Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 8 February 2021 — Wacker Chemie AG v Bundesrepublik Deutschland represented by the Umweltbundesamt

(Case C-76/21)

(2021/C 182/42)

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Wacker Chemie AG

Defendant: Bundesrepublik Deutschland represented by the Umweltbundesamt

Questions referred

1. Is the definition of capacity extension in the Commission’s ETS Guidelines (OJ 2012 C 158, p. 4), (1) whereby the installation can be operated at a capacity that is at least 10 % higher compared to the installation’s initial installed capacity before the change and it results from a physical capital investment (or a series of incremental physical capital investments) to be interpreted as meaning that this depends on: (a) a causal link between the physical capital investment and an extension of the technically and legally possible maximum capacity; or (b) in keeping with Article 3(i) and (l) of Commission Decision 2011/278/EU of 27 April 2011, a comparison with the average of the 2 highest monthly production volumes within the first 6 months following the start of changed operation?

2. If point 1(b) applies, is Article 3(i) of Commission Decision 2011/278/EU (2) of 27 April 2011 to be interpreted as meaning that it depends not on the scope of the extension of the technically and legally possible maximum capacity, but solely on the average values referred to in Article 3(l) of Decision 2011/278, irrespective of whether and to what extent they follow from the physical change made or a higher load?

3. Is the term ‘initial installed capacity’ in Annex I to the ETS Guidelines to be interpreted in accordance with Article 7(3) of Decision 2011/278/EU?

4. Is a decision by the European Commission not to raise objections to a notified State aid scheme to be interpreted as meaning: (a) that it finds that the national scheme is compatible overall with the State aid guidelines even with regard to additional references in the national aid scheme to other provisions of national law; or (b) that the national aid scheme and the other provisions of national law are to be interpreted as meaning that they must as a result comply with the aid guidelines?

5. If 4(a) applies, is a decision by the European Commission not to raise objections to a notified State aid scheme binding on the national court with regard to the finding that it complies with the relevant aid guidelines?

6. Does the fact that the European Commission refers to its aid guidelines in a decision not to raise objections to a notified State aid rule and examines the compatibility of the notified aid based on the guidelines mean that those guidelines are binding on the Member State for the purpose of the interpretation and application of the approved aid scheme?

7. Is Article 10a(6) of Directive 2003/87/EC, (3) as amended by Directive (EU) 2018/410, which states that the Member States should adopt financial measures to compensate for indirect CO2 costs, relevant to the interpretation of point 5 of the ETS Guidelines, which states that aid must be limited to the minimum needed to achieve the environmental protection sought?

(1) Communication from the Commission — Guidelines on certain State aid measures in the context of the greenhouse gas emission allowance trading scheme post-2012 (OJ 2012 C 158, p. 4).

(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).

(3) 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).