Romaqua Group (Public undertakings - Freedom to conduct a business - Freedom of establishment - Undertaking that is wholly owned by a Member State and holds exclusive concessions for the exploitation of natural mineral water following an award without a competitive tendering procedure - Judgment) [2023] EUECJ C-510/22 (21 September 2023)

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Romaqua Group (Public undertakings - Freedom to conduct a business - Freedom of establishment - Undertaking that is wholly owned by a Member State and holds exclusive concessions for the exploitation of natural mineral water following an award without a competitive tendering procedure - Judgment) [2023] EUECJ C-510/22 (21 September 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/C51022.html Cite as: ECLI:EU:C:2023:694, EU:C:2023:694, [2023] EUECJ C-510/22

(Reference for a preliminary ruling – Articles 102 and 106 TFEU – Public undertakings – Freedom to conduct a business – Freedom of establishment – Undertaking that is wholly owned by a Member State and holds exclusive concessions for the exploitation of natural mineral water following an award without a competitive tendering procedure – National legislation allowing for the unlimited extension of the concession)

REQUEST for a preliminary ruling under Article 267 TFEU from the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania), made by decision of 14 June 2022, received at the Court on 28 July 2022, in the proceedings

composed of L.S. Rossi, President of the Chamber, J.‑C. Bonichot (Rapporteur) and S. Rodin, Judges,

– the European Commission, by L. Armati, M. Mataija and I. Rogalski, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 This request for a preliminary ruling concerns the interpretation of Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Articles 49, 102, 106 and 119 TFEU and Article 3 of Directive 2009/54/EC of the European Parliament and of the Council of 18 June 2009 on the exploitation and marketing of natural mineral waters (OJ 2009 L 164, p. 45).

2 The request has been made in proceedings between Romaqua Group SA, on the one hand, and the Societatea Națională a Apelor Minerale SA (National Company Responsible for Mineral Waters, Romania) (‘the SNAM’) and the Agenția Națională pentru Resurse Minerale (National Agency for Mineral Resources, Romania) (‘the ANRM’), on the other, concerning the rejection of the applicant’s request for the organisation of a public tendering procedure for the award of two concessions for the exploitation of mineral waters.

‘Natural mineral water springs may be exploited and their waters bottled only in accordance with Annex II.’

4 Article 40(1) of Legea nr. 219 privind regimul concesiunilor (Law No 219 on the rules governing concessions), of 25 November 1998 (Monitorul Oficial al României, No 459 of 30 November 1998), in the version applicable to the facts in the main proceedings, provided:

‘Assets that are the public or private property of the State, a county, a city or a municipality, as well as public activities and services of national or local interest, shall be allocated directly, by means of a concession contract, to commercial companies or national companies created through the reorganisation of autonomous authorities which were responsible for the management of those assets, activities or services. The concession contract shall be concluded with the competent concession-granting authority for a period which is to be determined by decision of the Government or of the county or municipal council of the place where the commercial company concerned was created.’

5 Article 46 of Legea minelor nr. 61 (Mining Law No 61), of 5 March 1998 (Monitorul Oficial al României, Part I, No 113 of 16 March 1998), provided:

‘1. Public institutions, national mining companies and commercial companies shall continue their activities only at those sites which are under their management and at which, on the date of publication of this Law, they are carrying out authorised exploration, development or exploitation works.

2. Within 90 days of the date of the entry into force of this Law, public institutions, national mining companies and commercial companies which carry on mining activities shall complete the act of demarcating the exploration, development and exploitation perimeters of the sites referred to in paragraph 1 and shall apply to the competent authority for these to be assigned to them by way of management or concession, in accordance with this Law.’

6 Mining Law No 61 of 5 March 1998 was repealed and replaced by Legea minelor nr. 85 (Mining Law No 85), of 18 March 2003 (Monitorul Oficial al României, Part I, No 197 of 27 March 2003). Article 20(2) of the latter law, as amended and subsequently supplemented (‘Mining Law No 85/2003’), states:

‘Exploitation licences shall be granted for a maximum period of 20 years, with a right of extension for successive periods of 5 years.’

7 Article 32(1) of the Normele pentru aplicarea Legii minelor nr. 85/2003 din 14.10.2003 (detailed rules for the application of Mining Law No 85/2003 of 14 October 2003), as approved by Hotărârea Guvernului nr. 1208/2003 (Government Decision No 1208/2003, Monitorul Oficial al României, Part I, No 772 of 4 November 2003), provides:

‘The holder of an exploitation licence may request the extension of its period of validity, within the limit of the assigned perimeter, by presenting the ANRM with the documents referred to in Article 20(1) of Mining Law [No 85/2003].’

