Opinion of the Advocate General — ECLI:EU:C:2025:967
Date: 2025-12-11
Language of the case: German

Summary C-468/24 – 1 
Case C-468/24 
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: 
3 July 2024 
Referring court: 
Landesgericht St. Pölten (Austria) 
Date of the decision to refer: 
19 June 2024 
Defendant at first instance and appellant: 
SR 
Applicant at first instance and respondent: 
Netz Niederösterreich GmbH 
  
Subject matter of the main proceedings 
The applicant at first instance, Netz Niederösterreich GmbH (‘the applicant’), is 
an electricity system operator. The defendant at first instance, SR (‘the 
defendant’), purchases electricity from a third company via the applicant’s grid 
under a grid use agreement with the applicant. In its action in the main 
proceedings before the Bezirksgericht Tulln (District Court, Tulln, Austria), the 
applicant sought an order requiring the defendant to accept the installation of a 
smart energy meter. The referring court, the Landesgericht St. Pölten (Regional 
Court, St. Pölten, Austria), is handling the case in the context of the appeal lodged 
by the defendant against the judgment in the main proceedings. 
Nature and subject matter of the request 
By the request for a preliminary ruling pursuant to Article 267 TFEU, the 
referring court asks the Court to interpret a number of provisions of EU law in the 
fields of energy, environment and consumers, consumer protection, protection of 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-648/24 
 
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personal data, regulation of digital services and information and communications 
technology. 
Questions referred for a preliminary ruling 
1. Must Article 22 of Directive (EU) 2019/944 of the European Parliament and 
of the Council of 5 June 2019 on common rules for the internal market for 
electricity and amending Directive 2012/27/EU (‘the Electricity Directive 
2019/944’), read in conjunction with Annex II of that directive, be interpreted as 
meaning that a system operator is required to [take into consideration] a final 
customer’s wish not to receive a smart meter, and has an obligation in such a case 
to provide the final customer with a conventional meter instead of a smart meter? 
2. Must Article 2(1) of Directive 2014/32/EU of the European Parliament and 
of the Council of 26 February 2014 on the harmonisation of the laws of the 
Member States relating to the making available on the market of measuring 
instruments, which defines in more detail a ‘measuring instrument’ within the 
meaning of the instrument-specific Annexes III to XII (active electrical energy 
meters [MI-003]), read in conjunction with Article 20(b) and (c) and Article 23(3) 
of the Electricity Directive 2019/44, be interpreted in such a way that it runs 
counter to a provision of national law (point 31 of Paragraph 7(1) of the 
Elektrizitätswirtschafts- und organisationsgesetz 2010 (Law on the organisation of 
the electricity sector2010) in the version in BGBl I No. 17/2021, ‘the ElWOG’), 
which does not lay down any specific data protection requirements in relation to 
meters? 
3. Must Article 20(b) and (c), Article 21(1)(a) and Article 23(3) of the 
Electricity Directive 2019/44 also take into consideration Article 6(1) of Directive 
1999/34/EC of the European Parliament and of the Council of 10 May 1999 
amending Council Directive 85/37/EEC on the approximation of the laws, 
resolutions and administrative provisions of the Member States concerning 
liability for defective products? 
4. Must Article 5(3) of Directive 2002/58/EC of the European Parliament and 
of the Council of 12 July 2002 concerning the processing of personal data and the 
protection of privacy in the electronic communications sector (‘Directive on 
privacy and electronic communication’), be interpreted as meaning that the term 
‘electronic communications network’ is also applicable to an electricity system via 
which data (consumption data, metadata, personal identity) are transmitted for the 
purposes of Article 20(b) and (c), Article 21(1)(a) and Article 23(3) of the 
Electricity Directive 2019/944? 
5. Must Articles 5(1)(f), Article 13 and Article 32(2) of Regulation (EU) 
2016/679 of the European Parliament and of the Council of 27 April 2016 on the 
protection of natural persons with regard to the processing of personal data and on 
the free movement of such data, and repealing Directive 95/46/EC (General Data 
Protection Regulation, ‘the GDPR’) and Article 7, Article 8(1) and (2) of the 
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Charter of Fundamental Rights of the European Union (‘the Charter’) be 
interpreted as contradicting a national provision (Paragraph 1(6) of the Intelligente 
Messgeräte-Einführungsverordnung (Ordinance on the introduction of smart 
meters), BGBl II No. 138/2012 in the version in BGBl II No. 9/2022 of 
13 January 2022, ‘the IME-VO’), according to which only the respective 
configuration of the reading interval must be visible for the final customer, but not 
whether the system operator recognised a ‘justified individual case’ 
(Paragraph 84a(1) of the ElWOG) and has retrieved data of the final customer 
before the set interval? 
