Case T-237/09

Région wallonne

v

European Commission

(Environment — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — National emission allowance allocation plan for Belgium in respect of the period from 2008 to 2012 — Article 44 of Regulation (EC) No 2216/2004 — Subsequent correction — New entrant — Decision instructing the Central Administrator of the Community independent transaction log to enter a correction into the national allocation plan table)

Summary of the Judgment

1.      Actions for annulment — Actionable measures — Definition — Measures producing binding legal effects — Action brought against an implied decision of refusal that is apparent from the statement of reasons on which a measure is based — Admissibility

(Art. 263 TFEU)

2.      Environment — Atmospheric pollution — Directive 2003/87 — National allocation plan for the allocation of greenhouse gas emission allowances (NAP) — NAP notification procedure — Right of the Member State concerned to subsequently make corrections to the NAP table — Permissibility — Criteria — Cumulative nature

(Commission Regulation No 2216/2004, Art. 44(2); European Parliament and Council Directive 2003/87, as amended by Directive 2004/101, Art. 9(3))

3.      Environment — Atmospheric pollution — Directive 2003/87 — National allocation plan for the allocation of greenhouse gas emission allowances (NAP) — NAP notification procedure — Right of the Member State concerned to subsequently make corrections to the NAP table — Permissibility — Allocation criteria — Restrictive interpretation

(Commission Regulation No 2216/2004, Art. 44(2), fourth subpara.; European Parliament and Council Directive 2003/87, as amended by Directive 2004/101, Arts 9(3) and 11(2) and Annex III)

1.      Only the operative part of a decision is capable of producing legal effects and, consequently, of adversely affecting a person’s legal interests, regardless of the grounds on which the decision is based. By contrast, the assessments made in the recitals of a decision are not in themselves capable of forming the subject of an action for annulment and can be subject to review by the European Union judicature only to the extent that, as grounds for an act adversely affecting a person’s interests, they constitute the necessary basis for the operative part of that act.

However, even though the operative part of a decision does not expressly reject a request made by the addressee, it may nevertheless be apparent from the decision, as read in the light of its fundamental grounds, that the institution which drew it up expressly adopted a position on that request and rejected it. It must therefore be held in such a case that the decision entails binding legal effects adversely affecting the addressee in that respect.

(see paras 44-46)

2.      Article 44(2) of Regulation No 2216/2004 for a standardised and secured system of registries pursuant to Directive 2003/87 and Decision No 280/2004 lays down two criteria which must both be met in order for a correction to be capable of being made to a national allocation plan (NAP) table without it being necessary to follow the procedure for notifying an amended NAP pursuant to Article 9(3) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community. First, the correction must be based upon the NAP, as notified to the Commission and not rejected by it, and second, it must result from ‘improvements in data’. Also, when those two cumulative criteria are met, the Commission is required, under the final words of the second sentence of the first subparagraph of Article 44(2) of Regulation No 2216/2004, to instruct the Central Administrator of the Community independent transaction log to enter the correction in question into the NAP table.

(see para. 55)

3.      Having regard to the general rule under which, by virtue of Article 11(2) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community, read in conjunction with the allocation criteria referred to in Annex III thereto, the total amount of allowances available during the allocation period concerned must be set in advance, the cumulative criteria of ‘correction’ and of ‘improvements in data’, which need to be met in order for an amendment to be capable of being made to the national allocation plan (NAP) table after the NAP has been notified, must, as exceptions, be interpreted restrictively, in order to preserve the effectiveness of the notification procedure under the fourth subparagraph of Article 44(2) of Regulation No 2216/2004 for a standardised and secured system of registries pursuant to Directive 2003/87 and Decision No 280/2004, read in conjunction with Article 9(3) of Directive 2003/87. Only a restrictive interpretation is such as to ensure full prior review, in the light of the abovementioned allocation criteria, of subsequent amendments requested by the Member State.

(see para. 66)