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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> United Kingdom of Great Britain and Northern Ireland v Republic of Poland [2011] EUECJ C-50509_P_O (17 November 2011)
URL: http://www.bailii.org/eu/cases/EUECJ/2011/C50509_P_O.html
Cite as: [2011] EUECJ C-50509_P_O
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OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 17 November 2011 (2)

Case C-505/09 P

European Commission

v

Republic of Estonia

(Appeals - Environment - Atmospheric pollution - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - National emission allowance allocation plan submitted by the Republic of Estonia for the period 2008 to 2012 - Powers of the Member States and of the Commission - Article 9(1) and (3) and Article 11(2) of Directive 2003/87)

I - Introduction

1. The present appeal concerns the system established by 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 2004/101/EC of the European Parliament and of the Council of 27 October 2004 (OJ 2004 L 338, p. 18), (hereinafter 'the Directive').

2. By its appeal, the European Commission requests the Court to set aside seeks the annulment of the judgment of the Court of First Instance of the European Communities (now 'the General Court') in Case T-263/07 Estonia v Commission [2009] ECR II-3463 (hereinafter 'the judgment under appeal') annulling the Commission Decision of 4 May 2007 concerning the national allocation plan for greenhouse gas emission allowances (hereinafter 'NAP') notified by the Republic of Estonia for the period 2008 to 2012 in accordance with Directive 2003/87 (hereinafter 'the contested decision').

II - Legal framework

3. Article 9 of the Directive provides:

'1. For each period referred to in Article 11(1) and (2), each Member State shall develop a national plan stating the total quantity of allowances that it intends to allocate for that period and how it proposes to allocate them. The plan shall be based on objective and transparent criteria, including those listed in Annex III [to the Directive], taking due account of comments from the public. The Commission shall, without prejudice to the Treaty, by 31 December 2003 at the latest develop guidance on the implementation of the criteria listed in Annex III [to the Directive].

For the period referred to in Article 11(1), the plan shall be published and notified to the Commission and to the other Member States by 31 March 2004 at the latest. For subsequent periods, the plan shall be published and notified to the Commission and to the other Member States at least 18 months before the beginning of the relevant period.

2. National allocation plans shall be considered within the committee referred to in Article 23(1) [of the Directive].

3. Within three months of notification of a national allocation plan by a Member State under paragraph 1, the Commission may reject that plan, or any aspect thereof, on the basis that it is incompatible with the criteria listed in Annex III or with Article 10. The Member State shall only take a decision under Article 11(1) or (2) if the proposed amendments are accepted by the Commission. Reasons shall be given for any rejection decision by the Commission.'

4. According to Article 11(2) of the Directive:

'For the five-year period beginning 1 January 2008, and for each subsequent five-year period, each Member State shall decide upon the total quantity of allowances it will allocate for that period and initiate the process for the allocation of those allowances to the operator of each installation. This decision shall be taken at least 12 months before the beginning of the relevant period and be based on the Member State's national allocation plan developed pursuant to Article 9 and in accordance with Article 10, taking due account of comments from the public.'

5. Annex III to the Directive sets out 12 criteria for NAPs. Criteria Nos 1 to 3 and 12 of Annex III provide respectively as follows:

'1.
The total quantity of allowances to be allocated for the relevant period shall be consistent with the Member State's obligation to limit its emissions pursuant to Decision 2002/358/EC and the Kyoto Protocol, taking into account, on the one hand, the proportion of overall emissions that these allowances represent in comparison with emissions from sources not covered by this Directive and, on the other hand, national energy policies, and should be consistent with the national climate change programme. The total quantity of allowances to be allocated shall not be more than is likely to be needed for the strict application of the criteria of this Annex. Prior to 2008, the quantity shall be consistent with a path towards achieving or over-achieving each Member State's target under Decision 2002/358/EC and the Kyoto Protocol.

2.
The total quantity of allowances to be allocated shall be consistent with assessments of actual and projected progress towards fulfilling the Member States' contributions to the Community's commitments made pursuant to Decision 93/389/EEC.

3.
Quantities of allowances to be allocated shall be consistent with the potential, including the technological potential, of activities covered by this scheme to reduce emissions. Member States may base their distribution of allowances on average emissions of greenhouse gases by product in each activity and achievable progress in each activity.

...

12.
The plan shall specify the maximum amount of [certified emission reductions] and [emission reduction units] which may be used by operators in the Community scheme as a percentage of the allocation of the allowances to each installation. The percentage shall be consistent with the Member State's supplementarity obligations under the Kyoto Protocol and decisions adopted pursuant to the UNFCCC or the Kyoto Protocol.'

III - Background to the dispute and the contested decision

6. The facts which preceded the adoption of the contested decision and the operative part of that decision are set out in paragraphs 6 to 9 of the judgment under appeal.

IV - Procedure before the General Court and the judgment under appeal

7. The Republic of Estonia brought an action before the General Court against the contested decision. The proceedings before the General Court are set out in paragraphs 10 to 21 of the judgment under appeal.

8. By the judgment under appeal, the General Court annulled the contested decision in its entirety.

9. First of all, in paragraphs 28 to 34 of the judgment, the General Court rejected the Commission's arguments regarding the partial inadmissibility of the action for annulment.

10. Then, in paragraphs 49 to 94 of the judgment under appeal, the General Court examined the Republic of Estonia's plea alleging that the Commission exceeded its powers by infringing Articles 9(1) and (3) and 11(2) of the Directive. In the first place, it found that the Commission had exceeded the limits of its power of review under Article 9(3) of the Directive, first, by stating in the contested decision a specific quantity of allowances which, if in any way exceeded, was regarded as incompatible with the criteria laid down by the Directive and, secondly, by rejecting the Republic of Estonia's NAP in so far as the total quantity of allowances proposed in it exceeded that threshold. In the second place, it held that the Commission infringed Article 9(3) of the Directive by replacing the Republic of Estonia's analysis in its NAP with its own analysis. Within that context, the General Court also found that the data and assessment methods used by the Commission were not necessarily the most representative. As it considered the plea alleging infringement of Articles 9(1) and (3) and 11(2) of the Directive to be well-founded, the General Court decided that Articles 1(1), 2(1) and 3(1) of the contested decision had to be annulled.

