Case C‑203/12

Billerud Karlsborg AB

and

Billerud Skärblacka AB v Naturvårdsverket

(Request for a preliminary ruling from the Högsta domstolen)

‛Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — Penalty for excess emissions — Concept of excess emission — Equated with infringement of the obligation to surrender, within the time periods prescribed by the directive, a sufficient number of allowances to cover the emissions from the previous year — No exculpatory cause in the event of actual holding of non-surrendered allowances, unless force majeure — No possibility of varying the amount of the penalty — Proportionality’

Summary — Judgment of the Court (Second Chamber), 17 October 2013

1. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Penalty in the event of non-surrender of a sufficient number of allowances within the time period — Operator having a sufficient number of allowances — No effect — Force majeure — Conditions

   (European Parliament and Council Directive 2003/87, Art. 16(3) and (4))

2. EU law — Principles — Proportionality — Scope — Discretion of the EU legislature — Judicial review — Limits — Assessment in the light of the material available at the time of adoption of the measure

3. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Penalty in the event of non-surrender of a sufficient number of allowances within the time period — No possibility for the national court to vary the penalty — No infringement of principle of proportionality

   (European Parliament and Council Directive 2003/87, Art. 16(3) and (4))

1.  Article 16(3) and (4) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Directive 96/61 must be interpreted as precluding operators who have not surrendered, by 30 April of the current year, the carbon dioxide equivalent allowances equal to their emissions for the preceding year, from avoiding the imposition of a penalty for the excess emissions for which it provides, even where they hold a sufficient number of allowances on that date.

   Even in the absence of specific provisions, however, recognition of circumstances constituting force majeure is possible. It is then for the referring court to determine whether the operator, despite all due care having been exercised in order to comply with time limits, was faced with unusual and unforeseeable circumstances which were beyond its control and went beyond mere internal breakdown.

   (see paras 31, 32, operative part 1)

2.  See the text of the decision.

   (see paras 34-37)

3.  The penalty for excess emissions provided for by Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Directive 96/61 cannot be considered to be contrary to the principle of proportionality on the ground that there is no possibility for the amount to be varied by a national court.

   Consequently, Article 16(3) and (4) of Directive 2003/87 must be interpreted as meaning that the amount of the lump sum penalty provided for therein may not be varied by a national court on the basis of the principle of proportionality.

   (see paras 38, 42, operative part 2)

Case C‑203/12

Billerud Karlsborg AB

and

Billerud Skärblacka AB v Naturvårdsverket

(Request for a preliminary ruling from the Högsta domstolen)

‛Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — Penalty for excess emissions — Concept of excess emission — Equated with infringement of the obligation to surrender, within the time periods prescribed by the directive, a sufficient number of allowances to cover the emissions from the previous year — No exculpatory cause in the event of actual holding of non-surrendered allowances, unless force majeure — No possibility of varying the amount of the penalty — Proportionality’

Summary — Judgment of the Court (Second Chamber), 17 October 2013

1. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Penalty in the event of non-surrender of a sufficient number of allowances within the time period — Operator having a sufficient number of allowances — No effect — Force majeure — Conditions

   (European Parliament and Council Directive 2003/87, Art. 16(3) and (4))

2. EU law — Principles — Proportionality — Scope — Discretion of the EU legislature — Judicial review — Limits — Assessment in the light of the material available at the time of adoption of the measure

3. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Penalty in the event of non-surrender of a sufficient number of allowances within the time period — No possibility for the national court to vary the penalty — No infringement of principle of proportionality

   (European Parliament and Council Directive 2003/87, Art. 16(3) and (4))

1.  Article 16(3) and (4) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Directive 96/61 must be interpreted as precluding operators who have not surrendered, by 30 April of the current year, the carbon dioxide equivalent allowances equal to their emissions for the preceding year, from avoiding the imposition of a penalty for the excess emissions for which it provides, even where they hold a sufficient number of allowances on that date.

   Even in the absence of specific provisions, however, recognition of circumstances constituting force majeure is possible. It is then for the referring court to determine whether the operator, despite all due care having been exercised in order to comply with time limits, was faced with unusual and unforeseeable circumstances which were beyond its control and went beyond mere internal breakdown.

   (see paras 31, 32, operative part 1)

2.  See the text of the decision.

   (see paras 34-37)

3.  The penalty for excess emissions provided for by Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Directive 96/61 cannot be considered to be contrary to the principle of proportionality on the ground that there is no possibility for the amount to be varied by a national court.

   Consequently, Article 16(3) and (4) of Directive 2003/87 must be interpreted as meaning that the amount of the lump sum penalty provided for therein may not be varied by a national court on the basis of the principle of proportionality.

   (see paras 38, 42, operative part 2)