The Court of Justice of the European Union (CJEU) said in a ruling handed down on Thursday, 11 June, (case C-378/19) that the EU directive (2009/72) concerning the electricity market does not prohibit a Member State’s government from nominating or dismissing the chairman of the national regulatory authority, provided that the independence of the authority is duly guaranteed.
The ruling follows an action brought before the Slovak Constitutional Court in October 2017 by the former president of Slovakia (and continued by the current president) due to the power to nominate and dismiss the chairman of the national regulatory authority being transferred from the President of the Republic to the Government.
The action further reports that the group of those who are party to tariff regulation before this authority was enlarged to include representatives from national ministries.
In the Slovak president’s opinion, the country’s legislature has thus undermined the independence of the regulatory authority on two counts: being in violation of the Slovak Constitution and EU Directive 2009/72.
Having been referred this case, the CJEU ultimately ruled that the transfer of power from the President of the Republic to the Government does not in and of itself constitute a breach of the directive. The court states that although the directive requires Member States to ensure that the national regulatory authority carries out its work free from any external influence, the directive does not specify which Member State authority or authorities may nominate and dismiss the members of the board or the senior management of the national regulatory authority, including its chairman.
Similarly, the CJEU has stressed that the directive does not in and of itself prohibit representatives from national ministries from participating in certain tariff regulation procedures.
In the CJEU’s view, it thus falls to the Slovak Constitutional Court to verify that the two measures challenged by the country’s president do not lead to a violation of the national regulatory authority’s independence in light of Slovak law.
See the judgment (in French): https://bit.ly/37lx0uQ (Original version in French by Damien Genicot)