24 June 2015 (*1)

‛Environment — Protection of the ozone layer — Fluorinated greenhouse gases — Regulation (EU) No 517/2014 — Placing of hydrofluorocarbons on the market — Determination of a reference value — Allocation of quotas — Duty to state reasons — Method of calculation’

In Case T‑847/14,

applicant,

European Commission, represented by C. Hermes and K. Mifsud-Bonnici, acting as Agents,

defendant,

APPLICATION for annulment of Commission Implementing Decision 2014/774/EU of 31 October 2014 determining, pursuant to Regulation (EU) No 517/2014 of the European Parliament and of the Council on fluorinated greenhouse gases, reference values for the period 1 January 2015 to 31 December 2017 for each producer or importer who has reported placing on the market hydrofluorocarbons under Regulation (EC) No 842/2006 of the European Parliament and of the Council (OJ 2014 L 318, p. 28), in so far as it concerns the applicant,

THE GENERAL COURT (Third Chamber),

composed of S. Papasavvas (Rapporteur), President, N.J. Forwood, and E. Bieliūnas, Judges,

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 8 May 2015,

gives the following

Background to the dispute

1Hydrofluorocarbons (HFCs) are a category of fluorinated greenhouse gas used, in particular, in refrigeration and air-conditioning systems, aerosols and the manufacture of insulating foam.

2The applicant, GHC Gerling, Holz & Co. Handels GmbH, is a German undertaking operating in the area of speciality gases. It does not produce HFCs but imports them from non-member countries and Member States and then markets them, primarily to undertakings established within the European Union.

3In the fight against 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).

4Gradually reducing the quantities of HFCs that can be placed on the market has been identified as the most effective and cost-efficient way of reducing emissions of those substances in the long term.

5In order to implement that gradual reduction, Regulation No 517/2014 provides that the European Commission shall determine a maximum quantity of HFCs that may be placed on the Union market every year, a reference value for each producer or importer, based on the annual average of the quantities of HFCs the producer or importer reported to have placed on the market from 2009 to 2012 (‘the reference value’), and a HFC quota (‘the quota’) that he will be authorised to place on the market each year, with effect from 2015.

6On 31 October 2014, the Commission adopted Implementing Decision 2014/774/EU determining, pursuant to Regulation No 517/2014, reference values for the period 1 January 2015 to 31 December 2017 for each producer or importer who has reported placing on the market HFCs under Regulation (EC) No 842/2006 of the European Parliament and of the Council (OJ 2014 L 318, p. 28, ‘the contested decision’).

7Article 1 of the contested decision reads:

‘Article 1 Determination of reference values For the purpose of the quota allocation, the reference values for each importer and producer shall be those set out in the Annex to this Decision, calculated on the basis of data reported in compliance with Regulation (EC) No 842/2006 by subtracting from the annual average of the quantities of the [HFCs] (bulk gases) placed on the Union market for the period of 2009 to 2012 the total quantities of [HFCs] (bulk gases) covered by the exemptions set out in Article 15(2) points (a) to (e) of Regulation (EU) No 517/2014 for that period of time, where data is available. The annual average of bulk gases placed on the Union market referred to in this Article has been calculated by subtracting from the total annual quantities of [HFCs] (bulk gases) produced and imported in the Union market the total quantities of [HFCs] (bulk gases) exported from the Union market, taking into account the year-end balance of gases in stock.’

8The Annex to the contested decision awards to the applicant a reference value of [confidential] (*1) tonnes carbon dioxide (CO₂) equivalent and allocates to it a quota of [confidential] tonnes carbon dioxide (CO₂) equivalent for the year 2015.

9The Annex to the contested decision also states the formula used to determine the reference value, that formula including a variable linked to the year-end balance of HFCs in stock.

10By email of 5 November 2014, the applicant asked the Commission to explain why the year-end balance of HFCs in stock had been taken into account in determining the reference value.

11The Commission replied by email of the same date, stating that the reference value had been determined on the basis of the data reported in compliance with Regulation (EC) No 842/2006 of the European Parliament and of the Council of 17 May 2006 on certain fluorinated greenhouse gases (OJ 2006 L 161, p. 1).

