„Elektrorazpredelenie Yug“ EAD v Komisia za energiyno i vodno regulirane (KEVR).
Date: 2019-10-17
31


It is appropriate to note in that regard 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 (see, inter alia, judgment of 26 October 2017, Balgarska energiyna borsa, C‑347/16, EU:C:2017:816, paragraph 30).
32


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. 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 (see, inter alia, judgment of 26 October 2017, Balgarska energiyna borsa, C‑347/16, EU:C:2017:816, paragraph 31).
39


It is apparent from recital 3 of Directive 2009/72 that the text aims, in particular, to achieve a fully open market, which enables all consumers freely to choose their suppliers and all suppliers freely to deliver to their customers in order to bring about completion of the internal market in electricity (judgment of 28 November 2018, Solvay Chimica Italia and Others, C‑262/17, C‑263/17 and C‑273/17, EU:C:2018:961, paragraphs 36 and 55).
40


In that context, non-discriminatory, transparent and fairly priced access to the distribution and the transmission systems is necessary for competition to function and is of paramount importance (see, by analogy, judgments of 22 May 2008, citiworks, C‑439/06, EU:C:2008:298, paragraph 40, and of 9 October 2008, Sabatauskas and Others, C‑239/07, EU:C:2008:551, paragraph 31).
41


In particular, free access to the distribution and transmission systems for third parties, guaranteed by the first and second sentences of Article 32(1) of Directive 2009/72 constitutes, as the Court has repeatedly acknowledged, one of the essential measures that Member States are required to implement for bringing about the completion of the internal market in electricity (judgment of 28 November 2018, Solvay Chimica Italia and Others, C‑262/17, C‑263/17 and C‑273/17, EU:C:2018:961, paragraph 54 and the case-law cited).
43


The concepts of distribution system and transmission system are not defined as such in Directive 2009/72. However, Article 2(3) of the directive defines the concept of ‘transmission’ as the transport of electricity on the extra high-voltage and high-voltage interconnected system with a view to its delivery to final customers or to distributors, but excludes ‘supply’ itself. Article 2(5) of the directive, for its part, defines the concept of ‘distribution’ as the transport of electricity on high-voltage, medium-voltage and low-voltage distribution systems with a view to its delivery to customers, but excludes ‘supply’ itself. The concept of ‘supply’ must be understood, according to Article 2(19) of the directive, as meaning the sale of electricity to customers (see, by analogy, judgment of 22 May 2008, citiworks, C‑439/06, EU:C:2008:298, paragraph 45, and, to that effect, judgment of 28 November 2018, Solvay Chimica Italia and Others, C‑262/17, C‑263/17 and C‑273/17, EU:C:2018:961, paragraph 28).
44


Since those definitions make no express reference to the law of the Member States, the need for a uniform application of EU law and the principle of equality require that the terms of those definitions must be given an autonomous and uniform interpretation throughout the European Union (see, inter alia, judgment of 11 April 2019, Tarola, C‑483/17, EU:C:2019:309, paragraph 36).
45


It is clear from those definitions that, first, a transmission system is an interconnected system used to transport electricity at extra-high and high voltage for sale to final customers or to distributors and, secondly, a distribution system is a system used to transport electricity at high, medium or low voltage for sale to wholesale or final customers (see, by analogy, judgment of 22 May 2008, citiworks, C‑439/06, EU:C:2008:298, paragraph 46, and judgment of 28 November 2018, Solvay Chimica Italia and Others, C‑262/17, C‑263/17 and C‑273/17, EU:C:2018:961, paragraph 29).
46


It follows, first of all, that, with regard to the nature of transmission and distribution systems within the meaning of Directive 2009/72 and the quantity of electricity transported on those systems, the sole relevant distinguishing criterion for determining whether a system is a transmission system or a distribution system within the meaning of that directive is the voltage of the electricity transported on those systems (see, by analogy, judgment of 22 May 2008, citiworks, C‑439/06, EU:C:2008:298, paragraph 48, and of 28 November 2018, Solvay Chimica Italia and Others, C‑262/17, C‑263/17 and C‑273/17, EU:C:2018:961, paragraph 30).
47


The Court has already made it clear that neither the date on which the system was put in place nor the fact that it is intended for self-consumption and operated by a private entity, to which a limited number of generation and consumption units are connected, nor its size or consumption of electricity constitute relevant criteria in that regard, since the EU legislature did not intend to exclude particular transmission or distribution systems from the scope of the directive by reason of those criteria (see, by analogy, judgment of 22 May 2008, citiworks, C‑439/06, EU:C:2008:298, paragraph 49, and, to that effect, judgment of 28 November 2018, Solvay Chimica Italia and Others, C‑262/17, C‑263/17 and C‑273/17, EU:C:2018:961, paragraphs 31 and 35).
49


It follows that systems whose function is to transport electricity at extra-high and high voltage for sale to final customers or to distributors, on the one hand, and at high, medium or low voltage for sale to wholesale or final customers, on the other hand, must be considered to be transmission systems or distribution systems, respectively, and thus caught by Directive 2009/72 (see, to that effect, judgment of 28 November 2018, Solvay Chimica Italia and Others, C‑262/17, C‑263/17 and C‑273/17, EU:C:2018:961, paragraph 37).
50


