Opinion of the Advocate General — ECLI:EU:C:2020:256
Date: 2020-04-02
Language of the case: Romanian
Subject matter: Free movement of goods;Measures having equivalent effect;Quantitative restrictions
Procedure: Reference for a preliminary ruling
Origin: Romania

Translation C-648/18 — 1 
Case C-648/18 
Request for a preliminary ruling  
Date lodged: 
17 October 2018 
Referring court: 
Tribunalul București (Romania) 
Date of the decision to refer: 
26 January 2017 
Appellant and defendant at first instance: 
Autoritatea Națională de Reglementare în Domeniul Energiei 
(ANRE) 
Respondent and applicant at first instance: 
Societatea de Producere a Energiei Electrice în Hidrocentrale 
Hidroelectrica SA 
  
REQUEST FOR A PRELIMINARY RULING 
The Tribunalul București (Regional Court, Bucharest), upon the application of the 
respondent, Societatea de Producere a Energiei Electrice în Hidrocentrale 
Hidroelectrica SA, ... in accordance with Article 267 of the Treaty on the 
Functioning of the European Union (TFEU), requests 
THE COURT OF JUSTICE OF THE EUROPEAN UNION 
to answer the following question for a preliminary ruling, which concerns the 
interpretation of Article 35 TFEU, such a ruling being necessary for the resolution 
of the case before the national court, which is registered at the Tribunalul 
București, Secția a II-a Contencios Administrativ și Fiscal (Section IIa 
administrative and fiscal contentious section) ...: 
Does Article 35 TFEU preclude an interpretation of Article 23(1) and 
Article 28(c) of the Legea energiei electrice și a gazelor naturale nr. 123/2012 
according to which electricity producers in Romania are obliged to trade all 
the electricity they produce exclusively on a centralised competitive market in 
EN 
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Romania, given that there is the possibility of exporting energy, albeit not 
directly but through trading companies? 
The subject-matter of the dispute and the relevant facts 
1. By application registered at the Judecătoria Sectorului 1 București (Court of First 
Instance, Bucharest — Sector 1), the applicant, Societatea de Producere a Energiei 
Electrice în Hidrocentrale Hidroelectrica SA (‘Hydroelectric’), brought an action 
(plângere contravențională) against the Autoritatea Națională de Reglementare în 
Domeniul Energiei (National Energy Sector Regulatory Authority, ‘the ANRE’), 
seeking the annulment of the minutes of 11 May 2015, No 36119, recording the 
finding of, and sanctioning an administrative office, and the consequential 
recognition of the lawfulness of the export operations carried out by 
Hydroelectrica between December 2014 and February 2015. 
2. In its application, the applicant has asserted that ANRE sanctioned Hydroelectrica 
for having exported electricity to another State of the European Union. The 
minutes are null and void, as they violate the principle of the free movement of 
goods within the Union. The minutes were adopted on the basis of an 
interpretation in the form of a press release published by ANRE on its own web 
page, after Hydroelectrica had reported the exports made. ANRE’s interpretation 
has no legal basis, is contrary to mandatory Community rules and is contradicted 
by the Consiliul Concurenței (the national competition authority), as well as by 
ANRE’s own statutes and previous interpretations. In addition, it applies 
retrospectively to the established facts. 
3. In its defence, by way of counterclaim lodged on 24 June 2015, the defendant 
ANRE has asserted that, between December 2014 and February 2015, the 
applicant did not offer for sale in a transparent manner on the competitive 
electricity market in Romania all the electricity available to it, but had instead 
exported some of the electricity it had produced to the Hungarian electricity 
market, in breach of the legislation in force. 
The decision at first instance 
By civil judgment … handed down by the Judecătoria Sectorului 1 București, 
Hydroelectrica’s action against the defendant ANRE was upheld. The minutes of 
11 May 2017, No 36119, finding and sanctioning the administrative offence were 
annulled. The applicant was relieved of the obligation to pay a fine in the sum of 
RON 50 000. 
