Judgment;Summary — ECLI:EU:C:2023:694
Date: 2023-09-21
Language of the case: Romanian
Court formation: Ninth Chamber
Subject matter: Competition;Agreements, decisions and concerted practices;Right of establishment;Internal market - Principles;Economic and monetary policy;Consumer protection;Approximation of laws;Fundamental rights;European Convention on Human Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Romania

Summary C-510/22 ‒ 1 
Case C-510/22 
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: 
28 July 2022 
Referring court: 
Înalta Curte de Casație și Justiție (Romania) 
Date of the decision to refer: 
14 June 2022 
Appellant: 
Romaqua Group SA 
Respondents: 
Societatea Națională a Apelor Minerale 
Agenția Națională pentru Resurse Minerale 
  
Subject matter of the main proceedings 
Appeal brought by the appellant, Romaqua Group SA, against the respondents, 
Societatea Națională a Apelor Minerale SA (National Company Responsible for 
Mineral Waters) (SNAM) and the Agenția Națională pentru Resurse Minerale 
(National Agency for Mineral Resources) (ANRM), challenging the civil 
judgment of 11 June 2019 of the Curtea de Apel București ‒ Secția a VIII-a de 
contencios administrativ și fiscal (Court of Appeal, Bucharest, Romania – Eighth 
Chamber, dealing with administrative and tax matters) 
Subject matter and legal basis of the request 
In accordance with Article 267 TFEU, interpretation is sought of Article 106(1) 
TFEU, Articles 49 and 119 TFEU, and Article 3 of Directive 2009/54/EC 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-510/22 
 
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Questions referred for a preliminary ruling 
Is Article 106(1) TFEU to be interpreted as precluding provisions of national 
legislation, such as those at issue in the main proceedings, which maintain the 
direct, original and non-competitive award, to a company whose capital is wholly 
owned by the State, of licences for the exploitation of mineral water springs by 
means of successive and unlimited extensions of exclusive licences (available to 
the state-owned company)? 
Are Article 16 of the Charter of Fundamental Rights of the European Union, 
Articles 49 and 119 TFEU, and Article 3 of Directive 2009/54/EC on the 
exploitation and marketing of natural mineral waters to be interpreted as 
precluding provisions of national legislation, such as those at issue in the main 
proceedings and mentioned above, which introduce an unjustified restriction on 
the freedom to conduct a business, including the freedom of establishment? 
Provisions of European Union law and case-law relied on 
Treaty on the Functioning of the European Union: Articles 49 and 102, 
Article 106(1), and Article 119(1) 
Charter of Fundamental Rights of the European Union: Article 16 
Directive 2009/54/EC of the European Parliament and of the Council of 18 June 
2009 on the exploitation and marketing of natural mineral waters: recital 5 and 
Article 3 
Judgment of 17 July 2014, Commission v DEI (C-553/12 P), paragraphs 41 to 47 
Provisions of national law relied on 
Legea minelor nr. 61/1998 (Mining Law No 61/1998) 
Article 46: ‘(1) Public institutions, national mining companies and commercial 
companies shall continue their activities only at those sites which are under their 
management and at which, on the date of publication of this Law, they are 
carrying out authorised exploration, development or exploitation works. 
(2) Within 90 days of the date of the entry into force of this Law, public 
institutions, national mining companies and commercial companies which carry 
on mining activities shall complete the act of demarcating the exploration, 
development and exploitation perimeters of the sites referred to in paragraph 1 and 
shall apply to the competent authority for these to be assigned to them by way of 
management or concession, in accordance with this Law.’ 
Legea minelor nr. 85/2003 (Mining Law No 85/2003), repealing [Mining] Law 
No 61/1998 
ROMAQUA GROUP 
 
