–

Vapo Atlantic SA, by N. Franco Bruno, R. Leandro Vasconcelos and M. Martins Pereira, advogados,

–

Entidade Nacional para o Setor Energético E.P.E., by G. Capitão, advogado,

–

the Portuguese Government, by P. Barros da Costa, M. Branco, C. Chambel Alves and J. Reis Silva, acting as Agents,

–

the European Commission, by G. Braga da Cruz, B. De Meester and M. Escobar Gómez, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Article 1(3), Article 8(1) and the third indent of Article 10(1) 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 Council Directive 2006/96/EC of 20 November 2006 (OJ 2006 L 363, p. 81) (‘Directive 98/34’), Article 7a(2) 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’), the second subparagraph of Article 4(1) of Directive 2009/30 and Article 3(4) 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).

2

The request has been made in proceedings between Vapo Atlantic SA and the Entidade Nacional para o Setor Energético E.P.E. (National Entity for the Energy Sector; ‘ENSE’) concerning a decision made by ENSE requiring Vapo Atlantic to pay financial compensation for failing to prove the incorporation of biofuels into motor fuels which the latter had released for consumption in the second quarter of 2020.

3

Article 1 of Directive 98/34 provided:

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

…

…

…

…

…’

4

The first subparagraph of Article 8(1) of that directive provided:

‘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

Under the third indent of Article 10(1) of that directive:

‘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 7a of Directive 98/70, entitled ‘Greenhouse gas emission reductions’, provides in paragraphs 1 and 2 thereof:

‘1.   Member States shall designate the supplier or suppliers responsible for monitoring and reporting life cycle greenhouse gas emissions per unit of energy from fuel and energy supplied. In the case of providers of electricity for use in road vehicles, Member States shall ensure that such providers may choose to become a contributor to the reduction obligation laid down in paragraph 2 if they can demonstrate that they can adequately measure and monitor electricity supplied for use in those vehicles.

With effect from 1 January 2011, suppliers shall report annually, to the authority designated by the Member State, on the greenhouse gas intensity of fuel and energy supplied within each Member State by providing, as a minimum, the following information:

Member States shall ensure that reports are subject to verification.

The Commission shall, where appropriate, establish guidelines for the implementation of this paragraph.

2.   Member States shall require suppliers to reduce as gradually as possible life cycle greenhouse gas emissions per unit of energy from fuel and energy supplied by up to 10% by 31 December 2020, compared with the fuel baseline standard referred to in paragraph 5(b). That reduction shall consist of:

7

Recitals 8 and 9 of Directive 2009/30 state:

8

Article 4 of Directive 2009/30, headed ‘Transposition’, provides:

‘1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 2010 at the latest.

They shall forthwith communicate to the Commission the text of those measures.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.

2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.’

9

Directive 2009/28 was repealed by 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), with effect from 1 July 2021. However, in view of the date of the facts at issue, the dispute in the main proceedings remains governed by the provisions of Directive 2009/28.

10

Recitals 8 and 9 of Directive 2009/28 state:

11

Article 1 of Directive 2009/28, entitled ‘Subject matter and scope’, provided:

‘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. …’

12

Article 3 of Directive 2009/28, headed ‘Mandatory national overall targets and measures for the use of energy from renewable sources’, provided, 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.

…’

13

In its latest version in force, Directive 2009/28 had been amended by Directive (EU) 2015/1513 of the European Parliament and of the Council of 9 September 2015 (OJ 2015 L 239, p. 1), which provided, in accordance with Article 4(1) thereof, that the amendments made by that directive were to be transposed by the Member States by 10 September 2017, and they were also required to immediately inform the Commission of any transposition measures.

14

Article 11(1) of Decreto-Lei n.° 117/2010 (Decree-Law No 117/2010) of 25 October 2010, as amended by Decreto-Lei n.° 6/2012 (Decree-Law No 6/2012) of 17 January 2012 (‘Decree-Law No 117/2010’), provides:

‘Entities which release motor fuel for consumption by presenting declarations of release for consumption in accordance with the provisions of the Code of Excise Duties, approved by Decree-Law No 73/2010 of 21 June 2010, as amended by Law No 55-A/2010 of 31 December 2010, … must contribute towards meeting the following biofuel incorporation targets expressed as percentages of energy content relative to the quantities of motor fuels which they have released for consumption, with the exception of liquefied petroleum gas (LPG) and natural gas:

15

The preamble to Decree-Law No 6/2012 states that ‘Decree-Law No 117/2010 …, which partially transposes [Directive 2009/28] and [Directive 2009/30] into national law, establishes the sustainability criteria for the production and use of biofuels and bioliquids, the mechanisms for promoting biofuels in land transport and sets the limits for the compulsory incorporation of biofuels’.