The dispute in the main proceedings and the questions referred for a preliminary ruling

8 In 1997, the Romanian Government created the SNAM to succeed the Regia Autonomă a Apelor Minerale din România (Autonomous Authority Responsible for the Mineral Waters of Romania), which was dissolved.

9 In 1999, the Romanian Government approved the direct award by the ANRM to the SNAM of the concession for the exploitation of all the mineral water resources exploited in Romania for a period of 20 years.

10 By judgment No 136/2001 of 3 May 2001, the Curtea Constituțională (Constitutional Court, Romania) held that the provisions of the first sentence of Article 40(1) of Law No 219 on the rules governing concessions were unconstitutional in so far as they required local public authorities to allocate public property or public activities and services of local interest directly, by means of a concession contract, to specific legal persons.

11 On 19 July 2016, Romaqua Group submitted a request to the ANRM for the immediate transfer of the exploitation licences for the Borsec and Stânceni perimeters (Romania) and for it not to renew the licenses previously awarded directly to the SNAM when they expired at the end of 2018, but to organise a public tendering procedure for the grant of new licences.

12 The ANRM refused to grant those requests, stating, first, that only the concessionaire (the SNAM) could transfer the concession licences, with the prior agreement of the grantor (the ANRM), in accordance with Article 24 of Mining Law No 85/2003 and that, secondly, a public tendering procedure for the appointment of new concessionaire companies could be organised only if the SNAM did not request the extension of the current licences – which it may do every five years – since the grantor could not oppose any such request.

13 For its part, the SNAM indicated that it was not interested in transferring the rights and obligations assumed under its exploitation licences.

14 By an application lodged on 2 November 2016, Romaqua Group claimed that the Curtea de Apel București (Court of Appeal, Bucharest, Romania) should declare that the ANRM’s refusal to grant its request was unjustified and order the ANRM to organise, upon the expiry of the current licences, a public tendering procedure for the award of concessions for the following period.

15 By judgment of 11 June 2019, that court dismissed the action brought by Romaqua Group.

16 Romaqua Group brought an appeal before the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania), the referring court, claiming that national legislation which provides for the de facto retention, without any time limit and by means of successive extensions available to the beneficiary of the direct award, of an exclusive right granted to a company whose capital is wholly owned by the State, is incompatible with several provisions of EU law.

17 In those circumstances, the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is Article 106(1) TFEU to be interpreted as precluding provisions of national legislation, such as those at issue in the main proceedings, which maintain the direct, original and non-competitive award, to a company whose capital is wholly owned by the State, of licences for the exploitation of mineral water springs by means of successive and unlimited extensions of exclusive licences (available to the state-owned company)?

(2) Are Article 16 of the [Charter], Articles 49 and 119 TFEU, and Article 3 of Directive [2009/54] to be interpreted as precluding provisions of national legislation, such as those at issue in the main proceedings and mentioned above, which introduce an unjustified restriction on the freedom to conduct a business, including the freedom of establishment?’

18 According to the Romanian Government, it is apparent from the request for a preliminary ruling as a whole that, in its first question, the referring court did not intend to refer to Article 106(1) TFEU in isolation, which has no independent scope, but to that article read in conjunction with Article 102 TFEU, which prohibits the abuse of a dominant position within a substantial part of the internal market, if it may affect trade between Member States. The Romanian Government submits that the referring court did not, however, provide the Court with the information necessary to allow it to assess the existence of such an abuse of a dominant position in the present case.

19 In that regard, it should be borne in mind that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of a rule of EU law, the Court is in principle bound to give a ruling (judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 24, and of 7 February 2018, American Express, C‑304/16, EU:C:2018:66, paragraph 31).

20 It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of a rule of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 25, and of 7 February 2018, American Express, C‑304/16, EU:C:2018:66, paragraph 32).

21 In the present case, it is true that the Court does not have before it all the material necessary to assess whether the SNAM’s situation constitutes an abuse of a dominant position that is incompatible with Article 102 TFEU.

22 However, it must be noted that the first question referred does not concern the SNAM’s situation, which, moreover, does not fall within the Court’s jurisdiction to assess in a preliminary ruling procedure. It follows from the grounds for the request for a preliminary ruling that the referring court is, in essence, asking the Court whether Article 106(1) TFEU, read in conjunction with Article 102 TFEU, must be interpreted as precluding the national legislation applicable to that undertaking. Although it is not for the Court itself, when giving a preliminary ruling, to rule on the potential incompatibility of the national legislation at issue in the main proceedings with those articles of the FEU Treaty, it does have jurisdiction to interpret them.