12The applicant responded, in another email of the same date, that it still did not understand the reason why the year-end balance of HFCs in stock had been taken into account in calculating the reference value and stating that, in its opinion, that year-end balance falsified the calculation of the reference value to its disadvantage.

13By email of 6 November 2014, the Commission replied to the applicant recalling that it had to calculate quantities of HFCs placed on the market on the basis of the available data, which did not distinguish between different types of stocks and their origins and that, therefore, it used a formula which dealt with stocks regardless of their actual status. The Commission stated that the formula had been communicated to the undertakings concerned and that no objection to it had been received, either from the applicant or from other undertakings.

14On 12 December 2014, the applicant’s legal representative asked the Commission to amend the contested decision.

15On 16 December 2014, the Commission informed the applicant’s legal representative that it would provide a response as soon as possible, but that first it needed to seek legal advice.

Procedure and forms of order sought

16By application lodged at the Court Registry on 30 December 2014, the applicant brought this action.

17By separate document lodged on the same day, the applicant applied to have that action adjudicated on under an expedited procedure in accordance with Article 76a of the Rules of Procedure of the General Court.

18By decision of 23 January 2015, the General Court (Third Chamber) granted that application.

19On hearing the report of the Judge-Rapporteur, the General Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of its Rules of Procedure, put questions in writing to the parties. The parties replied to those questions within the periods prescribed.

20By document lodged at the Court Registry on 21 April 2015, the applicant, as a measure of organisation of procedure, applied to the Court to order the production of documents. The Commission lodged its observations on that request for a measure of organisation of procedure within the periods prescribed.

21The parties presented oral argument and replied to the Court’s oral questions at the hearing on 8 May 2015.

22Following the hearing, the applicant produced a document, on which the Commission presented its observations within the period prescribed.

23The oral procedure was closed on 12 May 2015.

24The applicant claims that the Court should:

—annul the contested decision and the quota allocated to it for the year 2015 for placing HFCs on the market, in that the reference value fixed and the allocated quota are too low;

—order the Commission to pay the costs.

25The Commission contends that the Court should:

—dismiss the action;

—order the applicant to pay the costs.

Law

26In support of its action, the applicant relies on three pleas: the first alleging an infringement of Regulation No 517/2014; the second alleging an infringement of the principle of equal treatment; and the third alleging an infringement of the duty to state reasons.

27It is appropriate to begin by examining the third plea.

Third plea, alleging an infringement of the duty to state reasons

28The applicant claims that the contested decision does not comply with the requirements of Article 296 TFEU. Firstly, according to the applicant, no reasons are given in the contested decision to justify taking into account the year-end balance of stock. Secondly, it is not possible to understand how the reference value awarded to the applicant was calculated, even when year-end balance of stock is taken into account, as the calculation is not properly explained. Moreover, the calculations shown in the Annex to the application lead to a different reference value from that determined by the Commission.

29The Commission submits that the contested decision does comply with the requirements of Article 296 TFEU. Firstly, it denies that the contested decision gives no indication of the reasons why the year-end balance of stock was taken into account. The Commission explains that it was because of Article 16(1) of Regulation No 517/2014 and that the context was given in Recital 5 of the preamble to the contested decision. Secondly, the Commission refutes the argument that the calculation of the reference value cannot be understood. The second paragraph of Article 1 of the contested decision explains the method used, and the reference value was correctly determined. The calculations provided in the Annex to the application, on the other hand, were incorrect.

30It should be recalled that, according to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent EU court to exercise its power of review (see judgment of 24 November 2005 in Italy v Commission, C‑138/03, C‑324/03 and C‑431/03, ECR, EU:C:2005:714, paragraph 54 and the case-law cited).

31That requirement must be appraised by reference to the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU 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 (see judgment in Italy v Commission, cited in paragraph 30 above, EU:C:2005:714, paragraph 55 and the case-law cited).

