Opinion of the Advocate General — ECLI:EU:C:2024:611
Date: 2024-07-11
Language of the case: Romanian
Procedure: Reference for a preliminary ruling
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 March 2023 
Referring court: 
Tribunalul București (Romania) 
Date of the decision to refer: 
24 February 2023 
Appellant: 
Engie România SA 
Respondent: 
Autoritatea Națională de Reglementare în Domeniul Energiei 
  
Subject matter of the main proceedings 
Appeal against the judgment of the Judecătoria Sectorului 4 București (Court of 
First Instance, District 4, Bucharest, Romania) rejecting as unfounded the 
complaint (plângerea contravențională) lodged by Engie România SA against a 
report finding and imposing a fine for administrative infringements, drawn up by 
the Autoritatea Națională de Reglementare în Domeniul Energiei (ANRE) (the 
National Energy Sector Regulatory Authority). 
Subject matter and legal basis of the request 
Pursuant to Article 267 TFEU, interpretation is sought of Article 3(1) of Directive 
2009/73/EC, of Article 50 and Article 52(1) and (3) of the Charter of Fundamental 
Rights of the European Union, and of the principle of proportionality. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-205/23 
 
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Questions referred for a preliminary ruling 
1. Can an alleged breach of the duty of transparency incumbent on natural gas 
suppliers in their dealings with household consumers, which has been 
implemented in national legislation and is treated under that legislation as an 
administrative offence (contravenția), also result in the competent national 
authority’s requiring a natural gas supplier to apply, in dealings with consumers, a 
price imposed by administrative means that takes no account of the principle of 
freedom to fix prices in the natural gas market, that principle being established by 
Article 3(1) of Directive 2009/73/EC concerning common rules for the internal 
market in natural gas and repealing Directive 2003/55/EC? 
2. Can the fact that a natural gas supplier has been fined both by the consumer 
protection authority and by the energy sector regulatory authority, by means of 
two separate reports of offences imposing the same measures on the supplier 
(duplication of administrative acts imposing measures), be regarded as a justified 
restriction of the principle ne bis in idem, under the provisions of Article 52 of the 
Charter of Fundamental Rights of the European Union, or is it a breach of that 
principle? 
Does such a combination of acts imposing the same measures on the basis of the 
same facts, drawn up by different authorities, comply with the principle of 
proportionality? 
Provisions of EU law relied on 
Charter of Fundamental Rights of the European Union: Article 50 and 
Article 52(1) and (3) 
Directive 2009/73/EC concerning common rules for the internal market in natural 
gas and repealing Directive 2003/55/EC: Article 3(1) 
Provisions of national law relied on 
Legea nr. 363/2007 privind combaterea practicilor incorecte ale comercianților în 
relația cu consumatorii și armonizarea reglementărilor cu legislația europeană 
privind protecția consumatorilor (Law No 363/2007 on combating improper 
commercial practices on the part of traders in dealings with consumers and 
harmonising regulations with European consumer protection legislation) 
Legea nr. 123/2012 a energiei electrice și a gazelor naturale (Law No 123/2012 on 
electricity and natural gas): 
– Article 143(1)(k) provides that natural gas suppliers are, inter alia, under an 
obligation to provide final customers with clear information on the prices and 
tariffs applied, as well as on the conditions of access to and use of the services 
ENGIE ROMÂNIA 
 
