Opinion of the Advocate General — ECLI:EU:C:2019:899
Date: 2019-10-24
Language of the case: Finnish
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Finland

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:  
14 September 2018 
Referring court:  
Korkein hallinto-oikeus (Finland) 
Date of the decision to refer:  
7 September 2018 
Appellant:  
Energiavirasto 
  
Subject of the main proceedings 
Authority of a consumer customer to appeal — Position as involved party — 
Concept of affected party — Directive 2009/72/EC 
Subject and legal basis of the reference 
In the case pending before the Korkein hallinto-oikeus (Supreme Administrative 
Court), a question was raised regarding the interpretation of Article 37 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 (‘Electricity Market Directive’). 
The case involves the position of a person who is a household customer of a 
network company operating in the field of electricity transmission in a supervisory 
procedure instituted by the regulatory authority as a result of the authority being 
contacted by that person in their capacity as a consumer customer. More precisely, 
the case firstly involves the authority of that consumer customer to file an appeal 
before the competent court against a decision by the regulatory authority and 
secondly involves the possibility, on the basis of the Electricity Market Directive, 
EN 
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of that consumer customer having the position of an involved party in the 
administrative procedure of the regulatory authority. 
However, a terminological specification must firstly be made. In respect of the 
filing of an appeal at a court against the ruling of an authority, the term ‘valitus’ 
(‘complaint’) is used at national level in Finland. However, in Article 37 of the 
Electricity Market Directive, ‘valitus’ (‘complaint’) refers to bringing a case 
before a regulatory authority. For this reason, the term ‘filing an appeal at the 
court’ is used in the present request for a preliminary ruling for the complaint filed 
at court. 
Questions referred 
1. Is Article 37 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 to be interpreted as meaning that a 
person who is a consumer customer of a network company and who has brought a 
case concerning the network company before the national regulatory authority is 
to be regarded as an ‘affected party’ within the meaning of paragraph 17 of the 
article mentioned, which is affected by the decision of the regulatory authority and 
is therefore authorised to file an appeal at a national court against a decision 
affecting the network company made by the national regulatory authority? 
2. If the person designated in the first question is not to be regarded as an 
‘affected party’ within the meaning of Article 37 of Electricity Market Directive 
2009/72/EC, does a consumer customer in a position like that of the appellant in 
the main proceedings have a right on any other legal basis under EU law to be 
involved before the regulatory authority in the treatment of a request made thereby 
for the introduction of a measure or to have the case reviewed by a national court, 
or is this question governed by national law? 
Provisions of EU law cited  
Recitals 42, 51, 54 and 68 and Articles 1 to 3 and 37 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. 
Case-law of the Court of Justice cited 
Judgment of 21 February 2008, Tele2 Telecommunication, C-426/05, 
EU:C:2008:103, paragraphs 32 and 48. 
Judgment of 22 January 2015, T-Mobile Austria, C-282/13, EU:C:2015:24, 
paragraph 48. 
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Judgment of 19 March 2015, E.ON Földgáz Trade, C-510/13, EU:C:2015:189, 
paragraph 50. 
Provisions of national legislation cited 
Perustuslaki (731/1999) [‘Constitution’] 
Pursuant to Paragraph 21(1) of the Finnish Constitution, everyone has a right to 
have his affairs handled properly and without unjustified delay before the legally 
competent courts or other authorities, as well as a right to a decision concerning 
his rights and obligations, handled by a court or another independent organ of the 
administration of justice. 
Laki 590/2013 (valvontalaki) 
Pursuant to Paragraph 2 of the Sähkö- ja maakaasumarkkinoiden valvonnasta 
annettu laki (590/2013, valvontalaki) [Law No 590/2013 on the supervision of the 
electricity and gas market, ‘Supervision Law’], the Supervision Law applies inter 
alia to the performance of the supervision and inspection tasks which, as tasks of 
the Energiavirasto [energy authority], are regulated in the Sähkömarkkinalaki 
(588/2013) [‘Electricity Market Law’] and in the provisions and administrative 
orders issued on the basis thereof as well as in the regulations and decisions of the 
Commission concerning the guidelines and issued on the basis of the Electricity 
Market Directive. 
