# C_2016402EN.01000702.xml

| 31.10.2016 | EN | Official Journal of the European Union | C 402/7 |
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31.10.2016

EN

Official Journal of the European Union

C 402/7

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Judgment of the Court (Sixth Chamber) of 8 September 2016 (request for a preliminary ruling from the Nacka tingsrätt — Mark- och miljödomstolen — Sweden) — Borealis AB and Others

(Case C-180/15) (1)

1

((Reference for a preliminary ruling - Scheme for greenhouse gas emission allowance trading within the European Union - Directive 2003/87/EC - Article 10a - Method of allocating free allowances - Calculation of the uniform cross-sectoral correction factor - Decision 2013/448/EU - Article 4 - Annex II - Validity - Determination of the product benchmark for hot metal - Decision 2011/278/EU - Annex I - Validity - Article 3(c) - Article 7 - Article 10(1) to (3) and 8 - Annex IV - Free allowances for the consumption and for the export of heat - Measurable heat exported to private households - Prohibition on double-counting of emissions and of double allocation of allowances))

(2016/C 402/09)

Language of the case: Swedish

Referring court

Referring court

Nacka tingsrätt — Mark- och miljödomstolen

Parties to the main proceedings

Parties to the main proceedings

Applicants: Borealis AB, Kubikenborg Aluminum AB, Yara AB, SSAB EMEA AB, Lulekraft AB, Värmevärden i Nynäshamn AB, Cementa AB, Höganäs Sweden AB

Applicants:

Defendant: Naturvårdsverket

Defendant:

Operative part of the judgment

Operative part of the judgment

| 1. | Examination of the first, second and thirteenth questions has revealed no factor of such a kind as to affect the validity 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. |
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1.

Examination of the first, second and thirteenth questions has revealed no factor of such a kind as to affect the validity 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.

| 2. | Examination of the fifth question referred has revealed no factor of such a kind as to affect the validity of Annex I to Decision 2011/278. |
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2.

Examination of the fifth question referred has revealed no factor of such a kind as to affect the validity of Annex I to Decision 2011/278.

| 3. | Article 4 of, and Annex II to, 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 are invalid. |
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3.

Article 4 of, and Annex II to, 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 are invalid.

| 4. | The temporal effects of the declaration of invalidity of Article 4 of, and Annex II to, Decision 2013/448 are limited so that, first, that declaration does not produce effects until 10 months following the date of delivery of the judgment in Borealis Polyolefine and Others (C-191/14, C-192/14, C-295/14, C-389/14 and C-391/14 to C-393/14, EU:C:2016:311), so as to enable the European Commission to adopt the necessary measures and, second, measures adopted during that period on the basis of the invalidated provisions cannot be called into question. |
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4.

The temporal effects of the declaration of invalidity of Article 4 of, and Annex II to, Decision 2013/448 are limited so that, first, that declaration does not produce effects until 10 months following the date of delivery of the judgment in Borealis Polyolefine and Others (C-191/14, C-192/14, C-295/14, C-389/14 and C-391/14 to C-393/14, EU:C:2016:311), so as to enable the European Commission to adopt the necessary measures and, second, measures adopted during that period on the basis of the invalidated provisions cannot be called into question.

| 5. | Article 10a 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 Community and amending Council Directive 96/61/EC as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, and Article 10(1) to (3) and (8) of Decision 2011/278 must be interpreted as permitting, in order to avoid a double allocation, non-allocation of allowances to a heat benchmark sub-installation when it exports, to private households, heat which it has recovered from a fuel benchmark sub-installation. |
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5.

Article 10a 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 Community and amending Council Directive 96/61/EC as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, and Article 10(1) to (3) and (8) of Decision 2011/278 must be interpreted as permitting, in order to avoid a double allocation, non-allocation of allowances to a heat benchmark sub-installation when it exports, to private households, heat which it has recovered from a fuel benchmark sub-installation.

| 6. | Article 10(8) of Decision 2011/278 must be interpreted as precluding free greenhouse gas emission allowances being allocated to an operator for the consumption, in a heat benchmark sub-installation, of heat taken into account in connection with a fuel benchmark sub-installation. |
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6.

Article 10(8) of Decision 2011/278 must be interpreted as precluding free greenhouse gas emission allowances being allocated to an operator for the consumption, in a heat benchmark sub-installation, of heat taken into account in connection with a fuel benchmark sub-installation.

| 7. | Article 7 of, and Annex IV to, Decision 2011/278 must be interpreted as allowing a Member State, when collecting the data covered by those provisions, not to take into account all the emissions related to the heat production exported by a heat benchmark sub-installation to private households in order to avoid double counting. |
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7.

Article 7 of, and Annex IV to, Decision 2011/278 must be interpreted as allowing a Member State, when collecting the data covered by those provisions, not to take into account all the emissions related to the heat production exported by a heat benchmark sub-installation to private households in order to avoid double counting.

| 8. | Article 10a(1) and (4) of Directive 2003/87, as amended by Directive 2009/29, and Article 10(3) of Decision 2011/278 must be interpreted as permitting the non-allocation of additional free greenhouse gas emission allowances related to the production of measurable heat by burning waste gases generated by a hot metal benchmark installation, when the amount of greenhouse gas emission allowances determined based on the heat benchmark is lower than the median annual historical emissions related to the production of that heat. |
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8.

Article 10a(1) and (4) of Directive 2003/87, as amended by Directive 2009/29, and Article 10(3) of Decision 2011/278 must be interpreted as permitting the non-allocation of additional free greenhouse gas emission allowances related to the production of measurable heat by burning waste gases generated by a hot metal benchmark installation, when the amount of greenhouse gas emission allowances determined based on the heat benchmark is lower than the median annual historical emissions related to the production of that heat.

| 9. | Article 7 of, and Annex IV to, Decision 2011/278 must be interpreted as not precluding a Member State, when collecting the data covered by those provisions, from adjusting the figures obtained by the Member State so that the greenhouse gas emissions attributable to the combustion of waste gases by a heat benchmark sub-installation are equivalent to those from the combustion of natural gas, in so far as a product benchmark takes account of emissions linked to the production of waste gases. |
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9.

Article 7 of, and Annex IV to, Decision 2011/278 must be interpreted as not precluding a Member State, when collecting the data covered by those provisions, from adjusting the figures obtained by the Member State so that the greenhouse gas emissions attributable to the combustion of waste gases by a heat benchmark sub-installation are equivalent to those from the combustion of natural gas, in so far as a product benchmark takes account of emissions linked to the production of waste gases.

| 10. | Article 3(c), of Decision 2011/278 must be interpreted as meaning that the concept of ‘heat benchmark sub-installation’ includes the activity of exporting the measurable heat from an installation subject to the greenhouse gas emissions trading system to a steam network when the latter network can be qualified as an ‘installation or other entity not covered by the Union scheme’. |
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10.

Article 3(c), of Decision 2011/278 must be interpreted as meaning that the concept of ‘heat benchmark sub-installation’ includes the activity of exporting the measurable heat from an installation subject to the greenhouse gas emissions trading system to a steam network when the latter network can be qualified as an ‘installation or other entity not covered by the Union scheme’.

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(1)  OJ C 205, 22.6.2015.

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