Balgarska energiyna borsa AD (BEB) v Komisia za energiyno i vodno regulirane (KEVR).
Date: 2017-10-26
30


It must be recalled here that, according to consistent case-law of the Court, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (judgment of 22 September 2016, Microsoft Mobile Sales International and Others, C‑110/15, EU:C:2016:717, paragraph 18).
31


The presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases, 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 (judgment of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraph 34). The purpose of a request for a preliminary ruling is not to enable advisory opinions on general or hypothetical questions to be delivered, but rather to meet the need for the effective resolution of a dispute concerning EU law (judgment of 10 November 2016, Private Equity Insurance Group, C‑156/15, EU:C:2016:851, paragraph 56).
32


In the present case, it is clear from the material before the Court, including the referring court’s answer to a request by the Court for information, that, for the purpose of separating the operation of the electricity transmission system from the generation and supply of electricity in Bulgaria, an independent transmission system operator was established.
33


The right of Member States to choose to install such an independent transmission system operator is laid down in Article 9(8)(b) of Directive 2009/72. In accordance with that provision, where on 3 September 2009 the transmission system belongs to a vertically integrated undertaking, a Member State may decide not to apply Article 9(1) of the directive, on the unbundling of ownership. That choice entails an obligation for the Member State concerned to comply with the requirements of Chapter V of the directive, which comprises Articles 17 to 23, on independent transmission system operators.
34


In view of the doubts expressed by the referring court as to the independence of ESO, it must be observed that it follows from recitals 16, 17 and 19 and Articles 47(3) of Directive 2009/72 that the unbundling requirements in Chapter V of the directive are intended to ensure the complete and effective independence of transmission system operators from activities of generation and supply.
41


However, as may be seen from paragraphs 32 and 33 above, the unbundling of the operation of the electricity transmission system from electricity generation and supply activities was done in Bulgaria by making use of the alternative option in Article 9(8)(b) of Directive 2009/72 of establishing an independent transmission system operator.
46


As is apparent from recital 11 of that directive, the unbundling of ownership implies the designation of the network owner as the system operator and its independence from any supply and production interests.
52


In this respect, while it is true that Articles 101 and 102 TFEU are concerned solely with the conduct of undertakings and not with laws or regulations emanating from Member States, those articles, read in conjunction with Article 4(3) TEU, which lays down a duty of cooperation, nonetheless require Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (judgment of 8 December 2016, Eurosaneamientos and Others, C‑532/15 and C‑538/15, EU:C:2016:932, paragraph 34).
53


In addition, Article 101 TFEU and Article 4(3) TEU are infringed where a Member State requires or encourages the adoption of agreements, decisions or concerted practices contrary to Article 101 TFEU or reinforces their effects, or where it divests its own rules of the character of legislation by delegating to private economic operators responsibility for taking decisions affecting the economic sphere (judgment of 8 December 2016, Eurosaneamientos and Others, C‑532/15 and C‑538/15, EU:C:2016:932, paragraph 35).
54


Furthermore, it follows from the Court’s case-law that a Member State will be in breach of the prohibitions laid down by Articles 102 and 106(1) TFEU if an undertaking to which it grants special or exclusive rights is led, merely by exercising the rights conferred on it, to abuse its dominant position or where those rights are liable to create a situation in which the undertaking is led to commit such abuses. On the other hand, the mere creation of a dominant position through the grant of special or exclusive rights within the meaning of Article 106(1) TFEU is not in itself incompatible with Article 102 TFEU (see, to that effect, judgment of 2 July 2015, Gullotta and Farmacia di Gullotta Davide & C., C‑497/12, EU:C:2015:436, paragraph 23).
55


In this context, in accordance with the Court’s case-law which states that the Court may have to reformulate the questions referred to it so as to provide the national court with an answer which will be of use to it and enable it to determine the case before it (see, to that effect, judgment of 12 September 2013, Konstantinides, C‑475/11, EU:C:2013:542, paragraph 42), the sixth question referred should be understood as relating to Articles 101 and 102 TFEU read in conjunction with Article 4(3) TEU and Article 106(1) TFEU.
56


However, the need to arrive at an interpretation of EU law which will be of use to the referring court requires that court to define the factual and legislative context of the questions it is asking, or at the very least to explain the factual circumstances on which those questions are based (judgment of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken, C‑514/12, EU:C:2013:799, paragraph 17). In the procedure established by Article 267 TFEU, the Court is empowered to give rulings on the interpretation of EU legislation only on the basis of the facts which the national court puts before it (judgment of 5 December 2013, Nordecon and Ramboll Eesti, C‑561/12, EU:C:2013:793, paragraph 28).
58


It must be emphasised that the information provided in orders for reference serves not only to enable the Court to give useful answers but also to ensure that the governments of the Member States and other interested parties have a proper opportunity to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union (judgment of 27 November 2012, Pringle, C‑370/12, EU:C:2012:756, paragraph 85).
59


The requirements concerning the content of a request for a preliminary ruling are expressly set out in Article 94 of the Court’s Rules of Procedure, of which the national court should, in the context of the cooperation instituted by Article 267 TFEU, be aware and which it is bound to observe scrupulously (judgment of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 19).