Darment v Commission (Environment - Fluorinated greenhouse gases - Judgment) [2022] EUECJ T-92/21 (08 June 2022)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

(Environment – Regulation (EU) No 517/2014 – Fluorinated greenhouse gases – Electronic registry for quotas for placing hydrofluorocarbons on the market – Decision to register – Authorisation to use a quota – Compliance with a judgment of the General Court – Principle of sound administration)

Darment Oy, established in Helsinki (Finland), represented by C. Ginter, lawyer,

European Commission, represented by E. Sanfrutos Cano, K. Talabér-Ritz and B. De Meester, acting as Agents,

composed of H. Kanninen, President, M. Jaeger (Rapporteur) and O. Porchia, Judges,

having regard to the order of 26 May 2021, Darment v Commission (T‑92/21 R, not published, EU:T:2021:293),

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

1 By its application under Article 263 TFEU, the applicant, Darment Oy, seeks the annulment of the European Commission’s decision of 15 December 2020 to enter its quota for the year 2021 and for the years 2019 and 2020 in the electronic registry for quotas for placing hydrofluorocarbons (HFCs) on the market (‘the HFC registry’) (‘the contested decision’).

2 HFCs are a class of fluorinated greenhouse gases used, in particular, in refrigeration and air conditioning systems, aerosols and the manufacture of insulating foams.

3 In the context of tackling greenhouse gas emissions, the European Parliament and the Council of the European Union adopted Regulation (EU) No 517/2014 of 16 April 2014 on fluorinated greenhouse gases and repealing Regulation (EC) No 842/2006 (OJ 2014 L 150, p. 195).

4 The gradual reduction of the quantities of HFCs that can be placed on the EU market was considered to be the most effective and cost-effective way to reduce emissions of those substances in the long term.

5 In order to implement that phase-down, Regulation No 517/2014 provides that the Commission is to, inter alia, determine each year a maximum quantity of HFCs that may be placed on the EU market and the quotas of HFCs that producers or importers are authorised to place on the market.

6 It should be noted that Regulation No 517/2014 applies both to the placing on the market of bulk HFCs and to the placing on the market of equipment pre-charged with HFCs, in respect of which Article 14(1) of that regulation specifies that they shall only be placed on the market if the HFCs pre-charged in them are accounted for within the quota system.

7 Within the context of that allocation of quotas by the Commission, Regulation No 517/2014 provides for the possibility of making a quota allocated to one importer or producer available to another importer or producer.

8 In that regard, Article 18 of Regulation No 517/2014 distinguishes between, on the one hand, the transfer of quota, governed by paragraph 1 thereof and applying to the placing on the market of bulk HFCs, and, on the other hand, the authorisation to use a quota, governed by paragraph 2 thereof and applying to the placing on the market of equipment pre-charged with HFCs referred to in Article 14 of that regulation.

9 Under Article 18(1) of Regulation No 517/2014, a producer or importer for whom a reference value has been determined pursuant to Article 16(1) or (3) of that regulation and to whom a quota has been allocated in accordance with Article 16(5) of that regulation may transfer all or part of that quota to another EU producer or importer.

10 Furthermore, under Article 18(2) of Regulation No 517/2014, a producer or importer to whom a quota has been allocated under Article 16(1) and (3) of that regulation or to whom a quota has been transferred under Article 18(1) of that regulation may authorise another undertaking to use its quota for the purposes of Article 14 of that regulation. It follows from the third subparagraph of Article 18(2) of Regulation No 517/2014 that the corresponding quantities of HFCs are deemed to be placed on the market on the date on which the authorisation is granted by the producer or importer.

11 Under Article 19(1) of Regulation No 517/2014, undertakings to which quotas have been allocated must report to the Commission data on the quantities of HFCs produced in or imported into the European Union. In addition, under Article 19(6) of that regulation, each undertaking which, pursuant to paragraph 1 thereof, has reported the placing on the market of 10 000 tonnes of CO2 equivalent or more of HFCs during the preceding calendar year is to ensure that the accuracy of that information is verified by an independent verifier.

