1 These requests for a preliminary ruling concern the interpretation of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22), of Article 13(2) of Directive 2006/32/EC of the European Parliament and of the Council of 5 April 2006 on energy end-use efficiency and energy services and repealing Council Directive 93/76/EEC (OJ 2006 L 114, p. 64), of Articles 5 and 27 of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64), and of Article 10(1) of Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC (OJ 2012 L 315, p. 1).
2 The requests were made in two sets of proceedings between, first, ‘EVN Bulgaria Toplofikatsia’ EAD (‘EVN’) and Nikolina Stefanova Dimitrova (C‑708/17) and, second, ‘Toplofikatsia Sofia’ EAD and Mitko Simeonov Dimitrov (C‑725/18), concerning the payment of bills for the consumption of thermal energy by the internal installation in buildings in co-ownership.
3 Article 3(2) of Directive 2005/29 provides: ‘This Directive is without prejudice to contract law and, in particular, to the rules on the validity, formation or effect of a contract.’
4 Article 5 of that directive provides: ‘1. Unfair commercial practices shall be prohibited. … 5. Annex I contains the list of those commercial practices which shall in all circumstances be regarded as unfair. …’
5 Annex I to that directive, headed ‘Commercial practices which are in all circumstances considered unfair’, includes: ‘Aggressive selling practices … (29) Demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer except where the product is a substitute supplied in conformity with Article 7(3) of Directive 97/7/EC [of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19)] (inertia selling).’
6 Recitals 14 and 60 of Directive 2011/83 state: ‘(14) This Directive should not affect national law in the area of contract law for contract law aspects that are not regulated by this Directive. Therefore, this Directive should be without prejudice to national law regulating for instance the conclusion or the validity of a contract (for instance in the case of lack of consent). Similarly, this Directive should not affect national law in relation to the general contractual legal remedies, the rules on public economic order, for instance rules on excessive or extortionate prices, and the rules on unethical legal transactions. … (60) Since inertia selling, which consists of unsolicited supply of goods or provision of services to consumers, is prohibited by Directive [2005/29] but no contractual remedy is provided therein, it is necessary to introduce in this Directive the contractual remedy of exempting the consumer from the obligation to provide any consideration for such unsolicited supply or provision.’
7 Article 2 of that directive, entitled ‘Definitions’, provides: ‘For the purposes of this Directive, the following definitions shall apply: (1) “consumer” means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession; …’
8 Article 3 of that directive provides: ‘1. This Directive shall apply, under the conditions and to the extent set out in its provisions, to any contract concluded between a trader and a consumer. It shall also apply to contracts for the supply of water, gas, electricity or district heating, including by public providers, to the extent that these commodities are provided on a contractual basis. … 5. This Directive shall not affect national general contract law such as the rules on the validity, formation or effect of a contract, in so far as general contract law aspects are not regulated in this Directive. …’
9 Article 27 of the same directive, headed ‘Inertia selling’, states: ‘The consumer shall be exempted from the obligation to provide any consideration in cases of unsolicited supply of goods, water, gas, electricity, district heating or digital content or unsolicited provision of services, prohibited by Article 5(5) and point 29 of Annex I to Directive [2005/29]. In such cases, the absence of a response from the consumer following such an unsolicited supply or provision shall not constitute consent.’
10 Article 28(2) of Directive 2011/83 provides that ‘provisions of this Directive shall apply to contracts concluded after 13 June 2014’.
11 Recitals 1, 12, 20 and 29 of Directive 2006/32 state: ‘(1) In the Community there is a need for improved energy end-use efficiency, managed demand for energy and promotion of the production of renewable energy, as there is relatively limited scope for any other influence on energy supply and distribution conditions in the short to medium term, either through the building of new capacity or through the improvement of transmission and distribution. This Directive thus contributes to improved security of supply. … (12) This Directive requires action to be undertaken by the Member States, with the fulfilment of its objectives depending on the effects that such action has on the final consumers of energy. The end result of Member States’ action is dependent on many external factors which influence the behaviour of consumers as regards their energy use and their willingness to implement energy saving methods and use energy saving devices. Therefore, even though Member States commit themselves to making efforts to achieve the target figure of 9%, the national energy savings target is indicative in nature and entails no legally enforceable obligation for Member States to achieve it. … (20) Energy distributors, distribution system operators and retail energy sales companies can improve energy efficiency in the Community if the energy services they market include efficient end-use, such as indoor thermal comfort, domestic hot water, refrigeration, product manufacturing, illumination and motive power. Profit maximisation for energy distributors, distribution system operators and retail energy sales companies thus becomes more closely related to selling energy services to as many customers as possible than to selling as much energy as possible to each customer. Member States should endeavour to avoid any distortion of competition in this area, in order to guarantee a level playing field between all energy service providers; they can, however, delegate this task to the national regulator. … (29) In order to enable final consumers to make better-informed decisions as regards their individual energy consumption, they should be provided with a reasonable amount of information thereon and with other relevant information, such as information on available energy efficiency improvement measures, comparative final consumer profiles or objective technical specifications for energy-using equipment, which may include “Factor Four” or similar equipment. … …’
12 Article 1 of that directive reads as follows: ‘The purpose of this Directive is to enhance the cost-effective improvement of energy end-use efficiency in the Member States by: (a) providing the necessary indicative targets as well as mechanisms, incentives and institutional, financial and legal frameworks to remove existing market barriers and imperfections that impede the efficient end use of energy; (b) creating the conditions for the development and promotion of a market for energy services and for the delivery of other energy efficiency improvement measures to final consumers.’
