Provisional text
JUDGMENT OF THE COURT (Second Chamber)
12 November 2026 (*)
( Action for interim measures – Regulation (EU) 2023/956 – Carbon Border Adjustment Mechanism – Legal basis of that regulation – Determination – Act supplementing a pre-existing act – Article 192(1) TFEU – Point (a) of the first subparagraph of Article 192(2) TFEU – Provisions primarily of a fiscal nature – Strict interpretation – Market-based measure )
In Case C‑512/23,
ACTION for annulment under Article 263 TFEU, brought on 8 August 2023,
Republic of Poland, represented by B. Majczyna, acting as Agent,
applicant,
v
European Parliament, represented by W. Kuzmienko and L. Stefani, acting as Agents,
Council of the European Union, represented initially by R. Boucquey, A. Maceroni, A. Sikora-Kalėda and A. Westerhof Löfflerová, acting as Agents, and subsequently by R. Boucquey, A. Maceroni and A. Westerhof Löfflerová, acting as Agents, and lastly by A. Maceroni, K. Pleśniak and A. Westerhof Löfflerová, acting as Agents,
defendants,
supported by:
European Commission, represented by A. Armenia, F. Moro, J. Norris and M. Owsiany-Hornung, acting as Agents,
intervener,
THE COURT (Second Chamber),
composed of K. Jürimäe, President of the 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: T. Ćapeta,
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 claims that the Court should annul Regulation (EU) 2023/956 of the European Parliament and of the Council of 10 May 2023 establishing a carbon border adjustment mechanism (OJ 2023 L 130, p. 52; ‘the contested regulation’).
Legal context
The FEU Treaty
2 Article 192(1) and point (a) of the first subparagraph of Article 192(2) TFEU provides:
‘1. The European Parliament and the [Council of the European Union], acting in accordance with the ordinary legislative procedure and after consulting the [European Economic and Social Committee (EESC)] and the [European Committee of the Regions (CoR)], shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191.
2. By way of derogation from the decision-making procedure provided for in paragraph 1 and without prejudice to Article 114, the Council acting unanimously in accordance with a special legislative procedure and after consulting the [Parliament], the [EESC] and the [CoR], shall adopt:
(a) provisions primarily of a fiscal nature’.
The contested regulation
3 Recitals 2, 5, 6, 8 to 12, 14, 15, 19 to 24, 27 to 29, 49, 73 and 74 of the contested regulation state:
‘(2) The 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 Union by Council Decision (EU) 2016/1841 of 5 October 2016 (OJ 2016 L 282, p. 1)], entered into force on 4 November 2016. The Parties to the Paris Agreement have agreed to hold the increase in the global average temperature well below 2 °C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels. Under the Glasgow Climate Pact, adopted on 13 November 2021, the Conference of the Parties to the [United Nations Framework Convention on Climate Change (UNFCCC)], serving as the meeting of the Parties to the Paris Agreement, also recognised that limiting the increase in the global average temperature to 1.5 °C above pre-industrial levels would significantly reduce the risks and impacts of climate change, and committed to strengthening the 2030 targets by the end of 2022 to close the ambition gap.
…
(5) 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)] has enshrined in legislation the objective of economy-wide climate neutrality at the latest by 2050. That Regulation also establishes a binding [European] Union domestic reduction target for net greenhouse gas emissions (emissions after deduction of removals) of at least 55% compared to 1990 levels by 2030.
(6) The Special Report of the Intergovernmental Panel on Climate Change (IPCC) of 2018 on the impacts of global temperature increases of 1.5 °C above pre-industrial levels and related global greenhouse gas emission pathways provides a strong scientific basis for tackling climate change and illustrates the need to step up climate action. That report confirms that, in order to reduce the likelihood of extreme weather events, greenhouse gas emissions need to be urgently reduced, and that climate change needs to be limited to a global temperature increase of 1.5 °C. Moreover, if mitigation pathways, consistent with limiting global warming to 1.5 °C above pre-industrial levels, are not rapidly activated, much more expensive and complex adaptation measures will have to be taken to avoid the impacts of higher levels of global warming. The contribution of Working Group I to the Sixth Assessment Report of the IPCC entitled “Climate Change 2021: The Physical Science Basis” recalls that climate change is already affecting every region on Earth and projects that in the coming decades climate change will increase in all regions. That report stresses that, unless there are immediate, rapid and large-scale reductions in greenhouse gas emissions, limiting warming to close to 1.5 °C or even 2 °C will be beyond reach.
…
(8) While the Union has substantially reduced its domestic greenhouse gas emissions, the greenhouse gas emissions embedded in imports to the Union have been increasing, thereby undermining the Union’s efforts to reduce its global greenhouse gas emissions footprint. The Union has a responsibility to continue playing a leading role in global climate action.
(9) As long as a significant number of the Union’s international partners have policy approaches that do not achieve the same level of climate ambition, there is a risk of carbon leakage. Carbon leakage occurs if, for reasons of costs related to climate policies, businesses in certain industry sectors or subsectors transfer production to other countries or imports from those countries replace equivalent products that are less intensive in terms of greenhouse gas emissions. Such situations could lead to an increase in the total global emissions, thus jeopardising the reduction of greenhouse gas emissions that is urgently needed if the world is to keep the increase in global average temperature to well below 2 °C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels. As the Union increases its climate ambition, that risk of carbon leakage could undermine the effectiveness of Union emission reduction policies.
(10) The initiative for a carbon border adjustment mechanism (the “CBAM”) is part of the “Fit for 55” legislative package. The CBAM is to serve as an essential element of the Union’s toolbox for meeting the objective of a climate-neutral Union at the latest by 2050 in line with the Paris Agreement by addressing the risk of carbon leakage that results from the Union’s increased climate ambition. The CBAM is expected to also contribute to promoting decarbonisation in third countries.
