Information;Order — ECLI:EU:C:2025:781
Date: 2025-10-07
Language of the case: Romanian
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Romania

Summary C-775/23 – 1 
Case C-775/23 
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:  
15 December 2023 
Referring court:  
Curtea de Apel București (Romania) 
Date of the decision to refer:  
6 October 2023 
Applicant:  
Bursa Română de Mărfuri SA 
Defendant:  
Autoritatea Națională de Reglementare în Domeniul Energiei 
(ANRE) 
Interveners:  
European Federation of Energy Traders 
London Energy Brokers’ Association –LEBA 
European Venues & Intermediaries Association – EVIA 
  
Subject matter of the main proceedings 
Action by which the applicant Bursa Română de Mărfuri SA is asking the Curtea 
de Apel București (Bucharest Court of Appeal, Romania), first, to annul the letter 
by which the defendant, Autoritatea Națională de Reglementare în Domeniul 
Energiei (National Energy Regulatory Authority, Romania; ‘ANRE’) refused to 
grant it a licence for the organisation and operation of the centralised electricity 
markets and, second, to order the defendant to grant it that licence. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-775/23 
 
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Subject matter and legal basis of the request 
In accordance with Article 267 TFEU, the referring court is seeking clarification 
as to the interpretation of Articles 35, 49 and 56 TFEU and Articles 102 and 
106(1) TFEU, the latter two articles in conjunction with Article 4(3) TEU, in 
order to determine whether those provisions preclude national legislation 
requiring the grant of a single licence for the operation of the electricity market 
and requiring national and European electricity producers to offer for sale all 
electricity available to them on the platforms managed by the only national 
electricity market operator. 
Questions referred for a preliminary ruling 
1. Does a national provision that requires the grant of a single licence for the 
operation of the electricity market constitute an infringement of the freedom of 
establishment laid down in Article 49 of the Treaty on the Functioning of the 
European Union or of the freedom to provide services laid down in Article 56 of 
the Treaty on the Functioning of the European Union? 
2. Should Article 35 of the Treaty on the Functioning of the European Union 
be interpreted as meaning that national legislation requiring national and European 
electricity producers to offer for sale all the electricity available to them on the 
platforms managed by the only operator designated for national electricity market 
trading services constitutes a measure having equivalent effect to a quantitative 
restriction on exports that cannot be justified on grounds of public security 
connected to the security of energy supply, in so far as such legislation is not 
proportionate to the objective pursued? 
3. Should Articles 102 and 106(1) of the Treaty on the Functioning of the 
European Union, read in conjunction with Article 4(3) of the Treaty on European 
Union, be interpreted as meaning that national legislation which provides that, at 
the level of that Member State, one single licence may be granted for the purposes 
of carrying out intermediation services in respect of offers to sell and bids to buy 
electricity on the forward wholesale market, constitutes a restriction of 
competition for the purposes of those provisions? 
Provisions of European Union law and case-law relied on 
Article 4(3) TEU and Articles 35, 49, 56, 102 and 106 TFEU 
Directive 2014/24/EU of the European Parliament and of the Council of 
26 February 2014 on public procurement and repealing Directive 2004/18/EC 
Regulation (EU) 2019/943 of the European Parliament and of the Council of 
5 June 2019 on the internal market for electricity 
BURSA ROMÂNĂ DE MĂRFURI 
 
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Judgment of 2 March 2023, Bursa Română de Mărfuri (C-394/21) 
Judgment of 15 November 2016, Ullens de Schooten (C-268/15) 
Provisions of national law and case-law relied on 
Legea energiei electrice și a gazelor naturale nr. 123/2012 (Electricity and 
Natural Gas Law), Article 10(2)(a) to(f), in the version in force on 21 September 
2021 
‘The competent authority shall issue licences for: 
a) the commercial exploitation of electricity production capacities and energy 
storage facilities added to production capacity; 
b) the commercial exploitation of electricity and heat production capacity from 
combined heat and power plants and energy storage facilities added to production 
capacity; 
c) the provision of the electricity transmission service; 
d) the provision of the system service; 
e) the provision of the electricity distribution service; 
f) the operation of the centralised markets – a single electricity market 
operator’s licence and a single balancing market operator’s licence shall be 
granted.’ 
Legea energiei electrice și a gazelor naturale nr. 123/2012 (Electricity and 
Natural Gas Law), Article 10(2)(a) to (f), as amended on 28 December 2021 by 
Decree-Law No 143/2021 
‘ANRE shall issue licences for: 
a) the commercial exploitation of production capacities and, where applicable, 
energy storage facilities added to the corresponding production capacities; 
b) the commercial exploitation of electricity and heat production capacity from 
combined heat and power plants and, where applicable, energy storage facilities 
added to the corresponding production capacities; 
c) the provision of the electricity transmission service and grid-balancing 
services; 
d) the provision of the electricity distribution service; 
e) the activities of the electricity market operator; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-775/23 
 
