Carmeuse Holding v Commission (Environment - Scheme for greenhouse gas emission allowance trading - Judgment) [2024] EUECJ T-385/22 (11 December 2024)

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( Environment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - Transitional rules for the harmonised free allocation of emission allowances for the 2021-2030 period - Changes to Romania’s national allocation table for the 2021-2025 period - Transitional free allocation of greenhouse gas emission allowances to installations producing quicklime - Obligation to state reasons - Right to be heard - Principle of good administration - Error of law - Manifest error of assessment - Equal treatment - Legal certainty - Legitimate expectations )

Carmeuse Holding SRL, established in Brașov (Romania), represented by S. Olaru, R. Savin and M. Vasile, lawyers,

European Commission, represented by G. Wils and B. De Meester, acting as Agents,

composed of R. da Silva Passos, President, I. Reine (Rapporteur) and T. Pynnä, Judges,

1 By its action under Article 263 TFEU, the applicant, Carmeuse Holding SRL, asks the Court to annul the Commission Decision of 14 February 2022 instructing the Central Administrator of the European Union Transaction Log to enter changes to the national allocation tables of Belgium, Bulgaria, Czechia, Denmark, Germany, Estonia, Ireland, Spain, France, Italy, Lithuania, Hungary, Romania, Slovenia, Finland and Sweden into the European Union Transaction Log (OJ 2022 C 160, p. 27; ‘the contested decision’), in so far as that decision concerns it.

2 The applicant operates 10 installations, 3 of which are in Romania, inter alia for the production of calcium oxide (CaO), more commonly known as ‘quicklime’ (‘lime’).

3 The present dispute concerns two of the applicant’s three Romanian installations: the RO55 installation located in Valea Mare-Pravăț (Romania) and the RO56 installation located in Fieni (Romania). Those installations produce lime. Lime is used for a variety of applications, inter alia in the fields of the environment, metallurgy, construction and chemistry and, in particular, in the steel industry.

4 Lime is produced from calcium carbonate (CaCO3), also known as ‘limestone’, which is a common type of carbonate sedimentary rock.

5 Producing lime from limestone consists, in this case, in decarbonation, that is, the removal of carbon dioxide (CO2) from the limestone.

6 Carbon dioxide emissions in the production of lime from limestone come from two sources, namely (i) the combustion of fuel since, in order to achieve the high temperatures required for calcination, large quantities of fuels, such as natural gas, biomass or coal, are burned, and (ii) the emissions from limestone decarbonation, which are called ‘process emissions’.

7 In addition, the lime product also contains impurities, such as residual limestone which is not decarbonated during the reaction and which, consequently, does not generate process emissions. Furthermore, natural limestone contains impurities, the most important of which is magnesium, usually present in the form of magnesium carbonate (MgCO3). During limestone calcification, magnesium carbonate undergoes the same decarbonation reaction as limestone.

8 The magnesium oxide (MgO) content in the final product also correlates with the quantity of carbon dioxide process emissions caused by the decarbonation of magnesium carbonate. On account of that correlation, the free allocation of emission allowances for lime production also takes into account the quantity of magnesium oxide in the final product, even though that substance is only a minor constituent of the lime product.

9 The European Union Emissions Trading Scheme (EU-ETS) is one of the mechanisms put in place by the European Union to combat climate change by reducing greenhouse gas emissions in a cost-efficient manner. It is a cap-and-trade system in which the overall volume of greenhouse gases that can be emitted by the installations or activities covered by the EU-ETS is limited by a cap on the number of emission allowances. In that context, in accordance with Article 4(2) of Commission Delegated Regulation (EU) 2019/331 of 19 December 2018 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2019 L 59, p. 8), the installations covered by the EU-ETS must report their historical activity levels by means of the baseline data report when applying for a free allocation.

10 Furthermore, under Article 10(1) of Directive 2003/87/EC 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 (OJ 2003 L 275, p. 32), ‘from 2019 onwards, Member States shall auction all allowances that are not allocated free of charge in accordance with Articles 10a and 10c of this Directive’.

11 Thus, Article 3(1) of Commission Implementing Regulation (EU) 2019/1842 of 31 October 2019 laying down rules for the application of Directive 2003/87 as regards further arrangements for the adjustments to free allocation of emission allowances due to activity level changes (OJ 2019 L 282, p. 20) provides that, ‘starting in 2021, the operators of installations to which free allocation has been given … shall report annually on the activity level of each sub-installation in the preceding calendar year’ and that, ‘in 2021, this report shall include data for the two years preceding its submission’. Under Article 3(3) of that implementing regulation, those reports are to be submitted together with a verification report, issued by a verifier, pursuant to Commission Implementing Regulation (EU) 2018/2067 of 19 December 2018 on the verification of data and on the accreditation of verifiers pursuant to Directive 2003/87 (OJ 2018 L 334, p. 94). Article 3(3) of that implementing regulation defines verifier as an accredited legal person or another legal entity ‘carrying out verification activities pursuant to th[at] [r]egulation’.