(11) Existing mechanisms for addressing the risk of carbon leakage in sectors or subsectors where such risk exists consist of the transitional free allocation of [system for greenhouse gas emission allowance trading within the Union (“EU ETS”)] allowances and financial measures to compensate for indirect emission costs incurred from greenhouse gas emission costs passed on in electricity prices. Those mechanisms are set out in Article 10a(6) and Article 10b of 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)], respectively. The free allocation of EU ETS allowances at the level of best performers has been a policy instrument for certain industrial sectors to address the risk of carbon leakage. However, compared to full auctioning, such free allocation weakens the price signal that the system provides and thus affects the incentives for investment into further reducing greenhouse gas emissions.
(12) The CBAM seeks to replace those existing mechanisms by addressing the risk of carbon leakage in a different way, namely by ensuring equivalent carbon pricing for imports and domestic products. To ensure a gradual transition from the current system of free allowances to the CBAM, the CBAM should be progressively phased in while free allowances in sectors covered by the CBAM are phased out. The combined and transitional application of EU ETS allowances allocated free of charge and of the CBAM should in no case result in more favourable treatment for Union goods compared to goods imported into the customs territory of the Union.
…
(14) While the objective of the CBAM is to prevent the risk of carbon leakage, this Regulation would also encourage producers from third countries to use technologies that are more efficient in reducing greenhouse gases so that fewer emissions are generated. For that reason, the CBAM is expected to effectively support the reduction of greenhouse gas emissions in third countries.
(15) As an instrument to prevent carbon leakage and reduce greenhouse gas emissions, the CBAM should ensure that imported products are subject to a regulatory system that applies carbon costs equivalent to those borne under the EU ETS, resulting in a carbon price that is equivalent for imports and domestic products. The CBAM is a climate measure which should support the reduction of global greenhouse gas emissions and prevent the risk of carbon leakage, while ensuring compatibility with World Trade Organization [(WTO)] law.
…
(19) The greenhouse gas emissions that should be subject to the CBAM should correspond to those greenhouse gas emissions covered by Annex I to Directive [2003/87], namely carbon dioxide (“CO2”) as well as, where relevant, nitrous oxide and perfluorocarbons. The CBAM should initially apply to direct emissions of those greenhouse gases from the time of production of goods until the import of those goods into the customs territory of the Union, mirroring the scope of the EU ETS to ensure coherence. The CBAM should also apply to indirect emissions. Those indirect emissions are the emissions arising from the generation of electricity used to produce the goods to which this Regulation applies. The inclusion of indirect emissions would further enhance the environmental effectiveness of the CBAM and its ambition to contribute to fighting climate change. …
(20) The EU ETS and the CBAM share a common objective of pricing greenhouse gas emissions embedded in the same sectors and goods through the use of specific allowances or certificates. Both systems have a regulatory nature and are justified by the need to curb greenhouse gas emissions, in line with the binding environmental target under Union law, set out in [the European Climate Law], to reduce the Union’s net greenhouse gas emissions by at least 55% compared to 1990 levels by 2030 and the objective to reach economy-wide climate neutrality at the latest by 2050.
(21) While the EU ETS sets the total number of allowances issued (the “cap”) on the greenhouse gas emissions from activities within its scope and allows trading of allowances … the CBAM should not establish quantitative limits on imports, so that trade flows are not restricted. Moreover, while the EU ETS applies to installations in the Union, the CBAM should apply to certain goods imported into the customs territory of the Union.
(22) The CBAM system has some specific features when compared to the EU ETS, including with respect to the calculation of the price of CBAM certificates, the possibilities to trade CBAM certificates and their period of validity. Those features are due to the need to preserve the effectiveness of the CBAM as a measure to prevent carbon leakage over time. They also ensure that the management of the CBAM system is not excessively burdensome, both in terms of obligations imposed on operators and administrative resources, while at the same time preserving a level of flexibility available to operators equivalent to that under the EU ETS. Ensuring such a balance is of particular importance to [the] small and medium-sized enterprises (SMEs) concerned.
(23) In order to preserve its effectiveness as a measure to prevent carbon leakage, the CBAM needs to reflect closely the EU ETS price. While on the EU ETS market the price of allowances released onto the market is determined through auctions, the price of CBAM certificates should reasonably reflect the price of such auctions through averages calculated on a weekly basis. Such weekly average prices reflect closely the price fluctuations of the EU ETS and allow a reasonable margin for importers to take advantage of the price changes of the EU ETS while also ensuring that the system remains manageable for administrative authorities.
(24) Under the EU ETS, the cap determines the supply of emission allowances and provides certainty about maximum emissions of greenhouse gases. The carbon price is determined by the balance of that supply against the market demand. Scarcity is necessary for there to be a price incentive. This Regulation is not intended to impose a cap on the number of CBAM certificates available to importers; if importers were able to carry forward and trade CBAM certificates, that ability could have resulted in situations where the price for CBAM certificates would no longer reflect the evolution of the price in the EU ETS. Such a situation would weaken the incentive for decarbonisation, favouring carbon leakage and impairing the overarching climate objective of the CBAM. It could also result in different prices for operators from different countries. The limits on the possibilities to trade CBAM certificates and to carry them forward are therefore justified by the need to avoid undermining the effectiveness and climate objective of the CBAM and to ensure even-handed treatment of operators from different countries. However, in order to preserve the possibility for importers to optimise their costs, this Regulation should provide for a system where authorities can repurchase a certain amount of excess certificates from importers. Such amount should be set at a level which allows a reasonable margin for importers to leverage their costs over the period of validity of the certificates while preserving the overall price transmission effect, ensuring that the environmental objective of the CBAM is preserved.
…
(27) While the EU ETS applies to certain production processes and activities, the CBAM should target the corresponding imports of goods. …
(28) The goods or processed products covered by the CBAM should reflect the activities covered by the EU ETS as that system is based on quantitative and qualitative criteria linked to the environmental objective of Directive [2003/87] and is the most comprehensive greenhouse gas emissions regulatory system in the Union.
(29) Defining the scope of the CBAM in a way that reflects the activities covered by the EU ETS would also contribute to ensuring that imported products are granted a treatment that is not less favourable than that accorded to like products of domestic origin.
