Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 11 January 2024 (1)
Case C‑624/22
Société BP France
v
Ministre de l’Économie, des Finances et de la Souveraineté industrielle et numérique
(Request for a preliminary ruling from the Conseil d’État (Council of State, France))
(Preliminary-ruling proceedings – Directive (EU) 2018/2001 – Promotion of the use of energy from renewable sources – Production of fuel through co-processing – Evidence of compliance with the sustainability criteria – Mass balance method – Methods for assessing the proportion of hydrotreated vegetable oils in co-processed fuel—Radiocarbon C‑14 method)
1. The French legislature created an incentive tax (2) on the incorporation of green fuels (biofuels). The aim of that tax is to ensure that, in the transport sector, the share of energy from renewable sources reaches a level compatible with the European Union’s objectives as regards sustainability and the effective reduction of greenhouse gas emissions.
2. In order to justify the amount of energy from renewable sources which is taken into account when calculating that tax, the French provision requires that imported biofuels are to undergo a radiocarbon C‑14 analysis. (3) That analysis makes it possible to verify the actual proportion of molecules of biogenic origin contained in fuels produced by means of the co-processing technique.
3. This reference for a preliminary ruling concerns the compatibility with EU law of the national measure described, in so far as it may not be compatible with the verification methods laid down in the Directives on the promotion of the use of energy from renewable sources and may also be contrary to Article 34 TFEU.
4. The Court already has useful case-law (4) on the use of the so-called mass balance (‘MB’) method for establishing compliance with the sustainability criteria for biofuels, laid down in Articles 17 and 18 of Directive 2009/28/EC. (5) That case-law may be applied to the new Directive (EU) 2018/2001, (6) but it will need to be supplemented in order to answer the referring court’s questions in a highly technical area.
I. Legal framework
A. European Union law
1. Directive 2018/2001
5. Paragraph 1 of Article 25 (‘Mainstreaming renewable energy in the transport sector’) provides:
‘In order to mainstream the use of renewable energy in the transport sector, each Member State shall set an obligation on fuel suppliers to ensure that the share of renewable energy within the final consumption of energy in the transport sector is at least 14% by 2030 (minimum share) in accordance with an indicative trajectory set by the Member State …’
6. Paragraph 5 of Article 28 (‘Other provisions on renewable energy in the transport sector’) provides:
‘By 31 December 2021, the Commission shall adopt delegated acts in accordance with Article 35 to supplement this Directive by specifying the methodology to determine the share of biofuel, and biogas for transport, resulting from biomass being processed with fossil fuels in a common process, and by specifying the methodology for assessing greenhouse gas emissions savings from renewable liquid and gaseous transport fuels of non-biological origin and from recycled carbon fuels, which shall ensure that credit for avoided emissions is not given for CO2 the capture of which has already received an emission credit under other provisions of law.’
7. In accordance with Article 29 (‘Sustainability and greenhouse gas emissions saving criteria for biofuels, bioliquids and biomass fuels’):
‘1. Energy from biofuels, bioliquids and biomass fuels shall be taken into account for the purposes referred to in points (a), (b) and (c) of this subparagraph only if they fulfil the sustainability and the greenhouse gas emissions saving criteria laid down in paragraphs 2 to 7 and 10:
(a) contributing towards the Union target set in Article 3(1) and the renewable energy shares of Member States;
(b) measuring compliance with renewable energy obligations, including the obligation laid down in Article 25;
(c) eligibility for financial support for the consumption of biofuels, bioliquids and biomass fuels.
…
The sustainability and the greenhouse gas emissions saving criteria laid down in paragraphs 2 to 7 and 10 shall apply irrespective of the geographical origin of the biomass.
…
12. For the purposes referred to in points (a), (b) and (c) of the first subparagraph of paragraph 1 of this Article, and without prejudice to Articles 25 and 26, Member States shall not refuse to take into account, on other sustainability grounds, biofuels and bioliquids obtained in compliance with this Article. This paragraph shall be without prejudice to public support granted under support schemes approved before 24 December 2018.
…’
8. Pursuant to Article 30 (‘Verification of compliance with the sustainability and greenhouse gas emissions saving criteria’):
‘1. Where biofuels, bioliquids and biomass fuels, or other fuels that are eligible for counting towards the numerator referred to in point (b) of Article 27(1), are to be taken into account for the purposes referred to in Articles 23 and 25 and in points (a), (b) and (c) of the first subparagraph of Article 29(1), Member States shall require economic operators to show that the sustainability and greenhouse gas emissions saving criteria laid down in Article 29(2) to (7) and (10) have been fulfilled. For those purposes, they shall require economic operators to use a mass balance system which:
(a) allows consignments of raw material or fuels with differing sustainability and greenhouse gas emissions saving characteristics to be mixed for instance in a container, processing or logistical facility, transmission and distribution infrastructure or site;
(b) allows consignments of raw material with differing energy content to be mixed for the purposes of further processing, provided that the size of consignments is adjusted according to their energy content;
(c) requires information about the sustainability and greenhouse gas emissions saving characteristics and sizes of the consignments referred to in point (a) to remain assigned to the mixture; and
(d) provides for the sum of all consignments withdrawn from the mixture to be described as having the same sustainability characteristics, in the same quantities, as the sum of all consignments added to the mixture and requires that this balance be achieved over an appropriate period of time.