16

Vapo Atlantic is an undertaking which operates in the fuel market in Portugal.

17

Since it has the tax status of a registered consignee, it does not meet the statutory conditions for the physical incorporation of biofuels into the motor fuels which it releases for consumption in Portugal. Consequently, it purchases those fuels from a company established in Spain, which contain biofuel in proportions which comply with the provisions of Spanish legislation.

18

Vapo Atlantic did not submit to ENSE any evidence of the European Commission’s approval of the voluntary certification scheme operated by the company from which it purchases motor fuels in Spain.

19

In the second quarter of 2020, Vapo Atlantic released for consumption 7582 tonnes of motor fuel.

20

ENSE found that, contrary to its obligation under Decree-Law No 117/2010, Vapo Atlantic had no biofuel certificate, whereas it should have had at least 758 certificates in order to show that it complied with the obligation to incorporate 10% of biofuels into the motor fuels which it released for consumption in the second quarter of 2020.

21

Consequently, ENSE adopted a decision requiring Vapo Atlantic to pay EUR 908084 by way of financial compensation on the ground that it had not proved that biofuels had been incorporated into the motor fuels which it released for consumption during the second quarter of 2020, thereby infringing Article 11(1) of Decree-Law No 117/2010.

22

Vapo Atlantic challenged that decision before the Tribunal Administrativo e Fiscal de Braga (Administrative and Tax Court, Braga, Portugal), which is the referring court.

23

That court points out that the draft national law referred to in paragraph 21 of the present judgment does not appear to have been notified to the Commission prior to the publication and entry into force of that law.

24

The referring court has doubts, in essence, about the interpretation of the provisions of Directive 98/34, in order to determine whether that law constitutes a ‘technical regulation’ which should have been notified to the Commission.

25

In the first place, that court asks whether Article 11(1) of Decree-Law No 117/2010, which merely determines the percentages of biofuels to be incorporated into motor fuels released for consumption without determining any characteristic whatsoever of those biofuels, may be regarded as a ‘technical regulation’ within the meaning of Article 1(11) of Directive 98/34 and, more specifically, whether it falls within the concept of ‘other requirements’ within the meaning of Article 1(4) of that directive.

26

In the second place, the referring court asks whether Article 11(1) of Decree-Law No 117/2010 may fall within the exception provided for in Article 8(1) of that directive, in so far as that provision of national law ‘merely transposes the full text of [a] … European standard’. Article 7a(2) of Directive 98/70 imposes an obligation on Member States to require suppliers to reduce, as gradually as possible, the greenhouse gas emissions produced by up to 10%.

27

In the third place, that court asks whether Article 11(1) of Decree-Law No 117/2010 falls within the scope of the third indent of Article 10(1) of Directive 98/34, having regard to the second subparagraph of Article 4(1) of Directive 2009/30 and Article 4(1) of Directive 2015/1513. Those two provisions could be regarded as ‘safeguard clauses provided for in binding Community acts’ within the meaning of the third indent of Article 10(1) of Directive 98/34.

28

In the fourth place, the referring court asks, in the alternative, what consequences flow from the failure to fulfil the obligation to communicate the draft law, laid down in Article 8(1) of Directive 98/34. The referring court acknowledges that, in principle, failure to notify national provisions under that provision renders them unenforceable. However, it has doubts in that regard, since such an interpretation would lead to a generalised failure to comply with the obligation to incorporate biofuels into motor fuels released for consumption. That interpretation would undermine not only the national objective but also the European objective of reducing greenhouse gas emissions and promoting renewable energy.

29

In those circumstances, the Tribunal Administrativo e Fiscal de Braga (Administrative and Tax Court, Braga) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

30

ENSE claims that the request for a preliminary ruling is inadmissible, since the wording of the provisions, the interpretation of which is sought by the referring court, is clear and therefore no clarification is needed.

31

In that regard, it is settled case-law that, 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 EU law, the Court is in principle bound to give a ruling (judgment of 6 October 2021, Sumal, C‑882/19, EU:C:2021:800, paragraph 27 and the case-law cited).

32

In the present case, it is sufficient to note that, as is apparent from the request for a preliminary ruling, the questions referred have a direct connection with the dispute in the main proceedings and that they are relevant in order to enable the referring court to resolve it. Moreover, that request contains sufficient information for the Court to determine the implications of those questions and to provide a useful answer.

33

In any event, those circumstances in no way prevent a national court from referring questions for a preliminary ruling to this Court, the answer to which, in the submission of one of the parties to the main proceedings, leaves no scope for reasonable doubt. Accordingly, even if that were the case, the request for a preliminary ruling containing such questions does not thereby become inadmissible (judgment of 14 October 2021, Viesgo Infraestructuras Energéticas, C‑683/19, EU:C:2021:847, paragraph 26).

