Burgo Group SpA v Gestore dei Servizi Energetici SpA - GSE.

• Jurisdiction: European Union
• Date: 17 September 2020
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Seventh Chamber)

17 September 2020 (*)

(Reference for a preliminary ruling – Environment – Promotion of cogeneration – Provision of national law establishing a support scheme – Scheme supporting non-high-efficiency cogeneration plants extended beyond 31 December 2010)

In Case C‑92/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 11 October 2018, received at the Court on 5 February 2019, in the proceedings

Burgo Group SpA

v

Gestore dei Servizi Energetici SpA – GSE,

interveners:

Ministero dello Sviluppo economico,

Autorità per l’Energia elettrica e il Gas,

THE COURT (Seventh Chamber),

composed of P.G. Xuereb, President of the Chamber, T. von Danwitz and A. Kumin (Rapporteur), Judges,

Advocate General: G. Hogan,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Burgo Group SpA, by R. Montanaro, L.G. Ferrua Magliani and E. Assuntini, avvocati,

– Gestore dei Servizi Energetici SpA ‐ GSE, by A. Police, A. Pugliese and P.R. Molea, avvocati,

– the Italian Government, by G. Palmieri, acting as Agent, and by G. Palatiello, avvocato dello Stato,

– the European Commission, by G. Gattinara, D. Recchia, K. Talabér-Ritz and Y.G. Marinova, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 12(3) of Directive 2004/8/EC of the European Parliament and of the Council of 11 February 2004 on the promotion of cogeneration based on a useful heat demand in the internal energy market and amending Directive 92/42/EEC (OJ 2004 L 52, p. 50), of Article 107(1) TFEU and of the principles of equal treatment and non-discrimination.

2 The request has been made in proceedings between Burgo Group SpA and Gestore dei Servizi Energetici SpA – GSE (Energy Services Management Company, Italy) concerning the latter’s refusal to recognise Burgo Group as being eligible for a support scheme which establishes, inter alia, an exemption from the obligation to purchase ‘green certificates’.

Legal context

EU law

3 Directive 2004/8 was adopted as part of the European Union’s environment policy on the basis of Article 175(1) EC.

4 Recitals 1, 2, 11, 15, 16, 24, 26 and 32 of that directive state:

‘(1) The potential for use of cogeneration as a measure to save energy is underused in the Community at present. Promotion of high-efficiency cogeneration based on a useful heat demand is a Community priority given the potential benefits of cogeneration with regard to saving primary energy, avoiding network losses and reducing emissions, in particular of greenhouse gases. In addition, efficient use of energy by cogeneration can also contribute positively to the security of energy supply and to the competitive situation of the European Union and its Member States. It is therefore necessary to take measures to ensure that the potential is better exploited within the framework of the internal energy market.

(2) 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 – Statements made with regard to decommissioning and waste management activities (OJ 2003 L 176, p. 37)] establishes common rules for the generation, transmission, distribution and supply of electricity within the internal market in electricity. In this context, the development of cogeneration contributes to enhancing competition, also with regard to new market actors.

…

(11) High-efficiency cogeneration is in this Directive defined by the energy savings obtained by combined production instead of separate production of heat and electricity. Energy savings of more than 10% qualify for the term “high-efficiency cogeneration”. To maximise the energy savings and to avoid energy savings being lost, the greatest attention must be paid to the functioning conditions of cogeneration units.

…

(15) The general objective of this Directive should be to establish a harmonised method for calculation of electricity from cogeneration and necessary guidelines for its implementation, taking into account methodologies such as those currently under development by European standardisation organisations. This method should be adjustable to take account of technical progress. Application of the calculations in Annexes II and III to micro-cogeneration units could, in accordance with the principle of proportionality, be based on values resulting from a type testing process certified by a competent, independent body.

(16) The definitions of cogeneration and of high-efficiency cogeneration used in this Directive do not prejudge the use of different definitions in national legislation, for purposes other than those set out in this Directive. …

…

(24) Public support should be consistent with the provisions of the Community guidelines on State aid for environmental protection, including as regards the non-cumulation of aid. These guidelines currently allow certain types of public support if it can be shown that the support measures are beneficial in terms of protection of the environment because the conversion efficiency is particularly high, because the measures will allow energy consumption to be reduced or because the production process will be less damaging to the environment. Such support will in some cases be necessary to further exploit the potential for cogeneration, in particular to take account of the need to internalise external costs.

…

(26) Member States operate different mechanisms of support for cogeneration at the national level, including investment aid, tax exemptions or reductions, green certificates and direct price support schemes. One important means to achieve the aim of this Directive is to guarantee the proper functioning of these mechanisms, until a harmonised Community framework is put into operation, in order to maintain investor confidence. The Commission intends to monitor the situation and report on experiences gained with the application of national support schemes.

…

(32) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 [EC], general principles providing a framework for the promotion of cogeneration in the internal energy market should be set at Community level, but the detailed implementation should be left to Member States, thus allowing each Member State to choose the regime which corresponds best to its particular situation. This Directive confines itself to the minimum required in order to achieve those objectives and does not go beyond what is necessary for that purpose.’

5 As stated in Article 1 of Directive 2004/8, the purpose of the directive is ‘to increase energy efficiency and improve security of supply by creating a framework for promotion and development of high-efficiency cogeneration of heat and power based on useful heat demand and primary energy savings in the internal energy market, taking into account the specific national circumstances especially concerning climatic and economic conditions’.

6 Article 2 of Directive 2004/8 provides that the directive is to ‘apply to cogeneration as defined in Article 3 and cogeneration technologies listed in Annex I’.

7 Article 3 of that directive, headed ‘Definitions’...