32Also according to case-law, an implementing act satisfies the duty to state reasons where it contains an express reference to the provisions of the regulation on which it is based, so that the criteria leading to its adoption can be understood (see judgment of 20 September 2012 in Poland v Commission, T‑333/09, EU:T:2012:449, paragraph 88 and the case-law cited).

33In this instance, the first point to be noted is that the contested decision is an implementing act based on Regulation No 517/2014 and which, in the second cited legal base, refers to Article 16(1) of that regulation, which provides that, by 31 October 2014, the Commission shall, by means of implementing acts, determine for each producer or importer, having reported data under Article 6 of Regulation No 842/2006, a reference value based on the annual average of the quantities of HFCs the producer or importer reported to have placed on the market from 2009 to 2012 (‘the reference period’).

34Secondly, it must be noted that Recital 4 of the contested decision states that the reference values are calculated on the basis of the annual average of the quantities of HFCs the producers or importers have reported to have placed on the market during the reference period, while excluding quantities of HFCs for the usage referred to in Article 15(2) of Regulation No 517/2014 during the same period, on the basis of available data.

The first paragraph of Article 1 of the contested decision also states that, for the purpose of the quota allocation, the reference values for each importer and producer shall be those set out in the Annex to that decision, calculated on the basis of data reported in compliance with Regulation No 842/2006 by subtracting from the annual average of the quantities of the HFCs (bulk gases) placed on the Union market for the reference period the total quantities of HFCs (bulk gases) covered by the exemptions set out in Article 15(2) points (a) to (e) of Regulation No 517/2014 for that period of time, where data is available.

The second paragraph of Article 1 of the contested decision goes on to state that the annual average of bulk gases placed on the Union market was calculated by subtracting from the total annual quantities of HFCs (bulk gases) produced and imported in the Union market the total quantities of HFCs (bulk gases) exported from the Union market, taking into account the year-end balance of gases in stock.

The Annex to the contested decision states that the reference value (RV) was calculated according to the following formula: RV = average [2009-2012] (POM — EX), the balance (POM — EX) being determined annually and then averaged over the four-year period in question. The value POM represents bulk gases placed on the market (calculated according to the following formula: Ρ + I - E + Δs, where P corresponds to production, I to imports, E to direct exports and Δs to the difference in year-end stocks, i.e. stocks on 1 January 20XX — stocks on 31 December 20XX), and EX is bulk gases covered by exemptions according to Article 15(2), points (a) to (e) of Regulation No 517/2014, based on available data.

It must, firstly, be concluded in the light of the above that the contested decision is supported by reasons to the requisite legal standard in terms of the definition of reference value and the methodology provided by the Commission for determining that value. These are very clearly and unambiguously set out in the contested decision. Therefore, it is incorrect of the applicant to claim that reasons were not provided for the calculation of the reference value awarded to it.

Secondly, with regard to taking the year-end balance in stock into account in the determination of the reference value, the clear conclusion from the contested decision is that the Commission calculated the yearly average of HFCs (bulk gases) placed on the Union market by subtracting from the total annual quantities of HFCs produced and imported in the Union market the total quantities of HFCs (bulk gases) exported from the Union market, taking into account the year-end balance of gases in stock. However, neither the contested decision, nor Regulation No 517/2014 to which the contested decision refers, sets out any reasons for taking this variable into account. In this regard, it cannot be claimed that the reference in Article 1 of the contested decision to the ‘data reported in compliance with Regulation No 842/2006’ constitutes a reason for taking into account the variable in question. Even though that reference indicates the origin of the data used for the purpose of calculating the reference value, it does not provide the specific reasons for introducing the year-end balance of stocks into that calculation. Nevertheless, since the definition of the reference value and the methodology provided by the Commission for determining the reference value are stated to the requisite legal standard in the contested decision, the Commission cannot be required to give the specific reasons why that methodology includes a particular variable, although that is subject to the EU courts’ power to review the merits of taking that variable into account in determining the reference value. In addition, the exchanges between the Commission and the applicant, following adoption of the contested decision but prior to the present action being brought, related specifically to that question, the Commission stating its position, in particular, on the question of taking the year-end balance of stock into account, thus enabling the applicant to understand the reasons why it had been taken into account and to contest the merits of that in its legal action, as can be seen from an examination of the first plea.

