Case C‑540/14 P

DK Recycling und Roheisen GmbH

v

European Commission

‛Appeal — Environment — Directive 2003/87/EC — Article 10a — Scheme for greenhouse gas emission allowance trading — Transitional rules for harmonised free allocation of emission allowances from 2013 — Decision 2011/278/EU — National implementation measures submitted by the Federal Republic of Germany — Rejection of the inscription of certain installations on the lists of installations receiving free allocations of emission allowances — Provision relating to cases of ‘undue hardship’ — Implementing powers of the Commission’

Summary — Judgment of the Court (First Chamber), 22 June 2016

1. Judicial proceedings — Request that the oral procedure be reopened — Request to lodge observations on points of law raised by the Opinion of the Advocate General — Conditions for reopening

   (Art. 252, second para., TFEU; Rules of Procedure of the Court of Justice, Art. 83)

2. Appeal — Interest in bringing proceedings — Condition — Appeal capable of procuring an advantage for the party bringing it — Admissibility of a request for substitution of grounds amounting to a defence to a plea raised by the other party

3. Acts of the institutions — Basic legislation and implementing legislation — Implementing legislation not being capable of amending or supplementing the essential elements of the basic legislation — Categorisation of essential elements — Characteristics and particular features of the field concerned taken into account

   (Art. 290 TFEU)

4. Environment — Atmospheric pollution — Directive 2003/87 — Objective — Reduction of greenhouse gas emissions — Compliance with sub-objectives defined by the directive

   (European Parliament and Council Directive 2003/87, as amended by Directive 2009/29, Recitals 5 and 7 and Art. 1)

5. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Transitional regime for free allocation of allowances — Method of allocation fully harmonised on a sectoral basis — Implementing legislation not capable of conflicting with that method of allocation

   (European Parliament and Council Directive 2003/87, as amended by Directive 2009/29, Art. 10a(1))

6. Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — Application to the appeal procedure — Plea raised for the first time in the context of the reply and based on matters of law and of fact that came to light before that procedure — Inadmissible

   (Rules of Procedure of the Court of Justice, Arts 127(1) and 190)

1.  See the text of the decision.

   (see paras 27-29)

2.  See the text of the decision.

   (see paras 42-44)

3.  Provisions which, in order to be adopted, require political choices falling within the responsibilities of the EU legislature cannot be delegated by the legislature. It follows from this that implementing measures adopted by the Commission cannot amend essential elements of basic legislation or supplement it by new essential elements.

   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.

   (see paras 47, 48)

4.  See the text of the decision.

   (see para. 49)

5.  In the allowance trading scheme introduced by Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community, as amended by Directive 2009/29, the sub-objective relating to the preservation of conditions of competition in the internal market is essential.

   Thus, in Article 10a(1) of that directive, the legislature emphasised the requirement of full harmonisation 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.

   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. 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, such as a provision permitting the free allocation of allowances to certain undertakings faced with undue hardship.

   (see paras 50, 52-55)

6.  See the text of the decision.

   (see paras 61-64)