Pursuant to Paragraph 5 of the Supervision Law, the Energiavirasto has the task of 
monitoring compliance with the provisions under national and EU law and the 
administrative orders mentioned in Paragraph 2 of the law and of performing the 
other tasks mentioned in Paragraph 2 that are assigned thereto by law. 
Pursuant to Paragraph 6(1)(13) of the Supervision Law, the Energiavirasto has the 
task of contributing, in its activity as national regulatory authority within the 
meaning of the legal provisions of the EU concerning the electricity and gas 
sector, to ensuring efficiency and enforcement of consumer protection measures 
concerning the electricity and gas market. 
If anyone breaches or neglects his obligations regulated in the provisions under 
national or EU law within the meaning of Paragraph 2 of the Supervision Law, the 
Energiavirasto has to oblige him pursuant to Paragraph 9 of the law mentioned to 
remedy the breach or omission. The decision may specify how the breach or 
omission should be remedied. 
Electricity Market Law 
Pursuant to Paragraph 57(2) of the Electricity Market Law, a distribution system 
operator must offer the consumers different payment methods for paying the 
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invoices for the distribution of electricity. The alternatives offered may not 
include unjustified conditions or conditions discriminating between different 
customer groups. The conditions of the payment methods may take account of the 
commensurate differences in costs incurred by the distribution system operator as 
a result of offering different payment methods. If the distribution system operator 
offers the customer a prepayment system, the consumer’s estimated annual 
electricity consumption to be expected must be sufficiently reflected in the 
system. 
Pursuant to Paragraph 106(2) of the Electricity Market Law, it is incumbent on the 
Energiavirasto to monitor compliance with this law and the provisions and 
administrative orders issued on the basis thereof as well as compliance with the 
approval decisions issued on the basis of this law. Pursuant to that provision, 
supervision is regulated separately in the Supervision Law. Pursuant to section 4 
of the same paragraph, the consumer ombudsman monitors the legality of the 
clauses of the contracts mentioned in Chapter 13 of the law (electricity contracts) 
from the perspective of consumer protection. 
Pursuant to Paragraph 114 of the Electricity Market Law, an appeal according to 
the Hallintolainkäyttölaki (586/1996) [‘Administrative Court Procedures Code’] 
may be filed against a decision issued by the Energiavirasto on the basis of the 
Electricity Market Law. 
Administrative Court Procedures Code 
Pursuant to Paragraph 5(1) of the Administrative Court Procedures Code, a 
decision against which a complaint may be filed means a measure by which a case 
has been ruled on or dismissed as inadmissible. 
Pursuant to Paragraph 6(1) of the Administrative Court Procedures Code, a 
complaint against a decision may be filed by the party at which the decision is 
directed or whose rights, obligations or interests are directly affected thereby. 
Pursuant to the detailed reasoning regarding Paragraph 6 of the government bill 
which led to the issuing of the Administrative Court Procedures Code, in addition 
to the party at which the decision is directed, the party whose rights, obligations or 
interests are directly affected by the decision, even though it is not formally 
directed thereat, also has a right of complaint. According to the legislative 
documents relating to this paragraph, a right of complaint may not be derived 
from exclusively indirect effects of the decision. When assessing whether the 
criterion of directness is met, account is to be taken in each case of the nature of 
the matter concerned and the legitimate interest in bringing proceedings resulting 
from the case. There is a right of complaint according to this provision if there are 
no more specific separate provisions for a subjective right of complaint. 
According to the legislative documents, the provision is worded in the form of a 
broad general clause in order to allow a development of the case-law. 
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Laki 661/2012 (laki Kilpailu- ja kuluttajavirastosta) [‘Law regarding the 
Competition and Consumer Authority’] 
The second chapter of the Law regarding the Competition and Consumer 
Authority contains particular provisions concerning the consumer ombudsman. 
