„Оvergas Mrezhi“ AD and Sdruzhenie s nestopanska tsel „Balgarska gazova asotsiatsia“ v Komisia za energiyno i vodno regulirane (KEVR).

• Jurisdiction: European Union
• Celex Number: 62019CJ0005
• ECLI: ECLI:EU:C:2020:343
• Date: 30 April 2020
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-5/19
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Tenth Chamber)

30 April 2020 (*)

(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)

In Case C‑5/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria), made by decision of 19 December 2018, received at the Court on 4 January 2019, in the proceedings

‘Оvergas Mrezhi’ AD,

‘Balgarska gazova asotsiatsia’

v

Komisia za energiyno i vodno regulirane,

Other party:

Prokuratura na Republika Bulgaria,

THE COURT (Tenth Chamber),

composed of I. Jarukaitis (Rapporteur), President of the Chamber, E. Juhász and M. Ilešič, Judges,

Advocate General: G. Pitruzzella,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– ‘Оvergas Mrezhi’ AD, by S. Dimitrov,

– the ‘Balgarska gazova asotsiatsia’, by P. Pavlov,

– the Komisia za energiyno i vodno regulirane, by I. Ivanov,

– the Bulgarian Government, by E. Petranova and T. Mitova, acting as Agents,

– the European Commission, by O. Beynet and Y. Marinova, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

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).

2 The request has been made in proceedings between ‘Оvergas Mrezhi’ AD, a public limited company incorporated under Bulgarian law, and the ‘Balgarska gazova asotsiatsia’, a non-profit making organisation, on the one hand, and the Komisia za energiyno i vodno regulirane (Energy and Water Regulatory Commission, Bulgaria) (‘the Regulatory Commission’), on the other, concerning the legality of regulations adopted by the latter according to which the entire financial burden associated with the public service obligations imposed on the energy companies is to be borne by customers, who may be private individuals.

Legal context

European Union law

The Charter

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.’

Directive 2009/73

5 Recitals 22, 44 and 47 to 49 of Directive 2009/73 state:

‘(22) The security of energy supply is an essential element of public security and is therefore inherently connected to the efficient functioning of the internal market in gas and the integration of the isolated gas markets of Member States. …

…

(44) Respect for the public service requirements is a fundamental requirement of this Directive, and it is important that common minimum standards, respected by all Member States, are specified in this Directive, which take into account the objectives of common protection, security of supply, environmental protection and equivalent levels of competition in all Member States. It is important that the public service requirements can be interpreted on a national basis, taking into account national circumstances and subject to the respect of [EU] law.

…

(47) The public service requirements and the common minimum standards that follow from them need to be further strengthened to make sure that all consumers, especially vulnerable ones, can benefit from competition and fair prices. The public service requirements should be defined at national level, taking into account national circumstances; [EU] law should, however, be respected by the Member States. The citizens of the Union and, where Member States deem it to be appropriate, small enterprises, should be able to enjoy public service obligations, in particular with regard to security of supply and reasonable tariffs. … [C]onsumers should have access to their consumption data and associated prices and services costs …

(48) Consumer interests should be at the heart of this Directive and quality of service should be a central responsibility of natural gas undertakings. Existing rights of consumers need to be strengthened and guaranteed, and should include greater transparency. … Consumer rights should be enforced by Member States or, where a Member State has so provided, the regulatory authorities.

(49) Clear and comprehensible information should be made available to consumers concerning their rights in relation to the energy sector. …’

6 Article 2 of that directive contains the following definitions:

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

1. “natural gas undertaking” means a natural or legal person carrying out at least one of the following functions: production, transmission, distribution, supply, purchase or storage of natural gas, including [liquefied natural gas (LNG)], which is responsible for the commercial, technical and/or maintenance tasks related to those functions, but shall not include final customers;

…

5. “distribution” means the transport of natural gas through local or regional pipeline networks with a view to its delivery to customers, but not including supply;

…

7. “supply” means the sale, including resale, of natural gas, including LNG, to customers;

…

24. “customer” means a wholesale or final customer of natural gas or a natural gas undertaking which purchases natural gas;

…’

7 Article 3 of that directive, entitled ‘Public service obligations and customer protection’, provides in paragraphs 1 to 3:

‘1. Member States shall ensure, on the basis of their institutional organisation and with due regard to the principle of subsidiarity, that, without prejudice to paragraph 2, natural gas undertakings are operated in accordance with the principles of this Directive with a view to achieving a competitive, secure and environmentally sustainable market in natural gas, and shall not discriminate between those undertakings as regards their rights or obligations.

2. Having full regard to the relevant provisions of the [FEU] Treaty, in particular Article [106] thereof, Member States may impose on undertakings operating in the gas 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 [EU natural gas undertakings] to national consumers. In relation to security of supply, energy efficiency [and] demand-side management …, Member States may introduce the implementation of long-term planning, taking into account the possibility of third parties seeking access to the system.

3. Member States shall take appropriate measures to protect final customers, and shall, in particular, ensure that there are adequate safeguards to protect vulnerable customers. In this context, each Member State shall define the concept of vulnerable customers which may refer to energy poverty and, inter alia, to the prohibition of disconnection of gas to such customers in critical times. Member States shall ensure that rights and obligations linked to vulnerable customers are applied. … They shall ensure high levels of consumer protection, particularly with respect to transparency regarding contractual terms and conditions, general information and dispute settlement mechanisms. …’

8 Chapter VIII of the directive, on the national regulatory authorities, contains Articles 39 and 41 thereof. Article 39(1) provides that ‘each Member State shall designate a single national regulatory authority at national level’. Under the heading ‘Duties and powers of the regulatory authority’, Article 41(1) and (16) provides:

‘1. The regulatory authority shall have the following duties:

(a) fixing or approving, in accordance with transparent criteria, transmission or distribution tariffs or their methodologies;

…

16. Decisions taken by regulatory authorities shall be fully reasoned and justified to allow for judicial review. The decisions shall be available to the public while preserving the confidentiality of commercially sensitive information.’

Regulation (EU) No 994/2010

9 Regulation (EU) No 994/2010 of the European Parliament and of the Council of 20 October 2010 concerning measures to safeguard security of gas supply and repealing Council Directive 2004/67/EC (OJ 2010 L 295, p. 1), was repealed by Regulation (EU) 2017/1938 of the European Parliament and of the Council of 25 October 2017 concerning measures to safeguard the security of gas supply and repealing Regulation (EU) No 994/2010 (OJ 2017 L 280, p. 1), for the most part, as of 1 November 2017.

10 Article 4 of Regulation No 994/2010 was placed under the heading ‘Establishment of a Preventive Action Plan...