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

22By decision of 12December 2011, the Deutsche Emissionshandelsstelle (German Emissions Trading Authority; ‘the DEHSt’) allocated, under Article11 of the TEHG, a total of 28759739 free greenhouse gas emission allowances (‘aviation allowances’) to Air Berlin. 3360363 aviation allowances were allocated for 2012 and 3174922 aviation allowances were allocated per year for the period from 1January 2013 to 31December 2020.

23By decision of 15January 2015, the DEHSt withdrew 9980071 aviation allowances, due to the introduction, by an EU act of a temporary suspension, for the years 2013 to 2016, of the emissions trading obligation for certain international flights. That withdrawal became final and the number of aviation allowances allocated to Air Berlin for the years 2012 to 2020 was thus reduced to 18779668 units.

24On 15August 2017, Air Berlin filed a request for insolvency proceedings to be opened against it. On the same day, the Amtsgericht Charlottenburg (Local Court, Charlottenburg, Germany) opened preliminary insolvency proceedings with no declining of jurisdiction and appointed the applicant in the main proceedings as temporary administrator of the assets.

25On 28October 2017, Air Berlin officially ceased its aviation activities.

26By order of 1November 2017, the Amtsgericht Charlottenburg (Local Court, Charlottenburg) opened the main insolvency proceedings and appointed the applicant in the main proceedings as administrator of the assets. Next, by decision of 16January 2018, that court terminated the insolvency proceedings with no declining of jurisdiction at Air Berlin’s request and appointed the applicant in the main proceedings as insolvency administrator.

27By decision of 28February 2018 addressed to the applicant in the main proceedings, the DEHSt carried out another partial withdrawal of aviation allowances, adjusting the number of those allowances allocated to Air Berlin for all the years from 2013 to 2020 to 12159960 units.

28The DEHSt based that decision on the extension to the years 2017 to 2020 of the suspension of the emissions trading obligation for certain international flights and on the fact that, before the end of 2017, Air Berlin had ceased its aviation activities. In the light of the latter factor, the DEHSt stated that there was no need to issue aviation allowances for the years 2018 to 2020. For that same reason, it decided to set Air Berlin’s aircraft operator holding account to ‘excluded’ status within the meaning of Article10(5) of Regulation No389/2013.

29The applicant in the main proceedings filed an opposition against that decision in so far as it was based on the cessation of Air Berlin’s activities. He relied, in particular, on the principle of protection of legitimate expectations and on the fourth sentence of recital20 of Directive 2008/101.

30By decision of 19June 2018, the DEHSt rejected that opposition. According to the DEHSt, the applicant could not usefully rely on the principle of protection of legitimate expectations since it is apparent from Article10(5) of Regulation No389/2013 that aviation allowances may no longer be issued where the aircraft operator in question no longer carries out flights subject to greenhouse gas emissions trading schemes. The fourth sentence of recital20 of Directive 2008/101 did not have to be taken into consideration, the content of that sentence not being reflected in substantive provisions of EU legislation.

31On 23July 2018, the applicant in the main proceedings applied for legal aid in order to bring an action. By order of 16December 2019, the Oberverwaltungsgericht Berlin-Brandenburg (Higher Administrative Court, Berlin-Brandenburg, Germany) granted that aid, taking the view that it could be inferred from Directive 2008/101 that the cessation of aviation activities does not justify the withdrawal of aviation allowances.

32On 2January 2020, the applicant in the main proceedings brought an action against the decision of 28February 2018 before the Verwaltungsgericht Berlin (Administrative Court, Berlin, Germany). He observes that the TEHG did not provide for the possibility of withdrawing aviation allowances in the event of cessation of aviation activities. It is starkly apparent from the fourth sentence of recital20 of Directive 2008/101 that the EU legislature intended that allocated aviation allowances would still be issued in such a case.

33The applicant in the main proceedings states that, a few months before ceasing its aviation activities, Air Berlin sold the majority of the aviation allowances that had been allocated to it for 2017. It did so with the legitimate expectation that the aviation allowances allocated for the years 2018 to 2020 would continue to be issued to it and that it would therefore be in a position to fulfil, as regards 2018, its obligations relating to the surrender of allowances for emissions resulting from the flights it performed in 2017.

34According to the applicant in the main proceedings, the right of an aircraft operator to maintain the aviation allowances that have been allocated to it is not subject to any specific condition nor does it depend on whether, after the cessation of that operator’s activities, they are performed, within the meaning of Article3f(1), by other operators. The applicant in the main proceedings nevertheless observes that, following the cessation of Air Berlin’s activities, its slots were sold to other airlines.

