(Failure of a Member State to fulfil obligations – Directive 2003/55/EC – Internal market in natural gas – Definitive designation of system operators – Decision exempting major new gas infrastructures from the application of certain provisions of Directive 2003/55/EC – Publication, consultation and notification obligations)

Summary of the Judgment

1. Approximation of laws – Measures for approximation – Common rules for the internal market in natural gas – Directive 2003/55

(Art. 249, third para., EC; European Parliament and Council Directive 2003/55, Art. 22(3)(d))

(Art. 249, third para., EC; European Parliament and Council Directive 2003/55, Art. 22(3)(e) and (4))

1.Since Article 22(3)(d) of Directive 2003/55 concerning common rules for the internal market in natural gas requires that all decisions concerning exemptions granted to the operator be published, the general principles of the law of a Member State concerning the publication of measures, according to which all measures which affect a large number of persons must be published, cannot be regarded as ensuring the correct and complete transposition of that provision of the Directive, if that Member State fails to adduce any evidence which proves precisely and with certainty that exemption decisions are always considered to be of general public importance and therefore always published.

The existence of general principles of constitutional or administrative law may render superfluous transposition by specific legislative or regulatory measures, provided, however, that those principles actually ensure the full application of the Directive by the national authorities and that, where the relevant provision of the Directive seeks to create rights for individuals, the legal situation arising from those principles is sufficiently precise and clear and that the persons concerned are put in a position to know the full extent of their rights and, where appropriate, to be able to rely on them before the national courts.

(see paras 41-42)

2.The effect of the third paragraph of Article 249 EC is that Community directives must be implemented by appropriate measures taken by the Member States. The fact that, in specific circumstances, where the implementing measures required have not been adopted or measures have been adopted which are not consistent with a directive, the persons affected thereby are entitled to rely in law on a directive as against a defaulting Member State cannot justify a Member State absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive. Similarly, and a fortiori, the fact that certain provisions of the Directive in question are directly applicable in the national legal system is not grounds for relieving the Member States of their obligations to transpose Community law.

Thus, a Member State which fails to transpose Article 22(3)(e) concerning the requirement to consult with the Member States concerned beforehand in the case of an interconnector, and which merely provides for requests for an exemption to be communicated to the Commission, whereas Article 22(4) imposes the obligation to notify to the Commission the final exemption decision together with all the relevant information with respect thereto, fails to fulfil its obligations under Article 22(3)(e) and (4) of Directive 2003/55 concerning common rules for the internal market in natural gas.

(see paras 44-46)

3 December 2009 (*)

(Failure of a Member State to fulfil obligations – Directive 2003/55/EC – Internal market in natural gas – Definitive designation of system operators – Decision exempting major new gas infrastructures from the application of certain provisions of Directive 2003/55/EC – Publication, consultation and notification obligations)

In Case C‑475/08,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 5 November 2008,

European Commission, represented by M. Patakia and B. Schima, acting as Agents, with an address for service in Luxembourg,

applicant,

Kingdom of Belgium, represented by C. Pochet, acting as Agent, and J. Scalais and O. Vanhulst, avocats,

defendant,

THE COURT (Sixth Chamber),

composed of J.‑C. Bonichot, President of the Fourth Chamber, acting for the President of the Sixth Chamber, C. Toader (Rapporteur) and P. Kūris, Judges,

Advocate General: V. Trstenjak,

Registrar: R. Grass,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

–by failing to designate the system operators as required under Article 7 of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57; ‘the Directive’); and

–by providing not only for the regulated access, but also for the negotiated access, of third parties to the system, contrary to Article 18 of the Directive, read in conjunction with Article 25(2) thereof; and

–by failing to transpose Article 22(3)(d) and (e) and (4) of the Directive,

the Kingdom of Belgium has failed to fulfil its obligations under the Directive.

Legal framework

The Directive

‘Member States shall designate or shall require natural gas undertakings which own transmission, storage or LNG facilities to designate, for a period of time to be determined by Member States having regard to considerations of efficiency and economic balance, one or more system operators. Member States shall take the measures necessary to ensure that transmission, storage and LNG system operators act in accordance with Articles 8 to 10.’

‘Member States shall designate, or shall require undertakings which own or are responsible for distribution systems to designate, for a period of time to be determined by Member States, having regard to considerations of efficiency and economic balance, one or more distribution system operators and shall ensure that those operators act in accordance with Articles 12 to 14.’

‘1. Major new gas infrastructures, i.e. interconnectors between Member States, LNG and storage facilities, may, upon request, be exempted from the provisions of Articles 18, 19, 20 [concerning, respectively, access to systems, access to storage facilities and access to upstream pipeline networks], and 25(2), (3) and (4) [concerning regulatory authorities] under the following conditions:

…

…

(d) The exemption decision … shall be duly reasoned and published.

(e) In the case of an interconnector any exemption decision shall be taken after consultation with the other Member States or regulatory authorities concerned.

…’

6. Article 33 of the Directive lays down the general rule in accordance with which Member States were to bring into force the provisions necessary to comply with the Directive not later than 1 July 2004.

