CELEX: 62018CJ0578
Reference for a preliminary ruling
Internal market in electricity
Directive 2009/72/EC
Article 3
Consumer protection
Article 37
Tasks and powers of the regulatory authority
Out-of-court dispute settlement
Concept of ‘party’
Right to appeal against a decision of the regulatory authority
Complaint made by a household customer against an electricity distribution system operator

This reference for a preliminary ruling concerns the interpretation of Article 37 of Directive 2009/72/EC 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
).
The request was made in the context of proceedings brought by the Energiavirasto (Energy Authority, Finland), concerning the refusal of that authority to grant A the status of party to the proceedings against Caruna Oy, an electricity distribution system operator, following a complaint lodged by A.
Legal context
European Union law
Recitals 37, 42, 51 and 54 of Directive 2009/72 state:
‘(37)
… Energy regulators should also be granted the power to [ensure] … the full effectiveness of consumer protection measures. …
(42)
All [EU] industry and commerce, including small and medium-sized enterprises, and all citizens of the Union that enjoy the economic benefits of the internal market should also be able to enjoy high levels of consumer protection, and in particular household customers … Those customers should also have access to choice, fairness, representation and dispute settlement mechanisms.
…
(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 [European Union] benefit from a competitive market. Consumer rights should be enforced by Member States or, where a Member State has so provided, the regulatory authorities.
…
(54)
Greater consumer protection is guaranteed by the availability of effective means of dispute settlement for all consumers. Member States should introduce speedy and effective complaint-handling procedures.’
Article 1 of that directive is worded as follows:
‘This directive establishes common rules for the generation, transmission, distribution and supply of electricity, together with consumer protection provisions, with a view to improving and integrating competitive electricity markets in the [European Union]. … It also lays down universal service obligations and the rights of electricity consumers and clarifies competition requirements.’
Article 2 of that directive, entitled ‘Definitions’, states, inter alia, that, ‘for the purposes of this directive, the following definitions apply: … “household customer” means a customer purchasing electricity for his own household consumption, excluding commercial or professional activities’.
Article 3 of the directive, entitled ‘Public service obligations and customer protection’, provides:
‘…
7.   Member States shall take appropriate measures to protect final customers, and shall, in particular, ensure that there are adequate safeguards to protect vulnerable customers. … They shall ensure high levels of consumer protection, particularly with respect to transparency regarding contractual terms and conditions, general information and dispute settlement mechanisms. … As regards at least household customers those measures shall include those set out in Annex I.
…
13.   Member States shall ensure that an independent mechanism such as an energy ombudsman or a consumer body is in place in order to ensure efficient treatment of complaints and out-of-court dispute settlements.’
Article 36 of Directive 2009/72, entitled ‘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:
…
(g)
… helping to ensure consumer protection;
…’
Article 37 of that directive, entitled ‘Duties and powers of the regulatory authority’, provides:
‘1.   The regulatory authority shall have the following duties:
…
(b)
ensuring compliance of transmission and distribution system operators and, where relevant, system owners, as well as of any electricity undertakings, with their obligations under this directive and other relevant [EU] legislation, including as regards cross-border issues;
…
(j)
monitoring … complaints by household customers …;
…
(n)
helping to ensure, together with other relevant authorities, that the consumer protection measures, including those set out in Annex I, are effective and enforced;
…
2.   Where a Member State has so provided, the monitoring duties set out in paragraph 1 may be carried out by other authorities than the regulatory authority. In such a case, the information resulting from such monitoring shall be made available to the regulatory authority as soon as possible.
…
3.   In addition to the duties conferred upon it under paragraph 1 of this article, when an independent system operator has been designated under Article 13, the regulatory authority shall:
…
(b)
… act as a dispute settlement authority between the independent system operator and the transmission system owner in respect of any complaint submitted by either party pursuant to paragraph 11;
…
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:
…
(e)
appropriate rights of investigations and relevant powers of instructions for dispute settlement under paragraphs 11 and 12.
5.   In addition to the duties and powers conferred on it under paragraphs 1 and 4 of this article, when a transmission system operator has been designated in accordance with Chapter V, the regulatory authority shall be granted at least the following duties and powers:
…
(c)
to act as dispute settlement authority between the vertically integrated undertaking and the transmission system operator in respect of any complaint submitted pursuant to paragraph 11;
…
11.   Any party having a complaint against a transmission 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. This period may be extended by two months where additional information is sought by the regulatory authorities. This period may be extended with the agreement of the complainant. The regulatory authority’s decision shall have binding effect unless and until overruled on appeal.
