Article Index


Principle of equal treatment


The important matter – one of the crucial to the case – was the issue of equal treatment of member states. It appeared however, that Commission erred in law in relation to the principle under consideration here.


In this case, it was undisputed that, on the basis of the equal treatment principle, the Commission assessed the NAP having regard to its own data obtained on the basis of its own method of assessment.


The Court emphasized, that principle of equal treatment of Member States doesn’t require, that the Commission adopted and used the same method of the NAP’s assessment in relation to all member states.


As the Court stated:


„[...] it should first be noted that application of the principle of equal treatment between the Member States cannot have the effect of modifying the allocation of powers between the Member States and the Commission, as provided for by the Directive, in accordance with the principle of subsidiarity [...]”,


and


“Therefore, since the Directive does not clearly and precisely prescribe the form and the means which must be used for the purposes of its transposition, it must be held that, in maintaining that, by virtue of the equal treatment principle, it was under a duty to select and apply a single method of assessing NAPs for all the Member States in order to attain the objective pursued by the Directive, the Commission exceeded the margin for manoeuvre conferred upon it by the Directive.”,


finally:


“To allow the Commission to use a single method of assessing NAPs for all the Member States would amount to acknowledging it as having not only a veritable power of uniformisation in the context of implementing the allowance trading system, but also a central role in the drawing up of NAPs.”


The central role in the drawing up of NAPs, according to the Court considerations, is entitled however  to Member States – not the Commission.


What are the effects of the Court findings as regards to final emissions caps for the companies in the Member States?


In our opinion, the reasoning of the Court entails the necessity of applying by the Commission in the future procedure the individual method of assessing of NAP’s. So, contrary do the resent practice of the Commission, there is now no possibility to avoid a detailed analysis of individual parameters of the plan.


Furthermore, a possible argument, that the economic model used in drawing up the plan, is inconsistent with the model adopted (and used) by the Commission, wouldn’t be effective.


It seems however, that the reasoning of the Court can be read more generally - as an idea to take account in the Commission decisions on the approvals of NAP’s, of individual socio – economic conditions of a particular Member State, as well as a degree of carbon intensity of a particular economy.


Such a approach was promoted by the negotiators from e new Member States for a long time ago.


In addition, should be noted the clear-cut priority, which the Court awarded to the principle of division of powers between Member States and the Commission in comparison with the principle of equal treatment.


In other words we can say, that in no circumstances the principle of equal treatment can justify infringement by the Commission on the sovereignty of the Member State.


The accusation towards the Commission in that regard apparently was estimated as a severe, since the Court showed a bit of malice saying, that the Commission “may sufficiently ensure equal treatment between the Member States by examining the plan submitted by each of them with the same degree of diligence”. Leave this without comment.