12 Next, under Article 11 of Commission Implementing Regulation (EU) 2018/2066 of 19 December 2018 on the monitoring and reporting of greenhouse gas emissions pursuant to Directive 2003/87 and amending Commission Regulation (EU) No 601/2012 (OJ 2018 L 334, p. 1), each operator is to monitor greenhouse gas emissions on the basis of a monitoring plan approved by the competent authority aimed at describing instructions to the operator or aircraft operator in a logical and simple manner, avoiding duplication of effort and taking into account existing systems in place at the installation or used by the operator.

13 Furthermore, in accordance with Article 8(1) of Delegated Regulation 2019/331, ‘the operator of an installation applying for free allocation … shall draw up a monitoring methodology plan containing, in particular, a description of the installation and its sub-installations, the production processes and a detailed description of monitoring methodologies and data sources’ and ‘the monitoring methodology plan shall comprise a detailed, complete and transparent documentation of all relevant data collection steps, and shall contain at least the elements laid down in Annex VI’.

14 According to Article 7(1) of Delegated Regulation 2019/331, ‘operators shall determine complete and consistent data and ensure that there are no overlaps between sub-installations and no double counting’ and ‘operators shall apply the determination methods laid down in Annex VII, exercise due diligence and use data sources representing highest achievable accuracy pursuant to section 4 of Annex VII’. Article 7(2) of that delegated regulation provides for the possibility, under certain conditions, of using other data sources in accordance with sections 4.4 to 4.6 of Annex VII to that delegated regulation.

15 In the present case, on 28 October 2020, the Agenția Națională pentru Protecția Mediului (ANPM) (National Environmental Protection Agency, Romania), the competent authority under Article 3 of Implementing Regulation 2019/1842, informed the operators of installations located in Romania, including the applicant, of the obligation to submit activity level reports (‘ALC reports’).

16 On 9 March 2021, the applicant sent the ANPM ALC reports for 2021 in respect of its Valea Mare-Pravăț and Fieni installations containing data for 2019 and 2020.

17 Following the ANPM’s request to the applicant to make certain amendments to its ALC reports for 2021, the applicant submitted, on 28 April 2021, updated ALC reports for that year.

18 Irrespective of the procedure concerning the submission of the applicant’s ALC reports relating to changes in the activity level, with regard to the initial allocation of free emission allowances, by decision of 29 June 2021 instructing the Central Administrator of the European Union Transaction Log to enter the national allocation tables of Belgium, Bulgaria, Czechia, Denmark, Germany, Estonia, Ireland, Greece, Spain, France, Croatia, Italy, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, Netherlands, Austria, Poland, Portugal, Romania, Slovenia, Slovakia, Finland and Sweden into the European Union Transaction Log (OJ 2021 C 302, p. 1), the European Commission fixed, in accordance with Article 23(4) of Delegated Regulation 2019/331, the initial allocation of free allowances for each year of the 2021-2025 period at 101 245 for the applicant’s installation located in Fieni and at 108 201 for the applicant’s installation located in Valea Mare-Pravăț.

19 On 15 September 2021, for the purposes of the applications for allocation level changes, the ANPM submitted to the Commission the ALC reports for the applicant’s installations located in Valea Mare-Pravăț and Fieni, as amended by the applicant (see paragraph 17 above), given that they had surpassed the 15% threshold beyond which a change in activity levels warrants a recalculation of the allowances to be allocated free of charge, in accordance with Article 10a(20) of Directive 2003/87.

20 On 1 December 2021, the Commission, via the ANPM, asked the applicant to verify whether the free lime and magnesium oxide content had been reported correctly, as per Question 2.1 of its FAQ (frequently asked questions) of 24 September 2021 on the free allocation rules for the allocation level changes of the EU-ETS post-2020 (‘FAQ/Question 2.1’) without expressly referring to the corresponding formula set out in that document (‘the FAQ/Question 2.1 formula’), given that the uncorrected quantity of lime produced appearing in section H.II.b of the ALC template, multiplied by the free lime and magnesium oxide content from section H.II.c of that template, did not correlate with the annual emissions reported.

21 On 2 December 2021, the applicant, via the ANPM, responded to the Commission’s request of 1 December 2021, providing clarifications on the method used for its calculations.

22 On 8 December 2021, the Commission, via the ANPM, replied to the applicant’s observations. Thus, it acknowledged that the applicant could choose its approach to determining the lime and magnesium oxide content and the corresponding emissions, while stressing the importance of providing accurate data using the chosen method. It added that, in such a case, the FAQ/Question 2.1 formula had to be satisfied and that the result of the equation had to correspond to the process emissions stated in the annual greenhouse gas emissions report. The applicant replied the following day, justifying its refusal to amend its ALC reports, in particular because it had followed a legally authorised method and that there was no need to change it. That was followed by a new communication from the Commission by which that institution rejected the applicant’s arguments and asked it to amend its ALC reports concerning the free lime and magnesium oxide content, while indicating that consistency with Implementing Regulation 2018/2066 would be assured.

23 On 3 January 2022, while expressing its objection, the applicant submitted to the ANPM the ALC reports for 2021, containing the data for 2019 and 2020 in respect of its installations located in Valea Mare-Pravăț and Fieni, amended following the Commission’s request for correction of its ALC reports. The Commission accepted those amendments.

24 By the contested decision, the Commission changed the allowances fixed in the decision referred to in paragraph 18 above, allocated for free from 2021 to the applicant’s installations located in Valea Mare-Pravăț and Fieni. Thus, by that decision, for each year of the 2021-2025 period, the applicant was to receive free allowances amounting to 125 094 for the installation located in Fieni and to 137 369 for the installation located in Valea Mare-Pravăț.

