(Reference for a preliminary ruling– Scheme for greenhouse gas emission allowance trading– Directive 2003/87/EC– Article3e– Inclusion of aviation activities– Directive 2008/101

The first and third questions

41The first and third questions, which should be examined together, relate to how the scheme for allocating aviation allowances must be applied in the event of cessation, by the aircraft operator concerned, of its aviation activities.

42That scheme is contained in Articles3e and 3f of Directive 2003/87, which is part of Chapter II thereof, headed ‘Aviation’ and inserted into that directive by Directive 2008/101.

43Therefore, it must be considered that, by its first and third questions, the referring court is asking, in essence, whether Articles3e and 3f of Directive 2003/87 must be interpreted as meaning that the number of aviation allowances allocated to an aircraft operator must, in the event of cessation of that operator’s aviation activities during the trading period in question, be reduced in proportion to the part of that period during which those activities are no longer carried out.

44In that regard, it should be noted, first of all, that Article3e(1) to (3) of Directive 2003/87 allows every aircraft operator to request the allocation of aviation allowances; such a request must be made at least 21months before the start of a new trading period. It is for the Member States to submit, at least 18months before the start of that period, the requests received to the Commission, which is to adopt, at least 15months before the start of that period, a decision stating, inter alia, the number of aviation allowances available and the benchmark to be used for their allocation.

45Article3e(4) of that directive provides that, in the three months following the adoption of that decision, each Member State is to calculate and publish, first, the total of the aviation allowances allocated for the period in question to each aircraft operator concerned and, second, ‘the allocation of allowances to each aircraft operator for each year, which shall be determined by dividing its total allocation of allowances for the period [in question] by the number of years in the period for which that aircraft operator is performing an aviation activity listed in AnnexI’.

46It is thus apparent from Article3e(4) of Directive 2003/87 that the total quantity of aviation allowances allocated to an aircraft operator for a given trading period is calculated ex ante and that, on that occasion, the number of aviation allowances allocated per year is also set, by dividing that total quantity by the number of years in that period in respect of which that operator carries out the aviation activities listed in AnnexI to that directive, those activities alone being subject to the ETS.

47Next, Article3e(5) of that directive specifies that that number of aviation allowances per year is issued to the ‘aircraft operator’ concerned on 28February at the latest of each year of that period.

48It follows from those factors that the scheme for allocating aviation allowances presupposes that the recipient of that allocation carries out the aviation activities listed in AnnexI to Directive 2003/87 and that those quotas are issued in yearly instalments provided that the recipient, also at the moment that those allowances are actually issued, is an ‘aircraft operator’, that concept being defined in Article3(o) of that directive as referring to ‘the person who operates an aircraft at the time it performs an aviation activity listed in AnnexI’.

49Having regard to those detailed rules of the scheme for allocation of aviation allowances and, more specifically, to the link expressly made by the EU legislature between the allocation and issue of those allowances and the performance of aviation activities subject to the ETS, the performance of such activities throughout the trading period in question must be considered to constitute not a mere presumption on the basis of which the ex ante calculation of aviation allowances is made, but a substantive condition for the actual issue of the yearly instalments of those allowances until the end of that period.

50Therefore, where an aircraft operator ceases its activities during a trading period and thereby loses its aircraft operator status for the purposes of Directive 2003/87, consequently being deprived of the aviation allowances allocated for the years during which now turn out to be devoid of aviation activity, the insolvency administrator of that former aircraft operator cannot usefully rely on a breach of the principle of protection of legitimate expectations.

51In that connection, it should be borne in mind that that principle extends to any person in a situation in which an administrative authority has caused that person to entertain expectations which are justified by precise assurances provided to him or her (judgment of 15April 2021, Administration de l’Enregistrement, des Domaines et de la TVA, C‑846/19, EU:C:2021:277, paragraph90 and the case-law cited). As the Advocate General observed in point81 of his Opinion, there is no indication in the file before the Court that precise assurances relating to an issue of aviation allowances until the end of the trading period were given to Air Berlin at any point during that period or, once it became insolvent, to the applicant in the main proceedings. In particular, as has been set out in paragraphs48 and 49 of the present judgment, the allocation of aviation allowances for a trading period cannot be understood as guaranteeing, in all circumstances, the issue of those allowances until the end of that period.

52That finding is not invalidated by the fourth sentence of recital20 of Directive 2008/101.

53Admittedly, if read in isolation, that sentence, contained in the preamble to the act by which the EU legislature introduced aviation activities into the ETS and according to which ‘aircraft operators that cease operations should continue to be issued with allowances until the end of the period for which free allowances have already been allocated’, suggests that the EU legislature intended that the yearly instalments of the aviation allowances allocated for a trading period be issued until the end of that period, even where aviation activities have ceased.

