This is important. The Commission has stepped forward to determine the absolute Community-wide quantity of carbon emission allowances for 2013. This means that the total aggregate number of emission allowances issued by all Member States in 2013 should not exceed this number – 1 926 876 368. The Commission has the obligation under Article 9 of Directive 2003/87/EC to publish the absolute Community-wide quantity of allowances for 2013 based on the total quantities of allowances in accordance with the Commission Decisions on the national allocation plans (NAPs) of the Member States for the period from 2008 to 2012.
Now, the problem is that not all NAPs have been approved. In a few cases the Commission has rejected the NAPs, but Member states have contested those decisions before the General Court. Two of the Commission decisions (of Estonia and Poland) have already been repealed by the General Court, and four more – for Latvia, Lithuania, Romania and Bulgaria, are pending at the General Court. Poland has submitted a new NAP that was approved by the Commission, but that leaves five NAPs still not approved.
In that respect the Commission says that changes to the National Allocation Plans as a result of legal proceedings, may be reflected in future adjustments to the Community-wide quantity of allowances for 2013. I am skeptical. I don’t see how this Commission decision can be valid given the absolute procedural requirement for valid and approved NAPs for determining the total quantity of emission allowances for 2013. In other words I have serious doubts about the legality of that Commission decision.