Opinion of the Advocate General — ECLI:EU:C:2021:300
Date: 2021-04-15
Language of the case: Spanish
Subject matter: Energy;Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-683/19 - 1 
Case C-683/19 
Summary of the request for a preliminary ruling under Article 98(1) of the 
Rules of Procedure of the Court of Justice 
Date lodged:  
16 September 2019 
Referring court:  
Tribunal Supremo (Supreme Court, Spain) 
Date of the decision to refer:  
9 July 2019 
Applicant:  
Viesgo Infraestructuras Energéticas, S.A. 
Defendants:  
Administración del Estado 
Iberdrola, S.A. 
Gas Natural SDG, S.A. 
CIDE, Asociación de Distribuidores de Energía Eléctrica 
Hidroeléctrica del Cantábrico, S.A. 
  
Subject matter of the main proceedings 
Administrative-law proceedings brought against Real Decreto 968/2014, de 21 de 
noviembre, por el que se desarrolla la metodología para la fijación de los 
porcentajes de reparto de las cantidades a financiar relativas al bono social (Royal 
Decree No 968 of 21 November 2014 laying down the methodology for setting 
the percentages for apportionment of the sums to be financed for the ‘bono social’ 
[regulated discount for electricity for certain vulnerable consumers, ‘the regulated 
discount’] (‘Royal Decree No 968/2014’).  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-683/19 
 
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Subject matter and legal basis of the request for a preliminary ruling 
This request for a preliminary ruling concerns the interpretation of Article 3(2) of 
Directive 2009/72/EC of the European Parliament and of the Council of 13 July 
2009 concerning common rules for the internal market in electricity and repealing 
Directive 2003/54/EC (‘Directive 2009/72’). It seeks to determine whether the 
national legislation governing the regulated discount is compatible with EU law as 
regards the public service obligations of electricity undertakings. 
Questions referred for a preliminary ruling 
(1) In accordance with the case-law established by the Court of Justice, in its 
judgments of 20 April 2010 (Case C-265/08, Federutility) and of 
7 September 2016 (Case C-121/15, ANODE) amongst others, is national 
legislation — such as that established in Article 45(4) of Ley 24/2013, de 26 
de diciembre (Law No 24 of 26 December 2013) and subsequently 
implemented by Articles 2 and 3 of Real Decreto 968/2014, de 21 de 
noviembre (Royal Decree No 968 of 21 November 2014) – under which the 
financing of the ‘bono social’ [regulated discount for electricity for certain 
vulnerable consumers; ‘the regulated discount’] falls on certain actors in the 
electricity system, namely the parent companies of company groups or, 
where applicable, companies that simultaneously carry on electricity 
production, distribution and retail activities, compatible with the 
requirements laid down in Article 3(2) of Directive 2009/72/EC, where 
some of those actors carry very little weight in the sector as a whole, and 
where, by contrast, other entities or company groups that may be in a better 
position to bear that cost, either due to their turnover, relative size in a 
business sector or because they carry on two of those activities 
simultaneously on an integrated basis, are exempted from that burden? 
(2) Is national legislation according to which the obligation to finance the 
regulated discount is not established on an exceptional basis or limited in 
time, but indefinitely and with no refund or compensatory measure 
whatsoever, compatible with the requirement of proportionality established 
in Article 3(2) of Directive 2009/72/EC? 
Provisions of EU law relied upon 
Article 3(2) of Directive 2009/72. 
Provisions of national law relied upon 
Article 45(4) of Ley 24/2013, de 26 de diciembre, del Sector Eléctrico (Law 
No 24 of 26 December 2013 on the Electricity Sector, ‘Law No 24/2013’). 
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Articles 2 and 3 of Royal Decree No 968/2014, which implement the 
arrangements for financing the regulated discount laid down by Law No 24/2013. 
Orden IET/350/2014, de 7 de marzo, por la que se fijan los porcentajes de reparto 
de las cantidades a financiar relativas al bono social correspondientes a 2014 
(Order No  IET/350 of 7 March 2014 setting the percentages for apportionment of 
the sums to be financed for the regulated discount for 2014). 
Orden IET/1451/2016, de 8 de septiembre, por la que se aprueban los porcentajes 
de reparto de las cantidades a financiar relativas al bono social correspondientes a 
2016 (Order No  IET/1451 of 8 September 2016 approving the percentages for 
apportionment of the sums to be financed for the regulated discount for 2016). 
Brief description of the facts and the main proceedings 
1 Viesgo Infraestructuras Energéticas, S.A. (formerly known as E.ON España, 
S.L.U.) brought administrative-law proceedings before the referring court against 
Royal Decree No 968/2014, understanding that the legal arrangements for 
financing the regulated discount are incompatible with Directive 2009/72. 
