# C_2019035EN.01000302.xml

| 28.1.2019 | EN | Official Journal of the European Union | C 35/3 |
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28.1.2019

EN

Official Journal of the European Union

C 35/3

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Judgment of the Court (First Chamber) of 28 November 2018 (requests for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia — Italy) — Solvay Chimica Italia SpA and Others (C-262/17), Whirlpool Europe Srl and Others (C-263/17), Sol Gas Primari Srl (C-273/17) v Autorità per l’energia elettrica, il gas e il sistema idrico

(Joined Cases C-262/17, C-263/17 and C-273/17) (1)

((Reference for a preliminary ruling - Internal market in electricity - Directive 2009/72/EC - Distribution systems - Article 28 - Closed distribution systems - Definition - Exemptions - Limits - Article 32(1) - Third-party access - Article 15(7) and Article 37(6)(b) - Dispatching charges))

(2019/C 35/04)

Language of the case: Italian

Referring court

Tribunale amministrativo regionale per la Lombardia

Parties to the main proceedings

Applicants: Solvay Chimica Italia SpA, Solvay Specialty Polymers Italy SpA, Solvay Chimica Bussi SpA, Ferrari f.lli Lunelli SpA, Fenice — Qualità Per L’ambiente SpA, Erg Power Srl, Erg Power Generation SpA, Eni SpA, Enipower SpA (C-262/17), Whirlpool Europe Srl, Fenice — Qualità Per L’ambiente SpA, FCA Italy SpA, FCA Group Purchasing Srl, FCA Melfi SpA, Barilla G. e R. Fratelli SpA, Versalis SpA (C-263/17), Sol Gas Primari Srl (C-273/17)

Defendant: Autorità per l’energia elettrica, il gas e il sistema idrico

Interveners: Nuova Solmine SpA, American Husky III, Inovyn Produzione Italia SpA, Sasol Italy SpA, Radici Chimica SpA, La Vecchia Soc. cons. arl, Zignago Power Srl, Santa Margherita e Kettmeir e Cantine Torresella SpA, Zignago Vetro SpA, Chemisol Italia Srl, Vinavil SpA, Italgen SpA, Arkema Srl, Yara Italia SpA, Ineos Manufacturing Italia SpA, ENEL Distribuzione SpA, Terna SpA, CSEA — Cassa per i servizi energetici e ambientali, Ministero dello Sviluppo economico (C-262/17), Terna SpA, CSEA — Cassa per i servizi energetici e ambientali, Ministero dello Sviluppo economico, ENEL Distribuzione SpA (C-263/17), Terna SpA, Ministero dello Sviluppo economico (C-273/17)

Operative part of the judgment

| 1. | Article 2(5) and Article 28(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 meaning that systems, such as those at issue in the main proceedings, put in place for the purposes of self-consumption before the entry into force of that directive and operated by a private person, to which a limited number of generation and consumption units are connected, and which in turn are connected to the public network, constitute distribution systems falling within the scope of that directive. |
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1.

Article 2(5) and Article 28(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 meaning that systems, such as those at issue in the main proceedings, put in place for the purposes of self-consumption before the entry into force of that directive and operated by a private person, to which a limited number of generation and consumption units are connected, and which in turn are connected to the public network, constitute distribution systems falling within the scope of that directive.

| 2. | Article 28 of Directive 2009/72 must be interpreted as meaning that systems, such as those at issue in the main proceedings, which have been classified by a Member State as closed distribution systems within the meaning of paragraph 1 of that article, may, in that capacity, only be exempted by that Member State from the requirements laid down in paragraph 2 of that article, without prejudice to the fact that those systems are otherwise eligible for other exemptions provided for in that directive, in particular the exemption set out in Article 26(4) thereof, if they meet the conditions laid down therein, which it is for the referring court to ascertain. In any event, that Member State may not include those systems in a separate category of distribution systems in view of granting them exemptions not provided for in that directive. |
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2.

Article 28 of Directive 2009/72 must be interpreted as meaning that systems, such as those at issue in the main proceedings, which have been classified by a Member State as closed distribution systems within the meaning of paragraph 1 of that article, may, in that capacity, only be exempted by that Member State from the requirements laid down in paragraph 2 of that article, without prejudice to the fact that those systems are otherwise eligible for other exemptions provided for in that directive, in particular the exemption set out in Article 26(4) thereof, if they meet the conditions laid down therein, which it is for the referring court to ascertain. In any event, that Member State may not include those systems in a separate category of distribution systems in view of granting them exemptions not provided for in that directive.

| 3. | Article 32(1) of Directive 2009/72 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that closed distribution systems within the meaning of Article 28(1) of that directive are not subject to the obligation to provide third-party access, but must provide access only to third parties falling within the category of users that may be connected to those systems, those users having a right of access to the public network. |
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3.

Article 32(1) of Directive 2009/72 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that closed distribution systems within the meaning of Article 28(1) of that directive are not subject to the obligation to provide third-party access, but must provide access only to third parties falling within the category of users that may be connected to those systems, those users having a right of access to the public network.

| 4. | Article 15(7) and Article 37(6)(b) of Directive 2009/72 must be interpreted as precluding, in the absence of any objective justification, national legislation such as that at issue in the main proceedings which provides that dispatching charges for the users of a closed distribution system are calculated on the basis of the electricity exchanged with that system by each of its users through their connection point to that system, should the users of a closed distribution system prove not to be in the same situation as the other users of the public network and should the provider of the dispatching service for the public network bear the limited costs with regard to those users of a closed distribution system, which it is for the referring court to ascertain. |
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4.

Article 15(7) and Article 37(6)(b) of Directive 2009/72 must be interpreted as precluding, in the absence of any objective justification, national legislation such as that at issue in the main proceedings which provides that dispatching charges for the users of a closed distribution system are calculated on the basis of the electricity exchanged with that system by each of its users through their connection point to that system, should the users of a closed distribution system prove not to be in the same situation as the other users of the public network and should the provider of the dispatching service for the public network bear the limited costs with regard to those users of a closed distribution system, which it is for the referring court to ascertain.

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(1)  OJ C 309, 18.9.2017.

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