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which they offer; failure to comply with this obligation constitutes an 
administrative offence (contravenția) (Article 194(241)) punishable by a fine of 
between 20 000 Romanian lei (RON) and RON 400 000 [(Article 195(2(c)]; 
– Article 194(33) provides that failure to comply with the provisions on 
informing consumers of natural gas constitutes an administrative offence 
(contravenția) punishable by a fine of between RON 10 000 and RON 200 000 
[(Article 195(2(b)]. 
Regulamentul privind furnizarea gazelor naturale la clienții finali, aprobat prin 
Ordinul ANRE nr. 29/2016 (Regulation on the supply of natural gas to final 
customers, approved by ANRE Decision No 29/2016): 
– Article 22(1) provides that, in a competitive market, natural gas is to be 
supplied on a competitive basis, under a supply contract concluded between the 
supplier and the final customer, at a supply price and on commercial terms 
negotiated between them or established in standard offers. 
Ordinul ANRE nr. 106/2014 privind modalitățile de informare a clienților finali de 
către furnizorii de gaze naturale cu privire la condițiile comerciale de furnizare a 
gazelor naturale (ANRE Decision No 106/2014 establishing the methods by which 
natural gas suppliers are to inform final customers of the commercial terms of the 
supply of natural gas): 
– Article 4(1), (2), (5) and (6) provides that final customers may conclude a 
supply contract either by direct negotiation or by accepting a standard offer 
drawn up by the supplier; in the latter case, the supplier is under an obligation 
to include in the contract, as a minimum, all the information contained therein, 
which must be drafted and presented in a simple, clear, legible and accessible 
fashion that is easy to understand. 
Ordinul ANRE nr. 27/2020 pentru stabilirea unor măsuri privind furnizarea 
gazelor naturale la clienții casnici în perspectiva eliminării prețurilor reglementate 
(ANRE Decision No 27/2020 establishing measures for the supply of natural gas 
to household customers in view of the abolition of regulated tariffs): 
– Article 7(1) provides that, in the event that a household customer does not 
assert his or her right of eligibility by 30 June 2021, and has not concluded a 
contract for the supply of natural gas with his or her current supplier or with 
another supplier on a competitive basis, the offer made by the current supplier 
is deemed accepted and the contract relating to that offer is deemed to have 
been tacitly accepted under the conditions laid down in the Codul civil (Civil 
Code), unless the customer informs the supplier before that date of his or her 
refusal to conclude the contract or of his or her wish to amend or supplement 
the terms of the contract. 
Regulamentul de constatare, notificare și sancționare a abaterilor de la 
reglementările emise în domeniul energiei, aprobat prin Ordinul ANRE 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-205/23 
 
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nr. 62/2013 (Regulation on establishing, notifying and imposing fines for 
infringements of the regulations in the energy sector, approved by ANRE 
Decision No 62/2013): 
– Article 21(1) and (2) provides that, when a fine is imposed for an 
administrative offence (sancțiunea contravențională), compliance measures and 
deadlines are to be established for restoring legality and/or for the correct 
application of the regulations and for remedying the existing irregularity and 
that, by the deadline set in the report finding and imposing a fine for an 
administrative offence, the offending party must remedy the irregularity found 
by complying with the compliance measures ordered. 
Ordonanța Guvernului (OG) nr. 2/2001 privind regimul juridic al contravențiilor 
(Government Decree No 2/2001 establishing the legal rules applicable to 
administrative offences): 
– Article 5(7) provides that a single administrative offence (contravenția) may 
attract only one main penalty (sancțiunea contravențională) and one or more 
ancillary penalties. 
Succinct presentation of the facts and procedure in the main proceedings 
1 In a report finding and imposing a fine for an administrative offence, dated 
11 October 2021 (‘the report of 11 October 2021’), ANRE found that the 
appellant [before the Tribunalul București (Regional Court, Bucharest, Romania)], 
as a licensed supplier of natural gas, had committed numerous infringements of 
the rules governing the obligations of natural gas suppliers toward final customers. 
2 In the first place, ANRE found irregularities in the content of some standard offers 
for the supply of natural gas, consisting in: (i) a failure to state the date on which 
the offer was drawn up, (ii) a failure to state the period of validity and (iii) a 
failure to state any alternative to the sending of bills by electronic means. 
3 In the second place, ANRE found a failure in some standard offers to state 
expressly that, under certain circumstances, the price for the supply of natural gas 
could change, even though the contractual terms contained such a provision and 
household customers were duly informed in connection with the duty to provide 
information and in connection with relevant options, such that a price change 
could occur as a consequence of external, unforeseeable events. 
4 Customers were in fact informed of the ‘abolition of ANRE-regulated prices for 
the supply of natural gas to household customers’ and were also informed of the 
increase in the price for the supply of natural gas, which customers had agreed to 
on 1 July 2021, from RON 155.24/MWh, exclusive of VAT, to RON 175/MWh, 
exclusive of VAT, with effect from 1 November 2021. The latter communication 
also included an addendum for the increase in the price for the supply of natural 
gas to that figure. 
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5 On the basis of its findings in the report of 11 October 2021, ANRE decided to 
fine the appellant a total of RON 800 000 and, in one specific case, to issue a 
warning. 
6 In addition, ANRE imposed certain compliance measures on the appellant, with 
which it was required to comply within 15 days of the communication of the 
report of 11 October 2021. Those compliance measures consisted in notifying the 
final customers identified in the report and in identifying and notifying all final 
customers who had accepted standard offers at a fixed price applicable throughout 
the relevant period that the fixed price for natural gas to which the appellant had 
committed itself by virtue of the standard offers would be maintained, and in the 
annulment of the addenda sent to customers increasing the price for the supply of 
natural gas. 
7 Before the report of 11 October 2021 was drawn up, the appellant had been made 
the subject of an inspection by the Autoritatea Națională pentru Protecția 
Consumatorilor (ANPC) (the National Authority for Consumer Protection). That 
inspection concluded with a report of 14 September 2021 finding and imposing a 
fine for an administrative offence, in which that authority found that, in the 
conduct of its economic activity, the appellant had employed misleading and 
aggressive commercial practices, thereby infringing the provisions of Law 
No 363/2007. 
8 According to ANPC, the practices in question consisted in sending consumers 
communications containing initial offers that stipulated a certain price and certain 
conditions, valid for 12 months, which were tacitly accepted by consumers, 
followed three months later by new communications containing offers at a 
different price. In this way, the appellant had misled consumers, inasmuch as the 
price change occurred during the period of validity of the initial offers. 
9 On the basis of its finding of those improper commercial practices, the ANPC, by 
decision of 14 September 2021, imposed measures on the appellant requiring it to 
cease those practices, to suspend its business until it had ceased them and to 
refrain from changing the price for the supply of natural gas to household 
customers. 
10 By a complaint (plângerea contravențională) registered on the roll of the Court of 
First Instance, District 4, Bucharest, the appellant challenged the report of 
11 October 2021. 
11 By judgment of 14 March 2022, that court rejected the complaint as unfounded 
and confirmed the report of 11 October 2021. 
12 The appellant lodged an appeal against the judgment of 14 March 2022 and the 
matter was thus brought before the referring court, which will be required to give 
final judgment in the case. In the appeal proceedings, the appellant requested that 
the matter be referred to the Court of Justice for a preliminary ruling on the issues 
described in the questions submitted. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-205/23 
 
