Judgment;Summary — ECLI:EU:C:2020:270
Date: 2020-04-02
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Energy;Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation C-765/18 – 1 
Case C-765/18 
Request for a preliminary ruling 
Date lodged: 
6 December 2018 
Referring court: 
Landgericht Koblenz (Germany) 
Date of the decision to refer: 
1 October 2018 
Claimant in the main proceedings and defendant in respect of the 
counterclaim: 
Stadtwerke Neuwied GmbH 
Defendant in the main proceedings and claimant in respect of the 
counterclaim: 
RI 
      
[…] 
Landgericht Koblenz  
(Regional Court, Koblenz) 
ORDER 
In the matter of 
Stadtwerke Neuwied GmbH, […] Neuwied 
– claimant in the main proceedings and defendant in respect of the 
counterclaim – 
EN 
REQUEST FOR A PRELIMINARY RULING OF 1 OCTOBER 2018 – CASE C-765/18 
 
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[…] 
and 
RI, […] Neuwied 
– defendant in the main proceedings and claimant in respect of the 
counterclaim – 
[…] 
concerning a utilities claim, 
on 1 October 2018, the 4th Civil Chamber of the Landgericht Koblenz […] 
ordered: 
I. The proceedings are stayed. 
II. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
1. 
Is Article 3(3) of Directive 2003/55/EC of the European Parliament and of 
the Council of 26 June 2003 concerning common rules for the internal 
market in natural gas and repealing Directive 98/30/EC [Or. 2] (OJ 2003 
L 175, p. [57]), read in conjunction with points (b) and (c) of Annex A 
thereto, to be interpreted as meaning that failure to give gas customers 
timely and direct notice of the preconditions, reasons for and extent of an 
imminent change in the tariff for gas supplies precludes the effectiveness of 
such a change in tariff? 
2. 
If that question is answered in the affirmative: 
Has Article 3(3) of Directive 2003/55/EC of the European Parliament and of 
the Council of 26 June 2003 concerning common rules for the internal 
market in natural gas and repealing Directive 98/30/EC, read in conjunction 
with points (b) and (c) of Annex A thereto, had direct effect since 1 July 
2004 in respect of a supply company incorporated under private law (as a 
German GmbH), because the abovementioned provisions of that directive 
are unconditional, so far as their subject matter is concerned, and can 
therefore be applied without any further implementing act, and confer rights 
on citizens vis-à-vis an organisation which, despite its private-law legal 
form, is subject to the authority of the State because the State is the sole 
shareholder in the undertaking? 
STADTWERKE NEUWIED 
 
