|The landscape after the judgment – prognosis of legal effects and further scenarios|
|Friday, 02 October 2009 19:59|
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Let’s analyze possible future legal scenarios, that are evoked with the judgment of the Court of First Instance of 23 September
The reaction of the Commission
In the statement of 24 September 2009 IP/09/1355 relating to the Judgment, Commissioner Stavros Dimas expressed the view, that:
„[...] the Commission has to take new NAP Decisions in respect of
Consequentially and ahead of these decisions, those countries are not allowed to issue any additional allowances beyond those created in the EU ETS registry system.
In preparing new decisions the Commission would base itself on the best available data. In this context the importance of verified emissions for 2005 to 2008 should be noted. In the light of these data, it would appear unlikely that there would be any material difference concerning the total number of allowances consistent with the terms of the Directive. The actual 2008 emissions in
The above mentioned statement was probably issued in order to steady the market in emission allowances, where after the Judgment some “nervous” movements of prices were observed.
It seems, that the rank and the burden of considered accusations required a more analytical approach – taking particularly account of basic principles of legal order.
Let’s mention some citations from the reasoning of the Judgment:
“[...] such a reasoning does not explain the reasons why the Commission set aside the said data used by the
“Since the Commission does not challenge either the fact that the data entered in the NAP had formed the subject of a report to the UNFCCC or the fact that, as the Republic of Poland states, it reviewed those data itself, the Court considers that it cannot a priori be excluded that those data have a certain degree of reliability. Consequently, it was for the Commission, at the very least, to explain in what way those data entered in the NAP by the Republic of Poland were not reliable and, therefore, could be rejected in accordance with Article 9(3) of the Directive.”,
“[...] the Commission has not provided anything in the contested decision capable of sufficiently explaining in what way the choice of the method of economic analysis and the data used by the Republic of Poland were contrary to Community law.”,
“[...] Commission exceeded the powers conferred upon it [...]”
The set of the above opinions affirms some concerns expressed sometimes by the member of the public in Poland, that EU ETS is introduced by the Commission in the way, that doesn’t take into account opinions and arguments presented by individual Member States.
One of most important arguments presented in the judicial procedure by the Commission, was, that excessive number of allowances “would risk a collapse of the greenhouse gas emissions trading market”.
Such an argument – resulting, as it seems, from a belief, that the right purpose justifies all means - met a decisive reaction from the Court, which stated:
“Even if that argument were well founded, it cannot justify maintaining the contested decision in force in a community governed by the rule of law such as the Community, since that act was adopted in breach of the distribution of powers between the Member States and the Commission, as defined in the Directive.”
We must admitt, that the Court appeared to be insensitive to arguments of economic nature, which in that case could, in the judicial opinion, pose a threat to the system of the rule of law.
It is however surprising, that the Commission had no legal arguments (or they were unconvincing) and it expected legal acceptation and protection for a “rendered facts”.
Therefore, there is no doubt, that as a effect of a Judgment, Commission is obliged to adopt a new decision on the matter.