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f) electricity supply activities.’ 
Legea nr. 554/2004 a contenciosului administrativ (Law No 554/2004 on 
administrative disputes), Article 1, which establishes that any person who believes 
that his or her right or legitimate interest has been infringed by a public authority 
through an administrative act or because he or she has not received a reply to a 
request within the mandated time limit has the right to bring an action before the 
competent administrative disputes body; Articles 8(1) and 8(11), according to 
which natural and legal persons may bring actions for the protection of a 
legitimate public interest only in the alternative, where the injury to the legitimate 
public interest is logically derived from the infringement of a subjective right or 
legitimate private interest; and Article 2(1)(r), which defines a legitimate public 
interest as an interest relating to the legal system and constitutional democracy, 
the guaranteeing of the fundamental rights, freedoms and duties of citizens, the 
fulfilment of Community requirements, and the fulfilment of the tasks of public 
authorities. 
Decizia nr. 53/2014 a Curții Constituționale (Decision No 53/2014 of the 
Romanian Constitutional Court), which held that Article 10(2)(f) of Law 
No 123/2012, the Electricity and Natural Gas Law, is constitutional with regard to 
the criticisms made by Bursa Română de Mărfuri SA in Case No 9.657/2/2012 
before the Bucharest Court of Appeal. 
Succinct presentation of the facts and procedure in the main proceedings 
1 In accordance with Legea privind bursele de mărfuri nr. 357/2005 (Law 
No 357/2005 on commodities exchanges), the applicant has had, since 1992, the 
status of an autonomous institution with general competence to operate markets of 
public interest. 
2 On 20 August 2020, the applicant applied to ANRE, in accordance with 
Regulation No 2019/943, for a licence to organise and operate centralised 
electricity markets, and submitted all of the documentation required by ANRE 
Order No 12/2015. 
3 By action registered before the Curtea de Apel București (Bucharest Court of 
Appeal) No 5366/2/2020, the applicant sought annulment of Notice 
No 73800/21.09.2020 issued by ANRE and an order that that public authority 
issue a licence to it for the organisation and operation of centralised electricity 
markets. 
4 In the pleas stated in its application, the applicant argued, on the basis of 
Regulation No 2019/934, that ANRE was obliged not only to allow, but also to 
effectively ensure competition between electricity market operators, in order to 
avoid the emergence of an anti-competitive monopoly. 
BURSA ROMÂNĂ DE MĂRFURI 
 
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5 ANRE justified its refusal to grant the licence applied for by invoking the 
provisions of Article 10(2)(f) of Law No 123/2012 on Electricity and Natural Gas, 
which establishes that there exists in Romania a statutory monopoly on the 
operation of the centralised electricity markets exercised by the Operatorul Pieței 
de Energie Electrică și de Gaze Naturale (Electricity and Natural Gas Market 
Operator), OPCOM SA, a public undertaking and subsidiary of the national 
electricity transmission system operator Transelectrica. It also stated that 
Regulation No 2019/943 does not contain any provision requiring the Member 
States to designate more than one operator to perform the task of organising and 
operating centralised electricity markets for the purposes of wholesale electricity 
trading. 
6 For its part, the European Federation of Energy Traders, based in Amsterdam in 
the Netherlands, and which claims to represent the interests of more than 100 
energy market companies operating in more than 27 European states, intervened 
in the case in support of the applicant, and pointed out that its access to the 
Romanian electricity market is restricted due to ANRE’s unjustified refusal to 
process its application for a licence to organise and operate centralised electricity 
markets. Moreover, as it is required to act solely on the platform operated by 
OPCOM, its trading operations are severely restricted both in Romania and across 
borders, which has serious economic consequences. 
7 In the course of the proceedings, the Bucharest Court of Appeal referred a 
question to the Court of Justice for a preliminary ruling. The Court gave its ruling 
on 2 March 2023 in Bursa Română de Mărfuri (C-394/21). 
8 While the Court of Justice was dealing with Case C394/21, Article 10 of Law 
No 123/2012 was amended on 28 December 2021 by Decree-Law No 143/2021. 
9 On 20 March 2022, ANRE issued licence No 2314 to the applicant for the activity 
of electricity market operator, in accordance with Article 10(2)(e) of Law 
No 123/2012, as amended by Decree-Law No 143/2021. 
10 Following the resumption of the case, the London Energy Brokers’ Association 
(LEBA) and the European Venues and Intermediaries Association (EVIA) 
intervened in support of the applicant, stating that their members, which represent 
a significant part of the European energy trading network, are unable to 
independently provide brokering services in the energy market because the only 
market operator is OPCOM, which is regulated by the State. 
11 The London Energy Brokers’ Association explained that it is a division of the 
European Venues and Intermediaries Association and that it represents European 
brokerage firms operating at a European level, both on organised markets 
regulated by Regulation (EU) No 1227/2011 and in organised trading systems 
regulated by Regulation (EU) No 600/2014. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-775/23 
 
