EuGH · C-771/23

Provisional text

JUDGMENT OF THE COURT (Second Chamber)

12 November 2026 (*)

( Action for annulment – Directive (EU) 2023/1791 – Energy efficiency – Amendment to Regulation (EU) 2023/955 – Legal basis of Directive 2023/1791 – Determination – Consideration of the effects of the directive – Point (c) of the first subparagraph of Article 192(2) TFEU – Article 194(2) TFEU – Measures significantly affecting a Member State’s choice between different energy sources and the general structure of its energy supply – Principle of proportionality – Regularity of the impact assessment for Directive 2023/1791 – Whether that directive is appropriate in relation to the objectives it pursues – Consideration of the specific situation of the Member States )

In Case C‑771/23,

ACTION for annulment under Article 263 TFEU, brought on 14 December 2023,

Republic of Poland, represented by B. Majczyna, acting as Agent,

applicant,

supported by:

Hungary, represented by M.Z. Fehér and K. Szíjjártó, acting as Agents,

intervener,

v

European Parliament, represented by O. Denkov and W.D. Kuzmienko, acting as Agents,

Council of the European Union, represented initially by R. Boucquey, J. Himmanen, A. Maceroni and A. Sikora-Kalėda, acting as Agents, and subsequently by R. Boucquey, J. Himmanen and A. Maceroni, acting as Agents, and lastly by J. Himmanen, A. Maceroni and K. Pleśniak, acting as Agents,

defendants,

supported by:

European Commission, represented by B. De Meester, D. Milanowska and M. Owsiany-Hornung, acting as Agents,

intervener,

THE COURT (Second Chamber),

composed of K. Jürimäe, President of Chamber, K. Lenaerts, President of the Court, acting as a Judge of the Second Chamber, Z. Csehi, M. Gavalec (Rapporteur) and F. Schalin, Judges,

Advocate General: N. Emiliou,

Registrar: V. Di Bucci,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        By its application, the Republic of Poland asks the Court to annul Directive (EU) 2023/1791 of the European Parliament and of the Council of 13 September 2023 on energy efficiency and amending Regulation (EU) 2023/955 (OJ 2023 L 231, p. 1) (‘the contested directive’).

 Legal context

 The EU Treaty

2        Article 5(4) TEU provides:

‘Under the principle of proportionality, the content and form of [EU] action shall not exceed what is necessary to achieve the objectives of the Treaties.

…’

 The FEU Treaty

3        Article 191(3) TFEU states that:

‘In preparing its policy on the environment, the Union shall take account of:

–        available scientific and technical data,

–        environmental conditions in the various regions of the Union,

–        the potential benefits and costs of action or lack of action,

–        the economic and social development of the Union as a whole and the balanced development of its regions.’

4        Point (c) of the first subparagraph of Article 192(2) TFEU reads as follows:

‘By way of derogation from the decision-making procedure provided for in paragraph 1 and without prejudice to Article 114, the Council [of the European Union] acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament, the [European] Economic and Social Committee [(EESC)] and the [European] Committee of the Regions [(CoR)], shall adopt:

…

(c)      measures significantly affecting a Member State’s choice between different energy sources and the general structure of its energy supply.’

5        Article 194(2) TFEU provides:

‘Without prejudice to the application of other provisions of the Treaties, the [Parliament] and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures necessary to achieve the objectives in paragraph 1. Such measures shall be adopted after consultation of the [EESC] and the [CoR].

Such measures shall not affect a Member State’s right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, without prejudice to Article 192(2)(c).’

6        The second paragraph of Article 296 TFEU provides:

‘Legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties.’

 Directive 2012/27/EU

7        Recital 10 of Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC (OJ 2012 L 315, p. 1) stated:

‘… it is necessary to update the Union’s legal framework for energy efficiency with a Directive pursuing the overall objective of the energy efficiency target of saving 20% of the Union’s primary energy consumption by 2020, and of making further energy efficiency improvements after 2020. To that end, this Directive should establish a common framework to promote energy efficiency within the Union and lay down specific actions to implement some of the proposals included in the Energy Efficiency Plan 2011 and achieve the significant unrealised energy saving potentials it identifies.’

8        Article 1 of that directive, entitled ‘Subject matter and scope’, provided, in paragraph 1:

‘This Directive establishes a common framework of measures for the promotion of energy efficiency within the Union in order to ensure the achievement of the Union’s 2020 20% headline target on energy efficiency and to pave the way for further energy efficiency improvements beyond that date.

It lays down rules designed to remove barriers in the energy market and overcome market failures that impede efficiency in the supply and use of energy, and provides for the establishment of indicative national energy efficiency targets for 2020.’

 Directive 2012/27, as amended by Directive (EU) 2018/2002

9        Article 1(1) of Directive 2012/27, as amended by Directive (EU) 2018/2002 of the European Parliament and of the Council of 11 December 2018 (OJ 2018 L 328, p. 210), provided:

‘This Directive establishes a common framework of measures to promote energy efficiency within the Union in order to ensure that the Union’s 2020 headline targets on energy efficiency of 20% and its 2030 headline targets on energy efficiency of at least 32.5% are met and paves the way for further energy efficiency improvements beyond those dates.

This Directive lays down rules designed to remove barriers in the energy market and overcome market failures that impede efficiency in the supply and use of energy, and provides for the establishment of indicative national energy efficiency targets and contributions for 2020 and 2030.

This Directive contributes to the implementation of the energy efficiency first principle.’

 Directive 2018/2002

10      Recitals 1, 5, 6 and 45 of Directive 2018/2002 stated:

‘(1)      .… Improving energy efficiency throughout the full energy chain, including energy generation, transmission, distribution and end-use, will benefit the environment, improve air quality and public health, reduce greenhouse gas emissions, improve energy security by reducing dependence on energy imports from outside the Union, cut energy costs for households and companies, help alleviate energy poverty, and lead to increased competitiveness, more jobs and increased economic activity throughout the economy, thus improving citizens’ quality of life. This is in line with the Union commitments made in the framework of the Energy Union and global climate agenda established by the 2015 Paris Agreement[, adopted on 12 December 2015 under the United Nations Framework Convention on Climate Change (OJ 2016 L 282, p. 4; “The Paris Agreement”), approved on behalf of the European Union by Council Decision (EU) 2016/1841 of 5 October 2016 (OJ 2016 L 282, p. 1)] following the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change [which committed] to keep the increase of the global average temperature to well below 2 °C above pre-industrial levels and to pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels.

…

(5)      The European Council of 23 and 24 October 2014 supported a 27% energy efficiency target for 2030 at Union level, to be reviewed by 2020 having in mind a Union-level target of 30%. In its resolution of 15 December 2015 entitled “Towards a European Energy Union”, the [Parliament] called on the [European Commission] to assess, in addition, the viability of a 40% energy efficiency target for the same timeframe. It is therefore appropriate to amend Directive 2012/27/EU, in order to adapt it to the 2030 perspective.

(6)      The need for the Union to achieve its energy efficiency targets at Union level, expressed in primary and/or final energy consumption, should be clearly set out in the form of a target of at least 32.5% for 2030. …

…

(45)      Since the objectives of this Directive, namely to achieve the Union’s energy efficiency targets of 20% by 2020 and of at least 32.5% by 2030 and to pave the way towards further energy efficiency improvements beyond those dates, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 [TEU]. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.’

 The contested directive

11      It is clear from its recitals that the contested directive was adopted on the basis of the ‘Treaty on the Functioning of the European Union, and in particular Article 194(2) thereof’.

12      Recitals 7 to 9, 14, 15, 24, 27, 28, 30 and 152 of the directive state:

‘(7)      In its communication of 28 November 2018 on “A Clean Planet for all – A European strategic long-term vision for a prosperous, modern, competitive and climate neutral economy”, the Commission stated that energy efficiency is a key area of action, without which the full decarbonisation of the Union’s economy cannot be achieved. The need to capture the cost-effective energy saving opportunities has led to the Union’s current energy efficiency policy. In December 2018, a new 2030 Union headline energy efficiency target of at least 32.5%, compared to projected energy use in 2030, was included as part of the Clean Energy for All Europeans package, which aimed at putting energy efficiency first, achieving global leadership in renewable energies and providing a fair deal for consumers.

(8)      The impact assessment accompanying [the Communication from the Commission of 17 September 2020 entitled “Stepping up Europe’s 2030 climate ambition – Investing in a climate-neutral future for the benefit of our people” (“the Climate Target Plan”)] demonstrated that, to achieve the increased climate ambition, energy efficiency improvements will need to be significantly raised from the current level of 32.5%.

(9)      An increase in the Union’s 2030 energy efficiency target can reduce energy prices and be crucial in reducing [greenhouse gas] emissions, accompanied by an increase and uptake of electrification, hydrogen, e-fuels and other relevant technologies necessary for the green transition, including in the transport sector. Even with the rapid growth of renewable electricity generation, energy efficiency can reduce the need of new power generation capacity and the costs relating to storage, transmission and distribution. Increased energy efficiency is also particularly important for the security of the energy supply of the Union, by lowering the Union’s dependence on the import of fuels from third countries. Energy efficiency is one of the cleanest and most cost-efficient measures by which to address that dependence.

…

(14)      The higher level of ambition requires a stronger promotion of cost-effective energy efficiency measures in all areas of the energy system and in all relevant sectors where activity affects energy demand, such as the transport, water and agriculture sectors. Improving energy efficiency throughout the full energy chain, including energy generation, transmission, distribution and end-use, will benefit the environment, improve air quality and public health, reduce [greenhouse gas] emissions, improve energy security by decreasing the need for energy imports, in particular of fossil fuels, cut energy costs for households and companies, help alleviate energy poverty, and lead to increased competitiveness, more jobs and increased economic activity throughout the economy. Improving energy efficiency would thus improve citizens’ quality of life, while contributing to the transformation of the Union’s energy relations with third-country partners towards achieving climate neutrality. That complies with the Union commitments made in the framework of the Energy Union and global climate agenda established by the Paris Agreement. Improving the energy performance of various sectors has the potential of fostering urban regeneration, including improvement of buildings, and changes in mobility and accessibility patterns, while promoting more efficient, sustainable and affordable options.

(15)      This Directive takes a step forward towards climate neutrality by 2050, under which energy efficiency is to be treated as an energy source in its own right. The energy efficiency first principle is an overarching principle that should be taken into account across all sectors, going beyond the energy system, at all levels, including in the financial sector. Energy efficiency solutions should be considered as the first option in policy, planning and investment decisions when setting new rules for the supply side and other policy areas. While the energy efficiency first principle should be applied without prejudice to other legal obligations, objectives and principles, such obligations, objectives and principles should not hamper its application or lead to exemptions from applying the principle. The Commission should ensure that energy efficiency and demand response can compete on equal terms with generation capacity. Energy efficiency improvements need to be made whenever they are more cost-effective than equivalent supply-side solutions. That should help exploit the multiple benefits of energy efficiency for the Union, in particular for citizens and businesses. Implementing energy efficiency improvement measures should also be a priority in alleviating energy poverty.

…

(24)      This Directive is part of a broader policy framework of energy efficiency policies addressing energy efficiency potentials in specific policy areas …

…

(27)      In its communication of 28 November 2018 on “A Clean Planet for all – A European strategic long-term vision for a prosperous, modern, competitive and climate neutral economy”, the Commission projects that the 32.5% Union’s energy efficiency target for 2030 and the other policy instruments of the existing framework would lead to a reduction in [greenhouse gas] emissions of about 45% by 2030. For an increased climate ambition of a 55% decrease of [greenhouse gas] emissions by 2030, the impact assessment of the Climate Target Plan assessed what level of efforts would be needed in the different policy areas. It concluded that, in relation to the baseline, achieving the [greenhouse gas] emissions target in a cost-optimal way meant that primary energy consumption and final energy consumption are to decrease by at least 39 to 41% and 36 to 37% respectively.