Lastly, turning to the argument that, in essence, even when the year-end balance of stock is taken into account, the calculation carried out according to the formula set out in the contested decision produces a different result, it must be held that that is not a matter of whether the contested decision is properly reasoned but rather a matter of substance, so that it must be rejected, in the context of this plea, as ineffective.

It follows from the above that the third plea must be rejected.

First plea, alleging an infringement of Regulation No 517/2014

The applicant maintains that, by wrongly taking into account the year-end balance of HFCs in stock for the purpose of calculating the reference value awarded to the applicant, when only the quantities of HFCs actually placed on the market should have been taken into account, in this case corresponding to the difference between the quantities of HFCs imported and those exported, the Commission infringed Regulation No 517/2014. The applicant bases its argument that there is nothing to justify taking the year-end balance into account both on the wording, and on a historic, systematic and teleological interpretation, of the regulation. According to the applicant, for importers and exporters who, like itself, are neither producers nor users, taking into account that year-end balance has no connection with the quantities actually placed on the market, as shown in the examples of situations it describes. In this instance, taking that balance into account reduces the reference value awarded to the applicant, which should be at least [confidential] tonnes CO₂ equivalent and not [confidential] tonnes CO₂ equivalent as found by the Commission.

The Commission maintains that the method of calculating the reference value set out and applied in the contested decision complies with Regulation No 517/2014. According to the Commission, that value must be based, firstly, on the quantities placed on the market during the reference period, in accordance with Article 2 point (10) of Regulation No 517/2014 and, secondly, on the quantities that the producer or importer declares he has placed on the market, under Article 6 of Regulation No 842/2006. Data reported in compliance with Regulation No 842/2006 do not reflect exactly the quantities placed on the market since the only data available is that relating to production, imports, exports and the balance of stock. In the circumstances, the legislature allowed the Commission an element of discretion when calculating the reference value by providing that this was to be based on the information reported. The method set out in the second paragraph of Article 1 of the contested decision complies with those requirements and with the wording, the context, the meaning and the purposes of Article 16(1) of Regulation No 517/2014. Finally, the Commission maintains that the situations described by the applicant are based on incorrect calculations.

In that regard, it must be noted that the objective of Regulation No 517/2014, as mentioned in its Recitals 13 and 14, is the gradual reduction of the quantities of HFCs that can be placed on the Union market, in order to reduce emissions of those substances in the long term.

Regulation No 517/2014 provides that the Commission shall allocate to each producer or importer a quota for placing HFCs on the market, having first determined a reference value.

Under Article 16(1) of Regulation No 517/2014, that reference value shall be based on the annual average of the quantities of HFCs the producer or importer, having reported data under Article 6 of Regulation No 842/2006, reported to have placed on the market during the reference period, with the exception of certain quantities of HFCs intended for a use referred to in Article 15(2) of Regulation No 517/2014.

Annex V to Regulation No 517/2014 confirms that the reference value is based on the quantities of HFCs that the producer or importer placed on the Union market during the reference period, excluding those quantities of HFCs intended for a use referred to in Article 15(2) of that regulation during the same period, on the basis of available data.

It follows that Regulation No 517/2014 provides that the reference value awarded to a producer or importer is linked, firstly, to the quantities of HFCs placed on the market during the reference period and, secondly, to those covered by the exemptions under Article 15(2) of that regulation.

Therefore, by providing in the first paragraph of Article 1 that the reference values for each importer and producer shall be calculated on the basis of data reported in compliance with Regulation No 842/2006 by subtracting from the annual average of the quantities of the HFCs placed on the Union market for the reference period the total quantities of HFCs covered by the exemptions set out in Article 15(2) points (a) to (e) of Regulation No 517/2014 for that same period, where data is available, the contested decision essentially repeats the same criteria as those laid down in Regulation No 517/2014 for the purposes of calculating the reference value.

