E.ON Biofor Sverige AB v Statens energimyndighet.
Date: 2017-06-22
28


In that regard, it must be pointed out that, as is apparent from Article 17 of Directive 2009/28, read in the light of recitals 65 and 94 of that directive, the EU legislature intended, by taking as its basis Article 95 EC, now Article 114 TFEU, in particular, to harmonise the sustainability criteria which it is mandatory for biofuels to fulfil in order for the energy produced from them to be taken into account, within each Member State, for three purposes set out in Article 17(1)(a), (b) and (c) respectively. Those purposes are measuring the Member States’ compliance with their national targets referred to in Article 3 of Directive 2009/28, on the one hand, and with renewable energy obligations, on the other, and possible eligibility for national financial support for the consumption of biofuels.
30


By the expression ‘measures for the approximation’ in that provision, the authors of the FEU Treaty intended to confer on the EU legislature a discretion, depending on the general context and the specific circumstances of the matter to be harmonised, as regards the method of approximation most appropriate for achieving the desired result, in particular in fields with complex technical features. It was thus open to the EU legislature, in the exercise of that discretion, to proceed towards harmonisation only in stages and to require only the gradual abolition of unilateral measures adopted by the Member States (see, inter alia, judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 63 and the case-law cited).
31


Depending on the circumstances, the measures referred to in Article 114(1) TFEU may thus consist in requiring all the Member States to authorise the marketing of the product or products concerned, subjecting such an obligation of authorisation to certain conditions, or even provisionally or definitively prohibiting the marketing of a product or products (see, to that effect, judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 64 and the case-law cited).
32


In the present case, the harmonisation provided for in Article 17 of Directive 2009/28 is very specific, in that it deals only with the biofuels defined in the second paragraph, (i), of Article 2 of that directive as being all liquid or gaseous fuel for transport produced from biomass and in that it merely states which sustainability criteria such biofuels must fulfil in order that the energy produced from them may be taken into account by the Member States for the three specific purposes set out in Article 17(1) of that directive and referred to in paragraph 28 of this judgment. In the context thus drawn, that harmonisation is, furthermore, exhaustive, since Article 17(8) of Directive 2009/28 states that Member States may not, for those same three purposes, refuse to take into account, on other sustainability grounds, biofuels which fulfil the sustainability criteria set out in that article.
40


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.
44


As a preliminary point, it must be borne in mind that Article 34 TFEU, 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, judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 66 and the case-law cited).
45


That prohibition applies not only to national measures but also to measures adopted by the institutions of the European Union (see, inter alia, judgments of 29 February 1984, Rewe-Zentrale, 37/83, EU:C:1984:89, paragraph 18; of 14 December 2004, Swedish Match, C‑210/03, EU:C:2004:802, paragraph 59; and of 12 July 2005, Alliance for Natural Health and Others, C‑154/04 and C‑155/04, EU:C:2005:449, paragraph 47).
46


In accordance with settled case-law, Article 34 TFEU nonetheless does not preclude prohibitions or restrictions justified on one of the public interest grounds listed in Article 36 TFEU or by overriding requirements, including, inter alia, the protection of the environment. 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, to that effect, inter alia, judgments of 12 July 2005, Alliance for Natural Health and Others, C‑154/04 and C‑155/04, EU:C:2005:449, paragraphs 48 and 51, and of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraphs 76 and 77).
48


It must be recalled, in that regard, that Article 11 TFEU provides that environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development (see, inter alia, Opinion 2/15 of 16 May 2017, EU:C:2017:376, paragraph 146) and that Article 114(3) TFEU expressly requires that, in achieving harmonisation, a high level of protection of the environment should be guaranteed (see, by analogy, with regard to the protection of health, judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 61 and the case-law cited).
49


Thus, when there are obstacles to trade, or it is likely that such obstacles will emerge in the future, because the Member States have taken, or are about to take, divergent measures with respect to a product or a class of products such as to bring about different levels of protection, Article 114 TFEU authorises the EU legislature to intervene by adopting appropriate measures, in compliance with Article 114(3) TFEU and with the legal principles referred to in the FEU Treaty or identified in the case-law, in particular the principle of proportionality (see, to that effect, judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 62 and the case-law cited).
50


