Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 22 May 2019(1)

Case C‑236/18

GRDF SA

v

Eni Gas & Power France SA,

Direct énergie,

Commission de régulation de l’énergie,

Procureur général près la cour d’appel de Paris

(Request for a preliminary ruling from the Cour de cassation (Court of Cassation, France))

(Directive 2009/73/EC concerning common rules for the internal market in natural gas — Obligations of distribution system operators —Article 41 of Directive 2009/73 — Effect in time of decisions of dispute settlement authorities — Principles of effectiveness and equivalence — Legal certainty and legitimate expectations)

1.        This order for reference from the Cour de Cassation (Court of Cassation, France) (‘the referring court’) concerns the powers of dispute settlement authorities under Article 41 of Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC. (2) In essence, the referring court queries the point in time from which a remedy proposed by a dispute settlement authority for settling a dispute arising within the parameters of Directive 2009/73 can operate. Can a remedial decision of a dispute settlement authority apply to the whole of the contractual period to which that dispute relates, or should that period be diminished?

2.        This question arises in a context in which a contract between a distribution system operator, GRDF, and a supplier, Direct énergie, was inconsistent with Directive 2009/73 over a protracted period of time. This was so because the contract allowed the cost of unpaid debt of final customers to be borne by the supplier, Direct énergie, when it should have been borne by the distribution system operator, GRDF. The answer provided to the question referred is therefore necessary to determine the scale of the financial consequences for GRDF, in its contractual relations with Direct énergie, arising from this wrong. All this occurs in the discrete context of so called ‘single contracts’ for both the supply and distribution of natural gas which are struck in France with consumers and professional clientele operating on a small scale.

I.      Legal framework

A.      EU law

3.        Recitals 3, 6, 25, 30, 33 and 48 of Directive 2009/73 state:

‘(3)      The freedoms which the Treaty guarantees the citizens of the Union — inter alia, the free movement of goods, the freedom of establishment and the freedom to provide services — are achievable only in a fully open market, which enables all consumers freely to choose their suppliers and all suppliers freely to deliver to their customers.

…

(6)      Without effective separation of networks from activities of production and supply (effective unbundling), there is a risk of discrimination not only in the operation of the network but also in the incentives for vertically integrated undertakings to invest adequately in their networks.

…

(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. …

…

(33)      Energy regulators should have the power to issue binding decisions in relation to natural gas undertakings and to impose effective, proportionate and dissuasive penalties on natural gas undertakings which fail to comply with their obligations or to propose that a competent court impose such penalties on them. Energy regulators should also be granted the power to decide, irrespective of the application of competition rules, on appropriate measures ensuring customer benefits through the promotion of effective competition necessary for the proper functioning of the internal market in natural gas. The establishment of gas-release programmes is one of the possible measures that can be used to promote effective competition and ensure the proper functioning of the market. Energy regulators should also be granted the powers to contribute to ensuring high standards of public service in compliance with market opening, to the protection of vulnerable customers, and to the full effectiveness of consumer protection measures. Those provisions should be without prejudice to both the Commission’s powers concerning the application of competition rules including the examination of mergers with a Community dimension, and the rules on the internal market such as the free movement of capital. The independent body to which a party affected by the decision of a national regulator has a right to appeal could be a court or other tribunal empowered to conduct a judicial review.

…

(48)      Consumer interests should be at the heart of this Directive and quality of service should be a central responsibility of natural gas undertakings. Existing rights of consumers need to be strengthened and guaranteed, and should include greater transparency. Consumer protection should ensure that all consumers in the wider remit of the Community benefit from a competitive market. Consumer rights should be enforced by Member States or, where a Member State has so provided, the regulatory authorities.’

4.        Article 32 of Directive 2009/73 is entitled ‘Third Party Access’. Its first paragraph states:

‘Member States shall ensure the implementation of a system of third party access to the transmission and distribution system, and LNG facilities based on published tariffs, applicable to all eligible customers, including supply undertakings, and applied objectively and without discrimination between system users. Member States shall ensure that those tariffs, or the methodologies underlying their calculation are approved prior to their entry into force in accordance with Article 41 by a regulatory authority referred to in Article 39(1) and that those tariffs — and the methodologies, where only methodologies are approved — are published prior to their entry into force.’

5.        Article 40 of Directive 2009/73 is entitled ‘General objectives of the regulatory authority’. It states:

‘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:

(a)      promoting, in close cooperation with the Agency, regulatory authorities of other Member States and the Commission, a competitive, secure and environmentally sustainable internal market in natural gas within the Community, and effective market opening for all customers and suppliers in the Community, and ensuring appropriate conditions for the effective and reliable operation of gas networks, taking into account long-term objectives;

…

(e)      facilitating access to the network for new production capacity, in particular removing barriers that could prevent access for new market entrants and of gas from renewable energy sources;

…’

6.        Article 41 is entitled ‘Duties and powers of the regulatory authority’. It states that:

‘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;

(b)      ensuring compliance of transmission and distribution system operators, and where relevant, system owners, as well as of any natural gas undertakings, with their obligations under this Directive and other relevant Community legislation, including as regards cross-border issues;

…

(f)      ensuring that there are no cross-subsidies between transmission, distribution, storage, LNG and supply activities;

…

4.      Member States shall ensure that regulatory authorities are granted the powers enabling them to carry out the duties referred to in paragraphs 1, 3 and 6 in an efficient and expeditious manner. For this purpose, the regulatory authority shall have at least the following powers:

(a)      to issue binding decisions on natural gas undertakings;

…

(d)      to impose effective, proportionate and dissuasive penalties on natural gas undertakings not complying with their obligations under this Directive or any relevant legally binding decisions of the regulatory authority or of the Agency, or to propose to a competent court to impose such penalties. This shall include the power to impose or propose the imposition of penalties up to 10% of the annual turnover of the transmission system operator or of up to 10% of the annual turnover of the vertically integrated undertaking on the transmission system operator or on the vertically integrated undertaking, as the case may be, for non-compliance with their respective obligations pursuant to this Directive; …

