Opinion of the Advocate General — ECLI:EU:C:2016:139
Date: 2016-03-03
Language of the case: Dutch
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Sixth Chamber), 9 June 2016 1. Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Emissions from combustion installations — Concept of installation — Fuel storage site connected to a coal-fired power plant — Included (European Parliament and Council Directive 2003/87, as amended by Decision No 1359/2013, Art. 3(e) and Annex I) 2. Environment — Atmospheric pollution — Scheme for greenhouse gas emission allowance trading — Monitoring and reporting of such emissions — Regulation No 601/2012 — Determination of activity data — Calculating the quantity of fuel processed by deducting the quantity of material exported from the installation — Concept of fuel exported from the installation — Loss of coal as a result of the process by which it naturally self-heats while in storage in an installation — Not included (European Parliament and Council Directive 2003/87, as amended by Decision No 1359/2013, Art. 3(e) and Annex I; Commission Regulation No 601/2012, as amended by Regulation No 206/2014, Art. 27(2), first para.) 1. A fuel storage site of a coal-fired power plant which is situated approximately 800 metres from that power plant, which is separated from it by a public road, and where the fuel is transported from that site to the power plant by means of a conveyor belt which crosses that public road, is part of an ‘installation’ within the meaning of Article 3(e) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Directive 96/61, as amended by Decision No 1359/2013. As that storage site does not constitute a stationary unity within the meaning of Article 3(e) of Directive 2003/87, it is part of an installation within the meaning of that article only if the coal storage activity fulfils the criteria laid down by that provision for activities other than those mentioned in Annex I to that directive. Such will be the case if that activity is directly associated with the combustion activity of the power plant, if it has a technical connection with the activities carried out on the site of that power plant and if it could have an effect on emissions and pollution. That direct association is, moreover, evidenced by the existence of a technical connection between the two activities. Such a connection exists in any event, for the coal storage site in question, by reason of the very fact of the practical organisation of that site and the presence of a conveyor belt located between the coal park and the power plant. Furthermore, since the coal storage activity emits, by a natural self-heating process, greenhouse gases, that activity could have an effect on emissions and pollution within the meaning of Article 3(e) of Directive 2003/87. (see paras 29-31, 33, 34, operative part 1) 2. The first subparagraph of Article 27(2) of Regulation No 601/2012 on the monitoring and reporting of greenhouse gas emissions pursuant to Directive 2003/87, as amended by Regulation No 206/2014, must be interpreted as meaning that coal lost as a result of the process by which it naturally self-heats while in storage on a site that is part of an installation within the meaning of Article 3(e) of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community, as amended by Decision No 1359/2013, cannot be regarded as coal exported from that installation. Both the wording of the first subparagraph of Article 27(2) of Regulation No 601/2012, which incorporates the concept of ‘export’ rather than that of ‘loss’, and the objective pursued by that regulation of ensuring complete monitoring and reporting which cover, as Article 5 of that regulation makes clear, all process and combustion emissions from all emission sources and source streams belonging to activities listed in Annex I to Directive 2003/87 and of all greenhouse gases specified in relation to those activities, while avoiding double-counting, justify the conclusion that the loss of fuel is not to be regarded as coal exported from the installation within the meaning of the first subparagraph of Article 27(2) of that regulation. (see paras 39, 40, operative part 2)