Case C‑549/15

E.ON Biofor Sverige AB

v

Statens energimyndighet

(Request for a preliminary ruling

from the Förvaltningsrätten i Linköping)

(Reference for a preliminary ruling — Promotion of energy from renewable sources — Biofuels for transport — Directive 2009/28/EC — Article 18(1) — ‘Mass balance’ system to ensure that biogas meets the prescribed sustainability criteria — Validity — Articles 34 and 114 TFEU — National rules requiring the mass balance to be achieved within a location with a clear boundary — Practice of the competent national authority to accept that that condition may be satisfied where sustainable biogas is transported using the national gas network — Order of that authority stating that that condition cannot be satisfied where sustainable biogas is imported from other Member States via interconnected national gas networks — Free movement of goods)

Summary — Judgment of the Court (Second Chamber), 22 June 2017

Free movement of goods—Quantitative restrictions—Measures having equivalent effect—Mass balance system within the meaning of Article 18(1) of Directive 2009/28—National rules requiring the mass balance to be achieved within a location with a clear boundary—Order of the competent national authority excluding achievement of mass balance with regard to sustainable biogas transported across borders via interconnection national gas networks—Not permissible

Environment—Promotion of the use of energy from renewable sources—Directive 2009/28—Verification of observance of the sustainability criteria for biofuels and bioliquids—No obligation on the Member States to authorise imports of sustainable biogas via their interconnected national gas networks

See the text of the decision. (see paras 30-31, 49)

Article 18(1) of 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 must be interpreted as meaning that it is not intended to place an obligation on the Member States to authorise imports, via their interconnected national gas networks, of biogas satisfying the sustainability criteria set out in Article 17 of that directive and intended for use as biofuel. Firstly, Article 18(1) of Directive 2009/28, which has the sole aim of instituting verification mechanisms intended to ensure the correct application of Article 17 of that directive, cannot, having regard to the link thus existing between those two provisions, any more than Article 17, be interpreted as having the aim of unconditionally requiring the Member States to authorise imports of sustainable biogas from other Member States. Secondly, and as the Advocate General noted, in essence, in point 57 of his Opinion, having regard to the generality of the terms in which the criteria listed in points (a) to (c) of Article 18(1) of Directive 2009/28 are stated, the view cannot be taken either that that provision fully harmonises the verification method connected with the mass balance system. On the contrary, it follows from those points that the Member States retain a discretion and latitude when they are required to determine, more precisely, the specific conditions which the mass balance systems to be put into place by the economic operators must fulfil. Accordingly, nor is such a provision, viewed thusly, such as to lead, automatically, to a guarantee of free movement of sustainable biogas over a cross-border gas network once that biogas has lawfully been designated sustainable in the Member State of production. (see paras 39, 40, 42, operative part 1)

There is nothing to support the view that, by having decided to favour, in the pursuit of the objective set in Article 114(3) TFEU of ensuring a high level of protection of the environment and for the purposes more specifically set out in recital 76 of Directive 2009/28, the installation of a verification system for sustainability criteria which is both integrated and effective and intended to ensure that there is a physical link between the production of sustainable biofuels and their consumption in the EU, while at the same time more effectively influencing the conduct of the actors on the market, the EU legislature exceeded its wide discretion, referred to in paragraph 50 of this judgment, or failed to have regard to the requirements flowing from the principle of proportionality. As the Advocate General noted in point 70 of his Opinion, the specific area in which the EU legislature was called upon in the present situation to legislate clearly requires it to make choices which were at once political, scientific and economic and in so doing to make clearly complex assessments, particularly of economic and technical factors. In this situation, the EU legislature was entitled to take the view, without exceeding its discretion, that, having regard, firstly, to the form of traceability which it institutes and the conditions intended to ensure the effectiveness and integrated nature which accompanies it in accordance with the provisions of Article 18 of Directive 2009/28 and, secondly, to the influence which, in so doing, it seeks to exercise on the prices of sustainable biofuels and on the actors on the market, while reducing the risk of fraud, the verification system using the mass balance technique appeared suitable for achieving a high level of protection of the environment. Similarly, the EU legislature was entitled to take the view, in that regard, without exceeding its discretion, that such a verification system was necessary and that, in particular, there was no alternative measure which would enable the legitimate objectives pursued in these circumstances to be achieved as effectively while subjecting the economic operators to less stringent economic and administrative constraints. For the same reasons, the restriction on the free movement of goods referred to in paragraph 61 of this judgment which is thus, in compliance with the principle of proportionality, justified on grounds of the protection of the environment, cannot, as follows from the case-law referred to in paragraph 46 of this judgment, be regarded as infringing the provisions of Article 34 TFEU (see, by analogy, judgment of 14 December 2004, Swedish Match, C‑210/03, EU:C:2004:802, paragraph 61). (see paras 66-70)

See the text of the decision. (see para. 72)

See the text of the decision. (see paras 76-78)