Opinion of the Advocate General — ECLI:EU:C:2023:798
Date: 2023-10-19
Language of the case: Bulgarian
Subject matter: General provisions;Energy;Approximation of laws;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-395/22 – 1 
Case C-395/22 
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:  
14 June 2022 
Referring court:  
Administrativen sad Varna (Bulgaria) 
Date of the decision to refer:  
3 June 2022 
Applicant:  
Trade Express-L OOD 
Defendant:  
Zamestnik-predsedatel na Darzhavna agentsia ‘Darzhaven rezerv i 
voennovremenni zapasi’  
  
Subject matter of the main proceedings 
The dispute between the parties concerns the lawfulness of an order concerning 
the establishment of emergency stocks issued on 29 April 2021 by the Zamestnik-
predsedatel na Darzhavna agentsia ‘Darzhaven rezerv i voennovremenni zapasi’ 
(Vice-President of the State Agency ‘State Reserves and Wartime Stocks’). 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Having regard to the objective of Council Directive 2009/119/EC of 
14 September 2009 imposing an obligation on Member States to maintain 
minimum stocks of crude oil and/or petroleum products, and to Article 2(d) of 
Regulation (EC) No 1099/2008 of the European Parliament and of the Council of 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-395/22 
 
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22 October 2008 on energy statistics, and in the light of the principle of 
proportionality under Article 52(1) of the Charter of Fundamental Rights of the 
European Union, in conjunction with Article 17 thereof, must recital 33 and 
Article 1, Article 3, Article 8 and Article 2(i) and (j) of that directive be 
interpreted as precluding national legislation, such as that at issue in the main 
proceedings, under which persons who have made intra-Community receipts of 
lubricating oils as defined in point 3.4.20 of Annex A to Regulation (EC) 
No 1099/2008 (or importers of such lubricating oils) can be obliged to establish 
emergency stocks? 
2. Having regard to the objective of Council Directive 2009/119/EC of 
14 September 2009 imposing an obligation on Member States to maintain 
minimum stocks of crude oil and/or petroleum products, and in the light of the 
principle of proportionality under Article 52(1) of the Charter of Fundamental 
Rights of the European Union, in conjunction with Article 17 thereof, must 
recital 33 and Article 1, Article 3, Article 8 and Article 2(i) and (j) of that 
directive be interpreted as precluding national legislation, such as that at issue in 
the main proceedings, under which the types of products in respect of which 
emergency stocks must be established and maintained are limited to some of the 
types of products in Article 2(i) of that directive, in conjunction with Chapter 3.4 
of Annex A to Regulation (EC) No 1099/2008? 
3. Having regard to the objective of Council Directive 2009/119/EC of 
14 September 2009 imposing an obligation on Member States to maintain 
minimum stocks of crude oil and/or petroleum products, and in the light of the 
principle of proportionality under Article 52(1) of the Charter of Fundamental 
Rights of the European Union, in conjunction with Article 17 thereof, must 
recital 33 and Article 1, Article 3, Article 8 and Article 2(i) and (j) of that 
directive be interpreted as precluding national legislation, such as that at issue in 
the main proceedings, under which the making by a person of intra-Community 
receipts or imports of one of the types of products referred to in Article 2(i) of that 
directive, in conjunction with Chapter 3.4 of Annex A to Regulation (EC) 
No 1099/2008, entails an obligation on the part of that person to establish and 
maintain emergency stocks of another, different type of product? 
4. Having regard to the objective of Council Directive 2009/119/EC of 
14 September 2009 imposing an obligation on Member States to maintain 
minimum stocks of crude oil and/or petroleum products, and in the light of the 
principle of proportionality under Article 52(1) of the Charter of Fundamental 
Rights of the European Union, in conjunction with Article 17 thereof, must 
recital 33 and Article 1, Article 3, Article 8 and Article 2(i) and (j) of that 
directive be interpreted as precluding national legislation, such as that at issue in 
the main proceedings, under which a person is obliged to establish and maintain 
stocks of a product which he or she does not use in the course of his or her 
economic activity and which is not connected with that activity, whereby that 
obligation also entails a significant financial burden (leading, in practice, to the 
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impossibility of compliance), since the person neither possesses the product nor 
imports it and/or holds stocks of it? 
5. If any of those questions is answered in the negative: Having regard to the 
objective of Council Directive 2009/119/EC of 14 September 2009 imposing an 
obligation on Member States to maintain minimum stocks of crude oil and/or 
petroleum products, and in the light of the principle of proportionality under 
Article 52(1) of the Charter of Fundamental Rights of the European Union, in 
conjunction with Article 17 thereof, must recital 33 and Article 1, Article 3, 
Article 8 and Article 2(i) and (j) of that directive be interpreted as meaning that a 
person who has made intra-Community receipts or imports of a particular type of 
product can only be obliged to establish and maintain emergency stocks of the 
same type of product which was the subject of the intra-Community 
receipts/imports? 