The mass balance system shall ensure that each consignment is counted only once in point (a), (b) or (c) of the first subparagraph of Article 7(1) for the purposes of calculating the gross final consumption of energy from renewable sources and shall include information on whether support has been provided for the production of that consignment, and if so, on the type of support scheme.
…
3. Member States shall take measures to ensure that economic operators submit reliable information regarding the compliance with the greenhouse gas emissions savings thresholds set in, and adopted pursuant to, Article 25(2), and with the sustainability and greenhouse gas emissions saving criteria laid down in Article 29(2) to (7) and (10), and that economic operators make available to the relevant Member State, upon request, the data that were used to develop the information. Member States shall require economic operators to arrange for an adequate standard of independent auditing of the information submitted, and to provide evidence that this has been done. …
…
4. The Commission may decide that voluntary national or international schemes setting standards for the production of biofuels, bioliquids or biomass fuels, or other fuels that are eligible for counting towards the numerator referred to in point (b) of Article 27(1), provide accurate data on greenhouse gas emission savings for the purposes of Article 25(2) and Article 29(10), demonstrate compliance with Article 27(3) and Article 28(2) and (4), or demonstrate that consignments of biofuels, bioliquids or biomass fuels comply with the sustainability criteria laid down in Article 29(2) to (7). …
…
9. Where an economic operator provides evidence or data obtained in accordance with a scheme that has been the subject of a decision pursuant to paragraph 4 or 6 of this Article, to the extent covered by that decision, a Member State shall not require the supplier to provide further evidence of compliance with the sustainability and greenhouse gas emissions saving criteria laid down in Article 29(2) to (7) and (10).
…’
2. Delegated Regulation (EU) 2023/1640 (7)
9. Although it is not applicable ratione temporis to this dispute, Delegated Regulation 2023/1640 provides a number of elements which may be useful for the purposes of adjudicating on it.
10. In accordance with recital 4 thereof:
‘In order to achieve a balance between verification costs and accuracy of tests, the delegated act allows economic operators either to use a common harmonised testing method, based on radiocarbon (14C) testing, or to use their own testing methods, which may be company-specific or process-specific. However, to ensure that a common verification method is applied on the market, economic operators using a method other than the radiocarbon (14C) testing as the main testing method should regularly use radiocarbon (14C) testing of the outputs to verify the correctness of the main testing method used. Furthermore, in order to allow economic operators to get accustomed to the application of the radiocarbon (14C) testing in combination with another testing method as main method, some flexibility about the acceptable percentage of deviation between the results of both main and second verification tests is allowed within the first year of application of this methodology.’
B. French law
1. Customs Code
11. Pursuant to Article 266 quindecies: (8)
‘I. – Persons liable for the domestic tax on consumption provided for in Article 265 shall be liable for an incentive tax on the incorporation of biofuels.
…
III. – The incentive tax on the incorporation of biofuels shall be levied on the total volume of petrol and diesel, respectively, in respect of which the tax became chargeable during the calendar year.
The amount of tax shall be calculated separately for petrol, on the one hand, and for diesel, on the other.
That amount shall be equal to the product of the basis of assessment set out in the first paragraph of Section III by the tariff fixed in Section IV, to which a coefficient equal to the difference between the national target for the share of energy from renewable sources in transport, fixed in Section IV, shall be applied, and the proportion of renewable energy in products included in the basis of assessment. If the proportion of renewable energy is greater than or equal to the national target for the share of energy from renewable sources in transport, the tax shall be zero.
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V. – A. – The share of renewable energy shall determine the proportion, assessed in net calorific value, of energy produced from renewable sources which that taxable person may justify as being contained in the fuel included in the basis of assessment … The energy contained in biofuels shall be renewable where the biofuels fulfil the sustainability criteria set out in Article 17 of Directive 2009/28 … in the version in force on 24 September 2018.
A bis. – Only the energy contained in products, the traceability of which has been guaranteed since production, shall be taken into account.
A decree shall determine the traceability methodology applicable to each product according to the raw material from which the product is derived and the accounting rules applicable to energy under section V.
…’
2. Decree No 2019-570 on the incentive tax on the use of renewable energy in transport (9)
12. Pursuant to Article 3, for the application of Article 266 quindecies (V)(A) of the Customs Code, persons liable for tax must provide evidence that the taxable fuels contain energy produced from renewable sources, in particular by means of stock accounts for monitoring renewable energy.
13. Under Article 4, stock accounts must reflect ‘the movement of eligible product quantities held, taking into account, in particular, incorporations, transfers, acquisitions and exits of energy as evidenced by certificates’.
14. In accordance with Article 7, stock accounts must indicate the designation and quantity of eligible products consisting of renewable energy, whether or not incorporated in taxable fuels, and ‘the information necessary for monitoring renewable energy identified by the Customs and Indirect Taxation Authority’.
15. Under Article 8, the existence of stock accounts for monitoring renewable energy is evidenced by a stamp from the customs authorities.
3. Circular of 18 August 2020 concerning the TIRIB (10)
16. The Circular informs operators and administrative services of the detailed rules for the application of the TIRIB.
17. Chapter IV (‘Procedures for monitoring eligible products for a reduction in the rate of the TIRIB’) includes a section (V) on keeping stock accounts, of which Paragraph A (‘Taking into account actual biofuel content when recorded in the stock accounts kept for the purposes of the TIRIB’) includes points 109 to 115, which are worded as follows:
‘[109] ‘The input volume of eligible products registered in the stock accounts kept for the purposes of the TIRIB must correspond to the volume recognised by the customs authorities on the arrival of the product in a UE [(11)] or an EFS. [(12)] Generally, the volumes are recorded on the accompanying documents (DAU, DAE, DSA or DSAC).