34

Accordingly, the request for a preliminary ruling is admissible.

35

As a preliminary point, it should be noted that, in the dispute in the main proceedings, Vapo Atlantic was required to pay financial compensation for failing to comply with Article 11(1) of Decree-Law No 117/2010, in that that company had not fulfilled its obligation to submit certificates proving the incorporation of biofuels into motor fuels which it released for consumption in the second quarter of 2020.

36

In that regard, although the referring court formally referred, in its first question, to Article 1(3) of Directive 98/34, it is apparent from the wording of that question that it asks whether the obligation imposed by the national legislation is covered by the concept of ‘other requirements’, within the meaning of Article 1(4) of that directive, and thus constitutes a ‘technical regulation’ within the meaning of Article 1(11) of that directive.

37

Therefore, it must be held that, by its first and fourth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 1(4) of Directive 98/34 must be interpreted as meaning that a national law which sets a target for the incorporation of 10% of biofuels into motor fuels released for consumption by an economic operator in a given year is covered by the concept of ‘other requirements’, within the meaning of Article 1(4) of that directive, and thus constitutes a ‘technical regulation’, within the meaning of Article 1(11) of that directive, which can be enforced against individuals only if its draft has been notified in accordance with Article 8(1) of that directive.

38

In the first place, it must be borne in mind that the concept of ‘other requirements’ is defined in Article 1(4) of Directive 98/34 as ‘a requirement, other than a technical specification, imposed on a product for the purpose of protecting, in particular, consumers or the environment, and which affects its life cycle after it has been placed on the market, such as conditions of use, recycling, reuse or disposal, where such conditions can significantly influence the composition or nature of the product or its marketing’.

39

In accordance with settled case-law, that category includes legislation which lays down a condition capable of significantly influencing the composition, nature or marketing of a product, those ‘other requirements’ covering the requirements arising from consideration of the life cycle of the product in question after it has been placed on the market and relating, in particular, to its use (judgment of 28 May 2020, ECO-WIND Construction, C‑727/17, EU:C:2020:393, paragraph 40 and the case-law cited).

40

In the present case, the referring court’s questions concern a national law which requires economic operators that release motor fuels for consumption, with the exception of LPG and natural gas, to contribute to compliance with the targets for the incorporation of biofuels in the annual quantities of motor fuel which they release for consumption, namely a target of 10% for 2020. Even though that law does not specify the type of motor fuel in question nor does it fix a percentage of biofuel to be physically incorporated into motor fuels, nor specify the type of biofuel to be incorporated, the requirement it lays down, adopted for environmental protection purposes, is aimed at the life cycle of motor fuels after they have been placed on the market and could significantly influence the marketing of those products, in that failure to comply with the obligation to incorporate biofuels laid down by that law may result in an obligation to pay financial compensation being imposed.

41

It follows that a national law which sets a target for the incorporation of 10% of biofuels into motor fuels released for consumption by an economic operator in respect of 2020 is covered by the concept of ‘other requirements’ within the meaning of Article 1(4) of Directive 98/34 and thus constitutes a ‘technical regulation’ within the meaning of Article 1(11) of that directive.

42

In the second place, it should be recalled that, in accordance with settled case-law, Directive 98/34 is designed to protect, by means of preventive monitoring, 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, to that effect, judgments of 30 April 1996, CIA Security International, C‑194/94, EU:C:1996:172, paragraph 40, and of 19 July 2012, Fortuna and Others, C‑213/11, C‑214/11 and C‑217/11, EU:C:2012:495, paragraph 26 and the case-law cited).

43

In that context, Article 8(1) of Directive 98/34 requires, in principle, Member States to communicate immediately to the Commission any draft technical regulation. In that regard, it follows from the case-law of the Court that breach of the obligation to notify provided for in Article 8(1) of that directive constitutes a substantial procedural defect such as to render the technical regulations concerned inapplicable, so that they are unenforceable against individuals (see, to that effect, judgment of 30 April 1996, CIA Security International, C‑194/94, EU:C:1996:172, paragraph 54).

44

In the light of the foregoing, the answer to the first and fourth questions is that Article 1(4) of Directive 98/34 must be interpreted as meaning that a national law which sets a target for the incorporation of 10% of biofuels into motor fuels released for consumption by an economic operator in a given year is covered by the concept of ‘other requirements’, within the meaning of Article 1(4) of Directive 98/34, and thus constitutes a ‘technical regulation’, within the meaning of Article 1(11) of that directive, which can be enforced against individuals only if its draft has been notified in accordance with Article 8(1) of that directive.