Provisions of European Union law and case-law relied on 
Article 122 TFEU 
Council Directive 2009/119/EC of 14 September 2009 imposing an obligation on 
Member States to maintain minimum stocks of crude oil and/or petroleum 
products (‘the Directive’), recital 33 and Article 1, Article 2(i) and (j), Article 3 
and Article 8 
Regulation (EC) No 1099/2008 of the European Parliament and of the Council of 
22 October 2008 on energy statistics, Article 2(d), point 4.1 of Chapter 4 of 
Annex B, point 3.1 of Chapter 3 of Annex C 
Charter of Fundamental Rights of the European Union, Article 17(1), 
Article 51(1) and (2), Article 52(1) and (2) 
Explanations relating to the Charter of Fundamental Rights, explanation on 
Article 17 
As far as the referring court is aware, the provisions of the Directive have not been 
the subject of interpretation by the Court of Justice of the European Union. 
Provisions of national law relied on 
Zakon za zapasite ot neft i neftoprodukti (Law on stocks of crude oil and 
petroleum products; ‘the ZZNN’), Article 1(1), Article 2(1) and (4), Article 3(4), 
Article 8(1) to (5), Article 12(1), (2), (4) and (11), Article 14(1) to (6), 
Article 17(1) to (4), Article 21(1), (11), (14) and (15), Article 23(1) and (2), 
Article 30(1) to (3), Article 38(1); Dopalnitelni razporedbi na ZZNN (Additional 
provisions for the ZZNN), Paragraph 1, points 8 to 12, and Paragraph 2, points 1 
and 2 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-395/22 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 In 2020, Trade Express-L OOD (‘the company’) declared intra-Community 
acquisitions of 89.6 tonnes of lubricating oils in packs having a net weight 
exceeding 1 litre/kilogram and with the following tariff codes according to the 
Combined Nomenclature: 2710 19 81, 2710 19 83, 2710 19 85, 2710 19 87, 2710 
19 99 and 3403 19 80 (point 3.4.20 of Chapter 3.4 of Annex A to Regulation 
[(EC)] No 1099/2008). The oils imported by the company were intended for sale. 
There is no evidence that, in 2020, the company was economically active with any 
other type of product as defined in Chapter 3.4 of Annex A to Regulation (EC) 
No 1099/2008 or with fuel oil. 
2 In connection with the abovementioned intra-Community acquisitions of 
lubricating oils in 2020, the company was served on 7 May 2021 with the 
contested order of the Vice-President of the State Agency ‘State Reserves and 
Wartime Stocks’ of 29 April 2021 concerning the establishment of emergency 
stocks (‘the order’), by which Trade Express-L OOD was ordered, on the basis of 
Articles 12 and 23 of the ZZNN, to establish and maintain or to organise and 
finance, at its own expense and using its own resources, the emergency stocks of 
heavy fuel oil specified in Article 2(1) of the ZZNN, in the amount of 15.947 
tonnes (fifteen tonnes and nine hundred and forty-seven kilograms), for a period 
of one year, namely from 1 July 2021 to 30 June 2022. 
3 On 20 May 2021, the company brought an action against the order, thereby 
instituting the court proceedings before the Administrativen sad Varna 
(Administrative Court, Varna, Bulgaria). The company takes the view that it is not 
obliged to establish or maintain the emergency stocks of heavy fuel oil which are 
specified in the order, and it seeks the annulment of the order on the ground that it 
is unlawful for a number of reasons. In the application initiating proceedings, the 
unlawfulness of the order is based, inter alia, on the grounds that the company was 
designated as an obliged party, that it lacks the financial capacity to purchase the 
quantity of heavy fuel oil specified in the order, that it lacks the facilities for 
storing heavy fuel oil and that it is impossible for it to comply with the 
stockholding obligation within the specified period. 
4 The goods which were the subject of intra-Community acquisitions by the 
company in 2021 are identified as follows in the customs documents, with TARIC 
codes (according to the EU Combined Nomenclature): 
– 2710 19 81 – Motor oils, compressor lube oils, turbine lube oils 
– 2710 19 83 – Liquids for hydraulic purposes 
– 2710 19 85 – White oils, liquid paraffin 
– 2710 19 87 – Gear oils and reductor oils 
– 2710 19 99 – Other lubricating oils and other oils 
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– 3403 19 80 – Other.  
