# C_2019399EN.01002201.xml

| 25.11.2019 | EN | Official Journal of the European Union | C 399/22 |
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25.11.2019

EN

Official Journal of the European Union

C 399/22

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Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 14 August 2019 — Granarolo S.p.A. v Ministero dell’Ambiente e della Tutela del Territorio e del Mare and Others

(Case C-617/19)

(2019/C 399/26)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Granarolo S.p.A.

Defendants: Ministero dell’Ambiente e della Tutela del Territorio e del Mare, Ministero dello Sviluppo Economico, and Comitato nazionale per la gestione della Direttiva 2003/87/CE e per il supporto nella gestione delle attività di progetto del protocollo di Kyoto

Questions referred

| 1. | Must Article 3(e) 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, (1) as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, (2) be interpreted as including within the concept of ‘installation’ a situation such as that at issue, in which a co-generator built by the applicant on its industrial site to supply energy for its production facility was subsequently transferred, by a transfer of part of the business, to another company, a specialist in the energy sector, by a contract which provided, on the one hand, for (i) the installation co-generating electricity and heat to be transferred to the transferee as well as the certificates, documents, declarations of conformity, licences, concessions, authorisations and permits required for the operation of that installation and for the carrying out of activities, and for (ii) a surface right to be created in the transferee’s favour over an area of the site adequate and functional for the management and maintenance of the installation, in addition to rights of easement over the construction used for co-generation and an exclusive right over the surrounding area, and, on the other hand, for the transferee to supply the transferor for 12 years with energy produced by the installation, at prices set out in the contract? |
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1.

Must Article 3(e) 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, (1) as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, (2) be interpreted as including within the concept of ‘installation’ a situation such as that at issue, in which a co-generator built by the applicant on its industrial site to supply energy for its production facility was subsequently transferred, by a transfer of part of the business, to another company, a specialist in the energy sector, by a contract which provided, on the one hand, for (i) the installation co-generating electricity and heat to be transferred to the transferee as well as the certificates, documents, declarations of conformity, licences, concessions, authorisations and permits required for the operation of that installation and for the carrying out of activities, and for (ii) a surface right to be created in the transferee’s favour over an area of the site adequate and functional for the management and maintenance of the installation, in addition to rights of easement over the construction used for co-generation and an exclusive right over the surrounding area, and, on the other hand, for the transferee to supply the transferor for 12 years with energy produced by the installation, at prices set out in the contract?

| 2. | In particular, may a connection between a co-generator and a production facility, such that that production facility, which belongs to another party and which despite having a privileged relationship with the co-generator for the purposes of supplying energy (connected by means of: an electricity distribution system; a specific supply contract with the energy company that is the transferee of the installation; a commitment for that transferee to supply a minimum amount of energy to the production facility or reimburse a sum equal to the difference between the cost of supplying energy on the market and the prices set out in the contract; a discount on the sale prices of the energy as from 10 years and 6 months after the start-date of the contract; an option for the transferor to repurchase the co-generator from the transferee at any time; and a requirement for authorisation to be given by the transferor in order for works to be carried out on the co-generator installation), is able to continue its own activity even in the event that the supply of energy is interrupted or the co-generator malfunctions or ceases its activity, be included within the concept of ‘technical connection’ referred to in Article 3(e) of Directive 2003/87/EC? |
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2.

In particular, may a connection between a co-generator and a production facility, such that that production facility, which belongs to another party and which despite having a privileged relationship with the co-generator for the purposes of supplying energy (connected by means of: an electricity distribution system; a specific supply contract with the energy company that is the transferee of the installation; a commitment for that transferee to supply a minimum amount of energy to the production facility or reimburse a sum equal to the difference between the cost of supplying energy on the market and the prices set out in the contract; a discount on the sale prices of the energy as from 10 years and 6 months after the start-date of the contract; an option for the transferor to repurchase the co-generator from the transferee at any time; and a requirement for authorisation to be given by the transferor in order for works to be carried out on the co-generator installation), is able to continue its own activity even in the event that the supply of energy is interrupted or the co-generator malfunctions or ceases its activity, be included within the concept of ‘technical connection’ referred to in Article 3(e) of Directive 2003/87/EC?

| 3. | Lastly, in the event of an actual transfer of an energy-production installation by the party who constructed it — which is also the owner of an industrial plant on the same site — to a different company which is a specialist in the field of energy, for reasons of efficiency, does the possibility of delinking the relevant emissions from the holder of the industrial plant’s ETS permit, following the transfer, and the possible effect that those emissions will ‘evade’ the ETS system due to the fact that the energy-production installation, considered alone, does not exceed the threshold for qualification as a ‘small emitter’[,] represent an infringement of the rule of aggregation of sources provided for in Annex I to Directive 2003/87/EC, or, on the contrary, is it merely a lawful consequence of the organisational choices of the operators, not prohibited by the ETS system? |
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3.

Lastly, in the event of an actual transfer of an energy-production installation by the party who constructed it — which is also the owner of an industrial plant on the same site — to a different company which is a specialist in the field of energy, for reasons of efficiency, does the possibility of delinking the relevant emissions from the holder of the industrial plant’s ETS permit, following the transfer, and the possible effect that those emissions will ‘evade’ the ETS system due to the fact that the energy-production installation, considered alone, does not exceed the threshold for qualification as a ‘small emitter’[,] represent an infringement of the rule of aggregation of sources provided for in Annex I to Directive 2003/87/EC, or, on the contrary, is it merely a lawful consequence of the organisational choices of the operators, not prohibited by the ETS system?

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(1)  OJ 2003 L 275, p. 32.

(2)  Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community (OJ 2009 L 140, p. 63).

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