1 By its appeal, DK Recycling und Roheisen GmbH (‘DK Recycling’) seeks to have set aside the judgment of the General Court of the European Union of 26 September 2014 in DK Recycling und Roheisen v Commission (T‑630/13, EU:T:2014:833, ‘the judgment under appeal’) by which the General Court upheld in part only its claim for annulment of Commission Decision 2013/448/EU of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2013 L 240, p. 27), in that, in Article 1(1) of that decision, read in conjunction with point A of Annex I thereto, the decision does not accept the inscription on the list provided for in Article 11(1) of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32), as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 (OJ 2009 L 140, p. 63) (‘Directive 2003/87’), of the installations having the identification codes DE000000000001320 and DE-new-14220-0045, and the preliminary total annual amounts of greenhouse gas emission allowances allocated free of charge and proposed by the Federal Republic of Germany in respect of those installations (‘the decision at issue’).
2 According to recital 5, Directive 2003/87 aims to contribute to fulfilling the commitments of the European Union and its Member States to reduce anthropogenic greenhouse gas emissions ‘more effectively, through an efficient European market in greenhouse gas emission allowances, with the least possible diminution of economic development and employment’.
3 Recital 7 of that directive states: ‘Community provisions relating to allocation of allowances by the Member States are necessary to contribute to preserving the integrity of the internal market and to avoid distortions of competition.’
4 Recitals 8, 15, 23, 44 and 45 of Directive 2009/29 are worded as follows: ‘(8) While experience gathered during the first trading period shows the potential of the Community scheme and the finalisation of national allocation plans for the second trading period will deliver significant emission reductions by 2012, a review undertaken in 2007 has confirmed that a more harmonised emission trading system is imperative in order to better exploit the benefits of emission trading, to avoid distortions in the internal market and to facilitate the linking of emissions trading systems. … … (15) The additional effort to be made by the Community economy requires, inter alia, that the revised Community scheme operate with the highest possible degree of economic efficiency and on the basis of fully harmonised conditions of allocation within the Community. Auctioning should therefore be the basic principle for allocation, as it is the simplest, and generally considered to be the most economically efficient, system. This should also eliminate windfall profits and put new entrants and economies growing faster than average on the same competitive footing as existing installations. … (23) Transitional free allocation to installations should be provided for through harmonised Community-wide rules (ex-ante benchmarks) in order to minimise distortions of competition with the Community. Those rules should take account of the most greenhouse gas and energy-efficient techniques, substitutes, alternative production processes, use of biomass, renewables and CO2 capture and storage. Any such rules should not give incentives to increase emissions and should ensure that an increasing proportion of these allowances is auctioned. Allocations must be fixed prior to the trading period so as to enable the market to function properly. … … (44) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission [(OJ 1999 L 184, p.23)]. (45) In particular, the Commission should be empowered to adopt measures for the harmonisation of rules on ... the transitional Community-wide allocation of allowances ... Since those measures are of general scope and are designed to amend non-essential elements of Directive 2003/87/EC, inter alia, by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.’
5 In accordance with Article 10(1) of Directive 2003/87, on the ‘auctioning of allowances’: ‘From 2013 onwards, Member States shall auction all allowances which are not allocated free of charge in accordance with Article 10a and 10c. …’
6 Article 10a of Directive 2003/87, entitled ‘Transitional Community-wide rules for harmonised free allocation’, provides: ‘1. By 31 December 2010, the Commission shall adopt Community-wide and fully-harmonised implementing measures for the allocation of the allowances referred to in paragraphs 4, 5, 7 and 12, including any necessary provisions for a harmonised application of paragraph 19. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 23(3). The measures referred to in the first subparagraph shall, to the extent feasible, determine Community-wide ex-ante benchmarks so as to ensure that allocation takes place in a manner that provides incentives for reductions in greenhouse gas emissions and energy efficient techniques ... For each sector and subsector, in principle, the benchmark shall be calculated for products rather than for inputs, in order to maximise greenhouse gas emissions reductions and energy efficiency savings throughout each production process of the sector or the subsector concerned. … 2. In defining the principles for setting ex-ante benchmarks in individual sectors or subsectors, the starting point shall be the average performance of the 10% most efficient installations in a sector or subsector in the Community in the years 2007-2008. The Commission shall consult the relevant stakeholders, including the sectors and subsectors concerned. …’
7 Article 11 of Directive 2003/87, entitled ‘National implementation measures’, provides: ‘1. Each Member State shall publish and submit to the Commission, by 30 September 2011, the list of installations covered by this Directive in its territory and any free allocation to each installation in its territory calculated in accordance with the rules referred to in Article 10a(1) and Article 10c. 2. By 28 February of each year, the competent authorities shall issue the quantity of allowances that are to be allocated for that year, calculated in accordance with Articles 10, 10a and 10c. 3. Member States may not issue allowances free of charge under paragraph 2 to installations whose inscription in the list referred to in paragraph 1 has been rejected by the Commission.’
