Request for a preliminary ruling from the Tribunal Administrativo e Fiscal de Braga, Juízo Administrativo Comum (Portugal) lodged on 28 September 2021 — Vapo Atlantic, S.A. v Entidade Nacional para o Sector Energético, E.P.E. (ENSE) and Others

(Case C-604/21)

(2022/C 11/23)

Language of the case: Portuguese

Referring court

Tribunal Administrativo e Fiscal de Braga, Juízo Administrativo Comum

Parties to the main proceedings

Applicant: Vapo Atlantic, S.A.

Defendant: Entidade Nacional para o Sector Energético, E.P.E. (ENSE)

Other parties to the proceedings: Fundo Ambiental, Fundo de Eficiência Energética (FEE)

Questions referred

1. Must Article 1(3) of Directive 98/34/EC (1) be interpreted as meaning that, for the purposes of Article 8(1) of that directive, the concept of ‘other requirement’ includes the definition of the percentage of biofuels which, in accordance with Article 7a of Directive 98/70/EC, (2) introduced by Directive 2009/30/EC, (3) and in keeping with the target set out in Article 3(4) of Directive 2009/28/EC, (4) a given economic operator is obliged to incorporate into the fuels it releases for consumption, as in the case of the definition given in the national legislation at issue?

2. Must Article 8(1) of Directive 98/34/EC, in particular the expression ‘except where [the draft technical regulation] merely transposes the full text of an international or European standard’, be interpreted as meaning that it excludes a provision of national law which defines biofuel incorporation percentages, in accordance with Article 7a(2) of Directive 98/70/EC, introduced by Directive 2009/30/EC, and in keeping with the target set out in Article 3(4) of Directive 2009/28/EC?

3. Must the second subparagraph of Article 4(1) of Directive 2009/30/EC and Article 4(1) of Directive (EU) 2015/1513 (5) be interpreted as meaning that the provisions in question are safeguard clauses provided for in binding Community acts within the meaning of the third indent of Article 10(1) of Directive 98/34/EC?

4. If the answer to this question is not unnecessary in the light of the answers to the foregoing questions, must Article 8(1) of Directive 98/34/EC be interpreted as meaning that a national provision such as that at issue in this dispute, which defines biofuel incorporation percentages, in transposition of Article 7a(2) of Directive 98/70/EC, introduced by Directive 2009/30/EC, may not be enforced as against an economic operator?

(1) Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37).

(2) Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the quality of petrol and diesel fuels and amending Council Directive 93/12/EEC (OJ 1998 L 350, p. 58).

(3) Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 98/70/EC as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions and amending Council Directive 1999/32/EC as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12/EEC (OJ 2009 L 140, p. 88).

(4) 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 (OJ 2009 L 140, p. 16).

(5) Directive (EU) 2015/1513 of the European Parliament and of the Council of 9 September 2015 amending Directive 98/70/EC relating to the quality of petrol and diesel fuels and amending Directive 2009/28/EC on the promotion of the use of energy from renewable sources (OJ 2015 L 239, p. 1).