Opinion of the Advocate General — ECLI:EU:C:2022:743
Date: 2022-09-29
Language of the case: Romanian
Subject matter: Competition;Energy;Agreements, decisions and concerted practices;Principles, objectives and tasks of the Treaties;Exclusive agreements
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Romania

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: 
28 June 2021 
Referring court: 
Curtea de Apel București (Romania) 
Date of the decision to refer: 
3 June 2021 
Appellant: 
Bursa Română de Mărfuri SA 
Respondent: 
Autoritatea Națională de Reglementare în domeniul Energiei 
(ANRE) 
Intervening party: 
Federația Europeană a Comercianților de Energie (European 
Federation of Energy Traders) 
  
Subject matter of the main proceedings 
Appeal by which the appellant, the Bursa Română de Mărfuri (Romanian 
Commodities Exchange), submits that the Curtea de Apel București (Court of 
Appeal, Bucharest) should order the respondent, the Autoritatea Națională de 
Reglementare în domeniul Energiei (National Energy Sector Regulatory 
Authority, Romania) (ANRE), to issue to it, pursuant to Regulation (EU) 
2019/943, a licence to organise and operate centralised electricity markets. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-394/21 
 
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Subject matter and legal basis of the request for a preliminary ruling 
An interpretation of Regulation (EU) 2019/943, Directive (EU) 2019/944, 
Article 4(3) TEU, Articles 101 and 102 TFEU, and Article 106(1) TFEU, is 
sought pursuant to Article 267 TFEU. 
Questions referred 
(1) Having regard to the provisions 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, does Regulation (EU) 
2019/943 of the European Parliament and of the Council of 5 June 2019 on the 
internal market for electricity, in particular Article 1(b) and Article 3 thereof, 
prohibit, from the time of its entry into force, a Member State from continuing to 
grant one single licence to organise and operate the centralised electricity 
markets? Is there an obligation on the Romanian State, as of 1 January 2020, to 
bring to an end an existing monopoly on operation of the electricity market? 
(2) Does the scope ratione personae of the principles of free competition laid 
down in Regulation (EU) 2019/943, in particular in Article 1(b) and (c) and in 
Article 3 respectively, include the operator of an electricity market such as a 
commodities exchange? Is it relevant to this answer that, for the definition of the 
electricity market, point (40) of Article 2 of Regulation (EU) 2019/943 refers to 
the definition of electricity markets set out in point (9) of Article 2 of Directive 
(EU) 2019/944? 
(3) Must the grant by a Member State of one single licence to operate the 
electricity market be regarded as constituting a restriction of competition within 
the meaning of Articles 101 and 102 TFEU, in conjunction with Article 4(3) TEU 
and Article 106(1) TFEU? 
Provisions of EU law cited 
Article 4(3) TEU, Articles 101 and 102 TFEU, and Article 106(1) TFEU 
Regulation (EU) 2019/943 of the European Parliament and of the Council of 
5 June 2019 on the internal market for electricity, Article 1(b) and (c), Article 2, 
point (25), Article 3, Article 10(4) and (5) 
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, recitals 2 and 3, Article 2, points (9), (18) and (57) 
BURSA ROMÂNĂ DE MĂRFURI 
 
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Provisions of national law cited 
Legea energiei electrice și a gazelor nr. 123/2012 (Law No 123/2012 on electricity 
and natural gas), Article 10(2)(f), under which the competent authority is to grant 
a single licence for the operator of the electricity market and one for the operator 
of the balancing market 
Ordinul ANRE nr. 12/2015 privind aprobarea Regulamentului pentru acordarea 
licențelor și autorizațiilor în sectorul energiei electrice (ANRE Order No 12/2015 
approving the regulations for granting licences and authorisations in the electricity 
sector) 
Succinct presentation of the facts and of the main proceedings 
1 Under the Legea privind bursele de mărfuri nr. 357/2005 (Law No 357/2005 on 
commodities exchanges), the appellant has had, since 1992, the status of 
autonomous institution with general competence to operate markets of public 
interest. 
2 On 20 August 2020, the appellant applied to ANRE, pursuant to Regulation 
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 Following ANRE’s refusal to issue that licence, the appellant brought an appeal 
before the Curtea de Apel București seeking an order requiring the respondent to 
issue the licence in question. 
4 In its appeal, the appellant claimed that Regulation 2019/943, in conjunction with 
Directive 2019/944, requires national regulatory authorities actually to ensure 
competition between operators of electricity markets. 
5 In the view of the appellant, the principles of free competition established by the 
regulation do not exclude the electricity market operator defined in point (7) of 
Article 2 thereof. 
6 ANRE pleaded in its defence, relying on Article 10(2)(f) of Law No 123/2012 and 
arguing that, on the date of the entry into force of that law, the company 
Operatorul Pieței de Energie Electrică și Gaze Naturale ‘OPCOM’ S. A. already 
held a licence to operate the centralised electricity markets, which had been issued 
in 2001 for a period of 25 years, and that therefore that operator held an exclusive 
monopoly in that regard. 
7 The respondent further submits that Regulation 2019/943 lays down the general 
principles aimed at participants in the electricity market and that that notion does 
not include, according to the definition in point (25) of Article 2 of the regulation, 
the operator of the electricity market. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-394/21 
 
