Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 9 February 2022 — Fenice — Qualità per l’ambiente SpA v Ministero della Transizione Ecologica and Others

(Case C-91/22)

(2022/C 191/18)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Fenice — Qualità per l’ambiente SpA

Defendants: Ministero della Transizione Ecologica, Ministero dello Sviluppo Economico, 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

1. 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?

2. 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?

3. 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 marginally generates electricity from non-high-efficiency cogeneration, characterised by a variety of thermal energy sources other than cogeneration qualifying for the allocation of free emission allowances?

4. 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 completely excludes an installation that uses a variety of energy sources, without separating out the emission values relating to heat sources other than cogeneration, which are fully entitled to receive the benefits provided for?

(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) 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).