12 Under Article 25(2) of Regulation No 517/2014, undertakings that have exceeded the quota for the placing on the market of HFCs allocated to them in accordance with Article 16(5) or transferred in accordance with Article 18 of that regulation shall only be allocated a reduced quota for the allocation period subsequent to the detection of the excess, with the reduction corresponding to 200% of the amount by which the quota was exceeded.

13 It is in that context that the Commission established, in accordance with Article 17 of Regulation No 517/2014, the HFC registry, which it operates. Producers and importers which are allocated a quota for the placing on the market of HFCs are to register with that registry.

14 The applicant is a Finnish company active in the HFC sector. On 4 June 2015, it registered itself with the HFC registry as an importer of equipment pre-charged with HFCs and as a company placing bulk HFCs on the market.

15 Pursuant to Article 16(5) of Regulation No 517/2014, the Commission allocated a quota to the applicant for the placing on the market of HFCs for the years 2016 to 2018. The quota available to the applicant for the year 2017 amounted to 34 060 tonnes of CO2 equivalent.

16 On 10 August 2017, the Estonian companies Arctica Ref OÜ and Arctica Solutions OÜ, on the basis of Article 18(2) of Regulation No 517/2014, authorised the applicant to use their quota, of 14 929 and 762 tonnes of CO2 equivalent respectively. Those two authorisations to use quota were entered in the HFC registry.

17 On 28 March 2018, a representative of Arctica Ref and Arctica Solutions sent an email to the Commission in which that representative referred to the fact that those two companies had intended to transfer quotas for the placing on the market of bulk HFCs to the applicant in 2017, but that, due to an ‘issue’, they had allowed the applicant to use their quota for the placing on the market of equipment pre-charged with HFCs. In that email, the representative of those two companies asked the Commission whether that issue could be solved by converting the authorisations granted to the applicant to use quotas for the placing on the market of equipment pre-charged with HFCs into transfers of quotas for the placing on the market of bulk HFCs.

18 In an email of the same day, the Commission replied to the representative of Arctica Ref and Arctica Solutions, noting, inter alia, the difference between the transfer of quota and the authorisation to use a quota and indicating that it would examine ‘in depth’ the reports relating to the placing on the market of HFCs in 2017.

19 By email of the same day, the applicant explained that it had accepted two authorisations to use the quotas of Arctica Ref and Arctica Solutions in 2017. However, it had become clear that it could not make use of those quotas, since they did not allow the placing on the market of bulk HFCs, but only the placing on the market of equipment pre-charged with HFCs. After indicating that it did not import such equipment, it asked the Commission to take its explanations into account in the verification process of the report.

20 By email of 10 April 2018, the Commission replied to the applicant that it would examine that issue further during the verification period.

21 On 19 June 2018, the applicant submitted its verification report for the year 2017, which indicated that it had, during that year, placed on the market 49 745 tonnes of CO2 equivalent of bulk HFCs.

22 By letter of 16 October 2018, the Commission informed the applicant that it had exceeded the quota allocated to it for the placing on the market of HFCs in 2017 and that, in accordance with Article 25(2) of Regulation No 517/2014, it would reduce, for the following quota allocation period, by 31 370 tonnes of CO2 equivalent the total amount of quotas to be allocated to it, which, in accordance with Article 19 of Regulation No 517/2014, is a reduction of 200% of the amount by which the quota had been exceeded pursuant to the report submitted to the Commission (‘the decision of 16 October 2018’).

23 By judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), the Court annulled the decision of 16 October 2018 on the ground that the Commission could not, without disregarding Article 25(2) of Regulation No 517/2014, interpreted in the light of the principle of sound administration, impose a penalty on the applicant without carefully and impartially examining all of the information brought to its knowledge, which it had not done.

24 By letter of 22 July 2020, written in English (‘the letter of 22 July 2020’), the Commission informed the applicant that, following the annulment of the decision of 16 October 2018, it was considering adopting one or more new decisions concerning it relating to penalties or the allocation of quotas.

25 In the letter of 22 July 2020, the Commission indicated to the applicant that, on the basis of the information set out in the annex attached thereto, it considered that, in 2017, the applicant had exceeded its quota for the placing on the market of bulk HFCs. The Commission asked the applicant to confirm that the information in the annex was correct and to provide any additional information it considered relevant. The Commission stated that, in the absence of a reply from the applicant within the time limit laid down, it would consider the information contained in that annex to be complete. Finally, it asked the applicant to inform it whether it preferred to communicate in a language other than English.