27 In support of the action, the applicant relies on four pleas in law, alleging (i) breach of the obligation to state reasons, (ii) infringement of the right to be heard and of the right to good administration, (iii) an error of law and a manifest error of assessment and (iv) breach of the principles of equal treatment, legal certainty and protection of legitimate expectations.

28 The applicant submits that the contested decision contains no explanation of the fact that the changes to Romania’s national allocation table result from the application of the FAQ/Question 2.1 formula. According to the applicant, that decision does not detail the decision-making process that led to the determination of the quantity of free allowances to be allocated to its two installations, namely those located in Valea Mare-Pravăț and Fieni, for the years 2021 to 2025, or the reasons behind the rejection of its arguments, despite their having been put forward on multiple occasions. Thus, the Commission did not indicate the essential reasons for which its application of the FAQ/Question 2.1 formula prevailed over the binding legislation.

29 The applicant adds that the correspondence via the ANPM or the reasoning given in the external documents cannot substitute for the insufficient reasoning in the contested decision.

30 The applicant complains, in particular, of the inconsistency of the contested decision in relation to the evidence and arguments that it provided, of the improper nature of the Commission’s request for the redrafting of correctly compiled tables and reports and of the Commission’s failure to observe fully all relevant regulations in force.

32 It must be recalled that, according to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose clearly and unequivocally the reasoning followed by the institution which adopted it, in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the EU judicature to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, inasmuch as the question whether the statement of reasons meets the requirements of that provision must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment of 26 July 2017, ArcelorMittal Atlantique et Lorraine, C‑80/16, EU:C:2017:588, paragraph 52 and the case-law cited).

33 In the case at hand, as is indicated in paragraph 20 above, on 1 December 2021, in the course of its exchange with the applicant, via the ANPM, the Commission indicated that the uncorrected quantity of lime produced, multiplied by the free lime and magnesium oxide content, did not correlate with the annual emissions reported by the applicant.

34 On 8 December 2021, as is set out in paragraph 22 above, the Commission provided further explanations.

35 On 20 December 2021, the Commission also explained to the applicant that the 5% threshold for the materiality level relating to differences in the total reported emissions, provided for in Article 23 of Implementing Regulation 2018/2067, relied on in the applicant’s reply of 9 December 2021, was not a tolerance band. It added that whenever the verifier came across any misstatements, non-conformities or non-compliances, they needed to be corrected, regardless of whether they were below the 5% threshold.

36 While those explanations are not reproduced as such in the contested decision, they were examined during the administrative procedure. Thus, such explanations, forming part of the context in which the contested decision had been adopted, were known to the applicant, which, moreover, refers to them in the application. What is more, as the applicant asserts, it submitted to the ANPM the ALC reports for 2021 in respect of its installations located in Valea Mare-Pravăț and Fieni, amended following the exchanges with the Commission and in accordance with that institution’s request for the ALC reports to be amended. It follows that the free quotas fixed in the contested decision are apparent from those amended reports of which the applicant was the author.

37 In addition, contrary to what the applicant maintains, it was capable of understanding the reasons for which the Commission had considered that the quantities of free allowances allocated to its installations located in Valea Mare-Pravăț and Fieni had to be lower than those to which it considered itself entitled. It is apparent from the second to fourth pleas in law that the applicant has been able to challenge the legality of the contested decision by invoking specific arguments of fact and law.

38 Furthermore, in the light of the case-law cited in paragraph 32 above, according to which the statement of reasons must be appropriate to the measure at issue, and in view of the fact that the contested decision concerned several hundred installations, the Commission cannot be required to provide, in that decision, an individual and exhaustive statement of reasons relating to the quantities of free allowances allocated to each installation concerned.

39 As regards the applicant’s arguments set out in paragraph 30 above, which resemble a challenge of the merits of the contested decision, they must be rejected as ineffective in so far as they have been put forward in support of the present plea. It should be recalled that the obligation to state reasons must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (see judgment of 6 February 2020, Compañía de Tranvías de la Coruña v Commission, T‑485/18, EU:T:2020:35, paragraph 21 and the case-law cited).

40 It follows that the statement of reasons underpinning the contested decision as regards the applicant’s installations enabled the applicant to understand and challenge that decision and the Court to review its legality.

Second plea: infringement of the right to be heard and of the right to good administration

42 The applicant submits that the Commission failed to process its ALC reports within a reasonable period of time. In its view, the Commission did not process those reports, which had been submitted in April 2021, until December 2021. It considers that, as a result of that delay in processing those reports, it was forced either to amend them using the FAQ/Question 2.1 formula or to accept the risk of the ANPM suspending the issue of free emission allowances.

43 According to the applicant, had the Commission examined its ALC reports within a reasonable period of time, it would have had time to be heard properly and, in particular, to present its arguments demonstrating why the Commission’s statements of December 2021 were unfounded. At the hearing, the applicant added that, because of the lack of time and the late questions from the Commission, it had not been able to engage in a more detailed discussion with that institution, while confirming that it had not requested an extension of the deadline in order to provide a more complete answer to the Commission’s questions.

