Solvay Chimica Italia SpA and Others v Autorità per l'energia elettrica, il gas e il sistema idrico.
Date: 2018-11-28
28


Although the concept of ‘distribution system’ is not defined as such by Directive 2009/72, the concept of ‘distribution’ is, however, defined in Article 2(5) thereof as covering the transport of electricity on high‑voltage, medium-voltage and low-voltage distribution systems with a view to its delivery to customers, but excluding ‘supply’, which itself must be understood, in accordance with Article 2(19) of the directive, as referring to the sale of electricity to customers (see, by analogy, judgment of 22 May 2008, citiworks, C‑439/06, EU:C:2008:298, paragraph 45).
29


It follows from those definitions that a distribution system is a system used to transport electricity at high, medium or low voltage (see, by analogy, judgment of 22 May 2008, citiworks, C‑439/06, EU:C:2008:298, paragraph 46).
30


Accordingly, the voltage of the electricity transported is a relevant criterion for determining whether a system constitutes a distribution system within the meaning of Directive 2009/72 (see, to that effect, judgment of 22 May 2008, citiworks, C‑439/06, EU:C:2008:298, paragraph 48).
31


On the other hand, neither the date on which such a system was put into place nor the fact that that system is intended for the purposes of own consumption and operated by a private person — with a limited number of generation and consumption units being connected to that system — constitute relevant criteria in that regard.
35


It must also be noted, with regard to the limited size of the system, that Directive 2009/72 refers to such a criterion, in Article 2(26) and (27) only for the purposes of defining the concepts of ‘small isolated system’ or ‘micro isolated system’, the EU legislature having thus not intended to exclude particular distribution systems from the scope of that directive by reason of their size or consumption of electricity (see, by analogy, judgment of 22 May 2008, citiworks, C‑439/06, EU:C:2008:298, paragraph 49).
36


The foregoing considerations are, moreover, supported by the aim of Directive 2009/72, which is to bring about the internal market in electricity (see, to that effect, judgment of 22 May 2008, citiworks, C‑439/06, EU:C:2008:298, paragraph 44).
37


Accordingly, systems such as those at issue in the main proceedings, which are undeniably used to transport electricity at high, medium or low voltage for sale to final customers, constitute distribution systems falling within the scope of Directive 2009/72.
48


In any event, it must be noted that Member States cannot include systems, such as those at issue in the main proceedings, which fall within the scope of Directive 2009/72, in a separate category of distribution systems from the categories expressly established by that directive, with a view to granting them exemptions not provided for in the directive.
54


As the Court has repeatedly held, open third-party access to those systems, established in the first and second sentences of Article 32(1) of Directive 2009/72, is one of the essential measures which Member States are required to implement in order to bring about the internal market in electricity (see, by analogy, judgments of 22 May 2008, citiworks, C‑439/06, EU:C:2008:298, paragraph 44; of 9 October 2008, Sabatauskas and Others, C‑239/07, EU:C:2008:551, paragraphs 31, 33 and 46; and of 29 September 2016, Essent Belgium, C‑492/14, EU:C:2016:732, paragraph 76).
55


As is apparent from recital 3 of Directive 2009/72, the directive aims to achieve a fully open market which enables all consumers freely to choose their suppliers and all suppliers freely to deliver to their customers.
56


In that regard, although Article 32(1) of Directive 2009/72 leaves the Member States free to take the measures necessary to establish a system of third-party access to transmission or distribution systems, the Member States therefore having authority, in accordance with Article 288 TFEU, over the form and the methods to be used to implement such a system, the fact remains that, having regard to the importance of the principle of open access to transmission or distribution systems, that margin of discretion does not authorise them to depart from that principle except in those cases where that directive lays down exceptions or derogations (see, by analogy, judgment of 22 May 2008, citiworks, C‑439/06, EU:C:2008:298, paragraph 55).
57


Thus, it is apparent from Article 3(14) of Directive 2009/72 that Member States are permitted not to apply the provisions of Article 32(1) of that directive providing for non-discriminatory third party access to the transmission and distribution systems in so far as the application of those provisions would obstruct the performance, in law or in fact, of the public service obligations thus imposed on electricity undertakings, provided that Member States ascertain that the performance of those obligations cannot be achieved by other means which do not impact adversely on the right of access to the systems, which is one of the rights enshrined in Directive 2009/72 (see, by analogy, judgments of 22 May 2008, citiworks, C‑439/06, EU:C:2008:298, paragraph 60, and of 29 September 2016, Essent Belgium, C‑492/14, EU:C:2016:732, paragraph 91).
60


In that regard, it must also be pointed out that, although Article 32(2) of Directive 2009/72 provides that the operator of a distribution system may refuse access where it lacks the necessary capacity, on condition that duly substantiated reasons are given for such refusal, that possibility of refusing access to the system is to be assessed on a case-by-case basis and does not authorise the Member States to lay down those derogations in a general manner without, in respect of each operator, a concrete assessment of the technical incapacity of the system to meet the demand for access from third parties (see, by analogy, judgment of 22 May 2008, citiworks, C‑439/06, EU:C:2008:298, paragraph 57).
66


According to settled case-law, the general principle of equal treatment, as a general principle of EU law, requires that comparable situations must not to be treated differently and different situations must not to be treated in the same way unless such treatment is objectively justified (judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 23).