Ålands vindkraft AB v Energimyndigheten.
Date: 2014-07-01
57. 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, Radlberger Getränkegesellschaft and S. Spitz , C‑309/02, EU:C:2004:799, paragraph 53 and the case-law cited).
59. In that regard, it should be noted at the outset that, far from seeking to bring about exhaustive harmonisation of national support schemes for green energy production, the EU legislature — as is apparent, inter alia, from recital 25 to Directive 2009/28 — based its approach on the finding that Member States apply different support schemes and on the principle that it is important to ensure the proper functioning of those schemes in order to maintain investor confidence and to enable those States to define effective national measures in order to achieve their mandatory national overall targets under the directive.
63. Against that background, it cannot be considered that, in covering that aspect of the territorial scope of national support schemes, the harmonisation brought about by Directive 2009/28 in the field of support schemes was of such a kind as to preclude an examination of their compatibility with Article 34 TFEU (see, by analogy, Radlberger Getränkegesellschaft and S. Spitz , EU:C:2004:799, paragraphs 54 to 57).
65. The free movement of goods between Member States is a fundamental principle of the Treaty which finds its expression in the prohibition set out in Article 34 TFEU (see, inter alia, Commission v Denmark , C‑192/01, EU:C:2003:492, paragraph 38).
66. It is settled case-law that, in prohibiting between Member States measures having equivalent effect to quantitative restrictions on imports, Article 34 covers any national measure 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 , EU:C:2001:160, paragraph 69).
67. As it is, it must be noted in that regard that the legislation at issue is capable, in various ways, of hindering — at least indirectly and potentially — imports of electricity, especially green electricity, from other Member States.
68. In the first place, it follows from that legislation that suppliers and certain consumers are required to hold on the annual due date a certain number of electricity certificates for the purposes of meeting their quota obligation, which depends on the total volume of electricity that they supply or consume.
69. However, in the absence, inter alia, of an international agreement to that effect, only certificates awarded under the national scheme can be used to meet 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 a specific fee.
70. Such measures are thus capable of impeding electricity imports from other Member States (see, inter alia, by analogy, Ligur Carni and Others , C‑277/91, C‑318/91 and C‑319/91, EU:C:1993:927, paragraph 36).
71. In the second place, the referring court notes both in its order and in its questions that, although green electricity producers may, in the context of the support scheme established by the legislation at issue in the main proceedings, trade their electricity certificates on an open, competitive market that is dedicated to that trade, there is nothing in that legislation to stop the producers from selling those certificates together with the electricity that they produce, as a package.
72. The existence of such a possibility seems capable in practice of facilitating the opening of negotiations and the establishment of contractual relationships — in some cases, on a long-term basis — concerning the supply of national electricity by those producers to suppliers or electricity users, the latter being able to obtain, in that way, both the electricity and the green certificates that they need in order to meet their quota obligation.
73. It follows that, to that extent also, the effect of the support scheme at issue in the main proceedings is, at least potentially, to curb electricity imports from other Member States (see, to that effect, Commission  v Ireland , 249/81, EU:C:1982:402, paragraphs 27 to 29).
74. In that context, it should in particular be noted that failure by a Member State to adopt adequate measures to prevent barriers to the free movement of goods that have been created, in particular, through the actions of traders but made possible by specific legislation that that State has introduced, is just as likely to obstruct intra-Community trade as is a positive act (see, to that effect, Commission  v France , C‑265/95, EU:C:1997:595, paragraph 31, and Schmidberger , C‑112/00, EU:C:2003:333, paragraph 58).
75. In the light of all the foregoing, it must be held 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 34 TFEU, unless that legislation can be objectively justified (see, to that effect, inter alia, Commission  v Austria , C‑320/03, EU:C:2005:684, paragraph 69).
The possible justification
76. 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 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 in order to attain that objective (see, inter alia, Commission  v Austria , C‑524/07, EU:C:2008:717, paragraph 54 and the case-law cited).
– The objective of promoting the use of renewable energy sources
77. 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, to that effect, Commission  v Austria , EU:C:2008:717, paragraph 57 and the case-law cited).
78. 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, to that effect, PreussenElektra , EU:C:2001:160, paragraph 73).
79. That being so, the increase in the use of renewable energy sources constitutes — as is explained, in particular, in recital 1 to 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 Community and international greenhouse gas emission reduction commitments beyond the year 2012.
80. As the Court has 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, to that effect, PreussenElektra , EU:C:2001:160, paragraph 75).
81. It is also clear from Article 194(1)(c) TFEU that the development of renewable energy is one of the objectives that must guide EU energy policy.
82. In the light of the foregoing considerations, it must be acknowledged that the objective of promoting the use of renewable energy sources for the production of electricity, such as the objective pursued by the legislation at issue in the main proceedings, is in principle capable of justifying barriers to the free movement of goods.
– Proportionality
83. As was noted in paragraph 76 above, in order for the national legislation to be capable of justification, it must nevertheless meet the requirements flowing from the principle of proportionality, that is to say, it must be appropriate for securing the attainment of the legitimate objective pursued and it must be necessary for those purposes.