Laki 8/2007 (laki kuluttajariitalautakunnasta) [‘Law regarding the Committee for 
Consumer Disputes’] 
The Law regarding the Committee for Consumer Disputes contains inter alia 
provisions regarding the competence and tasks of the committee and regarding the 
treatment and settlement of consumer disputes. 
National case-law cited 
On 22 September 2000 in Case KHO 2000:54, the Korkein hallinto-oikeus issued 
a ruling, included in the official compendium, in which the Central Office for the 
Electricity Market (the current Energiavirasto) had issued a decision, on the basis 
of its supervisory powers, regarding the fairness of the pricing of online services 
of a network operator and found that this pricing was contrary to the Electricity 
Market Law. In its ruling, the Korkein hallinto-oikeus had taken the view that the 
decision issued by the Central Office for the Electricity Market on the basis of its 
supervisory competence did not contain any ruling within the meaning of 
Paragraph 5 of the Administrative Court Procedures Code which would have had 
an effect on rights, obligations or other interests of the customer company that 
complained to the Central Office in such a way that the appeal filed by the 
company mentioned against the decision would have had to be admitted before the 
Korkein hallinto-oikeus for substantive examination. 
The national case-law has not since changed with regard to the matter in question 
here. For example, on 9 November 2005 in an unpublished decision under register 
number 2909, the Korkein hallinto-oikeus, with the same reasoning in connection 
with the filing of an extraordinary appeal, rejected as inadmissible the applications 
made by a private person regarding a decision issued by the Energy Market 
Authority (the current Energiavirasto) in response to an investigation request by 
the person in question, with which the latter had sought for the authority to make 
use of the supervisory competence given thereto on the basis of the Electricity 
Market Law. 
Furthermore, in its rulings KHO 2012:33 and KHO 2012:34, included in the 
official compendium and concerning a concession within the meaning of the 
Viestintämarkkinalaki [Communications Market Law], the Korkein hallinto-
oikeus dismissed as inadmissible the complaints made by competitors of a 
company which had been the recipient of a concession decision by the 
government and stated as reasoning that, in consideration of Paragraph 6(1) of the 
Administrative Court Procedures Code, the competing companies would not have 
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the right to file a complaint against the government’s decision. In contrast, in its 
ruling KHO 2018:96 (ECLI:FI:KHO:2018:96), included in the official 
compendium and relating to the communications markets, the Korkein hallinto-
oikeus took the view that, according to the case-law of the Court of Justice, it 
could be assumed that a decision by the Regulatory Authority for 
Telecommunications regarding significant market power on the wholesale markets 
for television and radio pursuant to Paragraph 6(1) of the Administrative Court 
Procedures Code had effects on rights and interests of certain competing 
companies and large customer companies, which meant that the companies had 
been authorised to file an appeal in court. 
Brief summary of the facts and procedure 
1 A, having the position of a consumer customer, had concluded a contract for 
electricity transmission with the electricity distribution system operator Fortum 
Sähkösiirto Oy (the present Caruna Oy). On 5 September 2013, A sent a request 
by email to the energy market authority acting as regulatory authority within the 
meaning of the Electricity Market Directive (since 1 January 2014: 
Energiavirasto), which related to whether the procedure followed by the company 
with its invoicing was in line with the Electricity Market Law. Pursuant to 
Paragraph 57(2) of the Electricity Market Law, a distribution system operator 
must offer the customer different payment methods for paying the invoices for the 
distribution of electricity. It therefore involved a consumer customer’s right 
pursuant to Annex I No 1 letter d of the Electricity Market Directive to be able to 
choose between several different payment methods. 
Decision of the Energiavirasto of 31 March 2014 
2 In response to A’s request, the Energiavirasto examined the legality of the 
invoicing by Caruna Oy. The Energiavirasto issued a decision in the case on 
31 March 2014, according to which Caruna Oy had not breached Paragraph 57(2) 
of the Electricity Market Law and no further measures on the part of the 
Energiavirasto were required in the matter. In the decision, Caruna Oy was 
designated as involved party and A was designated as investigation applicant. 
