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

Directive 2003/87

3Article1 of Directive 2003/87, entitled ‘Subject matter’, provides, in the first paragraph thereof:

‘This Directive establishes a scheme for greenhouse gas emission allowance trading… in order to promote reductions of greenhouse gas emissions in a cost-effective and economically efficient manner.’

4Article2 of that directive, entitled ‘Scope’, provides, in paragraph1 thereof:

‘This Directive shall apply to emissions from the activities listed in AnnexI and greenhouse gases listed in AnnexII.’

5Article3 of that directive, entitled ‘Definitions’, states:

‘For the purposes of this Directive the following definitions shall apply:

…

(o)“aircraft operator” means the person who operates an aircraft at the time it performs an aviation activity listed in AnnexI or, where that person is not known or is not identified by the owner of the aircraft, the owner of the aircraft;

…’

6Article3c of the same directive, entitled ‘Total quantity of allowances for aviation’, provides:

‘1.For the period from 1January 2012 to 31December 2012, the total quantity of allowances to be allocated to aircraft operators shall be equivalent to 97% of the historical aviation emissions.

2.For the period… beginning on 1January 2013… the total quantity of allowances to be allocated to aircraft operators shall be equivalent to 95% of the historical aviation emissions multiplied by the number of years in the period.

…

3a.Any allocation of allowances for aviation activities to and from aerodromes located in countries outside the European Economic Area (“EEA”) after 31December 2023 shall be subject to the review referred to in Article28b.

…’

7Article3d of Directive 2003/87, entitled ‘Method of allocation of allowances for aviation through auctioning’, provides:

‘1.In the period referred to in Article3c(1), 15% of allowances shall be auctioned.

2.From 1January 2013, 15% of allowances shall be auctioned.…

…’

8Under Article3e of that directive, headed ‘Allocation and issue of allowances to aircraft operators’:

‘1.For each period referred to in Article3c, each aircraft operator may apply for an allocation of allowances that are to be allocated free of charge. An application may be made by submitting to the competent authority in the administering Member State verified tonne-kilometre data for the aviation activities listed in AnnexI performed by that aircraft operator for the monitoring year.… Any application shall be made at least 21months before the start of the period to which it relates…

2.At least 18months before the start of the period to which the application relates…, Member States shall submit applications received under paragraph1 to the Commission.

3.At least 15months before the start of each period referred to in Article3c(2)…, the Commission shall calculate and adopt a decision setting out:

(a)the total quantity of allowances to be allocated for that period in accordance with Article3c;

(b)the number of allowances to be auctioned in that period in accordance with Article3d;

(c)the number of allowances in the special reserve for aircraft operators in that period in accordance with Article3f(1);

(d)the number of allowances to be allocated free of charge in that period by subtracting the number of allowances referred to in points (b) and (c) from the total quantity of allowances decided upon under point (a); and

(e)the benchmark to be used to allocate allowances free of charge to aircraft operators whose applications were submitted to the Commission in accordance with paragraph2.

…

4.Within three months from the date on which the Commission adopts a decision under paragraph3, each administering Member State shall calculate and publish:

(a)the total allocation of allowances for the period to each aircraft operator whose application it submitted to the Commission in accordance with paragraph2, calculated by multiplying the tonne-kilometre data included in the application by the benchmark referred to in paragraph3(e); and

(b)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 calculated under point (a) by the number of years in the period for which that aircraft operator is performing an aviation activity listed in AnnexI.

5.By 28February 2012 and by 28February of each subsequent year, the competent authority of the administering Member State shall issue to each aircraft operator the number of allowances allocated to that aircraft operator for that year under this Article or Article3f.’

9Article3f of the directive, entitled ‘Special reserve for certain aircraft operators’, provides:

‘1.In each period referred to in Article3c(2), 3% of the total quantity of allowances to be allocated shall be set aside in a special reserve for aircraft operators:

(a)who start performing an aviation activity falling within AnnexI after the monitoring year for which tonne-kilometre data was submitted under Article3e(1) in respect of a period referred to in Article3c(2); or

(b)whose tonne-kilometre data increases by an average of more than 18% annually between the monitoring year for which tonne-kilometre data was submitted under Article3e(1) in respect of a period referred to in Article3c(2) and the second calendar year of that period;

and whose activity under point (a), or additional activity under point (b), is not in whole or in part a continuation of an aviation activity previously performed by another aircraft operator.

2.An aircraft operator who is eligible under paragraph1 may apply for a free allocation of allowances from the special reserve by making an application to the competent authority of its administering Member State. Any application shall be made by 30June in the third year of the period referred to in Article3c(2) to which it relates.

…’

10Article12 of the same directive, headed ‘Transfer, surrender and cancellation of allowances’, provides, in paragraph2a thereof:

‘Administering Member States shall ensure that, by 30April each year, each aircraft operator surrenders 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… . Member States shall ensure that allowances surrendered in accordance with this paragraph are subsequently cancelled.’

11Article28a of Directive 2003/87, entitled ‘Derogations applicable in advance of the implementation of the [International Civil Aviation Organization (ICAO)]’s global market-based measure’, provides:

‘1.By way of derogation from [Article12(2a)], Member States shall consider the requirements set out in those provisions to be satisfied and shall take no action against aircraft operators in respect of:

(a)all emissions from flights to and from aerodromes located in countries outside the EEA in each calendar year from 1January 2013 to 31December 2023, subject to the review referred to in Article28b;

(b)all emissions from flights between an aerodrome located in an outermost region within the meaning of Article349 [TFEU] and an aerodrome located in another region of the EEA in each calendar year from 1January 2013 to 31December 2023, subject to the review referred to in Article28b.

