Crown Van Gelder BV v Autoriteit Consument en Markt (C-360/19)

Contents

Judgment of the Court (Fifth Chamber)8 October 2020^note(Reference for a preliminary ruling — Internal market for electricity — Directive 2009/72/EC — Article 37 — Duties and powers of the regulatory authority — Out-of-court dispute settlement — Concept of party having a complaint — Complaint submitted by a final customer against the operator of a transmission system to which that customer’s installation is not directly connected — Failure on the grid — No contractual relationship between that customer and the operator of that grid — Admissibility of the complaint)In Case C‑360/19,REQUEST for a preliminary ruling under Article 267 TFEU from the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal for Trade and Industry, Netherlands), made by decision of 23 April 2019, received at the Court on 3 May 2019, in the proceedingsCrown Van Gelder BVvAutoriteit Consument en Markt (ACM),other party:TenneT TSO BV,THE COURT (Fifth Chamber),composed of E. Regan, President of the Chamber, M. Ilešič, E. Juhász, C. Lycourgos and I. Jarukaitis (Rapporteur), Judges,Advocate General: G. Pitruzzella,Registrar: M. Ferreira, Principal Administrator,having regard to the written procedure and further to the hearing on 5 March 2020,after considering the observations submitted on behalf of:– Crown Van Gelder BV, by M.R. het Lam, advocaat,– TenneT TSO BV, by L. Baljon, and by I. Brinkman, advocaat,– the Netherlands Government, by M.K. Bulterman and P. Huurnink, acting as Agents,– the Finnish Government, by J. Heliskoski, acting as Agent,– the European Commission, by E. Manhaeve and O. Beynet, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 4 June 2020,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 37(11) 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).

2The request has been made in the context of a dispute between Crown Van Gelder BV and Autoriteit Consument en Markt (ACM) (Consumer and Market Authority, Netherlands) concerning a decision of the latter declaring inadmissible the complaint submitted by that company against TenneT TSO BV, the operator of the national high-voltage grid, following a failure in that grid.

Legal context

European Union law

3Recitals 37, 42, 51 and 54 of Directive 2009/72 state:(37) Energy regulators should have the power to issue binding decisions in relation to electricity undertakings and to impose effective, proportionate and dissuasive penalties on electricity undertakings which fail to comply with their obligations or to propose that a competent court impose such penalties on them … Energy regulators should also be granted the power to contribute to ensuring high standards of universal and public service in compliance with market opening, to the protection of vulnerable customers, and to the full effectiveness of consumer protection measures. ……(42) All [EU] industry and commerce, including small and medium-sized enterprises, and all citizens of the Union that enjoy the economic benefits of the internal market should also be able to enjoy high levels of consumer protection … Those customers should also have access to choice, fairness, representation and dispute settlement mechanisms.…(51) Consumer interests should be at the heart of this Directive and quality of service should be a central responsibility of electricity undertakings. Existing rights of consumers need to be strengthened and guaranteed, and should include greater transparency. Consumer protection should ensure that all consumers in the wider remit of the [European Union] benefit from a competitive market. Consumer rights should be enforced by Member States or, where a Member State has so provided, the regulatory authorities.…(54) Greater consumer protection is guaranteed by the availability of effective means of dispute settlement for all consumers. Member States should introduce speedy and effective complaint-handling procedures.’

4Article 1 of that directive is worded as follows:‘This Directive establishes common rules for the generation, transmission, distribution and supply of electricity, together with consumer protection provisions, with a view to improving and integrating competitive electricity markets in the [European Union]. … It also lays down universal service obligations and the rights of electricity consumers and clarifies competition requirements.’

5Article 2 of that directive sets out the following definitions:‘For the purposes of this Directive, the following definitions apply:…3. “transmission” means the transport of electricity on the extra high-voltage and high-voltage interconnected system with a view to its delivery to final customers or to distributors, but does not include supply;4. “transmission system operator” means a natural or legal person responsible for operating, ensuring the maintenance of and, if necessary, developing the transmission system in a given area and, where applicable, its interconnections with other systems, and for ensuring the long-term ability of the system to meet reasonable demands for the transmission of electricity;…9. “final customer” means a customer purchasing electricity for his own use;…’

6Article 3 of Directive 2009/72, entitled ‘Public service obligations and customer protection’, states, in paragraph 7 thereof:‘Member States shall take appropriate measures to protect final customers, and shall, in particular, ensure that there are adequate safeguards to protect vulnerable customers. … They shall ensure high levels of consumer protection, particularly with respect to … dispute settlement mechanisms. …’

