Energy from Renewable Sources

The main instrument for achieving the target of at least 20 per cent energy from renewable resources by 2020 is Directive 2009/28/EC.^{[1] [2] [3] [4]} This Directive, which repeals certain previous EU law acts with similar purposes, establishes a common framework for the promotion of energy from renewable sources.7¹ Apart from setting mandatory national targets for the overall share of energy from renewable sources and for the share of such energy in transport, which was discussed in a previous section, it lays down rules relating, inter alia, to statistical transfers between Member States, to joint projects between Member States and with third countries, and to guarantees of origin. It also establishes sustainability criteria for biofuels and bioliquids. (Art 1.)

The Directive thus comprises a number of rather diverse measures and mechanisms for the promotion of energy from renewable sources. Some of these are discussed here.

For the purpose of the Directive, ‘energy from renewable sources’ refers to energy from wind, solar, aerothermal, geothermal, hydrothermal and ocean energy, hydropower, biomass, landfill gas, sewage treatment plant gas, and biogases (Art 2).

The share of energy from renewable sources in its gross final consumption of energy which each Member State shall ensure by 2020 is set out in Annex I (part A). This Annex I (part B) also contains an indicative trajectory for the years 2011—18 which Member States should equal or exceed through the introduction of appropriate measures, such as support schemes/2 Each Member State is also required to adopt a national renewable energy action plan setting out its national targets for the share of energy from renewable sources consumed in transport, electricity, heating, and cooling in 2020 and adequate measures to be taken to achieve those national overall targets. An amendment in 2015 introduced a cap on the extent to which biofuels and bioliquids produced from cereal and other starch-rich crops, sugars and oil crops, and crops grown as main crops primarily for energy purposes on agricultural land can be relied on to meet these targets/³ (Arts 3—4.)

Calculation of the share of energy from renewable sources is complex, not least since it may require consideration of the effects of statistical transfers of specified amounts of energy from renewable sources between Member States as well as of joint projects regarding the production of electricity from such sources between Member States or between Member States and third countries (Arts 5—11).

The Directive recognises that a lack of transparency and coordination between different authorisation bodies hinders the deployment of energy from renewable sources. To address this problem Member States are required, inter alia, to ensure that any national rules concerning the authorisation, certification, and licensing procedures that apply to plants and distribution networks for the production of electricity, heating, or cooling from renewable energy sources are proportionate and necessary. This may require streamlining administrative and authorisation procedures. (Art 13.)

The Court of Justice has found a total ban on the construction of new wind turbines in areas forming part of the Natura 2000 network to be compatible with the objective of streamlining and reducing administrative barriers.^{[5] [6] [7]}

The Directive requires that a system of guarantees of origin of electricity, heating, and cooling produced from renewable energy sources be established so that it may be proven to final customers that a given share or quantity of energy was produced from such sources. To that end, Member States shall ensure that, provided that certain conditions are met, a guarantee of origin is issued in response to a request from a producer of electricity from renewable energy sources. They may also arrange for such guarantees to be issued to producers of heating and cooling from renewable energy sources. A guarantee of origin shall specify, inter alia, the energy source; the identity, location, type and capacity of the installation where the energy was produced; and a unique identification number. (Art 15.)

Member States must also ensure that transmission system operators and distribution system operators guarantee the transmission and distribution of electricity produced from renewable energy sources. Such energy shall be given either priority access or guaranteed access to the grid system (Art 16).

The sustainability criteria for biofuels and bioliquids (Art 17) are probably the part of the Directive that has attracted most attention and debate/5 The criteria aim to ensure that biofuels and bioliquids (in the following, ‘biofuels’) qualify for the incentives promoted by the Directive only when it can be guaranteed that they do not originate in biodiverse areas or when it can be demonstrated that the production of the raw material does not interfere with the protection of rare, threatened, or endangered ecosystems or species/⁶ A certain effect in terms of emissions savings must also be achieved.

For biofuels to count towards the fulfilment of national targets and renewable energy obligations set out in the Directive, and to be eligible for financial support for the consumption of biofuels, their use must, after an amendment in 2015, result in a greenhouse gas emission saving of at least 35 per cent until 31 December 2017 and at least 50 per cent from 1 January 2018.^{[8] [9]} For biofuels produced in installations starting operation after 5 October 2015, the saving must be at least 60 per cent.

