Opinion of the Advocate General — ECLI:EU:C:2008:245
Date: 2008-04-24
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Limits (Art. 234 EC) 2. Preliminary rulings – Jurisdiction of the Court – Limits – Jurisdiction of the national court (Art. 234 EC) 3. Approximation of laws – Directives concerning approximation of law – Common rules for the internal market in natural gas – Directive 2003/55 (European Parliament and Council Directive 2003/55, Art. 23(1)) 4. Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Public service concession granted without a competitive tendering procedure (Arts 43 EC, 49 EC and 86(1) EC) 1. In the context of proceedings brought under Article 234 EC, the Court does not have jurisdiction to rule on the compatibility of a national measure with Community law. The Court may, however, extract from the wording of the questions formulated by the national court, and having regard to the facts stated by the latter, those elements which concern the interpretation of Community law for the purpose of enabling the national court to resolve the legal problems before it. On the other hand, it is not for the Court of Justice to rule on the interpretation and applicability of provisions of national law or to establish the facts relevant to the decision in the main proceedings. The Court must take account, under the division of jurisdiction between the Community Courts and the national courts, of the factual and legislative context, as described in the order for reference, in which the question put to it is set. (see paras 25, 28) 2. In the context of the cooperation between the Court of Justice and the national courts under Article 234 EC, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted for a preliminary ruling concern the interpretation of Community law, the Court is, in principle, bound to give a ruling. (see para. 27) 3. Directive 2003/55 concerning common rules for the internal market in natural gas and repealing Directive 98/30 does not preclude legislation of a Member State from providing for the extension, on conditions which it lays down, of the length of the transitional period at the end of which the early cessation of a concession for the distribution of natural gas granted without a competitive tendering procedure must occur. In those circumstances, it must also be held that neither Article 10 EC nor the principle of proportionality precludes such legislation. Article 23(1) of that directive sets out the calendar for the opening of the market for the supply of natural gas and provides, in particular, that the Member States must ensure that the eligible customers, that is to say those who are entitled to approach a supplier of their choice, are, from 1 July 2007, all customers. That provision concerns the supply of natural gas and not its distribution. Therefore, no obligation can be inferred from it for the Member States to put an end to distribution contracts granted without any competitive tendering procedure. Directive 2003/55 contains, moreover, no provision on current concessions for the distribution of natural gas. (see paras 38-41, operative part 1) 4. Articles 43 EC, 49 EC and 86(1) EC do not preclude legislation of a Member State to implement the common rules for the internal market in natural gas by means of the early cessation, at the end of a transitional period, of concessions for the distribution of natural gas granted without a competitive tendering procedure, from providing for the extension, on certain conditions, of the length of that transitional period, provided that such an extension can be regarded as being necessary to enable the contracting parties to untie their contractual relations on acceptable terms both from the point of view of the requirements of the public service and from the economic point of view. Notwithstanding the fact that such a public service concession is outside the scope of the directives on the different categories of public contracts, public authorities are nonetheless bound, when they envisage granting such a concession, to comply with the fundamental rules of the Treaty, in general, and the principle of non-discrimination on the grounds of nationality, in particular. More particularly, since such a concession is of a certain cross-border interest, its award, in the absence of any transparency, to an undertaking located in the Member State to which the contracting authority belongs, amounts to a difference in treatment to the detriment of undertakings which might be interested in that concession but which are located in other Member States. Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings located in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 43 EC and 49 EC. In addition, Article 86(1) EC precludes Member States, in the case of public undertakings and undertakings to which they grant special or exclusive rights, from maintaining in force national legislation contrary to Articles 43 EC and 49 EC. Such a difference in treatment can however be justified by the necessity of complying with the principle of legal certainty, which forms part of the Community legal order and is binding on every national authority responsible for implementing Community law. Since Directive 2003/55 concerning common rules for the internal market in natural gas and repealing Directive 98/30 requires existing concessions for the distribution of gas to be called in question only in cases of long-standing concessions not expiring for decades which were granted at a time when the Court had not yet held that contracts with a cross-border interest might be subject to duties of transparency arising from primary law, the principle of legal certainty, which requires, particularly, that rules of law be clear, precise and predictable in their effects, not only permits but also requires that the termination of such a concession be coupled with a transitional period which enables the contracting parties to untie their contractual relations on acceptable terms both from the point of view of the requirements of the public service and from the economic point of view. It is for the referring court to determine whether, in particular, the extension of the length of the transitional period brought about by national legislation can be regarded as being necessary to comply with the principle of legal certainty. (see paras 57-61, 64-65, 67-73, operative part 2)