CJEU - C 195/12 / Opinion
Key facts of the case:

For the first time the Court is called upon to interpret 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. (2)

This request for a preliminary ruling was made in the context of a dispute between Industrie du bois de Vielsalm & Cie (IBV) SA (3) and the Walloon Region.

IBV’s main business consists in a sawmill operation. It utilises the wood waste resulting from that activity in order to create its own supply of energy using its cogeneration plant (simultaneous generation in one process of thermal energy and electrical and/or mechanical energy). In its implementation of Directive 2004/8, the Kingdom of Belgium opted for the mechanism of green certificates as a cogeneration support scheme. These certificates are granted to producers of ‘green’ electricity in accordance with allocation rules.

In the present case, the Walloon Region refused to grant IBV the additional support of double green certificates, which it reserves to certain plants, on the ground that it failed to fulfil the conditions for the grant of such support, in particular, in so far as concerns the subject‑matter of the present dispute, because such support is available only for plants which use biomass other than that derived from wood and wood waste.

It was in that context that the Cour constitutionnelle (Belgium) referred two questions to the Court of Justice for a preliminary ruling. It asks, in substance, whether Article 7 of Directive 2004/8 on support schemes, read together, if appropriate, with Articles 2 and 4 of Directive 2001/77/EC (4) and Article 22 of Directive 2009/28/EC, (5) is to be interpreted, in the light of the general principle of equal treatment, of Article 6 TEU and of Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’), first, as applying only to high‑efficiency cogeneration plants and, secondly, as precluding – or otherwise – a regional support measure, such as that at issue in the main proceedings, which excludes from the benefit of double green certificates plants which use biomass derived from wood and/or wood waste. The referring court also asks the Court of Justice whether the answer to that second question would differ according to whether the plant used only wood or, on the other hand, only wood waste.

In this Opinion I shall submit that Article 7 of Directive 2004/8 must be interpreted as applying to all cogeneration plants and not solely to high-efficiency cogeneration plants. I shall then state why, in my view, in the light of the principle of equal treatment, that provision does not preclude a regional support measure such as that at issue in the main proceedings which excludes from the benefit of double green certificates plants which use biomass derived from wood, leaving it to the national court to decide, on the basis of the information available to it, whether the measure is appropriate to achieving the objective of preserving wood resources and safeguarding the wood industry. I shall, however, set out the reasons for which, in my view, Article 7 does preclude such a measure with regard to plants using biomass derived from wood waste.

Results (sanctions) and key consequences of the case:

In the light of all the foregoing, I propose that the Court answer the Cour constitutionnelle as follows:

Article 7 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, read in the light of the principle of equal treatment, must be interpreted as:

applying to all cogeneration plants and not only to high-efficiency cogeneration plants as defined in Annex III to Directive 2004/8;

not precluding a regional support measure, such as that at issue in the main proceedings, which excludes from the benefit of double green certificates plants using biomass derived from wood, subject to the national court’s determination, on the basis of the information available to it, of whether the measure is appropriate to attaining the objective of preserving wood resources and safeguarding the wood industry. It does, on the other hand, preclude such a measure with respect to plants using biomass derived from wood waste.
Paragraphs referring to EU Charter

6, 61-96