…

2.By way of derogation from Articles3e and 3f, aircraft operators benefiting from the derogations provided for in points (a) and (b) of paragraph1 of this Article shall be issued, each year, with a number of free allowances reduced in proportion to the reduction of the surrender obligation provided for in those points.

…

As regards activity in the period from 1January 2017 to 31December 2023, Member States shall, before 1September 2018, publish the number of aviation allowances allocated to each aircraft operator.

…’

12Article28b of the directive, entitled ‘Reporting and review by the Commission concerning the implementation of the ICAO’s global market-based measure’, provides:

‘1.Before 1January 2019 and regularly thereafter, the Commission shall report to the European Parliament and to the Council on progress in the ICAO negotiations to implement the global market-based measure to be applied to emissions from 2021…

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2.Within 12months of the adoption by the ICAO of the relevant instruments, and before the global market-based measure becomes operational, the Commission shall present a report to the European Parliament and to the Council in which it shall consider ways for those instruments to be implemented in Union law through a revision of this Directive.…

…’

13AnnexI to that directive, headed ‘Categories of activities to which this directive applies’, contains an ‘Aviation’ section, which covers, subject to certain exceptions, ‘flights which depart from or arrive in an aerodrome situated in the territory of a Member State to which the Treaty applies’.

Directive 2008/101/EC

14Recital20 of Directive 2008/101/EC of the European Parliament and of the Council of 19November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community (OJ 2009 L8, p.3) states:

‘In order to avoid distortions of competition, a harmonised allocation methodology should be specified for determining the total quantity of allowances to be issued and for distributing allowances to aircraft operators. A proportion of allowances will be allocated by auction in accordance with rules to be developed by the Commission. A special reserve of allowances should be set aside to ensure access to the market for new aircraft operators and to assist aircraft operators which increase sharply the number of tonne-kilometres that they perform. 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.’

Regulation No389/2013

15Article10 of Regulation No389/2013, titled ‘Account status’, provides:

‘1.Accounts shall be in one of the following status: open, blocked, excluded or closed.

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5.Upon notification from the competent authority that an aircraft operator’s flights are no longer included in the Union scheme in accordance with AnnexI to Directive [2003/87] in a given year, the national administrator shall set the corresponding aircraft operator holding account to excluded status, after giving prior notice to the aircraft operator concerned and until notification from the competent authority that an aircraft operator’s flights are again included in the Union scheme.

…’

16Article29 of that regulation, entitled ‘Closure of aircraft operator holding accounts’, provides:

‘Aircraft operator holding accounts shall only be closed by the national administrator if instructed by the competent authority to do so because the competent authority has discovered that the aircraft operator merged into another aircraft operator or the aircraft operator has ceased all its operations covered by AnnexI [to] Directive [2003/87], either through a notification by the account holder or through other evidence.’

17Article55 of that regulation, entitled ‘Changes to the national aviation allocation tables’, provides:

‘1.The national administrator shall carry out changes to the national aviation allocation table… where:

(a)an aircraft operator [has] ceased all its operations covered by AnnexI [to] Directive [2003/87];

…

3.The Commission shall instruct the central administrator to make the corresponding changes to the national aviation allocation table… if it considers that the change to the national aviation allocation table is in accordance with Directive [2003/87]…

…’

18Article56 of the same regulation, entitled ‘Free allocation of aviation allowances’, provides:

‘1.The national administrator shall indicate for each aircraft operator and for each year whether or not the aircraft operator should receive an allocation for that year in the national aviation allocation table.

2.From 1February 2013 the central administrator shall ensure that the Union Registry transfers aviation allowances automatically from the EU Aviation Allocation Account to the relevant open or blocked aircraft operator holding account in accordance with the relevant allocation table…

…’

German law

19Paragraph2, entitled ‘Scope’, of the Treibhausgas-Emissionshandelsgesetz (Law on greenhouse gas emissions trading) of 21July 2011 (BGBl. 2011I, p.1475), in the version applicable to the main proceedings (‘the TEHG’), provides, in subparagraph6 thereof:

‘With respect to aviation activities, the scope of this Law extends to all emissions from an aircraft that result from fuel consumption.… This Law applies only to aviation activities conducted:

1.by aircraft operators which hold a German operating licence…; or

2.by aircraft operators which have been allocated Germany as the administering Member State… and which do not hold a valid operating licence issued by another [EEA State].

…’

20Paragraph9 of the TEHG, entitled ‘Allocation of emission allowances free of charge to operators of installations’, provides, in subparagraph6 thereof:

‘The allocation decision shall be withdrawn if, as a result of a legal act of the European Union, it has to be amended retrospectively.…’

21Paragraph11 of the TEHG, entitled ‘General allocation of allowances to aircraft operators free of charge’, provides:

‘(1)The aircraft operator shall be allocated a number of aviation allowances free of charge for a trading period which corresponds to the product of the transport performance in the base year… and the benchmark which is calculated in accordance with… Directive 2003/87.

…

(6)The competent authority shall allocate allowances free of charge within three months of the date of publication by the [Commission] of the benchmark pursuant to Article3e(3) of Directive 2003/87.…’