(28)      The Union’s energy efficiency target was initially set and calculated using the 2007 EU Reference Scenario projections for 2030 as a baseline. The change in the … energy balance calculation methodology [of the statistical office of the European Union (Eurostat)] and improvements in subsequent modelling projections call for a change of the baseline. Thus, using the same approach to define the target, namely by comparing it to the future baseline projections, the ambition of the Union’s 2030 energy efficiency target is set compared to the 2020 EU Reference Scenario projections for 2030 reflecting national contributions from the national energy and climate plans. With that updated baseline, the Union will need to further increase its energy efficiency ambition by at least 11.7% in 2030 compared to the level of efforts under the 2020 EU Reference Scenario. The new way of expressing the level of ambition for the Union’s targets does not affect the actual level of efforts needed and corresponds to a reduction of 40.5% for primary energy consumption and 38% for final energy consumption when compared to the 2007 EU Reference Scenario projections for 2030.

…

(30)      The need for the Union to improve its energy efficiency should be expressed in primary energy consumption and final energy consumption, to be achieved in 2030, indicating an additional level of efforts required when compared to the measures in place or planned measures in the national energy and climate plans. The 2020 EU Reference Scenario projects 864 [million tonnes of oil equivalent (Mtoe)] of final energy consumption and 1 124 Mtoe of primary energy consumption to be reached in 2030 (excluding ambient energy and including international aviation). An additional reduction of 11.7% results in 763 Mtoe and 992.5 Mtoe in 2030. Compared to 2005 levels, it means that final energy consumption in the Union should be reduced by approximately 25% and primary energy consumption should be reduced by approximately 34%. There are no binding targets at Member State level in the 2020 and 2030 perspectives, and Member States should establish their contributions to the achievement of the Union’s energy efficiency target taking into account the formula provided for in this Directive. Member States should be free to set their national objectives based either on primary energy consumption or final energy consumption or primary energy savings or final energy savings, or on energy intensity. This Directive amends the way in which Member States should express their national contributions to the Union’s target. Member States’ contributions to the Union’s target should be expressed in primary energy consumption and final energy consumption to ensure consistency and monitoring of progress. A regular evaluation of progress towards the achievement of the Union’s 2030 targets is necessary and is provided for in Regulation (EU) 2018/1999 [of the European Parliament and of the Council of 11 December 2018 on the Governance of the Energy Union and Climate Action, amending Regulations (EC) No 663/2009 and (EC) No 715/2009 of the European Parliament and of the Council, Directives 94/22/EC, 98/70/EC, 2009/31/EC, 2009/73/EC, 2010/31/EU, 2012/27/EU and 2013/30/EU of the European Parliament and of the Council, Council Directives 2009/119/EC and (EU) 2015/652 and repealing Regulation (EU) No 525/2013 of the European Parliament and of the Council (OJ 2018 L 328, p. 1)].

…

(152)      Since the objectives of this Directive, namely to achieve the Union’s energy efficiency target and to pave the way towards further energy efficiency improvements and towards climate neutrality, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 [TEU]. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.’

13      Article 1 of the contested directive, headed ‘Subject matter and scope’, provides:

‘1.      This Directive establishes a common framework of measures to promote energy efficiency within the Union in order to ensure that the Union’s targets on energy efficiency are met and enables further energy efficiency improvements. The aim of that common framework is to contribute to the implementation of Regulation (EU) 2021/1119 of the European Parliament and of the Council [of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 (“European Climate Law”) (OJ 2021 L 243, p. 1)] and to the Union’s security of energy supply by reducing its dependence on energy imports, including fossil fuels.

This Directive lays down rules designed to implement energy efficiency as a priority across all sectors, remove barriers in the energy market and overcome market failures that impede efficiency in the supply, transmission, storage and use of energy. It also provides for the establishment of indicative national energy efficiency contributions for 2030.

This Directive contributes to the implementation of the energy efficiency first principle, thus also contributing to the Union being an inclusive, fair and prosperous society with a modern, resource-efficient and competitive economy.

2.      The requirements laid down in this Directive are minimum requirements and shall not prevent any Member State from maintaining or introducing more stringent measures. Such measures shall comply with Union law. Where national legislation provides for more stringent measures, the Member State shall notify such legislation to the Commission.’

14      Article 2(46) of that directive defines ‘efficient district heating and cooling’ as meaning a district heating or cooling system meeting the criteria laid down in Article 26 of the directive.

15      Article 4 of the directive, entitled ‘Energy efficiency targets’, is worded as follows:

‘1.      Member States shall collectively ensure a reduction of energy consumption of at least 11.7% in 2030 compared to the projections of the 2020 EU Reference Scenario so that the Union’s final energy consumption amounts to no more than 763 Mtoe. Member States shall make efforts to collectively contribute to the indicative Union primary energy consumption target amounting to no more than 992.5 Mtoe in 2030.

2.      Each Member State shall set an indicative national energy efficiency contribution based on final energy consumption to meet, collectively, the Union’s binding final energy consumption target referred to in paragraph 1 of this Article and shall make efforts to contribute collectively to the Union’s indicative primary energy consumption target referred to in that paragraph. Member States shall notify those contributions to the Commission, together with an indicative trajectory for those contributions, as part of the updates of their integrated national energy and climate plans submitted pursuant to Article 14(2) of Regulation [2018/1999], and of their integrated national energy and climate plans notified pursuant to Article 3 and Articles 7 to 12 of that Regulation. When doing so, Member States shall also express their contributions in terms of an absolute level of primary energy consumption in 2030. When setting their indicative national energy efficiency contributions, Member States shall take into account the requirements set out in paragraph 3 of this Article and explain how, and on the basis of which data, the contributions have been calculated. To that end, they may use the formula set out in Annex I to this Directive.

Member States shall provide the shares of primary energy consumption and final energy consumption of energy end-use sectors, as defined in Regulation (EC) No 1099/2008 [of the European Parliament and of the Council of 22 October 2008 on energy statistics (OJ 2008 L 304, p. 1)], including industry, residential, services and transport, in their national energy efficiency contributions. Member States shall also indicate projections for energy consumption in [information and communications technology (ICT)].

3.      In setting their indicative national energy efficiency contributions referred to in paragraph 2, Member States shall take into account:

(a)      the Union’s 2030 final energy consumption target of no more than 763 Mtoe and the primary energy consumption target of no more than 992.5 Mtoe, as provided for in paragraph 1;

(b)      the measures provided for in this Directive;

(c)      other measures to promote energy efficiency within Member States and at Union level;

(d)      any relevant factors affecting efficiency efforts:

…

(e)      other national circumstances affecting energy consumption, in particular:

(i)      [gross domestic product (GDP)] and demographic evolution and forecast;

(ii)      changes of energy imports and exports, developments in the energy mix and the deployment of new sustainable fuels;

(iii)      the development of all sources of renewable energies, nuclear energy, carbon capture and storage;

(iv)      the decarbonisation of energy intensive industries;

(v)      the level of ambition in the national decarbonisation or climate neutrality plans;

(vi)      economic energy savings potential;

(vii)      current climate conditions and climate change forecast.

4.      When applying the requirements set out in paragraph 3, a Member State shall ensure that its contribution in Mtoe is not more than 2.5% above what it would have been had it resulted from the formula set out in Annex I.

5.      The Commission shall assess that the collective contribution of Member States is at least equal to the Union’s binding target for final energy consumption set out in paragraph 1 of this Article. Where the Commission concludes that it is insufficient, as part of its assessment of the draft updated national energy and climate plans pursuant to Article 9(2) of Regulation [2018/1999], or at the latest by 1 March 2024, taking into consideration the updated 2020 EU Reference Scenario pursuant to this paragraph, the Commission shall submit to each Member State a corrected indicative national energy efficiency contribution for final energy consumption on the basis of:

(a)      the remaining collective reduction of final energy consumption needed to achieve the Union’s binding target set out in paragraph 1;

(b)      the relative [greenhouse gas] intensity per GDP unit in 2019 among the Member States concerned;

(c)      the GDP of those Member States in 2019.

Before applying the formula in Annex I for the mechanism established in this paragraph and at the latest by 30 November 2023, the Commission shall update the 2020 EU Reference Scenario on the basis of the latest Eurostat data reported by the Member States, in accordance with Article 4(2), point (b), and Article 14 of Regulation [2018/1999].

Notwithstanding Article 37 of this Directive, Member States that wish to update their indicative national energy efficiency contributions pursuant to paragraph 2 of this Article, using the updated 2020 EU Reference Scenario, shall notify their updated indicative national energy efficiency contribution at the latest by 1 February 2024. Where a Member State wishes to update its indicative national energy efficiency contribution, it shall ensure that its contribution in Mtoe is not more than 2.5% above what it would have been had it resulted from the formula set out in Annex I with the use of the updated 2020 EU Reference Scenario.

Member States to which a corrected indicative national energy efficiency contribution was submitted by the Commission shall update their indicative national energy efficiency contributions pursuant to paragraph 2 of this Article, with the corrected indicative national energy efficiency contribution for final energy consumption together with an update of their indicative trajectory for those contribution and, where applicable, their additional measures, as part of the updates of their integrated national energy and climate plans submitted pursuant to Article 14(2) of Regulation [2018/1999]. The Commission shall, in accordance with that Regulation, require Member States to submit, without delay, their corrected indicative energy efficiency contribution and, where applicable, their additional measures to ensure the application of the mechanism set out in this paragraph.

Where a Member State has notified an indicative national energy efficiency contribution for final energy consumption in Mtoe equal to or below what it would have been had it resulted from the formula set out in Annex I, the Commission shall not amend that contribution.

When applying the mechanism set out in this paragraph, the Commission shall ensure that there is no difference left between the sum of the national contributions of all Member States and the Union’s binding target set out in paragraph 1.

6.      Where the Commission concludes, on the basis of its assessment pursuant to Article 29(1) and (3) of Regulation [2018/1999], that insufficient progress has been made towards meeting the energy efficiency contributions, Member States that are above their indicative trajectories for final energy consumption referred to in paragraph 2 of this Article shall ensure that additional measures are implemented within one year of the date of receipt of the Commission’s assessment in order to get back on track to reach their energy efficiency contributions. Those additional measures shall include, but shall not be limited to, at least one of the following measures:

(a)      national measures delivering additional energy savings, including stronger project development assistance for the implementation of energy efficiency investment measures;

(b)      increasing the energy savings obligation set out in Article 8 of this Directive;

(c)      adjusting the obligation for public sector;

(d)      making a voluntary financial contribution to the national energy efficiency fund referred to in Article 30 of this Directive or another financing instrument dedicated to energy efficiency, where the annual financial contributions shall be equal to the investments required to reach the indicative trajectory.

Where a Member State’s final energy consumption is above its indicative trajectory for final energy consumption referred to in paragraph 2 of this Article, it shall include in its integrated national energy and climate progress report submitted pursuant to Article 17 of Regulation [2018/1999] an explanation of the measures it will take to cover the gap in order to ensure that it reaches its national energy efficiency contributions and the amount of energy savings expected to be delivered.

The Commission shall assess whether the national measures referred to in this paragraph are sufficient to achieve the Union’s energy efficiency targets. Where national measures are deemed to be insufficient, the Commission shall, as appropriate, propose measures and exercise its power at Union level in order to ensure, in particular, the achievement of the Union’s 2030 targets for energy efficiency.

7.      The Commission shall assess by 31 December 2026 any methodological changes in the data reported pursuant to Regulation [No 1099/2008], in the methodology for calculating energy balance, and in energy models for European energy use, and, if necessary, propose technical calculation adjustments to the Union’s 2030 targets with a view to maintaining the level of ambition set out in paragraph 1 of this Article.’

16      Articles 5 to 7 fall within Chapter II of the contested directive, which is entitled ‘Exemplary role of public sector’.

17      Article 5, entitled ‘Public sector leading on energy efficiency’, provides in paragraph 1:

‘Member States shall ensure that the total final energy consumption of all public bodies combined is reduced by at least 1.9% each year, when compared to 2021.