Moreover, with regard to judicial review of the conditions referred to in the previous paragraph, it must also be borne in mind that the EU legislature must be allowed a broad discretion when it is called upon to legislate in an area which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. The lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate in relation to the objective which the competent institutions are seeking to pursue (see, to that effect, in the sphere of the protection of health, judgments of 14 December 2004, Swedish Match, C‑210/03, EU:C:2004:802, paragraph 48, and of 12 July 2005, Alliance for Natural Health and Others, C‑154/04 and C‑155/04, EU:C:2005:449, paragraph 52; see also, to that effect, with regard to EU environmental policy, judgments of 15 December 2005, Greece v Commission, C‑86/03, EU:C:2005:769, paragraphs 87 and 88, and of 21 December 2016, Associazione Italia Nostra Onlus, C‑444/15, EU:C:2016:978, paragraph 46).
59


In that respect, the scheme thus instituted by Articles 17 to 19 of Directive 2009/28 therefore favours rather than restricts the free movement of goods (see, by analogy, judgments of 29 February 1984, Rewe-Zentrale, 37/83, EU:C:1984:89, paragraph 19, and of 12 July 2012, Association Kokopelli, C‑59/11, EU:C:2012:447, paragraph 81).
60


Although Articles 17 and 18 of Directive 2009/28 are not, as such, intended to guarantee that sustainable biogas will be able, without conditions, to be imported from one Member State to another while retaining its sustainability characteristics, that fact is the inevitable consequence of the method of harmonisation chosen by the EU legislature which, as has been recalled in paragraphs 30 and 31 of this judgment, has a discretion, in particular with regard to the possibility of proceeding towards harmonisation only in stages and requiring only the gradual abolition of unilateral measures adopted by the Member States (see, by analogy, judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraphs 79 and 80).
70


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).
72


It is clear from the settled case-law of the Court that 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 (see, inter alia, judgment of 27 October 2009, ČEZ, C‑115/08, EU:C:2009:660, paragraph 81 and the case-law cited).
76


In that regard, it should be noted that the Court has consistently held that, where a matter has been the subject of exhaustive harmonisation at EU level, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure and not in the light of primary law (see, inter alia, judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 57 and the case-law cited).
77


Nonetheless, as has already been noted in paragraph 38 of this judgment, Article 18(1) of Directive 2009/28 did not exhaustively harmonise the verification method linked to the mass balance system so that, provided there is compliance with the general requirements set out in Article 18(1)(a) to (c), the Member States retain a wide discretion when they must determine, more precisely, the specific conditions under which the economic operators concerned will use such a system.
78


It follows therefrom, as the Advocate General noted in point 72 of his Opinion, that when the Member States implement Article 18(1) of Directive 2009/28, they must, inter alia, comply with Article 34 TFEU.
85


In that regard, it must be borne in mind, first, that the use of renewable energy sources for the production of biogas which national legislation such as that of which Chapter 3, Paragraph 3, of the 2011 SE rules forms part seeks ultimately to promote is, in principle, useful for the protection of the environment. Such legislation is intended, following on from the objectives pursued in that regard by Directive 2009/28, in particular Articles 17 and 18 thereof, the actual implementation of which it seeks to ensure, to contribute 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, by analogy, judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 78 and the case-law cited).
86


With regard, specifically, to the sustainability criteria harmonised in Article 17 of Directive 2009/28, compliance with which a measure such as that at issue in the main proceedings seeks, in principle, to ensure, recital 65 of that directive points out that those criteria seek to guarantee that the biofuels used to achieve the objectives laid down in that directive are truly sustainable.
87


As is pointed out more generally in recital 12 of Directive 2009/28, the use of agricultural material such as manure, slurry and other animal and organic waste for biogas production has, in view of the high greenhouse gas emission saving potential, significant environmental advantages in terms of heat and power production and its use as biofuel.
88


That being so, the increase in the use of renewable energy sources constitutes — as is explained, in particular, in recital 1 of Directive 2009/28 — one of the important components of the package of measures needed to reduce greenhouse gas emissions and to comply with the Kyoto Protocol to the United Nations Framework Convention on Climate Change, and with other EU and international greenhouse gas emission reduction commitments beyond the year 2012 (see, to that effect, judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 79 and the case-law cited).
89


As the Court has previously pointed out, such an increase is also designed to protect the health and life of humans, animals and plants, which are among the public interest grounds listed in Article 36 TFEU (see judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 80 and the case-law cited).
90


Secondly, it must be borne in mind that, in accordance with settled case-law, the national authorities must show that an exception to the principle of the free movement of goods which they institute is necessary in order to attain the objectives concerned and that it is in conformity with the principle of proportionality. Thus, it is for those authorities, when claiming to have a reason justifying a restriction on the free movement of goods, to demonstrate specifically the existence of a reason relating to the public interest and the proportionality of that measure in relation to the objective pursued (see, to that effect, judgment of 8 May 2003, ATRAL, C‑14/02, EU:C:2003:265, paragraphs 67 to 69 and the case-law cited).