A national energy regulator may have the power to order electricity undertakings to repay sums received in breach of consumer protection requirements, the Court of Justice of the European Union ruled on Thursday 30 March (C-5/22).
In Italy, Green Network challenged the administrative penalty of €655,000 imposed on it by the national regulatory authority for having breached tariff transparency obligations and the obligation to reimburse almost €14 million charged to final customers for administrative management costs pursuant to a contractual clause considered to be unlawful.
The Italian company considered that the national authority has no competence in this matter under the Directive (2009/72) governing the internal market in electricity.
On a reference from the Italian Council of State, the Court is of the opinion that EU law does not preclude a Member State from conferring on a national regulatory authority the power to order electricity undertakings to reimburse their final customers for undue management costs pursuant to a contractual term considered to be unlawful by that authority. The same applies to a fine based on the violation of tariff transparency obligations.
The Court noted that the Directive grants the national regulatory authority “at least” the powers listed in the legislative text Article 37, so that a Member State may confer on it other powers, including the one challenged by Green Network. Such an interpretation is not called into question, according to the Court, by the fact that the Directive provides that the national regulatory authority shall adopt measures “in close consultation, where appropriate, with the other national authorities concerned, including competition authorities, and without prejudice to their competencies”.
See the Court’s judgment: https://aeur.eu/f/652 (Original version in French by Mathieu Bion)