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Legal Opinion

LCP BREF (Final Draft)

On the legality of the ranges of emission levels (BAT-AEL)for mercury and NOx for existing lignite combustion plants

For

DEBRIV – German Lignite Association

By

Dr. Wolf Friedrich Spieth

Niclas Hellermann, LL.M.

Date

15 March 2017

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LCP BREF (Final Draft)

On the legality of the ranges of emission levels (BAT-AEL)

for mercury and NOx for existing lignite combustion plants

A. Summary

(1) In the LCP BREF (Final Draft), critical emission level ranges for the emission of mer-

cury and NOx from lignite combustion plants were proposed. Should the COM confirm

these without corrections, the authorities of the member states would have to enforce

correspondingly tight limit values. The industry association DEBRIV expects that if that

was to happen there will be a threat of large scale shut-downs and/or exemption requests

arising throughout the EU.

(2) As the result of our review, it is clear that the proposed ranges of emission levels violate

EU law. Given its obligations to law and justice, German Federal Government (Bun-

desregierung) is obliged under constitutional law to request corrections from the COM

and the other Member States. It must not agree to the BAT conclusions, which have

been identified as contradictory to EU law.

Requirements under EU law regarding the BAT conclusions

(3) The BAT conclusions are decided on by the COM, with the participation of the Member

States, as implementing acts. The BAT conclusions must comply with Directive

2010/75/EU and Implementing Decision 2012/119/EU:

The drawing up of the BAT conclusions is subject to a primacy of technical ac-

curacy. The Sevilla Process must be transparent and objective, based on sound

technical and economic information.

Neither the European IPPC Bureau nor the Technical Working Group is author-

ised to make any politically influenced decisions. They must not exploit the Se-

villa Process for environmental policy disputes.

Only such techniques may be demanded as BAT that are economically and

technically available, taking into consideration their costs and advantages.

BAT may require only such a performance level if it can be met by the majority

of the plants concerned without forcing such plants to apply for an exception.

(4) Any breaches of these obligations would result in the BAT conclusions being unlawful,

unless they are corrected by the COM prior to their adoption. Such correction can be led

by an initiative of the Member States.

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Current ranges of emission levels for mercury and NOx contrary to EU law

(5) The ranges of emission levels for mercury and NOx currently proposed for lignite com-

bustion plants fail to meet these requirements in several respects.

Their drawing up is based on incomplete, unbalanced and flawed data and does

not comply with the primacy of technical accuracy.

An expert opinion by Prof. Kather (Technische Universität Hamburg) shows that

for mercury correctly derived ranges of emission levels for existing lignite com-

bustion plants (> 300 MWth) should comprise 5-9 µg/Nm³.

The addition of a footnote diminishes the significance of the upper value of the

range of emission levels for mercury which is inadmissible.

As to NOx, the German Federal Government has already deemed the upper value

of 175 mg/Nm³ to be disproportionate; it considers 190 mg/Nm³ to be appropri-

ate.

Industry associations assume that, due to excessively strict BAT-AELs, the

overwhelming majority of the existing lignite combustion plants across the EU

would only continue to be operated if they utilise comprehensive exceptions.

(6) These violations predominantly relate to the ranges of emission levels for mercury and

NOx for existing lignite combustion plants of > 300 MWth. However, they equally cast

doubt on the emission level ranges for lignite combustion plants of < 300 MWth.

The Member States must not agree to emission level ranges in breach of EU law

(7) The Member States participate in the adoption of the BAT conclusions and, in doing so,

are obliged under EU law to thoroughly review the regulations proposed by the COM.

The Member States must not support and agree to BAT conclusions that breach EU law.

(8) In regard to the Federal Republic of Germany, this results from constitutional law. The

participation of the German Federal Government in the committee procedures means an

exercise of executive power pursuant to Article 20(3) of the German Constitution and

therefore requires adherence to the law and to justice. If the Federal Government comes

to the conclusion that the proposed BAT-AELs are disproportionate and therefore in-

compatible with EU law, such conclusions must not be ignored or cast aside. Under its

obligation to observe law and justice, the Federal Government is required to urge the

COM and the other Member States to correct the proposed regulations. Ultimately – if,

prior to the voting, no correction can be reached – the German Federal Government

must withhold its consent. The representative of the Federal Republic of Germany is

constitutionally prohibited from knowingly supporting legal acts that have been found

to be unlawful.

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Table of Contents

A. Summary ............................................................................................................................2

B. Subject matter of the legal opinion ....................................................................................5

C. EU law requirements for the legality of BAT-AELs .........................................................7

I. Criteria of conformity with EU law ............................................................................8

1. Requirements for the process of drawing up BAT conclusions ...........................9

2. Material requirements for the BAT conclusions.................................................13

3. Further limitations established by EU law..........................................................16

II. The legality of the BAT-AEL for mercury................................................................16

1. Flawed database and inaccurate technical derivation .........................................16

2. Disproportionate performance level ...................................................................20

III. The legality of the BAT-AEL for NOx......................................................................23

1. Inaccurate technical derivation ...........................................................................23

2. Disproportionate performance level ...................................................................24

D. Role of the Member States in relation to the adoption of BAT conclusions ...................25

I. Participation of the Member States in the decision making......................................25

II. Obligation of the Member States to review and control COM proposals .................26

III. Duty of the German Federal Government to take action against BAT

conclusions that are not in conformity with EU law .................................................27

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B. Subject matter of the legal opinion

This legal opinion deals with the current revision of the best available techniques (BAT)

reference document for large combustion plants (LCP BREF) and the proposed range

of emission levels the release of for mercury and NOx emissions for existing lignite

combustion plants. A final draft of the reference document was presented in July 2016.

The revision will be concluded shortly.

Best available techniques reference documents (BREF) are drawn up, reviewed and up-

dated in the course of an exchange of information organised by the COM on the basis of

Directive 2010/75/EU (Sevilla Process). For certain industrial activities – such as, in

this case, the operation of large combustion plants – they describe the techniques and

the emissions and consumption levels that are currently being applied and then set out

the best available techniques (BAT) for such industries. The exchange of information

includes the involvements of the Member States, the industries in question, non-

governmental organisations and the COM. The COM is primarily represented by the

European Integrated Pollution Prevention and Control Bureau (EIPPCB). The EIPPCB

coordinates and controls the exchange of information. The other stakeholders send rep-

resentatives to what is known as the Technical Working Group (TWG). The TWG un-

dertakes the substantive work in the information exchange process.

The conclusions regarding the best available techniques (the BAT conclusions) form a

central part of a BREF. In this separate chapter of each BREF, the best available tech-

niques are described and, in particular, the emission levels associated with the best

available techniques (BAT-AEL) are indicated in the form of ranges of emission levels.

The BAT conclusions, when formally enacted, serve the authorities of the Member

States as a reference for establishing the permit conditions and general binding rules.

However, the binding nature of BAT-AEL is far-reaching due to the implications of Ar-

ticle 15(3) of Directive 2010/75/EU:

“The competent authority shall set emission limit values thatensure that, under normal operating conditions, emissions donot exceed the emission levels associated with the best availa-ble techniques as laid down in the decisions on BAT conclu-sions referred to in Article 13(5) [...].”

For existing plants, this must be ensured, pursuant to Article 21(3), within a period of

four years of the formal publication of the BAT conclusions.1

1 For implementation in the Federal Republic of Germany: sections 7(1a), 12(1a), 17(2a) and 48(1a) of theFederal Emissions Control Act (BImSchG), Bundestag printed matter 17/10486 of 15 August 2012;Landmann/Rohmer, BImSchG, section 3 mn. 117.