11. Subsequently, in paragraphs 99 to 113 of the judgment under appeal, the General Court found that the Commission had infringed the principle of sound administration when assessing whether the Republic of Estonia's NAP conformed to criterion No 3 of Annex III to the Directive. It considered that the Commission had not established that the calculations contained in that NAO were vitiated by an error. Consequently, it decided that Articles 1(2) and 2(2) of the contested decision had to be annulled.

12. Finally, in paragraph 114 of the judgment under appeal, as it considered that Articles 1(1) and (2), 2(1) and (2) and 3(1) of the contested decision were not severable from the rest of the decision, the General Court stated that the decision had to be annulled in its entirety.

V - Procedure before the Court of Justice and arguments of the parties

13. The Commission appealed against the judgment under appeal. In its appeal it claims that the Court should:

-
set aside the judgment under appeal and

-
order the Republic of Estonia to pay the costs of the proceedings.

14. In its reply to the Commission's appeal, the Republic of Estonia contends that the Court should:

-
dismiss the appeal;

-
order the Commission to pay the costs;

-
if the Court upholds the appeal, refer the case back to the General Court for a ruling on the Republic of Estonia's arguments concerning manifest errors of assessment by the Commission, infringement of Article 175(2)(c) EC and infringement of the obligation to state reasons.

15. By order of 1 June 2010, the Kingdom of Denmark was granted leave to intervene in support of the forms of order sought by the Commission, and the Czech Republic and the Republic of Latvia were granted leave to intervene in support of the forms of order sought by the Republic of Estonia.

16. At the hearing on 29 September 2011, the representatives of the Danish, Estonian and Latvian Governments and of the Commission stated their positions and answered the questions put to them.

VI - The Commission's interest in bringing proceedings

17. On 11 December 2009, that is to say after the annulment of the contested decision and after the Commission lodged its appeal against the judgment under appeal, the Commission adopted a new decision based on Article 9(3) of the Directive. In that new decision, it rejected the Republic of Estonia's NAP, stating its incompatibility with the criteria listed in Annex III to the Directive, without indicating a ceiling for the total quantity of allowances to be allocated. The Republic of Estonia did not contest that new decision. It notified a new NAP on 4 September 2010.

18. In these circumstances, the Commission's interest in bringing proceedings should be examined. The Court may of its own motion raise the objection that a party has no interest in maintaining an appeal on the ground that an event subsequent to the judgment of the General Court removes the prejudicial effect thereof as regards the appellant, and declare the appeal inadmissible or devoid of purpose for that reason. For the appellant to have an interest in bringing proceedings the appeal must be capable, if successful, of procuring an advantage to the party bringing it. (3)

19. In this case, the adoption of the new decision has not had the effect of completely removing the Commission's interest in maintaining the appeal. Of course, any setting aside of the judgment under appeal would not have the effect of reviving the contested decision, which has meanwhile been replaced by the new decision. However, a judgment by the Court of Justice confirming the Commission's interpretation of Article 9(3) of the Directive preserves the Commission's interest. In fact, the Czech Republic, the Republic of Hungary, the Republic of Lithuania and Romania have contested the Commission's decisions rejecting their respective NAPs before the General Court. (4) These proceedings were stayed pending the judgments of the Court of Justice in this case and in Case C-504/09 P Commission v Poland. The Commission's interest in taking action is therefore maintained in view of those proceedings pending before the General Court.

VII - The first plea

20. By its first plea, the Commission contends that the General Court infringed Article 21 of the Statute of the Court of Justice of the European Union and Article 44(1)(c) of the Rules of Procedure.

21. This plea concerns paragraphs 28 to 34 of the judgment under appeal, in which the General Court examined the complaint of inadmissibility raised by the Commission in the proceedings at first instance. The Commission had sought the dismissal of the Republic of Estonia's action as inadmissible in so far as it did not confine itself to seeking only annulment of Articles 1(1) and (2), 2(1) and (2) and 3(1) of the contested decision, but annulment of that decision in its entirety. In the Commission's view, the partial inadmissibility of the Republic of Estonia's action results from the fact that it had only submitted pleas concerning the annulment of Articles 1(1) and (2), 2(1) and (2) and 3(1) of the contested decision and that the other provisions of that decision were severable from it. The General Court rejected that request. It considered that, if the pleas raised by the Republic of Estonia were well founded, the contested decision would have to be annulled in its entirety, since the provisions which form the subject-matter of the pleas put forward were not severable from the rest of the measure.

22. The Commission claims that the General Court infringed Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure by accepting the admissibility of the Republic of Estonia's application for annulment of the contested decision in its entirety. In its view, the pleas relied on by the Republic of Estonia related only to Articles 1(1) and (2), 2(1) and (2) and 3(1) of the contested decision and the other provisions of the contested decision were severable from those provisions.

23. The Commission's first plea must be rejected, although replacing some of the grounds stated by the General Court. Contrary to the approach adopted by the General Court, the Commission's request must be rejected without there being any need to examine the severability of the provisions of the contested decision.