…

10.      Regulatory authorities shall have the authority to require transmission, storage, LNG and distribution system operators, if necessary, to modify the terms and conditions, including tariffs and methodologies referred to in this Article, to ensure that they are proportionate and applied in a non-discriminatory manner. …

11.      Any party having a complaint against a transmission, storage, LNG or distribution system operator in relation to that operator’s obligations under this Directive may refer the complaint to the regulatory authority which, acting as dispute settlement authority, shall issue a decision within a period of two months after receipt of the complaint. That period may be extended by two months where additional information is sought by the regulatory authorities. That extended period may be further extended with the agreement of the complainant. The regulatory authority’s decision shall have binding effect unless and until overruled on appeal.

…’

7.        Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005 (3) states as follows in Article 13(1):

‘Tariffs, or the methodologies used to calculate them, applied by the transmission system operators and approved by the regulatory authorities pursuant to Article 41(6) of Directive 2009/73/EC, as well as tariffs published pursuant to Article 32(1) of that Directive, shall be transparent, take into account the need for system integrity and its improvement and reflect the actual costs incurred, insofar as such costs correspond to those of an efficient and structurally comparable network operator and are transparent, whilst including an appropriate return on investments, and, where appropriate, taking account of the benchmarking of tariffs by the regulatory authorities. Tariffs, or the methodologies used to calculate them, shall be applied in a non-discriminatory manner.

Member States may decide that tariffs may also be determined through market-based arrangements, such as auctions, provided that such arrangements and the revenues arising therefrom are approved by the regulatory authority.

Tariffs, or the methodologies used to calculate them, shall facilitate efficient gas trade and competition, while at the same time avoiding cross-subsidies between network users and providing incentives for investment and maintaining or creating interoperability for transmission networks.

Tariffs for network users shall be non-discriminatory and set separately for every entry point into or exit point out of the transmission system. Cost-allocation mechanisms and rate setting methodology regarding entry points and exit points shall be approved by the national regulatory authorities. By 3 September 2011, the Member States shall ensure that, after a transitional period, network charges shall not be calculated on the basis of contract paths.’

B.      Member State law

8.        According to the referring Court, Article L. 134‑20 of the code de l’énergie (Energy Code) in the version applicable in the relevant period states:

‘The decision of the committee, which may be combined with penalties, shall contain a statement of reasons and shall specify the technical and financial terms imposed upon settlement of the dispute to govern, where applicable, access to or use of the networks, works and installations referred to in Article L. 134-19. Where it is necessary in order to settle the dispute, the committee may determine, in an objective, transparent, non-discriminatory and proportionate manner, the arrangements for access to such networks, works and installations or the conditions applicable to their use.’ (4)

II.    The facts, the dispute in the main proceedings, and the question referred

9.        The predecessors to Direct énergie, the second respondent in the main proceedings, entered into two contracts for the transmission of gas through the French natural gas distribution system on, respectively, 21 June 2005 and 21 November 2008. These contracts were entered into with the distribution system operator GRDF, who is the Appellant in the main proceedings.

10.      On 22 July 2013, Direct énergie sought a decision from the Committee for the Settlement of Disputes and for Penalties (‘Cordis’), the dispute settlement authority referred to in Article 41(11) of Directive 2009/73, of the Energy Regulatory Commission (‘the CRE’), the enforcement authority in France pursuant to Articles 40 and 41 of Directive 2009/73. The decision Direct énergie sought related to financial burdens it had borne, since the entry into force of both of the above mentioned contracts, which should have been borne by GRDF (see points 1 and 2 above). Eni Gas & Power France, the first respondent, was also involved in these proceedings.

11.      Cordis issued a decision on 19 September 2014. According to the order for reference, pursuant to this decision GRDF was to provide Direct énergie with a new contract for transmission of gas through the natural gas distribution system within a period of six months running from notification of the decision, such contract to be in conformity with the principle that the supplier Direct énergie cannot be responsible for the non-payment of sums owed to GRDF by the end customer. This was to cover the whole of the contractual period.

12.      This decision was appealed by Direct énergie and Eni Gas & Power France to the cour d’appel de Paris (Court of Appeal, Paris, France). It confirmed this decision on 2 June 2016, and added, inter alia, that;

–        GRDF was to propose amendments by way of riders to the contracts for access to the gas system between GRDF and Direct énergie. Those riders were to provide that clauses which made the benefit of the relevant contract conditional upon the supplier Direct énergie agreeing to act as agent for GRDF, and requiring it to provide services for which GRDF was responsible, in circumstances in which GRDF was unable to negotiate the price at which or terms on which those services were provided, were to be deemed never to have been incorporated into the contract.

–        Fair and proper remuneration was to be paid to Direct énergie, having regard to the costs avoided by GRDF in relation to services provided by Direct Energy to customers on GRDF’s behalf.

13.      GRDF appealed this ruling to the referring court, objecting to what it viewed as an order empowering Cordis to make retroactive decisions resulting in retroactive amendment of contractual terms. Direct énergie contests this, principally on the basis of the imperative of the effectiveness of EU law. The referring court notes that the principle of legal certainty is enshrined in the judgment of the Court of 13 March 2008, Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Others, (5)which the referring court states may take precedence over the effectiveness of EU law.

14.      That being so, the referring Court sent the following question by way of preliminary ruling.

‘Is Directive 2009/73 …, and in particular Article 41(11) thereof, to be interpreted as requiring that a regulatory authority, when settling a dispute, must have power to issue a decision which applies to the whole of the period to which the dispute relates, regardless of the date on which the dispute arose between the parties, in particular by drawing the consequences of the non-conformity of a contract with the provisions of the directive by means of a decision taking effect as regards the whole of the contractual period?’

