Case C-265/08: Reference for a preliminary ruling from the Tribunale amministrativo regionale della Lombardia lodged on 19 June 2008 — Federutility and Others v Autorità per l'energia elettrica e il gas
Date: 2008-06-19
Institutions: Court of Justice
Subjects: energy distribution, fixing of prices, interpretation of the law, natural gas, price of energy, services of general interest

C 236/6

EN

Official Journal of the European Union

13.9.2008

Operative part of the order

the national

1. Where a directive is transposed belatedly into a Member State's
domestic law and the relevant provisions of the directive do not
have direct effect,
courts are bound to interpret
domestic law so far as possible, once the period for transposition
has expired, in the light of the wording and the purpose of the
directive concerned with a view to achieving the results sought by
the directive,
the national rules
which is the most consistent with that purpose in order thereby to
achieve an outcome compatible with the provisions of the directive.

favouring the interpretation of

2. Clause 5(1)(a) of the Framework Agreement on fixed-term employ-
ment, signed on 18 March 1999, which is annexed to Council
Directive 1999/70/EC of 28 June 1999 concerning the framework
agreement on fixed-term work concluded by ETUC, UNICE and
CEEP, is to be interpreted as precluding the use of successive fixed-
term employment contracts where the justification advanced for
their use is solely that it is provided for by a general provision of
statute or
secondary legislation of a Member State. On the
contrary, the concept of ‘objective reasons’ within the meaning of
that clause requires recourse to this particular type of employment
relationship, as provided for by national legislation, to be justified
by the presence of specific factors relating in particular to the
activity in question and the conditions under which it is carried
out.

3. Clause 5 of the Framework Agreement on fixed-term employment
is to be interpreted as not precluding, as a general rule, a national
provision, such as that referred to in the third question for a preli-
minary ruling, according to which only fixed-term employment
contracts or employment
relationships that are separated by a
period of time shorter than three months can be regarded as ‘succes-
sive’ for the purposes of that clause.

4. In circumstances such as those of the main proceedings, the Frame-
work Agreement is to be interpreted as meaning that, in so far as
domestic law of the Member State concerned does not include, in
the sector under
consideration, any other effective measure to
prevent and, where relevant, punish the misuse of successive fixed-
term contracts, the Framework Agreement precludes the application
of national legislation which, in the public sector alone, prohibits
absolutely the conversion into an employment contract of indefinite
duration of a succession of
fixed-term contracts that have been
intended to cover ‘fixed and permanent needs’ of the employer and
must therefore be regarded as constituting an abuse. It is however
for the referring court, in accordance with its obligation to interpret
national
to determine
whether its domestic law does not include any such other effective
measure.

law in conformity with Community law,

5. The principle of the effectiveness of Community law and the Frame-
work Agreement on fixed-term employment do not preclude, as a
general rule, a provision of national law under which an indepen-
the
dent administrative authority has jurisdiction in respect of

possible reclassification of fixed-term contracts as contracts of inde-
finite duration. It is however for the referring court to ensure that
the right to effective judicial protection is safeguarded with due
regard to the principles of effectiveness and equivalence.

(1) OJ C 247 of 24.10.2007.

Reference for a preliminary ruling from the Tribunale
amministrativo regionale della Lombardia
lodged on
19 June 2008 — Federutility and Others v Autorità per
l'energia elettrica e il gas

(Case C-265/08)

(2008/C 236/09)

Language of the case: Italian

Referring court

Tribunale amministrativo regionale della Lombardia

Parties to the main proceedings

Applicants: Federutility, Asogas, Libarna Gas SpA, Collino
Commercio SpA, Sadori Gas SpA, Egea Commerciale, E.On
Vendita srl, Sorgenia SpA

Defendant: Autorità per l'energia elettrica e il gas

Questions referred

the European Parliament and of

1. On a proper interpretation, in accordance with the principles
enshrined in the EU Treaty, of Article 23 of Directive
2003/55/EC (1) of
the
Council of 26 June 2003, which regulates the opening up of
the gas market, is it contrary to that provision and to the
principles of Community law for a national provision (and
measures adopted in pursuance thereof) to maintain in effect
after 1 July 2007 the power of
the national regulatory
authority to set reference prices for the supply of natural gas
to domestic customers (an open-ended category not defined
in the legislation and which does not of itself entail particular
circumstances of socio-economic disadvantage such as might
justify the setting of such reference prices), which distributors
or suppliers, within the scope of their public service obliga-
tions, are bound to include in their commercial offers?

