Opinion of Advocate General Campos Sánchez-Bordona delivered on 3 December 2020.

• Jurisdiction: European Union
• Celex Number: 62019CC0705
• ECLI: ECLI:EU:C:2020:989
• Date: 03 December 2020
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 3 December 2020 (1)

Case C‑705/19

Axpo Trading Ag

v

Gestore dei Servizi Energetici SpA – GSE

(Request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy))

(Reference for a preliminary ruling – Free movement of goods – Promoting the use of energy produced from renewable sources – Imports of electricity from Switzerland – National provision on the obligation to purchase green certificates – Charge having an effect equivalent to a customs duty – Discriminatory internal tax – Measure having an effect equivalent to a quantitative restriction on imports – State aid – Transfer of State resources – Selectivity of the aid – Treaty between the European Union and Switzerland)

1. Directive 2009/28/CE, (2) which will be replaced from 1 July 2021 by Directive (EU) 2018/2001, (3) has given a major boost to the use of energy from renewable sources. One of the mechanisms or ‘support systems’ for which it provides as a means of incentivising the production of this type of energy is the green certificate system. (4)

2. When it evaluated mechanisms to support electricity generated from renewable energy sources (‘RES-E’) in 2005, the Commission summarised as follows the green certificate system used by, among other Member States, Italy: ‘under the green certificate system … RES-E is sold at conventional power-market prices. In order to finance the additional cost of producing green electricity, and to ensure that the desired green electricity is generated, all consumers (or, in some countries, producers) are obliged to purchase a certain number of green certificates from RES-E producers according to a fixed percentage, or quota, of their total electricity consumption/production …’. (5)

3. The Court has already ruled on the green certificate system, in particular from the point of view of the free movement of goods. (6) This reference for a preliminary ruling will enable it to build on its case-law by addressing the compatibility of the Italian green certificate legislation with EU law.

I. Legal framework

A. EU law

1. EEC-Switzerland Free Trade Agreement (7)

4. Article 2 provides:

‘This Agreement shall apply to products originating in the Community or Switzerland:

i) which fall within Chapters 25 to 97 of the Harmonised Commodity Description and Coding System, excluding the products listed in Annex I;

ii) which are specified in Annex II;

iii) which are specified in Protocol 2, with due regard to the arrangements provided for in that Protocol’.

5. Article 6(1) states:

‘No new charge having an effect equivalent to a customs duty on imports shall be introduced in trade between the Community and Switzerland’.

6. Article 13(1) provides:

‘No new quantitative restriction on imports or measures having equivalent effect shall be introduced in trade between the Community and Switzerland’.

2. Directive 2009/28

7. Recitals 15, 25, 52 and 56 read:

‘(15) The starting point, the renewable energy potential and the energy mix of each Member State vary. It is therefore necessary to translate the Community 20% target into individual targets for each Member State, with due regard to a fair and adequate allocation taking account of Member States’ different starting points and potentials, including the existing level of energy from renewable sources and the energy mix. …

…

(25) Member States have different renewable energy potentials and operate different schemes of support for energy from renewable sources at the national level. The majority of Member States apply support schemes that grant benefits solely to energy from renewable sources that is produced on their territory. For the proper functioning of national support schemes it is vital that Member States can control the effect and costs of their national support schemes according to their different potentials. One important means to achieve the aim of this Directive is to guarantee the proper functioning of national support schemes, as under 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 (OJ 2001 L 283, p. 33)], in order to maintain investor confidence and allow Member States to design effective national measures for target compliance. This Directive aims at facilitating cross-border support of energy from renewable sources without affecting national support schemes. It introduces optional cooperation mechanisms between Member States which allow them to agree on the extent to which one Member State supports the energy production in another and on the extent to which the energy production from renewable sources should count towards the national overall target of one or the other. In order to ensure the effectiveness of both measures of target compliance, i.e. national support schemes and cooperation mechanisms, it is essential that Member States are able to determine if and to what extent their national support schemes apply to energy from renewable sources produced in other Member States and to agree on this by applying the cooperation mechanisms provided for in this Directive’.

…

(52) Guarantees of origin issued for the purpose of this Directive have the sole function of proving to a final customer that a given share or quantity of energy was produced from renewable sources. A guarantee of origin can be transferred, independently of the energy to which it relates, from one holder to another. However, with a view to ensuring that a unit of electricity from renewable energy sources is disclosed to a customer only once, double counting and double disclosure of guarantees of origin should be avoided. Energy from renewable sources in relation to which the accompanying guarantee of origin has been sold separately by the producer should not be disclosed or sold to the final customer as energy from renewable sources. It is important to distinguish between green certificates used for support schemes and guarantees of origin.

…

(56) Guarantees of origin do not by themselves confer a right to benefit from national support schemes’.

8. According to Article 1 thereof, Directive 2009/28 establishes a common framework for the promotion of energy from renewable sources in gross final consumption of energy and for the share of energy from renewable sources in transport.

9. Article 3(1) and (3) concerns the national overall target for the share of energy from renewable sources and measures for compliance with that share.

10. Article 3(3) states:

‘In order to reach the targets set in paragraphs 1 and 2 of this Article Member States may, inter alia, apply the following measures:

a) support schemes;

b) measures of cooperation between different Member States and with third countries for achieving their national overall targets in accordance with Articles 5 to 11.

Without prejudice to Articles 87 and 88 of the Treaty, Member States shall have the right to decide, in accordance with Articles 5 to 11 of this Directive, to which extent they support energy from renewable sources which is produced in a different Member State’.

11. Article 7(1) provides:

‘Two or more Member States may cooperate on all types of joint projects relating to the production of electricity, heating or cooling from renewable energy sources. That cooperation may involve private operators’.

12. Article 9(1) states:

‘One or more Member States may cooperate with one or more third countries on all types of joint projects regarding the production of electricity from renewable energy sources. Such cooperation may involve private operators’.

13. Article 15 states:

‘1. For the purposes of proving to final customers the share or quantity of energy from renewable sources in an energy supplier’s energy mix in accordance with Article 3(6) of Directive 2003/54/EC, Member States shall ensure that the origin of electricity produced from renewable energy sources can be guaranteed as such within the meaning of this Directive, in accordance with objective, transparent and non-discriminatory criteria.

To that end, Member States shall ensure that a guarantee of origin is issued in response to a request from a producer of electricity from renewable energy sources.

…

The guarantee of origin shall have no function in terms of a Member State’s compliance with Article 3. …

9. Member States shall recognise guarantees of origin issued by other Member States in accordance with this Directive exclusively as proof of the elements referred to in paragraphs 1 and 6(a) to (f). A Member State may refuse to recognise a guarantee of origin only when it has well-founded doubts about its accuracy, reliability or veracity. The Member State shall notify the Commission of such a refusal and its justification.

…’

B. Italian law

1. Rules prior to 2011

14. The relevant paragraphs of the judgment in Green Network describe as follows the green certificate scheme in force in Italy prior to the 2011 reform:

‘12 Article 11(1) of Legislative Decree No 79 on the implementation of Directive 96/92/EC [of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity (OJ 1997 L 27, p. 20)] (“Legislative Decree No 79/1999”) requires operators having produced or imported electricity to feed into the national grid, during the following year, a quota of electricity produced from renewable energy sources (“green electricity”) from installations that entered into service or increased their production after the entry into force of that decree. Pursuant to Article 11(3) of the same decree, this requirement may be discharged by, inter alia, purchasing all or part of that quota from other producers, provided that the electricity fed into the national grid is green, or by purchasing green certificates from the designated national grid manager, Gestore servizi...