Judgment of the Court (Sixth Chamber) of 29 October 2009 – Commission v Belgium

(Case C‑474/08)

Failure of a Member State to fulfil obligations – Failure to adopt all the provisions necessary to comply with Article 23(2) and (5) of Directive 2003/54/EC concerning common rules for the internal market in electricity – Powers of the regulatory authority in the electricity sector

1. Approximation of laws – Measures for the establishment and proper functioning of the internal market in electricity – Directive 2003/54 (European Parliament and Council Directive 2003/54, Art. 23(5)) (see para. 23)

2. Approximation of laws – Measures for the establishment and proper functioning of the internal market in electricity – Directive 2003/54 (European Parliament and Council Directive 2003/54, Art. 23(2)(a)) (see para. 31)

Re:

Operative part

The Court:

1.Declares that

– by failing to provide that cases of refusal of access to the electricity distribution or transmission systems may be submitted to the regulatory authority which must then issue a binding decision within a period of two months, in accordance with the provisions of Article 23(5) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC, and

– by attributing to an authority other than the regulatory authority the power to define criteria which are decisive for the calculation of tariffs as regards certain electricity transmission installations, contrary to the provisions of Article 23(2)(a) of Directive 2003/54,

the Kingdom of Belgium has failed to fulfil its obligations under that directive;

2.Orders the Kingdom of Belgium to pay the costs.