Judgment;Abstract — ECLI:EU:C:2025:144
Date: 2025-03-06
Language of the case: Finnish
Court formation: Fifth Chamber
Subject matter: Energy
Procedure: Reference for a preliminary ruling
Origin: Finland

Translation C-48/23 – 1 
Case C-48/23 
Request for a preliminary ruling 
Date lodged: 
1 February 2023 
Referring court:  
Markkinaoikeus (Finland) 
Date of the decision to refer:  
1 February 2023 
Applicants:  
Alajärven Sähkö Oy and Others 
Elenia Verkko Oyj 
Defendant:  
Energiavirasto 
  
MARKKINAOIKEUS 
(Market Court, Finland) 
ORDER … [NOT 
TRANSLATED] 
 1 February 2023  
 … [NOT TRANSLATED]  
 
Applicants Alajärven Sähkö Oy and joined parties … [NOT 
TRANSLATED] 
Elenia Verkko Oyj … [NOT TRANSLATED] 
Authority Energiavirasto 
Subject matter Electricity market matter; Request to the Court of Justice of 
the European Union for a preliminary ruling under 
Article 267 of the Treaty on the Functioning of the European 
Union 
EN 
REQUEST FOR A PRELIMINARY RULING OF 1. 2. 2023 – CASE C-48/23 
 
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Decision of the Market Court 
Subject matter of the dispute 
1 This request for a preliminary ruling concerns the interpretation of Article 57(4) 
and (5) and Article 59 of Directive (EU) 2019/944 of the European Parliament and 
of the Council of 5 June 2019 on common rules for the internal market for 
electricity and amending Directive 2012/27/EU (‘the Electricity Directive’). 
Relevant facts 
The background to the case 
2 By decisions of 30 November 2015, Energiavirasto (Energy Authority, Finland) 
established monitoring methods for the fourth monitoring period from 1 January 
2016 to 31 December 2019 and for the fifth monitoring period from 1 January 
2020 to 31 December 2023, concerning the determination of the return on system 
operations for system operators and the charges to be levied for transmission 
services. 
3 By decisions of 15 December 2021, the Energy Authority amended its 
abovementioned decisions of 30 November 2015 and changed the monitoring 
methods previously set for the monitoring period from 1 January 2020 to 
31 December 2023. [Or. 2] 
4 The abovementioned decisions of 15 December 2021 stated that the matter had 
been raised by the Energy Authority of its own motion following the entry into 
force, on 1 August 2021, of an amendment to the Sähkömarkkinalaki (Law on the 
electricity market), set down in Law No 730/2021. 
Proceedings before the Market Court 
5 Alajärven Sähkö Oy, with its joined parties and Elenia Verkko Oyj (also, 
collectively, ‘the applicants’), requested, by actions brought on 17 January 2022 
and 19 January 2022, inter alia, that the Market Court annul the decisions of the 
Energy Authority in so far as the monitoring methods had been amended by 
updating the unit prices to be applied in calculating the return and by removing the 
alternative calculation method applicable in determining the risk-free interest rate. 
6 In their action, the applicants submitted, inter alia, that the Energy Authority had 
not adopted the contested decisions autonomously, as an independent regulatory 
authority, in the manner required by Article 57 of the Electricity Directive. 
7 In its response, the Energy Authority requested that the Market Court dismiss the 
actions. 
8 In its response, the Energy Authority argued, inter alia, that the background to the 
amendment to the monitoring methods was in itself amendments to the Law on 
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the electricity market and the Laki sähkö- ja maakaasumarkkinoiden valvonnasta 
(Law on the supervision of the electricity and natural gas markets, ‘the Law on 
supervision’). However, the national legislature had concluded that those 
amendments satisfied the requirements of EU law relating to the independence of 
the regulatory authority. According to the Energy Authority, the amendments in 
question were merely rules equating to general guidelines. 
Provisions of national law relied on 
9 Under Paragraph 10(1), point 1, of the Law on supervision, the Energy Authority 
must, by means of a decision (determination decision), fix binding methods for 
system operators, main system operators responsible for the system and 
transmission system operators responsible for the system to determine the return 
on system operations for system operators and the charges to be levied for 
transmission services during a monitoring period prior to their introduction. 
