Order;Summary — ECLI:EU:C:2024:34
Date: 2024-01-11
Language of the case: Polish
Court formation: Seventh Chamber
Subject matter: State aids;Competition;Principles, objectives and tasks of the Treaties
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
5 April 2023 
Referring court: 
Sąd Apelacyjny w Warszawie (Poland) 
Date of the decision to refer: 
22 March 2023 
Appellant: 
R. sp. z o.o. 
Respondent: 
Prezes Urzędu Regulacji Energetyki 
  
Subject matter of the main proceedings 
Appeal brought by R. sp. z o.o. (‘company R.’) against the decision of the Prezes 
Urzędu Regulacji Energetyki (Chair of the Energy Regulatory Office) of 
20 December 2018 (‘the decision of the Chair of the Energy Regulatory Office’) 
in which that authority, acting pursuant to the Polish law on energy, first ruled that 
the company R. had failed in 2013 to comply with the obligation to obtain and 
submit to the Chair of the Energy Regulatory Office for clearance purposes a 
certificate of origin issued for electricity generated from renewable sources 
located in the territory of the Republic of Poland or situated in the exclusive 
economic zone, or to make a compensation payment, and, second, imposed a 
financial penalty on the company R. for that failure. 
Subject matter and legal basis of the request 
Interpretation of Article 108(3) of the Treaty on the Functioning of the European 
Union, in conjunction with Article 4(3) of the Treaty on European Union. 
Article 267 of the Treaty on the Functioning of the European Union. 
EN 
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Question referred for a preliminary ruling 
Must Article 108(3) of the Treaty on the Functioning of the European Union, in 
conjunction with Article 4(3) of the Treaty on European Union, be interpreted as 
meaning that failure to notify the European Commission of State aid, even though 
the Commission subsequently found in a decision that that aid was compatible 
with the internal market, rules out the possibility of imposing a financial penalty 
on an undertaking which failed to comply with an obligation arising from the 
provision of national law implementing that aid in the period prior to the 
Commission’s decision? 
Provisions of European Union law relied on 
1 Treaty on the Functioning of the European Union: Articles 107(1) and 108(1), (2), 
(3) and (4); 
2 Treaty on European Union: Article 4(3); 
3 Decision of the European Commission Decision of 2 August 2016 in Case 
SA.37345 (2015/NN) (‘the Commission Decision’ or ‘the Decision of 2 August 
2016’): preamble and sections 2.1 (20), 3.1, 3.2, and 4. 
Provisions of national law relied on 
Ustawa z dnia 10 kwietnia 1997 r. Prawo energetyczne (Law on Energy of 
10 April 1997; ‘the Law on Energy’) 
Under Article 9a(1) of that law (in the version in force until 3 April 2015), 
energy companies and final consumers in particular are obliged to obtain 
and submit to the Chair of the Energy Regulatory Office for clearance 
purposes a certificate of origin, issued in respect of electricity generated 
from renewable sources located in the territory of the Republic of Poland, or 
to make a compensation payment calculated according to the formula set out 
in Article 9a(2) of that law, by 31 March of each year, for the previous 
calendar year (‘RES obligation’). Article 56(1)(1a) of that law (in the 
version in force until 30 June 2016) stipulated that anyone who fails to 
comply with the obligation to obtain and submit to the Chair of the Energy 
Regulatory Office for clearance purposes a certificate of origin or a 
certificate of biogas origin, or to make a compensation payment, is to be 
subject to a financial penalty. 
Succinct presentation of the facts, the main proceedings and the essential 
arguments of the parties 
4 On 20 December 2018, the Chair of the Energy Regulatory Office issued a 
decision in which he ruled that in 2013 the company R. had failed to comply with 
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the RES obligation laid down in the Law on Energy, and imposed a fine on the 
company R. for that failure. 
5 The company R. lodged an appeal against that decision of the Chair of the Energy 
Regulatory Office with the Sąd Okręgowy w Warszawie (Regional Court, 
Warsaw) (‘court of first instance’). 
6 In its appeal against the decision of the Chair of the Energy Regulatory Office, the 
company R. claimed that that decision should be annulled on the ground that it 
had been wrongly assumed that it is an entity obliged to obtain and submit for 
clearance purposes certificates of origin of electricity or to make a compensation 
payment in respect of electricity sold to the company H. The company R. submits 
that it is not, with respect to H., an electricity company which produces or 
supplies electricity and sells it to a final consumer within the meaning of the Law 
on Energy. The company R. thus claimed that the Chair of the Energy Regulatory 
Office had unjustifiably imposed a financial penalty on it for failure to fulfil the 
abovementioned obligation. 
7 The company R. also argued that the imposition of a financial penalty on it for 
failure to comply with the RES obligation pursuant to the provisions of national 
law, which were introduced into the Polish legal order in breach of Article 108(3) 
TFEU, constitutes an infringement of Article 108(3) TFEU, Article 91(1) and (3) 
of the Constitution of the Republic of Poland, and Article 56(1)(1a) of the Law on 
Energy, in conjunction with the first paragraph of section 4 of the Commission’s 
decision. 
8 The Chair of the Energy Regulatory Office contended that the appeal should be 
dismissed. 
9 On 5 May 2021, the court of first instance delivered a judgment (‘judgment of the 
court of first instance’) by which it annulled the decision of the Chair of the 
Energy Regulatory Office in so far as it concerned the imposition of a financial 
penalty on the company R., and dismissed the remainder of the appeal. 
10 The judgment of the court of first instance was delivered on the basis of the 
following findings of fact. The company H. and the company R. hold licences to 
deal in electricity. Neither company held a licence to distribute electricity. On 
19 January 2007, the court declared the company H. insolvent with the possibility 
of the conclusion of a composition agreement. On 23 March 2010, the company 
H. and the company T. (which was a distribution system operator; ‘DSO’) 
concluded a distribution services agreement under which the DSO undertook to 
provide distribution services to company H., subject to the condition that H. 
concluded electricity sales agreements with a seller with whom the DSO had a 
general distribution agreement. The company R. was such a seller. The generating 
facilities of the company R. were not connected in 2013-2014 to the distribution 
network of T., to which only H. was connected, and the title to the transformers 
used by company H. belonged in 2013 to R., which transformed the 110 kV 
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electricity purchased by company H. into the 6 kV electricity needed to supply the 
furnaces used by H. On 13 December 2010, the company R. concluded with 
company H. an electricity sales contract, which was to be in force from 1 January 
2011. The object of the agreement was the sale by the company R. of electricity at 
110 kV, which company H. was to consume for its own needs. On 12 December 
2011, the companies R. and H. concluded (1) an agreement on commissioning 
processing services, pursuant to which the company R. commissioned H. inter alia 
to process the electricity transmitted to it for the purposes of its production 
activities, (2) an annex to the 2010 sales agreement, and (3) an electricity 
repurchase agreement. By the abovementioned annex to the sales agreement, the 
parties changed the intended purpose of the electricity purchased by the company 
H. to ‘purpose other than own use’. That annex was signed because the DSO 
refused to provide electricity distribution services to company H. solely on the 
basis of an agreement on commissioning processing services. A condition for 
entry into force of the annex was the effective conclusion of an agreement for the 
repurchase of electricity by company R. from the company H. On 31 December 
2012, those companies concluded a further agreement on commissioning 
processing services, which did not result in a transfer of ownership of electricity to 
the company H. The companies H. and R. were also not final consumers. In 2013, 
the company R. carried on economic activity related to the supply of electricity 
and sold electricity to final consumers other than the company H. The company R. 
did not submit to the Chair of the Energy Regulatory Office for clearance 
purposes certificates of origin in respect of the electricity sold to the company H., 
nor did it make a compensation payment. On account of the revelation of a 
possible failure to comply with the RES obligation in 2013, the Chair of the 
Energy Regulatory Office informed the company R. of the initiation of 
administrative proceedings on its own initiative for the imposition of a financial 
penalty, and subsequently issued a decision. 
11 According to the company R., the fact that it was not obliged to comply with the 
RES obligation in respect of the electricity sold to the company H. in 2013 is 
evidenced by: (1) the conclusion with the company H. of an addendum to the 
2010 sales contract; (2) the conclusion of a 2011 repurchasing agreement; and (3) 
the conclusion of the agreement on commissioning processing services. In the 
view of the company R., there are no grounds for the assertion that the sale of 
electricity to the company H. under the 2010 agreement was covered by the RES 
obligation. The company R. pointed out that the manner of the co-operation 
between it and the company H. arose primarily from the fact that the company H. 
had been in administration since 2007. The company H. was the sole operator of 
the facilities used to carry out production activities on behalf of the company R., 
which bore the risk associated with sourcing raw materials and securing sales. 
Therefore, the company R. did not have to sell electricity to the entity in 
administration, and the company H. did not have to worry about raising funds to 
purchase raw materials and ensure the sale of products. 
12 The Chair of the Energy Regulatory Office took the position that, under the 
legislation in force, energy may be supplied, after prior connection to the grid, 
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only on the basis of a sales agreement, an agreement on the provision of 
distribution services, or a comprehensive agreement, and the company R. was not 
a party to any such agreements. In relation to the energy sold to the company R. 
under the repurchase agreement, no entity therefore provided distribution services. 
In addition, in 2013 the company H. did not have a signed general distribution 
agreement enabling the implementation of the repurchase agreement. The only 
entity directly connected to the DSO grid was the company H. Under the 2013 
sales agreement, the company H. used the electricity transmitted to it for 
production and therefore for its own use as a final consumer. The actions of the 
company R. were aimed at avoiding compliance with the RES obligation and thus 
constituted an attempt to circumvent the law. 
13 The court of first instance agreed with the position of the Chair of the Energy 
Regulatory Office. It found that the term ‘sales agreement’ contained in the Law 
on Energy can refer any type of agreement under which energy is purchased by 
the consumer. However, in order for such an agreement to come into effect, it is 
important that the object of supply in the form of electricity is defined and that it 
is actually delivered to and received by the consumer. The court concluded that 
the company R. could effectively sell electricity to the company H. under the 2010 
sales agreement, but the company H. could not effectively sell the same electricity 
to the company R. under the 2011 repurchase agreement because neither entity 
provided distribution services in respect of that electricity. The electricity sold by 
the company H. to the company R. on the basis of the repurchase agreement was 
not actually dispensed to it, and therefore it was not received by company R., with 
the result that the company R. could not consign that energy to the company H. 
under the 2012 agreement on commissioning processing services. In the view of 
the court of first instance, the company R. intended to create a situation in which 
the RES obligation did not arise on the part of either of the companies. However, 
in actual fact the company H. purchased electricity from the company R. for its 
own needs, it was the final consumer, and the company R., as an undertaking, was 
obliged to obtain and submit to the Chair of the Energy Regulatory Office for 
clearance purposes a certificate of origin or to make a compensation payment. The 
Chair of the Energy Regulatory Office was therefore entitled to impose a financial 
penalty on the company R. 
14 However, the court of first instance found that a penalty should not be imposed in 
this particular case. In the view of the company R., the imposition of a fine on it 
for its alleged failure to comply with its RES obligation under the provisions of 
national law, which was introduced into the Polish legal order in breach of 
Article 108(3) TFEU, constitutes an infringement of that provision of the Treaty, 
inter alia. In its decision of 2 August 2016. the Commission found that Poland had 
put into effect a scheme of certificates of origin supporting RES electricity 
producers in breach of Article 108(3) TFEU. The Commission decided not to raise 
objections to the aid measures on the ground that they were compatible with the 
internal market under Article 107(3)(c) TFEU. The company R. took the position 
that Poland’s introduction and maintenance of the RES obligation without the 
Commission’s approval until 2 August 2016, in breach of Article 108(3) TFEU, 
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meant that the Chair of the Energy Regulatory Office had no legal grounds for 
imposing on it any financial penalty for failure to comply with the RES obligation. 
The company R. argued that, under the provisions of the Constitution of the 
Republic of Poland, both primary law and secondary law of the EU should prevail 
in the event of a conflict with a provision of national law. In the view of the Chair 
of the Energy Regulatory Office, Article 108(3) TFEU, which lays down an 
obligation of prior notification of State aid to the Commission and a prohibition 
on the application of such aid prior to receipt of a decision from that institution, 
has direct effect, and in the event of a conflict between lower-ranking laws or acts 
and acts issued by EU institutions, the courts are obliged to disregard the act of 
national law in question. The national courts and authorities also have an 
obligation to remove the effects of granting unlawful State aid. 
15 The Chair of the Energy Regulatory Office pointed out that the main power of the 
national court arising from the third sentence of Article 108(3) TFEU is to prevent 
the payment and order the recovery of aid granted in breach of that provision, that 
is to say, unlawful aid, while the national courts do not have the possibility of 
annulling a financial penalty imposed on an entity which fails to comply with its 
obligations under national law. He also argued that no one can rely on provisions 
of EU law for abusive or fraudulent ends. In the view of the Chair of the Energy 
Regulatory Office, the provisions of national law which the company R. was 
obliged to apply are compatible with EU law, and the obligation to notify those 
provisions does not affect company R.’s compliance with that obligation and the 
imposition on it of a financial penalty for the infringement thereof. The court of 
first instance concurred with company R.’s position and held that it would be 
contrary to EU law to impose a financial penalty on the company R. for failure to 
comply with the RES obligation for the period prior to the notification of the State 
aid to the Commission and the adoption of the decision of 2 August 2016. The 
compensation payment is a source of funding for the development of renewable 
energy sources and the construction and reconstruction of grids to connect those 
sources, and is therefore an integral part of the aid levied in breach of 
Article 108(3) TFEU. At the same time, there is a link between the compensation 
payment and the amount of aid granted to RES energy producers. Finally, State 
aid to RES energy producers in the form of certificates of origin has been 
recognised as State aid compatible with Article 107 TFEU, but in the absence of 
notification thereof to the Commission such aid until 2 August 2016 is considered 
to have been granted contrary to EU law. In the view of the court of first instance, 
the circumstances of the case do not provide grounds for finding that the company 
R. relied on provisions of EU law for abusive or fraudulent ends. The protection 
which the court is obliged to provide has its origin in EU law and is independent 
of the position of individual entities, and the national court is obliged to take 
account of Article 108(3) TFEU regardless of whether a party raises such an 
objection. There can be no abuse of rights where an undertaking invokes legal 
measures approved in the case-law of the Court of Justice. 
16 The Chair of the Energy Regulatory Office lodged an appeal against the judgment 
of the court of first instance with the Sąd Apelacyjny w Warszawie (Court of 
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Appeal, Warsaw). It alleged, inter alia, infringement of Article 108(3) TFEU by 
the application thereof and annulment of the decision in respect of the imposition 
of the financial penalty as a result of the erroneous assumption that Poland had 
infringed that provision and that the support scheme for renewable energy sources 
in the form of certificates of origin was subject to notification as State aid at the 
time when it was introduced in 2005, even though this was at variance with the 
Commission’s decision-making practice at that time. In the view of the Chair of 
the Energy Regulatory Office, the court of first instance also infringed the 
principle of the unfettered assessment of evidence. It overlooked the fact that in its 
decision of 2 August 2016 the Commission conceded that it had alleged that 
Poland had failed to notify State aid before the introduction of the support scheme 
in 2005, relying on the case-law of the Court of Justice of 2011, and at the same 
time failed to set out any reasons for the change in its decision-making practice. In 
that context, the court of first instance also stated that the compensation payment 
constitutes State aid and an integral part of the aid levied in breach of 
Article 108(3) TFEU, which is contradicted by the abovementioned Commission 
decision of 2 August 2016. 
17 The company R. also lodged an appeal against the judgment of the court of first 
instance. It alleged, inter alia, failure to annul the decision of the Chair of the 
Energy Regulatory Office in its entirety, despite the fact that the court of first 
instance correctly found that the Chair of the Energy Regulatory Office had 
imposed the penalty on the R. company in breach of Article 108(3) TFEU. In the 
view of the company R., a number of provisions of national law were infringed 
and misinterpreted, inter alia by assuming that R. was an entity obliged to comply 
with the RES obligation with regard to the electricity sold in 2013 to company H., 
when, in 2013, in its legal relations with company H., it was not an energy 
company generating or supplying electricity and carrying out the legal transaction 
of selling electricity to a final consumer. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
18 It is clear from the Commission’s decision that the RES obligation was introduced 
into the Polish legal system in breach of Article 108(3) TFEU, which requires that 
the European Commission be informed of plans to grant State aid. 
19 It follows from case-law of the Court of Justice that the fact of classifying aid as 
compatible with the internal market does not remedy the unlawfulness caused by 
the infringement of Article 108(3) TFEU for the period up to the Commission’s 
decision approving the aid since that would conflict with the direct effect of that 
provision. However, the possibility of imposing a fine on an undertaking on the 
basis of provisions introduced into the national legal order in breach of the 
obligation to notify them to the European Commission has yet to be ruled on. 
20 In Case C-445/19, Viasat Broadcasting UK Ltd v TV2 v Danmark A/S and 
Kingdom of Denmark, the Court of Justice held that the obligation incumbent on 
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national courts to order the recipient of State aid implemented in breach of that 
provision to pay illegality interest in respect of that aid also applies where, by its 
final decision, the European Commission finds that that aid is compatible with the 
internal market. That obligation stems from the fact that the aid recipient is given 
an undue advantage, consisting in the non-payment of the interest which it would 
have paid on the amount in question, had it had to borrow that amount pending the 
Commission’s final decision. The Court of Justice noted that, in view of the 
mandatory nature of the supervision of State aid by the Commission pursuant to 
Article 108 TFEU, undertakings to which aid has been granted may not, in 
principle, entertain a legitimate expectation that the aid is lawful unless it has been 
granted in compliance with the procedure laid down in that article, and 
furthermore, an economic operator exercising due care should normally be able to 
determine whether that procedure has been followed. In particular, where aid is 
implemented without prior notification to the Commission, with the result that it is 
unlawful under Article 108(3) TFEU, the recipient of the aid cannot have at that 
time a legitimate expectation that the grant of that aid is lawful. The Court of 
Justice found that in a situation where the Commission has, in relation to aid 
implemented in breach of Article 108(3) TFEU, adopted a final decision finding 
that that aid is compatible with the internal market pursuant to Article 107 TFEU, 
the Commission’s final decision does not have the effect of regularising, 
retrospectively, implementing measures which were invalid because they had been 
taken in disregard of the prohibition on implementation laid down by the last 
sentence of Article 108(3) TFEU. Any other interpretation would have the effect 
of according a favourable outcome to the non-observance, by the Member State 
concerned, of that provision and would deprive it of its effectiveness. In such a 
situation, EU law requires the national courts to order the measures that are 
appropriate effectively to remedy the consequences of the unlawfulness. If 
Article 108(3) TFEU carried no greater penalty for [non] compliance than for 
compliance, the incentive for Member States to notify aid would be greatly 
diminished – as would, consequently, the scope of the Commission’s control. 
21 In the present case, it was necessary to consider whether, since the aid recipient 
should make sure that the notification procedure applies and anticipate the need to 
repay the aid in the event of failure to notify it to the Commission, and also return 
the undue advantage gained in the period prior to the Commission’s final decision, 
an undertaking satisfied of the lack of notification, and therefore of the 
unlawfulness of the provisions constituting, on the one hand, a source of aid for 
some undertakings and, on the other hand, a source of obligations for others, 
should be penalised for infringing those obligations. 
22 An obligation on the part of the State to eliminate the effects of unlawful State aid 
before it is approved by the Commission arises from the case-law of the Court of 
Justice and General Court (see judgments of the Court of Justice and General 
Court: C-672/13, OTP Bank Nyrt v Magyar Állam and Magyar Államkincstár; 
C-275/10, Residex Capital IV CV v Gemeente Rotterdam; C-526/04, Laboratoires 
Boiron SA; T-554/15, Hungary v European Commission, paragraph 78; C-199/06, 
Centre d’exportation du livre français (CELF) and Ministre de la Culture et de la 
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Communication v Société internationale de diffusion et d’édition (SIDE), 
paragraphs 47 and 55; and also, T-678/20, Solar Electric Holding and Others v 
Commission, paragraphs 52 and 25). 
23 The impossibility of imposing a penalty for failure to comply with an obligation 
introduced into the national order in breach of Article 108(3) TFEU was pointed 
out by Advocate General Saugmandsgaard Øe in his Opinion in Case C-329/15 
[ENEA] S.A., in which he argued that, according to settled case-law, a system of 
penalties must be considered contrary to EU law if it penalises infringement of an 
obligation that has itself been held to be contrary to EU law. 
24 The Court of Justice must determine whether, since the RES obligation 
implements State support for producers of energy from renewable sources, the 
unlawfulness of State aid arising from a breach of Article 108(3) TFEU, as 
confirmed by a Commission decision, rules out the possibility of applying the 
provision laying down the RES obligation as a basis for imposing a penalty for 
failure to comply with that obligation in the period prior to the approval of the aid 
finally declared by the Commission to be compatible with the internal market. 
Determination of that issue will make it possible to ascertain whether the 
possibility of imposing penalties on undertakings for infringement of provisions 
which the State has failed to notify to the Commission prejudices the interests of 
individuals acting in the belief that the obligations arising from those rules are 
unlawful. In its judgment in Case C-174/02, Streekgewest Westelijk Noord-
Brabant, the Court of Justice noted that a private individual may have an interest 
in relying before a national court on the direct effect of the prohibition on 
implementing State aid prior to its notification, not only in order to eliminate the 
adverse effect of the unlawful aid in the form of distortion of the conditions of 
competition, but also in order to obtain a refund of a tax levied by the national 
authorities in breach of the last sentence of Article 88(3) of the Treaty (now 
Article 108(3) TFEU), where the revenue from the collection of that tax is 
hypothetically attributed to the aid measures in question. That position is also 
supported by the need to ensure the effectiveness of the prohibition laid down in 
that provision. The Court of Justice has held that where a method of financing aid 
by means of a tax forms an integral part of the aid measure, the consequences of a 
failure by the national authorities to comply with prohibition implementing that 
aid must also apply to that aspect of the aid, and the national authorities are 
therefore required in principle to repay charges levied in breach of EU law. 
However, it is necessary to clarify whether an undertaking may rely before a 
national court on the direct effect of the prohibition on implementing State aid 
prior to its notification also in the event that it is declared compatible with the 
internal market. A positive decision on this issue would justify adoption of the 
position that the company R. may rely on the lack of notification of the provision 
constituting the source of the RES obligation if the funds obtained from the 
compensation payment and penalties for non-payment thereof are intended to 
finance the aid, which directly affects the assessment from the point of view of its 
compatibility with the internal market. 
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25 Imposing a penalty on the company R. may be supported by the fact that the 
Commission’s decision-making practice, according to which support in the form 
of certificates does not involve the transfer of public funds and which was a 
source of legitimate expectations for Poland in the period preceding the 
introduction of the support scheme, changed only in 2011. The obligation to 
refrain from granting the aid therefore arose when the State became satisfied that 
the planned measure is State aid or when the Commission expressed its 
assessment of the nature of such a measure as aid. In its decision of 2 August 
2016, however, the Commission stated that Poland had been aware since at least 
8 September 2011, the date of the judgment in Case C-279/08 P, Commission v 
Netherlands, that the Polish scheme of certificates of origin involved State aid. On 
9 August 2013, the Commission received a complaint from a renewable energy 
producer concerning State aid, and Poland, in order to obtain legal certainty, 
notified the Commission of the planned support measure for energy-intensive 
consumers on 11 September 2013, maintaining its position that the support 
scheme for RES electricity production based on certificates of origin could not be 
regarded as State aid. Poland was therefore aware of possible divergences in the 
interpretation of the provisions of national law introduced in 2005 in terms of their 
classification as State aid. In the view of the Chair of the Energy Regulatory 
Office, the court also erred in finding that the compensation payment constitutes 
State aid and an integral part of the aid levied in breach of Article 108(3) TFEU. 
The funds from the compensation payment are disbursed by the competent 
national authority as part of separate programmes, which are not classified as 
State aid. In the Commission’s view, such State aid goes beyond the scope of the 
decision of 2 August 2016 and requires separate notification. An analysis of the 
Commission’s decision does not lead to the conclusion that the obligation to make 
a compensation payment, which is part of a scheme based on certificates of origin, 
the principal mode of implementation of which is a service of a non-pecuniary 
nature in the form of obtaining a certificate of origin and submitting it to the Chair 
of the Energy Regulatory Office for clearance purposes, was excluded from the 
scope thereof. The company R. is alleged to have relied on the provisions of the 
FEU Treaty in order to avoid a public-law obligation, which amounts to a form of 
abuse. However, Member States are obliged to observe the principle of sincere 
cooperation, as set out in Article 4(3) TEU. It is therefore appropriate to obtain a 
ruling on whether the need to observe the EU principles of effectiveness and 
sincere cooperation requires a finding that a national court is obliged to apply of 
its own initiative the provisions of EU law, the infringement of which justifies the 
protection of the right of an individual penalised on the basis of the provisions of 
national law introduced in breach thereof, even where this has the effect of 
preventing the imposition of a sanction for failure to comply with an obligation 
ultimately held by the EU body to be compliant with EU law.