Judgment;Summary — ECLI:EU:C:2021:1048
Date: 2021-12-21
Language of the case: Czech
Court formation: Tenth Chamber
Subject matter: Environment;Pollution
Procedure: Reference for a preliminary ruling
Origin: Czechia

Summary of a request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
20 October 2020 
Referring court:  
Městský soud v Praze (Prague City Court, Czech Republic) 
Date of the decision to refer:  
29 September 2020 
Applicant:  
VÍTKOVICE STEEL, a.s. 
Defendant:  
Ministerstvo životního prostředí (Ministry of the Environment of 
the Czech Republic) 
  
Subject matter of the case in the main proceedings 
Interpretation and validity of Article 10(8) of Commission Decision 2011/278/EU 
Interpretation and validity of Article 1(1) and the third subparagraph of 
Article 1(2) of Commission Decision 2013/448/EU 
Free allocation of greenhouse gas emission allowances to installations that are no 
longer in operation 
Subject matter and legal basis of the request for a preliminary ruling 
Article 267 TFEU 
EN 
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Questions referred 
1. Does Article 10(8) of European Commission Decision 2011/278/EU of 
27 April 2011, read in conjunction with Annex I thereto, require emission 
allowances to be allocated free of charge for the period 2013 to 2020 to an 
installation operating a basic oxygen furnace process, where the input to that 
process is carbon-saturated liquid iron imported from another installation 
belonging to another operator, if at the same time it is ensured that there will be no 
double counting or double allocation of allowances in respect of the hot metal 
product? 
2. If the first question is answered in the negative, is Article 10(8) of European 
Commission Decision 2011/278/EU of 27 April 2011, read in conjunction with 
Annex I thereto, invalid with respect to the hot metal product on the grounds that 
it is incompatible with Article 2(1) of Directive 2003/87/EC of the European 
Parliament and of the Council, read in conjunction with Annex I thereto, or 
alternatively on the grounds that it is incomprehensible? 
3. If the second question is answered in the affirmative, is Article 1(1) of 
European Commission Decision 2013/448/EU of 5 September 2013 also invalid in 
respect of the installation bearing the identifier CZ-existing-CZ-52-CZ-0102–05 
given that it no longer has a legal basis? 
4. If the first question is answered in the affirmative, must Article 1(1) and the 
third subparagraph of Article 1(2) of European Commission Decision 
2013/448/EU of 5 September 2013 be interpreted in respect of the installation 
bearing the identifier CZ-existing-CZ-52-CZ-0102–05 as permitting the allocation 
of allowances for the hot metal product to that installation on the basis of a new 
application from the Czech Republic if double counting and double allocation of 
allowances are excluded? 
5. If the fourth question is answered in the negative, is Article 1(1) of European 
Commission Decision 2013/448/EU of 5 September 2013 invalid in respect of the 
installation bearing the identifier CZ-existing-CZ-52-CZ-0102–05 on the grounds 
that it is incompatible with Article 10(8) of European Commission Decision 
2011/278/EU of 27 April 2011, read in conjunction with Annex I thereto? 
6. If the third, fourth or fifth question is answered in the affirmative, how 
should an authority of a Member State proceed under EU law where that authority 
has failed, contrary to EU law, to allocate free emission allowances to the operator 
of an installation which operates a basic oxygen furnace process if the installation 
concerned is no longer in operation and the period for which the allowances were 
allocated has already ended? 
Relevant provisions of EU law 
Commission Decision 2011/278, Article 10(8) and Annex I 
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Commission Decision 2013/448, Article 1(1) and the third subparagraph of 
Article 1(2)  
Directive 2003/87/EC of the European Parliament and of the Council, in particular 
Article 2(1) 
Relevant provisions of national law 
Zákon č. 383/2012 Sb., o podmínkách obchodování s povolenkami na emise 
skleníkových plynů (Law No 383/2012 on the conditions of greenhouse gas 
emission allowance trading, ‘the Law on Emission Allowances’), Paragraph 10(1) 
Succinct presentation of the facts and procedure in the main proceedings 
1 Until 30 November 2015, the applicant operated an installation known as 
Ocelárna I (Steelworks I, ‘the installation at issue’) where a basic oxygen furnace 
process was operated, that is to say, a process which is part of the steel production 
process where the input is carbon-saturated liquid iron imported into the 
installation at issue from an installation operated by the company ArcelorMittal 
Ostrava a.s. 