…
(49) CBAM certificates would differ from EU ETS allowances for which daily auctioning is an essential feature. The need to set a clear price for CBAM certificates would make daily publication excessively burdensome and confusing for operators, as daily prices risk becoming obsolete upon publication. Thus, the publication of CBAM prices on a weekly basis would more accurately reflect the pricing trend of EU ETS allowances released onto the market and pursue the same climate objective. The calculation of the price of CBAM certificates should therefore be set on the basis of a longer timeframe, namely on a weekly basis, than on the timeframe established by the EU ETS, namely on a daily basis. The [European] Commission should be tasked with calculating and publishing that average price.
…
(73) In order to further support the achievement of the goals of the Paris Agreement in third countries, it is desirable that the Union continue to provide financial support through the Union budget towards climate mitigation and adaptation in [least developed countries (LDCs)], including in their efforts towards the decarbonisation and transformation of their manufacturing industries. That Union support should also contribute to facilitating the adaptation of the industries concerned to the new regulatory requirements stemming from this Regulation.
(74) As the CBAM aims to encourage cleaner production, the Union is committed to working with and supporting low and middle-income third countries towards the decarbonisation of their manufacturing industries as part of the external dimension of the European Green Deal and in line with the Paris Agreement. The Union should continue to support those countries through the Union budget, especially LDCs, in order to contribute to ensuring their adaptation to the obligations under this Regulation. The Union should also continue to support climate mitigation and adaptation in those countries, including in their efforts towards the decarbonisation and transformation of their manufacturing industries, within the ceiling of the multi-annual financial framework and the financial support provided by the Union to international climate finance. The Union is working towards introducing a new own resource based on the revenues generated by the sale of CBAM certificates.’
4 Article 1 of the contested regulation, entitled ‘Subject matter’, provides:
‘1. This Regulation establishes a [CBAM] to address greenhouse gas emissions embedded in the goods listed in Annex I on their importation into the customs territory of the Union in order to prevent the risk of carbon leakage, thereby reducing global carbon emissions and supporting the goals of the Paris Agreement, also by creating incentives for the reduction of emissions by operators in third countries.
2. The CBAM complements the [EU ETS] established under Directive [2003/87] … by applying an equivalent set of rules to imports into the customs territory of the Union of the goods referred to in Article 2 of this Regulation.
3. The CBAM is set to replace the mechanisms established under Directive [2003/87] to prevent the risk of carbon leakage by reflecting the extent to which EU ETS allowances are allocated free of charge in accordance with Article 10a of that Directive.’
5 Article 2 of that regulation, entitled ‘Scope’, provides:
‘1. This Regulation applies to goods listed in Annex I originating in a third country, where those goods, or processed products from those goods resulting from the inward processing procedure referred to in Article 256 of Regulation (EU) No 952/2013 [of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1)], are imported into the customs territory of the Union.
2. This Regulation also applies to goods listed in Annex I to this Regulation originating in a third country, where those goods, or processed products from those goods resulting from the inward processing procedure referred to in Article 256 of Regulation (EU) No 952/2013, are brought to an artificial island, a fixed or floating structure, or any other structure on the continental shelf or in the exclusive economic zone of a Member State that is adjacent to the customs territory of the Union.
…
4. By way of derogation from paragraphs 1 and 2, this Regulation shall not apply to goods originating in the third countries and territories listed in point 1 of Annex III.
…
6. Third countries and territories shall be listed in point 1 of Annex III where they fulfil all the following conditions:
(a) the EU ETS applies to that third country or territory or an agreement has been concluded between that third country or territory and the Union fully linking the EU ETS and the emission trading system of that third country or territory;
(b) the carbon price paid in the country in which the goods originate is effectively charged on the greenhouse gas emissions embedded in those goods without any rebates beyond those also applied in accordance with the EU ETS.
…’
6 Article 3 of the contested regulation, entitled ‘Definitions’, provides, in paragraphs 17 and 24 thereof:
‘For the purposes of this Regulation, the following definitions apply:
…
(17) “authorised CBAM declarant” means a person authorised by a competent authority in accordance with Article 17;
…
(24) “CBAM certificate” means a certificate in electronic format corresponding to one tonne of CO2e of embedded emissions in goods’.
7 Article 6 of that regulation, entitled ‘CBAM declaration’, provides, in paragraph 2(c):
‘The CBAM declaration shall contain the following information:
…
(c) the total number of CBAM certificates to be surrendered, corresponding to the total embedded emissions referred to in point (b) of this paragraph after the reduction that is due on the account of the carbon price paid in a country of origin in accordance with Article 9 and the adjustment necessary to reflect the extent to which EU ETS allowances are allocated free of charge in accordance with Article 31’.
8 Article 9 of that regulation, entitled ‘Carbon price paid in a third country’, provides, in paragraph 1:
‘An authorised CBAM declarant may claim in the CBAM declaration a reduction in the number of CBAM certificates to be surrendered in order to take into account the carbon price paid in the country of origin for the declared embedded emissions. The reduction may be claimed only if the carbon price has been effectively paid in the country of origin. In such a case, any rebate or other form of compensation available in that country that would have resulted in a reduction of that carbon price shall be taken into account.’
9 Article 20 of the contested regulation, entitled ‘Sale of CBAM certificates’, provides, in paragraph 4:
‘CBAM certificates shall be sold to authorised CBAM declarants at the price calculated in accordance with Article 21.’
10 Article 21 of that regulation, entitled ‘Price of CBAM certificates’, provides, in the first subparagraph of paragraph 1 thereof:
‘The Commission shall calculate the price of CBAM certificates as the average of the closing prices of EU ETS allowances on the auction platform, in accordance with the procedures laid down in [Commission Regulation (EU) No 1031/2010 of 12 November 2010 on the timing, administration and other aspects of auctioning of greenhouse gas emission allowances pursuant to Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowances trading within the Community (OJ 2010 L 302, p. 1)], for each calendar week.’