8 By Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2011 L 130, p. 1), the Commission established the harmonised bases on which the Member States are required to calculate, for each year, the number of emission allowances allocated free of charge to each installation in their territory.
9 Recitals 4 and 12 of Decision 2011/278 state: ‘(4) To the extent feasible, the Commission has developed benchmarks for products, as well as intermediate products that are traded between installations, produced from activities listed in Annex I to Directive 2003/87/EC. In principle, for each product one benchmark should be defined. … … (12) Where deriving a product benchmark was not feasible, but greenhouse gases eligible for the free allocation of emission allowances occur, those allowances should be allocated on the basis of generic fallback approaches. A hierarchy of three fallback approaches has been developed in order to maximise greenhouse gas emission reductions and energy savings for at least parts of the production processes concerned. The heat benchmark is applicable for heat consumption processes where a measurable heat carrier is used. The fuel benchmark is applicable where non-measurable heat is consumed. The heat and fuel benchmark values have been derived based upon the principles of transparency and simplicity, using the reference efficiency of a widely available fuel that can be regarded as second-best in terms of greenhouse gas efficiency, considering energy efficient techniques. For process emissions, emission allowances should be allocated on the basis of historical emissions. In order to ensure that the free allocation of emission allowances for such emissions provides sufficient incentives for reductions in greenhouse gas emissions and to avoid any difference in treatment of process emissions that are allocated on the basis of historical emissions and those within the system boundaries of a product benchmark, the historical activity level of each installation should be multiplied by a factor equal to 0.9700 to determine the number of free emission allowances.’
10 In Germany, Directive 2003/87 and Decision 2011/278 were implemented, inter alia, by the Law on greenhouse gas emissions trading (Treibhausgas-Emissionshandelsgesetz) of 21 July 2011 (‘the TEHG’).
11 Paragraph 9(5) of the TEHG provides as follows: ‘If the allocation of allowances made on the basis of Article 10 entails undue hardship for the operator of the installation and for a connected undertaking which, for reasons relating to commercial law and company law, is liable for the economic risks of that operator, the competent authority shall allocate, at the request of the operator, additional allowances in the amount required for fair compensation, provided the European Commission does not reject that allocation on the basis of Article 11(3) of Directive [2003/87].’
12 As at the date of the decision at issue, DK Recycling was operating, in Germany, an installation for the recycling of waste from the steel industry containing iron and zinc, and also a power plant, both of which were subject to the scheme for greenhouse gas emission allowance trading established by Directive 2003/87.
13 On the basis of Paragraph 9(5) of the TEHG, DK Recycling obtained the German authorities’ approval for the inscription of those installations on the list referred to in Article 11(1) of Directive 2003/87.
14 By the decision at issue, the Commission did not accept that inscription or, in consequence, the corresponding free allocation of allowances.
15 That refusal was based, in essence, on the following considerations.
16 First, Decision 2011/278 made no provision, according to the Commission, for the allocation of allowances with which the Federal Republic of Germany wished to proceed pursuant to Paragraph 9(5) of the TEHG.
17 Secondly, the Federal Republic of Germany had not shown that the allocation of allowances on the basis of the rules laid down by Decision 2011/278 was manifestly inappropriate, having regard to the objective of total harmonisation of allocations envisaged by that decision.
18 Thirdly, allocating more free allowances to some installations would distort or threaten to distort competition and has cross-border effects, given the Union-wide trade in all sectors covered by Directive 2003/87.
19 By application lodged at the General Court Registry on 28 November 2013, DK Recycling sought annulment of the decision at issue.
20 In support of its action, DK Recycling put forward four pleas in law, alleging, first, failure to have regard to Decision 2011/278; secondly, breach of fundamental rights and of the principle of proportionality; thirdly, infringement of the obligation to state reasons; and, fourthly, infringement of the right to be heard. After rejecting the plea of inadmissibility raised by the Commission, the General Court, by the judgment under appeal, rejected the first, second and fourth pleas in law, but upheld the third.
