Opinion of the Advocate General — ECLI:EU:C:2013:293
Date: 2013-05-08
Language of the case: French
Subject matter: Environment;Provisions governing the Institutions;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Fourth Chamber), 26 September 2013 1. Environment — Promotion of cogeneration based on a useful heat demand in the internal energy market — Directive 2004/8 — Rules relating to support schemes at national level — Scope — Not limited to high efficiency cogeneration (European Parliament and Council Directive 2004/8, Art. 7) 2. Fundamental rights — Charter of Fundamental Rights of the European Union — Equal treatment — Scope — National legislation implementing EU law — National support measure in favour of cogeneration and renewable energy sources which falls within the framework established by Directives 2001/77 and 2004/8 — Included (Charter of Fundamental Rights of the European Union, Arts 20, 21 and 51(1); European Parliament and Council Directives 2001/77, Art. 4, and 2004/8, Art. 7) 3. EU Law — Principles — Equal treatment — Different treatment objectively justified — Criteria for assessment — Application of a national measure implementing EU law (Charter of Fundamental Rights of the European Union, Arts 20 and 21) 4. Environment — Promotion of cogeneration based on a useful heat demand in the internal energy market — Directive 2004/8 — Promotion of electricity from renewable energy sources in the internal electricity market — Directive 2001/77 — Rules relating to support schemes at national level — Grant of a larger number of green certificates to cogeneration plants processing principally forms of biomass other than wood or wood waste — No breach of the principle of equal treatment (Charter of Fundamental Rights of the European Union, Arts 20 and 21; European Parliament and Council Directives 2001/77, Art. 4 and 2004/8, Art. 7) 1. Article 7 – which concerns national cogeneration support schemes – of Directive 2004/8 on the promotion of cogeneration based on a useful heat demand in the internal energy market and amending Directive 92/42 must be interpreted as meaning that its scope is not limited solely to cogeneration plants which are high efficiency cogeneration plants within the meaning of that directive. (see paras 37, 38, 41, operative part 1) 2. The principle of equal treatment and non-discrimination enshrined in Articles 20 and 21 of the Charter in particular is addressed to the Member States when they are implementing EU law, as follows especially from Article 51(1) of the Charter. It follows that, where a Member State adopts measures of support for cogeneration and renewable energy sources within a framework such as that laid down, first, by Directive 2004/8 on the promotion of cogeneration based on a useful heat demand in the internal energy market and amending Directive 92/42, in particular Article 7 thereof, and, secondly, by Directive 2001/77 on the promotion of electricity produced from renewable energy sources in the internal electricity market, in particular Article 4 thereof, that Member State is implementing EU law and, consequently, it must observe the principle of equal treatment and non-discrimination laid down in particular in Articles 20 and 21 of the Charter. (see paras 48, 49) 3. The principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. The elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in the light of the subject-matter and purpose of the European Union act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account. Such an approach must also prevail mutatis mutandis in an examination of the compliance with the principle of equal treatment of national measures implementing EU law. (see paras 50, 52, 53) 4. The principle of equal treatment and non-discrimination laid down in particular in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union does not preclude the Member States, when introducing national support schemes for cogeneration and electricity production from renewable energy sources, such as those referred to in Article 7 of Directive 2004/8 on the promotion of cogeneration based on a useful heat demand in the internal energy market and amending Directive 92/42 and Article 4 of Directive 2001/77 on the promotion of electricity produced from renewable energy sources in the internal electricity market from providing for an enhanced support measure capable of benefiting all cogeneration plants principally using biomass with the exclusion of cogeneration plants principally using wood and/or wood waste. In the light, in particular, of the objectives pursued by Directives 2001/77 and 2004/8 and the aims of the European Union in the field of the environment, and of the broad margin of discretion allowed to the Member States by those directives for the adoption and implementation of support schemes intended to promote cogeneration and electricity production from renewable energy sources, and having regard to the individual characteristics of the various categories of biomass capable of use in a cogeneration process, those categories must not be regarded in the context of such support schemes as being in a comparable situation for the purposes of the possible application of the principle of equal treatment, observance of which is ensured by EU law. In particular, even at the level of the renewable nature of the resource, and hence from the point of view of its availability, as also from the point of view of sustainable development, prudent and rational utilisation of natural resources, and security of supply, wood, which is a resource whose renewal requires a long period, may be distinguished from agricultural products or household and industrial waste, whose production takes place in a much shorter space of time. (see paras 66, 67, 74, 80, 82, operative part 2)