86. It should be noted that the European Union subsequently adopted various legislative instruments whose purpose was gradually to dismantle those barriers so as to enable a fully operational internal market in electricity to be established, in which the cross-border trade in electricity within the European Union is intensified and all suppliers will be able to supply their goods and consumers will be free to choose their supplier. Particular examples of such instruments are: Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (OJ 2003 L 176, p. 37) and its successor, Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54 (OJ 2009 L 211, p. 55); and Regulation (EC) No 1228/2003 of the European Parliament and of the Council of 26 June 2003 on conditions for access to the network for cross-border exchanges in electricity (OJ 2003 L 176, p. 1) and its successor, Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation No 1228/2003 (OJ 2009 L 211, p. 15).
87. On the other hand, the finding made by the Court in paragraph 79 of the judgment in PreussenElektra  (EU:C:2001:160) — to the effect that the nature of electricity is such that, once it has been allowed into the transmission or distribution system, it is difficult to determine its origin and in particular the source of energy from which it was produced — remains valid.
94. However, since, in particular, EU law has not harmonised the national support schemes for green electricity, it is possible in principle for Member States to limit access to such schemes to green electricity production located in their territory.
95. First, 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.
97. It is also important to remember that, as is apparent from recitals 1 and 25 to Directive 2009/28 and Articles 3(1) and 5(1) and (3) thereof, and as was observed in relation to Question 1, in order to ensure the implementation of the international environmental commitments entered into by the European Union, the EU legislature has assigned the various Member States mandatory national targets formulated in terms of quotas for the production of green electricity.
98. Secondly, and in relation to the fact that the support scheme at issue in the main proceedings is designed to apply solely to green electricity production located in the national territory, it should be observed that, as was noted by the EU legislature in recital 15 to Directive 2009/28, the starting points, the renewable energy potential and the energy mix of each Member State vary, a fact which moved the EU legislature to consider it appropriate, taking into account those differences, to allocate among those States a fair and appropriate share of the effort required to satisfy the European Union’s international commitments.
99. Furthermore, as was also noted by the EU legislature in recital 25 to Directive 2009/28, it is essential, in order to ensure the proper functioning of the national support schemes, that Member States be able to ‘control the effect and costs of their national support schemes according to their different potentials’, while maintaining investor confidence.
103. In that regard, it need only be observed that a green energy support scheme, whose production costs seem — as the Swedish Government and the Commission, in particular, have maintained — to be still quite high as compared with the costs of electricity produced from non-renewable energy sources, is inherently designed to foster, from a long-term perspective, investment in new installations, by giving producers certain guarantees about the future marketing of their green electricity. Accordingly, the effectiveness of such a scheme requires by definition a measure of continuity sufficient, in particular, to ensure the fulfilment of the legitimate expectations of investors who have committed themselves to such projects, and the continued operation of those installations.
109. In those respects, it should be noted first that a national support scheme which, like the scheme at issue in the main proceedings, uses green certificates, is designed in particular to have the additional cost of producing green electricity borne directly by the market, that is to say, by the suppliers and users of electricity, who are required to meet the quota obligation, and, ultimately, by the consumers.
110. In choosing to do this, a Member State does not exceed the bounds of the discretion to which it remains entitled in the pursuit of the legitimate objective of increasing the production of green electricity.
111. 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.
112. The effect of that scheme in terms of offering an incentive for electricity producers in general — including, in particular, for 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.
113. 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.
114. 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 and users to obtain certificates under fair terms.
123. It should be noted, however, that the question whether — and, if so, to what extent — the restriction of the territorial scope of the legislation at issue in the main proceedings is apparent from the wording of that legislation pertains to the interpretation of that legislation and accordingly falls under the exclusive jurisdiction of the national courts (see, to that effect, inter alia, ČEZ , C‑115/08, EU:C:2009:660, paragraph 57 and the case-law cited).
125. It is settled case-law that where Member States adopt, in that way, measures by which they implement EU law, they are required to respect the general principles of that law, which include the principle of legal certainty (see, to that effect, inter alia, Plantanol , C‑201/08, EU:C:2009:539, paragraph 43 and the case-law cited, and IBV & Cie , C‑195/12, EU:C:2013:598, paragraph 49).
126. It is for the referring court to determine whether national legislation such as that at issue in the main proceedings is consistent with that principle, as the Court, when giving a preliminary ruling under Article 267 TFEU, has jurisdiction only to provide the national court with all the criteria for the interpretation of EU law which may enable it to determine the issue of compatibility (see, to that effect, inter alia, Plantanol , EU:C:2009:539, paragraph 45 and the case-law cited).
127. In that regard, it should be noted that, according to the Court’s established case-law, the principle of legal certainty requires, on the one hand, that rules of law be clear and precise and, on the other, that their application be foreseeable by those subject to them (see, inter alia, Plantanol , EU:C:2009:539, paragraph 46 and the case-law cited).
128. Specifically, in order to meet the requirements of that principle, legislation must enable those concerned to know precisely the extent of the obligations imposed on them, and those persons must be able to ascertain unequivocally their rights and obligations and take steps accordingly (see, inter alia, ArcelorMittal Luxembourg  v Commission and Commission  v ArcelorMittal Luxembourg and Others , C‑201/09 P and C‑216/09 P, EU:C:2011:190, paragraph 68 and the case-law cited).
129. As regards the territorial scope of the support scheme provided for under the national legislation at issue in the main proceedings, the referring court may, in order to determine whether the requirements of the principle of legal certainty are met, consider all relevant elements which emerge from the terms, objectives or general scheme of that legislation (see, by analogy, Mitsui & Co. Deutschland , C‑256/07, EU:C:2009:167, paragraph 32).