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In its final draft of the LCP BREF from June 2016 (LCP BREF Final Draft), the Sevil-

la Process proposed extremely strict ranges of emission levels for the emission of Hg

(mercury) and NOx (nitrogen oxides) from lignite combustion plants into the air.

Directive 2010/75/EU stipulates that since 2016 it is compulsory for mercury emissions

to be measured in large combustion plants on an annual basis, however, without setting

an emission limit value at the same time. Similarly, the previous 2006 version of the

LCP BREF did not propose emission levels for mercury. The ranges submitted in the

LCP BREF Final Draft were increasingly tightened across the on-going review process.

A first draft (dated 2013) provided for a range of emission levels of 0.5-10 µg/Nm³ for

existing lignite combustion plants. An interim version published by the EIPPCB in

April 2015 provided for a range of emission levels of 1-10 µg/Nm³. However, the upper

end of this range of emission levels was then lowered in the course of the final meeting

of the TWG in June 2015. As a result, the LCP BREF Final Draft now provides the fol-

lowing BAT-AEL for mercury emissions (Chapter 10.2.1.6, Table 10.9, p. 774):

Combustion plant totalrated thermal input

(MWth)

BAT-AELs (μg/Nm3)

Yearly average or average of samples obtained during one year

New plant Existing plant

< 300 < 1–5 < 1–10 (2)

≥ 300 < 1–4 < 1–7 (2)

(2) The lower end of the BAT-AEL range can be achieved with specific mercury abatement techniques.

With regard to NOx emissions, Directive 2010/75/EU provides an emission limit value

of 200 mg/Nm³ for existing lignite combustion plants with a rated thermal input of more

than 300 MWth.2 Initially, under the first draft of the LCP BREF (dated 2013), a range

of emission levels of 50-180 mg/Nm³ was proposed. However, the LCP BREF Final

Draft now has the following NOx emission requirements (Chapter 10.2.1.3, table 10.5,

p. 769):

2 Directive 2010/75/EU, Annex V, Part 1 No. 4.

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Combustion planttotal rated thermal input

(MWth)

BAT-AELs (mg/Nm3)

Yearly Average Daily Average

New plant Existing plant New plant Existing plant

< 100 100–150 100–270 155–200 165–330100–300 50–100 100–180 80–130 155–210

≥ 300, FBC boiler combusting coal and/orlignite and lignite-fired

PC boiler

50–85 < 85–150 (8)(9) 80–125 140–165 (10)

(8) The lower end of the range is considered achievable when using SCR.(9) The higher end of the range is 175 mg/Nm3 for FBC boilers put into operation no later than 7 January 2014 and forlignite-fired PC boilers.(10) The higher end of the range is 220 mg/Nm3 for FBC boilers put into operation no later than 7 January 2014 andfor lignite-fired PC boilers.

Against this background, this legal opinion prepared for the DEBRIV – German Lignite

Association addresses two different questions, namely:

i. whether the BAT-AEL provided for in the LCP BREF Final Draft for air emis-

sions of mercury and NOx comply with the requirements of EU law – in particu-

lar the formal requirements regarding the Sevilla Process and the material re-

quirements regarding the performance level that becomes mandatory – and,

therefore, could be enacted by the COM (see C. below), and

ii. whether the Member States, particularly the Federal Republic of Germany, are

entitled to contribute to BAT conclusions that contradict EU law, or whether

they must aim to ensure corrections (see D. below).

C. EU law requirements for the legality of BAT-AELs

Directive 2010/75/EU decisively increased the binding nature of BAT conclusions and

thus substantially reinforced the concept of BAT as a whole. The purpose of this legisla-

tive step was to achieve a high level of protection for the environment taken as a

whole.3 However, due to their binding nature and the relatively short implementation

periods imposed by EU law, the BAT conclusions are now all the more likely to prompt

considerable burdens on plant operators and impair their fundamental rights and free-

doms. As such, even without a thorough analysis of the requirements under EU law re-

garding the legality of the BAT conclusions, it is clear that the setting of BAT conclu-

sions does not take place in an extra-judicial vacuum, but rather is subject to legal limi-

tations relating to the process of drawing up the BAT conclusions and the associated

technical performance levels.

The legal limitations and requirements under EU law are the benchmark in assessing the

legality of the BAT conclusions, which will first be discussed and described (see I. be-

3 Directive 2010/75/EU, recital 16.

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low). Building on this basis, this opinion will examine the extent to which each of the

proposed BAT-AELs for mercury and NOx still comply with, or already exceed, the EU

law requirements (see II. and III. below).

I. Criteria of conformity with EU law

The BAT conclusions are adopted on and published by the COM as implementing acts

as defined by Article 291(3) TFEU.4 The procedure to enact the implementing measure

relies on Article 75(2) of Directive 2010/75/EU and Regulation (EU) No 182/2011

(committee procedure). The COM is granted the implementing powers that are required

for the establishment of BAT conclusions under Directive 2010/75/EU, Article 13(5)

and Article 75(2).

The legality of implementing acts (in this case, the BAT conclusions) presupposes that

the relevant implementing act is in accordance with the complete primary EU law as

well as the relevant secondary legislation.5 As the COM – in contrast to delegated acts

pursuant to Article 290 TFEU – does not have any powers of amendment the case of

implementing acts, any infringement of substantial requirements of the basic legal act

immediately renders the implementing act unlawful. 6 The safeguarding of these and

other legal limitations can easily be examined by the Community courts. 7

Specific requirements under EU law for the BAT conclusions arise first and foremost

from Directive 2010/75/EU, which is the relevant basic legal act. The legal require-

ments of Directive 2010/75/EU are further elaborated by the rules concerning guidance

on the collection of data and on the drawing up of BAT reference documents and on

their quality assurance referred to in Directive 2010/75/EU (Commission Implementing

Decision 2012/119/EU of 10 February 2012, hereinafter referred to as the Guidance).8

This Guidance, which was enacted as an implementing decision, does not rank higher

than the implementing decisions on BAT conclusions in the hierarchy of norms. There-

fore at first sight the Guidance does not seem to establish any independent requirements

on the legality of BAT conclusions. However, this Guidance constitutes an explicit

commitment by the COM and, moreover, a permissible and detailed specification of the

mandatory requirements provided for in Directive 2010/75/EU. This was the purpose of

enacting the Guidance.9 Consequently, if the BAT conclusions infringe any require-

ments of the Guidance, this also indicates an infringement of the requirements of Di-

rective 2010/75/EU, which are binding and, in any event, relevant. The Guidance thus

4 BeckOK UmweltR/Schulte/Michalk, BImSchG section 3 mn. 105; Landmann/Rohmer, BImSchG, sec-tion 3 mn. 116; see also Article 263 TFEU.

5 Grabitz/Hilf/Nettesheim, AEUV, Article 291 mn. 58.6 Grabitz/Hilf/Nettesheim, AEUV, Article 291 mn. 58; Hofmann, European Law Journal 2009, 482/491.7 Streinz, EUV/AEUV, Art. 291 AEUV mn. 23; Art. 263 Abs. 1 AEUV.8 The Commission was authorised to enact it pursuant to Article 13(3) of Directive 2010/75/EU.9 See Article 13(3) of Directive 2010/75/EU and recitals 13 and 39.

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supplements and specifies the legal examination criterion for the BAT conclusions; con-

sequently, it forms as well a criterion for the legality.

As regards the EU law requirements of Directive 2010/75/EU and the Guidance, a fur-

ther distinction should be made – notwithstanding certain overlaps – between rather

formal requirements regarding the process of drawing up the BAT conclusions and sub-

stantive requirements for the admissible performance levels associated with the BAT

conclusions. Besides these specific requirements, further limitations have been taken in-

to account, such as the distribution of competences between the EU and the Member

States with regards to energy policy issues.

