Opinion of the Advocate General — ECLI:EU:C:2014:2325
Date: 2014-10-23
Language of the case: Hungarian
Subject matter: Energy;Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Hungary

Summary — Judgment of the Court (Fourth Chamber), 19 March 2015 1. Approximation of laws — Measures of approximation — Common rules for the internal market in natural gas — Directive 2009/73 — Scope — Action directed against a decision of the regulatory authority adopted prior to the transposition deadline — Not included Directive 2009/73 of the European Parliament and of the Council, Art. 41(17)) 2. Approximation of laws — Measures of approximation — Conditions for access to the natural gas transmission networks — Regulation No 1775/2005 — Principles of capacity allocation mechanisms and congestion management procedures — Right to bring an action against a decision of the national regulatory authority — National legislation not making it possible to recognise that an operator has locus standi for the purpose of bringing an action against a decision of that regulatory authority relating to the network code — Infringement of the right to effective judicial protection (Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Regulation No 1775/2005, Arts 2(1) point 11, and 5, and Annex) 1. Directive 2009/73 concerning common rules for the internal market in natural gas and repealing Directive 2003/55, the period allowed for whose transposition expired on 3 March 2011 and, in particular, the new provisions introduced in Article 41(17) thereof, must be interpreted as not applying to an action against a decision of a regulatory authority adopted before the expiry of that period allowed for transposition and which was still pending on that date. (see para. 35, operative part 1) 2. Article 5 of Regulation No 1775/2005 on conditions for access to the natural gas transmission networks, read in conjunction with the Annex to that regulation, and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation concerning the exercise of rights of action before the court or tribunal having jurisdiction to review the lawfulness of acts of a regulatory authority, which does not make it possible to confer on a network user locus standi for the purpose of bringing an action against a decision of that authority relating to the gas network code. In the light of the wording of Article 2(1) and (11) of Regulation No 1775/2005, it is irrelevant that such an operator has in fact concluded a contract with the network manager in order to benefit from the status of network user, in so far as that status covers all potential customers of the network manager. The principles set out in Article 5 of that regulation, read in conjunction with the Annex thereto, must be interpreted as constituting protective measures adopted in the interests of users wishing to gain access to the network and therefore capable of conferring rights on them. Therefore, such an operator must be regarded as potentially having its rights infringed by a decision of the regulatory authority which amends the rules of the network code relating to capacity allocation and congestion management. (see paras 45, 46, 48, 51, operative part 2)