Société Arcelor Atlantique et Lorraine and Others v Premier ministre, Ministre de l’Écologie et du Développement durable and Ministre de l'Économie, des Finances et de l'Industrie.

The applicant was a steel producing company with installations for the production of pig iron and steel in France, Spain, Germany and Belgium. It sought judicial review of a decision by the French authorities not to revoke the decree implementing Directive 2003/87 in France.. In support of its application the applicant submits that the contested provisions infringe its fundamental rights to property and the pursuit of an economic activity, by requiring it to operate its plants under economic conditions that are unsustainable. The applicant also invoked a breach of the principle of equality, alleging that other sectors in direct competition with the applicant and with comparable or even higher emissions of greenhouse gases, such as producers of non-ferrous metals and chemicals, are not subject to the Directive. The Conseil d'Etat dismissed the application in all respects save breach of the equality principle which it saw as a challenge to Directive 2003/87 itself rather than the constitutionality of the implementation. The Conseil d'Etat referred the issue of equal treatment to the ECJ: Case C-127/07.The ECJ held that the principle of equal treatment did not affect the validity of the EU ETS in so far as it makes the greenhouse gas emission allowance trading scheme applicable to the steel sector without including the chemical and non-ferrous metal sectors in its scope. A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment. Where a Community legislative act is concerned, it is for the Community legislature to demonstrate the existence of objective criteria put forward as justification and to provide the Court with the necessary information for it to verify that those criteria do exist. When exercising its discretion in the field of the environment, the Community legislature must, in addition to the principal objective of protecting the environment, fully take into account all the interests involved. In examining the burdens associated with various possible measures, it must be considered that, even if the importance of the objectives pursued is such as to justify even substantial negative economic consequences for certain operators, the Community legislature’s exercise of its discretion must not produce results that are manifestly less appropriate than those that would be produced by other measures that were also suitable for those objectives. Consideration of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Directive 96/61, as amended by Directive 2004/101, from the point of view of the principle of equal treatment has disclosed nothing to affect its validity in so far as it makes the greenhouse gas emission allowance trading scheme applicable to the steel sector without including the chemical and non-ferrous metal sectors in its scope. First, the allowance trading scheme introduced by Directive 2003/87 is a novel and complex scheme whose implementation and functioning could have been disturbed by the involvement of too great a number of participants, and, second, the original definition of the scope of Directive 2003/87 was dictated by the objective of attaining the critical mass of participants necessary for the scheme to be set up. In view of the novelty and complexity of the scheme, the original definition of the scope of Directive 2003/87 and the step-by-step approach taken, based in particular on the experience gained during the first stage of its implementation, in order not to disturb the establishment of the system were within the discretion enjoyed by the Community legislature.