21 The General Court concluded that the decision at issue had to be annulled, but only in so far as it does not accept the free allocation proposed by the Federal Republic of Germany of emission allowances for a process emissions sub-installation for the production of zinc in the blast furnace and related processes.
22 By contrast, the General Court dismissed the remainder of the claims put forward in the application by DK Recycling, concerning the refusal to take account of a case of ‘undue hardship’ in the free allocation of allowances.
23 In doing so, the General Court held, in particular, following an examination of the proportionality of Decision 2011/278, that, in not permitting allowances to be allocated free of charge in cases of ‘undue hardship’, that decision did not fail to have regard to the fundamental rights of DK Recycling and the principle of proportionality.
24 The appellant claims that the Court should: - set aside the judgment under appeal in so far as it dismisses the remainder of its claims; - rule on the substance of the case and annul the decision at issue in its entirety; - in the alternative, set aside the judgment under appeal and refer the case back to the General Court; - order the Commission to pay the costs.
25 The Commission contends that the Court of Justice should: - dismiss the appeal in its entirety; - order DK Recycling to pay the costs.
26 By letter lodged at the Court Registry on 23 March 2016, DK Recycling requested the Court to order the reopening of the oral part of the procedure, pursuant to Article 83 of the Rules of Procedure of the Court of Justice. In support of its request, DK Recycling invokes the need to present its views on the Opinion delivered by the Advocate General and in particular on his conclusion that the grounds of appeal are ineffective.
27 It must be borne in mind that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court make no provision for parties to submit observations in response to the Advocate General’s Opinion (judgment of 4 September 2014 in Vnuk, C‑162/13, EU:C:2014:2146, paragraph 30 and the case-law cited).
28 However, the Court may, under Article 83 of its Rules of Procedure, at any time, after hearing the Advocate General, order the opening or reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court.
29 That is not the case here. The Court, after hearing the Advocate General, considers that it has all the information necessary to give a ruling and that the case does not have to be examined in the light of a new fact which is of such a nature as to be a decisive factor for its decision or of an argument which has not been debated before it.
30 In the light of the foregoing considerations, the Court considers that there is no need to order that the oral part of the procedure be reopened.
31 Although it does not expressly request substitution of the grounds of the judgment under appeal, the Commission maintains that even if each ground of appeal can be rejected individually, the appeal must, principally, be dismissed for what it terms a ‘more fundamental’ reason.
32 The Commission states in that regard that the General Court erred in law in ruling, in paragraph 50 of the judgment under appeal, that the Commission was empowered under Directive 2003/87 to provide in Decision 2011/278 for the free allocation of allowances where applying the harmonised rules laid down by that decision would entail ‘undue hardship’ for operators.
33 Since the Commission is not thereby seeking - nor, moreover, could it seek - to have the judgment under appeal set aside, its arguments must be regarded as being intended to procure the substitution by the Court of the grounds of that judgment.
34 As the Commission submits, should it become apparent that, as it maintains, Directive 2003/87 did not enable it to allocate additional allowances free of charge in cases of ‘undue hardship’, any plea which DK Recycling could have raised in the context of the present appeal would be ineffective.
35 The Court must, therefore, examine the Commission’s arguments in that respect before it examines the grounds of appeal.
36 The Commission contends that the first and second paragraphs of Article 10a(1) of Directive 2003/87 do not confer on it any power to introduce a provision in Decision 2011/278 that would enable allowances to be allocated free of charge to undertakings suffering ‘undue hardship’. In that regard, the Commission challenges the General Court’s interpretation, in paragraph 50 of the judgment under appeal, according to which an infringement by that decision of fundamental rights and of the principle of proportionality could not automatically be ruled out, in so far as the Commission’s discretion under Directive 2003/87 enabled it to provide for the free allocation of allowances in cases of ‘undue hardship’.
37 The Commission submits, on the contrary, that Article 10a(1) of Directive 2003/87 did not enable it to derogate from the principle requiring the adoption of Union-wide and fully-harmonised implementing measures as regards the free allocation of allowances, the legislature’s objective, as indicated by other provisions of that directive and by recital 23 of Directive 2009/29, being to minimise distortions of competition in the European Union and to ensure that no incentives are given to increase emissions. Rules permitting additional allowances to be allocated to an installation that is in all respects comparable, in terms of its products, to another installation, and which is distinguishable from it only in so far as the application of the allowance trading scheme would cause it to suffer ‘undue hardship’ owing to the lack of financial capacity, would be contrary to those objectives and could not therefore be regarded as Community-wide and fully-harmonised measures.
