Opinion of the Advocate General — ECLI:EU:C:2012:730
Date: 2012-11-20
Language of the case: Polish
Subject matter: Right of establishment;Freedom to provide services
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Poland

Summary — Judgment of the Court (Fourth Chamber), 27 June 2013 1. Actions for failure to fulfil obligations — Subject-matter of the dispute — Determination during the pre-litigation procedure — Subsequent enlargement — Not permissible (Art. 258 TFEU) 2. Energy — Conditions for granting and using authorisations for the prospection, exploration and extraction of hydrocarbons — Directive 94/22 — Access to activities of prospecting, exploring for and producing hydrocarbons and exercise thereof — Prohibition of discrimination — National rules making the access to those activities subject to a prior obligation to have an office or establishment on the territory of the Member State concerned — Failure to fulfil obligations (European Parliament and Council Directive 94/22, Art. 2(2)) 3. Energy — Conditions for granting and using authorisations for the prospection, exploration and extraction of hydrocarbons — Directive 94/22 — Access to activities of prospecting, exploring for and producing hydrocarbons and exercise thereof — Prohibition of discrimination — National rules conferring an advantageous position on the entity which has previously pursued prospection and exploration activities — Failure to fulfil obligations (European Parliament and Council Directive 94/22, Art. 2(2)) 4. Energy — Conditions for granting and using authorisations for the prospection, exploration and extraction of hydrocarbons — Directive 94/22 — Grant of authorisations — National authorisation comprising mining usufruct rights and a concession — National rules providing for the publication of a notice and grant of only the mining usufruct rights through a tendering procedure — Lawfulness — Conditions (European Parliament and Council Directive 94/22, Arts 1, para. 3, and 3(1) and (2)) 5. Energy — Conditions for granting and using authorisations for the prospection, exploration and extraction of hydrocarbons — Directive 94/22 — Grant of authorisations — National authorisation comprising mining usufruct rights and a concession — National rules making the grant of the concession conditional on the provision of a guarantee — Lawfulness — Conditions (European Parliament and Council Directive 94/22, Arts 5, paras 1(a) and 2; and 6(1) and (2)) 6. Energy — Conditions for granting and using authorisations for the prospection, exploration and extraction of hydrocarbons — Directive 94/22 — Obligation to define and publish beforehand the criteria for the grant of authorisations — Member State publishing the categories of criteria for assessing tenders, whilst referring for a specific description of those criteria, to other documents — Failure to fulfil obligations (European Parliament and Council Directive 94/22, Art. 5, para. 1, fifth subpara.) 7. Member States — Obligations — Implementation of directives — Failure to fuflil obligations not contested 1. See the text of the decision. (see paras 28-30) 2. A Member State which requires an economic operator established in another Member State wishing to obtain a concession for the prospection, exploration and production of hydrocarbons to have an office or establishment on that Member State’s territory before the concession can even be granted to it, when that requirement makes access to the envisaged economic activity more difficult for that operator than for an operator established principally in that Member State, fails to comply with its obligations under Article 2(2) of Directive 94/22 on the conditions for granting and using authorisations for the prospection, exploration and extraction of hydrocarbons. (see paras 51, 102, operative part) 3. A Member State whose national rules confer an advantageous position for a five-year period on the entity which has previously pursued prospection and exploration activities, thereby making it more difficult, if not impossible, for an entity which has not pursued either prospection or exploration of the deposits in question to obtain permission to extract hydrocarbons, fails to comply with its obligations under Article 2(2) of Directive 94/22 on the conditions for granting and using authorisations for the prospection, exploration and extraction of hydrocarbons. Although the Member States are free to guarantee some compensation for entities which have incurred expenditure in drawing up geological documentation in the course of their prospection and exploration activities, that compensation may not be in the form provided for in the legislation at issue without infringing the rule of non-discriminatory access for all entities to activities such as the extraction of hydrocarbons as laid down in Article 2(2) of Directive 94/22. (see paras 61, 63, 102, operative part) 4. A Member State which has introduced a national procedure under which the authorisation to exercise the exclusive right to engage in the prospection, exploration or extraction of hydrocarbons in a geographical area within the meaning of Article 1(3) of Directive 94/22 on the conditions for granting and using authorisations for the prospection, exploration and extraction of hydrocarbons comprises both mining usufruct rights and concessions has not failed to comply with its obligations under Article 3(1) of that directive by providing that only the grant of the mining usufruct rights is done through a tendering procedure, whilst the grant of the concession to the successful applicant for those rights is subject only to compliance with certain formal requirements. The possibility cannot be ruled out, a priori, that such a system may guarantee that authorisations are granted following a procedure in which all interested entities may submit applications within the meaning of Article 3(1) of that same directive. Similarly, the fact that the concession procedure is not published in accordance with Article 3(2) of Directive 94/22 is not contrary to that provision or, therefore, Article 3(1). (see paras 73, 74, 80) 5. It is apparent from a combined reading of Article 5(2) and Article 6(1) and (2) of Directive 94/22 on the conditions for granting and using authorisations for the prospection, exploration and extraction of hydrocarbons that, where warranted by particularly important State interests or particularly important public interests relating especially to environmental protection, a Member State may make the grant of a concession conditional on the provision of a guarantee capable of providing compensation for the harmful effects of the activities carried out under the concession, even though such a guarantee does not come within the scope of Article 5(1)(a) of Directive 94/22. (see paras 86, 87) 6. A Member State which, instead of taking the measures necessary to ensure that the criteria on the basis of which authorisations are granted are drawn up and published in the Official Journal of the European Union before the start of the period for submission of applications, merely publishes in the Official Journal of the European Union the categories of criteria for assessing those tenders, whilst referring for a specific description of those criteria to other documents, which may be requested from the relevant national department, fails to fulfil its obligations under the fifth subparagraph of Article 5(1) of Directive 94/22 on the conditions for granting and using authorisations for the prospection, exploration and extraction of hydrocarbons. (see paras 91, 92, 102, operative part) 7. See the text of the decision. (see para. 98)