The Connections with the Articles and of the EC Treaty

The Commission had always recognized the potential effects of EU allowances on the European common market. The European Parliament and the Council are also acquainted with that economical effect. Article 1 states that the 'Directive establishes a scheme for greenhouse gas emission allowance trading within the Community [...] in order to promote reductions of greenhouse gas emissions in a cost-effective and economically efficient manner'. There was a risk that, directly or indirectly, States would try to give an advantage to their national installations through the ETS Directive, whereas state aid is expressly forbidden by the EC Treaty. After all, EU allowances are an economic value for the covered installation.

75 On the legal status of an EU allowance, see Pâques (2005); Sepulchre (2005); Mace (2005); Moliner (2003); Peylet (2005).

In EnBw Energie Baden-Wurtemberg AG v. Commission, the Court has considered for the first time the question of state aid in connection with the ETS Directive. The argument of the plaintiff was that the Commission would have issued a 'state aid' decision through its refusal of the German national plan, and thus, the plaintiff would be sufficiently involved. Again, the Court dismissed the argument 'simply' because the Commission cannot take that kind of decision during the process of the Directive. On the other hand, if it does so, the decision is only a prima facie appreciation of a possible state aid, not a real state aid decision under the Article 88 of the European Treaty.

The US Steel Kosice cases are also interesting. A Slovakian society made an application against the Commission's decision about the Slovakian national plan because the European institution wanted to reduce the total amount of EU allowances available for the Slovakian industry. However, the Court used the plaintiff's submission to underline the links between the 'state-aid' matter and the Directive. For the Court, a decision based solely on [the] Directive [...] and not [based] on Articles 87 EC and 88 [of the] EC [Treaty], as is the case with the [Commission's] decision [...], allows the Commission to conduct only a prima facie assessment of the State aid aspects of the NAP in the light of the law on State aid, without prejudice to the eventual adoption of a formal decision for the purposes of the third sentence of Article 88(3) EC.76 In consequence, 'it follows that the contested decision does not have the effect of placing the applicant in the same situation as a recipient of State aid which has been declared to be incompatible with the common market pursuant to a formal decision for the purposes of Article 88 EC. The applicant therefore cannot successfully rely on the case-law which has held that actions for annulment brought by such recipients are admissible.77

Thus, for the Court, when the Commission issues a state aid decision, it must be a formal decision under Articles 87 and 88 of the EC Treaty. The Court's interpretation was used to deny the plaintiffs the quality of being 'individually concerned' by the NAP decision as being not a state aid decision as such.78

76 Court of First Instance, 1st October 2007, Case T-27/07 - US Steel Kosice v. Commission - § 72.

77 Court of First Instance, 1st October 2007, Case T-27/07 - US Steel Kosice v. Commission - § 73.

78 See also Weishaar, 'Verlenen emissierechten "om niet" geen staatssteun'. That publication analysed case T-233/04, Netherlands v. Commission of the 10 April 2008, concerns a state aid decision regarding the Dutch NOx emissions trading program.

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