Joined Cases C-191/14, C-192/14, C-295/14, C-389/14 and C-391/14 to C-393/14

Borealis Polyolefine GmbH and Others

v

Bundesminister für Land-, und Forstwirtschaft-, Umwelt und Wasserwirtschaft and Others

(Requests for a preliminary ruling from the Landesverwaltungsgericht Niederösterreich, the Raad van State (the Netherlands), and the Tribunale amministrativo regionale per il Lazio)

‛References for a preliminary ruling — Scheme for greenhouse gas emission allowance trading in the European Union — Directive 2003/87/EC — Article 10a(5) — Method for allocating allowances — Free allocation of allowances — Method for calculating the uniform cross-sectoral correction factor — Decision 2011/278/EU — Article 15(3) — Decision 2013/448/EU — Article 4 — Annexe II — Validity’

Summary — Judgment of the Court (Second Chamber), 28 April 2016

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

   (Statute of the Court of Justice, Art. 23; Rules of Procedure of the Court of Justice, Art. 83)

2. Questions referred for a preliminary ruling — Assessment of validity — Question on the validity of a decision not having been contested on the basis of Article 263 TFEU — Main action brought by a company not being clearly entitled to bring an action for annulment — Admissibility

   (Arts 263, fourth para., TFEU and 267(b)) TFEU; Commission Decisions 2011/278, Arts 10(9) and 15(4) and 2013/448, Art. 4 and Annex II)

3. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Transitional regime for free allocation of quotas — Method for allocation — Calculation on the basis of the maximum annual amount of such allowances to be allocated — Taking account, when determining that amount, of the emissions of electricity generators — Unlawful

   (European Parliament and Council Directive 2003/87, Art. 10a(3) and (5); Commission Decision 2011/278, Art. 15(3))

4. EU law — Interpretation — Texts in several languages — Uniform interpretation — Differences between the various language versions — Context and purpose of the legislation in question as a basis for reference

5. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Transitional regime for free allocation of quotas — Method for allocation — Calculation on the basis of the maximum annual amount of such allowances to be allocated — Taking account, when determining that amount, of emissions generated by installations subject to the allowance trading scheme before 2013 — Unlawful

   (European Parliament and Council Directive 2003/87, Art. 10a(5), first para., (b)), and Annex I; Commission Decision 2013/448, Art. 4 and Annex II)

6. Questions referred for a preliminary ruling — Assessment of validity — Declaration of invalidity of the provisions of a Commission decision relating to the correction factor applied by the Member States for the purposes of determining the amount of greenhouse gas emissions allowances to be allocated free of charge — Effects — Temporal limitation

   (Arts 264, second para., TFEU and 267 TFEU; European Parliament and Council Directive 2003/87; Commission Decision 2013/448, Art. 4 and Annex II)

7. Questions referred for a preliminary ruling — Assessment of validity — Declaration that an EU act is invalid — Effects — Application of Article 266 TFEU by analogy — Obligations of the EU institutions — Obligation to adopt all the measures necessary to remedy the illegality identified

   (Arts 266 TFEU and 267 TFEU)

8. Questions referred for a preliminary ruling — Assessment of validity — Declaration that an EU act is invalid — Effects — Temporal limitation — Exception in favour of an operator having brought legal action or having made an equivalent claim in accordance with applicable national law

   (Art. 267 TFEU)

1.  See the text of the decision.

   (see para. 40)

2.  See the text of the decision.

   (see paras 46, 49, 50, 58)

3.  The exclusion, for the purposes of determining the maximum annual amount of allowances, of emissions from electricity generators results from Article 10a(5) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community, which does not grant the Commission any discretion in that regard. The reference in Article 10a(5) of that directive to installations which are not covered by paragraph 3 must be understood as referring to installations which are neither electricity generators, installations for the capture of CO2, pipelines for transport of CO2 nor CO2 storage sites.

   Furthermore, such asymmetrical treatment of the emissions of electricity generators and of installations which generate greenhouse gases is consistent with the main objective of Directive 2003/87, which is to protect the environment by means of a reduction of greenhouse gas emissions.

   (see paras 65, 78, 79)

4.  See the text of the decision.

   (see para. 90)

5.  When establishing the maximum annual amount of allowances serving as the basis for calculating the greenhouse gas emissions allowances allocated free of charge, the Commission was required, in accordance with subparagraph (b) of Article 10a(5) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community, to take account only of the emissions from the installations included in the Community system from 2013 onwards. Thus, that provision precludes the taking into account of emissions resulting from the activities listed in Annex I to that directive as from 2013 in so far as those emissions were generated by installations covered by the allowance trading scheme prior to that date.

   Therefore, in so far as the Commission took account, at least in part, of the emissions of installations covered by the allowance trading scheme before 2013 in determining the maximum annual amount of allowances able to be allocated free of charge, that amount does not meet the requirements of subparagraph (b) of Article 10a(5) of Directive 2003/87 in that it is too high. Similarly, the uniform cross-sectoral correction factor laid down in Article 4 of, and Annex II to, Decision 2013/448 concerning national implementation measures for the transitional free allocation of greenhouse gas emissions allowances in accordance with Article 11(3) of that directive is also contrary to that provision. Consequently, Article 4 of, and Annex II to, Decision 2013/448 are invalid.

   (see paras 94, 95, 98, 99, operative part 2)

6.  Where it is justified by overriding considerations of legal certainty, the second paragraph of Article 264 TFEU, which is also applicable by analogy to a request under Article 267 TFEU for a preliminary ruling on the validity of a measure adopted by the EU institutions, confers on the Court a discretion to decide, in each particular case, which specific effects of such a measure must be regarded as definitive.

   The temporal effects of the declaration of invalidity of Article 4 of, and Annex II to, Decision 2013/448 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87 must be limited so as to enable the Commission to adopt the necessary measures, and the measures adopted cannot be called into question. The annulment of the uniform cross-sectoral correction factor laid down in Article 4 of, and Annex II to, Decision 2013/448 is capable of calling into question all of the earlier final allocations of greenhouse gas emission allowances made free of charge in the Member States on the basis of legislation deemed to be valid. Thus, the declaration of invalidity of those provisions risks having serious repercussions on a large number of legal relations established in good faith. Those overriding considerations of legal certainty are capable of justifying the limitation of the temporal effects of that declaration. Moreover, the temporary legal vacuum which would be brought about by the declaration of invalidity could jeopardise the implementation of the allowance trading scheme put in place by Directive 2003/87 and, consequently, the attainment of the objectives pursued by it.

   (see paras 103, 105, 106, 111, operative part 3)

7.  See the text of the decision.

   (see paras 107)

8.  It is for the Court, where it makes use of the possibility of limiting the effect on past events of a declaration in preliminary ruling proceedings that an EU act is invalid, to decide whether an exception to that temporal limitation of the effect of its judgment may be made in favour of the party to the main proceedings which brought the action before the national court against the national measures implementing the EU act, or whether, conversely, a declaration of invalidity applicable only to the future is an adequate remedy even for that party.

   (see para. 108)