Article 15 - Freedom to choose an occupation and right to engage in work
Article 17 - Right to property
Article 52 - Scope and interpretation
Key facts of the case:
Failure of a Member State to fulfil obligations – Internal markets for electricity and natural gas – Directive 2009/72/EC – Article 2(21) – Article 19(3), (5) and (8) – Article 37(1)(a) and (6)(a) and (b) – Directive 2009/73/EC – Article 2(20) – Article 19(3), (5) and (8) – Article 41(1)(a) and (6)(a) and (b) – Concept of a ‘vertically integrated undertaking’ – Effective unbundling of networks from the activities of production and supply of electricity and natural gas – Independent transmission operator – Independence of the staff and the management of the transmission system operator – Transitional periods – Shares held in the capital of the vertically integrated undertaking – National regulatory authorities – Independence – Exclusive powers – Article 45 TFEU – Freedom of movement for workers – Charter of Fundamental Rights of the European Union – Article 15 – Right to engage in work and to pursue an occupation – Article 17 – Right to property – Article 52(1) – Restrictions – Principle of democracy.
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Outcome of the case:
On those grounds, the Court (Fourth Chamber):
1. Declares that, by failing to transpose correctly:
the Federal Republic of Germany has failed to fulfil its obligations under those directives;
2. Orders the Federal Republic of Germany to pay the costs;
3. Orders the Kingdom of Sweden to bear its own costs.
28) In addition, since the activities that third-country undertakings carry on outside the European Union do not have any effect on the internal market, there is no need to impose on those undertakings restrictions on the free movement of capital within the meaning of Article 63 TFEU, or to restrict the freedom of those undertakings and those who work for them to conduct a business, enshrined in Article 15(1) and Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and the right to property under Article 17(1) of the Charter, which are recognised in Directives 2009/72 and 2009/73, for the purposes of achieving the goal of ensuring the efficient and non-discriminatory operation of transmission systems within the European Union.
51) The restrictions that the rules on transitional periods impose on the freedom of movement for workers, enshrined in Article 45 TFEU, where the relevant parts of undertakings of the VIU are located in several Member States, and the fundamental right to pursue a freely chosen occupation, enshrined in Article 15(1) of the Charter, where the parts are confined to a single Member State, would, moreover, be justified only if Article 19(3) and (8) of Directives 2009/72 and 2009/73 were to apply exclusively to transfers of staff.
59) Furthermore, although the interpretation of the rules on transitional periods in paragraph 56 above may, as the Federal Republic of Germany claims, give rise to a restriction on the freedom of movement for workers enshrined in Article 45 TFEU and to a restriction on the exercise of the fundamental right to pursue a freely chosen occupation under Article 15(1) of the Charter, it should be noted that those freedoms are not absolute and may be restricted under certain conditions.
63) Furthermore, as is apparent from Article 52(1) of the Charter, restrictions may be imposed on the exercise of the right to pursue a freely chosen profession, provided that those restrictions in fact correspond to objectives of general interest and do not constitute, in relation to those objectives, a disproportionate and intolerable interference, impairing the very substance of the right guaranteed (see, to that effect, judgment of 6 September 2012, Deutsches Weintor, C‑544/10, EU:C:2012:526, paragraph 54 and the case-law cited).
66) Moreover, those rules do not go beyond what is necessary to attain the objective pursued. The restrictions on the freedom of movement for workers guaranteed by Article 45 TFEU and the right to pursue a freely chosen profession guaranteed in Article 15(1) of the Charter, which result from all the specific rules relating to that operator, including rules on transitional periods, and function to ensure the operator’s independence, are limited in time such that they only produce effects for a clearly circumscribed period.
78) In the present case, although the German legislation at issue requires the disposal of holdings in the capital of the VIU acquired up to 3 March 2012, it restricts that obligation solely to the management of the independent transmission system operator. Since the Federal Republic of Germany claims that that limitation ensures protection of the employees’ right to property as regards their shareholding in the VIU under the GG, it must be borne in mind that their right to property is also protected by Article 17(1) of the Charter.
79) Nevertheless, the interpretation of Article 19(5) of Directive 2009/72 and of Directive 2009/73 set out in paragraphs 76 and 77 above is consistent with the right to property as enshrined in Article 17(1) of the Charter. The right to property is not absolute and its exercise may be subject to limitations justified by objectives of general interest pursued by the European Union, provided that those restrictions genuinely meet objectives of general interest under Article 52(1) of the Charter and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the right guaranteed (see, to that effect, judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P, EU:C:2016:701, paragraphs 69 and 70 and the case-law cited).
83) Therefore, in the light of the public-interest objective referred to in paragraphs 54 and 80 above, the obligation at issue does not constitute an excessive and intolerable interference capable of impairing the very substance of the right to property of those employees, guaranteed by Article 17(1) of the Charter.
128) Furthermore, Article 37(17) of Directive 2009/72 and Article 41(17) of Directive 2009/73 require Member States to establish appropriate mechanisms at the national level under which a party affected by a decision of an NRA can bring proceedings before a body independent of the parties involved and of any government. Such a requirement is a corollary of the principle of effective judicial protection, which is a general principle of European Union law and one which is enshrined in Article 47 of the Charter (judgment of 16 July 2020, Commission v Hungary (Charges for access to electricity and natural gas transmission networks), C‑771/18, EU:C:2020:584, paragraph 61 and the case-law cited).
