Information;Order — ECLI:EU:C:2023:161
Date: 2023-03-01
Language of the case: Italian
Court formation: Tenth Chamber
Subject matter: Environment;Pollution
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary C-91/22 – 1 
Case C-91/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
9 February 2022 
Referring court: 
Tribunale Amministrativo Regionale per il Lazio (Italy) 
Date of the decision to refer: 
25 January 2022 
Applicant: 
Fenice – Qualità per l’ambiente SpA 
Defendants: 
Ministero della Transizione Ecologica 
Ministero dello Sviluppo Economico 
Comitato nazionale per la gestione della direttiva 2003/87/CE e per 
il supporto nella gestione delle attività di progetto del protocollo di 
Kyoto 
Other parties:  
Hera SpA, Fca Italy SpA 
… 
Subject matter of the main proceedings 
Action for annulment of the decision of the Comitato nazionale per la gestione 
della direttiva 2003/87/CE e per il supporto nella gestione delle attività di progetto 
del protocollo di Kyoto (Italian national committee for the management of 
Directive 2003/87/EC and for support in the management of project activities 
under the Kyoto Protocol; ‘the ETS Committee’) of 12 April 2021 not to allocate 
any free CO2 emission allowances for the period 2021-2025 to an installation run 
by the applicant. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-91/22 
 
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Subject matter and legal basis of the request 
Article 267 TFEU. 
Questions referred for a preliminary ruling 
1. Is the decision taken by the Italian national committee for the management 
of Directive 2003/87/EC and for support in the management of project activities 
under the Kyoto Protocol, considering the adoption procedure and, in particular, 
the mechanism for dialogue with the European Commission provided for in 
Delegated Regulation (EU) 2019/331, concerning the inclusion of installations in 
the list for the allocation of CO2 allowances, open to appeal before the General 
Court pursuant to the fourth paragraph of Article 263 TFEU, where the contested 
measure produces binding legal effects and directly affects the applicant as an 
economic operator? 
2. In the alternative, can the private economic operator directly affected by the 
exclusion from the allocation of CO2 allowances, on the basis of the joint 
investigation conducted by the European Commission and the Italian national 
committee for the management of Directive 2003/87/EC and for support in the 
management of project activities under the Kyoto Protocol, challenge the decision 
taken by the European Commission to reject the inclusion of the installation in the 
list pursuant to Article 14(4) of Delegated Regulation (EU) 2019/331 before the 
General Court pursuant to the fourth paragraph of Article 263 TFEU? 
3. Does the concept of ‘electricity generator’ within the meaning of 
Article 3(u) of Directive 2003/87/EC, as was evident from the judgment of the 
Court of Justice (Fifth Chamber) of 20 June 2019 in Case C-682/17, ExxonMobil 
Production Deutschland GmbH v Bundesrepublik Deutschland, concerning the 
request for a preliminary ruling submitted to the Court of Justice pursuant to 
Article 267 TFEU by the Verwaltungsgericht Berlin (Administrative Court, 
Berlin, Germany) by decision of 28 November 2017, also cover situations in 
which the installation marginally generates electricity from non-high-efficiency 
cogeneration, characterised by a variety of thermal energy sources other than 
cogeneration qualifying for the allocation of free emission allowances? 
4. Is such an interpretation of the definition of ‘electricity generator’ 
compatible with the general principles of EU law on respect for competition 
between operators where incentives are granted, and with the principle of 
proportionality of the measure, where it completely excludes an installation that 
uses a variety of energy sources, without separating out the emission values 
relating to heat sources other than cogeneration, which are fully entitled to receive 
the benefits provided for? 
FENICE – QUALITÀ PER L’AMBIENTE 
 