24. The Commission had relied before the General Court on the fact that the Republic of Estonia's application did not comply with the first paragraph of Article 21 of the Statute of the Court of Justice and Article 44(1)(c) and (d) of the Rules of Procedure. According to those articles, the application is not admissible if the applicant does not state with sufficient clarity the subject-matter of the dispute, the form of order sought and the pleas in law on which the form of order is based. The basic legal and factual particulars relied on must be indicated, at least in summary form, coherently and intelligibly in the application itself to enable the defendant to prepare its defence and the General Court to rule on the application, if necessary, without any further information. (5)

25. In this case, the Republic of Estonia had stated the subject-matter of the dispute, the forms of order sought and the pleas relied on with sufficient precision. It was clear that it was seeking the annulment of the contested decision in its entirety and that it considered that that request was justified on the basis of the pleas relied upon in support of the application. The conditions of the first paragraph of Article 21 of the Statute of the Court of Justice and Article 44(1)(c) and (d) of the Rules of Procedure were therefore satisfied.

26. Contrary to the approach adopted by the General Court, it was not necessary to analyse the severability of the provisions of the contested decision when examining the admissibility of the action. In fact, if the severability of the provisions of an act must be analysed in the context of examining the admissibility of the action where the applicant seeks the partial annulment of that act, (6) it must not be analysed in that context, but only in that of the merits of the action where the applicant seeks the annulment of the contested decision in its entirety. The matter of whether the annulment of the act in its entirety is justified in the light of the pleas relied on and the non-severability of the provisions of that act is a question which cannot, logically, be considered until the merits of at least one plea have been examined and relates, therefore, to the merits of the action. Moreover, such an approach seems, to me, to be required for reasons of procedural economy. First, it is unnecessary to examine the matter of the severability of the provisions of an act where all the pleas relied on against that act must be rejected. Secondly, it is clear that, even if the General Court had upheld the Commission's request by finding that the action was 'inadmissible' in respect of certain provisions of the contested decision, it would still have had to examine all the pleas submitted by the Republic of Estonia.

27. The Commission's first plea must therefore be rejected, replacing the General Court's grounds in paragraphs 28 to 34 of the judgment under appeal.

VIII - The second plea

28. The Commission's second plea alleges an error of law in the interpretation of Articles 9(1) and (3) and 11(2) of the Directive.

29. This plea relates to the General Court's reasoning in paragraphs 49 to 94 of the judgment under appeal. In paragraphs 49 to 55 of that judgment, the General Court first made some observations about the allocation of powers between the Member States and the Commission. Then, in paragraphs 56 to 86 of the judgment under appeal, it examined the Commission's exercise of its powers in this case. After briefly summarising the content of the contested decision in paragraphs 57 and 58 of the judgment under appeal, the General Court found, in paragraphs 60 to 94 of that judgment, that the Commission had exceeded the limits of its power of review under Article 9(3) of the Directive. In the first place, it criticised the Commission for stating a specific quantity of allowances, any exceeding of which is regarded as incompatible with the criteria laid down by the Directive, and for rejecting the Republic of Estonia's NAP in so far as the total quantity of allowances proposed in it exceeded that threshold. In the second place, the General Court criticised the Commission for not confining itself to reviewing the legality of the Republic of Estonia's NAP but actually replacing that Member State's analysis by its own analysis. Then, the General Court criticised the choice of emissions data serving as a starting point for the purposes of the forecasts for the period in question and the choice of methods used for the purposes of forecasting the evolution of emissions between the reference period and the period in question. Finally, the General Court rejected the other arguments put forward by the Commission to justify its rejection of the NAP.

30. In the preliminary observations concerning its second plea in law, the Commission first criticises the General Court for classifying the Commission's review under Article 9(3) of the Directive as a directive transposition review (A). Next, the plea submitted by the Commission is divided into two parts, the first of which alleges infringement of the principle of equal treatment (B) while the second alleges disregard of the subject-matter and purpose of the Directive (C).

A - The nature of the Commission's review under Article 9(3) of the Directive

31. First of all, the Commission's criticisms concerning the nature of the Commission's review under Article 9(3) of the Directive should be examined.

32. These criticisms relate to the General Court's reasoning in paragraphs 49 to 56 of the judgment under appeal. In paragraph 50 of that judgment, the General Court pointed out, first, that administrative measures must be adopted in compliance with the competences attributed to the various administrative bodies. Then, in paragraphs 51 and 52 of the judgment under appeal, it referred to the third paragraph of Article 249 EC (now third paragraph of Article 288 TFEU) and held that, in the field of the environment, which is governed by Articles 174 EC to 176 EC (now Articles 191 TFEU to 193 TFEU), the European Union and the Member States share competence. It concluded that, where there is no Community rule which prescribes clearly and precisely the form and methods which Member State must use, the Member States are, in principle, completely free to choose the form and methods and that it is therefore for the Commission to prove to the required legal standard that the instruments used by the Member States are contrary to European Union law. As to the powers of the Member States, the General Court found in paragraph 53 of the judgment under appeal that the Member States alone have the power, first, to draw up the NAP and, secondly, to take final decisions fixing, in particular, the total quantity of allowances. In the exercise of those powers, the Member State would have a certain room for manoeuvre. In paragraphs 54 and 55 of the judgment under appeal, the General Court found that, under Article 9(3) of the Directive, the Commission is authorised, first, to verify whether the NAPs conform to the criteria set out in the Directive and, secondly, to reject NAPs on the grounds of incompatibility. As is clear from paragraph 56 of the judgment under appeal, the General Court considered the Commission's review to be a legality review.

33. In its second plea, the Commission criticises the General Court for classifying its review under Article 9(3) of the Directive as a legality review. Before examining that criticism (2), I should like, first of all, to outline briefly the NAP review procedure established by Articles 9 and 11 of the Directive (1).

1. The NAP review procedure

34. Article 1 of the Directive establishes a Community scheme for greenhouse gas emission allowance trading in order to promote reductions of greenhouse gas emissions in a cost-effective and economically efficient manner.

35. Under that scheme, each Member State is to develop an NAP stating, inter alia, the total quantity of allowances that it intends to allocate for the trading period in question and how it proposes to allocate them. According to the second sentence of Article 9(1) of the Directive, the NAP must be based on objective and transparent criteria, including those listed in Annex III to the Directive, taking due account of comments from the public. The Member States must notify their NAPs to the Commission and to the other Member States at least 18 months before the beginning of the relevant period.

