Contents
Judgment of the Court (Third Chamber)29 July 2024note(Reference for a preliminary ruling — Promotion of the use of energy from renewable sources — Directive 2009/28/EC — Articles 17 and 18 — Directive 2018/2001 — Articles 25, 29 and 30 — Sustainability and greenhouse gas emissions saving criteria — Verification of compliance with those criteria — Biofuels used for transport — Production of fuels using the co-processing procedure — Evidence of compliance with those sustainability criteria — Mass balance method — Methods for evaluating the content of hydrotreated vegetable oils (HVO) in fuels produced using that procedure — Member State’s legislation requiring a physical carbon-14 analysis — Article 34 TFEU — Free movement of goods)In Case C‑624/22,REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, France), made by decision of 30 September 2022, received at the Court on 30 September 2022, in the proceedingsBP France SASvMinistre de l’Économie, des Finances et de la Souveraineté industrielle et numériqueTHE COURT (Third Chamber),composed of K. Jürimäe, President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Third Chamber, N. Piçarra, N. Jääskinen and M. Gavalec (Rapporteur), Judges,Advocate General: M. Campos Sánchez-Bordona,Registrar: N. Mundhenke, Administrator,having regard to the written procedure and further to the hearing on 25 October 2023,after considering the observations submitted on behalf of:– BP France SAS, by M. Dantin and A. Kourtih, avocats, and by A. Comtesse York von Wartenberg and J. Lopez, acting as experts,– the French Government, by J.-L. Carré, V. Depenne, B. Fodda and M. Guiresse, acting as Agents,– the Netherlands Government, by M.K. Bulterman and A. Hanje, acting as Agents,– the Austrian Government, by A. Posch, J. Schmoll, F. Koppensteiner and F. Werni, acting as Agents,– the European Commission, by B. De Meester and F. Thiran, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 11 January 2024,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of Articles 17 and 18 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 (OJ 2009 L 140, p. 16), as amended by Directive (EU) 2015/1513 of the European Parliament and of the Council of 9 September 2015 (OJ 2015 L 239, p. 1) (‘Directive 2009/28’), Articles 25, 29 and 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 (OJ 2018 L 328, p. 82), and of Article 34 TFEU.
2The request has been made in proceedings between BP France SAS and the Ministre de l’Économie, des Finances et de la Souveraineté industrielle et numérique (Minister for the Economy, Finance and Industrial and Digital Sovereignty, France) concerning the legality of the circulaire du ministre délégué, chargé des comptes publics, du 18 août 2020, concernant la taxe incitative relative à l’incorporation de biocarburants (TIRIB) (circular from the Minister Delegate for Public Accounts, of 18 August 2020, concerning the incentive tax relating to the incorporation of biofuels) (‘the circular at issue’), which requires the use of a physical carbon-14 laboratory analysis to determine the actual content of hydrotreated vegetable oils (‘HVO’) of petrol or diesel type of a fuel produced according to the co-processing procedure.
Legal context
European Union law
Directive 2009/28
3Directive 2009/28 was repealed and replaced by Directive 2018/2001, with effect from 1 July 2021. The second subparagraph of Article 2(i) of Directive 2009/28 included the following definition:‘…(i) “biofuels” means liquid or gaseous fuel for transport produced from biomass.’
4Article 3 of that directive, entitled ‘Mandatory national overall targets and measures for the use of energy from renewable sources’, stated, in paragraph 4 thereof:‘Each Member State shall ensure that the share of energy from renewable sources in all forms of transport in 2020 is at least 10% of the final consumption of energy in transport in that Member State.…’
5Article 17 of that directive, entitled ‘Sustainability criteria for biofuels and bioliquids’, provided, in paragraph 1:‘1. Irrespective of whether the raw materials were cultivated inside or outside the territory of the [European] Community, energy from biofuels and bioliquids shall be taken into account for the purposes referred to in points (a), (b) and (c) only if they fulfil the sustainability criteria set out in paragraphs 2 to 6:(a) measuring compliance with the requirements of this Directive concerning national targets;(b) measuring compliance with renewable energy obligations;(c) eligibility for financial support for the consumption of biofuels and bioliquids.…’
6Article 17(2) to (5) determined the sustainability criteria for the production of biofuels and bioliquids.
7Article 17(8) provided:‘For the purposes referred to in points (a), (b) and (c) of paragraph 1, Member States shall not refuse to take into account, on other sustainability grounds, biofuels and bioliquids obtained in compliance with this Article.’
