# C_2009032EN.01001301.xml

| 7.2.2009 | EN | Official Journal of the European Union | C 32/13 |
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7.2.2009

EN

Official Journal of the European Union

C 32/13

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Action brought on 4 November 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-474/08)

(2009/C 32/21)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: M. Patakia and B. Schima, Agents)

Applicant:

Defendant: Kingdom of Belgium

Defendant:

Form of order sought

The applicant claims that the Court should:

| — | declare that,
  by failing to provide that cases of refusal of access to the distribution or transmission network can be submitted to the regulatory authority which will rule by binding decision within two months, in accordance with Article 23(5) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (1),
  by removing certain issues which are decisive for the calculation of tariffs from the competence of the regulatory authority as set out in Article 23(2) of Directive 2003/54/EC,
  the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
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declare that,

by failing to provide that cases of refusal of access to the distribution or transmission network can be submitted to the regulatory authority which will rule by binding decision within two months, in accordance with Article 23(5) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (1),

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by removing certain issues which are decisive for the calculation of tariffs from the competence of the regulatory authority as set out in Article 23(2) of Directive 2003/54/EC,

the Kingdom of Belgium has failed to fulfil its obligations under that directive;

| — | order Kingdom of Belgium to pay the costs. |
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order Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Commission submits, first, that the transposition into Belgian law of Article 23(5) of Directive 2003/54/EC has not been carried out. The relevant provisions of Belgian law relating to the organisation of the electricity market are in fact so general that they do not enable it to be ascertained with any certainty whether there is an individual right of action against decisions to refuse access to the electricity distribution or transmission network. Those provisions do not set out an exact procedural framework and do not provide for a time-limit as regards the response of the regulatory authority, in this case the Commission nationale de régulation de l'électricité (National Commission for the Regulation of Electricity; CRE).

The applicant secondly alleges that the defendant has infringed Article 23(2) of Directive 2003/54/EC in so far as it confers on the Crown, that is an authority other than the CRE, the power to set specific rules concerning the provision for depreciation and the profit margin relating to investments in the national interest and in European interest. That procedure is not compatible with the aforementioned article, since the regulatory authority does not seem to have any control in either of those situations over the methodology used to calculate or establish the tariffs for transmission and distribution.

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(1)  OJ L 176, p. 37.

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