citiworks AG.
Date: 2008-05-22
21. As a preliminary point, it must be borne in mind that, although the Court does not, in a reference for a preliminary ruling, have jurisdiction to give a ruling on the compatibility of a national measure with Community law, it does have jurisdiction to supply the national court with a ruling on the interpretation of Community law so as to enable that court to determine whether such compatibility exists in order to decide the case before it (see, inter alia, Case C‑124/99 Borawitz  [2000] ECR I‑7293, paragraph 17; Case C‑60/05 WWF Italia and Others  [2006] ECR I‑5083, paragraph 18; and Case C‑257/06 Roby Profumi  [2008] ECR I‑0000, paragraph 11).
31. In accordance with established case-law, it is solely for the national court before which the 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 in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 59, and Case C‑466/04 Acereda Herrera  [2006] ECR I‑5341, paragraph 47).
32. The Court can refuse to give a preliminary ruling on a question submitted by a national court only where it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation to the actual facts of the main action or its purpose, or where the problem is hypothetical (see Bosman , paragraph 61, and Acereda Herrera , paragraph 48).
38. It is appropriate to recall that Directive 2003/54 repealed and replaced Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity (OJ 1997 L 27, p. 20).  It follows from recitals (1) and (2) in the preamble to Directive 2003/54 that it was adopted because of existing shortcomings in achieving the creation of an internal market in electricity after implementation of Directive 96/92.  The objective of Directive 2003/54 is therefore to improve the operation of that market.
40. Recitals (6) and (7) in the preamble to that directive state that, for competition to function, non-discriminatory, transparent and fairly priced network access is of paramount importance in bringing about the internal electricity market.
43. Recital (4) in the preamble to Directive 2003/54 states that a fully open market must enable all consumers freely to choose their suppliers and all suppliers freely to deliver to their customers.  As the Advocate General rightly observed in point 72 of his Opinion, these two rights are necessarily linked.  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 carry electricity to the customers.
44. It follows that open third-party access to transmission and distribution systems constitutes one of the essential measures which the Member States are required to implement in order to bring about the internal market in electricity.
45. The principle of open access applies, according to Article 20(1) of Directive 2003/54, to electricity transmission and distribution systems. Points 3 and 5 of Article 2 of that directive define the notions of ‘transmission’ and ‘distribution’. Transmission is defined 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. Distribution is the transport of electricity on high-voltage, medium voltage and low voltage distribution systems with a view to its delivery to customers.  Transmission and distribution do not include supply.  The notion of ‘supply’ is defined in point 19 of Article 2 of Directive 2003/54 as the sale of electricity to customers.
46. It follows 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, second, a distribution system is a system used to transport electricity at high, medium or low voltage for sale to wholesale or final customers.
48. With regard, first of all, to the nature of transmission and distribution systems within the meaning of Directive 2003/54 and the quantity of electricity transported on those systems, it is appropriate to note that the sole distinguishing criterion between transmission and distribution is the voltage of that electricity.
49. Within the meaning of points 3 and 5 of Article 2 of that directive, a transmission system concerns electricity at extra-high and high voltage and a distribution system ensures transmission of electricity at high, medium or low voltage. Directive 2003/54 refers to electricity consumption only in order to define the notions of ‘small isolated system’ and ‘micro isolated system’, which give rise to the grant of derogations from certain obligations laid down by the Directive.  The Community legislature did not therefore intend to exclude particular transmission or distribution systems from the scope of Directive 2003/54 by reason of their size or consumption of electricity.
55. Article 20(1) of that directive leaves the Member States free to take the measures necessary to establish a system of third-party access to transmission or distribution systems. It follows that, in accordance with Article 249 EC, the Member States have authority over the form and the methods to be used to implement such a system.  Having regard to the importance of the principle of open access to transmission or distribution systems, that margin of discretion does not, however, authorise them to depart from that principle except in those cases where Directive 2003/54 lays down exceptions or derogations.
57. Firstly, Article 20(2) of Directive 2003/54 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. This possibility of refusing access to the system is, however, 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.
60. It follows from Article 3(8) of Directive 2003/54 that the Member States may decide to restrict third-party rights of access to transmission and distribution systems in order to ensure the supply of a public electricity service.  However, in order to do so, the Member States must, on the one hand, ascertain whether an unrestricted right of access to the systems would obstruct the performance by the system operators of their public-service obligations and, on the other, determine whether that performance 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 2003/54.