2 By judgment of 24 October 2016, the referring court upheld the action, declaring 
the arrangements for financing the regulated discount under Article 45(4) of Law 
No 24/2013 to be inapplicable and annulled Articles 2 and 3 of Royal Decree 
No 968/2014, on the ground that the national legislation in question is 
incompatible with Directive 2009/72. 
3 The Administración del Estado (Spanish Administration), as defendant, brought a 
recurso de amparo (appeal for the protection of fundamental rights) before the 
Tribunal Constitucional (Constitutional Court, Spain) against that judgment, 
understanding that, by declaring the national legislation to be inapplicable without 
referring a question to the Court of Justice of the European Union (‘the Court of 
Justice’) for a preliminary ruling, the referring court had infringed the 
fundamental right to a public trial with all the safeguards.  
4 By judgment of 26 March 2019, the Tribunal Constitucional (Constitutional 
Court) held that the right to a public trial with all the safeguards had been 
infringed and, accordingly, allowed the appeal for the protection of fundamental 
rights and set aside the judgment under appeal, ordering that the situation should 
revert to that existing prior to delivery of the judgment, and the referring court 
therefore gave the parties a new time limit in which to make submissions and 
made the present request for a preliminary ruling. 
Fundamental arguments of the parties in the main proceedings 
5 The applicant submits that the national legislation governing the financing of the 
regulated discount for vulnerable consumers is incompatible with Directive 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-683/19 
 
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2009/72 in so far as, in addition to exempting electricity transmission, it causes 
the cost of the regulated discount to fall entirely on entities or company groups 
that simultaneously carry on the other three activities in the electricity system – 
generation, distribution and retail – and that are vertically integrated groups, and, 
furthermore, that it infringes the principle of proportionality. In the applicant’s 
view, it is not necessary to refer a question for a preliminary ruling. 
6 In order to contest the action, the Spanish Administration contends that the reason 
why financing of the regulated discount has been made to fall on vertically 
integrated groups is not because of their greater economic capacity and solvency, 
but the vertical integration itself; this is because vertical integration enables the 
burden to be placed on those undertakings which, because they carry on retail 
activity, which is directly related to the subject matter of the measure, are on 
account of that vertical integration in a better position to neutralise and minimise 
its impact. A company group that carries on various activities simultaneously in 
the electricity sector has, amongst other matters, more in-depth insight into the 
sector, certain economies of scale and the opportunity for intragroup contracts that 
might mitigate the impact of price fluctuations. The Spanish Administration 
applies for a question to be referred for a preliminary ruling on whether 
Article 45(4) of Law No 24/2013 and its implementing regulations are compatible 
with Article 3(2) of Directive 2009/72. 
Brief description of the grounds for the request for a preliminary ruling 
7 Since its origins, the regulated discount has been conceived as a distinctly social 
benefit (a public service obligation) intended to protect certain electricity 
consumers who are on the tariff of last resort and have particular social, 
consumption and purchasing power characteristics, in relation to the cost of 
electricity for their habitual residence.  
8 It is governed by Law No 24/2013, Article 45 of which, entitled ‘Vulnerable 
consumers’, provides, in particular, that electricity consumers having the social, 
consumption and purchasing power characteristics laid down by regulation will be 
regarded as vulnerable consumers in relation to their habitual residence. The 
regulated discount will be applied to vulnerable consumers as so defined, who are 
in all cases natural persons, on the corresponding invoices. Article 45(4) reads as 
follows: 
‘The “regulated discount” will be treated as a public service obligation in 
accordance with [Directive 2009/72] and will be borne by the parent companies of 
company groups or, where applicable, companies that simultaneously carry on 
electricity production, distribution and retail activities. 
The apportionment percentage of the sums to be financed will be calculated, for 
each company group, as the relation between, on the one hand, the total of the 
annual average number of supplies connected to the distribution companies’ 
distribution networks and the number of customers of the retailers held by the 
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group, and, on the other, the total of all the average annual supply and customer 
values of all the company groups that are to be taken into account for the purposes 
of that apportionment. 
That apportionment percentage will be calculated annually in accordance with the 
procedure and conditions established by regulation. For that purpose, the 
information relating to the previous annual period for the annual averages of the 
number of supplies connected to the distribution companies’ distribution networks 
and of the number of the retailers’ customers, and a list of the company groups or, 
as applicable, companies, that satisfy the requirements laid down in the first 
subparagraph of this paragraph, will be published [online] in November each year. 
... before 1 December each year the proposed financing percentages to be set for 
each of the parent companies [will be sent], and the Ministry of Industry, Energy 
and Tourism will be responsible for approving those percentages by order to be 
published in the Boletín Oficial del Estado [Gazette]. 
…’. 