It was held that trading outside the centralised platforms of OPCOM SA did not 
necessarily constitute an infringement of the provisions of Article 23(1) of the 
Legea energiei electrice și a gazelor naturale nr. 123/2012 (Law No 123/2012 on 
electricity and natural gas, ‘Law No 123/2012’). Since it was apparent from the 
evidence produced in the proceedings that the applicant had not infringed the 
provisions of Article 23(1) of Law No 123/2012, it followed that there was no 
ANRE 
 
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breach of the conditions attaching to its license and that the constituent elements 
of the administrative offence (contravenția) under Article 93(1)(4) of the same law 
were not established. 
The defendant’s appeal 
ANRE appealed against the judgment at first instance, maintaining that, in the 
civil judgment … which the Judecătoria Sectorului 1 București had handed down, 
it had misapplied the law. 
The request for a reference to the Court of Justice 
The applicant/respondent has requested that a question be referred to the Court of 
Justice for a preliminary ruling, in order to obtain clarification of the provisions of 
Article 35 of the Treaty on the Functioning of the European Union. 
4. In so far as the facts are concerned, it is observed that Hydroelectrica is a 
Romanian private-law company of which the State is the majority shareholder. Its 
business includes the production, transport and distribution of electricity. The 
company holds licenses for both the production and the supply of electricity. 
Hydroelectrica holds a trading license issued by the Hungarian energy regulatory 
authority. After obtaining that license, from December 2014 onwards, the 
company concluded electricity sale contracts via a centralised trading platform in 
Hungary, which is one of the markets recognised by the Agency for the 
Cooperation of Energy Regulators. 
On 13 February 2015, ANRE published on its website a communiqué entitled 
‘Interpretarea ANRE a prevederilor Legii energiei electrice și gazelor naturale nr. 
123/2012 cu privire la posibilitățile de export [de] energie electrică ale 
producătorilor’ (ANRE’s interpretation of the provisions of Law No 123/2012 in 
relation to the question whether producers may export electricity). In that 
communiqué, ANRE expressed its own position on how it would interpret 
Articles 23 and 28 of Law No 123/2012: ‘according to ANRE’s interpretation, all 
available electricity must be offered for sale in a transparent manner, publicly, 
without discrimination and centrally on Opcom’s platforms’, that is to say, on 
Romania’s centralised electricity market. 
On 11 May 11 2015, ANRE sent to Hydroelectrica the minutes in which an 
administrative fine (amendă contravențională) was imposed on the company for 
not having offered for sale in a transparent manner on the competitive electricity 
market in Romania all the electricity available to it and having exported some of 
the electricity it had produced to the Hungarian electricity market, in breach of the 
legislation in force (page 1, paragraph 3 of the minutes). 
In sanctioning Hydroelectrica, ANRE relied on the provisions of Article 23(1) and 
Article 28(c) of Law No 123/2012, which it interpreted as meaning that the 
obligation on national electricity producers to offer publicly and on a non-
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discriminatory basis on the competitive market all the electricity available to them 
meant that producers must offer for sale all the electricity they produce on the 
centralised national electricity market. 
Consequently, according to ANRE’s interpretation and application of Law 
No 123/2012, producers do not have the right to export electricity directly within 
the European Union. To do so would constitute an infringement of national law 
and, implicitly, of the conditions attaching to a production licence, which may be 
sanctioned with an administrative penalty or fine. In accordance with Article 93(4) 
of Law No 123/2012, the repeated commission of an administrative offence 
(contravenția) attracts a fine of between 1% and 5% of turnover for legal persons 
operating in the electricity market. According to the law, an administrative 
offence is committed repeatedly if the same actions which constitute the office are 
taken three or more times in the course of a year. 
Therefore, the consequence of treating the direct export of electricity as an 
administrative offence is that that activity is effectively prevented, given the 
severe sanctions that may be adopted by the authorities. 
On 27 May 2015, Hydroelectrica brought an action, registered at the Judecătoria 
Sectorului 1 București, seeking the annulment of the minutes and of the sanction 
adopted by ANRE. In support of its action, the company essentially makes the 
following points: 
(i) The minutes are unlawful in that they infringe Article 35 TFEU and amount 
in fact to an administrative measure restricting the free movement of electricity 
within the European Union. That measure has not been justified by ANRE by 
reference to any of the exceptions set out in Article 36 TFEU. 
(ii) The restriction of distribution channels, consisting in the obligation to 
conduct transactions exclusively through certain operators supervised or 
authorised by the State, is incompatible with European Union law. 
