Key facts of the case:
The claimant is an electricity enterprise and is connected to the distribution network of the defendant. There are price-laws on delivery of electric energy, here the SNT-VO 2010 – Directive of the Energy Control Commission on prices – is relevant. This foresees compulsory prices, also for network loss charge (Netzverlustentgelt). The defendant charged such loss charges to the claimant on a monthly basis. The claimant paid those charges for January/February 2011, but under the reservation of recovery of charges. In this procedure the claimant asks for recovery of those charges on 7 June 2011. Prior to this procedure the claimant initiated an extrajudicial settlement procedure, this claim was rejected by the regulation authority. In 2011 the Constitutional Court had lifted the SNT-VO 2010 together with the SNT-VO 2006 as being illegal. The claimant stated, that when interpreting the electricity economy and organisational act (Elektrizitätswirtschafts- und Organisationsgesetz, 1998, ElWOG 1998) and the SNT-VO 2010, an electricity enterprise is not to be seen as a “remover” (Entnehmer) of electricity produced in pump storage (Pumpstrom). Therefore there is no fee-obligation (Entgeltverpflichtung). The claimant asked for return of the payments for January/February 2011. Furthermore the claimant stated, that because of the EU Right to an effective remedy and to a fair trial, in the case of repeal of a legal norm each person has to be allowed to refer to this illegality, who filed a procedure before the lifting of the provision. The defendant stated that removers of electricity in pump storages are also to be seen as removers according to the ElWOG 1998. An illegality of the norms of the SNT-VO cannot be claimed, and also the claimant could not relate to the decision by the Constitutional Court, as this proceeding is no concerned case (Anlassfall). The first instance rejected the claim, as the claimant is to be seen as a remover according to ElWOG 1998, and it cannot relate to the Constitutional Court decision, for cases having taken place before the Constitutional Court ruling, the SNT-VO still applies, as the constitutional court did not mention the proceeding in its ruling as a concerned case. The doubts because of EU provisions raised by the claimant regarding the Right to an effective remedy and to a fair trial are not justified, as this jurispdrudence by the Court of the European Union only applies for EU legal acts. The second instance approved this decision with similar reasoning. Revision to the supreme court is allowed, as there is no jurisprudence regarding the possible preference of the EU Right to an effective remedy and to a fair trial in relation to the constitutional norm of Art. 139 Constitutional Act (Bundes-Verfassungsgesetz, B-VG). The Supreme Court in the end rejected the claim of the claimant.
She [the claimant] refers to the Right to an effective remedy and to a fair trial according to Art. 19 (1) TEU and Art. 47 (1) Chater. The result is that the “Anlassfallwirkung” of the Constitutional Court ruling also has to apply to this case (page 6 et seq. of the decision). The claimant raises the question, whether the scope of application of Union law, more concretely the TEU and the Charter is open. She refers to the fact, that the relevant national rules are determined through the Directives 2003/54/EC and 2009/72/EC. Therefore she holds the opinion that the procedure falls within the scope of union law. [...} The Charter, through the Charter of Lissabon being primary law, the principle of effective remedy has a detailed positivity. The question of the scope of application of the CFR is raised. According to Art. 51 (1) the charter applies for all institutions and bodies of the Union with due regard for the principle of subsidiarity and for the Member States only when implementing (better: applying) Union law. The application of the CFR is therefore then open, if a measure falls within the scope of the TFEU, one party can claim freedom of movement or any other basic guarantee, or when there is a secondary law rule on a topic. Without doubt the conten of a Directive falls within the scope of the CFR, also if the directive allows for discretion by the member states (Court of the EU C-411/10). Ion the scope of application of the CFR the examination of fundamental rights has to exclusively be done according to EU fundamental rights (Court of the EU, C- 256/11). [...] The scope of application of the CFR is open in this case. Therefore the question by the claimant is to be discussed, whether the right to an effective remedy leads to the deduction of a prolongation of the “Anlassfallswirkung” according to Art. 139 (6) B-VG to disputes, where before the ruling on the repeal of the norm in question (here the Constitutional Court decision) a claim has been brought to court, or at least another corresponding extrajudicial remedy has been raised. [...] The right to an effective remedy guarantees, that a concerned person has an effectice remedy at his disposal. Such a remedy has to be available in the light of the decisions of the Court of the Euroepan Union for all rights and freedoms guaranteed at all EU levels. Prerequisite for using Ar.t 47 (1) CFR is, that link to Union law is given. The scope is tehrefor only for the violation of (subjective) rights or entitlementsor of freedoms guaranteed by Union law. These rights have to result out of a union legal act or a national legal act, implementing (ion law. Art. 47 (1) also applies for legal acts of the member states, insofar these laws were made while implementing Union law. Claims, based on legal acts which are purely national law, do not fall within the scope of Art. 47 (1) CFR. Art. 47 is therefore accessory to claiming the violation of a material law, resulting from Union law. The violation therefore has to be claimed as a material complaint (Rüge). This means, that the claimant has to prove conclusive evidence, that rights and/or freedoms guaranteed by Union law were violated. [...] Her [i.e. the claimant] Union law considerations are only linked to the right to an effective remedy. Therefore she has only stated that the rules on system use prices in electricity law are within an area determined by EU law. In the appeal and the revision the claimaint repeated this statement. A conclusive statement why and how she was violated in a (subjective) right laid down in the Directive 2003/54/EC was not brought forward by the claimant. She did not state any “Richtlinienwidrigkeit” and did not refer that the Directive is not valid in the menaing of Art.263 together with Art. 277 TFEU. All together she rose a material complaint linked to a right guaranteed by EU law, which would have been necessary for the protection scope of Art 47 CFR. [...] The fundamental right to an effective remedy according to Art. 47 (1) CFR guarantees, that a claimant has to have an effective remedy in place. In the scope falls the violation of (subjective) rights or freedoms, guarantee by Union law. Art 47 CFR is accessory to the claim of a corresponding material rule. The violation has to be raised in form of a material complaint. Such a complaint can relate to a material union law illegality or regarding invalidity of the union legal act. The proposal of the claimant regarding a preliminary ruling was not taken up, as there are no doubts regarding the scope of Art. 47 (1) CFR.