Opinion of Advocate General Campos Sánchez-Bordona delivered on 16 June 2022.

• Jurisdiction: European Union
• Date: 16 June 2022
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SÁNCHEZ-BORDONA

DELIVERED ON 16 June 2022 (1)

Case C‑289/21

IG

v

Varhoven administrativen sad

(Request for a preliminary ruling from the Administrativen sad Sofia-grad (Administrative Court, Sofia, Bulgaria))

(Preliminary ruling procedure – Energy policy – Promotion of energy efficiency – Directive 2012/27/EU – Article 47 of the Charter of Fundamental Rights of the European Union – Right to an effective remedy and to judicial protection – Damages for breach of EU law – Amendment of national legislation during the course of an appeal)

1. Under Bulgarian procedural law, as described in this reference for a preliminary ruling, in principle, legal actions against sub-statutory legislative acts become devoid of purpose where the act in question has been amended before judgment is given.

2. In the original proceedings, after his action was declared devoid of purpose as a result of the amendment to the legislative act, the individual to whom this rule of procedure was applied lodged an action for non-contractual liability against the State.

3. The court which has to rule on that action wishes to know, in summary, whether that rule of procedure is compatible with the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

I. Legislative framework

A. European Union law

1. Directive 2012/27/EU (2)

4. Article 9(1) provides that:

‘Member States shall ensure that, in so far as it is technically possible, financially reasonable and proportionate in relation to the potential energy savings, final customers for electricity, natural gas, district heating, district cooling and domestic hot water are provided with competitively priced individual meters that accurately reflect the final customer’s actual energy consumption and that provide information on actual time of use.’

5. Article 10 specifies the content and characteristics of the information to be provided to customers in their bills.

B. Bulgarian law

1. Administrativnoprotsesualen kodeks (3)

6. Article 156 establishes that:

‘(1) … With the agreement of the other defendants and the interested parties who benefit from the disputed act, the administrative authority may withdraw the said act in whole or in part, or adopt the act which it had refused to adopt.

(2) The consent of the applicant is also required in order to withdraw the act after the first hearing has been held.

(3) Once an act has been withdrawn it may be reissued only if new circumstances arise.

(4) Where an action against an act is accompanied by a claim for damages, the proceedings in respect of that claim shall continue.’

7. Article 187 provides that:

‘(1) There shall be no time limit on actions brought against implementing regulatory acts.

(2) An action may not be brought against a regulatory act following an earlier action founded on the same grounds.’

8. Article 195 stipulates that:

‘(1) An implementing regulatory act shall be deemed to be annulled from the date on which the judicial decision comes into force.

(2) The legal consequences of a regulatory act that has been declared void or voidable shall be adopted by the competent authority of its own motion within a maximum period of 3 months from the entry into force of the judicial decision.’

9. Under Article 204(3), where the loss or damage has been caused by an administrative act which is void or has been withdrawn, the court with which the claim for damages has been lodged must establish whether the act is unlawful.

10. Article 221(4) states:

‘Where the administrative authority, with the consent of the other defendants, withdraws the administrative act or adopts the act whose adoption had been refused, the Varhoven administrativen sad [Supreme Administrative Court] shall set aside the judicial decision issued in respect of the said act or refusal, on the grounds of procedural irregularity, and shall close the case.’

2. Zakon za otgovornostta na darzhavata i obshtinite za vredi (4)

11. Article 1 provides:

‘1. The State and the municipalities shall be liable for loss or damage caused to natural or legal persons by unlawful legal acts and unlawful acts and omissions performed by State or municipal bodies or officials in the exercise of their administrative functions […].

2. Actions brought pursuant to paragraph 1 shall be heard under the administrative procedure established by the [Code of administrative procedure] […].’

II. Facts, proceedings and questions referred for a preliminary ruling

12. The Naredba No 16-334/06.04.2007 za toplosnabdyavaneto, (5) adopted by the Ministry of Economy and Energy of the Republic of Bulgaria, included, in Annex 1 to Article 61(1), the method for allocating thermal energy consumption in buildings in shared ownership (‘the calculation method’).