In respect of consignments of fuel containing biofuel received into a UE or an EFS, a laboratory analysis must be carried out on the basis of a sample taken when the consignment of fuel in question is unloaded, making it possible to determine the actual biofuel content of the product received. That analysis must be carried out for all types of biofuel.
[110] The documents accompanying the consignments of fuel containing biofuels must indicate the actual volume of the product supplied and the actual volume of biofuel contained in the fuel delivered. If the documents accompanying the fuel consignments indicate a volume of biofuel that is inconsistent with the physical analysis carried out in a laboratory, only the volume of biofuel actually contained in the fuel received determined under the physical analysis carried out upon entry of the product into the tax warehousing facility may be entered in the stock accounts. …
[111] For hydrotreated vegetable oils (petrol or diesel type), the C‑14 laboratory analysis must correspond to the volume indicated on the accompanying documents +/- 10%.
…
[114] That analysis shall be mandatory, first, for each entry of fuel containing biofuels for the year 2020 for each supplier, then for each new supplier. If the physical analysis shows a volume of biofuel that is consistent with the volume indicated in the accompanying document, physical analysis in respect of future deliveries from that supplier shall no longer be mandatory but may be carried out at random at the request of the customs authorities.
The laboratory analysis shall concern imports, intra-Community and national supplies of fuel containing biofuels upon receipt into the first French tax warehousing facility.
[115] The sole aim of that physical analysis is to determine the volume of biofuels received in the UE or the EFS for the purpose of recording that volume in the accounting entries for materials kept within the framework of the TIRIB. That analysis is not intended to determine the raw material from which the biofuel was produced. The raw material must be indicated on the documents accompanying the consignment and, in particular, on the sustainability certificate. That raw material may be determined by means of the mass balance method recognised by the voluntary sustainability systems.’
II. Facts, dispute and questions referred for a preliminary ruling
18. BP France imports into France fuel containing hydrotreated vegetable oil (‘HVO’), (13) produced in Spain by means of the co-processing technique.
19. Co-processing involves the blending of vegetable oils with fossil materials in refineries – upstream of the desulphurisation process – so that those vegetable oils are transformed into HVOs via the use of hydrogen.
20. Fuel co-processed in that way is then delivered to a tax warehousing facility in France before being released for consumption.
21. BP France applied to the Conseil d’État (Council of State, France) for the annulment of the TIRIB Circular. It contended, inter alia, that that circular requires HVOs to undergo a laboratory analysis in order to determine the actual bio-based molecule content on receipt of the HVO in the first French tax warehousing facility.
22. BP France put forward, in summary, the following arguments in support of its action:
– The TIRIB Circular is incompatible with the objectives of Directives 2009/28 and 2018/2001, in that it requires an economic operator to provide evidence of compliance (with the sustainability criteria in respect of biofuels included in the basis of assessment of the tax) other than that required by the directives.
– The purpose of the obligation to carry out a physical analysis at the time when fuel containing biofuels enters a French tax warehousing facility is to determine the actual biogenic molecule content of the consignment in question. (14)
– In view of the random distribution of biogenic molecules in the flow of fossil materials resulting from the co-processing, the content measured is likely to differ from that appearing on the accompanying documents for the consignment in question by more than the 10% allowed under paragraph 111 of the TIRIB Circular. Taking the content measured into account, instead of the content indicated on the accompanying document, may result in a smaller reduction in the TIRIB.
– In so far as the refinery which produces the biofuels participates in a voluntary system recognised by the European Commission as being a comprehensive system, the MB method provided for by Directives 2009/28 and 2018/2001 is sufficient to assess, for the purposes of keeping stock accounts specific to the TIRIB, the biogenic molecule content of the fuels which that company imports into the French tax warehousing facility.
23. The defendant administrative authority argued that the sole purpose of using a physical analysis is to determine the volumes of biofuel received at the first French tax warehousing facility before recording that volume as input in the stock accounts kept specifically for the TIRIB. This is intended to ensure that the eligible products for the purposes of the reduction of the TIRIB correspond to the quantities of biofuels actually delivered in France.
24. The defendant administrative authority adds that this enables the French State to achieve the target share of energy from biofuel in the transport sector set by Directive 2009/28. The analysis required by the TIRIB Circular is not intended to determine the raw material from which the biofuel was produced or to verify that it meets the sustainability criteria laid down by Directives 2009/28 and 2018/2001.
25. Against that background, the Conseil d’État (Council of State) has referred the following questions to the Court of Justice for a preliminary ruling:
‘(1) Must the provisions of Articles 17 and 18 of Directive [2009/28] and Article 30 of Directive 2018/2001 be interpreted as meaning that the monitoring mechanisms under the mass balance approach, and the national or voluntary systems which they lay down, are intended only to assess and to justify the sustainability of the raw materials and biofuels, and mixtures of them, and are not therefore intended to regulate the monitoring and traceability, in finished products resulting from the co-processing procedure, of the share of energy from renewable sources contained in those products and consequently to harmonise consideration of the share of energy contained in such products for the purposes referred to in Article 17(1)(a), (b) and (c) of Directive [2009/28], and Article 25 and Article 29(1), first subparagraph, (a), (b) and (c) of Directive 2018/2001?
