„Оvergas Mrezhi“ AD and „Balgarska gazova asotsiatsia“ v Komisia za energiyno i vodno regulirane (KEVR).
Date: 2020-04-30
42


In so far as the Regulatory Commission challenges the admissibility of the first question on the ground that, if regard were had to the actual facts and law, which that question does not reflect, the answer to it would be clear from the case-law, it should be noted, first, that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (judgment of 6 October 2015, Târşia, C‑69/14, EU:C:2015:662, paragraph 12 and the case-law cited).
43


In particular, it is not for the Court, in the context of the judicial cooperation established by Article 267 TFEU, to call into question or to verify the accuracy of the national court’s interpretation of national law, as such interpretation falls within the exclusive jurisdiction of that court. In addition, when hearing a reference for a preliminary ruling from a national court, the Court must base its reasoning on the interpretation of national law as described to it by that court (judgments of 11 September 2014, Essent Belgium, C‑204/12 to C‑208/12, EU:C:2014:2192, paragraph 52 and the case-law cited, and of 6 October 2015, Târşia, C‑69/14, EU:C:2015:662, paragraph 13 and the case-law cited).
44


The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgments of 11 September 2014, Essent Belgium, C‑204/12 to C‑208/12, EU:C:2014:2192, paragraph 54 and the case-law cited, and of 6 October 2015, Târşia, C‑69/14, EU:C:2015:662, paragraph 14 and the case-law cited).
45


Second, and moreover, those circumstances in no way prevent a national court from referring a question for a preliminary ruling to this Court, the answer to which, in the submission of the defendants in the main proceedings, leaves no scope for reasonable doubt. Thus, even if that were the case, that question does not thereby become inadmissible (judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraphs 64 and 65 and the case-law cited).
56


It should therefore be noted that, although State intervention in the fixing of the price of natural gas constitutes an obstacle to the achievement of a competitive natural gas market, that intervention may nonetheless be accepted within the framework of Directive 2009/73 if three conditions are satisfied. First, the intervention must pursue an objective of general economic interest, second, it must comply with the principle of proportionality and, third, the public service obligations that it lay downs must be clearly defined, transparent, non-discriminatory and verifiable, and guarantee EU gas undertakings equal access to consumers (see, to that effect, judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraph 36 and the case-law cited).
57


In the first place, as regards the condition relating to the pursuit of a general economic interest, it is true that Directive 2009/73 does not define that condition. However, the reference in Article 3(2) of that directive both to that condition and to Article 106 TFEU, which concerns undertakings entrusted with the management of a service of general economic interest, means that that condition should be interpreted in the light of Article 106 TFEU (judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraph 38 and the case-law cited).
58


The interpretation of the condition relating to the pursuit of a general economic interest must furthermore take account of Article 14 TFEU, of Protocol (No 26) on services of general interest, annexed to the EU Treaty, as amended by the Treaty of Lisbon, and to the FEU Treaty, which expressly recognises the essential role and the wide discretion of the authorities of the Member States in providing, commissioning and organising services of general economic interest, and of the Charter, in particular Article 36 of the Charter on access to services of general economic interest (see, to that effect, judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraphs 40 and 41).
60


In that context, Article 106(2) TFEU aims to reconcile the Member States’ interest in using certain undertakings as an instrument of economic or social policy with the EU’s interest in ensuring compliance with the rules on competition and preserving the unity of the internal market (judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraph 43 and the case-law cited).
61


The Member States are thus entitled, while complying with EU law, to define the scope and organisation of their services of general economic interest and they may in particular take account of objectives pertaining to their national policy (judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraph 44 and the case-law cited).
62


In that regard, the Court has stated that, in the assessment which the Member States must carry out, in accordance with Directive 2009/73, to determine whether, in the general economic interest, public service obligations should be imposed on undertakings operating in the gas sector, it is for the Member States to reconcile the objective of liberalisation with the other objectives pursued by the directive (judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraph 45 and the case-law cited).
63


Thus, EU law, in particular Article 3(2) of Directive 2009/73, read in the light of Articles 14 TFEU and 106 TFEU, allows the Member States to assess whether, in the general economic interest, public service obligations relating to the price of natural gas should be imposed on undertakings operating in the gas sector, in particular in order to ensure the security of, and consistency in, supply, provided that the other conditions laid down by that directive are satisfied (see, to that effect, judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraph 52).
65