13 Article 13(1) and (2) of the directive provides: ‘1. Member States shall ensure that, in so far as it is technically possible, financially reasonable and proportionate in relation to the potential energy savings, final customers for electricity, natural gas, district heating and/or cooling and domestic hot water are provided with competitively priced individual meters that accurately reflect the final customer’s actual energy consumption and that provide information on actual time of use. Where an existing meter is replaced, such competitively priced individual meters shall always be provided, unless this is technically impossible or not cost-effective in relation to the estimated potential savings in the long term. When a new connection is made in a new building or a building undergoes major renovations, as set out in Directive 2002/91/EC [of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings (OJ 2003 L 1, p. 65)], such competitively priced individual meters shall always be provided. 2. Member States shall ensure that, where appropriate, billing performed by energy distributors, distribution system operators and retail energy sales companies is based on actual energy consumption, and is presented in clear and understandable terms. Appropriate information shall be made available with the bill to provide final customers with a comprehensive account of current energy costs. Billing on the basis of actual consumption shall be performed frequently enough to enable customers to regulate their own energy consumption.’
14 Under Article 27 of Directive 2012/27, Directive 2006/32 was repealed with effect from 5 June 2014, subject to some exceptions.
15 Recitals 8 and 20 of Directive 2012/27 state: ‘(8) On 8 March 2011, the Commission adopted its Communication on an Energy Efficiency Plan 2011. The Communication confirmed that the Union is not on track to achieve its energy efficiency target. This is despite the progress in national energy efficiency policies outlined in the first National Energy Efficiency Action Plans submitted by Member States in fulfilment of the requirements of Directive [2006/32]. Initial analysis of the second Action Plans confirms that the Union is not on track. To remedy that, the Energy Efficiency Plan 2011 spelled out a series of energy efficiency policies and measures covering the full energy chain, including energy generation, transmission and distribution; the leading role of the public sector in energy efficiency; buildings and appliances; industry; and the need to empower final customers to manage their energy consumption. … … (20) An assessment of the possibility of establishing a ‘white certificate’ scheme at Union level has shown that, in the current situation, such a system would create excessive administrative costs and that there is a risk that energy savings would be concentrated in a number of Member States and not introduced across the Union. The objective of such a Union-level scheme could be better achieved, at least at this stage, by means of national energy efficiency obligation schemes for energy utilities or other alternative policy measures that achieve the same amount of energy savings. It is appropriate for the level of ambition of such schemes to be established in a common framework at Union level while providing significant flexibility to Member States to take fully into account the national organisation of market actors, the specific context of the energy sector and final customers’ habits. The common framework should give energy utilities the option of offering energy services to all final customers, not only to those to whom they sell energy. This increases competition in the energy market because energy utilities can differentiate their product by providing complementary energy services. The common framework should allow Member States to include requirements in their national scheme that pursue a social aim, in particular in order to ensure that vulnerable customers have access to the benefits of higher energy efficiency. Member States should determine, on the basis of objective and non-discriminatory criteria, which energy distributors or retail energy sales companies should be obliged to achieve the end-use energy savings target laid down in this Directive. …’
16 Article 1(1) of Directive 2012/27 is worded as follows: ‘This Directive establishes a common framework of measures for the promotion of energy efficiency within the Union in order to ensure the achievement of the Union’s 202020% headline target on energy efficiency and to pave the way for further energy efficiency improvements beyond that date. It lays down rules designed to remove barriers in the energy market and overcome market failures that impede efficiency in the supply and use of energy, and provides for the establishment of indicative national energy efficiency targets for 2020.’
17 Article 9 of that directive provides: ‘1. Member States shall ensure that, in so far as it is technically possible, financially reasonable and proportionate in relation to the potential energy savings, final customers for electricity, natural gas, district heating, district cooling and domestic hot water are provided with competitively priced individual meters that accurately reflect the final customer’s actual energy consumption and that provide information on actual time of use. … 3. Where heating and cooling or hot water are supplied to a building from a district heating network or from a central source servicing multiple buildings, a heat or hot water meter shall be installed at the heating exchanger or point of delivery. In multi-apartment and multi-purpose buildings with a central heating/cooling source or supplied from a district heating network or from a central source serving multiple buildings, individual consumption meters shall also be installed by 31 December 2016 to measure the consumption of heat or cooling or hot water for each unit where technically feasible and cost-efficient. Where the use of individual meters is not technically feasible or not cost-efficient, to measure heating, individual heat cost allocators shall be used for measuring heat consumption at each radiator, unless it is shown by the Member State in question that the installation of such heat cost allocators would not be cost-efficient. In those cases, alternative cost-efficient methods of heat consumption measurement may be considered. Where multi-apartment buildings are supplied from district heating or cooling, or where own common heating or cooling systems for such buildings are prevalent, Member States may introduce transparent rules on the allocation of the cost of thermal or hot water consumption in such buildings to ensure transparency and accuracy of accounting for individual consumption. Where appropriate, such rules shall include guidelines on the way to allocate costs for heat and/or hot water that is used as follows: (a) hot water for domestic needs; (b) heat radiated from the building installation for the purpose of heating the common areas (where staircases and corridors are equipped with radiators); (c) for the purpose of heating apartments.’
