5 December 2019 (*1)

(References for a preliminary ruling — Consumer protection — Directive 2011/83/EU — Consumer law — Article 2(1) — Concept of ‘consumer’ — Article 3(1) — Contract concluded between a trader and a consumer — Contract for the supply of district heating — Article 27 — Inertia selling — Directive 2005/29/EU — Unfair business-to-consumer commercial practices in the internal market — Article 5 — Prohibition of unfair commercial practices — Annex I — Unsolicited supply — National law requiring each owner of a property in a building in co-ownership connected to a district heating network to contribute to the costs of thermal energy consumption by the common areas and internal installation of the building — Energy efficiency — Directive 2006/32/EC — Article 13(2) — Directive 2012/27/EU — Article 10(1) — Billing information — National law providing that, in a building in co-ownership, bills for the consumption of thermal energy by the internal installation are calculated, for each owner of an apartment in the building, in proportion to the heated volume of his or her apartment)

In Joined Cases C‑708/17 and C‑725/17,

TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Rayonen sad Asenovgrad (Assenovgrad District Court, Bulgaria) (C‑708/17) and the Sofiyski rayonen sad (Sofia District Court, Bulgaria) (C‑725/17), made by decisions of 6 December 2017 and of 5 December 2017 respectively, received at the Court on 19 December 2017 and 27 December 2017 respectively, in the proceedings

‘EVN Bulgaria Toplofikatsia’ EAD

Nikolina Stefanova Dimitrova (C‑708/17),

‘Toplofikatsia Sofia’ EAD

Mitko Simeonov Dimitrov (C‑725/17),

intervener:

‘Termokomplekt’ OOD,

THE COURT (Fourth Chamber),

composed of M. Vilaras, President of the Chamber, S. Rodin, D. Šváby (Rapporteur), K. Jürimäe and N. Piçarra, Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 12 December 2018,

after considering the observations submitted on behalf of:

– ‘EVN Bulgaria Toplofikatsia’ EAD, by S. Radev and S. Popov, acting as Agents,

– ‘Toplofikatsia Sofia’ EAD, by S. Chakalski, I. Epitropov and V. Ivanov, acting as Agents,

– N. Dimitrova, by S. Memtsov and D. Dekov, advokati,

– the Lithuanian Government, by G. Taluntytė and J. Prasauskienė and by D. Kriaučiūnas, acting as Agents,

– the European Commission, by N. Ruiz García and by K. Talabér-Ritz and N. Nikolova, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 30 April 2019,

gives the following

These requests for a preliminary ruling concern the interpretation of Directive 2005/29/EU 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/EEC, 98/27/EEC and 2002/65/EEC 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/EEC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EEC 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).

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.

Legal context

European Union law

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.’

Article 5 of that directive provides:

‘1. Unfair commercial practices shall be prohibited.

…

Annex I to that directive, headed ‘Commercial practices which are in all circumstances considered unfair’, includes:

‘Aggressive selling practices

…

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).’

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.’

Article 2 of that directive, entitled ‘Definitions’, provides:

‘For the purposes of this Directive, the following definitions shall apply:

“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;

…’

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.

…

…’

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.’

Article 28(2) of Directive 2011/83 provides that ‘provisions of this Directive shall apply to contracts concluded after 13 June 2014’.

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. …

…’

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.’

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.

Under Article 27 of Directive 2012/27, Directive 2006/32 was repealed with effect from 5 June 2014, subject to some exceptions.

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.

…’

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.’

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.

…

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:

hot water for domestic needs;

heat radiated from the building installation for the purpose of heating the common areas (where staircases and corridors are equipped with radiators);

for the purpose of heating apartments.’

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.’

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.’

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.’

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.’

The Bulgarian law

Law on energy

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:

…

…

(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.

…

(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.’

The Law on consumer protection

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.

The Law on property

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.’

The District heating order

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.’

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’.

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’.

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

Case C‑708/17

Ms Dimitrova is the owner of a property in a building in co-ownership connected to district heating.

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.

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.

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).

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.

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.