8Article 18 of Directive 2009/28, entitled ‘Verification of compliance with the sustainability criteria for biofuels and bioliquids’, provided:1.Where biofuels and bioliquids are to be taken into account for the purposes referred to in points (a), (b) and (c) of Article 17(1), Member States shall require economic operators to show that the sustainability criteria set out in Article 17(2) to (5) have been fulfilled. For that purpose they shall require economic operators to use a mass balance system which:(a) allows consignments of raw material or biofuel with differing sustainability characteristics to be mixed;(b) requires information about the sustainability characteristics and sizes of the consignments referred to in point (a) to remain assigned to the mixture; and(c) 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.…3. Member States shall take measures to ensure that economic operators submit reliable information and make available to the Member State, on 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. The auditing shall verify that the systems used by economic operators are accurate, reliable and protected against fraud. It shall evaluate the frequency and methodology of sampling and the robustness of the data.The information referred to in the first subparagraph shall include in particular information on compliance with the sustainability criteria set out in Article 17(2) to (5), appropriate and relevant information on measures taken for soil, water and air protection, the restoration of degraded land, the avoidance of excessive water consumption in areas where water is scarce and appropriate and relevant information concerning measures taken in order to take into account the issues referred to in the second subparagraph of Article 17(7).…4. The Community shall endeavour to conclude bilateral or multilateral agreements with third countries containing provisions on sustainability criteria that correspond to those of this Directive. Where the Community has concluded agreements containing provisions relating to matters covered by the sustainability criteria set out in Article 17(2) to (5), the [European] Commission may decide that those agreements demonstrate that biofuels and bioliquids produced from raw materials cultivated in those countries comply with the sustainability criteria in question. …The Commission may decide that voluntary national or international schemes setting standards for the production of biomass products contain accurate data for the purposes of Article 17(2), and/or demonstrate that consignments of biofuel or bioliquid comply with the sustainability criteria set out in Article 17(3), (4) and (5), and/or that no materials have been intentionally modified or discarded so that the consignment or part thereof would fall under Annex IX. ……5. The Commission shall adopt decisions under paragraph 4 only if the agreement or scheme in question meets adequate standards of reliability, transparency and independent auditing. …The voluntary schemes referred to in paragraph 4 (“the voluntary schemes”) shall regularly, and at least once per year, publish a list of their certification bodies used for independent auditing, indicating for each certification body by which entity or national public authority it was recognised and which entity or national public authority is monitoring it.In order in particular to prevent fraud, the Commission may, on the basis of a risk analysis or the reports referred to in the second subparagraph of paragraph 6 of this Article, specify the standards of independent auditing and require all voluntary schemes to apply those standards. This shall be done by means of implementing acts adopted in accordance with the examination procedure referred to in Article 25(3). Such acts shall set a time frame by which voluntary schemes need to implement the standards. The Commission may repeal decisions recognising voluntary schemes in the event that those schemes fail to implement such standards in the time frame provided for.…7. When an economic operator provides proof or data obtained in accordance with an agreement or scheme that has been the subject of a decision pursuant to paragraph 4, to the extent covered by that decision, a Member State shall not require the supplier to provide further evidence of compliance with the sustainability criteria set out in Article 17(2) to (5) nor information on measures referred to in the second subparagraph of paragraph 3 of this Article.…’
Directive 2018/2001
9Recitals 94, 107 to 110 and 126 of Directive 2018/2001 provide:(94) Biofuels, bioliquids and biomass fuels should always be produced in a sustainable manner. Biofuels, bioliquids and biomass fuels used for compliance with the [European] Union target laid down in this Directive, and those which benefit from support schemes, should therefore be required to fulfil sustainability and greenhouse gas emissions saving criteria. The harmonisation of those criteria for biofuels and bioliquids is essential for the achievement of the energy policy objectives of the Union as set out in Article 194(1) TFEU. Such harmonisation ensures the functioning of the internal energy market and thus facilitates, especially with regard to the obligation of Member States not to refuse to take into account, on other sustainability grounds, biofuels and bioliquids obtained in accordance with this Directive, trade between Member States in compliant biofuels and bioliquids. The positive effects of the harmonisation of those criteria on the smooth functioning of the internal energy market and on the avoidance of distortion of competition in the Union cannot be frustrated. For biomass fuels, Member States should be allowed to establish additional sustainability and greenhouse gas emissions saving criteria.…(107) Based on experience in the practical implementation of the Union sustainability criteria, it is appropriate to strengthen the role of voluntary international and national certification schemes for verification of compliance with the sustainability criteria in a harmonised manner.(108) It is in the interests of the Union to encourage the development of voluntary international or national schemes that set standards for the production of sustainable biofuels, bioliquids and biomass fuels and that certify that the production of biofuels, bioliquids and biomass fuels meets those standards. For that reason, provision should be made for schemes to be recognised as providing reliable evidence and data where they meet adequate standards of reliability, transparency and independent auditing. In order to ensure that compliance with the sustainability and greenhouse gas emissions saving criteria is verified in a robust and harmonised manner and in particular to prevent fraud, the Commission should be empowered to adopt detailed implementing rules, including adequate standards of reliability, transparency and independent auditing to be applied by the voluntary schemes.(109) Voluntary schemes play an increasingly important role in providing evidence of compliance with the sustainability and greenhouse gas emissions saving criteria for biofuels, bioliquids and biomass fuels. It is therefore appropriate for the Commission to require voluntary schemes, including those already recognised by the Commission, to report regularly on their activity. Such reports should be made public in order to increase transparency and to improve supervision by the Commission. Furthermore, such reporting would provide the necessary information for the Commission to report on the operation of the voluntary schemes with a view to identifying best practices and submitting, if appropriate, a proposal to further promote such best practices.(110) To facilitate the functioning of the internal market, evidence regarding the sustainability and greenhouse gas emissions criteria for biofuels, bioliquids and biomass fuels that have been obtained in accordance with a scheme that has been recognised by the Commission should be accepted in all Member States. Member States should contribute towards ensuring the correct implementation of the certification principles of voluntary schemes by supervising the operation of certification bodies that are accredited by the national accreditation body and by informing the voluntary schemes about relevant observations.…(126) In order to amend or supplement non-essential elements of this Directive, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of … specifying the methodology by which to determine the share of biofuel, and biogas for transport, resulting from biomass being processed with fossil fuels in a common process and the methodology by which to assess the greenhouse gas emissions savings from renewable liquid and gaseous transport fuels of non-biological origin and from recycled carbon fuels in order to ensure that credits from greenhouse gas emissions savings are given only once; …’
10Article 2 of that directive, entitled ‘Definitions’, provides, in the second subparagraph thereof:‘The following definitions also apply:…(33) “biofuels” means liquid fuel for transport produced from biomass;…’
11Article 25 of that directive, entitled ‘Mainstreaming renewable energy in the transport sector’, provides, in paragraph 1 thereof:‘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 and calculated in accordance with the methodology set out in this Article and in Articles 26 and 27. ……’
12Article 28 of that directive, entitled ‘Other provisions on renewable energy in the transport sector’, provides, in paragraph 5 thereof:‘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 …’
13Article 29 of Directive 2018/2001, entitled ‘Sustainability and greenhouse gas emissions saving criteria for biofuels, bioliquids and biomass fuels’, sets out in paragraph 1 thereof:‘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.…’
14Article 29(2) to (7) of Directive 2018/2001 determines the sustainability criteria for the production of biofuels, bioliquids and biomass fuels.
15Article 29(12) of that directive is worded as follows:‘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.’
