Opinion of Advocate General Bobek delivered on 15 April 2021.

• Jurisdiction: European Union
• Date: 15 April 2021
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 15 April 2021(1)

Case C‑683/19

Viesgo Infraestructuras Energéticas, SA

v

Administración General del Estado,

Iberdrola, SA,

Naturgy Energy Group, SA, formerly Gas Natural SDG, SA,

EDP España, SA,

CIDE, Asociación de Distribuidores de Energía Eléctrica,

Endesa, SA,

Agri-Energía, SA,

Navarro Generación, SA

(Request for a preliminary ruling from the Tribunal Supremo (Supreme Court, Spain))

(Reference for a preliminary ruling – Common rules for the internal market for electricity – Directive 2009/72/EC – Imposition of public service obligations – Financing of a regulated discount which applies only to certain companies – Requirements of transparency and non-discrimination)

I. Introduction

1. The applicants are companies operating on the Spanish electricity market. They were required to contribute to the financing of a social welfare measure for vulnerable consumers in Spain. The Spanish legislature declared that obligation to be a ‘public service obligation’, within the meaning of Article 3(2) of Directive 2009/72/EC. (2) One of the applicants challenged the compatibility of that financing obligation with EU law before the Tribunal Supremo (Supreme Court, Spain) (‘the Supreme Court’).

2. That court upheld the applicants’ action. In the Supreme Court’s view, the compatibility requirements under Article 3(2) of Directive 2009/72 constituted ‘acte clair’, which meant that no request for a preliminary ruling was necessary. However, upon appeal for the protection of constitutional rights, the Tribunal Constitucional (Constitutional Court, Spain) (‘the Constitutional Court’) set aside that judgment. It held that the Supreme Court had erred in finding the existence of ‘acte clair’ and, as such, infringed the constitutional rights of the Administración General del Estado (Spanish State Administration) in so far as it had declared domestic law to be incompatible with EU law without having first referred a request for a preliminary ruling to the Court.

3. Following that judgment, the Supreme Court referred the present request to this Court in order to enquire about whether the financing obligation imposed on the applicants is compatible with Article 3(2) of Directive 2009/72.

II. Legal framework

A. EU law

4. Directive 2009/72 replaced Directive 2003/54/EC (3) with a view to further developing the common rules for the internal market in electricity. Recital 50 thereof states the following:

‘The public service requirements, including as regards the universal service, and the common minimum standards that follow from them need to be further strengthened to make sure that all consumers, especially vulnerable ones, are able to benefit from competition and fair prices. The public service requirements should be defined at national level, taking into account national circumstances; Community law should, however, be respected by the Member States. The citizens of the Union and, where Member States deem it appropriate, small enterprises, should be able to enjoy public service obligations, in particular with regard to security of supply, and reasonable prices. …’

5. Article 2 of Directive 2009/72 provides:

‘For the purposes of this Directive, the following definitions apply:

…

21. “vertically integrated undertaking” means an electricity undertaking or a group of electricity undertakings where the same person or the same persons are entitled, directly or indirectly, to exercise control, and where the undertaking or group of undertakings perform at least one of the functions of transmission or distribution, and at least one of the functions of generation or supply of electricity;

…’

6. Article 3 of Directive 2009/72 concerns ‘public service obligations’ and consumer protection. By virtue of its subparagraphs 2 and 6:

‘2. Having full regard to the relevant provisions of the Treaty, in particular Article 86 thereof, Member States may impose on undertakings operating in the electricity sector, in the general economic interest, public service obligations which may relate to security, including security of supply, regularity, quality and price of supplies and environmental protection, including energy efficiency, energy from renewable sources and climate protection. Such obligations shall be clearly defined, transparent, non-discriminatory, verifiable and shall guarantee equality of access for electricity undertakings of the Community to national consumers. …

…

6. Where financial compensation, other forms of compensation and exclusive rights which a Member State grants for the fulfilment of the obligations set out in paragraphs 2 and 3 are provided, this shall be done in a non-discriminatory and transparent way.’