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Grounds: 
A. 
The claimant, a municipal service provider incorporated in the legal form of a 
GmbH (a private limited company incorporated under German law), supplied, 
inter alia, natural gas to the defendant from 28 July 2004 for a property in 
Neuwied at a ‘420 SWN Erdgas Pro50 Mengentarif’ rate (the 420 Stadtwerke 
Neuwied gas per50 usage tariff, ‘the 420 tariff’). The parties dispute whether that 
tariff arises from a special commercial contract or a basic supply tariff. The parties 
are in dispute as to the validity of several unilateral gas price increases planned by 
the claimant. 
The claimant claims arrears in the amount of EUR 1 334.71. 
The defendant has brought a counterclaim. It seeks findings that the claimant’s 
recent price changes of 1 April 2005, 1 January 2005, 1 July2005, 1 October 2007, 
1 January 2006, 10 March 2006, 1 April 2006, 1 May 2006, 1 August 2006, 
15 February 2007, 1 April 2007, 1 December 2007, 5 December 2007, 1 January 
2008, 1 April 2008, 3 April 2008, 1 October 2008, 1 January 2009, [Or. 3] 1 April 
2009, 1 September 2009, 1 January 2010, 1 October 2010, 1 May 2011 and 
1 September 2011 are unfair and void, that instalment payments in the amount of 
EUR 98 notified by the claimant in a letter of 24 January 2012 are unfair and void, 
that the claimant’s final gas bills of 13 April 2005, 10 April 2006, 23 January 
2007, 22 January 2007, 22 January 2008, 12 March 2008, 20 January 2009, 
22 January 2010, 21 January 2011 and 24 January 2012, based on the amount of 
gas consumed, are unfair and void and that the defendant is contractually entitled 
to reimbursement from the claimant for its gas consumption as supplied from 
1 January 2005 to 31 December 2011. 
The claimant is a basic supplier within the meaning of Paragraph 36(2) of the 
Gesetz über die Elektrizitäts- und Gasversorgung (Energiewirtschaftsgesetz, Law 
on the supply of electricity and gas, ‘the EnwG’). In accordance with Paragraph 
36(2) of the EnwG, the fact that the claimant is a basic supplier has been 
published on the claimant’s homepage. The claimant also stated on that homepage 
its general tariffs and prices, such as the 420 tariff, which is at issue in the present 
case. In addition, the claimant has published the conditions for changes to the 
contract under the third sentence of Paragraph 115(2) of the EnwG. The 
Verordnung über Allgemeine Bedingungen für den Netzanschluss und dessen 
Nutzung für die Gasversorgung in Niederdruck 
(Niederdruckanschlussverordnung, Regulation on general terms and conditions 
for network connections and their use for low pressure gas supplies, ‘the NDAV’) 
and the Verordnung über Allgemeine Bedingungen für die Grundversorgung von 
Haushaltskunden und die Ersatzversorgung mit Gas aus dem Niederdrucknetz 
(Gasgrundversorgungsverordnung, Regulation on general terms and conditions 
for the basic supply of residential customers and for the auxiliary supply of gas 
REQUEST FOR A PRELIMINARY RULING OF 1 OCTOBER 2018 – CASE C-765/18 
 
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from the low pressure grid, ‘the GasGVV’) are provided on its homepage. 
However, customers were not notified of the prices changes directly. 
The claimant takes the view that the gas tariff for which the defendant is eligible 
is a general tariff within the meaning of Paragraph 6 of the EnwG 1935, 
Paragraphs 1 and 2 of the Verordnung über allgemeine Tarife für die Versorgung 
mit Gas (Bundestarifordnung Gas, Regulation on general tariffs for the supply of 
gas, ‘the BTO Gas’), Paragraphs 1 and 4 of the Verordnung über Allgemeine 
Bedingungen für die Gasversorgung von Tarifkunden (Regulation on general 
terms and conditions for gas supplies to tariff customers, ‘the AVBGasV’), 
Paragraph 10 of the EnwG 1998 and Paragraph 36 of the EnwG 2005, and not a 
special tariff. Moreover, it claims that it distinguishes between the small-usage 
tariff and several basic price tariffs merely in accordance with the requirements of 
Paragraph 6(1) of the EnwG 1935. This does not mean, however, that all tariffs, 
excluding the small usage tariff, must be regarded as special tariffs. In fact, they 
are different general tariffs which are offered to all. 
It claims that it has merely passed on changes in operational costs to its customers. 
In that regard, it claims to have also taken account of savings in other areas of the 
gas market. This has also been confirmed by the TÜV Rheinland (Technical 
Control Association, Rhineland) in an assessment commissioned by the claimant. 
The claimant claims that, on the basis of the end-of-year gas bill for 2005 and an 
itemised bill of 10 April 2006, it is entitled to the payment of EUR 303.51 from 
the defendant. Following the end-of-year gas bill for 2006 and an itemised bill of 
23 January 2007, taking account of the claim from 2005, it is entitled to EUR 
303.51. Following the end-of-year gas bill for 2007 and an itemised bill of 22 
January 2008 it is still entitled, again including the claim from 2005, to EUR 1 
334.71. [Or. 4] 
The claimant has provided a breakdown of ‘Changes to gas prices (increases and 
decreases)’ in Annex K10. 
The defendant takes the view that the claimant is not legally entitled to change its 
prices and that the energy prices claimed by the claimant are unfair. It submits that 
the contract concluded between the parties must be characterised as a commercial 
contract without price controls, since the energy prices charged to the defendant 
derogate from the claimant’s general tariff applicable to all on account of the fact 
that the condition of an annual minimum consumption of gas was not met. It 
asserts that the terms of the AVBGasV were not validly incorporated into the 
contract. Even had they been validly incorporated, a unilateral right to determine 
prices under Paragraph 4 of the AVBGasV would fall foul of fairness controls. 
Such a right is not transparent and therefore invalid. It is not possible to predict in 
what way and according to what criteria prices may be changed. Moreover, that 
right unduly prejudices the defendant in breach of the rule of good faith. 
B. 
STADTWERKE NEUWIED 
 