18 The first paragraph of Article 10(1) of that directive provides: ‘Where final customers do not have smart meters as referred to in Directives 2009/72/EC [of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55)] and 2009/73/EC [of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (OJ 2009 L 211, p. 94)], Member States shall ensure, by 31 December 2014, that billing information is accurate and based on actual consumption, in accordance with point 1.1 of Annex VII, for all the sectors covered by this Directive, including energy distributors, distribution system operators and retail energy sales companies, where this is technically possible and economically justified.’
19 In accordance with the first subparagraph of Article 27(1) of Directive 2012/27: ‘Directive [2006/32] is repealed from 5 June 2014, except for Article 4(1) to (4) thereof and Annexes I, III and IV thereto, without prejudice to the obligations of the Member States relating to the time limit for its transposition into national law. Article 4(1) to (4) of, and Annexes I, III and IV to Directive [2006/32] shall be repealed with effect from 1 January 2017.’
20 The first subparagraph of Article 28(1) of Directive 2012/27 is worded as follows: ‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 5 June 2014.’
21 Annex VII of that directive, entitled ‘Minimum requirements for billing and billing information based on actual consumption of electricity and gas’, provides in point 1.1.: ‘In order to enable final customers to regulate their own energy consumption, billing should take place on the basis of actual consumption at least once a year, and billing information should be made available at least quarterly, on request or where the consumers have opted to receive electronic billing or else twice yearly. Gas used only for cooking purposes may be exempted from this requirement.’
22 The Zakon za energetikata (Law on energy) of 9 December 2003 (DV no 107, of 9 December 2003) in the version applicable in the main proceedings, contains the following provisions: ‘133. (2) The installations of customers in a building in co-ownership are connected with the written consent of owners representing at least two-thirds of the ownership of the building in co-ownership. … 139. (1) The allocation of the consumption of thermal energy in a building in co-ownership shall be made according to a system for consumption allocation. … 140. (1) The allocation of thermal energy consumption between customers in a building in co-ownership is made by means of: … 2. devices for the allocation of thermal energy consumption, namely individual heat cost allocators meeting the standards in force in the country or individual thermal meters; … (3) The internal installations for the heating and hot water of the building are communal parts of the building in co-ownership. … 142. (1) Thermal energy for heating a building in co-ownership is the difference between the total quantity of thermal energy for distribution within the building in co-ownership and the quantity of thermal energy for hot water, determined in accordance with Article 141(1). (2) The thermal energy for heating a building in co-ownership is subdivided into heat emitted by the internal system, thermal energy for heating the communal areas and thermal energy for heating private properties. … 149a. (1) Thermal energy customers in a building in co-ownership may purchase thermal energy from a supplier selected with the written consent of co-owners representing at least two-thirds of the ownership of the building in co-ownership. … 153. (1) All owners and holders of a right in rem over the use of property in a building in co-ownership connected to the subscriber substation or to an independent branch thereof are thermal energy customers and are required to install thermal energy consumption allocation devices, as referred to in Article 140(1), point 2, on the heat emitters located in their properties and to pay the costs relating to consumption of thermal energy under the conditions and in accordance with the detailed rules laid down by the order concerned, as referred to in Article 36(3). (2) Where the owners who represent at least two-thirds of the ownership of the building in co-ownership and who are connected to the subscriber substation or to an independent branch thereof do not wish to be customers of thermal energy for heating or hot water, they are required to declare this in writing to the thermal energy transmission company and to request the cessation of the supply of thermal energy for heating or hot water from that subscriber substation or from an independent branch thereof. … (5) Where a system for the allocation of consumption of thermal energy is provided for, the customers in a building in co-ownership are not entitled to prevent the supply of thermal energy to the heat emitters in their property by physically disconnecting them from the internal installation of the building. (6) Customers residing in a building in co-ownership who disconnect the supply of thermal energy to the heat emitters located in their properties remain thermal energy customers with regard to the heat emitted by the internal system and by the heat emitters located in the common areas of the building.’
23 Article 62 of the Zakon za zashtita na potrebitelite (Law on consumer protection) (DV no 99, of 9 December 2005), which transposed Article 27 of Directive 2011/83 into Bulgarian law, provides: ‘1. The unsolicited supply of goods, water, gas, electricity, district heating or digital content or unsolicited provision of services for consideration is prohibited. 2. In cases of unsolicited supply of goods, water, gas, electricity, district heating or digital content or unsolicited provision of services, the consumer is not obliged to return the goods and is not liable for payment in respect of the goods or services to the entity that provided those goods or services. 3. The absence of a response from the consumer in relation to the supply of goods or services covered by paragraph 1 does not constitute consent.’
