Julius Sabatauskas and Others.
Date: 2008-10-09
31. The aim of the Directive is to improve the operation of the internal market in electricity. According to recitals 6 and 7 in its preamble, non‑discriminatory, transparent and fairly priced network access is necessary for competition to function and is of paramount importance in completing the internal electricity market (see Case C-439/06 citiworks  [2008] ECR I‑0000, paragraphs 38 and 40).
32. Recital 4 in the preamble to the Directive states that a fully open market must enable consumers freely to choose their suppliers and suppliers freely to deliver to their customers.
33. The Court has inferred from this, first, that, in order for eligible customers to be able freely to choose their suppliers, it is necessary that suppliers should have the right to access the transmission and distribution systems which carry electricity to customers and, second, that open third party access to transmission and distribution systems constitutes one of the essential measures which the Member States are required to implement in order to bring about completion of the internal market in electricity (see citiworks , paragraphs 43 and 44).
38. It is settled case-law that the wording used in one language version of a Community provision cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement for uniform application of Community law (see Case C‑149/97 Institute of the Motor Industry [1998] ECR I‑7053, paragraph 16, and Case C‑187/07 Endendijk  [2008] ECR I‑0000, paragraph 23).
39. Where there is divergence between the various language versions of a Community text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (Case C‑437/97 EKW and Wein & Co  [2000] ECR I‑1157, paragraph 42; Case C‑1/02 Borgmann  [2004] ECR I‑3219, paragraph 25; and Endendijk , paragraph 24).
40. The terms ‘access’ and ‘connection’ appear in the Directive with different meanings. The term ‘access’ is linked to the supply of electricity, including inter alia the quality, regularity and cost of the service. It is often used in the context of guaranteeing non‑discriminatory tariffs. Thus, it is stated in recitals 2 and 13 in the preamble to the Directive that access to the network on the basis of tariffs published prior to their entry into force guarantees non‑discriminatory transmission and distribution tariffs, in recital 6 that that access must be non‑discriminatory, transparent and fairly priced, in recital 15 that the intervention of regulatory authorities guarantees non‑discriminatory access to the network and in recital 17 that non‑discriminatory and cost‑reflective balancing mechanisms are necessary in order to ensure effective market access for all market players.
42. Thus, it is apparent from that examination of the provisions of the Directive that, as the Advocate General indicated at points 34 and 36 of her Opinion, access to the system includes the right to use electricity systems and that connection corresponds to physical connection to the system. Article 20 of the Directive imposes obligations on Member States only in respect of access to the system and not in respect of connection thereto.
43. Since, first, transmission and distribution do not include the supply of electricity and, second, eligible customers must be able to freely choose their suppliers and those suppliers must be able to access the systems, as noted at paragraph 33 above, it follows that, for eligible customers, the right to access the systems is exercised through a supplier whom customers must be able freely to choose. That freedom of choice is, as the Advocate General stated at point 41 of her Opinion, guaranteed whether the supplier connects them to a transmission system or to a distribution system.
44. With regard, next, to the concept of ‘third party’, it should be pointed out that the text of Article 20(1) of the Directive itself explains that term by also using the term ‘system users’, defined in Article 2(18) of the Directive as meaning any natural or legal persons supplying to, or being supplied by, a transmission or distribution system. Customers are included among such persons.
46. It is one of the objectives of the Directive that access to the system should be open – which, as noted in paragraph 33 above, constitutes an essential measure for bringing about the completion of the internal market in electricity – and that it should be based on objective, non‑discriminatory and transparent criteria and on tariffs published prior to their entry into force, and not that it should be at the customer’s discretion.
47. It follows from this that Member States retain a certain flexibility in steering system users towards one or another type of system, provided, however, that they do so for non‑discriminatory reasons and in accordance with objective considerations. System users thus have a right of access to the electricity system but Member States may decide that the connection is to be made on one or another type of system. It is necessary however to verify that the criteria chosen by Member States are objective and non‑discriminatory.
48. In that respect, the wish to prevent large customers from connecting directly to transmission systems, which would result in the costs related to the distribution systems falling on small customers alone and thus in an increase in the price of electricity, may justify the obligation to connect primarily to a distribution system. It is, however, for national courts alone to verify the truth of those grounds and whether they are based on objective and non‑discriminatory criteria.
49. It follows from all of the foregoing that the answer to the question referred must be that Article 20 of the Directive is to be interpreted as defining the Member States’ obligations only in respect of the access and not the connection of third parties to the electricity transmission and distribution systems and as not laying down that the system of network access that the Member States are required to establish must allow an eligible customer to choose, at his discretion, the type of system to which he wishes to connect. Article 20 must also be interpreted as not precluding national legislation which lays down that an eligible customer’s equipment may be connected to a transmission system only where the distribution system operator refuses, on account of established technical or operating requirements, to connect to its system the equipment of the eligible customer which is on the territory included in its licence. It is, however, for national courts to verify that the implementation and application of that access system takes place in accordance with criteria which are objective and do not discriminate between the users of the transmission and distribution systems.
Costs