…’

18      Articles 8 to 20 of that directive fall within Chapter III, which is entitled ‘Efficiency in energy use’.

19      Article 8 of the contested directive, entitled ‘Energy savings obligation’, provides:

‘1.      Member States shall achieve cumulative end-use energy savings at least equivalent to:

(a)      new savings each year from 1 January 2014 to 31 December 2020 of 1.5% of annual energy sales to final customers by volume, averaged over the most recent three-year period preceding 1 January 2013. Sales of energy, by volume, used in transport may be excluded, in whole or in part, from that calculation;

(b)      new savings each year from 1 January 2021 to 31 December 2030 of:

(i)      0.8% of annual final energy consumption from 1 January 2021 to 31 December 2023, averaged over the most recent three-year period preceding 1 January 2019;

(ii)      1.3% of annual final energy consumption from 1 January 2024 to 31 December 2025, averaged over the most recent three-year period preceding 1 January 2019;

(iii)      1.5% of annual final energy consumption from 1 January 2026 to 31 December 2027, averaged over the most recent three-year period preceding 1 January 2019;

(iv)      1.9% of annual final energy consumption from 1 January 2028 to 31 December 2030, averaged over the most recent three-year period preceding 1 January 2019.

…

Member States shall decide how to phase the calculated quantity of new savings over each period referred to in points (a) and (b) of the first subparagraph, provided that the required total cumulative end-use energy savings have been achieved by the end of each obligation period.

…

2.      Member States shall achieve the amount of energy savings required under paragraph 1 of this Article either by establishing an energy efficiency obligation scheme as referred to in Article 9 or by adopting alternative policy measures as referred to in Article 10. Member States may combine an energy efficiency obligation scheme with alternative policy measures. Member States shall ensure that energy savings resulting from the policy measures referred to in Articles 9 and 10 and Article 30(14) are calculated in accordance with Annex V.

3.      Member States shall implement energy efficiency obligation schemes, alternative policy measures, or a combination of both, or programmes or measures financed under a national energy efficiency fund, as a priority among, but not limited to, people affected by energy poverty, vulnerable customers, people in low-income households and, where applicable, people living in social housing. Member States shall ensure that policy measures implemented pursuant to this Article have no adverse effect on those persons. Where applicable, Member States shall make the best possible use of funding, including public funding, funding facilities established at Union level, and revenues from allowances pursuant to Article 24(3), point (b), with the aim of removing adverse effects and ensuring a just and inclusive energy transition.

For the purpose of achieving the energy savings required under paragraph 1 and without prejudice to Regulation (EU) 2019/943 [of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity (OJ 2019 L 158, p. 54)] and Directive (EU) 2019/944 [of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU (OJ 2019 L 158, p. 125)], Member States shall, for the purpose of designing such policy measures, consider and promote the role of renewable energy communities and citizen energy communities in the contribution to the implementation towards those policy measures.

Member States shall establish and achieve a share of the required amount of cumulative end-use energy savings among people affected by energy poverty, vulnerable customers, people in low-income households and, where applicable, people living in social housing. This share shall at least be equal to the proportion of households in energy poverty as assessed in their national energy and climate plans established in accordance with Article 3(3), point (d), of Regulation [2018/1999]. Member States shall, in their assessment of the share of energy poverty in their national energy and climate plans, consider the following indicators:

(a)      the inability to keep the home adequately warm (Eurostat, SILC [ilc_mdes01]);

(b)      the arrears on utility bills (Eurostat, SILC [ilc_mdes07]);

(c)      the total population living in a dwelling with a leaking roof, damp walls, floors or foundation, or rot in window frames or floor (Eurostat, SILC [ilc_mdho01]);

(d)      at-risk-of-poverty rate (Eurostat, SILC and ECHP surveys [ilc_li02]) (cutoff point: 60% of median equivalised income after social transfers).

If a Member State has not notified the share of households in energy poverty as assessed in their national energy and climate plan, the share of the required amount of cumulative end-use energy savings among people affected by energy poverty, vulnerable customers, people in low-income households and, where applicable, people living in social housing, shall be at least equal to the arithmetic average share of the indicators referred to in the third subparagraph for the year 2019 or, if not available for 2019, for the linear extrapolation of their values for the last three years that are available.

…

10.      Member States shall describe in the updates of their integrated national energy and climate plans submitted pursuant to Article 14(2) of Regulation [2018/1999], in their subsequent integrated national energy and climate plans notified pursuant to Article 3 and Articles 7 to 12 of [that regulation] and in accordance with Annex III to [that regulation], and respective progress reports the calculation of the amount of energy savings to be achieved over the period from 1 January 2021 to 31 December 2030 and shall, if relevant, explain how the annual savings rate and the calculation baseline were established, and how and to what extent the options referred to in paragraph 8 of this Article were applied.

11.      Member States shall notify the Commission of the amount of the required energy savings referred to in paragraph 1, first subparagraph, point (b), and paragraph 3 of this Article, a description of the policy measures to be implemented to achieve the required total amount of the cumulative end-use energy savings and their calculation methodologies pursuant to Annex V to this Directive, as part of the updates of their integrated national energy and climate plans submitted pursuant to Article 14(2) of Regulation [2018/1999], and as part of their integrated national energy and climate plans notified pursuant to Article 3 and Articles 7 to 12 of Regulation [2018/1999]. Member States shall use the reporting template provided to the Member States by the Commission.

12.      Where on the basis of the assessment of the integrated national energy and climate progress reports pursuant to Article 29 of Regulation [2018/1999], or of the draft or final update of the latest notified integrated national energy and climate plan submitted pursuant to Article 14 of Regulation [2018/1999], or of the assessment of the subsequent draft and final integrated national energy and climate plans notified pursuant to Article 3 and Articles 7 to 12 of Regulation [2018/1999], the Commission concludes that policy measures do not ensure the achievement of the required amount of cumulative end-use energy savings by the end of the obligation period, the Commission may issue recommendations in accordance with Article 34 of Regulation [2018/1999] to the Member States whose policy measures it deems to be insufficient to ensure the fulfilment of their energy savings obligations.

13.      Where a Member State has not achieved the required cumulative end-use energy savings by the end of each obligation period set out in paragraph 1, it shall achieve the outstanding energy savings in addition to the cumulative end-use energy savings required by the end of the following obligation period.

Alternatively, where a Member State has achieved cumulative end-use energy savings above the required level by the end of each obligation period set out in paragraph 1, it shall be entitled to carry the eligible amount of no more than 10% of such surplus into the following obligation period without the target commitment being increased.

14.      As part of their updates of national energy and climate plans submitted pursuant to Article 14(2) of Regulation [2018/1999], their relevant national energy and climate progress reports submitted pursuant to Article 17 of that Regulation, and their subsequent integrated national energy and climate plans notified pursuant to Article 3 and Articles 7 to 12 of that Regulation, Member States shall demonstrate including, where appropriate, with evidence and calculations:

(a)      that where there is an overlap in the impact of policy measures or individual actions, there is no double counting of energy savings;

(b)      how energy savings achieved pursuant to paragraph 1, first subparagraph, point (b), of this Article, contribute to the achievement of their national contribution pursuant to Article 4;

(c)      that policy measures are established for fulfilling their energy savings obligation, designed in compliance with this Article and that those policy measures are eligible and appropriate to ensure the achievement of the required amount of cumulative end-use energy savings by the end of each obligation period.’

20      Article 12 of the contested directive, entitled ‘Data centres’, provides:

‘1.      By 15 May 2024 and every year thereafter, Member States shall require owners and operators of data centres in their territory with a power demand of the installed information technology (IT) of at least 500 [kilowatts (kW)], to make the information set out in Annex VII publicly available, except for information subject to Union and national law protecting trade and business secrets and confidentiality.

…

3.      The Commission shall establish a European database on data centres that includes information communicated by the obligated data centres in accordance with paragraph 1. The European database shall be publicly available on an aggregated level.

4.      Member States shall encourage owners and operators of data centres in their territory with a power demand of the installed IT equal to or greater than 1 [megawatt (MW)] to take into account the best practices referred to in the most recent version of the European Code of Conduct on Data Centre Energy Efficiency.

5.      By 15 May 2025, the Commission shall assess the available data on the energy efficiency of data centres submitted to it pursuant to paragraphs 1 and 3 and shall submit a report to the [Parliament] and to the Council, accompanied, where appropriate, by legislative proposals containing further measures to improve energy efficiency, including establishing minimum performance standards and an assessment on the feasibility of transition towards a net-zero emission data centres sector, in close consultation with the relevant stakeholders. Such proposals may establish a timeframe within which existing data centres are to be required to meet minimum performance.’

21      Article 24 of the contested directive, entitled ‘Empowering and protecting vulnerable customers and alleviating energy poverty’, provides:

‘1.      Without prejudice to their national economic and social policies, and to their obligations under Union law, Member States shall take appropriate measures to empower and protect people affected by energy poverty, vulnerable customers, people in low-income households and, where applicable, people living in social housing.

…

3.      To support people affected by energy poverty, vulnerable customers, people in low-income households and, where applicable, people living in social housing, Member States shall, where applicable:

(a)      implement energy efficiency improvement measures to mitigate distributional effects from other policies and measures, such as taxation measures implemented in accordance with Article 10 of this Directive, or the application of emissions trading in the buildings and transport sector in accordance with [Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Union and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32)];

(b)      make the best possible use of public funding available at Union and national level, including, where applicable, the financial contribution that Member States receive from the Social Climate Fund pursuant to Articles 9 and 14 of [Regulation (EU) 2023/955 of the European Parliament and of the Council of 10 May 2023 establishing a Social Climate Fund and amending Regulation (EU) 2021/1060 (OJ 2023 L 130, p. 1)], and revenues from allowance auctions from emissions trading pursuant to the [European Union Emissions Trading System] in accordance with [Directive 2003/87], for investments into energy efficiency improvement measures as priority actions;

…’

22      Chapter V of the contested directive, which contains Articles 25 to 27, is entitled ‘Efficiency in energy supply’.

23      Article 26 of that directive, entitled ‘Heating and cooling supply’, provides as follows:

‘1.      In order to ensure more efficient consumption of primary energy and to increase the share of renewable energy in heating and cooling supply going into the network, an efficient district heating and cooling system shall meet the following criteria:

(a)      until 31 December 2027, a system using at least 50% renewable energy, 50% waste heat, 75% cogenerated heat or 50% of a combination of such energy and heat;

(b)      from 1 January 2028, a system using at least 50% renewable energy, 50% waste heat, 50% renewable energy and waste heat, 80% of high-efficiency cogenerated heat or at least a combination of such thermal energy going into the network where the share of renewable energy is at least 5% and the total share of renewable energy, waste heat or high-efficiency cogenerated heat is at least 50%;

(c)      from 1 January 2035, a system using at least 50% renewable energy, 50% waste heat or 50% renewable energy and waste heat, or a system where the total share of renewable energy, waste heat or high-efficiency cogenerated heat is at least 80% and in addition the total share of renewable energy or waste heat is at least 35%;

(d)      from 1 January 2040, a system using at least 75% renewable energy, 75% waste heat or 75% renewable energy and waste heat, or a system using at least 95% renewable energy, waste heat and high-efficiency cogenerated heat and in addition the total share of renewable energy or waste heat is at least 35%;

(e)      from 1 January 2045, a system using at least 75% renewable energy, 75% waste heat or 75% renewable energy and waste heat;

(f)      from 1 January 2050, a system using only renewable energy, only waste heat, or only a combination of renewable energy and waste heat.

2.      Member States may also choose, as an alternative to the criteria set out in paragraph 1 of this Article, sustainability performance criteria based on the amount of [greenhouse gas] emissions from the district heating and cooling system per unit of heat or cold delivered to the customers, taking into consideration measures implemented to fulfil the obligation pursuant to Article 24(4) of [Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources (OJ 2018 L 328, p. 82)]. When choosing those criteria, an efficient district heating and cooling system shall have the following maximum amount of [greenhouse gas] emissions per unit of heat or cold delivered to the customers:

(a)      until 31 December 2025: 200 grams/[kilowatt-hour (kWh)];

(b)      from 1 January 2026: 150 grams/kWh;

(c)      from 1 January 2035: 100 grams/kWh;

(d)      from 1 January 2045: 50 grams/kWh;

(e)      from 1 January 2050: 0 grams/kWh.