24 Article 38(1) of the Zakon za sobstvenostta (Law on property) (DV No 92 of 16 November 1951) provides: ‘In buildings in which each floor or parts of each floor belong to different owners, the ground on which the building is built, the courtyard, the foundations, the external walls, the internal walls separating the different parts, the internal supporting walls, the columns, the beams, the slabs, the joists, the stairs, the landings, the roof, the walls between the attics and cellars of the different properties, the chimneys, the external entrance doors to the building, and the doors to the communal attic and cellar, the main lines for all types of installation and their central appliances, the lifts, the gutters, the caretaker’s lodge and all other elements that, by their nature or purpose, are for common usage, belong to all the owners.’
25 Article 70(1) of the naredba za toplosnabdyavaneto No 16-334 (District heating order No 16-334) of 6 April 2007, states: ‘The quantity of thermal energy measured by a thermal meter in a building in co-ownership, including for the property of clients that do not have devices for allocating the consumption of thermal energy or for those whose heat emitters have been removed, is allocated in accordance with the rules laid down in the annex.’
26 Point 6.1 of the annex to that order provides that ‘the quantity of thermal energy consumed by the heating consists of the quantities of heat emitted by the internal installation by the heat emitters in the communal parts and by the heat emitters in the individual properties’.
27 In addition, point 6.1.3 of that annex states that ‘the quantity of thermal energy emitted by the internal installation is to be allocated in proportion to the heatable volume of the apartments according to the floor plan’.
28 Ms Dimitrova is the owner of a property in a building in co-ownership connected to district heating.
29 Pursuant to a contract concluded on the basis of Article 153(1) of the Law on energy, EVN supplies that building with thermal energy used for heating, the supply of hot water and for the heat emitted by the internal installation.
30 Under that contract, the company that allocates the thermal energy consumption attributed to Ms Dimitrova’s property consumption at a value of 266.25 Bulgarian leva (BGN) (approximately EUR 136) for the period from 1 November 2012 to 30 April 2015.
31 Since Ms Dimitrova had not paid that sum, EVN served on her an order for payment issued by the Rayonen sad Asenovgrad (District Court, Asenovgrad, Bulgaria).
32 Ms Dimitrova contested the order for payment, submitting that there was no contractual obligation between her and EVN, that there was no evidence of the amount of thermal energy actually consumed and that the consumption shown on the bills produced by EVN did not reflect her actual energy consumption, in breach of Article 13(2) of Directive 2006/32.
33 The referring court states that, in this case, the subject matter of the main proceedings concerns the non-payment of sums relating to the consumption of energy emitted by the internal installation for the building, namely all the pipes and distribution installations and the supply of thermal energy inside the building, including the ascending heating pipelines that pass through each apartment.
34 In that regard, the referring court has doubts as to the legality of the billing for the consumption of energy emitted in each apartment by the internal installation of a building in co-ownership where, as in the present case, that billing is established in proportion to the volume of the property heated in accordance with the construction plan of the building, without taking into account the quantity of heat actually emitted in that property. It also states that Ms Dimitrova does not use thermal energy either for heating her apartment or for supplying hot water for domestic use.
35 In addition, the referring court wonders whether under Article 27 of Directive 2011/83 a consumer has the right not to pay the costs relating to the supply thermal energy which he or she has not requested. It notes that in an interpretative decision of 25 May 2017 that is binding on the lower courts, the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria) held that the Law on energy, in particular Article 153(6) thereof, is not contrary to Article 62 of the Law on consumer protection since it is not for each individual co-owner but for the majority of co-owners to make the request for the supply of heating in a building subject to the co-ownership system and, generally, to decide whether and how the common parts must be used, such that it is the building in co-ownership as a whole that must be regarded as being the consumer of that service.
36 In those circumstances, the Rayonen sad Asenovgrad (District Court, Asenovgrad) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Does Article 13(2) of [Directive 2006/32] preclude the possibility of the district heating supplier demanding consideration for the consumed thermal energy released by the system supplied with district heating of a building in co-ownership in proportion to the heatable volume of the apartments according to the floor plan, without taking account of the quantity of thermal energy actually released in the individual apartment? (2) Is a national provision that obliges consumers who are owners of apartments in buildings subject to the provisions on co-ownership to provide consideration for the thermal energy that is not used but is supplied by the building’s system provided with district heating, if they have ceased the use of the thermal energy by removing the radiators in their apartments or as a result of employees of the district heating supplier having rendered the radiator technically incapable of releasing heat at their request, compatible with Article 27 of [Directive 2011/83]? (3) Does such a national provision give rise to an unfair commercial practice within the meaning of [Directive 2005/29]?’
37 Mr Dimitrov is the owner, since 2 December 2003, of an apartment in a building fitted with an internal heating and hot water installation, which passes through each apartment in the building in co-ownership and leaves from the subscriber substation equipped with a common thermal meter.
38 The thermal flow supplying the installation concerned is provided by Toplofikatsia Sofia under a contract between it and the co-ownership of the building, in which Mr Dimitrov’s apartment is situated. The contract was concluded on 4 December 2004 by the intermediary ‘Termokomplekt’ OOD, which was also responsible for accounting for the individual consumptions of heat.
39 Since Mr Dimitrov had not paid for the supply of heating and hot water provided by Toplofikatsia Sofia in the period from 1 May 2014 to 30 April 2016, the latter brought an action before the Sofiyski rayonen sad (Sofia District Court, Bulgaria) seeking the payment of sums due.