36. According to Article 9(3) of the Directive, the Commission is to verify whether the notified NAPs are compatible with the criteria listed in Annex III and with Article 10 of the Directive and reject those that are not. Article 11(2) of the Directive indicates that a Member State can base its final decision on the total quantity of allowances that it will allocate for the period in question on an NAP that the Commission has approved or not rejected within a period of three months from its notification. On the other hand, a Member State cannot base its final decision on an NAP that the Commission has rejected. The Commission therefore has a blocking power.

1. The Commission's criticisms

37. The General Court rightly found that the Commission's review of NAPs under Article 9(3) of the Directive is a legality review. As the General Court pointed out in paragraphs 53 and 54 of the judgment under appeal, it follows unequivocally from that provision that the Commission's role is limited to reviewing the conformity of the Member State's NAP with the criteria set out in Annex III and the provisions of Article 10 of the Directive. To reject an NAP, the Commission must therefore prove that the Member State exceeded the margin for manoeuvre accorded to it by the Directive.

38. The Commission's criticism of the General Court's reasoning is unfounded.

39. First, it cannot be inferred from the ex ante nature of the review under Article 9(3) of the Directive that it goes beyond a review of conformity. Of course, the Directive attributes an important role to the Commission, which has, in particular, a power to review and block. However, Article 9(3) of the Directive does not confer on it the power to substitute itself for a Member State in respect of the drawing up of its NAP or the adoption of its final decision on the allowances to be allocated. Therefore the Commission can reject an NAP only where it proves that the Member State has exceeded the margin for manoeuvre afforded to it by the Directive.

40. Secondly, the General Court rightly found that the characterisation of the review under Article 9(3) of the Directive as a conformity review is in the spirit of the third paragraph of Article 249 EC, according to which a directive is binding on all Member States as to the result to be achieved whilst leaving to the national authorities the choice of form and methods. Contrary to the Commission's claim, that rule is applicable in this case.

41. First of all, the Commission's argument that the third paragraph of Article 249 EC is applicable only to a subsequent review such as that carried out in the context of proceedings concerning a failure to fulfil obligations must be rejected. That rule is applicable generally. It must therefore be taken into account in this case, where it is a question of assessing whether the Commission is required to respect the Member States' choice of the data and methods used to draw up their NAPs.

42. Secondly, the Commission's argument that the Member States cannot have any margin for manoeuvre because the third paragraph of Article 249 EC is not applicable on account of the 'legislative' nature of Article 9(3) of the Directive must be rejected. In the Commission's view, a provision of a directive which is intended to apply only between the institutions and the Member States, the applicability of which does not therefore depend on its being previously transposed into national law, is 'legislative' in nature. That argument is not convincing. The third paragraph of Article 249 EC applies to all provisions of a directive and also, therefore, to provisions intended to be applied only between the institutions and the Member States. Moreover, the Commission does not give any convincing reason why a provision such as Article 9(3) of the Directive should leave the Member States no margin for manoeuvre regarding form and methods when those aspects were not harmonised in the Directive. In any event, the General Court's approach is justified, given the fact that the Directive was adopted in an area of shared competence in which the Member States remain competent in so far as an aspect has not been harmonised.

43. Thirdly, the Commission cannot successfully claim that it has discretion in that it is required to make its own complex economic and ecological assessments as part of its review of NAPs under Article 9(3) of the Directive and that that discretion limits the Member States' margin for manoeuvre. The Commission's discretion cannot alter the nature of the review provided for by Article 9(3) of the Directive as a conformity review. The Commission's discretion therefore allows it to determine a point of comparison based on the data and methods of its choice which it can use to prove that the NAPs are not compatible with the criteria listed in Annex III and Article 10 of the Directive. However, it does not allow it to reject a Member State's NAP on the sole ground that it does not conform to the point of comparison that it has chosen.

44. The criticisms of the General Court's preliminary observations in paragraphs 49 to 56 of the judgment under appeal must therefore be rejected.

B - The first part, alleging infringement of the principle of equal treatment

45. The first part of the Commission's second plea concerns the General Court's finding that the Commission infringed Article 9(3) of the Directive by substituting its own analysis for the Republic of Estonia's analysis. That part is divided into two complaints alleging, first, infringement of the principle of equal treatment (1) and, secondly, an error of law by the General Court concerning the data replaced by the Commission (2).

1. The complaint alleging infringement of the principle of equal treatment

46. In the proceedings before the General Court, the Commission defended its interpretation of Article 9(3) of the Directive, according to which it was not obliged to examine the data submitted by the Republic of Estonia in its NAP, by arguing that the principle of equal treatment obliged it to use data issuing from the same sources and assessment methods for the NAPs of all the Member States.

47. The General Court rejected this argument in paragraphs 87 to 90 of the judgment under appeal. It considered that the principle of equal treatment cannot alter the division of powers between the Commission and the Member States laid down by the Directive, under which the Member States have competence to draw up their NAPs and to take the final decision on the quantity of allowances to be allocated. The Commission's power of review was therefore limited to reviewing the conformity of the data contained in the NAP with the criteria listed in Annex III to the Directive. Consequently, the Commission could not limit itself to replacing the data contained in the NAP with its own data. Moreover, the Commission could ensure equal treatment between the Member States by examining the NAP submitted by each of them with the same degree of diligence.

48. The Commission complains that the General Court misinterpreted its power of review under Article 9(3) of the Directive and infringed the principle of equal treatment. It claims that it is obliged to use up-to-date data issuing from the same source and forecasts relating to the same period for all the Member States in order to ensure equal treatment of all the NAPs.

49. The complaint that the extent of the Commission's power of review under Article 9(3) of the Directive has been misinterpreted (a) should be examined before the criticism regarding infringement of the principle of equal treatment (b). Finally, I shall examine the other criticisms of the General Court's reasoning (c).

