Language of document :

Judgment of the Court (Fourth Chamber) of 11 September 2014 (request for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel — Belgium) — Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt

(Joined Cases C-204/12 to C-208/12) 1

(References for a preliminary ruling — Regional support scheme providing for the issuance of tradable green certificates for facilities situated in the region concerned producing electricity from renewable energy sources — Obligation for electricity suppliers to surrender annually to the competent authority a certain quota of certificates — Refusal to take account of guarantees of origin originating from other Member States of the European Union and from States which are parties to the EEA Agreement — Administrative fine in the event of failure to surrender certificates — Directive 2001/77/EC — Article 5 — Free movement of goods — Article 28 EC — Articles 11 and 13 of the EEA Agreement — Directive 2003/54/EC — Article 3)

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Brussel

Parties to the main proceedings

Applicant: Essent Belgium NV

Defendant: Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt

Intervening parties: Vlaams Gewest, Vlaamse Gemeenschap (C-204/12, C-206/12 and C-208/12)

Operative part of the judgment

Article 5 of Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market must be interpreted as not precluding a national support scheme, such as that at issue in the main proceedings, which provides for the issuance, by the competent regional regulatory authority, of tradable certificates in respect of green electricity produced on the territory of the region concerned and which places electricity suppliers under an obligation, subject to an administrative fine, to surrender annually to that authority a certain number of those certificates corresponding to a proportion of the total volume of the electricity that they have supplied in that region, without those suppliers being allowed to fulfil that obligation by using guarantees of origin originating from other Member States of the European Union or non-member States which are parties to the EEA Agreement.

Articles 28 EC and 30 EC and Articles 11 and 13 of the Agreement on the European Economic Area of 2 May 1992, must be interpreted as not precluding a national support scheme as described in paragraph 1 of the present operative part, provided that:

mechanisms are established which ensure the creation of a genuine market for certificates in which supply can match demand, reaching some kind of balance, so that it is actually possible for the relevant suppliers to obtain certificates under fair terms;

the method of calculation and amount of the administrative fine to be paid by suppliers who have not fulfilled that obligation are fixed in such a way as not to exceed what is necessary to encourage producers actually to increase their production of green electricity and suppliers subject to that obligation actually to purchase the required certificates, by avoiding in particular penalising those suppliers in an excessive manner.

The rules on non-discrimination contained in Article 18 TFEU, Article 4 of the Agreement on the European Economic Area of 2 May 1992 and Article 3(1) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC respectively, must be interpreted as not precluding a national support scheme as described in paragraph 1 of the present operative part.

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1 OJ C 227, 28.7.2012.