GRDF SA v Eni Gas & Power France SA and Others.
Date: 2019-12-19
19


The referring court states, by referring to the judgment of 13 March 2008, Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Others, (C‑383/06 to C‑385/06, EU:C:2008:165, paragraph 55), that the Court of Justice enshrined the principle of legal certainty and accepted that it may take precedence over the effectiveness of EU law.
30


It is the Court’s established case-law that it follows from the requirement for the uniform application of Union law and from the principle of equality that the terms of a provision of Union law which does not contain any express reference to the law of the Member States for the purpose of determining its meaning and scope, must be given an autonomous and uniform interpretation throughout the European Union, that interpretation must take into account not only the wording of that provision but also its context and the objective pursued by the legislation in question (judgment of 23 May 2019, WB, C‑658/17, EU:C:2019:444, paragraph 50 and the case-law cited).
34


As regards the aim of Directive 2009/73, it is to pursue the achievement of an internal market in natural gas that is entirely and effectually open and competitive and in which all consumers can freely choose their suppliers and all suppliers can freely supply their products to their customers (see, to that effect, judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraph 26). To that end, as it is apparent from Article 1 thereof, that directive aims to establish common rules on transmission, distribution, supply and storage of natural gas (see, to that effect, order of 14 May 2019, Acea Energia and Others, C‑406/17 to C‑408/17 and C‑417/17, not published, EU:C:2019:404, paragraph 54). In that regard, recitals 4, 6, 25 and 40 of that directive disclose the wish of the EU legislature to ensure non-discriminatory access to gas distribution systems (see, to that effect, judgment of 22 October 2013, Essent and Others, C‑105/12 to C‑107/12, EU:C:2013:677, paragraph 65).
35


In that regard, it is necessary, first of all, to reject GRDF’s argument that the decisions of the dispute settlement authority are administrative decisions which cannot produce effects before the dispute between the parties has arisen. Such an interpretation would run counter to the objectives of Directive 2009/73 and would undermine its useful effect. Like the European Commission in its written submissions, it is worth recalling the Court’s consistent case-law that the obligation to give full effect to EU law, including by erasing the consequences of an infringement of EU law, is imposed on national courts, but also, within the framework of their respective powers, on all the organs of the Member State concerned, including the administrative authorities (see, to that effects, judgments of 12 June 1990, Germany v Commission, C‑8/88, EU:C:1990:241, paragraph 13; of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 64, and of 4 December 2018, Minister for Justice and Equality and Commissioner of An Garda Síochána, C‑378/17, EU:C:2018:979, paragraphs 38 and 39).
37


Finally, as regards the effect of the fact that, in the present case, the contracts at issue have been concluded before the entry into force of Directive 2009/73, it should be recalled that the latter does not create a new scheme, but is a direct continuation of Directive 2003/55, which Directive 2009/73 repealed and replaced. Accordingly, the latter directive has the same objectives as Directive 2003/55 and leaves unchanged the content of its substantive provisions, including those concerning access to the distribution system, provided for, respectively, in Article 18 of Directive 2003/55 and Article 32 of Directive 2009/73 (see, in that effect, judgment of 26 March 2015, Commission v Moravia Gas Storage, C‑596/13 P, EU:C:2015:203, paragraph 37).
41


When Member States adopt measures implementing Union law, they are required to respect the general principles of Union law (judgment of 7 August 2018, Ministru kabinets, C‑120/17, EU:C:2018:638, paragraph 48 and case-law cited).
42


It should be recalled that the principle of legal certainty requires, on the one hand, that rules of law must be clear and precise and, on the other, that their application must be foreseeable by those subject to them (see, to that effect, judgment of 11 September 2019, Călin, C‑676/17, EU:C:2019:700, paragraph 50 and the case-law cited).
43


In that regard, the Court of Justice has, admittedly, held, first, that it may, in exceptional cases and for overriding considerations of legal certainty, allow temporary suspension of the ousting effect of a rule of EU law with respect to national law that is contrary thereto, and, second, that a national court may, in the circumstances which only the Court of Justice may determine, exceptionally be authorised to make use of a national provision empowering it to maintain certain effects of an annulled national measure, due to compelling considerations relating to the protection of the environment and the security of the electricity supply of the Member State concerned (see, to that effect, judgment of 29 July 2019, Inter-Environment Wallonia and Bond Beter Leefmilieu Vlaanderen, C‑411/17, EU:C:2019:622, paragraphs 177 to 179).
44


However, even if GRDF’s claim is to be understood as a request to that effect, the possibility of a referring court to limit in time the effects of the annulment of an act of national law contrary to Union law should be excluded from the outset. Indeed, the referring court has not referred to any specific evidence that could establish specific risks of legal uncertainty that would result from the fact that the effects of Cordis decisions, under Article 41(11) of Directive 2009/73, extend to the situation of the parties to the dispute before it and which prevailed between them before the emergence of that dispute (see, by analogy, judgment of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others, C‑597/17, EU:C:2019:544, paragraph 59 and the case-law cited).
46


In that regard, the right to rely on the principle of the protection of legitimate expectations extends to any person in a situation in which a national administrative authority has caused that person to entertain expectations which are justified by precise assurances provided to him (judgment of 7 August 2018, Ministru kabinets, C‑120/17, EU:C:2018:638, paragraph 50 and the case-law cited).
47


It is therefore necessary to determine whether the conduct of the administrative authority in question gave rise to a reasonable expectation on the part of the person concerned and, if it did, it must then be established whether that expectation was legitimate (judgment of 7 August 2018, Ministru kabinets, C‑120/17, EU:C:2018:638, paragraph 51 and the case-law cited).
49


In addition, it appears from the order for reference and the written comments submitted by Eni Gas that Cordis, which is also the electricity dispute settlement authority referred to in Article 37(11) of Directive 2009/72, took decisions in the electricity sector from 2008 comparable to that at issue in the case in the main proceedings as regards the natural gas sector. Thus, and subject to determination by the national court, Cordis appears to have decided that Directive 2009/72 would preclude a contractual clause by which the electricity distribution system operator transfers the risk of unpaid amounts relating to the tariff for electricity distribution to electricity suppliers. In that regard, it must be borne in mind that Directives 2009/72 and 2009/73 have identical objectives, inter alia, to ensure non-discriminatory access to electricity or gas distribution systems (see, to that effect, judgment of 22 October 2013, Essent and Others, C‑105/12 to C‑107/12, EU:C:2013:677, paragraph 65).
50


Moreover, according to the Court’s case-law, the principle of the protection of legitimate expectations cannot be relied upon against an unambiguous provision of EU law; nor can the conduct of a national authority responsible for applying EU law, which acts in breach of that law, give rise to a legitimate expectation on the part of a person of beneficial treatment contrary to EU law (judgment of 7 August 2018, Ministru kabinets, C‑120/17, EU:C:2018:638, paragraph 52 and the case-law cited).