7According to Article 12 of that directive, entitled ‘Tasks of transmission system operators’:‘Each transmission system operator shall be responsible for:(a) ensuring the long-term ability of the system to meet reasonable demands for the transmission of electricity, operating, maintaining and developing under economic conditions secure, reliable and efficient transmission systems with due regard to the environment;(b) ensuring adequate means to meet service obligations;(c) contributing to security of supply through adequate transmission capacity and system reliability;(d) managing electricity flows on the system, taking into account exchanges with other interconnected systems. To that end, the transmission system operator shall be responsible for ensuring a secure, reliable and efficient electricity system and, in that context, for ensuring the availability of all necessary ancillary services, including those provided by demand response, in so far as such availability is independent from any other transmission system with which its system is interconnected;…’

8Article 32 of that directive, entitled ‘Third-party access’, provides, in paragraph 2 thereof:‘The transmission or distribution system operator may refuse access where it lacks the necessary capacity. … The regulatory authorities where Member States have so provided or Member States shall ensure that those criteria are consistently applied and that the system user who has been refused access can make use of a dispute settlement procedure. …’

9Article 36 of Directive 2009/72, entitled ‘General objectives of the regulatory authority’, provides:‘In carrying out the regulatory tasks specified in this directive, the regulatory authority shall take all reasonable measures in pursuit of the following objectives within the framework of their duties and powers as laid down in Article 37, in close consultation with other relevant national authorities, including competition authorities, as appropriate, and without prejudice to their competencies:…(g) ensuring that customers benefit through the efficient functioning of their national market, promoting effective competition and helping to ensure consumer protection;…’

10According to Article 37 of that directive, entitled ‘Duties and powers of the regulatory authority’:1.The regulatory authority shall have the following duties:…(b) ensuring compliance of transmission and distribution system operators and, where relevant, system owners, as well as of any electricity undertakings, with their obligations under this directive and other relevant [EU] legislation, including as regards cross-border issues;…(h) monitoring compliance with and reviewing the past performance of network security and reliability rules and setting or approving standards and requirements for quality of service and supply or contributing thereto together with other competent authorities;…(m) monitoring the time taken by transmission and distribution system operators to make connections and repairs;(n) helping to ensure, together with other relevant authorities, that the consumer protection measures, including those set out in Annex I, are effective and enforced;…4.Member States shall ensure that regulatory authorities are granted the powers enabling them to carry out the duties referred to in paragraphs 1, 3 and 6 in an efficient and expeditious manner. For this purpose, the regulatory authority shall have at least the following powers:(a) to issue binding decisions on electricity undertakings;…(d) to impose effective, proportionate and dissuasive penalties on electricity undertakings not complying with their obligations under this Directive or any relevant legally binding decisions of the regulatory authority or of the Agency, or to propose that a competent court impose such penalties. This shall include the power to impose or propose the imposition of penalties of up to 10 % of the annual turnover of the transmission system operator on the transmission system operator or of up to 10 % of the annual turnover of the vertically integrated undertaking on the vertically integrated undertaking, as the case may be, for non-compliance with their respective obligations pursuant to this Directive; and(e) appropriate rights of investigations and relevant powers of instructions for dispute settlement under paragraphs 11 and 12.…11. Any party having a complaint against a transmission or distribution system operator in relation to that operator’s obligations under this Directive may refer the complaint to the regulatory authority which, acting as dispute settlement authority, shall issue a decision within a period of two months after receipt of the complaint. This period may be extended by two months where additional information is sought by the regulatory authorities. That period may be further extended with the agreement of the complainant. The regulatory authority’s decision shall have binding effect unless and until overruled on appeal.…’

Netherlands law

11Article 37(11) of Directive 2009/72 was transposed into Netherlands law by Article 51(1) of the Wet houdende regels met betrekking tot de productie, het transport en de levering van elektriciteit (Elektriciteitswet 1998) (Law laying down rules on the production, transmission and supply of electricity (Electricity Law 1998)) of 2 July 1998 (Stb. 1998, No 427). According to that Article 51(1), ‘a party which is in dispute with a grid operator about how it performs its duties and exercises its powers under the present Law or how it fulfils its obligations under that law may lodge a complaint with [ACM]’.

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

12On 27 March 2015, large-scale power failure occurred at the 380-kV Diemen substation (Netherlands), which is part of the high-voltage grid operated by TenneT TSO, and resulted in a large part of the province of Noord-Holland (North Holland) and a small part of the province of Flevoland being without power for several hours.

13The power failure interrupted the transmission of electricity to Crown Van Gelder, which operates, in Velsen-Noord (Netherlands), a paper mill connected to the distribution network managed by Liander NV, which network is fed by the high-voltage grid operated by TenneT TSO.

14Claiming that it had suffered damage as a result of that failure, Crown Van Gelder submitted a complaint before ACM seeking a declaration that TenneT TSO had not done everything reasonably within its power to prevent interruption of electricity transmission service and that the grid design of the Diemen substation did not meet the legal requirements.