38 In addition, according to the Commission, the requirement of Community-wide and fully-harmonised rules is among the essential elements of Directive 2003/87, which, according to the second paragraph of Article 10a(1) of that directive, the Commission cannot amend.
39 Lastly, the Commission submits that the expression ‘to the extent feasible’ used in the third paragraph of Article 10a(1) of Directive 2003/87 gives it some latitude only as regards the regulatory approach to be adopted for each sector or subsector, and certainly not for a particular undertaking.
40 In its reply, DK Recycling contests the Commission’s arguments and makes clear that, were the Court to decide to accept them, it would claim that Directive 2003/87 is incompatible with the Charter of Fundamental Rights of the European Union.
41 In its rejoinder, the Commission contends that that plea of illegality is not admissible and, alternatively, is unfounded, in the light of the conformity of Directive 2003/87 with fundamental rights and with the principle of proportionality.
42 According to the Court’s settled case-law, for a request for substitution of grounds to be admissible, the party concerned must have an interest in bringing proceedings, in so far as the request must be capable, if successful, of procuring an advantage to the party making it. That may be the case where the request for substitution of grounds amounts to a defence to one of the applicant’s pleas (see, to that effect, judgments of 6 October 2009 in GlaxoSmithKline Services and Others v CommissionC‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P EU:C:2009:610, paragraph 23; of 21 December 2011 in Iride v Commission, C‑329/09 P, EU:C:2011:859, paragraphs 48 to 51; and of 11 July 2013 in Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 42).
43 In this case, the request for the substitution of grounds seeks a declaration by the Court of Justice that the General Court erred in law in ruling that the Commission was empowered, under Article 10a(1) of Directive 2003/87, to introduce into Decision 2011/278 a provision relating to cases of ‘undue hardship’. Were the Court to grant the request, the pleas by which DK Recycling complains that the Commission failed to adopt such a provision and that the General Court failed to conclude from this that that decision should be annulled, would become ineffective.
44 It follows that the request for substitution of grounds, which could have a bearing on a number of the arguments put forward in the appeal, is admissible.
45 It is necessary to determine whether the General Court could, without erring in law, rule that the Commission was competent to introduce into Decision 2011/278 a provision enabling additional allowances to be allocated free of charge to certain undertakings for which the allocation of allowances under the sectoral rules laid down by that decision would entail ‘undue hardship’.
46 It is important to bear in mind that recital 45 of Directive 2009/29 mentions the need for ‘the Commission [to] be empowered to adopt measures for the harmonisation of rules on ... the transitional Community-wide allocation of allowances’. The second paragraph of Article 10a(1) of Directive 2003/87 states that those implementing measures are ‘designed to amend non-essential elements’ of that directive.
47 It must be noted that the Court has already ruled that provisions which, in order to be adopted, require political choices falling within the responsibilities of the EU legislature cannot be delegated by the legislature, and that, accordingly, implementing measures adopted by the Commission cannot amend essential elements of basic legislation or supplement it by new essential elements (judgment of 5 September 2012 in Parliament v Council, C‑355/10, EU:C:2012:516, paragraphs 65 and 66).
48 Identifying the elements of a matter which must be categorised as essential must be based on objective factors amenable to judicial review, and requires account to be taken of the characteristics and particular features of the field concerned (judgment of 10 September 2015 in Parliament v Council, C‑363/14, EU:C:2015:579, paragraph 47).
49 As regards the elements of Directive 2003/87 which must be categorised as essential within the meaning of the provisions and case-law cited in paragraphs 46 to 48 of the present judgment, it must be pointed out that, although the principal objective of that directive is to reduce greenhouse gas emissions substantially, that objective must be attained in compliance with a series of sub-objectives. As indicated in recitals 5 and 7 of that directive, those sub-objectives include the safeguarding of economic development and employment and the preservation of the integrity of the internal market and of conditions of competition (judgments of 29 March 2012 in Commission v Poland, C‑504/09 P, EU:C:2012:178, paragraph 77; in Commission v Estonia, C‑505/09 P, EU:C:2012:179, paragraph 79; and of 17 October 2013 in Iberdrola and Others, C‑566/11, C‑567/11, C‑580/11, C‑591/11, C‑620/11 and C‑640/11, EU:C:2013:660, paragraph 43).
