Société Arcelor Atlantique et Lorraine and Others v Premier ministre, Ministre de l’Écologie et du Développement durable and Ministre de l'Économie, des Finances et de l'Industrie.

• Jurisdiction: European Union
• Celex Number: 62007CJ0127
• ECLI: ECLI:EU:C:2008:728
• Docket Number: C-127/07
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 16 December 2008

Case C-127/07

Société Arcelor Atlantique et Lorraine and Others

v

Premier ministre and Others

(Reference for a preliminary ruling from the Conseil d’État (France))

(Environment – Integrated pollution prevention and control – Greenhouse gas emission allowance trading scheme – Directive 2003/87/EC – Scope – Installations in the steel sector included – Installations in the chemical and non-ferrous metal sectors excluded – Principle of equal treatment)

Summary of the Judgment

1. Community law – Principles – Equal treatment – Different treatment objectively justified – Criteria for assessment

2. Environment – Formulation of Community policy – Discretion of the Community legislature – Extent – Limits

3. Environment – Atmospheric pollution – Directive 2003/87 – Greenhouse gas emission allowance trading scheme – Scope

(European Parliament and Council Directive 2003/87, as amended by Directive 2004/101)

1. A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment.

Where a Community legislative act is concerned, it is for the Community legislature to demonstrate the existence of objective criteria put forward as justification and to provide the Court with the necessary information for it to verify that those criteria do exist.

(see paras 47-48)

2. In the exercise of the powers conferred on it, the Community legislature has a broad discretion where its action involves political, economic and social choices and where it is called on to undertake complex assessments and evaluations. In addition, where it is called on to restructure or establish a complex system, it is entitled to have recourse to a step-by-step approach and to proceed in the light of the experience gained.

When exercising its discretion in the field of the environment, the Community legislature must, in addition to the principal objective of protecting the environment, fully take into account all the interests involved. In examining the burdens associated with various possible measures, it must be considered that, even if the importance of the objectives pursued is such as to justify even substantial negative economic consequences for certain operators, the Community legislature’s exercise of its discretion must not produce results that are manifestly less appropriate than those that would be produced by other measures that were also suitable for those objectives.

(see paras 57, 59)

3. Consideration of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Directive 96/61, as amended by Directive 2004/101, from the point of view of the principle of equal treatment has disclosed nothing to affect its validity in so far as it makes the greenhouse gas emission allowance trading scheme applicable to the steel sector without including the chemical and non-ferrous metal sectors in its scope.

First, the allowance trading scheme introduced by Directive 2003/87 is a novel and complex scheme whose implementation and functioning could have been disturbed by the involvement of too great a number of participants, and, second, the original definition of the scope of Directive 2003/87 was dictated by the objective of attaining the critical mass of participants necessary for the scheme to be set up.

In view of the novelty and complexity of the scheme, the original definition of the scope of Directive 2003/87 and the step-by-step approach taken, based in particular on the experience gained during the first stage of its implementation, in order not to disturb the establishment of the system were within the discretion enjoyed by the Community legislature.

(see paras 60-61, 74, operative part)

JUDGMENT OF THE COURT (Grand Chamber)

16 December 2008 (*)

(Environment – Integrated pollution prevention and control – Greenhouse gas emission allowance trading scheme – Directive 2003/87/EC – Scope – Installations in the steel sector included – Installations in the chemical and non-ferrous metal sectors excluded – Principle of equal treatment)

In Case C‑127/07,

REFERENCE for a preliminary ruling under Article 234 EC from the Conseil d’État (France), made by decision of 8 February 2007, received at the Court on 5 March 2007, in the proceedings

Société Arcelor Atlantique et Lorraine and Others

v

Premier ministre,

Ministre de l’Écologie et du Développement durable,

Ministre de l’Économie, des Finances et de l’Industrie,

THE COURT (Grand Chamber),

composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, K. Lenaerts, M. Ilešič, A. Ó Caoimh and T. von Danwitz (Rapporteur), Presidents of Chambers, G. Arestis, A. Borg Barthet, J. Malenovský, U. Lõhmus and E. Levits, Judges,

