Opinion of the Advocate General — ECLI:EU:C:2019:167
Date: 2019-02-28
Language of the case: German
Subject matter: Environment;Pollution
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Germany

Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 6 December 2017 — ExxonMobil Production Deutschland GmbH v Bundesrepublik Deutschland (Case C-682/17) Language of the case: German Referring court Verwaltungsgericht Berlin Parties to the main proceedings Applicant: ExxonMobil Production Deutschland GmbH Defendant: Bundesrepublik Deutschland Questions referred 1. Is an installation which produces a product the production of which is not one of the activities referred to in Annex I to Directive 2003/87/EC 1 (such as, in this case, the production of sulphur) and which, at the same time, carries on the activity of ‘combustion of fuels in installations with a total rated thermal input exceeding 20 MW’ that is subject to the emission trading scheme pursuant to Annex I to Directive 2003/87/EC, an electricity generator within the meaning of Article 3(u) of Directive 2003/87/EU, in the case where a secondary facility within the same installation also produces electricity for that installation and a (small) proportion of that electricity is released for consideration to the public electricity network? 2. If the first question is answered in the affirmative: If an installation as described in Question 1 is an electricity generator within the meaning of Article 3(u) of Directive 2003/87/EC, is that installation eligible for an allocation for heat under Commission Decision 2011/278/EU 2 even in the case where the heat satisfies the conditions laid down in Article 3(c) of Decision 2011/278/EU but does not fall within any of the categories referred to in Article 10a(1), third subparagraph, (3) and (4) of Directive 2003/87/EC — heat from the combustion of waste gases for the production of electricity, district heating and high-efficiency cogeneration? 3. If, on the basis of the answers to the first two questions, the heat produced in the installation at issue is eligible for an allocation: Does the CO2 released into the atmosphere as part of the conditioning of natural gas (in the form of sour gas) in the ‘Claus process’, whereby the CO2 inherent in natural gas is separated from the gas mixture, constitute an emission which, for the purposes of the first sentence of Article 3(h) of Commission Decision 2011/278/EU, occurs as a result of the process referred to in Article 3(h)(v)? a) For the purposes of the first sentence of Article 3(h) of Commission Decision 2011/278/EU, can CO2 emissions occur ‘as a result of’ a process in which the CO2 inherent in the raw material is physically separated from the gas mixture and released into the atmosphere, even though that process as such does not give rise to additional carbon dioxide, or does that provision make it mandatory for the CO2 released into the atmosphere to occur for the first time as a result of that process? b) Is a carbon-containing raw material ‘used’ within the meaning of Article 3(h)(v) of Commission Decision 2011/278/EU where, in the ‘Claus process’, the naturally-occurring gas is used to produce sulphur and, in the course of that procedure, the carbon dioxide inherent in the natural gas is released into the atmosphere, even though the carbon dioxide inherent in the natural gas is not part of the chemical reaction taking place in that process, or does the term ‘use’ make it mandatory for the carbon to be part of, or indeed essential to, the chemical reaction taking place? 4. If Question 3 is answered in the affirmative, on the basis of which benchmark is the allocation of free emissions allowances to be carried out in the case where an installation subject to the emission trading scheme satisfies both the defining conditions of a heat benchmark sub-installation and the defining conditions of a process emissions sub-installation? Does entitlement to an allocation on the basis of the heat benchmark take priority over entitlement to an allocation for process emissions or does entitlement to an allocation for process emissions take precedence over the heat benchmark and the fuel benchmark because the latter allocation is more specific to the case in question? ____________ 1 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 (OJ 2003 L 275, p. 32). 2 2011/278/EU: Commission Decision 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 (OJ 2011 L 130, p. 1).