(2) If the first question is answered in the negative, do those provisions preclude a Member State, in order to set the volume of HVO to be retained as input to the stock accounts which operators must maintain for the purposes of determining an incentive tax on the incorporation of biofuels paid in that State when the share of renewable energy in fuel released for consumption during the calendar year is lower than the national target for the share of renewable energy in transport, from requiring, upon entry into the first national tax warehousing facility in relation to imports of fuel containing HVO produced in another Member State under a co-processing procedure, a physical analysis of the HVO content of such fuel to be carried out, including where the installation in which the fuel was produced uses a mass balance approach which is certified by a voluntary system recognised by the Commission as being a comprehensive system?
(3) Does EU law, in particular the provisions of Article 34 TFEU, [preclude] a measure adopted by a Member State such as that described in paragraph 14 above, where, on the one hand, fuel containing biofuel produced by means of the co-processing procedure carried out within a refinery located on the national territory of that Member State is not subject, when it is released for consumption in that Member State directly on leaving the installation, to such a physical analysis, and where, on the other, the Member State agrees, in order to determine, upon exit from a [production facility under a duty suspension arrangement] or national tax warehousing facility, the biofuel content which may be allocated for tax purposes between content certificates issued for a given period, to evaluate, on the basis of the [facility]’s average monthly incorporation rate, the biofuel content of exports or releases from consumption in sectors other than transport?’
III. Procedure before the Court
26. The request for a preliminary ruling was received at the Court on 30 September 2022.
27. Written observations were lodged by BP France, the Austrian, French and Netherlands Governments, and the Commission. All of the former took part in the hearing held on 25 October 2023.
IV. Assessment
A. Preliminary points
1. The applicable directive
28. Directive 2018/2001 entered into force on 24 December 2018 and repealed Directive 2009/28 with effect from 1 July 2021. (15) The referring court asks the Court of Justice about the interpretation of both directives, from which I conclude that, for reasons relating to domestic law, it considers Directive 2018/2001 to be applicable to the dispute.
29. If that is the case, it seems to me to be sufficient for the Court to rule only on Directive 2018/2001, Articles 29 and 30 of which are essentially the same as Articles 17 and 18 of Directive 2009/28. The Court’s interpretation of the provisions of Directive 2018/2001 would, in any event, be applicable to the associated provisions of Directive 2009/28.
2. Biofuel production
30. For a proper understanding of the dispute it is necessary to explain briefly, based on the information available in the case file, how biofuels (16) are produced through the co-processing technique and the methods for determining the percentage of bio-based molecules present in the end product.
31. There are industrial plants which are engaged solely in the production of biofuel (biorefineries), where the problem of blending such fuel with materials of fossil origin does not arise. However, there are also plants, such as the plant in Castellón (Spain) from which BP France imports biofuel into France, which use the co-processing technique to process biomass and fossil feedstock together in a common process.
32. Through co-processing, a refinery processes biomass feedstock (17) and fossil feedstock (which tends to be of petroleum origin) and transforms them into final fuels. (18) Fuels co-processed in this way must contain a share of biofuels. (19)
33. The end product obtained through co-processing is composed, therefore, of molecules of fossil origin plus molecules of biogenic origin, without it being technically possible to separate one from the other. The end product must certainly contain a certain proportion of biofuels but it is difficult to determine the amount of these.
34. It is possible to monitor accurately the exact amount of industrial process input biomass at the refinery (by keeping records of materials) but it is difficult to determine with the same degree of accuracy the process output amount corresponding to biomass in a particular batch.
35. The reason for that difficulty is that the flow of material during the refining process leads to a random distribution of molecules of biogenic origin. Accordingly, a particular batch resulting from co-processing may have a higher concentration of biofuels than another.
36. The most accurate scientific method for measuring the quantity of molecules of biogenic origin in co-processed fuels appears to be the C‑14 method. That explains why the Commission required its use when it adopted Delegated Regulation 2023/1640 which, as I have already pointed out, is not applicable ratione temporis to these proceedings.
B. Question 1
37. The referring court seeks to ascertain, essentially, whether the MB method provided for in Article 30 of Directive 2018/2001: (a) is used only to determine the sustainability of raw materials, biofuels and mixtures of these; or (b) is also intended to ensure the monitoring and traceability of the share of renewable energy contained in the end product resulting from co-processing.
38. The aim of Directive 2018/2001 is to promote the use of renewable energy, for which purpose Member States:
– Are to collectively ensure that the share of energy from renewable sources in the gross final consumption of energy in 2030 is at least 32% (Article 3(1)).
– Must impose on ‘fuel suppliers’ the obligation to increase the minimum share of renewable energy within the final consumption of energy in the transport sector to 14% (Article 25(1)). One way of reaching that threshold is to encourage the use of biofuels.
39. Articles 29 and 30 of Directive 2018/2001 contain, respectively, the sustainability and greenhouse gas emissions saving criteria for biofuels, bioliquids and biomass fuels (Article 29) and the rules on verification of compliance with those criteria (Article 30).
