Case T‑317/12

Holcim (Romania) SA

v

European Commission

(Non-contractual liability — Scheme for greenhouse gas emission allowance trading — Liability for fault — Commission’s refusal to disclose information on and to prohibit all transactions involving emission allowances allegedly stolen — Sufficiently serious breach of a rule of law conferring rights on individuals — Strict liability)

Summary — Judgment of the General Court (Eighth Chamber), 18 September 2014

1.      Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Application for compensation for damage allegedly caused by an EU institution — Factors enabling identification of the conduct of which the institution is accused, the causal link and the reality and certainty of the damage caused

(Statute of the Court of Justice, Arts. 21, first para., and 53, first para.; Rules of Procedure of the General Court, Art. 44(1)(c))

2.      Actions for damages — Autonomous form of action — Exhaustion of national rights of action — Exception — Impossibility of obtaining compensation before a national court — Non-exhaustion preventing examination by the EU judicature of the existence and extent of the damage alleged — Inadmissibility

(Arts 268 TFEU and 340, second para., TFEU; Rules of Procedure of the General Court, Art. 44(1)(c))

3.      Non-contractual liability — Conditions — Sufficiently serious breach of EU law — Discretion of the institution when adopting the measure

(Art. 340, second para., TFEU)

4.      Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Integrated system of registers of the Union and the Member States — Data concerning allowance transactions — Communication and confidentiality — Applicable rules — Exceptions — Reliance thereon by a private company claiming to be a victim of allowance theft — Exclusion

(Commission Regulation No 2216/2004, Art. 10; European Parliament and Council Directive 2003/87, Art. 20)

5.      Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Integrated system of registers of the Union and the Member States — Data concerning allowance transactions — Communication and confidentiality — Applicable rules — No restriction of the right to property

(Charter of Fundamental Rights of the European Union, Arts 17(1), and 52(1); Commission Regulation No 2216/2004, Art. 10; European Parliament and Council Directive 2003/87, Art. 19(3))

6.      Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Integrated system of registers of the Union and the Member States — Possibility of the Commission blocking certain allowances within a registry — Limits

(Commission Regulation No 2216/2004, Arts 27 and 69; European Parliament and Council Directive 2003/87, Art. 20)

7.      Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — Amplification of an existing plea — Lawfulness

(Rules of Procedure of the General Court, Arts 44(1)(c), and 48(2), first para.)

8.      Non-contractual liability — Conditions — Legal measure — Damage arising from the Commission’s refusal to disclose confidential information concerning greenhouse gas emissions allowances and unauthorised transfer of those allowances from the account of the company holding them — No unusual and special damage — Liability of the Union — Exclusion

(Art. 340, second para., TFEU; Commission Regulation No 2216/2004, Art. 10)

1.      See the text of the decision.

(see paras 55, 56, 181)

2.      The admissibility of an action for compensation provided for in Article 268 TFEU and the second paragraph of Article 340 TFEU may be conditional in certain cases on the prior exhaustion of the remedies available under domestic law for obtaining satisfaction from the national authorities, provided that those remedies under domestic law effectively ensure protection for the individuals concerned in that they are capable of resulting in compensation for the damage alleged.

In that regard, whilst the non-exhaustion of domestic remedies does not automatically lead to a finding of inadmissibility by the EU judicature, there is one situation in which the fact that a final ruling has not been given on the action for damages brought before the national court necessarily implies that the action for compensation brought before the EU judicature is inadmissible. This is where that fact precludes the latter from identifying the nature and quantum of the damage pleaded before it, with the result that the requirements of Article 44(1)(c) of the Rules of Procedure are not complied with.

Similarly, where a person has brought two actions before the EU judicature seeking compensation for the same damage, one against a national authority, before a national court, and the other against an EU institution or body, and there is a likelihood that, because of the different assessments of that damage by the two different courts, the person in question may be insufficiently or excessively compensated, the EU judicature must wait until the national court has ruled before deciding on the existence and amount of the damage. Nor can it adjudicate in the meantime on the causal link between the conduct alleged against the European Union and the damage invoked. On the other hand, it may, even before the national court has given its ruling, determine whether the conduct alleged is capable of giving rise to non-contractual liability on the part of the European Union.

(see paras 73-75, 79, 80)

3.      See the text of the decision.

(see para. 87)

4.      A company claiming to be the victim of a theft of greenhouse gas emissions allowances cannot rely on the exceptions to the confidentiality rules concerning information relating to the said allowances laid down in Article 10 of Regulation No 2216/2004 for a standardised and secured system of registries pursuant to Directive 2003/87 and Decision No 280/2004 in order to require the Commission to disclose information concerning the allowances in question.

In the first place, even if Article 20 of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC provides, first, that the central administrator designated by the Commission must conduct an ‘automated check’ on each transaction in registries to ensure there are no irregularities in the transactions relating to allowances and, secondly, that when an ‘irregularity’ has been detected, that authority is to inform the Member State or Member States concerned, neither that article nor indeed any other provision of Directive 2003/87 or of Regulation No 2216/2004 expressly provides that the Commission may disclose information concerning allowances allegedly stolen to the alleged victim of the theft. In that regard, the said Article 20 does not provide for the disclosure of information concerning a transaction vitiated by irregularity. A fortiori, it does not require the Commission to reveal information concerning allowances covered by such a transaction.

