Romaqua Group SA v Societatea Națională Apele Minerale and Agenția Națională pentru Resurse Minerale.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:694
• Date: 21 September 2023
• Docket Number: C-510/22
• Celex Number: 62022CJ0510
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Ninth Chamber)

21 September 2023 (*)

(Reference for a preliminary ruling – Articles 102 and 106 TFEU – Public undertakings – Freedom to conduct a business – Freedom of establishment – Undertaking that is wholly owned by a Member State and holds exclusive concessions for the exploitation of natural mineral water following an award without a competitive tendering procedure – National legislation allowing for the unlimited extension of the concession)

In Case C‑510/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania), made by decision of 14 June 2022, received at the Court on 28 July 2022, in the proceedings

Romaqua Group SA

v

Societatea Națională a Apelor Minerale SA,

Agenția Națională pentru Resurse Minerale,

THE COURT (Ninth Chamber),

composed of L.S. Rossi, President of the Chamber, J.‑C. Bonichot (Rapporteur) and S. Rodin, Judges,

Advocate General: A.M. Collins,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Romaqua Group SA, by L. Retegan and S. Tîrnoveanu, avocats,

– the Romanian Government, by M. Chicu and E. Gane, acting as Agents,

– the European Commission, by L. Armati, M. Mataija and I. Rogalski, 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 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Articles 49, 102, 106 and 119 TFEU and Article 3 of Directive 2009/54/EC of the European Parliament and of the Council of 18 June 2009 on the exploitation and marketing of natural mineral waters (OJ 2009 L 164, p. 45).

2 The request has been made in proceedings between Romaqua Group SA, on the one hand, and the Societatea Națională a Apelor Minerale SA (National Company Responsible for Mineral Waters, Romania) (‘the SNAM’) and the Agenția Națională pentru Resurse Minerale (National Agency for Mineral Resources, Romania) (‘the ANRM’), on the other, concerning the rejection of the applicant’s request for the organisation of a public tendering procedure for the award of two concessions for the exploitation of mineral waters.

Legal context

European Union law

3 Article 3 of Directive 2009/54 provides:

‘Natural mineral water springs may be exploited and their waters bottled only in accordance with Annex II.’

Romanian law

4 Article 40(1) of Legea nr. 219 privind regimul concesiunilor (Law No 219 on the rules governing concessions), of 25 November 1998 (Monitorul Oficial al României, No 459 of 30 November 1998), in the version applicable to the facts in the main proceedings, provided:

‘Assets that are the public or private property of the State, a county, a city or a municipality, as well as public activities and services of national or local interest, shall be allocated directly, by means of a concession contract, to commercial companies or national companies created through the reorganisation of autonomous authorities which were responsible for the management of those assets, activities or services. The concession contract shall be concluded with the competent concession-granting authority for a period which is to be determined by decision of the Government or of the county or municipal council of the place where the commercial company concerned was created.’

5 Article 46 of Legea minelor nr. 61 (Mining Law No 61), of 5 March 1998 (Monitorul Oficial al României, Part I, No 113 of 16 March 1998), provided:

‘1. Public institutions, national mining companies and commercial companies shall continue their activities only at those sites which are under their management and at which, on the date of publication of this Law, they are carrying out authorised exploration, development or exploitation works.

2. Within 90 days of the date of the entry into force of this Law, public institutions, national mining companies and commercial companies which carry on mining activities shall complete the act of demarcating the exploration, development and exploitation perimeters of the sites referred to in paragraph 1 and shall apply to the competent authority for these to be assigned to them by way of management or concession, in accordance with this Law.’

6 Mining Law No 61 of 5 March 1998 was repealed and replaced by Legea minelor nr. 85 (Mining Law No 85), of 18 March 2003 (Monitorul Oficial al României, Part I, No 197 of 27 March 2003). Article 20(2) of the latter law, as amended and subsequently supplemented (‘Mining Law No 85/2003’), states:

‘Exploitation licences shall be granted for a maximum period of 20 years, with a right of extension for successive periods of 5 years.’

7 Article 32(1) of the Normele pentru aplicarea Legii minelor nr. 85/2003 din 14.10.2003 (detailed rules for the application of Mining Law No 85/2003 of 14 October 2003), as approved by Hotărârea Guvernului nr. 1208/2003 (Government Decision No 1208/2003, Monitorul Oficial al României, Part I, No 772 of 4 November 2003), provides:

‘The holder of an exploitation licence may request the extension of its period of validity, within the limit of the assigned perimeter, by presenting the ANRM with the documents referred to in Article 20(1) of Mining Law [No 85/2003].’

The dispute in the main proceedings and the questions referred for a preliminary ruling

8 In 1997, the Romanian Government created the SNAM to succeed the Regia Autonomă a Apelor Minerale din România (Autonomous Authority Responsible for the Mineral Waters of Romania), which was dissolved.

9 In 1999, the Romanian Government approved the direct award by the ANRM to the SNAM of the concession for the exploitation of all the mineral water resources exploited in Romania for a period of 20 years.

10 By judgment No 136/2001 of 3 May 2001, the Curtea Constituțională (Constitutional Court, Romania) held that the...