Trinseo Deutschland Anlagengesellschaft mbH v Bundesrepublik Deutschland.
Date: 2018-02-28
31


It must be recalled that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court make no provision for interested parties to submit observations in response to the Advocate General’s Opinion (Vnuk, C‑162/13, EU:C:2014:2146, paragraph 30 and the case-law cited).
32


Pursuant to the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 25).
33


Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in his Opinion, cannot in itself constitute grounds justifying the reopening of the oral part of the procedure (judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 26).
34


However, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in accordance with Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union (judgment of 29 April 2015, Nordzucker, C‑148/14, EU:C:2015:287, paragraph 24).
39


It should be noted, as a preliminary point, that Directive 2003/87 has the purpose of establishing a scheme for greenhouse gas emission allowance trading, which aims to reduce greenhouse gas emissions in the atmosphere to a level that prevents dangerous anthropogenic interference with the climate system, with the ultimate objective of protection of the environment (see, inter alia, judgment of 8 March 2017, ArcelorMittal Rodange et Schifflange, C 321/15, EU:C:2017:179, paragraph 24).
40


There is an economic logic underlying the scheme which encourages a participant in that scheme to emit quantities of greenhouse gases that are less than the allowances originally allocated him, in order to sell the surplus to another participant who has emitted more than his allowance (see, inter alia, judgment of 8 March 2017, ArcelorMittal Rodange et Schifflange, C‑321/15, EU:C:2017:179, paragraph 22).
41


Directive 2003/87 therefore aims to reduce, by 2020, the overall greenhouse gas emissions of the European Union by at least 20% in comparison with 1990 levels, in an economically efficient manner (judgment of 8 September 2016, E.ON Kraftwerke, C‑461/15, EU:C:2016:648, paragraph 23).
42


As provided in Article 2(1) of Directive 2003/87, which defines the scope of that directive, the latter is to apply to ‘emissions from the activities listed in Annex I’, which refers, inter alia, in respect of CO2 emissions, to the ‘[p]roduction of bulk organic chemicals by cracking, reforming, partial or full oxidation or by similar processes, with a production capacity exceeding 100 tonnes per day’.
45


It should, however, be observed at the outset that, according to the very wording of Article 2(1) of Directive 2003/87, the activities referred to in Annex I to that directive fall within the scope of that directive and, therefore, of the emissions allowance trading scheme established by that directive only if they generate greenhouse gas ‘emissions’ listed in Annex II to that directive.
46


Accordingly, in order to determine whether an installation for the production of polymers, such as that at issue in the main proceedings, falls within the scope of Directive 2003/87, it is first of all necessary to ascertain, in accordance with Article 2(1) of that directive, whether that installation carries out activities which generate such ‘emissions’.
48


It thus follows from the very wording of that provision that, for there to be an ‘emission’ within the meaning of that provision, a greenhouse gas must be released into the atmosphere by an installation (judgment of 19 January 2017, Schaefer Kalk, C‑460/15, EU:C:2017:29, paragraph 32).
62


Not only would that double counting be contrary to the first paragraph of Article 5 of Regulation No 601/2012, but would also undermine, given that emissions related to heat production by an installation producing its own heat in an integrated manner would have to be declared only once, the preservation of conditions of competition, which constitutes one of the sub-objectives of the scheme established by Directive 2003/87 (see, inter alia, judgment of 22 June 2016, DK Recycling und Roheisen v Commission, C‑540/14 P, EU:C:2016:469, paragraph 50).
67


In that regard, it should be borne in mind that the allocation of those emission allowances free of charge falls, in accordance with Article 10a of Directive 2003/87, within the scope of transitional rules applicable solely to installations falling within certain sectors of activities; moreover the quantity of those allowances being allocated is to decrease gradually over the period 2013-2020, with a view to reaching their complete abolition in 2027 (see, to that effect, judgments of 8 September 2016, E.ON Kraftwerke, C‑461/15, EU:C:2016:648, paragraph 24, and of 26 October 2016, Yara Suomi and Others, C‑506/14, EU:C:2016:799, paragraph 46).
68


Only installations whose activities fall, in accordance with Article 2(1) of Directive 2003/87, within the scope of the emissions allowance trading scheme are eligible for the allocation of such free allowances. Neither Article 10a of that directive nor Decisions 2011/278 and 2013/448 can alter the scope of that directive (see, by analogy, judgment of 19 January 2017, Schaefer Kalk, C‑460/15, EU:C:2017:29, paragraphs 40 to 42).
69


Moreover, it is apparent from the very wording of Article 3(c) of Decision 2011/278 that an installation which exports the heat which it produces must be allocated emission allowances free of charge for that heat when it exports the heat ‘to an installation or other entity not covered by the Union scheme’ (judgment of 8 September 2016, Borealis and Others, C‑180/15, EU:C:2016:647, paragraph 117).
71


In that regard, it should be added that the difference in treatment resulting from the fact that an installation for the production of polymers producing, in an integrated manner, the heat needed for that purpose, unlike an installation, such as that at issue in the main proceedings, which obtains that heat from a third-party installation, is included in the emission allowance trading scheme, in respect of the ‘[c]ombustion of fuels’, within the meaning of Annex I to Directive 2003/87, is in no way discriminatory. In the light of the objective pursued by Directive 2003/87, recalled in paragraphs 39 to 41 of this judgment, there is an objective difference between an installation whose activities generate greenhouse gas emissions into the atmosphere and an installation whose activities do not generate such emissions (see, to that effect, judgment of 19 January 2017, Schaefer Kalk, C‑460/15, EU:C:2017:29, paragraph 47).