„EVN Bulgaria Toplofikatsia“ EAD v Nikolina Stefanova Dimitrova and „Toplofikatsia Sofia“ EAD v Mitko Simeonov Dimitrov.

• Jurisdiction: European Union
• Celex Number: 62017CJ0708
• ECLI: ECLI:EU:C:2019:1049
• Date: 05 December 2019
• Docket Number: C-725/17,C-708/17
• Procedure Type: Reference for a preliminary ruling
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Fourth Chamber)

5 December 2019 (*)

(References for a preliminary ruling — Consumer protection — Directive 2011/83/EU — Consumer law — Article 2(1) — Concept of ‘consumer’ — Article 3(1) — Contract concluded between a trader and a consumer — Contract for the supply of district heating — Article 27 — Inertia selling — Directive 2005/29/EC — Unfair business-to-consumer commercial practices in the internal market — Article 5 — Prohibition of unfair commercial practices — Annex I — Unsolicited supply — National law requiring each owner of a property in a building in co-ownership connected to a district heating network to contribute to the costs of thermal energy consumption by the common areas and internal installation of the building — Energy efficiency — Directive 2006/32/EC — Article 13(2) — Directive 2012/27/EU — Article 10(1) — Billing information — National law providing that, in a building in co-ownership, bills for the consumption of thermal energy by the internal installation are calculated, for each owner of an apartment in the building, in proportion to the heated volume of his or her apartment)

In Joined Cases C‑708/17 and C‑725/17,

TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Rayonen sad Asenovgrad (Assenovgrad District Court, Bulgaria) (C‑708/17) and the Sofiyski rayonen sad (Sofia District Court, Bulgaria) (C‑725/17), made by decisions of 6 December 2017 and of 5 December 2017 respectively, received at the Court on 19 December 2017 and 27 December 2017 respectively, in the proceedings

‘EVN Bulgaria Toplofikatsia’ EAD

v

Nikolina Stefanova Dimitrova (C‑708/17),

and

‘Toplofikatsia Sofia’ EAD

v

Mitko Simeonov Dimitrov (C‑725/17),

intervener:

‘Termokomplekt’ OOD,

THE COURT (Fourth Chamber),

composed of M. Vilaras, President of the Chamber, S. Rodin, D. Šváby (Rapporteur), K. Jürimäe and N. Piçarra, Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 12 December 2018,

after considering the observations submitted on behalf of:

– ‘EVN Bulgaria Toplofikatsia’ EAD, by S. Radev and S. Popov, acting as Agents,

– ‘Toplofikatsia Sofia’ EAD, by S. Chakalski, I. Epitropov and V. Ivanov, acting as Agents,

– N. Dimitrova, by S. Memtsov, D. Dekov and M. Kavrakova, advokati,

– the Lithuanian Government, by G. Taluntytė and J. Prasauskienė and by D. Kriaučiūnas, acting as Agents,

– the European Commission, by N. Ruiz García and by K. Talabér-Ritz and N. Nikolova, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 30 April 2019,

gives the following

Judgment

1 These requests for a preliminary ruling concern the interpretation of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22), of Article 13(2) of Directive 2006/32/EC of the European Parliament and of the Council of 5 April 2006 on energy end-use efficiency and energy services and repealing Council Directive 93/76/EEC (OJ 2006 L 114, p. 64), of Articles 5 and 27 of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64), and of Article 10(1) of Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC (OJ 2012 L 315, p. 1).

2 The requests were made in two sets of proceedings between, first, ‘EVN Bulgaria Toplofikatsia’ EAD (‘EVN’) and Nikolina Stefanova Dimitrova (C‑708/17) and, second, ‘Toplofikatsia Sofia’ EAD and Mitko Simeonov Dimitrov (C‑725/18), concerning the payment of bills for the consumption of thermal energy by the internal installation in buildings in co-ownership.