44 The applicant also emphasises that the contested decision was approved only on 14 February 2022, that is to say more than one month after the applicant had submitted the amended ALC reports in January 2022. Moreover, that decision was published in the Official Journal of the European Union more than three months after the submission of those reports, that is to say on 13 April 2022.

45 In addition, the applicant claims that, in the Commission’s reply of 8 December 2021 to its observations, certain of its arguments were not addressed.

47 In the first place, as regards the alleged infringement of the right to be heard, it is apparent from the case-law that respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the proceedings in question. The right to be heard guarantees every person the opportunity to make known his or her views effectively during the administrative procedure and before the adoption of any decision liable to affect his or her interests adversely (judgments of 26 September 2014, Arctic Paper Mochenwangen v Commission, T‑634/13, not published, EU:T:2014:828, paragraph 104, and of 26 July 2023, Arctic Paper Grycksbo v Commission, T‑269/21, EU:T:2023:429, paragraph 88).

48 In the case at hand, the applicant essentially invokes infringement of its right to be heard in that it was not heard properly and was unable to put forward its arguments to demonstrate that the Commission’s statements of December 2021 were unfounded.

49 In that respect, the procedure provided for in Article 23(4) of Delegated Regulation 2019/331 does not put in place a procedure between the Commission and installation operators. The purpose of that procedure is for the Commission to adopt a decision based on the notification sent by the competent authority of the Member State concerned, relating to any change in the operation of an installation that has an impact on the free allocation of allowances to that installation. Thus, that procedure is not initiated against an operator or an installation (see, to that effect, judgment of 26 July 2023, Arctic Paper Grycksbo v Commission, T‑269/21, EU:T:2023:429, paragraph 89).

50 In addition, Article 23(4) of Delegated Regulation 2019/331 does not provide for a specific procedural right in favour of the operators of the installations concerned. In that regard, Article 3 of that delegated regulation states that Member States must make the appropriate administrative arrangements to ensure the application of the rules provided for by that delegated regulation. In that context, the applicant has not claimed that, before the ANPM, it was not in a position to make known its views effectively (see, to that effect, judgments of 26 September 2014, Arctic Paper Mochenwangen v Commission, T‑634/13, not published, EU:T:2014:828, paragraph 105, and of 26 July 2023, Arctic Paper Grycksbo v Commission, T‑269/21, EU:T:2023:429, paragraph 90).

51 In any event, it should be pointed out that, as is set out in paragraphs 21 and 22 above, by emails of 2 and 9 December 2021, the applicant was able to state its position, via the ANPM, on the Commission’s observations on the ALC reports.

52 It follows that, in the case at hand, in accordance with the case-law cited in paragraph 47 above, the applicant had the opportunity to make known its views effectively during the administrative procedure and before the adoption of the contested decision.

53 Accordingly, the complaint alleging infringement of the right to be heard must be rejected as unfounded.

54 In the second place, as regards the alleged infringement of the right to good administration, it should be recalled that that right, laid down in Article 41 of the Charter of Fundamental Rights of the European Union, entails inter alia, by virtue of paragraph 1 thereof, the right of every person to have his or her affairs handled within a reasonable time by the institutions, bodies, offices and agencies of the Union.

55 According to settled case-law, the reasonableness of the duration of an administrative procedure must be appraised in the light of the circumstances specific to each case and, in particular, its context, the various procedural stages followed by the Commission, the conduct of the parties in the course of the procedure, the complexity of the case and its importance for the various parties involved (judgments of 19 March 1997, Oliveira v Commission, T‑73/95, EU:T:1997:39, paragraph 41, and of 11 December 2017, Léon Van Parys v Commission, T‑125/16, EU:T:2017:884, paragraph 51).

56 As it has indicated, the Commission received the applicant’s ALC reports via the ANPM on 15 September 2021 and, within a period of two and a half months, in addition to the reports for the other installations examined, it carried out an initial check of those reports and forwarded the data that it received to its external contractor, which analysed 1 531 applications for allocation level changes and informed it, on 30 November 2021, of the inconsistencies in the data submitted by the applicant. It is apparent from the file, however, that, on 1 December 2021, the ANPM sent the applicant the Commission’s observations and that that institution, via the ANPM, had an exchange with the applicant which ended on 3 January 2022.

57 In those circumstances, given the number of applications and the complexity of the analysis carried out, which required the intervention of an external contractor, the procedure before the Commission, between 15 September and 1 December 2021, during which it processed the ALC reports, in particular those of the applicant, must be regarded as having taken place within a reasonable period. In that regard, it should be specified that that period is examined from 15 September 2021 and not from 28 April 2021, since it is from the notification by the ANPM of an ALC report that the Commission must adopt its decision.

58 It should also be noted that, following the Commission’s exchange with the applicant via the ANPM, on 13 January 2022 the applicant sent the ANPM a revised application for allocation level changes. It is apparent from recital 16 of the contested decision that Romania notified the changes to its national allocation table to the Commission on 25 January 2022. That institution, however, adopted the contested decision on 14 February 2022, that is to say approximately 20 days after having received that notification, which constitutes a reasonable period for the adoption of that decision, which, moreover, concerned 923 installations. Furthermore, the applicant’s argument relating to the publication of that decision on 13 April 2022 must be rejected in so far as the applicant has not set out the impact of the delay in publication on its situation.