26 In the annex to the letter of 22 July 2020, the Commission noted, inter alia, that on 28 March 2018 it had received, first, an email from Arctica Ref and Arctica Solutions informing it that, although the applicant had sought a quota transfer for the placing on the market of bulk HFCs, there had been an ‘issue’ in that the quotas transferred in 2017 had been for the placing on the market of equipment pre-charged with HFCs, and, secondly, an email from the applicant informing it of the same issue, even though it did not import equipment pre-charged with HFCs. The Commission further stated that, on 5 June 2018, the applicant, first, had once again accepted an authorisation to use, on the basis of Article 18(2) of Regulation No 517/2014, 275 tonnes of CO2 equivalent from Arctica Ref’s quota and, secondly, had repeatedly changed its user profile in the HFC registry, adding the status of importer of equipment pre-charged with HFCs and then deleting it, so that by 30 August 2018 its user profile showed it only as an importer of bulk HFCs.

27 By letter dated 14 August 2020 and drafted in English, the applicant submitted its comments on the letter of 22 July 2020, requesting the Commission to omit certain facts from the annex attached thereto, in particular the assertion that it had repeatedly registered itself in the HFC registry as an importer of equipment pre-charged with HFCs in order to benefit from an authorisation to use a quota or a quota transfer. It added that, at the time of its registration in the HFC registry in 2015, it had not understood that there could be legal consequences when a company registered both as an importer of bulk HFCs and as an importer of equipment pre-charged with HFCs and that, given the complexity of the HFC quota legislation, it could not be ruled out that errors had been made.

28 By letter of 14 October 2020 (‘the letter of 14 October 2020’), the Commission informed the applicant that it had taken account of the comments it had made in its letter of 14 August 2020 by not drawing any conclusions from its changes of user profile in the HFC registry.

‘The quota exceedance in 2017, detected in 2018, has the legal effect of reducing the quote allocated to [the applicant] by 31 370 tonnes of CO2 equivalent for the quota allocation period(s) as from 2019. In accordance with the second subparagraph of paragraph 2 of Article 25 of [Regulation No 517/2014], no quota may be allocated [to the applicant] for the 2019 and 2020 quota allocation periods (quota reduced by 4 353 and by 5 353 tonnes of CO2 equivalent for 2019 and 2020 respectively) and for the following quota allocation periods until the full amount of reduction has been deducted.’

30 The Commission concluded the letter of 14 October 2020 by indicating to the applicant that it hoped that ‘this clarifie[d] [its] request’.

31 On 20 November 2020, the applicant sent the Commission an email, drafted in English, in which it argued that, in its view, the conclusions contained in the letter of 14 October 2020 did not comply with the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218).

32 On 15 December 2020, the applicant was informed through the HFC registry that its quota for the placing on the market of bulk HFCs for the year 2021 had been reduced to zero.

33 By email of 17 December 2020, written in English, the applicant informed the Commission that it had been informed through the HFC registry that its quota was zero and asked whether there was an error and what action would be taken on its case.

34 By email of 12 January 2021, the Commission confirmed to the applicant that there was no error in the quotas allocated to it for the years 2019 to 2021 (‘the email of 12 January 2021’).

37 First of all, it should be noted that the Commission maintains that the action is inadmissible.

38 The Commission submits that it was the letter of 14 October 2020, duly notified to the applicant, which definitively fixed its position with regard to the reduction of the quota resulting from the penalty as from 2019, so that that letter must be regarded as constituting a decision within the meaning of Article 263 TFEU. The information entered in the HFC registry on 15 December 2020 only constitutes the implementation of that earlier decision. Therefore, the act which should have been challenged by the applicant is the letter of 14 October 2020, and not the information in the HFC registry.

40 It should be noted that the Courts of the Union are entitled to assess, in the light of the circumstances of each case, whether the proper administration of justice justifies dismissing an action on the merits without first ruling on its admissibility (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 52).

