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Sweden / Supreme Court / 461-11

BillerudKorsnäs Sweden Ltd v Swedish Environmental Protection Agency

Policy area:
Deciding Body type:
National Court/Tribunal
Deciding Body:
Sweden / Supreme Court
Decision date:

Key facts of the case:

On 10 December 2007 National Environmental Protection Agency decided that Billerud Karlsborg Ltd. and Billerud Skärblacka Ltd. (now one company) should pay a charge to the State for from the companies' factories in accordance with Chapter 8, paragraph 6 of the Act on Trading of Emissions (2004:1199). The charges amounted to 3,959,366 SEK and 15,516,051 SEK. The Billerud companies appealed the decision of the National Environmental Protection Agency to the Land and Environmental Court in Nacka that ruled against the appeals on 22 September 2009. The ruling of the Land and Environmental Court was appealed by the Billerud companies to the Svea Court of Appeal, the Land and Environmental Court of Appeal that affirmed the judgment of the Land and Environmental Court in a ruling on 14 September 2010. The judgment of the Land and Environmental Court of Appeal was not be appealed. The Billerud companies petitioned that the Supreme Court should grant a new trial and demand a reopening of the case in the Land and Environmental Court of Appeal. If this was not possible, the companies petitioned that the Supreme Court should set aside the judgment of Svea Court of Appeal on the grounds of grave procedural errors and decide that a the case should be tried again by the Land and Environmental Court of Appeal. Billerud argued that the companies’ failure to timely surrender allowances equal to the emissions of carbon dioxide was not grounded in any willful act of deception. It was a mistake that happened due to a deficiency in the company's technical-administrative procedures on a lower level. This being the case, the companies argued that any real breach of law had not taken place, and as a result there was no legal basis to charge any fee. However, if there was a legal basis for the fee the companies argued that the penalty should be adjusted, in the first instance to zero, secondly to 20,000 SEK and ultimately to a reasonable amount. As a basis for the suggested adjustment the companies stated the following. A penalty of nearly 20 million SEK is not in reasonable proportion to the offense and as a consequence the penalty oversteps the principle of proportionality, which is a general principle both in Swedish and EU law. The charge of a penalty of such dimension can be equated with a criminal charge within the meaning of Article 6 of the European Convention on Human Rights (ECHR). An application of the penalty rules without the possibility of adjustment should be understood as a violation of the ECHR. The Supreme Court asked the EU Court of Justice for an advance ruling in relation to two interrelated questions brought up in the case. Question 1. Do Articles 16 (3) and 16 (4) of the Directive 2003/87/EC imply that an operator who does not surrender sufficient allowances by 30 April of each year should be held liable for the payment of an excess emissions penalty an operator who has not submitted sufficient allowances April 30 to pay a penalty, regardless of the cause of their failure to surrender? Question 2. If the answer to question 1 is yes, do Articles 16 (3) and 16 (4) of the Directive 2003/87/EC imply that the penalty should or could be waived or adjusted? According to the ruling of the European Court of Justice, Articles 16 (3) and 16 (4) of the Directive 2003/87/EC interpreted as an operator, which has not submitted a sufficient number of allowances by 30 April must pay the fee, even if the operator in question then held a sufficient number of allowances. However, a force majeure situation in which the allowances could not be surrendered could be applicable even if the Directive itself does not contain any such provision. By necessity, such a situation must be externally caused and of such dimensions that it is objectively impossible to fulfill the obligation to surrender the allowances. According to the European Court of Justice it falls on the Supreme Court to examine if the Billerud companies failed to surrender their allowances because they were the victims of such abnormal and unforeseeable circumstances that they could not control, or because they committed an internal error. Furthermore the EU Court of Justice pronounced that Articles 16 (3) and 16 (4) of the Directive 2003/87/EC shall be interpreted to mean that the penalty amount cannot be adjusted by national courts by virtue of the principle of proportionality. According to the EU Court of Justice, the fact that there is no possibility for a national court to adjust the amount of the penalty, should not be considered contrary to the principle of proportionality. After the judgment of the Court of Justice, the Billerud companies argued that EU law, as it has been interpreted in the ruling by the EU Court of Justice, is contrary to the ECHR. According to the Billerud companies, the Supreme Court should therefore examine the penalty’s compatibility with the ECHR and reject the Swedish regulation insofar as it does not permit adjustment of the amount of the penalty.