2 The dispute between the applicant and the defendant concerns the question 
whether the applicant should have been allocated free emission allowances for the 
period 2013 to 2020 in connection with the operation of the installation at issue. 
The applicant’s position that it should have been allocated free emission 
allowances is based on Annex I to Decision 2011/278, which lists the basic 
oxygen furnace process, in connection with the hot metal product, as one of the 
processes to which emission allowances are to be allocated free of charge. 
Initially, the defendant agreed with the applicant’s view that free allowances 
should be allocated to it, and therefore included the installation at issue in the draft 
list of installations to which free allowances would be allocated. This draft list was 
submitted to the Commission pursuant to Article 11(1) of Directive 2003/87 in the 
wording applicable during the period 2013 to 2020. The installation at issue was 
notified with the identifier CZ-existing-CZ-52-CZ-0102–05. 
3 However, in Article 1(1) of Decision 2013/448, read in conjunction with point C 
of Annex I thereto, the Commission rejected the inclusion of the installation at 
issue in that list and the corresponding preliminary quantities of allowances 
allocated. In this respect, in recital 14 of that decision, the Commission indicated, 
inter alia, that the installation at issue does not produce hot metal but imports it 
[from another installation], which may give rise to double counting. 
4 As a result, the defendant adopted an interpretation of Decision 2013/448 
according to which the installation at issue could be allocated free emission 
allowances on condition that the risk of double counting of allowances for both 
the applicant’s installation and the installation operated by ArcelorMittal Ostrava, 
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where the hot metal fed to the applicant’s installation was produced, is eliminated. 
The defendant informed the Commission of its position by letter of 27 May 2013. 
5 In his letter of 30 May 2013, the Director-General of the Commission’s 
Directorate-General for Climate Action explained that, in legal terms, the 
Commission takes the view that no free allowances can be allocated to the 
applicant’s installation. Instead, all free allowances in connection with the process 
in question should be allocated to the installation operated by ArcelorMittal 
Ostrava, since it is the entity that produces hot metal. In the Commission’s view, 
therefore, the only possibility was to allocate all the allowances to the installation 
producing hot metal as an intermediate product, whereas a possible transfer of 
some of those allowances to the installation at issue could be effected on the basis 
of a civil-law contract between the applicant and ArcelorMittal Ostrava. 
6 The defendant, in cooperation with both companies concerned, calculated an 
allocation of free emission allowances to the applicant and to ArcelorMittal 
Ostrava such that, in the view of the defendant, the double counting and allocation 
of allowances for the hot metal product would be ruled out, while at the same the 
ratio of emissions released by the two installations would be reflected. Both 
companies agreed to that division of allowances. Subsequently, the ministr 
životního prostředí (Minister for the Environment, Czech Republic) contacted the 
Commissioner for Climate Action by letter of 26 June 2013, in which he presented 
the Czech Republic’s proposal for the division of allowances between the 
operators of both installations and expressed his confidence that this proposal 
would remove the concerns expressed by the Commission in earlier 
correspondence. 
7 The Commissioner replied to the Minister by letter of 16 July 2013, in which she 
maintained the Commission’s previous position. 
8 Consequently, by letter of 16 October 2013, the Minister for the Environment 
made it known that, although he did not agree with the Commission’s 
interpretation, he would notify the preliminary allocation of all allowances 
exclusively to the installations operated by ArcelorMittal Ostrava. 
9 Subsequently, by decision of 23 July 2014, the defendant allocated to the 
applicant for the period 2013 to 2020 a number of free allowances which did not 
include any allowances for the installation at issue. The applicant brought an 
appeal against that decision, which was dismissed by decision of the Minister for 
the Environment of 12 November 2014. Both decisions of the defendant were 
essentially based on the view that Decision 2013/448 prevented the allocation of 
free allowances to the applicant’s installation at issue. In other words, the 
defendant accepted the Commission’s view, with which it had previously 
disagreed. 
10 The applicant brought an action before the referring court against the decision of 
the Minister for the Environment regarding its appeal; the action was dismissed by 
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judgment of 9 February 2017. Subsequently, the applicant brought an appeal on a 
point of law against that judgment. The Nejvyšší správní soud (Supreme 
Administrative Court, Czech Republic) upheld the applicant’s appeal and set aside 
the first-instance judgment of the referring court by judgment of 23 February 
2018. Consequently, the contested decision of the Minister for the Environment 
and the original decision of the first instance authority on the allocation of 
allowances were also annulled. 
