Orders nº T-751/18 of Tribunal General de la Unión Europea, January 22, 2020

• Resolution Date: January 22, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-751/18

(Action for annulment - Withdrawal of certified CO2 savings - Eco-innovations scheme - Regulation (EC) No 443/2009 - Implementing Regulation (EU) No 725/2011 - Act not open to challenge - Preparatory measure - Inadmissibility)

In Case T-751/18,

Daimler AG, established in Stuttgart (Germany), represented by N. Wimmer, C. Arhold and G. Ollinger, lawyers,

applicant,

v

European Commission, represented by J.-F. Brakeland and A. Becker, acting as Agents,

defendant,

APPLICATION based on Article 263 TFEU for annulment of Commission letter Ares(2018) 5413709 of 22 October 2018 notifying the withdrawal of CO2 savings achieved by eco-innovations attributed to Daimler AG vehicles fitted with Bosch HED EL 7-150 and 175 plus high efficient alternators,

THE GENERAL COURT (Second Chamber),

composed of V. Tomljenović (Rapporteur), President, P. Škvařilová-Pelzl and I. Nõmm, Judges,

Registrar: E. Coulon,

makes the following

Order

Legal context

1 In the context of the European Union’s objective to reduce carbon dioxide (CO2) emissions from light-duty vehicles while ensuring the proper functioning of the internal market, the European Parliament and the Council of the European Union adopted Regulation (EC) No 443/2009 of 23 April 2009 setting emission performance standards for new passenger cars as part of the Community’s integrated approach to reduce CO2 emissions from light-duty vehicles (OJ 2009 L 140, p. 1).

2 In order to achieve that objective, Article 4 of Regulation No 443/2009 provides that, for the calendar year commencing on 1 January 2012 and each subsequent calendar year, each manufacturer of passenger cars is to ensure that its average specific emissions of CO2 do not exceed its specific emissions target determined in accordance with Annex I to that regulation or, where a manufacturer is granted a derogation under Article 11 of that regulation, in accordance with that derogation.

3 The determination of a manufacturer’s specific emissions target is made in accordance with Article 4 of Regulation No 443/2009, read in conjunction with Annex I to that regulation. Moreover, for the purposes of determining a manufacturer’s average specific emissions of CO2, Member States identify the data referred to in Article 8 of Regulation No 443/2009, read in conjunction with Annex II to that regulation, in particular the CO2 emissions for all new passenger cars registered in their territory during the previous year, as determined in the context of the type-approval of vehicles and designated in the certificate of conformity provided for in Article 18 of Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) (OJ 2007 L 263, p. 1).

4 The European Commission records that data in a public register. In accordance with Article 8(4) of Regulation No 443/2009, the Commission also establishes, by 30 June of each year, a provisional calculation of the average specific emissions of CO2, the specific emissions target and the difference between those two figures during the preceding calendar year, for each manufacturer, and communicates that data to those manufacturers.

5 After a period of 3 months from that notification, during which manufacturers may notify any errors, the Commission, by 31 October each year, confirms or amends the data provisionally calculated, in accordance with Article 8(5) of Regulation No 443/2009. The Commission establishes the final data in a formal decision and publishes it in the form of the list referred to in Article 10 of that Regulation which indicates, for each manufacturer, the target set for the preceding calendar year, the average specific emissions of CO2 in the preceding year and the difference between those two figures.

6 If a manufacturer’s average specific emissions of CO2 exceed its target for the same calendar year, the Commission imposes an excess emissions premium laid down in Article 9 of Regulation No 443/2009. When levying that premium, the Commission relies on the data defined and formally established in accordance with Article 8(5) of that regulation.

7 In addition to protection of the environment, the reduction of CO2 emissions from new passenger cars, set out in Regulation No 443/2009, is aimed at the proper functioning of the internal market and in particular at encouraging investment in new technologies. Therefore, with a view to promoting the long-term competitiveness of the European automotive industry, the regulation ‘actively promotes eco-innovation and takes into account future technological developments’ (see recital 13 of Regulation No 443/2009).

8 Consequently, Article 12 of Regulation No 443/2009 on eco-innovations provides that CO2 savings achieved through the use of innovative technologies are to be taken into account. To that end, they are deducted from the specific CO2 emissions of the vehicles in which those technologies are used when calculating a manufacturer’s average specific emissions of CO2.

9 Accordingly, on 25 July 2011, the Commission adopted Implementing Regulation (EU) No 725/2011, establishing a procedure for the approval and certification of innovative technologies for reducing CO2 emissions from passenger cars, pursuant to Regulation No 443/2009 (OJ 2011 L 194, p. 19).

10 In order for a manufacturer to benefit from CO2 savings based on innovative technology in the determination of its average specific emissions of CO2, the manufacturer may apply to the Commission for approval of an innovative technology as an eco-innovation. To do so, it must submit an application for the approval of an innovative technology as an eco-innovation containing the information listed in Article 4 of Implementing Regulation No 725/2011. The Commission will assess the application in accordance with Article 10 of that regulation and, if necessary, adopt a decision approving the innovative technology as an eco-innovation. That decision specifies the information required for the certification of CO2 savings in accordance with Article 11 of the Implementing Regulation No 725/2011, subject to the application of the exceptions to the right of public access to documents provided for in Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

11 A vehicle manufacturer which, in order to achieve its specific emissions target, wishes to benefit from a reduction in its average specific emissions of CO2 through CO2 savings resulting from an eco-innovation under Article 12 of Regulation No 443/2009 may then, with reference to the Commission’s decision on the approval of a specific eco-innovation, request the national approval authority referred to in Directive 2007/46 to certify the CO2 savings achieved by the use of that eco-innovation in its vehicles, in accordance with Article 11(1) of Implementing Regulation No 725/2011. The CO2 savings which are certified for the vehicle types are referred to both in the corresponding type-approval documentation issued by the national approval authority and in the certificate of conformity of the vehicles concerned, issued by the manufacturer.

12 With regard to the certification of CO2 savings by the national approval authorities and the taking into account of certified CO2 savings to determine a manufacturer’s average specific emissions of CO2, Article 12 of Implementing Regulation No 725/2011 provides for a review of certifications by the Commission on an ad hoc basis. The detailed provisions for that ad hoc verification and any consequences are defined in paragraphs 1 to 3 of that article.

Background to the dispute and events subsequent to the bringing of the action

13 On 30 January 2015, the Commission adopted Implementing Decision (EU) 2015/158 on the approval of two Robert Bosch GmbH high efficient alternators as the innovative technologies for reducing CO2 emissions from passenger cars pursuant to Regulation No 443/2009 (OJ 2015 L 26, p. 31).

14 The applicant, Daimler AG, is a German car manufacturer which fits certain passenger cars with Robert Bosch high efficient alternators (‘the eco-innovations at issue’).

15 In accordance with Article 11 of Implementing Regulation No 725/2011 on the certification of CO2 savings achieved through eco-innovations, the applicant applied for and obtained certification from the Kraftfahrt-Bundesamt (KBA, Federal Office for Motor Vehicle Traffic, Germany) for the CO2 savings achieved through the use of the eco-innovations at issue in some of its vehicles.

16 In 2017, the...