Judgment of the Court (Third Chamber) of 9 March 2023 (request for a preliminary ruling from the Tribunal Administrativo e Fiscal de Braga — Portugal) — Vapo Atlantic SA v Entidade Nacional para o Setor Energético E.P.E. (ENSE)

(Case C-604/21, (1) Vapo Atlantic)

(Reference for a preliminary ruling - Information procedure in the field of technical standards and regulations and of rules on Information Society services - Directive 98/34/EC - Article 1(4) - Concept of ‘other requirements’ - Article 1(11) - Concept of ‘technical regulation’ - Article 8(1) - Obligation on the Member States to notify the European Commission of any draft technical regulation - National provision providing for the incorporation of a certain percentage of biofuels into motor fuels - Third indent of Article 10(1) - Concept of ‘safeguard clause provided for in a binding EU act’ - Second subparagraph of Article 4(1) of Directive 2009/30/EC not included)

(2023/C 155/19)

Language of the case: Portuguese

Referring court

Tribunal Administrativo e Fiscal de Braga

Parties to the main proceedings

Applicant: Vapo Atlantic SA

Defendant: Entidade Nacional para o Setor Energético E.P.E. (ENSE)

intervening parties: Fundo Ambiental, Fundo de Eficiência Energética (FEE)

Operative part of the judgment

Article 1(4) 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, as amended by Council Directive 2006/96/EC of 20 November 2006,

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, as amended, and thus constitutes a ‘technical regulation’ within the meaning of Article 1(11) of Directive 98/34, as amended, which can be enforced against individuals only if its draft has been notified in accordance with Article 8(1) of Directive 98/34, as amended.

Article 8(1) of Directive 98/34, as amended by Directive 2006/96,

must be interpreted as meaning that a national law which is intended to transpose 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, as amended by Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009, in a manner consistent with the objective set out in 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, 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, as amended, and, therefore, of not being subject to the obligation to notify laid down by that provision.

3.	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, as amended by Directive 2006/96.

(1) OJ C 11, 10.1.2022.