OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 16 May 2018 ( 1 )

Case C‑242/17

Legatoria Editoriale Giovanni Olivotto (LEGO) SpA

v

Gestore dei servizi energetici (GSE) SpA,

Ministero dell’Ambiente e della Tutela del Territorio e del Mare,

Ministero dello Sviluppo Economico,

Ministero delle Politiche Agricole e Forestali,

interveners:

ED & F Man Liquid Products Italia Srl,

Unigrà Srl,

Movendi Srl

(Request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy))

(Preliminary ruling — Environment — Promotion of the use of energy from renewable sources — Guarantee of the sustainability of bioliquids — Mass balance method — National sustainability certification schemes — Voluntary sustainability certification schemes approved by the Commission — Operators required to submit sustainability certificates)

1. In the judgment in E.ON Biofor Sverige, ( 2 ) the Court ruled on the effects of certain measures adopted by Sweden for verifying the sustainability of biogas produced from biomass, where that gas was the subject of intra-Community trade (it moved via gas pipelines through a number of Member States).

2. This reference for a preliminary ruling is concerned not with biogas but with sustainable bioliquids (to be specific, palm oil originating from Indonesia and released for free circulation in the EU). The former is obtained from biomass for use in transport whilst the latter also come from biomass but are for energy purposes other than transport, including electricity generation and heating and cooling.

3. The dispute calls for an examination of the relationship between two kinds of sustainability certification scheme for bioliquids: national schemes, on the one hand, and voluntary schemes which the Commission approves, on the other. In particular, the Court is required to interpret the scope of Article 18(7) of Directive 2009/28/EC, ( 3 ) in conjunction with Commission Implementing Decision 2011/438/EU. ( 4 )

4. On that basis, the judgment will have to clarify whether the application of one or other (national or voluntary) scheme for certifying the sustainability of bioliquids is alternative and exclusive or merely supplementary.

5. The reply will make it possible to dispel the referring court’s doubts as to whether a Member State may require economic operators who have signed up to a voluntary scheme to comply with additional conditions.

I. Legal framework

A. EU law

1. Directive 2009/28

6. According to recital 76: ‘Sustainability criteria will be effective only if they lead to changes in the behaviour of market actors. Those changes will occur only if biofuels and bioliquids meeting those criteria command a price premium compared to those that do not. According to the mass balance method of verifying compliance, there is a physical link between the production of biofuels and bioliquids meeting the sustainability criteria and the consumption of biofuels and bioliquids in the Community, providing an appropriate balance between supply and demand and ensuring a price premium that is greater than in systems where there is no such link. To ensure that biofuels and bioliquids meeting the sustainability criteria can be sold at a higher price, the mass balance method should therefore be used to verify compliance. This should maintain the integrity of the system while at the same time avoiding the imposition of an unreasonable burden on industry. Other verification methods should, however, be reviewed.’

7. Article 2(h) and (i) contains the following definitions: ‘(h) “bioliquids” means liquid fuel for energy purposes other than for transport, including electricity and heating and cooling, produced from biomass; (i) “biofuels” means liquid or gaseous fuel for transport produced from biomass.’

8. Recital 65 reads: ‘Biofuel production should be sustainable. Biofuels used for compliance with the targets laid down in this Directive, and those that benefit from national support schemes, should therefore be required to fulfil sustainability criteria.’

9. Article 17 sets out the sustainability criteria in the following terms: ‘1. Irrespective of whether the raw materials were cultivated inside or outside the territory of the Community, energy from biofuels and bioliquids shall be taken into account for the purposes referred to in points (a), (b) and (c) only if they fulfil the sustainability criteria set out in paragraphs 2 to 6: (a) measuring compliance with the requirements of this Directive concerning national targets; (b) measuring compliance with renewable energy obligations; (c) eligibility for financial support for the consumption of biofuels and bioliquids. … 2. The greenhouse gas emission saving from the use of biofuels and bioliquids taken into account for the purposes referred to in points (a), (b) and (c) of paragraph 1 shall be at least 35%. … 3. Biofuels and bioliquids taken into account for the purposes referred to in points (a), (b) and (c) of paragraph 1 shall not be made from raw material obtained from land with high biodiversity value … … 4. Biofuels and bioliquids taken into account for the purposes referred to in points (a), (b) and (c) of paragraph 1 shall not be made from raw material obtained from land with high carbon stock … … 5. Biofuels and bioliquids taken into account for the purposes referred to in points (a), (b) and (c) of paragraph 1 shall not be made from raw material obtained from land that was peatland in January 2008 … 6. Agricultural raw materials cultivated in the Community and used for the production of biofuels and bioliquids taken into account for the purposes referred to in points (a), (b) and (c) of paragraph 1 shall be obtained in accordance with the requirements and standards under the provisions referred to under the heading ‘Environment’ in part A and in point 9 of Annex II to Council Regulation (EC) No 73/2009 of 19 January 2009 … … 8. For the purposes referred to in points (a), (b) and (c) of paragraph 1, Member States shall not refuse to take into account, on other sustainability grounds, biofuels and bioliquids obtained in compliance with this Article. …’

10. Article 18 (‘Verification of compliance with the sustainability criteria for biofuels and bioliquids’) states in paragraphs 1 to 7: ‘1. Where biofuels and bioliquids are to be taken into account for the purposes referred to in points (a), (b) and (c) of Article 17(1), Member States shall require economic operators to show that the sustainability criteria set out in Article 17(2) to (5) have been fulfilled. For that purpose they shall require economic operators to use a mass balance system which: (a) allows consignments of raw material or biofuel with differing sustainability characteristics to be mixed; (b) requires information about the sustainability characteristics and sizes of the consignments referred to in point (a) to remain assigned to the mixture; and (c) provides for the sum of all consignments withdrawn from the mixture to be described as having the same sustainability characteristics, in the same quantities, as the sum of all consignments added to the mixture. 2. The Commission shall report to the European Parliament and the Council in 2010 and 2012 on the operation of the mass balance verification method described in paragraph 1 and on the potential for allowing for other verification methods in relation to some or all types of raw material, biofuel or bioliquids … 3. Member States shall take measures to ensure that economic operators submit reliable information and make available to the Member State, on request, the data that were used to develop the information. Member States shall require economic operators to arrange for an adequate standard of independent auditing of the information submitted, and to provide evidence that this has been done. The auditing shall verify that the systems used by economic operators are accurate, reliable and protected against fraud. It shall evaluate the frequency and methodology of sampling and the robustness of the data. The information referred to in the first subparagraph shall include in particular information on compliance with the sustainability criteria set out in Article 17(2) to (5), appropriate and relevant information on measures taken for soil, water and air protection, the restoration of degraded land, the avoidance of excessive water consumption in areas where water is scarce and appropriate and relevant information concerning measures taken in order to take into account the issues referred to in the second subparagraph of Article 17(7). … The obligations laid down in this paragraph shall apply whether the biofuels or bioliquids are produced within the Community or imported. … 4. The Community shall endeavour to conclude bilateral or multilateral agreements with third countries containing provisions on sustainability criteria that correspond to those of this Directive. Where the Community has concluded agreements containing provisions relating to matters covered by the sustainability criteria set out in Article 17(2) to (5), the Commission may decide that those agreements demonstrate that biofuels and bioliquids produced from raw materials cultivated in those countries comply with the sustainability criteria in question … The Commission may decide that voluntary national or international schemes setting standards for the production of biomass products contain accurate data for the purposes of Article 17(2) or demonstrate that consignments of biofuel comply with the sustainability criteria set out in Article 17(3) to (5) … … 5. The Commission shall adopt decisions under paragraph 4 only if the agreement or scheme in question meets adequate standards of reliability, transparency and independent auditing … 6. Decisions under paragraph 4 shall be adopted in accordance with the advisory procedure referred to in Article 25(3). Such decisions shall be valid for a period of no more than five years. 7. When an economic operator provides proof or data obtained in accordance with an agreement or scheme that has been the subject of a decision pursuant to paragraph 4, to the extent covered by that decision, a Member State shall not require the supplier to provide further evidence of compliance with the sustainability criteria set out in Article 17(2) to (5) nor information on measures referred to in the second subparagraph of paragraph 3 of this Article. …’

