Essent Belgium NV v Vlaams Gewest and Others.
Date: 2016-09-29
43


The fact that a national court has, formally speaking, worded its request for a preliminary ruling with reference to certain provisions of EU law does not preclude the Court of Justice from providing to the national court all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute (see, in particular, judgment of 27 October 2009, ČEZ, C‑115/08, EU:C:2009:660, paragraph 81 and the case-law cited).
54


It must be noted in that regard, in the first place, that, according to recitals 1 to 3 of that directive, such promotion of renewable energy sources, which is a high priority for the European Union, is justified in particular because the exploitation of those energy sources contributes to environmental protection and sustainable development, and can also contribute to security and diversification of energy supply and make it possible to meet the Kyoto Protocol targets more quickly (see, to that effect, judgment of 26 September 2013, IBV & Cie, C‑195/12, EU:C:2013:598, paragraph 56).
56


Article 4(1) of that directive states that such mechanisms are capable of contributing to attaining the objectives set out in Article 6 EC and Article 174(1) EC, the latter listing the objectives of EU policy on the environment (see, to that effect, judgment of 26 September 2013, IBV & Cie, C‑195/12, EU:C:2013:598, paragraphs 59 and 60).
57


Article 174(1) EC refers to preserving, protecting and improving the quality of the environment, protecting human health, the prudent and rational utilisation of natural resources, and promoting measures at international level to deal with regional or worldwide environmental problems (judgment of 26 September 2013, IBV & Cie, C‑195/12, EU:C:2013:598, paragraph 60).
58


In the second place, as regards the form that mechanisms of support for renewable energy sources at the national level may take, it must be noted that recital 14 of Directive 2001/77 does no more than list the various kinds of measures to which the Member States generally have recourse in that connection, namely, green certificates, investment aid, tax exemptions or reductions, tax refunds and direct price support schemes (judgment of 26 November 2014, Green Network, C‑66/13, EU:C:2014:2399, paragraph 52 and the case-law cited).
60


It follows, in particular, that Directive 2001/77 allows Member States considerable latitude for the purposes of the adoption and implementation of such support schemes for green electricity producers (judgment of 26 November 2014, Green Network, C‑66/13, EU:C:2014:2399, paragraph 54 and the case-law cited).
62


However, it is important also to take into account, in that context, the fact that Article 3(1) and (2) of Directive 2001/77 makes clear 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 under Article 3, must in principle lead to an increase in national production of green electricity (see, to that effect, judgment of 26 November 2014, Green Network, C‑66/13, EU:C:2014:2399, paragraphs 56 and 57 and the case-law cited).
72


As regards, first, the concept of ‘access to the system’ within the meaning of that provision, the Court has made clear that that includes not the connection which corresponds to physical connection to the system, but the right to use electricity systems (see, to that effect, judgment of 9 October 2008, Sabatauskas and Others, C‑239/07, EU:C:2008:551, paragraph 42).
73


The term ‘access’ is thus linked to the supply of electricity, including the cost of the service. Recitals 2, 6, 13, 15 and 17 of Directive 2003/54 state in particular that such access must be fairly priced and use non-discriminatory tariffs in order to ensure effective market access for all market players (see, to that effect, judgment of 9 October 2008, Sabatauskas and Others, C‑239/07, EU:C:2008:551, paragraph 40).
74


Secondly, as regards the concept of ‘third party’ within the meaning of Article 20(1) of Directive 2003/54, it must be borne in mind that the text of that provision itself explains that term by also using the term ‘system users’, defined in Article 2(18) of the directive as meaning any natural or legal persons supplying to, or being supplied by, a transmission or distribution system (see judgment of 9 October 2008, Sabatauskas and Others, C‑239/07, EU:C:2008:551, paragraph 44).
75


Those users include suppliers of electricity, the Court having stated, inter alia, that, in order for eligible customers to be able, as stated in recital 4 of Directive 2003/54, freely to choose their suppliers, it is necessary that suppliers should have the right to access the distribution systems which carry electricity to customers (see, to that effect, judgment of 9 October 2008, Sabatauskas and Others, C‑239/07, EU:C:2008:551, paragraphs 32, 33 and 43).
76