15.      Written observations were filed with the Court by GRDF, Direct énergie, Eni Gas & Power France, the French Government, and the European Commission. All participated in the hearing which took place on 6 March 2019.

III. Summary of written observations

16.      For GRDF, the silence of the European legislature points to a desire not to allow bodies like Cordis to make retroactive decisions. (6) GRDF also argues that the temporal effect of decisions of organisations like Cordis is a question of natural procedural autonomy. (7)

17.      In the absence of a rule of Member State law that is applicable ratione temporis to the main proceedings, (8) any retroactivity of the decisions of Cordis is to be analysed by reference to the principles of equivalence and effectiveness, non-retroactivity, legal certainty, and legitimate expectations. None of these support the retroactivity of Cordis’ decisions. GRDF also contends that decisions taken by Cordis are administrative in nature and not judicial.

18.      GRDF argues that the temporal effect of Cordis decisions which it is supporting complies with the principle of equivalence. GRDF further states that the principle of effectiveness has to be interpreted in the light of Article 34(3) of Directive 2009/73, which emphasises expeditious settlement. The absence of retroactive effect of Cordis decisions does not undermine this. (9)

19.      With respect to the principle of legal certainty and legitimate expectations, GRDF argues, inter alia, that the principle of non-retroactivity of administrative decisions applies when Member State authorities take administrative decisions that fall within the scope of EU law. (10) The principle of legal certainty and legitimate expectations requires rules to be clear and precise, (11) and their application foreseeable, and retroactive remedies are inconsistent with this or consumer protection.

20.      For GRDF, affording Cordis decisions with retroactive effect would call into question the legal stability of the natural gas sector, and would entail financial consequences, so that GRDF would have to raise the cost of its services, which would have to be recovered in the final price of natural gas paid by the customer.

21.      Eni Gas & Power France argue that the role of Cordis cannot be fundamentally different from that of a court, given that its role is to provide protection that is more efficient and quicker than that provided by a court, not less. The principle of effectiveness has the status of being an essential provision of EU law, (12) so that internal Member State procedures ensure that decisions of Cordis are to have full legal effect. It also contends that no breach of the principle of equivalence arises, while the principle of legal certainty is inherently flexible, and does not afford an unconditional guarantee that a given legal situation will not change. Thus, European Union law requires the dispute settlement authority to have the power to issue a decision covering the whole of the period of the wrong.

22.      Direct énergie agrees that if Cordis decisions did not have effect from the date of contractual commitments that are unlawful, then litigants would systematically prefer the courts, where such a remedy is available, resulting in asymmetry in remedies and inconsistency with the objective of expeditious remedies provided for under Directive 2009/73. (13) Directive 2009/73 would be deprived of its effet utile, and in this regard Direct énergie calls on the Court to apply by analogy jurisprudence developed in the context of consumer protection with respect to abusive contractual clauses, and equal treatment law. (14)

23.      Direct énergie also argues that, pursuant to Directive 2009/73, national regulatory authorities are to have broad powers, set out more specifically in, Article 41(4)(d).

24.      Direct énergie recalls that the principle of legal certainty can only be invoked when an administrative act is manifestly contrary to EU law, even if it has become definitive. (15) It adds that not affording Cordis decisions with retroactive effect would validate practices that are contrary to EU law, and Direct énergie rejects GRDF’s arguments with respect to destabilisation of the market. (16) The primacy of EU law requires inconsistent contractual principles to be set aside, as does the requirement for effective, proportionate and dissuasive remedies.

25.      Finally, Direct énergie argues that the referring court’s reliance on Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Others (17)is misplaced.

26.      The French Government underscores that the main proceedings concern only so-called ‘single contracts’, in which household consumers have struck one contract for both the supply and distribution of gas. Suppliers like Direct énergie and Eni Gas & Power France have concluded transmission contracts with GRDF, with a view to then concluding single contracts with consumers. Transfer of sums received under these contracts for distribution are to be forwarded to GRDF. These contracts resulted therefore in the cost of bills unpaid by the consumer being borne by the suppliers Direct énergie and Eni Gas & Power France, rather than the distribution system operator GRDF. This is the context of the dispute.

27.      The French Government calls on the Court to reformulate the question referred, objecting in particular to whether Cordis ‘must have power to issue a decision which applies to the whole of the period to which the dispute relates’ under EU law. If the answer to this is in the negative, no useful response is guaranteed for the referring court, because it will not address the question of whether such a temporal scope is allowed under EU law, without imposing it. (18) It therefore proposes reformulating the question referred, asking whether EU law precludes such decisions from addressing a temporal period covering the whole of the contractual period in dispute.

28.      The French Government argues that both the effet utile of Directive 2009/73 and the principle of effectiveness point to a negative answer to the question reformulated in this way. This is subject, however, to respect for the principles of legal certainty, proportionality and respect for fundamental rights under the EU Charter of Fundamental Rights, which is for the referring court to decide.

29.      According to the French Government, if the question is not reformulated, a negative answer should be given to it. In the absence of harmonisation, temporal effects fall within the margin of appreciation of the Member States by virtue of their scope for implementing directives under Article 288 TFEU, and their national procedural autonomy, the latter being subject to the principles of equivalence and effectiveness, and other general principles of EU law. The French Government refers, inter alia, to a judgment of the Court in the field of VAT law,(19) and one in the field of the repayment of sums unduly paid, (20) to illustrate how the principle of legal certainty can operate to place a limit on temporal effects. However, it is for the Member States to work out how to reconcile these principles. (21) Assessment of compliance with the principles of equivalence and effectiveness is for the referring court. (22)

30.      The Commission recalls that bodies like Cordis are independent administrative authorities which have powers and functions that are very close to competition authorities. When authorities like Cordis take decisions on the basis of Article 41(11) of Directive 2009/73, the effectiveness of their decisions must be comparable to those of a court, and notably concerning their application ratione temporis. In principal, such decisions take effect ex tunc, but the legislator or judge can derogate from this, on the basis that balancing the imperatives of effectiveness and primacy of the law, against legal certainty and legitimate expectations, requires a limitation with respect to time.

