Global NRG Kereskedelmi és Tanácsadó Zrt. v Magyar Energetikai és Közmű-szabályozási Hivatal.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2024:78
• Date: 25 January 2024
• Docket Number: C-277/22
• Celex Number: 62022CJ0277
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Eighth Chamber)

25 January 2024 (*)

(Reference for a preliminary ruling – Internal market in natural gas – Directive 2009/73/EC – Article 41(17) – Natural gas transmission system – National regulatory authority – Fixing of system usage charges and connection fees – Fixing of remuneration for any services provided by the system operator – Concept of ‘a party affected by a decision of a regulatory authority’ – Appeal against that decision – Right to an effective remedy – Article 47 of the Charter of Fundamental Rights of the European Union)

In Case C‑277/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Fővárosi Törvényszék (Budapest High Court, Hungary), made by decision of 22 March 2022, received at the Court on 22 April 2022, in the proceedings

Global NRG Kereskedelmi és Tanácsadó Zrt.

v

Magyar Energetikai és Közmű-szabályozási Hivatal,

intervening party:

FGSZ Földgázszállító Zrt.,

THE COURT (Eighth Chamber),

composed of N. Piçarra (Rapporteur), President of the Chamber, M. Safjan and N. Jääskinen, Judges,

Advocate General: A. Rantos,

Registrar: M. Krausenböck, Administrator,

having regard to the written procedure and further to the hearing on 7 September 2023,

after considering the observations submitted on behalf of:

– Global NRG Kereskedelmi és Tanácsadó Zrt., by K. Bendzsel-Zsebik, M. Kohlrusz and B. Világi, ügyvédek,

– the Magyar Energetikai és Közmű-szabályozási Hivatal, by L. Hoschek, A.T. Kiss and F.F. Tölgyessy, Legal Advisers,

– FGSZ Földgázszállító Zrt., by K. Barkasziné Takács and P. Németh, Legal Advisers,

– the Hungarian Government, by M.Z. Fehér and M.M. Tátrai, acting as Agents,

– the Spanish Government, by A. Gavela Llopis and J. Ruiz Sánchez, acting as Agents,

– the Polish Government, by B. Majczyna, acting as Agent,

– the Finnish Government, by A. Laine, acting as Agent,

– the European Commission, by O. Beynet, T. Scharf and A. Tokár, 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 Article 41(17) 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), in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in proceedings between Global NRG Kereskedelmi és Tanácsadó Zrt. (‘Global NRG’), a company which markets natural gas, and the Magyar Energetikai és Közmű-szabályozási Hivatal (Hungarian Regulation Authority for the Energy Sector and Public Utilities) (‘the national regulator’) concerning the lawfulness of the national regulator’s decision fixing the usage charges and connection fees for the natural gas transmission system and the remuneration for any services provided by the operator of that system.

Legal context

European Union law

Directive 2009/73

3 Recital 33 of Directive 2009/73 states:

‘… The independent body to which a party affected by the decision of a national regulator has a right to appeal could be a court or other tribunal empowered to conduct a judicial review.’

4 Article 32 of that directive, entitled ‘Third-party access’, provides in paragraph 1 thereof:

‘Member States shall ensure the implementation of a system of [third-party] access to the transmission and distribution system, and [liquefied natural gas (LNG)] facilities based on published tariffs, applicable to all eligible customers, including supply undertakings, and applied objectively and without discrimination between system users. Member States shall ensure that those tariffs, or the methodologies underlying their calculation are approved prior to their entry into force in accordance with Article 41 by a regulatory authority referred to in Article 39(1) and that those tariffs – and the methodologies, where only methodologies are approved – are published prior to their entry into force.’

5 Under Article 41 of that directive, entitled ‘Duties and powers of the regulatory authority’:

‘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;

…

6. The regulatory authorities shall be responsible for fixing or approving sufficiently in advance of their entry into force at least the methodologies used to calculate or establish the terms and conditions for:

(a) connection and access to national networks, including transmission and distribution tariffs, and terms, conditions and tariffs for access to LNG facilities. …;

…

10. Regulatory authorities shall have the authority to require transmission, storage, LNG and distribution system operators, if necessary, to modify the terms and conditions, including tariffs and methodologies referred to in this Article, to ensure that they are proportionate and applied in a non-discriminatory manner. …

…

17. Member States shall ensure that suitable mechanisms exist at national level under which a party affected by a decision of a regulatory authority has a right of appeal to a body independent of the parties involved and of any government.’

Regulation (EC) No 715/2009

6 Article 13 of Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005 (OJ 2009 L 211, p. 36), entitled ‘Tariffs for access to networks’, provides, in paragraph 1 thereof:

‘Tariffs, or the methodologies used to calculate them, applied by the transmission system operators and approved by the regulatory authorities pursuant to Article 41(6) of Directive [2009/73], as well as tariffs published pursuant to Article 32(1) of that Directive, shall be transparent, take into account the need for system integrity and its improvement and reflect the actual costs incurred, in so far as such costs correspond to those of an efficient and structurally comparable network operator and are transparent, whilst including an appropriate return on investments, and, where appropriate, taking account of the benchmarking of tariffs by the regulatory authorities. Tariffs, or the methodologies used to calculate them, shall be applied in a non-discriminatory manner.’

Hungarian law

7 Paragraph 129/B of the földgázellátásról szóló 2008. évi XL. törvény (Law No XL of 2008 concerning the...