Fluxys SA v Commission de régulation de l’électricité et du gaz (CREG).
Date: 2010-12-09
25. In that regard, the Court may of its own motion, or on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure in accordance with Article 61 of its Rules of Procedure if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, in particular, Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International  [2009] ECR I‑7633, paragraph 31 and case-law cited).
26. However, neither the Statute of the Court of Justice of the European Union nor its Rules of Procedure make provision for the parties to submit observations in response to the Advocate General’s Opinion (see Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 32).
28. It is evident from the Court’s case-law that it is only for national courts before which actions have been brought, and which must assume responsibility for the subsequent judgment, to assess, in the light of the circumstances of each case, both the necessity for a preliminary ruling in order to be able to give their judgment and the relevance of the questions they refer to the Court (see, in particular, Joined Cases C‑422/93 to C‑424/93 Zabala Erasun and Others  [1995] ECR I‑1567, paragraph 14).
29. However, in exercising that power of appraisal the national court, in collaboration with the Court of Justice, fulfils a duty entrusted to them both of ensuring that in the interpretation and application of European Union law the law is observed. Accordingly the problems which may be entailed in the exercise of its power of appraisal by the national court and the relations which it maintains within the framework of Article 267 TFEU with the Court of Justice are governed exclusively by the provisions of European Union law (see Zabala Erasun and Others , paragraph 15).
30. Accordingly, it is essential that the Court have available to it the factual and legislative background to the main proceedings, because the information furnished in orders for reference does not serve only to enable the Court to give helpful answers, but also to enable the governments of the Member States and other interested parties to submit observations in accordance with Article 23 of the Statute of the Court of Justice. It is the Court’s duty to ensure that that possibility is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are notified to the interested parties (Joined Cases 141/81 to 143/81 Holdijk and Others  [1982] ECR 1299, paragraph 6, and order in Case C‑116/00 Laguillaumie  [2000] ECR I‑4979, paragraph 14).
31. Therefore, whilst the Court of Justice must be able to place as much reliance as possible upon the assessment by the national court of the extent to which the questions submitted are necessary, it must be in a position to make any assessment inherent in the performance of its own duties in particular in order to determine, as all courts must, whether it has jurisdiction ( Zabala Erasun and Others , paragraph 16).
32. In the present case, it is clear from the letters received at the Court after the lodging of the reference for a preliminary ruling that, first, Fluxys has withdrawn the pleas in law before the referring court concerning the illegality of the method of fixing tariffs applied by the CREG in the decision at issue before the referring court and it now seeks the annulment of the decisions at issue before the Cour d’appel of Brussels only in relation to historical contracts benefiting from a derogation under Article 32(1) of Directive 2003/55. Moreover, following the judgment of the Constitutional Court of 8 July 2010, the national legislation applicable by the referring court is no longer that under consideration in the context of the request for a preliminary ruling.
34. It follows that, taking into account the developments in the proceedings before the referring court, in terms both of procedure and of the applicable law, the Court is no longer in a position to give a ruling on the question referred to it.
Costs