Opinion of the Advocate General — ECLI:EU:C:2024:30
Date: 2024-01-11
Language of the case: French
Subject matter: Energy;Environment;Free movement of goods;Approximation of laws;Quantitative restrictions
Procedure: Reference for a preliminary ruling
Origin: France

summary, the following arguments in support of its action: – The TIRIB Circular is incompatible with the objectives of Directives 2009/28 and 2018/2001, in that it requires an economic operator to provide evidence of compliance (with the sustainability criteria in respect of biofuels included in the basis of assessment of the tax) other than that required by the directives. – The purpose of the obligation to carry out a physical analysis at the time when fuel containing biofuels enters a French tax warehousing facility is to determine the actual biogenic molecule content of the consignment in question. (14) – In view of the random distribution of biogenic molecules in the flow of fossil materials resulting from the co-processing, the content measured is likely to differ from that appearing on the accompanying documents for the consignment in question by more than the 10% allowed under paragraph 111 of the TIRIB Circular. Taking the content measured into account, instead of the content indicated on the accompanying document, may result in a smaller reduction in the TIRIB. – In so far as the refinery which produces the biofuels participates in a voluntary system recognised by the European Commission as being a comprehensive system, the MB method provided for by Directives 2009/28 and 2018/2001 is sufficient to assess, for the purposes of keeping stock accounts specific to the TIRIB, the biogenic molecule content of the fuels which that company imports into the French tax warehousing facility. 23. The defendant administrative authority argued that the sole purpose of using a physical analysis is to determine the volumes of biofuel received at the first French tax warehousing facility before recording that volume as input in the stock accounts kept specifically for the TIRIB. This is intended to ensure that the eligible products for the purposes of the reduction of the TIRIB correspond to the quantities of biofuels actually delivered in France. 24. The defendant administrative authority adds that this enables the French State to achieve the target share of energy from biofuel in the transport sector set by Directive 2009/28. The analysis required by the TIRIB Circular is not intended to determine the raw material from which the biofuel was produced or to verify that it meets the sustainability criteria laid down by Directives 2009/28 and 2018/2001. 25. Against that background, the Conseil d’État (Council of State) has referred the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must the provisions of Articles 17 and 18 of Directive [2009/28] and Article 30 of Directive 2018/2001 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], 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? (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 [production facility under a duty suspension arrangement] 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 [facility]’s average monthly incorporation rate, the biofuel content of exports or releases from consumption in sectors other than transport?’ III. Procedure before the Court 26. The request for a preliminary ruling was received at the Court on 30 September 2022. 27. Written observations were lodged by BP France, the Austrian, French and Netherlands Governments, and the Commission. All of the former took part in the hearing held on 25 October 2023. IV. Assessment A. Preliminary points 1. The applicable directive 28. Directive 2018/2001 entered into force on 24 December 2018 and repealed Directive 2009/28 with effect from 1 July 2021. (15) The referring court asks the Court of Justice about the interpretation of both directives, from which I conclude that, for reasons relating to domestic law, it considers Directive 2018/2001 to be applicable to the dispute. 29. If that is the case, it seems to me to be sufficient for the Court to rule only on Directive 2018/2001, Articles 29 and 30 of which are essentially the same as Articles 17 and 18 of Directive 2009/28. The Court’s interpretation of the provisions of Directive 2018/2001 would, in any event, be applicable to the associated provisions of Directive 2009/28. 2. Biofuel production 30. For a proper understanding of the dispute it is necessary to explain briefly, based on the information available in the case file, how biofuels (16) are produced through the co-processing technique and the methods for determining the percentage of bio-based molecules present in the end product. 31. There are industrial plants which are engaged solely in the production of biofuel (biorefineries), where the problem of blending such fuel with materials of fossil origin does not arise. However, there are also plants, such as the plant in Castellón (Spain) from which BP France imports biofuel into France, which use the co-processing technique to process biomass and fossil feedstock together in a common process. 32. Through co-processing, a refinery processes biomass feedstock (17) and fossil feedstock (which tends to be of petroleum origin) and transforms them into final fuels. (18) Fuels co-processed in this way must contain a share of biofuels. (19) 33. The end product obtained through co-processing is composed, therefore, of molecules of fossil origin plus molecules of biogenic origin, without it being technically possible to separate one from the other. The end product must certainly contain a certain proportion of biofuels but it is difficult to determine the amount of these. 34. It is possible to monitor accurately the exact amount of industrial process input biomass at the refinery (by keeping records of materials) but it is difficult to determine with the same degree of accuracy the process output amount corresponding to biomass in a particular batch. 