Opinion of the Advocate General — ECLI:EU:C:2013:294
Date: 2013-05-08
Language of the case: Dutch
Subject matter: Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Fourth Chamber), 11 September 2014 1. Judicial proceedings — Request that the oral procedure be reopened — Conditions for the reopening (Rules of Procedure of the Court of Justice, Art. 83) 2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Examination of the compatibility of national law with Union law — Not included — Providing the national court with full guidance on the interpretation of EU law — Included (Art. 267 TFEU) 3. Environment — Promotion of electricity produced from renewable energy sources in the internal electricity market — Directive 2001/77 — National support scheme providing for the issuance of green certificates in respect of green electricity produced on the territory of a region — Obligation for electricity suppliers to surrender annually to the competent authority a certain quota of those certificates on paid of administrative fine — Refusal to take account of guarantees of origin originating from other Member States of the European Union and from States which are parties to the Agreement on the European Economic Area — Lawfulness (European Parliament and Council Directive 2001/77, Arts 4 and 5) 4. Free movement of goods — Quantitative restrictions — Measures having equivalent effect — National support scheme providing for the issuance of green certificates in respect of green electricity produced on the territory of a region — Obligation for electricity suppliers to surrender annually to the competent authority a certain quota of those certificates on paid of administrative fine — Refusal to take account of guarantees of origin originating from other Member States of the European Union and from States which are parties to the Agreement on the European Economic Area — Not permissible — Justification — Conditions (Arts 28 EC and 30 EC; EEA Agreement, Arts 11 and 13) 5. EU law — Principles — Equal treatment — Discrimination on grounds of nationality — Prohibition — National support scheme providing for the issuance of green certificates in respect of green electricity produced on the territory of a region — Obligation for electricity suppliers to surrender annually to the competent authority a certain quota of those certificates on pain of administrative fine — Refusal to take account of guarantees of origin originating from other Member States of the European Union and from States which are parties to the Agreement on the European Economic Area — Lawfulness (Art. 18 TFEU; EEA Agreement, Art. 4; European Parliament and Council Directive 2003/54, Art. 3(1)) 1. See the text of the decision. (see paras 47, 48) 2. See the text of the decision. (see para. 51) 3. Article 5 of Directive 2001/77 on the promotion of electricity produced from renewable energy sources in the internal electricity market must be interpreted as not precluding a national support scheme which provides for the issuance, by the competent regional regulatory authority, of tradable certificates in respect of green electricity produced on the territory of the region concerned and which places electricity suppliers under an obligation, on pain of administrative fine, to surrender annually to that authority a certain number of those certificates corresponding to a proportion of the total volume of the electricity that they have supplied in that region, without those suppliers being allowed to fulfil that obligation by using guarantees of origin originating from other Member States of the European Union or non-member States which are parties to the EEA Agreement. The purpose of Article 5 is to achieve a situation where the origin of green electricity may be established through a guarantee of origin. The national support schemes by which producers of green electricity receive direct or indirect aid and which may use the green certificates mechanism are covered by a separate provision in that directive, namely Article 4. Yet there is nothing in the wording of Articles 4 and 5 or in the recitals in the preamble to Directive 2001/77 to suggest that the EU legislature intended to establish a link between the guarantees of origin and national support schemes for the production of green energy. The EU legislature did not intend to require Member States who opted for a support scheme using green certificates to extend that scheme to cover green electricity produced on the territory of another Member State. (see paras 59-61, 66, 69, operative part 1) 4. Articles 28 EC and 30 EC and also Articles 11 and 13 of the Agreement on the European Economic Area must be interpreted as not precluding a national support scheme which provides for the issuance, by the competent regional regulatory authority, of tradable certificates in respect of green electricity produced on the territory of the region concerned and which places electricity suppliers under an obligation, on pain of administrative fine, to surrender annually to that authority a certain number of those certificates corresponding to a proportion of the total volume of the electricity that they have supplied in that region, without those suppliers being allowed to fulfil that obligation by using guarantees of origin originating from other Member States of the European Union or non-member States which are parties to the Agreement on the European Economic Area, provided that: - mechanisms are established which ensure the creation of a genuine market for certificates in which supply can match demand, reaching some kind of balance, so that it is actually possible for the relevant suppliers to obtain certificates under fair terms; - the method of calculation and amount of the administrative fine to be paid by suppliers who have not fulfilled that obligation are fixed in such a way as not to exceed what is necessary to encourage producers actually to increase their production of green electricity and suppliers subject to that obligation actually to purchase the required certificates, by avoiding in particular penalising those suppliers in an excessive manner. That legislation is capable of impeding imports of electricity, especially green electricity, from other Member States and, in consequence, constitutes a measure having equivalent effect to quantitative restrictions on imports, in principle incompatible with the obligations under EU law resulting from Article 28 EC. However, the objective of promoting the use of renewable energy sources for the production of electricity is in principle capable of justifying barriers to the free movement of goods. Moreover, it does not appear that, merely by reserving a support scheme using green certificates exclusively to green electricity produced in the regional territory and by refusing to take account of guarantees of origin in respect of electricity produced in other Member States in order to fulfil the quota obligation, there has been infringement of the principle of proportionality. (see paras 88, 95, 103, 116, operative part 2) 5. The rules on non-discrimination contained in Article 18 TFEU, Article 4 of the Agreement on the European Economic Area and Article 3(1) of Directive 2003/54 concerning common rules for the internal market in electricity respectively must be interpreted as not precluding a national support scheme which provides for the issuance, by the competent regional regulatory authority, of tradable certificates in respect of green electricity produced on the territory of the region concerned and which places electricity suppliers under an obligation, on pain of administrative fine, to surrender annually to that authority a certain number of those certificates corresponding to a proportion of the total volume of the electricity that they have supplied in that region, without those suppliers being allowed to fulfil that obligation by using guarantees of origin originating from other Member States of the European Union or non-member States which are parties to the Agreement on the European Economic Area. That quota obligation applies to all electricity suppliers operating in the Flemish Region, irrespective of their nationality. Similarly, the fact that those suppliers may not use guarantees of origin in the place and stead of the green certificates applies to all of them, irrespective of their nationality. (see paras 121, 130, operative part 3)