9 Law No 24/2013 contains no list of the undertakings or company groups that must 
bear the cost of financing the regulated discount. Those undertakings have been 
identified by successive ministerial orders (Order No IET/350 of 7 March 2014 
and Order No  IET/1451 of 8 September 2016), issued under the aforementioned 
Law and Royal Decree No 968/2014, which set the apportionment percentages in 
such a way that significant percentages were allocated only to four entities or 
company groups, which had to bear in total nearly 96.64 % of the cost, whilst the 
remaining 23 undertakings on the list were allocated a total of only around 
3.36 %. In order to justify choosing those arrangements for financing the regulated 
discount, that is to say, making the cost of the regulated discount fall on the parent 
companies of companies or company groups that carry on electricity production, 
distribution and retail activities and are vertically integrated groups, the legislature 
explained that imposing that obligation on those parent companies makes it 
possible, even if only indirectly, to share that burden among the main business 
activities involved in the electricity sector, and that exempting electricity 
transmission was justified because it is an activity carried on under statutory 
monopoly arrangements that prevent the carrier from recovering from the market 
any cost arising from the regulated discount. 
10 However, it is uncertain whether those provisions governing the financing of the 
regulated discount contained in Article 45(4) of Law No 24/2013 and 
implemented in Articles 2 and 3 of Royal Decree No 968/2014, comply with 
Article 3(2) of Directive 2009/72, according to which public service obligations, 
which include the regulated discount, ‘shall be clearly defined, transparent, non-
discriminatory, verifiable and shall guarantee equality of access for electricity 
undertakings of the Community to national consumers.’ The referring court is of 
the view that neither the national legislation under analysis nor the arguments 
advanced by the Spanish Administration have properly justified why the financing 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-683/19 
 
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of the regulated discount is made to fall on particular actors in the electricity 
system, some of which carry very little weight in the sector as a whole, whilst in 
contrast exempting from that burden other entities or company groups that may be 
in a better position to bear that cost, either due to their turnover or their relative 
size in any of the business sectors or because they simultaneously carry on two of 
those activities on an integrated basis. As regards the principle of proportionality, 
the referring court finds that the obligation in question to finance the regulated 
discount is established not on an exceptional basis or limited in time, but 
indefinitely and with no refund or compensatory measure whatsoever. 
11 Furthermore, even though the Spanish Administration itself concedes that 
integrating two of the activities in the electricity sector — retail and electricity 
generation — fosters synergies and economies of scale that benefit the 
undertakings in question, the arrangements established do not require entities or 
company groups to finance the regulated discount where they simultaneously 
carry on those two activities, but only where they also carry on distribution 
activity. 
12 For the reasons set out, the referring court found initially that the national 
legislation at issue is incompatible with Directive 2009/72 and that the national 
law should be disapplied, in view of the primacy of EU law. It held that it was not 
necessary to refer a question to the Court of Justice for a preliminary ruling, in 
accordance with that Court’s acte clair doctrine (see judgments of 27 March 1963, 
Da Costa and Others, 28/62 to 30/62, EU:C:1963:6; of 6 October 1982, Cilfit and 
Others, 283/81, EU:C:1982:335; of 19 November 1991, Francovich and Others, 
C-6 and C-9/90, EU:C:1991:428; and of 19 January 2010, Kücükdeveci, C-555/07, 
EU:C:2010:21) in the light of the judgments of 20 April 2010, Federutility, 
C-265/08, EU:C:2010:205, and, in particular, of 7 September 2016, ANODE, 
C-121/15, EU:C:2016:637. The case-law that the Court of Justice laid down in 
those judgments can indeed be fully transposed to the present case, bearing in 
mind that it concerns requirements to impose public service obligations in a 
regulated sector, rather than the substantive regulation of electricity or gas. It is, 
therefore, irrelevant that the directives at issue are different, in particular since on 
the point in question their wording is identical. 
13 The primacy of Community law encompasses not only the wording of the 
Community provision, but any interpretation of it by the Court of Justice, since 
that interpretation prevails over any other that may be given to the national 
provisions intended to implement a directive. 
14 The Tribunal Supremo finds that, as a supreme court, it is incumbent upon it to 
interpret at last instance both the national law on the electricity system and EU 
law in the same field, as an area of the ordinary law unrelated to the sphere of 
constitutional safeguards that is reserved to the Tribunal Constitucional 
(Constitutional Court), and that, therefore, it is for the Tribunal Supremo 
(Supreme Court) to determine whether the Spanish legislation is contrary to the 
aforementioned directive and whether under the case-law of the Court of Justice it 
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is relieved from the requirement to refer a question for a preliminary ruling in the 
case at issue. It therefore delivered a judgment upholding the action brought by 
Viesgo Infraestructuras Energéticas, S.A. and declaring the arrangements at issue 
for financing the regulated discount inapplicable.  