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Provisions of European Union law and case-law relied on 
TFEU; the fourth paragraph of Article 263. 
Directive 2003/87/EC (ETS Directive), as amended by Directive 2009/29/EU and, 
more recently, by Directive 2018/410/EU. 
The ETS Directive regulates the European Union Emissions Trading Scheme (EU 
ETS), which is a key tool for combating climate change and for reducing 
greenhouse gas emissions cost-effectively. The system operates according to the 
principle of ‘cap-and-trade’: a cap is set on the total amount of certain greenhouse 
gases and this cap is reduced over time so that total emissions fall. Below this cap, 
undertakings buy or receive emission allowances, which they can trade with one 
another as needed. At the end of each year, companies must surrender enough 
allowances to cover their emissions if they want to avoid heavy fines. If an 
undertaking reduces its emissions, it can keep unused allowances to cover future 
needs or sell them to another undertaking. The ETS Directive stipulates that from 
2013, electricity generators and installations that carry out carbon capture, 
transport and storage must purchase at auction allowances for all of their needs 
(allocation for consideration). By contrast, installations in the manufacturing 
sector are entitled to the free allocation of allowances, on the basis of their level of 
activity and benchmarks drawn up by the European Commission and valid at 
European level. 
Directive 2012/27/EU, which, inter alia, defines high-efficiency cogeneration 
installations (high-efficiency CHP). 
Commission Delegated Regulation (EU) 2019/331 of 19 December 2018, which, 
inter alia, sets out the information required with regard to installations falling 
within the scope of the directive, as well as the methods and procedures for 
Member States to send data to the Commission via their national competent 
authorities. (For Italy, it is the ETS Committee that determines the annual quantity 
of allowances to be allocated free of charge to eligible operators and that sends the 
Commission the list containing that information for each installation for which the 
free allocation of allowances is requested). The Commission examines the data 
submitted and may request further documentation from the Member State. 
Judgment of the Court of Justice of 20 June 2019 (Case C-682/17). 
Judgment of the Court of Justice of 3 December 2019 (Case C-414/18). 
Provisions of national law relied on 
Decreto legislativo del 4 aprile 2006, n. 216 (Legislative Decree No 216 of 4 April 
2006) and decreto legislativo del 13 marzo 2013, n. 30 (Legislative Decree No 30 
of 13 March 2013), which, inter alia, identify the ETS Committee as the 
competent national authority for the implementation of the ETS system. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-91/22 
 
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Decreto legislativo del 9 giugno 2020, n. 47 (Legislative Decree No 47 of 9 June 
2020), which establishes, inter alia, that the ETS Committee is also responsible for 
determining the annual quantity of allowances to be allocated free of charge in 
accordance with the rules of EU law. 
Legge del 7 agosto 1990, n. 241 (Law No 241 of 7 August 1990); Articles 3 and 
10bis. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The company FENICE – Qualità per l’ambiente SpA, an environmental and 
alternative energy operator, runs three installations with a total rated thermal input 
of more than 20 MW, supplying third-party industrial installations and falling 
within the scope of the ETS system. One of the installations is the subject of this 
request for a preliminary ruling, while the other two are the subject of requests for 
a preliminary ruling C-92/22 and C-93/22. 
2 In June 2019, the applicant submitted documents to the ETS Committee in 
relation to the request for the allocation of free emission allowances for the period 
2021-2025. The Commission subsequently asked the applicant to clarify whether 
the installation in question, having been categorised as an electricity generator, 
was a high-efficiency CHP installation under Directive 2012/27. The applicant 
explained that the installation used a variety of thermal energy sources other than 
cogeneration. As such, it should be eligible for the allocation of the relevant 
allowances, since the electricity production component was completely marginal 
and in any case could be separated from the other combustion sources. Following 
investigations carried out in agreement with the Commission, the ETS Committee 
informed the applicant that the installation in question was not eligible for free 
emission allowances and so did not allocate any of those allowances to it. 
3 The applicant brought an action, complaining that not being allocated any free 
emission allowances was unfair. It relied on a number of pleas based, inter alia, on 
the infringement of Directives 2003/87 and 2018/410, and – with regard to 
national law – of Law No 241/1990 (Articles 3 and 10bis) and Legislative Decree 
No 47/2020. 
The essential arguments of the parties in the main proceedings 
4 The applicant, who has not been allocated any free allowances, first submits, on 
the merits, that this is due to the fact that the actual situation at its installation was 
not given proper consideration. Article 10a(3) of Directive 2003/87 was applied to 
the applicant’s installation as a result of a misinterpretation of the judgment of the 
Court of Justice of 20 June 2019 in Case C-682/17, which provided an 
interpretation of the concept of ‘electricity generator’ which consisted of 
continuously feeding, for consideration, even only a small part of the electricity 
produced into the public electricity network. According to the applicant, the 
FENICE – QUALITÀ PER L’AMBIENTE 
 