In the present case, the applicant is disputing the fact that the Commission took into account the year-end balance of HFCs in stock, namely the value Δs in the formula set out in the Annex to the contested decision, when calculating the reference value awarded to it, more specifically, the quantities of HFCs placed by the applicant on the market during the reference period.

In that context, it should be noted that, as a result of the second paragraph of Article 1 of, and the Annex to, the contested decision, the quantities of HFCs that producers or importers placed on the market during the reference period are calculated by adding together the quantities produced, the quantities imported and the difference in year-end stocks and subtracting the quantities exported.

Firstly, as the applicant points out, nothing within Regulation No 517/2014 explicitly provides that the difference in year-end stocks is a factor that should be taken into account in determining the reference value.

Secondly, it is not established that the difference in year-end stocks is a relevant criterion for determining the quantities of HFCs ‘placed on the market’ for the purposes of Article 2 point (10) of Regulation No 517/2014, in particular in the case of undertakings such as the applicant which neither produce nor use HFCs and simply import them in order to re-sell them or export them outside the Union.

In this connection, it should firstly be noted that Article 2 point (10) of Regulation No 517/2014 defines ‘placing on the market’ as supplying or making available to another party in the Union for the first time, for payment or free of charge, or using for its own account in the case of a producer, and includes customs release for free circulation in the Union. Under Article 129 of Regulation (EC) No 450/2008 of the European Parliament and of the Council of 23 April 2008 laying down the Community Customs Code (Modernised Customs Code), release for free circulation shall imply the collection of any import duties due; the collection, as appropriate, of other charges, as provided for under relevant provisions in force relating to the collection of those charges; the application of commercial policy measures and prohibitions and restrictions insofar as they do not have to be applied at an earlier stage; and completion of the other formalities laid down in respect of the importation of the goods. It confers on non-Community goods the customs status of Community goods. In this regard, it should be noted that, in response to a question raised by the Court at the hearing, the parties were in agreement that the concept of release for free circulation referred to in Article 2 point (10) of Regulation No 517/2014 was identical to that referred to in Article 129 of Regulation No 450/2008. Accordingly, the quantities of HFCs imported by the applicant meeting the conditions laid down by Article 129 of Regulation No 450/2008 must be regarded as having been released for free circulation and, therefore, as having been ‘placed on the market’ pursuant to Article 2 point (10) of Regulation No 517/2014.

Secondly, it should be pointed out that Article 2 point (10) of Regulation No 517/2014 does not state, and it cannot be deduced from that article, that, in order to be regarded as ‘placed on the market’, the quantities of HFCs released for free circulation must also be actually sold, meaning that quantities released for free circulation but not yet sold would be excluded. Neither can such an interpretation of that article be drawn from any other provision of Regulation No 517/2014. Moreover, the Commission does not claim that to be the case.

Thirdly, it must be noted that, as submitted by the Commission, Regulation No 842/2006 and Regulation No 517/2014 do not define the concept of ‘placed on the market’ in the same way. Even though the definition is essentially identical, the two regulations nevertheless differ in that the former refers to the ‘import into the customs territory of the Community’ whereas the latter refers to the ‘customs release for free circulation in the Union’. Thus, while the entire quantity of HFCs imported is regarded as placed on the market under Regulation No 842/2006, only the quantity of HFCs imported and released for free circulation is so regarded under Regulation No 517/2014.

It must also be recognised that Annex V to Regulation No 517/2014, the object of which is to specify how the reference value is calculated, states that the calculation is based on the quantities of HFCs that the producers and importers have placed on the market in the Union during the reference or allocation period, ‘on the basis of available data’. A reading of the whole of Regulation No 517/2014 shows this to be the data reported on the basis of Article 6 of Regulation No 842/2006, in the form set out by Commission Regulation (EC) No 1493/2007 of 17 December 2007 establishing, pursuant to Regulation No 842/2006, the format for the report to be submitted by producers, importers and exporters of certain fluorinated greenhouse gases.

