In EVN judgment Bulgaria Toplofikatsia (C-708/17 and C-725/17), issued on 5 December 2019, The Court examined the compatibility of national provisions on the supply of heat and held that Directive 2011/83 on consumer rights (1) and Directive 2005/29 concerning unfair commercial practices (2) they do not preclude national rules requiring the owners of a dwelling in the building where the housing community is connected to the heating network to participate in the consumption costs of heat in the common parts and in the internal installation of the building, although they individually did not order the supply of heating and do not use it in their dwellings.
With regard to the same provisions, the Court also held that Directive 2006/32 (3) and Directive 2012/27 (4) on energy efficiency shall not prevent the establishment of accounts relating to this consumption, for each owner of the dwelling in the housing community, in proportion to the heated volume of his dwelling.
Disputes in main proceedings concern two actions for the payment of bills to property owners in the housing community relating to the use of heat in the internal installation and in the common parts of those buildings which refuse to pay those accounts. They consider that, although their building is operated by a heating network under a supply agreement concluded between the residential community and the supplier of heat, they did not, however, give individual consent to the reception of network heating and do not use it in their homes.
The Court ruled on how the consumption of heat in housing communities is accounted for. He indicated that according to Directive 2006/326 Member States shall ensure that end-users in areas, in particular electricity and grid heating, are able to obtain individual meters that accurately determine their actual consumption, where technically feasible
The Court first examined the interpretation of the concept of ‘consumer’ in the understanding Directive 2011/83 (5) and held that this concept includes, as customers of the energy supplier, owners and holders of the right to use immovable property in the building in which the housing community is connected to the heating network, if they are natural persons not engaged in commercial or professional activities. The Court therefore concluded that the supply contracts for network heating which are the subject of the main proceedings fall within the category of contracts concluded between traders and consumers within the meaning of Article 3(1) Directive 2011/83.
The Court then clarified the concept of ‘unsolicited supply’ of goods within the meaning of Article 27 Directive 2011/83, stating that the supply of heat to an internal installation and, consequently, part of the common building in which the residential community is situated following a resolution adopted by the residential community of that building on its connection to the heating network does not constitute, in accordance with national law, an unsolicited supply of network heating.
Finally, the Court ruled on how the consumption of heat in housing communities should be accounted for.
He indicated that according to Directive 2006/326 Member States shall ensure that end-users in the fields, in particular electricity and grid heating, can obtain individual meters that accurately determine their actual consumption, where technically feasible.
However, in the Court's view, it is difficult to imagine the possibility of fully individualising heating accounts, in particular with regard to internal installations and common parts, given that dwellings in such a building are not thermally independent, as heat circulates between heated premises and those which are less heated or not heated at all.
In those circumstances, the Court held that, in view of the wide margin of freedom available to the Member States for the method of calculating the consumption of heat in buildings in which the housing community is situated, Directive 2006/32 and Directive 2012/27 they do not prevent the calculation of the heat emitted by the internal installation of such a building from being made in proportion to the heated volume of each dwelling.
1 Directive 2011/83 of 25 October 2011 on consumer rights, amending Directive 93/13 and Directive 1999/44 and repealing Directive 85/577 and Directive 97/7 (Official Journal of the European Union L (2011), No. 304, p. 64), Article 27.
2 Directive 2005/29 of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Directive 84/450, Directive 97/7, 98/27/WE and Directive 2002/65 the European Parliament and the Council, and Regulation (EU) 2006/2004 of the European Parliament and of the Council (the Unfair Commercial Practices Directive) (Official Journal of the European Union L (2005), No. 149, p. 22), Article 5(1)(5).
3 Directive 2006/32 of 5 April 2006 on energy end-use efficiency and energy services and repealing Directive 93/76 (Official Journal of the European Union L (2006), No. 114, p. 64), Article 13(2).
4 Directive 2012/27 of 25 October 2012 on energy efficiency, changes Directive 2009/125 and Directive 2010/30 and repeal Directive 2004/8 and Directive 2006/32 (Official Journal of the European Union L (2012), No. 315, p. 1), Article 10(1).
5 Article 2(1) Directive 2011/83.