11 Subsequently, by decision of 13 August 2018, the defendant, as the administrative 
authority of first instance, allocated to the applicant exactly the same number of 
free allowances for the period 2013 to 2020 as were allocated to it in the original 
decision of 2014. The applicant brought another appeal against that decision, 
which was dismissed by decision of the Minister for the Environment of 
31 December 2018. The Minister maintained the position already presented in the 
2014 decisions. In addition, he stated that, since the Commission did not adopt a 
decision approving the allocation of free allowances to the installation at issue, no 
decision could be adopted on the allocation of those allowances, since, in short, 
the Commission would not actually release those allowances regardless. The 
Minister also pointed out that the applicant had not operated the installation at 
issue since 2015 and therefore could not claim allowances in respect of that 
installation after that point in time. Moreover, in the years in which it had operated 
the installation, it had a surplus of allowances allocated free of charge and 
therefore could have suffered no damage. 
12 The applicant brought a new action before the referring court against the last of 
the Minister for the Environment’s decisions referred to above. The referring court 
has reached the conclusion that it is necessary to make a reference to the Court of 
Justice for a preliminary ruling under Article 267 TFEU. 
Grounds for the reference for a preliminary ruling 
General remarks 
13 As explained above, in connection with the present action the referring court is 
examining the legal question of whether, under the relevant EU acts, free 
allowances should have been allocated to the applicant in connection with the 
operation of the installation at issue. 
14 Under national law, the allocation process in specific cases is governed by the first 
sentence of Paragraph 10(1) of the Law on Emission Allowances, which refers to 
a procedure conducted under the relevant provisions of EU law. Therefore, the 
dispute concerns only the interpretation and, possibly, also the validity of the 
applicable EU acts, in particular Decision 2011/278, in the light of Directive 
2003/87 and Decision 2013/448. The relevant provisions of EU acts are not 
unequivocal and have not yet been interpreted by the Court of Justice, and 
therefore there is no acte clair or acte éclairé within the meaning of the Court’s 
judgment of 6 October 1982, CILFIT, C-283/81, ECLI:EU:C:1982:335, 
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paragraphs 14 and 16. Although the referring court is not a court or tribunal of last 
instance which would have been required to request a preliminary ruling, due to 
considerations of procedural economy and the fact that the ruling may also 
concern the validity of EU acts, the referring court has decided to exercise its 
optional jurisdiction in this regard. 
Admissibility of the questions concerning the validity of Decisions 2011/278 and 
2013/448 
15 Under point (b) of the first paragraph of Article 267 TFEU, a national court or 
tribunal may refer a question on the validity of an EU act to the Court of Justice 
for a preliminary ruling if such a question arises in a case. In this respect, the 
principle applies that the preliminary ruling procedure may also concern questions 
which could be the subject of an action for annulment under Article 263 TFEU 
(judgments of the Court of Justice of 12 December 1972 in Joined Cases 21/72 to 
24/72, International Fruit Company and Others, ECLI:EU:C:1972:115, 
paragraph 5, and of 3 July 2019, Eurobolt, C-644/17, ECLI:EU:C:2019:555, 
paragraph 26). 
16 Pursuant to the fourth paragraph of Article 263 TFEU, an action for the annulment 
of an EU act may be brought by any person directly concerned by the act in 
question, within two months from the date of the publication of that act. If a 
person who could undoubtedly have brought an action for annulment fails to bring 
such an action within the two-month period, that person cannot subsequently call 
into question the validity of the act in question before the national courts 
(judgments of the Court of Justice of 9 March 1994, TWD Textilwerke 
Deggendorf, C-188/92, ECLI:EU:C:1994:90, paragraph 17, and of 25 July 2018, 
Georgsmarienhütte and Others, C-135/16, ECLI:EU:C:2018:582, paragraph 14). 
17 This ground of inadmissibility does not apply to Decision 2011/278, since the 
applicant clearly did not have the standing to challenge that decision, which was 
not directly addressed to it. By contrast, with regard to Decision 2013/448, 
although the applicant had standing to bring an action for its annulment, it failed 
to bring such an action. Nevertheless, the third and fifth questions are not 
inadmissible. 