10 In accordance with subparagraph 2 of that paragraph, the decision determining the 
methods to be applied in pricing may contain orders concerning, inter alia, the 
principles for the valuation of capital linked to system operations or a service 
(point 1), the manner of determining the permitted return on capital linked to 
system operations or a service or the permitted return on a service (point 2), the 
manner of determining the performance of system operations or a service and any 
adjustment to the profit and loss account and balance sheet required thereby 
(point 3), as well as objectives that incentivise increasing the efficiency of system 
operations, promoting market integration, improving system security and 
promoting related research activities, developing the system and providing system 
services that promote measures to improve the energy efficiency [Or. 3] of system 
users, and the manner in which those objectives are defined and the methods by 
which they are applied in pricing (point 4). 
11 Under Paragraph 13(1), point 2, of the Law on supervision, the Energy Authority 
may amend a determination decision by adopting a new decision if the 
proceedings in respect of that decision were initiated by the Energy Authority of 
its own motion or at the request of the addressee of the determination decision. A 
determination decision that is valid for a fixed period can be amended by the 
Energy Authority of its own motion or on the initiative of the addressee of the 
decision and a determination decision that is valid for an indefinite period can be 
amended by the Energy Authority of its own motion if the amendment is based on 
a change in legislation. 
12 Under Paragraph 19(1) of the Law on the electricity market, in order to ensure that 
users of their systems have access to electricity of sufficient quality, system 
operators must maintain, operate and develop their electricity systems and 
connections to other systems in accordance with the requirements relating to the 
operation of electricity systems and with the reasonable needs of system users. 
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13 Under Paragraph 19(2), which entered into force due to an amendment to the Law 
on the electricity market introduced by Law No 730/2021, an electricity system 
must, inter alia, be designed, constructed and maintained in such a way that it 
meets the quality requirements for the operation of electricity systems, that the 
technical quality of the transmission and distribution of electricity is good in all 
other respects (point 1) and that the system operator can provide transmission and 
distribution services to system users in a cost-effective manner (point 6). 
14 Under Paragraph 52(1) of the Law on the electricity market, which entered into 
force due to an amendment to the Law on the electricity market introduced by 
Law No 730/2021, the development of a distribution system operator’s 
distribution system must be based on an open distribution system development 
plan including, inter alia: a plan on the key investments in the distribution system 
necessary to maintain the transmission capacity of the distribution system and to 
connect new electricity generation capacities and new loads to the distribution 
system over the following ten years, including charging stations for electric cars 
and shore-side electricity requirements for maritime and inland vessels (point 1), 
the implementation of which will result in the requirements provided for in 
Paragraphs 51 and 119 of that law being met and maintained in the distribution 
system (point 2), a plan for the possible use of flexible electricity consumption, 
electricity storage facilities, energy efficiency measures of the distribution system 
operator and other resources as alternatives to the expansion of the transmission 
capacity of the distribution system (point 3) and appropriate comparisons of the 
cost effectiveness of measures for the development of the distribution system 
(point 4). 
15 Paragraph 51 of the Law on the electricity market contains more detailed 
provisions on the quality requirements applicable to the operation of a distribution 
system. 
16 Paragraph 119 of the Law on the electricity market, as amended by an amendment 
to the Law on the electricity market introduced by Law No 730/2021, contains a 
transitional provision relating to the operational reliability of distribution systems. 
[Or. 4] 
17 In the travaux préparatoires relating to Law No 7[3]0/2021 amending the Law on 
the electricity market (Government bill HE 265/2020 vp. pp. 61 and 62), the 
detailed justifications for amending the provision of Paragraph 119 state, in 
particular, that the extension of the deadline for complying with the requirements 
for operational reliability of distribution systems significantly changes the 
regulatory environment of distribution system operators. The governance effects 
of the provisions in subparagraphs 2 and 3 of that paragraph should be on a par 
with other forms of system supervision. Therefore, due to the proposed 
amendments to those provisions, the methods for monitoring the setting of system 
charges should also take into account the extension of the deadline for complying 
with the security of supply requirements and the associated changes to the 
investments of distribution system operators and their financing. The impact of the 
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change in the regulatory environment should, for example, be taken into account 
in various elements involved in the methods used to calculate the distribution 
system operators’ tariffs, which are linked to the financing of investments and 
create incentives for investments. 