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The success of the claim and of the counterclaim depend on the interpretation of 
Article 3(3) of Directive 2003/55/EC of the European Parliament and of the 
Council of 26 June 2003 concerning common rules for the internal market in 
natural gas and repealing Directive 98/30/EC (‘Gas Directive 2003/55/EC’), read 
in conjunction with points (b) and (c) of Annex A thereto. Prior to a decision on 
the claim and on the counterclaim, the Landgericht Koblenz has therefore decided 
to stay the proceedings in order to obtain a preliminary ruling from the Court of 
Justice of the European Union pursuant to the second paragraph of Article 267 
TFEU. 
I. 
In the view of the Landgericht Koblenz, the claimant has sufficiently substantiated 
the argument to the satisfaction of the requirements set out by the 
Bundesgerichtshof that it is entitled to increase gas prices. The Chamber is also of 
the view that the claimant has performed its obligations pursuant to a basic supply 
contract. 
The Landgericht Koblenz takes the view, however, that the effectiveness of the 
increases in gas prices is precluded by the failure to give timely prior notice 
directly to the defendant because the requirements relating to transparency under 
Article 3(3) of Gas Directive 2003/55/EC, read in conjunction with points (b) and 
(c) of Annex A thereto, are directly applicable in the present case. However, this 
perspective presupposes that compliance with [Or. 5] the requirements relating to 
transparency laid down by the directive is a condition for the effectiveness of an 
increase in gas prices, that is to say, that a failure by the gas service provider to 
fulfil the relevant obligation would therefore not merely ground a claim for 
damages on the part of the customer concerned. It also presupposes that the 
claimant is to be regarded, despite its private-law legal form, as an organisation or 
body for the purposes of the case-law of the Court of Justice of the European 
Union concerning the direct effect of a directive which has not been transposed 
into domestic law. 
1. 
The Bundesgerichtshof has, inter alia, in […] judgments of 28 October 2015 […] 
held that a right to change prices in conformity with the transparency requirements 
of the Gas Directive 2003/55/EC cannot be inferred from an interpretation in 
conformity with the directive of Paragraph 4(1) and (2) of the AVBGasV of 
21 June 1979 (BGBl. 1979 I, p. 676) or of the provisions of the EnwG concerning 
the basic supply, since such an interpretation would depart from the apparent will 
of the national legislature. According to the Bundesgerichtshof, the transparency 
requirements of Article 3(3) of, read in conjunction with Annex A to, Gas 
Directive 2003/55/EC also did not have direct effect in that case. In fact, Gas 
Directive 2003/55/EC was not transposed timeously into national law and nor did 
such a transposition enter into force within the relevant period for the purposes of 
that case. It was, however, not obvious whether the claimant in that case was an 
REQUEST FOR A PRELIMINARY RULING OF 1 OCTOBER 2018 – CASE C-765/18 
 