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Article 20(2): ‘Exploitation licences shall be granted for a maximum period of 
20 years, with a right of extension for successive periods of 5 years.’ 
Article 60(1): ‘The provisions of licences in force shall remain valid, for their 
entire duration, under the conditions in which they were concluded.’ 
Decision No 136/2001 of the Curtea Constituțională (Constitutional Court, 
Romania) declaring the first sentence of Article 40(1) of Legea nr. 219/1998 
privind regimul concesiunilor (Law No 219/1998 on the rules governing 
concessions) to be unconstitutional in so far as local public authorities are required 
to assign directly to specific legal persons, by means of concession contracts: (i) 
public property; (ii) public activities and services of local interest. 
Succinct presentation of the facts and procedure in the main proceedings 
1 Government Decision [(GD)] No 786/1997 established SNAM, a public limited 
company and Romanian legal person whose capital is wholly owned by the State. 
That company was created in the context of the reorganisation of the Regia 
Autonomă a Apelor Minerale din România (Autonomous Company Responsible 
for the Mineral Waters of Romania), whose purpose was ‘the exploitation and 
recovery of useful mineral substances in the deposits entrusted to its management, 
by means of commercial measures, geological and hydrogeological research, and 
recovery by way of bottling or tourism and spa activities using its own products, 
transport, storage, distribution and marketing’. 
2 By successive government decisions adopted in 1999 (GD No 489/1999, GD 
No 568/1999, GD No 695/1999 [and] GD No 1020/1999), approval was given for 
the grant by the ANRM (in its capacity as manager of the licences), by direct 
award to SNAM, of licences for the exploitation of all the mineral water resources 
that were being exploited in Romania at that time (30 aquifers) for a period of 
20 years. 
3 On 19 July 2016, Romaqua Group SA submitted a request to the ANRM for the 
immediate transfer of the exploitation licences for the Borsec and Stânceni 
perimeters, informing the ANRM that, when the licences previously awarded 
directly to SNAM expired in 2018, it should not renew them, but should organise 
a public tendering procedure for the grant of new licences, in accordance with the 
legal provisions in force. 
4 The ANRM refused to grant that request, stating that only SNAM could transfer 
the licences, with the ANRM’s prior consent, and that a public tendering 
procedure could be organised only if SNAM did not request the extension of the 
current licences. Extensions could be requested every five years and the ANRM 
could not oppose any such request. 
5 For its part, SNAM indicated that it was not interested in transferring the rights 
and obligations assumed under the two exploitation licences concerned. 
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6 On 2 November 2016, by application registered with the Court of Appeal, 
Bucharest, Romaqua Group SA brought an action against the defendant, the 
ANRM, seeking a declaration that the ANRM’s refusal to grant its request was 
unjustified and an order requiring the ANRM, upon the expiry, at the end of 2018, 
of the period for which Licences Nos 331/1999 (Borsec perimeter) and 585/1999 
(Stânceni perimeter) for the exploitation of mineral waters had been awarded to 
SNAM, to organise a public tendering procedure for the concession of 
exploitation activities for the following period, in accordance with the legal 
provisions in force. 
7 In support of its application, Romaqua Group SA stated that, although the 
legislation in force required that a tendering procedure be organised, the ANRM 
had awarded the licences referred to in paragraph 2 above directly to SNAM, 
pursuant to Article 40(1) of Law No 219/1998 on the rules governing concessions. 
8 Following Decision No 136/2001 of the Constitutional Court declaring 
Article 40(1) of Law No 219/1998 to be unconstitutional, and the entry into force 
of Mining Law No 85/2003, Article 18 of which provides that exploitation 
licences are to be granted to the successful tenderer in a public tendering 
procedure, the ANRM has also granted licences for the exploitation of mineral 
waters to companies other than SNAM, which nevertheless continues to hold an 
unjustified dominant position on the market for the exploitation of mineral waters. 
9 The ANRM stated in its defence that the licences had been awarded to SNAM in 
accordance with Article 46 of Mining Law No 61/1998, because SNAM had been 
carrying on mining activities within the Borsec and Sâncrăeni perimeters. 
10 The Court of Appeal, Bucharest, granted SNAM leave to intervene in the case 
and, on 11 June 2019, dismissed the action brought by Romaqua Group SA, 
finding, in essence, that Article 46 of [Mining] Law No 61/1998 applied, along 
with Article 20(2) of Mining Law No 85/2003 and Article 32(1) of GD 
No 1208/2003 approving the detailed rules for the application of Mining Law 
No 85/2003. 
11 Romaqua Group SA brought an appeal against the judgment of 11 June 2019 
before the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, 
Romania), the referring court, claiming, among other things, that the judgment 
under appeal is in breach of the principle of the primacy of EU law and requesting 
the referring court to submit a request for a preliminary ruling to the Court of 
Justice. 
The essential arguments of the parties in the main proceedings 
12 Romaqua Group SA maintains that the position taken by the ANRM and validated 
by the Court of Appeal, Bucharest, – according to which SNAM is entitled, under 
Article 20(1) and (2) of [Mining] Law No 85/2003, to request successive five-year 
extensions of licences and thus to retain, sine die, by extension, a right of 
ROMAQUA GROUP 
 
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exploitation resulting from a direct award – must be examined also in the light of 
EU law. 
13 SNAM in fact enjoys a dominant position in that it retains a special, exclusive 
right of access to resources that were being exploited in 1998. According to the 
appellant, however, the provisions of national law which enable that situation to 
exist are incompatible with the provisions of Article 106(1) TFEU and Article 102 
TFEU. The provisions of national law at issue have not only maintained special, 
exclusive rights, but also resulted in an abuse of a dominant position. 
14 Moreover, in light of Article 16 of the Charter and Articles 49 and 119 TFEU, 
read in conjunction with Article 3 of Directive 2009/54/EC, the national 
legislation at issue creates barriers to the market entry of other companies and 
constitutes a restriction on the freedom of establishment that does not appear to be 
justified. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
15 According to the referring court, the issues in the present case are the possibility 
of maintaining, by extension (in fact, without any limitation in time), licences that 
have been awarded directly (without any tendering procedure) and consequently 
the distortion of competition on the market in question (inasmuch as SNAM holds 
a dominant position by retaining a special, exclusive right of access to resources 
that were being exploited in 1998). 
16 Analysing successively the concepts of ‘public undertaking’ and ‘exclusive 
rights’, the High Court of Cassation and Justice observes that the provisions of 
Article 106 TFEU are applicable in the present case. 
17 As regards the first of those concepts, the referring court emphasises that SNAM 
is a public limited company and Romanian legal person whose capital is wholly 
owned by the State, such that it may be regarded as a ‘public undertaking’. 
18 As regards the second concept referred to above, although Article 10 of [Mining] 
Law No 61/1998 and, subsequently, [Mining] Law No 85/2003, in theory, leave 
open the possibility of access to mineral water resources, in reality that possibility 
is limited by the perpetuation of the licences awarded preferentially to SNAM in 
accordance with Article 46 of [Mining] Law No 61/1998. The unlimited, 
successive extension every five years of a privilege granted to SNAM creates a 
special, exclusive right in its favour and, at the same time, creates barriers to the 
market entry of other companies, that being an aspect emphasised also by the 
Consiliul Concurenței (Competition Council) in a report prepared following a 
sectoral investigation into the market for the exploitation of natural mineral water 
resources in Romania. 
19 Having regard also to paragraphs 41 to 47 of the judgment of 17 July 2014, 
Commission v DEI, (C-553/12 P), the referring court states that there are serious 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-510/22 
 
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doubts regarding the consistency of the provisions of national legislation relating 
to the extension of the licences at issue with the provisions of EU law relating to 
competition, freedom of establishment and the freedom to conduct a business on 
equal terms.