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12 LEBA members represent a considerable share of the European energy trading 
network, as they handle more than half of the gas, electricity and wholesale 
emissions trading activity. 
13 At the request of the applicant, the Bucharest Court of Appeal decided to refer the 
matter to the Court of Justice again with a request for a preliminary ruling. 
The essential arguments of the parties in the main proceedings 
14 According to the applicant, ANRE’s refusal to liberalise the energy market 
significantly harms the interests of all market participants. Moreover, since 
OPCOM SA does not offer futures products or other derivative instruments 
specifically for energy markets, it deprives these operators of the possibility of 
using financial instruments specifically for the wholesale market. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
15 The referring court states that one of the pleas in law in the application is that, in 
the period between 21 September 2020 and 20 March 2022, the applicant’s rights 
and legitimate interests were infringed as a result of the respondent’s refusal to 
issue it with the requested licence. 
16 The latter also complained of the impairment of a legitimate public interest, 
claiming that, in the absence of effective competition on the market, product costs 
remain subject to an upper limit and are dictated by a single economic actor, a 
circumstance likely to make it more difficult for participants with limited 
resources to access the exchange and the products traded on it, which significantly 
harms the interests of all market participants. 
17 The Court of Appeal adds that, following the registration of the dispute, the 
intervener the European Federation of Energy Traders lodged a complaint against 
OPCOM with the European Commission on 3 November 2020, in which it alleged 
that electricity producers and traders are prevented from marketing customised 
wholesale products as well as flexibility services in Romania, due to the isolating 
effect of the Romanian market in relation to the regional market resulting from the 
obligation to trade through OPCOM. 
18 The same intervener also stated that all OPCOM’s current operations on the 
electricity market, with the exception of the day-ahead and intraday market, 
should be released from the mandatory trading regime and operators should be 
allowed to trade bilaterally off-exchange, so that they are free to choose the 
exchange, platform or service provider. 
19 Furthermore, the European Federation of Energy Traders added, on the one hand, 
that OPCOM is a public undertaking within the meaning of Article 106(1) TFEU, 
is the only undertaking authorised to operate an electricity brokerage platform in 
BURSA ROMÂNĂ DE MĂRFURI 
 
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Romania, and benefits from exclusive rights, and, on the other hand, that OPCOM 
engages in abusive market behaviour, and that the provisions of Article 102 TFEU 
are applicable to that entity. 
20 The effects of the infringement of Articles 102 and 106 TFEU on the Romanian 
energy market as a result of the application of the provisions of Article 10(2)(f) of 
Law No 123/2012 are as follows: (i) energy brokers and traders are prevented 
from providing independent brokerage services on the Romanian wholesale 
electricity market; (ii) electricity traders are deprived of the possibility of 
choosing the trading mode, exchange or platform; (iii) electricity market 
participants are deprived of the possibility of trading directly over the counter 
(OTC) at national level; (iv) electricity traders are deprived of the possibility of 
purchasing electricity directly from producers, which prevents any bilateral cross-
border trading of electricity; (v) customised wholesale products cannot be traded 
in Romania; and (vi) Romanian producers are required to sell all electricity 
generated through OPCOM, as electricity cannot be exported without first being 
traded through OPCOM, which constitutes a measure having an effect equivalent 
to a quantitative export restriction. 
21 Indeed, the obligation to trade via OPCOM makes the activities of traders 
established in other Member States less advantageous, restricting the freedom of 
brokers to supply and the freedom of market participants to acquire electricity 
trading services, in breach of Articles 56, 102 and 106 TFEU. 
22 For their part, the London Energy Brokers’ Association (LEBA) and the European 
Venues and Intermediaries Association (EVIA) lodged a complaint against 
OPCOM with the European Commission on 7 October 2020. They argued that 
OPCOM’s monopoly infringes the freedom to provide brokering services 
throughout the European Union and that wholesale brokering is a commercial 
activity that takes place for remuneration and can be considered a service within 
the meaning of Article 56 TFEU. 
23 Furthermore, the obligation to trade through OPCOM completely blocks any 
brokerage services in the energy sector, affecting the cross-border provision of 
brokerage services to market participants in the Romanian domestic energy 
markets due to the limitation of electricity supply options normally offered to 
participants in OTC markets elsewhere. 
24 Similarly, since domestic electricity producers are required to market all the 
electricity they produce directly and exclusively through OPCOM, they cannot 
enter into medium-term or long-term contracts to export the electricity they 
produce directly to other Member States or to access the centralised markets of 
other Member States. 
25 The intervener the London Energy Brokers’ Association also pointed out that 
mandatory and exclusive trading through OPCOM restricts the free movement of 
electricity throughout the European Union and is a measure having an effect 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-775/23 
 
