Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 9 February 2022 – Gruppo Mauro Saviola Srl v Ministero della Transizione Ecologica, Comitato nazionale per la gestione della direttiva 2003/87/CE e per il supporto nella gestione delle attività di progetto del protocollo di Kyoto
(Case C-94/22)
Language of the case: Italian
Referring court
Tribunale Amministrativo Regionale per il Lazio
Parties to the main proceedings
Applicant: Gruppo Mauro Saviola Srl
Defendants: Ministero della Transizione Ecologica, 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
Is the decision taken by the Italian national committee for the management of Directive 2003/87/EC 1 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, 2 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?
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?
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 produces electricity entirely for its own consumption, feeding that electricity into the public grid intermittently only when the installations intended to receive the energy are temporarily shut down for operational reasons?
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 does not provide an incentive for own consumption of electricity through the allocation of free CO2 emission allowances for those installations that use it?
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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).
1     Commission Delegated Regulation (EU) 2019/331 of 19 December 2018 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 2019 L 59, p. 8).