Legatoria Editoriale Giovanni Olivotto (L.E.G.O.) SpA v Gestore dei servizi energetici (GSE) SpA and Others.
Date: 2018-10-04
28


It is apparent from Article 17 of Directive 2009/28, read in the light of recitals 65 and 67 thereof, that the EU legislature intended, by taking as its basis Article 114 TFEU, in particular, to harmonise the sustainability criteria which it is mandatory for biofuels and bioliquids 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 that directive; measuring their compliance with renewable energy obligations; and eligibility for national financial support for the consumption of biofuels and bioliquids (see, to that effect, judgment of 22 June 2017, E.ON Biofor Sverige, C‑549/15, EU:C:2017:490, paragraph 28).
29


Harmonisation of those sustainability criteria is 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 and bioliquids which fulfil the sustainability criteria set out in that article (see, to that effect, judgment of 22 June 2017, E.ON Biofor Sverige, C‑549/15, EU:C:2017:490, paragraph 32).
43


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 the 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 (judgment of 22 June 2017, E.ON Biofor Sverige, C‑549/15, EU:C:2017:490, paragraph 72 and the case-law cited).
45


In the first place, it must be noted that, while Directive 2009/28 uses the concept of an ‘economic operator’, it does not define it. Bearing in mind the general way in which the criteria set out in Article 18(1)(a) to (c) of the directive are worded, the Court has already held that that provision has not fully harmonised the verification system connected with the mass balance system. Provided there is compliance with the general requirements set out in Article 18(1)(a) to (c), Member States therefore retain a wide discretion when they must determine, more precisely, the specific conditions under which the economic operators concerned will use such a system (see, to that effect, judgment of 22 June 2017, E.ON Biofor Sverige, C‑549/15, EU:C:2017:490, paragraphs 40 and 77).
52


It should be recalled, from the outset, 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 (judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 57).
53


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 (judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 59).
54


Furthermore, as is clear from paragraph 45 of the present judgment, Article 18 of Directive 2009/28 has not achieved exhaustive harmonisation for the verification system connected with the mass balance system, so that Member States retain a wide discretion when they implement that article. In doing so, they must still comply with Article 34 TFEU (see to that effect, judgment of 22 June 2017, E.ON Biofor Sverige, C‑549/15, EU:C:2017:490, paragraph 78).
58


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 (judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 66 and the case-law cited).
59


Obstacles to the free movement of goods resulting, in the absence of harmonisation of national legislations, from the application by a Member State to goods coming from other Member States, in which they are lawfully manufactured and marketed, of rules relating to conditions with which those goods must comply, even if those rules apply without distinction to all products, must constitute measures having equivalent effect to quantitative restrictions on imports within the meaning of Article 34 TFEU (see, to that effect, judgment of 22 September 2016, Commission v Czech Republic, C‑525/14, EU:C:2016:714, paragraph 35).
62


Accordingly, national legislation constitutes a measure having equivalent effect to quantitative restrictions on imports and is thus in principle incompatible with Article 34 TFEU, unless that legislation can be objectively justified (see, by analogy, judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 75).
63


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 (judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 76).
64


In that regard, according to settled case-law of the Court, national measures that are capable of hindering intra-EU trade may inter alia be justified by overriding requirements relating to protection of the environment. 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, judgment of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160, paragraph 73; of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraphs 77, 78 and 82; and of 22 June 2017, E.ON Biofor Sverige, C‑549/15, EU:C:2017:490, paragraphs 85 to 88).
65


As a consequence, national provisions such as those at issue, which promote the use of renewable energy sources, also contribute 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 (see, to that effect, judgment of 22 June 2017, E.ON Biofor Sverige, C‑549/15, EU:C:2017:490, paragraph 89).
67


According to settled case-law of the Court, national measures capable of hindering intra-Community trade may be justified by the objective of protection of the environment and combating fraud provided that the measures in question are proportionate to the aim pursued (judgment of 6 October 2011, Bonnarde, C‑443/10, EU:C:2011:641, paragraph 34).
68


As is clear from paragraph 63 of the present judgment, it is therefore necessary to be sure whether national legislation, such as that in the main proceedings, meets the requirements flowing from the principle of proportionality, that is to say, whether it is appropriate for securing the attainment of the legitimate objective pursued and whether it is necessary for those purposes (see, to that effect, judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 83).