Holcim (Romania) SA v European Commission.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: da Cruz Vilaça
• ECLI: ECLI:EU:C:2016:207
• Docket Number: C-556/14
• Date: 07 April 2016
• Procedure Type: Recurso de casación - inadmisible

JUDGMENT OF THE COURT (Fifth Chamber)

7 April 2016 (*)

(Appeal — Environment — Scheme for greenhouse gas emission allowance trading in the European Union — Directive 2003/87/EC — Articles 19 and 20 – Regulation (EC) No 2216/2004 — Article 10 — System of registries for transactions concerning emission allowances — Liability for fault – Commission’s refusal to disclose information on and to prohibit all transactions involving stolen emission allowances — Strict liability)

In Case C‑556/14 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 1 December 2014,

Holcim (Romania) SA, established in Bucharest (Romania), represented by L. Arnauts, avocat,

appellant,

the other party to the proceedings being:

European Commission, represented by E. White and K. Mifsud‑Bonnici, acting as Agents,

defendant at first instance,

THE COURT (Fifth Chamber),

composed of J.L. da Cruz Vilaça (Rapporteur), President of the Chamber, F. Biltgen, A. Borg Barthet, E. Levits and M. Berger, Judges,

Advocate General: P. Mengozzi,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its appeal, Holcim (Romania) SA (‘Holcim’) asks the Court to set aside the judgment of the General Court of the European Union of 18 September 2014 in Holcim (Romania) v Commission (T‑317/12, EU:T:2014:782, ‘the judgment under appeal), by which the General Court dismissed Holcim’s action seeking, first, compensation for the damage which Holcim allegedly sustained because of the European Commission’s alleged fault (i) in refusing to disclose to it information concerning greenhouse gas emission allowances allegedly stolen from Holcim and (ii) in prohibiting all transactions involving those allowances and, secondly, compensation for that damage on the basis of the Commission’s strict liability.

Legal context

International law

2 The United Nations Framework Convention on Climate Change (‘the United Nations Framework Convention) was adopted on 9 May 1992 and approved, on behalf of the European Community, by Council Decision 94/69/EC of 15 December 1993 concerning the conclusion of the United Nations Framework Convention on Climate Change (OJ 1994 L 33, p. 11). It entered into force, with regard to the Community, on 21 March 1994.

3 The Kyoto Protocol to the United Nations Framework Convention (‘the Kyoto Protocol’) was adopted on 11 December 1997. That protocol was approved on behalf of the Community by Council Decision 2002/358/EC of 25 April 2002 (OJ 2002 L 130, p. 1).

4 In accordance with Article 3(1) of the Kyoto Protocol, during the period 2008 to 2012, the States and international organisations included in Annex I to the United Nations Framework Convention, including the Community, had to ensure that their aggregate anthropogenic emissions of certain greenhouse gases did not exceed a certain amount, referred to as the ‘assigned amount’.

5 The assigned amount was expressed in tonnes of carbon dioxide equivalent, one tonne being equivalent to one ‘assigned amount unit’. During the period 2008 to 2012, as a supplement to actions for the purpose of meeting quantified emission limitation and reduction commitments, each State included in Annex I to the Kyoto Protocol could vary its assigned amount, so that it was not less than its actual emissions. To that end, the parties could carry out a range of operations by means of the assigned unit amounts and the other types of unit provided for by the Kyoto Protocol (together ‘the Kyoto units’).

6 On 30 November 2005, the Conference of the Parties to the United Nations Framework Convention serving as the meeting of the Parties to the Kyoto Protocol adopted Decision 13/CMP.1. The annex to that decision sets out the ‘[m]odalities for the accounting of assigned amounts’.

7 As set out in paragraph 44 of the Annex to Decision 13/CMP.1, ‘each national registry shall make non-confidential information publicly available’. Paragraph 47 of that annex lists the information referred to in paragraph 44, including the units held and the transactions carried out in the context of the national registry. That information consists in a series of data relating to the Kyoto units held, issued, acquired, transferred or cancelled in the accounts held in the national registries.