3.      Member States may choose to apply the criteria of [greenhouse gas] emissions per unit of heat or cold for any given period referred to in paragraph 2, points (a) to (e), of this Article. If they choose to do so, they shall notify the Commission by 11 January 2024 for the period referred to in paragraph 2, point (a), of this Article and at least six months before the beginning of the relevant periods referred to in paragraph 2, points (b) to (e), of this Article. Such a notification shall include the measures implemented to fulfil the obligation pursuant to Article 24(4) of Directive [2018/ 2001] if they have not already been notified in the latest update of their national energy and climate plan.

4.      In order for a district heating and cooling system to qualify as efficient, Member States shall ensure that where it is built or its supply units are substantially refurbished, the district heating or cooling system meet the criteria set out in paragraph 1 or 2 applicable at the time when it starts or continues its operation after the refurbishment. In addition, Member States shall ensure that when a district heating and cooling system is built or its supply units are substantially refurbished:

(a)      there is no increase in the use of fossil fuels other than natural gas in existing heat sources compared to the annual consumption averaged over the previous three calendar years of full operation before refurbishment; and

(b)      any new heat sources in that system do not use fossil fuels, except natural gas, if built or substantially refurbished until 2030.

5.      Member States shall ensure that as from 1 January 2025, and every five years thereafter, operators of all existing district heating and cooling systems with a total heat and cold output exceeding 5 MW and which do not meet the criteria set out in paragraph 1, points (b) to (e), prepare a plan to ensure more efficient consumption of primary energy, to reduce distribution losses and to increase the share of renewable energy in heating and cooling supply. The plan shall include measures to meet the criteria set out in paragraph 1, points (b) to (e), and shall require approval by the competent authority.

…

13.      On the basis of the harmonised efficiency reference values referred to in Annex III, point (d), Member States shall ensure that the origin of electricity produced from high-efficiency cogeneration can be guaranteed according to objective, transparent and non-discriminatory criteria laid down by each Member State. They shall ensure that that guarantee of origin complies with the requirements laid down in, and contains at least the information specified in, Annex XII. Member States shall mutually recognise their guarantees of origin, exclusively as proof of the information referred to in this paragraph. Any refusal to recognise a guarantee of origin as such proof, in particular for reasons relating to the prevention of fraud, shall be based on objective, transparent and non-discriminatory criteria. Member States shall notify the Commission of such refusal and set out the reasons for it. In the event of a refusal to recognise a guarantee of origin, the Commission may adopt a decision to compel the refusing party to recognise it, in particular with regard to objective, transparent and non-discriminatory criteria on which such recognition is based.

…’

24      Article 33 of the contested directive, entitled ‘Delegated acts’, provides, in paragraph 3:

‘The Commission is empowered to adopt delegated acts in accordance with Article 34 to supplement this Directive by establishing, after having consulted the relevant stakeholders, a common Union scheme for rating the sustainability of data centres located in its territory. The Commission shall adopt the first such delegated act by 31 December 2023. The common Union scheme shall establish the definition of data centre sustainability indicators and shall set out the key performance indicators and the methodology to measure them.’

25      Annex III to that directive, entitled ‘Methodology for determining the efficiency of the cogeneration process’, provides:

‘Values used for calculation of efficiency of cogeneration and primary energy savings shall be determined on the basis of the expected or actual operation of the unit under normal conditions of use.

(a)      High-efficiency cogeneration

For the purpose of this Directive, high-efficiency cogeneration shall fulfil the following criteria:

–        cogeneration production from cogeneration units shall provide primary energy savings calculated in accordance with point (b) of at least 10% compared with the references for separate production of heat and electricity;

–        production from small-scale and micro-cogeneration units providing primary energy savings may qualify as high-efficiency cogeneration;

–        for cogeneration units that are built or substantially refurbished after the transposition of this Annex, direct emissions of the carbon dioxide [(CO2)] from cogeneration production that is fuelled with fossil fuels, are less than 270 [grams (g)] CO2 per 1 kWh of energy output from the combined generation (including heating/cooling, power and mechanical energy);

–        cogeneration units in operation before 10 October 2023, may derogate from this requirement until 1 January 2034 provided that they have a plan to reduce progressively the emissions to meet the threshold of less than 270 g CO2 per 1 kWh by 1 January 2034 and that they have notified this plan to relevant operators and competent authorities.

When a cogeneration unit is built or substantially refurbished, Member States shall ensure that there is no increase in the use of fossil fuels other than natural gas in existing heat sources compared to the annual consumption averaged over the previous three calendar years of full operation before refurbishment, and that any new heat sources in that system do not use fossil fuels other than natural gas.

…’

26      Under Annex VII to the contested directive, which concerns the ‘minimum requirements for monitoring and publishing the energy performance of data centres’:

‘The following minimum information shall be monitored and published with regard to the energy performance of data centres referred to in Article 12:

(a)      the name of the data centre, the name of the owner and operators of the data centre, the date on which the data centre started its operations and the municipality where the data centre is based;

(b)      the floor area of the data centre, the installed power, the annual incoming and outgoing data traffic, and the amount of data stored and processed within the data centre;

(c)      the performance, during the last full calendar year, of the data centre in accordance with key performance indicators about, inter alia, energy consumption, power utilisation, temperature set points, waste heat utilisation, water usage and use of renewable energy, using as a basis, where applicable, the CEN/CENELEC EN 50600-4 “Information technology – Data centre facilities and infrastructures”, until the entry into force of the delegated act adopted pursuant to Article 33(3).’

 The Agreement on better law-making

27      Points 12 to 16 of the Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making of 13 April 2016 (OJ 2016 L 123, p. 1) (‘the Agreement on better law-making’), which appear in Chapter III thereof, entitled ‘Tools for better law-making’, state:

‘12.      The three Institutions agree on the positive contribution of impact assessments in improving the quality of Union legislation.

Impact assessments are a tool to help the three Institutions reach well-informed decisions and not a substitute for political decisions within the democratic decision-making process. Impact assessments must not lead to undue delays in the law-making process or prejudice the co-legislators’ capacity to propose amendments.

Impact assessments should cover the existence, scale and consequences of a problem and the question whether or not Union action is needed. They should map out alternative solutions and, where possible, potential short and long-term costs and benefits, assessing the economic, environmental and social impacts in an integrated and balanced way and using both qualitative and quantitative analyses. The principles of subsidiarity and proportionality should be fully respected, as should fundamental rights. Impact assessments should also address, whenever possible, the “cost of non-Europe” and the impact on competitiveness and the administrative burdens of the different options, having particular regard to [small and medium-sized enterprises (SMEs)] (“Think Small First”), digital aspects and territorial impact. Impact assessments should be based on accurate, objective and complete information and should be proportionate as regards their scope and focus.

13.      The Commission will carry out impact assessments of its legislative and non-legislative initiatives, delegated acts and implementing measures which are expected to have significant economic, environmental or social impacts. The initiatives included in the Commission Work Programme or in the joint declaration will, as a general rule, be accompanied by an impact assessment.

In its own impact assessment process, the Commission will consult as widely as possible. The Commission’s Regulatory Scrutiny Board will carry out an objective quality check of its impact assessments. The final results of the impact assessments will be made available to the [Parliament], the Council and national Parliaments, and will be made public along with the opinion(s) of the Regulatory Scrutiny Board at the time of adoption of the Commission initiative.

14.      The [Parliament] and the Council, upon considering Commission legislative proposals, will take full account of the Commission’s impact assessments. To that end, impact assessments shall be presented in such a way as to facilitate the consideration by the [Parliament] and the Council of the choices made by the Commission.

15.      The [Parliament] and the Council will, when they consider this to be appropriate and necessary for the legislative process, carry out impact assessments in relation to their substantial amendments to the Commission’s proposal. The [Parliament] and the Council will, as a general rule, take the Commission’s impact assessment as the starting point for their further work. The definition of a “substantial” amendment should be for the respective Institution to determine.

16.      The Commission may, on its own initiative or upon invitation by the [Parliament] or the Council, complement its own impact assessment or undertake other analytical work it considers necessary. When doing so, the Commission will take into account all available information, the stage reached in the legislative process and the need to avoid undue delays in that process. The co-legislators will take full account of any additional elements provided by the Commission in that context.’

 Forms of order sought and procedure before the Court of Justice

28      The Republic of Poland asks the Court to:

–        annul the contested directive in its entirety; and

–        order the Parliament and the Council to pay the costs.

29      The Parliament contends that the Court should:

–        dismiss the action; and

–        order the Republic of Poland to pay the costs.

30      The Council asks the Court to:

–        dismiss the action in its entirety as unfounded; and

–        order the Republic of Poland to pay the costs.

31      By decision of the President of the Court of 12 April 2024, Hungary was granted leave to intervene in support of the form of order sought by the Republic of Poland.

32      By decision of the President of the Court of 17 April 2024, the Commission was granted leave to intervene in support of the form of order sought by the Parliament and the Council.

 The action

33      In support of its action, the Republic of Poland relies on two pleas in law, alleging an infringement, first, of point (c) of the first subparagraph of Article 192(2) TFEU, read in conjunction with the second subparagraph of Article 194(2) TFEU, and, second, of the principle of proportionality, referred to in Article 5(4) TEU, read in conjunction with Article 296 and Article 191(3) TFEU.

 First plea in law: infringement of point (c) of the first subparagraph of Article 192(2) TFEU, read in conjunction with the second subparagraph of Article 194(2) TFEU

 Arguments of the parties

34      By its first plea in law, the Republic of Poland, supported by Hungary, alleges that, by adopting the contested directive on the basis of Article 194(2) TFEU, the EU legislature infringed point (c) of the first subparagraph of Article 192(2) TFEU.

35      The Republic of Poland submits that the wording of the second subparagraph of Article 194(2) TFEU indicates that measures adopted pursuant to that provision are not to affect a Member State’s right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, without prejudice to point (c) of the first subparagraph of Article 192(2) TFEU. Hence, where measures adopted at EU level are liable to affect a Member State’s right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, it is appropriate for those measures to be adopted on the basis of point (c) of the first subparagraph of Article 192(2) TFEU.

36      The Republic of Poland submits that the gradual application of criteria characterising efficient district heating or cooling systems, provided for in Article 26(1) of the contested directive, combined with that of the criteria laid down in Annex III to that directive for the definition of high-efficiency cogeneration, would limit the role of the cogeneration using fossil fuels and increase the share of renewable energy in the supply of those systems, whilst having an effect on the energy mix of the Member States. The Republic of Poland adds that, while Article 26(2) permits Member States to choose, in the place of the criteria set out in Article 26(1), sustainability performance criteria based on the amount of greenhouse gas emissions from the district heating and cooling system per unit of heat or cold delivered to the customers, those other criteria are indirectly linked to the structure of the fuel of the urban heating system concerned, with the result that those criteria also imply the phasing out of fossil fuels in favour of renewable energy or waste heat sources.

37      The Republic of Poland submits, in particular, that the condition relating to the authorised level of direct CO2 emissions from cogeneration production from fossil fuels would result, after 2034, or earlier in the absence of the notification of an appropriate plan, in district heating systems relying on coal-fired power stations losing their status of efficient heating systems. The ceiling placed on authorised CO2 emissions, as a criterion of high-efficiency cogeneration, thus constitutes a direct interference in the energy mix of Member States. It determines the type of fuel that may be used by excluding coal, whilst cogeneration will be perceived as the most efficient production technology. The modification imposed on the combination of fuels will thus affect more than 60% of the heating supplied to Polish customers.

38      The Republic of Poland also stresses the limits of the technology making possible the process of energy transformation of district heating systems, including the use of biomass, as well as the significance of the high costs generated by the contested directive due to the succession of very short deadlines relating to the implementation of the conditions for the grant of the status of efficient heating system, within the meaning of that directive.

39      It follows that there is a real risk of delay, or even a stop, in the transition to achieving climate neutrality, due to the lack of financial means and owing to the limitations in the material or the restrictions imposed on certain energy sources. The solutions adopted by the EU legislature are likely to lead to numerous company bankruptcies in the heating sector. Ultimately it will be end customers who will bear the vast costs of transition, including the stranded costs, which carries the risk of leading to social unrest.

40      Consequently, given that the contested directive significantly affects its choice between difference energy sources and the general structure of its energy supply, it should have been adopted on the basis of point (c) of the first subparagraph of Article 192(2) TFEU.