2. Implementing Decision 2011/438

11. Article 1 provides: ‘The voluntary scheme “International Sustainability and Carbon Certification scheme” for which the request for recognition was submitted to the Commission on 18 March 2011 demonstrates that consignments of biofuels comply with the sustainability criteria as laid down in Article 17(3)(a), (b) and (c) and Article 17(4) and (5) of Directive 2009/28/EC and Article 7b(3)(a), (b) and (c) and Article 7b(4) and (5) of Directive 98/70/EC. The scheme also contains accurate data for purposes of Article 17(2) of Directive 2009/28/EC and Article 7b(2) of Directive 98/70/EC. Furthermore, it may be used for demonstrating compliance with Article 18(1) of Directive 2009/28/EC and Article 7c(1) of Directive 98/70/EC.’

12. Article 2(1) states: ‘The Decision is valid for a period of 5 years after it enters into force.’ That period ended on 9 August 2016.

3. Implementing Decision (EU) 2016/1361 ( 5 )

13. By means of Implementing Decision 2016/1361, the Commission again recognised the ‘International Sustainability and Carbon Certification system’ as a scheme for demonstrating compliance with the sustainability criteria under Directive 2009/28 for a period of 5 years.

14. Article 1 provides: ‘The “International Sustainability and Carbon Certification system” (hereinafter “the scheme”), submitted for recognition to the Commission on 23 June 2016, demonstrates that consignments of biofuels and bioliquids produced in accordance with the standards for the production of biofuels and bioliquids set in the scheme comply with the sustainability criteria as laid down in Article 7b(3), (4) and (5) of Directive 98/70/EC and Article 17(3), (4) and (5) of Directive 2009/28/EC. …’

15. Implementing Decision 2016/1361 entered into force on 11 August 2016.

B. National law

1. Legislative Decree No 28 of 2011 ( 6 )

16. According to Article 38: ‘From 1 January 2012, biofuels … and bioliquids … may be counted towards the national targets and may access the support measures … only on condition that they comply with the sustainability criteria set out in the measure implementing Directive 2009/30/EC.’

2. Legislative Decree No 66 of 2005 ( 7 )

17. Pursuant to Article 2(1)(i)f, as amended by Legislative Decree No 55/2011 ( 8 ), an ‘economic operator’ is: ‘Any natural or legal person established in the Community or in a third country who offers or makes available to third parties, in return for payment or free of charge, biofuels destined for the Community market, or who offers or makes available to third parties, in return for payment or free of charge, intermediate products, mixtures or waste for the production of biofuel destined for the Community market.’

18. Article 7b of that Legislative Decree reproduces the sustainability criteria laid down in the EU legislation and, in Article 7c, establishes a national sustainability certification scheme for biofuels (Sistema Nazionale di certificazione della sostenibilità dei biocarburanti) to which everyone involved in the production chain must sign up, unless they use an agreement or a voluntary certification scheme of the kind provided for in Article 7c(4) of Directive 98/70/EC, introduced by Article 1 of Directive 2009/30/EC.

3. Decree of 23 January 2012 ( 9 )

19. Article 2 contains the following definitions: ‘… 2. ... i) Sustainability certificate: declaration drawn up by the last operator in the supply chain, on the basis of self-certification … containing the information needed to guarantee the sustainability of the consignment of biofuel or bioliquid; … p) Supply chain or chain of custody: methodology that enables a connection to be established between the information or claims concerning the raw materials or intermediate products and the claims relating to the finished products. That methodology covers all stages from the production of the raw materials to the point at which the biofuel or bioliquid is supplied to the consumer; … 3. The definition of economic operator … shall include: a) any natural or legal person established in the European Union, or in a third country, who offers or makes available to third parties, for a consideration or free of charge, biofuels and bioliquids destined for the [EU] market …, as well as b) any natural or legal person established in the European Union, or in a third country, who offers or makes available to third parties, for a consideration or free of charge, raw materials, intermediate products, waste, by-products or their mixture for the manufacture of biofuels and bioliquids destined for the [EU] market.’

20. Article 8 provides: ‘1. Within the limits of those elements covered by a voluntary scheme that is the subject of a decision within the meaning of Article 7c(4) of Directive 98/70/EC, inserted by Article 1 of Directive 2009/30/EC, economic operators who sign up to such voluntary schemes shall demonstrate the reliability of the information or claims transmitted to the next economic operator in the supply chain, or to the supplier or user, by producing the evidence or data laid down under those schemes to accompany the consignment. The evidence or data shall be self-certified …; … 4. If the voluntary schemes under paragraph 1 and the agreements under paragraph 2 do not cover verification of all of the criteria for sustainability and use of the mass balance, economic operators in the supply chain who sign up to them must in any event supplement verification, in so far as it is not mentioned in the voluntary schemes or agreements, through the national certification scheme.’

21. Article 12 states: ‘1. For the purposes of the present decree, in derogation from the provisions of Article 8(1), economic operators in the bioliquid supply chain may sign up to voluntary schemes that are the subject of a decision under the second subparagraph of Article 7c(4) of Directive 98/70/EC, applicable to biofuels, provided that they comply with the conditions set out in paragraph 2. 2. Operators in the bioliquid supply chain referred to in paragraph (1) must record in the declaration or certification accompanying the consignments throughout the whole of the supply chain the information referred to in Article 7(5), (6), (7) and (8), with the following exceptions ...’

II. Main proceedings and questions referred for a preliminary ruling

22. Legatoria Editoriale Giovanni Olivotto SpA (‘LEGO’) operates a printing office in Lavis (Trento province, Trentino Alto Adigio region, Italy). On its premises, it built a thermal energy plant with a capacity of 0.840 megawatts which it fuels using a bioliquid; to be specific, crude vegetable palm oil.

23. The undertaking which dealt with the construction of that plant was Movendi Srl, which also acted as intermediary (trader) for the purchase of the bioliquid needed to fuel the thermal energy plant.

24. On 24 November 2010, LEGO asked the public enterprise Gestore dei servizi energetici SpA (‘GSE’) to grant it the status of a ‘plant operating on renewable energy sources’. ( 10 ) That status, once granted, enabled it to access the green certificates (GCs) incentive scheme during the three-year period from 2012 to 2014 in respect of a total of 14698 GCs, the value of which came to EUR 1610 421.58.