The Belgian law transposing the Directive

‘Further to an opinion from the Commission for Banking, Finance and Insurance concerning the criteria referred to in paragraph 3, and to an opinion from the [Energy and Gas Regulatory] Commission concerning the remaining criteria, and after discussion in the Council of Ministers, the [Federal] Minister [whose portfolio includes Energy] shall, within nine months of the date of publication of the opinion referred to in paragraph 2, following a proposal from one or more holders of a natural gas transmission authorisation, designate:

1 the operator responsible for the management of the natural gas transmission system;

2 the natural gas storage facility operator and the LNG facility operator, for a renewable term of twenty years.

‘Notwithstanding Article 8, from the date on which this Article enters into force, the natural gas undertaking which on 1 July 2004 held one or more natural gas transmission authorisations pursuant to this Law and its implementing decrees or natural gas storage authorisations, including authorisations issued under the Law of 18 July 1975 (loi du 18 juillet 1975) and its implementing decrees, shall be designated, as appropriate:

1. natural gas transmission system operator;

All three designations shall remain in force until the operator concerned has been designated definitively, in accordance with Article 8, or until the designation is rejected as unacceptable by the [Federal] Minister [whose portfolio includes Energy].’

‘The following conditions shall apply to each of the three operators referred to in Articles 8 and 8/1, whether a listed company or otherwise:

1. the operator must be constituted in the form of a public limited company, with its seat and central administration in a Member State of the European Economic Area,

‘1. Major new natural gas infrastructures, that is to say, interconnectors between neighbouring States, LNG facilities and storage facilities may be exempted from the provisions of this Chapter and those relating to the tariff methodology, with the exception of Articles 15/7, 15/8 and 15/9. That exemption shall be granted by the King, further to an opinion from the [Energy and Gas Regulatory] Commission ...

…

Pre-litigation procedure

The action

The first complaint, alleging failure to transpose Article 7 of the Directive

Admissibility

– Arguments of the parties

– Findings of the Court

Substance

– Arguments of the parties

– Findings of the Court

The third complaint, alleging failure to transpose Article 22(3)(d) and (e) and (4) of the Directive

Arguments of the parties

Findings of the Court

[2005] ECR I‑5335, paragraph 51).

42In the present case, as regards the transposition of Article 22(3)(d) of the Directive, concerning the publication of exemption decisions, it must be pointed out that the general principles of Belgian law concerning the publication of measures, relied on by the Kingdom of Belgium, according to which all measures which affect a large number of persons must be published, cannot be regarded as ensuring the correct and complete transposition of that provision of the Directive. The Directive requires that all decisions concerning exemptions granted to the operator be published. However, the Kingdom of Belgium has not adduced any evidence which proves precisely and with certainty that exemption decisions are always considered to be of general public importance and therefore always published.

43Accordingly, as the Commission has pointed out, since those general principles do not ensure the correct and complete application of Article 22(3)(d) of the Directive, it must be found that the Kingdom of Belgium has not transposed that provision correctly.

44As regards the arguments put forward by the Kingdom of Belgium as to the absence of any obligation to transpose the provisions of the Directive concerning the requirement to consult with the Member States concerned beforehand in the case of an interconnector, and the requirement to notify exemption decisions to the Commission, it should be noted that, according to settled case-law, the effect of the third paragraph of Article 249 EC is that Community directives must be implemented by appropriate measures taken by the Member States. The fact that, in specific circumstances, where the implementing measures required have not been adopted or measures have been adopted which are not consistent with a directive, the persons affected thereby are entitled to rely in law on a directive as against a defaulting Member State cannot justify a Member State absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive (see, to that effect, Case 102/79 Commission v Belgium [1980] ECR 1473, paragraph 12; Case C-433/93 Commission v Germany [1995] ECR I‑2303, paragraph 24; and Case C-253/95 Commission v Germany [1996] ECR I-2423, paragraph 13). Similarly, and a fortiori, the fact that certain provisions of the Directive in question are directly applicable in the national legal system is not grounds for relieving the Member States of their obligations to transpose Community law.

45Lastly, Article 15/5(4) of the Gas Law, which provides that requests for an exemption must be communicated to the Commission, cannot be regarded as transposing Article 22(4) of the Directive, since that provision imposes the obligation to notify to the Commission the final decision together with all the relevant information with respect thereto.

46It must therefore be held that, by failing to transpose Article 22(3)(d) and (e) and (4) of the Directive, the Kingdom of Belgium has failed to fulfil its obligations under those provisions.

Costs

47Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Kingdom of Belgium has been unsuccessful, it must be ordered to pay the costs.

On those grounds, the Court (Sixth Chamber) hereby:

1. Declares that, by failing to designate transmission, storage and liquefied natural gas system operators on a definitive basis as required under Article 7 of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC, and by failing to transpose Article 22(3)(d) and (e) and (4) of that directive, the Kingdom of Belgium has failed to fulfil its obligations under those provisions;

[Signatures]

Language of the case: French.