15By decision of 30 April 2018, ACM declared that complaint inadmissible on the ground that Crown Van Gelder did not have a direct relationship with TenneT TSO and could not, therefore, be considered a ‘party which is in dispute with a grid operator’ within the meaning of Article 51(1) of the Electricity Law 1998. It found, in that regard, that Crown Van Gelder’s paper mill was not connected to TenneT TSO’s grid, that Crown Van Gelder had not concluded a contract with that grid operator and that it received no invoices from that operator.

16Crown Van Gelder brought an action against that decision before the referring court, the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal for Trade and Industry, Netherlands).

17That court states that the parties to the dispute before it disagree on the interpretation of the concept of ‘any party having a complaint’, within the meaning of Article 37(11) of Directive 2009/72. Before addressing the question, in particular, of whether a complaint may be submitted by a legal person which operates an undertaking connected to the regional grid whose electricity supply has been interrupted by a power failure on the national grid which feeds that regional grid, it considers the scope of that provision not to be so clear as to exclude all reasonable doubt as to its interpretation.

18In those circumstances, the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal for Trade and Industry) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Must Article 37(11) of Directive 2009/72 … be interpreted as meaning that that provision also makes the right of complaint with regard to the operator of the national grid (transmission system operator) available to a party if that party has no connection to the grid of that national grid operator (transmission system operator) but has a connection only to a regional grid (distribution system) to which the transmission of electricity is interrupted as a result of a power cut on the national grid (transmission system) that feeds the regional grid (distribution system)?’

Consideration of the question referred

19By its question, the referring court asks, in essence, whether Article 37(11) of Directive 2009/72 must be interpreted as meaning that the regulatory authority may dismiss a complaint submitted by a final customer against the operator of a transmission system following a power failure in that transmission system, on the ground that that final customer’s installation is connected not to that transmission system directly, but only to a distribution system fed by it.

20Since Article 37(11) of Directive 2009/72 provides that any party having a complaint against a transmission or distribution system operator in relation to that operator’s obligations under that directive may refer the complaint to the regulatory authority which, acting as dispute settlement authority, is to issue a decision within a period of two months after receipt of the complaint, it is necessary, in order to answer the question referred, to interpret the concept of ‘party having a complaint’.

21According to the settled case-law of the Court, it follows from the requirement for the uniform application of EU law and from the principle of equality that the terms of a provision of EU law which does not contain any express reference to the law of the Member States for the purpose of determining its meaning and scope, must be given an autonomous and uniform interpretation throughout the European Union, that interpretation must take into account not only the wording of that provision but also its context and the objective pursued by the legislation in question (judgment of 19 December 2019, GRDF, C‑236/18, EU:C:2019:1120, paragraph 30 and the case-law cited).

22In the case at hand, as regards first of all the wording of Article 37(11) of Directive 2009/72, it is apparent from it that the competence of the regulatory authority, prescribed by that provision, is expressly subject to two conditions. First, the complaint must concern a transmission or distribution system operator. Second, the complaint must relate to obligations imposed on the system operator by that directive.

23It does not follow from the wording of Article 37(11) of Directive 2009/72, however, that the competence of the regulatory authority, on the basis of that provision, is conditional on the existence of a direct relationship between the complainant and the system operator concerned by the complaint.

24In that regard, it should be noted that interpreting the concept of ‘party having a complaint’ as involving such a condition would limit the scope of that concept, whereas the use of the term ‘any’, which precedes the term ‘party’, indicates on the contrary that the concept must be construed broadly. Furthermore, as the Advocate General noted in points 30 to 32 of his Opinion, the term ‘party’ does not necessarily refer to a party to a contract, but may also be understood in the ‘“procedural” sense’ of that term, as referring to persons with an interest in having recourse to the regulatory authority. Moreover, in certain language versions of that provision, terms other than ‘party’ are used, such as ‘Betroffene’ (person concerned) in the German-language version and ‘interessado’ (interested person) in the Portuguese-language version, which do not refer to a party to a contract.

25As regards, next, the context of Article 37(11) of Directive 2009/72, it should be noted that no provision in that directive tends to restrict the scope of the concept of ‘party having a complaint’ by excluding from it persons who do not have a direct relationship with the system operator concerned. On the contrary, Article 32(2) of that directive provides that the user of a system to which access has been refused must be able to make use of a dispute settlement procedure, even though, specifically, in the case of such a user, there is no contractual relationship between the person concerned and the system operator.