50 The repeated reference to the sub-objective relating to the preservation of conditions of competition in the internal market, not only in recitals 5 and 7 of Directive 2003/87 but also in recitals 8 and 15 of Directive 2009/29, demonstrates the essential nature of that sub-objective in the scheme for greenhouse gas emission allowance trading.
51 As regards more specifically the transitional rules for the free allocation of allowances, it must be noted that recital 23 of Directive 2009/29 also envisages the requirement that distortions of competition within the Community be minimised. To that end, it is made clear that transitional free allocation of allowances must be provided for through harmonised Community-wide rules.
52 Thus, in Article 10a(1) of Directive 2003/87, the legislature emphasised the requirement of full harmonisation by providing that ‘the Commission shall adopt Community-wide and fully-harmonised implementing measures for the allocation of the allowances’, and, moreover, indicated to the Commission the criteria in accordance with which harmonisation was to be undertaken, namely, in essence, on the basis of benchmarks in sectors and subsectors.
53 In providing for this method of free allocation of allowances, fully-harmonised on a sectoral basis, the legislature gave concrete expression to the essential requirement that distortions of competition in the internal market be minimised.
54 Consequently, the Commission cannot, without being in breach of that requirement, and thus without amending an essential element of Directive 2003/87, lay down rules for the free allocation of allowances that are not fully harmonised and sectoral.
55 There is no doubt that the Commission’s introduction into Decision 2011/278 of a provision permitting the free allocation of allowances to certain undertakings faced with ‘undue hardship’ following the application of the sectoral criteria laid down by that decision would have conflicted with the principle of the harmonised and sectoral allocation of allowances free of charge, since it would necessarily have implied a case-by-case approach based on there being particular and individual circumstances peculiar to each operator affected by such ‘undue hardship’. Consequently, such a provision would have been such as to amend an essential element of Directive 2003/87, thus undermining the scheme it establishes.
56 In those circumstances, the General Court erred in law in ruling, in paragraph 50 of the judgment under appeal, that the Commission was empowered, under Article 10a(1) of Directive 2003/87, to introduce such a provision.
57 That conclusion cannot be called into question by the use of the words ‘to the extent feasible’ and ‘in principle’ in the third and fourth paragraphs of Article 10a(1) of Directive 2003/87. While those words give the Commission a certain discretion to determine the ex-ante benchmarks where it is not possible to use a benchmark calculated on the basis of products, they are not intended to enable the Commission to derogate from a harmonised and sectoral allocation of allowances. Moreover, a contextual analysis of those words serves to support - in so far as it might be necessary to do so - the interpretation according to which ex-ante benchmarks must be set ‘in individual sectors or subsectors’, those being the words used in Article 10a(2) of Directive 2003/87.
58 The General Court was therefore wrong to dismiss the action brought by DK Recycling on the basis that the Commission could lawfully have adopted a provision providing for the free allocation of allowances in cases of ‘undue hardship’, instead of confining itself to noting that the Commission was not in any event competent to adopt such a provision.
59 Accordingly, the request for the substitution of grounds must be granted.
60 It follows from the foregoing that the pleas by which DK Recycling complains that the General Court failed to censure the absence, in Decision 2011/278, of any provision for the free allocation of additional allowances in cases of ‘undue hardship’ are ineffective and must be rejected.
61 Furthermore, as regards DK Recycling’s argument that Directive 2003/87 is unlawful in so far as it did not lay down such a provision, even if, as it claims, DK Recycling did invoke the unlawfulness of that directive before the General Court, it is evident from the documents in the file of the written procedure before the Court of Justice that it raised this plea for the first time in the context of the appeal only in its reply, and not in its application initiating the appeal proceedings.
62 It is apparent from Article 127(1) of the Rules of Procedure of the Court of Justice, which applies to the procedure on an appeal by virtue of Article 190 of those rules, 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.
63 No such exception can apply to the plea put forward by DK Recycling in its reply, in response to the comment by which the Commission, in the defence, merely observed, without putting forward any new matter of law or of fact, that the lawfulness of Directive 2003/87 was not being called into question in the appeal.
64 The plea alleging that Directive 2003/87 is unlawful must therefore be ruled inadmissible.
65 Accordingly, the appeal must be dismissed.
66 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
67 Under Article 138(1) of those rules, which apply to the procedure on an appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
68 Since the Commission has applied for costs to be awarded against the appellant and the latter has been unsuccessful, the appellant must be ordered to bear its own costs and to pay those incurred by the Commission.