National legislation which provides that the costs for natural gas undertakings associated with such public service obligations must be passed on by those undertakings through the prices which they charge their customers also furthers those objectives of general economic interest since, being intended to ensure that those objectives are cost-neutral for those undertakings, it contributes to the effective performance of those obligations by those undertakings. It is nevertheless for the referring court to ascertain whether that is the case, by taking account of the fact that the Court has previously held that it is not inconceivable that national legislation introducing an obligation to supply natural gas at a determined price may be regarded as capable of ensuring that such objectives are attained (see, to that effect, judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraph 58).
66


In the second place, as regards the second condition of compliance with the principle of proportionality, it follows from the very wording of Article 106 TFEU that the public service obligations which Article 3(2) of Directive 2009/73 allows to be imposed on undertakings must comply with that principle and, therefore, that those obligations may, from 1 July 2007, compromise the freedom to determine the price of supply of natural gas only in so far as is necessary to achieve the objective of general economic interest which they pursue (see, to that effect, judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraph 53 and the case-law cited).
67


While it is for the referring court to assess in the main proceedings whether that requirement of proportionality is satisfied, it is, however, for the Court to provide the referring court, on the basis of the information available, with the necessary indications for that purpose from the point of view of EU law (see, by analogy, judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraph 54 and the case-law cited).
68


Thus, compliance with the principle of proportionality means, first, that the measure in question must be appropriate for securing the objective of general economic interest which it pursues (judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraph 55 and the case-law cited).
70


Second, in order to comply with the principle of proportionality, State intervention in prices must be limited to what is strictly necessary for achieving the objective pursued, which entails a periodical review of the necessity of the measure (see, to that effect, judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraph 60 and the case-law cited).
72


Third, the method of intervention used must not go beyond what is necessary to achieve the objective of general economic interest being pursued (judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraph 64 and the case-law cited).
75


Fourth, compliance with the principle of proportionality must also be assessed with regard to the scope ratione personae of the measure in question and, more particularly, to those who benefit from that scope. In that regard, the Court has previously stated that it must be examined to what extent the State intervention at issue benefits individuals and undertakings respectively as final consumers of gas (judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraphs 67 and 68 and the case-law cited).
76


Compliance with that principle does not, however, preclude the public service obligations which Member States may adopt in the context of Article 3(2) of Directive 2009/73 from applying to final consumers of gas as a whole. In that case, however, it would be necessary to take account, in assessing the proportionality of the national measure in question, of the fact that the situation of undertakings is, in principle, different from that of domestic consumers, the objectives pursued and the interests present being not necessarily the same and also of objective differences between the undertakings themselves, according to their size (see, to that effect, judgment of 20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraphs 40 to 42).
80


In the third place, as regards the condition that the public service obligations at issue must be clearly defined, transparent, non-discriminatory, verifiable and guarantee equality of access for EU natural gas undertakings to national consumers, it should be noted that, as regards the non-discriminatory nature of those obligations, Article 3(2) of Directive 2009/73 allows public service obligations to be imposed generally ‘on undertakings operating in the gas sector’, not on certain undertakings specifically. Moreover, Article 3(1) of the directive provides that the Member States ‘shall not discriminate’ between natural gas undertakings ‘as regards their rights or obligations’. In this framework, the system of designating undertakings responsible for public service obligations may not exclude a priori any of the undertakings operating in the gas distribution sector (judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraph 71 and the case-law cited). Thus, any difference of treatment which may arise must be objectively justified.
82


Since the storage obligations at issue in the main proceedings can, by their nature, concern only undertakings currently operating in the gas sector, the fact that the costs of those obligations are not borne by all energy companies cannot prove that the requirement to pass on those costs is discriminatory. It is nevertheless for the referring court to ascertain whether the financial burden of those obligations affects all natural gas undertakings and, if not, whether the resulting difference in treatment is justified objectively, and whether or not the rules for passing on that burden in respect of the undertakings in question are discriminatory (see, by analogy, judgment of 20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraphs 45 and 46).
93


However, the issue of whether the second question concerns a matter unconnected with EU law on the ground that that directive does not require the legislation of the Member States to provide for similar rules to those from which the Regulatory Commission is exempted by the national legislation at issue in the main proceedings relates to the substance of the question referred, and not its admissibility (see, by analogy, judgment of 21 October 2010, Padawan, C‑467/08, EU:C:2010:620, paragraph 27 and the case-law cited). The question is therefore admissible.