Under Article 211 of the EC Treaty, the Commission is charged with ensuring that the provisions of the Treaty and the measures taken by the institutions pursuant to the Treaty are applied. 'This means the Commission has been given primary responsibility for monitoring the application of European law in the Member States.'53 The most important instrument at the Commission's disposal is the procedure laid down in Article 226. This provides that the Commission may bring a matter before the Court of Justice if it considers that a Member State has failed to fulfill an obligation under the Treaty.54 The Commission made two applications based on that Article, against the non-transposition of the ETS Directive by Italy and Finland.55,56 In Commission v. Finland, the Court ruled that Finland,
52 Upston-Hooper and Mehling (2007, p. 308).
55 ECJ, Judgment of 18 May 2006, Case C-122/05 - Commission v. Italy: 'By failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2003/87/EC of the European by failing, with regard to the province of Aland, to adopt the laws regulations and administrative provisions necessary to comply with Directive 2003/87/EEC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, the [Member State] has failed to fulfill its obligations under that directive.57
Similarly with Article 211 of the EC Treaty, the European Commission was chosen to be the central organ of control of the Directive's application. In order to fulfill this task, the European Commission made some guidelines to help Member States during their national allocation plan elaboration process.58,59 The question about the legal validity of these guidelines appeared
Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, the Italian Republic has failed to fulfill its obligations under that directive'.
56 In the same idea, see ECJ, Judgment of 18 July 2007, Case C-61/07 - Grand Duchy of Luxembourg v. Commission of the European Communities. 'The Court declares that, by failing to communicate the information required under Article 3(2) of Decision n° 280/2004/EC of the European Parliament and of the Council of 11 February 2004 concerning a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto protocol, the Grand Duchy of Luxembourg has failed to fulfill its obligation under that provision'.
57 ECJ, Judgment of 12 January 2006, Case C-107/05 - Commission v. Finland.
58 Communication from the Commission on guidance to assist Member States in the implementation of the criteria listed in Annex III to Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, and on the circumstances under which force majeure is demonstrated, C0M/2003/0830 final; Communication from the Commission to the Council and to the European Parliament on Commission Decisions of 7 July 2004 concerning national allocation plans for the allocation of greenhouse gas emission allowances of Austria, Denmark, Germany, Ireland, the Netherlands, Slovenia, Sweden, and the United Kingdom in accordance with Directive 2003/87/EC, COM/2004/0500 final; Communication from the Commission to the Council and to the European Parliament on Commission Decisions of 20 October 2004 concerning national allocation plans for the allocation of greenhouse gas emission allowances of Belgium, Estonia, Finland, France, Latvia, Luxembourg, Portugal, and the Slovak Republic in accordance with Directive 2003/87/EC, C0M(2004)0681; Communication from the Commission, 'Further guidance on allocation plans for the 2008 to 2012 trading period of the EU Emission Trading Scheme', C0M(2005)0703; Communication from the Commission to the Council and to the European Parliament on the assessment of national allocation plans for the allocation of greenhouse gas emission allowances in the second period of the EU Emissions Trading Scheme accompanying Commission Decisions of 29 November 2006 on the national allocation plans of Germany, Greece, Ireland, Latvia, Lithuania, Luxembourg, Malta, Slovakia, Sweden and the United Kingdom in accordance with Directive 2003/87/EC, C0M(2006)0725.
59 Van Raepenbusch (2005). 'Le caractère non contraignant des recommanda-
immediately. In Germany v. Commission, the Court of First Instance underlined that '[the guidelines] do [...] not correspond to any of the measures of secondary Community law that are provided for in Article 249 EC'.60
Accordingly, the guidance falls within the category of rules which, as such, do not, in principle, have independent binding effect vis-à-vis third parties and of which the Commission makes extensive use in its administrative practice in order to structure, and increase the transparency of, the exercise of its discretion and supervisory power.
[The Commission] imposes a limit on the exercise of its own discretion and cannot depart from those rules, if it is not to be found, in some circumstances, to be in breach of general principles of law, such as the principles of equal treatment, of legal certainty or of the protection of legitimate expectations.
In consequence, 'the Commission may not depart from them in an individual case without giving reasons that are compatible with the principle of equal treatment'.61
So, in the opinion of the Court, the Commission's communications have no real lawful effect, except for the Commission itself. If the Commission wants to depart from its previous declarations, it has to give the reasons why it wants to adopt a new interpretation. As the Court emphasized, these reasons have to be in conformity with the principle of equal treatment. It seems that the Court has based its interpretation on the general principles of legal certainty and the protection of legitimate expectations. In other words, the applicants (the Member States) must take into consideration the Commission's interpretation contained in its declarations during the NAP's process. But, in order to provide legal certainty, they must be sure, during its appreciation of the NAPs, that the Commission cannot change without any justified reasons its interpretation of such and such particular criterion of Annex III in a specific case. In consequence, if the Court does not change its case-law, Member States can use that decision in order to limit any unjustified breach of the Commission's declarations made by the Commission itself.
tions empêche de les considérer en tant que telles comme directement applicables. Toutefois, ces actes ne sont pas dépourvues de tout effet direct juridique dès lors qu'ils doivent être pris en considération par les juges nationaux lorsqu'ils interprètent les dispositions nationales dans le but d'assurer la pleine mise en œuvre ou de compléter des dispositions communautaires ayant un caractère contraignant (cf. Aff. C-322/88, Grimaldi - Rec., 1989, p.4407)'.
60 Court of First Instance, 7 November 2007, Case T-384/04 - Germany v. Commission - § 110.
61 Court of First Instance, 7 November 2007, Case T-384/04 - Germany v. Commission - § 111.
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