40 According to the referring court, the dispute in the main proceedings concerns the questions of whether, in the present case, a contractual relationship has been created, whether costs relating to the allocation of consumption and losses in common parts of the building must be paid where elements of the complete service, namely the supply of heating and hot water, are or are not used and, finally, whether the owner of an apartment located in a building such as that at issue in the main proceedings must be regarded as being a consumer.
41 In that regard, that court states that, by a judgment of 22 April 2010, the Konstitutsionen sad (Constitutional Court, Bulgaria) found that, under Article 153(1) of the Law on energy, all owners and holders of a right in rem over the use of a property in a building in co-ownership connected to a subscriber substation or to an independent branch thereof are thermal energy customers and are required to install thermal energy consumption allocation devices on the heat emitters in their property and to pay the costs relating to the consumption of thermal energy under the conditions and in accordance with the detailed rules laid down by that provision.
42 The referring court notes, however, that the parties to a contract cannot agree clauses to the extent that those clauses are unilaterally defined by Toplofikatsia Sofia in the general conditions of sale and the price is fixed administratively by the Komisia za energiyno i vodno regulirane (the State Commission for Energy and Water Regulation, Bulgaria). Thus, the legal relationship concerned resembles a fiscal obligation rather than a contract taking into account the fact that Toplofikatsia Sofia is an entity with a monopoly and the property of the commune of Sofia (Bulgaria).
43 It adds that, in buildings subject to the co-ownership regime, the regulations permit the hot water supply to be cut and radiators to be sealed off in a given apartment, but it is not possible to terminate the last part of the supply of services provided by Toplofikatsia Sofia, namely the allocation of the consumption of thermal energy.
44 In those circumstances, the Sofiyski Rayonen sad (District Court, Sofia) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Does [Directive 2011/83], which excludes from its scope the rules of conventional contract law on the conclusion of contracts, also exclude legislation governing this extremely atypical, legally prescribed structure for the existence of a contractual relationship? (2) If the directive does not exclude specific legislation in that situation, does that contract fall within the scope of Article 5 of the directive or of a different instrument? In the event that it is a contract or in the event that it is not, is the directive applicable in the present case? (3) Are such de facto contracts covered by the directive, irrespective of the time they arise, or does the directive apply only to newly acquired or, even more restrictively, to newly built apartments (that is to say, user-installations requesting connection to the district heating network)? (4) If the directive is applicable: does the national legislation infringe Article 5(1)(f), read in conjunction with paragraph 2, which provide for the right to terminate the legal relationship (or the fundamental possibility of doing so)? (5) Thus, in the event that a contract is concluded, is a particular form required, and what information must be provided to the consumer (understood to be the individual owner of an apartment and not the community of separate apartment owners)? Does failure to provide timely and accessible information affect the existence of a legal relationship? (6) In order to be a party to such a legal relationship, is a specific request necessary, thus a formally expressed intention of the consumer? (7) If a contract, be it formal or informal, is concluded, does heating of the common parts of the building (in particular the stairwells) form part of the subject matter of the contract and has the consumer ordered a service in that area of the building, if no request has been expressly made for that service by that consumer or even by the whole building in co-ownership (such as when radiators have been removed - as appears to have happened in a great number of cases - the experts not mentioning that there are heating appliances in the common parts of the building)? (8) In the light of the above, is the fact that the heating supply is terminated in a private apartment relevant (or does it make a difference) as regards the owner’s status as a consumer who has requested heating of the common parts of the building?’
45 By order of the President of the Court of 8 February 2018, Cases C‑708/17 and C‑725/17 were joined for the purposes of the written and oral procedure and of the judgment.
46 It must be observed that, according to the Court’s settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not prevent the Court from providing the national court with all the points of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. In that regard, it is for the Court of Justice to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, having regard to the subject matter of the dispute (judgment of 12 February 2019, TC, C‑492/18 PPU, EU:C:2019:108, paragraph 37 and the case-law cited).
47 In the first place, in Case C‑725/17, the questions referred by the Sofiyski rayonen sad (District Court, Sofia) concern, in part, the arrangements for the agreement of a contract for the supply of thermal energy by a district heating provider and, more specifically, the lack of consent of the owner of an apartment in a building in co-ownership at the time when the contract for the supply of energy is concluded.
48 In accordance with Article 3(5), Directive 2011/83 does not affect national general contract law such as the rules on the validity, formation or effect of a contract, in so far as general contract law aspects are not regulated by that directive. Recital 14 of the directive states in that regard that it should be without prejudice to national law regulating for instance the conclusion or the validity of a contract, including in the case of lack of consent.
49 In addition, it is clear from the elements provided by the referring courts that the disputes in the main proceedings concern, in particular, the fact that, relying on Article 27 of Directive 2011/83, Ms Dimitrova and Mr Dimitrov dispute the bills that were sent to them by the thermal energy supplier on the ground that they did not individually request the supply of that thermal energy and they did not use it.
50 Having regard to those matters, by the second and third questions in Case C‑708/17 and by the questions in Case C‑725/17, the referring courts ask, in essence, whether Article 27 of Directive 2011/83, read in conjunction with Article 5(1) and (5) of Directive 2005/29, must be interpreted as precluding a national law that provides that the owners of an apartment in a building in co-ownership connected to a district heating network are required to contribute to the costs of the consumption of thermal energy of the common parts and the internal installation of the building, even though they did not individually request the supply of that thermal energy and they did not use it in their apartment.
