Case C‑4/16

J.D.

v

Prezes Urzędu Regulacji Energetyki

(Request for a preliminary rulingfrom the Sąd Apelacyjny w Warszawie Wydział Cywilny)

(Reference for a preliminary ruling — Environment — Directive 2009/28/EC — The second subparagraph of Article 2(a) — Energy from renewable sources — Hydropower — Meaning — Energy produced in a small-scale hydropower plant located at the point of discharge of industrial waste water from another plant)

Summary — Judgment of the Court (Second Chamber), 2 March 2017

Environment — Promotion of the use of energy from renewable sources — Directive 2009/28 — Concept of energy from renewable sources — Energy produced by a hydroelectric power station located at the point of discharge of industrial waste water from another plant — Included

(European Parliament and Council Directive 2009/28, Art. 2, second para., (a))

The concept of ‘energy from renewable sources’, in the second subparagraph of Article 2(a) of Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, must be interpreted as covering energy generated by a small-scale hydropower plant, which is not a pumped-storage power station or a hydropower plant with a pumping installation, located at the point of discharge of industrial waste water from another plant which previously used the water for its own purposes.

As was stated, in essence, by the Advocate General in points 36 to 38 of his Opinion, it follows from those factors that all hydropower constitutes energy from renewable sources, within the meaning of the second subparagraph of Article 2(a) of Directive 2009/28, whether it is generated by hydropower provided by a natural water flow, or whether it is generated from hydropower provided from an artificial water flow, with the exception of electricity generated from pumped storage units using water that has previously been pumped uphill. In order to avoid any risk of circumvention, it is nevertheless necessary that the uphill activity, which is at the source of that artificial water flow, does not exist solely to create that water flow for the purposes of its uphill exploitation in order to produce electricity. Therefore, in particular, electricity produced from hydropower provided from an artificial water flow where the latter was created uphill by pumping with the sole aim of producing that electricity downstream does not come within the concept of hydropower produced from renewable sources, for the purposes of Directive 2009/28.

(see paras 31, 36, 38, operative part)