Oulun Sahkonmyynti (Energy - Cost of access to metering and billing information - Judgment) [2019] EUECJ C-294/18 (02 May 2019)

Judgment This request for a preliminary ruling concerns the interpretation of Article 11(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 request has been made in proceedings brought by Oulun Sähkönmyynti Oy, an electricity retail sales company, with regard to a decision of the Energiavirasto (Energy Agency, Finland) relating to a monthly discount on electricity network charges granted to final customers who have chosen electronic billing. Legal context EU law Recitals 32 and 33 of Directive 2012/27 state: ‘(32) The impact of the provisions on metering and billing in Directives 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)], 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, 94)], has been limited. In many parts of the Union, these provisions have not led to customers receiving up-to-date information about their energy consumption, or billing based on actual consumption at a frequency which studies show is needed to enable customers to regulate their energy use. In the sectors of space heating and hot water in multi-apartment buildings the insufficient clarity of these provisions has also led to numerous complaints from citizens. (33) In order to strengthen the empowerment of final customers as regards access to information from the metering and billing of their individual energy consumption, bearing in mind the opportunities associated with the process of the implementation of intelligent metering systems and the roll out of smart meters in the Member States, it is important that the requirements of Union law in this area be made clearer. This should help reduce the costs of the implementation of intelligent metering systems equipped with functions enhancing energy saving and support the development of markets for energy services and demand management. Implementation of intelligent metering systems enables frequent billing based on actual consumption. However, there is also a need to clarify the requirements for access to information and fair and accurate billing based on actual consumption in cases where smart meters will not be available by 2020, including in relation to metering and billing of individual consumption of heating, cooling and hot water in multi-unit buildings supplied by district heating/cooling or own common heating system installed in such buildings.’ Article 1 of Directive 2012/27, entitled ‘Subject matter and scope’, provides: ‘1. 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 2020 20% headline target on energy efficiency and to pave the way for further energy efficiency improvements beyond that date. … 2. The requirements laid down in this Directive are minimum requirements and shall not prevent any Member State from maintaining or introducing more stringent measures. Such measures shall be compatible with Union law. Where national legislation provides for more stringent measures, the Member State shall notify such legislation to the Commission.’ Article 10 of that directive, entitled ‘Billing information’, provides, in paragraph 3 thereof: ‘Independently of whether smart meters have been installed or not, Member States: … (b) shall ensure that final customers are offered the option of electronic billing information and bills and that they receive, on request, a clear and understandable explanation of how their bill was derived, especially where bills are not based on actual consumption; …’ Article 11 of that directive, entitled ‘Cost of access to metering and billing information’, provides in paragraph 1 thereof: ‘Member States shall ensure that final customers receive all their bills and billing information for energy consumption free of charge and that final customers also have access to their consumption data in an appropriate way and free of charge.’ Annex VII to Directive 2012/27, entitled ‘Minimum requirements for billing and billing information based on actual consumption’, states in point 1.1, which concerns ‘billing based on actual consumption’, as follows: ‘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 customers have opted to receive electronic billing or else twice yearly. Gas used only for cooking purposes may be exempted from this requirement.’ Finnish law Article 11(1) of Directive 2012/27 was transposed into Finnish law by Paragraph 69 of the sähkömarkkinalaki (588/2013) (Law (588/2013) on the electricity market). That paragraph, entitled, ‘Billing by retail sales companies’, provides in its fifth subparagraph that ‘the bills and information relating to prices and consumption are to be provided to the final customer in an appropriate way and free of charge’ and that ‘the final customer, if he so wishes, shall receive bills and information on consumption electronically’. The dispute in the main proceedings and the questions referred for a preliminary ruling The price of electricity sold by Oulun Sähkönmyynti consists of a fixed monthly tariff for network charges and the price of energy based on electricity consumption. Network access charges are normally EUR 2.50 per month. From 1 January 2016, Oulun Sähkönmyynti granted a EUR 1 discount on network access charges to clients who had chosen electronic billing, but not for those clients who had chosen other billing methods, such as paper billing, direct debits and, for clients which are undertakings, online billing. By decision of 20 June 2017, the Energy Agency considered that that discount amounted to a requirement for clients who had not chosen electronic billing to pay EUR 1 for their own bills. Therefore, it ordered Oulun Sähkönmyynti to change its billing practices and to guarantee the right of its clients to receive their bills free of charge. Furthermore, by the same decision, the Energy Agency requested Oulun Sähkönmyynti to reimburse the part of the fees which, from 1 January 2016, had been incorrectly charged to clients who had not chosen electronic billing. Oulun Sähkönmyynti brought an action against that decision before the markkinaoikeus (Market Court, Finland), which is the referring court. In support of that action, Oulun Sähkönmyynti claims that all its customers receive their electricity bills free of charge, irrespective of the billing method they have chosen. However, it argues that the requirement that bills are to be sent free of charge does not mean that it cannot grant a discount on network charges to customers who have chosen electronic billing. Furthermore, the discount granted to its customers is not based on an actual reduction of costs, but on the assessment of the effects of that discount. The frequency of billing does not affect the amount of network charges or that of the discount, as customers may chose 4, 6 or 12 bills per annum. In addition, electronic billing enables administrative costs to be reduced. The Energy Agency asserts that the discount at issue in the main proceedings amounts to a circumvention of the rule that all customers are to receive their electricity bills free of charge. For the final customer, it matters little whether a separate charge is included in the bill, or whether the network charge is higher because he has chosen a billing method other than electronic billing. The Energy Agency adds that only its interpretation ensures that final customers who do not have access to electronic services, and who are often also the most vulnerable, receive their electricity bills free of charge. The referring court explains that Article 11(1) of Directive 2012/27 and the fifth subparagraph of Paragraph 69 of Law (588/2013) on the electricity market require that bills and billing information are to be provided to final customers free of charge and in an appropriate way. However, according to the Commission working documents relating to Articles 9 to 11 of Directive 2012/27 (SWD/2013/0448/final), the requirement to send bills and billing information free of charge does not preclude an electricity retail sales company from giving a discount or bonus to final customers who choose electronic billing. That court observes that, on one hand, even if that Commission working document does not constitute a binding source of law, within the meaning of Article 288 TFEU, and does not alter the legal effects of Directive 2012/27, it is possible to interpret Article 11(1) thereof in the way suggested by Oulun Sähkönmyynti, that is to say that only the fact that the bill is free of charge is relevant. However, on the other hand, as the Energy Agency argues, the situation in which the final customer who has not chosen electronic billing is charged higher network access costs may be regarded as a situation in which a specific payment is requested in exchange for a paper bill. Furthermore, the referring court states that it does not appear from the evidence at issue in the main proceedings that the Republic of Finland has adopted national measures which are stricter than those laid down by Article 11(1) of Directive 2012/27. In those circumstances, the markkinaoikeus (Market Court) decided to stay the proceedings and refer the following three questions to the Court of Justice for a preliminary ruling: ‘(1) Is Article 11(1) of [Directive 2012/27] to be interpreted in such a way that the grant of a discount on network charges, which is based on the billing method chosen by the final customer, means that billing and billing information has not been provided free of charge to final customers other than those receiving the discount? (2) If the answer to the first question referred is in the negative and the grant of the abovementioned discount is permitted, does it follow from Directive 2012/27 that, in order to determine whether the discount is permitted, additional special conditions must be taken into account, such as whether the discount corresponds to the cost savings achieved with the chosen type of billing, whether or not the discount is granted on each bill, or whether the discount may be granted to the group of final customers who make cost savings with their choice of billing method? (3) If the grant of the discount referred to in Question 1 means that final customers other than those who have chosen a particular billing method are required to pay charges contrary to Article 11(1) of Directive 2012/27, are there any specific requirements of EU law to be taken into account in the decision on reimbursement of those payments?’ Consideration of the questions referred The first and second questions By its first and second questions, which it is appropriate to examine together, the referring court asks essentially whether Article 11(1) of Directive 2012/27 must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, it precludes a discount on electricity network charges granted by an electricity retail sales company exclusively to final customers who opted for electronic billing. As is clear from the request for a preliminary ruling, the referring court raises those questions because, from its point of view, the grant of a discount on the electricity network charges to final customers who have chosen electronic billing could imply that other customers do not receive their bills free of charge. Under Article 11(1) of Directive 2012/27 ‘Member States are to ensure that final customers receive all their bills and billing information for energy consumption free of charge and that final customers also have access to their consumption data in an appropriate way and free of charge’. In accordance with settled case-law, when interpreting a provision of EU law, it is necessary to consider not only its wording but also its context and the objectives pursued by the rules of which it is part (judgments of 2 September 2015, Surmačs , C‑127/14, EU:C:2015:522 , paragraph 28, and of 16 November 2016, DHL Express (Austria) , C‑2/15, EU:C:2016:880 , paragraph 19). It is clear from the wording of Article 11(1) of Directive 2012/27 that that provision merely lays down the obligation for Member States to ensure that electricity retail sales