European Union law

8 Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32), as amended by Regulation (EC) No 219/2009 of the European Parliament and of the Council of 11 March 2009 (OJ 2009 L 87, p. 109, ‘Directive 2003/87’), states, in recital 5 of that directive, that it ‘aims to contribute to fulfilling the commitments [stemming from the Kyoto Protocol] of the European Community and its Member States more effectively, through an efficient European market in greenhouse gas emission allowances, with the least possible diminution of economic development and employment’.

9 Article 1 of Directive 2003/87 provides that that directive ‘establishes a scheme for greenhouse gas emission allowance trading within the Community (hereinafter referred to as the “Community scheme”) in order to promote reductions of greenhouse gas emissions in a cost‑effective and economically efficient manner’.

10 Article 2 of Directive 2003/87, relating to the scope of that directive, provides, in paragraph 1 thereof:

‘This Directive shall apply to emissions from the activities listed in Annex I and greenhouse gases listed in Annex II’.

11 Article 3(a) of Directive 2003/87 defines the greenhouse gas emission allowance (‘the emission allowance’) as being ‘an allowance to emit one tonne of carbon dioxide equivalent during a specified period, which shall be valid only for the purposes of meeting the requirements of this Directive and shall be transferable in accordance with the provisions of this Directive’.

12 In accordance with Article 11(2) and (4) of that directive, during the five-year period beginning on 1 January 2008, the competent authority of the Member State concerned is to issue, each year, to the operator of an installation coming within one of the sector[s] of activities listed in Annex I to that directive a certain number of emission allowances. The allowances must be issued by 28 February of the year in question (year N).

13 In accordance with Article 12(3) of Directive 2003/87, by 30 April of year N+1 at the latest, the operator of an installation must surrender a number of emission allowances equal to the total emissions actually emitted from that installation during the calendar year N.

14 Article 19(2) and (3) of Directive 2003/87 provides:

‘2. Any person may hold allowances. The registry shall be accessible to the public and shall contain separate accounts to record the allowances held by each person to whom and from whom allowances are issued or transferred.

3. In order to implement this Directive, the Commission shall adopt a Regulation for a standardised and secured system of registries in the form of standardised electronic databases containing common data elements to track the issue, holding, transfer and cancellation of allowances, to provide for public access and confidentiality as appropriate and to ensure that there are no transfers which are incompatible with the obligations resulting from the Kyoto Protocol. That Regulation shall also include provisions concerning the use and identification of [certified emission reductions] and [emission reduction units] in the Community scheme and the monitoring of the level of such use. ...’

15 Article 20 of that directive provides:

‘1. The Commission shall designate a Central Administrator to maintain an independent transaction log recording the issue, transfer and cancellation of allowances.

2. The Central Administrator shall conduct an automated check on each transaction in registries through the independent transaction log to ensure there are no irregularities in the issue, transfer and cancellation of allowances.

3. If irregularities are identified through the automated check, the Central Administrator shall inform the Member State or Member States concerned who shall not register the transactions in question or any further transactions relating to the allowances concerned until the irregularities have been resolved.’

16 Pursuant to Article 19(3) of Directive 2003/87, the Commission adopted Commission Regulation (EC) No 2216/2004 of 21 December 2004 for a standardised and secured system of registries pursuant to Directive 2003/87 and Decision No 280/2004/EC of the European Parliament and of the Council (OJ 2004 L 386, p. 1). That regulation was repealed as from 1 January 2012 by Commission Regulation (EC) No 994/2008 of 8 October 2008 (OJ 2008 L 271, p. 3). However, taking into account the date of the conduct of which the Commission is accused, the present dispute remains governed by Regulation No 2216/2004, as amended by Commission Regulation (EU) No 920/2010 of 7 October 2010 (OJ 2010 L 270, p. 1, ‘Regulation No 2216/2004’).

17 Article 5 of Regulation No 2216/2004, on the independent transaction log provided for in Article 20 of Directive 2003/87, provides in paragraph 3:

‘The Central Administrator designated pursuant to Article 20 of Directive 2003/87/EC shall operate and maintain the Community independent transaction log in accordance with the provisions of this Regulation.’

18 Article 10 of Regulation No 2216/2004 provides:

‘1. All information, including the holdings of all accounts and all transactions made, held in the registries and the Community independent transaction log shall be considered confidential for any purpose other than the implementation of the...