23 It is not necessary to that end for the Court to have before it a complete account of the specific situation of the SNAM.

24 It follows that the plea of inadmissibility raised by the Romanian Government must be rejected.

25 By its first question, the referring court asks, in essence, whether Article 106(1) TFEU, read in conjunction with Article 102 TFEU, must be interpreted as precluding national legislation which grants the holder of an exclusive licence for the exploitation of a mineral water spring the possibility of obtaining, without a competitive tendering procedure, an extension of its exploitation licence for successive five-year periods.

26 In the first place, it should be recalled that Article 106(1) TFEU, read in conjunction with Article 102 TFEU, may preclude such national legislation only if it falls within the scope of those two articles.

27 In that regard, Article 106(1) TFEU requires Member States, in the case of public undertakings and undertakings to which Member States grant special or exclusive rights, not to enact or maintain in force any measure contrary to the rules contained in the Treaties, inter alia the rule provided for in Article 102 TFEU.

28 In that regard, the Court has already held that a State measure may be regarded as granting a special or exclusive right within the meaning of Article 106(1) TFEU where it confers protection on a limited number of undertakings and which may substantially affect the ability of other undertakings to exercise the economic activity in question in the same geographical area under substantially equivalent conditions (judgment of 27 March 2019, Pawlak, C‑545/17, EU:C:2019:260, paragraph 43 and the case-law cited).

29 In the present case, since, according to the information supplied by the referring court, the national legislation at issue in the main proceedings confers on certain undertakings an exclusive right to exploit mineral water springs in Romanian territory, it must be held that it falls within the scope of Article 106(1) TFEU.

30 In the second place, Article 102 TFEU prohibits practices consisting in the abuse of a dominant position within the internal market or in a substantial part of it.

31 Under Article 102 TFEU, an abuse of a dominant position requires three conditions to be satisfied.

32 First, the undertaking concerned must have a dominant position within the internal market or in a substantial part of it. In that regard, it should be recalled that an undertaking can be put in such a dominant position when it is granted special or exclusive rights enabling it to determine whether and, as the case may be, in what conditions, other undertakings may have access to the relevant market and engage in their activities on that market (judgment of 1 July 2008, MOTOE, C‑49/07, EU:C:2008:376, paragraph 38). However, the Court has also held that the existence of special or exclusive rights does not necessarily imply the existence of a dominant position in the relevant market (see, to that effect, judgment of 13 December 2007, United Pan-Europe Communications Belgium and Others, C‑250/06, EU:C:2007:783, paragraph 21). In any event, it is necessary to define the relevant market, both from the point of view of the goods or services concerned and from the geographic point of view, in order to assess the existence of a dominant position (see, to that effect, judgment of 1 July 2008, MOTOE, C‑49/07, EU:C:2008:376, paragraph 31 and the case-law cited). It is for the referring court to carry out such an assessment on the basis of the matters of fact and law before it.

33 Secondly, the dominant position must be abused. This occurs where the undertaking in a dominant position makes it more difficult for competitors which are as efficient to enter or remain on the market in question by using means other than those which come within the scope of competition on the merits. In particular, it must refrain from using its dominant position in order to extend that position over another market by means other than those which come within the scope of competition on the merits. Any practice the implementation of which holds no economic interest for a dominant undertaking, except that of eliminating competitors so as to enable it subsequently to raise its prices by taking advantage of its monopolistic position, must be regarded as a means other than those which come within the scope of competition on the merits (judgment of 12 May 2022, Servizio Elettrico Nazionale and Others, C‑377/20, EU:C:2022:379, paragraphs 76 and 77).

34 In addition, the Court has already held that a Member State is in breach of the prohibitions laid down by Article 106(1) TFEU, read in conjunction with Article 102 TFEU, if it adopts any law, regulation or administrative provision that creates a situation in which a public undertaking or an undertaking on which it has conferred special or exclusive rights, merely by exercising the preferential rights conferred upon it, is led to abuse its dominant position or when those rights are liable to create a situation in which that undertaking is led to commit such abuses (see, to that effect, judgments of 10 December 1991, Merci convenzionali porto di Genova, C‑179/90, EU:C:1991:464, paragraph 17, and of 26 October 2017, Balgarska energiyna borsa, C‑347/16, EU:C:2017:816, paragraph 54). In that respect, it is not necessary that any abuse should actually occur (judgments of 1 July 2008, MOTOE, C‑49/07, EU:C:2008:376, paragraph 49, and of 17 July 2014, Commission v DEI, C‑553/12 P, EU:C:2014:2083, paragraph 41).