41      In response to the Commission’s arguments, the Republic of Poland submits, first of all, that the application of point (c) of the first subparagraph of Article 192(2) TFEU depends on the effects of the act concerned and that, to that end, it is necessary to take account of the effects of that act. Furthermore, since that provision expressly refers to the effect of the act as a criterion for its application, it would be contra legem to replace that criterion with that of the aim and content of the act.

42      Next, it considers that while the contested directive repeals and replaces Directive 2012/27, which was adopted on the basis of Article 194(2) TFEU, it cannot be inferred from this that the amending act must rest on the same legal basis as the amended act, all the more so since Directive 2012/27 and the contested directive, the latter carrying out a recast of the former, were adopted in different political, economic and legal circumstances.

43      Finally, the twofold aim of the contested directive, namely, first, the implementation of the European Climate Law adopted on the basis of Article 192(1) TFEU which clearly pursues an environmental objective, and, second, the reduction of the European Union’s dependency on energy imports, notably fossil fuels, supports the argument that point (c) of the first subparagraph of Article 192(2) TFEU should have been the legal basis for the adoption of the contested directive.

44      The Parliament and the Council, supported by the Commission, contend that the first plea in law must be rejected as unfounded.

 Findings of the Court

45      By its first plea, the Republic of Poland submits, in essence, that the contested directive should have been adopted on the basis of point (c) of the first subparagraph of Article 192(2) TFEU and not on the basis of the first subparagraph of Article 194(2) TFEU.

46      In that regard, it should first be recalled that the choice of the legal basis for a measure may not depend simply on an institution’s conviction as to the aim pursued but must rest on objective factors which are amenable to judicial review, such as the aim and content of the measure itself (see, to that effect, judgments of 26 March 1987, Commission v Council, 45/86, EU:C:1987:163, paragraph 11; of 29 April 2004, Commission v Council, C‑338/01, EU:C:2004:253, paragraph 54; and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, paragraph 121).

47      Furthermore, if the choice of the legal basis for a legislative measure depended on the assessment of its likely effects, which, by its nature, is speculative, only an ex post analysis would make it possible to ascertain the real and specific effects of such a measure. That assessment cannot therefore in any way constitute an objective factor amenable to judicial review (see, to that effect, judgment of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraph 41).

48      In that regard it is also settled case-law that the legality of an EU act cannot depend on retrospective considerations of its efficacy (judgments of 7 February 1973, Schroeder, 40/72, EU:C:1973:14, paragraph 14; of 5 October 1994, Crispoltoni and Others, C‑133/93, C‑300/93 and C‑362/93, EU:C:1994:364, paragraph 43; and of 12 July 2001, Jippes and Others, C‑189/01, EU:C:2001:420, paragraph 84).

49      It follows that the assessment of the expected effect of an EU act may be taken into consideration only in the context of the assessment of the aim or content of that act (see, to that effect, judgment of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraph 42).

50      Second, the choice of the legal basis for a measure may also be based on its context, provided that that context is capable of shedding light on the objective pursued by that measure (see, to that effect, judgments of 27 February 2014, United Kingdom v Council, C‑656/11, EU:C:2014:97, paragraph 50; of 3 December 2019, Czech Republic v Parliament and Council, C‑482/17, EU:C:2019:1035, paragraph 32; of 8 December 2020, Hungary v Parliament and Council, C‑620/18, EU:C:2020:1001, paragraph 39; and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, paragraph 122).

51      In that regard, a distinction must be drawn between an act analogous to a pre-existing act and an act which amends a pre-existing act. It is clear from the case-law that the legal basis for a measure must be determined autonomously, having regard to its own aim and content, and not to the legal basis used for the adoption of other EU measures that might, in certain cases, display similar characteristics (judgments of 10 January 2006, Commission v Parliament and Council, C‑178/03, EU:C:2006:4, paragraph 55, and of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraph 49). By contrast, in the case of a measure amending existing rules, it is important to take into account, for the purposes of identifying the legal basis for that measure, the existing rules which it amends and, in particular, their objective and content (judgments of 3 December 2019, Czech Republic v Parliament and Council, C‑482/17, EU:C:2019:1035, paragraph 42, and of 8 December 2020, Hungary v Parliament and Council, C‑620/18, EU:C:2020:1001, paragraph 40).

52      Third, if examination of an EU measure reveals that it pursues several purposes or that it comprises several components and if one of those purposes or components is identifiable as the main or predominant purpose or component, whereas the others are merely incidental or are only extremely limited in scope, the legal basis for adopting that measure must be determined in accordance with that main purpose or component (see, to that effect, judgments of 23 February 1999, Parliament v Council, C‑42/97, EU:C:1999:81, paragraphs 39 and 40; of 8 December 2020, Hungary v Parliament and Council, C‑620/18, EU:C:2020:1001, paragraph 38; and of 21 March 2024, Landeshauptstadt Wiesbaden, C‑61/22, EU:C:2024:251, paragraph 47). In addition, recourse to dual legal bases is not possible where the procedures laid down for each legal basis are incompatible with each other (see, to that effect, judgments of 11 June 1991, Commission v Council, C‑300/89, EU:C:1991:244, paragraph 21; of 25 February 1999, Parliament v Council, C‑164/97 and C‑165/97, EU:C:1999:99, paragraph 14; and of 6 November 2008, Parliament v Council, C‑155/07, EU:C:2008:605, paragraph 37).

53      In that regard, it must be observed that, as regards the European Union’s competence in the field of energy, Article 194 TFEU lists, in paragraph 1, amongst the objectives pursued in that field, the promotion of ‘energy efficiency and energy saving’. Article 194 TFEU states, in paragraph 2, that the EU legislature is to adopt the necessary measures to achieve those objectives on the basis of the ordinary legislative procedure, without prejudice to point (c) of the first subparagraph of Article 192(2) TFEU. That latter provision provides, by way of exception from Article 192(1) TFEU, for the application of a special legislative procedure in which the Council is to act unanimously after consulting, inter alia, the Parliament.

54      In accordance with the principle set out in paragraph 52 of the present judgment, since Article 194(2) TFEU and point (c) of the first subparagraph of Article 192(2) TFEU provide for two incompatible legislative procedures, they cannot be applied together. Furthermore, since the procedure provided for under that latter provision constitutes an exception to the general rule set out in the first subparagraph of Article 194(2) TFEU, it cannot be interpreted broadly as that would risk having the effect of turning recourse to the special legislative procedure into the general rule, whereas the FEU Treaty intended it to be an exception (see, by analogy, judgment of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraphs 43 to 45).

55      It follows that, in accordance with the principle that exceptions must be interpreted strictly, point (c) of the first subparagraph of Article 192(2) TFEU can form the legal basis of an EU measure only if it follows from the aim and content of that measure that the primary outcome sought by that measure is significantly to affect a Member State’s choice between different energy sources and the general structure of the energy supply of that Member State (judgment of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraph 46).

56      In the present case, as regards, in the first place, the context of the contested directive, it should be noted that that directive recasts Directive 2012/27. That directive has been amended several times and the contested directive makes further amendments to it. In those circumstances, it must be held that Directive 2012/27 forms the legal context of the contested directive. Accordingly, it is necessary, in accordance with the case-law referred to in paragraph 51 of the present judgment, to identify the legal basis on which the contested directive had to be adopted, taking into account both the context constituted by Directive 2012/27 and the legislation resulting from the amendments made to it by the contested directive.

57      In that regard, it must be observed, first of all, that recital 10 of Directive 2012/27 stated that ‘it [was] necessary to update the Union’s legal framework for energy efficiency with a Directive pursuing the overall objective of the energy efficiency target of saving 20% of the Union’s primary energy consumption by 2020, and of making further energy efficiency improvements after 2020’.

58      Next, recitals 6 and 45 of Directive 2018/2002, which amended Directive 2012/27, stated, respectively, that ‘the need for the Union to achieve its energy efficiency targets at Union level, expressed in primary and/or final energy consumption, should be clearly set out in the form of a target of at least 32.5% for 2030’ and that that directive sought to ‘achieve the Union’s energy efficiency targets of 20% by 2020 and of at least 32.5% by 2030 and to pave the way towards further energy efficiency improvements beyond those dates’.

59      Finally, the Union legislature stated, in recital 28 of the contested directive, that ‘the ambition of the Union’s 2030 energy efficiency target is set compared to the 2020 EU Reference Scenario projections for 2030’, while specifying that ‘the Union will need to further increase its energy efficiency ambition by at least 11.7% in 2030 compared to the level of efforts under the 2020 EU Reference Scenario’.

60      It follows that the contested directive, which seeks to achieve the objective of increasing energy efficiency in the European Union, is in line with Directives 2012/27 and 2018/2002.

61      A comparison of Article 1 of the contested directive and Article 1 of Directive 2012/27, as amended by Directive 2018/2002, confirms that finding. While the first of those provisions, entitled ‘Subject matter and scope’, states that the contested directive ‘establishes a common framework of measures to promote energy efficiency within the Union in order to ensure that the Union’s targets on energy efficiency are met and enables further energy efficiency improvements’, Article 1(1) of Directive 2012/27, as amended by Directive 2018/2002, had already established ‘a common framework of measures to promote energy efficiency within the Union in order to ensure that the Union’s 2020 headline targets on energy efficiency of 20% and its 2030 headline targets on energy efficiency of at least 32.5% are met [by paving] the way for further energy efficiency improvements beyond those dates’.

62      In the second place, as regards the objective of the contested directive, it is apparent from Article 1 thereof that, while seeking to promote energy efficiency in the European Union, the common framework which it establishes also aims to contribute to the implementation of the European Climate Law and to the security of energy supply in the European Union by reducing its dependence on imports of energy, including fossil fuels.

63      Furthermore, recitals 7 to 9, 14, 15, 24, 28 and 152 of the contested directive demonstrate that that directive pursues the same objective as Directive 2012/27, as amended by Directive 2018/2002, namely to increase energy efficiency in the European Union, while contributing to the achievement of the objectives of the Paris Agreement and reducing net greenhouse gas emissions by 2030 compared to levels achieved in 1990.

64      First of all, like recital 10 of Directive 2012/27 and recital 45 of Directive 2018/2002, recital 152 of the contested directive states that the objective of that directive is to achieve the European Union’s objective of increasing energy efficiency and pave the way towards further energy efficiency improvements. In addition, recital 24 of that directive emphasises that it is part of a broader policy framework of energy efficiency policies addressing energy efficiency potentials in specific policy areas.

65      Next, in the same way as it was apparent from recital 5 of Directive 2018/2002 that the amendment of Directive 2012/27 was needed in order to adapt it to the 2030 perspective, recital 28 of the contested directive states, in essence, that the updated 2020 EU Reference Scenario means that the European Union will need to further increase its energy efficiency ambition by 2030. In that regard, recital 14 of that directive states that the higher level of ambition in terms of energy efficiency requires a stronger promotion of cost-effective energy efficiency measures in all areas of the energy system.

66      Lastly, recital 1 of Directive 2018/2002 stated, in essence, that improving energy efficiency throughout the full energy chain would benefit the environment, improve air quality and public health, reduce greenhouse gas emissions, and improve energy security, which would, in particular, be in line with the commitments made by the European Union under the Paris Agreement. Similarly, recitals 14 and 15 of the contested directive state that improving energy efficiency is part of the European Union’s commitments under the Paris Agreement, and that that directive is ‘a step forward towards climate neutrality by 2050’. In the same context, recitals 7 to 9 of that directive state that ‘energy efficiency is a key area of action, without which the full decarbonisation of the Union’s economy cannot be achieved’, that ‘to achieve the increased climate ambition, energy efficiency improvements will need to be significantly raised from the [previous] level’ and that ‘an increase in the Union’s 2030 energy efficiency target can … be crucial in reducing [greenhouse gas] emissions’.

67      Those objectives are reflected, in the third place, in the content of that directive, in the specific obligations relating to energy efficiency and energy saving.

