Case C-475/08: Action brought on 5 November 2008 — Commission of the European Communities v Kingdom of Belgium
Date: 2008-11-05
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, domestic market, energy grid, energy storage, energy transport, natural gas

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

C 32/14

EN

Official Journal of the European Union

7.2.2009

possible means of access for third parties to the system and that
the regulatory authority alone is responsible for
fixing or
approving prior to their entry into force, at least the methodolo-
gies used to calculate or establish the tariffs.

Finally, the Commission points out that, by exempting new
large natural gas facilities from the application of the directive,
the defendant has not correctly transposed Article 22(3)(d) of
the directive, with respect to the requirement to publish the
decision, and Article 22(3)(e) of the directive, concerning the
obligation to consult the other Member States or regulatory
authorities concerned by the interconnection of those infrastruc-
tures. Furthermore, the defendant has not made provision in its
national law for the obligation to notify without delay such an
exemption decision to the Commission, together with all the
other relevant information with respect to that decision, as is
provided for in Article 22(4) of the directive.

(1) OJ 2003 L 176, p. 57.

Reference for a preliminary ruling from the Court of
Appeal
(England and Wales) made on
7 November 2008 — Maria Teixeira v London Borough of
Lambeth, Secretary of State for the Home Department

(Civil Division)

(Case C-480/08)

(2009/C 32/23)

Language of the case: English

Referring court

Court of Appeal (Civil Division)

Parties to the main proceedings

Applicant: Maria Teixeira

Defendants: London Borough of Lambeth, Secretary of State for
the Home Department

Questions referred

In circumstances where (i) an EU citizen came to the United
Kingdom (ii) the EU citizen was for certain periods a worker in
the United Kingdom (iii) the EU citizen ceased to be a worker
but did not depart from the United Kingdom, (iv) the EU citizen
has not retained her status as a worker and has no right to
reside under Article 7 and has no right of permanent residence
under Article 16 of Directive 2004/38 (1) of the Council and
the European Parliament (v) the EU citizen's child entered educa-

tion at a time when the EU citizen was not a worker but the
child remained in education in the United Kingdom during
periods when the EU citizen was in work in the United
Kingdom, (vi) the EU citizen is the primary carer of her child
and (vii) the EU citizen and her child are not self-sufficient:

(1) does the EU citizen only enjoy a right of residence in the
United Kingdom if she satisfies the conditions set out in
Directive 2004/38 of
the European Parliament and the
Council of 29 April 2004?;

OR

(2)

(i) does the EU citizen enjoy a right to reside derived from
Article 12 of Regulation (EEC) No 1612/68 of
15 October 1968 (2), as interpreted by the Court of
Justice, without being required to satisfy the conditions
set out
the European
Parliament and of the Council of 29 April 2004; and

in Directive 2004/38 of

(ii) if so, must she have access to sufficient resources so as
not to become a burden on the social assistance system
of the host Member State during their proposed period
of residence and have comprehensive sickness insurance
cover in the host Member State?;

(iii) if so, must the child have first entered education at a
time when the EU citizen was a worker in order to
enjoy a right to reside derived from Article 12 of Regu-
lation (EEC) No 1612/68 of 15 October 1968, as inter-
preted by the Court of Justice, or is it sufficient that the
EU citizen has been a worker at some time after the
child commenced education?;

(iv) does any right that the EU citizen has to reside, as the
primary carer of a child in education, cease when her
child attains the age of eighteen?

(3) if the answer to question 1 is yes, is the position different in
circumstances such as the present case where the child
commenced education prior to the date by which Directive
2004/38 of the European Parliament and of the Council of
29 April 2004 was to be implemented by the Member
States but the mother did not become the primary carer and
did not claim the right to reside on the basis that she was
the primary carer of the child until March 2007, ie after the
date by which the Directive was to be implemented?

(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 (Text with EEA relevance) (OJ L 158, p. 77).

64/221/EEC,

68/360/EEC,

(2) Regulation (EEC) No 1612/68 of the Council of 15 October 1968
for workers within the Community

on freedom of movement
(OJ L 257, p. 2).