# C_2019423EN.01000501.xml

| 16.12.2019 | EN | Official Journal of the European Union | C 423/5 |
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16.12.2019

EN

Official Journal of the European Union

C 423/5

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Judgment of the Court (Fifth Chamber) of 17 October 2019 (request for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — ‘Elektrorazpredelenie Yug’ EAD v Komisia za energiyno i vodno regulirane (KEVR)

(Case C-31/18) (1)

(Reference for a preliminary ruling - Directive 2009/72/EC - Internal market in electricity - Article 2(3) to (6) - Concepts of electricity transmission system and electricity distribution system - Distinguishing criteria - Voltage - Ownership of installations - Article 17(1)(a) - Independent transmission operator - Articles 24 and 26 - Distribution system operator - Article 32(1) - Free third-party access - Access to medium-voltage electricity - Interconnection points between transmission and distribution systems - Discretion of the Member States)

(2019/C 423/06)

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicant:‘Elektrorazpredelenie Yug’ EAD

Defendant: Komisia za energiyno i vodno regulirane (KEVR)

Other party:‘BMF Port Burgas’ EAD

Operative part of the judgment

| 1. | Article 2(3) and (5) 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 national legislation such as that at issue in the main proceedings, which provides that the transformation of the voltage to enable the transition from high to medium voltage falls within the remit of the activities of an electricity transmission system; |
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1.

Article 2(3) and (5) 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:

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not precluding national legislation such as that at issue in the main proceedings, which provides that the transformation of the voltage to enable the transition from high to medium voltage falls within the remit of the activities of an electricity transmission system;

| — | precluding, by contrast, such a legislation which defines the concepts of electricity transmission system and electricity distribution system based on criteria relating not only to the voltage but also to the ownership of the assets used to exercise transmission and distribution activities, respectively.
  That interpretation is without prejudice, however, first, to the application of Article 17(1)(a) of the directive, according to which the transmission system must be owned by an independent transmission operator and, secondly, to the Member States’ right to require that the distribution system operator own that system, in so far as that requirement does not jeopardise the achievement of the objectives sought by the directive, in particular by making such a system fall outside the scope of the obligation to comply with the rules applicable to it under the directive — which is a matter for the referring court to determine. |
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precluding, by contrast, such a legislation which defines the concepts of electricity transmission system and electricity distribution system based on criteria relating not only to the voltage but also to the ownership of the assets used to exercise transmission and distribution activities, respectively.

That interpretation is without prejudice, however, first, to the application of Article 17(1)(a) of the directive, according to which the transmission system must be owned by an independent transmission operator and, secondly, to the Member States’ right to require that the distribution system operator own that system, in so far as that requirement does not jeopardise the achievement of the objectives sought by the directive, in particular by making such a system fall outside the scope of the obligation to comply with the rules applicable to it under the directive — which is a matter for the referring court to determine.

| 2. | Directive 2009/72, in particular Article 2(3) to (6) and Article 32(1) thereof, must be interpreted as meaning that a user connected to the electricity network at a medium-voltage plant must not necessarily be considered to be a customer of the electricity distribution system operator holding an exclusive licence for electricity distribution for the area concerned, irrespective of the contractual relations between that user and the electricity transmission system operator, since such a user may be considered to be a customer of the electricity transmission system when it is connected to a medium-voltage plant forming part of an electrical substation whose activity of transforming the voltage to enable the transition from high to medium voltage falls within the remit of the activities of that system — which is a matter for the referring court to determine. |
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2.

Directive 2009/72, in particular Article 2(3) to (6) and Article 32(1) thereof, must be interpreted as meaning that a user connected to the electricity network at a medium-voltage plant must not necessarily be considered to be a customer of the electricity distribution system operator holding an exclusive licence for electricity distribution for the area concerned, irrespective of the contractual relations between that user and the electricity transmission system operator, since such a user may be considered to be a customer of the electricity transmission system when it is connected to a medium-voltage plant forming part of an electrical substation whose activity of transforming the voltage to enable the transition from high to medium voltage falls within the remit of the activities of that system — which is a matter for the referring court to determine.

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(1)  OJ C 123, 9.4.2018.

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