35. The reason for that difficulty is that the flow of material during the refining process leads to a random distribution of molecules of biogenic origin. Accordingly, a particular batch resulting from co-processing may have a higher concentration of biofuels than another. 36. The most accurate scientific method for measuring the quantity of molecules of biogenic origin in co-processed fuels appears to be the C‑14 method. That explains why the Commission required its use when it adopted Delegated Regulation 2023/1640 which, as I have already pointed out, is not applicable ratione temporis to these proceedings. B. Question 1 37. The referring court seeks to ascertain, essentially, whether the MB method provided for in Article 30 of Directive 2018/2001: (a) is used only to determine the sustainability of raw materials, biofuels and mixtures of these; or (b) is also intended to ensure the monitoring and traceability of the share of renewable energy contained in the end product resulting from co-processing. 38. The aim of Directive 2018/2001 is to promote the use of renewable energy, for which purpose Member States: – Are to collectively ensure that the share of energy from renewable sources in the gross final consumption of energy in 2030 is at least 32% (Article 3(1)). – Must impose on ‘fuel suppliers’ the obligation to increase the minimum share of renewable energy within the final consumption of energy in the transport sector to 14% (Article 25(1)). One way of reaching that threshold is to encourage the use of biofuels. 39. Articles 29 and 30 of Directive 2018/2001 contain, respectively, the sustainability and greenhouse gas emissions saving criteria for biofuels, bioliquids and biomass fuels (Article 29) and the rules on verification of compliance with those criteria (Article 30). 40. Directive 2009/28 provided for exhaustive harmonisation of the sustainability criteria, which was retained by Directive 2018/2001. Consequently, Member States may not introduce further criteria or cease to use any of those laid down in Article 17 of Directive 2009/28. (20) 41. For the purposes of establishing compliance with those sustainability criteria, where this is necessary under Article 30 of Directive 2018/2001, (21) the EU legislature opted for the MB method, (22) provided that the conditions set out in that provision are fulfilled. 42. The MB method establishes a chain of custody from production to placing on the market and is based on a documentation and counting system with independent controls. It is, therefore, one of the ‘… verification mechanisms intended to ensure the correct application of Article 17 of [Directive 2009/28] [equivalent to Article 29 of Directive 2018/2001]’ (23) or, which amounts to the same thing, of the sustainability criteria for biofuels. 43. The Court had occasion to refer to that method in the judgment in E.ON Biofor Sverige, pointing out that it was chosen in order to ‘… ensure that, between the moment of production of sustainable biofuel and that of its consumption, such a physical link remains in place. … the EU legislature has, furthermore, also pointed out that the application of the mass balance system to verify compliance should maintain the integrity of the system while at the same time avoiding the imposition of an unreasonable burden on industry.’ (24) 44. Under Article 30(4) of Directive 2018/2001, monitoring of the application of the MB method may be carried out by voluntary national or international schemes, which are approved by the Commission (25) and which set standards for the production of biofuels, bioliquids or biomass fuels capable of demonstrating compliance with the sustainability criteria laid down in Article 29(2) to (7). (26) 45. As the Netherlands Government points out, those voluntary schemes may be recognised by the Commission only if they apply an MB method. (27) 46. In this case, the refinery from which BP France imports biofuels applies a voluntary scheme (28) recognised by the Commission (29) to demonstrate compliance with the sustainability criteria laid down in Directive 2018/2001. 47. That voluntary scheme uses an MB methodology in accordance with the requirements of Article 30(1) and (2) of Directive 2018/2001. That is apparent from recital 6 of Implementing Decision 2022/602. However, that decision says nothing about the possibility of using the ISCC EU voluntary scheme to determine the proportion of molecules of biogenic origin in a fuel produced by co-processing. 48. I agree with the Commission and the French, Netherlands and Austrian Governments that Article 30 of Directive 2018/2001 merely stipulates that the MB method is suitable for verifying compliance (by biofuels) with the sustainability criteria in that directive but not for demonstrating how many molecules of biogenic origin are contained in co-processed fuels. 49. There is nothing in Article 30 of Directive 2018/2001 to suggest that the MB method is to be used to establish the proportion of molecules of biogenic origin present in a fuel produced by co-processing. The Commission decisions on the recognition of voluntary schemes do not refer to the use of the MB method for those purposes either. (30) 50. The MB method makes it possible to account for biofuel entering a refinery and to attribute to the fuel produced a proportionate share of sustainability. According to the information provided to the Court, that method is not suitable for measuring the exact proportion of molecules of biogenic origin in each batch obtained from co-processing. 51. Owing to that limitation of the MB method, Article 28(5) of Directive 2018/2001 tasked the Commission with the adoption of a delegated act specifying the methodology for determining the share of biofuel and biogas for transport resulting from biomass being processed with fossil fuels. 