25. Movendi did not physically have in its possession the product consignments, which were supplied directly to LEGO by ED & F Man Liquid Products Italia Srl and Unigrà Srl (jointly ‘the supplier companies’). At the hearing, those companies stated that the bioliquid supplied to LEGO was crude palm oil imported from Indonesia but which had come from France, meaning that it constituted goods which had already been released for free circulation in the customs territory of the Union.

26. On 19 June 2014, GSE asked LEGO to send it the certificates required under Italian law. LEGO sent it a number of documents on 26 June 2014.

27. By decision of 29 September 2014, GSE disqualified LEGO from the incentive scheme on the grounds that it had not satisfied the eligibility criteria for the support scheme, and ordered the recovery of all the green certificates granted.

28. That decision was based, in particular, on the following arguments: — although operating as a trader and thus not taking possession of the bioliquid used to power the plant, Movendi had to be regarded as an ‘economic operator’ within the meaning of the Decree of 23 January 2012, and was therefore, in turn, required to issue the sustainability certificate for every consignment of bioliquid, as the certificates issued by the supplier companies were not sufficient; — the sustainability certificates indicated a date subsequent to the date on which transportation took place, whereas, pursuant to the Decree of 23 January 2012, they were supposed ‘to accompany each consignment’.

29. LEGO challenged the decision of GSE before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), which dismissed its claims by judgment of 29 January 2016. LEGO appealed at last instance against that judgment before the Consiglio di Stato (Council of State, Italy).

30. In support of its appeal, LEGO argues: — Movendi cannot be categorised as an ‘economic operator’ within the meaning of the Decree of 23 January 2012, since it operates merely as an intermediary in order to obtain, on behalf of LEGO, the best offer for bioliquid available on the market. — Movendi does not even form part of the supply chain because it did not physically handle the bioliquid consignments which were delivered directly to LEGO by the supplier companies. — The supplier companies signed up to the voluntary (International Sustainability and Carbon Certification) scheme (‘the ISCC scheme’), which is recognised by Implementing Decision 2011/438, and they issue a sustainability certificate for every product consignment, thereby guaranteeing full traceability of the bioliquid. — According to the ISCC scheme, a trader which does not have the product physically at its disposal is not required to become accredited and issue certificates of environmental sustainability. It is contrary to Article 18(7) of Directive 2009/28 to impose further requirements and burdens on an economic operator which has acted in compliance with the rules laid down by a certification and control scheme recognised by a decision of the Commission. — The alleged ‘supplementary’ function (which, according to the national court of first instance, is performed by the national certification scheme) is precluded by the very wording of Implementing Decision 2011/438. — The judgment under appeal is also unlawful in so far as it considers it to be mandatory that the sustainability certificates should include the same date as the date on which the bioliquid consignments were transported.

31. GSE contested LEGO’s appeal before the referring court, based on the following arguments: — Intermediaries come within the definition of ‘economic operator’ in Article 2 of the Decree of 23 January 2012 because they are part of the supply chain. They are therefore subject to the obligations to verify and monitor sustainability of the product in order to guarantee its full traceability and prevent alterations or forgeries which are not necessarily connected with the product’s physical availability. — The sustainability certificates issued by the supplier companies are not sufficient because they cover merely one stage in the supply chain. According to Article 8(4) of the Decree of 23 January 2012, where the voluntary accreditation and certification schemes do not provide full verification of the sustainability criteria, operators in the chain must supplement them with the national certification scheme. That provision is not incompatible with the EU legislation, which merely lays down minimum limits for the Member States. — The sustainability certificate which, pursuant to Article 7(8) of the Decree of 23 January 2012, has to ‘accompany’ every consignment of the product, must indicate the same date as the date of delivery. The national legislation takes precedence over the voluntary scheme, as it guarantees more extensive verification.

32. Against that background, the Consiglio di Stato (Council of State) has referred the following two questions to the Court for a preliminary ruling: ‘(1) Does EU law, and more specifically Article 18(7) of Directive 2009/28/EC, in conjunction with Commission Decision 2011/438/EU of 19 July 2011, preclude national provisions, such as the Ministerial Decree of 23 January 2012, and in particular Articles 8 and 12 thereof, which impose specific requirements that are both different from and more extensive than the requirements which are satisfied by signing up to a voluntary scheme which is the subject of a decision of the European Commission adopted in accordance with Article 18(4) of Directive 2009/28? (2) If the answer to Question [1] is in the negative, must economic operators which are involved in the product supply chain, even though their role is merely that of a trader or intermediary and they do not possess physical availability of the product in question, be held to be subject to the provisions of EU law cited in Question [1]?’

33. During the written stage of the proceedings, observations were lodged by LEGO, GSE, ED & F Man Liquid Products Italia, the Italian Government and the Commission. All those parties also took part in the hearing which was held on 28 February 2018.

III. Analysis of the questions referred for a preliminary ruling

34. The dispute raises the issue of the relationship between national schemes for certifying the sustainability of bioliquids (Article 18(3) of Directive 2009/28) and voluntary national or international schemes recognised by the Commission under Article 18(4) and (5) of Directive 2009/28.

35. The referring court considers that, in order to give judgment at last instance on the appeal before it, it is essential to determine whether there is a conflict between the EU legislation and the national implementing legislation.

36. The referring court’s uncertainties concern, in particular, Articles 8 and 12 of the Decree of 23 January 2012. Although those provisions recognise the value of signing up to a voluntary sustainability certification scheme (provided that, logically, it has been the subject of a decision of the Commission), they also require operators who sign up to such a scheme to comply with a twofold — and disputed — obligation: — first, operators must ‘in any event supplement verification, in so far as it is not mentioned in the voluntary schemes or agreements, through the national certification scheme’; — second, operators must ‘record in the declaration or certification accompanying the consignments throughout the whole of the supply chain the information referred to in Article 7(5), (6), (7) and (8)’.

37. Before embarking on a specific analysis of the two questions referred for a preliminary ruling, I shall make a number of remarks on monitoring the sustainability of bioliquids, which reiterate or supplement the remarks I set out in relation to biogases in my Opinion in E.ON Biofor Sverige. ( 11 )

A. Preliminary remarks

38. Article 17(2) to (5) of Directive 2009/28 sets out the criteria which a bioliquid, such as palm oil, must satisfy in order to be classified as sustainable. That classification or ‘green label’ is a sine qua non in order for the bioliquid to be taken into account for the purposes of: (a) evaluating compliance by the Member States with their obligation to reduce greenhouse gas emissions; (b) evaluating compliance with obligations regarding the use of renewable energy; and (c) eligibility for the various types of assistance created by Member States to promote the consumption of renewable energy.

