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CJEU - C-121/15 / Judgment

Association nationale des opérateurs détaillants en énergie (ANODE) v. Premier ministre and Others
Policy area
Energy
Deciding body type
Court of Justice of the European Union
Deciding body
Court (Fifth Chamber)
Type
Decision
Decision date
07/09/2016
ECLI (European case law identifier)
ECLI:EU:C:2016:637

Cairt um Chearta Bunúsacha an Aontais Eorpaigh

Title IV: Solidarity

Article 36 - Access to services of general economic interest

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  • CJEU - C-121/15 / Judgment

    Key facts of the case:

    Reference for a preliminary ruling — Approximation of laws — Directive 2009/73/EC — Energy — Gas sector — Fixing of prices for supplying natural gas to final customers — Regulated tariffs — Obstacle — Compatibility — Criteria of assessment — Objectives of security of supply and territorial cohesion

    Results (sanctions) and key consequences of the case:

    ...the Court (Fifth Chamber) hereby rules:

    1. Article 3(1) of Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC must be interpreted as meaning that intervention by a Member State consisting in requiring certain suppliers, including the incumbent supplier, to offer to supply natural gas to final consumers at regulated tariffs constitutes by its very nature an obstacle to the achievement of a competitive market in natural gas as provided for in that provision, and that obstacle exists even though the intervention does not preclude competing offers from being made at lower prices than those tariffs by any supplier in the market.
    2. Article 3(2) of Directive 2009/73, read in the light of Articles 14 TFEU and 106 TFEU and Protocol (No 26) on services of general interest, annexed to the EU Treaty, as amended by the Treaty of Lisbon, and the FEU Treaty, must be interpreted as allowing the Member States to assess whether, in the general economic interest, public service obligations relating to the price of supply of natural gas should be imposed on undertakings operating in the gas sector, in order in particular to ensure security of supply and territorial cohesion, provided that, first, all the conditions set out in Article 3(2) of the directive are satisfied, specifically the non-discriminatory nature of such obligations, and, secondly, that the imposition of those obligations complies with the principle of proportionality.

      Article 3(2) of Directive 2009/73 must be interpreted as not precluding a method of determination of prices based on taking costs into consideration, provided that the application of the method does not have the consequence that the State intervention goes beyond what is necessary for achieving the objectives of general economic interest pursued.

  • Paragraphs referring to EU Charter
    1. As the Advocate General observes in point 44 of his Opinion, the interpretation of the condition relating to general economic interest must be set in the new context following from the entry into force of the Treaty of Lisbon, which includes, as well as Article 106 TFEU, Article 14 TFEU, Protocol (No 26) on services of general interest, annexed to the EU Treaty, as amended by the Treaty of Lisbon, and the FEU Treaty (‘Protocol No 26’), and the Charter of Fundamental Rights of the European Union, which has acquired the same legal value as the Treaties, in particular Article 36 of the Charter on access to services of general economic interest.
    2. In particular, Protocol No 26 expressly recognises the essential role and the wide discretion of the authorities of the Member States in providing, commissioning and organising services of general economic interest.
    1. However, it should be noted, first, as the Advocate General states in points 52 to 54 of his Opinion, that Article 3(2) of Directive 2009/73 contains a non-exhaustive list of things which may the subject of public service obligations, and that the Member States remain free, in compliance with EU law, to define which objectives of general economic interest they wish to pursue by imposing public service obligations. Those obligations must, however, always be aimed at attaining one or more objectives of general economic interest.