—

Belgische Petroleum Unie VZW, Continental Tanking Company NV, Belgische Olie Maatschappij NV, Octa NV, Van Der Sluijs Group Belgium NV, Belgomazout Liège NV, Martens Energie NV, Transcor Oil Services NV, Mabanaft BV, Belgomine NV, Van Raak Distributie NV, Bouts NV, Gabriels & Co NV, Joassin René NV, Orion Trading Group NV, Petrus NV and Argosoil Belgium BVBA, by P. Mallien and M. Deketelaere, advocaten,

—

the Belgische Staat, by J.-F. De Bock, advocaat,

—

Belgian Bioethanol Association VZW and Belgian Biodiesel Board VZW, by P. De Bandt, avocat,

—

the Belgian Government, by C. Pochet, acting as Agent, and by J.-F. De Bock, advocaat,

—

the Netherlands Government, by C. Wissels and B. Koopman, acting as Agents,

—

the European Commission, by A. Alcover San Pedro, K. Herrmann and E. Manhaeve, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Articles 3 to 5 of Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the quality of petrol and diesel fuels and amending Council Directive 93/12/EEC (OJ 1998 L 350, p. 58), as amended by Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009 (OJ 2009 L 140, p. 88; ‘Directive 98/70’), Article 4(3) of the Treaty of the European Union (TEU), Articles 26(2), 28 and 34 to 36 of the Treaty on the Functioning of the European Union (TFEU), and Article 8 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18; ‘Directive 98/34’).

2

The request has been made in proceedings between Belgische Petroleum Unie VZW, Continental Tanking Company NV, Belgische Olie Maatschappij NV, Octa NV, Van Der Sluijs Group Belgium NV, Belgomazout Liège NV, Martens Energie NV, Transcor Oil Services NV, Mabanaft BV, Belgomine NV, Van Raak Distributie NV, Bouts NV, Gabriels & Co NV, Joassin René NV, Orion Trading Group NV, Petrus NV and Argosoil Belgium BVBA (‘BPU and Others’), and the Belgische Staat concerning the Law of 22 July 2009 on the obligation to blend fossil fuels released for consumption with biofuels (Belgisch Staatsblad, 3 August 2009, p. 51920; the ‘Law on the blending obligation’).

3

Article 1 of Directive 98/34 states:

‘For the purposes of this Directive, the following meanings shall apply:

...

...

...’

4

The first subparagraph of Article 8(1) of this Directive provides:

‘Subject to Article 10, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where these have not already been made clear in the draft.’

5

Article 10(1) of the Directive provides:

‘Articles 8 and 9 shall not apply to those laws, regulations and administrative provisions of the Member States or voluntary agreements by means of which Member States:

...

6

Article 3 of Directive 98/70, entitled ‘Petrol’, stipulates in paragraphs 1 to 3:

‘1.   No later than 1 January 2000, Member States shall prohibit the marketing of leaded petrol within their territory.

2.   Member States shall ensure that petrol may be placed on the market within their territory only if it complies with the environmental specifications set out in Annex I.

However, Member States may, for the outermost regions, make specific provisions for the introduction of petrol with a maximum sulphur content of 10 mg/kg. Member States making use of this provision shall inform the Commission accordingly.

3.   Member States shall require suppliers to ensure the placing on the market of petrol with a maximum oxygen content of 2.7% and a maximum ethanol content of 5% until 2013 and may require the placing on the market of such petrol for a longer period if they consider it necessary. They shall ensure the provision of appropriate information to consumers concerning the biofuel content of petrol and, in particular, on the appropriate use of different blends of petrol.’

7

Annex I to Directive 98/70, entitled ‘Environmental specifications for market fuels to be used for vehicles equipped with positive-ignition engines’, sets a maximum ethanol limit of 10% vol/vol for petrol.

8

Article 4(1) of this Directive, entitled ‘Diesel fuel’, provides:

‘Member States shall ensure that diesel fuel may be placed on the market in their territory only if it complies with the specifications set out in Annex II.

Notwithstanding the requirements of Annex II, Member States may permit the placing on the market of diesel with a fatty acid methyl ester (FAME) content greater than 7%.

Member States shall ensure the provision of appropriate information to consumers concerning the biofuel, in particular FAME, content of diesel fuel.’

9

Under Annex II to that Directive, entitled ‘Environmental specifications for market fuels to be used for vehicles equipped with compression ignition engines’, the maximum limit for FAME diesel content is set at 7% vol/vol.

10

Article 5 of the same Directive, entitled ‘Free circulation’, reads as follows:

‘No Member State may prohibit, restrict or prevent the placing on the market of fuels which comply with the requirements of this Directive.’

11

According to recitals 19 and 21 of Directive 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport (OJ 2003 L 123, p. 42):

...

