Green Network SpA v Autorità per l’energia elettrica e il gas.
Date: 2014-11-26
27. The words used in that last clause correspond to those by which the Court, in paragraph 22 of the judgment in Commission v Council (‘ ERTA ’, 22/70, EU:C:1971:32), defined the nature of the international obligations which Member States may not enter into outside the framework of the Community institutions, when common rules have been promulgated by the Community for the attainment of the objectives of the Treaty (see judgment in Commission  v Council , C‑114/12, EU:C:2014:2151, paragraph 66).
29. According to that case-law, there is a risk that common Community rules might be adversely affected by international commitments undertaken by Member States, or that the scope of those rules might be altered, which is such as to justify an exclusive external competence of the Community, when those commitments fall within the scope of those rules (see, inter alia, judgment in Commission  v Council , EU:C:2014:2151, paragraph 68 and the case-law cited, and Opinion 1/13, EU:C:2014:2303, point 71).
30. A finding that there is such a risk does not presuppose that the areas covered by the international commitments and those covered by the Community rules coincide fully (judgment in Commission  v Council , EU:C:2014:2151, paragraph 69 and the case-law cited, and Opinion 1/13, EU:C:2014:2303, point 72).
31. In particular, the scope of Community rules may be affected or altered by such commitments where the latter fall within an area already largely covered by such rules (judgment in Commission  v Council , EU:C:2014:2151, paragraph 70 and the case-law cited, and Opinion 1/13, EU:C:2014:2303, point 73).
32. In addition, the Member States may not, outside the framework of the Community institutions, enter into such commitments, even when there is no possible contradiction between those commitments and the common Community rules (judgment in Commission  v Council , EU:C:2014:2151, paragraph 71 and the case-law cited).
35. As a preliminary point, it should be recalled that Directive 2001/77 was adopted on the basis of Article 175 EC, whose provisions were reproduced in Article 192 TFEU, concerning Community environmental policy, which provided for powers shared between the Community and its Member States (see, inter alia, judgment in Commission  v Council , C‑370/07, EU:C:2009:590, paragraph 49).
38. By making the benefit of the advantage it confers on electricity importers subject to the prior conclusion of such an international agreement, a provision such as the first contested provision of national law sets in motion a process that could lead to such a conclusion actually being realised, which, as the Advocate General noted at points 83 to 85 of his Opinion, would be sufficient to affect the exclusive external competence of the Community, assuming it to have been established (see, to that effect, judgment in Commission  v Greece , C‑45/07, EU:C:2009:81, paragraphs 21 to 23).
51. It is true that Article 4 of Directive 2001/77 and recital 15 in the preamble to that directive make it clear that, while encouraging Member States to adopt such support schemes, that directive does not lay down a Community-wide framework for them (see judgment in IBV & Cie , C‑195/12, EU:C:2013:598, paragraph 63).
52. Accordingly, as regards the form that support schemes may take, recital 14 in the preamble to 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 (see judgment in IBV & Cie , EU:C:2013:598, paragraph 64).
53. Nor does Article 4 of that directive contain any specific indications as regards the content of the measures of support for renewable energy whose adoption is thus encouraged, apart from the indications that such measures are to contribute to attaining the objectives set out in Articles 6 EC and 174(1) EC (see judgment in IBV & Cie , EU:C:2013:598, paragraph 65).
54. It follows that Directive 2001/77 allows Member States considerable latitude for the purposes of the adoption and implementation of such support schemes (see, to that effect, judgment in IBV & Cie , EU:C:2013:598, paragraph 80).
56. Furthermore, Article 3(1) and (2) of Directive 2001/77, read in conjunction with the Annex thereto, make clear that 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 (see judgment in Essent Belgium , C‑204/12 to C‑208/12, EU:C:2014:2192, paragraph 67).
57. It follows, in particular, 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 (judgment in Essent Belgium , EU:C:2014:2192, paragraph 68).