51 In the second place, in order to determine the dispute before it in Case C‑708/17, the Rayonen sad Asenovgrad (District Court, Asenovgrad), by its first question referred, asks the Court to interpret the provisions of Directive 2006/32, specifically Article 13(2) thereof, which provides inter alia that the Member States must ensure that bills addressed to final customers of energy are based on actual consumption.
52 In accordance with Article 27(1) of Directive 2012/27, which replaced Directive 2006/32, the latter directive was repealed with effect from 5 June 2014. Similarly, under Article 28(1) of Directive 2012/27, Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with that directive by 5 June 2014 at the latest. That directive does not contain, moreover, any specific provision relating to the temporal application of the provisions of Directive 2006/32, which it replaced.
53 Therefore, since the facts of the main proceedings in Case C‑708/17 concern the period from 1 November 2012 to 30 April 2015, as the Advocate General observed in point 67 of his Opinion, in order to provide a useful answer to the referring court it is appropriate to examine the first question in Case C‑708/17 in the light of the provisions of Directives 2006/32 and 2012/27.
54 By its first question the Rayonen sad Asenovgrad (District Court, Asenovgrad) asks, in essence, whether Article 13(2) of Directive 2006/32 and Article 10(1) of Directive 2012/27 must be interpreted as precluding a national law, such as that in the main proceedings, which provides that, for a building held in co-ownership, bills for the consumption of thermal energy relating to the internal installation are calculated for each property owner in the building in proportion to the heated volume of each apartment.
55 It should be recalled that, in accordance with Article 3(1) of Directive 2011/83, that directive applies under the conditions and to the extent set out in its provisions to any contract concluded between a trader and a consumer. According to the same provision, that directive also applies to contracts for the supply of water, gas, electricity or district heating, including by public providers, to the extent that those commodities are provided on a contractual basis.
56 In addition, Article 2(1) of Directive 2011/83 defines the concept of ‘consumer’ as referring to any natural person who, in the contracts covered by that directive, is acting for purposes which are not related to his or her trade, business or profession. The Court has held, in that regard, that that concept refers to any individual not engaged in commercial or trade activities (judgment of 4 October 2018, Kamenova, C‑105/17, EU:C:2018:808, paragraph 33 and the case-law cited).
57 For the purposes of the interpretation of that directive, the concept of consumer is thus of the utmost importance and the provisions of that directive are essentially designed with the consumer as the target and victim of unfair commercial practices in mind (judgment of 3 October 2013, Zentrale zur Bekämpfung unlauteren Wettbewerbs, C‑59/12, EU:C:2013:634, paragraph 36 and the case-law cited).
58 In the present case, it is clear from the information provided by the referring courts that in both Case C‑708/17 and Case C‑725/17 there is a contract for the supply of thermal energy to the building held in co-ownership and that, pursuant to that contract, the owners of the apartments in that building are the addressees of the bills for the consumption of thermal energy for the internal installations and for the common parts of that building.
59 It is clear from a reading of Article 149a(1) and Article 153(1) of the Law on energy that it is the owners and the holders of a right in rem over the use of property in a building in co-ownership connected to the subscriber substation or to an independent branch thereof who are the customers of the energy supplier under the contract concluded with it. However, to the extent that those owners or those holders of a right in rem are natural persons not engaged in commercial or professional activities, they are consumers within the meaning of Article 2(1) of Directive 2011/83. As the Advocate General observed in point 52 of his Opinion, it follows that the contracts in issue in the main proceedings are within the category of contracts for the supply of district heating between traders and consumers within the meaning of Article 3(1) of that directive.
60 As regards its temporal application, Directive 2011/83 contains a specific provision that expressly determines the temporal application of its provisions. Thus, Article 28(2) of that directive provides that its provisions are to apply to contracts concluded after 13 June 2014.
61 In the present case, in the absence in the case files before the Court of information regarding the dates on which the contracts at issue in the main proceedings were concluded, it is for the national courts to determine whether they were concluded after 13 June 2014 in order to determine whether Directive 2011/83 applies ratione temporis.
62 By the second and third questions in Case C‑708/17 and the questions in Case C‑725/17, the referring courts ask, in essence, whether Article 27 of Directive 2011/83, read in conjunction with Article 5(1) and (5) of Directive 2005/29, must be interpreted as precluding a national law that provides that the owners of an apartment in a building in co-ownership connected to a district heating network are required to contribute to the costs of the consumption of thermal energy by the common parts and the internal installation of the building, even though they did not individually request the supply of that thermal energy and they did not use it in their apartment.
63 It must be recalled that, in accordance with Article 27 of Directive 2011/83, the consumer is to be exempted from the obligation to provide any consideration in cases of unsolicited supply of goods, water, gas, electricity, district heating or digital content or unsolicited provision of services, prohibited by Article 5(5) and point 29 of Annex I to 2005/29, and that the absence of a response from the consumer following such an unsolicited supply or provision does not constitute consent. As recital 60 of Directive 2011/83 states, that practice is in fact an unfair commercial practice prohibited by Directive 2005/29.
