Opinion of the Advocate General — ECLI:EU:C:2014:37
Date: 2014-01-28
Language of the case: Swedish
Subject matter: Free movement of goods;Measures having equivalent effect;Quantitative restrictions
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary — Judgment of the Court (Grand Chamber) of 1 July 2014 1. Judicial proceedings — Oral procedure — Reopening — Conditions (Rules of Procedure of the Court of Justice, Art. 83) 2. Environment — Promotion of the use of energy from renewable sources — Directive 2009/28 — Rules on national support schemes — Aid scheme — Concept — National support scheme providing for the award of tradable green certificates for installations producing electricity from renewable energy sources — Scheme placing suppliers and certain electricity users under an obligation to deliver annually to the competent authority a certain number of green certificates — Included — Refusal to award green certificates for electricity production installations located outside the Member State in question — Lawfulness (European Parliament and Council Directive 2009/28, Art. 2, second para., point (k), and Art. 3(3)) 3. Free movement of goods — Quantitative restrictions — Measures having equivalent effect — National support scheme providing for the award of tradable green certificates for installations producing electricity from renewable energy sources — Obligation for electricity suppliers and certain users to deliver annually to the competent authority a certain number of green certificates failing which an administrative fine would be imposed — Refusal to award green certificates for electricity production installations located outside the Member State in question — Lawfulness — Justification — Promotion of the use of renewable energy sources for the production of electricity (Art. 34 TFEU) 4. EU law — Principles — Legal certainty — National legislation supporting the production of electricity from renewable energy sources — Support measures reserved only for green electricity production in the territory of the Member State concerned — Territorial scope not expressly apparent from that legislation — Respect of the principle of legal certainty — A matter for the national court to ascertain 1. See the text of the decision. (see para. 35) 2. Point (k) of the second paragraph of Article 2 and Article 3(3) of Directive 2009/28 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77 and 2003/30 must be interpreted as allowing a Member State to establish a support scheme, which provides for the award of tradable certificates to producers of green electricity solely in respect of green electricity produced in the territory of that State and which places suppliers and certain electricity users under an obligation to deliver annually to the competent authority a certain number of those certificates, corresponding to a proportion of the total volume of electricity that they have supplied or consumed. First, such a support scheme has the necessary characteristics to be categorised as a ‘support scheme’ within the meaning of point (k) of the second paragraph of Article 2 and Article 3(3) of Directive 2009/28. Secondly, 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 48, 53, 54, operative part 1) 3. Article 34 TFEU must be interpreted as not precluding national legislation which provides for the award of tradable certificates to green electricity producers solely in respect of green electricity produced in the territory of the Member State concerned and which places suppliers and certain electricity users under an obligation to surrender annually to the competent authority a certain number of those certificates, corresponding to a proportion of the total volume of electricity that they have supplied or used, failing which they must pay a specific fee. Admittedly, such 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 34 TFEU. However, the objective of promoting the use of renewable energy sources for the production of electricity, such as the objective pursued by such national legislation, is in principle capable of justifying barriers to the free movement of goods. On the one hand, as EU law currently stands, the territorial limitation established by such legislation may in itself be regarded as necessary in order to attain that legitimate objective. While it is admittedly true that the environmental protection objective underlying the increased production and consumption of green electricity seems capable of being pursued within the European Union regardless of whether that increase flows from installations located in the territory of a particular Member State, since, in particular, EU law has not harmonised the national support schemes for green electricity, it is possible in principle for Member States to limit access to such schemes to green electricity production located in their territory. In addition, as EU law currently stands, a Member State is legitimately able to consider that such a territorial limitation does not go beyond what is necessary in order to attain the objective of increasing the production and, indirectly, the consumption of green electricity in the European Union. On the other hand, given its other features, considered together with the territorial limitation, such national legislation, viewed as a whole, meets the requirements entailed by the principle of proportionality. (see paras 75, 82, 92-94, 104, 105, 119, operative part 2) 4. It is for the national court to determine, taking into account all relevant factors — which may include the EU legislative context in which the national legislation supporting the production of electricity from renewable energy sources reserves the support measures to green electricity production in the territory of the Member State concerned — whether, in terms of its territorial scope, that legislation meets the requirements of the principle of legal certainty. (see para. 132, operative part 3)