1. Requirements for the process of drawing up BAT conclusions

Directive 2010/75/EU and the Guidance contain detailed requirements on the process by

which BREFs and the BAT conclusions must be drawn up and reviewed. According to

these requirements, the Sevilla Process is first and foremost subject to the primacy of

technical accuracy (see (a) below). Neither the EIPPCB nor the TWG are appointed or

authorised to make political decisions; they must not ignore scientific, objective or

technical principles by way of a majority vote (see (b) below). Any breaches of these

rules result in the implementing decision setting the BAT conclusions being unlawful,

unless any existing defects are corrected by the COM in time – e.g. upon the initiative

of the Member States prior to their adoption (see (c) below).

(a) Primacy of technical accuracy

The derivation of BAT conclusions must be in line with scientifically recognised and

objectively comprehensible standards and procedures. The drawing up must be based on

a sufficiently broad and correctly determined foundation of data. The TWG’s work re-

sults must be founded on evidence and be statistically secured. The entire process is ex-

clusively dedicated to achieving technical accuracy. This primacy of technical accuracy

as the guiding principle of the Sevilla Process appears in several requirements:

The process of determining BAT techniques shall be transparent and objective,

based on sound technical and economic information.10

The Guidance expressly labels a BREF as a technical document presenting factual

technical and economic information.11

The aim is to ensure an effective and active exchange of information resulting in

high-quality BREFs.12

10 Guidance, section 1.1.1.11 Guidance, section 2.1.12 Directive 2010/75/EU, recital 14; Guidance, section 4.3.

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The TWG members are involved in the information exchange primarily based on

their technical, economic, environmental or regulatory expertise.13

Directive 2010/75/EU and the Guidance also provide strict requirements in order to en-

sure that the BREFs are current (up to date), accurate and avoids errors:

The COM shall aim to update the BREFs not later than eight years after the publica-

tion of the previous version.14

There is a need to ensure that all the information that remains within the BREF is as

up to date, as consistent and as accurate as reasonably achievable.15

Reviewing the BREF explicitly includes removing obsolete or outdated information

as well as correcting errors and removing inconsistencies.16

In cases where the information on a technique comes from only one plant and/or on-

ly from plants located in third regions, a thorough assessment of the applicability

within the sector shall be carried out by the TWG.17

In accordance with good scientific and technical practice, Directive 2010/75/EU and the

Guidance attach particular importance to the quality of the relevant data basis:

Practical arrangements should be laid down, in particular to ensure that Member

States and stakeholders provide data of sufficient quality and quantity based on es-

tablished guidance.18

The data submitted should be at a sufficient level of detail so as to enable its as-

sessment and comparison with other data and to be used to conclude on the BAT.19

All data should be carefully checked in order to ensure completeness and to identify

and correct errors and inconsistencies. Submitted templates which are considered

largely incomplete or containing too many errors will not be taken into account by

the EIPPCB.20

The EIPPCB is to close the information gaps by actively looking for missing or in-

complete data.21 This is to say that the EIPPCB has an obligation to investigate and

to inquire.

13 Guidance, section 4.4.1.14 Directive 2010/75/EU, recital 13; Guidance, section 1.2.2.15 Guidance, section 1.2.3.16 Guidance, section 1.2.3.17 Guidance, section 2.3.8.18 Directive 2010/75/EU, recital 14.19 Guidance, section 5.2.3. para. 1.20 Guidance, section 5.2.3.21 Guidance, section 4.5.

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The EIPPCB controls and verifies the transmitted data and information and, if need

be, requests supplementation and specification.22

The BAT conclusions can contain statements which indicate when certain tech-

niques are not the BAT and thus have been deliberately excluded due to factors such

as poor or non-credible environmental performance, lack of availability, economics,

etc.23

If the quality or the completeness of the data decreases, the Guidance provides for a

particularly careful and thorough verification.24

Thus, it can be stated that Directive 2010/75/EU and the Guidance regard the Sevilla

Process and the development and drawing up of the BAT conclusions as a process that

achieves its findings in line with acknowledged scientific and technical rules in a com-

prehensible manner, free from internal inconsistencies and on the basis of an objective

and complete data foundation. These requirements are based on the consideration that

the BREFs are primarily based on objective technical descriptions whose value and jus-

tification is essentially determined by its technical accuracy. Conversely, a lack of tech-

nical foundation undermines the legitimation of the BAT conclusions.

(b) The TWG is not appointed to make political decisions

According to the above, the stakeholders in the Sevilla Process are in particularly hin-

dered from including any political considerations in this process. The TWG (including

its single members) and the EIPPCB have no environmental or industrial policy man-

date and the Sevilla Process is not a field of political dispute. Insofar, the TWG and the

EIPPCB must not use the Sevilla Process for other purposes.25

In particular the pluralistic composition26 of the TWG must not convey the erroneous

idea that the BAT conclusions might be determined in a process of political weighing.

Rather, it can be clearly derived from the requirements of Directive 2010/75/EU that the

Sevilla Process is subject to the primacy of technical accuracy. The pluralistic composi-

tion of the TWG has the single purpose of balancing experts’ views and monitoring the

required objective and technical approach in the drawing up of the BAT conclusions.

Despite this motive of the legislator, which is principally comprehensible, it is evident

that this pluralistic composition and the involvement of groups of stakeholders, who are

not primarily committed to technical accuracy but rather pursue political interests, put

22 Guidance, section 4.4.1. No. 2.23 Guidance, section 3.1.24 Guidance, section 4.5.25 This is acknowledged by the German Federal Government, Bundestag printed matter 18/8540 dated

24 May 2016, p. 8.26 Article 13 (1) of Directive 2010/75/EU: In order to draw up, review and, where necessary, update BAT

reference documents, the Commission shall organise an exchange of information between Member States,the industries concerned, non-governmental organisations promoting environmental protection and theCommission.

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the neutrality and technicality of the TWG’s work at risk. Instead of mutual balancing,

this construction gives room to the pursuit of political objectives if different groups –

with potentially differing motives – share an interest in a particularly strict, or a rather

generous, regulation. This is for example the case if, for reasons of industrial policy

(e.g. because a certain industry is not present in one’s own Member State), Member

States in coalition with environmental associations advocate a particularly strict regula-

tion, regardless of the technical requirements and facts.

Politically motivated decisions within the scope of the TWG would be highly problem-

atic, not least under the principles of democracy, which is firmly anchored in EU law.

The industrial and environmental associations involved are by no means legitimated in a

democratic way. Further the representatives sent by the individual Member States also

only have a weak democratic legitimation – at least in the context of EU law. Democrat-

ic legitimation in each case exists only with regard to the sending Member State and not

the others. The COM, which is essentially represented by the EIPPCB, cannot compen-

sate for such a shortfall of democratic legitimation. In addition, the EIPPCB is explicitly

limited to the coordination and support of the exchange of information.27 It is commit-

ted to the principles of expert competence, transparency and neutrality and not author-

ised to represent, favour of prefer certain positions of industrial or environmental policy

within the scope of the TWG work.28

Due to this constructional weakness of the TWG decision-making process, the voting

result as such cannot claim the primacy of technical accuracy; rather, the result and the

process must be checked for compatibility with the requirements of EU law require-

ments outlined above. The results of the TWG are not justified as a political decision,

but only to the extent its results are based exclusively on evidence and on accurate tech-

nical-economic considerations. It is in particular inadmissible and in no way compatible

with Directive 2010/75/EU to whitewash the enforcement of an industrial or environ-

mental policy as an objective technical derivation from factual information.

