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CJEU Case C-454/18 / Opinion

Baltic Cable AB v Energimarknadsinspektionen.
Policy area
Energy
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Type
Opinion
Decision date
14/11/2019
ECLI (European case law identifier)
ECLI:EU:C:2019:973

Charta základných práv Európskej únie

Title II: Freedoms

Article 17 - Right to property

Title VII: General provisions

Article 52 - Scope and interpretation

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  • CJEU Case C-454/18 / Opinion

    Key facts of the case:

    Reference for a preliminary ruling — Internal market for electricity — Directive 2009/72/EC — Transmission of electricity — Concept of ‘transmission system operator’ — Regulation (EC) No 714/2009 — Interconnector — Transmission line connecting the national transmission systems of the Member States — Article 16(6) — Scope — Use of revenues resulting from the allocation of interconnection capacity — Undertaking which merely operates a cross-border high-voltage power line connecting two national transmission networks.

    Outcome of the case:

    In the light of the foregoing, I propose that the Court give the following reply to the questions referred by the Förvaltningsrätten i Linköping (Administrative Court, Linköping, Sweden):

    1. Article 16(6) of Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003 applies in all cases where a person obtains revenues resulting from the allocation of interconnection, irrespective of whether that person is a transmission system operator within the meaning of Article 2(4) of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC.
    2. Points (a) and (b) of the first subparagraph of Article 16(6) of Regulation No 714/2009 must be interpreted as meaning that the revenues resulting from the allocation of interconnection may be used to cover the costs incurred for the operation and maintenance of an interconnector and to make a reasonable profit, subject to approval by the regulatory authorities of the Member States concerned that shall verify whether the amount of that profit is not such as to jeopardise the operation and maintenance of the interconnector or investments in new interconnection capacities. However, where a regulatory framework is in place which provides for a charge that covers the costs of operation and maintenance of interconnectors, points (a) and (b) of the first subparagraph of Article 16(6) of Regulation No 714/2009 must be interpreted as meaning that an undertaking which merely operates an interconnector should use the revenues resulting from the allocation of interconnection in priority for purposes other than operating and maintaining the interconnector, for instance to increase the capacity of an existing interconnector or to invest in a new interconnector.
    3. Consideration of the fifth question referred for a preliminary ruling has disclosed no factor such as to affect the validity of Article 16(6) of Regulation No 714/2009.
  • Paragraphs referring to EU Charter

    95) Second, I consider that Article 16(6) of Regulation No 714/2009 is consistent with the right to property, as enshrined in Article 17(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

    96) I should note that the right to property guaranteed by Article 17(1) of the Charter is not absolute. As is apparent from Article 52(1) of the Charter, limitations may be imposed on the exercise of the rights recognised by the Charter, as long as the limitations are provided for by law, respect the essence of those rights and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights or freedoms of others. ( 49 )

    97) The restriction on the use of the revenues resulting from the allocation of interconnection must be regarded as provided for by law within the meaning of Article 52(1) of the Charter, since it stems from Article 16(6) of Regulation No 714/2009. ( 50 ) Moreover, as the Council submits, that provision does not preclude recovery of the costs incurred for the operation and maintenance of an interconnector. It does not preclude making a reasonable profit. Therefore, it respects the essence of the right to property. Furthermore, it follows from points 93 and 94 above that Article 16(6) of Regulation No 714/2009 pursues an objective of general interest, namely the development of cross-border exchanges in electricity, and that it is necessary.