Provisions of European Union law relied on 
18 In accordance with Article 57(1) of the Electricity Directive, each Member State 
must designate a single regulatory authority at national level. 
19 In accordance with paragraph 4 of that article, Member States must guarantee the 
independence of the regulatory authority and ensure that it exercises its powers 
impartially and transparently. For that purpose, Member States must ensure that, 
when carrying out the regulatory tasks conferred upon it by that directive and 
related legislation, the regulatory authority: 
(a) is legally distinct and functionally independent from other public or private 
entities; 
(b) ensures that its staff and the persons responsible for its management: 
(i) act independently from any market interest; and 
(ii) do not seek or take direct instructions from any government or other 
public or private entity when carrying out the regulatory tasks. That 
requirement is without prejudice to close cooperation, as appropriate, with 
other relevant national authorities or to general policy guidelines issued by 
the government not related to the regulatory powers and duties under 
Article 59. 
20 In accordance with paragraph 5 of that article, in order to protect the independence 
of the regulatory authority, Member States must in particular ensure that the 
regulatory authority can take autonomous decisions, independently from any 
political body (subparagraph (a)). 
21 In accordance with Article 59(1) of the Electricity Directive, the regulatory 
authority is responsible, inter alia, for fixing or approving, in accordance with 
transparent criteria, transmission or distribution tariffs or their methodologies, or 
both (subparagraph (a)). [Or. 5] 
22 In accordance with recital 80 of the Electricity Directive, regulatory authorities 
need to be able to take decisions in relation to all relevant regulatory issues if the 
internal market for electricity is to function properly, and need to be fully 
independent from any other public or private interests. This precludes neither 
judicial review nor parliamentary supervision in accordance with the 
constitutional laws of the Member States. 
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23 According to recital 82 of that directive, regulatory authorities should fix or 
approve individual grid tariffs for transmission and distribution networks or a 
methodology, or both. In either case, the independence of the regulatory 
authorities in setting network tariffs pursuant to point (b)(ii) of Article 57(4) 
should be preserved. 
24 In accordance with recital 87 of that directive, the Electricity Directive and 
Directive 2009/73/EC do not deprive Member States of the possibility of 
establishing and issuing their national energy policy. It follows that, depending on 
a Member State’s constitutional arrangements, it might be within a Member 
State’s competence to determine the policy framework in which the regulatory 
authorities are to operate, for example concerning security of supply. However, 
the general energy policy guidelines issued by the Member State should not 
impinge on the independence or autonomy of the regulatory authorities. 
Case-law of the Court of Justice 
25 In its judgment of 2 September 2021 in Case C-718/18, which concerned the 
transposition of Directives 2009/72/EC and 2009/73/EC (judgment of 
2 September 2021, Commission v Germany, C-718/18, EU:C:2021:662), the 
Court interpreted, inter alia, the provisions of Article 35(4) and (5) of Directive 
2009/72/EC, relating to the independence of the national regulatory authority and 
corresponding to Article 57(4) and (5) of the Electricity Directive currently in 
force. 
26 In that judgment, the Court held that the concept of independence, as regards 
public bodies, refers in its usual meaning to a status that ensures that the body in 
question is able to act completely freely in relation to those bodies in respect of 
which its independence is to be ensured, shielded from any instructions or external 
influence (paragraph 108). Independence in decision-making implies that, within 
the sphere of the regulatory duties and powers, national regulatory authorities take 
their own decisions autonomously and solely in the public interest, so as to ensure 
compliance with the objectives pursued by Directive 2009/72/EC, without being 
subject to external instructions from other public or private entities 
(paragraph 109). 
27 In that judgment, the Court of Justice also held that the requirement for 
independence is without prejudice to general guidelines laid down by the 
government. Such general guidelines do not concern the tasks or regulatory 
powers referred to in Article 37 of Directive 2009/72/EC [Or. 6]. … [NOT 
TRANSLATED] (paragraph 110). 