(c) The Sevilla Process is subject to essential procedural requirements

The requirements for the drawing up of the BAT conclusions are “essential procedural

requirements” as defined by Article 263(2) TFEU. An infringement of such procedural

requirements results in the measure (in the case at hand, the COM’s implementing deci-

sion to establish the BAT conclusions) being unlawful. The term of “procedural re-

quirements” in this context covers both provisions relating to the form and those regard-

ing the process of drawing up.29 In case law, the ECJ consistently proceeds from the as-

27 Guidance, section 4.5.28 Guidance, section 4.5.29 Streinz, AEUV, Article 263 mn. 79.

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sumption that those procedural requirements are essential that are apt to have an impact

on the content of the legal act.30

The requirements for the drawing up of the BAT conclusions also regulate and cover the

Sevilla Process, so that an infringement of such requirements within the scope of the

Sevilla Process results in the BAT conclusions being unlawful, unless the existing de-

fects are corrected prior to the formal enactment of the BAT conclusions, i.e. in the

committee procedure at the latest. According to the concept of Directive 2010/75/EU,

the drawing up of new BAT conclusions in terms of facts and content are shifted to the

Sevilla Process due to their mainly technical nature. However, such shifting from the

immediate sphere of the COM should obviously not lead to a situation where infringe-

ments of the detailed procedural requirements are extra-judicial and have no impact on

the legality of the BAT conclusions enacted on that basis. Just one argument against

such a view is the imminent risk that BAT conclusions that have been deducted in a

technically flawed manner will not be corrected anymore in the further course of the

process.

If, due to technical objections, there are considerable doubts as to the technical accuracy

and thus as to the lawful drawing up of the proposed BAT conclusions, the COM must

investigate the matter and, if need be, take corrective action. This is especially true if

such objections relate to BAT conclusions for which – contrary to the objective of the

Guidance – no consensus could be reached by the TWG.31 This is because the COM is

still responsible for the BAT conclusions as its own enforcement measures, notwith-

standing the shifting of the drawing up of the BAT conclusions to the Sevilla Process.

Such responsibility is not limited to their formal enactment and promulgation. Rather,

the COM must fully adopt and therefore take responsibility for the BAT conclusions

and their drawing up as their own conclusions.

2. Material requirements for the BAT conclusions

In addition to those requirements for the process of drawing up of the BAT conclusions,

Directive 2010/75/EU and the Guidance provide for clear limits of content regarding the

performance level that may be made binding under the BAT conclusions. The question

at issue here is how demanding the BAT conclusions may be in relation to the existing

plants and the techniques. If the requirements under BAT conclusions exceed that crite-

rion, they infringe the conditions on which the COM was conferred implementing pow-

ers under the basic legal act. The COM would oblige the Member States to enforce

30 Streinz, AEUV, mn. 79; ECJ, case 30/78, Destiller’s Company v Commission, ECR 1980, 2229 mn. 26;ECJ, case 829/79, Adam, ECR 1982, 269/290, mn. 24; CFI, case T-241/97, Stork Amsterdam v Commis-sion, ECR 2000, II-209 mn. 67.

31 Furthermore, if no consensus is reached, a more detailed differentiation is to be made: Claims for tighterregulations principally are suitable for being mentioned in the final chapter of a BAT reference document,Concluding Remarks and Recommendations for Future Work. Claims for more moderate BAT-AEL, incontrast, require particular examination and consideration within the scope of the BAT reference docu-ment chapter BAT conclusions.

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emission limit values exceeding what the Community legislator deemed to be justifiable

within the scope of the political weighing decision to be made exclusively by him and

what he approved by way of Directive 2010/75/EU.

(a) Definition of the BAT

Limitations as to content are set by the provisions of Article 3(10) of Directive

2010/75/EU regarding the terms of BAT. According to Article 3(10), “best available

techniques” means the most effective and advanced stage in the development of activi-

ties and their methods of operation which indicates the practical suitability of particular

techniques for providing the basis for emission limit values and other permit conditions

designed to prevent and, where that is not practicable, to reduce emissions and the im-

pact on the environment as a whole. Article 3(10) b) deems “available techniques” to be

those techniques developed on a scale which allows implementation in the relevant in-

dustrial sector, under economically and technically viable conditions, taking into con-

sideration the costs and advantages, whether or not the techniques are used or produced

inside the Member State in question, as long as they are reasonably accessible to the op-

erator.32 Article 3(10) c) considers “best” techniques those that are most effective in

achieving a high general level of protection of the environment as a whole.

This definition paves the way for a dynamic development of the BAT by linking it to

the on-going technological progress.33 The BREFs are updated at regular intervals to

ensure a constant process. The dynamic process does not take the economic capacities

of the individual plant operator or the technical conditions of an individual plant into

account. Rather, the BAT are the result of a more general view, in which the admissible

performance level is determined in relation to the current state of all plants of a given

type or of an industrial sector.34 To allow a dynamic development and in order to

achieve a high level of protection of the environment, the class of the worst performing

plants cannot be used as a benchmark. If they were to be, the dynamic process would

come to halt within a short period of time and the aim of a high level of protection of

the environment could not be reached. Conversely, however, it is just as inadmissible to

set the performance level so high that the majority of plants are “left behind”. The dy-

namic process would in this event outpace the actual development of the existing plants.

This would result in a halt of innovation and ultimately in the industries ceasing to exist.

The provisions of Directive 2010/75/EU, which promote techniques that that are effec-

tive in achieving a high general level of protection of the environment, support the ad-

missibility of demanding performance levels. However, clear limitations on such levels

are set by the reservation that such techniques must also be available in technical and

32 See also Guidance, section 2.3.7.2.7.33 Landmann/Rohmer, BImSchG, section 3 mn. 105.34 Feldhaus, NVwZ 2001, 4; Jarass, BImSchG, section 3 mn. 108.

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economic terms.35 Applying technically viable conditions presupposes, inter alia, that a

given technique is available, i.e. has been tested, proved, and is usable, at an industrial-

scale level.36 The state of the BAT thus evidently falls short of the scientifically able

state of the art, which may already have been achieved as soon as a given technique has

been confirmed under laboratory conditions or in experiments.37 In this context, it must

also be taken into account whether a technique can only be used at acceptable costs in

new plants or whether the spatial and technical conditions usually present in existing

plants rules out the use of such a technique. Technical suitability is present only if the

relevant success in reducing emissions seems to be acceptable in relation to the econom-

ic cost and can be economically supported in the conditions present in the relevant sec-

tor.

(b) Ratio of rule and exception pursuant to Article 15(3) and (4)

Further demands as to the performance level that can be pursued by the BAT conclu-

sions can be found in Article 15 of Directive 2010/75/EU.

Article 15(3) obliges the Member States to ensure that, under normal operating condi-

tions, the emissions of the industrial facilities in question do not exceed the emission

levels associated with the BAT as laid down in the decisions on the BAT conclusions.

Article 15(4) provides for possible exceptions from that rule. Deviating from Arti-

cle 15(3), the competent authority may, in specific cases, set less strict emission limit

values. Pursuant to Article 15(4), such exceptions may apply only where an assessment

shows that the achievement of emission levels associated with the best available tech-

niques would lead to disproportionately higher costs compared to the environmental

benefits due to the geographical location or the local environmental conditions or the

technical characteristics of the plant concerned.