68      Accordingly, Article 4(1) of the contested directive requires Member States, first, to ensure collectively a reduction of energy consumption of at least 11.7% in 2030 compared to the projections of the 2020 EU Reference Scenario, so that the final energy consumption of the European Union does not exceed 763 Mtoe and, second, to make efforts to contribute, collectively, to the achievement of the European Union’s indicative primary energy consumption target, which is not to exceed 992.5 Mtoe in 2030.

69      In that area of energy efficiency, the EU legislature also intended to confer a leading role on the public sector by imposing on Member States, in Article 5(1) of that directive, the obligation, which is also quantified, of ensuring that the total final energy consumption of all public bodies combined is reduced by at least 1.9% each year, compared to 2021, to which Article 5(2) and (3) lays down certain transitional derogations.

70      Second, Article 8(1)(b) of the contested directive provides, for four consecutive periods between 2021 and 2030, that Member States are to achieve cumulative end-use energy savings at least equivalent to new annual savings for each of those periods of 0.8%, 1.3%, 1.5% and 1.9% of annual final energy consumption, respectively, averaged over the most recent three years prior to 1 January 2019.

71      It follows from paragraphs 57 to 69 of the present judgment that the provisions of the contested directive are not, in themselves and primarily, intended to lay down measures significantly affecting a Member State’s choice between different energy sources and the general structure of its energy supply. Their primary aim is to increase energy efficiency in the European Union, which is one of the objectives of the European Union’s energy policy referred to in Article 194(1) TFEU, and they have, at most, only indirect and incidental effects on the general structure of energy supply in the Member States (see, by analogy, judgment of 23 February 1999, Parliament v Council, C‑42/97, EU:C:1999:81, paragraph 63).

72      In accordance with the principle that exceptions must be interpreted strictly and as has been recalled in paragraph 55 of the present judgment, point (c) of the first subparagraph of Article 192(2) TFEU can form the legal basis of an EU measure only if it follows from its aim and content that the primary outcome sought by that measure is significantly to affect a Member State’s choice between different energy sources and the general structure of its energy supply.

73      In that regard, the argument based on the twofold aim of the contested directive, relied on by the Republic of Poland, is irrelevant. As the Council has pointed out, the mere fact that energy efficiency and energy savings may contribute to the achievement of the European Union’s climate objectives does not alter the ‘nature’ of that directive, which remains a measure of EU energy policy, and not an environmental policy measure.

74      The same applies to the arguments of the Republic of Poland, which focus primarily on Article 26 of the contested directive. That provision sets out the criteria to be met by the supply of heating and cooling in order to be classified as an ‘efficient district heating and cooling system’ and, on that basis, to be able to ensure more effective primary energy consumption. Besides the fact that the Republic of Poland itself acknowledges in its application that the status of ‘efficient district heating system’ is not mandatory, that provision does not call into question the conclusion, made in paragraph 71 of the present judgment, that the provisions of the contested directive, taken as a whole, in themselves and primarily, are not intended to lay down measures significantly affecting a Member State’s choice between different energy sources and the general structure of its energy supply.

75      Lastly, as regards the allegation of the negative social repercussions to which the contested directive would give rise, it must be held that that allegation is not substantiated. In any event, it is clear from that directive that the EU legislature took steps to ensure that the implementation of that directive did not adversely affect people affected by energy poverty, vulnerable customers, low-income households or people living in social housing.

76      First, Article 8(3) of the contested directive expressly requires Member States to implement energy efficiency obligation schemes, alternative public policy measures, or a combination of both, or yet programmes or measures financed under an energy efficiency national fund, in favour of those persons. Second, Article 24 of that directive, which is expressly dedicated to the protection of those persons and the reduction of energy poverty, sets out a series of measures that Member States must take in favour of those persons, such as, inter alia, fiscal measures, but also the use of public funds available at EU and national level, including, where applicable, the financial contribution that Member States receive from the Social Climate Fund in accordance with Regulation 2023/955, as well as revenues from allowance auctions in the context of emissions trading under the EU greenhouse gas emission allowance trading scheme, in accordance with Directive 2003/87.

77      As to the remainder, the arguments put forward by the Republic of Poland in the context of the first plea overlap with those, put forward in the context of the second plea, alleging a breach of the principle of proportionality, and are ineffective to that extent. Even assuming that the contested directive infringes the principle of proportionality, such a breach of that principle cannot call into question the choice of legal basis for the adoption of that directive.

78      Having regard to the foregoing considerations, it must be held that the contested directive could not have been adopted on the basis of point (c) of the first subparagraph of Article 192(2) TFEU and that the Parliament and the Council were correct in law to adopt the contested directive on the basis of Article 194(2) TFEU.

79      Consequently, the first plea in law must be rejected as being unfounded.

 Second plea in law: breach of the principle of proportionality, guaranteed by Article 5(4) TEU, read in conjunction with 296 TFEU and Article 191(3) TFEU

80      By its second plea in law, the Republic of Poland submits that, by the adoption of the contested directive, the Parliament and the Council infringed the principle of proportionality, guaranteed by Article 5(4) TEU, read in conjunction with Article 296 TFEU and Article 191(3) TFEU.

81      This plea is divided into three parts, alleging, first, infringement of the obligation to carry out a sufficient and detailed impact assessment of the contested directive before its adoption, second, that that directive was inappropriate in relation to the objectives which those institutions intended to pursue by the adoption of that directive, and, third, failure to take into account the specific situation of the Member States at the time of the adoption of that directive.

 The first part

–       Arguments of the parties

82      By the first part of the second plea, the Republic of Poland, supported by Hungary, submits, in the first place, that, in the Commission Staff Working Document of 14 July 2021, entitled ‘Impact Assessment Report accompanying the Proposal for a Directive of the European Parliament and of the Council on energy efficiency’ (‘the impact assessment’), the Commission did not examine in a sufficient and detailed manner the impact of the provisions of the contested directive before its adoption, even though that directive imposes new obligations which were impossible to fulfil within the prescribed period.

83      By the adoption of the contested directive, the EU legislature infringed, first, Article 5 of Protocol (No 2) on the application of the principles of subsidiarity and proportionality, annexed to the EU Treaty and to the FEU Treaty, in that it did not properly analyse the effects to which that directive would give rise; second, the second paragraph of Article 296 TFEU, which provides that legal acts are to state the reasons on which they are based and are to refer to the proposals, initiatives, recommendations, requests or opinions provided for in the Treaties, that obligation being clarified, in respect of the principle of proportionality, by the provisions of Article 5 of Protocol (No 2); and, third, Article 191(3) TFEU, which provides that, in preparing its policy on the environment, the European Union is required to take account of available scientific and technical data, environmental conditions in the various regions of the European Union, the potential benefits and costs of action or lack of action, the economic and social development of the European Union as a whole and the balanced development of its regions.

84      The Republic of Poland raises the issue, in particular, of the failure to update the data contained in the impact assessment in the light of developments which took place during the legislative process. It states, in particular, that the data which the co-legislators took into account related to the general energy efficiency target of the European Union, which was initially fixed at 9%, and not 11.7%, at which it was finally fixed in Article 4(1) of that directive.

85      In addition, the impact assessment did not allow account to be taken of the raising of the level of ambition for energy savings obligations, provided for in Article 8 of that directive.

86      In the second place, the Republic of Poland submits that the Commission should have presented a detailed analysis of the impact of the contested directive on the situation of each Member State, in particular as regards the economic and financial consequences for heating undertakings and their customers.

87      As regards the Commission’s assertion that, in accordance with point 16 of the Agreement on better law-making, the Commission is not required to update the data on the basis of which the act concerned was adopted, the Republic of Poland submits that that statement confirms that the principle of proportionality was infringed by the adoption of the contested directive.

88      The Parliament and the Council, supported by the Commission, contend that the second plea in law must be rejected as unfounded.

–       Findings of the Court

89      As a preliminary point, it should be noted that the first paragraph of Article 5(4) TEU provides that, under the principle of proportionality, the content and form of EU action is not to exceed what is necessary to achieve the objectives of the Treaties.

90      That principle requires that measures implemented through provisions of EU law should be appropriate for attaining the legitimate objectives pursued by the legislation concerned and that they should not go beyond what is necessary to achieve those objectives. Thus, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgments of 13 November 1990, Fedesa and Others, C‑331/88, EU:C:1990:391, paragraph 13; of 13 March 2019, Poland v Parliament and Council, C‑128/17, EU:C:2019:194, paragraph 94; and of 3 December 2019, Czech Republic v Parliament and Council, C‑482/17, EU:C:2019:1035, paragraph 76).

91      With regard to judicial review of compliance with that principle, the Court has accepted that, in the exercise of the powers conferred on it, the EU legislature must be allowed a broad discretion in areas in which its action involves political, economic or social choices and in which it is called upon to undertake complex assessments and evaluations, a fortiori where they are evolving in nature. That broad discretion of the EU legislature applies to the determination of the nature and scope of the measures which it adopts and, to some extent, to the finding of the basic facts (see, to that effect, judgments of 8 July 2010, Afton Chemical, C‑343/09, EU:C:2010:419, paragraphs 28, 33 and 46; of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraphs 150, 151 and 170; and of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package), C‑541/20 to C‑555/20, EU:C:2024:818, paragraphs 219 and 242).

92      Consequently, the legality of a measure adopted in one of those areas can be affected only if the measure is manifestly inappropriate having regard to the objective which those institutions are seeking to pursue. Therefore, the question is not whether a measure adopted in such an area was the only or the best possible measure, since the EU judicature cannot substitute its assessment of scientific and technical facts for that of the EU legislature upon which the Treaties have conferred that task (see, to that effect, judgments of 12 July 2001, Jippes and Others, C‑189/01, EU:C:2001:420, paragraphs 82 and 83, and of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package), C‑541/20 to C‑555/20, EU:C:2024:818, paragraph 242).

93      However, even where it has broad discretion, the EU legislature is required to base its choice on objective criteria and examine whether the aims pursued by the measure chosen are such as to justify even substantial negative economic consequences for certain operators. The EU institutions which have adopted the act in question must therefore be able to show before the Court that in adopting that act they actually exercised their discretion, which presupposes that consideration was taken of all the relevant factors and circumstances of the situation the act was intended to regulate. It follows that those institutions must at the very least be able to produce and set out clearly and unequivocally the basic facts which had to be taken into account as the basis of the contested measures of that act and on which the exercise of their discretion depended. In that regard, the validity of an EU measure must be assessed in the light of the information available to the EU legislature at the time of the adoption of the legislation in question and cannot depend on retrospective considerations concerning its efficacy (see, to that effect, judgments of 7 February 1973, Schroeder, 40/72, EU:C:1973:14, paragraph 14; of 12 July 2001, Jippes and Others, C‑189/01, EU:C:2001:420, paragraph 84; and of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraphs 152 and 153).

94      As regards those basic facts, it must be borne in mind that the form that they take is irrelevant. The EU legislature may take into account not only an impact assessment, such as that at issue in the present case, but also any other source of information (judgments of 13 March 2019, Poland v Parliament and Council, C‑128/17, EU:C:2019:194, paragraph 31, and of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package), C‑541/20 to C‑555/20, EU:C:2024:818, paragraph 220).

95      Thus, the Court has held that it does not follow from the wording of points 12 to 15 of the Agreement on better law-making that there is an obligation to carry out an impact assessment in all circumstances. Although point 14 of that agreement provides that, upon considering Commission legislative proposals, the Parliament and the Council must take full account of the Commission’s impact assessments, that agreement states, in point 12, that such assessments ‘are a tool to help the three Institutions reach well-informed decisions and not a substitute for political decisions within the democratic decision-making process’. Consequently, while the Parliament and the Council are required to take account of the Commission’s impact assessments, the content of such assessments is not binding on them, in particular as regards the evaluations contained therein (judgment of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package), C‑541/20 to C‑555/20, EU:C:2024:818, paragraphs 221 and 222).

96      Thus, the mere fact that by adopting the contested directive the EU legislature adopted a different and, as the case may be, more onerous measure than that recommended in the impact assessment is not such as to demonstrate that it exceeded the limits of what was necessary to achieve the stated objective. Similarly, where the EU legislature amends substantial elements of the proposal submitted by the Commission, point 15 of the Agreement on better law-making does not impose any firm obligation on that legislature to carry out an update of the Commission’s impact assessment, since point 15 provides only for the possibility of such an update where the Parliament and the Council ‘consider this to be appropriate and necessary for the legislative process’ (see, to that effect, judgment of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package), C‑541/20 to C‑555/20, EU:C:2024:818, paragraphs 223 and 224).

