# C_2023127EN.01001503.xml

| 11.4.2023 | EN | Official Journal of the European Union | C 127/15 |
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11.4.2023

EN

Official Journal of the European Union

C 127/15

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Request for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 30 December 2022 — Solvay Sodi AD v Zamestnik-predsedatel na Darzhavna agentsia ‘Darzhaven rezerv i voennovremenni zapasi’

(Case C-784/22)

(2023/C 127/19)

Language of the case: Bulgarian

Referring court

Administrativen sad Varna

Parties to the main proceedings

Applicant: Solvay Sodi AD

Defendant: Zamestnik-predsedatel na Darzhavna agentsia ‘Darzhaven rezerv i voennovremenni zapasi’

Questions referred

| 1) | In a case such as that in the main proceedings, in which a Member State opts to impose stockholding obligations on economic operators in order to comply with its obligation under Article 3 of Directive 2009/119, (1) must the concept of ‘economic operator’ in Article 8 of Directive 2009/119 be interpreted as including a company established in the national territory which, during the preceding calendar year, imported one of the energy products listed in Chapter 3.4 of Annex A to Regulation (EC) No 1099/2008 (2)
  (in the present case: petroleum coke) into the territory of the Member State, if it uses that energy product solely as a fuel and not as a raw material for manufacturing petroleum products and does not offer it for sale on the market for crude oil and petroleum products? |
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1)

In a case such as that in the main proceedings, in which a Member State opts to impose stockholding obligations on economic operators in order to comply with its obligation under Article 3 of Directive 2009/119, (1) must the concept of ‘economic operator’ in Article 8 of Directive 2009/119 be interpreted as including a company established in the national territory which, during the preceding calendar year, imported one of the energy products listed in Chapter 3.4 of Annex A to Regulation (EC) No 1099/2008 (2)
  (in the present case: petroleum coke) into the territory of the Member State, if it uses that energy product solely as a fuel and not as a raw material for manufacturing petroleum products and does not offer it for sale on the market for crude oil and petroleum products?

| 2) | What circumstances must a Member State take into account in its legislation when determining the status of a person as an ‘economic operator’ which is subject to the stockholding obligations? In determining what constitutes an ‘economic operator’ within the meaning of Article 8 of Directive 2009/119, must the Member State take into account, in particular, the economic activity of a company in the sense that it must include the importation, trade or use of the petroleum product concerned in order for it to be possible to oblige the company to maintain emergency stocks of that product? |
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2)

What circumstances must a Member State take into account in its legislation when determining the status of a person as an ‘economic operator’ which is subject to the stockholding obligations? In determining what constitutes an ‘economic operator’ within the meaning of Article 8 of Directive 2009/119, must the Member State take into account, in particular, the economic activity of a company in the sense that it must include the importation, trade or use of the petroleum product concerned in order for it to be possible to oblige the company to maintain emergency stocks of that product?

| 3) | In a case such as that in the main proceedings — in which a Member State expressly limits, by means of a statutory provision (Article 2(1) of the Zakon za zapasite ot neft i neftoprodukti (Law on stocks of crude oil and petroleum products; ‘the ZZNN’)), the types of petroleum products to be stocked, maintained, replaced, used, replenished and inspected to the following four categories: 1. motor gasoline; 2. gas oils, kerosene-type jet fuels and diesel fuel; 3. heavy fuel oil; 4. liquefied petroleum gas — is it permissible for that Member State, in determining the group of economic operators which are required to maintain stocks and in determining the quantities of stocks which those economic operators are required to maintain, also to include importers of (all the) other petroleum products referred to in Chapter 3.4 of Annex A to Regulation (EC) No 1099/2008? |
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3)

In a case such as that in the main proceedings — in which a Member State expressly limits, by means of a statutory provision (Article 2(1) of the Zakon za zapasite ot neft i neftoprodukti (Law on stocks of crude oil and petroleum products; ‘the ZZNN’)), the types of petroleum products to be stocked, maintained, replaced, used, replenished and inspected to the following four categories: 1. motor gasoline; 2. gas oils, kerosene-type jet fuels and diesel fuel; 3. heavy fuel oil; 4. liquefied petroleum gas — is it permissible for that Member State, in determining the group of economic operators which are required to maintain stocks and in determining the quantities of stocks which those economic operators are required to maintain, also to include importers of (all the) other petroleum products referred to in Chapter 3.4 of Annex A to Regulation (EC) No 1099/2008?

| 4) | Is national legislation compatible with the objective of Directive 2009/119 referred to in Article 1 and recitals 3, 17 and 33 of that directive and with Article 20(1) of that directive (under which Member States are required to ensure that some or all of their emergency stocks can be released quickly, effectively and transparently) and with Article 16 of the Charter of Fundamental Rights of the European Union (‘freedom to conduct a business’) where, under that national legislation, an economic operator which does not import, buy, sell, use for processing purposes or otherwise use in its own production processes a particular petroleum product of which the Member State wishes to maintain emergency stocks in order to comply with its obligation under Article 3 of Directive 2009/119 (in the present case: heavy fuel oil) is obliged to establish stocks of that very petroleum product (heavy fuel oil), whereby, in order to comply with its obligation, the economic operator must operate on a market for petroleum products (in the present case: for heavy fuel oils) which is alien to its economic activity and must establish stocks of products for which it has no use and which it does not use for its activities? |
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4)

Is national legislation compatible with the objective of Directive 2009/119 referred to in Article 1 and recitals 3, 17 and 33 of that directive and with Article 20(1) of that directive (under which Member States are required to ensure that some or all of their emergency stocks can be released quickly, effectively and transparently) and with Article 16 of the Charter of Fundamental Rights of the European Union (‘freedom to conduct a business’) where, under that national legislation, an economic operator which does not import, buy, sell, use for processing purposes or otherwise use in its own production processes a particular petroleum product of which the Member State wishes to maintain emergency stocks in order to comply with its obligation under Article 3 of Directive 2009/119 (in the present case: heavy fuel oil) is obliged to establish stocks of that very petroleum product (heavy fuel oil), whereby, in order to comply with its obligation, the economic operator must operate on a market for petroleum products (in the present case: for heavy fuel oils) which is alien to its economic activity and must establish stocks of products for which it has no use and which it does not use for its activities?

| 5) | Is national legislation such as that at issue in the present case compatible with the fundamental freedom of free movement of goods under EU law, and in particular with Articles 30 and 34 TFEU, where it imposes on persons who import energy products other than liquid fuels (in the present case: petroleum coke) onto the Bulgarian market the obligation to establish and maintain emergency stocks of petroleum products (liquid fuels such as fuel oil/heavy fuel oil, gasoline, gas/diesel oil) which are not the object of their economic activity (which they neither import nor process nor trade in), for which they have no storage capacity and which, in order to fulfil their stockholding obligations, they must borrow or purchase from other private undertakings operating in the oil industry, with the result that they are required to enter and operate on the market for petroleum products[?] |
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5)

Is national legislation such as that at issue in the present case compatible with the fundamental freedom of free movement of goods under EU law, and in particular with Articles 30 and 34 TFEU, where it imposes on persons who import energy products other than liquid fuels (in the present case: petroleum coke) onto the Bulgarian market the obligation to establish and maintain emergency stocks of petroleum products (liquid fuels such as fuel oil/heavy fuel oil, gasoline, gas/diesel oil) which are not the object of their economic activity (which they neither import nor process nor trade in), for which they have no storage capacity and which, in order to fulfil their stockholding obligations, they must borrow or purchase from other private undertakings operating in the oil industry, with the result that they are required to enter and operate on the market for petroleum products[?]

| 6) | Is the principle of proportionality respected and, in particular, is the necessary balance between the public interest and the individual interest achieved where an economic operator which does not import, purchase, sell, process or otherwise use for its production processes the petroleum product designated in respect of that economic operator (in the present case: heavy fuel oil) is subject to the obligation to establish and maintain emergency stocks of that petroleum product in a substantial quantity which exceeds the Member State’s average annual consumption of that product (heavy fuel oil) and, in order to comply with that obligation, the economic operator is required to incur substantial expenditure which jeopardises its economic and financial stability and exposes it to a significant risk of enforcement proceedings against its assets? |
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6)

Is the principle of proportionality respected and, in particular, is the necessary balance between the public interest and the individual interest achieved where an economic operator which does not import, purchase, sell, process or otherwise use for its production processes the petroleum product designated in respect of that economic operator (in the present case: heavy fuel oil) is subject to the obligation to establish and maintain emergency stocks of that petroleum product in a substantial quantity which exceeds the Member State’s average annual consumption of that product (heavy fuel oil) and, in order to comply with that obligation, the economic operator is required to incur substantial expenditure which jeopardises its economic and financial stability and exposes it to a significant risk of enforcement proceedings against its assets?

| 7) | Is national legislation such as that at issue in the main proceedings compatible with Article 1 of Directive 2009/119, in conjunction with Article 2(i) and (j), Article 3(1) and Article 20(1), (3) and (5) thereof, where it provides that emergency stocks are to be established in respect only of certain liquid petroleum products (gasoline, kerosene, gas/diesel oil, fuel oil and liquefied petroleum gas), but economic operators are also obliged to establish and maintain such stocks where they use other types of energy products within the meaning of Chapter 3.4 of Annex A to Regulation (EC) No 1099/2008 by way of importation or intra-Community acquisition (in the present case: petroleum coke), with the result that those economic operators are obliged to hold stocks of the types of product referred to in the national law but would have no possibility in the future of using those emergency stocks because they do not use the energy products concerned? |
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7)

Is national legislation such as that at issue in the main proceedings compatible with Article 1 of Directive 2009/119, in conjunction with Article 2(i) and (j), Article 3(1) and Article 20(1), (3) and (5) thereof, where it provides that emergency stocks are to be established in respect only of certain liquid petroleum products (gasoline, kerosene, gas/diesel oil, fuel oil and liquefied petroleum gas), but economic operators are also obliged to establish and maintain such stocks where they use other types of energy products within the meaning of Chapter 3.4 of Annex A to Regulation (EC) No 1099/2008 by way of importation or intra-Community acquisition (in the present case: petroleum coke), with the result that those economic operators are obliged to hold stocks of the types of product referred to in the national law but would have no possibility in the future of using those emergency stocks because they do not use the energy products concerned?

| 8) | Is a system of penalties for breaches of the national rules on the obligation to establish emergency stocks which provides that economic operators which breach the obligation to establish emergency stocks are to be subject to a fine in a significant amount per tonne of the quantities to be stocked which are the subject of the breach, before a court has ruled on the lawfulness of the administrative act imposing the obligation to maintain emergency stocks, consistent with the principles of effectiveness, proportionality and dissuasiveness in accordance with recital 11 and Article 21 of Directive 2009/119?
  Is a Member State required to provide, in its national system of penalties, for the duty of the competent authority to examine each separate breach individually and, in determining the amount of the specific fine, to take into account all the facts and circumstances relevant to the breach and the possible consequences of the breach in the light of the objective of the law, including the circumstance that the failure to comply with the obligation to establish and maintain emergency stocks is due to the fact that the Member State does not have the storage capacity needed to stock the stipulated quantities of the product concerned (heavy fuel oil) and that, in order to comply with the obligation imposed on it, the economic operator is required to incur substantial expenditure which jeopardises its financial stability and exposes it to the risk of enforcement proceedings? |
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8)

Is a system of penalties for breaches of the national rules on the obligation to establish emergency stocks which provides that economic operators which breach the obligation to establish emergency stocks are to be subject to a fine in a significant amount per tonne of the quantities to be stocked which are the subject of the breach, before a court has ruled on the lawfulness of the administrative act imposing the obligation to maintain emergency stocks, consistent with the principles of effectiveness, proportionality and dissuasiveness in accordance with recital 11 and Article 21 of Directive 2009/119?

Is a Member State required to provide, in its national system of penalties, for the duty of the competent authority to examine each separate breach individually and, in determining the amount of the specific fine, to take into account all the facts and circumstances relevant to the breach and the possible consequences of the breach in the light of the objective of the law, including the circumstance that the failure to comply with the obligation to establish and maintain emergency stocks is due to the fact that the Member State does not have the storage capacity needed to stock the stipulated quantities of the product concerned (heavy fuel oil) and that, in order to comply with the obligation imposed on it, the economic operator is required to incur substantial expenditure which jeopardises its financial stability and exposes it to the risk of enforcement proceedings?

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(1)  Council Directive 2009/119/EC of 14 September 2009 imposing an obligation on Member States to maintain minimum stocks of crude oil and/or petroleum products (OJ 2009 L 265, p. 9).

(2)  Regulation (EC) No 1099/2008 of the European Parliament and of the Council of 22 October 2008 on energy statistics (OJ 2008 L 304, p. 1).

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