Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 2 May 2017 — Evonik Degussa GmbH v Bundesrepublik Deutschland
(Case C-229/17)
Language of the case: German
Referring court
Verwaltungsgericht Berlin
Parties to the main proceedings
Applicant: Evonik Degussa GmbH
Defendant: Bundesrepublik Deutschland
Questions referred
(1) Is there a ‘production of hydrogen’ within the meaning of Annex I, Part 2, to Decision 2011/278/EU 1 only in the case where an H2 hydrogen molecule is produced by chemical synthesis from two H hydrogen atoms, or does the concept of production also include the process whereby, in the case of a hydrogenous gas mixture, the relative share of H2 hydrogen in that mixture is increased — without synthesis — by removal of the other gas components — whether by physical or chemical means — in order to obtain a ‘product ... expressed as saleable (net) production and to 100% purity of the substance concerned’ within the meaning of Annex I, Part 2, to Decision 2011/278/EU?
(2) If the answer to Question 1 is that the concept of production does not include the process of increasing the relative share of H2 hydrogen in a gas mixture, the following further question must be asked:
Must the wording ‘relevant process elements directly or indirectly linked to the production of hydrogen and the separation of hydrogen and carbon monoxide’ be interpreted as meaning that only both elements together (‘and’) are covered by the system boundaries of the product benchmark for hydrogen described in Annex I, Part 2, to Commission Decision 2011/278/EU of 27 April 2011, or can the process element ‘separation of hydrogen and carbon monoxide’ also operate in isolation within the system boundaries as an independent process element in its own right?
(3) If the answer to Question 2 is that the process element ‘separation of hydrogen and carbon monoxide’ can also operate in isolation within the system boundaries as an independent process element in its own right, the following further question must be asked:
Is the process element ‘separation of hydrogen and carbon monoxide’ present only where H2 hydrogen is separated exclusively from CO carbon monoxide, or is the process element ‘separation of hydrogen and carbon monoxide’ also present where that process involves the separation of hydrogen not only from carbon monoxide but also from other substances, such as CO2 carbon dioxide or CnHn?
(4) In the event that the applicant is to be recognised by judicial decision as being entitled to an additional allocation of free emission allowances, must paragraph 3 of the operative part of the judgment of the European Court of Justice of 28 April 2014 in Case C-191/14 be interpreted as meaning that:
(a) the cross-sectoral correction factor provided for in Article 4 of, and Annex II to, Decision 2013/448/EU, in its original version, is applicable to allocations for the years 2013 to 2020 that were established by the competent authority of the Member State before 1 March 2017; and
(b) the cross-sectoral correction factor provided for in Article 4 of, and Annex II to, Decision 2013/448/EU, in its original version, is applicable to additional allocations for the years 2013 to 2017 that were/are awarded by judicial decision after 1 March 2017; and
(c) the cross-sectoral correction factor provided for in Article 4 of, and Annex II to, Decision 2013/448/EU, in the version of Decision 2017/126/EU, applicable after 1 March 2017, is applicable to additional allocations for the years 2018 to 2020 that were/are awarded by judicial decision after 1 March 2017?
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1 . 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 (notified under document C(2011) 2772) (OJ 2011 L 130, p. 1).