52. In compliance with that instruction, the Commission adopted Delegated Regulation 2023/1640 which, as I stated above, although not applicable ratione temporis to this dispute (it entered into force on 8 September 2023), may provide some interpretative guidelines for Directive 2018/2001. 53. Delegated Regulation 2023/1640, while allowing economic operators to use their own verification methods, (31) requires them to verify regularly the correctness of those methods by using C‑14 testing. (32) In addition, verification by means of C‑14 testing methods is to be required for all outputs claiming a carbon-based bio-content (Article 1(5) of Delegated Regulation 2023/1640). 54. When economic operators opt for the MB method, they are required specifically to apply ‘… [d]ifferent conversion factors … for each output that most accurately correspond to the measured bio-content through the radiocarbon 14C testing results’. (33) 55. Therefore, in my view, Delegated Regulation 2023/1640 confirms that the MB method is not suitable, on its own, for determining the bio-based molecule content present in each batch of co-processed biofuel. 56. In summary, I believe that the MB method, provided for in Article 30 of Directive 2018/2001, is used to determine compliance with the sustainability criteria applicable to raw materials, biofuels and mixtures of them but is not intended to measure the share of bio-based molecules contained in biofuel produced by co-processing. C. Question 2 57. The referring court has submitted its second question only in the event that the answer to the first question is as I propose. 58. The referring court asks whether Article 30 of Directive 2018/2001 precludes legislation which requires ‘… 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’. 59. France laid down rules governing the TIRIB (which would become the TIRUERT in 2022) in Article 266 quindecies of its Customs Code, in Decree No 2019/570 and in the TIRIB Circular. Taxable persons who market fuel pay that tax on the difference between the national target for the share of energy from renewable sources in transport and the proportion of renewable energy contained in the fuel placed on the market. 60. In view of the fact that the TIRIB is based on the annual volume of fuel consumed, the TIRIB Circular requires a C‑14 laboratory analysis to enable determination of the actual bio-based molecule content in fuel received in France. 61. BP France submits that the requirement to use the C‑14 method is inappropriate for fuel manufactured by co-processing. It further submits that that requirement runs counter to use of the MB method and the voluntary certification schemes approved by the Commission. 62. For the reasons I shall set out below, I do not agree with the arguments put forward by BP France. 63. First, the harmonisation effected by Delegated Regulation 2023/1640 would not have been necessary if the MB method and the voluntary certification schemes had been sufficient and appropriate for measuring the proportion of bio-based molecules. 64. However, as I have already pointed out, the MB method does not appear to be suitable for measuring the proportion of bio-based molecules. The same occurred, in the situation preceding the entry into force of Delegated Regulation 2023/1640, in relation to voluntary certification schemes, the primary objective of which is to show compliance by biofuels with the sustainability criteria laid down in Article 29 of Directive 2018/2001. 65. Therefore, in order to measure the proportion of bio-based molecules in co-processed fuel, Delegated Regulation 2023/1640 provides that the C‑14 method is to be the sole method or, if another method (MB, energy balance or yield methods) is used, a supplementary method. 66. Secondly, in accordance with Article 30(9) of Directive 2018/2001, where an economic operator provides evidence or data obtained in accordance with a voluntary certification scheme approved by the Commission, a Member State will not require the supplier to provide further evidence of compliance with the sustainability criteria laid down in Article 29(2) to (7) of that directive. 67. What the provision prohibits is the requirement by a Member State of additional evidence (to that provided under the voluntary certification scheme) in relation to compliance with the sustainability criteria. (34) It says nothing about such additional evidence as regards the proportion of bio-based molecules in fuel produced by co-processing. 68. Thirdly, Directive 2018/2001 promotes the use of voluntary certification schemes that are subject to enhanced standards of reliability, transparency and independent auditing, in order to prevent fraud when evidence and data are provided in relation to compliance with the sustainability criteria by biofuels. (35) 69. The same aims (the obtaining of reliable and transparent data and the prevention of fraud) (36) may, in principle, justify national provisions which require a more accurate method, like C‑14, for quantifying the proportion of bio-based molecules present in fuels produced by co-processing. 70. However, the C‑14 analysis required by the TIRIB Circular would not be justified (because it would be superfluous) if the voluntary certification scheme relied on by a producer of co-processed fuel already included that type of analysis at source. That would be the case if that scheme were to verify that the proportion of molecules of biogenic origin in the fuel obtained had been accurately measured. 