18 First, the referring court has referred all the questions as it sees fit and it is not 
merely a matter of the court accepting the applicant’s arguments as its own. The 
basic principle is that a question referred for a preliminary ruling by a court or 
tribunal of a Member State of its own motion cannot be inadmissible even where 
the entity concerned could have brought an action for annulment under the fourth 
paragraph of Article 263 TFEU but failed to do so within the period prescribed 
(judgment of the Court of Justice of 10 January 2006, Cassa di Risparmio di 
Firenze and Others, C-222/04, ECLI:EU:C:2006:8, paragraphs 72 to 74). 
19 Secondly, Decision 2013/448 was not addressed directly to the applicant and it 
was only in the judgment of the General Court of 26 September 2014, DK 
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Recycling and Roheisen v Commission, T-630/13, ECLI:EU:C:1972:115, that the 
applicant acquired standing. At that time, however, the applicant could no longer 
bring an action, since the two-month period for bringing it had expired. Therefore, 
it cannot be claimed that the applicant allowed the period for bringing an action, 
which it could undoubtedly have brought, to lapse. 
20 Thirdly, even if the applicant’s standing to bring an action for the annulment of 
Decision 2013/448 were unquestionable, in the particular circumstances of the 
present case, the applicant acted in good faith by not bringing that action, as the 
applicant could have legitimately interpreted the third subparagraph of 
Article 1(2) of Decision 2013/448 as meaning that, if the Czech Republic 
submitted a new proposal which excluded double counting [of allowances], the 
allocation of free emission allowances to the installation at issue would in future 
be approved by the Commission. The applicant was also supported in that view by 
the defendant, which attempted to reach a compromise with the Commission only 
after Decision 2013/448 had been adopted. It was only after the negotiations 
between the defendant and the Commission had failed that the applicant became 
aware that no allowances would be allocated to the installation at issue and by that 
time the period for bringing an action for the annulment of Decision 2013/448 had 
already expired. Therefore, it cannot be claimed that by not bringing the action in 
question, the applicant failed to protect its rights in time. 
21 The referring court therefore accepts that all the questions submitted are 
admissible. 
First, second and third questions 
22 The subject matter of the first question and the essence of the entire case is the 
question whether, under EU law, the applicant should have been allocated free 
allowances for the period 2013 to 2020 in respect of the installation at issue. The 
Commission and the defendant claim that this was not the case, and they submit 
two closely related arguments. First, for an installation using a basic oxygen 
furnace, Annex I to Decision 2011/278 indicates, as an output, carbon-saturated 
liquid iron, which, however, in the applicant’s installation, is an input rather than 
an output of the basic oxygen furnace process, and thus no allowances can be 
allocated in respect of that product. Secondly, Article 10(8) of Decision 2011/278 
prohibits the double allocation of allowances for the same product, which, 
according to the Commission, can only be ensured in the present case by the non-
allocation of allowances to the applicant’s installation at issue. 
23 As regards the first argument, the referring court points out that the activities 
carried out using the installation at issue fulfilled the conditions laid down in 
Article 2(1) of Directive 2003/87 and were therefore covered by the emissions 
trading scheme (judgment of the Court of Justice of 28 February 2018, Trinseo 
Deutschland, C-577/16, ECLI:EU:C:2018:127, paragraph 45). The economic 
logic underlying the emissions trading scheme encourages all participants in that 
scheme to emit quantities of greenhouse gases that are less than the allowances 
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originally allocated to them, in order to sell the surplus to another participant who 
has emitted more than his allowance (Court of Justice judgment of 8 March 2017, 
ArcelorMittal Rodange et Schifflange, C-321/15, ECLI:EU:C:2017:179, 
paragraph 22). If, contrary to the directive, no free allowances are allocated to an 
installation to be covered by the trading scheme, this would contradict the 
economic logic presented above. 
24 Pursuant to Article 10a(1) and (5) of Directive 2003/87, installations operating a 
basic oxygen furnace process are to be allocated free allowances for the period 
2013 to 2020. Under that provision, the Commission was empowered to adopt 
implementing measures, which it did when adopting Decision 2011/278. This 
decision is based on the principle that ex-ante benchmarks in individual sectors or 
sub-sectors should be calculated for products rather than inputs (see recital 2 of 
Decision 2011/278). Therefore, Annex I to Decision 2011/278, which sets out the 
definition of product benchmarks, is structured in such a manner that it always 
indicates the product, its definition and the definition of the processes covered. 
25 However, in the case of the hot metal product, Annex I is structured differently in 
that the product covered is defined as ‘liquid iron saturated with carbon for 
further processing’, while one of the processes covered in relation to this product 
is a process related to a basic oxygen furnace. As an intermediate product within 
the entire production chain, hot metal always occurs as the input and never as the 
output of a basic oxygen furnace process. 