Lastly, it must be borne in mind that open third party access to transmission and distribution systems established in particular by Article 20 of Directive 2003/54 constitutes one of the essential measures which the Member States are required to implement in order to bring about completion of the internal market in electricity (see judgment of 9 October 2008, Sabatauskas and Others, C‑239/07, EU:C:2008:551, paragraph 33 and the case-law cited).
78


Article 16 thus prohibits Member States from organising access to the distribution system in a discriminatory manner, this prohibition relating generally to all discrimination, including, therefore, any discrimination in terms of the cost of using the distribution system (see, to that effect, judgments of 14 April 2005, AEM and AEM Torino, C‑128/03 and C‑129/03, EU:C:2005:224, paragraph 59, and of 7 June 2005, VEMW and Others, C‑17/03, EU:C:2005:362, paragraphs 36, 45 and 46).
79


As to whether regional legislation such as that at issue in the main proceedings entails discrimination contrary to Article 16 of Directive 96/92 and Article 20(1) of Directive 2003/54, it must be noted that those provisions which require that the action of the State in creating access to the system should not be discriminatory are specific expressions of the general principle of equality (see, with regard to Article 16 of Directive 96/92, judgment of 7 June 2005, VEMW and Others, C‑17/03, EU:C:2005:362, paragraph 47 and the case-law cited).
80


In accordance with settled case-law, the prohibition of discrimination requires that comparable situations are not treated differently unless such difference in treatment is objectively justified (see, in particular, judgment of 7 June 2005, VEMW and Others, C‑17/03, EU:C:2005:362, paragraph 48).
81


On that last point, it must be borne in mind that a difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment (see, in particular, judgment of 16 December 2008, Arcelor Atlantique and Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 47 and the case-law cited).
84


That being the case, the legitimacy of the objective of the regional legislation at issue in the main proceedings, namely promoting the production of green electricity, is not in doubt. It should be noted in particular that the use of renewable energy sources for the production of electricity 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 judgment of 11 September 2014, Essent Belgium, C‑204/12 to C‑208/12, EU:C:2014:2192, paragraph 91 and the case-law cited).
91


It is, moreover, admittedly apparent from Article 3(8) of Directive 2003/54 that, unlike the rule which applied under Directive 96/92 with regard to Article 3(3) and Article 16 thereof (see, in that regard, judgment of 7 June 2005, VEMW and Others, C‑17/03, EU:C:2005:362, paragraph 65), Member States are permitted not to apply the provisions of Article 20 of Directive 2003/54 providing for non-discriminatory third party access to the transmission and distribution systems in so far as the application of Article 20 would obstruct the performance, in law or in fact, of the public service obligations thus imposed on electricity undertakings. However, the Court has already held that, in order to be able to derogate in this way from the requirements of Article 20 of Directive 2003/54, Member States must, inter alia, ascertain whether the performance by the system operators of their public service obligations cannot be achieved by other means which do not impact adversely on the right of access to the systems, which is one of the rights enshrined in Directive 2003/54 (judgment of 22 May 2008, citiworks, C‑439/06, EU:C:2008:298, paragraph 60).
93


As regards Article 86 EC, the Court has already held that, although Article 3(2) of Directive 2003/54, read in conjunction with that provision of the Treaty, allows obligations to be imposed on undertakings responsible for operating a public service as regards, inter alia, setting prices for the supply of electricity, national legislation imposing such obligations must be capable of securing the objective which it pursues and must not go beyond what is necessary in order to attain it, so as to be consistent with the principle of proportionality (see judgment of 21 December 2011, Enel Produzione, C‑242/10, EU:C:2011:861, paragraph 55).
96


As is apparent from 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, in particular, 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; and of 11 September 2014, Essent Belgium, C‑204/12 to C‑208/12, EU:C:2014:2192, paragraph 77).
98


