one or more of the criteria laid down in Annex III to Directive 2003/87. In Article 2 of the decision, the Commission undertakes not to raise objections to the plan adopted after that rejection decision provided that the Member State concerned makes the amendments listed in Article 2(1) to (4). With regard to Article 3 of the contested decision, paragraph 1 thereof governs the fixing of a reserve of allowances and paragraphs 2 and 3 thereof contain details regarding the implementation of the other provisions of that decision.
114. With regard in particular to the relationship between, on the one hand, Article 1(1) and (2), Article 2(1) and Article 3(1) of the contested decision and, on the other hand, the remaining provisions of that decision, it must be concluded that, while referring to a number of different aspects of the Estonian NAP and to the various criteria listed in Annex III to Directive 2003/87, those provisions form a non‑severable whole.
115. First, it cannot be denied that the fixing of the total quantity of greenhouse gas emission allowances to be allocated (criteria Nos 1 to 3 of Annex III to Directive 2003/87) referred to in Articles 1(1), 2(1) and 3(1) of the contested decision, is the principal element of the national allocation plans and is closely linked to the other elements of such plans.
116. Second, as the General Court correctly held in paragraphs 29 and 30 of the judgment under appeal, respectively, the annulment of only some of the paragraphs of Article 1 of the contested decision ‘would have the effect of reducing the number of incompatibilities with … Directive [2003/87] which were found [by the Commission]’. With regard to the annulment of certain paragraphs of Article 2 of that decision, that ‘would have the effect of maintaining in force the Commission’s undertaking not to raise objections to the national plan, while reducing the number of amendments subject to which that undertaking was given’.
117. Nothing in that decision makes it possible to suppose that the Estonian NAP could have been considered to be compatible with Directive 2003/87 without the plan having been amended in accordance with all of the amendments listed in the last mentioned paragraph.
118. As the General Court stated in paragraph 32 of the judgment under appeal, an annulment of only some of the paragraphs of Article 2 ‘would replace the contested decision, according to which the [Estonian NAP] may be adopted subject to four specific amendments for remedying four incompatibilities with the criteria in Annex III [to Directive 2003/87], with a different decision according to which that plan may be adopted subject to a smaller number of amendments’.
119. In the light of those factors, it must be held that the General Court was right to state, in paragraph 31 of the judgment under appeal, that an annulment of one of the paragraphs of Article 1 of the contested decision and of the corresponding paragraph of Article 2 of that decision would have the effect of altering the substance of the decision.
120. With regard to Article 3(2) and (3) of the contested decision, it need only be pointed out that those provisions contain further details regarding the implementation of the other provisions of the contested decision. Thus, in so far as Article 1(1) and (2), Article 2(1) and (2) and Article 3(1) of the contested decision are annulled, Article 3(2) and (3) become devoid of purpose.
121. 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  [2003] ECR I-10333, paragraph 37, and Case C‑244/03 France  v Parliament and Council , cited above, paragraph 14).
122. It follows from the foregoing that the General Court did not commit an error of law by holding that Article 1(1) and (2), Article 2(1) and (2) and Article 3(1) of the contested decision are not severable from the other provisions of that decision and by annulling, therefore, that decision in its entirety. The fourth ground of appeal is therefore unfounded.