Industrie du bois de Vielsalm & Cie (IBV) SA v Région wallonne.
Date: 2013-09-26
48. Moreover, it should be recalled that the principle of equal treatment and non‑discrimination enshrined in Articles 20 and 21 of the Charter in particular is addressed to the Member States when they are implementing European Union law, as follows especially from Article 51(1) of the Charter.
49. It follows that, where, as in the case in the main proceedings, a Member State adopts measures of support for cogeneration and renewable energy sources within a framework such as that laid down, first, by Directive 2004/8, in particular Article 7, and, secondly, by Directive 2001/77, in particular Article 4, and thus implements European Union law, it must observe the principle of equal treatment and non-discrimination laid down in particular in Articles 20 and 21 of the Charter (see, to that effect, Case C‑401/11 Soukupová  [2013] ECR I‑0000, paragraph 28).
50. According to settled case-law of the Court, the principle of equal treatment and non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Case C‑127/07 Arcelor Atlantique et Lorraine and Others  [2008] ECR I‑9895, paragraph 23; Case C‑176/09 Luxembourg  v Parliament and Council  [2011] ECR I‑3727, paragraph 31; and Case C‑21/10 Nagy  [2011] ECR I‑6769, paragraph 47).
51. A breach of the principle of equal treatment as a result of different treatment thus presupposes that the situations concerned are comparable, having regard to all the elements which characterise them (see, inter alia, Arcelor Atlantique et Lorraine and Others , paragraph 25). In their observations, the Polish Government and the Commission submitted that that condition was not satisfied in the present case.
52. It must be recalled that the elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in the light of the subject-matter and purpose of the European Union act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (see, inter alia, Arcelor Atlantique et Lorraine and Others , paragraph 26, and Luxembourg  v Parliament and Council , paragraph 32 and the case-law cited).
53. That approach must also prevail mutatis mutandis  in an examination of the compliance with the principle of equal treatment of national measures implementing European Union law.
56. According to recitals 1 and 2 in the preamble to 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.
59. Both the second subparagraph of Article 7(2) of Directive 2004/8 and Article 4(1) of Directive 2001/77 further state that the national support mechanisms provided for by those provisions are capable of contributing to attaining the objectives set out in Articles 6 EC and 174(1) EC.
60. Article 174(1) EC, which lists the objectives of European Union policy on the environment, 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.
61. Thirdly, as regards more specifically the choices to be made when drawing up the national support schemes for cogeneration and electricity production from renewable energy sources which Directives 2004/8 and 2001/77 aim to promote, it is clear from those directives that the Member States retain a broad margin of discretion in that respect.
62. It may be seen, to begin with, from recital 32 in the preamble to Directive 2004/8 that the directive aims to determine at European Union level the general principles providing a framework for the promotion of cogeneration in the internal energy market, while leaving the detailed implementation to the Member States, thus allowing each Member State to choose the regime which corresponds best to its particular situation, taking account in this respect, in accordance with Article 1 of the directive, of the specific national circumstances especially concerning climatic and economic conditions.
63. Moreover, while the Member States are encouraged, as is apparent from Articles 3(1) and 4 of Directive 2001/77, to take appropriate steps to encourage greater consumption of electricity produced from renewable energy sources, those steps including the support schemes adopted at national level, recital 15 in the preamble to that directive shows that the directive does not lay down a Community-wide framework for those schemes.
64. Next, as regards the form that may be taken by support schemes, recital 26 in the preamble to Directive 2004/8 and recital 14 in the preamble to Directive 2001/77 confine themselves to listing the various forms which the Member States generally have recourse to in that connection, namely green certificates, investment aid, tax exemptions or reductions, tax refunds and direct price support schemes.
65. Finally, as regards the content of cogeneration support schemes, Article 7(1) of Directive 2004/8 is limited to specifying that the Member States are to ensure that the support they grant is based on the useful heat demand and primary energy savings, in the light of opportunities available for reducing energy demand through other economically feasible or environmentally advantageous measures such as other energy efficiency measures. As for Article 4(1) of Directive 2001/77, it does not contain any specific indication as regards the measures of support for renewable energy whose adoption is encouraged, apart from the reference, noted in paragraph 59 above, to the contribution of such measures to attaining the objectives set out in Article 174 EC.
70. As noted in paragraph 62 above, it follows, moreover, from Article 1 of Directive 2004/8 and recital 32 in its preamble that the detailed implementation of the directive is left to the Member States, thus allowing each Member State to choose the scheme which ‘corresponds best to its particular situation’, taking into account ‘specific national circumstances especially concerning climatic and economic conditions’.
80. Having regard to all the foregoing, it must be considered that, in the light in particular of the objectives pursued by Directives 2001/77 and 2004/8 and the aims of the European Union in the field of the environment, and of the broad margin of discretion allowed to the Member States by those directives for the adoption and implementation of support schemes intended to promote cogeneration and electricity production from renewable energy sources, and having regard to the individual characteristics of the various categories of biomass capable of use in a cogeneration process, those categories must not be regarded in the context of such support schemes as being in a comparable situation for the purposes of the possible application of the principle of equal treatment, observance of which is ensured by European Union law.
81. The need to be able to treat those various categories of biomass differently and, in particular, in the light of various environmental considerations, to make choices as to the types of substances to benefit from support and to draw distinctions as regards the specific details of that support, including the amount of the support, must on the contrary be regarded as inherent in that context, without it being possible to consider, in the present state of European Union law, that by taking the view that those various categories of biomass are not in the same situation the Member States manifestly exceeded the limits of their broad discretion in the matter (see, by analogy, Luxembourg  v Parliament and Council , paragraphs 50 and 51).