5 In the expert chemical report commissioned by the court, the expert, referring to 
additional notes 2(d) and (f) of the Explanatory Notes to Chapter 27 of the 
Combined Nomenclature and to point 4.1 of Chapter 3.4 of Annex B to 
Regulation (EC) No 1099/2008 of the European Parliament and of the Council of 
22 October 2008 on energy statistics, concludes that the products imported by the 
company, which are lubricants within the meaning of point 3.4.20 of Chapter 3.4 
of Annex A to Regulation (EC) No 1099/2008, are at the same time fuel oils and 
energy products within the meaning of Article 2(d) of Regulation (EC) 
No 1099/2008. At the hearing, the expert expressly stated that the products 
imported by the company in 2020 are not primary products, but stand-alone and 
finished products which are ready for use and are neither blended with nor 
converted into fuel. 
6 The company’s activities do not involve any dealings in heavy fuel oils, gas oils, 
motor gasoline and/or diesel, and that is the case in respect of both 2020 and the 
present time. The company does not possess the emergency stock of heavy fuel oil 
specified in the order; it would either have to purchase it or have to delegate the 
obligation to another economic operator against payment. 
7 The company does not have a storage facility for emergency stocks of crude oil 
and petroleum products which is registered in accordance with Article 38 of the 
ZZNN, in particular for the abovementioned petroleum products, and it therefore 
does not have the status of ‘stockholder’ within the meaning of the ZZNN. 
8 The establishment and maintenance by the company itself of emergency stocks of 
heavy fuel oil in the quantity specified in the order entails a significant financial 
burden for it and a need for technological time for implementing the procedure for 
the registration of a petroleum product storage facility. This was also established 
by an expert in a court-commissioned expert economic report and by the 
statements he made at the hearing. 
9 According to the expert’s report obtained in the case, the quantities of the 
emergency stocks of heavy fuel oil to be established and maintained by the 
company in accordance with the order were calculated according to the methods 
prescribed in the Directive and the ZZNN. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 The order contested before the referring court obliged the company, which had 
made intra-Community receipts of lubricating oils in 2020, to establish and 
maintain emergency stocks of heavy fuel oil in the amount of 15.947 tonnes for 
the period from 1 July 2021 to 30 June 2022. Thus, an economic operator 
importing one specific type of petroleum product was obliged to procure and store 
another type of petroleum product. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-395/22 
 
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11 An interpretation of EU law is required to clarify the extent to which Member 
States have the power to determine which types of products must be stocked and 
the extent of their powers vis-à-vis economic operators, and, in particular, the 
precise meaning of recital 33, Article 3, Article 8 and Article 2(i) and (j) of the 
Directive in the light of the objectives of the Directive and the principles 
governing the application of EU law, in particular the principle of proportionality. 
The referring court takes the view that, on the basis of the interpretation of the 
Directive given by the Court of Justice of the European Union, it will be possible 
to assess whether the national law transposes the directive correctly and whether, 
accordingly, the company can be made subject to an obligation to hold stocks of 
heavy fuel oil specifically. 
12 Article 3 of the Directive, in conjunction with Article 2(j) thereof, sets out the 
result to be achieved by Member States with regard to emergency stocks, namely 
to ensure that oil stocks are maintained in specified quantities at all times. 
According to Article 2(i) of the Directive, oil stocks are stocks of the energy 
products listed in Chapter 3.4 of Annex A to Regulation (EC) No 1099/2008. 
Chapter 3.4 of that annex is entitled ‘Oil (Crude oil and petroleum products)’ and 
contains 24 sub-groups. Accordingly, the Directive is aimed at the stockpiling of 
all – and not only some of – the products listed in Chapter 3.4 of that annex. The 
national law – Article 2(1) of the ZZNN – does not provide for the stockpiling of 
all the products listed in Chapter 3.4 of the annex, but only of crude oil and four 
other petroleum products: 1. motor gasoline; 2. gas oils, kerosene-type jet fuels 
and diesel; 3. heavy fuel oil; 4. liquefied petroleum gas. 
13 An interpretation of the relevant provisions of EU law is important in this case in 
order to determine whether the Directive must be interpreted as precluding 
national legislation which 
– determines that the stockholding obligation in respect of emergency stocks 
of energy products also applies to persons who import the lubricating oils listed in 
Chapter 3.4 of Annex A to Regulation (EC) No 1099/2008 for trade purposes 
only, or whether lubricating oils are ‘energy products’ within the meaning of 
Article 2(i) of the Directive, having regard also to the definition of ‘energy 
products’ in Article 2(d) of Regulation (EC) No 1099/2008; 
– limits the types of product in respect of which emergency stocks are to be 
established. 