59 Consequently, the complaint alleging infringement of the right to good administration must be rejected, as must, accordingly, the second plea in its entirety.

60 The present plea is divided into two parts, the first alleging an error of law and the second alleging a manifest error of assessment.

61 The applicant submits that, by making the approval of its ALC reports conditional on the use of the FAQ/Question 2.1 formula, the Commission infringed EU legislation. It claims that it used a method provided for by that legislation to determine the free lime and magnesium oxide content in the lime produced, which was the most accurate source of data available. It thus argues that it complied (i) with Article 7 of Delegated Regulation 2019/331 and with section 4.6 of Annex VII thereto, (ii) with the greenhouse gas emissions permit issued to it, (iii) with the monitoring methodology plans applicable to its installations, as had been approved by the ANPM, on 4 June 2020, under Article 8(4) of that delegated regulation, and (iv) with the methodology used in the previous allocation period.

62 The applicant argues that the ANPM had already reviewed its ALC reports for 2021. In addition, the Commission described for the first time the FAQ/Question 2.1 formula – which is not binding – after the expiry of the deadline for submitting those ALC reports.

63 In that regard, the applicant adds that the FAQ/Question 2.1 formula can be applied only if it is compatible with Delegated Regulation 2019/331 and with Implementing Regulation 2018/2066, including with the monitoring plans approved under Article 12(1) of that implementing regulation and with the monitoring methodology plans. In the applicant’s view, however, that formula has no legal value, having been published without prior transparency or debate several years after the data in question, as used in the ALC reports, were generated, transmitted, verified and relied upon by verifiers, the ANPM and the Commission itself.

64 The applicant states that, while having expressed its disagreement with the FAQ/Question 2.1 formula, it amended its ALC reports for 2021 in respect of its installations located in Fieni and Valea Mare-Pravăț with the sole aim of avoiding more damaging economic consequences. On the basis of that amendment, the Commission adopted the contested decision, reducing the free allocations for those installations compared to the allocations that would have been made based on the calculation of the activity level of those installations made using Method A.

65 In that context, the applicant recalls that section 4 of Annex II to Implementing Regulation 2018/2066 authorises the use of two alternative methods of calculating emissions, namely Method A, which is input based, and Method B, which is output based. The choice between the two methods is made in the monitoring plan provided for in Article 11 of that implementing regulation, approved by the competent national authority. In the case at hand, the ANPM approved the monitoring plans for the applicant’s installations located in Fieni and Valea Mare-Pravăț and its choice of Method A is also reflected in the monitoring methodology plans approved by the ANPM. The applicant maintains that it used the latter method, first, in order to determine the historical activity level confirmed by an accredited verifier, validated by the ANPM and approved by the Commission in its decision of 29 June 2021 concerning inter alia preliminary allocations for the 2021-2025 period to those installations. It emphasises that it applied the same method, second, in order to compile the final version of the ALC reports for those installations, submitted to the ANPM on 28 April 2021, validated by the ANPM and sent to the Commission, in accordance with Article 23(2) of Delegated Regulation 2019/331.

66 The applicant states that the Commission, which had previously never challenged the elements approved by the ANPM, was not legally entitled to request amendments after the approval of the monitoring plans by the ANPM. On the contrary, the Commission’s views could be taken into consideration in future amendments to monitoring plans and monitoring methodology plans, but not in the procedure for submitting ALC reports.

67 Thus, the applicant takes the view that, in direct contradiction of the applicable legal provisions, the Commission unjustifiably arrogates to itself the role of ‘supreme verification filter’, disregarding any authorisation, monitoring plan, monitoring methodology plan or verification report obtained by the applicant.

69 In that regard, as has been set out in paragraph 20 above, on 1 December 2021, the Commission asked the applicant, via the ANPM, to verify whether the free lime and magnesium oxide content had been reported correctly, in accordance with FAQ/Question 2.1, without expressly referring to the FAQ/Question 2.1 formula, given that the uncorrected quantity of lime produced, multiplied by that content, did not correlate with the annual emissions reported.

70 In its defence, the Commission sets out the calculations, the elements of which are taken from the figures communicated by the applicant to the ANPM and showing inconsistencies, in particular, in the ratio of the process emissions to the standardised lime production.

71 The applicant, without providing figure-based explanations for those inconsistencies, merely refers to its monitoring plans, its methodological monitoring plans and its ALC reports, which were approved by the ANPM, and to the use of Method A authorised by the applicable legislation and to the unlawful nature of the FAQ/Question 2.1 formula.

72 As is apparent from paragraph 69 above, on 1 December 2021, the Commission, via the ANPM, asked the applicant to verify whether the free lime and magnesium oxide content had been reported correctly in accordance with FAQ/Question 2.1, without expressly referring to the FAQ/Question 2.1 formula.

