Key facts of the case:
(Request for a preliminary ruling from the Kúria, Hungary)
(Internal market in natural gas –Directive 2003/55 — Directive 2009/73 — Scope ratione temporis — Locus standi of a legal person, a natural gas distribution company, to contest a decision of the national regulatory authority — National condition for locus standi based exclusively on a ‘legal interest’ — Fundamental right to effective legal protection — Article 47 of the Charter of Fundamental Rights of the European Union).
42. Having reached this stage, I believe that, in the instant case, Article 5(5) of Regulation No 1775/2005 grants the applicant in the main proceedings a right to ensure that decisions relating to congestion management are adopted in accordance with criteria of transparency and non-discrimination. Therefore, that being a right conferred directly by EU law on, in this case, E.ON, Hungary must guarantee that right by means of national judicial procedures, respecting, of course, the procedural autonomy of the national courts but also respecting the right to an effective remedy, as required by Article 47 of the Charter of Fundamental Rights of the European Union. That conclusion is supported by extensive, settled case-law of the Court.
43. It is well known that Article 47, as an extension of previous case-law based on the principles of effectiveness and equivalence and on the general principle of effective judicial protection, takes effect in relation to any national procedural rules aimed at guaranteeing the enforceability of the rights conferred by Union law. (15) It is clear that that includes national rules on locus standi, inasmuch as these act as important filters of access to justice in the Member States.
44. In fact, the conditions for access to justice in the Member States are particularly relevant for the purposes of EU law. Proof of that is Article 19(1) TEU, which requires Member States to provide remedies ‘sufficient to ensure effective legal protection in the fields covered by EU law’.
45. It is therefore from the perspective of effective judicial protection that I must examine whether the national criteria for locus standi called into question by the referring court are compatible with EU law. (16)
46. As is well known, when doubts are raised as to whether a national procedural provision is compatible with the principles referred to, the fundamental right to effective legal protection calls for an analysis by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In that context, it is necessary, according to the case-law, to take into consideration, where relevant, the principles lying at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings. (17)
47. The application of the fundamental right to effective judicial protection to the national conditions for locus standi has given rise to various judgments of the Court of interest for the purposes of the present preliminary-ruling proceedings.
48. In 2005, in Streekgewest, (18) the Court found that it was incompatible with Community law for a national decision to rule inadmissible an action brought by a consortium of municipalities against the decision of another administrative authority not to implement a prohibition of aid declared to be unlawful. The Court held that ‘[a]n individual may have an interest in relying before the national court on the direct effect of the prohibition on implementation referred to in the last sentence of Article 93(3) [now Article 108(3) TFEU]’. (19) The national decision ruling the action inadmissible required the applicant to have been affected by the distortion of competition derived from the aid measure. However, the Court disagreed and held that ‘[t]he only fact to be taken into consideration is that the individual is subject to a tax which is an integral part of a measure implemented in breach of the prohibition referred to in that provision [last sentence of Article 93(3), now Article 108(3) TFEU]’. (20)
49. In Club Hotel Loutraki and Others, (21) in which judgment was given in 2010 after the entry into force of the Charter of Fundamental Rights of the European Union, the Court again criticised a Member State for having limited excessively the criteria for locus standi in a case concerning the award of administrative contracts. The tenderer bringing the action was precluded from making a claim before the Greek courts for compensation for damage suffered by reason of a breach of EU law by an administrative act liable to have influenced the outcome of the procedure for the award of the contract. In those circumstances, the Court held that ‘[s]uch a tenderer is thus deprived of effective judicial protection of the rights in that area of the law which it has under EU law.’ (22)
50. It follows from the foregoing that a mere expectation may be sufficient for a finding that an administrative action is inadmissible before the national courts. That outcome would not be contrary to the fundamental right to effective legal protection. However, where the interest is sufficiently established and is reflected in economic consequences, the combination of a right conferred by EU law and the economic loss suffered requires the Member States to guarantee access to justice.
51. Turning now to the case referred by the referring court, I consider it clear from the case-file that the case-law of the Hungarian courts requires a ‘legal interest’ as a condition for locus standi in administrative proceedings. That interest may be contrasted with mere economic loss, in that the former guarantees access to proceedings but the latter does not. It follows from the order for reference that E.ON has not entered into a specific legal relationship with either the network manager or the regulatory authority, at least in relation to the specific matter relating to congestion management, which would be sufficient to categorise the appellant’s interest as ‘legal’.
52. That is the approach adopted by various Member States, a feature of whose administrative justice systems is a certain strictness in the conditions for locus standi. (23) That is the case of the Republic of Poland, which warrants its participation in these proceedings.
53. There is no doubt that those systems of administrative justice were adopted in accordance with the principle of the procedural autonomy of the Member States, without EU law raising any objection to their operation from a general perspective. (24) It is legitimate for the Member States to ensure judicial review of the actions of the administrative authorities for those individuals and groups directly affected by certain public decisions, while other Member States may opt for more open systems. In specific cases, as may occur in the context of environmental law, EU law may require Member States to make certain alterations but, as a whole, the Union legal system co-exists peacefully with different national systems of administrative justice.
54. In the present case, I believe that E.ON could not exercise a right under Directive 2003/55 for, although the directive was applicable ratione temporis, by reason of its subject-matter it does not contain provisions that might resolve the specific case referred by the Kúria.
55. However, as I have stated above, E.ON has a right under Article 5(5) of Regulation No 1775/2005. That provision guarantees all operators the right to have decisions on congestion management adopted in accordance with the principles of non-discrimination and transparency. It is a decision of precisely that kind that is contested by E.ON, for it concerns criteria relating to the spare capacity available for the gas year. Accordingly, I believe that E.ON, in addition to having a right granted by Regulation No 1775/2005, had clear financial interests at stake. The combination of those two factors leads me to conclude that, when viewed in the light of the right to effective legal protection, the decision denying that that E.ON lacked locus standi owing to the want of a ‘legal interest’ is difficult to reconcile with that right.
56. It is not the Court’s task to give a ruling on the validity of a general national criterion for locus standi or to deprive the national court of its function as guarantor and interpreter of national law. It is for the Kúria to find the interpretation of national law that enables that law to be reconciled with EU law. The Court assists the referring court solely with the task of interpreting provisions of EU law.
57. Therefore, and in conclusion, I consider that Article 5(5) of Regulation No 1775/2005, in conjunction with Article 47 of the Charter, must be interpreted as precluding a criterion for locus standi of the kind applied in the present case, based on the existence of a ‘legal interest’, which excludes access to administrative justice for a natural gas operator seeking to contest a decision of a national regulatory authority.