40. Directive 2009/28 provided for exhaustive harmonisation of the sustainability criteria, which was retained by Directive 2018/2001. Consequently, Member States may not introduce further criteria or cease to use any of those laid down in Article 17 of Directive 2009/28. (20)
41. For the purposes of establishing compliance with those sustainability criteria, where this is necessary under Article 30 of Directive 2018/2001, (21) the EU legislature opted for the MB method, (22) provided that the conditions set out in that provision are fulfilled.
42. The MB method establishes a chain of custody from production to placing on the market and is based on a documentation and counting system with independent controls. It is, therefore, one of the ‘… verification mechanisms intended to ensure the correct application of Article 17 of [Directive 2009/28] [equivalent to Article 29 of Directive 2018/2001]’ (23) or, which amounts to the same thing, of the sustainability criteria for biofuels.
43. The Court had occasion to refer to that method in the judgment in E.ON Biofor Sverige, pointing out that it was chosen in order to ‘… ensure that, between the moment of production of sustainable biofuel and that of its consumption, such a physical link remains in place. … the EU legislature has, furthermore, also pointed out that the application of the mass balance system to verify compliance should maintain the integrity of the system while at the same time avoiding the imposition of an unreasonable burden on industry.’ (24)
44. Under Article 30(4) of Directive 2018/2001, monitoring of the application of the MB method may be carried out by voluntary national or international schemes, which are approved by the Commission (25) and which set standards for the production of biofuels, bioliquids or biomass fuels capable of demonstrating compliance with the sustainability criteria laid down in Article 29(2) to (7). (26)
45. As the Netherlands Government points out, those voluntary schemes may be recognised by the Commission only if they apply an MB method. (27)
46. In this case, the refinery from which BP France imports biofuels applies a voluntary scheme (28) recognised by the Commission (29) to demonstrate compliance with the sustainability criteria laid down in Directive 2018/2001.
47. That voluntary scheme uses an MB methodology in accordance with the requirements of Article 30(1) and (2) of Directive 2018/2001. That is apparent from recital 6 of Implementing Decision 2022/602. However, that decision says nothing about the possibility of using the ISCC EU voluntary scheme to determine the proportion of molecules of biogenic origin in a fuel produced by co-processing.
48. I agree with the Commission and the French, Netherlands and Austrian Governments that Article 30 of Directive 2018/2001 merely stipulates that the MB method is suitable for verifying compliance (by biofuels) with the sustainability criteria in that directive but not for demonstrating how many molecules of biogenic origin are contained in co-processed fuels.
49. There is nothing in Article 30 of Directive 2018/2001 to suggest that the MB method is to be used to establish the proportion of molecules of biogenic origin present in a fuel produced by co-processing. The Commission decisions on the recognition of voluntary schemes do not refer to the use of the MB method for those purposes either. (30)
50. The MB method makes it possible to account for biofuel entering a refinery and to attribute to the fuel produced a proportionate share of sustainability. According to the information provided to the Court, that method is not suitable for measuring the exact proportion of molecules of biogenic origin in each batch obtained from co-processing.
51. Owing to that limitation of the MB method, Article 28(5) of Directive 2018/2001 tasked the Commission with the adoption of a delegated act specifying the methodology for determining the share of biofuel and biogas for transport resulting from biomass being processed with fossil fuels.
52. In compliance with that instruction, the Commission adopted Delegated Regulation 2023/1640 which, as I stated above, although not applicable ratione temporis to this dispute (it entered into force on 8 September 2023), may provide some interpretative guidelines for Directive 2018/2001.
53. Delegated Regulation 2023/1640, while allowing economic operators to use their own verification methods, (31) requires them to verify regularly the correctness of those methods by using C‑14 testing. (32) In addition, verification by means of C‑14 testing methods is to be required for all outputs claiming a carbon-based bio-content (Article 1(5) of Delegated Regulation 2023/1640).
54. When economic operators opt for the MB method, they are required specifically to apply ‘… [d]ifferent conversion factors … for each output that most accurately correspond to the measured bio-content through the radiocarbon 14C testing results’. (33)
55. Therefore, in my view, Delegated Regulation 2023/1640 confirms that the MB method is not suitable, on its own, for determining the bio-based molecule content present in each batch of co-processed biofuel.
56. In summary, I believe that the MB method, provided for in Article 30 of Directive 2018/2001, is used to determine compliance with the sustainability criteria applicable to raw materials, biofuels and mixtures of them but is not intended to measure the share of bio-based molecules contained in biofuel produced by co-processing.
C. Question 2
57. The referring court has submitted its second question only in the event that the answer to the first question is as I propose.
58. The referring court asks whether Article 30 of Directive 2018/2001 precludes legislation which requires ‘… upon entry into the first national tax warehousing facility in relation to imports of fuel containing HVO produced in another Member State under a co-processing procedure, a physical analysis of the HVO content of such fuel to be carried out, including where the installation in which the fuel was produced uses a mass balance approach which is certified by a voluntary system recognised by the Commission as being a comprehensive system’.
59. France laid down rules governing the TIRIB (which would become the TIRUERT in 2022) in Article 266 quindecies of its Customs Code, in Decree No 2019/570 and in the TIRIB Circular. Taxable persons who market fuel pay that tax on the difference between the national target for the share of energy from renewable sources in transport and the proportion of renewable energy contained in the fuel placed on the market.