73 Next, on 8 December 2021, as is apparent from paragraph 22 above, the Commission, via the ANPM, acknowledged that the applicant could choose its approach to determining the lime and magnesium oxide content and the corresponding emissions, while stressing the importance of providing accurate data using the chosen method. In the context of the latter requirement, it added that the FAQ/Question 2.1 formula had to be satisfied and that the result of the equation had to correspond to the process emissions stated in the greenhouse gas emissions report. It is apparent from that formula that its purpose is not to determine the process emissions of the installations concerned, but to verify whether those data are consistent. Thus, it is not apparent from FAQ/Question 2.1 that, in the event that the data provided for a particular installation do not satisfy that formula, the Commission will correct the data for that installation. In such a case, it is for the operator of the installation to make changes in order to ensure the consistency and accuracy of its data, in accordance with Article 7 of Delegated Regulation 2019/331. In the present case, the Commission specifically asked the applicant to correct the inconsistencies in the data provided, as that institution confirmed at the hearing.

74 At the hearing, the Commission confirmed that it had not requested a change in the method used by the applicant, but that it had merely signalled the presence of inconsistencies in the data submitted by the applicant in its ALC reports in order to correct them.

75 Furthermore, it is true that section 4 of Annex II to Implementing Regulation 2018/2066 authorises the use of Method A for the calculation of emissions. However, the use of that method does not relieve operators of their obligation to provide the most accurate and consistent data, in accordance with Article 7 of Delegated Regulation 2019/331, and to correct their data in the event of any inconsistency therein.

76 As regards the use of the FAQ/Question 2.1 formula, it is appropriate to find that, indeed, as the applicant submits, that formula appears in a document issued by the Commission’s services on 24 September 2021 and is therefore subsequent to the submission of the ALC reports by the applicant on 28 April 2021. Moreover, it is expressly stated in that document that it is not binding.

77 However, on the one hand, it should be noted that the applicant does not call into question the fact that, as the Commission asserts, the FAQ/Question 2.1 formula derives directly from the stoichiometry of the decarbonation reaction.

78 On the other hand, irrespective of the method used by the applicant to determine the process emissions of the installations concerned, the resulting figures must be consistent, in accordance with Article 7 of Delegated Regulation 2019/331. The FAQ/Question 2.1 formula proposed by the Commission is therefore merely a verification tool intended to assist the applicant.

79 It follows that, by using the FAQ/Question 2.1 formula, the Commission did not impose a new method on the applicant. Consequently, the applicant cannot rely on the date of publication of the document containing that formula, or maintain that it constitutes a new method or obliged it to adopt a new one.

80 In the light of the foregoing, it must be concluded that, in adopting the contested decision, the Commission committed no error in law.

82 The applicant sets out the calculation method that it used and submits that the comparison of the free oxides concentrations obtained by the ‘method’ established in the FAQ/Question 2.1 formula is not realistic in the light of the real measurement results obtained by its laboratory. In addition, it indicates that it calculated the volume of free lime and magnesium oxide using the formula in Guidance Document No 9 on the harmonised free allocation methodology for the EU-ETS post-2020. Furthermore, it claims that the Commission failed to take into account the amount of kiln dust relevant for the production of lime and for the calcination of dolomite or magnesite.

83 According to the applicant, the Commission took the view that, in order to determine the free allocation of allowances, Method A did not enable the distribution of free oxides between lime and magnesium oxide to be determined accurately. However, that conclusion is not supported by either applicable rules or the facts. The applicant maintains that that method, which it used and which it had included in the monitoring methodology plans, was wrongly rejected by the Commission in favour of the ‘method’ established in FAQ/Question 2.1, which contradicts the guidelines laid down by the Commission which were applicable at the time that the applicant’s ALC reports for 2021 were finalised.

84 In particular, the applicant takes issue with the Commission for not having indicated in a concrete manner how none of the documentation that it had submitted over time provided accurate data and for having merely invoked the FAQ/Question 2.1 formula that that institution itself created.

85 The applicant stresses the importance of monitoring methodology plans which guarantee compliance with the applicable principles and the use of data of the highest accuracy. The use of the FAQ/Question 2.1 formula for the ALC reports, as required by the Commission, however, led to an unrealistic free oxides content and to a reduction in the free allocation of allowances. According to the applicant, the Commission thus imposed an inconsistent correction on its data by improperly combining two different methods.

86 The applicant submits that applying the FAQ/Question 2.1 formula results in a difference of less than 5%. Therefore, under the materiality threshold defined in Article 23 of Implementing Regulation 2018/2067 and in Article 22 of Implementing Regulation 2018/2066, no changes in the monitoring methodology were required.

88 According to the case-law, in a complex and evolving area of technology such as that in the present case, the competent EU authorities have a broad discretion, in particular as to the assessment of highly complex scientific and technical facts, in order to determine the nature and scope of the measures which they adopt, whereas review by the EU Courts has to be limited to verifying whether there has been a manifest error of assessment or a misuse of powers, or whether those authorities have manifestly exceeded the limits of their discretion. In such a context, the EU Courts cannot substitute their own assessment of scientific and technical facts for that of the EU authorities, on which alone the FEU Treaty has conferred that task (see judgment of 26 July 2023, Arctic Paper Grycksbo v Commission, T‑269/21, EU:T:2023:429, paragraph 130 and the case-law cited).