26Finally, as regards the objectives pursued by Directive 2009/72, it should be noted that it follows from recitals 37, 42, 51 and 54 of that directive as well as from Article 1 thereof that it aims to grant energy regulators the power to ensure the full effectiveness of consumer protection measures, to ensure that all Union industry and commerce and all citizens of the Union enjoy high levels of consumer protection and have access to dispute settlement mechanisms, to put consumer interests at the heart of the directive, to have that regulatory authorities, where the Member State confers on them that competence, enforce the consumer rights of electricity consumers as well as to implement effective means of dispute settlement for all consumers.

27Likewise, Article 3(7) of Directive 2009/72 requires Member States, inter alia, to ensure high levels of consumer protection, particularly with respect to dispute resolution mechanisms, and Article 36(g) of that directive assigns to the regulatory authorities the objective of helping to ensure consumer protection (see, to that effect, judgment of 23 January 2020, Energiavirasto, C‑578/18, EU:C:2020:35, paragraphs 34 and 35).

28In order to achieve those objectives, Article 37(1)(b) of Directive 2009/72 gives the regulatory authority the task of ensuring that transmission and distribution system operators and, where appropriate, the system owners and electricity undertakings, comply with their obligations under that directive and other applicable EU provisions. To that end, the regulatory authority is to have, inter alia, under Article 37(4)(a), (d) and (e) of that directive, the power to issue binding decisions on electricity undertakings and to impose effective penalties or to propose that a competent court impose such penalties, as well as appropriate rights of investigations and relevant powers of instructions for dispute settlement under Article 37(11) of that directive.

29In the context of the main proceedings, it should also be noted that, under Article 37(1)(h) and (m) of Directive 2009/72, the regulatory authority is responsible for monitoring compliance with and reviewing the past performance of network security and reliability rules and monitoring the time taken by transmission and distribution system operators to make connections and repairs.

30Limiting the right to refer a complaint to the regulatory authority in accordance with Article 37(11) of Directive 2009/72 exclusively to final customers with a direct link to the system operator concerned does not appear to be consistent with the objectives recalled in paragraphs 26 and 27 of the present judgment, in that it restricts consumers’ access to the dispute settlement mechanism and, accordingly, the possibilities, for that authority, to carry out the duties entrusted to it, such as those set out in paragraphs 28 and 29 of this judgment.

31In addition, with regard to transmission system operators in particular, it should be observed that, as the Advocate General noted in point 47 of his Opinion, the tasks and obligations imposed on them by Directive 2009/72 do not concern only those entities whose installation is connected to their network. Thus, in particular, Article 12(a) to (d) of that directive requires them inter alia to operate, maintain and develop under economic conditions secure, reliable and efficient transmission systems, to ensure adequate means to meet service obligations, to contribute to security of supply through adequate transmission capacity and system reliability and to manage electricity flows on the system, taking into account exchanges with other interconnected systems.

32Accordingly, limiting the right to refer a complaint to the regulatory authority in accordance with Article 37(11) of Directive 2009/72 exclusively to final customers with a direct link to the transmission system operator concerned restricts, in particular, the ability of the regulatory authority to carry out, by means of a complaint, the task entrusted to it, inter alia, consisting in ensuring that transmission system operators comply with their obligations under that directive.

33It follows from all the above that the concept of ‘party having a complaint’ cannot be interpreted as involving a direct relationship between the complainant and the transmission system operator concerned by the complaint.

34Thus, while Article 37 of Directive 2009/72 does not require Member States to confer on the regulatory authority the competence to settle disputes between electricity consumers and system operators, but allows them to confer that competence on another authority (see, to that effect, judgment of 23 January 2020, Energiavirasto, C‑578/18, EU:C:2020:35, paragraphs 36 to 40 and 43), that competence, when it is conferred by a Member State on the regulatory authority, cannot be made conditional on the existence of a direct relationship between the complainant and the network operator concerned by the complaint.

35Consequently, where it receives a complaint from a final customer alleging non-compliance with obligations imposed on transmission system operators by Directive 2009/72, the regulatory authority is not entitled to dismiss that complaint on the ground that the installation of that final customer is connected not to that transmission system directly, but only to a distribution system fed by it.

36In the light of all the foregoing considerations, the answer to the question referred is that Article 37(11) of Directive 2009/72 must be interpreted as meaning that the regulatory authority may not dismiss a complaint submitted by a final customer against the operator of a transmission system, following a power failure in that system, on the ground that that final customer’s installation is connected not to that transmission system directly, but only to a distribution system fed by it.

Costs

37Since 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.

Operative part

On those grounds, the Court (Fifth Chamber) hereby rules: In the light of all the foregoing considerations, the answer to the question referred is that Article 37(11) 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 must be interpreted as meaning that the regulatory authority may not dismiss a complaint submitted by a final customer against the operator of a transmission system, following a power failure in that system, on the ground that that final customer’s installation is connected not to that transmission system directly, but only to a distribution system fed by it.