# C_2022051EN.01000902.xml

| 31.1.2022 | EN | Official Journal of the European Union | C 51/9 |
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31.1.2022

EN

Official Journal of the European Union

C 51/9

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Judgment of the Court (Fifth Chamber) of 25 November 2021 (request for a preliminary ruling from the Verwaltungsgericht Berlin — Germany) — Aurubis AG v Bundesrepublik Deutschland

(Case C-271/20) (1)

(Reference for a preliminary ruling - Scheme for greenhouse gas emission allowance trading - Free allocation of allowances - Decision 2011/278/EU - Article 3(d) - Fuel benchmark sub-installation - Concepts of ‘combustion’ and ‘fuel’ - Primary copper production by flash smelting - Request for allocation - Allowances requested and not yet allocated on the date of expiry of a trading period - Possibility of issuing such allowances during the subsequent trading period by way of enforcement of a judicial decision given after that date)

(2022/C 51/11)

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Aurubis AG

Defendant: Bundesrepublik Deutschland

Operative part of the judgment

| 1. | Article 3(d) 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 must be interpreted as meaning that the concept of a ‘fuel benchmark sub-installation’ covers, within an installation producing primary copper and whose activity falls within Annex I to 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 amending Directive 2003/87 so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community, a flash smelting foundry that causes sulphur present in the raw material used to be oxidised, that raw material being a copper concentrate. |
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1.

Article 3(d) 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 must be interpreted as meaning that the concept of a ‘fuel benchmark sub-installation’ covers, within an installation producing primary copper and whose activity falls within Annex I to 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 amending Directive 2003/87 so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community, a flash smelting foundry that causes sulphur present in the raw material used to be oxidised, that raw material being a copper concentrate.

| 2. | Decision 2011/278 must be interpreted as meaning that free allowances to which the operator of an installation is entitled in respect of the third trading period (2013 to 2020) may still be issued to the latter after 31 December 2020 by way of enforcement of a judicial decision given after that date. |
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2.

Decision 2011/278 must be interpreted as meaning that free allowances to which the operator of an installation is entitled in respect of the third trading period (2013 to 2020) may still be issued to the latter after 31 December 2020 by way of enforcement of a judicial decision given after that date.

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(1)  OJ C 287, 31.8.2020.

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