16Article 30 of Directive 2018/2001, entitled ‘Verification of compliance with the sustainability and greenhouse gas emissions saving criteria’, provides: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.2.Where a consignment is processed, information on the sustainability and greenhouse gas emissions saving characteristics of the consignment shall be adjusted and assigned to the output in accordance with the following rules:(a) when the processing of a consignment of raw material yields only one output that is intended for the production of biofuels, bioliquids or biomass fuels, renewable liquid and gaseous transport fuels of non-biological origin, or recycled carbon fuels, the size of the consignment and the related quantities of sustainability and greenhouse gas emissions saving characteristics shall be adjusted applying a conversion factor representing the ratio between the mass of the output that is intended for such production and the mass of the raw material entering the process;(b) when the processing of a consignment of raw material yields more than one output that is intended for the production of biofuels, bioliquids or biomass fuels, renewable liquid and gaseous transport fuels of non-biological origin, or recycled carbon fuels, for each output a separate conversion factor shall be applied and a separate mass balance shall be used.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. In order to comply with point (a) of Article 29(6) and point (a) of Article 29(7), the first or second party auditing may be used up to the first gathering point of the forest biomass. The auditing shall verify that the systems used by economic operators are accurate, reliable and protected against fraud, including verification ensuring that materials are not intentionally modified or discarded so that the consignment or part thereof could become a waste or residue. It shall evaluate the frequency and methodology of sampling and the robustness of the data.…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). When demonstrating that the criteria laid down in Article 29(6) and (7) are met, the operators may provide the required evidence directly at sourcing area level. The Commission may recognise areas for the protection of rare, threatened or endangered ecosystems or species recognised by international agreements or included in lists drawn up by intergovernmental organisations or the International Union for the Conservation of Nature for the purposes of point (c)(ii) of the first subparagraph of Article 29(3).The Commission may decide that those schemes contain accurate information on measures taken for soil, water and air protection, for the restoration of degraded land, for the avoidance of excessive water consumption in areas where water is scarce, and for certification of biofuels, bioliquids and biomass fuels with low indirect land-use change-risk.…6. Member States may set up national schemes where compliance with the sustainability and greenhouse gas emissions saving criteria laid down in Article 29(2) to (7) and (10) and with the greenhouse gas emissions savings thresholds for renewable liquid and gaseous transport fuels of non-biological origin and recycled carbon fuels set in, and adopted pursuant to, Article 25(2) and in accordance with Article 28(5) is verified throughout the entire chain of custody involving competent national authorities.…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).…’
Delegated Regulation (EU) 2023/1640
17Commission 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 (OJ 2023 L 205, p. 1), was adopted on the basis of Article 28(5) of Directive 2018/2001. That delegated regulation provides, in Article 2 thereof, entitled ‘Mass balance method’:1. If a mass balance method is used, the economic operator shall perform the full mass balance analysis of the total mass of inputs and outputs. The mass balance method shall ensure that the bio-content of all outputs is proportional to the bio-content of the inputs and that the share of biogenic material identified by the radiocarbon 14C testing results is allocated to each output. Different conversion factors shall be applied for each output that most accurately correspond to the measured bio-content through the radiocarbon 14C testing results. The output shall take into account the mass lost in off-gases, in liquid industrial wastewaters and in solid residues. The mass balance method shall include additional analytic characterisation of feedstocks and products, such as ultimate and proximate analyses of system mass flows.…’
French law
The Customs Code
18Article 266 quindecies of the code des douanes (Customs Code), in the version applicable to the dispute in the main proceedings, provided:‘I. Persons liable for the domestic tax on consumption provided for in Article 265 shall be liable for the [TIRIB].…III. The [TIRIB] 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 or equal to the national target for the share of energy from renewable sources in transport, the tax shall be zero. …IV. The tariff of the tax and the national targets for the share of renewable energy in transport are as follows:Year | 2020 | From 2021Tariff ([euros]/hL) | 101 | 104Target rate for diesel | 8% | 8%Target rate for petrol | 8.2% | 8.6%V.-A.- The share of renewable energy refers to the proportion, assessed in net calorific value, of energy produced from renewable sources which that taxable persons is able to justify as being contained in the fuel included in the basis of assessment of the charge, taking into account, where applicable, the calculation rules specific to certain raw materials provided for in Parts C and D of Section V and under the provisions of Section VII.The energy contained in biofuels shall be renewable where the biofuels fulfil the sustainability criteria set out in Article 17 of [Directive 2009/28].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.…’
Decree No 2019-570
19Décret no 2019-570, du 7 juin 2019, portant sur la taxe incitative relative à l’incorporation des biocarburants (Decree No 2019-570 of 7 June 2019 concerning the incentive tax relating to the incorporation of biofuels) (JORF of 9 June 2019, Text No 13), states in Article 3 thereof:‘The elements by means of which persons liable for the incentive tax shall justify, for the application of the second subparagraph of Article 266 quindecies (V)(A) of the Customs Code, that the taxable fuels contain energy from renewable sources include, in addition, where applicable, the circulation documents and stock accounts provided for in Article 158 octies (II)(b) of the same code relating to eligible products and taxable fuels:1° certificates of incorporation, issued upon incorporation, in a tax warehousing facility for petroleum products, of eligible products in a taxable fuel;…3° Stock accounts for monitoring renewable energy;4° Content certificates, issued when the incentive tax becomes payable for a taxable fuel deemed to contain energy from renewable sources;…’
20Section III of Article 4 of that decree provides:‘III.- Stock accounts for monitoring renewable energy shall be kept by persons who hold eligible products in a tax warehousing facility, a tax warehouse for energy products or a production facility under a duty suspension arrangement as well as by persons using the option provided for in item 3 of Article 5.They shall indicate:1° The inputs and outputs of eligible product quantities held, taking into account in particular the incorporations, transfers, acquisitions and exits recorded by the certificates;…’
21Article 7 of that decree provides:‘The certificates and stock accounts for monitoring renewable energy shall mention the names and quantities of eligible products made up of renewable energy, whether or not incorporated in taxable fuels, by distinguishing:1° Products that are not produced from biomass;2° Biofuels;3° Products from raw materials defined in Article 266 quindecies (V)(b)(2) of the Customs Code;4° Palm oil products;5° Products subject to specific traceability obligations provided for in Title III of this decree.They shall also include the information necessary for monitoring renewable energy provided by the customs and indirect taxation administration.’
