Opinion of Advocate General Rantos delivered on 29 September 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:743
• Date: 29 September 2022
• Celex Number: 62021CC0394
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 29 September 2022 (1)

Case C‑394/21

Bursa Română de Mărfuri SA

v

Autoritatea Naţională de Reglementare în domeniul Energiei (ANRE)

intervener:

Federaţia Europeană a Comercianţilor de Energie

(Request for a preliminary ruling from the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania)),

(Reference for a preliminary ruling – Electricity market – Regulation (EU) 2019/943 – Directive (EU) 2019/944 – Regulation (EU) 2015/1222 – National legislation providing for a single designated electricity market operator)

Introduction

1. This request for a preliminary ruling has been made by the Curtea de Apel București (Court of Appeal, Bucharest, Romania) in proceedings between Bursa Română de Mărfuri SA (‘BRM’) and the Autoritatea Naţională de Reglementare în domeniul Energiei (ANRE) (National Energy Sector Regulatory Authority, Romania; ‘ANRE’) in connection with the latter’s refusal to grant BRM a licence to organise and operate centralised electricity markets.

2. The questions submitted for a preliminary ruling which will be considered in this targeted Opinion concern, first, whether Regulation (EU) 2019/943, (2) interpreted in the light of Directive (EU) 2019/944, (3) prohibits Member States from issuing a single licence to organise and operate electricity markets and requires them to bring an end to an existing legal monopoly in that field, and, second, whether the principles of free competition laid down in that regulation apply to the electricity market operator, having regard also to the concept of ‘electricity markets’ defined in that regulation by reference to that directive.

Legal context

European Union law

Regulation 2019/943

3. Article 1 of Regulation 2019/943, entitled ‘Subject matter and scope’, provides:

‘This Regulation aims to:

…

(b) set fundamental principles for well-functioning, integrated electricity markets, which allow all resource providers and electricity customers non-discriminatory market access, empower consumers, ensure competitiveness on the global market as well as demand response, energy storage and energy efficiency, and facilitate aggregation of distributed demand and supply, and enable market and sectoral integration and market-based remuneration of electricity generated from renewable sources;

(c) set fair rules for cross-border exchanges in electricity, thus enhancing competition within the internal market for electricity, taking into account the particular characteristics of national and regional markets …;

…’

4. Article 2 of that regulation contains the following definitions:

‘The following definitions apply:

…

(7) “market operator” means an entity that provides a service whereby the offers to sell electricity are matched with bids to buy electricity;

(8) “nominated electricity market operator” or “NEMO” ^[(4)^] means a market operator designated by the competent authority to carry out tasks related to single day-ahead or single intraday coupling;

…

(25) “market participant” means a natural or legal person who buys, sells or generates electricity, who is engaged in aggregation or who is an operator of demand response or energy storage services, including through the placing of orders to trade, in one or more electricity markets, including in balancing energy markets;

…

(40) “electricity markets” means electricity markets as defined in point (9) of Article 2 of [Directive 2019/944];

…’

5. Article 3 of Regulation 2019/943, entitled ‘Principles regarding the operation of electricity markets’, states:

‘Member States, regulatory authorities, transmission system operators, distribution system operators, market operators and delegated operators shall ensure that electricity markets are operated in accordance with the following principles:

(a) prices shall be formed on the basis of demand and supply;

(b) market rules shall encourage free price formation and shall avoid actions which prevent price formation on the basis of demand and supply;

(c) market rules shall facilitate the development of more flexible generation, sustainable low carbon generation, and more flexible demand;

(d) customers shall be enabled to benefit from market opportunities and increased competition on retail markets and shall be empowered to act as market participants in the energy market and the energy transition;

…

(h) barriers to cross-border electricity flows between bidding zones or Member States and cross-border transactions on electricity markets and related services markets shall be progressively removed;

…

(o) in order to allow market participants to be protected against price volatility risks on a market basis, and mitigate uncertainty on future returns on investment, long-term hedging products shall be tradable on exchanges in a transparent manner and long-term electricity supply contracts shall be negotiable over the counter, subject to compliance with Union competition law;

…’

6. Article 10 of that regulation, entitled ‘Technical bidding limits’, provides in paragraphs 4 and 5:

‘4. Regulatory authorities or … designated competent authorities … shall identify policies and measures applied within their territory that could contribute to indirectly restricting wholesale price formation, including limiting bids relating to the activation of balancing energy, capacity mechanisms, measures by the transmission system operators, measures intended to challenge market outcomes, or to prevent the abuse of dominant positions or inefficiently defined bidding zones.

5. Where a regulatory authority or designated competent authority has identified a policy or measure which could serve to restrict wholesale price formation it shall take all appropriate actions to eliminate or, if not possible, to mitigate the impact of that policy or measure on bidding behaviour. …’

Directive 2019/944

7. Article 2 of Directive 2019/944 contains the following definition:

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

…

(9) “electricity markets” means markets for electricity, including over-the-counter markets and electricity exchanges, markets for the trading of energy, capacity, balancing and ancillary services in all timeframes, including forward, day-ahead and intraday markets;

…’

8. In accordance with Article 72 of Directive 2019/944, that directive repealed and replaced Directive 2009/72/EC (5) with effect from 1 January 2021, with most of the provisions of that new directive applying from that date, under Article 73 thereof.

Regulation (EU) 2015/1222

9. Article 4 of Regulation (EU) 2015/1222, (6) entitled ‘NEMOs designation and revocation of the designation’, provides in paragraph 1:

‘Each Member State electrically connected to a bidding zone in another Member State shall ensure that one or more NEMOs are designated … to perform the single day-ahead and/or intraday coupling. …’

10. Article 5 of that regulation, entitled ‘NEMOs designation in case of a national legal monopoly for trading services’, provides:

‘1. If a national legal monopoly for day-ahead and intraday trading services which excludes the designation of more than one NEMO already exists in a Member State or Member State’s bidding zone at the time of the entry into force of this Regulation, the Member State concerned must notify the Commission within two months after entry into force of this regulation and may refuse the designation of more than one NEMO per bidding zone.

…

2. For the purposes of this regulation, a national legal monopoly is deemed to exist where national law expressly provides that no more than one entity within a Member State or Member State bidding zone can carry out day-ahead and intraday trading services.

3. Two years after the entry into force of this Regulation, the...