Bursa Română de Mărfuri (Internal market for electricity - Principles regarding the operation of electricity markets - Nominated electricity market operator - Judgment) [2023] EUECJ C-394/21 (02 March 2023)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

(Reference for a preliminary ruling – Internal market for electricity – Directive 2009/72/EC – Regulation (EU) 2019/943 – Article 1(b) and (c) and Article 3 – Principles regarding the operation of electricity markets – Regulation (EU) 2015/1222 – Article 5(1) – Nominated electricity market operator – National legal monopoly for day-ahead and intraday trading services – National legislation providing for a monopoly for short-, medium- and long-term wholesale trading of electricity)

REQUEST for a preliminary ruling under Article 267 TFEU from the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania), made by decision of 3 June 2021, received at the Court on 28 June 2021, in the proceedings

composed of E. Regan, President of the Chamber, D. Gratsias, M. Ilešič, I. Jarukaitis (Rapporteur) and Z. Csehi, Judges,

having regard to the written procedure and further to the hearing on 22 June 2022,

– the Romanian Government, by M. Chicu, E. Gane, A. Rotăreanu and A. Wellman, acting as Agents,

– the Italian Government, by G. Palmieri, acting as Agent, and by P.G. Marrone, avvocato dello Stato,

– the European Commission, by O. Beynet, L. Nicolae and I. Rogalski, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 29 September 2022,

1 This request for a preliminary ruling concerns the interpretation of Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity (OJ 2019 L 158, p. 54), in particular the interpretation of Article 1(b) and (c) and of Article 3 of that regulation, read in the light of Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU (OJ 2019 L 158, p. 125), in particular Article 2(9) of that directive, and the interpretation of Articles 101 and 102 TFEU, read in conjunction with Article 4(3) TEU and Article 106(1) TFEU.

2 The request has been made in proceedings between Bursa Română de Mărfuri SA (‘BRM’), a company incorporated in Romania, and the Autoritatea Naţională de Reglementare în domeniul Energiei (National Energy Regulatory Authority, Romania; ‘ANRE’), concerning an application for annulment of a decision of ANRE refusing to issue to BRM a licence to organise and operate centralised electricity markets.

3 Article 37 of Directive 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) was entitled ‘Duties and powers of the regulatory authority’. Paragraph 1(j) of that article provided:

(j) monitoring the level and effectiveness of market opening and competition at wholesale and retail levels, including on electricity exchanges, … as well as any distortion or restriction of competition, including providing any relevant information, and bringing any relevant cases to the relevant competition authorities’.

4 On 1 January 2021, Directive 2009/72 was repealed and replaced by Directive 2019/944.

5 Commission Regulation (EU) 2015/1222 of 24 July 2015 establishing a guideline on capacity allocation and congestion management (OJ 2015 L 197, p. 24) was adopted on the basis of Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003 (OJ 2009 L 211, p. 15).

6 Point 23 of the second paragraph of Article 2 of Regulation 2015/1222 contains the following definition:

23. “nominated electricity market operator (NEMO)” means an entity designated by the competent authority to perform tasks related to single day-ahead or single intraday coupling’.

7 Article 5 of that regulation, entitled ‘NEMOs designation in case of a national legal monopoly for trading services’, provides:

‘1. If a national legal monopoly for day-ahead and intraday trading services which excludes the designation of more than one NEMO already exists in a Member State or Member State’s bidding zone at the time of the entry into force of this Regulation, the Member State concerned must notify the [European] Commission within two months after entry into force of this regulation and may refuse the designation of more than one NEMO per bidding zone.

2. For the purposes of this regulation, a national legal monopoly is deemed to exist where national law expressly provides that no more than one entity within a Member State or Member State bidding zone can carry out day-ahead and intraday trading services.

3. Two years after the entry into force of this Regulation, the Commission shall forward a report to the European Parliament and the Council [of the European Union] … On the basis of that report, and if the Commission deems that there is no justification for the continuation of national legal monopolies or for the continued refusal of a Member State to allow cross-border trading by a NEMO designated in another Member State, the Commission may consider appropriate legislative or other appropriate measures to further increase competition and trade between and within Member States. …’

8 In accordance with Article 84 of Regulation 2015/1222, that regulation entered into force ‘on the twentieth day following that of its publication in the Official Journal of the European Union’, that is, on 14 August 2015.