64 Inertia selling is defined in that recital as the ‘unsolicited supply of goods or provision of services to consumers’. The Court has stated in that regard that ‘inertia selling’ within the meaning of Article 29 of Annex I of Directive 2005/29, to which Article 27 of Directive 2011/83 refers, includes conduct whereby the trader demands payment from a consumer for a product or service which has been provided to that consumer without the consumer soliciting it (judgment of 13 September 2018, Wind Tre and Vodafone Italia, C‑54/17 and C‑55/17, EU:C:2018:710, paragraph 43).
65 As the Advocate General observed in point 58 of his Opinion, Article 27 of Directive 2011/83 thus seeks to prevent a trader from imposing a contractual relationship on a consumer to which he or she has not freely consented.
66 In the present case, Article 133(2) of the Law on energy provides that the installations of customers in a building in co-ownership are connected with the written consent of owners representing at least two-thirds of the ownership of the building in co-ownership.
67 In addition it is clear from the information provided by the referring courts that Article 153(1) of that law provides that the owners and the holders of a right in rem over the use of property in a building in co-ownership connected to the subscriber substation or to an independent branch thereof are thermal energy customers. On that basis, they are required to install devices for the allocation of the thermal energy consumption on the heat emitters in their property and to pay the costs that relate to their thermal energy consumption. Furthermore, Article 153(6) of that law states that customers residing in a building in co-ownership who disconnect the supply of thermal energy to the heat emitters located in their properties remain thermal energy customers with regard to the heat emitted by the internal system and by the heat emitters located in the common areas of the building.
68 It follows from those provisions that the supply of heating in a building in co-ownership is the consequence of a request submitted on behalf of all the co-owners, in accordance with the specific rules laid down in national law regarding co-ownership.
69 In that regard, the fact that, as in the present case, the property owners in question were either not involved in adopting that decision or were opposed to it, the Court has recently held, in the context of a dispute regarding a payment obligation flowing from a decision of a general meeting of the property owners of a building specifically established by Bulgarian law, that by becoming and remaining the co-owner of a building, each co-owner agrees to be subject to all the provisions in the act governing the association of property owners concerned and the decisions adopted by the general meeting of the owners of property in that building (see, to that effect, judgment of 8 May 2019, Kerr, C‑25/18, EU:C:2019:376, paragraph 29).
70 In those circumstances, the provision of thermal energy to the internal installation and consequently to the common parts of a building in co-ownership, carried out following a decision adopted by the association of property owners of that building to connect it to the district heating cannot be regarded as an unsolicited supply of district heating within the meaning of Article 27 of Directive 2011/83.
71 Having regard to those matters, the answer to the second and third questions in Case C‑708/17 and the questions in Case C‑725/17 is that Article 27 of Directive 2011/83, read in conjunction with Article 5(1) and (5) of Directive 2005/29, must be interpreted as not precluding a national law that provides that the owners of an apartment in a building in co-ownership connected to a district heating network are required to contribute to the costs of the consumption of thermal energy by the common parts and the internal installation of the building, even though they did not individually request the supply of that thermal energy and they did not use it in their apartment.
72 By its first question in Case C‑708/17 the Rayonen sad Asenovgrad (District Court, Asenovgrad) asks, in essence, whether Article 13(2) of Directive 2006/32 and Article 10(1) of Directive 2012/27 must be interpreted as precluding a national law which provides that, for a building held in co-ownership, the bills for the consumption of thermal energy by the internal installation are calculated, for each property owner in the building, in proportion to the heated volume of his or her apartment.
73 To arrive at the conclusion that such a billing method is incompatible with EU law, the defendant in the main proceedings in Case C‑708/17 observes that that method does not enable the actual consumption of thermal energy emitted by the internal installation passing through her apartment to be determined. According to that defendant, Directives 2006/32 and 2012/27 impose the obligation on energy providers to bill the final customer only for what he or she has actually consumed, which would therefore exclude billing calculated in proportion to the heated volume of the apartment concerned.
74 However, it does not follow from either the wording of Article 13(2) of Directive 2006/32 and Article 10(1) of Directive 2012/27, or from the overall scheme and purpose of the law of which those provisions form part, that they impose such an obligation.
75 It should be recalled that the purpose of Directives 2006/32 and 2012/27, as Article 1 of each of those directives states, is to promote better energy efficiency. In that context and as is clear from recitals 1 and 20 of Directive 2006/32 and recital 8 of Directive 2012/27, the entire energy chain, from the energy producer to the final customer who consumes it, is enlisted to achieve that objective.
76 In that regard, recital 29 of 2006/32 states that, in order to enable final consumers to make better-informed decisions as regards their individual energy consumption, they should be provided with a reasonable amount of information thereon and with other relevant information, such as information on available energy efficiency improvement measures, comparative final consumer profiles or objective technical specifications for energy-using equipment, which may include ‘Factor Four’ or similar equipment.
77 For that reason, Article 13(2) of that directive provides that Member States are to ensure that, where appropriate, billing performed by energy distributors, distribution system operators and retail energy sales companies is based on actual energy consumption.
78 As the Advocate General has observed in essence in point 74 of his Opinion, it remains the case that the use in that provision of the phrase ‘where appropriate’ makes it clear that it must be read in relation to Article 13(1) of that directive.
