Case C‑457/15

Vattenfall Europe Generation AG

v

Bundesrepublik Deutschland

(Request for a preliminary ruling from the

Verwaltungsgericht Berlin)

‛Reference for a preliminary ruling — Scheme for greenhouse gas emission allowance trading within the European Union — Directive 2003/87/EC — Temporal scope — Time when the emissions trading obligation arises — Article 3 — Annexe I — Concept of ‘installation’ — Combustion of fuels in installations with a total rated thermal input exceeding 20 MW)’

Summary — Judgment of the Court (Sixth Chamber), 28 July 2016

Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Scope — Greenhouse gas emissions generated by an installation covered by the directive before the date of the first generation of electricity — Included

(European Parliament and Council Directive 2003/87, as amended by Directive 2009/29, Art. 2(1), 3(u), and 10a(5) and Annex I)

In so far as Annex I to Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community, as amended by Directive 2009/29, includes the ‘combustion of fuels in installations with a total rated thermal input exceeding 20 MW’ in the list of categories of activities to which that directive applies, it must be interpreted as meaning that the emissions trading obligation of an installation for the generation of electricity starts on the date of the first emissions of greenhouse gases, and thus potentially before the date of the first generation of electricity.

An installation for the generation of electricity from the combustion of fuels whose production capacity exceeds the value set out in Annex I to Directive 2003/87 is subject to the obligations of the emissions trading scheme and, in particular, to the reporting obligation, with respect to emissions from all sources and source streams belonging to activities carried out at the installation, including the emissions generated during a trial period preceding the start of normal operation of that installation. That interpretation cannot be invalidated by the fact that the classification of an installation as an electricity generator, within the meaning of Article 3(u) of that directive, is subject to the condition that it produce electricity for sale to third parties. That provision does not seek to define the scope of Directive 2003/87 but contributes to the implementation of a distinction which is important for the determination of the maximum annual amount of allowances within the meaning of Article 10a(5) of that directive. Likewise, the fact that those obligations are addressed to operators of an installation does not mean that the emissions generated during trials performed by the constructor of those installations may not be taken into account. First, the concept of ‘electricity generator’ referred to in Article 3(u) of Directive 2003/87 is not relevant for the purposes of the start of the emissions trading obligation. Secondly, the operator’s reporting and surrender obligations concerns also those emissions, since the emissions trading system applies, in accordance with Article 2(1) of that directive, to all emissions from the activities listed in Annex I to that directive.

(see paras 38-40, 42, 43, operative part)