6. Having regard to Article 52(3) of the Charter, the fifth recital thereof and the 
explanations relating to Article 7 of the Charter, must the case-law of the 
European Court of Human Rights on Article 8 of the European Convention on 
Human Rights taken into account for the purpose of interpreting Article 20(b) and 
(c), Article 21(1)(a) and Article 23(3) of the Electricity Directive? 
Provisions of national law relied on 
Paragraph 2 of the ElWOG (list of EU legislation transposed or implemented by 
the ElWOG – of relevance here: Directive 2009/72) 
Point 31 of Paragraph 7(1) of the ElWOG reads as follows: 
‘(1) For the purposes of this Federal Law, the term: … 
31. “smart meter” means technical equipment that records actual energy 
consumption and period of use without delay and allows for bidirectional data 
transmission and remote meter reading;’. 
Paragraph 83 of the ElWOG reads as follows: 
‘Smart meters 
(1) After carrying out a cost-benefit analysis, the Federal Minister for Climate 
Action, Environment, Energy, Mobility, Innovation and Technology may order the 
introduction of smart meters. … If such an ordinance is issued, system operators 
shall be obliged to equip final customers whose consumption is not measured by a 
load profile meter with smart meters, to report on the introduction, in particular 
with regard to the cost situation, the grid situation, data protection and data 
security, and final ’customers’ consumption trends and to inform final customers 
without delay of the installation of a smart meter and the associated framework 
conditions. Within the framework of the provisions laid down in the ordinance for 
the installation of smart meters, system operators shall take into consideration a 
final ’customer’s wish not to have a smart meter. …’ 
(2) The regulatory authority shall determine the requirements to be met by such 
smart meters by ordinance … The ordinance shall prescribe at least the minimum 
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features which smart meters must have to fulfil the tasks specified in subsections 3 
to 5 and in Paragraphs 84 and 84a. Smart meters must at least be able to measure 
and record quarter-hourly meter readings, save data for 60 calendar days inside 
the device, enable remote retrieval of the data stored in the device through a 
bidirectional communications interface, allow for remote disabling and enabling 
of the metering point, and enable the final customer to retrieve the data through a 
unidirectional communications interface. … The operation of smart meters and 
their communication, including with external devices, shall be secured in 
accordance with generally recognised technological standards to ensure that 
unauthorised parties do not gain access to data beyond the current meter reading. 
The operation of smart meters shall comply with the provisions of metrology and 
calibration law and data protection law as well as generally recognised 
technological standards. 
(3) The default setting for the smart meter display shall only show the current 
meter reading. If a consumer wishes to verify additional data that are stored in 
the device and relevant for billing, such consumer’s smart meter shall be 
configured so as to enable verification of such data at the smart meter display. 
Such configuration operation shall be free of charge and shall not cause 
disproportionate efforts for the consumer. … 
… 
(5) The system operator’s obligation to protect the meter readings saved in 
smart meters from unauthorised access as described in subsection 2 shall apply 
mutatis mutandis for all other interfaces of the device. 
…’ 
Paragraph 84a(1) of the ElWOG reads as follows: 
‘(1) System operators shall only retrieve and use quarter-hourly consumption data 
if the final customer explicitly agrees or if the data are necessary to fulfil duties 
that arise from the customer’s having chosen a supply contract based on quarter-
hourly readings. In addition, system operators may retrieve such data from smart 
meters without consumer agreement in justified individual local cases where this 
is necessary to maintain secure and efficient grid operation. The relating data 
shall be deleted immediately once they are no longer needed to fulfil this task. … 
Where consumers have not consented to quarter-hourly values being retrieved, 
they shall be informed of such retrieval without delay.’ 
Intelligente Messgeräte-Anforderungs-Verordnung (Ordinance on the 
requirements of smart meters, the ‘IMA-VO’) 
Intelligente Messgeräte-Einführungsverordnung (Ordinance on the introduction of 
smart meters, ‘the IME-VO’)  
Paragraph 1 of the IME-VO reads as follows: 
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‘(1) Every system operator … shall … 2. within the limits of technical feasibility, 
equip at least 95 percent of the metering points connected to its grid with smart 
meters by the end of 2024 (point 31 of Paragraph 7(1) of the ElWOG 2010) in 
accordance with the provisions of the … [IMA-VO], whereby grid-bound 
transmission is to be considered. 
… 
(4) System operators shall inform final customers without delay of the 
installation of a smart meter and the concomitant framework conditions. … 
… 
(6) If a final customer refuses measurements using a smart meter, the system 
operator shall fulfil that wish. In such a case, the system operator shall configure 
smart meters to be installed or already installed in such a way that no monthly, 
daily or quarter-hourly values are stored and transmitted and the shutdown 
function and the power limit function are deactivated, whereby the respective 
configuration of the functions must be visible for final customers on the meter. A 
reading and transmission of the meter readings required for invoicing purposes or 
for consumer limits and, to the extent that the meter is technically in a position to 
do so, of the highest quarter-hourly average load (performance) within a calendar 
year must be possible. Smart meters thus configured are counted against the 
target obligations laid down in subsection 1, to the extent that they fulfil the 
requirements of the [IMA-VO] when activated or programmed to that effect; this 
is to be done without delay at the request of the final customer. 
…‘ 
Paragraph 4(1) of the Datenschutzgesetz (Law on data protection) 
Provisions of European Union law relied on 
Article 19(2), Article 20(b) and (c), Article 21(1)(a), Article 22, Article 23(3) of 
Directive (EU) 2019/944 and Annex II thereto 
Article 2(1) of Directive 2014/32/EU and Annexes III to XII thereto 
Article 6(1) of Directive 1999/34/EC 
Article 5(3) of Directive 2002/58/EC 
Directive 95/46/EC 
Article 4, Article 5(1)(f), Article 13, Article 32(2) of the GDPR 
Recital 5, Article 6, Article 7, Article 8(1) and (2), Article 21, Article 47, and 
Article 52(3) of the Charter and the explanations relating to Article 7 thereof 
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Article 3(11) and Annex 1(2) of Directive 2009/72/EC 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is a system operator in Lower Austria. The defendant purchases 
electricity at her home from a third company via the applicant’s grid under a grid 
use agreement with the applicant. To date, the defendant has used a mechanical 
electricity meter supplied by the applicant, but its calibration has expired and it is 
now to be replaced by a digital smart meter in accordance with the statutory 
requirements.  
2 Smart meters are instruments that either display the standard configuration or the 
opt-in configuration, which, transmits quarter-hourly values as well as daily 
consumption values. The term digital or electronic meter covers meters with an 
opt-out configuration. According to the system operator, the opt-out variant does 
not record data continuously. The only ostensible difference between a smart 
meter with the opt-out configuration and the analogue meters previously in use is 
that in the case of the former, the data are read externally once a year, with the 
result that it is no longer necessary, as in the case of an analogue meter, to make 
an on-site data reading. Activation of the opt-out variant should be visible on the 
meter display to enable verification and constant visibility by grid users. The 
meter allegedly cannot be changed from the opt-out variant to the opt-in variant 
without explicit revocation of the opt-out variant. 
3 The defendant refuses to have the new equipment installed. Consequently, the 
applicant filed an action against the defendant at the Bezirksgericht Tulln (District 
Court, Tulln) seeking an order to accept the exchange. The defendant filed an 
appeal with the Landgericht St. Pölten (Regional Court, St. Pölten), the referring 
court, against the judgment in the main proceedings which upheld the action. 
Principal arguments of the parties in the main proceedings 
4 The applicant substantiates the planned exchange by reference to Paragraphs 7, 
83(1) of the ElWOG, read in conjunction with Paragraph 1(6) of the IME-VO. 
5 As a system operator, the applicant is required to consider its customers’ wish not 
to receive a smart meter. In the case of the opt-out variant, the smart meter’s 
storage function is therefore deactivated so that it functions exclusively as a digital 
electricity meter. This is indicated to customers on the smart meter display. 
6 The actual radiation exposure from the use of Power Line Communication (PLC) 
for smart meters is a small fraction of the recommended thresholds. In some cases, 
much higher exposures occur in the vicinity of certain household appliances. 
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7 The defendant complains that she was not informed by the applicant which 
instrument was to be installed, so she was unable to check whether the instrument 
fulfilled the statutory requirements. 
8 Under Paragraph 83(1) of the ElWOG, final customers have the right to refuse 
smart meters. A smart meter in the opt-out configuration is still to be regarded as a 
smart meter; in addition, the meters have no default opt-out variant, which must 
be actively requested by the customer. 