(iii) The minutes are unlawful in that they infringe national law, Article 23(1) 
and Article 28(c) of Law No 123/2012 containing no express restriction on 
exports within the European Union applicable to energy producers and no 
reference even to the territory of Romania. By means of the sanction adopted and 
recorded in the minutes, ANRE is restricting the freedom of trade of economic 
agents in the absence of an express legal prohibition, which is contrary to the 
principles of interpretation of Romanian law. 
(iv) In its report on the results of the sectoral inquiry into the electricity market 
of January 2014, the Romanian competition authority stated that ‘the provisions 
contained in [Law No 123/2012], which requires market participants to enter into 
wholesale transactions only on centralised markets must be interpreted as meaning 
that electricity producers are free to make export sales directly (or through 
companies within their group). 
ANRE 
 
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(v) By the measure which it has adopted, ANRE is unlawfully discriminating 
between Romanian producers and producers from other Member States: while the 
former may, according to ANRE’s interpretation, act only in the centralised 
Romanian market, the latter are free to trade, and actually do trade, both in the 
centralised market of their Member State of origin and on the centralised markets 
of other Member States, including Romania. 
Applicable national provisions and relevant national case-law 
5. The substantive law applicable to the dispute is Law No 123/2012. 
Article 2(c): Activities in the sector of electricity and heat produced in 
cogeneration shall be carried out in order to achieve the following basic 
objectives: to create and ensure the operation of competitive electricity markets. 
Article 2(h): Improving the competitiveness of the internal electricity market and 
active participation in the formation of both the regional market and the internal 
energy market of the European Union and participation in the development of 
cross-border exchanges. 
Article 3(49): For the purposes of this Title, the terms and expressions set out 
below shall have the following meanings: centralised electricity market — the 
framework within which trading in electricity is carried out between various 
economic operators, with the involvement of the electricity market operator or the 
manager of the transmission system, on the basis of specific rules, approved by 
the competent authority. 
Article 20(1): The electricity market is composed of the regulated market and the 
competitive market, and energy transactions shall be either wholesale or retail.  
Article 23(1): Trading in electricity shall be conducted on the competitive market, 
in a transparent, public, centralised and non-discriminatory manner. 
Article 28(c): Producers shall, principally, have the following obligations: to trade 
electricity and technological system services on the regulated and competitive 
market in a transparent and non-discriminatory manner. 
6. With reference to those legal provisions, in a similar case concerning the 
annulment of the minutes in which another producer of electricity was sanctioned 
by ANRE for the alleged infringement of Article 23(1) and Article 28(c) of Law 
No 123/2012, the Judecătoria Sectorului 2 București (Court of First Instance, 
Bucharest — Sector 2) held … as follows: 
‘... the defendant [ANRE — note of the referring court] has not proved and has 
not reasonably argued that the applicant has infringed the provisions of 
Article 23(1) of Law No 123/2012. 
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The fact that the applicant’s trade with CEZ a.s. was concluded outside the 
centralised platforms of OPCOM is true and undisputed. However, despite the 
assertion which the defendant makes in its counter-claim that Article 23(1) 
requires that trading is conducted in a transparent, public, centralised and non-
discriminatory manner, on OPCOM’s centralised platforms, the court notes that 
the text in question refers solely to the characteristics of transparency, publicness, 
centralisation and non-discrimination, and not to any obligation to trade only on 
the centralised platforms of OPCOM. 
In the minutes, the defendant explained that ‘outside the competitive market’ 
meant outside the centralised platforms of OPCOM, but neither in the minutes nor 
before this court has the defendant proven or argued that the centralised 
platforms of OPCOM constitute the only competitive market. This court also notes 
that Law No 123/2012 itself does not define the concept of competitive market ... 
Indeed, the defendant itself, in its position paper of 9 January 2013, asserted that 
any broader interpretation of the provisions of Article 23(1) of Law No 123/2012 
was liable to create an administrative barrier to cross-border trade in electricity, 
knowing that the related activities are subject to Community legislation on the 
removal of any constraints on the creation of the internal electricity market. 
This court therefore holds that trading outside OPCOM’s centralised platforms 
does not necessarily constitute an infringement of Article 23(1) of Law 
No 123/2012. 
