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180 WASTE HEAT AND EUROPEAN CLEAN ENERGY POLICIES that operators will actually produce data supporting such an unfavourable adjustment of the default value. The diagram below compares allocation levels for recovery of thermal and chemical energy content based on the default correction value to allocation levels without correction, i.e. based on maximum efficiency of the electricity production. 100% 90% 80% 70% 60% 0.25: 0.91 0.25: 0.88 20% 40% 0% 60% 80% 100% CO-Share (∼ Chemical Energy Content) in Total Off-Gas Recovery of Chemical Energy Recovery of Thermal Energy CO Recovery, No Correction Heat Recovery, No Correction Diagram no. 8: Effect of the Correction Value on Allocation Levels The result is particularly interesting in context with Article 10a(2) ETS-Directive, which provides that installations that ‘are among the most efficient installations in the EU will in principle receive all allowances they need.’137 The use of the correction factor, in contrast, penalises highly efficient energy recovery. 5.1.5 Compliance With Article 10a(2) ETS-Directive In this context, the European steel industry association Eurofer’s claims that Article 10a(2) ETS-Directive in fact ‘obliges the Commission to set benchmarks “at the average performance of 10% most efficient installations in a sector”’138. If this interpretation was upheld by the Court of Justice, the approach might be seen to constitute and infringement of the Directive. The language of the provision referred to, however, is vague and speaks of best performance to be the ‘starting point’ in defining benchmarks only; it does not contain a clear-cut obligation to design the fall-back methods in a way that, by all means, 137 DG-CLIMA, 'Benchmarks for free allocation' (European Commission, 12 April 2012)PDF Image | ELECTRICITY PRODUCTION FROM INDUSTRIAL WASTE HEAT
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