Decision of the Energiavirasto of 28 April 2014 
3 A filed an application for correction with the Energiavirasto with regard to the 
aforementioned decision. 
4 By decision of 28 April 2014, the Energiavirasto rejected A’s correction 
application as inadmissible and turned down his application to be granted a 
position as involved party and for correction of a substantive error. According to 
the decision of the Energiavirasto, A did not have a position as involved party in 
the case.  
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Decision of the Helsingin hallinto-oikeus (Helsinki Administrative Court) of 
23 May 2016 
5 A filed an appeal at the Helsingin hallinto-oikeus against the Energiavirasto’s 
decision. A requested that he be granted the position of an involved party in the 
case heard by the Energiavirasto. A also requested that the decisions issued by the 
Energiavirasto on 31 March 2014 and 28 April 2014 be annulled and the case be 
remitted for a new hearing by the Energiavirasto. 
6 By decision of 23 May 2016 in light of the appeal filed by A, the Helsingin 
hallinto-oikeus annulled the Energiavirasto’s decision of 28 April 2014 and 
repealed it insofar as it did not relate to the correction application, and annulled 
the Energiavirasto’s decision of 31 March 2014 and referred the case back to the 
Energiavirasto for a new hearing. 
7 The Energiavirasto filed an appeal at the Korkein hallinto-oikeus against the 
ruling of the Helsingin hallinto-oikeus and requested that the ruling of the 
Helsingin hallinto-oikeus be annulled and repealed. The Energiavirasto claimed 
that making an investigation request at the Energiavirasto did not give A the 
authority to file an appeal at a court in the case. 
8 The case pending before the Korkein hallinto-oikeus involves whether A has the 
authority to file an appeal against the Energiavirasto’s decisions at a national 
court, that is to say at the Helsingin hallinto-oikeus, and whether he had the right 
to participate in the hearing of his application for the introduction of measures 
before the regulatory authority. 
Principal arguments of the parties in the main proceedings 
9 The Energiavirasto, which filed an appeal at the Korkein hallinto-oikeus, claimed 
that A, who had made the investigation request, was not an involved party in 
relation to the decision regarding the legality of the spectrum of payment methods 
offered by Caruna Oy and was not authorised to file an appeal at a court against 
the Energiavirasto’s decision. The Energiavirasto’s decision in which the view 
was taken that the company under investigation had not breached its statutory 
obligations and the case did not require any supervisory measures was regarded, 
according to established Finnish case-law, as a ruling which did not contain any 
decision within the meaning of Paragraph 5 of the Administrative Court 
Procedures Code against which an appeal could be filed in court. In the case, A 
had only played the role of the person who instigated the investigation. According 
to the Energiavirasto, consumers are involved parties in matters which concern 
their interests or rights in relation to the consumer authorities, but not in matters 
forming part of the supervisory tasks of the Energiavirasto. The fact that the 
Energiavirasto, in the scope of its supervisory competence, had concluded that 
Caruna Oy had not breached the law in the case did not infringe the rights of A. 
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10 The Energiavirasto also found that legal disputes connected with a consumer 
customer’s contractual relationship did not fall within its competence. The 
consumer had the option of bringing an individual legal dispute concerning his 
own contractual relationship for a ruling before an ordinary court or the 
Committee for Consumer Disputes. The definition of the status of an involved 
party and the procedural rights connected with the involvement fell under the 
procedural autonomy of the Member States and there were no provisions in this 
regard in the Electricity Market Directive. 
11 A claimed before the Korkein hallinto-oikeus that the interpretation by the 
Helsingin hallinto-oikeus with regard to his position as involved party and with 
regard to his authority to file appeals was correct. The starting point had to be that 
a participant in the electricity market such as a consumer who was entitled to 
direct a ‘complaint’ within the meaning of Article 37(11) of the Electricity Market 
Directive to the national regulatory authority also had the right to take part before 
the regulatory authority in the position of an involved party in the treatment, 
affecting his own legal position, of the request for the introduction of measures, as 
well as the power, where required, to file an appeal in court against the decision of 
the authority in question. 