97      It follows that, although the preparation of impact assessments is a step in the legislative process that, as a rule, must take place if a legislative initiative is liable to have a significant economic, environmental or social impact, the omission of such an impact assessment, and therefore, a fortiori, the lack of an update to it, cannot, however, be classified as a breach of the principle of proportionality where the EU legislature is in a particular situation requiring that an impact assessment be dispensed with and has sufficient information enabling it to assess the proportionality of an adopted measure (see, to that effect, judgment of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package), C‑541/20 to C‑555/20, EU:C:2024:818, paragraph 225).

98      In that regard, in order to exercise its discretion correctly, the EU legislature may also be required to take into account, during the legislative procedure, the available scientific data and other findings that became available, including scientific documents used by the Member States during Council meetings that the Council does not have itself. The EU legislature may also take into account information which is in the public domain and which is accessible to any individual or undertaking concerned (judgment of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package), C‑541/20 to C‑555/20, EU:C:2024:818, paragraph 226).

99      Furthermore, the EU legislature does not have to take into consideration the particular situation of a Member State where the EU measure concerned has an impact in all Member States and requires that a balance between the different interests involved is ensured, taking account of the objectives of that measure. Therefore, the attempt to strike such a balance taking into account not the particular situation of a single Member State but that of all the Member States of the European Union cannot, in itself, be regarded as contrary to the principle of proportionality (judgments of 18 June 2015, Estonia v Parliament and Council, C‑508/13, EU:C:2015:403, paragraph 39; of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraph 167; and of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package), C‑541/20 to C‑555/20, EU:C:2024:818, paragraph 246).

100    It is in the light of those considerations that the first part of the second plea in law must be examined.

101    In the first place, as regards the Republic of Poland’s arguments that the basic facts set out in the impact assessment were not sufficient or sufficiently detailed and were not updated in the light of developments during the legislative process, in particular as regards the increases in the energy efficiency and energy savings objectives fixed in Article 4 and Article 8 of the contested directive respectively, it must be pointed out that that impact assessment is not the only source of information taken into account by the EU legislature as the basis for the contested measures.

102    The Parliament relies, as other sources of information, first, on the impact assessment accompanying the Communication COM(2020) 562 final, of 17 September 2020, from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, entitled ‘Stepping up Europe’s 2030 climate ambition’, second, on the public hearing organised by the Parliament of 9 November 2021 on the energy aspects of the ‘Fit for 55’ legislative package (a comprehensive set of mutually reinforcing measures and initiatives aimed at achieving climate neutrality in the European Union by 2050, announced in the Communication from the Commission of 19 October 2020 entitled ‘Commission Work Programme 2021 – A Union of vitality in a world of fragility’), relating to the revision of Directive 2012/27, and, third, the briefings prepared by the Parliament’s research services, which analysed various sources of information relating to the Commission’s legislative proposal and the subject matter of the contested directive.

103    As regards the Council, that institution refers, first, to a Commission document of 17 December 2021, entitled ‘Proposal for a recast of the Energy Efficiency Directive – The energy efficiency target, its interlinkages with the other targets of the “Fit for 55” package and the role of Article 8’, and, second, the Commission proposal COM(2022) 222 final, of 18 May 2022, for a Directive of the European Parliament and of the Council amending Directive (EU) 2018/2001 on the promotion of the use of energy from renewable sources, Directive 2010/31/EU on the energy performance of buildings and Directive 2012/27/EU on energy efficiency.

104    It must be observed, first of all, that the latter proposal for a directive already had the purpose of amending Directive 2012/27, by providing, in Article 3 thereof, that ‘Member States shall collectively ensure a reduction of energy consumption of at least 13% in 2030 compared to the projections of the 2020 Reference Scenario so that the Union’s final energy consumption amounts to no more than 750 Mtoe and the Union’s primary energy consumption amounts to no more than 980 Mtoe in 2030.’ It follows that, in the contested directive, those figures were only slightly increased, reaching 763 Mtoe and 992.5 Mtoe respectively.

105    It is also stated in the reasons for that proposal for a directive that ‘the current international tensions following Russia’s invasion of Ukraine … and the very high energy prices have exacerbated the need to accelerate energy efficiency’, which demonstrates that the developments in the geopolitical context were taken into account by the EU co-legislators in the context of the adoption of the contested directive.

106    Next, the Commission document, sent by the Council to the various delegations of the Member States and referred to in paragraph 103 of the present judgment, stated that the modelling results for all policy scenarios linked to the climate target plan showed that all energy efficiency efforts needed to be intensified at the level of 36% to 37% for final energy and 39% to 41% for primary energy consumption compared to the 2007 Reference Scenario, to allow the European Union to achieve the 55% reduction in greenhouse gas emissions by 2030 in a cost-effective way.

107    Lastly, the information which emerges from the documents referred to in the four preceding paragraphs of the present judgment is reflected faithfully in recitals 27 and 28 of the contested directive. The Republic of Poland does not in any way call into question the relevance of those documents or how the information contained in those documents corresponds to the content of recitals 27 and 28.

108    Moreover, although, before the Court, the Parliament and the Council have submitted documents capable of proving that, in the context of the legislative procedure relating to the adoption of the contested directive, they based their policy choices not only on the impact assessment, but also on other sources of information, the Republic of Poland does not dispute that those other sources of information made it possible for the co-legislators to adopt a well-informed decision. Furthermore, that Member State does not allege that, since data drawn from sources of information other than those resulting from the impact assessment were taken into account, those co-legislators exceeded the limits of their broad discretion when adopting the contested directive or made policy choices which were manifestly inappropriate in relation to the objectives pursued by that directive.

109    In those circumstances, it must be held that, in order to exercise their discretion effectively and to make their policy choices during the legislative procedure for the adoption of the contested directive, the EU co-legislators relied not only on the impact assessment, but also on other sources of information, which made it possible for them to take into account basic facts that were sufficient, detailed and up to date.

110    As regards, specifically, the increases during the legislative process of the energy efficiency and energy savings targets, fixed in Article 4 and Article 8 of the contested directive, respectively, it should be recalled that, as stated in paragraph 96 of the present judgment, the mere fact that the EU legislature was able to adopt a more ambitious measure than that recommended in the impact assessment is not capable of demonstrating that it exceeded the limits of what was necessary in order to achieve the objective pursued. Likewise, the changes in certain substantive elements of the Commission’s legislative proposal does not give rise to an obligation to update the impact assessment carried out by that institution.

111    Consequently, the Republic of Poland’s arguments, which seek to demonstrate that the impact assessment was not sufficient or detailed and that the information in that impact assessment did not reflect the developments that took place during the legislative process, must be rejected.

112    In the second place, as regards the Republic of Poland’s arguments by which it submits that the impact assessment did not contain an analysis of the impact of the contested directive on the situation of each Member State and, in particular, that it did not take into account the economic and financial consequences of that directive for heating undertakings and their customers in Poland, it should be noted that the objectives set out in that directive are to be pursued by the Member States collectively. Articles 4 and 8 of that directive define, respectively, the energy efficiency targets which the ‘Member States shall collectively ensure’ are achieved, and the ‘cumulative … energy savings’ targets which those Member States must achieve.

113    As has been recalled in paragraph 99 of the present judgment, the EU legislature does not have to take into consideration the particular situation of a Member State where the EU measure concerned has an impact in all Member States and requires that a balance between the different interests involved be ensured, taking account of the objectives of that measure. Therefore, the attempt to strike such a balance, which takes into account not the particular situation of a single Member State but that of all EU Member States, cannot in itself be regarded as being contrary to the principle of proportionality.

114    In those circumstances, the first part of the second plea in law must be rejected as unfounded.

 The second part

–       Arguments of the parties

115    By the second part of the second plea in law, the Republic of Poland, supported by Hungary, submits that the contested directive sets unrealistic targets and must, therefore, be regarded as inappropriate for attaining the objectives pursued by the EU legislature.

116    Article 4 of that directive imposes on Member States new energy efficiency obligations, which are impossible to fulfil within the time limits laid down in that provision. In any event, meeting those targets would involve excessive investment and administrative costs. The Republic of Poland takes the view that the targets set out in Article 4 should be achieved over a longer period than that provided for, namely a period between 2023 and 2030, in order not to expose the Member States to negative macroeconomic consequences.

117    In the context of its arguments relating to Article 4 of the contested directive, the Republic of Poland explains that, in Poland, final energy consumption and primary energy consumption increased in the years 2012 to 2021 by 1.73% and by 1.27%, respectively, whereas under Article 4 of, and Annex I to, that directive an average annual decline of 2.89% and 3.26% respectively is required in that regard for the years 2021 to 2030. Following the increase in energy consumption in the years 2012 to 2021, such a shift in the trend for the years 2022 to 2030 is impossible, in the light, in particular, of the growth in the GDP of Poland, which, over the latter period, is likely to range between 0.7% and 3% annually.

118    In addition, the Republic of Poland considers that it is unrealistic to require it to implement the obligation, laid down in Article 12 of the contested directive, requiring Member States to ensure that national data centres transfer information on their parameters to the European database on data centres set up by the Commission, since that institution delayed in adopting the appropriate delegated act specifying the scope of the information to be communicated and to create such a European database.

119    The Parliament and the Council, supported by the Commission, contend that the second part of the second plea in law must be rejected as unfounded.

–       Findings of the Court

120    As has been recalled in paragraphs 91 and 92 of the present judgment, in areas in which its action involves political, economic or social choices and in which it is called upon to undertake complex assessments and evaluations, the EU legislature has a broad discretion. Consequently, the legality of a measure adopted in such areas does not depend on whether it was the only or the best possible measure. The legality of such a measure can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institutions are seeking to pursue.

121    In the first place, it must be observed that Article 4 of the contested directive, read in the light of recital 30 thereof, defines the common energy consumption reduction target to be achieved by the Member States, without directly providing for individual binding targets for each Member State.

122    Under Article 4(1) of that directive, Member States are collectively to ensure a reduction of energy consumption by at least 11.7% in 2030 compared to the projections of the 2020 EU Reference Scenario so that the European Union’s final energy consumption does not exceed 763 Mtoe, and to make efforts to collectively contribute to the indicative EU primary energy consumption target amounting to no more than 992.5 Mtoe in 2030.

123    In the same vein, under Article 4(2) of that directive, each Member State is to set an indicative national energy efficiency contribution based on final energy consumption to meet, collectively, the European Union’s binding final energy consumption target and to make efforts to contribute collectively to meeting the indicative primary energy consumption target referred to in Article 4(1). Article 4(2) also provides that each Member State is to notify its contribution to the Commission, together with an indicative trajectory for that contribution.

124    It is true that the Member States do not have complete freedom in the setting of their indicative national energy efficiency contributions based on final energy consumption.

125    First of all, Article 4(3) contains a list of matters which the Member States are to take into account when setting their indicative national energy efficiency contributions, while Article 4(4) specifies that a Member State is to ensure that its contribution in Mtoe is not more than 2.5% above what it would have been had it resulted from the formula set out in Annex I to the contested directive.

126    Next, it is apparent from Article 4(5) of that directive that the Commission must verify that the collective contribution of Member States is at least equal to the European Union’s binding target for final energy consumption and that, where it concludes that it is insufficient, the Commission is to submit to each Member State a corrected indicative national contribution, on the basis of which the Member State concerned is to update its indicative national contribution. Article 4(5) also states that, when applying the mechanism set out therein, the Commission is to ensure that there is no difference between the sum of the national contributions of all Member States and the European Union’s binding target.

127    Finally, under Article 4(6) of that directive, where the Commission concludes that insufficient progress has been made towards meeting the energy efficiency contributions, Member States that are above their indicative trajectories for final energy consumption are to ensure that additional measures are implemented to reach their energy efficiency contributions. Where those national measures are deemed to be insufficient, the Commission is to propose, as appropriate, measures in order to ensure, in particular, the achievement of the European Union’s 2030 energy efficiency targets.