Since the quantities of HFCs imported and released for free circulation must, under Article 2 point (10) of Regulation No 517/2014, be regarded as having been placed on the market, they do not figure among that data, as only the quantities produced, imported, exported and in stock must be reported on that basis.

However, the fact that Annex V to Regulation No 517/2014 provides for the reference value to be calculated ‘on the basis of available data’, and that Article 16(1) of that regulation states that the reference value is to be ‘based on the annual average of the quantities of HFCs the producer or importer reported to have placed on the market’, cannot be taken to mean that calculation of the reference value must necessarily be based only on the data reported under Article 6 of Regulation No 842/2006.

Firstly, nothing in Regulation No 517/2014 explicitly states that the reference value must be calculated only on the basis of the data reported under Article 6 of Regulation No 842/2006 or, indeed, that all the data reported must necessarily be used for the purposes of that calculation.

Next, nothing in Regulation No 517/2014 provides that the Commission cannot, if necessary, request further information from the undertakings concerned. What is more, at the hearing, the Commission stated that Regulation No 517/2014 did not contain anything expressly prohibiting that. Likewise, even supposing, as the Commission claims, that the legislature dispensed with the possibility of collecting data ex post relating to the reference period, that does not mean that the Commission is prohibited from collecting such information, if it is necessary to determine the quantities of HFCs placed on the market. In addition, in view of the small number of undertakings affected, it is not certain that this would have entailed significant administrative costs, delayed the start of the procedure or led to a particular risk of manipulation, as the Commission suggests. In any event, it should be noted that, as appears from the Annex to an email of 19 May 2014, sent by the Commission in response to a written question from the Court, the Commission did invite the undertakings concerned to provide it with certain data in connection with determination of the reference value, in particular, the quantities of HFCs produced or imported for the purposes listed in Article 15(2) of Regulation No 517/2014, which had not been reported previously and which were therefore not available. The explanations given for this by the Commission at the hearing do not lead to the conclusion that it would have been impossible to also ask those undertakings to provide data on the quantities of HFCs imported and released for free circulation which, as in the case of the quantities of HFCs produced or imported for the purposes listed in Article 15(2) of Regulation No 517/2014, had not been reported under Regulation No 842/2006. That therefore confirms not only that it would have been neither prohibited nor impossible for the Commission to collect non-available data ex post if necessary, but also that that was what actually occurred. What is more, it must be observed that those undertakings cannot be criticised for not having reported data themselves, during the reference period, which had not been requested by the Commission on the basis of Regulation No 842/2006 and the relevance of which only became apparent at a later stage.

Finally, Regulation No 517/2014 must be interpreted to mean that the Commission must calculate the reference value on the basis of reported data (Article 16(1)) or available data (Annex V) only to the extent that the data is relevant for the purposes of determining that value. The objective of the regulation is to gradually reduce the quantities of HFCs ‘placed on the market’ of the Union. It would be contrary to that objective to base the calculation in question on data having no objective link with the quantities of HFCs ‘placed on the market’ of the Union during the reference period, as it is on those quantities that Regulation No 517/2014 requires the reference values and, ultimately, the quotas awarded for placing on the market, to be based.

The first conclusion to be drawn from this is that, in calculating the reference value, the use of data not relevant to determining the quantities of HFCs placed on the market purely because it is ‘available data’ would not be compliant with the objective of Regulation No 517/2014. The fact that quantities in stock were reported does not necessarily mean that they were taken into account if they were not relevant to determining the quantities of HFCs placed on the market. By the same token, the Commission’s argument that Recital 5 of the contested decision states that determination of the reference value is limited by the constraints of the reported data under Article 6 of Regulation No 842/2006 is not relevant. The second conclusion is that it is not possible to accept the argument that non-availability of data relevant to calculating the reference value leads to the reference value not corresponding to the quantities of HFCs placed on the market, as required by Article 16(1) and Annex V to Regulation No 517/2014. The Commission recognises that the legislature was aware that it was impossible to determine with precision the quantities placed on the market for the purposes of Regulation No 517/2014, on the basis of the data reported under Regulation No 842/2006. It was therefore down to the Commission to approach the undertakings concerned in order to obtain the missing relevant data.