B. Spanish law

7. Entitled ‘Vulnerable consumers’, Article 45 of Ley 24/2013, de 26 de diciembre, del Sector Eléctrico (Law 24/2013 of 26 December 2013 on the electricity sector) (‘Law 24/2013’), states, in the relevant part:

‘2. The regulated discount shall apply to vulnerable consumers who meet the social, consumption and purchasing power characteristics determined by Royal Decree of the Council of Ministers. …

…

3. The regulated discount shall cover the difference between the value of the voluntary price intended for low-usage consumers and a base value, referred to as a “tariff of last resort”, and shall be applied by the relevant reference supplier to the invoices of consumers entitled to the regulated discount.

…

4. The regulated discount shall be treated as a public service obligation within the meaning of Directive [2009/72], and shall be borne by the parent companies of company groups or, where applicable, by companies that simultaneously carry on electricity production, distribution and retail activities.

The apportionment percentage of the sums to be financed shall be calculated, for each company group, on the basis of the relationship between, on the one hand, the total of the annual average number of supplies connected to the distribution companies’ distribution networks and the number of customers of the retailers held by the group, and, on the other, the total of all the annual average supply and customer values of all the company groups that are to be taken into account for the purposes of that apportionment.

That apportionment percentage shall be calculated annually by the Comisión Nacional de los Mercados y la Competencia [National Commission on Markets and Competition, Spain], in accordance with the procedure and conditions laid down by regulation. …

…

In any event, the contributions which each of those companies must make shall be paid into a specific deposit account created for that purpose by the administrative body responsible for its management.’

8. Real Decreto-ley 9/2013, de 12 de julio, por el que se adoptan medidas urgentes para garantizar la estabilidad financiera del sistema eléctrico (Royal Decree-Law 9/2013 of 12 July 2013 adopting urgent measures to guarantee the financial stability of the electricity system) (‘Royal Decree-Law 9/2013’), states, in its fifth recital, in the relevant part:

‘This Royal Decree-Law shall also amend the system governing how the costs of the regulated discount are to be borne.

…

On that basis, and in order to contribute to the necessary and urgent reduction in the costs of the system, it is deemed necessary to amend the scheme for the apportionment of costs introduced by Order IET/843/2012 … by requiring, by way of a public service obligation, that the cost of the regulated discount be borne by the parent companies of companies or company groups that carry on electricity production, distribution and retail activities, and which are vertically integrated groups.

The imposition of such a requirement on those parent companies makes it possible, even indirectly, for the burden to be shared between the main commercial activities of the electricity sector. Transmission activities are therefore excluded from such an apportionment, but that exception shall be regarded as justified because it is a regulated activity carried out under a statutory monopoly and exclusivity arrangement, bearing in mind that the single transmission undertaking cannot, unlike the abovementioned companies or company groups, recover from the market any cost it would have to bear in that regard, since that would ultimately frustrate the objective pursued by that amendment.’

9. Real Decreto 968/2014, de 21 de noviembre, por el que se desarrolla la metodología para la fijación de los porcentajes de reparto de las cantidades a financiar relativas al bono social (Royal Decree‑Law 968/2014 of 21 November 2014 laying down the methodology for setting the percentages for apportionment of the sums to be financed for the regulated discount) (‘Royal Decree‑Law 968/2014’), in Articles 2 and 3, sets out the methodology for financing the regulated discount provided for in Article 45(4) of Law 24/2013.

III. Facts, national proceedings and the questions referred

10. Real Decreto-ley 6/2009 (‘Royal Decree-Law 6/2009’) put in place a mechanism to offer certain consumers with particular social, consumption and purchasing power characteristics (‘vulnerable consumers’) a discount on the price of electricity in Spain. Accordingly, eligible consumers receive an automatic reduction in the price of electricity (‘the regulated discount’), which is applied directly to their electricity bill by the supplier of last resort. (4) Those suppliers thus charge eligible consumers a price that is lower than the market price for electricity. (5)

11. Originally, under Royal Decree-Law 6/2009, that system was financed by imposing a tax on all companies owning electricity production facilities. However, on 7 February 2012, the Supreme Court annulled Royal Decree-Law 6/2009 on the ground that its financing system was incompatible with Directive 2009/72 (‘the 2012 judgment’). (6) An appeal for the protection of...