Repsol Butano SA and DISA Gas SAU v Administración del Estado.
Date: 2019-04-11
38


In that regard, it should be observed that, according to settled case-law, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. With that in mind, the Court may have to reformulate the questions referred to it. The Court may also find it necessary to consider provisions of EU law to which the national court has made no reference in the wording of its question (judgment of 29 November 2018, baumgarten sports & more, C‑548/17, EU:C:2018:970, paragraph 22).
39


According to the case-law of the Court, the principle of proportionality is one of the general principles of EU law which must be observed by any national legislation which falls within the scope of EU law or which implements that law (judgment of 6 March 2014, Siragusa, C‑206/13, EU:C:2014:126, paragraph 34).
42


First, Article 15(2)(g) of Directive 2006/123 expressly classifies ‘… maximum tariffs with which the provider must comply’ as ‘requirements’ within the meaning of Article 4(7) of the directive, which are conditions affecting the freedom of establishment of service providers (see, by analogy, judgment of 23 December 2015, Hiebler, C‑293/14, EU:C:2015:843, paragraph 51). Second, the home delivery obligation imposed on certain operators on the basis of their share of the market in the bottled LPG sector constitutes ‘[an]other specific service’ within the meaning of Article 15(2)(h) of Directive 2006/123, which, according to the applicable national rules, must be supplied jointly with the main service of selling that gas.
43


Furthermore, it is quite clear from Article 2(2)(a) of Directive 2006/123, read in conjunction with recitals 17, 70 and 72 of that directive, that the rules laid down by that directive are applicable, in principle, to services of general economic interest, only non-economic services of general interest being excluded from the scope of those rules (see, to that effect, judgment of 23 December 2015, Hiebler, C‑293/14, EU:C:2015:843, paragraphs 43 and 44).
44


The requirements listed in Article 15(2) of Directive 2006/123 must be subject to evaluation by the Member States. In accordance with Article 15(1), Member States are, however, authorised to maintain or, if necessary, introduce requirements in their legal systems, on condition that they satisfy the conditions of non-discrimination, necessity and proportionality laid down in Article 15(3) (see, to that effect, judgment of 23 December 2015, Hiebler, C‑293/14, EU:C:2015:843, paragraph 54).
45


Thus, Article 15(3) of Directive 2006/123 provides that a restriction of freedom of establishment, such as that resulting from setting a maximum price for LPG and the home delivery obligation, may be justified. It requires, for that purpose, compliance with conditions designed to ensure that the restriction, first, does not discriminate on grounds of nationality, next, is justified by an overriding reason relating to the public interest and, finally, is suitable for securing the attainment of the objective pursued, does not go beyond what is necessary to attain that objective and may not be replaced by other, less restrictive measures which attain the same result (see, to that effect, judgment of 23 December 2015, Hiebler, C‑293/14, EU:C:2015:843, paragraph 55).
49


While it is for the national court to determine whether national measures are compatible with EU law, the Court may nevertheless provide that court with any helpful guidance to resolve the dispute before it (judgment of 14 February 2019, Nestrade, C‑562/17, EU:C:2019:115, paragraph 36).
51


As has also been noted in the present judgment, the natural gas sector is governed by Directive 2009/73. The aim of that directive 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, which means that the price of supply of natural gas must be fixed exclusively by the interplay of supply and demand (see, to that effect, judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraph 26).
52


Furthermore, the Court has held that in order for an obstacle resulting from a measure of State intervention in prices for the sale of natural gas to comply with the principle of proportionality, it must necessarily be of limited duration, which must not go beyond what is necessary in order to achieve the objective in the general economic interest (see, to that effect, judgment of 20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraphs 33 and 35).
54


It is true that Member States may maintain or, if necessary, introduce requirements of the type referred to in Article 15(2) of Directive 2006/123, on condition that those requirements satisfy the conditions of non-discrimination, necessity and proportionality laid down in Article 15(3) (judgment of 16 June 2015, Rina Services and Others, C‑593/13, EU:C:2015:399, paragraph 33).
56


In that context, it is for the referring court to examine whether and to what extent the relevant national law requires the competent authorities to undertake a periodic re-examination, at close intervals, of the need for them to intervene and the manner of their doing so, having regard to the development of the relevant market (judgment of 20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraph 35).
59


Furthermore, it is apparent from the file before the Court that the applicable national law provides for a mechanism to adjust the maximum sale price of LPG at regular intervals, so that it reflects the evolution of costs, which is a matter for the referring court to verify. As the Court has held, such a mechanism, which relates only to a periodical review of the level of those tariffs and does not concern the need for or the terms of the State intervention on prices, cannot be equated to a limitation of the duration of the measure at issue (judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraph 62).
62


Finally, the requirement of proportionality must also be assessed with regard to the scope ratione personae of the measure in question and, more particularly, its beneficiaries (judgment of 20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraph 39).
64


Moreover, it is common ground that domestic consumers benefit from the measures at issue in the main proceedings regardless of whether they are socially vulnerable or live in areas that are remote or far from LPG distribution points. Although that fact may, in principle, be an indication that those measures go beyond what is necessary in order to attain their objective, the fact remains that the principle of proportionality does not necessarily prevent the measures at issue from being applied to all domestic consumers (see, to that effect, judgment of 20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraph 40). The referring court must examine, in that context, the possibility and the appropriateness of adopting measures aimed more at vulnerable consumers. In that regard, the arguments of the applicants in the main proceedings and of the Spanish Government, relating to the feasibility of adopting alternative measures and relating to the possible economic effects of such measures, are relevant.