39. The rationale for the sustainability criteria in Article 17(2) to (5) of Directive 2009/28 is to prevent areas having a high ecological value ( 12 ) from being used for the production of biomass to make bioliquids. Directive 2009/28 carried out an exhaustive harmonisation of the sustainability criteria for bioliquids, meaning that the Member States may not set other, additional criteria, in accordance with Article 17(8), or cease applying any of those laid down in Article 17 of Directive 2009/28. ( 13 )

40. For the purpose of establishing whether a bioliquid placed on the market fulfils those sustainability criteria, Directive 2009/28 chose the mass balance (‘MB’) method, rejecting the other possible methods. ( 14 ) The MB method allows the mixing of different bioliquids for the purposes of placing those bioliquids on the market but it guarantees their traceability from source to consumption. The seller must hold documents certifying that an amount of bioliquid identical to that withdrawn from the distribution network was injected into that network after being obtained in accordance with the sustainability criteria laid down in Article 17(2) to (5) of Directive 2009/28.

41. Unlike the sustainability criteria for bioliquids, which were harmonised exhaustively by Directive 2009/28, the application of the MB method was only partially harmonised ( 15 ) by Article 18(1) of Directive 2009/28, which, in any event, stipulates the following three conditions for use of the MB method: — it must allow consignments of raw material or biofuel with differing sustainability characteristics to be mixed; — it must require information about the sustainability characteristics and sizes of the consignments of biofuel to remain assigned to the mixture; — it must provide for the sum of all consignments withdrawn from the mixture to be described as having the same sustainability characteristics, in the same quantities, as the sum of all consignments added to the mixture.

42. Based on that partial harmonisation, Directive 2009/28 permits the implementation of the MB method by means of one of the following: — a national scheme established by the competent authority of each Member State, in accordance with Article 18(3) of Directive 2009/28; — voluntary national or international schemes recognised by the Commission, in accordance with the conditions laid down in Article 18(4) and (5) of Directive 2009/28; — an international scheme provided for in a bilateral or multilateral agreement concluded by the Union with third countries and which the Commission has recognised for the purpose.

43. At present, the EU has not concluded any agreements with third countries and the MB method is applied either through the national schemes (like the Italian scheme in this case) or through the voluntary schemes which the Commission has approved to date, such as the ISCC scheme. ( 16 )

44. It is important to note that the second subparagraph of Article 18(4) of Directive 2009/28 referred only to the possibility of using voluntary certification schemes in relation to biofuels but not to the possibility of using them to demonstrate fulfilment of the sustainability criteria by bioliquids. It was necessary to await the adoption of Directive (EU) 2015/1513, ( 17 ) in force since 15 October 2015, for the amendment of the second subparagraph of Article 18(4) of Directive 2009/28 to include also the possibility of certifying the sustainability of bioliquids through voluntary schemes approved by the Commission. ( 18 )

B. Replies to the questions referred for a preliminary ruling: relationship between the Italian certification scheme for bioliquids and the voluntary ISCC scheme

45. The referring court asks whether Article 18(7) of Directive 2009/28, in conjunction with Implementing Decision 2011/438, precludes national legislation, like the Decree of 23 January 2012, which imposes on economic operators specific obligations that are both different from and more extensive than those of a voluntary certification scheme for the sustainability of bioliquids, approved by the Commission under Article 18(4) of Directive 2009/28.

46. In order to answer that question, it is necessary to determine, in turn: — whether Implementing Decision 2011/438 is applicable to the dispute, directly or as a result of a reference in national legislation; — the legal position of operators who use the voluntary ISCC scheme; — whether national legislation, such as the Italian legislation, may impose conditions additional to those imposed by a voluntary scheme; — whether, if they are permitted, those national conditions are compatible with the prohibition in Article 34 TFEU.

1. Direct disapplication of Implementing Decision 2011/438 and reference to that decision in national legislation

47. The national court takes the view that Implementing Decision 2011/438 is applicable to the facts of the main proceedings. However, that assertion should be qualified.

48. Implementing Decision 2011/438 was adopted pursuant to Article 18(4) of Directive 2009/28, which permits the Commission to decide that national or international voluntary schemes demonstrate that consignments of biofuel fulfil the sustainability criteria laid down in Article 17(3) to (5) of Directive 2009/28, or that they contain accurate data for the purposes of Article 17(2) of that directive (to measure the greenhouse gas emission saving).

49. According to Article 18(6) of Directive 2009/28, decisions recognising voluntary schemes, adopted by the Commission, are to be valid for a period of no more than 5 years.

50. The ISCC scheme was submitted to the Commission on 18 March 2011 for recognition as a global voluntary scheme for a wide variety of biofuels. ( 19 ) The Commission conducted an assessment of the scheme, which had a favourable outcome, and finally recognised the scheme in Implementing Decision 2011/438. ( 20 )

51. In accordance with Article 1 of Implementing Decision 2011/438, the voluntary ISCC scheme demonstrates that consignments of biofuels comply with the sustainability criteria as laid down in Article 17(2) to (5), and, furthermore, it may be used for demonstrating compliance with Article 18(1) of Directive 2009/28.

52. Implementing Decision 2011/438 recognises the ISCC scheme solely for the purposes of establishing the sustainability of biofuels but not of bioliquids. In 2011, the second subparagraph of Article 18(4) of Directive 2009/28 provided for that possibility alone. Owing to the differences between biofuels and bioliquids, ( 21 ) that Decision — whose wording is clear in this regard — cannot be interpreted as covering both categories.

53. It became possible to certify the sustainability of bioliquids by means of voluntary schemes only after the amendment of the second subparagraph of Article 18(4) of Directive 2009/28 as a result of the adoption of Directive 2015/1513, which entered into force on 15 October 2015.

54. LEGO benefited from the green certificate incentive scheme during the three-year period from 2012 to 2014, ( 22 ) by using a bioliquid (palm oil), not a biofuel, to fuel its thermal energy plant. Accordingly, it could not rely on Implementing Decision 2011/438, which, I repeat, only covered the ISCC scheme as a voluntary certification scheme for the sustainability of biofuels and not bioliquids.

55. Although the second subparagraph of Article 18(4) of Directive 2009/28 referred only to the certification of biofuels (and not bioliquids) by means of voluntary schemes, the Communication from the Commission on voluntary schemes and default values in the EU biofuels and bioliquids sustainability scheme encouraged the Member States to extend the use of such schemes for certifying biofuels to include bioliquids as well. ( 23 )

56. Article 12 of the Decree of 23 January 2012 ( 24 ) could be seen as a response to that encouragement from the Commission. The Italian Government confirmed at the hearing that, under that article, economic operators were permitted to certify the sustainability of bioliquids through the use of voluntary schemes approved by the Commission in relation to biofuels alone.

57. The Court’s jurisdiction in the context of a reference for a preliminary ruling is confined to the interpretation of provisions of EU law but not of the national law of a Member State. It will therefore be for the referring court to determine whether, at the material time, the Decree of 23 January 2012 actually covered the use for bioliquids of voluntary certification schemes (like the ISCC) which the Commission had approved for biofuels.

58. On that basis, I shall examine the application of EU law in relation to the two options available to the referring court.

2. Application of the ISCC scheme as a result of a reference in national legislation

59. After 11 August 2016, the date of entry into force of Implementing Decision 2016/1361, the Commission continued recognising the voluntary ISCC scheme as a scheme for certifying the sustainability of biofuels while also expanding it, for the first time, to include bioliquids. Since, ratione temporis, these proceedings are concerned solely with the withdrawal of the incentives corresponding to the three-year period from 2012 to 2014, Implementing Decision 2016/1361 can have no effect on their outcome.