45

By its second question, the referring court asks, in essence, whether Article 8(1) of Directive 98/34 must be interpreted as meaning that a national law intended to transpose Article 7a(2) of Directive 98/70 in a manner consistent with the objective set out in Article 3(4) of Directive 2009/28 is capable of constituting a mere transposition of the full text of a European standard within the meaning of Article 8(1) of Directive 98/34 and, therefore, of not being subject to the obligation to notify laid down by that provision.

46

In that regard, in accordance with Article 1(6) of Directive 98/34, a ‘standard’ within the meaning of that directive is a technical specification approved by a recognised standardisation body with which compliance is not compulsory and which falls into the category of international standards, European standards or national standards. ‘European standard’ is defined by that provision as being the one adopted by a European standardisation body and made available to the public.

47

It thus follows from those definitions that the concept of ‘European standard’ understood in the context of technical regulations, and more specifically of Directive 98/34, has a scope limited to standards adopted by a European standardisation body.

48

It is not apparent either from Article 3(4) of Directive 2009/28 or from Article 7a(2) of Directive 98/70 that the EU legislature adopted, by means of those provisions, a ‘European standard’ within the meaning of Article 1(6) of Directive 98/34.

49

First, Article 3(4) of Directive 2009/28, read in the light of recitals 8 and 9 and Article 1 of that directive, merely sets mandatory targets for the share of energy from renewable sources in all forms of transport in 2020 to be at least 10% of final energy consumption in the transport sector in each Member State, while leaving the Member States a margin of discretion as to the measures they consider appropriate to achieve those targets.

50

Second, Article 7a(2) of Directive 98/70 gives concrete expression to the EU legislature’s intention to reduce life cycle greenhouse gas emissions per unit of energy from fuel and energy supplied by up to 10%. However, as is apparent from that provision, read in conjunction with recitals 8 and 9 of Directive 2009/30, the Member States retain a margin of discretion in arriving at that reduction, through the use of biofuels or alternative fuels or through the reduction of flaring operations.

51

It follows that neither Article 3(4) of Directive 2009/28 nor Article 7a(2) of Directive 98/70 imposes a ‘standard’ within the meaning of Article 1(6) of Directive 98/34.

52

In the light of the foregoing, the answer to the second question is that Article 8(1) of Directive 98/34 must be interpreted as meaning that a national law which is intended to transpose Article 7a(2) of Directive 98/70 in a manner consistent with the objective set out in Article 3(4) of Directive 2009/28 is not capable of constituting a mere transposition of the full text of a European standard for the purposes of Article 8(1) of Directive 98/34 and, therefore, of not being subject to the obligation to notify laid down by that provision.

53

As a preliminary point, it should be noted that the national law at issue in the main proceedings entered into force on 18 January 2012, whereas Directive 2015/1513, to which the referring court refers in the third question, entered into force, in accordance with Article 5 thereof, on 5 October 2015. In those circumstances, it is not necessary to take that directive into consideration in order to answer that question.

54

Therefore, it must be held that, by its third question, the referring court asks, in essence, whether the second subparagraph of Article 4(1) of Directive 2009/30 must be interpreted as meaning that that provision constitutes a safeguard clause provided for in a binding EU act, within the meaning of the third indent of Article 10(1) of Directive 98/34.

55

It should be noted that the first two subparagraphs of Article 4(1) of Directive 2009/30 merely lay down a period within which the Member States are to transpose the directive, that is to say, by 31 December 2010 at the latest, by means of laws, regulations or administrative provisions necessary for that purpose, while requesting them to communicate immediately to the Commission the text of those provisions. The third subparagraph of that provision provides that, when Member States adopt those provisions, they are to refer to Directive 2009/30.

56

There is nothing, however, in the wording of Article 4(1) of Directive 2009/30 to suggest that the EU legislature intended to introduce in that directive a safeguard clause, within the meaning of Article 114(10) TFEU, which the Member States could have used.

57

In that regard, the latter provision provides that harmonisation measures are, in appropriate cases, to include a safeguard clause authorising the Member States to take, for one or more of the non-economic reasons referred to in Article 36 TFEU, provisional measures subject to an EU control procedure. It follows that such a safeguard clause must be expressly provided for in the harmonising measure. Article 4(1) of Directive 2009/30 does not have those characteristics and cannot, therefore, constitute such a safeguard clause.

58

It follows from the foregoing that the answer to the third question is that the second subparagraph of Article 4(1) of Directive 2009/30 must be interpreted as meaning that that provision does not constitute a safeguard clause provided for in a binding EU act, within the meaning of the third indent of Article 10(1) of Directive 98/34.

59

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: