# C_2009032EN.01001302.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 5 November 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-475/08)

(2009/C 32/22)

Language of the case: French

Parties

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

Applicant:

Defendant: Kingdom of Belgium

Defendant:

Form of order sought

| — | declare that,
  by failing to designate the systems operators as required under Article 7 of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (1),
  by providing for not only a regulated access but also a negotiated access of third parties to the system contrary to Article 18 of Directive 2003/55/EC, in conjunction with Article 25(2) thereof,
  by failing to transpose Article 22(3)(d) and (e) and (4) of Directive 2003/55/EC,
  the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
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declare that,

by failing to designate the systems operators as required under Article 7 of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (1),

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by providing for not only a regulated access but also a negotiated access of third parties to the system contrary to Article 18 of Directive 2003/55/EC, in conjunction with Article 25(2) thereof,

by failing to transpose Article 22(3)(d) and (e) and (4) of Directive 2003/55/EC,

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

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

Pleas in law and main arguments

The Commission raises three complaints in support of its action.

First, it alleges that the defendant has not designated the systems operators for the transmission and storage of gas and liquefied natural gas terminals, as provided for in Articles 7 and 11 of Directive 2003/55/EC.

It is then alleged that the defendant creates legal uncertainty with regard to new entrants in so far as it gives the impression that the negotiated access to the system is an alternative to the regulated access. However, it is clear from Articles 18 and 25(2) of Directive 2003/55/EC that regulated access is the only possible means of access for third parties to the system and that the regulatory authority alone is responsible for fixing or approving prior to their entry into force, at least the methodologies used to calculate or establish the tariffs.

Finally, the Commission points out that, by exempting new large natural gas facilities from the application of the directive, the defendant has not correctly transposed Article 22(3)(d) of the directive, with respect to the requirement to publish the decision, and Article 22(3)(e) of the directive, concerning the obligation to consult the other Member States or regulatory authorities concerned by the interconnection of those infrastructures. Furthermore, the defendant has not made provision in its national law for the obligation to notify without delay such an exemption decision to the Commission, together with all the other relevant information with respect to that decision, as is provided for in Article 22(4) of the directive.

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(1)  OJ 2003 L 176, p. 57.

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