Use of the preliminary reference procedure

Interpretative preliminary question; mandatory preliminary reference

Supremo Tribunal Administrativo

Supreme Administrative Court

02739/17.2BEBRG-A

26/05/2022

N/A

Case C-413/22 (pending)

N/A

Use of the preliminary reference procedure; interpretive preliminary question; mandatory preliminary reference

The legal issue is whether there can be a preliminary ruling on the compatibility with EU law of certain transpositions of directives or of certain national legislation.

NO

N/A

Decree-Law n. 117/2010, of 25th October; Decree-Law n. 6/2012, of 17th January; Decree-Law n. 69/2016, of 3rd November; Portaria n. 8/2012, of 4th January

A company has challenged the administrative penalty imposed by the National Entity for the Energy Sector for payment of €5,702,000.00 in compensation for alleged non-compliance with biofuel incorporation obligations for 2016. It won in the Administrative Court of First Instance, which fully quashed the administrative penalty. The National Entity for the Energy Sector appealed to the Administrative Central Court of the North, which revoked the Administrative Court of First Instance’s judgment and fully reinstated the penalty; the Administrative Central Court of the North simultaneously rejecting a request for a preliminary ruling from the CJEU.

The Supreme Administrative Court accepted the appeal taking into account that there were several diverging interpretations in different administrative lower and appeal courts. Regarding the norms to be applied to the dispute, the CJEU had given some guidance regarding its interpretation of these norms in Cases C-549/15, E.ON Biofor Sverige, ECLI:EU:C:2017:490, and C-242/17, L.E.G.O., ECLI:EU:C:2018:804, but doubts subsisted. In a similar case, a Portuguese Administrative Court of First Instance court had already submitted a request for preliminary ruling (the Portuguese Case reference is 860/21.1BEBRG and the CJEU reference is C-604/21, which, after being decided, has the following identifier: Case C-C-604/21, Vapo Atlantic SA ECLI:EU:C:2023:175). It had rejected posing other questions considering that «the CJEU has no jurisdiction to rule on the conformity of Portuguese legislation or administrative practice with the Directives. As is well known, the CJEU only rules on the interpretation of European provisions or on the validity of acts of European Union law». However, the Supreme Administrative Court stated that one such understanding was not correct and that «there is nothing to prevent a preliminary ruling on the compatibility with European Union law of certain transpositions of European directives or of certain national legislation, since it is always a question, after all, of interpreting European Union law and establishing the limits of its compatibility». Taking this into account, the Supreme Administrative Court decided to submit an interpretive preliminary ruling to the CJEU with additional questions regarding the interpretation of articles 3(4) and 18(3) of Directive 2009/28 and of article 34 TFEU, considering, in addition, it was a mandatory preliminary ruling.

N/A

N/A

N/A

Citation of other cases of national administrative courts.

Preliminary reference.
Citation of other cases of the CJEU.

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

Tiago Fidalgo de Freitas, Lisbon Public Law Research Centre