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BAT Conclusions annulled as a result of Poland’s action – but only formally

On 11 October 2017, Poland filed an action with the CJEU against an EC decision adopting the BAT Conclusions. In a judgment of 27 January 2021, case T-699/17, the General Court annulled the EC’s decision. Did this in fact affect the situation of large combustion plants (LCPs), which were required to comply with the conclusions by 17 August 2021?

On 31 July 2017, the EC issued Commission Implementing Decision (EU) 2017/1442 establishing best available techniques (BAT) conclusions. The conclusions were applicable to a large number of sectors, from animal breeding, waste incineration and the steel industry to large combustion plants. The conclusions were adopted following the work of a forum created by the EC in 2016, comprising representatives of member states of the sectors concerned and environmental protection NGOs.

The term large combustion plants refers primarily to technical devices in which fuel is oxidized to use the heat generated in this process, which have a nominal heating capacity of 50 MW or more regardless of the kind of fuel used – power stations, thermal energy plants, and combined heat and power plants. According to Directive 2010/75/EU of the European Parliament and of the Council on industrial emissions (IED), the conclusions should be the reference for setting permit conditions for LCPs. Under Polish environmental law, installations for which integrated permits are required must fulfil the BAT environmental protection requirements. In particular, they cannot cause emission limits to be exceeded.

On 11 October 2017, Poland filed an action seeking the annulment of the decision establishing the BAT conclusions, which was supported by Hungary and Bulgaria. Poland made five pleas in its arguments, the first of which, a formal argument, concerned  voting rules, stating that the decision should have been adopted according to the qualified majority rules under the Nice Treaty, and not under the Lisbon Treaty. In the other pleas, Poland questioned the emission levels set out in the conclusions, stating that they were imposed based on incorrect and unrepresentative information, and also questioned the exemptions granted to certain Island regions with regard to application of the conclusions to heavy fuel and/or diesel engines.

In a judgment of 27 January 2021, the General Court upheld the formal plea and annulled the contested decision, stating that the remaining pleas entered did not need to be examined.

The court found at the same time that the contested decision was a basis for setting permit conditions for the operation of LCPs by national authorities and that annulment with immediate effect could jeopardize the uniform conditions for permits of installations of that kind in the EU, and could cause legal uncertainty for the entities concerned, until a new BAT conclusion decision took effect. The court also stated that annulling the contested decision with immediate effect would undermine the objectives of a high level of environmental protection and improvement of the quality of the environment as provided for in art. 191(2) TFEU, art. 37 of the Charter of Fundamental Rights of the European Union, and in recitals 2 and 44, and art. 1 of the IED, to which the decision was intended to contribute.

Based on the above, a judgment was delivered keeping the decision in effect until the entry into force of a new decision to replace it within a reasonable period not to exceed twelve months from the date of notification of the judgment, adopted in accordance with the qualified-majority rules laid down in art. 3(3) of protocol 36. This means that although the decision has been annulled, LCPs continue to have an obligation to ensure that installations comply with the requirements under the BAT Conclusions by 17 August 2021 as required under art. 21 of the IED. Theoretically, twelve months from the day of publication of the judgment, the conditions laid down in the conclusions will cease to apply. However, another decision, of the same or even broader content, can be expected. If a new decision is issued, the time limit of four years for ensuring that installations comply with the guidelines in the conclusions will begin anew.