# C_2019270EN.01000702.xml

| 12.8.2019 | EN | Official Journal of the European Union | C 270/7 |
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12.8.2019

EN

Official Journal of the European Union

C 270/7

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Judgment of the Court (Fifth Chamber) of 20 June 2019 (request for a preliminary ruling from the Verwaltungsgericht Berlin — Germany) — ExxonMobil Production Deutschland GmbH v Bundesrepublik Deutschland

(Case C-682/17) (1)

(Reference for a preliminary ruling - Environment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - Natural gas processing installation - Sulphur recovery - ‘Claus process’ - Production of electricity in a secondary facility - Production of heat - Emission of inherent carbon dioxide (CO2) - Article 2(1) - Scope - Annex I - Activity of ‘combustion of fuels’ - Article 3(u) - Concept of ‘electricity generator’ - Article 10a(3) and (4) - Transitional arrangements for the harmonised free allocation of emission allowances - Decision 2011/278/EU - Scope - Article 3(c) - Concept of ‘heat benchmark sub-installation’)

(2019/C 270/08)

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: ExxonMobil Production Deutschland GmbH

Defendant: Bundesrepublik Deutschland

Operative part of the judgment

| 1. | Article 3(u) 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, must be interpreted as meaning that an installation, such as that at issue in the main proceedings, which produces, within the framework of its activity of ‘combustion of fuels in installations with a total rated thermal input exceeding 20 [megawatts (MW)]’, referred to in Annex I to that directive, electricity intended essentially to be used for its own needs, must be regarded as an ‘electricity generator’, within the meaning of that provision, where that installation, first, carries out simultaneously an activity for producing a product which does not fall within that annex and, second, continuously feeds, for consideration, even a small part of the electricity produced into the public electricity network, to which that installation must be permanently connected for technical reasons. |
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1.

Article 3(u) 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, must be interpreted as meaning that an installation, such as that at issue in the main proceedings, which produces, within the framework of its activity of ‘combustion of fuels in installations with a total rated thermal input exceeding 20 [megawatts (MW)]’, referred to in Annex I to that directive, electricity intended essentially to be used for its own needs, must be regarded as an ‘electricity generator’, within the meaning of that provision, where that installation, first, carries out simultaneously an activity for producing a product which does not fall within that annex and, second, continuously feeds, for consideration, even a small part of the electricity produced into the public electricity network, to which that installation must be permanently connected for technical reasons.

| 2. | Article 3(c) 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 must be interpreted as meaning that, in so far as an installation such as that at issue in the main proceedings must be regarded as an ‘electricity generator’, within the meaning of Article 3(u) of Directive 2003/87, it is not entitled to be allocated free emission allowances in respect of the heat produced within the framework of its activity of ‘combustion of fuels in installations with a total rated thermal input exceeding 20 MW’, referred to in Annex I to that directive, where that heat is used for purposes other than the production of electricity, since such an installation does not fulfil the conditions laid down in Article 10a(4) and (8) of the directive. |
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2.

Article 3(c) 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 must be interpreted as meaning that, in so far as an installation such as that at issue in the main proceedings must be regarded as an ‘electricity generator’, within the meaning of Article 3(u) of Directive 2003/87, it is not entitled to be allocated free emission allowances in respect of the heat produced within the framework of its activity of ‘combustion of fuels in installations with a total rated thermal input exceeding 20 MW’, referred to in Annex I to that directive, where that heat is used for purposes other than the production of electricity, since such an installation does not fulfil the conditions laid down in Article 10a(4) and (8) of the directive.

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(1)  OJ C 112, 26.3.2018.

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