60. However, as I pointed out above, Article 12 of the Decree of 23 January 2012 may have covered the use of the voluntary ISCC scheme for bioliquids. If that was the case, the undertakings which supplied the palm oil and LEGO could lawfully have signed up to that voluntary scheme.

61. In that case, it would be necessary to determine whether Article 18(7) of Directive 2009/28 permits or precludes the use (in addition or in the alternative) of the Italian national certification system by operators who use a voluntary certification scheme, like the ISCC. The Italian Government contends that that provision of the directive permits the imposition of additional requirements for checking sustainability, such as, for example, those laid down in the Italian certification scheme.

62. Unqualified acceptance of the Italian Government’s position would involve the general use (that is, in all cases) of the national scheme, provided that it was more ‘strict’ than the voluntary scheme. However, that outcome would reduce the incentive for economic operators to sign up to voluntary schemes, the aim of which is to prevent the imposition of unreasonable burdens on industry through the creation of efficient solutions for proving compliance with the sustainability criteria for bioliquids. ( 25 )

63. Article 8(4) of the Decree of 23 January 2012 permits the imposition of additional conditions on an economic operator who has signed up to a voluntary scheme where that scheme ‘[does] not cover verification of all of the criteria for sustainability and use of the mass balance’. The situation referred to in that provision should, in principle, occur rarely because logic dictates that, pursuant to Article 18(4) of Directive 2009/28, the Commission will generally approve voluntary schemes which use the MB method and which certify compliance with all the sustainability criteria. ( 26 )

64. However, according to the Commission, ( 27 ) it is possible to approve voluntary schemes which, in addition to using the MB method, allow certification of only some of the sustainability criteria for bioliquids. In those circumstances, there is nothing to preclude the supplementary application of the national certification scheme to demonstrate compliance with the sustainability criteria not covered by the voluntary scheme. Construed in that way, Article 8(4) of the Decree of 23 January 2012 would not be open to objection.

65. I should point out at this juncture that procedures for checking compliance with the sustainability criteria for bioliquids have not been exhaustively harmonised. Article 18 of Directive 2009/28 lays down the obligation to use the MB method and to meet a number of minimum conditions with regard to its application, but it does not go so far as to establish a harmonised Community procedure. ( 28 )

66. Accordingly, it is for economic operators to choose one or other of the certification schemes referred to in Article 18 (a national scheme or a voluntary scheme approved by the Commission). Based on that choice: — If an operator signs up to a complete voluntary scheme (that is to say, one which involves proof of compliance with all the sustainability criteria) approved by the Commission, Member States may not impose additional requirements on such an operator because that is prohibited by Article 18(7) of Directive 2009/28. An identical situation arises where a national provision extends the use of a voluntary scheme approved by the Commission beyond its remit. — If, on the other hand, an operator signs up to a voluntary scheme which is incomplete but which has also been approved by the Commission, the additional use of the national scheme is possible in relation to matters not covered by the national scheme. — Where an operator signs up to a voluntary scheme which has not been approved by the Commission, the Member State may require that operator to comply in full with the criteria under the national certification scheme.

67. In the main proceedings, the undertakings which supplied the palm oil and LEGO signed up to the voluntary ISCC scheme in the period from 2012 to 2014. If that choice in relation to bioliquids is covered by Article 18(4) of the Decree of 23 January 2012, the first situation I referred to above — or rather a variant thereof — will apply. It will be a case of use of a voluntary certification scheme for bioliquids as a result of a reference in a national provision to a Commission decision authorising the use of that scheme exclusively for biofuels.

68. The voluntary ISCC scheme is a complete scheme which allows certification of compliance with all the sustainability criteria and the use of the MB method. That is confirmed by Article 1 of Implementing Decision 2011/438, according to which that scheme demonstrates that consignments of biofuels comply with the sustainability criteria as laid down in Article 17(2) to (5), and furthermore, it may be used for demonstrating compliance with Article 18(1) of Directive 2009/28/EC. The documents explaining the operation of the ISCC scheme ( 29 ) also confirm that it is a complete voluntary scheme.

69. Article 18(7) of Directive 2009/28 lays down a presumption of free movement for bioliquids whose sustainability is certified by a complete voluntary scheme, so that when an economic operator provides proof or data obtained in accordance with that scheme, a Member State will not require the supplier to provide further evidence of compliance with the sustainability criteria set out in Article 17(2) to (5) nor information on measures referred to in the second subparagraph of paragraph 3 of Article 18.

70. Accordingly, Article 18(7) of Directive 2009/28 precludes the application of national legislation, such as the Decree of 23 January 2012, which requires operators who use a complete voluntary scheme, which has been approved by the Commission in respect of biofuels and has been extended to include bioliquids under national law, to comply with the stricter conditions provided for in the national sustainability certification scheme.

3. Application of the national certification scheme

71. Should the referring court find that, under Article 12 of the Decree of 23 January 2012, the voluntary ISCC scheme was not applicable to bioliquids at the material time, then the third situation described above will apply: the use by economic operators of a voluntary scheme which has not been approved by the Commission to certify the sustainability of a bioliquid such as palm oil.

72. In those circumstances, the Member State may require economic operators in the bioliquid production and distribution chain to comply fully or partially with the criteria laid down in the national certification scheme.

73. In this case, the Italian authorities required the fulfilment of two additional requirements in respect of the ISCC certification scheme: — first, the sustainability certificates were required to accompany the consignments of bioliquid, that is, to have the same date as the date of transport; — second, those certificates had to be submitted by all the economic operators involved in the transaction, including mere intermediaries, even though they did not come into physical contact with the bioliquid.

74. The first requirement is stricter than that under the ISCC scheme (which allows the certificate to be provided at a later date). However, I do not believe that it is contrary to any provisions of Directive 2009/28 and I consider, moreover, that it is an appropriate requirement for the purposes of application of the MB method to control the sustainability of bioliquids.

75. That requirement allows closer checks on the bioliquid production and distribution chain and enables the traceability of the consignments to which the MB method is applied in order to verify compliance with the sustainability criteria set out in Article 17(2) to (5) of Directive 2009/28.

76. I believe that it is reasonable for a national scheme to require certificates of sustainability for bioliquids to be submitted at the same time as the consignments are transferred between operators. Allowing delays in the issue and submission of those certificates may be acceptable in a voluntary scheme, such as the ISCC scheme, but I do not see any reason why national certification schemes should be obliged to follow suit.

77. Furthermore, it is a requirement which does not appear to create an appreciable restriction of intra-Community trade in bioliquids in the EU or in trade between the EU and third countries.

78. The compatibility with Directive 2009/28 of the second additional requirement, which imposes on all economic operators, including mere intermediaries who have no physical contact with the consignments of bioliquid, the obligation to submit sustainability certificates, presents greater difficulties.

79. The parties have put forward diverging arguments concerning the compatibility of that requirement with Directive 2009/28. The Italian Government and GSE argue that it is compatible, whereas the Commission, LEGO and the supplier undertakings maintain that it is incompatible with the letter and the spirit of that directive.

80. To my mind, the competence of the Italian State to lay down and implement its national certification scheme militates in favour of the position of GSE and the Italian Government.