89 It is appropriate to state that the EU authorities’ broad discretion, which implies limited judicial review of its exercise, applies not only to the nature and scope of the measures to be taken but also, to some extent, to the finding of the basic facts. However, even though such judicial review is of limited scope, it requires that the EU authorities which have adopted the act in question must be able to show before the EU Courts that in adopting the act they actually exercised their discretion, which presupposes the taking into consideration of all the relevant factors and circumstances of the situation that the act was intended to regulate (see judgment of 26 July 2023, Arctic Paper Grycksbo v Commission, T‑269/21, EU:T:2023:429, paragraph 131 and the case-law cited).

90 It is therefore for the EU Courts, in the light of the evidence relied on by the applicant, to establish whether that evidence relied on is factually accurate, reliable and consistent, and to determine whether that evidence contains all the information which must be taken into account in order to assess a complex situation, and also whether it is capable of substantiating the conclusions drawn from it (see judgment of 26 July 2023, Arctic Paper Grycksbo v Commission, T‑269/21, EU:T:2023:429, paragraph 132 and the case-law cited).

91 It should be specified that, in order to establish that an institution committed a manifest error in its assessment of complex facts such as to justify the annulment of that act, the evidence adduced by the applicant must be sufficient to make the factual assessments used in that act implausible (see, to that effect, judgment of 16 December 2020, Balti Gaas v Commission and INEA, T‑236/17 and T‑596/17, not published, EU:T:2020:612, paragraph 151 and the case-law cited).

92 It is in the light of those considerations that the present part must be examined.

93 In the present case, first of all, as has been observed in paragraph 70 above, the Commission has set out the calculations showing the inconsistencies detected in the data provided by the applicant. The applicant, without contesting the veracity of the figures presented by the Commission and without providing corrected figures, merely advances its monitoring plans, its monitoring methodology plans and its ALC reports, as well as the use of Method A, without providing figure-based explanations.

94 Moreover, the applicant’s line of argument based on the use of the FAQ/Question 2.1 formula cannot succeed. As is apparent from paragraph 75 above, the applicant cannot be relieved of the obligation to provide accurate and consistent data, in accordance with Article 7 of Delegated Regulation 2019/331, in order to be able to receive a more favourable quantity of allowances.

95 Consequently, the applicant cannot infer from the use of the FAQ/Question 2.1 formula that, in adopting the contested decision, the Commission committed a manifest error of assessment.

96 Next, as regards the alleged failure to take into account the amount of kiln dust relevant for the production of lime and for the calcination of dolomite or magnesite, as the Commission contends, the applicant does not explain specifically how that item of data had to be taken into account by the Commission, particularly since Implementing Regulation 2018/2066, on which the applicant relies, refers to it only in the context of the use of Method B. In the present case, however, the applicant had chosen Method A.

97 Furthermore, in the context of the present part, the applicant cannot rely on Guidance Document No 9 on the harmonised free allocation methodology for the EU-ETS post-2020 and the formula which appears there and which it used. It is, in any event, required to present consistent data and, where appropriate, to correct any inconsistencies identified by the Commission, which means that, even if it used that formula, it had to respond to the Commission’s request to correct the inconsistencies identified.

98 Lastly, it is necessary to reject the applicant’s argument that the application of the FAQ/Question 2.1 formula results in a difference of less than 5% between the two methods, such that there was no need to amend the monitoring methodology. As has been concluded in paragraph 74 above, the Commission did not impose a change in the applicant’s monitoring methodology.

99 Consequently, it must be concluded that the applicant has not adduced sufficient evidence, in accordance with the case-law cited in paragraph 91 above, to make implausible the factual assessments made by the Commission underpinning the contested decision.

100 In the light of the foregoing, it must be concluded that the applicant has not adduced evidence to show that the contested decision was vitiated by a manifest error of assessment.

101 Consequently, the present part must be rejected, as must, accordingly, the third plea in its entirety.

Fourth plea: breach of the principles of equal treatment, legal certainty and protection of legitimate expectations

102 The present plea is divided into two parts, the first alleging breach of the principle of equal treatment and the second alleging breach of the principles of legal certainty and of protection of legitimate expectations.

103 The applicant submits that, by requiring the use of the ‘method’ established in FAQ/Question 2.1 for the submission of the ALC reports, the Commission treated its installations differently from other installations which do not reach the 15% materiality threshold laid down in Article 10a(20) of Directive 2003/87 and for which, therefore, there is no change in the level of the free allocation of allowances. In its view, that situation, in turn, worsens its competitive standing in the market.

105 The general principle of equal treatment, which is one of the fundamental principles of EU law, requires that similar situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 26 July 2023, Arctic Paper Grycksbo v Commission, T‑269/21, EU:T:2023:429, paragraph 146 and the case-law cited).

106 In that respect, under Article 10a(20) of Directive 2003/87, exceeding the 15% threshold, referred to in paragraph 19 above, brings about an adjustment of the level of free allocations given to installations whose activities have increased or decreased. In the present case, installations whose change in activity levels exceeds the threshold are in a different situation from that of installations whose change is below that threshold. Therefore, that provision merely provides for different treatment for those different situations, in accordance with the general principle of equal treatment.

Second part: breaches of the principles of legal certainty and of protection of legitimate expectations

108 The applicant claims that the Commission expressed the need to apply the FAQ/Question 2.1 formula – which is not binding – long after the deadline for submitting the ALC reports for its installations located in Fieni and Valea Mare-Pravăț and after the applicant had complied with the ANPM’s requests for amendments by submitting, in April 2021, the final versions of the ALC reports for 2021. Thus, according to the applicant, without giving any objective reasons for introducing that change, the Commission retroactively amended the rules for preparing the ALC reports after the date by which those reports had to be completed and submitted.

