# C_2019182EN.01002101.xml

| 27.5.2019 | EN | Official Journal of the European Union | C 182/21 |
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27.5.2019

EN

Official Journal of the European Union

C 182/21

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Request for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 26 February 2019 — Spenner GmbH & Co. KG v Bundesrepublik Deutschland

(Case C-189/19)

(2019/C 182/25)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant and appellant on a point of law: Spenner GmbH & Co. KG

Defendant and respondent in the appeal on a point of law: Bundesrepublik Deutschland

Questions referred

| 1. | Does Article 9(9) 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 (1) presuppose that the significant capacity extension of an incumbent installation has taken place within the baseline period determined by the Member State in accordance with Article 9(1) of that decision? |
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1.

Does Article 9(9) 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 (1) presuppose that the significant capacity extension of an incumbent installation has taken place within the baseline period determined by the Member State in accordance with Article 9(1) of that decision?

| 2. | As regards significant capacity extensions, is the first subparagraph of Article 9(9) of Decision 2011/278/EU, read in conjunction with Article 9(1) thereof, to be interpreted as meaning that, for the purposes of determining the historical activity levels for the baseline period from 1 January 2009 to 31 December 2010, the historical activity levels of the added capacity are to be left out of account (even) if the significant capacity extension took place in the baseline period from 1 January 2005 to 31 December 2008? |
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2.

As regards significant capacity extensions, is the first subparagraph of Article 9(9) of Decision 2011/278/EU, read in conjunction with Article 9(1) thereof, to be interpreted as meaning that, for the purposes of determining the historical activity levels for the baseline period from 1 January 2009 to 31 December 2010, the historical activity levels of the added capacity are to be left out of account (even) if the significant capacity extension took place in the baseline period from 1 January 2005 to 31 December 2008?

| 3. | (a) | If Question 1 is to be answered in the affirmative:
  Is Article 9(1) of Decision 2011/278/EU to be interpreted as meaning that the competent authority of the Member State must itself determine the baseline period from 1 January 2005 to 31 December 2008 or from 1 January 2009 to 31 December 2010 or may the Member State confer on the operator the right to choose the baseline period? |
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3.

(a)

If Question 1 is to be answered in the affirmative:

Is Article 9(1) of Decision 2011/278/EU to be interpreted as meaning that the competent authority of the Member State must itself determine the baseline period from 1 January 2005 to 31 December 2008 or from 1 January 2009 to 31 December 2010 or may the Member State confer on the operator the right to choose the baseline period?

| (b) | In the event that the Member State may confer on the operator the right to choose:
  Must the Member State take into account the baseline period leading to the higher activity level of each installation even if the operator has the freedom under national law to choose between the baseline periods and decides to choose a baseline period with lower historical activity levels? |
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(b)

In the event that the Member State may confer on the operator the right to choose:

Must the Member State take into account the baseline period leading to the higher activity level of each installation even if the operator has the freedom under national law to choose between the baseline periods and decides to choose a baseline period with lower historical activity levels?

| 4. | Is Commission Decision (EU) 2017/126 of 24 January 2017 amending Decision 2013/448/EU as regards the establishment of a uniform cross-sectoral factor in accordance with Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (2) to be interpreted as meaning that the cross-sectoral correction factor for allocations made before 1 March 2017 is to be applied to the years 2013-2020 in the form in which it appears in the original version of Article 4 of, and Annex II to, Decision 2013/448/EU, and, in the case of additional allocations of emission entitlements granted by judicial decision after 28 February 2017, to the full quantity of additional allowance for the years 2013 to 2020 or only to the additional allowance for the years 2018 to 2020? |
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4.

Is Commission Decision (EU) 2017/126 of 24 January 2017 amending Decision 2013/448/EU as regards the establishment of a uniform cross-sectoral factor in accordance with Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (2) to be interpreted as meaning that the cross-sectoral correction factor for allocations made before 1 March 2017 is to be applied to the years 2013-2020 in the form in which it appears in the original version of Article 4 of, and Annex II to, Decision 2013/448/EU, and, in the case of additional allocations of emission entitlements granted by judicial decision after 28 February 2017, to the full quantity of additional allowance for the years 2013 to 2020 or only to the additional allowance for the years 2018 to 2020?

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(1)  OJ 2011 L 130, p. 1.

(2)  OJ 2017 L 19, p. 93.

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