28 Moreover, in that judgment, the Court of Justice stated that the strict separation of 
national regulatory authorities from political power also enables them to 
coordinate their actions on a long-term basis, which is necessary to meet the 
objectives of Directive 2009/72/EC (paragraph 112). 
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29 The Court also held, in that judgment, that the powers attributed exclusively to 
national regulatory authorities, and their independence, must be ensured in 
relation to any political body, including the national legislature (paragraph 130). 
30 The Court also clarified, in its judgment in the preliminary ruling proceedings in 
Case C-378/19 (judgment of 11 June 2020, Prezident Slovenskej republiky, 
C-378/[1]9, EU:C:2020:462), that the requirements of Directive 2009/72/EC 
relating to the independence of the regulatory authority mean that the national 
regulatory authority must carry out its regulatory tasks without being exposed to 
any external influence (paragraph 33). 
31 In that judgment, the Court also held that the representatives of the national 
ministries must not be able to use their participation in those tariff regulation 
procedures to put any pressure whatsoever on the regulatory authority or to give it 
instructions that might influence its decisions within the framework of its duties 
and powers under Article 37 of Directive 2009/72/EC (paragraph 62). 
32 In that judgment, the Court further stated that, although Directive 2009/72/EC 
does not preclude the government of a Member State, in particular through the 
participation of representatives of its ministries, from being able to state its 
position before the national regulatory authority on the way in which it considers 
that that authority might take the public interest into account in the framework of 
its regulatory tasks, that participation and, in particular, the views expressed by 
those representatives during the tariff regulation procedures cannot be binding or 
in any case be regarded by the regulatory authority as instructions with which it 
would be required to comply when exercising its duties and its powers 
(paragraph 63). 
33 The Court also held in that judgment that, in addition, the rules on the 
participation of representatives of national ministries in tariff regulation 
procedures must not affect the scope of the regulatory authority’s decisions, 
adopted in application of the duties and powers provided for in Article 37 of 
Directive 2009/72/EC (paragraph 64). 
Need for the preliminary ruling 
34 The Market Court must decide whether the Energy Authority was able, during the 
monitoring period, to change the monitoring methods for determining [Or. 7] the 
return on system operations and the charges to be levied for transmission services 
by means of the contested decisions. In the context of that examination, it is 
necessary to consider, on the basis of the arguments put forward by the applicants 
in the present case, whether the amendments to the Law on the electricity market 
introduced by Law No 730/2021, which entered into force on 1 August 2021, 
undermined the independence of the national regulatory authority within the 
meaning of the Electricity Directive. 
35 The Energy Authority based the abovementioned contested decisions essentially 
on the travaux préparatoires relating to the amendments to the Law on the 
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electricity market introduced by Law No 730/2021. Those decisions state, inter 
alia, that, following the amendments to the Law on the electricity market which 
entered into force on 1 August 2021, the Energy Authority started amending the 
monitoring methods in order to adapt to the requirements of the legislation. 
According to those decisions, the central objective of those amendments to the 
Law on the electricity market was to provide the Energy Authority with new tools 
to influence the evolution of transmission tariffs without jeopardising the 
development of secure and smart electricity systems. 
36 The Government bill (HE 265/2020 vp p. 1), which led to the adoption of the 
abovementioned amendments to the Law on the electricity market introduced by 
Law No 730/2021 and which entered into force on 1 August 2021, states that the 
objective of the legislative amendments at issue is to curb an increase in electricity 
distribution prices by taking measures to reduce the cost level of distribution 
system operators and to keep an increase in the cost level under control. The 
abovementioned Government bill addressed amendments to the monitoring 
methods subsequently made by the Energy Authority after the legislative 
amendments entered into force. 
37 The abovementioned Government bill (HE 265/2020 vp p. 32) states that a review 
of the calculation methods does not require there to be legislation directly related 
to the content of the calculation methods. 
38 The abovementioned Government bill (HE 265/2020 vp p. 35) describes how the 
Energy Authority explained, in a background report it had drawn up for the Työ- 
ja elinkeinoministeriö (Ministry of Economic Affairs and Employment) in 
connection with the travaux préparatoires relating to the preparation of the 
Government bill, that, as a result of the proposed amendments to the rules 
applicable to distribution system operators, it would have to amend the 
determination decisions in force concerning the methods used to calculate the 
tariffs of distribution system operators for the ongoing monitoring period. 