60. In view of the fact that the TIRIB is based on the annual volume of fuel consumed, the TIRIB Circular requires a C‑14 laboratory analysis to enable determination of the actual bio-based molecule content in fuel received in France.
61. BP France submits that the requirement to use the C‑14 method is inappropriate for fuel manufactured by co-processing. It further submits that that requirement runs counter to use of the MB method and the voluntary certification schemes approved by the Commission.
62. For the reasons I shall set out below, I do not agree with the arguments put forward by BP France.
63. First, the harmonisation effected by Delegated Regulation 2023/1640 would not have been necessary if the MB method and the voluntary certification schemes had been sufficient and appropriate for measuring the proportion of bio-based molecules.
64. However, as I have already pointed out, the MB method does not appear to be suitable for measuring the proportion of bio-based molecules. The same occurred, in the situation preceding the entry into force of Delegated Regulation 2023/1640, in relation to voluntary certification schemes, the primary objective of which is to show compliance by biofuels with the sustainability criteria laid down in Article 29 of Directive 2018/2001.
65. Therefore, in order to measure the proportion of bio-based molecules in co-processed fuel, Delegated Regulation 2023/1640 provides that the C‑14 method is to be the sole method or, if another method (MB, energy balance or yield methods) is used, a supplementary method.
66. Secondly, in accordance with Article 30(9) of Directive 2018/2001, where an economic operator provides evidence or data obtained in accordance with a voluntary certification scheme approved by the Commission, a Member State will not require the supplier to provide further evidence of compliance with the sustainability criteria laid down in Article 29(2) to (7) of that directive.
67. What the provision prohibits is the requirement by a Member State of additional evidence (to that provided under the voluntary certification scheme) in relation to compliance with the sustainability criteria. (34) It says nothing about such additional evidence as regards the proportion of bio-based molecules in fuel produced by co-processing.
68. Thirdly, Directive 2018/2001 promotes the use of voluntary certification schemes that are subject to enhanced standards of reliability, transparency and independent auditing, in order to prevent fraud when evidence and data are provided in relation to compliance with the sustainability criteria by biofuels. (35)
69. The same aims (the obtaining of reliable and transparent data and the prevention of fraud) (36) may, in principle, justify national provisions which require a more accurate method, like C‑14, for quantifying the proportion of bio-based molecules present in fuels produced by co-processing.
70. However, the C‑14 analysis required by the TIRIB Circular would not be justified (because it would be superfluous) if the voluntary certification scheme relied on by a producer of co-processed fuel already included that type of analysis at source. That would be the case if that scheme were to verify that the proportion of molecules of biogenic origin in the fuel obtained had been accurately measured.
71. At the hearing:
– BP France explained that it uses C‑14 analysis at refineries which use the ISCC EU voluntary scheme, but it did not confirm specifically that batches of co-processed fuel exported to France from the refinery at Castellón (Spain) would undergo a C‑14 analysis equivalent to that required under French law.
– The French Government stated that, up to now, none of the batches of co-processed fuel imported into France from other Member States provide certificates confirming that they have undergone a C‑14 analysis, in order to provide proof of the proportion of molecules of biogenic origin present in them.
72. It is, in any event, for the referring court to give a decision on the dispute between the parties regarding the inclusion, in the voluntary certification scheme relied on by BP France, of a C‑14 analysis which makes it possible to verify the proportion of molecules of biogenic origin in imported fuel.
73. It can be inferred from the above that:
– Article 30 of Directive 2018/2001 allowed a Member State to adopt legislation, like the French legislation, to measure accurately the proportion of biogenic molecules in co-processed biofuels, in order to apply an incentive tax on the use of renewable energy;
– subject to the referring court’s assessment, the use of voluntary certification schemes approved by the Commission, such as the ISCC EU scheme, does not appear to provide adequate proof of the proportion of bio-based molecules in imported batches of co-processed biofuels.
74. Although Delegated Regulation 2023/1640 does not apply ratione temporis to the dispute, the adoption of that regulation changes the previous situation. Since its entry into force, that regulation provides that, for the purpose of measuring the proportion of bio-based molecules in co-processed fuels, the only method (or the supplementary method if other methods (MB, energy balance, yield methods) are used) is the C‑14 analysis. Since there has been such exhaustive harmonisation, the Member States no longer have competence to adopt national provisions which lay down a method of analysis other than those provided for in that regulation.
75. Furthermore, as the Commission confirmed at the hearing, any voluntary certification schemes which the Commission may have recognised since the entry into force of Delegated Regulation 2023/1640 must include not only the MB method for establishing compliance with the sustainability criteria but also the C‑14 method for establishing the proportion of biogenic molecules in co-processed fuels, in accordance with that regulation.
76. In summary, the reply which I propose to the second question is that, until the entry into force and application of Delegated Regulation 2023/1640, Article 30 of Directive 2018/2001 did not preclude, in principle, national legislation, such as that at issue in these proceedings, which requires a C‑14 analysis in order to measure accurately the proportion of molecules of biogenic origin in fuel obtained through co-processing, even if the production plant uses an MB method certified by a voluntary scheme recognised by the Commission as being a comprehensive scheme.
D. Question 3
77. The wording of question 3 is complex. The referring court asks about the compatibility with Article 34 TFEU (free movement of goods) of national legislation in respect of which it highlights two features:
– ‘Fuel containing biofuel produced by means of the co-processing procedure carried out within a refinery located on the national territory of [France] is not subject, when it is released for consumption in that Member State [France] directly on leaving the installation, to such a physical [C‑14] analysis’.