31.      Thus, by virtue of the principle of sincere cooperation and the effectiveness and primacy of EU law, all of the unlawful consequences are to be erased of a contract the terms of which are not in conformity with the requirements laid down in Directive 2009/73. Nevertheless, the Court itself will limit the temporal effect of its rulings under the imperative of legal certainty.  However, this is exceptional, (23) and must be strictly limited and justified by overriding reasons of legal certainty, taking all of the interests into account, both public and private. (24) The safeguarding of rights is also relevant. (25)

32.      Finally, the Commission refers to a judgment concerning energy tariffs and contractual relations established prior to the litigation. There the Court declined to adjust the temporal effects of its ruling. (26) The Commission takes the view that there is no risk in the main proceedings that would justify a temporal limitation. Thus, a regulatory authority like Cordis must have the power to take decisions that apply for the whole period concerned by the litigation, whatever the date on which the dispute between the parties commenced. This is in conformity with the spirit and the objectives of Directive 2009/73. If the effect of decisions of regulatory authorities like Cordis were limited in time, their efficiency for assuring the good functioning of the market and the development of a competitive gas market would be strongly diminished.

IV.    Analysis

A.      Preliminary observations

1.      Jurisdiction of the court

33.      I note at the outset that the order for reference does not explain in any detailed way why any identified provisions of Directive 2009/73 are relevant to resolving the substantive dispute between the parties, aside from the remedial provision. In a nutshell, it concerns whether the distribution system operator or the supplier of natural gas should carry the burden of unpaid final customer bills with respect to so called single contracts for distribution and supply of gas, and what is to occur once it is established that this burden is to be borne by the distribution system operator and not the supplier. The dispute more broadly is about client management services and the remuneration to be paid to suppliers for performing them on behalf of a distribution system operator.

34.      This is problematic, because Article 41(11) of Directive 2009/73 states that any ‘party having a complaint against a transmission, storage, LNG or distribution system operator in relation to that operator’s obligations under this Directive may refer the complaint to the regulatory authority’ (my emphasis). A remedial provision will fall to be interpreted by the Court, once it is established that it is relevant to an alleged substantive infringement of the directive concerned, (27) given that the European Union has no generalised competence over remedies outside of the fields in which it has substantive competence. More generally, it is for the referring court to explain the connection between the provisions of EU law referred to and the dispute at hand and their subject matter. (28)

35.      Oral submissions made on this point might be summarised as follows.

36.      GRDF argued that the service that comes into play in the dispute is the client management service for the end customer that is provided by the supplier on behalf of the distribution system operator, and this specific service is not provided for at all under Directive 2009/73. It is rather governed by French law, so that the main proceedings fall outside the material scope of Directive 2009/73.

37.      Eni Gas & Power France pointed out that Directive 2009/73 provides for common rules concerning the distribution and supply of gas to final customers. They referred to Article 1 of Directive 2009/73, defining subject matter and scope, and stated that the matters covered in the main proceedings were collecting the tariff for access to the distribution network, and the management of client services by the supplier on the part of the distribution system operator, The payment due for this service is at the heart of the dispute. That being so, it contended that the dispute falls within the scope of Directive 2009/73 because what is at issue is access to the network, and relationships of distribution and supply.

38.      Direct énergie argued that obligation of the distribution system operator under Directive 2009/73 is to ensure access to the network under Article 32 of Directive 2009/73, and this access is not to be discriminatory, with Article 35 setting out exceptions. Direct énergie contended that if a distribution system operator took the position that access would be denied to a supplier unless the supplier performed services for the distribution system operator, that would be a denial of access under Directive 2009/73. Reference was also made to obligations on the regulatory authority under Article 40, particularly with respect to maintaining competition.

39.      The oral submissions of France clarified matters. The agent for France stated that client management services that are performed in France by suppliers on behalf of distribution system operators like GRDF amount to a mode of accessing the network which has been put in place by the French legislature in implementation of Article 32 of Directive 2009/73 on third party access to the transmission and distribution system, with the single contract system it entails, respecting the free choice of customers in the context of suppliers which appears in recital 3 of Directive 2009/73.

40.      The Commission relied on the fact that the main proceedings pitted two suppliers of gas against one another and concerned distribution services, when GRDF is itself a distribution system operator, so that Directive 2009/73 was applicable.

41.      I have reached the conclusion that the main proceedings fall within the scope of Directive 2009/73, because the oral submissions summarised above create the necessary subject matter nexus between the substantive dispute arising between the parties, and Directive 2009/73. (29) In so doing, I have borne in mind the purposes of Directive 2009/73 (see point 3 above), its scope, (30) as defined in Article 1, and that the order for reference states in several places that the meaning of the term ‘distribution’ in Article 2(5) of Directive 2009/73 is relevant to the main proceedings, although no question was referred on this issue. The dispute is essentially about the tariffs applicable to services provided by a supplier as an agent for a distribution system operator. It therefore concerns the setting of tariffs and access to the network, both of which fall within the scope ratione materie of Directive 2009/73, and its relationship with Article 41(11).

2.      No reformulation of the question referred

42.      At the same time, I do not agree with arguments put forward by France to the effect that the question referred requires reformulation. The fact that the imperative word ‘must’, or as appears in the original version of the order for reference, ‘ils commandent qu’une autorité de régulation … ait le pouvoir’, has been employed with respect to the powers of a regulatory authority over the temporal effect of its decision, does not preclude the Court from supplying a more nuanced answer.