79 That latter provision states that where ‘it is technically possible, financially reasonable and proportionate in relation to the potential energy savings’, Member States must ensure that the final users in the fields, inter alia, of electricity and district heating receive individual meters that measure precisely their actual consumption.
80 It is clear from the drafting history of Directive 2006/32, in particular the Report of the Parliament on the proposal for a directive of the European Parliament and of the Council on energy end-use efficiency and energy services (A6-0130/2005), that the EU legislature wished to take account, in the installation of individual meters to enable actual and effective consumption by the final customer to be measured, of the feasibility of such an installation in buildings that were sometimes too old, and considered it would not always be realistic, judicious or proportionate to make such an installation in view of the excessive costs that it could give rise to.
81 Therefore, since the installation of individual meters was not always possible, the bills themselves could be based on the actual consumption of energy only where it was technically possible, which is confirmed by the use of the phrase ‘where appropriate’ in Article 13(2) of Directive 2006/32.
82 The drafting history of Directive 2012/27, in particular the Report of the Parliament on the proposal for a directive of the European Parliament and of the Council on energy efficiency and repealing Directives 2004/8/EC and 2006/32/EC of 30 July 2012 (A7-0265/2012), shows that the same concerns were taken into account by the EU legislature in the recast of Directive 2006/32 and the redrafting of Article 9(1), the second and third subparagraphs of Article 9(3) of Directive 2012/27 and Article 10(1) of Directive 2012/27.
83 Thus, Article 9(1) of that directive requires Member States to ensure that, in so far as it is technically possible, financially reasonable and proportionate in relation to the potential energy savings, final customers for energy are provided with individual meters that accurately reflect the actual energy consumption. As regards billing, Article 10(1) of that directive provides that where final customers do not have smart meters as referred to in Directives 2009/72/EC and 2009/73/EC, Member States are to ensure, by 31 December 2014, that billing information is accurate and based on actual consumption, in accordance with point 1.1 of Annex VII, where that is technically possible and economically justified.
84 It should be added that the specific case of buildings in co-ownership supplied by a heating network was taken into account by the EU legislature in Directive 2012/27. While Article 9(3), second subparagraph, of that directive provides that Member States were to ensure that individual consumption meters were installed in such buildings by 31 December 2016, that same provision states that, where the use of individual meters was not technically feasible or not cost-efficient, individual heat cost allocators were to be used for measuring heat consumption at each radiator, unless the Member State in question showed that the installation of such heat cost allocators would not be cost-efficient. In those cases, alternative cost-efficient methods of heat consumption measurement could be considered.
85 In the light of the information brought to the attention of the Court, in such buildings held in co-ownership, such as those at issue in the main proceedings, it is hard to conceive being able completely to distinguish the heating bills individually, in particular in respect of the internal installation and the common parts.
86 As regards, more specifically the internal installation, it follows from that information that it may prove difficult, or even impossible, as EVN submits, to determine precisely the quantity of heat emitted by that installation in each apartment. That quantity comprises not only the heat emitted inside the apartment concerned by the material elements of the internal installation, such as the ducts and the pipes which pass through that apartment, but also the thermal exchanges between the heated parts and non-heated parts of the building. As the Advocate General observes in paragraph 85 of his Opinion, the apartments in a building in co-ownership are not thermally independent of each other since heat circulates between the units that are heated and those that are less or are not heated.
87 It seems therefore to be technically difficult to be able to determine individually the exact consumption of each inhabitant of the building in co-ownership concerned as regards the thermal energy emitted by the internal installation.
88 As regards the calculation method for billing for thermal energy consumption in buildings in co-ownership, it must be observed that Member States have a wide discretion. It is clear both from recital 12 and Article 1 of Directive 2006/32 and from recital 20 and Article 1 of Directive 2012/27 that both those directives seek to provide Member States with a common framework that enables them to take appropriate measures to reduce energy consumption, while leaving to them the choice of the means of implementation (see, to that effect, the judgment of 7 August 2018, Saras Energía, C‑561/16, EU:C:2018:633, paragraph 24 and the case-law cited).
89 To that end, Article 9(3), third subparagraph, of Directive 2012/27 provides that Member States have the option of putting in place transparent rules concerning the allocation of the cost of thermal or hot water consumption in order, inter alia, to be able to distinguish those costs from those resulting from the consumption of hot water for domestic needs, from heat radiated by the building installation and for the purposes of heating the common areas, and for the purpose of heating apartments respectively.
90 In the present case, the national legislation at issue in the main proceedings appears to correspond to the guidelines set out in that provision since it provides that the costs for thermal consumption are divided between those corresponding to heat emitted by the internal installation, those relating to thermal energy for heating the common areas, and those for the thermal energy for heating individual properties.
91 Thus, having regard to the wide discretion available to Member States, it must be held that Directive 2006/32 and Directive 2012/27 do not preclude a method of calculation of the heat emitted by the internal installation that is proportionate to the heated volume of each apartment.
92 Having regard to the foregoing elements, the answer to the first question in C‑708/17 is that Article 13(2) of Directive 2006/32 and Article 10(1) of Directive 2012/27 must be interpreted as not precluding a national law that provides that in a building held in co-ownership the bills for thermal energy consumption by the internal installation are calculated for each property owner in the building in proportion to the heated volume of his or her apartment.
93 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.