9 Article 1 of Regulation 2019/943, entitled ‘Subject matter and scope’, is worded as follows:

(a) set the basis for an efficient achievement of the objectives of the Energy Union and in particular the climate and energy framework for 2030 by enabling market signals to be delivered for increased efficiency, higher share of renewable energy sources, security of supply, flexibility, sustainability, decarbonisation and innovation;

(b) set fundamental principles for well-functioning, integrated electricity markets, which allow all resource providers and electricity customers non-discriminatory market access, empower consumers, ensure competitiveness on the global market as well as demand response, energy storage and energy efficiency, and facilitate aggregation of distributed demand and supply, and enable market and sectoral integration and market-based remuneration of electricity generated from renewable sources;

(c) set fair rules for cross-border exchanges in electricity, thus enhancing competition within the internal market for electricity, taking into account the particular characteristics of national and regional markets, including the establishment of a compensation mechanism for cross-border flows of electricity, the setting of harmonised principles on cross-border transmission charges and the allocation of available capacities of interconnections between national transmission systems;

(d) facilitate the emergence of a well-functioning and transparent wholesale market, contributing to a high level of security of electricity supply, and provide for mechanisms to harmonise the rules for cross-border exchanges in electricity.’

(2) “regulatory authority” means a regulatory authority designated by each Member State pursuant to Article 57(1) of Directive [2019/944];

(7) “market operator” means an entity that provides a service whereby the offers to sell electricity are matched with bids to buy electricity;

(8) “nominated electricity market operator” or “NEMO” means a market operator designated by the competent authority to carry out tasks related to single day-ahead or single intraday coupling;

(40) “electricity markets” means electricity markets as defined in point (9) of Article 2 of Directive [2019/944];

11 Article 3 of Regulation 2019/943, entitled ‘Principles regarding the operation of electricity markets’, states:

‘Member States, regulatory authorities, transmission system operators, distribution system operators, market operators and delegated operators shall ensure that electricity markets are operated in accordance with the following principles:

(b) market rules shall encourage free price formation and shall avoid actions which prevent price formation on the basis of demand and supply;

(h) barriers to cross-border electricity flows between bidding zones or Member States and cross-border transactions on electricity markets and related services markets shall be progressively removed;

(o) in order to allow market participants to be protected against price volatility risks on a market basis, and mitigate uncertainty on future returns on investment, long-term hedging products shall be tradable on exchanges in a transparent manner and long-term electricity supply contracts shall be negotiable over the counter, subject to compliance with [EU] competition law;

(p) market rules shall facilitate trade of products across the [European] Union and regulatory changes shall take into account effects on both short-term and long-term forward and futures markets and products;

12 Article 10 of that regulation, entitled ‘Technical bidding limits’, states:

‘1. There shall be neither a maximum nor a minimum limit to the wholesale electricity price. …

4. Regulatory authorities or … designated competent authorities … shall identify policies and measures applied within their territory that could contribute to indirectly restricting wholesale price formation, including limiting bids relating to the activation of balancing energy, capacity mechanisms, measures by the transmission system operators, measures intended to challenge market outcomes, or to prevent the abuse of dominant positions or inefficiently defined bidding zones.

5. Where a regulatory authority or designated competent authority has identified a policy or measure which could serve to restrict wholesale price formation[,] it shall take all appropriate actions to eliminate or, if not possible, to mitigate the impact of that policy or measure on bidding behaviour. …’

(9) “electricity markets” means markets for electricity, including over-the-counter markets and electricity exchanges, markets for the trading of energy, capacity, balancing and ancillary services in all timeframes, including forward, day-ahead and intraday markets’.

14 Article 59 of that directive, entitled ‘Duties and powers of the regulatory authorities’, provides, inter alia, in its paragraph 1(o), that the regulatory authority is to have the duty of ‘monitoring the level and effectiveness of market opening and competition at wholesale and retail levels, including on electricity exchanges, … as well as any distortion or restriction of competition, including by providing any relevant information, and bringing any relevant cases to the relevant competition authorities’.

15 In accordance with Article 72 of Directive 2019/944, that directive repeals and replaces Directive 2009/72 with effect from 1 January 2021, with most of the provisions of Directive 2019/944 applying from that date, according to Article 73 of that directive. However, in accordance with that latter provision, the entry into force of Directive 2019/944 took place on 4 July 2019.

16 Legea nr. 123, energiei electrice și a gazelor naturale (Law No 123 on electricity and natural gas) of 10 July 2012 (Monitorul Oficial al României, Part I, No 485, of 16 July 2012), in the version applicable to the dispute in the main proceedings (‘Law No 123/2012’), contains, in its Article 3(38) and (49), the following definitions:

‘(38) “electricity market operator” means the legal person that organises and operates the centralised markets, with the exception of the balancing market, for the purposes of the short-, medium- and long-term wholesale trading of electricity;

(49) “centralised electricity market” means the organised framework within which trading in electricity is carried out between various economic operators, with the involvement of the electricity market operator or the transmission system operator, on the basis of specific rules approved by the competent authority; in the present Title the terms “centralised electricity market” and “organised electricity market” are equivalent’.

