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170 WASTE HEAT AND EUROPEAN CLEAN ENERGY POLICIES electricity. For that purpose, both allowance requirement and free allocation eligibility need to be reviewed specifically in the light of the additional power production. 4.2.1 Allowance Requirement Electricity production as such is not an activity listed in Annex I of the ETS-Directive. Therefore, producers only have to surrender allowances if they perform what is to be considered a case of – the listed – ‘combustion of fuels’90. According to Article 3(t) of the Directive, ‘“combustion” means any oxidation of fuels, regardless of the way in which the heat, electrical or mechanical energy produced by this process is used’. As discussed previously, the carbon used for the reduction of ore does not constitute fuel; therefore, electricity production from waste heat does not impose an additional obligation on the operator. This makes sense, as the electricity generation does not increase the amount of emissions from the respective installation; also, energy recovery would otherwise be penalised rather than rewarded. 4.2.2 Free Allocation 4.2.2.1 Electricity Production in General While electricity from industrial waste heat is not subject to an individual allowance surrender obligation, its production might influence the amount of free allowances allocated to the installation as a whole. This general assumption follows from the consideration that if two different products (i.e. alloys and electricity) are produced jointly, two different benchmarks for free allocation should apply cumulatively – after all, two separate installations would be allocated free allowances separately as well. This consideration is mirrored by Article 6 of the Benchmarking Decision, according to which each installation eligible for the free allocation of allowances should be divided into one or more sub-installations if different benchmarks are required. However, emissions stemming from electricity production are generally not eligible for free allocation. Directive 2009/29/EC, which amends the ETS-Directive in preparation for the third trading period, provides that ‘full auctioning should be the rule from 2013 onwards for the power sector, taking into account its ability to pass on the increased cost of CO2’.91 Consequently, the Benchmarking Decision does ‘not cover the free allocation of emission allowances related to the production or consumption of electricity.’92 4.2.2.2 Emissions Used for the Production of Waste Heat Electricity One exception is made to this rule. To provide incentives for energy efficient techniques, inter alia the efficient energy recovery of waste gases that cannot be 90 ETS-Directive (n 2), Annex I. 91 Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community [2009] OJ L140/63, rec 19. 92 Benchmarking Decision (n 5), rec 31.PDF Image | ELECTRICITY PRODUCTION FROM INDUSTRIAL WASTE HEAT
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