Thus, Directive 2010/75/EU provides for a clearly determined ratio of rule and excep-

tion and thereby specifies the requirements that BAT conclusions may demand. The

performance level under the BAT conclusions must be of a nature that it forms a fitting

counterpart to the narrow exceptions under Directive 2010/75/EU, i.e. the performance

level required under the BAT conclusions needs to work in harmony with the limited

and strict regime of exceptions. As such the BAT conclusions must be structured in

such a way so as to be generally achieved under technically and economically viable

conditions by the vast majority of plants concerned. It would be disproportionate for the

BAT conclusions to force the majority of plants to seek exceptions. That requirement

applies to the BAT conclusions of a BREF as a whole. The correct weighting of the rule

and the exception not only to relates to an individual BAT conclusion or BAT-AEL, but

the BAT conclusions overall must safeguard the balanced ratio of rule and exception in

35 Jarass, BImSchG, section 3 mn. 103.36 Converse argument to Guidance, end of section 2.3.9.37 See in this respect Federal Constitutional Court, BVerfGE 49, 89/136.

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their construction. BAT conclusions which individually or together lead to comprehen-

sive applications for exceptions38 do not comply with the requirements of Directive

2010/75/EU. Rather they indicate a performance level which is too demanding and

therefore incompatible with EU law.

3. Further limitations established by EU law

In addition to the specific requirements imposed on the BAT conclusions, which flow

from Directive 2010/75/EU and the Guidance, the effect of other EU law must be ob-

served. This includes in particular the attribution of competences provided for under the

Treaty and the TFEU and the requirements regarding formal procedures.

These include in particular – as the core of the Member State’s sovereignty – the pro-

tected authority as to questions of energy supply.39 According to the provisions of the

Treaty, the EU only has a very limited regulatory competence as regards energy supply

issues. Interferences with the Member States’ energy policy must not be excessive by

establishing demanding BAT conclusions that may result in plants being forced out of

operation.40 In cases where such BAT conclusions not only lead to certain sources of

energy being burdened more than other ones, but also challenge such sources with re-

strictions and requirements that come close to a ban, it is likely that an intervention at

the Member States’ energy policy has occurred.

II. The legality of the BAT-AEL for mercury

The BAT conclusions proposed by the LCP BREF Final Draft and specifically the

BAT-AEL for mercury from existing lignite combustion plants do not comply with the

requirements set out above in multiple respects.

1. Flawed database and inaccurate technical derivation

From the outset, the drawing up of the BAT-AEL for mercury does not satisfy Directive

2010/75/EU and the Guidance. The determination of the range of emission levels is

based on incomplete, unbalanced and partially flawed data and on inaccurate basic as-

sumptions such as incorrectly converted US limits. Therefore, the derivation of the

range of emission levels does not meet the legally binding requirement of technical ac-

curacy.

38 “Comprehensive” in this context refers to the relevant group of plants concerned. New or existing plants,plants of a given size/age, etc. In each case, only the comparable plants that are to be categorised in onegroup are decisive.

39 Article 194(2) second sub-section TFEU defines “... a Member State's right to determine the conditionsfor exploiting its energy resources, its choice between different energy sources and the general structureof its energy supply”.

40 Spieth/Ipsen, NVwZ 2011, 536/538.

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(a) Flawed data basis

In a technical expert opinion which the industry association EURACOAL also intro-

duced in the Sevilla Process, Prof. Dr.-Ing. Alfons Kather (Technische Universität

Hamburg) points out that well performing plants had above-average representation in

the group of plants for which data was reported.41 For instance, data was only reported

in relation to three non-German lignite combustion plants with pulverized combustion.

Had their data been reported it should be expected, the opinion stated, that the non-

reported lignite combustion plants in Poland, Greece, the Czech Republic and Hungary

would have exhibited considerably higher mercury emission concentrations. Although,

the Guidance (section 5.2.1.) provides that information should primarily be gathered

from what are considered best performing plants (with respect to the environment taken

as a whole). In view of the small data basis (the approx. 80 plants reported represent on-

ly approx. 10% of the total plants operated), it is nonetheless questionable whether the

information submitted is sufficiently detailed to be able to assess it, compare it with

other data and to use it to deduce conclusions on the BAT as required by the Guidance

(section 5.2.3). In any case, special consideration is to be paid to the imbalance of the

data basis in favour of particularly well-performing plants when deducing the BAT con-

clusions. Because, despite such a pre-filtered data basis, the relevant comparison group

for deducing the BAT remains the entirety of the plants operated in the industrial sector,

not the pre-filtered group of plants on which data was reported. The latter would other-

wise lead to a selection of the best of those plants that were already deemed to be the

most well-performing plants. This would result in a potentiation in the performance lev-

el that is not provided for in Directive 2010/75/EU and is not desired by the European

legislator.

In addition to this imbalance, the data basis used for the BAT conclusions contains addi-

tional defects which are likely to have played a central role when the BAT conclusions

were deduced. The mercury emissions level reported for plant 23 V of 2,6 µg/Nm³ is –

as Prof. Kather shows42 – demonstrably wrong. In fact, more up-to-date measurements

taken by the operator of plant 23 V have shown that the values of the continuous meas-

urements (not yet validated results) exhibit a significant deviation from the lower values

to date. They are in the range of approx. 20-25 µg/Nm³ and therefore approx. ten times

the reported values. The operator of the plant had explicitly pointed this out in sec-

41 Prof. Dr.-Ing. Alfons Kather, Technische Universität Hamburg, Institute for Energy Technology: Expertopinion on BAT-associated emission levels (BAT-AELs) for mercury emissions into the air from existinglignite combustion plants with pulverized combustion in the LCP-BREF revision procedure of 28 July2016, p. 10.

42 Kather, p. 8.: The emissions value reported is 2.6 µg/Nm³. At the same time, the plant reported the largestquantity of Hg in the dry fuel (0.225mg/kg) of all lignite combustion plants reported in the collection ofdata. Such a high quantity of Hg in the fuel results in excessively high initial Hg concentrations in the rawgas of approx. 60 µg/Nm³. Without additional specific mercury minimisation techniques, the reportedemissions value would not be achievable with such high concentrations of raw gas and should thereforealready have been critically questioned as part of the TWG work.

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tion 11.18.3 of the document entitled “Review of the best available techniques (BAT)

reference document for large combustion plants (LCP-BREF – assessment of split view

rationals)”. Yet these values remained uncorrected and were used as the basis for deduc-

ing BAT conclusions. For the purpose of deducing technically correct BAT conclusions,

flawed values should have been ignored. The Guidance explicitly provides that implau-

sible environmental performance is to be ignored (Guidance, section 3.1.). In this case,

the EIPPCB has not satisfied its obligation to filter out flawed data (Guidance, sec-

tion 5.2.3., subsection 4). It was obvious from just a simple test (consideration of the

fuel that was used) that this data could not be accurate. In any case, once the operator

had pointed out that this data was inaccurate, there should not have been any further

consideration given to it. Since the – inaccurate – value was by far the lowest value for

large combustion plants over 300 MWth with pulverized combustion, it is obvious that

this value had an effect in relation to setting the BAT conclusions (BAT-AEL) which

are now being proposed and became causal. The LCP BREF Final Draft explicitly high-

lights these (flawed) emissions values in the grounds:

“The recently built plants (Plant 23 V of 890 MWth and Plant19 V of 74 MWth) have yearly average Hg emission concentra-tions lower than 3.5 µg/Nm³.” (LCP BREF Final Draft, p. 420)

Moreover, when deriving the BAT-AEL, four lignite-fired combustion plants with

higher reported mercury emissions were excluded from figure 5.31 of the LCP BREF

Final Draft, in a manner that, according to the expert opinion by Prof. Kather, was not

technically justifiable.43 The exclusion of this data is incomprehensible: the data set had

already been pre-filtered when it was collected, when only the best-performing plants

were even reported. The exclusion cannot be understood from a technical perspective,

either, since the plants that were not considered are precisely the only ones that have

continuous monitoring of mercury emissions. Therefore, the LCP BREF contradicts its

own assessment that the vast majority of plant have only reported periodic measure-

ments and that continuous measurements provide better knowledge of the actual per-

formance of the plant. 44

“Monitoring Hg continuously or periodically several times ayear permits a better knowledge of the performance of theplant as the behaviour of Hg throughout the plant is quitecomplex and may vary substantially at deduct level.” (LCPBREF Final Draft, p. 420).