22Article 8 of that decree is worded as follows:‘The issuance of certificates and the completion of stock accounts for renewable energy monitoring shall be certified by a visa from the competent customs service(s).…’
The circular at issue
23Appearing in Part V(A) of Chapter IV of the circular at issue, entitled ‘Taking into account actual biofuel content when recording the stock accounts kept within the framework of the TIRIB’, points 109 to 111, 114 and 115 of that circular provide:‘[109]The input volume of eligible products registered in the stock accounts kept within the framework of the TIRIB must correspond to the volume recognised by the customs authorities on the arrival of the product in the [production facility under a duty suspension arrangement] or the [tax warehousing facility (TWF)]. In principle, these are the volumes recorded on the accompanying documents [single administrative document (SAD), electronic administrative document (EAD), simplified accompanying document (SAD) or simplified commercial supporting document (SCAD)].In respect of consignments of fuel containing biofuel received on arrival into [a production facility under a duty suspension arrangement] or a TWF, 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 delivered 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. The volumes entered as input to the stock accounts must also correspond to the volumes of biofuel covered by the sustainability certificate established by the biofuel supplier.[111] For hydrotreated vegetable oils (petrol or diesel type), the C14 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 supplies and domestic consignments of fuel containing biofuels upon entry into the first French tax warehousing facility.[115] The sole purpose of that physical analysis is to determine the volumes of biofuels received in the [production facility under a duty suspension arrangement] or in the TWF in order to register that volume as an input into the stock accounts 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 attached to the delivery and in particular the sustainability certificate. It can be determined using the mass balance method recognised by voluntary sustainability systems.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
24BP France imports into France fuel containing HVO produced in Spain according to the ‘co-processing’ procedure. That procedure involves incorporating, in refineries, upstream of the desulphurisation unit, vegetable oils into the fossil-based material in order for those vegetable oils to transform into HVO under the influence of hydrogen. The fuels produced according to that procedure constitute, in essence, a blend of fossil-based molecules and biosourced molecules.
25Those fuels are received in France in a tax warehousing facility before being released for consumption.
26In order to promote the use of biofuels in the transport sector, the French authorities have established the TIRIB, in Article 266 quindecies of the Customs Code. That tax is levied on the total volume of petrol and diesel which taxable persons release for consumption during a calendar year, to which a tariff expressed in euros per hectolitre is applied. A coefficient equal to the difference between the national target for the share of renewable energy in transport and the proportion of renewable energy contained in the total volume of the fuels considered is then applied to the result of that basis of assessment. It follows that the amount of the TIRIB decreases proportionally with the increase in the proportion of biofuels contained in the products included in the basis of assessment of that tax, until it becomes zero if that proportion is greater than or equal to that national target rate.
27Decree No 2019-570 specifies the detailed rules allowing a person liable for that tax to justify that the taxable fuels contain biofuels. Under Articles 3, 4 and 7 of that decree, the holder of such fuels in a tax warehousing facility or a production facility under a duty suspension arrangement is to maintain stock accounts for monitoring renewable energy which register the inputs and outputs of those fuels’ quantities, distinguishing in particular biofuels from products which are not made from biomass.
28On 18 August 2020, the Ministre délégué, chargé des comptes publics (Minister Delegate for Public Accounts) adopted the circular at issue which requires, upon the entry of fuels containing biofuels, such as HVO, in the first French tax warehousing facility, that a physical carbon-14 laboratory analysis be carried out on a sample of those fuels (‘the physical carbon-14 analysis’) in order to establish the actual biofuel content of those fuels to calculate the TIRIB due.
29BP France brought an action before the Conseil d’État (Council of State, France), the referring court, seeking the annulment of that circular on the basis that it is ultra vires, in that it requires that such a physical carbon-14 analysis be carried out in respect of fuels produced according to the co-processing procedure.
30Before that court, BP France argues inter alia that that circular disregards the objectives pursued by Articles 17 and 18 of Directive 2009/28 and by Articles 28 to 30 of Directive 2018/2001, in that it requires an economic operator to provide proof of compliance with sustainability criteria other than those provided for in those articles.
31BP France also notes that the refinery, from which the fuels at issue in the main proceedings originate, participates in a voluntary scheme recognised by the Commission as being a comprehensive system under Article 18(4) of Directive 2009/28. Consequently, the mass balance method, provided for in Article 18(1) of that directive and in Article 30 of Directive 2018/2001, which is applied within the framework of that voluntary scheme, is sufficient to assess, for the purposes of keeping stock accounts under the TIRIB, the quantity of ‘biosourced’ molecules, such as HVO, contained in the fuels received by that company in the first French tax warehousing facility.
32According to the referring court, a physical carbon-14 analysis is, in the current state of scientific knowledge, the only method allowing the actual content of bio-based’ molecules, such as HVO, in fuels produced according to the co-processing procedure to be measured.
33However, that court has doubts in respect of three points.
34In the first place, it is uncertain regarding the purpose of Articles 17 and 18 of Directive 2009/28 and Article 30 of Directive 2018/2001. It has doubts as to whether the sole purpose of the mass balance monitoring mechanisms and the national or voluntary schemes provided for in those articles is to assess and justify the sustainability of raw materials and biofuels and their mixtures, and not to regulate the assessment of the share of energy from renewable sources, such as HVO, contained in the fuels produced according to the co-processing procedure and, consequently, to harmonise the taking into account of that share for the purposes referred to in points (a) to (c) of the first subparagraph of Article 17(1) of Directive 2009/28 and in Article 25 and points (a) to (c) of the first subparagraph of Article 29(1) of Directive 2018/2001.