71. At the hearing: – BP France explained that it uses C‑14 analysis at refineries which use the ISCC EU voluntary scheme, but it did not confirm specifically that batches of co-processed fuel exported to France from the refinery at Castellón (Spain) would undergo a C‑14 analysis equivalent to that required under French law. – The French Government stated that, up to now, none of the batches of co-processed fuel imported into France from other Member States provide certificates confirming that they have undergone a C‑14 analysis, in order to provide proof of the proportion of molecules of biogenic origin present in them. 72. It is, in any event, for the referring court to give a decision on the dispute between the parties regarding the inclusion, in the voluntary certification scheme relied on by BP France, of a C‑14 analysis which makes it possible to verify the proportion of molecules of biogenic origin in imported fuel. 73. It can be inferred from the above that: – Article 30 of Directive 2018/2001 allowed a Member State to adopt legislation, like the French legislation, to measure accurately the proportion of biogenic molecules in co-processed biofuels, in order to apply an incentive tax on the use of renewable energy; – subject to the referring court’s assessment, the use of voluntary certification schemes approved by the Commission, such as the ISCC EU scheme, does not appear to provide adequate proof of the proportion of bio-based molecules in imported batches of co-processed biofuels. 74. Although Delegated Regulation 2023/1640 does not apply ratione temporis to the dispute, the adoption of that regulation changes the previous situation. Since its entry into force, that regulation provides that, for the purpose of measuring the proportion of bio-based molecules in co-processed fuels, the only method (or the supplementary method if other methods (MB, energy balance, yield methods) are used) is the C‑14 analysis. Since there has been such exhaustive harmonisation, the Member States no longer have competence to adopt national provisions which lay down a method of analysis other than those provided for in that regulation. 75. Furthermore, as the Commission confirmed at the hearing, any voluntary certification schemes which the Commission may have recognised since the entry into force of Delegated Regulation 2023/1640 must include not only the MB method for establishing compliance with the sustainability criteria but also the C‑14 method for establishing the proportion of biogenic molecules in co-processed fuels, in accordance with that regulation. 76. In summary, the reply which I propose to the second question is that, until the entry into force and application of Delegated Regulation 2023/1640, Article 30 of Directive 2018/2001 did not preclude, in principle, national legislation, such as that at issue in these proceedings, which requires a C‑14 analysis in order to measure accurately the proportion of molecules of biogenic origin in fuel obtained through co-processing, even if the production plant uses an MB method certified by a voluntary scheme recognised by the Commission as being a comprehensive scheme. D. Question 3 77. The wording of question 3 is complex. The referring court asks about the compatibility with Article 34 TFEU (free movement of goods) of national legislation in respect of which it highlights two features: – ‘Fuel containing biofuel produced by means of the co-processing procedure carried out within a refinery located on the national territory of [France] is not subject, when it is released for consumption in that Member State [France] directly on leaving the installation, to such a physical [C‑14] analysis’. – France ‘agrees, in order to determine, upon exit from a [production facility under a duty suspension arrangement] or national tax warehousing facility, the biofuel content which may be allocated for [TIRIB] purposes between content certificates issued for a given period, to evaluate, on the basis of the [facility]’s average monthly incorporation rate, the biofuel content of exports or releases from consumption in sectors other than transport’. 78. At the material time, the European Union had not harmonised exhaustively the methods that may be used to determine the proportion of biogenic molecules in co-processed fuel. That harmonisation was brought about later by Delegated Regulation 2023/1640, as I have already pointed out. 79. Accordingly, the Member States were entitled to lay down provisions governing such methods for measuring the proportion of biogenic molecules, and that is what the French State did. When exercising that competence in relation to a non-harmonised matter, Member States were required to comply with primary law (37) and, in particular, Article 34 TFEU, which prohibits quantitative restrictions on imports and all measures having equivalent effect in intra-EU trade. 80. According to settled case-law of the Court, (38) all measures of a Member State which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union are considered as measures having an effect equivalent to quantitative restrictions on imports within the meaning of Article 34 TFEU. Such measures include measures which discriminate directly or indirectly against imports, measures relating to selling arrangements for goods and measures which make access to the market of a Member State more difficult for products originating in other Member States. (39) 81. According to point 114 of the TIRIB Circular, the contested measure applies only to co-processed biofuels which are imported from other Member States. A C‑14 analysis is required only for imports, intra-Community introductions of goods and domestic consignments of fuel containing biofuel upon entry into the first French tax warehousing facility, but not for biofuel produced at French refineries. The referring court states that ‘it is … apparent from the oral hearing that biofuels manufactured using the co-processing procedure in a refinery located in France are not subject to such control if they are not then received in a tax warehousing facility before being released for consumption’. (40) 82. There would, therefore, be more favourable treatment of all or some co-processed fuel produced in France, which is exempt from undergoing a C‑14 analysis. Imported co-processed fuel, on the other hand, must undergo such an analysis in order to determine the proportion of biogenic molecules for the purposes of the TIRIB. 