Legal context

European Union law

Directive 2005/29

3 Article 3(2) of Directive 2005/29 provides:

‘This Directive is without prejudice to contract law and, in particular, to the rules on the validity, formation or effect of a contract.’

4 Article 5 of that directive provides:

‘1. Unfair commercial practices shall be prohibited.

…

5. Annex I contains the list of those commercial practices which shall in all circumstances be regarded as unfair. …’

5 Annex I to that directive, headed ‘Commercial practices which are in all circumstances considered unfair’, includes:

‘Aggressive selling practices

…

(29) Demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer except where the product is a substitute supplied in conformity with Article 7(3) of Directive 97/7/EC [of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19)] (inertia selling).’

Directive 2011/83

6 Recitals 14 and 60 of Directive 2011/83 state:

‘(14) This Directive should not affect national law in the area of contract law for contract law aspects that are not regulated by this Directive. Therefore, this Directive should be without prejudice to national law regulating for instance the conclusion or the validity of a contract (for instance in the case of lack of consent). Similarly, this Directive should not affect national law in relation to the general contractual legal remedies, the rules on public economic order, for instance rules on excessive or extortionate prices, and the rules on unethical legal transactions.

…

(60) Since inertia selling, which consists of unsolicited supply of goods or provision of services to consumers, is prohibited by Directive [2005/29] but no contractual remedy is provided therein, it is necessary to introduce in this Directive the contractual remedy of exempting the consumer from the obligation to provide any consideration for such unsolicited supply or provision.’

7 Article 2 of that directive, entitled ‘Definitions’, provides:

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

(1) “consumer” means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession;

…’

8 Article 3 of that directive provides:

‘1. This Directive shall apply, under the conditions and to the extent set out in its provisions, to any contract concluded between a trader and a consumer. It shall also apply to contracts for the supply of water, gas, electricity or district heating, including by public providers, to the extent that these commodities are provided on a contractual basis.

…

5. This Directive shall not affect national general contract law such as the rules on the validity, formation or effect of a contract, in so far as general contract law aspects are not regulated in this Directive.

…’

9 Article 27 of the same directive, headed ‘Inertia selling’, states:

‘The consumer shall be exempted from the obligation to provide any consideration in cases of unsolicited supply of goods, water, gas, electricity, district heating or digital content or unsolicited provision of services, prohibited by Article 5(5) and point 29 of Annex I to Directive [2005/29]. In such cases, the absence of a response from the consumer following such an unsolicited supply or provision shall not constitute consent.’

10 Article 28(2) of Directive 2011/83 provides that ‘provisions of this Directive shall apply to contracts concluded after 13 June 2014’.

Directive 2006/32

11 Recitals 1, 12, 20 and 29 of Directive 2006/32 state:

‘(1) In the Community there is a need for improved energy end-use efficiency, managed demand for energy and promotion of the production of renewable energy, as there is relatively limited scope for any other influence on energy supply and distribution conditions in the short to medium term, either through the building of new capacity or through the improvement of transmission and distribution. This Directive thus contributes to improved security of supply.

…

(12) This Directive requires action to be undertaken by the Member States, with the fulfilment of its objectives depending on the effects that such action has on the final consumers of energy. The end result of Member States’ action is dependent on many external factors which influence the behaviour of consumers as regards their energy use and their willingness to implement energy saving methods and use energy saving devices. Therefore, even though Member States commit themselves to making efforts to achieve the target figure of 9%, the national energy savings target is indicative in nature and entails no legally enforceable obligation for Member States to achieve it.

…

(20) Energy distributors, distribution system operators and retail energy sales companies can improve energy efficiency in the Community if the energy services they market include efficient end-use, such as indoor thermal comfort, domestic hot water, refrigeration, product manufacturing, illumination and motive power. Profit maximisation for energy distributors, distribution system operators and retail energy sales companies thus becomes more closely related to selling energy services to as many customers as possible than to selling as much energy as possible to each customer. Member States should endeavour to avoid any distortion of competition in this area, in order to guarantee a level...