Judgment;Abstract — ECLI:EU:C:2023:273
Date: 2023-03-30
Language of the case: Italian
Court formation: Fifth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

summary of the Court’s case-law on the obligation to request a preliminary 
ruling] 
2.2 In the present case, first of all, the question is prima facie relevant, inasmuch 
as the argument directly concerns the existence, under the provisions of EU law 
relied upon, of the power exercised by means of the order to reimburse the sum 
referred to in the contested measure. 
Secondly, it does not appear that the provisions on which the appellant relies have 
yet been interpreted by the Court of Justice in connection with the admissibility of 
a prescriptive power such at that at issue. 
Thirdly, the answer is not sufficiently clear one way or the other, given both the 
vagueness of the matters mentioned by the State representative to support the 
existence of the contested power and the unusual nature of that power, as it has 
been described by the respondent ARERA. 
3 EU law 
3.1 In so far as relevant EU law is concerned, the most relevant legislation is 
that which, in the field of consumer protection with the aim of improving or 
completing the competitive markets in electricity, provides for the duties and 
powers of the regulatory authorities in the liberalised services markets, and in 
particular Article 37 of Directive 2009/72/EC of 13 July 2009. 
More specifically, of relevance is Article 37(1)(i) – ‘monitoring the level of 
transparency, including of wholesale prices, and ensuring compliance of 
electricity undertakings with transparency obligations’ – and Article 37(1)(n), 
which provides for the regulatory authority’s role in ‘helping to ensure, together 
with other relevant authorities, that the consumer protection measures, including 
those set out in Annex I, are effective and enforced’. Annex I states that customers 
have a right to a contract that specifies, inter alia, ‘any compensation and the 
refund arrangements which apply if contracted service quality levels are not met, 
including inaccurate and delayed billing’. 
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Also relevant is Article 37(4), which provides that ‘Member States shall ensure 
that regulatory authorities are granted the powers enabling them to carry out the 
duties referred to in paragraphs 1, 3 and 6 in an efficient and expeditious manner. 
For this purpose, the regulatory authority shall have at least the following 
powers: … (d) [the power] to impose effective, proportionate and dissuasive 
penalties on electricity undertakings not complying with their obligations under 
this directive or any relevant legally binding decisions of the regulatory authority 
or of the Agency, or to propose that a competent court impose such penalties. This 
shall include the power to impose or propose the imposition of penalties of up to 
10% of the annual turnover of the transmission system operator on the 
transmission system operator or of up to 10% of the annual turnover of the 
vertically integrated undertaking on the vertically integrated undertaking, as the 
case may be, for non-compliance with their respective obligations pursuant to this 
directive’. 
4 National law 
4.1 In so far as concerns the content of the provisions of national law 
implementing the abovementioned EU legislation that are relevant in the present 
case, the rules applied by the authority make reference to the prescriptive power 
referred to in Article 2(20)(d) of Law No 481/1995, set out as following in the 
decision imposing the reimbursement order at issue: ‘(d) to order the entity 
providing the service to cease any conduct prejudicial to the rights of users and to 
impose, pursuant to paragraph 12(g), an obligation to pay compensation’. 
Article 2(12)(g) of Law No 481/1995, in turn, entrusts the authority with the 
following tasks: to monitor performance of the services, with powers of 
inspection, access, acquisition of documents and all useful information, and to 
determine the cases where compensation is automatically payable by the entity 
providing the service to the user where that entity fails to observe contractual 
terms and conditions or provides the service at lower levels of quality than those 
stipulated in the service regulations referred to in paragraph 37, or in the 
programme contract, or as referred to in point (h)’. 
In implementation of those provisions, the authority penalised the contractual 
provision referred to in the facts and ordered that customers be reimbursed the 
sums they had been charged on that account. 
5 Relevant principles and the consistency with EU law of the prescriptive power 
exercised by the authority. 
Having identified the relevant materials in the present case, it is appropriate to 
recall the existing principles of EU law referred to. 
In general terms, Directive 2009/72 is aimed essentially at creating an open and 
competitive internal market in the electricity sector, where every consumer has a 
free choice of supplier and every supplier may freely provide services to its 
customers, to create a level playing field in the electricity market, to ensure a 
REQUEST FOR A PRELIMINARY RULING OF 31. 12. 2021 – CASE C-5/22 
 
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secure supply of energy and to combat climate change. In order to pursue those 
objectives, Directive 2009/72 confers wide powers on the national regulatory 
authority to regulate and monitor the market in electricity (see the judgment of 
11 June 2020, [Prezident Slovenskej republiky, C-378/19, EU:C:2020:462, 
paragraph 23]).  
With particular reference to the provision in question, it has been held that 
Article 37 of Directive 2009/72 does not require Member States necessarily to 
confer competence on the electricity market regulatory authority to settle disputes 
between household customers and transmission and distribution system operators. 
Under that directive, Member States may confer competence to settle disputes 
between customers and electricity undertakings out of court upon an authority 
other than the regulatory authority, provided that it is independent and exercises 
that competence by implementing rapid, effective, transparent, simple and 
inexpensive procedures for the handling of complaints, enabling disputes to be 
settled fairly and promptly (judgment of 23 January 2020, [Energiavirasto, 
C-578/18, EU:C:2020:35, paragraph 39]). 
According to the appellant’s arguments, the domestic legislation that has been 
applied, in so far as it is understood as permitting the order requiring the 
reimbursement of sums of money paid under private contractual relationships, is 
contrary to EU law, which precludes any such extension of the authoritative 
power entrusted to the regulatory authority.  
6 For all the foregoing reasons, the court thus considers that the issues raised 
deserve to be addressed in a preliminary ruling of the Court of Justice on the 
following question: 
‘1. Are the provisions of EU law contained in Directive 2009/72/EC of the 
European Parliament and of the Council of 13 July 2009 – and in particular in 
Article 37(1) and (4), governing the powers of the regulatory authorities, and in 
Annex I – to be interpreted as including a prescriptive power exercised by the 
Italian electricity market regulatory authority (Autorità di Regolazione per 
Energia Reti e Ambiente) (ARERA), in relation to companies operating in the 
electricity sector, whereunder the authority may order such a company to 
reimburse customers, including former customers and customers in arrears, sums 
of money paid by such customers to cover administrative management costs, 
pursuant to a contractual term that has been penalised by the authority? 
2. Are the provisions of EU law contained in Directive 2009/72/EC of the 
European Parliament and of the Council of 13 July 2009 – and in particular in 
Article 37(1) and (4), governing the powers of the regulatory authorities, and in 
Annex I – to be interpreted as including, within the scope of any compensation 
and the refund arrangements which apply to customers in the electricity market if 
contracted service quality levels are not met by the market operator, the 
reimbursement of moneys paid by such customers that are expressly governed by 
a contractual term in an agreement that has been signed and accepted and bear 
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no relationship to service quality itself but are stipulated as covering the 
economic operator’s own administrative management costs?’ 
… stays the present proceedings … [procedure] 
FOR THOSE REASONS 
the Consiglio di Stato, Judicial Section (Sixth Chamber), makes the present 
interlocutory order and requests the secretariat to send the case file to the Court of 
Justice of the European Union, pursuant to Article 267 of the Treaty on the 
Functioning of the European Union, …. 
Rome … 16 December 2021 …