Case T‑359/19
Daimler AG
v
European Commission
Judgment of the Court (Second Chamber, Extended Composition), 15 September 2021
(Environment – Regulation (EC) No 443/2009 – Implementing Regulation (EU) No 725/2011 – Implementing Decision (EU) 2015/158 – Implementing Decision (EU) 2019/583 – Carbon dioxide emissions – Testing methodology – Passenger cars)
1. Environment – Air pollution – Regulation No 443/2009 – Emission performance standards for new passenger cars – Reduction of carbon dioxide emissions through the use of innovative technologies – Procedure for the approval and certification of those technologies – Ad hoc review by the Commission – Use of a different testing methodology from that used during the approval procedure – Not permissible – Infringement of the principles of equal treatment and legal certainty
(European Parliament and Council Regulation No 443/2009; Commission Implementing Regulation No 725/2011, recital 13 and Arts 10(2) and 12; Commission Implementing Decision 2015/158)
(see paragraphs 70-77)
2. Environment – Air pollution – Regulation No 443/2009 – Emission performance standards for new passenger cars – Reduction of carbon dioxide emissions through the use of innovative technologies – Procedure for the approval and certification of those technologies – Ad hoc review by the Commission – Difference between the savings certified by the competent national authorities and the savings reviewed by the Commission – Right of the Commission not to take into account savings certified for the calendar year preceding the review – Not permissible
(European Parliament and Council Regulation No 443/2009, Art. 8(4) and (5); Commission Implementing Regulation No 725/2011, Art. 12(2) and (3))
(see paragraphs 87-93)
Résumé
In the context of the application of Regulation No 443/2009, (1) which aims to reduce emissions of carbon dioxide (CO2) from light-duty vehicles, all manufacturers of passenger cars must ensure that their average specific emissions of CO2 do not exceed the specific emissions target assigned to them. (2) The regulation, which also aims to encourage investment in new technologies, provides, in particular, that CO2 savings achieved through the use of innovative technologies are to be deducted from the specific CO2 emissions of the vehicles in which those technologies are used. (3) To that end, the European Commission adopted an implementing regulation (4) establishing a procedure for the approval and certification of those innovative technologies.
In 2015, by Implementing Decision 2015/158, (5) the Commission approved two high efficient alternator models as eco-innovations for reducing CO2 emissions from passenger cars. For approval purposes, some of the alternators in question had undergone various preparation methods, falling under the generic description ‘preconditioning’.
Daimler AG, a German car manufacturer which fits certain passenger cars with high efficient alternators, applied for and obtained certification from the competent German authorities of the CO2 savings achieved by the use of those alternators.
However, in 2017, following an ad hoc review of those certifications, the Commission found that the savings thus certified using a testing methodology that involved preconditioning were much higher than those that could be shown using the methodology prescribed by Implementing Decision 2015/158, (6) which did not, in the Commission’s view, allow for preconditioning. Consequently, in its Implementing Decision 2019/583 (7) (‘the contested decision’), the Commission held that the savings attributed to Daimler AG’s eco-innovations should not be taken into account in calculating its average specific emissions of CO2 for 2017. (8)
Daimler AG therefore brought an action for annulment of the contested decision in so far as it excluded, for Daimler AG, the average specific emissions of CO2 and the CO2 savings attributed to eco-innovations. In its judgment, the Second Chamber, Extended Composition, of the General Court upholds the action, finding that the Commission infringed the implementing regulation when it carried out the ad hoc review of the certifications of CO2 savings.
Findings of the Court
In the first place, the Court finds that the Commission erred in law when, in the ad hoc review of the certifications of CO2 savings, it excluded the use of a testing methodology that involved preconditioning, such as that used in the approval procedure for the alternators in question. Such an approach does not comply with Article 12 of the implementing regulation, which sets out, in particular, the procedure for that review.
By using a testing methodology that differed from the one used in the approval procedure for the alternators in question, the Commission made it impossible to compare the certified reductions in emissions with the savings set out in Implementing Decision 2015/158.
As regards the Commission’s argument that its approach was justified in the light of the principles of equal treatment and legal certainty, the Court recalls, first, that 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. The Court notes, in that regard, that the testing methodology used by the Commission, which did not take into account the specific technical features of each alternator or the way in which it had been preconditioned, was liable to favour some car manufacturers and to disadvantage others.
The Court finds, secondly, that that methodology was not defined clearly and precisely in any legislation and did not constitute standard industry practice. Accordingly, it could not be regarded as an appropriate means of safeguarding the principle of legal certainty.
As for the Commission’s objections to the use of preconditioning, which is standard industry practice, the Court holds that the Commission had the ability to raise objections or ask for further clarifications regarding the testing methodology at the time of the approval procedure for the alternators and not at the time of the ad hoc review.
In the second place, regarding the interpretation of Article 12(2) of the implementing regulation, which gives the Commission the right, in certain circumstances, not to take into account ‘the certified CO2 savings … for the calculation of the average specific emissions of that manufacturer for the following calendar year’, the Court clarifies that this right relates only to the calendar year following the year of the ad hoc review. In that regard, the Court observes that the expression ‘following calendar year’ could not be interpreted as actually referring to the calendar year preceding the year of the ad hoc review, as the Commission suggested. Such an interpretation was contrary to the clear and unambiguous wording of that provision and raised questions in view of the principle of legal certainty, given that the contested decision had serious retroactive consequences for Daimler AG, whereas it should have affected only ‘the following calendar year’.
Lastly, the Court finds that the provision of the implementing regulation in question is clear and unambiguous, meaning that, contrary to the arguments put forward by the Commission, an interpretation consistent with the basic regulation, namely Regulation No 443/2009, was unnecessary.