# C_2014303EN.01002102.xml

| 8.9.2014 | EN | Official Journal of the European Union | C 303/21 |
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8.9.2014

EN

Official Journal of the European Union

C 303/21

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Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 16 June 2014 — DOW Benelux and Others v Staatssecretaris van Infrastructuur en Milieu

(Case C-295/14)

2014/C 303/28

Language of the case: Dutch

Referring court

Referring court

Raad van State

Parties to the main proceedings

Parties to the main proceedings

Appellants: DOW Benelux BV, Esso Nederland BV, ExxonMobil Chemical Holland BV, Kuwait Petroleum Europoort BV, Rütgers Resins BV, Koppers Netherlands BV, Yara Sluiskil BV, BP Raffinaderij Rotterdam BV, Zeeland Refinery NV, ESD-SIC BV, DSM Delft Permit BV, SABIC Innovative Plastics BV, Shell Nederland Raffinaderij BV, Shell Nederland Chemie BV, Akzo Nobel Chemicals BV, Akzo Nobel Industrial Chemicals BV, Emerald Kalama Chemical BV, Nedmag Industries Mining & Manufacturing Holding BV, Rosier Nederland BV, Nederlandse Aardolie Maatschappij BV, Tata Steel IJmuiden BV, Chemelot Site Permit BV, Eska Graphic Board BV, Koch HC Partnership BV

Appellants:

Respondent: Staatssecretaris van Infrastructuur en Milieu

Respondent:

Questions referred

Questions referred

| 1. | Must the fourth paragraph of Article 263 of the Treaty on the Functioning of the European Union be interpreted as meaning that operators of installations to which, as from the beginning of 2013, the emissions-trading rules laid down in 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 Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32) have been applicable, with the exception of operators of the installations referred to in Article 10a(3) of that directive and of newcomers, could undoubtedly have brought an action before the General Court seeking the annulment of Commission Decision 2013/448/EU of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2013 L 240, p. 27), in so far as the uniform cross-sectoral correction factor is determined by that decision? |
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1.

Must the fourth paragraph of Article 263 of the Treaty on the Functioning of the European Union be interpreted as meaning that operators of installations to which, as from the beginning of 2013, the emissions-trading rules laid down in 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 Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32) have been applicable, with the exception of operators of the installations referred to in Article 10a(3) of that directive and of newcomers, could undoubtedly have brought an action before the General Court seeking the annulment of Commission Decision 2013/448/EU of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2013 L 240, p. 27), in so far as the uniform cross-sectoral correction factor is determined by that decision?

| 2. | Is Decision 2013/448/EU, in so far as the uniform cross-sectoral correction factor is determined thereby, invalid because that decision was not adopted in accordance with the regulatory procedure with scrutiny referred to in Article 10a(1) of Directive 2003/87/EC? |
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2.

Is Decision 2013/448/EU, in so far as the uniform cross-sectoral correction factor is determined thereby, invalid because that decision was not adopted in accordance with the regulatory procedure with scrutiny referred to in Article 10a(1) of Directive 2003/87/EC?

| 3. | Is Article 15 of Commission Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2011 L 130, p. 1) contrary to Article 10a(5) of Directive 2003/87/EC because the former article precludes emissions from electricity generators from being taken into account in the determination of the uniform cross-sectoral correction factor? If so, what are the consequences of that conflict for Decision 2013/448/EU? |
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3.

Is Article 15 of Commission Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2011 L 130, p. 1) contrary to Article 10a(5) of Directive 2003/87/EC because the former article precludes emissions from electricity generators from being taken into account in the determination of the uniform cross-sectoral correction factor? If so, what are the consequences of that conflict for Decision 2013/448/EU?

| 4. | Is Decision 2013/448/EU, in so far as the uniform cross-sectoral correction factor is determined thereby, invalid because that decision is based on, inter alia, data submitted pursuant to Article 9a(2) of Directive 2003/87/EC without the provisions to be adopted pursuant to Article 14(1), referred to in Article 9a(2), having been established? |
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4.

Is Decision 2013/448/EU, in so far as the uniform cross-sectoral correction factor is determined thereby, invalid because that decision is based on, inter alia, data submitted pursuant to Article 9a(2) of Directive 2003/87/EC without the provisions to be adopted pursuant to Article 14(1), referred to in Article 9a(2), having been established?

| 5. | Is Decision 2013/448/EU, in so far as the uniform cross-sectoral correction factor is determined thereby, contrary to, in particular, Article 296 of the Treaty on the Functioning of the European Union or Article 41 of the Charter of Fundamental Rights of the European Union (1) on the ground that the quantities of emissions and emission allowances which determined the calculation of the correction factor are set out only partially in that decision? |
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5.

Is Decision 2013/448/EU, in so far as the uniform cross-sectoral correction factor is determined thereby, contrary to, in particular, Article 296 of the Treaty on the Functioning of the European Union or Article 41 of the Charter of Fundamental Rights of the European Union (1) on the ground that the quantities of emissions and emission allowances which determined the calculation of the correction factor are set out only partially in that decision?

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| 6. | Is Decision 2013/448/EU, in so far as the uniform cross-sectoral correction factor is determined thereby, contrary to, in particular, Article 296 of the Treaty on the Functioning of the European Union or Article 41 of the Charter of Fundamental Rights of the European Union on the ground that that correction factor was determined on the basis of data of which the operators of the installations involved in emissions trading could not have become aware? |
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6.

Is Decision 2013/448/EU, in so far as the uniform cross-sectoral correction factor is determined thereby, contrary to, in particular, Article 296 of the Treaty on the Functioning of the European Union or Article 41 of the Charter of Fundamental Rights of the European Union on the ground that that correction factor was determined on the basis of data of which the operators of the installations involved in emissions trading could not have become aware?

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(1)  OJ 2000 C 364, p. 1.

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