(f) the operation of the centralised markets – a single electricity market operator’s licence and a single balancing market operator’s licence shall be granted.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

18 BRM has a general competence under Romanian law to operate markets of public interest. On 20 August 2020, it submitted an application to ANRE for the issue of a licence to organise and operate centralised electricity markets, referring to Regulation 2019/943. On 21 September 2020, ANRE informed BRM that its application had been rejected. BRM then brought an action before the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania), the referring court, seeking an order requiring ANRE to grant it the licence applied for, relying on the entry into force of Regulation 2019/943 on 1 January 2020.

19 In support of that action, BRM submits that it is apparent from Regulation 2019/943, in particular Article 1(b) and (c), Article 3 and Article 10(4) and (5) thereof, read in conjunction with Directive 2019/944, that the national regulatory authorities are required to ensure effective competition between operators on the electricity markets and to prevent, in all cases, an anticompetitive monopoly. BRM argues that it cannot therefore be denied the right to trade on the market for electricity products and services. It submits, in particular, that the principles of free competition laid down by Regulation 2019/943, which, according to BRM, include the elimination of monopolistic behaviour, also concern the electricity market operator, as defined in Article 2(7) of that regulation.

20 In response, ANRE relies on Article 10(2)(f) of Law No 123/2012 and on the fact that, on the date on which that law entered into force, the licence to operate the centralised electricity markets had already been granted, on 20 December 2001, to OPCOM SA for a period of 25 years, such that the latter operator holds a monopoly in that area. It also states that OPCOM was designated as a NEMO in respect of the day-ahead electricity market and intraday electricity market, for Romania’s bidding zone, on the basis of Article 5 of Regulation 2015/1222 and that that designation was subsequently extended until 20 December 2026. It argues that Article 5 of that regulation, by allowing Member States to designate only one NEMO, permits the existence of a monopoly.

21 According to ANRE, the provisions of Regulation 2019/943 are, by contrast, irrelevant in that regard, since that regulation does not contain any provision requiring the Member States to designate several operators to perform the task of organising and operating centralised electricity markets for the purposes of wholesale electricity trading. Moreover, it contends that, since the electricity market in Romania is small, the creation of two separate markets would merely lead to distribution of bids from the same tenderers, which would result in an infringement of competition rules.

22 The referring court notes that Regulation 2019/943 has not yet been interpreted by the Court and it takes the view that its correct interpretation and application are not obvious. If the Court were to find that the provisions of that regulation apply to the electricity market operator, that those provisions, read in isolation or in conjunction with Directive 2019/944, prohibit a Member State, as from the date of their entry into force, from continuing to issue only one licence to operate the entire electricity market of that State, and that the grant by a Member State of only one such licence constitutes a restriction of competition within the meaning of Articles 101 and 102 TFEU, read in conjunction with Article 4(3) TEU and Article 106(1) TFEU, each of those interpretations would be of significant relevance to the assessment which the referring court has to make. It states that it therefore grants BRM’s request that the matter be referred to the Court for a preliminary ruling.

23 In those circumstances, the Curtea de Apel București (Court of Appeal, Bucharest) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Having regard to the provisions of [Directive 2019/944], does [Regulation 2019/943], in particular Article 1(b) and Article 3 of that regulation, prohibit, as from its entry into force, a Member State from continuing to grant one single licence to organise and operate centralised electricity markets? Is there an obligation on the Romanian State, as of 1 January 2020, to bring to an end an existing monopoly as regards the operation of the electricity market?

(2) Does the scope ratione personae of the principles of free competition laid down in Regulation 2019/943, in particular in Article 1(b) and (c) and in Article 3 [of that regulation] respectively, include the operator of an electricity market such as a commodities exchange? Is it relevant to the answer to this question that, for the purposes of defining the electricity market, Article 2(40) of Regulation 2019/943 refers to the definition of electricity markets set out in Article 2(9) of Directive 2019/944?

(3) Is the grant by a Member State of one single licence to operate the electricity market to be regarded as constituting a restriction of competition within the meaning of Articles 101 and 102 TFEU, read in conjunction with Article 4(3) TEU and Article 106(1) TFEU?’