11 Article 22 of the contested regulation, entitled ‘Surrender of CBAM certificates’, provides, in paragraph 1 thereof:
‘By 31 May of each year, and for the first time in 2027 for the year 2026, the authorised CBAM declarant shall surrender via the CBAM registry a number of CBAM certificates that corresponds to the embedded emissions declared in accordance with Article 6(2), point (c), and verified in accordance with Article 8, for the calendar year preceding the surrender. The Commission shall remove surrendered CBAM certificates from the CBAM registry. The authorised CBAM declarant shall ensure that the required number of CBAM certificates is available on its account in the CBAM registry.’
12 Article 23 of that regulation, entitled ‘Repurchase of CBAM certificates’, provides, in paragraphs 2 and 3 thereof:
‘2. The number of certificates subject to repurchase as referred to in paragraph 1 shall be limited to one third of the total number of CBAM certificates purchased by the authorised CBAM declarant during the previous calendar year.
3. The repurchase price for each CBAM certificate shall be the price paid by the authorised CBAM declarant for that certificate at the time of purchase.’
13 Article 26 of that regulation, entitled ‘Penalties’, provides:
‘1. An authorised CBAM declarant who fails to surrender, by 31 May of each year, the number of CBAM certificates that corresponds to the emissions embedded in goods imported during the preceding calendar year shall be held liable for the payment of a penalty. Such a penalty shall be identical to the excess emissions penalty set out in Article 16(3) of Directive [2003/87] and increased pursuant to Article 16(4) of that Directive, applicable in the year of importation of the goods. Such a penalty shall apply for each CBAM certificate that the authorised CBAM declarant has not surrendered.
2. Where a person other than an authorised CBAM declarant introduces goods into the customs territory of the Union without complying with the obligations under this Regulation, that person shall be held liable for the payment of a penalty. Such a penalty shall be effective, proportionate and dissuasive and shall, depending in particular on the duration, gravity, scope, intentional nature and repetition of such non-compliance and the level of cooperation of the person with the competent authority, be an amount from three to five times the penalty referred to in paragraph 1, applicable in the year of introduction of the goods, for each CBAM certificate that the person has not surrendered.
3. The payment of the penalty shall not release the authorised CBAM declarant from the obligation to surrender the outstanding number of CBAM certificates in a given year.
…’
14 Article 27 of the contested regulation, entitled ‘Circumvention’, provides, in paragraphs 1 to 3 thereof:
‘1. The Commission shall take action in accordance with this Article, based on relevant and objective data, to address practices of circumvention of this Regulation.
2. Practices of circumvention shall be defined as a change in the pattern of trade in goods, which stems from a practice, process or work, for which there is insufficient due cause or economic justification other than to avoid, wholly or partially, any of the obligations laid down in this Regulation. Such practice, process or work may consist of, but is not limited to:
(a) slightly modifying the goods concerned to make those goods fall under CN codes which are not listed in Annex I, except where the modification alters their essential characteristics;
(b) artificially splitting shipments into consignments the intrinsic value of which does not exceed the threshold referred to in Article 2(3).
3. The Commission shall continuously monitor the situation at Union level with a view to identifying practices of circumvention, including by way of market surveillance or on the basis of any relevant source of information, such as submissions by, and reporting from, civil society organisations.’
15 Article 30 of that regulation, entitled ‘Review and reporting by the Commission’, provides, in paragraph 6 thereof:
‘The Commission shall monitor the functioning of the CBAM with a view to evaluating the impacts and possible adjustments in its application.
Before 1 January 2028, as well as every two years thereafter, the Commission shall present a report to the [Parliament] and to the Council on the application of this Regulation and functioning of the CBAM. The report shall contain at least the following:
…
(b) an assessment of:
…
(iii) practices of circumvention;
…
…’
16 Article 31 of that regulation, entitled ‘Free allocation of allowances under the EU ETS and obligation to surrender CBAM certificates’, provides, in paragraph 1 thereof:
‘The CBAM certificates to be surrendered in accordance with Article 22 of this Regulation shall be adjusted to reflect the extent to which EU ETS allowances are allocated free of charge in accordance with Article 10a of Directive [2003/87] to installations producing, within the Union, the goods listed in Annex I to this Regulation.’
17 Annex I to that same regulation establishes the list of goods and greenhouse gases to which it applies.
Directive 2003/87
18 Article 10a(1a) of Directive 2003/87, as amended by Directive (EU) 2023/959 of the European Parliament and of the Council of 10 May 2023 (OJ 2023 L 130, p.134) (‘Directive 2003/87’) is worded as follows:
‘Subject to the application of [the contested regulation], no free allocation shall be given in relation to the production of goods listed in Annex I to that Regulation.
By way of derogation from the first subparagraph of this paragraph, for the first years of application of [the contested regulation], the production of goods listed in Annex I to that Regulation shall benefit from free allocation in reduced amounts. A factor reducing the free allocation for the production of those goods shall be applied (CBAM factor). The CBAM factor shall be equal to 100% for the period between the entry into force of that Regulation and the end of 2025 and, subject to the application of provisions referred to in Article 36(2), point (b), of that Regulation, shall be equal to 97.5% in 2026, 95% in 2027, 90% in 2028, 77.5% in 2029, 51.5% in 2030, 39% in 2031, 26.5% in 2032 and 14% in 2033. From 2034, no CBAM factor should apply.
…
By 31 December 2024 and as part of its annual report to the European Parliament and to the Council pursuant to Article 10(5) of this Directive, the Commission shall assess the carbon leakage risk for goods subject to CBAM and produced in the Union for export to third countries which do not apply the EU ETS or a similar carbon pricing mechanism. The report shall in particular assess the carbon leakage risk in sectors to which CBAM will apply, in particular the role and accelerated uptake of hydrogen, and the developments as regards trade flows and the embedded emissions of goods produced by those sectors on the global market. Where the report concludes that there is a carbon leakage risk for goods produced in the Union for export to third countries which do not apply the EU ETS or an equivalent carbon pricing mechanism, the Commission shall, where appropriate, submit a legislative proposal to address that carbon leakage risk in a manner that is compliant with the rules of the World Trade Organization, including Article XX of the General Agreement on Tariffs and Trade 1994, and takes into account the decarbonisation of installations in the Union.’
