Opinion of the Advocate General — ECLI:EU:C:2018:709
Date: 2018-09-13
Language of the case: Italian
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary — Judgment of the Court (First Chamber), 28 November 2018 1. Approximation of laws — Measures of approximation — Common rules for the internal market in electricity — Directive 2009/72 — Scope — Distribution systems — Definition — Criteria (European Parliament and Council Directive 2009/72, Art. 2(5) and (19)) 2. Approximation of laws — Measures of approximation — Common rules for the internal market in electricity — Directive 2009/72 — Scope — Distribution systems —Definition — Systems put in place for the purposes of self-consumption, operated by a private person and connected to a limited number of generation and consumption units — Included (European Parliament and Council Directive 2009/72, Arts 2(5) and 28(1)) 3. Approximation of laws — Measures of approximation — Common rules for the internal market in electricity — Directive 2009/72 — Closed distribution systems — Possibility of exemption from certain obligations laid down by the directive — Conditions (European Parliament and Council Directive 2009/72, Arts 26(4) and 28) 4. Approximation of laws — Measures of approximation — Common rules for the internal market in electricity — Directive 2009/72 — Closed distribution systems –National legislation exempting those systems from the obligation to provide third-party access — Not permissible (European Parliament and Council Directive 2009/72, Art. 28(1) and 32(1)) 5. Approximation of laws — Measures of approximation — Common rules for the internal market in electricity — Directive 2009/72 — Closed distribution systems –Fixing of dispatching charges — National legislation providing for calculation on the basis of the electricity exchanged with the system by each of its users — Not permissible — Conditions (European Parliament and Council Directive 2009/72, Arts 15(7) and 37(6)(b)) 1. See the text of the decision. (see paras 28-31) 2. Article 2(5) and Article 28(1) of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC must be interpreted as meaning that systems, such as those at issue in the main proceedings, put in place for the purposes of self-consumption before the entry into force of that directive and operated by a private person, to which a limited number of generation and consumption units are connected, and which in turn are connected to the public network, constitute distribution systems falling within the scope of that directive. (see para. 38, operative part 1) 3. Article 28 of Directive 2009/72 must be interpreted as meaning that systems, such as those at issue in the main proceedings, which have been classified by a Member State as closed distribution systems within the meaning of paragraph 1 of that article, may, in that capacity, only be exempted by that Member State from the requirements laid down in paragraph 2 of that article, without prejudice to the fact that those systems are otherwise eligible for other exemptions provided for in that directive, in particular the exemption set out in Article 26(4) thereof, if they meet the conditions laid down therein, which it is for the referring court to ascertain. In any event, that Member State may not include those systems in a separate category of distribution systems in view of granting them exemptions not provided for in that directive. (see para. 51, operative part 2) 4. Article 32(1) of Directive 2009/72 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that closed distribution systems within the meaning of Article 28(1) of that directive are not subject to the obligation to provide third-party access, but must provide access only to third parties falling within the category of users that may be connected to those systems, those users having a right of access to the public network. (see para. 61, operative part 3) 5. Article 15(7) and Article 37(6)(b) of Directive 2009/72 must be interpreted as precluding, in the absence of any objective justification, national legislation such as that at issue in the main proceedings which provides that dispatching charges for the users of a closed distribution system are calculated on the basis of the electricity exchanged with that system by each of its users through their connection point to that system, should the users of a closed distribution system prove not to be in the same situation as the other users of the public network and should the provider of the dispatching service for the public network bear the limited costs with regard to those users of a closed distribution system, which it is for the referring court to ascertain. (see para. 77, operative part 4)