12

According to Article 1, this Directive aims at promoting the use of biofuels or other renewable fuels to replace diesel or petrol for transport purposes in each Member State, with a view to contributing to objectives such as meeting climate change commitments, environmentally friendly security of supply and promoting renewable energy sources.

13

Article 3(1) of this Directive reads as follows:

14

Recital 9 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), states:

‘The European Council of March 2007 reaffirmed the Community’s commitment to the Community-wide development of energy from renewable sources beyond 2010. It endorsed a mandatory target of a 20% share of energy from renewable sources in overall Community energy consumption by 2020 and a mandatory 10% minimum target to be achieved by all Member States for the share of biofuels in transport petrol and diesel consumption by 2020, to be introduced in a cost-effective way. It stated that the binding character of the biofuel target is appropriate, subject to production being sustainable, second-generation biofuels becoming commercially available and [Directive 98/70/EC] being amended to allow for adequate levels of blending. …’

15

Under Article 1 of Directive 2009/28:

‘This Directive establishes a common framework for the promotion of energy from renewable sources. It sets mandatory national targets for the overall share of energy from renewable sources in gross final consumption of energy and for the share of energy from renewable sources in transport. …’

16

The first subparagraph of Article 3(4) of this Directive states:

‘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.’

17

Article 26(2) and (3) of the same Directive provides:

‘2.   In Directive 2003/30/EC, Article 2, Article 3(2), (3) and (5), and Articles 5 and 6 shall be deleted with effect from 1 April 2010.

3.   Directives 2001/77/EC and 2003/30/EC shall be repealed with effect from 1 January 2012.’

18

Under Article 4(1) of the Law on the blending obligation:

‘Every registered petroleum company which releases petrol products and/or diesel products for consumption is also obliged in the same calendar year to make available for consumption a quantity of sustainable biofuels as follows:

19

Article 5 of the Law on the blending obligation reads as follows:

‘The release for consumption of sustainable biofuels within the meaning of Article 4 occurs by blending with the petrol products and/or diesel products to be released for consumption, in conformity with the product standards NBN EN590 for diesel products and NBN EN228 for petrol products.’

20

By means of an application made before the referring court on 15 October 2009, BPU and Others sought the annulment of the Law on the blending obligation.

21

In this context, the Grondwettelijk Hof (Constitutional Court) (Belgium) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

22

Belgian Bioethanol Association VZW and Belgian Biodiesel Board VZW submit that the request for a preliminary ruling is inadmissible on the ground that, in the proceedings before the referring court, BPU and Others have never relied on a breach of Directives 98/34 and 98/70, and so the interpretation of European Union law sought by that court is manifestly unrelated to the subject-matter of the main proceedings.

23

In that regard, it should be borne in mind that the fact that the parties to the main action did not raise a point of European Union law before the referring court does not preclude the latter from bringing the matter before the Court of Justice. In providing that a request for a preliminary ruling may be submitted to the Court where ‘a question is raised before any court or tribunal of a member state’, the second and third paragraphs of Article 267 TFEU are not intended to restrict this procedure exclusively to cases where one or other of the parties to the main action has taken the initiative of raising a point concerning the interpretation or the validity of European Union law, but also extend to cases where a question of this kind is raised by the court or tribunal itself, which considers that a decision thereon by the Court of Justice is ‘necessary to enable it to give judgment’ (Case 126/80 Salonia [1981] ECR 1563, paragraph 7, and judgment of 8 March 2012 in Case C-251/11 Huet, paragraph 23).

24

Moreover, according to settled case-law, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling (Case C-341/05 Laval un Partneri [2007] ECR I-11767, paragraph 45, and Joined Cases C-317/08 to C-320/08 Alassini and Others [2010] ECR I-2213, paragraph 25).

25

Furthermore, as Directive 98/70 contains provisions for environmental specifications relating to the composition of petrol and diesel fuels of which this Directive is intended to ensure free circulation within the European Union, and as the referring court considers that a breach of these provisions by Belgian legislation would be contrary to the freedom of trade and industry as well as the principles of equality and non-discrimination, it cannot be argued that the interpretation of European Union law sought by that court is manifestly unrelated to the subject-matter of the main proceedings.

26

In those circumstances, the request for a preliminary ruling is admissible.

27

It should be borne in mind, as a preliminary point, that, where a matter is regulated in a harmonised manner at European Union level, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure (see Case C-37/92 Vanacker and Lesage [1993] ECR I-4947, paragraph 9, Case C-324/99 DaimlerChrysler [2001] ECR I-9897, paragraph 32, and Case C-132/08 Lidl Magyarország [2009] ECR I-3841, paragraphs 42 and 46).

28

In those circumstances, it must be considered that, by its first question, the referring court is essentially asking whether Articles 3 to 5 of Directive 98/70 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, requiring petroleum companies placing petrol and/or diesel fuels on the market in the same calendar year also to place on the market a quantity of biofuels calculated as a percentage of the total amount of those products which they market annually.

