Yara Suomi Oy and Others v Työ-ja elinkeinoministeriö.
Date: 2016-10-26
23


It is apparent from Article 3(u) of Directive 2003/87 that an installation that has produced electricity for sale to third parties and in which no activity listed in Annex I is carried out other than the combustion of fuels must be categorised as an ‘electricity generator’.
24


In so far as the waste gases were combusted by electricity generators, the corresponding emissions were not taken into account when establishing the maximum annual quantity of allowances (judgment of 28 April 2016, Borealis Polyolefine and Others, C‑191/14, C‑192/14, C‑295/14, C‑389/14 and C‑391/14 to C‑393/14, EU:C:2016:311, paragraph 74).
25


Similarly, under Article 10a(3) and (5) of Directive 2003/87 emissions from the generation of heat through cogeneration were not taken into account for the purposes of determining the maximum annual quantity of allowances in so far as they originate from electricity generators (see, to that effect, judgment of 28 April 2016, Borealis Polyolefine and Others, C‑191/14, C‑192/14, C‑295/14, C‑389/14 and C‑391/14 to C‑393/14, EU:C:2016:311, paragraph 75).
26


Article 15(3) of Decision 2011/278, which was adopted in order to implement Article 10a(5) of Directive 2003/87, does not permit account to be taken of emissions from electricity generators for determining the maximum annual quantity of allowances (see, to that effect, judgment of 28 April 2016, Borealis Polyolefine and Others, C‑191/14, C‑192/14, C‑295/14, C‑389/14 and C‑391/14 to C‑393/14, EU:C:2016:311, paragraph 68).
27


There is, however, nothing in a combined reading of the provisions of Directive 2003/87 and Decision 2011/278 to indicate that the Commission, in determining the maximum annual quantity of allowances, excluded emissions other than those attributable to electricity generators (see, to that effect, judgment of 28 April 2016, Borealis Polyolefine and Others, C‑191/14, C‑192/14, C‑295/14, C‑389/14 and C‑391/14 to C‑393/14, EU:C:2016:311, paragraphs 67, 70 and 72 to 76), a point confirmed by recitals 22 and 25 of Decision 2013/448. In particular, those recitals indicate that the Commission gathered information from the Member States and the EFTA countries participating in the EEA on whether the installations could be considered electricity generators or other installations covered by Article 10a(3) of Directive 2003/87.
29


Nevertheless, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court may also find it necessary to consider provisions of EU law which the national court has not referred to in its questions (judgment of 11 February 2015, Marktgemeinde Straßwalchen and Others, C‑531/13, EU:C:2015:79, paragraph 37).
32


The Court held in that judgment that, in not permitting account to be taken of emissions from electricity generators in the determination of the maximum annual quantity of allowances, Article 15(3) of Decision 2011/278 is consistent with the wording of Article 10a(5) of Directive 2003/87, read in conjunction with Article 10a(3) of that directive (see judgment of 28 April 2016, Borealis Polyolefine and Others, C‑191/14, C‑192/14, C‑295/14, C‑389/14 and C‑391/14 to C‑393/14, EU:C:2016:311, paragraph 68).
33


That interpretation is also consistent with the broad logic of Directive 2003/87 and the objectives which it pursues (judgment of 28 April 2016, Borealis Polyolefine and Others, C‑191/14, C‑192/14, C‑295/14, C‑389/14 and C‑391/14 to C‑393/14, EU:C:2016:311, paragraph 69).
37


In that regard, it should be noted that the Commission has a wide discretion to determine the benchmarks in individual sectors or sub-sectors under Article 10a(2) of Directive 2003/87. That exercise entails on its part choices as well as complex technical and economic assessments. The legality of a measure adopted in that area can be affected only if the measure is manifestly inappropriate (judgment of 8 September 2016, Borealis and Others, C‑180/15, EU:C:2016:647, paragraph 45).
38


