European Commission v Moravia Gas Storage a.s..

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Date: 11 December 2014

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 11 December 2014 (1 )

Case C‑596/13 P

European Commission

v

Moravia Gas Storage a.s.

‛Appeals — Internal market in natural gas — Directive 2003/55/EC and Directive 2009/73/EC — Delimitation of the temporal scope of both directives — Prohibition on retroactivity — Definitively established situations and already pending procedures — Immediate application of new procedural rules in pending procedures — Underground natural gas storage facilities — Temporary exemption from the obligation on natural gas undertakings to provide third-party access to major new gas infrastructures — Commission Decision by which a national authority is required to withdraw its exemption’

I – Introduction

1. The present appeal proceedings offer the Court the opportunity to refine its case-law on the temporal applicability of new legislation.

2. Which rules should be applied if — in the course of an administrative procedure pending before the European Commission — the directive applicable up to that point is replaced by another and, as a result, the legal situation is altered in a number of respects? Should the new directive be applied immediately or should the view be taken that the pending administrative procedure must still be concluded under the rules of the former directive?

3. Those questions are raised in the present case against the background of the provisions of EU law applicable to the internal market in natural gas. In 2011, the Czech authorities exercised the option to grant an exemption from certain provisions which normally have to be observed on the internal market in natural gas to an undertaking that wanted to construct a new underground natural gas storage facility. In accordance with EU requirements, they submitted their exemption decision to the Commission for review. Shortly after the start of the administrative procedure at the Commission, Directive 2003/55/EC (2) (also known as the ’Second Gas Directive’) was replaced by Directive 2009/73/EC (3) (also known as the ‘Third Gas Directive’), giving rise to a number of amendments to the procedural rules to be applied.

4. Following that replacement, the Commission immediately applied the new directive in the present case. However, in the proceedings at first instance, by judgment of 6 September 2013, (4) the General Court ruled that the procedure should have been continued and concluded under the former directive. The question of which of the two points of view should be given preference is of crucial practical significance to the widest variety of branches of EU law and is not limited to the specific facts of this case.

II – Legal context

5. Directive 2003/55 was repealed from 3 March 2011 and replaced by Directive 2009/73. By that same date, the Member States were required to transpose Directive 2009/73 into their national law. (5)

6. Under both Directive 2003/55 and Directive 2009/73, new gas infrastructures — including storage facilities — must, in principle, be made accessible to third parties in return for remuneration. (6) That access must be guaranteed in accordance with objective, transparent and non-discriminatory criteria. (7)

7. However, to prevent necessary investment from being unprofitable, third parties may — under certain circumstances and for a limited period of time — be refused access to major new gas infrastructures, including storage facilities. (8)

8. The exemption required to refuse access to third parties is granted by the national authorities. Exemptions of this kind must be notified to the Commission without delay. (9) The Commission examines whether the exemption concerned is consistent with the requirements laid down in EU law and may request that the national authorities amend or withdraw the exemption decision within a period of time prescribed in the relevant directive. (10)

9. The part of the procedure to be carried out by the Commission was initially governed by the following provisions laid down in Article 22(4) of Directive 2003/55: ‘The exemption decision shall be notified, without delay, by the competent authority to the Commission, together with all the relevant information with respect to the decision. … … Within two months after receiving a notification, the Commission may request that the regulatory authority or the Member State concerned amend or withdraw the decision to grant an exemption. The two month period may be extended by one additional month where additional information is sought by the Commission. If the regulatory authority or Member State concerned does not comply with the request within a period of four weeks, a final decision shall be taken in accordance with the procedure referred to in Article 30(2). The Commission shall preserve the confidentiality of commercially sensitive information.’

10. The successor provisions to those procedural rules can be found in Article 36(8) and (9) of Directive 2009/73: ‘(8) The regulatory authority shall transmit to the Commission, without delay, a copy of every request for exemption as of its receipt. The decision shall be notified, without delay, by the competent authority to the Commission, together with all the relevant information with respect to the decision. … … (9) Within a period of two months from the day following the receipt of a notification, the Commission may take a decision requiring the regulatory authority to amend or withdraw the decision to grant an exemption. That two-month period may be extended by an additional period of two months where further information is sought by the Commission. That additional period shall begin on the day following the receipt of the complete information. The initial two-month period may also be extended with the consent of both the Commission and the regulatory authority. Where the requested information is not provided within the period set out in the request, the notification shall be deemed to be withdrawn unless, before the expiry of that period, either the period has been extended with the consent of both the Commission and the regulatory authority, or the regulatory authority, in a duly reasoned statement, has informed the Commission that it considers the notification to be complete. The regulatory authority shall comply with the Commission decision to amend or withdraw the exemption decision within a period of one month and shall inform the Commission accordingly. The Commission shall preserve the confidentiality of commercially sensitive information. …’

III – Background to the dispute and procedure before the General Court

11. On 14 April 2009, the undertaking Globula, which in the meantime has changed its name to Moravia Gas Storage (MGS), (11) applied to the Czech Ministry of Industry and Trade (12) for authorisation to build an underground gas storage facility at Dambořice (Czech Republic). In connection with that application, the undertaking also applied for a temporary exemption from the obligation to provide negotiated third-party access for the entire new capacity of the underground gas storage facility.

12. By decision of 26 October 2010, the Ministry authorised the construction of the underground gas storage facility and temporarily exempted MGS from the obligation to provide negotiated third-party access for 90% of the new storage capacity. The exemption was to apply for 15 years, starting from the effective date of the authorisation of use.

13. That exemption decision was notified to the Commission by letter of the Ministry of 11 February 2011, received on 18 February 2011.

14. On 15 April 2011, the Commission asked the Ministry for additional information, indicating to it that, if the Commission were to ask it to amend or withdraw the exemption decision, it would do so by 18 June 2011. The Ministry responded on 29 April 2011, within the time-limit set by the Commission.

15. On 13 May 2011, the Commission sent the Ministry a second request for additional information, again indicating to it that, if the Commission were to ask it to amend or withdraw the exemption decision, it would do so by 18 June 2011. The Ministry responded on 20 May 2011, within the time-limit set by the Commission.

16. By letter of 23 June 2011, signed by the Commissioner responsible for Energy, the Commission informed the Ministry that the Commission would adopt a formal decision by 29 June 2011.

17. On 27 June 2011, on the basis of Directive 2009/73, the Commission adopted the contested decision, by which it ordered the Czech Republic to withdraw the exemption. The contested decision was notified to the Czech Republic on 28 June 2011.

18. By document of 26 August 2011, MGS (13) brought an action for annulment before the General Court against the contested decision. The Czech Republic was granted leave to intervene in support of the applicant in the first-instance proceedings.

19. In its judgment of 6 September 2013, the General Court addressed only the first of three pleas in law on which MGS had based its action. That plea in law, alleging errors in the determination of the applicable law, (14) was accepted by the General Court and, as a result, the contested decision was annulled because — in the view of the General Court — it should have been based not on Directive 2009/73 but on Directive 2003/55. (15) As reasons for its ruling, the General Court stated, in essence, that the procedural and substantive changes introduced by Article 36 of Directive 2009/73 formed ‘an indivisible whole’, to which...