# C_2023015EN.01002501.xml

| 16.1.2023 | EN | Official Journal of the European Union | C 15/25 |
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16.1.2023

EN

Official Journal of the European Union

C 15/25

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Request for a preliminary ruling from the Conseil d’État (France) lodged on 30 September 2022 — Société BP France v Ministre de l’Économie, des Finances et de la Souveraineté industrielle et numérique

(Case C-624/22)

(2023/C 15/27)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Société BP France

Defendant: Ministre de l’Économie, des Finances et de la Souveraineté industrielle et numérique

Questions referred

| 1. | Must the provisions of Articles 17 and 18 of Directive 2009/28/EC (1) and Article 30 of Directive 2018/2001 (2) be interpreted as meaning that the monitoring mechanisms under the mass balance approach, and the national or voluntary systems which they lay down, are intended only to assess and to justify the sustainability of the raw materials and biofuels, and mixtures of them, and are not therefore intended to regulate the monitoring and traceability, in finished products resulting from the co-processing procedure, of the share of energy from renewable sources contained in those products and consequently to harmonise consideration of the share of energy contained in such products for the purposes referred to in Article 17(1)(a), (b) and (c) of Directive 2009/28/EC, and Article 25 and Article 29(1), first subparagraph, (a), (b) and (c) of Directive 2018/2001? |
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1.

Must the provisions of Articles 17 and 18 of Directive 2009/28/EC (1) and Article 30 of Directive 2018/2001 (2) be interpreted as meaning that the monitoring mechanisms under the mass balance approach, and the national or voluntary systems which they lay down, are intended only to assess and to justify the sustainability of the raw materials and biofuels, and mixtures of them, and are not therefore intended to regulate the monitoring and traceability, in finished products resulting from the co-processing procedure, of the share of energy from renewable sources contained in those products and consequently to harmonise consideration of the share of energy contained in such products for the purposes referred to in Article 17(1)(a), (b) and (c) of Directive 2009/28/EC, and Article 25 and Article 29(1), first subparagraph, (a), (b) and (c) of Directive 2018/2001?

| 2. | If the first question is answered in the negative, do those provisions preclude a Member State, in order to set the volume of HVO to be retained as input to the stock accounts which operators must maintain for the purposes of determining an incentive tax on the incorporation of biofuels paid in that State when the share of renewable energy in fuel released for consumption during the calendar year is lower than the national target for the share of renewable energy in transport, from requiring, upon entry into the first national tax warehousing facility in relation to imports of fuel containing HVO produced in another Member State under a co-processing procedure, a physical analysis of the HVO content of such fuel to be carried out, including where the installation in which the fuel was produced uses a mass balance approach which is certified by a voluntary system recognised by the Commission as being a comprehensive system? |
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2.

If the first question is answered in the negative, do those provisions preclude a Member State, in order to set the volume of HVO to be retained as input to the stock accounts which operators must maintain for the purposes of determining an incentive tax on the incorporation of biofuels paid in that State when the share of renewable energy in fuel released for consumption during the calendar year is lower than the national target for the share of renewable energy in transport, from requiring, upon entry into the first national tax warehousing facility in relation to imports of fuel containing HVO produced in another Member State under a co-processing procedure, a physical analysis of the HVO content of such fuel to be carried out, including where the installation in which the fuel was produced uses a mass balance approach which is certified by a voluntary system recognised by the Commission as being a comprehensive system?

| 3. | Does EU law, in particular the provisions of Article 34 TFEU, preclude a measure adopted by a Member State such as that described in paragraph 14 above, where, on the one hand, fuel containing biofuel produced by means of the co-processing procedure carried out within a refinery located on the national territory of that Member State is not subject, when it is released for consumption in that Member State directly on leaving the installation, to such a physical analysis, and where, on the other, the Member State agrees, in order to determine, upon exit from a tax warehousing facility for production or national tax warehousing facility, the biofuel content which may be allocated for tax purposes between content certificates issued for a given period, to evaluate, on the basis of the installation’s average monthly incorporation rate, the biofuel content of exports or releases from consumption in sectors other than transport? |
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3.

Does EU law, in particular the provisions of Article 34 TFEU, preclude a measure adopted by a Member State such as that described in paragraph 14 above, where, on the one hand, fuel containing biofuel produced by means of the co-processing procedure carried out within a refinery located on the national territory of that Member State is not subject, when it is released for consumption in that Member State directly on leaving the installation, to such a physical analysis, and where, on the other, the Member State agrees, in order to determine, upon exit from a tax warehousing facility for production or national tax warehousing facility, the biofuel content which may be allocated for tax purposes between content certificates issued for a given period, to evaluate, on the basis of the installation’s average monthly incorporation rate, the biofuel content of exports or releases from consumption in sectors other than transport?

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(1)  Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16).

(2)  Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources (recast) (OJ 2018, L 328, p. 82).

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