24 As a preliminary point, it must be stated, in the first place, that Directive 2019/944, referred to in the first and second questions, pursuant to Article 72 of that directive, repealed Directive 2009/72 with effect only from 1 January 2021, that is to say, after both the submission by BRM of its application for the issue of a licence to organise and operate the centralised electricity markets and the adoption of the ANRE decision which is the subject of the dispute in the main proceedings, with the result that Directive 2019/944 is not applicable ratione temporis to that dispute, unlike Directive 2009/72. Since, however, Regulation 2019/943 lays down certain definitions by reference to the definitions laid down in Directive 2019/944, it must be held that those latter definitions are an integral part of that regulation and may therefore, if necessary, be taken into account for the purpose of analysing the first two questions.

25 In the second place, it should be noted that the dispute in the main proceedings concerns the refusal by ANRE to grant BRM a licence to organise and operate electricity markets, that ANRE is the ‘regulatory authority’ within the meaning of Article 2(2) of Regulation 2019/943, designated by Romania, and that that refusal is based on Article 10(2)(f) of Law No 123/2012.

26 As is apparent from the order for reference, that latter provision provides that, at the level of that Member State, a single electricity market operator’s licence, within the meaning of that law, is to be granted, that operator being responsible, in accordance with the definition in Article 3(38) of that law, for the organisation and operation of the centralised electricity markets, with the exception of the balancing market, for the purposes of the short-, medium- and long-term wholesale trading of electricity. In accordance with point 49 of that article, the concept of ‘centralised electricity market’ refers to the organised framework within which trading in electricity is carried out between various economic operators, with the involvement of the electricity market operator.

27 In addition, it is common ground in the case in the main proceedings that, when BRM submitted its application for an electricity market operator’s licence within the meaning of Law No 123/2012, the refusal of which gave rise to the dispute in the main proceedings, the single licence provided for by the national legislation then in force had already been granted to OPCOM, which therefore held a monopoly in Romania for intermediation services in respect of offers to sell and bids to buy electricity on the short-, medium- and long-term wholesale markets. In that regard, the Romanian Government stated at the hearing before the Court that those markets correspond to the intraday, day-ahead and forward markets, as referred to in the relevant EU law. However, OPCOM is not a party to the dispute in the main proceedings, nor does the latter concern the conduct of that party on the market, since that dispute arises solely from the application, by the Romanian regulatory authority, of the national legislation from which the existence of that monopoly derives.

28 In the light of those circumstances, it must be held that the second question, by which the referring court seeks to ascertain, first, whether an electricity market operator is subject to compliance with the principles set out in Article 1(b) and (c) of Regulation 2019/943, and, secondly, whether, in that regard, it is relevant that the concept of ‘electricity markets’, within the meaning of that regulation, is defined in Article 2(40) thereof by reference to the definition of that concept in Article 2(9) of Directive 2019/944, is useful with regard to the dispute in the main proceedings only if it is understood as seeking a determination as to whether those principles or that definition preclude national legislation which provides that only one electricity market operator, for the purposes of Article 2(7) of that regulation, may lawfully operate on that market.

29 In those circumstances, it must be understood that, by its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Regulation 2019/943, in particular Article 1(b) and (c), Article 2(40) and Article 3 of that regulation, read in conjunction with Directive 2009/72, must be interpreted as precluding legislation of a Member State under which a national legal monopoly for intermediation services in respect of offers to sell and bids to buy electricity concerning both the day-ahead and intraday wholesale markets and the forward wholesale market is maintained.

30 In that regard, it should be borne in mind that Regulation 2019/943 seeks, according to Article 1(a) thereof, to set the basis for an efficient achievement of the objectives of the Energy Union and in particular the climate and energy framework for 2030, and, according to Article 1(b) thereof, to set fundamental principles for well-functioning, integrated electricity markets, which allow all resource providers and electricity customers non-discriminatory market access, empower consumers, ensure competitiveness on the global market as well as demand response, energy storage and energy efficiency, and facilitate aggregation of distributed demand and supply, and enable market and sectoral integration and market-based remuneration of electricity generated from renewable sources.

31 In that context, Article 1(c) of that regulation seeks to set fair rules for cross-border exchanges in electricity, thus enhancing competition within the internal market for electricity, taking into account the particular characteristics of national and regional markets, including the establishment of a compensation mechanism for cross-border flows of electricity, the setting of harmonised principles on cross-border transmission charges and the allocation of available capacities of interconnections between national transmission systems.

32 Article 1(d) of Regulation 2019/943 adds that that regulation aims to facilitate the emergence of a well-functioning and transparent wholesale market, contributing to a high level of security of electricity supply, and to provide for mechanisms to harmonise the rules for cross-border exchanges in electricity.

