Schaefer Kalk GmbH & Co. KG v Bundesrepublik Deutschland.
Date: 2017-01-19
31


It is therefore crucial, for the correct operation of the scheme established by Directive 2003/87, for those emissions to be identified which must be taken into account by operators in that regard.
32


According to Article 3(b) of Directive 2003/87, ‘emissions’ are, for the purposes of that directive, defined as the release of greenhouse gases into the atmosphere from sources in an installation. It 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.
40


Those provisions thus lead to the CO2 transferred in such circumstances being regarded as falling under the definition of ‘emissions’ within the meaning of Article 3(b) of Directive 2003/87, despite not always being released into the atmosphere. By the second sentence of Article 49(1) of Regulation No 601/2012 and point 10(B) of Annex IV to that regulation, the Commission therefore broadened the scope of that definition.
41


Furthermore, it follows from that presumption that the operators concerned may not, in any circumstances, subtract the amount of CO2 transferred for the production of PCC from the aggregate emissions of their installations for the production of lime, despite the fact that that CO2 may not always be released into the atmosphere. Such an impossibility means that the allowances must be surrendered for all of the CO2 transferred for the production of PCC and may no longer be sold as excess, thus calling into question the allowance trading scheme in circumstances nevertheless consonant with the ultimate objective of Directive 2003/87, which seeks to protect the environment by means of a reduction of greenhouse gas emissions (as regards the aims of Directive 2003/87, see judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 31).
42


In adopting those provisions, the Commission therefore amended an essential element of Directive 2003/87.
43


Moreover, it does not appear, in the first place, that the guarantees taken as a whole arising, on the one hand, from the monitoring and reporting scheme provided for in Directive 2003/87 and from the provisions of Regulation No 601/2012 other than those at issue in the main proceedings, and arising, on the other, from the powers of review and verification conferred on the competent authorities of the Member States (see, to that effect, judgment of 29 April 2015, Nordzucker, C‑148/14, EU:C:2015:287, paragraph 37) would not be sufficient to avoid the risk of circumventing the emissions allowance scheme upon the transfer of greenhouse gases to an installation, such as that where the PCC is produced, not subject to that scheme.
45


In the second place, since Regulation No 601/2012 was adopted on the basis of Article 14(1) of Directive 2003/87 in order to clarify the monitoring and reporting conditions of greenhouse gas emissions, the scope of the provisions of that regulation which are at issue in the present case, and concern only such emissions within the meaning of Article 3(b) of Directive 2003/87, cannot be affected by other provisions of that directive relating to the production of CO2 and taken into account, inter alia, for the establishment of the ‘ex-ante benchmarks’ referred to in Article 10a of the same directive.
47


In the third place, it is undoubtedly the case that, although the principal objective of the scheme for greenhouse gas emission allowance trading is to reduce emissions of such gases substantially, one of its sub-objectives is to preserve the integrity of the internal market and of conditions of competition (see, to that effect, judgments of 29 March 2012, Commission v Estonia, C‑505/09 P, EU:C:2012:179, paragraph 79, and of 22 June 2016, DK Recycling und Roheisen v Commission, C‑540/14 P, EU:C:2016:469, paragraphs 49 and 50). However, as the Advocate General noted in point 49 of her Opinion, there is an objective difference between an operator who releases greenhouse gases into the atmosphere and an operator who avoids such emissions by chemically transforming the CO2 produced into a new, stable chemical in which it is bound. Consequently, although as far as the scheme for greenhouse gas emission allowance trading is concerned such a difference allows the second operator to hold onto a greater allowance than the first, that difference cannot be regarded per se as distorting competition between those two operators.
49


Consequently, the answer to the questions referred is that the second sentence of Article 49(1) of Regulation No 601/2012 and point 10(B) of Annex IV to that regulation are invalid in so far as they systematically include the CO2 transferred to another installation for the production of PCC in the emissions of the lime combustion installation, regardless of whether or not that CO2 is released into the atmosphere.