41 The Court considers that it is necessary to examine from the outset the merits of the applicant’s claim for annulment without first ruling on the plea of inadmissibility raised by the Commission.

42 In support of its application for annulment, the applicant raises two pleas in law, the first alleging infringement of Article 266 TFEU and the second alleging failure to state reasons for the contested decision and infringement of Article 25(2) of Regulation No 517/2014 and Article 41 of the Charter of Fundamental Rights of the European Union.

43 In support of its first plea in law, the applicant claims that the Commission failed to comply with the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), in breach of Article 266 TFEU.

44 In that regard, the applicant claims that, following the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), it was for the Commission to take the implementing measures necessary to restore the legal situation in which it found itself prior to the adoption of the decision of 16 October 2018.

45 Thus, according to the applicant, in order to properly implement the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), the Commission should, for example, have compensated the applicant for the quota it had lost as a result of the penalty imposed by increasing its quota for the following allocation period, or should have offered to compensate the applicant fairly for the loss it had suffered as a result of the illegal penalty.

46 That was not the case, since, in the letter of 14 October 2020, in the contested decision and in the email of 12 January 2021, the Commission indicated that it did not intend to comply with the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218).

47 The applicant concludes that the contested decision is vitiated by the same irregularities as those identified in the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218).

48 It should be noted that, according to settled case-law, in order to comply with an annulment judgment and give full effect to it, the institution concerned is required to comply not only with the operative part of that judgment but also with the grounds which led to it and which constitute the essential basis for it, in that they are indispensable for determining the exact meaning of what was held in the operative part. It is those grounds which, on the one hand, identify the exact provision considered to be unlawful and, on the other hand, show the specific reasons for the unlawfulness found in the operative part and which the institution concerned must take into consideration when replacing the annulled act (see judgment of 17 May 2017, PG v Frontex, T‑583/16, not published, EU:T:2017:344, paragraph 42 and the case-law cited).

49 Moreover, if a judgment has the effect of annulling an act retroactively, it must be held that it does not oblige the administration to adopt a new decision the substance of which is different from that relating to the annulled decision, provided that that new decision and the procedure by which it was adopted are not affected by the same defects as those which led to the annulment of the first decision or by new defects (see, to that effect, judgment of 26 February 2015, Sabbagh v Council, T‑652/11, not published, EU: T:2015:112, paragraph 57).

50 In that regard, it should be noted that, in the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), the Court referred to the steps, albeit necessary, which the Commission had failed to take when investigating the applicant’s application and to the erroneous assumptions on which it had based its decision of 16 October 2018.

51 Therefore, in the first place, having found, in paragraphs 8 to 10 of the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), that the legal regime for the acquisition of an authorisation to use a quota relating to the placing on the market of equipment pre-charged with HFCs differed substantially from that relating to a transfer of a quota for the placing on the market of bulk HFCs, the Court noted, in paragraphs 70 and 71 of that judgment, that the Commission had wrongly concluded that the applicant had acted in bad faith, even though, inter alia, the error had been spontaneously disclosed by the two undertakings initially holding the quotas. In the second place, the Court pointed out, in paragraphs 72 to 75 of that judgment, that the Commission had erroneously considered the data in the HFC registry to be correct, even though, in particular, it was alleged that there had been an error in the declarations of provision of the quotas to the applicant and that those quotas had not been used by the applicant. In the third place, in paragraphs 76 to 78 of the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), the Court held that the Commission could not consider the will of the parties to be irrelevant in determining whether an application for rectification should be granted. In the fourth place, in paragraphs 79 to 81 of that judgment, the Court held that the Commission could not validly rely on the impossibility of amending the data in so far as they related to an earlier year, even though the alleged error had been pointed out before the closure of the verification period. In the fifth place, in paragraphs 83 and 84 of that judgment, the Court held that the Commission was entitled to regulate the possibility of correcting data relating to certain formal or material requirements in the HFC registry, but that it could not argue that the applicant should have accompanied its request with supporting documents on the basis of requirements which had not previously been brought to its attention. In the sixth place, in paragraphs 85 and 86 of the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), the Court held that the Commission was wrong to rely on the principle of equal treatment when it had received only one application for amendment since the introduction of the HFC registry. In the seventh place and lastly, in paragraphs 87 to 90 of that judgment, the Court noted that the Commission had not demonstrated an intention to circumvent the applicable rules.