26 The Commission’s view, expressed in recital 14 of Decision 2013/448, that in the 
case of a basic oxygen furnace process it is by nature impossible to allocate free 
allowances for the hot metal product because ‘the installation […] does not 
produce, but imports hot metal’, cannot be considered correct because it would 
mean that, although the process in question is clearly indicated for the hot metal 
product in Decision 2011/278, free allowances could never be allocated in respect 
of this process, because hot metal is always the input and not the output of this 
process. Since the basic oxygen furnace process is listed in the Annex to Decision 
2011/278, and it is listed precisely in connection with the hot metal product, it is 
clear that the free allowances associated with that product are intended for that 
process. If a contrary interpretation were to be adopted, this part of Annex I to 
Decision 2011/278 would be rendered obsolete from the outset. 
27 To accept the Commission’s interpretation would be to undermine the legitimate 
expectations of all stakeholders who, based on the unequivocal wording of 
Decision 2011/278, could legitimately expect that free allowances would be 
allocated to basic oxygen furnace processes. Moreover, the conduct of the 
Commission, which first explicitly formulated the implementing measures in such 
a manner that the hot metal product category included a basic oxygen furnace 
process and subsequently, in its decision-making practice, began to interpret this 
measure as meaning that a basic oxygen furnace process could not be included in 
relation to the product concerned, would be contrary to the duty to act in good 
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faith before the Regulatory Procedure with Scrutiny Committee with which the 
Commission was obliged to discuss Decision 2011/278. 
28 As regards the Commission’s second argument concerning the prohibition of 
double allocation of allowances to the same product, the referring court points to 
the wording of Article 10(8) of Decision 2011/278, which states that ‘in 
particular, where an intermediate product that is covered by a product benchmark 
according to the definition of the respective system boundaries set out in Annex I 
is imported by an installation, emissions shall not be double counted’. This is 
precisely the situation in the applicant’s case, since its installation received [from 
another installation] an intermediate product (liquid iron) to which the definition 
of the benchmark for the basic oxygen furnace process referred. An entirely 
natural solution in this situation is to divide the allowances for the hot metal 
product between the installation from which the liquid iron is imported (operated 
by ArcelorMittal Ostrava) and the applicant’s installation, in which the basic 
oxygen furnace process is carried out, in proportion to the CO2 emissions which 
arise during both processes. The fact that such a fair division is possible has been 
demonstrated, because in 2013 the defendant agreed precisely such a procedure 
with the applicant and ArcelorMittal Ostrava. 
29 The solution put forward by the Commission, according to which all allowances 
would be allocated exclusively to ArcelorMittal Ostrava, which would 
subsequently transfer them free of charge to the applicant under a civil-law 
contract, is unacceptable. In that regard, it should be pointed out that under 
Paragraph 10(1) of the Law on Emission Allowances, read in conjunction with 
Article 2(1) of Directive 2003/87, the applicant had a right under public law to be 
allocated free allowances. The applicant cannot be deprived of that right by being 
told to enter into a civil-law contract which another private-law entity may or may 
not conclude with it. Furthermore, this solution is incompatible with the very 
purpose of the prohibition of double allocation, which, according to recital 18 of 
Decision 2011/278, is ‘to avoid any distortion of competition and to ensure an 
orderly functioning of the carbon market’. If the granting of allowances to one 
operator were made dependent on another operator without a valid reason, there 
would be a risk of serious distortions of competition in relations between those 
operators, which would in turn undermine the objective of the decision. 
30 The referring court stresses that the present case is different from the case in 
which the judgment of the Court of Justice of 8 September 2016, Borealis and 
Others, C-180/15, ECLI:EU:C:2016:647, was delivered, since, in the present case, 
as opposed to the one referred to above, there was no double counting of 
emissions in respect of the same product, nor were allowances allocated twice to 
the same emissions – it was only that allowances relating to the same product 
were divided between two companies in proportion to emission levels. 
31 For all the reasons set out above, the referring court therefore considers that the a 
priori prohibition of double counting and allocation does not preclude an 
installation in which the basic oxygen furnace process is carried out from being 
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allocated an appropriate part of the allowances for the hot metal product in 
proportion to the emissions produced by that process. 
32 In the view of the referring court, none of the Commission’s arguments are 
substantiated and the first question must therefore be answered in the affirmative. 
