Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 16 April 2020 — ET, as insolvency administrator of Air Berlin PLC & Co. Luftverkehrs KG (AB KG) v Federal Republic of Germany
(Case C-165/20)
Language of the case: German
Referring court
Verwaltungsgericht Berlin
Parties to the main proceedings
Applicant: ET, as insolvency administrator of Air Berlin PLC & Co. Luftverkehrs KG (AB KG)
Defendant: Federal Republic of Germany
Questions referred
Having regard to recital 20 of Directive 2008/101, are Directive 2003/87/EC 1 and Directive 2008/101/EC 2 to be interpreted as precluding the annulment 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 Article 3f(1) of Directive 2003/87 to be interpreted as meaning that the annulment 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 Article 3f(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?
If Question 1 is answered in the affirmative:
Are the provisions in Article 10(5), Article 29, Article 55(1)(a) and (3) and Article 56 of Regulation (EU) No 389/2013 3 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?
If Question 1 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?
In the event that Question 1 is answered in the affirmative and in the event that Question 3 is answered in the negative:
Are Article 3c(3a), Article 28a(1) and (2) and Article 28b(2) of Directive 2003/87, as amended by Directive (EU) 2018/410, 4 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?
If Question 4 is answered in the negative:
Can entitlements to a further free allocation of emission allowances for aircraft operators 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?
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1 Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).
2 Directive 2008/101/EC of the European Parliament and of the Council of 19 November 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 L 8, p. 3).
3 Commission Regulation (EU) No 389/2013 of 2 May 2013 establishing a Union Registry pursuant to Directive 2003/87/EC of the European Parliament and of the Council, Decisions No 280/2004/EC and No 406/2009/EC of the European Parliament and of the Council and repealing Commission Regulations (EU) No 920/2010 and No 1193/2011 (OJ 2013 L 122, p. 1).
4 Directive (EU) 2018/410 of the European Parliament and of the Council of 14 March 2018 amending Directive 2003/87/EC to enhance cost-effective emission reductions and low-carbon investments, and Decision (EU) 2015/1814 (OJ 2018 L 76, p. 3).