12 For its part, Caruna Oy claimed that the Energy Market Directive did not require 
that a person who has directed an investigation request to the Energiavirasto had 
to have a position as involved party in the treatment of the case before the 
regulatory authority or the power to file an appeal in court against a ruling issued 
by the regulatory authority. It could be regarded as a central purpose of the 
regulation that, in the event that a company operating in this field breaches 
statutory provisions, a customer could turn to the regulatory authority for the 
initiation of activities in the case, with the authority possibly obliging the 
company, where required, to act lawfully. 
Necessity of the request for a preliminary ruling 
13 It is to be decided before the Korkein hallinto-oikeus whether consumer customer 
A was authorised to file an appeal at the Helsingen hallinto-oikeus against the 
Energiavirasto’s decision not to take any measures against the network company 
Caruna Oy. It must be taken into consideration in this case that the decision issued 
by the Energiavirasto as national regulatory authority regarding the compatibility 
of Caruna Oy’s invoicing with the Electricity Market Law was also connected 
with a clause, relating to invoicing, of the electricity transmission contract 
between the company mentioned and A. 
14 The Energiavirasto is of the opinion that, in the matter settled thereby, A merely 
had the position of an initiator. The Energiavirasto’s decision concerned Caruna 
Oy and, according to the Energiavirasto, A is not authorised to file an appeal at a 
court against the decision issued thereby in its capacity as national regulatory 
ENERGIAVIRASTO 
 
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authority not to take any measures against Caruna Oy. It may be assumed that the 
national case-law supports this view taken by the Energiavirasto. 
15 In the opinion of the Korkein hallinto-oikeus, the case-law of the Court of Justice 
does not contain any cases in which a consumer customer or other natural person 
acting as customer has been found to be authorised to file an appeal at a court 
against decisions of a regulatory authority under circumstances similar to those of 
the present case. 
Brief summary of the basis for the reference 
16 According to a general principle of EU law, it must be possible to bring decisions 
by national authorities for a hearing before a court. Pursuant to that principle, it is 
for the national courts to rule on the lawfulness of a measure adversely affecting a 
party concerned and, consequently, to regard an action brought for that purpose as 
admissible even if the domestic rules of procedure do not provide for this in such 
a case (cf. accordingly judgments of 3 December 1992, Oleificio 
Borelli/Commission, C-97/91, EU:C:1992:491, paragraph 13 and paragraph 14, 
and of 17 September 2014, Liivimaa Lihaveis, C-562/12, EU:C:2014:2229, 
paragraph 75). 
17 In the case to be heard here, the Korkein hallinto-oikeus considers there to be a 
need for interpretation, from a legal perspective, as to whether a person who is a 
household customer of a network company and who is of the opinion that he has 
suffered disadvantages as a consumer customer due to that network company’s 
invoicing procedure and is bringing that matter to be decided before the national 
regulatory authority can be regarded as an affected party within the meaning of 
Article 37 of the Electricity Market Directive which can file an appeal at a court 
against the decision issued by the Energiavirasto as national regulatory authority 
not to take any measures in the matter, if it is taken into consideration here that the 
concept of affected party is not defined in the Electricity Market Directive. 
18 In this phase of the proceedings, the Korkein hallinto-oikeus is inclined towards 
the interpretation that Article 37 of the Electricity Market Directive does not 
impose any obligations in this respect, which means that the matter was to be 
settled by national law. In a departure from the opinion expressed by the Helsingin 
hallinto-oikeus in this regard, the Korkein hallinto-oikeus takes the provisional 
view that it was probably more obvious to interpret the concept of affected party 
in Article 37 as not covering an individual consumer customer. 
