INEOS operates an installation that produces chemical products and that has been subject to compulsory emissions trading since 2018 through the EU Emissions Trading System (EU ETS).
On 23 January 2012, INEOS applied to the German Emissions Trading Authority, within the prescribed time limit, for free allocation of emission allowances for their installation for the period 2013-2020. Later, INEOS challenged the German Authority’s decision about how many free emissions allocations to award the company, claiming that it had not considered data relating to direct emissions for 2006 and 2007, which it was required to do. The German Authority claimed it was not required to consider that data, because it had been submitted after the deadline for the initial application.
On 29 September 2015, INEOS brought an action against that decision before the Berlin Administrative Court. The company argued that it had inadvertently omitted to submit certain data, wrongly assuming that the Authority already had that data. Ineos added that the Authority was under an obligation to ask it to supplement or correct the data provided for the purposes of the allocation application. The Administrative Court of Berlin referred to the ECJ a question regarding the interpretation of Article 10(a) of Directive 2003/87/CE and the provisions of Decision 2011/278: must it be interpreted as precluding national legislation which lays down, for the submission of an application for the free allocation of emission allowances for the period 2013-2020, a deadline by which an applicant must correct or complete its application?
The ECJ ruled that the two directives must not be interpreted as precluding such a national provision and that Germany could impose such a deadline.