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Possibilities for Locus Standi and Non-Contractual Damages for Private Parties under the European Emissions Trading Scheme

Published online by Cambridge University Press:  20 January 2017

Josephine van Zeben
Josephine van Zeben*
Affiliation:
University of Amsterdam, The Netherlands,
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Abstract

Case T-16/04, Arcelor SA v. European Parliament and Council of the European Union nyr

  1. 1. The applicant has failed to demonstrate that, in adopting the contested Directive, the Community legislature acted unlawfully or committed a sufficiently serious breach of a rule of law designed to confer rights on the applicant.

  2. 2. Consequently, the application for damages must be rejected without there being any need to rule on the other conditions giving rise to non-contractual liability on the part of the Community or on the plea of inadmissibility raised raised by the Council in relation to certain annexes to the reply. (official headnotes)

Type
Case Notes
Information
European Journal of Risk Regulation , Volume 1 , Issue 4 , December 2010 , pp. 473 - 478
Copyright
Copyright © Cambridge University Press 2010

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References

** Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community, OJ 2003 L 275, p. 32; Article 230(4) EC (now: Article 263(4) Treaty on the Functioning of the European Union).

1 Council Decision 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 fulfillment of commitments there under, OJ 2002 L130/1.

2 These sectors are listed in Annex I of the Directive.

3 At the time of the action, the applicant was yet to merge with Mittal. After this merger in 2006, Arcelor Mittal became the world's largest steel producer.

4 Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within in the Community, OJ 2003 L 275, p. 32.

5 Case T-16/04, Arcelor SA v. European Parliament and Council of the European Union (nyr), para. 32.

6 Arcelor v. Parliament and Council, supra note 5, para. 32.

7 Case C-127/07, Arcelor Atlantique et Lorraine and Others [2008] ECR I-9895. Case C-127/07 is the only reference for a preliminary ruling which has reached the ECJ regarding the EU ETS. The case came from the French Counseil d’État. In this case, Arcelor Atlantique, a main player in the steel industry, objected to the fact that the steel sector, protested against its inclusion in Directive 2003/87/ EC (and the French implementation measures), especially in light of the fact that the aluminum and plastics industries were not. It was submitted that this decision was in breach of the French constitutional principle of equal treatment and the Counseil d’État asked the ECJ to answer the question whether the Community legislator had breached the general principle of equal treatment in so far as the EU ETS is applicable to the steel sector but not the aluminum (“non-ferrous metal”) and plastics (“chemical”) sectors. The ECJ found that the steel, aluminum and plastics sectors under the Directive were, in view of the principle of equal treatment, in a comparable position while treated differently (para. 38). Yet, the Court found that this difference in treatment may be justified based on a “objective and reasonable criterion, […] proportionate to the aim pursued” (para. 47). The Court discussed both the plastics and aluminum sector separately and found that the exclusion of these sectors did not constitute a breach of the principle of equal treatment. For an in-depth discussion of this case, see van Zeben, , “The European Emissions Trading Scheme Case Law”, 18 Review of European Community & International Environmental Law (RECIEL), pp. 119–128.CrossRefGoogle Scholar

8 Paragraph 4 of Art. 263 TFEU reads as follows: “Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.”

9 Paragraph 4 of Art. 230 EC has been replaced by para. 4 of Art. 263 TFEU. The text of Art. 230(4) EC – “Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former” – has been supplemented and altered with: “Any […] person may […] institute proceedings against an act [“decision”] addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures” [the new text is in italics].

10 For full references to past case-law on this topic, see Arcelor v. Parliament and Council, supra note 5, para. 94.

11 Arcelor v. Parliament and Council, supra note 5, para. 96.

12 Ibid., para. 98.

13 Ibid., para. 99.

14 Ibid., paras. 101–102.

15 Ibid., para. 104.

16 Arcelor v. Parliament and Council, supra note 5, paras. 106–109.

17 The applicant argues that this “lock-in” situation is caused by the ongoing restructuring of its group and the rules surrounding allowance allocation and cross-border transfer. See Arcelor v. Parliament and Council, supra note 5, paras. 112, 83–86.