(a) The extent of the Commission's power of review

50. In the first place, the Commission complains that the General Court misinterpreted its power of review under Article 9(3) of the Directive. It considers that it is itself authorised to determine the parameters for assessing the conformity of the data contained in the NAP with the criteria listed in Annex III to the Directive. In its view, consequently, it is not obliged to verify the veracity of the economic data used in the NAP.

51. The Commission's complaint is unfounded. The General Court rightly held that the Commission had to verify whether the economic data included by the Republic of Estonia in its NAP conformed to the criteria listed in Annex III to the Directive.

52. As has been stated above, Article 9(3) of the Directive confers on the Commission only a conformity review power enabling it to reject a Member State's NAP which does not conform to the criteria listed in Annex III or the provisions of Article 10 of the Directive. (7)

53. As for the extent of the review, the General Court rightly found in paragraphs 68, 69, 75, 79 and 80 of the judgment under appeal that Annex III to the Directive lists the criteria that a Member State must respect in its NAP without, however, specifying the forms and methods to be used to assess the conformity of the NAP with those criteria. The Member States therefore remain free to use the data and assessment methods of their choice, provided that they do not produce results which do not conform to those criteria. In the context of its review under Article 9(3) of the Directive, the Commission must respect the Member States' margin for manoeuvre. It follows that it cannot reject the NAP of a Member State on the sole ground that the data included in it do not conform to the data of its choice, but must prove that the data included in the NAP do not conform to the criteria listed in Annex III to the Directive.

54. The arguments submitted by the Commission in support of its position are not convincing.

55. First, the Commission's argument that it was not obliged to examine the data included in the Republic of Estonia's NAP because it had stressed to the Member States the importance of verified data of actual emissions should be rejected. Such an approach would be justified in a system enabling the Commission to substitute itself for the Member States or to determine itself the parameters applicable to the assessment of the conformity criteria. However, the Directive does not confer such powers on the Commission. If the Commission had doubts about the conformity of the data included in the NAP, it was incumbent on it to prove the non-conformity of those data with the criteria listed in Annex III to the Directive.

56. Secondly, it cannot be inferred from the simultaneity of the Commission's reviews of the NAPs of the various Member States that the Directive confers on it the power to replace the data included in the NAP by a Member State with the data of its own choice.

57. Thirdly, a teleological interpretation drawing attention to the purpose of Article 9(3) of the Directive cannot justify the Commission's approach according to which it is not obliged to examine the data included by the Republic of Estonia in its NAP.

58. There is no basis for such an approach in recital 30 in the preamble to the Directive. That recital provides only that the greenhouse gas emission allowance trading scheme cannot be implemented sufficiently by the Member States acting individually and that it can therefore be better achieved at Community level.

59. Next, the argument that, by proceeding in a manner other than that proposed by the Commission, the Directive's objectives cannot be achieved must be rejected. In an area of shared competence such as that of environmental protection, it is for the European Union's legislature to determine the measures that it considers to be necessary to achieve the objectives pursued whilst respecting the principles of subsidiarity and proportionality. Where the legislature's choice is indicated clearly and unequivocally by the act concerned, it is not for the European Union's courts to replace the legislature's assessment with their own by means of a teleological interpretation.

60. The wish of the European Union's legislature to confer only a conformity review power and not a power of substitution or of uniformisation on the Commission is apparent both from the clear and unequivocal wording of Article 9(3) of the Directive and from its travaux préparatoires. (8) The interpretation of Article 9(3) of the Directive put forward by the Commission therefore exceeds the limits of a teleological interpretation. It is for the European Union's legislature to amend that provision if it considers that it does not enable the objectives pursued to be achieved. (9)

61. The criticism alleging an erroneous view of the extent of the Commission's power of review under Article 9(3) of the Directive must, accordingly, be rejected.

(b) Principle of equal treatment

62. In the second place, the Commission claims that the General Court infringed the principle of equal treatment.

63. This claim is unfounded.

64. The principle of equal treatment 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. The elements which characterise different situations, and hence their comparability, must be determined and assessed in the light of the subject-matter and purpose of the European Union act which makes the distinction in question. (10)

65. However, it is clear that the Commission's claim is based an erroneous view of its power of review under Article 9(3) of the Directive. Contrary to the Commission's claim, that provision does not authorise it to determine the economic parameters to be used to assess the conformity of an NAP with the criteria listed in Annex III to the Directive. As has been explained above, the Directive leaves the Member States a margin for manoeuvre and they are free to apply the data and assessment methods of their choice, provided that that choice does not produce results which do not conform to those criteria. Any differences between the choices of the Member States are an expression of their margin for manoeuvre which the Commission must respect in the context of its conformity review. The Commission does not therefore infringe the principle of equal treatment by accepting the different choices of the Member States in so far as they do not exceed the limits of their margin for manoeuvre.

66. The claim alleging infringement of the principle of equal treatment must therefore be rejected.

(c) The limits on amendment of an NAP

67. In the third place, the Commission's criticism that the General Court erred in law by accepting the unlimited possibility of amending NAPs must be examined. The Commission considers that, in view of the silence of the Directive on the possibility of making amendments to NAPs other than those designed to adapt it on the basis of the Commission's rejection decision, the possibility of amending NAPs should not be admitted because it would jeopardise the operation of the allowance trading system and would encourage the Member States to delay the notification of their NAPs or to notify an incomplete NAP in order to be able to use more favourable data.

68. That criticism must be rejected. It cannot cast doubt on the General Court's finding that the Commission was obliged to review the conformity of the data contained in the Republic of Estonia's NAP with the criteria listed in Annex III to the Directive and that it could not therefore limit itself to replacing the data contained in that NAP with its own data. In fact, the question of the extent to which a Member State can alter an NAP after it has been notified to the Commission bears no direct relation to the extent of the Commission's power of review at the time of its examination of that Member State's initial NAP.