15 The Spanish Administration brought an appeal for the protection of fundamental 
rights before the Tribunal Constitucional (Constitutional Court), arguing that 
fundamental procedural rights had been infringed because the national provision 
had been disapplied without a question having been referred to the Court of 
Justice for a preliminary ruling. The Tribunal Constitucional (Constitutional 
Court) allowed the appeal, annulled the referring court’s judgment of 24 October 
2016 and ordered that the situation should revert to that existing prior to delivery 
of the judgment, so that the referring court could ‘make a new decision compliant 
with the fundamental right that had been infringed’.  
16 In its judgment, the Tribunal Constitucional (Constitutional Court) addresses 
whether or not the judgments put before it amounted to acte clair, thereby, in 
relation to the present case, allowing a reference for a preliminary ruling to be 
dispensed with. It asserts, accordingly, that the cases that the Court of Justice 
decided in Federutility and ANODE can be distinguished from the case examined 
in the judgment of the Tribunal Supremo (Supreme Court) since, first, the 
provisions of the European legislation taken into account are to be found in 
different directives: the judgment in Federutility interprets Directive 2003/55/EC 
of 26 June 2003 concerning common rules for the internal market in natural gas, 
and the judgment in ANODE interprets Directive 2009/73/EC of 13 July 2009 
concerning common rules for the internal market in natural gas.  
17 The Tribunal Constitucional (Constitutional Court) held that ‘even if the provision 
interpreted by the Court of Justice of the European Union had the same content 
both in the electricity sector directive and in the gas sector directive, the cases 
concerned neither the same directives nor the same sector, and nor were the issues 
addressed by the Federutility and ANODE judgments respectively and by the 
judgment under appeal exactly the same’. The Tribunal Constitucional 
(Constitutional Court) is therefore of the view that there is no identical question 
raised in a case similar to the present case, and that there is therefore no acte clair 
relieving the Tribunal Supremo (Supreme Court) of the requirement to refer the 
question for a preliminary ruling. It therefore finds that the right to a trial with all 
the safeguards has been infringed, since a national provision was disapplied 
because it was found to be incompatible with Directive 2009/72, without a 
preliminary ruling having previously been sought from the Court of Justice.  
18 Ultimately, having stated in its judgment that it was not for it to decide whether or 
not the [national] legislation that had been disapplied was at variance with the 
directive in question, the Tribunal Constitucional (Constitutional Court) 
considered the matter of whether or not there was acte clair and ruled on the 
meaning and rationale of the directives at issue in comparison with the national 
legislation that had been disapplied.  
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19 The Tribunal Constitucional (Constitutional Court) harbours a concern that by 
virtue of the principle of the primacy of EU law a system of decentralised review 
is being set up in which the courts can disapply a national law without going to the 
Tribunal Constitucional (Constitutional Court) or referring a question to the Court 
of Justice for a preliminary ruling, and it therefore elects to review the work of 
interpreting and applying EU law, which is the task of the national courts, 
differently and more intensely where the national court disapplies a national law 
on the ground that it is contrary to EU law, than in cases where the national 
provision is found to be in conformity with EU law.  
20 As can likewise be seen, in particular, from the Tribunal Constitucional’s 
judgments No 78 of 20 October 2010, No 232 of 5 November 2015 and No 37 of 
26 March 2019, where the Tribunal Supremo (Supreme Court) ha[d] reached the 
conclusion that the national provision should be disapplied under the principle of 
primacy and that no referral for a preliminary ruling was required, the Tribunal 
Constitucional (Constitutional Court) has accordingly revised the interpretation of 
Community provisions by the Tribunal Supremo (Supreme Court) and its 
assessment of whether the situations are similar in the national case and in the 
case resolved by the Court of Justice.  
21 In any event, by judgment of 7 February 2012, the referring court had already 
found the earlier legislation governing the same area to be inapplicable, because it 
was contrary to Community law, and the Tribunal Constitucional (Constitutional 
Court) ruled that the appeal for the protection of fundamental rights brought 
against that judgment was inadmissible. On that occasion, the referring court 
relied on the judgment in Federutility (C-265/08).  
22 For all the reasons set out above, the referring court — finding itself bound by the 
judgment of the Tribunal Constitucional (Constitutional Court) and in the light of 
the parties’ right to effective judicial protection and a procedure without undue 
delays — as the highest national court with jurisdiction over the substantive issue 
of whether or not there is acte clair in the regulated field of the electricity sector, 
now disregards its earlier view and decides to refer a question to the Court of 
Justice for a preliminary ruling. It is, therefore, necessary to enquire whether the 
arrangements for financing the regulated discount established in Law No 24/2013 
and subsequently implemented in Articles 2 and 3 of Royal Decree No 968/2014 
are compatible with the requirement laid down in Article 3(2) of Directive 
2009/72, according to which public service obligations must be clearly defined, 
transparent, non-discriminatory and verifiable and must guarantee equality of 
access for electricity undertakings of the Community to national consumers.