Accordingly, this was also stated in the report TaVM 19/2021 vp of the 
Talousvaliokunta (Finance Committee), which was drafted in connection with the 
parliamentary discussion of the Government bill in question. 
39 According to an assessment by the Ministry of Economic Affairs and 
Employment referred to in the abovementioned Government bill (HE 265/2020 vp 
p. 44), the changes to the methods for calculating distribution tariffs notified by 
the Energy Authority have a significant impact on the revenues of distribution 
system operators and their returns (to be recorded as income by their owners). The 
Government bill in question also sets out assessments of the financial impact that 
the changes to the monitoring methods have on the permissible level of return for 
distribution system operators and on the distribution charges levied on the 
distribution system operators’ customers. 
40 For its part, the abovementioned report of the Finance Committee (TaVM 19/2021 
vp pp. 15 to 18) states, inter alia, that it is appropriate to intervene in the 
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unreasonable returns of the owners of system operators, [Or. 8] which are made 
possible by the current calculation methods. According to that report of the 
Finance Committee, under the monitoring model in force at the time, the system 
value was determined on the basis of the component-related unit prices set by the 
Energy Authority. The problem with the monitoring models in question was 
considered to be that the unit prices were fixed for eight years, from 2016 to 2023, 
which meant that the prices no longer reflected the actual cost level. 
41 According to the findings set out in that report of the Finance Committee (TaVM 
19/2021 vp pp. 17 and 18), a key factor underlying the rules for setting the 
transmission charges for electricity and the methods for calculating tariffs is the 
valuation of the electricity system, according to which the return is determined. 
The Finance Committee emphasised that the purpose of the proposed amendments 
was explicitly to allow a change in the monitoring model in the middle of an 
ongoing monitoring period. 
42 The applicants also claimed, in the proceedings before the Market Court, that the 
implementation of the objectives resulting from the travaux préparatoires relating 
to the law and the influence on the independence of the Energy Authority, as 
described above, were also apparent in practice from the documents submitted by 
the applicant to the Market Court (see, in particular, the presentation material of 
the Ministry of Economic Affairs and Employment, which took the lead in this 
matter, for the press conference of 15 October 2020 and the presentation material 
of the Minister of Economic Affairs, Mika Lintilä, acting as lead minister in the 
matter, for the press conference of 28 January 2021). 
43 As is clear from the abovementioned case-law of the Court of Justice on the 
independence of a national regulatory authority for the electricity market, the 
methods for calculating electricity transmission and distribution tariffs in general, 
or certain key aspects concerning them, cannot be made binding on the national 
regulatory authority by national law. Furthermore, according to the case-law of 
the Court of Justice, instructions given by representatives of a ministry concerning 
the decision-making of the national regulatory authority in the context of its core 
regulatory duties and powers also constitute interference with the independence of 
that authority. 
44 On the other hand, the Electricity Directive does not prevent Member States from 
designing and implementing their own energy policies. However, the general 
energy policy guidelines adopted by Member States must not restrict the 
independence or autonomy of the regulatory authority or interfere with the core 
regulatory tasks and powers of the regulatory authority. 
45 The Market Court notes that the amendments to the Law on the electricity market 
introduced by Law No 730/2021 did not, as such, directly affect the monitoring 
methods for distribution system operators applied by the Energy Authority in 
determining the reasonable return of distribution system operators. Similarly, 
those legislative amendments did not directly change the unit prices to be applied 
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in calculating the return or the risk-free interest rate to be applied in determining 
the reasonable rate of return. However, as was also stated, in the manner described 
above, in the travaux préparatoires relating to the law, the purpose of the 
legislative amendments in question was to bring about a reduction in the 
electricity distribution price. According to statements in the abovementioned 
travaux préparatoires, the regulatory authority was given tools and reasons to 
change the calculation methods already in the middle of the monitoring period in 
such a way as to bring about a reduction in the electricity distribution price; the 
changes in the calculation methods were also explained and the effects of the 
changes [Or. 9] assessed in advance. Those statements in the travaux 
préparatoires also seem to have played a role in the adoption of the Energy 
Authority’s contested decisions. 