83. If that were to be the outcome, the measure would make access more difficult for processed fuel imported into France from other Member States. The French Government admits as much, acknowledging that the requirement of a C‑14 analysis is liable to impede the import of fuels from other Member States. 84. However, the French Government’s position is that the C‑14 analysis does not apply only to imported fuel but also to fuel of domestic origin. (41) 85. When asked about that point at the hearing, the French Government acknowledged that its interpretation does not coincide with that set out by the Conseil d’État (Council of State) in the order for reference. The French Government maintains that: – The equal treatment of all co-processed fuel (whether imported or not) flows from Article 266 quindecies of the Customs Code, and from Article 3(3) of Decree 2019/570 and points 30 and 33 of Circular 20-004 on the usine exercée arrangements. (42) – There are two refineries producing co-processed fuel in France. The French Government stated that a customs arrangement (usine exercée) is applied at those refineries, which allows co-processed fuel to be placed directly on the market without passing through a tax warehouse, because it is possible for the customs authorities to carry out continuous supervision of the production of that fuel. (43) 86. The interpretation of national law does not fall within the jurisdiction of the Court of Justice, which must confine itself to the information provided by the referring court. The Court is, I stress, required to reply to the reference for a preliminary ruling while accepting that the relevant legal and factual framework is that set out by the referring court, no matter how much any of the parties to the proceedings may disagree with it. 87. On that basis, the definition of the disputed requirement, as outlined by the referring court, makes it possible to classify it as a measure having an effect equivalent to a quantitative restriction on imports, contrary to Article 34 TFEU. It follows from the wording of the request for a preliminary ruling that the TIRIB Circular promotes the use of biofuel that has been co-processed in France while making the use of biofuel which has come from other Member States more difficult. 88. Furthermore, that legislation would also be a measure having an effect equivalent to a restriction on imports even if it were applied in a non-discriminatory and equal way to imported co-processed biofuels and co-processed biofuels produced in France: the requirement for a C‑14 analysis would make imports of such biofuels into French territory more difficult in any event. 89. Nevertheless, it is possible that that restrictive measure may have a justification which would render it compatible with EU law. In any event, it will be much more difficult to argue in favour of that justification if the measure applies only to imported co-processed biofuels and not to those produced domestically. 1. Is there a justification for the measure? 90. National legislation or practices constituting a measure having an effect equivalent to a quantitative restriction may be justified on one of the public interest grounds listed in Article 36 TFEU or by overriding requirements. In either case, the national provision must, in accordance with the principle of proportionality, be appropriate for ensuring attainment of the objective pursued and must not go beyond what is necessary to attain that objective, while it is for the Member State which adopted the provision to demonstrate its compatibility with that principle. (44) 91. The French Government pleads as justification for the restrictive measure the overriding requirements of protecting the environment and combating fraud. It argues that the tax advantage consisting in the reduction in the TIRIB must benefit solely biofuels released for consumption on the national territory whose actual bio-based molecule content does in fact exceed the national incorporation target for transport set by Article 266 quindecies of the Customs Code. 92. According to the Court’s traditional case-law, (45) overriding requirements may only justify national measures that are applicable without distinction to domestic products and to imported products. Consequently, if, as the referring court states, the French measure were applicable to imports of co-processed biofuels and not to domestically produced biofuels, the overriding requirements of protecting the environment and preventing fraud would not be capable of justifying it. 93. That traditional case-law was subsequently relaxed by the Court, when analysing the justification of distinctly applicable measures by an overriding requirement, or where one of these is covered by a ground laid down in Article 36 TFEU. (46) 94. I shall therefore examine the possible justification from the perspective of the protection of the environment and the prevention of fraud, which are overriding requirements accepted by the Court in relation to intra-Community trade. (47) 95. In principle, there may be sufficient justification for the TIRIB Circular since it is aimed at and capable of: – On the one hand, protecting the environment through the use of renewable energy. The use of a C‑14 analysis makes it possible to grant advantages to (promote) certain fuels by reducing their tax burden on the basis of their share of biofuel. – On the other hand, preventing the risk of fraud (48) in the co-processed biofuel production chain. The C‑14 method makes it possible to ascertain with certainty the actual proportion of biogenic HVO molecules in biofuel and, using that datum, to apply correctly an incentive tax on the use of biofuels. 