3.      The main proceedings do not concern retroactivity and partial inadmissibility of the question.

43.      Finally, contrary to arguments made by GRDF, I do not agree with GRDF that the main proceedings concern an instance in which Cordis is engaged in retroactive application of EU law.

44.      Under the established case-law of the Court, interpretations which, in the exercise of the jurisdiction conferred upon it by Article 267 TFEU, the Court gives to a rule of EU law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its entry into force. It follows that the rule as so interpreted may, and must, be applied by the courts to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that, in other respects, the conditions enabling an action relating to the application of that rule to be brought before the courts having jurisdiction are satisfied. (31)

45.      The Court has held that Directive 2009/73 is applicable ratione temporis from 3 March 2011, the end of the period allowed for its transposition under Article 54 of Directive 2009/73. (32)Thus, any interpretation of Article 41(11) of Directive 2009/73 given by the Court must apply from that date (3 March 2011). The remedial powers of Cordis, as the dispute settlement authority responsible under Article 41(11), must necessarily reach back to this date, subject to national procedural autonomy, which is in turn subject to the principles of effectiveness and equivalence, along with the text of Article 41(11) of Directive 2009/73, with its requirement for a decision to be issued, as an outer limit, within four months from receipt of a complaint.

46.      Can, however, Article 41(11) of Directive 2009/73 be relied on to support a power in the hands of Cordis to issue remedies that will take effect with respect to a period pre-dating 3 March 2011? This is important, because the contracts which are pertinent to the main proceedings were struck on 21 June 2005 and 21 November 2008.

47.      This question falls to be determined by interpretation of relevant terms of the predecessor directive, namely Directive 2003/55/EC, and whether Cordis assumes the role of dispute settlement authority under French law for the purposes of Directive 2003/55, which is a question for the Member State court to decide. However Directive 2009/73, with respect to which the referring court has requested interpretation, cannot support the issue of remedies by Cordis which are to take effect prior to 3 March 2011.

48.      Neither the order for reference nor the written observations provide information on the relationship between Cordis and Directive 2003/55. While I acknowledge that it has been stated in a judgment of the Court that Article 41 of Directive 2009/73 reproduces ‘in essence’ the contents of Article 25 of Directive 2003/55, (33) Directive 2003/55 is different from Directive 2009/73 in pertinent material respects.

49.      First, there is no recital in Directive 2003/55 that is analogous to recital 33, and its requirement for effective, proportionate, and dissuasive remedies (see further below points 54 to 57). Second, there is no provision similar to Article 41(17) of Directive 2009/7 in Directive 2003/55. Article 41(17) provides that ‘Member States shall ensure that suitable mechanisms exist at national level under which a party effected by a decision of a regulatory authority has a right of appeal to a body independent of the parties involved and of any government’. Third, the travaux préparatoires to Directive 2009/73 states that one of the objectives of the new Directive would be to strengthen the powers of regulatory authorities, including adding a power to impose dissuasive sanctions, thereby implying that sanctions would be different from those required by Directive 2003/55. (34) Thus, the question referred in inadmissible in so far as it refers to periods pre-dating 3 March 2011. (35)

50.      I will now answer the question referred on the basis of this premiss, and refer only to Directive 2009/73; the only measure on which a question was referred.

B.      Answer to the question referred

51.      I have concluded that, in determining the answer to the question referred, the Commission was right to approach it by assessing the responsibilities of Cordis as an independent authority with enforcement obligations under EU law. Indeed, an established principle of EU law states that ‘the primacy of EU law requires not only courts, but all of the bodies of the Member States, to give full effect of EU rules’. (36) The breadth of this obligation was recently asserted by one Advocate General as extending to the following:

‘It is … established that the duty of immediate application of EU law applies equally to national courts and to administrative authorities. Both, within the exercise of their respective jurisdiction or competence, are under a duty to give full effect to provisions of EU law, without having to request or to await the prior setting aside of any conflicting provision of national law by legislative or other constitutional means. Finally, giving full effect to provisions of EU law includes applying all the principles of national application of EU law, such as primacy, direct effect, or conform interpretation.’ (37)

52.      In the case-law to date, organs of the Member States have been called upon, within the exercise of their respective enforcement powers, to disapply national legislation that is contrary to EU law in the context of their obligation to give full effect to EU law. (38) It must follow that Member State bodies with specific remedial obligations like Cordis are caught by the well-established duty of good faith enforcement of EU law, now reflected in Articles 4(3) and 19(1) TEU, at least with respect to provisions such as Article 41(11) of Directive 2009/73, (39) and the remedial obligations it entails (see below, points 54 to 57). Indeed, the Court has recently considered a dispute concerning the scope of the remedial provision of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, (40) and restrictions on the powers under Member State law of a commission set up to enforce equal treatment. (41)

53.      The Court held in Minister for Justice and Equality and Commissioner of the Garda Síochána; that, when a commission had been set up as an alternative to the courts to secure the enforcement of equal treatment under Directive 2000/78, ‘it would be contradictory if an individual were able to rely upon the provisions of EU law in a particular area before a body upon which national law has conferred jurisdiction over disputes in that area but that body were under no obligation to apply those provisions by refraining from applying provisions of national law which conflict with them’. (42)

54.      It is uncontested that Cordis is the dispute settlement authority established by the French Government to fulfil its obligations under Article 41(11) of Directive 2009/73. It is also uncontested that there is an alternative course of action available, as was the case in Minister for Justice and Equality and Commissioner of the Garda Síochána, namely, recourse to the ordinary courts (see Article 41(15) of Directive 2009/73 and Article 41(17)). Thus, just as the commission in Minister for Justice and Equality and Commissioner for Garda Síochána was not to have its powers curtailed vis-à-vis the ordinary courts, I take the view that, in conformity with arguments made by Direct énergie and Eni Gas & Power France, if the remedies that Cordis were empowered to issue were temporally diminished when compared with those issued by the French courts, this would discourage litigants from having recourse to Cordis procedures, and frustrate the objective of Directive 2009/73 with respect to the availability of expeditious remedies. (43)

55.      Therefore, the remedies which Cordis is bound to apply must cover the whole of the period dating back to 3 March 2011. Aside from that, the question of what specific sanctions are to be available falls within national procedural autonomy, subject to the principles of effectiveness and equivalence, and the remedial provisions of Directive 2009/73 itself.

56.      Further, even though recital 33 and Article 41(4)(d) of Directive 2009/73 refer only to energy regulators and courts as having the power to issue ‘effective, proportionate and dissuasive remedies’, the wording of Article 41(11) subsumes dispute settlement authorities within the aegis of regulatory authorities. It is for Cordis and the French courts to apply French law in this regard, with due account afforded to the wording and objectives of Directive 2009/73, and what effective, proportionate and dissuasive remedies entail, for the period dating back to 3 March 2011, given no criteria for assessing this is provided under Directive 2009/73. (44) This means, for example, that amending the contracts with riders dating back to 2005 and 2008 might be viewed by a French court or Cordis as disproportionate, (45) given the breadth of the goals of Directive 2009/73 (see point 3 above), which range from ensuring fair choice for consumers to equal access to the network, to the goal of defence of system integrity and the reflection of actual costs incurred (see point 7 above with respect to Regulation No 7165/2009), and the consequences alleged by GRDF to follow for the stability of the gas sector (see point 20 above).

57.      However, this is not the question that has been referred to the Court. The question concerns the temporal scope of the effective, proportionate and dissuasive remedies Cordis is obliged to issue pursuant to Directive 2009/73 over a specified period of time.

58.      The above analysis is therefore sufficient to answer the question referred, given that it is confined to the ‘powers’ with which Cordis is to be charged under the terms of Directive 2009/73. I add the following for the sake of completeness.

59.      There has been much material placed before the Court concerning the principles of legal certainty and legitimate expectations, which unquestionably bind Member State authorities when they are implementing EU law. (46) These principles would seem to be relevant to the main proceedings only in so far as follows.

60.      With respect to the principle of legal certainty, it justifies the application of reasonable national time limits for bringing proceedings, which in effect ‘trump’ the requirement of effet utile of directives for periods prior to a judgment of the Court on their interpretation, provided that those time limits in turn comply with the principles of equivalence and effectiveness, and do not fall within a range of limited exceptions. (47) That said, once national time limits for bringing proceedings are complied with, it is only the Court, and not the French courts or Cordis, which can adjust the temporal effect of Directive 2009/73 to exclude periods running from 3 March 2011 to the present. (48)

61.      However, the Court has held, in the context of competition law, that, with respect to penalties that may be imposed on undertakings by Member State competition authorities, the principle of legal certainty dictates that the duty of the national authorities to disapply anticompetitive Member State law ‘cannot expose the undertaking concerned to any penalties, either criminal or administrative, in respect of past conduct where the conduct was required by the law concerned’ (my emphasis). (49) If such circumstances were to arise before the French courts or Cordis, the same rule would have to be applied for the benefit of GRDF.

62.      With regard to the principle of legitimate expectations, I am unable to see the relevance of this rule to the remedies Cordis is empowered to issue under EU law on the facts arising in the main proceedings, when it is established in the Court’s case-law that the protection of legitimate expectations cannot be relied on by a national court adjudicating in a dispute between private persons, to apply a rule of national law that is at odds with the general principles established in directives. (50) Here the obligation on Cordis to supply effective, proportionate and dissuasive remedies arises in a Directive.

63.      Finally, I agree with observations made by Direct énergie to the effect that the ruling in Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Others (51) is of limited utility in resolving the dispute arising in the main proceedings. That case concerns withdrawal and recovery of EU financial aid, and the limited role that the principle of legitimate expectations and legal certainty can play when competing with the imperative of the effectiveness of EU regulations that are operative in that discrete context.

V.      Conclusion

64.      That being so, I propose to respond to the question referred by the Cour de cassation (Court of Cassation, France) as follows.

Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC, and in particular Article 41(11) thereof, is to be interpreted as requiring that a regulatory authority, when settling a dispute, must have power to issue a decision which applies to the whole of the period covered by Directive 2009/73, that is to 3 March 2011, irrespective of the date of entry into force of the contracts in issue.

1      Original language: English.

2      OJ 2009 L 211, p. 94.

3      OJ 2009 L 211 p. 36

4      Law No 2017-55 of 20 January 2017, fourth line, added to Article L. 134-20 of the energy code. Pursuant to its terms, Cordis could, at the request of the party seising it, decide that the decision will produce an effect from a date prior to it being seised, without however this date being before the date on which the dispute was formally raised by one of the parties for the first time, and in any case without this date being any more than two years prior to being seised. This provision is, however, irrelevant to the main proceedings ratione temporis. In order not to be hypothetical, an order for reference must be ‘necessary for the effective resolution of a dispute’. Judgment of 10 December 2018, Wightman and Others (C‑621/18, EU:C:2018:999, paragraph 28 and the case-law cited).

5      C‑383/06 to C‑385/06, EU:C:2008:165.

6      GRDF refers, inter alia, to the judgments of 7 February 2002, Krauer (C‑28/00, EU:C:2002:82); of 18 April 2002, Duchon (C‑290/00, EU:C:2002:234); of 17 July 2014, Panasonic Italia and Others (C‑472/12, EU:C:2014:2082); and of 15 July 2004, Gerekens and Procola (C‑459/02, EU:C:2004:454).

7      Judgment of 13 March 2007, Unibet (C‑432/05, EU:C:2007:163).

8      Law No 2017-55 of 20 January 2017, fourth line, was not in force at the relevant time. Footnote 4 above.

9      GRDF distinguishes, in this regard, the judgment of 21 December 2016, Gutiérrez Naranjo and Others (C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980).

10      GRDF refers to the judgments of 15 July 2004, Gerekens and Procola (C‑459/02, EU:C:2004:454, paragraph 24), and of 13 March 2008, Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Others (C‑383/06 to C‑385/06, EU:C:2008:165, paragraph 60).

11      GRDF refers, inter alia, to the judgment of 25 June 1975, Deuka (5/75, EU:C:1975:88).

12      Eni Gas & Power France refers, inter alia, to Opinion 1/91 (First Opinion on the EEA Agreement) of 14 December 1991 (EU:C:1991:490), and judgment of 13 March 2007, Unibet (C‑432/05, EU:C:2007:163).

13      Direct énergie refers to the judgments of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraph 60), and of 21 January 2015, Unicaja Banco and Caixabank (C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21, paragraph 31).

14      Direct énergie relies on the judgments of 11 December 1997, Magorrian and Cunningham (C‑246/96, EU:C:1997:605, paragraph 41); of 16 May 2000, Preston and Others (C‑78/98, EU:C:2000:247, paragraphs 40 and 43); of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraph 60); and of 21 December 2016, Gutiérrez Naranjo and Others (C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 72).

15      Direct énergie also refers to the judgments of 4 October 2012, Byankov (C‑249/11, EU:C:2012:608, paragraphs 80 to 82), and of 19 April 2016, DI (C‑441/14, EU:C:2016:278, paragraph 38) with respect to legitimate expectations.

16      On this point it relies on the judgment of 9 September 2008, FIAMM and Others v Council and Commission (C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 185).

17      Judgment of 13 March 2008 (C‑383/06 to C‑385/06, EU:C:2008:165).

18      The French Government refers to the Law No 2017-55, which limits the temporal effect of decisions of bodies like Cordis to two years. It acknowledges however that this law is not applicable, ratione temporis, to the main proceedings. Footnote 4 above.

19      Judgment of 12 April 2018, Biosafe - Indústria de Reciclagens (C‑8/17, EU:C:2018:249, paragraph 36).

20      Judgment of 13 March 2008, Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Others (C‑383/06 to C‑385/06, EU:C:2008:165, paragraph 52).

21      An equilibrium has indeed been sought by the French legislature in passing Law No 2017-55.

22      Here the French Government relies on the Opinion of Advocate General Wahl in Joined Cases Finanzamt Neuss and Butin (C‑374/16 and C‑375/16, EU:C:2017:515, point 71).

23      The Commission refers to the judgment of 6 March 2007, Meilicke and Others (C‑292/04, EU:C:2007:132, paragraphs 35 to 37).

24      Judgment of 8 November 2001, Silos (C‑228/99, EU:C:2001:599, paragraphs 35 to 38).

25      Judgment of 26 April 1994, Roquette Frères (C‑228/92, EU:C:1994:168).

26      Judgment of 23 October 2014, Schulz and Egbringhoff (C‑359/11 and C‑400/11, EU:C:2014:2317, paragraph 54 and following).

27      E.g. judgment of 5 December 2013, Asociación de Consumidores Independientes de Castilla y León (C‑413/12, EU:C:2013:800), which hinged on remedies available in a horizontal dispute, and in which the Court observed at paragraph 25 as follows: ‘the legal action brought … was instituted by a consumer protection association in order to prevent the continued use of unfair contractual terms by a seller or a supplier’. At paragraph 26 the Court concluded that ‘since the questions referred concern the interpretation of European Union law, the Court of Justice may properly give a ruling on them’. Cf. the View of Advocate General Wahl in Sánchez Morcillo and Abril García (C‑169/14, EU:C:2014:2110, points 72 to 74). At point 70 the Advocate General questioned whether the legal situation in issue, which concerned the remedies available to enforce EU consumer law horizontally between two private parties; was governed by EU law.

28      Judgment of 13 February 2014, Airport Shuttle Express and Others (C‑162/12 and C‑163/12, EU:C:2014:74, paragraph 39). See more recently judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C-64/16, EU:C:2018:117, paragraph 20).

29      The Court accepts that national legislation can govern activities which fall within the scope of a directive, thus triggering its jurisdiction. See e.g., judgment of 2 October 2018, Ministerio Fiscal (C‑207/16, EU:C:2018, 788, paragraph 38).

30      E.g. the judgment of 12 January 2010, Petersen (C‑341/08, EU:C:2010:4, paragraph 32).

31      E.g. judgment of 22 October 1998, IN. CO. GE.’90 and Others (C‑10/97 to C‑22/97, EU:C:1998:498, paragraph 23).

32      With the exception of Article 11 of Directive 2009/73, which is not relevant to the main proceedings. See judgment of 19 March 2015, E.ON Földgáz Trade (C‑510/13, EU:C:2015:189, paragraph 33). Between 3 September 2009, the date of entry into force of Directive 2009/73, and 3 March 2011, the end date for its transposition, the Member States were bound to refrain from taking any positive measures liable to seriously compromise the attainment of the result prescribed by that Directive. See Opinion of Advocate General Cruz Villalón in E.ON Földgáz Trade, (C-510/13, EU:C:2014:2325, points 22 and 23). The Advocate General refers to the judgment of 18 December 1997, Inter-Environnement Wallonie (C‑129/96, EU:C:1997:628, paragraph 45); of 26 May 2011, Stichting Natuur en Milieu and Others (C‑165/09 to C‑167/09, EU:C:2011:348, paragraph 78); and of 11 September 2012, Nomarchiaki Aftodioikisi Aitoloakarnanias and Others (C‑43/10, EU:C:2012:560, paragraph 57). Prior to 3 March 2011, the applicable Directive was Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market on natural gas and repealing Directive 98/30/EC, OJ 2003 L 176, p. 57. See the Opinion of Advocate General Cruz Villalón in E.ON Földgáz Trade, (C-510/13, EU:C:2014:2325, at points 26 and 27).

33      See judgment of 19 March 2015, E.ON Földgáz Trade (C-510/13, EU:C:2015:189, paragraph 4).

34      COM (2007) 529 final, 19 September 2007, point 2.1.

35      Under the established case-law of the Court, a question will be inadmissible to the extent that it provides insufficient information regarding the factual and legal context of the dispute, as required by Article 94 of the Rules of Procedure. See e.g. recent judgment of 28 March 2019, Verlezza and Others (C‑487/17 to C‑489/17, EU:C:2019:270, paragraph 30). On partial inadmissibility see, e.g. judgment of 13 February 2014, Crono Service and Others (C‑419/12 and C‑420/12, EU:C:2014:81, paragraphs 31 to 33).

36      Judgment of 4 December 2018, The Minister for Justice and Equality and Commissioner of the Garda Síochána (C‑378/17, EU:C:2018:979, paragraph 39).

37      Opinion of Advocate General Bobek in Link Logistik N&N (C‑384/17, EU:C:2018:494, point 106). The Advocate General refers the judgments of 9 March 1978, Simmenthal (106/77, EU:C:1978:49, paragraph 24); of 22 June 1989, Costanzo (103/88, EU:C:1989:256, paragraph 31); of 12 January 2010, Petersen (C‑341/08, EU:C:2010:4, paragraph 80); of 19 January 2010, Kücükdeveci (C‑555/07, EU:C:2010:21, paragraph 55); of 5 July 2016, Ognyanov (C‑614/14, EU:C:2016:514, paragraph 34); of 10 October 2017, Farrell (C‑413/15, EU:C:2017:745,paragraph 34); and of 14 September 2017, The Trustees of the BT Pension Scheme (C‑628/15, EU:C:2017:687, paragraph 54 and the case-law cited). Cf. the Opinion of Advocate General Wahl in The Minister for Justice and Equality and Commissioner of the Garda Síochána (C‑378/17, EU:C:2018:698, point 71): ‘As I see it, an administrative body or a court can be under an obligation to refrain from applying a provision of national law, in order to give effect to EU law only if it has been established at the outset that that organ has substantive jurisdiction to consider the case (or indeed, as concerns more broadly authorities, to take a decision on a particular matter).’

38      My emphasis. Judgment of 4 December 2018, The Minister for Justice and Equality and Commissioner of the Garda Síochána (C‑378/17, EU:C:2018:979, paragraph 38 and the case-law cited).

39      The Court has consistently held, that ‘the Member States are obliged, under, inter alia, the principle of sincere cooperation, laid down in the first subparagraph of Article 4(3) TEU, to ensure, in their respective territory, the application of and compliance with EU law and that, under the second subparagraph of Article 4(3) TEU, the Member States are to take any appropriate measure, general or particular, to ensure fulfilment of the obligations resulting from the acts of the institutions of the Union. Moreover, under the second subparagraph of Article 19(1) TEU, Member States are to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law’. See paragraph 47 of the judgment of 14 September 2017, The Trustees of the BT Pension Scheme (C-628/15, EU:C:2017:687).

40      OJ 2000 L 303, p. 16.

41      Judgment of 4 December 2018, The Minister for Justice and Equality and Commissioner of the Garda Síochána (C‑378/17, EU:C:2018:979).

42      Ibid. paragraph 46 and the case-law cited.

43      I note that in judgment of 4 December 2018, The Minister for Justice and Equality and Commissioner of the Garda Síochána (C‑378/17, EU:C:2018:979), the Court fell short of finding that the obligations elaborated in that judgment were confined to bodies having the authority to make references under Article 267 TFEU, and relied on rulings involving bodies of a purely administrative nature in imposing these obligations (e.g. judgments of 22 June 1989, Costanzo, 103/88, EU:C:1989:256). The Court closed by stating at paragraph 47 that ‘[F]urthermore, in so far as the Workplace Relations Commission must be considered to be a ‘court or tribunal’ within the meaning of Article 267 TFEU … it may refer to the Court, pursuant to that article, questions of interpretation of relevant provisions of EU law and, as it is bound by the judgment in which the Court gives a preliminary ruling, it must forthwith apply that judgment, disapplying, if necessary, of its own motion conflicting provisions of national legislation’. Emphasis added.

44      Judgment of 23 December 2009, Spector Photo Group and Van Raemdonck (C‑45/08, EU:C:2009:806, paragraph 71).

45      The Court has held, for example, that in assessing the proportionality of a penalty or remedy imposed, account must be taken by the national court of the gravity of the infringement. See e.g. the judgment of 26 September 2018, Van Gennip and Others (C‑137/17, EU:C:2018:771, paragraph 99 and the case-law cited).

46      E.g. judgment of 21 March 2019, Unareti (C‑702/17, EU:C:2019:233, paragraph 34).

47      E.g. judgment of 19 May 2011, Iaia and Others (C-452/09, EU:C:2011:323, paragraphs 17 and 18).

48      E.g. judgment of 23 October 2014, Schulz and Egbringhoff (C‑359/11 and C‑400/11, EU:C:2014:2317, paragraph 57 and the case-law cited).

49      Judgment of 9 September 2003, CIF (C‑198/01, EU:C:2003:430, paragraph 53).

50      Judgment of 19 April 2016, DI (C-441/14, EU:C:2016:278, paragraph 38). See similarly, judgment of 13 October 2016, Polkomtel (C‑231/15, EU:C:2016:769, paragraph 25).

51      Judgment of 13 March 2008 (C‑383/06 to C‑385/06, EU:C:2008:165). Many of the authorities relied on by GRDF refer to the circumstances in which EU measures can apply to facts arising prior to their date of entry into force. See e.g. footnote 6 above. This factual scenario does not arise in the main proceedings on the approach I am here proposing.

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