Advocate General: M. Poiares Maduro,

Registrar: M.-A. Gaudissart, Head of Unit,

having regard to the written procedure and further to the hearing on 11 March 2008,

after considering the observations submitted on behalf of:

– Société Arcelor Atlantique et Lorraine and Others, by W. Deselaers, Rechtsanwalt, and P. Lignières, avocat,

– the French Government, by G. de Bergues, L. Butel and S. Gasri, acting as Agents,

– the European Parliament, by L. Visaggio and I. Anagnostopoulou, acting as Agents,

– the Council of the European Union, by P. Plaza García, K. Michoel and E. Karlsson, acting as Agents,

– the Commission of the European Communities, by J.-B. Laignelot and U. Wölker, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 21 May 2008,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the validity of 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 Directive 2004/101/EC of the European Parliament and of the Council of 27 October 2004 (OJ 2004 L 338, p. 18) (‘Directive 2003/87’).

2 The reference was made by the French Conseil d’État (Council of State) in the course of proceedings between Société Arcelor Atlantique et Lorraine and Others and the Premier ministre (Prime Minister), the Ministre de l’Écologie et du Développement durable (Minister for Ecology and Sustainable Development) and the Ministre de l’Économie, des Finances et de l’Industrie (Minister for the Economy, Finance and Industry) concerning the implementation of Directive 2003/87 in the French legal order.

Legal context

International law

3 The United Nations Framework Convention on Climate Change (‘the Framework Convention’) was adopted in New York on 9 May 1992, with the ultimate objective of stabilising greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. On 11 December 1997 the parties to the Framework Convention adopted, pursuant to the convention, the Kyoto Protocol to the United Nations Framework Convention on Climate Change (‘the Kyoto Protocol’), which entered into force on 16 February 2005.

4 The objective of the Kyoto Protocol is to reduce overall emissions of six greenhouse gases, including carbon dioxide (CO₂), by at least 5% below 1990 levels in the period 2008 to 2012. The parties included in Annex I to the Framework Convention have committed themselves to ensuring that their greenhouse gas emissions do not exceed the percentages assigned them by the Kyoto Protocol; the parties can fulfil their obligations jointly. The overall commitment entered into by the European Community and its Member States under the Kyoto Protocol relates to a total reduction of greenhouse gas emissions by 8% compared with their 1990 levels during the period of commitment mentioned above.

Community law

5 The Council of the European Union approved on behalf of the Community, first, the Framework Convention, by 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), and, second, the Kyoto Protocol, by Decision 2002/358/EC of 25 April 2002 concerning the approval, on behalf of the European Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments thereunder (OJ 2002 L 130, p. 1). In accordance with the first paragraph of Article 2 of the latter decision, the Community and its Member States are to fulfil their overall commitment under the Kyoto Protocol jointly.

6 Since the Commission of the European Communities considered that greenhouse gas emission allowance trading would, together with other measures, be an integral and major part of the Community’s strategy in fighting against climate change, it presented on 8 March 2000 a Green Paper on greenhouse gas emissions trading within the European Union (COM(2000) 87 final; ‘the Green Paper’).

7 On the basis of Article 175(1) EC, the Commission presented on 23 October 2001 a proposal for a directive of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (COM(2001) 581 final; ‘the Commission Proposal’), which led to the adoption of Directive 2003/87.

8 As stated in recital 5 in its preamble, that directive aims to make an effective contribution to fulfilling the commitments of the Community and its Member States under the Kyoto Protocol to reduce anthropogenic greenhouse gas emissions, in accordance with Decision 2002/358, through an efficient European market in greenhouse gas emission allowances (‘allowances’), with the least possible diminution of economic development and employment.

9 According to recital 23 in the...