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The essential arguments of the parties in the main proceedings 
13 In the report of 11 October 2021, ANRE found, first, that the appellant had not 
fulfilled its legal obligation to make available to its final customers, in an open, 
explicit and transparent fashion, clear information on the prices that it charged for 
the supply of natural gas to locations where it is used. 
14 Secondly, ANRE found that the standard offers accepted by customers, on the 
basis of which contracts were concluded, stipulated a fixed price valid for a period 
of 12 months, without specifying that the supplier reserved the right to change or 
update the price proposed during that period, although that option was provided 
for in the contracts that were concluded. 
15 Consequently, ANRE found that, since any price change made after the 
conclusion of a contract relating to a standard offer constituted an infringement by 
the natural gas supplier of its duty of transparency under Article 143(1)(k) of Law 
No 123/2012, the facts established constituted administrative offences 
(contravenția) under Article 194(241) of that same law. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
16 The referring court first of all notes that ANPC, on the one hand, and ANRE, on 
the other, have imposed penalties on the appellant in respect of the same acts, 
which the two authorities have nevertheless characterised differently, ANPC 
treating them as an infringement of a legal obligation owed to consumers laid 
down by Law No 363/2007 and ANRE treating them as a breach of the duty of 
transparency laid down by Article 143(1)(k) of Law No 123/2012. 
17 The referring court then notes that both authorities imposed on the appellant the 
same obligation to remedy the situation, namely reversion to the price fixed in its 
standard offers in April 2021, which is significantly lower than the purchase price 
of natural gas in the open market, given the changes in that price on the market 
during the period from July to September 2021 and subsequently. 
18 Thus, by its first question, the referring court asks the Court of Justice to interpret 
Article 3(1) of Directive 2009/73, which has been transposed into national law by 
Title II of Law No 123/2012, which forms the basis on which the Report of 
11 October 2021 was drawn up. 
19 The referring court states, in this connection, that the reference to the Court of 
Justice is necessary in order to clarify whether it is possible for the regulatory 
authority of a Member State to impose on a natural gas supplier a different price 
from the market price regulated by Article 3(1) of Directive 2009/73 in a context 
in which that authority imputes to the supplier in question a breach of its duty of 
transparency toward customers on the basis of legislation transposing that 
directive into national law. 
ENGIE ROMÂNIA 
 
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20 By its second question, the referring court asks the Court of Justice to interpret 
Article 50 and Article 52(1) and (3) of the Charter, the answer to that question 
being necessary in order to clarify whether the application of the principle ne bis 
in idem (which, in the present case, is also governed by national law, under 
Government Decree No 2/2001) may be restricted in the case where two penalties 
are imposed, on different legal bases (Law No 123/2012 and Law No 363/2007), 
in respect of the same facts.