33 As regards Article 3 of Regulation 2019/943, this sets out the principles in accordance with which Member States, regulatory authorities, transmission system operators, distribution system operators, market operators and delegated operators must ensure that electricity markets are operated. These include, in paragraph (a) of that article, the principle that prices are to be formed on the basis of demand and supply; in paragraph (b), the principle that market rules are to encourage free price formation and are to avoid actions which prevent price formation on the basis of demand and supply; in paragraph (h), the principle that barriers to cross-border electricity flows between bidding zones or Member States and cross-border transactions on electricity markets and related services markets are to be progressively removed; in paragraph (o), the principle that long-term hedging products are to be tradable on exchanges in a transparent manner and long-term electricity supply contracts are to be negotiable over-the-counter, subject to compliance with EU competition law; and, in paragraph (p), the principle that market rules are to facilitate trade of products across the European Union.

34 Although, as the Advocate General also noted, in essence, in point 22 of his Opinion, those provisions impose certain obligations, inter alia on Member States and national regulatory authorities, to promote competition on electricity markets within the meaning of Article 2(40) of Regulation 2019/943, it must, however, be stated that none of those provisions, nor any other provision of that regulation, lays down any rule concerning trade on those markets which is capable of being interpreted, even in the light of the objectives pursued by that regulation, as precluding, as such, a national legal monopoly for intermediation services in respect of offers to sell and bids to buy wholesale electricity, such as that at issue in the main proceedings, from being maintained in a Member State.

35 In particular, the fact that, by means of a reference to Article 2(9) of Directive 2019/944, Article 2(40) of Regulation 2019/943 defines the concept of ‘electricity markets’ as covering ‘markets for electricity, including over-the-counter markets and electricity exchanges, markets for the trading of energy, capacity, balancing and ancillary services in all timeframes, including forward, day-ahead and intraday markets’, thereby covering, in the plural, inter alia, ‘electricity exchanges’, cannot establish that such a definition gives rise to a prohibition on Member States maintaining a national legal monopoly such as that at issue in the main proceedings, in the absence of any provision to that effect in Regulation 2019/943.

36 Nor can such a prohibition be inferred from Article 10(4) and (5) of that regulation, as relied on by BRM before the referring court. Those provisions – which form part of the principle laid down in paragraph 1 of that article, according to which there is to be neither a maximum nor a minimum limit to the wholesale electricity price – are, in essence, limited to providing, respectively, that the regulatory authorities are to identify policies and measures applied within their territory that could contribute to indirectly restricting wholesale price formation or to prevent the abuse of dominant positions or inefficiently defined bidding zones, and that, where a policy or measure which could serve to restrict wholesale price formation has been identified, the competent authority is to take all appropriate actions to eliminate or, if not possible, to mitigate the impact of that policy or measure on bidding behaviour.

37 Moreover, it should be noted, first, that the mere holding of a dominant position does not in itself constitute an abuse within the meaning of Article 102 TFEU and, secondly, that 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 (judgment of 26 October 2017, Balgarska energiyna borsa, C‑347/16, EU:C:2017:816, paragraph 54 and the case-law cited).

38 The same finding as that made in paragraph 34 above concerning the provisions of Regulation 2019/943 is necessary as regards Directive 2009/72, which does not fully harmonise the internal market in electricity, but establishes merely a number of general principles that Member States must follow with a view to achieving a competitive, secure and environmentally sustainable market in electricity (see, to that effect, judgment of 17 September 2020, Hidroelectrica, C‑648/18, EU:C:2020:723, paragraph 27).

39 In particular, Article 37(1)(j) of Directive 2009/72, which corresponds, in essence, to Article 59(1)(o) of Directive 2019/944, on which BRM relied before the Court, confines itself, so far as is relevant for the purposes of the present case, to conferring on national regulatory authorities the duty of ‘monitoring the level and effectiveness of market opening and competition at wholesale and retail levels, including on electricity exchanges’ and of monitoring ‘any distortion or restriction of competition’. It must therefore be held that it is clear from the unequivocal wording of that provision that it does not in any way require those authorities to take measures to bring to an end a national legal monopoly for intermediation services in respect of offers to sell and bids to buy electricity, such as that at issue in the main proceedings.

40 That being so, with a view to giving a useful answer to the referring court, the Court may decide to take into consideration rules of EU law to which the national court has made no reference in the wording of its question (judgment of 17 October 2019, Comida paralela 12, C‑579/18, EU:C:2019:875, paragraph 22 and the case-law cited).

41 It is therefore important, in the first place, and in so far as the existence of a monopoly for intermediation services in respect of offers to sell and bids to buy electricity on the day-ahead and intraday wholesale markets is at issue in the main proceedings, to note that the first subparagraph of Article 5(1) of Regulation 2015/1222 provides that, if a national legal monopoly for day-ahead and intraday electricity trading services which excludes the designation of more than one NEMO already exists in a Member State or in a Member State’s bidding zone at the time of the entry into force of that regulation, the Member State concerned must notify the Commission within two months after that entry into force and may refuse the designation of more than one NEMO per bidding zone.

