# C_2015279EN.01002001.xml

| 24.8.2015 | EN | Official Journal of the European Union | C 279/20 |
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24.8.2015

EN

Official Journal of the European Union

C 279/20

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Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 8 June 2015 — Swiss International Air Lines AG v The Secretary of State for Energy and Climate Change, Environment Agency

(Case C-272/15)

(2015/C 279/25)

Language of the case: English

Referring court

Court of Appeal (England & Wales) (Civil Division)

Parties to the main proceedings

Applicant: Swiss International Air Lines AG

Defendants: The Secretary of State for Energy and Climate Change, Environment Agency

Questions referred

| 1. | Does Decision 377/2013/EU (1) of the European Parliament and of the Council of 24 April 2013 (‘the Decision’) infringe the general EU principle of equal treatment insofar as it establishes a moratorium on the requirements to surrender emissions allowances imposed by Directive 2003/87/EC (2) of the European Parliament and of the Council of 13 October 2003 (as amended by various instruments, including Directive 2008/101/EC (3) of the European Parliament and of the Council of 19 November 2008) in respect of flights between EEA states and almost all non-EEA states, but does not extend that moratorium to flights between EEA states and Switzerland? |
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1.

Does Decision 377/2013/EU (1) of the European Parliament and of the Council of 24 April 2013 (‘the Decision’) infringe the general EU principle of equal treatment insofar as it establishes a moratorium on the requirements to surrender emissions allowances imposed by Directive 2003/87/EC (2) of the European Parliament and of the Council of 13 October 2003 (as amended by various instruments, including Directive 2008/101/EC (3) of the European Parliament and of the Council of 19 November 2008) in respect of flights between EEA states and almost all non-EEA states, but does not extend that moratorium to flights between EEA states and Switzerland?

| 2. | If so, what remedy must be provided to a claimant in the position of Swiss International Airlines AG, which has surrendered emissions allowances in respect of flights that took place during 2012 between EEA states and Switzerland, to restore that claimant to the position it would have been in, but for the exclusion from the moratorium of flights between EEA states and Switzerland? In particular:






  a) | Must the register be rectified to reflect the lesser number of allowances that such a claimant would have been required to surrender if flights to or from Switzerland had been included in the moratorium? |
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2.

If so, what remedy must be provided to a claimant in the position of Swiss International Airlines AG, which has surrendered emissions allowances in respect of flights that took place during 2012 between EEA states and Switzerland, to restore that claimant to the position it would have been in, but for the exclusion from the moratorium of flights between EEA states and Switzerland? In particular:

a)

Must the register be rectified to reflect the lesser number of allowances that such a claimant would have been required to surrender if flights to or from Switzerland had been included in the moratorium?

| b) | If so, what (if any) action must the national competent authority and/or the national court take to procure that the additional allowances surrendered are returned to such a claimant? |
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b)

If so, what (if any) action must the national competent authority and/or the national court take to procure that the additional allowances surrendered are returned to such a claimant?

| c) | Does such a claimant has the right to claim damages under Article 340 of the TFEU against the European Parliament and the Council for any loss that it has suffered by reason of having surrendered additional allowances as a result of the Decision? |
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c)

Does such a claimant has the right to claim damages under Article 340 of the TFEU against the European Parliament and the Council for any loss that it has suffered by reason of having surrendered additional allowances as a result of the Decision?

| d) | Must the claimant be granted some other form of relief, and if so what relief? |
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d)

Must the claimant be granted some other form of relief, and if so what relief?

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(1)  Decision No 377/2013/EU of the European Parliament and of the Council of 24 April 2013 derogating temporarily from Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community OJ L 113, p. 1.

(2)  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 (Text with EEA relevance) OJ L 275, p. 32.

(3)  Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community (Text with EEA relevance) OJ L 8, p. 3.

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