Encouraging, as it does, operators, particularly electricity suppliers, to buy green electricity produced in the particular region or in the Member State to which that region belongs, owing to the economic advantage arising from the fact that the distribution of that electricity is free of charge, such legislation must be regarded as a measure having an effect equivalent to a quantitative restriction as referred to in Article 28 EC (see, by analogy, judgment of 5 June 1986, Commission v Italy, 103/84, EU:C:1986:229, paragraphs 2 and 24 and the case-law cited).
99


As regards the assertion by the Flemish Region and the VREG that any possible hindrance to the free movement of electricity remains of relatively limited significance in the present case, notably in so far as, at the material time, the proportion of green electricity produced in Flanders was still quite small, suffice it to note that even if that did prove to be so, it would still be the case that a national measure does not fall outside the scope of the prohibition laid down in Article 28 EC merely because the hindrance to imports which it creates is slight and because it is possible for imported products to be marketed in other ways (see, in particular, judgment of 5 June 1986, Commission v Italy, 103/84, EU:C:1986:229, paragraph 18 and the case-law cited).
100


Moreover, the Court has consistently held that national legislation which constitutes a measure having equivalent effect to quantitative restrictions may nonetheless 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, in particular, judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 76 and the case-law cited).
101


National measures that are capable of hindering intra-Community trade may thus, inter alia, be justified by overriding requirements relating to protection of the environment and notably by the concern to promote an increase in the use of renewable energy sources for the production of electricity, which, as has already been pointed out in paragraph 84 of the present judgment, is useful for such protection and which is also designed to protect the health and life of humans, animals and plants, which are among the public interest grounds listed in Article 30 EC (see, to that effect, in particular, judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraphs 77 to 80 and the case-law cited).
105


It must first of all be pointed out in that regard that, as the Court has already stated, 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 judgment of 11 September 2014, Essent Belgium, C‑204/12 to C‑208/12, EU:C:2014:2192, paragraph 98 and the case-law cited).
106


Similarly, it should be pointed out that, as has already been noted in paragraph 62 of the present judgment, it follows from a reading of Article 3(1) and (2) in conjunction with Article 4 of Directive 2001/77 that national support mechanisms for producers of electricity as referred to in the latter article, which are used inter alia to help Member States achieve the respective national indicative targets imposed on them by that directive, must in principle lead to an increase in national production of green electricity (see judgment of 26 November 2014, Green Network, C‑66/13, EU:C:2014:2399, paragraph 57 and the case-law cited).
107


That circumstance, combined in particular with the fact that EU law has not harmonised the national support schemes for green electricity, means that it is possible in principle for Member States to limit access to such schemes to green electricity production located in their territory (see, by analogy, in relation to Directive 2009/28, judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraphs 94 and 97 to 99).
108


As regards the ability of national support schemes for the production of green electricity to achieve the objective of increasing such production, the Court has notably held that an obligation to purchase green electricity at minimum prices was capable of conferring a certain economic advantage on producers of that type of electricity, since it guarantees them, with no risk, higher profits than they would make in its absence (judgment of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160, paragraph 54).
109


Similarly, commenting on national support schemes that use the mechanism of what are known as ‘green certificates’, the Court observed that the obligation for electricity suppliers to obtain a quota of such certificates from green electricity producers was designed in particular to guarantee those 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. The Court also pointed out in that regard that the effect of that scheme in terms of offering an incentive for electricity producers in general to increase their production of green electricity did not appear to be open to doubt; nor, consequently, did it appear possible to call in question the ability of that scheme to attain the legitimate objective pursued in the circumstances of the case (see judgment of 11 September 2014, Essent Belgium, C‑204/12 to C‑208/12, EU:C:2014:2192, paragraphs 109 and 110 and the case-law cited).
110


Such green energy support schemes, whose production costs seem to be still quite high as compared with the costs of electricity produced from non-renewable energy sources, are inherently designed in particular to foster, from a long-term perspective, investment in new installations, by giving producers certain guarantees about the future marketing of their green electricity (see judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 103).