52 With specific regard to the Commission’s argument that it was impossible for it to make changes to information which had been recorded in the HFC registry, the Court pointed out, in paragraphs 67 and 68 of the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), first, that, while Regulation No 517/2014 did not expressly provide for the possibility of rectification of the information contained in the HFC registry, neither did it prohibit such rectification and, secondly, that, pursuant to Article 17(1) and (2) of that regulation, the Commission established the HFC registry and ensured its operation and could, by means of implementing acts, to the extent necessary, ensure the proper functioning of that registry.

53 The foregoing implies that, contrary to what the applicant suggests, the Court did not state in the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), that the Commission was required systematically to make corrections where it was alleged that errors in the entry in the HFC registry, such as those at issue in the present case, had been made, but only that it could not systematically refuse a request for correction of the information recorded in that registry.

54 In that regard, it must be pointed out that the consideration, set out in paragraph 89 of the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), according to which there was no need to examine whether Arctica Solutions could not, for legal reasons, transfer its quota to the applicant, was not made in order to draw the conclusion that, as regards the disputed entries, the Commission could never refuse to make the corrections requested, but solely in order to state that the Commission could not, on the basis of that information alone, consider that the applicant’s intention was to circumvent the mandatory rules laid down by Regulation No 517/2014.

55 It was in the light of those factors that the Court held, in paragraph 93 of the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), that the Commission had infringed Article 25(2) of Regulation No 517/2014, interpreted in the light of the principle of sound administration, by imposing a penalty on the applicant without carefully and impartially examining all of the matters that had come to its knowledge and, accordingly, annulled the decision of 16 October 2018.

56 As is apparent from paragraphs 50 to 55 above, in the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), the Court annulled the decision of 16 October 2018 without ruling on the content and meaning of the new decision which the Commission would have to adopt pursuant to that judgment.

57 It follows that the complaint, raised by the applicant, that the Commission wrongly failed, as a matter of principle, to adopt a new decision which did not penalise it for exceeding its quota in 2017 must be rejected.

58 The same applies to the applicant’s claim that, in the letter of 14 October 2020, in the contested decision and in the email of 12 January 2021, the Commission indicated that it had no intention of complying with the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218). Since there is no evidence in the file to confirm that, that claim cannot be sustained.

The second plea in law, alleging failure to state reasons for the contested decision and infringement of Article 25(2) of Regulation No 517/2014 and Article 41 of the Charter of Fundamental Rights

60 The second plea in law is divided into two parts. In the first part, the applicant claims that the Commission failed to state reasons for the contested decision. By the second part, it states that, by rejecting its application on grounds relating to the technical impossibility of amending the particulars in the HFC registry, the Commission failed to comply with the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218).

The first part of the second plea in law, alleging failure to state reasons for the contested decision

61 By the first part of the second plea in law, the applicant claims that the contested decision is devoid of any statement of reasons and that it only became aware of the statement of reasons when it read the statement of defence. It concludes therefrom that the contested decision should be annulled.

62 The applicant claims that it was only in the statement of defence that the Commission set out its reasons for considering that it had exceeded its quota for the placing on the market of bulk HFCs and the reasons why it was not allocated any quota for the years 2019 to 2021.

63 The applicant concludes that the Commission cannot give reasons for its decisions during the proceedings before the Court and retroactively.

65 It should be noted that, according to settled case-law, the statement of reasons must be appropriate to the nature of the act at issue and must show clearly and unequivocally the reasoning of the institution which is the author of the act, so as to enable the persons concerned to know the reasons for the measure taken and the competent court to exercise its review (see judgment of 16 June 2021, Krajowa Izba Gospodarcza Chłodnictwa i Klimatyzacji v Commission, T‑126/19, EU:T:2021:360, paragraph 148 and the case-law cited).