35If the question is answered in the negative, in the second place, that court questions whether those provisions preclude a Member State – in order to determine the HVO quantity to be entered in the stock accounts which operators must maintain for the purposes of establishing the TIRIB – to require, upon the entry in the first tax warehousing facility of that Member State of imports of fuels containing HVO produced in another Member State according to the co-processing procedure, that a physical carbon-14 analysis of the HVO content of those fuels be carried out, including when the installation in which those fuels were produced uses a mass balance system certified by a voluntary scheme recognised by the Commission as being a comprehensive system under Article 18(4) of Directive 2009/28.
36In the third and last place, that court questions whether the obligation to carry out a physical carbon-14 analysis for imports, intra-Community supplies and domestic consignments of fuel containing biofuels upon their entry into the first French tax warehousing facility constitutes a measure having equivalent effect to a quantitative restriction on imports incompatible with Article 34 TFEU, whereas, first, such an analysis is not required for fuels containing biofuels produced according to the co-processing procedure in a refinery located in France, which are released for consumption in that Member State directly from the installation (without being received in a tax warehousing facility before their release for consumption) and, secondly, that Member State allows, for the purposes of the tax concerned, the biofuel content of exports or releases for consumption in sectors other than transport to be evaluated on the basis of an average monthly incorporation rate of the facility concerned.
37In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer 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 [points (a) to (c) of the first subparagraph of Article 17(1)] of [Directive 2009/28], and Article 25 and [points (a) to (c) of the first subparagraph of Article 29(1)] 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, precludes a measure adopted by a Member State such as that described in paragraph [36 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 a 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 for consumption in sectors other than transport?’
Consideration of the questions referred
The first and second questions
38As a preliminary point, it should be stated that, although, in its first question, the referring court formally refers to Articles 17 and 18 of Directive 2009/28, which relate, respectively, to the sustainability criteria for biofuels and bioliquids and the verification of compliance with them, and to Article 30 of Directive 2018/2001, which concerns the verification of compliance with the sustainability and greenhouse gas emissions saving criteria, it clearly also seeks to obtain the interpretation of Article 29 of the latter directive, which relates to the sustainability and greenhouse gas emissions saving criteria for biofuels, bioliquids and biomass fuels.
39Thus, by its first question, that court asks, in essence, whether Articles 17 and 18 of Directive 2009/28 and Articles 29 and 30 of Directive 2018/2001 must be interpreted as meaning that the sole purpose of the mass balance monitoring system and the voluntary national or international schemes provided for in those articles is to assess and justify the sustainability of raw materials and biofuels, and their mixtures, and not to regulate the assessment of the share of energy from renewable sources contained in fuels produced according to the co-processing procedure.
40In that regard, it should be noted that the provisions of Directive 2009/28 and those of Directive 2018/2001 which the Court is required to interpret in the context of this case have an essentially similar object and content for the purposes of the interpretation which the Court will be required to give in the present case (see, by analogy, judgment of 20 September 2022, VD and SR, C‑339/20 and C‑397/20, EU:C:2022:703, paragraph 64).
41In the first place, as is apparent from Article 17 of Directive 2009/28 and Article 29 of Directive 2018/2001, read in the light of recital 94 of that directive, the EU legislature intended to harmonise the sustainability criteria which it is mandatory for biofuels to fulfil in order for the energy produced from them to be taken into account, within each Member State, for the three purposes respectively referred to in points (a) to (c) of the first subparagraph of Article 17(1) of Directive 2009/28 and points (a) to (c) of the first subparagraph of Article 29(1) of Directive 2018/2001. Those purposes are, first, the verification of the extent to which the Member States meet their national targets and the European Union’s target set out, respectively, in Article 3 of Directive 2009/28 and in Article 3(1) of Directive 2018/2001, secondly, the assessment of compliance with their renewable energy obligations, including, with regard to Directive 2018/2001, the obligation relating to the minimum share of renewable energy in the final energy consumption in the transport sector laid down in Article 25 of the latter directive and, thirdly, the possible eligibility for financial support for the consumption of biofuels and bioliquids (see, to that effect, judgment of 22 June 2017, E.ON Biofor Sverige, C‑549/15, EU:C:2017:490, paragraph 28).
42Those sustainability criteria relate to the origin of the organic raw materials from which the biofuels were produced or to the conditions of production of those raw materials. Accordingly, for instance, biofuels which are produced from raw materials originating from highly biodiverse land cannot be taken into account for the purposes referred to in Article 17(1) of Directive 2009/28 or Article 29(1) of Directive 2018/2001.
43The harmonisation provided for in Article 17 of Directive 2009/28 and Article 29 of Directive 2018/2001 is very specific, in that it deals only with the biofuels defined – in point (i) of the second paragraph of Article 2 of Directive 2009/28 and point (33) of the second paragraph of Article 2 of Directive 2018/2001 respectively – as any liquid or gaseous fuel for transport produced from biomass, and in that it merely states which sustainability criteria such biofuels must fulfil in order that the energy produced from them may be taken into account by the Member States for the three specific purposes set out in points (a) to (c) of the first subparagraph of Article 17(1) of Directive 2009/28 and in points (a) to (c) of the first subparagraph of Article 29(1) of Directive 2018/2001. In that context, that harmonisation is, furthermore, exhaustive, since Article 17(8) of Directive 2009/28 and Article 29(12) of Directive 2018/2001 state that, for those three purposes, the Member States may not refuse to take into account, on other sustainability grounds, biofuels which fulfil the sustainability criteria set out in those articles (see, to that effect, judgment of 22 June 2017, E.ON Biofor Sverige, C‑549/15, EU:C:2017:490, paragraph 32).
44First, Article 17 of Directive 2009/28 and Article 29 of Directive 2018/2001 thus seek to ensure, with a view to guaranteeing the high level of protection of the environment referred to in Article 95(3) EC, now Article 114(3) TFEU, that biofuels may be taken into account by the Member States, for the three environmental purposes set out in the points (a) to (c) of the first subparagraph of Article 17(1) and points (a) to (c) of the first subparagraph of Article 29(1), only provided that they fulfil the sustainability criteria laid down, in the present case, by the EU legislature (see, to that effect, judgment of 22 June 2017, E.ON Biofor Sverige, C‑549/15, EU:C:2017:490, paragraph 33).