According to recital 8 of Decision 2011/278, the Commission used, for the determination of benchmark values, as a starting point the arithmetic average of the greenhouse gas performance of the 10% most efficient greenhouse gas installations in 2007 and 2008 for which data were collected. It verified that the starting point sufficiently reflected the most efficient techniques, substitutes, alternative production processes, high efficiency cogeneration, efficient energy recovery of waste gases, use of biomass and capture and storage of CO2, where such facilities are available. Subsequently, the Commission supplemented those data by using, in particular, the data collected by or on behalf of the various European sector associations, based on defined rules, so-called ‘sector rule books’. As reference for these rule books, the Commission provided guidance on quality and verification criteria (judgment of 8 September 2016, Borealis and Others, C‑180/15, EU:C:2016:647, paragraph 46).
39


In addition, it is clear from recital 11 of Decision 2011/278 that, where no data were available or the data collected did not comply with the benchmarking methodology, information on present levels of emissions and consumptions and on most efficient techniques, mainly derived from the Reference Documents on Best Available Techniques (BREF) established in accordance with Directive 2008/1 was used to derive benchmark values. In particular, due to a lack of data on the treatment of waste gases, heat exports and electricity production, the values for the product benchmarks for coke and hot metal were derived from calculations of direct and indirect emissions based on information on relevant energy flows provided by the relevant BREF and default emission factors set out in Decision 2007/589 (judgment of 8 September 2016, Borealis and Others, C‑180/15, EU:C:2016:647, paragraph 47).
40


As for waste gases generated during the production of hot metal, according to recital 32 of Decision 2011/278 the product benchmarks take account of the efficient energy recovery of waste gases and emissions related to use of those gases. To that end, for the determination of the benchmark values for products of which the production generates waste gases, the carbon content of those waste gases has been taken into account to a large extent (judgment of 8 September 2016, Borealis and Others, C‑180/15, EU:C:2016:647, paragraph 48).
41


In those circumstances it does not appear that the Commission, in determining the benchmarks according to Article 10a(2) of Directive 2003/87, exceeded the limits of its discretion (judgment of 8 September 2016, Borealis and Others, C‑180/15, EU:C:2016:647, paragraph 49).
46


It should be observed in that regard that, under Article 10a(11) of Directive 2003/87, the quantity of allowances allocated free of charge for 2013, under Article 10a(4) to (7), corresponds to 80% of the quantity laid down in accordance with the measures referred to in Article 10a(1). Thereafter the free allocation is to decrease each year by equal amounts, resulting in 30% free allocation in 2020, with a view to reaching no free allocation in 2027.
47


Article 10a(12) of Directive 2003/87 provides for an exception to that rule. Thus, for 2013 and each year thereafter until 2020, the installations in those sectors or subsectors which are deemed to be exposed to a significant risk of carbon leakage are to receive, under Article 10a(1) of that directive, a quantity of free allowances representing 100% of the quantity determined in accordance with the measures referred to in Article 10a(1).
58


It should be noted in that regard that the Court has held previously that since the Commission did not determine the maximum annual quantity of allowances in accordance with the requirements of letter (b) of the first subparagraph of Article 10a(5) of Directive 2003/87, the correction factor laid down in Article 4 of, and Annex II to, Decision 2013/448 is also contrary to that provision (judgment of 28 April 2016, Borealis Polyolefine and Others, C‑191/14, C‑192/14, C‑295/14, C‑389/14 and C‑391/14 to C‑393/14, EU:C:2016:311, paragraph 98).
59


In those circumstances, the answer to the first and second questions referred is that Article 4 of, and Annex II to, Decision 2013/448, laying down the correction factor, are invalid (judgment of 28 April 2016, Borealis Polyolefine and Others, C‑191/14, C‑192/14, C‑295/14, C‑389/14 and C‑391/14 to C‑393/14, EU:C:2016:311, paragraph 99).