35According to the defendant in the main proceedings, the initial allocation decision was based on the assumption that Air Berlin would carry out, throughout the greenhouse gas emission allowance trading period (‘the trading period’) in question, aviation activities subject to the greenhouse gas emissions trading system obligation. Since the cessation of its activities, however, Air Berlin is no longer subject to the greenhouse gas emission allowance trading scheme (‘ETS’) provided for by Directive 2003/87, with the result that, in accordance with Article10(5) of Regulation No389/2013, its aircraft operator holding account was excluded from that system. Furthermore, with the expiry of its operating licence on 1February 2018, Air Berlin no longer even had the status of aircraft operator within the meaning of Article2(6) TEHG.

36Regarding the fourth sentence of recital20 of Directive 2008/101, the defendant in the main proceedings maintains that that sentence is inconsistent with the ETS and, consequently, cannot be taken into account. Moreover, it considers that the applicant in the main proceedings cannot rely on any legitimate expectation of Air Berlin, as that company could not reasonably assume that it would continue to receive aviation allowances after it ceased its activities.

37The referring court states that the lawfulness of the withdrawal of the aviation allowances for the years 2018 to 2020 depends largely on the legal effects of Air Berlin’s cessation of its aviation activities. In that regard, it is uncertain, inter alia, as to the scope of the fourth sentence of recital20 of Directive 2008/101. Failing a substantive provision supporting that sentence, the issue of whether aviation allowances must be maintained or withdrawn in the event of cessation of activities should be clarified by the Court.

38It is also appropriate to interpret the concept of ‘performance’, by other operators, of aviation activities, within the meaning of Article3f(1) of Directive 2003/87, and specify whether the maintenance of aviation allowances is contingent on such performance.

39Should the Court rule that EU law precludes the withdrawal of aviation allowances in the event of cessation of aviation activities, it would still be necessary, first, to examine the validity of Articles10, 29, 55 and 56 of Regulation No389/2013, in so far as those articles provide, in the event of cessation of those activities, for the exclusion or closure of the aircraft operator holding account and, second, to determine whether the trading period in question ended, for aircraft operators, on 31December 2020 or will end, having regard to Articles28a and 28b of Directive 2003/87, only on 31December 2023. In that latter regard, should the Court find that that period ended on 31December 2020, it must still be specified whether aviation allowances relating to that period may still be issued after 31December 2020, pursuant to a judicial decision delivered after that date.

40In those circumstances, the Verwaltungsgericht Berlin (Administrative Court, Berlin) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)Having regard to recital20 of Directive [2008/101], are [Directives 2003/87 and 2008/101] to be interpreted as precluding the withdrawal of the free allocation of aviation allowances to an aircraft operator for the years 2018 to 2020 if the allocation for the years 2013 to 2020 has been made and the aircraft operator ceased its aviation activities in 2017 due to insolvency?

Is Article3f(1) of Directive [2003/87] to be interpreted as meaning that the withdrawal of the allocation decision after aviation activities have been ceased due to insolvency is dependent on whether there has been a continuation of the aviation activities by other air transport operators? Is Article3f(1) of Directive [2003/87] to be interpreted as meaning that there has been a continuation of aviation activities if landing rights at so-called coordinated airports (slots) have been sold in part (for the insolvent air carrier’s short- and medium-haul operations) to three other air transport operators?

(2)If Question1 is answered in the affirmative:

Are the provisions in Article10(5), Article29, Article55(1)(a) and (3) and Article56 of Regulation [No389/2013] compatible with [Directives 2003/87 and 2008/101] and valid if they preclude, in the event that the air transport operator has ceased flight operations due to insolvency, the issuing of free aviation allowances that have been allocated but not yet issued?

(3)If Question1 is answered in the negative:

Are Directives [2003/87] and [2008/101] to be interpreted as meaning that an annulment of the decision on the free allocation of aviation allowances is mandatory under EU law?

(4)In the event that Question1 is answered in the affirmative and in the event that Question3 is answered in the negative:

Are Article3c(3a), Article28a(1) and (2) and Article28b(2) of Directive [2003/87]… to be interpreted as meaning that, for aircraft operators, the third trading period does not end at the end of 2020, but rather continues until 2023?

(5)If Question4 is answered in the negative:

Can entitlements to a further free allocation of [aviation] allowances for aircraft operators for the third trading period be met after the end of the third trading period with [aviation] 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?’