(d) Conclusion

69. The complaint concerning the General Court's finding that the Commission infringed Article 9(3) of the Directive by replacing the analysis made by the Republic of Estonia with its own analysis must, therefore, be rejected as unfounded.

2. The complaint concerning the data replaced by the Commission

70. The Commission complains that the General Court criticised it for using the CO2 emission data and gross domestic product (GDP) forecasts of its choice. The General Court itself held that the Commission should have used the most recent data possible. It could not therefore have used the data contained in the Republic of Estonia's NAPs.

71. That complaint is unfounded. It is based on an erroneous interpretation of the judgment under appeal. It is clear from that judgment that the General Court did not object to the Commission devising its own economic and ecological model based on the data of its choice. However, it considered that the Commission was not entitled to reject the Republic of Estonia's NAP on the sole ground that the figures included in the NAP, which were based on the data and assessment model chosen by that Member State, exceeded the figures based on the data and assessment model chosen by the Commission, but that the Commission should have stated reasons why the data contained in the Republic of Estonia's NAP did not conform to the criteria listed in Annex III to the Directive.

C - The second part, alleging disregard of the objectives of the Directive

72. The second part of the second plea alleges disregard of the objectives pursued by the Directive when interpreting the scope and extent of the Commission's powers of review on the basis of Article 9(3) of the Directive.

73. This part relates to the General Court's reasoning in paragraphs 59 to 66 of the judgment under appeal, where the General Court found that the Commission exceeded the limits of its power of review under Article 9(3) of the Directive by stating in the contested decision a specific quantity of allowances any exceeding of which was regarded as incompatible with the criteria laid down by the Directive, and by rejecting the Republic of Estonia's NAP in so far as the total quantity of allowances proposed in it exceeded that threshold.

74. The Commission argues that the objective and purpose of the Directive cannot be achieved if it does not have the power to set such an upper limit and that its approach is justified on the grounds of procedural efficiency. It claims that the General Court did not correctly distinguish between the Commission's setting of an upper limit and the determination of the quantity of allowances to be allocated by the Member State.

75. This part of the plea is unfounded.

76. The General Court rightly held that the Directive does not confer on the Commission the power to set an obligatory upper limit on the allocation of allowances in a rejection decision. As explained above, the Member States are responsible for drawing up NAPs and adopting the final decision. The Commission's powers are limited to reviewing the conformity of the NAPs, enabling it to block NAPs which do not conform to the criteria listed in Annex III and Article 10 of the Directive. The General Court therefore rightly found that the Commission substituted itself for the Republic of Estonia by setting an upper limit on the allocation of allowances and that it thus encroached upon the powers of that Member State.

77. The Commission's criticisms of the General Court's reasoning are unconvincing.

78. First, the Commission's argument that it did not encroach upon the Republic of Estonia's powers under Article 11(2) of the Directive by setting an upper limit on the allocation of allowances because the Republic of Estonia still had the possibility of setting a total quantity of allowances to be allocated which was identical to or lower than that upper limit must be rejected. In fact, if the Commission had such a power, it could impose on Member States the data and assessment methods of its choice regarding the total amount of allowances to be allocated. However, the Directive does not confer such a power on it but leaves the Member States a margin for manoeuvre as regards choice of data and assessment methods.

79. Secondly, the Commission's complaint that the General Court did not sufficiently take into account the need to ensure the smooth operation of the emission allowance trading system must be rejected. As stated above, the wish of the European Union's legislature to confer only a conformity review power on the Commission is clear from the Directive. Consideration of the smooth operation of the trading system does not justify conferring on the Commission additional extra legem powers.

80. Thirdly, the Commission's objection that it is possible to prove ex post that the unconditional recognition of the data on CO2 emissions and of the proposed total quantity of allowances to be allocated stated in the Republic of Estonia's NAP not only produced a result which is contrary to criteria Nos 1 and 3 of the Directive but also had an inflationary effect on CO2 emission allowances on the market seems to be based on a misinterpretation of the judgment under appeal. In fact, the General Court recognised that the Commission can reject an NAP which does not conform to the criteria listed in Annex III to the Directive and did not therefore consider that the Commission had to recognise the data included in the Estonian NAP unconditionally.

81. Fourthly, the Commission argues that an interpretation of Article 9(3) of the Directive to the effect that it has the power to set an upper limit on the quantity of allowances to be allocated is justified on grounds of procedural efficiency. That would avoid successive decisions to reject NAPs because of their incompatibility with the criteria specified in Annex III to the Directive and would enable the Member States to adopt the final decision under Article 11(2) of the Directive within the periods laid down. In this context, the Commission claims that the General Court misunderstood the legal significance of the upper limit referred to in Article 2 of the contested decision and that that statement merely had the consequence of limiting its decision-making power. By stating that amount, it would itself merely have been obliged not to reject an amended NAP if the quantity of allowances proposed in the NAP was lower than or equal to the upper limit for allowances stated in the contested decision.

82. That argument must also be rejected as unfounded.

83. It should be noted, first of all, that the Commission's rejection of an NAP requires the Member State concerned to amend its NAP. The Commission cannot substitute itself for the Member State in this regard and cannot therefore amend a Member State's NAP in its place.

84. However, the obligation to state reasons laid down in the third sentence of Article 9(3) of the Directive obliges the Commission to state the reasons why it considers that the rejected NAP does not conform to the criteria specified in Annex III and Article 10 of the Directive.

85. Nothing in the Directive precludes the Commission from making proposals or recommendations in the statement of reasons for rejecting a decision. It may therefore state the level of allowances that it considers to be in conformity with the criteria listed in Annex III to the Directive provided that it is not imposed as a mandatory requirement on the Member State concerned. In fact, in view of the relatively short period that the Member State has in which to amend its rejected NAP, such a statement can be justified by the principle of loyal cooperation.