2. Is there compliance with the principle of proportionality? 96. Once the justification has been accepted, it remains to be established whether the restrictive measure complies with the principle of proportionality. That will be the case only if it is appropriate for ensuring the attainment of the aim pursued and does not go beyond what is necessary to attain that aim because no less restrictive alternative exists. 97. From that perspective, it is possible to agree that the requirement imposed by the TIRIB Circular is appropriate for achieving the aim pursued, because: – It appears that determination of the proportion of biogenic molecules in co-processed fuel is not possible using less restrictive alternatives which differ from a C‑14 analysis. – The MB method is of limited use for those purposes and only gives approximate results. Therefore, Delegated Regulation 2023/1640 provided for the C‑14 analysis as a common verification method for measuring the proportion of molecules of biogenic origin present in co-processed biofuels and for the regular (supplementary) use of that method when producers use other methods (such as the MB method). 98. It is also important to point out, as evidence of the proportionality of the measure, that the TIRIB Circular does not require a physical C‑14 analysis to be carried out in a laboratory in all cases and for all fuel imports: (49) where an initial analysis has been carried out and it agrees (by a margin of 10%) with the proportion of molecules of biogenic origin declared by the importing undertaking, the C‑14 analysis will be repeated only on a random basis. (50) 99. A restrictive measure can be considered to be an appropriate means of securing the achievement of the objective pursued only if it genuinely reflects a concern to secure the attainment of that objective in a consistent and systematic manner. (51) 100. In its order, (52) the referring court points out three factors which preclude a finding of such systematic coherence: – A C‑14 analysis is required to be carried out only in respect of imports, intra-Community introductions of goods and domestic consignments of fuel containing biofuel upon entry into the first French tax warehousing facility. – Biofuels produced by means of the co-processing procedure carried out in a refinery situated on French territory are not subject to a C‑14 analysis when they are released for consumption in that Member State directly on leaving the installation, without passing through a tax warehouse. – The French State agrees to evaluate the biofuel content of exports or releases of goods for consumption in sectors other than transport, taking into account the certificates recording the monthly incorporation rate of biofuel and without using a C‑14 analysis. 101. In the same vein, BP France explains (53) that, in order to a obtain a reduction in the rate of the TIRIB (or the TIRUERT), the French authorities require, first, absolute certainty, by means of C‑14 testing, of the actual presence of renewable energy at the time when the imported product (biofuel produced by co-processing) is placed on the market and, secondly, a simple pro rata annual calculation which does not provide any guarantee of traceability, unlike the MB method, in the case of electricity of renewable origin. 102. It can be concluded from those facts that the measure at issue does not comply with Article 34 TFEU, in so far as it is not appropriate to secure the attainment of any objectives which may justify it in a consistent and systematic manner. V. Conclusion 103. In the light of the foregoing considerations, I propose that the Court of Justice reply to the Conseil d’État (Council of State, France) as follows: Article 30 of 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, as the legislation stood prior to the entry into force of Commission Delegated Regulation (EU) 2023/1640 of 5 June 2023 on the methodology to determine the share of biofuel and biogas for transport, produced from biomass being processed with fossil fuels in a common process, and Article 34 TFEU are to be interpreted as meaning that: – The aim of the mass balance method is to determine compliance with the sustainability criteria laid down in Article 29 of Directive 2018/2001, applicable to raw materials, biofuels and mixtures of them, and it is not intended to quantify the share of molecules of biogenic origin contained in a biofuel produced by means of co-processing. – In principle, Article 30 of Directive 2018/2001 did not preclude, until the entry into force and application of Delegated Regulation 2023/1640, domestic legislation which requires a radiocarbon (C‑14) analysis to be carried out when imported biofuel produced by co-processing enters the first national tax warehousing facility, in order to determine the relevant proportion of molecules of biogenic origin for the purposes of calculating an incentive tax on the use of biofuels. It is immaterial for those purposes that the refinery in which that fuel was produced uses a mass balance system certified by a voluntary scheme recognised by the European Commission as a comprehensive scheme. – Article 34 TFEU precludes national legislation which requires a radiocarbon (C‑14) analysis to be carried out when imported biofuel produced by co-processing enters the first national tax warehousing facility, in order to determine the relevant proportion of molecules of biogenic origin for the purposes of calculating an incentive tax on the use of biofuels if such an analysis is not required where co-processed biofuels are produced domestically. 1 Original language: Spanish. 