Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt.
Date: 2014-09-11
52. On the other hand, it is not for the Court to rule on the interpretation of national provisions, as such an interpretation falls within the exclusive jurisdiction of the national courts. Thus, the Court, when a question is referred to it by a national court, must base itself on the interpretation of national law as described to it by that court (see, inter alia, ČEZ , C‑115/08, EU:C:2009:660, paragraph 57 and the case-law cited).
54. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite clear that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Carmen Media Group , EU:C:2010:505, paragraph 76 and the case-law cited).
67. Lastly, it must also be borne in mind in that regard that, as evidenced by Article 3(1) and (2) of Directive 2001/77, read in conjunction with the Annex thereto, Member States must inter alia fix national indicative targets for future consumption of green electricity, taking account, as reference values, of both ‘national production’ of green electricity in 1997 and the proportion, expressed as a percentage for 1997 and 2010 respectively, of green electricity in gross electricity consumption, that proportion being calculated on the basis of the ‘national production’ of green electricity divided by the gross national electricity consumption.
68. It follows that national support mechanisms for producers of electricity as referred to in Article 4 of Directive 2001/77, which are used inter alia to help Member States achieve their respective national indicative targets, must in principle lead to an increase in national production of green electricity. In that regard, recital 10 in the preamble to that directive states inter alia that Member States are not required to recognise the purchase of a guarantee of origin from other Member States or the corresponding purchase of electricity as a contribution to the fulfilment of a national quota obligation.
77. According to the Court’s settled case-law, Article 28 EC, in prohibiting all measures having equivalent effect to quantitative restrictions on imports, covers any national measure which is capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (see, inter alia, Dassonville , 8/74, EU:C:1974:82, paragraph 5, and PreussenElektra , C‑379/98, EU:C:2001:160, paragraph 69).
83. In those circumstances, it must be held that legislation such as that at issue in the main proceedings is capable, in various ways, of hindering — at least indirectly and potentially — imports of electricity, especially green electricity, from other Member States (see, to that effect, Ålands Vindkraft , EU:C:2014:2037, paragraphs 67 to 75).
85. Moreover, only green certificates awarded under that legislation can be used to fulfil that obligation. Accordingly, those suppliers and consumers are as a rule required, on the basis of the electricity that they import, to purchase such certificates, failing which they have to pay an administrative fine. Such legislation is thus capable of impeding electricity imports from other Member States (see, to that effect, Ålands Vindkraft , EU:C:2014:2037, paragraphs 69 and 70 and the case-law cited).
87. It follows that, to that extent also, the effect of a support scheme such as that at issue in the main proceedings is, at least potentially, to curb electricity imports from other Member States (see, to that effect, Ålands Vindkraft , EU:C:2014:2037, paragraphs 72 and 73 and the case-law cited).
88. It follows from the foregoing that legislation such as that at issue in the main proceedings is capable of impeding imports of electricity, especially green electricity, from other Member States and that, in consequence, it constitutes a measure having equivalent effect to quantitative restrictions on imports, in principle incompatible with the obligations under EU law resulting from Article 28 EC, unless that legislation can be objectively justified (see, to that effect, inter alia, Ålands Vindkraft , EU:C:2014:2037, paragraph 75 and the case-law cited).
Possible grounds of justification
89.  The Court has consistently held that national legislation or a national practice that constitutes a measure having equivalent effect to quantitative restrictions may be justified on one of the public interest grounds listed in Article 30 EC 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 in order to attain that objective (see, inter alia, Ålands Vindkraft , EU:C:2014:2037, paragraph 76 and the case-law cited).
– The objective of promoting the use of renewable energy sources
90. According to settled case-law, national measures that are capable of hindering intra-Community trade may inter alia be justified by overriding requirements relating to protection of the environment (see, inter alia, Ålands Vindkraft , EU:C:2014:2037, paragraph 77 and the case-law cited).
91. In that regard, it should be noted that the use of renewable energy sources for the production of electricity, which legislation such as that at issue in the main proceedings seeks to promote, is useful for the protection of the environment inasmuch as it contributes to the reduction in greenhouse gas emissions, which are amongst the main causes of climate change that the European Union and its Member States have pledged to combat (see Ålands Vindkraft , EU:C:2014:2037, paragraph 78 and the case-law cited).
92. Therefore, and according to recitals 1 to 3 in the preamble to Directive 2001/77, increased use of renewable energy sources, which is a high priority for the European Union, is an important part of the set of measures required to comply with the Kyoto Protocol and make it possible to meet its targets more quickly (see, to that effect, inter alia IBV & Cie , C‑195/12, EU:C:2013:598, paragraph 56).
98. Firstly, the fact that a national support scheme is designed to favour directly the production of green electricity, rather than solely its consumption, can be explained, in particular, by the fact that the green nature of the electricity relates only to its method of production and that, accordingly, it is primarily at the production stage that the environmental objectives in terms of the reduction of greenhouse gases can actually be pursued (see Ålands Vindkraft , EU:C:2014:2037, paragraph 95).
100. Secondly, and in relation to the fact that the support scheme at issue in the main proceedings is not designed to benefit also the production of green electricity situated in the territory of other Member States inter alia through taking into account guarantees of origin in respect of that electricity, it should be observed that the starting points, the renewable energy potential and the energy mix of each Member State vary (see, to that effect, Ålands Vindkraft , EU:C:2014:2037, paragraph 98).
108. In making such a choice, a Member State does not go beyond the margin of discretion which it retains to pursue the legitimate objective of increasing the production of green electricity (see, to that effect, Ålands Vindkraft , EU:C:2014:2037, paragraphs 109 and 110).
109. Secondly, it must be noted that, unlike, for example, investment aid, the purpose of this type of scheme is to support the operation of installations producing green electricity once they become active. In that regard, the quota obligation is designed in particular to guarantee green electricity producers a demand for the certificates they have been awarded and in that way to facilitate the sale of the green energy that they produce at a price higher than the market price for conventional energy.
110. The effect of that scheme in terms of offering an incentive for electricity producers in general — including, in particular, those who are both producers, on the one hand, and suppliers or consumers, on the other — to increase their production of green electricity does not appear to be open to doubt; nor, consequently, does it appear possible to call in question the ability of that scheme to attain the legitimate objective pursued in the circumstances of this case (see, to that effect, Ålands Vindkraft , EU:C:2014:2037, paragraphs 111 and 112).
111. However, it should be noted, thirdly, that, by its very nature, such a scheme requires for its proper functioning market mechanisms that are capable of enabling traders — who are subject to the quota obligation and who do not yet possess the certificates required to discharge that obligation — to obtain certificates effectively and under fair terms (see, to that effect, Ålands Vindkraft , EU:C:2014:2037, paragraph 113).
112. It is therefore important that mechanisms be established which ensure the creation of a genuine market for certificates in which supply can match demand, reaching some kind of balance, so that it is actually possible for the relevant suppliers to obtain certificates under fair terms (see, to that effect, Ålands Vindkraft , EU:C:2014:2037, paragraph 114).