It follows that, in order to substantiate the allegation that the act in question 
constituted an administrative offence, it was necessary for the defendant to prove 
or argue that the applicant’s transaction with CEZ a.s. was concluded outside the 
competitive market, in a manner that was not transparent, public, centralised and 
non-discriminatory. 
The defendant has not, however, put forward arguments or proof to that effect and 
has instead constructed its defence on the notion that trading outside OPCOM’s 
centralised markets is prohibited by law, which is an assertion that, as shown 
above, this court considers to be incorrect.’ 
Applicable provisions of European Union law 
7. Article 35 TFEU (ex Article 29 TEC): ‘Quantitative restrictions on exports, and 
all measures having equivalent effect, shall be prohibited between Member 
States.’ 
8. Article 36 [TFEU] (ex Article 30 TEC): The provisions of Articles 34 and 35 shall 
not preclude prohibitions or restrictions on imports, exports or goods in transit 
justified on grounds of public morality, public policy or public security; the 
protection of health and life of humans, animals or plants; the protection of 
national treasures possessing artistic, historic or archaeological value; or the 
ANRE 
 
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protection of industrial and commercial property. Such prohibitions or restrictions 
shall not, however, constitute a means of arbitrary discrimination or a disguised 
restriction on trade between Member States.’ 
The reasons that have led the referring court to request a preliminary ruling 
9. Hydroelectrica was sanctioned for ‘not having offered for sale in a transparent 
manner on the competitive electricity market in Romania all the electricity 
available to it and having exported some of the electricity it had produced to the 
Hungarian electricity market, in breach of the legislation in force’. 
At the same time, Article 35 TFEU, which is one of the legal bases of the action, 
prohibits quantitative restrictions on exports and measures having equivalent 
effect. Therefore, a preliminary question intended to clarify the compatibility with 
the TFEU of the interpretation given by ANRE of Law No 123/2012 is decisive to 
the outcome of the case. 
10. The Court of Justice of the European Union (‘the CJEU’) has not thus far analysed 
the compliance with the provisions of the TFEU of a law, regulation or 
administrative practice which restricts exports by requiring producers to sell 
energy solely through a trading platform registered in their home State. 
11. In accordance with [the second paragraph of] Article 267 TFEU, if a preliminary 
question is raised in a case pending before a court or tribunal, that court or tribunal 
may, if it considers that a decision on the question is necessary to enable it to give 
judgment, request the CJEU to give a ruling thereon. 
However, for the uniform application of European Union law in the Member 
States, it is necessary, where there is a doubt as to the compatibility with the 
Treaties of a given practice or national legislation, for the court hearing the case to 
refer a question to the CJEU for a preliminary ruling. 
On the other hand, there is an exception to this rule, one that must be interpreted 
narrowly: if a particular interpretation is certain, beyond any reasonable doubt, the 
national court may consider that the question is not necessary and directly apply 
European Union law. 
A situation of this kind was referred to, in the CILFIT case-law, as ‘the theory of 
acte clair’. The objective of this theory is to avoid congesting the CJEU with 
purely theoretical questions or questions unrelated to the settlement of a dispute. 
However, national courts cannot claim that a provision of the Treaty is clear 
unless it has been clarified in the case-law of the CJEU. If a national court refuses 
to refer a question to the CJEU, invoking the ‘theory of acte clair’, without any 
basis in the case-law, that could entail a violation of the right to a fair trial 
enshrined in Article 6(1) of the European Convention on the Protection of Human 
Rights and Fundamental Freedoms. To that effect, in Ullens de Schooten and 
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Rezabek v. Belgium, the European Court of Human Rights held that a refusal by a 
national court to use the preliminary reference mechanism could infringe the 
fairness of proceedings, even if the court is not ruling at last instance. 
Notwithstanding, in so far as it has any doubts as to the interpretation of the [FEU] 
Treaty and the compatibility of a domestic law with its provisions, the court must 
refer a question to the CJEU for a preliminary ruling. In other words, while the 
action could be upheld even without making a reference for a preliminary ruling, 
it could not be dismissed without first obtaining clarification, by means of a 
preliminary reference, of the compatibility of ANRE’s interpretation with 
Community law. Otherwise, Hydroelectrica’s right to a fair trial would be 
violated. 
... 
... [Signatures] 
Bucharest, 26 January 2017