2 The taxe incitative relative à l’incorporation de biocarburants (incentive tax on the incorporation of biofuels; ‘TIRIB’). Since 1 January 2022, it has been called the taxe incitative relative à l’utilisation de l’énergie renouvelable dans le transport (incentive tax on the use of renewable energy in transport; ‘TIRUERT’). 3 Carbon-14 is a radioactive isotope of carbon which can be used to detect the presence of biological elements in samples such as biodiesel mixtures or other liquid samples entirely or partially of organic origin, for example, vegetable oils. 4 Inter alia, judgment of 22 June 2017, E.ON Biofor Sverige (C‑549/15, EU:C:2017:490; ‘the judgment in E.ON Biofor Sverige’). 5 Directive 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). 6 Directive of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources (OJ 2018 L 328, p. 82). Consolidated version of 7 June 2022. 7 Commission Delegated Regulation of 5 June 2023 on the methodology to determine the share of biofuel and biogas for transport, produced from biomass being processed with fossil fuels in a common process (OJ 2023 L 205, p. 1). 8 In the version applicable ratione temporis to the dispute. It was subsequently amended by loi no 2022‑1726, du 30 décembre 2022 (Law No 2022-1726 of 30 December 2022), Article 67(V). 9 Décret No 2019-570 du 7 juin 2019 portant sur la taxe incitative relative à l’utilisation d’énergie renouvelable dans les transports (JORF No 133 of 9 June 2019). It was amended by Décret No 2022-1330 du 17 octobre 2022 (JORF No 242 of 18 October 2022). 10 Circulaire du 18 août 2020 du ministre délégué chargé des comptes publiques aux opérateurs économiques et aux services des douanes sur la taxe incitative relative à l’incorporation de biocarburants (TIRIB) (NOR: ECOD2020901C) (Circular of 18 August 2020, adopted by the Minister Delegate for Public Accounts to economic operators and customs concerning the incentive tax on the incorporation of biofuels (TIRIB); ‘the TIRIB Circular’). 11 ‘Usine exercée’ (UE): this is defined as a tax establishment or facility which allows energy products under a suspensive arrangement applicable to such products to be produced, received or dispatched. The French Government asserts (paragraph 84 of its written observations) that ‘the UE arrangement … – a plant corresponding to a French refinery’ is one of two customs arrangements indicated for the receipt of biofuels. 12 ‘Entrepôt fiscal de stockage’ (EFS): when applied to petroleum products, this is defined as a tax warehouse where such products may be received, held or dispatched under a suspensive arrangement for certain taxes. 13 [Footnote not relevant to English translation]. 14 The order for reference states that it is common ground in the main proceedings that, at present, only the radiocarbon (C‑14) method makes it possible to quantify that content in respect of fuel containing HVOs produced by the co-processing method. 15 Article 37 of Directive 2018/2001: ‘Directive 2009/28/EC … is repealed with effect from 1 July 2021 … References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table set out in Annex XI.’ 16 Biofuels are defined as ‘liquid fuel for transport produced from biomass’ (point 33 of Article 2 of Directive 2018/2001). 17 Biomass is defined as ‘the biodegradable fraction of products, waste and residues from biological origin from agriculture, including vegetal and animal substances, from forestry and related industries, including fisheries and aquaculture, as well as the biodegradable fraction of waste, including industrial and municipal waste of biological origin’ (point 24 of Article 2 of Directive 2018/2001). Biomass may consist, for example, of lipid-based material (such as vegetable oil, crude tall oil or pyrolysis oil). 18 The final fuels produced from such a feedstock mix are usually diesel fuel, jet fuel, heating oil, marine fuel, gasoline, gasoline components and sometimes propane gas, a constituent of Liquefied Petroleum Gas, while minor fractions of other products can also be present. 19 See recital 1 of Delegated Regulation 2023/1640. 20 That is the view expressed by the Commission in its Communication on the practical implementation of the EU biofuels and bioliquids sustainability scheme and on counting rules for biofuels (OJ 2010 C 160, p. 8). 21 Transcribed in point 8 of this Opinion. 22 As I indicated in my Opinion in E.ON Biofor Sverige (C‑549/15, EU:C:2017:25, points 44 and 45), that choice involved rejecting the identity preservation method, which prohibits the mixing of biofuels with other biofuels or other types of fuel, and the tradable certificate (book and claim) method, which does not require a direct connection between the biofuel placed on the market and production of that biofuel from biomass which fulfils the sustainability criteria. 23 The judgment in E.ON Biofor Sverige, paragraph 39. 24 The judgment in E.ON Biofor Sverige, paragraph 64. 25 In accordance with the first paragraph of Article 30(5) of Directive 2018/2001, ‘the Commission shall adopt decisions under paragraph 4 of this Article by means of implementing acts. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 34(3). Such decisions shall be valid for a period of no more than five years.’ 