Judgment — ECLI:EU:C:2009:751
Date: 2009-12-03
Language of the case: French
Court formation: Sixth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Energy;Right of establishment;Approximation of laws;Freedom to provide services
Concepts: Energy
Procedure: Action for failure to fulfil obligations - successful
Origin: Belgium

Summary of the Judgment 1. Approximation of laws – Measures for approximation – Common rules for the internal market in natural gas – Directive 2003/55 (Art. 249, third para., EC; European Parliament and Council Directive 2003/55, Art. 22(3)(d)) 2. Approximation of laws – Measures for approximation – Common rules for the internal market in natural gas – Directive 2003/55 (Art. 249, third para., EC; European Parliament and Council Directive 2003/55, Art. 22(3)(e) and (4)) 1. Since Article 22(3)(d) of Directive 2003/55 concerning common rules for the internal market in natural gas requires that all decisions concerning exemptions granted to the operator be published, the general principles of the law of a Member State concerning the publication of measures, according to which all measures which affect a large number of persons must be published, cannot be regarded as ensuring the correct and complete transposition of that provision of the Directive, if that Member State fails to adduce any evidence which proves precisely and with certainty that exemption decisions are always considered to be of general public importance and therefore always published. The existence of general principles of constitutional or administrative law may render superfluous transposition by specific legislative or regulatory measures, provided, however, that those principles actually ensure the full application of the Directive by the national authorities and that, where the relevant provision of the Directive seeks to create rights for individuals, the legal situation arising from those principles is sufficiently precise and clear and that the persons concerned are put in a position to know the full extent of their rights and, where appropriate, to be able to rely on them before the national courts. (see paras 41-42) 2. The effect of the third paragraph of Article 249 EC is that Community directives must be implemented by appropriate measures taken by the Member States. The fact that, in specific circumstances, where the implementing measures required have not been adopted or measures have been adopted which are not consistent with a directive, the persons affected thereby are entitled to rely in law on a directive as against a defaulting Member State cannot justify a Member State absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive. Similarly, and a fortiori, the fact that certain provisions of the Directive in question are directly applicable in the national legal system is not grounds for relieving the Member States of their obligations to transpose Community law. Thus, a Member State which fails to transpose Article 22(3)(e) concerning the requirement to consult with the Member States concerned beforehand in the case of an interconnector, and which merely provides for requests for an exemption to be communicated to the Commission, whereas Article 22(4) imposes the obligation to notify to the Commission the final exemption decision together with all the relevant information with respect thereto, fails to fulfil its obligations under Article 22(3)(e) and (4) of Directive 2003/55 concerning common rules for the internal market in natural gas. (see paras 44-46)