It is exactly these plants that would have provided valuable indications of the mercury

emission values actually produced. Furthermore, it is not in line with a transparent, ob-

jective and neutral approach – something which the EIPPCB is obliged to take under the

43 Kather, p. 6, split views submitted by the Czech Republic.44 Guidance, sections 5.4.7.2 No. 1 and 5.4.7.3.

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Guidance (section 4.5) – to exclude these plants from figure 5.31 and from closer con-

sideration for the derivation of the BAT without indicating this or justifying it.

(b) Lack of consideration of measurement uncertainty

The vast majority of reported data on mercury emissions is based on individual meas-

urements that are subjected to a high degree of uncertainty and large fluctuations. The

relevant German regulation (i.e. the 13th Regulation for the Implementation of the Fed-

eral Emissions Protection Act – 13. BImSchV), for example, assumes an uncertainty of

continuous measurements of ± 6 µg/Nm³. This equals values which are near the upper-

most value on the proposed range of emission levels.

Data from individual measurements is not generally unsuited to serve as a basis for the

calculation of BAT. However, according to recognised technical principles, it should at

least be considered with a greater degree of caution and, when deducing BAT conclu-

sions, with lesser weighting than the results of continuous measurements. The BREF

does not demonstrate that this problem has been addressed in a technically sound man-

ner.

(c) No sufficient evidence for the achievability of the lower end of the BAT-AEL

The derivation of the lower value of the BAT-AEL value scale (1 µg/Nm³) does not sat-

isfy the primacy of technical accuracy. The derivation of the BAT conclusions is based

on the incorrect assumption that emission values of < 1 µg/Nm³ are achievable with

(new and existing) lignite combustion plants.45 The reported plant 18-2 V and plants of

Southern Co. (USA) and Oak Grove (USA) serve as the basis for this assumption.

Plant 18-2 V is equipped with stationary fluidized-bed combustion and addition-

ally with a bag filter. This is a filter technology which none of the lignite steam

generators with pulverized combustion that have been reported as part of the re-

working of the LCP BREF are equipped with. Therefore, plant 18-2 V uses a

technology which, in Prof. Kather’s assessment, is in no way representative for

the mercury emission values of lignite combustion plants with pulverized com-

bustion. Moreover, plant 18-2 V was listed as a plant with continuous measure-

ment in the information exchange and is therefore likely to have been dispropor-

tionately weighted when assessing BAT conclusions. In fact, individual meas-

urements occur there. Taking into account, that individual measurements exhibit

a significantly lower level of statistical certainty than continuous measurements,

the data from this plant cannot be used with the scientifically required level of

certainty to support a lower range of emission levels of < 1µg/Nm³.

The same is true for the US plants. The Southern Co. plant is not even opera-

tional yet. Therefore, its plant technique cannot serve as an indication of a tech-

45 Assessment of split view rationals, section 11.15.

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nique to be available on an industrial scale. In addition, it is an Integrated Gasi-

fication Combined Cycle (IGCC) plant that uses a gasification technique which,

according to the expert opinion by Prof. Kather, is also not representative for as-

sessing mercury emission values from lignite combustion plants with pulverized

combustion.

The average emission values of the two Oak Grove blocks during the three

months of the third quarter of 2015 were 2.5 µg/Nm³ (block 1) and 3.1 µg/Nm³

(block 2). Therefore, these plants cannot be cited as evidence of mercury values

of < 1 µg/Nm³ in lignite combustion plants with pulverized combustion, either.

Nevertheless, the BAT-AEL in question apply specifically to lignite combustion

plants.

According to the Guidance (section 2.3.8), the fact that the information on the technique

comes only from one plant or solely from plants located in third-party regions should

have led the TWG to carry out a particularly thorough assessment of the applicability of

the technique in the relevant sectors. This review did not occur; in any case, it is not set

out in a comprehensive manner. As such, there is no consideration given to these plants

having, at best, very marginal significance for the emission values that can be achieved

by the lignite combustion plants located in Europe.

Therefore, the evidence-based derivation of BAT conclusions, as stipulated by Directive

2010/75/EU and the Guidance is missing.

2. Disproportionate performance level

In addition, the performance level associated with the proposed the BAT-AEL is – par-

tially as a result of the defects set out in relation to the drawing up of the BAT-AEL –

disproportionate and far exceeds the performance level permitted under Directive

2010/75/EU and the Guidance.

(a) Plant technique unavailable

Under Article 3 No 10 of Directive 2010/75/EU, the technique classified as BAT must

be “available”, i.e. it must be developed on a scale which enables implementation under

economically and technically viable conditions, taking into consideration the costs and

advantages, which differentiates them from “emerging techniques”. The proposed

BAT-AEL for mercury does not satisfy these proportionality requirements.

In particular, the lower end of the BAT-AEL, which is additionally appreciated by

means of a footnote reference, was not evidenced as part of the exchange of information

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by using an operational reference plant. As such, there is a lack of evidence that this

plant technique has been developed on an industrial scale.46

Moreover, the technique regarded as BAT must also be available on economically ac-

ceptable terms. It is particularly important here to consider that a technique is only

deemed to be BAT if it can be used at viable costs, particularly also in relation to the

spatial and technical requirements typically found at existing plants. The Sevilla Process

has by no means proven this for the lower end of the BAT-AEL.

Additionally, serious concerns in relation to the proportionality of the established

BAT-AEL arise due to the considerable measurement uncertainties for mercury that re-

main even where measurements are continuous. Where there is a setting of the

BAT-AEL in the area of measurement uncertainty (as proposed), the result is a consid-

erable tightening of the requirements due to the fact that the relevant plant operator must

proceed much more conservatively and has to maintain sufficient distance from the

emission limit values so as to be able to safely ensure observance of these emission lim-

it values despite measurement uncertainty. These has not been adequately considered in

the information exchange.

Taken together, Prof. Kather states in his expert opinion that, on the basis of the – pre-

filtered – data that was the basis of the information exchange, only a range of emission

levels of 5-9 µg/Nm³ would equate to correctly derived BAT-AEL. Prof. Kather consid-

ered thereby,

that the converted US emission limit values for lignite combustion plants were

between 5.0 and 5.6 µg/Nm³;

that none of the lignite combustion plants with pulverized combustion has re-

ported values of less than 3 µg/Nm³ in the LCP-BREF revision;

that the three lowest values reported as part of the LCP-BREF revision of ap-

prox. 3 µg/Nm³ are based on large levels of measurement uncertainty;

that for many European countries only the best lignite combustion plants with

pulverized combustion were reported;

that there is a great deal of uncertainty regarding the continuous measurements

of mercury; and finally,

that there are very wide ranges of mercury content for the various lignites.

46 Guidance, section 2.3.9, requires that new techniques also be described in their own chapter and com-pared in terms of their performance and cost/advantage level with commercially/industrially availabletechniques.

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(b) BAT-AEL do not conform with the required rule to exception ratio

On the basis of information from their members, the industry associations EURACOAL

and DEBRIV unanimously consider that setting BAT-AEL for mercury from

1-7 µg/Nm³ would result, on a Union-wide level, that existing lignite plants can in the

future only be operated on the basis of exemptions under Article 15(4) of Directive

2010/75/EU and respective national transposing provisions of the Member States. Such

an extensive need for exemptions from the BAT conclusions is in itself a clear sign of

the disproportionately of BAT requirements.