26 Voluntary schemes played an important role with regard to demonstrating compliance with the sustainability and greenhouse gas emissions saving criteria for biofuels and bioliquids in accordance with Directive 2009/28. Directive 2018/2001 broadened their role, because they may now be used: (a) to certify that all biomass fuels, including gaseous and solid fuels, comply with the sustainability criteria and to provide accurate data on greenhouse gas emissions savings; (b) to certify that renewable liquid and gaseous fuels of non-biological origin [destined for the transport sector, and recycled carbon fuels] comply with the sustainability and greenhouse gas emissions saving criteria; (c) to demonstrate compliance with the rules laid down in Article 27(3) of Directive 2018/2001 for the calculation of renewable electricity in the transport sector; (d) to demonstrate that economic operators enter accurate information in the EU or national database on renewable fuels and recycled carbon fuels used in the transport sector, in accordance with Article 28(4) of Directive 2018/2001; and (e) to certify biofuels, bioliquids and biomass fuels with low indirect land-use change risk. 27 The voluntary schemes approved by the Commission can be viewed at https://energy.ec.europa.eu/topics/renewable-energy/bioenergy/voluntary-schemes_en. 28 Called International Sustainability & Carbon Certification (ISCC EU). 29 Commission Implementing Decision (EU) 2022/602 of 8 April 2022 on the recognition of the ‘International Sustainability & Carbon Certification – ISCC EU’ voluntary scheme for demonstrating compliance with the requirements set in Directive (EU) 2018/2001 of the European Parliament and of the Council for biofuels, bioliquids, biomass fuels, renewable liquid and gaseous fuels of non-biological origin and recycled carbon fuels (OJ 2022 L 114, p. 182). 30 The Commission pointed this out at the hearing. 31 In accordance with Article 1(1) of Delegated Regulation 2023/1640, ‘economic operators co-processing biomass may develop and use a company-specific or process-specific testing method to determine the carbon-based share of bio-content that is adapted to their particular factory design and feedstock mix. That main testing method shall be based on either mass or energy balance, yield methods, or radiocarbon (14C) testing (i.e. radiocarbon detecting through Accelerator Mass Spectrometry (AMS) or Liquid Scintillation Counting (LSC) method) of the outputs.’ 32 See recital 4, transcribed in point 10 of this Opinion. 33 Article 2(1) of Delegated Regulation 2023/1640. 34 See recital 110 of Directive 2018/2001. 35 See Article 30(8) and recital 108 of Directive 2018/2001. 36 The contribution of the MB method and the voluntary certification schemes to the prevention of fraud was highlighted by the Court in the judgment of 4 October 2018, L.E.G.O. (C‑242/17, EU:C:2018:804, paragraph 66), and in my Opinion in that case (EU:C:2018:318, points 84 and 97). 37 Judgment of 12 November 2015, Visnapuu (C‑198/14, EU:C:2015:751, paragraph 40). 38 Judgments of 11 July 1974, Dassonville (8/74, EU:C:1974:82, paragraph 5); of 23 December 2015, Scotch Whisky Association and Others (C‑333/14, EU:C:2015:845, paragraph 31); and of 19 January 2023, CIHEF and Others (C‑147/21, EU:C:2023:31, paragraph 37). 39 Judgment of 10 February 2009, Commission v Italy (C‑110/05, EU:C:2009:66, paragraphs 35 and 37). 40 Order for reference, paragraph 16. 41 Written observations, paragraphs 93 to 100. 42 Circulaire du ministre de l’action et des comptes publics aux opérateurs économiques et aux services des douanes, du 4 février 2020, relative au régime de l’usine exercée (NOR: CPAD1917906C) (Circular of the Minister for the public sector and public accounts to economic operators and customs of 4 February 2020 on the usine exercée arrangements). There are no references to that circular in the order for reference. 43 National producers must fill in a technical data sheet for each manufactured product which is subject to supervision by the customs authorities; the C‑14 analysis is recorded on that sheet. 44 The judgment in E.ON Biofor Sverige, paragraphs 46 and 90. 45 Judgments of 7 May 1997, Pistre and Others (C‑321/94 to C‑324/94, EU:C:1997:229, paragraph 52), and of 17 June 1981, Commission v Ireland (113/80, EU:C:1981:139, paragraph 11). 46 Judgment of 1 July 2014, Ålands Vindkraft (C‑573/12, EU:C:2014:2037, paragraphs 77 to 119), and the Opinion of Advocate General Bot in that case (C‑573/12, EU:C:2014:37, point 79). Advocate General Bot proposed that the overriding requirements should also apply to the justification of discriminatory measures but that a ‘reinforced’ justification should be required. 47 Judgments of 6 October 2011, Bonnarde (C‑443/10, EU:C:2011:641, paragraph 34); of 1 July 2014, Ålands Vindkraft (C‑573/12, EU:C:2014:2037, paragraphs 77 to 82); and of 4 October 2018, L.E.G.O. (C‑242/17, EU:C:2018:804, paragraph 64). 48 At the hearing, the French Government stated that the aim of the contested legislation was to address certain fraudulent conduct, because certificates of compliance with the sustainability criteria had been identified which declared that batches exported to France contained a much higher proportion of bio-based molecules than they actually did. For example, where a refinery produced co-processed biofuel containing 50% biomass, established using the MB method, it would be declared that the batches exported to France contained 80% bio-based molecules in order to avoid payment of the TIRIB. 49 Point 114 of the TIRIB Circular, transcribed in point 17 above. 50 Needless to say, there will be no compliance with the principle of proportionality if there has been duplication of the requirements for imported co-processed fuels. In other words, if a C‑14 analysis were mandatory in the State of origin, it would not be possible to require the same analysis in the State of destination. Similarly, if the proportion of molecules of biogenic origin has been accurately established using data supplied by the manufacturer in accordance with a voluntary certification scheme, it will not be possible to require a C‑14 analysis either. There is nothing to suggest that that was what occurred in the dispute, subject to the examination which it falls to the referring court to carry out. 51 Judgment of 23 December 2015, Scotch Whisky Association and Others (C‑333/14, EU:C:2015:845, paragraph 37). 52 Paragraphs 16 and 19. 53 Paragraphs 72 to 79 of its written observations.