42 Article 5(2) of Regulation 2015/1222 states that, for the purposes of that regulation, a national legal monopoly is deemed to exist where national law expressly provides that no more than one entity within a Member State or a Member State’s bidding zone can carry out day-ahead and intraday trading services. Paragraph 3 of that Article 5 adds, inter alia, that, if, on the basis of a report to be drawn up two years after the entry into force of Regulation 2015/1222, the Commission deems that there is no justification for the continuation of national legal monopolies or for the continued refusal of a Member State to allow cross-border trading by a NEMO designated in another Member State, the Commission may consider appropriate legislative or other appropriate measures to further increase competition and trade between and within Member States.

43 It follows from those provisions that if, at the time of the entry into force of Regulation 2015/1222, namely, pursuant to Article 84 of that regulation, on 14 August 2015, there existed a national legal monopoly in a Member State for day-ahead and intraday electricity trading services, that Member State is, by virtue of Article 5(1) of Regulation 2015/1222, authorised to maintain that monopoly under the conditions laid down in that article and, consequently, may refuse the designation of more than one NEMO per bidding zone.

44 In the present case, it is common ground that, on that date, such a monopoly for day-ahead and intraday electricity trading services existed in Romania, for the benefit of OPCOM as a nominated electricity market operator within the meaning of point 23 of the second paragraph of Article 2 of Regulation 2015/1222, the definition of that concept in that provision being, moreover, essentially reproduced in Article 2(8) of Regulation 2019/943, that the Commission had been notified of this in accordance with the provisions of Article 5(1) of Regulation 2015/1222, and that the Commission has not, at the present stage, adopted any appropriate legislative or other appropriate measure, within the meaning of Article 5(3) of that latter regulation, requiring that monopoly to be brought to an end.

45 Accordingly, it must be held that it follows from Regulation 2019/943, in particular from Article 1(b) and (c), Article 2(40) and Article 3 of that regulation, read in conjunction with Directive 2009/72, and from Article 5 of Regulation 2015/1222, that those provisions do not preclude a Member State from maintaining a national legal monopoly for intermediation services in respect of offers to sell and bids to buy electricity concerning day-ahead and intraday wholesale markets, provided that that monopoly already existed in that Member State at the time of the entry into force of Regulation 2015/1222.

46 In the second place, in so far as the existence of a monopoly for intermediation services in respect of offers to sell and bids to buy electricity on the forward wholesale market is at issue in the main proceedings, it should be recalled that any national measure relating to an area which has been the subject of exhaustive harmonisation at EU level must be assessed in the light of the provisions of that harmonising measure and not in the light of the provisions of primary law (judgment of 17 September 2020, Hidroelectrica, C‑648/18, EU:C:2020:723, paragraph 25 and the case-law cited). However, since such intermediation services are not the subject of exhaustive harmonisation at EU level, national legislation such as that at issue in the main proceedings, in so far as it concerns such a monopoly on the forward wholesale electricity market, must, in principle, be assessed in the light of the relevant provisions of primary law (see, by analogy, judgment of 12 November 2015, Visnapuu, C‑198/14, EU:C:2015:751, paragraph 48).

47 In that regard, it follows from the case-law of the Court that national legislation under which exclusive rights to carry on an economic activity are conferred on a single private or public operator is capable, inter alia, of constituting a restriction both of the freedom of establishment and of the freedom to provide services (judgment of 23 February 2016, Commission v Hungary, C‑179/14, EU:C:2016:108, paragraph 164 and the case-law cited), in respect of which it would then be necessary to determine whether the restriction may be justified by an overriding reason relating to the public interest and, where appropriate, whether it is suitable for securing the attainment of the objective pursued and does not go beyond what is necessary to attain that objective (see, to that effect, judgment of 23 February 2016, Commission v Hungary, C‑179/14, EU:C:2016:108, paragraphs 165 and 166 and the case-law cited).

48 However, as regards the present case, it should be recalled that, in accordance with settled case-law of the Court, the provisions of the FEU Treaty on the freedom of establishment and the freedom to provide services do not, in principle, apply to a situation which is confined in all respects within a single Member State (see, to that effect, judgments of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 47 and the case-law cited, and of 18 January 2022, Thelen Technopark Berlin, C‑261/20, EU:C:2022:33, paragraph 50).