19 Article 16 of Directive 2003/87, which is entitled ‘Penalties’, provides as follows in paragraphs 3 and 4 thereof:
‘3. Member States shall ensure that any operator or aircraft operator who does not surrender sufficient allowances by 30 September of each year to cover its emissions during the preceding year shall be held liable for the payment of an excess emissions penalty. The excess emissions penalty shall be EUR 100 for each tonne of carbon dioxide equivalent emitted for which the operator or aircraft operator has not surrendered allowances. Payment of the excess emissions penalty shall not release the operator or aircraft operator from the obligation to surrender an amount of allowances equal to those excess emissions when surrendering allowances in relation to the following calendar year.
…
4. The excess emissions penalty relating to allowances issued from 1 January 2013 onwards shall increase in accordance with the European index of consumer prices.’
Forms of order sought and procedure before the Court of Justice
20 The Republic of Poland claims that the Court should:
– annul the contested regulation in its entirety; and
– order the Parliament and the Council to pay the costs.
21 The Parliament and the Council contend that the Court should:
– dismiss the action; and
– order the Republic of Poland to pay the costs.
22 By decision of the President of the Court of 13 December 2023, the Commission was granted leave to intervene in support of the form of order sought by the Parliament and the Council.
The action
23 In support of its action, the Republic of Poland relies on a single plea in law, alleging infringement of point (a) of the first subparagraph of Article 192(2) TFEU, inasmuch as the contested regulation ought to have been adopted on the basis of that provision.
Arguments of the parties
24 The Republic of Poland puts forward four arguments under its single plea in law.
25 In the first place, the Republic of Poland submits that the contested regulation ought to have been based on point (a) of the first subparagraph of Article 192(2) TFEU, since it pursues an environmental objective by means of ‘provisions primarily of a fiscal nature’. In the absence of a definition of that concept in the FEU Treaty, it should be construed broadly, in accordance with the case-law following the judgment of 29 April 2004, Commission v Council (C‑338/01, EU:C:2004:253, paragraph 63 et seq.) and should, therefore, cover inter alia ecotaxes, that is to say, taxes charged with a view to protecting the environment within the meaning of Article 191 TFEU.
26 Moreover, the Polish-language version of point (a) of the first subparagraph of Article 192(2) TFEU uses the term ‘fiskalny’. That term is broader in scope than the term ‘podatkowy’, which is used in other provisions of the Treaty and refers solely to taxation policy. Point (a) of the first subparagraph of Article 192(2) TFEU thus covers provisions of a fiscal nature in the broad sense of the term, meeting the criteria that substantively define budgetary revenue of a fiscal nature, such as the unilateral and compulsory nature of the charge, the fact that it is established with a view to securing budgetary revenue, and that its level is determined by statutory provisions.
27 The Republic of Poland submits that that interpretation protects Member States’ financial autonomy by preventing fiscal provisions from being adopted on the basis of Article 192(1) TFEU.
28 In the second place, the CBAM features characteristics of a tax or, at the very least, those of a fiscal measure within the meaning of point (a) of the first subparagraph of Article 192(2) TFEU. The contested regulation provides, inter alia, that the taxable person is the authorised CBAM declarant; that the taxable event is the importation of the goods referred to in Annex I to that regulation, and that the tax base corresponds to the total embedded emissions of the goods imported during the previous calendar year. It also sets out the arrangements for payment of the tax. Moreover, Article 2(3) and (4) of that regulation provides for derogations to the application thereof, which are tax exemptions. Moreover, the possibility, provided for in Article 9 of that same regulation, of reducing the number of CBAM certificates to be surrendered in order to take into account the carbon price paid in the country of origin for the declared embedded emissions, bears the characteristics of fiscal relief. Moreover, according to recitals 73 and 74 of the contested regulation, the revenue generated by the CBAM, which the Commission Proposal for a regulation of the European Parliament and of the Council establishing a carbon border adjustment mechanism COM(2021) 564 final of 14 July 2021 estimates at EUR 9.1 billion for 2030, should be allocated in support of low- and middle-income third countries in order to help them fight climate change, which characterises the redistributive function of taxation. Lastly, Articles 26 and 27 of that regulation provide for specific penalties that are a particular feature of tax law.
29 In the third place, although the contested regulation promotes the decarbonisation and transformation of manufacturing industries in third countries with which the Union has trade links, its environmental objective is secondary to its budgetary and fiscal objective. Indeed, the objective of generating revenue pursued by that regulation is the primary one, a point confirmed by the fact that the number of CBAM certificates available is not capped or linked to the quantity of EU ETS allowances.
30 In so doing, that regulation encourages circumvention of the CBAM and prevents it from fulfilling its environmental function, which is supposed to encourage companies situated outside the EU to invest in low greenhouse gas emission technologies.
31 Since an importer of goods falling within the scope of the CBAM may purchase an unlimited number of CBAM certificates at a price corresponding to that of greenhouse gas emission allowances, the expected rise in the price of those allowances makes it possible to achieve a particularly high profit, not only for the importer but also for the producer of those goods, which generate greenhouse gas emissions outside the Union. Thus, the contested regulation contributes to the relocation of the production of goods that generate greenhouse gas emissions outside the Union and, consequently, to a shift from the EU ETS to the CBAM. In the long term, following the purchase of a large number of CBAM certificates, such a transfer could lead to a drop in demand for EU ETS allowances and, consequently, to a drop in their price. The Republic of Poland emphasises, in that regard, that it is difficult, in such a situation, to expect that the generation of greenhouse gas emissions that has been shifted outside the Union will subsequently return to it.
32 Furthermore, the phenomenon of ‘resource shuffling’ could lead producers in third countries, particularly in the steel industry, to export products with low embedded greenhouse gas emissions to the Union, whilst reserving products with high greenhouse gas emissions for domestic markets or markets outside the EU, with the result that production patterns would remain unchanged in those third countries.
