5. when an ETS consumer falls out of the scope of ETS, the heat producer could have a significant increase in capacity during or after the baseline period only as a result of a physical change, if any (see section 6.4 of Guidance Document 2 for capacity changes before 30 June 2011 (http://ec.europa.eu/clima/documentation/
According to the annotation on the said Q&A document, it has been developed building on the frequently asked questions to the Helpdesk for the Member States Competent Authorities which is driven by a consortium of the European Commission’s consultants, does not represent an official position of the Commission and is not legally binding. It is thus really disappointing that documents representing such important provisions heavily influencing the legal position of economic entities are made in this way.
It is a common opinion that the Directive 2003/87/EC have become now only a general master legal framework but the concrete provisions shaping the entrepreneurs’ rights and obligations in that regard are delegated to much lower ranking provisions. There is a lesser problem, when these provisions are the European Commission’s regulations and decisions, but currently with respect to the climate change law we face the complete flood of guidelines prepared for the European Commission by external consultants. These guidelines dealing with concrete cases sometimes go far beyond the original legal provisions.