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Borealis Polyolefine GmbH v. Bundesminister fur Land- und Fortswirtschaft, Umwelt und Wasserwirtschaft - (28 Apr 2016)

ECJ rules allowances under emissions scheme invalid


The European Court of Justice ruled invalid the maximum annual greenhouse emissions allowance determined by a European Commission decision in 2013.

The Court had received requests for preliminary ruling from several countries, including Austria and Italy. Questioned before court was a decision of the European Commission determining the correction factor for the allocation of permissible greenhouse gas emissions; specifically, whether the maximum annual allowances set therein were in consonance with the Article 10a(5) of Directive 2003/87/EC, which also provided a method for allocating allowances.

The Court noted, in the event of difference in language between provisions, the same would have to be taken into account considering its context and purpose. As such, Article 10(a)5 referred to emissions from installations that were to be included in the trading scheme only starting 2013. Since the Commission’s order considered such emissions to be part of the scheme from before 2013, the same deviated from the meaning in Article 10a(5) and was invalid.

The Court’s judgment granted 10 months in which the Commission could adopt remedial measures to comply with the ruling.


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