The Polish NAP II - is the game definitively ended?
Legal Alert
Thursday, 18 March 2010 15:57


As the KASHUE (Polish National Administration for EUETS) announced, submissions relating to the draft of the NAP for the period 2008 - 2012 may be made only by the date 23 March 2010. According to the KASHUE, methodology for allocation of allowances applied in the draft, is analogous to that of 1 July 2008.


The European Commission upheld thus its decision relating to Polish CO2 allocations – despite the court defeat. But taking into consideration the findings of Court of First Instance in he judgment of 23 September 2009 in Case T‑183/07 there is still theoretically possible the opposite move – the increase in amount of allocations.

Since all depends on actual emissions figures – and these must be up-to-date.

In the article „The landscape after the judgment – prognosis of legal effects and further scenarios” I analysed the possible consequences of the judgment of the Court of First Instance of 23 September 2009 in Case T‑183/07 the Republic of Poland against the European Commission in the light of detailed considerations of the Court. In the section “When a NAP is up-to-date” I stressed, that taking into account the reasons of the judgment, it is probable, that in the further procedure of approving the NAP emission figures relating to verified emissions for 2008 will be very important.

 

But consequently, if the recession pass by and these figures take more advantageous for carbon dependent companies shape, the Court findings will be the base for a new scrutiny and adjustment of a NAP.


We see currently, that the prognosis fulfilled – as regards the first part of it.

The European Commission, taking use of the fact that Polish installations still weren’t allocated with 2010 emission allowances, probably forced the Polish Government to accept the figures, which approximately are the same as the ones from 2008.

 

So, it seems that the game now ended – at this stage.

 

It should, however, be noted, that according to the Court considerations:

 

„[...] the Commission is required permanently to ensure that the NAPs take account of the most exact and thus the most up-to-date information possible in order to cause the least damage to economic development and employment, while at the same time maintaining an efficient system of greenhouse gas emission allowances.”

 

If an NAP was based in part on incorrect information or erroneous evaluations relating to the level of emissions in certain sectors or certain installations, the Member State in question would be entitled to propose amendments to the NAP, including increases to the total quantity of allowances to be allocated, in order to address those problems before they produced market repercussions.

 

The Court emphasized – having regard to the case law, the wording of the Directive and objectives of the system established by it – that a Member State has possibility, following the Commission’s decision adopted in accordance with Article 9(3) of the Directive, to modify the data contained in its NAP in order, for example, to take account of new information received.

 


 

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