13.9.2008

EN

Official Journal of the European Union

C 236/7

2. Or is the provision in question (Article 23) to be read in
conjunction with Article 3 of Directive 2003/55/EC (which
provides that Member States may impose on undertakings
operating in the gas sector, in the general economic interest,
public service obligations which may relate inter alia to the
price of supplies) as meaning that it is not contrary to those
provisions of Community law for a national provision which,
having regard to the particular circumstances of the market,
still characterised by an absence of conditions of ‘effective
competition’, at least in the wholesale sector, to allow a
public authority to set a reference price for natural gas which
has to be quoted by every supplier in its commercial offers
to its domestic customers within the scope of the universal
service concept, despite the fact that all customers must be
treated as ‘free’?

(1) OJ L 176, p. 57.

Action brought on 25 June 2008 — Commission of the
European Communities v Kingdom of Sweden

(Case C-274/08)

(2008/C 236/10)

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (repre-
sented by: B. Schima and P. Dejmek, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

the requirement

— Declare that, by failing to adopt appropriate measures to
ensure that
for a functional division
between distribution and production interests in a vertically
integrated undertaking in accordance with Article 15(2)(b)
and (c) of Directive 2003/54/EC of the European Parliament
and of the Council of 26 June 2003 concerning common
rules for the internal market in electricity and repealing
Directive 96/92/EC (1) and by failing to make the regulatory
authorities responsible for approving, in advance, at least the
methodologies used to calculate or establish the terms and
including
conditions

to national networks,

for access

transmission and distribution tariffs in accordance with
Article 23(2)(a) thereof, the Kingdom of Sweden has failed
to fulfil its obligations under that directive;

— order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

In support of its contention that Article 15(2)(b) and (c) has
been implemented in Swedish law, Sweden has referred to
various provisions in the Law on electricity (ellagen),
from
which, inter alia, it is apparent that network activity (distribution
activity) is to be dealt with separately in the accounts and that
the network undertaking's auditor is particularly to audit those
separate accounts. Further, Sweden has submitted that costs
which a network undertaking has in common with another
undertaking are to be entered in the accounts only to the extent
that they concern the network undertaking.
In addition, the
network undertaking is required to establish a supervisory plan
and ensure that it is followed.

the Commission takes the view that
for organisation of

the clear
Nevertheless,
requirement
the management structure
under Article 15(2)(b) and (c) cannot be regarded as satisfied by
general rules concerning, for example, separate accounting or
generally applicable sanctions.

According to Sweden, the requirement for a functional division
is also satisfied by the general company law provisions in the
Law on limited companies (aktiebolaglagen), in accordance with
which parent companies and subsidiaries are separate legal
persons and legal entities.

The Commission takes the view that the parent company, in its
capacity as majority shareholder, has a decisive influence over
its subsidiary or subsidiaries, since certain important questions
are reserved for decision by the shareholders. A distribution
undertaking and its board of directors can thus never be inde-
pendent of its majority shareholders on the basis only of general
company law. Nor does the fact that an integrated undertaking
complies with the provisions of the aktiebolaglagen concerning
auditing and restrictions on the transfer of assets mean, in the
Commission's view, that the requirement for an independent
management structure is satisfied. According to the Commis-
in
sion, correct
implementation of Article 15(2)(b) and (c)
national
law presupposes that there are binding rules which
clearly reflect the conditions laid down in those provisions, that
is to say, a guarantee that the management of a distribution
undertaking can act independently of the integrated electricity
undertaking as regards distribution and the means necessary to
guarantee the operation, maintenance and development of the
network. That requirement is not satisfied by the provisions in
the aktiebolaglagen.