35 Thirdly, the abuse of a dominant position must affect trade between Member States. This condition can be satisfied only if it is possible to foresee with a sufficient degree of probability, on the basis of a set of objective legal and factual elements, that the behaviour of the undertaking in a dominant position may have an influence, direct or indirect, actual or potential, on trade between Member States in such a way as might hinder the attainment of a single market between Member States. Purely hypothetical effects that the conduct of that undertaking may have do not satisfy that criterion. Similarly, the effect on intra-community trade must not be insignificant (see, to that effect, judgment of 1 July 2008, MOTOE, C‑49/07, EU:C:2008:376, paragraph 39 and the case-law cited). Furthermore, the Romanian Government is correct in observing that, in order to establish with certainty the existence of such an effect on trade between Member States, it is also necessary at the outset to define the market concerned (see, to that effect, judgment of 10 December 1991, Merci convenzionali porto di Genova, C‑179/90, EU:C:1991:464, paragraphs 15 and 20).

36 In light of the foregoing considerations, the answer to the first question is that Article 106(1) TFEU, read in conjunction with Article 102 TFEU, must be interpreted as precluding national legislation which grants the holder of an exclusive licence for the exploitation of mineral water springs the possibility of obtaining, without a competitive tendering procedure, an extension of its exploitation licence for successive five-year periods, where that legislation leads that licence holder, merely by exercising the preferential rights conferred upon it, to abuse its dominant position in a substantial part of the internal market or when those rights are liable to create a situation in which that licence holder is led to commit such abuses, which is for the referring court to assess on the basis of the matters of fact and law before it.

37 By its second question, the referring court asks whether Article 16 of the Charter, Articles 49 and 119 TFEU and Article 3 of Directive 2009/54 are to be interpreted as precluding national legislation such as that at issue in the main proceedings.

38 As a preliminary point, it should be borne in mind that, under Article 94(c) of the Rules of Procedure of the Court of Justice, the request for a preliminary ruling must contain a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the main proceedings, failing which it will be inadmissible.

39 In the first place, the referring court relies on Article 49 TFEU without stating how the interpretation of that article could be of assistance in resolving the dispute in the main proceedings, as required by Article 94(c) of the Rules of Procedure. Moreover, the provisions of the FEU Treaty in relation to the freedom of establishment do not apply to a situation all aspects of which are confined within a single Member State (judgment of 20 March 2014, Caixa d’Estalvis i Pensions de Barcelona, C‑139/12, EU:C:2014:174, paragraph 42). The dispute in the main proceedings, which concerns the exploitation of two mineral water springs in Romania and the parties to which are two Romanian companies and the competent Romanian authority, does not appear to have any cross-border element that might warrant it being linked to the freedom of establishment guaranteed in Article 49 TFEU. It follows that the second question referred is inadmissible in so far as it concerns the interpretation of Article 49 TFEU.

40 In the second place, the referring court also fails to provide any explanation of the reasons which led it to ask the Court to interpret Article 119 TFEU and Article 3 of Directive 2009/54, the latter of which does not, moreover, enact any rules regarding the grant by national authorities of licences for the exploitation of mineral water resources in Member States. Thus, in so far as it refers to those articles, the second question referred does not meet the requirements of Article 94(c) of the Rules of Procedure either and must therefore also be rejected as inadmissible.

41 In the third and last place, no explanation has been given for the reference to Article 16 of the Charter, which guarantees the freedom to conduct a business. Accordingly, the second question is also inadmissible in so far as it concerns the interpretation of that article.

42 It follows from all of the foregoing that the second question referred for a preliminary ruling is inadmissible.

43 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.

must be interpreted as precluding national legislation which grants the holder of an exclusive licence for the exploitation of mineral water springs the possibility of obtaining, without a competitive tendering procedure, an extension of its exploitation licence for successive five-year periods, where that legislation leads that licence holder, merely by exercising the preferential rights conferred upon it, to abuse its dominant position in a substantial part of the internal market or when those rights are liable to create a situation in which that licence holder is led to commit such abuses, which is for the referring court to assess on the basis of the matters of fact and law before it.

Court of Justice of the European Communities (including Court of First Instance Decisions)