49 In paragraphs 50 to 53 of the judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874), the Court referred to the four situations in which it could, nonetheless, be necessary, for the resolution of the disputes in the main proceedings in that case, to interpret the provisions of the Treaties relating to the fundamental freedoms, even though the disputes in those main proceedings were confined in all respects within a single Member State, leading the Court to find that those requests for a preliminary ruling were admissible (judgment of 20 September 2018, Fremoluc, C‑343/17, EU:C:2018:754, paragraph 20).

50 The Court stated, in paragraph 54 of the judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874), that, in those four situations, it cannot, where the referring court does no more than state that the legislation in question applies without distinction to nationals of the Member State concerned and those of other Member States, consider that the request for a preliminary ruling concerning the provisions of the FEU Treaty on the fundamental freedoms is necessary to enable that court to give judgment in the case pending before it. The specific factors that allow a connecting link to be established between the subject matter or circumstances of a dispute, confined in all respects within the Member State concerned, and those provisions must be apparent from the order for reference (see, also, judgment of 20 September 2018, Fremoluc, C‑343/17, EU:C:2018:754, paragraph 21).

51 The Court added, in paragraph 55 of the judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874), that, in a situation which is confined in all respects within a single Member State, it is for the referring court to indicate to the Court, in accordance with the requirements of Article 94 of the Rules of Procedure of the Court, in what way the dispute pending before it, despite its purely domestic character, has a connecting factor with the provisions of EU law on the fundamental freedoms that makes the requested preliminary ruling on interpretation necessary for it to give judgment in that dispute.

52 More specifically, it follows from those requirements that, in order for it to be found that there is such a connecting link, the request for a preliminary ruling must clearly set out specific factors, that is, not hypothetical considerations but specific evidence, on the basis of which that link may be positively established, since the referring court may not merely submit to the Court evidence suggesting that such a link cannot be ruled out or which, considered in the abstract, could constitute evidence to that effect, but must, on the contrary, provide objective and consistent evidence enabling the Court to ascertain whether such a link exists (see, to that effect, judgment of 20 September 2018, Fremoluc, C‑343/17, EU:C:2018:754, paragraphs 28 and 29 and the case-law cited).

53 Those considerations relating to the admissibility of the questions referred apply, a fortiori, for the purpose of determining whether, with a view to giving a useful answer to the referring court, the Court may, in accordance with the case-law referred to in paragraph 40 above, take into consideration rules of EU law to which the national court has made no reference in the wording of its question.

54 In the present case, the request for a preliminary ruling does not contain any indication from the referring court, for the purposes of the case-law referred to in paragraphs 51 and 52 above, showing that the dispute in the main proceedings, which is between a company incorporated in Romania and the Romanian regulatory authority concerning the lawfulness of a decision of that authority refusing to grant that company, pursuant to national legislation, a licence to organise and operate electricity markets in that Member State, has, despite that purely domestic character, a connecting link with the provisions of the FEU Treaty on the fundamental freedoms, and that the situation at issue in the main proceedings therefore falls within one of the four situations referred to in paragraphs 50 to 53 of the judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874).

55 In particular, although the Federaţia Europeană a Comercianţilor de Energie (European Federation of Energy Traders) is an intervener in the dispute in the main proceedings, the order for reference does not contain any indication of that intervener’s involvement in that dispute or any indication of the extent to which the intervention of that federation in that dispute, solely at the stage of the appeal before the referring court, is capable of conferring such a connecting link on the dispute.

56 Similarly, although, as is apparent, inter alia, from the applicable regulatory framework, electricity may be the subject of cross-border exchanges and the intermediation services at issue in the main proceedings may, in the abstract, be provided by operators established in other Member States, it must be stated that such situations, which, moreover, are not even envisaged by the referring court, are, in the present case and in the light of the case-law referred to in paragraphs 50 to 52 above, manifestly insufficient to enable the Court to establish positively that one of the fundamental freedoms enshrined in the FEU Treaty is applicable to the dispute in the main proceedings.

57 Consequently, although it follows from Regulation 2019/943, in particular from Article 1(b) and (c), Article 2(40) and Article 3 of that regulation, read in conjunction with Directive 2009/72, that those provisions do not preclude a Member State from maintaining a national legal monopoly for intermediation services in respect of offers to sell and bids to buy electricity concerning the forward wholesale market, that interpretation is without prejudice to an analysis, if necessary, of the lawfulness of the continuation of such a monopoly in the light of the relevant provisions of primary EU law, including, where appropriate, those relating to the freedom of establishment and the freedom to provide services.

