Directive of the European Parliament and of the Council of
Commission Decision of
I note that the expression
In relation to greenhouse gas emissions allowances, I have previously delivered Opinions in the following cases:
… any installation carrying out one or more of the activities listed in Annex I, which has obtained a greenhouse gas emissions permit for the first time after any installation carrying out an activity which is included in the Community scheme pursuant to Article 24(1) or (2) for the first time, or any installation carrying out one or more of the activities indicated in Annex I or an activity which is included in the Community scheme pursuant to Article 24(1) or (2), which has had a significant extension after …
For installations referred to in Article 3(h) of Directive [2003/87], with the exception of installations that have had a significant extension after … …
For the purposes of the allocation of emission allowances to new entrants, with the exception of allocations to installations referred to in the third indent of Article 3(h) of Directive [2003/87], Member States shall calculate the preliminary annual number of emission allowances allocated free of charge as of the start of normal operation of the installation for each sub-installation separately, as follows: … …
In respect of the allocation elements of new installations to be determined under Paragraph 3, the activity levels relevant to the allocation of allowances shall be determined as follows: … … The relevant capacity utilisation factor pursuant to subparagraph 1, points 2 to 4, shall be determined on the basis of the applicant’s indications regarding: … I note that, in Decision 2011/278, the term used is
In respect of the allocation of allowances for new installations, the competent authority shall calculate the preliminary annual number of allowances to be allocated free of charge as of the start of regular operation of the installation for the remaining years of the trading period from 2013 to 2020 as follows and separately for each allocation element: … …
Starch products include all agro-alimentary products containing starch.
As I observed in my Opinion in
As regards initial installed capacity, I note that Article 17(4) of Decision 2011/278 essentially provides that, for installations referred to in Article 3(h) of Directive 2003/87 (or, in other words, new entrants), with the exception of installations that have had a significant extension after
Decision C(2015) 1733 final of
Those documents, entitled
Under Article 3(a) of Decision 2011/278, the term
Under Article 9(1) of Decision 2011/278,
The standard capacity utilisation factors are fixed in accordance with the Annex to Commission Decision 2013/447/EU of
Article 10(1) of Directive 2003/87, which is headed
At the hearing before the Court, Ingredion made clear that its position was not that the maximum capacity of the sub-installation had to be taken as the reference value, but that the relevant capacity utilisation factor had to reflect the actual use of the capacity of that sub-installation.
For the sake of completeness, I would add that, in its written observations, the Federal Republic of Germany submitted that the positions of Ingredion and of the Commission were both compatible with Directive 2003/87 and with Decision 2011/278. It emphasised, however, that the Member States were entitled to rely on final decisions of the Commission concerning the preliminary allocation of free allowances to other installations within their territory, and that it was open to the DEHSt, in the light of Commission Decision C(2015) 1733 final of
I note that, in its written observations, the Federal Republic of Germany also emphasised that the main argument against a limitation of the relevant capacity utilisation factor is that the initial installed capacity, determined in accordance with Article 17(4) of Decision 2011/278, was not always representative of the capacity of the installation, because of the short 90-day period.
Paragraph 17(2.1) of the ZuV 2020 provides that, for sub-installations set up on German territory, the relevant capacity utilisation factor is to be determined on the basis of information concerning, inter alia, the actual operation of the sub-installation
As to the relevance of these different benchmarks and the relationship between them, I refer to footnote 8 to this Opinion.
I also note that, under the first subparagraph of Article 18(2) of Decision 2011/278, the standard capacity utilisation factor, which applies to product benchmark sub-installations, is the ’80‑percentile of the average annual capacity utilisation factors of all installations producing the product concerned’.
More precisely, the values range from 0.731 to 0.964.
I would point out that, according to recital 36 of Decision 2011/278, Considering the limited number of allowances in the reserve for new entrants, it is appropriate to assess, when a considerable amount of these allowances is issued to new entrants, whether a
See, to that effect, judgment of
In particular, given that, in accordance with Decision 2013/447, the standard capacity utilisation factor is below 1 in all cases, it seems to me that the relevant capacity utilisation factor must also remain strictly below 100%.
As regards the definition of
As regards installations which have had a significant capacity extension, I note that these are included in the definition of
The different types of production in question are listed in Article 9(4) of Decision 2011/278.
As I stated in footnote 9 to this Opinion, this period (of two to four years) is defined in Article 9(1) of Decision 2011/278.
In that regard, I note that under Article 17 of Commission Delegated Regulation (EU) 2019/331 of
I note that, under Article 7(1) of Decision 2011/278, for each incumbent installation, Member States are to collect from the operator
I observe that, in adopting Decision 2011/278, the Commission was acting pursuant to its implementing powers under Article 10a of Directive 2003/87. In that regard, I note that under Article 291(3) TFEU, where the Commission adopts implementing measures, the Parliament and the Council are to lay down in advance the rules and general principles concerning mechanisms for control by Member States of its exercise of implementing powers. Furthermore, the Parliament may oppose such measures and, if it does so, the Commission is obliged to take its position into account, even if it is not obliged to accept it.
In that regard, I note that according to settled case-law, the general principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, judgment of
Articles 20(1) and 21(1) of Decision 2011/278 provide, essentially, that where an installation has had a significant capacity extension or reduction after
This definition of
Admittedly, the mechanism laid down in Article 20 of Decision 2011/278 does not allow for the preliminary number of free allowances allocated to a sub-installation, on the basis of the initial application, to be corrected after the event. It is therefore true that, in the case of a new entrant, it is not possible to compensate, at a later stage, for any underestimation of the relevant capacity at the time of the initial allocation. Nonetheless, the Commission stated at the hearing that new entrants could come within Article 20 from the year following that initial allocation, provided that they have had a significant capacity extension.
See Article 3(l) of Decision 2011/278. I note that, in the main proceedings, Ingredion bases its submissions on the actual utilisation of its sub-installation during the period from
Ingredion submits that the relevant capacity utilisation factor should, in such a case, be fixed at a value of 109%.
I observe in this regard that, in accordance with Article 19(4) of Decision 2011/278, emission allowances from the new entrants reserve are to be allocated on a
See, to the same effect,
See judgment of
See recital 15 of Directive 2009/29/EC of the European Parliament and of the Council of
See judgments of
See judgment of
In that regard, I note that under the first sentence of the first subparagraph of Article 10a(7) of Directive 2003/87, only 5% of the quantity of allowances allocated in respect of the period 2013 — 2020 is to be set aside for new entrants, and that this percentage is a maximum.
In this regard, I observe that, in my Opinion in
See judgment of
As I have stated in point 19 of this Opinion, in the main proceedings in this case, the DEHSt decided to apply a relevant capacity utilisation factor of 99.9%, on the basis that, in its decision of
Article 18(1)(c) and the second subparagraph of Article 18(2) of Commission Decision 2011/278/EU of