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Principal arguments of the parties to the main proceedings 
8 The appellant considers that the obligation on national regulatory authorities to 
ensure competition between electricity market operators forms the basis of 
Regulation 2019/943 and arises from Article 1(b) thereof. That article of the 
regulation, in conjunction with Article 3 and Article 10(4) and (5) thereof, 
requires ANRE to prevent any anti-competitive monopoly. 
9 On the basis of Article 1(b) and (c) and of Article 3 of the regulation, the appellant 
further submits that the principles of free competition established by the 
regulation do not in any way exclude the electricity market operator as defined in 
point (7) of Article 2 of the regulation. 
10 Since the market operator is the entity which carries out the aggregation, it argues, 
the definition of ‘market participant’ in point (25) of Article 2 includes the 
operator of the electricity market. 
11 ANRE takes the view that there is no need to refer the case to the Court of Justice. 
12 It contends that, since the Romanian market is not large, the creation of two 
separate markets would merely lead to the bids submitted by the same tenderers 
being distributed across those two markets, something which would clearly 
constitute an infringement of competition. 
13 The respondent recalls that the appellant also brought a similar action in 2014, 
which was dismissed and in which the appellant also raised a plea of 
unconstitutionality of Article 10(2)(f) of Law No 123/2012, which in turn was 
dismissed by the Curtea Constituțională (Constitutional Court). 
14 As regards the questions referred, ANRE considers that they are not necessary for 
the purposes of resolving the case and that the regulation is clear and can therefore 
be applied by the court. 
15 ANRE further takes the view that the monopoly permitted by the national 
legislation is not contrary to the regulation since the latter contains no provision 
requiring the Member States to designate several economic operators charged with 
organising and operating the centralised electricity markets for wholesale trading 
in electricity, but rather sets out general principles aimed at participants in the 
electricity market which, according to the definition in point (25) of Article 2, do 
not include network operators or the operator of the electricity market. 
16 In the view of the respondent, Article 1(b) of the regulation, on which the 
appellant relies, is clarified in recital 13 of Directive 2019/944, with the result that 
the term ‘resources providers’ means providers of electricity from various energy 
sources (for example, wind, solar, geothermal, hydro-electric, wave and tidal 
energy, etc.), and not providers of services (such as a market management 
service), just as the term ‘facilitating aggregation of distributed demand and 
BURSA ROMÂNĂ DE MĂRFURI 
 
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supply’ means facilitating the market entry of aggregators as a separate entity 
engaged solely in aggregating activities. 
17 The appellant further considers that the comparison of [the appellant], in 
particular, or an operator of the electricity market, in general, to an aggregator 
within the meaning of the definition given in the directive appears forced and 
without foundation in the present legislative context. The aggregators are not, and 
will not be, a competitive market mechanism or a mechanism for operating 
electricity markets. 
18 With regard to Article 3 invoked by the appellant, the respondent states that it 
relates to the rule on competitive pricing, based on supply and demand, 
irrespective of the number of operators who must apply it. The use of the term 
‘market operators’ in the plural is due to the fact that the text in question relates to 
the legal entities of the Member States, which does not mean that several market 
operators must operate in each Member State. 
19 The respondent also recalls that, following the entry into force of Law 
No 123/2012, OPCOM was designated, on the basis of Regulation 2015/1222, as 
the nominated electricity market operator (NEMO) of the day-ahead market 
(DAM) and of the intraday market (IM) for electricity for the bidding zone of 
Romania. 
20 By way of derogation from the competition model governed by Article 4 of 
Regulation (EU) 2015/1222, Article 5 of that regulation offers the possibility of 
applying the monopoly model by designating a single NEMO, and that decision is 
left to the discretion of the Member State concerned, subject to notification 
thereof to the Commission. 
Succinct presentation of the reasons for the request for a preliminary 
21 The referring court, the Curtea de Apel București, takes the view that, in order to 
resolve the dispute before it, it is necessary for the Court of Justice to give a 
preliminary ruling on whether Regulation 2019/943 is applicable to the operator 
of an energy market, whether that regulation, possibly interpreted in conjunction 
with Directive 2019/944, prohibits – from the date of its entry into force – a 
Member State from issuing one single licence to operate the internal electricity 
market of that Member State, and whether the grant of one single licence is 
contrary to Articles 101 TFEU and 102 TFEU, in conjunction with Article 4(3) 
TEU and Article 106(1) TFEU. 
22 As regards the need to refer the matter to the Court of Justice, the referring court 
notes, on the one hand, that the provisions of EU law to which the questions refer 
have not yet been interpreted and, on the other, that the correct application of EU 
law in the present case is not so obvious as to leave no scope for any reasonable 
doubt. Furthermore, the case-law of the Court of Justice, on which the respondent 
relies, predates the regulation.