29

Article 3(2) of Directive 98/70, read in conjunction with Annex I thereto, sets a maximum ethanol limit of 10% vol/vol for petrol.

30

Under Article 4(1) of this Directive, read in conjunction with Annex II thereto, the maximum limit for FAME content of diesel fuel is, subject to the authorisation referred to in the second subparagraph of paragraph 1, set at 7% vol/vol.

31

Consequently, by requiring petroleum companies to market a minimum quantity of bioethanol and FAME, i.e. 4% vol/vol of the amount of petrol and diesel fuels which they respectively place on the market, the Law on the blending obligation makes provision for compulsory minimum percentages of biofuels that are lower than the maximum limits laid down in Articles 3 and 4 of Directive 98/70.

32

It follows that those percentages comply with Articles 3 and 4, and that these provisions do not preclude legislation such as that at issue in the main proceedings.

33

However, it must be observed that Directive 98/70 does not set minimum limits for the biofuel content of petrol or diesel fuels, and that, in accordance with Article 5 of this Directive, the placing of fuels on the market which comply with the requirements of the Directive may not be prohibited, restricted or prevented.

34

The Law on the blending obligation makes provision for compulsory minimum percentages of biofuels which, pursuant to Article 5 of the Law, must be placed on the market by blending with petrol and diesel fuels.

35

The compulsory minimum percentages of biofuels laid down by the Law on the blending obligation apply, not to each litre of fuel placed on the market, but to the total amount of fuel marketed annually.

36

Such an obligation, as was pointed out by the Advocate General in points 48 to 52 of her Opinion, could restrict the marketing of fuels that comply with the requirements of Directive 98/70.

37

However, the provisions of Directive 98/70, and in particular Article 5, cannot be interpreted independently of those of Directives 2003/30 and 2009/28, which were in force at the material time in the main proceedings and at the lodging of the request for a preliminary ruling.

38

Indeed, the fact that Directives 2009/28 and 2009/30 (the latter amending Directive 98/70) were adopted and came into force on the same date, and the fact that they, along with Directive 2003/30, form part of a comprehensive package of measures aimed at promoting the production and use of renewable energies indicate that the European Union legislature wanted to ensure the necessary consistency between these Directives.

39

In that regard, it should be noted that Directive 2003/30, which, according to Article 1, aimed at promoting the use of biofuels to replace diesel or petrol for transport purposes in each Member State, did not impose any requirements on the Member States in regard to the method of attaining the national indicative targets referred to in Article 3(1), but left them freedom of choice in this regard as to the type of measures to be adopted (see Case C-201/08 Plantanol [2009] ECR I-8343, paragraph 35).

40

It is therefore apparent from recital 19 of Directive 2003/30 that Member States had various means at their disposal for achieving the objectives laid down by that Directive, including a tax exemption scheme, financial assistance for the processing industry or the establishment of a compulsory minimum percentage of biofuels for oil companies (see Plantanol judgment, paragraph 36).

41

Consequently, Article 5 of Directive 98/70, read in conjunction with the provisions of Directive 2003/30, did not preclude a Member State from requiring petroleum companies to place on its market a compulsory percentage of biofuels for transport purposes with a view to achieving the national indicative targets which it had laid down in accordance with Article 3(1) of Directive 2003/30.

42

Such a conclusion applies all the more when Article 5 is read in conjunction with the provisions of Directive 2009/28, which, as can be seen from recital 9 and Article 1 thereof, sets mandatory national targets for the overall share of energy from renewable sources in the consumption of energy in transport.

43

In that respect, recital 9 sets out the objective endorsed by the European Council in March 2007 for a mandatory 10% minimum target to be achieved by all Member States for the share of biofuels in total petrol and diesel consumption for transport by 2020, to be introduced in a cost-effective way.

44

That target is confirmed in the first subparagraph of Article 3(4) of Directive 2009/28, which provides that the share of energy from renewable sources in all forms of transport in 2020 is to be at least 10% of the final consumption of energy in transport in each Member State.

45

That was the context in which Directive 98/70 was amended by Directive 2009/30, in accordance with the target set for each Member State by the latter directive and by Directives 2003/30 and 2009/28, to allow, inter alia, for adequate levels of blending between biofuels and fossil fuels, such as those resulting from the requirements of Articles 3(2) and 4(1) of Directive 98/70, read in conjunction with Annexes I and II respectively of that directive.

46

Consequently, national rules imposing compulsory minimum percentages of biofuels on petroleum companies so as to achieve the national targets set by Directives 2003/30 and 2009/28 cannot be considered to be contrary to Articles 3 to 5 of Directive 98/70, where these percentages comply with the maximum limits set by that directive and where they apply, not to each litre of fuel placed on the market, but to the total amount of fuel marketed annually by those companies.

