# C_2016016EN.01001802.xml

| 18.1.2016 | EN | Official Journal of the European Union | C 16/18 |
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18.1.2016

EN

Official Journal of the European Union

C 16/18

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Request for a preliminary ruling from the Conseil d’État (France) lodged on 19 October 2015 — Association nationale des opérateurs détaillants en énergie (ANODE) v Premier ministre, Ministre de l’Écologie, du Développement durable et de l'Énergie

(Case C-543/15)

(2016/C 016/23)

Language of the case: French

Referring court

Referring court

Conseil d’État

Parties to the main proceedings

Parties to the main proceedings

Applicant: Association nationale des opérateurs détaillants en énergie (ANODE)

Applicant:

Defendants: Premier ministre, Ministre de l’Écologie, du Développement durable et de l'Énergie

Defendants:

Question referred

Question referred

Must Articles 34 and 36 of the Treaty on the Functioning of the European Union be interpreted as precluding a capacity mechanism in the electricity sector such as that at issue in the main proceedings which is described in particular in paragraphs 1, 15 and 17 to 19 of the present decision?

In particular:

| a) | Even though the mechanism remunerates capacities only on the basis of their availability, not of their actual production, and having regard to the taking into account of the effects of interconnections in the determination of suppliers’ obligations, which relaxes the causal link between the exclusion of foreign capacities from the mechanism, as laid down by the decree, and the restrictive effect on cross-border electricity trading which could arise therefrom in terms of investors’ resource allocation choices and suppliers’ procurement choices, must Article 34 TFEU be interpreted as precluding such an exclusion measure? |
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a)

Even though the mechanism remunerates capacities only on the basis of their availability, not of their actual production, and having regard to the taking into account of the effects of interconnections in the determination of suppliers’ obligations, which relaxes the causal link between the exclusion of foreign capacities from the mechanism, as laid down by the decree, and the restrictive effect on cross-border electricity trading which could arise therefrom in terms of investors’ resource allocation choices and suppliers’ procurement choices, must Article 34 TFEU be interpreted as precluding such an exclusion measure?

| b) | Having regard to developments in the European legal framework governing the internal market in electricity, is the objective of security of electricity supply for the inhabitants of a Member State capable of being covered by the concept of public security provided for in Article 36 TFEU? |
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b)

Having regard to developments in the European legal framework governing the internal market in electricity, is the objective of security of electricity supply for the inhabitants of a Member State capable of being covered by the concept of public security provided for in Article 36 TFEU?

| c) | Having regard, in particular, to the discretion granted to Member States with respect to defining suitable policies to ensure their security of electricity supply, what criteria may be used to ascertain whether a decentralised market-based capacity mechanism, involving, in the present state of the European electricity market, a measure excluding foreign capacities which is offset by the taking into account of interconnections in the determination of suppliers’ obligations, is capable of satisfying the condition of proportionality required for Article 36 TFEU to apply? |
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c)

Having regard, in particular, to the discretion granted to Member States with respect to defining suitable policies to ensure their security of electricity supply, what criteria may be used to ascertain whether a decentralised market-based capacity mechanism, involving, in the present state of the European electricity market, a measure excluding foreign capacities which is offset by the taking into account of interconnections in the determination of suppliers’ obligations, is capable of satisfying the condition of proportionality required for Article 36 TFEU to apply?

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