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Choice between energy sources (CJEU) C-5/16

Updated: Jan 8, 2022

Poland v. EP and Council




Decision to allocate funds to administer the emission trading were taken on the legal basis of Art. 192(1) TFEU for environmental reasons, requiring OLP. Yet, Poland claims that these measures significantly affect its choice between energy sources because of the specific effects of the measure. Energy sources measures require Art. 192(2)c TFEU as a legal basis, entailing unanimity in the Council. Also, the European Council (not a EU institution) had fixed the date for the fund later in time.

First of all the CJEU had to decide whether or not specific effects of measures must be taken into account

→ No, the legal basis test is an objective test, no requirement to look at the specific consequences.

Secondly the CJEU had to rule whether or not a decision of the European Council (not a EU institution) is binding.

→ No, it is a political organ of a different nature. It cannot legally bind the Council nor the EP.

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