12.   Any party who is affected and who has a right to complain concerning a decision on methodologies taken pursuant to this Article or, where the regulatory authority has a duty to consult, concerning the proposed tariffs or methodologies, may, at the latest within two months, or a shorter time period as provided by Member States, following publication of the decision or proposal for a decision, submit a complaint for review. Such a complaint shall not have suspensive effect.
…
15.   Complaints referred to in paragraphs 11 and 12 shall be without prejudice to the exercise of rights of appeal under [EU] or national law.
16.   Decisions taken by regulatory authorities shall be fully reasoned and justified to allow for judicial review. The decisions shall be available to the public while preserving the confidentiality of commercially sensitive information.
17.   Member States shall ensure that suitable mechanisms exist at national level under which a party affected by a decision of a regulatory authority has a right of appeal to a body independent of the parties involved and of any government.’
Annex I to Directive 2009/72 contains measures relating to consumer protection. It is apparent, in particular, from point 1(d) of that annex that the measures referred to in Article 3 of the directive are intended to enable customers to choose between different payment methods which do not unduly discriminate between them. In addition, point 1(f) of that annex specifies that the measures referred to in Article 3 of the directive are intended to ensure that customers ‘benefit from transparent, simple and inexpensive procedures for dealing with their complaints. In particular, all consumers shall have the right to a good standard of service and complaint handling by their electricity service provider. Such out-of-court dispute settlements procedures shall enable disputes to be settled fairly and promptly, preferably within three months, with provision, where warranted, for a system of reimbursement and/or compensation. They should, wherever possible, be in line with the principles set out in Commission Recommendation 98/257/EC of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes [(
OJ 1998 L 115, p. 31
)]’.
Finnish law
By virtue of Paragraph 5 of the laki sähkö- ja maakaasumarkkinoiden valvonnasta annetu (590/2013) (Law on the supervision of electricity and natural gas markets (590/2013); ‘the Supervision Law’), the Energiavirasto is responsible for monitoring the application of the national and EU legislative and administrative provisions referred to in Paragraph 2 of that law and for carrying out the other tasks entrusted to it under the rules set out in Paragraph 2 thereof.
Under point 13 of the first subparagraph of Paragraph 6 of the Supervision Law, the Energiavirasto has the task of contributing, in its activity as the national regulatory authority within the meaning of the EU legal provisions concerning the electricity and natural gas sectors, to ensuring efficiency and enforcement of consumer protection measures concerning the electricity and natural gas markets.
Paragraph 57(2) of the sähkömarkkinalaki (588/2013) (Law on the electricity market (588/2013); ‘the Electricity Market Law’) provides that a distribution system operator must offer consumers different means of payment to pay their electricity bills. The alternatives offered may not include unjustified conditions or conditions discriminating between different customer groups.
Paragraph 106(2) of the Electricity Market Law provides that the Energiavirasto is responsible for monitoring compliance with that law and the legal and administrative provisions issued on the basis thereof, as well as compliance with the approval decisions issued on the basis of that law. Under that provision, supervision is regulated separately in the Supervision Law. Pursuant to Paragraph 106(4) of the Electricity Market Law, the Kuluttaja-asiamies (Consumer Ombudsman, Finland) monitors the legality of clauses of the contracts referred to in Chapter 13 of the Electricity Market Law (electricity contracts) from the perspective of consumer protection.
Paragraph 114 of the Electricity Market Law provides that an appeal against a decision of the Energiavirasto on the basis of the Electricity Market Law may be lodged in accordance with the procedures laid down in the Hallintolainkäyttölaki (586/1996) (Administrative Court Procedures Code (586/1996); ‘the Administrative Court Procedures Code’). Paragraph 5(1), of that code provides that ‘decision subject to appeal’ means ‘an act by which a case is decided on the merits or considered inadmissible’, while Paragraph 6(1) of the code provides that an appeal against a decision may be brought by the person to whom it is addressed or by a person whose rights, obligations or interests are directly affected by it.
The dispute in the main proceedings and the questions referred for a preliminary ruling
A, who is a household customer, concluded a contract for electricity transmission with an electricity distribution system operator, which became Caruna. On 5 September 2013, A sent a request by email to the then energy market authority (now Energiavirasto), to request it to ascertain whether the invoicing method followed by that company was in line with the Electricity Market Law, in particular with Paragraph 57(2) of that law, providing that the distribution system operator must offer consumers different means of payment to pay their electricity bills, in compliance with Annex I, point 1(d) of Directive 2009/72. After having examined the lawfulness of that invoicing method, the Energiavirasto took a decision, on 31 March 2014, according to which Caruna had not infringed Paragraph 57(2) of the Electricity Market Law and that there was no reason to take any measures. In that decision, A was designated as a ‘person requesting an investigation’.
By a decision of 28 April 2014, the Energiavirasto rejected A’s complaint against that decision of 31 March 2014 as inadmissible, as well as A’s request to be granted the status of a party to the proceedings. A then brought an appeal before the Helsingin hallinto-oikeus (Administrative Court, Helsinki, Finland) seeking the grant of the status of a party to the proceedings in the case before the Energiavirasto, annulment of the decisions adopted by that authority on 31 March and 28 April 2014 and referral of the case back to that authority for a further decision. By a judgment of 23 May 2016, those requests were granted.
The Energiavirasto appealed against that judgment to the referring court, the Korkein hallinto-oikeus (Supreme Administrative Court, Finland), arguing that the fact that A had requested an investigation did not confer on him the status of a party to the decision taken by it or the right to appeal to the courts against that decision.
The referring court states that it must decide whether A had the right to appeal to a national court against the decision of the Energiavirasto not to adopt measures against the distribution system operator.
It points out that the case-law of the national courts supports the Energiavirasto’s position that, in the main proceedings, A had the status only of the person initiating the procedure and was not entitled to bring an action before the courts against the decision of that authority.
However, in the absence of case-law of the Court and a definition of the concept of ‘party’ in Directive 2009/72, it asks whether Article 37 of that directive must be interpreted as meaning that a household customer of a distribution system operator who considers himself, as a consumer, to have been harmed by reason of the invoicing method used by that undertaking and who complains to the regulatory authority may be classified as a ‘party’, within the meaning of that provision, and may bring an appeal before a court against the decision, adopted by that authority, not to adopt measures against that undertaking.
In those circumstances the Korkein hallinto-oikeus (Supreme Administrative Court) decided to stay the proceedings before it and to refer the following questions to the Court for a preliminary ruling:
‘(1)
Is Article 37 of Directive 2009/72 … to be interpreted as meaning that a person who is a consumer customer of a system operator and who has brought a case concerning the system operator before the national regulatory authority is to be regarded as an “affected party” within the meaning of paragraph 17 of the article referred to, which is affected by the decision of the regulatory authority and is therefore authorised to file an appeal at a national court against a decision affecting the system operator made by the national regulatory authority?
(2)
If the person designated in the first question is not to be regarded as an “affected party” within the meaning of Article 37 of Directive 2009/72, does a consumer customer in a position such as that of the appellant in the main proceedings have a right on any other legal basis under EU law to be involved before the regulatory authority in the treatment of a request made thereby for the introduction of a measure or to have the case reviewed by a national court, or is this question governed by national law?’
Consideration of the questions referred
By its two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 37 of Directive 2009/72 must be interpreted as requiring Member States to confer on the regulatory authority the power to settle disputes between household customers and distribution system operators and, in consequence, to grant to a household customer, who has lodged a complaint with that authority against a distribution system operator, the status of ‘party’ within the meaning of that provision and the right to appeal against the decision taken by that authority following that complaint.
Article 1 of Directive 2009/72 states that that directive seeks to establish common rules for the generation, transmission, distribution and supply of electricity, together with consumer protection provisions, with a view to improving and integrating competitive electricity markets in the European Union. In that context, Article 3 of that directive lays down, in particular, the obligations of the Member States with regard to consumer protection, including those relating to the handling of complaints and out-of-court dispute settlement, while Article 37 thereof defines the tasks and powers of the regulatory authority.
In accordance with the settled case-law of the Court, when interpreting a provision of EU law, regard must be had not only to its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgments of 19 July 2012, A,
C‑33/11
,
EU:C:2012:482
, paragraph
, and of 15 March 2017, Al Chodor,
C‑528/15
,
EU:C:2017:213
, paragraph
).
In the present case, with regard to the wording of Article 37 of Directive 2009/72, it must be noted that the tasks and powers with which the national regulatory authority must at least be entrusted pursuant to Article 37(4)(e) and (5)(c) of that directive include appropriate rights of investigation and relevant powers of [investigation] for dispute settlement, in accordance with Article 37(11) and (12) of that directive and the task of acting as a dispute settlement authority between the vertically integrated undertaking and the transmission system operator following any complaint submitted under Article 37(11) of that directive.
The latter provision provides that any party having a complaint against a transmission or distribution system operator in relation to that operator’s obligations under that directive may refer the complaint to the regulatory authority which, acting as the dispute settlement authority, is to issue a decision within a period of two months after receipt of the complaint. The decision of that authority is to have binding effect unless and until overruled on appeal. Article 37(12) of Directive 2009/72 provides for a procedure allowing any party affected who has a right to complain concerning a decision on methodologies taken pursuant to Article 37 of that directive, or, where the regulatory authority has a duty to consult, concerning the proposed tariffs or methodologies, to submit a complaint for review.
Furthermore, Article 37(15) to (17) of Directive 2009/72 provides, in particular, that the complaints referred to in paragraphs 11 and 12 of that article are to be without prejudice to the exercise of rights of appeal under EU or national law, that decisions taken by regulatory authorities are to be fully reasoned and justified to allow for judicial review and that Member States are to ensure that suitable mechanisms exist at national level under which a party affected by a decision of a regulatory authority has a right of appeal to a body independent of the parties involved and of any government.
It is clear from all those provisions that the regulatory authority has the power of an out-of-court dispute resolution body when dealing with a complaint under Article 37(11) and (12) of Directive 2009/72 and that the parties to such disputes have the right to appeal against the decision taken by that authority following such a complaint if it is unfavourable to them.
However, it must be noted that these provisions do not specify whether this competence includes the competence to hear disputes between household customers and system operators, and that the notion of ‘party’ or ‘party affected’ in Article 37 of Directive 2009/72 is not defined by that provision, so that the wording of Article 37 does not make it possible to determine whether that concept includes a residential customer who has lodged a complaint against a system operator for breach of the provisions of that directive and, consequently, whether that type of dispute falls within the competence for out-of-court dispute resolution to be conferred by the Member States on the regulatory authority.
In that regard, it must be observed, in the first place, that Article 37(1)(b) of Directive 2009/72, giving the regulatory authority the task of ensuring that transmission and distribution system operators and, where appropriate, the system owners and electricity undertakings, comply with their obligations under that directive and other applicable EU legislation, does not refer to the competence of the regulatory authority to settle disputes.
In the second place, there is no provision in Article 37 of Directive 2009/72 which refers to the regulatory authority’s competence to settle disputes between household customers and system operators. That is particularly the case of Article 37(3)(b), which expressly refers to disputes between an independent system operator and a transmission system owner; Article 37(4)(e), which provides for investigation rights, and Article 37(5)(c), which concerns disputes between the vertically integrated undertaking and the transmission system operator.
In the third place, Article 37(1)(j) of Directive 2009/72 gives the regulatory authority the task of monitoring complaints from household customers and Article 37(1)(n) of Directive 2009/72, gives it the task, in cooperation with other competent authorities, of helping to ensure the effectiveness and implementation of consumer protection measures, including those set out in Annex I to that directive. Article 37(2) of that directive provides that, where a Member State has so provided, the monitoring duties set out in paragraph 1 may be carried out by authorities other than the regulatory authority.
As regards the context of Article 37 of Directive 2009/72 and the objective pursued by the legislation of which it forms part, it must be noted, in the first place, that recitals 42, 51 and 54 of that directive state that household customers are to have access to dispute settlement mechanisms, that consumer interests should be at the heart of that directive, that the Member States or, if a Member State so provides, the regulatory authorities, must ensure that the rights of consumers are enforced, that effective means of dispute settlement available to all consumers guarantee greater consumers protection and that the Member States should introduce speedy and effective complaint-handling procedures.
In the second place, as recalled in paragraph 23 of this judgment, the purpose of Directive 2009/72 is, in particular, in accordance with Article 1 thereof, to lay down provisions on consumer protection and to define the rights of electricity consumers. Thus, Article 3 of that directive lays down the obligations of the Member States in order to ensure consumer protection. Article 3(7) requires them to ensure a high level of consumer protection, particularly as regards dispute settlement mechanisms. The measures to be taken by Member States in that regard pursuant to that provision and Annex I to the directive, to which it refers, are intended to ensure, under point 1(f) of that annex, that customers benefit from transparent, simple and inexpensive procedures for dealing with their complaints, such out-of-court dispute settlement procedures being designed to ensure fair and prompt settlement of disputes. To that end, Article 3(13) of Directive 2009/72 requires Member States to ensure that an independent mechanism such as an energy ombudsman or a consumer body is in place in order to ensure efficient treatment of complaints and out-of-court dispute settlements.
In the third place, as regards the regulatory authority, recital 37 of Directive 2009/72 states that energy regulators should be given the power to ensure the full effect of consumer protection measures. Article 36 of that directive, which defines the general objectives of that authority, provides that it must take all reasonable measures in pursuit of the objectives set out in that article, within the framework of its tasks and powers as defined in Article 37 of the directive, in close consultation, where appropriate, with other relevant national authorities, without prejudice to their competencies. Those objectives include, in Article 36(g) of the directive, helping to ensure consumer protection.
It does not follow from any of the provisions of Directive 2009/72 referred to in paragraphs 34 and 35 above, or from any other provision of that directive, that the Member States are required to confer on the regulatory authority, to the exclusion of any other authority, competence for the out-of-court settlement of disputes between household customers and electricity undertakings, in particular the system operators.
On the contrary, first, recital 51 and Article 36(g) of Directive 2009/72 confirm that the objective which it assigns to the regulatory authority, as the Advocate General observed in point 42 of his Opinion, is to help, in cooperation with other competent authorities, to ensure the effectiveness and implementation of measures to protect consumers, including the handling of complaints, and that Member States may entrust tasks relating to consumer rights to either the regulatory authority or other authorities.
Second, with regard more specifically to the obligation of Member States to set up an independent mechanism for the effective handling of complaints and out-of-court dispute settlement, Article 3(13) of Directive 2009/72, with the use of the words ‘such as an energy ombudsman or a consumer body’, expressly states that the choice of authority responsible for settling disputes between consumers and electricity undertakings is a matter for the Member States.
It follows from all those findings that Member States may confer jurisdiction for out-of-court dispute settlement between household customers and electricity undertakings on an authority other than the regulatory authority, provided that, in accordance with recital 54 and Article 3(7) and (13) of Directive 2009/72 and in point 1(f) of Annex I thereto, the designated authority is independent and exercises that competence by implementing rapid, effective, transparent, simple and inexpensive procedures for the handling of complaints, enabling disputes to be settled fairly and promptly.
It is also open to Member States to confer that competence on the regulatory authority, since the expression ‘the regulatory authority shall have at least the following powers’, used in Article 37(4) of Directive 2009/72, indicates that powers other than those expressly mentioned in Article 37 of that directive may be attributed to it. Where the Member State chooses to entrust that competence to the regulatory authority, it is clear from Article 37(11), (16) and (17) of that directive that it must be recognised that a household customer has the status of a party and the right to bring legal proceedings against the decision of the regulatory authority.
In the present case, the referring court, the Energiavirasto and the Finnish Government have stated that the national body competent to deal with consumer complaints against an electricity undertaking is the kuluttajariitalautakunta (Consumer Disputes Commission, Finland), before which complainants have the status of party. In addition, consumers may file a complaint with the Consumer Ombudsman, before whom consumers do not, however, have the status of party. As follows from paragraph 39 of this judgment, such a mechanism is not contrary to Directive 2009/72, provided that the extrajudicial authority thus designated is independent and exercises that competence by implementing rapid, effective, transparent, simple and inexpensive procedures for dealing with complaints, allowing disputes to be settled fairly and promptly.
The Energiavirasto and the Finnish Government have also stated that Finnish legislation requires that authority to process requests for investigations addressed to it and that the status of the requester is not that of a party, but that of an informant, which allows the regulatory authority to carry out its supervisory role. During the hearing before the Court, the Finnish Government made it clear that any decision taken by that authority in that context is not binding on other public authorities. Such a solution does not appear to run counter to the obligations imposed on Member States by Directive 2009/72, since it is likely to enable the regulatory authority to carry out the supervisory and monitoring tasks assigned to it under Article 37 of that directive, without prejudice to the consumer rights laid down in that directive and, in particular, to consumers’ right to benefit from out-of-court dispute settlement procedures meeting the requirements set out in the previous paragraph of this judgment.
In the light of all the foregoing considerations, the answer to the questions referred is that Article 37 of Directive 2009/72 must be interpreted as meaning that it does not require Member States to confer competence on the regulatory authority to settle disputes between household customers and system operators and, consequently, to grant household customers who have lodged a complaint with the regulatory authority against a system operator the status of ‘party’ within the meaning of that provision, and the right to appeal against the decision taken by that authority following that complaint.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fifth Chamber) hereby rules:

Article 37 of Directive 2009/72/EC 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 must be interpreted as meaning that it does not require Member States to confer competence on the regulatory authority to settle disputes between household customers and system operators and, consequently, to grant household customers who have lodged a complaint with the regulatory authority against a system operator the status of ‘party’ within the meaning of that provision, and the right to appeal against the decision taken by that authority following that complaint.

[Signatures]
(
*1
)	Language of the case: Finnish.