47

In those circumstances, the answer to the first question is that Articles 3 to 5 of Directive 98/70 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which, in accordance with the objective of promoting the use of biofuels in transport, set for each Member State by Directives 2003/30, 2009/28 and 2009/30, requires petroleum companies placing petrol and/or diesel fuels on the market also to place on the market, in the same calendar year, a quantity of biofuels by blending them with those products, where this quantity is calculated as a percentage of the total amount of those products which they market annually, and where those percentages comply with the maximum limits set by Directive 98/70.

48

By its second question, the referring court asks, in essence, whether Article 8 of Directive 98/34 must be interpreted as requiring notification of draft national legislation which obliges petroleum companies placing petrol and/or diesel fuels on the market also to place on the market certain percentages of biofuels in the same calendar year.

49

It is settled case-law that Directive 98/34 is designed to protect, by means of preventive control, the free movement of goods, which is one of the foundations of the European Union, and that this control serves a useful purpose in that technical regulations falling within the scope of that directive may constitute obstacles to trade in goods between Member States, such obstacles being permissible only if they are necessary to satisfy compelling requirements relating to the public interest (see Case C-303/04 Lidl Italia [2005] ECR I-7865, paragraph 22, Case C-433/05 Sandström [2010] ECR I-2885, paragraph 42, and Case C-361/10 Intercommunale Intermosane and Fédération de l’industrie et du gaz [2011] ECR I-5079, paragraph 10).

50

As the obligation to notify referred to in the first subparagraph of Article 8(1) of Directive 98/34 is essential for achieving that control, the effectiveness of such control will be that much greater if that directive is interpreted as meaning that failure to observe the obligation to notify constitutes a substantive procedural defect such as to render the technical regulations in question inapplicable and therefore unenforceable against individuals (see Lidl Italia, paragraph 23 and Sandström, paragraph 43).

51

In this context, it should be recalled that it follows from Article 1(11) of Directive 98/34 that the definition of ‘technical regulation’ can be broken down into three categories: first, the ‘technical specification’ within the meaning of Article 1(3) of that directive; second, the ‘other requirements’, as defined in Article 1(4) of that directive; and, third, the prohibition of the manufacture, importation, marketing or use of a product referred to in Article 1(11) of the directive (see Case C-267/03 Lindberg [2005] ECR I-3247, paragraph 54, Case C-20/05 Schwibbert [2007] ECR I-9447, paragraph 34 and Intercommunale Intermosane and Fédération de l’industrie et du gaz, paragraph 11).

52

Even if the provisions of the Law on the blending obligation come within one of these three categories, it is first necessary to examine whether, in a situation such as the one at issue in the main proceedings, the obligation to give notice under the first subparagraph of Article 8(1) of Directive 98/34 applies.

53

In that regard, it must be borne in mind that by virtue of Article 10(1), final indent, of Directive 98/34, Article 8 does not apply to laws, regulations and administrative provisions of the Member States by means of which Member States restrict themselves to amending a technical regulation within the meaning of Article 1(11) of the same directive, in accordance with a Commission request with a view to removing an obstacle to trade.

54

With regard to the case at issue in the main proceedings, it is apparent from the documents before the Court that, pursuant to the first subparagraph of Article 8(1) of Directive 98/34, the Kingdom of Belgium, in 2007, communicated to the Commission draft technical rules introducing a requirement to place biofuels on the market, which gave rise to a detailed opinion and observations from the Commission, issued under Articles 9(2) and 8(2) respectively of that directive, concerning the minimum percentages of biofuels imposed by that draft as well as the rules for applying those percentages.

55

It is also apparent from the documents that, following that detailed opinion and those observations, the Kingdom of Belgium, in 2009, notified the Commission of a preliminary draft of the Law on the blending obligation in which the provisions relating to compulsory minimum percentages of biofuels and to the rules for applying those percentages had been amended in order to take account of that opinion and those observations.

56

As a result, the Kingdom of Belgium, in these circumstances, restricted itself to amending the provisions of draft legislation in accordance with a request from the Commission to remove a barrier to trade, and so, by virtue of Article 10(1), final indent, of Directive 98/34, the obligation to notify the Commission under the first subparagraph of Article 8(1) of that directive does not apply to the draft Law on the blending obligation.

57

In those circumstances, the answer to the second question is that Article 8 of Directive 98/34, read in conjunction with Article 10(1), final indent, of that directive, must be interpreted as not requiring notification of draft national legislation which obliges petroleum companies placing petrol and/or diesel fuels on the market also to place on the market, in the same calendar year, certain percentages of biofuels, where, after having been notified pursuant to the first subparagraph of Article 8(1), the draft was amended to take account of the Commission’s observations on it, and the amended draft was then communicated to the Commission.

58

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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.

On those grounds, the Court (Third Chamber) hereby rules: