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154 WASTE HEAT AND EUROPEAN CLEAN ENERGY POLICIES industry, which is subject to a particularly complex regulatory framework and therefore in many respects exemplary for the difficulties occurring in the regulation of innovative technologies. 1.2 Legal Background This paper will analyse the position and treatment of waste heat electricity in the European Union Emissions Trading System (EU-ETS). For that purpose, a great variety of legal documents will have to be taken into account. The trading scheme, which is informed by Article 17 Kyoto Protocol and the 5th EC Environmental Programme, is the largest emission trading scheme worldwide,1 comprising 27 EU-Member States plus the EEA-States Iceland, Liechtenstein and Norway. The central document governing the scheme is Directive 2003/87/EC (ETS-Directive),2 which has been amended by three further Directives and one Regulation;3 all were preceded by the normal legislative procedure and are subject to the EEA Agreement, which provides, inter alia, for the promotion of equal conditions of competition.4 For reasons further explained in section 3, the most important ETS-provision for the following analysis is Article 10a, which provides for the establishment of rules for the free allocation of emission allowances to encourage the implementation of efficient technologies; these rules have been set by the European Commission in Decision 2011/278/EU (Benchmarking Decision).5 The Decision was temporarily under challenge before the General Court of the European Union: The European steel industry association Eurofer argued, inter alia, that the Decision violates Article 10a ETS- Directive and infringes the principle of proportionality.6 The Court, however, rejected the request due to Eurofer’s lack of locus standi,7 which is in line with previous case law.8 * Dirk Böehler, Newcastle University, LLM Environment and Sustainable Development. 1 Josephine Van Zeben, 'Respective powers of the European Member State and Commission regarding emissions trading and allowance allocation' (2011) 12 ELR 216. 2 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 [2003] OJ L275/32. 3 Directive 2004/101/EC of the European Parliament and of the Council of 27 October 2004 [2004] OJ L338/18; Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 [2009] OJ L8/3; Regulation (EC) No 219/2009 of the European Parliament and of the Council of 11 March 2009 [2009] OJ L87/109; Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 [2009] OJ L140/63. 4 Agreement on the European Economic Area [1994] OJ L1/3, art 1(1). 5 Commission Decision 2011/278/EU 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 [2011] OJ L130/1. 6 Case T-381/11 Eurofer v Commission [2011] OJ C269/56. 7 Case T-381/11 Eurofer v Commission [2012] (GCEU, 6 June 2012). 8 Case C-263/02 P Commission v Jégo-Quéré [2004] (ECJ, 1 April 2004); Case 25-62 Plaumann v Commission [1963] (ECJ 15 July 1963); Case C-321/95 P Stitching Greenpeace v Commission [1998] (ECJ 2 April 1998), which, however, is not referred to in the decision.PDF Image | ELECTRICITY PRODUCTION FROM INDUSTRIAL WASTE HEAT
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