14 Under the Directive, Member States are given the possibility, as a measure to 
fulfil their stockholding obligation, to impose obligations on economic operators 
(that is to say legal persons governed by private law) in that respect, thus 
including obligations to establish and maintain emergency stocks. However, in 
imposing such obligations, Member States may not depart from the principles and 
the objective of the Directive as described in recital 33 of the Directive, namely 
‘to maintain a high level of security of oil supply in the Community through 
reliable and transparent mechanisms based on solidarity amongst Member States 
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while complying with the internal market and competition rules’. On a systematic 
interpretation of that objective and the permitted measure to impose obligations on 
economic operators (legal persons governed by private law), and in the light of the 
principle of proportionality under Article 52(1) of the Charter of Fundamental 
Rights of the European Union, and also having regard to the facts of the case, the 
referring court has doubts as to whether the Directive must be interpreted as 
meaning that a stockholding obligation may be imposed on an economic operator 
in respect only of an energy product with which it has actually carried out an 
economic activity during the relevant period and from which, in particular, its 
status as a person subject to a stockholding obligation could be inferred. 
15 The question that arises for the referring court is whether it would be contrary to 
the objectives and spirit of the Directive and to the principle of proportionality 
under the Charter of Fundamental Rights of the European Union to oblige an 
economic operator to organise a stock of an energy product with which it does not 
or has not carried out any activities, which would naturally oblige the economic 
operator to purchase or borrow the required quantities (to delegate part of the 
obligation) and to store them in the prescribed manner (in warehouses approved 
for that purpose). Such an approach gives rise to a primarily financial burden for 
the economic operator subject to the obligation (payment of the purchase price, 
purchase or rental of a storage facility for the product, insurance pursuant to the 
ZZNN, payment of duties in accordance with Bulgarian tax legislation, and so 
forth, and also in the case where the obligation is delegated, in so far as the option 
of such delegation is available to the obliged party in the first place) and affects 
the internal market and competition rules, both in relation to the petroleum 
product traded by the economic operator and in relation to the petroleum product 
in respect of which stocks are to be held. 
16 The purpose of the Directive is clearly not to impose financial (parafiscal) 
obligations on certain entities governed by private law. On the contrary, the 
Directive is based on the principle that the authorisation of such interference with 
the legal rights of entities governed by private law is linked precisely to their 
ability to fulfil in kind the obligations imposed on them. In this way (and in 
accordance with the objective of the Directive, the principle of proportionality and 
the internal market and competition rules), an appropriate balance would be 
achieved between public interests (under EU law) and private interests, since the 
fulfilment in kind of the obligation to hold stocks of a given product by persons 
who in any event carry out an economic activity with that product would not 
present any particular difficulties for those persons. In that respect, the 
interference with the rights of the persons concerned would be far less intense and 
would be in line with the requirements of recital 33 of the Directive, in accordance 
with which such interference must take place through a transparent mechanism, 
while complying with the internal market and competition rules. Accordingly, it is 
far less burdensome for a person who possesses and operates with a certain 
product to store some of it as an emergency stock than it is for a person who 
would first be required to buy/borrow and store certain quantities of a product 
because that product does not form part of his or her economic activities, that is to 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-395/22 
 
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say, falls outside the scope of his or her activities. This would, in essence, only 
create an additional financial burden for the economic operator, which is neither a 
statutory tax nor a fee for a certain service rendered in return, and it is also not 
based on the activity of the economic operator itself (for example, in the present 
case, an economic operator which trades in lubricating oils is obliged to establish 
a stock of heavy fuel oil). 
17 It must be clarified whether the Directive must be interpreted as precluding 
national legislation, such as the Bulgarian legislation, which provides that a 
person is obliged to establish emergency stocks of one type of energy product 
because he or she has carried out an economic activity (import) with another type 
of petroleum product, such as lubricating oils. 
18 It must be clarified whether national legislation, such as the Bulgarian legislation, 
under which importers of lubricating oils can be obliged to establish emergency 
stocks, is compatible with the Directive and whether lubricating oils are ‘energy 
products’ within the meaning of Article 2(d) of Regulation (EC) No 1099/2008 in 
the first place, notwithstanding the fact that they are listed as petroleum products 
in Annex A to Regulation (EC) No 1099/2008. 
19 Under the national law, persons who have imported or brought into the territory of 
the country on an intra-Community basis any of the energy products listed in the 
annex during the calendar year in question are obliged to establish emergency 
stocks. At the same time, contrary to the abovementioned provisions of the 
Directive, the national law limits the types of products in respect of which stocks 
are to be established to those referred to in Article 2(1) of the ZZNN (crude oil 
and four types of petroleum products). Accordingly, Bulgarian legislation 
provides that a person who has imported energy products listed in the annex 
during the previous calendar year is obliged to establish emergency stocks of one 
of the products listed in Article 2(1) of the ZZNN. 