Turning to the Commission’s claim that the legislature left it a margin of discretion when calculating the reference values, that would in any case not permit the Commission to adopt a calculation method leading to the reference values not being based on the quantities of HFCs placed on the market, pursuant to Regulation No 517/2014.

In any event, the Commission has failed to establish that, in a case like the present one, taking into account the year-end balance of stocks allows the quantities of HFCs placed on the market, for the purposes of Article 2 point (10) of Regulation No 517/2014 and on the basis of data collected under Article 6 of Regulation No 842/2006, to be determined more precisely than by not doing so.

The Commission has not put forward any information leading to the conclusion that, in the case of an undertaking which imports, but does not produce, HFCs, taking into account the year-end balance of stocks allows quantities placed on the market, as set out in Article 2 point (10) of Regulation No 517/2014, together with the quantities imported and exported, to be ascertained. There is no evidence to suggest that, in the case of HFC imports, the year-end balance of stocks has any connection with the quantities of HFCs released for free circulation and, therefore, placed on the market, for the purposes of Article 2 point (10) of that regulation. There are, therefore, no grounds to find that taking into account that balance of stocks contributes to a more precise determination of the quantities of HFCs placed on the market by an importer than not taking it into account.

This reasoning is not affected by the Commission’s argument that taking imports into account without any adjustment for the comparison in stocks would result in the entire quantity imported, and not just that part released for free circulation, being included; nor by the argument that it is necessary to take changes in stock into account in order to meet the objective of Regulation No 517/2014. It is, certainly, true that the quantities imported do not, of themselves, enable the quantities placed on the market by an importer to be ascertained, given that it is the quantities of imported HFCs that have been released for free circulation that can be regarded as placed on the market, for the purposes of Article 2 point (10) of Regulation No 517/2014. However, it remains the case that the Commission has not shown sufficiently in law that taking into account the year-end balance of stock would enable the quantity of HFCs placed on the market, as required by the objective of that regulation, by an undertaking that, like the applicant, merely imports and exports HFCs.

What is more, it is important to note that, in the present case, in response to a written question from the Court, the applicant confirmed that the entire quantity of HFCs imported during the reference period had been released for free circulation. At the hearing, the Commission stated that it did not dispute that. Therefore, the quantity of HFCs that the applicant, who, it is agreed, does not produce any such gases, placed on the market within the meaning of Article 2 point (10) of Regulation No 517/2014, corresponds exactly to the quantity of HFCs imported, and therefore released for free circulation, and the quantity of HFCs exported. In taking into account data linked to the year-end balance of stocks, the Commission determined a reference value that did not correspond exactly to the quantity placed on the market by the applicant.

It follows from the foregoing that, by taking into account the year-end balance of stocks for the purposes of calculating the reference value awarded to the applicant, the contested decision infringes Regulation No 517/2014 and the Commission is wrong to claim that the method it chose complies with the requirements of that regulation.

Therefore, the first plea must be upheld and the contested decision must be annulled to the extent that it concerns the applicant, without there being any need to examine the second plea or to grant the applicant’s request for measures of organisation of procedure.

Costs

Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

On those grounds,

hereby:

1.Annuls Commission Implementing Decision 2014/774/EU of 31 October 2014 determining, pursuant to Regulation (EU) No 517/2014 of the European Parliament and of the Council on fluorinated greenhouse gases, reference values for the period 1 January 2015 to 31 December 2017 for each producer or importer who has reported placing on the market hydrofluorocarbons under Regulation (EC) No 842/2006 of the European Parliament and of the Council, in so far as it concerns GHC Gerling, Holz & Co. Handels GmbH;

2.Orders the European Commission to pay the costs.

Papasavvas

Forwood

Bieliūnas

Delivered in open court in Luxembourg on 24 June 2015.

[Signatures]

(1) Language of the case: German.

(1) Confidential data removed.