Judgment;Summary — ECLI:EU:C:2020:462
Date: 2020-06-11
Language of the case: Slovak
Court formation: Fifth Chamber
Subject matter: Energy;Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Slovakia

Translation C-378/19 — 1 
Case C-378/19 
Request for a preliminary ruling 
Date lodged:  
14 May 2019 
Referring court:  
Ústavný súd Slovenskej republiky (Slovakia) 
Date of the decision to refer: 
23 January 2019 
Applicant: 
Prezident Slovenskej republiky 
  
SLOVAK REPUBLIC 
ORDER 
of the Ústavný súd Slovenskej republiky (Constitutional Court of the Slovak 
Republic) 
[...]  
The Ústavný súd Slovenskej republiky (Constitutional Court of the Slovak 
Republic), meeting in camera [...] in plenary session [...] in the proceedings 
relating to the application by the President of the Slovak Republic for the 
initiation of proceedings under Article 125(1)(a) of the Ústava Slovenskej 
republiky (Constitution of the Slovak Republic) concerning the conformity of the 
first sentence of Article 5(1) and the third sentence of Article 14(3) of Zákon 
n. 250/2012 Z.z., o regulácii v sieťových odvetviach v znení neskorších predpisov 
(Law No 250/2012 on regulation in the network industries, as subsequently 
amended) with Article 1(1) and (2) of the Constitution of the Slovak Republic, 
read in conjunction with Article 4(3) of the Treaty on European Union and 
Article 288 of the Treaty on the Functioning of the European Union, 
hereby decides: 
1. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 23. 1. 2019 — CASE C-378/19 
 
2  
I.  Can Article 35(4) 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 be interpreted, in particular in the 
light of recital 33 thereof, as precluding, in a Member State, in the context of the 
amendment of a national measure transposing that directive, the power to 
nominate and dismiss the chairman of the Regulatory Authority from being 
withdrawn from the President of the Republic, who is directly elected by the 
citizens, and conferred instead on the Government, with the result that the legal 
situation which existed prior to the transposition of the directive is restored? 
[Or. 2] 
II.  Is it possible to interpret Article 35(5) of Directive 2009/72/EC …, in 
particular in the light of recital 34 thereof, as precluding a rule of national law 
which, in order to ensure defence of the public interest, permits ministers to take 
part in the tariff regulation procedure at the Regulatory Authority? 
[...] [stay of proceedings] [...]  
Grounds: 
I. 
Proceedings before the Constitutional Court of the Slovak Republic 
The application by the President of the Slovak Republic (‘the President’) for the 
initiation of proceedings under Article 125(1)(a) of the Constitution of the Slovak 
Republic (‘the ‘Constitution’) concerning the conformity of the first sentence of 
Article 5(1) and of the third sentence of Article 14(3) of Zákon n. 250/2012 Z.z., o 
regulácii v sieťových odvetviach v znení neskorších predpisov (Law No 250/2012 
on regulation in the network industries, as subsequently amended; ‘the Law on 
regulation in the network industries’) with Article 1(1) and (2) of the Constitution 
of the Slovak Republic, read in conjunction with Article 4(3) of the Treaty on 
European Union and Article 288 of the Treaty on the Functioning of the European 
Union, was lodged with the Constitutional Court of the Slovak Republic (‘the 
Constitutional Court’) on 16 October 2017. 
The application by the President is based on the assumption that the contested 
provisions of the Law on regulation in the network industries constitute an 
incorrect transposition 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 (‘Directive 2009/72’) and of 
Directive 2009/73/EC of the European Parliament and of the Council of 13 July 
2009 concerning common rules for the internal market in natural gas and 
repealing Directive 2003/55/EC (‘Directive 2009/73), with the result that they are 
contrary to Article 4(3) of the Treaty on European Union and to Article 288 of the 
Treaty on the Functioning of the European Union and, therefore, in parallel, also 
with Article 1(1) and (2) of the Constitution. [Or. 3] 
PREZIDENT SLOVENSKEJ REPUBLIKY 
 
3 
II. 
The contested provisions of national law 
The Law on regulation in the network industries is the law which transposes 
Directives 2009/72 and 2009/73 into national law. 
The Law on regulation in the network industries was amended by Zákon 
n. 164/2017 Z.z., ktorým sa mení a dopĺňa zákon č. 250/2012 Z. z. o regulácii v 
sieťových odvetviach v znení neskorších predpisov (Law No 164/2017 amending 
and supplementing Law No 250/2012 on regulation in the network industries; 
‘Law No 164/2017’). 
The contested provision of the first sentence of Article 5(1) of the Law on 
regulation in the network industries, prior to amendment by Law No 164/2017, 
was worded as follows:  
‘The Regulatory Authority [also ‘the ‘Authority’] shall be headed by the 
chairman, appointed and dismissed by the President of the Slovak Republic on a 
proposal from the Government of the Slovak Republic (‘the ‘Government’).’ 
Following the amendment by Law No 164/2017 the contested provision of the 
first sentence of Article 5(1) of the Law on regulation in the network industries 
reads as follows: 
‘The Regulatory Authority shall be headed by the chairman, appointed and 
dismissed by the Government of the Slovak Republic (‘the ‘Government’).’ 
The explanatory memorandum to Law No 164/2017 concerning the amendment of 
the wording of the first sentence of Article 5(1) of the Law on regulation in the 
network industries states as follows: 
‘The manner in which the position of chairperson of the Regulatory Authority is 
conferred is to be changed. Under current law, the chairman is appointed and 
dismissed by the President of the Slovak Republic on a proposal from the 
Government of the Slovak Republic. It is proposed that the chairperson be 
appointed by the Government of the Slovak Republic. This step reflects the actual 
responsibility of the Government of the Slovak Republic in the energy regulation 
sector, without prejudice to the independence of the Authority in the context of 
further changes. The Government of the Slovak Republic bears full responsibility 
for energy policy in the Slovak Republic and the powers of the President of the 
Republic in this sector are very limited. Therefore, it is appropriate [Or. 4] and 
logical that the power to appoint and dismiss the chairman of the Authority should 
be vested in the Government of the Slovak Republic’. 
The contested provision of Article 14(3) of the Law on regulation in the network 
industries, prior to amendment by Law No 164/2017, was worded as follows: 
REQUEST FOR A PRELIMINARY RULING OF 23. 1. 2019 — CASE C-378/19 
 
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‘The regulated person who has presented a tariff proposal shall be a party to the 
tariff regulation procedure. If the tariff regulation procedure is initiated of the 
Authority’s own motion, the regulated person whose tariffs the Authority intends 
to regulate shall be a party to the procedure.’ 
Following the amendment by Law No 164/2017 the contested provision of 
Article 14(3) of the Law on regulation in the network industries is worded as 
follows: 
‘The regulated person who has presented a tariff proposal shall be a party to the 
tariff regulation procedure. If the tariff regulation procedure is initiated of the 
Authority’s own motion, the regulated person whose tariffs the Authority intends 
to regulate shall be a party to the procedure. The Ministry [of the Economy of the 
Slovak Republic] shall also be a party to the tariff regulation procedure where 
there is a tariff regulation procedure pursuant to Article 11(1)(d) and 
Article 11(1)(e) for regional distribution system operators, and Article 11(2)(c) 
and Article 11(2)(d) for regional distribution system operators to which more than 
100 000 delivery points are connected, or the Ministry of the Environment of the 
Slovak Republic shall also be a party thereto where there is a tariff regulation 
procedure pursuant to Article 11(4)(a) to (c)’. 
The explanatory memorandum to Law No 164/2017 concerning the amendment to 
Article 14(3) of the Law on regulation in the network industries states as follows: 
‘The Ministry of the Economy of the Slovak Republic and the Ministry of the 
Environment of the Slovak Republic shall be granted, in certain tariff procedures, 
the procedural status of a party to the procedure, thereby providing them, in those 
tariff procedures, with the procedural arrangements which they require for 
consistent protection of the public interest’. [Or. 5] 
III 
The need for a reply to the questions referred  
The reason for the alleged inconsistency of the contested national law with the 
Treaty on European Union and the Treaty on the Functioning of the European 
Union is the failure to fulfil the obligation correctly to transpose Directives 
2009/72 and 2009/73 as regards the need to ensure the independence of the 
regulatory authority laid down in Article 35(4) of Directive 2009/72 (or 
Article 39(4) of Directive 2009/73) and Article 35(5) of Directive 2009/72 (or 
Article 39(5) of Directive 2009/73). 
Thus, an essential requirement for the decision of the Constitutional Court on the 
application by the President is the assessment as to whether the Law on regulation 
in the network industries, in the version resulting from amending Law 
No 164/2017, correctly transposes Directives 2009/72 and 2009/73. In order to 
make a proper assessment of that matter, the Constitutional Court requires an 
PREZIDENT SLOVENSKEJ REPUBLIKY 
 
5 
answer to the questions referred for a preliminary ruling, seeking an interpretation 
of the notion of ‘independence’ of the regulatory authority. 
In order to simplify matters, the wording of the questions refers only to the 
interpretation of Directive 2009/72. Given the identical rules on independence in 
Directives 2009/72 and 2009/73, the replies of the Court of Justice of the 
European Union (‘the Court of Justice’) should also apply to Directive 2009/73. 
As regards the notion of ‘independence’, the Court of Justice has already ruled in 
its case-law that, in relation to a public body, that term normally means a status 
which ensures that the body concerned can act completely freely, without taking 
any instructions or being put under any pressure (judgment of the Court of 
9 March 2010, Commission v Germany, C-518/07, EU:C:2010:125, 
paragraph 18). 
In his application the President has identified two instances of interference with 
the independence of the Regulatory Authority attributable to Law No 164/2017. 
The first arises from the amendment of the authority to appoint and dismiss the 
chairman of the Regulatory Authority, which is transferred from the President, 
who is [Or. 6] directly elected by the citizens, to the Government. The second lies 
in the inclusion, in the list of parties to the tariff procedure before the Regulatory 
Authority, of ministers who, in that procedure, are to defend the public interest. 
The Government of the Slovak Republic states in its observations, submitted to 
the Constitutional Court in the proceedings, that the transfer from the President to 
the Government of the authority to appoint and dismiss the chairman of the 
Regulatory Authority cannot undermine the independence of that Authority since 
the Law on regulation in the network industries contains a whole set of other 
guarantees safeguarding the independence of the Regulatory Authority which 
were unaffected by the amendment resulting from Law No 164/2017. 
Nonetheless, as a consequence of the amendment to the Law on regulation in the 
network industries by Law No 164/2017 there are doubts as to whether Directive 
2009/72 has been transposed correctly. These doubts relate to the objective 
pursued by the directive, which is (as recital 33 thereof makes clear) to contribute 
to strengthening the independence of the regulatory authority, in particular on the 
part of the government of the Member State. From this point of view, it does not 
seem possible to consider the amendments introduced by Law No 164/2017 to be 
measures designed to strengthen the independence of the regulatory authority on 
the part the Government. In that regard, there is no doubt that the approval of the 
original wording of the Law on regulation in the network industries strengthened 
the independence of the Regulatory Authority in comparison with the previous 
legislation in the form of Zákon č 276/2001 Z.z. o regulácii v sieťových 
odvetviach a o zmene a dopelnení niektorých zákonov (Law No 276/2001 on 
regulation in the network industries and amending and supplementing other laws) 
since the approval of the original wording of the Law on regulation in the network 
industries resulted in the power to appoint and dismiss the chairman of the 
REQUEST FOR A PRELIMINARY RULING OF 23. 1. 2019 — CASE C-378/19 
 
6  
Regulatory Authority being transferred from the Government to the President. 
However, as a result of the contested amendment to the Law on regulation in the 
network industries by Law No 164/2017, the legal situation relating to the 
appointment and dismissal of the chairman of the Regulation Authority has 
returned to what it was prior to the transposition of Directive 2009/72 in that that 
power is conferred once again on the Government. 
Similar conclusions obtain as regards providing for the possibility of certain 
ministers to be party to the tariff procedure before the Regulatory Authority. The 
law of the period preceding the transposition of Directive 2009/72, in the form of 
abovementioned Law [Or. 7] No 276/2001 on regulation in the network industries 
and amending and supplementing certain other laws, provided for that possibility 
in Article 14. However, as part of the transposition of Directive 2009/72, effected 
through the Law on regulation in the network industries, that possibility was 
excluded, but after the amendment of the latter law by Law No 164/2017 ministers 
are once again permitted to be party to the tariff procedure before the Regulatory 
Authority. From this point of view, too, the amendment to the Law on regulation 
in the network industries by Law No 164/2017 does not appear to contribute to 
strengthening the Regulatory Authority’s independence in relation to the legal 
situation which existed at the time when Directive 2009/72 was transposed (by the 
approval of the original wording of the Law on regulation in the network 
industries), as is required however, in the light of its objective, by Directive 
2009/72. 
The Court of Justice of the European Union has jurisdiction to give a preliminary 
ruling under Article 267 of the Treaty on the Functioning of the European Union 
on: 
(a) the interpretation of the Treaties; 
(b) the validity and interpretation of acts of the institutions, bodies, offices or 
agencies of the European Union. 
Where any such question is raised in a case pending before a court or tribunal of a 
Member State against whose decisions there is no judicial remedy under national 
law, that court or tribunal is required to bring the matter before the Court of 
Justice. 
In the light of the grounds set out above, the Constitutional Court has decided to 
refer to the Court of Justice questions for a preliminary ruling under Article 267 of 
the Treaty on the Functioning of the European Union (set out in paragraph 1 of the 
operative part of the present order). 
[...] [Or. 8] [citing of the rules of procedure regarding the staying of proceedings 
before the Constitutional Court] [...]