33 Another possible consequence of applying the CBAM is the risk that a producer in a third country might spread the costs of the CBAM across its entire production and reduce the price of the product intended for export to the EU. The smaller the proportion of the production that is exported to the EU, the more the CBAM costs could be so spread.
34 In the fourth place, it can be inferred from the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864) that, unlike the EU ETS, the CBAM introduces not a market-based measure but rather a fiscal instrument. The CBAM does not set any quantitative limits and, under Articles 21 to 23 of the contested regulation, an importer subject to the CBAM may not trade CBAM certificates on the market. It also follows from recitals 23 and 49 of that regulation that the prices of CBAM certificates are set administratively and not directly by market forces operating within the framework of an auction.
35 The Parliament and the Council, supported by the Commission, contend that the single plea in law relied on by the Republic of Poland should be rejected as unfounded.
Findings of the Court
36 In support of its single plea in law, alleging infringement of point (a) of the first subparagraph of Article 192(2) TFEU, inasmuch as the contested regulation ought to have been adopted on the basis of that provision, the Republic of Poland puts forward four arguments. First, the CBAM pursues an environmental objective by means of ‘provisions primarily of a fiscal nature’ within the meaning of point (a) of the first subparagraph of Article 192(2) TFEU. Secondly, it features all the characteristics of a tax. Thirdly, the environmental objective pursued by the contested regulation is secondary to its budgetary and fiscal objective, which creates a risk of circumvention of the CBAM. Fourthly, the CBAM is not a market-based measure.
37 It is appropriate to begin by examining together the first and third arguments put forward by the Republic of Poland.
38 Inasmuch as the Republic of Poland is claiming that the contested regulation ought to have been based on point (a) of the first subparagraph of Article 192(2) TFEU, it should be borne in mind that the choice of Article 192(2) TFEU as a legal basis for a measure is founded on the same factors as those consistently taken into account by the Court in its case-law (judgment of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraphs 37 to 39).
39 The Court has consistently held, first, that the choice of the legal basis for a measure may not depend simply on an institution’s conviction as to the objective pursued but must be based on objective factors which are amenable to judicial review, such as the aim and the content of the measure (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).
40 If the choice of legal basis of a legislative measure were to depend on an assessment of the likely impact thereof which, by its nature, is speculative, only an assessment after its entry into force would make it possible to know the real and specific effects of such a measure. That assessment would therefore in no way be 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).
41 It is, moreover, settled case-law that the validity of an EU measure cannot depend on retrospective assessment 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).
42 Consequently, the assessment of the anticipated effect of an EU measure on a Member State’s energy policy may be taken into consideration only in the assessment of the aim or content of that measure (see, to that effect, judgment of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraph 42).
43 Secondly, the choice of legal basis for a measure may also be based on the context of which it forms part, since that context is capable of shedding light on the aim 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).
44 Thirdly, if the 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).
45 Fourthly, a broad interpretation of the first subparagraph of Article 192(2) TFEU would risk having the effect of making recourse to the special legislative procedure, which the Treaty FEU intended as an exception, into the general rule. However, under the principle that exceptions must be interpreted strictly, point (a) 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 the adoption of provisions of essentially a fiscal nature (see, by analogy, judgment of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraphs 44 to 46).
46 That rule of interpretation is not called into question by the fact that, in the context of Articles 93 to 95 EC (now Articles 113 to 115 TFEU), relating to common rules on taxation and approximation of laws, and in the absence, in the Treaties, of indications as to how the concept of ‘fiscal provisions’ is to be interpreted, the Court has held that, in view of its general nature, that concept covers not only all areas of taxation, without drawing any distinction between the types of duties or taxes concerned, but also all aspects of taxation, whether material or procedural rules, which includes the detailed arrangements for the collection and recovery of direct and indirect taxes (judgments of 29 April 2004, Commission v Council, C‑338/01, EU:C:2004:253, paragraphs 63 and 64, and of 27 April 2022, Airbnb Ireland, C‑674/20, EU:C:2022:303, paragraph 27).
47 Furthermore, it is irrelevant that, in the Polish-language version thereof, point (a) of the first subparagraph of Article 192(2) TFEU uses the term ‘fiskalny’, which, according to the Republic of Poland, covers provisions of a fiscal nature in the broad sense of the term, meeting the criteria that substantively define budgetary revenue of a fiscal nature, such as the unilateral and compulsory nature of the charge.
48 The wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be given priority over the other language versions. Such an approach would be incompatible with the requirement for uniform application of EU law (see, to that effect, judgments of 27 March 1990, Cricket St Thomas, C‑372/88, EU:C:1990:140, paragraphs 18 and 19; of 3 March 2011, Commission v Netherlands, C‑41/09, EU:C:2011:108, paragraph 44; and of 27 November 2025, Svema Trade, C‑567/24, EU:C:2025:920, paragraph 23).
49 The Republic of Poland’s argument to the effect that basing the contested regulation on point (a) of the first subparagraph of Article 192(2) TFEU protects Member States’ financial autonomy must also be rejected, as it is not procedures that define the legal basis of a measure but the legal basis of a measure that determines the procedures to be followed in adopting that measure (judgment of 19 July 2012, Parliament v Council, C‑130/10, EU:C:2012:472, paragraph 80).
50 In the light of the foregoing considerations, and in accordance with the criteria referred to in paragraphs 38 to 45 of the present judgment, it is appropriate to examine the very aim and content of the contested regulation, as well as the context of which it forms part, in order to determine whether the EU legislature was correct in opting to base the adoption of it on Article 192(1) TFEU.
51 As regards the aim pursued by the contested regulation, it follows from recital 14 thereof that, in introducing the CBAM, the EU legislature, in the interests of efficiency, intended to pursue a two-fold objective consisting in preventing the risk of carbon leakage while at the same time encouraging third-country producers to use more efficient technologies for reducing greenhouse gases, so as to reduce the emissions generated. As stated in recitals 8 and 9 of that regulation, the EU legislature considers that the Union must continue playing a leading role in global climate action given that, as long as a significant number of the Union’s international partners have policy approaches that do not achieve the same level of climate ambition, the risk of carbon leakage will persist.