20 The national law does not take into account which type of energy product the 
person concerned has imported and whether that type is among the products in 
respect of which stocks are to be established. By limiting the types of products in 
respect of which stocks are to be established and obliging private entities to 
establish such emergency stocks, the national law does not ensure correspondence 
between the type of products imported by the person subject to the obligation and 
the type of product in respect of which stocks are to be established. In addition, 
that law does not take into account whether the person subject to the obligation 
uses the product in respect of which stocks are to be established in the course of 
his or her business activities, whether it can provide the required quantities of that 
product, what administrative requirements must be fulfilled and what financial 
means would have to be used to achieve that objective and how this would affect 
the financial situation and competitiveness of that person. 
21 In particular, Article 12(11) of the ZZNN provides that the import, and/or supply 
by way of intra-Community receipts, of lubricating oils (including base oils) 
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triggers the obligation to establish a stock of heavy fuel oil. This is also the 
situation in the present case – the company had made intra-Community receipts of 
lubricating oils (including base oils) and was therefore obliged to establish a stock 
of heavy fuel oil without being permitted to establish a stock of lubricating oils. 
22 Consequently, in order to fulfil the obligation imposed on it, the company must 
procure heavy fuel oil, which it does not possess. It also does not have the 
necessary authorisation as a warehouse keeper to be able lawfully to store that fuel 
independently (without paying a third-party warehouse keeper). Furthermore, 
under the ZZNN, the company is not entitled to request that the quantities of 
heavy fuel oil which it is obliged to stock be replaced by lubricating oils. 
23 The list of petroleum products in respect of which stocks are to be established 
under Article 2(1) under the ZZNN is much shorter than the list of products in 
Chapter 3.4 of the annex, to which Article 2(i) of the Directive refers. 
24 The referring court takes the view that it must clarified whether the Directive must 
be interpreted as precluding national legislation, such as the Bulgarian legislation, 
under which a person is obliged to establish emergency stocks of a specific type of 
product because he or she has carried out an economic activity (import) with 
another type of petroleum product. 
25 The referring court has doubts as to whether the national legislation is contrary to 
the Directive, that is to say, whether the Directive has been correctly transposed, 
which would have a bearing on the lawfulness of the contested administrative 
act – the order. 
26 A finding of such a conflict between the provisions of the Directive and the 
national law would affect the lawfulness of the contested order. In particular, it 
would have to be established in such a case that the order was issued on the basis 
of a national law which runs counter to, or does not correctly transpose, the 
Directive, which is an act of EU law. This would have the consequence that the 
individual administrative act in question would have to be annulled by way of the 
action, since maintaining it would be incompatible with EU law. This is also in 
line with the reasoning in paragraphs 21 and 2 of the judgment in Simmenthal 
(C-106/77). An interpretation of the Directive in the present case would provide 
clarity as to whether or not there is a conflict. 
27 According to the third paragraph of Article 288 TFEU, a directive is to be binding, 
as to the result to be achieved, upon each Member State to which it is addressed, 
but is to leave to the national authorities the choice of form and methods. 
Directives are addressed to the Member States. They must adopt implementing 
measures which produce legal effect at national level. There is no doubt that, if a 
directive is not transposed within the prescribed period, or is transposed 
inadequately, it will not achieve the objective which is binding on the Member 
States. In order to avoid that outcome, the national administrative and judicial 
authorities may directly apply the provision of the directive which has not been 
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properly transposed, while respecting the principle of sincere cooperation under 
Article 4(3) TEU. However, this is subject to the requirement that the rule is clear, 
precise and unconditional, that is to say, it does not leave any discretion to the 
Member State. 
28 The interpretation of the Directive and of the provisions of the Directive referred 
to, as sought by the referring court, is intended to bring about the necessary clarity 
and unconditionality, that is to say, to establish what powers the national 
authorities have in determining stocks on an individual basis in order to achieve 
the relevant objectives, and thus the extent to which obligations can be imposed 
on economic operators. 
29 However, a request for a preliminary ruling is required to determine the precise 
meaning and content of the Directive, since, under Article 267 TFEU, the 
interpretation of legal acts of EU law comes within the competence of the Court of 
Justice of the European Union. 
30 The referring court takes the view that an interpretation of the Directive will 
enable it, in the present case, to rule correctly on the dispute in so far as there are 
doubts as to the correct interpretation of the Directive.