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installation at issue in the present case cannot be considered an electricity 
generator in that sense, since it is an installation in which multiple sources are 
simultaneously present. This type of installation was not taken into consideration. 
The applicant also stated that the installation had benefited from the free 
allocation of allowances during the period 2013-2020. Therefore, the Commission 
and the ETS Committee should have made a distinction between the thermal 
energy produced by the thermal power plant (which could have received free 
allowances) and that produced by the non-high-efficiency cogeneration plant. 
Such a distinction would have been easily verifiable and identifiable from the 
various documents in their possession. 
5 Second, as regards the possible inadmissibility of the action on the grounds of lack 
of jurisdiction, raised by the referring court of its own motion, the applicant 
submits that it is the ETS Committee (an interministerial body) that determines 
whether an installation is included in the list and that decides on the final 
allocation of free allowances to each of the installations included in that list. The 
ETS Committee acts as a body of the Ministero della Transizione Ecologica 
(Ministry of Ecological Transition). Since it is a national body and not an EU 
body, any measures it adopts have the same effect as an administrative act. 
Therefore, it is for the Member State – in this case the administrative court – to 
review their legality. The Court of Justice is expressly precluded from reviewing 
the legality of acts of Member State bodies, unless the measure is only formally 
adopted by a national body, but in reality is substantially the result of a decision at 
EU level. In this case, as stated in the judgment of the Court of Justice of 
3 December 2019 in Case C-414/18, the private individual affected by that 
measure may challenge it before the General Court, as with a measure adopted 
directly by the bodies of the Union. 
6 The Ministry of Ecological Transition contends that the action is unfounded and 
should be dismissed. 
7 First, on the substance, the conditions for the allocation of free allowances are not 
met, given that the installation in question is not covered by the exceptional 
circumstances in which it is possible to recognise such allowances for electricity 
generators. The starting point for understanding the substance of the 
Commission’s decision is the judgment of the Court of Justice of 20 June 2019 in 
Case C-682/17. That judgment states that an installation which produces, 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 Directive 
2003/87, electricity intended essentially to be used for its own needs, must be 
regarded as an ‘electricity generator’, within the meaning of Article 3(u) of the 
directive, where that installation, first, carries out simultaneously an activity 
which does not fall within the scope of ETS, 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. The consequence of an installation’s status as an electricity 
generator is that it loses the right to allocate free allowances for any sub-
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-91/22 
 
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installation, except in certain cases expressly provided for in the directive. The 
same judgment states that an ‘electricity generator’, within the meaning of 
Article 3(u) of Directive 2003/87, 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 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. The consequences 
of that judgment are that an installation that can be categorised as an electricity 
generator, such as the one at issue in the main proceedings, is not entitled to free 
allowances, because it does not fall into any of the cases that represent exceptions 
to that exclusion. In the light of the foregoing, and following subsequent requests 
for clarification, the Commission held that, since this is not a high-efficiency CHP 
plant, none of the cases referred to in Article 10a(3), which constitute exceptions 
to the rule prohibiting the allocation of free allowances to electricity generators, 
applied. 
8 Second, given that the applicant was actively involved in the data collection that 
preceded the exclusion decision, that decision was based on the Commission’s 
assessments which were simply given binding effect by the decision of the ETS 
Committee. Moreover, as is evident from exchanges on the platform provided by 
the Commission for uploading data, the applicant not only actively participated in 
the preliminary investigation, alongside the ETS Committee and indirectly with 
the Commission, but had the opportunity to respond to the critical points 
identified by the Commission. Therefore, the applicant was fully aware of the 
reasons why the Commission finally decided not to include it among the 
installations eligible for the free allocation of allowances. By law, the 
Commission thus retains the right to make a final decision which is binding on the 
Member States. In the present case, the Commission requested the cancellation of 
the free allocation to the applicant’s installation and the ETS Committee had to 
comply with that request under its limited jurisdiction. It follows that the Italian 
administrative court has no jurisdiction in the dispute, whereas the Court of 
Justice does have jurisdiction. The appeal against the acts of the ETS Committee, 
without an independent complaint against the Commission’s assessments (which 
is within the jurisdiction of the Court of Justice), should in any case be considered 
inadmissible. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 Given the importance of the interests involved and the complexity of the values at 
stake, the referring court considers it necessary to refer the above questions 
relating to the interpretation of EU law to the Court of Justice for a preliminary 
ruling.