52 In that vein, recitals 5 and 20 of the contested regulation refer to the objective of reducing global carbon emissions in accordance with the Paris Agreement, as well as the binding target, set out in Article 4(1) of the European Climate Law, to reduce the Union’s net greenhouse gas emissions by at least 55% by 2030 compared to1990 levels.
53 Article 1(1) of the contested regulation establishes a CBAM to address greenhouse gas emissions embedded in the goods listed in Annex I thereto on their importation into the customs territory of the Union in order to prevent the risk of carbon leakage. Recital 9 of that regulation states that carbon leakage occurs if, for reasons of costs related to climate policies, businesses in certain industry sectors or subsectors transfer production to other countries or imports from those countries replace equivalent products that are less intensive in terms of greenhouse gas emissions.
54 Moreover, inter alia recitals 6, 9 and 10 of the contested regulation are to the effect that, in view of the Special Report of the IPCC of 2018 referred to in recital 6, which provides a strong scientific basis for tackling climate change, the EU legislature deemed it necessary to step up climate action and the level of its climate ambition, by setting more ambitious climate targets for the Union, failing which the risk of carbon leakage could undermine the effectiveness of Union greenhouse gas emission reduction policies.
55 Moreover, Article 1(3), as well as recitals 11, 12 and 15 of that regulation highlight the fact that the CBAM is a climate measure which should support the reduction of global greenhouse gas emissions and prevent the risk of carbon leakage, by compensating for the main weaknesses of the EU ETS while ensuring compatibility with WTO law, which justifies that, unlike the EU ETS, the CBAM does not set quantitative limits for imports. Indeed, as stated in recital 21 of that regulation, that is so that trade flows are not restricted.
56 It thus appears that the contested regulation is part of an effort to protect the environment and, more specifically, to combat climate change.
57 The content of that regulation shows the EU legislature’s intention to ensure coherence between the CBAM and the EU ETS.
58 First, Article 1(2) of that regulation provides that the CBAM complements the EU ETS by applying an equivalent set of rules to imports into the customs territory of the Union of the goods referred to in Article 2 of that same regulation. The contested regulation in fact is intended to align the scope of the CBAM with that of the EU ETS. It follows from recitals 19 and 27 to 29 of the contested regulation that, while the EU ETS applies to certain production processes and activities, the CBAM should target the corresponding imports of goods, so that the goods or processed products covered by the CBAM reflect the activities covered by the EU ETS. Moreover, aligning the scope of those two schemes is likely to ensure compliance with the principle of equal treatment between imported products and similar products originating in the Union.
59 Secondly, the first subparagraph of Article 21(1) of the contested regulation, read in conjunction with recitals 15 and 23 thereof, also provides that, for a given week, the price of CBAM certificates is to correspond to the average of the closing prices of EU ETS allowances of the previous week. The objective of the CBAM is to ensure that imported products are subject to a regulatory system that applies carbon costs equivalent to those borne under the EU ETS, resulting in a carbon price that is equivalent for imports and domestic products. For the EU legislature, the CBAM can combat carbon leakage effectively only if it reflects closely the EU ETS price.
60 Thirdly, Article 9 of the contested regulation provides, subject to certain conditions, for a reduction in the number of CBAM certificates to be surrendered in order to take into account the carbon price actually paid in the country of origin for the declared embedded emissions.
61 Fourthly, Article 31(1) of that regulation provides that the CBAM certificates to be surrendered are to be adjusted to reflect the extent to which EU ETS allowances are allocated free of charge in accordance with Article 10a of Directive 2003/87 to installations producing, within the Union, the goods listed in Annex I to that regulation.
62 Fifthly, Article 27 of the contested regulation provides that the Commission is to take action to address practices of circumvention of that regulation. Article 27(2) thereof provides that practices of circumvention are to be defined as a change in the pattern of trade in goods, which stems from a practice, process or work, for which there is insufficient due cause or economic justification other than to avoid, wholly or partially, any of the obligations laid down in that regulation.
63 Sixthly, Article 27(3) of the contested regulation provides that the Commission is to continuously monitor the situation at Union level with a view to identifying practices of circumvention, including by way of market surveillance or on the basis of any relevant source of information, such as submissions by, and reporting from, civil society organisations. Moreover, under Article 30(6) of that regulation, that mission of monitoring the functioning of the CBAM also requires the Commission to evaluate practices of circumvention in its reports on the application of that regulation, the first of which is to be presented to the EU legislature no later than 1 January 2028 and every two years thereafter.
64 Seventhly, if an authorised CBAM declarant fails to surrender, by 31 May of each year, the number of CBAM certificates corresponding to the emissions embedded in goods imported during the previous calendar year, Article 26(1) of the contested regulation provides that that declarant is to be liable for the payment of a penalty identical to the excess emissions penalty set out in Article 16(3) of Directive 2003/87, increased pursuant to Article 16(4) of that directive, applicable in the year of importation of the goods. Such a penalty is to apply for each CBAM certificate that the authorised CBAM declarant has not surrendered. Moreover, Article 26(3) of that regulation provides that the payment of the penalty is not to release the authorised CBAM declarant from the obligation to surrender the outstanding number of CBAM certificates in a given year.
65 Ultimately, as summarised in recital 22 of the contested regulation, in order to preserve the effectiveness of the CBAM as a measure to prevent carbon leakage over time, that system has certain specific features when compared to the EU ETS, including with respect to the calculation of the price of CBAM certificates, the possibilities to trade CBAM certificates and their period of validity. Those specific features also ensure that the management of the CBAM system is not excessively burdensome, both in terms of obligations imposed on operators and administrative resources, while at the same time preserving a level of flexibility available to operators equivalent to that under the EU ETS.
