Case C-474/08: Action brought on 4 November 2008 — Commission of the European Communities v Kingdom of Belgium
Date: 2008-11-04
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, domestic market, electrical energy, energy distribution, energy grid, energy transport

7.2.2009

EN

Official Journal of the European Union

C 32/13

Action brought on 4 November 2008 — Commission of
the European Communities v Kingdom of Belgium

situations over the methodology used to calculate or establish
the tariffs for transmission and distribution.

(Case C-474/08)

(2009/C 32/21)

Language of the case: French

(1) OJ L 176, p. 37.

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Patakia and B. Schima, Agents)

Defendant: Kingdom of Belgium

Form of order sought

The applicant claims that the Court should:

— declare that,

by failing to provide that cases of refusal of access to the
distribution or transmission network can be submitted to
the regulatory authority which will rule by binding decision
within two months,
in accordance with Article 23(5) 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),

by removing certain issues which are decisive for the calcula-
the regulatory
tion of
authority
in Article 23(2) of Directive
as
2003/54/EC,

tariffs from the competence of

set out

the Kingdom of Belgium has failed to fulfil its obligations
under that directive;

— order Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

that

The Commission submits,
the transposition into
first,
Belgian law of Article 23(5) of Directive 2003/54/EC has not
been carried out. The relevant provisions of Belgian law relating
the electricity market are in fact so
to the organisation of
general that they do not enable it to be ascertained with any
certainty whether there is an individual right of action against
decisions to refuse access to the electricity distribution or trans-
mission network. Those provisions do not set out an exact
procedural framework and do not provide for a time-limit as
regards the response of the regulatory authority, in this case the
Commission nationale de régulation de l'électricité (National
Commission for the Regulation of Electricity; CRE).

The applicant secondly alleges that the defendant has infringed
Article 23(2) of Directive 2003/54/EC in so far as it confers on
the Crown, that is an authority other than the CRE, the power
to set specific rules concerning the provision for depreciation
and the profit margin relating to investments in the national
interest and in European interest. That procedure is not compa-
tible with the aforementioned article, since the regulatory
authority does not seem to have any control in either of those

Action brought on 5 November 2008 — Commission of
the European Communities v Kingdom of Belgium

(Case C-475/08)

(2009/C 32/22)

Language of the case: French

Parties

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

Defendant: Kingdom of Belgium

Form of order sought

— declare that,

by failing to designate the systems operators as required
under Article 7 of Directive 2003/55/EC of the European
Parliament and of the Council of 26 June 2003 concerning
common rules for the internal market in natural gas and
repealing Directive 98/30/EC (1),

by providing for not only a regulated access but also a nego-
third parties to the system contrary to
tiated access of
Article 18 of Directive 2003/55/EC,
in conjunction with
Article 25(2) thereof,

by failing to transpose Article 22(3)(d) and (e) and (4) of
Directive 2003/55/EC,

the Kingdom of Belgium has failed to fulfil its obligations
under that directive;

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Commission raises three complaints in support of
action.

its

First, it alleges that the defendant has not designated the systems
operators for the transmission and storage of gas and liquefied
natural gas terminals, as provided for in Articles 7 and 11 of
Directive 2003/55/EC.

It is then alleged that the defendant creates legal uncertainty
with regard to new entrants in so far as it gives the impression
that the negotiated access to the system is an alternative to the
regulated access. However, it is clear from Articles 18 and 25(2)
regulated access is the only
of Directive 2003/55/EC that