9 Under the national provisions of the Austrian Regulierungskommission 
(Regulation Commission), the system operator, in the case of opt-out, has the 
choice of either installing a mechanical meter or an electronic meter that meets the 
requirements of Paragraph 1(6) of the IME-VO. Nonetheless, the system operator 
is seeking to compel the final customer to install a smart meter. 
10 The form of data transmission does not fulfil the requirements of the GDPR 
because no secure data transmission is guaranteed and data clearly attributable to a 
person are, in part, transmitted unencrypted (for example MAC, source and target 
address). With a suitable device (PLC Sniffer), one can read and record the smart 
meter data of neighbouring smart meters in every building or of all smart meters 
in the same grid (depending on one’s position in the grid topology). 
11 Under the ElWOG, the system operator has the right to access data from the smart 
meters before the agreed reading period, which may be daily, if there is a technical 
need to do so (Paragraph 84a(1) of the ElWOG), whereby the customer is not 
informed in each case and also cannot undertake verification. 
12 As well as data protection objections, personality rights are also breached by the 
installation of a smart meter. Health aspects are also arguments against the 
installation of a smart meter on account of the electrosmog occurring more 
frequently with smart meters, caused by PLC and wireless transmission and not 
removed by an opt-out. 
13 Furthermore, the defendant states that it must be examined whether the Austrian 
legislator and regulator breached Directives 2009/72, 2019/944, 2002/58 and 
1999/34, the GDPR and the Charter by its interpretation of Directives 2009/72, 
2019/944 and 2014/32 in its national transposition through the ElWOG, the IME-
VO and the IMA-VO. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
14 First, reference is made to the obligation to interpret national law in conformity 
with the directives. 
15 From the European legislation cited above, in particular Article 20 of Directive 
2019/944, arises firstly the importance of the security of smart metering systems 
and data communication, whereby technical possibilities, costs and the principle 
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of proportionality are to be given particular consideration, and secondly the 
significance of protecting the privacy and data of final customers. Under EU law, 
final customers must be comprehensively advised and informed in connection 
with the installation of smart metering systems, in particular also concerning the 
collection and processing of personal data (on this subject, see also Article 5(3) of 
Directive 2002/58). 
16 Article 23 of Directive 2019/944 addresses data processing and administration and 
refers in its subsection 3 in particular to the GDPR, which in turn, in its 
Article 5(1)(f) again calls for data processing to be appropriately secure. 
Article 13 of the GDPR sets out the information to be provided where personal 
data are collected from the data subject. 
17 In Austria, Directive 2019/944 has been transposed into national law by the 
ElWOG, in particular its Paragraphs 2 and 83, and by the IME-VO. 
18 Data protection aspects are also laid down in national legislation (see, for 
example, Paragraph 83 (2) to (6) of the ElWOG). Both under Paragraph 83(1) of 
the ElWOG and under Paragraph 1(6) of the IME-VO, the system operator shall 
take account of a final ’customer’s wish not to have a smart meter. Under 
Paragraph 1(6) of the IME-VO, the system operator shall, in case of refusal of a 
smart meter, configure the instrument in such a way that no monthly, daily or 
quarter-hourly values are stored and transmitted and the shutdown function and 
the power limit function are deactivated. 
19 In the present case, which has not yet been decided before the national courts, the 
question arises in particular from a legal point of view as to whether the national 
transposition standards presented above are admissible and how they are to be 
interpreted in accordance with the directives. 
20 It is open to question whether the applicant’s reference to the option of a possible 
opt-out from the smart meter, by way of reference to the case-law of the Court of 
Justice of the European Union, constitutes a breach of the GDPR when consent to 
data processing is the instrument’s default setting and must first be withdrawn by 
the customer, who can thus only influence the processing of his or her data 
retroactively by taking affirmative action. For example, in case C-673/17, the 
Court ruled that consent is not validly constituted if, in the form of cookies, the 
storage of information or access to information already stored in a website user’s 
terminal equipment is permitted by way of a pre-checked checkbox which the user 
must deselect to refuse his or her consent. 
21 Information on energy consumption in a given household is likely to be 
considered personal data under Paragraph 4(1) of the Law on Data Protection and 
Article 4 of the GDPR since the metering point identifier allows the customer’s 
identity to be unmistakably assigned and makes the customer unmistakable. The 
information generated by the meter (including opt-out meters) is subject to 
Article 4 of the GDPR. An installed opt-out meter also belongs to the system 
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operator and is monitored by it; in addition, the system operator collects data 
regularly and passes on these datasets (for example to electricity suppliers). This 
enables evaluation by means of data tracking, which, by installing a (smart) meter, 
regardless of its configuration, already allows in-depth insight into the privacy of 
every final customer. The bidirectional communications interface, and with it 
remote access, allow the software to be modified at any time and up-to-date 
readings can be made at any time without any possibility for verification. 