66 In that regard, it should be noted that recital 24 of that regulation states that the fact that no cap is imposed on the number of CBAM certificates available to importers is aimed at preventing them from being able to carry forward and trade CBAM certificates, as that ability could have resulted in situations where the price for CBAM certificates would no longer reflect the evolution of the price in the EU ETS. Such a situation would weaken the incentive for decarbonisation, by favouring carbon leakage and impairing the overarching climate objective of the CBAM, and could also result in different prices for operators from different countries. The limits on the possibilities to trade CBAM certificates and to carry them forward are therefore justified by the need to avoid undermining the effectiveness and climate objective of the CBAM and to ensure even-handed treatment of operators from different countries. However, in order to preserve the possibility for importers to optimise their costs, that regulation provides for a system where authorities can repurchase a certain number of excess certificates from importers. Thus, in accordance with Article 23(2) and (3) of that same regulation, each year one third of the total number of CBAM certificates purchased by the authorised CBAM declarant during the previous calendar year may be repurchased at the price paid at the time of initial purchase of those certificates.
67 As regards the context of which the contested regulation forms a part, as stated in Article 1(1) thereof, as well as recitals 2, 5 and 6 thereof, it is intended to contribute towards attaining the targets fixed in the Paris Agreement and the European Climate Law. Recital 10 of that regulation states that it is part of the ‘Fit for 55’ legislative package, which is a comprehensive set of mutually reinforcing measures and initiatives aimed at achieving climate neutrality in the Union by 2050, and is an essential element of the Union’s toolbox for meeting the objective of a climate-neutral Union at the latest by 2050, in line with the Paris Agreement.
68 Furthermore, Article 1(2) of the contested regulation provides that the CBAM ‘complements’ the EU ETS, the environmental purpose of which has been recognised by the Court (see, inter alia, judgment of 21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraph 138), by applying an equivalent set of rules to imports into the customs territory of the Union of the goods referred to in Article 2 of that regulation.
69 It follows from paragraphs 51 to 68 of the present judgment that the sole objective of the contested regulation is the protection of the environment. Consequently, it cannot be argued that that objective is secondary to the budgetary and fiscal objective of that regulation, so that it incentivises circumvention of the CBAM.
70 It is true that, in its COM(2021) 564 final proposal, referred to in paragraph 27 of the present judgment, the Commission estimated at EUR 9.1 billion the amount of revenue that the CBAM should generate for 2030. However, the generation of such revenue is a consequence, not an objective, of the introduction of the CBAM. Furthermore, that revenue, which is relatively limited at EU level, is set to decrease, given that, as stated in paragraph 51 of the present judgment, the second objective of the contested regulation is to encourage third-country producers to reduce their greenhouse gas emissions. With that in mind, authorised CBAM declarants should be expected to acquire fewer and fewer CBAM certificates, since they are expected to surrender fewer of them.
71 Even if the contested regulation could be viewed as pursuing a two-fold purpose, its environmental purpose should be regarded as the predominant one, so that its alleged budgetary purpose is merely incidental. Therefore, in accordance with the case-law referred to in paragraph 44 of the present judgment, the Court finds that the EU legislature was correct in using Article 192(1) TFEU as the basis for that regulation.
72 The Republic of Poland’s argument to the effect that the revenue generated by the CBAM should be allocated to support low- and middle-income third countries must accordingly be rejected. Indeed, it is apparent from recitals 73 and 74 of that regulation, first, that they are merely programmatic in nature and, secondly, that they in no way provide for the allocation of revenue from the sale of CBAM certificates to financial assistance intended to encourage those countries’ adaptation to climate change and to mitigate the consequences of that change for them.
73 Moreover, the Republic of Poland’s line of argument relating to the risk of circumvention of the CBAM must be rejected as it is speculative in nature. In any event, it is apparent from paragraphs 62 and 63 of the present judgment that Article 27 and Article 30(6) of the contested regulation allow the Commission to take measures to remedy any practices of circumvention of the CBAM.
74 In the second place, as regards the second argument put forward by the Republic of Poland, to the effect that the CBAM has all the characteristics of a tax, it should be borne in mind, as is apparent from paragraph 69 of the present judgment, that the sole objective of the contested regulation is the protection of the environment. It follows that that argument must be held to be ineffective.
75 In the third place, as regards the fourth argument put forward by the Republic of Poland, to the effect that the CBAM is not a market-based measure, it should be noted, as is apparent from paragraph 59 of the present judgment, that, under the first subparagraph of Article 21(1) of the contested regulation, the price of CBAM certificates corresponds, on a weekly basis, to the average of the closing prices of EU ETS allowances on the auction platform for the previous week. Since the EU ETS is a market-based measure (see, to that effect, judgment of 21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraphs 142 and 147), the CBAM must itself be held to be indirectly market-based.
76 The actual cost to be borne by an authorised CBAM declarant arising from the quantity of CBAM certificates to be surrendered depends not directly on the number of certificates to be surrendered, but on their price on the market when their acquisition becomes necessary in order to cover that declarant’s greenhouse gas emissions. It follows that, unlike a duty, tax, fee or charge on CO2 consumption, the scheme introduced by the contested regulation, apart from the fact that it is not intended to generate revenue for the public authorities, does not in any way enable the establishment, applying a basis of assessment and a rate defined in advance, of an amount that must be payable per tonne of CO2 consumed for all the imports effected in a calendar year (see, by analogy, judgment of 21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraphs 142 and 143).
77 In the light of all the foregoing considerations, the Court finds that the single plea in law put forward by the Republic of Poland is unfounded and that the action must, therefore, be dismissed.
Costs
78 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 the Republic of Poland to be ordered to pay the costs and 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.
79 In accordance with Article 140(1) of the Rules of Procedure, according to which the institutions which have intervened in the proceedings are to bear their own costs, the Commission shall bear its own costs.
On those grounds, the Court (Second Chamber) hereby:
1. Dismisses the action;
2. Orders the Republic of Poland to bears its own costs and to pay the costs incurred by the European Parliament and the Council of the European Union;
3. Orders the European Commission to bear its own costs.
[Signatures]
* Language of the case: Polish.