58 In the light of all the foregoing considerations, the answer to the first and second questions is that Regulation 2019/943, in particular Article 1(b) and (c), Article 2(40) and Article 3 of that regulation, read in conjunction with Directive 2009/72, must be interpreted as:

– not precluding legislation of a Member State under which a national legal monopoly for intermediation services in respect of offers to sell and bids to buy electricity concerning the day-ahead and intraday wholesale markets is maintained, provided that that monopoly already existed in that Member State at the time of the entry into force of Regulation 2015/1222, in accordance with Article 5 of that regulation;

– not precluding legislation of a Member State under which a national legal monopoly for intermediation services in respect of offers to sell and bids to buy electricity concerning the forward wholesale market is maintained, since the conformity of such legislation with EU law must be assessed in the light of the relevant provisions of primary EU law.

59 In view of the answer given to the first two questions, from which it is apparent, in essence, that Article 5 of Regulation 2015/1222 allows, under the conditions specified by that provision, the continuation of a national legal monopoly for intermediation services in respect of offers to sell and bids to buy electricity concerning the day-ahead and intraday wholesale markets, it is necessary to reformulate the third question to the effect that, by that question, the referring court asks, in essence, whether Articles 101 and 102 TFEU, read in conjunction with Article 4(3) TEU and Article 106(1) TFEU, must be interpreted as meaning that legislation of a Member State which provides that, at the level of that Member State, one single licence may be granted for the purposes of carrying out intermediation services in respect of offers to sell and bids to buy electricity on the forward wholesale market, constitutes a restriction of competition for the purposes of those provisions.

60 In that regard, it should be borne in mind that 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. 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 (judgments of 26 October 2017, Balgarska energiyna borsa, C‑347/16, EU:C:2017:816, paragraph 56 and the case-law cited, and of 16 July 2020, Adusbef and Others, C‑686/18, EU:C:2020:567, paragraph 36).

61 That requirement to give details is of particular importance in the field of competition, which is characterised by complex factual and legal situations (judgments of 26 October 2017, Balgarska energiyna borsa, C‑347/16, EU:C:2017:816, paragraph 57 and the case-law cited, and of 3 March 2021, Poste Italiane and Agenzia delle entrate – Riscossione, C‑434/19 and C‑435/19, EU:C:2021:162, paragraph 77 and the case-law cited).

62 It must also 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 26 October 2017, Balgarska energiyna borsa, C‑347/16, EU:C:2017:816, paragraph 58 and the case-law cited). It is the Court’s duty to ensure that that opportunity is safeguarded, given that, under that provision, only the orders for reference are notified to the interested parties (judgment of 2 September 2021, Irish Ferries, C‑570/19, EU:C:2021:664, paragraph 134 and the case-law cited).

63 Those requirements concerning the content of a request for a preliminary ruling are expressly set out in Article 94 of the 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 26 October 2017, Balgarska energiyna borsa, C‑347/16, EU:C:2017:816, paragraph 59 and the case-law cited). They are also referred to in paragraphs 13, 15 and 16 of the Recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1).

64 In the present case, the order for reference does not contain any explanation as to the reasons which prompted the national court to inquire about the interpretation of Articles 101 and 102 TFEU, read in conjunction with Article 4(3) TEU and Article 106(1) TFEU. In particular, that court does not state the reasons why those provisions would be applicable in the case in the main proceedings, or in what way the national legislation at issue in the main proceedings might be liable to infringe those provisions.

65 In those circumstances, since the Court does not have the information necessary to give a useful answer to the third question, it must be held that that question is inadmissible.

66 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.

Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity, in particular Article 1(b) and (c), Article 2(40) and Article 3 of that regulation, read in conjunction with Directive 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,

– not precluding legislation of a Member State under which a national legal monopoly for intermediation services in respect of offers to sell and bids to buy electricity concerning the day-ahead and intraday wholesale markets is maintained, provided that that monopoly already existed in that Member State at the time of the entry into force of Commission Regulation (EU) 2015/1222 of 24 July 2015 establishing a guideline on capacity allocation and congestion management, in accordance with Article 5 of that regulation;

– not precluding legislation of a Member State under which a national legal monopoly for intermediation services in respect of offers to sell and bids to buy electricity concerning the forward wholesale market is maintained, since the conformity of such legislation with EU law must be assessed in the light of the relevant provisions of primary EU law.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Bursa Română de Mărfuri (Internal market for electricity - Principles regarding the operation of electricity markets - Nominated electricity market operator - Judgment) [2023] EUECJ C-394/21 (02 March 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2022/C39421.html Cite as: [2023] EUECJ C-394/21, ECLI:EU:C:2023:146, EU:C:2023:146

Court of Justice of the European Communities (including Court of First Instance Decisions)