– France ‘agrees, in order to determine, upon exit from a [production facility under a duty suspension arrangement] or national tax warehousing facility, the biofuel content which may be allocated for [TIRIB] purposes between content certificates issued for a given period, to evaluate, on the basis of the [facility]’s average monthly incorporation rate, the biofuel content of exports or releases from consumption in sectors other than transport’.
78. At the material time, the European Union had not harmonised exhaustively the methods that may be used to determine the proportion of biogenic molecules in co-processed fuel. That harmonisation was brought about later by Delegated Regulation 2023/1640, as I have already pointed out.
79. Accordingly, the Member States were entitled to lay down provisions governing such methods for measuring the proportion of biogenic molecules, and that is what the French State did. When exercising that competence in relation to a non-harmonised matter, Member States were required to comply with primary law (37) and, in particular, Article 34 TFEU, which prohibits quantitative restrictions on imports and all measures having equivalent effect in intra-EU trade.
80. According to settled case-law of the Court, (38) all measures of a Member State which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union are considered as measures having an effect equivalent to quantitative restrictions on imports within the meaning of Article 34 TFEU. Such measures include measures which discriminate directly or indirectly against imports, measures relating to selling arrangements for goods and measures which make access to the market of a Member State more difficult for products originating in other Member States. (39)
81. According to point 114 of the TIRIB Circular, the contested measure applies only to co-processed biofuels which are imported from other Member States. A C‑14 analysis is required only for imports, intra-Community introductions of goods and domestic consignments of fuel containing biofuel upon entry into the first French tax warehousing facility, but not for biofuel produced at French refineries. The referring court states that ‘it is … apparent from the oral hearing that biofuels manufactured using the co-processing procedure in a refinery located in France are not subject to such control if they are not then received in a tax warehousing facility before being released for consumption’. (40)
82. There would, therefore, be more favourable treatment of all or some co-processed fuel produced in France, which is exempt from undergoing a C‑14 analysis. Imported co-processed fuel, on the other hand, must undergo such an analysis in order to determine the proportion of biogenic molecules for the purposes of the TIRIB.
83. If that were to be the outcome, the measure would make access more difficult for processed fuel imported into France from other Member States. The French Government admits as much, acknowledging that the requirement of a C‑14 analysis is liable to impede the import of fuels from other Member States.
84. However, the French Government’s position is that the C‑14 analysis does not apply only to imported fuel but also to fuel of domestic origin. (41)
85. When asked about that point at the hearing, the French Government acknowledged that its interpretation does not coincide with that set out by the Conseil d’État (Council of State) in the order for reference. The French Government maintains that:
– The equal treatment of all co-processed fuel (whether imported or not) flows from Article 266 quindecies of the Customs Code, and from Article 3(3) of Decree 2019/570 and points 30 and 33 of Circular 20-004 on the usine exercée arrangements. (42)
– There are two refineries producing co-processed fuel in France. The French Government stated that a customs arrangement (usine exercée) is applied at those refineries, which allows co-processed fuel to be placed directly on the market without passing through a tax warehouse, because it is possible for the customs authorities to carry out continuous supervision of the production of that fuel. (43)
86. The interpretation of national law does not fall within the jurisdiction of the Court of Justice, which must confine itself to the information provided by the referring court. The Court is, I stress, required to reply to the reference for a preliminary ruling while accepting that the relevant legal and factual framework is that set out by the referring court, no matter how much any of the parties to the proceedings may disagree with it.
87. On that basis, the definition of the disputed requirement, as outlined by the referring court, makes it possible to classify it as a measure having an effect equivalent to a quantitative restriction on imports, contrary to Article 34 TFEU. It follows from the wording of the request for a preliminary ruling that the TIRIB Circular promotes the use of biofuel that has been co-processed in France while making the use of biofuel which has come from other Member States more difficult.
88. Furthermore, that legislation would also be a measure having an effect equivalent to a restriction on imports even if it were applied in a non-discriminatory and equal way to imported co-processed biofuels and co-processed biofuels produced in France: the requirement for a C‑14 analysis would make imports of such biofuels into French territory more difficult in any event.
89. Nevertheless, it is possible that that restrictive measure may have a justification which would render it compatible with EU law. In any event, it will be much more difficult to argue in favour of that justification if the measure applies only to imported co-processed biofuels and not to those produced domestically.
1. Is there a justification for the measure?
90. National legislation or practices constituting a measure having an effect equivalent to a quantitative restriction 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 to attain that objective, while it is for the Member State which adopted the provision to demonstrate its compatibility with that principle. (44)
91. The French Government pleads as justification for the restrictive measure the overriding requirements of protecting the environment and combating fraud. It argues that the tax advantage consisting in the reduction in the TIRIB must benefit solely biofuels released for consumption on the national territory whose actual bio-based molecule content does in fact exceed the national incorporation target for transport set by Article 266 quindecies of the Customs Code.
92. According to the Court’s traditional case-law, (45) overriding requirements may only justify national measures that are applicable without distinction to domestic products and to imported products. Consequently, if, as the referring court states, the French measure were applicable to imports of co-processed biofuels and not to domestically produced biofuels, the overriding requirements of protecting the environment and preventing fraud would not be capable of justifying it.
