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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:
ECLI:EU:C:2019:973

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.