Association nationale des opérateurs détaillants en énergie (ANODE) v Premier ministre and Others.
Date: 2016-09-07
26


Although it does not follow from any provision of Directive 2009/73 that the price of supply of natural gas must be fixed exclusively by the play of supply and demand, that requirement follows from the very purpose and general scheme of the directive, the aim of which 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 (see, to that effect, judgment of 10 September 2015, Commission v Poland, C‑36/14, not published, EU:C:2015:570, paragraph 45).
27


It should be recalled here that a public measure of intervention in sale prices of natural gas is a measure which by its very nature constitutes an obstacle to the achievement of an operational internal market in gas (see judgment of 20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraph 35).
35


It should be noted, as a preliminary point, that the guidelines on the permissibility of State intervention consisting in the regulation of prices, set out in the judgment of 20 April 2010 in Federutility and Others (C‑265/08, EU:C:2010:205), with respect to Article 3(2) of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57), are also valid with respect to Article 3(2) of Directive 2009/73, as that provision has not been amended in so far as it applies to the main proceedings (see judgment of 10 September 2015, Commission v Poland, C‑36/14, not published, EU:C:2015:570, paragraph 53).
36


Thus although State intervention in the fixing of the price of supply of natural gas to the final consumer constitutes an obstacle to the achievement of a competitive natural gas market, that intervention may none the less be accepted within the framework of Directive 2009/73 if three conditions are satisfied. First, the intervention must pursue an objective of general economic interest, secondly, it must comply with the principle of proportionality, and, thirdly, it must lay down public service obligations that are clearly defined, transparent, non-discriminatory and verifiable, and guarantee equal access of EU gas undertakings to consumers (see, to that effect, judgments of20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraphs 20 to 22 and 47, and 10 September 2015, Commission v Poland, C‑36/14, not published, EU:C:2015:570, paragraphs 51 to 53).
38


Directive 2009/73 gives no definition of the condition relating to general economic interest, but the reference in Article 3(2) of that directive both to that condition and to Article 106 TFEU, which concerns undertakings entrusted with the management of a service of general economic interest, means that that condition should be interpreted in the light of that provision of the Treaty (see, to that effect, judgment of 20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraph 26).
39


The Court has pointed out that Article 106(2) TFEU provides, first, that undertakings entrusted with the operation of services of general economic interest are subject to the rules on competition in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them, and, secondly, that the development of trade must not be affected to an extent contrary to the interests of the Union (judgment of 20 April 2010 in Federutility and Others, C‑265/08, EU:C:2010:205, paragraph 27).
40


As the Advocate General observes in point 44 of his Opinion, the interpretation of the condition relating to general economic interest must be set in the new context following from the entry into force of the Treaty of Lisbon, which includes, as well as Article 106 TFEU, Article 14 TFEU, Protocol (No 26) on services of general interest, annexed to the EU Treaty, as amended by the Treaty of Lisbon, and the FEU Treaty (‘Protocol No 26’), and the Charter of Fundamental Rights of the European Union, which has acquired the same legal value as the Treaties, in particular Article 36 of the Charter on access to services of general economic interest.
41


In particular, Protocol No 26 expressly recognises the essential role and the wide discretion of the authorities of the Member States in providing, commissioning and organising services of general economic interest.
43


In that context, Article 106(2) TFEU aims to reconcile the Member States’ interest in using certain undertakings as an instrument of economic or social policy with the EU’s interest in ensuring compliance with the rules on competition and preserving the unity of the internal market (see, to that effect, judgments of 21 September 1999, Albany, C‑67/96, EU:C:1999:430, paragraph 103, and 20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraph 28).
44


The Court has explained that the Member States are entitled, while complying with EU law, to define the scope and organisation of their services of general economic interest. They may in particular take account of objectives pertaining to their national policy (see, to that effect, judgments of 21 September 1999, Albany, C‑67/96, EU:C:1999:430, paragraph 104, and 20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraph 29).
45


