Judgments nº T-699/17 of Tribunal General de la Unión Europea, January 27, 2021

• Resolution Date: January 27, 2021
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-699/17

(Environment - Directive 2010/75/EU - Industrial emissions - Implementing Decision (EU) 2017/1442 - Large combustion plants - Best available techniques (BAT) conclusions - Article 16(4) and (5) TEU - Article 3(2) and (3) of Protocol (No 36) on transitional provisions - Application of the law ratione temporis - Comitology)

In Case T-699/17,

Republic of Poland, represented by B. Majczyna and D. Krawczyk, acting as Agents,

applicant,

supported by

Republic of Bulgaria, represented by E. Petranova and T. Mitova, acting as Agents,

and by

Hungary, represented by M. Fehér, acting as Agent,

interveners,

v

European Commission, represented by Ł. Habiak, K. Herrmann and R. Tricot, acting as Agents,

defendant,

supported by

Kingdom of Belgium, represented by M. Jacobs, acting as Agent,

by

French Republic, represented by J. Traband and A.-L. Desjonquères, acting as Agents,

and by

Kingdom of Sweden, represented by C. Meyer-Seitz, H. Shev, L. Zettergren and A. Alriksson, acting as Agents,

interveners,

ACTION pursuant to Article 263 TFEU seeking annulment of Commission Implementing Decision (EU) 2017/1442 of 31 July 2017 establishing best available techniques (BAT) conclusions, under Directive 2010/75/EU of the European Parliament and of the Council, for large combustion plants (OJ 2017 L 212, p. 1),

THE GENERAL COURT (Third Chamber, Extended Composition),

composed of A.M. Collins, President, V. Kreuschitz (Rapporteur), Z. Csehi, G. De Baere and G. Steinfatt, Judges,

Registrar: R. Ūkelytė, Administrator,

having regard to the written part of the procedure and further to the hearing on 17 September 2020,

gives the following

Judgment

Legal framework

The procedure for adopting best availab le techniques (BAT) conclusions

1 Best available techniques (BAT) conclusions serve as the reference, in accordance with Article 14(3) of Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (OJ 2010 L 334, p. 17), for setting the permit conditions for operating combustion plants.

2 BAT conclusions are adopted in two stages, in accordance with Article 13 of Directive 2010/75 and the Annex to Commission Implementing Decision 2012/119/EU of 10 February 2012 laying down rules concerning guidance on the collection of data and on the drawing up of BAT reference documents and on their quality assurance referred to in Directive 2010/75 (OJ 2012 L 63, p. 1).

3 The first stage consists in drawing up a technical BAT reference document (‘BREF’) following an exchange of information with the participation of the European Commission, the Member States, the sectors concerned and non-governmental organisations promoting environmental protection. In that context, a technical working group draws up documents relating to the BREF, taking into account the outcome of the exchange of information for a given sector. The final draft of the BREF is sent to the forum established by Article 13(3) of Directive 2010/75, which provides its opinion on the proposed content of the BREF resulting from the technical work carried out.

4 In the second stage, in accordance with Article 13(5) and Article 75(2) of Directive 2010/75, the Commission submits a draft implementing decision on BAT conclusions to the committee established by Article 75 of Directive 2010/75 (‘the committee’) composed of representatives of the Member States. The committee delivers, under the examination procedure referred to in Article 5 of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13), its opinion on the Commission’s draft implementing decision by the qualified majority defined in Article 16(4) and (5) TEU. Where that opinion is positive, the Commission adopts the implementing decision setting out the BAT conclusions.

The applicable provisions concerning the qualified majority

5 Article 16(4) and (5) TEU states:

‘4. As from 1 November 2014, a qualified majority shall be defined as at least 55% of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65% of the population of the Union.

A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained.

The other arrangements governing the qualified majority are laid down in Article 238(2) [TFEU].

5. The transitional provisions relating to the definition of the qualified majority which shall be applicable until 31 October 2014 and those which shall be applicable from 1 November 2014 to 31 March 2017 are laid down in the Protocol on transitional provisions.’

   6 Article 3 of Protocol (No 36) on transitional provisions (OJ 2016 C 202, p. 321; ‘Protocol No 36’) provides:

   ‘1. In accordance with Article 16(4) [TEU], the provisions of that paragraph and of Article 238(2) [TFEU] relating to the definition of the qualified majority in the European Council and the Council shall take effect on 1 November 2014.

2. Between 1 November 2014 and 31 March 2017, when an act is to be adopted by qualified majority, a member of the Council may request that it be adopted in accordance with the qualified majority as defined in paragraph 3. In that case, paragraphs 3 and 4 shall apply.

3. Until 31 October 2014, the following provisions shall remain in force, without prejudice to the second subparagraph of Article 235(1) [TFEU].

   For acts of the European Council and of the Council requiring a qualified majority, members’ votes shall be weighted as follows:

   Belgium

   12

   Bulgaria

   10

   Czech Republic

   12

   Denmark

   7

   Germany

   29

   Estonia

   4

   Ireland

   7

   Greece

   12

   Spain

   27

   France

   29

   Croatia

   7

   Italy

   29

   Cyprus

   4

   Latvia

   4

   Lithuania

   7

   Luxembourg

   4

   Hungary

   12

   Malta

   3

   Netherlands

   13

   Austria

   10

   Poland

   27

   Portugal

   12

   Romania

   14

   Slovenia

   4

   Slovakia

   7

   Finland

   7

   Sweden

   10

   United Kingdom

   29

   Acts shall be adopted if there are at least 260 votes in favour representing a majority of the members where, under the Treaties, they must be adopted on a proposal from the Commission. In other cases decisions shall be adopted if there are at least 260 votes in favour representing at least two thirds of the members.

   A member of the European Council or the Council may request that, where an act is adopted by the European Council or the Council by a qualified majority, a check is made to ensure that the Member States comprising the qualified majority represent at least 62% of the total population of the Union. If that proves not to be the case, the act shall not be adopted.

4. Until 31 October 2014, the qualified majority shall, in cases where, under the Treaties, not all the members of the Council participate in voting, namely in the cases where reference is made to the qualified majority as defined in Article 238(3) [TFEU], be defined as the same proportion of the weighted votes and the same proportion of the number of the Council members and, if appropriate, the same percentage of the population of the Member States concerned as laid down in paragraph 3 of this Article.’

   7 Article 5 of Regulation No 182/2011 provides, in particular, as follows:

   ‘1. Where the examination procedure applies, the committee shall deliver its opinion by the majority laid down in Article 16(4) and (5) TEU and, where applicable, Article 238(3) TFEU, for acts to be adopted on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in those Articles.

2. Where the committee delivers a positive opinion, the Commission shall adopt the draft implementing act.

   …’

   Background to the dispute

   8 On 9 March 2017, the Commission, in its capacity as chair of the committee, submitted to the committee a draft implementing decision establishing BAT conclusions, under Directive 2010/75, for large combustion plants (‘LCPs’).

   9 By letter of 23 March 2017, the Commission invited the members of the committee to a meeting scheduled for 28 April 2017. The purpose of that meeting was to vote on the opinion relating to that draft implementing decision. A draft agenda was attached to that letter.

   10 On 30 March 2017, the Republic of Poland requested that the committee take a vote on the opinion on that draft implementing decision in accordance with the voting rules laid down in Article 3(3) of Protocol No 36.

   11 On 4 April 2017, the Legal Service of the Council of the European Union sent to the Committee of Permanent Representatives of the Member States an opinion according to which, in essence, in order for a vote on a draft act to be conducted in accordance with the rules applicable before the entry into force of the Treaty of Lisbon, the...