Opinion of Advocate General Rantos delivered on 3 April 2025.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2025:249
• Date: 03 April 2025

Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 3 April 2025 (1)

Case C‑87/24

AS „Gaso”,

AS „Conexus Baltic Grid”

v

Sabiedrisko pakalpojumu regulēšanas komisija

(Request for a preliminary ruling from the Administratīvā apgabaltiesa (Regional Administrative Court, Latvia))

( Reference for a preliminary ruling – Approximation of laws – Energy – Directive 2009/73/EC – Common rules for the internal market in natural gas – Article 41(8) – Concept of ‘appropriate incentive’ – Regulation (EC) No 715/2009 – Access to natural gas transmission networks – Article 13(1) – Concept of ‘appropriate return on investments’ – Tariffs for access to networks – Methodology established by the national regulatory authority – Rate of return on capital for the purpose of calculating tariffs – Criteria to be taken into account in fixing those tariffs )

I. Introduction

1. This request for a preliminary ruling from the Administratīvā apgabaltiesa (Regional Administrative Court, Latvia) concerns the interpretation of Article 41(8) of Directive 2009/73/EC (2) and of Article 13 of Regulation (EC) No 715/2009. (3)

2. The request has been made in connection with an action for annulment brought by, on the one hand, Gaso AS (‘Gaso’), a company incorporated under Latvian law which operates the natural gas distribution system in Latvia, and, on the other hand, Conexus Baltic Grid AS (‘Conexus Baltic Grid’), a company incorporated under Latvian law which operates the natural gas transmission system and natural gas storage facilities in the same Member State (together, ‘the applicants’), against a decision of the Sabiedrisko pakalpojumu regulēšanas komisija (Public Utilities Commission, Latvia; ‘the Latvian regulatory authority’), by which the latter set the rate of return on capital of the natural gas transmission system, the natural gas distribution system and natural gas storage for the calculation of access tariffs (‘the contested decision’).

3. Specifically, the referring court asks, in essence, how the concepts of ‘appropriate incentive’ within the meaning of Article 41(8) of Directive 2009/73 and ‘appropriate return on investments’ within the meaning of the first subparagraph of Article 13(1) of Regulation No 715/2009 should be interpreted, and how a national regulatory authority for the natural gas market, when calculating and determining tariffs for access to natural gas transmission and distribution networks and storage facilities, must ensure that the operators of such networks and facilities benefit from such an appropriate incentive and/or such an appropriate return on investments.

II. Legal context

A. European Union law

1. Directive 2009/73

4. Recitals 23, 25, 30 and 32 of Directive 2009/73 state:

‘(23) Further measures should be taken in order to ensure transparent and non-discriminatory tariffs for access to transport. Those tariffs should be applicable to all users on a non-discriminatory basis …

…

(25) Non-discriminatory access to the distribution network determines downstream access to customers at retail level. …

…

(30) Energy regulators need to be able to take decisions in relation to all relevant regulatory issues if the internal market in natural gas is to function properly, and to be fully independent from any other public or private interests. This precludes neither judicial review nor parliamentary supervision in accordance with the constitutional law of the Member States. …

…

(32) National regulatory authorities should be able to fix or approve tariffs, or the methodologies underlying the calculation of the tariffs, on the basis of a proposal by the transmission system operator or distribution system operator(s) or liquefied natural gas (LNG) system operator, or on the basis of a proposal agreed between those operator(s) and the users of the network. In carrying out those tasks, national regulatory authorities should ensure that transmission and distribution tariffs are non-discriminatory and cost-reflective, and should take account of the long-term, marginal, avoided network costs from demand-side management measures.’

5. Article 1 of that directive, which is entitled ‘Subject matter and scope’, provides in paragraph 1 thereof:

‘This Directive establishes common rules for the transmission, distribution, supply and storage of natural gas. It lays down the rules relating to the organisation and functioning of the natural gas sector, access to the market, the criteria and procedures applicable to the granting of authorisations for transmission, distribution, supply and storage of natural gas and the operation of systems.’

6. Article 2 of that directive, entitled ‘Definitions’, is worded as follows:

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

…

4. “transmission system operator” means a natural or legal person who carries out the function of transmission and is responsible for operating, ensuring the maintenance of, and, if necessary, developing the transmission system in a given area …;

…

6. “distribution system operator” means a natural or legal person who carries out the function of distribution and is responsible for operating, ensuring the maintenance of, and, if necessary, developing the distribution system in a given area and, where applicable, its interconnections with other systems …;

…

9. “storage facility” means a facility used for the stocking of natural gas and owned and/or operated by a natural gas undertaking, including the part of LNG facilities used for storage …;

10. “storage system operator” means a natural or legal person who carries out the function of storage and is responsible for operating a storage facility;

…’

7. Article 39 of that directive, entitled ‘Designation and independence of regulatory authorities’, provides in paragraph 4 thereof:

‘Member States shall guarantee the independence of the regulatory authority and shall ensure that it exercises its powers impartially and transparently. For this purpose, Member States shall ensure that, when carrying out the regulatory tasks conferred upon it by this Directive and related legislation, the regulatory authority:

(a) is legally distinct and functionally independent from any other public or private entity;

(b) ensures that its staff and the persons responsible for its management:

(i) act independently from any market interest; and

(ii) do not seek or take direct instructions from any government or other public or private entity when carrying out the regulatory tasks. …’

8. Article 40 of Directive 2009/73, entitled ‘General objectives of the regulatory authority’, provides:

‘In carrying out the regulatory tasks specified in this Directive, the regulatory authority shall take all reasonable measures in pursuit of the following objectives within the framework of their duties and powers as laid down in Article 41, in close consultation with other relevant national authorities, including competition authorities, as appropriate, and without prejudice to their competencies:

…

(f) ensuring that system operators and system users are granted appropriate incentives, in both the short and the long term, to increase efficiencies in system performance and foster market integration;

…’

9. Article 41 of that directive, entitled ‘Duties and powers of the regulatory authority’, is worded as follows:

‘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;

…

(n) monitoring and reviewing the access conditions to storage, linepack and other ancillary services as provided for in Article 33. In the event that the access regime to storage is defined according to Article 33(3), that task shall exclude the reviewing of tariffs;

…

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. Those tariffs or methodologies shall allow the necessary investments in the networks and LNG facilities to be carried out in a manner allowing those investments to ensure the viability of the networks and LNG facilities;

…

8. In fixing or approving the tariffs or methodologies and the balancing services, the regulatory authorities shall ensure that transmission and distribution system operators are granted appropriate incentive, over both the short and long term, to increase efficiencies, foster market integration and security of supply and support the related research activities.

…

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.

…’

2. Regulation No 715/2009

10. Recitals 7 and 8 of Regulation No 715/2009 state:

‘(7) It is necessary to specify the criteria according to which tariffs for access to the network are determined, in order to ensure that they fully comply with the principle of non-discrimination and the needs of a well-functioning internal market and take fully into account the need for system integrity 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 appropriate return on investments, and, where appropriate, taking account of the benchmarking of tariffs by the regulatory authorities.

(8) In calculating tariffs for access to networks, it is important to take account of the actual costs incurred, in so far as such costs correspond to those of an efficient and structurally comparable network operator, and are transparent, as well as of the need to...