86. Moreover, the Commission does not exceed the powers conferred by Article 9(3) of the Directive if it announces in the operative part of a rejection decision that it will not reject an amended NAP which conforms to the proposals and recommendations made in that rejection decision. Such a procedure can be justified by the principle of loyal cooperation and the requirements of procedural economy.

87. On the other hand, the Commission exceeds the powers provided for in Article 9(3) of the Directive where it sets a compulsory upper limit on allowances in the rejection decision. By proceeding in this manner, the Commission exceeds the limits of its conformity review and encroaches upon the powers of the Member States.

88. The General Court rightly found in this case that the Commission exceeded the limits of its power under Article 9(3) of the Directive. In fact, the Republic of Estonia, to which the contested decision was addressed, could not but consider that the setting of an upper limit on allowances in Article 2 of the contested decision was restrictive. In Article 3(3) of the contested decision, the Commission had stated that any amendment to the NAP other than those required in Article 2 was inadmissible. The amendment concerning the upper limit on allowances to be allocated which was provided for in that article was based on data and assessment methods chosen by the Commission. Since the Commission did not take care to examine whether the data included by the Republic of Estonia in its NAP conformed to the criteria listed in Annex III to the Directive, the Republic of Estonia could not expect that the Commission would examine the data included in its amended NAP that did not observe the upper limit stated in Article 2 of its rejection decision.

89. The second part of the second plea must therefore be rejected.

D - Conclusion

90. Consequently, the second plea must be rejected in its entirety.

IX - The third plea

91. By its third plea, the Commission complains that the General Court erred in law in its interpretation of the scope and extent of the principle of sound administration.

92. This plea relates to paragraphs 99 to 112 of the judgment under appeal, where the General Court criticised the Commission for infringing the principle of sound administration. The General Court's criticism concerns the Commission's finding that the Republic of Estonia's NAP did not comply with criterion No 3 of Annex III to the Directive owing to the non-inclusion of a reserve of allowances drawn up by the Republic of Estonia. In paragraphs 103 to 108 of the judgment under appeal, the General Court first examined the figures submitted by the Republic of Estonia in its NAP and held that the figures appeared coherent and comprehensible. Then, in paragraphs 109 to 111 of the judgment under appeal, the General Court examined whether, given those figures, the Commission had examined, with care and impartiality, all the relevant aspects of the individual case. In the first place, it found that the Commission's argument that the allowances contained in the reserves in question were not included in the total quantity of allowances did not seem to be reconcilable with the information on the Court's file. In the second place, the General Court criticised the Commission for not explaining on what basis it had arrived at the conclusion that the Republic of Estonia's NAP did not comply with criterion No 3 of Annex III to the Directive. It inferred from this that the Commission had not established in what way the calculations contained in the Estonian NAP were vitiated by error.

93. Contrary to the Commission's claim, the General Court did not commit an error of law in its interpretation of the principle of sound administration.

94. First, the Commission's complaint that the General Court found that the Commission was not entitled to use its own data is based on a misinterpretation of the judgment under appeal. The General Court did not criticise the Commission for using its own data. It criticised it for not properly examining the data submitted by the Republic of Estonia in its NAP.

95. Secondly, the Commission's claim that it was entitled to consider that the total quantity proposed in the Republic of Estonia's NAP was incompatible with criterion No 3 of Annex III to the Directive because of the NAP's ambiguity regarding the inclusion of certain parts of the reserves must be rejected.

96. That approach is in conformity neither with the principles of sound administration and loyal cooperation nor with the role conferred on the Commission by the Directive. In fact, it is clear from those provisions that, in the context of the conformity review under Article 9(3) of the Directive, the Commission must examine, with care and impartiality, all the relevant aspects of the NAP. Where there is an ambiguous aspect in the NAP, the Commission cannot simply reject the NAP. On the contrary, it is incumbent on it to take the necessary steps to determine whether that aspect is contrary to or in conformity with the criteria listed in Annex III to the Directive. In that context, the Commission must examine, inter alia, all the information contained in the NAP.

97. Contrary to the Commission's claim, that obligation is not at variance with the distribution of powers between the Member States and the Commission. Of course, the Commission has no competence to draw up an NAP. However, it is obliged by Article 9(3) of the Directive to carry out a conformity review. By taking the necessary steps to examine all the aspects of an NAP with care and diligence, the Commission does not exceed the limits of such a review and does not therefore encroach upon the powers of the Member States.

98. Thirdly, the Commission cannot successfully argue that the General Court itself found that the NAP contained ambiguous aspects. First of all, it must be emphasised that the General Court pointed out that that ambiguity could be removed by examining the other information on the Court's file. In any event, even when faced with such an ambiguity, the Commission should first have taken the steps necessary to resolve it and could not merely reject the NAP as non-compliant.

99. Therefore, the third plea is unfounded.

X - The fourth plea

100. By its fourth plea, the Commission claims that the General Court erred in law in so far as it considered that the provisions of the contested decision were not severable and that that decision had therefore to be annulled in its entirety.

101. This plea concerns paragraphs 114 and 31 to 34 of the judgment under appeal, where the General Court found that a partial annulment relating only to Articles 1(1) and (2), 2(1) and (2) and 3(1) of the contested decision would alter the very substance of the remaining provisions of that decision.

102. In the Commission's view, those provisions were severable from the other provisions of the contested decision. It claims that a partial annulment relating only to those provisions would not have changed the contested decision into a decision that it had not intended to adopt.

103. The fourth plea must be rejected.

104. According to the Court's case-law, the partial annulment of an act of an institution requires that the annulled provisions of the act may be severed from the other provisions and that that partial annulment of the act does not alter its substance. (11) The substance of the act is altered where its author, from an objective point of view, would not have adopted that act in its amended form.

105. The General Court rightly found that partial annulment relating only to Articles 1(1), 2(1) and 3(1) of the contested decision would have altered its substance.