18 Arcelor v. Parliament and Council, supra note 5, paras. 114–116.

19 See, e.g., Arcelor v. Parliament and Council, supra note 5, para. 118 (on long-term agreements with power stations).

20 Arcelor v. Parliament and Council, supra note 5, paras. 119–121.

21 See Arcelor v. Parliament and Council, supra note 5, para. 114.

22 Arcelor v. Parliament and Council, supra note 5, paras. 122–123.

23 Ibid., paras. 125–131.

24 Ibid., para. 133.

25 Ibid., para. 135.

26 Ibid., para. 136.

27 Ibid., para. 139.

28 Ibid., paras. 146–160.

29 Ibid., paras. 161–171. See also Arcelor Atlantique and Lorraine and others, supra note 7.

30 Ibid., paras. 172–192.

31 Ibid., paras. 193–206.

32 Ibid., para. 143.

33 Ibid., para. 153.

34 Ibid., para. 158.

35 Ibid., para. 159.

36 Arcelor Atlantique and Lorraine and others, supra note 7.

37 Arcelor Atlantique and Lorraine and others, supra note 7, paras. 25–38 (different treament in similar situations), 39–45 (disadvantage due to different treatment), 46–73 (on the justifications for different treatment).

38 Arcelor v. Parliament and Council, supra note 5, para. 169.

39 Ibid., para. 170. The Court also refers, by analogy, to Arcelor Atlantique and Lorraine and others, supra note 7, paras. 29–38.

40 Arcelor v. Parliament and Council, supra note 5, para. 174.

41 Ibid., para. 176.

42 Ibid., paras. 177–179.

43 Ibid., paras. 180–184.

44 Ibid., paras. 187–188.

45 Ibid., paras. 190–192.

46 Ibid., para. 196.

47 Arcelor v. Parliament and Council, supra note 5, para. 202.

48 Ibid., para. 203.

49 Ibid., para. 206.

50 Cygan, Adam, “Protecting the Interests of Civil Society in Community Decision-Making – The Limits of Article 230 EC”, 52 International and Comparative Law Quarterly (2003), pp. 995–1012, at p. 995.CrossRefGoogle Scholar

51 See, for instance, Arnull, A., “Private Applicants and the Action for Annulment under Article 173 of the EC Treaty”, 32 CMLRev. (1995), pp. 7 et sqq. Google Scholar; Gerard, N., “Access to Justice in Environmental Matters – A Case of Double Standards”, 8 Journal of Environmental Law (1996), pp. 139 Google Scholar; Neuwahl, N., “Article 173 Paragraph 4 EC: Past, Present and Possible Future”, 21 ELRev. (1996), pp. 17 et sqq Google Scholar. See also the Opinion of Advocate General Jacobs in Case C-50/00, Union de Pequenos Agricultores v. Council [2002] ECR I-6677, especially para. 39.

52 Case T-177/01, Jégo-Quéré et Cie SA v. Commission [2002] ECR OO-2365. The ECJ, however, rejected the CFI's wide interpretation of the conditions for lucos standi and overruled the CFI's case in Case C-263/02 P, Commission v. Jégo-Quéré et Cie SA [2004] ECR I-3425.

53 Cygan, Adam, “Protecting the Interests of Civil Society in Community Decision-Making – The Limits of Article 230 EC”, 52 International and Comparative Law Quarterly (2003), pp. 995–1012, at p. 995.CrossRefGoogle Scholar

54 For an in-depth discussion of this body of case law, see van Zeben, supra note 7.

55 See, e.g., Case T-387/04 EnBW Energie Baden-Württemberg v. Commission, [2007] ECR II 1195; Case T-489/04 US Steel Košice v. Commission, [2007] ECR II 127; Case T-27/07 US Steel Košice v. Commission, [2007] ECR II 128; Case T-13/07 Cemex UK Cement v. Commission, [2007] ECR II 146; Case T-28/07 Fels-Werke and others v. Commission, [2007] ECR II 98. Some of these decisions by the Commission are now also subject to challenges by Member States before the Court of First Instance. See, e.g., Case T-183/07 Poland v. Commission (nyr) and Case T-263/07 Estonia v. Commission (nyr).

56 Union de Pequenos Agricultores v. Council, supra note 51, especially para. 49.

57 Arcelor v. Parliament and Council, supra note 5, para. 92.

58 Ibid., para. 123.

59 See, e.g., the Court's jurisprudence regarding WTO claims such as Case T-19/01 Chiquita Brands International v. Commission [2005] ECR I-315.

60 Arcelor v. Parliament and Council, supra note 5.