It is true that, since its objective is to establish gradually a fully operational internal market in electricity, Directive 2009/72 has not brought about exhaustive harmonisation of the rules relating to, inter alia, the transmission and distribution of electricity (see, to that effect, judgments of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 86, and of 6 December 2018, FENS, C‑305/17, EU:C:2018:986, paragraphs 23 to 25).
60


Moreover, if, as pointed out by the referring court, such a distinguishing criterion stemmed, inter alia, from the interpretation of that legislation by a majority of the national courts, it is important to recall that, according to the Court’s settled case-law, the Member States’ obligation arising from a directive to achieve the result envisaged by that directive and their duty, under Article 4(3) TEU, to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation are binding on all the authorities of the Member States, including, for matters within their jurisdiction, the courts (see judgment of 14 May 2019, CCOO, C‑55/18, EU:C:2019:402, paragraph 68 and the case-law cited).
61


It follows that, in applying national law, national courts called upon to interpret that law are required to consider the whole body of rules of national law and to apply methods of interpretation that are recognised by those rules in order to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and, consequently, to comply with the third paragraph of Article 288 TFEU (judgment of 14 May 2019, CCOO, C‑55/18, EU:C:2019:402, paragraph 69 and the case-law cited).
62


The requirement to interpret national law in conformity with EU law includes the obligation for national courts to change their established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive (judgment of 14 May 2019, CCOO, C‑55/18, EU:C:2019:402, paragraph 70 and the case-law cited).
63


It is also appropriate to note that, when a Member State decides, as the Republic of Bulgaria did, for the purpose of separating the operation of the electricity transmission system from the generation and supply of electricity, to make use of the right to choose laid down in Article 9(8)(b) of Directive 2009/72, which allows a Member State to decide not to apply Article 9(1) of the directive, on ownership unbundling, in order to designate an independent transmission operator, 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(1)(a) thereof (see, to that effect, judgment of 26 October 2017, Balgarska energiyna borsa, C‑347/16, EU:C:2017:816, paragraphs 32, 33 and 41).
64


That last provision requires explicitly that independent transmission operators must own the assets that are necessary for the electricity transmission activities, including the transmission system, in particular in order to ensure, as follows from recitals 16, 17 and 19 of Directive 2009/72, the complete and effective independence of those operators from activities of generation and supply (see, to that effect, judgment of 26 October 2017, Balgarska energiyna borsa, C‑347/16, EU:C:2017:816, paragraph 34).
72


In that regard, it is appropriate to recall that the Court has already recognised that the Member States may not include systems that are caught by Directive 2009/72 in a category of systems different from that expressly provided for in the directive, in particular in order to grant them exemptions not available under that text (see, to that effect, judgment of 28 November 2018, Solvay Chimica Italia and Others, C 262/17, C‑263/17 and C‑273/17, EU:C:2018:961, paragraph 48).
79


That freedom of access is closely linked to the consumers’ freedom to choose their suppliers and to the suppliers’ right to supply their goods freely to their customers, meaning that, in order for customers to be able to choose freely their suppliers, it is necessary that suppliers should have the right to access the different transmission and distribution systems which bring electricity to the customers (see, by analogy, judgments of 22 May 2008, citiworks, C‑439/06, EU:C:2008:298, paragraph 43, and of 9 October 2008, Sabatauskas and Others, C‑239/07, EU:C:2008:551, paragraphs 33 and 43).
80


According to Article 32(1) of Directive 2009/72, network access should be based on objective, non-discriminatory and transparent criteria and on tariffs published prior to their entry into force, and it should not be discretionary (see, by analogy, judgment of 9 October 2008, Sabatauskas and Others, C‑239/07, EU:C:2008:551, paragraph 46).
81


It follows that that provision leaves the Member States free to take the necessary measures in that regard, since they have authority, under Article 288 TFEU, over the form and the methods to be used to implement a system of third-party access to transmission or distribution systems, provided that they comply with the principle of free access to those systems, except where the directive lays down exceptions or derogations (see, to that effect, judgment of 28 November 2018, Solvay Chimica Italia and Others, C‑262/17, C‑263/17 and C‑273/17, EU:C:2018:961, paragraph 56 and the case-law cited).
82


Moreover, it must be recalled that the Member States’ obligations set out in Article 32(1) of Directive 2009/72 are only in respect of the access to the systems and not the connection thereto, meaning the physical connection to the systems (see, to that effect, judgment of 9 October 2008, Sabatauskas and Others, C‑239/07, EU:C:2008:551, paragraph 42).
83


The customers’ freedom to choose their suppliers, enshrined in that provision, is guaranteed whether the supplier connects them to a transmission system or whether that connection connects them to a distribution system (judgment of 9 October 2008, Sabatauskas and Others, C‑239/07, EU:C:2008:551, paragraph 43).
84


It follows that Member States retain a certain flexibility in steering system users towards one or another type of system and, therefore, in determining the type of system on which the connection is to be made, provided, however, that they do so in accordance with non-discriminatory and objective considerations. Users are thus not free to choose, at their discretion, the type of system to which they wish to connect (see, to that effect, judgment of 9 October 2008, Sabatauskas and Others, C‑239/07, EU:C:2008:551, paragraphs 46 to 49).