After unsuccessfully challenging that decision before an administrative judge, Green Network appealed to the Italian Council of State, before which it argued that the power of the national regulatory authority to order the return of sums invoiced to customers, provided for by Italian law, was contrary to Directive 2009/72
In this context, the Consiglio di Stato referred two questions to the Court for a preliminary ruling concerning Article 37, paragraphs 1 and 4, of Directive 2009/72, relating to the powers of regulatory authorities, and Annex I of that directive , which mentions the measures that Member States must take to protect consumers.
In its judgment, the Court states that Article 37(1)(i) and (n) 2 , and Article 37(4)(d) 3 of Directive 2009/72, as well as Annex I thereto, do not preclude a Member State to confer on the national regulatory authority the power to order electricity companies to return to their final customers the sum corresponding to the consideration paid by the latter as “administrative management costs” in application of a contractual clause considered illegitimate by the said authority.
This also applies if the return order in question is not based on reasons relating to the quality of the service in question provided by those companies, but on the infringement of tariff transparency obligations.
Judgment of the Court
The Court points out, first of all, that, for the purpose of pursuing the objectives of Directive 2009/72, the latter requires the Member States to confer on their national regulatory authorities extensive powers in the field of regulation and surveillance of the electricity market, in particular to ensure consumer protection.
It then notes that Article 37 of Directive 2009/72, relating to the duties and powers of the regulatory authority, does not mention the power to require electricity companies to repay any sum received under a contractual term considered to be unlawful . However, the use, in Article 37(4) of Directive 2009/72, of the expression ‘the regulatory authority shall be conferred at least the following powers’ indicates that powers other than those expressly mentioned in that Article 37(4) 4, can be attributed to such an authority in order to allow it to carry out its tasks referred to in article 37, paragraphs 1, 3 and 6, of that directive.
Furthermore, ensuring compliance with the transparency obligations incumbent on electricity companies and protecting consumers are among the tasks of national regulatory authorities covered by Article 37(1), (3) and (6) of that Directive.
The Court therefore finds that a Member State may confer on the regulatory authority the power to order those operators to repay the sums they have received in breach of the provisions on consumer protection, and in particular those relating to the obligation to transparency and accuracy of billing.
Such an interpretation is not called into question by the fact that Article 36 of Directive 2009/72 essentially states that the national regulatory authority shall take the necessary measures ‘in close consultation with other relevant national authorities, including the supervisory authorities competition, where appropriate, and without prejudice to their respective competences’, or that Article 37(1)(n) of that directive contains the expression ‘in cooperation with other competent authorities’.
Indeed, it does not follow from the above provisions that, in a case such as that at issue in the main proceedings, only one of those other national authorities can order the repayment of sums wrongfully collected by the electricity companies from final customers. Conversely, the use of the words ‘where appropriate’ implies that such consultation is only necessary if the intended measure may have implications for other competent authorities.
Finally, the Court clarified that to the extent that consumer protection and compliance with transparency obligations are among the tasks set out in Article 37 of Directive 2009/72, the exact reason why, in order to fulfill one of these tasks , an electricity company is ordered to reimburse its customers is not relevant.
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