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organisation or body within the meaning of the case-law of the Court of Justice at 
that time. According to the Bundesgerichtshof, due to the irreparable non-
conformity of Paragraph 4(1) and (2) of the AVBGasV with sentences 4 to 6 of 
Article 3(3) of Gas Directive 2003/55/EC, read in conjunction with Annex A to 
that directive, the claimant’s right to change its prices could (henceforth) not be 
based on that provision. That did not, however, lead to the invalidity of the price 
increase at issue, since the claimant was entitled to change its prices due to the 
possibility of a broad interpretation of the will of the parties to that contract for the 
supply of gas. 
In a judgment of 9 December 2015 […], the Bundesgerichtshof also held that, 
since the entry into force of the second sentence of Paragraph 5(2) of the GasGVV 
of 26 October 2006 (BGBl. 2006 I, pp. 2391 and 2397), in addition to the public 
disclosure of price changes condition for validity set out in Paragraph 4(1) and (2) 
of the AVBGasV, a gas supplier is required to inform its customers of price 
changes by letter and publish those changes on its homepage. This is, however, 
not a requirement for validity, but merely serves the purposes of simplifying 
notification for customers. [Or. 6] 
2. 
If Article 3(3) of Gas Directive 2003/55/EC, read in conjunction with points (b) 
and (c) of Annex A thereto, is to be construed as meaning that giving the customer 
direct notice of the increase in charges is a condition for the effectiveness of the 
increase in relation to the customer concerned and the abovementioned provisions 
of the directive have direct effect, the claim brought by the claimant must be 
dismissed. 
(a) 
According to the case-law of the Court of Justice of the European Union, to which 
the Bundesgerichtshof also refers in its abovementioned judgments of 28 October 
2015, whenever the provisions of a directive appear, so far as their subject matter 
is concerned, to be unconditional and sufficiently precise, they may be relied upon 
before the national courts by individuals against the State where the latter has 
failed to implement the directive in domestic law by the end of the period 
prescribed or where it has failed to implement the directive correctly (Court of 
Justice of the European Union, Case 41/74 van Duyn [1974] ECR 1337, 
paragraph 9 et seq.; Case C-148/78 Ratti [1979] ECR 1629, paragraph 18 et seq.; 
Case 8/81 Becker [1982] ECR 53, paragraph 17 et seq.; Case 152/84 Marshall 
[1986] ECR 723, paragraph 46 et seq.; Case 103/88 Fratelli Costanzo SpA [1989] 
ECR 1839, paragraph 28 et seq.; Joined Cases C-397/01 to 403/01, [...]  Pfeiffer 
and Others [2004] 1 ECR 8835, paragraph 103; ... (‘vertical direct effect’)). Thus, 
individuals may also rely on unconditional and sufficiently precise provisions of a 
directive against organisations or bodies — irrespective of their legal form — 
which are subject to the authority or control of the State or have special powers 
beyond those which result from the normal rules applicable to relations between 
STADTWERKE NEUWIED 
 
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individuals (Court of Justice of the European Union, Case C-188/89 Foster and 
Others [1990] ECR I-3313 paragraph 17 et seq.; Joined Cases C-253/96 to 
C-258/96 [1997] ECR I-6907, paragraph 46 et seq.). 
(b) 
The claimant is incorporated under private law in the form of a limited liability 
company. However, as a municipal undertaking, it is subject to the control of the 
State, and it is required to provide services in the general interest to the public. 
The Stadt Neuwied (City of Neuwied) is the sole shareholder in the claimant. The 
mayor of Stadt Neuwied is a member of the claimant’s supervisory board. The 
claimant would therefore appear, despite its private-law legal form, to be a body 
within the meaning of the abovementioned case-law of the Court of Justice. 
As, in the view of the Landgericht Koblenz, the abovementioned directive is 
sufficiently precise, the defendant would appear to be able to rely on it directly as 
against the claimant. If [Or. 7] giving the customer timely direct notice is a 
condition for the effectiveness of the increase in gas prices asserted against him, 
the claimant would in that case be able to charge the defendant only costs based 
on the originally stipulated prices. The claim would therefore be unsuccessful, but 
the counterclaim successful. 
[…]