The biofuels must not be made from raw material obtained from land with high biodiversity value. That entails that the land must not in or after January 2008 have been defined as forest and other wooded land of native species, where there is no clearly visible indication of human activity and the ecological processes are not significantly disturbed; have been designated for nature protection purposes or for the protection of rare, threatened, or endangered ecosystems or species recognised by international agreements; or had status as highly biodiverse grassland. However, this does not apply if evidence is provided that the production of the raw material did not interfere with those nature-protection purposes. Similar rules apply to raw material obtained from land with high carbon stock such as wetlands and continuously forested areas.

Every two years the Commission shall report to the EP and the Council on national measures taken to respect the sustainability criteria set out in the Directive as well as for soil, water, and air protection. It shall also report on the impact on social sustainability in the EU and in third countries of increased demand for biofuel and on the impact of EU biofuel policy on the availability of foodstuffs at affordable prices. (Art 17.)

There are also provisions on verification of compliance with the sustainability criteria. The Member States shall require economic operators to show that the sustainability criteria have been fulfilled by means of a mass balance system. The EU shall also endeavour to conclude bilateral or multilateral agreements with third countries containing provisions on sustainability criteria that correspond to those of the Directive. Where such agreements have been concluded, the Commission may decide that those agreements demonstrate that biofuels produced from raw materials cultivated in those countries comply with the criteria. The Commission may also decide that voluntary national or international schemes setting standards for the production of biomass demonstrate that consignments of biofuel comply with the sustainability criteria/⁸ (Art 18.)

The Commission shall monitor the origin of biofuels consumed in the EU and the impact of their production on land use in the EU and the main third countries of supply and report on these issues (Art 23).

Directive 2009/28/EC is based on two articles in the TFEU. The main legal base is the predecessor of Article 192, but the articles (Arts 17—19) dealing with sustainability criteria for biofuels instead have the previous article corresponding to what is now Article 114 TFEU as their legal base. This indicates that the Directive aims to harmonise the way in which Member States regulate trade in such fuels for sustainability purposes.

As noted previously, the European Council in 2014 agreed on an EU target of at least 27 per cent share of renewable energy consumed in the EU in 2030 that will be binding at EU level.^[10]

• [1] Directive 2009/28/EC of the European Parliament and of the Council on the promotion of theuse of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC [2009] OJ L 140/16.
• [2] The Directive has repealed Directive 2001/77/EC of the European Parliament and of the Councilon the promotion of electricity produced from renewable energy sources in the internal electricitymarket [2001] OJ L 283/33 and Directive 2003/30/EC of the European Parliament and of the Councilon the promotion of the use of biofuels or other renewable fuels for transport [2003] OJ L 123/42.
• [3] 72 As to what constitutes a ‘support scheme’ for this purpose see Case C-195/12 Industriedu bois de Vielsalm & Cie (IBV) ECLI:EU:C:2013:598, and Case C-573/12 Alands VindkraftECLI:EU:C:2014:2037. In the latter case the Court of Justice also made clear that a scheme whichprovides for the award of electricity certificates solely in respect of green electricity produced in the national territory of the Member State operating the scheme is not contrary to the Directive. Ibid, para 54.
• [4] Art 3 as amended by Directive (EU) 2015/1513 of the European Parliament and of the Councilamending Directive 98/70/EC relating to the quality of petrol and diesel fuels and amending Directive2009/28/EC on the promotion of the use of energy from renewable sources [2015] OJ L 239/1.
• [5] Case C-2/10 Azienda Agro-Zootecnica Franchini ECLI:EU:C:2011:502, para 63.
• [6] See eg J Lin ‘Governing Biofuels: A Principal-Agent Analysis of the European Union BiofuelsCertification Regime and the Clean Development Mechanism’ (2012) 24 Journal of EnvironmentalLaw 43—74; A Swinbank and C Daugbjerg ‘Improving EU Biofuels Policy: Greenhouse Gas Emissions,Policy Efficiency, and WTO Compatibility’ (2013) 47Journal ofWorld Trade 813—34.
• [7] 76 Preambular para 69.
• [8] Regarding the calculation of the greenhouse gas emission saving see Art 19 and Annex V.
• [9] See, eg, Commission Implementing Decision 2011/437/EU on the recognition of the ‘BiomassBiofuels Sustainability voluntary scheme’ for demonstrating compliance with the sustainability criteriaunder Directives 2009/28/EC and 2009/30/EC of the European Parliament and of the Council [2011]OJ L 190/77.
• [10] European Council, Conclusions on 2030 Climate and Energy Policy Framework (n 23) 5.