Moreover, since such a lifting of confidentiality is not necessary for the correct application of a provision of Directive 2003/87, Regulation No 2216/2004 or a legislative provision applicable in a Member State, the company cannot rely on the exception ratione materiae to the confidentiality rule laid down in Article 10(1) of Regulation No 2216/2004.

In the second place, since the exception under Article 10(2) of Regulation No 2216/2004 applies only to the law enforcement authorities of a Member State, the tax authorities of a Member State, OLAF, Europol and registry administrators of Member States, the exception ratione personae cannot be relied on by a limited company under national law. Moreover, the said exception does not authorise the Commission to disclose to the President of a national court in interlocutory proceedings confidential data contained in the registries. As a judge hearing an application for interim measures, the latter does not enjoy the status of ‘a law enforcement authority’ within the meaning of Article 10(2)a.

(see paras 109, 116-119, 122, 158)

5.      Even if the confidentiality rules on greenhouse gas emissions allowances laid down by Article 10 of Regulation No 2216/2004 could be regarded as a restriction on the exercise of the right to property guaranteed by Article 17(1) of the Charter of Fundamental Rights of the European Union, that restriction must be regarded as being in conformity with the requirements laid down by Article 52(1) of that Charter.

In the first place, those confidentiality rules are laid down in Article 10 of Regulation No 2216/2004, which is consistent with the enabling provisions of Article 19(3) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Directive 96/61. They must therefore be considered to have been provided for by law, within the meaning of Article 52(1) of the Charter of Fundamental Rights of the European Union. Secondly, those rules address the need to preserve business confidentiality, which is an objective in the public interest recognised by the Union. Thirdly, those rules do not lay down disproportionate requirements in relation to the objective pursued; they not undermine the essential content of the right to property and, in themselves, do not directly infringe that right. Nor do they exceed the limits of what is appropriate and necessary to attain the said objective. In relation to an alleged theft of greenhouse gas emission allowances, Article 10 of Regulation No 2216/2004 does not preclude a law enforcement authority from disclosing confidential information necessary to identify the authors of a civil wrong or criminal offence to a natural or legal person which is a victim of the alleged criminal offence. For the purposes of Article 10(2)b of Regulation No 2216/2004, such a person has to be regarded as ‘involved’ so far as concerns considerations put forward in order to obtain the lifting of confidentiality. In addition, Article 10 does not preclude such a person from taking steps, on the basis of the information thus disclosed, for the recovery of its allowances, nor does it render that task unduly complex.

(see paras 113, 154, 165-169, 224)

6.      Article 69 of Regulation No 2216/2004 does not allow access to be blocked to certain holding accounts within a registry. It only allows, in the event of systemic risk, all access to be suspended to a registry in its entirety or to the Community independent transaction log in its entirety. Regulation No 2216/2004 provides for certain allowances within a registry to be blocked in one case only, laid down in Article 27 thereof, namely where, in the case of one of its installations, an operator has not satisfied within the required time-limit the technical rules relating to the report on the quantity of greenhouse gases emitted by that installation, as approved by the competent authority.

Similarly, Article 20 of Directive 2003/87 does not oblige, or even authorise, expressly or by implication, the Commission itself to block the allowances concerned by transactions affected by irregularities within the meaning of the said Article 20. That article requires, first, the Commission, in its capacity as central administrator, to inform the Member States concerned when transactions are affected by ‘irregularities’ and those Member States then not to register those transactions.

(see paras 201, 205, 215)

7.      See the text of the decision.

(see para. 218)

8.      When hearing a compensation action against the European Union in respect of damage caused by a legal measure, the EU judicature does not err in law in not resolving the question of whether there is strict liability under EU law and in rejecting in any event the arguments submitted to it in the absence of proof that the damage relied on was unusual and special. In that regard, damage must be considered unusual if it exceeds the limits of the economic risks inherent in operating in the sector concerned and special if it affects a particular class of economic operators in a disproportionate manner by comparison with other operators.

Application by the Commission of the confidentiality rules for greenhouse gas emissions allowances under Article 10 of Regulation No 2216/2004 to a company which holds those allowances cannot constitute unusual damage. The fact that such rules were laid down in Article 10 and then applied to the company does not constitute an unusual risk in the sector, namely that of economic operators subject to the Community trading allowance scheme. In the absence of such rules, business confidentiality could not be guaranteed, which would compromise the very existence of an allowance market.

Moreover, since it is well known that allowance trading over an open computer system on the internet has technical risks, which are sometimes appreciable, the damage corresponding to the value of the allowances transferred, electronically, without the authorisation of the applicant to accounts other than its own cannot, therefore, in any event, be regarded as exceeding the limits of the economic or technical risks inherent in operating in the sector concerned.

(see paras 235-238)