106. First, the General Court rightly found that the various paragraphs of Articles 1 and 2 of the contested decision were not severable. Although the various paragraphs of those articles refer to different aspects of the NAP and to different criteria in Annex III to the Directive, it follows from the structure of Articles 1 and 2 of the contested decision that a partial annulment relating only to paragraph 1 of those articles would have had the effect of altering the substance of those articles. Article 1 of the contested decision contained an exhaustive list of the Commission's objections concerning the conformity of the Republic of Estonia's NAP with the criteria listed in Annex III to the Directive. As the General Court found, a partial annulment relating only to paragraph 1 of that article would have had the effect of restricting that exhaustive list. Article 2 of the contested decision contained the Commission's undertaking not to oppose the Republic of Estonia's NAP if it amended its NAP on the basis of the suggestions put forward in paragraphs 1 to 4. A partial annulment relating only to paragraph 1 of that article would have had the effect of reducing the number of amendments subject to which the Commission's undertaking was initially given.

107. However, it follows both from the contested decision and from the positions taken by the Commission before the General Court that the Commission was not prepared to accept the quantity of allowances that the Republic of Estonia had proposed in its NAP, as it considered it to be excessive. This is confirmed ex post by the fact that the Commission adopted a new decision by which it rejected the Republic of Estonia's NAP on account, in particular, of the incompatibility of the maximum number of allowances with criteria Nos 1 and 3 of Annex III to the Directive. Consequently, the General Court rightly found that a partial annulment relating only to Articles 1(1) and 2(1) of the contested decision would have altered its substance.

108. Secondly, the General Court rightly found that Article 3(3) of the contested decision is not severable from Articles 1 and 2. There is a close link between that provision and Articles 1 and 2 of the contested decision. In fact, that provision refers to the amendments that the Commission considers to be necessary to remedy the incompatibilities established in Article 1 of that decision, but which are at variance with the proposals put forward by the Commission in Article 2 thereof.

109. Thirdly, as to the severability of Article 3(2) of the contested decision, relating to amendments concerning allowances allocated to certain installations, it is clear that the separate maintenance of that part of the contested decision would also have altered the substance of the decision. As stated above, (12) a Member State can base its final decision on an NAP which has not been contested by the Commission within the context of the review provided for in Article 9(3) of the Directive. A decision in which only Article 3(2) of the contested decision had been maintained would be a decision in which the Commission had raised no objection relating to criteria Nos 1 to 3, 5, 6, 10 and 12 of Annex III to the Directive. The Republic of Estonia would therefore have been able to base its final decision under Article 11(2) of the Directive on its initial NAP. However, it is clear from the contested decision and from the positions taken by the Commission before the General Court that it did not intend to adopt such a decision.

110. The General Court did not therefore err in law by finding that Articles 1(1), 2(1) and 3(1) of the contested decision were not severable from the other provisions of that decision. (13)

111. The Commission's fourth plea must accordingly be rejected as unfounded.

XI - Conclusion

112.
In the light of the foregoing considerations, I propose that the Court of Justice should:

1)
dismiss the appeal of the Commission against the judgment of the Court of First Instance in Case T-263/07 Estonia v Commission [2009] ECR II-3463;

2)
order the Commission to pay the costs of the Republic of Estonia and its own costs;

3)
order the Kingdom of Denmark, the Czech Republic and the Republic of Latvia to pay their own costs.

2 -
Original language: Slovenian; language of the proceedings: Estonian.

3 -
Case C-19/93 P Rendo and Others v Commission [1995] ECR I-3319, paragraph 13, and Case C-535/06 P Moser Baer India v Council [2009] ECR I-7051, paragraph 24.

4 -
Case T-194/07 Czech Republic v Commission, OJ 2007 C 199, p. 38; Case T-221/07 Hungary v Commission OJ 2007 C 199, p. 41; Case T-368/07 Lithuania v Commission OJ 2007 C 283, p. 35; Case T-483/07 Romania v Commission, OJ 2008 C 51, p. 56; and Case T-484/07 Romania v Commission OJ 2008 C 51, p. 57.

5 -
Case T-113/96 Dubois et Fils v Council and Commission [1998] ECR II-125, paragraph 29, and Case T-45/06 Reliance Industries v Council and Commission [2008] ECR II-2399, paragraph 70.

6 -
Case C-244/03 France v Parliament and Council [2005] ECR I-4021 and Case C-36/04 Spain v Council [2006] ECR I-2981.

7 -
See points 37 to 44 of this Opinion.

8 -
See p. 12 of Commission proposal COM(2001) 581, of 23 October 2001, from which it is clear that the determination of the total quantity of allowances to be allocated must essentially be left to the discretion of the Member States, who must, however, respect the criteria laid down in Annex III to the Directive, and that those criteria can subsequently be revised by the European Union's legislature in the light of the experience acquired in implementing the Directive.

9 -
In this context, it should be noted that the European Union's legislature amended precisely that aspect of the Directive. Article 9 of the Directive, as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community (OJ 2009 L l40, p. 63), provides that the Community-wide quantity of allowances issued each year starting in 2013 is to decrease by a linear factor of 1.74 % compared to the average annual total quantity of allowances issued by Member States in accordance with the Commission Decisions on their NAPs for the period 2008 to 2012 beginning from the mid-point of the period 2008 to 2012.

10 -
Case C-127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I-9895, paragraphs 23 and 26.

11 -
. - Case C-29/99 Commission v Council [2002] ECR I-11221, paragraph 45; Case C-239/01 Germany v Commission [2003] ECR I-10333, paragraph 33; and France v Parliament and Council, cited above in footnote 5, paragraph 13.

12 -
Point 36 of this Opinion.

13 -
There is therefore no need to consider whether Articles 1(2) and 2(2) of the contested decision were severable from the other provisions of that decision.

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