Case C-274/08: Action brought on 25 June 2008 — Commission of the European Communities v Kingdom of Sweden
Date: 2008-06-25
Institutions: Court of Justice
Subjects: European Commission, Sweden, action for failure to fulfil an obligation, company law, domestic market, electrical energy, energy grid, vertical agreement

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.

C 236/8

EN

Official Journal of the European Union

13.9.2008

As is apparent from the wording of Article 23(2)(a) of the
Directive, that article requires a system of advance approval of
network tariffs or, in any event, of the methodologies used to
calculate them. Sweden has expressly stated that the present
Swedish rules on the calculation of network tariffs and the
criteria which network tariffs must satisfy are based on a system
in which supervision is carried out after the event, but that
inquiries are presently taking place regarding the introduction of
a new system of advance approval and that a proposal would
probably be put before parliament in June 2008.

In the abovementioned circumstances, the Commission takes
the view that Sweden has not correctly implemented Directive
2003/54/EC in its national law, in particular Articles 15(2)(b)
and (c) and 23(2)(a) thereof.

(1) OJ 2003 L 176, p. 37.

Reference for a preliminary ruling from the Tribunal
administratif (Luxembourg) lodged on 26 June 2008 —
Miloud Rimoumi and Gabrielle Suzanne Marie Prick v
Ministre des Affaires étrangères et de l'Immigration

(Case C-276/08)

(2008/C 236/11)

Language of the case: French

Referring court

Tribunal administratif

75/35/EEC,

90/365/EEC

90/364/EEC,

move and reside freely within the territory of
the Member
States, amending Regulation (EEC) No 1612/68 and repealing
Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC,
and
75/34/EEC,
93/96/EEC (1) to be interpreted as applying only to those family
members who acquired that status prior to the date on which
the Union citizen, whom they intend to accompany or join,
exercised his/her right of free movement conferred by Article
39 of the EC Treaty, or, on the contrary, is any citizen of the
Union who has exercised his/her right of free movement and
become established in a Member State other than that of which
that person is a national entitled to be joined by a family
member, without the latter having to satisfy a condition as to
the time at which he/she acquired that status?

(1) Directive 2004/38/EC of

the European Parliament and of

the
Council of 29 April 2004 on the right of citizens of the Union and
their family members to move and reside freely within the territory
of the Member States, amending Regulation (EEC) No 1612/68 and
repealing Directives
72/194/EEC,
73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and
93/96/EEC (OJ 2004 L 158, p. 77).

64/221/EEC,

68/360/EEC,

Reference for a preliminary ruling from the Cour de
lodged on 30 June 2008 — Société
cassation (France)
Moteurs Leroy Somer v Société Dalkia France, Société
Ace Europe

(Case C-285/08)

(2008/C 236/12)

Language of the case: French

Parties to the main proceedings

Applicants: Miloud Rimoumi and Gabrielle Suzanne Marie Prick

Defendant: Ministre des Affaires étrangères et de l'Immigration

Referring court

Cour de cassation

Parties to the main proceedings

Question referred

Appellant: Société Moteurs Leroy Somer

Are Articles 2(2)(a), 3(1) and 7(2) of Directive 2004/38/EC on
the right of citizens of the Union and their family members to

Respondents: Société Dalkia France, Société Ace Europe