Judgment — ECLI:EU:C:2009:673
Date: 2009-10-29
Language of the case: Swedish
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Energy;Right of establishment;Approximation of laws;Freedom to provide services
Concepts: Energy
Procedure: Action for failure to fulfil obligations - successful
Origin: Sweden

Summary of the Judgment Approximation of laws – Measures for the establishment and proper functioning of the internal market in electricity – Directive 2003/54 – Organisation of access to networks (European Parliament and Council Directive 2003/54, Art. 23(2)(a)) A Member State which fails to make the regulatory authorities responsible for approving, in advance, at least the methodologies used to calculate or establish the terms and conditions for access to national networks, including transmission and distribution tariffs in accordance with Article 23(2)(a) of Directive 2003/54 concerning common rules for the internal market in electricity and repealing Directive 96/92, fails to fulfil its obligations under that directive. Even if the transposition or the interpretation put forward by a Member State serves, or better serves, certain aims pursued by that directive, that Member State may not disregard the provisions expressly laid down in that directive. In order to comply with the requirements of Directive 2003/54, a Member State cannot merely apply a system in which review of the methodology used to establish, inter alia, the electricity transmission and distribution tariffs is carried out a posteriori, even if that review were as effective as a system of prior review, since the directive expressly provides for use of a system of prior approval and does not allow the Member States the possibility of applying a different system. It is apparent from the very wording of Article 23(2)(a) of that directive that, firstly, the national regulatory authorities are to fix or approve, before their entry into force, at least the methodologies used to calculate or establish the terms and conditions for connection and access to national networks, including transmission and distribution tariffs, and, secondly, that those tariffs or methodologies must allow the necessary investments in the networks to be carried out in a manner allowing these investments to ensure the viability of the networks. Accordingly, the objective of the directive can be achieved only by the establishment of precise tariffs or of elements of a methodology of tariff calculation of a level of precision such as to allow economic operators to estimate their cost of access to the transmission and distribution networks. (see paras 33-34, 37, 40, 43, operative part)