81. Article 18(1) of Directive 2009/28 refers to the concept of economic operator but does not define it. Accordingly, it is for the Member States to determine which economic operators are required to prove the sustainability of bioliquids. ( 30 ) It is also the responsibility of the Member States (Article 18(3)) to adopt appropriate measures to ensure that economic operators submit reliable information and make available to the Member State the data that were used to develop the information. Economic operators must also have an adequate standard of independent auditing ( 31 ) of the information submitted, and provide evidence that this has been done.

82. I believe that a provision drafted in those terms grants Member States the power to include the requirement at issue in this case in their national sustainability verification schemes for bioliquids. In my view, there is nothing to preclude the requirement that mere intermediaries should submit the documents requested, on the grounds that they can be deemed a step in the procedure for distribution of the bioliquid.

83. As part of that procedure, it is necessary to ensure that there is awareness of and compliance with the specifications throughout the chain of custody, using the MB method. ( 32 ) In the case of production and distribution chains as complex as those relating to palm oil obtained in Indonesia and transported from France to Italy for delivery to LEGO, I do not believe that the obligation to provide the documents can be deemed excessive.

84. I believe that that measure is also appropriate for reducing the risk of fraud and ensuring that only bioliquids which comply with the sustainability criteria and the BM method are eligible for aid for their consumption and are taken into account for the purpose of calculating the greenhouse gas emission saving.

85. Accordingly, Article 18(7) of Directive 2009/28 does not preclude mere intermediaries from being made subject to the requirements of the national sustainability verification scheme for bioliquids, provided that they are not signed up to a voluntary certification scheme which is approved by the Commission under Article 18(4) of that directive or which is applicable as a result of a reference in national legislation.

4. Compatibility with Article 34 TFEU of the requirement that mere intermediaries must be subject to a national sustainability verification scheme for bioliquids

86. The fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not preclude this Court from providing the national court with all the elements of interpretation that may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. In that regard, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, having regard to the subject matter of the dispute. ( 33 )

87. Having found that it is compatible with Directive 2009/28 for mere intermediaries to be subject to a national sustainability verification scheme for bioliquids, it is necessary to examine whether that requirement infringes the prohibition laid down in Article 34 TFEU, even though the referring court has not raised that point.

88. The Court has held that any provision which transposes into national law a directive providing for non-exhaustive harmonisation must be compatible with primary law. ( 34 ) On the other hand, in the case of exhaustive harmonisation, the compatibility of national measures must be assessed in the light of the provisions of that harmonising measure and not in the light of primary law. ( 35 )

89. The disputed obligation must be examined in accordance with that case-law, since Article 18 of Directive 2009/28 does not exhaustively harmonise national laws governing schemes for verifying compliance with the sustainability criteria for bioliquids. ( 36 )

90. Therefore, it is necessary to establish whether, by imposing on mere intermediaries in a bioliquid supply chain, who have no physical contact with the product, the obligation to submit certificates, the national provision creates a barrier to intra-Community trade in such goods which is incompatible with the prohibition in Article 34 TFEU. ( 37 )

91. According to the Court’s settled case-law, in prohibiting between Member States measures having equivalent effect to quantitative restrictions on imports, Article 34 TFEU covers any national measure capable of hindering, directly or indirectly, actually or potentially, intra-Community trade. ( 38 ) Intra-Community trade is affected in this case because the goods concerned (palm oil) were produced in Indonesia, imported into free circulation in the EU and stored in France, from where they were transported to Italy to be sold to LEGO.

92. The obligation to submit certificates confirming sustainability, imposed in Italy on mere intermediaries who have no physical contact with bioliquids, makes the import of bioliquids more difficult, both from other Member States and from third countries. The absence of that obligation would make it easier to place bioliquids on the market and would promote intra-Community trade and trade with third countries.

93. To that extent, therefore, ( 39 ) the national provision impedes the trade in bioliquids and may be classified as a measure having equivalent effect to a quantitative restriction, contrary to Article 34 TFEU. There would be no impediment to trade if the Italian legislation confined that obligation to operators in the supply chain who come into physical contact with the bioliquids.

94. Can that restriction be justified by one of the reasons in the public interest set out in Article 36 TFEU or by overriding requirements? In either case, the national provision must, in accordance with the principle of proportionality, be appropriate for ensuring attainment of the objective pursued and must not go beyond what is necessary for that purpose. ( 40 )

95. The obligation could be justified by the requirement of environmental protection and, more specifically, by the aim of promoting the use of bioliquids as renewable energy, ( 41 ) which helps to reduce greenhouse gas emissions, one of the main causes of climate change which the EU and its Member States have made a commitment to combat. ( 42 )

96. By contributing to the protection of the environment, the promotion of renewable energy in general, and of bioliquids in particular, also contributes, indirectly, to the protection of the health and life of humans, animals and plants, which are among the public interest grounds listed in Article 36 TFEU. ( 43 )

97. Moreover, the fact that all economic operators, without exception, who are involved in the production and distribution of sustainable bioliquids are required to comply with the chain of custody, ensured by the use of the MB method, assists with the prevention of fraud. To the same extent, it also prevents those bioliquids from being sold with the inherent legal benefits, so that bioliquids which do not satisfy the sustainability criteria are not eligible for those benefits. Protection of the environment and the use of energy from renewable sources therefore justify national legislation of this kind.

98. It is necessary to examine whether the Italian legislation passes the proportionality test, that is to say, whether it is appropriate for ensuring attainment of the objective pursued and does not go beyond what is necessary for that purpose.

99. I do not believe there is much doubt concerning the appropriateness of the measure in relation to the objective pursued. As I have pointed out, the measure is intended to provide the maximum protection of the chain of custody for the bioliquids concerned, from their production to their use in the generation of energy, particularly since the procedure by which the bioliquids reach the market is complex (as I have stated, Indonesian palm oil, stored in France, is placed on the market in Italy). I repeat that, for the purposes of preventing fraud and ensuring compliance with the sustainability criteria for bioliquids, it appears to me to be an appropriate measure available to a Member State, which may include the measure in its national sustainability verification scheme.

100. The proportionality test also requires an analysis of whether the measure, in addition to being appropriate, does not go beyond what is necessary in order to achieve its objective. In that connection, the Commission submits that it is unnecessary to require mere intermediaries to satisfy the requirements of the national scheme for verifying the sustainability of bioliquids because they are mere traders who do not have the product in their possession and do not come into physical contact with it. Since the MB method ensures the physical traceability of the product, only economic operators who produce, sell, store and purchase the product, and have physical possession of it, should be subject to the national verification scheme because it is they alone who have the ability to make changes to the product.

101. I am not persuaded by that argument, which is also advanced by LEGO and the supplier undertakings. As the Italian Government and GSE rightly contend, an intermediary is also involved in the bioliquid distribution chain and could commit fraud as regards the sustainability of the bioliquid, even without coming into physical contact with it.

102. It was confirmed at the hearing that Movendi was the legal proprietor of the bioliquid and that, in that capacity, the bioliquid was fully available to it. In principle, there was nothing to preclude Movendi from selling the bioliquid, mixing it with non-sustainable products or changing its composition, given that, as I have already observed, it benefited from all the rights inherent in full ownership of the product. The possibility of those risks appears to me to be sufficient for finding that the imposition on that legal person (and other intermediaries in the distribution chain) of the obligations under the scheme is proportionate, even though that may entail additional administrative burdens for the persons concerned.