Deriving the BAT-AEL for mercury on a comparatively small number of plants pays in-

sufficient consideration to the mercury content of the lignite employed, which varies

depending on the deposit and has a fundamental influence on the level of mercury emis-

sions achievable. For this reason, a comparatively small mercury emissions value re-

ported for a combustion plant allows only very limited conclusions as to the availability

of that technique. This brings into question the ability of combustion plant at which lig-

nite is used from deposits with higher mercury content to satisfy the BAT-AEL at rea-

sonable costs. The COM has just recently correctly affirmed its view that lignite com-

bustion plants can only be supplied with raw coal from their region, i.e. from opencast

mines which are generally less than 80-100km from the combustion plant (local deposit

sourcing).47 Again, this regional sourcing of coal creates the need for wide-ranging ex-

emptions, which suggest that the requirements of the BAT-AEL are excessive and no

longer covered by Directive 2010/75/EU.

(c) Footnote reference disproportionate

These deficiencies are intensified by the fact that the LCP BREF Final Draft provides

for a footnote according to which the lower value range can be achieved with abatement

techniques. This is because this – factually incorrect – footnote creates the impression

that the lower value range could be achieved with reasonable resources and irrespective

of the deposit used and the associated mercury content of the lignite employed. At the

same time, this leads to a diminution of the significance of the upper value of the value

range which is impermissible. In light of the provision of Article 15(3) of Directive

2010/75/EU, according to which the Member States must guarantee compliance with

the BAT-AEL, it is precisely the upper value of the BAT-AEL which creates an obliga-

tion for the Member States and, as a result, for the plant operators concerned. The result

of the exchange of information was that an upper value of 7 μg/Nm3 would correspond

to the state of the BAT. Irrespective of the fact that this upper value, too, has been cal-

culated incorrectly, the Directive 2010/75/EU and the Guidance do not permit any sub-

sequent tightening of these requirements in any form. However, the footnote results in

47 European Commission, DG Competition – C(2016) 6214 final, Case M.8056 – EPH / PPF Investments/Vattenfall Generation / Vattenfall Mining, Decision of 22 September 2016, section 4.2.1.2, para. 22 to 28with further references to earlier decisions.

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precisely such a subsequent tightening by virtue of it reducing the significance of the

upper value of the BAT-AEL. It therefore could be argued that the footnote does not

just have an informative purpose, but rather develops binding effect. If the footnote is

incorporated in the formal implementing decision of the COM on the setting the BAT

conclusions, then, given this legal formalisation, the COM would reveal that it considers

the footnote to also have legal significance and that it exerts more than just de facto

pressure on the Member States to disregard the (already inaccurate) upper value of the

range as authoritative. Such subsequent tightening exceeds the performance level which

the COM is permitted to set for the Member States on the basis of the implementing

powers assigned to it.

III. The legality of the BAT-AEL for NOx

1. Inaccurate technical derivation

Just as with the BAT-AEL for mercury, the BAT-AEL for NOx do not even satisfy the

formal requirements for the process of the drawing up of the BAT conclusions.

(a) Setting the BAT conclusions is in itself contradictory

Setting the upper value of the BAT-AEL for NOx does not fit the description of the

BAT techniques within the BAT conclusions. The BAT conclusions are contradictory

and thus do not satisfy the primacy of technical accuracy.

As part of the exchange of information, it was pointed out that, for existing lignite com-

bustion plants with a rated thermal input of > 300 MWth, it was only possible in general

to achieve values of approx. 190 mg/Nm³ with primary measures alone.48 Moreover, it

was established that avoiding NOx emissions using (exclusively) primary measures con-

firm with the state of the BAT.49 Therefore, the BAT does not demand the use of sec-

ondary measures (SNCR or SCR) which, moreover, are not available in a sufficiently

developed state for use in industrial boiler systems and, even if they were available,

could not be retrofitted due to cost and space reasons. Nevertheless, the LCP BREF Fi-

nal Draft now provides for an upper end to the range of just 175 mg/Nm³. An additional

result of the exchange of information was that, as a rule, this value can only be achieved

in the case of lignite combustion plants by employing secondary measures

(SNCR/SCR). In drawing such conclusions, the BREF contains a contradiction in and

of itself: if an NOx emissions reduction is recognised as a BAT purely on the basis of

primary measures, as has happened, then no value can be set as the upper value of the

range that even reference plants can achieve using secondary measures alone.

48 See, for instance, “Split view_Germany_NOx_lignite_existing_more _than_300_MWth_LCP.docx”,Germany, quoted according to Best Available Techniques Information System (“BATIS”:http://eippcb.jrc.ec.europa.eu/batis/console/forumIndex.jsp?fuseAction=forum_showPost&forumID=114777&postID=115245&readPost): This split view proposes to [S]et the upper end of the yearly averageBAT AEL range on 190 mg/m3 for NOx for existing lignite-fired PC boilers.

49 LCP BREF Final Draft, 10.2.1.3 (BAT 19), p. 768.

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(b) Derivation of the upper limit value not in line with the provisions of the Guidance

Moreover, the derivation of the BAT-AEL contradicts the clear provisions of the Guid-

ance (section 3.3), which state that the upper limit of the BAT-associated environmental

performance level-range is to be derived by considering the range of performance asso-

ciated with the application of the BAT under normal operating conditions. Under nor-

mal operating conditions, reference plants that do not have secondary measures (and

nevertheless correspond to BAT) do not achieve the upper value of the BAT-AEL of

175 mg/Nm³, but rather, according to the results of the exchange of information, gener-

ally 190 mg/Nm³ at best. In accordance with the Guidance (section 3.3), therefore, only

this value may be allowed to qualify as the upper end of the BAT-AEL. Otherwise, this

would in substance suggest secondary measures had been employed that were in fact

not employed at these plants.

2. Disproportionate performance level

(a) Plant techniques technically and economically unavailable

The results of the exchange of information demonstrate also that there are no primary

measures known or available on reasonable technical and economic terms that allow ex-

isting lignite plants to ensure compliance with an emission value of 175 mg/Nm³ under

all operating conditions. Therefore, the BAT-AEL set with an upper value of

175 mg/Nm³ is based on disproportionate performance levels. In the context of the issue

of economic availability, it must also be taken into account whether a technique can be

used at acceptable costs only in newly erected plants or whether the spatial and tech-

nical requirements usually present in existing plants rule out a technique from being

used that is available for new plants.

The Federal Government also considers an upper value of the range of 175 mg/Nm³ to

be disproportionate. In a split view50, the representative of the Federal Republic of

Germany stipulates in the TWG that the use of primary measures (i.e. operating a plant

without SNCR or SCR) corresponds to the state of the BAT. However, an upper end to

the range of emission levels of 175 mg/Nm³ did not, it was explained, correspond to the

environmental performance of most of the reference plants, which had predominantly

reported values of between 160 and 200 mg/Nm³. The representative of the Federal Re-

public of Germany correctly considers that additional potential for reducing emissions

on the basis of primary techniques is limited. Furthermore, it is correctly identified that

retrofitting denitrification systems is extremely cost-intensive and, in comparison to the

marginal additional emission savings, disproportionate.

50 See, for instance, “Split view_Germany_NOx_lignite_existing_more _than_300_MWth_LCP.docx”,Germany, quoted according to Best Available Techniques Information System (“BATIS”:http://eippcb.jrc.ec.europa.eu/batis/console/forumIndex.jsp?fuseAction=forum_showPost&forumID=114777&postID=115245&readPost).

