Opinion of the Advocate General — ECLI:EU:C:2004:671
Date: 2004-10-28
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Energy;Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Preliminary rulings — Jurisdiction of the Court — Limits — Questions that are manifestly irrelevant and hypothetical questions referred in a context which rules out any purposeful reply (Art. 234 EC) 2. Approximation of laws — Measures intended for the establishment and operation of the internal market in electricity — Directive 96/92 — Rule of non-discriminatory access to the electricity transport network — Scope of Articles 7(5) and 16 — Application to all discrimination — Possibility of securing derogating measures via the procedure set out in Article 24 (European Parliament and Council Directive 96/92, Arts 7(5), 16 and 24) 3. Community law — Principles — Protection of legitimate expectations — Limits — Prudent and circumspect trader 4. Community law — Principles — Legal certainty — Meaning — Rules adversely affecting individuals — Requirement of clarity and precision — Legislative amendments — Whether permissible — Taking of particular situations into account 1. Within the framework of the cooperation between the Court and national courts and tribunals established by Article 234 EC, it is for the national court alone to determine, in the light of the particular circumstances of the case before it, both the need for a preliminary ruling to enable it to deliver judgment and the relevance of the questions which it submits to the Court. The Court can refuse a request submitted by a national court only where it is manifestly obvious that the ruling sought by that court on the interpretation of Community law bears no relation to the actual facts of the main action or its purpose or that the problem is general or hypothetical. (see para. 34) 2. Articles 7(5) and 16 of Directive 96/92 concerning common rules for the internal market in electricity, which require that the action of the system operator and that of the State in creating access to the system should be non-discriminatory, are not limited to covering technical rules but apply to all discrimination. Those articles preclude national measures that grant an undertaking, by reason of commitments given before the directive entered into force, preferential capacity for the cross-border transmission of electricity, whether those measures derive from the system operator, the controller of system management or the legislature, in the case where such measures have not been authorised within the framework of the procedure set out in Article 24 of that directive, which, in order to tone down some of the consequences of liberalisation, provides for the possibility of applying a transitional regime under certain conditions. (see paras 45-47, 57, 71, operative part 1, 2) 3. The principle of the protection of legitimate expectations is one of the fundamental principles of the Community. Any trader on the part of whom an institution has promoted reasonable expectations may rely on that principle. However, if a prudent and circumspect trader can foresee the adoption of a Community measure that is likely to affect his interests, he cannot plead that principle if such a measure is adopted. (see paras 73, 74) 4. The principle of legal certainty requires that rules involving negative consequences for individuals should be clear and precise and that their application should be predictable for those subject to them. An individual cannot, however, place reliance on there being no legislative amendment whatever, but can call into question only the arrangements for the implementation of such an amendment. Likewise, the principle of legal certainty does not require that there be no legislative amendment, requiring as it does, rather, that the legislature take account of the particular situations of traders and provide, where appropriate, adaptations to the application of the new legal rules. (see paras 80, 81)