109 In addition, the applicant submits that the Commission imposed the use of the FAQ/Question 2.1 formula only for the submission of the ALC report, while the data resulting from Method A for the calculation of the free lime and magnesium oxide content of the lime produced continue to determine the historical activity level used for approving the preliminary allocations and the emissions quantities.

110 The applicant submits that that approach breached its legitimate expectation that the ALC reports could be completed by using the data generated in accordance with the authorisations, monitoring plans and monitoring methodology plans approved by the ANPM.

112 In that regard, it is apparent from case-law that the principle of legal certainty, the corollary of which is the principle of the protection of legitimate expectations, requires, inter alia, that rules of law be clear, precise and predictable in their effect, especially when they may have adverse consequences on individuals and undertakings (see judgment of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraph 100 and the case-law cited). In particular, according to that principle, EU law must allow those concerned to know unequivocally what their rights and obligations are and to take steps accordingly (see judgment of 25 November 2021, Aurubis, C‑271/20, EU:C:2021:959, paragraph 69 and the case-law cited).

113 In addition, according to settled case-law, in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, the substantive rules of EU law must be interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, objectives or general scheme that such effect must be given to them (see judgment of 14 May 2020, Azienda Municipale Ambiente, C‑15/19, EU:C:2020:371, paragraph 56 and the case-law cited).

114 As to the possibility of relying on the principle of the protection of legitimate expectations, it follows from settled case-law that such protection is afforded to each economic operator with regard to whom an institution has given rise to justified hopes. Within the meaning of that case-law, in whatever form it is given, information which is precise, unconditional and consistent and comes from authorised and reliable sources constitutes assurances capable of giving rise to such hopes (see judgment of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraph 110 and the case-law cited).

115 In the present case, in the first place, according to the case-law cited in paragraph 113 above, observance of the principles of legal certainty and the protection of legitimate expectations presupposes, in principle, the existence of previously existing situations.

116 In the present case, however, it is apparent from the Commission’s decision of 29 June 2021, referred to in paragraph 18 above, that, in that decision, the applicant had been allocated amounts of free allowances which were less than those allocated to it in the contested decision. However, the applicant does not explain by which act the Commission allocated it free allowances in excess of those allocated in the contested decision capable of giving rise to a previously existing situation.

117 In the second place, it is apparent from Article 11 of Implementing Regulation 2018/2066 and from Article 8(1) of Delegated Regulation 2019/331 that neither the monitoring plans nor the monitoring methodology plans contain precise data, such that the approval of those plans by the ANPM – which, moreover, is not an EU institution capable of giving rise to a legitimate expectation within the meaning of the case-law cited in paragraph 114 above – cannot give the applicant justified hopes as to the free allowances allocated.

118 In the third place, as the Commission asserted at the hearing, it became aware in this case that the formula in Guidance Document No 9 on the harmonised free allocation methodology for the EU-ETS post-2020 was incorrect. The applicant maintains, however, without being contradicted by the Commission, that it had applied that formula for the purposes of the preparation of its ALC reports for 2021. In addition, as the Commission stated at the hearing, the FAQ/Question 2.1 formula was published for the first time on 24 September 2021, that is to say after those reports had been submitted on 9 March 2021 (see paragraph 16 above) and after the Commission had received them on 15 September 2021 (see paragraph 19 above). Accordingly, the applicant could place its trust in that guidance document and in the formula contained therein when preparing the said reports.

119 However, in accordance with Article 7(1) of Delegated Regulation 2019/331 and as the applicant itself emphasises, operators are to send ‘complete and consistent data’. Thus, in the present case, that rule of law stemming from a binding act was clear, precise and predictable in its effects, thus allowing it to know unequivocally what its rights and obligations are. Consequently, even having used the formula from Guidance Document No 9 on the harmonised free allocation methodology for the EU-ETS post-2020, the applicant could not rely on a legitimate expectation in relation to the data which result from it, such that, had an inconsistency been detected in its calculations, it was obliged to correct it. As has been noted in paragraphs 71 and 93 above, however, it did not provide figure-based data explaining the inconsistencies invoked by the Commission.

120 It follows that, pursuant to the case-law cited in paragraph 114 above, the applicant cannot rely on the principle of legitimate expectations and of legal certainty in that regard. As has been noted in paragraph 78 above, the FAQ/Question 2.1 formula is merely a verification tool offered in order to assist the applicant; there was nothing to prevent the applicant from using another approach capable of correcting the inconsistencies identified by the Commission.

121 In the light of the foregoing, the present part must be rejected, as must, accordingly, the fourth plea in its entirety.

123 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

124 Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

2. Orders Carmeuse Holding SRL to bear its own costs and to pay those incurred by the European Commission.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Carmeuse Holding v Commission (Environment - Scheme for greenhouse gas emission allowance trading - Judgment) [2024] EUECJ T-385/22 (11 December 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/T38522.html Cite as: [2024] EUECJ T-385/22, ECLI:EU:T:2024:893, EU:T:2024:893

Court of Justice of the European Communities (including Court of First Instance Decisions)