Switching off functions by intervening in the software does not change anything 
with regard to its legal classification, particularly since that intervention can be 
reversed by remote connection at any time and thus the data protection problems 
remain. 
22 In the judgment in Case C-673/17, the Court confirms that even the mere 
processing of technical identification features (IDs, online identifiers) is subject to 
the GDPR and that the required consent of users can only be given through 
informed consent, whereby the requirement for consent cited applies regardless of 
whether or not the information stored on the user’s terminal equipment constitutes 
personal data. 
23 Paragraph 84a (1) ElWOG allows the system operator remote access in individual 
local cases without adequately specifying in terms of time and in practical terms 
the obligation to inform final customers (‘informed without delay’). 
24 Concerning the declaration of conformity of meters: Article 20(b) of Directive 
2019/944 calls for the use of the highest level of cybersecurity protection while 
bearing in mind the principle of proportionality. Specific thresholds or health 
aspects are not provided. 
25 Although the system operator refers to an existing declaration of conformity for 
the instrument (Directive 2014/32), that declaration cannot be reviewed in 
advance in individual cases due to the absence of detailed information as to the 
type of instrument to be installed. 
26 Under Article 2(1) of Directive 2014/32/EU, that directive applies in particular to 
‘active electrical energy meters (MI-003)’, whereby no data protection 
requirements for the meters arise either from Annex I or Annex V and also no 
requirements are laid down concerning cybersecurity (data protection) or health 
protection (avoiding emissions). 
27 Article 5(3) of Directive 2002/58 makes no distinction between personal and non-
personal data, but requires consent, specified in detail, to store information or to 
gain access to information stored in the terminal equipment of a subscriber unless 
this is for the sole purpose of carrying out the transmission of a communication 
over an electronic communications network, or as strictly necessary in order to 
provide an information society service explicitly requested by the subscriber or 
user. 
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28 Thus, the question arises as to whether an electricity system via which data 
(consumer data, metadata, personal identity) are transmitted for the purposes of 
Article 20(b) and (c), Article 21(1) (a), Article 23(3) of Directive 2019/944, is an 
‘electronic communications network’ within the meaning of Article 5(3) of 
Directive 2002/58. 
29 In the event that the answer to the first question referred for a preliminary ruling is 
in the affirmative, it would be necessary to clarify in the main proceedings from a 
technical point of view whether, with regard to health and data protection aspects, 
a smart meter in the opt-out variant, which can only be selected by the final 
customer retroactively, is in fact to be deemed equivalent to a conventional 
mechanical meter, as claimed by the applicant. Even in the event that the first 
question referred for a preliminary ruling is answered in the negative, the main 
proceedings must be examined to ascertain whether the envisaged smart meters 
meet the requirements of the directives cited in the third and sixth questions 
referred and of the Charter in relation to health and data protection aspects. 
30 It is open to question whether these directives and the Charter are to be taken into 
account for the application of national statutory provisions in connection with 
Directive 2019/944 because these do not make any specific provisions for 
guaranteeing data security. 
31 It appears problematic that the consumer does not receive any information about 
the smart meter to be installed on his or her premises, but that he or she would 
nevertheless have to act in advance in order to be able to receive an opt-out 
variant, and yet he or she could subsequently not verify whether that opt-out 
variant had always been complied with, since remote access must technically be 
possible, ostensibly for specific reasons (see Paragraph 84a (1) of the ElWOG). 
The mere reading shown on the display, controlled by the applicant, does not 
appear to the chamber handling the case to provide sufficient security to 
customers within the meaning of the GDPR. It must therefore be clarified whether 
Directive 2019/944 is to be interpreted in the context of the other regulations and 
provisions of the Charter citied in the third and sixth questions referred for a 
preliminary ruling and whether a correspondingly limiting interpretation of the 
national transposition standards is to be made. 
32 The questions referred become even more relevant when taken into account that 
one of the main objectives of Directive 2009/72, according to its Annex I, 
Measures on Consumer Protection, Paragraph 2, and according to Article 19(2) 
and Article 20(c), (d) and (e) of Directive 2019/944, is the active participation of 
customers in the electricity market, that is to say, the possibility of actively 
supplying energy into the grid. The problems presented now concern all final 
customers, however, including consumers who do not actively supply energy.