Key facts of the case:
Reference for a preliminary ruling — Environment — Scheme for greenhouse gas emission allowance trading — Directive 2003/87/EC — Penalty for excess emissions — No exculpatory cause in the event of actual holding of non-surrendered allowances, unless force majeure — No possibility of varying the amount of the penalty — Proportionality — Articles 20, 41, 47 and Article 49(3) of the Charter of Fundamental Rights of the European Union — Principle of the protection of legitimate expectations.
Outcome of the case:
On those grounds, the Court (Sixth Chamber) hereby rules:
28) It is in those circumstances that the Cour administrative (Higher Administrative Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Is Article 12(3) of Directive 2003/87, which provides that Member States must ensure the surrender by their operators of the allowances issued, to be interpreted, in conjunction with Article 41 of the [Charter of Fundamental Rights of the European Union (‘the Charter’)], which enshrines the principle of sound administration, as requiring the competent national authority to carry out individual monitoring of surrender obligations, before the deadline of 30 April of the year concerned, where that same administration is responsible for monitoring a small number of operators, in this case 25 operators at national level?
(a) Does Article 49(3) of the Charter, which enshrines the principle of proportionality, preclude the fixing of a flat-rate fine to penalise non-surrender of emissions allowances, as provided for in Article 16(3) of Directive 2003/87, where that provision does not allow the imposition of a penalty proportionate to the infringement committed by the operator?
(b) If the answer to the previous question is in the negative, must the principle of equal treatment enshrined in Article 20 of the Charter, the general principle of good faith and the principle “fraus omnia corrumpit” be interpreted as precluding — as regards the flat-rate penalty to be imposed pursuant to Article 16(3) of Directive 2003/87, to which the publication provided for in Article 20(7) [of the Law of 23 December 2004] is automatically added — an operator acting in good faith, which is simply negligent and which furthermore believed that it had fulfilled its obligations to surrender emissions allowances by the relevant deadline of 30 April, from being treated in the same way as an operator which behaved fraudulently?
(c) If the answer to the previous question is in the negative, is the application of the flat-rate penalty, without any possibility of a variation by the national court, other than in cases of force majeure, [and] the automatic penalty of publication consistent with Article 47 of the Charter, which guarantees the existence of an effective remedy?
(d) If the answer to the previous question is in the negative, is it the case that the ratification of a financial penalty fixed on the basis of the EU legislature’s intention thus expressed [and] the automatic penalty of publication, without the involvement of the principle of proportionality, except in the case of force majeure as strictly interpreted, amounts to an abdication by the national court before the supposed intention of the EU legislature and to an improper lack of judicial review in the light of Article 47 and Article 49(3) of the Charter?
35) By its third question, which it is appropriate to examine first, the referring court asks, in essence, whether Articles 20 and 47 and Article 49(3) of the Charter must be interpreted as precluding there being no possibility for the flat-rate penalty provided for in Article 16(3) of Directive 2003/87 to be varied by a national court.
36) With regard, first of all, to Article 20 of the Charter, it should be recalled that the equality before the law which is set out therein is a general principle of EU law which requires that comparable situations must not be treated differently and different situations must not be treated alike unless such treatment is objectively justified (see, to that effect, judgment of 11 July 2006, Franz Egenberger, C‑313/04, EU:C:2006:454, paragraph 33).
40) With regard, next, to Article 47 of the Charter, assuming that the referring court considers that that article should allow the validity of Directive 2003/87 to be called into question inasmuch as that directive prevents the persons concerned from challenging the amount of the penalty imposed on them, it must be recalled that the Court has already ruled on that issue in the judgment in Billerud, and subsequently in the order of 17 December 2015, Bitter (C‑580/14, EU:C:2015:835), and held that the penalty system devised in Article 16 of that directive was not contrary to the principle of proportionality.
41) With regard, finally, to Article 49(3) of the Charter, according to which the severity of penalties must not be disproportionate to the criminal offence, in that respect too it is sufficient to refer, in any event, to the assessment in the light of the principle of proportionality already carried out by the Court in the judgment in Billerud.
42) Thus, the answer to the third question is that Articles 20 and 47 and Article 49(3) of the Charter must be interpreted as not precluding there being no possibility for the flat-rate penalty provided for in Article 16(3) of Directive 2003/87 to be varied by a national court.
43) By its first question, the referring court asks, in essence, whether Article 41 of the Charter must be interpreted as precluding it being merely optional for Member States, and not obligatory for them, to introduce warning, reminder and advance-surrender mechanisms allowing operators acting in good faith to be fully informed of their surrender obligation and thus not to run any risk of a penalty under Article 16(3) of Directive 2003/87.
44) It should be recalled at the outset that Article 41(1) of the Charter, that article being headed ‘Right to good administration’, states that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.
46) Consequently, an operator which is the subject of a penalty provided for in Article 16(3) of Directive 2003/87 cannot, in any event, derive from Article 41(2) of the Charter a right to be supported in the administrative procedure for the annual surrender of allowances (see, to that effect, judgment of 17 July 2014, YS and Others, C‑141/12 and C‑372/12, EU:C:2014:2081, paragraph 67).
47) Admittedly, the right to good administration, enshrined in that provision, reflects a general principle of EU law (judgment of 8 May 2014, N., C‑604/12, EU:C:2014:302, paragraph 49). However, by its first question, the referring court does not ask for an interpretation of that general principle but seeks to establish whether Article 41 of the Charter can establish an obligation for the competent authority of a Member State to carry out individual monitoring of surrender obligations.
49) The answer to the first question is therefore that Article 41 of the Charter must be interpreted as not applying to the issue of whether it is obligatory for Member States, and not merely optional for them, to introduce warning, reminder and advance-surrender mechanisms allowing operators acting in good faith to be fully informed of their surrender obligation and thus not to run any risk of a penalty under Article 16(3) of Directive 2003/87.
59 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Sixth Chamber) hereby rules: