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

Provisional text

OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 2 April 2020 (1)

Case C‑648/18

Autoritatea Naţională de Reglementare în Domeniul Energiei (ANRE)

v

Societatea de Producere a Energiei Electrice în Hidrocentrale Hidroelectrica SA

(Request for a preliminary ruling from the Tribunalul Bucureşti (Regional Court, Bucharest, Romania))

(Question referred for a preliminary ruling — Internal market in electricity — Article 35 TFEU — Free movement of goods — Quantitative restrictions on exports — Measures having equivalent effect — Exports of electricity — National measure according to which electricity producers are obliged to trade all the electricity produced exclusively on a centralised competitive national market)

1.        The Romanian regulatory authority sanctioned an undertaking for exporting some of the electricity it produces to Hungary without previously offering it on the national market through a centralised trading platform as required, according to that authority, by the domestic legislation.

2.        The Tribunalul Bucureşti (Regional Court, Bucharest, Romania) wishes to know whether the national legislation so applied entails a quantitative restriction on exports or a measure having equivalent effect and is, therefore, incompatible with Article 35 TFEU.

I.      Legal framework

A.      EU law

1.      Directive 2009/72/EC (2)

3.        Directive 2009/72 contains the following recitals:

‘…

(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.

…

(25)      The security of energy supply is an essential element of public security and is therefore inherently connected to the efficient functioning of the internal market in electricity and the integration of the isolated electricity markets of Member States. … Functioning electricity markets and, in particular, the networks and other assets associated with electricity supply are essential for public security, for the competitiveness of the economy and for the well-being of the citizens of the Union. …

…

(51)      Consumer interests should be at the heart of this Directive and quality of service should be a central responsibility of electricity 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 3 (‘Public service obligations and customer protection’) provides as follows in paragraph 1:

‘Member States shall ensure, on the basis of their institutional organisation and with due regard to the principle of subsidiarity, that, without prejudice to paragraph 2, electricity undertakings are operated in accordance with the principles of this Directive with a view to achieving a competitive, secure and environmentally sustainable market in electricity, and shall not discriminate between those undertakings as regards either rights or obligations.’

5.        Article 4 (‘Monitoring of security of supply’) states that:

‘Member States shall ensure the monitoring of security of supply issues. Where Member States consider it appropriate, they may delegate that task to the regulatory authorities referred to in Article 35. Such monitoring shall, in particular, cover the balance of supply and demand on the national market, the level of expected future demand and envisaged additional capacity being planned or under construction, and the quality and level of maintenance of the networks, as well as measures to cover peak demand and to deal with shortfalls of one or more suppliers. …’

6.        Article 36 (‘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 37, 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 electricity 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 electricity networks, taking into account long-term objectives;

(b)      developing competitive and properly functioning regional markets within the Community in view of the achievement of the objectives referred to in point (a);

(c)      eliminating restrictions on trade in electricity between Member States, including developing appropriate cross-border transmission capacities to meet demand and enhancing the integration of national markets which may facilitate electricity flows across the Community;

…’

7.        Under Article 37 (‘Duties and powers of the regulatory authority’):

‘1.      The regulatory authority shall have the following duties:

…

(c)      cooperating in regard to cross-border issues with the regulatory authority or authorities of the Member States concerned and with the Agency;

…

(i)      monitoring the level of transparency, including of wholesale prices, and ensuring compliance of electricity undertakings with transparency obligations;

(j)      monitoring the level and effectiveness of market opening and competition …

…’

8.        Article 38 (‘Regulatory regime for cross-border issues’) states:

‘1.      Regulatory authorities shall closely consult and cooperate with each other, and shall provide each other and the Agency with any information necessary for the fulfilment of their tasks under this Directive. In respect of the information exchanged, the receiving authority shall ensure the same level of confidentiality as that required of the originating authority.

…

3.      National regulatory authorities shall have the right to enter into cooperative arrangements with each other to foster regulatory cooperation.

…’

2.      Regulation (EU) No 1227/2011 (3)

9.        Article 1 (‘Subject matter, scope and relationship with other Union legislation’) states in paragraph 1 that:

‘This Regulation establishes rules prohibiting abusive practices affecting wholesale energy markets which are coherent with the rules applicable in financial markets and with the proper functioning of those wholesale energy markets whilst taking into account their specific characteristics. It provides for the monitoring of wholesale energy markets by the Agency for the Cooperation of Energy Regulators … in close collaboration with national regulatory authorities and taking into account the interactions between the Emissions Trading Scheme and wholesale energy markets.’

3.      Regulation (EU) 2015/1222 (4)

10.      Article 5 (‘NEMOs [nominated electricity market operators] designation in case of a national legal monopoly for trading services’) states in the first subparagraph of paragraph 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.’

B.      National law. Legea energiei electrice și a gazelor naturale nr. 123/2012 (5)

11.      Article 2 provides:

‘Activities in the sector of electricity and heat produced in cogeneration shall be carried out in order to achieve the following basic objectives:

…

(c)      to create and ensure the operation of competitive electricity markets;

…

(h)      improving the competitiveness of the internal electricity market and active participation in the formation of both the regional market and the internal energy market of the European Union and participation in the development of cross-border exchanges;

…’

12.      Article 3(49) defines the ‘centralised market’ as ‘the framework within which trading in electricity is carried out between various economic operators, with the involvement of the electricity market operator or the manager of the transmission system, on the basis of specific rules approved by the competent authority’.

13.      According to Article 20(1):

‘The electricity market is composed of the regulated market and the competitive market, and energy transactions shall be either wholesale or retail.’

14.      Under Article 23(1):

‘Trading in electricity shall be conducted on the competitive market, in a transparent, public, centralised and non-discriminatory manner.’

15.      Article 28 reads as follows:

‘Producers shall, principally, have the following obligations:

…

(c)      to trade electricity and technological system services on the regulated and competitive market in a transparent and non-discriminatory manner;

…’

II.    The proceedings and the question referred

16.      Societatea de Producere a Energiei Electrice în Hidrocentrale Hidroelectrica SA (‘Hidroelectrica’) is a Romanian private-law company of which the State is the majority shareholder. Its business includes the transmission and distribution of electricity and it holds licences for both the production and the supply of electricity.

17.      Hidroelectrica also holds a trading licence issued by the Hungarian energy regulatory authority.

18.      After obtaining that licence, from December 2014 onwards, the company concluded electricity sale contracts via a centralised trading platform in Hungary, which is one of the markets recognised by the Agency for the Cooperation of Energy Regulators (‘the Agency’) for the purposes of cooperation between energy regulators.

19.      On 11 May 2015, the Autoritatea Națională de Reglementare în Domeniul Energiei (National Energy Sector Regulatory Authority; ‘ANRE’) informed Hidroelectrica that an administrative fine of 50 000 Romanian lei (RON) had been imposed on it ‘for not having offered for sale in a transparent manner on the competitive electricity market in Romania all the electricity available to it and having exported some of the electricity it had produced to the Hungarian electricity market, in breach of the legislation in force’.

20.      In sanctioning Hidroelectrica, ANRE relied on the provisions of Article 23(1) and Article 28(c) of Law No 123/2012, which it interpreted as meaning that the obligation on national producers to offer publicly and on a non-discriminatory basis on the competitive market all the electricity available to them meant that producers must do so on Opcom SA’s centralised platforms (that is to say, on the Romanian centralised national electricity market). (6)

21.      In Romania, according to ANRE, a producer is not entitled to export electricity directly to other EU countries. That conduct infringes the national legislation and, by implication, the requirements linked to the production licence, and is punishable with an administrative fine.

22.      Hidroelectrica challenged the sanction before the Judecătorie Sectorului 1 București (Court of First Instance, Sector 1, Bucharest, Romania), claiming that it was invalid on the grounds that it infringed the principle of the free movement of goods. Specifically, it argued that ANRE had interpreted Article 23(1) of Law No 123/2012 contrary to the legal thinking developed by the Consiliul Concurenței (Romanian competition authority) and to its own precedents.

23.      Hidroelectrica’s application having been upheld at first instance, ANRE lodged an appeal with the Tribunalul București (Regional Court, Bucharest), which referred the following question for a preliminary ruling:

‘Does Article 35 TFEU preclude an interpretation of Article 23(1) and Article 28(c) of [Law No 123/2012] according to which electricity producers in Romania are obliged to trade all the electricity they produce exclusively on a centralised competitive market in Romania, given that there is the possibility of exporting energy, albeit not directly but through trading companies?’

III. Procedure before the Court of Justice

24.      The reference for a preliminary ruling was registered at the Court on 17 October 2018. ANRE, the Romanian Government and the European Commission submitted written observations.

25.      ANRE, Hidroelectrica, the Romanian Government and the Commission appeared at the public hearing on 23 January 2020.

IV.    Analysis

A.      Admissibility

26.      ANRE contests whether the question referred is admissible since, in its view, the referring court is not expressing uncertainty as to the interpretation of EU law, but is comparing EU law against a given interpretation of national legislation. It adds that the Court does not have jurisdiction to adjudicate in a discussion regarding the interpretation and application of a provision of domestic law. (7)

27.      The dispute has arisen from an interpretation, on which there is disagreement, of a number of provisions of Law No 123/2012. ANRE reads Article 23(1) and Article 28(c) of Law No 123/2012 as meaning that all wholesale energy trading must take place exclusively on Opcom’s platforms. However, according to the order for reference, other Romanian forums have reached different conclusions. (8)

28.      The first instance court adopted an interpretation of those articles that led it to uphold Hidroelectrica’s action. On appeal, ANRE, in contrast, advocates a strict interpretation, which, if upheld, would make the sanction imposed lawful. (9)

29.      The objection of inadmissibility cannot be upheld. The referring court is not asking the Court to rule on the interpretation of Law No 123/2012, clarifying which of the two existing interpretative approaches is correct under domestic law. In actual fact, after adopting one of those two contested interpretations (the ‘restrictive’ interpretation), it entertains doubts as to whether the domestic provisions are compatible with EU law.

30.      The question referred is limited to determining whether Article 35 TFEU precludes the electricity trading regime derived from the restrictive interpretation of the national legislation. In answering that question, the Court is not required to resolve the domestic debate about which interpretation of domestic law is the best. Its task, taking as the legislative basis that set out by the referring court, (10) is to determine whether that basis is compatible with EU law (here, Article 35 TFEU), thereby ensuring a uniform interpretation of that law that binds all the authorities and courts of all the Member States. (11)

B.      The applicability of Article 35 TFEU

31.      The Romanian Government and ANRE argue that, in the light of the legislative harmonisation effected by Regulation 2015/1222, Article 35 TFEU does not apply.

32.      According to settled case-law, ‘where a matter has been the subject of exhaustive harmonisation at EU level, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure and not in the light of primary law’. (12)

33.      Although it is not necessary to determine whether Regulation 2015/1222 exhaustively harmonises the matter, it is nevertheless clear that it came into force on 26 July 2015, whereas the facts giving rise to the sanction occurred between December 2014 and February 2015. That regulation therefore does not apply, ratione temporis.

34.      In any event, nor would it apply ratione materiae, since, as Hidroelectrica observed at the hearing, the monopoly to which Article 5 of that regulation refers concerns only short-term (day-ahead and intraday) markets, and not those at issue in the proceedings (medium- and long-term trading and bilateral contracts).

35.      As the Commission has indicated, (13) Directive 2009/72, as the principal set of rules governing the internal market in electricity, does not fully harmonise that market. In particular, it contains no specific provisions relating to electricity trading.

36.      Since the conditions for electricity trading on the markets of the Member States are not fully harmonised, the national legislation must be examined in the light of the Treaties. I would call to mind that electricity constitutes a ‘good’ for the purposes of Articles 34 and 35 TFEU. (14)

C.      Substance

37.      According to the referring court’s interpretation of the national legislation, wholesale electricity trading must take place on a centralised platform in Romania, and producers may not export that electricity directly to the markets of a different Member State.

38.      It is apparent from the order for reference that Law No 123/2012 does not completely prevent electricity exports. That prohibition obtains for producers, who necessarily have to sell their output on the centralised national market. In contrast, as stated at the hearing, the traders who buy that electricity on that market may subsequently export it to other Member States. (15)

39.      Although they were discussed extensively at the hearing, I am afraid that it proved impossible to gain a complete picture of the characteristics of the Romanian electricity market, which the referring court will have to verify. Nevertheless, for the purposes of these proceedings, there appears to be a degree of consensus on the following points:

–        wholesale producers are required to operate through Opcom, the platform on which they have to trade all the electricity they produce;

–        those producers cannot, therefore, enter into medium- and long-term contracts to export the electricity they produce to other Member States, or access the centralised markets of those other Member States;

–        bilateral export contracts can only be concluded through traders who have previously acquired the electricity on the wholesale market;

–        those restrictions do not apply in the short-term (day-ahead and intraday) markets where the transaction volume is lower than on the wholesale market.

40.      As already stated, in this case Hidroelectrica is disputing a sanction imposed on it, in accordance with the interpretation of the Romanian legislation being advanced by ANRE, for exporting electricity otherwise than on the Opcom platform.

1.      The existence of a restriction on exports

41.      It is necessary to ascertain, first, whether the prohibition on an economic agent that produces electricity in Romania exporting it to a different Member State otherwise than through the platform established by the domestic legislation amounts to a measure having an effect equivalent to a quantitative restriction on exports within the meaning of Article 35 TFEU.

42.      The Court has classified as measures having an effect equivalent to quantitative restrictions on exports ‘national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a Member State and its export trade in such a way as to provide a particular advantage for national production or for the domestic market of the State in question, at the expense of the production or of the trade of other Member States’. (16)

43.      Law No 123/2012, as interpreted by ANRE, prohibits direct trading (otherwise than via the Opcom platforms) between Romanian electricity producers and their potential customers in a different Member State.

44.      Although that prohibition also applies to producers of electricity intended for domestic consumption, according to the Court’s case-law, ‘a national measure applicable to all traders active in the national territory liable to have a greater effect on goods leaving the market of the exporting Member State than on the marketing of goods in the domestic market of that Member State is covered by the prohibition laid down in Article 35 TFEU’. (17)

45.      According to the Commission, that is what happened in this case, and I share its view. The domestic provision acts as a deterrent to exports and does not treat the centralised national market, managed by Opcom, in the same way as similar electricity markets in the rest of the European Union. Moreover, if the Romanian system really does follow the model that the parties described at the hearing, the Commission believes that the system at issue entails direct discrimination that is incompatible with EU law. (18)

46.      The Romanian Government, ultimately, admits the restrictive effect criticised by the Commission. It argues that exporting electricity under bilateral contracts and otherwise than on the centralised platform ‘entails reducing the electricity available to cover the domestic load curve, thereby implying a need to cover it by means of imports’. (19)

47.      That argument shows that the purpose (or one of the purposes) of the legislative measure is to make exports of electricity dependent on domestic consumption having previously been satisfied. This unequivocally acknowledges that national producers are restricted in their access to the external market, since, as already explained, they are prohibited from exporting directly.

48.      That requirement is therefore one of those which, according to Gysbrechts and Santurel Inter have ‘as their specific object or effect the restriction of patterns of exports’. (20) Even where it is applied without distinction to all economic agents that produce electricity, the ‘actual effect of such a prohibition [is] greater on goods leaving the market of the exporting Member State than on the marketing of goods in the domestic market of that Member State’, precisely because it prioritises domestic supply and, in that sense, favours domestic supply at the expense of external trade.

2.      Potential grounds justifying the restriction

49.      A restrictive measure may be justified either on the grounds set out in Article 36 TFEU or by overriding requirements of public interest, provided that the measure is proportionate to the legitimate objective pursued. (21)

(a)    The existence of a justifying ground or requirement

50.      According to consistent case-law, it is for the national authorities to invoke the reasons justifying a derogation from the principle of the free movement of goods. (22)

51.      The order for reference makes no mention of any justification for Law No 123/2012.

52.      Nevertheless, I see no reason not to concede, as the Commission understands and as the Romanian Government states, (23) that the legislature’s intention could have been to ensure that the wholesale trading of electricity on the competitive market takes place in a transparent, public, centralised and non-discriminatory manner, thereby excluding non-transparent bilateral sales and purchases between the producers and other traders. (24)

53.      The Romanian Government adds a second justifying ground, in essence that of guaranteeing the electricity supply, and even a third — consumer protection.

54.      Indeed, it invokes the aim of safeguarding the security of the energy supply, for the benefit of consumers, citing recital 51 of Directive 2009/72, which refers to consumer interests as being at the heart of that directive. (25)

55.      In that vein, the Romanian Government emphasises that electricity exports under bilateral contracts involve ‘reducing the electricity available to cover the domestic load curve’ and would, under certain circumstances, require electricity to be imported, with the resulting increase in prices. (26)

56.      It can therefore be agreed that the objectives of the legislation at issue are, on the one hand, the transparency of the electricity market and, on the other, securing an adequate supply of electricity for domestic consumption.

57.      I agree with the Commission that the first of those objectives (ensuring that electricity trading is conducted transparently) can be classified as an ‘overriding requirement of public interest’ within the meaning of the Court’s case-law, such as to justify a potential restriction on exports.

58.      As regards the second objective, according to the case-law, protecting energy supply falls naturally within the public security grounds justifying a restriction, under Article 36 TFEU. (27) In Article 194(1)(b) TFEU, the drafters of EU primary law identify guaranteeing the security of energy supply as one of the objectives of Union policy on energy. (28)

59.      It is therefore for the Member State to demonstrate that the legislation enacted on the basis of those justifications is necessary and appropriate in order to attain the objectives pursued and is in conformity with the principle of proportionality, and that those objectives could not be achieved by less extensive prohibitions or restrictions, or by prohibitions or restrictions having less effect on EU trade. (29)

(b)    The measure at issue must be necessary and appropriate

60.      In theory, centralising the wholesale trading of electricity in a single platform may be appropriate both in order to protect the supply for domestic consumption and to ensure that such trading is transparent.

61.      In any event, it is for the referring court to determine whether, as a result of the characteristics of that platform (which is managed by an operator appointed by the national authorities), the centralising of electricity trading on that platform: (a) is an adequate, appropriate and effective means of securing domestic supply; and (b) guarantees sufficient transparency and non-discrimination.

62.      According to the Court’s case-law, ‘the reasons which may be invoked by a Member State by way of justification must be accompanied by appropriate evidence or by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that State, and specific evidence substantiating its arguments’. (30)

(c)    The restriction must be proportionate

63.      To my mind, even allowing that the centralising of trading required (according to ANRE) by Law No 123/2012 were appropriate to achieving the legitimate objective sought, that requirement would go further than necessary, because it is possible to imagine measures that would be less restrictive of the freedom guaranteed by Article 35 TFEU.

(1)    Transparency

64.      As regards ensuring transparency, I completely agree with the Commission’s position: it is possible to use the tools for cooperation between the national regulatory authorities laid down in Articles 36 to 38 of Directive 2009/72 without going so far as to prohibit direct exports to other Member States otherwise than on the centralised platform.

65.      One of the duties of those regulatory authorities, in so far as concerns us here, is that of ‘monitoring the level of transparency, including of wholesale prices, and ensuring compliance of electricity undertakings with transparency obligations’. (31)

66.      The duties imposed on the regulatory authorities aim at ‘promoting … a competitive, secure and environmentally sustainable internal market in electricity …, and effective market opening for all customers and suppliers in the Community and ensuring appropriate conditions for the effective and reliable operation of electricity networks, taking into account long-term objectives’, at all times ‘in close cooperation with the … regulatory authorities of other Member States’. (32)

67.      Article 38 of Directive 2009/72 details the duty of cooperation: the regulatory authorities are to cooperate in order, inter alia, to ‘foster the creation of operational arrangements in order to enable an optimal management of the network, promote joint electricity exchanges and the allocation of cross-border capacity, and to enable an adequate level of interconnection capacity, … to allow for development of effective competition and improvement of security of supply, without discriminating between supply undertakings in different Member States’. (33)

68.      In that context, as the Commission submits, nothing prevents ANRE from drawing up a list of reliable trading platforms, that is to say, those capable of ensuring transparent and non-discriminatory trading. In order to do so it can rely on:

–        Article 38(1) of Directive 2009/72, on consultation and mutual cooperation by those authorities, which envisages that they will provide each other with ‘any information necessary for the fulfilment of their tasks’; and

–        the power conferred on those authorities under Article 38(3) ‘to enter into cooperative arrangements with each other to foster regulatory cooperation’.

69.      In addition, Regulation No 1227/2011, which is intended to safeguard and ensure wholesale energy market integrity and transparency, has devised potentially useful mechanisms for cooperation between regulatory authorities:

–        It states in the first subparagraph of Article 7(2) that ‘national regulatory authorities shall cooperate at regional level and with the Agency in carrying out the monitoring of wholesale energy markets’. Article 7(1) establishes that those authorities may in that way ‘monitor trading activity in wholesale energy products to detect and prevent trading based on inside information and market manipulation’. (34)

–        In Article 9 the regulation provides for the creation of a European register of market participants, which is to contain the most relevant details of the transactions concluded on the wholesale energy market, including, in accordance with Article 8(1) of that regulation, ‘the precise identification of the wholesale energy products bought and sold, the price and quantity agreed, the dates and times of execution, the parties to the transaction and the beneficiaries of the transaction and any other relevant information’. Under Article 9(3), that register is to be accessible to the national regulatory authorities.

70.      I therefore believe that transparency can be achieved without requiring wholesale electricity trading to be conducted only on platforms managed by a single national operator, that is to say, excluding the platforms of other Member States that guarantee identical conditions as regards transparency and non-discrimination.

71.      There are, undoubtedly, sufficient legislative instruments to ensure that the electricity market is transparent, with no need to wait for full harmonisation of the sector, as ANRE argued at the hearing.

(2)    Ensuring supply

72.      In terms of ensuring supply for domestic electricity consumption, I am also of the view that it is not necessary to ban producers, as a general rule, from exporting electricity directly otherwise than on the platform managed by Opcom, where other less radical measures are possible.

73.      I have already stated that, since energy is of fundamental strategic importance to the Member States, ensuring its regular supply is a primordial objective in the public interest.

74.      However, ‘regular supply’ is not necessarily the same as ‘supply at the best price’. The latter does appear to be the real aim of the legislation at issue which, according to the Romanian Government, seeks to prevent the increase in prices inherent in the need to import electricity. (35)

75.      If purely economic or commercial considerations were able to justify a prohibition on direct exports, the very principle of the internal market would be undermined. That is not the same as the Member States being able to invoke public security or public interest grounds to prevent exports of electricity in emergencies caused by exceptional circumstances. However, to do so systematically, for no other purpose than to prevent the market from operating freely and obtain a better price for domestic consumers, to my mind goes beyond the legitimate grounds for restricting exports authorised by Article 36 TFEU and the public interest grounds that justify quantitative restrictions on exports or measures having equivalent effect.

76.      As highlighted at the hearing, Hidroelectrica is not disputing that it must comply with the statutory provisions requiring it to keep a given quantity of electricity available, precisely in order to protect the national supply. What it is claiming is that it should be permitted to trade the rest of the electricity it produces, either under bilateral contracts or on markets other than the Opcom centralised platform.

77.      If that is indeed so, the absolute prohibition on exporting electricity that is not strictly required to ensure a minimum supply is disproportionate.

78.      Moreover, the fact that traders can buy electricity on that wholesale market and subsequently export it to other Member States without similar restrictions to those imposed on producers seems to be inconsistent with that objective.

79.      It must be recalled that, as Regulation 2015/1222 states, security of supply is ‘inherently connected to the efficient functioning of the internal market in electricity and the integration of the isolated electricity markets of Member States’. (36)

80.      In the same vein, it can be seen in recital 44 of Directive 2009/72 that ensuring security of supply involves monitoring the balance between supply and demand in the various Member States, but without leaving the matter there, since ‘such monitoring should be followed by a report on the situation at Community level, taking account of interconnection capacity between areas’.

81.      Importing and exporting electricity between the Member States is, then, a fundamental element in ensuring the supply both in each Member State and in the European Union as a whole. It is, in short, a safeguard that addresses equally the national and European dimensions of the electricity market, in the interests of security of supply at both levels, enabling the needs of the domestic market to be met by the resources of the EU market.

V.      Conclusion

82.      In the light of the foregoing, I suggest that the Court of Justice should answer the Tribunalul Bucureşti (Regional Court, Bucharest, Romania) as follows:

‘Article 35 TFEU precludes legislation of a Member State that, by establishing an obligation to centralise the wholesale trading of electricity on a single platform, managed by an operator designated by the national authorities, prohibits producers from exporting electricity directly to the Member States.

Such a measure cannot, as a general rule, be justified on grounds of transparency or security of supply where those grounds are dictated by economic reasons relating to the increase in prices resulting from any imports of electricity.’

1      Original language: Spanish.

2      Directive of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55).

3      Regulation of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency (OJ 2011 L 326, p. 1).

4      Commission Regulation of 24 July 2015 establishing a guideline on capacity allocation and congestion management (OJ 2015 L 197, p. 24).

5      Law No 123/2012 on electricity and natural gas (‘Law No 123/2012’).

6      On 13 February 2015, ANRE had published on its website a communiqué entitled ‘ANRE’s interpretation of the provisions of Law [No 123/2012] in relation to the question whether producers may export electricity’. In that communiqué it stated, in relation to Articles 23 and 28 of Law No 123/2012, that, as set out in the order for reference, ‘according to ANRE’s interpretation, all available electricity must be offered for sale in a transparent manner, publicly, without discrimination and centrally on Opcom’s platforms’, that is to say, on Romania’s centralised electricity market. According to the Commission, the communiqué went on to state that ‘a producer can create a trading company in Romania or another country, but that company may only acquire the electricity produced by the producer if, as a result of its participating in one of the trading systems managed by Opcom in which the producer also participates, the contract is awarded to its bid or to a similar bid’ (paragraph 20 of the Commission’s observations).

7      Section 1, sixth paragraph, of ANRE’s observations.

8      Paragraph 6 of the order for reference refers to the judgment of a Bucharest court of first instance which states that ‘trading outside [Opcom’s] centralised platforms did not necessarily constitute an infringement of the provisions of Article 23(1) of [Law No 123/2012]’.

9      In opposition to that interpretation, which the Commission calls ‘restrictive’ (paragraph 18 of its observations), there are those who prefer a ‘broad’ interpretation of the provisions at issue (paragraph 21 of those observations). The Romanian competition authority likewise endorsed that latter interpretation in a report of 25 February 2015. Part of that report, as adduced by Hidroelectrica, is reproduced in the order for reference and states that ‘Law No 123/2012 …, which requires market participants to enter into wholesale transactions only on centralised markets, must be interpreted as meaning that electricity producers are free to make export sales directly (or through companies within their group)’.

10      The task of defining the factual and legislative context of the question referred lies exclusively with the referring court. Amongst others, judgment of 2 April 2009, Pedro IV Servicios (C‑260/07, EU:C:2009:215, paragraph 29). That notwithstanding, the higher courts responsible for unifying the case-law on what is lawful under domestic law, may ultimately overturn the referring court’s interpretation. Should they do so, the Court’s interpretation of EU law provided in this ruling could prove insufficient to resolve any doubts, arising from a new interpretation of that legislation, as to whether national legislation is compatible with EU law. It will nevertheless continue to be the authoritative interpretation of EU law in the factual and legislative context that gave rise to this referral for a preliminary ruling.

11      Nor can the Court interpret the law in a vacuum, but must instead always do so in the context of a genuine dispute (judgment of 16 December 1981, Foglia, C‑244/80, EU:C:1981:302, paragraph 18) and, accordingly, in relation to the application of provisions, the relevance of which it is for the national court to determine in order to resolve the dispute.

12      Judgment of 1 July 2014, Ålands Vindkraft (C‑573/12, EU:C:2014:2037, paragraph 57 and the case-law cited).

13      Paragraphs 25 to 27 of its observations.

14      In general terms, judgment of 27 April 1994, Almelo (C‑393/92, EU:C:1994:171, paragraph 28).

15      The Romanian Government asserts that the levels of electricity exported from Romania in 2014 and 2016 were 8 200 GWh and 8 587 GWh respectively (paragraph 23 of its observations).

16      Judgment of 16 December 2008, Gysbrechts and Santurel Inter (C‑205/07, EU:C:2008:730; ‘Gysbrechts and Santurel Inter’; paragraph 40). As the Romanian Government notes, that legal thinking dates back to the judgment of 8 November 1979, Groenveld (C‑15/79, EU:C:1979:253, paragraph 7).

17      Judgment of 28 February 2018, ZPT (C‑518/16, EU:C:2018:126, paragraph 43).

18      Romanian electricity producers are deprived of the opportunity to use the markets of other Member States, whether centralised markets or based on bilateral contracts, and are therefore prevented from accessing a high number of potential purchasers and from negotiating more favourable terms of sale (as regards prices and delivery periods, for example).

19      Paragraph 41 of the observations of the Romanian Government.

20      Gysbrechts and Santurel Inter, paragraph 40.

21      Amongst others, Gysbrechts and Santurel Inter, paragraph 45.

22      Amongst others, judgment of 23 December 2015, Scotch Whisky Association and Others (C‑333/14, EU:C:2015:845; ‘Scotch Whisky Association’; paragraphs 53 and 54).

23      Paragraph 36 of its observations.

24      Paragraph 42 of the Commission’s observations. The objective of Law No 123/2012 is, then, according to the Commission, to guarantee market transparency and integrity, preventing direct trading that could arouse fears if there were no competition mechanism in the nature of a regulated centralised platform.

25      Paragraph 37 of the observations of the Romanian Government.

26      Loc. cit., paragraph 41.

27      The Romanian Government cites the judgment of 10 July 1984, Campus Oil and Others (72/83, EU:C:1984:256), which states in paragraph 34 that ‘petroleum products, because of their exceptional importance as an energy source in the modern economy, are of fundamental importance for a country’s existence since not only its economy but above all its institutions, its essential public services and even the survival of its inhabitants depend upon them. An interruption of supplies of petroleum products, with the resultant dangers for the country’s existence, could therefore seriously affect the public security that Article 36 allows States to protect’.

28      Recital 5 of Directive 2009/72 states that ‘a secure supply of electricity is of vital importance for the development of European society, the implementation of a sustainable climate change policy, and the fostering of competitiveness within the internal market. …’.

29      Scotch Whisky Association, paragraphs 37 and 53 and the case-law cited, and judgment of 22 June 2017, EON Biofor Sverige (C‑549/15, EU:C:2017:490, paragraph 90).

30      Scotch Whisky Association, paragraph 54.

31      Article 37(1)(i) of Directive 2009/72.

32      Article 36(a) of Directive 2009/72.

33      Article 38(2)(a) of Directive 2009/72.

34      That task is assisted by the fact that, under Article 7(2), ‘national regulatory authorities shall have access to relevant information held by the Agency’.

35      Paragraph 41 of the observations of the Romanian Government.

36      Recital 2 of Regulation 2015/1222.

© European Union
The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.