45Secondly, Article 17 of Directive 2009/28 and Article 29 of Directive 2018/2001, read in the light of recitals 94 and 110 of the latter, seek to facilitate trade in sustainable biofuels between the Member States. That facilitation lies primarily in the fact that, as pointed out in paragraph 43 above, when biofuels, including those coming from other Member States, satisfy the sustainability criteria set out in Article 17 and Article 29, paragraph 8 of Article 17 and paragraph 12 of Article 29 prohibit the Member States from refusing to take those sustainable biofuels into account, for the three purposes set out in points (a) to (c) of the first subparagraph of Article 17(1) and points (a) to (c) of the first subparagraph of Article 29(1), ‘on other sustainability grounds’ than those set out in those articles (see, to that effect, judgment of 22 June 2017, E.ON Biofor Sverige, C‑549/15, EU:C:2017:490, paragraph 34).
46Although Article 17 of Directive 2009/28 and Article 29 of Directive 2018/2001 make it possible, to that extent, inter alia, to facilitate trade in sustainable biofuels, it cannot however be inferred from the above that the purpose of those articles is also to regulate the evaluation of the share of energy from renewable sources contained in fuels produced according to the co-processing procedure and, consequently, to harmonise the taking into account of that share for the three purposes referred to in points (a) to (c) of the first subparagraph of Article 17(1) and points (a) to (c) of the first subparagraph of Article 29(1). As explained above, the purpose of Articles 17 and 29 consists only in regulating the sustainability criteria which biofuels must meet in order to be taken into consideration by a Member State for those three purposes, by harmonising those criteria.
47From that perspective, the first sentence of Article 18(1) of Directive 2009/28 and the first sentence of Article 30(1) of Directive 2018/2001 merely provide that, where biofuels are to be taken into account for the three purposes referred to, respectively, in points (a) to (c) of the first subparagraph of Article 17(1) of Directive 2009/28 and in points (a) to (c) of the first subparagraph of Article 29(1) of Directive 2018/2001, Member States are to require economic operators to show that the sustainability criteria provided for in Article 17(2) to (5) and Article 29(2) to (7) have been fulfilled (see, to that effect, judgment of 22 June 2017, E.ON Biofor Sverige, C‑549/15, EU:C:2017:490, paragraph 36).
48To that end, it is apparent from the second sentence of Article 18(1) and the second sentence of Article 30(1) that Member States must require those operators to use a ‘mass balance’ system which must meet certain general characteristics which are set out, respectively, in points (a) to (c) and (a) to (d) of those provisions. In accordance with those points, such a system must therefore, first, allow consignments of raw material or biofuel with differing sustainability characteristics to be mixed, secondly, require information about the sustainability characteristics and sizes of those consignments to remain assigned to the mixture, thirdly, allow the mixing, for subsequent processing, of consignments of raw materials with different energy contents, provided that the consignment size is adapted according to the energy content and, fourthly, provide 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 (see, to that effect, judgment of 22 June 2017, E.ON Biofor Sverige, C‑549/15, EU:C:2017:490, paragraph 37).
49Those provisions cannot be interpreted as meaning that their purpose is also to regulate the evaluation of the share of energy from renewable sources contained in fuels produced according to the co-processing procedure and, consequently, to harmonise the taking into account of that share for the purposes referred to in points (a) to (c) of the first subparagraph of Article 17(1) of Directive 2009/28 and in points (a) to (c) of the first subparagraph of Article 29(1) of Directive 2018/2001.
50First, it must be stated that, having regard to their wording, the sole purpose of Article 18(1) of Directive 2009/28 and Article 30(1) of Directive 2018/2001 is to impose verification mechanisms intended to guarantee the correct application of, respectively, Article 17 of Directive 2009/28 and Article 29 of Directive 2018/2001. Thus, the information that economic operators must submit to Member States under the second subparagraph of Article 18(3) of Directive 2009/28 and the first subparagraph of Article 30(3) of Directive 2018/2001 relates, above all, to compliance with sustainability criteria set out in Article 17(2) to (5) of Directive 2009/28 and Article 29(2) to (7) of Directive 2018/2001.
51Secondly, it must be recalled that the schemes for verifying those sustainability criteria imposed by Member States, where appropriate, on economic operators, under Article 18(1) and (3) of Directive 2009/28 and Article 30(1) and (3) of Directive 2018/2001, constitute only one of the avenues for ensuring such verification under those directives. As is apparent from Article 18(4) and (5) of Directive 2009/28 and Article 30(4) and (6) of Directive 2018/2001, ‘voluntary’ national or international schemes which also include, inter alia, provisions relating to the mass balance system, may be approved by the Commission, since Article 18(7) of Directive 2009/28 and Article 30(9) of Directive 2018/2001 provide, in that regard, that, where an economic operator provides evidence or data obtained in accordance with such a scheme, to the extent covered by that decision, Member States are not to require that economic operator to provide further evidence of compliance with those sustainability criteria.
52Moreover, as is apparent from recitals 107, 109 and 110 of Directive 2018/2001, based on experience in the practical implementation of those sustainability criteria, the EU legislature intended to strengthen, in a harmonised manner, the role of voluntary national or international certification schemes, not for the evaluation of the share of energy from renewable sources contained in fuels produced according to the co-processing procedure, but only for verification of compliance with the sustainability criteria provided for in Article 17(2) to (5) of Directive 2009/28 and Article 29(2) to (7) of Directive 2018/2001.
53Lastly, it is apparent from Article 28(5) of Directive 2018/2001, read in the light of recital 126 thereof, that the EU legislature has entrusted the Commission with the power to adopt delegated acts to supplement that 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 (the ‘co-processing’ procedure).
