# C_2015389EN.01001602.xml

| 23.11.2015 | EN | Official Journal of the European Union | C 389/16 |
| --- | --- | --- | --- |

23.11.2015

EN

Official Journal of the European Union

C 389/16

---

Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 28 August 2015 — BASF SE v Bundesrepublik Deutschland

(Case C-456/15)

(2015/C 389/18)

Language of the case: German

Referring court

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Parties to the main proceedings

Applicant: BASF SE

Applicant:

Defendant: Bundesrepublik Deutschland

Defendant:

Questions referred

Questions referred

| 1. | Is Decision 2013/448/EU (1) invalid and contrary to the objectives of Directive 2003/87/EC in so far as it lays down the uniform cross-sectoral correction factor in such a way that, in the determination of the maximum annual amount of allowances under Article 10a(5) of Directive 2003/87/EC (industry cap), emissions from waste gases used for the production of electricity and emissions produced in combined heat and power cogeneration installations were not included? |
| --- | --- |

1.

Is Decision 2013/448/EU (1) invalid and contrary to the objectives of Directive 2003/87/EC in so far as it lays down the uniform cross-sectoral correction factor in such a way that, in the determination of the maximum annual amount of allowances under Article 10a(5) of Directive 2003/87/EC (industry cap), emissions from waste gases used for the production of electricity and emissions produced in combined heat and power cogeneration installations were not included?

1

| 2. | Is Decision 2013/448/EU invalid and contrary to the objectives of Directive 2003/87/EC in so far as it creates an imbalance by excluding emissions associated with the combustion of waste gases and with heat produced in cogeneration from the basis of calculation in Article 10a(5)(a) and (b), whereas free allocation with regard to such emissions from an installation not falling under Article 10a(3) of Directive 2003/87/EC is due in accordance with Article 10a(1) and 10a(4) of Directive 2003/87/EC and Decision 2011/278/EU? (2) |
| --- | --- |

2.

Is Decision 2013/448/EU invalid and contrary to the objectives of Directive 2003/87/EC in so far as it creates an imbalance by excluding emissions associated with the combustion of waste gases and with heat produced in cogeneration from the basis of calculation in Article 10a(5)(a) and (b), whereas free allocation with regard to such emissions from an installation not falling under Article 10a(3) of Directive 2003/87/EC is due in accordance with Article 10a(1) and 10a(4) of Directive 2003/87/EC and Decision 2011/278/EU? (2)

2

| 3. | Is Decision 2013/448/EU invalid and contrary to the objectives of Directive 2003/87/EC in so far as it lays down the uniform cross-sectoral correction factor in such a way that, in the determination of the maximum annual amount of allowances under Article 10a(5) of Directive 2003/87/EC (industry cap), emissions from installations that first became subject to emissions trading obligations in the second period and emissions from installations that were ‘opted into’ emissions trading were not taken into account? |
| --- | --- |

3.

Is Decision 2013/448/EU invalid and contrary to the objectives of Directive 2003/87/EC in so far as it lays down the uniform cross-sectoral correction factor in such a way that, in the determination of the maximum annual amount of allowances under Article 10a(5) of Directive 2003/87/EC (industry cap), emissions from installations that first became subject to emissions trading obligations in the second period and emissions from installations that were ‘opted into’ emissions trading were not taken into account?

| 4. | Is Decision 2013/448/EU invalid and contrary to the objectives of Directive 2003/87/EC in so far as it lays down the uniform cross-sectoral correction factor in such a way that, in the determination of the maximum annual amount of allowances under Article 10a(5) of Directive 2003/87/EC (industry cap), emissions from installations that were closed before 30 June 2011 were taken into account as deductible items, whereas emissions from installations that first began to be used in the second period were not included? |
| --- | --- |

4.

Is Decision 2013/448/EU invalid and contrary to the objectives of Directive 2003/87/EC in so far as it lays down the uniform cross-sectoral correction factor in such a way that, in the determination of the maximum annual amount of allowances under Article 10a(5) of Directive 2003/87/EC (industry cap), emissions from installations that were closed before 30 June 2011 were taken into account as deductible items, whereas emissions from installations that first began to be used in the second period were not included?

| 5. | Is Decision 2013/448/EU invalid and does it infringe the principles, in a State governed by the rule of law, of good administration as laid down in Article 298 TFEU and Article 41 of the Charter of Fundamental Rights of the European Union in so far as it lays down the uniform cross-sectoral correction factor, on the ground that the calculation of the correction factor was not made public? |
| --- | --- |

5.

Is Decision 2013/448/EU invalid and does it infringe the principles, in a State governed by the rule of law, of good administration as laid down in Article 298 TFEU and Article 41 of the Charter of Fundamental Rights of the European Union in so far as it lays down the uniform cross-sectoral correction factor, on the ground that the calculation of the correction factor was not made public?

---

(1)  2013/448/EU: Commission Decision 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).

1

(2)  2011/278/EU: Commission Decision 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 (notified under document C(2011) 2772) (OJ 2011 L 130, p. 1).

2

---