13. IG challenged the calculation method before the Varhoven administrativen sad (Supreme Administrative Court; ‘the VAS’) in case No 1372/20016.

14. On 13 April 2018 the VAS, sitting in a Chamber of three judges, found in favour of the applicant, ruling that the calculation method did not satisfy the objective of Articles 9 and 10 of Directive 2012/27 (that thermal energy should be billed for on the basis of actual consumption), rendering it void ex tunc. (6)

15. The Ministry of Economy and Energy lodged appeal No 1318/2019 against the judgment at first instance with the VAS, which would hear the case sitting in a Chamber of five judges.

16. On 20 September 2019 a new decree came into force which, in particular, amended the formula for the calculation method.

17. On 11 February 2020 a Chamber of the VAS comprising five judges with jurisdiction to hear the appeal ruled that the case had become devoid of purpose. The ground for its ruling was that the amendment to point 6.1.1 of the calculation method had resulted in its repeal and that, under national law, the courts can make substantive rulings only in respect of provisions that are in force.

18. The five-judge Chamber of the VAS therefore set aside the judgment at first instance without needing to examine the validity of the calculation method. That ruling became final.

19. At this point, IG lodged a claim with the Administrativen sad Sofia-grad (Administrative Court, Sofia, Bulgaria) for damages of BGN 830, equating to the costs of the first proceedings (Case No 1372/2016) and BGN 300 for the non-material damage (7) caused by the judgment in appeal No 1318/2019.

20. The claim for damages is brought against the VAS, which is the defendant in the proceedings before the referring court.

21. In this context, the Administrativen sad Sofia-grad (Administrative Court, Sofia) refers the following questions to the Court of Justice for a preliminary ruling:

‘1) Does the amendment of a provision of a national normative legal act previously declared by a court of appeal [sic] to be incompatible with an applicable provision of EU law relieve the Court of Cassation of the obligation to examine the provision applicable prior to the amendment and accordingly to assess whether it is compatible with EU law?

2) Does the presumption that the provision at issue has been withdrawn constitute an effective remedy with regard to rights and freedoms guaranteed by EU law (in casu, Articles 9 and 10 of Directive 2012/27/EU), or does the possibility provided for in national law to examine whether the national provision in question was compatible with EU law before it was amended constitute such a remedy if it exists only if the competent court is seised of a specific action for damages on account of that provision and only in relation to the person who brought the action?

3) If Question 2 is answered in the affirmative, is it permissible for the provision in question to continue to regulate, during the period between its adoption and its amendment, legal relationships in respect of an unlimited group of persons who have not brought actions for damages on account of that provision, or for the assessment of the compatibility of the national rule with the EU law provision in respect of the period prior to the amendment not to have been carried out in relation to those persons?’

III. Proceedings before the Court of Justice

22. The request for a preliminary ruling was lodged with the Court on 5 May 2021.

23. Written observations were submitted by IG, the VAS, the Polish Government and the Commission. With the exception of the Polish Government, all appeared at the hearing held on 6 April 2022.

IV. Analysis

A. Preliminary considerations

24. The subject matter of a reference for a preliminary ruling derives, naturally, from the dispute to be resolved in the main proceedings. The point at issue in those proceedings is simply whether IG is entitled to compensation for the loss or damage allegedly caused him by the judgment given in accordance with Bulgarian procedural law, which prevented him from obtaining a substantive ruling on the validity of the calculation method.

25. It is therefore beyond the remit of this reference for a preliminary ruling to determine: (a) whether point 6.1.1 of the calculation method is compatible with Directive 2012/27; (b) whether IG was entitled to damages for breach of that directive; and (c) whether third parties other than IG would be entitled to such damages.

26. The reference for a preliminary ruling therefore does not address whether or not it is appropriate to award damages for the application of a regulatory provision concerning energy efficiency which was allegedly contrary to EU law. The only damages sought by IG are, I stress, those (allegedly) arising from domestic rules of procedure which enable a ruling given at first instance that the method for calculating energy bills is void to be set aside.

27. In order to rule on the harm suffered and on possible damages, the referring court needs to know whether the rule of national law which caused the...