Vereniging voor Energie, Milieu en Water and Others v Directeur van de Dienst uitvoering en toezicht energie.
Date: 2005-06-07
33. It should first be noted that Article 7(5) of the Directive refers to the system operator of the national electricity transmission system (judgment of 14 April 2005 in Joined Cases C-128/03 and C-129/03 AEM and AEM Torino [2005] ECR I-0000, paragraph 56).  While it would appear that the System Code established by the DTE cannot be attributed to the Netherlands operator of the electricity grid (TenneT), the fact none the less remains that the national court is questioning the Court of Justice as to the scope of that provision.
34. Within the framework of the cooperation between the Court and national courts and tribunals established by Article 234 EC, it is solely for the national court to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.  The Court can refuse a request submitted by a national court only where it is quite obvious that the ruling sought by that court on the interpretation of Community law bears no relation to the actual facts of the main action or its purpose or where the problem is general or hypothetical (see, inter alia, Case C-415/93 Bosman  [1995] ECR I-4921, paragraphs 59 to 61, Case C-369/95 Somalfruit and Camar  [1997] ECR I-6619, paragraphs 40 and 41, and Case C-36/99 Idéal tourisme  [2000] ECR I-6049, paragraph 20).
36. To the extent to which the dispute in the main proceedings relates to State measures that are not attributable to the system operator, reference should also be made to Article 16 of the Directive.  It follows from Article 16 that although, for the organisation of access to the system, Member States may choose between the negotiated access procedure and the single buyer procedure, both sets of procedure must be operated in accordance with objective, transparent and non-discriminatory criteria ( AEM and AEM Torino , cited above, paragraph 57).  Article 16 of the Directive thus prohibits Member States from organising access to the system in a discriminatory manner.
41. In interpreting a provision of Community law, it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part (see, inter alia, Case 292/82 Merck  [1983] ECR 3781, paragraph 12; Case 337/82 St. Nikolaus Brennerei  [1984] ECR 1051, paragraph 10; and Case C-223/98 Adidas  [1999] ECR I-7081, paragraph 23).
45. In the light of the foregoing, it must be concluded that Article 7(5) of the Directive is not limited to covering technical rules but must be interpreted as applying to all discrimination.
46. The same conclusion must be drawn in regard to Article 16 of the Directive.  The rule on non-discrimination laid down in that article is couched in general terms and must be read in the light of Article 3(1) of the Directive, under which Member States are required to refrain from all discrimination in regard to the rights and obligations of electricity undertakings.
47. On the question as to whether the measures in issue amount to discrimination contrary to the Directive, it should be borne in mind that the provisions of the Directive, which require that the action of the system operator and that of the State in creating access to the system should not be discriminatory, are specific expressions of the general principle of equality (see AEM and AEM Torino , paragraph 58; see also, by analogy, in regard to the second subparagraph of Article 40(3) of the EC Treaty (now, after amendment, the second subparagraph of Article 34(2) EC), Case C-280/93 Germany  v Council  [1994] ECR I-4973, paragraph 67, and, in the matter of defence against dumped imports from non-member countries, the judgment of 27 January 2005 in Case C‑422/02 P Chemi-Con (Deutschland) v Council  [2005] ECR I‑0000, paragraph 33).
48. The prohibition of discrimination, which is one of the fundamental principles of Community law, requires that comparable situations are not treated differently unless such difference in treatment is objectively justified (see, inter alia, Germany  v Council , cited above, paragraph 67).
65. Article 3(3) of the Directive allows Member States to derogate, under certain conditions, from Articles 5, 6, 17, 18 and 21 of the Directive.  It does not apply to Article 7 or to Article 16 of the Directive.  Article 3(3) of the Directive cannot therefore be relied on to justify a derogation from Articles 7(5) and 16 thereof.
73. The principle of the protection of legitimate expectations is unquestionably one of the fundamental principles of the Community (see, inter alia, Case C-104/97 P Atlanta  v European Community  [1999] ECR I-6983, paragraph 52, and Joined Cases C-37/02 and C-38/02 Di Lenardo and Dilexport [2004] ECR I-6945, paragraph 70).
74. It is settled case-law that any trader on the part of whom an institution has promoted reasonable expectations may rely on the principle of the protection of legitimate expectations.  However, if a prudent and circumspect trader could have foreseen that the adoption of a Community measure is likely to affect his interests, he cannot plead that principle if the measure is adopted (see, inter alia, Atlanta  v European Community , cited above, paragraph 52, and Di Lenardo and Dilexport , cited above, paragraph 70).
80. With regard to the principle of legal certainty, this requires in particular that rules involving negative consequences for individuals should be clear and precise and their application predictable for those subject to them (see, to this effect, Case 325/85 Ireland v Commission  [1987] ECR 5041, Case C-143/93 Van Es Douane Agenten  [1996] ECR I-431, paragraph 27; and Case C-63/93 Duff and Others  [1996] ECR I-569, paragraph 20).
81. As the Court has already ruled, an individual cannot place reliance on there being no legislative amendment whatever, but can only call into question the arrangements for the implementation of such an amendment (see, with regard to a legislative amendment removing the right to deduct value added tax in respect of certain costs connected with lettings of immovable property, Joined Cases C-487/01 and C-7/02 Gemeente Leusden and Holin Groep  [2004] ECR I-5368, paragraph 81).  In like manner, the principle of legal certainty does not require that there be no legislative amendment, requiring as it does, rather, that the legislature take account of the particular situations of traders and provide, where appropriate, adaptations to the application of the new legal rules.