54However, without there being any need for the Court to examine the circumstances that led to the inclusion of that sentence in the preamble to Directive 2008/101, it is clear that that preamble is contradicted by Article3e(4) and (5) of Directive 2003/87, the very wording of which highlights the indispensable link between the allocation and issue of the aviation allowances and the actual performance of the aviation activities listed in AnnexI to that directive.

55Consequently, in accordance with the case-law of the Court according to which the preamble to an EU act has no binding legal force and cannot be relied on either as a ground for derogating from the actual provisions of the act in question or for interpreting those provisions in a manner clearly contrary to their wording (see, inter alia, judgments of 19June 2014, Karen Millen Fashions, C‑345/13, EU:C:2014:2013, paragraph31, and of 25November 2020, Istituto nazionale della previdenza sociale (Family benefits for long-term residents), C‑303/19, EU:C:2020:958, paragraph26), it is appropriate to rule out the possibility, for an insolvency administrator of a former aircraft operator, of relying on the fourth sentence of recital20 of Directive 2008/101 in order to claim, for the benefit of the assets of the company in liquidation, the issue of aviation allowances for the years without aviation activity.

56It must be added that the issue, to the insolvency administrator of a former aircraft operator, of aviation allowances for the years during which no aviation activity listed in AnnexI to Directive 2003/87 is performed would be incompatible not only with the wording of Article3e of that directive, but also with the purpose and general scheme of the ETS.

57In that regard, it must be borne in mind that the ultimate objective of the ETS, as established by Directive 2003/87, is the protection of the environment and the economic logic underlying that scheme is that it encourages participants to emit quantities of greenhouse gases that are less than the greenhouse gas emission allowances originally allocated to it, in order to sell the surplus to another participant which has emitted more than its allowance (judgment of 3December 2020, Ingredion Germany, C‑320/19, EU:C:2020:983, paragraphs38 and 39 and the case-law cited). As a result of the amendments introduced by Directive 2008/101, the purpose and logic of the ETS were extended to the aviation sector (see, to that effect, judgment of 21December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraphs138 to 140).

58The overall scheme of Directive 2003/87 is thus based on the strict accounting of the issue, holding, transfer and cancellation of greenhouse gas emission allowances (judgment of 8March 2017, ArcelorMittal Rodange et Schifflange, C‑321/15, EU:C:2017:179, paragraph24 and the case-law cited). In that connection, that directive requires, in Article12(2a) thereof in particular, that each aircraft operator, each year, ‘[surrender] a number of allowances equal to the total emissions during the preceding calendar year from aviation activities listed in AnnexI for which it is the aircraft operator…’.

59As was observed by the Advocate General in point95 of his Opinion, the issue of aviation allowances to the insolvency administrator of a former aircraft operator for the years during which the latter no longer carried out aviation activities is irrelevant both to that purpose and to the general scheme of the ETS and would merely create an unforeseen advantage for the creditors of that former aircraft operator.

60Last, in so far as the referring court’s uncertainty pertains also to Article3f of Directive 2003/87, it must be noted that that article provides, in paragraph1 thereof, for the setting up of a special reserve for the allocation of aviation allowances in respect of new or additional aviation activities, provided that those activities are not the continuation of an aviation activity performed previously by another aircraft operator.

61It is thus apparent that that provision covers not the situation in which an aircraft operator ceases its activities, but that in which such an operator carries out new or additional aviation activities. The special reserve provided for by that provision therefore cannot concern either Air Berlin or the applicant in the main proceedings.

62In addition, assuming that Air Berlin’s aviation activities have been continued by other operators, it follows from the very wording of that Article3f(1) that such new or additional activities carried out by those operators in continuation of aviation activities previously carried out by Air Berlin would fall outside the scope of that provision.

63It follows that Article3f of Directive 2003/87 is irrelevant to the answer to the first and third questions.

64Regarding whether the operators that have, where applicable, continued Air Berlin’s aviation activities could, irrespective of Article3f of that directive, assert a right to the transfer, to their aircraft operator holding accounts, of the allowances originally allocated to Air Berlin before being withdrawn on account of the cessation of its aviation activities, it must be noted that there is nothing in the order for reference or in the observations lodged before the Court to indicate that such a right is being asserted in the main proceedings. The question of such a transfer cannot, as a result, be examined in the present reference for a preliminary ruling.

65Having regard to all the foregoing considerations, the answer to the first and third questions is that Article3e of Directive 2003/87 must be interpreted as meaning that the number of aviation allowances allocated to an aircraft operator must, in the event of cessation of that operator’s aviation activities during the trading period in question, be reduced in proportion to the part of that period during which those activities are no longer carried out.

The second, fourth and fifth questions

66In the light of the answer given to the first and third questions, there is no need to examine the second, fourth and fifth questions.