In this respect, the Court has stated that, in the assessment which the Member States must carry out, in accordance with Directive 2009/73, to determine whether, in the general economic interest, public service obligations should be imposed on undertakings operating in the gas sector, it is for the Member States to reconcile the objective of liberalisation with the other objectives pursued by the directive (see, to that effect, judgment of 20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraph 32).
48


As the Advocate General observes in point 56 of his Opinion, Article 194(1)(b) TFEU identifies security of energy supply in the EU as one of the fundamental objectives of EU policy in the field of energy. As regards specifically the field of natural gas, it may be seen from several recitals and articles of Directive 2009/73 that the directive expressly envisages security of energy supply as one of its basic purposes.
52


It follows that EU law, in particular Article 3(2) of Directive 2009/73, read in the light of Articles 14 TFEU and 106 TFEU, allows the Member States to assess whether, in the general economic interest, public service obligations relating to the price of supply of natural gas should be imposed on undertakings operating in the gas sector, in particular in order to ensure security of supply and territorial cohesion, provided that the other conditions laid down by that directive are satisfied.
53


As regards the second condition mentioned in paragraph 36 above, compliance with the principle of proportionality, it follows from the very wording of Article 106 TFEU that the public service obligations which Article 3(2) of Directive 2009/73 allows to be imposed on undertakings must comply with the principle of proportionality and, therefore, that those obligations may, from 1 July 2007, compromise the freedom to determine the price of supply of natural gas only in so far as is necessary to achieve the objective of general economic interest which they pursue and, consequently, for a period that is necessarily limited in time (see, to that effect, judgment of 20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraph 33).
54


While it is for the referring court to assess in the main proceedings whether that requirement of proportionality is satisfied, it is, however, for the Court to provide that court, on the basis of the information available, with all the necessary indications for that purpose from the point of view of EU law (see, to that effect, judgment of 20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraph 34).
55


Compliance with the principle of proportionality means, first, that the measure in question must be appropriate for securing the objective of general economic interest which it pursues (judgment of 21 December 2011, Enel Produzione, C‑242/10, EU:C:2011:861, paragraph 55).
58


While it cannot be ruled out that legislation introducing an obligation to offer and supply natural gas at a determined price may be regarded as capable of ensuring security of supply, it is for the referring court, in the absence of precise elements of analysis put before the Court, to determine whether that is the case with respect to the legislation at issue in the main proceedings.
60


Secondly, the Court has held that the duration of State intervention in prices must be limited to what is strictly necessary for achieving the objective pursued (judgment of 20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraphs 33 and 35).
62


Fixing a maximum duration for the tariffs adopted cannot constitute such a limit, in so far as that mechanism relates only to a periodical review of the level of those tariffs and does not concern the need for and terms of the public intervention in prices according to developments in the gas market.
64


Thirdly, the method of intervention used must not go beyond what is necessary to achieve the objective of general economic interest being pursued (judgment of 20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraph 36).
67


Fourthly, the requirement of necessity 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).
68


In this respect, it must be examined to what extent the State intervention at issue in the main proceedings benefits individuals and undertakings respectively as final consumers of gas.
71


With respect in particular to whether the legislation at issue in the main proceedings is non-discriminatory, as the Advocate General observes in point 82 of his Opinion, Article 3(2) of Directive 2009/73 allows public service obligations to be imposed generally ‘on undertakings operating in the gas sector’, not on certain undertakings specifically. Moreover, Article 3(1) of the directive provides that the Member States ‘shall not discriminate’ between natural gas undertakings ‘as regards their rights or obligations’. In this framework, the system of designating undertakings responsible for public service obligations may not exclude a priori any of the undertakings operating in the gas distribution sector (see, to that effect, judgment of 19 June 2008 in Commission v France, C‑220/07, not published, EU:C:2008:354, paragraph 31).