Case C‑492/14

Essent Belgium NV

v

Vlaams Gewest and Others

(Request for a preliminary ruling from the Nederlandstalige rechtbank van eerste aanleg te Brussel)

(Reference for a preliminary ruling — Regional legislation requiring the distribution, through the systems located in the region concerned, of electricity produced from renewable energy sources to be free of charge — Different treatment depending on the origin of the green electricity — Articles 28 EC and 30 EC — Free movement of goods — Directive 2001/77/EC — Articles 3 and 4 — National support mechanisms for the production of green energy — Directive 2003/54/EC — Articles 3 and 20 — Directive 96/92/EC — Articles 3 and 16 — Internal market in electricity — Access to distribution systems on non-discriminatory tariff conditions — Public service obligations — Lack of proportionality)

Summary — Judgment of the Court (Second Chamber), 29 September 2016

1.        Questions referred for a preliminary ruling — Admissibility — Request failing to explain the reasons for the reference to the Court — Inadmissible

(Art. 267 TFEU; Rules of Procedure of the Court of Justice, Art. 94(c))

2.        Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of the relevant points of EU law — No reference in the request for a preliminary ruling — No effect

(Art. 267 TFEU)

3.        Free movement of goods — Quantitative restrictions — Measures having equivalent effect — Regional legislation imposing a scheme for the free distribution of green electricity through the distribution systems in a particular region — Benefit of that scheme limited solely to green electricity fed, by the generating installations, directly into those systems or into distribution systems in the Member State to which that region belongs — Not permissible — Breach of principle of proportionality

(Arts 28 EC and 30 EC; European Parliament and Council Directive 2003/54, Arts 3(2) and (8) and 20(1); European Parliament and Council Directive 96/92, Arts 3(2) and (3) and 16; European Parliament and Council Directive 2001/77, Arts 3 and 4)

1.      See the text of the decision.

(see paras 40-42)

2.      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 para. 43)

3.      The provisions of Articles 28 and 30 EC, and of Article 3(2) and (8) and Article 20(1) of Directive 2003/54 concerning common rules for the internal market in electricity and repealing Directive 96/92, Articles 3(2) and (3) and 16 of Directive 96/92 concerning common rules for the internal market in electricity, and Articles 3 and 4 of Directive 2001/77 on the promotion of electricity produced from renewable energy sources in the internal electricity market, read in conjunction with each other, must be interpreted as precluding regional legislation imposing a scheme for the free distribution of green electricity through the distribution systems in the region concerned, while limiting the benefit of that scheme either solely to green electricity fed directly into those distribution systems by the generating installations or solely to green electricity fed directly by such installations into the distribution systems in the Member State to which that region belongs.

Although such legislation applies in the same way to all electricity suppliers using a distribution system that is located in the region concerned, it nevertheless does not lead to any exemption from the fees for the distribution of electricity delivered by those suppliers except where that electricity is green electricity fed directly into such a system or into a distribution system located in the Member State to which that region belongs, and therefore results in electricity suppliers being treated differently, depending in particular on the origin of the green electricity being marketed by those suppliers. Neither Article 11(3) of Directive 96/92 nor Article 14(4) of Directive 2003/54 can be invoked as such in order to justify such a difference in treatment.

Moreover, the public service obligations established under Article 3(2) of Directive 96/92 and Article 3(2) of Directive 2003/54 must not be discriminatory and must also guarantee equality of access for EU electricity companies to national consumers. That difference in treatment is liable in particular to affect equality of access for EU electricity companies to national consumers within the meaning of Article 3(2) of Directive 2003/54.

Lastly, such legislation is capable of hindering — at least indirectly and potentially — imports of electricity, especially green electricity, from other Member States. 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.

As regards respect for the principle of proportionality, while it is possible in principle for Member States to limit access to such schemes to green electricity production located in their territory, it is not the purpose of the scheme for the free distribution of green electricity established by such national legislation, unlike the national support schemes for green electricity in the form of purchase obligations or green certificates, to give direct support to producers of green electricity. The free distribution of green electricity constitutes a financial advantage conferred primarily on the supplier of such electricity, which may, in certain circumstances, depending notably on the sale price which the consumer is charged by the supplier for his electricity, to a certain extent and indirectly also benefit the consumer.

By contrast, such a support mechanism offers no certainty that the economic advantage thus obtained for suppliers will ultimately actually and essentially be required to benefit producers of green electricity, particularly the smallest local generating installations covered by the support measures, which are not both producers and suppliers. The benefit that such green electricity producers may derive from that economic advantage will depend on various factors specific to the markets, such as, for example, electricity prices on the market, supply and demand, or the balance of power between the operators involved and the extent to which suppliers will be prepared to allow producers to benefit from that advantage. In view of what is the indirect, uncertain and risky nature of any support that might flow for the green electricity producer himself from such a free distribution scheme, the genuine ability of that scheme to achieve the legitimate objective pursued, which is to create an effective incentive for operators to produce more green electricity notwithstanding the additional costs of production, thus contributing to the Member States’ achievement of the indicative production targets imposed on them under Article 3 of Directive 2001/77, has not been established. It follows that that legislation does not satisfy the requirements arising under the principle of proportionality, and that the interference with third-party free access to distribution systems on terms that are non-discriminatory, and with the free movement of goods, cannot, therefore, be justified by that objective.

(see paras 82, 83, 87, 89, 90, 97, 98, 111-117, 119 and operative part)