54As the Advocate General noted in points 51 to 55 of his Opinion, the fact that the Commission adopted Delegated Regulation 2023/1640, on 5 June 2023, in implementation of that provision, confirms that the EU legislature had not intended that the mass balance method, provided for in Article 30(1) of Directive 2018/2001, was to be used to evaluate the share of energy from renewable sources contained in fuels produced according to the co-processing procedure and, consequently, to harmonise the taking into account of that share for the purposes referred to in Article 25 and in points (a) to (c) of the first subparagraph of Article 29(1) of that directive.
55It follows from the above that, since the purpose of Articles 17 and 18 of Directive 2009/28 and Articles 29 and 30 of Directive 2018/2001 is not to regulate the evaluation of the share of energy from renewable sources contained in fuels produced according to the co-processing procedure, they cannot, therefore, preclude legislation of a Member State which requires that a physical carbon-14 analysis of the HVO content of those fuels be carried out upon the entry of those fuels in the first tax warehousing facility of that Member State, even if those fuels are produced by an operator who uses a voluntary mass balance monitoring system recognised by the Commission as being comprehensive under Article 18(4) of Directive 2009/28 and Article 30(4) of Directive 2018/2001.
56In the light of the foregoing reasons, the answer to the first question is that Articles 17 and 18 of Directive 2009/28 and Articles 29 and 30 of Directive 2018/2001 must be interpreted as meaning that the mass balance monitoring system and the voluntary national or international schemes provided for in those articles are intended to assess and justify the sustainability of raw materials and biofuels, and their mixtures, and not to regulate the evaluation of the share of energy from renewable sources contained in fuels produced according to the co-processing procedure.
57Having regard to the answer given to the first question, there is no need to answer the second question.
The third question
58By its third question, the referring court asks, in essence, whether Article 34 TFEU must be interpreted as meaning that it precludes legalisation of a Member State which requires – for the purposes of calculating an incentive tax for the incorporation of biofuels – that a physical carbon-14 analysis of the HVO content of fuels produced according to the co-processing procedure be carried out, upon the entry of those fuels in the first tax warehousing facility of that Member State, where those fuels are produced in an installation, located in another Member State, which uses a mass balance system certified by a voluntary scheme recognised as being comprehensive by the Commission under Article 18(4) of Directive 2009/28 and under Article 30(4) of Directive 2018/2001, and whereas (i) fuels produced according to that procedure in the first Member State are not subject to such analysis when they are released for consumption directly upon exit from the installation and (ii) the authorities of that first Member State allow the biofuel content of exports or releases for consumption in sectors other than transport to be evaluated – in order to determine the biofuel content that may be allocated for the purposes of that tax upon exit from a production facility under a duty suspension arrangement or a national tax warehousing facility – on the basis of an average monthly incorporation rate of the facility concerned.
59At the outset, it should be borne in mind that, where a matter has been the subject of exhaustive harmonisation at EU level, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure and not in the light of primary law (judgments of 22 June 2017, E.ON Biofor Sverige, C‑549/15, EU:C:2017:490, paragraph 76, and of 4 October 2018, L.E.G.O., C‑242/17, EU:C:2018:804, paragraph 52).
60As noted in paragraphs 46 and 49 above, neither Directive 2009/28 nor Directive 2018/2001 has exhaustively harmonised the testing methods for determining the HVO content of fuels produced using the co-processing procedure, with the result that the Member States retain some discretion in that regard, while being required to comply with Article 34 TFEU.
61That being said, it should be borne in mind that, in prohibiting between Member States’ measures having equivalent effect to quantitative restrictions on imports, Article 34 TFEU covers any national measure which is capable of hindering, directly or indirectly, actually or potentially, intra-EU trade (see, to that effect, judgments of 11 July 1974, Dassonville, 8/74, EU:C:1974:82, paragraph 5, and of 22 June 2017, E.ON Biofor Sverige, C‑549/15, EU:C:2017:490, paragraph 44 and the case-law cited).
62In that regard, it should be noted that a requirement to carry out a physical carbon-14 analysis of the HVO content of fuels produced according to the co-processing procedure, such as that resulting from Article 266 quindecies of the Customs Code, read in combination with Article 3 of Decree No 2019-570 and the circular at issue, is capable of hindering, directly and actually, imports into France of biofuels produced according to that procedure from other Member States.
63As is apparent more particularly from paragraph 114 of the circular at issue, that requirement applies only to imports, intra-Community supplies and domestic consignments of fuel containing biofuels upon their entry into the first French tax warehousing facility, and not, as the referring court stresses, to biofuels manufactured according to the co-processing procedure in a refinery located in France and which are released directly for consumption in that Member State without being received in a tax warehousing facility.
64That requirement is likely to make access to the French market more difficult for fuels produced according to that procedure from Member States other than France – as, moreover, the French Government admitted at the hearing – in so far as it makes those fuels subject to costs which render their importation into that Member State more expensive and which comparable products manufactured in that Member State, which are not received in a tax warehousing facility and which are directly released for consumption in that Member State, are not subject.
65According to settled case-law, national legislation or a national practice that constitutes a measure having equivalent effect to quantitative restrictions 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 in order to attain that objective (judgment of 4 October 2018, L.E.G.O., C‑242/17, EU:C:2018:804, paragraph 63 and the case-law cited).
66In that regard, it is apparent from the order for reference that the requirement to carry out a physical carbon-14 analysis of the fuels produced according to the co-processing procedure makes it possible to calculate the TIRIB’s basis of assessment and thus contributes to promoting the incorporation of biofuels, as well as the use of energy from renewable sources, which is, in principle, useful for environmental protection. In that way, that requirement is intended, as an extension of the objectives set, respectively, in Article 3(4) of Directive 2009/28 and in Articles 3 and 25 of Directive 2018/2001, to ensure the concrete implementation of the reduction in greenhouse gas emissions, which are amongst the main causes of climate change that the European Union and its Member States have pledged to combat (see, to that effect, judgment of 4 October 2018 L.E.G.O., C‑242/17, EU:C:2018:804, paragraph 64 and the case-law cited).