33 However, if the first question is answered in the negative, the question of the 
validity of Article 10(8) of Decision 2011/278, read in conjunction with Annex I 
thereto, with regard to the hot metal product should be considered, since, if the 
first question is answered in the negative, no allowances would be allocated to an 
installation in which a process is carried out that is covered by the emissions 
trading scheme and to which the Commission expressly intended to allocate free 
allowances. Such a conclusion would be unacceptable in the light of Article 2(1) 
of Directive 2003/87 as interpreted in the Trinseo Deutschland judgment cited 
above. Therefore, Decision 2011/278 should be annulled for infringement of the 
directive on the basis of which it was adopted. 
34 In addition, this would lead to a situation where, although a basic oxygen furnace 
process is listed in Annex I to Decision 2011/278 among the processes to which 
free allowances are to be allocated for the hot metal product, no allowances could 
in fact ever be allocated to that process. Therefore, the decision would include an 
internal contradiction that cannot be removed and, in the view of the referring 
court, it should, for this reason also, be annulled. 
35 If the second question is answered in the affirmative, the question would 
obviously arise as to whether Article 1(1) of Decision 2013/448 is invalid as well 
in respect of the installation at issue, since, by that decision, the Commission 
rejected the Czech Republic’s proposal to allocate free allowances to the 
applicant. The referring court considers it obvious that if Decision 2011/278, 
which provided the legal basis for Decision 2013/448, were to be invalid, 
Decision 2013/448 would also necessarily be invalid given that it would no longer 
have a legal basis. 
Fourth and fifth questions  
36 If the first question is answered in the affirmative, the fourth question referred 
should be examined: whether Decision 2013/448 may be interpreted as allowing 
the Czech Republic to submit another application for approval of the allocation of 
allowances to the applicant’s installation if it is ensured that there will be no 
double counting or allocation. 
37 In its correspondence with the defendant after Decision 2013/448 had been issued, 
the Commission categorically stated that it would never agree to allowances being 
allocated to the installation at issue, but it relied on two arguments which would 
prove unsubstantiated if the first question is answered in the affirmative. Decision 
2013/448 itself does not contain the categorical conclusions which the 
Commission subsequently put forward. On the contrary, in the third subparagraph 
of Article 1(2) of the decision, the Commission indicated in respect of the 
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installation at issue that no objections were raised to the allocation of allowances 
in a manner excluding double counting. 
38 In the view of the referring court, Decision 2013/448 can be interpreted, in 
accordance with the EU acts on the basis of which it was adopted, as meaning that 
if the Czech Republic again proposes to allocate free allowances to the applicant’s 
installation at issue, this time in a manner which would certainly prevent the 
double counting (and double allocation) of allowances, the Commission should 
approve that proposal. Therefore, the fourth question should be answered in the 
affirmative. 
39 If, however, the Court of Justice were to answer the fourth question in the 
negative, then, in the view of the referring court, the fifth question should be 
answered, namely, whether the decision in question is invalid in respect of the 
applicant’s installation. If it follows from the answer to the first question that 
allowances should have been allocated to the applicant’s installation, and at the 
same time Decision 2013/448 precludes such an allocation, that decision should 
be annulled as being contrary to both Decision 2011/278 and indirectly Directive 
2003/87. 
Sixth question  
40 If the third, fourth or fifth question is answered in the affirmative, the sixth 
question should be answered. 
41 For the purposes of reviewing the contested decision of the Minister for the 
Environment, the referring court refers to the factual and legal situation existing at 
the date when the contested decision was issued, that is to say, 31 December 2018, 
when the installation at issue was no longer in operation. At the same time, it is 
highly probable that the period 2013 to 2020 will end before the referring court 
delivers its ruling. 
42 Therefore, it is not clear how the defendant should proceed if its decision is 
annulled. According to the referring court, the only acceptable solution is for the 
defendant to request the Commission to approve an additional allocation of the 
correct quantity of allowances for the period 2013 to 2020, and then the defendant 
should allocate those allowances by way of a decision, including allowances for 
the installation at issue until 2015 when it ceased to operate. Both the defendant’s 
and the Commission’s decisions will be of purely theoretical significance, since in 
actual fact the allowances can no longer be transferred to the applicant as they 
would no longer be of any use to it given the expiry of the [reference] period. 
However, these allowances will serve as a basis for any subsequent legal 
relationships, in particular in connection with the question of redress, and it is 
only in this manner that the applicant’s individual case can be resolved in line 
with EU law.