103. Accordingly, I believe that national legislation which requires mere intermediaries, who do not come into physical contact with the product, to comply with the conditions imposed by a national sustainability verification scheme for bioliquids is compatible with the prohibition of measures having equivalent effect to quantitative restrictions on imports laid down in Article 34 TFEU.

IV. Conclusion

104. In the light of the foregoing considerations, I suggest that the Court reply as follows to the questions referred for a preliminary ruling by the Consiglio di Stato (Council of State, Italy): (1) Article 18(7) 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 – precludes the application of national legislation which requires operators who sign up to a complete voluntary scheme, approved by the Commission in respect of biofuels and extended to include bioliquids under national law, to comply with the stricter conditions laid down in the national sustainability certification scheme; – does not preclude a national sustainability verification scheme for bioliquids from requiring that economic operators who are involved in the product supply chain as mere intermediaries, without having physical possession of the bioliquid, must also submit substantiating documents, where those operators have not signed up to a voluntary certification scheme which has been approved by the Commission or which is applicable as a result of a reference in national legislation. (2) Article 34 TFEU does not preclude national legislation which requires mere intermediaries, who do not come into physical contact with the product, to comply with the conditions imposed by a national sustainability verification scheme for bioliquids, where that scheme is applicable. (3) Commission Implementing Decision 2011/438/EU of 19 July 2011 on the recognition of the ‘International Sustainability and Carbon Certification’ scheme for demonstrating compliance with the sustainability criteria under Directives 2009/28/EC and 2009/30/EC of the European Parliament and of the Council was applicable only to the trade in biofuels but not to the trade in bioliquids, unless the law of a Member State made it possible to extend to bioliquids the voluntary scheme approved by that decision, a matter which it is for the national court to verify.

( 1 ) Original language: Spanish.

( 2 ) Judgment of 22 June 2017 (C‑549/15, EU:C:2017:490).

( 3 ) Directive 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).

( 4 ) Decision of 19 July 2011 on the recognition of the ‘International Sustainability and Carbon Certification’ scheme for demonstrating compliance with the sustainability criteria under Directives 2009/28/EC and 2009/30/EC of the European Parliament and of the Council (OJ 2011 L 190, p. 79).

( 5 ) Commission Implementing Decision of 9 August 2016 on recognition of the ‘International Sustainability and Carbon Certification system’ for demonstrating compliance with the sustainability criteria under Directives 98/70/EC and 2009/28/EC of the European Parliament and of the Council (OJ 2016 L 215, p. 33).

( 6 ) Decreto legislativo, 3 marzo 2011, n. 28, Attuazione della direttiva 2009/28/CE sulla promozione dell’uso dell’energia da fonti rinnovabili, recante modifica e successiva abrogazione delle direttive 2001/77/CE e 2003/30/CE (GURI No 71 of 28 March 2011).

( 7 ) Decreto legislativo 21 marzo 2005, n. 66, Attuazione della direttiva 2003/17/CE relativa alla qualità della benzina e del combustibile diesel (GURI No 96 of 27 April 2005).

( 8 ) Decreto legislativo, 31 marzo 2011, n. 55, Attuazione della direttiva 2009/30/CE, che modifica la direttiva 98/70/CE, per quanto riguarda le specifiche relative a benzina, combustibile diesel e gasolio, nonché l’introduzione di un meccanismo inteso a controllare e ridurre le emissioni di gas a effetto serra, modifica la direttiva 1999/32/CE per quanto concerne le specifiche relative al combustibile utilizzato dalle navi adibite alla navigazione interna e abroga la direttiva 93/12/CEE (GURI No 97 of 28 April 2011).

( 9 ) Decreto del ministero dell’ambiente e della tutela del territorio e del mare, 23 gennaio 2012, Sistema nazionale di certificazione per biocarburanti e bioliquidi (GURI No 31 of 7 February 2012). ‘Decree of 23 January 2012’.

( 10 ) GSE is the public enterprise responsible in Italy for administering support for the production of energy from renewable sources.

( 11 ) Opinion of 18 January 2017, E.ON Biofor Sverige (C‑549/15, EU:C:2017:25, points 40 to 49).

( 12 ) For example, land of high biodiversity value (primary forest and forested areas; areas designated for nature protection purposes or for the protection of rare, threatened or endangered ecosystems or species; highly diverse grasslands) or land with high stocks of carbon (wetlands, forested areas or areas with very tall trees) and peatlands.

( 13 ) That is the view expressed by the Commission in its Communication on the practical implementation of the EU biofuels and bioliquids sustainability scheme and on counting rules for biofuels (OJ 2010 C 160, p. 8).

( 14 ) To be specific, it rejected the use of the identity preservation method, which prohibits the mixing of biofuels with other biofuels or other types of fuel, and the tradable certificate (book and claim) method, which enables suppliers to demonstrate the sustainability of a bioliquid without needing to demonstrate any traceability A comparative analysis of the advantages and disadvantages of those three methods may be found in the Final report for Task 1 in the context of the project ENER/C1/2010-431, Van de Staaij, J., Van den Bos, A., Toop, G., Alberici, S., and Yildiz, I., Analysis of the operation of the mass balance system and alternatives, 2012.

( 15 ) The Communication from the Commission on voluntary schemes and default values in the EU biofuels and bioliquids sustainability scheme (OJ 2010 C 160, p. 1) provides further details of the manner in which the MB method should be used as a procedure for ensuring the chain of custody of biofuels which is capable of guaranteeing traceability of compliance with the sustainability criteria from the production stage until final consumption. The Commission observed that MB is a system in which ‘sustainability characteristics’ remain assigned to ‘consignments’ and when consignments with different sustainability characteristics are mixed, the separate sizes and sustainability characteristics of each consignment remain assigned to the mixture. If a mixture is split up, any consignment taken out of it can be assigned any of the sets of sustainability characteristics accompanied with sizes as long as the combination of all consignments taken out of the mixture has the same sizes for each of the sets of sustainability characteristics that were in the mixture.

( 16 ) These can be viewed at https://ec.europa.eu/energy/en/topics/renewable-energy/biofuels/voluntary-schemes

( 17 ) 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).

( 18 ) The new wording of the second subparagraph of Article 18(4) of Directive 2009/28 is: ‘The Commission may decide that voluntary national or international schemes setting standards for the production of biomass products contain accurate data for the purposes of Article 17(2), and/or demonstrate that consignments of biofuel or bioliquid [italics added] comply with the sustainability criteria set out in Article 17(3), (4) and (5), and/or that no materials have been intentionally modified or discarded so that the consignment or part thereof would fall under Annex IX. The Commission may decide that those schemes contain accurate data for the purposes of information on measures taken for the conservation of areas that provide, in critical situations, basic ecosystem services (such as watershed protection and erosion control), for soil, water and air protection, the restoration of degraded land, the avoidance of excessive water consumption in areas where water is scarce and on the issues referred to in the second subparagraph of Article 17(7). The Commission may also recognise areas for the protection of rare, threatened or endangered ecosystems or species recognised by international agreements or included in lists drawn up by intergovernmental organisations or the International Union for the Conservation of Nature for the purposes of Article 17(3)(b)(ii).’