companies ensure that their final customers receive their bills and billing information relating to energy consumption free of charge and does not impose any additional requirements in relation to that obligation. Therefore, if the bills and billing information are sent free of charge to final customers, that provision does not prevent the customer concerned being granted a discount on network charges. That literal interpretation of Article 11(1) of Directive 2012/27 is supported by its context and the objectives pursued by that directive. In accordance with Article 1 thereof, Directive 2012/27 aims solely to establish a common framework of measures for the promotion of energy efficiency within the European Union in order to ensure the achievement of the objective set by the Union to increase energy efficiency by 20% by 2020 and to pave the way for further energy efficiency improvements beyond that date (judgment of 7 August 2018, Saras Energía , C‑561/16, EU:C:2018:633 , paragraph 24). Specifically, it is clear from recitals 32 and 33 thereof, that that directive essentially emphasises, inter alia, the need to make it easier for final customers to access information relating to the metering and billing of their individual energy consumption, the implementation of intelligent metering systems, frequent billing based on actual consumption, access to information and fair and accurate billing. Furthermore, it is clear from Article 10(3)(b) of that directive, according to which Member States ‘shall ensure that final customers are offered the option of electronic billing information and bills and that they receive, on request, a clear and understandable explanation of how their bill was derived, especially where bills are not based on actual consumption’, that there is an intention to promote electronic billing. Thus, it must be observed that the possibility offered by electronic billing to make information related to billing and individual energy consumption more accessible and more frequent may contribute to the achievement of the objectives of Directive 2012/27 in terms of energy efficiency. Consequently, the fact that a discount on electricity network charges is granted, while observing the requirements of Article 11(1) of Directive 2012/27, pursuant to which the bills and information on billing are sent without charge to the final customer, is not incompatible with the objectives pursued by that directive. Finally, the discount granted to customers who choose electronic billing is intended, inter alia, to reduce the administrative costs of the electricity retail sales company. In order to be able to streamline administrative costs, that company must have means of encouraging final customers to accept changes to their billing habits more easily, which may, where appropriate, lead to the adoption of electronic billing. Interpreting Article 11(1) of Directive 2012/27 as prohibiting electricity retail sales companies from granting a discount on network charges to final customers who choose electronic billing would deprive such a company of that possibility. Furthermore, contrary to the Finnish Government’s submissions, granting a discount on network charges to final customers who have chosen electronic billing cannot, in circumstances such as those at issue in the main proceedings, be regarded as constituting a circumvention of the rule laid down in Article 11(1) of Directive 2012/27 that bills and billing information must be free of charge. It is clear from the order for reference that Oulun Sähkönmyynti granted the discount on already existing network charges to final customers who had chosen electronic billing and that, before the introduction of such a discount, there had never been any complaints against Oulun Sähkönmyynti for failing to comply with the obligation to provide bills and billing information free of charge. Furthermore, after the introduction of that discount, final customers who had chosen a billing method other than electronic billing continued to receive all their bills and billing information relating to their energy consumption free of charge and to pay the same amount for network charges. It is also apparent that customers pay network charges regardless of whether they wish to receive the bill and billing information 4, 6 or 12 times per year. Therefore, in circumstances such as those at issue in the main proceedings, the discount on electricity network charges granted to final customers who have chosen electronic billing cannot be regarded as being an actual payment imposed on other final customers and, therefore, as a circumvention of the obligation imposed by Article 11(1) of Directive 2012/27. It follows from all of the foregoing considerations that the answer to the first and second questions is that Article 11(1) of Directive 2012/27 must be interpreted as not precluding, in circumstances such as those at issue in the main proceedings, a discount on electricity network charges granted by an electricity retail sales company exclusively to final customers who have chosen electronic billing. The third question The third question was referred in the event that the answer to the first question was in the affirmative. In view of the negative answer given to that question, as is clear from paragraphs 18 to 32 of the present judgment, there is no need to answer the third question. Costs Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Tenth Chamber) hereby rules: Article 11(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 must be interpreted as not preluding, in circumstances such as those at issue in the main proceedings, a discount on electricity network charges granted by an electricity retail sales company exclusively to final customers who have chosen electronic billing. [Signatures] * Language of the case: Finnish. © European Union The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice . This electronic version is not authentic and is subject to amendment. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII