# C_2022119EN.01000801.xml

| 14.3.2022 | EN | Official Journal of the European Union | C 119/8 |
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14.3.2022

EN

Official Journal of the European Union

C 119/8

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Judgment of the Court (Fifth Chamber) of 27 January 2022 (request for a preliminary ruling from the Curtea de Apel Bucureşti — Romania) — Fondul Proprietatea SA v Guvernul României, SC Complexul Energetic Hunedoara SA, in liquidation, SC Complexul Energetic Oltenia SA and Compania Naţională de Transport al Energiei Electrice ‘Transelectrica’ SA

(Case C-179/20) (1)

(Reference for a preliminary ruling - Internal market in electricity - Directive 2009/72/EC - Article 15(4) - Priority dispatch - Security of supply - Article 32(1) - Free third-party access - Guaranteed access to transmission systems - Directive 2009/28/EC - Article 16(2) - Guaranteed access - Article 107(1) TFEU - Article 108(3) TFEU - State aid)

(2022/C 119/11)

Language of the case: Romanian

Referring court

Curtea de Apel Bucureşti

Parties to the main proceedings

Applicant: Fondul Proprietatea SA

Defendants: Guvernul României, SC Complexul Energetic Hunedoara SA, in liquidation, SC Complexul Energetic Oltenia SA and Compania Naţională de Transport al Energiei Electrice ‘Transelectrica’ SA

Intervener: Ministerul Economiei, Energiei și Mediului de Afaceri

Operative part of the judgment

| 1. | Article 32(1) of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC must be interpreted as not precluding a Member State from granting certain electricity producers whose installations use indigenous primary energy fuel sources a right of guaranteed access to transmission systems in order to ensure security of electricity supply, provided that that right of guaranteed access is based on objective and reasonable criteria and is proportionate to the legitimate aim pursued, which it is for the referring court to ascertain. |
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1.

Article 32(1) of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC must be interpreted as not precluding a Member State from granting certain electricity producers whose installations use indigenous primary energy fuel sources a right of guaranteed access to transmission systems in order to ensure security of electricity supply, provided that that right of guaranteed access is based on objective and reasonable criteria and is proportionate to the legitimate aim pursued, which it is for the referring court to ascertain.

| 2. | Article 107(1) TFEU must be interpreted as meaning that a series of measures introduced by a government decision and consisting of, first, priority dispatch by the system operator, in which the State has the majority shareholding, of the electricity generated by certain electricity producers whose installations use indigenous primary energy fuel sources, second, guaranteed access to transmission systems for the electricity generated by those producers’ installations, and, third, an obligation for those producers to provide ancillary services for a certain quantity of megawatts to the system operator, which is to reserve for them a right to supply that quantity at prices fixed in advance and deemed to exceed the prices on the market, may be classified as ‘State aid’ within the meaning of Article 107(1) TFEU. If this is the case, such a series of measures must be regarded as new aid and is, on that ground, subject to the obligation of prior notification to the European Commission, in accordance with Article 108(3) TFEU. |
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2.

Article 107(1) TFEU must be interpreted as meaning that a series of measures introduced by a government decision and consisting of, first, priority dispatch by the system operator, in which the State has the majority shareholding, of the electricity generated by certain electricity producers whose installations use indigenous primary energy fuel sources, second, guaranteed access to transmission systems for the electricity generated by those producers’ installations, and, third, an obligation for those producers to provide ancillary services for a certain quantity of megawatts to the system operator, which is to reserve for them a right to supply that quantity at prices fixed in advance and deemed to exceed the prices on the market, may be classified as ‘State aid’ within the meaning of Article 107(1) TFEU. If this is the case, such a series of measures must be regarded as new aid and is, on that ground, subject to the obligation of prior notification to the European Commission, in accordance with Article 108(3) TFEU.

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(1)  OJ C 297, 7.9.2020.

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