66 Similarly, the requirement to state reasons must be assessed in the light of the circumstances of the case. It is not required that the statement of reasons specify all the relevant matters of fact and law, since the question whether the statement of reasons for an act satisfies the requirements of Article 296 TFEU must be assessed in the light not only of the wording of that act, but also of its context and of all the legal rules governing the matter concerned (see judgment of 16 June 2021, Krajowa Izba Gospodarcza Chłodnictwa i Klimatyzacji v Commission, T‑126/19, EU: T:2021:360, paragraph 149 and the case-law cited).

67 In the present case, in order to assess the merits of the argument alleging a failure to state reasons for the contested decision, it is necessary to place the entry in the HFC registry of the quota allocated to the applicant in its factual context. Thus, it should be noted that the reasoning which led the Commission to take the contested decision already appeared in the letter of 22 July 2020 and was subsequently developed in the letter of 14 October 2020.

68 In that regard, it should be pointed out that it is clear from the letter of 22 July 2020 that the Commission intended to base its decision on the information contained in the annex attached thereto and that it considered, in the light of that information, that the applicant had exceeded its quota in 2017. A reading of that letter and the annex thereto also shows that the Commission had not taken into account the argument based on the ‘issue’ pointed out on 28 March 2018 by Arctica Ref and Arctica Solutions and by the applicant.

69 Furthermore, in the letter of 14 October 2020, which followed the applicant’s comments of 14 August 2020 on the letter of 22 July 2020, the Commission explicitly developed three reasons why it considered that the applicant’s request should not be granted. Firstly, according to the Commission, the distinction between the transfer of a quota and the authorisation to use a quota and the legal regimes relating to those two operations were clearly apparent from the provisions of Article 18(1) and (2) of Regulation No 517/2014. Secondly, the Commission argued that, in the absence of a legal basis for amending the information entered in the HFC registry by undertakings, it was prohibited from correcting the data in the HFC registry in order to transform an authorisation to use a quota into a transfer of a quota. Thirdly, the Commission stated that, pursuant to Article 25(2) of Regulation No 517/2014, and to the extent that the applicant had exceeded the quota allocated to it for the year 2017, the quotas that would be allocated to it for the following years should be reduced by 200% of the amount exceeding the quota, so that the applicant would be allocated quotas reduced to zero for the years 2019 and 2020 as well as for the years thereafter until the total amount of reduction had been deducted.

70 It follows that the Commission gave sufficient reasons for the contested decision and that the first part of the second plea in law cannot succeed.

The second part of the second plea in law, alleging infringement of Article 25(2) of Regulation No 517/2014 and Article 41 of the Charter of Fundamental Rights

71 By the second part of its second plea in law, the applicant claims, in the first place, that the content of the letter of 22 July 2020 led it to believe that the Commission would comply with the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), so that it was entitled to expect the Commission to rectify the data contained in the HFC registry.

72 The applicant adds that the Commission cannot claim that it has not proved the error it alleged, even though it was never asked to produce evidence of that error. The applicant claims that, in any event, the request in the letter of 22 July 2020 that it confirm the accuracy of the facts recorded by the Commission in the annex attached thereto and provide any additional information it considered relevant was formulated in a manner which was far too general to enable it to understand what the Commission expected of it.

73 The applicant concludes that the Commission took a new decision on the basis of an argument that had never been brought to its attention and that, in so doing, it infringed Article 41 of the Charter of Fundamental Rights as well as its right to be heard and its right to participate in an administrative procedure.

74 In the second place, the applicant claims that the main reason for the contested decision was that the Commission considered that it was not possible, from both a technical and a legal point of view, for it to make a correction to the HFC registry, even though the Court, in paragraphs 66 and 67 of its judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), had held the contrary.

75 The applicant points out that the overall quantity of HFCs authorised to be placed on the market was never exceeded, since the undertakings initially holding the quotas did not use them, so that it cannot be criticised for having infringed the objective of Regulation No 517/2014. In its view, to have disregarded that circumstance constitutes a manifest error of assessment.

76 Finally, the applicant submits that the HFC registry is not drafted in Finnish or Estonian and that the error made by the undertakings originally holding the quotas is due to the fact that the Estonian version of Regulation No 517/2014 does not clearly distinguish between the transfer of a quota and the authorisation to use a quota. That error is all the more excusable as the registration of the transaction was done through the HFC registry without the latter reporting any errors.