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equivalent to a quantitative restriction on exports, within the meaning of 
Article 35 TFEU. 
26 In its view, the monopolistic designation of ‘market platform operators’, as 
OPCOM is, does not allow its members to provide REMIT and MiFID brokerage 
services on emerging wholesale markets. OPCOM’s current monopoly infringes 
the freedom to provide brokering services throughout the European Union and 
mainly affects electricity brokers, operators and producers. The Romanian 
legislation should therefore first be assessed in the light of Article 56 TFEU. 
27 Moreover, according to that intervener, the restriction imposed on Romanian 
energy producers, which cannot export electricity directly, for example, through a 
brokerage company, and their obligation to trade their electricity first through 
OPCOM, which is contrary to Article 35 TFEU, is not justified, as it is not 
possible to establish the existence of public policy objectives such as those 
relating to security of electricity supply, harmful business practices, ensuring 
market liquidity and ensuring the stability of the national energy sector.  
28 OPCOM’s monopoly generates systemic risks in the regional electricity market 
due to a total lack of hedging opportunities. As a result, Romania has become one 
of the riskiest markets in the European Union for participants in the physical 
energy market. 
29 The referring court points out that the dispute before it seeks to establish not only 
an infringement of the applicant’s private rights and interests, but also an 
infringement of the legitimate public interest, the fundamental components of 
which are the guarantee of the fundamental rights and freedoms of citizens, the 
fulfilment of Community requirements and the fulfilment of the tasks of the public 
authority. 
30 The way marketing and brokering services are provided on the electricity market 
in Romania can affect energy transaction prices, having a significant impact on 
investments in the energy system and the overall functioning of the electricity 
market in Romania. 
31 The applicant and the three interveners have claimed that there is a cross-border 
interest in this domestic dispute, in that Article 10(2)(f) of Law No 123/2012 
resulted, during the period from 21 September 2020 to 31 December 2021, in an 
infringement of the freedom of establishment and the freedom to provide services 
for brokerage firms, traders and other entities engaged in electricity trading in the 
other Member States of the Union. 
32 The Bucharest Court of Appeal considers that the premises developed by the 
Court of Justice in paragraphs 50 and 51 of its judgment of 15 November 2016 in 
Case C268/15, Ullens de Schooten, are satisfied in the present case, since it cannot 
be ruled out that the members of the intervener associations, which are nationals 
of other Member States, were interested in making use of those fundamental 
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freedoms in order to engage in electricity trading and brokering activities in 
Romania. 
33 Moreover, ANRE applied the national provisions in question indiscriminately to 
nationals and citizens of other Member States, and therefore these provisions can 
produce legal effects not limited to Romania alone. 
34 The cross-border interest of the dispute is, moreover, dictated both by the fact that 
the interveners in support of the applicant lodged a complaint with the European 
Commission in 2020, and by the fact that electricity may be traded across borders 
and that the marketing and brokering services on the energy market at issue in the 
main proceedings may be provided by participants established in other Member 
States, including members of the Federation and the intervener associations. 
35 The preliminary ruling to be given by the Court of Justice will also have an impact 
on a case pending before the Ninth Chamber of the Administrative Disputes 
Division of the Bucharest Court of Appeal, a case that has been suspended until 
the referring court has given its ruling in the present case in which Bursa Română 
de Mărfuri SA sought an order requiring ANRE to pay compensation as a result of 
the refusal to grant a licence for the organisation and operation of centralised 
electricity markets for the period from 21 September 2020 to 21 September 2021.