29.6.2020

Official Journal of the European Union

C 215/20

(Case C-126/20)

(2020/C 215/25)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: ExxonMobil Production Deutschland GmbH

Defendant: Bundesrepublik Deutschland, represented by the Umweltbundesamt

Questions referred

1.Does the CO₂ released into the atmosphere as part of the processing of natural gas (in the form of sour gas) in the ‘Claus process’, by means of the CO₂ inherent in natural gas being separated from the gas mixture, constitute an emission which, for the purposes of the first sentence of Article 3(h) of Commission Decision 2011/278/EU, (1) occurs as a result of the process referred to in Article 3(h)(v)?

2.For the purposes of the first sentence of Article 3(h) of Commission Decision 2011/278/EU, can CO₂ emissions occur ‘as a result of’ a process in which the CO₂ inherent in the raw material is released into the atmosphere, even though the process taking place does not give rise to additional CO₂, or does that provision make it mandatory for the CO₂ released into the atmosphere to occur for the first time as a result of that process?

3.Is a carbon-containing raw material ‘used’ within the meaning of Article 3(h)(v) of Commission Decision 2011/278/EU where, in the ‘Claus process’, the naturally occurring natural gas is used to produce sulphur and, in the course of that procedure, the CO₂ inherent in the natural gas is released into the atmosphere, even though the CO₂ inherent in the natural gas does not play a part in the chemical reaction taking place in that process, or does the term ‘use’ make it mandatory for the carbon to play a part in, or indeed be essential to, the chemical reaction taking place?

4.If Questions 1 to 3 are answered in the affirmative: On the basis of which benchmark is the allocation of free emission allowances to be carried out where an installation subject to the emission trading scheme satisfies both the defining conditions of a heat benchmark sub-installation and the defining conditions of a process emissions sub-installation? Does entitlement to an allocation on the basis of the heat benchmark take priority over entitlement to an allocation for process emissions or does entitlement to an allocation for process emissions take precedence over the heat benchmark and the fuel benchmark because it is more specific to the case in question?

5.If Questions 1 to 4 are answered in the affirmative: Can entitlements to a further free allocation of emission allowances for the third trading period be met after the end of the third trading period with allowances of the fourth trading period where the existence of the allowance entitlement is established by a court only after expiry of the third trading period, or do allowance entitlements that have not yet been met lapse on expiry of the third trading period?

* Commission Decision of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2011 L 130, p. 1).