77 The applicant concludes that, since the Commission has not demonstrated the reasons why the requested rectification could not be made, its application for annulment must be granted.

78 As regards, first of all, the procedure which led to the adoption of the contested decision, it should be noted that, following the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), the Commission, as is apparent from the letter of 22 July 2020 and the annex thereto, re-investigated the applicant’s file, while at the same time requesting it to indicate whether it preferred a language other than English to be used in the investigation of its file.

79 The letter of 22 July 2020 made it clear to the applicant that, on the basis of the facts set out in the annex thereto, the Commission considered that it had exceeded its quota for the year 2017.

80 Furthermore, in the letter of 22 July 2020, the Commission expressly invited the applicant to submit all its observations and to communicate to it any additional information which it considered useful for the investigation of its file and the defence of its rights.

81 It follows from paragraphs 78 to 80 above that, following the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), contrary to the applicant’s assertion, the Commission did not give it the impression that, on the occasion of the fresh investigation of its file, it was going to grant its request for rectification of the HFC registry. On the contrary, the Commission indicated to the applicant that, at that stage of the investigation of the procedure, it considered that there were no grounds for granting its request, leaving it to the applicant to contest that decision by asserting its rights and by communicating any information which it considered useful.

82 With regard, next, to the ‘issue’ described in the annex attached to the letter of 22 July 2020 encountered by the undertakings originally holding the quotas and by the applicant, it should be noted that, in the facts set out in that annex, the Commission referred to the two emails which it had received on 28 March 2018 from Arctica Ref and Arctica Solutions and from the applicant, which referred to alleged ‘issue’ which had resulted in the applicant, instead of receiving a transfer of quotas for the placing on the market of bulk HFCs, acquiring authorisation to use quotas for the placing on the market of equipment pre-charged with HFCs.

83 The mere mention of the ‘issue’ referred to in the two emails of 28 March 2018 was not, in itself, sufficient to establish the existence of the alleged error. The information derived from those emails was not sufficiently detailed and substantiated to determine with certainty the circumstances in which the problematic entries in the HFC registry had occurred, so that the alleged error could not be considered to be material.

84 In that regard, it is true that, in the letter of 22 July 2020, the Commission explicitly invited the applicant to provide any additional information which it considered useful and relevant, without, however, expressly inviting it to provide evidence of the existence of an error in relation to the transactions which had led to its obtaining authorisation to use quotas for the placing on the market of equipment pre-charged with HFCs.

85 The fact remains that, as is apparent from paragraphs 76 to 78 of the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), the Court held that the will of the parties constituted an element to be taken into account in the context of an application for rectification of data entered in the HFC registry.

86 In such a context, and in view of the invitation made to the applicant by the Commission in its letter of 22 July 2020 that it should communicate to it any additional information which might be useful to support its claim, it was for the applicant, which was just as concerned as the Commission by the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), and by the administrative enforcement procedure which followed it, to assert its rights effectively.

87 It was for the applicant, in the first place, to clearly state that one or more errors had been made in 2017 in relation to the transactions which had led to its being granted authorisation to use quotas for the placing on the market of equipment pre-charged with HFCs and, in the second place, to identify precisely the circumstances and nature of the alleged error and to substantiate it, including by providing evidence, such as emails or letters, or even certificates or agreements, relating to the circumstances surrounding those transactions.

88 In its letter of 14 August 2020, the applicant confined itself to maintaining that it had been unaware of the difference in the legal regime applicable to importers of bulk HFCs and importers of equipment pre-charged with HFCs and to asserting that the changes in the user profile which it had made in the HFC registry were unrelated to a desire to circumvent the rules arising from Regulation No 517/2014. The applicant, by contrast, did not refer to any error made, nor did it provide any details or supporting evidence capable of establishing the reality, substance and extent of the alleged error(s) enabling the Commission to understand precisely and specifically the circumstances in which those errors occurred.