19 The Korkein hallinto-oikeus notes that, when examining paragraphs 11, 12, 15, 16 
and 17 of Article 37 of the Electricity Market Directive, it is not clear whether the 
concept of ‘affected party’ contained in the wording is the same in all the 
paragraphs. On the one hand, paragraphs 11 and 12 of that article are possibly to 
be interpreted as primarily concerning parties other than consumer customers to 
which, for its part, paragraph 17 of that article would relate. On the other hand, on 
account of the wording, it does not appear to be fully excluded that paragraph 17 
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of the article also does not directly concern consumer customers, which means 
that the settlement of the question was dependent on domestic law in this respect. 
Article 37 of the Electricity Market Directive does not expressly mention the 
rights of consumer customers. 
20 The need for legal interpretation in the case is increased further by the objectives 
of the Electricity Market Directive and the consumer’s position in the overall 
context of the provisions of the Directive. 
21 It can be seen from Article 1 of the Electricity Market Directive that this Directive 
establishes common rules for the generation, transmission, distribution and supply 
of electricity, together with consumer protection provisions, with a view to 
improving and integrating competitive electricity markets in the Community. 
Nevertheless, in the estimation of the Korkein hallinto-oikeus, there is no 
connection between the central objectives of the Electricity Market Directive and 
the establishment of particular rights for consumer customers.  
22 If the estimation that the Electricity Market Directive is not aimed at establishing 
particular rights for consumer customers is correct, the question of enforcement of 
those rights does not arise either. 
23 Even though no particular rights for consumers are established in the Electricity 
Market Directive, the realisation of other rights of the consumers still remains. 
The instruments required by the Electricity Market Directive were created in 
Finland in this regard. The supervision regarding the legality of electricity 
contracts from the perspective of consumer protection has been regulated in the 
domestic legal provisions as a task of the consumer ombudsman (see Chapter 2 of 
the Law on the Competition and Consumer Authority), with it also being possible 
for a consumer to bring disputes regarding the application of contractual 
conditions for a ruling before the Committee for Consumer Disputes (see Law on 
the Committee for Consumer Disputes) or before a Käräjäoikeus (court of first 
instance). The first-mentioned alternative also corresponds to the obligation set 
out in Article 3(13) of the Electricity Market Directive, according to which 
‘Member States shall ensure that an independent mechanism such as an energy 
ombudsman or a consumer body is in place in order to ensure efficient treatment 
of complaints and out-of-court dispute settlements’. According to the legislative 
proposal of the government (HE20/2013 vp), the consumer advice centre and the 
Committee for Consumer Disputes meet the requirements of the Electricity and 
Natural Gas Market Directives with regard to central service contact points for 
consumers and the out-of-court settlement of disputes. In this respect, it was 
therefore not necessary to change the legislation in connection with the 
implementation of the Electricity Market Directive. 
24 However, the competence for a legally binding ruling in an individual consumer 
law dispute only lies with an ordinary court, at first instance with the 
Käräjäoikeus. In Finland, there is no specific legal institution for minor consumer 
law disputes; they are instead ruled on in ordinary civil proceedings. 
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25 In the present case, the Korkein hallinto-oikeus considers there to be a need for 
interpretation as to whether there is a connection between Article 3 and Article 37 
of the Electricity Market Directive that is to be taken into consideration when 
interpreting the last-mentioned article. 
26 The Korkein hallinto-oikeus finally notes that, on 23 February 2017, the 
Commission made a proposal for a directive with common rules for the internal 
market in electricity (COM[2016](864)). The proposed directive would replace 
Directive 2009/72/EC. Article 37 of Directive 2009/72 is largely corresponded to 
in the directive proposal by Article 60 (Rulings and complaints), which appears in 
the main to have the same content as the current article. There is in contrast, 
regarding consumer empowerment and protection, a new Chapter III extensively 
regulating the rights of consumers (e.g. fundamental contractual rights in 
Article 10 and the right to out-of-court dispute settlement in Article 26). The 
proposal would clarify the position of the consumer in out-of-court dispute 
settlement proceedings, but the new directive would obviously also not be directed 
at establishing particular rights based on EU law for a consumer customer.