( 19 ) The documents relating to the operation of the ISCC scheme are available on the Commission’s website: https://ec.europa.eu/energy/en/topics/renewable-energy/biofuels/voluntary-schemes

( 20 ) According to recitals 8 and 9 in the preamble to Implementing Decision 2011/438, the ISCC scheme adequately covered the sustainability criteria of Directive 2009/28, as well as applying an MB methodology in line with the requirements of Article 18(1) of that directive. The evaluation of the ISCC scheme also found that it met adequate standards of reliability, transparency and independent auditing and also complied with the methodological requirements in Annex V to Directive 2009/28.

( 21 ) I refer to the definitions of both products in Article 2(h) of Directive 2009/28. Both are produced from biomass but the former are liquid or gaseous fuels used only in transport, whereas the latter are liquid fuel liquid fuel for energy purposes other than for transport.

( 22 ) The period of validity of Implementing Decision 2011/438 was, according to Article 2 thereof, 5 years from its entry into force (that is to say, from 10 August 2011 to 9 August 2016).

( 23 ) Point 2.5 (‘Voluntary schemes for bioliquids’) stated: ‘For bioliquids, the Commission cannot explicitly recognise a voluntary scheme as a source of accurate data for the land related criteria … However, where the Commission decides that a voluntary scheme provides accurate data as far as biofuels are concerned, the Commission encourages Member States to accept such schemes equally for bioliquids.’

( 24 ) It should be recalled that that provision is worded as follows: ‘1. For the purposes of the present decree, in derogation from the provisions of Article 8(1), economic operators in the bioliquid supply chain may sign up to voluntary schemes that are the subject of a decision under the second subparagraph of Article 7c(4) of Directive 98/70/EC, applicable to biofuels, provided that they comply with the conditions set out in paragraph 2.’

( 25 ) Recital 76 in the preamble to Directive 2009/28 and recital 3 in the preamble to Implementing Decision 2011/438.

( 26 ) That is demonstrated by the explanatory table drawn up by the Commission, available at: https://ec.europa.eu/energy/sites/ener/files/documents/voluntary_schemes_overview_dec17.pdf

( 27 ) Communication from the Commission on voluntary schemes and default values in the EU biofuels and bioliquids sustainability scheme, according to which ‘[a] voluntary scheme should cover, in part or whole, the sustainability criteria laid down in the Directive’.

( 28 ) See my Opinion delivered on 18 January 2017 in E.ON Biofor Sverige (C‑549/15, EU:C:2017:25, point 57), and judgment of 22 June 2017, E.ON Biofor Sverige (C‑549/15, EU:C:2017:490, paragraph 40). The latter states: ‘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.’

( 29 ) See, inter alia, the ISCC document, Assessment of International Sustainability & Carbon Certification system (ISCC), 2016, available at: https://ec.europa.eu/energy/en/topics/renewable-energy/biofuels/voluntary-schemes

( 30 ) In the case of voluntary schemes, that discretion also exists for the purpose of determining the economic operators required to provide such proof, which must be assessed by the Commission when it evaluates the schemes.

( 31 )

( 32 ) Point 2.2.3. of the Communication from the Commission on voluntary schemes and default values in the EU biofuels and bioliquids sustainability scheme states that ‘[t]ypically, biofuels/bioliquids have a production chain with many links, from field to distribution of the fuel. Feedstock is often transformed into an intermediate product and then into a final product. It is in relation to the final product that compliance with the requirements of the Directive need to be shown. To show this, claims will need to be made about the raw material and/or intermediate products used.’ That point also states that ‘[t]he method by which a connection is made between information or claims concerning raw materials or intermediate products and claims concerning final products is known as the chain of custody. The chain of custody would normally include all the stages from the feedstock production up until the release of the fuels for consumption. The method laid down in the Directive for the chain of custody is the mass balance method.’

( 33 ) Judgments of 22 June 2017, E.ON Biofor Sverige (C‑549/15, EU:C:2017:490, paragraph 72), and of 27 October 2009, ČEZ (C‑115/08, EU:C:2009:660, paragraph 81 and the case-law cited).

( 34 ) Judgments of 12 October 2000, Ruwet (C‑3/99, EU:C:2000:560, paragraph 47), and of 18 September 2003, Bosal (C‑168/01, EU:C:2003:479, paragraphs 25 and 26). In the case of exhaustive harmonisation by directives which permit more protective national measures, the Court has also held that these must be compatible with the prohibition laid down in Articles 34 TFEU to 36 TFEU (judgment of 16 December 2008, Gysbrechts and Santurel Inter, C‑205/07, EU:C:2008:730, paragraphs 33 to 35).

( 35 ) Judgment of 1 July 2014, Ålands Vindkraft (C‑573/12, EU:C:2014:2037, paragraph 57 and the case-law cited).

( 36 ) Judgment of 22 June 2017, E.ON Biofor Sverige (C‑549/15, EU:C:2017:490, paragraphs 76 to 77).

( 37 ) See my Opinion of 18 January 2017 in E.ON Biofor Sverige (C‑549/15, EU:C:2017:25, point 72), and judgment of 22 June 2017, E.ON Biofor Sverige (C‑549/15, EU:C:2017:490, paragraph 78).

( 38 ) See, inter alia, judgments of 11 July 1974, Dassonville (8/74, EU:C:1974:82, paragraph 5); of 1 July 2014, Ålands Vindkraft (C‑573/12, EU:C:2014:2037, paragraph 66); of 11 September 2014, Essent Belgium (C‑204/12 to C‑208/12, EU:C:2014:2192, paragraph 77); and of 29 September 2016, Essent Belgium (C‑492/14, EU:C:2016:732, paragraph 96).

( 39 ) According to the fourth subparagraph of Article 18(3) of Directive 2009/28, ‘[t]he obligations laid down in this paragraph shall apply whether the biofuels or bioliquids are produced within the Community or imported.’

( 40 ) See, in particular, judgments of 1 July 2014, Ålands Vindkraft (C‑573/12, EU:C:2014:2037, paragraph 76), and of 11 December 2008, Commission v Austria (C‑524/07, EU:C:2008:717, paragraph 54).

( 41 ) See judgments of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160, paragraph 73); of 11 September 2014, Essent Belgium (C‑204/12 to C‑208/12, EU:C:2014:2192, paragraph 91); and of 29 September 2016, Essent Belgium (C‑492/14, EU:C:2016:732, paragraph 84).

( 42 ) See judgments of 26 September 2013, IBV & Cie (C‑195/12, EU:C:2013:598), paragraph 56; of 11 September 2014, Essent Belgium (C‑204/12 to C-208/12, EU:C:2014:2192, paragraph 92); and of 22 June 2017, E.ON Biofor Sverige (C‑549/15, EU:C:2017:490, paragraphs 85 and 88).

( 43 ) Judgments of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160, paragraph 75); of 1 July 2014, Ålands Vindkraft (C‑573/12, EU:C:2014:2037, paragraph 80); and of 22 June 2017, E.ON Biofor Sverige (C‑549/15, EU:C:2017:490, paragraph 89).