# C_2022389EN.01000202.xml

| 10.10.2022 | EN | Official Journal of the European Union | C 389/2 |
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10.10.2022

EN

Official Journal of the European Union

C 389/2

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Request for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 21 June 2022 — Vapo Atlantic, S.A. v Entidade Nacional Para o Setor Energético E.P.E., Fundo de Eficiência Energética, Fundo Ambiental

(Case C-413/22)

(2022/C 389/03)

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Vapo Atlantic, S.A.

Defendants: Entidade Nacional Para o Setor Energético E.P.E., Fundo de Eficiência Energética, Fundo Ambiental

Questions referred

| 1. | Must Articles 3(4) and 18 of Directive 2009/28 (1) be interpreted as meaning that they preclude national legislation, such as that at issue in the dispute in the main proceedings, which, for the purposes of compliance with biofuel incorporation targets, provides that economic operators may, alternatively, evidence compliance with the same criteria by i) physically incorporating biofuels into fossil fuel, or ii) purchasing biofuel certificates from other operators with surplus biofuels? |
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1.

Must Articles 3(4) and 18 of Directive 2009/28 (1) be interpreted as meaning that they preclude national legislation, such as that at issue in the dispute in the main proceedings, which, for the purposes of compliance with biofuel incorporation targets, provides that economic operators may, alternatively, evidence compliance with the same criteria by i) physically incorporating biofuels into fossil fuel, or ii) purchasing biofuel certificates from other operators with surplus biofuels?

| 2. | Must Articles 3(4) and 18 of Directive 2009/28 be interpreted as meaning that they preclude national legislation, such as that at issue in the dispute in the main proceedings, under which the option of physically incorporating biofuel is confined to producers operating tax warehouses for processing, that option being denied to entities under an obligation to incorporate which import fuel as registered consignees, which have the option of purchasing biofuel certificates, failure to do so triggering a requirement to pay compensation (materially equivalent to a fine)? |
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2.

Must Articles 3(4) and 18 of Directive 2009/28 be interpreted as meaning that they preclude national legislation, such as that at issue in the dispute in the main proceedings, under which the option of physically incorporating biofuel is confined to producers operating tax warehouses for processing, that option being denied to entities under an obligation to incorporate which import fuel as registered consignees, which have the option of purchasing biofuel certificates, failure to do so triggering a requirement to pay compensation (materially equivalent to a fine)?

| 3. | Does it make any difference to the answer to the previous question if, at the material time, there were no biofuel certificates available for purchase on the market, meaning that a small operator could not buy any (or could do so only with great difficulty), and if the Direção-Geral de Energia e Geologia (Directorate General for Energy and Geology; ‘the DGEG’) had not organised the corresponding auctions, leaving the small operator with no option but to pay compensation (materially equivalent to a fine)? |
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3.

Does it make any difference to the answer to the previous question if, at the material time, there were no biofuel certificates available for purchase on the market, meaning that a small operator could not buy any (or could do so only with great difficulty), and if the Direção-Geral de Energia e Geologia (Directorate General for Energy and Geology; ‘the DGEG’) had not organised the corresponding auctions, leaving the small operator with no option but to pay compensation (materially equivalent to a fine)?

| 4. | Must Article 18(3) of Directive 2009/28 be interpreted as meaning that it requires independent audits (in the case of the national legislation, independent verifications) to be carried out as a precondition for the application of the sustainability scheme? |
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4.

Must Article 18(3) of Directive 2009/28 be interpreted as meaning that it requires independent audits (in the case of the national legislation, independent verifications) to be carried out as a precondition for the application of the sustainability scheme?

| 5. | Does Article 18(3) of Directive 2009/28 preclude a national system for the verification of compliance with sustainability criteria which, despite providing that verifying entities must be accredited to carry out independent verifications of compliance with the sustainability criteria (in accordance with Article 18(3) of that directive), did not in practice allow such entities to be selected because no calls for tender were issued, and, at the same time, requires economic operators to demonstrate their compliance with those criteria, without subjecting that compliance to any independent audit? |
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5.

Does Article 18(3) of Directive 2009/28 preclude a national system for the verification of compliance with sustainability criteria which, despite providing that verifying entities must be accredited to carry out independent verifications of compliance with the sustainability criteria (in accordance with Article 18(3) of that directive), did not in practice allow such entities to be selected because no calls for tender were issued, and, at the same time, requires economic operators to demonstrate their compliance with those criteria, without subjecting that compliance to any independent audit?

| 6. | If the previous questions are answered in the negative, must Article 34 TFEU be interpreted as meaning that it precludes national legislation, such as that at issue in the dispute in the main proceedings, interpreted in the manner described in the previous questions? |
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6.

If the previous questions are answered in the negative, must Article 34 TFEU be interpreted as meaning that it precludes national legislation, such as that at issue in the dispute in the main proceedings, interpreted in the manner described in the previous questions?

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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).

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