128    However, although the provisions of Article 4 of the contested directive, as set out in the three preceding paragraphs of the present judgment, have a certain influence on the discretion of the Member States when defining their indicative national energy efficiency contributions, the fact remains that those provisions do not impose the level of those national contributions. They determine the overall energy efficiency target at EU level, with the result that the binding target must be achieved collectively by the Member States and not individually by each of them.

129    Thus, by relying solely on its own situation in order to argue that the contested directive sets unrealistic objectives for it, the Republic of Poland overlooks the collective nature of energy efficiency obligations and the need, following that policy choice, for a balance to be struck between the various interests involved. As the Parliament submits, in essence, the various matters set out in Article 4 of that directive, such as the indicative nature of the national contributions, the step-by-step approach for their potential correction and the possibility of calculating those contributions in various ways, demonstrate the balanced nature of that choice.

130    In the second place, as regards the argument that the objectives set out in Article 4 of the contested directive should be achieved over a longer period than that between 2023 and 2030 in order not to expose the Member States to negative macroeconomic consequences, it is sufficient to observe that the Republic of Poland does not in any way explain what those negative macroeconomic consequences would be for Member States other than the Republic of Poland. Nor does it propose the date, later than 2030, which would allow those targets to be met without Member States suffering such consequences, since that Member State merely alleges the need for ‘a longer period’ than that between 2023 and 2030.

131    That argument cannot therefore succeed in demonstrating, in the light of the case-law referred to in paragraphs 92 and 99 of the present judgment, that the choice made by the EU legislature as to the setting of the period for meeting the targets set out in Article 4 is manifestly inappropriate.

132    In the third place, as regards the allegedly unrealistic nature of the implementation of the monitoring obligation, laid down in Article 12 of the contested directive, on account of the alleged delay by the Commission in adopting an appropriate delegated act specifying the scope of the information to be provided by the national data centres and in creating a European database, it must be stated, first, that Article 12 states only that owners and operators of data centres with a power demand of the installed information technology of at least 500 kW are to make the information set out in Annex VII to that directive publicly available by 15 May 2024 at the latest.

133    As regards that information, it must be noted that the implementation of the monitoring obligation relating to the information referred to in points (a) and (b) of Annex VII does not require the adoption of a delegated act. Furthermore, as regards the information listed in point (c) of Annex VII, point (c) refers expressly to the performance that may be used as a basis until the entry into force of the delegated act adopted pursuant to Article 33(3) of that directive.

134    Second, whilst Article 12(3) of the contested directive provides for the establishment by the Commission of a European database of data centres, which collates the information communicated by the national data centres, and for that database to be made publicly available on an aggregated basis, it should be noted that that provision does not impose any obligation on the Member States and/or the owners and operators of the data centres concerned.

135    In any event, even assuming that the adoption of a delegated act was required in order for the Member States to be able to fulfil their obligations and that such an act was not adopted by the Commission within the period laid down by Article 33(3) of the contested directive, which, according to the Republic of Poland, made it difficult to transfer information on the performance of national data centres to the European database on data centres set up by the Commission, it must be stated that that Member State has not in any way explained the reasons why that delay should lead to the annulment of that directive in its entirety.

136    In those circumstances, the second part of the second plea in law must be rejected as unfounded.

 The third part

–       Arguments of the parties

137    By the third part of the second plea in law, the Republic of Poland, supported by Hungary, submits that the provisions of the contested directive do not take account of the specific situation of each Member State.

138    First, the Republic of Poland disputes the removal, compared with Directive 2012/27, of the possibility for Member States to set their indicative national energy efficiency contribution themselves, in so far as it is apparent from Article 4(3) to (6) of the contested directive that that directive authorises only a margin of deviation of 2.5% from the value of the national contributions set out by the Commission on the basis of the formula set out in Annex I to that directive.

139    It recalls that, under Article 4(6) of the contested directive, where, after assessing the national measures taken to meet the national target for final energy consumption, the Commission finds them to be insufficient, that institution is to propose additional measures in order to meet the European Union’s 2030 energy efficiency targets. The Member States, which must comply with the principle of sincere cooperation, cannot ignore such a proposal from the Commission.

140    In addition, the contribution linked to GDP per capita in the formula set out in Annex I does not reflect exhaustively the differences between the Member States and constitutes a challenge for the Republic of Poland in that it should both reduce final energy consumption, while maintaining satisfactory economic development.

141    It also criticises the fact that, when defining national contributions, it is not possible to take into account the effects of either the COVID-19 pandemic or the Russian Federation’s war of aggression against Ukraine. The Republic of Poland submits that, as a direct neighbour of Ukraine, it received more than four million refugees in the first months of that war, one million of whom are still in its territory, which has an indisputable impact on the increase in energy consumption throughout its territory, which should be taken into account in the context of the method for defining the energy efficiency target.

142    Second, the Republic of Poland submits that the energy savings obligations, referred to in Article 8 of the contested directive, pursue a binding individual energy saving target at the level of each Member State.

143    The Republic of Poland criticises the fact that, in view of the very limited possibility of counting, towards meeting that target, energy savings arising from the direct combustion of fossil fuels, which includes natural gas, those savings are completely disregarded.

144    Third, as regards the energy efficiency criteria for a district heating and cooling system, set out in Article 26 of the contested directive, and the criteria for defining high-efficiency cogeneration, set out in Annex III to that directive, the Republic of Poland submits that the rapid pace for their implementation, as provided for in that directive, is unacceptable for large-scale heating systems.

145    That Member State submits, first, that, in accordance with the criteria laid down in Article 26(1) of the contested directive, as from 1 January 2035, high-efficiency cogeneration will not, in itself, be decisive for ensuring the energy efficiency of district heating systems and that, as from 1 January 2045, cogeneration will no longer have any impact on energy efficiency.

146    It recalls, second, that a cap on direct carbon dioxide emissions of 270 g CO2 for 1 kW/h of energy from combined production, including heating/cooling, electricity and mechanical energy, is provided for in point (a) of Annex III, as a criterion for the definition of high-efficiency cogeneration, for cogeneration units built or substantially refurbished after the transposition of Annex III and, by 1 January 2034 at the latest, provided that they have a plan progressively to reduce emissions in order to reach that threshold, for cogeneration units in operation before 10 October 2023.

147    Recalling that, for historical reasons, the heating sector in Poland was designed to use coal, the Republic of Poland submits that the criteria laid down in Article 26 of, and Annex III to, the contested directive will no longer allow district heating systems based on coal-fired power plants to be regarded as ‘efficient’ district heating systems, within the meaning of Article 2(46) of that directive, and, at the same time, will deter renovations of those systems with a view to switching from coal to gas, whereas cogeneration with natural gas is now the only technology available for the largest district heating systems. Thus, as regards high-efficiency cogeneration, an appropriate transitional period should be introduced to allow Member States to adapt to the new requirements in order to avoid systems based on that technology no longer being considered to be efficient, within the meaning of Article 2(46) of that directive.

148    The Republic of Poland adds that compliance with the obligations arising from those new criteria laid down in Article 26 of, and Annex III to, the contested directive will lead to a sharp increase in heating prices and that vulnerable consumers will be pushed towards using highly polluting heating sources.

149    The Parliament and the Council, supported by the Commission, contend that the third part of the second plea in law must be rejected as unfounded.

–       Findings of the Court

150    In the first place, in order to demonstrate that the principle of proportionality was not observed when defining the framework for setting indicative national energy efficiency contributions, the Republic of Poland invokes, first, the fact that, under Article 4(3) to (6) of, and Annex I to, the contested directive, each Member State must ensure that its contribution in Mtoe does not exceed by more than 2.5% what it would have been if it had resulted from the formula set out in Annex I, and that, if the Commission considers that the national measures taken to achieve the national target for final energy consumption are insufficient, it proposes additional measures to the Member State concerned. Second, it submits that the element relating to GDP per capita, contained in the formula laid down in Annex I, presents a challenge for the Republic of Poland in the light of the need to maintain its economic development. Third, it submits that Article 4(4) and (5) of that directive and Annex I thereto do not make it possible to take into account the effects of the COVID-19 pandemic and those of the Russian Federation’s war of aggression against Ukraine which cause an increase in energy consumption in Poland.

151    However, in setting out those factors, the Republic of Poland merely maintains that it is likely to suffer negative economic consequences as a result of the adoption of the contested directive, without providing evidence of the disproportionate nature of those effects in relation to the legitimate objectives pursued by that directive at EU level. Nor does it take into account the expected economic benefits of the energy savings anticipated by that directive.

152    In the second place, as regards the Republic of Poland’s argument that, irrespective of the fact that Article 8 of the contested directive defines the energy savings objective to be achieved by all the Member States, the energy savings obligations referred to in Article 8 pursue an individual binding objective at the level of each Member State, it should be observed that the Republic of Poland does not explain why those obligations, in so far as they relate both to itself and to the other Member States, are, in the light of the case-law referred to in paragraph 92 of the present judgment, manifestly inappropriate in the light of the objectives pursued by that directive.

153    Similarly, the Republic of Poland also fails to explain why, in the light of those objectives, the EU legislature’s choice to limit the possibility of counting the energy savings arising from the direct combustion of fossil fuels with a view to achieving the energy savings objective is manifestly inappropriate.

154    In the third place, as regards the Republic of Poland’s argument that the deadlines for implementing the energy efficiency criteria for district heating and cooling systems, set out in Article 26 of the contested directive, and the criteria for defining high-efficiency cogeneration, set out in Annex III to that directive, are inadequate as regards large-scale district heating systems, it should be noted that that Member State has not demonstrated that those deadlines are manifestly inappropriate in the light of the objectives of promoting energy efficiency and saving energy, which the contested directive intends to achieve.

155    The Republic of Poland merely sets out the difficulties likely to arise from those implementation deadlines for large-scale district heating systems located on the territory of that Member State alone.

156    Nor does the Republic of Poland specify the features of an ‘appropriate’ transitional period which would allow district heating systems based on coal-fired and gas cogeneration plants to adapt to the new criteria laid down in Article 26 of, and Annex III to, the contested directive. In so doing, it appears that that Member State’s criticism relates, in reality, to the lack of a derogation to be applied in respect of Polish district heating systems served by those plants.

157    As recalled in paragraphs 99 and 113 of the present judgment, where the EU measure concerned has an impact in all Member States and requires that a balance between the different interests involved is ensured, taking account of the objectives of that measure, the EU legislature is not required to take into consideration the particular situation of a Member State. Therefore, the attempt to strike such a balance by taking into consideration the situation of all EU Member States rather than the particular situation of an individual Member State cannot, in itself, be regarded as being contrary to the principle of proportionality.

158    As regards the Republic of Poland’s submissions that the criteria laid down in Article 26 of, and Annex III to, that directive will deter owners of the district heating systems from making the refurbishments necessary to switch from coal to gas, will lead to a sharp increase in heating prices and will push vulnerable consumers towards using highly polluting heating sources, it suffices to observe that those submissions are based on speculative assumptions. They therefore cannot, as such, be the subject matter of a judicial review.

159    It follows that the third part of the second plea in law must be dismissed as unfounded.

160    In the light of all the foregoing considerations, the second plea in law must be rejected as unfounded and, consequently, the action must be dismissed in its entirety.

 Costs

161    Under Article 138(1) of the Rules of Procedure of the Court of Justice, 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 Parliament and the Council have applied for costs to be awarded against the Republic of Poland, and since the latter has been unsuccessful, the Republic of Poland must be ordered to bear its own costs and to pay those incurred by the Parliament and the Council.

162    In accordance with Article 140(1) of those rules, pursuant to which the Member States and institutions which have intervened in the proceedings are to bear their own costs, Hungary and the Commission shall bear their own costs.

On those grounds, the Court (Second Chamber) hereby:

1.      Dismisses the action;

2.      Orders the Republic of Poland to bear its own costs and to pay the costs incurred by the European Parliament and the Council of the European Union;

3.      Orders Hungary and the European Commission to bear their own costs.

[Signatures]

*      Language of the case: Polish.