Enel Produzione SpA v Autorità per l'energia elettrica e il gas.
Date: 2011-12-21
32. In that regard, it should be noted that the Court has no jurisdiction to give a preliminary ruling on a question submitted by a national court where it does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006] ECR I‑11421, paragraph 25, and Case C‑380/05 Centro Europa 7  [2008] ECR I‑349, paragraph 53). The order for reference must set out the precise reasons why the national court was unsure as to the interpretation of EU law and why it considered it necessary to refer questions to the Court for a preliminary ruling. Against that background, it is essential that the national court provide at the very least some explanation of the reasons for the choice of the provisions of EU law which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute before it ( Centro Europa 7 , paragraph 54 and the case-law cited).
39. It should be noted that Member States are required, under Article 3(9) of Directive 2003/54, to inform the Commission of all measures adopted to fulfil public service obligations, including consumer protection, and of their possible effect on national and international competition, whether or not such measures require a derogation from that directive, and to inform the Commission every two years of any changes to such measures (see, to that effect, Case C‑265/08 Federutility and Others  [2010] ECR I‑3377, paragraph 23) and that notification of those measures makes it possible to check whether a Member State sought to impose a public service obligation. However, the absence of notification is not sufficient in itself to demonstrate that the legislation at issue does not constitute a public service obligation.
41. As the Court has stated, that provision is designed to reconcile the Member States’ interest in using certain undertakings as an instrument of economic or social policy with the European Union’s interest in ensuring compliance with the rules on competition and preservation of the unity of the common market (see, to that effect, Case C‑67/96 Albany [1999] ECR I‑5751, paragraph 103 and the case-law cited).
42. Thus it follows from the very wording of Article 86 EC that the public service obligations which Article 3(2) of Directive 2003/54 allows to be imposed on undertakings must be consistent with the principle of proportionality and that, accordingly, those obligations may compromise the freedom to determine the price for the supply of electricity only in so far as is necessary to achieve the objective in the general economic interest which they pursue ( Federutility and Others , paragraph 33).
EU legislation on the electricity market and dispatching services
50. It should be borne in mind that Member States are entitled, while complying with the law of the European Union, to define the scope and the organisation of their services in the general economic interest. In particular, they may take account of objectives pertaining to their national policy (see, to that effect, Albany , paragraph 104, and Federutility and Others , paragraph 29).
54. The obligations referred to in the preceding paragraph address concerns for the security of the system and for consumer protection, acknowledged in Article 3(2) of Directive 2003/54. It must therefore be held in principle that the rules governing essential installations pursue a general economic interest objective.
Consistency with the principle of proportionality
55. Although – as is apparent from paragraph 42 above – Article 3(2) of Directive 2003/54, read in conjunction with Article 86 EC, allows obligations to be imposed on undertakings responsible for operating a public service as regards, inter alia, setting prices for the supply of electricity, national legislation imposing such obligations must be appropriate for securing the objective which it pursues and must not go beyond what is necessary in order to attain it, so as to be consistent with the principle of proportionality.
56. It is necessary, therefore, to examine whether legislation such as that at issue in the main proceedings is appropriate for securing the objectives stated, namely, security of the system and consumer protection.