# C_2013367EN.01000801.xml

| 14.12.2013 | EN | Official Journal of the European Union | C 367/8 |
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14.12.2013

EN

Official Journal of the European Union

C 367/8

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Judgment of the Court (Grand Chamber) of 22 October 2013 (requests for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staat der Nederlanden v Essent NV and Others,

(Joined Cases C-105/12 to C-107/12) (1)

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(Reference for a preliminary ruling - Free movement of capital - Article 63 TFEU - Rules governing the system of property ownership - Article 345 TFEU - Electricity and gas distribution system operators - Prohibition of privatisation - Prohibition of links with undertakings which generate/produce, supply or trade electricity or gas - Prohibition of activity which may adversely affect system operation)

2013/C 367/12

Language of the case: Dutch

Referring court

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Parties to the main proceedings

Applicant: Staat der Nederlanden

Applicant:

Defendants: Essent NV (C-105/12), Essent Nederland BV (C-105/12), Eneco Holding NV (C-106/12), Delta NV (C-107/12),

Defendants:

Re:

Re:

Requests for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Articles 63 TFEU and 345 TFEU — Restrictions on the free movement of capital — Rules governing the system of property ownership — Meaning — National legislation providing for an absolute prohibition on the privatisation of energy distribution system operators

Operative part of the judgment

Operative part of the judgment

| 1. | Article 345 TFEU must be interpreted as covering rules entailing the prohibition of privatisation, such as those at issue in the main proceedings, which have the effect that shares held in an electricity or gas distribution system operator active in the Netherlands must be held, directly or indirectly, by the public authorities identified by the national legislation. However, that interpretation does not mean that Article 63 TFEU does not apply to provisions of national law, such as those at issue in the main proceedings, which prohibit the privatisation of electricity or gas distribution system operators, or, further, which prohibit, first, ownership or control links between companies which are members of the same group as an electricity or gas distribution system operator active in the Netherlands and companies which are members of the same group as an undertaking which produces, supplies, or trades in electricity or gas in the Netherlands and, secondly, engagement by such an operator and by the group of which it is a member in transactions or activities which may adversely affect the operation of the system concerned. |
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1.

Article 345 TFEU must be interpreted as covering rules entailing the prohibition of privatisation, such as those at issue in the main proceedings, which have the effect that shares held in an electricity or gas distribution system operator active in the Netherlands must be held, directly or indirectly, by the public authorities identified by the national legislation. However, that interpretation does not mean that Article 63 TFEU does not apply to provisions of national law, such as those at issue in the main proceedings, which prohibit the privatisation of electricity or gas distribution system operators, or, further, which prohibit, first, ownership or control links between companies which are members of the same group as an electricity or gas distribution system operator active in the Netherlands and companies which are members of the same group as an undertaking which produces, supplies, or trades in electricity or gas in the Netherlands and, secondly, engagement by such an operator and by the group of which it is a member in transactions or activities which may adversely affect the operation of the system concerned.

| 2. | As regards the rules entailing the prohibition of privatisation at issue in the main proceedings, which falls within the scope of Article 345 TFEU, the objectives which underlie the choice of the legislature in relation to the adopted rules governing the system of property ownership may be taken into consideration as overriding reasons in the public interest to justify the restriction on the free movement of capital. As regards the other prohibitions, the objectives of combating cross-subsidisation in the broad sense, including exchange of strategic information, in order to achieve transparency in the electricity and gas markets, and to prevent distortions of competition may, as overriding reasons in the public interest, justify restrictions on the free movement of capital caused by provisions of national law, such as those at issue in the main proceedings. |
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2.

As regards the rules entailing the prohibition of privatisation at issue in the main proceedings, which falls within the scope of Article 345 TFEU, the objectives which underlie the choice of the legislature in relation to the adopted rules governing the system of property ownership may be taken into consideration as overriding reasons in the public interest to justify the restriction on the free movement of capital. As regards the other prohibitions, the objectives of combating cross-subsidisation in the broad sense, including exchange of strategic information, in order to achieve transparency in the electricity and gas markets, and to prevent distortions of competition may, as overriding reasons in the public interest, justify restrictions on the free movement of capital caused by provisions of national law, such as those at issue in the main proceedings.

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(1)  OJ C 151, 26.05.2012.

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