Case C‑195/12

Industrie du bois de Vielsalm & Cie (IBV) SA

v

Région wallonne

(Request for a preliminary ruling from the Cour constitutionnelle (Belgium))

‛Directive 2004/8/EC — Scope — Cogeneration and high efficiency cogeneration — Article 7 — Regional support scheme providing for the grant of ‘green certificates’ to cogeneration plants — Grant of a larger number of green certificates to cogeneration plants processing principally forms of biomass other than wood or wood waste — Principle of equality and non-discrimination — Articles 20 and 21 of the Charter of Fundamental Rights of the European Union’

Summary — Judgment of the Court (Fourth Chamber), 26 September 2013

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

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)

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)

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)