Article 36 - Access to services of general economic interest
Article 38 - Consumer protection
Key facts of the case:
Reference for a preliminary ruling — Common rules for the internal market in natural gas — Directive 2009/73/EC — Article 3(1) to (3) and Article 41(16) — Public service obligations — Natural gas storage obligations for the purposes of ensuring the security and regularity of supply — National legislation providing that the financial burden of the public service obligations imposed on the natural gas undertakings is to be passed on to their customers — Conditions — Adoption of a legal act by a national regulatory authority imposing a public service obligation — Procedure — Articles 36 and 38 of the Charter of Fundamental Rights of the European Union.
Outcome of the case:
On those grounds, the Court (Tenth Chamber) hereby rules:
1) This request for a preliminary ruling concerns the interpretation of Articles 36 and 38 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of Article 3 of Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (OJ 2009 L 211, p. 94).
3) Article 36 of the Charter, under the heading ‘Access to services of general economic interest’, provides:
‘The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaties, in order to promote the social and territorial cohesion of the Union.’
4) Under Article 38 of the Charter, under the heading ‘Consumer Protection’:
‘Union policies shall ensure a high level of consumer protection.’
41) In those circumstances, the Varhoven administrativen sad (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is a national measure such as the one at issue in the main proceedings, provided for in Article 35 of the [Energy Law] and set out in more detail in Article 11 of [Ordinance No 2/2013], according to which the entire financial burden associated with the public service obligations imposed on the energy companies is to be borne by customers, permissible under Articles 36 and 38 of the [Charter] and under Article 3 of [Directive 2009/73], considering that:
(a) the economic burden associated with the public service obligations does not affect all energy companies;
(b) the costs of the public service obligations are borne mainly by final customers, who are unable to contest them, even though they obtain natural gas from end suppliers at freely determined prices;
(c) there is no differentiation of the financial burden arising from the performance of the public service obligations which is borne by different types of customers;
(d) there is no time limitation for the application of this measure;
(e) the calculation of the value of the public service obligations is made on the basis of the costs accounting method according to a forecast model?
(2) Is a national legal provision such as Section 5 of the Transitional and Final Provisions of the Law on Normative Legal Acts, which releases the [Regulatory Commission] from the obligations of Articles 26 to 28 of [that law] and in particular from the obligations that exist when preparing the draft of a sub-statutory normative legal act to observe the principles of necessity, justification, foreseeability, transparency, coherence, subsidiarity, proportionality and stability, to hold a public hearing with citizens and legal persons, to publish the draft in advance together with the reasoning and to set out reasoning, including with regard to compatibility with EU law, permissible under Article 3 of Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC, in consideration of recitals 44 and 47 to 49 thereof?’
46) In the present case, the first question bears a clear relation to the purpose of the case in the main proceedings, since, by that question, the referring court wishes to ascertain whether the national provisions the legality of which have been challenged before it are compatible with the obligations which Article 3 of Directive 2009/73, read in the light of Articles 36 and 38 of the Charter, imposes on the Member States in the natural gas sector, and it does not appear that the problem which it raises is hypothetical. In addition, that court has, for that purpose, set out sufficient factual and legal material in order for the Court to give a useful answer to that question. Furthermore, even if the referring court’s exposition of the applicable national law is inaccurate, it does not follow that the question which it refers is inadmissible.
51) In those circumstances, the referring court’s first question must be construed as asking, in essence, whether Article 3(1) to (3) of Directive 2009/73, read in the light of Articles 36 and 38 of the Charter, must be interpreted as precluding legislation of a Member State which provides that the costs associated with the natural gas storage obligations imposed on natural gas undertakings in order to ensure the security and regularity of natural gas supply in that Member State are to be borne entirely by those undertakings’ customers, who may be private individuals.
58) The interpretation of the condition relating to the pursuit of a general economic interest must furthermore take account of Article 14 TFEU, of Protocol (No 26) on services of general interest, annexed to the EU Treaty, as amended by the Treaty of Lisbon, and to the FEU Treaty, which expressly recognises the essential role and the wide discretion of the authorities of the Member States in providing, commissioning and organising services of general economic interest, and of the Charter, in particular Article 36 of the Charter on access to services of general economic interest (see, to that effect, judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraphs 40 and 41).
85) Furthermore, since the referring court also harbours doubts as to the permissibility of the requirement to pass on the costs at issue in the main proceedings as regards Article 3(3) of Directive 2009/73, on the basis that the national legislation at issue in the main proceedings has the effect of passing on the costs of the storage obligations to final consumers of natural gas, who are in part private individuals, irrespective of whether they are vulnerable consumers, it should be noted that Article 3(3) of that directive provides, inter alia, that Member States are to take appropriate measures to protect final customers and ensure that there are adequate safeguards to protect vulnerable customers and ensure high levels of consumer protection, the latter of which is also referred to in Article 38 of the Charter.
88) In the light of all of the foregoing considerations, the answer to the first question referred is that Article 3(1) to (3) of Directive 2009/73, read in the light of Articles 36 and 38 of the Charter, must be interpreted as not precluding legislation of a Member State which provides that the costs associated with the natural gas storage obligations imposed on natural gas undertakings in order to ensure the security and regularity of natural gas supply in that Member State are to be borne entirely by those undertakings’ customers, who may be private individuals, provided that that legislation pursues an objective of general economic interest, that it complies with the requirements of the principle of proportionality and that the public service obligations which it lays down are clearly defined, transparent, non-discriminatory, verifiable and guarantee equality of access for EU gas undertakings to national consumers.
101) Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Tenth Chamber) hereby rules: