Summary;Judgment — ECLI:EU:C:2024:78
Date: 2024-01-25
Language of the case: Hungarian
Court formation: Eighth Chamber
Subject matter: Energy;Right of establishment;Approximation of laws;Freedom to provide services;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Hungary

Translation C-277/22 – 1 
Case C-277/22 
Request for a preliminary ruling 
Date lodged: 
22 April 2022 
Referring court: 
Fővárosi Törvényszék (Budapest High Court, Hungary) 
Date of the decision to refer: 
22 March 2022 
Applicant: 
Global NRG Kereskedelmi és Tanácsadó Zrt. 
Defendant: 
Magyar Energetikai és Közmű-szabályozási Hivatal (Hungarian 
Regulation Authority for the Energy Sector and Public Utilities) 
  
Fővárosi Törvényszék (Budapest High Court, Hungary) 
[…] Applicant: Global NRG Kereskedelmi és Tanácsadó Zrt. ([…] Budapest 
[Hungary] […]) 
[…] Defendant: Magyar Energetikai és Közmű-szabályozási Hivatal (Hungarian 
Regulation Authority for the Energy Sector and Public Utilities) ([…] Budapest 
[…]) 
[…] Other party intervening in support of the defendant: FGSZ 
Földgázszállító Zrt. ([…] Siófok (Hungary) […]) 
[…] Subject matter of the dispute: application for judicial review of an 
administrative decision […] in the field of energy 
Decision: 
The referring court hereby refers questions to the Court of Justice of the European 
Union for a preliminary ruling interpreting Article 41(17) of Directive 
2009/73/EC of the European Parliament and of the Council of 13 July 2009 
concerning common rules for the internal market in natural gas and repealing 
EN 
REQUEST FOR A PRELIMINARY RULING OF 22. 3. 2022 – CASE C-277/22 
 
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Directive 2003/55/EC, in conjunction with Article 47 of the Charter of 
Fundamental Rights.  
The referring court hereby refers the following questions to the Court of Justice of 
the European Union for a preliminary ruling: 
1. Must Article 41(17) of Directive 2009/73/EC of the European 
Parliament and of the Council of 13 July 2009 concerning common rules 
for the internal market in natural gas and repealing Directive 
2003/55/EC (‘the Directive’) be interpreted, in the light of Article 47 of 
the Charter of Fundamental Rights, as meaning that it precludes 
national legislation according to which, in the procedures by which the 
regulatory authority of that Member State sets system usage charges, 
remuneration for any services provided by system operators under a 
special tariff and connection fees, only the system operator is recognised 
as a party directly affected and, as such, the only party having a right of 
appeal against a decision made in that procedure? 
2. If the Court answers the first question in the affirmative, must 
Article 41(17) of the Directive be interpreted, in the light of Article 47 of 
the Charter of Fundamental Rights, as meaning that where that article 
is applied to a case such as that in the main proceedings, an actor in the 
natural gas market in a situation such as that of the applicant, which, 
under a decision by the regulatory authority of the Member State 
setting the system usage charges, remuneration for any services 
provided by system operators under a special tariff and connection fees, 
is charged a tariff by the system manager for a service that can be 
provided under a special tariff, must be found to be a party affected by 
that decision and, as such, to have a right of appeal against it? 
[…] [Matters of national procedural law] 
Grounds 
1 The referring administrative court asks the Court of Justice of the European Union 
(‘the Court’), under Article 267 of the Treaty on the Functioning of the European 
Union, to interpret provisions of EU law required in order to resolve the dispute in 
the main proceedings.  
Subject matter of the dispute and relevant facts 
2 By decision of 10 August 2021 […] (‘the contested decision’) the defendant, as 
the national regulatory authority, in the procedure commenced by it on its own 
initiative in relation to FGSZ Földgázszállító Zrt. (‘FGSZ Zrt.’), as the system 
manager of the natural gas transmission system, determined the scales for the 
special tariffs applicable by the system transmission manager and for the 
connection fees that can be charged for connection to the gas pipeline, in relation 
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to the supply of natural gas for the period between 1 October 2021 and 
30 September 2025. The applicant (Global NRG Zrt.), which is engaged in the 
trade in natural gas and uses the natural gas transmission system as a system user, 
has applied to the referring court for a judicial review of the contested decision. A 
preliminary ruling by the Court on the questions referred is necessary in order to 
determine the substance of the dispute in the main proceedings.  
3 The defendant based the contested decision, inter alia, on an earlier decision of 
30 March 2021 […], establishing the reference price methodology, which was 
likewise appealed by the applicant in 2021. By its judgment of 12 January 2022 
[…], which has not yet become final, the Budapest High Court set aside the 
defendant’s decision of 30 March 2021 and ordered that court to rehear the matter. 
The applicant claims, in particular, that the contested decision is unlawful 
because, first, the decision of 30 March 2021, on which the contested decision is 
based, was also unlawful and, secondly, because the defendant should not have set 
a tariff for the title transfer service. The applicant contends that the service in 
question is included in the ‘non-transmission services’ category, having regard to 
Article 3(15) of Commission Regulation (EU) 2017/460 of 16 March 2017 
establishing a network code on harmonised transmission tariff structures for gas. It 
also alleges an infringement of Articles 4(4) and 19(2) of that regulation, and 
seeks annulment of the contested decision. 
4 The defendant has applied for the application for judicial review to be dismissed 
on the grounds that the applicant does not have locus standi and, in the alternative, 
on the grounds that the action is unfounded. 
Grounds of the request for a preliminary ruling and arguments of the parties 
5 As a preliminary issue, the referring court examines whether the applicant, a 
system user, is entitled to bring proceedings against the contested decision, which 
sets the tariffs applicable by the system manager. According to the applicable 
national legislation, in the procedures setting the system usage charges, 
remuneration for any services provided by system operators under a special tariff 
and connection fees, only the system manager affected is to be considered as 
being directly affected. 
6 According to the applicant, the tariffs set by the contested decision are binding on 
both the system manager and system users and, therefore, directly affect the rights 
and legitimate interests of both, since, if those tariffs are not set in accordance 
with the law, the system users will suffer an injury. As a natural gas vendor, 
mindful of the need to comply with its commercial contracts, the applicant cannot 
decline to use the title transfer service envisaged in the contested decision, for 
which FGSZ Zrt. automatically and unavoidably charges it the applicable tariff. 
For a natural gas vendor, this is not an optional additional service, but is the only 
means of carrying on its business of trading in natural gas with other vendors, and 
it therefore affects the rights and legitimate interests of all purchasers of the 
REQUEST FOR A PRELIMINARY RULING OF 22. 3. 2022 – CASE C-277/22 
 
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service and other market actors in a similar situation (holders of licences to trade 
in natural gas). 
7 The applicant contends that, according to the national legislation, it had a right of 
appeal in the procedure establishing the reference price methodology on which the 
system usage charges are based and determining the discounts, multipliers and 
seasonal factors for the transmission system management tariffs and that, in 
consequence, the distinction to the effect that it has no right of appeal against the 
contested decision, which sets the system usage charges, remuneration for any 
services provided by system operators under a special tariff and connection fees, 
is discriminatory and contrary to EU law. In its view, whether or not the vendor 
passes on the system usage charges as costs is irrelevant for the purposes of its 
status as a party affected. 
8 The defendant disputes that the applicant has a right of appeal, arguing that the 
applicant was not a party to the procedure to adopt the contested decision and that 
there is no direct relationship between the applicant and the subject matter of the 
action. It argues that the contested decision imposes obligations directly on FGSZ 
Zrt. alone, and therefore affects the applicant’s situation only indirectly, rather 
than directly. It also refers to the national legislation according to which, in the 
procedure to adopt the contested decision, only the system manager affected is 
recognised as a party directly affected. The defendant denies that the applicant is 
obliged to use the title transfer service concerned and to pay the corresponding 
tariff and also claims that the applicant does not necessarily have to bear the 
ultimate burden of the tariff, since it is free to pass it on. It observes on that point 
that were the applicant to be acknowledged as having a right of appeal, any person 
who bears the ultimate burden of that tariff could be regarded as a ‘party affected 
by a decision of a regulatory authority’ and could, as such, bring proceedings for 
judicial review in circumstances such as those of the dispute in the main 
proceedings.  
9 The defendant refers to recital 33 of the Directive, from which it can be inferred 
that the concept of ‘party affected’ is not defined in the Directive and must 
therefore be interpreted and determined by the national legislation. According to 
national case-law, in order for a ruling to be made on the substance of a dispute it 
is necessary to demonstrate a direct legal interest, and a purely economic interest 
is not sufficient to serve as the basis of a right of appeal. 
Relevant legislation 
10 EU law 
– Directive 2009/73/EC of the European Parliament and of the Council of 13 July 
2009 concerning common rules for the internal market in natural gas and 
repealing Directive 2003/55/EC: Article 41(17) 
– Charter of Fundamental Rights of the European Union: Article 47 
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National legislation: 
– The földgázellátásról szóló 2008. évi XL. törvény (Get.) (Law No XL of 2008 
concerning the supply of natural gas) (‘Law on the supply of natural gas’): 
‘Article 129/B 
1. In the procedures to set the system usage charges, remuneration for 
any services provided by system operators under a special tariff and 
connection fees, only the system manager affected shall be considered as 
being directly affected. 
2. In the procedures establishing the reference price methodology on 
which the system usage charges are based and determining the discounts, 
multipliers and seasonal factors for the transmission system management 
tariffs, the persons entitled to be consulted on the transmission system 
management tariffs shall also be considered as being directly affected.’ 
– The közigazgatási perrendtartásról szóló 2017. évi I. törvény (Kp.) (Code on 
Administrative Litigation, Act I of 2017)  
‘Article 17. The following shall have the right to institute an action: 
a) any person whose right or legitimate interest is directly affected by the 
administrative activity; 
…’. 
‘Article 48. Non-admission 
1. The Court shall declare the application for judicial review inadmissible 
where: 
… 
c) it is not brought by a person entitled to do so in accordance with the 
law; 
…’. 
Grounds for referring the questions for a preliminary ruling 
11 The referring court is the administrative court with jurisdiction to hear the 
application for judicial review brought against the contested decision made by the 
national regulatory authority. In order to examine the substance of the applicant’s 
action, it is necessary as a preliminary issue to determine whether that party – in 
the light of all the circumstances of the case – has a right of appeal in accordance 
with Article 41(17) of the Directive. Where the judicial proceedings have been 
REQUEST FOR A PRELIMINARY RULING OF 22. 3. 2022 – CASE C-277/22 
 
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brought by a person not entitled to do so, under the national legislation and in 
view of the procedural obstacle, it would be necessary to declare the application 
for judicial review inadmissible without embarking upon examination of the 
substance of the case. Where it can be confirmed that the applicant is entitled to 
bring judicial proceedings, the necessary next step, as a precondition for 
determining the substance of the case, is to examine whether that person also has 
locus standi, that is to say, whether the contested decision directly affects the 
rights or legitimate interests of that person. 
12 The Directive does not define the concept of ‘party affected by a decision of a 
regulatory authority’ in relation to the judicial appeal against decisions of the 
regulatory authority referred to in Article 41(17), and that concept must therefore 
be examined having regard to the guidelines laid down by the case-law of the 
Court. In its judgments of 19 March 2015, E.ON Földgáz Trade (C-510/13, 
EU:C:2015:189), (‘E.ON Földgáz’) and of 16 July 2020, Commission v Hungary 
(Charges for access to electricity and natural gas transmission networks) 
(C-771/18, EU:C:2020:584), (‘judgment in Case C-771/18’) the Court examined, 
first, the scope ratione personae of the entitlement, under EU law, to bring an 
appeal against a decision by a national regulatory authority concerning the 
regulation of the internal market in natural gas and, secondly, in the light also of 
the principle of effective judicial protection, the content of the obligation on 
Member States to establish those appeal mechanisms. In the case pending before 
the referring court there is reason to interpret both aspects in greater detail. 
First question referred – Applicability of the national legislation restricting the 
right of appeal  
13 By its first question, the referring court asks the Court to interpret the content of 
the obligation on Member States established in Article 41(17) of the Directive, 
also taking into consideration the principle of effective judicial protection 
enshrined in Article 47 of the Charter of Fundamental Rights. It enquires whether 
the legislation of a Member State, which applies in a situation such as that at issue 
in the main proceedings, is compatible with EU law where, according to that 
legislation, in the procedures setting the system usage charges, remuneration for 
any services provided by system operators under a special tariff and connection 
fees, only the system manager affected is considered to be a person directly 
affected (Article 129/B(1) of the Law on the supply of natural gas). National law 
restricts the right of appeal, by operation of law, and does not allow any weighing 
up or individual assessment by the administrative court. In the referring court’s 
view it thereby disproportionately restricts the right of appeal established in 
Article 41(17) of the Directive. 
14 The Court has jurisdiction to interpret the concept of ‘[person] affected’ contained 
in Article 41(17) of the Directive. The referring court, for its part, in the absence 
of a clear and decisive preliminary interpretation by the Court, does not have 
jurisdiction to determine that EU law has primacy and that national legislation not 
compliant with EU law must be disapplied. Unless it has clear interpretive 
GLOBAL NRG 
 
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guidance from the Court, the referring court must, in accordance with national 
law, declare the application for judicial review brought by the applicant to be 
inadmissible, without examining the substance of the case, because, according to 
national law, the applicant is not among the persons entitled to bring the judicial 
proceedings. Accordingly, a legal interpretation by the Court is necessary in the 
interests of exercise of the right of appeal guaranteed by Article 41(17) of the 
Directive and by Article 47 of the Charter of Fundamental Rights. 
15 In the judgment in Case C-771/18, delivered in infringement proceedings No 
INFR(2014)2271 brought by the European Commission, the Court examined 
whether the appeal proceedings established by the Hungarian legislature were 
compliant with EU law – including, among other provisions, Article 41(17) of the 
Directive, which it is also appropriate to examine in the present case. The 
Commission particularly criticised the fact that, according to Article 129/A(3) and 
(4) of the Law on the supply of natural gas, which was in force until 20 December 
2016, in relation to the procedures for setting the system usage charges, 
remuneration for any services provided by system operators under a special tariff 
and connection fees, only the system manager affected was considered to be a 
party and could exercise the right to apply for judicial review. However, as a 
result of the Commission commencing proceedings, the Hungarian legislature 
repealed the contested provisions, and the Commission accepted that step as 
having resolved the issues, even though it maintained its allegation that Hungary 
had failed to completely fulfil its obligations because it had not established a 
suitable mechanism guaranteeing the right of appeal against decisions of the 
national regulatory authority under Article 41(17) of the Directive. 
16 Even though in the infringement proceedings the Court was not required to 
examine the appeal mechanisms under Article 129/A(3) and (4) of the Law on the 
supply of natural gas, which was in force until 20 December 2016, it should be 
emphasised that those earlier provisions are strikingly similar to the current 
provisions established in the same law. The most significant similarity is that in 
both models only the system manager is classified as a party directly affected, 
with the effect that only that party is entitled to apply for judicial review. The 
referring court is of the view that the content of Article 129/A(3) and (4) of the 
Law on the supply of natural gas, in force until 20 December 2016, coincides with 
the content of Article 129/B(1) of that law, which is currently in force, meaning 
that the current provisions are identical to the provisions previously challenged by 
the Commission. 
17 As the Court stated in paragraph 50 of E.ON Földgáz, whilst it is, in principle, for 
national law to determine an individual’s standing and legal interest in bringing 
proceedings, EU law nevertheless requires, in addition to observance of the 
principles of equivalence and effectiveness, that the national legislation should not 
undermine the right to effective judicial protection, as provided for in Article 47 
of the Charter of Fundamental Rights of the European Union. 
REQUEST FOR A PRELIMINARY RULING OF 22. 3. 2022 – CASE C-277/22 
 
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18 Also bearing in mind the objections that the Commission expressed to the 2016 
model for appeal proceedings, the referring court believes that the first question 
referred should be answered to the effect that Article 41(17) of the Directive must 
be interpreted, in the light of Article 47 of the Charter of Fundamental Rights, as 
meaning that it precludes national legislation which, in the procedure by which the 
regulatory authority of that Member State sets system usage charges, establishes 
that the system operator is the only party directly affected and, as such, the only 
party with a right of appeal against a decision made in that procedure. In the view 
of the referring court, Article 129/B(1) of the Law on the supply of natural gas in 
fact unjustifiably restricts the range of persons enjoying a right of appeal against 
decisions of the regulatory authority so that it includes only the system manager, 
thereby preventing other market actors in the natural gas sector who may be 
directly affected by the decision from bringing an appeal. 
19 In the light of the foregoing, should the Court answer the first question referred in 
the affirmative, it will be necessary in the main proceedings to disapply 
Article 129/B(1) of the Law on the supply of natural gas in so far as concerns the 
applicant’s right to bring judicial proceedings, since the national legislation 
complies neither with the provisions of EU law on the right of appeal nor with the 
principle of effective judicial protection enshrined in Article 47 of the Charter of 
Fundamental Rights. Since, in such circumstances, the EU legislation would be 
directly applicable and would have primacy over the national legislation, meaning 
that the applicant would have to be found to have a general right to bring judicial 
proceedings, it would also be necessary to answer the second question referred, on 
the scope, as defined by EU law, of the locus standi of the applicant in this 
specific case, associated with the extent to which it is individually affected. 
Second question referred – Locus standi of a market actor such as the applicant 
20 By its second question, the referring court seeks interpretation and guidance from 
the Court on whether, in relation to the provisions of EU law on the regulation of 
the internal market in natural gas that identify the persons having a right of appeal 
against decisions of the regulatory authority, a market actor in a situation such as 
that of the applicant in the judicial review proceedings against the contested 
decision at issue in the main proceedings can be found to be a ‘party affected by a 
decision of a regulatory authority’. 
21 The referring court believes that matter to be similar to that examined by the Court 
in E.ON Natural Gas. According to paragraph 48 of that judgment, the right of 
appeal enjoyed by E.ON Trade Földgáz Zrt. was based on the fact that it was the 
holder of certain rights and it had to be found that those rights could be infringed 
by a decision of the regulatory authority. In paragraph 49 of E.ON Földgáz, the 
Court stated that, when there are no EU rules governing the matter, it is for the 
domestic legal system of every Member State to designate the courts and tribunals 
having jurisdiction and to lay down the detailed procedural rules governing 
actions for safeguarding rights which individuals derive from EU law, but that the 
Member States are, however, responsible for ensuring that those rights are 
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effectively protected in every case. Nevertheless, the Member States must exercise 
that power in accordance with and without infringing the right to effective judicial 
protection guaranteed by Article 47 of the Charter of Fundamental Rights. 
22 In the light of the foregoing, in the main proceedings pending before the referring 
court it is necessary to interpret Article 41(17) of the Directive in order to 
determine whether the applicant, a company engaged in the trade in natural gas 
which, as a system user, uses the natural gas transmission system, must be found 
to be a person enjoying rights under the Directive whose situation is or may be 
affected as the result of a decision of the regulatory authority setting the system 
usage charges, remuneration for any services provided by system operators under 
a special tariff and connection fees, and that it should therefore have a right to 
apply for judicial review. The applicant’s claim in its application for judicial 
review, to the effect that the contested decision is contrary to EU law because it 
infringes Articles 3(15), 4(4) and 19(2) of Regulation 2017/460, is also relevant to 
determining that issue, and can only be examined on the merits if the referring 
court confirms that the applicant has locus standi. 
23 The referring court proposes to answer to the effect that an actor in the natural gas 
market in a situation such as that of the applicant, in a matter such as that 
examined in the main proceedings, does have a right of appeal because it may be 
directly affected. That answer is premised on the fact that the system manager, 
which is directly bound by the contested decision, automatically and unavoidably 
charges the applicant the tariffs set by that decision, and the applicant, as a market 
actor engaged in the trade in natural gas, is obliged to pay those fees and tariffs to 
the system manager and cannot carry on its business of trading in natural gas 
unless it complies with that obligation. Accordingly, the fact that the contested 
decision may be unlawful – in the present case, contrary to EU law – directly 
affects the applicant’s rights and legitimate interests. 
24 In the light of the foregoing, it is necessary for the purposes of the main 
proceedings that both questions referred be answered, in order to determine, as an 
issue preliminary to resolution of the substance of the case, whether the applicant 
has a right to bring judicial proceedings and locus standi – whether its rights or 
legitimate interests have been directly infringed. 
25 […] 
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Budapest, 22 March 2022 
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