93. That traditional case-law was subsequently relaxed by the Court, when analysing the justification of distinctly applicable measures by an overriding requirement, or where one of these is covered by a ground laid down in Article 36 TFEU. (46)
94. I shall therefore examine the possible justification from the perspective of the protection of the environment and the prevention of fraud, which are overriding requirements accepted by the Court in relation to intra-Community trade. (47)
95. In principle, there may be sufficient justification for the TIRIB Circular since it is aimed at and capable of:
– On the one hand, protecting the environment through the use of renewable energy. The use of a C‑14 analysis makes it possible to grant advantages to (promote) certain fuels by reducing their tax burden on the basis of their share of biofuel.
– On the other hand, preventing the risk of fraud (48) in the co-processed biofuel production chain. The C‑14 method makes it possible to ascertain with certainty the actual proportion of biogenic HVO molecules in biofuel and, using that datum, to apply correctly an incentive tax on the use of biofuels.
2. Is there compliance with the principle of proportionality?
96. Once the justification has been accepted, it remains to be established whether the restrictive measure complies with the principle of proportionality. That will be the case only if it is appropriate for ensuring the attainment of the aim pursued and does not go beyond what is necessary to attain that aim because no less restrictive alternative exists.
97. From that perspective, it is possible to agree that the requirement imposed by the TIRIB Circular is appropriate for achieving the aim pursued, because:
– It appears that determination of the proportion of biogenic molecules in co-processed fuel is not possible using less restrictive alternatives which differ from a C‑14 analysis.
– The MB method is of limited use for those purposes and only gives approximate results. Therefore, Delegated Regulation 2023/1640 provided for the C‑14 analysis as a common verification method for measuring the proportion of molecules of biogenic origin present in co-processed biofuels and for the regular (supplementary) use of that method when producers use other methods (such as the MB method).
98. It is also important to point out, as evidence of the proportionality of the measure, that the TIRIB Circular does not require a physical C‑14 analysis to be carried out in a laboratory in all cases and for all fuel imports: (49) where an initial analysis has been carried out and it agrees (by a margin of 10%) with the proportion of molecules of biogenic origin declared by the importing undertaking, the C‑14 analysis will be repeated only on a random basis. (50)
99. A restrictive measure can be considered to be an appropriate means of securing the achievement of the objective pursued only if it genuinely reflects a concern to secure the attainment of that objective in a consistent and systematic manner. (51)
100. In its order, (52) the referring court points out three factors which preclude a finding of such systematic coherence:
– A C‑14 analysis is required to be carried out only in respect of imports, intra-Community introductions of goods and domestic consignments of fuel containing biofuel upon entry into the first French tax warehousing facility.
– Biofuels produced by means of the co-processing procedure carried out in a refinery situated on French territory are not subject to a C‑14 analysis when they are released for consumption in that Member State directly on leaving the installation, without passing through a tax warehouse.
– The French State agrees to evaluate the biofuel content of exports or releases of goods for consumption in sectors other than transport, taking into account the certificates recording the monthly incorporation rate of biofuel and without using a C‑14 analysis.
101. In the same vein, BP France explains (53) that, in order to a obtain a reduction in the rate of the TIRIB (or the TIRUERT), the French authorities require, first, absolute certainty, by means of C‑14 testing, of the actual presence of renewable energy at the time when the imported product (biofuel produced by co-processing) is placed on the market and, secondly, a simple pro rata annual calculation which does not provide any guarantee of traceability, unlike the MB method, in the case of electricity of renewable origin.
102. It can be concluded from those facts that the measure at issue does not comply with Article 34 TFEU, in so far as it is not appropriate to secure the attainment of any objectives which may justify it in a consistent and systematic manner.
V. Conclusion
103. In the light of the foregoing considerations, I propose that the Court of Justice reply to the Conseil d’État (Council of State, France) as follows:
Article 30 of Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources, as the legislation stood prior to the entry into force of Commission Delegated Regulation (EU) 2023/1640 of 5 June 2023 on the methodology to determine the share of biofuel and biogas for transport, produced from biomass being processed with fossil fuels in a common process, and Article 34 TFEU
are to be interpreted as meaning that:
– The aim of the mass balance method is to determine compliance with the sustainability criteria laid down in Article 29 of Directive 2018/2001, applicable to raw materials, biofuels and mixtures of them, and it is not intended to quantify the share of molecules of biogenic origin contained in a biofuel produced by means of co-processing.
– In principle, Article 30 of Directive 2018/2001 did not preclude, until the entry into force and application of Delegated Regulation 2023/1640, domestic legislation which requires a radiocarbon (C‑14) analysis to be carried out when imported biofuel produced by co-processing enters the first national tax warehousing facility, in order to determine the relevant proportion of molecules of biogenic origin for the purposes of calculating an incentive tax on the use of biofuels. It is immaterial for those purposes that the refinery in which that fuel was produced uses a mass balance system certified by a voluntary scheme recognised by the European Commission as a comprehensive scheme.
– Article 34 TFEU precludes national legislation which requires a radiocarbon (C‑14) analysis to be carried out when imported biofuel produced by co-processing enters the first national tax warehousing facility, in order to determine the relevant proportion of molecules of biogenic origin for the purposes of calculating an incentive tax on the use of biofuels if such an analysis is not required where co-processed biofuels are produced domestically.