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The Federal Government also reaffirmed this – correct – assessment recently:

“It is the federal government’s opinion that an upper range ofemission levels for nitrogen oxide of 190 mg/m³ should beconsidered appropriate on the basis of the available data inconjunction with the best available techniques described in thereference document.” (Bundestag printed matter 18/8540 of24 May 2016, p. 8)

(b) Exception threatens to become the rule

In the event of the stringent BAT-AEL for NOx emissions with an upper value of

175 mg/Nm³, the industry associations EURACOAL and DEBRIV expect comprehen-

sive exemption applications will be necessary. Particularly for existing plants, the

prevalent technical and spatial conditions mean that a retrofit would not be achievable

on reasonable technical and economic terms. This is all the more true as here the emis-

sion value of 175 mg/Nm³ can be achieved exclusively by employing secondary

measures, which none of the existing lignite combustion plants (over 300 MWth) pos-

sess.

D. Role of the Member States in relation to the adoption of BAT conclusions

Considering that the BAT conclusions are contrary to EU law (see C above.), this raises

the follow-up question as to what extent the Member States and, in particular, the Fed-

eral Republic of Germany or rather the Federal Government, are prevented from con-

senting to the adoption of the BAT conclusions.

The Federal Government, in conjunction with other Member States, has an ability to is-

sue a veto in the proceedings for issuing the BAT conclusions (see I. below). In the con-

text of its participation, moreover, the Federal Government has a duty to comprehen-

sively review the COM’s regulatory proposal (see II. below). In the event – as is the

case here – that regulatory proposals contradict EU law, the Federal Government, on the

basis of being constitutionally bound to law and justice, is obliged to work towards cor-

recting the violations and, as a final consequence, to refuse to give its consent (see III.

below).

I. Participation of the Member States in the decision making

Pursuant to Article 75(2) of Directive 2010/75/EU, the BAT conclusions are adopted in

the form of implementing acts. These implementing acts are passed in the committee

procedure in accordance with Regulation (EU) No 182/2011. In regard to the adoption

of the BAT conclusions, the “examination procedure” is applied.51As a result, the

Member States have a central role.

51 Article 75 of Directive 2010/75/EU, Article 5(2) of Regulation (EU) No 182/2011

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Whilst conventional implementing acts are generally rendered in the advisory procedure

under Article 5(3) Regulation (EU) No 182/2011, which provides for a dominant role

for the COM and limits Member State participation, this is fundamentally different

when it comes to implementing acts with general scope – such as the BAT conclu-

sions.52 The examination procedure to be applied here shifts the weight to the Member

States and grants them a veto right vis-à-vis the regulatory proposal submitted by the

COM.53 For this purpose, the Member States appoint representatives to a committee

chaired by a COM representative (who has no voting right).54 This committee gives its

opinion on the COM’s regulatory proposal with a qualified majority. The COM may on-

ly adopt the implementing act if the committee issues a supportive opinion.55 The veto

right is intended to ensure “that implementing acts cannot be adopted by the COM if

they are not in accordance with the opinion of the committee”.56

By virtue of its option to refuse consent and to organise a veto position with other

Member States, the Federal Government has a potentially effective tool with which it

can exercise considerable influence upon the adoption of BAT conclusions.

II. Obligation of the Member States to review and control COM proposals

Within the scope of their participation in the adoption on the BAT conclusions, the

Member States are entitled, but also obliged, to carry out an in-depth and comprehen-

sive review of the regulations proposed by the COM and to exercise its voting right in a

diligent manner.

Article 291(3) TFEU provides that the Member States shall control the COM’s exercise

of implementing powers. This right of control involves an allocation of competence to

the Member States under EU law. Such an allocation of competence, in accordance with

general principles of state organisation, implies a responsibility to exercise said authori-

ty. Thus the addressee is not allowed to waive – either wholly or partially – the function

allocated, here the control of the COM. The Member States consequently have to exer-

cise their right of control in the way of an obligation to control.

The duty to carry out a review also encompasses an obligation to check whether the

proposed regulation is compatible with EU law. The relevant criteria to be met in this

context are all requirements under EU law which the proposed regulation has to satisfy

(see in this respect C above). The inclusion of the Member States in the committees ad-

ditionally serves to jointly determine “how their implementing acts are to be controlled

by the EU bodies”.57 The review thus also fully deals with the suitability of a measure.

52 Cf. recital 11 of Regulation (EU) No 182/2011.53 Article 5(3) Regulation (EU) No 182/2011, see also Calliess/Ruffert, EUT/TFEU, Article 291 TFEU para.

15.54 Article 3(2) of Regulation (EU) No 182/2011.55 Article 5(2) and (3) of Regulation (EU) No 182/2011.56 Recital 11 of Regulation (EU) No 182/2011.57 Grabitz/Hilf/Nettesheim, Article 291 TFEU mn. 45.

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It is intended to prepare a regulation, by including the expertise at the level of the Mem-

ber States and the EU that is convincing beyond national or European interests “as a co-

herent and independent measure”.58

III. Duty of the German Federal Government to take action against BAT conclusions

that are not in conformity with EU law

In addition to its duty to participate and review the proposed regulation, the German

Federal Government is also obliged under constitutional law to refuse its support for the

adoption of implementing acts that would violate EU law.

From the perspective of German constitutional law, the Federal Republic of Germany,

in participating in the committee procedure under EU law, at the same time exercises

executive power in the sense of Article 20(3) of the German Constitution and is thus

bound to law and justice. The concept of ‘executive power’ comprises in relation to Ar-

ticle 20(3) German Constitution as a catch-all provision any and all state activities ex-

cept for those of the formal legislator and the judiciary.59 It thus also covers any partici-

pation by the German Federal Government in decisions under EU law, at least if and to

the extent the Federal Republic of Germany – as in the case at issue – is granted a corre-

sponding procedural position.

If the German Federal Government, in performing its duty to review, comes to the con-

clusion that by confirming the BAT conclusions proposed by the COM, it is intended to

confirm incorrectly drawn up or unreasonably strict and thus unlawful BAT conclu-

sions, this result of its review must not be ignored or put aside. Due to its binding con-

stitutional obligation to observe law and justice, it is required to urge the COM and the

other Member States, likewise entitled to vote, to correct the regulations incompatible

with EU law. Ultimately – if prior to the voting, it is impossible to reach a correction of

the proposed regulation for producing conditions in compliance with EU law – the

German Federal Government has to withhold its consent. The representative of the Fed-

eral Republic of Germany is constitutionally prohibited from knowingly supporting le-

gal acts that have been found to be unlawful by the constitution.

In the present case, the COM, with the BAT conclusions, submitted the proposal for an

implementing act which, in the opinion of the German Federal Government60, is unrea-

sonably strict, at least in part, and thus does not comply with the requirements defined

by EU law. Considering the above, the Federal Government is thus obliged to work to-

wards a correction and to prevent, to the extent possible, the implementation of

58 von der Groeben/Schwarze/Hatje, Article 291 TFEU mn. 38.59 Mauntz/Dürig, GG, Article 20 mn. 7160 See, for instance, “Split view_Germany_NOx_lignite_existing_more _than_300_MWth_LCP.docx”,

Germany, quoted according to Best Available Techniques Information System (“BATIS”:http://eippcb.jrc.ec.europa.eu/batis/console/forumIndex.jsp?fuseAction=forum_showPost&forumID=114777&postID=115245&readPost).

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measures that are not compatible with EU law. This includes the refusal of consent in

the committee procedure if the COM should fail to remedy the obvious defects.

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