67Likewise, since that requirement is intended, under paragraphs 109, 110, 114 and 115 of the circular at issue, to determine the actual volume of biofuels contained in a fuel produced according to the co-processing procedure upon entry in a tax warehousing facility, in order to calculate the TIRIB’s basis of assessment, it must be held, as the French government observed at the hearing, that that requirement contributes to preventing the risk of fraud in the chain of production of such fuels. As the referring court emphasises, that test makes it possible to ascertain conclusively the actual HVO content in a fuel consignment produced according to that procedure and, accordingly, to calculate the TIRIB accurately.
68According to settled case-law, national measures capable of hindering intra-EU trade may be justified by the objectives of protecting the environment and combating fraud provided that the measures in question are proportionate to the aim pursued (judgment of 4 October 2018, L.E.G.O., C‑242/17, EU:C:2018:804, paragraph 67 and the case-law cited).
69It is therefore necessary to verify whether national legislation, such as that in the main proceedings, meets the requirements of the principle of proportionality, that is to say, whether it is appropriate for securing the attainment of the legitimate objective pursued and whether it is necessary for those purposes (judgment of 4 October 2018, L.E.G.O., C‑242/17, EU:C:2018:804, paragraph 68 and the case-law cited).
70As regards the ability of the physical carbon-14 analysis referred to in the circular at issue to achieve those objectives, it should be noted that, according to the referring court, there is, in the current state of scientific knowledge, no other test methods which allow the actual content of ‘biosourced’ molecules, such as HVO, of fuels produced according to the co-processing procedure to be determined.
71In that regard, it should be noted that Delegated Regulation 2023/1640 provides, in Article 2 thereof, that a physical carbon-14 analysis constitutes – if it is not the only method for determining the biogenic content of a fuel produced according to the co-processing procedure – at the very least, the additional verification method if other methods are used by the economic operator concerned.
72It therefore follows that the requirement to carry out that analysis is appropriate for securing the objectives identified in paragraphs 66 and 67 above.
73Further, it must be borne in mind that 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 (judgment of 23 December 2015, Scotch Whisky Association and Others, C‑333/14, EU:C:2015:845, paragraph 37 and the case-law cited).
74It is apparent from the order for reference that the requirement to carry out a physical carbon-14 analysis is part of a more general policy aimed at promoting the use of energy from renewable sources. Nevertheless, it appears, on the basis of the information provided by the referring court, that that analysis is not required first, with regard to biofuels produced according to the co-processing procedure within a refinery located on the French territory which are released for consumption in that Member State directly from the installation, without being received in a tax warehousing facility, and, secondly, with regard to the assessment of the biofuel content of exports or releases for consumption in sectors other than transport on the basis of an average monthly incorporation rate of biofuels in the facility concerned.
75In those circumstances, as the Advocate General noted in points 100 and 102 of his Opinion and subject to the verifications incumbent on the referring court, such a requirement does not appear appropriate for securing the achievement of the objectives pursued, since it does not genuinely reflect a concern to secure those objectives in a consistent and systematic manner.
76As regards the submissions of the French Government, both in its written observations and at the hearing, that French law does not in fact provide for a difference in treatment of biofuels depending on their origin, it is important to recall that the Court must take into account, under the division of jurisdiction between the Courts of the European Union and national courts, the factual and legal context, as set out in the order for reference, of the questions referred for a preliminary ruling. Accordingly, a reference for a preliminary ruling cannot be examined in the light of the interpretation of national law relied on by the government of a Member State (judgment of 15 April 2021, État belge (Circumstances subsequent to a transfer decision), C‑194/19, EU:C:2021:270, paragraph 26 and the case-law cited).
77In the light of the foregoing reasons, the answer to the third question is that Article 34 TFEU must be interpreted as precluding legislation of a Member State which requires, for the purposes of calculating an incentive tax for the incorporation of biofuels, that a physical carbon-14 analysis of the biofuel content (HVO) of fuels produced according to the co-processing procedure be carried out, upon the entry of those fuels in the first tax warehousing facility of that Member State, where those fuels are produced in an installation located in another Member State, which uses a voluntary mass balance monitoring system recognised by the Commission as being comprehensive under Article 18(4) of Directive 2009/28 and under Article 30(4) of Directive 2018/2001, and whereas (i) fuels produced according to that procedure in the first Member State are not subject to such an analysis when they are released for consumption directly from the installation and (ii) the authorities of that first Member State allow the biofuel content of exports or releases for consumption in sectors other than transport to be evaluated – in order to determine the biofuel content that may be allocated for the purposes of that tax upon exit from a production facility under a duty suspension arrangement or a national tax warehousing facility – on the basis of an average monthly incorporation rate of the facility concerned.
Costs
78Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Third Chamber) hereby rules:
1.Articles 17 and 18 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, as amended by Directive (EU) 2015/1513 of the European Parliament and of the Council of 9 September 2015, and Articles 29 and 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,must be interpreted as meaning that the mass balance monitoring system and the voluntary national or international schemes provided for in those articles are intended to assess and justify the sustainability of raw materials and biofuels, and their mixtures, and not to regulate the evaluation of the share of energy from renewable sources contained in fuels produced according to the co-processing procedure.
2.Article 34 TFEUmust be interpreted as precluding legislation of a Member State which requires, for the purposes of calculating an incentive tax for the incorporation of biofuels, that a physical carbon-14 analysis of the biofuel content (HVO) of fuels produced according to the co-processing procedure be carried out, upon the entry of those fuels in the first tax warehousing facility of that Member State, where those fuels are produced in an installation located in another Member State, which uses a voluntary mass balance monitoring system recognised by the European Commission as being comprehensive under Article 18(4) of Directive 2009/28 and under Article 30(4) of Directive 2018/2001, and whereas (i) fuels produced according to that procedure in the first Member State are not subject to such an analysis when they are released for consumption directly from the installation and (ii) the authorities of that first Member State allow the biofuel content of exports or releases for consumption in sectors other than transport to be evaluated – in order to determine the biofuel content that may be allocated for the purposes of that tax upon exit from a production facility under a duty suspension arrangement or a national tax warehousing facility – on the basis of an average monthly incorporation rate of the facility concerned.
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