46 The present case therefore concerns above all the question of what constitutes 
interference with the core regulatory duties and powers of the national regulatory 
authority and what constitutes general guidelines which are not related to the 
regulatory duties and powers under Article 59 of the Electricity Directive, and 
which circumstances are to be taken into account when examining that 
delimitation. 
47 According to the Market Court, it is first necessary to interpret the question of 
whether the objective of curbing the increase in the electricity distribution price 
and reducing the electricity distribution price can be regarded as something other 
than a matter concerning the regulatory duties and powers of the national 
regulatory authority, in particular where the objective of the legislative 
amendment is, for example, to improve the cost efficiency of system undertakings, 
or whether it may also constitute, in that regard, general policy guidelines which 
are not related to the regulatory duties and powers of the national regulatory 
authority and, if so, what the conditions for that would be. In addition, the Market 
Court considers that interpretation is also required regarding the significance to be 
attached in this respect to the fact that the abovementioned statements were set out 
in travaux préparatoires relating to a law (taking into account, inter alia, judgment 
of the Court of Justice of 29 April 2004, Björnekulla Fruktindustrier, C-371/02, 
EU:C:2004:275) and the question as to whether those statements set out in travaux 
préparatoires for the law may even be regarded as policy guidelines within the 
meaning of Article 59 of the Electricity Directive. 
48 As explained above, in its decision on the actions to be heard, the Market Court 
must consider whether the amendments to the Law on the electricity market 
adopted by Law No 730/2021 have undermined the independence of the national 
regulatory authority within the meaning of the Electricity Directive in setting 
system tariffs and in other of its regulatory tasks. According to the Market Court, 
the resolution of the dispute requires the interpretation, first, of Article 57(4) and 
(5) of the Electricity Directive and, second, of Article 59 of that directive. As a 
result, the submission of the request for a preliminary ruling must be regarded as 
virtually indispensable to clarify whether the abovementioned national legislation 
must be regarded as compatible with EU law. 
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49 The Market Court considers that, when ruling on the actions in question, it must 
satisfy itself, if necessary by way of a procedural preliminary question, that the 
national legislation is not to be regarded as incompatible with EU law, in 
particular that the adoption of national legislation has not undermined the 
independence of the national regulatory authority. As is apparent from the 
foregoing, the Court of Justice has interpreted the conditions of independence of 
the national regulatory authority in its judgment in Case C-378/19, also given in 
preliminary ruling proceedings (and has also taken a similar approach in other 
areas, as in its judgment of 6 October 2010, Base and Others, C-389/08, 
EU:C:2010:584). [Or. 10] 
Questions referred for a preliminary ruling 
After affording the parties the opportunity to comment on the content of the 
questions referred for a preliminary ruling, the Market Court has decided to stay 
the proceedings and to refer the following questions to the Court of Justice of the 
European Union for a preliminary ruling pursuant to Article 267 TFEU: 
1. What factors must be taken into account and considered in assessing what 
constitutes interference with the core regulatory duties and powers of the national 
regulatory authority in a way that undermines the independence of the national 
regulatory authority in accordance with Article 57(4) and (5) of the Electricity 
Directive, and what constitutes general guidelines not related to the regulatory 
duties and powers within the meaning of Article 59 of the Electricity Directive? 
2. Is an amendment to national legislation in the manner described above 
(paragraphs 13, 14, 16 and 17 and, in particular, paragraphs 36 to 41 of this 
request for a preliminary ruling), the purpose of which was to influence electricity 
distribution prices in the manner set out in the travaux préparatoires relating to 
the legislative amendment by making amendments to the national Law on the 
electricity market which affect the regulatory environment of system operators 
and which did not, in themselves, directly interfere with transmission or 
distribution tariffs or with the methods for calculating them, but as a consequence 
of which the national regulatory authority was forced to change its monitoring 
methods in the middle of the monitoring period, considered to be compatible with 
Article 57(4) and (5) of the Electricity Directive with regard to the requirement of 
independence of the regulatory authority? 
… [NOT TRANSLATED]