89 Therefore, first, the Commission had explicitly invited the applicant to produce any additional crucial information and had therefore given it full latitude to assert its rights in the enforcement proceedings following the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218). Secondly, following that judgment, the applicant could no longer be unaware that the will of undertakings, normally evidenced by entries in the HFC registry, was a relevant factor to be taken into account in the context of an application for rectification of an error which, as in the present case, related to the subject matter of the transaction which led to the acquisition of quotas. That means that the applicant cannot rely on paragraphs 82 to 84 of the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), in order to impute to the Commission negligence committed in the investigation of its file following that judgment. It was for the applicant to bring the crucial information to the attention of the Commission, which had expressly invited it to do so, so that the argument that the Commission had infringed Article 41 of the Charter of Fundamental Rights must be rejected.

90 As regards the merits of the contested decision, it must be observed that, if a decision is validly based on one or more grounds, pleas concerning other grounds of that decision are inoperative since, assuming that they are well founded, they would not be capable of leading to the annulment of that decision (see judgment of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraph 22 (not published) and the case-law cited).

91 In the present case, having regard to the three grounds on which the contested decision is based, it is true that the Commission could not validly base its refusal to correct the applicant’s data in the HFC registry on the fact that there was no legal basis authorising it to convert an authorisation to use a quota into a transfer of a quota, even though, in paragraphs 66 to 69 of the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), the Court had noted, inter alia, that there was no provision in Regulation No 517/2014 prohibiting rectifications being made in that registry.

92 However, in the absence of the applicant having, in the course of the investigation of its file following the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), provided sufficient evidence to determine the circumstances and the materiality of the error which it alleged, the Commission could, after noting that the authorisation to use a quota and the transfer of a quota were subject to separate legal regimes, consider that the applicant had exceeded the quota for the placing on the market of bulk HFCs which had been allocated to it for the year 2017 and draw the consequences thereof by applying Article 25(2) of Regulation No 517/2014.

93 Therefore, in so far as the first and third grounds on which the contested decision was based were in themselves sufficient to justify the rejection of the applicant’s application, it must be held that it was with sufficient reasoning and without having infringed either Article 25(2) of Regulation No 517/2014 or Article 41 of the Charter of Fundamental Rights that the Commission, first, rejected the request for correction of the entries in the HFC registry concerning the applicant and, secondly, refused to allocate to the applicant a quota for the placing on the market of bulk HFCs for the years 2019 to 2021.

94 Such a conclusion cannot be called into question by the applicant’s allegations that, inter alia, the errors committed were due to the complexity of the EU legislation governing quotas for the placing on the market of HFCs, to difficulties in translating Regulation No 517/2014 into Estonian and to the fact that the electronic portal containing the HFC registry was drafted in English.

95 Apart from the fact that the complexity of legislation cannot constitute an excuse for failing to apply it, it is also common ground that the assertions relating to the link between the existence of the alleged error and the drafting of the electronic portal in English and to alleged difficulties in translating Regulation No 517/2014 remain unsubstantiated and are not capable of calling into question the conclusion reached in paragraph 89 above. In that regard, it should be pointed out that, despite the Commission’s express request in the letter of 22 July 2020 inviting the applicant to indicate whether it preferred to communicate in a language other than English, the applicant drafted its letter of 14 August 2020 in English.

96 As for the argument that there was a manifest error in the assessment of the facts, it is sufficient to note that, for the reasons given in particular in paragraphs 86 to 89 above, the assessment of the general scheme of Regulation No 517/2014 cannot exempt an applicant seeking the correction of an error which occurred in the acquisition of a quota from providing sufficiently detailed and precise evidence of the existence and substance of that error in order to enable the Commission to exercise control over its allegations and the justification for the request for correction.

97 Therefore, since the pleas in law alleging infringement of Article 266 TFEU, Article 41 of the Charter of Fundamental Rights and Article 25(2) of Regulation No 517/2014 must be rejected, the action must be dismissed in its entirety.

98 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.

99 Since the applicant has been unsuccessful, it must be ordered to pay the costs, including those incurred in the proceedings for interim measures, in accordance with the form of order sought by the Commission.

2. Orders Darment Oy to pay the costs, including thoserelating to the proceedings for interim measures.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	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) >> Darment v Commission (Environment - Fluorinated greenhouse gases - Judgment) [2022] EUECJ T-92/21 (08 June 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/T9221.html Cite as: ECLI:EU:T:2022:341, EU:T:2022:341, [2022] EUECJ T-92/21

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